Text,INDIAN POLITY
THE INDIAN PENAL CODE,
CHAPTER I INTRODUCTION,
The Indian Penal Code was drafted by the First Indian Law Commission presided over,
by Lord Thomas Babington Macaulay. The draft underwent further revision at the hands,
"of well-known jurists, like Sir Barnes Peacock, and was completed in 1850. The Indian",
Penal Code was passed by the then Legislature on 6 October 1860 and was enacted as,
Act No. XLV of 1860.,
Preamble. WHEREAS it is expedient to provide a general,
Penal Code for India; It is enacted as follows:—,
"COMMENT.—The Indian Penal Code, 1860 (IPC, 1860) exhaustively codifies the law",
relating to offences with which it deals and the rules of the common law cannot be,
resorted to for inventing exemptions which are not expressly enacted.1. It is not,
"necessary and indeed not permissible to construe the IPC, 1860 at the present day in",
accordance with the notions of criminal jurisdiction prevailing at the time when the,
Code was enacted. The notions relating to this matter have very considerably changed,
between then and now during nearly a century that has elapsed. It is legitimate to,
"construe the Code with reference to the modern needs, wherever this is permissible,",
unless there is anything in the Code or in any particular section to indicate the,
contrary.2.,
[s 1] Title and extent of operation of the Code.,
"This Act shall be called the Indian Penal Code, and shall 3.[extend to the whole of",
India 4.[except the State of Jammu and Kashmir].],
COMMENT—,
"Before 1860, the English criminal law, as modified by several Acts,5. was administered",
"in the Presidency towns of Bombay, Calcutta and Madras. But in the mofussil, the",
"Courts were principally guided by the Mohammedan criminal law, the glaring defects of",
"which were partly removed by Regulations of the local Governments. In 1827, the",
judicial system of Bombay was thoroughly revised and from that time the law which the,
criminal Courts administered was set forth in a Regulation6. defining offences and,
specifying punishments. But in the Bengal and Madras Presidencies the Mohammedan,
criminal law was in force till the Indian Penal Code came into operation.,
"[s 1.1] Trial of offences under IPC, 1860.—",
"All offences under IPC, 1860 shall be investigated, inquired into, tried and otherwise",
"dealt with according to the provisions of the Code of Criminal Procedure, 1973 (Cr PC,",
1973).7.,
[s 1.2] Overlapping Offences.—,
"Where there is some overlapping between offences contained in IPC, 1860 and other",
"enactments, the Supreme Court has held that it would not mean that the offender could",
"not be tried under IPC, 1860. The Court concerned can pronounce on such issues on",
the basis of evidence produced before it. There may be some overlapping of facts in,
"the cases under section 420 IPC, 1860 and section 138 of the Negotiable Instruments",
"Act, 1881 but ingredients of offences are entirely different. Thus, the subsequent case",
"is not barred.8. A ""terrorist act"" and an act of ""waging war against the Government of",
"India"" may have some overlapping features, but a terrorist act may not always be an act",
"of waging war against the Government of India, and vice versa. The provisions of",
"Chapter IV of the Unlawful Activities (Prevention) Act, 1967 and those of Chapter VI of",
"the IPC, 1860 including section 121, basically cover different areas.9. The mere fact",
"that the offence in question was covered by the Customs Act, 1962 did not mean that it",
"could not be tried under IPC, 1860 if it also falls under it.10.",
"1. MC Verghese v Ponnan, AIR 1970 SC 1876 [LNIND 1968 SC 339] : (1969) 1 SCC 37 [LNIND",
1968 SC 339] : 1970 Cr LJ 1651 .,
"2. Mobarik Ali v State of Bombay, AIR 1957 SC 857 [LNIND 1957 SC 81] : 1957 Cr LJ 1346 (SC).",
"3. The original words have successively been amended by Act 12 of 1891, section 2 and Sch I,",
"the A.O. 1937, the A.O. 1948 and the A.O. 1950 to read as above.",
"4. Subs. by Act 3 of 1951, section 3 and Sch, for ""except Part B States"" (w.e.f. 1-4-1951).",
"5. 9 Geo. IV, section 74; Acts VII and XIX of 1837; Act XXXI of 1838; Acts XXII and XXXI of 1839;",
"Acts VII and X of 1844; Act XVI of 1852. See Pramod Kumar, Perspectives of the New Bill on",
"Indian Penal Code and Reflections on the Joint Select Committee Report—Some Comments,",
(1980) 22 JILI 307.,
6. XIV of 1827.,
"7. Section 4(1) Code of Criminal Procedure, 1973. Also see commentary under section 3 of IPC",
infra.,
"8. Sangeetaben Mahendrabhai Patel v State of Gujarat, AIR 2012 SC 2844 [LNIND 2012 SC 1473]",
: (2012) 7 SCC 621 [LNIND 2012 SC 1473] .,
"9. Mohammed Ajmal Mohammad Amir Kasab v State of Maharashtra, (2012) 9 SCC 1 [LNIND",
2012 SC 1215] : AIR 2012 (SCW) 4942 : AIR 2012 SC 3565 [LNIND 2012 SC 1215] : 2012 Cr LJ,
4770 : JT 2012 (8) SC 4 [LNIND 2012 SC 1215] : 2012 (7) Scale 553 [relied on State (NCT of,
"Delhi) v Navjot Sandhu @ Afsan Guru, AIR 2005 SC 3820 [LNIND 2005 SC 580] : (2005) 11 SCC",
600 [LNIND 2005 SC 580] : (2005) 2 SCC (Cr) 1715],
"10. Natarajan v State, (2008) 8 SCC 413 [LNIND 2008 SC 1093] : (2008) 3 SCC (Cr) 507.",
THE INDIAN PENAL CODE,
CHAPTER I INTRODUCTION,
The Indian Penal Code was drafted by the First Indian Law Commission presided over,
by Lord Thomas Babington Macaulay. The draft underwent further revision at the hands,
"of well-known jurists, like Sir Barnes Peacock, and was completed in 1850. The Indian",
Penal Code was passed by the then Legislature on 6 October 1860 and was enacted as,
Act No. XLV of 1860.,
Preamble. WHEREAS it is expedient to provide a general,
Penal Code for India; It is enacted as follows:—,
"COMMENT.—The Indian Penal Code, 1860 (IPC, 1860) exhaustively codifies the law",
relating to offences with which it deals and the rules of the common law cannot be,
resorted to for inventing exemptions which are not expressly enacted.1. It is not,
"necessary and indeed not permissible to construe the IPC, 1860 at the present day in",
accordance with the notions of criminal jurisdiction prevailing at the time when the,
Code was enacted. The notions relating to this matter have very considerably changed,
between then and now during nearly a century that has elapsed. It is legitimate to,
"construe the Code with reference to the modern needs, wherever this is permissible,",
unless there is anything in the Code or in any particular section to indicate the,
contrary.2.,
[s 2] Punishment of offences committed within India.,
Every person 1 shall be liable to punishment under this Code and not otherwise for,
"every act or omission contrary to the provisions thereof, of which he shall be guilty",
within 11.[India] 12.[***]. 2,
COMMENT—,
This section deals with the intraterritorial operation of the Code. It makes the Code,
universal in its application to every person in any part of India for every act or omission,
contrary to the provisions of the Code.,
"Section 2 read with section 4 of the IPC, 1860 makes the provisions of the Code",
"applicable to the offences committed ""in any place without and beyond"" the territory of",
"India; (1) by a citizen of India or (2) on any ship or aircraft registered in India,",
"irrespective of its location, by any person not necessarily a citizen. Such a declaration",
"was made as long back as in 1898. By an amendment in 2009 to the said section, the",
"Code is extended to any person in any place ""without and beyond the territory of India"",",
committing an offence targeting a computer resource located in India.13.,
"1. 'Every person'.—Every person is made liable to punishment, without distinction of",
"nation, rank, caste or creed, provided the offence with which he is charged has been",
"committed in some part of India. A foreigner who enters the Indian territories and thus,",
accepts the protection of Indian laws virtually gives an assurance of his fidelity and,
obedience to them and submits himself to their operation. It is no defence on behalf of,
"a foreigner that he did not know he was doing wrong, the act not being an offence in",
his own country. A foreigner who commits an offence within India is guilty and can be,
punished as such without any limitation as to his corporal presence in India at the,
time.14. Indian Courts have jurisdiction against foreigners residing in foreign countries,
but their acts connected with transaction or part of transaction arising in India.15.,
[s 2.1] Corporate Criminal Liability,
A company is liable to be prosecuted and punished for criminal offences. Although,
"there are earlier authorities to the fact that the corporation cannot commit a crime, the",
generally accepted modern rule is that a corporation may be subject to indictment and,
other criminal process although the criminal act may be committed through its agent.,
The majority in the Constitution bench held that there is no immunity to the companies,
from prosecution merely because the prosecution is in respect of offences for which,
the punishment is mandatory imprisonment and fine.16. When imprisonment and fine is,
prescribed as punishment the Court can impose the punishment of fine which could be,
enforced against the company.17.,
"In CBI v Blue Sky Tie-up Pvt Ltd,18. the question again came up for consideration before",
the Supreme Court and it was held that since the majority of the Constitution Bench,
ruled in Standard Chartered Bank v Directorate of Enforcement [supra] that the company,
can be prosecuted even in a case where the Court can impose substantive sentence as,
"also fine, and in such case only fine can be imposed on the corporate body, the contrary",
view taken by the learned single Judge cannot be approved.,
[s 2.2] Vicarious Liability.—,
"Indian Penal Code, save and except some matters does not contemplate any vicarious",
liability on the part of a person. Commission of an offence by raising a legal fiction or,
by creating a vicarious liability in terms of the provisions of a statute must be expressly,
"stated. The Managing Director or the Directors of the Company, thus, cannot be said to",
have committed an offence only because they are holders of offices.19. Vicarious,
liability of the Managing Director and Director would arise provided any provision exists,
in that behalf in the statute. Statutes indisputably must contain provision fixing such,
"vicarious liabilities. Even for the said purpose, it is obligatory on the part of the",
complainant to make requisite allegations which would attract the provisions,
"constituting vicarious liability.20. The provisions of the Essential Commodities Act,",
"1955, Negotiable Instruments Act, 1881, Employees' Provident Fund (Miscellaneous",
"Provision) Act, 1952, etc., have created such vicarious liability. It is interesting to note",
that section 14A of the 1952 Act specifically creates an offence of criminal breach of,
trust in respect of the amount deducted from the employees by the company. In terms,
"of the explanations appended to section 405 of the IPC, 1860 a legal fiction has been",
created to the effect that the employer shall be deemed to have committed an offence,
of criminal breach of trust. Whereas a person in charge of the affairs of the company,
and in control thereof has been made vicariously liable for the offence committed by,
the company along with the company but even in a case falling under section 406 of,
"the IPC, 1860 vicarious liability has been held to be not extendable to the Directors or",
officers of the company.21.,
"There is no exception in favour of anyone in the Penal Code, but the following persons",
are exempted from the jurisdiction of criminal Courts of every country:—,
"(a) Foreign Sovereigns.—The real principle on which the exemption, of every sovereign",
"from the jurisdiction of every Court, has been deduced is that the exercise of such",
"jurisdiction would be incompatible with his regal dignity—that is to say, with his",
absolute independence of every superior authority.22.,
"(b) Diplomats.—United Nations Privileges and Immunities Act, 1947, and the Diplomatic",
"Relations (Vienna Convention) Act, 1972, gave certain diplomats, missions and their",
member's diplomatic immunity even from criminal jurisdiction. The Diplomatic,
Relations (Vienna Convention) Act had been enacted to give effect to the Vienna,
"Convention on Diplomatic Relations, 1961. The effect of section 2 of the Act is to give",
the force of law in India to certain provisions set out in the Schedule to the Act.,
A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving,
State. He shall also enjoy immunity from its civil and administrative jurisdiction except,
in the case of:,
(i) A real action relating to private immovable property situated in the territory of the,
"receiving State, unless he holds it on behalf of the sending State for the",
purposes of the mission;,
(ii) An action relating to succession in which the diplomatic agent is involved as,
"executor, administrator, heir or legatee as a private person and not on behalf of",
the sending State;,
(iii) An action relating to any professional or commercial activity exercised by the,
diplomatic agent in the receiving State outside his official functions.23. A,
diplomatic agent is not obliged to give evidence as a witness.24. Privileges and,
immunities are conferred on United Nations and its Representatives as well as,
on other international organisations and their representatives by the United,
"Nations (Privileges and Immunities) Act, 1947.25.",
(c) Alien enemies.—In respect of acts of war alien enemies cannot be tried by criminal,
"Courts. If an alien enemy commits a crime unconnected with war, e.g., theft, he would",
be triable by ordinary criminal Courts.,
(d) Foreign army.—When armies of one State are by consent on the soil of a foreign,
State they are exempted from the jurisdiction of the State on whose soil they are.,
(e) Warships.—Men-of-war of a State in foreign waters are exempt from the jurisdiction,
"of the State within whose territorial jurisdiction they are. The domestic Courts, in",
"accordance with principles of international law, will accord to the ship and its crew and",
"its contents certain immunities. The immunities can, in any case, be waived by the",
nation to which the public ship belongs.26.,
"(f) President and Governors.—Under Article 361 of the Indian Constitution, the",
President and Governors are exempt from the jurisdiction of Courts.,
2. 'Within India'.—If the offence is committed outside India it is not punishable under,
"the Penal Code, unless it has been made so by means of special provisions such as",
"sections 3, 4, 108A, etc., of the Code. Under section179 of the Cr PC, 1973 even the",
"place(s) wherein the consequence (of the criminal act) ""ensues"" would be relevant to",
"determine the Court of competent jurisdiction. Therefore, even the Courts within whose",
"local jurisdiction, the repercussion/effect of the criminal act occurs, would have",
jurisdiction in the matter. When the consequence of an act committed by a foreigner,
"outside India if ensued in India, he can be tried in India.27. Normally crime carries the",
person. The commission of a crime gives the Court of the place where it is committed,
jurisdiction over the person of the offender.28.,
[s 2.3] Territorial jurisdiction.—,
The territory of India is defined under Article 1 of the Constitution of India. Article 1 of,
the Constitution of India deals only with the geographical territory while Article 297,
deals with 'maritime territory'.,
Article 297(3) authorises the Parliament to specify from time to time the limits of,
"various maritime zones such as, territorial waters, continental shelf, etc. Clauses (1)",
"and (2) of the said Article make a declaration that all lands, minerals and other things",
"of value and all other resources shall vest in the Union of India.29. Section 18 of the IPC,",
1860 defines India as the territory of India excluding the state of Jammu and Kashmir.,
These territorial limits would include the territorial waters of India.30. Under the General,
"Clauses Act, 1897, India is defined to mean all territories for the time being comprised",
in the territory of India as defined in the Constitution of India. Under the provisions of,
"Article 297 of the Constitution of India, all lands, minerals and other things of value",
underlying the ocean within the territorial waters or the continental shelf or the,
exclusive economic zone of India vest in the Union. The Constitution of India does not,
"itself define the terms territorial waters, continental shelf, and exclusive economic",
zone. Clause (3) of Article 297 states that their limits shall be such as may be specified,
"by Parliament. In 1976, Parliament implemented the amendments to the Constitution",
"of India by passing the Maritime Zones Act, 1976.31. Insofar the Republic of India is",
"concerned, the limit of the territorial waters was initially understood to be three nautical",
miles. It had been extended subsequently; up to six nautical miles by a Presidential,
proclamation dated 22 March 1952 and to 12 nautical miles by another proclamation,
"dated 30 September 1967. By The Territorial Waters, Continental Shelf, Exclusive",
"Economic Zone and Other Maritime Zones Act, 80 of 1976, it was statutorily fixed at 12",
nautical miles. Section 3 of the Act stipulates that the sovereignty of India extends to,
"the territorial waters, the limit of which is 12 nautical miles. Section 5 of the Territorial",
"Waters Act, 1976 defines the contiguous zone of India as an area beyond and adjacent",
to territorial waters to a distance of 24 nautical miles from the nearest point of the,
baseline. Section 7 of the Act defines the Exclusive economic zone of India as an area,
beyond and adjacent to territorial waters up to a limit of 200 nautical miles.32.,
[s 2.4] Jurisdiction beyond Territorial Waters,
In the case of British India Steam Navigation Co Ltd v Shanmughavilas Cashew,
"Industries,33. the Supreme Court examined the effective operation of the statutes of a",
country in relation to foreigners and foreign ships.,
"In general, a statute extends territorially, unless the contrary is stated, throughout the",
"country and will extend to the territorial waters, and such places as intention to that effect is",
shown. A statute extends to all persons within the country if that intention is shown. The,
"Indian Parliament, therefore, has no authority to legislate for foreign vessels or foreigners in",
"them on the high seas. Thus a foreign ship on the high seas, or her foreign owners or their",
"agents in a foreign country, are not deprived of rights by our statutory enactment expressed",
in general terms unless it provides that a foreign ship entering an Indian port or territorial,
waters and thus coming within the territorial jurisdiction is to be covered. Without anything,
more Indian statutes are ineffective against foreign property and foreigners outside the,
jurisdiction.,
"It is this principle which is reflected in section 2(2) of the Merchant Shipping Act,",
1958.34.,
"Earlier in Aban Loyd Chiles Offshore Ltd v UOI,35. it was held that India has been given",
only certain limited sovereign rights and such limited sovereign rights conferred on,
India in respect of continental shelf and exclusive economic zone cannot be equated to,
extending the sovereignty of India over the continental shelf and exclusive economic,
zone as in the case of territorial waters.,
"1. MC Verghese v Ponnan, AIR 1970 SC 1876 [LNIND 1968 SC 339] : (1969) 1 SCC 37 [LNIND",
1968 SC 339] : 1970 Cr LJ 1651 .,
"2. Mobarik Ali v State of Bombay, AIR 1957 SC 857 [LNIND 1957 SC 81] : 1957 Cr LJ 1346 (SC).",
"11. The original words ""the said territories"" have successively been amended by the A.O. 1937,",
"the A.O. 1948, the A.O. 1950 and Act 3 of 1951, section 3 and Sch (w.e.f. 3-4-1951), to read as",
above.,
"12. The words and figures ""on or after the said first day of May, 1861"" rep. by Act 12 of 1891,",
section 2 and Sch I.,
"13. Republic of Italy through Ambassador v UOI, (2013) 4 SCC 721 : 2013 (1) Scale 462",
[LNINDORD 2013 SC 9114] .,
"14. Mobarik Ali v State of Bombay, AIR 1957 SC 857 [LNIND 1957 SC 81] : 1957 Cr LJ 1346 (SC).",
"See also State of Maharashtra v Mayer Hans George, 1965 (1) SCR 123 [LNIND 1964 SC 415] :",
AIR 1965 SC 722 [LNIND 1964 SC 208] : 1965 (1) Cr LJ 641 .,
"15. Lee Kun Hee v State of UP, (2012) 3 SCC 132 [LNIND 2012 SC 89] : AIR 2012 SC 1007",
[LNINDORD 2012 SC 443] : 2012 Cr LJ 1551 .,
"16. Standard Chartered Bank v Directorate of Enforcement, (2005) 4 SCC 530 [LNIND 2005 SC",
476] : AIR 2005 SC 2622 [LNIND 2005 SC 476] : 2005 SCC (Cr) 961; Asstt Commr v Velliappa,
"Textiles Ltd, 2003 (11) SCC 405 [LNIND 2003 SC 794] : 2004 SCC (Cr) 1214) Overruled.",
"17. Standard Chartered Bank v Directorate of Enforcement, AIR 2006 SC 1301 [LNIND 2006 SC",
145] : (2006) 4 SCC 278 [LNIND 2006 SC 145] : (2006) 2 SCC (Cr) 221. See also CBI v Blue Sky,
"Tie-up Pvt Ltd, (2011) 6 Scale 436 : AIR 2012 (SCW) 1098 : 2012 Cr LJ 1216 . Also see Aneeta",
"Hada v Godfather Travels & Tours, (2012) 5 SCC 66 : 2012 Cr LJ 2525 : AIR 2012 SC 2795 [LNIND",
2012 SC 260] .,
"18. CBI v Blue Sky Tie-up Pvt Ltd, (2011) 6 Scale 436 : AIR 2012 (SCW) 1098 : 2012 Cr LJ 1216 .",
"Also see Aneeta Hada v Godfather Travels & Tours, (2012) 5 SCC 66 : 2012 Cr LJ 2525 : AIR 2012",
SC 2795 [LNIND 2012 SC 260] in which it is held that directors cannot be prosecuted without the,
Company being arraigned as an accused–138 NI Act.,
"19. Keki Hormusji Gharda v Mehervan Rustom Irani, (2009) 6 SCC 475 [LNIND 2009 SC 1276] :",
2009 Cr LJ 3733 : AIR 2009 SC 2594 [LNIND 2009 SC 1276] .,
"20. Maksud Saiyed v State of Gujarat, (2008) 5 SCC 668 [LNIND 2007 SC 1090] : JT 2007 (11) SC",
276 [LNIND 2007 SC 1090] : (2008) 2 SCC (Cr) 692.,
"21. SK Alagh v State of UP, AIR 2008 SC 1731 [LNIND 2008 SC 368] : (2008) 5 SCC 662 [LNIND",
2008 SC 368] : 2008 Cr LJ 2256 : (2008) 2 SCC (Cr) 686.,
"22. Per Brett, LJ in The Parlement Belge, (1880) 5 PD 197 , 207.",
"23. Article 31 (1) of Diplomatic Relations (Vienna Convention) Act, 1972.",
"24. Article 31 (1) of Diplomatic Relations (Vienna Convention) Act, 1972.",
"25. United Nations (Privileges and Immunities) Act, Act No. XLV of 1947.",
"26. Chung Chi Cheung, (1939) AC 160 .",
"27. Lee Kun Hee v State of UP, (2012) 3 SCC 132 [LNIND 2012 SC 89] : AIR 2012 SC 1007",
"[LNINDORD 2012 SC 443] : 2012 Cr LJ 1551 ; Mobarik Ali v State of Bombay, AIR 1957 SC 857",
[LNIND 1957 SC 81] : 1957 Cr LJ 1346 (SC) : 1958 SCR 328 [LNIND 1957 SC 81] .,
"28. Kubic Dariusz v UOI, AIR 1990 SC 605 [LNIND 1990 SC 25] : (1990) 1 SCC 568 [LNIND 1990",
SC 25] : 1990 Cr LJ 796 .,
"29. Republic of Italy through Ambassador v UOI, (2013) 4 SCC 721 : 2013 (1) Scale 462",
[LNINDORD 2013 SC 9114] .,
"30. BK Wadeyar v Daulatram Rameshwarlal, AIR 1961 SC 311 [LNIND 1960 SC 493] : 1961 (1)",
SCR 924 [LNIND 1960 SC 493] .,
"31. Aban Loyd Chiles Offshore Ltd v UOI, JT 2008 (5) SC 256 [LNIND 2008 SC 897] : 2008 (6)",
Scale 128 [LNIND 2008 SC 897] : (2008) 11 SCC 439 [LNIND 2008 SC 897] .,
"32. UOI Republic of Italy through Ambassador v UOI, (2013) 4 SCC 721 : 2013 (1) Scale 462",
[LNINDORD 2013 SC 9114] .,
"33. British India Steam Navigation Co Ltd v Shanmughavilas Cashew Industries, 1990 (3) SCC",
481 [LNIND 1990 SC 150] : JT 1990 (1) SC 528 [LNIND 1990 SC 150] : 1990 (1) SCR 884 .,
"34. World Tanker Carrier Corp v SNP Shipping Services Pvt Ltd, AIR 1998 SC 2330 [LNIND 1998",
SC 461] : 1998 (5) SCC 310 [LNIND 1998 SC 461] .,
"35. Aban Loyd Chiles Offshore Ltd v UOI, (2008) 11 SCC 439 [LNIND 2008 SC 897] : JT 2008 (5)",
SC 256 [LNIND 2008 SC 897] : 2008 (6) Scale 128 [LNIND 2008 SC 897] .,
THE INDIAN PENAL CODE,
CHAPTER I INTRODUCTION,
The Indian Penal Code was drafted by the First Indian Law Commission presided over,
by Lord Thomas Babington Macaulay. The draft underwent further revision at the hands,
"of well-known jurists, like Sir Barnes Peacock, and was completed in 1850. The Indian",
Penal Code was passed by the then Legislature on 6 October 1860 and was enacted as,
Act No. XLV of 1860.,
Preamble. WHEREAS it is expedient to provide a general,
Penal Code for India; It is enacted as follows:—,
"COMMENT.—The Indian Penal Code, 1860 (IPC, 1860) exhaustively codifies the law",
relating to offences with which it deals and the rules of the common law cannot be,
resorted to for inventing exemptions which are not expressly enacted.1. It is not,
"necessary and indeed not permissible to construe the IPC, 1860 at the present day in",
accordance with the notions of criminal jurisdiction prevailing at the time when the,
Code was enacted. The notions relating to this matter have very considerably changed,
between then and now during nearly a century that has elapsed. It is legitimate to,
"construe the Code with reference to the modern needs, wherever this is permissible,",
unless there is anything in the Code or in any particular section to indicate the,
contrary.2.,
"[s 3] Punishment of offences committed beyond, but which by law may be tried",
within India.,
"Any person liable, by any 36.[Indian law], to be tried for an offence committed beyond",
37.[India] shall be dealt with according to the provisions of this Code for any act,
committed beyond India in the same manner as if such act had been committed,
within 38.[India].,
COMMENT—,
This section and section 4 relate to the extraterritorial operation of the Code. The,
words of this section postulate the existence of a law that an act constituting an,
"offence in India shall also be an offence when committed outside India. Thus, taking",
"part in a marriage which is prohibited by the Child Marriage Restraint Act, 1929 by a",
citizen of India beyond India is not an offence which can be punished in India.39. This,
section only applies to the case of a person who at the time of committing the offence,
"charged was amenable to an Indian Court.40. Thus, an Indian citizen who committed an",
offence outside India which was not an offence according to the laws of that country,
would still be liable to be tried in India if it was an offence under the Indian law.41. An,
Indian citizen was murdered by another Indian citizen in a foreign country and the,
police refused to register an FIR on the ground that the offence was committed outside,
India. The Court held that the refusal was illegal and directed the police to register the,
crime and proceed with investigation in accordance with the law. The Court observed,
"that section 3 of the IPC, 1860 helps the authorities in India to proceed by treating the",
offence as one committed within India. No doubt it is by a fiction that such an,
assumption is made. But such an assumption was necessary for practical purposes.42.,
In a series of cases43. it was also held that an offence committed outside India by a,
citizen of India can be investigated by the local police even without prior sanction of,
"the Central Government. Where both husband and wife are Indians residing at USA, a",
complaint against the husband alleging cruelty is maintainable.44.,
"The operation of the section is restricted to the cases specified in the Extradition Act,",
"1962 and the Cr PC, 1973, sections 188 and 189.",
"1. MC Verghese v Ponnan, AIR 1970 SC 1876 [LNIND 1968 SC 339] : (1969) 1 SCC 37 [LNIND",
1968 SC 339] : 1970 Cr LJ 1651 .,
"2. Mobarik Ali v State of Bombay, AIR 1957 SC 857 [LNIND 1957 SC 81] : 1957 Cr LJ 1346 (SC).",
"36. Subs. by the A.O. 1937 for ""law passed by the Governor General of India in Council"".",
"37. The original words ""the limits of the said territories"" have successively been amended by",
"the A.O. 1937, the A.O. 1948, the A.O. 1950 and Act 3 of 1951, section 3 and Sch (w.e.f. 3 April",
"1951), to read as above.",
"38. The original words ""the said territories"" have successively been amended by the A.O. 1937,",
"the A.O. 1948, the A.O. 1950 and Act 3 of 1951, section 3 and Sch, (w.e.f. 3-4-951) to read as",
above.,
"39. Sheikh Haidar v Syed Issa, (1939) Ngp 241.",
"40. Pirtai, (1873) 10 BHC (Cr C) 356.",
"41. Pheroze v State of Maharashtra, 1964 (2) Cr LJ 533 (Bom).",
"42. Remia v Sub-Inspector of Police, Tanur, 1993 Cr LJ 1098 (Ker). The court referred to State of",
"WB v Jugal Kishore, AIR 1969 SC 1171 [LNIND 1969 SC 8] : 1969 Cr LJ 1559 .",
"43. Souda Beevi v Sub Inspector of Police, 2012 Cr LJ 58 (NOC) : 2011 (4) Ker LT 52 ;",
"Muhammad Rafi v State of Kerala, 2010 Cr LJ 592 : 2009 (1) Ker LT 943 ; Vijaya Saradhi Vajja v",
"Devi Sriroopa Madapati, 2007 Cr LJ 636 (AP); Samarudeen v Asst. Director of Enforcement, (1999",
"(2) Ker LT 794 [FB]); S Clara v State of TN, 2008 Cr LJ 2477 (Mad).",
"44. Harihar Narasimha Iyer v State of TN, 2013 Cr LJ 378 ; Rajesh Gupta v State of AP, 2011 Cr LJ",
3506 : 2011 (3) Crimes 236 .,
THE INDIAN PENAL CODE,
CHAPTER I INTRODUCTION,
The Indian Penal Code was drafted by the First Indian Law Commission presided over,
by Lord Thomas Babington Macaulay. The draft underwent further revision at the hands,
"of well-known jurists, like Sir Barnes Peacock, and was completed in 1850. The Indian",
Penal Code was passed by the then Legislature on 6 October 1860 and was enacted as,
Act No. XLV of 1860.,
Preamble. WHEREAS it is expedient to provide a general,
Penal Code for India; It is enacted as follows:—,
"COMMENT.—The Indian Penal Code, 1860 (IPC, 1860) exhaustively codifies the law",
relating to offences with which it deals and the rules of the common law cannot be,
resorted to for inventing exemptions which are not expressly enacted.1. It is not,
"necessary and indeed not permissible to construe the IPC, 1860 at the present day in",
accordance with the notions of criminal jurisdiction prevailing at the time when the,
Code was enacted. The notions relating to this matter have very considerably changed,
between then and now during nearly a century that has elapsed. It is legitimate to,
"construe the Code with reference to the modern needs, wherever this is permissible,",
unless there is anything in the Code or in any particular section to indicate the,
contrary.2.,
45.[s 4] Extension of Code to extraterritorial offences.,
The provisions of this Code apply also to any offence committed by—,
46.[(1) any citizen of India in any place without and beyond India;,
(2) any person on any ship or aircraft registered in India wherever it may be;],
47.[(3) any person in any place without and beyond India committing offence,
targeting a computer resource located in India.],
48.[Explanation.—In this section—,
"(a) the word ""offence"" includes every act committed outside India which,",
"if committed in India, would be punishable under this Code;",
"(b) the expression ""computer resource"" shall have the meaning assigned",
to it in clause ( k ) of sub-section (1) of section 2 of the Information,
"Technology Act, 2000 (21 of 2000).]",
49.[ILLUSTRATION],
"50.[***] A, 51.[who is a 52.[citizen of India]], commits a murder in Uganda. He",
can be tried and convicted of murder in any place in 53.[India] in which he,
may be found.,
54.[***],
COMMENT—,
This section shows the extent to which the Code applies to offences committed,
outside India. The Code applies to any offence committed by—,
"(1) any citizen of India in any place, wherever he may be;",
(2) any person on any ship or aircraft registered in India wherever it may be; and,
"(3) any person, whether or not a citizen of India, who commits any offence, from",
"anywhere in the world, targeting a computer resource located in India.",
"Hence, except for the case of an offence committed against a computer resource",
"located in India, to extend the scope of operation of IPC, 1860 against persons, either",
the offender must be a citizen of India or he must have committed the offence on any,
ship or aircraft registered in India.,
[s 4.1] Crimes committed outside India.—,
Where an offence is committed beyond the limits of India but the offender is found,
"within its limits, then",
(I) he may be given up for trial in the country where the offence was committed,
(extradition) or,
(II) he may be tried in India (extraterritorial jurisdiction).,
"Where an offence was committed by an Indian citizen outside India, it was held that the",
"offence was punishable under the IPC, 1860. An investigation of such an offence would",
"not require sanction of the Central Government under the proviso to section 188, Cr PC,",
"1973. But an enquiry as contemplated by section 202, Cr PC, 1973 could only be with",
the sanction of the Central Government.55.,
(I) Extradition.—Extradition is the surrender by one State to another of a person desired,
to be dealt with for crimes of which he has been accused or convicted and which are,
justiciable in the Courts of the other State. Surrender of a person within the State to,
another State—whether a citizen or an alien—is a political act done in pursuance of a,
treaty or an arrangement ad hoc.56. Though extradition is granted in implementation of,
"the international commitment of the State, the procedure to be followed by the Courts",
"in deciding, whether extradition should be granted and on what terms, is determined by",
the municipal law of the land. Extradition is founded on the broad principle that it is in,
the interest of civilised communities that criminals should not go unpunished and on,
"that account, it is recognised as a part of the comity of nations that one State should",
ordinarily afford to another State assistance towards bringing offenders to justice.57.,
"The procedure for securing the extradition from India is laid down in the Extradition Act,",
1962.,
(II) Extraterritorial jurisdiction.—Indian Courts are empowered to try offences,
"committed out of India on (A) land, (B) high seas or (C) aircraft.",
"(A) Land.—By virtue of sections 3 and 4 of the Penal Code, and section 188 of the Cr",
"PC, 1973 local Courts can take cognizance of offences committed beyond the",
territories of India. Where the Court is dealing with an act committed outside India by a,
citizen of India which would be an offence punishable under the Penal Code if it had,
"been committed in India, section 4 constitutes the act an offence and it can be dealt",
"with under section 188 of the Cr PC, 1973.58. If, however, at the time of commission of",
"the offence the accused person is not a citizen of India, the provisions of section 4 of",
"the Penal Code and section 188 of the Cr PC, 1973 have no application.59.",
"Section 188 of the Cr PC, 1973, provides that when an offence is committed outside",
India—,
"(a) by a citizen of India, whether on high seas or elsewhere; or",
"(b) by any person not being such citizen on any ship or aircraft registered in India,",
he may be dealt with in respect of such offence as if it had been committed at,
any place within India at which he may be found.,
"The word 'found' in section 188, Cr PC, 1973 means not where a person is discovered",
but where he is actually present.60. A man brought to a place against his will can be,
said to be found there.61. When a man is in the country and is charged before a,
"Magistrate with an offence under the Penal Code, it will not avail him to say that he was",
brought there illegally from a foreign country. The Bombay High Court has laid down,
"this principle, following English precedents, in Savarkar's case.62. The accused Savarkar",
had escaped at Mareseilles from the custody of police officers charged with the duty of,
"bringing him from London to Bombay, but was re-arrested there and brought to Bombay",
and committed for trial by the Special Magistrate at Nasik. The High Court held that the,
"trial and committal were valid.63. The provisions of the IPC, 1860 have been extended",
to offences committed by any citizen of India in any place within and beyond India by,
"virtue of section 4 thereof. Accordingly, offences committed in Botswana by an Indian",
"citizen would also be amenable to the provisions of the IPC, 1860 subject to the",
"limitation imposed under the proviso to section 188 Cr PC, 1973.64. Section 4 gives",
extraterritorial jurisdiction but as the Explanation says the acts committed must,
amount to an offence under the Penal Code.65.,
[s 4.2] Acts done within Indian as well as foreign territory.—,
A person who is a citizen of India is liable to be tried by the Courts of this country for,
"acts done by him, partly within and partly without the Indian territories, provided the",
acts amount together to an offence under the Code.66.,
(B) Admiralty jurisdiction.—The jurisdiction to try offences committed on the high seas,
is known as the admiralty jurisdiction. It is founded on the principle that a ship on the,
high seas is a floating island belonging to the nation whose flag she is flying.,
Admiralty jurisdiction extends over—,
(1) Offences committed on Indian ships on the high seas.,
(2) Offences committed on foreign ships in Indian territorial waters.,
(3) Piracy.,
Power to enforce claims against foreign ships is an essential attribute of admiralty,
jurisdiction and it is assumed over such ships while they are within the jurisdiction of,
the High Court by arresting and detaining them. Admiralty jurisdiction of the High,
"Courts in India has been historically traced to the Charters of 1774 and 1728, as",
"subsequently expanded and clarified by the Letters Patent of 1823, 1862 and 1865 read",
"with the Admiralty Court Act, 1861, the Colonial Courts of Admiralty Act, 1890, and the",
"Colonial Court of Admiralty (India) Act, 1891 and preserved by section 106 of the",
"Government of India Act, 1915, section 223 of the Government of India Act, 1935 and",
Article 225 of the Constitution of India. The pre-Constitution enactments have,
continued to remain in force in India as existing laws.67.,
The High Court as a Court of Admiralty is treated as a separate entity exercising a,
distinct and specific or prescribed or limited jurisdiction. This reasoning is based on the,
"assumption that the continuance in force of the Colonial Courts of Admiralty Act, 1890",
as an existing law carves out a distinct jurisdiction of the High Court limited in ambit,
"and efficacy to what has been granted by the Admiralty Court Act 1861, and that",
jurisdiction has remained stultified ever since. This restrictive construction is not,
"warranted by the provisions of the Constitution. Accordingly, a foreign ship falls within",
"the jurisdiction of the High Court where the vessel happens to be at the relevant time,",
"i.e., at the time when the jurisdiction of the High Court is invoked, or, where the cause of",
action wholly or in part arises. The Merchant Shipping Act empowers the concerned,
High Court to arrest a ship in respect of a substantive right. This jurisdiction can be,
"assumed by the concerned High Court, whether or not the defendant resides or carries",
"on business, or the cause of action arose wholly or in part, within the local limits of its",
jurisdiction. Once a foreign ship is arrested within the local limits of the jurisdiction of,
"the High Court, and the owner of the ship has entered appearance and furnished",
"security to the satisfaction of the High Court for the release of the ship, the",
proceedings continue as a personal action. The conclusion is that all the High Courts in,
India have inherent admiralty jurisdiction and can invoke the same for the enforcement,
of a maritime claim.68.,
Even while exercising extraordinary powers available under the Constitution the,
"jurisdiction of the High Court is primarily circumscribed by its territorial limits, viz., the",
jurisdiction has to be in context of the territorial jurisdiction available to the High Court.,
"If the overall scheme of IPC, 1860 (section 4), Cr PC, 1973 (section 188), The Merchant",
"Shipping Act, 1958 (section 437) and the Territorial Waters Act, 1976 (section 13) are",
taken into consideration read with sections 2(2) and 3(15) of the Merchant Shipping,
"Act, it is apparent that for a Court, including High Court, to be vested with jurisdiction,",
an offender or offending vessel have to be found within local territorial limits of such,
Court.69.,
[s 4.3] Piracy,
Piracy consists of any of the following acts:,
"(a) any illegal acts of violence or detention, or any act of depredation, committed for",
"private ends by the crew or the passengers of a private ship or a private aircraft,",
and directed:,
"(i) on the high seas, against another ship or aircraft, or against persons or",
property on board such ship or aircraft;,
"(ii) against a ship, aircraft, persons or property in a place outside the",
jurisdiction of any State;,
(b) any act of voluntary participation in the operation of a ship or of an aircraft with,
knowledge of facts making it a pirate ship or aircraft;,
(c) any act of inciting or of intentionally facilitating an act described in,
subparagraph (a) or (b).70.,
The Convention on the Law of Sea known as United National Convention on the Law of,
"Sea, 1982 (UNCLOS) sets out the legal framework applicable to combating piracy and",
"armed robbery at sea, as well as other ocean activities. UNCLOS, 1982 is a",
comprehensive code on the international law of sea. It codifies and consolidates the,
"traditional law within a single, unificatory legal framework. It has changed the legal",
concept of continental shelf and also introduced a new maritime zone known as,
exclusive economic zone. Exclusive economic zone is a new concept having several,
"new features.71. The UNCLOS signed by India in 1982 and ratified on 29 June 1995,",
encapsulates the law of the sea and is supplemented by several subsequent,
resolutions adopted by the Security Council of the United Nations.,
"Before UNCLOS came into existence, the law relating to the seas which was in",
"operation in India, was the Territorial Waters, Continental Shelf, Exclusive Economic",
"Zone and Other Maritime Zones Act, 1976, which spelt out the jurisdiction of the",
"Central Government over the Territorial Waters, the Contiguous Zones and the",
Exclusive Economic Zone. The provisions of the UNCLOS are in harmony with and not,
"in conflict with the provisions of the Maritime Zones Act, 1976, in this regard. Article 33",
of the Convention recognises and describes the Contiguous Zone of a nation to extend,
to 24 nautical miles from the baseline from which the breadth of the territorial sea is,
"measured. Similarly, Articles 56 and 57 describe the rights, jurisdiction and duties of",
the coastal State in the Exclusive Economic Zone and the breadth thereof extending to,
20 nautical miles from the baseline from which the breadth of the territorial sea is,
measured. This provision is also in consonance with the provisions of the 1976 Act.,
"The area of difference between the provisions of the Maritime Zones Act, 1976, and the",
Convention occurs in Article 97 of the Convention which relates to the penal,
jurisdiction in matters of collision or any other incident of navigation.72.,
[s 4.4] Jurisdiction of Indian High Courts.—,
In view of the declaration of law made by the Supreme Court in M V Elisabeth v Harwan,
"Investment and Trading,73. the High Courts in India have inherent admiralty jurisdiction.",
The offences which come within the admiralty jurisdiction are now defined by the,
"Merchant Shipping Act, 1958.",
(C) Aircraft.—The provisions of the Code are made applicable to any offence,
"committed by any person on any aircraft registered in India, wherever it may be.",
[s 4.5] Liability of foreigners in India for offences committed outside its limits.,
—,
The acts of a foreigner committed by him in territory beyond the limits of India do not,
"constitute an offence against the Penal Code, and, consequently, a foreigner cannot be",
held criminally responsible under that Code by the tribunals of India for acts committed,
"by him beyond its territorial limits. Thus, when it is sought to punish a person, who is",
"not an Indian subject, as an offender in respect of a certain act, the question is not",
"'where was the act committed,' but 'was that person at the time, when the act was",
"done, within the territory of India'. For, if he was not, the act is not an offence, the doer",
"of it is not liable to be punished as an offender, and he is, therefore, not subject to the",
jurisdiction of criminal Courts.74. But if a foreigner in a foreign territory initiates an,
"offence which is completed within Indian territory, he is, if found within Indian territory,",
liable to be tried by the Indian Court within whose jurisdiction the offence was,
completed.75.,
[s 4.6] Section 4 IPC and section 188 of Cr PC.—,
"Section 188 Cr PC, 1973 and section 4 of the IPC, 1860 spell out that if the person",
"committing the offence at that point of time is a citizen of India, then, even if the",
"offence is committed beyond the contours of India, he will be subject to the jurisdiction",
of the Courts in India. The rule enunciated under the two sections rests on the principle,
that qua citizens the jurisdiction of Courts is not lost by reason of the venue of the,
"offence. However, section 188 of the Code places an interdiction in the enquiry or trial",
over offences committed outside India by a citizen of India insisting for sanction from,
the Central Government to do so.76.,
"1. MC Verghese v Ponnan, AIR 1970 SC 1876 [LNIND 1968 SC 339] : (1969) 1 SCC 37 [LNIND",
1968 SC 339] : 1970 Cr LJ 1651 .,
"2. Mobarik Ali v State of Bombay, AIR 1957 SC 857 [LNIND 1957 SC 81] : 1957 Cr LJ 1346 (SC).",
"45. Subs. by Act 4 of 1898, section 2, for section 4.",
"46. Subs. by the A.O. 1950, for clauses (1) to (4).",
"47. Ins. by the Information Technology (Amendment) Act, 2008 (10 of 2009), section 51(a)(i)",
(w.e.f. 27-10- 2009).,
"48. Subs. by the Information Technology (Amendment) Act, 2008 (10 of 2009), section 51(a)(ii),",
"for Explanation (w.e.f. 27-10-2009). Explanation, before substitution, stood as under:",
"""Explanation.—In this section the word ""offence"" includes every act committed outside India",
"which, if committed in India, would be punishable under this Code.""",
"49. Subs. by Act 36 of 1957, section 3 and Sch II, for ""Illustrations"" (w.e.f. 17-9-1957).",
"50. The brackets and letter ""(a)"" omitted by Act 36 of 1957, section 3 and Sch II (w.e.f. 17-9-",
1957).,
"51. Subs. by the A.O. 1948, for ""a coolie, who is a Native Indian subject"".",
"52. Subs. by the A.O. 1950, for ""a British subject of Indian domicile"".",
"53. The words ""British India"" have been successively amended by the A.O. 1948, the A.O. 1950",
"and Act 3 of 1951, section 3 and Sch (w.e.f. 1-4-1951), to read as above.",
"54. Illustrations (b), (c) and (d) omitted by the A.O. 1950.",
"55. Muhammad Rafi v State of Kerala, 2010 Cr LJ 592 Ker DB.",
"56. State of WB v Jugal Kishore More, (1969) 3 SCR 320 [LNIND 1969 SC 8] : 1969 Cr LJ 1559 :",
AIR 1969 SC 1171 [LNIND 1969 SC 8] .,
"57. Abu Salem Abdul Qayoom Ansari v State of Maharashtra, JT 2010 (10) SC 202 [LNIND 2010",
SC 858] : 2010 (9) Scale 460 : (2011) 3 SCC (Cr) 125 : (2011) 11 SCC 214 [LNIND 2010 SC 858] .,
"58. Ajay Aggarwal v UOI, 1993 (3) SCC 609 [LNIND 1993 SC 431] : AIR 1993 SC 1637 [LNIND",
1993 SC 431] : 1993 Cr LJ 2516 .,
"59. Central Bank of India Ltd v Ram Narain, (1955) 1 SCR 697 [LNIND 1954 SC 126] : 1955 Cr LJ",
152 : AIR 1955 SC 36 [LNIND 1954 SC 126] .,
"60. Maganlal v State, (1882) 6 Bom 622.",
"61. Lopez and Sattler, (1858) 27 LJ (MC) 48.",
"62. Vinayak D Savarkar, (1910) 13 Bom LR 296 , 35 Bom 225.",
"63. Supra. Also see Om Hemrajani v State of UP, (2005) 1 SCC 617 [LNIND 2004 SC 1181] : AIR",
2005 SC 392 [LNIND 2004 SC 1181] .,
"64. Thota Venkateswarlu v State of AP, AIR 2011 SC 2900 [LNIND 2011 SC 850] : (2011) 9 SCC",
527 [LNIND 2011 SC 850] : 2011 Cr LJ 4925 : (2011) 3 SCC (Cr) 772.,
"65. Rambharthi, (1923) 25 Bom LR 772 [LNIND 1923 BOM 115] : 47 Bom 907; Sheikh Haidar v",
"Syed Issa, (1939) Nag 241.",
"66. Moulivie Ahmudoollah, (1865) 2 WR (Cr) 60.",
"67. See Kamalakar Mahadev Bhagat v Scindia Steam Navigation Co Ltd, AIR 1961 Bom 186",
"[LNIND 1960 BOM 71] : (1960) 62 Bom LR 995 ; Sahida Ismail v Petko R Salvejkov, AIR 1973 Bom",
"18 [LNIND 1971 BOM 74] : (1972) 74 Bom LR 514 ; Jayaswal Shipping Co v SS Leelavati, AIR",
"1954 Cal 415 [LNIND 1953 CAL 202] ; Reena Padhi v 'Jagdhir', AIR 1982 Ori 57 [LNIND 1981 ORI",
93] .,
"68. M V Elisabeth v Harwan Investment and Trading, 1993 Supp (2) SCC 433 : AIR 1993 SC 1014",
"[LNIND 1992 SC 194] ; MV Al Quamar v Tsavliris Salvage (International) Ltd, AIR 2000 SC 2826",
[LNIND 2000 SC 1119] : (2000) 8 SCC 278 [LNIND 2000 SC 1119] : 2000 (5) Scale 618 [LNIND,
"2000 SC 1119] ; MV Free Neptune v DLF Southern Towns Private, 2011 (1) Ker LT 904 : 2011 (1)",
KHC 628 .,
"69. MG Forests Pte Ltd v ""MV Project Workship"", Gujarat High Court Judgement dated 24",
February 2004.,
"70. Article 100. United Nations Convention on the Law of the Sea (UNCLOS), 1982.",
"71. Aban Loyd Chiles Offshore Ltd v UOI, JT 2008 (5) SC 256 [LNIND 2008 SC 897] : 2008 (6)",
Scale 128 [LNIND 2008 SC 897] : (2008) 11 SCC 439 [LNIND 2008 SC 897] .,
"72. Republic of Italy through Ambassador v UOI, (2013) 4 SCC 721 : 2013 (1) Scale 462",
[LNINDORD 2013 SC 9114] .,
"73. M V Elisabeth v Harwan Investment and Trading, 1993 Supp (2) SCC 433 : AIR 1993 SC 1014",
[LNIND 1992 SC 194] .,
"74. Musst. Kishen Kour, (1878) PR No. 20 of 1878; Jameson, (1896) 2 QB 425 .",
"75. Chhotalal, (1912) 14 Bom LR 147 [LNIND 1912 BOM 26] .",
"76. P T Abdul Rahiman v State of Kerala, 2013 Cr LJ 893 (Ker).",
THE INDIAN PENAL CODE,
CHAPTER I INTRODUCTION,
The Indian Penal Code was drafted by the First Indian Law Commission presided over,
by Lord Thomas Babington Macaulay. The draft underwent further revision at the hands,
"of well-known jurists, like Sir Barnes Peacock, and was completed in 1850. The Indian",
Penal Code was passed by the then Legislature on 6 October 1860 and was enacted as,
Act No. XLV of 1860.,
Preamble. WHEREAS it is expedient to provide a general,
Penal Code for India; It is enacted as follows:—,
"COMMENT.—The Indian Penal Code, 1860 (IPC, 1860) exhaustively codifies the law",
relating to offences with which it deals and the rules of the common law cannot be,
resorted to for inventing exemptions which are not expressly enacted.1. It is not,
"necessary and indeed not permissible to construe the IPC, 1860 at the present day in",
accordance with the notions of criminal jurisdiction prevailing at the time when the,
Code was enacted. The notions relating to this matter have very considerably changed,
between then and now during nearly a century that has elapsed. It is legitimate to,
"construe the Code with reference to the modern needs, wherever this is permissible,",
unless there is anything in the Code or in any particular section to indicate the,
contrary.2.,
77.[[s 5] Certain laws not to be affected by this Act.,
Nothing in this Act shall affect the provisions of any Act for punishing mutiny and,
"desertion of officers, soldiers, sailors or airmen in the service of the Government of",
India or the provisions of any special or local law 1 .],
COMMENT—,
This section is a saving clause to section 2. Though the Code was intended to be a,
"general one, it was not thought desirable to make it exhaustive, and hence, offences",
"defined by local and special laws were left out of the Code, and merely declared to be",
"punishable as theretofore.78. Thus, the personnel of the Army, Navy and Airforce are",
"governed by the provisions of the Army Act, 1950, The Navy Act, 1957, and The Indian",
"Air Force Act, 1950 in regard to offences of mutiny and desertion committed by",
them.79.,
1. 'Special or local law'.—A special law is a law relating to a particular subject;80.,
whereas a local law is a law which applies only to a particular part of the country.81.,
The distinction between a statute creating a new offence with a particular penalty and,
a statute enlarging the ambit of an existing offence by including new acts within it with,
a particular penalty is well settled. In the former case the new offence is punishable by,
the new penalty only; in the latter it is punishable also by all such penalties as were,
applicable before the Act to the offence in which it is included. The Principle is that,
where a new offence is created and the particular manner in which proceedings should,
"be taken is laid down, then proceedings cannot be taken in any other way.82. However,",
a person cannot be punished under both the Penal Code and a special law for the same,
"offence,83. and ordinarily the sentence should be under the special Act.84. This is,",
"however, confined to cases where the offences are coincident or practically so.85.",
The Supreme Court issued specific guidelines regarding the interpretation of general law,
and special law. See the Box below for these Guidelines.,
Supreme Court Guidelines on Interpretation of General law and Special law,
(i) When a provision of law regulates a particular subject and a subsequent law,
"contains a provision regulating the same subject, there is no presumption that",
the later law repeals the earlier law. The rule-making authority while making the,
later rule is deemed to know the existing law on the subject. If the subsequent,
"law does not repeal the earlier rule, there can be no presumption of an intention",
to repeal the earlier rule;,
(ii) When two provisions of law — one being a general law and the other being,
"special law govern a matter, the court should endeavour to apply a harmonious",
construction to the said provisions. But where the intention of the rule-making,
"authority is made clear either expressly or impliedly, as to which law should",
"prevail, the same shall be given effect.",
(iii) If the repugnancy or inconsistency subsists in spite of an effort to read them,
"harmoniously, the prior special law is not presumed to be repealed by the later",
general law. The prior special law will continue to apply and prevail in spite of,
the subsequent general law. But where a clear intention to make a rule of,
universal application by superseding the earlier special law is evident from the,
"later general law, then the later general law, will prevail over the prior special law.",
(iv) Where a later special law is repugnant to or inconsistent with an earlier general,
"law, the later special law will prevail over the earlier general law.",
[Maya Mathew v State of Kerala86. and P Raghava Kurup v V Ananthakumari87..],
[s 5.1] Contempt of Court,
"Contempt of Courts Act, 1971 (Act 70 of 1971) makes it clear that, Contempt of Court",
means 'Civil contempt' or 'Criminal contempt'.88. 'Civil contempt' means wilful,
"disobedience to any judgment, decree, direction, order, writ or other process of a Court",
"or wilful breach of an Undertaking given to a Court.89. ""Criminal contempt"" means the",
"publication (whether by words, spoken or written, or by signs, or by visible",
"representations, or otherwise) of any matter or the doing of any other act whatsoever",
which – (i) scandalises or tends to scandalise or lowers or tends to lower the authority,
"of any Court; or (ii) prejudices, or interferes or tends to interfere with, the due course of",
"any judicial proceeding; or (iii) interferes or tends to interfere with, or obstructs or tends",
"to obstruct, the administration of justice in any other manner.90. The provisions of this",
"Act shall be in addition to and not in derogation of, the provisions of any other law",
relating to contempt of Courts.91. Contempt proceeding is sui generis (of its own kind,
or class or unique). It has peculiar features which are not found in criminal,
proceedings. The respondent does not stand in the position of a person accused of an,
offence. Initiation of contempt proceedings against the respondent who is already,
"accused in a criminal proceedings, does not amount to double jeopardy.92. Mens rea is",
not necessary for committing contempt of Court. The main ingredient of the offence of,
contempt of Court is the result of one's contumacious act of offending the prestige and,
dignity of the judiciary so as to lower it in the estimation of the general public. Whether,
the contemnor intended it or not is of no consequence.93.,
[s 5.2] Contempt of Supreme Court and High Courts,
"Articles 129 and 215 preserve all the powers of the Supreme Court and the High Court,",
"respectively, as a Court of Record which includes the power to punish the contempt of",
itself. There are no curbs on the power of the High Court to punish for contempt of,
"itself except those contained in the Contempt of Courts Act, 1971.94. For the judiciary",
to carry out its obligations effectively and true to the spirit with which it is sacredly,
"entrusted the task, constitutional Courts have been given the power to punish for",
"contempt, but greater the power; higher the responsibility.95.",
[s 5.3] Contempt of Subordinate Courts,
"Every High Court shall have and exercise the same jurisdiction, powers and authority, in",
"accordance with the same procedure and practice, in respect of contempt of Courts",
subordinate to it as it has and exercises in respect of contempt of itself provided that,
no High Court shall take cognizance of a contempt alleged to have been committed in,
respect of a Court subordinate to it where such contempt is an offence punishable,
"under the IPC, 1860 [section 10 Contempt of Courts Act, 1971]. The procedure",
"prescribed either under the Cr PC, 1973 or under the Indian Evidence Act, 1872 is not",
attracted to the proceedings initiated under section 15 of the Contempt of Courts Act.,
The High Court can deal with such matters summarily and adopt its own procedure.,
The only caution that has to be observed by the Court in exercising this inherent power,
of summary procedure is that the procedure followed must be fair and the contemnors,
are made aware of the charges levelled against them and given a fair and reasonable,
opportunity.96.,
[s 5.4] Section 228 IPC vis-a-vis Contempt of Courts Act,
"What is made publishable under section 228 IPC, 186097. is the offence of intentional",
insult to a Judge or interruption of Court proceedings but not as a contempt of Court.,
The definition of criminal contempt is wide enough to include any act by a person,
which would either scandalise the Court or tend to interfere with the administration of,
justice. It would also include any act which lowers the authority of the Court or,
prejudices or interferes with the due course of any judicial proceedings. It is not limited,
to the offering of intentional insult to the Judge or interruption of the judicial,
proceedings.98.,
"1. MC Verghese v Ponnan, AIR 1970 SC 1876 [LNIND 1968 SC 339] : (1969) 1 SCC 37 [LNIND",
1968 SC 339] : 1970 Cr LJ 1651 .,
"2. Mobarik Ali v State of Bombay, AIR 1957 SC 857 [LNIND 1957 SC 81] : 1957 Cr LJ 1346 (SC).",
"77. Subs. by the A.O. 1950, for section 5.",
"78. Ramachandrappa, (1883) 6 Mad 249; Motilal Shah, (1930) 32 Bom LR 1502 : 55 Bom 89.",
"79. UOI v Anand Singh Bisht, AIR 1997 SC 361 [LNIND 1996 SC 1341] : (1996) 10 SCC 153",
[LNIND 1996 SC 1341] : 1996 Cr LJ 4435 : (1996) 1 SCC (Cr) 1198.,
"80. Section 41 IPC, 1860.",
"81. Section 42 IPC, 1860.",
"82. Bhalchandra Ranadive, (1929) 31 Bom LR 1151 , 1178 : 54 Bom 35.",
"83. Hussun Ali, (1873) 5 NWP 49.",
"84. Kuloda Prosad Majumdar, (1906) 11 Cal WN 100; Bhogilal, (1931) 33 Bom LR 648 .",
"85. Joti Prasad Gupta, (1931) 53 All 642 , 649; Suchit Raut v State, (1929) 9 Pat 126.",
"86. Maya Mathew v State of Kerala, (2010) 4 SCC 498 [LNIND 2010 SC 190] : (2010) 3 SCR 16",
[LNIND 2010 SC 190] : AIR 2010 SC 1932 [LNIND 2010 SC 190] : 2010 (2) Scale 833 [LNIND,
2010 SC 190] .,
"87. P Raghava Kurup v V Ananthakumari, (2007) 9 SCC 179 [LNIND 2007 SC 215] : 2007 (2) SCR",
1058 [LNIND 2007 SC 215] : (2007) 3 Scale 431 [LNIND 2007 SC 215] .,
88. Section 2(a).,
89. Section 2(b).,
90. Section 2(c).,
91. Section 22.,
"92. Delhi Judicial Service, Association, Tis Hazari Court v State of Gujarat, AIR 1991 SC 2176",
[LNIND 1991 SC 446] : 1991 (4) SCC 406 [LNIND 1991 SC 446] .,
"93. VG Ramachandran, Contempt of Court, 6th Edn, p 319 quoted in Re MV Jayarajan, 2012 (1)",
Ker LT SN 23 : 2011 (4) KHC 585 .,
"94. V G Peterson v O V Forbes, AIR 1963 SC 692 [LNIND 1962 SC 298] : 1963 Supp (1) SCR 40 :",
1963 (1) Cr LJ 633 .,
"95. HG Rangangoud v State Trading Corp of India, AIR 2012 SC 490 : 2012 (1) SCC 297 .",
"96. Daroga Singh v BK Pandey, AIR 2004 SC 2579 [LNIND 2004 SC 485] : (2004) 5 SCC 26",
[LNIND 2004 SC 485] : 2004 Cr LJ 2084 .,
97. [s 228] - Intentional insult or interruption to public servant sitting in judicial proceeding.—,
"Whoever intentionally offers any insult, or causes any interruption to any public servant, while",
"such public servant is sitting in any stage of a judicial proceeding, shall be punished with simple",
"imprisonment for a term which may extend to six months, or with fine which may extend to one",
"thousand rupees, or with both.",
"98. Daroga Singh v BK Pandey, AIR 2004 SC 2579 [LNIND 2004 SC 485] : (2004) 5 SCC 26",
[LNIND 2004 SC 485] : 2004 Cr LJ 2084 .,
THE INDIAN PENAL CODE,
CHAPTER II GENERAL EXPLANATIONS,
THIS Chapter is for the most part an elaborate interpretation clause. It is a key to the,
interpretation of the whole Code. The leading terms used are here defined and,
"explained and the meanings thus, announced are steadily adhered to throughout the",
subsequent chapters.,
[s 6] Definitions in the Code to be understood subject to exceptions.,
"Throughout this Code every definition of an offence, every penal provision, and every",
"illustration of every such definition or penal provision, shall be understood subject to",
"the exceptions contained in the Chapter entitled ""General Exceptions"", though those",
"exceptions are not repeated in such definition, penal provision, or illustration.",
ILLUSTRATION,
"(a) The sections, in this Code, which contain definitions of offences, do not express",
"that a child under seven years of age cannot commit such offences, but the",
definitions are to be understood subject to the general exception which provides,
that nothing shall be an offence which is done by a child under seven years of,
age.,
"(b) A, a police-officer, without warrant, apprehends Z, who has committed murder.",
Here A is not guilty of the offence of wrongful confinement; for he was bound by,
law to apprehend Z and therefore the case falls within the general exception,
"which provides that ""nothing is an offence which is done by a person who is",
"bound by law to do it"".",
COMMENT—,
"The ""general exceptions"" enacted by Indian Penal Code, 1860 (IPC, 1860) are of",
"universal application and for the sake of brevity of expression, instead of repeating in",
"every section that the definition is to be taken subject to the exceptions, the legislature",
"by section 6 IPC, 1860 enacted that all the definitions must be regarded as subject to",
"the general exceptions. Therefore, general exceptions are part of the definition of every",
"offence contained in IPC, 1860, but the burden to prove their existence lies on the",
accused.1.,
Section 6 is a convenient formula to avoid reproduction of lengthy exceptions in the,
"description of offences. In other words, all the offences must be read subject to",
"Chapter IV relating to General Exceptions (sections. 76–106 IPC, 1860). So when an act",
"falls within any one of these exceptions by virtue of section 6 of the Code, the accused",
has to be given benefit of the appropriate General Exception even though it is not,
specifically stated over again in the description of the offence committed.2. Section 6,
of the Indian Penal Code imposes an obligation on the court to consider the case of,
exceptions on its own so far as it relates to the burden of proving legal insanity under,
section 106 of the Act. If the case of the accused comes within the purview of section,
"84 IPC, 1860, which is one of the provisions in Chapter IV of the General Exceptions of",
"the Indian Penal Code, the court is to give due consideration and find out as to whether",
at the time of the occurrence the accused had any mental disability so as not to know,
what he was doing.3.,
The provisions of section 6 should be read as a proviso to section 105 of the Evidence,
"Act 1872.4. When a person is accused of any offence, the burden of proving the",
existence of circumstances bringing the case within any of the General Exceptions in,
"the Indian Penal Code (XLV of 1860), or within any special exception or proviso",
"contained in any other part of the same Code, or in any law defining the offence, is",
"upon him, and the Court shall presume the absence of such circumstances.5.",
"1. Shankar Narayan Bhadolkar v State of Maharashtra, AIR 2004 SC 1966 [LNIND 2004 SC 1370] :",
(2005) 9 SCC 71 [LNIND 2004 SC 1370] .,
"2. Abdul Latif v State of Assam, 1981 Cr LJ 1205 (Gau); see also Patras Mardi v State, 1982 Cr",
LJ NOC 7 (Gau).,
"3. Khageswar Pujari v State of Orissa, 1984 Cr LJ 1108 (Orissa), see also Smt. Sandhya Rani",
"Bardhan v State, 1977 Cr LJ NOC 245 (Gau). Subodh Tewari v State of Assam, 988 Cr LJ 223",
(Assam).,
"4. Khuraijam Somat Singh v State, 1997 Cr LJ 1461 (Gau).",
5. Section 105 Evidence Act.,
THE INDIAN PENAL CODE,
CHAPTER II GENERAL EXPLANATIONS,
THIS Chapter is for the most part an elaborate interpretation clause. It is a key to the,
interpretation of the whole Code. The leading terms used are here defined and,
"explained and the meanings thus, announced are steadily adhered to throughout the",
subsequent chapters.,
[s 7] Sense of expression once explained.,
Every expression which is explained in any part of this Code is used in every part of,
this Code in conformity with the explanation.,
COMMENT—,
"Section 7 of IPC, 1860 provides that 'every expression' which is explained in any part of",
"the Code, is used in every part of the Code in conformity with the explanation. Let it be",
"noted that unlike the modern statute, section 7 does not provide 'unless the context",
otherwise indicate' a phrase that prefaces the dictionary clauses of a modern statute.,
"Therefore, the expression 'Government' in section 21(12)(a) must mean either the",
Central Government or the Government of a State.6.,
"6. RS Nayak v AR Antulay, (1984) 2 SCC 183 [LNIND 1984 SC 43] : AIR 1984 SC 684 [LNIND",
1984 SC 43] .,
THE INDIAN PENAL CODE,
CHAPTER II GENERAL EXPLANATIONS,
THIS Chapter is for the most part an elaborate interpretation clause. It is a key to the,
interpretation of the whole Code. The leading terms used are here defined and,
"explained and the meanings thus, announced are steadily adhered to throughout the",
subsequent chapters.,
[s 8] Gender.,
"The pronoun ""he"" and its derivatives are used of any person, whether male or female.",
COMMENT—,
Section 8 of the Indian Penal Code lays down that the pronoun 'he' and its derivatives,
"are used for any person whether male or female. Thus, in view of section 8, IPC, 1860",
"read with section 2(y), Code of Criminal Procedure, 1973 (Cr PC, 1973) the pronoun 'his'",
"in clause (d) of section 125(1), Cr PC, 1973 also indicates a female.7.",
"7. Vijaya (Dr.) v Kashirao Rajaram Sawai, 1987 Cr LJ 977 : AIR 1987 SC 1100 [LNIND 1987 SC",
"200] ; M Areefa Beevi v Dr. K M Sahib, 1983 Cr LJ 412 (Ker) : See also Girdhar Gopal v State, 1953",
"Cr LJ 964 (MB) (Section 354 IPC, 1860).",
THE INDIAN PENAL CODE,
CHAPTER II GENERAL EXPLANATIONS,
THIS Chapter is for the most part an elaborate interpretation clause. It is a key to the,
interpretation of the whole Code. The leading terms used are here defined and,
"explained and the meanings thus, announced are steadily adhered to throughout the",
subsequent chapters.,
[s 9] Number.,
"Unless the contrary appears from the context, words importing the singular number",
"include the plural number, and words importing the plural number include the singular",
number.,
THE INDIAN PENAL CODE,
CHAPTER II GENERAL EXPLANATIONS,
THIS Chapter is for the most part an elaborate interpretation clause. It is a key to the,
interpretation of the whole Code. The leading terms used are here defined and,
"explained and the meanings thus, announced are steadily adhered to throughout the",
subsequent chapters.,
"[s 10] ""Man"" ""Woman"".",
"The word ""man"" denotes a male human being of any age; the word ""woman"" denotes a",
female human being of any age.,
COMMENT—,
"A female child of seven and a half months was held to be a ""woman"" for the purpose of",
"section 354 IPC, 1860.8.",
"8. State of Punjab v Major Singh, AIR 1967 SC 63 [LNIND 1966 SC 130] : 1967 Cr LJ 1 .",
THE INDIAN PENAL CODE,
CHAPTER II GENERAL EXPLANATIONS,
THIS Chapter is for the most part an elaborate interpretation clause. It is a key to the,
interpretation of the whole Code. The leading terms used are here defined and,
"explained and the meanings thus, announced are steadily adhered to throughout the",
subsequent chapters.,
"[s 11] ""Person"".",
"The word ""person"" includes any Company or Association or body of persons, whether",
incorporated or not.,
COMMENT—,
"The term 'person' has been defined in section 11, IPC, 1860, and the same is in pari",
"materia with section 3(42) of the General Clauses Act 1897. Obviously, the definition is",
"inclusive.9. A natural person, an incorporated person or even an unincorporated",
association or body of persons like a partnership can be a person under section 11 of,
"IPC, 1860.10. The Supreme Court has held in Standard Chartered Bank v Directorate of",
"Enforcement,11. that, as regards corporate criminal liability, there is no doubt that a",
"corporation or company could be prosecuted for any offence punishable under law,",
whether it is coming under the strict liability or under absolute liability. A juristic person,
"has been held to come within the meaning of the word ""person"" for the purposes of",
section 415 (cheating).12.,
"The State and its instrumentalities are juristic persons,13. but by implication, the State",
stands excluded from the purview of the word 'person' for the purpose of limiting its,
"right to avail the revisional power of the High Court under section 397(1) of Cr PC, 1973",
"for the reason that the State, being the prosecutor of the offender, is enjoined to",
conduct prosecution on behalf of the society and to take such remedial steps as to,
deems proper.14. Chief Educational Officer is an artificial person/ juristic person falling,
"under section 11 of IPC, 1860.15.",
[s 11.1] Accused person.—,
"Though the word ""person"" is defined in the Indian Penal Code section 11 and the",
General Clauses Act section 3(42) which are identical and are not exhaustive but an,
"inclusive one. The words ""accused"" or ""accused person"" or ""accused of an offence"" are",
not defined either in the Indian Penal Code or in the Indian Evidence Act or in the,
General Clauses Act 1897.16.,
[s 11.2] Complainant.—,
A complaint can be filed in the name of a juristic person because it is also a person in,
the eye of law. It is clear that complainant must be a corporeal person who is capable,
of making a physical presence in the court. Its corollary is that even if the complaint is,
made in the name of incorporeal person (like a company or corporation) it is necessary,
that a natural person represents such juristic person in the court and it is that natural,
"person who is looked upon, for all practical purposes, to be the complainant in the",
"case. In other words, when the complainant is a body corporate it is the de jure",
"complainant, and it must necessarily associate a human being as de facto complainant",
to represent the former in court proceedings.17. A company is a person in law and not,
in fact. A person in law is always required to be represented by a person in fact. A,
"company can file a complaint for Defamation (section 500 IPC, 1860) through its",
authorised representative.18.,
"9. Chief Education Officer, Salem v K S Palanichamy, 2012 Cr LJ 2543 (Mad).",
"10. B Raman v M/S. Shasun Chemicals and Drugs Ltd, 2006 Cr LJ 4552 (Mad); Target Overseas",
"Exports Pvt Ltd v A M Iqbal, 2005 Cr LJ 1931 (Ker).",
"11. Standard Chartered Bank v Directorate of Enforcement, AIR 2005 SC 2622 [LNIND 2005 SC",
476] .,
"12. Reji Michael v Vertex Securities Ltd, 1999 Cr LJ 3787 (Ker).",
"13. Common Cause, A Registered Society v UOI, (1999) 6 SCC 667 [LNIND 1999 SC 637] : AIR",
1999 SC 2979 [LNIND 1999 SC 637] .,
"14. Krishnan v Krishnaveni, AIR 1997 SC 987 [LNIND 1997 SC 1883] : 1997 Cr LJ 1519 : (1997) 4",
SCC 241 [LNIND 1997 SC 1883] .,
"15. Chief Education Officer, Salem v K S Palanichamy, 2012 Cr LJ 2543 (Mad).",
"16. Directorate of Enforcement v Deepak Mahajan, AIR 1994 SC 1775 [LNIND 1993 SC 656] :",
(1994) 3 SCC 440 : 1994 Cr LJ 2269 .,
"17. Associated Cement Co Ltd v Keshvanand, AIR 1998 SC 596 [LNIND 1997 SC 1634] : (1998) 1",
SCC 687 [LNIND 1997 SC 1634] : 1998 Cr LJ 856 .,
"18. CM Ibrahim v Tata Sons Ltd, 2009 Cr LJ 228 (Kar).",
THE INDIAN PENAL CODE,
CHAPTER II GENERAL EXPLANATIONS,
THIS Chapter is for the most part an elaborate interpretation clause. It is a key to the,
interpretation of the whole Code. The leading terms used are here defined and,
"explained and the meanings thus, announced are steadily adhered to throughout the",
subsequent chapters.,
"[s 12] ""Public."".",
"The word ""public"" includes any class of the public, or any community.",
COMMENT—,
This definition is inclusive and does not define the word 'public'. It only says that any,
class of public or any community is included within the term 'public'. A body or class of,
persons living in a particular locality may come within the term 'public'.19.,
"19. Harnandan Lal v Rampalak Mahto, (1938) 18 Pat 76.",
THE INDIAN PENAL CODE,
CHAPTER II GENERAL EXPLANATIONS,
THIS Chapter is for the most part an elaborate interpretation clause. It is a key to the,
interpretation of the whole Code. The leading terms used are here defined and,
"explained and the meanings thus, announced are steadily adhered to throughout the",
subsequent chapters.,
[s 13] [Repealed],
"[Definition of ""Queen"".] [Rep. by the A.O. 1950.]",
THE INDIAN PENAL CODE,
CHAPTER II GENERAL EXPLANATIONS,
THIS Chapter is for the most part an elaborate interpretation clause. It is a key to the,
interpretation of the whole Code. The leading terms used are here defined and,
"explained and the meanings thus, announced are steadily adhered to throughout the",
subsequent chapters.,
"20.[[s 14] ""Servant of Government"".",
"The words ""servant of Government"" denote any officer or servant continued, appointed",
or employed in India by or under the authority of Government.],
"20. Subs. by the A.O. 1950, for section 14.",
THE INDIAN PENAL CODE,
CHAPTER II GENERAL EXPLANATIONS,
THIS Chapter is for the most part an elaborate interpretation clause. It is a key to the,
interpretation of the whole Code. The leading terms used are here defined and,
"explained and the meanings thus, announced are steadily adhered to throughout the",
subsequent chapters.,
"20.[[s 14] ""Servant of Government"".",
"The words ""servant of Government"" denote any officer or servant continued, appointed",
or employed in India by or under the authority of Government.],
"20. Subs. by the A.O. 1950, for section 14.",
THE INDIAN PENAL CODE,
CHAPTER II GENERAL EXPLANATIONS,
THIS Chapter is for the most part an elaborate interpretation clause. It is a key to the,
interpretation of the whole Code. The leading terms used are here defined and,
"explained and the meanings thus, announced are steadily adhered to throughout the",
subsequent chapters.,
[s 15] [Repealed],
"[Definition of ""British India"".] [Rep. by the A.O. 1937.]",
THE INDIAN PENAL CODE,
CHAPTER II GENERAL EXPLANATIONS,
THIS Chapter is for the most part an elaborate interpretation clause. It is a key to the,
interpretation of the whole Code. The leading terms used are here defined and,
"explained and the meanings thus, announced are steadily adhered to throughout the",
subsequent chapters.,
[s 16] [Repealed],
"[Definition of ""Government of India"".] [Rep. by the A.O. 1937.]",
THE INDIAN PENAL CODE,
CHAPTER II GENERAL EXPLANATIONS,
THIS Chapter is for the most part an elaborate interpretation clause. It is a key to the,
interpretation of the whole Code. The leading terms used are here defined and,
"explained and the meanings thus, announced are steadily adhered to throughout the",
subsequent chapters.,
"21.[s 17] ""Government""",
"The word ""Government"" denotes the Central Government or the Government of a 22.",
[***] State.],
COMMENT—,
Legislature of a State cannot be comprehended in the expression 'State,
Government'.23.,
"21. Subs. by A.O. 1950, for section 17.",
"22. The word and letter ""Part A"" omitted by Act 3 of 1951, section 3 and Sch (w.e.f. 1-4-1951).",
"23. RS Nayak v AR Antulay, (1984) 2 SCC 183 [LNIND 1984 SC 43] : AIR 1984 SC 684 [LNIND",
1984 SC 43] .,
THE INDIAN PENAL CODE,
CHAPTER II GENERAL EXPLANATIONS,
THIS Chapter is for the most part an elaborate interpretation clause. It is a key to the,
interpretation of the whole Code. The leading terms used are here defined and,
"explained and the meanings thus, announced are steadily adhered to throughout the",
subsequent chapters.,
"21.[s 17] ""Government""",
"The word ""Government"" denotes the Central Government or the Government of a 22.",
[***] State.],
COMMENT—,
Legislature of a State cannot be comprehended in the expression 'State,
Government'.23.,
"21. Subs. by A.O. 1950, for section 17.",
"22. The word and letter ""Part A"" omitted by Act 3 of 1951, section 3 and Sch (w.e.f. 1-4-1951).",
"23. RS Nayak v AR Antulay, (1984) 2 SCC 183 [LNIND 1984 SC 43] : AIR 1984 SC 684 [LNIND",
1984 SC 43] .,
THE INDIAN PENAL CODE,
CHAPTER II GENERAL EXPLANATIONS,
THIS Chapter is for the most part an elaborate interpretation clause. It is a key to the,
interpretation of the whole Code. The leading terms used are here defined and,
"explained and the meanings thus, announced are steadily adhered to throughout the",
subsequent chapters.,
"24.[[s 18] ""India.""",
"""India"" means the territory of India excluding the State of Jammu and Kashmir.]",
COMMENT—,
This exclusion of the State of Jammu and Kashmir in this section is not violative of,
"Article 1 and the First Schedule of the Constitution of India.25. In fact, Fazal Ali, CJ, as",
"he then was, held that exclusion of a territory postulates the existence of a territory",
itself; State of Jammu and Kashmir cannot be taken as a foreign territory.26. Since the,
First Schedule to the Constitution of India specifically includes Jammu and Kashmir as,
"a part of the territories of India, the exclusion of the State of Jammu and Kashmir from",
section 18 of the Penal Code only means that for the purposes of application of the,
"provisions of the Indian Penal Code, that State shall not be considered as a part of",
"India. In fact, section 1 of the Code itself makes this position abundantly clear. The",
State of Jammu and Kashmir has a separate Penal Code of its own. It is known as the,
"Ranbir Penal Code, which is almost same as the Indian Penal Code.",
"24. Subs. by Act 3 of 1951, section 3 and Sch, for section 18 (w.e.f. 1-4-1951). Earlier section 18",
was repealed by the A.O. 1937 and was again inserted by the A.O. 1950.,
"25. KRK Vara Prasad v UOI, AIR 1980 AP 243 [LNIND 1980 AP 27] .",
"26. Virender Singh v General Officer Commanding, 1974 J & K LR 101 (FB).",
THE INDIAN PENAL CODE,
CHAPTER II GENERAL EXPLANATIONS,
THIS Chapter is for the most part an elaborate interpretation clause. It is a key to the,
interpretation of the whole Code. The leading terms used are here defined and,
"explained and the meanings thus, announced are steadily adhered to throughout the",
subsequent chapters.,
"24.[[s 18] ""India.""",
"""India"" means the territory of India excluding the State of Jammu and Kashmir.]",
COMMENT—,
This exclusion of the State of Jammu and Kashmir in this section is not violative of,
"Article 1 and the First Schedule of the Constitution of India.25. In fact, Fazal Ali, CJ, as",
"he then was, held that exclusion of a territory postulates the existence of a territory",
itself; State of Jammu and Kashmir cannot be taken as a foreign territory.26. Since the,
First Schedule to the Constitution of India specifically includes Jammu and Kashmir as,
"a part of the territories of India, the exclusion of the State of Jammu and Kashmir from",
section 18 of the Penal Code only means that for the purposes of application of the,
"provisions of the Indian Penal Code, that State shall not be considered as a part of",
"India. In fact, section 1 of the Code itself makes this position abundantly clear. The",
State of Jammu and Kashmir has a separate Penal Code of its own. It is known as the,
"Ranbir Penal Code, which is almost same as the Indian Penal Code.",
"24. Subs. by Act 3 of 1951, section 3 and Sch, for section 18 (w.e.f. 1-4-1951). Earlier section 18",
was repealed by the A.O. 1937 and was again inserted by the A.O. 1950.,
"25. KRK Vara Prasad v UOI, AIR 1980 AP 243 [LNIND 1980 AP 27] .",
"26. Virender Singh v General Officer Commanding, 1974 J & K LR 101 (FB).",
THE INDIAN PENAL CODE,
CHAPTER II GENERAL EXPLANATIONS,
THIS Chapter is for the most part an elaborate interpretation clause. It is a key to the,
interpretation of the whole Code. The leading terms used are here defined and,
"explained and the meanings thus, announced are steadily adhered to throughout the",
subsequent chapters.,
"[[s 19] ""Judge.""",
"[s 19] The word ""Judge"" denotes not only every person who is officially designated as",
"a Judge, but also every person,—",
"who is empowered by law to give, in any legal proceeding, civil or criminal, a definitive",
"judgment, or a judgment which, if not appealed against, would be definitive, or a",
"judgment which, if confirmed by some other authority, would be definitive, or",
"who is one of a body of persons, which body of persons is empowered by law to give",
such a judgment.,
ILLUSTRATIONS,
"(a) A Collector exercising jurisdiction in a suit under Act 10 of 1859, is a Judge.",
(b) A Magistrate exercising jurisdiction in respect of a charge on which he has,
"power to sentence to fine or imprisonment, with or without appeal, is a Judge.",
"(c) A member of a panchayat which has power, under 27.Regulation VII, 1816, of the",
"Madras Code, to try and determine suits, is a Judge.",
(d) A Magistrate exercising jurisdiction in respect of a charge on which he has,
"power only to commit for trial to another Court, is not a Judge.",
COMMENT—,
"Section 19 IPC, 1860 defines a 'Judge' as denoting not only every person who is",
"officially designated as a Judge, but also every person who is empowered by law to",
"give in any legal proceedings, civil or criminal, a definitive judgment, or a judgment",
"which, if not appealed against, would be definitive, or a judgment which, if confirmed by",
"some other authority, would be definitive, or who is one of a body of persons",
empowered by law to give such a judgment. The Collector is neither a Judge as defined,
"under section 19 nor does he act judicially, when discharging any of the functions",
under the Land Acquisition Act.28. Regional Provident Fund Commissioner while,
passing an order under section 7-A of Employees' Provident Funds and Miscellaneous,
"Provisions Act 1952 was 'Judge' within definition under section 19 of IPC, 1860.29. The",
right to pronounce a definitive judgment is considered the sine qua non of a Court.30.,
"Illustration (d) is very important as it indicates that a Magistrate, who has power to try",
"and determine cases, is a Court of Justice, but is not a Court of Justice when sitting in",
committal proceedings.,
"27. Rep. by the Madras Civil Courts Act, 1873 (3 of 1873).",
"28. Surendra Kumar Bhatia v Kanhaiya Lal, AIR 2009 SC 1961 [LNIND 2009 SC 209] : (2009)12",
SCC 184 [LNIND 2009 SC 209] .,
"29. E S Sanjeeva Rao v CBI, Mumbai, 2012 Cr LJ 4053 (Bom) : 2013 (1) RCR (Criminal) 284.",
"30. Brajnandan Sinha v Jyoti Narain, AIR 1956 SC 66 [LNIND 1955 SC 98] : 1956 SCJ 155 .",
THE INDIAN PENAL CODE,
CHAPTER II GENERAL EXPLANATIONS,
THIS Chapter is for the most part an elaborate interpretation clause. It is a key to the,
interpretation of the whole Code. The leading terms used are here defined and,
"explained and the meanings thus, announced are steadily adhered to throughout the",
subsequent chapters.,
"[s 20] ""Court of Justice."".",
"The words ""Court of Justice"" denote a Judge who is empowered by law to act",
"judicially alone, or a body of Judges which is empowered by law to act judicially as a",
"body, when such Judge or body of Judges is acting judicially.",
ILLUSTRATION,
"A panchayat acting under 31.Regulation VII, 1816, of the Madras Code, having power to",
"try and determine suits, is a Court of Justice.",
COMMENT—,
The word 'court' is a generic term and embraces a Judge but the vice versa is not true.,
"Therefore, the words 'court' and 'Judge' are frequently used interchangeably because a",
Judge is an essential constituent of a court since there can be no dispensation of,
justice without a Judge. But that is not to say that when a Judge demits office the court,
ceases to exist Supreme Court Legal Aid Committee v UOI.32.,
"31. Rep. by the Madras Civil Courts Act, 1873 (3 of 1873).",
"32. Supreme Court Legal Aid Committee v UOI, (1994) 6 SCC 731 [LNIND 1994 SC 955] : JT 1994",
(6) SC 544 [LNIND 1989 SC 165] .,
THE INDIAN PENAL CODE,
CHAPTER II GENERAL EXPLANATIONS,
THIS Chapter is for the most part an elaborate interpretation clause. It is a key to the,
interpretation of the whole Code. The leading terms used are here defined and,
"explained and the meanings thus, announced are steadily adhered to throughout the",
subsequent chapters.,
"[s 21] ""Public servant."".",
"The words ""public servant"" denote a person falling under any of the descriptions",
hereinafter following; namely:—,
33. [***],
"34.Second.—Every Commissioned Officer in the Military, 35.[Naval or Air] Forces 36.[37.",
[***] of India];,
"38. [Third.—Every Judge including any person empowered by law to discharge,",
"whether by himself or as a member of any body of persons, any adjudicatory",
functions;],
"Fourth.—Every officer of a Court of Justice 39.[(including a liquidator, receiver or",
"commissioner)] whose duty it is, as such officer, to investigate or report on any matter",
"of law or fact, or to make, authenticate, or keep any document, or to take charge or",
"dispose of any property, or to execute any judicial process, or to administer any oath,",
"or to interpret, or to preserve order in the Court, and every person specially authorized",
by a Court of Justice to perform any of such duties;,
"Fifth.—Every juryman, assessor, or member of a panchayat assisting a Court of",
Justice or public servant;,
Sixth.—Every arbitrator or other person to whom any cause or matter has been,
"referred for decision or report by any Court of Justice, or by any other competent",
public authority;,
Seventh.—Every person who holds any office by virtue of which he is empowered to,
place or keep any person in confinement;,
"Eighth.—Every officer of 40.[the Government] whose duty it is, as such officer, to",
"prevent offences, to give information of offences, to bring offenders to justice, or to",
"protect the public health, safety or convenience;",
"Ninth.—Every officer whose duty it is, as such officer, to take, receive, keep or expend",
"any property on behalf of 41.[the Government], or to make any survey, assessment or",
"contract on behalf of 42.[the Government], or to execute any revenue process, or to",
"investigate, or to report, on any matter affecting the pecuniary interests of 43.[the",
"Government], or to make, authenticate or keep any document relating to the pecuniary",
"interests of 44.[the Government], or to prevent the infraction of any law for the",
protection of the pecuniary interests of 45.[the Government]46.[***];,
"Tenth.—Every officer whose duty it is, as such officer, to take, receive, keep or expend",
"any property, to make any survey or assessment or to levy any rate or tax for any",
"secular common purpose of any village, town or district, or to make, authenticate or",
"keep any document for the ascertaining of the rights of the people of any village, town",
or district;,
47. [Eleventh.—Every person who holds any office in virtue of which he is empowered,
"to prepare, publish, maintain or revise an electoral roll or to conduct an election or",
part of an election;],
48. [Twelfth.—Every person—,
(a) in the service or pay of the Government or remunerated by fees or commission,
for the performance of any public duty by the Government;,
"(b) in the service or pay of a local authority, a corporation established by or under",
"a Central, Provincial or State Act or a Government company as defined in",
"section 617 of the Companies Act, 1956 (Act 1 of 1956).]",
ILLUSTRATION,
A Municipal Commissioner is a public servant.,
Explanation 1.—Persons falling under any of the above descriptions are public,
"servants, whether appointed by the Government or not.",
"Explanation 2.—Wherever the words ""public servant"" occur, they shall be",
understood of every person who is in actual possession of the situation of a,
"public servant, whatever legal defect there may be in his right to hold that",
situation.,
"49.[Explanation 3.—The word ""election"" denotes an election for the purpose of",
"selecting members of any legislative, municipal or other public authority, of",
"whatever character, the method of selection to which is by, or under, any law",
prescribed as by election.],
50.[***],
STATE AMENDMENT,
"Rajasthan.—In section 21, after clause twelfth, add the following clause, namely:",
"— ""Thirteenth.—Every person employed or engaged by any public body in the",
conduct and supervision of any examination recognised or approved under any,
law.,
Explanation.—The The expression 'Public Body' includes—,
"(a) a University, Board of Education or other body, either established by or",
under a Central or State Act or under the provisions of the Constitution of,
India or constituted by the Government; and,
"(b) a local authority.""",
"[Vide Rajasthan Act, 4 of 1993, sec. 2 (w.e.f. 11-2-1993)].",
COMMENT—,
Public Servant.—A line is drawn between the great mass of the community and certain,
"classes of persons in the service and pay of Government, or exercising various public",
"functions, who are here included in the words ""public servant."" There are several",
"offences which can only be committed by public servants and, on the other hand,",
public servants in the discharge of their duties have many privileges peculiar to,
themselves.51.,
The test to determine whether a person is a public servant is (1) whether he is in the,
service or pay of the Government and (2) whether he is entrusted with the performance,
of any public duty.52. The definition is not exhaustive. A person may be a public servant,
in terms of another statute.53.,
Illustration.—The illustration at the end of the section relates to clause (10). The word,
"""Commissioner"" is used in the sense of a Municipal Councillor or member and not",
"merely an officer designated as ""Commissioner.""54.",
"The definition of the term ""public servant"" cannot be extended to the provisions of the",
Representation of the People Act where this Act makes reference to persons in the,
service of the Government.55.,
[s 21.1] Enlargement of concept under Prevention of Corruption Act 1988.—,
Section 2(i) of the Prevention of Corruption Act 1988 has enlarged the concept of,
"public servant wider than that contained in section 21 IPC, 1860. A comparison of the",
"definition of 'public servant' contained in section 21 of IPC, 1860 and that contained in",
"section 2(c) of the 1988 Act would show that section 21 of IPC, 1860 did not include",
"persons falling under sub-clause (ix), (x), (xi) and (xii) of section 2(c). Sub-clause (viii)",
"of section 2(c) is also wider in amplitude than clause (12)(a) of section 21 of IPC,",
1860.56. Definition of 'public servant' is of no relevance under the PC Act 1988.57.,
[s 21.2] Definition not exhaustive.—,
The definition under the section has been held to be not exhaustive. A person may be a,
public servant in terms of some other statute.58.,
"[s 21.3] Judges [clause ""Third""].—",
"Examining the scope of clause ""third"", the Supreme Court has laid down in K",
"Veeraswami v UOI,59. that this category of public servants would include judges of the",
"High Courts and Supreme Court. The words ""every judge"", as used in the clause, the",
"Court said, indicates ""all judges and judges of all courts"". ""It is a general term... and",
should not be narrowly construed. It must receive comprehensive meaning. A judge of,
"the superior court cannot ... be excluded from the definition of ""public servant"". It is not",
necessary that there should be master and servant relationship to constitute a person,
"as a ""public servant"". The court noted that section 21 IPC, 1860 does not define the",
"expression ""public servant"" as a concept. It enumerates only the categories of public",
servants. Each category is different from the other and in some of the categories there,
is hardly any relationship of master and servant. In the view of the Andhra Pradesh,
High Court the Central Government is not a competent authority for sanctioning the,
prosecution of a High Court Judge.60.,
[s 21.4] Explanation 2.—,
The person who in fact discharges the duties of the office which brings him under,
"some one of the descriptions of public servant, is for all the purposes of the Code",
"rightfully a public servant, whatever legal defect there may be in his right to hold the",
office.61. But even if a person is in actual possession of the situation of a public,
"servant, he is not a public servant unless he has a right to hold that situation, although",
"in determining that right the legal defect, if any, has to be ignored.62. A public servant",
under suspension does not cease to be a public servant within the meaning of this,
section.63.,
[s 21.5] CASES.—,
.64.,
The following persons are held to be Public Servants:,
(1) Member of Parliament (MP)65.,
(2) Chief Minister and Ministers66.,
(3) Judges of Superior Courts67.,
(4) Speaker of Legislative Assembly68.,
(5) Employee of a Nationalised Bank69.,
(6) All Railway Servants70.,
(7) Teacher in a Government school71.,
(8) Chairman of Managing Committee of a Municipality72.,
(9) Employees of Life Insurance Corporation73.,
(10) Member of Auxiliary Air Force74.,
(11) Employee of Bharat Heavy Electricals (India) Limited75.,
(12) Employees of Government Company76.,
(13) Officers of State Electricity Board77.,
(14) An employee of a Co-operative Society which is controlled or aided by the,
"government, is a public servant covered under section 2(c) of the IPC Act",
198878. as also the manager for the commission of offence under section 409,
"of the IPC, 186079.",
"(15) Secretary, Health Supervisor of Municipality80.",
(16) Drug Inspector81.,
(17) Any surveyor while performing his legitimate function under any of the Revenue,
Civil Court82.,
(18) Government Pleaders83.,
(19) An IAS officer posted as the managing director of a State Financial,
Corporation84.,
(20) The sarpanch of a Gram Panchayat.85.,
The following persons are not Public Servants:,
(1) University Examiner86.,
(2) Elected office bearers with President and Secretary of a registered Co-operative,
Society.87.,
(3) A Chartered Accountant who had been appointed as an Investigator by the,
Central Government under the Insurance Act 1938.88.,
(4) Municipal Councillor89.,
(5) Laboratory Officer in Municipal Corporation90.,
(6) Member of IAS whose service placed at the disposal of Co-operative Society.91.,
(7) A Government Company is not a public servant though its employees are public,
servants Government Company.92.,
(8) Chairperson and Standing Committee Chairman of Municipality.93.,
(9) Leader of Opposition.94.,
(10) Hospital or the Authorization Committee constituted by the Government under,
section 9(4) of the Transplantation of Human Organs Act 1994.95.,
(11) Branch Manager under the Assam State Warehousing Corporation.96.,
(12) Commissioner appointed by Civil Court to seize account book.97.,
(13) A panel doctor under the ESI Scheme.98.,
33. Clause First omitted by the A.O. 1950.,
34. Clause First omitted by the A.O. 1950.,
"35. Subs. by Act 10 of 1927, section 2 and Sch. I, for ""or Naval"".",
"36. The original words ""of the Queen while serving under the Government of India, or any",
"Government"" have successively been amended by the A.O. 1937, the A.O. 1948 and the",
A.O.1950 to read as above.,
"37. The words ""of the Dominion"" omitted by the A.O. 1950.",
"38. Subs. by Act 40 of 1964, section 2, for clause Third (w.e.f. 18-12-1964).",
"39. Ins. by Act 40 of 1964, section 2 (w.e.f. 18-12-1964).",
"40. Subs. by the A.O. 1950, for ""the Crown"". Earlier the words ""the Crown"" were substituted by",
"the A.O. 1937, for the word ""Government"".",
"41. Subs. by the A.O. 1950, for ""the Crown"". Earlier the words ""the Crown"" were substituted by",
"the A.O. 1937, for the word ""Government"".",
"42. Subs. by the A.O. 1950, for ""the Crown"". Earlier the words ""the Crown"" were substituted by",
"the A.O. 1937, for the word ""Government"".",
"43. Subs. by the A.O. 1950, for ""the Crown"". Earlier the words ""the Crown"" were substituted by",
"the A.O. 1937, for the word ""Government"".",
"44. Subs. by the A.O. 1950, for ""the Crown"". Earlier the words ""the Crown"" were substituted by",
"the A.O. 1937, for the word ""Government"".",
"45. Subs. by the A.O. 1950, for ""the Crown"". Earlier the words ""the Crown"" were substituted by",
"the A.O. 1937, for ""the word Government"".",
"46. Certain words omitted by Act 40 of 1964, section 2 (w.e.f. 18-12-1964).",
"47. Ins. by Act 39 of 1920, section 2.",
"48. Subs. by Act 40 of 1964, section 2, for clause Twelfth (w.e.f. 18-12-1964).",
"49. Ins. by Act 39 of 1920, section 2.",
"50. Explanation 4 omitted by Act 40 of 1964, section 2 (w.e.f. 18-12-1964). Earlier Explanation 4",
"was inserted by Act 2 of 1958, section 2 (w.e.f. 12-2-1958).",
51. M&M 20.,
"52. GA Monterio, AIR 1957 SC 13 [LNIND 1956 SC 66] : 1957 Cr LJ 1956 . See further",
"Lakshmimansingh (Dr.) v Naresh KC Jah, 1990 Cr LJ 1921 : AIR 1990 SC 1976 [LNIND 1990 SC",
370] : (1990) 4 SCC 169 [LNIND 1990 SC 370] ; where a municipal officer working on deputation,
on a Government post (public analyst) committed an act entailing his removal and it was held,
that his removal would have to be effected by the Municipality and there he was not a public,
"servant and hence, permission of the State under s 197(1) of Cr PC, 1973 was not necessary.",
"Mohinder Singh v State of Punjab, 2001 Cr LJ 2329 (P&H), sanction is necessary only when the",
offence occurs in the course of the performance of official duty. For offences connected with,
"cheating, preparing false records, misappropriation of public funds, including criminal",
"conspiracy against a public servant, no prior sanction is necessary.",
53. Naresh Kumar Madan v State of MP AIR 2008 SC 385 [LNIND 2007 SC 452] : (2007) 4 SCC,
766 [LNIND 2007 SC 452] .,
"54. Banshilal Luhadia, AIR 1962 Raj 250 [LNIND 1962 RAJ 124] .",
"55. Abdul Rehman v State of Kerala, 1999 Cr LJ 4801 (Ker).",
"56. PV Narsimha Rao v State (CBI/SPE), AIR 1998 SC 2120 [LNIND 1998 SC 1259] : 1998 Cr LJ",
2930 .,
"57. State of Maharashtra v Prabhakarrao, (2002) 7 SCC 636 : JT 2002 (Supp1 ) SC 5.",
"58. Naresh Kumar Madan v State of MP, (2007) 4 SCC 766 [LNIND 2007 SC 452] : AIR 2008 SC",
385 [LNIND 2007 SC 452] : (2007) 2 KLT 539 : (2007) 54 AIC 87 .,
"59. K. Veeraswami v Union of India, (1991) 3 SCC 655 [LNIND 1991 SC 320] : 1991 SCC (Cr) 734",
: 1991 Cr LR (SC) 677 .,
"60. Advocate General, AP v Rachapudi Subba Rao, 1991 Cr LJ 613 AP.",
"61. Ramkrishna Das, (1871) 7 Beng LR 446, 448.",
"62. Bira Kishore, AIR 1964 Orissa 202 .",
"63. Dhanpal Singh, AIR 1970 Punj & Haryana 514.",
"64. M Karunanidhi v UOI, 1979 Cr LJ 773 : AIR 1979 SC 598 ; See also Shiv Bahadur, 1954 Cr LJ",
"910 : AIR 1954 SC 322 [LNIND 1954 SC 30] ; AR Antulay, (1984) Cr LJ 613 : AIR 1984; Rajendra",
"Kumar Singh v State of MP, 1999 Cr LJ 2807 (MP).",
"65. PV Narasimha Rao v State (CBI/SPE), AIR 1998 SC 2120 [LNIND 1998 SC 1259] : (1998) 4",
SCC 626 [LNIND 1998 SC 1259] (CB) Though another Constitution Bench in RS Nayak v AR,
"Antulay, AIR 1984 SC 684 [LNIND 1984 SC 43] : (1984) 2 SCC 183 [LNIND 1984 SC 43] that MLA",
"is not a public servant within the meaning of Section 21 IPC, 1860, in view of the Narasimha Rao",
case (Supra) MLA and MPs are public servant within the meaning of Section 2 (i) of PC Act. See,
"also Habibulla Khan v State of Orissa, 1993 Cr LJ 3604 ; L. K. Advani v Central Bureau of",
"Investigation, 1997 Cr LJ 2559 (Del) : 1997 (4) Crimes 1 [LNIND 1997 DEL 319] .",
"66. M Karunanidhi v UOI, AIR 1979 SC 898 [LNIND 1979 SC 135] : (1979) 3 SCC 431 [LNIND",
"1979 SC 135] ; R Sai Bharathi v J Jayalalitha, AIR 2004 SC 692 [LNIND 2003 SC 1023] : (2004) 2",
"SCC 9 [LNIND 2003 SC 1023] , Minister is a Public Servant -R Balakrishna Pillai v State of Kerala,",
"AIR 1996 SC 901 [LNIND 1995 SC 1239] : (1996) 1 SCC 478 [LNIND 1995 SC 1239] , Dattatraya",
"Narayan Patil v State of Maharashtra, AIR 1975 SC 1685 [LNIND 1975 SC 157] : (1976) 1 SCC 11",
"[LNIND 1975 SC 157] ; Rajendra Kumar Singh and etc. v State of MP, 1999 Cr LJ 2807 (MP).",
"67. K Veeraswami v UOI, (1991) 3 SCC 655 [LNIND 1991 SC 320] : (1991) 1 SCC (Cr) 734.",
"68. P Nallammal v State, 1999 Cr LJ 1591 (Mad).",
"69. UOI v Ashok Kumar Mitra, AIR 1995 SC 1976 [LNIND 1995 SC 295] : (1995) 2 SCC 768",
"[LNIND 1995 SC 295] ; Mir Nagvi Askari v CBI, AIR 2010 SC 528 [LNIND 2009 SC 1651] : (2009)",
"15 SCC 643 [LNIND 2009 SC 1651] ; State (Delhi Administration) v S R Vij, 1999 Cr LJ 4762 (Del).",
"70. Ram Krishan v State of Delhi, AIR 1956 SC 476 [LNIND 1956 SC 157] : 1956 Cr LJ 837 ,",
"Shamrao Vishnu Parulekar v The District Magistrate, AIR 1957 SC 23 [LNIND 1956 SC 60] : 1957",
"Cr LJ 5 ; GA Monterio v State of Ajmer, AIR 1957 SC 13 [LNIND 1956 SC 66] : 1957 Cr LJ 1 ;",
Bajrang Lal v State of Rajasthan AIR 1976 SC 1008 [LNIND 1976 SC 57] : (1976) 2 SCC 217,
"[LNIND 1976 SC 57] . But see KN Shukla v Navnit Lal Manilal Bhatt, AIR 1967 SC 1331 [LNIND",
1966 SC 310] : 1967 Cr LJ 1200 .,
"71. State of Ajmer v Shiv Lal, AIR 1959 SC 847 [LNIND 1959 SC 67] : 1959 Cr LJ 1127 .",
"72. Maharudrappa Danappa Kesarappanavar v The State of Mysore, AIR 1961 SC 785 [LNIND",
1961 SC 60] : 1961 Cr LJ 857 .,
"73. State through Central Bureau of Investigation v D P Dogra, AIR 1986 SC 312 : (1985) 4 SCC",
319 .,
"74. State (SPE, Hyderabad) v Air Commodore Kailash Chand, AIR 1980 SC 522 [LNIND 1979 SC",
504] : (1980) 1 SCC 667 [LNIND 1979 SC 504] .,
"75. State of MP v M v Narasimhan, AIR 1975 SC 1835 [LNIND 1975 SC 212] : (1975) 2 SCC 377",
[LNIND 1975 SC 212] .,
76. National Small Industries Corporation Ltd v State AIR 2009 SC 1284 [LNIND 2008 SC 2243] :,
(2009) 1 SCC 407 [LNIND 2008 SC 2243] .,
"77. Bihar State Electricity Board v Nand Kishore Tamakhuwala, AIR 1986 SC 1653 [LNIND 1986",
"SC 82] : (1986) 2 SCC 414 [LNIND 1986 SC 82] , Naresh Kumar Madan v State of MP AIR 2008 SC",
385 [LNIND 2007 SC 452] : (2007) 4 SCC 766 [LNIND 2007 SC 452] .,
78. Govt. of AP v P Venken Reddy AIR 2002 SC 3346 : (2002) 7 SCC 631 .,
"79. Haridas Mondal v State of WB, 2016 Cr LJ 4335 : 2016 (4) Crimes 530 (Cal).",
"80. Chairperson, Kanhangad Municipality v State of Kerala, 2012 Cr LJ 4366 (Ker); G S K",
"Janardhana Rao v Guntupalli Guru Prasad, 2000 Cr LJ 2927 (A.P) - officers of Municipal",
Corporation.,
"81. Laxmi Medical Distributors v State of AP, 2005 Cr LJ 1601 (A.P).",
"82. Ram Avtar Sah v State of Bihar, 2002 Cr LJ 3899 (Pat).",
"83. Appadirai v State, Rep. By The Station House Officer, Cid Branch, Pondicherry 2001 Cr LJ",
3129 (Mad).,
"84. Girish Chandra Patra v Pinakee Enterprises Ltd, 1989 Cr LJ 527 (Ori).",
"85. Sarat Chandra Dehury v Sankirtan Behera, 1989 Cr LJ (NOC) 162 Orissa; Sukhdev Singh v",
"State of Punjab, 1988 Cr LJ 265 P&H.",
"86. Dilaver Babu Khurana v State of Maharashtra, AIR 2002 SC 564 [LNIND 2002 SC 1739] :",
"(2002) 2 SCC 135 [LNIND 2002 SC 1739] ; State of Gujarat v Manshanker Prabhashanker Dwivedi,",
AIR 1973 SC 330 [LNIND 1972 SC 257] : (1972) 2 SCC 392 [LNIND 1972 SC 257] .,
"87. Govt. of AP v P Venken Reddy, AIR 2002 SC 3346 : (2002) 7 SCC 631 : Rabindra Nath Bera v",
"State Of WB, 2012 Cr LJ 913 (Cal); Haladhar Sasmal v State Of WB, 2012 Cr LJ 1726 (CAL) A",
"'public servant' within the meaning of Maharashtra Co-operative Societies Act, 1960 is not a",
"public servant under Section 21 of IPC, 1860; State of Maharashtra v Laljit Rajshi Shah, AIR 2000",
SC 937 [LNIND 2000 SC 387] : (2000) 2 SCC 699 [LNIND 2000 SC 387] .,
"88. Ram Krishna Dalmia v Delhi Administration, (1963 (1) SCR 253 [LNIND 1962 SC 146] : AIR",
1962 SC 1821 [LNIND 1962 SC 146] ; Insurance surveyer is not public servant- 1988 Cr LJ 311,
Delhi).,
"89. State of TN v T Thulasingam, AIR 1995 SC 1314 [LNIND 1994 SC 1256] : (1994) Supp 2 SCC",
"405; Ramesh Balkrishna Kulkarni v State of Maharashtra, 1985 (3) SCC 606 [LNIND 1985 SC 235]",
: AIR 1985 SC 1655 [LNIND 1985 SC 235] .,
"90. Lakshmansingh Himatsingh Vaghela v Naresh Kumar Chandrashanker Jha, AIR 1990 SC 1976",
[LNIND 1990 SC 370] : (1990) 4 SCC 169 [LNIND 1990 SC 370] .,
"91. SS Dhanoa v Municipal Corporation Delhi, AIR 1981 SC 1395 [LNIND 1981 SC 282] : (1981) 3",
SCC 431 [LNIND 1981 SC 282] .,
"92. National Small Industries Corporation Ltd v State, AIR 2009 SC 1284 [LNIND 2008 SC 2243] :",
(2009) 1 SCC 407 [LNIND 2008 SC 2243] .,
"93. Chairperson, Kanhangad Municipality v State of Kerala, 2012 Cr LJ 4366 (Ker).",
"94. Sushil Modi v Mohan Guruswamy, 2008 Cr LJ 541 (Del).",
"95. Santosh Hospitals Private Ltd Chennai v State Human Rights Commission, TN AIR 2005 Mad.",
348 [LNIND 2005 MAD 935] .,
"96. Ghulam Rabbani v State of Assam, 2001 Cr LJ 2331 : 2002 (1) Crimes 132 [LNIND 2001 GAU",
403] (Gau).,
97. Padam Sen v State of UP AIR 1961 SC 218 [LNIND 1960 SC 221] : 1961 Cr LJ 322 .,
"98. State of Maharashtra v Dr. Rustom Franrose Hakim, 2000 Cr LJ 3401 (Bom).",
THE INDIAN PENAL CODE,
CHAPTER II GENERAL EXPLANATIONS,
THIS Chapter is for the most part an elaborate interpretation clause. It is a key to the,
interpretation of the whole Code. The leading terms used are here defined and,
"explained and the meanings thus, announced are steadily adhered to throughout the",
subsequent chapters.,
"[s 22] ""Movable property."".",
"The words ""movable property"" are intended to include corporeal property 1 of every",
"description, except land and things attached to the earth 2 or permanently fastened to",
anything which is attached to the earth.,
COMMENT—,
This definition is restricted to corporeal property; it excludes all choices in action. The,
"definition of ""movable property"" in the section is not exhaustive.99. The definition of",
"""movable property"" given in the Indian Penal Code is basically meant for the provisions",
"contained in the Indian Penal Code itself (section 125 Cr PC, 1973).100.",
"1. 'Corporeal property' is property which may be perceived by the senses, in",
"contradistinction to incorporeal rights, which are not so perceivable, as obligations of",
"all kinds. Thus, salt produced on a swamp,101. and papers forming part of the record of",
"a case,102. are movable property within the meaning of this section. Even if an",
"assessment order is not 'property' in the hands of the Income-tax Officer, it is 'property'",
"in the hands of the assessee (section 420 IPC, 1860).103.",
"2. 'Land and things attached to the earth'.—This section does not exempt ""earth and",
"things attached to the earth"", but ""land and things attached to the earth""; ""land"" and",
"""earth"" are not synonymous terms, and there is a great distinction between ""the earth"",",
"and ""earth"". By severance, things that are immovable become movable; and it is",
perfectly correct to call those things attached which can be severed; and undoubtedly it,
"is possible to sever earth from the earth and attach it again thereto. Earth, that is soil,",
"and all the component parts of the soil, inclusive of stones and minerals, when severed",
"from the earth or land to which it was attached, are movable property capable of being",
"the subject of theft.104. Any part of ""the earth"", whether it is stones or sand or clay or",
"any other component, when severed from ""the earth"", is movable property.105. Standing",
"crop, so long as it is attached to the earth is not movable property as defined in the",
"Code, but the moment it is severed from the earth its character is changed and it can",
become the subject of theft.106.,
Fish in any water are corporeal property and they become subject of theft as soon as,
"they are separated from the waters, dead or alive, and are moved.107.",
"99. RK Dalmia v Delhi Administration, AIR 1962 SC 1821 [LNIND 1962 SC 146] : (1962) 2 Cr LJ",
805 .,
"100. Bhagwat Baburao Gaikwad v Baburao Bhaiyya Gaikwad, 1993 Cr LJ 2393 (Bom).",
"101. Tamma Ghantaya, (1881) 4 Mad 228.",
"102. Ramaswami Aiyer v Vaithiling Mudali, (1882) 1 Weir 28.",
"103. Ishwarlal Girdharilal Parekh v State of Maharashtra, AIR 1969 SC 40 [LNIND 1968 SC 143] :",
1969 Cr LJ 271 .,
"104. Shivram, (1891) 15 Bom 702.",
"105. Suri Venkatappayya Sastri v Madula Venkanna, (1904) 27 Mad 531, 535 (FB), overruling",
"Kotayya, (1887) 10 Mad 255. It has been said that the words ""corporeal property of every",
"description"" were not supposed to apply for all purposes. The matter before the court was that",
of attachment of salary for payment of maintenance.,
"106. Kunhayu v State, 1965 KLT 66 : 1965 KLJ 51 .",
"107. State of Rajasthan v Pooran Singh, 1977 Cr LJ 1055 .",
THE INDIAN PENAL CODE,
CHAPTER II GENERAL EXPLANATIONS,
THIS Chapter is for the most part an elaborate interpretation clause. It is a key to the,
interpretation of the whole Code. The leading terms used are here defined and,
"explained and the meanings thus, announced are steadily adhered to throughout the",
subsequent chapters.,
"[s 23] ""Wrongful gain."".",
"""Wrongful gain"" is gain by unlawful means of property to which the person gaining is",
not legally entitled.,
"""Wrongful loss.""",
"""Wrongful loss"" is the loss by unlawful means of property to which the person",
losing it is legally entitled.,
"Gaining wrongfully, Losing wrongfully",
"A person is said to gain wrongfully when such person retains wrongfully, as well",
as when such person acquires wrongfully. A person is said to lose wrongfully,
"when such person is wrongfully kept out of any property,1 as well as when such",
person is wrongfully deprived of property.,
COMMENT—,
The word 'wrongful' means prejudicially affecting a party in some legal right. For either,
"wrongful loss or gain, the property must be lost to the owner, or the owner must be",
"wrongfully kept out of it. Thus, where a pledgee used a turban that was pledged, it was",
held that the deterioration of the turban by use was not 'wrongful loss' of property to,
"the owner, and the wrongful beneficial use of it by the pledgee was not a 'wrongful gain'",
to him.108. The gain or loss contemplated need not be a total acquisition or a total,
deprivation but it is enough if it is a temporary retention of property by the person,
"wrongfully gaining or a temporary ""keeping out"" of property from the person legally",
entitled.109. Forcible and illegal seizure of bullocks of a widow in satisfaction of a debt,
due to the accused by her deceased husband was held to be a 'wrongful loss'.110.,
"Where a person, who purchased rice from a famine relief officer, at a certain rate on",
"condition that he should sell it at a pound the rupee less, did not sell it at the rate",
"agreed upon, but at four pounds the rupee less, it was held that no wrongful gain or",
wrongful loss had been caused to anyone within the meaning of this section. The rice,
"having been sold to the accused, and he having paid for it, it was not unlawful for him",
to sell it again at such price as he thought fit.111. Where the accused removed jute kept,
in a pond of the complainant for wetting and requested the complainant to take it away,
"as the accused bona fide claimed the ownership of the pond, it was held that no",
wrongful loss was caused to the complainant.112.,
"The words ""gaining wrongfully,"" or ""losing wrongfully"" would cover cases of wrongful",
detention of property in the one case and wrongfully being kept out of property in the,
other.113.,
1. 'Wrongfully kept out of any property'.—When the owner is kept out of possession of,
his property with the object of depriving him of the benefit arising from the possession,
"even temporarily, the case will come within the definition. If a creditor by force or",
otherwise takes the goods of his debtor out of his possession against his will in order,
to put pressure on him to compel him to discharge his debt he will be guilty of theft by,
"causing wrongful loss to the debtor.114. The loss must be caused wrongfully. Thus,",
whose municipal officers demolished an unauthorised construction as the complainant,
"refused to remove the structure in spite of notice, they could not be held guilty of",
"committing an offence of mischief within the meaning of section 425, IPC, 1860, for",
there was no intention to cause wrongful loss to the complainant as the demolition,
was done lawfully in exercise of powers under sections 179 and 189 of the,
Maharashtra Municipalities Act.115.,
"Fees payable to a college for attending lectures are ""property"" within the meaning of",
this section.116.,
108. (1866) 3 MHC (Appx.) 6.,
"109. KN Mehra v State of Rajasthan, AIR 1957 SC 369 [LNIND 1957 SC 14] : 1957 Cr LJ 552 .",
"110. Preonath Banerjee, (1866) 5 WR (Cr) 68.",
"111. Lal Mohomed, (1874) 22 WR (Cr) 82.",
"112. Paltu Goswami v Ram Kumar, AIR 1960 Tripura 40 .",
"113. Krishan Kumar, (1960) 1 SCR 452 [LNIND 1959 SC 135] : 1959 Cr LJ 1508 : AIR 1960 SC",
1390 .,
"114. Sri Churn Chungo, (1895) 22 Cal 1017 , FB; Ganpat Krishnaji, (1930) 32 Bom LR 351 .",
"115. Shriram v Thakurdas, 1978 Cr LJ 715 (Bom).",
"116. Soshi Bhushan, (1893) 15 All 210 , 216.",
THE INDIAN PENAL CODE,
CHAPTER II GENERAL EXPLANATIONS,
THIS Chapter is for the most part an elaborate interpretation clause. It is a key to the,
interpretation of the whole Code. The leading terms used are here defined and,
"explained and the meanings thus, announced are steadily adhered to throughout the",
subsequent chapters.,
"[s 24] ""Dishonestly."".",
Whoever does anything with the intention of causing wrongful gain to one person or,
"wrongful loss to another person, is said to do that thing ""dishonestly"".",
COMMENT—,
From this definition it will appear that the term 'dishonestly' is not used in the Code in,
"its popular significance. Unless there is wrongful gain to one person, or wrongful loss",
"to another, an act would not be 'dishonest'. Wrongful gain includes wrongful retention",
and wrongful loss includes being kept out of the property as well as being wrongfully,
deprived of property.117. An act done with the intention to cause 'wrongful gain' can be,
said to be dishonest.118. Deceit is not an ingredient of the definition of the word,
"""dishonestly"". ""Dishonestly"" involves a pecuniary or economic gain or loss.119. Thus,",
"""dishonestly"" means an intention to cause either wrongful gain or wrongful loss. So",
where municipal officers demolished and removed an unauthorised structure lawfully,
"by virtue of powers given to them under the Municipal Act, it could not be said that they",
"committed the offence of theft under section 380, IPC, 1860, as their act was not",
"committed dishonestly within the meaning of section 24 read with section 23, IPC,",
"1860. And since ""dishonesty"" is an essential ingredient of the offence of theft, they",
could not be charged with that offence.120. A mere erroneous belief and persistence in,
a wrong or perverse opinion cannot be said to be offence tainted with a dishonest or,
fraudulent intent.121.,
[s 24.1] Cheating.—,
"Two main ingredients of section 420 IPC, 1860 are dishonest and fraudulent",
"intention.122. For the purpose of establishing the offence of cheating, the complainant",
is required to show that the accused had fraudulent or dishonest intention at the time,
of making promise or representation.123.,
[s 24.2] Breach of Trust.—,
The element of 'dishonest intention' is an essential element to constitute the offence of,
Criminal Breach of Trust.124.,
[s 24.3] Hire-purchase.—,
The element of 'dishonest intention' which is an essential element to constitute the,
offence of theft cannot be attributed to a person exercising his right under an,
agreement entered into between the parties as he may not have an intention of causing,
wrongful gain or to cause wrongful loss to the hirer.125.,
"117. Krishan Kumar v UOI, 1959 Cr LJ 1508 : AIR 1959 SC 1390 [LNIND 1959 SC 135] .",
"118. Venkatakrishnan v CBI, AIR 2010 SC 1812 [LNIND 2009 SC 1653] : (2009) 11 SCC 737",
[LNIND 2009 SC 1653] .,
"119. Dr. Vimala, AIR 1963 SC 1572 [LNIND 1962 SC 397] : (1963) 2 Cr LJ 434 .",
"120. Shriram v Thakurdas, 1978 Cr LJ 715 (Bom). See also Narendra Pratap Narain Singh v State",
"of UP, AIR 1991 SC 1394 [LNIND 1991 SC 186] : 1991 Cr LJ 1816 ; N Vaghul v State of",
"Maharashtra, 1987 Cr LJ 385 (Bom).",
"121. N Vaghul v State of Maharashtra, 1987 Cr LJ 385 (Bom).",
"122. Annamalai v State of Karnataka, (2010) 8 SCC 524 [LNIND 2010 SC 745] : 2011 Cr LJ 692 .",
"123. B Suresh Yadav v Sharifa Bee, AIR 2008 SC 210 [LNIND 2007 SC 1238] : (2007) 13 SCC 107",
"[LNIND 2007 SC 1238] ; Indian Oil Corporation vNEPC India Ltd, JT 2006 (6) SC 474 [LNIND 2006",
SC 537] ) : (2006) 6 SCC 736 [LNIND 2006 SC 537] .,
"124. Venkatakrishnan v CBI, AIR 2010 SC 1812 [LNIND 2009 SC 1653] : (2009) 11 SCC 737",
[LNIND 2009 SC 1653] .,
"125. Charanjit Singh Chadha v Sudhir Mehra, AIR 2001 SC 3721 [LNIND 2001 SC 2906] : (2001)7",
"SCC 417 [LNIND 2001 SC 2906] ; Sardar Trilok Singhv Satya Deo Tripathi, (1979) 4 SCC 396 : AIR",
"1979 SC 850 ; KA Mathai v Kora Bibbikutty, (1996) 7SCC 212 : (1996) 1 SCC (Cr) 281.",
THE INDIAN PENAL CODE,
CHAPTER II GENERAL EXPLANATIONS,
THIS Chapter is for the most part an elaborate interpretation clause. It is a key to the,
interpretation of the whole Code. The leading terms used are here defined and,
"explained and the meanings thus, announced are steadily adhered to throughout the",
subsequent chapters.,
"[s 25] ""Fraudulently."".",
A person is said to do a thing fraudulently if he does that thing with intent to defraud 1,
but not otherwise.,
COMMENT—,
The intention with which an act is done is very important in determining whether the,
act is done 'dishonestly' or 'fraudulently'.,
1. 'Intent to defraud'.—The terms 'fraud' and 'defraud' are not defined in the Penal Code.,
The word 'defraud' is of double meaning in the sense that it either may or may not imply,
"deprivation, and, as it is not defined, its meaning must be sought by a consideration of",
the context in which the word 'fraudulently' is found.126.,
"Fraud is an act of deliberate deception with a design to secure something, which is",
otherwise not due. Fraud and deception are synonymous.127.,
To 'defraud' or do something fraudulently is not by itself made an offence under the,
"Penal Code, but various acts when done fraudulently (or fraudulently and dishonestly)",
are made offences. These include:,
"(i) Fraudulent removal or concealment of property (sections 206, 421, 424)",
(ii) Fraudulent claim to property to prevent seizure (section 207).,
(iii) Fraudulent suffering or obtaining a decree (sections 208 and 210),
"(iv) Fraudulent possession/delivery of counterfeit coin (sections 239, 240, 242 and",
243).,
(v) Fraudulent alteration/diminishing weight of coin (sections 246–253),
(vi) Fraudulent acts relating to stamps (sections 261–261),
(vii) Fraudulent use of false instruments/weight/measure (sections 264–266),
(viii) Cheating (sections 415–420),
(ix) Fraudulent prevention of debt being available to creditors (section 422).,
(x) Fraudulent execution of deed of transfer containing false statement of,
consideration (section 423).,
(xi) Forgery making or executing a false document (sections 463–471 and 474),
"(xii) Fraudulent cancellation/destruction of valuable security, etc. (section 477)",
(xiii) Fraudulently going through marriage ceremony (section 496).,
"It follows therefore, that by merely alleging or showing that a person acted fraudulently,",
it cannot be assumed that he committed an offence punishable under the Code or any,
"other law, unless that fraudulent act is specified to be an offence under the Code or",
other law.128.,
"The expression 'defraud' involves two elements, namely, deceit and injury to the person",
deceived. The injury may even comprise a non-economic or non-pecuniary loss. Even in,
those rare cases where the benefit to the deceiver does not cause corresponding loss,
"to the deceived, the second condition is satisfied.129. The expression ""intent to deceive""",
"is different from the expression ""intent to defraud"".130. ""Intent to defraud"" is established",
only when the deception has as its aim some advantage or the likelihood of advantage,
to the person who causes the deceit or some kind of injury or the possibility of injury to,
"another.131. Thus, where an expert deposing before a court as a defence witness was",
asked to produce his credentials before the court and it appeared from the documents,
"produced that they were not genuine, it was held that as he acted under the orders of",
"the court and not voluntarily, it could not be said that his intention was to cause any",
"one to act to his disadvantage. In the circumstances, he did not act with ""intent to",
"defraud"". He was, therefore, held liable under sections 193 and 196 but not under",
"sections 465 and 471, IPC, 1860.132.",
[s 25.1] 'Fraudulently'; 'dishonestly'.—,
"According to the Supreme Court ""the word ""defraud"" includes an element of deceit.",
"Deceit is not an ingredient of the definition of the word ""dishonestly"" while it is an",
"important ingredient of the definition of the word ""fraudulently"". The former involves a",
pecuniary or economic gain or loss while the latter by construction excludes that,
"element. Further, the juxtaposition of the two expressions ""dishonestly"" and",
"""fraudulently"" used in the various sections of the Code indicate their close affinity and",
"therefore, the definition of one may give colour to the other. To illustrate, in the",
"definition of ""dishonestly"", wrongful gain or wrongful loss is the necessary ingredient.",
"Both need not exist, one would be enough. So too, if the expression ""fraudulently"" were",
"to be held to involve the element of injury to the person or persons deceived, it would",
be reasonable to assume that the injury should be something other than pecuniary or,
economic loss. Though almost always an advantage to one causes loss to another and,
"vice versa, it need not necessarily be so.""133.",
"Where the accused, after the execution and registration of a document, which was not",
"required by law to be attested, added his name to the document as an attesting",
"witness, it was held that his act was neither fraudulent nor dishonest and the accused",
"was, therefore, not guilty of forgery.134. A person who is not a member of Scheduled",
Caste or Scheduled Tribes obtains a false certificate with a view to gain undue,
advantage to which he or she was not otherwise entitled to would amount to,
commission of fraud135. Suppression of a material document would also amount to a,
fraud on the court.136.,
"126. Abbas Ali, supra.",
"127. Meghmala v G Narasimha Reddy, 2010 (8) SCC 383 [LNIND 2010 SC 761] ; Inderjit Singh",
"Grewal v State of Punjab, (2011) 12 SCC 588 [LNIND 2011 SC 801] : (2011) 10 SCR 557 [LNIND",
2011 SC 801] : 2012 Cr LJ 309 (SC).,
"128. Mohd. Ibrahim v State of Bihar, (2009) 8 SCC 751 [LNIND 2009 SC 1774] : (2009) 3 SCC (Cr)",
929.,
"129. Dr. Vimala, AIR 1963 SC 1572 [LNIND 1962 SC 397] : (1963) 2 Cr LJ 434 ; State of UP v",
"Ranjit Singh, AIR 1999 SC 1201 : 1999 (2) SCC 617 .",
"130. S Dutt v State of UP, 1966 Cr LJ 459 : AIR 1960 SC 523 .",
"131. Re: BV Padmanabha Rao, 1970 Cr LJ 1502 (Mysore).",
"132. S Dutt, Supra.",
"133. Dr. Vimla, AIR 1963 SC 1572 [LNIND 1962 SC 397] : (1963) 2 Cr LJ 434 .",
"134. Surendra Nath Ghosh, (1910) 14 CWN 1076 . See also TR Arya v State of Punjab, 1987 Cr LJ",
"222 (P&H); Pramod Malhotra v UOI, (2004) 3 SCC 415 [LNIND 2004 SC 1543] : AIR 2004 SC 3338",
[LNIND 2004 SC 1543] : (2004) 111 DLT 605 .,
"135. Lilly Kutty v Scrutiny Committee, AIR 2005 SC 4313 [LNIND 2005 SC 989] : (2005) Ibrahim v",
"State of Bihar, (2009) 8 SCC751 : (2009) 3 SCC 8 SCC 283 Also see- Bhaurao Dagdu Paralkar v",
"State of Maharashtra, AIR 2005 SC 3330 : (2005) 7 SCC 605 [LNIND 2005 SC 624] .",
"136. Gowrishankar v Joshi Amba Shankar Family Trust, (1996 (3) SCC 310) [LNIND 1996 SC 447]",
"For meaning of fraud See :Ram Chandra Singh v Savitri Devi, (2003 (8) SCC 319) Roshan Deen v",
"Preeti Lal, (2002 (1) SCC100) Ram Preeti Yadav v UP Board of High School and Intermediate",
"Education, (2003 (8) SCC 311) [LNIND 2003 SC 741] ,Ashok Leyland Ltd v State of TN, (2004 (3)",
SCC 1) [LNIND 2004 SC 1556] .,
THE INDIAN PENAL CODE,
CHAPTER II GENERAL EXPLANATIONS,
THIS Chapter is for the most part an elaborate interpretation clause. It is a key to the,
interpretation of the whole Code. The leading terms used are here defined and,
"explained and the meanings thus, announced are steadily adhered to throughout the",
subsequent chapters.,
"[s 26] ""Reason to believe."".",
"A person is said to have ""reason to believe"" a thing, if he has sufficient cause to",
believe that thing but not otherwise.,
COMMENT—,
"""Reason to believe"" is another facet of the state of mind. It is not the same thing as",
"""suspicion"" or ""doubt"" and mere seeing also cannot be equated to believing. It is a",
higher level of state of mind. It means that a person must have reason to believe if the,
"circumstances are such that a reasonable man would, by probable reasoning, conclude",
"or infer regarding the nature of the thing concerned.137. The word ""believe"" is a very",
"much stronger word than ""suspect"" and that it involves the necessity of showing that",
the circumstances were such that a reasonable man must have felt convinced in his,
mind that the note with which he was dealing was a forged one and that it was not,
sufficient to show that the accused was careless or he had reason to suspect or that he,
did not make sufficient enquiry to ascertain the fact.138. A person can be supposed to,
know something where there is a direct appeal to his senses. Suspicion or doubt,
"cannot be raised to the level of ""reason to believe.""139. ""Reason to believe"" in section 42",
of NDPS Act is a question of fact and depends upon the facts and circumstances of,
each case.140.,
"137. Joti Parshad v State of Haryana, AIR 1993 SC 1167 : 1993 Cr LJ 413 .",
"138. Hamid Ali v State, 1961 (2) Cr LJ 801 .",
"139. Prabha Malhotra v State, 2000 Cr LJ 549 (All), the Court was examining the conduct of",
doctors in reference to a patient and found no departure from the normal medical practices.,
"140. State of Punjab v Balbir Singh, AIR 1994 SC 1872 [LNIND 1994 SC 283] : (1994) 3 SCC 299",
"[LNIND 1994 SC 283] ; Noor Aga v State of Punjab, (2008) 16 SCC 417 [LNIND 2008 SC 1363] :",
JT 2008 (7) SC 409 [LNIND 2008 SC 1363] .,
THE INDIAN PENAL CODE,
CHAPTER II GENERAL EXPLANATIONS,
THIS Chapter is for the most part an elaborate interpretation clause. It is a key to the,
interpretation of the whole Code. The leading terms used are here defined and,
"explained and the meanings thus, announced are steadily adhered to throughout the",
subsequent chapters.,
"[s 27] Property in possession of wife, clerk or servant.",
"When property is in the possession of a person's wife, clerk or servant, on account of",
"that person, it is in that person's possession within the meaning of this Code.",
Explanation.— A person employed temporarily or on a particular occasion in the,
"capacity of a clerk or servant, is a clerk or servant within the meaning of this section.",
COMMENT—,
"Under this section property in the possession of a person's wife, clerk, or servant, is",
deemed to be in that person's possession. The possession must be conscious and,
intelligent possession and not merely the physical presence of the accused near the,
object.141.,
Corporeal property is in a person's possession when he has such power over it that he,
"can exclude others from it, and intends to exercise, if necessary, that power on behalf",
of himself or of some person for whom he is a trustee.,
A man's goods are in his possession not only while they are in his house or on his,
"premises, but also when they are in a place where he may usually send them (as when",
"horses and cattle feed on common land), or in a place where they may be lawfully",
"deposited by him, e.g., when he buries money or ornaments in his own land, or puts",
them in any other secret place of deposit.,
1. 'Wife'.—A permanent mistress may be regarded as a 'wife'. When a man furnishes a,
"house for his mistress' occupation, he may reasonably be presumed to be in",
possession of all articles therein which can reasonably be inferred to belong to him or,
to be in possession of his mistress on his behalf. But the inference must be,
inapplicable to articles of which the mistress is in possession illegally or contrary to the,
"provisions of law, especially when the article in question is such that he might well",
remain in ignorance that it was in his mistress' possession.142.,
Under this section the possession of the wife or servant must be shown to be on,
account of the accused otherwise he cannot be held liable for possession by his wife,
"or servant of any incriminatory thing even in his own house. In other words, it must be",
shown that the accused was in conscious possession of the thing in question through,
"his wife or servant. Moreover, it must also be shown that the possession of the",
"incriminatory thing amounted to an offence under the Indian Penal Code. Thus,",
possession of illicit liquor or an unlicenced pistol by the wife of the accused in his,
house would not make him liable for an offence under the Prohibition Act or the Arms,
Act. The mere fact that the accused was the head of the family would not go to show,
that the accused must have been in conscious possession of the incriminatory,
thing.143.,
"141. Wahib Basha, AIR 1961 Mad 162 [LNIND 1960 MAD 38] .",
"142. Banwari Lal, (1913) PR No. 20 of 1914; see also Narendra Nath Majumdar, AIR 1951 Cal",
"140 [LNIND 1951 CAL 14] ; Dharam Singh, 1961 Cr LJ 152 (Pun) where the wife alone was held",
responsible as she produced the key.,
"143. Chela Ram v State of Rajasthan, 1984 Cr LJ 17 .1143 (Raj); Narendra Nath Majumdar, AIR",
1951 Cal 140 [LNIND 1951 CAL 14] .,
THE INDIAN PENAL CODE,
CHAPTER II GENERAL EXPLANATIONS,
THIS Chapter is for the most part an elaborate interpretation clause. It is a key to the,
interpretation of the whole Code. The leading terms used are here defined and,
"explained and the meanings thus, announced are steadily adhered to throughout the",
subsequent chapters.,
"[s 28] ""Counterfeit."".",
"A person is said to ""counterfeit"" who causes one thing to resemble another thing,",
"intending by means of that resemblance to practise deception, or knowing it to be",
likely that deception will thereby be practised.,
144. [Explanation 1.—It is not essential to counterfeiting that the imitation should be,
exact.,
"Explanation 2.—When a person causes one thing to resemble another thing, and the",
"resemblance is such that a person might be deceived thereby, it shall be presumed,",
"until the contrary is proved, that the person so causing the one thing to resemble the",
other thing intended by means of that resemblance to practise deception or knew it to,
be likely that deception would thereby be practised.],
COMMENT—,
The aforesaid definition states that imitation is not required to be exact. It also says,
that it is not necessary that counterfeit note should be made with primary intention of,
its being looked as genuine. It is sufficient if resemblance to genuine currency note is,
"so caused that it is capable to being passed as such.145. In order to apply section 28,",
what the Court has to see is whether one thing is made to resemble another thing and,
"if that is so and if the resemblance is such that a person might be deceived by it, there",
will be a presumption of the necessary intention or knowledge to make the thing,
"counterfeit, unless the contrary is proved. The difference between the counterfeit and",
"the original is not therefore, limited to a difference existing only by reason of faulty",
"reproduction.146. The main ingredients of counterfeiting as laid down in section 28,",
"IPC, 1860, are:",
"(i) causing one thing to resemble another thing,",
"(ii) intending by means of such resemblance to practice deception, or",
(iii) knowing it to be likely that deception will thereby be practised.,
There can be counterfeiting even though the imitation is not exact and there are,
differences in detail between the original and the imitation so long as the resemblance,
is so close that deception may thereby be practised. And if the resemblance is such,
"that a person might be deceived thereby, it shall be presumed until the contrary is",
proved that the person causing one thing to resemble another thing was intending by,
means of that resemblance to practise deception or knew it to be likely that deception,
would thereby be practised.147.,
The word 'counterfeit' occurs in offences relating to coin provided in Chapter XII and,
offences relating to property marks and currency notes in Chapter XVIII.,
If coins are made to resemble genuine coins and the intention of the makers is merely,
"to use them in order to foist a false case upon their enemies, those coins do not come",
within the definition of counterfeit coins.148. The prosecution must establish that the,
coins manufactured resemble the original. It must also establish that there is an,
"intention to deceive, or the knowledge that deception would be caused by such",
resemblance.149.,
[s 28.1] Foreign Currency.—,
"The Supreme Court has observed that the word ""counterfeit"" has been defined in this",
provision in very wide terms and the same has been further supplemented by the,
Explanation which draws an adverse inference against the maker of the counterfeit,
"matter. There being no restriction as to the subject-matter of the offence, quite",
obviously the offence of imitating a foreign currency would be within the scope of the,
expression.150.,
"144. Subs. by Act 1 of 1889, section 9, for Explanation.",
"145. Narayan Maruti Waghmode v State of Maharashtra, 2011 Cr LJ 3318 (Bom).",
146. Liyakat Ali v State of Rajasthan 2010 Cr LJ 2450 (Raj); Golo Mandla Ram Rao v State of,
"Jharkhand, > 2003 Cr LJ 1738 (Jha); Local Government v Seth Motilal Jain, (1938) Nag 192.",
"147. State of UP v HM Ismail, 1960 Cr LJ 1017 : AIR 1960 SC 669 [LNIND 1960 SC 29] ; K Hasim",
"v State of TN, 2005 Cr LJ 143 : AIR 2005 SC 128 [LNIND 2004 SC 1142] : (2005) 1 SCC 237",
"[LNIND 2004 SC 1142] , exact reproduction is not necessary.",
"148. Velayudham, (1938) Mad 80.",
"149. Shahid Sultan Khan v State of Maharashtra, 2007 Cr LJ 568 (Bom).",
"150. State of Kerala v Mathai Verghese, (1986) 4 SCC 746 [LNIND 1986 SC 461] : AIR 1987 SC 33",
[LNIND 1986 SC 461] : 1987 Cr LJ 308 .,
THE INDIAN PENAL CODE,
CHAPTER II GENERAL EXPLANATIONS,
THIS Chapter is for the most part an elaborate interpretation clause. It is a key to the,
interpretation of the whole Code. The leading terms used are here defined and,
"explained and the meanings thus, announced are steadily adhered to throughout the",
subsequent chapters.,
"[s 29] ""Document."".",
"The word ""document"" denotes any matter expressed or described upon any substance",
"by means of letters, figures, or marks, or by more than one of those means, intended",
"to be used, or which may be used, as evidence of that matter.",
"Explanation 1.—It is immaterial by what means or upon what substance the letters,",
"figures or marks are formed, or whether the evidence is intended for, or may be used",
"in, a Court of Justice, or not.",
ILLUSTRATIONS,
"A writing expressing the terms of a contract, which may be used as evidence of the",
"contract, is a document.",
A cheque upon a banker is a document. A power-of-attorney is a document.,
"A map or plan which is intended to be used or which may be used as evidence, is a",
document. A writing containing directions or instructions is a document.,
"Explanation 2.—Whatever is expressed by means of letters, figures or marks as",
"explained by mercantile or other usage, shall be deemed to be expressed by such",
"letters, figures or marks within the meaning of this section, although the same may",
not be actually expressed.,
ILLUSTRATION,
A writes his name on the back of a bill of exchange payable to his order. The meaning,
"of the endorsement, as explained by mercantile usage, is that the bill is to be paid to",
"the holder. The endorsement is a document, and must be construed in the same",
"manner as if the words ""pay to the holder"" or words to that effect had been written over",
the signature.,
COMMENT—,
"An assessment order is certainly a 'document', under section 29, IPC, 1860.151. An",
"agreement in writing, which purported to be entered into between five persons, was",
signed by only two of them. It was held that it was a 'document' within the meaning of,
this section though it was not signed by all the parties thereto.152. Letters or marks,
imprinted on trees and intended to be used as evidence that the trees had been passed,
for removal by the Ranger of a forest are documents.153. Currency notes would be,
"included in the definition of ""documents.""154. A charge ticket for overseas calls which a",
telephone operator has to prepare for accounting purposes is a document.155.,
"151. Ishwarlal Girdharilal Parekh v State Of Maharashtra, AIR 1969 SC 40 [LNIND 1968 SC 143] :",
1969 Cr LJ 271 (SC).,
"152. Ramaswami Ayyar v State, (1917) 41 Mad 589. Boraiah v State, 2003 Cr LJ 1031 (Kant),",
post mortem report which was marked without objection was allowed to be read in evidence,
without its author being produced.,
"153. Krishtappa, (1925) 27 Bom LR 599 .The definition includes anything done by pen, by",
"engraving, by printing or otherwise, whereby, it is made on paper, parchment, wood or other",
"substance. Similar definitions of the word 'document' are found in Section 3, Evidence Act, and",
"also in Section 3 (16), General Clauses Act. L K Siddappa v Lalithamma 1954 Cr LJ 1235 (Mys).",
"154. Shyama Charan, AIR 1962 Tripura 50 .",
"155. RV Sharma, (1990) 2 All ER 602 (CA).",
THE INDIAN PENAL CODE,
CHAPTER II GENERAL EXPLANATIONS,
THIS Chapter is for the most part an elaborate interpretation clause. It is a key to the,
interpretation of the whole Code. The leading terms used are here defined and,
"explained and the meanings thus, announced are steadily adhered to throughout the",
subsequent chapters.,
"156.[s 29A] ""Electronic record.""",
"The words ""electronic record"" shall have the meaning assigned to them in clause (t) of",
"sub-section (1) of section 2 of the Information Technology Act, 2000.]",
COMMENT—,
This section has been inserted by the Information Technology Act 2000 (Act No. 21 of,
"2000), which came into force on 17 October, 2000. With the on-going electronic and",
"communicational developments, electronic commerce requires the use of electronic",
record. Section 29A simply refers to the definition of 'electronic record' as the meaning,
assigned to these words in clause (t) of sub-section (1) of section 2 of the Information,
Technology Act 2000. It reads thus;,
"""(t) ""electronic record"" means data, record or data generated, image or sound stored,",
"received or sent in an electronic form or micro film or computer generated microfiche;""",
"While giving meaning to the words ""electronic record"" and its definition under section",
"29A one has to resort to the meaning of the words ""computer"" and ""data"" as given in",
sections 2(1)(i) and 2(1)(o) of the Information Technology Act 2000. The words,
"""electronic form"" used in the definition of electronic record have further been defined in",
"section 2(1)(r) of the Information Technology Act, which reads thus,",
"""2(1)(r) ""electronic form"" with reference to informations, means any information",
"generated, sent, received or stored in media, magnetic, optical, computer memory,",
"micro film, computer generated microfiche or similar device.""",
"156. Ins. by Act 21 of 2000, section 91 and Sch. I (w.e.f. 17-10-2000).",
THE INDIAN PENAL CODE,
CHAPTER II GENERAL EXPLANATIONS,
THIS Chapter is for the most part an elaborate interpretation clause. It is a key to the,
interpretation of the whole Code. The leading terms used are here defined and,
"explained and the meanings thus, announced are steadily adhered to throughout the",
subsequent chapters.,
"156.[s 29A] ""Electronic record.""",
"The words ""electronic record"" shall have the meaning assigned to them in clause (t) of",
"sub-section (1) of section 2 of the Information Technology Act, 2000.]",
COMMENT—,
This section has been inserted by the Information Technology Act 2000 (Act No. 21 of,
"2000), which came into force on 17 October, 2000. With the on-going electronic and",
"communicational developments, electronic commerce requires the use of electronic",
record. Section 29A simply refers to the definition of 'electronic record' as the meaning,
assigned to these words in clause (t) of sub-section (1) of section 2 of the Information,
Technology Act 2000. It reads thus;,
"""(t) ""electronic record"" means data, record or data generated, image or sound stored,",
"received or sent in an electronic form or micro film or computer generated microfiche;""",
"While giving meaning to the words ""electronic record"" and its definition under section",
"29A one has to resort to the meaning of the words ""computer"" and ""data"" as given in",
sections 2(1)(i) and 2(1)(o) of the Information Technology Act 2000. The words,
"""electronic form"" used in the definition of electronic record have further been defined in",
"section 2(1)(r) of the Information Technology Act, which reads thus,",
"""2(1)(r) ""electronic form"" with reference to informations, means any information",
"generated, sent, received or stored in media, magnetic, optical, computer memory,",
"micro film, computer generated microfiche or similar device.""",
"156. Ins. by Act 21 of 2000, section 91 and Sch. I (w.e.f. 17-10-2000).",
THE INDIAN PENAL CODE,
CHAPTER II GENERAL EXPLANATIONS,
THIS Chapter is for the most part an elaborate interpretation clause. It is a key to the,
interpretation of the whole Code. The leading terms used are here defined and,
"explained and the meanings thus, announced are steadily adhered to throughout the",
subsequent chapters.,
"[s 30] ""Valuable security."".",
"The words ""valuable security"" denote a document which is, or purports to be, 1 a",
"document whereby any legal right is created, extended, transferred, restricted,",
"extinguished or released, or where by any person acknowledges that he lies under",
"legal liability, or has not a certain legal right.",
ILLUSTRATION,
A writes his name on the back of a bill of exchange. As the effect of this endorsement,
"is transfer the right to the bill to any person who may become the lawful holder of it, the",
"endorsement is a ""valuable security"".",
COMMENT—,
"The words ""valuable security"" also occurs in sections 329–331, 347, 348, 420, 467 and",
"471. Account books containing entries not signed by a party are not ""valuable",
"security.""157. A copy of a valuable security is not a valuable security.158. An 'order of",
assessment' is a 'valuable security'.159.,
"1. 'Which is, or purports to be'.—The use of the words ""which is, or purports to be""",
"indicates that a document which, upon certain evidence being given, may be held to be",
"invalid, but on the face of it creates, or purports to create, a right in immoveable",
"property, although a decree could not be passed upon the document, comes within the",
"purview of this section.160. The words ""purports to be"" are wide enough to include a",
document which is not in conformity with the provisions of the Registration Act. Such a,
document though not otherwise receivable in evidence would still be receivable in,
"evidence for the purpose of the Indian Penal Code.161. However, certificates which the",
accused had forged in order to get admission in a college could not be described as,
"""valuable security"" and as such their conviction under section 471 read with section",
"467 had to be changed to one under section 471 read with section 465, IPC, 1860.162.A",
lottery ticket is a valuable security.163.,
"157. Hari Prasad v State, (1955) 1 All 749 ; Moosa v State of Kerala, AIR 1963 Ker. 68 .",
"158. Gobinda Prasad v State, AIR 1962 Cal 174 [LNIND 1961 CAL 76] .",
"159. Ishwarlal Girdharilal Parekh v State Of Maharashtra, AIR 1969 SC 40 [LNIND 1968 SC 143] :",
1969 Cr LJ 271 (SC).,
"160. Ram Harakh Pathak, (1925) 48 All 140 .",
"161. Kalimuddin v State, 1977 Cr LJ NOC 261 (Cal).",
"162. BK Patil v State of Maharashtra, 1980 Cr LJ 1312 : AIR 1981 SC 80 ; Noor Mohamad v State",
"ofMaharashtra, 1980 Cr LJ 1345 AIR 1981 SC 297 ;.",
"163. Farzeen Sulthana v Government of Kerala, 2012 (1) KLT 309 ; Chacko v State of Kerala, 1970",
"KLT358; relied on Central Government of India v Krishnaji Parvetesh Kulkarni, AIR 2006 SC 1744",
[LNIND 2006 SC 253] : (2006) 4 SCC 275 [LNIND 2006 SC 253] .,
THE INDIAN PENAL CODE,
CHAPTER II GENERAL EXPLANATIONS,
THIS Chapter is for the most part an elaborate interpretation clause. It is a key to the,
interpretation of the whole Code. The leading terms used are here defined and,
"explained and the meanings thus, announced are steadily adhered to throughout the",
subsequent chapters.,
"[s 31] ""A will"".",
"The words ""a will"" denote any testamentary document.",
COMMENT—,
'Will' is the legal declaration of the intention of a testator with respect to his property,
which he desires to be carried into effect after his death.164.,
"164. The Indian Succession Act (XXXIX of 1925), section 2(h).",
THE INDIAN PENAL CODE,
CHAPTER II GENERAL EXPLANATIONS,
THIS Chapter is for the most part an elaborate interpretation clause. It is a key to the,
interpretation of the whole Code. The leading terms used are here defined and,
"explained and the meanings thus, announced are steadily adhered to throughout the",
subsequent chapters.,
[s 32] Words referring to acts include illegal omissions.,
"In every part of this Code, except where a contrary intention appears from the context,",
words which refer to acts 1 done extend also to illegal omissions. 2,
COMMENT—,
This section puts an illegal omission on the same footing as a positive act.,
1. 'Acts'.—An 'act' generally means something voluntarily done by a person. 'Act' is a,
"determination of the will, producing an effect in the sensible world. This word includes",
"writing and speaking, or, in short, any external manifestation. In the Code it is not",
"confined to its ordinary meaning of positive conduct of doing something, but includes",
also illegal omissions.,
2. 'Omissions'.—Liability for an omission requires a legal duty to act; a moral duty to act,
is not sufficient. A duty arises from the former when an offence is defined in terms of,
omission. This is the situation where the legislature has made it an offence. A legal,
duty to act may also be created by a provision of either criminal or civil separate from,
the offence charged. Since there is no moral difference between (i) a positive act and,
"(ii) an omission when a duty is established, it is to be borne in mind that cases of",
"omissions, the liability should be exceptional and needs to be adequately justified in",
"each instance. Secondly, when it is imposed this should be done by clear statutory",
language. Verbs primarily denoting (and forbidding) active conduct should not be,
construed to include omissions except when the statute contains a genuine implication,
to this effect.165.,
"An 'act' generally means something voluntarily done by a person, but in IPC, 1860 the",
term 'act' is not confined to its ordinary meaning of positive conduct of doing,
"something but includes also illegal omission. The effect of sections 32 and 33, IPC,",
1860 taken together is that the term 'act' comprises one or more 'acts' or one or more,
"illegal omissions. The Code (IPC, 1860) makes punishable omissions which have",
"caused, which have been intended to cause or which have been known to be likely to",
cause certain evil effect in the same manner as it punishes acts provided they were,
"illegal and when the law imposes on a person a duty to act, his illegal omission to act",
renders (him) in liable to punishment.166.,
[s 32.1] Penalty for omission.—,
Maximum penalties applied to active wrongdoing should not automatically be,
transferred to corresponding omissions; penalties for omissions should be re-thought,
"in each case. Indeed, the Indian Penal Code, 1860 does include explicitly the liability",
due to omissions. And even Indian courts have affirmed so.167.,
"165. Dr PB Desai v State of Maharashtra, 2013 (11) Scale 429 [LNIND 2013 SC 815] .",
166. Raj Karan Singh v State of UP 2000 Cr LJ 555 (All).,
"167. Dr PB Desai v State of Maharashtra, 2013 (11) Scale 429 [LNIND 2013 SC 815] .",
THE INDIAN PENAL CODE,
CHAPTER II GENERAL EXPLANATIONS,
THIS Chapter is for the most part an elaborate interpretation clause. It is a key to the,
interpretation of the whole Code. The leading terms used are here defined and,
"explained and the meanings thus, announced are steadily adhered to throughout the",
subsequent chapters.,
"[s 33] ""Act"" ""Omission"";.",
"The word ""act"" denotes as well a series of acts as a single act: the word ""omission""",
denotes as well a series of omissions as a single omission.,
COMMENT—,
"An omission is sometimes called a negative act, but this seems dangerous practice, for",
it too easily permits an omission to be substituted for an act without requiring the,
special requirement for omission liability such as legal duty and the physical capacity,
to perform the act. Criminal liability for an omission is also well accepted where the,
actor has a legal duty and the capacity to act. It is said that this rather fundamental,
exception to the act requirement is permitted because an actor's failure to perform a,
"legal duty of which he is capable, satisfies the purposes of the act requirement or at",
least satisfies them as well as an act does. Specifically these two special requirements,
for omission liability help to exclude from liability cases of fantasizing and irresolute,
"intentions, important purposes of the act requirement.168. The effect of section 32 and",
this section taken together is that the term 'act' comprises one or more acts or one or,
"more illegal omissions. The word 'act' does not mean only any particular, specific,",
"instantaneous act of a person, but denotes, as well, a series of acts.169.",
"168. Dr PB Desai v State of Maharashtra, 2013 (11) Scale 429 [LNIND 2013 SC 815] .",
"169. Om Parkash v State Of Punjab, AIR 1961 SC 1782 [LNIND 1961 SC 201] : 1961 (2) Cr LJ 848",
.,
THE INDIAN PENAL CODE,
CHAPTER II GENERAL EXPLANATIONS,
THIS Chapter is for the most part an elaborate interpretation clause. It is a key to the,
interpretation of the whole Code. The leading terms used are here defined and,
"explained and the meanings thus, announced are steadily adhered to throughout the",
subsequent chapters.,
170.[[s 34] Acts done by several persons in furtherance of common intention.,
When a criminal act is done by several persons in furtherance of the common,
"intention 1 of all, each of such persons is liable for that act in the same manner as if it",
were done by him alone.],
COMMENT—,
"Introduction.—Ordinarily, no man can be held responsible for an independent act and",
"wrong committed by another. However, section 34 of the IPC, 1860 makes an exception",
to this principle. It lays down a principle of joint liability in the doing of a criminal act.,
"The essence of that liability is to be found in the existence of common intention,",
animating the accused leading to the doing of a criminal act in furtherance of such,
"intention. It deals with the doing of separate acts, similar or adverse by several",
"persons, if all are done in furtherance of common intention. In such situation, each",
person is liable for the result of that as if he had done that act himself.171. The soul of,
"section 34, IPC, 1860 is the joint liability in doing a criminal act.172.",
[s 34.1] History.—,
"Section 34 IPC, 1860 is part of the original Code of 1860 as drafted by Lord Macaulay.",
"The original section as it stood was ""When a criminal act is done by several persons,",
each of such persons is liable for that act in the same manner as if the act was done by,
"him alone."" However, on account of certain observations made by Sir Barnes Peacock,",
"CJ, in Queen v Gora Chand Gope,173. it was necessary to bring about a change in the",
"wordings of the section. Accordingly, in the year 1870 an amendment was brought",
"which introduced the following words after ""when a criminal act is done by several",
"persons..."" ""…in furtherance of the common intention..."". After this change, the section",
has not been changed or amended ever.,
[s 34.2] Object.—,
The provision is intended to meet a case in which it may be difficult to distinguish,
between acts of individual members of a party who act in furtherance of the common,
intention of all or to prove exactly what part was taken by each of them. The true,
"contents of the section are that if two or more persons intentionally do an act jointly,",
the position in law is just the same as if each of them has done it individually by,
"himself. As observed in Ashok Kumar v State of Punjab,174. the existence of a common",
intention amongst the participants in a crime is the essential element for application of,
this section. It is not necessary that the acts of the several persons charged with,
commission of an offence jointly must be the same or identically similar. The acts may,
"be different in character, but must have been actuated by one and the same common",
"intention in order to attract the provision.175. Barendra Kumar Ghosh v King Emperor,176.",
stated the true purport of section 34 as:,
The words of s.34 are not to be eviscerated by reading them in this exceedingly limited,
"sense. By s.33 a criminal act in s.34 includes a series of acts and, further, 'act' includes",
"omission to act, for example, an omission to interfere in order to prevent a murder being",
"done before one's very eyes. By s.37, when any offence is committed by means of several",
acts whoever intentionally cooperates in the commission of that offence by doing any one,
"of those acts, either singly or jointly with any other person, commits that offence. Even if the",
"appellant did nothing as he stood outside the door, it is to be remembered that in crimes as",
in other things 'they also serve who only stand and wait'.177.,
[s 34.3] Principle.—,
This section is only a rule of evidence and does not create a substantive offence.,
"Section 34 IPC, 1860 lays down the principle of constructive liability. The essence of",
"section 34 IPC, 1860 is a simultaneous consensus of the minds of the persons",
"participating in criminal action to bring about a particular result. Section 34 IPC, 1860",
stipulates that the act must have been done in furtherance of the common intention. In,
"fact, the section is intended to cover a case where a number of persons act together",
and on the facts of the case it is not possible for the prosecution to prove as to which,
of the persons who acted together actually committed the crime. Little or no distinction,
exists between a charge for an offence under a particular section and a charge under,
"that section read with section 34.178. Therefore, section 34, IPC, 1860, would apply",
even if no charge is framed under that section provided of course from the evidence it,
becomes clear that there was pre-arranged plan to achieve the commonly intended,
"object.179. Thus, where six persons were charged under sections 148, 302/149 and",
"307/149, IPC, 1860, but two were acquitted, the remaining four accused could be",
convicted on the charges of murder and attempt to murder with the aid of section 34 of,
the Penal Code.180. This section really means that if two or more persons intentionally,
"do a thing jointly, it is just the same as if each of them had done it individually.181. If the",
criminal act was a fresh and independent act springing wholly from the mind of the,
"doer, the others are not liable merely because when it was done they were intending to",
be partakers with the doer in a different criminal act.,
"[s 34.4] Scope, ambit and applicability.—",
Section 34 of the Indian Penal Code recognises the principle of vicarious liability in,
criminal jurisprudence. The said principle enshrined under Section 34 of the Code,
would be attracted only if one or more than one accused person act conjointly in the,
commission of offence with others. It is not necessary that all such persons should be,
named and identified before the liability under Section 34 of the Indian Penal Code can,
be invoked. So long as the evidence brought by the prosecution would disclose that,
one or more accused persons had acted in concert with other persons not named or,
"identified, the liability under Section 34 of the Code would still be attracted. Once the",
"other accused stands acquitted in absence of said evidence, the vicarious liability",
under section 34 of the Code would not be attracted so as to hold the accused liable,
"for the offence with the aid of Section 34 of the Code. However, the accused would still",
be liable for the offence if the injury or injuries leading to offence can be attributed to,
him.182. A bare reading of this section shows that the section could be dissected as,
follows:,
(a) Criminal act is done by several persons;,
(b) Such act is done in furtherance of the common intention of all; and,
(c) Each of such persons is liable for that act in the same manner as if it were done,
by him alone.,
"(d) But, it is not necessary that all such persons should be named and identified",
before the liability under Section 34 of the Indian Penal Code can be invoked.183.,
"In other words, these three ingredients would guide the court in determining whether an",
accused is liable to be convicted with the aid of section 34. While first two are the acts,
"which are attributable and have to be proved as actions of the accused, the third is the",
"consequence. Once the criminal act and common intention are proved, then by fiction",
"of law, criminal liability of having done that act by each person individually would arise.",
"The criminal act, according to section 34 IPC, 1860 must be done by several persons.",
"The emphasis in this part of the section is on the word ""done"".184. The section does not",
envisage the separate act by all the accused persons for becoming responsible for the,
"ultimate criminal act. If such an interpretation is accepted, the purpose of section 34",
"shall be rendered infructuous.185. Under section 34 of the Indian Penal Code, a pre-",
concert in the sense of a distinct previous plan is not necessary to be proved.186. It is a,
well settled law that mere presence or association with other members is not per se,
sufficient to hold each of them criminally liable for the offences committed by the other,
"members, unless there is sufficient evidence on record to show that one such member",
also intends to or knows the likelihood of commission of such an offending act.187.,
[s 34.5] Three leading Cases.—,
"The case of Barendra Kumar Ghosh v King Emperor,188. is a locus classicus and has",
been followed by number of High Courts and the Supreme Court in a large number of,
"cases. In this case, the Judicial Committee dealt with the scope of section 34 dealing",
"with the acts done in furtherance of the common intention, making all equally liable for",
the results of all the acts of others. It was observed that section 34 when it speaks of a,
"criminal act done by several persons in furtherance of the common intention of all, has",
"regard not to the offence as a whole, but to the criminal act, that is to say, the totality of",
the series of acts which result in the offence. In the case of a person assaulted by,
"many accused, the criminal act is the offence which finally results, though the",
achievement of that criminal act may be the result of the action of several persons.,
"In another celebrated case Mehbub Shah v King-Emperor,189. the court held that:",
Section 34 lays down a principle of joint liability in the doing of a criminal act. The section,
"does not say ""the common intentions of all,"" nor does it say ""an intention common to all.""",
"Under the section, the essence of that liability is to be found in the existence of a common",
intention animating the accused leading to the doing of a criminal act in furtherance of such,
"intention. To invoke the aid of s.34 successfully, it must be shown that the criminal act",
complained against was done by one of the accused persons in the furtherance of the,
"common intention of all; if this is shown, then liability for the crime may be imposed on any",
one of the persons in the same manner as if the act were done by him alone. This being the,
"principle, it is clear to their Lordships that common intention within the meaning of the",
"section implies a pre-arranged plan, and to convict the accused of an offence applying the",
section it should be proved that the criminal act was done in concert pursuant to the pre-,
arranged plan.,
Approving the judgments of the Privy Council in Barendra Kumar Ghosh (Barendra,
"Kumar Ghosh v King Emperor,190. and Mahbub Shah cases191 a three-Judge Bench of",
"Supreme Court in Pandurang v State of Hyderabad,192. held that to attract the",
applicability of section 34 of the Code the prosecution is under an obligation to,
establish that there existed a common intention which requires a pre-arranged plan,
"because before a man can be vicariously convicted for the criminal act of another, the",
act must have been done in furtherance of the common intention of all. The Court had,
in mind the ultimate act done in furtherance of the common intention,
[s 34.6] Common intention and mens rea.—,
"Under section 34, every individual offender is associated with the criminal act which",
constitutes the offence both physically as well as mentally i.e. he is a participant not,
only in what has been described as a common act but also what is termed as the,
"common intention and, therefore, in both these respects his individual role is put into",
serious jeopardy although this individual role might be a part of a common scheme in,
which others have also joined him and played a role that is similar or different. But,
"referring to the common intention, it needs to be clarified that the courts must keep in",
"mind the fine distinction between ""common intention"" on the one hand and mens rea as",
understood in criminal jurisprudence on the other. Common intention is not alike or,
identical to mens rea. The latter may be coincidental with or collateral to the former but,
they are distinct and different.193.,
[s 34.7] Participation.—,
Participation of several persons in some action with the common intention of,
"committing a crime is an essential ingredient; once such participation is established,",
"section 34 is at once attracted.194. Thus, the dominant feature of section 34 is the",
element of intention and participation in action. This participation need not in all cases,
be by physical presence.195. The Supreme Court has held that it is the essence of the,
section that the person must be physically present at the actual commission of the,
"crime. He need not be present in the actual room; he can, for instance, stand guard by a",
gate outside ready to warn his companions about any approach of danger or wait in a,
"car on a nearby road ready to facilitate their escape, but he must be physically present",
at the scene of the occurrence and must actually participate in the commission of the,
offence in some way or other at the time crime is actually being committed.196.,
The Supreme Court has emphasised that proof of participation by acceptable evidence,
may in circumstances be a clue to the common intention and that it would not be fatal,
to the prosecution case that the culprits had no community of interests.197.,
"Sometimes, however, absence of actual participation may serve an important purpose",
"as it happened, for example, where in a love triangle the paramour killed the woman's",
husband and she remained sitting with the dead body inside the house without opening,
"the door. The main accused having been acquitted, the Supreme Court held that the",
woman alone could not be convicted under section 302 read with section 34,
particularly in view of the fact that the nature of the injuries (gandasa blows with a,
heavy hand) made it explicit that they were the handiwork of masculine power and not,
that of feminine hands.198. It is also necessary to remember that mere presence of the,
offender at the scene of murder without any participation to facilitate the offence is not,
enough.199. By merely accompanying the accused one does not become liable for the,
"crime committed by the accused within the meaning of section 34, IPC, 1860.200. The",
degree of participation is also an important factor.201. The court restated the two,
ingredients for application of the section which are:,
(i),
"common intention to commit a crime, and",
(ii) participation by all the accused in the act or acts in furtherance of the common,
intention. These two things establish their joint liability.202.,
Where one of the accused persons focussed light on the victim with a torch so as to,
"enable others to assault him, otherwise it is a dark night. The court said that his",
conduct prior and subsequent to the occurrence clearly showed that he shared the,
"common intention so far as the assault on the deceased was concerned. Hence, he",
was rightly roped in under section 34.203. If participation is proved and common,
"intention is absent, section 34 cannot be invoked.204. The co-accused was standing",
"outside the house, where the incident took place, while the others committed the",
murder. There is no evidence of his having played any part in the crime. He did not even,
act as a guard; he did not prevent the witness from entering the house. There is no,
evidence of the formation or sharing of any common intention with the other accused.,
"No weapon was seized from him, nor was any property connected with the crime,",
"confiscated from him. It was therefore, held that, it was not safe to convict the co-",
accused of the offence of murder with the aid of sub-sections 34 and 120(B).205.,
[s 34.8] Physical Presence not sine qua non.—,
Physical presence at the very spot is not always a necessary ingredient to attract the,
"action. The Supreme Court decision in Shreekantiah Ramayya v State of Bombay,206. is",
"the authority for the aforesaid proposition. Vivian Bose, J, speaking for the Bench of",
three Judges stated thus:,
"He need not be present in the actual room; he can, for instance, stand guard by a gate",
outside ready to warn his companions about any approach of danger or wait in a car on a,
nearby road ready to facilitate their escape.,
What is required is his actual participation in the commission of the offence in some,
way or other at the time when the crime is actually being committed. The participation,
"need not in all cases be by physical presence. In offence involving physical violence,",
"normally presence at the scene of offence may be necessary, but such is not the case",
in respect of other offences when the offence consists of diverse acts which may be,
done at different times and places. The physical presence at the scene of offence of,
the offender sough to be rendered liable under this section is not one of the conditions,
of its applicability in every case.207. Even the concept of presence of the co-accused at,
"the scene is not a necessary requirement to attract section 34 of the IPC, 1860, e.g., the",
co-accused can remain a little away and supply weapons to the participating accused,
either by throwing or by catapulting them so that the participating accused can inflict,
"injuries on the targeted person. There may be other provisions in the IPC, 1860 like sub-",
sections 120B or 109 which could be invoked then to catch such non-participating,
"accused. Thus, participation in the crime in furtherance of the common intention is sine",
"qua non for section 34 IPC, 1860. Exhortation to other accused, even guarding the",
"scene etc. would amount to participation. Of course, when the allegation against an",
accused is that he participated in the crime by oral exhortation or by guarding the,
scene the court has to evaluate the evidence very carefully for deciding whether that,
person had really done any such act.208.,
"The absence of any overt act of assault, exhortation or possession of weapon cannot",
be singularly determinative of absence of common intention.209.,
[s 34.9] In furtherance of common intention.—,
The Supreme Court referred to the Oxford English Dictionary where the word,
"""furtherance"" is defined as an ""action of helping forward."" Russell, in his book on",
Criminal Law adopted this definition and said:,
It indicates some kind of aid or assistance proceeding an effect in future and that any act,
may be regarded as done in furtherance of the ultimate felony if it is a step intentionally,
"taken for the purpose of effecting the felony."" The Supreme Court has also construed the",
"word ""furtherance"" as ""advancement or promotion.210.",
1. 'Common intention'.—The phrase 'common intention' means a pre-oriented plan and,
acting in pursuance to the plan. The common intention to give effect to a particular act,
may even develop at the spur of moment between a number of persons with reference,
to the facts of a given case.211. In Amrik Singh's case it has further been held that,
though common intention may develop in course of the fight but there must be clear,
and unimpeachable evidence to justify that inference.212. Before a Court can convict a,
"person for any offence read with section 34, it should come to a definite conclusion",
"that the said person had a prior concert with one or more other persons, named or",
"unnamed, for committing the said offence.213. Where the act of murder by the main",
accused was facilitated by two others by catching hold of the victim but without,
"knowing nor having the intention of causing death, it was held that the only common",
intention that could be inferred was that of causing grievous hurt.214. Where the,
accused had inflicted lathi blows causing injuries only on the eyewitness and not on the,
"deceased, he could not be said to have shared the common intention of committing",
murder of the deceased. He was acquitted for the charge of murder and was convicted,
under section 325.215.,
Common intention does not mean similar intention of several persons. To constitute,
common intention it is necessary that the intention of each one of them be known to,
the rest of them and shared by them.216.,
What to speak of similar intention even same intention without sharing each other's,
intention is not enough for this section.217. In a case like this each will be liable for,
whatever injury he caused but none could be vicariously convicted for the act of any of,
"the others.218. In fine, if common intention cannot be inferred from the evidence of",
"facts and circumstances of the case, section 34, IPC, 1860, cannot be invoked.219. A",
party of farmers was cutting their crop. The deceased took away a portion of the,
harvested crop. That night when he was returning from a barat 16 persons waited for,
him on the way. They came towards him and the convict who was carrying a knife gave,
him a stab wound on the neck which proved fatal. The others did not know that he had,
"a knife and all of them being with bare hands, it could not be said that they had the",
common intention of causing death. They could as well have thought that after,
surrounding the accused he would be called upon to return or pay for the harvest taken,
away by him.220.A person gifted his land to one of his grandsons. His other son along,
"with his wife fully armed, the man with a lathi and the woman with a gandasa came to",
protest. The man lost control and both grandson and his father intervened to save the,
situation but they received lathi blows and died. The woman struck only her brother-in-,
law with the gandasa causing a non-fatal injury. Her husband was convicted for murder,
but her punishment was reduced to causing grievous hurt because it appeared that the,
whole thing was a spot happening and not a planned affair.221.,
"Where the genesis of the verbal wrangle between the neighbours was not known, but it",
"appeared to have arisen suddenly, there being no chance for common intention to be",
"formulated, each attacker was held to be punishable for his individual acts.222.",
Where common intention was established the mere fact that one of the culprits,
distanced himself from the scene could not absolve him from liability.223.,
It is not necessary for bringing a case within the scope of section 34 to find as to who,
in fact inflicted the fatal blow. A conviction under the section read with the relevant,
substantive provision can be made when the ingredients required by the section are,
satisfied and it is not necessary to mention the section number in the judgment.224.,
Death of two persons was caused by unprovoked firing by appellants who are police,
officials and grievous gunshot injuries to another person. It was not necessary to,
assign a specific role to each individual appellant as the firing at the Car was,
undoubtedly with a clear intent to annihilate those in it and was resorted to in,
furtherance of common intention of all the appellants. The accused were liable to,
"conviction under section 302/34 IPC, 1860.225. The acts of all the accused need not be",
the same or identically similar. All that is necessary is that they all must be actuated by,
the one and the same common intention. The fact that two of them caused injuries at,
the back of their victim and the injury at the head which proved to be fatal was caused,
"by the third person, the two co-accused could not claim to be absolved of liability for",
murder.226.,
It is not necessary for bringing about the conviction of the co-accused to show that he,
also committed an overt act for the achievement of their object. The absence of any,
overt act or possession of weapon cannot be singularly determinative of absence of,
common intention. If common intention by meeting of minds is established in the facts,
and circumstances of the case there need not be an overt act or possession of weapon,
"required, to establish common intention.227.",
The accused caught hold of the victim and exhorted the main accused to strike him. On,
such exhortation the main accused inflicted a Kirpan wound. The victim died. It was,
held that the instigation was only to strike. It could not be said that the accused shared,
the intention of the main accused to kill. The conviction was altered from under,
sections 202/34 to one under section 324.228. The victim woman was murdered by her,
father-in-law and brother-in-law. The third person helped them to conceal the dead body,
to screen them. The conviction of the two accused for murder was upheld but that of,
the third one only for concealment of evidence under sections 201/34.229.,
[s 34.10] Common Intention: How Proved.—,
The common intention can be inferred from the circumstances of the case and that the,
intention can be gathered from the circumstances as they arise even during an,
incident.230. Common intention is a state of mind. It is not possible to read a person's,
mind. There can hardly be direct evidence of common intention. The existence or non-,
existence of a common intention amongst the accused has to be deciphered,
cumulatively from their conduct and behaviour in the facts and circumstances of each,
"case. Events prior to the occurrence as also after, and during the occurrence, are all",
relevant to deduce if there existed any common intention. There can be no straight,
jacket formula.231. The Court has to examine the prosecution evidence in regard to,
"application of section 34 cumulatively and if the ingredients are satisfied, the",
consequences must follow. It is difficult to state any hard and fast rule which can be,
applied universally to all cases. It will always depend on the facts and circumstances of,
the given case whether the person involved in the commission of the crime with a,
common intention can be held guilty of the main offence committed by them,
"together.232. Courts, in most cases, have to infer the intention from the act(s) or",
"conduct of the accused or other relevant circumstances of the case. However, an",
inference as to the common intention shall not be readily drawn; the criminal liability,
can arise only when such inference can be drawn with a certain degree of,
assurance.233. In most cases it has to be inferred from the act or conduct or other,
relevant circumstances of the case in hand.234. This inference can be gathered by the,
"manner in which the accused arrived on the scene and mounted the attack, the",
determination and concert with which the beating was given or the injuries caused by,
"one or some of them, the acts done by others to assist those causing the injuries, the",
"concerted conduct subsequent to the commission of the offence, for instance all of",
them left the scene of the incident together and other acts which all or some may have,
"done as would help in determining the common intention. In other words, the totality of",
the circumstances must be taken into consideration in arriving at the conclusion,
whether the accused had a common intention to commit an offence of which they,
could be convicted.235. Manner of attack shows the common intention of accused.236.,
The Supreme Court has reiterated:,
"We reiterate that for common intention, there could rarely be direct evidence. The ultimate",
"decision, at any rate would invariably depend upon the inference deducible from the",
circumstances of each case. It is settled law that the common intention or the intention of,
the individuals concerned in furtherance of the common intention could be proved either,
from direct evidence or by inference from the acts or attending circumstances of the case,
and conduct of the parties.237.,
[s 34.11] Complaint.—,
"In order to attract section 34 of the IPC, 1860, the complaint must, prima facie, reflect a",
common prior concert or planning amongst all the accused.238.,
[s 34.12] Effect of no charge under section 34.—,
Even if section 34 has not been included in a charge framed for the offence under,
"section 302 IPC, 1860 against the accused, a conviction for the offence under section",
302 with the aid of section 34 is not bad as no prejudice would be caused to him.239.,
Where the appellants caused injuries not enough to cause the death but the same were,
"caused by another, in the absence of a charge under section 34, they were found to be",
"guilty under section 326 of IPC, 1860.240.",
"Sections 34, 114 and 149 of the IPC, 1860 provide for criminal liability viewed from",
"different angles as regards actual participants, accessories and men actuated by a",
common object or a common intention; and as explained by five Judge Constitution,
"Bench of in Willie Slavey v The State of MP,241. the charge is a rolled-up one involving",
the direct liability and the constructive liability without specifying who are directly liable,
and who are sought to be made constructively liable.242. But before a court can convict,
"a person under section 302, read with section 34, of the Indian Penal Code, it should",
come to a definite conclusion that the said person had a prior concert with one or more,
"other persons, named or unnamed, for committing the said offence. A few illustrations",
will bring out the impact of section 34 on different situations.,
"(1) A, B, C and D are charged under section 302, read with section 34, of the Indian",
"Penal Code, for committing the murder of E. The evidence is directed to establish that",
the said four persons have taken part in the murder.,
"(2) A, B, C and D and unnamed others are charged under the said sections. But",
"evidence is adduced to prove that the said persons, along with others, named or",
"unnamed, participated jointly in the commission of that offence.",
"(3) A, B, C and D are charged under the said sections. But the evidence is directed to",
"prove that A, B, C and D, along with 3 others, have jointly committed the offence. As",
"regards the third illustration, a Court is certainly entitled to come to the conclusion that",
"one of the named accused is guilty of murder under section 302, read with section 34,",
"of the Indian Penal Code, though the other three named accused are acquitted, if it",
"accepts the evidence that the said accused acted in concert along with persons,",
"named or unnamed, other than those acquitted, in the commission of the offence. In",
the second illustration the Court can come to the same conclusion and convict one of,
the named accused if it is satisfied that no prejudice has been caused to the accused,
by the defect in the charge. But in the first illustration the Court certainly can convict,
two or more of the named accused if it accepts the evidence that they acted conjointly,
in committing the offence. But what is the position if the Court acquits 3 of the 4,
accused either because it rejects the prosecution evidence or because it gives the,
"benefit of doubt to the said accused? Can it hold, in the absence of a charge as well as",
"evidence, that though the three accused are acquitted, some other unidentified persons",
"acted conjointly along with one of the named persons? If the Court could do so, it",
would be making out a new case for the prosecution: it would be deciding contrary to,
the evidence adduced in the case. A Court cannot obviously make out a case for the,
prosecution which is not disclosed either in the charge or in regard to which there is no,
basis in the evidence. There must be some foundation in the evidence that persons,
other than those named have taken part in the commission of the offence and if there,
is such a basis the case will be covered by the third illustration.243. Absence of charge,
under section 34 is not fatal by itself unless prejudice to the accused is shown.244.,
[s 34.13] Alternative Charge.—,
"The trial Court framed charges under sections 302/307 r/w 120B IPC, 1860 and an",
"alternative charge under sections 302/307 r/w section 34 IPC, 1860 without opining on",
"the alternative charge, convicted the accused under sections 302/307 r/w 120B, The",
contention that accused is deemed to be acquitted for charges under sections,
"302/307/34 IPC, 1860 of the charge of common intention of committing murder and",
"there was no appeal by the State against the deemed acquittal against that charge, it",
was not open to the High Court to alter or modify the conviction under sections,
"302/307/34 IPC, 1860, repelled by holding that charges had indeed been framed in the",
alternative and for cognate offences having similar ingredients as the main allegation,
of murder.245.,
"[s 34.14] Distinction between sections 34 and 149, IPC, 1860.—",
Though both these sections relate to the doctrine of vicarious liability and sometimes,
overlap each other there are substantial points of difference between the two. They are,
as under:—,
"(i) Section 34 does not by itself create any specific offence, whereas section 149,",
"IPC, 1860, does so (see discussion under sub-para ""principle"" ante).",
"(ii) Some active participation, especially in a crime involving physical violence is",
"necessary under section 34 but section 149, IPC, 1860, does not require it and",
the liability arises by reason of mere membership of the unlawful assembly with,
a common object and there may be no active participation at all in the,
preparation and commission of the crime.,
"(iii) Section 34 speaks of common intention but section 149, IPC, 1860,",
contemplates common object which is undoubtedly wider in its scope and,
amplitude than intention. If the offence committed by a member of an unlawful,
assembly is in prosecution of the common object of the unlawful assembly or,
such as the members of that assembly knew to be likely to be committed in,
"prosecution of the common object, all other members of the unlawful assembly",
"would be guilty of that offence under section 149, IPC, 1860, although they may",
not have intended to do it or participated in the actual commission of that,
offence.246.,
(iv) Section 34 does not fix a minimum number of persons who must share the,
"common intention, whereas section 149, IPC, 1860, requires that there must be",
at least five persons who must have the same common object (see also,
"discussion under sub-head ""Sections 34 and 149"" under section 149, IPC, 1860,",
infra).247.,
[s 34.15] Effect of conviction or acquittal of one or more or others.—,
Several persons involved in a criminal adventure may be guilty of different offences,
depending upon their respective acts. If the act is done in furtherance of their common,
"intention, all of them become equally liable for the act. Similarly, if they are members of",
"an unlawful assembly, an act done by any one in prosecution of the common object or",
"any act which the members knew could happen in such prosecution, every member",
would be liable for the act. If any one of them happens to be wrongly acquitted and no,
"appeal has been filed against it, it would not ipso facto impede the conviction of others.",
"Likewise, the conviction of any one or more them does not automatically result in the",
conviction of others.248.,
[s 34.16] Substitution of conviction from section 149 to section 34.—,
"Following some earlier rulings,249. the Supreme Court has stated the law in the",
following terms:250.,
It is true that there was no charge under s. 302 read with s. 34... but the facts of the case,
are such that the accused could have been charged alternatively either under s. 302 read,
"with s. 149 or under s. 302 read with s. 34 and one of the accused having been acquitted,",
the conviction under s. 302/149 can be substituted with one under s. 302/34. No prejudice,
is likely to be caused to the accused whose appeal is being dismissed.251.,
[s 34.17] Robbery.—,
Provision under section 397 inevitably negates the use of the principles of constructive,
or vicarious liability engrafted under section 34. The sentence for offence under section,
"397 of the IPC, 1860 cannot be awarded to those of the members of the group of",
"dacoits who did not use any deadly weapon. A plain reading of section 397 of the IPC,",
1860 would make it clear that such guilt can be attributed only to that offender who,
uses any deadly weapon or causes grievous hurt to any person during course of the,
commission of the robbery. The provision postulates that only the individual act of,
"accused will be relevant to attract section 397 of the IPC, 1860.252. In a sudden quarrel",
"over payment, person sitting inside the car pulled the petrol pump attendant into the",
car and drove away. The occupants of the car escaped punishment. It was held that the,
driver alone could not be held guilty of the offence of robbery and abduction with the,
aid of section 34.253. In a serial highway robbery and murder in which same persons,
"were involved, it was found as a fact that the self-same two persons were seen by a",
witness together in a different town before the occurrence. One of their victims,
survived and he also testified that he saw both of them together. Both of them were,
held to be guilty of successive crimes and convicted for murder with the aid of section,
34 without any need of knowing who played what part.254.,
[s 34.18] Mob action.—,
A mob of 200 persons armed with different weapons came to the field with the object,
of preventing the prosecution party from carrying on transplantation operations. Some,
of them caused death of a person at the spur of the moment for some spot reason.,
The whole mob could not be convicted for it.255 A mob chased the members of the,
rival community up to their locality. A part of the mob started burning their houses and,
the other part kept on chasing and caused deaths. The court said that the two parts of,
the mob could not be said to have shared the intention of burning or causing death.256.,
[s 34.19] Misappropriation.—,
Where the accused the Sarpanch and Secretary of a Gram Panchayat misappropriated,
the funds of the Panchayat and the circumstances and evidence showed patent,
"dishonest intention on the part of the accused persons, the conviction and sentence of",
"the accused under section 409/34, was not interfered with.257.",
[s 34.20] Rape cases.—,
In Gang Rape it is not necessary that the intention should exists from the beginning. It,
can be developed at the last minute before the commission of the offence.258.,
[s 34.21] Exhortation.—,
One of the accused exhorted while the other immobilised the deceased and the third,
accused delivered the fatal injuries. It was held that each one shared a common,
intention.259. Section 34 was held to have been rightly applied where two of the,
accused persons caught hold of the deceased and on their exhortation the third,
accused shot him on the right temple resulting in death.260.,
Mere exhortation by one of the accused persons saying that they would not leave the,
victim till he died was held to be not a basis for roping into the common intention of the,
others.261. The only allegation against the appellant was her exhortation. Enmity,
"between the family of the deceased and that of the accused proved. In such a situation,",
"where the eye witnesses have not narrated any specific role carried by the appellant,",
rather the specific role of assaulting with the sword has been attributed to the co-,
"accused, it cannot be ruled out that the name of the appellant has been added due to",
enmity with the main accused.262.,
[s 34.22] Pre-conceived common intention.—,
Only when a court with some certainty holds that a particular accused must have pre-,
conceived or pre-meditated the result which ensued or acted in concert with others in,
"order to bring about that result, that section 34 may be applied.263.",
[s 34.23] Common intention and private defence.—,
If two or more persons had common intention to commit murder and they had,
"participated in the acts done by them in furtherance of that common intention, all of",
"them would be guilty of murder. Section 96 IPC, 1860 says that nothing is an offence",
which is done in the exercise of the right of private defence. Though all the accused,
would be liable for committing the murder of a person by doing an act or acts in,
"furtherance of the common intention, they would not be liable for the act or acts if they",
had the right of private defence to voluntarily cause death of that person. Common,
"intention, therefore, has relevance only to the offence and not to the right of private",
defence. What would be an offence by reason of constructive liability would cease to,
be one if the act constituting the offence was done in exercise of the right of private,
defence.,
If the voluntary causing of death is not permissible under the right of private defence,
"under section 96, then the common intention in regard thereto will lead to the result",
that the accused persons must be held guilty by reason of constructive liability under,
"the relevant section (in this case section 304 Part I IPC, 1860). If, however, the common",
intention was only to commit an act which was permissible within the confines of s. 96,
"read with s. 98, then constructive liability under section 34 cannot be said to have been",
"accrued to the accused. If the right of private defence was exceeded by some persons,",
the guilt of each of the accused proved to have exceeded the right of private defence,
would have to be dealt with separately. The instant case came under the former,
"situation, and hence, such persons were guilty under section 304, Part I IPC, 1860.",
"They, therefore, must be held to have had a common object for causing death of P.",
They were sentenced to undergo ten years' rigorous imprisonment each.264.,
"170. Subs. by Act 27 of 1870, section 1, for section 34.",
"171. Goudappa v State of Karnataka, (2013) 3 SCC 675 [LNIND 2013 SC 177] ; Satyavir Singh",
"Rathi v State Thr. CBI, AIR 2011SC 1748 : (2011) 6 SCC 1 [LNIND 2011 SC 475] : 2011 Cr LJ.",
"2908 ; Abdul Sayeed v State of MP, 2010 (10) SCC 259 [LNIND 2010 SC 872] : 2010(9) Scale 379",
: (2010) 3 SCC (Cr) 1262.,
"172. Kuria v State of Rajasthan, AIR 2013 SC 1085 [LNIND 2012 SC 678] : (2012) 10 SCC 433",
[LNIND 2012 SC 678] : 2012 Cr LJ 4707 (SC).,
"173. Queen v Gora Chand Gope, (1866) 5 South WR (Cr) 45.",
"174. Ashok Kumar v State of Punjab, AIR 1977 SC 109 : (1977)1 SCC 746 .",
175. Babulal Bhagwan Khandare v State Of Maharashtra AIR 2005 SC 1460 [LNIND 2004 SC,
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"176. Barendra Kumar Ghosh v King Emperor, AIR 1925 PC 1 [LNIND 1924 BOM 206] .",
"177. Lallan Rai v State of Bihar, AIR 2003 SC 333 [LNIND 2002 SC 705] : 2003 Cr LJ 465 : (2003)",
1 SCC 268 [LNIND 2002 SC 705] .,
"178. Virendra Singh v State of MP, (2010) 8 SCC 407 [LNIND 2010 SC 723] : (2010) 3 SCC (Cr)",
893 : 2011 Cr LJ 952 .,
"179. Garib Singh v State of Punjab, 1972 Cr LJ 1286 : AIR 1973 SC 460 [LNIND 1972 SC 187] .",
"See also Yogendra v State of Bihar, 1984 Cr LJ 386 (SC).",
"180. Ram Tahal v State of UP, 1972 Cr LJ 227 : AIR 1972 SC 254 [LNIND 1971 SC 579] relied in",
"Thoti Manohar v State of AP,2012, (7) Scale 215 : (2012) 7 SCC 723 [LNIND 2012 SC 365] : 2012",
"Cr LJ 3492 ; see also Amar Singh v State of Haryana, 1973 Cr LJ 1409 : AIR 1973 SC 2221 ;",
"Dharam Pal v State of UP, 1975 Cr LJ 1666 : AIR 1975 SC1917 [LNIND 1975 SC 314] ; Amir",
"Hussain v State of UP, 1975 Cr LJ 1874 : AIR 1975 SC 2211 State of Rajasthan v ArjunSingh,",
(2011) 9 SCC 115 [LNIND 2011 SC 855] : AIR 2011 SC 3380 [LNIND 2011 SC 855] .,
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"184. Shyamal Ghosh v State of WB, (2012) 7 SCC 646 [LNIND 2012 SC 397] : 2012 Cr LJ 3825 :",
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"SC 464 : 1972 Cr LJ 262 ; Rana Pratap v State of Haryana, AIR 1983 SC 680 [LNIND 1983 SC 157]",
": 1983 Cr LJ 1272 : (1983) 3 SCC 327 [LNIND 1983 SC 157] ,",
"185. Syed Yousuf Hussain v State of AP, AIR 2013 SC 1677 [LNIND 2013 SC 275] : 2013 Cr LJ",
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"188. Barendra Kumar Ghosh v King Emperor, AIR 1925 PC 1 [LNIND 1924 BOM 206] .",
"189. Mehbub Shah v King-Emperor, AIR 1945 PC 148 .",
190. Supra.191.Supra.,
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"193. Shyamal Ghosh v State of WB, (2012) 7 SCC 646 [LNIND 2012 SC 397] : 2012 Cr LJ 3825 :",
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2011 SC 622] : (2011) 12 SCC 120 [LNIND 2011 SC 622] .,
"194. Vijendra Singh v State of UP, AIR 2017 SC 860 [LNIND 2017 SC 16] ; Bharwad Mepa Dana v",
"State of Bombay, AIR 1960SC 289.",
"195. Virendra Singh v State of MP, (2010) 8 SCC 407 [LNIND 2010 SC 723] : (2010) 3 SCC (Cr)",
893 : 2011 Cr LJ 952 .,
"196. Shreekantiah Ramayya, (1954) 57 Bom LR 632 (SC); Shiv Prasad, AIR 1965 SC 264 [LNIND",
1964 SC 51] : (1965) 1 CrLJ 249 .,
"197. Baba Lodhi v State of UP, (1987) 2 SCC 352 : AIR 1987 SC 1268 : 1987 Cr LJ 1119 ; MA",
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"SCC 225 [LNIND 1991 SC 24] ; Noor v State ofKarnataka, (2007) 12 SCC 84 [LNIND 2007 SC 639]",
: (2008) 2 SCC Cr 221 : 2007 Cr LJ 4299 .,
"198. Tara Devi v State of UP, (1990) 4 SCC 144 : AIR 1991 SC 342 . See also Hem Raj v State",
"Delhi Admn., 1990 Cr LJ 2665 : 1990 Supp SCC 291 : AIR 1990 SC 2252 , one of the accused",
"alone proved to have given the fatal blow, the participation of others not proved, others not",
convicted under section 302/34.,
"199. Bishan Singh v State of Punjab, 1983 Cr LJ 973 : AIR 1983 SC 748 : 1983 Cr LJ (SC) 327 :",
"1983 SCC (Cr) 578; Ghanshyam v State of UP, 1983 Cr LJ 439 (SC) : AIR 1983 SC 293 : (1982) 2",
SCC 400 .,
"200. Dasrathlal v State of Gujarat, 1979 Cr LJ 1078 (SC) : AIR 1979 SC 1342 . See further",
"Rangaswami v State of TN, AIR 1989 SC 1137 : 1989 Cr LJ 875 : 1989 SCC (Cr) 617 : 1989 Supp",
"(1) SCC 686 . Gulshan v State of Punjab, 1989 Cr LJ 120 : AIR 1988 SC 2110 : 1990 Supp SCC",
682 .,
"201. Jarnail Singh v State of Punjab, (1996) 1 SCC 527 [LNIND 1995 SC 1172] : AIR 1996 SC 755",
[LNIND 1995 SC 1172] : 1996 Cr LJ 1139 .,
202. Maharashtra State Electricity Distribution Co Ltd v Datar Switchgerar Ltd (2010) 10 SCC 479,
"[LNIND 2010 SC 979] : 2011 Cr LJ 8 ; Chandrakant Murgyappa Umrani v State of Maharashtra,",
"1998 SCC (Cr) 698; Hamlet @ Sasi. v State of Kerala, (2003) 10 SCC 108 [LNIND 2003 SC 688] ;",
"Surendra Chauhan v State of MP, (2000) 4 SCC 110 [LNIND 2000 SC 515] : AIR 2000 SC 1436",
"[LNIND 2000 SC 515] ; Ramjee Rai v State of Bihar, (2006) 13 SCC 229 [LNIND 2006 SC 647] :",
"2006 Cr LJ 4630 ; Prakash v State of MP, (2006) 13 SCC 508 [LNIND 2006 SC 1071] : 2007 Cr LJ",
"798 ; Sham Shankar Kankaria v State of Maharashtra, (2006) 13 SCC 165 [LNIND 2006 SC 684] ;",
"Manik Das v State of Assam, (2007) 11 SCC 403 [LNIND 2007 SC 769] : AIR 2007 SC 2274",
"[LNIND 2007 SC 769] , participation proved.",
"203. Chacko v State of Kerala, (2004) 12 SCC 269 [LNIND 2004 SC 86] : AIR 2004 SC 2688",
"[LNIND 2004 SC 86] ; Abdul Wahid v State of Rajasthan, (2004) 11 SCC 241 [LNIND 2004 SC",
"1454] : AIR 2004 SC 3211 [LNIND 2004 SC 1454] : 2004 Cr LJ 2850 ; Janak Singh v State of UP,",
(2004) 11 SCC 385 [LNIND 2004 SC 515] : AIR 2004 SC 2495 [LNIND 2004 SC 515] : 2004 Cr LJ,
"2533 ; Parsuram Pandey v State of Bihar, 2005 SCC (Cr) 113 : AIR 2004 SC 5068 [LNIND 2004 SC",
1075] .,
"204. Suresh Sakharam Nangare v State of Maharashtra, 2012 (9) Scale 245 [LNIND 2012 SC 574]",
: (2012) 9 SCC 249 [LNIND 2012 SC 574] .,
"205. Raju v State of Chhatisgarh, 2014 Cr LJ 4425 .",
"206. Shreekantiah Ramayya v State of Bombay, AIR 1955 SC 287 [LNIND 1954 SC 180] : 1955",
SCR (1) 1177 .,
"207. Parasa Raja Manikyala Rao v State of AP, (2003) 12 SC 306 : AIR 2004 SC 132 [LNIND 2003",
"SC 888] : 2004 Cr LJ 390 ; Virendra Singh v State of MP, (2010) 8 SCC 407 [LNIND 2010 SC 723] :",
"(2010) 3 SCC (Cr) 893 : 2011 Cr LJ 952 ; Jaikrishnadas Desai, (1960) 3 SCR 319 [LNIND 1960 SC",
"79] : AIR 1960 SC 889 [LNIND 1960 SC 79] : 1960 Cr LJ 1250 ; Dani Singh v State of Bihar, AIR",
2004 SC 4570 [LNIND 2004 SC 1490] : (2004) 13 SCC 203 [LNIND 2004 SC 1490] .,
"208. Suresh v State of UP, 2001 (3) SCC 673 [LNIND 2001 SC 623] : AIR 2001 SC 1344 [LNIND",
"2001 SC 623] ; Ramaswami Ayyangar v State of TN, AIR 1976 SC 2027 [LNIND 1976 SC 128] :",
1976 Cr LJ 1536 (the presence of those who in one way or the other facilitate the execution of,
"the common design itself tantamounts to actual participation in the ""criminal act"").",
"209. Rajkishore Purohit v State of Madhya Pradesh, AIR 2017 SC 3588 [LNIND 2017 SC 362] .",
"210. Parasa Raja Manikyala Rao v State of AP, (2003) 12 SC 306 : AIR 2004 SC 132 [LNIND 2003",
"SC 888] : 2004 Cr LJ 390 , citing Shankarlal Kacharabhai, AIR 1965 SC 1260 [LNIND 1964 SC",
230] : 1965 (2) Cr LJ 226 .,
"211. Dharnidhar v State of UP, (2010) 7 SCC 759 [LNIND 2010 SC 584] : 2010 (7) Scale 12 ;",
"Shyamal Ghosh v State of WB, (2012) 7 SCC 646 [LNIND 2012 SC 397] : 2012 Cr LJ 3825 : AIR",
2012 SC 3539 [LNIND 2012 SC 397] .,
"212. Amrik Singh v State of Punjab, 1972 Cr LJ 465 (SC) : (1972) 4 SCC (N) 42 (SC).",
"213. Krishna Govind Patil v State of Maharashtra, AIR 1963 SC 1413 [LNIND 1963 SC 12] : 1964",
(1) SCR 678 [LNIND 1963 SC 12] : 1963 Cr LJ 351 (SC); State of Maharashtra v Jagmohan Singh,
"Kuldip Singh Anand, (2004) 7 SCC 659 [LNIND 2004 SC 862] : AIR 2004 SC 4412 [LNIND 2004 SC",
"862] , the prosecution is not required to prove in every case a pre-arranged plan or prior concert.",
"Preetam Singh v State of Rajasthan, (2003) 12 SCC 594 , prior concert can be inferred, common",
intention can develop on the spot.,
"214. Harbans Nonia v State of Bihar, AIR 1992 SC 125 : 1992 Cr LJ 105 .",
"215. Dharam Pal v State of UP, AIR 1995 SC 1988 [LNIND 1995 SC 198] : 1995 Cr LJ 3642 .",
"216. Hanuman Prasad v State of Rajasthan, (2009) 1 SCC 507 [LNIND 2008 SC 2256] : (2009) 1",
"SCC Cr 564, the Supreme Court distinguishes common intention from similar intention and also",
explains the meaning and applicability of the expression.,
"217. Dajya Moshaya Bhil v State of Maharashtra, 1984 Cr LJ 1728 : AIR 1984 SC 1717 : 1984",
Supp SCC 373 . The Supreme Court applied the distinction between common intention and,
"similar intention in State of UP v Rohan Singh, (1996) Cr LJ 2884 (SC) : AIR 1996 SCW 2612 . In",
"Mohan Singh v State of Punjab, AIR 1963 SC 174 [LNIND 1962 SC 118] it was held that persons",
having similar intention which is not the result of pre-concerted plan cannot be held guilty for,
"the ""criminal act"" with the aid of Section 34.",
"218. Parichhat v State of MP, 1972 Cr LJ 322 : AIR 1972 SC 535 ; Amrik Singh v State of Punjab,",
"1972 Cr LJ 465 (SC). Followed in Khem Karan v State of UP, 1991 Cr LJ 2138 All where each",
"accused hit differently at the behest of one of them, hence, no common intention.",
"219. Mitter Sen v State of UP, 1976 Cr LJ 857 : AIR 1976 SC 1156 ; see also Gajjan Singh v State",
"of Punjab, 1976 Cr LJ 1640 : AIR 1976 SC 2069 [LNIND 1976 SC 72] ; Jarnail Singh v State of",
"Punjab, 1982 Cr LJ 386 : AIR 1982 SC 70 (SC).",
"220. Rambilas Singh v State of Bihar, AIR 1989 SC 1593 [LNIND 1989 SC 216] : (1989) 3 SCC 605",
[LNIND 1989 SC 216] : 1989 Cr LJ 1782 . The conviction under sub-sections 34/149 and 34/302,
was set aside.,
"221. Tripta v State of Haryana, AIR 1992 SC 948 : 1992 Cr LJ 3944 . See also Major Singh v State",
"of Punjab, AIR 2003 SC 342 [LNIND 2002 SC 742] : 2003 Cr LJ 473 : (2002) 10 SCC 60 [LNIND",
"2002 SC 742] ; Balram Singh v State of Punjab, AIR 2003 SC 2213 [LNIND 2003 SC 514] : (2003)",
SCC 286 .,
"222. Devaramani v State of Karnataka, (1995) 2 Cr LJ 1534 SC. See also Gopi Nath v State of UP,",
"AIR 2001 SC 2493 : 2001 Cr LJ 3514 ; Pal Singh v State of Punjab, AIR 1999 SC 2548 [LNIND",
"1999 SC 604] : 1999 Cr LJ 3962 ;Prem v Daula, AIR 1997 SC 715 [LNIND 1997 SC 64] : 1997 Cr",
"LJ 838 ; Muni Singh v State of Bihar, AIR 2002 SC 3640 ;Mahesh Mahto v State of Bihar, AIR 1997",
SC 3567 [LNIND 1997 SC 1103] : 1997 Cr LJ 4402 .,
"223. Lallan Rai v State of Bihar, AIR 2003 SC 333 [LNIND 2002 SC 705] : 2003 Cr LJ 465 : (2003)",
1 SCC 268 [LNIND 2002 SC 705] .,
"224. Narinder Singh v State of Punjab, AIR 2000 SC 2212 [LNIND 2000 SC 615] : 2000 Cr LJ 3462",
", Sheelam Ramesh v State ofAP, AIR 2000 SC 118 [LNIND 1999 SC 926] : 2000 Cr LJ 51 ; State of",
"Haryana v Bhagirath, AIR 1999 SC 2005 [LNIND 1999 SC 541] : 1999 CrLJ 2898 ; Asha v State of",
"Rajasthan, AIR 1997 SC 2828 [LNIND 1997 SC 844] : 1997 Cr LJ 3561 .",
"225. Satyavir Singh Rathi v State Thr. CBI, AIR 2011 SC 1748 [LNIND 2011 SC 475] : (2011) 6 SCC",
1 [LNIND 2011 SC 475] : 2011 Cr LJ 2908 .,
"226. Krishnan v State, (2003) 7 SCC 56 [LNIND 2003 SC 587] : AIR 2003 SC 2978 [LNIND 2003",
SC 587] : 2003 Cr LJ 3705 .,
"227. Rajkishore Purohit v State of MP, AIR 2017 SC 3588 [LNIND 2017 SC 362] .",
"228. Ajay Sharma v State of Rajasthan, AIR 1998 SC 2798 [LNIND 1998 SC 879] : 1998 Cr LJ",
"4599 . See also State of Karnatakav Maruthi, AIR 1997 SC 3797 : 1997 Cr LJ 4407 ; Bhupinder",
"Singh v State of Haryana, AIR 1997 SC642 : 1997 Cr LJ 958 .",
"229. State of UP v Balkrishna Das, AIR 1997 SC 225 [LNIND 1996 SC 1753] : 1997 Cr LJ 73 .",
"230. State of AP v M Sobhan Babu, 2011 (3) Scale 451 [LNIND 2010 SC 1219] : 2011 Cr LJ 2175",
(SC).,
"231. Rajkishore Purohit v State of MP, AIR 2017 SC 3588 [LNIND 2017 SC 362] ; State of AP v M.",
"Sobhan Babu, 2011 (3) Scale 451 [LNIND 2010 SC 1219] : 2011 Cr LJ 2175 (SC).",
"232. Kuria v State of Rajasthan, (2012) 10 SCC 433 [LNIND 2012 SC 678] : 2012 Cr LJ 4707 (SC);",
"Hemchand Jha v State of Bihar, (2008) 11 SCC 303 [LNIND 2008 SC 1299] : (2008) Cr LJ 3203 ;",
"Shyamal Ghosh v State of WB, (2012) 7 SCC 646 [LNIND 2012 SC 397] : 2012 Cr LJ 3825 : AIR",
"2012 SC 3539 [LNIND 2012 SC 397] ; Nand Kishore v State of MP, AIR 2011 SC 2775 [LNIND",
2011 SC 622] : (2011) 12 SCC 120 [LNIND 2011 SC 622] .,
"233. Bengai Mandal v State of Bihar, AIR 2010 SC 686 [LNIND 2010 SC 39] : (2010) 2 SCC 91",
[LNIND 2010 SC 39] .,
"234. Maqsoodan v State of UP, 1983 Cr LJ 218 : AIR 1983 SC 126 [LNIND 1982 SC 199] : (1983)",
"1 SCC 218 [LNIND 1982 SC 199] ; Aizaz v State of UP, (2008) 12 SCC 198 [LNIND 2008 SC 1621]",
": 2008 Cr LJ 4374 , Lala Ram v State of Rajasthan, (2007) 10 SCC 225 [LNIND 2007 SC 803] :",
"(2007) 3 SCC Cr 634, Harbans Kaur v State of Haryana, AIR 2005 SC 2989 [LNIND 2005 SC 211] :",
"2005 Cr LJ 2199 (SC), Dani Singh v State of Bihar, 2004 (13) SCC 203 [LNIND 2004 SC 1490] :",
2004 Cr LJ 3328 (SC).,
"235. Ram Tahal v State of UP, 1972 Cr LJ 227 : AIR 1972 SC 254 [LNIND 1971 SC 579] ; see also",
"Nitya Sen v State of WB, 1978 Cr LJ 481 : AIR 1978 SC 383 ; Sivam v State of Kerala, 1978 Cr LJ",
"1609 : AIR 1978 SC 1529 ; Jagdeo Singh v State of Maharashtra, 1981 Cr LJ 166 : AIR 1981 SC",
"648 (SC); Aher Pitha Vajshi v State of Gujarat, 1983 Cr LJ 1049 : AIR 1983 SC 599 [LNIND 1983",
"SC 98] : 1983 SCC (Cr) 607; Manju Gupta v MS Paintal, AIR 1982 SC 1181 [LNIND 1982 DEL 128] :",
1982 Cr LJ 1393 : (1982) 2 SCC 412 . Another instance of failed prosecution under the Act is,
"Harendra Narayan Singh v State of Bihar, AIR 1991 SC 1842 [LNIND 1991 SC 307] : 1991 Cr LJ",
"2666 . Ghana Pradhan v State of Orissa, AIR 1991 SC 1133 : 1991 Cr LJ 1178 . Common intention",
not established even when the two accused were striking the same person in their own ways.,
"236. Raju @ Rajendra v State of Rajasthan, 2013 Cr LJ 1248 (SC) : (2013) 2 SCC 233 [LNIND",
2013 SC 25] .,
"237. Jhinku Nai v State of UP, AIR 2001 SC 2815 [LNIND 2001 SC 1587] at p. 2817. See also",
"Jagga Singh v State of Punjab, (2011) 3 SCC 137 [LNINDORD 2011 SC 288] : AIR 2011 SC 960",
[LNINDORD 2011 SC 288] .,
"238. Maharashtra State Electricity Distribution Co Ltd v Datar Switchgerar Ltd, (2010) 10 SCC 479",
[LNIND 2010 SC 979] : 2011 Cr LJ 8 : (2010) 12 SCR 551 : (2011) 1 SCC (Cr) 68.,
"239. Darbara Singh v State of Punjab, 2012 (8) Scale 649 [LNIND 2012 SC 545] : (2012) 10 SCC",
"476 [LNIND 2012 SC 545] ; Gurpreet Singh v State of Punjab, AIR 2006 SC 191 [LNIND 2005 SC",
887] : (2005) 12 SCC 615 [LNIND 2005 SC 887] .,
"240. Vijay Singh v State of MP, 2014 Cr LJ 2158 .",
"241. Willie Slavey v The State of MP, 1955 (2) SCR 1140 [LNIND 1955 SC 90] at p 1189 : AIR",
1956 SC 116 [LNIND 1955 SC 90] .,
"242. Santosh Kumari v State of J&K, (2011) 9 SCC 234 [LNIND 2011 SC 901] : AIR 2011 SC 3402",
[LNIND 2011 SC 901] : (2011) 3 SCC (Cr) 657.,
"243. Krishna Govind Patil v State of Maharashtra, AIR 1963 SC 1413 [LNIND 1963 SC 12] : 1963",
Cr LJ 351 relied in Chinnam Kameswara Rao v State of AP 2013 Cr LJ 1540 : JT 2013 (2) SC 398,
[LNIND 2013 SC 57] : 2013 (1) Scale 643 [LNIND 2013 SC 57] .,
"244. Anil Sharma v State of Jharkhand, (2004) 5 SCC 679 [LNIND 2004 SC 590] : AIR 2004 SC",
2294 [LNIND 2004 SC 590] : 2004 Cr LJ 2527 .,
"245. Satyavir Singh Rathi v State Thr. CBI, AIR 2011 SC 1748 [LNIND 2011 SC 475] : (2011) 6 SCC",
1 [LNIND 2011 SC 475] : 2011 Cr LJ 2908 .,
"246. Barendra Kumar Ghosh v Emp., AIR 1925 PC 1 [LNIND 1924 BOM 206] (7) : 26 Cr LJ 431;",
"Nanak Chand v State of Punjab, 1955 Cr LJ 721 (SC); Anam Pradhan v State, 1982 Cr LJ 1585",
"(Ori). Chittaramal v State of Rajasthan, (2003) 2 SCC 266 [LNIND 2003 SC 14] : AIR 2003 SC 796",
"[LNIND 2003 SC 14] : 2003 Cr LJ 889 , points of similarity and distinction explained in the case.",
"247. Virendra Singh v State of MP, (2010) 8 SCC 407 [LNIND 2010 SC 723] : (2010) 3 SCC (Cr)",
893 : 2011 Cr LJ 952 .,
"248. Surinder Singh v State of Punjab, (2003) 10 SCC 66 [LNIND 2003 SC 652] .",
"249. Lachman Singh v The State, 1952 SCR 839 [LNIND 1952 SC 21] : AIR 1952 SC 167 [LNIND",
"1952 SC 21] : 1952 Cr LJ 863 and Karnail Singh vState of Punjab, 1954 SCR 904 [LNIND 1953 SC",
126] : AIR 1954 SC 204 [LNIND 1953 SC 126] : 1954 Cr LJ 580 .,
250. Sangappa Sanganabasappa v State of Karnataka (2010) 11 SCC 782 [LNIND 2010 SC 866] :,
"(2011) 1 SCC (Cr) 256; BaitalSingh v State of UP, AIR 1990 SC 1982 : 1990 Cr LJ 2091 : 1990",
"Supp SCC 804 ; Ramdeo RaoYadav v State of Bihar, AIR 1990 SC 1180 [LNIND 1990 SC 126] :",
1990 Cr LJ 1983 .,
"251. Dahari vState of UP, AIR 2013 SC 308 2012 (10) Scale 160, (2012)10 SCC 256 [LNIND 2012",
"SC 638] ; Jivan Lal v State ofMP, 1997 (9) SCC 119 [LNIND 1996 SC 2679] ; and Hamlet @ Sasi v",
"State of Kerala, AIR 2003 SC 3682 [LNIND 2003 SC 688] ; Gurpreet Singh vState of Punjab, AIR",
"2006 SC 191 [LNIND 2005 SC 887] ; Sanichar Sahni v State of Bihar, AIR 2010 SC 3786 [LNIND",
"2009 SC 1350] ; S Ganesan vRama Raghuraman, 2011 (2) SCC 83 [LNIND 2011 SC 5] ; Darbara",
"Singh v State of Punjab, 2012 (8) Scale 649 [LNIND 2012 SC 545] : (2012)10 SCC 476 [LNIND",
2012 SC 545] : JT 2012 (8) SC 530 [LNIND 2012 SC 545] .,
"252. Manik Shankarrao Dhotre v State of Maharashtra, 2008 Cr LJ 1505 (Kar); State of",
"Maharashtra vMahipal Singh Satyanarayan Singh, 1996 Cr LJ 2485 .",
"253. Brahmjit Singh v State, 1992 Cr LJ 408 (Del).",
"254. Prem v State of Maharashtra, 1993 Cr LJ 1608 (Bom).255.Dukhmochan Pandey v State of",
"Bihar, AIR 1998 SC 40 [LNIND 1997 SC 1255] : 1998 Cr LJ 66 .",
"256. State of Gujarat v Chandubhai Malubhai Parmar, AIR 1997 SC 1422 [LNIND 1997 SC 627] :",
1997 Cr LJ 1909 (SC).,
"257. Ghoura Chandra Naik v State of Orissa, 1992 Cr LJ 275 (Ori). See Rameshchandra Bhogilal",
"Patel vState Of Gujarat, 2011 Cr LJ 1395 (Guj) (Section 420/34).",
"258. Dev Cyrus Colabawala v State of Maharashtra, 2010 Cr LJ 758 (Bom).",
"259. Atambir Singh v State of Delhi, 2016 Cr LJ 568 (Del).",
"260. Vinay Kumar Rai v State of Bihar, (2008) 12 SCC 202 [LNIND 2008 SC 1646] : 2008 Cr LJ",
4319 : AIR 2008 SC 3276 [LNIND 2008 SC 1646] .,
"261. Nagaraja v State of Karnataka, (2008) 17 SCC 277 [LNIND 2008 SC 2484] : AIR 2009 SC",
"1522 [LNIND 2008 SC 2484] : one accused struck onthe road with an iron rod, two others used",
"fists and kicks, there was nothing more common, the twocould be convicted under section 323.",
See also Mohan Singh v State of MP AIR 1999 SC 883 [LNIND 1999 SC 69] : (1999) 2 SCC 428,
"[LNIND 1999 SC 69] , Abdul Wahid v State of Rajasthan, AIR 2004 SC 3211 [LNIND 2004 SC 1454]",
": (2004) 11 SCC 241 [LNIND 2004 SC 1454] ; AjaySharma v State of Rajasthan, AIR 1998 SC 2798",
[LNIND 1998 SC 879] : (1999) 1 SCC 174 [LNIND 1998 SC 879] .,
"262. Chandra Kaur v State of Rajasthan, 2016 Cr LJ 3346 : AIR 2016 SC 2926 [LNINDU 2015 SC",
139] .,
263. Suresh v State of UP AIR 2001 SC 1344 [LNIND 2001 SC 623] : (2001) 3 SCC 673 [LNIND,
"2001 SC 623] quoted from Shatrughan Patar vEmperor. See also Sewa Ram v State of UP, 2008",
"Cr LJ 802 : AIR 2008 SC682 [LNIND 2007 SC 1452] ; Abaram v State of MP, (2007) 12 SCC 105",
[LNIND 2007 SC 546] : (2008) 2 SCC Cr 243 : 2007 Cr LJ 2743 .,
"264. Bhanwar Singh v State of MP, (2008) 16 SCC 657 [LNIND 2008 SC 1246] : AIR 2009 SC 768",
"[LNIND 2008 SC 1246] ; Vajrapu Sambayya Naidu vState of AP, AIR 2003 SC 3706 [LNIND 2003",
SC 176] : (2004) 10 SCC 152 [LNIND 2003 SC 176] .,
THE INDIAN PENAL CODE,
CHAPTER II GENERAL EXPLANATIONS,
THIS Chapter is for the most part an elaborate interpretation clause. It is a key to the,
interpretation of the whole Code. The leading terms used are here defined and,
"explained and the meanings thus, announced are steadily adhered to throughout the",
subsequent chapters.,
170.[[s 34] Acts done by several persons in furtherance of common intention.,
When a criminal act is done by several persons in furtherance of the common,
"intention 1 of all, each of such persons is liable for that act in the same manner as if it",
were done by him alone.],
COMMENT—,
"Introduction.—Ordinarily, no man can be held responsible for an independent act and",
"wrong committed by another. However, section 34 of the IPC, 1860 makes an exception",
to this principle. It lays down a principle of joint liability in the doing of a criminal act.,
"The essence of that liability is to be found in the existence of common intention,",
animating the accused leading to the doing of a criminal act in furtherance of such,
"intention. It deals with the doing of separate acts, similar or adverse by several",
"persons, if all are done in furtherance of common intention. In such situation, each",
person is liable for the result of that as if he had done that act himself.171. The soul of,
"section 34, IPC, 1860 is the joint liability in doing a criminal act.172.",
[s 34.1] History.—,
"Section 34 IPC, 1860 is part of the original Code of 1860 as drafted by Lord Macaulay.",
"The original section as it stood was ""When a criminal act is done by several persons,",
each of such persons is liable for that act in the same manner as if the act was done by,
"him alone."" However, on account of certain observations made by Sir Barnes Peacock,",
"CJ, in Queen v Gora Chand Gope,173. it was necessary to bring about a change in the",
"wordings of the section. Accordingly, in the year 1870 an amendment was brought",
"which introduced the following words after ""when a criminal act is done by several",
"persons..."" ""…in furtherance of the common intention..."". After this change, the section",
has not been changed or amended ever.,
[s 34.2] Object.—,
The provision is intended to meet a case in which it may be difficult to distinguish,
between acts of individual members of a party who act in furtherance of the common,
intention of all or to prove exactly what part was taken by each of them. The true,
"contents of the section are that if two or more persons intentionally do an act jointly,",
the position in law is just the same as if each of them has done it individually by,
"himself. As observed in Ashok Kumar v State of Punjab,174. the existence of a common",
intention amongst the participants in a crime is the essential element for application of,
this section. It is not necessary that the acts of the several persons charged with,
commission of an offence jointly must be the same or identically similar. The acts may,
"be different in character, but must have been actuated by one and the same common",
"intention in order to attract the provision.175. Barendra Kumar Ghosh v King Emperor,176.",
stated the true purport of section 34 as:,
The words of s.34 are not to be eviscerated by reading them in this exceedingly limited,
"sense. By s.33 a criminal act in s.34 includes a series of acts and, further, 'act' includes",
"omission to act, for example, an omission to interfere in order to prevent a murder being",
"done before one's very eyes. By s.37, when any offence is committed by means of several",
acts whoever intentionally cooperates in the commission of that offence by doing any one,
"of those acts, either singly or jointly with any other person, commits that offence. Even if the",
"appellant did nothing as he stood outside the door, it is to be remembered that in crimes as",
in other things 'they also serve who only stand and wait'.177.,
[s 34.3] Principle.—,
This section is only a rule of evidence and does not create a substantive offence.,
"Section 34 IPC, 1860 lays down the principle of constructive liability. The essence of",
"section 34 IPC, 1860 is a simultaneous consensus of the minds of the persons",
"participating in criminal action to bring about a particular result. Section 34 IPC, 1860",
stipulates that the act must have been done in furtherance of the common intention. In,
"fact, the section is intended to cover a case where a number of persons act together",
and on the facts of the case it is not possible for the prosecution to prove as to which,
of the persons who acted together actually committed the crime. Little or no distinction,
exists between a charge for an offence under a particular section and a charge under,
"that section read with section 34.178. Therefore, section 34, IPC, 1860, would apply",
even if no charge is framed under that section provided of course from the evidence it,
becomes clear that there was pre-arranged plan to achieve the commonly intended,
"object.179. Thus, where six persons were charged under sections 148, 302/149 and",
"307/149, IPC, 1860, but two were acquitted, the remaining four accused could be",
convicted on the charges of murder and attempt to murder with the aid of section 34 of,
the Penal Code.180. This section really means that if two or more persons intentionally,
"do a thing jointly, it is just the same as if each of them had done it individually.181. If the",
criminal act was a fresh and independent act springing wholly from the mind of the,
"doer, the others are not liable merely because when it was done they were intending to",
be partakers with the doer in a different criminal act.,
"[s 34.4] Scope, ambit and applicability.—",
Section 34 of the Indian Penal Code recognises the principle of vicarious liability in,
criminal jurisprudence. The said principle enshrined under Section 34 of the Code,
would be attracted only if one or more than one accused person act conjointly in the,
commission of offence with others. It is not necessary that all such persons should be,
named and identified before the liability under Section 34 of the Indian Penal Code can,
be invoked. So long as the evidence brought by the prosecution would disclose that,
one or more accused persons had acted in concert with other persons not named or,
"identified, the liability under Section 34 of the Code would still be attracted. Once the",
"other accused stands acquitted in absence of said evidence, the vicarious liability",
under section 34 of the Code would not be attracted so as to hold the accused liable,
"for the offence with the aid of Section 34 of the Code. However, the accused would still",
be liable for the offence if the injury or injuries leading to offence can be attributed to,
him.182. A bare reading of this section shows that the section could be dissected as,
follows:,
(a) Criminal act is done by several persons;,
(b) Such act is done in furtherance of the common intention of all; and,
(c) Each of such persons is liable for that act in the same manner as if it were done,
by him alone.,
"(d) But, it is not necessary that all such persons should be named and identified",
before the liability under Section 34 of the Indian Penal Code can be invoked.183.,
"In other words, these three ingredients would guide the court in determining whether an",
accused is liable to be convicted with the aid of section 34. While first two are the acts,
"which are attributable and have to be proved as actions of the accused, the third is the",
"consequence. Once the criminal act and common intention are proved, then by fiction",
"of law, criminal liability of having done that act by each person individually would arise.",
"The criminal act, according to section 34 IPC, 1860 must be done by several persons.",
"The emphasis in this part of the section is on the word ""done"".184. The section does not",
envisage the separate act by all the accused persons for becoming responsible for the,
"ultimate criminal act. If such an interpretation is accepted, the purpose of section 34",
"shall be rendered infructuous.185. Under section 34 of the Indian Penal Code, a pre-",
concert in the sense of a distinct previous plan is not necessary to be proved.186. It is a,
well settled law that mere presence or association with other members is not per se,
sufficient to hold each of them criminally liable for the offences committed by the other,
"members, unless there is sufficient evidence on record to show that one such member",
also intends to or knows the likelihood of commission of such an offending act.187.,
[s 34.5] Three leading Cases.—,
"The case of Barendra Kumar Ghosh v King Emperor,188. is a locus classicus and has",
been followed by number of High Courts and the Supreme Court in a large number of,
"cases. In this case, the Judicial Committee dealt with the scope of section 34 dealing",
"with the acts done in furtherance of the common intention, making all equally liable for",
the results of all the acts of others. It was observed that section 34 when it speaks of a,
"criminal act done by several persons in furtherance of the common intention of all, has",
"regard not to the offence as a whole, but to the criminal act, that is to say, the totality of",
the series of acts which result in the offence. In the case of a person assaulted by,
"many accused, the criminal act is the offence which finally results, though the",
achievement of that criminal act may be the result of the action of several persons.,
"In another celebrated case Mehbub Shah v King-Emperor,189. the court held that:",
Section 34 lays down a principle of joint liability in the doing of a criminal act. The section,
"does not say ""the common intentions of all,"" nor does it say ""an intention common to all.""",
"Under the section, the essence of that liability is to be found in the existence of a common",
intention animating the accused leading to the doing of a criminal act in furtherance of such,
"intention. To invoke the aid of s.34 successfully, it must be shown that the criminal act",
complained against was done by one of the accused persons in the furtherance of the,
"common intention of all; if this is shown, then liability for the crime may be imposed on any",
one of the persons in the same manner as if the act were done by him alone. This being the,
"principle, it is clear to their Lordships that common intention within the meaning of the",
"section implies a pre-arranged plan, and to convict the accused of an offence applying the",
section it should be proved that the criminal act was done in concert pursuant to the pre-,
arranged plan.,
Approving the judgments of the Privy Council in Barendra Kumar Ghosh (Barendra,
"Kumar Ghosh v King Emperor,190. and Mahbub Shah cases191 a three-Judge Bench of",
"Supreme Court in Pandurang v State of Hyderabad,192. held that to attract the",
applicability of section 34 of the Code the prosecution is under an obligation to,
establish that there existed a common intention which requires a pre-arranged plan,
"because before a man can be vicariously convicted for the criminal act of another, the",
act must have been done in furtherance of the common intention of all. The Court had,
in mind the ultimate act done in furtherance of the common intention,
[s 34.6] Common intention and mens rea.—,
"Under section 34, every individual offender is associated with the criminal act which",
constitutes the offence both physically as well as mentally i.e. he is a participant not,
only in what has been described as a common act but also what is termed as the,
"common intention and, therefore, in both these respects his individual role is put into",
serious jeopardy although this individual role might be a part of a common scheme in,
which others have also joined him and played a role that is similar or different. But,
"referring to the common intention, it needs to be clarified that the courts must keep in",
"mind the fine distinction between ""common intention"" on the one hand and mens rea as",
understood in criminal jurisprudence on the other. Common intention is not alike or,
identical to mens rea. The latter may be coincidental with or collateral to the former but,
they are distinct and different.193.,
[s 34.7] Participation.—,
Participation of several persons in some action with the common intention of,
"committing a crime is an essential ingredient; once such participation is established,",
"section 34 is at once attracted.194. Thus, the dominant feature of section 34 is the",
element of intention and participation in action. This participation need not in all cases,
be by physical presence.195. The Supreme Court has held that it is the essence of the,
section that the person must be physically present at the actual commission of the,
"crime. He need not be present in the actual room; he can, for instance, stand guard by a",
gate outside ready to warn his companions about any approach of danger or wait in a,
"car on a nearby road ready to facilitate their escape, but he must be physically present",
at the scene of the occurrence and must actually participate in the commission of the,
offence in some way or other at the time crime is actually being committed.196.,
The Supreme Court has emphasised that proof of participation by acceptable evidence,
may in circumstances be a clue to the common intention and that it would not be fatal,
to the prosecution case that the culprits had no community of interests.197.,
"Sometimes, however, absence of actual participation may serve an important purpose",
"as it happened, for example, where in a love triangle the paramour killed the woman's",
husband and she remained sitting with the dead body inside the house without opening,
"the door. The main accused having been acquitted, the Supreme Court held that the",
woman alone could not be convicted under section 302 read with section 34,
particularly in view of the fact that the nature of the injuries (gandasa blows with a,
heavy hand) made it explicit that they were the handiwork of masculine power and not,
that of feminine hands.198. It is also necessary to remember that mere presence of the,
offender at the scene of murder without any participation to facilitate the offence is not,
enough.199. By merely accompanying the accused one does not become liable for the,
"crime committed by the accused within the meaning of section 34, IPC, 1860.200. The",
degree of participation is also an important factor.201. The court restated the two,
ingredients for application of the section which are:,
"(i) common intention to commit a crime, and",
(ii) participation by all the accused in the act or acts in furtherance of the common,
intention. These two things establish their joint liability.202.,
Where one of the accused persons focussed light on the victim with a torch so as to,
"enable others to assault him, otherwise it is a dark night. The court said that his",
conduct prior and subsequent to the occurrence clearly showed that he shared the,
"common intention so far as the assault on the deceased was concerned. Hence, he",
was rightly roped in under section 34.203. If participation is proved and common,
"intention is absent, section 34 cannot be invoked.204. The co-accused was standing",
"outside the house, where the incident took place, while the others committed the",
murder. There is no evidence of his having played any part in the crime. He did not even,
act as a guard; he did not prevent the witness from entering the house. There is no,
evidence of the formation or sharing of any common intention with the other accused.,
"No weapon was seized from him, nor was any property connected with the crime,",
"confiscated from him. It was therefore, held that, it was not safe to convict the co-",
accused of the offence of murder with the aid of sub-sections 34 and 120(B).205.,
[s 34.8] Physical Presence not sine qua non.—,
Physical presence at the very spot is not always a necessary ingredient to attract the,
"action. The Supreme Court decision in Shreekantiah Ramayya v State of Bombay,206. is",
"the authority for the aforesaid proposition. Vivian Bose, J, speaking for the Bench of",
three Judges stated thus:,
"He need not be present in the actual room; he can, for instance, stand guard by a gate",
outside ready to warn his companions about any approach of danger or wait in a car on a,
nearby road ready to facilitate their escape.,
What is required is his actual participation in the commission of the offence in some,
way or other at the time when the crime is actually being committed. The participation,
"need not in all cases be by physical presence. In offence involving physical violence,",
"normally presence at the scene of offence may be necessary, but such is not the case",
in respect of other offences when the offence consists of diverse acts which may be,
done at different times and places. The physical presence at the scene of offence of,
the offender sough to be rendered liable under this section is not one of the conditions,
of its applicability in every case.207. Even the concept of presence of the co-accused at,
"the scene is not a necessary requirement to attract section 34 of the IPC, 1860, e.g., the",
co-accused can remain a little away and supply weapons to the participating accused,
either by throwing or by catapulting them so that the participating accused can inflict,
"injuries on the targeted person. There may be other provisions in the IPC, 1860 like sub-",
sections 120B or 109 which could be invoked then to catch such non-participating,
"accused. Thus, participation in the crime in furtherance of the common intention is sine",
"qua non for section 34 IPC, 1860. Exhortation to other accused, even guarding the",
"scene etc. would amount to participation. Of course, when the allegation against an",
accused is that he participated in the crime by oral exhortation or by guarding the,
scene the court has to evaluate the evidence very carefully for deciding whether that,
person had really done any such act.208.,
"The absence of any overt act of assault, exhortation or possession of weapon cannot",
be singularly determinative of absence of common intention.209.,
[s 34.9] In furtherance of common intention.—,
The Supreme Court referred to the Oxford English Dictionary where the word,
"""furtherance"" is defined as an ""action of helping forward."" Russell, in his book on",
Criminal Law adopted this definition and said:,
It indicates some kind of aid or assistance proceeding an effect in future and that any act,
may be regarded as done in furtherance of the ultimate felony if it is a step intentionally,
"taken for the purpose of effecting the felony."" The Supreme Court has also construed the",
"word ""furtherance"" as ""advancement or promotion.210.",
1. 'Common intention'.—The phrase 'common intention' means a pre-oriented plan and,
acting in pursuance to the plan. The common intention to give effect to a particular act,
may even develop at the spur of moment between a number of persons with reference,
to the facts of a given case.211. In Amrik Singh's case it has further been held that,
though common intention may develop in course of the fight but there must be clear,
and unimpeachable evidence to justify that inference.212. Before a Court can convict a,
"person for any offence read with section 34, it should come to a definite conclusion",
"that the said person had a prior concert with one or more other persons, named or",
"unnamed, for committing the said offence.213. Where the act of murder by the main",
accused was facilitated by two others by catching hold of the victim but without,
"knowing nor having the intention of causing death, it was held that the only common",
intention that could be inferred was that of causing grievous hurt.214. Where the,
accused had inflicted lathi blows causing injuries only on the eyewitness and not on the,
"deceased, he could not be said to have shared the common intention of committing",
murder of the deceased. He was acquitted for the charge of murder and was convicted,
under section 325.215.,
Common intention does not mean similar intention of several persons. To constitute,
common intention it is necessary that the intention of each one of them be known to,
the rest of them and shared by them.216.,
What to speak of similar intention even same intention without sharing each other's,
intention is not enough for this section.217. In a case like this each will be liable for,
whatever injury he caused but none could be vicariously convicted for the act of any of,
"the others.218. In fine, if common intention cannot be inferred from the evidence of",
"facts and circumstances of the case, section 34, IPC, 1860, cannot be invoked.219. A",
party of farmers was cutting their crop. The deceased took away a portion of the,
harvested crop. That night when he was returning from a barat 16 persons waited for,
him on the way. They came towards him and the convict who was carrying a knife gave,
him a stab wound on the neck which proved fatal. The others did not know that he had,
"a knife and all of them being with bare hands, it could not be said that they had the",
common intention of causing death. They could as well have thought that after,
surrounding the accused he would be called upon to return or pay for the harvest taken,
away by him.220.A person gifted his land to one of his grandsons. His other son along,
"with his wife fully armed, the man with a lathi and the woman with a gandasa came to",
protest. The man lost control and both grandson and his father intervened to save the,
situation but they received lathi blows and died. The woman struck only her brother-in-,
law with the gandasa causing a non-fatal injury. Her husband was convicted for murder,
but her punishment was reduced to causing grievous hurt because it appeared that the,
whole thing was a spot happening and not a planned affair.221.,
"Where the genesis of the verbal wrangle between the neighbours was not known, but it",
"appeared to have arisen suddenly, there being no chance for common intention to be",
"formulated, each attacker was held to be punishable for his individual acts.222.",
Where common intention was established the mere fact that one of the culprits,
distanced himself from the scene could not absolve him from liability.223.,
It is not necessary for bringing a case within the scope of section 34 to find as to who,
in fact inflicted the fatal blow. A conviction under the section read with the relevant,
substantive provision can be made when the ingredients required by the section are,
satisfied and it is not necessary to mention the section number in the judgment.224.,
Death of two persons was caused by unprovoked firing by appellants who are police,
officials and grievous gunshot injuries to another person. It was not necessary to,
assign a specific role to each individual appellant as the firing at the Car was,
undoubtedly with a clear intent to annihilate those in it and was resorted to in,
furtherance of common intention of all the appellants. The accused were liable to,
"conviction under section 302/34 IPC, 1860.225. The acts of all the accused need not be",
the same or identically similar. All that is necessary is that they all must be actuated by,
the one and the same common intention. The fact that two of them caused injuries at,
the back of their victim and the injury at the head which proved to be fatal was caused,
"by the third person, the two co-accused could not claim to be absolved of liability for",
murder.226.,
It is not necessary for bringing about the conviction of the co-accused to show that he,
also committed an overt act for the achievement of their object. The absence of any,
overt act or possession of weapon cannot be singularly determinative of absence of,
common intention. If common intention by meeting of minds is established in the facts,
and circumstances of the case there need not be an overt act or possession of weapon,
"required, to establish common intention.227.",
The accused caught hold of the victim and exhorted the main accused to strike him. On,
such exhortation the main accused inflicted a Kirpan wound. The victim died. It was,
held that the instigation was only to strike. It could not be said that the accused shared,
the intention of the main accused to kill. The conviction was altered from under,
sections 202/34 to one under section 324.228. The victim woman was murdered by her,
father-in-law and brother-in-law. The third person helped them to conceal the dead body,
to screen them. The conviction of the two accused for murder was upheld but that of,
the third one only for concealment of evidence under sections 201/34.229.,
[s 34.10] Common Intention: How Proved.—,
The common intention can be inferred from the circumstances of the case and that the,
intention can be gathered from the circumstances as they arise even during an,
incident.230. Common intention is a state of mind. It is not possible to read a person's,
mind. There can hardly be direct evidence of common intention. The existence or non-,
existence of a common intention amongst the accused has to be deciphered,
cumulatively from their conduct and behaviour in the facts and circumstances of each,
"case. Events prior to the occurrence as also after, and during the occurrence, are all",
relevant to deduce if there existed any common intention. There can be no straight,
jacket formula.231. The Court has to examine the prosecution evidence in regard to,
"application of section 34 cumulatively and if the ingredients are satisfied, the",
consequences must follow. It is difficult to state any hard and fast rule which can be,
applied universally to all cases. It will always depend on the facts and circumstances of,
the given case whether the person involved in the commission of the crime with a,
common intention can be held guilty of the main offence committed by them,
"together.232. Courts, in most cases, have to infer the intention from the act(s) or",
"conduct of the accused or other relevant circumstances of the case. However, an",
inference as to the common intention shall not be readily drawn; the criminal liability,
can arise only when such inference can be drawn with a certain degree of,
assurance.233. In most cases it has to be inferred from the act or conduct or other,
relevant circumstances of the case in hand.234. This inference can be gathered by the,
"manner in which the accused arrived on the scene and mounted the attack, the",
determination and concert with which the beating was given or the injuries caused by,
"one or some of them, the acts done by others to assist those causing the injuries, the",
"concerted conduct subsequent to the commission of the offence, for instance all of",
them left the scene of the incident together and other acts which all or some may have,
"done as would help in determining the common intention. In other words, the totality of",
the circumstances must be taken into consideration in arriving at the conclusion,
whether the accused had a common intention to commit an offence of which they,
could be convicted.235. Manner of attack shows the common intention of accused.236.,
The Supreme Court has reiterated:,
"We reiterate that for common intention, there could rarely be direct evidence. The ultimate",
"decision, at any rate would invariably depend upon the inference deducible from the",
circumstances of each case. It is settled law that the common intention or the intention of,
the individuals concerned in furtherance of the common intention could be proved either,
from direct evidence or by inference from the acts or attending circumstances of the case,
and conduct of the parties.237.,
[s 34.11] Complaint.—,
"In order to attract section 34 of the IPC, 1860, the complaint must, prima facie, reflect a",
common prior concert or planning amongst all the accused.238.,
[s 34.12] Effect of no charge under section 34.—,
Even if section 34 has not been included in a charge framed for the offence under,
"section 302 IPC, 1860 against the accused, a conviction for the offence under section",
302 with the aid of section 34 is not bad as no prejudice would be caused to him.239.,
Where the appellants caused injuries not enough to cause the death but the same were,
"caused by another, in the absence of a charge under section 34, they were found to be",
"guilty under section 326 of IPC, 1860.240.",
"Sections 34, 114 and 149 of the IPC, 1860 provide for criminal liability viewed from",
"different angles as regards actual participants, accessories and men actuated by a",
common object or a common intention; and as explained by five Judge Constitution,
"Bench of in Willie Slavey v The State of MP,241. the charge is a rolled-up one involving",
the direct liability and the constructive liability without specifying who are directly liable,
and who are sought to be made constructively liable.242. But before a court can convict,
"a person under section 302, read with section 34, of the Indian Penal Code, it should",
come to a definite conclusion that the said person had a prior concert with one or more,
"other persons, named or unnamed, for committing the said offence. A few illustrations",
will bring out the impact of section 34 on different situations.,
"(1) A, B, C and D are charged under section 302, read with section 34, of the Indian",
"Penal Code, for committing the murder of E. The evidence is directed to establish that",
the said four persons have taken part in the murder.,
"(2) A, B, C and D and unnamed others are charged under the said sections. But",
"evidence is adduced to prove that the said persons, along with others, named or",
"unnamed, participated jointly in the commission of that offence.",
"(3) A, B, C and D are charged under the said sections. But the evidence is directed to",
"prove that A, B, C and D, along with 3 others, have jointly committed the offence. As",
"regards the third illustration, a Court is certainly entitled to come to the conclusion that",
"one of the named accused is guilty of murder under section 302, read with section 34,",
"of the Indian Penal Code, though the other three named accused are acquitted, if it",
"accepts the evidence that the said accused acted in concert along with persons,",
"named or unnamed, other than those acquitted, in the commission of the offence. In",
the second illustration the Court can come to the same conclusion and convict one of,
the named accused if it is satisfied that no prejudice has been caused to the accused,
by the defect in the charge. But in the first illustration the Court certainly can convict,
two or more of the named accused if it accepts the evidence that they acted conjointly,
in committing the offence. But what is the position if the Court acquits 3 of the 4,
accused either because it rejects the prosecution evidence or because it gives the,
"benefit of doubt to the said accused? Can it hold, in the absence of a charge as well as",
"evidence, that though the three accused are acquitted, some other unidentified persons",
"acted conjointly along with one of the named persons? If the Court could do so, it",
would be making out a new case for the prosecution: it would be deciding contrary to,
the evidence adduced in the case. A Court cannot obviously make out a case for the,
prosecution which is not disclosed either in the charge or in regard to which there is no,
basis in the evidence. There must be some foundation in the evidence that persons,
other than those named have taken part in the commission of the offence and if there,
is such a basis the case will be covered by the third illustration.243. Absence of charge,
under section 34 is not fatal by itself unless prejudice to the accused is shown.244.,
[s 34.13] Alternative Charge.—,
"The trial Court framed charges under sections 302/307 r/w 120B IPC, 1860 and an",
"alternative charge under sections 302/307 r/w section 34 IPC, 1860 without opining on",
"the alternative charge, convicted the accused under sections 302/307 r/w 120B, The",
contention that accused is deemed to be acquitted for charges under sections,
"302/307/34 IPC, 1860 of the charge of common intention of committing murder and",
"there was no appeal by the State against the deemed acquittal against that charge, it",
was not open to the High Court to alter or modify the conviction under sections,
"302/307/34 IPC, 1860, repelled by holding that charges had indeed been framed in the",
alternative and for cognate offences having similar ingredients as the main allegation,
of murder.245.,
"[s 34.14] Distinction between sections 34 and 149, IPC, 1860.—",
Though both these sections relate to the doctrine of vicarious liability and sometimes,
overlap each other there are substantial points of difference between the two. They are,
as under:—,
"(i) Section 34 does not by itself create any specific offence, whereas section 149,",
"IPC, 1860, does so (see discussion under sub-para ""principle"" ante).",
"(ii) Some active participation, especially in a crime involving physical violence is",
"necessary under section 34 but section 149, IPC, 1860, does not require it and",
the liability arises by reason of mere membership of the unlawful assembly with,
a common object and there may be no active participation at all in the,
preparation and commission of the crime.,
"(iii) Section 34 speaks of common intention but section 149, IPC, 1860,",
contemplates common object which is undoubtedly wider in its scope and,
amplitude than intention. If the offence committed by a member of an unlawful,
assembly is in prosecution of the common object of the unlawful assembly or,
such as the members of that assembly knew to be likely to be committed in,
"prosecution of the common object, all other members of the unlawful assembly",
"would be guilty of that offence under section 149, IPC, 1860, although they may",
not have intended to do it or participated in the actual commission of that,
offence.246.,
(iv) Section 34 does not fix a minimum number of persons who must share the,
"common intention, whereas section 149, IPC, 1860, requires that there must be",
at least five persons who must have the same common object (see also,
"discussion under sub-head ""Sections 34 and 149"" under section 149, IPC, 1860,",
infra).247.,
[s 34.15] Effect of conviction or acquittal of one or more or others.—,
Several persons involved in a criminal adventure may be guilty of different offences,
depending upon their respective acts. If the act is done in furtherance of their common,
"intention, all of them become equally liable for the act. Similarly, if they are members of",
"an unlawful assembly, an act done by any one in prosecution of the common object or",
"any act which the members knew could happen in such prosecution, every member",
would be liable for the act. If any one of them happens to be wrongly acquitted and no,
"appeal has been filed against it, it would not ipso facto impede the conviction of others.",
"Likewise, the conviction of any one or more them does not automatically result in the",
conviction of others.248.,
[s 34.16] Substitution of conviction from section 149 to section 34.—,
"Following some earlier rulings,249. the Supreme Court has stated the law in the",
following terms:250.,
It is true that there was no charge under s. 302 read with s. 34... but the facts of the case,
are such that the accused could have been charged alternatively either under s. 302 read,
"with s. 149 or under s. 302 read with s. 34 and one of the accused having been acquitted,",
the conviction under s. 302/149 can be substituted with one under s. 302/34. No prejudice,
is likely to be caused to the accused whose appeal is being dismissed.251.,
[s 34.17] Robbery.—,
Provision under section 397 inevitably negates the use of the principles of constructive,
or vicarious liability engrafted under section 34. The sentence for offence under section,
"397 of the IPC, 1860 cannot be awarded to those of the members of the group of",
"dacoits who did not use any deadly weapon. A plain reading of section 397 of the IPC,",
1860 would make it clear that such guilt can be attributed only to that offender who,
uses any deadly weapon or causes grievous hurt to any person during course of the,
commission of the robbery. The provision postulates that only the individual act of,
"accused will be relevant to attract section 397 of the IPC, 1860.252. In a sudden quarrel",
"over payment, person sitting inside the car pulled the petrol pump attendant into the",
car and drove away. The occupants of the car escaped punishment. It was held that the,
driver alone could not be held guilty of the offence of robbery and abduction with the,
aid of section 34.253. In a serial highway robbery and murder in which same persons,
"were involved, it was found as a fact that the self-same two persons were seen by a",
witness together in a different town before the occurrence. One of their victims,
survived and he also testified that he saw both of them together. Both of them were,
held to be guilty of successive crimes and convicted for murder with the aid of section,
34 without any need of knowing who played what part.254.,
[s 34.18] Mob action.—,
A mob of 200 persons armed with different weapons came to the field with the object,
of preventing the prosecution party from carrying on transplantation operations. Some,
of them caused death of a person at the spur of the moment for some spot reason.,
The whole mob could not be convicted for it.255 A mob chased the members of the,
rival community up to their locality. A part of the mob started burning their houses and,
the other part kept on chasing and caused deaths. The court said that the two parts of,
the mob could not be said to have shared the intention of burning or causing death.256.,
[s 34.19] Misappropriation.—,
Where the accused the Sarpanch and Secretary of a Gram Panchayat misappropriated,
the funds of the Panchayat and the circumstances and evidence showed patent,
"dishonest intention on the part of the accused persons, the conviction and sentence of",
"the accused under section 409/34, was not interfered with.257.",
[s 34.20] Rape cases.—,
In Gang Rape it is not necessary that the intention should exists from the beginning. It,
can be developed at the last minute before the commission of the offence.258.,
[s 34.21] Exhortation.—,
One of the accused exhorted while the other immobilised the deceased and the third,
accused delivered the fatal injuries. It was held that each one shared a common,
intention.259. Section 34 was held to have been rightly applied where two of the,
accused persons caught hold of the deceased and on their exhortation the third,
accused shot him on the right temple resulting in death.260.,
Mere exhortation by one of the accused persons saying that they would not leave the,
victim till he died was held to be not a basis for roping into the common intention of the,
others.261. The only allegation against the appellant was her exhortation. Enmity,
"between the family of the deceased and that of the accused proved. In such a situation,",
"where the eye witnesses have not narrated any specific role carried by the appellant,",
rather the specific role of assaulting with the sword has been attributed to the co-,
"accused, it cannot be ruled out that the name of the appellant has been added due to",
enmity with the main accused.262.,
[s 34.22] Pre-conceived common intention.—,
Only when a court with some certainty holds that a particular accused must have pre-,
conceived or pre-meditated the result which ensued or acted in concert with others in,
"order to bring about that result, that section 34 may be applied.263.",
[s 34.23] Common intention and private defence.—,
If two or more persons had common intention to commit murder and they had,
"participated in the acts done by them in furtherance of that common intention, all of",
"them would be guilty of murder. Section 96 IPC, 1860 says that nothing is an offence",
which is done in the exercise of the right of private defence. Though all the accused,
would be liable for committing the murder of a person by doing an act or acts in,
"furtherance of the common intention, they would not be liable for the act or acts if they",
had the right of private defence to voluntarily cause death of that person. Common,
"intention, therefore, has relevance only to the offence and not to the right of private",
defence. What would be an offence by reason of constructive liability would cease to,
be one if the act constituting the offence was done in exercise of the right of private,
defence.,
If the voluntary causing of death is not permissible under the right of private defence,
"under section 96, then the common intention in regard thereto will lead to the result",
that the accused persons must be held guilty by reason of constructive liability under,
"the relevant section (in this case section 304 Part I IPC, 1860). If, however, the common",
intention was only to commit an act which was permissible within the confines of s. 96,
"read with s. 98, then constructive liability under section 34 cannot be said to have been",
"accrued to the accused. If the right of private defence was exceeded by some persons,",
the guilt of each of the accused proved to have exceeded the right of private defence,
would have to be dealt with separately. The instant case came under the former,
"situation, and hence, such persons were guilty under section 304, Part I IPC, 1860.",
"They, therefore, must be held to have had a common object for causing death of P.",
They were sentenced to undergo ten years' rigorous imprisonment each.264.,
"170. Subs. by Act 27 of 1870, section 1, for section 34.",
"171. Goudappa v State of Karnataka, (2013) 3 SCC 675 [LNIND 2013 SC 177] ; Satyavir Singh",
"Rathi v State Thr. CBI, AIR 2011SC 1748 : (2011) 6 SCC 1 [LNIND 2011 SC 475] : 2011 Cr LJ.",
"2908 ; Abdul Sayeed v State of MP, 2010 (10) SCC 259 [LNIND 2010 SC 872] : 2010(9) Scale 379",
: (2010) 3 SCC (Cr) 1262.,
"172. Kuria v State of Rajasthan, AIR 2013 SC 1085 [LNIND 2012 SC 678] : (2012) 10 SCC 433",
[LNIND 2012 SC 678] : 2012 Cr LJ 4707 (SC).,
"173. Queen v Gora Chand Gope, (1866) 5 South WR (Cr) 45.",
"174. Ashok Kumar v State of Punjab, AIR 1977 SC 109 : (1977)1 SCC 746 .",
175. Babulal Bhagwan Khandare v State Of Maharashtra AIR 2005 SC 1460 [LNIND 2004 SC,
1203] : (2005) 10 SCC 404 [LNIND 2004 SC 1203] .,
"176. Barendra Kumar Ghosh v King Emperor, AIR 1925 PC 1 [LNIND 1924 BOM 206] .",
"177. Lallan Rai v State of Bihar, AIR 2003 SC 333 [LNIND 2002 SC 705] : 2003 Cr LJ 465 : (2003)",
1 SCC 268 [LNIND 2002 SC 705] .,
"178. Virendra Singh v State of MP, (2010) 8 SCC 407 [LNIND 2010 SC 723] : (2010) 3 SCC (Cr)",
893 : 2011 Cr LJ 952 .,
"179. Garib Singh v State of Punjab, 1972 Cr LJ 1286 : AIR 1973 SC 460 [LNIND 1972 SC 187] .",
"See also Yogendra v State of Bihar, 1984 Cr LJ 386 (SC).",
"180. Ram Tahal v State of UP, 1972 Cr LJ 227 : AIR 1972 SC 254 [LNIND 1971 SC 579] relied in",
"Thoti Manohar v State of AP,2012, (7) Scale 215 : (2012) 7 SCC 723 [LNIND 2012 SC 365] : 2012",
"Cr LJ 3492 ; see also Amar Singh v State of Haryana, 1973 Cr LJ 1409 : AIR 1973 SC 2221 ;",
"Dharam Pal v State of UP, 1975 Cr LJ 1666 : AIR 1975 SC1917 [LNIND 1975 SC 314] ; Amir",
"Hussain v State of UP, 1975 Cr LJ 1874 : AIR 1975 SC 2211 State of Rajasthan v ArjunSingh,",
(2011) 9 SCC 115 [LNIND 2011 SC 855] : AIR 2011 SC 3380 [LNIND 2011 SC 855] .,
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"182. Killer Thiayagu v. State, AIR 2017 SC 612 [LNINDORD 2017 SC 1134] .",
"183. Killer Thiayagu v. State, AIR 2017 SC 612 [LNINDORD 2017 SC 1134] .",
"184. Shyamal Ghosh v State of WB, (2012) 7 SCC 646 [LNIND 2012 SC 397] : 2012 Cr LJ 3825 :",
"AIR 2012 SC 3539 [LNIND 2012 SC 397] ; NandKishore v State of MP, AIR 2011 SC 2775 [LNIND",
"2011 SC 622] : (2011) 12 SCC 120 [LNIND 2011 SC 622] ; Baldeo Singh v State of Bihar, AIR 1972",
"SC 464 : 1972 Cr LJ 262 ; Rana Pratap v State of Haryana, AIR 1983 SC 680 [LNIND 1983 SC 157]",
": 1983 Cr LJ 1272 : (1983) 3 SCC 327 [LNIND 1983 SC 157] ,",
"185. Syed Yousuf Hussain v State of AP, AIR 2013 SC 1677 [LNIND 2013 SC 275] : 2013 Cr LJ",
"2172 : 2013 (5) Scale 346 [LNIND 2013 SC 275] , (2013)4 SCC 517 [LNIND 2013 SC 275] ; Suresh",
"v State of UP, 2001 (3) SCC 673 [LNIND 2001 SC 623] ; Lallan Rai v State of Bihar, AIR 2003 SC",
333 [LNIND 2002 SC 705] : 2003 Cr LJ 465 : (2003) 1 SCC 268 [LNIND 2002 SC 705] .,
"186. Sudip Kr. Sen v State of WB, AIR 2016 SC 310 [LNIND 2016 SC 10] : 2016 Cr LJ 1121 .",
"187. Nagesar v State of Chhatisgarh, 2014 Cr LJ 2948 .",
"188. Barendra Kumar Ghosh v King Emperor, AIR 1925 PC 1 [LNIND 1924 BOM 206] .",
"189. Mehbub Shah v King-Emperor, AIR 1945 PC 148 .",
190. Supra.191.Supra.,
"192. Pandurang v State of Hyderabad, AIR 1955 SC 216 [LNIND 1954 SC 171] : 1955 Cr LJ 572 .",
"193. Shyamal Ghosh v State of WB, (2012) 7 SCC 646 [LNIND 2012 SC 397] : 2012 Cr LJ 3825 :",
"AIR 2012 SC 3539 [LNIND 2012 SC 397] NandKishore v State of MP, AIR 2011 SC 2775 [LNIND",
2011 SC 622] : (2011) 12 SCC 120 [LNIND 2011 SC 622] .,
"194. Vijendra Singh v State of UP, AIR 2017 SC 860 [LNIND 2017 SC 16] ; Bharwad Mepa Dana v",
"State of Bombay, AIR 1960SC 289.",
"195. Virendra Singh v State of MP, (2010) 8 SCC 407 [LNIND 2010 SC 723] : (2010) 3 SCC (Cr)",
893 : 2011 Cr LJ 952 .,
"196. Shreekantiah Ramayya, (1954) 57 Bom LR 632 (SC); Shiv Prasad, AIR 1965 SC 264 [LNIND",
1964 SC 51] : (1965) 1 CrLJ 249 .,
"197. Baba Lodhi v State of UP, (1987) 2 SCC 352 : AIR 1987 SC 1268 : 1987 Cr LJ 1119 ; MA",
"AbdullaKunhi v State of Kerala, AIR 1991 SC 452 [LNIND 1991 SC 24] : 1991 Cr LJ 525 : (1991) 2",
"SCC 225 [LNIND 1991 SC 24] ; Noor v State ofKarnataka, (2007) 12 SCC 84 [LNIND 2007 SC 639]",
: (2008) 2 SCC Cr 221 : 2007 Cr LJ 4299 .,
"198. Tara Devi v State of UP, (1990) 4 SCC 144 : AIR 1991 SC 342 . See also Hem Raj v State",
"Delhi Admn., 1990 Cr LJ 2665 : 1990 Supp SCC 291 : AIR 1990 SC 2252 , one of the accused",
"alone proved to have given the fatal blow, the participation of others not proved, others not",
convicted under section 302/34.,
"199. Bishan Singh v State of Punjab, 1983 Cr LJ 973 : AIR 1983 SC 748 : 1983 Cr LJ (SC) 327 :",
"1983 SCC (Cr) 578; Ghanshyam v State of UP, 1983 Cr LJ 439 (SC) : AIR 1983 SC 293 : (1982) 2",
SCC 400 .,
"200. Dasrathlal v State of Gujarat, 1979 Cr LJ 1078 (SC) : AIR 1979 SC 1342 . See further",
"Rangaswami v State of TN, AIR 1989 SC 1137 : 1989 Cr LJ 875 : 1989 SCC (Cr) 617 : 1989 Supp",
"(1) SCC 686 . Gulshan v State of Punjab, 1989 Cr LJ 120 : AIR 1988 SC 2110 : 1990 Supp SCC",
682 .,
"201. Jarnail Singh v State of Punjab, (1996) 1 SCC 527 [LNIND 1995 SC 1172] : AIR 1996 SC 755",
[LNIND 1995 SC 1172] : 1996 Cr LJ 1139 .,
202. Maharashtra State Electricity Distribution Co Ltd v Datar Switchgerar Ltd (2010) 10 SCC 479,
"[LNIND 2010 SC 979] : 2011 Cr LJ 8 ; Chandrakant Murgyappa Umrani v State of Maharashtra,",
"1998 SCC (Cr) 698; Hamlet @ Sasi. v State of Kerala, (2003) 10 SCC 108 [LNIND 2003 SC 688] ;",
"Surendra Chauhan v State of MP, (2000) 4 SCC 110 [LNIND 2000 SC 515] : AIR 2000 SC 1436",
"[LNIND 2000 SC 515] ; Ramjee Rai v State of Bihar, (2006) 13 SCC 229 [LNIND 2006 SC 647] :",
"2006 Cr LJ 4630 ; Prakash v State of MP, (2006) 13 SCC 508 [LNIND 2006 SC 1071] : 2007 Cr LJ",
"798 ; Sham Shankar Kankaria v State of Maharashtra, (2006) 13 SCC 165 [LNIND 2006 SC 684] ;",
"Manik Das v State of Assam, (2007) 11 SCC 403 [LNIND 2007 SC 769] : AIR 2007 SC 2274",
"[LNIND 2007 SC 769] , participation proved.",
"203. Chacko v State of Kerala, (2004) 12 SCC 269 [LNIND 2004 SC 86] : AIR 2004 SC 2688",
"[LNIND 2004 SC 86] ; Abdul Wahid v State of Rajasthan, (2004) 11 SCC 241 [LNIND 2004 SC",
"1454] : AIR 2004 SC 3211 [LNIND 2004 SC 1454] : 2004 Cr LJ 2850 ; Janak Singh v State of UP,",
(2004) 11 SCC 385 [LNIND 2004 SC 515] : AIR 2004 SC 2495 [LNIND 2004 SC 515] : 2004 Cr LJ,
"2533 ; Parsuram Pandey v State of Bihar, 2005 SCC (Cr) 113 : AIR 2004 SC 5068 [LNIND 2004 SC",
1075] .,
"204. Suresh Sakharam Nangare v State of Maharashtra, 2012 (9) Scale 245 [LNIND 2012 SC 574]",
: (2012) 9 SCC 249 [LNIND 2012 SC 574] .,
"205. Raju v State of Chhatisgarh, 2014 Cr LJ 4425 .",
"206. Shreekantiah Ramayya v State of Bombay, AIR 1955 SC 287 [LNIND 1954 SC 180] : 1955",
SCR (1) 1177 .,
"207. Parasa Raja Manikyala Rao v State of AP, (2003) 12 SC 306 : AIR 2004 SC 132 [LNIND 2003",
"SC 888] : 2004 Cr LJ 390 ; Virendra Singh v State of MP, (2010) 8 SCC 407 [LNIND 2010 SC 723] :",
"(2010) 3 SCC (Cr) 893 : 2011 Cr LJ 952 ; Jaikrishnadas Desai, (1960) 3 SCR 319 [LNIND 1960 SC",
"79] : AIR 1960 SC 889 [LNIND 1960 SC 79] : 1960 Cr LJ 1250 ; Dani Singh v State of Bihar, AIR",
2004 SC 4570 [LNIND 2004 SC 1490] : (2004) 13 SCC 203 [LNIND 2004 SC 1490] .,
"208. Suresh v State of UP, 2001 (3) SCC 673 [LNIND 2001 SC 623] : AIR 2001 SC 1344 [LNIND",
"2001 SC 623] ; Ramaswami Ayyangar v State of TN, AIR 1976 SC 2027 [LNIND 1976 SC 128] :",
1976 Cr LJ 1536 (the presence of those who in one way or the other facilitate the execution of,
"the common design itself tantamounts to actual participation in the ""criminal act"").",
"209. Rajkishore Purohit v State of Madhya Pradesh, AIR 2017 SC 3588 [LNIND 2017 SC 362] .",
"210. Parasa Raja Manikyala Rao v State of AP, (2003) 12 SC 306 : AIR 2004 SC 132 [LNIND 2003",
"SC 888] : 2004 Cr LJ 390 , citing Shankarlal Kacharabhai, AIR 1965 SC 1260 [LNIND 1964 SC",
230] : 1965 (2) Cr LJ 226 .,
"211. Dharnidhar v State of UP, (2010) 7 SCC 759 [LNIND 2010 SC 584] : 2010 (7) Scale 12 ;",
"Shyamal Ghosh v State of WB, (2012) 7 SCC 646 [LNIND 2012 SC 397] : 2012 Cr LJ 3825 : AIR",
2012 SC 3539 [LNIND 2012 SC 397] .,
"212. Amrik Singh v State of Punjab, 1972 Cr LJ 465 (SC) : (1972) 4 SCC (N) 42 (SC).",
"213. Krishna Govind Patil v State of Maharashtra, AIR 1963 SC 1413 [LNIND 1963 SC 12] : 1964",
(1) SCR 678 [LNIND 1963 SC 12] : 1963 Cr LJ 351 (SC); State of Maharashtra v Jagmohan Singh,
"Kuldip Singh Anand, (2004) 7 SCC 659 [LNIND 2004 SC 862] : AIR 2004 SC 4412 [LNIND 2004 SC",
"862] , the prosecution is not required to prove in every case a pre-arranged plan or prior concert.",
"Preetam Singh v State of Rajasthan, (2003) 12 SCC 594 , prior concert can be inferred, common",
intention can develop on the spot.,
"214. Harbans Nonia v State of Bihar, AIR 1992 SC 125 : 1992 Cr LJ 105 .",
"215. Dharam Pal v State of UP, AIR 1995 SC 1988 [LNIND 1995 SC 198] : 1995 Cr LJ 3642 .",
"216. Hanuman Prasad v State of Rajasthan, (2009) 1 SCC 507 [LNIND 2008 SC 2256] : (2009) 1",
"SCC Cr 564, the Supreme Court distinguishes common intention from similar intention and also",
explains the meaning and applicability of the expression.,
"217. Dajya Moshaya Bhil v State of Maharashtra, 1984 Cr LJ 1728 : AIR 1984 SC 1717 : 1984",
Supp SCC 373 . The Supreme Court applied the distinction between common intention and,
"similar intention in State of UP v Rohan Singh, (1996) Cr LJ 2884 (SC) : AIR 1996 SCW 2612 . In",
"Mohan Singh v State of Punjab, AIR 1963 SC 174 [LNIND 1962 SC 118] it was held that persons",
having similar intention which is not the result of pre-concerted plan cannot be held guilty for,
"the ""criminal act"" with the aid of Section 34.",
"218. Parichhat v State of MP, 1972 Cr LJ 322 : AIR 1972 SC 535 ; Amrik Singh v State of Punjab,",
"1972 Cr LJ 465 (SC). Followed in Khem Karan v State of UP, 1991 Cr LJ 2138 All where each",
"accused hit differently at the behest of one of them, hence, no common intention.",
"219. Mitter Sen v State of UP, 1976 Cr LJ 857 : AIR 1976 SC 1156 ; see also Gajjan Singh v State",
"of Punjab, 1976 Cr LJ 1640 : AIR 1976 SC 2069 [LNIND 1976 SC 72] ; Jarnail Singh v State of",
"Punjab, 1982 Cr LJ 386 : AIR 1982 SC 70 (SC).",
"220. Rambilas Singh v State of Bihar, AIR 1989 SC 1593 [LNIND 1989 SC 216] : (1989) 3 SCC 605",
[LNIND 1989 SC 216] : 1989 Cr LJ 1782 . The conviction under sub-sections 34/149 and 34/302,
was set aside.,
"221. Tripta v State of Haryana, AIR 1992 SC 948 : 1992 Cr LJ 3944 . See also Major Singh v State",
"of Punjab, AIR 2003 SC 342 [LNIND 2002 SC 742] : 2003 Cr LJ 473 : (2002) 10 SCC 60 [LNIND",
"2002 SC 742] ; Balram Singh v State of Punjab, AIR 2003 SC 2213 [LNIND 2003 SC 514] : (2003)",
SCC 286 .,
"222. Devaramani v State of Karnataka, (1995) 2 Cr LJ 1534 SC. See also Gopi Nath v State of UP,",
"AIR 2001 SC 2493 : 2001 Cr LJ 3514 ; Pal Singh v State of Punjab, AIR 1999 SC 2548 [LNIND",
"1999 SC 604] : 1999 Cr LJ 3962 ;Prem v Daula, AIR 1997 SC 715 [LNIND 1997 SC 64] : 1997 Cr",
"LJ 838 ; Muni Singh v State of Bihar, AIR 2002 SC 3640 ;Mahesh Mahto v State of Bihar, AIR 1997",
SC 3567 [LNIND 1997 SC 1103] : 1997 Cr LJ 4402 .,
"223. Lallan Rai v State of Bihar, AIR 2003 SC 333 [LNIND 2002 SC 705] : 2003 Cr LJ 465 : (2003)",
1 SCC 268 [LNIND 2002 SC 705] .,
"224. Narinder Singh v State of Punjab, AIR 2000 SC 2212 [LNIND 2000 SC 615] : 2000 Cr LJ 3462",
", Sheelam Ramesh v State ofAP, AIR 2000 SC 118 [LNIND 1999 SC 926] : 2000 Cr LJ 51 ; State of",
"Haryana v Bhagirath, AIR 1999 SC 2005 [LNIND 1999 SC 541] : 1999 CrLJ 2898 ; Asha v State of",
"Rajasthan, AIR 1997 SC 2828 [LNIND 1997 SC 844] : 1997 Cr LJ 3561 .",
"225. Satyavir Singh Rathi v State Thr. CBI, AIR 2011 SC 1748 [LNIND 2011 SC 475] : (2011) 6 SCC",
1 [LNIND 2011 SC 475] : 2011 Cr LJ 2908 .,
"226. Krishnan v State, (2003) 7 SCC 56 [LNIND 2003 SC 587] : AIR 2003 SC 2978 [LNIND 2003",
SC 587] : 2003 Cr LJ 3705 .,
"227. Rajkishore Purohit v State of MP, AIR 2017 SC 3588 [LNIND 2017 SC 362] .",
"228. Ajay Sharma v State of Rajasthan, AIR 1998 SC 2798 [LNIND 1998 SC 879] : 1998 Cr LJ",
"4599 . See also State of Karnatakav Maruthi, AIR 1997 SC 3797 : 1997 Cr LJ 4407 ; Bhupinder",
"Singh v State of Haryana, AIR 1997 SC642 : 1997 Cr LJ 958 .",
"229. State of UP v Balkrishna Das, AIR 1997 SC 225 [LNIND 1996 SC 1753] : 1997 Cr LJ 73 .",
"230. State of AP v M Sobhan Babu, 2011 (3) Scale 451 [LNIND 2010 SC 1219] : 2011 Cr LJ 2175",
(SC).,
"231. Rajkishore Purohit v State of MP, AIR 2017 SC 3588 [LNIND 2017 SC 362] ; State of AP v M.",
"Sobhan Babu, 2011 (3) Scale 451 [LNIND 2010 SC 1219] : 2011 Cr LJ 2175 (SC).",
"232. Kuria v State of Rajasthan, (2012) 10 SCC 433 [LNIND 2012 SC 678] : 2012 Cr LJ 4707 (SC);",
"Hemchand Jha v State of Bihar, (2008) 11 SCC 303 [LNIND 2008 SC 1299] : (2008) Cr LJ 3203 ;",
"Shyamal Ghosh v State of WB, (2012) 7 SCC 646 [LNIND 2012 SC 397] : 2012 Cr LJ 3825 : AIR",
"2012 SC 3539 [LNIND 2012 SC 397] ; Nand Kishore v State of MP, AIR 2011 SC 2775 [LNIND",
2011 SC 622] : (2011) 12 SCC 120 [LNIND 2011 SC 622] .,
"233. Bengai Mandal v State of Bihar, AIR 2010 SC 686 [LNIND 2010 SC 39] : (2010) 2 SCC 91",
[LNIND 2010 SC 39] .,
"234. Maqsoodan v State of UP, 1983 Cr LJ 218 : AIR 1983 SC 126 [LNIND 1982 SC 199] : (1983)",
"1 SCC 218 [LNIND 1982 SC 199] ; Aizaz v State of UP, (2008) 12 SCC 198 [LNIND 2008 SC 1621]",
": 2008 Cr LJ 4374 , Lala Ram v State of Rajasthan, (2007) 10 SCC 225 [LNIND 2007 SC 803] :",
"(2007) 3 SCC Cr 634, Harbans Kaur v State of Haryana, AIR 2005 SC 2989 [LNIND 2005 SC 211] :",
"2005 Cr LJ 2199 (SC), Dani Singh v State of Bihar, 2004 (13) SCC 203 [LNIND 2004 SC 1490] :",
2004 Cr LJ 3328 (SC).,
"235. Ram Tahal v State of UP, 1972 Cr LJ 227 : AIR 1972 SC 254 [LNIND 1971 SC 579] ; see also",
"Nitya Sen v State of WB, 1978 Cr LJ 481 : AIR 1978 SC 383 ; Sivam v State of Kerala, 1978 Cr LJ",
"1609 : AIR 1978 SC 1529 ; Jagdeo Singh v State of Maharashtra, 1981 Cr LJ 166 : AIR 1981 SC",
"648 (SC); Aher Pitha Vajshi v State of Gujarat, 1983 Cr LJ 1049 : AIR 1983 SC 599 [LNIND 1983",
"SC 98] : 1983 SCC (Cr) 607; Manju Gupta v MS Paintal, AIR 1982 SC 1181 [LNIND 1982 DEL 128] :",
1982 Cr LJ 1393 : (1982) 2 SCC 412 . Another instance of failed prosecution under the Act is,
"Harendra Narayan Singh v State of Bihar, AIR 1991 SC 1842 [LNIND 1991 SC 307] : 1991 Cr LJ",
"2666 . Ghana Pradhan v State of Orissa, AIR 1991 SC 1133 : 1991 Cr LJ 1178 . Common intention",
not established even when the two accused were striking the same person in their own ways.,
"236. Raju @ Rajendra v State of Rajasthan, 2013 Cr LJ 1248 (SC) : (2013) 2 SCC 233 [LNIND",
2013 SC 25] .,
"237. Jhinku Nai v State of UP, AIR 2001 SC 2815 [LNIND 2001 SC 1587] at p. 2817. See also",
"Jagga Singh v State of Punjab, (2011) 3 SCC 137 [LNINDORD 2011 SC 288] : AIR 2011 SC 960",
[LNINDORD 2011 SC 288] .,
"238. Maharashtra State Electricity Distribution Co Ltd v Datar Switchgerar Ltd, (2010) 10 SCC 479",
[LNIND 2010 SC 979] : 2011 Cr LJ 8 : (2010) 12 SCR 551 : (2011) 1 SCC (Cr) 68.,
"239. Darbara Singh v State of Punjab, 2012 (8) Scale 649 [LNIND 2012 SC 545] : (2012) 10 SCC",
"476 [LNIND 2012 SC 545] ; Gurpreet Singh v State of Punjab, AIR 2006 SC 191 [LNIND 2005 SC",
887] : (2005) 12 SCC 615 [LNIND 2005 SC 887] .,
"240. Vijay Singh v State of MP, 2014 Cr LJ 2158 .",
"241. Willie Slavey v The State of MP, 1955 (2) SCR 1140 [LNIND 1955 SC 90] at p 1189 : AIR",
1956 SC 116 [LNIND 1955 SC 90] .,
"242. Santosh Kumari v State of J&K, (2011) 9 SCC 234 [LNIND 2011 SC 901] : AIR 2011 SC 3402",
[LNIND 2011 SC 901] : (2011) 3 SCC (Cr) 657.,
"243. Krishna Govind Patil v State of Maharashtra, AIR 1963 SC 1413 [LNIND 1963 SC 12] : 1963",
Cr LJ 351 relied in Chinnam Kameswara Rao v State of AP 2013 Cr LJ 1540 : JT 2013 (2) SC 398,
[LNIND 2013 SC 57] : 2013 (1) Scale 643 [LNIND 2013 SC 57] .,
"244. Anil Sharma v State of Jharkhand, (2004) 5 SCC 679 [LNIND 2004 SC 590] : AIR 2004 SC",
2294 [LNIND 2004 SC 590] : 2004 Cr LJ 2527 .,
"245. Satyavir Singh Rathi v State Thr. CBI, AIR 2011 SC 1748 [LNIND 2011 SC 475] : (2011) 6 SCC",
1 [LNIND 2011 SC 475] : 2011 Cr LJ 2908 .,
"246. Barendra Kumar Ghosh v Emp., AIR 1925 PC 1 [LNIND 1924 BOM 206] (7) : 26 Cr LJ 431;",
"Nanak Chand v State of Punjab, 1955 Cr LJ 721 (SC); Anam Pradhan v State, 1982 Cr LJ 1585",
"(Ori). Chittaramal v State of Rajasthan, (2003) 2 SCC 266 [LNIND 2003 SC 14] : AIR 2003 SC 796",
"[LNIND 2003 SC 14] : 2003 Cr LJ 889 , points of similarity and distinction explained in the case.",
"247. Virendra Singh v State of MP, (2010) 8 SCC 407 [LNIND 2010 SC 723] : (2010) 3 SCC (Cr)",
893 : 2011 Cr LJ 952 .,
"248. Surinder Singh v State of Punjab, (2003) 10 SCC 66 [LNIND 2003 SC 652] .",
"249. Lachman Singh v The State, 1952 SCR 839 [LNIND 1952 SC 21] : AIR 1952 SC 167 [LNIND",
"1952 SC 21] : 1952 Cr LJ 863 and Karnail Singh vState of Punjab, 1954 SCR 904 [LNIND 1953 SC",
126] : AIR 1954 SC 204 [LNIND 1953 SC 126] : 1954 Cr LJ 580 .,
250. Sangappa Sanganabasappa v State of Karnataka (2010) 11 SCC 782 [LNIND 2010 SC 866] :,
"(2011) 1 SCC (Cr) 256; BaitalSingh v State of UP, AIR 1990 SC 1982 : 1990 Cr LJ 2091 : 1990",
"Supp SCC 804 ; Ramdeo RaoYadav v State of Bihar, AIR 1990 SC 1180 [LNIND 1990 SC 126] :",
1990 Cr LJ 1983 .,
"251. Dahari vState of UP, AIR 2013 SC 308 2012 (10) Scale 160, (2012)10 SCC 256 [LNIND 2012",
"SC 638] ; Jivan Lal v State ofMP, 1997 (9) SCC 119 [LNIND 1996 SC 2679] ; and Hamlet @ Sasi v",
"State of Kerala, AIR 2003 SC 3682 [LNIND 2003 SC 688] ; Gurpreet Singh vState of Punjab, AIR",
"2006 SC 191 [LNIND 2005 SC 887] ; Sanichar Sahni v State of Bihar, AIR 2010 SC 3786 [LNIND",
"2009 SC 1350] ; S Ganesan vRama Raghuraman, 2011 (2) SCC 83 [LNIND 2011 SC 5] ; Darbara",
"Singh v State of Punjab, 2012 (8) Scale 649 [LNIND 2012 SC 545] : (2012)10 SCC 476 [LNIND",
2012 SC 545] : JT 2012 (8) SC 530 [LNIND 2012 SC 545] .,
"252. Manik Shankarrao Dhotre v State of Maharashtra, 2008 Cr LJ 1505 (Kar); State of",
"Maharashtra vMahipal Singh Satyanarayan Singh, 1996 Cr LJ 2485 .",
"253. Brahmjit Singh v State, 1992 Cr LJ 408 (Del).",
"254. Prem v State of Maharashtra, 1993 Cr LJ 1608 (Bom).255.Dukhmochan Pandey v State of",
"Bihar, AIR 1998 SC 40 [LNIND 1997 SC 1255] : 1998 Cr LJ 66 .",
"256. State of Gujarat v Chandubhai Malubhai Parmar, AIR 1997 SC 1422 [LNIND 1997 SC 627] :",
1997 Cr LJ 1909 (SC).,
"257. Ghoura Chandra Naik v State of Orissa, 1992 Cr LJ 275 (Ori). See Rameshchandra Bhogilal",
"Patel vState Of Gujarat, 2011 Cr LJ 1395 (Guj) (Section 420/34).",
"258. Dev Cyrus Colabawala v State of Maharashtra, 2010 Cr LJ 758 (Bom).",
"259. Atambir Singh v State of Delhi, 2016 Cr LJ 568 (Del).",
"260. Vinay Kumar Rai v State of Bihar, (2008) 12 SCC 202 [LNIND 2008 SC 1646] : 2008 Cr LJ",
4319 : AIR 2008 SC 3276 [LNIND 2008 SC 1646] .,
"261. Nagaraja v State of Karnataka, (2008) 17 SCC 277 [LNIND 2008 SC 2484] : AIR 2009 SC",
"1522 [LNIND 2008 SC 2484] : one accused struck onthe road with an iron rod, two others used",
"fists and kicks, there was nothing more common, the twocould be convicted under section 323.",
See also Mohan Singh v State of MP AIR 1999 SC 883 [LNIND 1999 SC 69] : (1999) 2 SCC 428,
"[LNIND 1999 SC 69] , Abdul Wahid v State of Rajasthan, AIR 2004 SC 3211 [LNIND 2004 SC 1454]",
": (2004) 11 SCC 241 [LNIND 2004 SC 1454] ; AjaySharma v State of Rajasthan, AIR 1998 SC 2798",
[LNIND 1998 SC 879] : (1999) 1 SCC 174 [LNIND 1998 SC 879] .,
"262. Chandra Kaur v State of Rajasthan, 2016 Cr LJ 3346 : AIR 2016 SC 2926 [LNINDU 2015 SC",
139] .,
263. Suresh v State of UP AIR 2001 SC 1344 [LNIND 2001 SC 623] : (2001) 3 SCC 673 [LNIND,
"2001 SC 623] quoted from Shatrughan Patar vEmperor. See also Sewa Ram v State of UP, 2008",
"Cr LJ 802 : AIR 2008 SC682 [LNIND 2007 SC 1452] ; Abaram v State of MP, (2007) 12 SCC 105",
[LNIND 2007 SC 546] : (2008) 2 SCC Cr 243 : 2007 Cr LJ 2743 .,
"264. Bhanwar Singh v State of MP, (2008) 16 SCC 657 [LNIND 2008 SC 1246] : AIR 2009 SC 768",
"[LNIND 2008 SC 1246] ; Vajrapu Sambayya Naidu vState of AP, AIR 2003 SC 3706 [LNIND 2003",
SC 176] : (2004) 10 SCC 152 [LNIND 2003 SC 176] .,
THE INDIAN PENAL CODE,
CHAPTER II GENERAL EXPLANATIONS,
THIS Chapter is for the most part an elaborate interpretation clause. It is a key to the,
interpretation of the whole Code. The leading terms used are here defined and,
"explained and the meanings thus, announced are steadily adhered to throughout the",
subsequent chapters.,
[s 35] When such an act is criminal by reason of its being done with a criminal,
knowledge or intention.,
"Whenever an act, which is criminal only by reason of its being done with a criminal",
"knowledge or intention, is done by several persons, each of such persons who joins in",
the act with such knowledge or intention is liable for the act in the same manner as if,
the act were done by him alone with that knowledge or intention.,
COMMENT—,
The preceding section provided for a case in which a criminal act was done by several,
persons in furtherance of the common intention of all. Under this section several,
persons who actually perform the act must be shown to have the particular intent or,
"knowledge, if the act is criminal only by reason of its being done with a criminal",
"knowledge or intention. If several persons, having one and the same criminal intention",
"or knowledge, jointly commit murder or an assault, each is liable for the offence as if he",
"has acted alone; but if several persons join in an act, each having a different intention",
"or knowledge from the others, each is liable according to his own criminal intention or",
"knowledge, and he is not liable further. If an act which is an offence in itself and",
without reference to any criminal knowledge or intention on the part of the doers is,
"done by several persons, each of such persons is liable for the offence.",
Neither section 34 nor this section provides that those who take part in the act are,
jointly liable for the same offence. They merely provide that each of the performers,
shall be liable for the act in the same manner as if the act were done by him alone. In,
"this section also, the responsibility is shared by each offender individually if the act",
which is criminal only by reason of certain criminal knowledge or intention is done by,
each person sharing that knowledge or intention.265. A mere look at that section shows,
that if the act alleged against these accused becomes criminal on account of their,
sharing common knowledge about the defective running of Plant at Bhopal by the,
remaining accused who represented them on the spot and who had to carry out their,
directions from them and who were otherwise required to supervise their activity.,
Section 35 of the Indian Penal Code could at least prima facie be invoked against,
"accused 2, 3, 4 and 12 to be read with section 304-A Indian Penal Code.266.",
"265. Afrahim Sheikh v State of WB, AIR 1964 SC 1263 [LNIND 1964 SC 1] : 1964 Cr LJ 350 ; State",
"v Bhimshankar Siddannappa Thobde, 1968 Cr LJ 898 (Bom).",
"266. Keshub Mahindra v State of MP, (1996) 6 SCC 129 [LNIND 1996 SC 2462] : JT 1996 (8) SC",
136 [LNIND 1996 SC 2462] (1996) 1 SCC (Cri) 1124 (Bhopal Gas Tragedy case) against which a,
curative petition was filed by the CBI and it was dismissed by the Constitution bench in CBI v,
"Keshub Mahindra, AIR 2011 SC 2037 [LNINDORD 2011 SC 209] : (2011) 6 SCC 216 [LNIND 2011",
SC 514] .,
THE INDIAN PENAL CODE,
CHAPTER II GENERAL EXPLANATIONS,
THIS Chapter is for the most part an elaborate interpretation clause. It is a key to the,
interpretation of the whole Code. The leading terms used are here defined and,
"explained and the meanings thus, announced are steadily adhered to throughout the",
subsequent chapters.,
[s 36] Effect caused partly by act and partly by omission.,
"Wherever the causing of a certain effect, or an attempt to cause that effect, by an act",
"or by an omission, is an offence, it is to be understood that the causing of that effect",
partly by an act and partly by an omission is the same offence.,
ILLUSTRATION,
"A intentionally causes Z's death, partly by illegally omitting to give Z food, and partly by",
beating Z. A has committed murder.,
COMMENT—,
This section follows as a corollary from section 32. The legal consequences of an 'act',
"and of an 'omission' being the same, if an offence is committed partly by an act and",
partly by an omission the consequences will be the same as if the offence was,
committed by an 'act' or by an 'omission' alone. Fire in the transformer installed in a,
cinema hall led to multiple deaths but was not the causa causans of the tragedy. The,
"absence of rapid dispersal facilities, various acts of omission and commission,",
violation of rules and bye-laws meant for public safety were other causes which,
contributed to the tragedy in equal proportion. A charge under this section was held to,
be justifiable.267.,
"267. Sushil Ansal v State, 2002 Cr LJ 1369 . Also see Association of Victims of Uphaar Tragedy v",
"Gopal Ansal, (2008) 14 SCC 611 [LNIND 2008 SC 1818] : (2009) 2 SCC (Cr) 878.",
THE INDIAN PENAL CODE,
CHAPTER II GENERAL EXPLANATIONS,
THIS Chapter is for the most part an elaborate interpretation clause. It is a key to the,
interpretation of the whole Code. The leading terms used are here defined and,
"explained and the meanings thus, announced are steadily adhered to throughout the",
subsequent chapters.,
[s 37] Co-operation by doing one of several acts constituting an offence.,
"When an offence is committed by means of several acts, whoever intentionally co-",
"operates in the commission of that offence by doing any one of those acts, either",
"singly or jointly with any other person, commits that offence.",
ILLUSTRATIONS,
(a) A and B agree to murder Z by severally and at different times giving him small,
doses of poison. A and B administer the poison according to the agreement with,
intent to murder Z. Z dies from the effects of the several doses of poison so,
administered to him. Here A and B intentionally co-operate in the commission of,
"murder and as each of them does an act by which the death is caused, they are",
both guilty of the offence though their acts are separate.,
"(b) A and B are joint jailors, and as such have the charge of Z, a prisoner,",
"alternatively for six hours at a time. A and B, intending to cause Z's death,",
"knowingly co-operate in causing that effect by illegally omitting, each during the",
"time of his attendance, to furnish Z with food supplied to them for that purpose,",
Z dies of hunger. Both A and B are guilty of the murder of Z.,
"(c) A, a jailor, has the charge of a prisoner. A, intending to cause Z's death, illegally",
omits to supply Z with food; in consequence of which Z is much reduced in,
"strength, but the starvation is not sufficient to cause his death. A is dismissed",
"from his office, and B succeeds him. B, without collusion or co-operation with A,",
"illegally omits to supply Z with food, knowing that he is likely thereby to cause",
"Z's death. Z dies of hunger. B is guilty of murder, but, as A did not co-operate",
with B. A is guilty only of an attempt to commit murder.,
COMMENT—,
This section follows as a corollary from section 35 as appears from the illustrations. It,
"provides that, when several acts are done so as to result together in the commission of",
"an offence, the doing of any one of them, with an intention to co-operate in the offence",
"(which may not be the same as an intention common to all), makes the actor liable to",
be punished for the commission of the offence.268. By co-operating in the doing of,
"several acts which together constitute a single criminal act, each person who co-",
operates in the commission of that offence by doing any one of the acts is either singly,
"or jointly liable for that offence.269. If common intention is the hub of section 34,",
intentional cooperation is the spindle of section 37 of the Penal Code. One who shares,
common intention can as well cooperate in the commission of the offence,
intentionally. In that sense the two sections are not contradictory to each other. The,
former does not necessarily exclude the latter. Co-operation in the commission of the,
offence need not be for the entire gamut of the offence committed. It is enough if he,
cooperates in one of the several acts which constitute the offence. Sections 34–38 of,
the Penal Code delineate the parameters of constructive or vicarious penal liability in,
"different situations. Therefore, it is not imperative that the charge should contain the",
particular section of the Penal Code with which constructive liability is fastened.270.,
"268. Barendra Kumar Ghosh, (1924) 52 IA 40 : 52 Cal 197 : 211, 27 Bom LR 148.",
"269. Afrahim Sheikh v State of WB, AIR 1964 SC 1263 [LNIND 1964 SC 1] : 1964 (6) SCR 172",
[LNIND 1964 SC 1] : 1964 Cr LJ 350 .,
"270. Justus v State, 1987 (2) KLT 330 [LNIND 1987 KER 337] : ILR 1988 (1) Ker 98 .",
THE INDIAN PENAL CODE,
CHAPTER II GENERAL EXPLANATIONS,
THIS Chapter is for the most part an elaborate interpretation clause. It is a key to the,
interpretation of the whole Code. The leading terms used are here defined and,
"explained and the meanings thus, announced are steadily adhered to throughout the",
subsequent chapters.,
[s 38] Persons concerned in criminal act may be guilty of different offences.,
"Where several persons are engaged or concerned in the commission of a criminal act,",
they may be guilty of different offences by means of that act.,
ILLUSTRATION,
A attacks Z under such circumstances of grave provocation that his killing of Z would,
"be only culpable homicide not amounting to murder. B, having ill-will towards Z and",
"intending to kill him, and not having been subject to the provocation, assists A in killing",
"Z. Here, though A and B are both engaged in causing Z's death, B is guilty of murder,",
and A is guilty only of culpable homicide.,
COMMENT—,
Section 38 provides that the responsibility for the completed criminal act may be of,
different grades according to the share taken by the different accused in the,
completion of the criminal act and this section does not mention anything about,
intention common or otherwise or knowledge.271.,
Sections 34–38 lay down principles similar to the English law of 'principals in the first,
and second degrees.' See Comment on section 107.,
The basic principle which runs through sections 32 to 38 is that in certain,
circumstances an entire act is attributed to a person who may have performed only a,
fractional part of it. This axiom is laid down in section 34 in which emphasis are on the,
act. Sections 35–38 take up this axiom as the basis of a further rule by which the,
criminal liability of the doer of a fractional part (who is to be taken as the doer of the,
entire act) is to be adjudged in different situations of mens rea. Without the axiom,
"itself, however, the other sections would not work, inasmuch as it is the foundation on",
which they all stand.272.,
This section provides for different punishments for different offences as an alternative,
"to one punishment for one offence, whether the persons engaged or concerned in the",
commission of a criminal act are set in motion by the one intention or by the other.273.,
The section applies where a criminal act jointly done by several persons and the several,
persons have different intentions or states of knowledge in doing the joint act.274.,
Where three accused assaulted the deceased but only two used their weapons in a,
determined manner which clearly showed their common intention to kill the deceased,
and the third accused who had a lathi in his hand did not even use it to cause any injury,
"to the victim, it was held that the former two were liable to be convicted under section",
"302 read with section 34, IPC, 1860, and the third accused was only liable under",
"section 304, Part II read with section 38, IPC, 1860, as he had intentionally joined the",
other two in the commission of the act with the knowledge that the assault was likely,
to cause death of the deceased even though he did not have the intention to kill,
him.275.,
"271. Afrahim Sheikh v State of WB, AIR 1964 SC 1263 [LNIND 1964 SC 1] : 1964 (6) SCR 172",
[LNIND 1964 SC 1] : 1964 Cr LJ 350 .,
"272. Ibra Akanda, (1944) 2 Cal 405 .",
"273. Barendra Kumar Ghosh, (1924) 52 IA 40 : 52 Cal 197 211 : 27 Bom LR 148.",
"274. State v Bhimshankar Siddannappa Thobde, 1968 Cr LJ 898 (Bom).",
"275. Bhaba Nanda v State of Assam, 1977 Cr LJ 1930 : AIR 1977 SC 2252 [LNIND 1977 SC 291] .",
"Mano Dutt v State of UP, JT 2012 (2) SC 573 : 2012 (3) Scale 219 [LNIND 2012 SC 160] : (2012) 4",
SCC 79 [LNIND 2012 SC 160] .,
THE INDIAN PENAL CODE,
CHAPTER II GENERAL EXPLANATIONS,
THIS Chapter is for the most part an elaborate interpretation clause. It is a key to the,
interpretation of the whole Code. The leading terms used are here defined and,
"explained and the meanings thus, announced are steadily adhered to throughout the",
subsequent chapters.,
"[s 39] ""Voluntarily."".",
"A person is said to cause an effect ""voluntarily"" when he causes it by means whereby",
"he intended to cause it, or by means which, at the time of employing those means, he",
knew or had reason to believe to be likely to cause it.,
ILLUSTRATION,
"A sets fire, by night, to an inhabited house in a large town, for the purpose of facilitating",
"a robbery and thus causes the death of a person. Here, A may not have intended to",
"cause death; and may even be sorry that death has been caused by his act; yet, if he",
"knew that he was likely to cause death, he has caused death voluntarily.",
COMMENT—,
Bare reading of this section shows that a person need not intend to cause a certain,
"effect. If an act is the probable consequence of the means used by him, he is said to",
have caused it voluntarily whether he really means to cause it or not. Section implicitly,
lays down the principle that a man is presumed to intend the probable consequences,
of his act.276. Following this it has been held that if the accused was not aware that the,
"person whom they confined was a public servant, section 332 (voluntarily causing hurt",
to deter public servant from his duty) would not be attracted. The accused would be,
guilty of causing hurt under section 323.277. The Supreme Court has given a new,
"meaning to the word ""voluntary"" by holding in Olga Tellis v Bombay MC,278. that the act",
of slum dwellers putting up their huts on public footpaths and pavements cannot be,
"described to be ""voluntary"" for the purposes of the definition of ""criminal trespass"" in",
"section 441, it being the result of utter helplessness and their moral right of survival.",
"276. Dr.Meenu Bhatia Prasad v State, 2002 Cr LJ 1674 (Del).",
"277. Abdul Majeed v State of Kerala, (1994) 2 Cr LJ 1404 (Ker).",
"278. Olga Tellis v. Bombay MC, (1985) 3 SCC 545 [LNIND 1985 SC 215] : 1986 CrLR (SC) 23 : AIR",
1986 SC 180 [LNIND 1985 SC 215] .,
THE INDIAN PENAL CODE,
CHAPTER II GENERAL EXPLANATIONS,
THIS Chapter is for the most part an elaborate interpretation clause. It is a key to the,
interpretation of the whole Code. The leading terms used are here defined and,
"explained and the meanings thus, announced are steadily adhered to throughout the",
subsequent chapters.,
"279.[[s 40] ""Offence"".",
"Except in the 280.[Chapters] and sections mentioned in clauses 2 and 3 of this section,",
"the word ""offence"" denotes a thing made punishable by this Code.",
"In Chapter IV, 281.[Chapter VA] and in the following sections, namely, sections 282.[64,",
"65, 66, 283.[67], 71], 109, 110, 112, 114, 115, 116, 117, 284.[118, 119, 120] 187, 194,",
"195, 203, 211, 213, 214, 221, 222, 223, 224, 225, 327, 328, 329, 330, 331, 347, 348,",
"388, 389 and 445, the word ""offence"" denotes a thing punishable under this Code, or",
under any special or local law as hereinafter defined.,
"And in sections 141, 176, 177, 201, 202, 212, 216 and 441, the word ""offence"" has the",
same meaning when the thing punishable under the special or local law is punishable,
"under such law with imprisonment for a term of six months or upwards, whether with",
or without fine.],
COMMENT—,
"""Offence"" means 'an act or instance of offending'; 'commit an illegal act' and illegal",
"means, 'contrary to or forbidden by law'. ""Offence"" has to be read and understood in the",
"context as it has been prescribed under the provisions of sub-section 40, 41 and 42",
"IPC, 1860 which cover the offences punishable under IPC, 1860 or under special or",
"local law or as defined under section 2(n) Cr PC, 1973 or section 3(38) of the General",
Clauses Act 1897. There is no statutory offence that takes place when adults willingly,
"engage in sexual relations outside the marital setting, with the exception of 'adultery' as",
"defined under section 497 IPC, 1860.285. In Joseph Shine v UOI286. a five judge",
Constitution bench of the Supreme Court struck down section 497 of the Indian Penal,
"Code as manifestly discriminatory and arbitrary. Section 2(n) of Cr PC, 1973 defines",
offence as any act or omission made punishable by any law for the time being in force,
and includes any act in respect of which a complaint may be under section 20 of the,
"Cattle Trespass Act 1871 (1 of 1871). Thus, the definition of 'offence' under section",
"2(n), Cr PC, 1973, is wider enough to enable the police to investigate into offences",
"under other enactments also, apart from those under the IPC, 1860.287. An offence",
"seldom consists of a single act. It is usually composed of several elements and, as a",
rule; a whole series of acts must be proved before it can be established.288. There is a,
basic difference between the offences under the Penal Code and acts and omissions,
which have been made punishable under different Acts and statutes which are in,
nature of social welfare legislations. For framing charges in respect of those acts and,
"omissions, in many cases, mens rea is not an essential ingredient; the concerned",
"statute imposes a duty on those who are in charge of the management, to follow the",
"statutory provisions and once there is a breach or contravention, such persons become",
"liable to be punished. But for framing a charge for an offence under the Penal Code, the",
traditional rule of existence of mens rea is to be followed.289. In the absence of a,
"definition in a special act, the term 'offence' should be understood in the context of",
section 40 of the Indian Penal Code as an act that is criminally punishable and section,
3(38) of the General Clauses Act as an act made punishable by any law and the,
essential ingredient is that it should be a criminal act as understood.290. In Naz,
"Foundation v NCT Delhi.291. section 377 of IPC, 1860 in so far it criminalised",
"consensual sexual acts of adults in private, was held violative of Article 21, Article 14",
and Article 15 of the Constitution by the Delhi High Court.292. This judgement of the,
Delhi High Court was later overruled by the Supreme Court on 12 December 2013 in,
"Suresh Kumar Koushal case.293. Finally in Navtej Singh Johar v UOI,294. a five-judge",
bench of the Supreme Court declared section 377 of the Indian Penal Code,
"unconstitutional, insofar as it criminalises consensual sexual acts of adults of same",
"sex in private. However, other parts of Section 377 relating to sex with minors and",
bestiality remain in force.,
[s 40.1] Offences under Special law.—,
A plain reading of this provision of law makes it crystal clear that the effect of clause,
(2) of section 40 is to make everything punishable under the special law as an offence,
"within the meaning of the Indian Penal Code. The offences under the NDPS Act thus,",
"become offences under the Indian Penal Code as the term ""offence"" in certain cases is",
extended to the things made punishable under any special or local law.295.,
[s 40.2] Article 20(1).—,
The word 'offence' under Article 20 sub-clause (1) of the Constitution has not been,
defined under the Constitution. But Article 367 of the Constitution states that unless,
"the context otherwise requires, the General Clauses Act 1897 shall apply for the",
interpretation of the Constitution as it does for the interpretation of an Act.296.,
[s 40.3] Offence and breach of duty distinguished.—,
"Offence generally implies infringement of public, as distinguished from mere private",
rights punishable under criminal law. When trial for criminal offence is conducted it,
should be in accordance with proof of the offence as per the evidence defined under,
the provisions of the Evidence Act. Converse is the case of departmental enquiry. The,
enquiry in departmental proceedings relates to conduct or breach of duty of the,
delinquent officer to punish him for his misconduct defined under the relevant statutory,
rules or law.297.,
[s 40.4] Suicide.—,
"Suicide by itself is not an offence under either English or Indian Criminal Law, though at",
one time it was a felony in England.298.,
[s 40.5] Euthanasia.—,
In India active euthanasia is illegal and a crime under section 302 or at least section,
"304 IPC, 1860. Physician assisted suicide is a crime under section 306 IPC, 1860",
"(abetment to suicide).299. But in Aruna Ramchandra Shanbaug v UOI,300. the Supreme",
Court held that passive euthanasia can be allowed under exceptional circumstances,
"under the strict monitoring of the Court. In March 2018, a five-judge Constitution Bench",
"of the Supreme Court gave legal sanction to passive euthanasia, permitting 'living will'",
by patients.301.,
"[s 40.6] Sections 40 and 141 IPC, 1860.—",
Section 40 specifically mentions as to how the term 'offence' will have to be construed.,
"In the main clause of the said section it has been clearly set out that the word ""offence""",
denotes a thing made punishable by this Code except the chapters and sections,
"mentioned in clauses 2 and 3 of the said section. Therefore, going by the main clause",
"of section 40, the word ""offence"" since denotes the thing made punishable under the",
"Code, 'other offence' mentioned in section 141 'third', can only denote to offences,",
"which are punishable under any of the provisions of the Code. Therefore, by applying",
"the main clause of section 40, it can be straight away held that all offences referred to",
in any of the provisions of the Code for which the punishment is provided for would,
"automatically fall within the expression ""other offence"", which has been used in section",
"141 'third'. Therefore, a conspectus reading of section 40 makes the position",
"abundantly clear that for all offences punishable under the Indian Penal Code, the main",
"clause of section 40 would straight away apply in which event the expression ""other",
"offence"" used in section 141 'third', will have to be construed as any offence for which",
"punishment is prescribed under the Code. To put it differently, whosoever is proceeded",
"against for any offence punishable under the provisions of the Indian Penal Code,",
section 40 sub-clause 1 would straight away apply for the purpose of construing what,
the offence is and when it comes to the question of offence under any other special or,
"local law, the aid of sub-clause 2 and 3 will have to be applied for the purpose of",
"construing the offence for which the accused is proceeded against. Therefore, having",
"regard to sub-clause 1 of section 40 of the Code read along with section 141 'third', the",
argument of learned senior counsel for the Appellants will have to be rejected. Only,
such a construction would be in tune with the purport and intent of the law makers,
while defining an unlawful assembly for commission of an offence with a common,
"object, as specified under section 141 of the Code.302.",
"279. Subs. by Act 27 of 1870, section 1, for section 40.",
"280. Subs. by Act 8 of 1930, section 2 and Sch I, for ""Chapter"".",
"281. Ins. by Act 8 of 1913, section 2.",
"282. Ins. by Act 8 of 1882, section 1.",
"283. Ins. by Act 10 of 1886, section 21(1).",
"284. Ins. by Act 10 of 2009, section 51(b) (w.e.f. 27-10-2009).",
"285. S Khushboo v Kanniammal, (2010) 5 SCC 600 [LNIND 2010 SC 411] : AIR 2010 SC 3196",
"[LNIND 2010 SC 411] : (2010) 2 SCC (Cr) 1299; VijaySingh v State of UP, (2012) 5 SCC 242",
[LNIND 2012 SC 1216] : AIR 2012 SC 2840 [LNINDORD 2012 SC 356] .,
"286. Joseph Shine v UOI, decided by Hon'ble Supreme Court of India.",
"287. Dharma Reddy v State, 1990 Cr LJ 1476 . (AP); Director of Enforcement v MCT M",
"Corporation PvtLtd, AIR 1996 SC 1100 [LNIND 1996 SC 63] : (1996) 2 SCC 471 [LNIND 1996 SC",
63] .,
"288. Shreekantiah Ramayya Munipalli v State of Bombay, AIR 1955 SC 287 [LNIND 1954 SC 180] :",
1955 (1) SCR 1177 [LNIND 1954 SC 180] : 1955Cr LJ 857.,
"289. Radhey Shyam Khemka v State of Bihar, (1993) 3 SCC 54 [LNIND 1993 SC 276] : 1993 Cr LJ",
2888 .,
"290. Standard Chartered Bank v Directorate of Enforcement, AIR 2006 SC 1301 [LNIND 2006 SC",
145] : (2006) 4 SCC 278 [LNIND 2006 SC 145] .,
"291. Naz Foundation v NCT Delhi, 2010 Cr LJ 94 (Del).",
"292. Naz Foundation v NCT Delhi, 2010 Cr LJ 94 (Del).",
"293. Suresh Kumar Koushal v Naz Foundation, (2014) 1 SCC 1 [LNIND 2013 SC 1059] .",
"294. Navtej Singh Johar v UOI, 2018 (10) Scale 386 [LNIND 2018 SC 451] .",
"295. Daulat Raghunath Derale v State of Maharashtra, 1991 Cr LJ 817 (Bom).",
"296. SEBI v Ajay Agarwal, AIR 2010 SC 3466 [LNIND 2010 SC 203] : (2010) 3 SCC 765 [LNIND",
2010 SC 203] .,
"297. Depot Manager, AP State Road Transport Corporation v Mohd. Yousuf Miya, AIR 1997 SC",
2232 [LNINDORD 1996 SC 4] : (1997) 2 SCC 699 [LNINDORD 1996 SC 4] .,
"298. Gangula Mohan Reddy v State of AP, AIR 2010 SC 327 [LNIND 2010 SC 3] : (2010) 1 SCC",
"327 ; Gian Kaur v State ofPunjab, 1996 (2) SCC 648 [LNIND 1996 SC 653] : AIR 1996 SC 946",
[LNIND 1996 SC 653] .,
"299. The Constitution Bench in Gian Kaur v State of Punjab, 1996 (2) SCC 648 [LNIND 1996 SC",
"653] held that both euthanasiaand assisted suicide are not lawful in India, overruling the two",
"Judge Bench decision of the SupremeCourt in P Rathinam v UOI, AIR 1994 SC 1844 [LNIND 1994",
SC 1533] : 1994 (3) SCC 394 [LNIND 1994 SC 1533] . The Court held that the right tolife under,
Article 21 of the Constitution does not include the right to die.,
"300. Aruna Ramchandra Shanbaug v UOI, (2011) 4 SCC 454 [LNIND 2011 SC 265] : AIR 2011 SC",
1290 [LNIND 2011 SC 265] .,
"301. Common Cause (A Registered Society) v UOI, (2018) 5 SCC 1 [LNIND 2018 SC 87] .",
"302. Manga @ Man Singh v State of Uttarakhand, (2013) 7 SCC 629 [LNIND 2013 SC 529] : 2013",
Cr LJ 3332 (SC).,
THE INDIAN PENAL CODE,
CHAPTER II GENERAL EXPLANATIONS,
THIS Chapter is for the most part an elaborate interpretation clause. It is a key to the,
interpretation of the whole Code. The leading terms used are here defined and,
"explained and the meanings thus, announced are steadily adhered to throughout the",
subsequent chapters.,
"279.[[s 40] ""Offence"".",
"Except in the 280.[Chapters] and sections mentioned in clauses 2 and 3 of this section,",
"the word ""offence"" denotes a thing made punishable by this Code.",
"In Chapter IV, 281.[Chapter VA] and in the following sections, namely, sections 282.[64,",
"65, 66, 283.[67], 71], 109, 110, 112, 114, 115, 116, 117, 284.[118, 119, 120] 187, 194,",
"195, 203, 211, 213, 214, 221, 222, 223, 224, 225, 327, 328, 329, 330, 331, 347, 348,",
"388, 389 and 445, the word ""offence"" denotes a thing punishable under this Code, or",
under any special or local law as hereinafter defined.,
"And in sections 141, 176, 177, 201, 202, 212, 216 and 441, the word ""offence"" has the",
same meaning when the thing punishable under the special or local law is punishable,
"under such law with imprisonment for a term of six months or upwards, whether with",
or without fine.],
COMMENT—,
"""Offence"" means 'an act or instance of offending'; 'commit an illegal act' and illegal",
"means, 'contrary to or forbidden by law'. ""Offence"" has to be read and understood in the",
"context as it has been prescribed under the provisions of sub-section 40, 41 and 42",
"IPC, 1860 which cover the offences punishable under IPC, 1860 or under special or",
"local law or as defined under section 2(n) Cr PC, 1973 or section 3(38) of the General",
Clauses Act 1897. There is no statutory offence that takes place when adults willingly,
"engage in sexual relations outside the marital setting, with the exception of 'adultery' as",
"defined under section 497 IPC, 1860.285. In Joseph Shine v UOI286. a five judge",
Constitution bench of the Supreme Court struck down section 497 of the Indian Penal,
"Code as manifestly discriminatory and arbitrary. Section 2(n) of Cr PC, 1973 defines",
offence as any act or omission made punishable by any law for the time being in force,
and includes any act in respect of which a complaint may be under section 20 of the,
"Cattle Trespass Act 1871 (1 of 1871). Thus, the definition of 'offence' under section",
"2(n), Cr PC, 1973, is wider enough to enable the police to investigate into offences",
"under other enactments also, apart from those under the IPC, 1860.287. An offence",
"seldom consists of a single act. It is usually composed of several elements and, as a",
rule; a whole series of acts must be proved before it can be established.288. There is a,
basic difference between the offences under the Penal Code and acts and omissions,
which have been made punishable under different Acts and statutes which are in,
nature of social welfare legislations. For framing charges in respect of those acts and,
"omissions, in many cases, mens rea is not an essential ingredient; the concerned",
"statute imposes a duty on those who are in charge of the management, to follow the",
"statutory provisions and once there is a breach or contravention, such persons become",
"liable to be punished. But for framing a charge for an offence under the Penal Code, the",
traditional rule of existence of mens rea is to be followed.289. In the absence of a,
"definition in a special act, the term 'offence' should be understood in the context of",
section 40 of the Indian Penal Code as an act that is criminally punishable and section,
3(38) of the General Clauses Act as an act made punishable by any law and the,
essential ingredient is that it should be a criminal act as understood.290. In Naz,
"Foundation v NCT Delhi.291. section 377 of IPC, 1860 in so far it criminalised",
"consensual sexual acts of adults in private, was held violative of Article 21, Article 14",
and Article 15 of the Constitution by the Delhi High Court.292. This judgement of the,
Delhi High Court was later overruled by the Supreme Court on 12 December 2013 in,
"Suresh Kumar Koushal case.293. Finally in Navtej Singh Johar v UOI,294. a five-judge",
bench of the Supreme Court declared section 377 of the Indian Penal Code,
"unconstitutional, insofar as it criminalises consensual sexual acts of adults of same",
"sex in private. However, other parts of Section 377 relating to sex with minors and",
bestiality remain in force.,
[s 40.1] Offences under Special law.—,
A plain reading of this provision of law makes it crystal clear that the effect of clause,
(2) of section 40 is to make everything punishable under the special law as an offence,
"within the meaning of the Indian Penal Code. The offences under the NDPS Act thus,",
"become offences under the Indian Penal Code as the term ""offence"" in certain cases is",
extended to the things made punishable under any special or local law.295.,
[s 40.2] Article 20(1).—,
The word 'offence' under Article 20 sub-clause (1) of the Constitution has not been,
defined under the Constitution. But Article 367 of the Constitution states that unless,
"the context otherwise requires, the General Clauses Act 1897 shall apply for the",
interpretation of the Constitution as it does for the interpretation of an Act.296.,
[s 40.3] Offence and breach of duty distinguished.—,
"Offence generally implies infringement of public, as distinguished from mere private",
rights punishable under criminal law. When trial for criminal offence is conducted it,
should be in accordance with proof of the offence as per the evidence defined under,
the provisions of the Evidence Act. Converse is the case of departmental enquiry. The,
enquiry in departmental proceedings relates to conduct or breach of duty of the,
delinquent officer to punish him for his misconduct defined under the relevant statutory,
rules or law.297.,
[s 40.4] Suicide.—,
"Suicide by itself is not an offence under either English or Indian Criminal Law, though at",
one time it was a felony in England.298.,
[s 40.5] Euthanasia.—,
In India active euthanasia is illegal and a crime under section 302 or at least section,
"304 IPC, 1860. Physician assisted suicide is a crime under section 306 IPC, 1860",
"(abetment to suicide).299. But in Aruna Ramchandra Shanbaug v UOI,300. the Supreme",
Court held that passive euthanasia can be allowed under exceptional circumstances,
"under the strict monitoring of the Court. In March 2018, a five-judge Constitution Bench",
"of the Supreme Court gave legal sanction to passive euthanasia, permitting 'living will'",
by patients.301.,
"[s 40.6] Sections 40 and 141 IPC, 1860.—",
Section 40 specifically mentions as to how the term 'offence' will have to be construed.,
"In the main clause of the said section it has been clearly set out that the word ""offence""",
denotes a thing made punishable by this Code except the chapters and sections,
"mentioned in clauses 2 and 3 of the said section. Therefore, going by the main clause",
"of section 40, the word ""offence"" since denotes the thing made punishable under the",
"Code, 'other offence' mentioned in section 141 'third', can only denote to offences,",
"which are punishable under any of the provisions of the Code. Therefore, by applying",
"the main clause of section 40, it can be straight away held that all offences referred to",
in any of the provisions of the Code for which the punishment is provided for would,
"automatically fall within the expression ""other offence"", which has been used in section",
"141 'third'. Therefore, a conspectus reading of section 40 makes the position",
"abundantly clear that for all offences punishable under the Indian Penal Code, the main",
"clause of section 40 would straight away apply in which event the expression ""other",
"offence"" used in section 141 'third', will have to be construed as any offence for which",
"punishment is prescribed under the Code. To put it differently, whosoever is proceeded",
"against for any offence punishable under the provisions of the Indian Penal Code,",
section 40 sub-clause 1 would straight away apply for the purpose of construing what,
the offence is and when it comes to the question of offence under any other special or,
"local law, the aid of sub-clause 2 and 3 will have to be applied for the purpose of",
"construing the offence for which the accused is proceeded against. Therefore, having",
"regard to sub-clause 1 of section 40 of the Code read along with section 141 'third', the",
argument of learned senior counsel for the Appellants will have to be rejected. Only,
such a construction would be in tune with the purport and intent of the law makers,
while defining an unlawful assembly for commission of an offence with a common,
"object, as specified under section 141 of the Code.302.",
"279. Subs. by Act 27 of 1870, section 1, for section 40.",
"280. Subs. by Act 8 of 1930, section 2 and Sch I, for ""Chapter"".",
"281. Ins. by Act 8 of 1913, section 2.",
"282. Ins. by Act 8 of 1882, section 1.",
"283. Ins. by Act 10 of 1886, section 21(1).",
"284. Ins. by Act 10 of 2009, section 51(b) (w.e.f. 27-10-2009).",
"285. S Khushboo v Kanniammal, (2010) 5 SCC 600 [LNIND 2010 SC 411] : AIR 2010 SC 3196",
"[LNIND 2010 SC 411] : (2010) 2 SCC (Cr) 1299; VijaySingh v State of UP, (2012) 5 SCC 242",
[LNIND 2012 SC 1216] : AIR 2012 SC 2840 [LNINDORD 2012 SC 356] .,
"286. Joseph Shine v UOI, decided by Hon'ble Supreme Court of India.",
"287. Dharma Reddy v State, 1990 Cr LJ 1476 . (AP); Director of Enforcement v MCT M",
"Corporation PvtLtd, AIR 1996 SC 1100 [LNIND 1996 SC 63] : (1996) 2 SCC 471 [LNIND 1996 SC",
63] .,
"288. Shreekantiah Ramayya Munipalli v State of Bombay, AIR 1955 SC 287 [LNIND 1954 SC 180] :",
1955 (1) SCR 1177 [LNIND 1954 SC 180] : 1955Cr LJ 857.,
"289. Radhey Shyam Khemka v State of Bihar, (1993) 3 SCC 54 [LNIND 1993 SC 276] : 1993 Cr LJ",
2888 .,
"290. Standard Chartered Bank v Directorate of Enforcement, AIR 2006 SC 1301 [LNIND 2006 SC",
145] : (2006) 4 SCC 278 [LNIND 2006 SC 145] .,
"291. Naz Foundation v NCT Delhi, 2010 Cr LJ 94 (Del).",
"292. Naz Foundation v NCT Delhi, 2010 Cr LJ 94 (Del).",
"293. Suresh Kumar Koushal v Naz Foundation, (2014) 1 SCC 1 [LNIND 2013 SC 1059] .",
"294. Navtej Singh Johar v UOI, 2018 (10) Scale 386 [LNIND 2018 SC 451] .",
"295. Daulat Raghunath Derale v State of Maharashtra, 1991 Cr LJ 817 (Bom).",
"296. SEBI v Ajay Agarwal, AIR 2010 SC 3466 [LNIND 2010 SC 203] : (2010) 3 SCC 765 [LNIND",
2010 SC 203] .,
"297. Depot Manager, AP State Road Transport Corporation v Mohd. Yousuf Miya, AIR 1997 SC",
2232 [LNINDORD 1996 SC 4] : (1997) 2 SCC 699 [LNINDORD 1996 SC 4] .,
"298. Gangula Mohan Reddy v State of AP, AIR 2010 SC 327 [LNIND 2010 SC 3] : (2010) 1 SCC",
"327 ; Gian Kaur v State ofPunjab, 1996 (2) SCC 648 [LNIND 1996 SC 653] : AIR 1996 SC 946",
[LNIND 1996 SC 653] .,
"299. The Constitution Bench in Gian Kaur v State of Punjab, 1996 (2) SCC 648 [LNIND 1996 SC",
"653] held that both euthanasiaand assisted suicide are not lawful in India, overruling the two",
"Judge Bench decision of the SupremeCourt in P Rathinam v UOI, AIR 1994 SC 1844 [LNIND 1994",
SC 1533] : 1994 (3) SCC 394 [LNIND 1994 SC 1533] . The Court held that the right tolife under,
Article 21 of the Constitution does not include the right to die.,
"300. Aruna Ramchandra Shanbaug v UOI, (2011) 4 SCC 454 [LNIND 2011 SC 265] : AIR 2011 SC",
1290 [LNIND 2011 SC 265] .,
"301. Common Cause (A Registered Society) v UOI, (2018) 5 SCC 1 [LNIND 2018 SC 87] .",
"302. Manga @ Man Singh v State of Uttarakhand, (2013) 7 SCC 629 [LNIND 2013 SC 529] : 2013",
Cr LJ 3332 (SC).,
THE INDIAN PENAL CODE,
CHAPTER II GENERAL EXPLANATIONS,
THIS Chapter is for the most part an elaborate interpretation clause. It is a key to the,
interpretation of the whole Code. The leading terms used are here defined and,
"explained and the meanings thus, announced are steadily adhered to throughout the",
subsequent chapters.,
"[s 41] ""Special law"".",
"A ""special law"" is a law applicable to a particular subject.",
COMMENT—,
Laws dealing with special subjects are called special laws. The special laws,
"contemplated in section 40 and this section are only laws, such as the Excise, Opium,",
"Cattle Trespass, Gambling and Railway Acts, creating fresh offences, that is, laws",
making punishable certain things which are not already punishable under the Penal,
Code. Negotiable Instruments Act being a special statute has overriding effect over the,
"provisions of Cr PC, 1973.303. Since nothing in Factories Act (Special Law) which",
prescribes punishment for rash and negligent act of occupier or manager of factory,
"which resulted into death of any worker or any other person, the general Law, i.e., IPC,",
1860 will apply.304.,
"303. Rajan K Moorthy v M Vijayan, 2008 Cr LJ 1254 (Mad).",
"304. Ejas Ahmed v State of Jharkhand, 2010 Cr LJ 1953 (Jha) also see the comments under",
"Section 5 of IPC, 1860.",
THE INDIAN PENAL CODE,
CHAPTER II GENERAL EXPLANATIONS,
THIS Chapter is for the most part an elaborate interpretation clause. It is a key to the,
interpretation of the whole Code. The leading terms used are here defined and,
"explained and the meanings thus, announced are steadily adhered to throughout the",
subsequent chapters.,
"[s 42] ""Local law"".",
"A ""local law"" is a law applicable only to a particular part of 305.[306.[***]307.[India]].",
COMMENT—,
"Laws applicable to a particular locality only are termed local laws, e.g., Port Trust Acts.",
"305. Subs. by the A.O. 1948, for ""British India"".",
"306. The words ""the territories comprised in"" omitted by Act 48 of 1952, section 3 and Sch II",
(w.e.f. 2-8- 1952).,
"307. Subs. by Act 3 of 1951, section 3 and Sch, for ""the States"" (w.e.f. 3-4-1951). Earlier the",
"words ""the States"" were substituted by the A.O. 1950, for ""the Provinces"".",
THE INDIAN PENAL CODE,
CHAPTER II GENERAL EXPLANATIONS,
THIS Chapter is for the most part an elaborate interpretation clause. It is a key to the,
interpretation of the whole Code. The leading terms used are here defined and,
"explained and the meanings thus, announced are steadily adhered to throughout the",
subsequent chapters.,
"[s 43] ""Illegal."" ""Legally bound to do."".",
"The word ""illegal"" is applicable to everything which is an offence or which is",
"prohibited by law, or which furnishes ground for a civil action; and a person is said to",
"be ""legally bound to do"" whatever it is illegal in him to omit.",
COMMENT—,
The word `illegal' in the section has been given a very wide meaning. It consists of,
three ingredients: (1) everything which is an offence; (2) everything which is prohibited,
"by law and (3) everything which furnishes ground for civil action.308. The words ""legally",
"bound"" do not necessarily only mean the law made by the legislature or statutory law.",
"Section 43 IPC, 1860 contains a definition of a person being legally bound to do, that is,",
a person is stated to be legally bound to do whatever it is illegal in him to omit.309.,
"The expression ""legally bound to do"" carries very wide meaning where any ground for",
"civil action can be founded on the basis of any act or omission on the part of a person,",
his act may be held to be illegal or it may be held that he was legally bound to do an act,
"which he had omitted to do. If a person breaches a departmental order, he may be held",
guilty as he was legally bound to act in terms of the order.310.,
Sexual contact between two persons with consent but out of marriage does not,
amount to an illegal act.311.,
"[s 43.1] ""Ground for civil action.""—",
In order to constitute a ground for a civil action there must be the right in a party which,
can be enforced. It may be breach of a contract or a claim for damages or any such,
similar right accruing under the law. There is no law which debars the Chief Minister,
from participating in a sale conducted by any Government Department or any of the,
corporation or any public sector undertaking affording a cause for civil action,
particularly when no fraud or illegal gain is involved. There was nothing in the charge to,
"indicate, nor did the prosecution take a specific stand that the purchase of the property",
of the Government company furnished a ground for a civil action. The nature of the civil,
action should not be left to a guess work. The accused could not be expected to meet,
such a case at any subsequent stage.312.,
"[s 43.2] ""Illegal"" and ""unlawful"".—",
"The expression ""illegal"" and ""unlawful"" are synonymous and convey the same idea in",
language - ordinary and legal. But when a statute employs an expression with intention,
of conveying a special meaning and with the said purpose defines the expression in,
"such statute as the expression ""illegal"" is defined in section 43 of the IPC, 1860, such",
meaning is to be ascertained for that expression specially and specifically for such a,
statute and for the purpose of such statute. Merely because two expressions mean the,
"same ordinarily in language and law, both cannot be held to have the same meaning",
when one of them is specially and specifically defined and explained in one statute. So,
"reckoned, it cannot be accepted that the definition of the expression ""illegal"" in section",
"43 of the IPC, 1860 must straightaway be mechanically imported into section 98 of the",
"Cr PC, 1973 when we consider the ambit and play of the expression ""unlawful"" in",
"section 98 of the Cr PC, 1973.313.",
"308. R Venkatakrishnan v Central Bureau of Investigation, (2009) 11 SCC 737 [LNIND 2009 SC",
1653] : AIR 2010 SC 1812 [LNIND 2009 SC 1653] : (2010) 1 SCC (Cr) 164.,
"309. R Sai Bharathi v J Jayalalitha, AIR 2004 SC 692 [LNIND 2003 SC 1023] : (2004) 2 SCC 9",
[LNIND 2003 SC 1023] : JT 2003 (9) SC 343 [LNIND 2003 SC 1023] .,
"310. Sudhir Shantilal Mehta v CBI, (2009) 8 SCC 1 [LNIND 2009 SC 1652] : (2009) 3 SCC (Cr) 646",
: AIR 2009 SC 480 [LNIND 2008 SC 2235] .,
"311. S Khushboo v Kanniammal, (2010) 5 SCC 600 [LNIND 2010 SC 411] : 2010 Cr LJ 2828 : AIR",
"2010 SC 3196 [LNIND 2010 SC 411] : (2010) 2 SCC(Cr) 1299; Mailsami v State, (1994) 2 Cr LJ",
2238 (Mad).,
"312. R Sai Bharathi v J Jayalalitha, (2004) 2 SCC 9 [LNIND 2003 SC 1023] : AIR 2004 SC 692",
[LNIND 2003 SC 1023] : 2004 Cr LJ 286 .,
"313. Zeenath v Khadeeja, 2007 Cr LJ 600 .",
THE INDIAN PENAL CODE,
CHAPTER II GENERAL EXPLANATIONS,
THIS Chapter is for the most part an elaborate interpretation clause. It is a key to the,
interpretation of the whole Code. The leading terms used are here defined and,
"explained and the meanings thus, announced are steadily adhered to throughout the",
subsequent chapters.,
"[s 44] ""Injury."".",
"The word ""injury"" denotes any harm whatever illegally caused to any person, in body,",
"mind, reputation or property.",
COMMENT—,
'Injury' is an act contrary to law.314. It will include any tortious act.,
A Magistrate imposed a fine in addition to a sentence of imprisonment on a conviction,
for the offence of causing death by a rash and negligent act and gave compensation to,
the widow of the deceased out of the fine imposed. It was held that compensation,
"could not be given to her for she did not suffer any injury as here defined.315. It may,",
"however, be argued that nothing could be more harmful to the mind of a woman than",
"the death of her husband, and the section speaks of harm to the mind as 'injury'. The",
former Chief Court of the Punjab held that loss of her husband's support affected a,
"widow prejudicially in a legal right, and was therefore, an injury as defined in the Penal",
Code.316. The context of section 125(1)(c) does not require reference to the definition,
"of 'injury' rendered in section 44 IPC, 1860. The words ""physical or mental abnormality""",
will prima facie take in congenital defects while 'injury' leading to inability to maintain,
"itself can have reference, be at any point of time even after the attaining of majority. It",
may even be possible to take in all cases of physical or mental abnormality which need,
"not necessarily be congenital.317. As defined in section 44 IPC, 1860, ""injury"" denotes",
"any harm whatever illegally caused to any person in body, mind, reputation or property.",
"Now, if a person wants to save himself from injury, such as conviction in a criminal",
"case, it does not mean that he caused injury to another.318. Harm caused to a",
"reputation has been held to constitute an injury, within the purview of section 44.319.",
"314. Svami Nayudu v Subramania Mudali, (1864) 2 MHC 158 .",
"315. Yalla Gangulu v Mamidi Dali, (1897) 21 Mad 74 (FB).",
"316. Saif Ali v State, (1989) PR No. 17 of 1898 (FB).",
"317. TPSH Selva Saroja v TPSH Sasinathana, 1989 Cr LJ 2032 (Mad).",
"318. Prayag Das v State, 1963 (1) Cr LJ 279 .",
"319. Subramanian Swamy v UOI, 2016 Cr LJ 3214 .",
THE INDIAN PENAL CODE,
CHAPTER II GENERAL EXPLANATIONS,
THIS Chapter is for the most part an elaborate interpretation clause. It is a key to the,
interpretation of the whole Code. The leading terms used are here defined and,
"explained and the meanings thus, announced are steadily adhered to throughout the",
subsequent chapters.,
"[s 45] ""Life"".",
"The word ""life"" denotes the life of a human being, unless the contrary appears from",
the context.,
COMMENT—,
"Section 45 of the IPC, 1860 defines life as denoting the life of a human being, unless",
"the contrary appears from the context. Therefore, when a punishment for murder is",
"awarded under section 302 of the IPC, 1860, it might be imprisonment for life, where",
life denotes the life of the convict or death. The term of sentence spanning the life of,
"the convict, can be curtailed by the appropriate Government for good and valid reasons",
"in exercise of its powers under section 432 of the Cr PC, 1973.320. Life imprisonment",
"cannot be equivalent to imprisonment for 14 years or 20 years or even 30 years, rather",
it always means the whole natural life.321. The expression 'imprisonment for life' must,
"be read in the context of section 45, IPC, 1860.322. The Court may feel that the",
"punishment more just and proper, in the facts of the case, would be imprisonment for",
life with life given its normal meaning and as defined in section 45 of the Indian Penal,
Code.323.,
[s 45.1] Imprisonment for the remainder of Accused's natural life.—,
As per the Criminal Law (Amendment) Act 2013324. the punishment for rape (section,
"376) is rigorous imprisonment for a term which shall not be less than ten years, but",
"which may extend to imprisonment for life, which shall mean imprisonment for the",
"remainder of that person's natural life, and shall also be liable to fine. In sub-sections 370,",
"376(A), 376(D), 376(E) also it is specifically mentioned that 'Life' shall mean",
imprisonment for the remainder of that person's natural life. Parliament has enacted,
"the Criminal Law (Amendment) Act, 2018 which provides for enhanced punishment in",
rape cases. The Amendment Act provides stringent punishment for perpetrators of,
rape particularly of girls below 12 years. Gang rape of a girl under 12 years of age is,
now made punishable with a jail term for remainder of guilty person's natural life or,
death. 325.,
"The right to claim remission, commutation, reprieve, etc., as provided under Article 72",
"or Article 161 of the Constitution will always be available, being guaranteed",
"Constitutional remedies, which are untouchable by the Court.326.",
"320. Sangeet v State Of Haryana, (2013) 2 SCC 452 [LNIND 2012 SC 719] : 2013 Cr LJ 425 .",
"321. Mohinder Singh v State of Punjab, (2013) 3 SCC 294 [LNIND 2013 SC 71] : 2013 Cr LJ 1559",
"(SC); Life Convict Bengal @Khoka @Prasanta Sen v BK Srivastava, 2013 Cr LJ 1446 (SC) : AIR",
"2013 SC 1163 , JT 2013 (3) SC20 : 2013 (2) Scale 467 : (2013) 3 SCC 425 [LNINDORD 2013 SC",
"6760] ; Zahid Hussein v State of WB, AIR 2001 SC 1312 [LNIND 2001 SC 692] : (2001)3 SCC 750",
"[LNIND 2001 SC 692] ; Munna v UOI, AIR 2005 SC 3440 [LNIND 2005 SC 701] : (2005) 7 SCC 417",
[LNIND 2005 SC 701] - A plea for premature release after21 years of imprisonment rejected.,
"322. Ashok Kumar v UOI, (1991) 3 SCC 498 [LNIND 1991 SC 288] : 1991 SCC (Cr) 845 (3 Judge",
"Bench); Gopal VinayakGodse v State of Maharashtra, 1961 (3) SCR 440 [LNIND 1961 SC 11] : AIR",
"1961 SC (Const. Bench) : But a two judgebench in Ramraj v State of Chhattisgarh, (2010) 1 SCC",
573 [LNIND 2009 SC 2093] : AIR 2010 SC 420 [LNIND 2009 SC 2093] held that lifeimprisonment,
is not to be interpreted as being imprisonment for the whole of a convict's natural lifewithin the,
scope of Section 45.,
"323. Swamy Shraddananda (2) v State of Karnataka, 2008 (13) SCC 767 [LNIND 2008 SC 1488] :",
AIR 2008 SC 3040 [LNIND 2008 SC 1488] : 2008 CrLJ 3911 .,
324. Act No. 13 of 2013 w.e.f 2-4-2013.,
325. Refer Chapter XVI infra.,
"326. UOI v V Sriharan, (2016) 7 SCC 1 [LNIND 2015 SC 677] : 2016 Cr LJ 845 .",
THE INDIAN PENAL CODE,
CHAPTER II GENERAL EXPLANATIONS,
THIS Chapter is for the most part an elaborate interpretation clause. It is a key to the,
interpretation of the whole Code. The leading terms used are here defined and,
"explained and the meanings thus, announced are steadily adhered to throughout the",
subsequent chapters.,
"[s 46] ""Death."".",
"The word ""death"" denotes the death of a human being, unless the contrary appears",
from the context.,
COMMENT—,
A present day understanding of death as the irreversible end of life must imply total,
"brain failure, such that neither breathing, nor circulation is possible any more.327.",
"327. Aruna ramchandra Shanbaug v UOI, (2011) 4 SCC 454 [LNIND 2011 SC 265] : AIR 2011 SC",
1290 [LNIND 2011 SC 265] .,
THE INDIAN PENAL CODE,
CHAPTER II GENERAL EXPLANATIONS,
THIS Chapter is for the most part an elaborate interpretation clause. It is a key to the,
interpretation of the whole Code. The leading terms used are here defined and,
"explained and the meanings thus, announced are steadily adhered to throughout the",
subsequent chapters.,
"[s 47] ""Animal."".",
"The word ""animal"" denotes any living creature, other than a human being.",
THE INDIAN PENAL CODE,
CHAPTER II GENERAL EXPLANATIONS,
THIS Chapter is for the most part an elaborate interpretation clause. It is a key to the,
interpretation of the whole Code. The leading terms used are here defined and,
"explained and the meanings thus, announced are steadily adhered to throughout the",
subsequent chapters.,
"[s 48] ""Vessel."".",
"The word ""vessel"" denotes anything made for the conveyance by water of human",
beings or of property.,
COMMENT—,
"The word ""vessel"" has been defined in section 48 of the Indian Penal Code to denote",
anything made for the conveyance by water of human beings or of property. The train,
"compartment is not a building, tent or vessel used as a human building neither a place",
for worship nor a place used for the custody of property.328.,
"328. P Balaraman v The State, 1991 Cr LJ 166 (Mad).",
THE INDIAN PENAL CODE,
CHAPTER II GENERAL EXPLANATIONS,
THIS Chapter is for the most part an elaborate interpretation clause. It is a key to the,
interpretation of the whole Code. The leading terms used are here defined and,
"explained and the meanings thus, announced are steadily adhered to throughout the",
subsequent chapters.,
"[s 49] ""Year."" ""Month."".",
"Wherever the word ""year"" or the word ""month"" is used, it is to be understood that the",
year or the month is to be reckoned according to the British calendar.,
COMMENT—,
A person sentenced to imprisonment for the space of one calendar month is entitled to,
be discharged on the day in the succeeding month immediately preceding the day,
corresponding to that from which his sentence takes effect.329. The day on which a,
sentence is passed on a prisoner is calculated as a whole day.,
"329. Migotti v Colvill, (1879) 4 CPD 233 .",
THE INDIAN PENAL CODE,
CHAPTER II GENERAL EXPLANATIONS,
THIS Chapter is for the most part an elaborate interpretation clause. It is a key to the,
interpretation of the whole Code. The leading terms used are here defined and,
"explained and the meanings thus, announced are steadily adhered to throughout the",
subsequent chapters.,
"[s 50] ""Section."".",
"The word ""section"" denotes one of those portions of a Chapter of this Code which are",
distinguished by prefixed numeral figures.,
THE INDIAN PENAL CODE,
CHAPTER II GENERAL EXPLANATIONS,
THIS Chapter is for the most part an elaborate interpretation clause. It is a key to the,
interpretation of the whole Code. The leading terms used are here defined and,
"explained and the meanings thus, announced are steadily adhered to throughout the",
subsequent chapters.,
"[s 51] ""Oath."".",
"The word ""oath"" includes a solemn affirmation substituted by law for an oath, and any",
declaration required or authorized by law to be made before a public servant or to be,
"used for the purpose of proof, whether in a Court of Justice or not.",
COMMENT—,
"An oath is a religious asseveration, by which a person renounces the mercy, and",
"imprecates the vengeance of heaven, if he does not speak the truth.330. The form of",
oath differs according to the religious persuasion of the swearer. A Christian swears on,
"the Bible, a Jew upon the Pentateuch, a Mahommedan upon the Koran, and a Hindu on",
the Gita. A Hindu or a Mahommedan has the statutory right to be affirmed instead of,
taking an oath.,
"330. White v White, (1786) 1 Leach 430; U Vali Basha v Mohd. Bashu, (2008) Cr LJ 1011 (Karn).",
THE INDIAN PENAL CODE,
CHAPTER II GENERAL EXPLANATIONS,
THIS Chapter is for the most part an elaborate interpretation clause. It is a key to the,
interpretation of the whole Code. The leading terms used are here defined and,
"explained and the meanings thus, announced are steadily adhered to throughout the",
subsequent chapters.,
"[s 52] ""Good faith."".",
"Nothing is said to be done or believed in ""good faith"" which is done or believed without",
due care and attention.,
COMMENT—,
"The expression ""good faith"" in criminal jurisprudence has a definite connotation. Its",
import is totally different from saying that the person concerned has honestly believed,
the truth of what is said. See the language of the law in this regard. It starts in the,
negative tone excluding all except what is allowed to be within its amplitude. Insistence,
"sought to be achieved through the commencing words of the definition ""nothing is said",
"to be done or believed in good faith"" is that the solitary item included within the purview",
"of the expression ""good faith"" is what is done with ""due care and attention"". Due care",
denotes the degree of reasonableness in the care sought to be exercised. In Black's,
"Law Dictionary, ""reasonable care"" is explained as ""such a degree of care, precaution, or",
"diligence as may fairly and properly be expected or required, having regard to the",
"nature of the action, or of the subject matter and the circumstances surrounding the",
transaction. It is such care as an ordinary prudent person would exercise under the,
"conditions existing at the time he is called upon to act"".331. The element of honesty",
which is introduced by the definition prescribed by the General Clauses Act is not,
introduced by the definition of the Penal Code; and we are governed by the definition,
prescribed by section 52 of that Code.332. Nothing is an offence which is done by any,
"person who is justified by law, or who by reason of mistake of fact and not by reason of",
"mistake of law, in good faith, believes himself to be justified by law, in doing it.333.",
Some parents made poisonous propaganda against an educational institution. The,
"court said that this could not have been done by them in good faith. Hence, the",
exception to section 499 was not attracted. The complaint of defamation against them,
could not be quashed.334.,
[s 52.1] Burden of proof.—,
The burden is on the accused to prove this fact. Whether a person took due care and,
attention before he made the imputation is a matter most often within the personal,
knowledge of that person himself. The accused must prove that he made due enquiries,
before he published the imputation. It is not enough to say that he made a formal,
enquiry in a slipshod manner. The words 'due care and attention' imply that the accused,
must have made the enquiry in a reasonable manner with all circumspection. It is true,
that the accused is not bound to prove that the enquiry made by him was fool-proof or,
"without the possibility of any error or chance of mistake. However, the accused must",
show that he got the information from proper source and he had reasonable grounds to,
believe the truth of the statement he made. The accused must prove by preponderance,
of probability that there was good faith on his part. The accused also should show that,
"there was no malice on his part, that is to say, that there was no ill-will or spite towards",
the person against whom he made the imputation. What must ultimately be decided is,
the honesty of the accused in publishing the words complained of. So also the accused,
"are not entitled to exception 9 of section 499, IPC, 1860 merely on the reason that the",
publications were not made in good faith.335.,
Good faith is a question of fact to be considered and decided on the facts of each,
case. Section 52 of the Penal Code emphasizes due care and attention in relation to,
the good faith. In the General Clauses Act emphasis is laid on honesty.336. The,
"meaning of the expression ""good faith"" is what is done with ""due care and attention"".",
"Due care denotes the degree of reasonableness in the care sought to be exercised. So,",
"before a person proposes to make an imputation, he must first make an enquiry into",
the factum of the imputation which he proposes to make. It is not enough that he does,
just a make believe show for an enquiry. The enquiry expected of him is of such a depth,
as a reasonable and prudent man would make with the genuine intention in knowing,
the real truth of the imputation. If he does not do so he cannot claim that what he did,
"was bona fide i.e. done in good faith. Thus, a contemner, if he is to establish ""good",
"faith"" has to say that he conducted a reasonable and proper enquiry before making an",
imputation.337. The question of good faith must be considered with reference to the,
position of the accused and the circumstances under which he acted. 'Good faith',
requires not logical infallibility but due care and attention.338.,
"331. Re: SK Sundaram, AIR 2001 SC 2374 [LNIND 2000 KER 575] : (2001) 2 SCC 171 [LNIND",
2000 SC 1889] .,
"332. Harbhajan Singh v State of Punjab, AIR 1966 SC 97 [LNIND 1965 SC 65] : 1966 Cr LJ 82 .",
"333. Section 79 IPC, 1860.",
"334. Dogar Singh v Shobha Gupta, 1998 Cr LJ 1541 (P&H).",
"335. Damodra Shenoi v Public Prosecutor, Ernakulam, 1989 Cr LJ 2398 at 2400 (Ker). A",
declaration in newspapers 2½ months; after selling land by registered sale deed that the sale,
was under compulsion was held to be not made in good faith. The defence of exception 9 to,
"section 499 (defamation) was not available. P Swaminathan v Lakshmanan, 1992 Cr LJ 990",
(Mad).,
"336. R K Mohammed Ubaidullah v Hajee C Abdul Wahab, AIR 2001 SC 1658 [LNIND 2000 SC 924]",
: (2000) 6 SCC 402 [LNIND 2000 SC 924] See Assistant Commissioner Anti Evasion Commercial,
"Taxes Bharatpur v Amtek India Ltd, (2007) 11 SCC 407 [LNIND 2007 SC 210] : JT 2007 (4) SC 297",
"[LNIND 2007 SC 210] for definition of ""good faith"" in various enactments.",
"337. In the matter of RKaruppan, 2004 Cr LJ 4284 (Mad)(FB).",
"338. State of Orissa v Bhagaban Barik, AIR 1987 SC 1265 [LNIND 1987 SC 366] : (1987) 2 SCC",
"498 [LNIND 1987 SC 366] ; Chaman Lal v State of Punjab, AIR 1970 SC 1372 [LNIND 1970 SC",
106] : 1970 Cr LJ 1266 .,
THE INDIAN PENAL CODE,
CHAPTER II GENERAL EXPLANATIONS,
THIS Chapter is for the most part an elaborate interpretation clause. It is a key to the,
interpretation of the whole Code. The leading terms used are here defined and,
"explained and the meanings thus, announced are steadily adhered to throughout the",
subsequent chapters.,
"339.[[s 52A] ""Harbour.""",
"Except in section 157, and in section 130 in the case in which the harbour is given by",
"the wife or husband of the person harboured, the word ""harbour"" includes the",
"supplying a person with shelter, food, drink, money, clothes, arms, ammunition or",
"means or conveyance, or the assisting a person by any means, whether of the same",
"kind as those enumerated in this section or not, to evade apprehension.]",
COMMENT—,
"There are two hurdles in the way to adopt the IPC, 1860 definition of the word ""harbour""",
as for TADA. First is that TADA permits reliance to be made only on the definitions,
"included in the Procedure Code and not on the definitions in the IPC, 1860. Second is,",
"the word ""harbour"" as such has not been used in the Procedure Code and hence, the",
question of side-stepping to Penal Code definitions does not arise. Sections 136 and,
"312 of IPC, 1860 are the provisions incorporating two of the offences involving",
"""harbour"" in which the common words used are ""whoever knowing or having reason to",
"believe. Another offence in the Penal Code involving ""harbour"" is section 157 wherein",
"also the words ""whoever harbours knowing that such person etc."" are available. It was",
contended that mens rea is explicitly indicated in the said provisions in the Penal Code,
"whereas no such indication is made in section 3(4) of TADA and therefore, the element",
of mens rea must be deemed to have been excluded from the scope of section 3(4) of,
"TADA. The word ""harbours"" used in TADA must be understood in its ordinary meaning",
as for penal provisions.340.,
"339. Ins. by Act 8 of 1942, section 2 (w.e.f. 14-2-1942).",
"340. Kalpnath Rai v State, AIR 1998 SC 201 [LNIND 1997 SC 1396] : (1997) 8 SCC 732 .",
THE INDIAN PENAL CODE,
CHAPTER II GENERAL EXPLANATIONS,
THIS Chapter is for the most part an elaborate interpretation clause. It is a key to the,
interpretation of the whole Code. The leading terms used are here defined and,
"explained and the meanings thus, announced are steadily adhered to throughout the",
subsequent chapters.,
"339.[[s 52A] ""Harbour.""",
"Except in section 157, and in section 130 in the case in which the harbour is given by",
"the wife or husband of the person harboured, the word ""harbour"" includes the",
"supplying a person with shelter, food, drink, money, clothes, arms, ammunition or",
"means or conveyance, or the assisting a person by any means, whether of the same",
"kind as those enumerated in this section or not, to evade apprehension.]",
COMMENT—,
"There are two hurdles in the way to adopt the IPC, 1860 definition of the word ""harbour""",
as for TADA. First is that TADA permits reliance to be made only on the definitions,
"included in the Procedure Code and not on the definitions in the IPC, 1860. Second is,",
"the word ""harbour"" as such has not been used in the Procedure Code and hence, the",
question of side-stepping to Penal Code definitions does not arise. Sections 136 and,
"312 of IPC, 1860 are the provisions incorporating two of the offences involving",
"""harbour"" in which the common words used are ""whoever knowing or having reason to",
"believe. Another offence in the Penal Code involving ""harbour"" is section 157 wherein",
"also the words ""whoever harbours knowing that such person etc."" are available. It was",
contended that mens rea is explicitly indicated in the said provisions in the Penal Code,
"whereas no such indication is made in section 3(4) of TADA and therefore, the element",
of mens rea must be deemed to have been excluded from the scope of section 3(4) of,
"TADA. The word ""harbours"" used in TADA must be understood in its ordinary meaning",
as for penal provisions.340.,
"339. Ins. by Act 8 of 1942, section 2 (w.e.f. 14-2-1942).",
"340. Kalpnath Rai v State, AIR 1998 SC 201 [LNIND 1997 SC 1396] : (1997) 8 SCC 732 .",
THE INDIAN PENAL CODE,
CHAPTER III OF PUNISHMENTS,
"[s 53] ""Punishments."".",
The punishments to which offenders are liable under the provisions of this Code are—,
First.—Death;,
1. [Secondly.—Imprisonment for life;],
2. [***],
"Fourthly.—Imprisonment, which is of two descriptions, namely:—",
"(1) Rigorous, that is, with hard labour;",
(2) Simple;,
Fifthly.—Forfeiture of property;,
Sixthly.—Fine.,
COMMENT—,
The object of punishment in the scheme of modern social defence is correction of the,
wrongdoer and not wrecking gratuitous punitive vengeance on the criminal. Some,
attempts have been made to modernise our penal system through piecemeal,
"legislation at best for the first offenders, the children and the juvenile delinquents",
"example the Probation of Offenders Act 1958, the Juvenile Justice (Care and",
"Protection of Children) Act 2000, Juvenile Justice (Care and Protection of Children) Act,",
"2015 etc. In the Indian Penal Code, there is no scope for individualising the punishment;",
rather these five forms of punishment have to be doled out to the offenders irrespective,
of their psycho-social problems and needs of individual offenders. Commenting on this,
"unhappy aspect of our penal system Krishna iyer, J, observed in Shivaji's case'.3.",
Two men in their twenties thus stand convicted of murder and have to suffer imprisonment,
for life because the punitive strategy of our Penal Code does not sufficiently reflect the,
modern trends in correctional treatment and personalised sentencing. When accused,
persons are of tender age then even in a murder case it is not desirable to send them,
beyond the high prison walls and forget all about their correction and eventual reformation.,
In Inder Singh's case4. the Supreme Court issued directions to the State Government to,
see that the young accused of the case are not given any degrading work and they are,
given the benefit of liberal parole every year if their behaviour shows responsibility and,
"trustworthiness. Moreover, the Sessions Judge was directed to make jail visits to",
ensure compliance with these directions.,
[s 53.1] Object of Punishment.—,
"One of the prime objectives of criminal law is imposition of appropriate, adequate, just",
and proportionate sentence commensurate with the nature and gravity of crime and,
the manner in which the crime is done.5. Undue sympathy by means of imposing,
inadequate sentence would do more harm to the justice system and undermine the,
public confidence in the efficacy of law.6. The object should be to protect the society,
and to deter the criminal in achieving the avowed object to law by imposing appropriate,
sentence. It is expected that the Courts would operate the sentencing system so as to,
impose such sentence which reflects the conscience of the society and the sentencing,
process has to be stern where it should be.7. The main purpose of the sentence broadly,
stated is that the accused must realise that he has committed an act which is not only,
harmful to the society of which he forms an integral part but is also harmful to his own,
"future, both as an individual and as a member of the society. Punishment is designed",
to protect society by deterring potential offenders as also by preventing the guilty party,
from repeating the offence; it is also designed to reform the offender and re-claim him,
"as a law-abiding citizen for the good of the society as a whole. Reformatory, deterrent",
and punitive aspects of punishment thus play their due part in judicial thinking while,
"determining this question. In modern civilized societies, however, reformatory aspect is",
being given somewhat greater importance. Too lenient as well as too harsh sentences,
both lose their efficaciousness. One does not deter and the other may frustrate thereby,
making the offender a hardened criminal.8.,
[s 53.2] Different Approaches.—,
Punishment in criminal cases is both punitive and reformative. The purpose is that the,
person found guilty of committing the offence is made to realise his fault and is,
"deterred from repeating such acts in future. On the commission of crime, three types of",
reactions may generate; the traditional reaction of universal nature which is termed as,
punitive approach. It regards the criminal as a notoriously dangerous person who must,
be inflicted severe punishment to protect the society from his criminal assaults. The,
other approach is the therapeutic approach. It regards the criminal as a sick person,
"requiring treatment, while the third is the preventive approach, which seeks to eliminate",
"those conditions from the society, which were responsible for crime causation. Under",
"the punitive approach, the rationalisation of punishment is based on retributive and",
"utilitarian theories. Deterrent theory, which is also part of the punitive approach,",
proceeds on the basis that the punishment should act as a deterrent not only to the,
"offender, but also to others in the community. The therapeutic approach aims at curing",
"the criminal tendencies, which were the product of a diseased psychology. Therapeutic",
"approach has since been treated as an effective method of punishment, which not only",
satisfies the requirements of law that a criminal should be punished and the,
"punishment prescribed must be meted out to him, but also reforms the criminal",
"through various processes, the most fundamental of which is that in spite of having",
"committed a crime, may be a heinous crime, he should be treated as a human being",
"entitled to all the basic human rights, human dignity and human sympathy. It was under",
"this theory that this Court in a stream of decisions, projected the need for prison",
"reforms, the need to acknowledge the vital fact that the prisoner, after being lodged in",
"jail, does not lose his fundamental rights or basic human rights and that he must be",
treated with compassion and sympathy.9. Imposing a hard punishment on the accused,
"serves a limited purpose, but at the same time, it is to be kept in mind that relevance of",
deterrent punishment in matters of serious crimes affecting society should not be,
undermined. Within the parameters of the law an attempt has to be made to afford an,
"opportunity to the individual to reform himself and lead life of a normal, useful member",
of society and make his contribution in that regard.10. In Dhannajoy Chatterjee v State of,
"WB,11. the Supreme Court has observed that shockingly large number of criminals go",
"unpunished, thereby increasingly encouraging the criminals and ultimately making",
justice suffer by weakening the system's credibility. Realising that it is not the brutality,
"of punishment but its surety that serves as a greater deterrent, our Supreme Court held",
that a barbaric crime does not have to be visited with a barbaric penalty such as public,
hanging which will be clearly violative of Article 21 of the Constitution.12. With regards,
"the question of punishment, it should be noted that punishment in one matter cannot",
be the guiding factor for punishment in another. Punishment has a co-relation with,
"facts and in each case where punishment is imposed, the same must be the resultant",
"effect of the acts complained of. More serious the violation, more severe is the",
"punishment and that has been the accepted norm, in matters though, however, within",
the prescribed limits.13.,
[s 53.3] Reformation Theory.—,
The reformative aspect is meant to enable the person concerned to relent and repent,
for his action and make himself acceptable to the society as a useful social being.14.,
Theory of reformation through punishment is grounded on the sublime philosophy that,
every man is born good but circumstances transform him into a criminal. The aphorism,
"that ""if every saint has a past every sinner has a future"" is a tested philosophy",
"concerning human life. VR Krishna Iyer, J, has taken pains to ornately fresco the",
reformative profile of the principles of sentencing in Mohammad Giasuddin v State of,
AP.15. Reformation should hence be the dominant objective of a punishment and,
"during incarceration, every effort should be made to recreate the good man out of",
convicted prisoner. An assurance to him that his hard labour would eventually snowball,
into a handsome saving for his own rehabilitation would help him to get stripped of the,
moroseness and desperation in his mind while toiling with the rigours of hard labour,
"during the period of his jail life. Thus, reformation and rehabilitation of a prisoner are of",
"great public policy. Hence, they serve a public purpose.16. Punishment is also to reform",
such wrongdoers not to commit such offence in future.17.,
[s 53.4] Deterrence.—,
Deterrence is one of the vital considerations of punishment. Law demands that the,
"offender should be adequately punished for the crime, so that it can deter the offender",
and other persons from committing similar offences. Nature and circumstances of the,
offence; the need for the sentence imposed to reflect the seriousness of the offence; to,
afford adequate deterrence to the conduct and to protect the public from such crimes,
are certain factors to be considered while imposing the sentence.18. Any liberal attitude,
by imposing meagre sentences or taking too sympathetic view merely on account of,
lapse of time or personal inconveniences in respect of such offences will be result-wise,
counterproductive in the long run and against societal interest which needs to be cared,
for and strengthened by string of deterrence built in the sentencing system.19. For,
"instance, a murder committed due to deep-seated mutual and personal rivalry may not",
"call for penalty of death. However, an organised crime or mass murders of innocent",
people would call for imposition of death sentence as deterrence.20. Protection of,
society and deterring the criminal is the avowed object of law and is required to be,
achieved by imposing an appropriate sentence. The sentencing Courts are expected to,
consider all relevant facts and circumstances bearing on the question of sentence and,
proceed to impose a sentence commensurate with the gravity of the offence. Courts,
must hear the loud cry for justice by the society in cases of heinous crimes like rape on,
"innocent helpless girls of tender years, as in this case, and respond by imposition of",
proper sentence. Public abhorrence of the crime needs reflection through imposition of,
appropriate sentence by the Court. To show mercy in the case of such a heinous crime,
would be a travesty of justice.21. To give a lesser punishment to the appellants would,
be to render the justice system of this country suspect. The common man will lose,
"faith in the Courts. In such cases, he understands and appreciates the language of",
deterrence more than the reformative jargon.22. Punishment to an accused in criminal,
jurisprudence is not merely to punish the wrongdoer but also to strike warning to those,
who are in the same sphere of crime or to those intending to join in such crime.23.,
[s 53.5] Principles of sentencing.—,
Sentencing is an important task in the matters of crime. There is no straitjacket,
"formula for sentencing an accused on proof of crime. In practice, there is much",
"variance in the matter of sentencing. In many countries, there are laws prescribing",
"sentencing guidelines, but there is no statutory sentencing policy in India.24. The Indian",
Penal Code provides discretion to Indian Judges while awarding the sentence.25.,
Courts have wide discretion in awarding sentence within the statutory limits.26. The,
Courts have evolved certain principles: twin objective of the sentencing policy is,
deterrence and correction.27. There are many philosophies behind sentencing justifying,
"penal consequences. The philosophical/jurisprudential justification can be retribution,",
"incapacitation, specific deterrence, general deterrence, rehabilitation, or restoration.",
"Anyone or a combination thereof can be the goal of sentencing. However, when it",
"comes to sentencing a person for committing a heinous crime, the deterrence theory",
"as a rationale for punishing the offender becomes more relevant. In such cases, the",
"role of mercy, forgiveness and compassion becomes secondary and while determining",
"the quantum of sentence, discretion lies with the Court. While exercising such a",
"discretion, the Court has to govern itself by reason and fair play, and discretion is not to",
be exercised according to whim and caprice. It is the duty of the Court to impose,
"adequate sentence, for one of the purposes of imposition of requisite sentence is",
protection of the society and a legitimate response to the collective conscience. While,
"considering as to what would be the appropriate quantum of imprisonment, the Court",
"is empowered to take into consideration mitigating circumstances, as well as",
aggravating circumstances.28. What sentence would meet the ends of justice depends,
on the facts and circumstances of each case and the Court must keep in mind the,
"gravity of the crime, motive for the crime, nature of the offence and all other attendant",
circumstances.29. The criminal law adheres in general to the principle of proportionality,
in prescribing liability according to the culpability of each kind of criminal conduct. It,
ordinarily allows some significant discretion to the Judge in arriving at a sentence in,
"each case, presumably to permit sentences that reflect more subtle considerations of",
culpability that are raised by the special facts of each case. Judges in essence affirm,
"that punishment ought always to fit the crime; yet in practice, sentences are",
determined largely by other considerations. Sometimes it is the correctional needs of,
"the perpetrator that are offered to justify a sentence, sometimes the desirability of",
"keeping him out of circulation, and sometimes even the tragic results of his crime.",
"Inevitably, these considerations cause a departure from just desert as the basis of",
punishment and create cases of apparent injustice that are serious and widespread.30.,
"Proportion between crime and punishment is a goal respected in principle, and in spite",
"of errant notions, it remains a strong influence in the determination of sentences. The",
practice of punishing all serious crimes with equal severity is now unknown in civilized,
"societies, but such a radical departure from the principle of proportionality has",
"disappeared from the law only in recent times. Even now for a single grave infraction,",
drastic sentences are imposed. Anything less than a penalty of greatest severity for,
any serious crime is thought then to be a measure of toleration that is unwarranted and,
"unwise. But in fact, quite apart from those considerations that make punishment",
"unjustifiable when it is out of proportion to the crime, uniformly disproportionate",
punishment has some very undesirable practical consequences.31. The principle of,
proportionality in sentencing a crime doer is well entrenched in criminal jurisprudence.,
"As a matter of law, proportion between crime and punishment bears most relevant",
influence in determination of sentencing the crime doer. The Court has to take into,
consideration all aspects including social interest and consciousness of the society for,
award of appropriate sentence.32. Undue sympathy to impose inadequate sentence,
would do more harm to the justice system to undermine the public confidence in the,
efficacy of law and society could not long endure under such serious threats.,
Imposition of sentence without considering its effect on the social order in many cases,
may be in reality a futile exercise. The social impact of the crime e.g. where it relates to,
"offences against women, dacoity, kidnapping, misappropriation of public money,",
treason and other offences involving moral turpitude or moral delinquency which have,
"great impact on social order and public interest, cannot be lost sight of and per se",
require exemplary treatment. Any liberal attitude by imposing meagre sentences or,
taking too sympathetic view merely on account of lapse of time in respect of such,
offences will be result wise counterproductive in the long run and against societal,
interest which needs to be cared for and strengthened by a string of deterrence inbuilt,
in the sentencing system.33. Undue sympathy to impose inadequate sentence would do,
more harm to the justice system to undermine the public confidence in the efficacy of,
"law and society could not long endure under such serious threats. It is, therefore, the",
duty of every Court to award proper sentence keeping in mind the nature of the offence,
"and the manner in which it was executed or committed etc. Thus, it is evident that",
Criminal Law requires strict adherence to the rule of proportionality in providing,
punishment according to the culpability of each kind of criminal conduct keeping in,
mind the effect of not awarding just punishment on the society.34. An undeserved,
indulgence or liberal attitude in not awarding adequate sentence in such cases would,
amount to allowing or even to encouraging 'potential criminals'. The society can no,
longer endure under such serious threats. Courts must hear the loud cry for justice by,
society in cases of heinous crime of rape and impose adequate sentence. Public,
abhorrence of the crime needs reflection through imposition of appropriate sentence,
by the Court.35.,
[s 53.6] Factors to be considered.—,
These are some factors which are required to be taken into consideration before,
awarding appropriate sentence to the accused. These factors are only illustrative in,
character and not exhaustive. Each case has to be seen from its special perspective.,
The relevant factors are as under:,
(a) Motive or previous enmity;,
(b) Whether the incident had taken place on the spur of the moment;,
(c) The intention/knowledge of the accused while inflicting the blow or injury;,
(d) Whether the death ensued instantaneously or the victim died after several days;,
"(e) The gravity, dimension and nature of injury;",
(f) The age and general health condition of the accused;,
(g) Whether the injury was caused without pre-meditation in a sudden fight;,
(h) The nature and size of weapon used for inflicting the injury and the force with which,
the blow was inflicted;,
(i) The criminal background and adverse history of the accused;,
(j) Whether the injury inflicted was not sufficient in the ordinary course of nature to,
cause death but the death was because of shock;,
(k) Number of other criminal cases pending against the accused;,
(l) Incident occurred within the family members or close relations;,
(m) The conduct and behaviour of the accused after the incident. Whether the accused,
had taken the injured/the deceased to the hospital immediately to ensure that he/she,
gets proper medical treatment?,
These are some of the factors which can be taken into consideration while granting an,
appropriate sentence to the accused.,
The list of circumstances enumerated above is only illustrative and not exhaustive. In,
"our considered view, proper and appropriate sentence to the accused is the bounded",
obligation and duty of the Court. The endeavour of the Court must be to ensure that the,
"accused receives appropriate sentence, in other words, sentence should be according",
to the gravity of the offence. These are some of the relevant factors which are required,
to be kept in view while convicting and sentencing the accused.36. The facts and given,
"circumstances in each case, the nature of the crime, the manner in which it was",
"planned and committed, the motive for commission of the crime, the conduct of the",
"accused, the nature of weapons used and all other attending circumstances are",
relevant facts which would enter into the area of consideration.37.,
[s 53.7] Judicial Discretion:38. Cases.—,
A Judge has wide discretion in awarding the sentence within the statutory limits. Since,
"in many offences, only the maximum punishment is prescribed and for some offences",
"the minimum punishment is prescribed, each Judge exercises his discretion",
"accordingly.39. In case where for an offence, maximum imprisonment is prescribed and",
"there is no provision for minimum imprisonment, the Court can exercise wide",
discretion imposing any imprisonment which may be from one day (or even till the,
"rising of the court) to ten years/life.40. However, the Courts will have to take into",
"account certain principles while exercising their discretion in sentencing, such as",
"proportionality, deterrence and rehabilitation. In a proportionality analysis, it is",
necessary to assess the seriousness of an offence in order to determine the,
commensurate punishment for the offender.41. Though punishment is the discretion of,
"the Court, yet it must be exercised judicially and where circumstances call for a",
"deterrent punishment, it ought to be awarded in an appropriate case.42. Thus where the",
"accused, a young man of 22 committed multiple murders for sheer gain in a most",
"cruel, callous and fiendish fashion, there was no way to show him any mercy as it was",
rarest of the rare cases where a sentence of death was fully justified.43. In exercising,
"this discretion, the Court must consider the gravity of the offence, the mitigating or the",
extenuating circumstances of the case which may justify the award of the lesser or,
"maximum sentence.44. Where the accused was a youth of 19, the Supreme Court while",
"upholding conviction under section 304-Part I, Indian Penal Code, 1860, (IPC, 1860)",
reduced his sentence to the period already undergone which was 18 and a half months,
"in the instant case. The accused, a Government servant, who will lose pensionary",
"benefits due to conviction, deserves to be treated leniently.",
The Supreme Court has laid down that in cases of death in custody on account of third,
"degree methods, deterrent punishment should be awarded.45. Where certain police",
"officials, who took a man illegally in their custody and gave him beating due to which he",
"died, were convicted under section 342, it was held that the facts that one of the",
"accused was recipient of a medal from the President for saving a life, was awarded Rs.",
"5,000 by the State Government also and was suffering from T.B. and the other accused",
"had acted on the direction of his superior, were not mitigating circumstances and the",
accused were liable to be punished with the maximum sentence.46.,
"Where due to dire poverty the accused killed his ailing wife, as he could not provide",
"money for her operation and thereafter killed his two children, as they would be",
"neglected after their mother's death, it was held the accused deserved to be awarded",
life imprisonment and not capital punishment.47. Where the murder in question showed,
"signs of ruthless, unrelenting and determined vindictiveness and though the accused",
"was 55 at the time of occurrence and 70 at the time of this appeal, the Supreme Court",
"did not think it necessary to modify his sentence of life imprisonment.48. Similarly,",
"where murders were committed for gain, the Supreme Court refused to interfere with",
death sentence only because the condemned prisoners were very young and their,
"wives and children and aged parents were dependent on them. Such considerations,",
"the Court said, are present in most cases.49. Where, for the offence of dacoity under",
"section 395, the trial Court awarded three years' R.I., the High Court acquitted the",
"offenders, but the Supreme Court restored the conviction after a long gap during which",
"they got married and had resumed normal life, the period already undergone was",
"considered to be sufficient, but a fine of Rs. 3,000 was imposed on each of them.50.",
"Where a conviction under section 16I, IPC, 1860 read with section 5(2) of the",
"Prevention of Corruption Act, 1988 was confirmed, the Gujarat High Court modified the",
sentence of R.I. for one year and ordered that the appellant shall undergo sentence of,
R.I. for six months only. This was done in view of his age of 60 years and a number of,
illnesses he was suffering from.51. The accused had been out of job for nearly 16 years,
and had undergone the trial for a number of years. He was 65 years old but had,
"received no pension and had a large family to maintain. Hence, the Supreme Court",
"while confirming the conviction, reduced the sentence of one year R.I. each under",
section 161 and the Prevention of Corruption Act to 15 days R.I. on each count. The,
sentence of fine was however confirmed.52. Where the accused had accepted a very,
small amount of Rs. 30 as bribe about 16 years back and underwent the agony of trial,
"for a long time and had to support his family, he had been in jail for some time during",
"trial, considering these facts his sentence of imprisonment was reduced from three",
months R.I. to the period already undergone.53.,
Imposition of proper and appropriate sentence is bounded obligation and duty of the,
Court. The endeavour of the Court must be to ensure that the accused received,
appropriate sentence. The sentence must be accorded to the gravity of the offence.54.,
[s 53.8] Minimum Sentence.—,
In order to exercise the discretion of reducing the sentence the statutory requirement is,
"that the Court has to record ""adequate and special reasons"" in the judgment and not",
"fanciful reasons, which would permit the Court to impose a sentence less than the",
prescribed minimum. The reason has not only to be adequate but also special. What is,
adequate and special would depend upon several factors and no straitjacket formula,
can be indicated.55. Mere absence of provisions for minimum sentence is no reason or,
justification to treat the offence under the Act (NDPS) as any less serious.56.,
"For the offence of murder, minimum sentence is 'life imprisonment'. Thus, the High",
Court cannot modify the sentence of life imprisonment awarded by the Trial Court to,
the one already undergone.57.,
"To the five kinds of punishments in the section, two more were added by subsequent",
"enactments, viz., whipping (now abolished) and detention in reformatories.",
1. Death.—Death punishment is awarded for murder in rarest of the rare cases.58. It,
may be awarded as punishment for the following offences:—,
(1) Waging war against the Government of India (section 121).,
(2) Abetting mutiny actually committed (section 132).,
(3) Giving or fabricating false evidence upon which an innocent person suffers death,
(section 194).,
(4) Threatening or inducing any person to give false evidence- if innocent person is,
"convicted and sentenced in consequence of such false evidence, with death (195A-Part",
II),
(5) Murder (section 302).,
"(6) Abetment of suicide of a minor, or an insane or an intoxicated person (section 305).",
(7) Attempt to murder by life convicts (section 307-PartII),
"(8) Kidnapping for ransom, etc. (section 364A)",
(9) Causing death or resulting in persistent vegetative state of rape victim (section,
376A),
(10) Repeat offenders of offences punishable under section 376 or section 376A or,
section 376D (section 376E),
(11) Dacoity accompanied with murder (section 396).,
"(12) Attempt to murder by a person under sentence of imprisonment for life, if hurt is",
caused (section 307). [For the detailed discussion on Death Penalty See Comments,
under section 302 IPC].,
"In addition to this, Death penalty can be imposed by virtue of section 34, 149,109 and",
120B of IPC.,
"2. Imprisonment for life is now substituted for transportation. ""Imprisonment for life"" in",
"the Code means ""rigorous imprisonment for life"" and not ""simple imprisonment for",
"life"".59.",
3. Imprisonment.—Imprisonment is of two kinds: (a) rigorous and (b) simple. In the,
"case of rigorous imprisonment, the offender is put to hard labour such as grinding corn,",
"digging earth, drawing water, cutting firewood, bowing wool, etc. In the case of simple",
"imprisonment, the offender is confined to jail and is not put to any kind of work.",
Imposition of hard labour on prisoners undergoing rigorous imprisonment has been,
held to be legal.60.,
"The minimum term of imprisonment, however, is fixed in the following two cases: (1) If,",
"at the time of committing robbery or dacoity, the offender uses any deadly weapon, or",
"causes grievous hurt to any person, he is punished with imprisonment of not less than",
seven years (section 397).,
"(2) If, at the time of attempting to commit robbery or dacoity, the offender is armed",
"with any deadly weapon, he is punished with imprisonment of not less than seven years",
(section 398).,
The Criminal Law (Amendment) Act 2013 [Act No. 13 of 2013 w.e.f 2 April 2013],
provides minimum punishment for the following offences:,
"(1) Public servant disobeying direction under law- Imprisonment for a term, which",
shall not be less than six months. (section 166A),
"(2) Voluntarily causing grievous hurt by use of acid, etc.- Imprisonment for not less",
than ten years. (section 326A),
(3) Outraging the modesty of a woman- Imprisonment of either description for a,
term which shall not be less than one year (section 354),
(4) Assault or use of criminal force to woman with intent to disrobe- Imprisonment,
of not less than three years. (section 354B),
(5) Voyeurism- Imprisonment of not less than one year. (section 354C),
"(6) Trafficking of person- Seven years [section 370(2)], ten years [sections 370(3),",
"(4)], 14 years [section 370(5)],",
(7) Exploitation of a trafficked child- Imprisonment of not less than five years but,
which may extend to seven years and with fine. (section 370A),
"(8) Rape- Seven years [section 376(1)], ten years [section 376(2)].",
(9) Causing death or resulting in persistent vegetative state of victim- Imprisonment,
for a term which shall not be less than 20 years (section 376A),
(10) Sexual intercourse by husband upon his wife during separation- Imprisonment,
of either description for a term which shall not be less than two years (section,
376B),
(11) Sexual intercourse by a person in authority- Imprisonment of either description,
for a term which shall not be less than five years. (section 376C),
"(12) Gang rape- Imprisonment for a term, which shall not be less than 20 years.",
(section 376D).,
"The Criminal Law (Amendment) Act, 2018 has further amended the Indian Penal Code",
"1860. The Criminal Law (Amendment) Act, 2018 has increased the minimum sentence",
in section 376(1) from seven years to ten years. The 2018 Amendment Act has inserted,
"sections 376AB, 376DA and 376DB which provide for enhanced punishment in certain",
aggravated forms of rape. Refer Chapter XVI infra.,
An offender is punished with rigorous imprisonment without the alternative of simple,
"imprisonment, in the cases of—",
"(1) Giving or fabricating false evidence with intent to procure conviction of an offence,",
which is capital by this Code (section 194).,
"(2) Rape (sections 376, 376A, 376AB, 376C, 376D, 376DA, 376DB and 376E)",
(3) House-trespass in order to the commission of an offence punishable with death,
(section 449).,
The following offences are punishable with simple imprisonment only:—,
(1) Public servant unlawfully engaging in trade; or unlawfully buying or bidding for,
"property (sections 168, 169).",
(2) A person absconding to avoid service of summons or other proceedings from a,
"public servant or preventing service of summons or other proceedings, or preventing",
publication thereof; or not attending in obedience to an order from a public servant,
"(sections 172, 173, 174).",
(3) Intentional omission to produce a document to a public servant by a person legally,
bound to produce such document; or intentional omission to give notice or information,
to a public servant by a person legally bound to give; or intentional omission to assist a,
"public servant when bound by law to give assistance (sections 175, 176, 187).",
(4) Refusing oath when duly required to take oath by a public servant; or refusing to,
answer a public servant authorised to question or refusing to sign any statement made,
"by a person himself before a public servant (sections 178, 179, 180).",
(5) Disobedience to an order duly promulgated by a public servant if such disobedience,
"causes obstruction, annoyance, or injury (section 188).",
(6) Escape from confinement negligently suffered by a public servant; or negligent,
"omission to apprehend, or negligent sufferance of escape, on the part of a public",
"servant in cases not otherwise provided for (sections 223, 225-A).",
(7) Intentional insult or interruption to a public servant sitting in any stage of a judicial,
proceeding (section 228).,
(8) Continuance of nuisance after injunction to discontinue (section 291).,
(9) Wrongful restraint (section 341).,
"(10) Defamation: printing or selling defamatory matter known to be so (sections 500,",
"501, 502).",
"(11) Uttering any word, or making any sound or gesture, with an intention to insult the",
modesty of a woman (section 509).,
(12) Misconduct in a public place by a drunken person (section 510).61.,
[s 53.9] Imprisonment for the remainder of the Accused's natural life.—,
"As per the Criminal Law (Amendment) Act, 2013,62. the punishment for rape (section",
"376) is rigorous imprisonment for a term which shall not be less than ten years, but",
"which may extend to imprisonment for life, which shall mean imprisonment for the",
"remainder of that person's natural life, and shall also be liable to fine. In sections 370,",
"376(A), 376(D), 376(E) it is also specifically mentioned that 'Life' shall mean",
imprisonment for the remainder of that person's natural life. The Criminal Law,
"(Amendment) Act, 2018 has increased the minimum sentence in section 376(1) from",
"seven years to ten years as well as inserted sections 376AB, 376DA and 376DB which",
provide for enhanced punishment in certain aggravated forms of rape. Refer Chapter,
XVI infra.,
Spending 13 and half years in jail does not mean that the petitioner has undergone a,
sentence for life.63.,
4. Forfeiture.—The punishment of absolute forfeiture of all property of the offender is,
"now abolished. Sections 61 and 62 of the IPC, 1860 dealing with such forfeiture are",
repealed by Act XVI of 1921.,
"There are, however, three offences in which the offender is liable to forfeiture of",
"specific property. They are sections 126, 127 and 169 of the Code.64.",
5. Fine.—Fine is the only punishment in the following cases:—,
"(1) A person in charge of a merchant vessel, negligently allowing a deserter from the",
"Army or Navy or Air Force to obtain concealment in such vessel, is liable to a fine not",
exceeding Rs. 500 (section 137).,
(2) The owner or occupier of land on which a riot is committed or an unlawful assembly,
"is held, and any person having or claiming any interest in such land, and not using all",
"lawful means to prevent such riot or unlawful assembly, is punishable with a fine not",
"exceeding Rs. 1,000 (section 154).",
(3) The person for whose benefit a riot has been committed not having duly,
endeavoured to prevent it (section 155).,
(4) The agent or manager of such person under like circumstances (section 156).,
(5) False statements in connection with an election (section 171-G).,
(6) Illegal payments in connection with an election (section 171-H).,
(7) Failure to keep election accounts (section 171-I).,
"(8) Voluntarily vitiating the atmosphere so as to render it noxious to the public health, is",
punishable with a fine up to Rs. 500 (section 278).,
"(9) Obstructing a public way or line of navigation, is punishable with a fine not",
exceeding Rs. 200 (section 283).,
(10) Committing of a public nuisance not otherwise punishable is punishable with a,
fine not exceeding Rs. 200 (section 290).,
"(11) Publication of a proposal regarding a lottery, is punishable with a fine not",
"exceeding Rs. 1,000 (section 294-A).",
Where the accused partners of a firm were acquitted on a charge under section 420 of,
making substantial gains for themselves and an appeal against their acquittal was,
"decided against them 15 years after the acquittal, fine and not imprisonment was",
considered proper punishment.65. Where the murder accused remained in prison for,
"sometime and was on bail for 13 years, he was not committed to prison; a fine of Rs.",
"50,000 in addition to the imprisonment already undergone was imposed, he being a",
young man.66. Where the accused along with others convicted under section 323 for,
"six months' imprisonment had already undergone an imprisonment of one year and,",
"looking at his good conduct inside jail and lest he should lose his service, he was given",
the benefit of section 3 of the Probation of Offenders Act 1958 so to assure that his,
conviction should not affect his service.67.,
[s 53.10] Rigorous and Simple imprisonment.—,
"Section 53 of the IPC, 1860 defines five kinds of punishment which includes",
"punishment for life and two other kinds of imprisonment, i.e., rigorous and simple",
imprisonment. Rigorous imprisonment is one which is required by law to be completed,
with hard labour. There are principally two categories of prisoners: (1) under trial,
prisoners and (2) convicted prisoners (Besides them there are those detained as,
"preventive measure, and those undergoing detention for default of payment of fine). A",
person sentenced to simple imprisonment cannot be required to work unless he,
"volunteers himself to do the work. However, the Jail officer who requires a prisoner",
sentenced to rigorous imprisonment to do hard labour would be doing so as enjoined,
"by law and mandated by the Court.68. Thus, while a person sentenced to simple",
"imprisonment has the option of choosing to work, a person sentenced to rigorous",
imprisonment is required by law to undergo hard labour. The under trials are not,
required to work in Jail.69. Section 60 of the Indian Penal Code confers power on a,
"sentencing Court to direct that ""such imprisonment shall be wholly rigorous or that",
"such imprisonment shall be wholly simple, or that any part of such imprisonment shall",
"be rigorous and the rest simple."" The sentence of ""imprisonment for life"" tagged along",
"with a number of offences delineated in the IPC, 1860 is interpreted as ""rigorous",
"imprisonment for life"" and not simple imprisonment.70.",
Supreme Court Guidelines regarding employment of prisoners and wages.—,
(1) It is lawful to employ the prisoners sentenced to rigorous imprisonment to do hard,
labour whether he consents to do it or not.,
(2) It is open to the jail officials to permit other prisoners also to do any work which,
they choose to do provided such prisoners make a request for that purpose.,
(3) It is imperative that the prisoner should be paid equitable wages for the work done,
by them. In order to determine the quantum of equitable wages payable to prisoners,
the State concerned shall constitute a wage fixation body for making,
recommendations. We direct each State to do so as early as possible.,
(4) Until the State Government takes any decision on such recommendations every,
prisoner must be paid wages for the work done by him at such rates or revised rates as,
the Government concerned fixes in the light of the observations made above. For this,
purpose we direct all the State Governments to fix the rate of such interim wages within,
six weeks from today and report to this Court of compliance of this direction.,
(5) We recommend to the State concerned to make law for setting apart a portion of,
the wages earned by the prisoners to be paid as compensation to deserving victims of,
the offence the commission of which entailed the sentence of imprisonment to the,
"prisoner, either directly or through a common fund to be created for this purpose or in",
any other feasible mode.,
[State of Gujarat v Hon'ble High Court of Gujarat.71.],
[s 53.11] Rights of Convicts.—,
"Convicts are not, by mere reason of the conviction, denuded of all the fundamental",
"rights which they otherwise possess. A compulsion under the authority of law,",
"following upon a conviction, to live in a prison house entails by its own force the",
deprivation of fundamental freedoms like the right to move freely throughout the,
"territory of India or the right to ""practise"" a profession. A man of profession would thus",
stand stripped of his right to hold consultations while serving out his sentence. But the,
"Constitution guarantees other freedoms like the right to acquire, hold and dispose of",
"property for the exercise of which incarceration can be no impediment, likewise, even a",
convict is entitled to the precious right guaranteed by Article 21 of the Constitution that,
he shall not be deprived of his life or personal liberty except according to procedure,
established by law.72.,
[s 53.12] Cases of Leniency.—,
"In a given situation, where it is demonstrated that during the pendency of the",
proceedings the accused has undergone a lot of suffering such as where the accused,
"was in custody or for that matter, in situations where the accused is suspended and is",
on a subsistence allowance or where as a result of the prosecution the consequences,
"have been so disastrous that the accused has suffered virtual ruination, these aspects",
alone would be valid justification on which a plea for leniency could be based. On the,
"other hand, one needs to bear in mind that the consequences of criminal acts catch up",
with the accused particularly when the crimes are against the society the ethical,
concept of forgive and forget merely because the incident took place in the distant past,
will not hold good in a Court of Law.73. Where there was acquittal in the same year in,
which the crime was committed but the acquittal was reversed after eight years and,
conviction and jail terms were awarded and appeal against this order was disposed of,
"in the 20th year of the crime, the Supreme Court reduced the sentence to the period",
"already undergone and imposed a fine which if not paid, the original sentence was to",
be restored.74. Where the guilt of the accused under sections 406 and 120-B were,
"established beyond all reasonable doubt, the Supreme Court did not interfere with their",
"conviction. However, in view of the fact that the accused had undergone proceedings",
"for a period of two decades, their sentence was reduced to one already undergone.75.",
Where the accused was convicted for criminal conspiracy and breach of trust and,
"about 48 years had elapsed since the accused was charged for the offences, keeping in",
view his advanced age he was sentenced to imprisonment till rising of the Court with a,
"fine of Rs. 5,000.76. Where a man of 20 was convicted under section 324 and",
sentenced to undergo imprisonment for four months whereas he had already,
"undergone imprisonment of one year and two months, his sentence was reduced to",
one already undergone.77. Where the accused were convicted under section 326 for,
"causing grievous hurt to the victim, considering the lapse of about six years from the",
"incident, accused not being habitual criminals or previous convicts and there being no",
"misuse of liberty during bail, the sentence was reduced to the period already undergone",
"with a fine of Rs. 5,000 each.78. Where the accused convicted and sentenced under",
"sections 379 and 411, were found to be the sole earning member of their families and",
"they had no past criminal records, the Court directed that one year's rigorous",
imprisonment instead of two would meet the ends of justice.79. Where the accused,
seeing his wife in a compromising position with a man assaulted both of them as a,
"result of grave and sudden provocation resulting in the death of both, his conviction",
"under section 304, Part II was upheld but the sentence of five years' R.I. was reduced to",
one years' R.I. with the recommendation that the State Government might remit such a,
portion of sentence as it deemed fit and proper.80.,
[s 53.13] Offences against women.—,
"Where the accused had outraged the modesty of a woman, his conviction under",
"section 354 was upheld but considering the lapse of eight years, it was not found",
desirable to send him back to jail to be in midst of hardened criminals. He was,
sentenced to sit in the Court of Judicial Magistrate First Class for five days,
"continuously, during the entire working hours.81. Where the accused, in his late fifties,",
"betraying the confidence of the prosecutrix committed rape on her, it was held that he",
"deserved no sympathy. However, as the accused remained in jail for eight years, the",
Court took a liberal view and considering his age and helplessness sentenced him to,
the period for which he had already been in jail.82. Where the victim of rape belonged to,
a tribal (Bhilla) community and the act of the accused did not cast any serious stigma,
on the girl and she was married to a different person sometime after the incident by her,
"father, it was held that sentence much below the minimum sentence prescribed could",
be inflicted on the accused.83. Where the conviction and sentence of the accused,
husband to rigorous imprisonment for six months under section 498-A was substituted,
"with a fine of Rs. 6,000, taking into consideration the age, occupation and family",
"conditions of the husband, it was held that though the appellate Court was justified in",
"substituting the jail sentence, the Court ought not have awarded a modest fine. The fine",
"was raised to Rs. 30,000.84. Where a person was married in childhood and was",
subjected to a second marriage under the pressure exerted by his parents as well as,
"the woman who became his second wife, it was held that a lesser sentence of six",
"months instead two years' R.I. and a fine of Rs. 2,000 to the accused husband and",
"imprisonment till the rising of the Court and a fine of Rs. 1,500 to the accused parents",
and the second wife in place of the original sentence of six months' R.I. and a fine of,
"Rs. 1,000 would meet the ends of justice.85.",
[s 53.14] Conversion of death sentence into life imprisonment.—,
"Where the accused, being dissatisfied with the partition of family property, committed",
ghastly murders of four members of his family and there was no evidence that the,
crime was pre-planned and the circumstances indicated that he was under the,
influence of some kind of extreme mental or emotional disturbance which impaired his,
"capacity to appreciate criminality of his conduct, death sentence awarded to him was",
converted into imprisonment for life.86. Where three accused persons conspired to kill,
the wife and two minor children of one of the accused but one of the accused was not,
a party to actual commission of murder and the part played by the other accused was,
"not definitely proved, the sentence of death imposed on both the accused was",
"commuted to that of life imprisonment. The death sentence of the main accused, the",
"father, was not interfered with.87. Where the accused shot his two younger brothers",
"dead on a petty quarrel, as there was no pre-plan to commit murder, the death sentence",
"awarded to the accused was altered into life imprisonment with a fine of Rs. 30,000.88.",
[s 53.15] Award of compensation.—,
Power of Courts to award compensation is not ancillary to other sentences but it is in,
addition thereto. This power was intended to do something to reassure the victim that,
he or she is not forgotten in the criminal justice system. It is a measure of responding,
"appropriately to crime as well of reconciling the victim with the offender. It is, to some",
"extent, a constructive approach to crimes. It is indeed a step forward in our criminal",
justice system.89. The purpose of imposition of fine and/or grant of compensation to a,
great extent must be considered having the relevant factors therefore in mind. It may,
be compensating the person in one way or the other.90.,
"In the BMW Case, the Supreme Court directed the accused to pay an amount of Rs. 50",
lakh to the Union of India which will be utilized within for providing compensation to the,
"victims of motor accidents, where the vehicles owner, driver etc. could not be traced,",
like victims of hit and run cases.91. Where a doctor was convicted for an attempt to,
cause miscarriage and sentenced to undergo rigorous imprisonment for one year and,
"pay a fine of Rs. 5,000, the sentence of imprisonment was found to be excessive and",
"was set aside but the fine was enhanced to Rs. 15,000 out of which, if realised Rs.",
"10,000 was to be paid to the mother of the deceased for the maintenance of the",
"children of the deceased shown to be living with her.92. The accused, an agriculturist,",
assaulted his sister's husband with a knife giving a blow in his abdomen resulting in,
death. The accused was convicted and sentenced to imprisonment for life under,
"section 302. However, on overall appraisal of material on record and the accused",
"having no criminal antecedents, his conviction under section 302 was set aside and he",
was convicted under section 304 and directed to undergo 10 years' R.I. But on special,
"facts of the case an option was given to the accused to pay a fine of Rs. 40,000 in all",
"and in default to undergo R.I. for seven years and, if the fine was paid within 12 weeks,",
"jail sentence was to be reduced to three years' R.I. Out of the fine, if paid, Rs. 10,000",
"were to be given to the mother of the deceased and Rs. 30,000 utilised for the benefit",
"of the three minor children of the deceased in sum of Rs. 10,000 each.93. Where the",
accused caused a serious injury in the abdomen of a man and was convicted under,
section 307 but considering that he had a widowed mother and two children and was,
"willing to compensate the victim substantially, sentence imposed upon him was",
modified into one of fine in the way of compensation of Rs. One lakh.94. Where in a,
"case under section 304, Part II the accused remained in custody for over a year after",
"conviction by the High Court and also for sometime during investigation, the Apex",
Court reduced the sentence to the period already undergone but imposed a fine of Rs.,
"20,000 payable to the widow of the deceased as compensation.95.",
[s 53.16] Reform and rehabilitation.—,
"Where the accused caused several incised injuries to a man, he was convicted under",
section 326 but as there was no previous enmity between the accused and the injured,
"person and it was the first offence committed by him, besides 14 years had lapsed",
"since the commission of the offence, he was given an opportunity to reform and",
rehabilitate in society and his sentence was reduced to the period already,
undergone.96. Where the accused convicted under section 302 was only 15 years old at,
"the time of offence and at the time of appeal he was over 30, he could not be sent to",
approved school or jail. His conviction was upheld but the sentence was quashed.97.,
[s 53.17] Separate trial for child offender.—,
One of the members of an unlawful assembly was of 13 years at the time of the,
incident. His trial was conducted along with other members who were not children.,
This was held to be illegal. The plea of child offender was not raised before the trial,
"court or the High Court. The Supreme Court, therefore, confirmed the conviction but set",
aside the sentence imposed on him.98.,
[s 53.18] Cases of no leniency.—,
"In a multiple murder case, it was argued that the accused had donated to the social",
organisations and that he was not a hardened criminal and not a menace to the society,
and at any rate by wiping him out the crime cannot be wiped out. The Supreme Court,
"observed that the accused was involved in ""organised criminal activity"" and he had",
acquired social status through crime. The accused had no regard for the value of,
human life. It was held that there were no mitigating circumstances. The main cause of,
his conviction was illicit arrack business and brothel. The fact that for this reason he,
became the victim of police cruelty was also considered to be not a mitigating,
"circumstance.99. In a double murder case, the accused was awarded death sentence",
"but the execution was postponed. It was held that pain, agony and horror suffered by",
the prisoner after he was informed about execution was no ground for substituting,
death sentence.100. Where the accused constructed a water tank which collapsed due,
to use of low quality material resulting in the death of several persons and the accused,
"was sentenced to the maximum of two years of R.I. provided under section 304A, it",
was held that the sentence could not be reduced merely because the matter was more,
than seven years old and that it would also be a grave injustice to the victims of the,
crime.101. Where the accused formed an unlawful assembly with the common object of,
killing three members of a family and one of the accused killed all the three on the spot,
"one after the other in few minutes while others caught hold of the victims, the sentence",
of life imprisonment awarded to them under sections 302/149 was confirmed but the,
High Court observed that it was a fit case to award the maximum penalty of death,
sentence as the accused had acted like a butcher in a slaughter house.102. Where the,
accused were convicted under section 328 r/w. section 34 for robbing a simple,
"innocent lady of 50 years by administering a stupefying drug through sugarcane juice,",
the Court refused to take a lenient view and reduce the sentence.103. Where the,
"accused committed a high-handed and broad daylight robbery on a public road, the",
Court declined to take a lenient view.104. Voluntary intoxication by itself neither,
absolves the offender of the consequences of his act nor does it makes him liable for,
lesser offence.105. The mere fact that the accused inflicted a single injury resulting in,
"death is not sufficient in itself to convert the offence from one under sections 300–304,",
Part II.106. When the victim has sustained a grievous injury on a vital portion of the,
body and the injury is life-threatening imposition of sentence of six days only which,
was the period already undergone by the accused in confinement is too lenient.,
"However, as the parties have forgotten their differences and are living peacefully since",
"25 years, the Court taking into consideration the aggravating as well as mitigating",
"factors under the facts of this case, imposed a sentence of six months' R.I. and a fine",
"of Rs. 25,000/- against the accused.107.",
[s 53.19] No leniency—Offences against women.—,
Where the accused committed rape on a woman and killed her and it was found that he,
"had behaved like an animal, it was held that it was not a fit case for showing",
"leniency.108. Where in a case of bride burning, the mother-in-law of the victim was",
"sentenced to life imprisonment, the Supreme Court refused to show any leniency on",
the ground that the accused mother-in-law had remained in jail for more than a decade.,
The Court observed that it would be a travesty of justice if sympathy was shown when,
a cruel act like bride burning is committed. It is rather strange that the mother-in-law,
who herself is a woman should resort to killing another woman. Undue sympathy,
would be harmful to the cause of justice.109. Where the accused himself killed his wife,
"by burning and made his two children motherless, no lenient view could be taken on the",
ground that he had two children.110.,
[s 53.20] Enhancement of sentence.—,
"Where in a group clash due to old enmity, the accused killed ten persons of a",
community indiscriminately within a span of two hours and accused took the leading,
"part, sentence of life imprisonment imposed upon him was enhanced to death penalty",
in the facts and circumstances of the case but life imprisonment awarded to the co-,
accused under sections 302/149 was confirmed.111.,
[s 53.21] Guidelines for sentencing policy.—,
"Currently, India does not have a structured sentencing guidelines that have been issued",
"either by the legislature or the judiciary. However, the Courts have framed certain",
guidelines in the matter of imposition of sentence. The Courts will have to take into,
"account certain principles while exercising their wide discretion in sentencing, such as",
"proportionality, deterrence and rehabilitation. In a proportionality analysis, it is",
necessary to assess the seriousness of an offence in order to determine the,
commensurate punishment for the offender.112. Justice demands that Courts should,
impose punishment befitting the crime so that the Courts reflect public abhorrence of,
"the crime.113. Law regulates social interests, arbitrates conflicting claims and demand.",
"Undoubtedly, there is a cross-cultural conflict where living law must find answer to the",
new challenges and the Courts are required to mould the sentencing system to meet,
the challenges.114.,
The principle governing the imposition of punishment will depend upon the facts and,
"circumstances of each case. However, the sentence should be appropriate, adequate,",
"just, proportionate and commensurate with the nature and gravity of the crime and the",
"manner in which the crime is committed. The gravity of the crime, motive for the crime,",
nature of the crime and all other attending circumstances have to be borne in mind,
"while imposing the sentence.115. An offence, which affects the morale of the society,",
"should be severely dealt with. Socio-economic status, religion, race, caste or creed of",
"the accused and the victim although may not be wholly irrelevant, should be eschewed",
"in a case of this nature (abduction and rape of minor), particularly when Parliament",
itself has laid down minimum sentence.,
One of the principles that the judiciary had all along kept in its mind that rape being a,
"violation with violence of the private person of a woman causes mental scar, thus, not",
only a physical injury but also a deep sense of some deathless shame is also,
inflicted.116.,
"The Court cannot afford to be casual while imposing the sentence, inasmuch as both",
the crime and the criminal are equally important in the sentencing process. The Courts,
must see that the public does not lose confidence in the judicial system. Imposing,
inadequate sentences will do more harm to the justice system and may lead to a state,
where the victim loses confidence in the judicial system and resorts to private,
vengeance.117.,
6. Whipping.—This form of punishment is now abolished.,
7. Detention in reformatories.—Juvenile offenders sentenced to imprisonment may be,
"sentenced to, and detained in, a Reformatory School for a period of three–seven",
years.118.,
[s 53.22] Detention during trial.—,
Every confinement of a person and every restraint of the liberty of a free man is,
"imprisonment. Thus, ""imprisonment"" would include under trial detention. ""Under trial",
"detention of a prisoner is undoubtedly an imprisonment.""119.",
[s 53.23] Postponement of sentence.—,
Where all the members of the family of the deceased were convicted and nobody was,
"left to take care of his daughter, the Court upheld the sentence of the daughter's",
grandmother but granted her six months' time to arrange for the daughter and then to,
surrender to serve the sentence.120.,
[s 53.24] Community Service for Avoiding Jail Sentence.—,
"Convicts in various countries, now, voluntarily come forward to serve the community,",
especially in crimes relating to motor vehicles. Graver the crime greater the sentence.,
"But, serving the society actually is not a punishment in the real sense where the",
convicts pay back to the community which he owes. Conduct of the convicts will not,
"only be appreciated by the community, it will also give a lot of solace to him, especially",
"in a case where because of one's action and inaction, human lives have been lost. In",
"the facts and circumstances of the case, where six human lives were lost, Court felt to",
adopt this method would be good for the society rather than incarcerating the convict,
"further in jail. The Court ordered to do community service for two years, which will be",
arranged by the Ministry of Social Justice and Empowerment within two months. On,
"default, the convict will have to undergo simple imprisonment for two years.121.",
[s 53.25] Probation.—,
"Probation of Offenders Act, 1958 ('PO Act') is a milestone in the progress of the",
modern liberal trend of reform in the field of penology. It is the result of the recognition,
of the doctrine that the object of the criminal law is more to reform the individual,
offender than to punish him. Broadly stated that the PO Act distinguishes offenders,
"below 21 years of age and those above that age, and offenders who are not guilty of",
having committed an offence punishable with death or that imprisonment for life and,
those who are guilty of a lesser offence. While in the case of offenders who are above,
the age of 21 years absolute discretion is given to the Court to release them after,
"admonition or on probation of good conduct, subject to the conditions laid down in the",
"appropriate provisions of the PO Act. In case of offender below the age of 21 years, an",
injunction is issued to the Court not to sentence them to imprisonment unless it is,
"satisfied that, having regard to the circumstances of the case, including the nature of",
"the offence and the character of the offenders, it is not desirable to deal with them",
under sections 3 and 4 of the PO Act.122. The PO Act introduced a very basic change in,
"the criminal law of the country. At the same time, Courts were also to be careful about",
the impact on the society consequent on letting offenders on probation. Indiscriminate,
application of provisions of the PO Act to anti-social and white collar offenders may,
have an adverse effect on the security of the society. Application of the PO Act is,
specifically barred in some cases.123. Provisions of the PO Act should be applied,
"having regard to the nature of offence and age, character and antecedents of the",
offender.124.,
"1. Subs. by Act 26 of 1955, section 117 and Sch, for ""Secondly—Transportation"" (w.e.f. 1-1-",
1956).,
"2. Clause ""Thirdly"" omitted by Act 17 of 1949, section 2 (w.e.f. 6-4-1949).",
"3. Shivaji v State of Maharashtra, 1973 Cr LJ 1783 : AIR 1973 SC 2622 [LNIND 1973 SC 249] .",
"4. Inder Singh v State, AIR 1978 SC 1091 : 1978 Cr LJ 766 (SC), see also Ram Prasad, 1980 Cr LJ",
"10 : AIR 1980 SC 83 [LNIND 1979 SC 404] ; Ashok Kumar, 1980 Cr LJ 444 : AIR 1980 SC 636",
[LNIND 1980 SC 36] .,
"5. Alister Anthony Pareira v State of Maharashtra, 2012 Cr LJ 1160 : (2012) 2 SCC 648 [LNIND",
2012 SC 15] : (2012) 1 SCC (Cr) 953 : AIR 2012 SC 3802 [LNIND 2012 SC 15] .,
"6. State of Punjab v Bawa Singh, 2015 Cr LJ 1701 .",
"7. UOI v Kuldeep Singh, AIR 2004 SC 827 [LNIND 2003 SC 1056] : (2004) 2 SCC 590 [LNIND",
"2003 SC 1056] ; State of MP v Ghanshyan Singh, JT 2003 (Supp.1 ) SC 129 : 2003 (8) SCC 13",
"[LNIND 2003 SC 772] ; Jashubha Bharatsinh Gohil v State of Gujarat, JT 1994 (3) SC 250 [LNIND",
1994 SC 415] : 1994 (4) SCC 353 [LNIND 1994 SC 415] .,
"8. BG Goswami v Delhi Administration, 1974 (3) SCC 85 [LNIND 1973 SC 194] : AIR 1973 SC",
1457 [LNIND 1973 SC 194] : 1973 SCC (Cr) 796 1974 Cr LJ 243 .,
"9. TK Gopal alias Gopi v State of Karnataka, AIR 2000 SC 1669 [LNIND 2000 SC 826] : (2000) 6",
SCC 168 [LNIND 2000 SC 826] : JT 2000 (6) SC 177 [LNIND 2000 SC 826] : 2000 Cr LJ 2286 :,
"Sunil Batra (I) v Delhi Administration, AIR 1978 SC 1675 [LNIND 1978 SC 215] : (1978) 4 SCC 494",
[LNIND 1978 SC 215] : 1979 (1) SCR 392 [LNIND 1978 SC 215] : ( 1978 Cr LJ 1741 ); Sunil Batra,
"(II) v Delhi Administration, AIR 1980 SC 1579 : (1980) 3 SCC 488 [LNIND 1978 SC 215] : 1980 (2)",
"SCR 557 [LNIND 1978 SC 215] : ( 1980 Cr LJ 1099 ); Charles Sobraj v Superintendent, Central Jail,",
"Tihar, AIR 1978 SC 1514 [LNIND 1978 SC 218] : ( 1978 Cr LJ 1534 ) and Francis Coralie Mullin v",
"The Administrator, Union Territory of Delhi, (1981) 1 SCC 608 [LNIND 1981 SC 27] : AIR 1981 SC",
746 [LNIND 1981 SC 27] : 1981 (2) SCR 516 [LNIND 1981 SC 27] : ( 1981 Cr LJ 306 ) etc.,
"10. Karamjit Singh v State, AIR 2000 SC 3467 [LNIND 2000 SC 707] : (2001) 9 SCC 161 [LNIND",
2000 SC 707] .,
"11. Dhannajoy Chatterjee v State of WB, (1994) (2) SCC 220 [LNIND 1994 SC 34] : 1994 (3) RCR",
(Cr) 359 (SC).,
"12. Attorney General of India v Lachma Devi, 1986 Cr LJ 364 : AIR 1986 SC 467 .",
"13. Murray and Co v Ashok Kr Newatia, AIR 2000 SC 833 [LNIND 2000 SC 159] : (2000) 2 SCC",
367 [LNIND 2000 SC 159] .,
"14. Karamjit Singh v State, AIR 2000 SC 3467 [LNIND 2000 SC 707] : (2001) 9 SCC 161 [LNIND",
2000 SC 707] .,
"15. Mohammad Giasuddin v State of AP, (1977) 3 SCC 287 [LNIND 1977 SC 211] : AIR 1977 SC",
1926 [LNIND 1977 SC 211] .,
"16. State of Gujarat v Hon'ble High Court of Gujarat, (1998) 7 SCC 392 [LNIND 1998 SC 920] : AIR",
1998 SC 3164 [LNIND 1998 SC 920] : JT 1998 (6) SC 530 : 1998 Cr LJ 4561 .,
"17. Gurdeep Singh alias Deep v State, AIR 1999 SC 3646 [LNIND 1999 SC 837] : (2000) 1 SCC",
498 [LNIND 1999 SC 837] : JT 1999 (7) SC 191 [LNIND 1999 SC 837] : 1999 Cr LJ 4573 .,
"18. State Tr PS Lodhi Colony New Delhi v Sanjeev Nanda, (2012) 8 SCC 450 [LNIND 2012 SC 459]",
: 2012 Cr LJ 4174 : AIR 2012 SC 3104 [LNIND 2012 SC 459] .,
"19. UOI v Kuldeep Singh, AIR 2004 SC 827 [LNIND 2003 SC 1056] : (2004) 2 SCC 590 [LNIND",
2003 SC 1056] .,
"20. Sahdev v Jaibar, (2009) 11 SCC 798 [LNIND 2009 SC 476] : (2010) 1 SCC (Cr) 215.",
"21. State of Karnataka v Krishnappa, 2000 Cr LJ 1793 : AIR 2000 SC 147 .",
"22. Mahesh v State of MP, AIR 1987 SC 1346 ; State of Punjab v Rakesh Kumar, AIR 2009 SC 391",
[LNIND 2008 SC 1729] .,
"23. Gurdeep Singh alias Deep v State, AIR 1999 SC 3646 [LNIND 1999 SC 837] : (2000) 1 SCC",
498 [LNIND 1999 SC 837] : JT 1999 (7) SC 191 [LNIND 1999 SC 837] : 1999 Cr LJ 4573 .,
"24. Mohd Arif v The Registrar, Supreme Court of India, 2014 Cr LJ 4598 .",
"25. State of HP v Nirmala Devi, AIR 2017 SC 1981 [LNIND 2017 SC 189] .",
"26. State of Rajasthan v Mohan Lal, AIR 2018 SC 3564 .",
"27. Alister Anthony Pareira v State of Maharashtra, AIR 2012 SC 3802 [LNIND 2012 SC 15] :",
(2012) 2 SCC 648 [LNIND 2012 SC 15] : (2012) 1 SCC (Cr) 953 : 2012 Cr LJ 1160 .,
"28. State of HP v Nirmala Devi, AIR 2017 SC 1981 [LNIND 2017 SC 189] .",
"29. Alister Anthony Pareira v State of Maharashtra, 2012 Cr LJ 1160 : (2012) 2 SCC 648 [LNIND",
2012 SC 15] : (2012) 1 SCC (Cr) 953 : AIR 2012 SC 3802 [LNIND 2012 SC 15] .,
"30. Sahdev v Jaibar, (2009) 11 SCC 798 [LNIND 2009 SC 476] : (2010) 1 SCC (Cr) 215.",
"31. Sahdev v Jaibar, (2009) 11 SCC 798 [LNIND 2009 SC 476] : (2010) 1 SCC (Cr) 215.",
"32. Alister Anthony Pareira v State of Maharashtra, 2012 Cr LJ 1160 : (2012) 2 SCC 648 [LNIND",
2012 SC 15] : (2012) 1 SCC (Cr) 953 : AIR 2012 SC 3802 [LNIND 2012 SC 15] .,
"33. State of MP v Saleem alias Chamaru, 2005 (5) SCC 554 [LNIND 2005 SC 1070] 61.",
"34. C Muniappan v State of TN, (2010) 9 SCC 567 [LNIND 2010 SC 809] : AIR 2010 SC 3718",
[LNIND 2010 SC 809] : (2010) 10 SCR 262 [LNIND 2010 SC 809] : (2010) 3 SCC (Cr) 1402.,
"35. Dinesh v State of Rajasthan, 2006 (3) SCC 771 [LNIND 2006 SC 151] : AIR 2006 SCW 1123 :",
AIR 2006 SC 1267 [LNIND 2006 SC 151] .,
"36. Gurmukh Singh v State of Haryana, JT 2009 (11) SC 122 : 2009 (11) Scale 688 [LNIND 2009",
SC 1725] .,
"37. Jameel v State of UP, 2010 Cr LJ 2106 : (2010) 12 SCC 532 [LNIND 2009 SC 1960] : AIR",
2010 SC (Supp) 303 : (2011) 1 SCC (Cr) 582.,
"38. UOI v Kuldeep Singh, AIR 2004 SC 827 [LNIND 2003 SC 1056] : (2004) 2 SCC 590 [LNIND",
2003 SC 1056] . Meaning of Judicial discretion explained.,
"39. State of Rajasthan v Mohan Lal, AIR 2018 SC 3564 .",
"40. State of HP v Nirmala Devi, AIR 2017 SC 1981 [LNIND 2017 SC 189] .",
"41. State of Rajasthan v Mohan Lal, AIR 2018 SC 3564 .",
"42. State v Narayan Bisoi, 1975 Cr LJ 1399 (Ori).",
"43. Javed Ahmed, 1983 Cr LJ 960 : AIR 1983 SC 594 [LNIND 1983 SC 119] : (1983) 3 SCC 39",
"[LNIND 1983 SC 119] : 1983 SCC (Cr) 559; see also Henry Westmuller, 1985 Cr LJ 1079 : AIR",
"1985 SC 823 [LNIND 1985 SC 105] : (1985) 3 SCC 291 [LNIND 1985 SC 105] ; Lok Pal Singh,",
1985 Cr LJ 1134 (SC) : AIR 1985 SC 823 [LNIND 1985 SC 105] .,
"44. Munnalal, 1977 Cr LJ NOC 108 (MP).",
"45. Gauri Shanker Sharma v State of UP, AIR 1990 SC 709 [LNIND 1990 SC 8] : 1990 (2) SCC 502",
"[LNIND 1990 SC 100] , the acquittal granted by the High Court was set aside and the sentence of",
7-year RI restored.,
"46. State v Balkrishna, 1992 Cr LJ 1872 (Mad).",
"47. State of UP v MK Anthony, 1985 Cr LJ 493 : AIR 1985 SC 48 . For an account of the",
"perplexities of criminal justice, see S Venugopal Rao, Perplexities of Criminal Justice, (1985) 27",
"JILI 458. See also Pandurang Dhondu Bhuwad v State of Maharashtra, 1991 Cr LJ 3177 Bom,",
domestic servants committing day-light robberty in an apartment resulting in the death of an,
"inmate, life imprisonment, no concession for young age or poverty.",
"48. Guvala China Venkatesu v State of AP, AIR 1991 SC 1926 : 1991 Cr LJ 2326 .",
"49. Sevaka Perumal v State of TN, AIR 1991 SC 1463 [LNIND 1991 SC 269] : 1991 Cr LJ 1845 .",
"50. State of Rajasthan v Sukhpal Singh, (1983) 1 SCC 393 [LNIND 1982 SC 206] : 1983 SCC (Cr)",
"213 : AIR 1984 SC 207 [LNIND 1982 SC 206] ; Philip Bhimsen Aind v State, (1995) Cr LJ 1694",
(Bom).,
"51. Babarali Ahmedali Sayed v State of Gujarat, 1991 Cr LJ 1269 Guj.",
"52. TM Joseph v State of Kerala, AIR 1992 SC 1922 : 1992 Cr LJ 3166 . The court referred to its",
"own decision in BC Goswami v Delhi Administration, AIR 1973 SC 1457 [LNIND 1973 SC 194] :",
1974 Cr LJ 243 .,
"53. Ajit Kumar Vasantlal Zaveri v State of Gujarat, AIR 1992 SC 2064 : 1992 Cr LJ 3593 .",
"54. Gurmukh Singh v State of Haryana, 2010 Cr LJ 450 : AIR 2009 SC 2697 [LNIND 2009 SC 847]",
.,
"55. State of MP v Sheikh Shahid, AIR 2009 SC 2951 [LNIND 2009 SC 867] : (2009) 12 SCC 715",
[LNIND 2009 SC 867] : (2010) 1 SCC (Cr) 704.,
"56. UOI v Kuldeep Singh, AIR 2004 SC 827 [LNIND 2003 SC 1056] : (2004) 2 SCC 590 [LNIND",
2003 SC 1056] .,
"57. Jitendra v State of Govt of NCT of Delhi, AIR 2018 SC 5253 [LNIND 2018 SC 537] .",
"58. Bachan Singh v State of Punjab, 1980 Cr LJ 636 : AIR 1980 SC 898 [LNIND 1980 SC 260] .",
"The minimum sentence awardable under section 302 being life imprisonment, it has been held",
"that the sentence cannot be reduced. Dori v State of UP, 1991 Cr LJ 3139 (All); Dadasaheb Misal",
"v State of Maharashtra, 1987 Cr LJ 1512 (Bom). See Triveniben v State of Gujarat, 1990 Cr LJ 273",
"(Guj); Sham Sunder v Puran, (1990) 4 SCC 731 [LNIND 1990 SC 994] : 1991 SCC (Cr) 38 : 1990 Cr",
"LJ 2600 ; Kannan v State of TN, 1989 Cr LJ 825 : AIR 1989 SC 396 [LNIND 1982 SC 73] : 1989",
Supp (1) SCC 81 .,
"59. Laxman Naskar v State of WB, 2000 Cr LJ 4017 : AIR 2000 SC 2762 [LNIND 2000 SC 1180] .",
"60. State of Gujarat v Hon'ble High Court of Gujarat, 1998 Cr LJ 4561 : AIR 1998 SC 3164 [LNIND",
1998 SC 920] .,
"61. For an example of early release see Iqbal Singh v State of Punjab, 1990 Cr LJ 1460 .",
62. Act No. 13 of 2013 w.e.f 2 April 2013.,
"63. Mohd Arif v The Registrar, Supreme Court of India, 2014 Cr LJ 4598 : (2014) 9 SCC 737",
[LNIND 2014 SC 769] .,
"64. R S Joshi v Ajit Mills, AIR 1977 SC 2279 [LNIND 1977 SC 260] : 1977 SCC (Tax) 536 : (1978)",
1 SCJ 239 .,
"65. State of Maharashtra v Chandra Prakash Keshavdeo, 1991 Cr LJ 3187 (Bom).",
"66. Kapoor Lal v State of UP, 1991 Cr LJ 2159 (All).",
"67. Rajbir v State of Haryana, 1985 Cr LJ 1495 : 1985 Guj LH 117 : AIR 1985 SC 1278 . Referred",
"to in Dhansukh Chhotalal Joshi v State of Gujarat, 1990 Cr LJ 2333 to reduce the sentence of a",
19 year- old boy convicted under section 304-II to that already undergone who was a member of,
a party which caused death without any intention to do so.,
"68. State of Gujarat v Hon'ble High Court of Gujarat, (1998) 7 SCC 392 [LNIND 1998 SC 920] : AIR",
1998 SC 3164 [LNIND 1998 SC 920] See the box.,
"69. Phool Kumari v Office of the Superintendent Central Jail, Tihar New Delhi, (2012) 8 SCC 183",
[LNINDORD 2012 SC 410] : 2012 Cr LJ 4261 : AIR 2012 SC 3198 [LNINDORD 2012 SC 410] .,
"70. Constitution Bench in GV Godse v State, AIR 1961 SC 600 [LNIND 1961 SC 11] and Naib",
"Singh v State of Punjab, AIR 1983 SC 855 [LNIND 1983 SC 116] .",
"71. State of Gujarat v Hon'ble High Court of Gujarat, (1998) 7 SCC 392 [LNIND 1998 SC 920] : AIR",
1998 SC 3164 [LNIND 1998 SC 920] : JT 1998 (6) SC 530 : 1998 Cr LJ 4561 .,
"72. Bhuvan Mohan Patnaik v State of AP, (1975) 3 SCC 185 [LNIND 1974 SC 269] : AIR 1974 SC",
2092 [LNIND 1974 SC 269] .,
"73. State of Maharashtra v Jethmat Himatmal Jain, 1994 Cr LJ 2613 (Bom).",
"74. Chanda Lal v State of Rajasthan, AIR 1992 SC 597 : 1992 Cr LJ 523 .",
"75. Ramanlal Baldevdas Shah v State of Gujarat, 1992 Cr LJ 3164 : AIR 1992 SC 1916 . See also",
"State of Karnataka v Bhojappa Hanamanthappa, 1994 Cr LJ 1543 .",
"76. Sushil Kumar Sanghi v State, 1995 Cr LJ 3457 (Del).",
"77. Babloo v State of MP, 1995 Cr LJ 3534 (MP). Jaya Mala v Home Secy, Govt of J&K, AIR 1982",
SC 1297 [LNIND 1982 SC 109] : 1982 Cr LR (SC) 441 relied upon.,
"78. Pratapsingh Rathod v State of Maharashtra, 1996 Cr LJ 790 (Bom). Incident of causing stab",
"wound taking place 24 years back and the injury being of simple nature, the sentence was",
"reduced into one already undergone, Pritam Singh v State, 1996 Cr LJ 7 (Del).",
"79. Rasananda Bindhani v State of Orissa, 1992 Cr LJ 121 (Ori).",
"80. BY Deshmukh v State of Maharashtra, 1996 Cr LJ 1108 (Bom), relying on in Re Vadivel",
"Padayachi, 1972 Cr LJ 1641 (Mad).",
"81. Panchu Parida v State of Orissa, 1993 Cr LJ 953 (Ori). The court referred to Ippili Trinadha",
"Rao v State of AP, 1984 Cr LJ 1254 .",
"82. State of Orissa v Gangadhar Behuria, 1992 Cr LJ 3814 (Ori).",
"83. Dayaram v State of MP, 1992 Cr LJ 3154 (MP).",
"84. Madhuri Mukund Chitnis v Mukund Martand Chitnis, 1992 Cr LJ 111 (Bom).",
"85. Kashiram v Sonvati, 1992 Cr LJ 760 (MP).",
"86. MS Sheshappa v State of Karnataka, 1994 Cr LJ 3372 (Kant).",
"87. SC Bahri v State of Bihar, AIR 1994 SC 2020 : 1994 Cr LJ 3271 .",
"88. State v Banwari Lal, 1996 Cr LJ 1078 (Raj).",
"89. Manish Jalan v State of Karnataka, JT 2008 (7) SC 643 [LNIND 2008 SC 1396] .",
"90. Dilip S Dahanukar v Kotak Mahindra Co Ltd, ((2007) 6 SCC 528 [LNIND 2007 SC 451] 65) See",
"also Alister Anthony Pareira v State of Maharashtra, 2012 Cr LJ 1160 : (2012) 2 SCC 648 [LNIND",
2012 SC 15] : (2012) 1 SCC (Cr) 953 : AIR 2012 SC 3802 [LNIND 2012 SC 15] .,
"91. State Tr PS Lodhi Colony New Delhi v Sanjeev Nanda, (2012) 8 SCC 450 [LNIND 2012 SC 459]",
: 2012 Cr LJ 4174 : AIR 2012 SC 3104 [LNIND 2012 SC 459] .,
"92. Akhil Kumar v State of MP, 1992 Cr LJ 2029 (MP).",
"93. Madhukar Chandar v State of Maharashtra, 1993 Cr LJ 3281 (Bom).",
"94. Joshi v State of Kerala, 1996 Cr LJ 143 (Ker).",
"95. Sarup Singh v State of Haryana, AIR 1995 SC 2452 : 1995 Cr LJ 4168 .",
"96. Raja Ram v State of Rajasthan, 1993 Cr LJ 1016 (Raj).",
"97. Lal Diwan v State of UP, 1995 Cr LJ 3899 (All).",
"98. Umesh Singh v State of Bihar, AIR 2000 SC 2111 [LNIND 2000 SC 871] : 2000 Cr LJ 6167 .",
"99. Shankar v State of TN, (1994) 4 SCC 478 [LNIND 1994 SC 377] : 1994 Cr LJ 3071 .",
"100. Sharomani Akali Dal (Mann) v State of JK, 1993 Cr LJ 927 (J&K).",
"101. Bhimabhai Kalabhai v State of Gujarat, 1992 Cr LJ 2585 (Guj).",
"102. Arjunan v State, 1993 Cr LJ 3113 (Mad).",
"103. Madhukar Damu Patil v State of Maharashtra, 1996 Cr LJ 1062 (Bom).",
"104. Jaivir Singh v State of UP, 1996 Cr LJ 1494 (All).",
"105. Dedekula Khabala Saheb v State of AP, 1996 Cr LJ 2196 (AP).",
"106. Gochipathula Samudralu v State of AP, 1992 Cr LJ 2488 (AP).",
"107. State of Rajasthan v Mohan Lal, AIR 2018 SC 3564 .",
"108. Jagat Bahadur v State of HP, 1994 Cr LJ 3396 (HP).",
"109. Paniben v State of Gujarat, AIR 1992 SC 1817 [LNIND 1992 SC 248] : 1992 Cr LJ 2919 .",
"110. Venkappa K Chowdari v State of Karnataka, 1996 Cr LJ 15 (Kant).",
"111. Jodha Khoda Rabari v State of Gujarat, 1992 Cr LJ 3298 (Guj).",
"112. State of Rajasthan v Mohan Lal, AIR 2018 SC 3564 .",
"113. Jameel v State of UP, 2010 Cr LJ 2106 : (2010) 12 SCC 532 [LNIND 2009 SC 1960] : AIR",
2010 SC (Supp) 303 : (2011) 1 SCC (Cr) 582.,
"114. UOI v Kuldeep Singh, AIR 2004 SC 827 [LNIND 2003 SC 1056] : (2004) 2 SCC 590 [LNIND",
2003 SC 1056] .,
"115. State of Rajasthan v Mohan Lal, AIR 2018 SC 3564 .",
"116. State of MP v Babu Natt, (2009) 2 SCC 272 [LNIND 2008 SC 2471] : (2009) 1 SCC (Cr) 713 :",
AIR 2009 SC 1810 [LNIND 2008 SC 2471] : (2009) 1 Ker LJ 686 : 2009 Cr LJ 1722 .,
"117. State of Rajasthan v Mohan Lal, AIR 2018 SC 3564 .",
"118. Act VIII of 1897, section 8. Where the accused was a child of 14 at the time of the incident",
"and, therefore, the benefit of being sent to an approved school under the U.P. Children Act (1 of",
1952) would have been available to him but he became a man of 28 by the time of the final,
"judgment, and, therefore, not fit for the school, his conviction was sustained and the sentence",
"reduced to already undergone. Pachrangi v State of UP, 1991 Cr LJ 3232 (All), relying on Bhoop",
"Ram v State of UP, 1989 All Cr R 276 : 1990 Cr LJ 2671 : AIR 1990 SC 1329 [LNIND 1990 SC 277]",
.,
"119. Prahlad G Gajbhiye v State of Maharashtra, (1994) 2 Cr LJ 2555 at p 2561 (Bom).",
"120. Harkori v State of Rajasthan, 1998 Cr LJ 814 : AIR 1998 SC 2821 [LNIND 1997 SC 1368] .",
"121. State Tr PS Lodhi Colony New Delhi v Sanjeev Nanda, (2012) 8 SCC 450 [LNIND 2012 SC",
459] : 2012 Cr LJ 4174 : AIR 2012 SC 3104 .,
"122. Rattan Lal v State of Punjab, AIR 1965 SC 444 [LNIND 1964 SC 135] : 1964 (7) SCR 676",
"[LNIND 1964 SC 135] : 1965 (1) Cr LJ 360 ; DalbirSingh v State of Haryana, AIR 2000 SC 1677",
[LNIND 2000 SC 810] : 2000 (5) SCC 82 [LNIND 2000 SC 810] : 2000 Cr LJ 2283 .,
"123. Nalinakshan v Rameshan, 2009 Cr LJ 1703 (Ker).",
"124. MCD v State of Delhi, 2005 (4) SCC 605 [LNIND 2005 SC 445] : AIR 2005 SC 2658 [LNIND",
"2005 SC 445] : 2005 SCC (Cr) 1322 : 2005 Cr LJ3077; Sitaram Paswan v State of Bihar, 2005 (13)",
SCC 110 [LNIND 2005 SC 703] : AIR 2005 SC 3534 [LNIND 2005 SC 703] : 2005 Cr LJ 4135 .,
THE INDIAN PENAL CODE,
CHAPTER III OF PUNISHMENTS,
125.[[s 53A] Construction of reference to transportation.,
"(1) Subject to the provisions of sub-section (2) and sub-section (3), any reference",
"to ""transportation for life"" in any other law for the time being in force or in any",
instrument or order having effect by virtue of any such law or of any enactment,
"repealed shall be construed as a reference to ""imprisonment for life"".",
(2) In every case in which a sentence of transportation for a term has been passed,
before the commencement of the Code of Criminal Procedure (Amendment),
"Act, 126.[1955] (26 of 1955), the offender shall be dealt with in the same",
manner as if sentenced to rigorous imprisonment for the same term.,
(3) Any reference to transportation for a term or to transportation for any shorter,
term (by whatever name called) in any other law for the time being in force,
shall be deemed to have been omitted.,
"(4) Any reference to ""transportation"" in any other law for the time being in force",
"shall,—",
"(a) if the expression means transportation for life, be construed as a",
reference to imprisonment for life;,
"(a) if the expression means transportation for any shorter term, be deemed",
to have been omitted.],
COMMENT—,
This section has been inserted by Act XXVI of 1955. It deals with a sentence of,
transportation wherever it occurs in a statute. After this amendment of the Code,
'transportation' as a sentence has been done away with as a punishment.,
"125. Ins. by Act 26 of 1955, section 117 and Sch. (w.e.f. 1-1-1956).",
"126. Subs. by Act 36 of 1957, section 3 and Sch. II, for ""1954"" (w.e.f. 17-9-1957).",
THE INDIAN PENAL CODE,
CHAPTER III OF PUNISHMENTS,
125.[[s 53A] Construction of reference to transportation.,
"(1) Subject to the provisions of sub-section (2) and sub-section (3), any reference",
"to ""transportation for life"" in any other law for the time being in force or in any",
instrument or order having effect by virtue of any such law or of any enactment,
"repealed shall be construed as a reference to ""imprisonment for life"".",
(2) In every case in which a sentence of transportation for a term has been passed,
before the commencement of the Code of Criminal Procedure (Amendment),
"Act, 126.[1955] (26 of 1955), the offender shall be dealt with in the same",
manner as if sentenced to rigorous imprisonment for the same term.,
(3) Any reference to transportation for a term or to transportation for any shorter,
term (by whatever name called) in any other law for the time being in force,
shall be deemed to have been omitted.,
"(4) Any reference to ""transportation"" in any other law for the time being in force",
"shall,—",
"(a) if the expression means transportation for life, be construed as a",
reference to imprisonment for life;,
"(a) if the expression means transportation for any shorter term, be deemed",
to have been omitted.],
COMMENT—,
This section has been inserted by Act XXVI of 1955. It deals with a sentence of,
transportation wherever it occurs in a statute. After this amendment of the Code,
'transportation' as a sentence has been done away with as a punishment.,
"125. Ins. by Act 26 of 1955, section 117 and Sch. (w.e.f. 1-1-1956).",
"126. Subs. by Act 36 of 1957, section 3 and Sch. II, for ""1954"" (w.e.f. 17-9-1957).",
THE INDIAN PENAL CODE,
CHAPTER III OF PUNISHMENTS,
[s 54] Commutation of sentence of death.,
"In every case in which sentence of death shall have been passed, 127.[the appropriate",
"Government] may, without the consent of the offender, commute the punishment for",
any other punishment provided by this Code.,
COMMENT—,
"The law governing suspension, remission and commutation of sentence is both",
statutory and constitutional.128. The stage for the exercise of this power generally,
"speaking is post-judicial, i.e., after the judicial process has come to an end. After the",
"judicial function ends, the executive function of giving effect to the judicial verdict",
commences. Constitutional power under Article 72/161 would override the statutory,
power contained in sections 432 and 433 and the limitation of section 433A of the,
"Code as well as the power conferred by sections 54 and 55, IPC, 1860.129. No convict",
has a fundamental right of remission or shortening of sentence. The State in exercise,
of its executive power of remission must consider each individual case keeping in view,
"the relevant factors. The power of the State to issue general instructions, so that no",
"discrimination is made, is also permissible in law.130. Exercise of executive clemency is",
a matter of discretion and yet subject to certain standards. It is not a matter of,
"privilege.131. A right to be considered for remission, keeping in view the constitutional",
"safeguards of a convict under Articles 20 and 21 of the Constitution of India, must be",
held to be a legal one. Such a legal right emanates from not only the Prisons Act but,
also from the Rules framed thereunder.132. The power of remission vested in the,
"Government under section 433A Code of Criminal Procedure, 1973 (Cr PC, 1973) is not",
in conflict with Articles 72 and 162 of the Constitution.133. Granting of pardon is in no,
"sense an overturning of a judgment of conviction, but rather it is an executive action",
that mitigates or sets aside the punishment for a crime. It eliminates the effect of,
conviction without addressing the defendant's guilt or innocence.134. It is open to the,
President in the exercise of the power vested in him by Article 72 of the Constitution to,
scrutinize the evidence on the record of the criminal case and come to a different,
"conclusion from that recorded by the Court in regard to the guilt of, and sentence",
"imposed on, the accused.135.",
[s 54.1] Delay in Execution whether entitle commutation of Death sentence to,
Life Imprisonment.—,
"In TV Vatheeswaran's case, AIR 1983 SC 361 [LNIND 1983 SC 43] : 1983 SCR (2) 348136.",
"a two-Judge Bench of SC considered whether the accused, who was convicted for an",
"offence of murder and sentenced to death, kept in solitary confinement for about eight",
years was entitled to commutation of death sentence. It was held that delay exceeding,
two years in the execution of a sentence of death should be considered sufficient to,
entitle the person under sentence of death to invoke Article 21 and demand the,
quashing of the sentence of death.137. But a three-Judge in Sher Singh v State of,
"Punjab,138. held that though prolonged delay in the execution of a death sentence is",
unquestionably an important consideration for determining whether the sentence,
"should be allowed to be commuted, no hard and fast rule that ""delay exceeding two",
years in the execution of a sentence of death should be considered sufficient to entitle,
the person under sentence of death to invoke Article 21 and demand the quashing of,
"the sentence of death"" can be laid down as has been done in Vatheeswaran Javed",
"Ahmed v State of Maharashtra,139. re-iterated the proposition laid down in Vatheeswaran",
(supra) case and doubted the competence of the three-Judge Bench to overrule the,
Vatheeswaran Case. The conflicting views are finally settled by the Constitution Bench,
in Triveni Ben v State of Gujarat.140. It overruled Vatheeswaran (supra) holding that,
undue long delay in execution of the sentence of death will entitle the condemned,
person to approach this Court under Article 32 but the Court will only examine the,
nature of delay caused and circumstances that ensued after sentence was finally,
confirmed by the judicial process and will have no jurisdiction to reopen the,
conclusions reached by the Court while finally maintaining the sentence of death.,
"Court, however, may consider the question of inordinate delay in the light of all",
circumstances of the case to decide whether the execution of sentence should be,
carried out or should be altered into imprisonment for life. No fixed period of delay,
could be held to make the sentence of death inexecutable and to this extent the,
decision in Vatheeswaran case cannot be said to lay down the correct law. In Madhu,
"Mehta v UOI,141.,142. Supreme Court commuted the death sentence on the ground that",
the mercy petition was pending for eight years after disposal of the criminal appeal by,
Supreme Court.,
[s 54.1.1] Devender Singh Bhullar and Mahendra Das.—,
"In Devender Pal Singh Bhullar v State of NCT of Delhi,143. the convict appealed to the",
"President for clemency in 2003. The President, after a lapse of over eight years,",
dismissed his mercy plea in 2011. Bhullar had sought commutation of his death,
penalty to life sentence by the Supreme Court on the ground that there was inordinate,
delay by the President over his plea for clemency. A two-Judge Bench144. by order,
"dated 12 April 2013 dismissed his plea, by holding that the rule enunciated in Sher",
"Singh's case (supra), Triveniben's case (supra) and some other judgments that long",
delay may be one of the grounds for commutation of the sentence of death into life,
imprisonment cannot be invoked in cases where a person is convicted for offence,
"under TADA or similar statutes. Two weeks later in Mahendra Nath Das v UOI,145. the",
same Bench held that the convict's death sentence could be commuted to life,
imprisonment because much of the inordinate delay of 12 years in the rejection of his,
"mercy petition by the President was unexplained, and therefore, inexcusable.",
[s 54.2] Modification of death sentence to a particular period with the further,
direction that the convict must not be released from prison for the rest of his,
life or before actually serving out the term.—,
"It was in Swamy Shraddananda (2) v State of Karnataka,146. the three-Judge Bench held",
that there is a good and strong basis for the Court to substitute a death sentence by life,
imprisonment or by a term in excess of 14 years and further to direct that the convict,
must not be released from the prison for the rest of his life or for the actual term as,
"specified in the order, as the case may be. But a two-Judge Bench in Sangeet v State of",
Haryana147. in which it was held that:,
a reading of some recent decisions delivered by this Court seems to suggest that the,
remission power of the appropriate Government has effectively been nullified by awarding,
"sentences of 20 years, 25 years and in some cases without any remission. Is this",
permissible? Can this Court (or any Court for that matter) restrain the appropriate,
Government from granting remission of a sentence to a convict? What this Court has done,
"in Swamy Shraddananda and several other cases, by giving a sentence in a capital offence",
"of 20 years or 30 years imprisonment without remission, is to effectively injunct the",
appropriate Government from exercising its power of remission for the specified period. In,
"our opinion, this issue needs further and greater discussion, but as at present advised, we",
are of the opinion that this is not permissible. The appropriate Government cannot be told,
"that it is prohibited from granting remission of a sentence. Similarly, a convict cannot be",
"told that he cannot apply for a remission in his sentence, whatever the reason. In this case,",
though the Division Bench raised a doubt about the decision of a three-Judge Bench in,
"Swamy Shraddananda (supra), yet the same has not been referred to a larger Bench.",
"In Sahib Hussain @ Sahib Jan v State of Rajasthan,148. another two-Judge Bench re-",
iterated the position held in Swamy Shraddananda (supra) by holding that the,
observations in Sangeet (supra) are not warranted. In Gurvail Singh @ Gala v State of,
"Punjab,149. another two Judge also termed the remarks in Sangeet (supra) were",
'unwarranted' and opined that if the two-Judge Bench was of the opinion that earlier,
"judgments, even of a larger Bench were not justified, the Bench ought to have referred",
the matter to the larger Bench.,
[s 54.3] Cases where the death sentence was modified to a particular period,
(or life) with further direction to avoid premature release,
1. Subhash Chander v Krishan Lal 150.,
2. Shri Bhagwan v State of Rajasthan 151.,
3. Ram Anup Singh v State of Bihar 152.,
4. Mohd. Munna v UOI 153.,
5. Jayawant Dattatraya Suryarao v State of Maharashtra 154.,
6. Nazir Khan v State of Delhi 155.,
7. Swamy Shraddananda (2) v State of Karnataka 156.,
8. Haru Ghosh v State of WB 157.,
9. Ramraj v State of Chattisgarh 158.,
10. Neel Kumar @ Anil Kumar v The State of Haryana 159.,
11. Sandeep v State of UP 160.,
12. Gurvail Singh @ Gala v State of Punjab 161.,
13. Brajendra Singh v State of MP 162.,
14. State of UP v Sanjay Kumar 163.,
"127. Subs. by the A.O. 1950, for ""the Central Government or the Provincial Government of the",
"Provincewithin which the offender shall have been sentenced"". The words in italics were",
"substituted by theA.O. 1937, for ""the Government of India or the Government of the place"".",
"128. The Law Commission of India in its 41st report proposed that sections 54, 55 and 55A",
may be omittedfrom the IPC and their substance incorporated in Section 402 Criminal,
"Procedure Code- See State(Govt of NCT of Delhi) v Prem Raj, (2003) 7 SCC 121 [LNIND 2003 SC",
632] : JT 2003 (8) SC 17 [LNIND 2003 SC 632] .,
"129. Ashok Kumar v UOI, AIR 1991 SC 1792 [LNIND 1990 SC 319] : (1991) 3 SCC 498 [LNIND",
1991 SC 288] .,
"130. State of Haryana v Mahender Singh, (2007) 13 SCC 606 [LNIND 2007 SC 1295] : 2008 Cr LJ",
444 : (2009) 1 SCC (Cr) 221.,
"131. Epuru Sudhakar v Govt of AP, (2006) 8 SCC 161 [LNIND 2006 SC 807] : AIR 2006 SC 3385",
[LNIND 2006 SC 807] .,
"132. State of Mysore v H Srinivasmurthy, (1976) 1 SCC 817 [LNIND 1976 SC 29] : AIR 1976 SC",
1104 [LNIND 1976 SC 29] .,
"133. Maru Ram v UOI, AIR 1980 SC 2147 [LNIND 1980 SC 446] : 1981 SCR (1)1196.",
"134. Devender Pal Singh Bhullar v State of NCT of Delhi, AIR 2013 SC 1975 [LNIND 2013 SC",
1281] : (2013) 6 SCC 195 [LNIND 2008 SC 2975] .,
"135. Kehar Singh v UOI, AIR 1989 SC 653 [LNIND 1988 SC 586] : (1989) 1 SCC 204 [LNIND 1988",
SC 586] .,
"136. Overruled in Triveni Ben v State of Gujarat, AIR 1989 SC 1335 [LNIND 1989 SC 885] : (1989)",
1 SCC 678 [LNIND 1989 SC 885] .,
"137. In Ediga Annamma's case, (1974 (3) SCR 329), two years was considered sufficient to",
"justifyinterference with the sentence of death. In Bhagwan Baux's case ( AIR 1978 SC 34 ), two",
"and a halfyears and in Sadhu Singh's case ( AIR 1978 SC 1506 ), three and a half years were",
"taken as sufficientto justify altering the sentence of death into one of imprisonment for life, See",
"also KP Mohammed vState of Kerala, (1985) 1 SCC (Cr) 142 : 1984 Supp SCC 684.",
"138. Sher Singh v State of Punjab, AIR 1983 SC 465 [LNIND 1983 SC 89] : (1983) 2 SCC 344",
[LNIND 1983 SC 89] .,
"139. Javed Ahmed v State of Maharashtra, AIR 1985 SC 231 [LNIND 1984 SC 310] : (1985) 1 SCC",
275 [LNIND 1984 SC 310] .,
"140. Triveni Ben v State of Gujarat, AIR 1989 SC 1335 [LNIND 1989 SC 885] : (1989) 1 SCC 678",
[LNIND 1989 SC 885] : JT 1989 (1) SC 314 [LNIND 1989 SC 885] : 1990Cr LJ 1810 : (1989) 1,
SCC (Cr) 248.,
"141. Madhu Mehta v UOI, (1989) 3 SCR 775 [LNIND 1989 SC 390] .",
"142. See also Daya Singh v UOI, (1991) 3 SCC 61 [LNIND 1991 SC 231] .",
"143. Devender Pal Singh Bhullar v State of NCT of Delhi, AIR 2013 SC 1975 [LNIND 2013 SC",
1281] : (2013) 6 SCC 195 [LNIND 2008 SC 2975] .,
"144. GS Singhvi and S J Mukhopadhaya, JJ.",
"145. Mahendra Nath Das v UOI, (2013) 6 SCC 253 [LNIND 2013 SC 522] : 2013 (6) Scale 591",
[LNIND 2013 SC 522] .,
"146. Swamy Shraddananda (2) v State of Karnataka, 2008 (13) SCC 767 [LNIND 2008 SC 1488] :",
"AIR 2008 SC 3040 [LNIND 2008 SC 1488] : 2008Cr LJ 3911; Also see State of UP v Sanjay Kumar,",
(2012) 8 SCC 537 [LNINDORD 2012 SC 416] .,
"147. Sangeet v State of Haryana, AIR 2013 SC 447 [LNIND 2012 SC 719] : (2013) 2 SCC 452",
[LNIND 2012 SC 719] : 2013 Cr LJ 425 .,
"148. Sahib Hussain @ Sahib Jan v State of Rajasthan, 2013 Cr LJ 2359 : 2013 (6) Scale 219",
[LNIND 2013 SC 474] .,
"149. Gurvail Singh @ Gala v State of Punjab, 2013 (10) Scale 671 [LNINDORD 2013 SC 1147] .",
"150. Subhash Chander v Krishan Lal, (2001) 4 SCC 458 [LNIND 2001 SC 853] .",
"151. Shri Bhagwan v State of Rajasthan, (2001) 6 SCC 296 [LNIND 2001 SC 1234] .",
"152. Ram Anup Singh v State of Bihar, (2002) 6 SCC 686 [LNIND 2002 SC 482] .",
"153. Mohd Munna v UOI, (2005) 7 SCC 417 [LNIND 2005 SC 701] .",
"154. Jayawant Dattatraya Suryarao v State of Maharashtra, (2001) 10 SCC 109 [LNIND 2001 SC",
2510] .,
"155. Nazir Khan v State of Delhi, (2003) 8 SCC 461 [LNIND 2003 SC 696] .",
"156. Swamy Shraddananda (2) v State of Karnataka, AIR 2008 SC 3040 [LNIND 2008 SC 1488] :",
2008 (13) SCC 767 [LNIND 2008 SC 1488] : 2008 Cr LJ 3911 .,
"157. Haru Ghosh v State of WB, (2009) 15 SCC 551 [LNIND 2009 SC 1734] .",
"158. Ramraj v State of Chattisgarh, (2010) 1 SCC 573 [LNIND 2009 SC 2093] .",
"159. Neel Kumar @ Anil Kumar v The State of Haryana, (2012) 5 SCC 766 [LNIND 2012 SC 298] .",
"160. Sandeep v State of UP, (2012) 6 SCC 107 [LNIND 2012 SC 306] .",
"161. Gurvail Singh @ Gala v State of Punjab, (2013) 2 SCC 713 [LNIND 2013 SC 94] .",
"162. Brajendra Singh v State of MP, (2012) 4 SCC 289 [LNIND 2012 SC 159] .",
"163. State of UP v Sanjay Kumar, (2013)8 SCC 537 .",
THE INDIAN PENAL CODE,
CHAPTER III OF PUNISHMENTS,
[s 55] Commutation of sentence of imprisonment for life.,
"In every case in which sentence of 164.[imprisonment] for life shall have been passed,",
"165.[the appropriate Government] may, without the consent of the offender, commute",
the punishment for imprisonment of either description for a term not exceeding,
fourteen years.,
COMMENT—,
"In the absence of an order under section 55 IPC, 1860 or section 433(b) Cr PC, 1973 a",
"life convict cannot be released even after expiry of 14 years, for a sentence of life",
imprisonment means rigorous imprisonment for the rest of convict's life.166. It is now,
conclusively settled by a catena of decisions that the punishment of imprisonment for,
life handed down by the Court means a sentence of imprisonment for the convict for,
"the rest of his life.167. However, Supreme Court has been, for quite some time,",
"conscious of the liberal approach and sometimes discriminatory too, taken by the",
"States in exercise of their power under sections 432 and 433 of Cr PC, 1973 in",
"remitting or commuting sentences. In Jagmohan Singh v State of UP,168. Court had",
expressed concern about such approach made by the States in remitting life sentences,
that led to the amendment in Cr PC introducing section 433A by Act 45 of 1978. Under,
"section 433A of Cr PC, 1973 a sentence of imprisonment for life is imposed for an",
offence for which death is one of the punishments or where a death sentence is,
"commuted to life under section 433, he shall not be released unless he has served 14",
years of imprisonment.,
It appears that the provision has been generally understood to mean that life sentence,
"would only be 14 years of incarceration. Taking judicial notice of such a trend, the",
"Supreme Court has, in cases where imposition of death sentence would be too harsh",
"and imprisonment for life (the way it is understood as above) too inadequate, in several",
"cases, has adopted different methods to ensure that the minimum term of life",
"imprisonment ranges from at least 20 years to the end of natural life. However, in some",
"cases, the Court had also been voicing concern about the statutory basis of such",
"orders.169. In the case of State of Rajasthan v Jamil Khan,170. the Supreme Court opined",
that:,
We are of the view that it will do well in case a proper amendment under section 53 of IPC is,
"provided, introducing one more category of punishment - life imprisonment without",
"commutation or remission. Dr. VS Malimath, J, in the Report on 'Committee of Reforms of",
"Criminal Justice System', submitted in 2003, had made such a suggestion but so far no",
serious steps have been taken in that regard. There could be a provision for imprisonment,
till death without remission or commutation.,
[s 55.1] The power of High Court to commute.—,
Exercise of power under section 433 is an executive discretion. The High Court in,
exercise of its revisional jurisdiction had no power conferred on it to commute the,
sentence imposed where a minimum sentence was provided for offence. The mandate,
"of section 433 Cr PC, 1973 enables the Government in an appropriate case to commute",
the sentence of a convict and to prematurely order his release before expiry of the,
"sentence as imposed by the Courts.171. In State (Govt. of NCT of Delhi) v Prem Raj,172.",
Supreme Court was called upon to consider whether in a case involving conviction,
"under section 7 read with section 13(1)(d) of the Prevention of Corruption Act 1988, the",
High Court could commute the sentence of imprisonment on deposit of a specified,
amount by the convict and direct the State Government to pass appropriate order under,
"section 433(c) Cr PC, 1973. It was held that the question of remission lay within the",
domain of the appropriate government and it was not open to the High Court to give a,
"direction of that kind even if the High Court could give such a direction, it could only",
direct consideration of the case of premature release by the Government and could not,
have ordered the premature release of the respondent itself. The right to exercise the,
"power under section 433 Cr PC, 1973 vests in the Government and has to be exercised",
by the Government in accordance with the rules and established principles. The,
"impugned order of the High Court cannot, therefore, be sustained and is hereby set",
aside.173.,
"[s 55.2] Power to commute, when minimum sentence is provided in the",
Statute.—,
"Punishment has a penological purpose. Reformation, retribution, prevention, and",
deterrence are some of the major factors in that regard. Parliament is the collective,
"conscience of the people. If it has mandated a minimum sentence for certain offences,",
"the Government being its delegate, cannot interfere with the same in exercise of their",
"power for remission or commutation. Neither section 432 nor section 433 of Cr PC,",
"1973 hence contains a non-obstante provision. Therefore, the minimum sentence",
provided for any offence cannot be and shall not be remitted or commuted by the,
"Government in exercise of their power under sections 432 or 433 of the Cr PC, 1973.",
Wherever the Indian Penal Code or such penal statutes have provided for a minimum,
"sentence for any offence, to that extent, the power of remission or commutation has to",
be read as restricted; otherwise the whole purpose of punishment will be defeated and,
it will be a mockery on sentencing.174.,
"164. Subs. by Act 26 of 1955, section 117 and Sch, for transportation (w.e.f. 1-1-1956).",
"165. Subs. by the A.O. 1950, for ""the Provincial Government of the Province within which the",
"offender shall have been sentenced"". The words in italics were substituted by the A.O. 1937, for",
the Government of India or the Government of the place.,
"166. Naib Singh v State of Punjab, 1983 Cr LJ 1345 : AIR 1983 SC 855 [LNIND 1983 SC 116] :",
1983 Cr LR (SC) 348 : (1983) 2 SCC 454 [LNIND 1983 SC 116] : 1983 SCC (Cr) 536. The,
provisions of these sections are subject to the overriding power conferred by Articles 72 and,
"161 of the Constitution of India. Ashok Kumar v UOI, AIR 1991 SC 1792 [LNIND 1990 SC 319] :",
"1991 Cr LJ 2483 , where the court also emphasised that imprisonment for life means",
"imprisonment for the full span of life. Affirming, Gopal Vinayak Godse v State of Maharashtra,",
AIR 1961 SC 600 [LNIND 1961 SC 11] : (1961) 3 SCR 440 [LNIND 1961 SC 11] : (1961) 1 Cr LJ,
736 . In the absence of an order the section is not applicable because there can be no order by,
"inference or implication, Sat Pal v State of Haryana, AIR 1993 SC 1218 [LNIND 1992 SC 526] :",
1993 Cr LJ 314 : (1992) 4 SCC 172 [LNIND 1992 SC 526] .,
"167. Gopal Vinayak Godse v The State of Maharashtra, (1961) 3 SCR 440 [LNIND 1961 SC 11]",
"(Constitution Bench); Dalbir Singh v State of Punjab, (1979) 3 SCC 745 [LNIND 1979 SC 281] ;",
"Maru Ram v UOI, (1981) 1 SCC 107 [LNIND 1980 SC 446] (Constitution Bench); Naib Singh v",
"State of Punjab, (1983) 2 SCC 454 [LNIND 1983 SC 116] ; Ashok Kumar alias Golu v UOI, (1991) 3",
"SCC 498 [LNIND 1991 SC 288] ; Laxman Naskar (Life Convict) v State of WB, (2000) 7 SCC 626",
"[LNIND 2000 SC 1180] ; Zahid Hussein v State of WB, (2001) 3 SCC 750 [LNIND 2001 SC 692] ;",
"Kamalanantha v State of TN, (2005) 5 SCC 194 [LNIND 2005 SC 337] ; Mohd Munna v UOI, (2005)",
"7 SCC 416 [LNIND 2005 SC 701] and CA Pious v State of Kerala, (2007) 8 SCC 312) [LNIND 2007",
SC 1070] .,
"168. Jagmohan Singh v State of UP, (1973) 1 SCC 20 [LNIND 1972 SC 477] .",
"169. Sangeet v State of Haryana, AIR 2013 SC 447 [LNIND 2012 SC 719] : (2013) 2 SCC 452",
[LNIND 2012 SC 719] : 2013 Cr LJ 425 .,
"170. State of Rajasthan v Jamil Khan, 2013 (12) Scale 200 [LNIND 2013 SC 883] .",
"171. Delhi Administration (Now NCT of Delhi) v Madan Lal, 2002 (6) Supreme 77 [LNIND 2002 SC",
533] .,
"172. State (Govt of NCT of Delhi) v Prem Raj, (2003) 7 SCC 121 [LNIND 2003 SC 632] .",
"173. State of Punjab v Kesar Singh, 1996 (5) SCC 495 [LNIND 1996 SC 1091] .",
"174. State of Rajasthan v Jamil Khan, 2013 (12) Scale 200 [LNIND 2013 SC 883] .",
THE INDIAN PENAL CODE,
CHAPTER III OF PUNISHMENTS,
"175.[[s 55A] Definition of ""appropriate Government"".",
"In sections 54 and 55 the expression ""appropriate Government"" means,—",
(a) in cases where the sentence is a sentence of death or is for an offence against,
"any law relating to a matter to which the executive power of the Union extends,",
the Central Government; and,
(b) in cases where the sentence (whether of death or not) is for an offence against,
"any law relating to a matter to which the executive power of the State extends,",
the Government of the State within which the offender is sentenced.],
COMMENT—,
This section was substituted for the old section by the Adaptation of Laws Order 1950.,
The appropriate Government empowered to remit the sentence of a person convicted,
"of offences under sections 489-A to 489-D of the IPC, 1860 is the Central Government",
not the State Government.176.,
"175. Subs. by the A.O. 1950, for section 55A. Earlier section 55A was inserted by the A.O. 1937.",
"176. GV Ramanaiah v Superintendent of Central Jail, Rajahmundry, AIR 1974 SC 31 [LNIND 1973",
"SC 300] : (1974) 3 SCC 531 [LNIND 1973 SC 300] ; Hanumant Dass v Vinay Kumar, AIR 1982 SC",
1052 : (1982) 2 SCC 177 -the appropriate Government is the Government of the State where the,
conviction took place and not the Government of the State where the offence was committed,
(Section 432(7) Cr PC).,
THE INDIAN PENAL CODE,
CHAPTER III OF PUNISHMENTS,
"175.[[s 55A] Definition of ""appropriate Government"".",
"In sections 54 and 55 the expression ""appropriate Government"" means,—",
(a) in cases where the sentence is a sentence of death or is for an offence against,
"any law relating to a matter to which the executive power of the Union extends,",
the Central Government; and,
(b) in cases where the sentence (whether of death or not) is for an offence against,
"any law relating to a matter to which the executive power of the State extends,",
the Government of the State within which the offender is sentenced.],
COMMENT—,
This section was substituted for the old section by the Adaptation of Laws Order 1950.,
The appropriate Government empowered to remit the sentence of a person convicted,
"of offences under sections 489-A to 489-D of the IPC, 1860 is the Central Government",
not the State Government.176.,
"175. Subs. by the A.O. 1950, for section 55A. Earlier section 55A was inserted by the A.O. 1937.",
"176. GV Ramanaiah v Superintendent of Central Jail, Rajahmundry, AIR 1974 SC 31 [LNIND 1973",
"SC 300] : (1974) 3 SCC 531 [LNIND 1973 SC 300] ; Hanumant Dass v Vinay Kumar, AIR 1982 SC",
1052 : (1982) 2 SCC 177 -the appropriate Government is the Government of the State where the,
conviction took place and not the Government of the State where the offence was committed,
(Section 432(7) Cr PC).,
THE INDIAN PENAL CODE,
CHAPTER III OF PUNISHMENTS,
[s 56] Sentence of Europeans and Americans to penal servitude. Proviso as to,
sentence for term exceeding ten years but not for life.,
"[Rep. by the Criminal Law (Removal of Racial Discriminations) Act, 1949 (17 of 1949),",
sec. 2 (w.e.f. 6-4-1949).],
THE INDIAN PENAL CODE,
CHAPTER III OF PUNISHMENTS,
[s 57] Fractions of terms of punishment.,
"In calculating fractions of terms of punishment, 177.[imprisonment] for life shall be",
reckoned as equivalent to 178.[imprisonment] for twenty years.,
COMMENT—,
"Section 57 of the IPC, 1860 does not in any way limit the punishment of imprisonment",
for life to a term of 20 years. Section 57 is only for calculating fractions of terms of,
punishment and provides that imprisonment for life shall be reckoned as equivalent to,
imprisonment for 20 years. The object and purpose of section 57 will be clear by simply,
"referring to sections 65, 116, 119, 129 and 511 of the IPC, 1860.179. The accused has",
thus no right to be released after a period of 20 years. The remissions granted under,
the rules made under the Prison Act or under the Jail Manual are merely administrative,
orders of the appropriate Government and fall exclusively within the discretion of the,
"Government under section 401 (now section 432) Cr PC, 1973. In the case of a prisoner",
who is convicted in one State but transferred to the jail of another State to serve out the,
"sentence, the appropriate Government to grant remission would be the Government of",
the State where the accused was convicted and not that of the transferee,
Government.180.,
[s 57.1] Life imprisonment.—,
Life imprisonment means imprisonment for the whole of a convict's natural life. It does,
"not automatically expire on his serving sentence of 14 years or 20 years, unless, of",
"course, the sentence is remitted or commuted by the Government in accordance with",
the law181. The Court said that life imprisonment means imprisonment for the whole of,
the remaining period of the convict's life. The fact that the West Bengal Correctional,
"Services Act 1992, equates life imprisonment with imprisonment for 20 years does not",
entitle the convict to automatic release on expiry of such term of imprisonment,
including remission.182.,
[s 57.2] Punishment for attempt Under Section 511 when the offence,
attempted is punishable with Life imprisonment.—,
"Section 57 of the IPC, 1860 provides that in calculating fractions of terms of",
"punishment, imprisonment for life shall be reckoned as equivalent to imprisonment for",
"20 years. In view of this, for the offence of attempt to commit rape punishable under",
section 376(2)(a) read with section 511 maximum sentence would be rigorous,
imprisonment for ten years.183.,
"177. Subs. by Act 26 of 1955, sec. 117 and Sch., for ""transportation"" (w.e.f. 1-1-1956).",
"178. Subs. by Act 26 of 1955, section 117 and Sch, for ""transportation"" (w.e.f. 1-1-1956).",
"179. Swamy Shraddananda (2) v State of Karnataka, 2008 (13) SCC 767 [LNIND 2008 SC 1488] :",
AIR 2008 SC 3040 [LNIND 2008 SC 1488] : 2008 Cr LJ 3911 .,
"180. State of MP v Ratan Singh, 1976 Cr LJ 1192 : AIR 1976 SC 1552 [LNIND 1976 SC 215] ; see",
"also Naib Singh v State ofPunjab, (1983) 2 SCC 454 [LNIND 1983 SC 116] : AIR 1983 SC 855",
"[LNIND 1983 SC 116] : 1983 Cr LJ 1345 ; Gopal Vinayak Godse, AIR 1961SC 600 : (1961) 1 Cr LJ",
736 : (1961) 63 Bom LR 517 [LNIND 1961 SC 11] SC.,
"181. Life Convict, Laxman Naskar v State of WB, AIR 2000 SC 2762 [LNIND 2000 SC 1180] : 2000",
Cr LJ 4017 .,
182. See the comments under section 45 and section 55.,
"183. Chandrakant Vithal Pawar v State of Maharashtra, 2011 Cr LJ 4900 (Bom); Syed Ghouse",
"Alias Babu v State of AP, 2009 Cr LJ 311 (AP)(DB).",
THE INDIAN PENAL CODE,
CHAPTER III OF PUNISHMENTS,
[s 58] Offenders sentenced to transportation how dealt with until transported.,
"[Rep. by the Code of Criminal Procedure (Amendment) Act, 1955 (26 of 1955), sec.",
117 and Sch. (w.e.f. 1-1-1956).],
THE INDIAN PENAL CODE,
CHAPTER III OF PUNISHMENTS,
[s 59] Transportation instead of imprisonment.,
"[Rep. by the Code of Criminal Procedure (Amendment) Act, 1955 (26 of 1955), sec.",
117 and Sch. (w.e.f. 1-1-1956).],
THE INDIAN PENAL CODE,
CHAPTER III OF PUNISHMENTS,
[s 60] Sentence may be (in certain cases of imprisonment) wholly or partly,
rigorous or simple.,
In every case in which an offender is punishable with imprisonment which may be of,
"either description, it shall be competent to the Court which sentences such offender",
"to direct in the sentence that such imprisonment shall be wholly rigorous, or that such",
"imprisonment shall be wholly simple, or that any part of such imprisonment shall be",
rigorous and the rest simple.,
COMMENT—,
Life imprisonment means rigorous imprisonment for life.184. A distinction between,
'imprisonment for life' and 'imprisonment for a term' has been maintained in the Indian,
"Penal Code in several of its provisions. Second, by its very terms section 60 is",
applicable to a case where 'an offender is punishable with imprisonment which may be,
of either description' and it is only in such case that it is competent for the Court to,
direct that 'such imprisonment shall be either wholly rigorous or wholly simple or that,
any part of such imprisonment shall be rigorous and the rest simple'. And it is clear that,
whenever an offender is punishable with 'imprisonment for life' he is not punishable,
"with 'imprisonment which may be of either description', in other words section 60",
would be inapplicable. The position in law as regards the nature of punishment,
involved in a sentence of imprisonment for life is well settled and the sentence of,
imprisonment for life has to be equated to rigorous imprisonment for life.185.,
"184. Mohd Munna v UOI, (2005) 7 SCC 417 [LNIND 2005 SC 701] : AIR 2005 SC 3440 [LNIND",
2005 SC 701] .,
"185. Naib Singh case, (1983 (2) SCC 454 [LNIND 1983 SC 116] : 1983 SCC (Cr) 536.",
THE INDIAN PENAL CODE,
CHAPTER III OF PUNISHMENTS,
[s 61] Sentence of forfeiture of property.,
"[Rep. by the Indian Penal Code (Amendment) Act, 1921 (XVI of 1921), sec. 4.]",
THE INDIAN PENAL CODE,
CHAPTER III OF PUNISHMENTS,
"[s 62] Forfeiture of property in respect of offenders punishable with death,",
transportation or imprisonment.,
"[Rep. by the Indian Penal Code (Amendment) Act, 1921 (XVI of 1921), sec. 4.]",
COMMENT—,
These sections were deleted by the Indian Penal Code (Amendment) Act of 1921. They,
imposed the sentence of forfeiture of property. The Court recommended reintroduction,
of these sections because they have become necessary to combat the cancerous,
growth of corruption. These provisions would have a determined effect on those who,
are bent upon to accumulate wealth at the cost of the society by misusing their,
position of power.186.,
"186. Shobha Suresh Jumani v Appellate Tribunal, Forfeited Property, AIR 2001 SC 2288 [LNIND",
2001 SC 1184] : 2001 Cr LJ 2583 .,
THE INDIAN PENAL CODE,
CHAPTER III OF PUNISHMENTS,
[s 63] Amount of fine.,
"Where no sum is expressed to which a fine may extend, the amount of fine to which",
"the offender is liable is unlimited, but shall not be excessive.",
COMMENT—,
A fine is fixed with due regard to circumstances of the case in which it is imposed and,
the condition of life of the offender. When the legislature has not fixed any upper limit,
"for the quantum of fine in respect of a particular offence, the Court has freedom to fix",
any amount but then the Court must see that the fine imposed is not excessively high,
"or repulsively low. Financial capacity of the accused, enormity of the offence and extent",
of damage caused to the victim of the offences etc. are relevant considerations in,
fixing up the amount.187.,
[s 63.1] Fine not to be harsh or excessive.—,
The general principle of law running through sections 63 to 70 is that the amount of,
fine should not be too harsh or excessive. Where a substantial term of imprisonment is,
"inflicted, an excessive fine should not be imposed except in exceptional cases.188.",
"Section 63 does not prescribe any limit to the amount of fine, but it should not be",
excessive. In the present case having regard to the gravity of the offence and the illegal,
"gains made by the accused, the fine imposed to the tune of Rs. 60 crores was held to",
be not excessive.189.,
[s 63.2] Applicability in other Statutes.—,
"Sections 63–70 IPC, 1860 and provision of Cr PC, 1973 relating to the award of",
imprisonment in default of payment of fine would apply to all cases wherein fines have,
"been imposed on an offender unless 'the Act, Regulation, Rules or Bye-law contains an",
express provision to the contrary'.190.,
"187. Sebastian v State of Kerala, 1992 Cr LJ 3642 (Ker) : 1992 (3) Crimes 864 (Ker)",
"188. Shahejadkhan Mahebubkhan Pathan v State of Gujarat, JT 2012 (10) SC 8 [LNIND 2012 SC",
630] : 2012 (10) Scale 21 [LNIND 2012 SC 630] : AIR 2012 (SCW) 5875 (In this judgment the SC,
"quoted the previous edition of this book). See also Shantilal v State of MP, (2007) 11 SCC 243",
[LNIND 2007 SC 1171] : 2008 Cr LJ 386 .,
"189. Association of Victims of Uphaar Tragedy v Sushil Ansal, AIR 2017 SC 976 .",
"190. Shantilal v State of MP, (2007) 11 SCC 243 [LNIND 2007 SC 1171] : 2008 Cr LJ 386 : (2008)",
1 SCC (Cr) 1.,
THE INDIAN PENAL CODE,
CHAPTER III OF PUNISHMENTS,
[s 64] Sentence of imprisonment for non-payment of fine.,
"191. [In every case, of an offence punishable with imprisonment as well as fine, 1 in",
"which the offender is sentenced to a fine, whether with or without imprisonment, and",
"in every case of an offence punishable 192.[with imprisonment or fine, or] with fine",
"only, in which the offender is sentenced to a fine,] it shall be competent to the Court",
"which sentences such offender to direct by the sentence that, in default of payment of",
"the fine, the offender shall suffer imprisonment for a certain term, in which",
imprisonment shall be in excess of any other imprisonment to which he may have,
been sentenced or to which he may be liable under a commutation of a sentence.,
COMMENT—,
The term of imprisonment in default of payment of fine is not a sentence. It is a penalty,
which a person incurs on account of non-payment of fine. The sentence is something,
which an offender must undergo unless it is set aside or remitted in part or in whole,
"either in appeal or in revision or in other appropriate judicial proceedings or ""otherwise"".",
A term of imprisonment ordered in default of payment of fine stands on a different,
footing. A person is required to undergo imprisonment either because he is unable to,
"pay the amount of fine or refuses to pay such amount. He, therefore, can always avoid",
"to undergo imprisonment in default of payment of fine by paying such amount. It is,",
"therefore, not only the power, but also the duty of the Court to keep in view the nature",
"of offence, circumstances under which it was committed, the position of the offender",
and other relevant considerations before ordering the offender to suffer imprisonment,
in default of payment of fine.193. A default sentence is no punishment under law. It is,
only a method of enforcement of the direction for payment of amounts directed to be,
paid as fine. Wherever the Criminal Court has the jurisdictional competence to impose,
"a fine, sections 64–70, IPC, and section 30 Cr PC, 1973 stipulate that the Court can",
recover the same by imposition of a default sentence. The jurisdiction to impose a,
default sentence is only incidental to the power to impose a fine and the duty of the,
"Court to recover the same.194. The wording of the section is not happy, but the",
Legislature intended by it to provide for the award of imprisonment in default of,
payment of fine in all cases in which fine can be imposed to induce the offender to pay,
the fine.,
The cases falling under this section are:—,
"Where the offence is punishable with (a) imprisonment with fine, or (b) imprisonment",
"or fine, or (c) fine only, and the offender is sentenced to (i) imprisonment, or (ii) fine, or",
"both, the Court may sentence the offender to a term of imprisonment in default of",
payment of fine. A term of imprisonment for non-payment of fine is not a substantive,
sentence. It is only a penalty for the default. It cannot be added to the substantive,
sentence so as to see whether the maximum imprisonment that could be awarded for,
the offence is not being exceeded.195.,
1. 'Imprisonment as well as fine.'—Magistrates cannot award compensation in addition,
to fine.196.,
The full Bench of Madras High Court held that imprisonment in default of payment of,
fine cannot be directed to run concurrently with substantive sentence because both the,
"sentences are distinct in view of sections 53 and 64 IPC, 1860.197.",
[s 64.1] Sentence and penalty distinguished.—,
The term of imprisonment in default of payment of fine is not a sentence. It is penalty,
"incurred for non-payment of fine. A sentence is a term of imprisonment, which the",
offender has to undergo unless it is remitted in a further judicial proceeding or,
otherwise. A term of imprisonment on default in payment of fine stands on a different,
footing. The further imprisonment is due to non-payment by refusal or otherwise. The,
convict can pay the amount and get rid of further imprisonment.198.,
[s 64.2] Fine and Compensation.—,
"There exists a distinction between fine and compensation, although, in a way it seeks",
to achieve the same purpose. An amount of compensation can be directed to be,
"recovered as a 'fine' but the legal fiction raised in relation to recovery of fine only, it is in",
that sense 'fine' stands on a higher footing than compensation awarded by the,
Court.199.,
[s 64.3] Power of Magistrate to impose Sentence of imprisonment in default of,
fine.—,
"As per section 30 of Cr PC, 1973 the Court of a Magistrate may award such term of",
imprisonment in default of payment of fine as is authorised by law: provided that the,
"term is not in excess of the powers of the Magistrate under section 29 Cr PC, 1973; and",
"shall not, where imprisonment has been awarded as part of the substantive sentence,",
exceed one-fourth of the term of imprisonment which the Magistrate is competent to,
inflict as punishment for the offence otherwise than as imprisonment in default of,
payment of the fine. The imprisonment awarded may be in addition to a substantive,
sentence of imprisonment for the maximum term awardable by the Magistrate under,
"section 29 of Cr PC, 1973. The default sentence is not to be in excess to the limitations",
"imposed under section 30 Cr PC, 1973.200.",
[s 64.4] Default sentence on non-payment of Compensation.—,
"Undoubtedly, there is no specific provision in the Code which enables the Court to",
sentence a person who commits breach of the order of payment of compensation. But,
"in Hari Singh v Sukhbir Singh,201. Supreme Court held that since the imposition of",
"compensation under section 357(3) Cr PC, 1973 was on account of social concern, the",
"Court could enforce the same by imposing sentence in default, particularly when no",
mode had been prescribed in the Code for recovery of sums awarded as compensation,
in the event the same remained unpaid. The position is re-iterated in Sugnathi Suresh,
"Kumar v Jagdeeshan.202. The provisions of sections 357(3) and 431 Cr PC, 1973 when",
"read with section 64 IPC, 1860 empower the Court, while making an order for payment",
"of compensation, to also include a default sentence in case of non-payment of the",
same.203.,
"191. Subs. by Act 8 of 1882, section 2, for ""In every case in which an offender is sentenced to a",
"fine"".",
"192. Ins. by Act 10 of 1886, section 21(2).",
"193. Shahejadkhan Mahebubkhan Pathan v State of Gujarat, 2012 (10) Scale 21 [LNIND 2012 SC",
630] : (2013) 1 SCC 570 [LNIND 2012 SC 630] : JT 2012 (10) SC 8 [LNIND 2012 SC 630] :,
"Shantilal v State of MP, (2007) 11 SCC 243 [LNIND 2007 SC 1171] : 2008 Cr LJ 386 : (2008) 1",
SCC (Cr) 1.,
"194. C Ganga v Lakshmi Ammal, 2008 Cr LJ 3359 (Ker).",
"195. P Balaraman v State of TN, 1991 Cr LJ 166 Mad at pp 176-177.",
"196. Dilip S Dahanukar v Kotak Mahindra Co Ltd, (2007) 6 SCC 528 [LNIND 2007 SC 451] : 2007",
Cr LJ 2417 : 2007 (4) SCR1122 : (2007) 3 SCC (Cr) 209.,
"197. Donatus Tony Ikwanusi v The Investigating Officer, NCB 2013 Cr LJ 1938 (Mad FB) : 2013",
"(2) CTC1. See also Sukumaran v State, 1993 Cr LJ 3228 (Ker) ; Madappen Muhassin v State of",
"Kerala, 2016Cr LJ 4792 (Ker).",
"198. Shantilal v State of MP, (2007) 11 SCC 243 [LNIND 2007 SC 1171] : (2008) 1 SCC Cri 1",
[LNIND 2007 SC 1171] .,
"199. Dilip S Dahanukar v Kotak Mahindra Co Ltd, (2007) 6 SCC 528 [LNIND 2007 SC 451] : 2007",
Cr LJ 2417 : 2007 (4) SCR1122 : (2007) 3 SCC (Cr) 209.,
"200. Kuna Maharana v State, 1996 Cr LJ 170 (Ori).",
201. AIR 1988 SC 2127 [LNIND 1988 SC 411] : (1988) 4 SCC 551 [LNIND 1988 SC 411] .,
"202. Sugnathi Suresh Kumar v Jagdeeshan, AIR 2002 SC 681 [LNIND 2002 SC 1622] : (2002) 2",
SCC 420 [LNIND 2002 SC 1622] .,
"203. Vijayan v Sadanandan, (2009) 6 SCC 652 [LNIND 2009 SC 1119] : 2009 Cr LJ 2957 : (2009)",
"3 SCC (Cr) 296; C Ganga v Lakshmi Ammal, 2008 Cr LJ 3359 (Ker).",
THE INDIAN PENAL CODE,
CHAPTER III OF PUNISHMENTS,
"[s 65] Limit to imprisonment for non-payment of fine, when imprisonment and",
fine awardable.,
The term for which the Court directs the offender to be imprisoned in default of,
payment of a fine shall not exceed one-fourth of the term of imprisonment which is,
"the maximum fixed for the offence, if the offence be punishable with imprisonment as",
well as fine.,
COMMENT—,
This section applies to all cases where the offence is 'punishable with imprisonment as,
"well as fine,' i.e., cases where fine and imprisonment can be awarded, and also those",
"where the punishment may be either fine or imprisonment, but not both. The only cases",
that it does not apply to are those dealt with in section 67 where fine only can be,
"awarded.204. Section 33 (now 30) of the Cr PC, 1973 acts as a corollary to this section.",
"Thus under section 65, IPC, 1860 the imprisonment in default of fine cannot exceed",
one-fourth of the maximum term of imprisonment that can be awarded for the offence.,
"Thus, where the High Court altered the conviction of the appellant to one under section",
"419 read with section 109 IPC, from a conviction recorded by the trial Court under",
"sections 420/511, 467, 468 and 471 read with section 120B IPC, and awarded a",
"sentence of two years' rigorous imprisonment while maintaining the fine of Rs. 3,000",
"and by implication the default imprisonment of two years as awarded by the trial Court,",
"it was held that, though the trial Court's order regarding two years' imprisonment in",
default of payment of fine was quite in order in view of the fact that the five offences,
for which the trial Court recorded a conviction were each punishable with seven years',
"imprisonment and the fine of Rs. 3,000 was only a part of the cumulative sentence for",
"the commission of those five offences, yet the sentence of three years' imprisonment",
in default of payment of fine became illegal the moment the High Court altered the,
"conviction to one under section 419 read with section 109 IPC, as under these sections",
"the accused could be sentenced to a maximum of three years' imprisonment and,",
"therefore, the default imprisonment could under no circumstance exceed nine months,",
"that is, one-fourth of the maximum sentence of three years that could be awarded",
"under section 419, IPC.205. While a Magistrate's powers are specifically limited by",
section 33(old) Cr PC they must also be exercised so as not to contravene section 65,
"IPC.206. Section 326, IPC is punishable with imprisonment for life, or with imprisonment",
"of either description for a term which may extend to ten years, and shall also be liable",
"to fine. However, because of section 29(2), Cr PC the learned Magistrate, First Class,",
cannot impose the maximum amount of imprisonment prescribed by this section; he,
"also cannot, by resorting to section 65, IPC, award a period of imprisonment, in default",
"of payment of fine, on the erroneous assumption that he has the power to award the",
"maximum sentence prescribed by section 326, IPC.207. Section 65 IPC that puts a limit",
"of imprisonment for default sentence upto one-fourth of the term of imprisonment, the",
"grievance against higher default sentence, if any, can be only by the accused and not by",
the State.208.,
"204. Yakoob Sahib v State, (1898) 22 Mad 238.",
"205. Ram Jas v State of UP, 1974 Cr LJ 1261 : AIR 1974 SC 1811 [LNIND 1970 SC 363] ; see also",
"Partap Kumar, 1976 Cr LJ 818 (P&H).",
"206. Chhajulal v State of Rajasthan, AIR 1972 SC 1809 [LNIND 1972 SC 179] : (1972) 3 SCC 411",
"[LNIND 1972 SC 179] . See Shantilal v State of MP, (2007) 11 SCC 243 [LNIND 2007 SC 1171] :",
2008 Cr LJ 386 : (2008) 1 SCC (Cr) 1 in which the period of three years imprisonment for default,
of fine was reduced to six months.,
"207. Bidhan Bisoi v State of Orissa, 1989 Cr LJ 1038 (Ori).",
"208. Association of Victims of Uphaar Tragedy v Sushil Ansal, AIR 2017 SC 976 .",
THE INDIAN PENAL CODE,
CHAPTER III OF PUNISHMENTS,
[s 66] Description of imprisonment for non-payment of fine.,
The imprisonment which the Court imposes in default of payment of a fine may be of,
any description to which the offender might have been sentenced for the offence.,
COMMENT—,
The imprisonment in default of payment of a fine may be either rigorous or simple.,
THE INDIAN PENAL CODE,
CHAPTER III OF PUNISHMENTS,
[s 67] Imprisonment for non-payment of fine when offence punishable with,
fine only.,
"If the offence be punishable with fine only,209. [the imprisonment which the Court",
"imposes in default of payment of the fine shall be simple, and] the term for which the",
"Court directs the offender to be imprisoned, in default of payment of fine, shall not",
"exceed the following scale, that is to say, for any term not exceeding two months",
"when the amount of the fine shall not exceed fifty rupees, and for any term not",
"exceeding four months when the amount shall not exceed one hundred rupees, and",
for any term not exceeding six months in any other case.,
COMMENT—,
This section refers solely to cases in which the offence is punishable with fine only and,
"has no application to an offence punishable either with imprisonment or with fine, but",
not with both. Such offences are governed by section 65. For a consideration under this,
"section of the Narcotic Drugs and Psychotropic Substances Act (61 of 1985), section",
"21 of which imposes a fine and imprisonment in default, see Daulat Raghunath Derale v",
State of Maharashtra.210.,
[s 67.1] Default sentence on non-payment of Maintenance.—,
"The sentence is imposed under section 125(3) of Cr PC, 1973 only as a mode of",
enforcement of the direction to pay the amount of maintenance and not as a,
punishment. The Supreme Court was considering the question whether the default,
"sentence, if undergone shall wipe off the liability.211. It is impermissible to impose a",
"sentence of rigorous imprisonment on a defaulter under section 125(3) Cr PC, 1973.",
Only a sentence of simple imprisonment can be imposed under section 125(3) of Cr,
"PC, 1973.212.",
"209. Ins. by Act 8 of 1882, section 3.",
"210. Daulat Raghunath Derale v State of Maharashtra, 1991 Cr LJ 817 .",
"211. Kuldip Kaur v Surinder Singh, ( AIR 1989 SC 232 [LNIND 1988 SC 987] ) : 1989 Cr LJ 794 . It",
was held that the purpose of sending him to jail is not to wipe out the liability which he has,
refused to discharge. A sentence of jail is no substitute for the recovery of the amount of,
monthly allowance which has fallen in arrears.,
"212. Moideenkutty Kunhankutty Haji v State of Kerala, 2008 Cr LJ 3402 (Ker).",
THE INDIAN PENAL CODE,
CHAPTER III OF PUNISHMENTS,
[s 68] Imprisonment to terminate on payment of fine.,
The imprisonment which is imposed in default of payment of a fine shall terminate,
whenever that fine is either paid or levied by process of law.,
COMMENT—,
"The person sentenced to pay a fine must deposit the fine forthwith, but may be,",
permitted to deposit it after some time in the discretion of the Court. Even in that event,
he must deposit the amount before the period specifically fixed by the Court and if he,
"does not do so, he immediately incurs the liability of being sent to prison. It would be",
the duty of the Court to arrest him and confine him into the prison. Only when such,
confinement in the prison has commenced that the accused can have a legal right to,
"deposit the amount whereupon section 68 IPC, 1860 would come into operation and",
his imprisonment would terminate.213. The time given by the High Court or the,
Sessions Judges in appeal or revision for payment of fine merely means that the,
"realisation is deferred till the time granted. However, this cannot take away the rights of",
"the convicts as provided under section 68 and section 69 of the IPC, 1860. If the",
"convict offers to deposit the fine imposed on him beyond the period provided, the",
Courts cannot refuse to accept the same. It must apply the provisions of section 68,
"and section 69 of the IPC, 1860.214. The period to deposit the amount of fine cannot be",
"extended by the High Court under section 482 Cr PC, 1973 and the petitioners can avail",
"the remedy of provisions of section 68 of IPC, 1860.215.",
"213. Ram Lakhan v State, 1986 Cr LJ 617 (All); Usman v State of UP, 2007 Cr LJ 3868 (All).",
"214. State of Assam v Bir Bahadur Singh, 2005 Cr LJ 4345 (Gau).",
"215. Prahalad Singh v State of MP, 2009 Cr LJ 3161 (MP); Ram Lakhan v State, 1986 Cr LJ 617",
(All).,
THE INDIAN PENAL CODE,
CHAPTER III OF PUNISHMENTS,
[s 69] Termination of imprisonment on payment of proportional part of fine.,
"If, before the expiration of the term of imprisonment fixed in default of payment, such",
a proportion of the fine be paid or levied that the term of imprisonment suffered in,
"default of payment is not less than proportional to the part of the fine still unpaid, the",
imprisonment shall terminate.,
ILLUSTRATION,
A is sentenced to a fine of one hundred rupees and to four months' imprisonment in,
"default of payment. Here, if seventy-five rupees of the fine be paid or levied before the",
"expiration of one month of the imprisonment, A will be discharged as soon as the first",
month has expired. If seventy-five rupees be paid or levied at the time of the expiration,
"of the first month, or at any later time while A continues in imprisonment, A will be",
immediately discharged. If fifty rupees of the fine be paid or levied before the expiration,
"of two months of the imprisonment, A will be discharged as soon as the two months",
are completed. If fifty rupees be paid or levied at the time of the expiration of those two,
"months, or at any later time while A continues in imprisonment, A will be immediately",
discharged.,
COMMENT—,
If the fine imposed on an accused is paid or levied while he is imprisoned for default of,
"payment, his imprisonment will immediately terminate: and if a proportion of the fine",
"be paid during the imprisonment, a proportional abatement of the imprisonment will",
"take place. The Court has, however, no power to refund fine. If the time limit had been",
set by the Court for payment of fine and the fine amount is not paid within the time so,
"fixed, then it goes without saying that the petitioner-accused has to either surrender",
before the Court or the prosecuting agency will be in a position to arrest him and,
produce before Court for his detention in prison for undergoing the default,
sentence.216. In case of default in payment of fine accused not obeying specific,
directions as to making payment and postponing payment without surrendering into,
Court. Accused is guilty of abuse of process of Court.217.,
"216. Prahalad Singh v State of M P, 2009 Cr LJ 3161 (MP).",
"217. Ram Lakhan v The State, 1986 Cr LJ 617 (All).",
THE INDIAN PENAL CODE,
CHAPTER III OF PUNISHMENTS,
"[s 70] Fine leviable within six years, or during imprisonment. Death not to",
discharge property from liability.,
"The fine, or any part thereof which remains unpaid, may be levied at any time within",
"six years after the passing of the sentence, and if, under the sentence, the offender be",
"liable to imprisonment for a longer period than six years, then at any time previous to",
the expiration of that period; and the death of the offender does not discharge from,
"the liability any property which would, after his death, be legally liable for his debts.",
COMMENT—,
Imprisonment in default of fine does not liberate the offender from his liability to pay,
the full amount of fine imposed on him. Such imprisonment is not a discharge or,
satisfaction of the fine but is imposed as a punishment for non-payment or contempt,
or resistance to the due execution of the sentence. The offender cannot be permitted,
to choose whether he will suffer in his person or his property. His person will cease to,
"be answerable for the fine. Nevertheless, his property will for a time continue to do so.",
The bar of six years may save the property of the accused but not his personal arrest.,
The liability for any sentence of imprisonment awarded in default of payment of fine,
continues after the expiration of six years.218. Any proceeding taken after six years to,
recover the fine by sale of immoveable property of the offender is time-barred.219. The,
limitation starts from the date of passing of the sentence of conviction by the trial,
Court and not the date of dismissal of the appeal or revision preferred by the,
accused.220. The property of the accused is liable for the payment of fine even if he has,
undergone imprisonment in default of fine and as such even on death of the offender,
"does not discharge any property which would after his death, be legally liable for his",
debts due from him (including liability) to discharge the fine.221.,
"The expression ""levy"" in this section means ""to seize"" for the purpose of collecting the",
fine or to enforce execution for a certain sum and not actual realisation.222. Any stay or,
suspension obtained from the higher Court has to be excluded in computing the period,
of six years' limitation under section 70 IPC.223. Section 70 says that State shall levy,
fine within six years from the date of sentence. What is contemplated is that the State,
"shall commence recovery proceedings within six years; and, need not be completed it",
"within six years of the sentence. Therefore, once a distress warrant is issued within six",
"years of the sentence, the plea of limitation is out of bounds for the sentence.224.",
"218. Ganu Sakharam, (1884) Unrep. Cr C 207.",
"219. Collector of Broach v Ochhavlal Bhikalal, (1940) 43 Bom LR 122 , (1941) Bom 147. State v",
"Krishna Pillai Madhavan Pillai, 1953 Cr LJ 1265",
"220. Palakdhari Singh, AIR 1962 SC 1145 [LNIND 1962 SC 17] : (1962) 2 Cr LJ 256 .",
"221. P R Anjanappa v Yurej Agencies Pvt Ltd, 2004 Cr LJ 2565 (Kar).",
"222. Ramaswamy, (1962) 64 Bom LR 440 : 1963 (1) Cr LJ 152",
"223. Mahtab Singh v State of UP, 1979 Cr LJ 1077 : AIR 1979 SC 1263 [LNIND 1978 SC 186] .",
"224. Mahtab Singh, Supra; see also Brahameshwar Prasad Sinha, 1983 Cr LJ 8 (Pat).",
THE INDIAN PENAL CODE,
CHAPTER III OF PUNISHMENTS,
[s 71] Limit of punishment of offence made up of several offences.,
"Where anything which is an offence is made up of parts, any of which parts is itself an",
"offence, the offender shall not be punished with the punishment of more than one of",
"such his offences, unless it be so expressly provided.",
225. [Where anything is an offence falling within two or more separate definitions of,
"any law in force for the time being by which offences are defined or punished, or",
"where several acts, of which one or more than one would by itself or themselves",
"constitute an offence, constitute, when combined, a different offence,",
the offender shall not be punished with a more severe punishment than the Court,
which tries him could award for any one of such offences.],
ILLUSTRATIONS,
(a) A gives Z fifty strokes with a stick. Here A may have committed the offence of,
"voluntarily causing hurt to Z by the whole beating, and also by each of the blows",
"which make up the whole beating. If A were liable to punishment for every blow,",
"he might be imprisoned for fifty years, one for each blow. But he is liable only to",
one punishment for the whole beating.,
"(b) But if, while A is beating Z, Y interferes, and A intentionally strikes Y, here, as the",
"blow given to Y is no part of the act whereby A voluntarily causes hurt to Z, A is",
"liable to one punishment for voluntarily causing hurt to Z, and to another for the",
blow given to Y.,
COMMENT—,
"The section says that where an offence is made up of parts, each of which constitutes",
"an offence, the offender should not be punished for more than one offence unless",
expressly provided. Where an offence falls within two or more separate definitions of,
"offences; or where several acts of which one or more than one would, by itself or",
"themselves, constitute an offence, constitute, when combined, a different offence, the",
offender should not be punished with a more severe punishment than the Court which,
tries him could award for any one of such offences. The section governs the whole,
Code and regulates the limit of punishment in cases in which the greater offence is,
"made up of two or more minor offences. It is not a rule of adjective law or procedure,",
"but a rule of substantive law regulating the measure of punishment, and it does not,",
"therefore, affect the question of conviction, which relates to the province of procedure.",
"Section 71 IPC, 1860 as well as section 26 of the General Clauses Act, 1897 talk only of",
"punishment and not of conviction. Thus, conviction of the accused in respect of the",
same act for two different offences is quite legal.226. The section contemplates,
separate punishments for an offence against the same law and not under different,
"laws. Where offences are committed under two separate enactments, section 71 IPC,",
"1860 is not helpful to the accused and as such, two separate sentences cannot be",
questioned by pressing section 71 into service.227. In order to attract provisions of,
"Article 20(2) of the Constitution, i.e., doctrine of autrefois acquit or section 300 Cr PC,",
"1973 or section 71 IPC, 1860 or section 26 of the General Clauses Act, 1897",
ingredients of the offences in the earlier case as well as in the latter case must be the,
same and not different. The test to ascertain whether the two offences are the same is,
not identity of the allegations but the identity of the ingredients of the offence.228.,
The rules for assessment of punishment are laid down in sections 71 and 72 of the,
"IPC, 1860 and section 31 of the Cr PC, 1973. Section 31 of the Code of Criminal",
Procedure provides that when a person is convicted at one trial of two or more,
"offences, the Court may, subject to the provisions of section 71 of the IPC, 1860,",
"sentence him, for such offences, to the several punishments prescribed therefor which",
"such Court is competent to inflict; and in the case of consecutive sentences, it shall not",
"be necessary for the Court, by reason only of the aggregate punishment for the several",
offence being in excess of the punishment which it is competent to inflict on conviction,
"of a single offences, to send the offender for trial before a higher Court. It, therefore,",
"enhances the ordinary powers of sentences given to Magistrates by section 29, Cr PC,",
"1973; but in order to bring a case within the purview of this section, the accused must",
"have been convicted of two or more offences in the same trial, and the sentence for",
any one of these offences should not exceed the limits of their ordinary powers. The,
"limits fixed by this section refer to sentences passed simultaneously, or upon charges",
which are tried simultaneously. Sentences of imprisonment passed under it may run,
"concurrently. When an accused is convicted at one trial of two or more offences,",
"section 31(1) of Cr PC, 1973 vests discretion in Court to direct that punishment shall",
run concurrently. Court may sentence the accused for such offences to several,
"punishments prescribed therefor, and such punishment would consist of imprisonment",
"to commence, one after expiration of other in such order as the Court may direct,",
"subject to limitation contained in section 71 of IPC, 1860.229.",
[s 71.1] Illustration (a).—,
"""A gives Z fifty strokes with a stick. Here A may have committed the offence of",
"voluntarily causing hurt to Z by the whole beating, and also by each of the blows which",
"make up whole beating. If A were liable to punishment for every blow, he might be",
"imprisoned for 50years, one for each blow. But he is liable only to one punishment for",
"the whole beating."" It is to be noted that the whole beating is considered to constitute",
one offence while each of the blows also amounted to the offence of voluntarily,
"causing hurt. It can be said, therefore, that while the obtaining of money by cheating on",
the presentation of an individual bill did constitute the offence of cheating the,
obtaining of the entire money in pursuance of the terms of the single contract and the,
single conspiracy entered into also constituted the offence of cheating. When the,
accused could not be punished with the punishment for more than one such offence it,
"cannot be the intention of law that the accused be charged with each of the offences,",
which were in a way included in the complete offence made up by the entire course of,
conduct of the accused in pursuance of the conspiracy.230.,
[s 71.2] Section 71 IPC and section 220 Cr PC.—,
"Section 71 of the IPC, 1860 has to be read in conjunction with section 220 of the Cr PC,",
"1973. It should, however, be remembered that section 220 Cr PC, 1973 contains only",
rules of criminal pleading in regard to joinder of charges and does not deal with the,
sentence to be passed on the charges of the offences mentioned in the several,
"illustrations thereunder. Sub-section (5) of section 220 Cr PC, 1973 makes this position",
"abundantly clear. A joint reading of section 71 IPC, 1860 and section 220 Cr PC, 1973",
"clearly shows that clause (2) of section 71 IPC, 1860 approximates sub-section (3) of",
"section 220 Cr PC, 1973 and clause (3) of section 71 IPC, 1860 corresponds to sub-",
"section (4) of section 220 Cr PC, 1973. It, therefore, follows that the embargo on",
"separate sentence under section 71 IPC, 1860 applies only to cases falling within sub-",
"sections (3) and (4) of section 220 Cr PC, 1973 and not under, for example, sub-section",
"(1) of that section.231. Thus in cases covered by illustrations (i), (j) and (k) to sub-",
"section (3) and illustration (m) to sub-section (4) of section 220 Cr PC, though the",
offences mentioned therein could be tried together and conviction recorded in regard,
"to each one of them, yet no separate sentences could be passed in view of the",
"embargo contained in section 71 IPC, 1860. Similarly, where the accused was",
"convicted and sentenced under section 147 IPC, 1860 a separate sentence under",
"section 143 IPC, 1860 could not be passed.232. In the same way when an accused is",
"convicted for a more serious offence, e.g., under section 148 IPC, 1860 a separate",
"sentence under section 147 IPC, 1860 is not only uncalled for but illegal.233. It,",
"therefore, means that cases falling under sub-section (1) of section 220 Cr PC, 1973",
"where several distinct offences are committed in course of the same transaction, the",
accused cannot only be tried and convicted of all of them at one trial but even separate,
"sentences can be passed in regard to each one of them. Thus, where a person",
"commits lurking house-trespass by night (section 457 IPC, 1860) and also commits",
"theft (section 380 IPC, 1860) in course of the same transaction, he can be convicted",
"and sentenced separately for both of them.234. Though the offence under section 420,",
"IPC, 1860 and offence under section 138, N.I. Act are very distinct and their ingredients",
"are different, still both the offences were committed during the same transaction;",
accused could have been charged and tried for both the offences during single trial as,
"per section 220, Cr PC, 1973. However, from the language of section 220, it appears to",
be enabling provision whereby two or more different offences may be tried together by,
the Court and not mandatory.235.,
[s 71.3] CASES.—,
1.It was contended that the accused having caused the evidence of the two offences,
"under sections 330 and 348 to disappear, committed two separate offences under",
"section 201 and are punishable accordingly. Taking a strict view of the matter, it must",
be said that by the same act the appellants committed two offences under section 201.,
"The case is not covered either by section 71 of the IPC, 1860 or by section 26 of the",
"General Clauses Act, and the punishment for the two offences cannot be limited under",
"those sections. But, normally, no Court should award two separate punishments for the",
same act constituting two offences under section 201. The appropriate sentence under,
section 201 for causing the evidence of the offence under section 330 to disappear,
"should be passed, and no separate sentence need be passed under section 201 for",
causing the evidence of the offence under section 348 to disappear.236. Where death,
was caused by rash and negligent driving of a truck and the accused could be,
"convicted under sections 279 and also under sections 304A, it was held that a separate",
sentence under sections 279 could not be imposed.237.,
[s 71.4] Rioting and grievous hurt.—,
The illustration (a) to section 71 IPC makes it clear that where only an offence is made,
"up of many parts, and then only, the offender shall not be punished for more than one",
such offence. When the offences are separate and distinct and do not constitute parts,
"of one offence, the accused can be convicted separately for each one of the offences.",
"Therefore, the argument that the sentence both under sections 148 and 324, IPC is",
"opposed to section 71, IPC is not acceptable.238.",
The provisions of section 31 of the Code of Criminal Procedure have to be read subject,
to the provisions of this section and that where anything is an offence falling within two,
or more separate definitions of any law in force for the time being by which offences,
"are defined or punished, the offender shall not be punished with more severe",
punishment than the Court which tries him could award for anyone of such,
offences.239.,
3. Same facts constituting different offences.—It has been held that although the act,
"of the petitioner is only one, namely plying of overloaded vehicle on the public road, he",
"had committed two distinct offences punishable under two different enactments,",
namely (i) violation of the terms of permit and certificate of registration granted by the,
"authorities which is punishable under the Motor Vehicles Act, 1988 and (ii) causing",
damage to the public property which is punishable under the Prevention of Damage to,
"Public Property Act, 1984. Hence, the claim of the petitioner that he is being punished",
more than once for the same offence violating Article 20(2) of the Constitution of India,
is neither factually correct nor legally tenable as he is being proceeded against for two,
distinct offences punishable under two separate Acts and no parallel procedure for the,
same offence is being adopted.240. Prosecution under sections 5 and 6 of Rajasthan,
Sati (Prevention) Act 1987 not barred since section 5 makes the commission of an act,
an offence and punishes the same while the provisions of section 6 are preventive in,
nature and make provision for punishing contravention of prohibitory order so as to,
make the prevention effective. The two offences have different ingredients.241.,
4. An act giving rise to an offence and an aggravated form of the same offence.—,
Section 457 makes punishable lurking house trespass by night or house breaking by,
night in order to the committing of any offence punishable with imprisonment and if,
"the offence intended to be committed is theft, the punishment is higher. Section 380",
"makes punishable a theft committed in a dwelling house. The two offences do not, in",
"our opinion, fall under section 71 and, therefore, the conviction under both the sections",
is not illegal.242.,
"225. Added by Act 8 of 1882, sec. 4.",
"226. Ramanaya v State, 1977 Cr LJ 467 (Pat).",
"227. Re Natarajan, 1976 Cr LJ 1502 (Mad); see also Sukhnandan v State, (1917) 19 Cr LJ 157 .",
"228. Mahendrabhai v State of Gujarat, AIR 2012 SC 2844 [LNIND 2012 SC 1473] : (2012) 7 SCC",
621 [LNIND 2012 SC 1473] : 2012 Cr LJ 2432 .,
"229. Satnam Singh Puransing Gill v State of Maharashtra, 2009 Cr LJ 3781 .",
"230. Banwarilal Jhunjhunwala v UOI, AIR 1963 SC 1620 [LNIND 1962 SC 382] : 1963 (Supp2)",
SCR 338 : 1963 Cr LJ 529 .,
"231. Nirichan, 12 M. 36; Kalidas, 38 C 453 : Wazir, 10A 58.",
"232. Poovappa, 1981 Cr LJ NOC 107 (Kant).",
"233. Re Thangavelu, 1972 Cr LJ 390 (Mad).",
"234. Udai Bhan, 1962 (2) Cr LJ 251 : AIR 1962 SC 1116 [LNIND 1962 SC 37] ; see also Ramanaya",
"v State, 1977 Cr LJ 467 (Pat).",
"235. Sharan P Khanna v Oil & Natural Gas Corp Ltd, 2010 Cr LJ 4256 (Bom).",
"236. Roshan Lal v State of Punjab, AIR 1965 SC 1413 [LNIND 1964 SC 339] : 1965 (2) Cr LJ 426 .",
"See also Nafe Singh v State of Haryana, (1971) 3 SCC 934 : (1972) 1 SCC (Cr) 182; Kharkan v",
"State of UP, AIR 1965 SC 83 [LNIND 1963 SC 205] : 1965 (1) Cr LJ 116 .",
"237. Kantilal Shivabhai v State of Gujarat, 1990 Cr LJ 2500 (Guj).",
"238. Angadi Chennaiah v State of AP, 1985 Cr LJ 1366 (AP).",
"239. Puranmal, AIR 1958 SC 935 [LNIND 1958 SC 89] : 1958 Cr LJ 1432 .",
"240. Vikash Kumar Singh v State of Bihar, AIR 2011 Pat 72 [LNINDORD 2011 PAT 7073] .",
"241. State of Rajasthan v Hat Singh, 2003 (2) SCC 152 [LNIND 2003 SC 7] : AIR 2003 SC 791",
[LNIND 2003 SC 7] .,
"242. Udai Bhan v State of UP, AIR 1962 SC 1116 [LNIND 1962 SC 37] : 1962 Cr LJ 251 .",
THE INDIAN PENAL CODE,
CHAPTER III OF PUNISHMENTS,
"[s 72] Punishment of person guilty of one of several offences, the judgment",
stating that it is doubtful of which.,
In all cases in which judgment is given that a person is guilty of one of several,
"offences specified in the judgment, but that it is doubtful of which of these offences,",
"he is guilty, the offender shall be punished for the offence for which the lowest",
punishment is provided if the same punishment is not provided for all.,
COMMENT—,
This provision is intended to prevent an offender whose guilt is fully established from,
eluding punishment on the ground that the evidence does not enable the tribunal to,
pronounce with certainty under what penal provision his case falls. The section applies,
to cases in which the law applicable to a certain set of facts is doubtful. The doubt,
"must be as to which of the offences the accused has committed, not whether he has",
"committed any. Moreover, this rule would apply even if one of the alternatives were an",
offence of murder.243.,
"243. Sahel Singh, 3 Cr LJ 364; see also Nesti Mondal, AIR 1940 Pat 289 .",
THE INDIAN PENAL CODE,
CHAPTER III OF PUNISHMENTS,
[s 73] Solitary confinement.,
Whenever any person is convicted of an offence for which under this Code the Court,
"has power to sentence him to rigorous imprisonment, the Court may, by its sentence,",
order that,
the offender shall be kept in solitary confinement for any portion or portions of the,
"imprisonment to which he is sentenced, not exceeding three months in the whole,",
"according to the following scale, that is to say—",
a time not exceeding one month if the term of imprisonment shall not exceed six,
months;,
a time not exceeding two months if the term of imprisonment shall exceed six months,
and 244.[shall not exceed one] year;,
a time not exceeding three months if the term of imprisonment shall exceed one year.,
COMMENT—,
Solitary confinement amounts to keeping the prisoner thoroughly isolated from any,
kind of contact with the outside world. It is inflicted in order that a feeling of loneliness,
may produce wholesome influence and reform the criminal. This section gives the,
"scale according to which solitary confinement may be inflicted. Where the petitioner, an",
"undertrial prisoner, who was arrested in connection with the assassination of a former",
"Prime Minister was put in a separate cell only as a precautionary measure, to ensure",
"his non-mingling with other prisoners and for his security, it was held that it did not",
amount either to solitary confinement or cellular confinement.245. The well-known,
principle of law is that the convict carrying death punishment is not deemed to be,
"'prisoner under sentence of death' unless death sentence becomes final, conclusive",
and beyond judicial scrutiny. Such convict is handed over to the jail authority to be kept,
in safe and protected custody with purpose that he may be available for execution of,
the sentence eventually confirmed. This custody is different from custody of a convict,
"suffering from simple or rigorous imprisonment. Therefore, he cannot be kept in Cell or",
solitary confinement which itself is a separate punishment.246.,
[s 73.1] Convicts on death row.—,
The question about solitary confinement or keeping condemned prisoner alone under,
strict guard as provided in various jail manual has been considered in depth by the,
Constitution Bench in Sunil Batra v Delhi Administration247. and Triveniben v State of,
"Gujarat.248. In Batra's case, it has been held that if the prisoner under sentence of death",
"is held in jail custody, punitive detention cannot be imposed upon him by jail authorities",
except for prison offences. When a prisoner is committed under a warrant for jail,
"custody under section 366(2) Cr PC, 1973 and if he is detained in solitary confinement",
"which is a punishment prescribed by section 73, IPC, 1860 it will amount to imposing",
punishment for the same offence more than once which would be violative of Article,
20(2). Practice of keeping prisoners in condemned cell before confirmation is a pre-,
"constitutional practice and such practices should be avoided. Therefore, practice",
adopted in the jail until now cannot be a ground of putting the petitioners in solitary,
confinement or separate condemned cells.249.,
The Supreme Court in Shatrughan Chauhan v UOI250. held that to be 'under sentence of,
"death' means 'to be under a finally executable death sentence'. The Court, in this case",
also issued guidelines for safeguarding the rights of the death row convicts.,
"244. Subs. by Act 8 of 1882, section 5, ""for be less than a"".",
"245. Perrarivalan v IG of Prisons, Madras, 1992 Cr LJ 3125 (Mad).",
"246. Anand Mohan v State of Bihar, 2008 Cr LJ 1273 (Pat).",
"247. Sunil Batra v Delhi Administration, AIR 1978 SC 1675 [LNIND 1978 SC 215] : 1978 Cr LJ",
1741 .,
"248. Triveniben v State of Gujarat, AIR 1989 SC 1335 [LNIND 1989 SC 885] : 1990 Cr LJ 1810 .",
"Also see Kishor Singh Ravinder Dev v State of Rajasthan, AIR 1981 SC 625 [LNIND 1980 SC 436] :",
(1981) 1 SCC 503 [LNIND 1980 SC 436] .,
"249. Acharaparambath Pradeepan v State of Kerala, 2004 Cr LJ 755 (Ker).",
"250. Shatrughan Chauhan v UOI, 2014 Cr LJ 1327 .",
THE INDIAN PENAL CODE,
CHAPTER III OF PUNISHMENTS,
[s 74] Limit of solitary confinement.,
"In executing a sentence of solitary confinement, such confinement shall in no case",
"exceed fourteen days at a time, with intervals between the periods of solitary",
confinement of not less duration than such periods; and when the imprisonment,
"awarded shall exceed three months, the solitary confinement shall not exceed seven",
"days in any one month of the whole imprisonment awarded, with intervals between",
the periods of solitary confinement of not less duration than such periods.,
COMMENT—,
Solitary confinement if continued for a long time is sure to produce mental,
derangement.,
"The section limits the solitary confinement, when the substantive sentence exceeds",
"three months, to seven days in any one month. Solitary confinement must be imposed",
at intervals. A sentence inflicting solitary confinement for the whole imprisonment is,
"illegal, though not more than 14 days is awarded.251.",
"251. Nyan Suk Mether, (1869) 3 Beng LR 49.",
THE INDIAN PENAL CODE,
CHAPTER III OF PUNISHMENTS,
252.[[s 75] Enhanced punishment for certain offences under Chapter XII or,
Chapter XVII after previous conviction.,
"Whoever, having been convicted, 1 —",
"(a) by a Court in 253.[India], of an offence punishable under Chapter XII or Chapter",
XVII of this Code with imprisonment of either description for a term of three,
"years or upwards, 254.[***]",
255. [***],
shall be guilty of any offence punishable under either of those Chapters with like,
"imprisonment for the like term, shall be subject for every such subsequent offence to",
"256.[imprisonment for life], or to imprisonment of either description for a term which",
may extend to ten years.],
COMMENT—,
Principle.—This section does not constitute a separate offence but only imposes a,
"liability to enhanced punishment. What section 75 IPC, 1860 contemplates is that",
"where a person who has been, previously convicted of an offence punishable under",
Chapter XII (which deals with offences relating to coin and Government stamps) or,
Chapter XVII. (which relates to offences against property) with imprisonment of either,
"description for a term of three years or up-wards, is once again found guilty of a similar",
"offence, he shall be liable to enhanced punishment which may extend to imprisonment",
for life or to imprisonment of either description for a term which may extend to ten,
years. The section is concerned with a previous conviction for a similar offence but it,
"does not postulate that in respect of the previous conviction, the punishment imposed",
should have been one of not less than three years. All that it posits is that the previous,
conviction should have been in respect of an offence punishable with a term of,
"imprisonment for a term of three years or upwards, but it does not lay down that the",
offender should have been actually punished with such a term of imprisonment.257. It,
does not apply to offences under other Acts.258.,
1. 'Having been convicted'.—A plain reading of this provision goes to show that the,
previous conviction ought to be for offence punishable under Chapter XII or Chapter,
XVII and the sentence imposed is three years or more than that. If the sentence is less,
than three years or the offence does not fall within any of the two Chapters then,
"section 75, IPC, 1860 would not be applicable. If any authority is required then",
"reference may be made to Re Kamya,259. wherein it has been held that the minimum",
"required for enhancement of punishment under section 75, IPC, 1860 is that the",
previous conviction of the accused should have resulted in punishment of three years,
or more.260. Section 75 is invoked for enhancement of the sentence and that can come,
only at the time the sentence is to be imposed. The fact that the accused is an old,
offender is not to be taken note of by the Court at the trial. Only at the conclusion of the,
"trial after entering the conviction, that question can be taken up for imposing the",
sentence.261. Simply because the provisions of section 75 of the Indian Penal Code are,
"attracted in a particular case, is no ground for inflicting the extreme punishment",
provided in that section. The provisions of this section are only permissive and not,
obligatory. They do confer jurisdiction on the Courts to inflict enhanced punishment but,
then that jurisdiction is to be exercised in a judicial manner after taking into,
"consideration the circumstances and the factors narrated above.262. Section 75, IPC,",
1860 does not prescribe that a severe sentence should be imposed for repetition of any,
crime by an offender. It does not prescribe a minimum sentence for any event. It does,
not say that a convict of a petty theft committed without any violence should be given a,
severe sentence if he had half a dozen previous convictions for like offences to his,
credit.263.,
[s 75.1] Clause (a).—,
For the application of this section it is not necessary to show that the previous,
sentence was for three years or upwards. What is required is that the previous,
"conviction was for an offence punishable under Chapter XII or XVII, for which sentence",
of imprisonment could have been three years or upwards. The key word being,
"""punishable"" the actual sentence awarded for the first offence is not of any",
consequence so long the offence was punishable with imprisonment for three years or,
upwards.264. It is also necessary to remember that the conviction for the earlier,
offence must remain in operation on the date of conviction for second offence. Thus if,
"the previous conviction is set aside on appeal, the accused cannot be awarded",
"enhanced punishment under this section.265. Non-applicability of section 75, IPC has",
"nothing to do with the proof or guilt of the main offence. If section 75, IPC is found to",
be inapplicable then it would not mean that the finding of guilt for certain offences,
recorded by the Magistrate will also go away. The conviction for the offences would,
stand and the accused would be liable to be sentenced for the main offence and the,
"sentence cannot be enhanced with the aid of section 75, IPC, 1860.266.",
[s 75.2] Section 75 and Section 236 of Cr PC.—,
Under section 236 (310 of old Code) of the Code of Criminal Procedure and under,
"section 75 of the Indian Penal Code, it is enough if the person concerned has been",
earlier convicted. It is not necessary that the sentence should be in force. Bearing in,
mind that section 75 of the IPC and section 236 (310 of old code) of the Code of,
Criminal Procedure deal with persons with previous conviction and the previous,
sentence need not necessarily be in force when the subsequent offence is committed–,
it would be clear that the latter section is intended to be applicable only to cases to,
which section 75 of the Indian Penal Code applies.267.,
"252. Subs. by Act 3 of 1910, section 2, for section 75.",
"253. The words ""British India"" have successively been subs. by the A.O. 1948, the A.O. 1950 and",
"Act 3 of 1951, sec. 3 and Sch (w.e.f. 1-4-1951), to read as above.",
"254. The word ""or"" omitted by Act 3 of 1951, section 3 and Sch (w.e.f. 1-4-1951).",
"255. Clause (b) omitted by Act 3 of 1951, section 3 and Sch (w.e.f. 1-4-1951).",
"256. Subs. by Act 26 of 1955, section 117 and Sch, for ""transportation for life"" (w.e.f. 1-1-1956).",
"257. Re Sugali Nage Naik, 1965 (1) Cr LJ 508 .",
"258. Manaklal Jhamaklal v State, 1966 Cr LJ 1139 (MP).",
"259. Re Kamya, AIR 1960 AP 490 [LNIND 1959 AP 115] : 1960 Cr LJ 1302 .",
"260. Jagdish v State of Rajasthan, 1991 Cr LJ 2989 (Raj).",
"261. State v Tampikannu, AIR 1970 Ker 251 [LNIND 1969 KER 110] .",
"262. Daulat Singh v The State of HP, 1981 Cr LJ 1347 (HP).",
"263. Kalarikkal Narayana Panicker Accused v State of Kerala, 1976 Cr LJ 410 .",
"264. Ghisulal v State of MP, 1977 Cr LJ 88 (MP).",
"265. Dilip Kumar Sharma, AIR 1976 SC 133 [LNIND 1975 SC 412] : 1976 Cr LJ 184 .",
"266. Jagdish v State of Rajasthan, 1991 Cr LJ 2989 (Raj).",
"267. Pratap v State of UP, AIR 1973 SC 786 [LNIND 1972 SC 595] : (1973) 3 SCC 690 [LNIND",
1972 SC 595] .,
THE INDIAN PENAL CODE,
CHAPTER III OF PUNISHMENTS,
252.[[s 75] Enhanced punishment for certain offences under Chapter XII or,
Chapter XVII after previous conviction.,
"Whoever, having been convicted, 1 —",
"(a) by a Court in 253.[India], of an offence punishable under Chapter XII or Chapter",
XVII of this Code with imprisonment of either description for a term of three,
"years or upwards, 254.[***]",
255. [***],
shall be guilty of any offence punishable under either of those Chapters with like,
"imprisonment for the like term, shall be subject for every such subsequent offence to",
"256.[imprisonment for life], or to imprisonment of either description for a term which",
may extend to ten years.],
COMMENT—,
Principle.—This section does not constitute a separate offence but only imposes a,
"liability to enhanced punishment. What section 75 IPC, 1860 contemplates is that",
"where a person who has been, previously convicted of an offence punishable under",
Chapter XII (which deals with offences relating to coin and Government stamps) or,
Chapter XVII. (which relates to offences against property) with imprisonment of either,
"description for a term of three years or up-wards, is once again found guilty of a similar",
"offence, he shall be liable to enhanced punishment which may extend to imprisonment",
for life or to imprisonment of either description for a term which may extend to ten,
years. The section is concerned with a previous conviction for a similar offence but it,
"does not postulate that in respect of the previous conviction, the punishment imposed",
should have been one of not less than three years. All that it posits is that the previous,
conviction should have been in respect of an offence punishable with a term of,
"imprisonment for a term of three years or upwards, but it does not lay down that the",
offender should have been actually punished with such a term of imprisonment.257. It,
does not apply to offences under other Acts.258.,
1. 'Having been convicted'.—A plain reading of this provision goes to show that the,
previous conviction ought to be for offence punishable under Chapter XII or Chapter,
XVII and the sentence imposed is three years or more than that. If the sentence is less,
than three years or the offence does not fall within any of the two Chapters then,
"section 75, IPC, 1860 would not be applicable. If any authority is required then",
"reference may be made to Re Kamya,259. wherein it has been held that the minimum",
"required for enhancement of punishment under section 75, IPC, 1860 is that the",
previous conviction of the accused should have resulted in punishment of three years,
or more.260. Section 75 is invoked for enhancement of the sentence and that can come,
only at the time the sentence is to be imposed. The fact that the accused is an old,
offender is not to be taken note of by the Court at the trial. Only at the conclusion of the,
"trial after entering the conviction, that question can be taken up for imposing the",
sentence.261. Simply because the provisions of section 75 of the Indian Penal Code are,
"attracted in a particular case, is no ground for inflicting the extreme punishment",
provided in that section. The provisions of this section are only permissive and not,
obligatory. They do confer jurisdiction on the Courts to inflict enhanced punishment but,
then that jurisdiction is to be exercised in a judicial manner after taking into,
"consideration the circumstances and the factors narrated above.262. Section 75, IPC,",
1860 does not prescribe that a severe sentence should be imposed for repetition of any,
crime by an offender. It does not prescribe a minimum sentence for any event. It does,
not say that a convict of a petty theft committed without any violence should be given a,
severe sentence if he had half a dozen previous convictions for like offences to his,
credit.263.,
[s 75.1] Clause (a).—,
For the application of this section it is not necessary to show that the previous,
sentence was for three years or upwards. What is required is that the previous,
"conviction was for an offence punishable under Chapter XII or XVII, for which sentence",
of imprisonment could have been three years or upwards. The key word being,
"""punishable"" the actual sentence awarded for the first offence is not of any",
consequence so long the offence was punishable with imprisonment for three years or,
upwards.264. It is also necessary to remember that the conviction for the earlier,
offence must remain in operation on the date of conviction for second offence. Thus if,
"the previous conviction is set aside on appeal, the accused cannot be awarded",
"enhanced punishment under this section.265. Non-applicability of section 75, IPC has",
"nothing to do with the proof or guilt of the main offence. If section 75, IPC is found to",
be inapplicable then it would not mean that the finding of guilt for certain offences,
recorded by the Magistrate will also go away. The conviction for the offences would,
stand and the accused would be liable to be sentenced for the main offence and the,
"sentence cannot be enhanced with the aid of section 75, IPC, 1860.266.",
[s 75.2] Section 75 and Section 236 of Cr PC.—,
Under section 236 (310 of old Code) of the Code of Criminal Procedure and under,
"section 75 of the Indian Penal Code, it is enough if the person concerned has been",
earlier convicted. It is not necessary that the sentence should be in force. Bearing in,
mind that section 75 of the IPC and section 236 (310 of old code) of the Code of,
Criminal Procedure deal with persons with previous conviction and the previous,
sentence need not necessarily be in force when the subsequent offence is committed–,
it would be clear that the latter section is intended to be applicable only to cases to,
which section 75 of the Indian Penal Code applies.267.,
"252. Subs. by Act 3 of 1910, section 2, for section 75.",
"253. The words ""British India"" have successively been subs. by the A.O. 1948, the A.O. 1950 and",
"Act 3 of 1951, sec. 3 and Sch (w.e.f. 1-4-1951), to read as above.",
"254. The word ""or"" omitted by Act 3 of 1951, section 3 and Sch (w.e.f. 1-4-1951).",
"255. Clause (b) omitted by Act 3 of 1951, section 3 and Sch (w.e.f. 1-4-1951).",
"256. Subs. by Act 26 of 1955, section 117 and Sch, for ""transportation for life"" (w.e.f. 1-1-1956).",
"257. Re Sugali Nage Naik, 1965 (1) Cr LJ 508 .",
"258. Manaklal Jhamaklal v State, 1966 Cr LJ 1139 (MP).",
"259. Re Kamya, AIR 1960 AP 490 [LNIND 1959 AP 115] : 1960 Cr LJ 1302 .",
"260. Jagdish v State of Rajasthan, 1991 Cr LJ 2989 (Raj).",
"261. State v Tampikannu, AIR 1970 Ker 251 [LNIND 1969 KER 110] .",
"262. Daulat Singh v The State of HP, 1981 Cr LJ 1347 (HP).",
"263. Kalarikkal Narayana Panicker Accused v State of Kerala, 1976 Cr LJ 410 .",
"264. Ghisulal v State of MP, 1977 Cr LJ 88 (MP).",
"265. Dilip Kumar Sharma, AIR 1976 SC 133 [LNIND 1975 SC 412] : 1976 Cr LJ 184 .",
"266. Jagdish v State of Rajasthan, 1991 Cr LJ 2989 (Raj).",
"267. Pratap v State of UP, AIR 1973 SC 786 [LNIND 1972 SC 595] : (1973) 3 SCC 690 [LNIND",
1972 SC 595] .,
THE INDIAN PENAL CODE,
CHAPTER IV GENERAL EXCEPTIONS,
THIS chapter has been framed in order to obviate the necessity of repeating in every,
penal clause a considerable number of limitations.,
The word 'offence' in this chapter denotes a thing punishable under the Code or under,
any special or local law when it satisfied the conditions laid down in section 40 of the,
Code.,
"The ""general exceptions"" contained in sections 76–106 make an offence a non-offence.",
"The ""general exceptions"" enacted by Indian Penal Code, 1860 (IPC, 1860) are of",
"universal application and for the sake of brevity of expression, instead of repeating in",
"every section that the definition is to be taken subject to the exceptions, the Legislature",
"by section 6 IPC, 1860 enacted that all the definitions must be regarded as subject to",
"the general exceptions. Therefore, general exceptions are part of definition of every",
"offence contained in IPC, 1860, but the burden to prove their existence lied on the",
accused.1.,
The following acts are exempted under the Code from criminal liability:—,
1. Act of a person bound by law to do a certain thing (section 76).,
2. Act of a Judge acting judicially (section 77).,
3. Act done pursuant to an order or a judgment of a Court (section 78).,
"4. Act of a person justified, or believing himself justified, by law (section 79).",
5. Act caused by accident (section 80).,
6. Act likely to cause harm done without criminal intent to prevent other harm,
(section 81).,
7. Act of a child under seven years (section 82).,
"8. Act of a child above seven and under 12 years, but of immature understanding",
(section 83).,
9. Act of a person of unsound mind (section 84).,
10. Act of an intoxicated person (section 85) and partially exempted (section 86).,
11. Act not known to be likely to cause death or grievous hurt done by consent of,
the sufferer (section 87).,
12. Act not intended to cause death done by consent of sufferer (section 88).,
13. Act done in good faith for the benefit of a child or an insane person by or by the,
consent of guardian (section 89).,
14. Act done in good faith for the benefit of a person without consent (section 92).,
15. Communication made in good faith to a person for his benefit (section 93).,
16. Act done under threat of death (section 94).,
17. Act causing slight harm (section 95).,
18. Act done in private defence (sections 96–106).,
"The above exceptions, strictly speaking, come within the following seven categories:—",
"1. Judicial acts (section. 77, 78).",
"2. Mistake of fact (sections 76, 79).",
3. Accident (section 80).,
"4. Absence of criminal intent (sections 81–86, 92–94).",
"5. Consent (sections 87, 90).",
6. Trifling acts (section 95).,
7. Private defence (sections 96–106).,
"Onus of proving exception lies on accused.—When a person is accused of any offence,",
the burden of proving the existence of circumstances bringing the case within any of,
"the general exceptions in the Penal Code, or within any special exception or proviso",
"contained in any other part of the same Code, or in any law defining the offence, is",
"upon him, and the Court shall presume the absence of such circumstances.2.",
Although the law lays down that the onus of proving circumstances which give the,
"benefit of a general exception to an accused person lies on him, and in the absence of",
"evidence the presumption is against the accused, this does not mean that the accused",
"must lead evidence. If it is apparent from the evidence on the record, whether produced",
"by the prosecution or by the defence, that a general exception would apply, then the",
presumption is removed and it is open to the Court to consider whether the evidence,
proves to its satisfaction that the accused comes within the exception.3.,
Applicability of General exceptions during investigation.—In considering that whether,
"accusation made in the complaint makes out a case for commission of offence or not,",
the police while reaching the prima facie satisfaction of suspecting the commission of,
"cognizable offence, cannot ignore the general exception as provided under IPC, 1860",
"as per Chapter IV of IPC, 1860. If on the basis of the allegation made in the complaint,",
"the case is falling in general exceptions, it can be said that the action cannot be termed",
as an offence.4. Investigating officer is bound to investigate and confirm that despite,
"what is contained in the ""General Exceptions""; acts committed by accused shall",
"constitute offence under IPC, 1860. This shall be done, by virtue of section 6 of IPC,",
"1860. In the light of section 6 of IPC, 1860, definition of every offence is to be",
"understood subject to the ""General Exceptions"". Therefore, investigation shall not",
confine merely to the acts committed by a person. Depending on facts and,
"circumstances of each case, many other relevant facts also have to be investigated",
"into, in the light of the provisions contained in ""General Exceptions"". It is only then that",
an investigating officer will be able to confirm whether the act committed by a person,
"is an offence or not, as defined in IPC, 1860 subject to what is contained in ""General",
"Exceptions"". Further, the category of self-defence falling in general exception would fall",
"in a different category than the general exceptions, which are provided in the very",
chapter for exercise of the statutory duty or lawful power either under the mistake of,
law or fact or mistaken belief of law or fact.5.,
"[s 76] Act done by a person bound, or by mistake of fact believing himself",
"bound, by law.",
"Nothing is an offence which is done by a person who is, or who by reason of a mistake",
"of fact 1 and not by reason of a mistake of law 2 in good faith believes himself to be,",
bound by law 3 to do it.,
ILLUSTRATIONS,
"(a) A, a soldier, fires on a mob by the order of his superior officer, in conformity with",
the commands of the law. A has committed no offence.,
"(b) A, an officer of a Court of Justice, being ordered by that Court to arrest Y, and,",
"after due enquiry, believing Z to be Y, arrests Z. A has committed no offence.",
COMMENT.—,
Sections 76 and 79 are based on the maxim ignorantia facti doth excusat and ignorantia,
"juris non excusat. Section 76 excuses a person who has done what by law is an offence,",
"under a misconception of facts, leading him to believe in good faith that he was",
"commanded by law to do it. See Comment on section 79, infra.",
"This section and sections 77, 78 and 79 deal with acts of a person bound or justified by",
law. This section as well as sections 78 and 79 deal with acts of a person under a,
mistake.,
"1. 'Mistake of fact'.—See Comment under section 79, infra.",
"2. 'Mistake of law'.—See Comment under section 79, infra.",
"3. 'In good faith believes himself to be, bound by law'.—In order to entitle a person to",
claim the benefit of this section it is necessary to show the existence of a state of facts,
"which would justify the belief in good faith, interpreting the latter expression with",
"reference to section 52, that the person to whom the order was given was bound by law",
"to obey it. Thus, in the case of a soldier, the Penal Code does not recognize the mere",
duty of blind obedience to the commands of a superior as sufficient to protect him,
from the penal consequences of his act. But in certain circumstances a soldier,
"receives absolute protection under section 132 of the Cr PC, 1973.",
"For illegal acts, however, neither the orders of a parent nor a master nor a superior will",
furnish any defence. Nothing but fear of instant death is a defence for a policeman who,
tortures anyone by order of a superior. The maxim respondeat superior has no,
application to such a case.6. The net position appears to be that if superior order is in,
conformity with the law no further question arises and the subordinate officer is,
"protected by section 76 IPC, 1860, if he carries out that order. It is only when the order",
is not in accordance with the law but the subordinate officer who carries out that order,
"in good faith, on account of a mistake of fact and not on ground of mistake of law,",
"believes himself to be bound by law to carry out such an order, that a further question",
arises as to whether the subordinate officer will not still get protection of section 76,
"IPC, 1860, because of his mistake of fact. Thus, where the order was legal in the",
"circumstances of the case, e.g., where the police patrol party opened fire under the",
order of the Deputy Commissioner of Police after it had been attacked on a dark night,
"and an Assistant Commissioner of Police had been injured as a result of such attack,",
"really no question arose for the application of section 76 IPC, 1860, as the order was",
both legal and justified by the circumstances of the case.7. The Indian law as contained,
in sections 76 and 79 of the Penal Code appears to be the same as in England. This,
"point has, however, not been clearly decided in any case including the decision of the",
"Supreme Court in Shew Mangal Singh's case.8. There are, however, enough indications",
"in Shew Mangal Singh's case and in sections 76 and 79 IPC, 1860, that if the",
subordinate due to a mistake of fact and not due to a mistake of law honestly believed,
that he was bound or justified by law in carrying out the superior order which though,
"not manifestly illegal was nevertheless illegal, perhaps he would still get the benefit of",
superior order. Obedience to an illegal order can only be used in mitigation of,
punishment but cannot be used as a complete defence.9. If on account of any,
"abnormal reaction, the employee has committed suicide, the conduct of the",
complainant or of higher officer of taking departmental action by way of resorting to,
"legal remedy or enforcement of law, cannot be termed as leaving no option to the",
"delinquent employee but to commit suicide and, therefore, cannot be said as abetment",
or incitement to suicide under such circumstances. In any case any action for resorting,
to legal remedy for grievances or for enforcement of law in exercise of powers or,
purported exercise of power cannot be said to contain any element of criminality,
"unless such action is ex facie without any competence, authority or jurisdiction.10.",
[s 76.1] Protection of private persons assisting police.—,
"Private persons who are bound to assist the police under section 42 of the Cr PC, 1973",
will be protected under this section.,
"1. Shankar Narayan Bhadolkar v State of Maharashtra, AIR 2004 SC 1966 [LNIND 2004 SC 1370] :",
2004 Cr LJ 1778 : (2005) 9 SCC 71 [LNIND 2004 SC 1370] .,
"2. The Indian Evidence Act, I of 1872, section 105.",
"3. Musammat Anandi, (1923) 45 All 329 ; Babulal, 1960 Cr LJ 437 (All).",
"4. A K Chaudhary v State of Gujarat, 2006 Cr LJ 726 (Guj).",
"5. A K Chaudhary v State of Gujarat, 2006 Cr LJ 726 (Guj).",
"6. Latifkhan v State, (1895) 20 Bom 394; Gurdit Singh, (1883) PR No. 16 of 1883.",
"7. State of WB v Shew Mangal Singh, 1981 Cr LJ 1683 : AIR 1981 SC 1917 [LNIND 1981 SC 355]",
: (1981) 4 SCC 2 [LNIND 1981 SC 355] .,
"8. Shew Mangal Singh, Supra.",
"9. Chaman Lal, (1940) 21 Lah 521.",
"10. A K Chaudhary v State of Gujarat, 2006 Cr LJ 726 (Guj).",
THE INDIAN PENAL CODE,
CHAPTER IV GENERAL EXCEPTIONS,
THIS chapter has been framed in order to obviate the necessity of repeating in every,
penal clause a considerable number of limitations.,
The word 'offence' in this chapter denotes a thing punishable under the Code or under,
any special or local law when it satisfied the conditions laid down in section 40 of the,
Code.,
"The ""general exceptions"" contained in sections 76–106 make an offence a non-offence.",
"The ""general exceptions"" enacted by Indian Penal Code, 1860 (IPC, 1860) are of",
"universal application and for the sake of brevity of expression, instead of repeating in",
"every section that the definition is to be taken subject to the exceptions, the Legislature",
"by section 6 IPC, 1860 enacted that all the definitions must be regarded as subject to",
"the general exceptions. Therefore, general exceptions are part of definition of every",
"offence contained in IPC, 1860, but the burden to prove their existence lied on the",
accused.1.,
The following acts are exempted under the Code from criminal liability:—,
1. Act of a person bound by law to do a certain thing (section 76).,
2. Act of a Judge acting judicially (section 77).,
3. Act done pursuant to an order or a judgment of a Court (section 78).,
"4. Act of a person justified, or believing himself justified, by law (section 79).",
5. Act caused by accident (section 80).,
6. Act likely to cause harm done without criminal intent to prevent other harm,
(section 81).,
7. Act of a child under seven years (section 82).,
"8. Act of a child above seven and under 12 years, but of immature understanding",
(section 83).,
9. Act of a person of unsound mind (section 84).,
10. Act of an intoxicated person (section 85) and partially exempted (section 86).,
11. Act not known to be likely to cause death or grievous hurt done by consent of,
the sufferer (section 87).,
12. Act not intended to cause death done by consent of sufferer (section 88).,
13. Act done in good faith for the benefit of a child or an insane person by or by the,
consent of guardian (section 89).,
14. Act done in good faith for the benefit of a person without consent (section 92).,
15. Communication made in good faith to a person for his benefit (section 93).,
16. Act done under threat of death (section 94).,
17. Act causing slight harm (section 95).,
18. Act done in private defence (sections 96–106).,
"The above exceptions, strictly speaking, come within the following seven categories:—",
"1. Judicial acts (section. 77, 78).",
"2. Mistake of fact (sections 76, 79).",
3. Accident (section 80).,
"4. Absence of criminal intent (sections 81–86, 92–94).",
"5. Consent (sections 87, 90).",
6. Trifling acts (section 95).,
7. Private defence (sections 96–106).,
"Onus of proving exception lies on accused.—When a person is accused of any offence,",
the burden of proving the existence of circumstances bringing the case within any of,
"the general exceptions in the Penal Code, or within any special exception or proviso",
"contained in any other part of the same Code, or in any law defining the offence, is",
"upon him, and the Court shall presume the absence of such circumstances.2.",
Although the law lays down that the onus of proving circumstances which give the,
"benefit of a general exception to an accused person lies on him, and in the absence of",
"evidence the presumption is against the accused, this does not mean that the accused",
"must lead evidence. If it is apparent from the evidence on the record, whether produced",
"by the prosecution or by the defence, that a general exception would apply, then the",
presumption is removed and it is open to the Court to consider whether the evidence,
proves to its satisfaction that the accused comes within the exception.3.,
Applicability of General exceptions during investigation.—In considering that whether,
"accusation made in the complaint makes out a case for commission of offence or not,",
the police while reaching the prima facie satisfaction of suspecting the commission of,
"cognizable offence, cannot ignore the general exception as provided under IPC, 1860",
"as per Chapter IV of IPC, 1860. If on the basis of the allegation made in the complaint,",
"the case is falling in general exceptions, it can be said that the action cannot be termed",
as an offence.4. Investigating officer is bound to investigate and confirm that despite,
"what is contained in the ""General Exceptions""; acts committed by accused shall",
"constitute offence under IPC, 1860. This shall be done, by virtue of section 6 of IPC,",
"1860. In the light of section 6 of IPC, 1860, definition of every offence is to be",
"understood subject to the ""General Exceptions"". Therefore, investigation shall not",
confine merely to the acts committed by a person. Depending on facts and,
"circumstances of each case, many other relevant facts also have to be investigated",
"into, in the light of the provisions contained in ""General Exceptions"". It is only then that",
an investigating officer will be able to confirm whether the act committed by a person,
"is an offence or not, as defined in IPC, 1860 subject to what is contained in ""General",
"Exceptions"". Further, the category of self-defence falling in general exception would fall",
"in a different category than the general exceptions, which are provided in the very",
chapter for exercise of the statutory duty or lawful power either under the mistake of,
law or fact or mistaken belief of law or fact.5.,
[s 77] Act of Judge when acting judicially.,
Nothing is an offence which is done by a Judge when acting judicially in the exercise,
"of any power which is, or which in good faith he believes to be, given to him by law.",
COMMENT.—,
Under this section a Judge is exempted not only in those cases in which he proceeds,
"irregularly in the exercise of a power which the law gives him, but also in cases where",
"he, in good faith, exceeds his jurisdiction and has no lawful powers. It protects judges",
"from criminal process just as the Judicial Officers Protection Act, 1850, saves them",
from civil suits. Judicial Officers' Protection Act affords protection to two broad,
categories of acts done or ordered to be done by a judicial officer in his judicial,
capacity. In the first category fall those acts which are within the limits of his,
jurisdiction. The second category encompasses those acts which may not be within,
"the jurisdiction of the judicial officer, but are, nevertheless, done or ordered to be done",
"by him, believing in good faith that he had jurisdiction to do them or order them to be",
done.11.,
"A Collector who exercises powers of enquiry and award under the Land Acquisition Act,",
1894 is not acting judicially because he is not a judge. He is not entitled to the,
protection of section 77.12. Regional Provident Fund Commissioner while passing order,
under section 7-A of 1952 Act is entitled to get protection as envisaged under section,
"77 of IPC, 1860 and section 3(1) of Judges (Protection) Act, 1985.13.",
"1. Shankar Narayan Bhadolkar v State of Maharashtra, AIR 2004 SC 1966 [LNIND 2004 SC 1370] :",
2004 Cr LJ 1778 : (2005) 9 SCC 71 [LNIND 2004 SC 1370] .,
"2. The Indian Evidence Act, I of 1872, section 105.",
"3. Musammat Anandi, (1923) 45 All 329 ; Babulal, 1960 Cr LJ 437 (All).",
"4. A K Chaudhary v State of Gujarat, 2006 Cr LJ 726 (Guj).",
"5. A K Chaudhary v State of Gujarat, 2006 Cr LJ 726 (Guj).",
"11. Rachapudi Subba Rao v Advocate General, (1981) 2 SCC 577 [LNIND 1980 SC 481] : AIR",
1981 SC 755 [LNIND 1980 SC 481] .,
"12. Surendera Kumar Bhatia v Kanhaiya Lal, (2009) 12 SCC 184 [LNIND 2009 SC 209] : AIR 2009",
SC 1961 [LNIND 2009 SC 209] .,
"13. E S Sanjeeva Rao v CBI, Mumbai, 2012 Cr LJ 4053 (Bom).",
THE INDIAN PENAL CODE,
CHAPTER IV GENERAL EXCEPTIONS,
THIS chapter has been framed in order to obviate the necessity of repeating in every,
penal clause a considerable number of limitations.,
The word 'offence' in this chapter denotes a thing punishable under the Code or under,
any special or local law when it satisfied the conditions laid down in section 40 of the,
Code.,
"The ""general exceptions"" contained in sections 76–106 make an offence a non-offence.",
"The ""general exceptions"" enacted by Indian Penal Code, 1860 (IPC, 1860) are of",
"universal application and for the sake of brevity of expression, instead of repeating in",
"every section that the definition is to be taken subject to the exceptions, the Legislature",
"by section 6 IPC, 1860 enacted that all the definitions must be regarded as subject to",
"the general exceptions. Therefore, general exceptions are part of definition of every",
"offence contained in IPC, 1860, but the burden to prove their existence lied on the",
accused.1.,
The following acts are exempted under the Code from criminal liability:—,
1. Act of a person bound by law to do a certain thing (section 76).,
2. Act of a Judge acting judicially (section 77).,
3. Act done pursuant to an order or a judgment of a Court (section 78).,
"4. Act of a person justified, or believing himself justified, by law (section 79).",
5. Act caused by accident (section 80).,
6. Act likely to cause harm done without criminal intent to prevent other harm,
(section 81).,
7. Act of a child under seven years (section 82).,
"8. Act of a child above seven and under 12 years, but of immature understanding",
(section 83).,
9. Act of a person of unsound mind (section 84).,
10. Act of an intoxicated person (section 85) and partially exempted (section 86).,
11. Act not known to be likely to cause death or grievous hurt done by consent of,
the sufferer (section 87).,
12. Act not intended to cause death done by consent of sufferer (section 88).,
13. Act done in good faith for the benefit of a child or an insane person by or by the,
consent of guardian (section 89).,
14. Act done in good faith for the benefit of a person without consent (section 92).,
15. Communication made in good faith to a person for his benefit (section 93).,
16. Act done under threat of death (section 94).,
17. Act causing slight harm (section 95).,
18. Act done in private defence (sections 96–106).,
"The above exceptions, strictly speaking, come within the following seven categories:—",
"1. Judicial acts (section. 77, 78).",
"2. Mistake of fact (sections 76, 79).",
3. Accident (section 80).,
"4. Absence of criminal intent (sections 81–86, 92–94).",
"5. Consent (sections 87, 90).",
6. Trifling acts (section 95).,
7. Private defence (sections 96–106).,
"Onus of proving exception lies on accused.—When a person is accused of any offence,",
the burden of proving the existence of circumstances bringing the case within any of,
"the general exceptions in the Penal Code, or within any special exception or proviso",
"contained in any other part of the same Code, or in any law defining the offence, is",
"upon him, and the Court shall presume the absence of such circumstances.2.",
Although the law lays down that the onus of proving circumstances which give the,
"benefit of a general exception to an accused person lies on him, and in the absence of",
"evidence the presumption is against the accused, this does not mean that the accused",
"must lead evidence. If it is apparent from the evidence on the record, whether produced",
"by the prosecution or by the defence, that a general exception would apply, then the",
presumption is removed and it is open to the Court to consider whether the evidence,
proves to its satisfaction that the accused comes within the exception.3.,
Applicability of General exceptions during investigation.—In considering that whether,
"accusation made in the complaint makes out a case for commission of offence or not,",
the police while reaching the prima facie satisfaction of suspecting the commission of,
"cognizable offence, cannot ignore the general exception as provided under IPC, 1860",
"as per Chapter IV of IPC, 1860. If on the basis of the allegation made in the complaint,",
"the case is falling in general exceptions, it can be said that the action cannot be termed",
as an offence.4. Investigating officer is bound to investigate and confirm that despite,
"what is contained in the ""General Exceptions""; acts committed by accused shall",
"constitute offence under IPC, 1860. This shall be done, by virtue of section 6 of IPC,",
"1860. In the light of section 6 of IPC, 1860, definition of every offence is to be",
"understood subject to the ""General Exceptions"". Therefore, investigation shall not",
confine merely to the acts committed by a person. Depending on facts and,
"circumstances of each case, many other relevant facts also have to be investigated",
"into, in the light of the provisions contained in ""General Exceptions"". It is only then that",
an investigating officer will be able to confirm whether the act committed by a person,
"is an offence or not, as defined in IPC, 1860 subject to what is contained in ""General",
"Exceptions"". Further, the category of self-defence falling in general exception would fall",
"in a different category than the general exceptions, which are provided in the very",
chapter for exercise of the statutory duty or lawful power either under the mistake of,
law or fact or mistaken belief of law or fact.5.,
[s 78] Act done pursuant to the judgment or order of Court.,
"Nothing which is done in pursuance of, or which is warranted by the judgment or order",
"of, a Court of Justice; if done whilst such judgment or order remains in force, is an",
"offence, notwithstanding the Court may have had no jurisdiction to pass such",
"judgment or order, provided the person doing the act in good faith believes that the",
Court had such jurisdiction.,
COMMENT.—,
This section is merely a corollary to section 77. It affords protection to officers acting,
"under the authority of a judgment, or order of a Court of Justice. It differs from section",
"77 on the question of jurisdiction. Here, the officer is protected in carrying out an order",
"of a Court which may have no jurisdiction at all, if he believed that the Court had",
jurisdiction; whereas under section 77 the Judge must be acting within his jurisdiction,
to be protected by it.,
Mistake of law can be pleaded as a defence under this section.,
"1. Shankar Narayan Bhadolkar v State of Maharashtra, AIR 2004 SC 1966 [LNIND 2004 SC 1370] :",
2004 Cr LJ 1778 : (2005) 9 SCC 71 [LNIND 2004 SC 1370] .,
"2. The Indian Evidence Act, I of 1872, section 105.",
"3. Musammat Anandi, (1923) 45 All 329 ; Babulal, 1960 Cr LJ 437 (All).",
"4. A K Chaudhary v State of Gujarat, 2006 Cr LJ 726 (Guj).",
"5. A K Chaudhary v State of Gujarat, 2006 Cr LJ 726 (Guj).",
THE INDIAN PENAL CODE,
CHAPTER IV GENERAL EXCEPTIONS,
THIS chapter has been framed in order to obviate the necessity of repeating in every,
penal clause a considerable number of limitations.,
The word 'offence' in this chapter denotes a thing punishable under the Code or under,
any special or local law when it satisfied the conditions laid down in section 40 of the,
Code.,
"The ""general exceptions"" contained in sections 76–106 make an offence a non-offence.",
"The ""general exceptions"" enacted by Indian Penal Code, 1860 (IPC, 1860) are of",
"universal application and for the sake of brevity of expression, instead of repeating in",
"every section that the definition is to be taken subject to the exceptions, the Legislature",
"by section 6 IPC, 1860 enacted that all the definitions must be regarded as subject to",
"the general exceptions. Therefore, general exceptions are part of definition of every",
"offence contained in IPC, 1860, but the burden to prove their existence lied on the",
accused.1.,
The following acts are exempted under the Code from criminal liability:—,
1. Act of a person bound by law to do a certain thing (section 76).,
2. Act of a Judge acting judicially (section 77).,
3. Act done pursuant to an order or a judgment of a Court (section 78).,
"4. Act of a person justified, or believing himself justified, by law (section 79).",
5. Act caused by accident (section 80).,
6. Act likely to cause harm done without criminal intent to prevent other harm,
(section 81).,
7. Act of a child under seven years (section 82).,
"8. Act of a child above seven and under 12 years, but of immature understanding",
(section 83).,
9. Act of a person of unsound mind (section 84).,
10. Act of an intoxicated person (section 85) and partially exempted (section 86).,
11. Act not known to be likely to cause death or grievous hurt done by consent of,
the sufferer (section 87).,
12. Act not intended to cause death done by consent of sufferer (section 88).,
13. Act done in good faith for the benefit of a child or an insane person by or by the,
consent of guardian (section 89).,
14. Act done in good faith for the benefit of a person without consent (section 92).,
15. Communication made in good faith to a person for his benefit (section 93).,
16. Act done under threat of death (section 94).,
17. Act causing slight harm (section 95).,
18. Act done in private defence (sections 96–106).,
"The above exceptions, strictly speaking, come within the following seven categories:—",
"1. Judicial acts (section. 77, 78).",
"2. Mistake of fact (sections 76, 79).",
3. Accident (section 80).,
"4. Absence of criminal intent (sections 81–86, 92–94).",
"5. Consent (sections 87, 90).",
6. Trifling acts (section 95).,
7. Private defence (sections 96–106).,
"Onus of proving exception lies on accused.—When a person is accused of any offence,",
the burden of proving the existence of circumstances bringing the case within any of,
"the general exceptions in the Penal Code, or within any special exception or proviso",
"contained in any other part of the same Code, or in any law defining the offence, is",
"upon him, and the Court shall presume the absence of such circumstances.2.",
Although the law lays down that the onus of proving circumstances which give the,
"benefit of a general exception to an accused person lies on him, and in the absence of",
"evidence the presumption is against the accused, this does not mean that the accused",
"must lead evidence. If it is apparent from the evidence on the record, whether produced",
"by the prosecution or by the defence, that a general exception would apply, then the",
presumption is removed and it is open to the Court to consider whether the evidence,
proves to its satisfaction that the accused comes within the exception.3.,
Applicability of General exceptions during investigation.—In considering that whether,
"accusation made in the complaint makes out a case for commission of offence or not,",
the police while reaching the prima facie satisfaction of suspecting the commission of,
"cognizable offence, cannot ignore the general exception as provided under IPC, 1860",
"as per Chapter IV of IPC, 1860. If on the basis of the allegation made in the complaint,",
"the case is falling in general exceptions, it can be said that the action cannot be termed",
as an offence.4. Investigating officer is bound to investigate and confirm that despite,
"what is contained in the ""General Exceptions""; acts committed by accused shall",
"constitute offence under IPC, 1860. This shall be done, by virtue of section 6 of IPC,",
"1860. In the light of section 6 of IPC, 1860, definition of every offence is to be",
"understood subject to the ""General Exceptions"". Therefore, investigation shall not",
confine merely to the acts committed by a person. Depending on facts and,
"circumstances of each case, many other relevant facts also have to be investigated",
"into, in the light of the provisions contained in ""General Exceptions"". It is only then that",
an investigating officer will be able to confirm whether the act committed by a person,
"is an offence or not, as defined in IPC, 1860 subject to what is contained in ""General",
"Exceptions"". Further, the category of self-defence falling in general exception would fall",
"in a different category than the general exceptions, which are provided in the very",
chapter for exercise of the statutory duty or lawful power either under the mistake of,
law or fact or mistaken belief of law or fact.5.,
[s 79] Act done by a person justified or by mistake of fact believing himself,
"justified, by law.",
"Nothing is an offence which is done by any person who is justified by law1, or who by",
"reason of a mistake of fact2 and not by reason of a mistake of law3 in good faith,",
"believes himself to be justified by law, in doing it.",
ILLUSTRATION,
"A sees Z commit what appears to A to be a murder. A, in the exercise, to the best of his",
"judgment exerted in good faith, of the power which the law gives to all persons of",
"apprehending murderers in the fact, seizes Z, in order to bring Z before the proper",
"authorities. A has committed no offence, though it may turn out that Z was acting in",
self-defence.,
COMMENT.—,
Distinction between Sections 76 and 79.—The distinction between section 76 and this,
"section is that in the former a person is assumed to be bound, and in the latter to be",
"justified, by law; in other words, the distinction is between a real or supposed legal",
"obligation and a real or supposed legal justification, in doing the particular act. Under",
"both (these sections) there must be a bona fide intention to advance the law,",
manifested by the circumstances attending the act which is the subject of charge; and,
"the party accused cannot allege generally that he had a good motive, but must allege",
specifically that he believed in good faith that he was bound by law (section 76) to do,
"as he did, or that being empowered by law (section 79) to act in the matter, he had",
acted to the best of his judgment exerted in good faith.14.,
"1. Any person who is justified by law.—Jurisprudentially viewed, an act may be an",
"offence, definitionally speaking but a forbidden act may not spell inevitable guilt if the",
law itself declares that in certain special circumstances it is not to be regarded as an,
offence. The chapter on General Exceptions operates in this province. Section 79,
makes an offence a non-offence. When? Only when the offending act is actually,
justified by law or is bona fide believed by mistake of fact to be so justified.15. It is easy,
"to see that if the act complained of is wholly justified by law, it would not amount to an",
"offence at all in view of the provisions of section 79 of the IPC, 1860. Many cases may",
however arise wherein acting under the provisions of the Police Act or other law,
"conferring powers on the police, the police officer or some other person may go beyond",
"what is strictly justified in law. Though section 79 of the IPC, 1860 will have no",
"application to such cases, section 53 of the Police Act will apply. But section 53 applies",
"to only a limited class of persons. So, it becomes the task of the Court, whenever any",
question whether this section applies or not arises to bestow particular care on its,
"decision. In doing this it has to ascertain first, what act is complained of and then to",
"examine, if there is any provision of the Police Act or other law conferring powers on",
"the police, under which it may be said to have been done or intended to be done. The",
"Court has to remember in this connection that an act is not ""under"" a provision of law",
merely because the point of time at which it is done coincides with the point of time,
when some act is done in the exercise of the powers granted by the provision or in,
"performance of the duty imposed by it. To be able to say that an act is done ""under"" a",
"provision of law, one must discover the existence of a reasonable relationship between",
the provisions and the act. In the absence of such a relation the act cannot be said to,
"be done ""under"" the particular provision of law.16. But unless there is a reasonable",
"connection between the act complained of and the powers and duties of the office, it",
cannot be said that the act was done by the accused officer under the colour of his,
"office.17. In Bhanuprasad Hariprasad Dave's case,18. wherein the allegations against the",
police officer was of taking advantage of his position and attempting to coerce a,
person to give him a bribe. The plea of colour of duty was negatived by the Supreme,
"Court. In Prof. Sumer Chand v UOI, 1994 (1) SCC 64 [LNIND 1993 SC 665] Supreme",
Court on facts endorsed the opinion of the High Court that the act of the Police Officer,
complained of fell within the description of `colour of duty'. The argument is irresistible,
"that if the performance of the act which constitutes the offence is justified by law, i.e.,",
"by some other provision, then section 79 exonerates the doer because the act ceases",
"to be an offence. Likewise, if the act were done by one 'who by reason of a mistake of",
"fact in good faith believes himself to be justified by law in doing it' then also, the",
"exception operates and the bona fide belief, although mistaken, eliminates the",
culpability. If the offender can irrefutably establish that he is actually justified by law in,
"doing the act or, alternatively, that he entertained a mistake of fact and in good faith",
"believed that he was justified by law in committing the act, then, the weapon of section",
79 demolishes the prosecution.19.,
"2. 'Mistake of fact'.—Under this section, although an act may not be justified by law, yet",
"if it is done under a mistake of fact, in the belief in good faith that it is justified by law it",
will not be an offence. Such cases are not uncommon where the Courts in the facts,
and circumstances of the particular case have exonerated the accused under section,
"79 on the ground of having acted in good faith under the belief, owing to a mistake of",
fact that he was justified in doing the act which constituted an offence. As laid down in,
"section 52 of the IPC, 1860, nothing is said to be done or believed in good faith which is",
done or believed without due care and attention. The question of good faith must be,
considered with reference to the position of the accused and the circumstances under,
which he acted. 'Good faith' requires not logical infallibility but due care and attention.,
The question of good faith is always a question of fact to be determined in accordance,
with the proved facts and circumstances of each case.20.,
"'Mistake' is not mere forgetfulness.21. It is a slip ""made, not by design, but by",
"mischance.""22. Under sections 76 and 79 a mistake must be one of fact and not of law.",
"At common law an honest and reasonable belief in the existence of circumstances,",
"which, if true, would make the act for which a prisoner is indicted an innocent act has",
always been held to be a good defence. Honest and reasonable mistake stands in fact,
"on the same footing as absence of the reasoning faculty, as in infancy, or perversion of",
"that faculty, as in lunacy.23. It may be laid down as a general rule that an alleged",
offender is deemed to have acted under that state of facts which he in good faith and,
on reasonable grounds believed to exist when he did the act alleged to be an,
"offence.24. Ignorantia facti doth excusat, for such ignorance many times makes the act",
"itself morally involuntary.25. Where a man made a thrust with a sword at a place where,",
"upon reasonable grounds, he supposed a burglar to be, and killed a person who was",
"not a burglar, it was held that he had committed no offence.26. In other words, he was",
in the same situation as far as regards the homicide as if he had killed a burglar. The,
accused while guarding his maize field shot an arrow at a moving object in the bona,
fide belief that it was a bear and in the process caused the death of a man who was,
hiding there. It was held that he could not be held liable for murder as his case was,
"fully covered by section 79 as well as section 80 IPC, 1860.27. Similarly, where the",
accused while helping the police stopped a cart which they in good faith believed to be,
"carrying smuggled rice but ultimately their suspicion proved to be incorrect, it was held",
that they could not be prosecuted for wrongful restraint under section 341 as their case,
"was covered by section 79 IPC, 1860.28. Section 79 makes an offence a non-offence.",
"Thus, where the Board of Censors, acting within their jurisdiction and on an application",
"made and pursued in good faith sanctions the public exhibition of a film, the producer",
and the connected agencies do enter the statutory harbour and are protected from,
"prosecution under section 292 IPC, 1860, because section 79 of the Code exonerates",
them at least in view of their bona fide belief that the certificate is justificatory.29.,
3. 'Mistake of law'.—Mistake in point of law in a criminal case is no defence. Mistake of,
law ordinarily means mistake as to the existence or otherwise of any law on a relevant,
subject as well as mistake as to what the law is.30.,
"Ignorance of the municipal law of the Kingdom, or of the penalty thereby inflicted upon",
"offenders, doth not excuse any, that is of the age of discretion and compos mentis, from the",
penalty of the breach of it; because every person of the age of discretion and compos,
"mentis is bound to know the law, and presumed so to do.31.",
If any individual should infringe the statute law of the country through ignorance or,
"carelessness, he must abide by the consequences of his error; it is not competent to",
"him to aver in a Court of Justice that he was ignorant of the law of the land, and no",
Court of Justice is at liberty to receive such a plea.32.,
"The maxim ignorantia juris non excusat, in its application to criminal offences, admits of",
"no exception, not even in the case of a foreigner who cannot reasonably be supposed",
in fact to know the law of the land.33. The legal presumption that everyone knows the,
law of the land is often untrue as a matter of fact. But then why such a presumption,
subsists? The reason for this seems to be nothing but expediency; otherwise there is,
no knowing of the extent to which the excuse of ignorance of law might be carried.,
"Indeed, it might be urged almost in every case.34. This rule of expediency has been put",
to use even in a case where the accused could not have possibly known the law in the,
"circumstances in which he was placed. Thus, a person who was on the high seas and",
as such could not have been cognizant of a recently passed law might be convicted for,
contravening it.35.,
Whenever the question of justification of an offence either due to mistake of fact or,
"mistake of law arises, the guiding rules are: (1) that when an act is in itself plainly",
"criminal, and is more severely punishable if certain circumstances co-exist, ignorance",
of the existence of such circumstances is no answer to a charge for the aggravated,
"offence. (2) That where an act is prima facie innocent and proper, unless certain",
"circumstances co-exist, then ignorance of such circumstances is an answer to the",
charge. (3) That the state of the defendant's mind must amount to absolute ignorance,
"of the existence of the circumstance which alters the character of the act, or to a belief",
"in its non-existence. (4) Where an act which is in itself wrong is, under certain",
"circumstances, criminal, a person who does the wrong act cannot set up as a defence",
that he was ignorant of the facts which turned the wrong into a crime. (5) Where a,
"statute makes it penal to do an act under certain circumstances, it is a question upon",
"the wording and object of the particular statute, whether the responsibility of",
ascertaining that the circumstances exist is thrown upon the person who does the act,
or not. In the former case his knowledge is immaterial.36.,
[s 79.1] Ignorance of statute newly passed.—,
Although a person commits an act which is made an offence for the first time by a,
statute so recently passed as to render it impossible that any notice of the passing of,
"the statute could have reached the place where the offence has been committed, yet",
his ignorance of the statute will not save him from punishment.37. For an Indian law to,
"operate and be effective in the territory where it operates namely, the territory of India, it",
"is not necessary that it should either be published, or be made known outside the",
country.38.,
[s 79.2] Act of State.—,
An act of State is an act injurious to the person or to the property of some person who,
is not at the time of that act a subject of the Government; which act is done by any,
"representative of the Government's authority, civil or military, and is either previously",
sanctioned or subsequently ratified by the Government. The doctrine as to acts of State,
"can apply only to acts which affect foreigners, and which are done by the orders or with",
the ratification of the Government. As between the State and its subjects there can be,
no such thing as an act of State. Courts of law are established for the express purpose,
of limiting public authority in its conduct towards individuals.,
Persons carrying out an act of State under proper orders will be protected by the Penal,
"Code, in the same way as if they were carrying out a lawful order under the municipal",
law. To support a plea of this nature two things are essential:—,
(1) that the defendant had authority to act on behalf of the State in the matter; and,
"(2) that in so acting, he was professing to act as a matter of policy, outside the law,",
and not as a matter of right within the law.,
[s 79.3] Protection of private persons.—,
"Private persons acting under sections 38, 43, 72 and 73 of the Cr PC, 1973 will be",
protected under this section.,
[s 79.4] Fake Encounters. —,
Unprovoked firing by appellants who were police officials caused death of two persons,
and grievous gun-shot injuries to another person. Seven police officers admitted firing,
into the vehicle. But the defence case was that they had done so only on the direction,
"of ACP, a superior officer. The Supreme Court held that it cannot, by any stretch of",
"imagination, be claimed by anybody that a case of murder would fall within the",
expression 'colour of duty'.39.,
[s 79.5] CASES.—Mistake of fact.—,
Good Defence.—Where an accused owing to a defect in his vision and the effect of a,
fall bona fide believed that his son of whom he was very fond was a tiger and caused,
"fatal injuries to him with an axe in a moment of delusion, he was protected under this",
"section, and his act being done under a bona fide mistake, he could not be convicted of",
"an offence of murder.40. Once the Board of Censors, acting within their jurisdiction and",
"on an application made and pursued in good faith, sanctions the public exhibition of a",
"film, the producer and connected agencies enter the statutory harbour and are",
protected because section 79 exonerates them in view of the bona fide belief that the,
certificate is justificatory.41.,
[s 79.6] English case.—,
"The accused was convicted of bigamy, having gone through the ceremony of marriage",
within seven years after she had been deserted by her husband. She believed in good,
faith and on reasonable grounds that her husband was dead. It was held that a bona,
fide belief on reasonable grounds in the death of the husband at the time of the second,
"marriage afforded a good defence to the indictment, and that the conviction was",
wrong.42. Where the question was whether the accused was to be held liable for,
injuring a person whom he thought was belabouring another when in fact he was only,
"trying to immobilise a person who had attempted to rob a woman, the Court said that if",
W was labouring under a mistake of fact as to the circumstances when he committed,
"the alleged offence, he was to be judged according to his mistaken view of the facts",
regardless of whether his mistake was reasonable or unreasonable. The,
reasonableness or otherwise of the belief was only material to the question of whether,
the belief was in fact held by the defendant at all.43.,
[s 79.7] Bad defence.—,
Deceased attempted to steal coconut from the garden of which accused was a,
"watchman. Accused contended that, he while discharging his duties as a watchman in",
good faith and under mistake of fact inflicted an injury which unfortunately resulted in,
"the death of the victim. Explaining the applicability of section 79, Supreme Court held",
that there was no mistake of fact which could even if existed or found true could,
"warrant or justify in law, the imposition of such a serious injury as found inflicted on the",
victim.44. A police-officer saw a horse tied up in B's premises and because it happened,
"to resemble one which his father had lost a short time previously, he jumped at once to",
"the conclusion that B had either stolen the horse himself, or purchased it from the thief,",
and compelled B to account for his possession. The officer found that B had bought,
"the animal from one S; so he sent for S, charged him with the theft, and compelled him",
to give bail whilst an investigation was pending. The officer never sent for the,
"supposed owner of the horse, or took the trouble of getting any credible information as",
to whether it was his father's horse or not. It was held that the police-officer had not,
"acted in good faith, that is, with due care and attention and that this section did not",
protect him.45. The accused struck a person with a full force lathi blow thinking that he,
was a thief and he had to do so to safeguard his property. The incident took place,
outside the house near a pond. The place was away from the house. There being no,
occasion for private defence of property and the blow being given on the head with,
"severity, it was held that the accused was liable to be convicted under section 304 Part",
II. He was sentenced to three years RI.46.,
[s 79.8] English case.—,
"The accused took an unmarried girl under the age of 16 years out of the possession,",
"and against the will, of her father. The defence of the accused was that he was bona",
fide and reasonably believed that the girl was older than 16. It was held that the taking,
of the girl was unlawful the defence was bad.47. This case may be distinguished from,
"Tolson's case, in which a woman married believing her husband to be dead. There the",
"conduct of the woman was not in the smallest degree immoral, but was, on the other",
"hand, perfectly natural and legitimate.",
"1. Shankar Narayan Bhadolkar v State of Maharashtra, AIR 2004 SC 1966 [LNIND 2004 SC 1370] :",
2004 Cr LJ 1778 : (2005) 9 SCC 71 [LNIND 2004 SC 1370] .,
"2. The Indian Evidence Act, I of 1872, section 105.",
"3. Musammat Anandi, (1923) 45 All 329 ; Babulal, 1960 Cr LJ 437 (All).",
"4. A K Chaudhary v State of Gujarat, 2006 Cr LJ 726 (Guj).",
"5. A K Chaudhary v State of Gujarat, 2006 Cr LJ 726 (Guj).",
"14. 1st Rep. section 114, p 219.",
"15. Raj Kapoor v Laxman, AIR 1980 SC 605 [LNIND 1979 SC 492] : (1980) 2 SCC 175 [LNIND",
1979 SC 492] : 1980 (2) SCR 512 [LNIND 1979 SC 492] : 1980 Cr LJ 436 ; Jayantilal K Katakia v P,
"Govindan Nair, AIR 1981 SC 1196 : (1981) 2 SCC 423 .",
"16. State of AP v N Venugopal, AIR 1964 SC 33 [LNIND 1963 SC 159] .",
"17. State of Maharashtra v Narhar Rao, AIR 1966 SC 1783 [LNIND 1966 SC 85] ; State of",
"Maharashtra v Atma Ram, AIR 1966 SC 1786 [LNIND 1978 SC 193] .",
"18. Bhanuprasad Hariprasad Dave v State of Gujarat, AIR 1968 SC 1323 [LNIND 1968 SC 119] .",
"19. Raj Kapoor v Laxman, AIR 1980 SC 605 [LNIND 1979 SC 492] : (1980) 2 SCC 175 [LNIND",
1979 SC 492] : 1980 (2) SCR 512 [LNIND 1979 SC 492] : 1980 Cr LJ 436 .,
"20. State of Orissa v Bhagaban Barik, AIR 1987 SC 1265 [LNIND 1987 SC 366] : (1987) 2 SCC",
498 [LNIND 1987 SC 366] .,
"21. Per Lord Esher, MR, in Barrow v Isaacs, (1891) 1 QB 417 , 420.",
"22. Per Lord Russell, CJ, in Sandford v Beal, (1899) 65 LJQB 73 , 74, 73 LT 406.",
"23. Per Cave, J, in Tolson, (1889) 23 QBD 168 , 181.",
"24. Per Stephen, J, in Ibid., p 188.",
"25. 1 Hale PC pp 42, 43.",
"26. Levett, (1839) Cro Car 538.",
"27. State of Orissa v Khora Ghasi, 1978 Cr LJ 1305 (Ori).",
"28. Keso Sahu v Saligram, 1977 Cr LJ 1725 (Ori).",
"29. Rajkapoor v Laxman, 1980 Cr LJ 436 : AIR 1980 SC 605 [LNIND 1979 SC 492] .",
"30. Tustipada Mandal, (1950) Cut 75.",
31. 1 Hale PC 42.,
"32. Fischer, (1891) 14 Mad 342, 354, FB.",
"33. Esop, (1836) 7 C & P 456.",
"34. Bilbie v Lumley, (1802) 2 East 469.",
"35. Bailey v Bailey, (1800) Russ & Ry 1; C & J cases, see also State of Maharashtra v MH George,",
1965 (1) Cr LJ 641 : AIR 1965 SC 722 [LNIND 1964 SC 208] .,
"36. Tustipada Mandal, (1950) Cut. 75.",
"37. Bailey's Case, (1800) Russ. & Ry 1.",
"38. Mayer Hans George, (1964) 67 Bom LR, 583 : AIR 1965 SC 722 [LNIND 1964 SC 208] : (1965)",
1 Cr LJ 641 .,
"39. Satyavir Singh Rathi v State Thr. CBI, AIR 2011 SC 1748 [LNIND 2011 SC 475] : (2011) 6 SCC",
1 [LNIND 2011 SC 475] : 2011 Cr LJ 2908 : (2011) 2 SCC(Cr) 782 : (2011) 6 SCR 138 [LNIND,
2011 SC 475] .,
"40. Chirangi, (1952) Nag 348.",
"41. Raj Kapoor v Laxman, AIR 1980 SC 605 [LNIND 1979 SC 492] : (1980) 2 SCC 175 [LNIND",
1979 SC 492] : 1980 (2) SCR 512 [LNIND 1979 SC 492] : 1980 Cr LJ 436 .,
"42. Tolson, (1889) 23 QBD 168 .",
"43. R. v Williams, (1987) 3 All ER 411 Ch, following dictum of LAWTON LJ in R. v Kimber, (1983)",
"1 All ER 320 . See also Beckford v R, (1987) 3 All ER 425 PC, where the same test was applied in",
"a situation in which a person acted in self defence under a mistaken, but honestly held belief,",
that the person whom he shot dead was a dangerous gunman.,
"44. Pitchai v State, (2004) 13 SCC 579 : (2006) 1 SCC(Cr) 505 See also Nagraj v State of Mysore,",
AIR 1964 SC 269 [LNIND 1963 SC 153] : 1964 (3) SCR 671 [LNIND 1963 SC 153] : 1964 Cr LJ,
161 .,
"45. Sheo Surun Sahai v. Mohomed Fazil Khan, (1868) 10 WR (Cr) 20.",
"46. State of Orissa v Bhagbhan Barik, (1987) 2 SCC 498 [LNIND 1987 SC 366] : AIR 1987 SC",
"1265 [LNIND 1987 SC 366] : 1987 Cr LJ 1115 . The Court relied on Russel On Crimes, 76 (vol 1).",
"47. Prince, (1875) LR 2 CCR 154.",
THE INDIAN PENAL CODE,
CHAPTER IV GENERAL EXCEPTIONS,
THIS chapter has been framed in order to obviate the necessity of repeating in every,
penal clause a considerable number of limitations.,
The word 'offence' in this chapter denotes a thing punishable under the Code or under,
any special or local law when it satisfied the conditions laid down in section 40 of the,
Code.,
"The ""general exceptions"" contained in sections 76–106 make an offence a non-offence.",
"The ""general exceptions"" enacted by Indian Penal Code, 1860 (IPC, 1860) are of",
"universal application and for the sake of brevity of expression, instead of repeating in",
"every section that the definition is to be taken subject to the exceptions, the Legislature",
"by section 6 IPC, 1860 enacted that all the definitions must be regarded as subject to",
"the general exceptions. Therefore, general exceptions are part of definition of every",
"offence contained in IPC, 1860, but the burden to prove their existence lied on the",
accused.1.,
The following acts are exempted under the Code from criminal liability:—,
1. Act of a person bound by law to do a certain thing (section 76).,
2. Act of a Judge acting judicially (section 77).,
3. Act done pursuant to an order or a judgment of a Court (section 78).,
"4. Act of a person justified, or believing himself justified, by law (section 79).",
5. Act caused by accident (section 80).,
6. Act likely to cause harm done without criminal intent to prevent other harm,
(section 81).,
7. Act of a child under seven years (section 82).,
"8. Act of a child above seven and under 12 years, but of immature understanding",
(section 83).,
9. Act of a person of unsound mind (section 84).,
10. Act of an intoxicated person (section 85) and partially exempted (section 86).,
11. Act not known to be likely to cause death or grievous hurt done by consent of,
the sufferer (section 87).,
12. Act not intended to cause death done by consent of sufferer (section 88).,
13. Act done in good faith for the benefit of a child or an insane person by or by the,
consent of guardian (section 89).,
14. Act done in good faith for the benefit of a person without consent (section 92).,
15. Communication made in good faith to a person for his benefit (section 93).,
16. Act done under threat of death (section 94).,
17. Act causing slight harm (section 95).,
18. Act done in private defence (sections 96–106).,
"The above exceptions, strictly speaking, come within the following seven categories:—",
"1. Judicial acts (section. 77, 78).",
"2. Mistake of fact (sections 76, 79).",
3. Accident (section 80).,
"4. Absence of criminal intent (sections 81–86, 92–94).",
"5. Consent (sections 87, 90).",
6. Trifling acts (section 95).,
7. Private defence (sections 96–106).,
"Onus of proving exception lies on accused.—When a person is accused of any offence,",
the burden of proving the existence of circumstances bringing the case within any of,
"the general exceptions in the Penal Code, or within any special exception or proviso",
"contained in any other part of the same Code, or in any law defining the offence, is",
"upon him, and the Court shall presume the absence of such circumstances.2.",
Although the law lays down that the onus of proving circumstances which give the,
"benefit of a general exception to an accused person lies on him, and in the absence of",
"evidence the presumption is against the accused, this does not mean that the accused",
"must lead evidence. If it is apparent from the evidence on the record, whether produced",
"by the prosecution or by the defence, that a general exception would apply, then the",
presumption is removed and it is open to the Court to consider whether the evidence,
proves to its satisfaction that the accused comes within the exception.3.,
Applicability of General exceptions during investigation.—In considering that whether,
"accusation made in the complaint makes out a case for commission of offence or not,",
the police while reaching the prima facie satisfaction of suspecting the commission of,
"cognizable offence, cannot ignore the general exception as provided under IPC, 1860",
"as per Chapter IV of IPC, 1860. If on the basis of the allegation made in the complaint,",
"the case is falling in general exceptions, it can be said that the action cannot be termed",
as an offence.4. Investigating officer is bound to investigate and confirm that despite,
"what is contained in the ""General Exceptions""; acts committed by accused shall",
"constitute offence under IPC, 1860. This shall be done, by virtue of section 6 of IPC,",
"1860. In the light of section 6 of IPC, 1860, definition of every offence is to be",
"understood subject to the ""General Exceptions"". Therefore, investigation shall not",
confine merely to the acts committed by a person. Depending on facts and,
"circumstances of each case, many other relevant facts also have to be investigated",
"into, in the light of the provisions contained in ""General Exceptions"". It is only then that",
an investigating officer will be able to confirm whether the act committed by a person,
"is an offence or not, as defined in IPC, 1860 subject to what is contained in ""General",
"Exceptions"". Further, the category of self-defence falling in general exception would fall",
"in a different category than the general exceptions, which are provided in the very",
chapter for exercise of the statutory duty or lawful power either under the mistake of,
law or fact or mistaken belief of law or fact.5.,
[s 80] Accident in doing a lawful act.,
"Nothing is an offence which is done by accident 1 or misfortune, and without any",
criminal intention or knowledge in the doing of a lawful act in a lawful manner by,
lawful means and with proper care and caution.,
ILLUSTRATION,
"A is at work with a hatchet; the head flies off and kills a man who is standing by. Here, if",
"there was no want of proper caution on the part of A, his act is excusable and not an",
offence.,
COMMENT.—,
This section exempts the doer of an innocent or lawful act in an innocent or lawful,
manner and without any criminal intention or knowledge from any unforeseen evil,
result that may ensue from accident or misfortune.48. To claim the benefit of this,
provision it has to be shown:,
(1) that the act in question was without any criminal intention or knowledge;,
(2) that the act was being done in a lawful manner by lawful means; and,
(3) that act was being done with proper care and caution.49.,
1. 'Accident'.—An effect is said to be accidental when the act by which it is caused is,
"not done with the intention of causing it, and when its occurrence as a consequence of",
"such act is not so probable that a person of ordinary prudence ought, under the",
"circumstances in which it is done, to take reasonable precautions against it.50. An",
accident is something that happens out of the ordinary course of things.51. The idea of,
something fortuitous and unexpected is involved in the word 'accident.'52. Where two,
brothers were sleeping together and one of them while in a state of semi-sleep felt that,
"somebody was throttling him, picked up the dao, kept on the head of the bed, and",
"administered a blow which was received by his sleeping brother who died, there being",
"neither intention nor motive, the accused was let off under this section. His act was not",
voluntary.53.,
An injury is said to be accidentally caused whensoever it is neither wilfully nor,
negligently caused.54. Where the accused fired a shot at his assailant who escaped but,
"four other persons were injured and one of them unfortunately expired, it was held that",
the accused was not liable for the fatal injury to an innocent person as his case fell,
"within the scope of section 80 read with sections 96 and 100, IPC, 1860.55. Shooting",
with an unlicensed gun does not debar an accused from claiming immunity under this,
section.56.,
[s 80.1] Medical Negligence.—,
To prosecute a medical professional for negligence under criminal law it must be,
shown that the accused did something or failed to do something which in the given,
facts and circumstances no medical professional in his ordinary senses and prudence,
would have done or failed to do. The hazard taken by the accused doctor should be of,
such a nature that the injury which resulted was most likely imminent.57. In Dr. Suresh,
"Gupta v Govt. of NCT of Delhi,58. the Apex Court held that where the medical practitioner",
"failed to take appropriate steps, viz., ""not putting a cuffed endotracheal tube of proper",
"size"" so as to prevent aspiration of blood blocking respiratory passage, the act",
attributed to him may be described as negligent act but not so reckless as to make him,
"criminally liable. In Kusum Sharma v Batra Hospital and Medical Research Centre,59. the",
Supreme Court reiterated the legal position after taking survey of catena of case law. In,
"the context of issue pertaining to criminal liability of a medical practitioner, it is laid",
down that the prosecution of a medical practitioner would be liable to be quashed if the,
evidence on record does not project substratum enough to infer gross or excessive,
degree of negligence on his/her part. The criminal liability cannot be fastened on the,
Medical Practitioner unless the negligence is so obvious and of such high degree that it,
would be culpable by applying the settled norms.60.,
[s 80.2] CASES.—,
Deceased allegedly dashed by offending tractor and crushed by its wheels. The,
Steering bolt of steering wheel was evidently broken all of a sudden. Offending vehicle,
became free and was out of control. Incident was merely an accident and not an act of,
rashness or negligence on the part of the accused.61. Where the act of the accused is,
"itself of criminal nature, the protection of this section cannot be availed. In this case,",
"the accused picked up his gun, unlocked it, loaded it with cartridges, aimed at the chest",
of the victim from a close range of 4–5 feet and shot it. Quite naturally this section was,
held to be not applicable. There could be no suggestion of an accident.62. Where the,
Death is caused by shooting an arrow under bona fide belief that object aimed at was,
"an animal, accused is entitled to the benefit under sections 79 or 80.63. The accused",
was attacked when he was asleep at night by his brother who tried to strangulate him.,
"Apprehending imminent death, the accused aimed a blow at his assailant brother with",
a piece of bamboo on which he could lay hand and the blow accidentally struck the,
head of his intervening father as a result of which he ultimately died. It was held that,
the accused exercised his lawful right of self- defence and the blow fell on the head of,
his father by accident and misfortune and he was fully protected by sections 80 and,
106. His conviction under section 304 Part II was set aside.64.,
[s 80.3] Burden of Proof.—,
The prosecution alleges that the accused intentionally shot the deceased; but the,
"accused pleads that, though the shots emanated from his revolver and hit the",
"deceased, it was by accident, that is, the shots went off from the revolver in the course",
"of a struggle in the circumstances mentioned in section 80 of the IPC, 1860 and hit the",
deceased resulting in his death. The Court then shall presume the absence of,
"circumstances bringing the case within the provisions of section 80 of the IPC, 1860,",
"that is, it shall presume that the shooting was not by accident, and that the other",
circumstances bringing the case within the exception did not exist. But this,
presumption may be rebutted by the accused by adducing evidence to support his plea,
of accident in the circumstances mentioned therein. This presumption may also be,
rebutted by admissions made or circumstances elicited by the evidence led by the,
prosecution or by the combined effect of such circumstances and the evidence,
adduced by the accused. But the section does not in any way affect the burden that lies,
on the prosecution to prove all the ingredients of the offence with which the accused is,
charged and that burden never shifts.65.,
"1. Shankar Narayan Bhadolkar v State of Maharashtra, AIR 2004 SC 1966 [LNIND 2004 SC 1370] :",
2004 Cr LJ 1778 : (2005) 9 SCC 71 [LNIND 2004 SC 1370] .,
"2. The Indian Evidence Act, I of 1872, section 105.",
"3. Musammat Anandi, (1923) 45 All 329 ; Babulal, 1960 Cr LJ 437 (All).",
"4. A K Chaudhary v State of Gujarat, 2006 Cr LJ 726 (Guj).",
"5. A K Chaudhary v State of Gujarat, 2006 Cr LJ 726 (Guj).",
"48. Sukhdev Singh v Delhi State (Govt. of NCT of Delhi), (2003) 7 SCC 441 [LNIND 2003 SC 728] :",
"AIR 2003 SC 3716 [LNIND 2003 SC 728] , if either of these elements is missing, the act is not to",
be excused on the ground of accident.,
"49. Atmendra v State of Karnataka, 1998 Cr LJ 2838 : AIR 1998 SC 1985 [LNIND 1998 SC 386]",
(SC).,
"50. Stephen's Digest of Criminal Law, 9th Edn, Article 316.",
"51. Fenwick v Schmalz, (1868) LR 3 CP 313, 316. Atmendra v State of Karnataka, 1998 Cr LJ",
"2838 : AIR 1998 SC 1985 [LNIND 1998 SC 386] (SC); Sita Ram v State of Rajasthan, 1998 Cr LJ",
"287 (Raj), the accused labourer was digging earth by spade, another labourer came close to him",
to remove the soil and became the victim of one spade blow of which he died. It was held that,
the act of the accused came neither within section 302 nor section 304. It fell within section,
304A being an act of criminal negligence. Sentence imposed upon him was reduced to the,
period already undergone.,
"52. Per Lord Halsbury in Hamilton, Fraser & Co v Pandorf & Co, (1887) 12 AC 518 , 524.",
"53. Patreswar Basumatary v State of Assam, 1989 Cr LJ 196 (Gau).",
54. 10th Parl Rep 16.,
"55. Raja Ram, 1977 Cr LJ NOC 85 (All); see also Khora Ghasi, 1978 Cr LJ 1305 (Ori) under",
section 79 ante.,
"56. Rangaswamy, (1952) Nag 93.",
"57. Jacob Mathew v State of Punjab, AIR 2005 SC 3180 [LNIND 2005 SC 587] : 2005 (6) SCC 1",
[LNIND 2005 SC 587] in this case SC issued guidelines regarding the prosecution of Doctors for,
medical Negligence; See comments in section 304A.,
"58. Dr. Suresh Gupta v Govt. of NCT of Delhi, (2004) 6 SCC 422 [LNIND 2004 SC 744] : 2004 AIR",
SCW 4442 : AIR 2004 SC 4091 [LNIND 2004 SC 744] .,
"59. Kusum Sharma v Batra Hospital and Medical Research Centre, 2010 (3) SCC 480 [LNIND",
2010 SC 164] .,
"60. Dr. Saroja Patil v State of Maharashtra, 2011 Cr LJ 1060 (Bom).",
"61. Mahadev v State of MP, 2006 Cr LJ 4246 (MP).",
"62. Shankar Narayan Bhadolkar v State of Maharashtra, AIR 2004 SC 1966 [LNIND 2004 SC 1370]",
: 2004 Cr LJ 1778 : (2005) 9 SCC 71 [LNIND 2004 SC 1370] .,
"63. State of Orissa, v Khora Ghasi, 1978 Cr LJ 1305 ; State of MP v Rangaswami 1952 Cr LJ 1191",
.,
"64. Girish Saikia v State of Assam, 1993 Cr LJ 3808 (Gau).",
"65. K M Nanavati v State of Maharashtra, AIR 1962 SC 605 [LNIND 1961 SC 362] : 1962 (Supp1)",
"SCR 567 : 1962 Cr LJ 521 ; Shankar Narayan Bhadolkar v State of Maharashtra, AIR 2004 SC 1966",
[LNIND 2004 SC 1370] : (2005) 9 SCC 71 [LNIND 2004 SC 1370] .,
THE INDIAN PENAL CODE,
CHAPTER IV GENERAL EXCEPTIONS,
THIS chapter has been framed in order to obviate the necessity of repeating in every,
penal clause a considerable number of limitations.,
The word 'offence' in this chapter denotes a thing punishable under the Code or under,
any special or local law when it satisfied the conditions laid down in section 40 of the,
Code.,
"The ""general exceptions"" contained in sections 76–106 make an offence a non-offence.",
"The ""general exceptions"" enacted by Indian Penal Code, 1860 (IPC, 1860) are of",
"universal application and for the sake of brevity of expression, instead of repeating in",
"every section that the definition is to be taken subject to the exceptions, the Legislature",
"by section 6 IPC, 1860 enacted that all the definitions must be regarded as subject to",
"the general exceptions. Therefore, general exceptions are part of definition of every",
"offence contained in IPC, 1860, but the burden to prove their existence lied on the",
accused.1.,
The following acts are exempted under the Code from criminal liability:—,
1. Act of a person bound by law to do a certain thing (section 76).,
2. Act of a Judge acting judicially (section 77).,
3. Act done pursuant to an order or a judgment of a Court (section 78).,
"4. Act of a person justified, or believing himself justified, by law (section 79).",
5. Act caused by accident (section 80).,
6. Act likely to cause harm done without criminal intent to prevent other harm,
(section 81).,
7. Act of a child under seven years (section 82).,
"8. Act of a child above seven and under 12 years, but of immature understanding",
(section 83).,
9. Act of a person of unsound mind (section 84).,
10. Act of an intoxicated person (section 85) and partially exempted (section 86).,
11. Act not known to be likely to cause death or grievous hurt done by consent of,
the sufferer (section 87).,
12. Act not intended to cause death done by consent of sufferer (section 88).,
13. Act done in good faith for the benefit of a child or an insane person by or by the,
consent of guardian (section 89).,
14. Act done in good faith for the benefit of a person without consent (section 92).,
15. Communication made in good faith to a person for his benefit (section 93).,
16. Act done under threat of death (section 94).,
17. Act causing slight harm (section 95).,
18. Act done in private defence (sections 96–106).,
"The above exceptions, strictly speaking, come within the following seven categories:—",
"1. Judicial acts (section. 77, 78).",
"2. Mistake of fact (sections 76, 79).",
3. Accident (section 80).,
"4. Absence of criminal intent (sections 81–86, 92–94).",
"5. Consent (sections 87, 90).",
6. Trifling acts (section 95).,
7. Private defence (sections 96–106).,
"Onus of proving exception lies on accused.—When a person is accused of any offence,",
the burden of proving the existence of circumstances bringing the case within any of,
"the general exceptions in the Penal Code, or within any special exception or proviso",
"contained in any other part of the same Code, or in any law defining the offence, is",
"upon him, and the Court shall presume the absence of such circumstances.2.",
Although the law lays down that the onus of proving circumstances which give the,
"benefit of a general exception to an accused person lies on him, and in the absence of",
"evidence the presumption is against the accused, this does not mean that the accused",
"must lead evidence. If it is apparent from the evidence on the record, whether produced",
"by the prosecution or by the defence, that a general exception would apply, then the",
presumption is removed and it is open to the Court to consider whether the evidence,
proves to its satisfaction that the accused comes within the exception.3.,
Applicability of General exceptions during investigation.—In considering that whether,
"accusation made in the complaint makes out a case for commission of offence or not,",
the police while reaching the prima facie satisfaction of suspecting the commission of,
"cognizable offence, cannot ignore the general exception as provided under IPC, 1860",
"as per Chapter IV of IPC, 1860. If on the basis of the allegation made in the complaint,",
"the case is falling in general exceptions, it can be said that the action cannot be termed",
as an offence.4. Investigating officer is bound to investigate and confirm that despite,
"what is contained in the ""General Exceptions""; acts committed by accused shall",
"constitute offence under IPC, 1860. This shall be done, by virtue of section 6 of IPC,",
"1860. In the light of section 6 of IPC, 1860, definition of every offence is to be",
"understood subject to the ""General Exceptions"". Therefore, investigation shall not",
confine merely to the acts committed by a person. Depending on facts and,
"circumstances of each case, many other relevant facts also have to be investigated",
"into, in the light of the provisions contained in ""General Exceptions"". It is only then that",
an investigating officer will be able to confirm whether the act committed by a person,
"is an offence or not, as defined in IPC, 1860 subject to what is contained in ""General",
"Exceptions"". Further, the category of self-defence falling in general exception would fall",
"in a different category than the general exceptions, which are provided in the very",
chapter for exercise of the statutory duty or lawful power either under the mistake of,
law or fact or mistaken belief of law or fact.5.,
"[s 81] Act likely to cause harm, but done without criminal intent, and to prevent",
other harm.,
Nothing is an offence merely by reason of its being done with the knowledge that it is,
"likely to cause harm, if it be done without any criminal intention1 to cause harm, and",
in good faith for the purpose of preventing or avoiding other harm to person or,
property.,
Explanation.—It is a question of fact in such a case whether the harm to be prevented,
or avoided was of such a nature and so imminent as to justify or excuse the risk of,
doing the act with the knowledge that it was likely to cause harm.,
ILLUSTRATIONS,
"(a) A, the captain of a steam vessel, suddenly and without any fault or negligence",
"on his part, finds himself in such a position that, before he can stop his vessel,",
"he must inevitably run down a boat B, with twenty or thirty passengers on board,",
"unless he changes the course of his vessel, and that, by changing his course, he",
"must incur risk of running down a boat C with only two passengers on board,",
"which he may possibly clear. Here, if A alters his course without any intention to",
run down the boat C and in good faith for the purpose of avoiding the danger to,
"the passengers in the boat B, he is not guilty of an offence, though he may run",
"down the boat C by doing an act which he knew was likely to cause that effect, if",
it be found as a matter of fact that the danger which he intended to avoid was,
such as to excuse him in incurring the risk of running down the boat C.,
"(b) A, in a great fire, pulls down houses in order to prevent the conflagration from",
spreading. He does this with the intention in good faith of saving human life or,
"property. Here, if it be found that the harm to be prevented was of such a nature",
and so imminent as to excuse A's act. A is not guilty of the offence.,
COMMENT.—,
An act which would otherwise be a crime may in some cases be excused if the person,
accused can show that it was done only in order to avoid consequences which could,
"not otherwise be avoided, and which, if they had followed, would have inflicted upon",
"him or upon others whom he was bound to protect inevitable and irreparable evil, that",
"no more was done than was reasonably necessary for that purpose, and that the evil",
inflicted by it was not disproportionate to the evil avoided.66. As in self-defence so in,
the prevention of harm the accused is faced with two choices both resulting in some,
harm and of sheer necessity to avoid a greater harm he has to commit an act which,
would otherwise be an offence. The test really is like this: there must be a situation in,
which the accused is confronted with a grave danger and he has no choice but to,
"commit the lesser harm may be even to an innocent person, in order to avoid the",
greater harm. Here the choice is between the two evils and the accused rightly chooses,
the lesser one.67.,
1. 'Without any criminal intention'.—Under no circumstances can a person be justified,
"in intentionally causing harm; but if he causes the harm without any criminal intention,",
"and merely with the knowledge that it is likely to ensue, he will not be held responsible",
"for the result of his act, provided it be done in good faith to avoid or prevent other harm",
to person or property.,
'Criminal intention' simply means the purpose of design or doing an act forbidden by,
the criminal law without just cause or excuse. An act is intentional if it exists in idea,
"before it exists in fact, the idea realizing itself in the fact because of the desire by which",
it is accompanied. The motive for an act is not a sufficient test to determine its criminal,
"character. By a motive is meant anything that can contribute to give birth to, or even to",
"prevent, any kind of action. Motive may serve as a clue to the intention; but although",
"the motive is pure, the act done under it may be criminal. Purity of motive will not purge",
an act of its criminal character.,
Where an offence depends upon proof of intention the Court must have proof of facts,
sufficient to justify in coming to the conclusion that the intention existed. No doubt one,
"has usually to infer intention from conduct, and one matter that has to be taken into",
account is the probable effect of the conduct. But that is never conclusive.68.,
"Where the positive evidence against the accused is clear, cogent and reliable, the",
question of motive is of no importance.69.,
[s 81.1] Mens rea.—,
It is a well settled principle of common law that mens rea is an essential ingredient of,
"criminal offence. A statute can exclude that element, but it is a sound rule of",
construction adopted in England and also accepted in India to construe a statutory,
provision creating an offence in conformity with the common law rather than against it,
unless the statute expressly or by necessary implication excludes mens rea. There is a,
presumption that mens rea is an essential ingredient of a statutory offence; but this,
may be rebutted by the express words of a statute creating the offence or by necessary,
implication. But the mere fact that the object of a statute is to promote welfare,
activities or to eradicate grave social evils is in itself not decisive of the question,
whether the element of guilty mind is excluded from the ingredients of the offence. It is,
also necessary to enquire whether a statute by putting a person under strict liability,
helps him to assist the State in the enforcement of the law; can he do anything to,
promote the observance of the law? Mens rea by necessary implication can be,
excluded from a statute only where it is absolutely clear that the implementation of the,
object of a statute would otherwise be defeated and its exclusion enables those put,
under strict liability by their act or omission to assist the promotion of the law. The,
nature of mens rea that will be implied in a statute creating an offence depends upon,
the object of the Act and the provisions thereof.70.,
"It is, however, held that mens rea is an essential ingredient in every offence except in",
three cases:,
(1) cases not criminal in any real sense but which in the public interest are,
prohibited under a penalty;,
(2) public nuisance; and,
(3) cases criminal in form but which are really only a summary mode of enforcing a,
civil right.,
"The maxim actus non facit reum, nisi mens sit rea has, however, no application in its",
"technical sense to the offences under the Penal Code, as the definitions of various",
offences contain expressly a proposition as to the state of mind of the accused. In,
"other words, each offence under the Code except offences like waging war (section",
"121), sedition (section 124A), kidnapping and abduction (sections 359, 363) and",
counterfeiting coins (section 232) prescribes a mens rea of a specific kind which is not,
exactly the same as mens rea in the sense of being a guilty mind under the common,
"law. Thus, throughout the web of the IPC, 1860 the doctrine of mens rea runs as a",
"running thread in the form of ""intentionally"", ""voluntarily"", ""knowingly"", ""fraudulently"",",
"""dishonestly"" and the like. It is, therefore, not entirely correct to say that the doctrine of",
mens rea is inapplicable to the offence under the Penal Code. What the Code requires,
is not negation of mens rea but mens rea of a specific kind and this may differ from,
offence-to-offence.,
"In this section and in sections 87, 88, 89, 91, 92, 93, 95, 100, 104 and 106, 'harm' can",
only mean physical injury.71.,
"As to the doctrine of compulsion and necessity, see comment on section 94, infra.",
[s 81.2] CASES.—,
Where a Chief Constable not in his uniform came to a fire and wished to force his way,
"past the military sentries placed round it, was kicked by a sentry, it was held that as the",
"sentry did not know who he was, the kick was justifiable for the purpose of preventing",
much greater harm under this section and as a means of acting up to the military,
"order.72. A person placed poison in his toddy pots, knowing that if taken by a human",
"being it would cause injury, but with the intention of thereby detecting an unknown thief",
who was in the habit of stealing the toddy from his pots. The toddy was drunk by and,
caused injury to some soldiers who purchased it from an unknown vendor. It was held,
"that the person was guilty under section 328, and that this section did not apply.73.",
Where a Village Magistrate arrested a drunken person whose conduct was at the time a,
"grave danger to the public, it was held that he was not guilty of an offence by reason of",
the provisions of this section or sections 96 or 105.74.,
[s 81.3] English cases.—,
"A man who, in order to escape death from hunger, kills another for the purpose of",
"eating his flesh, is guilty of murder; although at the time of the act he is in such",
circumstances that he believes and has reasonable ground for believing that it affords,
the only chance of preserving his life. At the trial of an indictment for murder it,
"appeared that the prisoners D and S, seamen, and the deceased, a boy between 17 and",
"18, were cast away in a storm on the high seas, and compelled to put into an open",
"boat; that the boat was drifting on the ocean and was probably more than 1,000 miles",
"from land; that on the 18th day, when they had been seven days without food and five",
"days without water, D proposed to S that lots should be cast who should be put to",
"death to save the rest, and that they afterwards thought it would be better to kill the boy",
"that their lives should be saved; that on the 20th day, D with the assent of S, killed the",
"boy, and both D and S fed on his flesh for four days; that at the time of the act there",
was no sail in sight nor any reasonable prospect of relief; that under these,
circumstances there appeared to the prisoners every probability that unless they then,
"or very soon fed upon the boy, or one of themselves, they would die of starvation. It",
was held that upon these facts there was no proof of any such necessity as could,
"justify the prisoners in killing the boy, and that they were guilty of murder.75. A and B,",
"swimming in the sea after shipwreck, get hold of a plank not large enough to support",
"both; A pushes off B, who is drowned. This, in the opinion of Sir James Stephen, is not a",
crime as A thereby does B no direct bodily harm but leaves him to his chance of getting,
"another plank. According to Archbold this is not a law now. In R v Martin,76. the",
"defendant, charged with driving whilst disqualified, sought to raise necessity as a",
"defence but on the trial judge ruling, in effect, that necessity was no defence to an",
"'absolute' offence, he changed his plea to guilty. The circumstances on which the",
defendant sought to rely were that his wife's son (the defendant's stepson) was late for,
"work and accordingly in danger of losing his job, and that this had made his wife so",
distraught that she threatened to commit suicide unless he drove her son to work.,
There was medical evidence available indicating that it was likely that his wife would,
"have attempted suicide had he not driven her son to work. The Court of Appeal,",
"quashing the conviction, held that the trial judge should have left the defence to the",
"jury. The authorities were now clear, said the Court, and established the following",
"principles. First, the law does recognise a defence of necessity whether arising from",
wrongful threats of violence to another or from 'objective dangers' (conveniently called,
"duress of circumstances) threatening the defendant or others. Second, the defence is",
available only if the defendant can be objectively said to be acting reasonably and,
"proportionately to avoid the threat of death or serious injury. Third, it is for the jury to",
determine whether because of what the defendant reasonably believed he had good,
"cause to fear death or serious injury; and, if so, whether a person of reasonable",
"firmness, sharing the characteristics of the defendant, would have responded as the",
defendant did.77.,
"1. Shankar Narayan Bhadolkar v State of Maharashtra, AIR 2004 SC 1966 [LNIND 2004 SC 1370] :",
2004 Cr LJ 1778 : (2005) 9 SCC 71 [LNIND 2004 SC 1370] .,
"2. The Indian Evidence Act, I of 1872, section 105.",
"3. Musammat Anandi, (1923) 45 All 329 ; Babulal, 1960 Cr LJ 437 (All).",
"4. A K Chaudhary v State of Gujarat, 2006 Cr LJ 726 (Guj).",
"5. A K Chaudhary v State of Gujarat, 2006 Cr LJ 726 (Guj).",
"66. Stephen's Digest of Criminal Law, 9th Edn, Article 11.",
"67. Southwark London Borough Council v Williams, (1971) Ch 734 , (1971) 2 All ER 175 ; Wood v",
Richards (1971) RTR 201 .,
"68. Ramchandra Gujar, (1937) 39 Bom LR 1184 , (1938) Bom 114.",
"69. Gurcharan Singh v State of Punjab, AIR 1956 SC 460 : 1956 Cr LJ 827 . Kusta Balsu",
"Kandnekar v State of Goa, 1987 Cr LJ 89 Bom.",
"70. Mayer Hans George, (1964) 67 Bom LR 583 , AIR 1965 SC 722 [LNIND 1964 SC 208] : (1965)",
"1 Cr LJ 641 . See also Nathulal, AIR 1966 SC 43 [LNIND 1965 SC 97] : 1966 Cr LJ 71 .",
"71. Veeda Menezes v Yusuf Khan, 1966 Cr LJ 1489 : AIR 1966 SC 1773 [LNIND 1966 SC 107] :",
68 Bom LR 629.,
"72. Bostan, (1892) 17 Bom 626.",
"73. Dhania Daji, (1868) 5 BHC (Cr C) 59.",
"74. Gopal Naidu, (1922) 46 Mad 605 (FB).",
"75. Dudley and Stephens, (1884) 14 QBD 273 .",
"76. R v Martin, (1989) 1 All ER 652 CA.",
77. Reproduced from All ER Annual Review 1989.,
THE INDIAN PENAL CODE,
CHAPTER IV GENERAL EXCEPTIONS,
THIS chapter has been framed in order to obviate the necessity of repeating in every,
penal clause a considerable number of limitations.,
The word 'offence' in this chapter denotes a thing punishable under the Code or under,
any special or local law when it satisfied the conditions laid down in section 40 of the,
Code.,
"The ""general exceptions"" contained in sections 76–106 make an offence a non-offence.",
"The ""general exceptions"" enacted by Indian Penal Code, 1860 (IPC, 1860) are of",
"universal application and for the sake of brevity of expression, instead of repeating in",
"every section that the definition is to be taken subject to the exceptions, the Legislature",
"by section 6 IPC, 1860 enacted that all the definitions must be regarded as subject to",
"the general exceptions. Therefore, general exceptions are part of definition of every",
"offence contained in IPC, 1860, but the burden to prove their existence lied on the",
accused.1.,
The following acts are exempted under the Code from criminal liability:—,
1. Act of a person bound by law to do a certain thing (section 76).,
2. Act of a Judge acting judicially (section 77).,
3. Act done pursuant to an order or a judgment of a Court (section 78).,
"4. Act of a person justified, or believing himself justified, by law (section 79).",
5. Act caused by accident (section 80).,
6. Act likely to cause harm done without criminal intent to prevent other harm,
(section 81).,
7. Act of a child under seven years (section 82).,
"8. Act of a child above seven and under 12 years, but of immature understanding",
(section 83).,
9. Act of a person of unsound mind (section 84).,
10. Act of an intoxicated person (section 85) and partially exempted (section 86).,
11. Act not known to be likely to cause death or grievous hurt done by consent of,
the sufferer (section 87).,
12. Act not intended to cause death done by consent of sufferer (section 88).,
13. Act done in good faith for the benefit of a child or an insane person by or by the,
consent of guardian (section 89).,
14. Act done in good faith for the benefit of a person without consent (section 92).,
15. Communication made in good faith to a person for his benefit (section 93).,
16. Act done under threat of death (section 94).,
17. Act causing slight harm (section 95).,
18. Act done in private defence (sections 96–106).,
"The above exceptions, strictly speaking, come within the following seven categories:—",
"1. Judicial acts (section. 77, 78).",
"2. Mistake of fact (sections 76, 79).",
3. Accident (section 80).,
"4. Absence of criminal intent (sections 81–86, 92–94).",
"5. Consent (sections 87, 90).",
6. Trifling acts (section 95).,
7. Private defence (sections 96–106).,
"Onus of proving exception lies on accused.—When a person is accused of any offence,",
the burden of proving the existence of circumstances bringing the case within any of,
"the general exceptions in the Penal Code, or within any special exception or proviso",
"contained in any other part of the same Code, or in any law defining the offence, is",
"upon him, and the Court shall presume the absence of such circumstances.2.",
Although the law lays down that the onus of proving circumstances which give the,
"benefit of a general exception to an accused person lies on him, and in the absence of",
"evidence the presumption is against the accused, this does not mean that the accused",
"must lead evidence. If it is apparent from the evidence on the record, whether produced",
"by the prosecution or by the defence, that a general exception would apply, then the",
presumption is removed and it is open to the Court to consider whether the evidence,
proves to its satisfaction that the accused comes within the exception.3.,
Applicability of General exceptions during investigation.—In considering that whether,
"accusation made in the complaint makes out a case for commission of offence or not,",
the police while reaching the prima facie satisfaction of suspecting the commission of,
"cognizable offence, cannot ignore the general exception as provided under IPC, 1860",
"as per Chapter IV of IPC, 1860. If on the basis of the allegation made in the complaint,",
"the case is falling in general exceptions, it can be said that the action cannot be termed",
as an offence.4. Investigating officer is bound to investigate and confirm that despite,
"what is contained in the ""General Exceptions""; acts committed by accused shall",
"constitute offence under IPC, 1860. This shall be done, by virtue of section 6 of IPC,",
"1860. In the light of section 6 of IPC, 1860, definition of every offence is to be",
"understood subject to the ""General Exceptions"". Therefore, investigation shall not",
confine merely to the acts committed by a person. Depending on facts and,
"circumstances of each case, many other relevant facts also have to be investigated",
"into, in the light of the provisions contained in ""General Exceptions"". It is only then that",
an investigating officer will be able to confirm whether the act committed by a person,
"is an offence or not, as defined in IPC, 1860 subject to what is contained in ""General",
"Exceptions"". Further, the category of self-defence falling in general exception would fall",
"in a different category than the general exceptions, which are provided in the very",
chapter for exercise of the statutory duty or lawful power either under the mistake of,
law or fact or mistaken belief of law or fact.5.,
[s 82] Act of a child under seven years of age.,
Nothing is an offence which is done by a child under seven years of age.,
COMMENT.—,
"Under the age of seven years no infant can be guilty of a crime; for, under that age an",
"infant is, by presumption of law, doli incapax, and cannot be endowed with any",
"discretion. If the accused were a child under seven years of age, the proof of that fact",
"would be ipso facto an answer to the prosecution.78. It is, therefore, desirable to bring",
some evidence regarding the age of the accused on the record.79.,
"The accused purchased for one anna, from a child aged six years, two pieces of cloth",
"valued at 15 annas, which the child had taken from the house of a third person. It was",
"held that, assuming that a charge of an offence of dishonest reception of property",
(section 411) could not be sustained owing to the incapacity of the child to commit an,
"offence, the accused was guilty of criminal misappropriation, if he knew that the",
property belonged to the child's guardians and dishonestly appropriated it to his own,
use.80.,
"1. Shankar Narayan Bhadolkar v State of Maharashtra, AIR 2004 SC 1966 [LNIND 2004 SC 1370] :",
2004 Cr LJ 1778 : (2005) 9 SCC 71 [LNIND 2004 SC 1370] .,
"2. The Indian Evidence Act, I of 1872, section 105.",
"3. Musammat Anandi, (1923) 45 All 329 ; Babulal, 1960 Cr LJ 437 (All).",
"4. A K Chaudhary v State of Gujarat, 2006 Cr LJ 726 (Guj).",
"5. A K Chaudhary v State of Gujarat, 2006 Cr LJ 726 (Guj).",
"78. Lukhini Agradanini, (1874) 22 WR (Cr) 27, 28.",
"79. Hiralal, 1977 Cr LJ 1921 : AIR 1977 SC 2236 [LNIND 1977 SC 254] .",
"80. Makhulshah v State, (1886) 1 Weir 470.",
THE INDIAN PENAL CODE,
CHAPTER IV GENERAL EXCEPTIONS,
THIS chapter has been framed in order to obviate the necessity of repeating in every,
penal clause a considerable number of limitations.,
The word 'offence' in this chapter denotes a thing punishable under the Code or under,
any special or local law when it satisfied the conditions laid down in section 40 of the,
Code.,
"The ""general exceptions"" contained in sections 76–106 make an offence a non-offence.",
"The ""general exceptions"" enacted by Indian Penal Code, 1860 (IPC, 1860) are of",
"universal application and for the sake of brevity of expression, instead of repeating in",
"every section that the definition is to be taken subject to the exceptions, the Legislature",
"by section 6 IPC, 1860 enacted that all the definitions must be regarded as subject to",
"the general exceptions. Therefore, general exceptions are part of definition of every",
"offence contained in IPC, 1860, but the burden to prove their existence lied on the",
accused.1.,
The following acts are exempted under the Code from criminal liability:—,
1. Act of a person bound by law to do a certain thing (section 76).,
2. Act of a Judge acting judicially (section 77).,
3. Act done pursuant to an order or a judgment of a Court (section 78).,
"4. Act of a person justified, or believing himself justified, by law (section 79).",
5. Act caused by accident (section 80).,
6. Act likely to cause harm done without criminal intent to prevent other harm,
(section 81).,
7. Act of a child under seven years (section 82).,
"8. Act of a child above seven and under 12 years, but of immature understanding",
(section 83).,
9. Act of a person of unsound mind (section 84).,
10. Act of an intoxicated person (section 85) and partially exempted (section 86).,
11. Act not known to be likely to cause death or grievous hurt done by consent of,
the sufferer (section 87).,
12. Act not intended to cause death done by consent of sufferer (section 88).,
13. Act done in good faith for the benefit of a child or an insane person by or by the,
consent of guardian (section 89).,
14. Act done in good faith for the benefit of a person without consent (section 92).,
15. Communication made in good faith to a person for his benefit (section 93).,
16. Act done under threat of death (section 94).,
17. Act causing slight harm (section 95).,
18. Act done in private defence (sections 96–106).,
"The above exceptions, strictly speaking, come within the following seven categories:—",
"1. Judicial acts (section. 77, 78).",
"2. Mistake of fact (sections 76, 79).",
3. Accident (section 80).,
"4. Absence of criminal intent (sections 81–86, 92–94).",
"5. Consent (sections 87, 90).",
6. Trifling acts (section 95).,
7. Private defence (sections 96–106).,
"Onus of proving exception lies on accused.—When a person is accused of any offence,",
the burden of proving the existence of circumstances bringing the case within any of,
"the general exceptions in the Penal Code, or within any special exception or proviso",
"contained in any other part of the same Code, or in any law defining the offence, is",
"upon him, and the Court shall presume the absence of such circumstances.2.",
Although the law lays down that the onus of proving circumstances which give the,
"benefit of a general exception to an accused person lies on him, and in the absence of",
"evidence the presumption is against the accused, this does not mean that the accused",
"must lead evidence. If it is apparent from the evidence on the record, whether produced",
"by the prosecution or by the defence, that a general exception would apply, then the",
presumption is removed and it is open to the Court to consider whether the evidence,
proves to its satisfaction that the accused comes within the exception.3.,
Applicability of General exceptions during investigation.—In considering that whether,
"accusation made in the complaint makes out a case for commission of offence or not,",
the police while reaching the prima facie satisfaction of suspecting the commission of,
"cognizable offence, cannot ignore the general exception as provided under IPC, 1860",
"as per Chapter IV of IPC, 1860. If on the basis of the allegation made in the complaint,",
"the case is falling in general exceptions, it can be said that the action cannot be termed",
as an offence.4. Investigating officer is bound to investigate and confirm that despite,
"what is contained in the ""General Exceptions""; acts committed by accused shall",
"constitute offence under IPC, 1860. This shall be done, by virtue of section 6 of IPC,",
"1860. In the light of section 6 of IPC, 1860, definition of every offence is to be",
"understood subject to the ""General Exceptions"". Therefore, investigation shall not",
confine merely to the acts committed by a person. Depending on facts and,
"circumstances of each case, many other relevant facts also have to be investigated",
"into, in the light of the provisions contained in ""General Exceptions"". It is only then that",
an investigating officer will be able to confirm whether the act committed by a person,
"is an offence or not, as defined in IPC, 1860 subject to what is contained in ""General",
"Exceptions"". Further, the category of self-defence falling in general exception would fall",
"in a different category than the general exceptions, which are provided in the very",
chapter for exercise of the statutory duty or lawful power either under the mistake of,
law or fact or mistaken belief of law or fact.5.,
[s 83] Act of a child above seven years of age and under twelve of immature,
understanding.,
Nothing is an offence which is done by a child above seven years of age and under,
"twelve, who has not attained sufficient maturity of understanding to judge of the",
nature and consequences of his conduct on that occasion.,
COMMENT.—,
"Where the accused is a child above seven years of age and under twelve, the incapacity",
to commit an offence only arises when the child has not attained sufficient maturity of,
"understanding to judge of the nature and consequences of his conduct, and such non-",
"attainment would have apparently to be specially pleaded and proved, like the",
"incapacity of a person who, at the time of doing an act charged as an offence, was",
alleged to have been of unsound mind under this section it has got to be shown that,
the accused is not only under 12 but has not attained sufficient maturity of,
"understanding. If no evidence or circumstance is brought to the notice of the Court, it",
"will be presumed that the child accused intended to do what he really did. Thus, where",
a child of 12 or so used a sharp sword in killing a person along with his two brothers,
"and no evidence either of age or immaturity of understanding was led on his behalf, it",
"was held that he committed an offence at least under section 326, IPC, 1860.81. The",
Legislature is manifestly referring in this section to an exceptional immaturity of,
intellect.82. What the section contemplates is that the child should not know the nature,
and physical consequences of his conduct.83. The circumstances of a case may,
disclose such a degree of malice as to justify the maxim malitia supplet octatem.84.,
"Where the accused, a boy over 11 years but below 12 years of age, picked up his knife",
"and advanced towards the deceased with a threatening gesture, saying that he would",
"cut him to bits, and did actually cut him, his entire action can only lead to one inference,",
"namely, that he did what he intended to do and that he knew all the time that a blow",
inflicted with a kathi (knife) would effectuate his intention.85. In the prosecution of an,
"11-year-old child for throwing a brick at a police vehicle and then running away, the",
Court said that the justices were not entitled to conclude from his appearance that he,
was normal in respect of incurring criminal responsibility. The test is whether the child,
knew that what he was doing was seriously wrong and went beyond childish mischief.,
Running away was not by itself sufficient to rebut the presumption of doli incapax. A,
naughty child would run away from a parent or teacher even if what he had done was,
not criminal.86.,
[s 83.1] CASE.—Theft by child.—,
"Where a child of nine years of age stole a necklace, worth Rs. 280, and immediately",
"afterwards sold it to the accused for five annas, the accused could be convicted of",
"receiving stolen property, because the act of the child in selling the necklace showed",
that he had attained a sufficient maturity of understanding to judge of the nature and,
consequences of his conduct on that occasion within the meaning of this section.87.,
Section 83 provides that nothing is an offence which is done by a child above seven,
"years of age and under 12, who has not attained sufficient maturity of understanding to",
"judge of the nature and consequences of his conduct on that occasion. The IPC, 1860",
provides no protection from culpable liability on ground of tender age to one who is,
aged 12 years or more. In a child's life the period between seven and 12 years of age is,
rather the twilight period of transition to a minimal workable level of understanding of,
"things in the firmament of worldly affairs. And that is why both the IPC, 1860 and the",
Oaths Act have made special provisions for children below 12 years in respect of,
matters dependent on a minimal power of understanding.88.,
A claim of juvenility may be raised before any Court and it shall be recognised at any,
"stage, even after final disposal of the case.89.",
"1. Shankar Narayan Bhadolkar v State of Maharashtra, AIR 2004 SC 1966 [LNIND 2004 SC 1370] :",
2004 Cr LJ 1778 : (2005) 9 SCC 71 [LNIND 2004 SC 1370] .,
"2. The Indian Evidence Act, I of 1872, section 105.",
"3. Musammat Anandi, (1923) 45 All 329 ; Babulal, 1960 Cr LJ 437 (All).",
"4. A K Chaudhary v State of Gujarat, 2006 Cr LJ 726 (Guj).",
"5. A K Chaudhary v State of Gujarat, 2006 Cr LJ 726 (Guj).",
"81. Hiralal, Supra.",
"82. Lukhini Agradanini, (1874) 22 WR (Cr) 27, 28.",
"83. Ulla Mahapatra, (1950) Cut 293.",
"84. Mussamut Aimona, (1864) 1 WR (Cr) 43.",
"85. Ulla Mahapatra, Supra.",
"86. A v DPP, (1991) COD 442 (DC).",
"87. Krishna, (1883) 6 Mad 373.",
"88. Santosh Roy v State of WB, 1992 Cr LJ 2493 : 1992 (1) Crimes 904 (Cal).",
"89. Section 7A Juvenile Justice (Care and Protection of Children) Act, 2000. See also Amit",
"Singh v State of Maharashtra, 2011 (8) Scale 439 [LNIND 2011 SC 731] : (2011) 9 SCR 890",
[LNIND 2011 SC 731] : (2011) 13 SCC 744 [LNIND 2011 SC 731] .,
THE INDIAN PENAL CODE,
CHAPTER IV GENERAL EXCEPTIONS,
THIS chapter has been framed in order to obviate the necessity of repeating in every,
penal clause a considerable number of limitations.,
The word 'offence' in this chapter denotes a thing punishable under the Code or under,
any special or local law when it satisfied the conditions laid down in section 40 of the,
Code.,
"The ""general exceptions"" contained in sections 76–106 make an offence a non-offence.",
"The ""general exceptions"" enacted by Indian Penal Code, 1860 (IPC, 1860) are of",
"universal application and for the sake of brevity of expression, instead of repeating in",
"every section that the definition is to be taken subject to the exceptions, the Legislature",
"by section 6 IPC, 1860 enacted that all the definitions must be regarded as subject to",
"the general exceptions. Therefore, general exceptions are part of definition of every",
"offence contained in IPC, 1860, but the burden to prove their existence lied on the",
accused.1.,
The following acts are exempted under the Code from criminal liability:—,
1. Act of a person bound by law to do a certain thing (section 76).,
2. Act of a Judge acting judicially (section 77).,
3. Act done pursuant to an order or a judgment of a Court (section 78).,
"4. Act of a person justified, or believing himself justified, by law (section 79).",
5. Act caused by accident (section 80).,
6. Act likely to cause harm done without criminal intent to prevent other harm,
(section 81).,
7. Act of a child under seven years (section 82).,
"8. Act of a child above seven and under 12 years, but of immature understanding",
(section 83).,
9. Act of a person of unsound mind (section 84).,
10. Act of an intoxicated person (section 85) and partially exempted (section 86).,
11. Act not known to be likely to cause death or grievous hurt done by consent of,
the sufferer (section 87).,
12. Act not intended to cause death done by consent of sufferer (section 88).,
13. Act done in good faith for the benefit of a child or an insane person by or by the,
consent of guardian (section 89).,
14. Act done in good faith for the benefit of a person without consent (section 92).,
15. Communication made in good faith to a person for his benefit (section 93).,
16. Act done under threat of death (section 94).,
17. Act causing slight harm (section 95).,
18. Act done in private defence (sections 96–106).,
"The above exceptions, strictly speaking, come within the following seven categories:—",
"1. Judicial acts (section. 77, 78).",
"2. Mistake of fact (sections 76, 79).",
3. Accident (section 80).,
"4. Absence of criminal intent (sections 81–86, 92–94).",
"5. Consent (sections 87, 90).",
6. Trifling acts (section 95).,
7. Private defence (sections 96–106).,
"Onus of proving exception lies on accused.—When a person is accused of any offence,",
the burden of proving the existence of circumstances bringing the case within any of,
"the general exceptions in the Penal Code, or within any special exception or proviso",
"contained in any other part of the same Code, or in any law defining the offence, is",
"upon him, and the Court shall presume the absence of such circumstances.2.",
Although the law lays down that the onus of proving circumstances which give the,
"benefit of a general exception to an accused person lies on him, and in the absence of",
"evidence the presumption is against the accused, this does not mean that the accused",
"must lead evidence. If it is apparent from the evidence on the record, whether produced",
"by the prosecution or by the defence, that a general exception would apply, then the",
presumption is removed and it is open to the Court to consider whether the evidence,
proves to its satisfaction that the accused comes within the exception.3.,
Applicability of General exceptions during investigation.—In considering that whether,
"accusation made in the complaint makes out a case for commission of offence or not,",
the police while reaching the prima facie satisfaction of suspecting the commission of,
"cognizable offence, cannot ignore the general exception as provided under IPC, 1860",
"as per Chapter IV of IPC, 1860. If on the basis of the allegation made in the complaint,",
"the case is falling in general exceptions, it can be said that the action cannot be termed",
as an offence.4. Investigating officer is bound to investigate and confirm that despite,
"what is contained in the ""General Exceptions""; acts committed by accused shall",
"constitute offence under IPC, 1860. This shall be done, by virtue of section 6 of IPC,",
"1860. In the light of section 6 of IPC, 1860, definition of every offence is to be",
"understood subject to the ""General Exceptions"". Therefore, investigation shall not",
confine merely to the acts committed by a person. Depending on facts and,
"circumstances of each case, many other relevant facts also have to be investigated",
"into, in the light of the provisions contained in ""General Exceptions"". It is only then that",
an investigating officer will be able to confirm whether the act committed by a person,
"is an offence or not, as defined in IPC, 1860 subject to what is contained in ""General",
"Exceptions"". Further, the category of self-defence falling in general exception would fall",
"in a different category than the general exceptions, which are provided in the very",
chapter for exercise of the statutory duty or lawful power either under the mistake of,
law or fact or mistaken belief of law or fact.5.,
[s 84] Act of a person of unsound mind.,
"Nothing is an offence which is done by a person who, at the time of doing it, 1 by",
"reason of unsoundness of mind, 2 is incapable of knowing the nature of the act, or",
that he is doing what is either wrong or contrary to law. 3,
COMMENT.—,
"To commit a criminal offence, mens rea is generally taken to be an essential element of",
"crime. It is said furiosus nulla voluntus est. In other words, a person who is suffering",
from a mental disorder cannot be said to have committed a crime as he does not know,
"what he is doing. For committing a crime, the intention and act both are taken to be the",
constituents of the crime; actus non facit reum nisi mens sit rea. Every normal and sane,
human being is expected to possess some degree of reason to be responsible for,
his/her conduct and acts unless contrary is proved. But a person of unsound mind or a,
person suffering from mental disorder cannot be said to possess this basic norm of,
human behaviour.90.,
"[s 84.1] McNaughten Rule and the origin of Section 84 of IPC, 1860.—",
Section 84 clearly gives statutory recognition to the defence of insanity as developed,
by the Common Law of England in a decision of the House of Lords rendered in the,
"case of R v Daniel McNaughten.91. In that case, the House of Lords formulated the",
"famous Mc Naughten Rules on the basis of the five questions, which had been referred",
to them with regard to the defence of insanity. The reference came to be made in a,
case where Mc Naughten was charged with the murder by shooting of Edward,
"Drummond, who was the Pvt Secretary of the then Prime Minister of England Sir Robert",
"Peel. The accused Mc Naughten produced medical evidence to prove that, he was not,",
"at the time of committing the act, in a sound state of mind. He claimed that he was",
suffering from an insane delusion that the Prime Minister was the only reason for all,
"his problems. He had also claimed that as a result of the insane delusion, he mistook",
Drummond for the Prime Minister and committed his murder by shooting him. The plea,
"of insanity was accepted and Mc Naughten was found not guilty, on the ground of",
insanity. The aforesaid verdict became the subject of debate in the House of Lords.,
"Therefore, it was determined to take the opinion of all the judges on the law governing",
such cases. Five questions were subsequently put to the Law Lords. A comparison of,
"answers to question no. 2 and 3 and the provision contained in section 84 of the IPC,",
1860 would clearly indicate that the section is modelled on that answers.92.,
The essential elements of section 84 are as follows:,
"(i) The accused must, at the time of commission of the act be of unsound mind;",
(ii) The unsoundness must be such as to make the accused at the time when he is,
"doing the act charged as offence, incapable of knowing the nature of the act or",
that he is doing what is wrong or contrary to law.93. Where it is proved that the,
accused has committed multiple murders while suffering from mental,
"derangement of some sort and it is found that there is (i) absence of any motive,",
"(ii) absence of secrecy, (iii) want of pre-arrangement, and (iv) want of",
"accomplices, it would be reasonable to hold that the circumstances are",
sufficient to support the inference that the accused suffered from unsoundness,
of mind.94.,
"Though the onus of proving unsoundness of mind is on the accused,95. yet it has been",
"held that where during the investigation previous history of insanity is revealed, it is the",
duty of an honest investigator to subject the accused to a medical examination and,
"place that evidence before the Court and if this is not done, it creates a serious infirmity",
in the prosecution case and the benefit of doubt has to be given to the accused.96.,
Prosecution is duty bound to subject the accused to a medical examination,
"immediately.97. This onus may, however, be discharged by producing evidence as to the",
conduct of the accused shortly prior to the offence and his conduct at the time or,
"immediately afterwards, also by evidence of his mental condition, his family history and",
so forth.98. Every person is presumed to know the natural consequences of his act.,
Similarly every person is also presumed to know the law. The prosecution has not to,
establish these facts.99.,
There are four kinds of persons who may be said to be non compos mentis (not of,
sound mind): (1) an idiot; (2) one made non compos by illness; (3) a lunatic or a,
madman; and (4) one who is drunk.,
"An idiot is one who is of non-sane memory from his birth, by a perpetual infirmity,",
"without lucid intervals; and those are said to be idiots who cannot count twenty, or tell",
"the days of the week, or who do not know their fathers or mothers, or the like. A person",
made non compos men-us by illness is excused in criminal cases from such acts as,
are-committed while under the influence of his disorder. A lunatic is one who is afflicted,
"by mental disorder only at certain periods and vicissitudes, having intervals of reason.",
"Madness is permanent. Lunacy and madness are spoken of as acquired insanity, and",
idiocy as natural insanity.100.,
[s 84.2] Legal insanity vis-a-vis Medical insanity.—,
A distinction is to be made between legal insanity and medical insanity. A Court is,
"always concerned with legal insanity, and not with medical insanity. What sections 84,",
"IPC, 1860 provides is defence of legal insanity as distinguished from medical insanity.",
A person is legally insane when he is incapable of knowing the nature of the act or that,
what he was doing was wrong or contrary to law.101. Incapacity of the person on,
account of insanity must be of the nature which attracts the operation of section 84,
"IPC, 1860.102. An accused who seeks exoneration from liability of an act under section",
"84 of the IPC, 1860 is to prove legal insanity and not medical insanity. Expression",
"""unsoundness of mind"" has not been defined in the IPC, 1860 and it has mainly been",
treated as equivalent to insanity. But the term insanity carries different meaning in,
different contexts and describes varying degrees of mental disorder. Every person who,
is suffering from mental disease is not ipso facto exempted from criminal liability. The,
"mere fact that the accused is conceited, odd, irascible and his brain is not quite all",
"right, or that the physical and mental ailments from which he suffered had rendered his",
"intellect weak and affected his emotions or indulges in certain unusual acts, or had fits",
of insanity at short intervals or that he was subject to epileptic fits and there was,
abnormal behaviour or the behaviour is queer are not sufficient to attract the,
"application of section 84 of the IPC, 1860.103. The medical profession would",
"undoubtedly treat the accused as a mentally sick person. However, for the purposes of",
"claiming the benefit of the defence of insanity in law, the appellant would have to prove",
"that his cognitive faculties were so impaired, at the time when the crime was",
"committed, as not to know the nature of the act.104. Only legal insanity is contemplated",
"under section 84 of IPC, 1860.105.",
[s 84.3] 42nd Report of Law Commission of India.—,
"Law Commission of India re-visited section 84 of the IPC, 1860 in view of the criticism",
to the M'Naughten Rules in various countries including Britain but came to the,
"conclusion that law of insanity under section 84 of the IPC, 1860 needs no changes in",
Indian circumstances.106.,
Section 84 lays down the legal test of responsibility in cases of alleged unsoundness of,
"mind. There is no definition of ""unsoundness of mind"" in the Penal Code. The Courts",
"have, however, mainly treated this expression as equivalent to insanity. But the term",
"""insanity"" itself has no precise definition. It is a term used to describe varying degrees",
"of mental disorder. So, every person, who is mentally diseased, is not ipso facto",
exempted from criminal responsibility. A distinction is to be made between legal,
"insanity and medical insanity. A Court is concerned with legal insanity, and not with",
"medical insanity.107. In this case, the accused was under medical treatment prior to the",
occurrence. Evidence indicating that he remained mentally fit for about four years after,
treatment. During the trial also he was sent for treatment and his conduct was normal,
"thereafter. On such facts, it was held, that the accused was not entitled to protection",
under section 84. The Court also added that where previous history of insanity of the,
"accused comes to light during investigation, the accused must be medically examined",
and report placed before the Court. Any lapse in this respect would create infirmity in,
the prosecution case and the accused may become entitled to benefit of doubt.,
1. 'At the time of doing it'.—It must clearly be proved that at the time of the committing,
"of the act, the party accused was labouring under such a defect of reason, from",
"disease of the mind, as not to know the nature and quality of the act he was doing, or, if",
"he did know it, that he did not know he was doing what was wrong.108. If he did know it,",
he is responsible.109.,
"In Sheralli Wali Mohammed v State of Maharashtra,110. it was held that:",
"... it must be proved clearly that, at the time of the commission of the acts, the appellant, by",
"reason of unsoundness of mind, was incapable of either knowing the nature of the act or",
"that the acts were either morally wrong or contrary to law. The question to be asked is, is",
"there evidence to show that, at the time of the commission of the offence, he was labouring",
"under any such incapacity? On this question, the state of his mind before and after the",
commission of the offence is relevant.,
The crucial point of time for deciding whether the benefit of this section should be,
given or not is the material time when the offence takes place. If at that moment a man,
is found to be labouring under such a defect of reason as not to know the nature of the,
"act he was doing or that, even if he knew it, he did not know it was either wrong or",
"contrary to law then this section must be applied. In coming to that conclusion, the",
"relevant circumstances, like the behaviour of the accused before the commission of",
"the offence and his behaviour after the commission of the offence, should be taken",
into consideration.111. The accused pushed a child of four years into fire resulting in his,
death but there was nothing to show that there was any deliberateness or preparation,
to commit the crime. His act was accompanied by manifestations of unnatural brutality,
and was committed openly. He neither concealed nor ran away nor tried to avoid,
detection which showed that he was not conscious of his guilt. It was held that the,
accused was entitled to benefit of section 84 and his conviction under section 302 was,
"set aside.112. The accused, a young boy brought up by his grandfather, went abroad for",
further studies. When his parents visited abroad they did not care to see him. His,
"grandfather's death was communicated to him much later. On return to India, he",
committed offences of brutal nature at random. During the pendency of the session's,
"case, he again continued and completed his engineering course and started a printing",
press and later he managed a garage and allied industries employing nearly 30,
persons. His behaviour before and after the offences was that of a normal man. It was,
held that he was insane at the time of the offence and was given benefit of section,
84.113. Where the accused was examined by two doctors who certified him to be,
schizophrenic and his abnormal behaviour was also apparent from the evidence on the,
"record, the Supreme Court held that the acquittal of the accused by the High Court was",
proper.114.,
"In other words, to get the benefit of section 84 IPC, 1860, it must be shown that at the",
time of the commission of the act the accused by reason of unsoundness of mind was,
incapable of either knowing the nature of the act or that the act was either morally,
wrong or contrary to law and for determining this his state of mind before and after the,
commission of the offence is most relevant. It would be dangerous to admit the,
defence of insanity upon arguments derived merely from the character of the crime.115.,
"Thus, the fact that the accused committed the murder over a trifling matter and made a",
clean breast of his crime would not go to show that he was insane.116.,
[s 84.4] Lucid intervals.—,
A lucid interval of an insane person is not merely a cessation of the violent symptoms,
"of the disorder, but a restoration of the faculties of the mind sufficiently to enable the",
person soundly to judge the act; but the expression does not necessarily mean,
"complete or perfect restoration of the mental faculties to their original condition. So, if",
"there is such a restoration, the person concerned can do the act with such reason,",
memory and judgment as to make it a legal act; merely a cessation of the violent,
symptoms of the disorder is not sufficient.117.,
"2. 'Unsoundness of mind.'—Whether the want of capacity is temporary or permanent,",
"natural or supervening, whether it arises from disease, or exists from the time of birth,",
it is included in this expression. It is only 'unsoundness of mind' which naturally impairs,
the cognitive faculties of the mind that can form a ground of exemption from criminal,
responsibility.118. The nature and extent of the unsoundness of mind required being,
"such as would make the offender incapable of knowing the nature of the act, or that he",
"is doing what is wrong or contrary to law.119. Thus, as Stephen says that if a person",
cuts off the head of a sleeping man because 'it would be great fun to see him looking,
"for it when he woke up', it would obviously be a case where the perpetrator of the act",
would be incapable of knowing the physical effects of his act.120. The accused had,
killed his wife and his minor children and assaulted his neighbour and the police officer.,
The evidence showed that he had a history of insanity with at random assault on,
strangers but his relations with his wife were cordial. It was held that the accused was,
"a man of unsound mind and his conviction under sections 302, 332 and 323 was set",
aside.121. The accused caught hold of the legs of a girl of two years of age on the road,
and struck her on the ground. She sustained head injury and died in the hospital. On the,
basis of the ocular evidence about the conduct of the accused at the time of the,
"offence and the opinion of the doctor about his state of mind, the accused was",
"acquitted on the ground of insanity.122. The accused, a labourer, killed his brother's wife",
and attempted to kill his mother in a quarrel over money deposited with his mother.,
"Accused assaulted with axe on the vital parts of the victim's body, absconded for three",
months and immediately after the incident worked as a labourer in another village for,
"15 days. It was held that the conduct of the accused immediately before, at the time of",
"and after the incident, was wholly inconsistent with the plea of insanity raised by him.",
The history of earlier mental derangement was not by itself sufficient to bring the case,
within section 84.123. Where on the day of the crime the accused was seen dancing,
"with a dog on his head and with a broken bottle, but the medical evidence showed that",
"he was a normal man, it was held that defence of insanity was an afterthought.124. The",
mere fact that the accused attempted to escape from the scene of occurrence after,
"killing his wife, belied his plea of insanity.125. Where a father and his relatives sacrificed",
"a four-year-old son to propitiate the deity, the Supreme Court held that this does not by",
itself constitute insanity. Such primitive and inhuman actions must be punished,
severely so as to deter others from resorting to such barbaric practices.126.,
[s 84.5] Partial delusion.—,
Mere abnormality of mind or partial delusion affords no protection under section 84,
"IPC, 1860.127. Whether a person who, under an insane delusion as to the existing facts,",
"commits an offence in consequence thereof, is to be, therefore, excused depends upon",
"the nature of the delusion. If he labours under a partial delusion only, and is not in other",
"respects insane, he must be considered in the same situation as to responsibility as if",
"the facts, with respect to which the delusion exists, were real.128. If a person afflicted",
"with insane delusion, in respect of one or more particular subjects or persons, commits",
"a crime, knowing that he was acting contrary to law, but did the act complained of with",
"a view, under the influence of insane delusion, of redressing or revenging some",
"supposed grievance or injury, or of producing some public benefit, he is nevertheless",
punishable according to the nature of the crime committed.129. Where the accused,
after killing his daughter tried to commit suicide and there was no evidence of,
"psychiatric treatment but only major depression, he was held liable to be convicted.130.",
"3. 'Nature of the act, or...what is either wrong or contrary to law.'—If the accused were",
conscious that an act was done which he ought not to do and if the act was at the,
"same time contrary to the law of the land, he is punishable. His liability will not be",
diminished if he did the act complained of with a view under the influence of insane,
delusion of redressing or revenging some supposed grievance or injury or of producing,
"some public benefit, if he knew that he was acting contrary to law.131. Where the",
"accused, a young man, took a girl of four years on a bicycle to a lonely place near a",
"canal, sexually assaulted her and threw her into the canal, it was held that it was a",
carefully thought out action and not an act of an insane person.132.,
"Mere absence of motive for a crime, howsoever atrocious it may be, cannot, in the",
"absence of plea and proof of legal insanity, bring the case within this section.133. The",
mere fact that an act of murder is committed by the accused on a sudden impulse and,
there is no discoverable motive for the act will not generally afford the Court sufficient,
"basis for accepting the plea of insanity.134. Thus, in SW Mohammed's case the",
Supreme Court held that the mere fact that no motive has been proved why the,
accused murdered his wife and child or the fact that he made no attempt to run away,
when the door was broken open would not indicate that he was insane or that he did,
"not have the necessary mens rea for the offence.135. In a Madras case, however, the",
Madras High Court has held that where the accused was insane for some months prior,
to occurrence and on cordial terms with his wife but suddenly killed the wife in the,
open courtyard without any ostensible motive and did not even attempt to run away or,
"secret his crime, he had to be given the benefit of section 84, IPC, 1860.136. This case",
"can, of course, be distinguished from the above mentioned Supreme Court case on the",
ground that in the instant case the accused had previous history of insanity which was,
not fully cured. Prior or subsequent treatment for schizophrenia coupled with the,
evidence of the doctor that the accused was schizophrenic would entitle the accused,
to the benefit of section 84 in a charge of murder.137. But where the doctor in his,
evidence merely said unsoundness of mind may have existed from before and that,
evidence was contradicted by evidence of close relations about sanity of the accused,
"at the time of the occurrence, it was held that the accused could not get the benefit of",
"section 84, IPC, 1860.138. There is a difference between medical insanity and legal",
insanity. By medical insanity is meant the prisoner's consciousness of the bearing of,
his act on those affected by it and by legal insanity is meant the prisoner's,
consciousness in relation to himself.139. There can be no legal insanity unless the,
cognitive faculties of the accused are as a result of unsoundness of mind completely,
impaired. In order to constitute legal insanity unsoundness of mind must be such as to,
"make the offender incapable of knowing the nature of the act, or that he is doing what",
"is wrong or contrary to law.140. Thus, mere abnormality of mind or partial delusion,",
irresistible impulse or compulsive behaviour of a psychopath affords no protection,
"under section 84 of the IPC, 1860 as the law contained in that section is still squarely",
"based on the outdated M'Naughten Rules of 19th Century England. Thus, in",
Siddheswari's case141. where the accused killed her ailing child of three and there was,
also some evidence elicited in cross-examination to show that the accused had,
"suffered from some mental derangement two years prior to the incident, it was held",
"that the mere fact the murder was committed on a sudden impulse or as a ""mercy",
"killing"" was no ground to give her the benefit of section 84 IPC, 1860, even though both",
euthanasia (mercy killing) and irresistible impulse would entitle the accused in England,
to get the benefit of diminished responsibility and her crime would be treated as,
manslaughter (i.e. culpable homicide not amounting to murder). In a latter case too the,
Gauhati High Court felt that where the accused has made out a prima facie case of,
irresistible impulse the plea has to be taken into consideration in deciding the question,
"of giving benefit of section 84, IPC, 1860, to the accused.142.",
"The position, however, has undergone a sea change in England where the right or",
wrong test of the M'Naughten Rules no longer dominate this branch of criminal law to,
the exclusion of mental abnormality falling short of complete insanity as a limited,
"defence establishing a claim to diminished responsibility. Thus, under section 2 of the",
"Homicide Act, 1957 if two Psychiatrists certify that the homicidal act of the accused",
was influenced by abnormal condition of his mind though not amounting to legal,
"insanity within the meaning of M'Naughten Rules, still he cannot be convicted of",
murder but his offence will be regarded only as a manslaughter which is equivalent to,
"culpable homicide not amounting to murder under the IPC, 1860. It is hoped that the",
Indian law too would be changed on this score with due regard to the modern,
developments in the field of psychology of criminal behaviour.,
[s 84.6] CASES.—,
"Accused, who was a mentally challenged person before the incident, killed three",
persons and caused injuries to others with an axe. He did not know the implication of,
"his act and indiscriminately went on wielding axe blows, be it a child or a woman and",
there after he did not even attempt to hide the weapon which he used for committing,
crime. He was found of unsound mind in his medical examination. Case of accused,
"comes within the four corners of section 84 IPC, 1860.143. Where an accused, who was",
suffering from fever which caused him while suffering from its paroxysms to be,
"bewildered and unconscious, killed his children at being annoyed at their crying, but he",
"was not delirious then, and there was no evidence to show that he was not conscious",
"of the nature of his act, it was held that he was not entitled to protection under this",
section.144. But where the accused labouring under a delusion believed his two-month-,
"old infant child to be a devil and danger to himself, his family and to the whole world",
"and, therefore, killed the child with unusual ferocity almost reducing it to a pulp and",
thereafter without making any attempt to escape told the police party that he had,
"removed a devil from the world, it was held that the accused did not know that what he",
"had done was wrong and as such was entitled to get protection of section 84, IPC,",
"1860, even when he did not plead insanity in his defence as the prosecution itself",
"disclosed that he was insane.145. IPC, 1860Allegation that accused appellant had cut",
"his son, aged about one and a half years, to death and he was intercepted while he was",
preparing to bury the dead body by digging a pit. Medical evidence shows that the,
accused was suffering from schizophrenia. Accused was reticent by nature and used,
to keep himself indoors and interact only when he was compelled to do so. He was not,
in a normal state of mind at the time of alleged crime. Appellant is entitled to the,
"benefits under section 84 of IPC, 1860.146. The accused killed three persons and",
caused injuries to others and there was no previous enmity or motive established. The,
witnesses stated that he ran from one place to other and on his way he assaulted five,
persons indiscriminately without any rhyme or reason. The evidence shows that,
appellant had developed insanity since long and entitled to the benefit of this,
"section.147. Accused chopped off his wife's head, with a chopper. After the occurrence,",
"in a very unusual and abnormal manner, holding the head and the chopper in each of",
"his hands, he walked down the road and ultimately reached the police station. Though",
"this, by itself, would not be sufficient to come to any conclusion but taken along with",
the other circumstances of the case would clearly point to the validity of the defence,
put forward on behalf of the accused.148.,
"[s 84.7] Epilepsy, Epileptic fits and Section 84.—",
"Epilepsy usually occurs from early infancy, though it may occur at any period of life.",
"Individuals, who have had epileptic fits for years, do not necessarily show any mental",
"aberration, but quite a few of them suffer from mental deterioration. Religiosity is a",
"marked feature in the commencement, but the feeling is only superficial. Such patients",
"are peevish, impulsive and suspicious, and are easily provoked to anger on the slightest",
cause. Epileptic psychosis is that which is associated with epileptic fits. This may,
"occur before or after the fits, or may replace them, and is known as pre- epileptic, post-",
epileptic and masked or psychic phases (psychomotor epilepsy).149.,
Where the accused committed the murder without any motive under the influence of an,
"epileptic fits, he was entitled to get the benefit under section 84, IPC, 1860.150. But if at",
"the time of the crime he was not acting under epileptic automatism, mere past history",
of epilepsy will not absolve the accused from liability.151.,
[s 84.8] Irresistible impulse.—,
"Mere abnormality of mind or partial delusion, irresistible impulse or compulsive",
behaviour of a psychopath affords no protection under section 84 as the law contained,
in that section is still squarely based on the outdated M'Naughten Rules of 19th,
Century. The provisions of section 84 are in substance the same as those laid down in,
"the answers of the Judges to the questions put to them by the House of Lords, in",
"M'Naughten's case. Behaviour, antecedent, attendant and subsequent to the event, may",
"be relevant in finding the mental condition of the accused at the time of the event, but",
not that remote in time.152.,
[s 84.9] Nervousness.—,
The fact that the accused became nervous after raping a six-year-old girl and in that,
"state of mind killed her, was held to be not sufficient to establish insanity. The Court",
reduced the death sentence to life imprisonment and added that nervous psychosis,
may become in circumstances a kind of insanity.153.,
[s 84.10] Homicide by ' ganja ' smoker.—,
"In a case of ganja addict before the Supreme Court, the accused had killed his wife and",
children ranging one –16 years with knife. Death sentence was confirmed by the High,
Court. The accused had not raised the defence of unsoundness in Courts below. The,
Supreme Court got the enquiry conducted by police after a plea was raised at the SLP,
stage. The enquiry report and evidence of family members and other witnesses,
revealed the addiction and on-going treatment. He was not allowed the benefit of,
section 84. The state of mind on the day of the incident is the crucial factor. The State,
of mind on other days is relevant only if such evidence would help determining the,
state of mind at the crucial moment.154.,
[s 84.11] Insane delusion.—,
The accused killed two women by cutting their necks with an axe without any reason.,
Evidence showed that he suffered from similar attacks of disorder earlier too. After the,
incident he was heard saying that he was haunted by a God to do what he did. The plea,
of insanity was accepted and the accused was directed to be kept in a mental,
hospital.155. The accused killed seven persons including his wife and two children with,
an axe. He also killed the cattle which came his way. There was no provocation. It was,
brutality simpliciter. The evidence on record showed that he was not of sound mind.,
The death sentence awarded to him was set aside. He was acquitted under the benefit,
"of this section.156. Mere abnormality or partial delusion, irresistible impulse or",
compulsive behaviour of a psychopath affords no protection under section 84 of the,
Penal Code.157.,
[s 84.12] Paranoid schizophrenia.—,
"Paranoid schizophrenia, in the vast majority of cases, starts in the fourth decade and",
develops insidiously. Suspiciousness is the characteristic symptom of the early stage.,
"Ideas of reference occur, which gradually develop into delusions of persecution.",
"Auditory hallucinations follow which in the beginning, start as sounds or noises in the",
"ears, but afterwards change into abuses or insults.158. In paranoid schizophrenia, the",
person affected lives in a state of constant fear being haunted by the belief that he is,
"being poisoned, some noxious gases are blown into his room and that all are plotting",
against him to ruin him. The patient gets very irritated and excited owing to equally,
painful and disagreeable hallucinations and delusions.159. The accused was convicted,
for having murdered his wife in a brutal manner. He raised the plea of insanity. It came,
out from evidence that he was suffering from leprosy and insanity from sometime past.,
The medical opinion was that he was suffering from paranoid schizophrenia which is a,
form of paranoid psychosis. The plea was allowed. But he being not in a fit state of,
"mind to judge his own welfare or take care of himself without medical aid, the Court",
directed him to be detained in safe custody under medical supervision and not to be,
released till medical evidence of social fitness.160. The evidence on record shows that,
"on the day of the incident, when the appellant was examined by doctors, he was found",
to be suffering from paranoid schizophrenia. He had delusions and persecutory ideas,
"with no insight in his illness. From this, an inference can reasonably be drawn that the",
accused was under paranoid delusions at the time that he committed the offence.161.,
[s 84.13] Burden of proof.—,
The Supreme Court defined the doctrine of burden of proof in the context of the plea of,
insanity in the following propositions:-,
"""(1) The prosecution must prove beyond reasonable doubt that the appellant had",
committed the offence with the requisite mens rea; and the burden of proving,
that always rests on the prosecution from the beginning to the end of the trial.,
"(2) There is a rebuttable presumption that the appellant was not insane, when he",
"committed the crime, in the sense laid down by section 84 of the IPC, 1860: the",
"appellant may rebut it by placing before the court all the relevant evidence - oral,",
"documentary or circumstantial, but the burden of proof upon him is no higher",
than that rests upon a party to civil proceedings.,
(3) Even if the appellant was not able to establish conclusively that he was insane,
"at the time he committed the offence, the evidence placed before the court by",
the appellant or by the prosecution may raise a reasonable doubt in the mind of,
"the court as regards one or more of the ingredients of the offence, including",
mens rea of the appellant and in that case the court would be entitled to acquit,
the appellant on the ground that the general burden of proof resting on the,
"prosecution was not discharged"".162.",
"It has been held that merely because an injured witness, who may legitimately be",
"classified as an interested witness for obvious reasons, may have stated that the",
"appellant was not of unsound mind, cannot absolve the primary duty of the prosecution",
to establish its case beyond all reasonable doubt explaining why the plea for,
unsoundness of mind taken by the accused was untenable.163.,
The burden of proving the existence of circumstances bringing the case within the,
purview of section 84 lies upon the accused under section 105 of the Indian Evidence,
"Act. Under the said section, the Court shall presume the absence of such",
circumstances.164. But the burden on the accused cannot be equivalent with the,
burden of proof on the prosecution and cannot be rated higher than the burden on a,
party to a civil proceeding where a finding can be based upon preponderance of,
probabilities. There is no conflict between the general burden which is always on the,
prosecution and which never shifts and the special burden which rests on the accused,
to make out the defence of insanity.165. Sometimes the facts may in themselves be,
sufficient to discharge the burden which lies on the accused. This possibility was,
recognised by the Supreme Court in Ratan Lal v State of MP.166. The accused-appellant,
was kept in police custody for ten days and only then it was felt that he needed medical,
examination. There was no evidence on record to show what his condition was during,
those ten days and why he was not examined earlier. This conduct on the part of the,
"police, neither to arrange his examination nor permit him to do so, brought about such",
a gap of time between the incident and examination that his condition at the time of,
the incident was no longer capable of being precisely determined. As against this,
"police inaction, the defence pointed towards the conduct of the accused before the",
incident and some statements of witnesses which supported the instable condition of,
the accused. This was held to be sufficient to discharge the burden which lies on the,
accused and his acquittal was upheld by the Supreme Court. Going by this case in,
"Tukappa Tamanna Lingardi v State of Maharashtra,167. the Bombay High Court found",
evidence of insanity from a narration of the facts themselves. Mere oral statements of,
witnesses cannot give rise to an inference that the appellant was of unsound mind at,
the time of commission of offence. Plea of the accused does not come within,
"exception contemplated under section 84 of IPC, 1860.168. IPC, 1860",
Where there was no satisfactory evidence of the previous history of the accused or his,
subsequent conduct and the only fact on record was that ghastly murders were,
"committed without motive, it was held that the burden of proof as to plea of insanity",
"was not discharged. However, because of the absence of motive, premeditation and",
"any weapon, killings being done with stone pieces, death sentence was converted into",
"life imprisonment.169. Where, on the other hand, a father killed his son and then danced",
"around, moving towards his house threatening others, facts spoke for themselves so",
"as to discharge the burden of proof as to insanity, the accused was acquitted and",
ordered to be detained in a mental home.170.,
"Mere eccentric behaviour, like drowning one's own two and a half-year-old child to",
"death, does not discharge this burden which is essentially on the accused and requires",
him to show all the ingredients of the defence to the extent at least of making them,
probable at the time of the commission of the act. Previous history and subsequent,
conduct are only relevant facts in the determination of the condition at the material,
time.171.,
The mere absence of motive is not sufficient to bring the case within the scope of,
section 84.172.,
[s 84.14] Sentencing.—,
"The accused was charged with offences under sections 427, 302, 307, 451, etc.",
Medical evidence showed that he was a person of unsound mind at the time when the,
"offences were committed. The accused, therefore, could not be detained in prison. He",
was directed to be put in a mental hospital. The authorities were further directed to,
"follow the procedure prescribed by section 335, Code of Criminal Procedure, 1973 (Cr",
"PC, 1973).173.",
[s 84.15] Sentencing.—Battered woman syndrome.—,
The accused woman pleaded guilty to manslaughter on an indictment for murder. She,
was a young woman aged 20. She began a sexual relationship with the deceased when,
she was 14 and began to live with him when she was 16. She had a miscarriage and on,
two occasions took overdoses. The deceased became violent towards her two or three,
times each week. She sought psychiatric help and on two occasions came to the,
attention of the police. In 1998 she decided to end the relationship and there was an,
argument which developed into a fight. She picked up a knife and waved it at the,
"deceased, telling him to leave. There was a further struggle during the course of which",
the deceased received a fatal knife wound to his back. She immediately shouted for,
"help and was found in an extremely distressed condition. When she was examined, she",
was found to be extensively bruised. A psychiatrist who examined her found that she,
"exhibited a number of features of the ""battered woman's syndrome"", including chronic",
"depressive illness, a feeling of hopelessness and despair, and inability to act effectively",
"or to see an escape from her situation, and feelings of self-blame, shame and a poor",
sense of self-worth. A second psychiatrist found a degree of clinical depression which,
amounted to abnormality of mind. She was sentenced to four years' detention in a,
young offender institution. Her appeal against the sentence was allowed. In the light of,
"the evidence, the Court reached the conclusion that there were in the present case",
those exceptional circumstances which would allow the Court to take the unusual,
course of passing a sentence other than custody. The accused woman had been,
subject from a young age to persistent and prolonged violence from a man older than,
herself who was domineering and demanding. Since her arrest she had made,
"remarkable progress, and a custodial sentence would be likely to damage and possibly",
bring to an end that rehabilitation. She had served the equivalent of a sentence of 12,
months and it was appropriate to give her the opportunity to continue her progress. The,
Court accordingly quashed the sentence of four years' detention in a young offender,
institution and substituted a probation order.174.,
[s 84.16] CASES.—Defence not made out.—,
"Accused came to the house one day prior to the occurrence, demanded money and",
"threatened the deceased of grave consequences and on the next day, when the",
"demand was not fulfilled, he trespassed into the house, pushed away PWs 1 and 2,",
bolted the door from inside and inflicted repeated aruval blows on the deceased that,
"resulted into her death. All these aspects also show that at the relevant time, he was",
not insane as claimed by him.175. Accused committed murder of two persons,
andcaused injuries to another. Testimony of witnesses was found cogent and reliable,
and there was no material on the basis of which it could be inferred that at the time of,
commission of offence the accused was of unsound mind to such an extent that by,
"reason of such unsoundness, he was incapable of knowing the nature of the act or",
"knowing that he was doing what was either wrong or contrary to law, plea of insanity",
rejected.176. Mere taking treatment earlier in Mental Hospital itself is not sufficient,
proof of total insanity of person.177.,
The accused killed his wife and daughter with an axe. He attended Kirtan (rendering of,
religious hymns) a night before. He carried the corpses in a hand-cart and made his,
statement before the police. His confessional statement was recorded by a competent,
judicial magistrate. He found no noticeable abnormality of mind or mental,
"disorderliness. Even on his examination under section 313, Cr PC, 1973, he showed a",
soundness of mind. It was held that he was not entitled to the benefit of section 84.178.,
[s 84.17] When to be pleaded.—,
The plea cannot be raised for the first time before the Supreme Court for which no,
foundation was established before.179.,
[s 84.18] Investigation of offence vis-à-vis the general exceptions–,
The duty cast upon the investigating officer to investigate into the mental condition of,
"the accused is very important. The Supreme Court held that, where during the",
"investigation previous history of insanity is revealed, it is the duty of an honest",
investigator to subject the accused to a medical examination and place that evidence,
"before the Court and if this is not done, it creates a serious infirmity in the prosecution",
case and the benefit of doubt has to be given to the accused.180. The Division Bench of,
High Court of Kerala observed that even if all the acts constituting an offence as per,
"definition in IPC, 1860 are committed by a person, if an investigating officer finds on",
"investigation that by reason of unsoundness of mind, accused was incapable of",
"knowing the nature of the act, or that he was doing what is either wrong or contrary to",
"law, as stated in Section 84 IPC, 1860, he shall not file a charge sheet against such",
person.181. The Court also held that the investigating officer is bound to investigate,
"and confirm that despite what is contained in the ""General Exceptions"", acts committed",
"by accused shall constitute offence under IPC, 1860.182. But the Single Bench of the",
"High Court of Kerala, later, held that the ingredients of section 84 can only be taken as",
a defence during trial and it is not possible to throw out the Final Report in a case on,
the ground that the concerned accused was suffering from legal insanity.183.,
[s 84.19] Procedure.—,
"Chapter XXV of Cr PC, 1973 deals with provisions as to accused persons of unsound",
mind.184.,
"1. Shankar Narayan Bhadolkar v State of Maharashtra, AIR 2004 SC 1966 [LNIND 2004 SC 1370] :",
2004 Cr LJ 1778 : (2005) 9 SCC 71 [LNIND 2004 SC 1370] .,
"2. The Indian Evidence Act, I of 1872, section 105.",
"3. Musammat Anandi, (1923) 45 All 329 ; Babulal, 1960 Cr LJ 437 (All).",
"4. A K Chaudhary v State of Gujarat, 2006 Cr LJ 726 (Guj).",
"5. A K Chaudhary v State of Gujarat, 2006 Cr LJ 726 (Guj).",
"90. State of Rajasthan v Shera Ram, (2012) 1 SCC 602 [LNIND 2011 SC 1192] : AIR 2012 SC 1",
[LNIND 2011 SC 1192] : (2012) 1 SCC (Cr) 406.,
"91. R v Daniel McNaughten, 1843 RR 59 : 8ER 718 (HL).",
"92. Sudhakaran v State of Kerala, (2010) 10 SCC 582 [LNIND 2010 SC 1046] : AIR 2011 SC 265",
[LNIND 2010 SC 1046] : 2011 Cr LJ 292 .,
"93. State of Maharashtra v Govind Mhatarba Shinde, 2010 Cr LJ 3586 (Bom).",
"94. State of Orissa v Duleswar Barik, 2008 Cr LJ 1065 (Ori) relied on ShamaTudu v State, 1987 Cr",
LJ 618 (Ori).,
"95. Dahyabhai, 1964 (2) Cr LJ 472 (SC); Lonimohon Das, 1974 Cr LJ 1186 (Gau); Gunadhar",
"Mondal, 1979 Cr LJ NOC 178 (Cal); Kesheorao, 1979 Cr LJ 403 (Bom); Lala Sk., 1983 Cr LJ 1675",
"(Cal); Balu Ganpat, 1983 Cr LJ 1769 (Bom); Paramal Raman v State of Kerala, 1992 Cr LJ 176 Ker;",
"Bai Bamilaben v State of Gujarat, 1991 Cr LJ 2219 Guj; Shama Tudu v State, 1987 Cr LJ 618",
"Orissa; Sheralli Walli Md v State of Maharashtra, AIR 1972 SC 2443 : 1972 Cr LJ 1523 ; Qyami",
"Ayatu v State of MP, AIR 1974 SC 216 [LNIND 1973 SC 242] : 1974 Cr LJ 305 . In Shama Tudu v",
"State, 1987 Cr LJ 618 , the Orissa High Court cited the following cases in which the plea of",
"insanity was accepted : Mitu Khadia v State of Orissa, 1983 Cr LJ 385 : 1983 Cut LR (Cr) 108;",
"Khageshwar Pujari v State of Orissa, 1984 Cr LJ 1108 : 1984 (1) Ori LR 142 ; Sundar Bairagi v",
"State, 1984 Cr LJ 124 ; Bata v State, 1985 (2) Ori LR 398 . The plea was negatived in the",
"following cases; Nakul Chandra v State of Orissa, 1982 Cr LJ 2158 : (1982) 54 Cut LJ 195; Kusa",
"Majhi v State, (1985) 59 Cut LT 203 : 1985 (1) Crimes 520 : 1985 Cr LJ 1460 : AIR 1985 SC 1409",
"[LNIND 1985 SC 227] . State of MP v Digvijay Singh, AIR 1981 SC 1740 [LNIND 1978 SC 324] :",
"1981 Cr LJ 1278 , prosecution case proved.",
"96. Siddhapal Kamala Yadav, AIR 2009 SC 97 [LNIND 2008 SC 1992] : (2009) 1 SCC 124 [LNIND",
"2008 SC 1992] ; Sanna Eranna, 1983 Cr LJ 619 (Kant); M Parvaiah, 1985 Cr LJ 1824 (AP);",
"Kuttappan, 1986 Cr LJ 271 (Ker).",
"97. State of Maharashtra v Govind Mhatarba Shinde, 2010 Cr LJ 3586 (Bom).",
"98. State of Maharashtra v Govind Mhatarba Shinde, 2010 Cr LJ 3586 (Bom).",
"99. Bhikari, AIR 1966 SC 1 [LNIND 1965 SC 57] . Absence of motive is one of the factors to be",
"taken into account. Subbigadu v Emperor, AIR 1925 Mad 1238 [LNIND 1925 MAD 157] : 1926",
"(27) Cr LJ 46 ; Ujagar Singh v State, AIR 1954 PEPSU 4 : 1953 Cr LJ 1859 . But this is only one",
"factor among others. See Amrit Bhushan Gupta v UOI, AIR 1977 SC 608 [LNIND 1976 SC 458] :",
"1977 Cr LJ 376 ; Ram Bharose v State of MP, 1974 Jab LJ 348 ; Peeru Singh v State of MP, 1987",
Cr LJ 1781 MP.,
"100. Bapu v State of Rajasthan, (2007) 8 SCC 66 [LNIND 2007 SC 774] : JT 2007 (9) SC 110 :",
2007 AIR (SCW) 3808 : 2007 (7) SCR 917 [LNIND 2007 SC 774] : (2007) 8 Scale 455 [LNIND,
2007 SC 774] : (2007) 3 SCC (Cr) 509.,
"101. Kuttappan v State of Kerala, 1986 Cr LJ 271 (Ker).",
"102. Siddhapal Kamala Yadav, AIR 2009 SC 97 [LNIND 2008 SC 1992] : (2009) 1 SCC 124",
[LNIND 2008 SC 1992] .,
"103. Surendra Mishra v State of Jharkhand, AIR 2011 SC 67 : (2011) 11 SCC 495 [LNIND 2011 SC",
27] : (2011) 3 SCC(Cr.) 232.,
"104. Sudhakaran v State of Kerala, (2010) 10 SCC 582 [LNIND 2010 SC 1046] : AIR 2011 SC 265",
[LNIND 2010 SC 1046] : 2011 Cr LJ 292 .,
"105. State of Maharashtra v Govind Mhatarba Shinde, 2010 Cr LJ 3586 (Bom).",
106. Available at : http://lawcommissionofindia.nic.in/1-50/Report42.pdf (last accessed in July,
2019).,
"107. Bapu v State of Rajasthan, (2007) 8 SCC 66 [LNIND 2007 SC 774] : (2007) 3 SCC (Cr) 509 :",
(2007) 4 KLT 63 [LNIND 1985 KER 300] .,
"108. Third question and answer in M'Naughton's case, (1843) 4 St Tr (NS) 847, 10 Cl & F 200;",
"Tola Ram, (1927) 8 Lah 684. Jaganath Das v State, 1991 Cr LJ (NOC) 32 Cal.",
"109. Harka v State, (1906) 26 AWN 193. Hari Singh Gond v State of MP, (2008) 16 SCC 109",
[LNIND 2008 SC 1728] : AIR 2009 SC 31 [LNIND 2008 SC 1728] : 2009 Cr LJ 346 : (2008) 3 KLT,
"969 [LNIND 2008 SC 1728] , Mere abnormality of mind, partial delusion, irresistable impulse or",
compulsive psychopathic behaviour affords no protection under section 84. It is only,
unsoundness of mind which naturally impairs the cognitive faculties of mind which can justify,
"exemption under section 84. Bapu v State of Rajasthan, (2007) 8 SCC 66 [LNIND 2007 SC 774] ,",
"time factor, time of the offence is crucial.",
"110. Sheralli Wali Mohammed v State of Maharashtra, (1973) 4 SCC 79 : 1972 Cr LJ 1523 .",
"111. Govindaswami Padayachi, (1952) Mad 479; Ahmadullah, (1961) 3 SCR 583 [LNIND 1961 SC",
"29] : (1961) 2 Cr LJ 43 : AIR 1961 SC 998 [LNIND 1961 SC 29] ; Dahyabhai, AIR 1964 SC 1563",
"[LNIND 1964 SC 88] : 1964 (2) Cr LJ 472 ; followed in Narain v State, 1991 Cr LJ 1610 All, the",
"accused murdering the Imam of a masjid, acquitted because of proven insanity. AG Bhagwat v",
"UT Chandigarh, 1989 Cr LJ 214 P&H, no insanity at the time of attack.",
"112. Ajaya Mahakud v State of Orissa, 1993 Cr LJ 1201 (Ori).",
"113. S Sunil Sandeep v State of Karnataka, 1993 Cr LJ 2554 (Kant).",
"114. State of Punjab v Mohinder Singh, (1983) 2 SCC 274 : 1983 SCC (Cr) 402 : 1983 Cr LR (SC)",
"187 . In a similar acquittal, the HP High Court ordered that the accused be confined to mental",
"hospital so that he would pose no danger to public. Krishan Dutt v State of HP, 1992 Cr LJ 1065",
HP.,
"115. SW Mohammed, 1972 Cr LJ 1523 : AIR 1972 SC 2443 .",
"116. Oyami Ayatu, 1974 Cr LJ 305 : AIR 1974 SC 216 [LNIND 1973 SC 242] . See also Gunadhar",
"Mondal, 1979 Cr LJ NOC 178 (Cal), Kesheorao 1979 Cr LJ 403 (Bom). Basanti v State, 1989 Cr LJ",
"415 (Ori), woman jumped into well with her children, rescued, voluntarily explaining her conduct,",
"no insanity. Parapuzha Thamban v State of Kerala, 1989 Cr LJ 1372 (Ker); Munilal Gupta v State,",
"1988 Cr LJ 627 (Del); Meh Ram v State, 1994 Cr LJ 1897 (Raj).",
"117. Bapu v State of Rajasthan, (2007) 8 SCC 66 [LNIND 2007 SC 774] : (2007) 3 SCC (Cr) 509 :",
(2007) 4 KLT 63 [LNIND 1985 KER 300] .,
"118. Kader Hasyer Shah, (1896) 23 Cal 604 , 607; Kalicharan, (1947) Nag 226.",
"119. Gedka Goala, (1937) 16 Pat 333.",
"120. Stephen : History of the Criminal Law, vol II, p 166.",
"121. Raghu Pradhan v State of Orissa, 1993 Cr LJ 1159 (Ori).",
"122. Brushabha Digal v State of Orissa, 1993 Cr LJ 3149 (Ori).",
"123. Ashok Dattatraya v State of Maharashtra, 1993 Cr LJ 3450 (Bom).",
"124. Amruta v State of Maharashtra, 1996 Cr LJ 1416 (Bom).",
"125. Tola Ram v State of Rajasthan, 1996 Cr LJ 8 (Raj). For a case of pretended insanity, see",
"Nathu Bapu Mhaskar v State of Maharashtra, 1996 Cr LJ 2121 (Bom).",
"126. Paras Ram v State of Punjab, (1981) 2 SCC 508 : 1981 SCC (Cr) 516. Gulab Manik Surwase v",
"State of Maharashtra, 2001 Cr LJ 4302 (Bom) the conduct of assaulting his wife in broad day",
"light within the sight of his relatives and leaving behind the blood stained axe on the spot, the",
"Court said, was a sign of abnormalcy. The accused was given the benefit of doubt. Laxmandas",
"Mangaldas Manikpuri v State of Maharashtra, 1997 Cr LJ 950 (Bom), no trace of insanity in the",
conduct of the accused either before or after killing his wife. Defence under section 84 not,
available.,
"127. Marimuthu v State, 2009 Cr LJ 3633 (Mad).",
"128. Fourth question and answer in M'Naughton's case (1843) 4 St Tr (NS) 847; Ghatu Pramanik,",
(1901) 28 Cal 613 .,
"129. First question and answer in M'Naughton's case, sup. Durga Domar v State of MP, (2002) 10",
"SCC 193 , the accused killed in ferocious manner 5 children belonging to his close relatives,",
"Courts below sentenced him to death, he could not engage a counsel. In this state of things, the",
judicial conscience of the Supreme Court compelled it to seek medical opinion regarding the,
mental condition of the accused.,
"130. Madesh v State by The Inspector of Police, 2014 Cr LJ 96 (Mad).",
"131. M'Naughton's case, (1843) 4 St Tr (NS) 847, 10 Cl & F 200.",
"132. State of Maharashtra v Umesh Krishna Pawar, 1994 Cr LJ 774 (Bom).",
"133. Kalicharan, (1947) Nag 226.",
"134. Ganesh Shrawan, (1969) 71 Bom LR 643 .",
"135. SW Mohammed, 1972 Cr LJ 1523 : AIR 1972 SC 2443 . See also Mitu Khadia, 1983 Cr LJ",
1385 (Ori).,
"136. In the matter of Lakshman, 1973 Cr LJ 110 (Mad).",
"137. Prakash, 1985 Cr LJ 196 (Bom). Krishan Dutt v State of HP, 1992 Cr LJ 1065 (HP), medical",
"evidence and manner of commission showed insanity, acquittal.",
"138. Velusamy, 1985 Cr LJ 981 (Mad).",
"139. Baswant Rao, (1948) Nag 711.",
"140. Sukru Sa, 1973 Cr LJ 1323 (Ori); Kesheorao, 1979 Cr LJ 403 (Bom); Lala Sk, 1983 Cr LJ",
"1675 (Cal); Rajan v State, 1984 Cr LJ 874 (Ker); Kusa Majhi, 1985 Cr LJ 1460 (Ori). Sudhir Ch",
"Biswas v State, 1987 Cr LJ 863 Cal.",
"141. Siddheswari Bora, 1981 Cr LJ 1005 (Gau).",
"142. State of Assam v Inush Ali, 1982 Cr LJ 1044 (Gau).",
"143. Sita Ram v State, 2011 Cr LJ 1082 (All); Leena Balkrishna Nair v State of Maharashtra, 2010",
Cr LJ 3292 (Bom).,
"144. Lakshman Dagdu, (1886) 10 Bom 512.",
"145. Nivrutti, 1985 Cr LJ 449 (Bom).",
"146. Debeswar Bhuyan v State of Assam, 2012 Cr LJ 274 (Gau). See also Laxman Gagarai v State",
"of Orissa, 2012 Cr LJ 44 (Ori).",
"147. State of Orissa v Kalia Alias Debabrata Maharana, 2008 Cr LJ 3107 (Ori).",
"148. Kuttappan v State of Kerala, 1986 Cr LJ 271 (Ker).",
"149. State of Rajasthan v Shera Ram, (2012) 1 SCC 602 [LNIND 2011 SC 1192] : AIR 2012 SC 1",
"[LNIND 2011 SC 1192] : (2012) 1 SCC (Cr) 406 relied on Modi, Medical Jurisprudence and",
"Toxicology, 24th Edn, 2011.",
"150. Satwant Singh, 1975 Cr LJ 1605 (P & H). R v Sullivan, (1983) 2 All ER 673 , epilepsy is a",
"disease of the mind, but it is not that of madness, though the effect produced on the mind is the",
same because it is difficult to convict a person who is himself a victim of psychomotor epilepsy.,
"151. State of MP v Ahamadulla, 1961 (2) Cr LJ 43 : AIR 1961 SC 998 [LNIND 1961 SC 29] .",
"152. Bapu v State of Rajasthan, (2007) 8 SCC 66 [LNIND 2007 SC 774] : JT 2007 (9) SC 110 :",
2007 AIR (SCW) 3808 : 2007 (7) SCR 917 [LNIND 2007 SC 774] : (2007) 8 Scale 455 [LNIND,
"2007 SC 774] : (2007) 3 SCC(Cr) 509; Lok Bahadur Dahal v State of Sikkim, 2012 Cr LJ 4996 (Sik);",
"Marimuthu v State, 2009 Cr LJ 3633 (Mad); Siddhapal Kamala Yadav, AIR 2009 SC 97 [LNIND",
"2008 SC 1992] : (2009) 1 SCC 124 [LNIND 2008 SC 1992] ; Ramadhin v State of MP, 1995 Cr LJ",
3708 (MP).,
"153. Riyasat v State of UP, 1993 Cr LJ 2834 (All).",
"154. Jagdish v State of MP, (2009) 9 SCC 495 [LNINDORD 2009 SC 210] : (2010) 1 SCC(Cr) 21 :",
AIR 2010 SC (Supp) 373.,
"155. Niman Sha v MP, 1996 Cr LJ 3395 (MP); Venugopalan Venu v Kerala, 1996 Cr LJ 3363 (Ker).",
"Raval Mohanbhatt v State, 1998 Cr LJ 4325 (Guj).",
"156. State of Jharkhand v Madras Nayak, 2003 Cr LJ NOC 197 : 2003 AIR Jhar HCR 653.",
"157. Siddhapal Kamala Yadav, AIR 2009 SC 97 [LNIND 2008 SC 1992] : (2009) 1 SCC 124",
[LNIND 2008 SC 1992] .,
"158. Shrikant Anandrao Bhosale v State of Maharashtra, AIR 2002 SC 3399 [LNIND 2002 SC 606]",
: (2002) 7 SCC 748 [LNIND 2002 SC 606] .,
"159. Debeswar Bhuyan v State of Assam, 2012 Cr LJ 274 (Gau).",
"160. Jagannath Das v State, 1991 Cr LJ (NOC) 32 (Cal). SK Nair v State of Punjab, AIR 1997 SC",
"1537 [LNIND 1996 SC 1829] : 1997 Cr LJ 772 : (1997) 1 SCC 141 [LNIND 1996 SC 1829] , the",
"plea of paranoid, facts established that he understood the implications of the acts at the time of",
"the incident plea not sustainable. Ram Swarup Thakur v State of Bihar, 2000 Cr LJ 426 (Pat), the",
"accused killed his own son of 3 years old for no reason. He was in mental hospital for two years,",
not a normal man at the time. No evidence from prosecution as to his state of mind. Acquitted.,
"Shrikant Anandrao Bhosale v State of Maharashtra, AIR 2002 SC 3399 [LNIND 2002 SC 606] :",
"(2002) 7 SCC 748 [LNIND 2002 SC 606] , another case of paranoid schizophrenia, the accused",
"killed his wife in day light, made no attempt to hide or run away, mental unsoundness before or",
after occurrence was proved. The benefit of section 84 was granted. Also see Sudhakaran v,
"State of Kerala, (2010) 10 SCC 582 [LNIND 2010 SC 1046] : AIR 2011 SC 265 [LNIND 2010 SC",
1046] : 2011 Cr LJ 292 .,
"161. Tikaram Krishnalal Pandey v State of Maharashtra, 2013 Cr LJ 2410 (Bom).",
"162. Dahyabhai Chhaganbhai Thakkar v State of Gujarat, AIR 1964 SC 1563 [LNIND 1964 SC 88] ;",
"Sudhakaran v State of Kerala, (2010) 10 SCC 582 [LNIND 2010 SC 1046] : AIR 2011 SC 265",
"[LNIND 2010 SC 1046] : 2011 Cr LJ 292 ; In State of H v Gian Chand, AIR 2001 SC 2075 [LNIND",
2001 SC 1124] : (2001) 6 SCC 71 [LNIND 2001 SC 1124] : 2001 Cr LJ 2548 : (2001) 1 SCC(Cr),
"980, the Supreme Court set aside the High Court Judgment by holding that the High Court",
misapplied the Dahyabhai Judgment (Supra).,
"163. Devidas Loka Rathod v State of Maharashtra, AIR 2018 SC 3093 [LNIND 2018 SC 311] .",
164. Gelsing Pida Pawar v State of Maharashtra. 2010 Cr LJ 4097 (Bom); Leena Balkrishna Nair v,
"State of Maharashtra, 2010 Cr LJ 3292 (Bom); Sarat Chandra Sahoo v State of Orissa, 2010 Cr LJ",
3084 (Ori)].,
"165. Shivraj Singh v State of MP, 1975 Cr LJ 1458 , the accused failed to make out his defence.",
"Similar observations occur in State v E Lemon, AIR 1970 Goa 1 : 1970 Cr LJ 36 ; Balagopal Re,",
"1976 Cr LJ 1978 ; Dulal Nayak v State of WB, 1987 Cr LJ 1561 Cal, striking twice on head with",
"the leg of cot, intention clear. Omkarlal v State of MP, 1987 Cr LJ 1289 MP. TN Lakshmaiah v",
"State of Karnataka, (2002) 1 SCC 219 [LNIND 2001 SC 2360] , the Court has to examine the",
accused's claim having regard to his entire conduct up to commencement of the proceedings,
before the trial Court. The accused murdered his wife and son and took the plea that he acted,
under a spell of insanity. He led no evidence to that effect. Also his conduct was that of a fully,
"conscious man. Bapu v State of Rajasthan, (2007) 8 SCC 66 [LNIND 2007 SC 774] , explanation",
"of the type of burden of proof which lies on the accused; Bihari Lal v State of HP, 2006 Cr LJ",
"3832 HP, the accused has to prove his mental condition of insanity. He cannot draw any benefit",
from adverse medical opinion.,
"166. Ratan Lal v State of MP, AIR 1971 SC 778 [LNIND 1970 SC 487] : 1971 Cr LJ 654 .",
"167. Tukappa Tamanna Lingardi v State of Maharashtra, 1991 Cr LJ 2375 (Bom).",
"168. Kirtanram Mansai Uranv v State of MP, 2011 Cr LJ 4658 (Chh).",
"169. Bhan Singh v State of MP, 1990 Cr LJ 1861 (MP).",
"170. Elkari Shankari v State of AP, 1990 Cr LJ 97 AP. See also Uchhab Sahoo v State of Orissa,",
"1989 Cr LJ 168 (Ori), evidence created a doubt that the accused might have been under a spell",
of madness.,
"171. Narayan Chandra Dey v State, 1988 Cr LJ 387 (Cal). See also Santosh Kumar Sarkar v State,",
1988 Cr LJ 1828 Cal.,
"172. Bapu v State of Rajasthan, (2007) 8 SCC 66 [LNIND 2007 SC 774] : (2007) 4 KLT 63 [LNIND",
1985 KER 300] . There has to be absence of mens rea and not mere absence of motive.,
"173. Chandrashekar v State, 1998 Cr LJ 2237 (Kant). See also Raval Mohanbhai Laxmanbhai v",
"State, 1998 Cr LJ 4325 .",
"174. R v Feel (Taramary), (2000) 2 Cr App R (S) 464, [CA (Crim Div)].",
"175. Mariappan vState of TN, 2013 Cr LJ 2334 (SC) : 2013 (6) Scale 18 .",
"176. Turam Sundi v State of Jharkhand, 2011 Cr LJ 1872 (Jha); Madhusudan v State of",
"Karnataka, 2011 Cr LJ 215 (Kar); C T Raveenran v State of Kerala, 2011 Cr LJ 14089 (Ker).",
"177. Nand Lal v State of Rajasthan, 2011 Cr LJ 3686 (Raj); Babasaheb Thombre v State of",
"Maharashtra, 2008 Cr LJ 2935 (Bom)].",
"178. Dhaneswar Pradhan v State of Assam, 2003 Cr LJ 733 (Gau).",
"179. PSVLN Sastry v Advocate General HC of AP, (2007) 15 SCC 271 .",
"180. Apu @ Gajraj Singh v State of Rajasthan, (2007) 8 SCC 66 [LNIND 2007 SC 774] : 2007 (3)",
RCR (Criminal) 343.,
"181. Shibu v State of Kerala, 2013 (4) KLJ 300 : 2013 (4) KLT 323 [LNIND 2012 KER 968] (Ker",
DB).,
182. Ibid.,
"183. Ashok Kumar R v State of Kerala, 2016 Cr LJ 4765 (Ker) : 2016 (4) KHC 232 .",
184. Section 328-339.,
THE INDIAN PENAL CODE,
CHAPTER IV GENERAL EXCEPTIONS,
THIS chapter has been framed in order to obviate the necessity of repeating in every,
penal clause a considerable number of limitations.,
The word 'offence' in this chapter denotes a thing punishable under the Code or under,
any special or local law when it satisfied the conditions laid down in section 40 of the,
Code.,
"The ""general exceptions"" contained in sections 76–106 make an offence a non-offence.",
"The ""general exceptions"" enacted by Indian Penal Code, 1860 (IPC, 1860) are of",
"universal application and for the sake of brevity of expression, instead of repeating in",
"every section that the definition is to be taken subject to the exceptions, the Legislature",
"by section 6 IPC, 1860 enacted that all the definitions must be regarded as subject to",
"the general exceptions. Therefore, general exceptions are part of definition of every",
"offence contained in IPC, 1860, but the burden to prove their existence lied on the",
accused.1.,
The following acts are exempted under the Code from criminal liability:—,
1. Act of a person bound by law to do a certain thing (section 76).,
2. Act of a Judge acting judicially (section 77).,
3. Act done pursuant to an order or a judgment of a Court (section 78).,
"4. Act of a person justified, or believing himself justified, by law (section 79).",
5. Act caused by accident (section 80).,
6. Act likely to cause harm done without criminal intent to prevent other harm,
(section 81).,
7. Act of a child under seven years (section 82).,
"8. Act of a child above seven and under 12 years, but of immature understanding",
(section 83).,
9. Act of a person of unsound mind (section 84).,
10. Act of an intoxicated person (section 85) and partially exempted (section 86).,
11. Act not known to be likely to cause death or grievous hurt done by consent of,
the sufferer (section 87).,
12. Act not intended to cause death done by consent of sufferer (section 88).,
13. Act done in good faith for the benefit of a child or an insane person by or by the,
consent of guardian (section 89).,
14. Act done in good faith for the benefit of a person without consent (section 92).,
15. Communication made in good faith to a person for his benefit (section 93).,
16. Act done under threat of death (section 94).,
17. Act causing slight harm (section 95).,
18. Act done in private defence (sections 96–106).,
"The above exceptions, strictly speaking, come within the following seven categories:—",
"1. Judicial acts (section. 77, 78).",
"2. Mistake of fact (sections 76, 79).",
3. Accident (section 80).,
"4. Absence of criminal intent (sections 81–86, 92–94).",
"5. Consent (sections 87, 90).",
6. Trifling acts (section 95).,
7. Private defence (sections 96–106).,
"Onus of proving exception lies on accused.—When a person is accused of any offence,",
the burden of proving the existence of circumstances bringing the case within any of,
"the general exceptions in the Penal Code, or within any special exception or proviso",
"contained in any other part of the same Code, or in any law defining the offence, is",
"upon him, and the Court shall presume the absence of such circumstances.2.",
Although the law lays down that the onus of proving circumstances which give the,
"benefit of a general exception to an accused person lies on him, and in the absence of",
"evidence the presumption is against the accused, this does not mean that the accused",
"must lead evidence. If it is apparent from the evidence on the record, whether produced",
"by the prosecution or by the defence, that a general exception would apply, then the",
presumption is removed and it is open to the Court to consider whether the evidence,
proves to its satisfaction that the accused comes within the exception.3.,
Applicability of General exceptions during investigation.—In considering that whether,
"accusation made in the complaint makes out a case for commission of offence or not,",
the police while reaching the prima facie satisfaction of suspecting the commission of,
"cognizable offence, cannot ignore the general exception as provided under IPC, 1860",
"as per Chapter IV of IPC, 1860. If on the basis of the allegation made in the complaint,",
"the case is falling in general exceptions, it can be said that the action cannot be termed",
as an offence.4. Investigating officer is bound to investigate and confirm that despite,
"what is contained in the ""General Exceptions""; acts committed by accused shall",
"constitute offence under IPC, 1860. This shall be done, by virtue of section 6 of IPC,",
"1860. In the light of section 6 of IPC, 1860, definition of every offence is to be",
"understood subject to the ""General Exceptions"". Therefore, investigation shall not",
confine merely to the acts committed by a person. Depending on facts and,
"circumstances of each case, many other relevant facts also have to be investigated",
"into, in the light of the provisions contained in ""General Exceptions"". It is only then that",
an investigating officer will be able to confirm whether the act committed by a person,
"is an offence or not, as defined in IPC, 1860 subject to what is contained in ""General",
"Exceptions"". Further, the category of self-defence falling in general exception would fall",
"in a different category than the general exceptions, which are provided in the very",
chapter for exercise of the statutory duty or lawful power either under the mistake of,
law or fact or mistaken belief of law or fact.5.,
[s 85] Act of a person incapable of judgment by reason of intoxication caused,
against his will.,
"Nothing is an offence which is done by a person who, at the time of doing it, is, by",
"reason of intoxication, incapable of knowing the nature of the act, or that he is doing",
"what is either wrong, or contrary to law; provided that the thing which intoxicated him",
was administered to him without his knowledge or against his will.,
COMMENT.—,
Under this section a person will be exonerated from liability for doing an act while in a,
"state of intoxication if he at the time of doing it, by reason of intoxication, was",
"(1) incapable of knowing the nature of the act, or",
(2) that he was doing what was either wrong or contrary to law;,
Provided that the thing which intoxicated him was administered to him without his,
knowledge or against his will.185.,
Voluntary drunkenness is no excuse for the commission of a crime.186. A person,
cannot become himself drunk with liquor and commit an offence and then come and,
"say that he had consumed the liquor and, therefore, the benefit of section 85 should be",
given to him.187. The law pronounces that the obscuration and divestment of that,
judgment and human feeling which in a sober state would have prevented the accused,
"from offending, shall not, when produced by his voluntary act, screen him from",
"punishment, although he be no longer capable of self-restraint.188. It is also no excuse",
to say that because of it he failed to resist the impulse to act in a certain way189. or,
that because of it he acted like an automaton.190.,
[s 85.1] Voluntary drunkenness.—when an excuse.—,
Nevertheless voluntary drunkenness is a factor which has to be taken into,
"consideration at least in two types of cases, viz.,",
(i) where a specific intent is an essential element of an offence charged and the,
evidence shows that the state of intoxication of the accused is such that he is,
incapable of forming the specific intent essential to constitute the crime.191. In the,
"Indian context, for example, it would be intent to kill as in clauses 1, 2, and 3 of section",
"300, IPC, 1860. In such cases, however, even if the accused fails to actually form the",
"specific intent, section 86, IPC, 1860, would impute the necessary guilty knowledge to",
"him and he would, therefore, be liable for culpable homicide not amounting to murder",
"though not of murder.192. Thus, voluntary intoxication amounting to prove incapacity to",
form the required specific intent would be a limited excuse to reduce an offence of,
"murder (section 302) to one of culpable homicide not amounting murder (section 304,",
"IPC, 1860). This is, however, a question of fact in each case.",
"In a case of wife-burning, her dying declaration disclosed that her husband consumed",
"liquor, scolded her and then set her afire after pouring kerosene on her. She fought the",
fire and tried to run away but the accused again caught hold of her and again poured oil,
and inflamed her. It was held that these circumstances showed that the mental,
faculties of the accused were not impaired to such an extent that he was prevented,
from forming the requisite intention to cause death. He was convicted under section,
"302 and not section 304, Part II.193.",
(ii) where habitual drunkenness has resulted in such a diseased condition of the mind,
that the accused is incapable of knowing the nature of the act or that he is doing what,
"is either wrong or contrary to law. In such a case M'Naughten Rules (section 84, IPC,",
1860) would come into play and he would be absolved from liability.194. The most,
"common example of such an alcoholic disease is ""Delirium Tremens"" which is",
produced by prolonged and habitual excessive drinking and results in loss of the,
"faculty of reasoning or serious defect of reasoning. In other words, ""insanity, whether",
"produced by drunkenness or otherwise, is a defence to the crime charged.""195.",
"Under this section if a man is made drunk through stratagem or the fraud of others, or",
"through ignorance, or through any other means causing intoxication without the man's",
"knowledge or against his will, he is excused.196.",
[s 85.2] CASE.—,
"The accused ravished a girl of 13 years of age and, in furtherance of the act of rape,",
"placed his hand upon her mouth and his thumb upon her throat, thereby causing death",
by suffocation. The sole defence was a plea of drunkenness. It was held that,
drunkenness was no defence unless it could be established that the accused at the,
time of committing rape was so drunk that he was incapable of forming the intent to,
"commit it (which was not alleged), inasmuch as the death resulted from a succession",
"of acts, the rape and the act of violence causing suffocation, which could not be",
regarded independently of each other; and that the accused was guilty of murder.197.,
Drink is an aggravating feature in the award of sentence. In reference to one of the,
accused persons there was no evidence to establish that the effect of intoxication was,
"such as to cause him to lack the specific intent for murder, particularly in view of the",
"fact that, on his own admission, he was following instructions given by the other",
accused and he was able to give the police a lucid account of his actions. The degree,
of intoxication fell far below that which would preclude the formation of specific intent,
required for murder.198.,
"1. Shankar Narayan Bhadolkar v State of Maharashtra, AIR 2004 SC 1966 [LNIND 2004 SC 1370] :",
2004 Cr LJ 1778 : (2005) 9 SCC 71 [LNIND 2004 SC 1370] .,
"2. The Indian Evidence Act, I of 1872, section 105.",
"3. Musammat Anandi, (1923) 45 All 329 ; Babulal, 1960 Cr LJ 437 (All).",
"4. A K Chaudhary v State of Gujarat, 2006 Cr LJ 726 (Guj).",
"5. A K Chaudhary v State of Gujarat, 2006 Cr LJ 726 (Guj).",
"185. Bablu v State of Rajasthan, (2006) 13 SCC 116 [LNIND 2006 SC 1134] : AIR 2007 SC 697",
"[LNIND 2006 SC 1134] : 2007 Cr LJ 1160 , the Court stated three propositions as to the scope of",
the section:,
(i) the insanity whether produced by drunkenness or otherwise is a defence to the crime,
charged;,
(ii) evidence of drunkenness which renders the accused incapable of forming the specific,
intent essential to constitute the crime should be taken into account with the other facts,
proved in order to determine whether or not he had this intent; and,
(iii) the evidence of drunkenness falling short of a proved incapacity in the accused to form,
the intent necessary to constitute the crime and merely establishing that his mind is,
"affected by drink so that he more readily gave to some violent passion, does not rebut",
the presumption that a man intends the natural consequences of his acts.,
"186. Chet Ram vState, 1971 Cr LJ 1246 ; (HP) Bodhee Khan, (1866) 5 WR (Cr) 79; Boodh Dass,",
(1866) PR No. 41 of 1866.,
"187. Venkappa Kannappa Chowdari v State of Karnataka, 1996 Cr LJ 15 (Kar).",
"188. Mobeni Minji, 1982 Cr LJ NOC 39 (Gau).",
"189. Director of Public Prosecutions v Beard, (1920) AC 479 ; AG for Northern Ireland v Gallagher",
(1963) AC 349 .,
"190. Brathy v AG for Northern Ireland, (1963) AC 386 .",
"191. Director of Public Prosecutions v Beard, (1920) AC 479 ; Ramsingh, (1938) Nag 305;",
"Samman Singh, (1941) 24 Lah 39; DPP v Majewski (1976) 2 All ER 142 ; Shankar Jaiswara v State",
"of WB, (2007) 9 SCC 360 [LNIND 2007 SC 651] : (2007) 3 SCC Cr 553, the appellant abused the",
"victim in a filthy language, and when told to leave, stabbed him seven times to his death with a",
"sharp weapon, so many wounds shows no loss of self control, witnesses did not testify to the",
"degree of intoxication, in such circumstances it could not be said that there was no intention on",
the part of the appellant or that he was out of his senses on account of intoxication.,
"192. Mathai Mathew, 1952 Cr LJ 1304 (TC); Basdev v State of PEPSU, 1956 Cr LJ 919 (2) : AIR",
"1956 SC 488 [LNIND 1956 SC 34] ; see also R. Deb, Principles of Criminology, Criminal Law and",
"Investigation, 2nd Edn, vol II, pp 604-605.",
"193. Mavari Surya Satyanaraina v State of AP, (1995) 1 Cr LJ 689 .",
"194. Davis (1881) 14 Cox cc 563; AG for Northern Ireland v Gallagher; DPP v Board, Supra.",
"195. Basdev, 1956 Cr LJ 919 (at p 922-SC).",
196. 1 Hale PC 32.,
"197. Director of Public Prosecutions v Beard, (1920) AC 479 .",
"198. Sooklal v Trinidad and Tobago, (1999) 1 WLR 2011 , [Lord Hope of Craighead, PC].",
THE INDIAN PENAL CODE,
CHAPTER IV GENERAL EXCEPTIONS,
THIS chapter has been framed in order to obviate the necessity of repeating in every,
penal clause a considerable number of limitations.,
The word 'offence' in this chapter denotes a thing punishable under the Code or under,
any special or local law when it satisfied the conditions laid down in section 40 of the,
Code.,
"The ""general exceptions"" contained in sections 76–106 make an offence a non-offence.",
"The ""general exceptions"" enacted by Indian Penal Code, 1860 (IPC, 1860) are of",
"universal application and for the sake of brevity of expression, instead of repeating in",
"every section that the definition is to be taken subject to the exceptions, the Legislature",
"by section 6 IPC, 1860 enacted that all the definitions must be regarded as subject to",
"the general exceptions. Therefore, general exceptions are part of definition of every",
"offence contained in IPC, 1860, but the burden to prove their existence lied on the",
accused.1.,
The following acts are exempted under the Code from criminal liability:—,
1. Act of a person bound by law to do a certain thing (section 76).,
2. Act of a Judge acting judicially (section 77).,
3. Act done pursuant to an order or a judgment of a Court (section 78).,
"4. Act of a person justified, or believing himself justified, by law (section 79).",
5. Act caused by accident (section 80).,
6. Act likely to cause harm done without criminal intent to prevent other harm,
(section 81).,
7. Act of a child under seven years (section 82).,
"8. Act of a child above seven and under 12 years, but of immature understanding",
(section 83).,
9. Act of a person of unsound mind (section 84).,
10. Act of an intoxicated person (section 85) and partially exempted (section 86).,
11. Act not known to be likely to cause death or grievous hurt done by consent of,
the sufferer (section 87).,
12. Act not intended to cause death done by consent of sufferer (section 88).,
13. Act done in good faith for the benefit of a child or an insane person by or by the,
consent of guardian (section 89).,
14. Act done in good faith for the benefit of a person without consent (section 92).,
15. Communication made in good faith to a person for his benefit (section 93).,
16. Act done under threat of death (section 94).,
17. Act causing slight harm (section 95).,
18. Act done in private defence (sections 96–106).,
"The above exceptions, strictly speaking, come within the following seven categories:—",
"1. Judicial acts (section. 77, 78).",
"2. Mistake of fact (sections 76, 79).",
3. Accident (section 80).,
"4. Absence of criminal intent (sections 81–86, 92–94).",
"5. Consent (sections 87, 90).",
6. Trifling acts (section 95).,
7. Private defence (sections 96–106).,
"Onus of proving exception lies on accused.—When a person is accused of any offence,",
the burden of proving the existence of circumstances bringing the case within any of,
"the general exceptions in the Penal Code, or within any special exception or proviso",
"contained in any other part of the same Code, or in any law defining the offence, is",
"upon him, and the Court shall presume the absence of such circumstances.2.",
Although the law lays down that the onus of proving circumstances which give the,
"benefit of a general exception to an accused person lies on him, and in the absence of",
"evidence the presumption is against the accused, this does not mean that the accused",
"must lead evidence. If it is apparent from the evidence on the record, whether produced",
"by the prosecution or by the defence, that a general exception would apply, then the",
presumption is removed and it is open to the Court to consider whether the evidence,
proves to its satisfaction that the accused comes within the exception.3.,
Applicability of General exceptions during investigation.—In considering that whether,
"accusation made in the complaint makes out a case for commission of offence or not,",
the police while reaching the prima facie satisfaction of suspecting the commission of,
"cognizable offence, cannot ignore the general exception as provided under IPC, 1860",
"as per Chapter IV of IPC, 1860. If on the basis of the allegation made in the complaint,",
"the case is falling in general exceptions, it can be said that the action cannot be termed",
as an offence.4. Investigating officer is bound to investigate and confirm that despite,
"what is contained in the ""General Exceptions""; acts committed by accused shall",
"constitute offence under IPC, 1860. This shall be done, by virtue of section 6 of IPC,",
"1860. In the light of section 6 of IPC, 1860, definition of every offence is to be",
"understood subject to the ""General Exceptions"". Therefore, investigation shall not",
confine merely to the acts committed by a person. Depending on facts and,
"circumstances of each case, many other relevant facts also have to be investigated",
"into, in the light of the provisions contained in ""General Exceptions"". It is only then that",
an investigating officer will be able to confirm whether the act committed by a person,
"is an offence or not, as defined in IPC, 1860 subject to what is contained in ""General",
"Exceptions"". Further, the category of self-defence falling in general exception would fall",
"in a different category than the general exceptions, which are provided in the very",
chapter for exercise of the statutory duty or lawful power either under the mistake of,
law or fact or mistaken belief of law or fact.5.,
[s 86] Offence requiring a particular intent or knowledge committed by one,
who is intoxicated.,
In cases where an act done is not an offence unless done with a particular knowledge,
"or intent, a person who does the act in a state of intoxication shall be liable to be dealt",
with as if he had the same knowledge as he would have had if he had not been,
"intoxicated, unless the thing which intoxicated him was administered to him without",
his knowledge or against his will.,
COMMENT.—,
"Offence requiring particular intent or knowledge.—By reading the above section, it is",
clear that in the first part of the section the words 'intention or knowledge' are,
"mentioned, but in the latter part of the section the word 'knowledge' is only mentioned",
"and the word 'intention' is omitted. In case of voluntary drunkenness, knowledge is to",
be presumed in the same manner as if there was no drunkenness. If really the,
Parliament wanted the word 'intention' also to be presumed even in the case of an act,
"done in a drunken state of mind, the said word could have been mentioned in the",
"Second part also, but the same is omitted. Therefore, whether the accused was having",
intention or not while committing an act cannot be presumed as in case of,
knowledge.199. As certain guilty knowledge or intention forms part of the definition of,
"many offences, this section is provided to meet those cases. It says that a person",
voluntarily intoxicated will be deemed to have the same knowledge as he would have,
had if he had not been intoxicated. There may be cases in which a particular knowledge,
"is an ingredient, and there may be other cases in which a particular intent is an",
"ingredient, the two not being necessarily always identical. The section does not say",
that the accused shall be liable to be dealt with as if he had the same intention as,
"might have been presumed if he had not been intoxicated. Therefore, although there is",
"a presumption so far as knowledge is concerned, there is no such presumption with",
"regard to intention.200. Thus, this section attributes to a drunken man the knowledge of",
a sober man when judging of his action but does not give him the same intention. This,
knowledge is the result of a legal fiction and constructive intention cannot invariably be,
raised.201. Drunkenness makes no difference to the knowledge with which a man is,
"credited and if a man knew what the natural consequences of his acts were, he must",
be presumed to have intended to cause them.202. But this presumption may be,
"rebutted by his showing that at the time he did the act, his mind was so affected by the",
drink he had taken that he was incapable of forming the intention requisite for making,
his act the offence charged against him.203.,
So far as knowledge is concerned the Court must attribute to the intoxicated man the,
"same knowledge as if he was quite sober but so far as intent or intention is concerned,",
the Court must gather it from the attending general circumstances of the case paying,
due regard to the degree of intoxication. If the man was beside his mind altogether for,
"the time being, it would not be possible to fix him with the requisite intention. In other",
"words, where a man goes so deep into drinking that he becomes really incapable of",
"forming the requisite specific intent or knowledge for the offence, then in such a case",
too section 86 of the Code would impute the requisite knowledge to the accused,
"though not the requisite intention. Thus, where the accused in a state of extreme",
intoxication caused a fatal injury in the abdomen of his friend but by virtue of his highly,
intoxicated state of mind was incapable of knowing then as to what he was doing far,
"less forming the requisite intent to kill as envisaged in section 300, IPC, 1860, he could",
not be convicted under section 302 as he did not have the requisite intent to kill but he,
"could still be convicted under section 304 Part II, IPC, 1860, by virtue of imputed",
"knowledge under section 86, IPC, 1860.204. In this connection see also the discussion",
"under sub-head ""voluntary drunkenness: when an excuse"" under section 85, ante. But if",
he had not gone so deep in drinking and from the facts it could be found that he knew,
what he was about the Court will apply the rule that a man is presumed to intend the,
natural consequences of his act or acts.205.,
[s 86.1] CASES.—,
Accused husband beating his wife and throwing burning lamp on her under influence of,
liquor. Since he himself consumed the liquor he is not entitled to claim benefit under,
"section 86 of IPC, 1860.206. Act of the accused of walking a distance to the house of a",
witness and concealing the weapon and his wearing apparels showed that he was,
conscious and capable of understanding of his act. No evidence as regards the degree,
of intoxication or any evidence of any attending general circumstances to arrive at a,
conclusion that accused was beside his mind altogether temporarily at time,
"incident.207. On the basis of evidence in this case, it cannot be said that the accused",
was so much intoxicated at the time of the incident that he was beside his mind,
"altogether for the time being. He did set his wife on fire, but as soon as her sari started",
burning he realised the folly of his act and started extinguishing the fire. It shows that,
"he was not so much intoxicated that he was besides his mind altogether. Therefore, the",
rule that a man is presumed to intend the natural consequences of his act can be,
"applied to him also. Conviction under section 302 IPC, 1860 altered to one under",
"section 304(1) IPC, 1860.208.",
[s 86.2] Sections 85 and 86.—,
The reading of sections 85 and 86 together makes it clear that section 86 is an,
exception to section 85. These provisions show that if the intoxication is induced,
"voluntarily, the act done is an offence even if the person is incapable of knowing the",
nature of the act or that what he is doing is either wrong or contrary to law. This section,
obviously covers all offences. That is why; it appears that it became necessary to enact,
section 86 to take care of offences requiring a particular intent or knowledge on the,
part of the intoxicated offender. The section takes care of such offences and states,
"that if intoxication is involuntary, neither knowledge nor intention in committing the",
"offence will be presumed. If however, it is voluntary only knowledge of the offence on",
the part of the offender will be presumed but not intention in committing it. What,
section 86 means and no more as compared to section 85. The degree of intoxication,
"demanded by both sections, however, remains the same. In fact, it is instructive to note",
that section 84 which exempts persons of unsoundness of mind also expects the,
"degree of unsoundness to the same extent, viz., incapability of knowing the nature of",
the act or of the knowledge that what is being done either wrong or contrary to law.,
"Hence, the conclusion is inescapable that to avail of the exception under section 86,",
the degree of intoxication of the offender must be such that he is incapable of knowing,
the nature of the act or that he is doing what is either wrong or contrary to law.,
Intoxication short of this degree will not entitle the offender to the benefit of the,
exception.209.,
"1. Shankar Narayan Bhadolkar v State of Maharashtra, AIR 2004 SC 1966 [LNIND 2004 SC 1370] :",
2004 Cr LJ 1778 : (2005) 9 SCC 71 [LNIND 2004 SC 1370] .,
"2. The Indian Evidence Act, I of 1872, section 105.",
"3. Musammat Anandi, (1923) 45 All 329 ; Babulal, 1960 Cr LJ 437 (All).",
"4. A K Chaudhary v State of Gujarat, 2006 Cr LJ 726 (Guj).",
"5. A K Chaudhary v State of Gujarat, 2006 Cr LJ 726 (Guj).",
"199. Mavari Surya Satyanaraina v State of AP, 1995 Cr LJ 689 (AP).",
"200. Dil Mohammad, (1941) 21 Pat 250; Basdev v State of PEPSU, 1956 Cr LJ 919 (2) : AIR 1956",
SC 488 [LNIND 1956 SC 34] .,
"201. Pal Singh, (1917) PR No. 28 of 1917.",
"202. Judagi Malah, (1929) 8 Pat 911.",
"203. Samman Singh, (1941) 24 Lah 39.",
"204. Enrique F Rio v State, 1975 Cr LJ 1337 (Goa).",
"205. Basdev v State of Pepsu, (1956) SCR 363 [LNIND 1956 SC 34] : AIR 1956 SC 488 [LNIND",
1956 SC 34] .,
"206. Gautam Bhila Ahire v State of Maharashtra,. 2010 Cr LJ 4073 (Bom); Pidika Janu v State of",
"Orissa, 1989 Cr LJ (NOC) 104 ,",
"207. Shankar Jaiswara v State of WB, (2007) 9 SCC 360 [LNIND 2007 SC 651] : (2007) 3 SCC",
(Cr) 553.,
"208. Babu Sadashiv Jadhav v State of Maharashtra, 1984 Cr LJ 739 (Bom).",
"209. State of Maharashtra v Ashok Yashwant, 1987 Cr LJ 1416 (Bom).",
THE INDIAN PENAL CODE,
CHAPTER IV GENERAL EXCEPTIONS,
THIS chapter has been framed in order to obviate the necessity of repeating in every,
penal clause a considerable number of limitations.,
The word 'offence' in this chapter denotes a thing punishable under the Code or under,
any special or local law when it satisfied the conditions laid down in section 40 of the,
Code.,
"The ""general exceptions"" contained in sections 76–106 make an offence a non-offence.",
"The ""general exceptions"" enacted by Indian Penal Code, 1860 (IPC, 1860) are of",
"universal application and for the sake of brevity of expression, instead of repeating in",
"every section that the definition is to be taken subject to the exceptions, the Legislature",
"by section 6 IPC, 1860 enacted that all the definitions must be regarded as subject to",
"the general exceptions. Therefore, general exceptions are part of definition of every",
"offence contained in IPC, 1860, but the burden to prove their existence lied on the",
accused.1.,
The following acts are exempted under the Code from criminal liability:—,
1. Act of a person bound by law to do a certain thing (section 76).,
2. Act of a Judge acting judicially (section 77).,
3. Act done pursuant to an order or a judgment of a Court (section 78).,
"4. Act of a person justified, or believing himself justified, by law (section 79).",
5. Act caused by accident (section 80).,
6. Act likely to cause harm done without criminal intent to prevent other harm,
(section 81).,
7. Act of a child under seven years (section 82).,
"8. Act of a child above seven and under 12 years, but of immature understanding",
(section 83).,
9. Act of a person of unsound mind (section 84).,
10. Act of an intoxicated person (section 85) and partially exempted (section 86).,
11. Act not known to be likely to cause death or grievous hurt done by consent of,
the sufferer (section 87).,
12. Act not intended to cause death done by consent of sufferer (section 88).,
13. Act done in good faith for the benefit of a child or an insane person by or by the,
consent of guardian (section 89).,
14. Act done in good faith for the benefit of a person without consent (section 92).,
15. Communication made in good faith to a person for his benefit (section 93).,
16. Act done under threat of death (section 94).,
17. Act causing slight harm (section 95).,
18. Act done in private defence (sections 96–106).,
"The above exceptions, strictly speaking, come within the following seven categories:—",
"1. Judicial acts (section. 77, 78).",
"2. Mistake of fact (sections 76, 79).",
3. Accident (section 80).,
"4. Absence of criminal intent (sections 81–86, 92–94).",
"5. Consent (sections 87, 90).",
6. Trifling acts (section 95).,
7. Private defence (sections 96–106).,
"Onus of proving exception lies on accused.—When a person is accused of any offence,",
the burden of proving the existence of circumstances bringing the case within any of,
"the general exceptions in the Penal Code, or within any special exception or proviso",
"contained in any other part of the same Code, or in any law defining the offence, is",
"upon him, and the Court shall presume the absence of such circumstances.2.",
Although the law lays down that the onus of proving circumstances which give the,
"benefit of a general exception to an accused person lies on him, and in the absence of",
"evidence the presumption is against the accused, this does not mean that the accused",
"must lead evidence. If it is apparent from the evidence on the record, whether produced",
"by the prosecution or by the defence, that a general exception would apply, then the",
presumption is removed and it is open to the Court to consider whether the evidence,
proves to its satisfaction that the accused comes within the exception.3.,
Applicability of General exceptions during investigation.—In considering that whether,
"accusation made in the complaint makes out a case for commission of offence or not,",
the police while reaching the prima facie satisfaction of suspecting the commission of,
"cognizable offence, cannot ignore the general exception as provided under IPC, 1860",
"as per Chapter IV of IPC, 1860. If on the basis of the allegation made in the complaint,",
"the case is falling in general exceptions, it can be said that the action cannot be termed",
as an offence.4. Investigating officer is bound to investigate and confirm that despite,
"what is contained in the ""General Exceptions""; acts committed by accused shall",
"constitute offence under IPC, 1860. This shall be done, by virtue of section 6 of IPC,",
"1860. In the light of section 6 of IPC, 1860, definition of every offence is to be",
"understood subject to the ""General Exceptions"". Therefore, investigation shall not",
confine merely to the acts committed by a person. Depending on facts and,
"circumstances of each case, many other relevant facts also have to be investigated",
"into, in the light of the provisions contained in ""General Exceptions"". It is only then that",
an investigating officer will be able to confirm whether the act committed by a person,
"is an offence or not, as defined in IPC, 1860 subject to what is contained in ""General",
"Exceptions"". Further, the category of self-defence falling in general exception would fall",
"in a different category than the general exceptions, which are provided in the very",
chapter for exercise of the statutory duty or lawful power either under the mistake of,
law or fact or mistaken belief of law or fact.5.,
[s 87] Act not intended and not known to be likely to cause death or grievous,
"hurt, done by consent.",
"Nothing which is not intended to cause death, or grievous hurt, and which is not",
"known by the doer to be likely to cause death or grievous hurt, is an offence by reason",
"of any harm which it may cause, or be intended by the doer to cause, to any person,",
"above eighteen years of age, who has given consent, whether express or implied, to",
suffer that harm; or by reason of any harm which it may be known by the doer to be,
likely to cause to any such person who has consented to take the risk of that harm.,
ILLUSTRATION,
A and Z agrees to fence with each other for amusement. This agreement implies the,
"consent of each to suffer any harm which, in the course of such fencing, may be",
"caused without foul play; and if A, while playing fairly, hurts Z, A commits no offence.",
COMMENT.—,
Consent.—This section protects a person who causes injury to another person above,
18 years of age who has given his consent by doing an act not intended and not known,
to be likely to cause death or grievous hurt. It appears to proceed upon the maxim,
volenti non fit injuria. He who consents suffers no injury. This rule is founded upon two,
very simple propositions: (1) that every person is the best judge of his own interest and,
(2) that no man will consent to what he thinks hurtful to himself. Every man is free to,
"inflict any suffering or damage he chooses on his own person and property; and if,",
"instead of doing this himself, he consents to its being done by another, the doer",
"commits no offence. A man may give away his property, and so another who takes it by",
his permission does not commit theft. He may inflict self-torture or he may consent to,
suffer torture at the hands of another.,
"The section does not permit a man to give his consent to anything intended, or known",
to be likely to cause his own death or grievous hurt.,
[s 87.1] Sado-masochistic desires.—,
"In the absence of a good reason, the victim's consent is no defence and the",
satisfaction of sado-masochistic desires does not constitute such a good reason. A,
group of sado-masochistics participated in consensual acts of violence against each,
other for sexual gratification. They were charged with various offences. They were,
convicted for causing harm to one member. It is not in public interest that a person,
should wound or cause actual bodily harm to another for no good reason and without,
such a reason the victim's consent afforded no defence.210.,
[s 87.2] Injection of heroin on request resulting in death.—,
The accused appealed against a sentence of five years' imprisonment for,
"manslaughter. The deceased, visited him, at his flat. He had previously drunk a",
significant quantity of alcohol. He took some heroin and demanded more. At his,
"request the accused injected him with more heroin, resulting in his death. The accused",
contended that weight should have been given to his admission of responsibility and,
"his guilty plea, the fact that the deceased had insisted upon more heroin, that there was",
no commercial motive involved in the supply and that he had co-operated in naming the,
supplier of the heroin.,
It was held that it was necessary to take into consideration accused's co-operation in,
naming the supplier of the heroin and other mitigating factors. The sentence for,
manslaughter was reduced to three years' imprisonment and the sentence for,
"supplying a Class A drug, from three years' imprisonment to two years.211.",
"Sections 87 and 88 of the IPC, 1860 do not come into play in the cases where interest",
of the Society is involved.212.,
"1. Shankar Narayan Bhadolkar v State of Maharashtra, AIR 2004 SC 1966 [LNIND 2004 SC 1370] :",
2004 Cr LJ 1778 : (2005) 9 SCC 71 [LNIND 2004 SC 1370] .,
"2. The Indian Evidence Act, I of 1872, section 105.",
"3. Musammat Anandi, (1923) 45 All 329 ; Babulal, 1960 Cr LJ 437 (All).",
"4. A K Chaudhary v State of Gujarat, 2006 Cr LJ 726 (Guj).",
"5. A K Chaudhary v State of Gujarat, 2006 Cr LJ 726 (Guj).",
"210. R v Laskey, (1993) 2 WLR 556 (HL).",
"211. R v Powell (Jason Wayne), (2002) EWCA Crim 661 : (2002) 2 Cr App R (S) 117, [CA (Crim",
Div)].,
"212. Deepa v SI of Police, 1985 Cr LJ 1120 (Ker).",
THE INDIAN PENAL CODE,
CHAPTER IV GENERAL EXCEPTIONS,
THIS chapter has been framed in order to obviate the necessity of repeating in every,
penal clause a considerable number of limitations.,
The word 'offence' in this chapter denotes a thing punishable under the Code or under,
any special or local law when it satisfied the conditions laid down in section 40 of the,
Code.,
"The ""general exceptions"" contained in sections 76–106 make an offence a non-offence.",
"The ""general exceptions"" enacted by Indian Penal Code, 1860 (IPC, 1860) are of",
"universal application and for the sake of brevity of expression, instead of repeating in",
"every section that the definition is to be taken subject to the exceptions, the Legislature",
"by section 6 IPC, 1860 enacted that all the definitions must be regarded as subject to",
"the general exceptions. Therefore, general exceptions are part of definition of every",
"offence contained in IPC, 1860, but the burden to prove their existence lied on the",
accused.1.,
The following acts are exempted under the Code from criminal liability:—,
1. Act of a person bound by law to do a certain thing (section 76).,
2. Act of a Judge acting judicially (section 77).,
3. Act done pursuant to an order or a judgment of a Court (section 78).,
"4. Act of a person justified, or believing himself justified, by law (section 79).",
5. Act caused by accident (section 80).,
6. Act likely to cause harm done without criminal intent to prevent other harm,
(section 81).,
7. Act of a child under seven years (section 82).,
"8. Act of a child above seven and under 12 years, but of immature understanding",
(section 83).,
9. Act of a person of unsound mind (section 84).,
10. Act of an intoxicated person (section 85) and partially exempted (section 86).,
11. Act not known to be likely to cause death or grievous hurt done by consent of,
the sufferer (section 87).,
12. Act not intended to cause death done by consent of sufferer (section 88).,
13. Act done in good faith for the benefit of a child or an insane person by or by the,
consent of guardian (section 89).,
14. Act done in good faith for the benefit of a person without consent (section 92).,
15. Communication made in good faith to a person for his benefit (section 93).,
16. Act done under threat of death (section 94).,
17. Act causing slight harm (section 95).,
18. Act done in private defence (sections 96–106).,
"The above exceptions, strictly speaking, come within the following seven categories:—",
"1. Judicial acts (section. 77, 78).",
"2. Mistake of fact (sections 76, 79).",
3. Accident (section 80).,
"4. Absence of criminal intent (sections 81–86, 92–94).",
"5. Consent (sections 87, 90).",
6. Trifling acts (section 95).,
7. Private defence (sections 96–106).,
"Onus of proving exception lies on accused.—When a person is accused of any offence,",
the burden of proving the existence of circumstances bringing the case within any of,
"the general exceptions in the Penal Code, or within any special exception or proviso",
"contained in any other part of the same Code, or in any law defining the offence, is",
"upon him, and the Court shall presume the absence of such circumstances.2.",
Although the law lays down that the onus of proving circumstances which give the,
"benefit of a general exception to an accused person lies on him, and in the absence of",
"evidence the presumption is against the accused, this does not mean that the accused",
"must lead evidence. If it is apparent from the evidence on the record, whether produced",
"by the prosecution or by the defence, that a general exception would apply, then the",
presumption is removed and it is open to the Court to consider whether the evidence,
proves to its satisfaction that the accused comes within the exception.3.,
Applicability of General exceptions during investigation.—In considering that whether,
"accusation made in the complaint makes out a case for commission of offence or not,",
the police while reaching the prima facie satisfaction of suspecting the commission of,
"cognizable offence, cannot ignore the general exception as provided under IPC, 1860",
"as per Chapter IV of IPC, 1860. If on the basis of the allegation made in the complaint,",
"the case is falling in general exceptions, it can be said that the action cannot be termed",
as an offence.4. Investigating officer is bound to investigate and confirm that despite,
"what is contained in the ""General Exceptions""; acts committed by accused shall",
"constitute offence under IPC, 1860. This shall be done, by virtue of section 6 of IPC,",
"1860. In the light of section 6 of IPC, 1860, definition of every offence is to be",
"understood subject to the ""General Exceptions"". Therefore, investigation shall not",
confine merely to the acts committed by a person. Depending on facts and,
"circumstances of each case, many other relevant facts also have to be investigated",
"into, in the light of the provisions contained in ""General Exceptions"". It is only then that",
an investigating officer will be able to confirm whether the act committed by a person,
"is an offence or not, as defined in IPC, 1860 subject to what is contained in ""General",
"Exceptions"". Further, the category of self-defence falling in general exception would fall",
"in a different category than the general exceptions, which are provided in the very",
chapter for exercise of the statutory duty or lawful power either under the mistake of,
law or fact or mistaken belief of law or fact.5.,
"[s 88] Act not intended to cause death, done by consent in good faith for",
person's benefit.,
"Nothing which is not intended to cause death, is an offence by reason of any harm",
"which it may cause, or be intended by the doer to cause, or be known by the doer to be",
"likely to cause, to any person for whose benefit it is done in good faith, and who has",
"given a consent, whether express or implied, to suffer that harm, or to take the risk of",
that harm.,
ILLUSTRATION,
"A, a surgeon, knowing that a particular operation is likely to cause the death of Z, who",
"suffers under a painful complaint, but not intending to cause Z's death and intending in",
"good faith, Z's benefit performs that operation on Z, with Z's consent. A has committed",
no offence.,
COMMENT.—,
The preceding section allows any harm to be inflicted short of death or grievous hurt.,
This section sanctions the infliction of any harm if it is for the benefit of the person to,
whom it is caused. No consent can justify an intentional causing of death. But a person,
"for whose benefit a thing is done may consent that another shall do that thing, even if",
death may probably ensue. If a person gives his free and intelligent consent to take the,
"risk of an operation which, in a large proportion of cases, has proved fatal, the surgeon",
who operates cannot be punished even if death ensues.213. Again; if a person attacked,
"by a wild beast should call out to his friends to fire, though with imminent hazard to",
"himself, and they were to obey the call, we do not conceive that it would be expedient",
"to punish them, though they might by firing cause his death, and though when they fired",
they knew themselves to be likely to cause his death.214.,
This section differs from the last section in two particulars—(1) under it any harm,
except death may be inflicted; (2) the age of the person consenting is not mentioned,
(but see section 90 under which the age of the consenting party must at least be 12,
years).,
Persons not qualified as medical practitioners cannot claim the benefit of this section,
as they can hardly be deemed to act in 'good faith' as that expression is defined in,
section 52.215.,
[s 88.1] Criminal liability on doctor or surgeon.—,
Prosecution has to come out with a case of high degree of negligence on part of,
"doctor. Thus, when a patient agrees to go for medical treatment or surgical operation,",
every careless act of the medical man cannot be termed as 'criminal.' It can be termed,
'criminal' only when the medical man exhibits a gross lack of competence or inaction,
and wanton indifference to his patient's safety and which is found to have arisen from,
gross ignorance or gross negligence. Where a patient's death results merely from error,
"of judgment or an accident, no criminal liability should be attached to it. Mere",
inadvertence or some degree of want of adequate care and caution might create civil,
liability but would not suffice to hold him criminally liable.216. Even if the surgery was,
"done without the consent of the patient or his/her guardian, if it is for the benefit of the",
patient he is not liable. Section 98 deals with harm caused with the consent of the,
person injured or someone competent under law to give such consent on his behalf,
excludes causing of such harm from the category of offence. Here the complainant has,
"given her consent. Section 88 IPC, 1860 provides that harm done for the benefit of the",
person injured and with his consent will not make the person causing harm liable for,
criminal offence.217.,
"1. Shankar Narayan Bhadolkar v State of Maharashtra, AIR 2004 SC 1966 [LNIND 2004 SC 1370] :",
2004 Cr LJ 1778 : (2005) 9 SCC 71 [LNIND 2004 SC 1370] .,
"2. The Indian Evidence Act, I of 1872, section 105.",
"3. Musammat Anandi, (1923) 45 All 329 ; Babulal, 1960 Cr LJ 437 (All).",
"4. A K Chaudhary v State of Gujarat, 2006 Cr LJ 726 (Guj).",
"5. A K Chaudhary v State of Gujarat, 2006 Cr LJ 726 (Guj).",
"213. RP Dhanda (Dr.) v Bhurelal, 1987 Cr LJ 1316 MP, eye-operation for cataract by qualified",
doctor with patient's consent resulting in loss of sight.,
214. The Works of Lord Macaulay-On the Chapter of General Exceptions Note B.,
"215. Juggankhan, (1963) 1 Cr LJ 296 (MP).",
"216. Suresh Gupta v Govt. of NCT of Delhi, AIR 2004 SC 4091 [LNIND 2004 SC 744] : (2004) 6",
"SCC 422 [LNIND 2004 SC 744] ; Jacob Mathew v State of Punjab, AIR 2005 SC 3180 [LNIND 2005",
SC 587] : 2005 (6) SCC 1 [LNIND 2005 SC 587] .,
"217. Dr. Gopinatha Pillai T M v State of Kerala, 2000 Cr LJ 3682 (Ker); Katcherla Venkata Sunil v",
"Vanguri Seshumamba, 2008 Cr LJ 853 (AP).",
THE INDIAN PENAL CODE,
CHAPTER IV GENERAL EXCEPTIONS,
THIS chapter has been framed in order to obviate the necessity of repeating in every,
penal clause a considerable number of limitations.,
The word 'offence' in this chapter denotes a thing punishable under the Code or under,
any special or local law when it satisfied the conditions laid down in section 40 of the,
Code.,
"The ""general exceptions"" contained in sections 76–106 make an offence a non-offence.",
"The ""general exceptions"" enacted by Indian Penal Code, 1860 (IPC, 1860) are of",
"universal application and for the sake of brevity of expression, instead of repeating in",
"every section that the definition is to be taken subject to the exceptions, the Legislature",
"by section 6 IPC, 1860 enacted that all the definitions must be regarded as subject to",
"the general exceptions. Therefore, general exceptions are part of definition of every",
"offence contained in IPC, 1860, but the burden to prove their existence lied on the",
accused.1.,
The following acts are exempted under the Code from criminal liability:—,
1. Act of a person bound by law to do a certain thing (section 76).,
2. Act of a Judge acting judicially (section 77).,
3. Act done pursuant to an order or a judgment of a Court (section 78).,
"4. Act of a person justified, or believing himself justified, by law (section 79).",
5. Act caused by accident (section 80).,
6. Act likely to cause harm done without criminal intent to prevent other harm,
(section 81).,
7. Act of a child under seven years (section 82).,
"8. Act of a child above seven and under 12 years, but of immature understanding",
(section 83).,
9. Act of a person of unsound mind (section 84).,
10. Act of an intoxicated person (section 85) and partially exempted (section 86).,
11. Act not known to be likely to cause death or grievous hurt done by consent of,
the sufferer (section 87).,
12. Act not intended to cause death done by consent of sufferer (section 88).,
13. Act done in good faith for the benefit of a child or an insane person by or by the,
consent of guardian (section 89).,
14. Act done in good faith for the benefit of a person without consent (section 92).,
15. Communication made in good faith to a person for his benefit (section 93).,
16. Act done under threat of death (section 94).,
17. Act causing slight harm (section 95).,
18. Act done in private defence (sections 96–106).,
"The above exceptions, strictly speaking, come within the following seven categories:—",
"1. Judicial acts (section. 77, 78).",
"2. Mistake of fact (sections 76, 79).",
3. Accident (section 80).,
"4. Absence of criminal intent (sections 81–86, 92–94).",
"5. Consent (sections 87, 90).",
6. Trifling acts (section 95).,
7. Private defence (sections 96–106).,
"Onus of proving exception lies on accused.—When a person is accused of any offence,",
the burden of proving the existence of circumstances bringing the case within any of,
"the general exceptions in the Penal Code, or within any special exception or proviso",
"contained in any other part of the same Code, or in any law defining the offence, is",
"upon him, and the Court shall presume the absence of such circumstances.2.",
Although the law lays down that the onus of proving circumstances which give the,
"benefit of a general exception to an accused person lies on him, and in the absence of",
"evidence the presumption is against the accused, this does not mean that the accused",
"must lead evidence. If it is apparent from the evidence on the record, whether produced",
"by the prosecution or by the defence, that a general exception would apply, then the",
presumption is removed and it is open to the Court to consider whether the evidence,
proves to its satisfaction that the accused comes within the exception.3.,
Applicability of General exceptions during investigation.—In considering that whether,
"accusation made in the complaint makes out a case for commission of offence or not,",
the police while reaching the prima facie satisfaction of suspecting the commission of,
"cognizable offence, cannot ignore the general exception as provided under IPC, 1860",
"as per Chapter IV of IPC, 1860. If on the basis of the allegation made in the complaint,",
"the case is falling in general exceptions, it can be said that the action cannot be termed",
as an offence.4. Investigating officer is bound to investigate and confirm that despite,
"what is contained in the ""General Exceptions""; acts committed by accused shall",
"constitute offence under IPC, 1860. This shall be done, by virtue of section 6 of IPC,",
"1860. In the light of section 6 of IPC, 1860, definition of every offence is to be",
"understood subject to the ""General Exceptions"". Therefore, investigation shall not",
confine merely to the acts committed by a person. Depending on facts and,
"circumstances of each case, many other relevant facts also have to be investigated",
"into, in the light of the provisions contained in ""General Exceptions"". It is only then that",
an investigating officer will be able to confirm whether the act committed by a person,
"is an offence or not, as defined in IPC, 1860 subject to what is contained in ""General",
"Exceptions"". Further, the category of self-defence falling in general exception would fall",
"in a different category than the general exceptions, which are provided in the very",
chapter for exercise of the statutory duty or lawful power either under the mistake of,
law or fact or mistaken belief of law or fact.5.,
"[s 89] Act done in good faith for benefit of child or insane person, by or by",
consent of guardian.,
Nothing which is done in good faith for the benefit of a person under twelve years of,
"age, or of unsound mind, by or by consent, either express or implied, of the guardian",
"or other person having lawful charge of that person, is an offence by reason of any",
"harm which it may cause, or be intended by the doer to cause or be known by the doer",
to be likely to cause to that person:,
Provided—,
Provisos.,
"First.—That this exception shall not extend to the intentional causing of death, or",
to the attempting to cause death;,
Secondly.—That this exception shall not extend to the doing of anything which the,
"person doing it knows to be likely to cause death, for any purpose other than the",
"preventing of death or grievous hurt, or the curing of any grievous disease or",
infirmity; Thirdly.—That this exception shall not extend to the voluntary causing of,
"grievous hurt, or to the attempting to cause grievous hurt, unless it be for the",
"purpose of preventing death or grievous hurt, or the curing of any grievous",
disease or infirmity;,
"Fourthly.—That this exception shall not extend to the abetment of any offence, to",
the committing of which offence it would not extend.,
ILLUSTRATION,
"A, in good faith, for his child's benefit without his child's consent, has his child cut",
for the stone by a surgeon. Knowing it to be likely that the operation will cause the,
"child's death, but not intending to cause the child's death. A is within the exception,",
inasmuch as his object was the cure of the child.,
COMMENT.—,
This section empowers the guardian of an infant under 12 years or an insane person to,
"consent to the infliction of harm to the infant or the insane person, provided it is done",
in good faith and is done for his benefit. Persons above 12 years are considered to be,
"capable of giving consent under section 88. The consent of the guardian of a sufferer,",
"who is an infant or who is of unsound mind, shall have the same effect which the",
"consent of the sufferer himself would have, if the sufferer were of ripe age and sound",
mind.,
[s 89.1] Corporal punishment to children.—,
"Corporal punishment to child, in present days, is not recognized by law. It is an archaic",
"notion that to maintain discipline, child can be punished physically by the teaching staff",
because of implied consent by the parents or guardian. Now it is recognized social,
principle that even parents of the child are made to understand the basic human rights,
"of the child and instead of corporal punishment, correctional methods are recognized",
"in law.218. But the applicability of sections 88 and 89, IPC, 1860 and administering of",
"corporal punishments on students by the teachers for their benefit, came up for",
consideration in M Natesan v State of Madras.219. It was a case where a boy of 15 years,
was sent with the progress report to get the signature of his parents in it. But he,
"returned it with a thumb impression of another person, stating that the said thumb",
"impression was that of his mother, which was proved to be wrong. The teacher got",
"agitated and he beat the boy on his right palm with a stick. He did not cry. He, therefore,",
"beat him again, asking him why he did not cry. This resulted in causing three injuries,",
two superficial and one contusion. The Madras High Court held that:,
It cannot be denied that having regard to the peculiar position of a school teacher he must,
in the nature of things have authority to enforce discipline and correct a pupil put in his,
charge. To deny that authority would amount to a denial of all that is desirable and,
"necessary for the welfare, discipline and education of the pupil concerned. It can therefore",
"be assumed that when a parent entrusted a child to a teacher, he on his behalf impliedly",
"consents for the teacher to exercise over the pupil such authority. Of course, the person of",
the pupil is certainly protected by the penal provisions of the Indian Penal Code. But the,
same code has recognised exceptions in the form of ss. 88 and 89. Where a teacher,
exceeds the authority and inflicts such harm to the pupil as may be considered to be,
"unreasonable and immoderate, he would naturally lose the benefit of the exceptions.",
Whether he is entitled to the benefit of the exceptions or not in a given case will depend,
"upon the particular nature, extent and severity of the punishment inflicted.",
"220.In K A Abdul Vahid v State of Kerala,221. the Kerala High Court considered the",
"question when a school teacher, beats a student with a cane, who created commotion",
"in the school or showed disobedience to the Rules, whether he could be proceeded",
"against under the provisions of the IPC, 1860 and found that the teacher has acted",
"within the exception conferred on him, under section 88 of IPC, 1860.",
"1. Shankar Narayan Bhadolkar v State of Maharashtra, AIR 2004 SC 1966 [LNIND 2004 SC 1370] :",
2004 Cr LJ 1778 : (2005) 9 SCC 71 [LNIND 2004 SC 1370] .,
"2. The Indian Evidence Act, I of 1872, section 105.",
"3. Musammat Anandi, (1923) 45 All 329 ; Babulal, 1960 Cr LJ 437 (All).",
"4. A K Chaudhary v State of Gujarat, 2006 Cr LJ 726 (Guj).",
"5. A K Chaudhary v State of Gujarat, 2006 Cr LJ 726 (Guj).",
"218. Hasmukhbhai Gokaldas Shah v State of Gujarat, 2009 Cr LJ 2919 (Guj).",
"219. M Natesan v State of Madras, AIR 1962 Madras 216 [LNIND 1961 MAD 136] : 1962 (1) Cr",
LJ 727 .,
"220. Also see Ganesh Chandra Saha v. Jiw Raj Somani, AIR 1965 Calcutta 32 : (1965 (1) Cr LJ",
24) .,
"221. K A Abdul Vahid v State of Kerala, 2004 Cr LJ 2054 (Ker).",
THE INDIAN PENAL CODE,
CHAPTER IV GENERAL EXCEPTIONS,
THIS chapter has been framed in order to obviate the necessity of repeating in every,
penal clause a considerable number of limitations.,
The word 'offence' in this chapter denotes a thing punishable under the Code or under,
any special or local law when it satisfied the conditions laid down in section 40 of the,
Code.,
"The ""general exceptions"" contained in sections 76–106 make an offence a non-offence.",
"The ""general exceptions"" enacted by Indian Penal Code, 1860 (IPC, 1860) are of",
"universal application and for the sake of brevity of expression, instead of repeating in",
"every section that the definition is to be taken subject to the exceptions, the Legislature",
"by section 6 IPC, 1860 enacted that all the definitions must be regarded as subject to",
"the general exceptions. Therefore, general exceptions are part of definition of every",
"offence contained in IPC, 1860, but the burden to prove their existence lied on the",
accused.1.,
The following acts are exempted under the Code from criminal liability:—,
1. Act of a person bound by law to do a certain thing (section 76).,
2. Act of a Judge acting judicially (section 77).,
3. Act done pursuant to an order or a judgment of a Court (section 78).,
"4. Act of a person justified, or believing himself justified, by law (section 79).",
5. Act caused by accident (section 80).,
6. Act likely to cause harm done without criminal intent to prevent other harm,
(section 81).,
7. Act of a child under seven years (section 82).,
"8. Act of a child above seven and under 12 years, but of immature understanding",
(section 83).,
9. Act of a person of unsound mind (section 84).,
10. Act of an intoxicated person (section 85) and partially exempted (section 86).,
11. Act not known to be likely to cause death or grievous hurt done by consent of,
the sufferer (section 87).,
12. Act not intended to cause death done by consent of sufferer (section 88).,
13. Act done in good faith for the benefit of a child or an insane person by or by the,
consent of guardian (section 89).,
14. Act done in good faith for the benefit of a person without consent (section 92).,
15. Communication made in good faith to a person for his benefit (section 93).,
16. Act done under threat of death (section 94).,
17. Act causing slight harm (section 95).,
18. Act done in private defence (sections 96–106).,
"The above exceptions, strictly speaking, come within the following seven categories:—",
"1. Judicial acts (section. 77, 78).",
"2. Mistake of fact (sections 76, 79).",
3. Accident (section 80).,
"4. Absence of criminal intent (sections 81–86, 92–94).",
"5. Consent (sections 87, 90).",
6. Trifling acts (section 95).,
7. Private defence (sections 96–106).,
"Onus of proving exception lies on accused.—When a person is accused of any offence,",
the burden of proving the existence of circumstances bringing the case within any of,
"the general exceptions in the Penal Code, or within any special exception or proviso",
"contained in any other part of the same Code, or in any law defining the offence, is",
"upon him, and the Court shall presume the absence of such circumstances.2.",
Although the law lays down that the onus of proving circumstances which give the,
"benefit of a general exception to an accused person lies on him, and in the absence of",
"evidence the presumption is against the accused, this does not mean that the accused",
"must lead evidence. If it is apparent from the evidence on the record, whether produced",
"by the prosecution or by the defence, that a general exception would apply, then the",
presumption is removed and it is open to the Court to consider whether the evidence,
proves to its satisfaction that the accused comes within the exception.3.,
Applicability of General exceptions during investigation.—In considering that whether,
"accusation made in the complaint makes out a case for commission of offence or not,",
the police while reaching the prima facie satisfaction of suspecting the commission of,
"cognizable offence, cannot ignore the general exception as provided under IPC, 1860",
"as per Chapter IV of IPC, 1860. If on the basis of the allegation made in the complaint,",
"the case is falling in general exceptions, it can be said that the action cannot be termed",
as an offence.4. Investigating officer is bound to investigate and confirm that despite,
"what is contained in the ""General Exceptions""; acts committed by accused shall",
"constitute offence under IPC, 1860. This shall be done, by virtue of section 6 of IPC,",
"1860. In the light of section 6 of IPC, 1860, definition of every offence is to be",
"understood subject to the ""General Exceptions"". Therefore, investigation shall not",
confine merely to the acts committed by a person. Depending on facts and,
"circumstances of each case, many other relevant facts also have to be investigated",
"into, in the light of the provisions contained in ""General Exceptions"". It is only then that",
an investigating officer will be able to confirm whether the act committed by a person,
"is an offence or not, as defined in IPC, 1860 subject to what is contained in ""General",
"Exceptions"". Further, the category of self-defence falling in general exception would fall",
"in a different category than the general exceptions, which are provided in the very",
chapter for exercise of the statutory duty or lawful power either under the mistake of,
law or fact or mistaken belief of law or fact.5.,
[s 90] Consent known to be given under fear or misconception.,
"A consent is not such a consent as is intended by any section of this Code, if the",
"consent is given by a person under fear of injury, or under a misconception of fact, 1",
"and if the person doing the act knows, or has reason to believe, that the consent was",
given in consequence of such fear or misconception; or,
Consent of insane person.,
"if the consent is given by a person who, from unsoundness of mind, or",
"intoxication, is unable to understand the nature and consequence of that to which",
he gives his consent; or,
Consent of child.,
"unless the contrary appears from the context, if the consent is given by a person",
who is under twelve years of age.,
COMMENT.—,
This section does not define 'consent' but describes what not consent is.,
This section says that consent is not a true consent if it is given—,
(1) by a person under fear of injury; and the person obtaining the consent knows or,
has reason to believe this.,
(2) by a person under a misconception of fact;,
(3) by a person of unsound mind; and who is unable to understand the nature,
(4) by a person who is intoxicated; and consequence of that to which he gives his,
consent.,
(5) by a person under 12 years of age,
"Consent is an act of reason, accompanied with deliberation, the mind weighing as in",
"balance, the good and evil on each side.222. Consent means an active will in the mind",
"of a person to permit the doing of the act complained of, and knowledge of what is to",
"be done, or of the nature of the act that is being done, is essential to consent to an",
act.223. An act of helplessness on the face of inevitable compulsions is not consent in,
law.224. It requires voluntary participation by victim not only after exercise of,
"intelligence based on knowledge of significance and moral quality of act, but after",
having fully exercised the choice between resistance and assent.225. A mere act of,
"helpless resignation in the face of inevitable compulsion, non-resistance and passive",
giving in cannot be deemed to be consent.226. The Supreme Court in a long line of,
cases has given wider meaning to the word 'consent' in the context of sexual offences,
as explained in various judicial dictionaries. In Jowitt's Dictionary of English Law,
"(Second Edn), vol (1) 1977 at p 422 the word 'consent' has been explained as an act of",
"reason accompanied with deliberation, the mind weighing, as in a balance, the good or",
evil on either side. It is further stated that consent supposes three things–a physical,
"power, a mental power, and a free and serious use of them and if consent be obtained",
"by intimidation, force, meditated imposition, circumvention, surprise, or undue",
"influence, it is to be treated as a delusion, and not as a deliberate and free act of the",
mind.227. Section 90 cannot be considered as an exhaustive definition of consent for,
"the purposes of IPC, 1860. The normal connotation and concept of consent is not",
intended to be excluded.228. For determining whether consent given by the prosecutrix,
"was voluntary or under a misconception of fact, no straitjacket formula can be laid",
down.229.,
The factors set out in the first part are from the point of view of the victim. The second,
part enacts the corresponding provision from the point of view of the accused. It,
envisages that the accused too has the knowledge or reason to believe that the,
consent was given by the victim in consequence of fear of injury or misconception of,
fact. The requirements of both the parts have to be cumulatively satisfied.230.,
Submission of the body under the fear of terror cannot be construed as a consented,
sexual act. Consent for the purpose of section 375 requires voluntary participation not,
only after the exercise of intelligence based on the knowledge of the significance and,
moral quality of the act but after having fully exercised the choice between resistance,
"and assent. Whether there was consent or not, is to be ascertained only on a careful",
study of all relevant circumstances.231. Consent can be obtained under various,
methods and always necessarily need not be a one which is given voluntarily. For,
"example, if a victim is intoxicated without her knowledge or consent and if the rape is",
"committed while the victim was intoxicated or drunken, it cannot be said that she had",
"voluntarily given the consent. Therefore, such passive consent cannot be treated as a",
"consent as contemplated by section 90 of IPC, 1860.232. Obtaining consent by",
exercising deceit cannot be legitimate defence to exculpate an accused.233.,
[s 90.1] Submission to Rape.—,
An act of submission does not involve consent- Consent cannot be equated to inability,
"to resist or helplessness.234. Every consent involves a submission, but every",
submission is not consent and the mere fact that a woman had submitted to the,
promise of the accused does not necessarily indicate that her consent existed unless,
"the evidence on record establishes that the sexual act, which the prosecutrix had",
"allowed, was accompanied with deliberation after the mind had weighed, as in a",
"balance, the good and the evil on each side with the existing capacity and power to",
"withdraw the assent according to one's will or pleasure.235. Where, the accused had",
sexual intercourse with the prosecutrix by giving false assurance to her that he would,
"marry her and when she became pregnant, he refused to do so, it was evident that he",
never intended to marry her and procured her consent only for the reason of having,
"sexual relations with her, therefore, the act of the accused fell squarely under the",
definition of rape as her consent was obtained under a misconception of fact.236.,
"1. 'Misconception of fact'.—The expression ""under a misconception of fact"" is broad",
enough to include all cases where the consent is obtained by misrepresentation; the,
misrepresentation should be regarded as leading to a misconception of the facts with,
reference to which the consent is given. In section 3 of the Evidence Act Illustration (d),
"states that a person has a certain intention is treated as a fact. So, here the fact about",
which the second and third prosecution witnesses were made to entertain a,
misconception was the fact that the second accused intended to get the girl married...,
"""thus... if the consent of the person from whose possession the girl is taken is obtained",
"by fraud, the taking is deemed to be against the will of such a person…"" Although in",
cases of contracts a consent obtained by coercion or fraud is only voidable by the party,
"affected by it, the effect of section 90 IPC, 1860 is that such consent cannot, under the",
"criminal law, be availed of to justify what would otherwise be an offence.237. Consent",
"may be express or implied, coerced or misguided, obtained willingly or through deceit.",
"Consent is an act of reason, accompanied by deliberation, the mind weighing, as in a",
"balance, the good and evil on each side. There is a clear distinction between rape and",
"consensual sex and in a case like this, the Court must very carefully examine whether",
"the accused had actually wanted to marry the victim, or had mala fide motives, and had",
"made a false promise to this effect only to satisfy his lust, as the latter falls within the",
ambit of cheating or deception. There is a distinction between the mere breach of a,
"promise, and not fulfilling a false promise. Thus, the Court must examine whether there",
"was made, at an early stage a false promise of marriage by the accused; and whether",
"the consent involved was given after wholly, understanding the nature and",
consequences of sexual indulgence. There may be a case where the prosecutrix agrees,
"to have sexual intercourse on account of her love and passion for the accused, and not",
"solely on account of misrepresentation made to her by the accused, or where an",
"accused on account of circumstances which he could not have foreseen, or which were",
"beyond his control, was unable to marry her, despite having every intention to do so.",
Such cases must be treated differently. An accused can be convicted for rape only if,
"the Court reaches a conclusion that the intention of the accused was mala fide, and",
that he had clandestine motives.238. In order to come within the meaning of,
"misconception of fact, the fact must have an immediate relevance. If a fully grown-up",
girl consents to the act of sexual intercourse on a promise of marriage and continues,
"to indulge in such activity until she becomes pregnant, it is an act of promiscuity on her",
part and not an act induced by misconception of fact and it was held that section 90,
"IPC, 1860 cannot be invoked unless the Court can be assured that from the inception",
"the accused never intended to marry her. Therefore, it depends on case to case that",
what is the evidence led in the matter. If it is a fully grown-up girl who gave the consent,
then it is a different case but a girl whose age is very tender and she is giving a consent,
after persuasion of three months on the promise that the accused will marry her which,
he never intended to fulfil right from the beginning which is apparent from the conduct,
"of the accused, in our opinion, section 90 can be invoked.239. A promise to marry",
"without anything more will not give rise to ""misconception of fact"" within the meaning",
"of section 90, it needs to be clarified that a representation deliberately made by the",
accused with a view to elicit the assent of the victim without having the intention or,
"inclination to marry her, will vitiate the consent. If on the facts it is established that at",
"the very inception of the making of promise, the accused did not really entertain the",
"intention of marrying her and the promise to marry held out by him was a mere hoax,",
the consent ostensibly given by the victim will be of no avail to the accused to,
exculpate him from the ambit of section 375 clause second.240.,
[s 90.2] CASES.—,
The prosecutrix had sexual intercourse with the accused on the representation made,
by the accused that he would marry her. This was a false promise held out by the,
"accused. Had this promise not been given perhaps, she would not have permitted the",
"accused to have sexual intercourse. It appears that the intention of the accused was,",
"right from the beginning, not honest and he kept on promising that he will marry her, till",
she became pregnant. This kind of consent obtained by the accused cannot be said to,
be any consent because she was under a misconception of fact that the accused,
"intends to marry her, therefore, she had submitted to sexual intercourse with him.241. In",
"Uday v State of Karnataka,242. the Court considered the following facts: (i) where a girl",
was of 19 years of age and had sufficient intelligence to understand the significance,
and moral quality of the act she was consenting to; (ii) she was conscious of the fact,
that her marriage was difficult on account of caste considerations; (iii) it was difficult to,
"impute to the appellant, knowledge that the prosecutrix had consented in consequence",
of a misconception of the fact arising from his promise; and (iv) there was no evidence,
to prove conclusively that the appellant never intended to marry the prosecutrix. On the,
"basis of the above factors, Court held that it did not feel persuaded to hold that consent",
was obtained by misconception of facts on the part of the victim.,
"In a case, the prosecutrix had left her home voluntarily, of her own free will to get",
"married to the accused. She was 19 years of age at the relevant time and was, hence,",
capable of understanding the complications and issues surrounding her marriage to,
"the appellant. According to the version of events provided by her, the prosecutrix had",
"called the accused on a number given to her by him, to ask him why he had not met her",
"at the place that had been pre-decided by them. She also waited for him for a long time,",
and when he finally arrived she went with him to the Karna Lake where they indulged in,
sexual intercourse. She did not raise any objection at this stage and made no,
"complaints to anyone. Thereafter, she also went to Kurukshetra with the accused,",
"where she lived with his relatives. Here to, the prosecutrix voluntarily became intimate",
"with the accused. She then, for some reason, went to live in the hostel at Kurukshetra",
"University illegally, and once again came into contact with the accused at the Birla",
"Mandir. Thereafter, she even proceeded with the accused to the old bus-stand in",
"Kurukshetra, to leave for Ambala so that the two of them could get married. However,",
they were apprehended by the police. If the prosecutrix was in fact going to Ambala to,
"marry the accused, as stands fully established from the evidence on record, the",
"Supreme Court held it fails to understand on what basis the allegation of ""false",
"promise of marriage"" has been raised by the prosecutrix.243.",
"1. Shankar Narayan Bhadolkar v State of Maharashtra, AIR 2004 SC 1966 [LNIND 2004 SC 1370] :",
2004 Cr LJ 1778 : (2005) 9 SCC 71 [LNIND 2004 SC 1370] .,
"2. The Indian Evidence Act, I of 1872, section 105.",
"3. Musammat Anandi, (1923) 45 All 329 ; Babulal, 1960 Cr LJ 437 (All).",
"4. A K Chaudhary v State of Gujarat, 2006 Cr LJ 726 (Guj).",
"5. A K Chaudhary v State of Gujarat, 2006 Cr LJ 726 (Guj).",
"222. Story, section 222.",
"223. Lock, (1872) LR 2 CCR 10, 11.",
"224. Satpal Singh v State of Haryana, 2010 AIR (SCW) 4951 : (2010) 8 SCC 714 [LNIND 2010 SC",
666] : 2010 Cr LJ 4283 .,
"225. Md. Jakir Ali v The State of Assam, 2007 Cr LJ 1615 (Gau).",
"226. Re, ( AIR 1960 Madras 308 ), Gopi Shanker v State of Rajasthan, ( AIR 1967 Rajasthan 159 ),",
"Bhimrao v State of Maharashtra, ( 1975 Mah. LJ 660 ) and Vijayan Pillai v State of Kerala, (1989",
"(2) KLJ 234) quoted from R v Day, (173 ER 1026) in 1841 approved in Pradeep Kumar v State of",
"Bihar, AIR 2007 SC 3059 [LNIND 2007 SC 965] : (2007) 7 SCC 413 [LNIND 2007 SC 965] : 2007",
Cr LJ 4333 : (2007) 3 SCC(Cr) 407.,
"227. State of UP v Chhoteylal, AIR 2011 SC 697 [LNIND 2011 SC 73] : (2011) 2 SCC 550 [LNIND",
"2011 SC 73] in this case, SC elaborately discussed the meaning of consent and quoted from",
various Indian and foreign authorities.,
"228. Pradeep Kumar v State of Bihar, AIR 2007 SC 3059 [LNIND 2007 SC 965] : (2007) 7 SCC 413",
[LNIND 2007 SC 965] : 2007 Cr LJ 4333 : (2007) 3 SCC(Cr) 407.,
229. Uday v State of Karnataka AIR 2003 SC 1639 [LNIND 2003 SC 228] : (2003) 4 SCC 46,
[LNIND 2003 SC 228] : 2003 SCC (Cr) 775.,
"230. Deelip Singh v State of Bihar, (2005) 1 SCC 88 [LNIND 2004 SC 1123] : AIR 2005 SC 203",
[LNIND 2004 SC 1123] .,
"231. State of HP v Mango Ram, (2000 (7) SCC 224 [LNIND 2000 SC 1144] : 2000 Cr LJ 4027",
(SC).,
"232. KCPeter v State of Kerala, 2011 Cr LJ 3488 (Ker).",
"233. Karthi @ Karthick v State, 2013 Cr LJ 3765 (SC).",
"234. Laddoo Singh Alias Harjit Singh v State of Punjab, 2008 Cr LJ 2885 (PH).",
"235. Bipul Medhi v State of Assam, 2008 Cr LJ 1099 (Gau).",
"236. State of UP v Naushad, 2014 Cr LJ 540 .",
"237. Pradeep Kumar v State of Bihar, AIR 2007 SC 3059 [LNIND 2007 SC 965] : (2007) 7 SCC 413",
"[LNIND 2007 SC 965] : 2007 Cr LJ 4333 : (2007) 3 SCC(Cr) 407 relied on N Jaladu, Re ( ILR",
(1913) 36 Madras 453 .,
"238. Deepak Gulati v State of Haryana, AIR 2013 SC 2071 [LNIND 2013 SC 533] : 2013 (7) Scale",
383 [LNIND 2013 SC 533] .,
"239. Jayanti Rani Panda v State of WB, 1984 Cr LJ 1535 (Cal).",
"240. Pradeep Kumar v State of Bihar, AIR 2007 SC 3059 [LNIND 2007 SC 965] : (2007) 7 SCC 413",
"[LNIND 2007 SC 965] : 2007 Cr LJ 4333 : (2007) 3 SCC(Cr) 407 relied on N Jaladu, Re ( ILR",
(1913) 36 Madras 453 ).,
"241. Yedla Srinivasa Rao v State of AP, (2006) 11 SCC 615 [LNIND 2006 SC 785] : (2007) 1",
"SCC(Cr) 557; Bipul Medhi v State of Assam, 2008 Cr LJ 1099 (Gau); Abhoy Pradhan v State of WB,",
1999 Cr LJ 3534 (Cal).,
"242. Uday v State of Karnataka, AIR 2003 SC 1639 [LNIND 2003 SC 228] : (2003) 4 SCC 46",
[LNIND 2003 SC 228] : 2003 SCC (Cr) 775.,
"243. Deepak Gulati v State of Haryana, AIR 2013 SC 2071 [LNIND 2013 SC 533] : 2013 (7) Scale",
"383 [LNIND 2013 SC 533] . See also Swapan Chatterjee v State of WB, 2009 Cr LJ 16 (Cal); Karthi",
"@ Karthick v State, 2013 Cr LJ 3765 (SC); Ravi v State, 2010 Cr LJ 3493 (Mad); Vinod Mangilal v",
"State of MP, 2009 Cr LJ 1204 (MP).",
THE INDIAN PENAL CODE,
CHAPTER IV GENERAL EXCEPTIONS,
THIS chapter has been framed in order to obviate the necessity of repeating in every,
penal clause a considerable number of limitations.,
The word 'offence' in this chapter denotes a thing punishable under the Code or under,
any special or local law when it satisfied the conditions laid down in section 40 of the,
Code.,
"The ""general exceptions"" contained in sections 76–106 make an offence a non-offence.",
"The ""general exceptions"" enacted by Indian Penal Code, 1860 (IPC, 1860) are of",
"universal application and for the sake of brevity of expression, instead of repeating in",
"every section that the definition is to be taken subject to the exceptions, the Legislature",
"by section 6 IPC, 1860 enacted that all the definitions must be regarded as subject to",
"the general exceptions. Therefore, general exceptions are part of definition of every",
"offence contained in IPC, 1860, but the burden to prove their existence lied on the",
accused.1.,
The following acts are exempted under the Code from criminal liability:—,
1. Act of a person bound by law to do a certain thing (section 76).,
2. Act of a Judge acting judicially (section 77).,
3. Act done pursuant to an order or a judgment of a Court (section 78).,
"4. Act of a person justified, or believing himself justified, by law (section 79).",
5. Act caused by accident (section 80).,
6. Act likely to cause harm done without criminal intent to prevent other harm,
(section 81).,
7. Act of a child under seven years (section 82).,
"8. Act of a child above seven and under 12 years, but of immature understanding",
(section 83).,
9. Act of a person of unsound mind (section 84).,
10. Act of an intoxicated person (section 85) and partially exempted (section 86).,
11. Act not known to be likely to cause death or grievous hurt done by consent of,
the sufferer (section 87).,
12. Act not intended to cause death done by consent of sufferer (section 88).,
13. Act done in good faith for the benefit of a child or an insane person by or by the,
consent of guardian (section 89).,
14. Act done in good faith for the benefit of a person without consent (section 92).,
15. Communication made in good faith to a person for his benefit (section 93).,
16. Act done under threat of death (section 94).,
17. Act causing slight harm (section 95).,
18. Act done in private defence (sections 96–106).,
"The above exceptions, strictly speaking, come within the following seven categories:—",
"1. Judicial acts (section. 77, 78).",
"2. Mistake of fact (sections 76, 79).",
3. Accident (section 80).,
"4. Absence of criminal intent (sections 81–86, 92–94).",
"5. Consent (sections 87, 90).",
6. Trifling acts (section 95).,
7. Private defence (sections 96–106).,
"Onus of proving exception lies on accused.—When a person is accused of any offence,",
the burden of proving the existence of circumstances bringing the case within any of,
"the general exceptions in the Penal Code, or within any special exception or proviso",
"contained in any other part of the same Code, or in any law defining the offence, is",
"upon him, and the Court shall presume the absence of such circumstances.2.",
Although the law lays down that the onus of proving circumstances which give the,
"benefit of a general exception to an accused person lies on him, and in the absence of",
"evidence the presumption is against the accused, this does not mean that the accused",
"must lead evidence. If it is apparent from the evidence on the record, whether produced",
"by the prosecution or by the defence, that a general exception would apply, then the",
presumption is removed and it is open to the Court to consider whether the evidence,
proves to its satisfaction that the accused comes within the exception.3.,
Applicability of General exceptions during investigation.—In considering that whether,
"accusation made in the complaint makes out a case for commission of offence or not,",
the police while reaching the prima facie satisfaction of suspecting the commission of,
"cognizable offence, cannot ignore the general exception as provided under IPC, 1860",
"as per Chapter IV of IPC, 1860. If on the basis of the allegation made in the complaint,",
"the case is falling in general exceptions, it can be said that the action cannot be termed",
as an offence.4. Investigating officer is bound to investigate and confirm that despite,
"what is contained in the ""General Exceptions""; acts committed by accused shall",
"constitute offence under IPC, 1860. This shall be done, by virtue of section 6 of IPC,",
"1860. In the light of section 6 of IPC, 1860, definition of every offence is to be",
"understood subject to the ""General Exceptions"". Therefore, investigation shall not",
confine merely to the acts committed by a person. Depending on facts and,
"circumstances of each case, many other relevant facts also have to be investigated",
"into, in the light of the provisions contained in ""General Exceptions"". It is only then that",
an investigating officer will be able to confirm whether the act committed by a person,
"is an offence or not, as defined in IPC, 1860 subject to what is contained in ""General",
"Exceptions"". Further, the category of self-defence falling in general exception would fall",
"in a different category than the general exceptions, which are provided in the very",
chapter for exercise of the statutory duty or lawful power either under the mistake of,
law or fact or mistaken belief of law or fact.5.,
[s 91] Exclusion of acts which are offences independently of harm caused.,
"The exceptions in sections 87, 88 and 89 do not extend to acts which are offences",
"independently of any harm which they may cause, or be intended to cause, or be",
"known to be likely to cause, to the person giving the consent, or on whose behalf the",
consent is given.,
ILLUSTRATION,
Causing miscarriage (unless caused in good faith for the purpose of saving the life of,
the woman) is an offence independently of any harm which it may cause or be intended,
"to cause to the woman. Therefore, it is not an offence ""by reason of such harm""; and",
the consent of the woman or of her guardian to the causing of such miscarriage does,
not justify the act.,
COMMENT.—,
"The section serves as a corollary to sections 87, 88 and 89. It says in explicit terms that",
consent will only condone the act causing harm to the person giving the consent which,
will otherwise be an offence. Acts which are offences independently of any harm which,
"they may cause will not be covered by consent given under sections 87, 88 and 89, e.g.,",
"causing miscarriage, public nuisance, offences against public safety, morals, etc. It",
may be stated here that the illustration given under this section has become somewhat,
inappropriate as pregnancy can now be terminated under section 3 of Medical,
"Termination of Pregnancy Act, 1971, on a number of grounds and not only on the",
ground of saving the life of the woman.,
"1. Shankar Narayan Bhadolkar v State of Maharashtra, AIR 2004 SC 1966 [LNIND 2004 SC 1370] :",
2004 Cr LJ 1778 : (2005) 9 SCC 71 [LNIND 2004 SC 1370] .,
"2. The Indian Evidence Act, I of 1872, section 105.",
"3. Musammat Anandi, (1923) 45 All 329 ; Babulal, 1960 Cr LJ 437 (All).",
"4. A K Chaudhary v State of Gujarat, 2006 Cr LJ 726 (Guj).",
"5. A K Chaudhary v State of Gujarat, 2006 Cr LJ 726 (Guj).",
THE INDIAN PENAL CODE,
CHAPTER IV GENERAL EXCEPTIONS,
THIS chapter has been framed in order to obviate the necessity of repeating in every,
penal clause a considerable number of limitations.,
The word 'offence' in this chapter denotes a thing punishable under the Code or under,
any special or local law when it satisfied the conditions laid down in section 40 of the,
Code.,
"The ""general exceptions"" contained in sections 76–106 make an offence a non-offence.",
"The ""general exceptions"" enacted by Indian Penal Code, 1860 (IPC, 1860) are of",
"universal application and for the sake of brevity of expression, instead of repeating in",
"every section that the definition is to be taken subject to the exceptions, the Legislature",
"by section 6 IPC, 1860 enacted that all the definitions must be regarded as subject to",
"the general exceptions. Therefore, general exceptions are part of definition of every",
"offence contained in IPC, 1860, but the burden to prove their existence lied on the",
accused.1.,
The following acts are exempted under the Code from criminal liability:—,
1. Act of a person bound by law to do a certain thing (section 76).,
2. Act of a Judge acting judicially (section 77).,
3. Act done pursuant to an order or a judgment of a Court (section 78).,
"4. Act of a person justified, or believing himself justified, by law (section 79).",
5. Act caused by accident (section 80).,
6. Act likely to cause harm done without criminal intent to prevent other harm,
(section 81).,
7. Act of a child under seven years (section 82).,
"8. Act of a child above seven and under 12 years, but of immature understanding",
(section 83).,
9. Act of a person of unsound mind (section 84).,
10. Act of an intoxicated person (section 85) and partially exempted (section 86).,
11. Act not known to be likely to cause death or grievous hurt done by consent of,
the sufferer (section 87).,
12. Act not intended to cause death done by consent of sufferer (section 88).,
13. Act done in good faith for the benefit of a child or an insane person by or by the,
consent of guardian (section 89).,
14. Act done in good faith for the benefit of a person without consent (section 92).,
15. Communication made in good faith to a person for his benefit (section 93).,
16. Act done under threat of death (section 94).,
17. Act causing slight harm (section 95).,
18. Act done in private defence (sections 96–106).,
"The above exceptions, strictly speaking, come within the following seven categories:—",
"1. Judicial acts (section. 77, 78).",
"2. Mistake of fact (sections 76, 79).",
3. Accident (section 80).,
"4. Absence of criminal intent (sections 81–86, 92–94).",
"5. Consent (sections 87, 90).",
6. Trifling acts (section 95).,
7. Private defence (sections 96–106).,
"Onus of proving exception lies on accused.—When a person is accused of any offence,",
the burden of proving the existence of circumstances bringing the case within any of,
"the general exceptions in the Penal Code, or within any special exception or proviso",
"contained in any other part of the same Code, or in any law defining the offence, is",
"upon him, and the Court shall presume the absence of such circumstances.2.",
Although the law lays down that the onus of proving circumstances which give the,
"benefit of a general exception to an accused person lies on him, and in the absence of",
"evidence the presumption is against the accused, this does not mean that the accused",
"must lead evidence. If it is apparent from the evidence on the record, whether produced",
"by the prosecution or by the defence, that a general exception would apply, then the",
presumption is removed and it is open to the Court to consider whether the evidence,
proves to its satisfaction that the accused comes within the exception.3.,
Applicability of General exceptions during investigation.—In considering that whether,
"accusation made in the complaint makes out a case for commission of offence or not,",
the police while reaching the prima facie satisfaction of suspecting the commission of,
"cognizable offence, cannot ignore the general exception as provided under IPC, 1860",
"as per Chapter IV of IPC, 1860. If on the basis of the allegation made in the complaint,",
"the case is falling in general exceptions, it can be said that the action cannot be termed",
as an offence.4. Investigating officer is bound to investigate and confirm that despite,
"what is contained in the ""General Exceptions""; acts committed by accused shall",
"constitute offence under IPC, 1860. This shall be done, by virtue of section 6 of IPC,",
"1860. In the light of section 6 of IPC, 1860, definition of every offence is to be",
"understood subject to the ""General Exceptions"". Therefore, investigation shall not",
confine merely to the acts committed by a person. Depending on facts and,
"circumstances of each case, many other relevant facts also have to be investigated",
"into, in the light of the provisions contained in ""General Exceptions"". It is only then that",
an investigating officer will be able to confirm whether the act committed by a person,
"is an offence or not, as defined in IPC, 1860 subject to what is contained in ""General",
"Exceptions"". Further, the category of self-defence falling in general exception would fall",
"in a different category than the general exceptions, which are provided in the very",
chapter for exercise of the statutory duty or lawful power either under the mistake of,
law or fact or mistaken belief of law or fact.5.,
[s 92] Act done in good faith for benefit of a person without consent.,
Nothing is an offence by reason of any harm which it may cause to a person for whose,
"benefit it is done in good faith, even without that person's consent, if the",
"circumstances are such that it is impossible for that person to signify consent, or if",
"that person is incapable of giving consent, and has no guardian or other person in",
lawful charge of him from whom it is possible to obtain consent in time for the thing,
to be done with benefit: Provided—,
Provisos.,
"First.—That this exception shall not extend to the intentional causing of death, or",
the attempting to cause death;,
Secondly.—That this exception shall not extend to the doing of anything which the,
"person doing it knows to be likely to cause death, for any purpose other than the",
"preventing of death or grievous hurt, or the curing of any grievous disease or",
infirmity;,
"Thirdly.—That this exception shall not extend to the voluntary causing of hurt, or",
"to the attempting to cause hurt, for any purpose other than the preventing of",
death or hurt;,
"Fourthly.—That this exception shall not extend to the abetment of any offence, to",
the committing of which offence it would not extend.,
ILLUSTRATIONS,
"(a) Z is thrown from his horse, and is insensible. A, a surgeon, finds that Z",
"requires to be trepanned. A, not intending Z's death, but in good faith, for Z's",
"benefit, performs the trepan before Z recovers his power of judging for",
himself. A has committed no offence.,
(b) Z is carried off by a tiger. A fires at the tiger knowing it to be likely that the,
"shot may kill Z, but not intending to kill Z, and in good faith intending Z's",
benefit. A's ball gives Z a mortal wound. A has committed no offence.,
"(c) A, a surgeon, sees a child suffer an accident which is likely to prove fatal",
unless an operation be immediately performed. There is no time to apply to,
the child's guardian. A performs the operation in spite of the entreaties of,
"the child, intending, in good faith, the child's benefit. A has committed no",
offence.,
"(d) A is in a house which is on fire, with Z, a child. People below hold out a",
"blanket. A drops the child from the house-top, knowing it to be likely that the",
"fall may kill the child, but not intending to kill the child, and intending, in",
"good faith, the child's benefit. Here, even if the child is killed by the fall, A",
has committed no offence.,
Explanation.—Mere pecuniary benefit is not benefit within the meaning of,
"sections 88, 89 and 92.",
COMMENT.—,
Acts done in good faith.—This section is designed to meet those cases which do not,
"come either under section 88 or under section 89. The principal object of sections 88,",
89 and 92 is protection of medical practitioners. Illustrations (a) and (b) exemplify,
"cases in which it is impossible to give consent; illustrations (c) and (d), where legal",
capacity to consent is wanting.,
The author of the Code observes:,
There yet remains a kindred class of cases which are by no means of rare occurrence. For,
"example, a person falls down in an apoplectic fit. Bleeding alone can save him, and he is",
unable to signify his consent to be bled. The surgeon who bleeds him commits an act falling,
"under the definition of an offence. The surgeon is not the patient's guardian, and has no",
"authority from any such guardian, yet it is evident that the surgeon ought not to be",
"punished. Again, a house is on fire. A person snatches up a child too young to understand",
"the danger, and flings it from the house-top, with a faint hope that it may be caught on a",
"blanket below, but with the knowledge that it is highly probable that it will be dashed to",
"pieces. Here, though the child may be killed by the fall though the person who threw it down",
"knew that it would very probably be killed, and though he was not the child's parent or",
"guardian, he ought not to be punished.",
In these examples there is what may be called a temporary guardianship justified by the,
exigency of the case and by the humanity of the motive. This temporary guardianship bears,
a considerable analogy to that temporary magistracy with which the law invests every,
"person who is present when a great crime is committed, or when the public peace is",
"concerned. To acts done in the exercise of this temporary guardianship, we extend by",
clause 72 a protection very similar to that which we have given to the acts of regular,
guardians.244.,
"This section speaks of 'hurt', whereas section 89 speaks of 'grievous hurt', otherwise",
the terminology of both the sections is almost identical.,
"1. Shankar Narayan Bhadolkar v State of Maharashtra, AIR 2004 SC 1966 [LNIND 2004 SC 1370] :",
2004 Cr LJ 1778 : (2005) 9 SCC 71 [LNIND 2004 SC 1370] .,
"2. The Indian Evidence Act, I of 1872, section 105.",
"3. Musammat Anandi, (1923) 45 All 329 ; Babulal, 1960 Cr LJ 437 (All).",
"4. A K Chaudhary v State of Gujarat, 2006 Cr LJ 726 (Guj).",
"5. A K Chaudhary v State of Gujarat, 2006 Cr LJ 726 (Guj).",
"244. The Works of Lord Macaulay- 'On the Chapter of General Exceptions', Note B.",
THE INDIAN PENAL CODE,
CHAPTER IV GENERAL EXCEPTIONS,
THIS chapter has been framed in order to obviate the necessity of repeating in every,
penal clause a considerable number of limitations.,
The word 'offence' in this chapter denotes a thing punishable under the Code or under,
any special or local law when it satisfied the conditions laid down in section 40 of the,
Code.,
"The ""general exceptions"" contained in sections 76–106 make an offence a non-offence.",
"The ""general exceptions"" enacted by Indian Penal Code, 1860 (IPC, 1860) are of",
"universal application and for the sake of brevity of expression, instead of repeating in",
"every section that the definition is to be taken subject to the exceptions, the Legislature",
"by section 6 IPC, 1860 enacted that all the definitions must be regarded as subject to",
"the general exceptions. Therefore, general exceptions are part of definition of every",
"offence contained in IPC, 1860, but the burden to prove their existence lied on the",
accused.1.,
The following acts are exempted under the Code from criminal liability:—,
1. Act of a person bound by law to do a certain thing (section 76).,
2. Act of a Judge acting judicially (section 77).,
3. Act done pursuant to an order or a judgment of a Court (section 78).,
"4. Act of a person justified, or believing himself justified, by law (section 79).",
5. Act caused by accident (section 80).,
6. Act likely to cause harm done without criminal intent to prevent other harm,
(section 81).,
7. Act of a child under seven years (section 82).,
"8. Act of a child above seven and under 12 years, but of immature understanding",
(section 83).,
9. Act of a person of unsound mind (section 84).,
10. Act of an intoxicated person (section 85) and partially exempted (section 86).,
11. Act not known to be likely to cause death or grievous hurt done by consent of,
the sufferer (section 87).,
12. Act not intended to cause death done by consent of sufferer (section 88).,
13. Act done in good faith for the benefit of a child or an insane person by or by the,
consent of guardian (section 89).,
14. Act done in good faith for the benefit of a person without consent (section 92).,
15. Communication made in good faith to a person for his benefit (section 93).,
16. Act done under threat of death (section 94).,
17. Act causing slight harm (section 95).,
18. Act done in private defence (sections 96–106).,
"The above exceptions, strictly speaking, come within the following seven categories:—",
"1. Judicial acts (section. 77, 78).",
"2. Mistake of fact (sections 76, 79).",
3. Accident (section 80).,
"4. Absence of criminal intent (sections 81–86, 92–94).",
"5. Consent (sections 87, 90).",
6. Trifling acts (section 95).,
7. Private defence (sections 96–106).,
"Onus of proving exception lies on accused.—When a person is accused of any offence,",
the burden of proving the existence of circumstances bringing the case within any of,
"the general exceptions in the Penal Code, or within any special exception or proviso",
"contained in any other part of the same Code, or in any law defining the offence, is",
"upon him, and the Court shall presume the absence of such circumstances.2.",
Although the law lays down that the onus of proving circumstances which give the,
"benefit of a general exception to an accused person lies on him, and in the absence of",
"evidence the presumption is against the accused, this does not mean that the accused",
"must lead evidence. If it is apparent from the evidence on the record, whether produced",
"by the prosecution or by the defence, that a general exception would apply, then the",
presumption is removed and it is open to the Court to consider whether the evidence,
proves to its satisfaction that the accused comes within the exception.3.,
Applicability of General exceptions during investigation.—In considering that whether,
"accusation made in the complaint makes out a case for commission of offence or not,",
the police while reaching the prima facie satisfaction of suspecting the commission of,
"cognizable offence, cannot ignore the general exception as provided under IPC, 1860",
"as per Chapter IV of IPC, 1860. If on the basis of the allegation made in the complaint,",
"the case is falling in general exceptions, it can be said that the action cannot be termed",
as an offence.4. Investigating officer is bound to investigate and confirm that despite,
"what is contained in the ""General Exceptions""; acts committed by accused shall",
"constitute offence under IPC, 1860. This shall be done, by virtue of section 6 of IPC,",
"1860. In the light of section 6 of IPC, 1860, definition of every offence is to be",
"understood subject to the ""General Exceptions"". Therefore, investigation shall not",
confine merely to the acts committed by a person. Depending on facts and,
"circumstances of each case, many other relevant facts also have to be investigated",
"into, in the light of the provisions contained in ""General Exceptions"". It is only then that",
an investigating officer will be able to confirm whether the act committed by a person,
"is an offence or not, as defined in IPC, 1860 subject to what is contained in ""General",
"Exceptions"". Further, the category of self-defence falling in general exception would fall",
"in a different category than the general exceptions, which are provided in the very",
chapter for exercise of the statutory duty or lawful power either under the mistake of,
law or fact or mistaken belief of law or fact.5.,
[s 93] Communication made in good faith.,
No communication made in good faith is an offence by reason of any harm1 to the,
"person to whom it is made, if it is made for the benefit of that person.",
ILLUSTRATION,
"A, a surgeon, in good faith, communicates to a patient his opinion that he cannot live.",
"The patient dies in consequence of the shock. A has committed no offence, though he",
knew it to be likely that the communication might cause the patient's death.,
COMMENT.—,
This section protects the innocent without unduly cloaking the guilty.,
The communication under this section must be,
(1) made in good faith; and,
(2) for the benefit of the person to whom it is made.,
"The illustration to this section does not say, however, whether the communication was",
made to the patient for his benefit.,
1. 'Harm'.—In this section 'harm' means an injurious mental reaction.245.,
"1. Shankar Narayan Bhadolkar v State of Maharashtra, AIR 2004 SC 1966 [LNIND 2004 SC 1370] :",
2004 Cr LJ 1778 : (2005) 9 SCC 71 [LNIND 2004 SC 1370] .,
"2. The Indian Evidence Act, I of 1872, section 105.",
"3. Musammat Anandi, (1923) 45 All 329 ; Babulal, 1960 Cr LJ 437 (All).",
"4. A K Chaudhary v State of Gujarat, 2006 Cr LJ 726 (Guj).",
"5. A K Chaudhary v State of Gujarat, 2006 Cr LJ 726 (Guj).",
"245. Veeda Menezes v Yusuf Khan, 1966 Cr LJ 1489 : AIR 1966 SC 1773 [LNIND 1966 SC 107] :",
68 Bom LR 629.,
THE INDIAN PENAL CODE,
CHAPTER IV GENERAL EXCEPTIONS,
THIS chapter has been framed in order to obviate the necessity of repeating in every,
penal clause a considerable number of limitations.,
The word 'offence' in this chapter denotes a thing punishable under the Code or under,
any special or local law when it satisfied the conditions laid down in section 40 of the,
Code.,
"The ""general exceptions"" contained in sections 76–106 make an offence a non-offence.",
"The ""general exceptions"" enacted by Indian Penal Code, 1860 (IPC, 1860) are of",
"universal application and for the sake of brevity of expression, instead of repeating in",
"every section that the definition is to be taken subject to the exceptions, the Legislature",
"by section 6 IPC, 1860 enacted that all the definitions must be regarded as subject to",
"the general exceptions. Therefore, general exceptions are part of definition of every",
"offence contained in IPC, 1860, but the burden to prove their existence lied on the",
accused.1.,
The following acts are exempted under the Code from criminal liability:—,
1. Act of a person bound by law to do a certain thing (section 76).,
2. Act of a Judge acting judicially (section 77).,
3. Act done pursuant to an order or a judgment of a Court (section 78).,
"4. Act of a person justified, or believing himself justified, by law (section 79).",
5. Act caused by accident (section 80).,
6. Act likely to cause harm done without criminal intent to prevent other harm,
(section 81).,
7. Act of a child under seven years (section 82).,
"8. Act of a child above seven and under 12 years, but of immature understanding",
(section 83).,
9. Act of a person of unsound mind (section 84).,
10. Act of an intoxicated person (section 85) and partially exempted (section 86).,
11. Act not known to be likely to cause death or grievous hurt done by consent of,
the sufferer (section 87).,
12. Act not intended to cause death done by consent of sufferer (section 88).,
13. Act done in good faith for the benefit of a child or an insane person by or by the,
consent of guardian (section 89).,
14. Act done in good faith for the benefit of a person without consent (section 92).,
15. Communication made in good faith to a person for his benefit (section 93).,
16. Act done under threat of death (section 94).,
17. Act causing slight harm (section 95).,
18. Act done in private defence (sections 96–106).,
"The above exceptions, strictly speaking, come within the following seven categories:—",
"1. Judicial acts (section. 77, 78).",
"2. Mistake of fact (sections 76, 79).",
3. Accident (section 80).,
"4. Absence of criminal intent (sections 81–86, 92–94).",
"5. Consent (sections 87, 90).",
6. Trifling acts (section 95).,
7. Private defence (sections 96–106).,
"Onus of proving exception lies on accused.—When a person is accused of any offence,",
the burden of proving the existence of circumstances bringing the case within any of,
"the general exceptions in the Penal Code, or within any special exception or proviso",
"contained in any other part of the same Code, or in any law defining the offence, is",
"upon him, and the Court shall presume the absence of such circumstances.2.",
Although the law lays down that the onus of proving circumstances which give the,
"benefit of a general exception to an accused person lies on him, and in the absence of",
"evidence the presumption is against the accused, this does not mean that the accused",
"must lead evidence. If it is apparent from the evidence on the record, whether produced",
"by the prosecution or by the defence, that a general exception would apply, then the",
presumption is removed and it is open to the Court to consider whether the evidence,
proves to its satisfaction that the accused comes within the exception.3.,
Applicability of General exceptions during investigation.—In considering that whether,
"accusation made in the complaint makes out a case for commission of offence or not,",
the police while reaching the prima facie satisfaction of suspecting the commission of,
"cognizable offence, cannot ignore the general exception as provided under IPC, 1860",
"as per Chapter IV of IPC, 1860. If on the basis of the allegation made in the complaint,",
"the case is falling in general exceptions, it can be said that the action cannot be termed",
as an offence.4. Investigating officer is bound to investigate and confirm that despite,
"what is contained in the ""General Exceptions""; acts committed by accused shall",
"constitute offence under IPC, 1860. This shall be done, by virtue of section 6 of IPC,",
"1860. In the light of section 6 of IPC, 1860, definition of every offence is to be",
"understood subject to the ""General Exceptions"". Therefore, investigation shall not",
confine merely to the acts committed by a person. Depending on facts and,
"circumstances of each case, many other relevant facts also have to be investigated",
"into, in the light of the provisions contained in ""General Exceptions"". It is only then that",
an investigating officer will be able to confirm whether the act committed by a person,
"is an offence or not, as defined in IPC, 1860 subject to what is contained in ""General",
"Exceptions"". Further, the category of self-defence falling in general exception would fall",
"in a different category than the general exceptions, which are provided in the very",
chapter for exercise of the statutory duty or lawful power either under the mistake of,
law or fact or mistaken belief of law or fact.5.,
[s 94] Act to which a person is compelled by threats.,
"Except murder, and offences against the State punishable with death, nothing is an",
"offence which is done by a person who is compelled to do it by threats, which, at the",
"time of doing it, reasonably cause the apprehension that instant death to that person",
will otherwise be the consequence : Provided the person doing the act did not of his,
"own accord, or from a reasonable apprehension of harm to himself short of instant",
"death, place himself in the situation by which he became subject to such constraint.",
"Explanation 1.—A person who, of his own accord, or by reason of a threat of being",
"beaten, joins a gang of dacoits, knowing their character, is not entitled to the benefit",
"of this exception, on the ground of his having been compelled by his associates to do",
anything that is an offence by law.,
"Explanation 2.—A person seized by a gang of dacoits, and forced, by threat of instant",
"death, to do a thing which is an offence by law; for example, a smith compelled to take",
"his tools and to force the door of a house for the dacoits to enter and plunder it, is",
entitled to the benefit of this exception.,
COMMENT.—,
"By this section a person is excused from the consequences of any act, except (1)",
"murder and (2) offences against the State punishable with death, done under fear of",
instant death; but fear of hurt or even of grievous hurt is not a sufficient justification.,
Mere menace of future death will not be sufficient.,
Murder committed under a threat of instant death is not excused under this section.,
But 'murder' does not include abetment of murder and such abetment will be,
excused.246. Abetment of murder and of the offence of causing disappearance of the,
evidence of murder was excused under this section when it was done under fear of,
instant death at the hands of the murderers.247.,
[s 94.1] Doctrine of compulsion and necessity.—,
No one can plead the excuse of necessity or compulsion as a defence of an act,
"otherwise penal, except as provided in this section. No man from a fear of",
consequences to himself has a right to make himself a party to committing mischief,
on mankind.248.,
"Except where unsoundness of mind is proved or real fear of instant death is proved, the",
"burden of proof being on the prisoner, pressure of temptation is not an excuse for",
breaking the law.249. Under the English law the defence of duress is available not only,
in case of fear of instant death but also in case of serious bodily harm.250.,
"Furthermore, such a threat need not be always against the person of the accused.251.",
This defence was not allowed to a person who voluntarily joined a criminal,
organisation or gang with knowledge that the gang used loaded firearms to carry out,
robberies on sub-post offices and also that the leader of the gang might bring pressure,
upon him to participate in such offences. He had accordingly to participate in a robbery,
under pressure in which the leader shot dead the sub-post master. His appeal against,
conviction for man slaughter was rejected.252.,
"1. Shankar Narayan Bhadolkar v State of Maharashtra, AIR 2004 SC 1966 [LNIND 2004 SC 1370] :",
2004 Cr LJ 1778 : (2005) 9 SCC 71 [LNIND 2004 SC 1370] .,
"2. The Indian Evidence Act, I of 1872, section 105.",
"3. Musammat Anandi, (1923) 45 All 329 ; Babulal, 1960 Cr LJ 437 (All).",
"4. A K Chaudhary v State of Gujarat, 2006 Cr LJ 726 (Guj).",
"5. A K Chaudhary v State of Gujarat, 2006 Cr LJ 726 (Guj).",
"246. Umadasi Dasi, (1924) 52 Cal 112 : Karu, (1937) Nag 524. But see R v Howe, (1987) 1 All ER",
"770 HL, where it was noted that the defence of duress is not available to a person charged with",
murder whether as a principal in the first degree (the actual killer) or as principal in the second,
degree (the aider and abettor).,
"247. Bachchan Lal, 1957 Cr LJ 344 .",
"248. Maganlal and Motilal, (1889) 14 Bom 115.",
"249. Devji Govindji, (1895) 20 Bom 215, 222, 223.",
"250. Director of Public Prosecutions for Northern Ireland v Lynch, (1975) 1 All ER 913 -Per House",
of Lords.,
251. Hurley (1967) VR 526.,
"252. R v Sharp, (1987) 3 All ER 103 CA. Following Lynch v DPP for Northern Ireland, (1975) 1 All",
ER 913 : (1975) AC 653 .,
THE INDIAN PENAL CODE,
CHAPTER IV GENERAL EXCEPTIONS,
THIS chapter has been framed in order to obviate the necessity of repeating in every,
penal clause a considerable number of limitations.,
The word 'offence' in this chapter denotes a thing punishable under the Code or under,
any special or local law when it satisfied the conditions laid down in section 40 of the,
Code.,
"The ""general exceptions"" contained in sections 76–106 make an offence a non-offence.",
"The ""general exceptions"" enacted by Indian Penal Code, 1860 (IPC, 1860) are of",
"universal application and for the sake of brevity of expression, instead of repeating in",
"every section that the definition is to be taken subject to the exceptions, the Legislature",
"by section 6 IPC, 1860 enacted that all the definitions must be regarded as subject to",
"the general exceptions. Therefore, general exceptions are part of definition of every",
"offence contained in IPC, 1860, but the burden to prove their existence lied on the",
accused.1.,
The following acts are exempted under the Code from criminal liability:—,
1. Act of a person bound by law to do a certain thing (section 76).,
2. Act of a Judge acting judicially (section 77).,
3. Act done pursuant to an order or a judgment of a Court (section 78).,
"4. Act of a person justified, or believing himself justified, by law (section 79).",
5. Act caused by accident (section 80).,
6. Act likely to cause harm done without criminal intent to prevent other harm,
(section 81).,
7. Act of a child under seven years (section 82).,
"8. Act of a child above seven and under 12 years, but of immature understanding",
(section 83).,
9. Act of a person of unsound mind (section 84).,
10. Act of an intoxicated person (section 85) and partially exempted (section 86).,
11. Act not known to be likely to cause death or grievous hurt done by consent of,
the sufferer (section 87).,
12. Act not intended to cause death done by consent of sufferer (section 88).,
13. Act done in good faith for the benefit of a child or an insane person by or by the,
consent of guardian (section 89).,
14. Act done in good faith for the benefit of a person without consent (section 92).,
15. Communication made in good faith to a person for his benefit (section 93).,
16. Act done under threat of death (section 94).,
17. Act causing slight harm (section 95).,
18. Act done in private defence (sections 96–106).,
"The above exceptions, strictly speaking, come within the following seven categories:—",
"1. Judicial acts (section. 77, 78).",
"2. Mistake of fact (sections 76, 79).",
3. Accident (section 80).,
"4. Absence of criminal intent (sections 81–86, 92–94).",
"5. Consent (sections 87, 90).",
6. Trifling acts (section 95).,
7. Private defence (sections 96–106).,
"Onus of proving exception lies on accused.—When a person is accused of any offence,",
the burden of proving the existence of circumstances bringing the case within any of,
"the general exceptions in the Penal Code, or within any special exception or proviso",
"contained in any other part of the same Code, or in any law defining the offence, is",
"upon him, and the Court shall presume the absence of such circumstances.2.",
Although the law lays down that the onus of proving circumstances which give the,
"benefit of a general exception to an accused person lies on him, and in the absence of",
"evidence the presumption is against the accused, this does not mean that the accused",
"must lead evidence. If it is apparent from the evidence on the record, whether produced",
"by the prosecution or by the defence, that a general exception would apply, then the",
presumption is removed and it is open to the Court to consider whether the evidence,
proves to its satisfaction that the accused comes within the exception.3.,
Applicability of General exceptions during investigation.—In considering that whether,
"accusation made in the complaint makes out a case for commission of offence or not,",
the police while reaching the prima facie satisfaction of suspecting the commission of,
"cognizable offence, cannot ignore the general exception as provided under IPC, 1860",
"as per Chapter IV of IPC, 1860. If on the basis of the allegation made in the complaint,",
"the case is falling in general exceptions, it can be said that the action cannot be termed",
as an offence.4. Investigating officer is bound to investigate and confirm that despite,
"what is contained in the ""General Exceptions""; acts committed by accused shall",
"constitute offence under IPC, 1860. This shall be done, by virtue of section 6 of IPC,",
"1860. In the light of section 6 of IPC, 1860, definition of every offence is to be",
"understood subject to the ""General Exceptions"". Therefore, investigation shall not",
confine merely to the acts committed by a person. Depending on facts and,
"circumstances of each case, many other relevant facts also have to be investigated",
"into, in the light of the provisions contained in ""General Exceptions"". It is only then that",
an investigating officer will be able to confirm whether the act committed by a person,
"is an offence or not, as defined in IPC, 1860 subject to what is contained in ""General",
"Exceptions"". Further, the category of self-defence falling in general exception would fall",
"in a different category than the general exceptions, which are provided in the very",
chapter for exercise of the statutory duty or lawful power either under the mistake of,
law or fact or mistaken belief of law or fact.5.,
[s 95] Act causing slight harm.,
"Nothing is an offence by reason that it causes, or that it is intended to cause, or that it",
"is known to be likely to cause, any harm, if that harm is so slight that no person of",
ordinary sense and temper would complain of such harm.,
COMMENT.—,
slight harm or trifles.—The maxim de minimis non curat lex (the law takes no account,
of trifles) is the foundation of this section. The authors of the Code observe:,
"Clause 73 [this section] is intended to provide for those cases which, though, from the",
"imperfections of language, fall within the letter of the penal law, are yet not within its spirit,",
"and are all over the world considered by the public, and for the most part dealt with by the",
"tribunals, as innocent. As our definitions are framed, it is theft to dip a pen in another man's",
"ink, mischief to crumble one of his wafers, an assault to cover him with a cloud of dust by",
"riding past him, hurt to incommode him by pressing against him in getting into a carriage.",
"There are innumerable acts without performing which men cannot live together in society,",
"acts which all men constantly do and suffer in turn, and which it is desirable that they",
"should do and suffer in turn, yet which differ only in degree from crimes. That these acts",
"ought not to be treated as crimes is evident, and we think it far better expressly to except",
them from the penal clauses of the Code than to leave it to the judges to except them in,
practice.253.,
The expression 'harm' has been used in this section in a wide sense including physical,
"injury and hence, this section applies in cases of actual physical injury also. This",
section applies not only to acts which are accidental but also to deliberate acts which,
cause harm or are intended to cause harm or known to be likely to cause harm.254. In a,
"campaign by Sarvodaya workers to educate people about the evil of alcohol, liquor",
shops were picketed to prevent people from going there even if it was at the cost of,
slight harm; their prosecution under section 341 for causing wrongful restraint was,
quashed.255. Where the accused locked the complainant inside the factory by pulling,
"down the shutter, it was held that ingredients of the offence under section 342",
(wrongful confinement) were established but as the complainant regained his freedom,
"within a very short time and only a minimal harm was caused, the case was clearly",
covered by section 95.256.,
[s 95.1] CASES.—Acts regarded as trivial.—,
"This section was applied where a person was convicted for taking pods, almost",
"valueless, from a tree standing on Government waste land;257. where the accused",
committed theft of a cheque of no value258. and where the plaintiff complained of the,
harm caused to his reputation by the imputation that he was travelling with a wrong,
ticket.259. So also an offence of misbranding260. and the conduct of a lawyer in using,
filthy language in course of cross-examination261. were treated as trivial.,
"Where the record of the trial Court showed that the injury caused was very simple,",
"being in the nature of a scratch, the Court said that the act was so trivial that no person",
of a sound common sense would regard it as an offence. The prayer of the,
complainant for conviction of the accused for causing simple hurt under section 323,
was liable to be rejected.262.,
[s 95.2] Acts not regarded as trivial.—,
"The top most official of the State Police, indecently behaved with a senior lady IAS",
"Officer, in the presence of gentry and in spite of her raising objections continued with",
"such behaviour. The Supreme Court observed that if it is held, on the face of such",
"allegations that, the ignominy and trauma to which, she was subjected to was so slight",
"that the lady IAS Officer, as a person of ordinary sense and temper, would not complain",
"about the same, sagacity will be the first casualty. In that view of the matter section 95,",
"IPC, 1860 cannot have any manner of application to an offence relating to modesty of",
woman as under no circumstances can it be trivial.263. Where the Accused caused the,
"deceased to fall down and co-accused threw down a heavy stone on head of deceased,",
act attributed to accused formed part of a joint yet a murderous assault on deceased.,
"Hence, it is not covered by exception in section 95.264. Where a blow was given across",
the chest with an umbrella by a dismissed policeman to a District Superintendent of,
Police because his application to reconsider his case was rejected;265. where the,
accused tore up a paper which showed a money debt due from him to the prosecutor,
"though it was unstamped, and therefore, not a legal security;266. and where a",
"respectable man was taken by the ear,267. it was held that this section did not apply. An",
"offence under Prevention of Food Adulteration Act, 1954 cannot be regarded as",
trivial.268.,
"1. Shankar Narayan Bhadolkar v State of Maharashtra, AIR 2004 SC 1966 [LNIND 2004 SC 1370] :",
2004 Cr LJ 1778 : (2005) 9 SCC 71 [LNIND 2004 SC 1370] .,
"2. The Indian Evidence Act, I of 1872, section 105.",
"3. Musammat Anandi, (1923) 45 All 329 ; Babulal, 1960 Cr LJ 437 (All).",
"4. A K Chaudhary v State of Gujarat, 2006 Cr LJ 726 (Guj).",
"5. A K Chaudhary v State of Gujarat, 2006 Cr LJ 726 (Guj).",
"253. The Works of Lord Macaulay- 'On the Chapter of General Exceptions', Note B, pp. 109, 110.",
"254. Veeda Menezes v Yusuf Khan, 1966 Cr LJ 1489 : AIR 1966 SC 1773 [LNIND 1966 SC 107] :",
68 Bom LR 629.,
"255. Narayanan v State of Kerala, 1987 Cr LJ 741 Ker; following Attappa Re, AIR 1951 Mad 759",
"[LNIND 1950 MAD 178] : 1951 (2) Cr LJ 716 , where it was observed that even if obstruction is",
"caused, if the harm caused is slight, section 95 would apply.",
"256. Anoop Krishan Sharma v State of Maharashtra, 1992 Cr LJ 1861 (Bom).",
"257. Kasyabin Ravji, (1868) 5 BHC (Cr C) 35.",
"258. Ethirajan, 1955 Cr LJ 816 .",
"259. South Indian Railway Co v Ramakrishna, (1889) 13 Mad 34.",
"260. Public Prosecutor v K Satyanarayana, 1975 Cr LJ 1127 (AP).",
"261. Bheema, 1964 (2) Cr LJ 692 (AP).",
"262. State of Karnataka v M Babu, 2002 Cr LJ 2604 (Kant), the Court discussed the doctrine of",
triviality.,
"263. Rupan Deol Bajaj v Kanwar Pal Singh Gill, AIR 1996 SC 309 [LNIND 1995 SC 981] : (1995) 6",
SCC 194 [LNIND 1995 SC 981] : JT 1995 (7) SC 299 [LNIND 1995 SC 981] : (1995) 5 Scale 670 :,
1996 Cr LJ 381 .,
264. Athai v State of MP 2010 Cr LJ 995 (MP).,
"265. Sheo Gholam Lalla, (1875) 24 WR (Cr) 67.",
"266. Ramasami v State, (1888) 12 Mad 148.",
"267. Shoshi Bhusan Mukerjee v Walmsley, (1897) 1 CWN.",
"268. Dist Food Inspector v Kedarnath, 1981 Cr LJ 904 (Gau).; State of Kerala v Vasudevan Nair",
(Ker) (FB) 1975 FAJ 36 : ( 1975 Cr LJ 97 ); M/s. Razak Rice And Oil Mills v Bharat Narayan,
"Patnaik, Food Inspector, Berhampur Municipality 1989 Cr LJ 648 (Ori).",
THE INDIAN PENAL CODE,
CHAPTER IV GENERAL EXCEPTIONS,
THIS chapter has been framed in order to obviate the necessity of repeating in every,
penal clause a considerable number of limitations.,
The word 'offence' in this chapter denotes a thing punishable under the Code or under,
any special or local law when it satisfied the conditions laid down in section 40 of the,
Code.,
"The ""general exceptions"" contained in sections 76–106 make an offence a non-offence.",
"The ""general exceptions"" enacted by Indian Penal Code, 1860 (IPC, 1860) are of",
"universal application and for the sake of brevity of expression, instead of repeating in",
"every section that the definition is to be taken subject to the exceptions, the Legislature",
"by section 6 IPC, 1860 enacted that all the definitions must be regarded as subject to",
"the general exceptions. Therefore, general exceptions are part of definition of every",
"offence contained in IPC, 1860, but the burden to prove their existence lied on the",
accused.1.,
The following acts are exempted under the Code from criminal liability:—,
1. Act of a person bound by law to do a certain thing (section 76).,
2. Act of a Judge acting judicially (section 77).,
3. Act done pursuant to an order or a judgment of a Court (section 78).,
"4. Act of a person justified, or believing himself justified, by law (section 79).",
5. Act caused by accident (section 80).,
6. Act likely to cause harm done without criminal intent to prevent other harm,
(section 81).,
7. Act of a child under seven years (section 82).,
"8. Act of a child above seven and under 12 years, but of immature understanding",
(section 83).,
9. Act of a person of unsound mind (section 84).,
10. Act of an intoxicated person (section 85) and partially exempted (section 86).,
11. Act not known to be likely to cause death or grievous hurt done by consent of,
the sufferer (section 87).,
12. Act not intended to cause death done by consent of sufferer (section 88).,
13. Act done in good faith for the benefit of a child or an insane person by or by the,
consent of guardian (section 89).,
14. Act done in good faith for the benefit of a person without consent (section 92).,
15. Communication made in good faith to a person for his benefit (section 93).,
16. Act done under threat of death (section 94).,
17. Act causing slight harm (section 95).,
18. Act done in private defence (sections 96–106).,
"The above exceptions, strictly speaking, come within the following seven categories:—",
"1. Judicial acts (section. 77, 78).",
"2. Mistake of fact (sections 76, 79).",
3. Accident (section 80).,
"4. Absence of criminal intent (sections 81–86, 92–94).",
"5. Consent (sections 87, 90).",
6. Trifling acts (section 95).,
7. Private defence (sections 96–106).,
"Onus of proving exception lies on accused.—When a person is accused of any offence,",
the burden of proving the existence of circumstances bringing the case within any of,
"the general exceptions in the Penal Code, or within any special exception or proviso",
"contained in any other part of the same Code, or in any law defining the offence, is",
"upon him, and the Court shall presume the absence of such circumstances.2.",
Although the law lays down that the onus of proving circumstances which give the,
"benefit of a general exception to an accused person lies on him, and in the absence of",
"evidence the presumption is against the accused, this does not mean that the accused",
"must lead evidence. If it is apparent from the evidence on the record, whether produced",
"by the prosecution or by the defence, that a general exception would apply, then the",
presumption is removed and it is open to the Court to consider whether the evidence,
proves to its satisfaction that the accused comes within the exception.3.,
Applicability of General exceptions during investigation.—In considering that whether,
"accusation made in the complaint makes out a case for commission of offence or not,",
the police while reaching the prima facie satisfaction of suspecting the commission of,
"cognizable offence, cannot ignore the general exception as provided under IPC, 1860",
"as per Chapter IV of IPC, 1860. If on the basis of the allegation made in the complaint,",
"the case is falling in general exceptions, it can be said that the action cannot be termed",
as an offence.4. Investigating officer is bound to investigate and confirm that despite,
"what is contained in the ""General Exceptions""; acts committed by accused shall",
"constitute offence under IPC, 1860. This shall be done, by virtue of section 6 of IPC,",
"1860. In the light of section 6 of IPC, 1860, definition of every offence is to be",
"understood subject to the ""General Exceptions"". Therefore, investigation shall not",
confine merely to the acts committed by a person. Depending on facts and,
"circumstances of each case, many other relevant facts also have to be investigated",
"into, in the light of the provisions contained in ""General Exceptions"". It is only then that",
an investigating officer will be able to confirm whether the act committed by a person,
"is an offence or not, as defined in IPC, 1860 subject to what is contained in ""General",
"Exceptions"". Further, the category of self-defence falling in general exception would fall",
"in a different category than the general exceptions, which are provided in the very",
chapter for exercise of the statutory duty or lawful power either under the mistake of,
law or fact or mistaken belief of law or fact.5.,
Of the Right of Private Defence,
[s 96] Things done in private defence.,
Nothing is an offence which is done in the exercise of the right of private defence.,
COMMENT.—,
In a civilised society the defence of person and property of every member thereof is the,
"responsibility of the State. Consequently, there is a duty cast on every person faced",
with apprehension of imminent danger of his person or property to seek the aid of the,
"machinery provided by the State but if immediately such aid is not available, he has the",
right of private defence. Right to private defence is a very valuable right and it has been,
recognized in all civilized and democratic societies within certain reasonable limits.,
"Sections 96–106 of IPC, 1860 codify the entire law relating to right of private defence",
of person and property including the extent of and the limitation to exercise of such,
"right. When enacting sections 96 to 106 of the IPC, 1860, excepting from its penal",
"provisions, certain classes of acts, done in good faith for the purpose of repelling",
"unlawful aggressions, the Legislature clearly intended to arouse and encourage the",
"manly spirit of self-defence amongst the citizens, when faced with grave danger.269.",
[s 96.1] Principle.—,
The basic principle underlying the doctrine of the right of private defence is that when,
an individual or his property is faced with a danger and immediate aid from the State,
"machinery is not readily available, that individual is entitled to protect himself and his",
property.270. The right of private defence is available only to one who is suddenly,
confronted with the necessity of averting an impending danger not of self-creation.,
"That being so, the necessary corollary is that the violence which the citizen defending",
himself or his property is entitled to use must not be unduly disproportionate to the,
injury which is sought to be averted or which is reasonably apprehended and should,
not exceed its legitimate purpose. The law does not require a law abiding citizen to,
behave like a coward when confronted with an imminent unlawful aggression. There is,
nothing more degrading to the human spirit than to run away in face of danger. The,
"right of private defence is thus, designed to serve a social purpose and deserves to be",
"fostered within the prescribed limits. The IPC, 1860 defines homicide in self-defence as",
"a form of substantive right, and therefore, save and except the restrictions imposed on",
"the right of the Code itself, it seems that the special rule of English Law as to the duty",
of retreating will have no application to this country where there is a real need for,
defending oneself against deadly assaults. The right to protect one's own person and,
property against the unlawful aggressions of others is a right inherent in man. The duty,
of protecting the person and property of others is a duty which man owes to society of,
"which he is a member and the preservation of which is both his interest and duty. It is,",
"indeed, a duty which flows from human sympathy.",
As Bentham said:,
"It is a noble movement of the heart, that indignation which kindles at the sight of the feeble",
injured by the strong. It is noble movement which makes us forget our danger at the first cry,
of distress..... It concerns the public safety that every honest man should consider himself,
as the natural protector of every other.,
But such protection must not be extended beyond the necessities of the case;,
"otherwise it will encourage a spirit or lawlessness and disorder. The right has,",
"therefore, been restricted to offences against the human body and those relating to",
aggression on property. Right of private defence of person and property is recognized,
"in all free, civilised, democratic societies within certain reasonable limits. Those limits",
are dictated by two considerations: (1) that the same right is claimed by all other,
members of the society and (2) that it is the State which generally undertakes the,
"responsibility for the maintenance of law and order. The citizens, as a general rule, are",
neither expected to run away for safety when faced with grave and imminent danger to,
"their person or property as a result of unlawful aggression, nor are they expected, by",
"use of force, to right the wrong done to them or to punish the wrong doer of",
commission of offences.271.,
[s 96.2] Scope.—,
"Section 96 IPC, 1860 provides that nothing is an offence which is done in the exercise",
"of the right of private defence. The section does not define the expression ""right of",
"private defence"". It merely indicates that nothing is an offence which is done in the",
"exercise of such right.272. While providing for exercise of the right, care has been taken",
"in IPC, 1860 not to provide and has not devised a mechanism whereby an attack may",
be a pretence for killing. A right to defend does not include a right to launch an,
"offensive, particularly when the need to defend no longer survived.273. Just because",
"one circumstance exists amongst the various factors, which appears to favour the",
"person claiming right of self-defence, does not mean that he gets the right to cause the",
death of the other person. Even the right of self-defence has to be exercised directly in,
proportion to the extent of aggression.274.,
[s 96.3] Test.—,
"Whether in a particular set of circumstances, a person legitimately acted in the",
exercise of the right of private defence is a question of fact to be determined on the,
facts and circumstances of each case. No test in the abstract for determining such a,
"question can be laid down. In determining this question of fact, the Court must",
consider all the surrounding circumstances. It is not necessary for the accused to,
plead in so many words that he acted in self-defence. If the circumstances show that,
"the right of private defence was legitimately exercised, it is open to the Court to",
consider such a plea.275. The means and the force a threatened person adopts at the,
spur of the moment to ward off the danger and to save himself or his property cannot,
be weighed in golden scales. It is neither possible nor prudent to lay down abstract,
parameters which can be applied to determine as to whether the means and force,
adopted by the threatened person was proper or not. Answer to such a question,
depends upon host of factors like the prevailing circumstances at the spot; his feelings,
at the relevant time; the confusion and the excitement depending on the nature of,
"assault on him etc. Nonetheless, the exercise of the right of private defence can never",
be vindictive or malicious. It would be repugnant to the very concept of private,
defence.276. A person who is apprehending death or bodily injury cannot weigh in,
"golden scales in the spur of moment and in the heat of circumstances, the number of",
injuries required to disarm the assailants who were armed with weapons. In moments,
of excitement and disturbed mental equilibrium it is often difficult to expect the parties,
to preserve composure and use exactly only so much force in retaliation,
commensurate with the danger apprehended to him where assault is imminent by use,
"of force, it would be lawful to repel the force in self-defence and the right of private",
"defence commences, as soon as the threat becomes so imminent. Such situations",
have to be pragmatically viewed and not with high powered spectacles or microscopes,
"to detect slight or even marginal overstepping. Due weightage has to be given to, and",
hyper technical approach has to be avoided in considering what happens on the spur of,
"the moment on the spot and keeping in view normal human reaction and conduct,",
"where self-preservation is the paramount consideration. But, if the fact situation shows",
"that in the guise of self-preservation, what really has been done is to assault the",
"original aggressor, even after the cause of reasonable apprehension has disappeared,",
the plea of right of private defence can legitimately be negatived. The Court dealing,
with the plea has to weigh the material to conclude whether the plea is acceptable. It is,
"essentially, as noted above, a finding of fact.277. Situations have to be judged from the",
subjective point of view of the accused concerned in the surrounding excitement and,
"confusion of the moment, confronted with a situation of peril and not by any",
microscopic and pedantic scrutiny. In adjudging the question as to whether more force,
than was necessary was used in the prevailing circumstances on the spot it would be,
"inappropriate, as held by this Court, to adopt tests by detached objectivity which would",
"be so natural in a Court room, or that which would seem absolutely necessary to a",
perfectly cool bystander. The person facing a reasonable apprehension of threat to,
himself cannot be expected to modulate his defence step-by-step with any arithmetical,
exactitude of only that much which is required in the thinking of a man in ordinary,
times or under normal circumstances.278.,
"Mere use of abusive language does not give rise to private defence. Thus, where the",
deceased about a month before the murder had tried to outrage the modesty of the,
wife of the accused and thereafter on the day of the incident cut a rustic joke enquiring,
whether the accused had not kept buffaloes for drinking milk which lead the accused,
"to beat the deceased mercilessly resulting in his death, it was held that giving the most",
charitable interpretation one could not find a single circumstance which will give the,
accused the benefit of the right of private defence and the interval between the attempt,
to outrage the modesty of the accused's wife and the murder being too long he was,
also not entitled to get the benefit of grave and sudden provocation within the meaning,
"of exception 1 to section 300, IPC, 1860.279. Giving a general view of all the provisions",
"on this right in Munney Khan v State,280. the Supreme Court observed:",
"The right of private defence is codified in sections 96 to 106, IPC, which have all to be",
read together in order to have a proper grasp of the scope and limitations of this right.,
By enacting the sections the authors of the Code wanted to except from the operation,
of its penal clauses acts done in good faith for the purpose of repelling unlawful,
aggression.281.,
Summary of Principles regarding Private defence,
(i) Self-preservation is the basic human instinct and is duly recognized by the,
"criminal jurisprudence of all civilized countries. All free, democratic and civilized",
countries recognize the right of private defence within certain reasonable limits.,
(ii) The right of private defence is available only to one who is suddenly confronted,
with the necessity of averting an impending danger and not of self-creation.,
(iii) A mere reasonable apprehension is enough to put the right of self-defence into,
"operation. In other words, it is not necessary that there should be an actual",
commission of the offence in order to give rise to the right of private defence. It,
is enough if the accused apprehended that such an offence is contemplated,
and it is likely to be committed if the right of private defence is not exercised.,
(iv) The right of private defence commences as soon as a reasonable apprehension,
arises and it is co-terminus with the duration of such apprehension.,
(v) It is unrealistic to expect a person under assault to modulate his defence step by,
step with any arithmetical exactitude.,
(vi) In private defence the force used by the accused ought not to be wholly,
disproportionate or much greater than necessary for protection of the person or,
property.,
"(vii) It is well settled that even if the accused does not plead self-defence, it is open",
to consider such a plea if the same arises from the material on record.,
(viii) The accused need not prove the existence of the right of private defence,
beyond reasonable doubt.,
"(ix) The IPC, 1860 confers the right of private defence only when that unlawful or",
wrongful act is an offence.,
(x) A person who is in imminent and reasonable danger of losing his life or limb,
may in exercise of self-defence inflict any harm even extending to death on his,
assailant either when the assault is attempted or directly threatened.,
[Darshan Singh v State of Punjab.282.],
All the sections would have to be read together to ascertain whether in the facts and,
circumstances of the case the accused were entitled to the defence or they exceeded,
it. Only then one can get a comprehensive view of the scope and limitations of the,
right.283.,
1. Availability or Non-availability of private defence.—Factors to be kept in view.— In,
"order to find whether right of private defence is available or not, the entire incident",
must be examined with care and viewed in its proper setting. The injuries received by,
"the accused, the imminence of threat to his safety, the injuries caused by the accused",
and the circumstances whether the accused had time to have recourse to public,
authorities are all relevant factors to be considered on a plea of private defence.284.,
The right of private defence is a defence right. It is neither a right of aggression nor a,
right of reprisal. There is no right of private defence where there is no apprehension of,
danger. Right of private defence is available only to one who is suddenly confronted,
with the necessity of averting an impending danger not of self-creation. The necessity,
must be a present necessity whether real or only apparent.285. It remains a question of,
"fact whether the right has been legitimately exercised.286. Thus, running to house,",
fetching a sword and assaulting the deceased are by no means a matter of chance.,
These acts bear stamp of a design to kill and take the case out of the purview of,
private defence.287. But where the accused was dispossessed of his land by a party of,
men and he ran to his residence from where he fetched his gun and came back within,
"15 minutes to fire at and injure them, he was held to be within his rights, but when he",
went further still and chased and injured a person who was just standing by there and,
"who died, in reference to him the accused had no right of private defence.288. Along",
with the above factors one has also to remember the following limitations on the right,
of private defence of person or property:,
"(i) that if there is sufficient time for recourse to public authorities, the right are not",
available;,
(ii) that more harm than that is necessary should not be caused;,
(iii) that there must be a reasonable apprehension of death or grievous hurt or hurt,
to the person or damage to the property concerned.289. Where on account of,
"some incident, the accused was confronted by three persons; it was held that",
the superiority in numbers in itself could in all probability have been construed,
"by the accused as an imminent danger to himself thus, giving him the signal to",
act in exercise of the right of private defence.290.,
The need to act must not have been created by the conduct of the accused in the,
immediate context of the incident which was likely or intended to give rise to that,
need.291. The Supreme Court reiterated the various principles governing the law of,
private defence and observed that it was essentially a defensive right and did not,
"include the right to launch an offensive attack, particularly when the need for defence",
no longer existed.292. A right of private defence given by the Penal Code is essentially,
one of defence or self-protection and not a right of reprisal or punishment. It is subject,
to the restrictions indicated in section 99 which are as important as the right itself.293.,
[s 96.4] CASES.—Plea of Private Defence rejected.—,
"After inflicting injuries on person of first deceased, accused persons ran towards",
"second deceased, who was standing ten steps away from place of incident. Further",
"after seeing incident relating to death of first deceased, second deceased started",
running towards Durga-ki-Dhani and was chased by accused persons and they inflicted,
lathi blows on his person. Accused had no right to invoke right of self-defence by,
chasing second deceased and to cause fatal injuries upon him.294. Where the accused,
were in fact the aggressors and being members of the aggressors party none of the,
accused can claim right of self-defence.295. Merely because there was a quarrel and,
"some of the accused person sustained injuries, that does not confer a right of private",
defence extending to the extent of causing death. It has to be established that the,
accused person were under such grave apprehension about the safety of their life and,
property that retaliation to the extent done was absolutely necessary. Right of private,
defence has been rightly discarded.296.,
"The defence claimed that the place of occurrence was the house of the accused and,",
"therefore, they had acted in self-defence but that was not proved through any leading",
"evidence despite the examination of the accused under section 313 of the Cr PC, 1973,",
it was held that the right of self-defence was not available to them.297.,
[s 96.5] Social nature of defence.—,
The right of private defence is not restricted to the particular person who is under,
attack. It extends to the society as a whole. It is available to any member of the society,
who rises to the occasion. But it is wholly a social obligation without any legal,
overtones.298.,
[s 96.6] Material that accused may rely on.—,
An accused entitled to rely for constructing his private defence on the material on,
"record brought by the prosecution.299. Without formally taking a plea of self-defence,",
the accused has a right to probabilise such defence on the basis of the prosecution,
"evidence and if he succeeds in his effort, the Court can give him such a benefit.300.",
"2. Duty to retreat, if any.—It is now well settled that the rule of retreat which Common",
"Law Courts espoused is not relevant under the IPC, 1860. If a man's property is in",
imminent danger of being impaired or attacked he has the right to resort to such,
measures as would be reasonably necessary to thwart the attempt to protect his,
property.301. Under the common law the doctrine of necessity permitted one to defend,
one's person or property or the person or property of others against an unjustified,
"attack by the use of reasonable force. In determining what was reasonable force, which",
"in the Indian context means minimum force under section 99, IPC, 1860, the common",
law Courts always insisted if the accused could prevent the commission of crime,
against him by retreating. On this rule of retreat one would like to ask: if a person is,
"attacked by an armed burglar in his own room, he is expected to run away leaving the",
"burglar to act as he liked.302. In Jaidev's case303. Gajendragadkar, J, as he then was,",
specifically held that in India there is no rule which expects a man first to run away or at,
least try to do so before he can exercise his right of private defence. Rather he has,
every right to stand his own ground and defend himself if there is no time to have,
recourse to official help. Law does not expect a citizen to be a rank coward or leave his,
own house at the mercy of the burglar.304. In spite of this clear exposition of the law in,
"Jaidev's case Sarkaria, J, held in Yogendra Morarji's case305. that one must first try to",
avoid the attack by retreating otherwise one would not be entitled to get the benefit of,
private defence. It appears that Jaidev's case was not canvassed before the learned,
judges who decided the latter case. It is submitted with utmost respect that the former,
"view as held in Jaidev's case, appears to be more reasonable and has to be preferred.",
3. No Private defence in a free fight.—Where both sides can be convicted for their,
"individual acts, normally no right of private defence is available to either party and they",
will be guilty of their respective acts.306. Where two parties come armed with,
determination to measure their strength and to settle a dispute by force and in the,
"ensuing fight both sides receive injuries, no question of right of private defence arises.",
In such a case of free fight both parties are aggressors and none of them can claim,
right of private defence.307. In a free fight between two groups resulting in the death of,
"one and injuries to several others both grievous and simple, all the accused",
participated in the fight. The plea of one of the accused that he joined the fight later,
and acted in defence of other co-accused was held to be not tenable. The Court,
observed that his case could not be separated by giving him right of private defence,
under the benefit of doubt.308. In a sudden fight between two groups in heat of passion,
death of a man was caused and several others on both the sides were injured. The,
deceased opened the assault first. It was held that in such fights the question that,
which party opened attack first is immaterial. Plea of right of self-defence was not,
allowed to the accused.309. Where two groups forming an unlawful assembly over the,
"possession of land in dispute which was in peaceful possession of neither group,",
"indulged in free fight resulting in the death of two persons of a group, it was held that",
right of private defence was not available to either group.310.,
The right to voluntary causing of death or any other harm is available against the,
assailant and not against any other person.311.,
4. Injury to accused.—If makes out private defence.—Number of injuries on the,
accused by itself may not be sufficient to establish the right of private defence.312. The,
number of injuries is not always considered to be a safe criterion for determining who,
the aggressor was. It can also not be laid down as an unqualified proposition of law,
"that whenever injuries are on the body of the accused person, the presumption must",
necessarily be raised that the accused person had caused injuries in exercise of the,
right of private defence. The defence has to further establish that the injury so caused,
on the accused probabilise the version of the right of private defence.313. Non-,
explanation of injuries on the person of the accused is a factor of great importance and,
this fact may induce the Court in judging the veracity of prosecution witnesses with,
considerable care.314. The right of private defence cannot justifiably be raised by,
showing that one of the accused had suffered some minor injuries and the prosecution,
had not explained the same.315. In a given case it may strengthen the plea of private,
defence set up by the accused or may create genuine doubt regarding the prosecution,
case. At the same time it cannot be laid down as an invariable proposition of law that,
as soon as it is found that the accused had received injuries in the same transaction in,
"which the complainant party was assaulted, the plea of private defence would stand",
prima facie established and burden would shift on to the prosecution to prove that,
those injuries were caused to the accused in self-defence by the complainant party.316.,
"When the accused turned back from the house of the deceased whom they had visited,",
the deceased followed them along with his brother and mother and tried to attack them,
from behind. The accused turned back and shot at him causing death. It was held that,
the conduct of the accused was justifiable. His acquittal was not interfered with.317.,
Where the deceased along with his father was putting up a fence which was protested,
"by the accused resulting in an altercation, and the accused suddenly dealt a lathi blow",
"on the head of the deceased which proved fatal, it was held that since the accused",
"received injuries as a result of assault by the deceased and his father, the accused had",
justifiably exercised his right of private defence.318. In a case of murder some of the,
serious injuries found on the person of the accused were not explained and some of,
"the prosecution witnesses also were injured, it was held that it could be said that the",
accused party had acted in exercise of right of private defence and confirmation of the,
acquittal of all the accused but one by the High Court was not proper.319. Where,
serious injuries inflicted on the person of the accused could not be explained by the,
"prosecution, the accused could be said to be entitled to the right of private defence.",
Their conviction under section 300 was held to be not proper.320.,
"In State of UP v Mukunde,321. the Supreme Court observed that merely on the ground",
"that the prosecution witnesses have not explained the injuries on the accused, their",
evidence ought not to be rejected if the Court finds it probable that the accused might,
have acted in exercise of the right of private defence. The Supreme Court also,
observed in a subsequent case322. that:,
it cannot be held as a matter of law or invariably a rule that whenever an accused sustained,
an injury in the same occurrence the prosecution is obliged to explain the injury and on the,
"failure of the prosecution to do so, the prosecution case should be disbelieved. Before non-",
explanation of injuries on the person of the accused by the prosecution witnesses may,
"affect the prosecution case, the court has to be satisfied of the existence of two conditions:",
(1) that the injuries on the person of the accused were of a serious nature and (ii) such,
injuries must have been received at the time of the occurrence in question. Non-explanation,
of injuries assumes greater significance when the evidence consists of interested or,
partisan witnesses or where the defence gives a version which completes in probability with,
that of the prosecution.323.,
These rulings were followed in Kashi Ram v State of MP324. The accused persons were,
"alleged to have assaulted the prosecution party, but the prosecution witnesses failed to",
explain serious injuries including injuries on the vital parts of the body sustained by one,
of the accused in the same incident. The Court said that this could not be a ground for,
discarding the prosecution story and for acquittal of all accused persons.,
Where the accused had some trivial injuries on non-vital parts but the victim had,
suffered as many as 19 injuries including some on vital parts which resulted in his,
"death, it could not be believed that the accused had acted in self-defence especially",
when he was arrested five or six days after the incident but in the intervening time did,
not care to get himself medically examined. A plea of private defence cannot be based,
on surmises and speculation.325.,
The Supreme Court has also observed that merely because there was a quarrel and the,
"accused persons also sustained injuries, it did not confer a right of private defence to",
"the extent of causing death. Though such right cannot be weighed in golden scales, it",
has at least to be shown that the accused persons were under such grave,
apprehension about the safety of their life and property and that the retaliation to the,
extent actually done was absolutely necessary.326.,
The number of injuries is not always a safe criterion for determining as to who was the,
aggressor. It cannot be stated as a universal rule that whenever injuries are on the body,
"of the accused person, a presumption must necessarily be raised that the accused",
persons had caused injuries in the exercise of the right of private defence. The defence,
has further to show that injuries on the accused probabilise the version of the right of,
"private defence.327. In moments of excitement and disturbed mental equilibrium,",
parties cannot be expected to preserve composure and use exactly only so much in,
retaliation as is commensurate with the apprehended danger. Due weightage has to be,
given to what happened at the spur of the moment at the spot. Things have to be,
"judged pragmatically keeping in view, the normal human reactions and behaviour, self-",
preservation being the paramount consideration. Microscopic and pedantic scrutiny,
has to be avoided.328.,
[s 96.7] Retaliation.—,
The Supreme Court observed:,
From a plain reading of the sections (Ss. 96–106) it is manifest that such a right can be,
"exercised only to repel unlawful aggression and not to retaliate. To put it differently, the right",
"is one of defence and not of requital or reprisal. Such being the nature of the right, the High",
Court could not have exonerated the accused persons of the charges levelled against them,
by bestowing on them the right to retaliate and attack the complainant party.329.,
[s 96.8] Where private defence not pleaded.—,
"If circumstances show that the right of private defence was legitimately exercised, it is",
"open to the Court to consider such a plea, even if accused had not taken it. A right of",
private defence need not specifically be taken and in the event the Court on the basis of,
"the materials placed on record is in a position to come to such a conclusion, the Court",
may act thereupon.330. Where the right of private defence was not pleaded by the,
"accused, but it appeared that the complainant was the aggressor, the Bombay High",
Court held that the benefit of such defence could still be given to the accused.331. Fact,
that accused pleaded alibi-itself will not preclude the Court from giving him also the,
right of private defence if on proper appraisal of evidence and other material on,
"records, Court finds it to be available to him.332. The right of private defence cannot be",
denied merely because the accused adopted a different line of defence particularly,
when the evidence adduced by the prosecution would indicate that they were put under,
a situation where they could reasonably have apprehended grievous hurt even to one of,
them.333. The Supreme Court endorsed this principle by saying that it is not necessary,
that the plea of private defence must always be taken by the accused person. Even if,
"the accused does not do so, the Court can consider it if the circumstances show that",
the right of private defence was legitimately exercised.334.,
The accused has not to plead self-defence by examining some witnesses or by making,
any statement. But there has to be some material available on record to indicate that,
the accused had attacked the deceased in exercise of the right of self-defence.335.,
[s 96.9] In appeal.—,
It is permissible for accused to raise that plea at the stage of appeal as the settled,
"legal position is that even if the accused does not plead self-defence, it is open to",
consider such a plea if the same arises from the material on record.336.,
"1. Shankar Narayan Bhadolkar v State of Maharashtra, AIR 2004 SC 1966 [LNIND 2004 SC 1370] :",
2004 Cr LJ 1778 : (2005) 9 SCC 71 [LNIND 2004 SC 1370] .,
"2. The Indian Evidence Act, I of 1872, section 105.",
"3. Musammat Anandi, (1923) 45 All 329 ; Babulal, 1960 Cr LJ 437 (All).",
"4. A K Chaudhary v State of Gujarat, 2006 Cr LJ 726 (Guj).",
"5. A K Chaudhary v State of Gujarat, 2006 Cr LJ 726 (Guj).",
"269. Darshan Singh v. State of Punjab, (2010) 2 SCC 333 [LNIND 2010 SC 70] : (2010) 1 SCR 642",
[LNIND 2010 SC 70] : AIR 2010 SC 1212 [LNIND 2010 SC 70] : 2010 Cr LJ 1393 : (2010) 2,
SCC(Cr) 1037.,
270. Dharam v State of Haryana. JT 2007 (1) SC 299 [LNIND 2006 SC 1108] : AIR 2007 SC 397,
[LNIND 2006 SC 1108] : 2006 AIR SCW 6298.,
"271. Darshan Singh v State of Punjab, (2010) 2 SCC 333 : (2010) 1 SCR 642 [LNIND 2010 SC 70]",
: AIR 2010 SC 1212 [LNIND 2010 SC 70] : 2010 Cr LJ 1393 : (2010) 2 SCC(Cr) 1037.,
"272. V Subramani v State of TN, (2005) 10 SCC 358 [LNIND 2005 SC 224] : AIR 2005 SC 1983",
[LNIND 2005 SC 224] .,
"273. Babulal Bhagwan Khandare v State of Maharashtra, AIR 2005 SC 1460 [LNIND 2004 SC",
1203] : (2005) 10 SCC 404 [LNIND 2004 SC 1203] .,
"274. Mano Dutt v State of UP, JT 2012 (2) SC 573 : 2012 (3) Scale 219 [LNIND 2012 SC 160] :",
(2012) 4 SCC 79 [LNIND 2012 SC 160] .,
"275. V Subramani v State of TN, (2005) 10 SCC 358 [LNIND 2005 SC 224] : AIR 2005 SC 1983",
[LNIND 2005 SC 224] .,
276. Dharam v State of Haryana. JT 2007 (1) SC 299 [LNIND 2006 SC 1108] : AIR 2007 SC 397,
[LNIND 2006 SC 1108] : 2006 AIR SCW 6298.,
"277. Buta Singh v The State of Punjab, 1991 (2) SCC 612 [LNIND 1991 SC 177] : 1991 SCC (Cr)",
"494 : AIR 1991 SC 1316 [LNIND 1991 SC 177] : 1991 Cr LJ 1464 ; Satya Narain Yadav v Gajanand,",
(2008) 16 SCC 609 [LNIND 2008 SC 2782] : (2008) 10 Scale 728 [LNIND 2008 SC 2782] .,
"278. Babulal Bhagwan Khandare v State of Maharashtra, AIR 2005 SC 1460 [LNIND 2004 SC",
1203] : (2005) 10 SCC 404 [LNIND 2004 SC 1203] .,
"279. Dattu Genu, 1974 Cr LJ 446 : AIR 1974 SC 387 [LNIND 1973 SC 357] .",
"280. Munney Khan v State, AIR 1971 SC 1491 [LNIND 1970 SC 338] : (1970) 2 SCC 480 [LNIND",
"1970 SC 338] . On the same point, Narasimha Raju v State, 1971 Cr LJ 1066 : (1970) 3 SCC 481 :",
"AIR 1971 SC 1232 ; Mohammad Hameed v State, AIR 1980 SC 108 : 1980 Cr LJ 192 : (1979) 4",
"SCC 708 . An illustrative situation is Jagdish Chandra v State of Rajasthan, 1987 Cr LJ 649 Raj, in",
"consequence of enimical terms and intemperate nature, one fired at the other, the other",
"returning the fire resulting in death. In the prosecution of the other, this defence was allowed.",
281. Plea of self-defence was rejected where the evidence showed that the deceased was,
"unarmed and was not the aggressor. Kuduvakuzinyil Sudhakaran v State, (1995) 1 Cr LJ 721",
(Ker). Defence that a stab wound causing death was inflicted on the chest of the deceased with,
a pen-knife was found to be apparently false because such instrument would not have caused,
"that kind of wound, plea of self defence rejected, Sellamuthu v State of TN, (1995) 2 Cr LJ 2143",
"(Mad). Hakim Singh v State of MP, (1994) 2 Cr LJ 2463 (MP), the deceased was unarmed when",
"fired at, he caused injury only after receiving the gun-shot wound, right of private defence in",
"shooting at him not available. Hukam Chand v State of Haryana, AIR 2002 SC 3671 [LNIND 2002",
"SC 652] , theory of self-defence, not supported by facts. Jham Singh v State of MP, 2003 Cr LJ",
"2847 , no injury found on the person of the accused, nor any report made. The plea of private",
defence was rejected.,
"282. Darshan Singh v State of Punjab, (2010) 2 SCC 333 : (2010) 1 SCR 642 [LNIND 2010 SC 70]",
: AIR 2010 SC 1212 [LNIND 2010 SC 70] : 2010 Cr LJ 1393 : (2010) 2 SCC(Cr) 1037.,
"283. Kashi Ram v State of Rajasthan, (2008) 3 SCC 55 [LNIND 2008 SC 187] : (2008) 1 SCC (Cr)",
"608 : AIR 2008 SC 1172 [LNIND 2008 SC 187] . Narain Singh v State of Haryana, (2008) 11 SCC",
"540 [LNIND 2008 SC 864] : AIR 2008 SC 2006 [LNIND 2008 SC 864] : 2008 Cr LJ 2613 ,",
"principles imbibed in sections 96-106 restated. Manubhai Atabhai v State of Gujarat, (2007) 10",
"SCC 358 [LNIND 2007 SC 822] : AIR 2007 SC 2437 [LNIND 2007 SC 822] , once the right of",
"private defence is established, conviction is not permissible.",
"284. Sikandar Singh v State of Bihar, (2010) 7 SCC 477 [LNIND 2010 SC 603] : (2010) 8 SCR 373",
: AIR 2010 SC 44023 : 2010 Cr LJ 3854 : (2010) 3 SCC (Cr) 417.,
"285. Bhanwar Singh v State of MP, (2008) 16 SCC 657 [LNIND 2008 SC 1246] : AIR 2009 SC 768",
"[LNIND 2008 SC 1246] : (2008) 67 AIC 133 . Dharam v State of Haryana, (2007) 15 SCC 241",
"[LNIND 2006 SC 1108] , nature and scope of the right explained. Haren Das v State of Assam,",
2012 Cr LJ 1467 (Gau).,
"286. Thankachan v State of Kerala, (2008) 17 SCC 760 .",
"287. Biran Singh, 1975 Cr LJ 44 : AIR 1975 SC 87 .",
"288. Krishanlal v State, 1988 Cr LJ 990 (J&K).",
"289. Puran Singh, 1975 Cr LJ 1479 : AIR 1975 SC 1674 [LNIND 1975 SC 174] .",
"290. Shivappa Laxman Savadi v State, 1992 Cr LJ 2845 (Kant). Hari Singh v State of Rajasthan,",
"AIR 1997 SC 1505 [LNIND 1996 SC 1592] : 1997 Cr LJ 733 ; State of Haryana v Mewa Singh, AIR",
"1997 SC 1407 : 1997 Cr LJ 1906 ; Ram Dhani v State, 1997 Cr LJ 2286 (All); Rizwan v State of",
"Chhatisgarh, AIR 2003 SC 976 [LNIND 2003 SC 72] : 2003 Cr LJ 1226 : (2003) 2 SCC 661 [LNIND",
2003 SC 72] .,
"291. Triloki Nath v State of UP, AIR 2006 SC 321 [LNIND 2005 SC 867] : (2005) 13 SCC 323",
[LNIND 2005 SC 867] .,
"292. Shajahan v State of Kerala, (2007) 12 SCC 96 [LNIND 2007 SC 243] : (2008) 2 SCC (Cr) 234",
": 2007 Cr LJ 229 , extreme enmity between parties result in attacks.",
"293. Bathu Singh v State of MP, AIR 2004 SC 4279 [LNIND 2004 SC 835] : (2004) 7 SCC 206 .",
"294. Gopal vState of Rajasthan, 2013 Cr LJ 1297 , JT 2013 (1) SC 639 [LNIND 2013 SC 37] ,",
"2013 (1) MLJ (Crl) 617 [LNIND 2013 SC 37] , 2013 (1) Scale 445 [LNIND 2013 SC 37] , (2013) 2",
"SCC 188 [LNIND 2013 SC 37] ; Mukesh Rathore v State of Chhattisgarh, 2010 Cr LJ 1289 (Chh);",
"State of Rajasthan v Brijlal, 2010 Cr LJ 1000 (Raj).",
295. Sikandar Singh v State of Bihar (2010) 7 SCC 477 [LNIND 2010 SC 603] : AIR 2010 SC,
44023 : (2010) 3 SCC(Cr) 417.,
"296. Raj Pal v State of Haryana, (2006) 9 SCC 678 [LNIND 2006 SC 282] : (2006) 3 SCC(Cr) 361.",
"297. Raj Singh v State of Haryana, 2015 Cr LJ 2803 : (2015) 6 SCC 268 [LNIND 2015 SC 283] :",
2015 (5) Scale 492 [LNIND 2015 SC 283] .,
"298. Kashi Ram v State of Rajasthan, (2008) 3 SCC 55 [LNIND 2008 SC 187] : (2008) 1 SCC (Cr)",
608 : AIR 2008 SC 1172 [LNIND 2008 SC 187] .,
"299. Ravishwar Manjhi v State of Jharkhand, (2008) 16 SCC 261 : AIR 2009 SC 1262 [LNIND",
2008 SC 2423] .,
"300. Janardan Singh v State of Bihar, (2009) 16 SCC 269 : (2010) 3 SCC (Cr) 253.",
"301. Mahabir Choudhary v State of Bihar, 1996 AIR(SC) 1998, 1996 Cr LJ 2860 : 1996 (5) SCC",
107 [LNIND 1996 SC 891] .,
"302. Glanville Williams : Text book on Criminal Law, 1979 Edn, p 460.",
"303. Jaidev, 1963 (1) Cr LJ 495 : AIR 1963 SC 612 [LNIND 1962 SC 249] .",
"304. Jaidev, Supra; see also Mohd Khan, 1972 Cr LJ 661 : (1971) 3 SCC 683 [LNIND 1971 SC",
"540] ; Puran Singh, 1975 Cr LJ 1479 : AIR 1975 SC 1674 [LNIND 1975 SC 174] .",
"305. Yogendra Morarji, 1980 Cr LJ 459 : AIR 1980 SC 660 . This case is against all previous",
authorities and is wrongly decided (MH Editor).,
"306. Dr. Mohammad Khalil Chisti v State of Rajasthan, 2013 Cr LJ 637 (SC) : 2013 (1) MLJ (Crl)",
"198 [LNIND 2012 SC 801] : (2013) 2 SCC 541 [LNIND 2012 SC 801] ; Gopal v State of Rajasthan,",
(2013) 2 SCC 188 [LNIND 2013 SC 37] : 2013 Cr LJ 1297 .,
"307. Onkarnath Singh v State of UP, 1974 Cr LJ 1015 : AIR 1974 SC 1550 [LNIND 1974 SC 154] ;",
"Vishvas v State, 1978 Cr LJ 484 : AIR 1978 SC 414 [LNIND 1978 SC 17] ; Sikhar Behera, 1982 Cr",
"LJ 1167 (Orissa); Munir Ahmad v State of Rajasthan, AIR 1989 SC 705 : 1989 Cr LJ 845 : (1989)",
26 ACC 115 : 1989 Supp SCC 377 ; reiterated by the Supreme Court in Paras Nath Singh v State,
"of Bihar, and Hari Krishna Singh v State of Bihar, AIR 1988 SC 863 [LNIND 1988 SC 139] : (1988) 2",
"SCC 95 [LNIND 1988 SC 139] : 1988 Cr LJ 925 . Gajanand v State, 1954 Cr LJ 1746 , AIR 1954 SC",
"695 , followed, Abdul Hamid v State of UP, 1991 Cr LJ 431 . See also State of Assam v Upendra",
"Das, 1991 Cr LJ 2930 Gau, relying upon Lakshmisingh v State of Bihar, AIR 1976 SC 2263 : 1976",
"Cr LJ 1736 . For other cases of free fight and, therefore, acquittal. See Ram Nath v State, 1991 Cr",
"LJ 1825 All; Sonpal v State of UP, 1991 Cr LJ 1597 All, prosecution not explaining how the event",
"sparked off and how the accused suffered injuries. Nityanand Pasayat v State, 1989 Cr LJ 1547",
"(Ori), quarrel between two groups. Amir Ali v State of Assam, 1989 Cr LJ 1512 , a case of mutual",
fight over possession of land in which both sides were injured. The Court added that if a group,
"of 5 assembles in private defence, they are not an unlawful assembly; but if they persist in use",
"of force even after their right is over, they become an unlawful assembly. Chandrasekharan v",
"State of Kerala, 1987 Cr LJ 1715 (Ker); State of Rajasthan v. Sughad Singh, AIR 1994 SC 1593 :",
1994 Cr LJ 2188 .,
"308. Amrik Singh v State of Punjab, 1993 Cr LJ 2857 : 1993 AIR SCW 2482 : 1994 Supp (1) SCC",
320.,
"309. Rohtash v State of Haryana, 1993 Cr LJ 3303 (P&H).",
"310. Sikhar Behera v State of Orissa, 1993 Cr LJ 3664 : 1993 AIR SCW 3162 : 1994 Supp (1) SCC",
"493. Amerika Rai v State of Bihar, AIR 2011 SC 1379 [LNIND 2011 SC 220] : (2011) 3 SCR 176",
[LNIND 2011 SC 220] : (2011) 2 SCC(Cr) 429 : (2011) 4 SCC 677 [LNIND 2011 SC 220] Ram,
"Kumar v State of Haryana, AIR 1998 SC 1437 [LNIND 1998 SC 231] : 1998 Cr LJ 2049 ; Pammi v",
"Govt. of MP, AIR 1998 SC 1185 [LNIND 1998 SC 200] : 1998 Cr LJ 1617 ; Periasami v State of TN,",
1997 Cr LJ 219 : (1996) 6 SCC 457 [LNIND 1996 SC 1552] .,
"311. Mohammad Iqbal v State of MP, 2012 Cr LJ 337 (Chh).",
"312. Ranbir Singh v State of Haryana, 2009 Cr LJ 3051 (SC) : (2009) 16 SCC 193 [LNIND 2009 SC",
1053] .,
313. Sikandar Singh v State of Bihar (2010) 7 SCC 477 [LNIND 2010 SC 603] : (2010) 8 SCR 373 :,
"AIR 2010 SC 44023 : 2010 Cr LJ 3854 : (2010) 3 SCC(Cr) 417; Dashrath Singh v State of UP,",
"(2004) 7 SCC 408 [LNIND 2004 SC 798] ; Bishna v State of WB, AIR 2006 SC 302 [LNIND 2005 SC",
"873] : (2005) 12 SCC 657 [LNIND 2005 SC 873] , Shriram v State of MP, (2004) 9 SCC 292 [LNIND",
2003 SC 1026] .,
"314. Lacchiram v State of MP, 1990 Cr LJ 2229 MP, unexplained injuries on the person of the",
"accused. But such injuries do not by themselves afford a defence. Govardhan v State, 1987 Cr LJ",
"541 (Raj). Ram Kumar v State of Haryana, 1994 Cr LJ 1450 P&H, dispute over water course,",
"accused entered field to divert water, caused innumerable injuries to those who objected and",
"also himself received a few injuries, he was held to be an aggressor having no right of private",
"defence; Velummei v State, 1994 Cr LJ 1738 (Ker), a person entering the house of another for",
"crime is an aggressor, he has no right of private defence. Man Bharan Singh v State of MP, 1996",
"Cr LJ 2707 (MP), every minor injury on the person of the accused does not require explanation.",
"315. State of Punjab v Gurlabh Singh, (2009) 13 SCC 556 [LNIND 2009 SC 1262] : AIR 2009 SC",
"2469 [LNIND 2009 SC 1262] ; Radhe v State of Chhattisgarh, (2008) 11 SCC 785 [LNIND 2008 SC",
"1333] : AIR 2008 SC 2878 [LNIND 2008 SC 1333] : 2008 Cr LJ 3520 , the mere fact of a quarrel",
and the accused sustaining injuries does not in itself create the right of self-defence to the,
"extent of causing death, there has to be an attack creating apprehension of fatal injury. Such",
was not the case here.,
"316. Onkarnath, supra. Injuries to the accused not caused during the course of the same",
"incident, no right of private defence, Munna v State of UP, AIR 1992 SC 278 : 1993 Cr LJ 45 : 1993",
"Supp (2) SCC 757 ; State of Kerala v Mavila Thamban Nambiar, 1993 Cr LJ 1817 (Ker), the",
"accused fell off during the course of struggle and injured himself, those injuries could not give",
him the right of killing in private defence.,
"317. State of Punjab v Sohan Singh, AIR 1992 SC 1247 : 1992 Cr LJ 2514 : 1993 Supp (1) SCC",
312 .,
"318. Sridhar Das v State of Orissa, 1992 Cr LJ 2907 (Ori).",
"319. Makwana Takhat Singh Ratan Singh v State of Gujarat, AIR 1992 SC 1989 : 1992 Cr LJ 3596",
". No explanation of injuries on the person of the accused made, no difference to the acceptance",
"of their plea of self-defence, Hardeep Singh v State, 1996 Cr LJ 3091 (Raj).",
"320. Arjun v State of MP, 1995 Cr LJ 3797 (MP).",
"321. State of UP v Mukunde, (1994) 2 SCC 191 [LNIND 1994 SC 71] : 1994 SCC (Cr) 473. Also to",
"the same effect Kasam Abdulla v State of Maharashtra, 1998 Cr LJ 1422 : AIR 1998 SC 1013",
"[LNIND 1998 SC 157] , injuries on the person of a accused explained.",
"322. Thakhaji Hiraji v Thakore Kuber Singh Chaman Singh, (2001) 6 SCC 145 [LNIND 2001 SC",
1150] : AIR 2001 SC 2326 : 2001 AIR SCW 2077.,
"323. The Court also noted the decision in Chandu v State of Maharashtra, (2001) 4 Scale 590",
"[LNIND 2009 NGP 319] : (2001) 5 Supreme 672; Dev Raj v State of HP, AIR 1994 SC 523 : 1993",
"AIR SCW 3966 : (1994) Supp 2 SCC 552, such injuries cannot be lightly ignored; Tara Chand v",
"State of Haryana, AIR 1971 SC 1891 : 1971 Cr LJ 1411, the circumstance can also be taken into",
account in the mitigation of sentence.,
"324. Kashi Ram v State of MP, AIR 2001 SC 2902 [LNIND 2001 SC 2369] . See also State of",
"Rajasthan v Pura, 2000 Cr LJ 2615 (Raj); Dharminder v State of HP, AIR 2002 SC 3097 [LNIND",
"2002 SC 537] ; Jesu Asir Singh v State, AIR (2007) SC 3015 [LNIND 2007 SC 977] : (2007) Cr LJ",
4310 : (2007) 12 SCC 19 [LNIND 2007 SC 977] : (2008) 2 SCC (Cr) 192.,
"325. Poosaram, 1984 Cr LJ 1848 (Raj); See also State of Gujarat v Bai Fatima, 1975 Cr LJ 1079 :",
"AIR SC 1478; Rizwan v State of Chhatisgarh, AIR 2003 SC 976 [LNIND 2003 SC 72] , non-",
explanation of injuries on the accused persons was not taken by itself to give them the benefit,
of the right of private defence. The Court considered the factors to be taken into account for,
examining whether the right of private defence must have existed.,
"326. Radhe v State of Chhatisgarh, (2008) 11 SCC 785 [LNIND 2008 SC 1333] : AIR 2008 SC",
2878 [LNIND 2008 SC 1333] .,
"327. Laxman Singh v Poonam Singh, (2004) 10 SCC 94 [LNIND 2003 SC 767] : (2004) 1 MPLJ 93",
": (2004) 1 Mah LJ 317 . James Martin v State of Kerala, (2004) 2 SCC 203 [LNIND 2003 SC 1097]",
: (2004) 1 KLT 513 [LNIND 2003 SC 1097] : (2004) 2 MPLJ 231 : 2004 Mah LJ 358 . Shriram v,
"State of MP, (2004) 9 SCC 292 [LNIND 2003 SC 1026] : AIR 2004 SC 491 [LNIND 2003 SC 1026] :",
2004 Cr LJ 610 .,
"328. James Martin v State of Kerala, (2004) 2 SCC 203 [LNIND 2003 SC 1097] .",
"329. Rajesh Kumar v Dharmavir, AIR 1997 SC 3769 [LNIND 1997 SC 445]: 1997 Cr LJ 2242.",
330. Ranveer Singh v State of MP (2009) 3 SCC 384 [LNIND 2009 SC 123] : AIR 2009 SC 1658,
"[LNIND 2009 SC 123] ; Bishna Alias Bhiswadeb Mahato v State of WB, (2005) 12 SCC 657 [LNIND",
"2005 SC 873] Also see Ravishwar Manjhi v State of Jharkhand, AIR 2009 SC 1262 [LNIND 2008",
SC 2423] : (2008) 16 SCC 561 [LNIND 2008 SC 2423] .,
"331. State v Tanaji Dagadu Chawan, 1998 Cr LJ 4515 (Bom).",
"332. State of Rajasthan v Shiv Singh Haren Das v State of Assam, 2011 Cr LJ 580 (Raj).",
"333. Moti Singh v State of Maharashtra, (2002) 9 SCC 494 .",
"334. V Subramani v State of TN, 2005 Cr LJ 1727 SC : AIR 2005 SC 1983 [LNIND 2005 SC 224] :",
(2005) 10 SCC 358 [LNIND 2005 SC 224] .,
"335. Nagaraj v State, 2006 Cr LJ 3724 (Mad—DB).",
"336. Mehi Lal v State of UP, 2011 Cr LJ 1440 (All).",
THE INDIAN PENAL CODE,
CHAPTER IV GENERAL EXCEPTIONS,
THIS chapter has been framed in order to obviate the necessity of repeating in every,
penal clause a considerable number of limitations.,
The word 'offence' in this chapter denotes a thing punishable under the Code or under,
any special or local law when it satisfied the conditions laid down in section 40 of the,
Code.,
"The ""general exceptions"" contained in sections 76–106 make an offence a non-offence.",
"The ""general exceptions"" enacted by Indian Penal Code, 1860 (IPC, 1860) are of",
"universal application and for the sake of brevity of expression, instead of repeating in",
"every section that the definition is to be taken subject to the exceptions, the Legislature",
"by section 6 IPC, 1860 enacted that all the definitions must be regarded as subject to",
"the general exceptions. Therefore, general exceptions are part of definition of every",
"offence contained in IPC, 1860, but the burden to prove their existence lied on the",
accused.1.,
The following acts are exempted under the Code from criminal liability:—,
1. Act of a person bound by law to do a certain thing (section 76).,
2. Act of a Judge acting judicially (section 77).,
3. Act done pursuant to an order or a judgment of a Court (section 78).,
"4. Act of a person justified, or believing himself justified, by law (section 79).",
5. Act caused by accident (section 80).,
6. Act likely to cause harm done without criminal intent to prevent other harm,
(section 81).,
7. Act of a child under seven years (section 82).,
"8. Act of a child above seven and under 12 years, but of immature understanding",
(section 83).,
9. Act of a person of unsound mind (section 84).,
10. Act of an intoxicated person (section 85) and partially exempted (section 86).,
11. Act not known to be likely to cause death or grievous hurt done by consent of,
the sufferer (section 87).,
12. Act not intended to cause death done by consent of sufferer (section 88).,
13. Act done in good faith for the benefit of a child or an insane person by or by the,
consent of guardian (section 89).,
14. Act done in good faith for the benefit of a person without consent (section 92).,
15. Communication made in good faith to a person for his benefit (section 93).,
16. Act done under threat of death (section 94).,
17. Act causing slight harm (section 95).,
18. Act done in private defence (sections 96–106).,
"The above exceptions, strictly speaking, come within the following seven categories:—",
"1. Judicial acts (section. 77, 78).",
"2. Mistake of fact (sections 76, 79).",
3. Accident (section 80).,
"4. Absence of criminal intent (sections 81–86, 92–94).",
"5. Consent (sections 87, 90).",
6. Trifling acts (section 95).,
7. Private defence (sections 96–106).,
"Onus of proving exception lies on accused.—When a person is accused of any offence,",
the burden of proving the existence of circumstances bringing the case within any of,
"the general exceptions in the Penal Code, or within any special exception or proviso",
"contained in any other part of the same Code, or in any law defining the offence, is",
"upon him, and the Court shall presume the absence of such circumstances.2.",
Although the law lays down that the onus of proving circumstances which give the,
"benefit of a general exception to an accused person lies on him, and in the absence of",
"evidence the presumption is against the accused, this does not mean that the accused",
"must lead evidence. If it is apparent from the evidence on the record, whether produced",
"by the prosecution or by the defence, that a general exception would apply, then the",
presumption is removed and it is open to the Court to consider whether the evidence,
proves to its satisfaction that the accused comes within the exception.3.,
Applicability of General exceptions during investigation.—In considering that whether,
"accusation made in the complaint makes out a case for commission of offence or not,",
the police while reaching the prima facie satisfaction of suspecting the commission of,
"cognizable offence, cannot ignore the general exception as provided under IPC, 1860",
"as per Chapter IV of IPC, 1860. If on the basis of the allegation made in the complaint,",
"the case is falling in general exceptions, it can be said that the action cannot be termed",
as an offence.4. Investigating officer is bound to investigate and confirm that despite,
"what is contained in the ""General Exceptions""; acts committed by accused shall",
"constitute offence under IPC, 1860. This shall be done, by virtue of section 6 of IPC,",
"1860. In the light of section 6 of IPC, 1860, definition of every offence is to be",
"understood subject to the ""General Exceptions"". Therefore, investigation shall not",
confine merely to the acts committed by a person. Depending on facts and,
"circumstances of each case, many other relevant facts also have to be investigated",
"into, in the light of the provisions contained in ""General Exceptions"". It is only then that",
an investigating officer will be able to confirm whether the act committed by a person,
"is an offence or not, as defined in IPC, 1860 subject to what is contained in ""General",
"Exceptions"". Further, the category of self-defence falling in general exception would fall",
"in a different category than the general exceptions, which are provided in the very",
chapter for exercise of the statutory duty or lawful power either under the mistake of,
law or fact or mistaken belief of law or fact.5.,
Of the Right of Private Defence,
[s 97] Right of private defence of the body and of property.,
"Every person has a right, subject to the restrictions contained in section 99, to defend",
—,
"First.—His own body, and the body of any other person, against any offence affecting",
the human body;,
"Secondly.—The property, whether movable or immovable, of himself or of any other",
"person, against any act which is an offence falling under the definition of theft,",
"robbery, mischief or criminal trespass, or which is an attempt to commit theft,",
"robbery, mischief or criminal trespass.",
COMMENT.—,
This section broadly specifies the offences against which the right of private defence,
can be exercised. Section 99 provides the limitations. These two sections combined,
together lay down the principles of the right of private defence.,
The first clause of this section provides for the defence of body against any offence,
affecting the human body. The second provides for the defence of property against an,
act which amounts to the commission of certain offences.,
There is no obligation upon a person entitled to exercise the right of private defence,
"and to defend his person or property, to retire merely because his assailant threatens",
him with violence.337.,
"Explaining the genesis of the rule, the Supreme Court has observed:338.",
"""It is important to bear in mind that self-preservation of one's life is the necessary",
"concomitant of the right of life enshrined in Art. 21 of the Constitution of India, fundamental",
"in nature, sacred, precious and inviolable. The importance and validity of the duty and right",
to self-preservation has a species in the right of self-defence in criminal law. Centuries ago,
"thinkers of this great land conceived of such right and recognised it.""",
[s 97.1] Aggressor has no right of private defence.—,
The right to defend does not include a right to launch an offensive or aggression.339.,
The right of private defence does not arise where the accused were the aggressors and,
the question of exceeding such right also does not arise.340. The Supreme Court,
"added, in this case, that the right of self-defence arises when there is unexpected",
"apprehension and one is taken unawares, or the accused happens to kill accidentally",
"while using reasonable force private defence can be used to ward off unlawful force, or",
"to prevent it, to avoid unlawful detention and to escape from such detention.341.",
When the father of the accused was trying to forcibly remove the gate of the thrashing,
"ground of the deceased which was situated on the land of the deceased, his act",
"amounted to an offence of 'mischief'. And, if the deceased while protecting his own",
"property assaulted the father of the accused with a lathi, and the accused killed him in",
"return, the accused could not claim the right of private defence of body of his",
father.342. In another case of the same kind the father of the accused was trying to pull,
out the gate of the deceased thrashing mill and on the deceased assaulting him in,
"protection, the accused struck him dead. The right of private defence was not available",
in the circumstances.343. Where the parties went away from the property over which,
"they were fighting, the death caused at that shifted place was not a justifiable exercise",
of the right of private defence.344. Where the accused succeeded in establishing their,
right to the property in dispute through the Court and then went to the field with a view,
"to ask the other party to vacate the premises, it was held that it by itself did not render",
them to be aggressors for the purpose of denying them the benefit of right of self-,
defence.345.,
Number of injuries is not always the safe criterion for determining who the aggressor,
is. The fact of injuries on the body of the accused does not by itself create the,
presumption that the accused was entitled to the right of private defence.346.,
[s 97.2] Unlawful assembly.—,
So long as an assembly of persons is acting in exercise of the right of private defence it,
"cannot be an unlawful assembly. An assembly though lawful to begin with, may in the",
course of events become unlawful. So long as the accused persons were acting in,
"exercise of right of private defence, their object was not unlawful and so there was no",
"unlawful assembly but once they exceeded the right, the assembly ceased to be lawful",
and became an unlawful assembly. There too only such of the members of the,
assembly who shared the object of doing anything in excess of the exercise of right of,
"private defence, alone would be liable to be punished for the acts committed in",
prosecution of the common object or for their individual unlawful acts.347.,
[s 97.3] Right of private defence to be pleaded.—,
"In a Supreme Court case it is stated,",
"It is well settled that even if an accused does not plead self-defence, it is open to the Court",
to consider such a plea if the same arises from materials on record.348.,
But if no plea was entered on behalf of the accused and there were also no,
"circumstances to show that the accused had probably the right of private defence,",
such a right could not be presumed on behalf of the accused on mere conjectures and,
surmises.349. A mere bald assertion without any evidence of facts and circumstances,
"does not make out a case of private defence.350. The accused can, however, make out",
his plea by mere preponderance of probabilities from materials already on record and,
need not prove it to the hilt.351. Where by preponderance of probabilities the plea of,
"private defence of the accused is plausible, benefit should be extended to the",
accused.352. Failure on the part of the prosecution to prove that the injuries on the,
"person of the accused were not caused in self-defence, makes the defence of the",
accused probable and he is entitled to its benefit because he has not to prove his,
defence beyond reasonable doubt.353. Where the accused set up the plea of self-,
"defence only during trial and not during investigation, it was held that this was not a",
ground for rejecting the plea.354. The accused on the observation of the High Court,
"that the deceased was stabbed by the appellant, not in pursuance of any pre-planned",
"attack, but being under the impression that the deceased was coming to attack him.",
The said observation cannot be read out of context to make out a case that the,
accused acted in self-defence. Such a plea is neither put forth in the statement under,
section 313 nor brought out in the cross examination of any of the prosecution,
witnesses.355. It is true that the right of private defence need not specifically be taken,
and in the event the Court on the basis of the materials on record is in a position to,
"come to such a conclusion, despite some other plea having been raised, that such a",
"case had been made out, it may act thereupon.356.",
[s 97.4] CASES.—Defence of person.—,
Under circumstances which might have induced the belief that a man was cutting the,
"throat of his wife, their son shot and killed his father. It was held that if the son had",
reasonable ground for believing and honestly believed that his act was necessary for,
"the defence of his mother, the homicide was excusable.357. Where a girl was being",
"sexually molested and her father hit the assailant resulting in consequential death, it",
was held that the father was entitled to the right of private defence irrespective of the,
fact whether the affair was with or without consent because of the girl being a,
minor.358. Where a man found his wife in compromising position with a person who,
"sprang at the husband and caused him multiple injuries, some of them grievous, the",
"husband thereafter gave a chopper blow resulting in the death of that person, it was",
held that the husband had not exceeded his right of private defence and was entitled to,
acquittal.359. Where the father of the accused was being given lathi blows by the,
"complainant party, the accused fired from the licensed gun of his father to defend his",
"father, it was held that he had acted in the exercise of the right of private defence",
whether the injuries caused to his father were simple or grievous.360. Trespassers on,
the property of another cannot get any benefit of right of private defence if they are,
attacked by the person in possession of the property.361. However no one including the,
true owner has a right to dispossess the trespasser by force if the trespasser is in,
settled possession of the land and in such a case unless he is evicted in due course of,
"law, he is entitled to defend his possession even against the rightful owner. Such",
possession of the trespasser must extend over a sufficiently long period and,
acquiesced in by the true owner.362. Though law permits even a trespasser in settled,
"possession to defend his possession but, it does not permit a person to take the law in",
his own hand to take forcible possession merely because he has obtained a favourable,
"order under section 145 Cr PC, 1973. Such a person cannot claim private defence.363.",
Settled possession means such clear and effective physical possession that under the,
"criminal law he, even if he is a trespasser, gets the right to defend his possession of the",
property against an attack even by the true owner.364. If no party is proved to be in,
"settled possession, the question of exercise of right of private defence does not",
arise.365. Where the accused were in possession of the property and had grown the,
"paddy, they were entitled to defend their possession by using reasonable force which in",
the instant case went up to causing of death as the party in possession was attacked,
and grievous blows were given to them.366. Where the prosecution party attacked the,
"accused, his brothers and others with sharp edged weapons and lathis and when they",
"tried to enter the latter's house, the accused fired at the crowd resulting in the death of",
"a man and injuries to others, it was held that the accused had acted only in the exercise",
of the right of private defence and he was entitled to complete acquittal.367. Where the,
accused was fired at to dispel his party from attempting to rescue their friend from,
illegal police detention and an informer accompanying the police who tried to prevent,
"them from snatching the police gun received fatal injuries, it was held that they were",
entitled to the right of private defence.368. Where a fatal injury was caused in,
"consequence of hot exchange of words, the right of private defence was held to be not",
available.369. The Supreme Court has suggested that the number and nature of injuries,
"sustained by the accused and the deceased in any case, may furnish good evidence to",
"consider whether the accused was acting in private defence and, if so, whether he had",
exceeded his right. In the state of the evidence on record in that case and the number,
"of injuries suffered by the accused, the Court did not accede to the contention that the",
right was not properly exercised.370.,
[s 97.5] Defence of another person.—,
The right of private defence need not necessarily be exercised for the defence of one's,
own person; it can be exercised for the defence of the person of another one.371.,
[s 97.6] Defence of property.—,
Every person in possession of land is entitled to defend his possession against anyone,
"who tries to eject him by force,372. or to steal from it;373. or to do an act which will have",
"the effect of causing injury to it, e.g., cutting of a bund.374. Even if a trespass has been",
"committed, in certain situations, right of private defence can be used to eject the",
"trespassers.375. Where the accused had no right, title, interest or possession of the",
"land in issue, right of private defence of property did not vest in him.376.",
Where the complainant party was about 300 feet away from the disputed land and it,
was further found that the accused had not shown that there was any injury on the,
"person of the accused, it was held that no right of private defence arose in favour of the",
accused. 377.,
[s 97.7] Open space.—,
Though private defence is available in respect of criminal trespass or mischief as,
"against the property owned by himself or of any other person, but criminal trespass is",
"not enumerated as one of the offences under section 103 IPC, 1860. Therefore, the",
right of private defence of property will not extend to the causing of death of the,
"person who committed such acts, if the act of trespass is in respect of an open land.",
Only a house-trespass committed under such circumstances as may reasonably cause,
apprehension that death or grievous hurt would be the consequence is enumerated as,
one of the offences under section 103.378. But in another judgment Supreme Court,
held that there is no law that right of self-defence cannot be exercised in relation to a,
dispute over an open space.379. Where the trespasser was in settled possession of the,
"field in question, and the party who claimed ownership started ploughing the field, it",
was held that the trespasser (accused) had the right of private defence of his,
"possession over property and offer resistance, but that he exceeded that right in",
causing death. His act fell under exception 2 to section 300 and punishable under,
"section 304, Part I.380. Where a goat of the accused entered the field of another and he",
"was trying to take it way, the other struck him with lathi blows and also his companion",
who came to his rescue. Only then the accused retaliated with lathi blows resulting in,
death. Supreme Court upheld the acquittal.381. The right is subject to restrictions,
"imposed by section 99, the accused party was in possession of the land, the deceased",
party wanted to enter into possession forcibly. One of the aggressors was killed and,
another grievously hurt. The accused that caused the death was held to be guilty of,
exceeding the right of private defence. The acquittal of the person who caused,
grievous hurt with a spear was held to be not proper. He was liable to be convicted,
under section 326.382. Accused having not been in settled possession had no right to,
self-defence to defend the possession of the property.383. Occurrence took place on,
the land which was in possession of deceased. Accused cannot take the plea of private,
defence.384. No right of private defence of property to a person who was not in,
possession of the property.385.,
Where the accused to a certain stage acted in defence of their property but exceeded it,
"in breaking into the room of their victim, striking him with a lathi blow and also his wife",
"and daughter who were also there in the room, the victim subsequently dying, their",
conviction was shifted from under section 302 to that under section 304 Part 1.386.,
The right of private defence of property (share in land) was held to have been exceeded,
"when the deceased's side being armed with lathis only, the accused party fired at them",
"with a gun, killing one and injuring others. The right of private defence was not available",
to them.387.,
Where the finding of the Courts below was that the accused and his companions were,
aggressors because they assaulted the victim and his children when they came out to,
"protest against cutting of their by the accused, it was held that the benefit of the right",
of private defence was not available to the accused.388.,
Defence of property may create circumstances ripening into the right of defence of,
"person. This is so because even in defending property, the attack and counter-attack is",
likely to be on person. This was the situation in a case in which the accused while,
defending land over which they had possession; they became the victim of attack on,
person with sharp cutting weapons. It became their right to repel the danger of,
grievous hurt or even death and to use for that purpose reasonably appropriate force.,
Their right extended to cause death of the aggressors if that could be the only way of,
saving themselves.389.,
[s 97.8] CASES.—Exceeding private defence.—,
The father of the accused was attacked by the deceased with a lathi and suffered a,
"simple injury on his head, whereupon the accused in order to protect his father",
administered a fatal blow on the chest of the deceased with a ballam. It was held that,
"though the accused had the right of private defence, he had obviously exceeded it and",
"was, therefore, liable under section 304-Part I, IPC, 1860.390. A somewhat contrary view",
"has, however, been taken by the Supreme Court in a later case where too the accused",
"had exercised his right of private defence against a lathi blow on the head. Thus, in Deo",
Narain's case it has been held that the accused was justified in using his spear though,
"the other party had aimed only a lathi blow on the head, which being a vulnerable part",
"even a lathi blow could prove dangerous.391. It thus, appears that the part of the body",
against which the attack is directed is more important than the weapon used. Where,
the deceased attacked the accused with a stick and the accused retaliated by stabbing,
"the former to death his offence fell under section 304-Part I, IPC, 1860, as he had",
exceeded the right of private defence.392. Evidence on record showed that accused had,
"received many injuries on his person, and exercised right of private defence of person",
in good faith. He had sustained four injuries on various parts of his body including on,
"vital parts, thus, case would be covered by Exception 2 to section 300 of IPC, 1860. The",
"nature of weapon used, circumstances in which incident took place, injuries on body of",
"accused as well as deceased, showed that there was no premeditation. He had",
exercised his right of self-defence but having regard to the injuries inflicted by him on,
"deceased, he exceeded same.393. Where the accused, a person with only one hand was",
attacked with a bamboo and sustained several injuries and then to ward off further,
attack gave only one blow with a pen-knife on the aggressor which unfortunately fell on,
"a vital part resulting in his death, it could not be said that he had exceeded his right of",
"private defence. For the accused it was a case of life or death struggle and his case,",
"therefore, squarely fell within the ambit of clauses (1) and (2) of section 100, IPC, 1860,",
and he could not be held guilty of any offence.394. In a sudden group clash over a,
house both sides received injuries and one person was killed. There was no prior,
enmity between two groups and the whole incident developed suddenly. Accused,
"persons received quite a number of injuries, some on vital parts, and the prosecution",
was not able to explain those injuries. It was held that the accused could not be said to,
have exceeded the right of private defence. Their conviction was set aside.395. Two,
armed bullies of a locality raided a flat in a drunken state and demanded money from,
the inmates with the use of force. This amounted to the crime of extortion giving the,
inmates the right to defend themselves against the raiders. Both the raiders met their,
"death in the process of the ensuing scuffle, it being not known nor capable of being",
ascertained who played what roll in the combat. The Supreme Court held that it could,
"not be said of any one of them that he exceeded the right of private defence. Hence,",
they could not be convicted under section 302 read with section 34.396. The accused,
using his licenced gun fired only one shot after receiving a severe blow on his head,
fracturing his skull. It was held that he did not exceed his right of self-defence.397. A,
person had a lurking suspicion about illicit relations between his elder brother's wife,
and the accused and he caught hold of the accused when the latter visited their house,
to meet her. The accused inflicted knife injuries on him to extricate himself but did not,
inflict any further injury after freeing himself. It was held that the accused had not,
exceeded the right of private defence and was not guilty under section 307 for,
attempted murder.398. Where the accused fired a single gunshot at the deceased party,
to save his uncle who had received serious injuries in the attack made by the deceased,
"party, the gun shot unfortunately proved fatal, the accused could not be said to have",
exceeded his right of self- defence.399. Where in a murder case over obstruction of,
"water course, the victim assaulted the accused twice and injured him whereupon the",
"accused inflicted a blow on him which proved fatal, the accused could not be said to",
have exceeded his right of private defence.400.,
A police party was looking for the accused to affect their arrest. The complainant party,
"was helping the police. On being located, the accused party opened fire. The police",
withdrew after receiving injuries. Two members of the complainant party were killed.,
Even a runaway complainant was shot down. This showed that the attack continued,
"even when all danger to the accused party had ceased. Thus, they exceeded the right of",
private defence. Conviction for murder was upheld.401.,
"Where the death occurred due to the firing resorted to as part of the self-defence, the",
"same would amount to 'culpable homicide not amounting to murder', which was",
"committed without any pre-meditation in a sudden fight, in the heat of passion and",
upon a sudden quarrel and that the offender could not be said to have taken undue,
"advantage or acted in a cruel or unusual manner, which would normally fall under",
"Exception 4 of section 300 IPC, 1860.402.",
[s 97.9] Burden on accused to probablise his defence.—,
It is for the accused to establish the plea of private defence. He is not required to prove,
it beyond reasonable doubt. The Court has only to examine probabilities in appreciating,
"the plea. In the present case, the accused had miserably failed to establish or even to",
probablise his defence. The deceased persons had merely asked them why they had,
"cut the mature crop, when they became the victim of attack. They were unarmed.403.",
The accused need not take the plea of private defence explicitly. He can succeed in his,
plea if he is able to bring out from the evidence of the prosecution witness or other,
evidence of the prosecution witness or other evidence that the apparent criminal act,
was committed by him in exercise of private defence. The burden on the accused is not,
as onerous as that which lies on the prosecution. While the prosecution is required to,
"prove its case beyond a reasonable doubt, the accused can discharge his onus by",
establishing preponderance of probabilities.404.,
"1. Shankar Narayan Bhadolkar v State of Maharashtra, AIR 2004 SC 1966 [LNIND 2004 SC 1370] :",
2004 Cr LJ 1778 : (2005) 9 SCC 71 [LNIND 2004 SC 1370] .,
"2. The Indian Evidence Act, I of 1872, section 105.",
"3. Musammat Anandi, (1923) 45 All 329 ; Babulal, 1960 Cr LJ 437 (All).",
"4. A K Chaudhary v State of Gujarat, 2006 Cr LJ 726 (Guj).",
"5. A K Chaudhary v State of Gujarat, 2006 Cr LJ 726 (Guj).",
"337. Nareshi Singh, (1923) 2 Pat 595.",
"338. Surjit Singh v State of Punjab, 1996 (2) SCC 336 [LNIND 1996 SC 233] at 342 : AIR 1996 SC",
1388 [LNIND 1996 SC 233] .,
"339. Sikandar Singh v State of Bihar, (2010) 7 SCC 477 [LNIND 2010 SC 603] : AIR 2010 SC",
44023 : (2010) 3 SCC(Cr) 417.,
"340. Kashi Ram v State of Rajasthan, (2008) 3 SCC 55 [LNIND 2008 SC 187] : AIR 2008 SC 1172",
[LNIND 2008 SC 187] .,
"341. Ibid, See also Narain Singh v State of Haryana, (2008) 11 SCC 540 [LNIND 2008 SC 864] :",
"AIR 2008 SC 2006 [LNIND 2008 SC 864] : 2008 Cr LJ 2613 , for restatement of principles.",
"342. State of MP v Mohandas, 1992 Cr LJ 101 (MP).",
"343. State of MP v Mohandas, 1991 Cr LJ 101 (MP).",
"344. Bhagat Singh v The State, 1992 Cr LJ 221 (All).",
"345. Jarnail Singh v State of Punjab, AIR 1993 SC 72 : 1992 Cr LJ 3863 : 1993 Supp (1) SCC 588",
". See also Jaipal v State of Haryana, AIR 2000 SC 1271 [LNIND 2000 SC 448] : 2000 Cr LJ 1778 ;",
"Murali v State of TN, 2001 Cr LJ 470 (SC).",
"346. V Subramani v State of TN, 2005 Cr LJ 1727 SC : AIR 2005 SC 1983 [LNIND 2005 SC 224] :",
(2005) 10 SCC 358 [LNIND 2005 SC 224] .,
"347. Kashi Ram v State of MP, AIR 2001 SC 2902 [LNIND 2001 SC 2369] : (2002) 1 SCC 71",
[LNIND 2001 SC 2369] .,
"348. Munshi Ram v Delhi Administration, AIR 1968 SC 702 [LNIND 1967 SC 347]: 1968 Cr LJ 806;",
"Rajanikant, (1970) 2 SCC 866 [LNIND 1970 SC 401] : 1970 SCC (Cr) 575 ; State of Rajasthan v",
"Manoj Kumar, 2014 Cr LJ 2420.",
"349. State of Gujarat v Bai Fatima, 1975 Cr LJ 1079 : AIR 1975 SC 1478 [LNIND 1975 SC 130] .",
"350. Raza Pasha, 1983 Cr LJ 977 : AIR 1983 SC 575 [LNIND 1983 SC 79] . Sekar v State of TN,",
"2003 Cr LJ 93 : AIR 2002 SC 3667 [LNIND 2002 SC 628] , the plea of self-defence cannot be",
based upon surmises and speculation. The Court noted the relevant factors in order to find out,
whether the right is available or not.,
"351. Salim Zia, 1979 Cr LJ 323 : AIR 1979 SC 319 ; Yogendra Morarji, 1980 Cr LJ 459 : AIR 1980",
"SC 660 . Mohd. Ramzani v State of Delhi, 1980 Cr LJ 1010 : 1980 SCC (Cr) 907 : AIR 1980 SC",
1341 . The burden is on the accused. The Court does not presume the existence of the,
"circumstances which entitle the accused to his defence. Subodh Tewari v State of Assam, 1988",
"Cr LJ 223 Gau. To the same effect, Savita Kumari v UOI, 1993 AIR SCW 1174 : 1993 Cr LJ 1590 :",
(1993) 2 SCC 357 [LNIND 1993 SC 87] .,
"352. Jharmal v State of Haryana, 1995 Cr LJ 3212 : 1994 (2) SCC 551 [LNIND 1994 SC 256] ;",
"Rizwan v State of Chhatisgarh, AIR 2003 SC 976 [LNIND 2003 SC 72] , burden of proof is on the",
accused is to establish his plea. It is discharged by showing preponderance of probabilities in,
favour of his plea.,
"353. Debraj v State of UP, (1993) Supp 2 SCC 552 followed in Maskandar Ali v Assam, (1995) 2",
Cr LJ 1900 Gau. Where the Court said that the burden is on the accused to prove his plea. But,
he has not to establish his right beyond all doubt. It is enough that he is able to show on a,
"preponderance of probability that he acted in private defence. Also to the same effect, Dwarka",
"Pd. v State of UP, (1993) AIR SCW 1122 : (1993) Supp. 3 SCC 141.",
"354. Bahadur Singh v State of Punjab, AIR 1992 SC 70 : 1992 Cr LJ 3709 : (1992) 4 SCC 503 .",
"355. Pulicherla Nagaraju v State of Andhra Pradesh, AIR 2006 SC 3010 [LNIND 2006 SC 621] :",
(2006) 11 SCC 444 [LNIND 2006 SC 621] .,
"356. Hafiz v State of UP, (2005) 12 SCC 599 [LNIND 2005 SC 773] .",
"357. Rose, (1884) 15 Cox 540. Kashiram v State of MP, (2002) 1 SCC 71 [LNIND 2001 SC 2369] ,",
incident of gun shot injuries took place near the house of the accused persons. One of them,
sustained gun shot and other wounds. This created an apprehension of further grievious hurt,
being caused to the victims. This entitled them to exercise private defence even to the extent of,
causing death.,
"358. Yeshwant Rao v State of MP, AIR 1992 SC 1633 : 1992 Cr LJ 2779 .",
"359. Raghavan Achari v State of Kerala, AIR 1993 SC 203 : 1992 Cr LJ 3857 : 1993 Supp (1) SCC",
719 .,
"360. Bhagwan Swaroop v State of MP, AIR 1992 SC 675 [LNIND 1992 SC 112] : 1992 Cr LJ 777 :",
(1992) 2 SCC 406 [LNIND 1992 SC 112] .,
"361. Hukam Singh, (1961) 2 Cr LJ 711 : AIR 1961 SC 1541 [LNIND 1961 SC 136] .",
"362. Munshi Ram, AIR 1968 SC 702 [LNIND 1967 SC 347] : 1968 Cr LJ 806 .",
"363. Buduka Kalita, 1972 Cr LJ 1627 (Gau).",
"364. Puran Singh, 1975 Cr LJ 1479 : AIR 1975 SC 1674 [LNIND 1975 SC 174] .",
"365. State of Orissa v Bhagabat, 1978 Cr LJ 1566 (Orissa).",
"366. Abdul Kadir v State of Assam, 1985 Cr LJ 1898 : AIR 1986 SC 305 : 1985 SCC (Cr) 501. See",
"also Mehruddin Sheikh v State of WB, 1985 SCC (Cr) 241 : (1985) 2 SCC 448 where the Court",
said that a factual study of the respective position of the parties is necessary.,
"367. Nagendra Pal Singh v State of UP, AIR 1993 SC 950 : 1993 Cr LJ 190 : (1993) Supp (3) SCC",
197 .,
"368. State of UP v Niyamat, (1987) 3 SCC 434 [LNIND 1987 SC 391] : AIR 1987 SC 1652 [LNIND",
1987 SC 391] : 1987 Cr LJ 1881 .,
"369. Ramesh Laxman Pardesi v State of Maharashtra, 1987 SCC (Cr ) 615 : 1987 Supp SCC 1 .",
"370. Patori Devi v Amar Nath, (1988) 1 SCC 610 : AIR 1988 SC 560 : 1988 Cr LJ 836 .",
"371. Kashi Ram v State of MP, AIR 2001 SC 2902 [LNIND 2001 SC 2369] : (2002) 1 SCC 71",
"[LNIND 2001 SC 2369] Also see B Parichhat v State of MP, AIR 1972 SC 535 : (1972) 4 SCC 694 :",
1972 Cr LJ 322 .,
"372. Sachee, (1867) 7 WR (Cr) 76 (112). Mohinder Singh v State of Punjab, (1995) 1 Cr LJ 244",
"(P&H) an attempt to take forcible possession of land resisted, resistance held justified, the",
Court explained when the right of resistance can extend to causing death. Tanaji Govind Misal v,
"State of Maharashtra, AIR 1998 SC 174 [LNIND 1997 SC 1211] : 1998 Cr LJ 340 , evidence",
"showed that the property belonged to the complainant party and not to attackers, the owners",
"suffered 51 wounds whereas the attackers received 15 wounds, which were also insignificant.",
The Court held that the conviction of the accused could not be altered from under section 300,
"to section 304. Pohap Singh v State of Haryana, 1998 Cr LJ 1564 : AIR 1998 SC 1554 [LNIND",
"1997 SC 1658] , the accused party received more injuries than those suffered by the deceased's",
party. The Court said that not the accused but the deceased was the aggressor and the accused,
acted in self defence.,
"373. Mokee, (1869) 12 WR (Cr) 15.",
"374. Birjoo Singh v Khub Lall, (1873) 19 WR (Cr) 66.",
375. Triloki Nath v State of UP AIR 2006 SC 321 [LNIND 2005 SC 867] : (2005) 13 SCC 323,
"[LNIND 2005 SC 867] ; in this case, occurrence took place 300 paces away from the disputed",
plot - Plea of self defence against property held not available to the accused.,
"376. AR Yelve v State of Maharashtra, 1996 Cr LJ 1718 : AIR 1996 SC 2945 [LNIND 1996 SC 336]",
"; Ram Pal v State of Haryana, (2009) 7 SCC 614 [LNIND 2009 SC 1264] : AIR 2009 SC 2847",
"[LNIND 2009 SC 1264] , appellants were not in settled possession of property and as such had",
no right of private defence to defend possession of that property. They were aggressors coming,
"to place of occurrence fully armed, reversal of acquittal of accused by the High Court was",
upheld.,
"377. Panna Lal v State of MP, 2015 Cr LJ 3286 .",
"378. Jassa Singh v State of Haryana, AIR 2002 SC 520 [LNIND 2002 SC 13] : (2002) 2 SCC 481",
[LNIND 2002 SC 13] .,
"379. Kishan Chand v State of UP, (2007) 14 SCC 737 [LNIND 2007 SC 1190] : AIR 2008 SC 133",
[LNIND 2007 SC 1190] .,
"380. Adhimoolam v State, 1995 Cr LJ 1051 (Mad) following Puran Singh v State of Punjab, AIR",
1975 SC 1674 [LNIND 1975 SC 174] : (1975) Cr LJ 1479 (SC) where the court cited AIR 1968 SC,
702 [LNIND 1967 SC 347] : 1968 Cr LJ 806 as defining the concept of settled possession.,
"381. Satya Narain Yadav v Gajanand, (2008) 16 SCC 609 [LNIND 2008 SC 2782] : AIR 2008 SC",
3284 [LNIND 2008 SC 2782] .,
"382. State of Haryana v Sher Singh, AIR 2002 SC 3223 [LNIND 2002 SC 1215] .",
"383. Ram Pat v State of Haryana, (2009) 7 SCC 614 [LNIND 2009 SC 1264] : (2009) 8 SCR 1115",
[LNIND 2009 SC 1264] : AIR 2009 SC 2847 [LNIND 2009 SC 1264] .,
"384. Ashok Kumar v State of TN, AIR 2006 SC 2419 [LNIND 2006 SC 360] : (2006) 10 SCC 157",
[LNIND 2006 SC 360] .,
"385. Daulat Trimbak Shewale v State of Maharashtra, (2004) 10 SCC 715 [LNIND 2004 SC 586] :",
AIR 2004 SC 3140 [LNIND 2004 SC 586] : 2004 Cr LJ 2825 .,
"386. Madam v State of MP, (2008) 11 SCC 657 [LNIND 2008 SC 1390] : AIR 2008 SC 3083",
[LNIND 2008 SC 1390] : 2008 Cr LJ 3950 .,
"387. Narain Singh v State of Haryana, (2008) 11 SCC 540 [LNIND 2008 SC 864] : AIR 2008 SC",
2006 [LNIND 2008 SC 864] : 2008 Cr LJ 2613 . Following principles stated in James Martin v,
"State of Kerala, (2004) 2 SCC 203 [LNIND 2003 SC 1097] : (2004) 1 KLT 513 [LNIND 2003 SC",
"1097] . Salim v State of Haryana, (2008) 12 SCC 705 [LNIND 2008 SC 1613] : (2008) Cr LJ 4327 ,",
"finding that one of the parties used force and fire causing death to take possession of land,",
"private defence not available. The Court said that even if the right was there, it was exceeded.",
"388. AC Gangadhar v State of Karnataka, (2009) 14 SCC 710 [LNIND 1998 SC 506] : AIR 1998 SC",
2381 [LNIND 1998 SC 506] .,
"389. Vajrapu Sambayya Naidu v. State of A.P., (2004) 10 SCC 152 [LNIND 2003 SC 176] : AIR",
2003 SC 3706 [LNIND 2003 SC 176] .,
"390. Parichhat, 1972 Cr LJ 322 : AIR 1972 SC 535 . Dilip Singh v State of Rajasthan, (1994) 2 Cr",
"LJ 2439 (Raj) in a dispute over possession of property, one party tried to take forcible",
"possession by committing criminal trespass, they possessed only an agricultural implement,",
not capable of causing apprehension of death but even so the other party fired at them killing,
"one, held, they exceeded private defence, punishable under section 304-I. Telantle v State of AP,",
(1994) 2 Cr LJ 2302 (AP) number of injuries (18 in this case caused by son on his father),
"indicated excess of the right of private defence. Thomas George v State of Kerala, AIR 2000 SC",
"3497 : 2000 Cr LJ 3475 , right of private defence of person, punishment altered from under",
"section 302 to that under section 304, Part II. Sekar v State of TN, 2003 Cr LJ 53 (SC) quarrel",
"over sheeping damaging crop of the victim, owner of the sheep struck him, he fell down and",
"was struck in the neck even after that. Right of private defence exceeded; Madan v State of MP,",
(2008) 11 SCC 657 [LNIND 2008 SC 1390] : AIR 2008 SC 3083 [LNIND 2008 SC 1390] : 2008 Cr,
"LJ 3950 , accused persons forced open the wooden door and entered the place where the wife",
and daughter of one of them were sleeping. They caught hands of the householder and,
assaulted him with lathis. He later died. The wife and daughter were also assaulted when they,
"tried to intervene. The attackers were also injured to a certain extent and therefore, had the right",
of private but they exceeded it. Their punishment was altered from under section 302 to section,
304 Pt. I.,
"391. Deo Narain, 1973 Cr LJ 677 (SC) : (1973) 3 SCR 57 [LNIND 1972 SC 572] : AIR 1973 SC 473",
"[LNIND 1972 SC 572] . See further Laxman Sahu v State of Orissa, 1988 Cr LJ 188 : AIR 1988 SC",
83 : 1986 Supp SCC 555 : 1987 SCC (Cr) 173 where a lathi blow inflicted on the forehead caused,
"death without any apparent need for it, the accused was convicted under section 304 part I and",
"the above case was distinguished.See also Sukumar Roy v State of WB, AIR 2006 SC 3406",
[LNIND 2006 SC 882] : (2006) 10 SCC 635 [LNIND 2006 SC 882] .,
"392. Rafiq, 1979 Cr LJ 706 : AIR 1979 SC 1179 ; Yogendra Morarji, 1980 Cr LJ 459 : AIR 1980 SC",
"660 ; see also VC Cheriyan v State, 1982 Cr LJ 2071 (Ker). The accused receiving gun shot",
"injuries, opened fire at the other party killing two persons, entitled to right of private defence but",
"exceeded, convicted under scetion 304 Part I and not for murder Jagtar Singh v State of Punjab,",
"AIR 1993 SC 2448 [LNIND 1993 SC 11] : 1993 Cr LJ 306 . See also Jasbir Singh v State of Punjab,",
"AIR 1993 SC 968 : 1993 Cr LJ 301 : (1993) Supp (2) SCC 760 , diversion of flow of tubewell",
"water by the deceased, accused fired killing him on the spot.",
"393. Beersingh Jagatsingh v State of Maharashtra, 2013Cr LJ2248 (Bom).",
"394. Bayadas Bawri, 1982 Cr LJ 213 (Gau).",
"395. Ram Phal v State of Haryana, AIR 1993 SC 1979 : 1993 Cr LJ 2603 : 1993 Supp (3) SCC 740",
". Contra : see Kulwant Singh v State of Punjab, AIR 1994 SC 1271 : 1994 Cr LJ 1109 , group clash,",
"injuries on both sides, one died, circumstances did not entitle the exercise of right of self-",
defence to the accused.,
"396. Kishore Shambudatta Mishra v State of Maharashtra, AIR 1989 SC 1173 : 1989 Cr LJ 1149 :",
1989 Supp (1) SCC 399 .,
"397. Kamal Singh v State of MP, (1995) 2 Cr LJ 1834 MP.",
"398. Krushna Chandra Bisoi v State of Orissa, 1992 Cr LJ 1766 (Ori).",
"399. Sukhdev Singh v State of Punjab, 1995 Cr LJ 3227 (SC).",
"400. Gurdev Singh v State of Rajasthan, 1996 Cr LJ 1270 (Raj). State v Bhuri, 1997 Cr LJ 708",
"(Raj), mother of accused attacked and an injury caused with a sharp weapon, the accused hit",
"back with grand force a lathi blow which fell on the head of the aggressor causing his death,",
right of private defence exceeded.,
"401. Ram Avtar v State of UP, 2003 Cr LJ 480 (SC).",
"402. Rajinder Singh v State of Haryana, 2015 Cr LJ 1330 .",
"403. Abid v State of UP, (2009) 14 SCC 701 [LNIND 2009 SC 1395] .",
"404. Krishnan v State of TN, AIR 2006 SC 3037 [LNIND 2006 SC 612] : (2006) 11 SCC 304",
[LNIND 2006 SC 612] .,
THE INDIAN PENAL CODE,
CHAPTER IV GENERAL EXCEPTIONS,
THIS chapter has been framed in order to obviate the necessity of repeating in every,
penal clause a considerable number of limitations.,
The word 'offence' in this chapter denotes a thing punishable under the Code or under,
any special or local law when it satisfied the conditions laid down in section 40 of the,
Code.,
"The ""general exceptions"" contained in sections 76–106 make an offence a non-offence.",
"The ""general exceptions"" enacted by Indian Penal Code, 1860 (IPC, 1860) are of",
"universal application and for the sake of brevity of expression, instead of repeating in",
"every section that the definition is to be taken subject to the exceptions, the Legislature",
"by section 6 IPC, 1860 enacted that all the definitions must be regarded as subject to",
"the general exceptions. Therefore, general exceptions are part of definition of every",
"offence contained in IPC, 1860, but the burden to prove their existence lied on the",
accused.1.,
The following acts are exempted under the Code from criminal liability:—,
1. Act of a person bound by law to do a certain thing (section 76).,
2. Act of a Judge acting judicially (section 77).,
3. Act done pursuant to an order or a judgment of a Court (section 78).,
"4. Act of a person justified, or believing himself justified, by law (section 79).",
5. Act caused by accident (section 80).,
6. Act likely to cause harm done without criminal intent to prevent other harm,
(section 81).,
7. Act of a child under seven years (section 82).,
"8. Act of a child above seven and under 12 years, but of immature understanding",
(section 83).,
9. Act of a person of unsound mind (section 84).,
10. Act of an intoxicated person (section 85) and partially exempted (section 86).,
11. Act not known to be likely to cause death or grievous hurt done by consent of,
the sufferer (section 87).,
12. Act not intended to cause death done by consent of sufferer (section 88).,
13. Act done in good faith for the benefit of a child or an insane person by or by the,
consent of guardian (section 89).,
14. Act done in good faith for the benefit of a person without consent (section 92).,
15. Communication made in good faith to a person for his benefit (section 93).,
16. Act done under threat of death (section 94).,
17. Act causing slight harm (section 95).,
18. Act done in private defence (sections 96–106).,
"The above exceptions, strictly speaking, come within the following seven categories:—",
"1. Judicial acts (section. 77, 78).",
"2. Mistake of fact (sections 76, 79).",
3. Accident (section 80).,
"4. Absence of criminal intent (sections 81–86, 92–94).",
"5. Consent (sections 87, 90).",
6. Trifling acts (section 95).,
7. Private defence (sections 96–106).,
"Onus of proving exception lies on accused.—When a person is accused of any offence,",
the burden of proving the existence of circumstances bringing the case within any of,
"the general exceptions in the Penal Code, or within any special exception or proviso",
"contained in any other part of the same Code, or in any law defining the offence, is",
"upon him, and the Court shall presume the absence of such circumstances.2.",
Although the law lays down that the onus of proving circumstances which give the,
"benefit of a general exception to an accused person lies on him, and in the absence of",
"evidence the presumption is against the accused, this does not mean that the accused",
"must lead evidence. If it is apparent from the evidence on the record, whether produced",
"by the prosecution or by the defence, that a general exception would apply, then the",
presumption is removed and it is open to the Court to consider whether the evidence,
proves to its satisfaction that the accused comes within the exception.3.,
Applicability of General exceptions during investigation.—In considering that whether,
"accusation made in the complaint makes out a case for commission of offence or not,",
the police while reaching the prima facie satisfaction of suspecting the commission of,
"cognizable offence, cannot ignore the general exception as provided under IPC, 1860",
"as per Chapter IV of IPC, 1860. If on the basis of the allegation made in the complaint,",
"the case is falling in general exceptions, it can be said that the action cannot be termed",
as an offence.4. Investigating officer is bound to investigate and confirm that despite,
"what is contained in the ""General Exceptions""; acts committed by accused shall",
"constitute offence under IPC, 1860. This shall be done, by virtue of section 6 of IPC,",
"1860. In the light of section 6 of IPC, 1860, definition of every offence is to be",
"understood subject to the ""General Exceptions"". Therefore, investigation shall not",
confine merely to the acts committed by a person. Depending on facts and,
"circumstances of each case, many other relevant facts also have to be investigated",
"into, in the light of the provisions contained in ""General Exceptions"". It is only then that",
an investigating officer will be able to confirm whether the act committed by a person,
"is an offence or not, as defined in IPC, 1860 subject to what is contained in ""General",
"Exceptions"". Further, the category of self-defence falling in general exception would fall",
"in a different category than the general exceptions, which are provided in the very",
chapter for exercise of the statutory duty or lawful power either under the mistake of,
law or fact or mistaken belief of law or fact.5.,
Of the Right of Private Defence,
"[s 98] Right of private defence against the act of a person of unsound mind,",
etc.,
"When an act, which would otherwise be a certain offence, is not that offence, by",
"reason of the youth, the want of maturity of understanding, the unsoundness of mind",
"or the intoxication of the person doing that act, or by reason of any misconception on",
"the part of that person, every person has the same right of private defence against",
that act which he would have if the act were that offence.,
ILLUSTRATIONS,
"(a) Z, under the influence of madness, attempts to kill A; Z is guilty of no offence. But A",
has the same right of private defence which he would have if Z were sane.,
"(b) A enters by night a house which he is legally entitled to enter Z, in good faith, taking",
"A for a house-breaker, attacks A. Here Z, by attacking A under this misconception,",
"commits no offence. But A has the same right of private defence against Z, which he",
would have if Z were not acting under that misconception.,
COMMENT.—,
The right of private defence would have lost most of its value if it was not allowed to be,
exercised against persons suffering from the incapacities mentioned in this section.,
"1. Shankar Narayan Bhadolkar v State of Maharashtra, AIR 2004 SC 1966 [LNIND 2004 SC 1370] :",
2004 Cr LJ 1778 : (2005) 9 SCC 71 [LNIND 2004 SC 1370] .,
"2. The Indian Evidence Act, I of 1872, section 105.",
"3. Musammat Anandi, (1923) 45 All 329 ; Babulal, 1960 Cr LJ 437 (All).",
"4. A K Chaudhary v State of Gujarat, 2006 Cr LJ 726 (Guj).",
"5. A K Chaudhary v State of Gujarat, 2006 Cr LJ 726 (Guj).",
THE INDIAN PENAL CODE,
CHAPTER IV GENERAL EXCEPTIONS,
THIS chapter has been framed in order to obviate the necessity of repeating in every,
penal clause a considerable number of limitations.,
The word 'offence' in this chapter denotes a thing punishable under the Code or under,
any special or local law when it satisfied the conditions laid down in section 40 of the,
Code.,
"The ""general exceptions"" contained in sections 76–106 make an offence a non-offence.",
"The ""general exceptions"" enacted by Indian Penal Code, 1860 (IPC, 1860) are of",
"universal application and for the sake of brevity of expression, instead of repeating in",
"every section that the definition is to be taken subject to the exceptions, the Legislature",
"by section 6 IPC, 1860 enacted that all the definitions must be regarded as subject to",
"the general exceptions. Therefore, general exceptions are part of definition of every",
"offence contained in IPC, 1860, but the burden to prove their existence lied on the",
accused.1.,
The following acts are exempted under the Code from criminal liability:—,
1. Act of a person bound by law to do a certain thing (section 76).,
2. Act of a Judge acting judicially (section 77).,
3. Act done pursuant to an order or a judgment of a Court (section 78).,
"4. Act of a person justified, or believing himself justified, by law (section 79).",
5. Act caused by accident (section 80).,
6. Act likely to cause harm done without criminal intent to prevent other harm,
(section 81).,
7. Act of a child under seven years (section 82).,
"8. Act of a child above seven and under 12 years, but of immature understanding",
(section 83).,
9. Act of a person of unsound mind (section 84).,
10. Act of an intoxicated person (section 85) and partially exempted (section 86).,
11. Act not known to be likely to cause death or grievous hurt done by consent of,
the sufferer (section 87).,
12. Act not intended to cause death done by consent of sufferer (section 88).,
13. Act done in good faith for the benefit of a child or an insane person by or by the,
consent of guardian (section 89).,
14. Act done in good faith for the benefit of a person without consent (section 92).,
15. Communication made in good faith to a person for his benefit (section 93).,
16. Act done under threat of death (section 94).,
17. Act causing slight harm (section 95).,
18. Act done in private defence (sections 96–106).,
"The above exceptions, strictly speaking, come within the following seven categories:—",
"1. Judicial acts (section. 77, 78).",
"2. Mistake of fact (sections 76, 79).",
3. Accident (section 80).,
"4. Absence of criminal intent (sections 81–86, 92–94).",
"5. Consent (sections 87, 90).",
6. Trifling acts (section 95).,
7. Private defence (sections 96–106).,
"Onus of proving exception lies on accused.—When a person is accused of any offence,",
the burden of proving the existence of circumstances bringing the case within any of,
"the general exceptions in the Penal Code, or within any special exception or proviso",
"contained in any other part of the same Code, or in any law defining the offence, is",
"upon him, and the Court shall presume the absence of such circumstances.2.",
Although the law lays down that the onus of proving circumstances which give the,
"benefit of a general exception to an accused person lies on him, and in the absence of",
"evidence the presumption is against the accused, this does not mean that the accused",
"must lead evidence. If it is apparent from the evidence on the record, whether produced",
"by the prosecution or by the defence, that a general exception would apply, then the",
presumption is removed and it is open to the Court to consider whether the evidence,
proves to its satisfaction that the accused comes within the exception.3.,
Applicability of General exceptions during investigation.—In considering that whether,
"accusation made in the complaint makes out a case for commission of offence or not,",
the police while reaching the prima facie satisfaction of suspecting the commission of,
"cognizable offence, cannot ignore the general exception as provided under IPC, 1860",
"as per Chapter IV of IPC, 1860. If on the basis of the allegation made in the complaint,",
"the case is falling in general exceptions, it can be said that the action cannot be termed",
as an offence.4. Investigating officer is bound to investigate and confirm that despite,
"what is contained in the ""General Exceptions""; acts committed by accused shall",
"constitute offence under IPC, 1860. This shall be done, by virtue of section 6 of IPC,",
"1860. In the light of section 6 of IPC, 1860, definition of every offence is to be",
"understood subject to the ""General Exceptions"". Therefore, investigation shall not",
confine merely to the acts committed by a person. Depending on facts and,
"circumstances of each case, many other relevant facts also have to be investigated",
"into, in the light of the provisions contained in ""General Exceptions"". It is only then that",
an investigating officer will be able to confirm whether the act committed by a person,
"is an offence or not, as defined in IPC, 1860 subject to what is contained in ""General",
"Exceptions"". Further, the category of self-defence falling in general exception would fall",
"in a different category than the general exceptions, which are provided in the very",
chapter for exercise of the statutory duty or lawful power either under the mistake of,
law or fact or mistaken belief of law or fact.5.,
Of the Right of Private Defence,
[s 99] Acts against which there is no right of private defence.,
There is no right of private defence against an act which does not reasonably cause,
"the apprehension of death or of grievous hurt, if done, or attempted to be done, by a",
"public servant acting in good faith under colour of his office, though that act, may not",
be strictly justifiable by law.,
There is no right of private defence against an act which does not reasonably cause,
"the apprehension of death or of grievous hurt, if done, or attempted to be done, by the",
"direction of a public servant acting in good faith under colour of his office, though that",
direction may not be strictly justifiable by law.,
There is no right of private defence in cases in which there is time to have recourse to,
the protection of the public authorities.,
Extent to which the right may be exercised.,
The right of private defence in no case extends to the inflicting of more harm than,
it is necessary to inflict for the purpose of defence.,
Explanation 1.—A person is not deprived of the right of private defence against an,
"act done, or attempted to be done, by a public servant, as such, unless he knows",
"or has reason to believe, that the person doing the act is such public servant.",
Explanation 2.—A person is not deprived of the right of private defence against an,
"act done, or attempted to be done, by the direction of a public servant, unless he",
"knows, or has reason to believe, that the person doing the act is acting by such",
"direction, or unless such person states the authority under which he acts, or if he",
"has authority in writing, unless he produces such authority, if demanded.",
COMMENT.—,
This section indicates the limits within which the right of private defence should be,
exercised.,
[s 99.1] First clause.—,
This clause applies to those cases in which the public servant is acting in good faith,
"under colour of his office, though the particular act being done by him may not be",
justifiable by law.405. Where officers of Delhi Municipal Corporation acting in good faith,
by virtue of powers delegated to them by the Commissioner attempted to seize the,
"buffalo of the accused with a view to recover arrears of milk tax, the mere fact that no",
prior notice was issued to the accused as required by the Municipal Act would not,
make their act entirely outside the law and as such accused had no private defence,
under section 99 of the Code. The officers had merely erred in exercise of their,
"powers.406. The clause applies to a case where an official has done wrongly, what he",
"might have done rightly, but not to cases where the act could not have been done",
rightly at all by the official concerned.407. The clause applies where a public servant,
"acts irregularly in the exercise of his powers, and not where he acts outside the scope",
of his powers.408. Where a police officer acting bona fide under colour of his office,
"arrests a person but without authority, the person so arrested has no right of self-",
defence against the officer.409. If the act of a public servant is ultra vires the right of,
"private defence may be exercised against him.410. A police-officer, holding a search,",
"without a written authority, cannot be said to be acting 'under colour of his office'.411.",
[s 99.2] CASES.—Resistance to officer acting without warrant.—,
A police-officer attempted without a search-warrant to enter a house in search of,
"property alleged to have been stolen and was obstructed and resisted. It was held that,",
even though the officer was not strictly justified in searching the house without a,
"warrant, the person obstructing and resisting could not set up the illegality of the",
"officer's proceeding as a justification of his obstruction, as it was not shown that the",
officer was acting otherwise than in good faith and without malice.412. Where a raiding,
party organized by the official of the Municipal Corporation to round up stray cattle,
"within the limits of the Corporation, was attacked when it had rounded up some cattle",
"and was leading the cattle to the cattle pound, it was held that the act of the raiding",
party was fully justifiable by law and that the accused had no right of private,
defence.413. Where a party was fired at to dispel them from their attempt to rescue,
"their friend from an illegal police detention, it was held that this was sufficient to cause",
reasonable apprehension in their mind of death or grievous injury.414.,
[s 99.3] Illegal attachment does not justify resistance.—,
"Where articles protected from attachment were attached, it was held that this act did",
not justify resistance.415. Where the property of a person was wrongfully attached as,
"the property of certain absconders, it was held that the rightful owner had no right of",
"private defence of his property, as the police-officer was acting in good faith under",
"colour of his office, and that even supposing the order of attachment might not have",
"been properly made, that would in itself not be sufficient ground for such a defence.416.",
[s 99.4] Second clause.—,
"The first clause speaks of acts done by a public servant, this clause, of acts done under",
the direction of a public servant. It is not necessary that the doer should be a public,
servant. Explanation 2 must be read conjointly with this clause.,
[s 99.5] CASE.—Resistance to execution of warrant.—,
"Where a police-officer attempted to execute a warrant the issue of which was illegal, it",
was held that the accused were justified in their resistance.417.,
[s 99.6] Third clause.—,
The third clause of this section must be read with the first clause of section 105.418. It,
places an important restriction on the exercise of the right of defence. The right of,
"private defence being granted for defence only, it must not and cannot legally be",
exercised when there is time to have recourse to the protection of public authorities.,
The right of private defence does not take the place of the functions of those public,
servants who are especially charged with the protection of life and property and the,
"apprehension of offenders, and where the assistance of the public authorities can be",
"procured, the right cannot be lawfully exercised. But the law does not intend that a",
person must run away to have recourse to the protection of public authorities when he,
is attacked instead of defending himself.419. A person in possession cannot be,
expected to leave his property at the mercy of armed trespassers. Where there is,
imminent danger to the property and the person in possession apprehends substantial,
"damage thereto, he is entitled to raise his own arms in defence and retaliate to keep",
away the attack without applying for State aid.420. Where the accused was in rightful,
"possession of the property by virtue of a Court order; under section 145 Cr PC, 1973, he",
had every right to throw out the complainant party from the land and demolish the,
construction stealthily put up thereon.421. The important considerations which always,
arise in order to determine whether the action of the accused is covered by the right of,
"private defence are, first, what is the nature of the apprehended danger, and, second,",
"whether there was time to have recourse to the police authorities, always remembering",
that when both the parties are determined to fight and go up to the land fully armed in,
full expectation of an armed conflict in order to have a trial of strength the right of,
private defence disappears.422.,
[s 99.7] CASES.—Time to obtain protection of public authorities.—,
The accused received information one evening that the complainants intended to go on,
"his land on the following day, and uproot the corn sown in it. At about three o'clock next",
morning he was informed that the complainants had entered on his land and were,
"ploughing up the corn. Thereupon he at once proceeded to the spot, followed by the",
"remaining accused, and remonstrated with the complainants, who commenced an",
"attack on the accused. In the fight which ensued, both sides received serious injuries,",
and the leader of the complainants' party was killed. It was held that the complainants,
"being the aggressors, the accused had the right of private defence and that they were",
not bound to act on the information received on the previous evening and seek the,
"protection of the public authorities, as they had no reason to apprehend a night attack",
"on their property.423. In a case involving an old land dispute, one party (accused)",
offered resistance to prevent the other from ploughing the land and on refusal went up,
to the place where the other was sitting without arms and inflicted stick blows causing,
"death, it was held that the accused was rightly convicted. The Court said that a rightful",
"owner can defend his possession against any attempt to dislodge him, but that once a",
trespasser has established his foothold; resort should be had to public authorities.424.,
The right of private defence does not extend to inflicting of more harm than necessary,
"for the purpose of defence. The prosecution party, in this case, had gone to plough the",
land which was in the possession of the accused (appellant). The latter had time to go,
and report the matter to appropriate authorities constituted under the law. But instead,
"of so doing, they brutally attacked the other party resulting in the death of three",
"persons. Thus, there was no right of private defence. It was held that there was no",
warrant for converting the conviction from u/section 302 to section 304 Part II.425.,
[s 99.8] Fourth clause.—,
The right of private defence is restricted to not inflicting more harm than it is necessary,
to inflict for the purpose of defence. The amount of force necessarily depends on the,
"circumstances of the case, and there is no protection if the harm is caused by",
"excessive violence quite unnecessary to the case.426. For example, a person set by his",
"master to watch a garden or yard is not at all justified in shooting at, or injuring in any",
"way, persons who may come into those premises, even in the night. He ought first to",
see whether he could not take measures for their apprehension.427. The measure of,
self-defence must always be proportionate to the quantum of force used by the,
attacker and which it is necessary to repel.428. In dealing with the question as to,
whether more force is used than is necessary or than was justified by the prevailing,
"circumstances, it would be inappropriate to adopt tests of detached objectivity of a",
Court room. The means which a threatened person adopts or the force which he uses,
should not be weighed in golden scales.429. Though a person exercising his right of,
"private defence is not expected to modulate his defence step by step or tier by tier, yet",
it is necessary to see that it is not totally disproportionate to the injury sought to be,
"averted, e.g., to ward off a slap one cannot fire a gun. Thus, where the father of the",
"accused was allegedly assaulted with lathis which resulted in simple injuries, the",
accused was not justified in firing his gun and thereby killing the attacker. In such a,
case it could not be said that there was a reasonable apprehension of death or,
"grievous hurt within the meaning of clause (1) of section 100, IPC, 1860.430. But at the",
same time it should also be remembered that if a man has real justification to exercise,
"his right of private defence, he cannot be held liable if he slightly exceeds his right of",
"private defence, e.g., where face to face with a murderous attack he fires two shots in",
"quick succession, for these things cannot be weighed in golden scales.431. The right of",
private defence should not be allowed to be pleaded or availed of as pretext for a,
"vindictive, aggressive or retributive purpose.432.",
[s 99.9] CASES.—Justifiable harm.—,
A party attempted to rescue a friend from unlawful police detention. Three rounds were,
fired to dispel them. This caused in their mind a reasonable apprehension of death or,
injury. They tried to snatch the police gun. A police informer intervened and died of,
injuries received in the process. The right of private defence was held to be not,
exceeded.433. In another case the Supreme Court accepted the defence version that,
there were four assailants who had come well prepared to assault at the door of their,
house. In such a situation accused persons could have a reasonable apprehension of,
death or at least of grievous hurt. It was a case of single gunshot which was not,
"repeated. Therefore, it cannot be said that the accused persons had exceeded their",
right of private defence in any manner.434.,
"In view of the fact that the accused was pursued, that he only picked up the weapon",
"when he was chased and that he used it only once, his sentence was reduced to three",
years and nine months.435.,
[s 99.10] Attack on unarmed persons.—,
No right of private defence can exist against an unarmed and unoffending,
individual;436. where the injury was caused to the victim on the vital parts of the body,
"even though he and the witnesses present at the spot were all unarmed, it was held",
that the question of acting in self-defence did not arise.437.,
[s 99.11] Sudden quarrel.—,
The right of private defence was held to be not available where the incident of lathi,
blows causing death took place in the course of a sudden fight.438.,
[s 99.12] More harm caused than necessary.—,
"Where a person killed a weak old woman found stealing at night,439. where a person",
caught a thief in his house at night and deliberately killed him with a pick-axe to prevent,
his escape;440. where a number of persons apprehending a thief committing house-,
breaking strangled him and subjected him to gross maltreatment when he was fully in,
"their power,441. and where a heavy and mechanically propelled vehicle like a jeep was",
"used as a means or weapon for the exercise of the right of private defence,442. the right",
of private defence was negatived.443. Where the injuries suffered by the accused were,
of simple nature than those caused by him to the deceased persons and he went even,
"to the extent of preventing a witness from carrying the victim to a hospital, it was held",
"that the accused was an aggressor and was, therefore, not entitled to the right of",
"private defence.444. Where, on the other hand, two drunk and armed raiders demanded",
money from the residents of a flat and in face to face with the inmates who resisted,
"them, lost their lives, it being not known which inmate played what role, the Supreme",
Court held that it could not be said that more harm was caused than was,
necessary.445. Where the accused caused death in order to repel an attack by a party,
"armed with lethal weapons and which had already caused injuries to the accused, it",
was held that the accused did not exceed his rights as it was not possible for him to,
have weighed in golden scales in the heat of the moment the number of injuries,
required to overcome the attack.446. Where the accused continued to assault the,
"deceased even after he fell to the ground, the possibility of causing injuries in exercise",
of his right of private defence was ruled out.447.,
"Where the accused received an injury on his neck first, the right of private defence was",
held to have arisen. But it was shown that three injuries were caused in return one of,
them entering deep into the chest and causing death. The right of private defence was,
held to have been exceeded. The conviction was modified to one under section,
304(1).448.,
"1. Shankar Narayan Bhadolkar v State of Maharashtra, AIR 2004 SC 1966 [LNIND 2004 SC 1370] :",
2004 Cr LJ 1778 : (2005) 9 SCC 71 [LNIND 2004 SC 1370] .,
"2. The Indian Evidence Act, I of 1872, section 105.",
"3. Musammat Anandi, (1923) 45 All 329 ; Babulal, 1960 Cr LJ 437 (All).",
"4. A K Chaudhary v State of Gujarat, 2006 Cr LJ 726 (Guj).",
"5. A K Chaudhary v State of Gujarat, 2006 Cr LJ 726 (Guj).",
"405. Dalip, (1896) 18 All 246 , 252.",
"406. Kesho Ram, 1974 Cr LJ 814 : AIR 1974 SC 1158 [LNIND 1974 SC 130] .",
"407. Bhairo v State, 1941 Kar 324 ; Pagla Baba, (1957) Cr LJ 769 ; Ouseph Varkey, (1964) 1 Cr LJ",
592 .,
"408. Deoman Shamji, (1958) 61 Bom LR 30 .",
"409. Mohamed Ismail v State, (1935) 13 Ran 754.",
"410. Jogendra Nath Mukerjee, (1897) 24 Cal 320 ; Tulsiram v State, (1888) 13 Bom 168; Haq Dad,",
"(1925) 6 Lah 392; Achhru Ram, (1925) 7 Lah 104.",
"411. Ram Parves, (1944) 23 Pat 328.",
"412. Pukot Kotu, (1896) 19 Mad 349.",
"413. Kanwar Singh, (1965) 2 Cr LJ 1 : AIR 1965 SC 871 [LNIND 1964 SC 194] .",
"414. State of UP v Niyamat, 1987 3 SCC 434 [LNIND 1987 SC 391] : AIR 1987 SC 1652 [LNIND",
"1987 SC 391] : 1989 Cr LJ 1881 . See also Ramji Lal v State of Rajasthan, 1990 Cr LJ 392 Raj,",
"police party arriving at a village at night to recover a woman and to hand her over to her father,",
"the act being illegal and without jurisdiction, this section did not give protection to the police",
against resistance by villagers.,
"415. Poomalai Udayan, (1898) 21 Mad 296.",
"416. Bhai Lal Chowdhry, (1902) 29 Cal 417 .",
"417. Jogendra Nath Mukerjee, (1897) 24 Cal 320 .",
"418. Narsang Pathabhai, (1890) 14 Bom 441.",
"419. Alingal Kunhinayan, (1905) 28 Mad 454.",
"420. State of Orissa v Rabindranath, 1973 Cr LJ 1686 (FB-Ori).",
"421. Akonti Bora, 1980 Cr LJ 138 (Gau).",
"422. Satnarain Das, (1938) 17 Pat 607.",
"423. Narsang Pathabhai, (1890) 14 Bom 441; Pachkauri, (1897) 24 Cal 686 .",
"424. Maguni Charan Pradhan v State of Orissa, (1991) 71 Cut LT 710 : (1991) 3 SCC 352 [LNIND",
1991 SC 191] : 1991 SCC (Cr) 580 : 1991 Cr LR (SC) 463 .,
"425. Ritaram Besra v State of Bihar, (2007) 15 SCC 383 .",
"426. Gokool Bowree, (1866) 5 WR (Cr) 33.",
"427. John Scutty v State, (1824) 1 C & P 319.",
"428. Ram Prasad Mahton, (1919) 4 PLJ 289 , 20 Cr LJ 375.",
"429. Jai Dev, (1963) 1 Cr LJ 495 : AIR 1963 SC 612 [LNIND 1962 SC 249] ; Amjad Khan, 1952 Cr",
LJ 648 : AIR 1952 SC 165 [LNIND 1952 SC 20] ; Puran Singh; 1975 Cr LJ 1479 : AIR 1975 SC,
"1674 [LNIND 1975 SC 174] ; followed in Pattu v State of MP, (1995) 2 Cr LJ 1970 MP, father and",
son were entitled to ward off an attack on them while they were digging a water channel on their,
"ground. Hira, 1972 Cr LJ 225 : AIR 1972 SC 244 .",
"430. State of UP. v Ram Swarup, 1974 Cr LJ 1035 : AIR 1974 SC 1570 [LNIND 1974 SC 472] .",
"Where both parties raised guns in a quarrel but one of them lowered his gun, even so the other",
"fired at him. No occasion for private defence. Conviction for murder upheld, Mohd. Yusuf v State",
"of UP, AIR 1994 SC 1542 [LNIND 1994 SC 126] : (1994) 1 Cr LJ 1631 : 1994 Supp (2) SCC 32 .",
"431. Amjad Khan, supra; See also Jaidev, supra and Yogendra Morarji, 1980 Cr LJ 459 : AIR 1980",
SC 660 .,
"432. Munney Khan, (1970) 2 SCC 480 [LNIND 1970 SC 338] : AIR 1971 SC 1491 [LNIND 1970 SC",
338] .,
"433. State of UP v Nyama, (1987) 3 SCC 434 [LNIND 1987 SC 391] . State of MP v Mishrilal, 2003",
"Cr LJ 2312 (SC) : (2003) 9 SCC 426 [LNIND 2003 SC 390] , the prosecution party and the",
"accused party cause to be engaged in firing against each other. The father, who was one of the",
"accused, received five injuries dangerous to life. The firing accused apprehended danger to the",
life of his father and fired in self-defence. The accused did not exceed the right of private,
defence.,
"434. State of UP v Gajey Singh, 2009 Cr LJ 2274 : (2009) 11 SCC 414 [LNIND 2009 SC 437] :",
(2009) 3 SCC(Cr) 1412.,
"435. R v Thompson, (2001) 1 Cr App R (S) 72 [CA (Crim Div)].",
"436. Gurbachan Singh, 1974 Cr LJ 463 : AIR 1974 SC 496 .",
"437. Baitullah v State of UP, AIR 1997 SC 3946 [LNIND 1997 SC 1322] : 1997 Cr LJ 4644 , Rukma",
"v Jala, AIR 1997 SC 3207 : 1997 Cr LJ 4641 , a case which hanged on appreciation of evidence.",
"Mavila Thamban Nambiar v State of Kerala, AIR 1997 SC 687 [LNIND 1997 SC 24] : (1997) 1 JT",
"367 private defence not available because the deceased was unarmed, accused persons armed",
"with a pair of scissors. Vishal Singh v State of MP, 1998 Cr LJ 505 : AIR 1998 SC 308 [LNIND",
"1997 SC 1362] , land dispute, revenue record not clear, accused in possession were fully armed,",
"others came in wholly unarmed and became the victim of attack, private defence not allowed to",
accused.,
"438. Bihari Rai v State of Bihar, (2008) 15 SCC 778 [LNIND 2008 SC 1927] : AIR 2009 SC 18",
[LNIND 2008 SC 1927] : 2009 Cr LJ 340 .,
"439. Gokool Bowree, (1866) 5 WR (Cr) 33.",
"440. Durwan Geer, (1866) 5 WR (Cr) 73. See Bag, (1902) PR No. 29 of 1902; Mammun, (1916)",
PR No. 35 of 1916.,
"441. Dhununjai Poly, (1870) 14 WR (Cr) 68.",
"442. Marudevi Avva, 1958 Cr LJ 33 .",
"443. See also Madan Mohan Pandey v State of UP, AIR 1991 SC 769 ; 1991 Cr LJ 467 : 1991",
"Supp (2) SCC 603 , where the Supreme Court emphasised that the nature of the weapon and the",
number of shots fired are helpful circumstances in determining excessive use of the right of,
"private defence. Indiscriminate firing here, held right exceeded. For a general study of the",
"subject see, Stanley Meng Heong Yeo, Rethinking Goodfaith in Excessive Private Defence, (1988)",
JILI 443.,
"444. Kanhiyalal v State of Rajasthan, AIR 1989 SC 1515 : 1989 Supp. 2 SCC 263 : 1989 Cr LJ",
1482 : 1989 BBCJ 117 : 1990 SCC (Cr) 168.,
"445. Kishore Shambudatta Mishra v State of Maharashtra, AIR 1989 SC 1173 : 1989 Cr LJ 1149 :",
1989 SCC (Cr) 464.,
"446. Buta Singh v State of Punjab, AIR 1991 SC 1316 [LNIND 1991 SC 177] : 1991 Cr LJ 1464 :",
"(1991) 2 SCC 612 [LNIND 1991 SC 177] . Vidya Saran Sharma v Sudarshan Lal, AIR 1993 SC 2476",
": 1993 Cr LJ 3135 (SC), accused injured by the deceased, apprehending further danger he hit",
"back with a single blow which proved fatal, acquittal on the ground of private defence; Thakarda",
"Hamirji Gajuji v State of Gujarat, 1992 Cr LJ 3966 (Guj).",
"447. Harabailu Kariappa v State of Karnataka, 1996 Cr LJ 321 (Kant). Man Bharan Singh v State",
"of MP, 1996 Cr LJ 2707 (MP) injuries disproportionately severe as against minor injuries, right",
"exceeded, conviction under section 304 Pt. I. Naranjan Singh v Kuldip Singh, 1998 Cr LJ 845 : AIR",
"1998 SC 1490 [LNIND 1997 SC 1574] , the accused was not shown to be present on the spot",
"and, therefore, the question of his exceeding the right of private defence did not arise. Achhaibar",
"Prasad v State, 1997 Cr LJ 2666 : 1997 All LJ 705, the accused attacked and fired at a police",
constable in his bid to arrest him. Right of private defence not available to him.,
"448. Udaikumar Pandharinath Jadhav v State of Maharashtra, (2008) 5 SCC 214 [LNIND 2008 SC",
1007] : AIR 2008 SC 2064 [LNIND 2008 SC 1007] : 2008 Cr LJ 2627 .,
THE INDIAN PENAL CODE,
CHAPTER IV GENERAL EXCEPTIONS,
THIS chapter has been framed in order to obviate the necessity of repeating in every,
penal clause a considerable number of limitations.,
The word 'offence' in this chapter denotes a thing punishable under the Code or under,
any special or local law when it satisfied the conditions laid down in section 40 of the,
Code.,
"The ""general exceptions"" contained in sections 76–106 make an offence a non-offence.",
"The ""general exceptions"" enacted by Indian Penal Code, 1860 (IPC, 1860) are of",
"universal application and for the sake of brevity of expression, instead of repeating in",
"every section that the definition is to be taken subject to the exceptions, the Legislature",
"by section 6 IPC, 1860 enacted that all the definitions must be regarded as subject to",
"the general exceptions. Therefore, general exceptions are part of definition of every",
"offence contained in IPC, 1860, but the burden to prove their existence lied on the",
accused.1.,
The following acts are exempted under the Code from criminal liability:—,
1. Act of a person bound by law to do a certain thing (section 76).,
2. Act of a Judge acting judicially (section 77).,
3. Act done pursuant to an order or a judgment of a Court (section 78).,
"4. Act of a person justified, or believing himself justified, by law (section 79).",
5. Act caused by accident (section 80).,
6. Act likely to cause harm done without criminal intent to prevent other harm,
(section 81).,
7. Act of a child under seven years (section 82).,
"8. Act of a child above seven and under 12 years, but of immature understanding",
(section 83).,
9. Act of a person of unsound mind (section 84).,
10. Act of an intoxicated person (section 85) and partially exempted (section 86).,
11. Act not known to be likely to cause death or grievous hurt done by consent of,
the sufferer (section 87).,
12. Act not intended to cause death done by consent of sufferer (section 88).,
13. Act done in good faith for the benefit of a child or an insane person by or by the,
consent of guardian (section 89).,
14. Act done in good faith for the benefit of a person without consent (section 92).,
15. Communication made in good faith to a person for his benefit (section 93).,
16. Act done under threat of death (section 94).,
17. Act causing slight harm (section 95).,
18. Act done in private defence (sections 96–106).,
"The above exceptions, strictly speaking, come within the following seven categories:—",
"1. Judicial acts (section. 77, 78).",
"2. Mistake of fact (sections 76, 79).",
3. Accident (section 80).,
"4. Absence of criminal intent (sections 81–86, 92–94).",
"5. Consent (sections 87, 90).",
6. Trifling acts (section 95).,
7. Private defence (sections 96–106).,
"Onus of proving exception lies on accused.—When a person is accused of any offence,",
the burden of proving the existence of circumstances bringing the case within any of,
"the general exceptions in the Penal Code, or within any special exception or proviso",
"contained in any other part of the same Code, or in any law defining the offence, is",
"upon him, and the Court shall presume the absence of such circumstances.2.",
Although the law lays down that the onus of proving circumstances which give the,
"benefit of a general exception to an accused person lies on him, and in the absence of",
"evidence the presumption is against the accused, this does not mean that the accused",
"must lead evidence. If it is apparent from the evidence on the record, whether produced",
"by the prosecution or by the defence, that a general exception would apply, then the",
presumption is removed and it is open to the Court to consider whether the evidence,
proves to its satisfaction that the accused comes within the exception.3.,
Applicability of General exceptions during investigation.—In considering that whether,
"accusation made in the complaint makes out a case for commission of offence or not,",
the police while reaching the prima facie satisfaction of suspecting the commission of,
"cognizable offence, cannot ignore the general exception as provided under IPC, 1860",
"as per Chapter IV of IPC, 1860. If on the basis of the allegation made in the complaint,",
"the case is falling in general exceptions, it can be said that the action cannot be termed",
as an offence.4. Investigating officer is bound to investigate and confirm that despite,
"what is contained in the ""General Exceptions""; acts committed by accused shall",
"constitute offence under IPC, 1860. This shall be done, by virtue of section 6 of IPC,",
"1860. In the light of section 6 of IPC, 1860, definition of every offence is to be",
"understood subject to the ""General Exceptions"". Therefore, investigation shall not",
confine merely to the acts committed by a person. Depending on facts and,
"circumstances of each case, many other relevant facts also have to be investigated",
"into, in the light of the provisions contained in ""General Exceptions"". It is only then that",
an investigating officer will be able to confirm whether the act committed by a person,
"is an offence or not, as defined in IPC, 1860 subject to what is contained in ""General",
"Exceptions"". Further, the category of self-defence falling in general exception would fall",
"in a different category than the general exceptions, which are provided in the very",
chapter for exercise of the statutory duty or lawful power either under the mistake of,
law or fact or mistaken belief of law or fact.5.,
Of the Right of Private Defence,
[s 100] When the right of private defence of the body extends to causing death.,
"The right of private defence of the body extends, under the restrictions mentioned in",
"the last preceding section, to the voluntary causing of death or of any other harm to",
"the assailant, if the offence which occasions the exercise of the right be of any of the",
"descriptions hereinafter enumerated, namely:—",
First.—Such an assault as may reasonably cause the apprehension that death will,
otherwise be the consequence of such assault;,
Secondly.—Such an assault as may reasonably cause the apprehension that grievous,
hurt will otherwise be the consequence of such assault;,
Thirdly.—An assault with the intention of committing rape;,
Fourthly.—An assault with the intention of gratifying unnatural lust;,
Fifthly.—An assault with the intention of kidnapping or abducting;,
"Sixthly.—An assault with the intention of wrongfully confining a person, under",
circumstances which may reasonably cause him to apprehend that he will be unable,
to have recourse to the public authorities for his release.,
449.[Seventhly.—An act of throwing or administering acid or an attempt to throw or,
administer acid which may reasonably cause the apprehension that grievous hurt will,
otherwise be the consequence of such act.],
COMMENT.—,
The law authorizes a man who is under a reasonable apprehension that his life is in,
danger or his body in risk of grievous hurt to inflict death upon his assailant either,
"when the assault is attempted or directly threatened, but the apprehension must be",
reasonable and the violence inflicted must not be greater than is reasonably necessary,
for the purpose of self-defence. It must be proportionate to and commensurate with,
the quality and character of the act it is intended to meet and what is done in excess is,
not protected. Where the accused was attacked by three persons and sustained an,
"injury on the forehead, a vital part, he had reasonable apprehension of some hurt to be",
caused to him and had the right of self-defence but had exceeded by causing more,
"harm to his assailants than needed. He was liable under section 304, Part I, and not",
"under section 302.450. Where after receiving nine injuries, two on vital parts, the",
"accused fired one shot from his gun which hit fatally an innocent person, the right of",
private defence extending to cause death was still available to the accused. His,
"conviction under section 304, Part I was set aside.451. Where the complainant's party",
had deliberately gathered near the house of the accused and scolded them and caused,
"injuries to his father, the accused was held justified in exercising the right of private",
defence to defend his father and his conviction under section 300 was set aside.452. It,
is the reasonable apprehension of death or grievous hurt that gives rise to the right of,
"private defence under clauses (1) and (2) of section 100, IPC, 1860., and it has got",
nothing to do with the actual injury that the person exercising the right of private,
"defence has suffered, which may or may not be grievous.453. Where the accused fails",
"to make out a case of reasonable apprehension, he cannot claim the right of private",
defence.454. Where the life of the accused was not endangered by the ladies armed,
"with broom sticks and 'chappals', the accused was not entitled to stab one of the ladies",
to death in exercise of right of private defence.455.,
The extended right of private defence to the extent of causing death of the assailant,
arises only if the offence which occasions the exercise of the right is of one of the,
"kinds mentioned in this section.456. Following some earlier rulings, the Supreme Court",
has re-emphasised that the mere fact of the accused sustaining some injuries in the,
course of the same transaction does not make it out conclusively that the accused had,
the occasion to cause death in private defence.457. Where the attacking party chanced,
to get at the wife of the accused and the latter pounced upon them with a weapon,
"attacking one of them which was warded off, another came forward and the accused",
"successfully struck him and he died, the accused was held to be within his rights.458.",
"As against this where two were fighting with lathis and the brother of one of them, who",
"was outside the danger, struck a lathi blow to the other killing him, he was held to be",
"guilty under section 304-I.459. In a communal tension, both sides pelted stones. The",
accused fired a gun shot causing death of a person of the other group though no one,
had sustained any injury as a result of pelting of stones by the other group. It was held,
that the accused had no occasion to act under the right of private defence.460.,
"In order to justify the act of causing death of assailant, the accused has simply to",
satisfy the Court that there was reasonable apprehension of death or grievous hurt.,
Question whether the apprehension was reasonable or not is a question of fact,
depending upon the facts and circumstances of each case and no straitjacket formula,
"can be prescribed in this regard. Weapon used, the manner and nature of assault and",
other surrounding circumstances should be taken into account while evaluating,
"whether the apprehension was justified or not. In the instant case, accused G was",
assaulted on head by a sharp-edged weapon which caused a bone-deep injury. As per,
the defence version there were four assailants who had come well prepared at the door,
of accused's house to commit assault. Reasonable apprehension of death or at least of,
"grievous hurt, therefore, could not be ruled out. In such a situation, if single gunshot",
was fired it could not be said that the accused persons had exceeded their right of,
private defence in any manner.461.,
[s 100.1] 'Abducting'.—,
"On a plain reading of clause fifth of this section, there does not seem to be any reason",
for holding that the word 'abducting' used in the clause means anything more than,
"what is defined as ""abduction"" in section 362. All that the clause requires is that there",
should be an assault which is an offence against the human body and that assault,
"should be with the intention of abducting, and whenever these elements are present the",
"clause will be applicable.462. Thus, a woman could not be taken away by force even by",
her own husband from a paramour's house and if in these circumstances the paramour,
"and his brother killed the husband to prevent her abduction by the husband, they would",
be protected by sub-clause (5) of section 100 of the Penal Code.463. Here law seems to,
"be contrary to our social conscience, but this interpretation is perfectly in accord with",
"the language of section 100, IPC, 1860, and the decision of the Supreme Court in",
Viswanath's case464. where too the husband was put to death by a clean stab by his,
brother-in-law as he was trying to take away his wife by force from his father-in-law's,
house and in the process had merely dragged his unwilling wife to some distance.,
[s 100.2] Rescuing woman-folk from attack on modesty.—,
The accused heard the cries for help of his widowed sister-in-law. He ran to her house,
with gandasa. He found the attacker grappling with her and trying to outrage her,
modesty. The accused saved her from his clutches and inflicted a gandasa blow while,
he was going to run away. The act of the accused was held to have been done in the,
exercise of the right of private defence. The accused was acquitted.465.,
[s 100.3] CASES.—Exceeding the right.—,
The accused was being chased. He assaulted the chaser. The latter died. The injuries,
found on the person of the deceased were more grievous than those on the body of the,
accused. It was held that the accused exceeded his right of private defence his,
"conviction was altered from under section 300 to one under section 304, Part I.466.",
Whenever accused-party sustains injuries in the same occurrence and when the,
injuries are grievous in nature it is incumbent upon the prosecution to explain the,
injuries on the person of the accused.467. Where the accused might have acted on self-,
"defence in the beginning, but once the deceased was. The prosecution party consisted",
of four members. They carried blunt weapons. They assembled in front of the house of,
the accused. They came as aggressors. The accused suffered a bone deep injury on,
his head. The accused fired a single gunshot which caused death of one of the,
members on the prosecution side. The Court held that the right of private defence was,
not exceeded. The accused was given the benefit of doubt.468.,
Where the victim was throwing broken bricks at the accused who received simple,
"injuries and the accused fired at him with his gun, it was held that he exceeded the right",
of private defence. There was no justification for using the gun in such as to cause,
death. Conviction under section 304 Part I was restored.469. The right of private,
defence was not allowed to be claimed merely on the ground that there was a quarrel,
and the accused sustained injuries in the course of it.470.,
[s 100.4] No danger.—,
Two friends were sitting together and consuming liquor. They quarrelled and,
exchanged blows. One of them inflicted two knife wounds on vital parts of the body of,
"the other. The victim had posed no danger to the attacker, nor did he have any weapons",
with him. The plea of self-defence was held to be not available. The accused was,
convicted for murder.471. The deceased came to his land and asked the accused party,
to get the land measured and also tried to dislodge a pole fixed by them. There was no,
imminent danger to person on property from any act of the deceased. No injuries,
caused to anybody. It was held that there was no right of self-defence in the exercise of,
which the deceased could have been killed.472.,
[s 100.5] Private defence.—,
The accused was without any arms when the quarrel started. His action of picking up a,
stick lying on the ground and hitting the deceased on his head with it showed that he,
was trying to save himself from the attack by the deceased and his son. The accused,
was acquitted because the circumstances made it obvious that he was acting in self-,
defence.473.,
[s 100.6] Burden of proof.—,
The right of private defence is a plea which is available to the accused by the burden of,
proving the same is on him.474. Proof by preponderance of probabilities is,
sufficient.475. The burden of proving the right of private defence is not as onerous as,
that of the prosecution to prove its case. Preponderance of probabilities in favour of,
the defence is enough to discharge the burden.476. While the prosecution is required to,
"prove its case beyond reasonable doubt, the accused need not establish his plea of",
self-defence to the hilt and may discharge onus by showing preponderance of,
"probabilities in favour of that plea on basis of material on record, injuries received by an",
"accused, imminence of threat to his safety, injuries caused by accused and",
circumstances whether accused had time to have recourse to public authorities were,
held to relevant factors. But number of injuries is not always considered to be a safe,
criterion for determining who the aggressor was. Whenever injuries are on the body of,
"the accused person, presumption need not necessarily be raised that accused person",
had caused injuries in his defence. Defence has to further to show that injuries so,
caused on accused probabilise version of private defence. Non-explanation of injuries,
sustained by the accused at about the time of occurrence or in course of the,
altercation is a very important circumstance but mere non-explanation may not affect,
prosecution case in all cases.477.,
The burden stands discharged by showing preponderance of probabilities in favour of,
the plea of the accused either by himself adducing positive evidence or by referring to,
circumstances transpiring from prosecution evidence itself. Proof beyond reasonable,
doubt is not required. The Court can consider the plea even if not taken by the accused,
if the material on record makes it available for consideration.478.,
[s 100.7] Acid Attack (Clause 7).—,
"The right of private defence of the body extends, under the restrictions mentioned in",
"section 99, to the voluntary causing of death or of any other harm to the assailant if the",
offence which occasions the exercise of the right against an act of throwing or,
administering acid or an attempt to throw or administer acid which may reasonably,
cause the apprehension that grievous hurt will otherwise be the consequence of such,
act. This new category of offence (acid attacks) to which a right to private defence is,
"inserted by the Criminal Law (Amendment) Act, 2013479. on the recommendation of",
Justice Verma Committee.,
"1. Shankar Narayan Bhadolkar v State of Maharashtra, AIR 2004 SC 1966 [LNIND 2004 SC 1370] :",
2004 Cr LJ 1778 : (2005) 9 SCC 71 [LNIND 2004 SC 1370] .,
"2. The Indian Evidence Act, I of 1872, section 105.",
"3. Musammat Anandi, (1923) 45 All 329 ; Babulal, 1960 Cr LJ 437 (All).",
"4. A K Chaudhary v State of Gujarat, 2006 Cr LJ 726 (Guj).",
"5. A K Chaudhary v State of Gujarat, 2006 Cr LJ 726 (Guj).",
"449. Ins. by Act 13 of 2013, section 2 (w.r.e.f. 3-2-2013).",
"450. Scaria v State of Kerala, AIR 1995 SC 2342 : 1995 Cr LJ 3990 .",
"451. Wassan Singh v State of Punjab, 1996 Cr LJ 878 : (1996) 1 SCC 458 [LNIND 1995 SC 1195] ;",
"Ghurey Lal v State of UP, (2008) 10 SCC 450 [LNIND 2008 SC 1535] ; Dattu Shamrao Valake v",
"State of Maharashtra, 2005 Cr LJ 2555 : AIR 2005 SC 2331 [LNIND 2005 SC 383] : (2005) 11 SCC",
261 [LNIND 2005 SC 383] .,
"452. Shive Chand v State of UP, 1995 Cr LJ 3869 (All).",
"453. Raja Ram, 1977 Cr LJ NOC 85 (All); See also Abdul Kadir v State of Assam, 1985 Cr LJ 1898",
: AIR 1986 SC 305 : 1985 Supp SCC 603 .,
"454. Vishvas v State, 1978 Cr LJ 484 : AIR 1978 SC 414 [LNIND 1978 SC 17] . Where there is no",
"right of private defence, e.g. causing death of a person in order to prevent him from exercising",
"lawful rights on lawfully held land, it would be punishable as murder, Asha Ram v State of",
"Rajasthan, (1994) 2 Cr LJ 2431 (Raj).",
"455. Vishnu Narayan Moger v State of Karnataka, 1996 Cr LJ 1121 (Kant). Right of self-defence",
"not available where the accused came prepared for fight and attack on unarmed victim, Baj",
"Singh v State of Punjab, AIR 1995 SC 1953 : 1995 Cr LJ 3605 .",
"456. Ram Saiya, (1948) All 165 . See also Kishore Shambudatta Mishra v State of Maharashtra,",
"AIR 1989 SC 1173 : 1989 Cr LJ 1149 : 1989 Supp (1) SCC 399 , discussed under the preceding",
"section. Also Raza Pasha v State of Maharashtra, AIR 1984 SC 1793 [LNIND 1984 SC 255] :",
"(1984) 4 SCC 441 [LNIND 1984 SC 255] : 1984 SCC (Cr) 605, the person shot at from house top",
"and killed was outside the house at that time, held that there was no occasion for private",
"defence, conviction under section 302. Wassan Singh vState of Punjab, (1996) 1 SCC 458 [LNIND",
"1995 SC 1195] : 1996 Cr LJ 878 , the accused surrounded by a number of assailants who were",
"all inflicting injuries on him, he shot at them hitting an innocent person who died, right of private",
defence not lost thereby.,
"457. Paras Nath Singh v State of Bihar and Hare Krishna Singh v State of Bihar, 1988 Cr LJ 925 :",
"AIR 1988 SC 863 [LNIND 1988 SC 139] : (1988) 2 SCC 95 [LNIND 1988 SC 139] , relying on",
"Onkar Nath Singh v State of UP, AIR 1974 SC 1550 [LNIND 1974 SC 154] : 1974 Cr LJ 1015 :",
(1975) 3 SCC 276 [LNIND 1974 SC 154] : 1975 SCC (Cr) 884. But injuries suffered by the,
accused must be explained to be not caused in the same episode and if the information as to,
"injuries on the accused is suppressed by the prosecution, the case becomes doubtful. Prem",
"Singh v State of HP, 1989 Cr LJ 1903 HP. Dispute over turn for irrigation, both sides injured, the",
"fact of injuries on the accused suppressed and FIR also filed after delay, acquittal, Desa Singh v",
"Punjab, 1996 Cr LJ 3381 (P&H). Another similar dispute and death in mutual fight, State of",
"Haryana v Karan Singh, 1996 Cr LJ 3698 (P&H).",
"458. Purna Chandra Barik v State of Orissa, 1988 Cr LJ 731 Orissa. Where the finding of the High",
"Court was that the accused, a police sub-inspector, was assaulted by the deceased and his",
companions and he used firearms causing death under the apprehension that otherwise he,
"would be killed, this finding was held by the Supreme Court to be neither perverse nor palpably",
"erroneous, State of Punjab v Ajaib Singh, AIR 1995 SC 975 [LNIND 1995 SC 136] : (1995) 2 Cr LJ",
1456 : (1995) 2 SCC 486 [LNIND 1995 SC 136] . Warding off two successive attacks by the,
"complainant party, clause 'firstly' and 'secondly' were held to be attracted, Raj Singh v State of",
"Punjab, (1995) 1 Cr LJ 680 P&H.",
"459. Sudhir Mahanta v State of Orissa, 1980 Cr LJ 1918 Orissa. Kesha v State of Rajasthan, AIR",
"1993 SC 2651 : 1993 Cr LJ 3674 : 1995 Supp (3) SCC 743 , accused causing death without any",
"reasonable apprehension of death or grievous hurt to himself, punishment for exceeding the",
"right of private defence. Baijnath Mahton v State of Bihar, 1993 Cr LJ 2833 : AIR 1993 SC 2323 :",
"1993 Supp (3) SCC 1 , right of private defence exceeded in a group clash. Dular Mahto v State of",
"Bihar, AIR 1993 SC 927 : 1993 Cr LJ 165 : 1993 Supp (3) SCC 467 , excesses in a group clash.",
"Babu Ram v State of Haryana, 1993 Cr LJ 3788 (P&H), the case is of doubtful validity because",
aggressors were given the benefit of the right of private defence.,
"460. Parshottam Lal Ji Waghela v State of Gujarat, 1992 Cr LJ 2521 : 1992 Supp (3) SCC 194 . In",
"a direct confrontation, there was the possibility of the accused becoming apprehensive of",
"danger to himself and his family, he fired only one round, plea of private defence sustained,",
"Harish Kumar v MP, 1996 Cr LJ 3511 : AIR 1996 SC 3433 [LNIND 1996 SC 1027] .",
"461. State of UP v Gajey Singh, (2009) 11 SCC 414 [LNIND 2009 SC 437] : 2009 Cr LJ 2274 :",
(2009) 3 All LJ 647.,
"462. Vishwanath v State of UP, 1960 Cr LJ 154 , (1960) 1 SCR 646 [LNIND 1959 SC 150] : AIR",
1960 SC 67 [LNIND 1959 SC 150] .,
"463. Nankau v State, 1977 Cr LJ NOC 116 (All).",
"464. Vishwanath, supra.",
"465. Bhadar Ram v State of Rajasthan, 2000 Cr LJ 1174 (Raj). Badan Nath v State of Rajasthan,",
"1999 Cr LJ 2268 (Raj), causing injury to save daughter from being raped.",
"466. Suresh Singh v State of Haryana, AIR 1999 SC 1773 [LNIND 1999 SC 324] : 1999 Cr LJ 2585",
"; Shankar Balu Patil v State of Maharashtra, (2007) 12 SCC 450 : (2008) 2 SCC (Cr) 591, the",
nature of injuries upon the accused and those upon the deceased clearly showed that the,
accused exceeded the right of private defence. Conviction under section 304 Pt. I and seven,
years imprisonment justified.,
"467. Manphool Singh v State of Haryana, AIR 2018 SC 3995 .",
"468. Gajey Singh v State of UP, 2001 Cr LJ 2838 (All); State of UP v Laeeq, 1999 Cr LJ 2877 at p",
"2879 : AIR 1999 SC 1742 [LNIND 1999 SC 476] , no allegation of any fear, no right of private",
"defence. Ram Dhani v State, 1997 Cr LJ 2286 (All), the accused exceeded the right of private",
defence in causing death in circumstances in which justification for causing death was not,
available to him.,
"469. Shingara Singh v State of Haryana, (2003) 12 SCC 758 [LNIND 2003 SC 945] : AIR 2004 SC",
"124 [LNIND 2003 SC 945] : 2004 Cr LJ 828 . Anil Kumar v State of UP, 2004 All LJ 3779 : 2005",
"SCC (Cr) 178, the accused receiving minor injuries fired at the deceased to cause death, private",
defence exceeded.,
"470. Chacko v State of Kerala, (2004) 12 SCC 269 [LNIND 2004 SC 86] : AIR 2004 SC 2688",
[LNIND 2004 SC 86] : (2004) 1 KLT 884 [LNIND 2004 SC 86] .,
"471. Inacio Manual Miranda v State of Goa, 1999 Cr LJ 422 (Bom); State of MP v Ramesh, 2005",
Cr LJ 652 SC : AIR 2006 SC 204 [LNIND 2005 SC 881] : (2005) 13 SCC 247 [LNIND 2005 SC 881],
", the plea of private defence cannot be based on surmises and conjectures, and guess work.",
"Father asked his son to get his gun and shoot because they were irresponsive, death and",
"injuries caused, conviction for murder because there was no danger which could create the right",
of private offence.,
"472. Dhaneswar Mahakud v State of Orissa, 2006 Cr LJ 2113 SC : AIR 2006 SC 1727 [LNIND",
2006 SC 252] : (2006) 9 SCC 307 [LNIND 2006 SC 252] .,
"473. Krishanan v State of TN, 2006 Cr LJ 3907 : AIR 2006 SC 3037 [LNIND 2006 SC 612] : (2006)",
11 SCC 304 [LNIND 2006 SC 612] .,
"474. Kishan Chand v State of UP, (2007) 14 SCC 737 [LNIND 2007 SC 1190] : AIR 2008 SC 133",
[LNIND 2007 SC 1190] : (2007) 6 All LJ 658.,
"475. V Subramani v State of TN, 2005 Cr LJ 1727 : AIR 2005 SC 1983 [LNIND 2005 SC 224] :",
(2005) 10 SCC 358 [LNIND 2005 SC 224] .,
"476. Dharminder v State of HP, AIR 2002 SC 3097 [LNIND 2002 SC 537] .",
"477. Dharam v State of Haryana, (2007) 15 SCC 241 [LNIND 2006 SC 1108] . Raghbir Singh v",
"State of Haryana, (2008) 16 SCC 33 [LNIND 2008 SC 2228] : AIR 2009 SC 1223 [LNIND 2008 SC",
"2228] : (2009) 73 AIC 93 , right of private defence not made out on facts.",
"478. James Martin v State of Kerala, (2004) 2 SCC 203 [LNIND 2003 SC 1097] , Laxman Singh v",
"Poonam Singh, (2004) 10 SCC 94 [LNIND 2003 SC 767] : AIR 2003 SC 3204 [LNIND 2003 SC 767]",
", Kulwant Singh v State of Punjab, (2004) 9 SCC 257 [LNIND 2004 SC 105] : AIR 2004 SC 2875",
"[LNIND 2004 SC 105] , right of private defence could not be proved. Bagdi Ram v State of MP,",
(2004) 12 SCC 302 [LNIND 2003 SC 1047] : AIR 2004 SC 387 [LNIND 2003 SC 1047] : 2004 Cr LJ,
"632 , no right of private defence to use dangerous arms when the other side was absolutely",
unarmed.,
"479. Act 13 of 2013, section 2 (w.e.f. 3-2-2013).",
THE INDIAN PENAL CODE,
CHAPTER IV GENERAL EXCEPTIONS,
THIS chapter has been framed in order to obviate the necessity of repeating in every,
penal clause a considerable number of limitations.,
The word 'offence' in this chapter denotes a thing punishable under the Code or under,
any special or local law when it satisfied the conditions laid down in section 40 of the,
Code.,
"The ""general exceptions"" contained in sections 76–106 make an offence a non-offence.",
"The ""general exceptions"" enacted by Indian Penal Code, 1860 (IPC, 1860) are of",
"universal application and for the sake of brevity of expression, instead of repeating in",
"every section that the definition is to be taken subject to the exceptions, the Legislature",
"by section 6 IPC, 1860 enacted that all the definitions must be regarded as subject to",
"the general exceptions. Therefore, general exceptions are part of definition of every",
"offence contained in IPC, 1860, but the burden to prove their existence lied on the",
accused.1.,
The following acts are exempted under the Code from criminal liability:—,
1. Act of a person bound by law to do a certain thing (section 76).,
2. Act of a Judge acting judicially (section 77).,
3. Act done pursuant to an order or a judgment of a Court (section 78).,
"4. Act of a person justified, or believing himself justified, by law (section 79).",
5. Act caused by accident (section 80).,
6. Act likely to cause harm done without criminal intent to prevent other harm,
(section 81).,
7. Act of a child under seven years (section 82).,
"8. Act of a child above seven and under 12 years, but of immature understanding",
(section 83).,
9. Act of a person of unsound mind (section 84).,
10. Act of an intoxicated person (section 85) and partially exempted (section 86).,
11. Act not known to be likely to cause death or grievous hurt done by consent of,
the sufferer (section 87).,
12. Act not intended to cause death done by consent of sufferer (section 88).,
13. Act done in good faith for the benefit of a child or an insane person by or by the,
consent of guardian (section 89).,
14. Act done in good faith for the benefit of a person without consent (section 92).,
15. Communication made in good faith to a person for his benefit (section 93).,
16. Act done under threat of death (section 94).,
17. Act causing slight harm (section 95).,
18. Act done in private defence (sections 96–106).,
"The above exceptions, strictly speaking, come within the following seven categories:—",
"1. Judicial acts (section. 77, 78).",
"2. Mistake of fact (sections 76, 79).",
3. Accident (section 80).,
"4. Absence of criminal intent (sections 81–86, 92–94).",
"5. Consent (sections 87, 90).",
6. Trifling acts (section 95).,
7. Private defence (sections 96–106).,
"Onus of proving exception lies on accused.—When a person is accused of any offence,",
the burden of proving the existence of circumstances bringing the case within any of,
"the general exceptions in the Penal Code, or within any special exception or proviso",
"contained in any other part of the same Code, or in any law defining the offence, is",
"upon him, and the Court shall presume the absence of such circumstances.2.",
Although the law lays down that the onus of proving circumstances which give the,
"benefit of a general exception to an accused person lies on him, and in the absence of",
"evidence the presumption is against the accused, this does not mean that the accused",
"must lead evidence. If it is apparent from the evidence on the record, whether produced",
"by the prosecution or by the defence, that a general exception would apply, then the",
presumption is removed and it is open to the Court to consider whether the evidence,
proves to its satisfaction that the accused comes within the exception.3.,
Applicability of General exceptions during investigation.—In considering that whether,
"accusation made in the complaint makes out a case for commission of offence or not,",
the police while reaching the prima facie satisfaction of suspecting the commission of,
"cognizable offence, cannot ignore the general exception as provided under IPC, 1860",
"as per Chapter IV of IPC, 1860. If on the basis of the allegation made in the complaint,",
"the case is falling in general exceptions, it can be said that the action cannot be termed",
as an offence.4. Investigating officer is bound to investigate and confirm that despite,
"what is contained in the ""General Exceptions""; acts committed by accused shall",
"constitute offence under IPC, 1860. This shall be done, by virtue of section 6 of IPC,",
"1860. In the light of section 6 of IPC, 1860, definition of every offence is to be",
"understood subject to the ""General Exceptions"". Therefore, investigation shall not",
confine merely to the acts committed by a person. Depending on facts and,
"circumstances of each case, many other relevant facts also have to be investigated",
"into, in the light of the provisions contained in ""General Exceptions"". It is only then that",
an investigating officer will be able to confirm whether the act committed by a person,
"is an offence or not, as defined in IPC, 1860 subject to what is contained in ""General",
"Exceptions"". Further, the category of self-defence falling in general exception would fall",
"in a different category than the general exceptions, which are provided in the very",
chapter for exercise of the statutory duty or lawful power either under the mistake of,
law or fact or mistaken belief of law or fact.5.,
Of the Right of Private Defence,
[s 101] When such right extends to causing any harm other than death.,
If the offence be not of any of the descriptions enumerated in the last preceding,
"section, the right of private defence of the body does not extend to the voluntary",
"causing of death to the assailant, but does extend, under the restrictions mentioned in",
"section 99, to the voluntary causing to the assailant of any harm other than death.",
COMMENT.—,
Any harm short of death can be inflicted in exercising the right of private defence in any,
"case which does not fall within the provisions of section 100. Thus, where only some",
mischief was caused to the factory and some brickbats were thrown by agitating,
"workers, the owner of the factory was not justified in killing a worker by firing a shot",
"from his revolver. As there was no apprehension of death or grievous hurt to his person,",
the accused could not get the benefit of clauses (1) and (2) of section 100 or section,
"103, IPC, 1860. He had only a limited right of private defence to cause any other harm",
"than death within the meaning of section 101, IPC, 1860, and as such having exercised",
"his right of private defence he was liable to be convicted under section 304-Part I, IPC,",
1860.480. The accused was hit by a single brickbat or a stone piece and suffered a,
simple head-injury. After sometime he fired at the unarmed assailant causing grievous,
injury to his abdomen. The Supreme Court held that keeping in mind his simple hurt,
"and the time gap between that and the gunshot wound caused by him, his action was a",
retaliation rather than act of private defence. His conviction under section 326 was,
accordingly upheld.481. The right of private defence was held to have been exceeded,
where a member of the opposite side was killed after snatching his pistol.482. The,
person who died came along with his brothers to stage a fight with the accused,
because of an earlier act of insult on the part of the accused. A single stab wound was,
"administered to him, which fell upon his lower abdomen, of which he died. The accused",
and his wife were also injured in the process. It was held that the accused had not,
exceeded his right of private defence.483.,
When dealing with questions relating to right of private defence of the body this section,
and section 100 should be read together.,
"1. Shankar Narayan Bhadolkar v State of Maharashtra, AIR 2004 SC 1966 [LNIND 2004 SC 1370] :",
2004 Cr LJ 1778 : (2005) 9 SCC 71 [LNIND 2004 SC 1370] .,
"2. The Indian Evidence Act, I of 1872, section 105.",
"3. Musammat Anandi, (1923) 45 All 329 ; Babulal, 1960 Cr LJ 437 (All).",
"4. A K Chaudhary v State of Gujarat, 2006 Cr LJ 726 (Guj).",
"5. A K Chaudhary v State of Gujarat, 2006 Cr LJ 726 (Guj).",
"480. Mahinder Paul v State, 1979 Cr LJ 584 : AIR 1979 SC 577 [LNIND 1978 SC 389] ; See also",
"Yogendra Morarij, 1980 Cr LJ 459 : AIR 1980 SC 660 .",
"481. State of J&K v Hazara Singh, 1980 Cr LJ 1501 : 1981 SCC (Cr) 537 : AIR 1981 SC 451 .",
"482. Ghunnu v State of UP, 1980 Cr LJ (NOC) 15 : AIR 1980 SC 864 : 1980 All LJ 397 : 1979 SCC",
"(Cr) 438. See also Chuhar Singh v State of Punjab, AIR 1991 SC 1052 : 1991 Supp (2) SCC 455 :",
"1991 SCC (Cr) 1066, where the circumstances did not justify causing death by gun shot injuries.",
"Bandlamuddi Atchuta Ramaiah v State of AP, AIR 1997 SC 496 : 1996 Cr LJ 4463 death of",
neighbour caused at a time when there was no apprehension of loss of life or property. Right,
exceeded. Conviction under section 304 Part I.,
"483. Ramchandran v State, 1994 Cr LJ 2741 (Mad); Sri Kumar Sharma v State of Bihar, 2003 Cr",
"LJ 2258 (Pat), right of private defence found justified, hence, acquittal.",
THE INDIAN PENAL CODE,
CHAPTER IV GENERAL EXCEPTIONS,
THIS chapter has been framed in order to obviate the necessity of repeating in every,
penal clause a considerable number of limitations.,
The word 'offence' in this chapter denotes a thing punishable under the Code or under,
any special or local law when it satisfied the conditions laid down in section 40 of the,
Code.,
"The ""general exceptions"" contained in sections 76–106 make an offence a non-offence.",
"The ""general exceptions"" enacted by Indian Penal Code, 1860 (IPC, 1860) are of",
"universal application and for the sake of brevity of expression, instead of repeating in",
"every section that the definition is to be taken subject to the exceptions, the Legislature",
"by section 6 IPC, 1860 enacted that all the definitions must be regarded as subject to",
"the general exceptions. Therefore, general exceptions are part of definition of every",
"offence contained in IPC, 1860, but the burden to prove their existence lied on the",
accused.1.,
The following acts are exempted under the Code from criminal liability:—,
1. Act of a person bound by law to do a certain thing (section 76).,
2. Act of a Judge acting judicially (section 77).,
3. Act done pursuant to an order or a judgment of a Court (section 78).,
"4. Act of a person justified, or believing himself justified, by law (section 79).",
5. Act caused by accident (section 80).,
6. Act likely to cause harm done without criminal intent to prevent other harm,
(section 81).,
7. Act of a child under seven years (section 82).,
"8. Act of a child above seven and under 12 years, but of immature understanding",
(section 83).,
9. Act of a person of unsound mind (section 84).,
10. Act of an intoxicated person (section 85) and partially exempted (section 86).,
11. Act not known to be likely to cause death or grievous hurt done by consent of,
the sufferer (section 87).,
12. Act not intended to cause death done by consent of sufferer (section 88).,
13. Act done in good faith for the benefit of a child or an insane person by or by the,
consent of guardian (section 89).,
14. Act done in good faith for the benefit of a person without consent (section 92).,
15. Communication made in good faith to a person for his benefit (section 93).,
16. Act done under threat of death (section 94).,
17. Act causing slight harm (section 95).,
18. Act done in private defence (sections 96–106).,
"The above exceptions, strictly speaking, come within the following seven categories:—",
"1. Judicial acts (section. 77, 78).",
"2. Mistake of fact (sections 76, 79).",
3. Accident (section 80).,
"4. Absence of criminal intent (sections 81–86, 92–94).",
"5. Consent (sections 87, 90).",
6. Trifling acts (section 95).,
7. Private defence (sections 96–106).,
"Onus of proving exception lies on accused.—When a person is accused of any offence,",
the burden of proving the existence of circumstances bringing the case within any of,
"the general exceptions in the Penal Code, or within any special exception or proviso",
"contained in any other part of the same Code, or in any law defining the offence, is",
"upon him, and the Court shall presume the absence of such circumstances.2.",
Although the law lays down that the onus of proving circumstances which give the,
"benefit of a general exception to an accused person lies on him, and in the absence of",
"evidence the presumption is against the accused, this does not mean that the accused",
"must lead evidence. If it is apparent from the evidence on the record, whether produced",
"by the prosecution or by the defence, that a general exception would apply, then the",
presumption is removed and it is open to the Court to consider whether the evidence,
proves to its satisfaction that the accused comes within the exception.3.,
Applicability of General exceptions during investigation.—In considering that whether,
"accusation made in the complaint makes out a case for commission of offence or not,",
the police while reaching the prima facie satisfaction of suspecting the commission of,
"cognizable offence, cannot ignore the general exception as provided under IPC, 1860",
"as per Chapter IV of IPC, 1860. If on the basis of the allegation made in the complaint,",
"the case is falling in general exceptions, it can be said that the action cannot be termed",
as an offence.4. Investigating officer is bound to investigate and confirm that despite,
"what is contained in the ""General Exceptions""; acts committed by accused shall",
"constitute offence under IPC, 1860. This shall be done, by virtue of section 6 of IPC,",
"1860. In the light of section 6 of IPC, 1860, definition of every offence is to be",
"understood subject to the ""General Exceptions"". Therefore, investigation shall not",
confine merely to the acts committed by a person. Depending on facts and,
"circumstances of each case, many other relevant facts also have to be investigated",
"into, in the light of the provisions contained in ""General Exceptions"". It is only then that",
an investigating officer will be able to confirm whether the act committed by a person,
"is an offence or not, as defined in IPC, 1860 subject to what is contained in ""General",
"Exceptions"". Further, the category of self-defence falling in general exception would fall",
"in a different category than the general exceptions, which are provided in the very",
chapter for exercise of the statutory duty or lawful power either under the mistake of,
law or fact or mistaken belief of law or fact.5.,
Of the Right of Private Defence,
[s 102] Commencement and continuance of the right of private defence of the,
body.,
The right of private defence of the body commences as soon as a reasonable,
apprehension of danger to the body arises from an attempt or threat to commit the,
offence though the offence may not have been committed; and it continues as long as,
such apprehension of danger to the body continues.,
COMMENT.—,
This section indicates when the right of private defence of the body commences and,
till what time it continues. The right commences as soon as a reasonable apprehension,
"of danger to the body arises from an attempt, or threat, or commit the offence,",
"although the offence may not have been committed, but not until that there is that",
reasonable apprehension. The right lasts so long as the reasonable apprehension of,
the danger to the body continues.484. It commences and continues as long as danger,
to body lasts. The extent to which the exercise of the right will be justified will depend,
not on the actual danger but on whether there was reasonable apprehension of such,
danger. There must be an attempt or threat and consequent thereon an apprehension,
"of danger; but it is not a mere idle threat, or every apprehension of a rash or timid mind,",
that will justify the exercise of the right. Reasonable ground for the apprehension is,
requisite. Suppose the threat to proceed from a woman or child and to be addressed to,
"a strong man, in such a case there could hardly be a reasonable apprehension. Present",
and imminent danger seems to be meant.485. The person exercising a right of private,
defence must consider whether the threat to his person or his property is real and,
immediate. If he reaches the conclusion reasonably that the threat is immediate and,
"real, he is entitled to exercise his right. In the exercise of his right, he must use force",
necessary for the purpose and he must stop using the force as soon as the threat has,
disappeared. So long as the threat lasts and the right of private defence can be,
"legitimately exercised; if the danger is continuing, the right is there; if the danger or the",
apprehension about it has ceased to exist there is no longer the right of private,
"defence.486. Right commences, as soon as a reasonable apprehension of danger to the",
"body arises from an attempt, or threat, or commit the offence, although the offence",
may not have been committed but not until that there is that reasonable apprehension.,
The right lasts so long as the reasonable apprehension of the danger to the body,
continues.487. There is no right to inflict punishment on the wrong-doer for his past act,
after the apprehension has ceased to exist. The right of defence ends with the,
"necessity for it. So where the deceased was fleeing for his life, there was no",
justification to shoot him down. This would be a sheer case of murder and nothing,
else.488. Where the testimony of the independent witness showed that the accused,
chased one of the deceased who fled away from the scene of occurrence and killed,
"him, they could not be said to have right of private defence as regards the killing of",
such deceased.489. Though the nature of apprehension depends upon the nature of,
"weapon intended to be used or used, it cannot be said that as the complainant's party",
"had only used lathis, the accused was not justified in using his spear especially when a",
blow with a lathi was aimed at a vulnerable part like the head.490.,
"1. Shankar Narayan Bhadolkar v State of Maharashtra, AIR 2004 SC 1966 [LNIND 2004 SC 1370] :",
2004 Cr LJ 1778 : (2005) 9 SCC 71 [LNIND 2004 SC 1370] .,
"2. The Indian Evidence Act, I of 1872, section 105.",
"3. Musammat Anandi, (1923) 45 All 329 ; Babulal, 1960 Cr LJ 437 (All).",
"4. A K Chaudhary v State of Gujarat, 2006 Cr LJ 726 (Guj).",
"5. A K Chaudhary v State of Gujarat, 2006 Cr LJ 726 (Guj).",
"484. Sekar v State, AIR 2002 SC 3667 [LNIND 2002 SC 628] : (2002) 8 SCC 354 [LNIND 2002 SC",
628] .,
"485. M&M 78; James Martin v State of Kerala, (2004) 2 SCC 203 [LNIND 2003 SC 1097] : (2004)",
"1 KLT 513 [LNIND 2003 SC 1097] , explanation of the starting point of the right and its end point.",
"486. Jai Dev v State of Punjab, 1963 (1) Cr LJ 495 : AIR 1963 SC 612 [LNIND 1962 SC 249] .",
"487. Laxman Singh v Poonam Singh, AIR 2003 SC 3204 [LNIND 2003 SC 767] : (2004) 10 SCC 94",
"[LNIND 2003 SC 767] ; Bishna v State of WB, AIR 2006 SC 302 [LNIND 2005 SC 873] : (2005) 12",
"SCC 657 [LNIND 2005 SC 873] ; Babulal Bhagwan Khandare v State of Maharashtra, AIR 2005 SC",
1460 [LNIND 2004 SC 1203] : (2005) 10 SCC 404 [LNIND 2004 SC 1203] .,
"488. State of UP v Ramswarup, 1974 Cr LJ 1035 : AIR 1974 SC 1570 [LNIND 1974 SC 472] ;",
"Onkarnath, 1974 Cr LJ 1015 : AIR 1974 SC 1550 [LNIND 1974 SC 154] .",
"489. State of UP v Roop Singh, AIR 1996 SC 215 : 1996 Cr LJ 410 .",
"490. Deo Narain, 1973 Cr LJ 677 : AIR 1973 SC 473 [LNIND 1972 SC 572] . See also Sarejerac",
"Sahadeo Gaikwad v State, 1997 Cr LJ 3839 (Bom).",
THE INDIAN PENAL CODE,
CHAPTER IV GENERAL EXCEPTIONS,
THIS chapter has been framed in order to obviate the necessity of repeating in every,
penal clause a considerable number of limitations.,
The word 'offence' in this chapter denotes a thing punishable under the Code or under,
any special or local law when it satisfied the conditions laid down in section 40 of the,
Code.,
"The ""general exceptions"" contained in sections 76–106 make an offence a non-offence.",
"The ""general exceptions"" enacted by Indian Penal Code, 1860 (IPC, 1860) are of",
"universal application and for the sake of brevity of expression, instead of repeating in",
"every section that the definition is to be taken subject to the exceptions, the Legislature",
"by section 6 IPC, 1860 enacted that all the definitions must be regarded as subject to",
"the general exceptions. Therefore, general exceptions are part of definition of every",
"offence contained in IPC, 1860, but the burden to prove their existence lied on the",
accused.1.,
The following acts are exempted under the Code from criminal liability:—,
1. Act of a person bound by law to do a certain thing (section 76).,
2. Act of a Judge acting judicially (section 77).,
3. Act done pursuant to an order or a judgment of a Court (section 78).,
"4. Act of a person justified, or believing himself justified, by law (section 79).",
5. Act caused by accident (section 80).,
6. Act likely to cause harm done without criminal intent to prevent other harm,
(section 81).,
7. Act of a child under seven years (section 82).,
"8. Act of a child above seven and under 12 years, but of immature understanding",
(section 83).,
9. Act of a person of unsound mind (section 84).,
10. Act of an intoxicated person (section 85) and partially exempted (section 86).,
11. Act not known to be likely to cause death or grievous hurt done by consent of,
the sufferer (section 87).,
12. Act not intended to cause death done by consent of sufferer (section 88).,
13. Act done in good faith for the benefit of a child or an insane person by or by the,
consent of guardian (section 89).,
14. Act done in good faith for the benefit of a person without consent (section 92).,
15. Communication made in good faith to a person for his benefit (section 93).,
16. Act done under threat of death (section 94).,
17. Act causing slight harm (section 95).,
18. Act done in private defence (sections 96–106).,
"The above exceptions, strictly speaking, come within the following seven categories:—",
"1. Judicial acts (section. 77, 78).",
"2. Mistake of fact (sections 76, 79).",
3. Accident (section 80).,
"4. Absence of criminal intent (sections 81–86, 92–94).",
"5. Consent (sections 87, 90).",
6. Trifling acts (section 95).,
7. Private defence (sections 96–106).,
"Onus of proving exception lies on accused.—When a person is accused of any offence,",
the burden of proving the existence of circumstances bringing the case within any of,
"the general exceptions in the Penal Code, or within any special exception or proviso",
"contained in any other part of the same Code, or in any law defining the offence, is",
"upon him, and the Court shall presume the absence of such circumstances.2.",
Although the law lays down that the onus of proving circumstances which give the,
"benefit of a general exception to an accused person lies on him, and in the absence of",
"evidence the presumption is against the accused, this does not mean that the accused",
"must lead evidence. If it is apparent from the evidence on the record, whether produced",
"by the prosecution or by the defence, that a general exception would apply, then the",
presumption is removed and it is open to the Court to consider whether the evidence,
proves to its satisfaction that the accused comes within the exception.3.,
Applicability of General exceptions during investigation.—In considering that whether,
"accusation made in the complaint makes out a case for commission of offence or not,",
the police while reaching the prima facie satisfaction of suspecting the commission of,
"cognizable offence, cannot ignore the general exception as provided under IPC, 1860",
"as per Chapter IV of IPC, 1860. If on the basis of the allegation made in the complaint,",
"the case is falling in general exceptions, it can be said that the action cannot be termed",
as an offence.4. Investigating officer is bound to investigate and confirm that despite,
"what is contained in the ""General Exceptions""; acts committed by accused shall",
"constitute offence under IPC, 1860. This shall be done, by virtue of section 6 of IPC,",
"1860. In the light of section 6 of IPC, 1860, definition of every offence is to be",
"understood subject to the ""General Exceptions"". Therefore, investigation shall not",
confine merely to the acts committed by a person. Depending on facts and,
"circumstances of each case, many other relevant facts also have to be investigated",
"into, in the light of the provisions contained in ""General Exceptions"". It is only then that",
an investigating officer will be able to confirm whether the act committed by a person,
"is an offence or not, as defined in IPC, 1860 subject to what is contained in ""General",
"Exceptions"". Further, the category of self-defence falling in general exception would fall",
"in a different category than the general exceptions, which are provided in the very",
chapter for exercise of the statutory duty or lawful power either under the mistake of,
law or fact or mistaken belief of law or fact.5.,
Of the Right of Private Defence,
[s 103] When the right of private defence of property extends to causing death.,
"The right of private defence of property extends, under the restrictions mentioned in",
"section 99, to the voluntary causing of death or of any other harm to the wrong-doer, if",
"the offence, the committing of which, or the attempting to commit which, occasions",
"the exercise of the right, be an offence of any of the descriptions hereinafter",
"enumerated, namely:—",
First.—Robbery;,
Secondly.—House-breaking by night;,
"Thirdly.—Mischief by fire committed on any building, tent or vessel, which building,",
"tent or vessel is used as a human dwelling, or as a place for the custody of property;",
"Fourthly.—Theft, mischief, or house-trespass, under such circumstances as may",
"reasonably cause apprehension that death or grievous hurt will be the consequence, if",
such right of private defence is not exercised.,
State Amendments,
"Karnataka.—The following amendments were made by Karnataka Act No. 8 of 1972, s. 2",
(w.e.f. 7-10-1972).,
In its application to the State of Karnataka in s. 103(1) in clause Thirdly—,
"(i) after the words ""mischief by fire"", insert the words ""or any explosive substance"";",
"(ii) after the words ""as a human dwelling, or"", insert the words ""as a place of worship",
"or"".",
"(2) after clause Fourthly, insert the following clause, namely:—",
Fifthly.—Mischief by fire or any explosive substance committed on any property used or,
"intended to be used for the purpose of Government or any local authority, statutory",
body or company owned or controlled by Government or railway or any vehicle used or,
adapted to be used for the carriage of passengers for hire or reward.,
Maharashtra.—The following amendments were made by Maharashtra Act No. 19 of,
"1971, s. 26 (w.e.f. 31-12-1971).",
"In its application to the State of Maharashtra, In section 103, add the following at the",
"end, namely:—",
"""Fifthly.—Mischief by fire or any explosive substance committed on any property used",
"or intended to be used for the purposes of Government or any local authority, statutory",
"body, company owned or controlled by Government, railway or tramway, or on any",
"vehicle used or adapted to be used, for the carriage of passengers for hire or reward.""",
"Uttar Pradesh.—The following amendments were made by U.P. Act No. 29 of 1970, s. 2,",
w.e.f. 17-7-1970.,
"In its application to the State of Uttar Pradesh, In section 103, after clause Fourthly, add",
"the following clause, namely:—",
Fifthly.—Mischief by fire or any explosive substance committed on—,
"(a) Any property used or intended to be used for the purpose of Government, or any",
"local authority or other corporation owned or controlled by the Government, or",
"(b) any railway as defined in clause (4) of section 3 of the Indian Railways Act, 1890 or",
"railways stores as defined in the Railways Stores (Unlawful Possession) Act, 1955;,or",
(c) any transport vehicle as defined in clause (33) of section 2 of the Motor Vehicles,
"Act, 1939.",
COMMENT.—,
Death caused in defence of property.—Section 100 enumerates the cases in which the,
right of private defence of the body extends to the causing of death; this section,
enumerates the cases in which it extends to the causing of death in defence of,
property.,
"A person employed to guard the property of his employer is protected by sections 97,",
"99, 103 and 105 if he causes death in safeguarding his employer's property when there",
is reason to apprehend that the person whose death has been caused was about to,
commit one of the offences mentioned in this section or to attempt to commit one of,
those offences. A person whose duty it is to guard a public building is in the same,
"position, that is to say, it is his duty to protect the property of his employer and he may",
take such steps for this purpose as the law permits. The fact that the property to be,
"guarded is public property does not extend the protection given to a guard. Therefore, a",
police constable on guard duty at a magazine or other public building is not entitled to,
fire at a person merely because the latter does not answer his challenge.491. The,
"deceased, none of whom was in possession of any dangerous weapons, were",
harvesting crop on a plot of land with peaceful intention under the protection of police.,
"The accused who claimed the crops did not approach the authorities for redress,",
"although they had time to do so, sent away the police constables by a ruse and then",
attacked the deceased with guns and other dangerous weapons and shot them down,
at close range. It was held by the Supreme Court that the acts of the deceased did not,
amount to robbery and that the accused had no right of private defence of property.492.,
The accused was in possession of the plots which were under litigation. Finding his,
"opponent, a blind man, getting the plots ploughed, the accused asked him to stop",
"ploughing. On this, 8–10 persons armed with spears and 'lathis' proceeded towards",
"him. The accused fired a shot from his gun causing death of his opponent, the blind",
man. The Court observed that a blind villager could not be thought of going to take,
possession of the plots without mobilising enough man power to deal with resistance,
likely to be put up by his adversary. It was held that in the circumstances the right of,
private defence of the person became available to the accused.493.,
"In the words of the Supreme Court, the High Court committed an error in relation to the",
plea of self-defence raised on behalf of the accused to the effect that the incident took,
place at an open space. There is no law that the right of self-defence cannot be,
exercised in relation to an open space.494. Reasonable force may be used in defence of,
property. It would not in general be reasonable to kill in defence of property alone.495.,
[s 103.1] Trespasser.—,
The right of private defence of property extending to causing of death is not available in,
cases of trespass on open land.496.,
[s 103.2] Causing death while on patrol duty.—,
The accused constable killed his head constable. The accused was doing his patrolling,
duty at the time on a bridge. He claimed to have fired at somebody whom he saw with,
"firearm near the value tower, which was neither used for human dwelling nor for",
custody of property. He did not plead that he entertained apprehension of death or,
grievous hurt. The Court said that the plea of private defence extending to the causing,
of death was not tenable.497.,
[s 103.3] CASES.—,
"The accused did not close his flour mill on the day of ""Bharat Bandh"", organized by",
some political parties. The activists entered the mill and demanded closure. They were,
armed with sharp-edged weapons. They threatened and assaulted the person who was,
operating the mill. He fired at them resulting in death of two persons and also injuring,
some innocent people. His property was set on fire. It was held that the acts of the,
accused were within the reasonable limits of the right of private defence. His,
conviction was set aside.498.,
"1. Shankar Narayan Bhadolkar v State of Maharashtra, AIR 2004 SC 1966 [LNIND 2004 SC 1370] :",
2004 Cr LJ 1778 : (2005) 9 SCC 71 [LNIND 2004 SC 1370] .,
"2. The Indian Evidence Act, I of 1872, section 105.",
"3. Musammat Anandi, (1923) 45 All 329 ; Babulal, 1960 Cr LJ 437 (All).",
"4. A K Chaudhary v State of Gujarat, 2006 Cr LJ 726 (Guj).",
"5. A K Chaudhary v State of Gujarat, 2006 Cr LJ 726 (Guj).",
"491. Jamuna Singh, (1944) 23 Pat 908.",
"492. Gurdatta Mal, AIR 1965 SC 257 [LNIND 1964 SC 30] : (1965) 1 Cr LJ 242 . Champer v State",
"of Orissa, 1988 Cr LJ 1882 Orissa, wherein a land dispute, death was caused in excess of the",
"right of private defence. Mahabir Choudhary v State of Bihar, AIR 1996 SC 1998 [LNIND 1996 SC",
"891] : 1996 Cr LJ 2860 , causing death in response to mischief to property, there being no fear",
"of death or grievous hurt, held right exceeded. Ram Bilas Yadav v State of Bihar, AIR 2002 SC 530",
"[LNIND 2001 SC 2789] , irrigation dispute, appellants came with pre-determination and also",
more armed and did more harm than necessary. They were not entitled to any benefit under the,
"section or to the benefit of section 300, exception 2.",
"493. Chandra Shekhar Tiwari v State, 1993 Cr LJ 2159 (All).",
"494. Kishan Chand v State of UP, (2007) 14 SCC 737 [LNIND 2007 SC 1190] : AIR 2008 SC 133",
[LNIND 2007 SC 1190] : (2007) 6 All LJ 658.,
"495. Kashi Ram v State of Rajasthan, (2008) 3 SCC 55 [LNIND 2008 SC 187] : AIR 2008 SC 1172",
[LNIND 2008 SC 187] .,
"496. Jassa Singh v State of Haryana, AIR 2002 SC 520 [LNIND 2002 SC 13] : 2002 Cr LJ 563 ;",
"Puttan v State of TN, AIR 2000 SC 3405 (2) : 2000 SCC (Cr) 1504, the circumstances showed",
that the accused were entitled to private defence of property. But procurement of a lethal,
"weapon, and the number of injuries inflicted by him showed that the accused crossed all",
frontiers of private defence. Conviction was altered to one under section 304 Part I. Gokula v,
"State of Rajasthan, 1998 Cr LJ 4053 : AIR 1998 SC 3016 [LNIND 1998 SC 743] , two persons",
"seen on the land were not shown to be trespassers, there was no question of any justification",
for casuing their death in defence of property. The accused convicted for murder. Another,
"similar case, Jotram v State of Rajasthan, 1998 Cr LJ 1492 (Raj); Arjunan v State of TN, 1997 Cr",
"LJ 2327 (Mad), in a sudden quarrel over the right to cut a tree, the accused gave a blow of the",
"wooden reaper on the head of the deceased causing death, the tree stood on the land of the",
"deceased and was in his actual physical possession, the right of private defence not available to",
"the accused. See also Govind Singh v State of Rajsthan, 1997 Cr LJ 1562 (Raj), no proof of",
"trespassing cattle, yet attack and killing, conviction under section 304, Part II.",
"497. Bhupendra Singh A Chudasama v State of Gujarat, AIR 1997 SC 3790 [LNIND 1997 SC 1378]",
: 1998 Cr LJ 57 .,
"498. James Martin v State of Kerala, (2004) 2 SCC 203 [LNIND 2003 SC 1097] .",
THE INDIAN PENAL CODE,
CHAPTER IV GENERAL EXCEPTIONS,
THIS chapter has been framed in order to obviate the necessity of repeating in every,
penal clause a considerable number of limitations.,
The word 'offence' in this chapter denotes a thing punishable under the Code or under,
any special or local law when it satisfied the conditions laid down in section 40 of the,
Code.,
"The ""general exceptions"" contained in sections 76–106 make an offence a non-offence.",
"The ""general exceptions"" enacted by Indian Penal Code, 1860 (IPC, 1860) are of",
"universal application and for the sake of brevity of expression, instead of repeating in",
"every section that the definition is to be taken subject to the exceptions, the Legislature",
"by section 6 IPC, 1860 enacted that all the definitions must be regarded as subject to",
"the general exceptions. Therefore, general exceptions are part of definition of every",
"offence contained in IPC, 1860, but the burden to prove their existence lied on the",
accused.1.,
The following acts are exempted under the Code from criminal liability:—,
1. Act of a person bound by law to do a certain thing (section 76).,
2. Act of a Judge acting judicially (section 77).,
3. Act done pursuant to an order or a judgment of a Court (section 78).,
"4. Act of a person justified, or believing himself justified, by law (section 79).",
5. Act caused by accident (section 80).,
6. Act likely to cause harm done without criminal intent to prevent other harm,
(section 81).,
7. Act of a child under seven years (section 82).,
"8. Act of a child above seven and under 12 years, but of immature understanding",
(section 83).,
9. Act of a person of unsound mind (section 84).,
10. Act of an intoxicated person (section 85) and partially exempted (section 86).,
11. Act not known to be likely to cause death or grievous hurt done by consent of,
the sufferer (section 87).,
12. Act not intended to cause death done by consent of sufferer (section 88).,
13. Act done in good faith for the benefit of a child or an insane person by or by the,
consent of guardian (section 89).,
14. Act done in good faith for the benefit of a person without consent (section 92).,
15. Communication made in good faith to a person for his benefit (section 93).,
16. Act done under threat of death (section 94).,
17. Act causing slight harm (section 95).,
18. Act done in private defence (sections 96–106).,
"The above exceptions, strictly speaking, come within the following seven categories:—",
"1. Judicial acts (section. 77, 78).",
"2. Mistake of fact (sections 76, 79).",
3. Accident (section 80).,
"4. Absence of criminal intent (sections 81–86, 92–94).",
"5. Consent (sections 87, 90).",
6. Trifling acts (section 95).,
7. Private defence (sections 96–106).,
"Onus of proving exception lies on accused.—When a person is accused of any offence,",
the burden of proving the existence of circumstances bringing the case within any of,
"the general exceptions in the Penal Code, or within any special exception or proviso",
"contained in any other part of the same Code, or in any law defining the offence, is",
"upon him, and the Court shall presume the absence of such circumstances.2.",
Although the law lays down that the onus of proving circumstances which give the,
"benefit of a general exception to an accused person lies on him, and in the absence of",
"evidence the presumption is against the accused, this does not mean that the accused",
"must lead evidence. If it is apparent from the evidence on the record, whether produced",
"by the prosecution or by the defence, that a general exception would apply, then the",
presumption is removed and it is open to the Court to consider whether the evidence,
proves to its satisfaction that the accused comes within the exception.3.,
Applicability of General exceptions during investigation.—In considering that whether,
"accusation made in the complaint makes out a case for commission of offence or not,",
the police while reaching the prima facie satisfaction of suspecting the commission of,
"cognizable offence, cannot ignore the general exception as provided under IPC, 1860",
"as per Chapter IV of IPC, 1860. If on the basis of the allegation made in the complaint,",
"the case is falling in general exceptions, it can be said that the action cannot be termed",
as an offence.4. Investigating officer is bound to investigate and confirm that despite,
"what is contained in the ""General Exceptions""; acts committed by accused shall",
"constitute offence under IPC, 1860. This shall be done, by virtue of section 6 of IPC,",
"1860. In the light of section 6 of IPC, 1860, definition of every offence is to be",
"understood subject to the ""General Exceptions"". Therefore, investigation shall not",
confine merely to the acts committed by a person. Depending on facts and,
"circumstances of each case, many other relevant facts also have to be investigated",
"into, in the light of the provisions contained in ""General Exceptions"". It is only then that",
an investigating officer will be able to confirm whether the act committed by a person,
"is an offence or not, as defined in IPC, 1860 subject to what is contained in ""General",
"Exceptions"". Further, the category of self-defence falling in general exception would fall",
"in a different category than the general exceptions, which are provided in the very",
chapter for exercise of the statutory duty or lawful power either under the mistake of,
law or fact or mistaken belief of law or fact.5.,
Of the Right of Private Defence,
[s 104] When such right extends to causing any harm other than death.,
"If the offence, the committing of which, or the attempting to commit which, occasions",
"the exercise of the right of private defence, be theft, mischief, or criminal trespass,",
"not of any of the descriptions enumerated in the last preceding section, that right",
"does not extend to the voluntary causing of death, but does extend, subject to the",
"restrictions mentioned in section 99, to the voluntary causing to the wrong-doer of",
any harm other than death.,
COMMENT.—,
This section applies in cases where an injury (but not death) is inflicted on the offender,
"in the course of his committing the offences of theft, mischief, or criminal trespass by",
the person exercising the right of private defence. But the section does not apply to a,
case where death has been caused in exercise of the supposed right of private,
defence.499. Even so where the accused had killed a person by exceeding his right of,
"private defence of property under this section, his case would fall within the ambit of",
"Exception-II to section 300 IPC, 1860, and his offence would amount to culpable",
"homicide not amounting to murder. He could not, therefore, be punished with a",
sentence of death. In the instant case the sentence was altered to one of life,
imprisonment.500.,
Sections 101 and 104 restrict the right of private defence in certain cases to voluntarily,
"causing hurt or grievous hurt. Section 101 is a corollary to section 100, and this section",
tosection 103.,
"1. Shankar Narayan Bhadolkar v State of Maharashtra, AIR 2004 SC 1966 [LNIND 2004 SC 1370] :",
2004 Cr LJ 1778 : (2005) 9 SCC 71 [LNIND 2004 SC 1370] .,
"2. The Indian Evidence Act, I of 1872, section 105.",
"3. Musammat Anandi, (1923) 45 All 329 ; Babulal, 1960 Cr LJ 437 (All).",
"4. A K Chaudhary v State of Gujarat, 2006 Cr LJ 726 (Guj).",
"5. A K Chaudhary v State of Gujarat, 2006 Cr LJ 726 (Guj).",
"499. Ramram Mahton, (1947) 26 Pat 550.",
"500. Jai Bhagwan v State of Haryana, AIR 1999 SC 1083 [LNIND 1999 SC 116] : 1999 Cr LJ 1634",
accused party was in possession of the land into which the other party entered for tilling it. The,
mother of the accused exhorted them and they murderously assaulted the deceased. The act,
amounted to criminal trespass within the meaning of section 411. The right of self-defence to,
the extent of causing death did not exist. The offence of murder was made out. State of UP v,
"Laeeq, AIR 1999 SC 1942 [LNIND 1999 SC 447] : 1999 Cr LJ 2879 exceeding the right of private",
"defence, punishment under section 304.",
THE INDIAN PENAL CODE,
CHAPTER IV GENERAL EXCEPTIONS,
THIS chapter has been framed in order to obviate the necessity of repeating in every,
penal clause a considerable number of limitations.,
The word 'offence' in this chapter denotes a thing punishable under the Code or under,
any special or local law when it satisfied the conditions laid down in section 40 of the,
Code.,
"The ""general exceptions"" contained in sections 76–106 make an offence a non-offence.",
"The ""general exceptions"" enacted by Indian Penal Code, 1860 (IPC, 1860) are of",
"universal application and for the sake of brevity of expression, instead of repeating in",
"every section that the definition is to be taken subject to the exceptions, the Legislature",
"by section 6 IPC, 1860 enacted that all the definitions must be regarded as subject to",
"the general exceptions. Therefore, general exceptions are part of definition of every",
"offence contained in IPC, 1860, but the burden to prove their existence lied on the",
accused.1.,
The following acts are exempted under the Code from criminal liability:—,
1. Act of a person bound by law to do a certain thing (section 76).,
2. Act of a Judge acting judicially (section 77).,
3. Act done pursuant to an order or a judgment of a Court (section 78).,
"4. Act of a person justified, or believing himself justified, by law (section 79).",
5. Act caused by accident (section 80).,
6. Act likely to cause harm done without criminal intent to prevent other harm,
(section 81).,
7. Act of a child under seven years (section 82).,
"8. Act of a child above seven and under 12 years, but of immature understanding",
(section 83).,
9. Act of a person of unsound mind (section 84).,
10. Act of an intoxicated person (section 85) and partially exempted (section 86).,
11. Act not known to be likely to cause death or grievous hurt done by consent of,
the sufferer (section 87).,
12. Act not intended to cause death done by consent of sufferer (section 88).,
13. Act done in good faith for the benefit of a child or an insane person by or by the,
consent of guardian (section 89).,
14. Act done in good faith for the benefit of a person without consent (section 92).,
15. Communication made in good faith to a person for his benefit (section 93).,
16. Act done under threat of death (section 94).,
17. Act causing slight harm (section 95).,
18. Act done in private defence (sections 96–106).,
"The above exceptions, strictly speaking, come within the following seven categories:—",
"1. Judicial acts (section. 77, 78).",
"2. Mistake of fact (sections 76, 79).",
3. Accident (section 80).,
"4. Absence of criminal intent (sections 81–86, 92–94).",
"5. Consent (sections 87, 90).",
6. Trifling acts (section 95).,
7. Private defence (sections 96–106).,
"Onus of proving exception lies on accused.—When a person is accused of any offence,",
the burden of proving the existence of circumstances bringing the case within any of,
"the general exceptions in the Penal Code, or within any special exception or proviso",
"contained in any other part of the same Code, or in any law defining the offence, is",
"upon him, and the Court shall presume the absence of such circumstances.2.",
Although the law lays down that the onus of proving circumstances which give the,
"benefit of a general exception to an accused person lies on him, and in the absence of",
"evidence the presumption is against the accused, this does not mean that the accused",
"must lead evidence. If it is apparent from the evidence on the record, whether produced",
"by the prosecution or by the defence, that a general exception would apply, then the",
presumption is removed and it is open to the Court to consider whether the evidence,
proves to its satisfaction that the accused comes within the exception.3.,
Applicability of General exceptions during investigation.—In considering that whether,
"accusation made in the complaint makes out a case for commission of offence or not,",
the police while reaching the prima facie satisfaction of suspecting the commission of,
"cognizable offence, cannot ignore the general exception as provided under IPC, 1860",
"as per Chapter IV of IPC, 1860. If on the basis of the allegation made in the complaint,",
"the case is falling in general exceptions, it can be said that the action cannot be termed",
as an offence.4. Investigating officer is bound to investigate and confirm that despite,
"what is contained in the ""General Exceptions""; acts committed by accused shall",
"constitute offence under IPC, 1860. This shall be done, by virtue of section 6 of IPC,",
"1860. In the light of section 6 of IPC, 1860, definition of every offence is to be",
"understood subject to the ""General Exceptions"". Therefore, investigation shall not",
confine merely to the acts committed by a person. Depending on facts and,
"circumstances of each case, many other relevant facts also have to be investigated",
"into, in the light of the provisions contained in ""General Exceptions"". It is only then that",
an investigating officer will be able to confirm whether the act committed by a person,
"is an offence or not, as defined in IPC, 1860 subject to what is contained in ""General",
"Exceptions"". Further, the category of self-defence falling in general exception would fall",
"in a different category than the general exceptions, which are provided in the very",
chapter for exercise of the statutory duty or lawful power either under the mistake of,
law or fact or mistaken belief of law or fact.5.,
Of the Right of Private Defence,
[s 105] Commencement and continuance of the right of private defence of,
property.,
The right of private defence of property commences when a reasonable apprehension,
of danger to the property commences.,
The right of private defence of property against theft continues till the offender has,
effected his retreat with the property or either,
"the assistance of the public authorities is obtained, or the property has been",
recovered.,
The right of private defence of property against robbery continues as long as the,
offender causes or attempts to cause to any person death or hurt or wrongful restraint,
or as long as the fear of instant death or of instant hurt or of instant personal restraint,
continues.,
The right of private defence of property against criminal trespass or mischief,
continues as long as the offender continues in the commission of criminal trespass or,
mischief.,
The right of private defence of property against house-breaking by night continues as,
long as the house-trespass which has been begun by such house-breaking continues.,
COMMENT.—,
This section indicates when the right of defence of property commences and till what,
period it continues. It is similar to section 102.,
[s 105.1] First clause.—,
The right of private defence of property commences when a reasonable apprehension,
of danger to property commences. Before such apprehension commences the owner,
of the property is not called upon to apply for protection to the public authorities. The,
right commences not when the actual danger to the property commences but when,
there is reasonable apprehension of danger.501.,
[s 105.2] Second clause.—,
The right of private defence of property against theft continues till (1) the offender has,
"affected his retreat with the property, or (2) the assistance of public authorities is",
"obtained, or (3) the property has been recovered.502. An offender is to be considered as",
having affected his retreat when he has once got off having escaped immediate pursuit,
"not having been made. A recapture of the plundered property, while it is in course of",
"being carried away, is authorized, for the taking and retaking is one transaction. But",
"when the offence has been committed and the property removed, a recapture after an",
"interval of time by the owner or by other persons on his behalf, however justifiable,",
cannot be deemed an exercise of the right of defence of property. The recovery which,
the section contemplates seems to be a recovery either immediate or made before the,
offender has reached his final retreat.503. Where the appellants followed up tracks,
"purporting to be those of their stolen cattle, and prior to the arrival of the police (for",
whose assistance one of their party had ridden away) proceeded to the complainants',
"village and fired at them, it was held that the appellants' right of private defence of their",
"property had been put an end to by the successful retreat of the thieves, and that their",
alleged rediscovery of the cattle in the complainants' possession could not revive that,
right.504.,
[s 105.3] Third clause.—,
A rightful owner in peaceful possession of his land is entitled to defend his property,
against any person or persons who threaten to dispossess him. The law does not,
expect any cowardice on his part when there is real and imminent danger to his,
"property from outside sources. Thus, a rightful owner is entitled to throw out, by using",
such force as would in the circumstances of the case appear to be reasonable,
"necessary, any person who tries to invade his right to peaceful possession of his",
"properly. But if the trespasser has settled in the possession of the property, the",
recourse which the rightful person must adopt. is to recover possession in accordance,
with law and not by force. In such a case the trespasser would be entitled to defend his,
possession even against a rightful owner if the latter tries to evict him by use of force.,
But no hard and fast rule can be laid down in this behalf because much would depend,
on the facts of each case.505.,
[s 105.4] Fourth clause.—,
In the case of criminal trespass and mischief the right of private defence ceases to,
exist as soon as the commission of these offences ceases.506.,
[s 105.5] Fifth clause.—,
The right of private defence against house-breaking continues only so long as the,
"house-trespass continues; hence, where a person followed a thief and killed him in the",
"open, after the house-trespass had ceased, it was held that he could not plead the right",
of private defence.507.,
"1. Shankar Narayan Bhadolkar v State of Maharashtra, AIR 2004 SC 1966 [LNIND 2004 SC 1370] :",
2004 Cr LJ 1778 : (2005) 9 SCC 71 [LNIND 2004 SC 1370] .,
"2. The Indian Evidence Act, I of 1872, section 105.",
"3. Musammat Anandi, (1923) 45 All 329 ; Babulal, 1960 Cr LJ 437 (All).",
"4. A K Chaudhary v State of Gujarat, 2006 Cr LJ 726 (Guj).",
"5. A K Chaudhary v State of Gujarat, 2006 Cr LJ 726 (Guj).",
"501. Chakradhar, (1964) 2 Cr LJ 696 .",
"502. Punjabrao, (1945) Nag 881.",
"503. M & M 81; Amar Singh, AIR 1968 Raj 11 [LNIND 1966 RAJ 160] .",
"504. Mir Dad, (1925) 7 Lah 21.",
"505. Maguni Charan Pradhan v State of Orissa, (1991) 3 SCC 352 [LNIND 1991 SC 191] : 1991 (2)",
Crimes 261 (SC).,
"506. Rajesh Kumar v Dharamvi, 1997 Cr LJ 2242 : AIR 1997 SC 3769 [LNIND 1997 SC 445] , the",
accused came to the place of occurrence and attacked the complainant after the latter had,
already damaged the outer door of the house. It was held that the accused had no right of,
private defence.,
"507. Balakee Jolahed, (1868) 10 WR (Cr) 9; Gulbadan v State, (1885) PR No. 25 of 1885.",
THE INDIAN PENAL CODE,
CHAPTER IV GENERAL EXCEPTIONS,
THIS chapter has been framed in order to obviate the necessity of repeating in every,
penal clause a considerable number of limitations.,
The word 'offence' in this chapter denotes a thing punishable under the Code or under,
any special or local law when it satisfied the conditions laid down in section 40 of the,
Code.,
"The ""general exceptions"" contained in sections 76–106 make an offence a non-offence.",
"The ""general exceptions"" enacted by Indian Penal Code, 1860 (IPC, 1860) are of",
"universal application and for the sake of brevity of expression, instead of repeating in",
"every section that the definition is to be taken subject to the exceptions, the Legislature",
"by section 6 IPC, 1860 enacted that all the definitions must be regarded as subject to",
"the general exceptions. Therefore, general exceptions are part of definition of every",
"offence contained in IPC, 1860, but the burden to prove their existence lied on the",
accused.1.,
The following acts are exempted under the Code from criminal liability:—,
1. Act of a person bound by law to do a certain thing (section 76).,
2. Act of a Judge acting judicially (section 77).,
3. Act done pursuant to an order or a judgment of a Court (section 78).,
"4. Act of a person justified, or believing himself justified, by law (section 79).",
5. Act caused by accident (section 80).,
6. Act likely to cause harm done without criminal intent to prevent other harm,
(section 81).,
7. Act of a child under seven years (section 82).,
"8. Act of a child above seven and under 12 years, but of immature understanding",
(section 83).,
9. Act of a person of unsound mind (section 84).,
10. Act of an intoxicated person (section 85) and partially exempted (section 86).,
11. Act not known to be likely to cause death or grievous hurt done by consent of,
the sufferer (section 87).,
12. Act not intended to cause death done by consent of sufferer (section 88).,
13. Act done in good faith for the benefit of a child or an insane person by or by the,
consent of guardian (section 89).,
14. Act done in good faith for the benefit of a person without consent (section 92).,
15. Communication made in good faith to a person for his benefit (section 93).,
16. Act done under threat of death (section 94).,
17. Act causing slight harm (section 95).,
18. Act done in private defence (sections 96–106).,
"The above exceptions, strictly speaking, come within the following seven categories:—",
"1. Judicial acts (section. 77, 78).",
"2. Mistake of fact (sections 76, 79).",
3. Accident (section 80).,
"4. Absence of criminal intent (sections 81–86, 92–94).",
"5. Consent (sections 87, 90).",
6. Trifling acts (section 95).,
7. Private defence (sections 96–106).,
"Onus of proving exception lies on accused.—When a person is accused of any offence,",
the burden of proving the existence of circumstances bringing the case within any of,
"the general exceptions in the Penal Code, or within any special exception or proviso",
"contained in any other part of the same Code, or in any law defining the offence, is",
"upon him, and the Court shall presume the absence of such circumstances.2.",
Although the law lays down that the onus of proving circumstances which give the,
"benefit of a general exception to an accused person lies on him, and in the absence of",
"evidence the presumption is against the accused, this does not mean that the accused",
"must lead evidence. If it is apparent from the evidence on the record, whether produced",
"by the prosecution or by the defence, that a general exception would apply, then the",
presumption is removed and it is open to the Court to consider whether the evidence,
proves to its satisfaction that the accused comes within the exception.3.,
Applicability of General exceptions during investigation.—In considering that whether,
"accusation made in the complaint makes out a case for commission of offence or not,",
the police while reaching the prima facie satisfaction of suspecting the commission of,
"cognizable offence, cannot ignore the general exception as provided under IPC, 1860",
"as per Chapter IV of IPC, 1860. If on the basis of the allegation made in the complaint,",
"the case is falling in general exceptions, it can be said that the action cannot be termed",
as an offence.4. Investigating officer is bound to investigate and confirm that despite,
"what is contained in the ""General Exceptions""; acts committed by accused shall",
"constitute offence under IPC, 1860. This shall be done, by virtue of section 6 of IPC,",
"1860. In the light of section 6 of IPC, 1860, definition of every offence is to be",
"understood subject to the ""General Exceptions"". Therefore, investigation shall not",
confine merely to the acts committed by a person. Depending on facts and,
"circumstances of each case, many other relevant facts also have to be investigated",
"into, in the light of the provisions contained in ""General Exceptions"". It is only then that",
an investigating officer will be able to confirm whether the act committed by a person,
"is an offence or not, as defined in IPC, 1860 subject to what is contained in ""General",
"Exceptions"". Further, the category of self-defence falling in general exception would fall",
"in a different category than the general exceptions, which are provided in the very",
chapter for exercise of the statutory duty or lawful power either under the mistake of,
law or fact or mistaken belief of law or fact.5.,
Of the Right of Private Defence,
[s 106] Right of private defence against deadly assault when there is risk of,
harm to innocent person.,
If in the exercise of the right of private defence against an assault which reasonably,
"causes the apprehension of death, the defender be so situated that he cannot",
"effectually exercise that right without risk of harm to an innocent person, his right of",
private defence extends to the running of that risk.,
ILLUSTRATION,
A is attacked by a mob who attempt to murder him. He cannot effectually exercise his,
"right of private defence without firing on the mob, and he cannot fire without risk of",
harming young children who are mingled with the mob. A commits no offence if by so,
firing he harms any of the children.,
COMMENT.—,
This section should be read in the light of section 100. Injury to innocent persons in the,
exercise of the right of defence is excusable under it.508.,
"1. Shankar Narayan Bhadolkar v State of Maharashtra, AIR 2004 SC 1966 [LNIND 2004 SC 1370] :",
2004 Cr LJ 1778 : (2005) 9 SCC 71 [LNIND 2004 SC 1370] .,
"2. The Indian Evidence Act, I of 1872, section 105.",
"3. Musammat Anandi, (1923) 45 All 329 ; Babulal, 1960 Cr LJ 437 (All).",
"4. A K Chaudhary v State of Gujarat, 2006 Cr LJ 726 (Guj).",
"5. A K Chaudhary v State of Gujarat, 2006 Cr LJ 726 (Guj).",
"508. State of Karnataka v Madesha, (2007) 7 SCC 35 [LNIND 2007 SC 918] : AIR 2007 SC 2917",
"[LNIND 2007 SC 921] , risk of harm to an innocent person in the exercise of the right of private",
defence. The court examined whether the right could be available to a person who caused the,
death of a man who had no role to play in the dispute.,
THE INDIAN PENAL CODE,
CHAPTER V OF ABETMENT,
[s 107] Abetment of a thing.,
"A person abets the doing of a thing, who—",
First.—Instigates any person to do that thing; or,
Secondly.—Engages with one or more other person or persons in any conspiracy for,
"the doing of that thing, if an act or illegal omission takes place in pursuance of that",
"conspiracy, and in order to the doing of that thing; or",
"Thirdly.—Intentionally aids, by any act or illegal omission, the doing of that thing.",
"Explanation 1.—A person who, by wilful misrepresentation, or by wilful concealment of",
"a material fact which he is bound to disclose, voluntarily causes or procures, or",
"attempts to cause or procure, a thing to be done, is said to instigate the doing of that",
thing.,
ILLUSTRATION,
"A, a public officer is authorised by a warrant from a Court of Justice to apprehend Z. B,",
"knowing that fact and also that C is not Z, wilfully represents to A that C is Z, and",
thereby intentionally causes A to apprehend C. Here B abets by instigation the,
apprehension of C.,
"Explanation 2.—Whoever, either prior to or at the time of the commission of an act,",
"does anything in order to facilitate the commission of that act, and thereby facilitates",
"the commission thereof, is said to aid the doing of that act.",
COMMENTS.—,
"In common parlance, the word 'abet' means assistance, co-operation and",
"encouragement and includes wrongful purpose. In Corpus Juris Secundum, vol I at p",
"306, the meaning of the word 'abet' is given as follows:",
"'To abet' has been defined as meaning to aid; to assist or to give aid; to command, to",
"procure, or to counsel; to countenance; to encourage, counsel, induce, or assist; to",
encourage or to set another on to commit.,
Used with 'aid'. The word 'abet' is generally used with the word 'aid' and similar words.,
"In order to bring a person abetting the doing of a thing, under any one of the clauses",
"enumerated under section 107, it is not only necessary to prove that the person who",
has abetted has taken part in the steps of the transactions but also in some way or,
other he has been connected with those steps of the transactions which are criminal.,
"The offence of abetment depends upon the intention of the person who abets, and not",
upon the act which is actually done by the person whom he abets.1.,
For the purposes of the first two clauses of this section it is immaterial whether the,
person instigated commits the offence or not or the persons conspiring together,
actually carry out the object of the conspiracy.2. It is only in the case of a person,
abetting an offence by intentionally aiding another to commit that offence that the,
charge of abetment against him would be expected to fail when the person alleged to,
have committed the offence is acquitted of that offence.3. The Court noted that in,
Faguna Kanta Nath v State of Assam4. the appellant was tried for an offence under,
"section 165A for having abetted the commission of an offence by an officer, who was",
"acquitted, and it was held that the appellant's conviction for abetment was also not",
"maintainable. But subsequently in Jamuna Singh v State of Bihar,5. it was considered",
not desirable to hold that an abettor cannot be punished if the person actually,
committing the offence is acquitted. The Court said that the abettor's guilt depends,
upon the nature of the offence abetted and the manner of abetment. It is only in cases,
of intentional aiding that the abettor would have to be acquitted with the principal,
offender.6. Following this state of the rulings the Supreme Court ordered the acquittal,
of the single abettor when the main offender as also all other abettors already stood,
acquitted.,
The Supreme Court has reiterated that before anybody can be punished for abetment,
"of suicide, it must be proved that the death in question was a suicidal death.7.",
The Supreme Court held that the offence of abetment is a separate and independent,
offence. Where the offence is committed in consequence of the abetment but there is,
"no provision for punishment of such abetment, the abettor is to be punished along with",
the offender for the original offence.8.,
Abetment is constituted by:,
(1) instigating a person to commit an offence; or,
(2) engaging in a conspiracy to commit it; or,
(3) intentionally aiding a person to commit it.,
The offence of abetment by instigation depends upon the intention of the person who,
abets and not upon the act which is done by the person who has abetted. The,
"abetment may be by instigation, conspiracy or intentional aid as provided under section",
"107, Indian Penal Code (IPC), 1860. However, the words uttered in a fit of anger or",
omission without any intention cannot be termed as instigation.9.,
[s 107.1] Mens rea.—,
"In order to proceed against a person for criminal offence under section 107,",
prosecution must prove the element of mens rea. Negligence or carelessness or the,
facilitation cannot be termed to be abetment so as to punish the guilty as per the,
"provision of penal laws.10. In order to constitute abetment, the abettor must be shown",
"to have ""intentionally"" aided to commission of the crime. Mere proof, that the crime",
charged could not have been committed without involvement and/or interposition of,
the alleged abettor is not enough compliance with the requirements of section 107. It is,
not enough that an act on the part of the alleged abettor happens to facilitate the,
commission of the crime. Intentional aiding and therefore active complicity is the gist,
of the offence of abetment under the third paragraph of section 107.11.,
"[s 107.2] Sting operation, mens rea and abetment.—",
"In typical sting operations, though the operation is carried in the public interest, the",
"same is generally done by instigating the accused. Hence the victim, who is otherwise",
"innocent, is lured into committing a crime on the assurance of absolute secrecy and",
confidentiality of the transaction raising the potential question as to how such a victim,
can be held responsible for the crime which he would not have committed but for the,
"enticement. In such circumstances, should the individual, i.e., the sting operator be held",
criminally liable for commission of the offence that is inherent and inseparable from,
the process by which commission of another offence is sought to be established?,
What about the operator who has mens rea or guilty intention to commit the offence?,
These are puzzling questions when there is an allegation that the sting operator is,
alleged to have committed the abetment of the offence. The Supreme Court in Rajat,
"Prasad v CBI,12. observed that a crime does not stand obliterated or extinguished",
"merely because its commission is claimed to be in public interest. At the same time,",
the criminal intent (mens rea) behind the commission of the act will have to be,
established before the liability of the person charged with the commission of crime can,
be adjudged. The Court held that the questions whether the sting operation is a,
journalistic exercise and any criminal intent can be imputed are to be answered by the,
evidence of the parties.,
(1) Abetment by instigation.—First clause.—A person is said to 'instigate' another to an,
"act, when he actively suggests or stimulates him to the act by any means of language,",
"direct or indirect, whether it takes the form of express solicitation, or of hints,",
insinuation or encouragement.13.,
"[s 107.3] ""Instigate"" Meaning.—",
"Instigation is to goad, urge forward, provoke, incite or encourage to do ""an act"". To",
"satisfy the requirement of ""instigation"", though it is not necessary that actual words",
"must be used to that effect or what constitutes ""instigation"" must necessarily and",
specifically be suggestive of the consequence. Yet a reasonable certainty to incite the,
"consequence must be capable of being spelt out. Where the accused had, by his acts",
"or omission or by a continued course of conduct, created such circumstances that the",
"deceased was left with no other option except to commit suicide, in which case,",
"""instigation"" may have to be inferred. A word uttered in a fit of anger or emotion without",
"intending the consequences to actually follow, cannot be said to be instigation. Thus, to",
"constitute 'instigation', a person who instigates another has to provoke, incite, urge or",
"encourage the doing of an act by the other by ""goading"" or 'urging forward'. The",
"dictionary meaning of the word ""goad"" is ""a thing that stimulates someone into action;",
provoke to action or reaction … to keep irritating or annoying somebody until he,
"reacts"".14. The word ""instigate"" literally means to provoke, incite, urge on or bring about",
"by persuasion to do anything. The abetment may be by instigation, conspiracy or",
intentional aid as provided in the three clauses of the section.15. Instigate means the,
active role played by a person with a view to stimulate another person to do the thing.,
In order to hold a person guilty of abetting it must be established that he had,
intentionally done something which amounted to instigating another to do a thing.16.,
Instigation may be of an unknown person.17. A mere acquiescence or permission does,
not amount to instigation.18.,
[s 107.4] Wilful misrepresentation or wilful concealment.—,
"Explanation 1 to this section says that a person who (1) by wilful misrepresentation, or",
"(2) by wilful concealment of a material fact which he is bound to disclose, voluntarily",
"causes or procures, or attempts to cause or procure a thing to be done, is said to",
instigate the doing of that thing. The illustration is an example of instigation by 'wilful,
misrepresentation'. Instigation by 'wilful concealment' is where some duty exists which,
obliges a person to disclose a fact. The explanation to section 107 says that any wilful,
misrepresentation or wilful concealment of a material fact which he is bound to,
"disclose, may also come within the contours of ""abetment"".19.",
[s 107.5] CASES.—Direct instigation.—,
"Where, of several persons constituting an unlawful assembly, some only were armed",
"with sticks, and A, one of them, was not so armed, but picked up a stick and used it, B",
"(the master of A), who gave a general order to beat, was held guilty of abetting the",
assault made by them.20.,
[s 107.6] Suicide.—,
Abetment involves a mental process of instigating a person or intentionally aiding a,
person in doing a thing. Without a positive act on the part of the accused to instigate or,
"aid in committing suicide, conviction cannot be sustained.21. Deceased committed",
suicide by hanging himself because of alleged illicit relationship between his wife and,
the accused. Accused took the wife of deceased away from the house of her brother,
and kept her with him for four days. There is definitely a proximity and nexus between,
the conduct and behaviour of the accused and wife of deceased with that of suicide,
committed by the deceased.22. Where a married girl committed suicide by burning,
"herself in her in-law's house, her in-laws were held guilty of abetment because they",
were persistently torturing her for inadequate dowry and had gone to the extent of,
"accusing her of illegitimate pregnancy.23. ""All these tortures and taunts"", Ray J said,24.",
"""Caused depression in her mind and drove her to take the extreme step of putting an",
"end to her life by sprinkling kerosene oil on her person and setting it afire."" In another",
"case of the same kind a husband persistently demanded more money from his wife,",
quarrelling with her everyday. On the fateful day when she happened to say that death,
"would have been better than this, she heard only this in reply that her husband would",
feel relieved if she ended her life. Immediately thereafter she set herself on fire. The,
husband was held guilty of instigating her to commit suicide.25. Mere harassment of,
wife by husband due to differences per se does not attract section 306 read with,
"section 107, IPC, 1860.26.",
Demand of loan amount by accused from deceased itself does not come within the,
scope of abetment as defined under section 107.27. Goading and intimidating a debtor,
with a view to pressurising him for repayment of the loan which brought about a,
"suicide by the debtor immediately thereafter, was held as not amounting to abetment",
"of suicide and, therefore, no case under section 306 read with section 34 was made",
out.28.,
"The accused told the other person ""to go and die"". It was held that this would not in",
itself satisfy the ingredients of instigation. Instigation has to be with mens rea. The,
suicide was committed two days after the quarrel between the accused and the,
deceased. This also showed that the suicide was not the direct result of the quarrel.,
The suicide note indicated that her husband was a frustrated man and given to drinking,
and suffered from great stress and depression.29.,
"The accused, a Motor Vehicle Inspector, beat up and abused a driver for not being able",
to produce necessary papers. The driver committed suicide. The Court said that it was,
not shown that he was guilty of any act of abetment within the meaning of section 107.,
The charge against him under section 107 was quashed.30.,
[s 107.7] Proof.—,
"In Chitresh Kumar Chopra v State (Govt. of NCT of Delhi),31. the Supreme Court",
reiterated the legal position laid down in its earlier three judge bench judgment in the,
"case of Ramesh Kumar v State of Chhattisgarh,32. and held that where the accused by",
his acts or continued course of conduct creates such circumstances that the deceased,
"was left with no other option except to commit suicide, an instigation may be inferred.",
"In order to prove that the accused abetted commission of suicide by a person, it has to",
be established that:,
"(i) the accused kept on irritating or annoying the deceased by words, deeds or wilful",
omission or conduct which may even be a wilful silence until the deceased,
"reacted or pushed or forced the deceased by his deeds, words or wilful omission",
or conduct to make the deceased move forward more quickly in a forward,
direction; and,
(ii) that the accused had the intention to provoke urge or encourage the deceased,
"to commit suicide while acting in the manner noted above. Undoubtedly,",
presence of mens rea is the necessary concomitant of instigation.33.,
[s 107.8] Threats.—,
Mere threats of involving the family in a false and frivolous case cannot be held to,
tantamount to instigation. By such threats it cannot be held that the accused instigated,
the deceased to commit suicide.34.,
[s 107.9] Test.—,
No straight-jacket formula can be laid down to find out as to whether in a particular,
case there has been instigation which force the person to commit suicide. In a,
"particular case, there may not be direct evidence in regard to instigation which may",
"have direct nexus to suicide. Therefore, in such a case, an inference has to be drawn",
from the circumstances and it is to be determined whether circumstances had been,
such which in fact had created the situation that a person felt totally frustrated and,
committed suicide.35.,
(2) Abetment by conspiracy.—Second clause.—'Conspiracy' consists in the agreement,
of two or more [persons] to do an unlawful act or to do a lawful act by unlawful means.,
"So long as such a design rests in intention only, it is not indictable. When two agree to",
"carry it into effect, the very plot is an act in itself, and the act of each of the parties,",
"promise against promise, actus contra actum, capable of being enforced, if lawful, is",
punishable if for a criminal object or for the use of criminal means.36. It is not,
necessary that the abettor should concert the offence with the person who commits it.,
It is sufficient if he engages in the conspiracy in pursuance of which the offence is,
"committed.37. Where parties concert together, and have a common object, the act of",
"one of the parties, done in furtherance of the common object and in pursuance of the",
"concerted plan, is the act of all.38.",
"Before the introduction of Chapter V-A, conspiracy, except in cases provided for by",
"sections 121A, 311, 400, 401 and 402 of the Code, was a mere species of abetment",
"when an act or an illegal omission took place in pursuance of that conspiracy, and",
amounted to a distinct offence for each distinct offence abetted by conspiracy.39. For,
an offence under the second clause of this section a mere combination of persons or,
agreement is not enough; an act or illegal omission must take place in pursuance of,
the conspiracy. But for an offence under section 120A a mere agreement is enough if,
the agreement is to commit an offence.40.,
[s 107.10] Abetment and Conspiracy-Difference between.—,
"Criminal conspiracy postulates an agreement between two or more persons to do, or",
"cause to be done, an illegal act or an act which is not illegal, by illegal, means. It differs",
from other offences because mere agreement is made an offence even if no step is,
taken to carry out that agreement. Though there is close association of conspiracy with,
incitement and abetment the substantive offence of criminal conspiracy is somewhat,
"wider in amplitude than abetment by conspiracy as contemplated under section 107,",
"IPC, 1860.41. There is no analogy between section 120B and section 109, IPC, 1860.",
"There may be an element of abetment in a conspiracy, but conspiracy is something",
"more than an abetment. Offences created by sections 109 and 120B, iPC, 1860 are",
quite distinct and there is no warrant for limiting the prosecution to only one element of,
"conspiracy, that is, abetment when the allegation is that what a person did was",
something over and above that.42.,
"(3) Abetment by aid.—Third clause.—By act.—A person, it is trite, abets by aiding, when",
"by any act done either prior to, or at the time of the commission of an act, he intends to",
"facilitate and does in fact facilitate the commission thereof, would attract the third",
"clause of section 107 of the IPC, 1860. Doing something for the offender is not",
abetment. Doing something with knowledge so as to facilitate him to commit the crime,
or otherwise would constitute abetment.43. In order to constitute abetment by aiding,
"within the meaning of the third paragraph of section 107, IPC, 1860 the abettor must be",
shown to have intentionally aided the commission of the crime. A person may invite,
another casually or for a friendly purpose and that may facilitate the murder of the,
invitee. But unless it is shown that the invitation was extended with a view to facilitate,
"the commission of the murder, it cannot be said that the person extending the",
"invitation had abetted the murder. The language used in the section is ""intentionally",
"aids"" and therefore, active complicity is the gist of the offence of abetment under the",
"third paragraph of section 107, IPC, 1860.44. Abetment includes instigating any person",
to do a thing or engaging with one or more persons in any conspiracy for the doing of a,
"thing, if an act or illegal omission takes place in pursuance of that conspiracy and in",
"order to the doing of that thing, or intentional aid by any act or illegal omission to the",
"doing of that thing. On facts held, in the instant case, there was no direct evidence to",
establish that the appellant either aided or instigated the deceased to commit suicide,
or entered into any conspiracy to aid her in committing suicide.45. Where the principal,
offender killed the victim with a knife provided by the defendant who later claimed that,
"he thought the knife would be used only to threaten, the defendant's conviction for",
"murder was upheld, the Court of Appeal saying that the trial judge was correct to direct",
the jury that the defendant could be so convicted if he contemplated that the principal,
offender might kill or cause serious bodily harm to the victim as part of their joint,
enterprise.46. It is not necessary that the abettor should be present at the place of the,
occurrence. It is also not necessary to show that the secondary party to a conspiracy to,
murder intended the victim to be killed provided it is proved that he contemplated or,
foresaw the event as a real or substantial risk. Mere absence from the scene of the,
crime cannot amount to unequivocal communication of withdrawal from the,
enterprise. The accused was recruited with certain others by a person to kill his wife. At,
a predetermined time she was taken to the agreed place and killed. The accused was,
not present when the killing took place. It was held that he was rightly convicted in that,
he had lent encouragement and assistance before the commission of the crime.47.,
[s 107.11] By illegal omission.—,
"The definition of abetment as given in section 107, IPC, 1860 not only includes",
instigation but also intentional aiding by an illegal omission.48. A lady advocate was,
"attending the chamber of her senior advocate, the accused. On the day of the incident",
"she was talking with the accused at her residence. At that moment in his presence, she",
poured kerosene on her and set herself on fire. The accused did nothing to save her. It,
"was held that this did not amount to ""illegal omission"". He was held not guilty of",
abetment of suicide.49.,
[s 107.12] Abetment of offences under other laws.—,
The offence of aiding and abetting is applicable to all statutory offences unless,
specifically excluded by statute and accordingly it was held to apply to offences,
"created by the [English] Public Order Act, 1986.50. An abetment of an offence under the",
"Prevention of Corruption Act, 1988 can be made by a non-public servant. Abettors are",
to be prosecuted through trial under the Prevention of Corruption Act.51.,
[s 107.13] CASES.—By act.—Presence at bigamous marriage.—,
Mere presence at the scene of a bigamous marriage without any evidence of,
instigation aiding or conspiring would not amount to abetment.52. Where the accused,
held the antarpat (screen) during the performance of a marriage which he knew was a,
"void marriage under section 494, it was held that his act amounted to an act of",
intentional aid and fell within the purview of the explanation.53.,
[s 107.14] Presence at exhibition of blue film.—,
While entering into the parlour the accused was not aware of the type of film under,
"exhibition. Immediately after his entry, the police raided the parlour and charge-sheeted",
"him as an abettor of offences under sections 292, 293 and 294 because blue films",
were under exhibition. Following the Supreme Court decision in Shri Ram v State of,
"UP,54. the Court held that something more must be shown than mere presence.",
[s 107.15] Rape-Abetment.—,
"In a case of custodial rape, husband and wife, taken into police custody, were kept in",
separate rooms. The wife was raped by the head constable while the accused,
constable kept watch over the husband and did nothing hearing the shrieks of the,
victim wife. Conviction of the accused constable for abetting commission of rape was,
upheld.55.,
[s 107.16] Humiliation.—,
The accused persons caused constant humiliation to the deceased by accusing him of,
theft of things belonging to relatives at a marriage occasion. He committed suicide,
after returning from marriage. The humiliation caused by the accused was held to be,
not such as to amount to instigation which could have induced the deceased to,
commit suicide.56.,
[s 107.17] Attempt.—,
"Merely because the section opens with the words ""if any person commits suicide"" it",
cannot be held that in a case of unsuccessful suicide there is no attempt to abet the,
commission of suicide. Suicide and its attempt on the one hand and abetment of,
commission of suicide and its attempt on the other are treated differently by law and,
"therefore, the one who abets the commission of an unsuccessful attempt to commit",
suicide cannot be held to be punishable merely under section 309 read with section,
"116, IPC, 1860. To implement the scheme of law he has got to be held to be punishable",
"under section 306 read with section 511, IPC, 1860. The Supreme Court has never laid",
down in Satvir Singh57. that under no circumstance an offence under section 306 read,
"with section 511, IPC, 1860 can be committed. The Supreme Court did not have",
occasion to consider whether a conviction for an offence of attempt to abet the,
"commission of suicide is punishable under section 306 read with section 511, IPC,",
1860.58.,
"1. Kartar Singh v State of Punjab, (1994) 3 SCC 569 : 1994 Cr LJ 3139 : (1994) 1 SCC (Cr) 899.",
"2. Faguna Kanto, 1959 Cr LJ 917 : AIR 1959 SC 673 [LNIND 1959 SC 2] .",
"3. Jamuna Singh v State of of Bihar, AIR 1967 SC 553 [LNIND 1966 SC 202] : 1967 Cr LJ 541 .",
"4. Faguna Kanta Nath v State of Assam, AIR 1959 SC 673 [LNIND 1959 SC 2] : 1959 Supp 2 SCR",
1 : 1959 Cr LJ 917 .,
"5. Jamuna Singh v State of Bihar, AIR 1967 SC 553 [LNIND 1966 SC 202] : 1967 Cr LJ 541 .",
"6. Citing Madan Raj Bhandari v State of Rajasthan, AIR 1970 SC 436 [LNIND 1969 SC 230] : 1970",
Cr LJ 519 where the abettor of inducing miscarriage was acquitted when the person causing,
"miscarriage was acquitted. In Ex-Sepoy Haradhan Chakrabarty v UOI, AIR 1990 SC 1210 [LNIND",
"1990 SC 57] : (1990) 2 SCC 143 [LNIND 1990 SC 57] , it was held that abetment fails when",
substantive offence is not established against the principal offender.,
"7. Wazir Chand v State of Haryana, AIR 1989 SC 378 [LNIND 1988 SC 569] : 1989 Cr LJ 809 :",
(1989) 1 SCC 244 [LNIND 1988 SC 569] .,
"8. Kishori Lal v State of MP, (2007) 10 SCC 797 [LNIND 2007 SC 800] : AIR 2007 SC 2457",
[LNIND 2007 SC 800] : (2007) 3 Ker LT 259 .,
"9. State of Punjab v Iqbal Singh, AIR 1991 SC 1532 [LNIND 1991 SC 279] ; Surender v State of",
"Hayana, (2006) 12 SCC 375 [LNIND 2006 SC 1015] ; Kishori Lal v State of MP, AIR 2007 SC 2457",
"[LNIND 2007 SC 800] ; and Sonti Rama Krishna v Sonti Shanti Sree, AIR 2009 SC 923 [LNIND",
2008 SC 2319] .,
"10. B Ammu v State of TN, 2009 Cr LJ 866 (Mad); Chitresh Kumar Chopra v State (Government of",
"NCT of Delhi), AIR 2010 SC 1446 [LNIND 2009 SC 1663] .",
"11. Shri Ram v State of UP, AIR 1975 SC 175 [LNIND 1974 SC 349] : 1975 Cr LJ 240 (SC) quoted",
"in Jasobant Narayan Mohapatra v State of Orissa, 2009 Cr LJ 1043 (Ori); Benupani Behera v State,",
1992 (1) Ori LR 571 .,
"12. Rajat Prasad v CBI, 2014 Cr LJ 2941 : 2014 (5) Scale 574 [LNIND 2014 SC 467] .",
"13. Amiruddin, (1922) 24 Bom LR 534 [LNIND 1922 BOM 98] , 542.",
"14. Chitresh Kumar Chopra v State (Government of NCT of Delhi), AIR 2010 SC 1446 [LNIND 2009",
"SC 1663] ; Kishangiri Mangalgiri Goswami v State of Gujarat, (2009) 4 SCC 52 [LNIND 2009 SC",
193] : (2009) 1 SCR 672 [LNIND 2009 SC 193] : AIR 2009 SC 1808 2009 Cr LJ 1720.,
"15. Goura Venkata Reddy v State of AP, (2003) 12 SCC 469 [LNIND 2003 SC 1004] .",
"16. Rajib Neog v State of Assam, 2011 Cr LJ 399 (Gau).",
"17. Ganesh D Savarkar, (1909) 12 Bom LR 105 .",
"18. Ram Singh v State, 1997 Cr LJ 1406 (P&H), the complainant (wife) alleged that her in-laws",
incited her husband to marry over again. There was no evidence to show that they negotiated or,
"arranged the second marriage, nor of their presence at the time of performance of second",
"marriage. Complaint quashed. See also Darbar Singh v State of Chhattisgarh, 2013 Cr LJ 1612",
(Chh).,
"19. Netai Dutta v State of WB, AIR 2005 SC 1775 [LNIND 2005 SC 208] : (2005) 2 SCC 659",
"[LNIND 2005 SC 208] ; Amit Kapoor v Ramesh Chander, JT 2012 (9) SC 312 [LNIND 2012 SC 564]",
: 2012 (9) Scale 58 [LNIND 2012 SC 564] : (2012) 9 SCC 460 [LNIND 2012 SC 564] .,
"20. Rasookoollah, (1869) 12 WR (Cr) 51. Where the accused had instigated three persons to",
"commit murder, his conviction under sections 307/109 was upheld. Hemant Kumar Mondal v",
"State of WB, 1993 Cr LJ 82 (Cal).",
"21. M Mohan v State, Represented by the Deputy Superintendent of Police, (2011) 3 SCC 626",
[LNIND 2011 SC 246] : 2011 (3) Scale 78 [LNIND 2011 SC 246] : AIR 2011 SC 1238 [LNIND 2011,
"SC 246] : 2011 Cr LJ 1900 ; Amalendu Pal v State of WB, (2010) 1 SCC 707 [LNIND 2009 SC",
"1978] ; Rakesh Kumar v State of Chhattisgarh, (2001) 9 SCC 618 [LNIND 2001 SC 2368] , Gangula",
"Mohan Reddy v State of AP, (2010) 1 SCC 750 [LNIND 2010 SC 3] ; Thanu Ram v State of MP,",
2010 (10) Scale 557 [LNIND 2010 SC 962] : (2010) 10 SCC 353 [LNIND 2010 SC 962] : (2010) 3,
"SCC (Cr) 1502; SS Chheena v Vijay Kumar Mahajan, (2010) 12 SCC 190 [LNIND 2010 SC 746] :",
"(2010 AIR SCW 4938); Sohan Raj Sharma v State of Haryana, AIR 2008 SC 2108 [LNIND 2008 SC",
845] : (2008) 11 SCC 215 [LNIND 2008 SC 845] .,
"22. Dammu Sreenu v State of AP, AIR 2009 SC 3728 : (2009) 14 SCC 249 [LNIND 2009 SC 1356]",
.,
"23. Gurbachan Singh v Satpal Singh, (1990) 1 SCC 445 [LNIND 1989 SC 475] : AIR 1990 SC 209",
[LNIND 1989 SC 475] : 1990 Cr LJ 562 .,
"24. Ibid, (1990) 1 SCC 445 [LNIND 1989 SC 475] at p 458 : AIR 1990 SC 209 [LNIND 1989 SC",
475] : 1990 Cr LJ 562 .,
"25. Brijlal v Prem Chand, AIR 1989 SC 1661 [LNIND 1989 SC 243] : (1989) Supp 2 SCC 680. But",
"where there was no evidence of dowry demands, self immolation by the married woman within",
"two years of marriage was held to be her personal act. Padmabai v State of MP, 1987 Cr LJ 1573",
(MP).,
"26. Bhagwan Das v Kartar Singh, AIR 2007 SC 2045 [LNIND 2007 SC 650] ; Dayalan Babu v State,",
2011 Cr LJ 359 (Mad).,
"27. Paramjeetsingh Chawala v State of MP, 2007 Cr Lj 3343 (MP).",
"28. Vedprakash Bhaiji v State of MP, 1995 Cr LJ 893 (MP). Netai Dutta v State of WB, 2005 Cr LJ",
"1737 , no averment that the employer had withheld salary, or of aiding or instigating suicide,",
proceedings against employer to be quashed.,
"29. Sanju v State of MP, 2002 Cr LJ 2796 : AIR 2002 SC 1998 [LNIND 2002 SC 357] (Supp).",
"30. Bura Manohar v State of AP, 2002 Cr LJ 3322 (AP); Central Bureau of Investigation v VC",
"Shukla, 1998 Cr LJ 1905 : AIR 1998 SC 1406 [LNIND 1998 SC 272] ; Bapurao v State of",
"Maharashtra, 2003 Cr LJ 2181 (Bom).",
"31. Chitresh Kumar Chopra v State (Govt. of NCT of Delhi), 2009 (16) SCC 605 [LNIND 2009 SC",
1663] : AIR 2010 SC 1446 [LNIND 2009 SC 1663] .,
"32. Ramesh Kumar v State of Chhattisgarh, AIR 2001 SC 3837 [LNIND 2001 SC 2368] : (2001) Cr",
LJ 4724 .,
"33. State of MP v Shrideen Chhatri Prasad Suryawanshi, 2012 Cr LJ 2106 (MP); Jetha Ram v",
"State of Rajasthan, 2012 Cr LJ 2459 (Raj); Kailash Baburao Pandit v State of Maharashtra, 2011 Cr",
LJ 4044 (Bom).,
"34. Vijay Kumar Rastogi v State of Rajasthan, 2012 Cr LJ 2342 (Raj).",
"35. Praveen Pradhan v State of Uttaranchal, (2012) 9 SCC 734 [LNIND 2012 SC 612] : 2012 (9)",
Scale 745 : 2012 Cr LJ 4925 .,
"36. Per Willes J, in Mulcahy, (1868) LR 3 HL 306, 317. See Quinn v Leathem, (1901) AC 495 ,",
529.,
"37. Explanation 5 to section 108; Kalil Munda, (1901) 28 Cal 797 .",
"38. Ameer Khan, (1871) 17 WR (Cr) 15.",
"39. Tirumal Reddi, (1901) 24 Mad 523, 546.",
"40. Pramatha Nath v Saroj Ranjan, AIR 1962 SC 876 [LNIND 1961 SC 400] : 1962 (1) Cr LJ 770 .",
"See CBI v VC Shukla, AIR 1998 SC 1406 [LNIND 1998 SC 272] : (1998) 3 SCC 410 [LNIND 1998",
SC 272] ; Abetment by conspiracy not made out.,
"41. Noor Mohammad Mohd. Yusuf Momin v State of Maharashtra, AIR 1971 SC 885 [LNIND 1970",
SC 155] : (1970) 1 SCC 696 [LNIND 1970 SC 155] .,
"42. State of AP v Kandimalla Subbaiah, AIR 1961 SC 1241 [LNIND 1961 SC 95] : 1962 (1) SCR",
194 [LNIND 1961 SC 95] .,
"43. State of MP v Mukesh, (2006) 13 SCC 197 [LNIND 2006 SC 844] : (2007) 2 SCC (Cr) 680.",
"44. Shri Ram, 1975 Cr LJ 240 : AIR 1975 SC 175 [LNIND 1974 SC 349] ; See also Trilokchand,",
1977 Cr LJ 254 : AIR 1977 SC 666 [LNIND 1975 SC 278] .,
"45. Rajbabu v State of MP, (2008) 17 SCC 526 [LNIND 2008 SC 1499] : AIR 2008 SC 3212",
[LNIND 2008 SC 1499] : 2008 Cr LJ 4301 : (2008) 69 AIC 65 .,
"46. R v State, (1989) 3 All ER 90 CA. The Court considered the decisions in Chan Wing Sui v R,",
"(1984) 3 All ER 877 and Hyam v DPP, (1974) 2 All ER 41 . Krishan Lal v UOI, 1994 Cr LJ 3472 ,",
intentional aiding.,
"47. R v Rook, (1993) 1 WLR 1005 (CA).",
"48. Jamnalal Pande v State of MP, 2010 Cr LJ 538 (MP).",
"49. Surendra Agnihotri v State of MP, 1998 Cr LJ 4443 (MP).",
"50. R v Jefferson, The Times, 22 June 1993 (CA).",
"51. P Nallammal v State, AIR 1999 SC 2556 [LNIND 1999 SC 660] : 1999 Cr LJ 3967 .",
"52. Muthammal, 1981 Cr LJ 833 (Mad) : 1981 Mad LW (Cr) 80 ; Karuppiah v Nagawalli, 1982",
Mad LJ (Cr) 19 : 1982 Cr LJ 1362 : 2004 Cr LJ 4272 (Kar).,
"53. Malan, (1957) 60 Bom LR 428 .",
"54. Shri Ram v State of UP, AIR 1975 SC 175 [LNIND 1974 SC 349] : 1975 Cr LJ 240 .",
"55. Ram Kumar v State of HP, AIR 1995 SC 1965 : 1995 Cr LJ 3621 : 1995 Supp (4) SCC 67 .",
"56. Neelam v State of AP, 2003 Cr LJ (NOC) 160 (AP) : (2002) 2 Andh LT (Cr) 186 .",
"57. Satvir Singh v State of Punjab, AIR 2001 SC 2828 [LNIND 2001 SC 2168] : (2001) 8 SCC 633",
[LNIND 2001 SC 2168] .,
"58. Berin P Varghese v State, 2008 Cr LJ 1759 .",
THE INDIAN PENAL CODE,
CHAPTER V OF ABETMENT,
[s 108] Abettor.,
"A person abets an offence, who abets either the commission of an offence, or the",
"commission of an act which would be an offence, if committed by a person capable by",
law of committing an offence with the same intention or knowledge as that of the,
abettor.,
Explanation 1.—The abetment of the illegal omission of an act may amount to an,
offence although the abettor may not himself be bound to do that act.,
Explanation 2.—To constitute the offence of abetment it is not necessary that the act,
"abetted should be committed, or that the effect requisite to constitute the offence",
should be caused.,
ILLUSTRATIONS,
(a) A instigates B to murder C. B refuses to do so. A is guilty of abetting B to,
commit murder.,
(b) A instigates B to murder D. B in pursuance of the instigation stabs D. D recovers,
from the wound. A is guilty of instigating B to commit murder.,
Explanation 3.—It is not necessary that the person abetted should be capable by law,
"of committing an offence, or that he should have the same guilty intention or",
"knowledge as that of the abettor, or any guilty intention or knowledge.",
ILLUSTRATIONS,
"(a) A, with a guilty intention, abets a child or a lunatic to commit an act which would",
"be an offence, if committed by a person capable by law of committing an",
"offence, and having the same intention as A. Here A, whether the act be",
"committed or not, is guilty of abetting an offence.",
"(b) A, with the intention of murdering Z, instigates B, a child under seven years of",
"age, to do an act which causes Z's death. B, in consequence of the abetment,",
does the act in the absence of A and thereby causes Z's death. Here though B,
"was not capable by law of committing an offence, A is liable to be punished in",
"the same manner as if B had been capable by law of committing an offence, and",
"had committed murder, and he is therefore subject to the punishment of death.",
"(c) A instigates B to set fire to a dwelling-house. B, in consequence of the",
"unsoundness of his mind, being incapable of knowing the nature of the act, or",
"that he is doing what is wrong or contrary to law, sets fire to the house in",
"consequence of A's instigation. B has committed no offence, but A is guilty of",
"abetting the offence of setting fire to a dwelling-house, and is liable to the",
punishment provided for that offence.,
"(d) A, intending to cause a theft to be committed, instigates B to take property",
belonging to Z out of Z's possession. A induces B to believe that the property,
"belongs to A. B takes the property out of Z's possession, in good faith, believing",
"it to be A's property. B, acting under this misconception, does not take",
"dishonestly, and therefore does not commit theft. But A is guilty of abetting",
"theft, and is liable to the same punishment as if B had committed theft.",
"Explanation 4.—The abetment of an offence being an offence, the abetment of such",
an abetment is also an offence.,
ILLUSTRATION,
"A instigates B to instigate C to murder Z. B accordingly instigates C to murder Z, and C",
commits that offence in consequence of B's instigation. B is liable to be punished for,
"his offence with the punishment for murder; and, as A instigated B to commit the",
"offence, A is also liable to the same punishment.",
Explanation 5.—It is not necessary to the commission of the offence of abetment by,
conspiracy that the abettor should concert the offence with the person who commits,
it. It is sufficient if he engages in the conspiracy in pursuance of which the offence is,
committed.,
ILLUSTRATION,
A concerts with B a plan for poisoning Z. It is agreed that A shall administer the poison.,
"B then explains the plan to C mentioning that a third person is to administer the poison,",
"but without mentioning A's name. C agrees to procure the poison, and procures and",
delivers it to B for the purpose of its being used in the manner explained. A administers,
"the poison; Z dies in consequence. Here, though A and C have not conspired together,",
yet C has been engaged in the conspiracy in pursuance of which Z has been murdered.,
C has therefore committed the offence defined in this section and is liable to the,
punishment for murder.,
COMMENTS.—,
"Abetment under the IPC, 1860 involves active complicity on the part of the abettor at a",
"point of time prior to the actual commission of the offence,59. and it is of the essence",
of the crime of abetment that the abettor should substantially assist the principal,
"culprit towards the commission of the offence. Nowhere, concurrence in the criminal",
acts of another without such participation therein as helps to give effect to the criminal,
"act or purpose, is punishable under the Code.",
"'Abettor', under this section, means the person who abets (1) the commission of an",
"offence, or (2) the commission of an act, which would be an offence if committed by a",
person not suffering from any physical or mental incapacity. In the light of the,
preceding section he must be an instigator or a conspirator or an intentional helper.,
"Merely because the accused's brother was carrying on criminal activities in her house,",
the appellant cannot be held guilty unless there is some material to show her,
complicity.60.,
Explanation 1.—If a public servant is guilty of an illegal omission of duty made,
"punishable by the Code, and a private person instigates him, then he abets the offence",
"of which such public servant is guilty, though the abettor, being a private person, could",
not himself have been guilty of that offence.,
Explanation 2.—The question regarding abettor's guilt depends on the nature of the act,
abetted and the manner in which abetment was made. Commission of the act abetted,
is not necessary for the offence of abetment.61. The offence of abetment is complete,
"notwithstanding that the person abetted refuses to do the thing, or fails involuntarily in",
"doing it, or does it and the expected result does not follow. The offence of abetment by",
"instigation depends upon the intention of the person who abets, and not upon the act",
which is actually done by the person whom he abets.,
Explanation 3.—This explanation makes it clear that the person abetted need not have,
any guilty intention in committing the act abetted. It applies to abetment generally and,
there is nothing to indicate that it applies only to abetment by instigation and not to,
other kinds of abetment.62. The offence of abetment depends upon the intention of the,
person who abets and not upon the knowledge or intention of the person he employs to,
act for him.,
"Explanation 4.—This Explanation is to be read as follows: ""When the abetment of an",
"offence is an offence the abetment of such an abetment is also an offence"". In view of",
"Explanation 4 appended under section 108 of the IPC, 1860 the contention of accused",
that there cannot be any abetment of an abetment and it is unknown to criminal,
"jurisprudence, holds no water and merits no consideration.63.",
[s 108.1] Abetment of attempt to commit suicide.—,
Section 306 prescribes punishment for abetment of suicide while section 309 punishes,
attempt to commit suicide. Abetment of attempt to commit suicide is outside the,
purview of section 306 and it is punishable only under section 309 and read with,
"section 107, IPC, 1860.64.",
[s 108.2] Euthanasia.—,
Assisted suicide and assisted attempt to commit suicide are made punishable for,
cogent reasons in the interest of society. Such a provision is considered desirable to,
also prevent the danger inherent in the absence of such a penal provision.65. But in,
"Aruna Ramchandra Shanbaug v UOI,66. the Supreme Court held that passive euthanasia",
can be allowed under exceptional circumstances under the strict monitoring of the,
"Court. In March 2018, a five-judge Constitution Bench of the Supreme Court gave legal",
"sanction to passive euthanasia, permitting 'living will' by patients.67.",
[s 108.3] Political murder.—,
The accused were poor villagers who were brainwashed and became tools for,
committing crimes. The leaders who called for revenge were not charge sheeted and,
they got off scot-free. Even their names were not revealed as they were political head-,
weight. Such leaders who prompt the followers to commit crimes should be charge,
sheeted for abetment of offence for murder.,
[s 108.4] Abetment is substantive offence.—,
"The offence of abetment is a substantive one and the conviction of an abettor is,",
"therefore, in no way dependent on the conviction of the principal.68. It cannot be held in",
law that a person cannot ever be convicted of abetting a certain offence when the,
person alleged to have committed that offence in consequence of the abetment has,
been acquitted. The question of the abettor's guilt depends on the nature of the act,
"abetted and the manner in which the abetment was made. Under section 107, IPC,",
1860 a person abets the doing of an act in either of three ways which can be:,
instigating any person to do an act; or engaging with one or more person in any,
conspiracy for the doing of that act; or intentionally aiding the doing of that act. If a,
person instigates another or engages with another in a conspiracy for the doing of an,
"act which is an offence, he abets such an offence and would be guilty of abetment",
"under section 115 or section 116, IPC, 1860 even if the offence abetted is not",
committed in consequence of the abetment. The offence of abetment is complete,
when the alleged abettor has instigated another or engaged with another in a,
conspiracy to commit the offence. It is not necessary for the offence of abetment that,
the act abetted must be committed. This is clear from Explanation 2 and illustration (a),
"thereto, to section 108, IPC, 1860. It is only in the case of a person abetting an offence",
by intentionally aiding another to commit that offence that the charge of abetment,
against him would be expected to fail when the person alleged to have committed the,
offence is acquitted of that offence.69.,
"59. Molazim Tewari, (1961) 2 Cr LJ 266 .",
"60. Marry Perara Lilly v State, (1987) Supp1 SCC 182 : (1988) 1 SCC (Cr) 56.",
"61. Sundar v State of UP, 1995 Cr LJ 3481 (All), relying on Sukh Ram v State of MP., 1989 SCC",
(Cr) 357 : AIR 1989 SC 772 [LNIND 2016 MP 593] .,
"62. Chaube Dinkar Rao, (1933) 55 All 654 .",
"63. Gundala Reddeppa Naidu v State of AP, 2005 Cr LJ 4702 (AP).",
"64. Gian Kaur v State of Punjab, AIR 1996 SC 946 [LNIND 1996 SC 653] : (1996) 2 SCC 648",
[LNIND 1996 SC 653] .,
"65. The Constitution Bench Gian Kaur v State of Punjab, 1996 (2) SCC 648 [LNIND 1996 SC 653]",
held that both euthanasia and assisted suicide are not lawful in India which overruled the two,
"Judge Bench decision of the Supreme Court in P Rathinam v UOI, AIR 1994 SC 1844 [LNIND",
1994 SC 1533] : 1994 (3) SCC 394 [LNIND 1994 SC 1533] . The Court held that the right to life,
under Article 21 of the Constitution does not include the right to die.,
"66. Aruna Ramchandra Shanbaug v UOI, (2011) 4 SCC 454 [LNIND 2011 SC 265] : AIR 2011 SC",
1290 [LNIND 2011 SC 265] .,
"67. Common Cause (A Registered Society) v UOI, (2018) 5 SCC 1 [LNIND 2018 SC 87] .",
"68. Gallu Saheb v State of Bihar, AIR 1958 SC 813 [LNIND 1958 SC 76] ; Maruti Dada, (1875) 1",
"Bom 15; Sahib Ditta, (1885) PR No. 20 of 1885.",
"69. Jamuna Singh v State of Bihar, AIR 1967 SC 553 [LNIND 1966 SC 202] : 1967 Cr LJ 541 .",
THE INDIAN PENAL CODE,
CHAPTER V OF ABETMENT,
70.[s 108A] Abetment in India of offences outside India.,
"A person abets an offence within the meaning of this Code who, in 71.[India], abets the",
commission of any act without and beyond 72.[India] which would constitute an,
offence if committed in 73.[India].,
ILLUSTRATION74.,
"A, in 75.[India], instigates B, a foreigner in Goa, to commit a murder in Goa. A is guilty of",
abetting murder.],
COMMENTS.—,
This section makes an abetment in India by a citizen of India of an act committed in a,
"foreign territory an offence punishable under the IPC, 1860 if it would constitute an",
offence if committed in India. This illustration has become somewhat obsolete as Goa,
is now a part of Indian territory and not a foreign country as it was when this illustration,
was formulated.,
"70. Added by Act 4 of 1898, section 3.",
"71. The words ""British India"" have successively been subs. by the A.O. 1948, the A.O. 1950 and",
"Act 3 of 1951, section 3 and Sch. (w.e.f. 1–4–1951), to read as above.",
"72. The words ""British India"" have successively been subs. by the A.O. 1948, the A.O. 1950 and",
"Act 3 of 1951, section 3 and Sch. (w.e.f. 1–4–1951), to read as above.",
"73. The words ""British India"" have successively been subs. by the A.O. 1948, the A.O. 1950 and",
"Act 3 of 1951, section 3 and Sch. (w.e.f. 1 April 1951), to read as above.",
"74. This Illustration is inappropriate as Goa, which was a Portuguese colony at the time of the",
British imperial enactment now forms part of the Union Territory.—Ed.,
"75. The words ""British India"" have successively been subs. by the A.O. 1948, the A.O. 1950 and",
"Act 3 of 1951, section 3 and Sch. (w.e.f. 1 April 1951), to read as above.",
THE INDIAN PENAL CODE,
CHAPTER V OF ABETMENT,
70.[s 108A] Abetment in India of offences outside India.,
"A person abets an offence within the meaning of this Code who, in 71.[India], abets the",
commission of any act without and beyond 72.[India] which would constitute an,
offence if committed in 73.[India].,
ILLUSTRATION74.,
"A, in 75.[India], instigates B, a foreigner in Goa, to commit a murder in Goa. A is guilty of",
abetting murder.],
COMMENTS.—,
This section makes an abetment in India by a citizen of India of an act committed in a,
"foreign territory an offence punishable under the IPC, 1860 if it would constitute an",
offence if committed in India. This illustration has become somewhat obsolete as Goa,
is now a part of Indian territory and not a foreign country as it was when this illustration,
was formulated.,
"70. Added by Act 4 of 1898, section 3.",
"71. The words ""British India"" have successively been subs. by the A.O. 1948, the A.O. 1950 and",
"Act 3 of 1951, section 3 and Sch. (w.e.f. 1–4–1951), to read as above.",
"72. The words ""British India"" have successively been subs. by the A.O. 1948, the A.O. 1950 and",
"Act 3 of 1951, section 3 and Sch. (w.e.f. 1–4–1951), to read as above.",
"73. The words ""British India"" have successively been subs. by the A.O. 1948, the A.O. 1950 and",
"Act 3 of 1951, section 3 and Sch. (w.e.f. 1 April 1951), to read as above.",
"74. This Illustration is inappropriate as Goa, which was a Portuguese colony at the time of the",
British imperial enactment now forms part of the Union Territory.—Ed.,
"75. The words ""British India"" have successively been subs. by the A.O. 1948, the A.O. 1950 and",
"Act 3 of 1951, section 3 and Sch. (w.e.f. 1 April 1951), to read as above.",
THE INDIAN PENAL CODE,
CHAPTER V OF ABETMENT,
[s 109] Punishment of abetment if the act abetted is committed in,
consequence and where no express provision is made for its punishment.,
"Whoever abets any offence shall, if the act abetted is committed in consequence of",
"the abetment, and no express provision is made by this Code for the punishment of",
"such abetment, be punished with the punishment provided for the offence.",
"Explanation.—An act or offence is said to be committed in consequence of abetment,",
"when it is committed in consequence of the instigation, or in pursuance of the",
"conspiracy, or with the aid which constitutes the abetment.",
ILLUSTRATIONS,
"(a) A offers a bribe to B, a public servant, as a reward for showing A some favour in",
the exercise of B's official functions. B accepts the bribe. A has abetted the,
offence defined in section 161.,
"(b) A instigates B to give false evidence. B, in consequence of the instigation,",
"commits that offence. A is guilty of abetting that offence, and is liable to the",
same punishment as B.,
"(c) A and B conspire to poison Z. A, in pursuance of the conspiracy, procures the",
"poison and delivers it to B in order that he may administer it to Z. B, in pursuance",
"of the conspiracy, administers the poison to Z in A's absence and thereby causes",
Z's death. Here B is guilty of murder. A is guilty of abetting that offence by,
"conspiracy, and is liable to the punishment for murder.",
COMMENTS.—,
Under this section the abettor is liable to the same punishment as that which may be,
"inflicted on the principal offender, (1) if the act of the latter is committed in",
"consequence of the abetment, and (2) no express provision is made in the Code for the",
"punishment of such an abetment. Section 109, IPC, 1860 becomes applicable even if",
the abettor is not present when the offence abetted is committed provided that he has,
instigated the commission of the offence or has engaged with one or more other,
persons in a conspiracy to commit an offence and pursuant to that conspiracy some,
act or illegal omission takes place or has intentionally aided the commission of an,
offence by an act or illegal omission.76.,
[s 109.1] Scope.—,
"This section lays down nothing more than that if the IPC, 1860 has not separately",
provided for the punishment of abetment as such then it is punishable with the,
punishment provided for the original offence. Law does not require instigation to be in,
a particular form or that it should only be in words. The instigation may be by conduct.,
"Whether there was instigation or not, is a question to be decided on the facts of each",
case. It is not necessary in law for the prosecution to prove that the actual operative,
"cause in the mind of the person abetting was instigation and nothing else, so long as",
there was instigation and the offence has been committed or the offence would have,
been committed if the person committing the act had the same knowledge and,
intention as the abettor. The instigation must be with reference to the thing that was,
done and not to the thing that was likely to have been done by the person who is,
instigated. It is only if this condition is fulfilled that a person can be guilty of abetment,
"by instigation. Further, the act abetted should be committed in consequence of the",
abetment or in pursuance of the conspiracy as provided in the Explanation to section,
109. Under the Explanation an act or offence is said to be committed in pursuance of,
abetment if it is done in consequence of (a) instigation (b) conspiracy or (c) with the,
aid constituting abetment. Instigation may be in any form and the extent of the,
influence which the instigation produced in the mind of the accused would vary and,
depend upon facts of each case. The offence of conspiracy created under section,
120A is bare agreement to commit an offence. It has been made punishable under,
section 120B. The offence of abetment created under the second clause of section 107,
requires that there must be something more than mere conspiracy. There must be,
some act or illegal omission in pursuance of that conspiracy. That would be evident by,
"section 107 (second), ""engages in any conspiracy … for the doing of that thing, if an act",
"or omission took place in pursuance of that conspiracy"". The punishment for these two",
"categories of crimes is also quite different. Section 109, IPC, 1860 is concerned only",
with the punishment of abetment for which no express provision has been made in the,
"IPC, 1860. The charge under section 109 should, therefore, be along with charge for",
murder which is the offence committed in consequence of abetment. An offence of,
"criminal conspiracy is, on the other hand, an independent offence. It is made",
punishable under section 120B for which a charge under section 109 is unnecessary,
and inappropriate.77. Section 109 provides that if the act abetted is committed in,
consequence of abetment and there is no provision for the punishment of such,
abetment then the offender is to be punished with the punishment provided for the,
"original offence. ""Act abetted"" in section 109 means the specific offence abetted.",
"Therefore, the offence for the abetment of which a person is charged with the",
abetment is normally linked with the proved offence.78. The commission of the offence,
of rape in a hut then in possession of the accused was held to be not sufficient in itself,
to show that the accused abetted the offence.79.,
[s 109.2] Distinct offence.—,
Section 109 is by itself creative of an offence though it is punishable in the context of,
other offences. The accused was charged under sections 300 and 149. The Court said,
that he could not be convicted under section 300 with the aid of section 109. That,
would cause great prejudice to the accused in his defence.80. The offence for the,
abetment of which a person is charged with the abetment is normally linked with the,
"proved offence.81. A plain reading of sections 107–109 of the IPC, 1860 would show",
that act complained of in order to amount to abetment has to be committed either prior,
to or at the time of commission of the offences.82.,
"Where the appellant, the wife of a co-accused asked the prosecutrix, aged 15 years to",
"go to the house of the accused and to bring lassi, and when the prosecutrix reached",
"there, the co-accused, who were two in number, bolted the house from inside and",
"committed rape on her, it was held that the appellant was guilty of the offence of",
abetment. 83.,
[s 109.3] Failure to prevent is not abetment.—,
It has been held by the Supreme Court that a failure to prevent the commission of an,
offence is not an abetment of that offence. The Court said:,
Where a person aids and abets the perpetrator of a crime at the very time when the crime is,
"committed, he is a principal of the second degree and section 109 applies. But mere failure",
to prevent the commission of an offence is not by itself an abetment of that offence.,
"Considering the definition in section 109 strictly, the instigation must have reference to the",
thing that was done and not to the thing that was likely to have been done by the person,
who is instigated. It is only if this condition is fulfilled that a person can be guilty of,
abetment by instigation. Section 109 is attracted even if the abettor is not present when the,
offence abetted is committed provided that he had instigated the commission of the,
offence or had engaged with one or more other persons in a conspiracy to commit an,
offence and pursuant to the conspiracy some act or illegal omission takes place or,
intentionally induced the commission of an offence by an act or illegal omission. In the,
"absence of direct involvement, conviction for abetment is not sustainable. Section 109",
provides that if the act abetted is committed in consequence of abetment and there is no,
provision for the punishment of such abetment then the offender is to be punished with the,
punishment provided for the original offence. Section 109 applies even where the abettor is,
not present. Active abetment at the time of committing the offence is covered by section,
109.,
The words 'act abetted' as used in section 109 means the specific offence abetted. Mere,
help in the preparation for the commission of an offence which is not ultimately committed,
is not abetment within the meaning of section 109. 'Any offence' in section 109 means,
offence punishable under IPC or any special or local law. The abetment of an offence under,
"the special or local law, therefore, is punishable under section 109. For constituting offence",
"of abetment, intentional and active participation by the abettor is necessary.84.",
"When a person is charged with the abetment of an offence, it is normally linked with an",
offence which has been proved.85.,
[s 109.4] Procedure.—Failure to frame Charge.—,
"Section 109, IPC, 1860 is a distinct offence. Accused having faced trial for being a",
member of an unlawful assembly which achieved the common object of killing the,
"deceased, could in no event be substitutedly convicted for offence under section 302,",
"IPC, 1860 with the aid of section 109, IPC, 1860. There was obviously thus, not only a",
legal flaw but also a great prejudice to the appellant in projecting his defence.86.,
"Section 109, IPC, 1860 is by itself an offence though punishable in the context of other",
offences.87.,
[s 109.5] Sentence.—,
"When the act abetted is committed as a consequence of abetment, the abettor should",
be punished with the punishment provided for the main offence with the help of section,
"109, IPC, 1860 and even if a charge under section 120B, IPC, 1860 had been framed, no",
separate sentence under that section is called for.88. No distinction should be made in,
the quantum of sentence to be awarded to the principal offender and that awarded to,
the abettor.89.,
[s 109.6] Compoundable.—,
"When an offence is compoundable under section 320 of the Cr PC, 1973, the abetment",
of such may be compounded in like manner.90.,
[s 109.7] CASES.—,
"Where the accused instigated others to assault with deadly weapons and not to kill, he",
"should be convicted under section 324 read with section 109, IPC, 1860 and not under",
"section 307 read with section 109, IPC, 1860.91. Where the accused did not participate",
"in the act of rape but kept watch while others were committing the offence, and thereby",
"aided and abetted the commission of the crime instead of preventing it, he was held",
liable to be convicted under section 376 read with this section and not under section,
376 read with section 34.92.,
[s 109.8] Distinction between sections 109 and 114.—,
There is a distinction between section 109 and section 114. Section 114 applies where,
"a criminal first abets an offence to be committed by another person, and is",
subsequently present at its commission. Active abetment at the time of committing the,
offence is covered by section 109 and section 114 is clearly intended for an abetment,
"previous to the actual commission of the crime, that is, before the first steps have been",
taken to commit it.93.,
"76. NMMY Momin, 1971 Cr LJ 793 : AIR 1971 SC 885 [LNIND 1970 SC 155] . Where the accused",
suffered trial for the substantive offences of causing hurt under sections 328 and 272 by mixing,
"ethyl and methyl alcohol but his direct involvement was not established, section 109 was not",
"permitted to be pushed into service for convicting him for abetment; Joseph v State of Kerala,",
AIR 1994 SC 34 : 1994 Cr LJ 21 : 1995 SCC (Cr) 165.,
"77. Arjun Singh v State of HP, AIR 2009 SC 1568 [LNIND 2009 SC 252] : (2009) 4 SCC 18 [LNIND",
2009 SC 252] : (2009) 1 SCR 983 [LNIND 2009 SC 252] : 2009 (2) Scale 302 [LNIND 2009 SC,
"252] : 2009 Cr LJ 1332 . See Kehar Singh v The State (Delhi Admn.), AIR 1988 SC 1883 [LNIND",
"1988 SC 887] ; Kulwant Singh v State of Bihar, (2007) 15 SCC 670 [LNIND 2007 SC 820] .",
"78. Amit Kapoor v Ramesh Chander, JT 2012 (9) SC 312 [LNIND 2012 SC 564] : 2012 (9) Scale",
58 [LNIND 2012 SC 564] : (2012) 9 SCC 460 [LNIND 2012 SC 564] .,
"79. Ashok Nivruti Desai v State of Maharashtra, 1995 Cr LJ 826 (Bom). Jag Narain Prasad v State",
"of Bihar, 1998 Cr LJ 2553 : AIR 1998 SC 2879 [LNIND 1998 SC 387] , the accused charged with",
exhorting his son to kill the victim. The court said that it was not believable that an aged person,
would involve his son into crime for a trivial reason. Mere presence at the spot is not sufficient,
"to involve all the family members who were there. See also Manjula v Muni, 1998 Cr LJ 1476",
(Mad).,
"80. Wakil Yadav v State of Bihar, 1999 Cr LJ 5000 (SC). Arjun Singh v State of HP, (2009) 4 SCC",
"18 [LNIND 2009 SC 252] : AIR 2009 SC 1568 [LNIND 2009 SC 252] : 2009 Cr LJ 1332 ,",
"ingredients restated, the offence was not made out in this case.",
"81. Amit Kapoor v Ramesh Chander, JT 2012 (9) SC 312 [LNIND 2012 SC 564] : 2012 (9) Scale",
58 [LNIND 2012 SC 564] : (2012) 9 SCC 460 [LNIND 2012 SC 564] ; Kishangiri Mangalgiri Swami,
"v State of Gujarat, 2009 (4) SCC 52 [LNIND 2009 SC 193] .",
"82. Jasobant Narayan Mohapatra v State of Orissa, 2009 Cr LJ 1043 (Ori).",
"83. Om Prakash v State of Haryana, 2015 Cr LJ 586 : (2015) 2 SCC 84 [LNIND 2014 SC 887] .",
"84. Kulwant Singh v State of Punjab, (2007) 15 SCC 670 [LNIND 2007 SC 820] .",
"85. Goura Venkata Reddy v State of AP, (2003) 12 SCC 469 [LNIND 2003 SC 1004] , the appellant",
(accused) who instigated the other accused was convicted under section 304/109 and not,
under section 302/109.,
"86. Wakil Yadav v State of Bihar, (2000) 10 SCC 500 : 1999 AIR SCW 4694.",
"87. Joseph Kurian Philip Jose v State, (1994) 6 SCC 535 [LNIND 1994 SC 927] : AIR 1995 SC 4",
[LNIND 1994 SC 927] : 1995 Cr LJ 502 .,
"88. State of TN v Savithri, 1976 Cr LJ 37 (Mad).",
"89. Ashok Nivruti Desai v State of Maharashtra, (1995) 1 Cr LJ 826 (Bom). Vinit v State of",
"Maharashtra, (1994) 2 Cr LJ 1791 (Bom).",
"90. Section 320(3) Code of Criminal Procedure, 1973.",
"91. Jai Narain, 1972 Cr LJ 469 : AIR 1972 SC 1764 .",
"92. Nawabkhan v State of MP, 1990 Cr LJ 1179 MP; Jai Chand v State of HP, 2002 Cr LJ 2301",
"(HP); Munuswamy v State of TN, 2002 Cr LJ 3916 (SC) : AIR 2002 SC 2994 [LNIND 2002 SC 500]",
.,
"93. Kulwant Singh v State of Bihar, (2007) 15 SCC 670 [LNIND 2007 SC 820] ; Mathurala Adi",
"Reddy v State of Hyderabad, AIR 1956 SC 177 : 1956 Cr LJ 341 .",
THE INDIAN PENAL CODE,
CHAPTER V OF ABETMENT,
[s 110] Punishment of abetment if person abetted does act with different,
intention from that of abettor.,
"Whoever abets the commission of an offence shall, if the person abetted does the act",
"with a different intention or knowledge from that of the abettor, be punished with the",
punishment provided for the offence which would have been committed if the act had,
been done with the intention or knowledge of the abettor and with no other.,
COMMENTS.—,
This section provides that though the person abetted commits the offence with a,
different intention or knowledge yet the abettor will be punished with the punishment,
provided for the offence abetted. The liability of the person abetted is not affected by,
this section.,
Explanation 3 to section 108 should be read in conjunction with this section. See,
illustration (d) to that section.,
THE INDIAN PENAL CODE,
CHAPTER V OF ABETMENT,
[s 111] Liability of abettor when one act abetted and different act done.,
"When an act is abetted and a different act is done, the abettor is liable for the act",
"done, in the same manner and to the same extent as if he had directly abetted it:",
Proviso.,
"Provided the act done was a probable consequence of the abetment, and was",
"committed under the influence of the instigation, or with the aid or in pursuance",
of the conspiracy which constituted the abetment.,
ILLUSTRATIONS,
"(a) A instigates a child to put poison into the food of Z, and gives him poison",
"for that purpose. The child, in consequence of the instigation, by mistake",
"puts the poison into the food of Y, which is by the side of that of Z. Here, if",
"the child was acting under the influence of A's instigation, and the act done",
"was under the circumstances a probable consequence of the abetment, A is",
liable in the same manner and to the same extent as if he had instigated the,
child to put the poison into the food of Y.,
(b) A instigates B to burn Z's house. B sets fire to the house and at the same,
"time commits theft of property there. A, though guilty of abetting the",
"burning of the house, is not guilty of abetting the theft; for the theft was a",
"distinct act, and not a probable consequence of the burning.",
(c) A instigates B and C to break into an inhabited house at midnight for the,
"purpose of robbery, and provides them with arms for that purpose. B and C",
"break into the house, and being resisted by Z, one of the inmates, murder Z.",
"Here, if that murder was the probable consequence of the abetment, A is",
liable to the punishment provided for murder.,
COMMENTS.—,
Liability of abettor when different act done.—This section proceeds on the maxim,
"""every man is presumed to intend the natural consequences of his act"". If one man",
"instigates another to perpetrate a particular crime, and that other, in pursuance of such",
"instigation, not only perpetrates that crime, but, in the course of doing so, commits",
"another crime in furtherance of it, the former is criminally responsible as an abettor in",
"respect of such last-mentioned crime, if it is one which, as a reasonable man, he must,",
"at the time of the instigation, have known would, in the ordinary course of things,",
probably have to be committed in order to carry out the original crime. B and C,
instigated A to rob the deceased on his return to home after receiving a sum of money;,
whereupon A killed the deceased. A was convicted of murder and B and C of offences,
"under sections 109, 302.94. Where the act contemplated and instigated was no more",
"than a thrashing with a lathi, but one of the assailants suddenly took out a spearhead",
"from his pocket and fatally stabbed the person who was to be thrashed, the others",
were not held liable for murder or abetment of murder.95.,
"94. Mathura Das, (1884) 6 All 491 , 494.",
"95. Girja Prasad, (1934) 57 All 717 .",
THE INDIAN PENAL CODE,
CHAPTER V OF ABETMENT,
[s 112] Abettor when liable to cumulative punishment for act abetted and for,
act done.,
If the act for which the abettor is liable under the last preceding section is committed,
"in addition to the act abetted, and constitutes a distinct offence, the abettor is liable",
to punishment for each of the offences.,
ILLUSTRATION,
"A instigates B to resist by force a distress made by a public servant. B, in consequence,",
"resists that distress. In offering the resistance, B voluntarily causes grievous hurt to the",
officer executing the distress. As B has committed both the offences of resisting the,
"distress, and the offence of voluntarily causing grievous hurt, B is liable to punishment",
"for both these offences; and, if A knew that B was likely voluntarily to cause grievous",
hurt in resisting the distress A will also be liable to punishment for each of the,
offences.,
COMMENTS.—,
This section extends the principle enunciated in the preceding section. Under it the,
abettor is punished for the offence abetted as well as the offence committed. A joint,
"reading of sections 111, 112 and 133 make it abundantly clear that if a person abets",
another in the commission of an offence and the principal goes further thereafter and,
does something more which has a different result from that intended by the abettor,
"and makes the offence an aggravated one, the abettor is liable for the consequences of",
the acts of his principal. The crux of the problem in an enquiry of this sort is whether,
the abettor as reasonable man at the time of his instigation or intentionally aiding the,
principal would have foreseen the probable consequences of his abetment.96.,
"96. Re Irala Palle Ramiah, 1957 Cr LJ 815 (AP).",
THE INDIAN PENAL CODE,
CHAPTER V OF ABETMENT,
[s 113] Liability of abettor for an effect caused by the act abetted different,
from that intended by the abettor.,
When an act is abetted with the intention on the part of the abettor of causing a,
"particular effect, and an act for which the abettor is liable in consequence of the",
"abetment, caused a different effect from that intended by the abettor, the abettor is",
"liable for the effect caused, in the same manner and to the same extent as if he had",
"abetted the act with the intention of causing that effect, provided he knew that the act",
abetted was likely to cause that effect.,
ILLUSTRATION,
"A instigates B to cause grievous hurt to Z. B, in consequence of the instigation causes",
"grievous hurt to Z. Z dies in consequence. Here, if A knew that the grievous hurt",
"abetted was likely to cause death, A is liable to be punished with the punishment",
provided for murder.,
COMMENTS.—,
This section should be read in conjunction with section 111. Section 111 provides for,
"the doing of an act different from the one abetted, whereas this section deals with the",
case when the act done is the same as the act abetted but its effect is different.,
THE INDIAN PENAL CODE,
CHAPTER V OF ABETMENT,
[s 114] Abettor present when offence is committed.,
"Whenever any person who if absent would be liable to be punished as an abettor, is",
present when the act or offence for which he would be punishable in consequence of,
"the abetment is committed, he shall be deemed to have committed such act or",
offence.,
COMMENTS.—,
This section:,
is only brought into operation when circumstances amounting to abetment of a particular,
"crime have first been proved, and then the presence of the accused at the commission of",
"that crime is proved in addition … Section 114 deals with the case, where there has been the",
"crime of abetment, but where also there has been actual commission of the crime abetted",
"and the abettor has been present thereat, and the way in which it deals with such a case is",
"this. Instead of the crime being still abetment with circumstances of aggravation, the crime",
becomes the very crime abetted. The section is evidently not punitory. Because,
"participation de facto. … may sometimes be obscure in detail, it is established by the",
presumption Juris et de jure that actual presence plus prior abetment can mean nothing else,
but participation. The presumption raised by s. 114 brings the case within the ambit of s.,
34.97.,
"The meaning of this section is that if the nature of the act done constitutes abetment,",
"then, if present, the abettor is to be deemed to have committed the offence, though in",
point of fact another actually committed it. The abetment must be complete apart from,
"the mere presence of the abettor.98. The words ""who if absent would be liable to be",
"punished as an abettor"" clearly show that abetment must be one prior to the",
"commission of the offence and complete by itself.99. Where, for instance, a blow is",
"struck by A, in the presence of, and by the order of, B, both are principals in the",
"transaction. If A instigates B to murder, he commits abetment; if absent, he is",
"punishable as an abettor, and if the offence is committed, then under section 109; if",
"present, he is by this section deemed to have committed the offence and is punishable",
as a principal. This section applies to cases where a person abets the commission of,
the offence sometime before at a different place and also remains present at the time,
the offence is committed.100. But where a person is charged with abetment under this,
"section for aiding in the Commission of an offence, e.g., section 300 IPC, 1860 and the",
person charged as the principal offender is acquitted on the ground that he had not,
"committed the offence in question, no further question arises regarding abettor's",
liability.101.,
Section 114 is not applicable in every case in which the abettor is present at the,
commission of the offence abetted. While section 109 is a section dealing generally,
"with abetment, section 114 applies to those cases only in which not only is the abettor",
present at the time of the commission of the offence but abetment has been,
committed prior to and independently of his presence.102.,
[s 114.1] Sections 34 and 114.—,
The distinction between sections 34 and 114 is a very fine one. According to section,
"34, where a criminal act is done by several persons, in furtherance of the common",
"intention of all, each of them is liable as if it were done by himself alone; so that if two",
"or more persons are present, aiding and abetting in the commission of a murder each",
"will be tried and convicted as a principal, though it might not be proved which of them",
"actually committed the act. Section 114 refers to the case where a person by abetment,",
"previous to the commission of the act, renders himself liable as an abettor, is present",
"when the act is committed, but takes no active part in the doing of it.103. A mere",
direction from one person to another and the carrying out of that direction by the other,
may be only instigation of the latter's act and may not be a case of a joint act falling,
under section 34.104. Accused provided an axe to his son who assaulted the victim,
leading to his death. It was not a pre-meditated action on the part of main accused and,
appellant supplied axe instantaneously without considering its pros and cons.,
Conviction of appellant on charge of abetment (section 114) is not maintainable.105.,
"1. 'Present'.—It is not necessary that the party should be actually present, an ear or eye",
"witness of the transaction; he is, in construction of law, present, aiding and abetting, if,",
"with the intention of giving assistance, he be near enough to afford it, should occasion",
"arise. A conspirator, who, while his friends enter into a house and loot it, stands and",
"watches outside in pursuance of the common design, does not escape liability under",
"the section.106. Where, therefore, a person watched at the door of a house while a",
murder was being committed inside he would be guilty of murder.107.,
[s 114.2] Section 376 read with Section 114.—,
"In order to bring home such conviction under section 376, IPC, 1860 read with section",
"114, IPC, 1860 there must be evidence on record to show: (a) that there was abetment",
of rape to be committed; (b) that the abettors have factually abetted the commission of,
rape; and (c) that they were present at the time when the commission of rape took,
place.108.,
"97. Barendra Kumar Ghosh, (1924) 52 IA 40 , 53 : 27 Bom LR 148, 159 : 52 Cal 197.",
"98. Krishnaswami Naidu, (1927) 51 Mad 263. See Malanrama v State of Maharashtra, ILR 1958",
Bom 700 [LNIND 1957 BOM 189] : 1960 Cr LJ 1189 where it was held in the circumstances of,
the case that the mere presence of the accused at the ceremony knowing that the offence of,
bigamy was being committed and the throwing the holy rice over the couple did not amount to,
abetment of bigamy notwithstanding that one of the accused persons distributed pan after the,
"ceremony. Followed in CS Vardachari v CS Shanti, 1987 Cr LJ 1048 over similar facts.",
"99. Sital, (1935) 11 Luck 384 .",
"100. Nanboo v Kedar, AIR 1962 MP 91 [LNIND 1961 MP 109] .",
"101. Mahommed Jasimuddin, 1982 Cr LJ 1510 (Gau). See also State v Naroshbhai Haribhai",
"Tandel, 1997 Cr LJ 2783 (Guj).",
"102. Kulwant Singh v State of Bihar, (2007) 15 SCC 670 [LNIND 2007 SC 820] .",
"103. Jan Mahomed, (1864) 1 WR (Cr) 49; Nga Po Kyone, (1933) 11 Ran 354.",
"104. MA Reddy v State, AIR 1956 SC 177 : 1956 Cr LJ 341 .",
"105. Muklesur Rahaman v State, 2010 Cr LJ 4488 . Also see, Kalubhai Maganbhai Vaghela v State",
"of Gujarat, 2009 Cr LJ 2317 (Guj).",
"106. Khandu v State, (1899) 1 Bom LR 351 , 355.",
"107. Sidharth v State of Bihar, AIR 2005 SC 4352 [LNIND 2005 SC 752] : (2005) 12 SCC 545",
[LNIND 2005 SC 752] : 2005 Cr LJ 4499 : (2006) 1 SCC (Cr) 175. Also see Mukati Prasad Rai,
"alias Mukti Rai v State IR, 2005 SC 1271 : (2004) 13 SCC 144 : (2005) 1 SCC (Cr) 69; Awadh",
"Mahto v State of Bihar, 2007 Cr LJ 342 (Pat).",
"108. Mangiya v State of Rajasthan, 2000 Cr LJ 4814 (Raj).",
THE INDIAN PENAL CODE,
CHAPTER V OF ABETMENT,
[s 115] Abetment of offence punishable with death or imprisonment for life—if,
offence not committed.,
Whoever abets the commission of an offence punishable with death or 109.,
"[imprisonment for life] shall, if that offence be not committed in consequence of the",
"abetment, and no express provision1 is made by this Code for the punishment of such",
"abetmnt,2 be punished with imprisonment of either description for a term which may",
"extend to seven years, and shall also be liable to fine;",
If act causing harm be done in consequence.,
"and if any act for which the abettor is liable in consequence of the abetment, and",
"which causes hurt to any person, is done, the abettor shall be liable to",
imprisonment of either description for a term which may extend to fourteen,
"years, and shall also be liable to fine.",
ILLUSTRATION,
"A instigates B to murder Z. The offence is not committed. If B had murdered Z, he",
would have been subject to the punishment of death or 110.[imprisonment for life].,
Therefore A is liable to imprisonment for a term which may extend to seven years,
"and also to a fine; and if any hurt be done to Z in consequence of the abetment, he",
"will be liable to imprisonment for a term which may extend to fourteen years, and",
to fine.,
COMMENT.—,
This section punishes the abetment of certain offences which are either not committed,
"at all, or not committed in consequence of abetment or only in part committed.",
When more than ten persons are instigated to commit an offence punishable with,
"death, the offence comes under this section as well as under section 117. Abetment",
under this section need not necessarily be abetment of the commission of an offence,
by a particular person against a particular person.111.,
1. 'Express provision'.—This refers to sections in which specific cases of abetment of,
offences punishable with death or imprisonment for life are dealt with.112.,
2. 'Such abetment'.—These words refer to the abetment of the offence specified in the,
"section itself, namely an offence punishable with death or imprisonment for life, and",
only sections 121 and 131 provide for the punishment of the abetment of such,
offence.113.,
"109. Subs. by Act 26 of 1955, section 117 and Sch., for ""transportation for life"" (w.e.f. 1 January",
1956).,
"110. Subs. by Act 26 of 1955, section 117 and Sch., for ""transportation for life"" (w.e.f. 1 January",
1956).,
"111. Dwarkanath Goswami, (1932) 60 Cal 427 ; Lavji Mandan v State, (1939) 41 Bom LR 980 .",
112. Ibid.,
"113. Lavji Mandan, (1939) 41 Bom LR 980 .",
THE INDIAN PENAL CODE,
CHAPTER V OF ABETMENT,
[s 116] Abetment of offence punishable with imprisonment— if offence be not,
committed.,
"Whoever abets an offence punishable with imprisonment shall, if that offence be not",
"committed in consequence of the abetment, and no express provision is made by this",
"Code for the punishment of such abetment, be punished with imprisonment of any",
description provided for that offence for a term which may extend to one-fourth part,
"of the longest term provided for that offence, or with such fine as is provided for that",
"offence, or with both;",
If abettor or person abetted be a public servant whose duty it is to prevent,
offence.,
"and if the abettor or the person abetted is a public servant, whose duty it is to",
"prevent the commission of such offence, the abettor shall be punished with",
"imprisonment of any description provided for that offence, for a term which may",
"extend to one-half of the longest term provided for that offence, or with such fine",
"as is provided for the offence, or with both.",
ILLUSTRATIONS,
"(a) A offers a bribe to B, a public servant, as a reward for showing A some",
favour in the exercise of B's official functions. B refuses to accept the bribe.,
A is punishable under this section.,
"(b) A instigates B to give false evidence. Here, if B does not give false evidence,",
"A has nevertheless committed the offence defined in this section, and is",
punishable accordingly.,
"(c) A, a police-officer, whose duty it is to prevent robbery, abets the commission",
"of robbery. Here, though the robbery be not committed, A is liable to one-",
"half of the longest term of imprisonment provided for that offence, and also",
to fine.,
"(d) B abets the commission of a robbery by A, a police-officer, whose duty it is",
"to prevent that offence. Here, though the robbery be not committed, B is",
liable to one-half of the longest term of imprisonment provided for the,
"offence of robbery, and also to fine.",
COMMENT—,
Where abetted offence not committed.—This section provides for the abetment of an,
offence punishable with imprisonment. There is no corresponding provision in the,
Code relating to abetment of an offence punishable with fine only.,
Three different states of fact may arise after an abetment—,
(1) No offence may be committed. In this case the offender is punishable under,
sections 115 and 116 for the mere abetment to commit a crime.,
"(2) The very act at which the abetment aims may be committed, and will be punishable",
under sections 109 and 110.,
"(3) Some act different but naturally flowing from the act abetted may be perpetrated, in",
"which case the abettor will fall under the penalties of sections 111, 112 and 113.",
[s 116.1] Section 116 and Section 306.—,
"Section 116, IPC, 1860 is ""abetment of offence punishable with imprisonment if",
"offence be not committed"". But the crux of the offence under section 306 itself is",
"abetment. In other words, if there is no abetment there is no question of the offence",
under section 306 coming into play. It is inconceivable to have abetment of an,
"abetment. Hence, there cannot be an offence under section 116 read with section 306,",
"IPC, 1860.114. The Supreme Court has never laid down in Satvir Singh115. that under no",
"circumstance an offence under section 306 read with section 511 IPC, 1860 can be",
committed. The Supreme Court did not have occasion to consider whether a conviction,
for an offence of attempt to abet the commission of suicide is punishable under,
"section 306 read with section 511, IPC, 1860. Merely because the section opens with",
"the words ""if any person commits suicide"" it cannot be held that in a case of",
unsuccessful suicide there is no attempt to abet the commission of suicide. Suicide,
and its attempt on the one hand and abetment of commission of suicide and its,
"attempt on the other are treated differently by law and, therefore, the one who abets the",
commission of an unsuccessful attempt to commit suicide cannot be held to be,
"punishable merely under section 309 read with section 116, IPC, 1860. To implement",
the scheme of law he has got to be held to be punishable under section 306 read with,
"section 511, IPC, 1860.116.",
"114. Satvir Singh v State of Punjab, AIR 2001 SC 2828 [LNIND 2001 SC 2168] : (2001) 8 SCC 633",
[LNIND 2001 SC 2168] : 2001 Cr LJ 4625 : (2002) 1 SCC (Cr) 48.,
115. Supra.,
"116. Berin P Varghese v State, 2008 Cr LJ 1759 (Ker).",
THE INDIAN PENAL CODE,
CHAPTER V OF ABETMENT,
[s 117] Abetting commission of offence by the public or by more than ten,
persons.,
Whoever abets the commission of an offence by the public generally or by any,
"number or class of persons exceeding ten, shall be punished with imprisonment of",
"either description for a term which may extend to three years, or with fine, or with",
both.,
ILLUSTRATION,
A affixes in a public place a placard instigating a sect consisting of more than ten,
"members to meet at a certain time and place, for the purpose of attacking the",
"members of an adverse sect, while engaged in a procession. A has committed the",
offence defined in this section.,
COMMENT—,
Abetting by public or more than ten persons.—Abetment has a reference both to the,
"person or persons abetted, and to the offence or offences the commission of which is",
"abetted. This section deals with former, whatever may be the nature of the offence",
"abetted, while section 115 deals with the latter without having regard to the person or",
persons abetted.117.,
Under this section it will be sufficient to show any instigation or other mode of,
"abetment, though neither the effect intended, nor any other effect follows from it. The",
"gravamen of a charge under this section is the abetment itself, the instigation to",
"general lawlessness, not the particular offence of which the commission is",
instigated.118. The section covers all offences and is a general provision for abetment,
of any number of persons exceeding ten. When more than ten persons are instigated to,
"commit an offence punishable with death, the offence comes under section 115 as",
"well as this section.119. Abetment of the commission of murder, whether by a single",
"individual or by a class of persons exceeding ten, falls under section 115. In the latter",
"case, it may fall under this section also, but as this section prescribes a lesser",
"punishment, section 115 is the more appropriate provision for such an offence.",
"Although both the sections are applicable, there cannot be separate sentences under",
"the two sections for the same criminal act, and the conviction should properly be under",
that section which inflicts the higher punishment.120.,
[s 117.1] Instigation is essential.—,
A mere intention or preparation to instigate is neither instigation nor abetment. In order,
to constitute an offence under this section by pasting leaflets it is necessary that either,
the public should have read the leaflets or they should have been exposed to public,
gaze.121.,
"117. Lavji Mandan v State, (1939) 41 Bom LR 980 .",
"118. Konda Satyavtamma v State, (1931) 55 Mad 90.",
"119. Dwarkanath Goswami, (1932) 60 Cal 427 .",
"120. Lavji Mandan, (1939) 41 Bom LR 980 .",
"121. Parimal Chatterji, (1932) 60 Cal 327 .",
THE INDIAN PENAL CODE,
CHAPTER V OF ABETMENT,
[s 118] Concealing design to commit offence punishable with death or,
imprisonment for life.,
Whoever intending to facilitate or knowing it to be likely that he will thereby facilitate,
"the commission of an offence punishable with death or 122.[imprisonment for life],",
123.[voluntarily conceals by any act or omission or by the use of encryption or any,
"other information hiding tool, the existence of a design] to commit such offence or",
"makes any representation which he knows to be false respecting such design,",
If offence be committed — if offence be not committed.,
"shall, if that offence be committed, be punished with imprisonment of either",
"description for a term which may extend to seven years, or, if the offence be not",
"committed, with imprisonment of either description for a term which may extend",
to three years; and in either case shall also be liable to fine.,
ILLUSTRATION,
"A, knowing that dacoity is about to be committed at B, falsely informs the Magistrate",
"that a dacoity is about to be committed at C, a place in an opposite direction, and",
thereby misleads the Magistrate with intent to facilitate the commission of the offence.,
The dacoity is committed at B in pursuance of the design. A is punishable under this,
section.,
COMMENT—,
"Concealing design to commit offence.—Sections 118, 119 and 120 all contemplate the",
concealment of a design by persons other than the accused to commit the offence,
charged. These sections apply to the concealment of all offences except those which,
are merely punishable with fine. Under section 107 concealment of a design to commit,
an offence constitutes an abetment. There must be an obligation on the person,
"concealing the offence to disclose.124. The Cr PC, 1973 creates such obligation in",
"respect of several offences of a serious nature (sections 39 and 40 Cr PC, 1973). The",
concealment to be criminal must be intentional or at least with knowledge that it will,
facilitate the commission of an offence.,
"122. Subs. by Act 26 of 1955, section 117 and Sch., for ""transportation for life"" (w.e.f. 1 January",
1956).,
"123. Subs. by the Information Technology (Amendment) Act, 2008 (10 of 2009), section 51",
(w.e.f. 27 October 2009).,
"124. Bahadur, (1882) PR No. 34 of 1882.",
THE INDIAN PENAL CODE,
CHAPTER V OF ABETMENT,
[s 119] Public servant concealing design to commit offence which it is his duty,
to prevent.,
"Whoever, being a public servant, intending to facilitate or knowing it to be likely that",
he will thereby facilitate the commission of an offence which it is his duty as such,
public servant to prevent;,
125.[voluntarily conceals by any act or omission or by the use of encryption or any,
"other information hiding tool, the existence of a design] to commit such offence, or",
makes any representation which he knows to be false respecting such design;,
If offence be committed.,
"shall, if the offence be committed, be punished with imprisonment of any",
"description provided for the offence, for a term which may extend to one-half of",
"the longest term of such imprisonment, or with such fine as is provided for that",
"offence, or with both;",
"If offence be punishable with death, etc.",
"or, if the offence be punishable with death or 126.[imprisonment for life], with",
imprisonment of either description for a term which may extend to ten years;,
If offence be not committed.,
"or if the offence be not committed, shall be punished with imprisonment of any",
"description provided for the offence, for a term which may extend to one-fourth",
part of the longest term of such imprisonment or with such fine as is provided for,
"the offence, or with both.",
ILLUSTRATION,
"A, an officer of police, being legally bound to give information of all designs to commit",
"robbery which may come to his knowledge, and knowing that B designs to commit",
"robbery, omits to give such information, with intent to so facilitate the commission of",
"that offence. Here A has by an illegal omission concealed the existence of B's design,",
and is liable to punishment according to the provisions of this section.,
COMMENT—,
Public servant concealing design to commit offence.—Section 118 deals with persons,
who are not public servants. In this section the same principle is extended to public,
servants but with severe penalty.,
"125. Subs. by the Information Technology (Amendment) Act, 2008 (10 of 2009), section 51",
(w.e.f. 27 October 2009).,
"126. Subs. by Act 26 of 1955, section 117 and Sch., for ""transportation for life"" (w.e.f. 1 January",
1956).,
THE INDIAN PENAL CODE,
CHAPTER V OF ABETMENT,
[s 120] Concealing design to commit offence punishable with imprisonment.,
"Whoever, intending to facilitate or knowing it to be likely that he will thereby facilitate",
"the commission of an offence punishable with imprisonment,",
If offence be committed—if offence be not committed.,
"voluntarily conceals, by any act or illegal omission, the existence of a design to",
"commit such offence, or makes any representation which he knows to be false",
"respecting such design,",
"shall, if the offence be committed, be punished with imprisonment of the",
"description provided for the offence, for a term which may extend to one-fourth,",
"and, if the offence be not committed, to one-eighth, of the longest term for such",
"imprisonment, or with such fine as is provided for the offence, or with both.",
COMMENT—,
Punishment for concealing design.—The basic principle of this section and section,
118 is one and the same. Section 118 deals with offences punishable with death or,
imprisonment for life; this section deals with offences punishable with imprisonment.,
All offences except those punishable only with fine are included in these two sections.,
THE INDIAN PENAL CODE,
1.,
CHAPTER V-A CRIMINAL CONSPIRACY,
[s 120A] Definition of criminal conspiracy.,
"When two or more persons agree to do, or cause to be done,—",
"(1) an illegal act, or",
"(2) an act which is not illegal by illegal means, such an agreement is designated a",
criminal conspiracy:,
Providedthat no agreement except an agreement to commit an offence shall,
amount to a criminal conspiracy unless some act besides the agreement is,
done by one or more parties to such agreement in pursuance thereof.,
Explanation.—It is immaterial whether the illegal act is the ultimate object of such,
"agreement, or is merely incidental to that object.",
COMMENT—,
Criminal conspiracy.—This chapter has introduced into the criminal law of India a new,
"offence, viz., the offence of criminal conspiracy. It came into existence by the",
"Criminal Law (Amendment) Act, 1913. Offence of criminal conspiracy is an exception",
to the general law where intent alone does not constitute crime. It is intention to,
commit crime and joining hands with persons having the same intention.2. Law,
making conspiracy a crime is designed to curb immoderate power to do mischief,
which is gained by a combination of the means. The encouragement and support,
"which co-conspirators give to one another rendering enterprises possible which, if left",
"to individual effort, would have been impossible, furnish the ground for visiting",
conspirators and abettors with condign punishment. The conspiracy is held to be,
continued and renewed as to all its members wherever and whenever any member of,
the conspiracy acts in furtherance of the common design. Offence of criminal,
conspiracy has its foundation in an agreement to commit an offence. A conspiracy,
"consists not merely in the intention of two or more, but in the agreement of two or",
more to do an unlawful act by unlawful means.3. A criminal conspiracy must be put to,
"action inasmuch as so long a crime is generated in the mind of an accused, it does",
"not become punishable. What is necessary is not thoughts, which may even be",
"criminal in character, often involuntary, but offence would be said to have been",
committed thereunder only when that take concrete shape of an agreement to do or,
cause to be done an illegal act or an act which although not illegal by illegal means,
and then if nothing further is done the agreement would give rise to a criminal,
conspiracy.4.,
[s 120A.1] Ingredients.—,
The ingredients of this offence are—,
(1) that there must be an agreement between the persons who are alleged to,
conspire; and,
(2) that the agreement should be,
"(i) for doing of an illegal act, or",
(ii) for doing by illegal means an act which may not itself be illegal.5.,
Meeting of minds of two or more persons for doing or causing to be done,
an illegal act or an act by illegal means is sine qua non of criminal,
conspiracy.6.,
"The most important ingredient of the offence being, the agreement between two or",
"more persons to do an illegal act. In a case where criminal conspiracy is alleged, the",
court must inquire whether the two persons are independently pursuing the same end,
or they have come together to pursue the unlawful object. The former does not render,
them as conspirators but the latter does. For the offence of conspiracy some kind of,
physical manifestation of agreement is required to be established. The express,
agreement need not be proved. The evidence as to the transmission of thoughts,
sharing the unlawful act is not sufficient. A conspiracy is a continuing offence which,
continues to subsist till it is executed or rescinded or frustrated by choice of necessity.,
During its subsistence whenever any one of the conspirators does an act or series of,
"acts, he would be held guilty under section 120-B of the Indian Penal Code, 1860 (IPC,",
1860).7.,
[s 120A.2] Elements of Criminal Conspiracy.—,
"(a) an object to be accomplished,",
"(b) a plan or scheme embodying means to accomplish that object,",
(c) an agreement or understanding between two or more of the accused persons,
"whereby, they become definitely committed to cooperate for the",
"accomplishment of the object by the means embodied in the agreement, or by",
"any effectual means, and",
(d) in the jurisdiction where the statute required an overt act.8.,
1. Two or more persons needed.—To constitute the offence of conspiracy there must,
be an agreement of two or more persons to do an act which is illegal or which is to be,
done by illegal means for one cannot conspire with oneself. In Topandas v State of,
"Bombay,9. which has been cited by the Supreme Court with approval in Haradhan",
"Chakrabarty v UOI,10. it was laid down that ""two or more persons must be parties to",
such an agreement and one person alone can never be held guilty of criminal,
"conspiracy for the simple reason that one cannot conspire with oneself."" The question",
of a single person being convicted for an offence of conspiracy was considered in,
"Bimbadhar Pradhan v The State of Orissa,11.,12. and held that It is not essential that",
more than one person should be convicted of the offence of criminal conspiracy. It is,
enough if the court is in a position to find that two or more persons were actually,
concerned in the criminal conspiracy. In the Red fort Attack Case13. the Supreme Court,
"found that it was nothing but a well-planned conspiracy, in which apart from sole",
"appellant, some others were also involved and convicted the sole appellant for criminal",
conspiracy.14. Under the common law since husband and wife constitute one person,
there cannot be any conspiracy to commit an offence if husband and wife are the only,
"parties to an agreement.15. ""It seems rather odd that though husband and wife by",
themselves alone cannot be convicted of an offence of conspiracy for agreeing to,
commit an offence but if two of them commit the self-same substantive offence they,
"can be convicted of that offence"".16. Fortunately this state of law does not exist in",
"India, where husband and wife by themselves alone can be parties to a criminal",
conspiracy. Where the husband is a party with some others in a conspiracy and his wife,
joined him in that with knowledge that he was involved with others to commit an,
"unlawful act, she would be guilty of the conspiracy.17. Since conspiracy requires at",
"least two persons, where two or more named persons only were charged and all but",
"one of them were acquitted, the remaining accused could not be convicted under",
"section 120B, IPC, 1860, as he could not have conspired with himself.18. In a similar",
"case before the Supreme Court, a military major was tried for theft of military goods",
along with nine others who were supposed to have abetted him. He was found guilty,
"along with one more accused and the rest were acquitted. On his appeal, the High",
Court quashed the judgment of the Court martial because there was no proof that he,
had removed the wheel drums. He was reinstated. In view of the acquittal and,
"reinstatement of the main accused, the matter of his co-accused came before the",
Supreme Court. He too was ordered to be acquitted and reinstated.19. The same rule,
obtained under the English common law provided two named persons were tried,
"together.20. This rule has now been abolished by section 5(8) of the Criminal Law Act,",
1977 which provides that unless conviction of one becomes inconsistent with the,
"acquittal of the other even one of the two conspirators can be convicted, e.g., where",
one was acquitted for want of sanction or on ground of being an exempted person. The,
"Bombay High Court has taken the same view in a case. Thus, where of the two accused",
one was a public servant and he had to be acquitted as he was prosecuted without,
"obtaining sanction under section 197, Code of Criminal Procedure, 1973 (Cr PC, 1973),",
the other could still be convicted on a charge of conspiracy as the acquittal of the other,
accused was not on facts but on technical ground and in spite of evidence establishing,
the factum of conspiracy.21.,
"The circumstances in which a single person can be tried and convicted have been thus,",
"stated in Kenny:22. ""But though there must be plurality of conspirators, it is not",
"necessary that all should be brought to trial together. One person may be indicted,",
"alone, for conspiring with other persons who are not in custody, or who are even",
"unknown to the indictors. Indeed, some of the conspirators may be unknown to the",
"rest, provided all are acting under the directions of one leader. There need not be",
"communication between each conspirator and every other, provided there be a design",
"common to all.""23. Thus, a wife knowing that her husband was involved with others in a",
"conspiracy, agreed with him that she would join the conspiracy and play her part, it was",
held that she thereby became guilty of conspiracy notwithstanding that the only person,
with whom she actually concluded the agreement was her husband.24.,
2. Agreement is gist of the offence.—The gist of the offence is the bare engagement,
"and association to break the law, whether any act be done in pursuance thereof by the",
conspirators or not.25. Meeting of minds is essential. Mere knowledge or discussion is,
not sufficient.26. It is intention to commit crime and joining hands with persons having,
the same intention. Not only the intention but the presence of an agreement to carry,
"out the object of the intention, is an offence. The question for consideration in a case is",
did all the accused had the intention and did they agree that the crime be committed. It,
would not be enough for the offence of conspiracy when some of the accused merely,
"entertained a wish, howsoever, horrendous it may be, that offence be committed.27. In",
"the absence of an agreement, a mere thought to commit a crime does not constitute",
the offence.28. The offence of conspiracy is a substantive offence. It renders the mere,
agreement to commit an offence punishable even if no offence takes place pursuant to,
"the illegal agreement.29. The object in view or the methods employed should be illegal,",
"as defined in section 43, (supra). A distinction is drawn between an agreement to",
commit an offence and an agreement of which either the object or the methods,
"employed are illegal but do not constitute an offence. In the case of the former, the",
"criminal conspiracy is completed by the act of agreement; in the case of the latter,",
there must be some act done by one or more of the parties to the agreement to give,
"effect to the object thereof, that is, there must be an overt act. An express agreement",
need not be proved. Evidence relating to transmission of thoughts leading to sharing of,
thought relating to the unlawful act is sufficient.30. A wrong judgment or an inaccurate,
"or incorrect approach or poor management by itself, even after due deliberations",
"between Ministers or even with Prime Minister, by itself cannot be said to be a product",
of criminal conspiracy.31. A few bits here and a few bits there on which the prosecution,
relies cannot be held to be adequate for connecting the accused with the commission,
of the crime of criminal conspiracy. It has to be shown that all means adopted and,
illegal acts done were in furtherance of the object of conspiracy hatched. The,
circumstances relied for the purposes of drawing an inference should be prior in point,
of time than the actual commission of the offence in furtherance of the alleged,
conspiracy.32.,
The meeting of the minds to form a criminal conspiracy has to be proved by adducing,
"substantive evidence, in cases where the circumstantial evidence is incomplete or",
vague.33.,
[s 120A.3] Actus reus.—,
"The actus reus in a conspiracy is the agreement to execute the illegal conduct, not the",
execution of it. It is not enough that two or more persons pursued the same unlawful,
object at the same time or in the same place; it is necessary to show a meeting of,
"minds, a consensus to give effect to an unlawful purpose. It is not, however, necessary",
that each conspirator should have been in communication with every other.34.,
[s 120A.4] Participation.—,
It is not necessary that all the conspirators should participate from the inception to the,
end of the conspiracy; some may join the conspiracy after the time when such intention,
was first entertained by any one of them and some others may quit from the,
conspiracy. All of them cannot be treated as conspirators. Where in pursuance of the,
agreement the conspirators commit offences individually or adopt illegal means to do,
"a legal act which has a nexus to the object of conspiracy, all of them will be liable for",
such offences even if some of them have not actively participated in the commission,
"of those offences.35. To constitute a conspiracy, meeting of mind of two or more",
persons for doing an illegal act or an act by illegal means is the first and primary,
condition and it is not necessary that all the conspirators must know each and every,
detail of conspiracy. Neither is it necessary that every one of the conspirators takes,
active part in the commission of each and every conspiratorial act.36. Even if some,
steps are resorted to by one or two of the conspirators without the knowledge of the,
others it will not affect the culpability of those others when they are associated with the,
object of the conspiracy.37. The rationale is that criminal acts done in furtherance of a,
conspiracy may be sufficiently dependent upon the encouragement and support of the,
group as a whole to warrant treating each member as a causal agent to each act.,
"Under this view, which of the conspirators committed the substantive offence would be",
less significant in determining the defendant's liability than the fact that the crime was,
performed as a part of a larger division of labour to which the accused had also,
contributed his efforts.38.,
[s 120A.5] Overt act.—,
No overt act is necessary.39. Where the allegation against the third accused was that,
"he was merely standing nearby when the other accused committed the murder, he",
"cannot be charged for an offence under sections 302/120B, IPC, 1860, in the absence",
of any other reliable evidence.40. In a case where the agreement is for accomplishment,
"of an act which by itself constitutes an offence, then in that event, unless the Statute so",
"requires, no overt act is necessary to be proved by the prosecution because in such a",
fact-situation criminal conspiracy is established by proving such an agreement.41.,
"When two agree to carry it into effect, the very plot is an act in itself, and an act of each",
"of the parties, promise against promise, actus contra actum, capable of being enforced,",
"if lawful, punishable if for a criminal object or for use of criminal means.42. Where the",
conspiracy alleged is with regard to the commission of a serious crime as,
contemplated by section 120-B read with the proviso to sub-section (2) of section,
"120A, then the mere proof of an agreement is enough to bring about conviction under",
section 120B and the proof of any overt act by the accused or by any of them would not,
"be necessary.43. The illegal act may or may not be done in pursuance of agreement, but",
the very agreement is an offence and is punishable.44.,
It is not an ingredient of the offence under this section that all the parties should agree,
to do a single illegal act. It may comprise the commission of a number of acts. Where,
"the accused are charged with having conspired to do three categories of illegal acts,",
the mere fact that all of them could not be convicted separately in respect of each of,
the offences has no relevancy in considering the question whether the offence of,
conspiracy has been committed. They can all be held guilty of the offence of,
"conspiracy to do illegal acts, though for individual offences all of them may not be",
liable.45. Where the agreement between the accused is a conspiracy to do or continue,
"to do something which is illegal, it is immaterial whether the agreement to do any of",
the acts in furtherance of the commission of the offence do not strictly amount to an,
offence. The entire agreement must be viewed as a whole and it has to be ascertained,
as to what in fact the conspirators intended to do or the object they wanted to,
achieve.46. It is not necessary that each member of a conspiracy must know each other,
or all the details of the conspiracy.47. It is also not necessary that every conspirator,
"must have taken part in each and every act done in pursuance of a conspiracy.48. It is,",
"however, necessary that a charge of conspiracy should contain particulars of the",
"names of the place or places where it was hatched, persons hatching it, how was it",
hatched and what the purpose of the conspiracy was.49.,
"In the matter50. of the assassination of the then Prime Minister of India, Smt. Indira",
"Gandhi, one of the two actual killers and two conspirators were brought to trial. Both",
the conspirators were away from the scene of the crime. One of them was acquitted by,
the Supreme Court. His movements after the incident were not properly proved. The,
documents recovered from his custody did not indicate any agreement between him,
and the other accused. They only showed his agitated mind which was in the grip of an,
avenging mood. This is not enough to establish an agreement with anybody. On the,
"other hand, about Kehar Singh, it was shown that he was having secret talks with one of",
"the actual killers, that they were trying all the time to keep themselves away from their",
"wives and children, they avoided the company of the other members of the family and",
"on being asked what they were talking about, they remained mysterious. These facts",
were sufficient to show that they were planning something secret. This was enough to,
constitute a prima facie evidence of conspiracy within the meaning of section 10 of the,
"Evidence Act, 1872 and to bring them within the jacket of punishment of all for the act",
of one.,
"Privacy and secrecy are more characteristics of a conspiracy, than of a loud discussion",
in an elevated place open to public view. Direct evidence in proof of a conspiracy is,
seldom available; offence of conspiracy can be proved by either direct or circumstantial,
evidence. It is not always possible to give affirmative evidence about the date of the,
"formation of the criminal conspiracy, about the persons who took part in the formation",
"of the conspiracy, about the object, which the objectors set before themselves as the",
"object of conspiracy, and about the manner in which the object of conspiracy is to be",
"carried out, all this is necessarily a matter of inference.51. Thus, a conspiracy is an",
inference from circumstances. There cannot always be much direct evidence about it.,
Conspiracy can be inferred even from the circumstances giving rise to a conclusive or,
irresistible inference of an agreement between two or more persons to commit an,
offence.52. It is manifest that the meeting of minds of two or more persons is a sine,
qua non but it may not be possible to establish by direct evidence. Its existence and,
objective can be inferred from the surrounding circumstances and parties conduct. It is,
"necessary that the incriminating circumstances must form a chain of events, from",
which a conclusion about the accused's guilt could be drawn. The help of,
circumstantial evidence is necessary because a conspiracy is always hatched in,
secrecy. It becomes difficult to locate any direct evidence.53. A businessman was in,
great need of money for completing the construction of a theatre complex. He was,
approached by a person who told him that his financier friend would help him with,
money. This was followed by a number of meetings between him and the team of,
financiers during which documents were executed and money released in cash which,
cash was found to be counterfeit currency. Every member of the team was held to be,
guilty of conspiracy and of cheating under section 420.54. Seizure of unexplained,
currency notes from the possession of a person who claimed to be the owner of the,
money was held to be not sufficient to connect him with the person who was the main,
"accused of smuggling currency, though he was a relative of the main accused.55.",
Where a bank accountant dishonestly agreed with others to conceal dishonour of,
"cheques purchased by the bank and thus, causing risk to the economic interests of the",
"bank, he was held guilty of conspiring to defraud whatever his motive or underlying",
purpose might have been (he contended that he acted in the interest of the bank) and,
even though he had no desire to harm the victim and no loss was actually caused.56.,
"Officials of a nationalised bank, in violation of departmental instructions, allowing",
advance credits on banker's cheques to the account of a customer dealing in,
securities. Advance credits were allowed before the cheques were sent for clearance,
and in some cases even before the cheques were received. This allowed the customer,
to take pecuniary advantage by overdrawing money from his account which he was not,
"entitled to. Public funds were thus, misused. It was held that a criminal conspiracy",
between bank officials and the customer stood proved. One of them was acquitted,
because no conclusive evidence could be found against him.57.,
A criminal conspiracy can be proved by circumstantial evidence or by necessary,
implication. A smaller conspiracy may be the part of a larger conspiracy. It was held on,
facts that a criminal conspiracy was established when officials of two public sector,
banks acted in such a way that the transaction appeared to be an inter-banking,
transaction relating to call money which the borrowing bank was supposed to retain,
with itself but the transaction was in fact meant to help a private party to use public,
"funds for private purpose.58. Where the accused, an LIC agent, was charged with",
"cheating the LIC by entering into conspiracy with the co-accused, a Development",
"Officer, on the allegation that insurance policies were got issued on the basis of fake",
and forged documents and he received premium commission and bonus in respect of,
"those policies, the accused was entitled to be acquitted because the forging was done",
"by the co-accused without the knowledge and consent of the accused. Bonus,",
"Commission, etc., in respect of those policies were credited to his account only in the",
"normal course.59. A 'vaid' and an 'up-vaid' who, in conspiracy with others made bogus",
medical bills for government servants and got them duly passed through their,
"Ayurvedic Aushadhalaya for payment of 30 per cent of the amount of the bills, were",
caught in a trap and the tainted money was recovered from the accused. One of the,
accused died during the pendency of appeal. Conviction of the other under sections,
120B/468 was held to be proper.60.,
A group of friends went to a club for fun and frolic. One of them (the main accused),
suddenly fired at the bar mate for her refusal to serve drinks. The others were unaware,
of the accused carrying a loaded pistol. They had stayed at the club for about two and,
a half hours. The Court said that this could not constitute an evidence of conspiracy.,
The Court also said that the fact that the group members dispersed separately and,
also helped to retrieve the murder weapon would not suggest conspiracy for murder.61.,
[s 120A.6] Same verdict in respect of each not necessary.—,
It has been held that the rule that both parties to a conspiracy had to be convicted or,
"acquitted has been abrogated by the Criminal Law Act, 1977 (English). The important",
question is whether there is a material difference in the evidence against the two.62.,
[s 120A.7] Sections 34 and 120A.—,
There is not much substantial difference between conspiracy as defined in section,
"120A and acting on a common intention, as contemplated in section 34. While in the",
"former, the gist of the offence is bare engagement and association to break the law",
"even though the illegal act does not follow, the gist of the offence under section 34 is",
the commission of a criminal act in furtherance of a common intention of all the,
"offenders, which means that there should be unity of criminal behaviour resulting in",
"something, for which an individual would be punishable, if it were all done by himself",
alone.63. Another point of difference is that a single person cannot be convicted under,
"section 120A and, therefore, where all the accused except one were acquitted, the",
"Supreme Court ordered his acquittal also,64. whereas under section 34, read with some",
"other specific offence, a single person can be convicted because each is responsible",
for the acts of all others.,
[s 120A.8] Sections 107 and 120A.—,
For an offence under this section a mere agreement is enough if the agreement is to,
"commit an offence. But, for an offence under the second clause of section 107 an act",
or illegal omission must take place in pursuance of the conspiracy and a mere,
agreement is not enough.65.,
"3. How proved (section 120A IPC, 1860 and section 10 Evidence Act, 1872-Doctrine",
of agency).—There is no difference between the mode of proof of the offence of,
"conspiracy and that of any other offence, it can be established by direct evidence or by",
circumstantial evidence. But section 10 of the Evidence Act introduces the doctrine of,
"agency and if the conditions laid down therein are satisfied, the acts done by one are",
admissible against the coconspirators. When men enter into an agreement for an,
"unlawful end, they become ad-hoc agents for one another and have made a partnership",
"in crime. The said section reads: ""Where there is reasonable ground to believe that two",
"or more persons have conspired together to commit an offence or an actionable wrong,",
"anything said, done or written by any one of such persons in reference to their common",
"intention, after the time when such intention was first entertained by any one of them is",
"a relevant fact against each of the persons believed to be so conspiring, as well as for",
the purpose of proving the existence of the conspiracy as for the purpose of showing,
"that any such person was party to it.""",
"The section can be analysed as follows: ""(1) There shall be a prima facie evidence",
affording a reasonable ground for a Court to believe that two or more persons are,
"members of a conspiracy; (2) if the said condition is fulfilled, anything said, done or",
written by any one of them in reference to their common intention will be evidence,
"against the other; (3) anything said, done or written by him should have been said, done",
or written by him after the intention was formed by any one of them; (4) it would also,
be relevant for the said purpose against another who entered the conspiracy whether it,
"was said, done or written before he entered the conspiracy or after he left it; and (5) it",
"can only be used against a coconspirator and not in his favour.""66.",
Since conspiracy is often hatched up in utmost secrecy it is mostly impossible to prove,
"conspiracy by direct evidence. It has, oftener than not, to be inferred from the acts,",
statements and conduct of the parties to the conspiracy.67. The circumstances proved,
"before, during and after the occurrence have to be considered to decide about the",
"complicity of the accused.68. If it is proved that the accused pursued, by their acts, the",
"same object often by the same means, one performing one part of the act and the",
other another part of the same act so as to complete it with a view to attainment of the,
"object which they were pursuing, the Court is at liberty to draw the inference that they",
"conspired together to effect that object.69. It should, however, be remembered that",
"where there is no direct evidence, for example through the evidence of an approver, and",
"the case for the prosecution is dependent on circumstantial evidence alone, it is",
necessary for the prosecution to prove and establish such circumstances as would,
lead to the only conclusion of existence of a criminal conspiracy and rule out the theory,
"of innocence.70. Thus, chairman of a large cooperative society cannot be punished",
vicariously for the acts of others as mens rea cannot be excluded in a criminal case. As,
a chairman he had to deal with various matters and it would have been impossible for,
him to look into every detail to find out if someone was committing any criminal breach,
"of trust.71. Similarly, a case of conspiracy to misappropriate cash entrusted to the",
accused is not made out merely from the audit report without any evidence of shortage,
on actual verification of cash as mistakes and even double entries may be made bona,
fide while preparing the account.72. The onus is on the prosecution to prove the charge,
"of conspiracy by cogent evidence, direct or circumstantial.73. One more principle which",
deserves notice is that the cumulative effect of the proved circumstances should be,
taken into account in determining the guilt of the accused rather than adopting an,
"isolated approach to each of the circumstances. Of course, each one of the",
"circumstances should be proved beyond reasonable doubt. Lastly, in regard to the",
"appreciation of evidence relating to the conspiracy, the Court must take care to see that",
the acts or conduct of the parties must be conscious and clear enough to infer their,
concurrence as to the common design and its execution.74.,
[s 120A.9] Inference of conspiracy.—,
It is a matter of common experience that direct evidence to prove conspiracy is rarely,
"available.75. Thus, it is extremely difficult to adduce direct evidence to prove",
conspiracy. Existence of conspiracy and its objective can be inferred from the,
"surrounding circumstances and the conduct of the accused. In some cases, indulgence",
in the illegal act or legal act by illegal means may be inferred from the knowledge,
itself.76. It can be a matter of inference drawn by the Court after considering whether,
the basic facts and circumstances on the basis of which inference is drawn have been,
proved beyond all reasonable doubts and that no other conclusion except that of the,
"complicity of Accused to have agreed to commit an offence is evident.77. Accordingly,",
the circumstances proved before and after the occurrence have to be considered to,
decide about the complicity of the accused. Even if some acts are proved to have been,
"committed, it must be clear that they were so committed in pursuance of an agreement",
made between the accused persons who were parties to the alleged conspiracy.,
Inferences from such proved circumstances regarding the guilt may be drawn only,
when such circumstances are incapable of any other reasonable explanation. An,
offence of conspiracy cannot be deemed to have been established on mere suspicion,
and surmises or inference which are not supported by cogent and acceptable evidence.,
Inferences from such proved circumstances regarding the guilt may be drawn only,
when such circumstances are incapable of any other reasonable explanation. To,
establish a charge of conspiracy knowledge about indulgence in either an illegal act or,
"a legal act by illegal means is necessary. In some cases, intent of unlawful use being",
made of the goods or services in question may be inferred from the knowledge,
"itself.78. This apart, the prosecution has not to establish that a particular unlawful use",
"was intended, so long as the goods or service in question could not be put to any lawful",
"use. Finally when the ultimate offence consists of a chain of actions, it would not be",
"necessary for the prosecution to establish, to bring home the charge of conspiracy, that",
each of the conspirators had the knowledge of what the collaborator would do.79.,
"One of the accused persons, a foreign national, was found staying in the country",
without valid passport and visa. His movement to various places with the main,
accused was established. A large quantity of arms and ammunition was recovered,
from the place occupied by the main accused. The Court said that an inference of,
criminal conspiracy could be drawn.80. The Court also said that the appeal against,
conviction of the main accused was dismissed would not be sufficient to say that the,
charge of conspiracy against other accused would be deemed to be proved.81.,
"Circumstances proved before, during and after the occurrence of the crime have to be",
considered together to decide about the complicity of the accused.82. Circumstantial,
evidence was based on the recovery of the scooter used by the executant and alleged,
"to have been owned by a co-conspirator, but the recovery was not based on any",
"information given by the accused, but by one witness. The Supreme Court held that no",
circumstantial evidence was proved against any of the conspirators.83.,
"[s 120A.10] Circumstantial evidence, inference must be backed by evidence.—",
Most of the circumstances stated as against the accused were not proved. Merely,
based on the circumstance that the accused had filed a civil suit against the deceased,
"for restraining him from doing a business he cannot be convicted. Moreover, there was",
"no specific evidence as to who the conspirators were, where and when the conspiracy",
"was hatched, what the specific purpose of such a conspiracy was and whether it was",
relating to the elimination of the deceased.84. The law is well established that,
conspiracy cannot be proved merely on the basis of inferences. The inferences have to,
be backed by evidence.85.,
The Court for the purpose of arriving at a finding as to whether the said offence has,
been committed or not may take into consideration the circumstantial evidence.,
"However, while doing so, it must bear in mind that the meeting of minds is essential",
and mere knowledge or discussion would not be sufficient.86. In Mukesh v State for,
"NCT of Delhi, Criminal Appeal Nos. 607–608 of 2017, (popular as Nirbhaya Case) the",
criminal conspiracy was proved by the sequence of events and the conduct of the,
accused.,
In the conspiracy for assassination of the former PM (Rajiv Gandhi) one of the accused,
persons at one point of time in his confessional statement said that he had a strong,
suspicion that Rajiv Gandhi was the target of the accused persons. The Court said that,
"this suspicion did not make him a member of the conspiracy. His association, however",
strong with the main conspirators would not make him a member of the conspiracy by,
"itself. But those who were in the thick of the conspiracy, for example, one who",
"purchased the battery for explosion of human body, their conviction for the main",
offence was proper. But mere association with LTTE was not sufficient nor the fact that,
messages about arrests were sent by certain persons.87.,
[s 120A.11] Contacts through telephone.—,
Where the case against the appellants A2 to A4 is that they had hatched a conspiracy,
with appellant A1 to kill the deceased and the case against A1 was proved as per the,
"'last seen theory', and to prove the conspiracy the prosecution relied on the",
circumstance that there were frequent phone calls among the accused some days,
"around the date of murder, and the recovery of some vehicles; the Supreme Court held",
that the telephonic calls and the recovery may raise suspicion against the accused but,
mere suspicion by itself cannot take the place of proof.88.,
[s 120A.12] Between bank officials.—,
Criminal conspiracy was taken to be established when officials of two public sector,
banks acted in such a way that the transaction in question appeared to be an inter-,
banking transaction relating to call money which the borrowing bank was supposed to,
retain with itself. The transaction was in fact formalised for the purpose of helping a,
private party to use public funds for a private purpose.89.,
[s 120A.13] Approval of television serial.—,
The accused was the director of Doordarshan. The allegation against him was that he,
continued a serial which was approved at lower rates by an earlier director. Each,
director worked at different point of time. They did not work together. Their postings,
were official postings. It was difficult to infer any conspiracy between them for,
continuing the telecast. The investigation launched against the director was liable to be,
quashed.90.,
"1. Chapter VA (containing sections 120A and 120B) inserted by Act 8 of 1913, section 3.",
"2. State through Superintendent of Police, CBI/SIT v Nalini, reported in (1999) 5 SCC 253 [LNIND",
1999 SC 526] .,
"3. Pratapbhai Hamirbhai Solanki v State of Gujarat, (2013) 1 SCC 613 [LNIND 2012 SC 1033] :",
2012 (10) Scale 237 [LNIND 2012 SC 1033] relying on Ram Narayan Popli v Central Bureau of,
"Investigation, (2003) 3 SCC 641 [LNIND 2003 SC 26] .",
"4. State of MP v Sheetla Sahai, 2009 Cr LJ 4436 : (2009) 8 SCC 617 : (2009) 3 SCC(Cr) 901.",
"5. Yogesh v State of Maharashtra, AIR 2008 SC 2991 [LNIND 2008 SC 979] : 2008 Cr LJ 3872 :",
"(2008) 10 SCC 394 [LNIND 2008 SC 979] ; S Arul Raja v State of TN, reported in, 2010 (8) SCC",
"233 [LNIND 2010 SC 689] ; Mohan Singh v State of Bihar, AIR 2011 SC 3534 [LNIND 2011 SC 820]",
: 2011 Cr LJ 4837 : (2011) 9 SCC 272 [LNIND 2011 SC 820] ; Central Bureau of Investigation,
"Hyderabad v K Narayana Rao, 2012 AIR SCW 5139 : 2012 Cr LJ 4610 : JT 2012 (9) SC 359",
[LNIND 2012 SC 569] : (2012) 9 SCC 512 [LNIND 2012 SC 569] : 2012 (9) Scale 228 [LNIND 2012,
"SC 569] ; Ajay Aggarwal v UOI, (AIR 1993 SC 1637 [LNIND 1993 SC 431] : 1993 AIR SCW 1866 :",
1993 Cr LJ 2516 ) : (1993) 3 SCC 609 [LNIND 1993 SC 431] .,
"6. Rajiv Kumar v State of UP, AIR 2017 SC 3772 [LNIND 2017 SC 367] .",
"7. Pratapbhai Hamirbhai Solanki v State of Gujarat, (2013) 1 SCC 613 [LNIND 2012 SC 1033] :",
2012 Mad LJ (Cr) 532 : 2012 (10) Scale 237 [LNIND 2012 SC 1033] ; Damodar v State of,
"Rajasthan, (2004) 12 SCC 336 [LNIND 2003 SC 803] ; Kehar Singh v State (Delhi Admn), (1988) 3",
"SCC 609 [LNIND 1988 SC 887] ; State of Maharashtra v Somnath Thapa, (1996) 4 SCC 659",
[LNIND 1996 SC 776] .,
"8. Ram Narayan Popli v Central Bureau of Investigation, (2003) 3 SCC 641 [LNIND 2003 SC 26] .",
"9. Topandas v State of Bombay, AIR 1956 SC 33 [LNIND 1955 SC 78] : 1956 Cr LJ 138 : (1955) 2",
"SCR 881 [LNIND 1955 SC 78] . The ruling in Topandas case, AIR 1956 SC 33 [LNIND 1955 SC 78]",
"and Fakhruddin case, AIR 1967 SC 1326 [LNIND 1966 SC 307] were not followed in Sanichar",
"Sahni v State of Bihar, (2009) 7 SCC 198 [LNIND 2009 SC 1350] : (2009) 3 SCC (Cr) 347, because",
"here only one person was charged under section 120-B and for no other offence, and his co-",
"accused was charged with another offence but not under section 120-B, the court said that the",
"charge was not properly framed. In the earlier cases, more than one were charged with",
"conspiracy, all but one were acquitted, the single one could not be convicted. He was convicted",
for murder which was proved against him.,
"10. Haradhan Chakrabarty v UOI, AIR 1990 SC 1210 [LNIND 1990 SC 57] : 1990 Cr LJ 1246 :",
(1990) 2 SCC 143 [LNIND 1990 SC 57] .,
"11. See also Thakur H v State of HP, 2013 Cr LJ 1704 (HP).",
"12. Bimbadhar Pradhan v The State of Orissa, AIR 1956 SC 469 [LNIND 1956 SC 25] .",
"13. Mohd Arif v State of NCT of Delhi, JT 2011 (9) SC 563 [LNIND 2011 SC 753] : (2011) 13 SCC",
621 [LNIND 2011 SC 753] : (2011) 10 SCR 56 [LNIND 2011 SC 753] : 2011 (8) Scale 328 [LNIND,
2011 SC 753] .,
"14. McDowell, (1966) 1 All ER 193 : (1965) 3 WLR 1138 ; Rex v IRC Haulage, (1944) KB 551 :",
"(1944) 1 All ER 691 . Central Bureau of Investigation v VC Shukla, AIR 1998 SC 1406 [LNIND 1998",
"SC 272] : 1998 Cr LJ 1905 ; Ajay Kumar Rana v State of Bihar, 2001 Cr LJ 3837 (Pat).",
"15. Mowji, (1957) All ER 385 : (1957) 2 WLR 277 . See Glanville Williams, Legal Unity of Husband",
"and Wife, 10 Modern LR 16 (1947). ""But either spouse may be convicted of inciting the other to",
"commit a crime if such be proved."" See Kenny, 450, p 428, Outlines Of Criminal Law, 19th Edn",
1966.,
"16. Cross & Jones : Introduction To Criminal Law, 9th Edn, p 343.",
"17. R v Charstny, (1991) 1 WLR 1381 (CA).",
"18. Bhagat Ram, AIR 1972 SC 1502 [LNIND 1972 SC 72] : 1972 Cr LJ 909 ; Tapandas, AIR 1956",
"SC 33 [LNIND 1955 SC 78] : (1955) 2 SCR 881 [LNIND 1955 SC 78] ; Fakhruddin, AIR 1967 SC",
"1326 [LNIND 1966 SC 307] : 1967 Cr LJ 1197 ; See also State v Dilbagh Rai, 1986 Cr LJ 138",
(Delhi).,
"19. Relying upon Faguna Kanta Nath v State of Assam, AIR 1959 SC 673 [LNIND 1959 SC 2] :",
"1959 Cr LJ 90 : 1959 Supp 2 SCR 1, where also the acquittal of the co-accused automatically",
"followed the acquittal of the main accused; Madan Lal Bhandari v State of Rajasthan, AIR 1970",
SC 436 [LNIND 1969 SC 230] : 1970 Cr LJ 519 : (1969) 2 SCC 385 [LNIND 1969 SC 230] : (1970),
"1 SCR 688 [LNIND 1969 SC 230] , the nurse causing miscarriage acquitted, the conspirator also",
acquitted.,
"20. Plummer v State, (1902) 2 KB 339 ; Coughlan (1976) 64 Cr App Rep 11 .",
"21. Pradumna, 1981 Cr LJ 1873 (Bom).",
"22. JE Cecil Turner, Kenny's Outlines of Criminal Law, 428, 19th Edn, 1966.",
"23. Citing R v Myrick and Ribuffi, (1929) 21 Cr App R 94 TAC.",
"24. Regina v Chrastry, (1991) 1 WLR 1381 (CA). Kuldeep Singh v State of Rajasthan, 2001 Cr LJ",
"479 (SC), the only evidence against one of the accused conspirators was that he was seen",
moving with others to the house of the deceased. This was held to be not sufficient to make him,
a part of the conspiracy or participant in murder.,
"25. Mohammad Ismail, (1936) Nag 152; Bimbadhar Pradhan, (1956) Cut 409 SC; EG Barsay, AIR",
1961 SC 1762 [LNIND 1961 SC 196] : 1962 (2) SCR 195 [LNIND 1961 SC 196] ; Chaman Lal v,
"State of Punjab, (2009) 11 SCC 721 [LNIND 2009 SC 721] AIR 2009 SC 2972 [LNIND 2009 SC",
"721] , requisites of the offence restated.",
"26. Sudhir Shantilal Mehta v CBI, (2009) 8 SCC 1 [LNIND 2009 SC 1652] : (2009) 3 SCC (Cr) 646 :",
"Baldev Singh v State of Punjab, (2009) 6 SCC 564 [LNIND 2009 SC 1151] : (2009) 3 SCC (Cr) 66.",
"27. State through Superintendent of Police, CBI/SIT v Nalini, reported in (1999) 5 SCC 253 [LNIND",
"1999 SC 526] Mere knowledge, or even discussion, of the plan is not, per se enough; Russell on",
"Crimes, 12th Edn, vol I, quoted in Kehar Singh v State (Delhi Administration), 1988 (3) SCC 609",
[LNIND 1988 SC 887] at 731.,
"28. R Venkatakrishnan v CBI, (2009) 11 SCC 737 [LNIND 2009 SC 1653] .",
"29. Yogesh v State of Maharashtra, AIR 2008 SC 2991 [LNIND 2008 SC 979] : 2008 Cr LJ 3872 :",
(2008) 10 SCC 394 [LNIND 2008 SC 979] .,
"30. Esher Singh v State of AP, AIR 2004 SC 3030 [LNIND 2004 SC 329] : (2004) 11 SCC 585",
"[LNIND 2004 SC 329] . K Hashim v State of TN, AIR 2005 SC 128 [LNIND 2004 SC 1142] : (2005)",
"1 SCC 237 [LNIND 2004 SC 1142] , the court enumerated four elements of criminal conspiracy,",
the essence is an unlawful agreement and it is complete when the agreement is framed. A,
design resting in mind only does not make out the offence.,
"31. Subramanian Swamy v A Raja, AIR 2012 SC 3336 [LNIND 2012 SC 498] : 2012 Cr LJ 4443 :",
(2012) 9 SCC 257 [LNIND 2012 SC 498] (Involvement of finance minister in 2G Spectrum Case) -,
Criminal conspiracy cannot be inferred on the mere fact that there were official discussions,
"between the officers of the MoF and that of DoT and between two Ministers, which are all",
"recorded. Suspicion, however, strong, cannot take the place of legal proof and the meeting",
between Shri P Chidambaram and Shri A Raja would not by itself be sufficient to infer the,
existence of a criminal conspiracy so as to indict Shri P. Chidambaram.,
"32. Esher Singh v State of AP, 2004 (11) SCC 585 [LNIND 2004 SC 329] .",
"33. Gulam Sarbar v State of Bihar, 2014 Cr LJ 34 : (2014 ) 3 SCC 401.",
"34. Chaman Lal v State of Punjab, AIR 2009 SC 2972 [LNIND 2009 SC 721] : (2009) 11 SCC 721",
[LNIND 2009 SC 721] : (2010) 1 SCC(Cr) 159.,
"35. State through Superintendent of Police, CBI/SIT v Nalini, reported in (1999) 5 SCC 253",
"[LNIND 1999 SC 526] ; State of HP v Krishan Lal Pardhan, ( AIR 1987 SC 773 [LNIND 1987 SC",
131] : 1987 Cr LJ 709 ) : (1987) 2 SCC 17 [LNIND 1987 SC 131] .,
"36. K R Purushothaman v State, AIR 2006 SC 35 [LNIND 2005 SC 842] : (2005) 12 SCC 631",
"[LNIND 2005 SC 842] ; approved in John Pandian v State Rep by Inspector of Police, TN, AIR 2011",
SC (Supp) 531 : (2011) 3 SCC(Cr) 550 : 2010 (13) Scale 13.,
"37. Yash Pal Mittal v State of Punjab, AIR 1977 SC 2433 [LNIND 1977 SC 304] : 1978 Cr LJ 189 :",
(1977) 4 SCC 540 [LNIND 1977 SC 304] .,
"38. Firozuddin Basheeruddin v State, 2001 (7) SCC 596 [LNIND 2001 SC 1755] .",
"39. K Hasim v State of TN, AIR 2005 SC 128 [LNIND 2004 SC 1142] : 2005 Cr LJ 143 .",
"40. Raju v State of Chhatisgarh, 2014 Cr LJ 4425 : 2014 (9) SCJ 453 [LNINDORD 2014 SC 19031]",
.,
"41. Sushil Suri v CBI, AIR 2011 SC 1713 [LNIND 2011 SC 494] : (2011) 5 SCC 708 [LNIND 2011",
SC 494] : (2011) 2 SCC(Cr) 764 : (2011) 8 SCR 1 [LNIND 2011 SC 494] .,
"42. Chaman Lal v State of Punjab, AIR 2009 SC 2972 [LNIND 2009 SC 721] : (2009) 11 SCC 721",
[LNIND 2009 SC 721] : (2010) 1 SCC(Cr) 159.,
"43. SC Bahri v State of Bihar, AIR 1994 SC 2020 : 1994 Cr LJ 3271 .",
"44. Kehar Singh v State (Delhi Administration), AIR 1988 SC 1883 [LNIND 1988 SC 887] : 1989 Cr",
LJ 1 : (1988) 3 SCC 609 [LNIND 1988 SC 887] .,
"45. EG Barsay, AIR 1961 SC 1762 [LNIND 1961 SC 196] : 1962 (2) SCR 195 [LNIND 1961 SC 196]",
.,
"46. Lennart v State, AIR 1970 SC 549 [LNIND 1969 SC 396] : 1970 Cr LJ 707 .",
"47. RK Dalmia, AIR 1962 SC 1821 [LNIND 1962 SC 146] : (1962) 2 Cr LJ 805 ; Yashpal v State,",
AIR 1977 SC 2433 [LNIND 1977 SC 304] SC : 1978 Cr LJ 189 .,
"48. State of HP v Krishanlal Pradhan, AIR 1987 SC 773 [LNIND 1987 SC 131] : 1987 Cr LJ 709 :",
(1987) 2 SCC 17 [LNIND 1987 SC 131] .,
"49. KS Narayanan, 1982 Cr LJ 1611 (Mad); Krishnalal Naskar, 1982 Cr LJ 1305 (Cal). Mahabir",
"Prasad Akela v State of Bihar, 1987 Cr LJ 1545 Pat, no meeting of minds.",
50. (1988) 3 SCC 609 [LNIND 1988 SC 887] : AIR 1988 SC 1883 [LNIND 1988 SC 887] : 1989 CR,
"LJ 1 . AS AGAINST THIS SEE, Param Hans Yadav v State of Bihar, AIR 1987 SC 955 [LNIND 1987",
"SC 253] : 1987 Cr LJ 789 : (1987) 2 SCC 197 [LNIND 1987 SC 253] , murder of Collector by a",
"person whose connection with the jailed co-accused not proved, though the latter had a grudge",
against the collector for demolishing his temple and detaining him. Reversing the High Court,
"decision, 1986 Pat LJR 688 .",
"51. Mohd Arif v State of NCT of Delhi, JT 2011 (9) SC 563 [LNIND 2011 SC 753] : (2011) 13 SCC",
621 [LNIND 2011 SC 753] : 2011 (8) Scale 328 [LNIND 2011 SC 753] : (2011) 10 SCR 56 [LNIND,
"2011 SC 753] ; NV Subba Rao v State, (2013) 2 SCC 162 [LNIND 2012 SC 1350] : 2013 Cr LJ 953 .",
"52. MS Reddy v State Inspector of Police ACB Nellore, 1993 Cr LJ 558 (AP). Ammuni v State of",
"Kerala, AIR 1998 SC 280 : 1998 Cr LJ 481 , the accused administered poison and caused death",
"of the woman and her two children, there was evidence to show that all the four entered into a",
conspiracy to murder the woman. They were seen hanging around her house. One of the glass,
tumblers recovered from her place carried the finger prints of one of them. One of them also,
"confessed. Conspiracy proved conviction under sections 300/34, confirmed. Kuldeep Singh v",
"State of Rajasthan, AIR 2000 SC 3649 [LNIND 2000 SC 724] , accused persons entered into",
"conspiracy to cause death, circumstantial evidence coupled with recoveries. Guilt established.",
Conviction for murder and conspiracy.,
"53. Yogesh v State of Maharashtra, AIR 2008 SC 2991 [LNIND 2008 SC 979] : 2008 Cr LJ 3872 :",
(2008) 10 SCC 394 [LNIND 2008 SC 979] .,
"54. Nellai Ganesan v State, 1991 Cr LJ 2157 . See also Khalid v. State, 1990 Cr LJ (NOC) Raj,",
where the court inferred the fact of agreement from transmission of thoughts sharing the,
"unlawful design, the court observing that neither proof of actual words of communication nor",
actual physical meeting of persons involved is necessary.,
"55. KTMS Mohd v UOI, AIR 1992 SC 1831 [LNIND 1992 SC 362] : 1992 Cr LJ 2781 .",
"56. Wai Yu-Tsang v The Queen, (1991) 3 WLR 1006 PC, applying Welham v DPP, (1961) AC 103",
"HL(E) and Reg v Allsop, (1976) 64 Cr App R; CA. Shambhu Singh v State of UP, AIR 1994 SC 1559",
": 1994 Cr LJ 1584 , the Supreme Court did not interfere in the concurrent finding of the lower",
courts as to the involvement of the accused in the conspiracy.,
"57. Mir Naqvi Askari v CBI, AIR 2010 SC 528 [LNIND 2009 SC 1651] : (2009) 15 SCC 643 [LNIND",
2009 SC 1651] . The court also explained the nature of the crime.,
"58. R Venkatakrishnan v CBI, (2009) 11 SCC 737 [LNIND 2009 SC 1653] , under the National",
"Housing Bank Act, 1987. Sudhir Shantilal Mehta v CBI, (2009) 8 SCC 1 [LNIND 2009 SC 1652] :",
(2009) 3 SCC (Cr) 646; criminal conspiracy by bank officials in relation to Harshad Mehta,
"Securities Scam, illegally extending discounting/ rediscounting facility for bills of exchange by",
"bank officials, conspiracy in relation to persons liable to be convicted, role/conduct necessary to",
fasten liability.,
"59. Nand Kumar Singh v State of Bihar, AIR 1992 SC 1939 : 992 Cr LJ 3587 : (1992) Supp (2)",
SCC 111 .,
"60. Narain Lal Nirala v State of Rajasthan, AIR 1993 SC 118 : 1993 Cr LJ 3911 .",
"61. State v Siddarth Vashisth (alias Manu Sharma), 2001 Cr LJ 2404 (Del).",
"62. R v Ashton, (1992) Cr LR 667 (CA).",
"63. Dinanath, 1939 Nag 644.",
"64. Vinayak v State of Maharashtra, AIR 1984 SC 1793 [LNIND 1984 SC 255] : (1984) 4 SCC 441",
[LNIND 1984 SC 255] : 1984 SCC (Cr) 605.,
"65. Pramatha Nath v Saroj Ranjan, AIR 1962 SC 876 [LNIND 1961 SC 400] : (1962) 1 Cr LJ 770 .",
"Further explained by the Supreme Court in Kehar Singh v State (Delhi Admn), AIR 1988 SC 1883",
[LNIND 1988 SC 887] : 1989 Cr Lj 1 : (1988) 3 SCC 609 [LNIND 1988 SC 887] .,
"66. State of TN through Superintendent of Police CBI/SIT v Nalini, AIR 1999 SC 2640 [LNIND",
1999 SC 1584] : 1999 Cr LJ 3124 : JT 1999 (4) SC 106 [LNIND 1999 SC 526] : (1999) 5 SCC 253,
"[LNIND 1999 SC 526] ; Sardar Sardul Singh Caveeshar v State of Maharashtra, ( AIR 1965 SC 682",
[LNIND 1963 SC 67] : 1965 (1) Cr LJ 608 ) : (1964) 2 SCR 378 [LNIND 1963 SC 67] See also.,
"67. Bhagwandas, AIR 1974 SC 898 : 1974 Cr LJ 751 ; Ashok Datta Naik, 1979 Cr LJ NOC 95",
"(Goa); V Shivanarayan, AIR 1980 SC 439 : 1980 Cr LJ 388 ; Mohd Usman Mohd Hussain, AIR 1981",
SC 1062 [LNIND 1981 SC 127] : 1981 Cr LJ 588 : (1988) 3 SCC 609 [LNIND 1988 SC 887] ; State,
"of UP v Girijashankar Misra, 1985 Cr LJ NOC 79 (Delhi); Subhas, 1985 Cr LJ 1807 (Cal).",
"68. Pratapbhai Hamirbhai Solanki v State of Gujarat, (2013) 1 SCC 613 [LNIND 2012 SC 1033] :",
2012 Mad LJ (Cr) 532 : 2012 (10) Scale 237 [LNIND 2012 SC 1033] ; An offence of criminal,
"conspiracy can also be proved by circumstantial evidence. State of MP v Sheetla Sahai, 2009 Cr",
"LJ 4436 : (2009) 8 SCC 617 : (2009) 3 SCC(Cr) 901]. In S Arul Raja v State of TN, 2010 (8) SCC",
233 [LNIND 2010 SC 689] in which it is held that mere circumstantial evidence to prove the,
involvement of the appellant is not sufficient to meet the requirements of criminal conspiracy,
"under Section 120A of the (IPC, 1860) A meeting of minds to form a criminal conspiracy has to",
be proved by placing substantive evidence.,
"69. Re MD Mendekar, 1972 Cr LJ 978 (Mysore); See also Bhagwandas, supra.",
"70. DB Naik, 1982 Cr LJ 856 (Bom); Hari Ram, 1982 Cr LJ 294 (HP).",
"71. Jethsur Surangbhai, AIR 1984 SC 151 [LNIND 1983 SC 329] : 1984 Cr LJ 162 (SC) : (1984)",
SCC (Cr) 474.,
72. Ajoyadha PrashadI 1985 Cr LJ 1401 (Ori).,
"73. State v VC Shukla, 1980 Cr LJ 965 : 1980 Cr LR (SC) 301 . Also VC Shukla v State (Delhi",
"Admn), AIR 1980 SC 1382 [LNIND 1980 SC 179] : 1980 SCC (Cr) 561 and 849 (1980) 2 SCC 665",
"[LNIND 1980 SC 179] . State of HP v Gian Chand, 2000 Cr LJ 949 (HP); Sardari Lal v State of",
"Punjab, 2003 Cr LJ 383 (P&H), State of MP v Sheetla Sahai, (2009) 8 SCC 617 : (2009) 3 SCC (Cr)",
"901; Baldev Singh v State of Punjab, (2009) 6 SCC 564 [LNIND 2009 SC 1151] : (2009) 3 SCC (Cr)",
"66; Y Venkaiah v State of AP, AIR 2009 SC 2311 [LNIND 2009 SC 513] : (2009) Cr LJ 2834 :",
"(2009) 12 SCC 126 [LNIND 2009 SC 513] . State of MP v Paltan Mallah, 2005 AIR 2005 SC 733",
[LNIND 2005 SC 64] : Cr LJ 918 SC : (2005) 3 SCC 169 [LNIND 2005 SC 64] .,
"74. State (NCT) of Delhi v Navjot Sandhu @ Afsan Guru, (2005) 11 SCC 600 [LNIND 2005 SC 580]",
.,
"75. Charandas Swami v State of Gujarat, 2017 (4) Scale 403 .",
"76. Rajiv Kumar v State of UP, AIR 2017 SC 3772 [LNIND 2017 SC 367] .",
"77. Charandas Swami v State of Gujarat, 2017 (4) Scale 403 .",
"78. State of Maharashtra v Som Nath Thapa, AIR 1996 SC 1744 [LNIND 1996 SC 776] : 1996 AIR",
SCW 1977 : 1996 Cr LJ 2448 : (1996) 4 SCC 649 .,
"79. State through Central Bureau of Investigation v Dr Anup Kumar Srivastava, AIR 2017 SC 3698",
[LNIND 2017 SC 371] .,
"80. Lal Singh v State of Gujarat, AIR 2001 SC 746 [LNIND 2001 SC 98] : 2001 Cr LJ 978 . The",
"case under the Terrorists and Disruptive Activities (Prevention) Act, 1987. Saju v State of Kerala,",
"AIR 2001 SC 175 [LNIND 2000 SC 1552] , no inference of conspiracy to murder from",
"circumstances proved in the case, Suman Sood v State of Rajasthan, AIR 2007 SC 2774 [LNIND",
"2007 SC 647] : (2007) Cr LJ 4080 : (2007) 5 SCC 634 [LNIND 2007 SC 647] , inference regarding",
conspiracy can be drawn from surrounding circumstances because normally no direct evidence,
is available.,
"81. Ibid. The court followed the ruling in Babu Singh v State of Punjab, AIR 1996 SC 3250 [LNIND",
"1996 SC 860] : 1996 Cr LJ 2503 ; Vijayan v State of Kerala, AIR 1999 SC 1086 [LNIND 1999 SC",
"159] : 1999 Cr LJ 1638 , it is difficult to establish conspiracy by direct evidence. But there should",
be material evidence showing the connection between the alleged conspiracy and the act done,
"pursuant to that conspiracy. Firozuddin Basheerudin v State of Kerala, AIR 2001 SC 3488 [LNIND",
"2001 SC 1755] : 2001 Cr LJ 4215 , conspiracy to eliminate a police informer on whose",
"information contraband gold was seized from the accused persons, chain of circumstances to",
"the point of murder, complete, conviction. State of Kerala v P Suganthan, AIR 2000 SC 3323",
"[LNIND 2000 SC 1298] : 2000 Cr LJ 4584 , conspiracy to murder the earlier paramour of the",
"concubine, not proved. Hira Lal Hari Lal v CBI, AIR 2003 SC 2545 [LNIND 2003 SC 499] : 2003 Cr",
"LJ 3041 : (2003) 5 SCC 257 [LNIND 2003 SC 499] , difficult to prove conspiracy by direct",
evidence. An agreement between the parties to do something unlawful has to be proved. The,
allegation here was that of evasion of customs duty.,
"82. Chandra Prakash v State of Rajasthan, 2014 Cr LJ 2884 : (2014) 8 SCC 340 [LNIND 2014 SC",
346] .,
"83. Indra Dalal v State of Haryana, 2015 Cr LJ 3174 : 2015 (6) SCJ 501 [LNIND 2015 SC 358] .",
"84. Balkar Singh v State of Haryana, 2015 Cr LJ 901 : (2015) 2 SCC 746 [LNIND 2014 SC 950] .",
"85. Satyavir Singh v State of UP, 2016 Cr LJ 4863 (All), 2015 (91) ALLCC 892.",
"86. State v Nitin Gunwant Shah, 2015 Cr LJ 4759 : 2016 (1) SCJ 30 [LNIND 2015 SC 529] .",
"87. State of TN v Nalini, AIR 1999 SC 2640 [LNIND 1999 SC 1584] : 1999 Cr LJ 3124 .",
"88. Kiriti Pal v State of WB, 2015 Cr LJ 3152 : 2015 (3) Crimes 11 (SC).",
"89. R Venkatkrishanan v CBI, 2010 1 SCC (Cr) 164 : (2009) 11 SCC 737 [LNIND 2009 SC 1653] .",
"90. Mahesh Joshi v State, (CBI), 2002 Cr LJ 97 (Kant).",
THE INDIAN PENAL CODE,
1.,
CHAPTER V-A CRIMINAL CONSPIRACY,
[s 120B] Punishment of criminal conspiracy.,
(1) Whoever is a party to a criminal conspiracy to commit an offence punishable,
"with death, 91.[imprisonment for life] or rigorous imprisonment for a term of",
"two years or upwards, shall, where no express provision is made in this Code",
"for the punishment of such a conspiracy, be punished in the same manner as if",
he had abetted such offence.,
(2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to,
commit an offence punishable as aforesaid shall be punished with,
"imprisonment of either description for a term not exceeding six months, or",
with fine or with both.],
COMMENT—,
"Earlier to the introduction of sections 120A and B, conspiracy per se was not an",
"offence under IPC, 1860, except in respect of the offence mentioned in section 121A.",
"However, abetment by conspiracy was and still remains to be an ingredient of",
"abetment under the second clause of section 107 of IPC, 1860. The punishment",
"therefore, is provided under various sections, viz., sections 108–117. Whereas under",
"section 120A, the essence of the offence of criminal conspiracy is a bare agreement to",
"commit the offence, the abetment under section 107 requires the commission of some",
act or illegal omission pursuant to the conspiracy.92. Criminal conspiracy is an,
independent offence. It is punishable separately.93. The punishment for conspiracy is,
the same as if the conspirator had abetted the offence.94. The punishment for a,
criminal conspiracy is more severe if the agreement is one to commit a serious,
offence; it is less severe if the agreement is one to commit an act which although,
"illegal is not an offence punishable with death, imprisonment for life or rigorous",
imprisonment for more than two years.,
Conspiracy to commit an offence is itself an offence and a person can be separately,
charged with respect to such a conspiracy. There may be an element of abetment in a,
conspiracy; but conspiracy is something more than abetment. The offences created by,
section 109 and section 120A are quite distinct and where offences are committed by,
several persons in pursuance of a conspiracy it is usual to charge them with those,
offences as well as conspiracy to commit those offences.95.,
This section applies to those who are the members of the conspiracy during its,
continuance. Conspiracy has to be treated as a continuing offence and whoever is a,
party to the conspiracy during the period for which he is charged is liable under this,
section.96. A conspiracy is held to be continued and renewed as to encompass all its,
members wherever and whenever any member of it acts in furtherance of the common,
design.97. The most important ingredient of a criminal conspiracy is an agreement for,
"an illegal act, conspiracy continues to subsist till it is executed or rescinded or",
frustrated by choice or necessity.98. The conspirators' connection with the conspiracy,
would get snapped after he is nabbed by the police and kept in custody. He would then,
cease to be the agent of others. In this case (Rajiv assassination) the prosecution could,
not establish that the accused persons who were under detention continued their,
conspiratorial contact with those who remained outside. A statement which,
constitutes prima facie evidence of a conspiracy may amount to an act for which all the,
members can be held liable.99.,
"Where the accused conspired with others in awarding a contract when he was in job, he",
could be held liable for subsequent acts of other conspirators even after his retirement,
as he contributed his part for furtherance of the conspiracy.100.,
"For the purpose of establishing or proving the charge of conspiracy, it is not necessary",
that there should be knowledge of who are other conspirators and of the detailed,
stages of the conspiracy. The necessary requisite is knowledge of the main object and,
purpose of the conspiracy.101. A fraud was alleged to have been committed by,
Government officers in processing and verifying fake bills. It was held that all the,
officers who dealt with the relevant files at one point of time or the other could not be,
considered to have taken part in the conspiracy or that they would be guilty of aiding,
and abetting the offence. Individual acts of criminal misconduct would have to be,
considered for fastening liability.102.,
An accused can be convicted for substantive offence even where he has been,
acquitted of the charge of conspiracy.103.,
"[s 120B.1] Sanction for prosecution (section 120B IPC, 1860 and section 196",
"(Cr PC, 1973)).—",
"This section has to be read along with section 196(1-A) (2) (Cr PC, 1973), which",
requires previous sanction of the State Government or the District Magistrate to launch,
prosecution in respect of a criminal conspiracy to commit an offence punishable with,
"less than two years imprisonment. Thus, where the object of the conspiracy was",
"cheating by false personation under section 419, IPC, 1860, which is an offence",
"punishable with a three-year imprisonment, the mere fact that there were other non-",
cognizable offences for which too the accused had been charged would not vitiate the,
"trial in absence of sanction under section 196(1A)(2), (Cr PC, 1973), as that section is",
meant to be applicable to a case where the object of the conspiracy is to commit an,
offence punishable with less than two years' imprisonment.104. Where the act in,
"question was not done by the army officer in the discharge of his official duties, it was",
held that a sanction for his prosecution was not necessary.105.,
[s 120B.2] Can a company be prosecuted for Criminal conspiracy.—,
A corporation is virtually in the same position as any individual and may be convicted,
of common law as well as statutory offences including those requiring mens rea. The,
criminal liability of a corporation would arise when an offence is committed in relation,
to the business of the corporation by a person or body of persons in control of its,
"affairs. In such circumstances, it would be necessary to ascertain that the degree and",
control of the person or body of persons is so intense that a corporation may be said to,
think and act through that person or the body of persons.106.,
[s 120B.3] Signing differently in vakalatnama.—,
The fact was that the accused put their signatures in vakalatnama differently from their,
original ones. It has been alleged by the complainant that the accused petitioners have,
deliberately and wilfully put their signatures on the vakalatnama in collusion with each,
other like irresponsible persons in order to gain wrongfully and with a view to cheat and,
mislead the complainant. It was held that the alleged action of the petitioners in,
signing their own name on the vakalatnama and filing the same in the Court through,
their counsel is neither an offence nor prohibited by any law. When the alleged act itself,
"was not illegal, it cannot be said that there was any 'criminal conspiracy' and in",
"absence of the basis for a charge for criminal conspiracy, the petitioners cannot be",
"prosecuted or punished for the offence under section 120-B of the IPC, 1860.107.",
[s 120B.4] Seeking opinion.—,
"Merely taking someone's opinion, who is an outsider to litigation, before filing the reply",
in the Court would not undermine the administration of justice in any way and it is not,
indicative of criminal conspiracy.108.,
[s 120B.5] Hooch Tragedy case.—,
"In a case, the allegation was that all the accused persons hatched a criminal",
conspiracy and they created a well-oiled machinery for importing methyl alcohol to,
make spurious liquor. Accused diluted the spirit by adding water and sold it through,
their outlets. Many persons died due to the consumption of spurious liquor. Some,
persons lost their eyesight and number of others sustained grievous injuries. Supreme,
Court said that the whole business itself was a conspiracy. It may not be the,
conspiracy to mix the noxious substance but the fact of the matter is that in order to,
"succeed in the business, which itself was a conspiracy, they mixed or allowed to be",
mixed methanol and used it so freely that ultimately resulted in the tragedy. Conviction,
is upheld.109.,
[s 120B.6] Corruption cases.—,
The prosecution asserted that the appellants A1 to A4 had entered into a conspiracy,
"and in furtherance thereof, A1 who was a public servant, had come to possess assets",
"to the tune of Rs. 66.65 crores, disproportionate to her known sources of income,",
"during the period from 1991 to 1996, when she held the office of the Chief Minister of",
the State. The Supreme Court in respect to the charge of criminal conspiracy observed,
"that the free flow of money from one account to the other of the respondent's,",
firms/companies also proved beyond reasonable doubt that all the accused persons,
had actively participated in the criminal conspiracy to launder the ill-gotten wealth of,
A1 for purchasing properties in their names.110.,
[s 120B.7] Previous sanction.—,
No Court shall take cognizance of the offence of any criminal conspiracy punishable,
"under section 120B of the IPC, 1860, (45 of 1860), other than a criminal conspiracy to",
"commit an offence punishable with death, imprisonment for life or rigorous",
"imprisonment for a term of two years or upwards, unless the State Government or the",
District Magistrate has consented in writing to the initiation of the proceeding: Provided,
"that where the criminal conspiracy is one to which the provisions of section 195 apply,",
no such consent shall be necessary.111.,
2. Sentence.—Where the accused is charged both under section 109 as well as section,
"120B, IPC, 1860, and the offence abetted is shown to have been committed as a result",
"of the abetment, the abettor should be punished with the imprisonment provided for",
"the principal offence under section 109, IPC, 1860, and no separate sentence need be",
"recorded under section 120B IPC, 1860.112. Where the charge of conspiracy fails, the",
individual accused could still be convicted for the offences committed by them and,
sentenced accordingly.113. Where no jail term was awarded to the principal accused in,
"a conspiracy and he was let off with fine alone, it was held that substantive sentence of",
"imprisonment awarded to the other accused was wrongful and, therefore, they also",
were ordered to pay fine only.114. Where six of the seven persons accused of criminal,
"conspiracy were acquitted, remaining one accused could not be convicted merely for",
being the head of the section of the branch where fraud was alleged to have been,
committed.115. Where the appellant-accused was one of the active members of the,
criminal conspiracy along with other accused and hatched the plan to kill/eliminate the,
deceased and in furtherance thereof other accused persons successfully,
killed/eliminated the deceased and it was not the case of the appellant-accused and,
nor was urged also that his case fell under Section 120(2) so as to be awarded less,
"sentence as prescribed therein, the conviction and award of life sentence as prescribed",
"under Section 302 read with Section 120B, IPC, 1860 was held proper.116. The accused",
pleaded guilty to conspiring to cause a public nuisance. He conspired with others to,
interfere with a premier division football match by means of extinguishing the,
floodlights while the match was in progress. The object of doing so was to affect bets,
"placed on the match abroad, which depended on the score at the time when the lights",
were switched off and the match was abandoned. The plan was not put into effect and,
the accused and others were arrested before the match was due to take place. The,
accused would have received substantial reward for his role. He was sentenced to four,
years' imprisonment. His appeal was dismissed. The Court said that the practice of,
interfering with such an important sporting fixture was something which should be,
actively discouraged by severe sentences. The sentence could not be described as,
manifestly excessive.117.,
Law relating to Conspiracy as summarised by the Supreme Court in State of TN,
"through Superintendent of Police, CBI/SIT v Nalini, (AIR 1999 SC 2640 [LNIND 1999 SC",
1584] : (1999) 5 SCC 253 [LNIND 1999 SC 526] : JT 1999 (4) SC 106 [LNIND 1999 SC,
526] : 1999 Cr LJ 3124 ).,
"1. Under Section 120A, IPC, 1860, offence of criminal conspiracy is committed",
when two or more persons agree to do or cause to be done an illegal act or legal,
act by illegal means. When it is legal act by illegal means overt act is necessary.,
Offence of criminal conspiracy is exception to the general law where intent alone,
does not constitute crime. It is intention to commit crime and joining hands with,
"persons having the same intention. Not only the intention, but there has to be",
"agreement to carry out the object of the intention, which is an offence. The",
question for consideration in a case is did all the accused had the intention and,
did they agree that the crime be committed. It would not be enough for the,
"offence of conspiracy when some of the accused merely entertained a wish,",
"howsoever, horrendous it may be, that offence be committed.",
2. Acts subsequent to the achieving of object of conspiracy may tend to prove that,
a particular accused was party to the conspiracy. Once the object of conspiracy,
"has been achieved, any subsequent act, which may be unlawful, would not make",
the accused a part of the conspiracy like giving shelter to an absconder.,
3.,
Conspiracy is hatched in private or in secrecy. It is rarely possible to establish a,
"conspiracy by direct evidence. Usually, both the existence of the conspiracy and",
its objects have to be inferred from the circumstances and the conduct of the,
accused.,
"4. Conspirators may, for example, be enrolled in chain A enrolling B, B enrolling C,",
and so on and all will be members of the single conspiracy if they so intend and,
"agree, even though each member knows only the person who enrolled him and",
"the person whom he enrols. There may be a kind of umbrella-spoke enrolment,",
where a single person at the centre doing the enrolling and all the other members,
"being unknown to each other, though they know that there are to be other",
members. These are theories and in practice it may be difficult to tell whether the,
"conspiracy in a particular case falls into which category. It may, however, even",
overlap. But then there has to be present mutual interest. Persons may be,
members of single conspiracy even though each is ignorant of the identity of,
many others who may have diverse role to play. It is not a part of the crime of,
conspiracy that all the conspirators need to agree to play the same or an active,
role.,
"5. When two or more persons agree to commit a crime of conspiracy, then",
"regardless of making or considering any plans for its commission, and despite",
the fact that no step is taken by any such person to carry out their common,
"purpose, a crime is committed by each and every one who joins in the",
"agreement. There has thus, to be two conspirators and there may be more than",
that. To prove the charge of conspiracy it is not necessary that intended crime,
was committed or not. If committed it may further help prosecution to prove the,
charge of conspiracy.,
6. It is not necessary that all conspirators should agree to the common purpose at,
the same time. They may join with other conspirators at any time before the,
"consummation of the intended objective, and all are equally responsible. What",
part each conspirator is to play may not be known to everyone or the fact as to,
when a conspirator joined the conspiracy and when he left.,
7. A charge of conspiracy may prejudice the accused because it is forced them into,
a joint trial and the Court may consider the entire mass of evidence against every,
accused. Prosecution has to produce evidence not only to show that each of the,
accused has knowledge of object of conspiracy but also of the agreement. In the,
charge of conspiracy Court has to guard itself against the danger of unfairness to,
the accused. Introduction of evidence against some may result in the conviction,
"of all, which is to be avoided. By means of evidence in conspiracy, which is",
otherwise inadmissible in the trial of any other substantive offence prosecution,
tries to implicate the accused not only in the conspiracy itself but also in the,
substantive crime of the alleged conspirators. There is always difficult in tracing,
the precise contribution of each member of the conspiracy but then there has to,
be cogent and convincing evidence against each one of the accused charged,
"with the offence of conspiracy. As observed to Judge Learned Hand that ""this",
distinction is important today when many prosecutors seek to sweep within the,
dragnet of conspiracy all those who have been associated in any degree,
"whatever with the main offenders"".",
"8. As stated above it is the unlawful agreement and not its accomplishment, which",
is the gist or essence of the crime of conspiracy. Offence of criminal conspiracy,
is complete even though there is no agreement as to the means by which the,
"purpose is to be accomplished. It is the unlawful agreement, which is the",
gravamen of the crime of conspiracy. The unlawful agreement which amounts to,
"a conspiracy need not be formal or express, but may be inherent in and inferred",
"from the circumstances, especially declarations, acts and conduct of the",
conspirators. The agreement need not be entered into by all the parties to it at,
"the same time, but may be reached by successive actions evidencing their joining",
of the conspiracy.,
"9. It has been said that a criminal conspiracy is a partnership in crime, and that",
there is in each conspiracy a joint or mutual agency for the prosecution of a,
"common plan. Thus, if two or more persons enter into a conspiracy, any act done",
"by any of them pursuant to the agreement is, in contemplation of law, the act of",
each of them and they are jointly responsible therefor. This means that,
"everything said, written or done by any of the conspirators in execution or",
"furtherance of the common purpose is deemed to have been said, done, or",
written by each of them. And this joint responsibility extends not only to what is,
done by any of the conspirators pursuant to the original agreement but also to,
collateral acts incident to and growing out of the original purpose. A conspirator,
"is not responsible, however, for acts done by a co-conspirator after termination of",
the conspiracy. The joinder of a conspiracy by a new member does not create a,
"new conspiracy nor does it change the status of the other conspirators, and the",
mere fact that conspirators individually or in groups perform different tasks to a,
common end does not split up a conspiracy into several different conspiracies.,
"10. A man may join a conspiracy by word or by deed. However, criminal",
responsibility for a conspiracy requires more than a merely passive attitude,
towards an existing conspiracy. One who commits an overt act with knowledge,
of the conspiracy is guilty. And one who tacitly consents to the object of a,
"conspiracy and goes along with other conspirators, actually standing by while",
"the other but the conspiracy into effect, is guilty though he intends to take no",
active part in the crime.,
"1. Chapter VA (containing sections 120A and 120B) inserted by Act 8 of 1913, section 3.",
"91. Subs. by Act 26 of 1955, section 117 and Sch., for transportation for life (w.e.f. 1-1-1956).",
"92. State (NCT) of Delhi v Navjot Sandhu @ Afsan Guru, 2005 Cr LJ 3950 : (2005) 11 SCC 600",
[LNIND 2005 SC 580] .,
"93. State of MP v Sheetla Sahai, 2009 Cr LJ 4436 : (2009) 8 SCC 617 : (2009) 3 SCC(Cr) 901.",
"94. Alim Jan Bibi, (1937) 1 Cal 484 . It is not necessary that each and every conspirator must",
"have taken part in the commission of the act. State of HP v Krishanlal Pradhan, AIR 1987 SC 773",
[LNIND 1987 SC 131] : 1987 Cr LJ 709 : (1987) 2 SCC 17 [LNIND 1987 SC 131] . Govt of NCT of,
"Delhi v Jaspal Singh, (2003) 10 SCC 586 [LNIND 2003 SC 649] , essential requirements of charge",
"under the section. Ram Narayan Popli v CBI, AIR 2003 SC 2748 [LNIND 2003 SC 26] : (2003) 3",
"SCC 641 [LNIND 2003 SC 26] , statement of ingredients. Nazir Khan v State of Delhi, AIR 2003 SC",
"4427 [LNIND 2003 SC 696] : (2003) 8 SCC 461 [LNIND 2003 SC 696] , statement of ingredients",
and matters of proof.,
"95. Subbaiah, AIR 1961 SC 1241 [LNIND 1961 SC 95] . See also Mohd Hussain v KS Dalipsinghji,",
AIR 1970 SC 45 [LNIND 1969 SC 147] : (1970) 1 SCR 130 [LNIND 1969 SC 147] . See also,
"Jagdish Prasad v State of Bihar, 1990 Cr LJ 366 Pat, conspiracy with railway employees to",
procure allotment of wagons under cover of fake letters. State of Rajasthan v Govind Ram,
"Bagdiya, 2003 Cr LJ 1169 (Raj), the prosecution has to prove the elements of conspiracy. No",
proof was forthcoming in this case in the matter of allotment of house of any conspiracy among,
officials to manipulate the system.,
"96. Abdul Kadar v State, (1963) 65 Bom LR 864 . For an example of a failed prosecution under",
"this section see State of UP v Pheru Singh, AIR 1989 SC 1205 : 1989 Cr LJ 1135 . In Darshan",
"Singh v State of Punjab, AIR 1983 SC 554 [LNIND 1983 SC 95] : 1983 Cr LJ 985 : (1983) 2 SCC",
"411 [LNIND 1983 SC 95] , the Supreme Court considered it to be unbelievable that the accused",
hatched their plot while taking drinks in the presence of a stranger. For proof of conspiracy it,
often becomes necessary to convert one of the conspirators into an approver witness and this,
"may require corroboration. See Balwant Kaur v UT Chandigarh, AIR 1988 SC 139 [LNIND 1987 SC",
738] : 1988 Cr LJ 398 . The absence of one of the conspirators at one of their meetings does not,
by itself rule out his complicity. Conspiracies are hatched under cover of secrecy. They are,
"generally proved by circumstantial evidence, EK Chandrasenan v State of Kerala, AIR 1995 SC",
"1066 [LNIND 1995 SC 88] : 1995 Cr LJ 1445 ; Aniceto Lobo v State (Goa, Daman and Diu), AIR",
"1994 SC 1613 : 1994 Cr LJ 1582 : 1993 Supp (3) SCC 311 , conspiracy of three persons, one of",
"whom, being bank employee, took out blank drafts, the other forged signatures and third opened",
"accounts in fictitious names to encash the drafts, all of them were held to be equally guilty of",
the offence.,
"97. Esher Singh v State of AP, AIR 2004 SC 3030 [LNIND 2004 SC 329] : (2004) 11 SCC 585",
[LNIND 2004 SC 329] .,
"98. Damodar v State of Rajasthan, AIR 2003 SC 4414 [LNIND 2003 SC 803] : 2003 Cr LJ 5014 :",
"(2004) 12 SCC 336 [LNIND 2003 SC 803] . R Sai Bharathi v J Jayalalitha, AIR 2004 SC 692 [LNIND",
"2003 SC 1023] : 2004 Cr LJ 286 : (2004) 2 SCC 9 [LNIND 2003 SC 1023] , alleged conspiracy",
"was to dispose of by auction the property of a Govt Co at a low price, but the bids made by the",
alleged conspirators reflected a fair price. Ingredients of the section not made out. Hardeep,
"Singh Sohal v State of Punjab, AIR 2004 SC 4716 [LNIND 2004 SC 902] : (2004) 11 SCC 612",
[LNIND 2004 SC 1006] conspiracy for murder not proved. Another charge of conspiracy for,
"murder was rejected in Hem Raj v State of Punjab, AIR 2003 SC 4259 [LNIND 2003 SC 759] :",
"2003 Cr LJ 4987 : (2003) 12 SCC 241 [LNIND 2003 SC 759] . State of HP v Satya Dev Sharma,",
"(2002) 10 SCC 601 , criminal conspiracy between timber merchants and private landowners and",
Government officials for falling and misappropriating trees standing on Government land.,
"99. State of TN v Nalini, AIR 1999 SC 2640 [LNIND 1999 SC 1584] : 1999 Cr LJ 3124 . Under",
"TADA (repealed) such confession had the status of evidence. Ram Singh v State of HP, AIR 1997",
"SC 3483 [LNIND 1997 SC 1060] : 1997 AIR SCW 1331 : 1997 Cr LJ 4091 , in a murder by some",
"persons, the accused persons assisted them in causing disappearance of the dead body",
"secretly in furtherance of their conspiracy, their conviction under sections 201-120B was held to",
"be proper. Subhash Harnarayanji Laddha v State of Maharashtra, (2006) 12 SCC 545 [LNIND 2006",
"SC 1088] , conspiracy not proved. Mallanna v State of Karnataka, (2007) 8 SCC 523 [LNIND 2007",
"SC 1526] , conspiracy not proved.",
"100. R Balkrishna Pillai v State of Kerala, 1996 Cr LJ 757 (Ker); Devender Pal Singh v State (NCT)",
"of Delhi, 2002 Cr LJ 2034 (SC), acquittal of a co-accused on the ground of non-corroboration of",
the confessional statement did not have the effect of demolishing the prosecution regarding,
"conspiracy Saju v State of Kerala, 2001 Cr LJ 102 (SC), no evidence to show that the accused",
was responsible for pregnancy or insisted upon its termination. The accused and co-accused,
were fellow workers and seemed to be hired killers. They were seen together at the place of the,
incident both before and after it. That was held to be not sufficient to prove charge of,
"conspiracy against them. State of HP v Jai Lal, AIR 1999 SC 3318 [LNIND 1999 SC 798] : 1999 Cr",
LJ 4294 State Government scheme of purchasing infected apples from growers and destroying,
them. Allegations that some of them over charged by inflating weight. But no evidence of,
"experts about overweight, etc., charge not proved. Premlata v State of Rajasthan, 1998 Cr LJ",
"1430 (Raj), a charge-sheet was not quashed where there was evidence to believe that the two",
accused persons had conspired to produce a document for fulfilling the eligibility criteria for an,
"appointment. Central Bureau of Investigation v VC Shukla, AIR 1998 SC 1406 [LNIND 1998 SC",
"272] : 1998 Cr LJ 1905 , the prosecution could not prove that one of the two accused was a",
"party to the conspiracy. Arun Gulab Gawli v State of Maharashtra, 1998 Cr LJ 4481 (Bom) mere",
inference cannot invite punishment.,
"101. Mohd Amin v CBI, (2008) 15 SCC 49 [LNIND 2008 SC 2255] : (2009) 3 SCC (Cr) 693.",
"102. Soma Chakravarty v State, AIR 2007 SC 2149 [LNIND 2007 SC 632] : (2007) 5 SCC 403",
[LNIND 2007 SC 632] .,
"103. T Shankar Prasad v State of AP, AIR 2004 SC 1242 [LNIND 2004 SC 41] : 2004 Cr LJ 884 :",
(2004) 3 SCC 753 [LNIND 2004 SC 41] .,
"104. Yashpal v State, AIR 1977 SC 2433 [LNIND 1977 SC 304] : 1978 Cr LJ 189 . See also Vinod",
"Kumar Jain v State through CBI, 1991 Cr LJ 669 (Del); State of Bihar v Simranjit Singh Mann, 1987",
Cr LJ 999 (Pat).,
"105. Nirmal Puri (Lt Gen Retd) v UOI, 2002 Cr LJ 158 (Del).",
"106. Iridium India Telecom Ltd v Motorola Incorporated, AIR 2011 SC 20 [LNIND 2010 SC 1012] :",
2010 AIR (SCW) 6738 : JT 2010 (11) SC 492 [LNIND 2010 SC 1012] : (2011) 1 SCC 74 [LNIND,
2010 SC 1012] : (2010) 3 SCC(Cr) 1201 : 2010 (11) Scale 417 ; relied on Standard Chartered Bank,
"v Directorate of Enforcement, AIR 2005 SC 2622 [LNIND 2005 SC 476] : (2005) 4 SCC 530 [LNIND",
2005 SC 476] : 2005 SCC (Cr) 961.,
"107. Padam Chand v The State of Bihar, 2016 Cr LJ 4998 (Pat) : 2016 (3) PLJR 258 .",
"108. Sanjiv Rajendra Bhatt v UOI, 2016 Cr LJ 185 : (2016) 1 SCC 1 [LNIND 2015 SC 596] .",
"109. Chandran v State, AIR 2011 SC 1594 [LNIND 2011 SC 358] : (2011) 5 SCC 161 [LNIND 2011",
SC 358] : (2011) 2 SCC(Cr) 551 : (2011) 8 SCR 273 [LNIND 2011 SC 358] ; Also see Ravinder,
"Singh @ Ravi Pavar v State of Gujarat, AIR 2013 SC 1915 2013 Cr Lj 1832.",
"110. State of Karnataka v Selvi J Jayalalitha, 2017 (2) Scale 375 [LNIND 2017 SC 72] : 2017 (1)",
RCR (Criminal) 802.,
"111. Section 196(2) of Code of Criminal Procedure, 1973.",
"112. State of TN v Savithri, 1976 Cr LJ 37 (Mad).",
"113. State of Orissa v Bishnu Charan Muduli, 1985 Cr LJ 1573 (Ori).",
"114. CR Mehta v State of Maharashtra, 1993 Cr LJ 2863 (Bom). The Court referred to",
"Rameshwar Dayal v State of UP, 1971 (3) SCC 924 : 1972 SCC (Cr) 172.",
"115. BN Narasimha Rao v Govt of AP, 1995 Cr LJ 4181 (SC), reversing AP High Court. See also",
"Sayed Mohd Owais v State of Maharashtra, 2003 Cr LJ 303 (Bom).",
"116. Bilal Hajar v State, AIR 2018 SC 4780 [LNIND 2018 SC 520] .",
"117. R v Chee Kew Ong, (2001) 1 Cr App R (S) 117 [CA (Crim Div)].",
THE INDIAN PENAL CODE,
1.,
CHAPTER V-A CRIMINAL CONSPIRACY,
[s 120A] Definition of criminal conspiracy.,
"When two or more persons agree to do, or cause to be done,—",
"(1) an illegal act, or",
"(2) an act which is not illegal by illegal means, such an agreement is designated a",
criminal conspiracy:,
Provided that no agreement except an agreement to commit an offence shall,
amount to a criminal conspiracy unless some act besides the agreement is,
done by one or more parties to such agreement in pursuance thereof.,
Explanation.—It is immaterial whether the illegal act is the ultimate object of such,
"agreement, or is merely incidental to that object.",
COMMENT—,
Criminal conspiracy.—This chapter has introduced into the criminal law of India a new,
"offence, viz., the offence of criminal conspiracy. It came into existence by the",
"Criminal Law (Amendment) Act, 1913. Offence of criminal conspiracy is an exception",
to the general law where intent alone does not constitute crime. It is intention to,
commit crime and joining hands with persons having the same intention.2. Law,
making conspiracy a crime is designed to curb immoderate power to do mischief,
which is gained by a combination of the means. The encouragement and support,
"which co-conspirators give to one another rendering enterprises possible which, if left",
"to individual effort, would have been impossible, furnish the ground for visiting",
conspirators and abettors with condign punishment. The conspiracy is held to be,
continued and renewed as to all its members wherever and whenever any member of,
the conspiracy acts in furtherance of the common design. Offence of criminal,
conspiracy has its foundation in an agreement to commit an offence. A conspiracy,
"consists not merely in the intention of two or more, but in the agreement of two or",
more to do an unlawful act by unlawful means.3. A criminal conspiracy must be put to,
"action inasmuch as so long a crime is generated in the mind of an accused, it does",
"not become punishable. What is necessary is not thoughts, which may even be",
"criminal in character, often involuntary, but offence would be said to have been",
committed thereunder only when that take concrete shape of an agreement to do or,
cause to be done an illegal act or an act which although not illegal by illegal means,
and then if nothing further is done the agreement would give rise to a criminal,
conspiracy.4.,
[s 120A.1] Ingredients.—,
The ingredients of this offence are—,
(1) that there must be an agreement between the persons who are alleged to,
conspire; and,
(2) that the agreement should be,
"(i) for doing of an illegal act, or",
(ii) for doing by illegal means an act which may not itself be illegal.5.,
Meeting of minds of two or more persons for doing or causing to be done,
an illegal act or an act by illegal means is sine qua non of criminal,
conspiracy.6.,
"The most important ingredient of the offence being, the agreement between two or",
"more persons to do an illegal act. In a case where criminal conspiracy is alleged, the",
court must inquire whether the two persons are independently pursuing the same end,
or they have come together to pursue the unlawful object. The former does not render,
them as conspirators but the latter does. For the offence of conspiracy some kind of,
physical manifestation of agreement is required to be established. The express,
agreement need not be proved. The evidence as to the transmission of thoughts,
sharing the unlawful act is not sufficient. A conspiracy is a continuing offence which,
continues to subsist till it is executed or rescinded or frustrated by choice of necessity.,
During its subsistence whenever any one of the conspirators does an act or series of,
"acts, he would be held guilty under section 120-B of the Indian Penal Code, 1860 (IPC,",
1860).7.,
[s 120A.2] Elements of Criminal Conspiracy.—,
"(a) an object to be accomplished,",
"(b) a plan or scheme embodying means to accomplish that object,",
(c) an agreement or understanding between two or more of the accused persons,
"whereby, they become definitely committed to cooperate for the",
"accomplishment of the object by the means embodied in the agreement, or by",
"any effectual means, and",
(d) in the jurisdiction where the statute required an overt act.8.,
1. Two or more persons needed.—To constitute the offence of conspiracy there must,
be an agreement of two or more persons to do an act which is illegal or which is to be,
done by illegal means for one cannot conspire with oneself. In Topandas v State of,
"Bombay,9. which has been cited by the Supreme Court with approval in Haradhan",
"Chakrabarty v UOI,10. it was laid down that ""two or more persons must be parties to",
such an agreement and one person alone can never be held guilty of criminal,
"conspiracy for the simple reason that one cannot conspire with oneself."" The question",
of a single person being convicted for an offence of conspiracy was considered in,
"Bimbadhar Pradhan v The State of Orissa,11.,12. and held that It is not essential that",
more than one person should be convicted of the offence of criminal conspiracy. It is,
enough if the court is in a position to find that two or more persons were actually,
concerned in the criminal conspiracy. In the Red fort Attack Case13. the Supreme Court,
"found that it was nothing but a well-planned conspiracy, in which apart from sole",
"appellant, some others were also involved and convicted the sole appellant for criminal",
conspiracy.14. Under the common law since husband and wife constitute one person,
there cannot be any conspiracy to commit an offence if husband and wife are the only,
"parties to an agreement.15. ""It seems rather odd that though husband and wife by",
themselves alone cannot be convicted of an offence of conspiracy for agreeing to,
commit an offence but if two of them commit the self-same substantive offence they,
"can be convicted of that offence"".16. Fortunately this state of law does not exist in",
"India, where husband and wife by themselves alone can be parties to a criminal",
conspiracy. Where the husband is a party with some others in a conspiracy and his wife,
joined him in that with knowledge that he was involved with others to commit an,
"unlawful act, she would be guilty of the conspiracy.17. Since conspiracy requires at",
"least two persons, where two or more named persons only were charged and all but",
"one of them were acquitted, the remaining accused could not be convicted under",
"section 120B, IPC, 1860, as he could not have conspired with himself.18. In a similar",
"case before the Supreme Court, a military major was tried for theft of military goods",
along with nine others who were supposed to have abetted him. He was found guilty,
"along with one more accused and the rest were acquitted. On his appeal, the High",
Court quashed the judgment of the Court martial because there was no proof that he,
had removed the wheel drums. He was reinstated. In view of the acquittal and,
"reinstatement of the main accused, the matter of his co-accused came before the",
Supreme Court. He too was ordered to be acquitted and reinstated.19. The same rule,
obtained under the English common law provided two named persons were tried,
"together.20. This rule has now been abolished by section 5(8) of the Criminal Law Act,",
1977 which provides that unless conviction of one becomes inconsistent with the,
"acquittal of the other even one of the two conspirators can be convicted, e.g., where",
one was acquitted for want of sanction or on ground of being an exempted person. The,
"Bombay High Court has taken the same view in a case. Thus, where of the two accused",
one was a public servant and he had to be acquitted as he was prosecuted without,
"obtaining sanction under section 197, Code of Criminal Procedure, 1973 (Cr PC, 1973),",
the other could still be convicted on a charge of conspiracy as the acquittal of the other,
accused was not on facts but on technical ground and in spite of evidence establishing,
the factum of conspiracy.21.,
"The circumstances in which a single person can be tried and convicted have been thus,",
"stated in Kenny:22. ""But though there must be plurality of conspirators, it is not",
"necessary that all should be brought to trial together. One person may be indicted,",
"alone, for conspiring with other persons who are not in custody, or who are even",
"unknown to the indictors. Indeed, some of the conspirators may be unknown to the",
"rest, provided all are acting under the directions of one leader. There need not be",
"communication between each conspirator and every other, provided there be a design",
"common to all.""23. Thus, a wife knowing that her husband was involved with others in a",
"conspiracy, agreed with him that she would join the conspiracy and play her part, it was",
held that she thereby became guilty of conspiracy notwithstanding that the only person,
with whom she actually concluded the agreement was her husband.24.,
2. Agreement is gist of the offence.—The gist of the offence is the bare engagement,
"and association to break the law, whether any act be done in pursuance thereof by the",
conspirators or not.25. Meeting of minds is essential. Mere knowledge or discussion is,
not sufficient.26. It is intention to commit crime and joining hands with persons having,
the same intention. Not only the intention but the presence of an agreement to carry,
"out the object of the intention, is an offence. The question for consideration in a case is",
did all the accused had the intention and did they agree that the crime be committed. It,
would not be enough for the offence of conspiracy when some of the accused merely,
"entertained a wish, howsoever, horrendous it may be, that offence be committed.27. In",
"the absence of an agreement, a mere thought to commit a crime does not constitute",
the offence.28. The offence of conspiracy is a substantive offence. It renders the mere,
agreement to commit an offence punishable even if no offence takes place pursuant to,
"the illegal agreement.29. The object in view or the methods employed should be illegal,",
"as defined in section 43, (supra). A distinction is drawn between an agreement to",
commit an offence and an agreement of which either the object or the methods,
"employed are illegal but do not constitute an offence. In the case of the former, the",
"criminal conspiracy is completed by the act of agreement; in the case of the latter,",
there must be some act done by one or more of the parties to the agreement to give,
"effect to the object thereof, that is, there must be an overt act. An express agreement",
need not be proved. Evidence relating to transmission of thoughts leading to sharing of,
thought relating to the unlawful act is sufficient.30. A wrong judgment or an inaccurate,
"or incorrect approach or poor management by itself, even after due deliberations",
"between Ministers or even with Prime Minister, by itself cannot be said to be a product",
of criminal conspiracy.31. A few bits here and a few bits there on which the prosecution,
relies cannot be held to be adequate for connecting the accused with the commission,
of the crime of criminal conspiracy. It has to be shown that all means adopted and,
illegal acts done were in furtherance of the object of conspiracy hatched. The,
circumstances relied for the purposes of drawing an inference should be prior in point,
of time than the actual commission of the offence in furtherance of the alleged,
conspiracy.32.,
The meeting of the minds to form a criminal conspiracy has to be proved by adducing,
"substantive evidence, in cases where the circumstantial evidence is incomplete or",
vague.33.,
[s 120A.3] Actus reus.—,
"The actus reus in a conspiracy is the agreement to execute the illegal conduct, not the",
execution of it. It is not enough that two or more persons pursued the same unlawful,
object at the same time or in the same place; it is necessary to show a meeting of,
"minds, a consensus to give effect to an unlawful purpose. It is not, however, necessary",
that each conspirator should have been in communication with every other.34.,
[s 120A.4] Participation.—,
It is not necessary that all the conspirators should participate from the inception to the,
end of the conspiracy; some may join the conspiracy after the time when such intention,
was first entertained by any one of them and some others may quit from the,
conspiracy. All of them cannot be treated as conspirators. Where in pursuance of the,
agreement the conspirators commit offences individually or adopt illegal means to do,
"a legal act which has a nexus to the object of conspiracy, all of them will be liable for",
such offences even if some of them have not actively participated in the commission,
"of those offences.35. To constitute a conspiracy, meeting of mind of two or more",
persons for doing an illegal act or an act by illegal means is the first and primary,
condition and it is not necessary that all the conspirators must know each and every,
detail of conspiracy. Neither is it necessary that every one of the conspirators takes,
active part in the commission of each and every conspiratorial act.36. Even if some,
steps are resorted to by one or two of the conspirators without the knowledge of the,
others it will not affect the culpability of those others when they are associated with the,
object of the conspiracy.37. The rationale is that criminal acts done in furtherance of a,
conspiracy may be sufficiently dependent upon the encouragement and support of the,
group as a whole to warrant treating each member as a causal agent to each act.,
"Under this view, which of the conspirators committed the substantive offence would be",
less significant in determining the defendant's liability than the fact that the crime was,
performed as a part of a larger division of labour to which the accused had also,
contributed his efforts.38.,
[s 120A.5] Overt act.—,
No overt act is necessary.39. Where the allegation against the third accused was that,
"he was merely standing nearby when the other accused committed the murder, he",
"cannot be charged for an offence under sections 302/120B, IPC, 1860, in the absence",
of any other reliable evidence.40. In a case where the agreement is for accomplishment,
"of an act which by itself constitutes an offence, then in that event, unless the Statute so",
"requires, no overt act is necessary to be proved by the prosecution because in such a",
fact-situation criminal conspiracy is established by proving such an agreement.41.,
"When two agree to carry it into effect, the very plot is an act in itself, and an act of each",
"of the parties, promise against promise, actus contra actum, capable of being enforced,",
"if lawful, punishable if for a criminal object or for use of criminal means.42. Where the",
conspiracy alleged is with regard to the commission of a serious crime as,
contemplated by section 120-B read with the proviso to sub-section (2) of section,
"120A, then the mere proof of an agreement is enough to bring about conviction under",
section 120B and the proof of any overt act by the accused or by any of them would not,
"be necessary.43. The illegal act may or may not be done in pursuance of agreement, but",
the very agreement is an offence and is punishable.44.,
It is not an ingredient of the offence under this section that all the parties should agree,
to do a single illegal act. It may comprise the commission of a number of acts. Where,
"the accused are charged with having conspired to do three categories of illegal acts,",
the mere fact that all of them could not be convicted separately in respect of each of,
the offences has no relevancy in considering the question whether the offence of,
conspiracy has been committed. They can all be held guilty of the offence of,
"conspiracy to do illegal acts, though for individual offences all of them may not be",
liable.45. Where the agreement between the accused is a conspiracy to do or continue,
"to do something which is illegal, it is immaterial whether the agreement to do any of",
the acts in furtherance of the commission of the offence do not strictly amount to an,
offence. The entire agreement must be viewed as a whole and it has to be ascertained,
as to what in fact the conspirators intended to do or the object they wanted to,
achieve.46. It is not necessary that each member of a conspiracy must know each other,
or all the details of the conspiracy.47. It is also not necessary that every conspirator,
"must have taken part in each and every act done in pursuance of a conspiracy.48. It is,",
"however, necessary that a charge of conspiracy should contain particulars of the",
"names of the place or places where it was hatched, persons hatching it, how was it",
hatched and what the purpose of the conspiracy was.49.,
"In the matter50. of the assassination of the then Prime Minister of India, Smt. Indira",
"Gandhi, one of the two actual killers and two conspirators were brought to trial. Both",
the conspirators were away from the scene of the crime. One of them was acquitted by,
the Supreme Court. His movements after the incident were not properly proved. The,
documents recovered from his custody did not indicate any agreement between him,
and the other accused. They only showed his agitated mind which was in the grip of an,
avenging mood. This is not enough to establish an agreement with anybody. On the,
"other hand, about Kehar Singh, it was shown that he was having secret talks with one of",
"the actual killers, that they were trying all the time to keep themselves away from their",
"wives and children, they avoided the company of the other members of the family and",
"on being asked what they were talking about, they remained mysterious. These facts",
were sufficient to show that they were planning something secret. This was enough to,
constitute a prima facie evidence of conspiracy within the meaning of section 10 of the,
"Evidence Act, 1872 and to bring them within the jacket of punishment of all for the act",
of one.,
"Privacy and secrecy are more characteristics of a conspiracy, than of a loud discussion",
in an elevated place open to public view. Direct evidence in proof of a conspiracy is,
seldom available; offence of conspiracy can be proved by either direct or circumstantial,
evidence. It is not always possible to give affirmative evidence about the date of the,
"formation of the criminal conspiracy, about the persons who took part in the formation",
"of the conspiracy, about the object, which the objectors set before themselves as the",
"object of conspiracy, and about the manner in which the object of conspiracy is to be",
"carried out, all this is necessarily a matter of inference.51. Thus, a conspiracy is an",
inference from circumstances. There cannot always be much direct evidence about it.,
Conspiracy can be inferred even from the circumstances giving rise to a conclusive or,
irresistible inference of an agreement between two or more persons to commit an,
offence.52. It is manifest that the meeting of minds of two or more persons is a sine,
qua non but it may not be possible to establish by direct evidence. Its existence and,
objective can be inferred from the surrounding circumstances and parties conduct. It is,
"necessary that the incriminating circumstances must form a chain of events, from",
which a conclusion about the accused's guilt could be drawn. The help of,
circumstantial evidence is necessary because a conspiracy is always hatched in,
secrecy. It becomes difficult to locate any direct evidence.53. A businessman was in,
great need of money for completing the construction of a theatre complex. He was,
approached by a person who told him that his financier friend would help him with,
money. This was followed by a number of meetings between him and the team of,
financiers during which documents were executed and money released in cash which,
cash was found to be counterfeit currency. Every member of the team was held to be,
guilty of conspiracy and of cheating under section 420.54. Seizure of unexplained,
currency notes from the possession of a person who claimed to be the owner of the,
money was held to be not sufficient to connect him with the person who was the main,
"accused of smuggling currency, though he was a relative of the main accused.55.",
Where a bank accountant dishonestly agreed with others to conceal dishonour of,
"cheques purchased by the bank and thus, causing risk to the economic interests of the",
"bank, he was held guilty of conspiring to defraud whatever his motive or underlying",
purpose might have been (he contended that he acted in the interest of the bank) and,
even though he had no desire to harm the victim and no loss was actually caused.56.,
"Officials of a nationalised bank, in violation of departmental instructions, allowing",
advance credits on banker's cheques to the account of a customer dealing in,
securities. Advance credits were allowed before the cheques were sent for clearance,
and in some cases even before the cheques were received. This allowed the customer,
to take pecuniary advantage by overdrawing money from his account which he was not,
"entitled to. Public funds were thus, misused. It was held that a criminal conspiracy",
between bank officials and the customer stood proved. One of them was acquitted,
because no conclusive evidence could be found against him.57.,
A criminal conspiracy can be proved by circumstantial evidence or by necessary,
implication. A smaller conspiracy may be the part of a larger conspiracy. It was held on,
facts that a criminal conspiracy was established when officials of two public sector,
banks acted in such a way that the transaction appeared to be an inter-banking,
transaction relating to call money which the borrowing bank was supposed to retain,
with itself but the transaction was in fact meant to help a private party to use public,
"funds for private purpose.58. Where the accused, an LIC agent, was charged with",
"cheating the LIC by entering into conspiracy with the co-accused, a Development",
"Officer, on the allegation that insurance policies were got issued on the basis of fake",
and forged documents and he received premium commission and bonus in respect of,
"those policies, the accused was entitled to be acquitted because the forging was done",
"by the co-accused without the knowledge and consent of the accused. Bonus,",
"Commission, etc., in respect of those policies were credited to his account only in the",
"normal course.59. A 'vaid' and an 'up-vaid' who, in conspiracy with others made bogus",
medical bills for government servants and got them duly passed through their,
"Ayurvedic Aushadhalaya for payment of 30 per cent of the amount of the bills, were",
caught in a trap and the tainted money was recovered from the accused. One of the,
accused died during the pendency of appeal. Conviction of the other under sections,
120B/468 was held to be proper.60.,
A group of friends went to a club for fun and frolic. One of them (the main accused),
suddenly fired at the bar mate for her refusal to serve drinks. The others were unaware,
of the accused carrying a loaded pistol. They had stayed at the club for about two and,
a half hours. The Court said that this could not constitute an evidence of conspiracy.,
The Court also said that the fact that the group members dispersed separately and,
also helped to retrieve the murder weapon would not suggest conspiracy for murder.61.,
[s 120A.6] Same verdict in respect of each not necessary.—,
It has been held that the rule that both parties to a conspiracy had to be convicted or,
"acquitted has been abrogated by the Criminal Law Act, 1977 (English). The important",
question is whether there is a material difference in the evidence against the two.62.,
[s 120A.7] Sections 34 and 120A.—,
There is not much substantial difference between conspiracy as defined in section,
"120A and acting on a common intention, as contemplated in section 34. While in the",
"former, the gist of the offence is bare engagement and association to break the law",
"even though the illegal act does not follow, the gist of the offence under section 34 is",
the commission of a criminal act in furtherance of a common intention of all the,
"offenders, which means that there should be unity of criminal behaviour resulting in",
"something, for which an individual would be punishable, if it were all done by himself",
alone.63. Another point of difference is that a single person cannot be convicted under,
"section 120A and, therefore, where all the accused except one were acquitted, the",
"Supreme Court ordered his acquittal also,64. whereas under section 34, read with some",
"other specific offence, a single person can be convicted because each is responsible",
for the acts of all others.,
[s 120A.8] Sections 107 and 120A.—,
For an offence under this section a mere agreement is enough if the agreement is to,
"commit an offence. But, for an offence under the second clause of section 107 an act",
or illegal omission must take place in pursuance of the conspiracy and a mere,
agreement is not enough.65.,
"3. How proved (section 120A IPC, 1860 and section 10 Evidence Act, 1872-Doctrine",
of agency).—There is no difference between the mode of proof of the offence of,
"conspiracy and that of any other offence, it can be established by direct evidence or by",
circumstantial evidence. But section 10 of the Evidence Act introduces the doctrine of,
"agency and if the conditions laid down therein are satisfied, the acts done by one are",
admissible against the coconspirators. When men enter into an agreement for an,
"unlawful end, they become ad-hoc agents for one another and have made a partnership",
"in crime. The said section reads: ""Where there is reasonable ground to believe that two",
"or more persons have conspired together to commit an offence or an actionable wrong,",
"anything said, done or written by any one of such persons in reference to their common",
"intention, after the time when such intention was first entertained by any one of them is",
"a relevant fact against each of the persons believed to be so conspiring, as well as for",
the purpose of proving the existence of the conspiracy as for the purpose of showing,
"that any such person was party to it.""",
"The section can be analysed as follows: ""(1) There shall be a prima facie evidence",
affording a reasonable ground for a Court to believe that two or more persons are,
"members of a conspiracy; (2) if the said condition is fulfilled, anything said, done or",
written by any one of them in reference to their common intention will be evidence,
"against the other; (3) anything said, done or written by him should have been said, done",
or written by him after the intention was formed by any one of them; (4) it would also,
be relevant for the said purpose against another who entered the conspiracy whether it,
"was said, done or written before he entered the conspiracy or after he left it; and (5) it",
"can only be used against a coconspirator and not in his favour.""66.",
Since conspiracy is often hatched up in utmost secrecy it is mostly impossible to prove,
"conspiracy by direct evidence. It has, oftener than not, to be inferred from the acts,",
statements and conduct of the parties to the conspiracy.67. The circumstances proved,
"before, during and after the occurrence have to be considered to decide about the",
"complicity of the accused.68. If it is proved that the accused pursued, by their acts, the",
"same object often by the same means, one performing one part of the act and the",
other another part of the same act so as to complete it with a view to attainment of the,
"object which they were pursuing, the Court is at liberty to draw the inference that they",
"conspired together to effect that object.69. It should, however, be remembered that",
"where there is no direct evidence, for example through the evidence of an approver, and",
"the case for the prosecution is dependent on circumstantial evidence alone, it is",
necessary for the prosecution to prove and establish such circumstances as would,
lead to the only conclusion of existence of a criminal conspiracy and rule out the theory,
"of innocence.70. Thus, chairman of a large cooperative society cannot be punished",
vicariously for the acts of others as mens rea cannot be excluded in a criminal case. As,
a chairman he had to deal with various matters and it would have been impossible for,
him to look into every detail to find out if someone was committing any criminal breach,
"of trust.71. Similarly, a case of conspiracy to misappropriate cash entrusted to the",
accused is not made out merely from the audit report without any evidence of shortage,
on actual verification of cash as mistakes and even double entries may be made bona,
fide while preparing the account.72. The onus is on the prosecution to prove the charge,
"of conspiracy by cogent evidence, direct or circumstantial.73. One more principle which",
deserves notice is that the cumulative effect of the proved circumstances should be,
taken into account in determining the guilt of the accused rather than adopting an,
"isolated approach to each of the circumstances. Of course, each one of the",
"circumstances should be proved beyond reasonable doubt. Lastly, in regard to the",
"appreciation of evidence relating to the conspiracy, the Court must take care to see that",
the acts or conduct of the parties must be conscious and clear enough to infer their,
concurrence as to the common design and its execution.74.,
[s 120A.9] Inference of conspiracy.—,
It is a matter of common experience that direct evidence to prove conspiracy is rarely,
"available.75. Thus, it is extremely difficult to adduce direct evidence to prove",
conspiracy. Existence of conspiracy and its objective can be inferred from the,
"surrounding circumstances and the conduct of the accused. In some cases, indulgence",
in the illegal act or legal act by illegal means may be inferred from the knowledge,
itself.76. It can be a matter of inference drawn by the Court after considering whether,
the basic facts and circumstances on the basis of which inference is drawn have been,
proved beyond all reasonable doubts and that no other conclusion except that of the,
"complicity of Accused to have agreed to commit an offence is evident.77. Accordingly,",
the circumstances proved before and after the occurrence have to be considered to,
decide about the complicity of the accused. Even if some acts are proved to have been,
"committed, it must be clear that they were so committed in pursuance of an agreement",
made between the accused persons who were parties to the alleged conspiracy.,
Inferences from such proved circumstances regarding the guilt may be drawn only,
when such circumstances are incapable of any other reasonable explanation. An,
offence of conspiracy cannot be deemed to have been established on mere suspicion,
and surmises or inference which are not supported by cogent and acceptable evidence.,
Inferences from such proved circumstances regarding the guilt may be drawn only,
when such circumstances are incapable of any other reasonable explanation. To,
establish a charge of conspiracy knowledge about indulgence in either an illegal act or,
"a legal act by illegal means is necessary. In some cases, intent of unlawful use being",
made of the goods or services in question may be inferred from the knowledge,
"itself.78. This apart, the prosecution has not to establish that a particular unlawful use",
"was intended, so long as the goods or service in question could not be put to any lawful",
"use. Finally when the ultimate offence consists of a chain of actions, it would not be",
"necessary for the prosecution to establish, to bring home the charge of conspiracy, that",
each of the conspirators had the knowledge of what the collaborator would do.79.,
"One of the accused persons, a foreign national, was found staying in the country",
without valid passport and visa. His movement to various places with the main,
accused was established. A large quantity of arms and ammunition was recovered,
from the place occupied by the main accused. The Court said that an inference of,
criminal conspiracy could be drawn.80. The Court also said that the appeal against,
conviction of the main accused was dismissed would not be sufficient to say that the,
charge of conspiracy against other accused would be deemed to be proved.81.,
"Circumstances proved before, during and after the occurrence of the crime have to be",
considered together to decide about the complicity of the accused.82. Circumstantial,
evidence was based on the recovery of the scooter used by the executant and alleged,
"to have been owned by a co-conspirator, but the recovery was not based on any",
"information given by the accused, but by one witness. The Supreme Court held that no",
circumstantial evidence was proved against any of the conspirators.83.,
"[s 120A.10] Circumstantial evidence, inference must be backed by evidence.—",
Most of the circumstances stated as against the accused were not proved. Merely,
based on the circumstance that the accused had filed a civil suit against the deceased,
"for restraining him from doing a business he cannot be convicted. Moreover, there was",
"no specific evidence as to who the conspirators were, where and when the conspiracy",
"was hatched, what the specific purpose of such a conspiracy was and whether it was",
relating to the elimination of the deceased.84. The law is well established that,
conspiracy cannot be proved merely on the basis of inferences. The inferences have to,
be backed by evidence.85.,
The Court for the purpose of arriving at a finding as to whether the said offence has,
been committed or not may take into consideration the circumstantial evidence.,
"However, while doing so, it must bear in mind that the meeting of minds is essential",
and mere knowledge or discussion would not be sufficient.86. In Mukesh v State for,
"NCT of Delhi, Criminal Appeal Nos. 607–608 of 2017, (popular as Nirbhaya Case) the",
criminal conspiracy was proved by the sequence of events and the conduct of the,
accused.,
In the conspiracy for assassination of the former PM (Rajiv Gandhi) one of the accused,
persons at one point of time in his confessional statement said that he had a strong,
suspicion that Rajiv Gandhi was the target of the accused persons. The Court said that,
"this suspicion did not make him a member of the conspiracy. His association, however",
strong with the main conspirators would not make him a member of the conspiracy by,
"itself. But those who were in the thick of the conspiracy, for example, one who",
"purchased the battery for explosion of human body, their conviction for the main",
offence was proper. But mere association with LTTE was not sufficient nor the fact that,
messages about arrests were sent by certain persons.87.,
[s 120A.11] Contacts through telephone.—,
Where the case against the appellants A2 to A4 is that they had hatched a conspiracy,
with appellant A1 to kill the deceased and the case against A1 was proved as per the,
"'last seen theory', and to prove the conspiracy the prosecution relied on the",
circumstance that there were frequent phone calls among the accused some days,
"around the date of murder, and the recovery of some vehicles; the Supreme Court held",
that the telephonic calls and the recovery may raise suspicion against the accused but,
mere suspicion by itself cannot take the place of proof.88.,
[s 120A.12] Between bank officials.—,
Criminal conspiracy was taken to be established when officials of two public sector,
banks acted in such a way that the transaction in question appeared to be an inter-,
banking transaction relating to call money which the borrowing bank was supposed to,
retain with itself. The transaction was in fact formalised for the purpose of helping a,
private party to use public funds for a private purpose.89.,
[s 120A.13] Approval of television serial.—,
The accused was the director of Doordarshan. The allegation against him was that he,
continued a serial which was approved at lower rates by an earlier director. Each,
director worked at different point of time. They did not work together. Their postings,
were official postings. It was difficult to infer any conspiracy between them for,
continuing the telecast. The investigation launched against the director was liable to be,
quashed.90.,
"1. Chapter VA (containing sections 120A and 120B) inserted by Act 8 of 1913, section 3.",
"2. State through Superintendent of Police, CBI/SIT v Nalini, reported in (1999) 5 SCC 253 [LNIND",
1999 SC 526] .,
"3. Pratapbhai Hamirbhai Solanki v State of Gujarat, (2013) 1 SCC 613 [LNIND 2012 SC 1033] :",
2012 (10) Scale 237 [LNIND 2012 SC 1033] relying on Ram Narayan Popli v Central Bureau of,
"Investigation, (2003) 3 SCC 641 [LNIND 2003 SC 26] .",
"4. State of MP v Sheetla Sahai, 2009 Cr LJ 4436 : (2009) 8 SCC 617 : (2009) 3 SCC(Cr) 901.",
"5. Yogesh v State of Maharashtra, AIR 2008 SC 2991 [LNIND 2008 SC 979] : 2008 Cr LJ 3872 :",
"(2008) 10 SCC 394 [LNIND 2008 SC 979] ; S Arul Raja v State of TN, reported in, 2010 (8) SCC",
"233 [LNIND 2010 SC 689] ; Mohan Singh v State of Bihar, AIR 2011 SC 3534 [LNIND 2011 SC 820]",
: 2011 Cr LJ 4837 : (2011) 9 SCC 272 [LNIND 2011 SC 820] ; Central Bureau of Investigation,
"Hyderabad v K Narayana Rao, 2012 AIR SCW 5139 : 2012 Cr LJ 4610 : JT 2012 (9) SC 359",
[LNIND 2012 SC 569] : (2012) 9 SCC 512 [LNIND 2012 SC 569] : 2012 (9) Scale 228 [LNIND 2012,
"SC 569] ; Ajay Aggarwal v UOI, (AIR 1993 SC 1637 [LNIND 1993 SC 431] : 1993 AIR SCW 1866 :",
1993 Cr LJ 2516 ) : (1993) 3 SCC 609 [LNIND 1993 SC 431] .,
"6. Rajiv Kumar v State of UP, AIR 2017 SC 3772 [LNIND 2017 SC 367] .",
"7. Pratapbhai Hamirbhai Solanki v State of Gujarat, (2013) 1 SCC 613 [LNIND 2012 SC 1033] :",
2012 Mad LJ (Cr) 532 : 2012 (10) Scale 237 [LNIND 2012 SC 1033] ; Damodar v State of,
"Rajasthan, (2004) 12 SCC 336 [LNIND 2003 SC 803] ; Kehar Singh v State (Delhi Admn), (1988) 3",
"SCC 609 [LNIND 1988 SC 887] ; State of Maharashtra v Somnath Thapa, (1996) 4 SCC 659",
[LNIND 1996 SC 776] .,
"8. Ram Narayan Popli v Central Bureau of Investigation, (2003) 3 SCC 641 [LNIND 2003 SC 26] .",
"9. Topandas v State of Bombay, AIR 1956 SC 33 [LNIND 1955 SC 78] : 1956 Cr LJ 138 : (1955) 2",
"SCR 881 [LNIND 1955 SC 78] . The ruling in Topandas case, AIR 1956 SC 33 [LNIND 1955 SC 78]",
"and Fakhruddin case, AIR 1967 SC 1326 [LNIND 1966 SC 307] were not followed in Sanichar",
"Sahni v State of Bihar, (2009) 7 SCC 198 [LNIND 2009 SC 1350] : (2009) 3 SCC (Cr) 347, because",
"here only one person was charged under section 120-B and for no other offence, and his co-",
"accused was charged with another offence but not under section 120-B, the court said that the",
"charge was not properly framed. In the earlier cases, more than one were charged with",
"conspiracy, all but one were acquitted, the single one could not be convicted. He was convicted",
for murder which was proved against him.,
"10. Haradhan Chakrabarty v UOI, AIR 1990 SC 1210 [LNIND 1990 SC 57] : 1990 Cr LJ 1246 :",
(1990) 2 SCC 143 [LNIND 1990 SC 57] .,
"11. See also Thakur H v State of HP, 2013 Cr LJ 1704 (HP).",
"12. Bimbadhar Pradhan v The State of Orissa, AIR 1956 SC 469 [LNIND 1956 SC 25] .",
"13. Mohd Arif v State of NCT of Delhi, JT 2011 (9) SC 563 [LNIND 2011 SC 753] : (2011) 13 SCC",
621 [LNIND 2011 SC 753] : (2011) 10 SCR 56 [LNIND 2011 SC 753] : 2011 (8) Scale 328 [LNIND,
2011 SC 753] .,
"14. McDowell, (1966) 1 All ER 193 : (1965) 3 WLR 1138 ; Rex v IRC Haulage, (1944) KB 551 :",
"(1944) 1 All ER 691 . Central Bureau of Investigation v VC Shukla, AIR 1998 SC 1406 [LNIND 1998",
"SC 272] : 1998 Cr LJ 1905 ; Ajay Kumar Rana v State of Bihar, 2001 Cr LJ 3837 (Pat).",
"15. Mowji, (1957) All ER 385 : (1957) 2 WLR 277 . See Glanville Williams, Legal Unity of Husband",
"and Wife, 10 Modern LR 16 (1947). ""But either spouse may be convicted of inciting the other to",
"commit a crime if such be proved."" See Kenny, 450, p 428, Outlines Of Criminal Law, 19th Edn",
1966.,
"16. Cross & Jones : Introduction To Criminal Law, 9th Edn, p 343.",
"17. R v Charstny, (1991) 1 WLR 1381 (CA).",
"18. Bhagat Ram, AIR 1972 SC 1502 [LNIND 1972 SC 72] : 1972 Cr LJ 909 ; Tapandas, AIR 1956",
"SC 33 [LNIND 1955 SC 78] : (1955) 2 SCR 881 [LNIND 1955 SC 78] ; Fakhruddin, AIR 1967 SC",
"1326 [LNIND 1966 SC 307] : 1967 Cr LJ 1197 ; See also State v Dilbagh Rai, 1986 Cr LJ 138",
(Delhi).,
"19. Relying upon Faguna Kanta Nath v State of Assam, AIR 1959 SC 673 [LNIND 1959 SC 2] :",
"1959 Cr LJ 90 : 1959 Supp 2 SCR 1, where also the acquittal of the co-accused automatically",
"followed the acquittal of the main accused; Madan Lal Bhandari v State of Rajasthan, AIR 1970",
SC 436 [LNIND 1969 SC 230] : 1970 Cr LJ 519 : (1969) 2 SCC 385 [LNIND 1969 SC 230] : (1970),
"1 SCR 688 [LNIND 1969 SC 230] , the nurse causing miscarriage acquitted, the conspirator also",
acquitted.,
"20. Plummer v State, (1902) 2 KB 339 ; Coughlan (1976) 64 Cr App Rep 11 .",
"21. Pradumna, 1981 Cr LJ 1873 (Bom).",
"22. JE Cecil Turner, Kenny's Outlines of Criminal Law, 428, 19th Edn, 1966.",
"23. Citing R v Myrick and Ribuffi, (1929) 21 Cr App R 94 TAC.",
"24. Regina v Chrastry, (1991) 1 WLR 1381 (CA). Kuldeep Singh v State of Rajasthan, 2001 Cr LJ",
"479 (SC), the only evidence against one of the accused conspirators was that he was seen",
moving with others to the house of the deceased. This was held to be not sufficient to make him,
a part of the conspiracy or participant in murder.,
"25. Mohammad Ismail, (1936) Nag 152; Bimbadhar Pradhan, (1956) Cut 409 SC; EG Barsay, AIR",
1961 SC 1762 [LNIND 1961 SC 196] : 1962 (2) SCR 195 [LNIND 1961 SC 196] ; Chaman Lal v,
"State of Punjab, (2009) 11 SCC 721 [LNIND 2009 SC 721] AIR 2009 SC 2972 [LNIND 2009 SC",
"721] , requisites of the offence restated.",
"26. Sudhir Shantilal Mehta v CBI, (2009) 8 SCC 1 [LNIND 2009 SC 1652] : (2009) 3 SCC (Cr) 646 :",
"Baldev Singh v State of Punjab, (2009) 6 SCC 564 [LNIND 2009 SC 1151] : (2009) 3 SCC (Cr) 66.",
"27. State through Superintendent of Police, CBI/SIT v Nalini, reported in (1999) 5 SCC 253 [LNIND",
"1999 SC 526] Mere knowledge, or even discussion, of the plan is not, per se enough; Russell on",
"Crimes, 12th Edn, vol I, quoted in Kehar Singh v State (Delhi Administration), 1988 (3) SCC 609",
[LNIND 1988 SC 887] at 731.,
"28. R Venkatakrishnan v CBI, (2009) 11 SCC 737 [LNIND 2009 SC 1653] .",
"29. Yogesh v State of Maharashtra, AIR 2008 SC 2991 [LNIND 2008 SC 979] : 2008 Cr LJ 3872 :",
(2008) 10 SCC 394 [LNIND 2008 SC 979] .,
"30. Esher Singh v State of AP, AIR 2004 SC 3030 [LNIND 2004 SC 329] : (2004) 11 SCC 585",
"[LNIND 2004 SC 329] . K Hashim v State of TN, AIR 2005 SC 128 [LNIND 2004 SC 1142] : (2005)",
"1 SCC 237 [LNIND 2004 SC 1142] , the court enumerated four elements of criminal conspiracy,",
the essence is an unlawful agreement and it is complete when the agreement is framed. A,
design resting in mind only does not make out the offence.,
"31. Subramanian Swamy v A Raja, AIR 2012 SC 3336 [LNIND 2012 SC 498] : 2012 Cr LJ 4443 :",
(2012) 9 SCC 257 [LNIND 2012 SC 498] (Involvement of finance minister in 2G Spectrum Case) -,
Criminal conspiracy cannot be inferred on the mere fact that there were official discussions,
"between the officers of the MoF and that of DoT and between two Ministers, which are all",
"recorded. Suspicion, however, strong, cannot take the place of legal proof and the meeting",
between Shri P Chidambaram and Shri A Raja would not by itself be sufficient to infer the,
existence of a criminal conspiracy so as to indict Shri P. Chidambaram.,
"32. Esher Singh v State of AP, 2004 (11) SCC 585 [LNIND 2004 SC 329] .",
"33. Gulam Sarbar v State of Bihar, 2014 Cr LJ 34 : (2014 ) 3 SCC 401.",
"34. Chaman Lal v State of Punjab, AIR 2009 SC 2972 [LNIND 2009 SC 721] : (2009) 11 SCC 721",
[LNIND 2009 SC 721] : (2010) 1 SCC(Cr) 159.,
"35. State through Superintendent of Police, CBI/SIT v Nalini, reported in (1999) 5 SCC 253",
"[LNIND 1999 SC 526] ; State of HP v Krishan Lal Pardhan, ( AIR 1987 SC 773 [LNIND 1987 SC",
131] : 1987 Cr LJ 709 ) : (1987) 2 SCC 17 [LNIND 1987 SC 131] .,
"36. K R Purushothaman v State, AIR 2006 SC 35 [LNIND 2005 SC 842] : (2005) 12 SCC 631",
"[LNIND 2005 SC 842] ; approved in John Pandian v State Rep by Inspector of Police, TN, AIR 2011",
SC (Supp) 531 : (2011) 3 SCC(Cr) 550 : 2010 (13) Scale 13.,
"37. Yash Pal Mittal v State of Punjab, AIR 1977 SC 2433 [LNIND 1977 SC 304] : 1978 Cr LJ 189 :",
(1977) 4 SCC 540 [LNIND 1977 SC 304] .,
"38. Firozuddin Basheeruddin v State, 2001 (7) SCC 596 [LNIND 2001 SC 1755] .",
"39. K Hasim v State of TN, AIR 2005 SC 128 [LNIND 2004 SC 1142] : 2005 Cr LJ 143 .",
"40. Raju v State of Chhatisgarh, 2014 Cr LJ 4425 : 2014 (9) SCJ 453 [LNINDORD 2014 SC 19031]",
.,
"41. Sushil Suri v CBI, AIR 2011 SC 1713 [LNIND 2011 SC 494] : (2011) 5 SCC 708 [LNIND 2011",
SC 494] : (2011) 2 SCC(Cr) 764 : (2011) 8 SCR 1 [LNIND 2011 SC 494] .,
"42. Chaman Lal v State of Punjab, AIR 2009 SC 2972 [LNIND 2009 SC 721] : (2009) 11 SCC 721",
[LNIND 2009 SC 721] : (2010) 1 SCC(Cr) 159.,
"43. SC Bahri v State of Bihar, AIR 1994 SC 2020 : 1994 Cr LJ 3271 .",
"44. Kehar Singh v State (Delhi Administration), AIR 1988 SC 1883 [LNIND 1988 SC 887] : 1989 Cr",
LJ 1 : (1988) 3 SCC 609 [LNIND 1988 SC 887] .,
"45. EG Barsay, AIR 1961 SC 1762 [LNIND 1961 SC 196] : 1962 (2) SCR 195 [LNIND 1961 SC 196]",
.,
"46. Lennart v State, AIR 1970 SC 549 [LNIND 1969 SC 396] : 1970 Cr LJ 707 .",
"47. RK Dalmia, AIR 1962 SC 1821 [LNIND 1962 SC 146] : (1962) 2 Cr LJ 805 ; Yashpal v State,",
AIR 1977 SC 2433 [LNIND 1977 SC 304] SC : 1978 Cr LJ 189 .,
"48. State of HP v Krishanlal Pradhan, AIR 1987 SC 773 [LNIND 1987 SC 131] : 1987 Cr LJ 709 :",
(1987) 2 SCC 17 [LNIND 1987 SC 131] .,
"49. KS Narayanan, 1982 Cr LJ 1611 (Mad); Krishnalal Naskar, 1982 Cr LJ 1305 (Cal). Mahabir",
"Prasad Akela v State of Bihar, 1987 Cr LJ 1545 Pat, no meeting of minds.",
50. (1988) 3 SCC 609 [LNIND 1988 SC 887] : AIR 1988 SC 1883 [LNIND 1988 SC 887] : 1989 CR,
"LJ 1 . AS AGAINST THIS SEE, Param Hans Yadav v State of Bihar, AIR 1987 SC 955 [LNIND 1987",
"SC 253] : 1987 Cr LJ 789 : (1987) 2 SCC 197 [LNIND 1987 SC 253] , murder of Collector by a",
"person whose connection with the jailed co-accused not proved, though the latter had a grudge",
against the collector for demolishing his temple and detaining him. Reversing the High Court,
"decision, 1986 Pat LJR 688 .",
"51. Mohd Arif v State of NCT of Delhi, JT 2011 (9) SC 563 [LNIND 2011 SC 753] : (2011) 13 SCC",
621 [LNIND 2011 SC 753] : 2011 (8) Scale 328 [LNIND 2011 SC 753] : (2011) 10 SCR 56 [LNIND,
"2011 SC 753] ; NV Subba Rao v State, (2013) 2 SCC 162 [LNIND 2012 SC 1350] : 2013 Cr LJ 953 .",
"52. MS Reddy v State Inspector of Police ACB Nellore, 1993 Cr LJ 558 (AP). Ammuni v State of",
"Kerala, AIR 1998 SC 280 : 1998 Cr LJ 481 , the accused administered poison and caused death",
"of the woman and her two children, there was evidence to show that all the four entered into a",
conspiracy to murder the woman. They were seen hanging around her house. One of the glass,
tumblers recovered from her place carried the finger prints of one of them. One of them also,
"confessed. Conspiracy proved conviction under sections 300/34, confirmed. Kuldeep Singh v",
"State of Rajasthan, AIR 2000 SC 3649 [LNIND 2000 SC 724] , accused persons entered into",
"conspiracy to cause death, circumstantial evidence coupled with recoveries. Guilt established.",
Conviction for murder and conspiracy.,
"53. Yogesh v State of Maharashtra, AIR 2008 SC 2991 [LNIND 2008 SC 979] : 2008 Cr LJ 3872 :",
(2008) 10 SCC 394 [LNIND 2008 SC 979] .,
"54. Nellai Ganesan v State, 1991 Cr LJ 2157 . See also Khalid v. State, 1990 Cr LJ (NOC) Raj,",
where the court inferred the fact of agreement from transmission of thoughts sharing the,
"unlawful design, the court observing that neither proof of actual words of communication nor",
actual physical meeting of persons involved is necessary.,
"55. KTMS Mohd v UOI, AIR 1992 SC 1831 [LNIND 1992 SC 362] : 1992 Cr LJ 2781 .",
"56. Wai Yu-Tsang v The Queen, (1991) 3 WLR 1006 PC, applying Welham v DPP, (1961) AC 103",
"HL(E) and Reg v Allsop, (1976) 64 Cr App R; CA. Shambhu Singh v State of UP, AIR 1994 SC 1559",
": 1994 Cr LJ 1584 , the Supreme Court did not interfere in the concurrent finding of the lower",
courts as to the involvement of the accused in the conspiracy.,
"57. Mir Naqvi Askari v CBI, AIR 2010 SC 528 [LNIND 2009 SC 1651] : (2009) 15 SCC 643 [LNIND",
2009 SC 1651] . The court also explained the nature of the crime.,
"58. R Venkatakrishnan v CBI, (2009) 11 SCC 737 [LNIND 2009 SC 1653] , under the National",
"Housing Bank Act, 1987. Sudhir Shantilal Mehta v CBI, (2009) 8 SCC 1 [LNIND 2009 SC 1652] :",
(2009) 3 SCC (Cr) 646; criminal conspiracy by bank officials in relation to Harshad Mehta,
"Securities Scam, illegally extending discounting/ rediscounting facility for bills of exchange by",
"bank officials, conspiracy in relation to persons liable to be convicted, role/conduct necessary to",
fasten liability.,
"59. Nand Kumar Singh v State of Bihar, AIR 1992 SC 1939 : 992 Cr LJ 3587 : (1992) Supp (2)",
SCC 111 .,
"60. Narain Lal Nirala v State of Rajasthan, AIR 1993 SC 118 : 1993 Cr LJ 3911 .",
"61. State v Siddarth Vashisth (alias Manu Sharma), 2001 Cr LJ 2404 (Del).",
"62. R v Ashton, (1992) Cr LR 667 (CA).",
"63. Dinanath, 1939 Nag 644.",
"64. Vinayak v State of Maharashtra, AIR 1984 SC 1793 [LNIND 1984 SC 255] : (1984) 4 SCC 441",
[LNIND 1984 SC 255] : 1984 SCC (Cr) 605.,
"65. Pramatha Nath v Saroj Ranjan, AIR 1962 SC 876 [LNIND 1961 SC 400] : (1962) 1 Cr LJ 770 .",
"Further explained by the Supreme Court in Kehar Singh v State (Delhi Admn), AIR 1988 SC 1883",
[LNIND 1988 SC 887] : 1989 Cr Lj 1 : (1988) 3 SCC 609 [LNIND 1988 SC 887] .,
"66. State of TN through Superintendent of Police CBI/SIT v Nalini, AIR 1999 SC 2640 [LNIND",
1999 SC 1584] : 1999 Cr LJ 3124 : JT 1999 (4) SC 106 [LNIND 1999 SC 526] : (1999) 5 SCC 253,
"[LNIND 1999 SC 526] ; Sardar Sardul Singh Caveeshar v State of Maharashtra, ( AIR 1965 SC 682",
[LNIND 1963 SC 67] : 1965 (1) Cr LJ 608 ) : (1964) 2 SCR 378 [LNIND 1963 SC 67] See also.,
"67. Bhagwandas, AIR 1974 SC 898 : 1974 Cr LJ 751 ; Ashok Datta Naik, 1979 Cr LJ NOC 95",
"(Goa); V Shivanarayan, AIR 1980 SC 439 : 1980 Cr LJ 388 ; Mohd Usman Mohd Hussain, AIR 1981",
SC 1062 [LNIND 1981 SC 127] : 1981 Cr LJ 588 : (1988) 3 SCC 609 [LNIND 1988 SC 887] ; State,
"of UP v Girijashankar Misra, 1985 Cr LJ NOC 79 (Delhi); Subhas, 1985 Cr LJ 1807 (Cal).",
"68. Pratapbhai Hamirbhai Solanki v State of Gujarat, (2013) 1 SCC 613 [LNIND 2012 SC 1033] :",
2012 Mad LJ (Cr) 532 : 2012 (10) Scale 237 [LNIND 2012 SC 1033] ; An offence of criminal,
"conspiracy can also be proved by circumstantial evidence. State of MP v Sheetla Sahai, 2009 Cr",
"LJ 4436 : (2009) 8 SCC 617 : (2009) 3 SCC(Cr) 901]. In S Arul Raja v State of TN, 2010 (8) SCC",
233 [LNIND 2010 SC 689] in which it is held that mere circumstantial evidence to prove the,
involvement of the appellant is not sufficient to meet the requirements of criminal conspiracy,
"under Section 120A of the (IPC, 1860) A meeting of minds to form a criminal conspiracy has to",
be proved by placing substantive evidence.,
"69. Re MD Mendekar, 1972 Cr LJ 978 (Mysore); See also Bhagwandas, supra.",
"70. DB Naik, 1982 Cr LJ 856 (Bom); Hari Ram, 1982 Cr LJ 294 (HP).",
"71. Jethsur Surangbhai, AIR 1984 SC 151 [LNIND 1983 SC 329] : 1984 Cr LJ 162 (SC) : (1984)",
SCC (Cr) 474.,
72. Ajoyadha PrashadI 1985 Cr LJ 1401 (Ori).,
"73. State v VC Shukla, 1980 Cr LJ 965 : 1980 Cr LR (SC) 301 . Also VC Shukla v State (Delhi",
"Admn), AIR 1980 SC 1382 [LNIND 1980 SC 179] : 1980 SCC (Cr) 561 and 849 (1980) 2 SCC 665",
"[LNIND 1980 SC 179] . State of HP v Gian Chand, 2000 Cr LJ 949 (HP); Sardari Lal v State of",
"Punjab, 2003 Cr LJ 383 (P&H), State of MP v Sheetla Sahai, (2009) 8 SCC 617 : (2009) 3 SCC (Cr)",
"901; Baldev Singh v State of Punjab, (2009) 6 SCC 564 [LNIND 2009 SC 1151] : (2009) 3 SCC (Cr)",
"66; Y Venkaiah v State of AP, AIR 2009 SC 2311 [LNIND 2009 SC 513] : (2009) Cr LJ 2834 :",
"(2009) 12 SCC 126 [LNIND 2009 SC 513] . State of MP v Paltan Mallah, 2005 AIR 2005 SC 733",
[LNIND 2005 SC 64] : Cr LJ 918 SC : (2005) 3 SCC 169 [LNIND 2005 SC 64] .,
"74. State (NCT) of Delhi v Navjot Sandhu @ Afsan Guru, (2005) 11 SCC 600 [LNIND 2005 SC 580]",
.,
"75. Charandas Swami v State of Gujarat, 2017 (4) Scale 403 .",
"76. Rajiv Kumar v State of UP, AIR 2017 SC 3772 [LNIND 2017 SC 367] .",
"77. Charandas Swami v State of Gujarat, 2017 (4) Scale 403 .",
"78. State of Maharashtra v Som Nath Thapa, AIR 1996 SC 1744 [LNIND 1996 SC 776] : 1996 AIR",
SCW 1977 : 1996 Cr LJ 2448 : (1996) 4 SCC 649 .,
"79. State through Central Bureau of Investigation v Dr Anup Kumar Srivastava, AIR 2017 SC 3698",
[LNIND 2017 SC 371] .,
"80. Lal Singh v State of Gujarat, AIR 2001 SC 746 [LNIND 2001 SC 98] : 2001 Cr LJ 978 . The",
"case under the Terrorists and Disruptive Activities (Prevention) Act, 1987. Saju v State of Kerala,",
"AIR 2001 SC 175 [LNIND 2000 SC 1552] , no inference of conspiracy to murder from",
"circumstances proved in the case, Suman Sood v State of Rajasthan, AIR 2007 SC 2774 [LNIND",
"2007 SC 647] : (2007) Cr LJ 4080 : (2007) 5 SCC 634 [LNIND 2007 SC 647] , inference regarding",
conspiracy can be drawn from surrounding circumstances because normally no direct evidence,
is available.,
"81. Ibid. The court followed the ruling in Babu Singh v State of Punjab, AIR 1996 SC 3250 [LNIND",
"1996 SC 860] : 1996 Cr LJ 2503 ; Vijayan v State of Kerala, AIR 1999 SC 1086 [LNIND 1999 SC",
"159] : 1999 Cr LJ 1638 , it is difficult to establish conspiracy by direct evidence. But there should",
be material evidence showing the connection between the alleged conspiracy and the act done,
"pursuant to that conspiracy. Firozuddin Basheerudin v State of Kerala, AIR 2001 SC 3488 [LNIND",
"2001 SC 1755] : 2001 Cr LJ 4215 , conspiracy to eliminate a police informer on whose",
"information contraband gold was seized from the accused persons, chain of circumstances to",
"the point of murder, complete, conviction. State of Kerala v P Suganthan, AIR 2000 SC 3323",
"[LNIND 2000 SC 1298] : 2000 Cr LJ 4584 , conspiracy to murder the earlier paramour of the",
"concubine, not proved. Hira Lal Hari Lal v CBI, AIR 2003 SC 2545 [LNIND 2003 SC 499] : 2003 Cr",
"LJ 3041 : (2003) 5 SCC 257 [LNIND 2003 SC 499] , difficult to prove conspiracy by direct",
evidence. An agreement between the parties to do something unlawful has to be proved. The,
allegation here was that of evasion of customs duty.,
"82. Chandra Prakash v State of Rajasthan, 2014 Cr LJ 2884 : (2014) 8 SCC 340 [LNIND 2014 SC",
346] .,
"83. Indra Dalal v State of Haryana, 2015 Cr LJ 3174 : 2015 (6) SCJ 501 [LNIND 2015 SC 358] .",
"84. Balkar Singh v State of Haryana, 2015 Cr LJ 901 : (2015) 2 SCC 746 [LNIND 2014 SC 950] .",
"85. Satyavir Singh v State of UP, 2016 Cr LJ 4863 (All), 2015 (91) ALLCC 892.",
"86. State v Nitin Gunwant Shah, 2015 Cr LJ 4759 : 2016 (1) SCJ 30 [LNIND 2015 SC 529] .",
"87. State of TN v Nalini, AIR 1999 SC 2640 [LNIND 1999 SC 1584] : 1999 Cr LJ 3124 .",
"88. Kiriti Pal v State of WB, 2015 Cr LJ 3152 : 2015 (3) Crimes 11 (SC).",
"89. R Venkatkrishanan v CBI, 2010 1 SCC (Cr) 164 : (2009) 11 SCC 737 [LNIND 2009 SC 1653] .",
"90. Mahesh Joshi v State, (CBI), 2002 Cr LJ 97 (Kant).",
THE INDIAN PENAL CODE,
1.,
CHAPTER V-A CRIMINAL CONSPIRACY,
[s 120B] Punishment of criminal conspiracy.,
(1) Whoever is a party to a criminal conspiracy to commit an offence punishable,
"with death, 91.[imprisonment for life] or rigorous imprisonment for a term of",
"two years or upwards, shall, where no express provision is made in this Code",
"for the punishment of such a conspiracy, be punished in the same manner as if",
he had abetted such offence.,
(2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to,
commit an offence punishable as aforesaid shall be punished with,
"imprisonment of either description for a term not exceeding six months, or",
with fine or with both.],
COMMENT—,
"Earlier to the introduction of sections 120A and B, conspiracy per se was not an",
"offence under IPC, 1860, except in respect of the offence mentioned in section 121A.",
"However, abetment by conspiracy was and still remains to be an ingredient of",
"abetment under the second clause of section 107 of IPC, 1860. The punishment",
"therefore, is provided under various sections, viz., sections 108–117. Whereas under",
"section 120A, the essence of the offence of criminal conspiracy is a bare agreement to",
"commit the offence, the abetment under section 107 requires the commission of some",
act or illegal omission pursuant to the conspiracy.92. Criminal conspiracy is an,
independent offence. It is punishable separately.93. The punishment for conspiracy is,
the same as if the conspirator had abetted the offence.94. The punishment for a,
criminal conspiracy is more severe if the agreement is one to commit a serious,
offence; it is less severe if the agreement is one to commit an act which although,
"illegal is not an offence punishable with death, imprisonment for life or rigorous",
imprisonment for more than two years.,
Conspiracy to commit an offence is itself an offence and a person can be separately,
charged with respect to such a conspiracy. There may be an element of abetment in a,
conspiracy; but conspiracy is something more than abetment. The offences created by,
section 109 and section 120A are quite distinct and where offences are committed by,
several persons in pursuance of a conspiracy it is usual to charge them with those,
offences as well as conspiracy to commit those offences.95.,
This section applies to those who are the members of the conspiracy during its,
continuance. Conspiracy has to be treated as a continuing offence and whoever is a,
party to the conspiracy during the period for which he is charged is liable under this,
section.96. A conspiracy is held to be continued and renewed as to encompass all its,
members wherever and whenever any member of it acts in furtherance of the common,
design.97. The most important ingredient of a criminal conspiracy is an agreement for,
"an illegal act, conspiracy continues to subsist till it is executed or rescinded or",
frustrated by choice or necessity.98. The conspirators' connection with the conspiracy,
would get snapped after he is nabbed by the police and kept in custody. He would then,
cease to be the agent of others. In this case (Rajiv assassination) the prosecution could,
not establish that the accused persons who were under detention continued their,
conspiratorial contact with those who remained outside. A statement which,
constitutes prima facie evidence of a conspiracy may amount to an act for which all the,
members can be held liable.99.,
"Where the accused conspired with others in awarding a contract when he was in job, he",
could be held liable for subsequent acts of other conspirators even after his retirement,
as he contributed his part for furtherance of the conspiracy.100.,
"For the purpose of establishing or proving the charge of conspiracy, it is not necessary",
that there should be knowledge of who are other conspirators and of the detailed,
stages of the conspiracy. The necessary requisite is knowledge of the main object and,
purpose of the conspiracy.101. A fraud was alleged to have been committed by,
Government officers in processing and verifying fake bills. It was held that all the,
officers who dealt with the relevant files at one point of time or the other could not be,
considered to have taken part in the conspiracy or that they would be guilty of aiding,
and abetting the offence. Individual acts of criminal misconduct would have to be,
considered for fastening liability.102.,
An accused can be convicted for substantive offence even where he has been,
acquitted of the charge of conspiracy.103.,
"[s 120B.1] Sanction for prosecution (section 120B IPC, 1860 and section 196 (Cr PC,",
1973)).—,
"This section has to be read along with section 196(1-A) (2) (Cr PC, 1973), which",
requires previous sanction of the State Government or the District Magistrate to launch,
prosecution in respect of a criminal conspiracy to commit an offence punishable with,
"less than two years imprisonment. Thus, where the object of the conspiracy was",
"cheating by false personation under section 419, IPC, 1860, which is an offence",
"punishable with a three-year imprisonment, the mere fact that there were other non-",
cognizable offences for which too the accused had been charged would not vitiate the,
"trial in absence of sanction under section 196(1A)(2), (Cr PC, 1973), as that section is",
meant to be applicable to a case where the object of the conspiracy is to commit an,
offence punishable with less than two years' imprisonment.104. Where the act in,
"question was not done by the army officer in the discharge of his official duties, it was",
held that a sanction for his prosecution was not necessary.105.,
[s 120B.2] Can a company be prosecuted for Criminal conspiracy.—,
A corporation is virtually in the same position as any individual and may be convicted,
of common law as well as statutory offences including those requiring mens rea. The,
criminal liability of a corporation would arise when an offence is committed in relation,
to the business of the corporation by a person or body of persons in control of its,
"affairs. In such circumstances, it would be necessary to ascertain that the degree and",
control of the person or body of persons is so intense that a corporation may be said to,
think and act through that person or the body of persons.106.,
[s 120B.3] Signing differently in vakalatnama.—,
The fact was that the accused put their signatures in vakalatnama differently from their,
original ones. It has been alleged by the complainant that the accused petitioners have,
deliberately and wilfully put their signatures on the vakalatnama in collusion with each,
other like irresponsible persons in order to gain wrongfully and with a view to cheat and,
mislead the complainant. It was held that the alleged action of the petitioners in,
signing their own name on the vakalatnama and filing the same in the Court through,
their counsel is neither an offence nor prohibited by any law. When the alleged act itself,
"was not illegal, it cannot be said that there was any 'criminal conspiracy' and in",
"absence of the basis for a charge for criminal conspiracy, the petitioners cannot be",
"prosecuted or punished for the offence under section 120-B of the IPC, 1860.107.",
[s 120B.4] Seeking opinion.—,
"Merely taking someone's opinion, who is an outsider to litigation, before filing the reply",
in the Court would not undermine the administration of justice in any way and it is not,
indicative of criminal conspiracy.108.,
[s 120B.5] Hooch Tragedy case.—,
"In a case, the allegation was that all the accused persons hatched a criminal",
conspiracy and they created a well-oiled machinery for importing methyl alcohol to,
make spurious liquor. Accused diluted the spirit by adding water and sold it through,
their outlets. Many persons died due to the consumption of spurious liquor. Some,
persons lost their eyesight and number of others sustained grievous injuries. Supreme,
Court said that the whole business itself was a conspiracy. It may not be the,
conspiracy to mix the noxious substance but the fact of the matter is that in order to,
"succeed in the business, which itself was a conspiracy, they mixed or allowed to be",
mixed methanol and used it so freely that ultimately resulted in the tragedy. Conviction,
is upheld.109.,
[s 120B.6] Corruption cases.—,
The prosecution asserted that the appellants A1 to A4 had entered into a conspiracy,
"and in furtherance thereof, A1 who was a public servant, had come to possess assets",
"to the tune of Rs. 66.65 crores, disproportionate to her known sources of income,",
"during the period from 1991 to 1996, when she held the office of the Chief Minister of",
the State. The Supreme Court in respect to the charge of criminal conspiracy observed,
"that the free flow of money from one account to the other of the respondent's,",
firms/companies also proved beyond reasonable doubt that all the accused persons,
had actively participated in the criminal conspiracy to launder the ill-gotten wealth of,
A1 for purchasing properties in their names.110.,
[s 120B.7] Previous sanction.—,
No Court shall take cognizance of the offence of any criminal conspiracy punishable,
"under section 120B of the IPC, 1860, (45 of 1860), other than a criminal conspiracy to",
"commit an offence punishable with death, imprisonment for life or rigorous",
"imprisonment for a term of two years or upwards, unless the State Government or the",
District Magistrate has consented in writing to the initiation of the proceeding: Provided,
"that where the criminal conspiracy is one to which the provisions of section 195 apply,",
no such consent shall be necessary.111.,
2. Sentence.—Where the accused is charged both under section 109 as well as section,
"120B, IPC, 1860, and the offence abetted is shown to have been committed as a result",
"of the abetment, the abettor should be punished with the imprisonment provided for",
"the principal offence under section 109, IPC, 1860, and no separate sentence need be",
"recorded under section 120B IPC, 1860.112. Where the charge of conspiracy fails, the",
individual accused could still be convicted for the offences committed by them and,
sentenced accordingly.113. Where no jail term was awarded to the principal accused in,
"a conspiracy and he was let off with fine alone, it was held that substantive sentence of",
"imprisonment awarded to the other accused was wrongful and, therefore, they also",
were ordered to pay fine only.114. Where six of the seven persons accused of criminal,
"conspiracy were acquitted, remaining one accused could not be convicted merely for",
being the head of the section of the branch where fraud was alleged to have been,
committed.115. Where the appellant-accused was one of the active members of the,
criminal conspiracy along with other accused and hatched the plan to kill/eliminate the,
deceased and in furtherance thereof other accused persons successfully,
killed/eliminated the deceased and it was not the case of the appellant-accused and,
nor was urged also that his case fell under Section 120(2) so as to be awarded less,
"sentence as prescribed therein, the conviction and award of life sentence as prescribed",
"under Section 302 read with Section 120B, IPC, 1860 was held proper.116. The accused",
pleaded guilty to conspiring to cause a public nuisance. He conspired with others to,
interfere with a premier division football match by means of extinguishing the,
floodlights while the match was in progress. The object of doing so was to affect bets,
"placed on the match abroad, which depended on the score at the time when the lights",
were switched off and the match was abandoned. The plan was not put into effect and,
the accused and others were arrested before the match was due to take place. The,
accused would have received substantial reward for his role. He was sentenced to four,
years' imprisonment. His appeal was dismissed. The Court said that the practice of,
interfering with such an important sporting fixture was something which should be,
actively discouraged by severe sentences. The sentence could not be described as,
manifestly excessive.117.,
Law relating to Conspiracy as summarised by the Supreme Court in State of TN,
"through Superintendent of Police, CBI/SIT v Nalini, (AIR 1999 SC 2640 [LNIND 1999 SC",
1584] : (1999) 5 SCC 253 [LNIND 1999 SC 526] : JT 1999 (4) SC 106 [LNIND 1999 SC,
526] : 1999 Cr LJ 3124 ).,
"1. Under Section 120A, IPC, 1860, offence of criminal conspiracy is committed",
when two or more persons agree to do or cause to be done an illegal act or legal,
act by illegal means. When it is legal act by illegal means overt act is necessary.,
Offence of criminal conspiracy is exception to the general law where intent alone,
does not constitute crime. It is intention to commit crime and joining hands with,
"persons having the same intention. Not only the intention, but there has to be",
"agreement to carry out the object of the intention, which is an offence. The",
question for consideration in a case is did all the accused had the intention and,
did they agree that the crime be committed. It would not be enough for the,
"offence of conspiracy when some of the accused merely entertained a wish,",
"howsoever, horrendous it may be, that offence be committed.",
2. Acts subsequent to the achieving of object of conspiracy may tend to prove that,
a particular accused was party to the conspiracy. Once the object of conspiracy,
"has been achieved, any subsequent act, which may be unlawful, would not make",
the accused a part of the conspiracy like giving shelter to an absconder.,
3. Conspiracy is hatched in private or in secrecy. It is rarely possible to establish a,
"conspiracy by direct evidence. Usually, both the existence of the conspiracy and",
its objects have to be inferred from the circumstances and the conduct of the,
accused.,
"4. Conspirators may, for example, be enrolled in chain A enrolling B, B enrolling C,",
and so on and all will be members of the single conspiracy if they so intend and,
"agree, even though each member knows only the person who enrolled him and",
"the person whom he enrols. There may be a kind of umbrella-spoke enrolment,",
where a single person at the centre doing the enrolling and all the other members,
"being unknown to each other, though they know that there are to be other",
members. These are theories and in practice it may be difficult to tell whether the,
"conspiracy in a particular case falls into which category. It may, however, even",
overlap. But then there has to be present mutual interest. Persons may be,
members of single conspiracy even though each is ignorant of the identity of,
many others who may have diverse role to play. It is not a part of the crime of,
conspiracy that all the conspirators need to agree to play the same or an active,
role.,
"5. When two or more persons agree to commit a crime of conspiracy, then",
"regardless of making or considering any plans for its commission, and despite",
the fact that no step is taken by any such person to carry out their common,
"purpose, a crime is committed by each and every one who joins in the",
"agreement. There has thus, to be two conspirators and there may be more than",
that. To prove the charge of conspiracy it is not necessary that intended crime,
was committed or not. If committed it may further help prosecution to prove the,
charge of conspiracy.,
6. It is not necessary that all conspirators should agree to the common purpose at,
the same time. They may join with other conspirators at any time before the,
"consummation of the intended objective, and all are equally responsible. What",
part each conspirator is to play may not be known to everyone or the fact as to,
when a conspirator joined the conspiracy and when he left.,
7. A charge of conspiracy may prejudice the accused because it is forced them into,
a joint trial and the Court may consider the entire mass of evidence against every,
accused. Prosecution has to produce evidence not only to show that each of the,
accused has knowledge of object of conspiracy but also of the agreement. In the,
charge of conspiracy Court has to guard itself against the danger of unfairness to,
the accused. Introduction of evidence against some may result in the conviction,
"of all, which is to be avoided. By means of evidence in conspiracy, which is",
otherwise inadmissible in the trial of any other substantive offence prosecution,
tries to implicate the accused not only in the conspiracy itself but also in the,
substantive crime of the alleged conspirators. There is always difficult in tracing,
the precise contribution of each member of the conspiracy but then there has to,
be cogent and convincing evidence against each one of the accused charged,
"with the offence of conspiracy. As observed to Judge Learned Hand that ""this",
distinction is important today when many prosecutors seek to sweep within the,
dragnet of conspiracy all those who have been associated in any degree,
"whatever with the main offenders"".",
"8. As stated above it is the unlawful agreement and not its accomplishment, which",
is the gist or essence of the crime of conspiracy. Offence of criminal conspiracy,
is complete even though there is no agreement as to the means by which the,
"purpose is to be accomplished. It is the unlawful agreement, which is the",
gravamen of the crime of conspiracy. The unlawful agreement which amounts to,
"a conspiracy need not be formal or express, but may be inherent in and inferred",
"from the circumstances, especially declarations, acts and conduct of the",
conspirators. The agreement need not be entered into by all the parties to it at,
"the same time, but may be reached by successive actions evidencing their joining",
of the conspiracy.,
"9. It has been said that a criminal conspiracy is a partnership in crime, and that",
there is in each conspiracy a joint or mutual agency for the prosecution of a,
"common plan. Thus, if two or more persons enter into a conspiracy, any act done",
"by any of them pursuant to the agreement is, in contemplation of law, the act of",
each of them and they are jointly responsible therefor. This means that,
"everything said, written or done by any of the conspirators in execution or",
"furtherance of the common purpose is deemed to have been said, done, or",
written by each of them. And this joint responsibility extends not only to what is,
done by any of the conspirators pursuant to the original agreement but also to,
collateral acts incident to and growing out of the original purpose. A conspirator,
"is not responsible, however, for acts done by a co-conspirator after termination of",
the conspiracy. The joinder of a conspiracy by a new member does not create a,
"new conspiracy nor does it change the status of the other conspirators, and the",
mere fact that conspirators individually or in groups perform different tasks to a,
common end does not split up a conspiracy into several different conspiracies.,
"10. A man may join a conspiracy by word or by deed. However, criminal",
responsibility for a conspiracy requires more than a merely passive attitude,
towards an existing conspiracy. One who commits an overt act with knowledge,
of the conspiracy is guilty. And one who tacitly consents to the object of a,
"conspiracy and goes along with other conspirators, actually standing by while",
"the other but the conspiracy into effect, is guilty though he intends to take no",
active part in the crime.,
"1. Chapter VA (containing sections 120A and 120B) inserted by Act 8 of 1913, section 3.",
"91. Subs. by Act 26 of 1955, section 117 and Sch., for transportation for life (w.e.f. 1-1-1956).",
"92. State (NCT) of Delhi v Navjot Sandhu @ Afsan Guru, 2005 Cr LJ 3950 : (2005) 11 SCC 600",
[LNIND 2005 SC 580] .,
"93. State of MP v Sheetla Sahai, 2009 Cr LJ 4436 : (2009) 8 SCC 617 : (2009) 3 SCC(Cr) 901.",
"94. Alim Jan Bibi, (1937) 1 Cal 484 . It is not necessary that each and every conspirator must",
"have taken part in the commission of the act. State of HP v Krishanlal Pradhan, AIR 1987 SC 773",
[LNIND 1987 SC 131] : 1987 Cr LJ 709 : (1987) 2 SCC 17 [LNIND 1987 SC 131] . Govt of NCT of,
"Delhi v Jaspal Singh, (2003) 10 SCC 586 [LNIND 2003 SC 649] , essential requirements of charge",
"under the section. Ram Narayan Popli v CBI, AIR 2003 SC 2748 [LNIND 2003 SC 26] : (2003) 3",
"SCC 641 [LNIND 2003 SC 26] , statement of ingredients. Nazir Khan v State of Delhi, AIR 2003 SC",
"4427 [LNIND 2003 SC 696] : (2003) 8 SCC 461 [LNIND 2003 SC 696] , statement of ingredients",
and matters of proof.,
"95. Subbaiah, AIR 1961 SC 1241 [LNIND 1961 SC 95] . See also Mohd Hussain v KS Dalipsinghji,",
AIR 1970 SC 45 [LNIND 1969 SC 147] : (1970) 1 SCR 130 [LNIND 1969 SC 147] . See also,
"Jagdish Prasad v State of Bihar, 1990 Cr LJ 366 Pat, conspiracy with railway employees to",
procure allotment of wagons under cover of fake letters. State of Rajasthan v Govind Ram,
"Bagdiya, 2003 Cr LJ 1169 (Raj), the prosecution has to prove the elements of conspiracy. No",
proof was forthcoming in this case in the matter of allotment of house of any conspiracy among,
officials to manipulate the system.,
"96. Abdul Kadar v State, (1963) 65 Bom LR 864 . For an example of a failed prosecution under",
"this section see State of UP v Pheru Singh, AIR 1989 SC 1205 : 1989 Cr LJ 1135 . In Darshan",
"Singh v State of Punjab, AIR 1983 SC 554 [LNIND 1983 SC 95] : 1983 Cr LJ 985 : (1983) 2 SCC",
"411 [LNIND 1983 SC 95] , the Supreme Court considered it to be unbelievable that the accused",
hatched their plot while taking drinks in the presence of a stranger. For proof of conspiracy it,
often becomes necessary to convert one of the conspirators into an approver witness and this,
"may require corroboration. See Balwant Kaur v UT Chandigarh, AIR 1988 SC 139 [LNIND 1987 SC",
738] : 1988 Cr LJ 398 . The absence of one of the conspirators at one of their meetings does not,
by itself rule out his complicity. Conspiracies are hatched under cover of secrecy. They are,
"generally proved by circumstantial evidence, EK Chandrasenan v State of Kerala, AIR 1995 SC",
"1066 [LNIND 1995 SC 88] : 1995 Cr LJ 1445 ; Aniceto Lobo v State (Goa, Daman and Diu), AIR",
"1994 SC 1613 : 1994 Cr LJ 1582 : 1993 Supp (3) SCC 311 , conspiracy of three persons, one of",
"whom, being bank employee, took out blank drafts, the other forged signatures and third opened",
"accounts in fictitious names to encash the drafts, all of them were held to be equally guilty of",
the offence.,
"97. Esher Singh v State of AP, AIR 2004 SC 3030 [LNIND 2004 SC 329] : (2004) 11 SCC 585",
[LNIND 2004 SC 329] .,
"98. Damodar v State of Rajasthan, AIR 2003 SC 4414 [LNIND 2003 SC 803] : 2003 Cr LJ 5014 :",
"(2004) 12 SCC 336 [LNIND 2003 SC 803] . R Sai Bharathi v J Jayalalitha, AIR 2004 SC 692 [LNIND",
"2003 SC 1023] : 2004 Cr LJ 286 : (2004) 2 SCC 9 [LNIND 2003 SC 1023] , alleged conspiracy",
"was to dispose of by auction the property of a Govt Co at a low price, but the bids made by the",
alleged conspirators reflected a fair price. Ingredients of the section not made out. Hardeep,
"Singh Sohal v State of Punjab, AIR 2004 SC 4716 [LNIND 2004 SC 902] : (2004) 11 SCC 612",
[LNIND 2004 SC 1006] conspiracy for murder not proved. Another charge of conspiracy for,
"murder was rejected in Hem Raj v State of Punjab, AIR 2003 SC 4259 [LNIND 2003 SC 759] :",
"2003 Cr LJ 4987 : (2003) 12 SCC 241 [LNIND 2003 SC 759] . State of HP v Satya Dev Sharma,",
"(2002) 10 SCC 601 , criminal conspiracy between timber merchants and private landowners and",
Government officials for falling and misappropriating trees standing on Government land.,
"99. State of TN v Nalini, AIR 1999 SC 2640 [LNIND 1999 SC 1584] : 1999 Cr LJ 3124 . Under",
"TADA (repealed) such confession had the status of evidence. Ram Singh v State of HP, AIR 1997",
"SC 3483 [LNIND 1997 SC 1060] : 1997 AIR SCW 1331 : 1997 Cr LJ 4091 , in a murder by some",
"persons, the accused persons assisted them in causing disappearance of the dead body",
"secretly in furtherance of their conspiracy, their conviction under sections 201-120B was held to",
"be proper. Subhash Harnarayanji Laddha v State of Maharashtra, (2006) 12 SCC 545 [LNIND 2006",
"SC 1088] , conspiracy not proved. Mallanna v State of Karnataka, (2007) 8 SCC 523 [LNIND 2007",
"SC 1526] , conspiracy not proved.",
"100. R Balkrishna Pillai v State of Kerala, 1996 Cr LJ 757 (Ker); Devender Pal Singh v State (NCT)",
"of Delhi, 2002 Cr LJ 2034 (SC), acquittal of a co-accused on the ground of non-corroboration of",
the confessional statement did not have the effect of demolishing the prosecution regarding,
"conspiracy Saju v State of Kerala, 2001 Cr LJ 102 (SC), no evidence to show that the accused",
was responsible for pregnancy or insisted upon its termination. The accused and co-accused,
were fellow workers and seemed to be hired killers. They were seen together at the place of the,
incident both before and after it. That was held to be not sufficient to prove charge of,
"conspiracy against them. State of HP v Jai Lal, AIR 1999 SC 3318 [LNIND 1999 SC 798] : 1999 Cr",
LJ 4294 State Government scheme of purchasing infected apples from growers and destroying,
them. Allegations that some of them over charged by inflating weight. But no evidence of,
"experts about overweight, etc., charge not proved. Premlata v State of Rajasthan, 1998 Cr LJ",
"1430 (Raj), a charge-sheet was not quashed where there was evidence to believe that the two",
accused persons had conspired to produce a document for fulfilling the eligibility criteria for an,
"appointment. Central Bureau of Investigation v VC Shukla, AIR 1998 SC 1406 [LNIND 1998 SC",
"272] : 1998 Cr LJ 1905 , the prosecution could not prove that one of the two accused was a",
"party to the conspiracy. Arun Gulab Gawli v State of Maharashtra, 1998 Cr LJ 4481 (Bom) mere",
inference cannot invite punishment.,
"101. Mohd Amin v CBI, (2008) 15 SCC 49 [LNIND 2008 SC 2255] : (2009) 3 SCC (Cr) 693.",
"102. Soma Chakravarty v State, AIR 2007 SC 2149 [LNIND 2007 SC 632] : (2007) 5 SCC 403",
[LNIND 2007 SC 632] .,
"103. T Shankar Prasad v State of AP, AIR 2004 SC 1242 [LNIND 2004 SC 41] : 2004 Cr LJ 884 :",
(2004) 3 SCC 753 [LNIND 2004 SC 41] .,
"104. Yashpal v State, AIR 1977 SC 2433 [LNIND 1977 SC 304] : 1978 Cr LJ 189 . See also Vinod",
"Kumar Jain v State through CBI, 1991 Cr LJ 669 (Del); State of Bihar v Simranjit Singh Mann, 1987",
Cr LJ 999 (Pat).,
"105. Nirmal Puri (Lt Gen Retd) v UOI, 2002 Cr LJ 158 (Del).",
"106. Iridium India Telecom Ltd v Motorola Incorporated, AIR 2011 SC 20 [LNIND 2010 SC 1012] :",
2010 AIR (SCW) 6738 : JT 2010 (11) SC 492 [LNIND 2010 SC 1012] : (2011) 1 SCC 74 [LNIND,
2010 SC 1012] : (2010) 3 SCC(Cr) 1201 : 2010 (11) Scale 417 ; relied on Standard Chartered Bank,
"v Directorate of Enforcement, AIR 2005 SC 2622 [LNIND 2005 SC 476] : (2005) 4 SCC 530 [LNIND",
2005 SC 476] : 2005 SCC (Cr) 961.,
"107. Padam Chand v The State of Bihar, 2016 Cr LJ 4998 (Pat) : 2016 (3) PLJR 258 .",
"108. Sanjiv Rajendra Bhatt v UOI, 2016 Cr LJ 185 : (2016) 1 SCC 1 [LNIND 2015 SC 596] .",
"109. Chandran v State, AIR 2011 SC 1594 [LNIND 2011 SC 358] : (2011) 5 SCC 161 [LNIND 2011",
SC 358] : (2011) 2 SCC(Cr) 551 : (2011) 8 SCR 273 [LNIND 2011 SC 358] ; Also see Ravinder,
"Singh @ Ravi Pavar v State of Gujarat, AIR 2013 SC 1915 2013 Cr Lj 1832.",
"110. State of Karnataka v Selvi J Jayalalitha, 2017 (2) Scale 375 [LNIND 2017 SC 72] : 2017 (1)",
RCR (Criminal) 802.,
"111. Section 196(2) of Code of Criminal Procedure, 1973.",
"112. State of TN v Savithri, 1976 Cr LJ 37 (Mad).",
"113. State of Orissa v Bishnu Charan Muduli, 1985 Cr LJ 1573 (Ori).",
"114. CR Mehta v State of Maharashtra, 1993 Cr LJ 2863 (Bom). The Court referred to",
"Rameshwar Dayal v State of UP, 1971 (3) SCC 924 : 1972 SCC (Cr) 172.",
"115. BN Narasimha Rao v Govt of AP, 1995 Cr LJ 4181 (SC), reversing AP High Court. See also",
"Sayed Mohd Owais v State of Maharashtra, 2003 Cr LJ 303 (Bom).",
"116. Bilal Hajar v State, AIR 2018 SC 4780 [LNIND 2018 SC 520] .",
"117. R v Chee Kew Ong, (2001) 1 Cr App R (S) 117 [CA (Crim Div)].",
THE INDIAN PENAL CODE,
CHAPTER VI OF OFFENCES AGAINST THE STATE,
The offences against the State fall into the following groups:—,
"I. Waging, or attempting or conspiring to wage, or collecting men and ammunition to",
"wage war against the Government of India (sections 121, 121A, 122, 123).",
"II. Assaulting President, or Governor of a State with intent to compel or restrain the",
exercise of any lawful power (section 124).,
III. Sedition (section 124A).,
IV. War against a power at peace with the Government of India (section 125) or,
committing depredations on the territories of such power (sections 125–126).,
"V. Permitting or aiding or negligently suffering the escape of, or rescuing or harbouring,",
"a State prisoner (sections 128, 129, 130).",
"[s 121] Waging, or attempting to wage war or abetting waging of war, against",
the Government of India.,
"Whoever, wages war1. against the 1[Government of India]2., or attempts, to wage such",
"war, or abets the waging of such war3., shall be punished with death, or",
2[imprisonment for life] 3[and shall also be liable to fine].,
4.[ILLUSTRATIONS],
5.[***] (a) A joins an insurrection against the 6.[Government of India]. A has,
committed the offence defined in this section.,
7.,
[***]COMMENT—,
"Earlier the word used in section 121 was ""Queen"". After the formation of the republic",
"under the Constitution it was substituted by the expression ""Government of India"" by",
"the Adaption of Laws Order of 1950. In a republic, sovereignty vests in the people of the",
country and the lawfully elected government is simply the representative and a,
"manifestation of the sovereign, that is, the people. Thus, the expression ""Government of",
"India"", as appearing in section 121, must be held to mean the State or interchangeably",
the people of the country as the repository of the sovereignty of India which is,
manifested and expressed through the elected Government.8.,
[s 121.1] Waging war against Government.—,
The concept of war embedded in section 121 is not to be understood in the,
international law sense of inter-country war involving military operations by and,
between two or more hostile countries. Section 121 is not meant to punish prisoners of,
war of a belligerent nation. Apart from the legislative history of the provision and the,
understanding of the expression by various High Courts during the pre-independence,
"days, the Illustration to section 121 itself makes it clear that ""war"" contemplated by",
section 121 is not conventional warfare between two nations. Organising or joining an,
insurrection against the Government of India is also a form of war.9.,
Neither the number of persons nor the manner in which they are assembled or armed is,
material to constitute an offence under this section. The true criterion is the purpose or,
intention with which the gathering is assembled. The object of the gathering must be to,
attain by force and violence an object of a general public nature thereby striking directly,
against the Government's authority.10.,
"In Md Jamiluddin Nasir v State of WB,11. while enumerating what principles are to be",
"kept in mind in cases, involving application of sections 121, 122, 121A read with",
"section 120B IPC, 1860 as well as section 302 IPC, 1860, the Supreme Court, observed",
inter alia that not all violent behaviour would fall within the prescription of waging war,
"as contemplated under sections 121, 121A, 122 read with section 120B. It was also",
found that the object sought to be achieved to make a case for the application of,
"section 121, should be directed against the sovereignty of the State and not merely",
"commission of a crime, even if that happens to be of higher magnitude. The concept of",
'waging war' should not be stretched too far. A balanced and realistic approach should,
"be maintained while construing the offence committed, to find out whether it amounts",
to waging of war against the State.,
"1. 'Wages war'.—The expression ""waging war"" means and can only mean waging war in",
"the manner usual in war. In other words, in order to support a conviction on such a",
charge it is not enough to show that the persons charged have contrived to obtain,
"possession of an armoury and have, when called upon to surrender it, used the rifles",
and ammunition so obtained against the Government troops. It must also be shown,
that the seizure of the armoury was part and parcel of a planned operation and that,
their intention in resisting the troops of the Government was to overwhelm and defeat,
these troops and then to go on and crush any further opposition with which they might,
meet until either the leaders of the movement succeeded in obtaining the possession,
of the machinery of Government or those in possession of it yielded to the demands of,
"their leaders.12. An illuminating discussion on the issue of ""Waging war against the",
"Government of India"" is to be found in this Court's decision in State (NCT of Delhi) v",
"Navjot Sandhu @ Afsan Guru.13. In para 272 of the judgment P Venkatarama Reddi, J,",
"speaking for the Court, referred to the report of the Indian Law Commission that",
examined the draft Penal Code in 1847 and quoted the following passage from the,
report:,
We conceive the term 'wages war against the Government' naturally to import a person,
arraying himself in defiance of the Government in like manner and by like means as a,
"foreign enemy would do, and it seems to us, we presume it did to the authors of the Code",
that any definition of the term so unambiguous would be superfluous.,
"The expression, ""in like manner and by like means as a foreign enemy"", is very",
significant to understand the nature of the violent acts that would amount to waging,
"war. In ""waging war"", the intent of the foreign enemy is not only to disturb public peace",
or law and order or to kill many people. A foreign enemy strikes at the sovereignty of,
"the State, and his conspiracy and actions are motivated by that animus.14.",
"[s 121.2] New concept of ""Waging war"" and Caution against using old",
authorities.—,
The concept of war in section 121 which includes insurrection or a civilian uprising,
should not be understood in the sense of conventional war between two nations or,
sovereign entities. The normative phenomenon of war as understood in the,
international sense does not fit into the ambit and reach of section 121. In the,
"Parliament attack case,15. the Supreme Court held as follows:",
"while these are the acceptable criteria of waging war, we must dissociate ourselves from",
the old English and Indian authorities to the extent that they lay down a too general test of,
attainment of an object of general public nature or a political object. The Supreme Court,
expressed reservations in adopting this test in its literal sense and construing it in a manner,
out of tune with the present day. The court must be cautious in adopting an approach which,
has the effect of bringing within the fold of S.121 all acts of lawless and violent acts,
"resulting in destruction of public properties, etc., and all acts of violent resistance to the",
armed personnel to achieve certain political objectives. The moment it is found that the,
"object sought to be attained is of a general public nature or has a political hue, the offensive",
violent acts targeted against the armed forces and public officials should not be branded as,
"acts of waging war. The expression ""waging war"" should not be stretched too far to hold",
that all the acts of disrupting public order and peace irrespective of their magnitude and,
repercussions could be reckoned as acts of waging war against the Government. A,
"balanced and realistic approach is called for in construing the expression ""waging war""",
irrespective of how it was viewed in the long past. An organised movement attended with,
violence and attacks against the public officials and armed forces while agitating for the,
repeal of an unpopular law or for preventing burdensome taxes were viewed as acts of,
treason in the form of levying war. We doubt whether such construction is in tune with the,
modern day perspectives and standards.,
[s 121.3] Terrorist Acts.—,
"Though every terrorist act does not amount to waging war, certain terrorist acts can",
also constitute the offence of waging war and there is no dichotomy between the two.,
Terrorist acts can manifest themselves into acts of war. According to the learned,
"Senior Counsel for the State, terrorist acts prompted by an intention to strike at the",
"sovereign authority of the State/Government, tantamount to waging war irrespective of",
"the number involved or the force employed. However, the degree of animus or intent",
and the magnitude of the acts done or attempted to be done would assume some,
"relevance in order to consider whether the terrorist acts give rise to a state of war. Yet,",
"the demarcating line is by no means clear, much less transparent. It is often a",
difference in degree. The distinction gets thinner if a comparison is made of terrorist,
acts with the acts aimed at overawing the Government by means of criminal force.,
Conspiracy to commit the latter offence is covered by section 121A.16. The,
"incorporation of Chapter IV of the Unlawful Activities (Prevention) Act, 1967, shall not",
"be viewed as deemed repeal of section 121 of the IPC, 1860. As explained in Navjot",
"Sandhu (supra), a ""terrorist act"" and an act of ""waging war against the Government of",
"India"" may have some overlapping features, but a terrorist act may not always be an act",
"of waging war against the Government of India, and vice-versa. The provisions of",
Chapter IV of the Unlawful Activities (Prevention) Act and those of Chapter VI of the,
"Indian Penal Code (IPC), 1860 including section 121, basically cover different areas.17.",
[s 121.4] Foreign nationals not excluded.—,
"The word ""whoever"" is a word of broad import. Advisedly such language was used",
departing from the observations made in the context of the Treason Statute. Supreme,
Court finds no good reason why foreign nationals stealthily entering into Indian territory,
with a view to subverting the functioning of the Government and destabilising the,
society should not be held guilty of waging war within the meaning of section 121. The,
section on its plain term need not be confined only to those who owe allegiance to the,
established Government.18.,
The explanation to the section makes it clear that the offence is complete even without,
any act or illegal omission occurring in pursuance of the conspiracy.19. It is not,
necessary that any act or illegal omission should have taken place in pursuance of a,
"conspiracy. An action of waging war, attempt to wage war or abetment to wage war are",
also covered by section 121-A.20.,
"2. Government of India.—The expression ""Government of India"" is surely not used in the",
"narrow and restricted sense in section 121. In our considered view, the expression",
"""Government of India"" is used in section 121 to imply the Indian State, the juristic",
embodiment of the sovereignty of the country that derives its legitimacy from the,
"collective will and consent of its people. The use of the phrase ""Government of India"" to",
signify the notion of sovereignty is consistent with the principles of Public International,
"Law, wherein sovereignty of a territorial unit is deemed to vest in the people of the",
territory and exercised by a representative government.21.,
3. 'Abets the waging of such war'.—Such abetment is made a special offence. It is not,
essential that as a result of the abetment the war should in fact be waged. The main,
purpose of the instigation should be 'the waging of war'. It should not be merely a,
remote and incidental purpose but the thing principally aimed at by the instigation.,
There must be active suggestion or stimulation to the use of violence.22. As criminal,
"acts took place pursuant to the conspiracy, the appellant, as a party to the conspiracy,",
"shall be deemed to have abetted the offence. In fact, he took an active part in a series",
of steps taken to pursue the objective of conspiracy. The offence of abetting the,
"waging of war, having regard to the extraordinary facts and circumstances of this case,",
"justifies the imposition of capital punishment and, therefore, the judgment of the High",
"Court in regard to the conviction and sentence of Afzal under section 121 IPC, 1860",
shall stand.23.,
[s 121.5] Principles relating to Section 121.—,
(i) No specific number of persons is necessary to constitute an offence under,
"S.121, Penal Code.",
(ii) The number concerned and the manner in which they are equipped or armed is,
not material.,
(iii) The true criterion is quo animo did the gathering assemble?,
(iv) The object of the gathering must be to attain by force and violence an object of,
"a general public nature, thereby striking directly against the King's authority.",
(v) There is no distinction between principal and accessory and all who take part in,
the unlawful act incur the same guilt.24.,
[s 121.6] CASES.—Mumbai Terror Attack Case.—,
The primary and the first offence that the appellant and his co-conspirators committed,
was the offence of waging war against the Government of India. What matters is that,
the attack was aimed at India and Indians. It was by foreign nationals. People were,
"killed for no other reason than they were Indians; in case of foreigners, they were killed",
"because their killing on Indian soil would embarrass India. The conspiracy, in",
"furtherance of which the attack was made, was, inter alia, to hit at India; to hit at its",
financial centre; to try to give rise to communal tensions and create internal strife and,
insurgency; to demand that India should withdraw from Kashmir; and to dictate its,
"relations with other countries. Nothing could have been more ""in like manner and by",
"like means as a foreign enemy would do"". The appellant was rightly held guilty of",
"waging war against the Government of India and rightly convicted under sections 121,",
"121A and 122 of the IPC, 1860.25.",
[s 121.7] Red Fort Attack Case.—,
The evidence as to the transmission of thoughts sharing the unlawful design would be,
sufficient for establishing the conspiracy. Again there must have been some act in,
pursuance of the agreement. The offence under section 121 of conspiring to wage a,
"war is proved to the hilt against the appellant, for which he has been rightly held guilty",
"for the offence punishable under sections 121 and 121-A, IPC, 1860.26.",
[s 121.8] Parliament Attack Case.—,
The single most important factor which impels to think that this is a case of waging or,
attempting to wage war against the Government of India is the target of attack chosen,
by the slain terrorists and conspirators and the immediate objective sought to be,
achieved thereby. The battlefront selected was the Parliament House complex. The,
target chosen was Parliament – a symbol of the sovereignty of the Indian republic.,
"Huge and powerful explosives, sophisticated arms and ammunition carried by the slain",
"terrorists who were to indulge in fidayeen operations with a definite purpose in view, is a",
clear indicator of the grave danger in store for the inmates of the House. The planned,
"operations if executed, would have spelt disaster for the whole nation. The undoubted",
objective and determination of the deceased terrorists was to impinge on the sovereign,
authority of the nation and its Government. Even if the conspired purpose and objective,
falls short of installing some other authority or entity in the place of an established,
"Government, it does not detract from the offence of waging war.27.",
"[s 121.9] Charge under Section 121, conviction under Section 123.—",
In the case the Court has specifically dealt with the question whether the offence under,
"section 123, IPC, 1860 of which the accused was not charged, is a minor offence falling",
"under the charges framed, and held that the fact that there was no charge against the",
"accused under this particular section, does not, in any way, result in prejudice to him",
because the charge of waging war and other allied offences are the subject matter of,
charges. It was held that the accused is not in any way handicapped by the absence of,
"charge under section 123, IPC, 1860. The case which he had to meet under section 123",
is no different from the case relating to the major charges which he was confronted,
"with. In the face of the stand he had taken and his conduct even after the attack, he",
could not have pleaded reasonable excuse for not passing on the information. It was,
"held that viewed from any angle, the evidence on record justifies his conviction under",
"section 123, IPC, 1860.28.",
[s 121.10] Previous Sanction.—,
"No Court shall take cognizance of any offence punishable under Chapter VI of IPC,",
1860 except with the previous sanction of Central Government or of the State,
"Government.29. Where sanction was obtained only after cognizance, yet no prejudice",
was caused because the matter was not proceeded any further and charge was also,
not yet framed. The Court remitted the matter for disposal after the date of sanction.30.,
"1. Subs. by the A.O. 1950, for ""Queen"".",
"2. Subs. by Act 26 of 1955, section 117 and Sch., for ""transportation for life"" (w.e.f. 1",
January1956).,
"3. Subs. by Act 16 of 1921, section 2, for ""and shall forfeit all his property"".",
"4. Subs. by Act 36 of 1957, section 3 and Sch. II, for ""Illustrations"" (w.e.f. 17 September 1957).",
"5. The brackets and letter ""(a)"" omitted by Act 36 of 1957, section 3 and Sch. II (w.e.f. 17",
September 1957).,
"6. Subs. by the A.O. 1950, for ""Queen"".",
7. Illustration (b) omitted by the A.O. 1950.,
"8. Mohammed Ajmal Mohammad Amir Kasab v State of Maharashtra, (2012) 9 SCC 1 [LNIND",
2012 SC 1215] : 2012 AIR (SCW) 4942 : AIR 2012 SC 3565 [LNIND 2012 SC 1215] : 2012 Cr LJ,
4770 : JT 2012 (8) SC 4 [LNIND 2012 SC 1215] : 2012 (7) Scale 553 .,
"9. State (NCT of Delhi) v Navjot Sandhu @ Afsan Guru, AIR 2005 SC 3820 [LNIND 2005 SC 580] :",
(2005) 11 SCC 600 [LNIND 2005 SC 580] : (2005) 2 SCC (Cr) 1715.,
"10. Maganlal v State, (1946) Nag 126.",
"11. Md Jamiluddin Nasir v State of WB, 2014 Cr LJ 3589 : AIR 2014 SC 2587 [LNIND 2014 SC",
138] .,
"12. Nazir Khan v State of Delhi, (2003) 8 SCC 461 [LNIND 2003 SC 696] : 2003 AIR SCW 5068 :",
AIR 2003 SC 4427 [LNIND 2003 SC 696] : 2003 Cr LJ 5021 .,
"13. State (NCT of Delhi) v Navjot Sandhu @ Afsan Guru, AIR 2005 SC 3820 [LNIND 2005 SC 580] :",
(2005) 11 SCC 600 [LNIND 2005 SC 580] : (2005) 2 SCC (Cr) 1715.,
"14. Mohammed Ajmal Mohammad Amir Kasab v State of Maharashtra, (2012) 9 SCC 1 [LNIND",
2012 SC 1215] : 2012 AIR (SCW) 4942 : AIR 2012 SC 3565 [LNIND 2012 SC 1215] : 2012 Cr LJ,
4770 : JT 2012 (8) SC 4 [LNIND 2012 SC 1215] : 2012 (7) Scale 553 .,
"15. State (NCT of Delhi) v Navjot Sandhu @ Afsan Guru, AIR 2005 SC 3820 [LNIND 2005 SC 580] :",
(2005) 11 SCC 600 [LNIND 2005 SC 580] : (2005) 2 SCC (Cr) 1715.,
"16. State (NCT of Delhi) v Navjot Sandhu @ Afsan Guru, AIR 2005 SC 3820 [LNIND 2005 SC 580] :",
(2005) 11 SCC 600 [LNIND 2005 SC 580] : (2005) 2 SCC (Cr) 1715.,
"17. Mohammed Ajmal Mohammad Amir Kasab v State of Maharashtra, (2012) 9 SCC 1 [LNIND",
2012 SC 1215] : 2012 AIR (SCW) 4942 : AIR 2012 SC 3565 [LNIND 2012 SC 1215] : 2012 Cr LJ,
4770 : JT 2012 (8) SC 4 [LNIND 2012 SC 1215] : 2012 (7) Scale 553 .,
"18. State (NCT of Delhi) v Navjot Sandhu @ Afsan Guru, AIR 2005 SC 3820 [LNIND 2005 SC 580] :",
(2005) 11 SCC 600 [LNIND 2005 SC 580] : (2005) 2 SCC (Cr) 1715.,
"19. Mohammed Ajmal Mohammad Amir Kasab v State of Maharashtra, (2012) 9 SCC 1 [LNIND",
2012 SC 1215] : 2012 AIR (SCW) 4942 : AIR 2012 SC 3565 [LNIND 2012 SC 1215] : 2012 Cr LJ,
4770 : JT 2012 (8) SC 4 [LNIND 2012 SC 1215] : 2012 (7) Scale 553 .,
"20. Adnan Bilal Mulla v State of Bombay, 2006 Cr LJ (NOC) 406 Bom : (2006) 5 AIR Bom R 11",
DB.,
"21. Mohammed Ajmal Mohammad Amir Kasab v State of Maharashtra, (2012) 9 SCC 1 [LNIND",
2012 SC 1215] : 2012 AIR (SCW) 4942 : AIR 2012 SC 3565 [LNIND 2012 SC 1215] : 2012 Cr LJ,
4770 : JT 2012 (8) SC 4 [LNIND 2012 SC 1215] : 2012 (7) Scale 553 .,
"22. Hasrat Mohani, (1922) 24 Bom LR 885 [LNIND 1922 BOM 136] .",
"23. State (NCT of Delhi) v Navjot Sandhu @ Afsan Guru, AIR 2005 SC 3820 [LNIND 2005 SC 580] :",
(2005) 11 SCC 600 [LNIND 2005 SC 580] : (2005) 2 SCC (Cr) 1715.,
"24. State (NCT of Delhi) v Navjot Sandhu @ Afsan Guru, AIR 2005 SC 3820 [LNIND 2005 SC 580] :",
(2005) 11 SCC 600 [LNIND 2005 SC 580] : (2005) 2 SCC (Cr) 1715 relied on Maganlal,
"Radhakrishan, AIR 1946 Ngp 173 .",
"25. Mohammed Ajmal Mohammad Amir Kasab v State of Maharashtra, (2012) 9 SCC 1 [LNIND",
2012 SC 1215] : 2012 AIR (SCW) 4942 : AIR 2012 SC 3565 [LNIND 2012 SC 1215] : 2012 Cr LJ,
4770 : JT 2012 (8) SC 4 [LNIND 2012 SC 1215] : 2012 (7) Scale 553 .,
"26. Mohd. Arif v State of NCT of Delhi, JT 2011 (9) SC 563 [LNIND 2011 SC 753] : 2011 (8) Scale",
328 [LNIND 2011 SC 753] : (2011) 10 SCR 56 [LNIND 2011 SC 753] : (2011) 13 SCC 621 [LNIND,
"2011 SC 753] relied on Kehar Singh v State (Delhi Admn.), AIR 1988 SC 1883 [LNIND 1988 SC",
"887] . See also State of Gujarat v Jaman Haji Mamad Jat, 2007 Cr LJ 1584 (Guj).",
"27. State (NCT of Delhi) v Navjot Sandhu @ Afsan Guru, AIR 2005 SC 3820 [LNIND 2005 SC 580] :",
(2005) 11 SCC 600 [LNIND 2005 SC 580] : (2005) 2 SCC (Cr) 1715.,
"28. Shaukat Hussain Guru v State (NCT) Delhi, AIR 2008 SC 2419 : (2008) 6 SCC 776 : 2008 Cr LJ",
3016 : 2008 (8) SCR 391 : (2008) 3 SCC (Cr) 137.,
"29. Section 196(1)(a) of Code of Criminal Procedure, 1973.",
"30. Jamil Akhtar v State of WB, 2001 Cr LJ 4529 (Cal).",
THE INDIAN PENAL CODE,
CHAPTER VI OF OFFENCES AGAINST THE STATE,
The offences against the State fall into the following groups:—,
"I. Waging, or attempting or conspiring to wage, or collecting men and ammunition to",
"wage war against the Government of India (sections 121, 121A, 122, 123).",
"II. Assaulting President, or Governor of a State with intent to compel or restrain the",
exercise of any lawful power (section 124).,
III. Sedition (section 124A).,
IV. War against a power at peace with the Government of India (section 125) or,
committing depredations on the territories of such power (sections 125–126).,
"V. Permitting or aiding or negligently suffering the escape of, or rescuing or harbouring,",
"a State prisoner (sections 128, 129, 130).",
31.[[s 121A] Conspiracy to commit offences punishable by section 121.,
Whoever within or without 32.[India] conspires to commit any of the offences,
"punishable by section 121, 33.[***]or conspires to overawe,1 by means of criminal",
"force or the show of criminal force, 34.[the Central Government or any 35.[State]",
"Government 36.[***]], shall be punished with 37.[imprisonment for life], or with",
"imprisonment of either description which may extend to ten years, 38.[and shall also",
be liable to fine].,
"Explanation.—To constitute a conspiracy under this section, it is not necessary that",
any act or illegal omission shall take place in pursuance thereof.],
COMMENT—,
Conspiracy to wage war.—This section provides for the offence of conspiring to wage,
war against the Government of India. It was thought right to make the offence of,
"conspiring by criminal force, or by show of criminal force, more severely penal than the",
"offence of actually taking part in an unlawful assembly, having for its object the",
overawing of the Government. The reason was this that persons who by conspiring to,
"bring about such a result, set the whole matter in motion, seemed more criminal and",
"far more deserving of punishment than those who were their mere tools, and only took",
part in such an assembly.,
The Explanation to section 121A clarifies that it is not necessary that any act or illegal,
"omission should take place pursuant to the conspiracy, in order to constitute the said",
"offence. Thus, the criminal act done by the deceased terrorists in order to capture the",
Parliament House is an act that amounts to waging or attempting to wage war. The,
conspiracy to commit either the offence of waging war or attempting to wage war or,
"abetting the waging of war is punishable under section 121A IPC, 1860 with the",
"maximum sentence of imprisonment for life. In the circumstances of the case, the",
imposition of maximum sentence is called for and the High Court is justified in holding,
"the appellant Afzal guilty under section 121A IPC, 1860 and sentencing him to life",
imprisonment.39.,
The words 'conspires to overawe by means of criminal force or the show of criminal,
"force, the Central Government, or any State Government' in this section clearly embrace",
"not merely a conspiracy to raise a general insurrection, but also a conspiracy to",
overawe the Central Government or any State Government by the organisation of a,
serious riot or a large and tumultuous unlawful assembly.40.,
[s 121A.1] Ingredients.—,
The section deals with two kinds of conspiracies:—,
1. Conspiring within or without India to commit any of the offences punishable by,
section 121.,
"2. Conspiring to overawe by means of criminal force or the show of criminal force, the",
Government.,
1. 'Overawe'.—The word 'overawe' clearly imports more than the creation of,
apprehension or alarm or even perhaps fear. It appears to connote the creation of a,
situation in which the members of the Central or State Government feel themselves,
compelled to choose between yielding to force or exposing themselves or members of,
the public to a very serious danger. It is not necessary that the danger should be a,
danger of assassination or of bodily injury to themselves. The danger might well be a,
danger to public property or to the safety of members of the general public.25 The word,
'overawe' clearly imports more than the creation of apprehension or alarm or fear. A,
slogan that Government can be changed by an armed revolution does not mean that,
there is a conspiracy to change the Government by criminal force. At best it means that,
the petitioners want to educate the people that by force only the Government could be,
changed.41.,
Explanation.—The Explanation to this section says that to constitute a conspiracy under,
"this section, it is not necessary that any act or illegal omission should take place in",
pursuance thereof.,
"31. Ins. by Act 27 of 1870, section 4.",
"32. The words ""British India"" have successively been subs. by the A.O. 1948, the A.O. 1950 and",
"Act 3 of 1951, section 3 and Sch. (w.e.f. 1 April 1951), to read as above.",
"33. The words ""or to deprive the Queen of the sovereignty of the Provinces or of any part",
"thereof"" omitted by the A.O. 1950.",
"34. Subs. by the A.O. 1937, for ""the Government of India or any Local Government"".",
"35. Subs. by the A.O. 1950, for ""Provincial"".",
"36. The words ""or the Government of Burma"" omitted by the A.O. 1948.",
"37. Subs. by Act 26 of 1955, section 117 and Sch., for ""transportation for life or any shorter",
"term"" (w.e.f. 1 January 1956).",
"38. Ins. by Act 16 of 1921, section 3.",
"39. State (NCT of Delhi) v Navjot Sandhu @ Afsan Guru, AIR 2005 SC 3820 [LNIND 2005 SC 580] :",
(2005) 11 SCC 600 [LNIND 2005 SC 580] : (2005) 2 SCC (Cr) 1715.,
"40. Ramanand v State, (1950) 30 Pat 152.",
"41. Aravindan, 1983 Cr LJ 1259 (Ker).",
THE INDIAN PENAL CODE,
CHAPTER VI OF OFFENCES AGAINST THE STATE,
The offences against the State fall into the following groups:—,
"I. Waging, or attempting or conspiring to wage, or collecting men and ammunition to",
"wage war against the Government of India (sections 121, 121A, 122, 123).",
"II. Assaulting President, or Governor of a State with intent to compel or restrain the",
exercise of any lawful power (section 124).,
III. Sedition (section 124A).,
IV. War against a power at peace with the Government of India (section 125) or,
committing depredations on the territories of such power (sections 125–126).,
"V. Permitting or aiding or negligently suffering the escape of, or rescuing or harbouring,",
"a State prisoner (sections 128, 129, 130).",
31.[[s 121A] Conspiracy to commit offences punishable by section 121.,
Whoever within or without 32.[India] conspires to commit any of the offences,
"punishable by section 121, 33.[***]or conspires to overawe,1 by means of criminal",
"force or the show of criminal force, 34.[the Central Government or any 35.[State]",
"Government 36.[***]], shall be punished with 37.[imprisonment for life], or with",
"imprisonment of either description which may extend to ten years, 38.[and shall also",
be liable to fine].,
"Explanation.—To constitute a conspiracy under this section, it is not necessary that",
any act or illegal omission shall take place in pursuance thereof.],
COMMENT—,
Conspiracy to wage war.—This section provides for the offence of conspiring to wage,
war against the Government of India. It was thought right to make the offence of,
"conspiring by criminal force, or by show of criminal force, more severely penal than the",
"offence of actually taking part in an unlawful assembly, having for its object the",
overawing of the Government. The reason was this that persons who by conspiring to,
"bring about such a result, set the whole matter in motion, seemed more criminal and",
"far more deserving of punishment than those who were their mere tools, and only took",
part in such an assembly.,
The Explanation to section 121A clarifies that it is not necessary that any act or illegal,
"omission should take place pursuant to the conspiracy, in order to constitute the said",
"offence. Thus, the criminal act done by the deceased terrorists in order to capture the",
Parliament House is an act that amounts to waging or attempting to wage war. The,
conspiracy to commit either the offence of waging war or attempting to wage war or,
"abetting the waging of war is punishable under section 121A IPC, 1860 with the",
"maximum sentence of imprisonment for life. In the circumstances of the case, the",
imposition of maximum sentence is called for and the High Court is justified in holding,
"the appellant Afzal guilty under section 121A IPC, 1860 and sentencing him to life",
imprisonment.39.,
The words 'conspires to overawe by means of criminal force or the show of criminal,
"force, the Central Government, or any State Government' in this section clearly embrace",
"not merely a conspiracy to raise a general insurrection, but also a conspiracy to",
overawe the Central Government or any State Government by the organisation of a,
serious riot or a large and tumultuous unlawful assembly.40.,
[s 121A.1] Ingredients.—,
The section deals with two kinds of conspiracies:—,
1. Conspiring within or without India to commit any of the offences punishable by,
section 121.,
"2. Conspiring to overawe by means of criminal force or the show of criminal force, the",
Government.,
1. 'Overawe'.—The word 'overawe' clearly imports more than the creation of,
apprehension or alarm or even perhaps fear. It appears to connote the creation of a,
situation in which the members of the Central or State Government feel themselves,
compelled to choose between yielding to force or exposing themselves or members of,
the public to a very serious danger. It is not necessary that the danger should be a,
danger of assassination or of bodily injury to themselves. The danger might well be a,
danger to public property or to the safety of members of the general public.25 The word,
'overawe' clearly imports more than the creation of apprehension or alarm or fear. A,
slogan that Government can be changed by an armed revolution does not mean that,
there is a conspiracy to change the Government by criminal force. At best it means that,
the petitioners want to educate the people that by force only the Government could be,
changed.41.,
Explanation.—The Explanation to this section says that to constitute a conspiracy under,
"this section, it is not necessary that any act or illegal omission should take place in",
pursuance thereof.,
"31. Ins. by Act 27 of 1870, section 4.",
"32. The words ""British India"" have successively been subs. by the A.O. 1948, the A.O. 1950 and",
"Act 3 of 1951, section 3 and Sch. (w.e.f. 1 April 1951), to read as above.",
"33. The words ""or to deprive the Queen of the sovereignty of the Provinces or of any part",
"thereof"" omitted by the A.O. 1950.",
"34. Subs. by the A.O. 1937, for ""the Government of India or any Local Government"".",
"35. Subs. by the A.O. 1950, for ""Provincial"".",
"36. The words ""or the Government of Burma"" omitted by the A.O. 1948.",
"37. Subs. by Act 26 of 1955, section 117 and Sch., for ""transportation for life or any shorter",
"term"" (w.e.f. 1 January 1956).",
"38. Ins. by Act 16 of 1921, section 3.",
"39. State (NCT of Delhi) v Navjot Sandhu @ Afsan Guru, AIR 2005 SC 3820 [LNIND 2005 SC 580] :",
(2005) 11 SCC 600 [LNIND 2005 SC 580] : (2005) 2 SCC (Cr) 1715.,
"40. Ramanand v State, (1950) 30 Pat 152.",
"41. Aravindan, 1983 Cr LJ 1259 (Ker).",
THE INDIAN PENAL CODE,
CHAPTER VI OF OFFENCES AGAINST THE STATE,
The offences against the State fall into the following groups:—,
"I. Waging, or attempting or conspiring to wage, or collecting men and ammunition to",
"wage war against the Government of India (sections 121, 121A, 122, 123).",
"II. Assaulting President, or Governor of a State with intent to compel or restrain the",
exercise of any lawful power (section 124).,
III. Sedition (section 124A).,
IV. War against a power at peace with the Government of India (section 125) or,
committing depredations on the territories of such power (sections 125–126).,
"V. Permitting or aiding or negligently suffering the escape of, or rescuing or harbouring,",
"a State prisoner (sections 128, 129, 130).",
"[s 122] Collecting arms, etc., with intention of waging war against the",
Government of India.,
"Whoever collects men, arms or ammunition or otherwise prepares to wage war with",
the intention of either waging or being prepared to wage war against the 42.,
"[Government of India], shall be punished with 43.[imprisonment for life] or",
"imprisonment of either description for a term not exceeding ten years, 44.[and shall",
also be liable to fine].,
COMMENT—,
This section is intended to put down with a heavy hand any preparation to wage war,
against the Government of India. The act made punishable by this section cannot be,
considered attempts; they are in truth preparations made for committing the offence of,
waging war. Preparation consists of devising or arranging the means or measures,
necessary for the commission of the offence. It differs widely from attempt which is,
the direct movement towards the commission after preparations are made. Preparation,
to commit an offence is punishable only when the preparation is to commit offences,
under section 122 (waging war against the Government of India) and section 399,
(preparation and an attempt is sometimes thin and has to be decided on the facts of,
each case). There is a greater degree of determination in attempt as compared with,
preparation.45.,
"42. Subs. by the A.O. 1950, for ""Queen"".",
"43. Subs. by Act 26 of 1955, section 117 and Sch., for ""transportation for life"" (w.e.f. 1 January",
1956).,
"44. Ins. by Act 16 of 1921, section 3.",
"45. Koppula Venkat Rao v State of AP, AIR 2004 SC 1874 [LNIND 2004 SC 301] : (2004) 3 SCC",
602 [LNIND 2004 SC 301] .,
THE INDIAN PENAL CODE,
CHAPTER VI OF OFFENCES AGAINST THE STATE,
The offences against the State fall into the following groups:—,
"I. Waging, or attempting or conspiring to wage, or collecting men and ammunition to",
"wage war against the Government of India (sections 121, 121A, 122, 123).",
"II. Assaulting President, or Governor of a State with intent to compel or restrain the",
exercise of any lawful power (section 124).,
III. Sedition (section 124A).,
IV. War against a power at peace with the Government of India (section 125) or,
committing depredations on the territories of such power (sections 125–126).,
"V. Permitting or aiding or negligently suffering the escape of, or rescuing or harbouring,",
"a State prisoner (sections 128, 129, 130).",
[s 123] Concealing with intent to facilitate design to wage war.,
"Whoever, by any act, or by any illegal omission, conceals the existence of a design to",
"wage war against the 46.[Government of India], intending by such concealment to",
"facilitate, or knowing it to be likely that such concealment will facilitate, the waging of",
"such war, shall be punished with imprisonment of either description for a term which",
"may extend to ten years, and shall also be liable to fine.",
COMMENT—,
"This section reiterates the principle enunciated in section 118, the only difference being",
that the penalty under it is more severe. Section 39 of Code of Criminal Procedure (Cr,
"PC), 1973 read with section 176 of the IPC, 1860 makes it an offence for any person",
"who is aware of the commission of, or of the intention of any person to commit, an",
"offence under sections 121–126, both inclusive (that is, offences against the State",
"specified in Chapter VI of the Code), to omit giving any notice or furnishing any",
"information to any public servant. Moreover, section 123 of IPC, 1860 makes it an",
"offence to conceal, whether by act or omission, the existence of a design to ""wage war""",
"against the Government of India, when intending by such concealment to facilitate, or",
"knowing it to be likely that such concealing will facilitate, the waging of such war.47.",
[s 123.1] Section 121 and Section 123.—,
"To prove an offence under section 121, IPC, 1860, the prosecution is required to prove",
that the accused is guilty of waging war against the Government of India or attempts to,
"wage such war, or abets the waging of such war, whereas for proving the offence under",
"section 123, IPC, 1860 against the accused, the prosecution is required to prove that",
there was a concealment by an act or by illegal omission of existence of a design to,
wage war against the Government of India and he intended by such concealment to,
"facilitate, or he knew that such concealment will facilitate, the waging of war. In the",
"present case, the accused was charged under section 121, IPC, 1860, for waging war",
against the Government of India or attempting to wage such war or abetting the,
waging of such war. The concealment of such fact by an act or illegal omission with an,
"intention to facilitate, or knowing that such concealment will facilitate, waging of war,",
even in the absence of proof of his involvement in waging of war against the,
"Government of India, will constitute an offence and an accused can always be",
"convicted for the concealment of such fact under section 123, IPC, 1860. The",
prosecution having been successful in proving the necessary ingredients of section,
"123, IPC, 1860, it would constitute a minor offence of a major offence and, therefore,",
"the petitioner was convicted under section 123, IPC, 1860 which is a minor offence of",
the offences he faced trial.48.,
"46. Subs. by the A.O. 1950, for ""Queen"".",
"47. Mohammed Ajmal Mohammad Amir Kasab v State of Maharashtra, (2012) 9 SCC 1 [LNIND",
2012 SC 1215] : 2012 AIR (SCW) 4942 : AIR 2012 SC 3565 [LNIND 2012 SC 1215] : 2012 Cr LJ,
4770 : JT 2012 (8) SC 4 [LNIND 2012 SC 1215] : 2012 (7) Scale 553 .,
"48. Shaukat Hussain Guru v State (NCT) Delhi, AIR 2008 SC 2419 : (2008) 6 SCC 776 : 2008 Cr LJ",
3016 : 2008 (8) SCR 391 : (2008) 3 SCC (Cr) 137.,
THE INDIAN PENAL CODE,
CHAPTER VI OF OFFENCES AGAINST THE STATE,
The offences against the State fall into the following groups:—,
"I. Waging, or attempting or conspiring to wage, or collecting men and ammunition to",
"wage war against the Government of India (sections 121, 121A, 122, 123).",
"II. Assaulting President, or Governor of a State with intent to compel or restrain the",
exercise of any lawful power (section 124).,
III. Sedition (section 124A).,
IV. War against a power at peace with the Government of India (section 125) or,
committing depredations on the territories of such power (sections 125–126).,
"V. Permitting or aiding or negligently suffering the escape of, or rescuing or harbouring,",
"a State prisoner (sections 128, 129, 130).",
"[s 124] Assaulting President, Governor, etc., with intent to compel or restrain",
the exercise of any lawful power.,
"Whoever, with the intention of inducing or compelling the 49.[President] of India, or the",
"50.[Governor 51.[***]] of any 52.[State], 53.[***] 54.[***] 55.[***] to exercise or refrain",
from exercising in any manner any of the lawful powers of such 56.[President] or 57.,
"[Governor 58.[***]],",
"assaults or wrongfully restrains, or attempts wrongfully to restrain, or overawes, by",
"means of criminal force or the show of criminal force, or attempts so to overawe, such",
"59.[President or 60.[Governor 61.[***]],",
shall be punished with imprisonment of either description for a term which may,
"extend to seven years, and shall also be liable to fine.",
COMMENT—,
This section is an amplification of the third clause of section 121A. It punishes severely,
"assaults, etc., made on high officers of Government.",
"49. Subs. by the A.O. 1950, for ""Governor General"".",
"50. Subs. by Act 3 of 1951, section 3 and Sch., for ""Governor"" (w.e.f. 1 April 1951).",
"51. The words ""or Rajpramukh"" omitted by the A.O. (No. 2) 1956.",
"52. Subs. by the A.O. 1950, for ""Province"". Earlier the word ""Province"" was subs. by the A.O.",
"1937, for the word ""Presidency"".",
"53. The words ""or a Lieutenant-Governor"" omitted by the A.O. 1937.",
"54. The words ""or a Member of the Council of the Governor General of India"" omitted by the A.O.",
1948.,
"55. The words ""or of the Council of any Presidency"" omitted by the A.O. 1937.",
"56. The words ""Governor General, Governor, Lieutenant-Governor or Member of Council"" have",
"successfully been amended by the A.O. 1937, the A.O. 1948 and the A.O. 1950 to read as above.",
"57. Subs. by Act 3 of 1951, section 3 and Sch., for ""Governor"" (w.e.f. 1 April 1951).",
"58. The words ""or Rajpramukh"" omitted by the A.O. (No. 2) 1956.",
"59. The words ""Governor General, Governor, Lieutenant-Governor or Member of Council"" have",
"successfully been amended by the A.O. 1937, the A.O. 1948 and the A.O. 1950 to read as above.",
"60. Subs. by Act 3 of 1951, section 3 and Sch., for ""Governor"" (w.e.f. 1 April 1951).",
"61. The words ""or Rajpramukh"" omitted by the A.O. (No. 2) 1956.",
THE INDIAN PENAL CODE,
CHAPTER VI OF OFFENCES AGAINST THE STATE,
The offences against the State fall into the following groups:—,
"I. Waging, or attempting or conspiring to wage, or collecting men and ammunition to",
"wage war against the Government of India (sections 121, 121A, 122, 123).",
"II. Assaulting President, or Governor of a State with intent to compel or restrain the",
exercise of any lawful power (section 124).,
III. Sedition (section 124A).,
IV. War against a power at peace with the Government of India (section 125) or,
committing depredations on the territories of such power (sections 125–126).,
"V. Permitting or aiding or negligently suffering the escape of, or rescuing or harbouring,",
"a State prisoner (sections 128, 129, 130).",
62.[[s 124A] Sedition.,
"Whoever, by words, either spoken or written, or by",
"signs, or by visible representation, or otherwise, brings or attempts",
"to bring into hatred or contempt, or excites or attempts to excite disaffection towards,",
"63.[***] the Government established by law in 64.[India], 65.[***] shall be punished with",
"66.[imprisonment for life], to which fine may be added, or with imprisonment which",
"may extend to three years, to which fine may be added, or with fine.",
"Explanation 1.—The expression ""disaffection"" includes disloyalty and all feelings of",
enmity.,
Explanation 2.—Comments expressing disapprobation of the measures of the,
"Government with a view to obtain their alteration by lawful means, without exciting or",
"attempting to excite hatred, contempt or disaffection, do not constitute an offence",
under this section.,
Explanation 3.—Comments expressing disapprobation of the administrative or other,
"action of the Government without exciting or attempting to excite hatred, contempt or",
"disaffection, do not constitute an offence under this section.]",
COMMENT—,
The offence under section 124A captioned as 'Sedition' is closely allied to treason – an,
offence against the State. Many personalities including the Father of the Nation and,
several freedom fighters have been tried and punished during the imperial rule under,
the above section. How far in a democratic set-up publishing or preaching of protest,
even questioning the foundation of the form of Government could be imputed as,
"causing disaffection towards the Government and thus, committing of any offence",
"under Chapter VI of the IPC, 1860 has to be examined within the letter and spirit of the",
Constitution and not as previously done under the imperial rule.67.,
"Sedition in itself is a comprehensive term, and it embraces all those practices, whether",
"by word, deed, or writing, which are calculated to disturb the tranquillity of the State,",
and lead ignorant persons to endeavour to subvert the Government and laws of the,
"country. The objects of sedition generally are to induce discontent and insurrection,",
"and stir up opposition to the Government, and bring the administration of justice into",
contempt; and the very tendency of sedition is to incite the people to insurrection and,
rebellion.,
"Sedition has been described as disloyalty in action, and the law considers as sedition all",
"those practices which have for their object to excite discontent or dissatisfaction, to create",
"public disturbance, or to lead to civil war; to bring into hatred or contempt the Sovereign or",
"the Government, the laws or constitutions of the realm, and generally all endeavours to",
promote public disorder.68.,
[s 124A.1] Constitutional Validity.—,
"The Supreme Court, in Kedar Nath Singh v State of Bihar,69. held that this section is not",
"unconstitutional and opined that only when it is construed that the words, written or",
"spoken, etc. which have the pernicious tendency or intention of creating public disorder",
or disturbance of law and order the law steps in to prevent such activities in the interest,
"of public order, then only the section strikes the correct balance between individual",
fundamental rights and the interest of public order. The Court also held that a citizen,
"has a right to say or write whatever he likes about the Government, or its measures, by",
"way of criticism or comment, so long as he does not incite people to violence against",
the Government established by law or with the intention of creating public disorder.,
The Supreme Court in a later Order in Common Cause v UOI70. ordered that the,
"authorities while dealing with the offences under section 124A of the IPC, 1860 shall be",
guided by the principles laid down by the Constitution Bench in Kedar Nath Singh.,
Section 124A],
[s 124A.2] Ingredients.—,
This section requires two essentials:—,
"1. Bringing or attempting to bring into hatred or contempt, or exciting or attempting to",
excite disaffection towards the Government of India.,
"2. Such act or attempt may be done (i) by words, either spoken or written; or (ii) by",
signs; or (iii) by visible representation.,
"1. Bringing or attempting to bring into hatred or contempt, or exciting or attempting to",
excite disaffection towards the Government of India.—A plain reading of the section,
would show that its application would be attracted only when the accused brings or,
attempts to bring into hatred or contempt or excites or attempts to excite disaffection,
"towards the Government established by law in India, by words either written or spoken",
"or visible signs or representations, etc.71. Necessary ingredient to attract punishment",
"under section 124A, IPC, 1860, appears to be the effort of bringing or attempting to",
bring into hatred or contempt to excite or attempt to excite disaffection towards the,
"Government established by law in India by words, either spoken or written or by signs",
or by visible representation or otherwise.72. The offence does not consist in exciting or,
"attempting to excite mutiny or rebellion, or any sort of actual disturbance, great or",
small. Whether any disturbance or outbreak was caused by the publication of seditious,
articles is absolutely immaterial. If the accused intended by the articles to excite,
"rebellion or disturbance, his act would doubtless fall within this section, and would",
"probably fall within other sections of the IPC, 1860. If he tried to excite feelings of",
"hatred or contempt towards the Government, that is sufficient to make him guilty under",
"this section.73. The Federal Court of India had, however, held that the gist of the",
offence of sedition is incitement to violence; mere abusive words are not enough.74.,
"The view of the Federal Court was subsequently overruled by the Privy Council,75. as",
being opposed to the view expressed in several cases.76.,
"In appreciating whether the act done by the accused by words ""either spoken or written",
"or by signs or by misrepresentation or otherwise"" one cannot shut one's eyes to",
changes in political consumptions which have taken place over the course of time after,
"the aforesaid penal provision section 124A was included in the IPC, 1860 and the",
"declared objective of the Government of the day. Very often, the demarcating line",
between political criticism of the Government and those causing disaffection against,
the Government is thin and waving.77.,
It is not an essential ingredient of sedition that the act done should be an act which is,
intended or likely to incite to public disorder.78. But this view of the law does no longer,
"seem to be correct, in view of the decision of the Supreme Court in Kedar Nath's",
"case,79. wherein Sinha, CJ observed:",
"comments, however strongly worded expressing, disapprobation of actions of Government,",
without exciting those feelings which generate the inclination to cause public disorder by,
"acts of violence, would not be penal. In other words, disloyalty to Government established",
by law is not the same thing as commenting in strong terms upon the measures or acts of,
"Government, or its agencies, so as to ameliorate the condition of the people or to secure the",
"cancellation or alteration of those acts or measures by lawful means, that is to say, without",
exciting those feelings of enmity or disloyalty which imply excitement to public disorder or,
the use of violence.,
In this very case it was further held that viewed in the context of antecedent history of,
"the legislation, its purpose and the mischief it seeks to suppress the provisions of",
"section 124A and section 505 of the IPC, 1860 should be limited in their application to",
acts involving intention or tendency to create disorder or disturbance of law and order,
or incitement to violence. Where the propaganda secretary of a Gurdwara addressed a,
"gathering of Sikhs, some of whom were wearing black clothes and turbans, and in",
course of his speech though he did not give direct incitement to violence but he,
"nevertheless gave exaggerated figures of casualties following Army action in Punjab, it",
was held that it would be quite proper to infer from the text and tenor of the speech,
made by the accused that the same was intended to bring the Government into,
contempt with the likelihood of eruption of violence and public disorder contemplated,
"in Kedarnath's case. In the circumstances, his petition for quashing the criminal",
"proceedings against him under section 482, Cr PC, 1973 was rejected.80. The decisive",
"ingredient for establishing the offence of Sedition under section 124A, IPC, 1860 is the",
doing of certain acts which would bring the Government established by law in India into,
"hatred or contempt, etc. In this case, there is not even a suggestion that appellant did",
anything as against the Government of India or any other Government of the State. The,
charge framed against the accused contains no averment that accused did anything as,
against the Government.81. The prosecution evidence shows that the slogans were,
raised a couple of times only by the accused and that neither the slogans evoked a,
response from any other person of the Sikh community nor reaction from people of,
other communities. Supreme Court found it difficult to hold that upon the raising of,
"such casual slogans, a couple of times without any other act whatsoever, the charge of",
sedition can be founded.,
"The casual raising of the slogans, once or twice by two individuals alone cannot be",
said to be aimed at exciting or attempt to excite hatred or disaffection towards the,
"Government as established by law in India. Section 124A IPC, 1860 would in the facts",
and circumstances of the case have no application whatsoever and would not be,
attracted to the facts and circumstances of the case.82. The prosecution case is that,
the accused has delivered a speech creating ill will and promoting enmity among,
different retail and linguistic groups of Indian people and thereby committed the,
"offences punishable under sections 124(A) and 153(A) of the IPC, 1860. A perusal of",
the First Information Report and the charge sheet laid by the respondent police would,
"make it abundantly clear that the allegations mentioned therein, if proved, would",
"naturally attract the provisions of sections 124(A) and 153(A) of IPC, 1860.83. State of",
"Punjab and Union Territory, Chandigarh, had been declared Disturbed Area and the",
extremists activities were going on a large scale in September 1984. The law and order,
"situation had so deteriorated that the Army had to spread out. In this background, it will",
be proper to infer from the text and tenor of the speech made by the accused that the,
same was intended and it did tend to bring the Government into contempt with the,
likelihood of eruption of violence and public disorder.84.,
"2. Such act, attempt, etc., may be done by words, either spoken or written or by signs",
or by visible representation.—Not only the writer of seditious articles but whoever uses,
in any way words or printed matter for the purpose of exciting feelings of disaffection,
"to the Government is liable under the section, whether he is the actual author or not.85.",
[s 124A.3] 'Written'.—,
"In Raghubir Singh,86. it has been held that for establishing the charge of sedition, it is",
not necessary that the accused must be the author of the seditious material and that,
distribution or circulation of seditious material may also be sufficient on the facts and,
circumstances of the case and even the act of courier is sometimes enough in a case,
of conspiracy and further that it is also not necessary that a person should be the,
participant in the conspiracy from start to finish. Disaffection may be excited in a,
"thousand different ways. A poem, an allegory, a drama, a philosophical or historical",
"discussion, may be used for the purpose of exciting disaffection. Seditious writing,",
"while it remains in the hands of the author unpublished, will not make him liable.",
Publication of some kind is necessary.87. Sending of seditious matter by post,
addressed to a private individual not by name but by designation as the representative,
of a large body of students amounts to publication if it is opened by anybody.88.,
[s 124A.4] Advise to kill members of police force.—,
"The Government established by law acts through human agency and admittedly, the",
police service or force is itself a principal agency for the administration and,
maintenance of the law and order in the State. When a person makes a statement or,
"gives an advice to resort to violence by killing four to five police officers, he could be",
said to have criticised the police force or the service en bloc. In such circumstances a,
prima facie case of waging war against the Government could be said to have been,
made out.89.,
[s 124A.5] 'Visible representation'.—,
Sedition does not necessarily consist of written matter: it may be evidenced by a wood-,
cut or engraving of any kind.90.,
[s 124A.6] Explanations 2 and 3.—,
Both these Explanations have a strictly defined and limited scope. They have no,
"application unless the article in question criticises ""the measures of Government"" or",
"""administrative or other action of the Government"" without exciting or attempting to",
"excite hatred, contempt or disaffection.",
[s 124A.7] Membership in a banned organization.—,
Mere membership of a banned organization will not incriminate a person unless he,
resorts to violence or incites people to violence or does an act intended to create,
disorder or disturbance of public peace by resort to violence.91.,
[s 124A.8] 'Disapprobation'.—,
This means simply disapproval. It is quite possible to disapprove of a man's sentiments,
or actions and yet to like him.92.,
[s 124A.9] Liability for extracts from other papers.—,
The law does not excuse the publication in newspapers of writings which are in,
"themselves seditious libels, merely because they are copied from foreign newspapers",
as items of news.93.,
[s 124A.10] Liability for letters of correspondents.—,
The editor of a newspaper is liable for unsigned seditious letters appearing in his,
paper.94.,
[s 124A.11] Publication of seditious exhibits.—,
Republication of a seditious article used as an exhibit in a case of sedition is not,
justifiable.95.,
[s 124A.12] Listening to cassettes.—,
Certain accused persons were convicted for listening to some cassettes containing,
speeches of seditious nature. There was no other evidence to show that they either,
committed or conspired or attempted to commit or advocated or advised or knowingly,
facilitated commission of disruptive activities under Terrorist and Disruptive Activities,
"(Prevention) Act (TADA), 1987. Their conviction was set aside.96.",
[s 124A.13] Previous Sanction.—,
No sanction has been obtained to prosecute the petitioner/ accused for the offence,
"under section 124A of the IPC, 1860 which is a mandatory requirement for the Court to",
"take cognizance of such offence. When that be so, whether the contents of the poster",
"and its publication by the accused, even if it is at his instance, to determine whether",
"any offence of sedition is made out thereof is not called for. Section 196 of the Cr PC,",
1973 mandates that a complaint for such offence should be expressly authorised by,
"the Government, and if not, the Court cannot take cognizance of such offence against",
the accused person. Committal proceedings taken over the final report laid before the,
Court without production of order of sanction satisfying the statutory mandate is,
clearly unsustainable.97.,
"62. Subs. by Act 4 of 1898, section 4, for section 124A. Earlier section 124A was inserted by",
"Act 27 of 1870, section 5.",
"63. The words ""Her Majesty or"" omitted by the A.O. 1950. The words ""or the Crown",
"Representative"" ins. after the word ""Majesty"" by the A.O. 1937 were omitted by the A.O. 1948.",
"64. The words ""British India"" have successively been subs. by the A.O. 1948, the A.O. 1950 and",
"Act 3 of 1951, section 3 and Sch. (w.e.f. 1 April 1951), to read as above.",
"65. The words ""or British Burma"" omitted by the A.O. 1948. Earlier the words ""or British Burma""",
were inserted by the A.O. 1937.,
"66. Subs. by Act 26 of 1955, section 117 and Sch., for ""transportation for life or any shorter",
"term"" (w.e.f. 1 January1956).",
"67. Advocate Manuel PJ v State, 2012 (4) Ker LT 708 .",
"68. Nazir Khan v State of Delhi, AIR 2003 SC 4427 [LNIND 2003 SC 696] : (2003) 8 SCC 461",
[LNIND 2003 SC 696] : JT 2003 (1) SC 200 : 2003 Cr LJ 5021 .,
"69. Kedar Nath Singh v State of Bihar, AIR 1962 SC 955 [LNIND 1962 SC 21] : [1962] Supp 2 SCR",
76.,
"70. Common Cause v UOI, Writ Petitions Civil No. 683/2016.",
"71. Balwant Singh v State of Punjab, AIR 1995 SC 1785 [LNIND 1995 SC 1420] : (1995) 3 SCC",
214 [LNIND 1995 SC 1420] .,
"72. Asit Kumar Sen Gupta v State of Chhattisgarh, 2012 (NOC) Cr LJ 384 (Chh).",
"73. Bal Gangadhar Tilak, (1897) 22 Bom 112, 528, (PC); BG Tilak, (1908) 10 Bom LR 848 [LNIND",
"1908 BOM 85] ; Amba Prasad, (1897) 20 All 55 , 69, FB; Luxman, (1899) 2 Bom LR 286 ; Shankar,",
(1910) 12 Bom LR 675 [LNIND 1910 BOM 66] .,
"74. Niharendu Dutt Majumdar, (1942) FCR 38 .",
"75. Sadashi v Narayan v State, (1947) 49 Bom LR 526 , (1947) Bom 110, 74 IA 89.",
"76. Bal Gangadhar Tilak, (1897) 22 Bom 528, PC; Besant v Advocate-General of Madras, (1919)",
"43 Mad 146 : 21 Bom LR 867 PC; Wallace-Johnson, (1940) AC 231 .",
"77. Advocate Manuel PJ v State, 2012 (4) Ker LT 708 .",
"78. Pratap ""Urdu Daily of New Delhi"", (1949) 2 Punj 348.",
"79. Kedar Nath, AIR 1962 SC 955 [LNIND 1962 SC 21] : 1962 (2) Cr LJ 103 .",
"80. Naurang Singh, 1986 Cr LJ 846 (P&H).",
"81. Bilal Ahmed Kaloo v State of AP, AIR 1997 SC 3483 [LNIND 1997 SC 1060] : (1997) 7 SCC",
431 [LNIND 1997 SC 1060] : 1997 Cr LJ 4091 : (1997) 1 SCC (Cr) 1094.,
"82. Balwant Singh v State of Punjab, AIR 1995 SC 1785 [LNIND 1995 SC 1420] : (1995) 3 SCC",
214 [LNIND 1995 SC 1420] .,
"83. P Nedumaran v State, 2003 Cr LJ 4388 (Mad).",
"84. Naurang Singh v Union Territory, Chandigarh, 1986 Cr LJ 846 (PH).",
"85. Bal Gangadhar Tilak, (1897) 22 Bom 112, 129; Jogendra Chunder Bose, (1891) 19 Cal 35 , 41.",
"86. Raghubir Singh, 1987 Cr LJ 157 : AIR 1987 SC 149 [LNIND 1986 SC 336] : (1986) 4 SCC 481",
[LNIND 1986 SC 336] .,
"87. Foster, 198.",
"88. Suresh Chandra Sanyal, (1912) 39 Cal 606 . Recovery of seditious material in the shape of",
letters is enough though they were not written by the person carrying them. Raghubir Singh v,
"State of Bihar, 1987 Cr LJ 157 : AIR 1987 SC 149 [LNIND 1986 SC 336] : (1986) 4 SCC 481",
[LNIND 1986 SC 336] .,
"89. Hardik Bharatbhai Patel v State of Gujarat, 2016 Cr LJ 225 (Guj) : 2016 (1) RCR (Criminal)",
542.,
"90. Alexander M Sullivan, (1868) 11 Cox 44, 51.",
"91. Indra Das v State of Assam, (2011) 3 SCC 380 [LNIND 2011 SC 164] : 2011 Cr LJ 1646 :",
"(2011) 1 SCC (Cr) 1150 : (2011) 4 SCR 289 [LNIND 2011 SC 164] ; State v Raneef, (2011) 1 SCC",
784 [LNIND 2011 SC 3] : AIR 2011 SC 340 [LNIND 2011 SC 3] : 2011 Cr LJ 982 .,
"92. Jogendra Chunder Bose, (1891) 19 Cal 35 , 44; Bal Gangadhar Tilak, (1897) 22 Bom 112, 137.",
"93. Alexander M Sullivan, (1886) 11 Cox 44.",
"94. Apurba Krishna Bose, (1907) 35 Cal 141 .",
95. Ibid.,
"96. Balbir Singh v State of UP, AIR 2000 SC 464 : 2000 Cr LJ 590 .",
"97. Advocate Manuel PJ v State, 2012 (4) Ker LT 708 .",
THE INDIAN PENAL CODE,
CHAPTER VI OF OFFENCES AGAINST THE STATE,
The offences against the State fall into the following groups:—,
"I. Waging, or attempting or conspiring to wage, or collecting men and ammunition to",
"wage war against the Government of India (sections 121, 121A, 122, 123).",
"II. Assaulting President, or Governor of a State with intent to compel or restrain the",
exercise of any lawful power (section 124).,
III. Sedition (section 124A).,
IV. War against a power at peace with the Government of India (section 125) or,
committing depredations on the territories of such power (sections 125–126).,
"V. Permitting or aiding or negligently suffering the escape of, or rescuing or harbouring,",
"a State prisoner (sections 128, 129, 130).",
62.[[s 124A] Sedition.,
"Whoever, by words, either spoken or written, or by",
"signs, or by visible representation, or otherwise, brings or attempts",
"to bring into hatred or contempt, or excites or attempts to excite disaffection towards,",
"63.[***] the Government established by law in 64.[India], 65.[***] shall be punished with",
"66.[imprisonment for life], to which fine may be added, or with imprisonment which",
"may extend to three years, to which fine may be added, or with fine.",
"Explanation 1.—The expression ""disaffection"" includes disloyalty and all feelings of",
enmity.,
Explanation 2.—Comments expressing disapprobation of the measures of the,
"Government with a view to obtain their alteration by lawful means, without exciting or",
"attempting to excite hatred, contempt or disaffection, do not constitute an offence",
under this section.,
Explanation 3.—Comments expressing disapprobation of the administrative or other,
"action of the Government without exciting or attempting to excite hatred, contempt or",
"disaffection, do not constitute an offence under this section.]",
COMMENT—,
The offence under section 124A captioned as 'Sedition' is closely allied to treason – an,
offence against the State. Many personalities including the Father of the Nation and,
several freedom fighters have been tried and punished during the imperial rule under,
the above section. How far in a democratic set-up publishing or preaching of protest,
even questioning the foundation of the form of Government could be imputed as,
"causing disaffection towards the Government and thus, committing of any offence",
"under Chapter VI of the IPC, 1860 has to be examined within the letter and spirit of the",
Constitution and not as previously done under the imperial rule.67.,
"Sedition in itself is a comprehensive term, and it embraces all those practices, whether",
"by word, deed, or writing, which are calculated to disturb the tranquillity of the State,",
and lead ignorant persons to endeavour to subvert the Government and laws of the,
"country. The objects of sedition generally are to induce discontent and insurrection,",
"and stir up opposition to the Government, and bring the administration of justice into",
contempt; and the very tendency of sedition is to incite the people to insurrection and,
rebellion.,
"Sedition has been described as disloyalty in action, and the law considers as sedition all",
"those practices which have for their object to excite discontent or dissatisfaction, to create",
"public disturbance, or to lead to civil war; to bring into hatred or contempt the Sovereign or",
"the Government, the laws or constitutions of the realm, and generally all endeavours to",
promote public disorder.68.,
[s 124A.1] Constitutional Validity.—,
"The Supreme Court, in Kedar Nath Singh v State of Bihar,69. held that this section is not",
"unconstitutional and opined that only when it is construed that the words, written or",
"spoken, etc. which have the pernicious tendency or intention of creating public disorder",
or disturbance of law and order the law steps in to prevent such activities in the interest,
"of public order, then only the section strikes the correct balance between individual",
fundamental rights and the interest of public order. The Court also held that a citizen,
"has a right to say or write whatever he likes about the Government, or its measures, by",
"way of criticism or comment, so long as he does not incite people to violence against",
the Government established by law or with the intention of creating public disorder.,
The Supreme Court in a later Order in Common Cause v UOI70. ordered that the,
"authorities while dealing with the offences under section 124A of the IPC, 1860 shall be",
guided by the principles laid down by the Constitution Bench in Kedar Nath Singh.,
Section 124A],
[s 124A.2] Ingredients.—,
This section requires two essentials:—,
"1. Bringing or attempting to bring into hatred or contempt, or exciting or attempting to",
excite disaffection towards the Government of India.,
"2. Such act or attempt may be done (i) by words, either spoken or written; or (ii) by",
signs; or (iii) by visible representation.,
"1. Bringing or attempting to bring into hatred or contempt, or exciting or attempting to",
excite disaffection towards the Government of India.—A plain reading of the section,
would show that its application would be attracted only when the accused brings or,
attempts to bring into hatred or contempt or excites or attempts to excite disaffection,
"towards the Government established by law in India, by words either written or spoken",
"or visible signs or representations, etc.71. Necessary ingredient to attract punishment",
"under section 124A, IPC, 1860, appears to be the effort of bringing or attempting to",
bring into hatred or contempt to excite or attempt to excite disaffection towards the,
"Government established by law in India by words, either spoken or written or by signs",
or by visible representation or otherwise.72. The offence does not consist in exciting or,
"attempting to excite mutiny or rebellion, or any sort of actual disturbance, great or",
small. Whether any disturbance or outbreak was caused by the publication of seditious,
articles is absolutely immaterial. If the accused intended by the articles to excite,
"rebellion or disturbance, his act would doubtless fall within this section, and would",
"probably fall within other sections of the IPC, 1860. If he tried to excite feelings of",
"hatred or contempt towards the Government, that is sufficient to make him guilty under",
"this section.73. The Federal Court of India had, however, held that the gist of the",
offence of sedition is incitement to violence; mere abusive words are not enough.74.,
"The view of the Federal Court was subsequently overruled by the Privy Council,75. as",
being opposed to the view expressed in several cases.76.,
"In appreciating whether the act done by the accused by words ""either spoken or written",
"or by signs or by misrepresentation or otherwise"" one cannot shut one's eyes to",
changes in political consumptions which have taken place over the course of time after,
"the aforesaid penal provision section 124A was included in the IPC, 1860 and the",
"declared objective of the Government of the day. Very often, the demarcating line",
between political criticism of the Government and those causing disaffection against,
the Government is thin and waving.77.,
It is not an essential ingredient of sedition that the act done should be an act which is,
intended or likely to incite to public disorder.78. But this view of the law does no longer,
"seem to be correct, in view of the decision of the Supreme Court in Kedar Nath's",
"case,79. wherein Sinha, CJ observed:",
"comments, however strongly worded expressing, disapprobation of actions of Government,",
without exciting those feelings which generate the inclination to cause public disorder by,
"acts of violence, would not be penal. In other words, disloyalty to Government established",
by law is not the same thing as commenting in strong terms upon the measures or acts of,
"Government, or its agencies, so as to ameliorate the condition of the people or to secure the",
"cancellation or alteration of those acts or measures by lawful means, that is to say, without",
exciting those feelings of enmity or disloyalty which imply excitement to public disorder or,
the use of violence.,
In this very case it was further held that viewed in the context of antecedent history of,
"the legislation, its purpose and the mischief it seeks to suppress the provisions of",
"section 124A and section 505 of the IPC, 1860 should be limited in their application to",
acts involving intention or tendency to create disorder or disturbance of law and order,
or incitement to violence. Where the propaganda secretary of a Gurdwara addressed a,
"gathering of Sikhs, some of whom were wearing black clothes and turbans, and in",
course of his speech though he did not give direct incitement to violence but he,
"nevertheless gave exaggerated figures of casualties following Army action in Punjab, it",
was held that it would be quite proper to infer from the text and tenor of the speech,
made by the accused that the same was intended to bring the Government into,
contempt with the likelihood of eruption of violence and public disorder contemplated,
"in Kedarnath's case. In the circumstances, his petition for quashing the criminal",
"proceedings against him under section 482, Cr PC, 1973 was rejected.80. The decisive",
"ingredient for establishing the offence of Sedition under section 124A, IPC, 1860 is the",
doing of certain acts which would bring the Government established by law in India into,
"hatred or contempt, etc. In this case, there is not even a suggestion that appellant did",
anything as against the Government of India or any other Government of the State. The,
charge framed against the accused contains no averment that accused did anything as,
against the Government.81. The prosecution evidence shows that the slogans were,
raised a couple of times only by the accused and that neither the slogans evoked a,
response from any other person of the Sikh community nor reaction from people of,
other communities. Supreme Court found it difficult to hold that upon the raising of,
"such casual slogans, a couple of times without any other act whatsoever, the charge of",
sedition can be founded.,
"The casual raising of the slogans, once or twice by two individuals alone cannot be",
said to be aimed at exciting or attempt to excite hatred or disaffection towards the,
"Government as established by law in India. Section 124A IPC, 1860 would in the facts",
and circumstances of the case have no application whatsoever and would not be,
attracted to the facts and circumstances of the case.82. The prosecution case is that,
the accused has delivered a speech creating ill will and promoting enmity among,
different retail and linguistic groups of Indian people and thereby committed the,
"offences punishable under sections 124(A) and 153(A) of the IPC, 1860. A perusal of",
the First Information Report and the charge sheet laid by the respondent police would,
"make it abundantly clear that the allegations mentioned therein, if proved, would",
"naturally attract the provisions of sections 124(A) and 153(A) of IPC, 1860.83. State of",
"Punjab and Union Territory, Chandigarh, had been declared Disturbed Area and the",
extremists activities were going on a large scale in September 1984. The law and order,
"situation had so deteriorated that the Army had to spread out. In this background, it will",
be proper to infer from the text and tenor of the speech made by the accused that the,
same was intended and it did tend to bring the Government into contempt with the,
likelihood of eruption of violence and public disorder.84.,
"2. Such act, attempt, etc., may be done by words, either spoken or written or by signs",
or by visible representation.—Not only the writer of seditious articles but whoever uses,
in any way words or printed matter for the purpose of exciting feelings of disaffection,
"to the Government is liable under the section, whether he is the actual author or not.85.",
[s 124A.3] 'Written'.—,
"In Raghubir Singh,86. it has been held that for establishing the charge of sedition, it is",
not necessary that the accused must be the author of the seditious material and that,
distribution or circulation of seditious material may also be sufficient on the facts and,
circumstances of the case and even the act of courier is sometimes enough in a case,
of conspiracy and further that it is also not necessary that a person should be the,
participant in the conspiracy from start to finish. Disaffection may be excited in a,
"thousand different ways. A poem, an allegory, a drama, a philosophical or historical",
"discussion, may be used for the purpose of exciting disaffection. Seditious writing,",
"while it remains in the hands of the author unpublished, will not make him liable.",
Publication of some kind is necessary.87. Sending of seditious matter by post,
addressed to a private individual not by name but by designation as the representative,
of a large body of students amounts to publication if it is opened by anybody.88.,
[s 124A.4] Advise to kill members of police force.—,
"The Government established by law acts through human agency and admittedly, the",
police service or force is itself a principal agency for the administration and,
maintenance of the law and order in the State. When a person makes a statement or,
"gives an advice to resort to violence by killing four to five police officers, he could be",
said to have criticised the police force or the service en bloc. In such circumstances a,
prima facie case of waging war against the Government could be said to have been,
made out.89.,
[s 124A.5] 'Visible representation'.—,
Sedition does not necessarily consist of written matter: it may be evidenced by a wood-,
cut or engraving of any kind.90.,
[s 124A.6] Explanations 2 and 3.—,
Both these Explanations have a strictly defined and limited scope. They have no,
"application unless the article in question criticises ""the measures of Government"" or",
"""administrative or other action of the Government"" without exciting or attempting to",
"excite hatred, contempt or disaffection.",
[s 124A.7] Membership in a banned organization.—,
Mere membership of a banned organization will not incriminate a person unless he,
resorts to violence or incites people to violence or does an act intended to create,
disorder or disturbance of public peace by resort to violence.91.,
[s 124A.8] 'Disapprobation'.—,
This means simply disapproval. It is quite possible to disapprove of a man's sentiments,
or actions and yet to like him.92.,
[s 124A.9] Liability for extracts from other papers.—,
The law does not excuse the publication in newspapers of writings which are in,
"themselves seditious libels, merely because they are copied from foreign newspapers",
as items of news.93.,
[s 124A.10] Liability for letters of correspondents.—,
The editor of a newspaper is liable for unsigned seditious letters appearing in his,
paper.94.,
[s 124A.11] Publication of seditious exhibits.—,
Republication of a seditious article used as an exhibit in a case of sedition is not,
justifiable.95.,
[s 124A.12] Listening to cassettes.—,
Certain accused persons were convicted for listening to some cassettes containing,
speeches of seditious nature. There was no other evidence to show that they either,
committed or conspired or attempted to commit or advocated or advised or knowingly,
facilitated commission of disruptive activities under Terrorist and Disruptive Activities,
"(Prevention) Act (TADA), 1987. Their conviction was set aside.96.",
[s 124A.13] Previous Sanction.—,
No sanction has been obtained to prosecute the petitioner/ accused for the offence,
"under section 124A of the IPC, 1860 which is a mandatory requirement for the Court to",
"take cognizance of such offence. When that be so, whether the contents of the poster",
"and its publication by the accused, even if it is at his instance, to determine whether",
"any offence of sedition is made out thereof is not called for. Section 196 of the Cr PC,",
1973 mandates that a complaint for such offence should be expressly authorised by,
"the Government, and if not, the Court cannot take cognizance of such offence against",
the accused person. Committal proceedings taken over the final report laid before the,
Court without production of order of sanction satisfying the statutory mandate is,
clearly unsustainable.97.,
"62. Subs. by Act 4 of 1898, section 4, for section 124A. Earlier section 124A was inserted by",
"Act 27 of 1870, section 5.",
"63. The words ""Her Majesty or"" omitted by the A.O. 1950. The words ""or the Crown",
"Representative"" ins. after the word ""Majesty"" by the A.O. 1937 were omitted by the A.O. 1948.",
"64. The words ""British India"" have successively been subs. by the A.O. 1948, the A.O. 1950 and",
"Act 3 of 1951, section 3 and Sch. (w.e.f. 1 April 1951), to read as above.",
"65. The words ""or British Burma"" omitted by the A.O. 1948. Earlier the words ""or British Burma""",
were inserted by the A.O. 1937.,
"66. Subs. by Act 26 of 1955, section 117 and Sch., for ""transportation for life or any shorter",
"term"" (w.e.f. 1 January1956).",
"67. Advocate Manuel PJ v State, 2012 (4) Ker LT 708 .",
"68. Nazir Khan v State of Delhi, AIR 2003 SC 4427 [LNIND 2003 SC 696] : (2003) 8 SCC 461",
[LNIND 2003 SC 696] : JT 2003 (1) SC 200 : 2003 Cr LJ 5021 .,
"69. Kedar Nath Singh v State of Bihar, AIR 1962 SC 955 [LNIND 1962 SC 21] : [1962] Supp 2 SCR",
76.,
"70. Common Cause v UOI, Writ Petitions Civil No. 683/2016.",
"71. Balwant Singh v State of Punjab, AIR 1995 SC 1785 [LNIND 1995 SC 1420] : (1995) 3 SCC",
214 [LNIND 1995 SC 1420] .,
"72. Asit Kumar Sen Gupta v State of Chhattisgarh, 2012 (NOC) Cr LJ 384 (Chh).",
"73. Bal Gangadhar Tilak, (1897) 22 Bom 112, 528, (PC); BG Tilak, (1908) 10 Bom LR 848 [LNIND",
"1908 BOM 85] ; Amba Prasad, (1897) 20 All 55 , 69, FB; Luxman, (1899) 2 Bom LR 286 ; Shankar,",
(1910) 12 Bom LR 675 [LNIND 1910 BOM 66] .,
"74. Niharendu Dutt Majumdar, (1942) FCR 38 .",
"75. Sadashi v Narayan v State, (1947) 49 Bom LR 526 , (1947) Bom 110, 74 IA 89.",
"76. Bal Gangadhar Tilak, (1897) 22 Bom 528, PC; Besant v Advocate-General of Madras, (1919)",
"43 Mad 146 : 21 Bom LR 867 PC; Wallace-Johnson, (1940) AC 231 .",
"77. Advocate Manuel PJ v State, 2012 (4) Ker LT 708 .",
"78. Pratap ""Urdu Daily of New Delhi"", (1949) 2 Punj 348.",
"79. Kedar Nath, AIR 1962 SC 955 [LNIND 1962 SC 21] : 1962 (2) Cr LJ 103 .",
"80. Naurang Singh, 1986 Cr LJ 846 (P&H).",
"81. Bilal Ahmed Kaloo v State of AP, AIR 1997 SC 3483 [LNIND 1997 SC 1060] : (1997) 7 SCC",
431 [LNIND 1997 SC 1060] : 1997 Cr LJ 4091 : (1997) 1 SCC (Cr) 1094.,
"82. Balwant Singh v State of Punjab, AIR 1995 SC 1785 [LNIND 1995 SC 1420] : (1995) 3 SCC",
214 [LNIND 1995 SC 1420] .,
"83. P Nedumaran v State, 2003 Cr LJ 4388 (Mad).",
"84. Naurang Singh v Union Territory, Chandigarh, 1986 Cr LJ 846 (PH).",
"85. Bal Gangadhar Tilak, (1897) 22 Bom 112, 129; Jogendra Chunder Bose, (1891) 19 Cal 35 , 41.",
"86. Raghubir Singh, 1987 Cr LJ 157 : AIR 1987 SC 149 [LNIND 1986 SC 336] : (1986) 4 SCC 481",
[LNIND 1986 SC 336] .,
"87. Foster, 198.",
"88. Suresh Chandra Sanyal, (1912) 39 Cal 606 . Recovery of seditious material in the shape of",
letters is enough though they were not written by the person carrying them. Raghubir Singh v,
"State of Bihar, 1987 Cr LJ 157 : AIR 1987 SC 149 [LNIND 1986 SC 336] : (1986) 4 SCC 481",
[LNIND 1986 SC 336] .,
"89. Hardik Bharatbhai Patel v State of Gujarat, 2016 Cr LJ 225 (Guj) : 2016 (1) RCR (Criminal)",
542.,
"90. Alexander M Sullivan, (1868) 11 Cox 44, 51.",
"91. Indra Das v State of Assam, (2011) 3 SCC 380 [LNIND 2011 SC 164] : 2011 Cr LJ 1646 :",
"(2011) 1 SCC (Cr) 1150 : (2011) 4 SCR 289 [LNIND 2011 SC 164] ; State v Raneef, (2011) 1 SCC",
784 [LNIND 2011 SC 3] : AIR 2011 SC 340 [LNIND 2011 SC 3] : 2011 Cr LJ 982 .,
"92. Jogendra Chunder Bose, (1891) 19 Cal 35 , 44; Bal Gangadhar Tilak, (1897) 22 Bom 112, 137.",
"93. Alexander M Sullivan, (1886) 11 Cox 44.",
"94. Apurba Krishna Bose, (1907) 35 Cal 141 .",
95. Ibid.,
"96. Balbir Singh v State of UP, AIR 2000 SC 464 : 2000 Cr LJ 590 .",
"97. Advocate Manuel PJ v State, 2012 (4) Ker LT 708 .",
THE INDIAN PENAL CODE,
CHAPTER VI OF OFFENCES AGAINST THE STATE,
The offences against the State fall into the following groups:—,
"I. Waging, or attempting or conspiring to wage, or collecting men and ammunition to",
"wage war against the Government of India (sections 121, 121A, 122, 123).",
"II. Assaulting President, or Governor of a State with intent to compel or restrain the",
exercise of any lawful power (section 124).,
III. Sedition (section 124A).,
IV. War against a power at peace with the Government of India (section 125) or,
committing depredations on the territories of such power (sections 125–126).,
"V. Permitting or aiding or negligently suffering the escape of, or rescuing or harbouring,",
"a State prisoner (sections 128, 129, 130).",
[s 125] Waging war against any Asiatic Power in alliance with the Government,
of India.,
Whoever wages war against the Government of any Asiatic Power in alliance or at,
"peace with the 98.[Government of India] or attempts to wage such war, or abets the",
"waging of such war, shall be punished with 99.[imprisonment for life], to which fine",
"may be added, or with imprisonment of either description for a term which may",
"extend to seven years, to which fine may be added, or with fine.",
COMMENT—,
Waging war against Asiatic power.—This section restrains a person from making India,
the base of intrigues and enterprise for the restoration of deposed rulers or other like,
purposes. The fulfilment of the obligations of the State to allies and friendly Powers,
requires that the abetment of such schemes by its subjects whether by furnishing,
"supplies or otherwise should be forbidden.100. ""One Sovereign power is bound to",
respect the subjects and the rights of all other sovereign powers outside its own,
"territory"".101. This section, however, does not affect India's right as sovereign nation to",
offer political asylum to a deposed ruler.,
"98. Subs. by the A.O. 1950, for ""Queen"".",
"99. Subs. by Act 26 of 1955, section 117 and Sch., for ""transportation for life"" (w.e.f. 1 January",
1956).,
100. M & M 105.,
"101. Jameson, (1896) 2 QB 425 , 430.",
THE INDIAN PENAL CODE,
CHAPTER VI OF OFFENCES AGAINST THE STATE,
The offences against the State fall into the following groups:—,
"I. Waging, or attempting or conspiring to wage, or collecting men and ammunition to",
"wage war against the Government of India (sections 121, 121A, 122, 123).",
"II. Assaulting President, or Governor of a State with intent to compel or restrain the",
exercise of any lawful power (section 124).,
III. Sedition (section 124A).,
IV. War against a power at peace with the Government of India (section 125) or,
committing depredations on the territories of such power (sections 125–126).,
"V. Permitting or aiding or negligently suffering the escape of, or rescuing or harbouring,",
"a State prisoner (sections 128, 129, 130).",
[s 126] Committing depredation on territories of power at peace with the,
Government of India.,
"Whoever commits depredation, or makes preparations to commit depredation, on the",
"territories of any power in alliance or at peace with the 102.[Government of India], shall",
be punished with imprisonment of either description for a term which may extend to,
"seven years, and shall also be liable to fine and to forfeiture of any property used or",
"intended to be used in committing such depredation, or acquired by such depredation.",
COMMENT—,
Depredation.—The preceding section provides for waging war against any Asiatic,
"Power in alliance with the Government of India, this section prevents the commission",
of depredation or plunder on territories of States at peace with the Government of,
"India. The scope of this section is much wider than the preceding section, for it applies",
to a Power which may or may not be Asiatic.,
"102. Subs. by the A.O. 1950, for ""Queen"".",
THE INDIAN PENAL CODE,
CHAPTER VI OF OFFENCES AGAINST THE STATE,
The offences against the State fall into the following groups:—,
"I. Waging, or attempting or conspiring to wage, or collecting men and ammunition to",
"wage war against the Government of India (sections 121, 121A, 122, 123).",
"II. Assaulting President, or Governor of a State with intent to compel or restrain the",
exercise of any lawful power (section 124).,
III. Sedition (section 124A).,
IV. War against a power at peace with the Government of India (section 125) or,
committing depredations on the territories of such power (sections 125–126).,
"V. Permitting or aiding or negligently suffering the escape of, or rescuing or harbouring,",
"a State prisoner (sections 128, 129, 130).",
31[s 127] Receiving property taken by war or depredation mentioned in,
sections 125 and 126.,
Whoever receives any property knowing the same to have been taken in the,
"commission of any of the offences mentioned in sections 125 and 126, shall be",
punished with imprisonment of either description for a term which may extend to,
"seven years, and shall also be liable to fine and to forfeiture of the property so",
received.,
COMMENT—,
This section applies to those persons who knowingly receive any property obtained by,
waging war with a Power at peace with the Government of India or by committing,
depredation on its territories.,
THE INDIAN PENAL CODE,
CHAPTER VI OF OFFENCES AGAINST THE STATE,
The offences against the State fall into the following groups:—,
"I. Waging, or attempting or conspiring to wage, or collecting men and ammunition to",
"wage war against the Government of India (sections 121, 121A, 122, 123).",
"II. Assaulting President, or Governor of a State with intent to compel or restrain the",
exercise of any lawful power (section 124).,
III. Sedition (section 124A).,
IV. War against a power at peace with the Government of India (section 125) or,
committing depredations on the territories of such power (sections 125–126).,
"V. Permitting or aiding or negligently suffering the escape of, or rescuing or harbouring,",
"a State prisoner (sections 128, 129, 130).",
[s 128] Public servant voluntarily allowing prisoner of State or war to escape.,
"Whoever, being a public servant and having the custody of any State prisoner1 or",
"prisoner of war2, voluntarily allows such prisoner to escape from any place in which",
"such prisoner is confined, shall be punished with 103.[imprisonment for life], or",
"imprisonment of either description for a term which may extend to ten years, and",
shall also be liable to fine.,
COMMENT—,
Allowing escape to prisoners.—This section and section 225A provide for one kind of,
offence. In both sections the public servant who has the custody of the prisoner is,
punished if he voluntarily allows such prisoner to escape. In this section the prisoner,
must be a State prisoner or a prisoner of war; under section 225A the prisoner may be,
"an ordinary criminal. The offence under this section is thus, an aggravated form of the",
offence than under section 225A.,
1. 'State prisoner' is one whose confinement is necessary in order to preserve the,
"security of India from foreign hostility or from internal commotion, and who has been",
confined by the order of the Government of India.104.,
"2. 'Prisoner of war' is one who in war is taken in arms. Those who are not in arms, or",
"who being in arms submit and surrender themselves, are not to be slain but to be made",
prisoners. But it seems those only are prisoners of war who are taken in arms.105.,
"103. Subs. by Act 26 of 1955, section 117 and Sch., for ""transportation for life"" (w.e.f. 1 January",
1956).,
104. Beng Reg III of 1818; Bom Reg VIII of 1818; Mad Reg II of 1819.,
105. M & M 107.,
THE INDIAN PENAL CODE,
CHAPTER VI OF OFFENCES AGAINST THE STATE,
The offences against the State fall into the following groups:—,
"I. Waging, or attempting or conspiring to wage, or collecting men and ammunition to",
"wage war against the Government of India (sections 121, 121A, 122, 123).",
"II. Assaulting President, or Governor of a State with intent to compel or restrain the",
exercise of any lawful power (section 124).,
III. Sedition (section 124A).,
IV. War against a power at peace with the Government of India (section 125) or,
committing depredations on the territories of such power (sections 125–126).,
"V. Permitting or aiding or negligently suffering the escape of, or rescuing or harbouring,",
"a State prisoner (sections 128, 129, 130).",
[s 129] Public servant negligently suffering such prisoner to escape.,
"Whoever, being a public servant and having the custody of any State prisoner or",
"prisoner of war, negligently suffers such prisoner to escape from any place of",
"confinement in which such prisoner is confined, shall be punished with simple",
"imprisonment for a term which may extend to three years, and shall also be liable to",
fine.,
COMMENT—,
Negligently suffering prisoners to escape.—The offence under this section is like the,
one provided in section 128. Under it the escape of the prisoner should be owing to the,
negligence of the public servant. Section 128 punishes a public servant who voluntarily,
allows a State prisoner to escape. Section 223 punishes the escape of an ordinary,
prisoner under similar circumstances.,
THE INDIAN PENAL CODE,
CHAPTER VI OF OFFENCES AGAINST THE STATE,
The offences against the State fall into the following groups:—,
"I. Waging, or attempting or conspiring to wage, or collecting men and ammunition to",
"wage war against the Government of India (sections 121, 121A, 122, 123).",
"II. Assaulting President, or Governor of a State with intent to compel or restrain the",
exercise of any lawful power (section 124).,
III. Sedition (section 124A).,
IV. War against a power at peace with the Government of India (section 125) or,
committing depredations on the territories of such power (sections 125–126).,
"V. Permitting or aiding or negligently suffering the escape of, or rescuing or harbouring,",
"a State prisoner (sections 128, 129, 130).",
"[s 130] Aiding escape of, rescuing or harbouring such prisoner.",
Whoever knowingly aids or assists any State prisoner or prisoner of war in escaping,
"from lawful custody, or rescues or attempts to rescue any such prisoner, or harbours",
"or conceals any such prisoner who has escaped from lawful custody, or offers or",
"attempts to offer any resistance to the recapture of such prisoner, shall be punished",
"with 106.[imprisonment for life], or with imprisonment of either description for a term",
"which may extend to ten years, and shall also be liable to fine.",
"Explanation.—A State prisoner or prisoner of war, who is permitted to be at large on his",
"parole within certain limits in 107.[India], is said to escape from lawful custody if he",
goes beyond the limits within which he is allowed to be at large.,
COMMENT—,
"Aiding escape, harbouring escapees.—This section uses words more extensive than",
those in the two preceding ones which contemplate an escape only from some prison,
or actual place of custody. Again in the last two sections the offender is a public,
servant; under this section he may be any person. The scope of this section is much,
narrower than section 129. This section requires that the rescue or assistance be given,
"""knowingly"".",
"106. Subs. by Act 26 of 1955, section 117 and Sch., for ""transportation for life"" (w.e.f.",
1January1956).,
"107. The words ""British India"" have successively been subs. by the A.O. 1948, the A.O. 1950 and",
"Act 3 of 1951, section 3 and Sch. (w.e.f. 1 April 1951), to read as above.",
THE INDIAN PENAL CODE,
"CHAPTER VII OF OFFENCES RELATING TO THE ARMY, NAVY AND AIR",
FORCE,
"[s 131] Abetting mutiny, or attempting to seduce a soldier, sailor or airman",
from his duty.,
"Whoever abets the committing of mutiny by an officer, soldier, 1.[sailor or airman], in",
"the Army, 2.[Navy or Air Force] of the 3.[Government of India] or attempts to seduce",
"any such officer, soldier, 4.[sailor or airman] from his allegiance or his duty, shall be",
"punished with 5.[imprisonment for life], or with imprisonment of either description for",
"a term which may extend to ten years, and shall also be liable to fine.",
"6.[Explanation.—In this section the words ""officer"", 7.[""soldier"", 8.[""sailor""] and ""airman""]",
"include any person subject to 9.[the Army Act, 10.[the Army Act, 195011.], 12.[the Naval",
"Discipline Act, 13.[***] the Indian Navy (Discipline) Act, 1934 (34 of 1934)14.], 15.[the",
"Air Force Act or 16.[the Air Force Act, 1950]], as the case may be].]",
COMMENT—,
"Aiding mutiny, seduction from duty.—The first part of this section relates to the offence",
of abetting mutiny. The offence contemplated is an abetment which is not followed by,
"actual mutiny, or which, supposing actual mutiny follows, is not the cause of that",
mutiny.,
"The offence of 'mutiny' consists in extreme insubordination, as if a soldier resists by",
"force, or if a number of soldiers rise against or oppose their military superiors, such",
acts proceeding from alleged or pretended grievances of a military nature. Acts of a,
riotous nature directed against the government or civil authorities rather than against,
military superiors seem also to constitute mutiny.17.,
"1. Subs. by Act 10 of 1927, section 2 and Sch. I, for ""or sailor""",
"2. Subs. by Act 10 of 1927, section 2 and Sch. I, for ""or Navy"".",
"3. Subs. by the A.O. 1950, for ""Queen"".",
"4. Subs. by Act 10 of 1927, section 2 and Sch. I, for ""or sailor"".",
"5. Subs. by Act 26 of 1955, section 117 and Sch., for ""transportation for life"" (w.e.f. 1-1-1956).",
"6. Ins. by Act 27 of 1870, section 6.",
"7. Subs. by Act 10 of 1927, section 2 and Sch. I, for ""and soldier"".",
"8. Ins. by Act 35 of 1934, section 2 and Sch.",
"9. Subs. by Act 10 of 1927, section 2 and Sch. I, for ""Articles of War for the better government",
"of Her Majesty's Army, or to the Articles of War contained in Act No. 5 of 1869"".",
"10. Subs. by Act 3 of 1951, section 3 and Sch., for ""the Indian Army Act, 1911"" (w.e.f. 1-4-1951).",
"11. Now see the Navy Act, 1957 (62 of 1957).",
"12. Ins. by Act 35 of 1934, section 2 and Sch.",
"13. The words ""or that Act as modified by"" omitted by the A.O. 1950.",
"14. Now see the Navy Act, 1957 (62 of 1957).",
"15. Subs. by Act 14 of 1932, section 130 and Sch., for ""or the Air Force Act"".",
"16. Subs. by Act 3 of 1951, section 3 and Sch., for ""the Indian Air Force Act, 1932"" (w.e.f. 1-4-",
1951).,
17. M&M 112.,
THE INDIAN PENAL CODE,
"CHAPTER VII OF OFFENCES RELATING TO THE ARMY, NAVY AND AIR",
FORCE,
[s 132] Abetment of mutiny if mutiny is committed in consequence thereof.,
"Whoever abets the committing of mutiny by an officer, soldier, 18.[sailor or airman] in",
"the Army, 19.[Navy or Air Force] of the 20.[Government of India], shall, if mutiny be",
"committed in consequence of that abetment, be punished with death or with 21.",
"[imprisonment for life], or imprisonment of either description for a term which may",
"extend to ten years, and shall also be liable to fine.",
"18. Subs. by Act 10 of 1927, section 2 and Sch. I, for ""or sailor"".",
"19. Subs. by Act 10 of 1927, section 2 and Sch. I, for ""or Navy"".",
"20. Subs. by the A.O. 1950, for ""Queen"".",
"21. Subs. by Act 26 of 1955, section 117 and Sch., for ""transportation for life"" (w.e.f. 1-1-1956).",
THE INDIAN PENAL CODE,
"CHAPTER VII OF OFFENCES RELATING TO THE ARMY, NAVY AND AIR",
FORCE,
"[s 133] Abetment of assault by soldier, sailor or airman on his superior officer,",
when in execution of his office.,
"Whoever abets an assault by an officer, soldier, 22.[sailor or airman], in the Army, 23.",
"[Navy or Air Force] of the 24.[Government of India], on any superior officer being in the",
"execution of his office, shall be punished with imprisonment of either description for a",
"term which may extend to three years, and shall also be liable to fine.",
COMMENT—,
"Abetment of assault, etc.—This section punishes the abetment of an assault which is",
not committed. The next section punishes similar abetment where the offence is,
committed.,
"22. Subs. by Act 10 of 1927, section 2 and Sch. I, for ""or sailor"".",
"23. Subs. by Act 10 of 1927, section 2 and Sch. I, for ""or Navy"".",
"24. Subs. by the A.O. 1950, for ""Queen"".",
THE INDIAN PENAL CODE,
"CHAPTER VII OF OFFENCES RELATING TO THE ARMY, NAVY AND AIR",
FORCE,
"[s 134] Abetment of such assault, if the assault is committed.",
"Whoever abets an assault by an officer, soldier, 25.[sailor or airman], in the Army, 26.",
"[Navy or Air Force] of the 27.[Government of India], on any superior officer being in the",
"execution of his office, shall, if such assault be committed in consequence of that",
abetment be punished with imprisonment of either description for a term which may,
"extend to seven years, and shall also be liable to fine.",
COMMENT—,
Where abetted assault committed.—This section punishes the abetment of an assault,
when such assault is committed in consequence of that abetment. It stands in the,
same relation to section 133 as section 132 does to section 131.,
"25. Subs. by Act 10 of 1927, section 2 and Sch. I, for ""or sailor"".",
"26. Subs. by Act 10 of 1927, section 2 and Sch. I, for ""or Navy"".",
"27. Subs. by the A.O. 1950, for ""Queen"".",
THE INDIAN PENAL CODE,
"CHAPTER VII OF OFFENCES RELATING TO THE ARMY, NAVY AND AIR",
FORCE,
"[s 135] Abetment of desertion of soldier, sailor or airman.",
"Whoever abets the desertion of any officer, soldier, 28.[sailor or airman], in the Army,",
"29.[Navy or Air Force] of the 30.[Government of India], shall be punished with",
"imprisonment of either description for a term which may extend to two years, or with",
"fine, or with both.",
COMMENT—,
Abetment of desertion.—The desertion abetted under this section need not take place.,
Mere abetment is made punishable.,
"28. Subs. by Act 10 of 1927, section 2 and Sch. I, for ""or sailor"".",
"29. Subs. by Act 10 of 1927, section 2 and Sch. I, for ""or Navy"".",
"30. Subs. by the A.O. 1950, for ""Queen"".",
THE INDIAN PENAL CODE,
"CHAPTER VII OF OFFENCES RELATING TO THE ARMY, NAVY AND AIR",
FORCE,
[s 136] Harbouring deserter.,
"Whoever, except as hereinafter expected, knowing or having reason to believe that an",
"officer, soldier, 31.[sailor or airman], in the Army, 32.[Navy or Air Force] of the 33.",
"[Government of India], has deserted, harbours such officer, soldier, 34.[sailor or",
"airman], shall be punished with imprisonment of either description for a term which",
"may extend to two years, or with fine, or with both.",
Exception.—This provision does not extend to the case in which the harbour is given,
by a wife to her husband.,
COMMENT—,
Harbouring deserter.—A person harbouring a deserter is an 'accessory after the fact'.,
The gist of the offence is concealment of a deserter to prevent his apprehension.,
Exception is made only in the case of a wife.,
The word 'harbour' is defined in section 52A.,
"31. Subs. by Act 10 of 1927, section 2 and Sch. I, for ""or sailor"".",
"32. Subs. by Act 10 of 1927, section 2 and Sch. I, for ""or Navy"".",
"33. Subs. by the A.O. 1950, for ""Queen"".",
"34. Subs. by Act 10 of 1927, section 2 and Sch. I, for ""or sailor"".",
THE INDIAN PENAL CODE,
"CHAPTER VII OF OFFENCES RELATING TO THE ARMY, NAVY AND AIR",
FORCE,
"[s 137] Deserter concealed on board, merchant vessel through negligence of",
master.,
"The master or person in charge of a merchant vessel, on board of which any deserter",
"from the Army, 35.[Navy or Air Force] of the 36.[Government of India] is concealed,",
"shall, though ignorant of such concealment, be liable to a penalty not exceeding five",
"hundred rupees, if he might have known of such concealment but for some neglect of",
"his duty as such master or person in charge, or but for some want of discipline on",
board of the vessel.,
COMMENT—,
Concealment on board.—This section punishes the master or person in charge of a,
merchant ship on board of which a deserter has concealed himself. The master is,
liable even though he is ignorant of such concealment. But some negligence or laxity in,
the maintenance of discipline on the part of the master has to be made out.,
"35. Subs. by Act 10 of 1927, section 2 and Sch. I, for ""or Navy"".",
"36. Subs. by the A.O. 1950, for ""Queen"".",
THE INDIAN PENAL CODE,
"CHAPTER VII OF OFFENCES RELATING TO THE ARMY, NAVY AND AIR",
FORCE,
"[s 138] Abetment of act of insubordination by soldier, sailor or airman.",
"Whoever abets what he knows to be an act of insubordination by an officer, soldier, 37.",
"[sailor or airman], in the Army, 38.[Navy or Air Force] of the 39.[Government of India],",
"shall, if such act of insubordination be committed in consequence of that abetment,",
be punished with imprisonment of either description for a term which may extend to,
"six months, or with fine, or with both.",
COMMENT—,
Abetment of insubordination.—In this section it is expressed as part of the definition of,
"the offence that the abettor knows the quality of the act abetted, that is, he knows it to",
be an act of insubordination.,
"37. Subs. by Act 10 of 1927, section 2 and Sch. I, for ""or sailor"".",
"38. Subs. by Act 10 of 1927, section 2 and Sch. I, for ""or Navy"".",
"39. Subs. by the A.O. 1950, for ""Queen"".",
THE INDIAN PENAL CODE,
"CHAPTER VII OF OFFENCES RELATING TO THE ARMY, NAVY AND AIR",
FORCE,
[s 138A] [Repealed],
[Application of foregoing sections to the Indian Marine Service.] Repealed by s. 2 and,
Sch. of Act XXXV of 1934.,
THE INDIAN PENAL CODE,
"CHAPTER VII OF OFFENCES RELATING TO THE ARMY, NAVY AND AIR",
FORCE,
[s 139] Persons subject to certain Acts.,
"No person subject to 40.[the Army Act, 41.[the Army Act, 1950, the Naval Discipline",
"Act, 42.[43.[***] the Indian Navy (Discipline) Act, 193444.], 45.[the Air Force Act or 46.",
"[the Air Force Act, 1950]]], is subject to punishment under this Code for any of the",
offences defined in this Chapter.,
COMMENT—,
Persons subject to these special Acts are punishable under those Acts and not under,
the Penal Code.,
"40. Subs. by Act 10 of 1927, section 2 and Sch. I, for ""any Article of War for the Army or Navy",
"ofthe Queen, or for any part of such Army or Navy"".",
"41. Subs. by Act 3 of 1951, section 3 and Sch., for ""the Indian Army Act, 1911"" (w.e.f. 1-4-1951).",
"42. Ins. by Act 35 of 1934, section 2 and Sch.",
"43. The words ""or that Act as modified"" omitted by the A.O. 1950.",
"44. Now see the Navy Act, 1957 (62 of 1957).",
"45. Subs. by Act 14 of 1932, section 130 and Sch., for ""or the Air Force Act"".",
"46. Subs. by Act 3 of 1951, section 3 and Sch., for ""the Indian Air Force Act, 1932"" (w.e.f. 1-4-",
1951).,
THE INDIAN PENAL CODE,
"CHAPTER VII OF OFFENCES RELATING TO THE ARMY, NAVY AND AIR",
FORCE,
"[s 140] Wearing garb or carrying token used by soldier, sailor or airman.",
"Whoever, not being a soldier, 47.[sailor or airman], in the Military, 48.[Naval or Air]",
"service of the 49.[Government of India], wears any garb or carries any token",
"resembling any garb or token used by such a soldier, 50.[sailor or airman] with the",
"intention that it may be believed that he is such a soldier, 51.[sailor or airman], shall be",
punished with imprisonment of either description for a term which may extend to,
"three months, or with fine which may extend to five hundred rupees, or with both.",
COMMENT—,
Wearing garb or carrying token.—The gist of the offence herein made penal is the,
intention of the accused wearing the dress of a soldier for the purpose of inducing,
others to believe that he is in service at the present time. Merely wearing a soldier's,
garb without any specific intention is no offence. Cast-off uniforms of soldiers are worn,
by many men. Actors put on different military uniforms.,
"47. Subs. by Act 10 of 1927, section 2 and Sch. I, for ""or sailor"".",
"48. Subs. by Act 10 of 1927, section 2 and Sch. I, for ""or Navy"".",
"49. Subs. by the A.O. 1950, for ""Queen"".",
"50. Subs. by Act 10 of 1927, section 2 and Sch. I, for ""or sailor"".",
"51. Subs. by Act 10 of 1927, section 2 and Sch. I, for ""or sailor"".",
THE INDIAN PENAL CODE,
CHAPTER VIII OF OFFENCES AGAINST THE PUBLIC TRANQUILLITY,
The offences in this chapter may be classified in the following four groups:—,
I. Unlawful assembly.,
"(1) Being a member of an unlawful assembly (sections 141, 142, 143).",
(2) Joining an unlawful assembly armed with deadly weapons (section 144).,
(3) Joining or continuing in an unlawful assembly knowing it has been commanded,
to disperse (section 145).,
(4) Hiring of persons to join an unlawful assembly (section 150).,
(5) Harbouring persons hired for an unlawful assembly (section 157).,
(6) Being hired to take part in an unlawful assembly (section 158).,
"II. Rioting (sections 146, 147).",
(1) Rioting with deadly weapon (section 148).,
(2) Assaulting or obstructing a public servant in the suppression of a riot (section,
152).,
(3) Wantonly giving provocation with intent to cause riot (section 153).,
(4) Liability of the owner or occupier of land on which an unlawful assembly is held,
or a riot is committed (section 154).,
(5) Liability of the person for whose benefit a riot is committed (section 155).,
(6) Liability of the agent of owner or occupier for whose benefit a riot is committed,
(section 156).,
III. Promoting enmity between different classes (section 153A).,
"IV. Affray (sections 159, 160).",
[s 141] Unlawful assembly.,
"An assembly of five or more1 persons is designated an ""unlawful assembly"", if the",
common object2 of the persons composing that assembly is—,
"First.—To overawe by criminal force, or show of criminal force, 1.[the Central or any",
"State Government or Parliament or the Legislature of any State], or any public servant",
in the exercise of the lawful power of such public servant; or,
"Second.—To resist the execution of any law, or of any legal process; or Third.—To",
"commit any mischief or criminal trespass, or other offence; or",
"Fourth.—By means of criminal force, or show of criminal force, to any person, to take",
"or obtain possession of any property, or to deprive any person of the enjoyment of a",
"right of way, or of the use of water or other incorporeal right of which he is in",
"possession or enjoyment, or to enforce any right or supposed right; or",
"Fifth.—By means of criminal force, or show of criminal force, to compel any person to",
"do what he is not legally bound to do, or to omit to do what he is legally entitled to do.",
"Explanation.—An assembly which was not unlawful when it assembled, may",
subsequently become an unlawful assembly.,
"1. Subs. by the A.O. 1950, for The Central or any Provincial Government or Legislature.",
THE INDIAN PENAL CODE,
CHAPTER VIII OF OFFENCES AGAINST THE PUBLIC TRANQUILLITY,
The offences in this chapter may be classified in the following four groups:—,
I. Unlawful assembly.,
"(1) Being a member of an unlawful assembly (sections 141, 142, 143).",
(2) Joining an unlawful assembly armed with deadly weapons (section 144).,
(3) Joining or continuing in an unlawful assembly knowing it has been commanded,
to disperse (section 145).,
(4) Hiring of persons to join an unlawful assembly (section 150).,
(5) Harbouring persons hired for an unlawful assembly (section 157).,
(6) Being hired to take part in an unlawful assembly (section 158).,
"II. Rioting (sections 146, 147).",
(1) Rioting with deadly weapon (section 148).,
(2) Assaulting or obstructing a public servant in the suppression of a riot (section,
152).,
(3) Wantonly giving provocation with intent to cause riot (section 153).,
(4) Liability of the owner or occupier of land on which an unlawful assembly is held,
or a riot is committed (section 154).,
(5) Liability of the person for whose benefit a riot is committed (section 155).,
(6) Liability of the agent of owner or occupier for whose benefit a riot is committed,
(section 156).,
III. Promoting enmity between different classes (section 153A).,
"IV. Affray (sections 159, 160).",
[s 142] Being member of unlawful assembly.,
"Whoever, being aware of facts which render any assembly an unlawful assembly,",
"intentionally joins that assembly, or continues in it, is said to be a member of an",
unlawful assembly.,
THE INDIAN PENAL CODE,
CHAPTER VIII OF OFFENCES AGAINST THE PUBLIC TRANQUILLITY,
The offences in this chapter may be classified in the following four groups:—,
I. Unlawful assembly.,
"(1) Being a member of an unlawful assembly (sections 141, 142, 143).",
(2) Joining an unlawful assembly armed with deadly weapons (section 144).,
(3) Joining or continuing in an unlawful assembly knowing it has been commanded,
to disperse (section 145).,
(4) Hiring of persons to join an unlawful assembly (section 150).,
(5) Harbouring persons hired for an unlawful assembly (section 157).,
(6) Being hired to take part in an unlawful assembly (section 158).,
"II. Rioting (sections 146, 147).",
(1) Rioting with deadly weapon (section 148).,
(2) Assaulting or obstructing a public servant in the suppression of a riot (section,
152).,
(3) Wantonly giving provocation with intent to cause riot (section 153).,
(4) Liability of the owner or occupier of land on which an unlawful assembly is held,
or a riot is committed (section 154).,
(5) Liability of the person for whose benefit a riot is committed (section 155).,
(6) Liability of the agent of owner or occupier for whose benefit a riot is committed,
(section 156).,
III. Promoting enmity between different classes (section 153A).,
"IV. Affray (sections 159, 160).",
[s 143] Punishment.,
"Whoever is a member of an unlawful assembly, shall be punished with imprisonment",
"of either description for a term which may extend to six months, or with fine, or with",
both.,
COMMENT—,
Unlawful assembly.—An 'assembly' is a company of persons assembled together in a,
"place, usually for a common purpose. Court is concerned with an 'unlawful assembly'.",
"Wherever five or more persons commit a crime with a common object and intent, then",
"each of them would be liable for commission of such offence, in terms of sections 141",
"and 149, Indian Penal Code, 1860 (IPC, 1860). It is not possible to define the",
constituents or dimensions of an offence under section 149 simpliciter with regard to,
dictionary meaning of the words 'unlawful assembly' or 'assembly'.2. An assembly of,
five or more persons having as its common object any of the five objects enumerated,
under section 1 41 of IPC is deemed to be an unlawful assembly. Membership of an,
"unlawful assembly is itself an offence punishable under section.143, whereas other",
"species of the said offence are dealt with under section 143–145 of IPC. Similarly,",
sections 146–148 of IPC deals with the offence of rioting which is defined to be use of,
force or violence by any member thereof. Section 149 makes every member of an,
unlawful assembly liable for offence that may be committed by any member of the,
unlawful assembly in prosecution of the common object of that assembly or for,
commission of any offence that the members of the assembly knew to be likely to be,
committed in prosecution of the common object of the assembly.3. To bring a case,
"within section 149 of IPC some essential features must be present. First, there must be",
an existence of an unlawful assembly within the meaning of section 141 of IPC. This is,
a mixed question of fact and law.4.,
The underlying principle of section 141 is that law discourages tumultuous assemblage,
of men to preserve the public peace. Section 141 defines what an 'unlawful assembly',
is. Section 142 gives the connotations of 'a member of an unlawful assembly'. Section,
143 punishes tumultuous assemblies as they endanger public peace. It does not,
require that the purpose of the unlawful assembly should have been fulfilled.,
The essence of an offence under this section is the combination of five or more,
"persons, united in the purpose of committing a criminal offence, and the consensus of",
purpose is itself an offence distinct from the criminal offence which these persons,
"agree and intend to commit.5. Unlike the Indian law contained in section 141, IPC, 1860,",
an unlawful assembly at common law need to have only three or more persons who,
must assemble together for the common purpose of committing an offence involving,
"use of violence, or for achieving a lawful or unlawful object in such a manner so as to",
lead to a reasonable apprehension of a breach of peace as a direct result of their,
"conduct.6. Thus, under section 141, IPC, especially under sub-section (3) thereof, use of",
violence or likelihood of breach of the peace is not at all a sine qua non for an offence,
"of unlawful assembly but this is so under the common law. So under the common law,",
"even if the purpose of the assembly is unlawful, the offence of being an unlawful",
assembly would not be committed if there is no likelihood of breach of the peace and,
this would be so even if the unlawful common purpose is carried out.,
[s 143.1] Ingredients.—,
An 'unlawful assembly' is an assembly of five or more persons if their common object,
is—,
1. to overawe by criminal force,
"(a) the Central Government, or",
"(b) the State Government, or",
"(c) the Legislature, or",
(d) any public servant in the exercise of lawful power;,
2. to resist the execution of law or legal process;,
"3. to commit mischief, criminal trespass, or any other offence;",
4. by criminal force—,
"(a) to take or obtain possession of any property, or",
"(b) to deprive any person of any incorporeal right, or",
(c) to enforce any right or supposed right;,
5. by criminal force to compel any person—,
"(a) to do what he is not legally bound to do, or",
(b) to omit what he is legally entitled to do.,
1. 'Five or more'.— The Constitution Bench in Mohan Singh's case7. held that it is only,
"where five or more persons constituted an assembly that an unlawful assembly is born,",
"provided, of course, the other requirements of the said section as to the common",
"object of the persons composing that assembly are satisfied. In other words, it is an",
essential condition of an unlawful assembly that its membership must be five or more.,
The Supreme Court has endorsed the view that the number of injuries caused and the,
"number of persons who were inflicted with those injuries, (in this case, three persons",
"were attacked and they sustained 13, 12 and 7 injuries respectively) can give a clue to",
the fact that more than three persons must necessarily have participated in the,
attack.8.,
[s 143.2] Effect of acquittal of some accused:,
"In Mohan Singh v State of Punjab,9. the Supreme Court considered the question of",
acquittal of two of the accused charged for the offence under section 302 read with,
"section 149, on the conviction of the remaining three accused. If five or more persons",
are named in the charge as forming an unlawful assembly and the evidence adduced,
by the prosecution proves that charge against all of them that is a very clear case,
"where section 149 could be invoked. ""It is however not necessary that five or more",
persons must be convicted before a charge under section 149 could be successfully,
brought home to any members of the unlawful assembly. It may be that less than five,
"persons may be charged and convicted under section 302 read with section 149, if the",
"charge is that persons before the court along with others named, constituted an",
unlawful assembly. Other persons so named may not be available for trial along with,
"their companions for the reason that they have absconded. In such a case, the fact that",
less than five persons are before the court does not make section 149 inapplicable.,
"Therefore, in order to bring home a charge under section 149, it is not necessary that",
"five or more persons must necessarily be brought before the court and convicted …"" In",
"view of the decision of the Constitution Bench in Mohan Singh's case,10. even after",
"acquittal of the two accused from all the charges levelled against them, if there is any",
"material that they were members of the unlawful assembly, the conviction under",
section 302 can be based with the aid of section 149.11.,
Where two of the six accused persons were acquitted without any finding that some,
"other known or unknown persons also were involved in the assault, the remaining four",
accused persons could not be said to be members of an unlawful assembly.12. Where,
"a group of persons, differently armed, assaulted a man with the common object of",
"killing him and all the assailants accused except one were acquitted, it was held that",
the remaining sole accused could not be convicted and sentenced under section 302,
with the aid of section 149. The court cannot carve out a new case.13. If out of an,
"unlawful assembly consisting of seven named persons four are acquitted, the other",
"three cannot be convicted of rioting as members of an unlawful assembly.14. They may,",
"however, be convicted of the principal offence with the aid of section 34, IPC, 1860.15.",
"Where presence of eight persons in the course of assault was established, four of them",
were given benefit of doubt but there was no finding anywhere to the effect that only,
"four persons had taken part in the assault, conviction of the remaining four on the",
charge of forming unlawful assembly was not illegal.16.,
2. 'Common object'.— The common object of an unlawful assembly depends firstly on,
whether such object can be classified as one of those described in section 141;,
"secondly, such common object need not be the product of prior concert but may form",
"on spur of the moment, finally, nature of such common object is a question of fact to",
"be determined by considering the nature of arms, nature of assembly, behaviour of",
"members, etc.17. Mere presence in an assembly does not make a person a member of",
an unlawful assembly unless it is shown that he had done something or omitted to do,
something which would make him a member of the unlawful assembly or unless the,
"case falls under section 142.18. Thus, merely because some persons assembled, all of",
them cannot be condemned 'ipso facto' as being members of that unlawful,
assembly.19. At the same time it cannot be laid down as a general proposition of law,
"that unless an overt act is proved against a person, who is alleged to be a member of",
"unlawful assembly, it cannot be said that he is a member of an assembly. The only",
thing required is that he should have understood that the assembly was unlawful and,
was likely to commit any of the acts which fall within the purview of section 141.20.,
Further the prosecution has to prove that the commission of the offence was by any,
member of an unlawful assembly and such offence must have been committed in,
prosecution of the common object of the unlawful assembly or such that the members,
of the assembly knew that it was likely to be committed.21. The word 'object' means the,
"purpose or design and, in order to make it 'common', it must be shared by all. In other",
"words, the object should be common to the persons, who compose the assembly, that",
"is to say, they should all be aware of it and concur in it. A common object may be",
"formed by express agreement after mutual consultation, but that is by no means",
necessary. It may be formed at any stage by all or a few members of the assembly and,
"the other members may just join and adopt it. Once formed, it need not continue to be",
the same. It may be modified or altered or abandoned at any stage.22.,
"Section 142 postulates that whoever, being aware of facts which render any assembly",
"an unlawful one, intentionally joins the same would be a member thereof. Whether an",
"assembly is unlawful one or not, would depend on various factors, the principal",
amongst them being a common object formed by the members thereof to commit an,
offence specified in one or the other clauses contained in section 141.23. In a free fight,
between two groups resulting in death of one person and injuries to several others on,
"both the sides, it was held that the formation of an unlawful assembly was not",
impossible but the common object of such an assembly cannot be determined on the,
basis of serious injury by one of them.24. The accused along with about six–eight,
others forcibly entered into the office of a union leader and assaulted him but the victim,
did not receive any serious injury inside the union office and managed to escape. Later,
on in the open space some members of the crowd surrounded and attacked him and,
dealt fatal blows. It was held that the accused who entered the union office did not,
share the common object of committing murder of the deceased. They were convicted,
under sections 326/149.25. Where the accused forming an unlawful assembly,
assaulted the deceased but the injury caused by only one accused proved to be fatal,
"and the injuries caused by the others were found to be simple, it was held that the",
common object of the unlawful assembly was only to cause grievous hurt and only the,
accused who caused fatal injury was liable to be convicted for murder and others,
under section 326/149.26.,
The Supreme Court observed on the facts of a case that given the circumstances in,
which the assembly came together and given that all parties were aware that among,
"them, certain members carried weapons like guns and spear, even if it was held that",
"common object of assembly was not to cause death, it would not be an unreasonable",
inference that all accused knew that the offence of culpable homicide was likely to be,
committed in prosecution of such an armed assault on another group which was not,
"prepared to withstand such an attack, bringing about application of second portion of",
"section 149. Therefore, it was held, that any of the accused found to have participated",
in the assault should be held guilty under section 141 and 149.27.,
[s 143.3] Determination of Common object:,
Determination of the common object of an unlawful assembly or the determination of,
the question whether a member of the unlawful assembly knew that the offence that,
was committed was likely to be committed is essentially a question of fact that has to,
"be made keeping in view the nature of the assembly, the arms carried by the members",
and the behaviour of the members at or near the scene and a host of similar or,
connected facts and circumstances that cannot be entrapped by any attempt at an,
"exhaustive enumeration.28. It is difficult indeed, though not impossible, to collect direct",
evidence of such knowledge. An inference may be drawn from circumstances such as,
"the background of the incident, the motive, the nature of the assembly, the nature of the",
"arms carried by the members of the assembly, their common object and the behaviour",
"of the members soon before, at or after the actual commission of the crime.29.",
[s 143.4] Second clause—Resisting Law or Legal Process.—,
"Resistance to some law, or legal process, connotes some overt act, and mere words,",
"when there is no intention of carrying them into effect, are not sufficient to prove an",
"intention to resist.30. When an order is lawfully made under the provisions of a statute,",
"that order is law, and resistance to the execution of that law is an offence.31.",
Under this clause the act resisted must be a legal act. Where a number of persons,
"resisted an attempt to search a house which was being made by officers, who had not",
"the written order investing them with the power to do so, it was held that the persons",
resisting the attempted search were not guilty of this offence.32. Assembling together,
for the common object of rescuing a friend from unlawful police detention has been,
held by the Supreme Court as not constituting an unlawful assembly.33.,
"[s 143.5] Third clause.—Committing Criminal Trespass, Mischief, other",
offence.—,
"This clause specifies only two offences, viz., mischief and criminal trespass, but the",
words 'or other offence' seem to denote that all offences are included though only two,
"are enumerated in a haphazard way. In Manga @ Man Singh v State of Uttarakhand, the",
Supreme Court while considering the application of principle of 'ejusdem generis' to,
"section 141 'third' clause, observed that:",
We fail to appreciate as to how simply because the offences mischief or criminal trespass,
"are used preceding the expression ""other offence"" in Section 141 'third', it should be taken",
that such offence would only relate to a minor offence of mischief or trespass and that the,
"expression ""other offence"" should be restricted only to that extent. As pointed out by us",
"above, the offence of mischief and trespass could also be as grave as that of an offence of",
"murder, for which the punishment of life imprisonment can be imposed as provided for",
"under Sections 438, 449, 450 etc. Therefore, we straight away hold that the argument of",
learned senior counsel for the Appellants to import the principle of 'ejusdem generis' to,
"Section 141 'third', cannot be accepted.34.",
[s 143.6] Suleman Bakery Case:,
It is a case related to the communal riots of Mumbai in early 1993. Government,
imposed curfew and the Special Operation Squad (SOS) was called to control the,
"communal riots on information of stone pelting, throwing of glass bottles, acid bulbs",
and firing from the terrace of Suleman Bakery. It was argued that at any rate SOS was,
"an unlawful assembly on account of the third clause of section 141 of IPC, 1860, and",
"hence, all the discharged accused persons were members of the unlawful assembly",
and had to be at least charged and inquired into by the courts below. It was argued that,
the assembly of the police at least till the time they broke open the door was a lawful,
"move, as it was their duty but they should not have broken open the door and",
trespassed the Suleman bakery; and all those who entered Suleman bakery formulated,
"an unlawful assembly as they illegally trespassed into the Suleman bakery. Since A-1,",
"Shri Tyagi, had ordered them to break open the doors and he was a part of that unlawful",
assembly who had the common object. The Supreme Court held that they were all the,
members of the SOS and had the duty to quell the riots. They were not doing anything,
illegal in coming out and trying to control the riots. Court rejected the argument by,
holding that a trespass becomes a criminal trespass if it is with an intention to annoy,
or to do something illegal which is not the case here. There was no question of the so-,
called entry amounting to criminal trespass.35.,
[s 143.7] Fourth clause—Application of Criminal Force.—,
The act falling within the purview of this clause is made punishable owing to the,
injurious consequences which it is likely to cause to the public peace. This clause does,
not take away the right of private defence of property. It does not affect clause 2 of,
"section 105, which allows a person to recover the property carried away by theft. It is",
meant to prevent the resort to force in vindication of supposed rights. It makes a,
distinction between an admitted claim or an ascertained right and a disputed claim.36.,
Where five or more persons assemble for maintaining by force or show of force a right,
"which they bona fide believe they possess, and not for enforcing by such force or show",
"of force a right or supposed right of theirs, they do not constitute an unlawful",
assembly.37. An assembly of five or more persons cannot be designated as an unlawful,
assembly under this section if its object is to defend property by the use of force within,
the limits prescribed by law.38. But when a body of men are determined to vindicate,
"their rights, or supposed rights, by unlawful force, and when they engage in a fight with",
"men who, on the other hand, are equally determined to vindicate, by unlawful force,",
"their rights or supposed rights, no question of self-defence arises. Neither side is trying",
"to protect itself, but each side is trying to get the better of the other.39.",
[s 143.8] Fifth clause—Compelling persons to act or omission.—,
"This clause is very comprehensive and applies to all the rights a man can possess,",
whether they concern the enjoyment of property or not. There is no reference to 'any,
right or supposed right' as in the preceding clause.,
[s 143.9] Explanation.—,
An assembly which is lawful in its inception may become unlawful by the subsequent,
act of its members.40. It may turn unlawful all of a sudden and without previous,
"concert among its members.41. But illegal acts of one or two members, not acquiesced",
"in by the others, do not change the character of the assembly.42. The law on the point",
as stated above is approved by the Supreme Court in Moti Das.43.,
[s 143.10] Being member of unlawful assembly.—,
Section 142 shows that it is sufficient for the offence of riot to be proved against an,
individual that the individual should remain in an unlawful assembly as soon as he is,
"aware that the assembly is unlawful. The word ""continues"" in the section means",
"physical presence as a member of the unlawful assembly, that is, to be physically",
"present in the crowd.44. This, however, should not be interpreted to mean that mere",
presence as a curious onlooker or bystander at the scene of the unlawful assembly,
"without sharing its common object would make a person liable under section 142, IPC,",
"1860, for being a member of an unlawful assembly.45. Thus common object cannot be",
attributed to a person from his mere presence at the scene of the occurrence. There,
must be some other direct or circumstantial evidence to justify that inference.46.,
For being a member of unlawful assembly it is not necessary that a person must,
commit some overt act towards the commission of the crime. The test is whether he,
knows of its common object and continues to keep its company due to his own free,
"will.47. Thus, where a large procession of Kannadigas, taken out to voice protest",
"against Maharashtrians, turned violent, started pelting stones and attacking police",
officers; the procession turned into an unlawful assembly the moment it developed the,
common object of causing damage to property and injuries to police officers.,
"Thereafter, every person who continued as a member of the assembly became liable",
"for the offence committed by the processionalists by virtue of section 149 of IPC,",
1860.48. If some unidentified members of an unlawful assembly behaved in an unruly,
"manner, the other members in the procession cannot be held guilty of the offence by",
"foisting vicarious liability, merely because they were in the procession.49.",
[s 143.11] CASES.—Enforcement of right by use of criminal force.—Dispute,
regarding possession of land.—,
Where there was a dispute of long standing between the accused and certain other,
"parties regarding possession of certain land, and the accused went to sow the land",
"with indigo, accompanied by a body of men armed with sticks who kept off the",
"opposite party by brandishing their weapons while the land was sowed, it was held that",
"they were guilty of this offence.50. Where the accused, who were in possession of the",
"disputed land, went upon it in a large body armed with sticks, prepared in anticipation",
"of a fight, and were reaping the paddy grown by them, when the complainant's party",
"came up and attempted to cut the same, whereupon a fight ensued and one man was",
"seriously wounded and died subsequently, it was held that the common object was not",
to enforce a right but to maintain undisturbed the actual enjoyment of a right and that,
the assembly was not therefore unlawful.51.,
"2. State of Haryana v Shakuntla, (2012) 5 SCC 171 [LNIND 2012 SC 1259] : JT 2012 (4) SC 287 :",
AIR 2012 (SCW) 2952 : 2012 Cr LJ 2850 .,
"3. Bharat Soni v State of Chhattisgarh, 2013 Cr LJ 486 (SC) : 2013 (1) Mad LJ (Cr) 94 : 2013 (1)",
Crimes 66 .,
"4. Gurmail Singh v State of Pumjab, 2013 (4) SCC 228 [LNIND 2012 SC 864] : 2013 (2) SCC (Cr)",
369.,
"5. Matti Venkanna, (1922) 46 Mad 257.",
"6. Stephen, Digest of Criminal Law, Article 90.",
"7. Mohan Singh's case, AIR 1963 SC 174 [LNIND 1962 SC 118] : (1963) 1 Cr LJ 100 .",
"8. Suresh Pal v State of UP, AIR 1981 SC 1161 : 1981 Cr LJ 624 : 1981 All LJ 562 : 1981 Supp",
SCC 6 .,
"9. Mohan Singh v State of Punjab, AIR 1963 SC 174 [LNIND 1962 SC 118] : 1963 (1) Cr LJ 100",
10. Supra.,
"11. Shaji v State, (2011) 5 SCC 423 [LNIND 2011 SC 481] : AIR 2011 SC 1825 [LNIND 2011 SC",
"481] : 2011 Cr LJ 2935 (SC). See also Roy Fernandes v State of Goa, (2012) 3 SCC 221 [LNIND",
2012 SC 86] : 2012 Cr LJ 1542 (SC).,
"12. Subran v State of Kerala, 1993 Cr LJ 1387 (SC) : AIR 1993 SCW 1014 : (1993) 3 SCC 32",
"[LNIND 1993 SC 162] , 39.",
"13. Ram Chandra Chaudhary v State of UP, 1992 Cr LJ 1488 (All). Over a dozen persons",
"prosecuted, others acquitted, only two convicted of whom one died, the remaining one convict",
"entitled to acquittal on the same grounds, see Malkiat Singh v State of Punjab, 1994 Cr LJ 623 :",
AIR 1993 SCW 4071 .,
"14. Motiram, (1960) 62 Bom LR 514 ; Kartar Singh, AIR 1961 SC 1787 [LNIND 1961 SC 210] :",
1961 (2) Cr LJ 853 .,
"15. Ram Tahal, 1972 Cr LJ 227 (SC); Amir Hussain, 1975 Cr LJ 1874 : AIR 1975 SC 2211 ;",
"Methala Potturaju v State of AP, (1992) 1 SCC 49 [LNIND 1991 SC 448] : AIR 1991 SC 2214",
[LNIND 1991 SC 448] : 1991 Cr LJ 3133 : AIR 1991 SC 2214 [LNIND 1991 SC 448] .,
"16. Sahebrao Kisan Jadhav v State of Maharashtra, 1992 Cr LJ 339 (Bom) : 1992 (1) Bom CR 423",
[LNIND 1991 BOM 410] .,
"17. Bhanwar Singh v State of MP, (2008) 16 SCC 657 [LNIND 2008 SC 1246] : AIR 2009 SC 768",
[LNIND 2008 SC 1246] : (2008) 67 AIC 133 .,
"18. KM Ravi v State of Karnataka, (2009) 16 SC 337 ; Baladin, AIR 1956 SC 181 : 1956 Cr LJ 345 .",
"See also Masalti v State of UP, AIR 1965 SC 202 [LNIND 1964 SC 173] : (1965) 1 Cr LJ 226 ; and",
"Bishambar, AIR 1971 SC 2381 : 1971 Cr LJ 1700 ; followed in Babu Hamidkhan Mestry v State of",
"Maharashtra, (1995) 2 Cr LJ 2355 (Bom) cited in Binay Kumar Singh v State of Bihar, AIR 1997 SC",
322 [LNIND 1996 SC 2707] : 1997 AIR SCW 78 : (1997) 1 SCC 283 [LNIND 1996 SC 2707] : 1997,
"Cr LJ 362 , to the effect that where a larger number of persons are accused of committing a",
"crime and are charged with the aid of section 149, the court should be extremely careful in",
"scrutinising the evidence and there should be two, three or more witness who should be",
"consistent. This ruling was applied in Kamaksha Rai v State of UP, AIR 2000 SC 53 [LNIND 1999",
"SC 885] : 2000 Cr LJ 178 . See also Thankappan Mohanan v State of Kerala, 1990 Cr LJ 1477 ;",
"Chinu Patel v State of Orissa, 1990 Cr LJ 248 (Ori).",
"19. Uday Singh v State of MP, AIR 2017 SC 393 .",
"20. Raj Nath v State of UP, AIR 2009 SC 1422 [LNIND 2009 SC 59] : (2009) 4 SCC 334 [LNIND",
2009 SC 59] : (2009) 1 SCR 336 : JT 2009 (1) SC 373 [LNIND 2009 SC 85] ; (2009) 2 SCC (Cr),
289.,
"21. Uday Singh v State of MP, AIR 2017 SC 393 .",
"22. Raj Nath v State of UP, AIR 2009 SC 1422 [LNIND 2009 SC 59] : (2009) 4 SCC 334 [LNIND",
2009 SC 59] : (2009) 1 SCR 336 : JT 2009 (1) SC 373 [LNIND 2009 SC 85] : (2009) 2 SCC (Cr),
289.,
"23. Akbar Sheikh v State of WB, (2009) 7 SCC 415 [LNIND 2009 SC 1106] : (2009) 3 SCC (Cr)",
431.,
"24. Amrik Singh v State of Punjab, 1993 AIR SCW 2482 : 1993 Cr LJ 2857 : 1994 Supp (1) SCC",
320 .,
"25. SP Sinha v State of Maharashtra, AIR 1992 SC 1791 : 1992 Cr LJ 2754 : 1993 Supp (1) SCC",
658 .,
"26. Thakore Dolji Vanvirji v State of Gujarat, AIR 1992 SC 209 : 1992 Cr LJ 3953 .",
"27. Bhanwar Singh v State of MP, (2008) 16 SCC 657 [LNIND 2008 SC 1246] : AIR 2009 SC 768",
[LNIND 2008 SC 1246] : (2008) 67 AIC 133 . There was no right of private defence in the,
"circumstances, the accused persons were aggressors and such persons cannot claim benefit of",
private defence.,
"28. Bharat Soni v State of Chhattisgarh, 2013 Cr LJ 486 (SC) 2013 (1) Mad LJ (Cr) 94 : 2013 (1)",
Crimes 66 .,
"29. Rajendra Shantaram Todankar v State of Maharashtra, AIR 2003 SC 1110 [LNIND 2003 SC 4] :",
2003 (2) SCC 257 [LNIND 2003 SC 4] .,
"30. Abdul Hamid, (1922) 2 Pat 134 (SB).",
"31. Ramendrachandra Ray, (1931) 58 Cal 1303 .",
"32. Narain, (1875) 7 NWP 209.",
"33. State of UP v Niyamat, (1987) 1 SCC 434 : AIR 1987 SC 1652 [LNIND 1987 SC 391] : 1987 Cr",
LJ 1881 .,
"34. Manga @ Man Singh v State of Uttarakhand, (2013) 7 SCC 629 [LNIND 2013 SC 529] : 2013",
Cr LJ 3332 .,
"35. Noorul Huda Maqbool Ahmed v Ram Deo Tyagi, (2011) 7 SCC 95 [LNIND 2011 SC 570] : 2011",
Cr LJ 4264 : (2011) 3 SCC (Cr) 31.,
"36. Gulam Hoosein, (1909) 11 Bom LR 849 .",
"37. Veerabadra Pillai v State, (1927) 51 Mad 91.",
"38. Mathu Pandey, (1970) 1 SCR 358 [LNIND 1969 SC 516] : AIR 1970 SC 27 [LNIND 1969 SC",
516] .,
"39. Prag Dat, (1898) 20 All 459 ; Kabiruddin, (1908) 35 Cal 368 ; Maniruddin, (1908) 35 Cal 384 .",
"See also Onkarnath, 1974 Cr LJ 1015 : AIR 1974 SC 1550 [LNIND 1974 SC 154] ; Vishvas v State,",
1978 Cr LJ 484 : AIR 1978 SC 414 [LNIND 1978 SC 17] .,
"40. Khemee Singh, (1864) 1 WR (Cr) 18; Lokenath Kar, (1872) 18 WR (Cr) 2.",
"41. Ragho Singh, (1902) 6 Cal WN 507.",
"42. Dinobundo Rai, (1868) 9 WR (Cr) 19.",
"43. Moti Das, AIR 1954 SC 657 at p 659.",
"44. Sheo Dayal v State, (1933) 55 All 689 .",
"45. Baladin, 1956 Cr LJ 345 : AIR 1956 SC 181 ; Hanuman Singh, 1969 Cr LJ 359 (All); Md",
"Shariff, 1969 Cr LJ 1351 (Bom); Musakhan, 1976 Cr LJ 1987 : AIR 1976 SC 2566 ; Muthu Naicker",
"v State of WB, 1978 Cr LJ 1713 (SC). To the same effect, State of Karnataka v Mallu Kallappa",
"Patil, 1994 Cr LJ 952 : AIR 1994 SC 784 : 1994 Supp (3) SCC 352 .",
"46. R Deb, Principles of Criminology, Criminal Law and Investigation, 2nd Edn, vol II, p 862. See",
"also Akbar Sheikh v State of WB, (2009) 7 SCC 415 [LNIND 2009 SC 1106] : (2009) 3 SCC (Cr)",
"431; Rattiram v State of MP, through Inspector of Police, 2013 Cr LJ 2353 (SC) : 2013 AIR (SCW)",
2456.,
"47. Apren Joseph, 1972 Cr LJ 1162 (Ker); See also Balwant Singh, 1972 Cr LJ 645 : AIR 1972 SC",
860 [LNIND 1972 SC 94] .,
"48. Kutubuddin Hasansab Mahat, 1977 Cr LJ NOC 155 (Kant); See also Moti Das, 1954 Cr LJ",
"1708 : AIR 1954 SC 657 ; Sukha, 1956 Cr LJ 923 : AIR 1956 SC 513 [LNIND 1956 SC 30] ;",
"Chandrika Prasad, 1972 Cr LJ 22 : AIR 1972 SC 109 [LNIND 1971 SC 453] .",
"49. Jayendra Shantaram Dighe v State of Maharashtra, 1992 Cr LJ 2796 (Bom).",
"50. Peary Mohun Sircar, (1883) 9 Cal 639 .",
"51. Silajit Mahto, (1909) 36 Cal 865 .",
THE INDIAN PENAL CODE,
CHAPTER VIII OF OFFENCES AGAINST THE PUBLIC TRANQUILLITY,
The offences in this chapter may be classified in the following four groups:—,
I. Unlawful assembly.,
"(1) Being a member of an unlawful assembly (sections 141, 142, 143).",
(2) Joining an unlawful assembly armed with deadly weapons (section 144).,
(3) Joining or continuing in an unlawful assembly knowing it has been commanded,
to disperse (section 145).,
(4) Hiring of persons to join an unlawful assembly (section 150).,
(5) Harbouring persons hired for an unlawful assembly (section 157).,
(6) Being hired to take part in an unlawful assembly (section 158).,
"II. Rioting (sections 146, 147).",
(1) Rioting with deadly weapon (section 148).,
(2) Assaulting or obstructing a public servant in the suppression of a riot (section,
152).,
(3) Wantonly giving provocation with intent to cause riot (section 153).,
(4) Liability of the owner or occupier of land on which an unlawful assembly is held,
or a riot is committed (section 154).,
(5) Liability of the person for whose benefit a riot is committed (section 155).,
(6) Liability of the agent of owner or occupier for whose benefit a riot is committed,
(section 156).,
III. Promoting enmity between different classes (section 153A).,
"IV. Affray (sections 159, 160).",
[s 144] Joining unlawful assembly armed with deadly weapon.,
"Whoever, being armed with any deadly weapon, or with anything which, used as a",
"weapon of offence, is likely to cause death, is a member of an unlawful assembly,",
shall be punished with imprisonment of either description for a term which may,
"extend to two years, or with fine, or with both.",
COMMENT—,
Armed with deadly weapons.—This is an aggravated form of the offence mentioned in,
the last section. The risk to public tranquillity is aggravated by the intention of using,
force evinced by carrying arms. The enhanced punishment under this section can only,
be inflicted on that member of an unlawful assembly who is armed with a weapon of,
offence.,
THE INDIAN PENAL CODE,
CHAPTER VIII OF OFFENCES AGAINST THE PUBLIC TRANQUILLITY,
The offences in this chapter may be classified in the following four groups:—,
I. Unlawful assembly.,
"(1) Being a member of an unlawful assembly (sections 141, 142, 143).",
(2) Joining an unlawful assembly armed with deadly weapons (section 144).,
(3) Joining or continuing in an unlawful assembly knowing it has been commanded,
to disperse (section 145).,
(4) Hiring of persons to join an unlawful assembly (section 150).,
(5) Harbouring persons hired for an unlawful assembly (section 157).,
(6) Being hired to take part in an unlawful assembly (section 158).,
"II. Rioting (sections 146, 147).",
(1) Rioting with deadly weapon (section 148).,
(2) Assaulting or obstructing a public servant in the suppression of a riot (section,
152).,
(3) Wantonly giving provocation with intent to cause riot (section 153).,
(4) Liability of the owner or occupier of land on which an unlawful assembly is held,
or a riot is committed (section 154).,
(5) Liability of the person for whose benefit a riot is committed (section 155).,
(6) Liability of the agent of owner or occupier for whose benefit a riot is committed,
(section 156).,
III. Promoting enmity between different classes (section 153A).,
"IV. Affray (sections 159, 160).",
"[s 145] Joining or continuing in unlawful assembly, knowing it has been",
commanded to disperse.,
"Whoever joins or continues in an unlawful assembly, knowing that such unlawful",
"assembly has been commanded in the manner prescribed by law to disperse, shall be",
punished with imprisonment of either description for a term which may extend to two,
"years, or with fine, or with both.",
COMMENT—,
Joining or continuing with unlawful assembly.—,
"This section is connected with section 151, infra. Section 188 of IPC, 1860 provides for",
the disobedience of any lawful order promulgated by a public servant. Sections 145,
and 151 deal with special cases as the disobedience may cause serious breach of the,
"peace. As to the powers of the police to disperse an unlawful assembly, see section",
"129, Criminal Procedure Code.",
[s 145.1] CASES.—,
Where an assembly did not by its own conduct become an unlawful assembly by,
"developing common object within the meaning of section 141, IPC, 1860, its members",
"could not be convicted under section 145, IPC, by merely joining or continuing as its",
"members.52. It may, however, be added here that members of such an assembly, even",
"though not unlawful, could be prosecuted under section 151, IPC, if the order of",
dispersal had been lawfully given in the bona fide exercise of police powers under,
"section 129, Code of Criminal Procedure, 1973 (Cr PC, 1973), with a view to preventing",
a breach of the peace.53.,
"52. Jagmohan, 1977 Cr LJ 1394 (Ori).",
"53. R Deb, Op Cit, vol II, pp 834–835; See also Duncan, supra.",
THE INDIAN PENAL CODE,
CHAPTER VIII OF OFFENCES AGAINST THE PUBLIC TRANQUILLITY,
The offences in this chapter may be classified in the following four groups:—,
I. Unlawful assembly.,
"(1) Being a member of an unlawful assembly (sections 141, 142, 143).",
(2) Joining an unlawful assembly armed with deadly weapons (section 144).,
(3) Joining or continuing in an unlawful assembly knowing it has been commanded,
to disperse (section 145).,
(4) Hiring of persons to join an unlawful assembly (section 150).,
(5) Harbouring persons hired for an unlawful assembly (section 157).,
(6) Being hired to take part in an unlawful assembly (section 158).,
"II. Rioting (sections 146, 147).",
(1) Rioting with deadly weapon (section 148).,
(2) Assaulting or obstructing a public servant in the suppression of a riot (section,
152).,
(3) Wantonly giving provocation with intent to cause riot (section 153).,
(4) Liability of the owner or occupier of land on which an unlawful assembly is held,
or a riot is committed (section 154).,
(5) Liability of the person for whose benefit a riot is committed (section 155).,
(6) Liability of the agent of owner or occupier for whose benefit a riot is committed,
(section 156).,
III. Promoting enmity between different classes (section 153A).,
"IV. Affray (sections 159, 160).",
[s 146] Rioting.,
"Whenever force or violence is used by an unlawful assembly,1 or by any member",
"thereof, in prosecution of the common object2 of such assembly, every member of",
such assembly is guilty of the offence of rioting.,
THE INDIAN PENAL CODE,
CHAPTER VIII OF OFFENCES AGAINST THE PUBLIC TRANQUILLITY,
The offences in this chapter may be classified in the following four groups:—,
I. Unlawful assembly.,
"(1) Being a member of an unlawful assembly (sections 141, 142, 143).",
(2) Joining an unlawful assembly armed with deadly weapons (section 144).,
(3) Joining or continuing in an unlawful assembly knowing it has been commanded,
to disperse (section 145).,
(4) Hiring of persons to join an unlawful assembly (section 150).,
(5) Harbouring persons hired for an unlawful assembly (section 157).,
(6) Being hired to take part in an unlawful assembly (section 158).,
"II. Rioting (sections 146, 147).",
(1) Rioting with deadly weapon (section 148).,
(2) Assaulting or obstructing a public servant in the suppression of a riot (section,
152).,
(3) Wantonly giving provocation with intent to cause riot (section 153).,
(4) Liability of the owner or occupier of land on which an unlawful assembly is held,
or a riot is committed (section 154).,
(5) Liability of the person for whose benefit a riot is committed (section 155).,
(6) Liability of the agent of owner or occupier for whose benefit a riot is committed,
(section 156).,
III. Promoting enmity between different classes (section 153A).,
"IV. Affray (sections 159, 160).",
[s 147] Punishment for rioting.,
"Whoever is guilty of rioting, shall be punished with imprisonment of either description",
"for a term which may extend to two years, or with fine, or with both.",
COMMENT—,
"Rioting.—A riot is an unlawful assembly in a particular state of activity, which activity is",
accompanied by the use of force or violence. It is only the use of force that,
distinguishes rioting from an unlawful assembly.54. Under the Common law when,
members of an unlawful assembly actually carry out their unlawful common purpose,
"with violence, so as to cause alarm, they are guilty of riot. For a successful prosecution",
of a riot case the prosecution must prove:—,
(i) that there were five or more persons;,
(ii) that they had a common purpose;,
(iii) that they had begun to execute such purpose;,
"(iv) that they intended to help one another by force, if necessary;",
(v) that they had shown such degree of violence which would alarm at least one,
person of reasonable courage.,
"This last mentioned fact need not be proved by calling a person, who has been so",
alarmed but it may be made out from facts and circumstances of the case in hand.55.,
The ingredients mentioned in item numbers (iv) and (v) above are not to be found at all,
"in section 146 of IPC, 1860. Where some youths exceeding three were found",
demolishing a wall but disappeared the moment the caretaker of the building appeared,
"at the scene, it was held that they could not be convicted of the offence of riot under",
the common law as there was no evidence of show of violence sufficient to alarm one,
person of reasonable firmness and courage.56. In the Indian context in this very case,
the offence of rioting was complete the moment the youths used force to demolish the,
"wall for it was not necessary in the Indian law to use force or violence against a person,",
far less to cause alarm to a person of reasonable courage and firmness. Force or,
"violence against an inanimate object too comes within the purview of section 146, IPC,",
1860.57.,
[s 147.1] Ingredients.—,
The following are the essentials of the offence of rioting:—,
"(1) That the accused persons, being five or more in number, formed an unlawful",
assembly.,
(2) That they were animated by a common object.,
(3) That force or violence was used by the unlawful assembly or any member of it in,
prosecution of the common object.,
1. 'Force or violence is used by an unlawful assembly'.—The word 'violence' is not,
"restricted to force used against persons only, but extends also to force against",
inanimate objects.58. The words 'force' and 'violence' in this section connote different,
and distinct concepts. 'Force' is narrowed down by the definition under section 350 to,
persons while the word 'violence' includes violence to property and other inanimate,
objects.59.,
"The use of any force, even though it be of the slightest possible character, by any one",
"of an assembly once established as unlawful, constitutes rioting.60. Where a member",
of an unlawful assembly in prosecution of the common object of the assembly throws,
"down a man and then causes him bodily hurt, the offence of rioting under this section",
is complete as soon as the man is thrown down by using force and the hurt,
subsequently caused would come under section 323 or section 325.61. The essential,
question in a case under section 147 is whether there was an unlawful assembly of five,
or more persons. The identity of the persons comprising the assembly is a matter,
relating to the determination of the guilt of the individual accused and even when it is,
"possible to convict less than five persons only, section 147 still applies, if upon the",
evidence in the case the Court is able to hold that the person or persons who have been,
"found guilty were members of an assembly of five or more persons, known or unknown,",
identified or unidentified.62. It has been held by the Supreme Court that this section is,
not attracted where the act in question was done in pursuit of a lawful object. In this,
case the investigating police party was being led by the witness to a spot for recovering,
the dead-body. The witness tried to run away and was beaten up with a lathi. He died,
shortly thereafter. The Supreme Court did not sustain the conviction of the police,
personnel under this section.63.,
2. 'In prosecution of the common object'.—Acts done by some members of an unlawful,
assembly outside the common object of the assembly or of such a nature as the,
members of the assembly could not have known to be likely to be committed in,
prosecution of that object are only chargeable against the actual perpetrators of those,
acts.64. It is obligatory on the part of the court to examine that if the offence,
"committed is not in direct prosecution of the common object, it yet may fall under",
"second part of section 149, IPC, 1860, if the offence was such as the members knew",
was likely to be committed. Further inference has to be drawn as what was the number,
of persons; how many of them were merely passive witnesses; what were their arms,
and weapons. Number and nature of injuries is also relevant to be considered.65.,
[s 147.2] 'Resistance to illegal warrant'.—,
Resistance to the execution of an illegal warrant within reasonable bounds does not,
"amount to rioting; but when the right of resistance is exceeded and a severe injury, not",
"called for, is inflicted, the person who inflicts the injury may be convicted of such",
injury.66.,
[s 147.3] 'Sudden quarrel'.—,
If a number of persons assembled for any lawful purpose suddenly quarrel without any,
"previous intention or design, they do not commit 'riot' in the legal sense of the word.67.",
[s 147.4] 'Fundamental principles in cases of mammoth rioting'.—,
(1) Notwithstanding the large number of rioters or of the persons put up in Court for,
"rioting, and the consequent difficulty for the prosecution to name the specific acts",
"attributed to each of the accused, the Court must see to it that all the ingredients",
required for unlawful assembly and rioting are strictly proved by the prosecution before,
"convicting the particular accused persons.68.(2) Spectators, wayfarers, etc., attracted",
"to the scene of the rioting by curiosity, should not be, by reason of their mere presence",
"at the scene of rioting and with the rioters, held to be members of the unlawful",
"assembly or rioters. But of course, if they are proved to have marched with the rioters",
"for a long distance, when the rioters were shouting tell-tale slogans and pelting stones,",
it will be for them to prove their innocence under section 106 of the Indian Evidence,
"Act, 1872. (3) It will be very unsafe, in the case of such a large mob of rioters, to rely on",
the evidence of a single witness speaking to the presence of an accused in that mob for,
"convicting him, especially when no overt act of violence, or shouting of slogan, or",
"organising the mob, or giving orders to it or marching in procession with it, or other",
"similar thing is proved against him. In a big riot by hundreds of persons, it is very easy",
"even to mistake one person for another, and to implicate honestly really innocent",
"persons, and even, to mistake persons seen elsewhere as having been seen there. An",
ordinary rule of caution and prudence will require that an accused person identified,
"only by one witness, and not proved to have done any overt act, etc., as described",
"above, should be acquitted, by giving him the benefit of the doubt. (4) Where there are",
acute factions based on either agrarian disputes and troubles or on political wrangling,
"and rivalry or on caste divisions or on divisions of the ""haves"" and the ""have-nots,"" the",
greatest care must be exercised before believing the evidence of a particular witness,
belonging to one of these factions against an accused of the opposite view. This,
"principle becomes of special importance when there are no overt acts, etc., proved, and",
when there are only one or two witnesses speaking to the presence of the accused,
"among the rioters, and they belong to the classes or factions opposed to the accused.",
"(5) Mere followers in rioting deserve a much more lenient sentence than leaders, who",
"mislead them into such violent acts, by emotional appeals, slogans and cries.69.",
[s 147.5] Offence Compoundable:,
"When an offence is compoundable under section 320 of Cr PC, 1973, and where the",
accused is liable under section 34 or 149 of IPC (45 of 1860) it may be compounded in,
like manner.70.,
[s 147.6] CASES.—,
"Where several Hindus, acting in concert, forcibly removed an ox and two cows from the",
"possession of a Mohammedan, not for the purpose of causing 'wrongful gain' to",
"themselves or 'wrongful loss' to the owner of the cattle, but for the purpose of",
"preventing the killing of the cows, it was held that they were guilty of rioting.71. There",
was a dispute about the possession of a certain land between the complainant and the,
accused. The complainant dug a well with a view to cultivate the said land. The,
accused forcibly entered on the land and damaged the well. It was held that the,
accused were guilty under this section as an accused person is not entitled to go upon,
"his own land and by violence destroy the property of the complainant, even though a",
trespasser.72.,
[s 147.7] No unlawful assembly.—,
The accused on receiving information that the complainant's party were about to take,
"forcible possession of a plot of their land, collected a number of men, some of whom",
"were armed, and went to the land. While they were engaged in ploughing, the",
"complainant's party came up and interfered with the ploughing. A fight ensued, in the",
course of which one of the complainant's party was grievously wounded and,
"subsequently died, and two of the accused's party were hurt. It was held that the",
accused were justified in taking such precautions as they thought were required to,
"prevent the aggression, and that they were not members of an unlawful assembly.73.",
[s 147.8] Free fight.—,
In a free fight there cannot be said to be any formation of an unlawful assembly and,
common intention. Each accused will be responsible for his individual act.74.,
[s 147.9] Separate trials.—,
"Where two opposite factions commit a riot, it is illegal to treat both parties as",
"constituting one unlawful assembly and to try them together, as they cannot have one",
common object within the meaning of section 141; each party should be tried,
separately.75.,
"54. Rasul, (1888) PR No. 4 of 1889.",
"55. Sharp, Johnson, (1957) 1 QB 522 , per Lord Goddard, CJ.",
"56. Field v Metropolitan Police Receiver, (1907) 2 KB 853 .",
"57. Kalidas, 48 Cr LJ 351 (Cal).",
"58. Samaruddi, (1912) 40 Cal 367 .",
"59. Lakshmiammal v Samiappa, AIR 1968 Mad 310 [LNIND 1967 MAD 171] ; Kalidas, 48 Cr LJ",
351 (Cal).,
"60. Koura Khan v State, (1868) PR No. 34 of 1868; Ramadeen Doobay, (1876) 26 WR (Cr) 6.",
"61. Parmeshwar, (1940) 16 Luck 51 .",
"62. Kapildeo Singh, (1949–1950) FCR 834 : 52 Bom LR 512.",
"63. Maiku v State of UP, AIR 1989 SC 67 : 1989 Cr LJ 360 : 1989 Supp (1) SCC 25 .",
"64. Agra, (1914) PR No. 37 of 1914. Vishal Singh v State of MP, AIR 1998 SC 308 [LNIND 1997",
"SC 1362] : 1998 Cr LJ 505 . See also Kania v State of Rajasthan, 1998 Cr LJ 50 (Raj). Bhanwarlal",
"v State of Rajasthan, 1998 Cr LJ 3489 (Raj), fight between main accused and deceased over",
"possession of land, other persons who were present at the spot and played no role could not be",
roped in.,
"65. Ramachandran v State, (2011) 9 SCC 257 [LNIND 2011 SC 854] : AIR 2011 SC 3581 [LNIND",
2011 SC 854] : (2011) 3 SCC (Cr) 677.,
"66. Uma Charan Singh, (1901) 29 Cal 244 .",
"67. Khajah Noorul Hoossein v C Fabre-Tonnerre, (1875) 24 WR (Cr) 26; State of UP v Jodha Singh,",
"AIR 1989 SC 1822 : 1989 Cr LJ 2113 : (1989) 3 SCC 465 , a verbal quarrel converting itself into",
"armed group conflict, held not punishable under this section or section 108.",
"68. See Sherey v State of UP, 1991 Cr LJ 3289 : AIR 1991 SC 2246 , where the Supreme Court",
observed that it would be safe to convict only those whose presence was consistently,
established by the evidence appearing from the stage of the First Information Report and to,
whom covert acts of violence were attributed. Kutumbaka Krishna Mohan Rao v Public,
"Prosecutor, AIR 1991 SC 314 : 1991 Cr LJ 1711 : 1991 Supp (2) SCC 509 , how presence is to be",
"established. Budhwa v State of MP, AIR 1991 SC 4 [LNIND 1990 SC 580] : 1990 Cr LJ 2597 ,",
where the conviction of only four out of fifteen accused was upheld because evidence,
established only their participation in the attack.,
"69. Arulanandu, (1952) Mad 728. See also Toseswar Chutia v State of Assam, 2002 Cr LJ 1465",
"(Gau); Bhima v State of Maharashtra, AIR 2002 SC 3086 [LNIND 2002 SC 528] (Bom).",
"70. Section 320 (3), Cr PC, 1973.",
"71. Raghunath Rai v State, (1892) 15 All 22 .",
"72. Abdul Hussain, (1943) Kar 7 . See Ajab v State of Maharashtra, AIR 1989 SC 827 : 1989 Cr LJ",
954 : (1989) Supp (1) SCC 601 .,
"73. Pachkauri, (1897) 24 Cal 686 ; Fateh Singh, (1913) 41 Cal 43 . K Ashokan v State of Kerala,",
"AIR 1998 SC 1974 [LNIND 1998 SC 223] : 1998 Cr LJ 2834 , names of miscreants not mentioned",
"by eye-witnesses in the FIR, miscreants mentioned in the investigation report which included",
certain names in different ink. False implication could not be ruled out. Benefit of doubt to,
"accused persons. State of UP v Dan Singh, 1997 Cr LJ 1159 : AIR 1997 SC 1654 [LNIND 1997 SC",
"162] , the members of marriage party of a scheduled caste, were assaulted by villagers by sticks",
and stones. Some of them were burnt alive inside the house of the victims. The accused,
"persons were held liable to be convicted under sections 147, 302/149, 436/149, 323/149 and",
"sections 307/149. Lakhu Singh v State of Rajasthan, 1997 Cr LJ 3638 (Raj), lathi is not a deadly",
"weapon, lathi bearing accused could not be convicted under section 148. Conviction altered to",
one under section 147.,
"74. Mangal Singh v State of MP, 1996 Cr LJ 1908 (MP).",
"75. Hossein Buksh, (1880) 6 Cal 96 ; Bachu Mullah v Sia Ram Singh, (1886) 14 Cal 358 ; Chandra",
"Bhuiya, (1892) 20 Cal 537 .",
THE INDIAN PENAL CODE,
CHAPTER VIII OF OFFENCES AGAINST THE PUBLIC TRANQUILLITY,
The offences in this chapter may be classified in the following four groups:—,
I. Unlawful assembly.,
"(1) Being a member of an unlawful assembly (sections 141, 142, 143).",
(2) Joining an unlawful assembly armed with deadly weapons (section 144).,
(3) Joining or continuing in an unlawful assembly knowing it has been commanded,
to disperse (section 145).,
(4) Hiring of persons to join an unlawful assembly (section 150).,
(5) Harbouring persons hired for an unlawful assembly (section 157).,
(6) Being hired to take part in an unlawful assembly (section 158).,
"II. Rioting (sections 146, 147).",
(1) Rioting with deadly weapon (section 148).,
(2) Assaulting or obstructing a public servant in the suppression of a riot (section,
152).,
(3) Wantonly giving provocation with intent to cause riot (section 153).,
(4) Liability of the owner or occupier of land on which an unlawful assembly is held,
or a riot is committed (section 154).,
(5) Liability of the person for whose benefit a riot is committed (section 155).,
(6) Liability of the agent of owner or occupier for whose benefit a riot is committed,
(section 156).,
III. Promoting enmity between different classes (section 153A).,
"IV. Affray (sections 159, 160).",
[s 148] Rioting armed with deadly weapon.,
"Whoever is guilty of rioting, being armed with a deadly weapon or with anything",
"which, used as a weapon of offence, is likely to cause death, shall be punished with",
"imprisonment of either description for a term which may extend to three years, or with",
"fine, or with both.",
COMMENT—,
"Rioting with deadly weapons.—Similar to section 144, this section is an aggravated",
form of the offence mentioned in the previous section. Enhanced punishment is,
provided for the person who is armed with a deadly weapon while committing the,
offence of rioting. This section cannot be read with section 149.76.,
Where out of the 45 accused persons convicted by the High Court 36 had been,
"identified as members of the assembly by a solitary witness, the Supreme Court said",
that it was not safe to place reliance in reference to the accused about whom no other,
witness said that they were a part of the assembly. Their conviction was held to be,
"unsustainable. So far as the remaining accused were concerned, the prosecution had",
proved the charge against them under section 148 and therefore their acquittal by the,
High Court was not justified.77.,
"Where several persons assaulted the victim, the court said that it was not necessary",
that the death of the victim must be attributed to a particular injury or to a particular,
assailant. All of them are liable for conviction for causing death of the victim with the,
common object of the unlawful assembly.78.,
[s 148.1] Charge under section 147/148; Conviction under section 149.—,
"The Constitution Bench in Mahadev Sharma v State of Bihar,79. held that if a charge had",
been framed under section 147 or section 148 and that charge had failed against any,
of the accused then section 149 could not have been used against him. The area which,
is common to sections 147 and 149 is the substratum on which different degrees of,
liability are built and there cannot be a conviction with the aid of section 149 when,
there is no evidence of such substratum. The accused have been expressly charged for,
"the offence punishable under section 148, IPC, 1860, and have been acquitted",
"thereunder, they cannot be legally convicted for the offence punishable under section",
"302 read with section 149, IPC. It is so because the offence of rioting must occur when",
members are charged with murder as the common object of the unlawful assembly.,
"The offences under sections 147 and 148 are distinct offences.80. Section 148, IPC",
creates liability on persons armed with deadly weapons and is a distinct offence and,
there is no requirement in law that members of unlawful assembly have also to be,
"charged under section 148, IPC for legally recording their conviction under section 302",
"read with section 149, IPC. However, where an accused is charged under section 148,",
"IPC and acquitted, conviction of such accused under section 302 read with section",
"149, IPC could not be legally recorded.81.",
"76. Vasu Pillai v State, 1956 Cr LJ 1358 ; Nand Kishore v State, AIR 1961 Ori. 29 [LNIND 1959 ORI",
"52] ; Re VS Reddy, (1963) 2 Cr LJ 70 .",
"77. State of AP v Rayaneedi Sitharamaiah, (2008) 16 SCC 179 [LNIND 2008 SC 2492] . Mohd",
"Ishaq v S Kazam Pasha, (2009) 12 SCC 748 [LNIND 2009 SC 1173] : 2009 Cr LJ 3063 , a mob",
60–70 persons armed with deadly weapons entered a house and forcibly removed household,
"articles and took them away on a lorry, person at whose instance they acted, held liable.",
"78. Nand Kishore v State of Bihar, 2000 Cr LJ 5079 (Pat). See also Raju v State of Rajasthan,",
(2007) 10 SCC 289 [LNIND 2007 SC 591] .,
"79. Mahadev Sharma v State of Bihar, AIR 1966 SC 302 [LNIND 1965 SC 143] : 1965 (1) SCR 18 :",
1966 Cr LJ 1971 .,
"80. Vinubhai Ranchhodbhai Patel v Rajivbhai Dudabhai Patel, AIR 2018 SC 2472 [LNIND 2018 SC",
300] .,
"81. Ankoos v Public Prosecutor High Court of AP, (2010) 1 SCC 94 [LNIND 2010 SC 713] : JT",
2009 (14) SC 6 [LNIND 2009 SC 1959] : AIR 2010 SC 566 [LNIND 2009 SC 1959] : 2010 Cr LJ,
861 : (2010) 1 SCC (Cr) 460.,
THE INDIAN PENAL CODE,
CHAPTER VIII OF OFFENCES AGAINST THE PUBLIC TRANQUILLITY,
The offences in this chapter may be classified in the following four groups:—,
I. Unlawful assembly.,
"(1) Being a member of an unlawful assembly (sections 141, 142, 143).",
(2) Joining an unlawful assembly armed with deadly weapons (section 144).,
(3) Joining or continuing in an unlawful assembly knowing it has been commanded,
to disperse (section 145).,
(4) Hiring of persons to join an unlawful assembly (section 150).,
(5) Harbouring persons hired for an unlawful assembly (section 157).,
(6) Being hired to take part in an unlawful assembly (section 158).,
"II. Rioting (sections 146, 147).",
(1) Rioting with deadly weapon (section 148).,
(2) Assaulting or obstructing a public servant in the suppression of a riot (section,
152).,
(3) Wantonly giving provocation with intent to cause riot (section 153).,
(4) Liability of the owner or occupier of land on which an unlawful assembly is held,
or a riot is committed (section 154).,
(5) Liability of the person for whose benefit a riot is committed (section 155).,
(6) Liability of the agent of owner or occupier for whose benefit a riot is committed,
(section 156).,
III. Promoting enmity between different classes (section 153A).,
"IV. Affray (sections 159, 160).",
[s 149] Every member of unlawful assembly guilty of offence committed in,
prosecution of common object.,
If an offence is committed by any member of an unlawful assembly in prosecution of,
"the common object1 of that assembly, or such as the members of that assembly knew",
"to be likely to be committed in prosecution of that object, every person who, at the",
"time of the committing of that offence, is a member of the same assembly, is guilty of",
that offence.,
COMMENT—,
Liability of every member.—The Supreme Court has held that this section does not,
create a separate offence but only declares the vicarious liability of all the members of,
an unlawful assembly for acts done in prosecution of the common object of that,
assembly or for such offences as the members of the unlawful assembly knew to be,
"likely to be committed in prosecution of that object.82. However, Benches of a smaller",
strength in some cases83. have observed that section 149 creates a specific and,
distinct offence. Thus the law declared therein by the Benches of a smaller strength,
cannot be taken as correct legal position.84. This section creates a specific and distinct,
offence.85. It is not the intention of the legislature in enacting section 149 to render,
every member of unlawful assembly liable to punishment for every offence committed,
"by one or more of its members. In order to attract section 149, it must be shown that",
the incriminating act was done to accomplish the common object of unlawful,
assembly and it must be within the knowledge of other members as one likely to be,
committed in prosecution of the common object.86. A plain reading of the section,
shows that the provision is in two parts. The first part deals with cases in which an,
"offence is committed by any member of the assembly ""in prosecution of the common",
"object"" of that assembly. The second part deals with cases where the commission of a",
given offence is not by itself the common object of the unlawful assembly but,
members of such assembly 'knew that the same is likely to be committed in,
prosecution of the common object of the assembly'.87. This section makes both the,
"categories of persons, those who have committed the offence as also those who were",
"members of the same assembly liable for the offences under section 149, IPC, 1860,",
"provided the other requirements of the section are satisfied. That is to say, if an offence",
"is committed by any person of an unlawful assembly, which the members of that",
"assembly knew to be likely to be committed, every member of such an assembly is",
guilty of the offence. The law is clear that membership of unlawful assembly is,
sufficient to hold such participating members vicariously liable. For mulcting liability on,
"the members of an unlawful assembly under section 149, it is not necessary that every",
member of the unlawful assembly should commit the offence in prosecution of the,
common object of the assembly. Mere knowledge of the likelihood of commission of,
such an offence by the members of the assembly is sufficient.88. Whenever the court,
"convicts any person or persons of any offence with the aid of section 149, a clear",
finding regarding the common object of the assembly must be given and the evidence,
disclosed must show not only the nature of the common object but also that the object,
was unlawful. If members of the assembly knew or were aware of the likelihood of a,
"particular offence being committed in prosecution of a common object, they would be",
liable for the same under section 149.89. In the absence of such finding as also any,
"overt act on the part of the accused persons, mere fact that they were armed would not",
be sufficient to prove common object.90. Where the moot question as to common,
objective is proved all the members of unlawful assembly would be vicariously liable,
for the acts done by the said assembly and thus the separate roles played by all the,
accused persons need not be examined.91. Section 149 makes it abundantly clear that,
if an offence is committed by any member of an unlawful assembly in prosecution of,
"the common object of that assembly, or such as the members of that assembly knew",
"to be likely to be committed in prosecution of that object, every person who, at the time",
"of the committing of that offence is a member of such an assembly, is guilty of that",
"offence, however if a person is a mere bystander, and no specific role is attributed to",
"him, he may not come under the wide sweep contemplated under section 149.92.",
Further where the member had no knowledge of the unlawful object of the assembly or,
"after having gained knowledge, he attempted to prevent the assembly from",
"accomplishing the unlawful object, and after having failed to do so, he disassociated",
"himself from the assembly, the mere participation of him in such an assembly would",
not be made him liable.93.,
The section constitutes a substantive offence.94.,
The Supreme Court reiterated the ambit and scope of this principle of liability as,
follows:,
Section 149 IPC provides for vicarious liability. If an offence is committed by any member of,
an unlawful assembly in prosecution of a common object thereof or such as the members,
of that assembly knew that the offence was likely to be committed in prosecution of that,
"object, every person who at the time of committing that offence was member would be",
guilty of the offence committed. The common object may be commission of one offence,
"while there may be likelihood of commission of yet another offence, the knowledge whereof",
is capable of being safely attributable to the members of the unlawful assembly. Whether a,
member of such unlawful assembly was aware as regards likelihood of commission of,
another offence or not would depend upon the facts and circumstances of each case.,
"Background of the incident, the motive, the nature of the assembly, the nature of the arms",
"carried by the members of the assembly, their common object and the behaviour of the",
"members soon before, at or after the actual commission of the crime would be relevant",
"factors for drawing an inference in that behalf.""95. ""Common object"" means the purpose or",
design shared by all the members which may be formed at any stage. It has to be,
ascertained from the acts and conduct of the individuals concerned and surrounding,
circumstances.96. Common object to commit a murder cannot be inferred only on the basis,
that the weapons carried by the accused were dangerous.97.,
[s 149.1] Ingredients.—,
The section has the following essentials—,
1. There must be an unlawful assembly.,
2. Commission of an offence by any member of an unlawful assembly.,
3. Such offence must have been committed in prosecution of the common object of,
the assembly; or must be such as the members of the assembly knew to be likely to be,
"committed. If these three elements are satisfied, then only a conviction under section",
"149, IPC, 1860, may be substantiated, and not otherwise.98. Section 149 shall not apply",
"to a person who is merely present in any unlawful assembly, unless he actively",
participates in offence or does some overt act with the necessary criminal intention or,
shares the common object of the unlawful assembly.99.,
[s 149.2] Sudden action of one of the member in the assembly; all are not,
liable:,
To the question whether the sudden action of one of the members of the unlawful,
assembly constitutes an act in prosecution of the common object of the unlawful,
assembly namely preventing of erection of the fence in question and whether the,
members of the unlawful assembly knew that such an offence was likely to be,
committed by any member of the assembly Supreme Court answered in the,
"negative.100. As a consequence, the effect of section 149 of IPC, 1860, may be",
different on different members of the same unlawful assembly. Decisions of the,
Supreme Court in Gangadhar Behera v State of Orissa and Bishnaalias,
"BhiswadebMahato v State of WB,101. similarly explained and reiterated the legal position",
on the subject.,
[s 149.3] Sections 34 and 149.—,
"There is a difference between object and intention, for though their object is common,",
the intention of the several members may differ and indeed may be similar only in,
"respect that they are all unlawful, while the element of participation in action, which is",
"the leading feature of section 34, is replaced in section 149 by membership of the",
assembly at the time of the committing of the offence. Both sections deal with,
"combinations of persons, who become punishable as sharers in an offence. Thus they",
"have a certain resemblance and may to some extent overlap, but section 149 cannot at",
any rate relegate section 34 to the position of dealing only with joint action by the,
"commission of identically similar criminal acts, a kind of case which is not in itself",
"deserving of separate treatment at all"".102. Section 34 of IPC, 1860 refers to cases in",
which several persons both do an act and intend to do that act: it does not refer to,
cases where several persons intend to do an act and some one or more of them do an,
entirely different act. In the latter class of cases section 149 of the Code may be,
"applicable but section 34 is not.103. On the other hand, if five or more persons both do",
"an act and intend to do it, both section 34 and section 149, may apply, since the term",
"""member"" in the singular includes the plural also (section 9). In this connection see",
"detailed discussion and cases under sub-head ""Distinction between section 34 and",
"section 149, IPC, 1860,"" under section 34 ante.",
[s 149.4] Scope.—,
This section is not intended to subject a member of an unlawful assembly to,
punishment for every offence which is committed by one of its members during the,
time they are engaged in the prosecution of the common object. It is divided into two,
parts: (1) an offence committed by a member of an unlawful assembly in prosecution,
of the common object of that assembly; and (2) an offence such as the members of,
that assembly knew to be likely to be committed in prosecution of the common object,
"of the unlawful assembly, is one which the accused knew would be likely to be",
committed in prosecution of the common object.104. The section applies equally in,
cases where offences are committed by single member of the assembly and in cases,
where offences are committed by two or more members of the assembly acting in,
furtherance of a common intention.105.,
Once the Court can find that an offence has been committed by some member or,
"members of an unlawful assembly in prosecution of the common object, then whether",
"the principal offender has been convicted for that offence or not, upon the plain",
"wording of this section, the other members may be constructively convicted of that",
"offence, provided they are found to have had the necessary intention or knowledge. It is",
not correct to say that when a member of an unlawful assembly is to be found,
"constructively guilty of an offence under this section, it must be the same offence of",
which the principal is convicted and not some other offence.106.,
Members of an unlawful assembly may have a community of object only up to a certain,
"point, beyond which they may differ in their objects, and the knowledge possessed by",
each member of what is likely to be committed in prosecution of their common object,
"will vary, not only according to the information at his command, but also according to",
"the extent to which he shares the community of object, and as a consequence of this",
the effect of this section may be different on different members of the same unlawful,
assembly.107.,
"Before this section can be called in aid, the Court must find with 'certainty' that there",
were at least five persons sharing the common object. A finding that three of them,
'may or may not have been there' betrays uncertainty on this vital point and it,
consequently becomes impossible to allow the conviction to rest on this uncertain,
foundation. This is not to say that five persons must always be convicted before this,
section can be applied. It is possible in some cases for Judges to conclude that though,
"five were unquestionably there the identity of one or more is in doubt. In that case, the",
conviction of the rest with the aid of this section would be good.108. Non-applicability,
"of section 149, IPC, 1860, is no bar in convicting the accused persons under section",
"302, IPC read with section 34 of IPC, if the evidence discloses commission of offence",
in furtherance of common intention of them all. It would depend on the facts of each,
case as to whether section 34 or section 149 of IPC or both the provisions are,
"attracted.109. Where the accused, forming an unlawful assembly, chased and killed a",
"man by inflicting multiple injuries on his body with sharp edged weapons, it was held",
that circumstances and transaction taken as a whole were sufficient to invoke section,
34 or section 149.110.,
No judgment can be cited as a precedent however similar the facts may be. Each case,
must rest on its own facts.111.,
The persons acting in self-defence of property cannot be members of an unlawful,
assembly.112.,
"1. 'In prosecution of the common object'.—The expression ""in prosecution of common",
"object"" has to be strictly construed as equivalent to ""in order to attain the common",
"object"". There must be community of object and the object may exist only up to a",
"particular stage, and not thereafter. Members of an unlawful assembly may have",
community of object up to certain point beyond which they may differ in their objects,
"and the knowledge, possessed by each member of what is likely to be committed in",
prosecution of their common object may vary not only according to the information at,
"his command, but also according to the extent to which he shares the community of",
"object, and as a consequence of this the effect of section 149, IPC, 1860, may be",
"different on different members of the same assembly.113. The word ""knew"" as used in",
"the second branch of section 149 implied something more than ""possibility"" and it",
"cannot bear the sense of ""might have known"". An offence committed in prosecution of",
common object would generally be the offence which the members of the assembly,
knew was likely to be committed.114. This phrase means that the offence committed,
"was immediately connected with the common object of the unlawful assembly, of",
which the accused were members. The act must be one which must have been done,
with a view to accomplish the common object attributed to the members of the,
"unlawful assembly. Where the common object is established, the unlawful assembly",
does not cease to be so by merely splitting itself into two groups for launching the,
"attack. Section 149, IPC, 1860, would be clearly applicable to such a case.115.",
"The words ""in prosecution of the common object"" do not mean ""during the prosecution",
"of the common object of the assembly"". It means that the offence committed was",
immediately connected with the common object of the assembly or the act is one,
which upon the evidence appears to have been done with a view to accomplish the,
"common object attributed to the members of the assembly. The words ""in prosecution",
"of the common object"" have to be strictly construed as equivalent to ""in order to attain",
"common object"".116. In the present case,117. the common object of unlawful assembly",
was to kill a particular person. Two members of the assembly went after him. Sensing,
"danger, he ran into the adjoining room to fetch a spear to defend himself. His wife",
"blocked his way and he could not come out. Frustrated, as they were, the two members",
of the assembly gunned down two young girls of their intended victim who were then,
playing in the courtyard outside the house. The conviction of the rest of the members,
"for this murder was set aside as this was neither their common object, nor incidental to",
"that, nor necessary for its attainment.",
Vicarious responsibility can be fastened only on proof that the ultimate act was done in,
pursuance of common object.118.,
"Even where the common object is not developed at the initial stage, it may develop on",
"the spot, eoinstanti. Thus, where it appeared that members of a party divided",
themselves into small groups and waited for the victim and simultaneously pounced,
"upon him and jointly removed his body, the fact that they did not assemble at one place",
"under any plan, but came there separately, was considered by the Supreme Court to be",
not of much importance because at the sensitive moment they seemed to be acting in,
"an organised way.119. Where, however, the agreement specifically was only to give a",
"thrashing to the victim, but one of them pulled out a knife and stabbed the victim, it was",
"held that neither at the initial stage nor at the execution stage, could it be said that",
there was the object to cause a fatal injury so as to make all others liable for the,
death.120.,
[s 149.5] Change of object.—,
Members who shared the original common intention may not be liable when some,
members adopted a subsequently developed and aggravated common object and,
acted on it.121.,
[s 149.6] CASES.—Prosecution of common object.—,
"While membership of an unlawful assembly itself is an offence under section 143, IPC,",
"1860, use of force by members of the unlawful assembly gives rise to the offence of",
"rioting which is punishable either under section 147 or section 148, IPC. Membership",
of the 4 accused in the unlawful assembly and use of force with dangerous weapons is,
borne out by the evidence on record. The said facts would make the acquitted accused,
"liable for the offence under section 148 of IPC, 1860.122. Where a small compact body",
"of men armed with clubs, and headed by a man carrying a gun, endeavoured to take",
"forcible possession of certain lands, and one of the opponents was shot by their leader,",
it was held that they were guilty of murder.123.,
Where in a faction- ridden village the members of one party seeing someone of the,
"other party alighting from a bus emerged together to attack him, it could be easily said",
that they shared the common object to assault one of their enemies and at that stage,
the assembly turned into an unlawful assembly.124. Where several persons assaulted,
"and caused injuries to the deceased, however except one incised injury on the head, all",
"were lacerated injuries on legs, common object of the unlawful assembly was held to",
cause grievous hurt and not murder and conviction of the accused was altered from,
"sections 302/ 149 to sections 326/149.125. Where the accused, being members of an",
"unlawful assembly and being armed with sharp edged weapons, used only the blunt",
"sides of their weapons, they were held to share the common object of causing grievous",
hurt and not murder.57 Accused persons variously armed entered a police wireless,
station after breaking open doors and windows and assaulted inmates. Their individual,
acts were not known. It was held that all the accused persons must be deemed to have,
shared the common object of lurking house trespass and could be convicted under,
sections 149/455.126. Where two innocent young girls were killed in a very gruesome,
"manner just only to teach a lesson to their mother over a property dispute, every",
member of the killing team was held to be equally guilty deserving the maximum,
"penalty of death, it being a case of the ""rarest of rare"" category.127. Where the death of",
a police officer was caused while he was arresting the accused and those who caught,
"hold of him intended only to prevent him from performing his duty, but the main",
"accused suddenly killed him, it was held that the common object of the unlawful",
assembly was to deter police from performing their duty and not to commit murder.,
Their conviction was altered from one under sections 302/149 to one under section,
353/149.128. Several persons entered into a conspiracy to commit dacoity during the,
course of which one of the accused fired a shot which missed the target and hit one of,
his accomplices who died. The other accused fired a shot and killed one of the inmates,
of the house. The accused killing the inmate was convicted under sections 302 and,
"398. The three others were punished under section 398/149, their common object",
being dacoity and not murder.129.,
The accused persons were armed with lathis and guns. They declared on entry into the,
"threshing floor mill that they had come to take away the paddy and, if the owner",
"resisted, they would take life out of him. In these circumstances they caused death. s",
conviction under section 300 read with section 149 was held to be not illegal.130.,
There is no requirement for conviction under the section of assigning definite roles to,
the accused persons.131.,
[s 149.7] Identification of all the five not necessary.—,
The section does not require that all the five persons must be identified. Presence of,
five persons is required to be established with the common object of doing an act. The,
fact that all of them could not be identified would not affect the application of the,
section. The eye-witnesses identified only four of them but testified that others were,
present with weapons at the time and place of occurrence.,
[s 149.8] Unlawful assembly and the right of private defence.—,
"As long as the accused persons exercised their right of private defence, their assembly",
could not be described as unlawful. But only those accused persons who shared the,
object of doing something in excess of the right of private defence were liable to,
conviction with the help of section 149.132. Where the accused persons were acting in,
"the exercise of the right of private defence, the Supreme Court said that they could not",
be said to have constituted an unlawful assembly. Only one of them caused an injury,
after the right of private defence had ceased to be available to them. They could not be,
convicted under section 148 with the aid of section 149.133.,
[s 149.9] Overt act on the part of each and every member not necessary.—,
The presence of the accused as a part of the unlawful assembly is sufficient for his,
conviction. The fact that the accused was present at the place of occurrence as a part,
of the unlawful assembly was not disputed. That was held to be sufficient to hold him,
guilty even if no overt act was attributed to him.134. This principle may not apply where,
the presence is such that merely by its reason the person concerned does not become,
a member of the assembly. This happened in a case in which the names of only 4,
persons were mentioned in the complaint. Five other persons were not mentioned,
because they kept standing at the back without any participation in the incident. But,
they were also roped in under section 149. The Supreme Court held that they could not,
be regarded as members of the assembly. Their conviction was impermissible.135.,
Once a membership of an unlawful assembly is established it is not incumbent on the,
prosecution to establish whether any specific overt act has been assigned to any,
accused. Mere membership of the unlawful assembly is sufficient and every member is,
vicariously liable for the acts done by others either in the prosecution of the common,
object of the unlawful assembly or such as the members of the unlawful assembly,
knew were likely to be committed.136.,
[s 149.10] Inference of common object.—,
"The common object of the unlawful assembly has to be inferred from the membership,",
the weapons used and the nature of the injuries as well as other surrounding,
"circumstances. Intention of members of unlawful assembly can be gathered by nature,",
"number and location of injuries inflicted. In the instant case, repeated gun shots fired",
by one of accused person on the person of deceased and the injuries caused by lathis,
"by other accused persons on the complainant and his second brother on their heads,",
clearly demonstrate the objective to cause murder of these persons.137. Common,
object to commit a murder cannot be inferred only on the basis that the weapons,
carried by the accused were dangerous.138. The common object of assembly is,
normally to be gathered from the circumstances of each case such as the time and,
"place of the gathering of the assembly, the conduct of the gathering as distinguished",
from the conduct of the individual members are indicative of the common object of the,
gathering. Assessing the common object of an assembly only on the basis of the overt,
acts committed by such individual members of the assembly is impermissible.139.,
[s 149.11] Identification of common object.—,
The identification of the common object essentially requires an assessment of the,
state of mind of the members of the unlawful assembly. Proof of such mental,
condition is normally established by inferential logic. If a large number of people gather,
at a public place at the dead of night armed with deadly weapons like axes and fire,
"arms and attack another person or group of persons, any member of the attacking",
group would have to be a moron in intelligence if he did not know murder would be a,
likely consequence.140.,
[s 149.12] No common object.—,
A large body of men belonging to one faction waylaid another body of men belonging,
"to a second faction, and a fight ensued, in the course of which a member of the first",
"mentioned faction was wounded and retired to the side of the road, taking no further",
active part in the affray. After his retirement a member of the second faction was killed.,
It was held that the wounded man had ceased to be a member of the unlawful,
"assembly when he retired wounded, and that he could not, under this section, be made",
liable for the subsequent murder.141. Where the accused persons rushed to the house,
"of K with a view to injure K or inmates of his house but one of the accused attacked M,",
"a woman working in the house causing grievous injuries to her, the other accused",
"persons could not be held vicariously liable with the help of section 149, IPC, 1860, as it",
was not their common object nor had they any animus against M.142. An unlawful,
assembly of 50 persons was alleged to have caused two deaths. There were no,
"specific allegations against some of them, or that any criminal act was done by them in",
furtherance of common intention. It was held that they could not be convicted with the,
aid of either section 34 or section 149.143. When an accused leaves the place of,
"occurrence and thus ceases to be a member of the unlawful assembly, he cannot be",
"convicted vicariously with the aid of section 149, IPC, for the murder which is",
committed subsequent to his leaving the scene of crime.144. Where one member fired,
on being supplied with a bullet by another only the member supplying the bullet was,
held liable under section 302/149 and others were convicted only under section,
"325/194, IPC.145. After a heated exchange of words, the accused went home and came",
back with a gun accompanied by others who also armed and immediately opened fire,
at the victim causing his death. Others did not fire at the victim. They fired,
indiscriminately at others injuring some people. Things happened in a very short span,
of time. It was held that the others could not have formed an unlawful assembly with,
the main accused with a common object. The main culprit alone was convicted of,
murder.146. Where people collected outside a police-station to voice their protest over,
"police- inaction in connection with the murder of a child, such an assembly could not",
"possibly have any common object to commit criminal trespass, arson, looting, etc., and",
"as such none could be convicted with the aid of section 149, IPC, 1860.147. All the",
"accused, armed only with lathis, caused multiple injuries to a man who died. All the",
injuries caused were simple in nature and were on non-vital parts of the body of the,
"deceased, it could not be said that their common object was to kill the deceased. They",
"were held liable to be convicted under section 304, Part II/149 and not under section",
302/149.148.,
Where the common object of an unlawful assembly was to cause hurt to prosecution,
"witnesses, and the daughter of a witness who came out from inside the house only to",
"save her father sustained an injury at the hands of one of the accused and died, it was",
held that there could be no common object in the circumstances to commit murder.,
They were held to be guilty under section 323 read with section 149.149.,
[s 149.13] Unlawful assembly and single witness.—,
"In a case involving an unlawful assembly with a large number of persons, there is no",
rule of law that states that there cannot be any conviction on the testimony of sole,
eyewitness unless that the court is of the view that testimony of such eye witness is,
not reliable. The rule of requirement of more than one witness applies only in a case,
where a witness deposes in a general and vague manner or in the case of a riot.150.,
Direct evidence is generally not available. The existence of common object has to be,
gathered from the act committed and results flowing from them.151.,
"[s 149.14] Conviction for section 302 simpliciter, when the charge was for",
"section 302 read with section 149 of IPC, 1860:",
"The Supreme Court in Nanak Chand v State of Punjab,152. considered the question",
"whether there could be a conviction for the offence under section 302 simpliciter, when",
the charge was for the offence under section 302 read with section 149 of IPC. It was,
held that when there is no separate charge for the offence under section 302 simpliciter,
"and charge is only for the offence under section 302 read with 149, the conviction for",
the offence under section 302 simpliciter is not sustainable. In Suraj Pal v State of,
"UP,153. 19 accused were tried for the offences under sections 148, 307 and 302 read",
with section 149 of IPC. Sessions Court convicted all the accused. In appeal to the,
"High Court, ten accused were acquitted. Conviction and sentence of one accused was",
"affirmed for the offence under sections 148, 307 and 302. Holding that absence of",
"specific charges against the appellant under sections 307 and section 302, IPC in",
respect of which he was sentenced is a very serious lacuna as framing of a specific,
and distinct charge in respect of every distinct head of criminal liability constituting an,
offence is the foundation for a conviction and sentence. The question was referred to,
"the Five Judge Constitution Bench, to determine whether there was a conflict of view",
between Nanak Chand's case (supra) and Suraj Pal's case (supra) and if so to determine,
it in Willie Slaney v State of Madhya Pradesh.154. The Constitution Bench held that there,
was no conflict of views in the two decisions. It was held that the observations in,
"Nanak Chand (supra), have to be appreciated on close examination of facts. Their",
Lordships considered the effect of a charge for constructive liability and its difference,
with a charge for the offence simpliciter and held that there was no prejudice and that,
the conviction is not invalid because of the nature of the charge. A three Judge Bench,
"in Subran v State,155. held that when the charge is under section 302 read with section",
"149 of IPC, without a specific charge having been framed for the offence under section",
"302 of IPC, as envisaged in law, an accused cannot be convicted for the substantive",
"offence under section 302 of IPC, their Lordships did not consider the Constitution",
"Bench decision in Willie Slaney's case (supra). Later in the review judgment, Subran v",
"State, 1993 (3) SCC 722 , their lordships reviewed the same as follows:",
"On a review of the judgment, we find that the opinion expressed is capable of being",
misinterpreted. The opinion expressed therein was required to be confined to the peculiar,
"facts of the case, but it tends to give an impression as if it is a general exposition of law,",
which it was not meant to be.,
The legal position in the light of the Constitution Bench decision in Willie Slaney156. is,
"clear. If the charge framed discloses the overt act committed by a particular accused,",
"though the charge is for the offence under section 302 read with section 149 of IPC,",
"1860, and the accused faced trial with the knowledge that the prosecution case is that",
"he committed the particular overt act which caused the death, non-framing of a distinct",
"charge for the offence under section 302 will not cause prejudice to the accused, even",
"though the charge framed was under section 302 read with section 149, IPC. In such a",
"case, even though the charge is for the offence under section 302 read with section",
149 of IPC and there is not even an alternate charge for the offence under section 302,
"simpliciter, when the charge discloses the overt act by a particular accused which",
"caused the death of the victim, if the evidence establishes that, that particular accused",
"inflicted that particular injury which caused the death, he could definitely be convicted",
for the offence under section 302 simpliciter. Even though there is no specific charge,
for section 302 simpliciter and the charge is for the offence under section 302 read,
"with 149 of IPC, there could be a conviction under section 302 simpliciter.",
[s 149.15] Where no charge framed as substantive offence with aid of either,
section 34 and section 149.—,
Where participation of all the ten accused in the alleged assault on the deceased has,
"been proved by the evidence of witnesses, but no charge insofar as the substantive",
"offence under section 302, IPC, 1860, or under section 307, IPC with the aid of either",
"section 34, IPC and section 149, IPC had been framed and also the evidence on record",
is not sufficient to attribute any specific injury suffered by the deceased to any,
"particular accused, acquittal of the accused of the offences under section 302, IPC or",
"under section 307, IPC is perfectly justified.157.",
[s 149.16] Free fight and overt act.—,
"It has been held by the Supreme Court that in a case involving free fight, a conviction by",
resorting to section 149 is not permissible. No particular accused person can be,
convicted under section 149 unless it can be shown that he caused injuries.158.,
[s 149.17] Sentencing.—,
The presence of the appellant accused and their participation in the incidence was,
"established. Their conviction under section 326 read with sections 149, 148 was",
confirmed. But considering their age and the fact that their participation in the incident,
"was minimal, the sentence of six years R1 was reduced to two years R1, confirming the",
sentence of one year under section 148.159.,
[s 149.18] Group rivalries.—,
"In the case of group rivalries and enmities, there is a general tendency to rope in as",
"many persons as possible as having participated in the assault. In such situations, the",
courts are called upon to be very cautious and sift the evidence with care. Where after,
"a close scrutiny of the evidence, a reasonable doubt arises in the mind of the court with",
"regard to the participation of any of those who have been roped in, the court would be",
"obliged to give the benefit of doubt to them.160. However, when there are eyewitnesses",
including injured witness who fully support the prosecution case and proved the roles,
"of different accused, prosecution case cannot be negated only on the ground that it",
was a case of group rivalry. Group rivalry is double edged sword.161.,
[s 149.19] Inference from dangerous weapon.–,
Common object to commit a murder cannot be inferred only on the basis that the,
weapons carried by the accused were dangerous.162.,
"82. Vinubhai Ranchhodbhai Patel v Rajivbhai Dudabhai Patel, AIR 2018 SC 2472 [LNIND 2018 SC",
300] .,
"83. Sheo Mahadeo Singh v State of Bihar, (1970) 3 SCC 46 ; Lalji v State of UP, 1989 (1) SCC 437",
"[LNIND 1989 SC 26] ; Lakhan Mahto, AIR 1966 SC 1742 [LNIND 1966 SC 61] .",
"84. Vinubhai Ranchhodbhai Patel v Rajivbhai Dudabhai Patel, AIR 2018 SC 2472 [LNIND 2018 SC",
300] .,
"85. Lakhan Mahto, AIR 1966 SC 1742 [LNIND 1966 SC 61] : 1966 Cr LJ 1349 .",
"86. Kuldip Yadav v State of Bihar, 2011 (5) SCC 324 [LNIND 2011 SC 403] : AIR 2011 SC 1736",
[LNIND 2011 SC 403] : 2011 Cr LJ 2640 : (2011) 2 SCC (Cr) 632.,
"87. Roy Fernandes v State of Goa, (2012) 3 SCC 221 [LNIND 2012 SC 86] : 2012 Cr LJ 1542 .",
"88. Vinubhai Ranchhodbhai Patel v Rajivbhai Dudabhai Patel, AIR 2018 SC 2472 [LNIND 2018 SC",
300] .,
"89. Waman v State of Maharashtra, (2011) 7 SCC 295 [LNIND 2011 SC 564] : AIR 2011 (SCW)",
4973 : 2011 Cr LJ 4827 : AIR 2011 SC 3327 [LNIND 2011 SC 564] : (2011) 3 SCC (Cr) 83; Bhudeo,
"Mandal v State of Bihar, (1981) 2 SCC 755 [LNIND 1981 SC 177] : 1981 SCC (Cr) 595, Ranbir",
"Yadav v State of Bihar, (1995) 4 SCC 392 [LNIND 1995 SC 389] : 1995 SCC (Cr) 728, Allauddin",
"Mian v State of Bihar, (1989) 3 SCC 5 [LNIND 1989 SC 236] : 1989 SCC (Cr) 490, Rajendra",
"Shantaram Todankar v State of Maharashtra, (2003) 2 SCC 257 [LNIND 2003 SC 4] : 2003 SCC",
"(Cr) 506 and State of Punjab v Sanjiv Kumar, (2007) 9 SCC 791 [LNIND 2007 SC 797] : (2007) 3",
SCC (Cr) 578.,
"90. Kuldip Yadav v State of Bihar, 2011 (5) SCC 324 [LNIND 2011 SC 403] : AIR 2011 SC 1736",
[LNIND 2011 SC 403] : 2011 Cr LJ 2640 : (2011) 2 SCC (Cr) 632.,
"91. Iqbal v State of UP, AIR 2017 SC 1127 [LNIND 2017 SC 73] .",
"92. Vyas Ram @ Vyas Kahar v State of Bihar, 2014 Cr LJ 50 : (2013) 12 SCC 349 [LNIND 2013 SC",
861] .,
"93. Kattukulangara Madhavan v Majeed, AIR 2017 SC 2004 [LNIND 2017 SC 158] .",
"94. Sunil Balkrishna Bheir v State of Maharashtra, (2007) 14 SCC 598 [LNIND 2007 SC 669] :",
2007 Cr LJ 3277 .,
"95. Munivel v State of TN, 2006 Cr LJ 2133 .",
"96. Hori Lal v State of UP, (2006) 13 SCC 79 [LNIND 2006 SC 1086] : 2007 Cr LJ 1181 . See also",
"State of Punjab v Sanjeev Kumar, (2007) 9 SCC 791 [LNIND 2007 SC 797] : AIR 2007 SC 2430",
"[LNIND 2007 SC 797] ; Purusuram Pandey v State of Bihar, AIR 2004 SC 5068 [LNIND 2004 SC",
"1075] : 2005 SCC (Cr) 113, restatement of ingredients and principle on which the provision is",
based.,
"97. Najabhai Desurbhai Wagh v Valerabhai Deganbhai Vagh, 2017 (1) Crimes 270 (SC), (2017) 3",
SCC 261 [LNIND 2017 SC 46] .,
"98. Vijay Pandurang Thakre v State of Maharashtra, AIR 2017 SC 897 . Gurmail Singh v State of",
"Punjab, 2013 (4) SCC 228 [LNIND 2012 SC 864] : 2013 (2) SCC (Cr) 36; State of Maharashtra v",
"Kashiram, (2003) 10 SCC 434 [LNIND 2003 SC 716] : AIR 2003 SC 3901 [LNIND 2003 SC 716] ,",
"two parts of sections 149 explained and distinguished, the expression ""in prosecution of",
"common object"" and the word ""knew"" in section 149, their meaning also explained. Rajendra",
"Shantaram Todankar v State of Maharashtra, (2003) 2 SCC 257 [LNIND 2003 SC 4] : AIR 2003 SC",
"1110 [LNIND 2003 SC 4] : 2003 Cr LJ 1277 , two clauses of the section explained, inference",
"about knowledge of likelihood of crime, when can be drawn, explained.",
"99. Vijay Pandurang Thakre v State of Maharashtra, AIR 2017 SC 897 .",
"100. Roy Fernandes v State of Goa, 2012 (2) Scale 68 [LNIND 2012 SC 86] : JT 2012 (2) SC 457 :",
AIR 2012 (SCW) 1238 : (2012) 3 SCC 221 [LNIND 2012 SC 86] : 2012 Cr LJ 1542 .,
"101. Gangadhar Behera v State of Orissa, 2002 (8) SCC 381 [LNIND 2002 SC 645] and",
"Bishnaalias BhiswadebMahato v State of WB, 2005 (12) SCC 657 [LNIND 2005 SC 873]",
"102. Barendra Kumar Ghosh, (1924) 52 IA 40 , 52 : 27 Bom LR 148 : 52 Cal 197.",
"103. Aniruddha Mana, (1924) 26 Cr LJ 827 , 829. Where the purpose was to show force and not",
"to cause death, common intention was ruled out and the conviction was converted from under",
"sections 302/34 to one under 302/149, Jai Narain v State of UP, 1995 Cr LJ 2335 (All).",
"104. Sabid Ali, (1873) 20 WR (Cr) 5 : 11 Beng LR 347, approved by the Supreme Court in Mazaji,",
"AIR 1959 SC 572 [LNIND 1958 SC 169] ; Krishnarao, (1903) 5 Bom LR 1023 ; Fatnaya, (1941) 23",
Lah 470.,
"105. Legal Remembrancer, Bengal v Golok Tikadar, (1943) 1 Cal 181 .",
"106. UN Singh v State, (1946) 25 Pat 215.",
"107. Jahiruddin, (1894) 22 Cal 306 , approved by the Supreme Court in Shambhu Nath, AIR 1960",
SC 725 : 1960 Cr LJ 1114 .,
"108. Dalip Singh, AIR 1953 SC 364 [LNIND 1953 SC 61] : 1953 Cr LJ 1465 ; See also Dharam Pal,",
"1975 Cr LJ 1666 : AIR 1975 SC 1917 [LNIND 1975 SC 314] ; State of UP v Ranjha Ram, AIR 1986",
SC 1959 [LNIND 1986 SC 271] : 1986 Cr LJ 1906 : (1986) 4 SCC 99 [LNIND 1986 SC 271] ; Amar,
"Singh v State of Punjab, AIR 1987 SC 826 : 1987 Cr LJ 706 : (1987) 1 SCC 679 , see further",
"Gopeteshwar Nath Ojha v State of Bihar, AIR 1986 SC 1649 : 1986 Cr LJ 1242 . Hoshiar Singh v",
"State of Punjab, AIR 1992 SC 191 [LNIND 1991 SC 568] : 1992 Cr LJ 510 , the acquittal of some",
"would not warrant the acquittal of the rest; Sahebrao Kisan Jadhav v State of Maharashtra, 1992",
"Cr LJ 339 , presence of eight in the course of an assault was established but four were",
"acquitted due to weak evidence, conviction of the rest for unlawful assembly not illegal. The",
"cases of Amar Singh v State of Punjab, AIR 1987 SC 826 ; and Maina Singh v State of Punjab, AIR",
"1976 SC 1084 [LNIND 1976 SC 97] : (1976) 3 SCR 651 [LNIND 1976 SC 97] , were followed by",
"the Supreme Court in K Nagamalleswara Rao v State of AP, 1991 Cr LJ 1365 : AIR 1991 SC 1075",
"[LNIND 1991 SC 150] : (1991) 2 SCC 532 [LNIND 1991 SC 150] , so as to come to the conclusion",
that where all others were acquitted and the evidence against the remaining four was also not,
"reliable as to any overt acts done by them, their conviction was not sustainable. Darshan Singh v",
"State of Punjab, 1990 Cr LJ 2684 : AIR 1991 SC 66 , prosecution theory that an 80-year-old man",
"went in advance to hold the deceased, not acceptable. State of Assam v Bhelu Sheikh, 1989 Cr",
"LJ 879 : AIR 1989 SC 1097 , no evidence to show that the accused caused injury, even dying",
declaration not recorded when the injured lived for seven days. Saudagar Singh v State of,
"Haryana, AIR 1998 SC 28 [LNIND 1997 SC 890] : 1998 Cr LJ 62 , persons not named in the FIR as",
"members of unlawful assembly were let off, the gun wielding accused persons fired gun shots,",
"convicted for murder. Komal v State of HP, AIR 2002 SC 3057 [LNIND 2002 SC 518] , prosecution",
"case of murder with common object proved, conviction. See also Sajjan Sharma v State of Bihar,",
(2011) 2 SCC 206 [LNIND 2011 SC 33] : AIR 2011 SC 632 [LNIND 2011 SC 33] : 2011 Cr LJ 1169,
: (2011) 1 SCC (Cr) 660.,
"109. Birbal Choudhary v State of Bihar, AIR 2017 SC 4866 [LNIND 2017 SC 2898] .",
"110. Bolineedi Venkataramaiah v State of AP, AIR 1994 SC 76 : 1994 Cr LJ 61 : 1994 Supp (3)",
"SCC 732 . Chanda v State of UP, (2004) 5 SCC 141 [LNIND 2004 SC 582] : AIR 2004 SC 2451",
"[LNIND 2004 SC 582] : 2004 All LJ 1871 : 2004 Cr LJ 2536 , common object as specified in",
"section 141 must be proved for inflicting constructive liability, but proof of any overt act is not",
"necessary. The court stated consideration for ascertaining common object, when and how it",
comes into existence and when it becomes modified or abandoned. Madan Singh v State of,
"Bihar, (2004) 4 SCC 622 [LNIND 2004 SC 427] : AIR 2004 SC 3317 [LNIND 2004 SC 427] . Dani",
"Singh v State of Bihar, 2004 Cr LJ 3328 , there must be common object as stated in section 141",
"and person actuated by it. Charan Singh v State of UP, (2004) 4 SCC 205 [LNIND 2004 SC 308] :",
AIR 2004 SC 2828 [LNIND 2004 SC 308] .,
"111. Rudrappa Ramappa Jainpur v State of Karnataka, (2004) 7 SCC 422 [LNIND 2004 SC 738] :",
"AIR 2004 SC 4148 [LNIND 2004 SC 738] . Amzad Ali v State of Assam, 2003 Cr LJ 3545 : (2003)",
"6 SCC 270 [LNIND 2003 SC 570] , applicability in the context of section 302.",
"112. Shyam Singh v State of UP, 1992 Cr LJ 1632 (All). Ram Dhani v State, 1997 Cr LJ 2286 (All)",
"dispute over land, complainant party resorted to cutting crop grown by the accused party. The",
latter were more than five in number and assembled to prevent the cutting. The court held that,
they could not be said to form an unlawful assembly.,
"113. Raj Nath v State of UP, AIR 2009 SC 1422 [LNIND 2009 SC 59] : (2009) 4 SCC 334 [LNIND",
2009 SC 59] : (2009) 1 SCR 336 : JT 2009 (1) SC 373 [LNIND 2009 SC 85] : (2009) 2 SCC (Cr),
289.,
"114. Gangadhar Behera v State of Orissa, 2003 Cr LJ 41 : AIR 2002 SC 3633 [LNIND 2002 SC",
"645] . Chanda v State of UP, (2004) 3 SCC 141 : AIR 2004 SC 2836 [LNIND 2004 SC 1556] , the",
"expression ""in prosecution of common object"" and the word ""knew"" as used in section 149 were",
explained and distinguished.,
"115. Jagdeo Singh, 1981 Cr LJ 166 : AIR 1981 SC 648 .",
"116. Jit Singh v State, (1957) Pun 950; Mizaji, (1959) Supp (1) SCR 940 : AIR 1959 SC 572",
"[LNIND 1958 SC 169] : 1959 Cr LJ 777 . Satbir Singh v State of UP, (2009) 13 SCC 790 [LNIND",
2009 SC 450] : AIR 2009 SC 2163 [LNIND 2009 SC 450] : (2009) 3 All LJ 786; Ashok Kumar v,
"State of TN, 2006 Cr LJ 2931 : AIR 2006 SC 2419 [LNIND 2006 SC 360] : (2006) 10 SCC 157",
[LNIND 2006 SC 360] .,
"117. Ibid, and see Lalji v State of UP, AIR 1989 SC 754 [LNIND 1989 SC 26] : (1989) 1 SCR 130",
"[LNIND 1989 SC 26] : 1989 Cr LJ 850 , the members cannot be acquitted only because of lack of",
"evidence of precise participation. Earlier to this, in Ram Bilas Singh v State of Bihar, 1964 (1) Cr",
"LJ 573 : (1963) 1 SCWR 743 : (1964) 1 SCR 775 [LNIND 1963 SC 22] , the Supreme Court",
"observed: ""It is true that in order to convict persons vicariously under section 34 or section 149",
"it is not necessary to prove that each and every one of them had indulged in overt acts. Even so,",
there must be material to show that the overt act or acts of one or more was or were done in,
furtherance of the common intention of all the accused or in prosecution of the common object,
of the members of the unlawful assembly. Following this and the above cited Supreme Court,
"cases in Nagina Sharma v State of Bihar, 1991 Cr LJ 1195 , the Patna High Court held that the",
gang of persons who came fully armed to capture a booth and to prevent voters from voting and,
causing eight deaths in the process were all responsible for the deaths in question. See at pp,
1231–1233.,
"118. Allauddin Mian v State of Bihar, AIR 1989 SC 1456 [LNIND 1989 SC 236] : 1989 Cr LJ 1466 .",
"Ramappa Halappa Pujar v State of Karnataka, (2007) 13 SCC 31 [LNIND 2007 SC 561] , the fact",
of benefit of doubt to some accused person could not give advantage to others on whose part,
some other act was evident.,
"119. Vithal Bhimshah Koli v State of Maharashtra, AIR 1983 SC 179 [LNIND 1982 BOM 340] :",
"1983 Cr LJ 340 : (1983) 1 SCC 431 . See also Jawahar v State of UP, AIR 1991 SC 273 : 1991 Cr",
"LJ 376 , equal conviction of the accused who was only holding the deceased by the neck while",
others struck.,
"120. Suratlal v State of MP, AIR 1982 SC 1224 [LNIND 1980 SC 121] : 1982 Cr LJ 1577 : (1982) 1",
"SCC 488 [LNIND 1980 SC 121] . Mohamed Arif v State of Gujarat, AIR 1997 SC 105 [LNIND 1996",
SC 1604] : 1997 Cr LJ 65 ; conviction of all the accused except one who was not identified by,
"the eye-witness and given benefit of doubt. Ganga Singh v State of UP, 2000 Cr LJ 1695 (All),",
"unlawful assembly, fodder belonging to informant burnt, death ensued from lathi blows, incident",
21 years old. Accused persons grew into men of 55–60 years. They were sentenced to three,
"years RI and fine of Rs. 5,000 each. Vikram v State of Maharashtra, (2007) 12 SCC 332 [LNIND",
2007 SC 617] : (2008) 1 SCC (Cr) 362 : AIR 2007 SC 1893 [LNIND 2007 SC 617] : 2007 Cr LJ,
"3193 , whether in a given case common object has been made out depends upon facts and",
"circumstances, conduct of the parties and the manner in which the occurrence had taken place",
has some bearing on the question.,
"121. Bhimrao v State of Maharashtra, (2003) 3 SCC 37 [LNIND 2003 SC 167] : AIR 2003 SC 1493",
[LNIND 2003 SC 167] : 2003 Cr LJ 1204 .,
"122. Raju v State of Rajasthan, 2013 (2) SCC 233 [LNIND 2013 SC 25] : 2013 Cr LJ 1248 (SC).",
"See also Shyam Babu v State of UP, JT 2012 (8) SC 377 [LNIND 2012 SC 536] : AIR 2012 (SCW)",
4846 : (2012) 8 SCC 651 [LNIND 2012 SC 536] : AIR 2012 SC 3311 [LNIND 2012 SC 536] : 2012,
Cr LJ 4550 : 2012 (8) Scale 535 [LNIND 2012 SC 536] .,
"123. Hari Singh, (1878) 3 CLR 49 . Haricharan v State of Rajasthan, AIR 1998 SC 244 [LNIND",
"1997 SC 1350] : 1998 Cr LJ 398 , accused appeared armed with weapons. They stopped the",
"bus, put the gun on the chest of the driver threatening him if he tried to move. They caught hold",
of the deceased. One of them fired two shots and the other attacked with his weapon. Their,
conviction under section 300 read with section 149 was held to be proper. Mahantappa v State,
"of Karnataka, AIR 1999 SC 314 [LNIND 1998 SC 1018] : 1999 Cr LJ 450 , the accused persons",
"assaulted their victim with a sword, threw his body into a hut and set it on fire. Their conviction",
under section 300 read with section 149 was held to be proper. Some others who were also,
"tried with them did not seem to have been members, they could have been bystanders. They",
"were given the benefit of doubt. Bhagwan Singh v State of UP, (1992) 4 SCC 85 , the accused",
"persons were on inimical terms with the complainant party, came to the spot armed with deadly",
"weapons and attacked claiming three lives, it was held that they shared common object.",
"Rachapalliabulu v State of AP, (2002) 4 SCC 208 [LNIND 2002 SC 267] : 2000 Cr LJ 2527 : AIR",
"2002 SC 1805 [LNIND 2002 SC 267] , assailants came together as fully armed, caused two",
"deaths, held to have shared common object. Pratapaneni Ravi Kumar v State of AP, AIR 1997 SC",
"2810 [LNIND 1997 SC 892] : 1997 Cr LJ 3505 , all those who assaulted the victim were members",
"of unlawful assembly and death was caused in prosecution of common object, all of them guilty",
irrespective of the fact whether they had participated in beating the deceased. State of,
"Rajasthan v Ani, AIR 1997 SC 1023 [LNIND 1997 SC 35] , armed accused person killed two and",
"attempted to cause one more death, they were earlier involved in other riots. Conviction, but two",
accused were acquitted because evidence showed no connection with the incident. Satbir v,
"Surat Singh, AIR 1997 SC 1160 : (1997) 4 SCC 192 , two accused persons, though present, could",
"not be said with certainty to have shared the common intention to commit murder, benefit of",
"doubt. Siddique v State of UP, 1998 Cr LJ 3829 (All), unlawful assembly causing death in",
"business rivalry, conviction. State of Rajasthan v Nathu, (2003) 5 SCC 537 [LNIND 2003 SC 479] ,",
"murder, vicarious liability.",
"124. Muthu Naicker v State of WB, 1978 Cr LJ 1713 : AIR 1978 SC 1647 [LNIND 1978 SC 188] .",
"From numbers, situs and nature of wounds it could be hold that all five accused persons had",
"definite intention to commit murder of victim. State of Assam v Golbar Hussain, 2012 Cr LJ 4649",
(Gau).,
"125. Kartar Singh v State of Punjab, AIR 1996 SC 1406 [LNIND 1996 SC 307] : 1996 Cr LJ 1722 .",
"In Ramesh v State of Haryana, AIR 2011 SC 169 [LNIND 2010 SC 1016] : 2011 Cr LJ 80 : (2010)",
"12 SCR 799 : (2010) 13 SCC 409 [LNIND 2010 SC 1016] : (2011) 1 SCC (Cr) 1176, the evidence",
"show that the appellants variously armed, including the firearms assembled at one place and,",
"thereafter, came to the place of occurrence and started assault together and when protested by",
"the deceased, one of the members of the unlawful assembly shot the deceased dead and some",
"of them caused injury by firearm, gandasa, lathi, etc., to others. All of them have come and left",
the place of occurrence together. Appellant held to be members of the unlawful assembly and,
offence have been committed in pursuance of the common object. Each of them shall be liable,
for the offence committed by any other member of the assembly. Also see Ranjit Singh v State of,
"MP, AIR 2011 SC 255 [LNIND 2010 SC 1057] : 2011 Cr LJ 283 : (2011) 4 SCC 336 [LNIND 2010",
SC 1057] : (2011) 2 SCC (Cr) 227.,
"126. C Chellappan, 1979 Cr LJ 1335 : AIR 1979 SC 1761 .",
"127. Asharfi Lal v State of UP, AIR 1987 SC 1721 [LNIND 1987 SC 346] : 1987 Cr LJ 1885 : (1987)",
"3 SCC 224 [LNIND 1987 SC 346] . See also Lalji Singh v State of UP, AIR 1985 SC 1266 : 1985 Cr",
"LJ 1488 , charges under sections 302, 147, 148 and 149; and Dalip Singh v State of UP, 1985 SCC",
"(Cr) 486 : 1985 Supp SCC 471 : AIR 1986 SC 316 , charges under the same sections,",
"established. Kishan Singh v State of Rajasthan, 1995 Cr LJ 2027 (Raj), circumstances of the case",
"established unlawful assembly as well as common object. Poonma Ram v State of Rajasthan,",
"1995 Cr LJ 359 (Raj), unlawful assembly, death caused, but requisite intention for murder not",
"proved, conviction for culpable homicide and for forming unlawful assembly. Luku Pulke v State",
"of Orissa, 1995 Cr LJ 1207 (Ori), acquittal because of contradictory statements of witnesses as",
"to participation. Gajanan v State of Maharashtra, 1996 Cr LJ 2887 : AIR 1996 SC 3332 , the",
"accused persons caused death by assault and beating, also beating others who came to rescue,",
showed common object of causing death.,
"128. Sheikh Ajyub v State of Maharashtra, 1995 Cr LJ 420 : 1994 Supp (2) SCC 269 .",
"129. Joseph v State of Karnataka, 1993 Cr LJ 3538 : 1993 AIR SCW 2900. State of UP v Man",
"Singh, AIR 2003 SC 62 [LNIND 2002 SC 657] , seven persons were variously armed, they",
attacked and killed their victim whose severed body was thrown by them into river. The,
witnesses recovered the body immediately after the attackers left. This established their,
presence at the spot. The reversal of conviction by the High Court because of poor visibility,
"caused by fog was held to be improper. Shrawan Bhadaji Bhirad v State of Maharashtra, AIR 2003",
"SC 199 [LNIND 2002 SC 701] : 2003 Cr LJ 398 , seven persons armed with swords, attacked",
"their victim causing multiple injuries which were found to be sufficient to cause death, but saved",
by a team of doctors. Conviction of the accused under the section was held to be proper. Alla,
"Chinna Apparao v State of AP, 2003 Cr LJ 17 : AIR 2002 SC 3648 [LNIND 2002 SC 647] , the",
victim was attacked by accused persons who hacked his neck on two sides with coconut,
cutting knives. Eye-witnesses. Conviction under section 300,
"130. Umesh Singh v State of Bihar, AIR 2000 SC 2111 [LNIND 2000 SC 871] : 2000 Cr LJ 3167 .",
"131. Ram Dular Rai v State of Bihar, (2003) 12 SCC 352 [LNIND 2003 SC 1032] : AIR 2004 SC",
"1043 [LNIND 2003 SC 1032] : 2004 Cr LJ 635 ; Chand v State of UP, (2004) 5 SCC 141 [LNIND",
"2004 SC 582] : AIR 2004 SC 2451 [LNIND 2004 SC 582] : 2004 All LJ 1871 : 2004 Cr LJ 2536 ,",
number of convicted persons less than five. Eight persons were named. Two of them held,
pistols. Shot fired but did not hit the victim. The other's shot proved fatal. Unlawful assembly,
was there. Acquittal of some of them on a technical ground did not wipe out application of,
section 149.,
"132. Kashirma v State of MP, (2002) 1 SCC 71 [LNIND 2001 SC 2369] .",
"133. Kashi Ram v State of MP, AIR 2001 SC 2902 [LNIND 2001 SC 2369] ; Siyaram v State of MP,",
"(2009) 4 SCC 792 [LNIND 2009 SC 577] : (2009) 2 SCC (Cr) 602 : 2009 Cr LJ 2071 , statement of",
principles to be followed by the appellate court in considering an appeal against acquittal. See,
"also State of Maharashtra v Tulshiram Bhanudas Kamble, (2007) 14 SCC 627 [LNIND 2007 SC",
3167] : AIR 2007 SC 3042 [LNIND 2007 SC 3167] : (2007) Cr LJ 4319 .,
"134. Yunis v State of MP, AIR 2003 SC 539 [LNIND 2002 SC 784] : 2003 Cr LJ 817 ; Re Ram",
"Pravesh Sharma, 2003 Cr LJ NOC 180 (Jhar) : 2003 AIR Jhar HCR 220.",
"135. State of MP v Mishrilal, 2002 Cr LJ 2312 (SC).",
"136. State of UP v Kishanpal, (2008) 16 SCC 73 [LNIND 2008 SC 1608] . Akbar Sheikh v State of",
"WB, (2009) 7 SCC 415 [LNIND 2009 SC 1106] : (2009) 3 SCC (Cr) 431, rule of prudence should",
be applied. Something more than the persons concerned being cited as accused in a witness,
box would be necessary. The court must have before it some materials to form an opinion that,
"they had shared the common object. Sheo Prasad Bhor v State of Assam, (2007) 3 SCC 120",
"[LNIND 2007 SC 19] : AIR 2007 SC 918 [LNIND 2007 SC 19] : 2007 Cr LJ 1423 , assignment of",
"independent parts to each member not necessary; if one is a member of the assembly, assault",
and death caused by any one of them would make others liable.,
"137. Ganga Ram Sah v State of Bihar, AIR 2017 SC 655 [LNINDU 2017 SC 31] .",
"138. Najabhai Desurbhai Wagh v Valerabhai Deganbhai Vagh, (2017) 3 SCC 261 [LNIND 2017 SC",
46] : 2017 (1) Crimes 270 (SC).,
"139. Vinubhai Ranchhodbhai Patel v Rajivbhai Dudabhai Patel, AIR 2018 SC 2472 [LNIND 2018",
SC 300] .,
"140. Vinubhai Ranchhodbhai Patel v Rajivbhai Dudabhai Patel, AIR 2018 SC 2472 [LNIND 2018",
SC 300] .,
"141. Kabil Singh, (1869) 3 Beng LR (A Cr J) 1. See also State of Gujarat v Bharwad, 1990 Cr LJ",
"2531 (Guj), common object to belabour the members of a particular community, all liable under",
"sections 324 and 326 and not for murder. Teja v State of MP, 1990 Cr LJ 262 , common object to",
"insult, guilty under section 326 and not under section 302 though death was caused. Ramesh",
"Baburao Devaskar v State of Maharashtra, (2008) Cr LJ 372 : (2007) 13 SCC 501 [LNIND 2007 SC",
"1213] , name of only one accused mentioned in the FIR, PWs did not attribute any overt act to",
"the remaining accused persons, thus, there was some substance in the contention that others",
did not share the common object.,
"142. Kshudiram, 1972 Cr LJ 756 : AIR 1972 SC 1221 . See also Bharwad Bhikha Natha, 1977 Cr",
"LJ 1160 : AIR 1977 SC 1768 ; K Neelakanthee, 1978 Cr LJ 780 : AIR 1978 SC 1021 [LNIND 1978",
"SC 55] ; Bhudeo Mondla v State of Bihar, 1981 Cr LJ 725 : AIR 1981 SC 219 : (1981) 2 SCC 755",
[LNIND 1981 SC 177] .,
"143. Jhapsa Kabari v State of Bihar, AIR 2002 SC 312 [LNIND 2001 SC 2762] . Jadu Sahani v",
"State, 1999 Cr LJ 593 : 1999 AIR SCW 3985, no enmity between the conflicting groups, death",
"caused by one of them as an individual act, only he was convicted for murder. State of Punjab v",
"Harjit Singh, AIR 2002 SC 3040 [LNIND 2002 SC 501] , mere participation in the crime with others",
is not sufficient to attribute common object or common intention to one of them of the others,
involved in the incident. One accused person can be made liable criminally for the acts and,
deeds of others only on proof of the subjective elements in common intention by the objective,
test.,
"144. Nawab Ali, 1974 Cr LJ 921 : AIR 1974 SC 1228 [LNIND 1974 SC 117] . See also Ram Anjore,",
"1975 Cr LJ 249 : AIR 1975 SC 185 [LNIND 1975 SC 87] ; Badruddin v State, 1981 Cr LJ 729 : AIR",
1981 SC 1223 .,
"145. Fatte, 1980 Cr LJ 829 : AIR 1979 SC 1504 . In a similar case, the assailant giving the fatal",
"blow was convicted under section 302 but co-accused under sections 326/149, Ram Swarup v",
"State of Haryana, AIR 1993 SC 2436 [LNIND 1993 SC 487] : 1993 Cr LJ 3540 : 1993 Supp (4) SCC",
"344 . Sukhbir Singh v State of Haryana, AIR 2002 SC 1168 [LNIND 2002 SC 134] , a sweeper while",
working in a street happened to throw splashes of mud on the face of the accused. He abused,
the sweeper. The latter's father slapped the accused. He went away threatening and came back,
"with others, but fatal injuries to the sweeper's father were inflicted by him alone, others kept only",
"standing. Held individual act and not a common object: Kajal Sen v State of Assam, AIR 2002 SC",
"617 [LNIND 2002 SC 31] , fatal blows given by main accused. Others could not be convicted for",
offences punishable under section 302 read with sections 148 and 149. Tamaji Govind Misal v,
"State of Maharashtra, AIR 1998 SC 174 [LNIND 1997 SC 1211] : 1998 Cr LJ 340 , the motive of",
the accused party was to remove babul trees from the land of the complainant party whatever,
be the cost and cause injuries which might become necessary. But some of them started,
assaulting immediately on reaching the spot. Others might not have known that the matter,
"would go to the extent of murder, they were punished under sections 326/149 and not 300/149.",
"Atmaram Zongarazi v State of Maharashtra, AIR 1997 SC 3573 [LNIND 1997 SC 1079] : 1997 Cr",
"LJ 4406 , proof showed only one man striking and not others, others acquitted. Chandubhai",
"Malubhai Parmar v State of Gujarat, AIR 1997 SC 1422 [LNIND 1997 SC 627] : 1997 Cr LJ 1909 ,",
"inter-community riot, accused armed with guns causing deaths, convicted under sections",
"300/149, but those who were busy only in burning property could not be convicted with others",
"under section 300/149. Naurangi Mahto v State, 2001 Cr LJ 1525 (Jhar), no common object",
attributed to those who were just only present at the moment and had done no overt act.,
"Incident took place at the spur of the moment. Naththoo Ram v State of UP, 2000 Cr LJ 3870",
"(All), injuries caused with blunt side of the weapon. It could not be said that the common object",
of the unlawful assembly was to cause death. Conviction was altered from under sections,
302/149 to section 326/149.,
"State of UP v Rasid, AIR 2003 SC 1243 [LNIND 2003 SC 295] , accused persons who entered the",
"house and caused death, convicted for murder, but those remained posted outside given benefit",
"of doubt. Basisth Roy v State of Bihar, AIR 2003 SC 1439 [LNIND 2003 SC 162] , witnesses",
"attributed overt act only to two out of 13 accused persons, convicted, others given benefit of",
"doubt and acquitted. Jayantibhai Bhankarbhai v State of Gujarat, AIR 2002 SC 3569 [LNIND 2002",
"SC 565] , five convicted, only one appealed, he was acquitted, the Supreme Court allowed the",
conviction of the non-appealing convicts to stand.,
"146. Parusuram Pandey v State of Bihar, AIR 2004 SC 5068 [LNIND 2004 SC 1075] : (2004) 13",
SCC 189 [LNIND 2004 SC 1075] .,
"147. Mohan Lal, 1982 Cr LJ 1898 (All).",
"148. Sarman v State of MP, AIR 1993 SC 400 : 1993 Cr LJ 63 : 1993 Supp (2) SCC 356 . Where",
"the only common object discovered on evidence was to beat the victim and not to cause death,",
others were held not liable to be convicted for murder but only under section 149/324; Gopa,
"Ram v State of Rajasthan, 1996 Cr LJ 2987 (Raj).",
"149. State of Karnataka v Bhojappa, 1994 Cr LJ 1543 (Kant). See also Anant Kumar v State of MP,",
"AIR 1994 SC 1639 : (1994) 2 Cr LJ 1585 , no specific acts were attributed to two of the accused",
persons who also had no knowledge whether the others carried knives or that they were likely to,
"cause injuries, such two accused acquitted. Bhimrao v State of Maharashtra, 2003 Cr LJ 1204 :",
"AIR 2003 SC 1493 [LNIND 2003 SC 167] , the accused came to the house of the victim with a",
"common object, those who entered the house executed a different, held, their act could not be",
"attributed to those who were standing outside. State of Rajasthan v Sheo Singh, 2003 Cr LJ 1569",
": AIR 2003 SC 1783 [LNIND 2003 SC 231] , a joint project of murder could not be proved. Basisth",
"Roy v State of Bihar, 2003 Cr LJ 1301 : AIR 2003 SC 1439 [LNIND 2003 SC 162] : (2003) 9 SCC 52",
"[LNIND 2003 SC 162] , murder on account of land dispute between the complainant and",
"deceased party, specific overt acts of lathi blows and gun shots were attributed only to two of",
"the accused persons, others could not be convicted for the same because there was no proof of",
"a shared common object to that effect. Bharosi v State of MP, AIR 2002 SC 3299 [LNIND 2002",
"SC 567] , six accused persons armed with lathis attacked the victim, death was due to one head",
"injury attributed to the main accused, others did not intend nor had any knowledge. They were",
held to be not guilty of murder. They were guilty under section 147 for their individual acts.,
"Kishan Pal v State of UP, 2001 Cr LJ 2875 (All), unlawful assembly, eight members of a family",
slaughtered in a day light attack. Witnesses untrustworthy. Acquittal.,
"Cases of no proof.—Baikunth Mahto v State of Bihar, 2003 Cr LJ 2135 (Jhar), the accused",
persons attacked the deceased at midnight while he was asleep along with three other persons.,
Two of them became hostile. The medical report was that death must have been instantaneous,
with injury and so the deceased could not have named anybody. The persons sleeping there,
"could not have identified the assailants because of dark night. Evidence doubtful, acquittal.",
"Sunil Balkrishna Bhoil v State of Maharashtra, (2007) 14 SCC 398 : 2007 Cr LJ 3277 , unlawful",
"assembly originally formed to assault the victim, all of sudden accused two stabbed him",
"causing death, common object held to be not applicable, rest of them guilty of only house",
trespass under section 452. They had been in custody for a long period. They were set at liberty.,
"Munna Chanda v State of Assam, 2006 Cr LJ 1632 : AIR 2006 SC 3555 [LNIND 2006 SC 128] :",
"(2006) 3 SCC 752 [LNIND 2006 SC 128] , prior concert is not required, common object can",
"develop at the spur of the moment, the deceased in this case, on being assaulted, fled, he was",
chased by some members of the party but who gave the fatal blow was not clear. Membership,
of two of the accused could not be proved nor any overt act could be attributed to them. They,
could not have been convicted under sections 302/149.,
"150. Ranjit Singh v State of MP, AIR 2011 SC 255 [LNIND 2010 SC 1057] : 2011 Cr LJ 283 :",
(2011) 4 SCC 336 [LNIND 2010 SC 1057] : (2011) 2 SCC (Cr) 227. See also Jhapsa Kabari v State,
"of Bihar, AIR 2002 SC 312 [LNIND 2001 SC 2762] at p 314, where YK Sabharwal, J explained the",
position of a solitary witness.,
"151. Charan Singh v State of UP, (2004) 4 SCC 205 [LNIND 2004 SC 308] : AIR 2004 SC 2828",
[LNIND 2004 SC 308] .,
"152. Nanak Chand v State of Punjab, AIR 1955 SC 274 [LNIND 1955 SC 3] : 1955 (1) SCR 1201",
[LNIND 1955 SC 3] : 1955 Cr LJ 721 .,
"153. Suraj Pal v State of UP, AIR 1955 SC 419 [LNIND 1955 SC 17] : 1955 (1) SCR 1332 [LNIND",
1955 SC 17] : 1955 Cr LJ 1004 .,
"154. Willie Slaney v State of MP, AIR 1956 SC 116 [LNIND 1955 SC 90] : 1955 (2) SCR 1140",
[LNIND 1955 SC 90] : 1956 Cr LJ 291 .,
"155. Subran v State, 1993 (3) SCC 32 [LNIND 1993 SC 162] : 1993 SCC (Cr) 583 : 1993 Cr LJ",
1387 : 1993 (2) Crimes 15 [LNIND 1993 SC 162] .,
156. (supra).,
"157. State of Rajasthan v Hazi Khan, AIR 2017 SC 4001 .",
"158. Kanwarlal v State of MP, 2003 Cr LJ 62 : AIR 2002 SC 3690 [LNIND 2002 SC 558] .",
"159. Shri Krishan v State of UP, (2007) 15 SCC 557 .",
"160. Eknath Ganpat Aher v State of Maharashtra, (2010) 6 SCC 519 [LNIND 2010 SC 466] .",
"161. Sudha Renukaiah v State of AP, AIR 2017 SC 2124 [LNIND 2017 SC 197] .",
"162. Najabhai Desurbhai Wagh v Valerabhai Deganbhai Vagh, (2017) 3 SCC 261 [LNIND 2017 SC",
46] : 2017 (1) Crimes 270 (SC).,
THE INDIAN PENAL CODE,
CHAPTER VIII OF OFFENCES AGAINST THE PUBLIC TRANQUILLITY,
The offences in this chapter may be classified in the following four groups:—,
I. Unlawful assembly.,
"(1) Being a member of an unlawful assembly (sections 141, 142, 143).",
(2) Joining an unlawful assembly armed with deadly weapons (section 144).,
(3) Joining or continuing in an unlawful assembly knowing it has been commanded,
to disperse (section 145).,
(4) Hiring of persons to join an unlawful assembly (section 150).,
(5) Harbouring persons hired for an unlawful assembly (section 157).,
(6) Being hired to take part in an unlawful assembly (section 158).,
"II. Rioting (sections 146, 147).",
(1) Rioting with deadly weapon (section 148).,
(2) Assaulting or obstructing a public servant in the suppression of a riot (section,
152).,
(3) Wantonly giving provocation with intent to cause riot (section 153).,
(4) Liability of the owner or occupier of land on which an unlawful assembly is held,
or a riot is committed (section 154).,
(5) Liability of the person for whose benefit a riot is committed (section 155).,
(6) Liability of the agent of owner or occupier for whose benefit a riot is committed,
(section 156).,
III. Promoting enmity between different classes (section 153A).,
"IV. Affray (sections 159, 160).",
"[s 150] Hiring, or conniving at hiring, of persons to join unlawful assembly.",
"Whoever hires or engages or employs, or promotes, or connives at the hiring,",
engagement or employment of any person to join or become a member of any,
"unlawful assembly, shall be punishable as a member of such unlawful assembly, and",
for any offence which may be committed by any such person as a member of such,
"unlawful assembly in pursuance of such hiring, engagement or employment, in the",
"same manner as if he had been a member of such unlawful assembly, or himself had",
committed such offence.,
COMMENT—,
This section brings within the reach of the law those who are really the originators and,
instigators of the offences committed by hired persons. It deals with the case of those,
who are neither abettors of nor participators in the offence committed by an unlawful,
assembly.,
"The section creates a specific offence. It intends to embrace all those who hire,",
promote or connive at the employment of persons and render them punishable as,
"principal participators. Under the section, a person, though not actually a member of an",
"unlawful assembly himself, may be held guilty of being a member of the assembly and",
may be held liable for the offence which may be committed by the assembly to the,
same extent as if he had himself committed that offence. But this is possible only,
when it is found that he hired or engaged or employed or promoted or connived at the,
"hiring, engagement or employment by any other person to join or become a member of",
the assembly. There must have been an unlawful assembly which was composed of,
"persons so hired, etc., and an offence committed in the course of that assembly for",
"which he becomes equally liable. The word ""promotes"" denotes acceleration or",
"inducement. Though the word ""employ"" or ""employment"" is used, it does not mean",
recruitment. It would mean calling of the service of the hired person without any,
recruitment as a servant or agent to commit the offence.163.,
"163. Vinit v State of Maharashtra, 1994 Cr LJ 1791 at pp 1804–1805, certain persons, who",
"constituted an unlawful assembly, were hired to eliminate a particular person. The eliminators",
and their procurer were both held equally liable.,
THE INDIAN PENAL CODE,
CHAPTER VIII OF OFFENCES AGAINST THE PUBLIC TRANQUILLITY,
The offences in this chapter may be classified in the following four groups:—,
I. Unlawful assembly.,
"(1) Being a member of an unlawful assembly (sections 141, 142, 143).",
(2) Joining an unlawful assembly armed with deadly weapons (section 144).,
(3) Joining or continuing in an unlawful assembly knowing it has been commanded,
to disperse (section 145).,
(4) Hiring of persons to join an unlawful assembly (section 150).,
(5) Harbouring persons hired for an unlawful assembly (section 157).,
(6) Being hired to take part in an unlawful assembly (section 158).,
"II. Rioting (sections 146, 147).",
(1) Rioting with deadly weapon (section 148).,
(2) Assaulting or obstructing a public servant in the suppression of a riot (section,
152).,
(3) Wantonly giving provocation with intent to cause riot (section 153).,
(4) Liability of the owner or occupier of land on which an unlawful assembly is held,
or a riot is committed (section 154).,
(5) Liability of the person for whose benefit a riot is committed (section 155).,
(6) Liability of the agent of owner or occupier for whose benefit a riot is committed,
(section 156).,
III. Promoting enmity between different classes (section 153A).,
"IV. Affray (sections 159, 160).",
[s 151] Knowingly joining or continuing in assembly of five or more persons,
after it has been commanded to disperse.,
Whoever knowingly joins or continues in any assembly of five or more persons likely,
"to cause a disturbance of the public peace, after such assembly has been lawfully",
"commanded to disperse, shall be punished with imprisonment of either description",
"for a term which may extend to six months, or with fine, or with both.",
Explanation.—If the assembly is an unlawful assembly within the meaning of section,
"141, the offender will be punishable under section 145.",
COMMENT—,
Effect of command to disperse.—Section 145 punishes the continuance in an unlawful,
assembly after it has been commanded to disperse. In this section the assembly need,
not be an 'unlawful assembly' but if it is likely to cause a disturbance of the public,
"peace, then joining or continuing in such assembly after it has been commanded to",
disperse is punishable. Section 129 of the Criminal Procedure Code confers on a,
Magistrate and an officer in charge of a police-station the power to disperse an,
unlawful assembly or any assembly of five or more persons likely to cause a,
"disturbance of the public peace. A bare reading of section 129, Cr PC, 1973, would",
make it abundantly clear that a lawful procession or assembly cannot be regarded as,
likely to cause a breach of the peace when it is admitted that not they but some other,
body of persons is bent on attacking them. Whether an assembly is likely to cause a,
disturbance of public peace has to be judged from its own acts and behaviour and not,
from the behaviour of another hostile group whose physical opposition may cause a,
"breach of the peace.164. ""Thus, if an assembly other than an unlawful assembly",
behaves in such a manner as to provoke a breach of the peace by its own conduct or,
"action, there would be a justification to order it to disperse under the powers given by",
section 129 of the Criminal Procedure Code. But if a religious assembly or procession,
"remains peaceful in the enjoyment of its legitimate rights and privileges under the law,",
it should not be ordered to disperse merely because a body of antagonistic persons,
"take it into their heads to attack it with a view to provoke a riot. In such a case, it is",
rather that body of aggressive persons that constitutes an unlawful assembly and,
"requires to be sternly dealt with under the law"".165. So where a peaceful group of",
persons who were cutting crop on their own land refused to disperse on being,
commanded to do so by an Inspector of Police merely because another hostile group,
"objected to the harvesting of the crop, it was held that as these persons were not",
"commanded lawfully to disperse under section 129, Cr PC, 1973, they could not be",
"convicted under section 151, IPC, 1860.166. In order to bring a case within the mischief",
of this section there must be clear evidence to show that the assembly had been,
"""lawfully commanded"" to disperse. Thus where the police officers in their evidence said",
"that they had merely warned the two warring factions, it could not be said that the",
assembly had been commanded to disperse and as such there was no question of,
"invoking section 151, IPC, to prosecute the members of the assembly.167.",
"164. Yeshwant v State, 34 Cr LJ 705; See also Bealty v Gillbanks, (1882) 9 QBD 308 ; Kempe",
"Gowda, 1954 Cr LJ 490 (Mysore).",
"165. R Deb, Principles of Criminology, Criminal Law and Investigation, 2nd Edn, vol II, p 834. See",
"also Re P Abdul Sattar, 1961 (1) Cr LJ 291 (Mysore).",
"166. Kempe Gowda, 1954 Cr LJ 490 (Mysore), supra.",
"167. Komma Neelakantha Reddy v State of AP, AIR 1978 SC 1021 [LNIND 1978 SC 55] : (1978) 2",
SCC 473 [LNIND 1978 SC 55] : 1978 (3) SCR 75 [LNIND 1978 SC 55] : 1978 Cr LJ 780 : (1978) 1,
SCC (Cr) 285.,
THE INDIAN PENAL CODE,
CHAPTER VIII OF OFFENCES AGAINST THE PUBLIC TRANQUILLITY,
The offences in this chapter may be classified in the following four groups:—,
I. Unlawful assembly.,
"(1) Being a member of an unlawful assembly (sections 141, 142, 143).",
(2) Joining an unlawful assembly armed with deadly weapons (section 144).,
(3) Joining or continuing in an unlawful assembly knowing it has been commanded,
to disperse (section 145).,
(4) Hiring of persons to join an unlawful assembly (section 150).,
(5) Harbouring persons hired for an unlawful assembly (section 157).,
(6) Being hired to take part in an unlawful assembly (section 158).,
"II. Rioting (sections 146, 147).",
(1) Rioting with deadly weapon (section 148).,
(2) Assaulting or obstructing a public servant in the suppression of a riot (section,
152).,
(3) Wantonly giving provocation with intent to cause riot (section 153).,
(4) Liability of the owner or occupier of land on which an unlawful assembly is held,
or a riot is committed (section 154).,
(5) Liability of the person for whose benefit a riot is committed (section 155).,
(6) Liability of the agent of owner or occupier for whose benefit a riot is committed,
(section 156).,
III. Promoting enmity between different classes (section 153A).,
"IV. Affray (sections 159, 160).",
"[s 152] Assaulting or obstructing public servant when suppressing riot, etc.",
"Whoever assaults or threatens to assault, or obstructs or attempts to obstruct, any",
"public servant in the discharge of his duty as such public servant, in endeavouring to",
"disperse an unlawful assembly, or to suppress a riot or affray, or uses, or threatens, or",
"attempts to use criminal force to such public servant, shall be punished with",
"imprisonment of either description for a term which may extend to three years, or with",
"fine, or with both.",
COMMENT—,
Assault or obstruction of public servant.—The last section punished disobedience to,
the order of a public servant commanding an assembly to disperse. This section,
punishes more severely persons who assault a public servant endeavouring to disperse,
an unlawful assembly. It is intended to prevent the use of force on a public servant in,
order to prevent him from discharging his duty.,
THE INDIAN PENAL CODE,
CHAPTER VIII OF OFFENCES AGAINST THE PUBLIC TRANQUILLITY,
The offences in this chapter may be classified in the following four groups:—,
I. Unlawful assembly.,
"(1) Being a member of an unlawful assembly (sections 141, 142, 143).",
(2) Joining an unlawful assembly armed with deadly weapons (section 144).,
(3) Joining or continuing in an unlawful assembly knowing it has been commanded,
to disperse (section 145).,
(4) Hiring of persons to join an unlawful assembly (section 150).,
(5) Harbouring persons hired for an unlawful assembly (section 157).,
(6) Being hired to take part in an unlawful assembly (section 158).,
"II. Rioting (sections 146, 147).",
(1) Rioting with deadly weapon (section 148).,
(2) Assaulting or obstructing a public servant in the suppression of a riot (section,
152).,
(3) Wantonly giving provocation with intent to cause riot (section 153).,
(4) Liability of the owner or occupier of land on which an unlawful assembly is held,
or a riot is committed (section 154).,
(5) Liability of the person for whose benefit a riot is committed (section 155).,
(6) Liability of the agent of owner or occupier for whose benefit a riot is committed,
(section 156).,
III. Promoting enmity between different classes (section 153A).,
"IV. Affray (sections 159, 160).",
[s 153] Wantonly giving provocation with intent to cause riot—.,
"Whoever malignantly,1 or wantonly,2 by doing anything which is illegal, gives",
provocation to any person intending or knowing it to be likely that such provocation,
"will cause the offence of rioting to be committed, shall, if the offence of rioting be",
"committed in consequence of such provocation, be punished with imprisonment of",
"either description for a term which may extend to one year, or with fine, or with both;",
if rioting be committed;if not committed.,
"and if the offence of rioting be not committed, with imprisonment of either",
"description for a term which may extend to six months, or with fine, or with both.",
COMMENT—,
"Provocation for rioting.—A person, who maliciously or recklessly gives provocation to",
another by doing an illegal act knowing that such provocation will incite the other to,
"rioting, is punishable under this section. The offence under this section involves some",
act of origination of a riot by doing an illegal act infuriating to the feelings of those who,
"ultimately come to riot. The expression ""gives provocation"" connotes such idea. This",
section is intended to apply to such provocative words or acts as do not amount,
directly to instigation or abetment.168. A mere chance provocation is not sufficient to,
justify conviction under this section.169. The section is divided into two parts. If rioting,
is committed the punishment is more severe.,
[s 153.1] Essential Ingredients:,
"(a) The 'act' imputed against the accused is illegal,",
"(b) He has done such act malignantly or wantonly, and,",
(c) He has given provocation to any person intending or knowing that such,
provocation will cause the offence of rioting.170.,
1. 'Malignantly'.— implies a sort of general malice.171. The adverbs 'maliciously' and,
"'malignantly' are synonymous. Malice is not, as in ordinary speech, only an expression",
"of hatred or ill-will to an individual, but means an unlawful act done intentionally",
without just cause or excuse.172. Malignant means extreme malevolence or enmity;,
violently hostile or harmful.,
"2. 'Wantonly'.— means recklessly, thoughtlessly, without regard for right or",
"consequences. This word gives to the offence contained in this section a far larger,",
"vaguer and more comprehensive scope, than would be implied by the word",
"'malignantly' standing alone. It occurs only in this section of the Code, while the word",
'malignantly' occurs once again in section 270.,
[s 153.2] CASES.—,
"The affixing of the poster exhorting for boycotting the election, even if it is",
"objectionable, is not sufficient to show that by such affixture provocation is given to any",
person for causing the offence of rioting. Howsoever deplorable be the act of affixing,
"the poster, to constitute the offence under section 153 of IPC, 1860, over and above the",
"provocation that is likely to give cause for rioting, it has to be shown that the act —",
affixing of the poster —is illegal.173.,
Where the accused wrote a pamphlet in praise of a person who was opposed to the,
"High Priest of the Borah community in certain matters, but his real intention appeared",
"to be to show a grave insult to the High Priest, an insult which was likely to inflame the",
"feelings of the followers of the High Priest and to lead to a riot, it was held that he was",
guilty under this section.174. Where a bride and bridegroom belonging to depressed,
classes rode in palanquins through a village in spite of the protests of high caste,
"Hindus, it was held that this was not an illegal act for which they could be convicted",
under this section.175. Where the accused unfastened the string of the National flag,
"after flag-hoisting ceremony and tried to trample on it, it was held that the accused was",
guilty under this section as the act of the accused was deliberately insulting to the flag,
and thereby the accused intended to wound the feelings and sentiments of the other,
persons present.176.,
"168. Ahmed Hasham, (1932) 35 Bom LR 240 , 57 Bom 329.",
"169. Dr RC Chowala, AIR 1966 Ori 192 [LNIND 1965 ORI 73] . Aroon Purie v HL Varma, 1999 Cr LJ",
"983 (Bom), in a debate on secularism, remarks were passed by some speakers touching",
sentiments of others. It was held that a true publication of such remarks would not come within,
"the ambit of section 153, though they might constitute defamation. See also Baragur Ram",
"Chandrappa v State of Karnataka, 1998 Cr LJ 3639 (Kant—DB).",
"170. Raju Thomas @ John Thomas v State, 2012 Cr LJ (NOC) 240 (Ker) : 2012 (4) Ker LT 499 ;",
"See also Manzar Sayeed Khan v State of Maharashtra, (2007) 5 SCC 1 [LNIND 2007 SC 437] : AIR",
2007 SC 2074 [LNIND 2007 SC 437] : 2007 Cr LJ 2959 .,
"171. Kahanji, (1893) 18 Bom 758, 775.[2012 Cr LJ (NOC) 240 (Ker) : 2012 (4) Ker LT 499 ].",
"172. Bromage v Prosser, (1825) 4 B&C 247. [ 2012 Cr LJ (NOC) 240 (Ker) : 2012 (4) Ker LT 499 ].",
"173. Advocate Manuel PJ v State, 2012 (4) Ker LT 708 . See also Raju Thomas @ John Thomas v",
"State, 2012 Cr LJ (NOC) 240 (Ker) : 2012 (4) Ker LT 499 .",
"174. Rahimatalli Mahomedalli, (1919) 22 Bom LR 166 .",
"175. Jasnami, (1936) 58 All 934 .",
"176. Indra Singh v State, AIR 1962 MP 292 [LNIND 1957 MP 82] . Rajendra v State of Rajasthan,",
2006 Cr LJ 173 (Raj).,
THE INDIAN PENAL CODE,
CHAPTER VIII OF OFFENCES AGAINST THE PUBLIC TRANQUILLITY,
The offences in this chapter may be classified in the following four groups:—,
I. Unlawful assembly.,
"(1) Being a member of an unlawful assembly (sections 141, 142, 143).",
(2) Joining an unlawful assembly armed with deadly weapons (section 144).,
(3) Joining or continuing in an unlawful assembly knowing it has been commanded,
to disperse (section 145).,
(4) Hiring of persons to join an unlawful assembly (section 150).,
(5) Harbouring persons hired for an unlawful assembly (section 157).,
(6) Being hired to take part in an unlawful assembly (section 158).,
"II. Rioting (sections 146, 147).",
(1) Rioting with deadly weapon (section 148).,
(2) Assaulting or obstructing a public servant in the suppression of a riot (section,
152).,
(3) Wantonly giving provocation with intent to cause riot (section 153).,
(4) Liability of the owner or occupier of land on which an unlawful assembly is held,
or a riot is committed (section 154).,
(5) Liability of the person for whose benefit a riot is committed (section 155).,
(6) Liability of the agent of owner or occupier for whose benefit a riot is committed,
(section 156).,
III. Promoting enmity between different classes (section 153A).,
"IV. Affray (sections 159, 160).",
177.[[s 153A] Promoting enmity between different groups on grounds of,
"religion, race, place of birth, residence, language, etc., and doing acts",
prejudicial to maintenance of harmony.,
(1) Whoever—,
"(a) by words, either spoken or written, or by signs or by visible",
"representations or otherwise, promotes or attempts to promote, on",
"grounds of religion, race, place of birth, residence, language, caste or",
"community or any other ground whatsoever, disharmony or feelings of",
"enmity, hatred or ill-will between different religious, racial, language or",
"regional groups or castes or communities, or",
(b) commits any act which is prejudicial to the maintenance of harmony,
"between different religious, racial, language or regional groups or",
"castes or communities, and which disturbs or is likely to disturb the",
"public tranquillity, 178.[or]",
"179.[(c) organizes any exercise, movement, drill or other similar activity",
intending that the participants in such activity shall use or be trained,
to use criminal force or violence or knowing it to be likely that the,
participants in such activity will use or be trained to use criminal,
"force or violence, or participates in such activity intending to use or",
be trained to use criminal force or violence or knowing it to be likely,
that the participants in such activity will use or be trained to use,
"criminal force or violence, against any religious, racial, language or",
regional group or caste or community and such activity for any,
reason whatsoever causes or is likely to cause fear or alarm or a,
"feeling of insecurity amongst members of such religious, racial,",
"language or regional group or caste or community,]",
shall be punished with imprisonment which may extend to three,
"years, or with fine, or with both.",
"(2) Offence committed in place of worship, etc.",
Whoever commits an offence specified in sub-section (1) in any place of,
worship or in any assembly engaged in the performance of religious worship or,
"religious ceremonies, shall be punished with imprisonment which may extend",
to five years and shall also be liable to fine.],
COMMENT—,
Promoting enmity.—This section replaces the old section. Sub-section (1)(c) has been,
newly inserted by Act 31 of 1972. This section provides for enhanced punishment for,
offences committed in a place of worship and making offences under this section,
cognisable. Under this section promoting enmity between different groups on grounds,
"such as, place of birth, or residence are included and it also makes promotion of",
disharmony or feelings of ill-will an offence punishable under it. The provision in clause,
(b) of sub-section (1) to the section includes acts prejudicial to the maintenance of,
harmony between different regional groups and sub-section (2) provides for enhanced,
punishment for any offence specified in sub-section (1) when it is committed in a place,
"of worship, etc. With communal and fissiparous tendencies on the increase this section",
has now gained an added importance. The object of section 153-A is to prevent,
breaches of the public tranquillity which might result from excited feelings of enmity,
between classes of people. Absence of malicious intention is a relevant factor to judge,
whether the offence is committed.180.,
"Section 153A of IPC, 1860, covers a case where a person by words, either spoken or",
"written, or by signs or by visible representations or otherwise, promotes or attempts to",
"promote, disharmony or feelings of enmity, hatred or ill-will between different religious,",
"racial, language or regional groups or castes or communities or acts prejudicial to the",
maintenance of harmony or is likely to disturb the public tranquillity. The gist of the,
offence is the intention to promote feelings of enmity or hatred between different,
classes of people. The intention to cause disorder or incite the people to violence is the,
sine qua non of the offence under section 153A of IPC and the prosecution has to prove,
prima facie the existence of mens rea on the part of the accused.181. The intention to,
cause disorder or incite people to violence is the sine qua non of the offence under,
section 153A IPC and the prosecution has to prove the existence of mens rea in order,
"to succeed. In this case, the prosecution has not been able to establish any mens rea",
"on the part of the appellants as envisaged by the provisions of section 153A IPC, by",
their raising casually the slogans a couple of times. The offence under section 153A,
"IPC is, therefore, not made out.182.",
"There must either be the intention to promote such feelings, or such feelings should be",
promoted as the result of words spoken or written. The words promotes or tends to,
promote feelings of enmity are to be read as connoting a successful or unsuccessful,
attempt to promote feelings of enmity. It must be the purpose or parts of the purpose,
"of the accused to promote such feelings, and, if it is no part of his purpose, the mere",
circumstance that there may be a tendency is not sufficient.183. The word classes,
includes any definite and ascertainable class of people. Capitalists do not constitute a,
class within the meaning of this section.184. To bring any body of persons within the,
"description of a class of people, the body of persons must possess a certain degree of",
"importance numerically, and must be ascertained with certainty and distinguished from",
any other class. Every group of persons cannot be designated as a class.185. The,
classes contemplated must be not merely clearly defined and separable but also,
numerous. A small and limited group of Zamindars cannot be regarded as constituting,
"a class.186. Petitioner published a sentence ""Oriya is a younger sister of Bengal"" in his",
book. Subsequently petitioner published an apology in newspaper and deleted the,
controversial statement. In view of this it cannot be said that alleged sentence,
published to defame Oriya language or promote hatred between different linguistic,
groups. Criminal proceeding are quashed.187.,
The police force of the State cannot be brought within the purview of the term,
"""community"".188.",
[s 153A.1] Political Thesis.—,
This section cannot be used even if an article causes or tends to cause hatred or,
enmity between different political classes like the capitalists and the labour class or,
"between persons believing in different forms of Government, e.g., a democratic or",
totalitarian rule. A bare reading of clause (a) of section 153A will show that a person,
"will be guilty under this section only where by words, either spoken or written, he",
promotes or attempts to promote feelings of enmity or hatred between different,
"religious, racial, linguistic groups or castes or communities on grounds of religion, race,",
"language, caste or community, etc., and not otherwise.189. But where the author in the",
guise of presenting a political thesis or historical truth wrote two articles describing the,
Muslims as a basically violent race and further described today's Muslims as the,
"descendants of foul Moghuls rulers who were lustful perverts, rapists and murderers, it",
was held that both the articles promoted feelings of enmity between Hindus and,
"Muslims and came within the mischief of section 153A IPC, 1860, whether or not the",
"Moghuls were really so.190. In fine, this section does not contemplate the penalising of",
"political doctrines, even though of the extreme kind like communism, but only such",
writings as directly promote feelings of hatred or enmity between classes. But if a,
"publication advocates forcible overthrow of all existing social conditions, and aims at",
"promoting class hatred and enmity, it comes under the purview of this section.191.",
1. Historical Account.—If the writing is calculated to promote feelings of enmity or,
"hatred, it is no defence to a charge under section 153-A of IPC, 1860, that the writing",
contains a truthful account of past events or is otherwise supported by good authority.,
Adherence to the strict path of history is not by itself a complete defence to a charge,
under section 153-A. It is no defence to a charge under section 153-A of IPC that the,
writing contains a truthful account of past events or is otherwise supported by good,
authority.192.,
"But it would be no offence if the author adheres to the historical part of his narrative,",
"however unpalatable it may be to the members of the other community, but if he uses",
language which shows malice and is bound to annoy the members of the other,
"community so as to degrade them in the eyes of the other classes, he is promoting",
feelings of enmity and hatred and is liable to be dealt with under this section and,
"section 295- A.193. It is, therefore, important to remember that criminality under section",
153A does not attach to the thing said or done but to the manner in which it is said or,
done. If the words spoken or written are couched in temperate language and do not,
have the tendency to insult the feelings or the deepest religious convictions of any,
"section of the people, penal consequences do not follow.194. This appears also to be",
"the law in England in regard to blasphemous libel. Thus, in Lemon's case Lord Diplock",
observed:,
To publish opinion denying the truth of the established church or even of Christianity itself,
was no longer held to amount to the offence of blasphemous libel so long as such opinions,
"were expressed in temperate language and not in terms of offence, insult or ridicule.195.",
So what is said or written is not so important as how it is said or written or with what,
"intent it is said or written. Where, therefore, the article did not intend or exhibit any",
insult to any religion but read as a whole projected a scholarly historical thesis showing,
as to how in pre-Islamic times the ancient Hindu culture and Hindu religion were in,
"vogue in Arabia and how Islamic culture, religion and art were greatly influenced by",
"Indian culture and religion, it could not be said that the article came within the mischief",
"of section 153A, IPC, 1860, or section 95, Cr PC, 1973. The scope of section 153A, IPC,",
cannot be enlarged to such an extent with a view to thwart history or historical,
events.196.,
Where an article in a newspaper bears a meaning that is calculated to produce hatred,
"and enmity between two classes, the natural inference from the publication of such an",
article is that the person who published it had the malicious intention that it should,
"produce such hatred and enmity.197. A Hindu, who ridicules the Prophet of the",
Mohammedans not out of any eccentricity but in the prosecution of a propaganda,
"started by a class of persons who are not Mohammedans, promotes feelings of enmity",
"and hatred between Hindus and Mohammedans, and is liable to punishment under the",
"section.198. In order to ascertain the intention of the accused, the offending article",
must be read as a whole and the circumstances attending that publication must also,
be taken into account.199.,
"An FIR was filed against the author, publisher and printer of the book ""Shivaji: Hindu",
"King in Islamic India"" on the ground that certain passage were objectionable. This led",
"to blackening of the face of a local scholar, ransacking of a research institute and",
"destruction of manuscripts, etc. The members of the institute had helped the author",
made contributions to enable the author to complete the work. The author was an,
"American professor based in the USA. He tendered apology, by fax and the publishers",
immediately withdrew all the copies from the market. In proceedings against the,
"author, etc., it was held that the book was purely a scholarly pursuit. There was no",
intention or motive to create trouble for the author and others. The State was directed,
not to proceed against them. The Supreme Court explained the gist of the offence,
under the section as follows:,
The gist of the offence under section 153-A is the intention to promote feelings of,
enmity or hatred between different classes of people. The intention to cause disorder,
or incite the people to violence is the sine qua non of the offence under section 153-A,
"IPC, 1860, and the prosecution has to prove prima facie the existence of mens rea on",
the part of the accused. The intention has to be judged primarily by the language of the,
book and the circumstances in which the book was written and published. The matter,
complained of to fall within the ambit of section 153-A must be read as a whole. One,
cannot rely on strongly worded and isolated passage for proving the charge nor indeed,
can one take a sentence here and a sentence there and connect them by a meticulous,
process of inferential reasoning.,
"The effect of the words must be judged from the standards of reasonable, strong-",
"minded, firm and courageous men, and not those of weak and vacillating minds, nor of",
those who scent danger in every hostile point of view. It is the standard of the ordinary,
"reasonable man or as they say in English law ""the man on the top of a Clapham",
"omnibus"".",
"The common feature in both the sections, viz., sections 153-A and 505(2), being",
"promotion of feeling of enmity, hatred or ill-will ""between different"" religious or racial or",
"linguistic or regional groups or castes and communities, it is necessary that at least",
two such groups or communities should be involved. Merely inciting the feeling of one,
community or group without any reference to any other community or group cannot,
attract either of the two sections.200. In State of Maharashtra v Sangharaj Damodar,
"Rupawate,201. the Supreme Court again considered the question whether a notification",
"issued by the Maharashtra Government to forfeit the book ""Shivaji: Hindu King in",
"Islamic India"". It was held that the notification does not identify the communities",
between which the book had caused or is likely to cause enmity. It cannot be found out,
from the notification as to which communities got outraged by the publication of the,
book or it had had caused hatred and animosity between the particular communities or,
groups—statement in the notification to the effect that the book is 'likely to result in,
breach of peace and public tranquillity and in particular between those who revere Shri,
Chhatrapati Shivaji Maharaj and those who may not' is too vague a ground to satisfy the,
aforesaid tests. The order quashing the notification was upheld by the Supreme Court.,
"In Ramesh Chotalal Dalal v UOI,202. the Court held that TV serial ""Tamas"" did not depict",
"communal tension and violence and the provisions of section 153A of IPC, 1860, would",
not apply to it. It was also not prejudicial to the national integration falling under,
"section 153B of IPC. Approving the observations of Vivian Bose, J in Bhagvati Charan",
"Shukla v Provincial Government,203. the Court observed that the effect of the words",
"must be judged from the standards of reasonable, strong-minded, firm and courageous",
"men, and not those of weak and vacillating minds, nor of those who scent danger in",
every hostile point of view. It is the standard of ordinary reasonable man or as they say,
"in English Law, ""the man on the clapham omnibus"". Again in Bilal Ahmed Kaloo v State",
"of AP,204. it was held that the common feature in both the sections, viz., sections 153A",
"and 505 (2), being promotion of feeling of enmity, hatred or ill-will ""between different""",
"religious or racial or linguistic or regional groups or castes and communities, it is",
"necessary that at least two such groups or communities should be involved. Further, it",
was observed that merely inciting the feeling of one community or group without any,
reference to any other community or group cannot attract either of the two sections.,
2. Scurrilous attack on basic religious books.—Section 153A certainly affords,
protection to the basic religious books of all the religions against scurrilous attacks. In,
"Chandanmal Chopra v State of WB,205. it was alleged that the Koran, the basic religious",
book of Muslim religion promotes religious disharmony by advocating destructions of,
"idols, etc., and thereby outrages not only the religious feelings of non-Muslims but also",
"encourages hatred, disharmony, feeling of enmity between different religious",
"communities in India, and the petitioner sought for directing the State of West Bengal",
to forfeit every copy of Koran. It was also alleged that the publication of Koran amounts,
"to commission of offences punishable under sections 153A and 295A of IPC, 1860. In",
support of their contention the petitioners quoted some isolated passages from the,
Koran. In rejecting this contention the High Court of Calcutta held that sections 153A,
and 295A of the Code have no application in the present case. The book is the basic,
text book of the Mohammedans and is held sacred by them like Bible to Christians and,
"Gita, Ramayana and Mahabharata to Hindus. Because of Koran no public tranquillity",
has been disturbed up to now and there is no reason to apprehend such disturbance in,
future. On the other hand the action of the petitioners may be said to have attempted to,
"promote, on grounds of religion, disharmony or feelings of enmity, hatred or ill-will",
"amongst different religions, i.e., Muslims on the one hand and non-Muslims on the",
"other within the meaning of section 153A, IPC, 1860. Forfeiture of Koran would go",
against the Preamble of the Constitution and violate Article 25 of the Constitution,
which guarantees freedom of conscience and religion to one and all.,
"3. Evidence of hatred, etc., not needed.—A Special Bench of the Bombay High Court",
has held that under this section it is not necessary to prove that as a result of the,
"objectionable matter, enmity or hatred was in fact caused between the different",
"classes. Intention to promote enmity or hatred, apart from the writing itself, is not a",
necessary ingredient of the offence. It is enough to show that the language of the,
writing is of a nature calculated to promote feelings of enmity or hatred for a person,
must be presumed to intend the natural consequences of his act. If a writing is,
"calculated to promote feelings of enmity or hatred, it is no defence to a charge under",
this section that the writing contains a truthful account of past events or is otherwise,
supported by good authority. Adherence to the strict path of history is not by itself a,
complete defence to a charge under this section.206.,
"Immediately after the demolition of Babri masjid and violent riots in Bombay, editorials",
appeared in the Marathi newspaper 'Samna' which were in high flown and caustic,
language but were not directed against the Muslim Community as a whole but only,
"against anti-national elements amongst them and also against the attitude of police,",
army and Government. The articles were held to be not coming within the mischief of,
section 153-A and section 153-B.207.,
[s 153A.2] Previous Sanction:,
"Previous sanction under section 196 Cr PC, 1973, is a must before taking cognizance",
"of the offences under section 153 and 153B IPC, 1860.208.",
"177. Subs. by Act 35 of 1969, sec. 2, for section 153A (w.e.f. 4-9-1969). Earlier section 153A",
"was substituted by Act 41 of 1961, sec. 2 (w.e.f. 12-9-1961).",
"178. Ins. by Act 31 of 1972, section 2 (w.e.f. 14-6-1972).",
"179. Ins. by Act 31 of 1972, section 2 (w.e.f. 14-6-1972).",
"180. The Trustees of Safdar Hashmi Memorial Trust v Govt of Nct of Delhi, 2001 Cr LJ 3689 (Del).",
"181. Manzar Sayeed Khan v State of Maharashtra, (2007) 5 SCC 1 [LNIND 2007 SC 437] : AIR",
2007 SC 2074 [LNIND 2007 SC 437] : 2007 Cr LJ 2959 .,
"182. Balwant Singh v State of Punjab, AIR 1995 SC 1785 [LNIND 1995 SC 1420] : (1995) 3 SCC",
214 [LNIND 1995 SC 1420] : (1995) 1 SCC (Cr) 432.,
"183. Ram, (1924) Kant 31. Mens rea is a necessary requirement of this offence. State (Delhi",
"Admn) v Shrikanth Shastri, 1987 Cr LJ 1583 .",
"184. Maniben Kara, (1932) 34 Bom LR 1642 ; Nepal Chandra Bhattacharjya, (1939) 1 Cal 299 .",
"185. Narayan Vasudev Phadke, (1940) 42 Bom LR 861 .",
"186. Banomali Maharana, (1942) 22 Pat 48.",
"187. Express Publications (Madurai) Ltd v State of Orissa, 2006 Cr LJ 2548 (Ori).",
"188. Hardik Bharatbhai Patel v State of Gujarat, 2016 Cr LJ 225 (Guj) : 2015 (4) Crimes 462 (Guj).",
"189. Shiv Kumar, 1978 Cr LJ 701 (All).",
"190. Baburao Patel, 1980 Cr LJ 529 : AIR 1980 SC 763 [LNIND 1980 SC 84] .",
"191. Gautam, (1937) All 69 (SB).",
"192. R V Bhasin v State of Maharashtra, 2012 Cr LJ 1375 (FB) (Bom); Gopal Godse v UOI, AIR",
1971 Bom 56 [LNIND 1969 BOM 50] .,
"193. Harnam Das, (1957) 1 All 528 (FB).",
"194. Azizul Haque, 1980 Cr LJ 448 (SC).",
"195. Rex v Lemon, (1971) 1 All ER 898 .",
"196. Varsha Publications Pvt Ltd v State of Maharashtra, 1983 Cr LJ 1446 (Bom—SB); Nand",
"Kishore Singh v State of Bihar, 1985 Cr LJ 797 (Pat-SB).",
"197. Kanchanlal Chunilal, (1930) 32 Bom LR 585 .",
"198. Shib Sharma, (1941) 16 Luck 674 .",
"199. Ghulam Sarwar, AIR 1965 Pat 393 .",
"200. Manzar Sayeed Khan v State of Maharashtra, (2007) 5 SCC 1 [LNIND 2007 SC 437] : AIR",
"2007 SC 2074 [LNIND 2007 SC 437] : 2007 Cr LJ 2959 ; Sajjan Kumar v CBI, (2010) 9 SCC 368",
"[LNIND 2010 SC 892] : (2010) 3 SCC (Cr) 1371 : (2010) 11 SCR 669 : 2011 AIR (SCW) 3730, Anti-",
"Sikh Riots charges framed against Sajjan Kumar upheld by the SC. In S Khushboo v Kanniammal,",
JT 2010 (4) SC 478 [LNIND 2010 SC 411] : 2010 (4) Scale 462 [LNIND 2010 SC 411] : (2010) 5,
"SCR 322 : 2010 Cr LJ 2828 : AIR 2010 SC 3196 [LNIND 2010 SC 411] : (2010) 2 SCC (Cr) 1299, it",
"is found that section 153A IPC, 1860, have no application to the present case since the",
appellant was not speaking on behalf of one group and the content of her statement was not,
directed against any particular group either.,
"201. State of Maharashtra v Sangharaj Damodar Rupawate, (2010) 7 SCC 398 [LNIND 2010 SC",
1557] : 2010 AIR (SCW) 4960 : (2010) 8 SCR 328 [LNIND 2010 SC 1557] : 2010 Cr LJ 4290 :,
"(2010) 3 SCC (Cr) 401. In Anand Chintamani Dighe v State of Maharashtra, 2002 Cr LJ 8 (Bom),",
the Government of Maharashtra issued notification under section 95(1) of the Code declaring,
"that every copy of the Marathi play entitled ""Mee Nathuram Godse Bolto"" be forfeited to the",
"Government. The notification, inter alia, stated that the play in question contained derogatory",
references towards Mahatma Gandhi and certain communities and was likely to disturb public,
tranquillity and that it was written with a deliberate and malicious intention to outrage the,
"feelings of the followers of Mahatma Gandhi, The publication would be punishable under",
"sections 153-A and 295-A of IPC, 1860. The challenge to the notification was repelled by the",
Bombay High Court.,
"202. Ramesh Chotalal Dalal v UOI, AIR 1988 SC 775 [LNIND 1988 SC 74]",
"203. Bhagvati Charan Shukla v Provincial Government, AIR 1947 Nag 1 .",
"204. Bilal Ahmed Kaloo v State of AP, (1997) 7 SCC 431 [LNIND 1997 SC 1060] .",
"205. Chandanmal Chopra v State of WB, AIR 1986 Cal 104 [LNIND 1985 CAL 180] , 1986 Cr LJ",
182 (Cal).,
"206. Gopal, (1969) 72 Bom LR 871 (SB).",
"207. Joseph Bain D'Souza v State of Maharashtra, 1995 Cr LJ 1316 Bom. The court relied on",
"Varsha Publications Pvt Ltd v State of Maharashtra, 1983 Cr LJ 1446 but distinguished; Babu Rao",
"Patel v State (Delhi Admn), AIR 1980 SC 763 [LNIND 1980 SC 84] : 1980 Cr LJ 529 . Trustees of",
"Safdar Hashmi Memorial Trust v Govt of NCT of Delhi, 2001 Cr LJ 3689 (Del), the object of the",
provision is to prevent breaches of public tranquillity which might result from excited feelings of,
enmity between classes of people. Malicious intention or mens rea has to be proved. Mohd,
"Khalid Hussain v State of AP, 2000 Cr LJ 2949 (AP), offence of promoting enmity between people",
on the ground of religion. There was nothing to show the actual words uttered or acts,
"committed. There were only vague allegations. FIR quashed. Bilal Ahmed Kaloo v State of AP,",
"1997 Cr LJ 4091 : AIR 1997 SC 3483 [LNIND 1997 SC 1060] , inciting the feelings of one group",
"without any reference to another, attracts neither section 153A nor section 505.",
"208. Swaraj Thackeray v State of Jharkhand, 2008 Cr LJ 3780 (Jhar); Shailbhadra Shah v Swami",
"Krishna Bharti, 1981 Cr LJ 113 (Guj).",
THE INDIAN PENAL CODE,
CHAPTER VIII OF OFFENCES AGAINST THE PUBLIC TRANQUILLITY,
The offences in this chapter may be classified in the following four groups:—,
I. Unlawful assembly.,
"(1) Being a member of an unlawful assembly (sections 141, 142, 143).",
(2) Joining an unlawful assembly armed with deadly weapons (section 144).,
(3) Joining or continuing in an unlawful assembly knowing it has been commanded,
to disperse (section 145).,
(4) Hiring of persons to join an unlawful assembly (section 150).,
(5) Harbouring persons hired for an unlawful assembly (section 157).,
(6) Being hired to take part in an unlawful assembly (section 158).,
"II. Rioting (sections 146, 147).",
(1) Rioting with deadly weapon (section 148).,
(2) Assaulting or obstructing a public servant in the suppression of a riot (section,
152).,
(3) Wantonly giving provocation with intent to cause riot (section 153).,
(4) Liability of the owner or occupier of land on which an unlawful assembly is held,
or a riot is committed (section 154).,
(5) Liability of the person for whose benefit a riot is committed (section 155).,
(6) Liability of the agent of owner or occupier for whose benefit a riot is committed,
(section 156).,
III. Promoting enmity between different classes (section 153A).,
"IV. Affray (sections 159, 160).",
177.[[s 153A] Promoting enmity between different groups on grounds of,
"religion, race, place of birth, residence, language, etc., and doing acts",
prejudicial to maintenance of harmony.,
(1) Whoever—,
"(a) by words, either spoken or written, or by signs or by visible",
"representations or otherwise, promotes or attempts to promote, on",
"grounds of religion, race, place of birth, residence, language, caste or",
"community or any other ground whatsoever, disharmony or feelings of",
"enmity, hatred or ill-will between different religious, racial, language or",
"regional groups or castes or communities, or",
(b) commits any act which is prejudicial to the maintenance of harmony,
"between different religious, racial, language or regional groups or",
"castes or communities, and which disturbs or is likely to disturb the",
"public tranquillity, 178.[or]",
"179.[(c) organizes any exercise, movement, drill or other similar activity",
intending that the participants in such activity shall use or be trained,
to use criminal force or violence or knowing it to be likely that the,
participants in such activity will use or be trained to use criminal,
"force or violence, or participates in such activity intending to use or",
be trained to use criminal force or violence or knowing it to be likely,
that the participants in such activity will use or be trained to use,
"criminal force or violence, against any religious, racial, language or",
regional group or caste or community and such activity for any,
reason whatsoever causes or is likely to cause fear or alarm or a,
"feeling of insecurity amongst members of such religious, racial,",
"language or regional group or caste or community,]",
shall be punished with imprisonment which may extend to three,
"years, or with fine, or with both.",
"(2) Offence committed in place of worship, etc.",
Whoever commits an offence specified in sub-section (1) in any place of,
worship or in any assembly engaged in the performance of religious worship or,
"religious ceremonies, shall be punished with imprisonment which may extend",
to five years and shall also be liable to fine.],
COMMENT—,
Promoting enmity.—This section replaces the old section. Sub-section (1)(c) has been,
newly inserted by Act 31 of 1972. This section provides for enhanced punishment for,
offences committed in a place of worship and making offences under this section,
cognisable. Under this section promoting enmity between different groups on grounds,
"such as, place of birth, or residence are included and it also makes promotion of",
disharmony or feelings of ill-will an offence punishable under it. The provision in clause,
(b) of sub-section (1) to the section includes acts prejudicial to the maintenance of,
harmony between different regional groups and sub-section (2) provides for enhanced,
punishment for any offence specified in sub-section (1) when it is committed in a place,
"of worship, etc. With communal and fissiparous tendencies on the increase this section",
has now gained an added importance. The object of section 153-A is to prevent,
breaches of the public tranquillity which might result from excited feelings of enmity,
between classes of people. Absence of malicious intention is a relevant factor to judge,
whether the offence is committed.180.,
"Section 153A of IPC, 1860, covers a case where a person by words, either spoken or",
"written, or by signs or by visible representations or otherwise, promotes or attempts to",
"promote, disharmony or feelings of enmity, hatred or ill-will between different religious,",
"racial, language or regional groups or castes or communities or acts prejudicial to the",
maintenance of harmony or is likely to disturb the public tranquillity. The gist of the,
offence is the intention to promote feelings of enmity or hatred between different,
classes of people. The intention to cause disorder or incite the people to violence is the,
sine qua non of the offence under section 153A of IPC and the prosecution has to prove,
prima facie the existence of mens rea on the part of the accused.181. The intention to,
cause disorder or incite people to violence is the sine qua non of the offence under,
section 153A IPC and the prosecution has to prove the existence of mens rea in order,
"to succeed. In this case, the prosecution has not been able to establish any mens rea",
"on the part of the appellants as envisaged by the provisions of section 153A IPC, by",
their raising casually the slogans a couple of times. The offence under section 153A,
"IPC is, therefore, not made out.182.",
"There must either be the intention to promote such feelings, or such feelings should be",
promoted as the result of words spoken or written. The words promotes or tends to,
promote feelings of enmity are to be read as connoting a successful or unsuccessful,
attempt to promote feelings of enmity. It must be the purpose or parts of the purpose,
"of the accused to promote such feelings, and, if it is no part of his purpose, the mere",
circumstance that there may be a tendency is not sufficient.183. The word classes,
includes any definite and ascertainable class of people. Capitalists do not constitute a,
class within the meaning of this section.184. To bring any body of persons within the,
"description of a class of people, the body of persons must possess a certain degree of",
"importance numerically, and must be ascertained with certainty and distinguished from",
any other class. Every group of persons cannot be designated as a class.185. The,
classes contemplated must be not merely clearly defined and separable but also,
numerous. A small and limited group of Zamindars cannot be regarded as constituting,
"a class.186. Petitioner published a sentence ""Oriya is a younger sister of Bengal"" in his",
book. Subsequently petitioner published an apology in newspaper and deleted the,
controversial statement. In view of this it cannot be said that alleged sentence,
published to defame Oriya language or promote hatred between different linguistic,
groups. Criminal proceeding are quashed.187.,
The police force of the State cannot be brought within the purview of the term,
"""community"".188.",
[s 153A.1] Political Thesis.—,
This section cannot be used even if an article causes or tends to cause hatred or,
enmity between different political classes like the capitalists and the labour class or,
"between persons believing in different forms of Government, e.g., a democratic or",
totalitarian rule. A bare reading of clause (a) of section 153A will show that a person,
"will be guilty under this section only where by words, either spoken or written, he",
promotes or attempts to promote feelings of enmity or hatred between different,
"religious, racial, linguistic groups or castes or communities on grounds of religion, race,",
"language, caste or community, etc., and not otherwise.189. But where the author in the",
guise of presenting a political thesis or historical truth wrote two articles describing the,
Muslims as a basically violent race and further described today's Muslims as the,
"descendants of foul Moghuls rulers who were lustful perverts, rapists and murderers, it",
was held that both the articles promoted feelings of enmity between Hindus and,
"Muslims and came within the mischief of section 153A IPC, 1860, whether or not the",
"Moghuls were really so.190. In fine, this section does not contemplate the penalising of",
"political doctrines, even though of the extreme kind like communism, but only such",
writings as directly promote feelings of hatred or enmity between classes. But if a,
"publication advocates forcible overthrow of all existing social conditions, and aims at",
"promoting class hatred and enmity, it comes under the purview of this section.191.",
1. Historical Account.—If the writing is calculated to promote feelings of enmity or,
"hatred, it is no defence to a charge under section 153-A of IPC, 1860, that the writing",
contains a truthful account of past events or is otherwise supported by good authority.,
Adherence to the strict path of history is not by itself a complete defence to a charge,
under section 153-A. It is no defence to a charge under section 153-A of IPC that the,
writing contains a truthful account of past events or is otherwise supported by good,
authority.192.,
"But it would be no offence if the author adheres to the historical part of his narrative,",
"however unpalatable it may be to the members of the other community, but if he uses",
language which shows malice and is bound to annoy the members of the other,
"community so as to degrade them in the eyes of the other classes, he is promoting",
feelings of enmity and hatred and is liable to be dealt with under this section and,
"section 295- A.193. It is, therefore, important to remember that criminality under section",
153A does not attach to the thing said or done but to the manner in which it is said or,
done. If the words spoken or written are couched in temperate language and do not,
have the tendency to insult the feelings or the deepest religious convictions of any,
"section of the people, penal consequences do not follow.194. This appears also to be",
"the law in England in regard to blasphemous libel. Thus, in Lemon's case Lord Diplock",
observed:,
To publish opinion denying the truth of the established church or even of Christianity itself,
was no longer held to amount to the offence of blasphemous libel so long as such opinions,
"were expressed in temperate language and not in terms of offence, insult or ridicule.195.",
So what is said or written is not so important as how it is said or written or with what,
"intent it is said or written. Where, therefore, the article did not intend or exhibit any",
insult to any religion but read as a whole projected a scholarly historical thesis showing,
as to how in pre-Islamic times the ancient Hindu culture and Hindu religion were in,
"vogue in Arabia and how Islamic culture, religion and art were greatly influenced by",
"Indian culture and religion, it could not be said that the article came within the mischief",
"of section 153A, IPC, 1860, or section 95, Cr PC, 1973. The scope of section 153A, IPC,",
cannot be enlarged to such an extent with a view to thwart history or historical,
events.196.,
Where an article in a newspaper bears a meaning that is calculated to produce hatred,
"and enmity between two classes, the natural inference from the publication of such an",
article is that the person who published it had the malicious intention that it should,
"produce such hatred and enmity.197. A Hindu, who ridicules the Prophet of the",
Mohammedans not out of any eccentricity but in the prosecution of a propaganda,
"started by a class of persons who are not Mohammedans, promotes feelings of enmity",
"and hatred between Hindus and Mohammedans, and is liable to punishment under the",
"section.198. In order to ascertain the intention of the accused, the offending article",
must be read as a whole and the circumstances attending that publication must also,
be taken into account.199.,
"An FIR was filed against the author, publisher and printer of the book ""Shivaji: Hindu",
"King in Islamic India"" on the ground that certain passage were objectionable. This led",
"to blackening of the face of a local scholar, ransacking of a research institute and",
"destruction of manuscripts, etc. The members of the institute had helped the author",
made contributions to enable the author to complete the work. The author was an,
"American professor based in the USA. He tendered apology, by fax and the publishers",
immediately withdrew all the copies from the market. In proceedings against the,
"author, etc., it was held that the book was purely a scholarly pursuit. There was no",
intention or motive to create trouble for the author and others. The State was directed,
not to proceed against them. The Supreme Court explained the gist of the offence,
under the section as follows:,
The gist of the offence under section 153-A is the intention to promote feelings of,
enmity or hatred between different classes of people. The intention to cause disorder,
or incite the people to violence is the sine qua non of the offence under section 153-A,
"IPC, 1860, and the prosecution has to prove prima facie the existence of mens rea on",
the part of the accused. The intention has to be judged primarily by the language of the,
book and the circumstances in which the book was written and published. The matter,
complained of to fall within the ambit of section 153-A must be read as a whole. One,
cannot rely on strongly worded and isolated passage for proving the charge nor indeed,
can one take a sentence here and a sentence there and connect them by a meticulous,
process of inferential reasoning.,
"The effect of the words must be judged from the standards of reasonable, strong-",
"minded, firm and courageous men, and not those of weak and vacillating minds, nor of",
those who scent danger in every hostile point of view. It is the standard of the ordinary,
"reasonable man or as they say in English law ""the man on the top of a Clapham",
"omnibus"".",
"The common feature in both the sections, viz., sections 153-A and 505(2), being",
"promotion of feeling of enmity, hatred or ill-will ""between different"" religious or racial or",
"linguistic or regional groups or castes and communities, it is necessary that at least",
two such groups or communities should be involved. Merely inciting the feeling of one,
community or group without any reference to any other community or group cannot,
attract either of the two sections.200. In State of Maharashtra v Sangharaj Damodar,
"Rupawate,201. the Supreme Court again considered the question whether a notification",
"issued by the Maharashtra Government to forfeit the book ""Shivaji: Hindu King in",
"Islamic India"". It was held that the notification does not identify the communities",
between which the book had caused or is likely to cause enmity. It cannot be found out,
from the notification as to which communities got outraged by the publication of the,
book or it had had caused hatred and animosity between the particular communities or,
groups—statement in the notification to the effect that the book is 'likely to result in,
breach of peace and public tranquillity and in particular between those who revere Shri,
Chhatrapati Shivaji Maharaj and those who may not' is too vague a ground to satisfy the,
aforesaid tests. The order quashing the notification was upheld by the Supreme Court.,
"In Ramesh Chotalal Dalal v UOI,202. the Court held that TV serial ""Tamas"" did not depict",
"communal tension and violence and the provisions of section 153A of IPC, 1860, would",
not apply to it. It was also not prejudicial to the national integration falling under,
"section 153B of IPC. Approving the observations of Vivian Bose, J in Bhagvati Charan",
"Shukla v Provincial Government,203. the Court observed that the effect of the words",
"must be judged from the standards of reasonable, strong-minded, firm and courageous",
"men, and not those of weak and vacillating minds, nor of those who scent danger in",
every hostile point of view. It is the standard of ordinary reasonable man or as they say,
"in English Law, ""the man on the clapham omnibus"". Again in Bilal Ahmed Kaloo v State",
"of AP,204. it was held that the common feature in both the sections, viz., sections 153A",
"and 505 (2), being promotion of feeling of enmity, hatred or ill-will ""between different""",
"religious or racial or linguistic or regional groups or castes and communities, it is",
"necessary that at least two such groups or communities should be involved. Further, it",
was observed that merely inciting the feeling of one community or group without any,
reference to any other community or group cannot attract either of the two sections.,
2. Scurrilous attack on basic religious books.—Section 153A certainly affords,
protection to the basic religious books of all the religions against scurrilous attacks. In,
"Chandanmal Chopra v State of WB,205. it was alleged that the Koran, the basic religious",
book of Muslim religion promotes religious disharmony by advocating destructions of,
"idols, etc., and thereby outrages not only the religious feelings of non-Muslims but also",
"encourages hatred, disharmony, feeling of enmity between different religious",
"communities in India, and the petitioner sought for directing the State of West Bengal",
to forfeit every copy of Koran. It was also alleged that the publication of Koran amounts,
"to commission of offences punishable under sections 153A and 295A of IPC, 1860. In",
support of their contention the petitioners quoted some isolated passages from the,
Koran. In rejecting this contention the High Court of Calcutta held that sections 153A,
and 295A of the Code have no application in the present case. The book is the basic,
text book of the Mohammedans and is held sacred by them like Bible to Christians and,
"Gita, Ramayana and Mahabharata to Hindus. Because of Koran no public tranquillity",
has been disturbed up to now and there is no reason to apprehend such disturbance in,
future. On the other hand the action of the petitioners may be said to have attempted to,
"promote, on grounds of religion, disharmony or feelings of enmity, hatred or ill-will",
"amongst different religions, i.e., Muslims on the one hand and non-Muslims on the",
"other within the meaning of section 153A, IPC, 1860. Forfeiture of Koran would go",
against the Preamble of the Constitution and violate Article 25 of the Constitution,
which guarantees freedom of conscience and religion to one and all.,
"3. Evidence of hatred, etc., not needed.—A Special Bench of the Bombay High Court",
has held that under this section it is not necessary to prove that as a result of the,
"objectionable matter, enmity or hatred was in fact caused between the different",
"classes. Intention to promote enmity or hatred, apart from the writing itself, is not a",
necessary ingredient of the offence. It is enough to show that the language of the,
writing is of a nature calculated to promote feelings of enmity or hatred for a person,
must be presumed to intend the natural consequences of his act. If a writing is,
"calculated to promote feelings of enmity or hatred, it is no defence to a charge under",
this section that the writing contains a truthful account of past events or is otherwise,
supported by good authority. Adherence to the strict path of history is not by itself a,
complete defence to a charge under this section.206.,
"Immediately after the demolition of Babri masjid and violent riots in Bombay, editorials",
appeared in the Marathi newspaper 'Samna' which were in high flown and caustic,
language but were not directed against the Muslim Community as a whole but only,
"against anti-national elements amongst them and also against the attitude of police,",
army and Government. The articles were held to be not coming within the mischief of,
section 153-A and section 153-B.207.,
[s 153A.2] Previous Sanction:,
"Previous sanction under section 196 Cr PC, 1973, is a must before taking cognizance",
"of the offences under section 153 and 153B IPC, 1860.208.",
"177. Subs. by Act 35 of 1969, sec. 2, for section 153A (w.e.f. 4-9-1969). Earlier section 153A",
"was substituted by Act 41 of 1961, sec. 2 (w.e.f. 12-9-1961).",
"178. Ins. by Act 31 of 1972, section 2 (w.e.f. 14-6-1972).",
"179. Ins. by Act 31 of 1972, section 2 (w.e.f. 14-6-1972).",
"180. The Trustees of Safdar Hashmi Memorial Trust v Govt of Nct of Delhi, 2001 Cr LJ 3689 (Del).",
"181. Manzar Sayeed Khan v State of Maharashtra, (2007) 5 SCC 1 [LNIND 2007 SC 437] : AIR",
2007 SC 2074 [LNIND 2007 SC 437] : 2007 Cr LJ 2959 .,
"182. Balwant Singh v State of Punjab, AIR 1995 SC 1785 [LNIND 1995 SC 1420] : (1995) 3 SCC",
214 [LNIND 1995 SC 1420] : (1995) 1 SCC (Cr) 432.,
"183. Ram, (1924) Kant 31. Mens rea is a necessary requirement of this offence. State (Delhi",
"Admn) v Shrikanth Shastri, 1987 Cr LJ 1583 .",
"184. Maniben Kara, (1932) 34 Bom LR 1642 ; Nepal Chandra Bhattacharjya, (1939) 1 Cal 299 .",
"185. Narayan Vasudev Phadke, (1940) 42 Bom LR 861 .",
"186. Banomali Maharana, (1942) 22 Pat 48.",
"187. Express Publications (Madurai) Ltd v State of Orissa, 2006 Cr LJ 2548 (Ori).",
"188. Hardik Bharatbhai Patel v State of Gujarat, 2016 Cr LJ 225 (Guj) : 2015 (4) Crimes 462 (Guj).",
"189. Shiv Kumar, 1978 Cr LJ 701 (All).",
"190. Baburao Patel, 1980 Cr LJ 529 : AIR 1980 SC 763 [LNIND 1980 SC 84] .",
"191. Gautam, (1937) All 69 (SB).",
"192. R V Bhasin v State of Maharashtra, 2012 Cr LJ 1375 (FB) (Bom); Gopal Godse v UOI, AIR",
1971 Bom 56 [LNIND 1969 BOM 50] .,
"193. Harnam Das, (1957) 1 All 528 (FB).",
"194. Azizul Haque, 1980 Cr LJ 448 (SC).",
"195. Rex v Lemon, (1971) 1 All ER 898 .",
"196. Varsha Publications Pvt Ltd v State of Maharashtra, 1983 Cr LJ 1446 (Bom—SB); Nand",
"Kishore Singh v State of Bihar, 1985 Cr LJ 797 (Pat-SB).",
"197. Kanchanlal Chunilal, (1930) 32 Bom LR 585 .",
"198. Shib Sharma, (1941) 16 Luck 674 .",
"199. Ghulam Sarwar, AIR 1965 Pat 393 .",
"200. Manzar Sayeed Khan v State of Maharashtra, (2007) 5 SCC 1 [LNIND 2007 SC 437] : AIR",
"2007 SC 2074 [LNIND 2007 SC 437] : 2007 Cr LJ 2959 ; Sajjan Kumar v CBI, (2010) 9 SCC 368",
"[LNIND 2010 SC 892] : (2010) 3 SCC (Cr) 1371 : (2010) 11 SCR 669 : 2011 AIR (SCW) 3730, Anti-",
"Sikh Riots charges framed against Sajjan Kumar upheld by the SC. In S Khushboo v Kanniammal,",
JT 2010 (4) SC 478 [LNIND 2010 SC 411] : 2010 (4) Scale 462 [LNIND 2010 SC 411] : (2010) 5,
"SCR 322 : 2010 Cr LJ 2828 : AIR 2010 SC 3196 [LNIND 2010 SC 411] : (2010) 2 SCC (Cr) 1299, it",
"is found that section 153A IPC, 1860, have no application to the present case since the",
appellant was not speaking on behalf of one group and the content of her statement was not,
directed against any particular group either.,
"201. State of Maharashtra v Sangharaj Damodar Rupawate, (2010) 7 SCC 398 [LNIND 2010 SC",
1557] : 2010 AIR (SCW) 4960 : (2010) 8 SCR 328 [LNIND 2010 SC 1557] : 2010 Cr LJ 4290 :,
"(2010) 3 SCC (Cr) 401. In Anand Chintamani Dighe v State of Maharashtra, 2002 Cr LJ 8 (Bom),",
the Government of Maharashtra issued notification under section 95(1) of the Code declaring,
"that every copy of the Marathi play entitled ""Mee Nathuram Godse Bolto"" be forfeited to the",
"Government. The notification, inter alia, stated that the play in question contained derogatory",
references towards Mahatma Gandhi and certain communities and was likely to disturb public,
tranquillity and that it was written with a deliberate and malicious intention to outrage the,
"feelings of the followers of Mahatma Gandhi, The publication would be punishable under",
"sections 153-A and 295-A of IPC, 1860. The challenge to the notification was repelled by the",
Bombay High Court.,
"202. Ramesh Chotalal Dalal v UOI, AIR 1988 SC 775 [LNIND 1988 SC 74]",
"203. Bhagvati Charan Shukla v Provincial Government, AIR 1947 Nag 1 .",
"204. Bilal Ahmed Kaloo v State of AP, (1997) 7 SCC 431 [LNIND 1997 SC 1060] .",
"205. Chandanmal Chopra v State of WB, AIR 1986 Cal 104 [LNIND 1985 CAL 180] , 1986 Cr LJ",
182 (Cal).,
"206. Gopal, (1969) 72 Bom LR 871 (SB).",
"207. Joseph Bain D'Souza v State of Maharashtra, 1995 Cr LJ 1316 Bom. The court relied on",
"Varsha Publications Pvt Ltd v State of Maharashtra, 1983 Cr LJ 1446 but distinguished; Babu Rao",
"Patel v State (Delhi Admn), AIR 1980 SC 763 [LNIND 1980 SC 84] : 1980 Cr LJ 529 . Trustees of",
"Safdar Hashmi Memorial Trust v Govt of NCT of Delhi, 2001 Cr LJ 3689 (Del), the object of the",
provision is to prevent breaches of public tranquillity which might result from excited feelings of,
enmity between classes of people. Malicious intention or mens rea has to be proved. Mohd,
"Khalid Hussain v State of AP, 2000 Cr LJ 2949 (AP), offence of promoting enmity between people",
on the ground of religion. There was nothing to show the actual words uttered or acts,
"committed. There were only vague allegations. FIR quashed. Bilal Ahmed Kaloo v State of AP,",
"1997 Cr LJ 4091 : AIR 1997 SC 3483 [LNIND 1997 SC 1060] , inciting the feelings of one group",
"without any reference to another, attracts neither section 153A nor section 505.",
"208. Swaraj Thackeray v State of Jharkhand, 2008 Cr LJ 3780 (Jhar); Shailbhadra Shah v Swami",
"Krishna Bharti, 1981 Cr LJ 113 (Guj).",
THE INDIAN PENAL CODE,
CHAPTER VIII OF OFFENCES AGAINST THE PUBLIC TRANQUILLITY,
The offences in this chapter may be classified in the following four groups:—,
I. Unlawful assembly.,
"(1) Being a member of an unlawful assembly (sections 141, 142, 143).",
(2) Joining an unlawful assembly armed with deadly weapons (section 144).,
(3) Joining or continuing in an unlawful assembly knowing it has been commanded,
to disperse (section 145).,
(4) Hiring of persons to join an unlawful assembly (section 150).,
(5) Harbouring persons hired for an unlawful assembly (section 157).,
(6) Being hired to take part in an unlawful assembly (section 158).,
"II. Rioting (sections 146, 147).",
(1) Rioting with deadly weapon (section 148).,
(2) Assaulting or obstructing a public servant in the suppression of a riot (section,
152).,
(3) Wantonly giving provocation with intent to cause riot (section 153).,
(4) Liability of the owner or occupier of land on which an unlawful assembly is held,
or a riot is committed (section 154).,
(5) Liability of the person for whose benefit a riot is committed (section 155).,
(6) Liability of the agent of owner or occupier for whose benefit a riot is committed,
(section 156).,
III. Promoting enmity between different classes (section 153A).,
"IV. Affray (sections 159, 160).",
209.[s 153-AA] Punishment for knowingly carrying arms in any procession or,
"organising, or holding or taking part in any mass drill or mass training with",
arms.,
Whoever knowingly carries arms in any procession or organizes or holds or takes part,
in any mass drill or mass training with arms in any public place in contravention of,
any public notice or order issued or made under section 144-A of the Code of Criminal,
"Procedure, 1973 (2 of 1974) shall be punished with imprisonment for a term which",
may extend to six months and with fine which may extend to two thousand rupees.,
"Explanation.—""Arms"" means articles of any description designed or adapted as",
"weapons for offence or defence and includes fire - arms, sharp edged weapons, lathis,",
dandas and sticks.],
COMMENT.—,
"Cr PC (Amendment) Act 2005—clause 44.—This clause amends IPC as follows,",
namely:—,
Clause 16 is intended to enable the District Magistrate to prohibit mass drill (or,
"training) with arms in public places. A new section 153-AA is, therefore, being added to",
the Indian Penal Code to prescribe punishment with imprisonment upto six months and,
fine upto two thousand rupees for the contravention of the prohibitory order. [Notes on,
Clauses].,
"209. Ins. by Cr PC (Amendment) Act, 2005 (25 of 2005), section 44(a).",
THE INDIAN PENAL CODE,
CHAPTER VIII OF OFFENCES AGAINST THE PUBLIC TRANQUILLITY,
The offences in this chapter may be classified in the following four groups:—,
I. Unlawful assembly.,
"(1) Being a member of an unlawful assembly (sections 141, 142, 143).",
(2) Joining an unlawful assembly armed with deadly weapons (section 144).,
(3) Joining or continuing in an unlawful assembly knowing it has been commanded,
to disperse (section 145).,
(4) Hiring of persons to join an unlawful assembly (section 150).,
(5) Harbouring persons hired for an unlawful assembly (section 157).,
(6) Being hired to take part in an unlawful assembly (section 158).,
"II. Rioting (sections 146, 147).",
(1) Rioting with deadly weapon (section 148).,
(2) Assaulting or obstructing a public servant in the suppression of a riot (section,
152).,
(3) Wantonly giving provocation with intent to cause riot (section 153).,
(4) Liability of the owner or occupier of land on which an unlawful assembly is held,
or a riot is committed (section 154).,
(5) Liability of the person for whose benefit a riot is committed (section 155).,
(6) Liability of the agent of owner or occupier for whose benefit a riot is committed,
(section 156).,
III. Promoting enmity between different classes (section 153A).,
"IV. Affray (sections 159, 160).",
209.[s 153-AA] Punishment for knowingly carrying arms in any procession or,
"organising, or holding or taking part in any mass drill or mass training with",
arms.,
Whoever knowingly carries arms in any procession or organizes or holds or takes part,
in any mass drill or mass training with arms in any public place in contravention of,
any public notice or order issued or made under section 144-A of the Code of Criminal,
"Procedure, 1973 (2 of 1974) shall be punished with imprisonment for a term which",
may extend to six months and with fine which may extend to two thousand rupees.,
"Explanation.—""Arms"" means articles of any description designed or adapted as",
"weapons for offence or defence and includes fire - arms, sharp edged weapons, lathis,",
dandas and sticks.],
COMMENT.—,
"Cr PC (Amendment) Act 2005—clause 44.—This clause amends IPC as follows,",
namely:—,
Clause 16 is intended to enable the District Magistrate to prohibit mass drill (or,
"training) with arms in public places. A new section 153-AA is, therefore, being added to",
the Indian Penal Code to prescribe punishment with imprisonment upto six months and,
fine upto two thousand rupees for the contravention of the prohibitory order. [Notes on,
Clauses].,
"209. Ins. by Cr PC (Amendment) Act, 2005 (25 of 2005), section 44(a).",
THE INDIAN PENAL CODE,
CHAPTER VIII OF OFFENCES AGAINST THE PUBLIC TRANQUILLITY,
The offences in this chapter may be classified in the following four groups:—,
I. Unlawful assembly.,
"(1) Being a member of an unlawful assembly (sections 141, 142, 143).",
(2) Joining an unlawful assembly armed with deadly weapons (section 144).,
(3) Joining or continuing in an unlawful assembly knowing it has been commanded,
to disperse (section 145).,
(4) Hiring of persons to join an unlawful assembly (section 150).,
(5) Harbouring persons hired for an unlawful assembly (section 157).,
(6) Being hired to take part in an unlawful assembly (section 158).,
"II. Rioting (sections 146, 147).",
(1) Rioting with deadly weapon (section 148).,
(2) Assaulting or obstructing a public servant in the suppression of a riot (section,
152).,
(3) Wantonly giving provocation with intent to cause riot (section 153).,
(4) Liability of the owner or occupier of land on which an unlawful assembly is held,
or a riot is committed (section 154).,
(5) Liability of the person for whose benefit a riot is committed (section 155).,
(6) Liability of the agent of owner or occupier for whose benefit a riot is committed,
(section 156).,
III. Promoting enmity between different classes (section 153A).,
"IV. Affray (sections 159, 160).",
"210.[[s 153B] Imputations, assertions prejudicial to national integration.",
"(1) Whoever, by words either spoken or written or by signs or by visible",
"representations or otherwise,—",
"(a) makes or publishes any imputation that any class of persons cannot, by",
"reason of their being members of any religious,",
"racial, language or regional group or caste or community, bear true faith",
and allegiance to the Constitution of India as by law established or,
"uphold the sovereignty and integrity of India, or",
"(b) asserts, counsels, advises, propagates or publishes that any class of",
"persons shall, by reason of their being members of any religious, racial,",
"language or regional group or caste or community, be denied or",
"deprived of their rights as citizens of India, or",
"(c) makes or publishes any assertion, counsel, plea or appeal concerning",
"the obligation of any class of persons, by reason of their being members",
"of any religious, racial, language or regional group or caste or",
"community, and such assertion, counsel, plea or appeal causes or is",
likely to cause disharmony or feelings of enmity or hatred or ill-will,
"between such members and other persons,",
"shall be punished with imprisonment which may extend to three years,",
"or with fine, or with both.",
"(2) Whoever commits an offence specified in sub-section (1), in any place of",
worship or in any assembly engaged in the performance of religious worship or,
"religious ceremonies, shall be punished with imprisonment which may extend",
to five years and shall also be liable to fine.],
COMMENT—,
Prejudicing national integration.—This section has been newly added by Act 31 of,
1972. This is a cognizable and non-bailable offence.,
[s 153B.1] Sanction for prosecution.—,
The allegation was that of instigating Hindus to convert to Christianity. The Court said,
that the previous sanction of the Central Government was necessary. But it was,
necessary for the court to take cognizance of the offence. The bar of sanction does not,
apply against registration of a criminal case or investigation by a police agency. The,
police asserted the accused and produced him before the Magistrate. The Magistrate,
remanded him to judicial custody. The passing of order of remand did not amount to,
taking of cognizance.211.,
"210. Ins. by Act 31 of 1972, section 2 (w.e.f. 14-6-1972).",
* Effective date yet to be notified.,
"211. State of Karnataka v Pastor P Raju, 2000 Cr LJ 4045 SC.",
THE INDIAN PENAL CODE,
CHAPTER VIII OF OFFENCES AGAINST THE PUBLIC TRANQUILLITY,
The offences in this chapter may be classified in the following four groups:—,
I. Unlawful assembly.,
"(1) Being a member of an unlawful assembly (sections 141, 142, 143).",
(2) Joining an unlawful assembly armed with deadly weapons (section 144).,
(3) Joining or continuing in an unlawful assembly knowing it has been commanded,
to disperse (section 145).,
(4) Hiring of persons to join an unlawful assembly (section 150).,
(5) Harbouring persons hired for an unlawful assembly (section 157).,
(6) Being hired to take part in an unlawful assembly (section 158).,
"II. Rioting (sections 146, 147).",
(1) Rioting with deadly weapon (section 148).,
(2) Assaulting or obstructing a public servant in the suppression of a riot (section,
152).,
(3) Wantonly giving provocation with intent to cause riot (section 153).,
(4) Liability of the owner or occupier of land on which an unlawful assembly is held,
or a riot is committed (section 154).,
(5) Liability of the person for whose benefit a riot is committed (section 155).,
(6) Liability of the agent of owner or occupier for whose benefit a riot is committed,
(section 156).,
III. Promoting enmity between different classes (section 153A).,
"IV. Affray (sections 159, 160).",
"210.[[s 153B] Imputations, assertions prejudicial to national integration.",
"(1) Whoever, by words either spoken or written or by signs or by visible",
"representations or otherwise,—",
"(a) makes or publishes any imputation that any class of persons cannot, by",
"reason of their being members of any religious,",
"racial, language or regional group or caste or community, bear true faith",
and allegiance to the Constitution of India as by law established or,
"uphold the sovereignty and integrity of India, or",
"(b) asserts, counsels, advises, propagates or publishes that any class of",
"persons shall, by reason of their being members of any religious, racial,",
"language or regional group or caste or community, be denied or",
"deprived of their rights as citizens of India, or",
"(c) makes or publishes any assertion, counsel, plea or appeal concerning",
"the obligation of any class of persons, by reason of their being members",
"of any religious, racial, language or regional group or caste or",
"community, and such assertion, counsel, plea or appeal causes or is",
likely to cause disharmony or feelings of enmity or hatred or ill-will,
"between such members and other persons,",
"shall be punished with imprisonment which may extend to three years,",
"or with fine, or with both.",
"(2) Whoever commits an offence specified in sub-section (1), in any place of",
worship or in any assembly engaged in the performance of religious worship or,
"religious ceremonies, shall be punished with imprisonment which may extend",
to five years and shall also be liable to fine.],
COMMENT—,
Prejudicing national integration.—This section has been newly added by Act 31 of,
1972. This is a cognizable and non-bailable offence.,
[s 153B.1] Sanction for prosecution.—,
The allegation was that of instigating Hindus to convert to Christianity. The Court said,
that the previous sanction of the Central Government was necessary. But it was,
necessary for the court to take cognizance of the offence. The bar of sanction does not,
apply against registration of a criminal case or investigation by a police agency. The,
police asserted the accused and produced him before the Magistrate. The Magistrate,
remanded him to judicial custody. The passing of order of remand did not amount to,
taking of cognizance.211.,
"210. Ins. by Act 31 of 1972, section 2 (w.e.f. 14-6-1972).",
* Effective date yet to be notified.,
"211. State of Karnataka v Pastor P Raju, 2000 Cr LJ 4045 SC.",
THE INDIAN PENAL CODE,
CHAPTER VIII OF OFFENCES AGAINST THE PUBLIC TRANQUILLITY,
The offences in this chapter may be classified in the following four groups:—,
I. Unlawful assembly.,
"(1) Being a member of an unlawful assembly (sections 141, 142, 143).",
(2) Joining an unlawful assembly armed with deadly weapons (section 144).,
(3) Joining or continuing in an unlawful assembly knowing it has been commanded,
to disperse (section 145).,
(4) Hiring of persons to join an unlawful assembly (section 150).,
(5) Harbouring persons hired for an unlawful assembly (section 157).,
(6) Being hired to take part in an unlawful assembly (section 158).,
"II. Rioting (sections 146, 147).",
(1) Rioting with deadly weapon (section 148).,
(2) Assaulting or obstructing a public servant in the suppression of a riot (section,
152).,
(3) Wantonly giving provocation with intent to cause riot (section 153).,
(4) Liability of the owner or occupier of land on which an unlawful assembly is held,
or a riot is committed (section 154).,
(5) Liability of the person for whose benefit a riot is committed (section 155).,
(6) Liability of the agent of owner or occupier for whose benefit a riot is committed,
(section 156).,
III. Promoting enmity between different classes (section 153A).,
"IV. Affray (sections 159, 160).",
[s 154] Owner or occupier of land on which an unlawful assembly is held.,
"Whenever any unlawful assembly or riot takes place, the owner or occupier of the land",
"upon which such unlawful assembly is held, or such riot is committed, and any person",
"having or claiming an interest in such land, shall be punishable with fine not",
"exceeding one thousand rupees, if he or his agent or manager, knowing that such",
"offence is being or has been committed, or having reason to believe it is likely to be",
"committed, do not give the earliest notice thereof in his or their power to the principal",
"officer at the nearest police-station, and do not, in the case of his or their having",
"reason to believe that it was about to be committed, use all lawful means in his or",
"their power to prevent it, and, in the event of its taking place, do not use all lawful",
means in his or their power to disperse or suppress the riot or unlawful assembly.,
COMMENT—,
Liability of owner or occupier of land used for unlawful assembly.— Many duties of the,
police are by law imposed on land-holders. The present section proceeds apparently,
"upon a presumption that, in addition to any such duty, the owner or occupier of land is",
"cognizant in a peculiar way of the designs of those who assemble on his land, and is",
"able not only to give the police notice, but also to prevent and to disperse and suppress",
the assembly.212.,
"Section 45 of the Cr PC, 1973, casts upon the owners and occupiers of land the duty of",
preventing a riot on their lands.,
"Knowledge, on the part of the owner or occupier of the land, of the acts or intentions of",
"the agent, is not an essential element of an offence under this section, and he may be",
convicted under it though he may be in entire ignorance of the acts of his agent or,
manager.213. According to some Police Regulations the Police are required to serve a,
"warning notice on the landlord, owner, occupier or his agent or other person claiming",
interest in landed property contemplated in this and the two subsequent sections so,
that they may adopt every means in their power to prevent the unlawful assembly or,
rioting taking place on such property.214. This being a laudable objective there can,
"possibly be no objection to the issuance of such a notice. It should, however, be",
remembered that a police-officer cannot and should not in the name of serving such a,
"notice injunct the owner or occupier, even temporarily, from enjoying his property.215.",
The police have no such power under the law. To make a person cognizant about his,
duties under the law is one thing and to restrain the owner from enjoying his property is,
entirely a different thing.,
212. M&M 128.,
"213. Kazi Zeamuddin Ahmed, (1901) 28 Cal 504 ; Payag Singh, (1890) 12 All 550 .",
"214. Rule 252, Bengal Police Regulations, vol I 1943, p 108.",
"215. MK Ibrahim, 1979 Cr LJ 175 (Kant); Indu Bhushan v State, 1995 Cr LJ 1180 (Cal).",
THE INDIAN PENAL CODE,
CHAPTER VIII OF OFFENCES AGAINST THE PUBLIC TRANQUILLITY,
The offences in this chapter may be classified in the following four groups:—,
I. Unlawful assembly.,
"(1) Being a member of an unlawful assembly (sections 141, 142, 143).",
(2) Joining an unlawful assembly armed with deadly weapons (section 144).,
(3) Joining or continuing in an unlawful assembly knowing it has been commanded,
to disperse (section 145).,
(4) Hiring of persons to join an unlawful assembly (section 150).,
(5) Harbouring persons hired for an unlawful assembly (section 157).,
(6) Being hired to take part in an unlawful assembly (section 158).,
"II. Rioting (sections 146, 147).",
(1) Rioting with deadly weapon (section 148).,
(2) Assaulting or obstructing a public servant in the suppression of a riot (section,
152).,
(3) Wantonly giving provocation with intent to cause riot (section 153).,
(4) Liability of the owner or occupier of land on which an unlawful assembly is held,
or a riot is committed (section 154).,
(5) Liability of the person for whose benefit a riot is committed (section 155).,
(6) Liability of the agent of owner or occupier for whose benefit a riot is committed,
(section 156).,
III. Promoting enmity between different classes (section 153A).,
"IV. Affray (sections 159, 160).",
[s 155] Liability of person for whose benefit riot is committed.,
Whenever a riot is committed for the benefit or on behalf of any person who is the,
"owner or occupier of any land, respecting which such riot takes place or who claims",
"any interest in such land, or in the subject of any dispute which gave rise to the riot, or",
"who has accepted or derived any benefit therefrom, such person shall be punishable",
"with fine, if he or his agent or manager, having reason to believe that such riot was",
likely to be committed or that the unlawful assembly by which such riot was,
"committed was likely to be held, shall not respectively use all lawful means in his or",
"their power to prevent such assembly or riot from taking place, and for suppressing",
and dispersing the same.,
COMMENT—,
Liability of beneficiary of riot.—Under the preceding section the owner of land is,
punishable for the taking place of an unlawful assembly or riot on his land. This section,
requires that the unlawful assembly or riot should take place in the interest of the,
"owner or any person claiming interest in the land. The section, therefore, imposes",
"unlimited fine. The preceding section refers to an unlawful assembly, as well as a riot;",
this section refers to riot only.,
The principle on which this and the following sections proceed is to subject to fine all,
"persons in whose interest a riot is committed and the agents of such persons, unless it",
can be shown that they did what they lawfully could to prevent the offence.,
THE INDIAN PENAL CODE,
CHAPTER VIII OF OFFENCES AGAINST THE PUBLIC TRANQUILLITY,
The offences in this chapter may be classified in the following four groups:—,
I. Unlawful assembly.,
"(1) Being a member of an unlawful assembly (sections 141, 142, 143).",
(2) Joining an unlawful assembly armed with deadly weapons (section 144).,
(3) Joining or continuing in an unlawful assembly knowing it has been commanded,
to disperse (section 145).,
(4) Hiring of persons to join an unlawful assembly (section 150).,
(5) Harbouring persons hired for an unlawful assembly (section 157).,
(6) Being hired to take part in an unlawful assembly (section 158).,
"II. Rioting (sections 146, 147).",
(1) Rioting with deadly weapon (section 148).,
(2) Assaulting or obstructing a public servant in the suppression of a riot (section,
152).,
(3) Wantonly giving provocation with intent to cause riot (section 153).,
(4) Liability of the owner or occupier of land on which an unlawful assembly is held,
or a riot is committed (section 154).,
(5) Liability of the person for whose benefit a riot is committed (section 155).,
(6) Liability of the agent of owner or occupier for whose benefit a riot is committed,
(section 156).,
III. Promoting enmity between different classes (section 153A).,
"IV. Affray (sections 159, 160).",
[s 156] Liability of agent of owner or occupier for whose benefit riot is,
committed.,
Whenever a riot is committed for the benefit or on behalf of any person who is the,
"owner or occupier of any land respecting which such riot takes place, or who claims",
"any interest in such land, or in the subject of any dispute which gave rise to the riot, or",
"who has accepted or derived any benefit therefrom,",
"the agent or manager of such person shall be punishable with fine, if such agent or",
"manager, having reason to believe that such riot was likely to be committed, or that",
"the unlawful assembly by which such riot was committed was likely to be held, shall",
not use all lawful means in his power to prevent such riot or assembly from taking,
place and for suppressing and dispersing the same.,
COMMENT—,
The provisions of the last two sections are made applicable by this section to the agent,
or manager of the owner or occupier of land.,
THE INDIAN PENAL CODE,
CHAPTER VIII OF OFFENCES AGAINST THE PUBLIC TRANQUILLITY,
The offences in this chapter may be classified in the following four groups:—,
I. Unlawful assembly.,
"(1) Being a member of an unlawful assembly (sections 141, 142, 143).",
(2) Joining an unlawful assembly armed with deadly weapons (section 144).,
(3) Joining or continuing in an unlawful assembly knowing it has been commanded,
to disperse (section 145).,
(4) Hiring of persons to join an unlawful assembly (section 150).,
(5) Harbouring persons hired for an unlawful assembly (section 157).,
(6) Being hired to take part in an unlawful assembly (section 158).,
"II. Rioting (sections 146, 147).",
(1) Rioting with deadly weapon (section 148).,
(2) Assaulting or obstructing a public servant in the suppression of a riot (section,
152).,
(3) Wantonly giving provocation with intent to cause riot (section 153).,
(4) Liability of the owner or occupier of land on which an unlawful assembly is held,
or a riot is committed (section 154).,
(5) Liability of the person for whose benefit a riot is committed (section 155).,
(6) Liability of the agent of owner or occupier for whose benefit a riot is committed,
(section 156).,
III. Promoting enmity between different classes (section 153A).,
"IV. Affray (sections 159, 160).",
[s 157] Harbouring persons hired for an unlawful assembly.,
"Whoever harbours, receives or assembles, in any house or premises in his occupation",
"or charge, or under his control any persons, knowing that such persons have been",
"hired, engaged, or employed, or are about to be hired, engaged, or employed, to join or",
"become members of an unlawful assembly, shall be punished with imprisonment of",
"either description for a term which may extend to six months, or with fine, or with",
both.,
COMMENT—,
Harbouring hired persons.—Section 150 makes the hiring of persons to join an,
"unlawful assembly punishable, whereas this section makes punishable the harbouring",
of such hired persons. It has a wider application.,
The section clearly refers to some unlawful assembly in the future and provides for an,
"occurrence which may happen, not which has happened. An act of harbouring a",
"person, with the knowledge that, in some time past, he had joined or was likely to have",
"been a member of an unlawful assembly, is not an offence under this section.216.",
"216. Radharaman Shaha, (1931) 58 Cal 1401 .",
THE INDIAN PENAL CODE,
CHAPTER VIII OF OFFENCES AGAINST THE PUBLIC TRANQUILLITY,
The offences in this chapter may be classified in the following four groups:—,
I. Unlawful assembly.,
"(1) Being a member of an unlawful assembly (sections 141, 142, 143).",
(2) Joining an unlawful assembly armed with deadly weapons (section 144).,
(3) Joining or continuing in an unlawful assembly knowing it has been commanded,
to disperse (section 145).,
(4) Hiring of persons to join an unlawful assembly (section 150).,
(5) Harbouring persons hired for an unlawful assembly (section 157).,
(6) Being hired to take part in an unlawful assembly (section 158).,
"II. Rioting (sections 146, 147).",
(1) Rioting with deadly weapon (section 148).,
(2) Assaulting or obstructing a public servant in the suppression of a riot (section,
152).,
(3) Wantonly giving provocation with intent to cause riot (section 153).,
(4) Liability of the owner or occupier of land on which an unlawful assembly is held,
or a riot is committed (section 154).,
(5) Liability of the person for whose benefit a riot is committed (section 155).,
(6) Liability of the agent of owner or occupier for whose benefit a riot is committed,
(section 156).,
III. Promoting enmity between different classes (section 153A).,
"IV. Affray (sections 159, 160).",
[s 158] Being hired to take part in an unlawful assembly or riot;.,
"Whoever is engaged, or hired, or offers or attempts to be hired or engaged, to do or",
"assist in doing any of the acts specified in section 141, shall be punished with",
"imprisonment of either description for a term which may extend to six months, or with",
"fine, or with both,",
or to go armed.,
"and whoever, being so engaged or hired as aforesaid, goes armed, or engages or",
"offers to go armed, with any deadly weapon or with anything which used as a",
"weapon of offence is likely to cause death, shall be punished with imprisonment",
"of either description for a term which may extend to two years, or with fine, or",
with both.,
COMMENT—,
This section is intended to punish those persons who hire themselves out as members,
of an unlawful assembly or assist any such members. It is divided into to two parts.,
Higher penalty is awarded where the accused is armed with a deadly weapon.,
THE INDIAN PENAL CODE,
CHAPTER VIII OF OFFENCES AGAINST THE PUBLIC TRANQUILLITY,
The offences in this chapter may be classified in the following four groups:—,
I. Unlawful assembly.,
"(1) Being a member of an unlawful assembly (sections 141, 142, 143).",
(2) Joining an unlawful assembly armed with deadly weapons (section 144).,
(3) Joining or continuing in an unlawful assembly knowing it has been commanded,
to disperse (section 145).,
(4) Hiring of persons to join an unlawful assembly (section 150).,
(5) Harbouring persons hired for an unlawful assembly (section 157).,
(6) Being hired to take part in an unlawful assembly (section 158).,
"II. Rioting (sections 146, 147).",
(1) Rioting with deadly weapon (section 148).,
(2) Assaulting or obstructing a public servant in the suppression of a riot (section,
152).,
(3) Wantonly giving provocation with intent to cause riot (section 153).,
(4) Liability of the owner or occupier of land on which an unlawful assembly is held,
or a riot is committed (section 154).,
(5) Liability of the person for whose benefit a riot is committed (section 155).,
(6) Liability of the agent of owner or occupier for whose benefit a riot is committed,
(section 156).,
III. Promoting enmity between different classes (section 153A).,
"IV. Affray (sections 159, 160).",
[s 159] Affray.,
"When two or more persons1, by fighting in a public place, 2 disturb the public peace,3",
"they are said to ""commit an affray"".",
COMMENT—,
The offence of affray in essence consists of the following ingredients—,
"(a) fighting by two or more persons,",
(b) the fighting must take place in a public place,
(c) such fighting must also result in disturbance of the public peace. Only if such,
"ingredients are satisfied, an offence of affray can be said to have occasioned for",
which the persons causing the same would be responsible. In a prosecution,
"under section 159, IPC, 1860, there must be positive evidence of public peace",
"having been disturbed which would mean that, by the action of the accused the",
even tempo of life of the public was disturbed resulting in affecting the peace,
and tranquillity of the locality.217.,
"217. Gadadhar Guru v State of Orissa, 1989 Cr LJ 2080.",
THE INDIAN PENAL CODE,
CHAPTER VIII OF OFFENCES AGAINST THE PUBLIC TRANQUILLITY,
The offences in this chapter may be classified in the following four groups:—,
I. Unlawful assembly.,
"(1) Being a member of an unlawful assembly (sections 141, 142, 143).",
(2) Joining an unlawful assembly armed with deadly weapons (section 144).,
(3) Joining or continuing in an unlawful assembly knowing it has been commanded,
to disperse (section 145).,
(4) Hiring of persons to join an unlawful assembly (section 150).,
(5) Harbouring persons hired for an unlawful assembly (section 157).,
(6) Being hired to take part in an unlawful assembly (section 158).,
"II. Rioting (sections 146, 147).",
(1) Rioting with deadly weapon (section 148).,
(2) Assaulting or obstructing a public servant in the suppression of a riot (section,
152).,
(3) Wantonly giving provocation with intent to cause riot (section 153).,
(4) Liability of the owner or occupier of land on which an unlawful assembly is held,
or a riot is committed (section 154).,
(5) Liability of the person for whose benefit a riot is committed (section 155).,
(6) Liability of the agent of owner or occupier for whose benefit a riot is committed,
(section 156).,
III. Promoting enmity between different classes (section 153A).,
"IV. Affray (sections 159, 160).",
[s 160] Punishment for committing affray.,
"Whoever commits an affray, shall be punished with imprisonment of either description",
"for a term which may extend to one month, or with fine which may extend to one",
"hundred rupees, or with both.",
COMMENT—,
"Affray.—The word 'affray' is derived from the French word affraier, to terrify, and in a",
legal sense it is taken for a public offence to the terror of the people. The essence of,
the offence consists in the terror it is likely to cause to the public. The Criminal,
"Procedure Code, 1973 has now made it a cognizable offence.",
[s 160.1] Ingredients.—,
This section requires three things—,
1. Two or more persons must fight.,
2. They must fight in a public place.,
3. They must disturb the public peace.,
"The first basic ingredient of section 159, IPC, 1860, is fighting between two or more",
persons. The next ingredient is that the fighting should have been in public place and,
the last ingredient is that the fighting should have disturbed public peace.218.,
1. 'Two or more persons'.—An affray requires two persons at the least. An unlawful,
"assembly requires five. The offence of Affray is a fight, i.e., a bilateral act, in which two",
parties participate and it will not amount to an affray when the party who is assaulted,
"submits to the assault without resistance. Again, there must be a definite disturbance",
of the public peace due to the fight in the public place to make the offence affray.219.,
"2. 'Fighting in a public place'.—'Public place' is a place where the public go, no matter",
whether they have a right to go or not. Many shows are exhibited to the public on,
"private property, yet they are frequented by the public—the public go there.220.",
"The expression 'Fighting' in section 159, IPC, 1860, is used in its ordinary sense and it",
"means a combat or quarrel involving exchange of some force or violence, if not blows.",
Mere verbal quarrel or vulgarly abusing sans violence cannot be construed as fighting,
which contemplates bilateral use of violence by two competing parties. Even if there is,
"no exchange of blows, there should be exchange of some violence between the two",
contending parties before it can be said that the parties are fighting. If one person uses,
"violence against another and the other person merely remains passive, it cannot be",
"said that there is a fighting, so also, if neither person uses violence against the other",
"but both the persons indulge in verbal abuses, it does not amount to fighting.221. Mere",
causing inconvenience to the public is not sufficient.222.,
3. 'Disturb the public peace'.—An affray is an offence against the public peace because,
it is committed in a public place and is likely to cause general alarm and disturbance.,
Mere causing public inconvenience is not enough.223. Before a conviction can be,
"entered under section 160, IPC, 1860, there must be a clear finding by the court that the",
place of occurrence was a public place. If there is no such finding the accused persons,
must be acquitted.224.,
[s 160.2] Affray and riot.—An affray differs from a riot.,
"(1) An affray cannot be committed in a private place, a riot can be.",
"(2) An affray can be committed by two or more persons, a riot, by five or more.",
[s 160.3] Affray and assault.—An affray differs from an assault.—,
(1) The former must be committed in a public place; the latter may take place,
anywhere.,
"(2) The former is regarded as an offence against the public peace; the latter,",
against the person of an individual. An affray is nothing more than an assault,
"committed in a public place and in a conspicuous manner, and is so called",
because it affrighteth and maketh men afraid.,
"218. K Ranganna s/o K Narasappa v State, 2010 Cr LJ 1275 (AP).",
"219. C Subbarayudu v State of AP, 1996 Cr LJ 1472 (AP).",
"220. Wellard v State, (1884) 14 QBD 63 , 66, 67.",
"221. Mangam Chinna Subbarayudu v State, SHO, Nandyal Town PS, 1975 All LT, vol 34, p 332.",
"222. C Subbarayudu v State of AP, 1996 Cr LJ 1472 (AP).",
"223. Podan, (1962) 1 Cr LJ 339 . See also C Subbarayudu v State of AP, 1996 Cr LJ 1472 (AP);",
"and Mahant Kaushalya Das v State of Madras, AIR 1966 SC 22 [LNIND 1965 SC 169] : 1966 Cr LJ",
66 .,
"224. Re Thommeni Nadar, 1974 Cr LJ 1116 (Mad). Gadadhar Guru v State of Orissa, 1989 Cr LJ",
"2080 (Ori), no positive evidence of disturbance of public peace or annoyance to public though",
there was a fight between two groups.,
THE INDIAN PENAL CODE,
CHAPTER IX OF OFFENCES BY OR RELATING TO PUBLIC SERVANTS,
"This chapter deals with two classes of offences, of which one can be committed by",
"public servants alone, and the other comprises offences which relate to public",
"servants, though they are not committed by them.",
Deletion of provisions.—Sectio ns 161–165A stand omitted by the Prevention of,
"Corruption Act, 1988, section 31 (w.e.f. 9 September 1988).",
The relevant portion from the Statement of Objects and Reasons appended to the,
"Prevention of Corruption Act, 1988 relating to the omission of sections 161 to 165A of",
"Indian Penal Code, 1860 (IPC, 1860) is given below:",
"3. The Bill inter alia, envisages widening the scope of the definition of the expression",
"""public servant"", incorporation of offences under sections 161–165A of the Indian",
"Penal Code, enhancement of penalties provided for these offences and incorporation",
of a provision that the order of the trial court upholding the grant of sanction for,
prosecution would be final if it has not already been challenged and the trial has,
"commenced. In order to expedite the proceedings, provisions for day-to-day trial of",
cases and prohibitory provisions with regard to grant of stay and exercise of powers of,
revision on interlocutory orders have also been included.,
4. Since the provisions of section 165A are incorporated in the proposed legislation,
"with an enhanced punishment, it is not necessary to retain those sections in the Indian",
"Penal Code. Consequently, it is proposed to delete those sections with the necessary",
saving provision.,
Sections 161 to 165-A.— Repealed by the Prevention of Corruption Act (Act 49,
"of 1988), section 31 (w.e.f. 9 September 1988).",
THE INDIAN PENAL CODE,
CHAPTER IX OF OFFENCES BY OR RELATING TO PUBLIC SERVANTS,
"This chapter deals with two classes of offences, of which one can be committed by",
"public servants alone, and the other comprises offences which relate to public",
"servants, though they are not committed by them.",
Deletion of provisions.—Sectio ns 161–165A stand omitted by the Prevention of,
"Corruption Act, 1988, section 31 (w.e.f. 9 September 1988).",
The relevant portion from the Statement of Objects and Reasons appended to the,
"Prevention of Corruption Act, 1988 relating to the omission of sections 161 to 165A of",
"Indian Penal Code, 1860 (IPC, 1860) is given below:",
"3. The Bill inter alia, envisages widening the scope of the definition of the expression",
"""public servant"", incorporation of offences under sections 161–165A of the Indian",
"Penal Code, enhancement of penalties provided for these offences and incorporation",
of a provision that the order of the trial court upholding the grant of sanction for,
prosecution would be final if it has not already been challenged and the trial has,
"commenced. In order to expedite the proceedings, provisions for day-to-day trial of",
cases and prohibitory provisions with regard to grant of stay and exercise of powers of,
revision on interlocutory orders have also been included.,
4. Since the provisions of section 165A are incorporated in the proposed legislation,
"with an enhanced punishment, it is not necessary to retain those sections in the Indian",
"Penal Code. Consequently, it is proposed to delete those sections with the necessary",
saving provision.,
"[s 166] Public servant, disobeying law, with intent to cause injury to any",
person.,
"Whoever, being a public servant, knowingly disobeys any direction of the law as to the",
"way in which he is to conduct himself as such public servant, intending to cause, or",
"knowing it to be likely that he will, by such disobedience, cause injury to any person,",
"shall be punished with simple imprisonment for a term which may extend to one year,",
"or with fine, or with both.",
ILLUSTRATION,
"A, being an officer directed by law to take property in execution, in order to satisfy a",
"decree pronounced in Z's favour by a Court of Justice, knowingly disobeys that",
"direction of law, with the knowledge that he is likely thereby to cause injury to Z. A has",
committed the offence defined in this section.,
COMMENT—,
Disobedience of law by public servant.—The offence under this section consists in a,
"wilful departure from the direction of the law, intending to cause injury to any person.",
Mere breach of departmental rules will not bring a public servant within the purview of,
this section.,
[s 166.1] Ingredients.—,
(i) The accused was a public servant at the relevant time;,
(ii) There was a direction of law as to how such public servant should conduct,
himself;,
(iii) The accused had disobeyed such direction;,
(iv) By such disobedience he had intended to cause or knew it would likely cause,
injury to any person.,
The indispensable ingredient of the offence is that the offender should have done the,
"act ""being a public servant"". The next ingredient close to its heels is that such public",
servant has acted in disobedience of any legal direction concerning the way in which,
he should have conducted as such public servant. For the offences under sections 167,
"and 219 of IPC, 1860 the pivotal ingredient is the same as for the offence under section",
"166 of IPC, 1860.1. If in carrying out the direction of law the accused gave information",
"which according to the complainant was untrue, that by itself cannot attract the",
"offence punishable under section 166 IPC, 1860 unless it is shown that the replies",
given by the accused were untrue.2. Where an investigating officer recorded his,
satisfaction in writing that the search of a particular premises was necessary because,
"disputed documents might be found there, his entry into such premises was held to be",
"not in disobedience of law and therefore, he could not be prosecuted without sanction",
"under section 197 Code of Criminal Procedure, 1973 (CrPC, 1973).3. To make out an",
"offence under this provision, it has to be stated that the public servant knowingly",
disobeyed any particular direction of the law which he was bound to obey and further,
that such disobedience would cause injury to any person to the knowledge of the,
public servant.,
"1. K K Patel v State of Gujarat, AIR 2000 SC 3346 [LNIND 2000 SC 889] : 2000 Cr LJ 4592 : JT",
2000 (7) SC 246 [LNIND 2000 SC 889] : (2000) 6 SCC 195 [LNIND 2000 SC 889] : (2000) 4,
Supreme 160 .,
"2. Prabhakara Panicker M B v State of Kerala, 2010 Cr LJ 4117 (Ker) : 2010 (3) KHC 152 .",
"3. BS Thind v State of HP, 1992 Cr LJ 2935 ; People's Union for Civil Liberties v State of",
"Maharashtra, 1998 Cr LJ 2138 (Bom).",
THE INDIAN PENAL CODE,
CHAPTER IX OF OFFENCES BY OR RELATING TO PUBLIC SERVANTS,
"This chapter deals with two classes of offences, of which one can be committed by",
"public servants alone, and the other comprises offences which relate to public",
"servants, though they are not committed by them.",
Deletion of provisions.—Sectio ns 161–165A stand omitted by the Prevention of,
"Corruption Act, 1988, section 31 (w.e.f. 9 September 1988).",
The relevant portion from the Statement of Objects and Reasons appended to the,
"Prevention of Corruption Act, 1988 relating to the omission of sections 161 to 165A of",
"Indian Penal Code, 1860 (IPC, 1860) is given below:",
"3. The Bill inter alia, envisages widening the scope of the definition of the expression",
"""public servant"", incorporation of offences under sections 161–165A of the Indian",
"Penal Code, enhancement of penalties provided for these offences and incorporation",
of a provision that the order of the trial court upholding the grant of sanction for,
prosecution would be final if it has not already been challenged and the trial has,
"commenced. In order to expedite the proceedings, provisions for day-to-day trial of",
cases and prohibitory provisions with regard to grant of stay and exercise of powers of,
revision on interlocutory orders have also been included.,
4. Since the provisions of section 165A are incorporated in the proposed legislation,
"with an enhanced punishment, it is not necessary to retain those sections in the Indian",
"Penal Code. Consequently, it is proposed to delete those sections with the necessary",
saving provision.,
4.[[s 166A] Public servant disobeying direction under law.,
"Whoever, being a public servant,—",
(a) knowingly disobeys any direction of the law which prohibits him from requiring,
the attendance at any place of any person for the purpose of investigation into,
"an offence or any other matter, or",
"(b) knowingly disobeys, to the prejudice of any person, any other direction of the",
"law regulating the manner in which he shall conduct such investigation, or",
(c) fails to record any information given to him under sub-section (1) of section,
"154 of the Code of Criminal Procedure, 1973 (2 of 1974), in relation to",
"cognizable offence punishable under section 326A, section 326B, section 354,",
"section 354B, section 370, section 370A, section 376, section 376A, 5.[section",
"376AB, section 376B, section 376C, section 376D, section 376DA, section",
"376DB], section 376E or section 509,",
shall be punished with rigorous imprisonment for a term which shall not be,
"less than six months but which may extend to two years, and shall also be",
liable to fine.],
"4. Ins. by the Criminal Law (Amendment) Act, 2013 (13 of 2013), section 3 (w.r.e.f. 3-2-2013).",
"5. Subs. by Act 22 of 2018, section 2, for ""section 376B, section 376C, section 376D"" (w.r.e.f.",
21-4-2018).,
THE INDIAN PENAL CODE,
CHAPTER IX OF OFFENCES BY OR RELATING TO PUBLIC SERVANTS,
"This chapter deals with two classes of offences, of which one can be committed by",
"public servants alone, and the other comprises offences which relate to public",
"servants, though they are not committed by them.",
Deletion of provisions.—Sectio ns 161–165A stand omitted by the Prevention of,
"Corruption Act, 1988, section 31 (w.e.f. 9 September 1988).",
The relevant portion from the Statement of Objects and Reasons appended to the,
"Prevention of Corruption Act, 1988 relating to the omission of sections 161 to 165A of",
"Indian Penal Code, 1860 (IPC, 1860) is given below:",
"3. The Bill inter alia, envisages widening the scope of the definition of the expression",
"""public servant"", incorporation of offences under sections 161–165A of the Indian",
"Penal Code, enhancement of penalties provided for these offences and incorporation",
of a provision that the order of the trial court upholding the grant of sanction for,
prosecution would be final if it has not already been challenged and the trial has,
"commenced. In order to expedite the proceedings, provisions for day-to-day trial of",
cases and prohibitory provisions with regard to grant of stay and exercise of powers of,
revision on interlocutory orders have also been included.,
4. Since the provisions of section 165A are incorporated in the proposed legislation,
"with an enhanced punishment, it is not necessary to retain those sections in the Indian",
"Penal Code. Consequently, it is proposed to delete those sections with the necessary",
saving provision.,
4.[[s 166A] Public servant disobeying direction under law.,
"Whoever, being a public servant,—",
(a) knowingly disobeys any direction of the law which prohibits him from requiring,
the attendance at any place of any person for the purpose of investigation into,
"an offence or any other matter, or",
"(b) knowingly disobeys, to the prejudice of any person, any other direction of the",
"law regulating the manner in which he shall conduct such investigation, or",
(c) fails to record any information given to him under sub-section (1) of section,
"154 of the Code of Criminal Procedure, 1973 (2 of 1974), in relation to",
"cognizable offence punishable under section 326A, section 326B, section 354,",
"section 354B, section 370, section 370A, section 376, section 376A, 5.[section",
"376AB, section 376B, section 376C, section 376D, section 376DA, section",
"376DB], section 376E or section 509,",
shall be punished with rigorous imprisonment for a term which shall not be,
"less than six months but which may extend to two years, and shall also be",
liable to fine.],
"4. Ins. by the Criminal Law (Amendment) Act, 2013 (13 of 2013), section 3 (w.r.e.f. 3-2-2013).",
"5. Subs. by Act 22 of 2018, section 2, for ""section 376B, section 376C, section 376D"" (w.r.e.f.",
21-4-2018).,
THE INDIAN PENAL CODE,
CHAPTER IX OF OFFENCES BY OR RELATING TO PUBLIC SERVANTS,
"This chapter deals with two classes of offences, of which one can be committed by",
"public servants alone, and the other comprises offences which relate to public",
"servants, though they are not committed by them.",
Deletion of provisions.—Sectio ns 161–165A stand omitted by the Prevention of,
"Corruption Act, 1988, section 31 (w.e.f. 9 September 1988).",
The relevant portion from the Statement of Objects and Reasons appended to the,
"Prevention of Corruption Act, 1988 relating to the omission of sections 161 to 165A of",
"Indian Penal Code, 1860 (IPC, 1860) is given below:",
"3. The Bill inter alia, envisages widening the scope of the definition of the expression",
"""public servant"", incorporation of offences under sections 161–165A of the Indian",
"Penal Code, enhancement of penalties provided for these offences and incorporation",
of a provision that the order of the trial court upholding the grant of sanction for,
prosecution would be final if it has not already been challenged and the trial has,
"commenced. In order to expedite the proceedings, provisions for day-to-day trial of",
cases and prohibitory provisions with regard to grant of stay and exercise of powers of,
revision on interlocutory orders have also been included.,
4. Since the provisions of section 165A are incorporated in the proposed legislation,
"with an enhanced punishment, it is not necessary to retain those sections in the Indian",
"Penal Code. Consequently, it is proposed to delete those sections with the necessary",
saving provision.,
4.[[s 166A] Public servant disobeying direction under law.,
"Whoever, being a public servant,—",
(a) knowingly disobeys any direction of the law which prohibits him from requiring,
the attendance at any place of any person for the purpose of investigation into,
"an offence or any other matter, or",
"(b) knowingly disobeys, to the prejudice of any person, any other direction of the",
"law regulating the manner in which he shall conduct such investigation, or",
(c) fails to record any information given to him under sub-section (1) of section,
"154 of the Code of Criminal Procedure, 1973 (2 of 1974), in relation to",
"cognizable offence punishable under section 326A, section 326B, section 354,",
"section 354B, section 370, section 370A, section 376, section 376A, 5.[section",
"376AB, section 376B, section 376C, section 376D, section 376DA, section",
"376DB], section 376E or section 509,",
shall be punished with rigorous imprisonment for a term which shall not be,
"less than six months but which may extend to two years, and shall also be",
liable to fine.],
"4. Ins. by the Criminal Law (Amendment) Act, 2013 (13 of 2013), section 3 (w.r.e.f. 3-2-2013).",
"5. Subs. by Act 22 of 2018, section 2, for ""section 376B, section 376C, section 376D"" (w.r.e.f.",
21-4-2018).,
THE INDIAN PENAL CODE,
CHAPTER IX OF OFFENCES BY OR RELATING TO PUBLIC SERVANTS,
"This chapter deals with two classes of offences, of which one can be committed by",
"public servants alone, and the other comprises offences which relate to public",
"servants, though they are not committed by them.",
Deletion of provisions.—Sectio ns 161–165A stand omitted by the Prevention of,
"Corruption Act, 1988, section 31 (w.e.f. 9 September 1988).",
The relevant portion from the Statement of Objects and Reasons appended to the,
"Prevention of Corruption Act, 1988 relating to the omission of sections 161 to 165A of",
"Indian Penal Code, 1860 (IPC, 1860) is given below:",
"3. The Bill inter alia, envisages widening the scope of the definition of the expression",
"""public servant"", incorporation of offences under sections 161–165A of the Indian",
"Penal Code, enhancement of penalties provided for these offences and incorporation",
of a provision that the order of the trial court upholding the grant of sanction for,
prosecution would be final if it has not already been challenged and the trial has,
"commenced. In order to expedite the proceedings, provisions for day-to-day trial of",
cases and prohibitory provisions with regard to grant of stay and exercise of powers of,
revision on interlocutory orders have also been included.,
4. Since the provisions of section 165A are incorporated in the proposed legislation,
"with an enhanced punishment, it is not necessary to retain those sections in the Indian",
"Penal Code. Consequently, it is proposed to delete those sections with the necessary",
saving provision.,
6.[[s 166B] Punishment for non-treatment of victim.,
"Whoever, being in charge of a hospital, public or private, whether run by the Central",
"Government, the State Government, local bodies or any other person, contravenes the",
"provisions of section 357C of the Code of Criminal Procedure, 1973 (2 of 1974), shall",
be punished with imprisonment for a term which may extend to one year or with fine,
or with both.],
COMMENT—,
Sections 166A and 166B are enacted based on the recommendations given by the,
"Justice J.S. Verma Committee, constituted in the aftermath of the December 2012",
"Delhi Rape Case by the Criminal Law (Amendment) Act, 2013 (Nirbhaya Act, 2013).",
"6. Ins. by the Criminal Law (Amendment) Act, 2013 (13 of 2013), section 3 (w.r.e.f. 3-2-2013).",
"The Indian Penal Code (PB), 36th ed",
"Ratanlal & Dhirajlal: Indian Penal Code (PB) / 6. Ins. by the Criminal Law (Amendment) Act, 2013 (13 of",
"2013), section 3 (w.r.e.f. 3-2-2013). [[s 166B] Punishment for non-treatment of victim.",
Currency Date: 28 April 2020,
© 2020 LexisNexis,
THE INDIAN PENAL CODE,
CHAPTER IX OF OFFENCES BY OR RELATING TO PUBLIC SERVANTS,
"This chapter deals with two classes of offences, of which one can be committed by",
"public servants alone, and the other comprises offences which relate to public",
"servants, though they are not committed by them.",
Deletion of provisions.—Sectio ns 161–165A stand omitted by the Prevention of,
"Corruption Act, 1988, section 31 (w.e.f. 9 September 1988).",
The relevant portion from the Statement of Objects and Reasons appended to the,
"Prevention of Corruption Act, 1988 relating to the omission of sections 161 to 165A of",
"Indian Penal Code, 1860 (IPC, 1860) is given below:",
"3. The Bill inter alia, envisages widening the scope of the definition of the expression",
"""public servant"", incorporation of offences under sections 161–165A of the Indian",
"Penal Code, enhancement of penalties provided for these offences and incorporation",
of a provision that the order of the trial court upholding the grant of sanction for,
prosecution would be final if it has not already been challenged and the trial has,
"commenced. In order to expedite the proceedings, provisions for day-to-day trial of",
cases and prohibitory provisions with regard to grant of stay and exercise of powers of,
revision on interlocutory orders have also been included.,
4. Since the provisions of section 165A are incorporated in the proposed legislation,
"with an enhanced punishment, it is not necessary to retain those sections in the Indian",
"Penal Code. Consequently, it is proposed to delete those sections with the necessary",
saving provision.,
6.[[s 166B] Punishment for non-treatment of victim.,
"Whoever, being in charge of a hospital, public or private, whether run by the Central",
"Government, the State Government, local bodies or any other person, contravenes the",
"provisions of section 357C of the Code of Criminal Procedure, 1973 (2 of 1974), shall",
be punished with imprisonment for a term which may extend to one year or with fine,
or with both.],
COMMENT—,
Sections 166A and 166B are enacted based on the recommendations given by the,
"Justice J.S. Verma Committee, constituted in the aftermath of the December 2012",
"Delhi Rape Case by the Criminal Law (Amendment) Act, 2013 (Nirbhaya Act, 2013).",
"6. Ins. by the Criminal Law (Amendment) Act, 2013 (13 of 2013), section 3 (w.r.e.f. 3-2-2013).",
THE INDIAN PENAL CODE,
CHAPTER IX OF OFFENCES BY OR RELATING TO PUBLIC SERVANTS,
"This chapter deals with two classes of offences, of which one can be committed by",
"public servants alone, and the other comprises offences which relate to public",
"servants, though they are not committed by them.",
Deletion of provisions.—Sectio ns 161–165A stand omitted by the Prevention of,
"Corruption Act, 1988, section 31 (w.e.f. 9 September 1988).",
The relevant portion from the Statement of Objects and Reasons appended to the,
"Prevention of Corruption Act, 1988 relating to the omission of sections 161 to 165A of",
"Indian Penal Code, 1860 (IPC, 1860) is given below:",
"3. The Bill inter alia, envisages widening the scope of the definition of the expression",
"""public servant"", incorporation of offences under sections 161–165A of the Indian",
"Penal Code, enhancement of penalties provided for these offences and incorporation",
of a provision that the order of the trial court upholding the grant of sanction for,
prosecution would be final if it has not already been challenged and the trial has,
"commenced. In order to expedite the proceedings, provisions for day-to-day trial of",
cases and prohibitory provisions with regard to grant of stay and exercise of powers of,
revision on interlocutory orders have also been included.,
4. Since the provisions of section 165A are incorporated in the proposed legislation,
"with an enhanced punishment, it is not necessary to retain those sections in the Indian",
"Penal Code. Consequently, it is proposed to delete those sections with the necessary",
saving provision.,
[s 167] Public servant framing an incorrect document with intent to cause,
injury.,
"Whoever, being a public servant, and being, as 7.[such public servant, charged with the",
"preparation or translation of any document or electronic record, frames, prepares or",
translates that document or electronic record] in a manner which he knows or,
"believes to be incorrect, intending thereby to cause or knowing it to be likely that he",
"may thereby cause injury to any person, shall be punished with imprisonment of either",
"description for a term which may extend to three years, or with fine, or with both.",
COMMENT—,
The preceding section deals generally with the disobedience of any direction of law;,
"this section deals with a specific instance, viz., that of framing an incorrect document",
"with intent to cause injury. It is similar to section 218, which deals also with cases of",
framing incorrect record or writing with intent to save person from punishment or,
"property from forfeiture, whereas section 167 deals with cases of framing incorrect",
"document only with intent to cause injury. In a case, the allegation that the accused,",
"who is a Deputy Superintendent of Police, suppressed the statement recorded under",
"section 161 of the CrPC, 1973 in a criminal case registered by the police and produced",
a fabricated statement along with the charge sheet before the Magistrate. The Court,
held that section 167 is attracted only when a public servant prepares a document in a,
"manner which he thinks or believes to be incorrect. Essentially, the petitioner's",
allegation is that the accused suppressed the real statement prepared under section,
161 of the Criminal Procedure Code and produced along with the charge sheet a,
"fabricated statement. That comes only within the purview of section 193. Therefore,",
section 167 is not attracted to the allegations raised by the petitioner in his,
complaint.8.,
"7. Subs. by the Information Technology Act (Act 21 of 2000), section 91 and First Schedule for",
"the words ""such public servant, charged with the preparation or translation of any document,",
"frames or translates that document"", w.e.f. 17-10-2000. The words ""electronic record"" have been",
defined in section 29A.,
"8. Joseph v State of Kerala, 2013 Cr LJ 749 : 2012 (4) KHC 157 .",
THE INDIAN PENAL CODE,
CHAPTER IX OF OFFENCES BY OR RELATING TO PUBLIC SERVANTS,
"This chapter deals with two classes of offences, of which one can be committed by",
"public servants alone, and the other comprises offences which relate to public",
"servants, though they are not committed by them.",
Deletion of provisions.—Sectio ns 161–165A stand omitted by the Prevention of,
"Corruption Act, 1988, section 31 (w.e.f. 9 September 1988).",
The relevant portion from the Statement of Objects and Reasons appended to the,
"Prevention of Corruption Act, 1988 relating to the omission of sections 161 to 165A of",
"Indian Penal Code, 1860 (IPC, 1860) is given below:",
"3. The Bill inter alia, envisages widening the scope of the definition of the expression",
"""public servant"", incorporation of offences under sections 161–165A of the Indian",
"Penal Code, enhancement of penalties provided for these offences and incorporation",
of a provision that the order of the trial court upholding the grant of sanction for,
prosecution would be final if it has not already been challenged and the trial has,
"commenced. In order to expedite the proceedings, provisions for day-to-day trial of",
cases and prohibitory provisions with regard to grant of stay and exercise of powers of,
revision on interlocutory orders have also been included.,
4. Since the provisions of section 165A are incorporated in the proposed legislation,
"with an enhanced punishment, it is not necessary to retain those sections in the Indian",
"Penal Code. Consequently, it is proposed to delete those sections with the necessary",
saving provision.,
[s 168] Public servant unlawfully engaging in trade.,
"Whoever, being a public servant, and being legally bound as such public servant not to",
"engage in trade, engages in trade, shall be punished with simple imprisonment for a",
"term which may extend to one year, or with fine, or with both.",
COMMENT—,
Public servant engaging in trade.—This section punishes those public servants who,
are legally bound not to engage in trade. If public servants were allowed to trade they,
would fail to perform their duties with undivided attention. Being in official position they,
could easily obtain unfair advantages over other traders.,
"The word 'trade' covers every kind of trade, business, profession, or occupation.9. This",
proposition of law no longer seems to be correct in view of the Supreme Court's,
decision in Mahesh Kumar Dhirajlal's case10. wherein their Lordships held that trade in,
"its narrow sense means ""exchange of goods for goods or for money with the object of",
"making profit"" and in its widest sense means ""any business with a view to earn profit"".",
"Thus, where a tracer in the office of Sub-divisional Soil Conservation Officer took",
earned leave and during that period of leave obtained training as an Electrical Signal,
"Maintainer from the Railway Administration, it was held that he could not be convicted",
under this section as he had not engaged himself in any trade even though he was,
receiving stipend from the Railways during the period of his training.11. Following this,
"ruling, it has been held that engaging oneself as an agent of an insurance company on",
commission basis does not amount to engaging in trade.12.,
[s 168.1] Private Practice of Government Doctors.—,
"In Kanwarjit Singh Kakkar v State of Punjab,13. the Supreme Court examined the",
question whether the indulgence in private practice of Government Doctors would,
"amount to indulgence in 'trade' while holding the post of a government doctor, so as to",
"constitute an offence under section 168 of the IPC, 1860. The Supreme Court held that",
"""in our view, offence under Section 168 of the IPC, 1860 cannot be held to have been",
made out against the appellants even under this Section as the treatment of patients,
by a doctor cannot by itself be held to be engagement in a trade as the doctors' duty to,
treat patients is in the discharge of his professional duty which cannot be held to be a,
"'trade' so as to make out or constitute an offence under Section 168 of the IPC, 1860"".",
"9. Mulshankar Maganlal, (1950) Bom 706 : (1950) 52 Bom LR 648 .",
"10. State of Gujarat v Mahesh Kumar Dhirajlal, AIR 1980 SC 1167 [LNIND 1980 SC 69] : 1980 Cr",
LJ 919 .,
"11. State of Gujarat v Mahesh Kumar Dhirajlal, AIR 1980 SC 1167 [LNIND 1980 SC 69] : 1980 Cr",
"LJ 919 . See also Rasik Behari Mathur v State of Rajasthan, 2007 Cr LJ 3108 (Raj).",
"12. State of Maharashtra v Chandrakant Solanki, (1995) 1 Cr LJ 832 (Bom).",
"13. Kanwarjit Singh Kakkar v State of Punjab, 2011 CrLJ 3360 : SCC 158 : (2012) 1 SCC (Cr) 805.",
THE INDIAN PENAL CODE,
CHAPTER IX OF OFFENCES BY OR RELATING TO PUBLIC SERVANTS,
"This chapter deals with two classes of offences, of which one can be committed by",
"public servants alone, and the other comprises offences which relate to public",
"servants, though they are not committed by them.",
Deletion of provisions.—Sectio ns 161–165A stand omitted by the Prevention of,
"Corruption Act, 1988, section 31 (w.e.f. 9 September 1988).",
The relevant portion from the Statement of Objects and Reasons appended to the,
"Prevention of Corruption Act, 1988 relating to the omission of sections 161 to 165A of",
"Indian Penal Code, 1860 (IPC, 1860) is given below:",
"3. The Bill inter alia, envisages widening the scope of the definition of the expression",
"""public servant"", incorporation of offences under sections 161–165A of the Indian",
"Penal Code, enhancement of penalties provided for these offences and incorporation",
of a provision that the order of the trial court upholding the grant of sanction for,
prosecution would be final if it has not already been challenged and the trial has,
"commenced. In order to expedite the proceedings, provisions for day-to-day trial of",
cases and prohibitory provisions with regard to grant of stay and exercise of powers of,
revision on interlocutory orders have also been included.,
4. Since the provisions of section 165A are incorporated in the proposed legislation,
"with an enhanced punishment, it is not necessary to retain those sections in the Indian",
"Penal Code. Consequently, it is proposed to delete those sections with the necessary",
saving provision.,
[s 169] Public servant unlawfully buying or bidding for property.,
"Whoever, being a public servant, and being legally bound as such public servant, not",
"to purchase or bid for certain property, purchases or bids for that property, either in",
"his own name or in the name of another, or jointly, or in shares with others, shall be",
"punished with simple imprisonment for a term which may extend to two years, or with",
"fine, or with both; and the property, if purchased, shall be confiscated.",
COMMENT—,
Buying or holding property.—This section is merely an extension of the principle,
enunciated in the last section. It prohibits a public servant from purchasing or bidding,
for property which he is legally bound not to purchase.,
It is necessary that there should be some statutory law or rules or regulations framed,
under the law and not merely some administrative instructions or guidelines prohibiting,
"public servants from purchasing certain property. In this case, a Code of Conduct was",
issued by the State Government in the exercise of its executive power under Article 162,
of the Constitution under which Ministers were prohibited from buying Government,
properties. There were no mandatory terms providing for any action in case of non-,
compliance. It was held that the Code of Conduct did not have the effect of law. Its,
violation could not generate legal proceedings there being nothing unlawful illegal,
within the meaning of section 43. The purchase of property of a Government company,
by a firm in which the then Chief Minister was a partner did not constitute an offence,
under section 169 in the absence of any law debarring the Chief Minister from making,
such a purchase.14.,
[s 169.1] TANSI land deal case.—,
"The allegation was that the Tamil Nadu Chief Minister, Ms. Jayalalithaa, while holding",
"the chief minister's post, had violated the code of conduct and purchased 3.0786 acres",
of land and buildings to the state-owned Tamil Nadu State Industries Corporation for,
"Jaya Publications. While reversing the conviction passed by the High Court, the",
"Supreme Court held that the offence under section 169 IPC, 1860 is incomplete without",
the assistance of some other enactment which imposes the legal prohibition required.,
"Therefore, in order to come within the clutches of section 169 IPC, 1860, there should",
be a law which prohibits a public servant from purchasing certain property and if he,
"does it, it becomes an offence under section 169 IPC, 1860. Section 481 of the Criminal",
"Procedure Code, section 189 of the Railways Act, 1989 and section 19 of the Cattle",
"Trespass Act, 1871 and instances of that nature in several enactments are available in",
which persons mentioned therein shall not directly or indirectly purchase any property,
"at a sale under those Acts. Similarly section 136 of the Transfer of Property Act, 1882",
"provides that no Judge, legal practitioner, or officer connected with any Court of Justice",
"shall buy or traffic in, or stipulate for, or agree to receive any share of, or interest in, any",
"actionable claim and no Court of Justice shall enforce, at his instance, or at the",
"instance of any person claiming by or through him, any actionable claims so dealt with",
"by him as stated above. Thus, in these circumstances where a law has prohibited",
"purchase of property or to bid at an auction, the prohibition contained therein will be",
"attracted and will become an offence under section 169 IPC, 1860. The Code of",
"Conduct not having a statutory force and not enforceable in a Court of law, nor having",
any sanction or procedure for dealing with a contravention thereof by the Chief,
"Minister, cannot be construed to impose a legal prohibition against the purchase of",
property of the Government so as to give rise to a criminal offence under section 169,
"IPC, 1860.15.",
"14. R Sai Bharathi v J Jayalalitha, AIR 2004 SC 692 [LNIND 2003 SC 1023] : 2004 Cr LJ 286 :",
(2004) 2 SCC 9 [LNIND 2003 SC 1023] .,
"15. R Sai Bharathi v J Jayalalitha, AIR 2004 SC 692 [LNIND 2003 SC 1023] : (2004) 2 SCC 9",
[LNIND 2003 SC 1023] .,
THE INDIAN PENAL CODE,
CHAPTER IX OF OFFENCES BY OR RELATING TO PUBLIC SERVANTS,
"This chapter deals with two classes of offences, of which one can be committed by",
"public servants alone, and the other comprises offences which relate to public",
"servants, though they are not committed by them.",
Deletion of provisions.—Sectio ns 161–165A stand omitted by the Prevention of,
"Corruption Act, 1988, section 31 (w.e.f. 9 September 1988).",
The relevant portion from the Statement of Objects and Reasons appended to the,
"Prevention of Corruption Act, 1988 relating to the omission of sections 161 to 165A of",
"Indian Penal Code, 1860 (IPC, 1860) is given below:",
"3. The Bill inter alia, envisages widening the scope of the definition of the expression",
"""public servant"", incorporation of offences under sections 161–165A of the Indian",
"Penal Code, enhancement of penalties provided for these offences and incorporation",
of a provision that the order of the trial court upholding the grant of sanction for,
prosecution would be final if it has not already been challenged and the trial has,
"commenced. In order to expedite the proceedings, provisions for day-to-day trial of",
cases and prohibitory provisions with regard to grant of stay and exercise of powers of,
revision on interlocutory orders have also been included.,
4. Since the provisions of section 165A are incorporated in the proposed legislation,
"with an enhanced punishment, it is not necessary to retain those sections in the Indian",
"Penal Code. Consequently, it is proposed to delete those sections with the necessary",
saving provision.,
[s 170] Personating a public servant.,
"Whoever pretends to hold any particular office as a public servant,1 knowing that he",
"does not hold such office or falsely personates any other person holding such office,",
and in such assumed character does or attempts to do any act 2 under colour of such,
"office,3 shall be punished with imprisonment of either description for a term which",
"may extend to two years, or with fine, or with both.",
[s 170.1] Ingredients.—,
The section requires two things—,
"1. A person (a) pretending to hold a particular office as a public servant, knowing",
"that he does not hold such office, or (b) falsely personating any other person",
holding such office.,
2. Such person in such assumed character must do or attempt to do an act under,
colour of such office.,
COMMENT—,
Personating public servant.—Mere personation is not an offence under this section.,
The person personating must do or attempt to do some act under colour of the office,
of the public servant whom he personates. Section 140 punishes the person who,
wears the garb or carries the token used by a soldier. This section punishes a person,
who does any act in the assumed character of a public servant.,
1. 'Pretends to hold any particular office as a public servant'.—It must be an existing,
"office. If it is uncertain who legally fills the office, a person doing an official act, in",
"pursuance of what he honestly believes to be his lawful title to the office, does not",
come within this section.,
2. 'Any act'.—It is not necessary that the act done or attempted to be done should be,
such an act as might legally be done by the public servant personated. The accused,
was arrested when he was demanding one anna's worth of fruit from a fruit-seller for,
"one pie on the representation that he was a head constable, which in fact he was not. It",
was held that if he pretended to be a police-officer and tried as such police-officer to,
"extort money or things from a fruit-seller, he was guilty of an offence under this",
section.16. A person who poses as a Government servant and by so doing obtains of,
"another's services, which he would not otherwise have obtained and which the other",
"person was bound to give on demand by a Government officer, commits an offence",
under this section.17.,
"3. 'Under colour of such office'.—An act is done 'under colour of an office,' if it is an act",
"having some relation to the office, which the actor pretends to hold. If it has no relation",
"to the office, as if A pretending to be a servant of Government, travelling through a",
"district, obtains money, provisions, etc., the offence may amount to cheating under",
"section 415, but is not punishable under this section.18. The act done under colour of",
office must be an act which could not have been done without assuming official,
authority.,
Where the accused posed as a police officer and in that garb looted certain articles,
"from the complainant and the stolen articles, one police ballot and monogram were",
"recovered from him, his conviction under the section was held to be proper.19.",
[s 170.2] Retired IAS officer using IAS with his name.—,
"To constitute an offence under section 170, a person must either pretend to hold a",
particular office as a public servant knowing that he does not hold such office or falsely,
"personate any other person holding such office. Over and above that, that person in",
such assumed character must do or attempt to do an act under the colour of such,
"office. There must be pretension or false personation to be a particular person, that too",
"a public servant, which he is not, and then doing of or attempt to do some act under",
"colour of such office of that public servant, to proceed against a person under section",
"170 of the Indian Penal Code. Thus, where a retired IAS officer, had used IAS in his",
letterhead when he continued as Director of CAPE and also corresponded in that,
"manner, is no ground to impute that he has committed an offence under section 170 of",
the Penal Code.20.,
"16. Aziz-ud-din v State, (1904) All 294 .",
"17. Bashirullakhan, (1942) Nag 484. Ajitender Singh v State of Punjab, 2000 Cr LJ 1827 (P&H) :",
"2000 (2) RCR (Criminal) 34, mere assumption of the character of a public servant is not enough,",
"there must also be an attempt to commit an official act. Jata Shanker Jha v State of Rajasthan,",
"2000 Cr LJ 2108 (Raj) : 2000 (4) WLC 75 , accused personated as secret ASI in the Education",
Department used forged papers to divert the salary of others to himself. Conviction. Pratap,
"Singh v State, 1998 Cr LJ 633 (P&H), acting under colour of office as Lambardar, offence under",
the section made out because the accused identified parties in sale deeds as an officer and also,
had certain sureties arrested.,
18. M&M 142.,
"19. Karuna Krishna Biswas v State of WB, 1996 Cr LJ 2823 (Cal).",
"20. Premachandra Kurup v State, 2013 Cr LJ 1465 .",
THE INDIAN PENAL CODE,
CHAPTER IX OF OFFENCES BY OR RELATING TO PUBLIC SERVANTS,
"This chapter deals with two classes of offences, of which one can be committed by",
"public servants alone, and the other comprises offences which relate to public",
"servants, though they are not committed by them.",
Deletion of provisions.—Sectio ns 161–165A stand omitted by the Prevention of,
"Corruption Act, 1988, section 31 (w.e.f. 9 September 1988).",
The relevant portion from the Statement of Objects and Reasons appended to the,
"Prevention of Corruption Act, 1988 relating to the omission of sections 161 to 165A of",
"Indian Penal Code, 1860 (IPC, 1860) is given below:",
"3. The Bill inter alia, envisages widening the scope of the definition of the expression",
"""public servant"", incorporation of offences under sections 161–165A of the Indian",
"Penal Code, enhancement of penalties provided for these offences and incorporation",
of a provision that the order of the trial court upholding the grant of sanction for,
prosecution would be final if it has not already been challenged and the trial has,
"commenced. In order to expedite the proceedings, provisions for day-to-day trial of",
cases and prohibitory provisions with regard to grant of stay and exercise of powers of,
revision on interlocutory orders have also been included.,
4. Since the provisions of section 165A are incorporated in the proposed legislation,
"with an enhanced punishment, it is not necessary to retain those sections in the Indian",
"Penal Code. Consequently, it is proposed to delete those sections with the necessary",
saving provision.,
[s 171] Wearing garb or carrying token used by public servant with fraudulent,
intent.,
"Whoever, not belonging to a certain class of public servants, wears any garb or carries",
"any token resembling any garb or token used by that class of public servants, with the",
"intention that it may be believed, or with the knowledge that it is likely to be believed,",
"that he belongs to that class of public servants, shall be punished with imprisonment",
"of either description for a term which may extend to three months, or with fine which",
"may extend to two hundred rupees, or with both.",
COMMENT—,
"Wearing garb or token of public servant.—Under this section the offence is complete,",
although no act is done or attempted in the assumed official character. The mere,
"circumstance of wearing a garb, or carrying a token, with the intention or knowledge",
"supposed, is sufficient. It is not necessary that something should pass in words. If any",
act is done then the preceding section will apply.,
"Under section 140 IPC, 1860, wearing the garb or carrying the token of a soldier is",
made punishable.,
THE INDIAN PENAL CODE,
1.,
[CHAPTER IX-A OF OFFENCES RELATING TO ELECTIONS,
"[s 171A] ""Candidate"", ""Electoral right"", defined.",
For the purposes of this Chapter—,
"2.[(a) ""candidate"" means a person who has been nominated as a candidate at an",
election;1],
"(b) ""electoral right"" means the right of a person to stand, or not to stand as, or to",
"withdraw from being, a candidate or to vote or refrain from voting at any",
election.,
COMMENT—,
"Candidate, electoral right.—This chapter was introduced in the Code by the Indian",
Elections Offences and Inquiries Act (XXXIX of 1920). It seeks to make punishable,
"under the ordinary penal law, bribery, undue influence, and personation, and certain",
"other malpractices at elections not only to the Legislative bodies, but also to",
"membership of public authorities where the law prescribes a method of election; and,",
"further, to debar persons guilty of malpractices from holding positions of public",
responsibility for a specific period. 3.This chapter has to be read along with the,
"Representation of the People Act, 1951 as it contains additional penalties for certain",
"offences under this chapter, e.g., sections 171E and 171F of this Code. Thus, a",
"conviction under section 171E or section 171F, IPC, 1860, amounts to a disqualification",
"under section 8 of the Representation of the People Act, 1951.4.",
1. 'Election'.—'Election' is defined as including election to all classes of public bodies,
where such a system is prescribed by law (vide Explanation 3 to section 21 supra).,
"1. Chapter IXA (containing of sections 171A to 171-I) ins. by Act 39 of 1920, section 2.",
"2. Subs. by Act 40 of 1975, section 9, for clause (a) (w.e.f. 6-8-1975).",
"3. Statement of Objects and Reasons. Gazette of India, 1920, Part V, p 135, section 4. Bhupinder",
"Singh v State, 1997 Cr LJ 1416 (P&H), accused snatched ballot papers from the custody of a",
polling officer and tore them. This amounted to use of criminal force.,
4. For a comparison between the sections 171A to 171E with the provisions of Representation,
"of People Act, 1950. See Indira Nehru Gandhi v Raj Narain, AIR 1975 SC 2299 [LNIND 1975 SC",
432] : (1975) Supp SCC 1 : 1976 (2) SCR 347 [LNIND 1975 SC 432] .,
THE INDIAN PENAL CODE,
1.,
[CHAPTER IX-A OF OFFENCES RELATING TO ELECTIONS,
"[s 171B] ""Bribery"".",
(1) Whoever—,
(i) gives a gratification to any person with the object of inducing him or any,
other person to exercise any electoral right or of rewarding any person,
for having exercised any such right; or,
(ii) accepts either for himself or for any other person any gratification as a,
reward for exercising any such right or for inducing or attempting to,
induce any other person to exercise any such right; commits the offence,
of bribery:,
Provided that a declaration of public policy or a promise of public action,
shall not be an offence under this section.,
"(2) A person who offers, or agrees to give, or offers or attempts to procure, a",
gratification shall be deemed to give a gratification.,
(3) A person who obtains or agrees to accept or attempts to obtain a gratification,
"shall be deemed to accept a gratification, and a person who accepts a",
"gratification as a motive for doing what he does not intend to do, or as a reward",
"for doing what he has not done, shall be deemed to have accepted the",
gratification as a reward.,
COMMENT—,
Bribery.—This section defines the offence of bribery at an election.,
'Bribery' is defined primarily as the giving or acceptance of a gratification either as a,
"motive or as a reward to any person, either to induce him to stand, or not to stand as, or",
"to withdraw from being, a candidate or to vote or refrain from voting at an election. It",
also includes offers or agreements to give or offer and attempts to procure a,
gratification for any person. 'Gratification' is already explained in section 161 of the,
Penal Code and is not restricted to pecuniary gratifications or to gratifications,
estimated in money.5. Section 171-B(1)(i) of Indian Penal Code provides that if,
gratification is given to any person inducing him or any other person to exercise any,
"electoral right, then it will amount to bribery. The term ""Electoral right"" defined under",
clause (b) of section 171-A of Indian Penal Code clearly indicates that the electoral,
"right is of definite nature and it is to be exercised by individual. So, the gratification has",
"to be given to an individual. Here, the offer is made to the party (RPI) and not to any",
"individual. Furthermore, there is nothing in the offer which indicates that any influence",
"is being brought on any individual with respect to exercising his electoral right, that",
"means, to stand, or not to stand as, or to withdraw from being, a candidate or to vote or",
"to refrain from voting at the election. Seeking support of a political party, during the",
course of election and making an offer to political party of some share in political,
power for giving such support cannot be called as giving gratification as contemplated,
under section 171-B of Indian Penal Code.6. The word 'gratification' should be deemed,
to refer only to cases where a gift is made of something which gives a material,
advantage to the recipient. There is hardly any need to say that giving of anything,
whose value is estimable in money is bribery. A gun licence gives no material,
advantage to its recipient. It might gratify his sense of importance if he has a gun,
licence in a village where nobody else has a gun licence. So might be the conferment of,
an honour like Padma Bhushan. A praise from a high quarter might gratify the sense of,
vanity of a person. But the word 'gratification' as used in section 123 (1) does not refer,
to such gratification any more than in section 171-B of the Indian Penal Code.7.,
[s 171B.1] Sub-clause (2).—'Offers'.—,
By this clause the attempt to corrupt is made equivalent to the complete act.,
[s 171B.2] Treating.—,
Treating will be bribery if refreshment is given or accepted with the intent required by,
law.8. The gist of the offence of treating is the corrupt inducement to the voter or to,
"refrain from voting, which may be given at any time, although for obvious reasons it is",
usually given at or shortly before the election. 'Treating' is defined in section 171E.,
[s 171B.3] Supreme Court on 'freebies'.—,
"In S Subramaniam Balaji v Government of Tamil Nadu,9. the Supreme Court held that",
freebies promised by political parties in their election manifestos shake the roots of,
"free and fair polls, and directed the Election Commission to frame guidelines for",
regulating contents of election manifestos and undue influence at elections.,
"1. Chapter IXA (containing of sections 171A to 171-I) ins. by Act 39 of 1920, section 2.",
"5. Statement of Objects and Reasons, Gazette of India, 1920, Part V, p 135, section 8.",
"6. Deepak Ganpatrao v Government of Maharashtra, 1999 Cr LJ 1224 (Bom).",
"7. Iqbal Singh v Gurdas Singh, AIR 1976 SC 27 [LNIND 1975 SC 354] : (1976) 3 SCC 284 [LNIND",
1975 SC 354] : 1976 (1) SCR 884 [LNIND 1975 SC 354] .,
8. Ibid.,
"9. S Subramaniam Balaji v Government of Tamil Nadu, 6 Mad LJ 307 : 2013 (8) Scale 249 [LNIND",
2013 SC 627] .,
THE INDIAN PENAL CODE,
1.,
[CHAPTER IX-A OF OFFENCES RELATING TO ELECTIONS,
[s 171C] Undue influence at elections.,
(1) Whoever voluntarily interferes or attempts to interfere with the free exercise of,
any electoral right commits the offence of undue influence at an election.,
"(2) Without prejudice to the generality of the provisions of sub-section (1),",
whoever—,
"(a) threatens any candidate or voter, or any person in whom a candidate or",
"voter is interested, with injury of any kind, or",
(b) induces or attempts to induce a candidate or voter to believe that he or,
any person in whom he is interested will become or will be rendered an,
"object of Divine displeasure or of spiritual censure,",
shall be deemed to interfere with the free exercise of the electoral right,
"of such candidate or voter, within the meaning of sub-section (1).",
"(3) A declaration of public policy or a promise of public action, or the mere",
"exercise of a legal right without intent to interfere with an electoral right, shall",
not be deemed to be interference within the meaning of this section.,
COMMENT.—,
Exercise of undue influence.—This section defines 'undue influence at elections'.,
Undue influence at an election is defined as the voluntary interference or attempted,
"interference with the right of any person to stand, or not to stand as, or withdraw from",
"being, a candidate, or to vote or refrain from voting. This covers all threats of injury to",
person or property and all illegal methods of persuasion and any interference with the,
liberty of the candidates or the electors. The inducing or attempting to induce a person,
to believe that he will become the object of divine displeasure is also interference.10.,
"Where an attempt or threat is proved, it is unnecessary to prove that any person was in",
fact prevented from voting because the offence is complete.,
The expression 'free exercise of his electoral right' does not mean that a voter is not to,
be influenced. This expression has to be read in the context of an election in a,
democratic society and the candidates and their supporters must naturally be allowed,
to canvass support by all legal and legitimate means. This exercise of the right by the,
candidate or his supporters to canvass support does not interfere or attempt to,
interfere with the free exercise of an electoral right.11. The Supreme Court has,
accepted the proposition that something more than a mere act of canvassing would be,
necessary and that something more is specified in clauses (a) and (b) of the section.,
"Applying this to the facts, the court laid down that the appeal, even if true, of the",
Chairman of the Minorities Commission who happened to be the retired judge of the,
"Supreme Court, to the voters to cast their votes in favour of a particular candidate [who",
"was returned], does not make out the offence enumerated in this section.12. A",
message sent to the secretary of a party to boycott the election does not amount to,
interference within the meaning of this section as members of the party are still free to,
vote as they like.13.,
[s 171C.1] CASES.—,
A candidate informed the voters that he was Chalanti Vishnu and representative of Lord,
Jagannath himself and that any person who did not vote for him would be a sinner,
against the Lord and the Hindu religion; it was held that such propaganda would,
amount to an offence under section 171F read with this section.14.,
The statement was made by a member of the ruling party to the Republican party of,
"India (RPI) that if it supported the alliance in parliamentary elections, the latter would",
make one member of the RPI as Deputy Chief Minister of State. It was held that this did,
not amount to giving offer to any individual for inducing him to exercise his electoral,
right in a particular manner.15.,
"1. Chapter IXA (containing of sections 171A to 171-I) ins. by Act 39 of 1920, section 2.",
"10. Ram Dial v Sant Lal, AIR 1959 SC 855 [LNIND 1959 SC 73] : 1959 Supp (2) SCR 748 .",
"11. Shiv Kirpal Singh v VV Giri, AIR 1970 SC 2097 [LNIND 1970 SC 367] : (1970) 2 SCC 567",
"[LNIND 1970 SC 367] . See also M Anbalagan v State, 1981 Cr LJ 1179 (Mad), Babu Rao Patel,",
AIR 1968 SC 904 [LNIND 1967 SC 314] : 1968 (2) SCR 133 [LNIND 1967 SC 314] .,
"12. Charan Lal Sahu v Giani Zail Singh, AIR 1984 SC 309 [LNIND 1983 SC 371] : (1984) 1 SCC",
390 [LNIND 1983 SC 371] .,
"13. M Anbalagan, Supra.",
"14. Raj Raj Deb v Gangadhar, AIR 1964 Ori 1 [LNIND 1962 ORI 29] : 1964 Cr LJ 57 .",
"15. Deepak Ganpatrao v Government of Maharashtra, 1999 Cr LJ 1224 (Bom).",
THE INDIAN PENAL CODE,
1.,
[CHAPTER IX-A OF OFFENCES RELATING TO ELECTIONS,
[s 171D] Personation at elections.,
Whoever at an election applies for a voting paper or votes in the name of any other,
"person, whether living or dead, or in a fictitious name, or who having voted once at",
"such election applies at the same election for a voting paper in his own name, and",
"whoever abets, procures or attempts to procure the voting by any person in any such",
"way, commits the offence or personation at an election:",
16.[Provided that nothing in this section shall apply to a person who has been,
authorised to vote as proxy for an elector under any law for the time being in force in,
so far as he votes as proxy for such elector.],
COMMENT.—,
Personation.—This section defines 'personation at elections'. It covers a person who,
"attempts to vote in another person's name or in a fictitious name, as well as a voter",
"who attempts to vote twice and any person who abets, procures, or attempts to",
"procure, such voting.",
The accused must have been actuated by a corrupt motive.17.,
What is to be proved in a prosecution for the offence under section 171-D is that the,
"indictee ""applied for voting (ballot) paper"" in the name of any person. It is not the law",
that it must be proved invariably that he had voted or had attempted to vote in the,
election. All that need be proved is that the indictee had applied for a voting paper. The,
legislature appears to have carefully worded the statutory provision.18. The applicant,
was accused of having abetted the personation of a voter at a Municipal election in,
"that, not being himself acquainted with the person who came forward to vote, he had,",
"on the advice of others, put his name to a ""signature sheet"" in token that the thumb",
mark made by the voter was that of the person entitled to vote under a certain name on,
"the electoral roll. It was held that, inasmuch as the acts done by the applicant",
"apparently constituted the specific offence provided for by section 171F, he could only",
"be tried for that offence, and could not be tried for abetment of the general offence",
provided for by section 465.19.,
"1. Chapter IXA (containing of sections 171A to 171-I) ins. by Act 39 of 1920, section 2.",
"16. Ins. by the Election Laws (Amendment) Act, 2003 (Act 24 of 2003), section 5 (w.e.f. 22-9-",
2003).,
"17. Venkayya, (1929) 53 Mad 444.",
"18. E Anoop v State, 2007 Cr LJ 2968 : 2006 (3) Ker LJ 50 .",
"19. Ram Nath, (1924) 47 All 268 . See Achcha Bhoomanna v Court of Distt. Munsif (Election",
"Court), AIR 1992 AP 157 [LNIND 1991 AP 162] .",
THE INDIAN PENAL CODE,
1.,
[CHAPTER IX-A OF OFFENCES RELATING TO ELECTIONS,
[s 171E] Punishment for bribery.,
Whoever commits the offence of bribery shall be punished with imprisonment of,
"either description for a term which may extend to one year, or with fine, or with both:",
Provided that bribery by treating shall be punished with fine only.,
"Explanation.—""Treating"" means that form of bribery where the gratification consists in",
"food, drink, entertainment, or provision.",
"1. Chapter IXA (containing of sections 171A to 171-I) ins. by Act 39 of 1920, section 2.",
THE INDIAN PENAL CODE,
1.,
[CHAPTER IX-A OF OFFENCES RELATING TO ELECTIONS,
[s 171F] Punishment for undue influence or personation at an election.,
Whoever commits the offence of undue influence or personation at an election shall,
be punished with imprisonment of either description for a term which may extend to,
"one year or with fine, or with both.",
COMMENT.—,
"Punishment for bribery, personation.— The Chief Minister of a State was campaigning",
for himself on a date before elections. He was directed by the Election Commissioner,
under threat of taking drastic action to return to his State headquarters. He was,
prevented by the order from exercising his voting right at the place where he was,
registered as a voter. There was no allegation that he used any violence in the election,
process. Directions were also oral and no reasons were given. It was held that the,
"directions constituted a violation of section 171F.20. The words ""all forms of",
"entertainment"" in the Explanation to section 123 (1) of the Representation of the",
People Act apparently refer to offence of treating found in section 171-E of the Indian,
Penal Code.21. Accused entered into a polling booth and handed over a slip showing,
the name of a voter other than himself. He could not give any explanation as to why he,
entered into the polling booth. His conduct of appearing before polling officials and,
"handing over the slip which does not relate to him, is sufficient declaration of his",
intention to apply vote for him. It was held that offence committed by him required a,
deterrent substantive sentence of imprisonment.22.,
"1. Chapter IXA (containing of sections 171A to 171-I) ins. by Act 39 of 1920, section 2.",
"20. Court on its Own Motion v UOI, 2001 Cr LJ 225 (P&H) : (2000) ILR 2 P&H 288. The Court",
could not direct the Magistrate to take cognizance under section 190 because of the bar under,
section 197. Aggrieved party would have to launch prosecution.,
"21. Iqbal Singh v Gurdas Singh, AIR 1976 SC 27 [LNIND 1975 SC 354] : (1976) 3 SCC 284 [LNIND",
1975 SC 354] : 1976 (1) SCR 884 [LNIND 1975 SC 354] .,
"22. E Anoop v State, 2007 Cr LJ 2968 : 2006 (3) Ker LJ 50 .",
THE INDIAN PENAL CODE,
1.,
[CHAPTER IX-A OF OFFENCES RELATING TO ELECTIONS,
[s 171G] False statement in connection with an election.,
Whoever with intent to affect the result of an election makes or publishes any,
statement purporting to be a statement of fact which is false and which he either,
"knows or believes to be false or does not believe to be true, in relation to the personal",
character or conduct of any candidate shall be punished with fine.,
COMMENT.—,
False statements in elections.—False statements of fact in relation to the personal,
character or conduct of a candidate are penalised by this section. General imputations,
of misconduct unaccompanied by any charges of particular acts of misconduct cannot,
properly be described as statements of fact within the meaning of this section.23.,
An offence under this section is not a species of the more general offence of,
defamation. There may be cases under this section which do not fall under section 499,
and vice versa.24.,
"1. Chapter IXA (containing of sections 171A to 171-I) ins. by Act 39 of 1920, section 2.",
"23. AS Radhakrishna Ayyar v Emperor, AIR 1932 Mad 511 : 1932 Mad WN 1086.",
"24. Bhagolelal Kwalchand Darji v Emperor, AIR 1940 Nag 249 : [1942] ILR Nag 208.",
THE INDIAN PENAL CODE,
1.,
[CHAPTER IX-A OF OFFENCES RELATING TO ELECTIONS,
[s 171H] Illegal payments in connection with an election.,
Whoever without the general or special authority in writing of a candidate incurs or,
"authorises expenses on account of the holding of any public meeting, or upon any",
"advertisement, circular or publication, or in any other way whatsoever for the purpose",
"of promoting or procuring the election of such candidate, shall be punished with fine",
which may extend to five hundred rupees:,
Provided that if any person having incurred any such expenses not exceeding the,
amount of ten rupees without authority obtains within ten days from the date on,
"which such expenses were incurred the approval in writing of the candidate, he shall",
be deemed to have incurred such expenses with the authority of the candidate.,
COMMENT.—,
"Illegal payments in elections.—This section makes it illegal for any one, unless",
"authorized by a candidate, to incur any expenses in connection with the promotion of",
the candidate's election.,
"1. Chapter IXA (containing of sections 171A to 171-I) ins. by Act 39 of 1920, section 2.",
THE INDIAN PENAL CODE,
1.,
[CHAPTER IX-A OF OFFENCES RELATING TO ELECTIONS,
[s 171-I] Failure to keep election accounts.,
Whoever being required by any law for the time being in force or any rule having the,
force of law to keep accounts of expenses incurred at or in connection with an,
election fails to keep such accounts shall be punished with fine which may extend to,
five hundred rupees.],
COMMENT.—,
Failure to keep accounts.—This section punishes failure to keep accounts of expenses,
"incurred in connection with an election, if such accounts are required to be kept by any",
law or rule having the force of law.,
"1. Chapter IXA (containing of sections 171A to 171-I) ins. by Act 39 of 1920, section 2.",
THE INDIAN PENAL CODE,
CHAPTER X OF CONTEMPTS OF THE LAWFUL AUTHORITY OF PUBLIC,
SERVANTS,
This Chapter contains penal provisions intended to enforce obedience to the lawful,
"authority of public servants. Contempt of the lawful authority of Courts of Justice, of",
"Officers of Revenue, Officers of Police, and other public servants are punishable under",
this head.,
[s 172] Absconding to avoid service of summons or other proceeding.,
"Whoever absconds1 in order to avoid being served with a summons, notice or order,2",
"proceeding from any public servant, legally competent, as such public servant, to",
"issue such summons, notice or order, shall be punished with simple imprisonment for",
"a term which may extend to one month, or with fine which may extend to five hundred",
"rupees, or with both;",
"or, if the summons or notice or order is to attend in person or by agent, or to 1.",
"[produce a document or an electronic record in a Court of Justice], with simple",
"imprisonment for a term which may extend to six months, or with fine which may",
"extend to one thousand rupees, or with both.",
COMMENT.—,
Absconding to avoid summons.—Absconding to avoid service of summons or other,
proceeding is similar to non-attendance in obedience to an order from a public servant.,
The object of this section is to punish an offender for the contempt his conduct,
indicates of the authority whose process he disregards.,
The second clause applies where the summons or notice or order is (1) for attendance,
in Court; or (2) for production of a document.,
1. 'Absconds'.—This term is not to be understood as implying necessarily that a person,
leaves the place in which he is. Its etymological and ordinary sense is to hide oneself;,
"and it matters not whether a person departs from a place or remains in it, if he",
"conceals himself. If a person, having concealed himself before process issues,",
"continues to do so after it is issued, he absconds.2.",
"2. 'Summons, notice or order'.—The summons, notice or order referred to, should be",
addressed to the same person whose attendance is required and who absconds to,
"avoid being served with such a 'summons, notice or order'. A warrant is not an order",
served on an accused; it is simply an order to the police to arrest him.3. It is not an,
offence under this section to abscond to avoid arrest under a warrant.4.,
[s 172.1] Bar to take Cognizance:,
"As per section 195(1)(a)(i) of the Code of Criminal Procedure 1973, (Cr PC, 1973) No",
court shall take cognizance of any offence punishable under S. 172 to 188 (both,
"inclusive) of the Indian Penal Code (45 of 1860, except on the complaint in writing of",
'the public servant concerned' or of some other public servant to whom he is,
administratively subordinate. When the Court in its discretion is disinclined to,
"prosecute the wrongdoers, no private complainant can be allowed to initiate any",
criminal proceeding in his individual capacity as it would be clear from the reading of,
the section itself which is to the effect that no Court can take cognizance of any,
"offence punishable under sections 172–188 of the Indian Penal Code (IPC, 1860)",
except on the written complaint of 'the public servant concerned' or of some other,
public servant to whom he is administratively subordinate.5.,
"1. Subs. by Act 21 of 2000, section 91 and Sch. I, for ""to produce a document in a Court of",
"Justice"" (w.e.f. 17-10-2000).",
"2. Srinivasa Ayyangar, (1881) 4 Mad 393, 397.",
"3. Lakshmi, (1881) Unrep. Cr C 152.",
"4. Annawadin, (1923) 1 Ran 218.",
"5. State of UP v Mata Bhikh, (1994) 4 SCC 95 [LNIND 1994 SC 311] : JT 1994 (2) SC 565 [LNIND",
1994 SC 311] : (1994) 2 Scale 235 : (1994) 1 SCC (Cr) 831 : 1994 (2) SCR 368 [LNIND 1994 SC,
311] .,
THE INDIAN PENAL CODE,
CHAPTER X OF CONTEMPTS OF THE LAWFUL AUTHORITY OF PUBLIC,
SERVANTS,
This Chapter contains penal provisions intended to enforce obedience to the lawful,
"authority of public servants. Contempt of the lawful authority of Courts of Justice, of",
"Officers of Revenue, Officers of Police, and other public servants are punishable under",
this head.,
"[s 173] Preventing service of summons or other proceeding, or preventing",
publication thereof.,
"Whoever in any manner intentionally prevents the serving on himself, or on any other",
"person, of any summons, notice or order proceeding from any public servant legally",
"competent, as such public servant, to issue such summons, notice or order,",
"or intentionally prevents the lawful affixing to any place of any such summons, notice",
"or order,",
"or intentionally removes any such summons, notice or order from any place to which",
"it is lawfully affixed,",
"or intentionally prevents the lawful making of any proclamation, under the authority of",
"any public servant legally competent, as such public servant, to direct such",
"proclamation to be made,",
shall be punished with simple imprisonment for a term which may extend to one,
"month, or with fine which may extend to five hundred rupees, or with both;",
"or, if the summons, notice, order or proclamation is to attend in person or by agent, or",
"6.[to produce a document or electronic record in a Court of Justice], with simple",
"imprisonment for a term which may extend to six months, or with fine which may",
"extend to one thousand rupees, or with both.",
COMMENT.—,
Preventing service of summons.—This section punishes intentional prevention of the,
"service of summons, notice or order.",
"A refusal to sign a summons,7. a refusal to receive a summons8. and the throwing",
"down of a summons after service,9. do not constitute the offence of intentionally",
"preventing the service of a summons under this section. Under the Cr PC, 1973 the",
mere tender of a summons is sufficient and a refusal by a person to receive it does not,
expose him to the penalty of this section. Actual delivery is not necessary to complete,
"the service.10. Chapter X, sections 172–190 of the IPC, 1860 deal with the offences",
"constituting ""Contempts of the Lawful authority of Public Servants"". A Magistrate could",
"be covered by the definition of a 'Public Servant' given by section 21 of the IPC, 1860.",
"But the sections given in Chapter X of the IPC, 1860 relate to particular kinds of",
contempt of the lawful authority of Public Servants and none of these cover the kind of,
acts which were committed by the accused with the object of the stifling a,
prosecution.11.,
"6. Subs. by Act 21 of 2000, section 91 and Sch. I, for ""to produce a document in a Court of",
"Justice"" (w.e.f. 17-10-2000).",
"7. Kalya Fakir, (1868) 5 BHC (Cr C) 34; Krishna Gobinda Das, (1892) 20 Cal 358 .",
"8. Punamatai, (1882) 5 Mad 199.",
"9. Arumuga Nadan, (1882) 5 Mad 200 (n), 1 Weir 79.",
"10. Sahedeo Rai, (1918) 40 All 577 .",
"11. Waryam Singh v Sadhu Singh, AIR 1972 SC 905 : (1972) 1 SCC 796 : 1972 Cr LJ 635 : (1972)",
1 SCC (Cr) 477; TN Godavarman Thirumulpad (89) v UOI. (2006) 10 SCC 486 : (2007) 9 Scale 272,
.,
THE INDIAN PENAL CODE,
CHAPTER X OF CONTEMPTS OF THE LAWFUL AUTHORITY OF PUBLIC,
SERVANTS,
This Chapter contains penal provisions intended to enforce obedience to the lawful,
"authority of public servants. Contempt of the lawful authority of Courts of Justice, of",
"Officers of Revenue, Officers of Police, and other public servants are punishable under",
this head.,
[s 174] Non-attendance in obedience to an order from public servant.,
"Whoever, being legally bound to attend in person or by an agent at a certain place and",
"time in obedience to a summons, notice, order or proclamation proceeding from any",
"public servant legally competent, as such public servant, to issue the same,",
"intentionally omits to attend at that place or time, or departs from the place where he",
"is bound to attend before the time at which it is lawful for him to depart,",
shall be punished with simple imprisonment for a term which may extend to one,
"month, or with fine which may extend to five hundred rupees, or with both,",
"or, if the summons, notice, order or proclamation is to attend in person or by agent in",
"a Court of Justice, with simple imprisonment for a term which may extend to six",
"months, or with fine which may extend to one thousand rupees, or with both.",
ILLUSTRATIONS,
"(a) A, being legally bound to appear before the 12.[High Court] at Calcutta, in",
"obedience to a subpoena issuing from that Court, intentionally omits to appear.",
A has committed the offence defined in this section.,
"(b) A, being legally bound to appear before a 13.[District Judge] as a witness, in",
"obedience to a summons issued by that 14.[District Judge], intentionally omits",
to appear. A has committed the offence defined in this section.,
COMMENT.—,
Non-attendance.—The offence contemplated by this section is an intentional omission,
to appear—,
"(1) at a particular specified15. place in India,16.",
"(2) at a particular time,",
"(3) before a specified public functionary,",
"(4) in obedience to a summons, notice or order (written or verbal),17. not defective",
"in form,18. and",
(5) issued by an officer having jurisdiction19. in the matter.,
A conviction cannot be had unless the person summoned,
"(1) was legally bound to attend, and",
(2) refused or intentionally omitted to attend.20.,
"[s 174.1] CASES.—Wilful departure before, lawful time.—",
"Where a man in obedience to a summons attended a Magistrate's Court at 10 a.m., but",
"finding the Magistrate not present at the time mentioned in the summons, departed",
"without waiting for a reasonable time, it was held that he was guilty of an offence under",
this section.21.,
[s 174.2] Public servant absent.—,
"Where a public servant was absent on a date fixed in the summons, the person",
"summoned could not be convicted, though he purposely failed to attend.22.",
[s 174.3] Police Notice.—,
If the accused were not within the jurisdiction of the police station or adjoining police,
"station while being served with an order under section 160, Cr PC, 1973, they were not",
legally bound to attend before the requisitioning police-officer and as such on their,
"failure to attend, their conviction under section 174, IPC, 1860, could not be",
maintained.23.,
[s 174.4] Notice by Railway Protection Force.—,
Enquiry conducted by an officer of the Railway Protection Force being in the nature of a,
"judicial proceeding under section 9 of the Railway Property (Unlawful Possession) Act,",
"1966, any person summoned by such officer to produce any document or give",
"evidence, shall be bound to produce such document and to state the truth in course of",
"his examination. Failure to do so or furnishing of false documents, etc., will entail",
"prosecution under sections 174, 175, 179, 180 and 193, IPC, 1860, as the case may",
be.24.,
"12. Subs. by the A.O. 1950, for ""Supreme Court"".",
"13. Subs. by the A.O. 1950, for ""Supreme Court"".",
"14. Subs. by the A.O. 1950, for ""Zila Judge"".",
"15. Ram Saran, (1882) 5 All 7.",
"16. Paranga v State, (1893) 16 Mad 463.",
"17. Guman, (1873) Unrep. Cr C 75 : (1870) 5 MHC (Appx) 15.",
"18. Krishtappa, (1896) 20 Mad 31.",
"19. Venkaji Bhaskar, (1871) 8 BHC (Cr C) 19 : (1865) 1 Weir 87.",
"20. Sreenath Ghose, (1868) 10 WR (Cr) 33.",
"21. Kisan Bapu, (1885) 10 Bom 93.",
"22. Krishtappa, sup.",
"23. Krishan, 1975 Cr LJ 620 (HP).",
"24. BC Saxena, 1983 Cr LJ 1432 (AP).",
THE INDIAN PENAL CODE,
CHAPTER X OF CONTEMPTS OF THE LAWFUL AUTHORITY OF PUBLIC,
SERVANTS,
This Chapter contains penal provisions intended to enforce obedience to the lawful,
"authority of public servants. Contempt of the lawful authority of Courts of Justice, of",
"Officers of Revenue, Officers of Police, and other public servants are punishable under",
this head.,
25.[[s 174-A] Non-appearance in response to a proclamation under section 82,
of Act 2 of 1974.,
Whoever fails to appear at the specified place and the specified time as required by a,
proclamation published under sub-section (1) of section 82 of the Code of Criminal,
"Procedure, 1973 shall be punished with imprisonment for a term which may extend to",
"three years or with fine or with both, and where a declaration has been made under",
"sub-section (4) of that section pronouncing him as a proclaimed offender, he shall be",
punished with imprisonment for a term which may extend to seven years and shall,
also be liable to fine.],
COMMENT.—,
"Cr PC (Amendment) Act, 2005—Clause 44.—This clause amends the IPC, 1860 as",
"follows, namely:—",
Clause 12 seeks to insert new sub-sections (4) and (5) in section 82 of the Code to,
"provide for the declaration of a person as proclaimed offender, if he fails to appear in",
spite of the proclamation published under sub-section (1) of that section. In order to,
curb the tendency on the part of criminals not to attend the Court in response to,
proclamation published under sub-section (1) or further proclamation issued under,
"sub-section (4) declaring the accused as ""Proclaimed Offender"" a new section 174-A is",
being added to the Indian Penal Code to prescribe punishment for such offender.,
[Notes on Clauses.],
If Investigating Officer submits charge sheet without arresting the accused persons,
"(unless he is on bail), it can be submitted only if he has been declared absconder and",
"the case under section 174-A IPC, 1860 has also been registered as a result of this",
proclamation.26.,
"The offence under section 174A IPC, 1860 which arises out of the proceedings",
conducted during the main case can be tried and disposed of by the same Court.,
"Lodging of separate FIR for commission of offence under section 174 IPC, 1860 is not",
always required.27.,
"25. Ins. by Cr PC (Amendment) Act, 2005 (25 of 2005), section 44(b) (w.e.f. 23-6-2006 vide",
"Notfn. No. SO 923(E), dated 21 June 2006.",
"26. Iqbal v State of UP, 2013 Cr LJ 1332 (All).",
"27. A Krishna Reddy v CBI, 2017 (5) ADR 635.",
THE INDIAN PENAL CODE,
CHAPTER X OF CONTEMPTS OF THE LAWFUL AUTHORITY OF PUBLIC,
SERVANTS,
This Chapter contains penal provisions intended to enforce obedience to the lawful,
"authority of public servants. Contempt of the lawful authority of Courts of Justice, of",
"Officers of Revenue, Officers of Police, and other public servants are punishable under",
this head.,
[s 175] Omission to produce 28.[document or electric record] to public servant,
by person legally bound to produce it.,
"Whoever, being legally bound to produce or deliver up any 29.[document or electronic",
"record] of any public servant, as such, intentionally omits so to produce or deliver up",
"the same, shall be punished with simple imprisonment for a term which may extend to",
"one month, or with fine which may extend to five hundred rupees, or with both,",
"or, if the 30.[document or electronic record] is to be produced or delivered up to a",
"Court of Justice, with simple imprisonment for a term which may extend to six",
"months, or with fine which may extend to one thousand rupees, or with both.",
ILLUSTRATION,
"A, being legally bound to produce a document before a 31.[District Court], intentionally",
omits to produce the same. A has committed the offence defined in this section.,
COMMENT—,
This section punishes persons who refuse to produce documents which they are,
legally bound to produce before a public servant. From reading of section 345 of the Cr,
"PC, 1973, it is clear that offences under sections 175, 178, 179, 180 or 228 would",
"constitute contempt, only if they are committed in the view or presence of the Court.",
"This would also show that offences under sections 175, 178, 179, 180 or 228 per se do",
"not amount to contempt. They are contempt only if they are committed ""in the view or",
"presence of the Court""; otherwise they remain offences under the IPC, 1860",
simpliciter.32.,
"28. Subs. by Act 21 of 2000, section 91 and Sch. I, for ""document"" (w.e.f. 17-10-2000).",
"29. Subs. by Act 21 of 2000, section 91 and Sch. I, for ""document"" (w.e.f. 17-10-2000).",
"30. Subs. by Act 21 of 2000, section 91 and Sch. I, for ""document"" (w.e.f. 17-10-2000).",
"31. Subs. by the A.O. 1950, for ""Zila Court"".",
"32. Arun Paswan v State of Bihar, AIR 2004 SC 721 [LNIND 2003 SC 1085] : (2004) 5 SCC 53",
[LNIND 2003 SC 1085] .,
THE INDIAN PENAL CODE,
CHAPTER X OF CONTEMPTS OF THE LAWFUL AUTHORITY OF PUBLIC,
SERVANTS,
This Chapter contains penal provisions intended to enforce obedience to the lawful,
"authority of public servants. Contempt of the lawful authority of Courts of Justice, of",
"Officers of Revenue, Officers of Police, and other public servants are punishable under",
this head.,
[s 176] Omission to give notice or information to public servant by person,
legally bound to give it.,
"Whoever, being legally bound to give any notice or to furnish information on any",
"subject to any public servant, as such, intentionally omits to give such notice or to",
"furnish such information in the manner and at the time required by law, shall be",
"punished with simple imprisonment for a term which may extend to one month, or",
"with fine which may extend to five hundred rupees, or with both;",
"or, if the notice or information required to be given respects the commission of an",
"offence, or is required for the purpose of preventing the commission of an offence, or",
"in order to the apprehension of an offender, with simple imprisonment for a term",
"which may extend to six months, or with fine which may extend to one thousand",
"rupees, or with both;",
"33.[or, if the notice or information required to be given is required by an order passed",
"under sub-section (1) of section 565 (now 356) of the Code of Criminal Procedure,",
1898 (now 1973)34. with imprisonment of either description for a term which may,
"extend to six months, or with fine which may extend to one thousand rupees, or with",
both.],
COMMENT.—,
Omission to give notice or information.—This section applies to persons upon whom,
"an obligation is imposed by law to furnish certain information to public servants, and",
the penalty which the law provides is intended to apply to parties who commit an,
"intentional breach of such obligation,35. and not where the public servants have already",
obtained the information from other sources.36.,
A doctor is not obliged to inform the police when he treats a patient who has met with,
vehicle accident.37.,
[s 176.1] CASE.—,
It was not within the scope of the Magistrate to hold investigative officer guilty for,
violation of his official duties who had already sought extension to complete the,
investigation. Omission on the part of IO to complete the investigation within 60 days,
"from date of arrest is not covered under provisions of section 176, IPC, 1860.38. Under",
"section 39 (i)(v) Cr PC, 1973, where a person is aware of commission or an intention to",
"commit an offence under sections 302, 303 and 304, IPC, 1860, he is bound to give",
information to the nearest Magistrate or police-officer of such commission or intention,
and failure to do so is punishable under this section. Where the mother of a murder,
suspect merely said that her son and daughter-in-law went to bed at about 10 P.M. and,
"that early next morning, her son came out and ran away and she found her daughter-in-",
"law lying dead on the bed, it was held that her failure to inform the police did not",
"constitute an offence under section 176, IPC, 1860, as she was neither aware that a",
murder was going to be committed nor aware that a murder had been committed.39.,
"33. Added by Act 22 of 1939, section 2.",
"34. Now see section 356 of the Code of Criminal Procedure, 1973 (2 of 1974).",
"35. Phool Chand Brojobassee, (1871) 16 WR (Cr) 35.",
"36. Sashi Bhusan Chuckrabutty, (1878) 4 Cal 623 ; Pandya, (1884) 7 Mad 436; Gopal Singh,",
(1982) 20 Cal 316 .,
"37. SN Naik v State of Maharashtra, 1996 Cr LJ 1463 (Bom).",
"38. Manoj Kumar Gautam v State of UP, 2009 Cr LJ 3176 (Pat).",
"39. TS John v State, 1984 Cr LJ 753 (Ker). See also Geetha v Sub-Inspector of Excise, Mudigere,",
2007 Cr LJ 3496 (Kar).,
THE INDIAN PENAL CODE,
CHAPTER X OF CONTEMPTS OF THE LAWFUL AUTHORITY OF PUBLIC,
SERVANTS,
This Chapter contains penal provisions intended to enforce obedience to the lawful,
"authority of public servants. Contempt of the lawful authority of Courts of Justice, of",
"Officers of Revenue, Officers of Police, and other public servants are punishable under",
this head.,
[s 177] Furnishing false information.,
"Whoever, being legally bound to furnish information on any subject to any public",
"servant, as such, furnishes, as true, information on the subject which he knows or has",
"reason to believe to be false, shall be punished with simple imprisonment for a term",
"which may extend to six months, or with fine which may extend to one thousand",
"rupees, or with both;",
"or, if the information which he is legally bound to give respects the commission of an",
"offence, or is required for the purpose of preventing the commission of an offence, or",
"in order to the apprehension of an offender, with imprisonment of either description",
"for a term which may extend to two years, or with fine, or with both.",
ILLUSTRATIONS,
"(a) A, a landholder, knowing of the commission of a murder within the limits of his",
"estate, wilfully misinforms the Magistrate of the district that the death has",
occurred by accident in consequence of the bite of a snake. A is guilty of the,
offence defined in this section.,
"(b) A, a village watchman, knowing that a considerable body of strangers has",
"passed through his village in order to commit a dacoity in the house of Z, a",
"wealthy merchant residing in a neighbouring place, and being bound under",
"clause, 5, section VII, Regulation III, 1821,40. of the Bengal Code, to give early",
and punctual information of the above fact to the officer of the nearest police,
"station, wilfully misinforms the police officer that a body of suspicious",
characters passed through the village with a view to commit dacoity in a certain,
distant place in a different direction. Here A is guilty of the offence defined in,
the later part of this section.,
"41.[Explanation.—In section 176 and in this section the word ""offence"" includes",
"any act committed at any place out of 42.[India], which, if committed in 43.",
"[India], would be punishable under any of the following sections, namely, 302,",
"304, 382, 392, 393, 394, 395, 396, 397, 398, 399, 402, 435, 436, 449, 450, 457,",
"458, 459 and 460; and the word ""offender"" includes any person who is alleged",
to have been guilty of any such act.],
COMMENT.—,
Furnishing false information.—Section 176 deals with the omission to give information;,
this section deals with the giving of false information. Persons who are not under a,
legal obligation to furnish information cannot be dealt with under these sections.44.,
Furnishing false information is distinct from omission to give information. Omission to,
mention about a two-wheeler in the statement of assets and liabilities by a public,
"servant is not an offence under section 177 IPC, 1860.45. It is clear that the accused",
"having been aware of the fact that she belongs to ""Havyak Brahmin"" by caste, furnished",
false information to the authority and obtained admission by producing false caste,
certificate. The ingredients of section 177 are proved.46. In a case where the allegation,
"was that the complainant filed false information in nomination paper, it was held that a",
complaint by the Returning officer is mandatory.47.,
The appellant being a Sarpanch of the Gram Panchayat was legally bound to give,
correct information and issue a correct certificate but he issued a false certificate in,
favour of one Lal Chand that he does not own any land except the land which he has,
"made fit for cultivation, in fact, though Lal Chand owned 13 kanals, 13 marlas and also",
"his wife owned lands in the village Baruhi. Therefore, the ingredients of section 177 of",
the Code were proved as against him.48.,
"[s 177.1] Application of Section 195 and 340 Cr PC, 1973.—",
"Section 195(1), Cr PC, 1973 lays down that no Court shall take cognizance of any",
"offence punishable under sections 172–188, IPC, 1860 except on the complaint in",
writing of the public servant concerned or some other public servant to whom he is,
"administratively subordinate. The provision of section 195(1), Cr PC, 1973 is",
mandatory.49.,
40. Rep. by Act 17 of 1862.,
"41. Added by Act 3 of 1894, section 5.",
"42. The words ""British India"" have successively been subs. by the A.O. 1948, the A.O. 1950 and",
"Act 3 of 1951, section 3 and Sch. (w.e.f. 1-4-1951), to read as above.",
"43. The words ""British India"" have successively been subs. by the A.O. 1948, the A.O. 1950 and",
"Act 3 of 1951, section 3 and Sch. (w.e.f. 1-4-1951), to read as above.",
"44. Ashok Kumar Mittal v Ram Kumar Gupta, (2009) 2 SCC 656 [LNIND 2009 SC 33] : (2009) 1",
SCC (Cr) 836 : (2009) 1 KLT 398 [LNIND 2009 SC 33] : (2009) 1 CHN 184 (SC) : (2009) 234 ELT,
193 .,
"45. Veeranna v State of Karnataka, 2013 Cr LJ (NOC) 335 (Kar).",
"46. State of Karnataka v G M Sumanabai, 2004 Cr LJ 4112 (Kar).",
"47. Amita Trivedi v State of Rajasthan, 2013 Cr LJ (NOC) 240 (Raj). See also Jayalalithaa v",
"Kuppusamy, 2013 Cr LJ 839 (SC) : 2012 (11) Scale 432 [LNIND 2012 SC 756] .",
"48. Bishan Dass v State of Punjab, 2015 Cr LJ 281 : 2014 (9) Scale 690 [LNINDORD 2014 SC",
"21072] . See also State of Karnataka v G M Sumanabai, 2004 Cr LJ 4112 (Kar).",
"49. Lakpa Sherpa v State of Sikkim, 2004 Cr LJ 3488 (Sik). See also Ram Dhan v State of UP,",
2012 (4) Scale 259 [LNIND 2012 SC 1057] : 2012 AIR(SCW) 2500 : 2012 Cr LJ 2419 : (2012) 5,
SCC 536 [LNIND 2012 SC 1057] : AIR 2012 SC 2513 [LNIND 2012 SC 1057] relied on Sachida,
"Nand Singh v State of Bihar, (1998) 2 SCC 493) [LNIND 1998 SC 138] .",
THE INDIAN PENAL CODE,
CHAPTER X OF CONTEMPTS OF THE LAWFUL AUTHORITY OF PUBLIC,
SERVANTS,
This Chapter contains penal provisions intended to enforce obedience to the lawful,
"authority of public servants. Contempt of the lawful authority of Courts of Justice, of",
"Officers of Revenue, Officers of Police, and other public servants are punishable under",
this head.,
[s 178] Refusing oath or affirmation when duly required by public servant to,
make it.,
"Whoever refuses to bind himself by an oath 50.[or affirmation] to state the truth, when",
required so to bind himself by a public servant legally competent to require that he,
"shall so bind himself, shall be punished with simple imprisonment for a term which",
"may extend to six months, or with fine which may extend to one thousand rupees, or",
with both.,
COMMENT.—,
Refusal to take oath.—The refusal to take an oath amounts to contempt of Court. The,
"person refusing may be dealt with under section 345 of the Cr PC, 1973 summarily or",
the Court may proceed under section 195 of the same Code. The penalty of this section,
would not be attracted where the refusal to take oath is justifiable. This observation of,
the Supreme Court occurs in Kiran Bedi and Inder Singh v Committee of Inquiry.51. The,
justification available to the police-officers in question was that they were sought to be,
"cross-examined under oath at the very outset of the inquiry, whereas other officers",
similarly placed were to figure in the cross-examination at a subsequent stage. This,
"procedure was discriminatory, hence, the justification. The Court accordingly held that",
the committee should not have directed a complaint to be filed against them under this,
section.,
"50. Ins. by Act 10 of 1873, section 15.",
"51. Kiran Bedi and Inder Singh v Committee of Inquiry, AIR 1989 SC 714 [LNIND 1989 SC 833] :",
1989 Cr LJ 903 : (1989) 1 SCR 20 [LNIND 1989 SC 833] : (1989) 1 SCC 494 [LNIND 1989 SC 10] .,
THE INDIAN PENAL CODE,
CHAPTER X OF CONTEMPTS OF THE LAWFUL AUTHORITY OF PUBLIC,
SERVANTS,
This Chapter contains penal provisions intended to enforce obedience to the lawful,
"authority of public servants. Contempt of the lawful authority of Courts of Justice, of",
"Officers of Revenue, Officers of Police, and other public servants are punishable under",
this head.,
[s 179] Refusing to answer public servant authorised to question.,
"Whoever, being legally bound to state the truth on any subject to any public servant,",
refuses to answer any question demanded of him touching that subject by such public,
"servant in the exercise of the legal powers of such public servant, shall be punished",
"with simple imprisonment for a term which may extend to six months, or with fine",
"which may extend to one thousand rupees, or with both.",
COMMENT.—,
Refusing to answer questions.—The offence under this section consists in the refusal,
to answer a question which is relevant to the subject concerning which the public,
"servant is authorised to inquire, or which at least touches that subject. Under sections",
121–132 of the Indian Evidence Act a witness is exempted from answering certain,
"questions. If a person gives false answers, then he will be guilty under section 193 and",
not under this section.,
Refusing to answer the question of a police-officer investigating a case under section,
161 of the Criminal Procedure Code is not an offence under this section.52. This,
"section also applies to the accused as the words used in section 161(1) Cr PC, 1973,",
"are ""any person acquainted with facts and circumstances of the case"". Thus, the",
accused too is bound to answer a question put by a police-officer in course of his,
"examination. However, the answer to a question has a tendency to incriminate him; he",
can claim protection under Article 20(3) of the Constitution and refuse to answer. Of,
"course, it is a matter which has to be ultimately decided by the Court.53.",
The matter is entirely different so far the officers of the Railway Protection Force are,
"concerned first, they are not police-officers54. and second, the enquiry conducted by",
"them under sections 8 and 9 of the Railway Property (Unlawful Possession) Act, 1966",
is not a police investigation but should be deemed to be a judicial proceeding.55.,
Section 9 of this special Act specifically lays down that during such enquiry by an RPF,
"officer, persons summoned have to obey summons and state the truth and, therefore,",
"by refusing to answer, such persons would make themselves liable under section 179,",
"IPC, 1860. The question of invoking Article 20(3) of the Constitution does not arise in",
"such a case, as till the complaint is filed under section 190(1)(a), Cr PC, 1973 by the",
"RPF officer, a person cannot be regarded as ""accused of an offence"" within the",
meaning of Article 20(3) of the Constitution.56.,
"52. Mawzanagyi, (1930) 8 Ran 511.",
"53. Nandini Satpathy v PL Dani, 1978 Cr LJ 968 : AIR 1978 SC 1025 .",
"54. State of MP v Chandan Singh, 1980 Cr LJ 1024 (MP); R Muthu v Asst. SI, RPF, 1983 Cr LJ",
"1309 (Mad); State of UP v Durga Prasad, 1974 Cr LJ 1465 : AIR 1974 SC 2136 [LNIND 1974 SC",
248] .,
"55. Durga Prasad, Supra; BC Saxena, 1983 Cr LJ 1432 (AP).",
"56. BC Saxena, Supra; Mohd. Dastgir, 1960 Cr LJ 1159 : AIR 1960 SC 758 .",
THE INDIAN PENAL CODE,
CHAPTER X OF CONTEMPTS OF THE LAWFUL AUTHORITY OF PUBLIC,
SERVANTS,
This Chapter contains penal provisions intended to enforce obedience to the lawful,
"authority of public servants. Contempt of the lawful authority of Courts of Justice, of",
"Officers of Revenue, Officers of Police, and other public servants are punishable under",
this head.,
[s 180] Refusing to sign statement.,
"Whoever refuses to sign any statement made by him, when required to sign that",
statement by a public servant legally competent to require that he shall sign that,
"statement, shall be punished with simple imprisonment for a term which may extend",
"to three months, or with fine which may extend to five hundred rupees, or with both.",
COMMENT—,
The essential ingredients to constitute the offence under this Section are:—,
(i) The accused made a statement before a public servant.,
(ii) The accused was required by public servant to sign such statement.,
(iii) Public servant was legally empowered or competent to require the accused to,
"sign that statement, and",
(iv) That the accused refused to sign statement.57.,
[s 180.1] Refusal to sign.—,
"The statement must be such a one as the accused can be legally required to sign, e.g.,",
"a statement recorded under the provisions of sections 164 and 281(5) of the Cr PC,",
1973 or a statement under sections 8 and 9 of the Railway Property (Unlawful,
"Possession) Act, 1966.58. To attract the offence under section 180 of IPC, 1860, the",
person accused of such offence should be under a legal obligation or compulsion to,
sign the statement or submissions.59.,
"57. Basavaraj Shivarudrappa Sirsi v State of Karnataka, 2011 Cr LJ 4809 (Kar).",
"58. Durga Prasad, and BC Saxena, Supra.",
59. Basavaraj Shivarudrappa Sirsi v State of Karnataka 2011 Cr LJ 4809 (Kar).,
THE INDIAN PENAL CODE,
CHAPTER X OF CONTEMPTS OF THE LAWFUL AUTHORITY OF PUBLIC,
SERVANTS,
This Chapter contains penal provisions intended to enforce obedience to the lawful,
"authority of public servants. Contempt of the lawful authority of Courts of Justice, of",
"Officers of Revenue, Officers of Police, and other public servants are punishable under",
this head.,
[s 181] False statement on oath or affirmation to public servant or person,
authorised to administer an oath or affirmation.,
"Whoever, being legally bound by an oath 60.[or affirmation] to state the truth on any",
subject to any public servant or other person authorized by law to administer such,
"oath 61.[or affirmation], makes, to such public servant or other person as aforesaid,",
"touching the subject, any statement which is false, and which he either knows or",
"believes to be false or does not believe to be true, shall be punished with",
"imprisonment of either description for a term which may extend to three years, and",
shall also be liable to fine.,
COMMENT.—,
False statement on oath.—This section should be compared with section 191. Under it,
"a false statement to any public servant, or other person, authorised to administer oath",
"or affirmation, is punishable.62. It does not apply where the public servant administers",
the oath in a case wholly beyond his jurisdiction63. or where he is not competent to,
make a statement on solemn affirmation.64.,
[s 181.1] Failure to administer oath.—,
"In view of sections 4 and 5 of the Oaths Act, 1969, it is always desirable to administer",
oath or statement may be recorded on affirmation of the witness. The Supreme Court,
"in Rameshwar v State of Rajasthan,65. has categorically held that the main purpose of",
"administering of oath is to render persons who give false evidence, liable to",
prosecution and further to bring home to the witness the solemnity of the occasion and,
"to impress upon him the duty of speaking the truth, further such matters only touch",
"credibility and not admissibility. However, in view of the provisions of section 7 of the",
"Oaths Act, 1969, the omission of administration of oath or affirmation does not",
invalidate any evidence.66.,
"60. Ins. by Act 10 of 1873, section 15.",
"61. Ins. by Act 10 of 1873, section 15.",
"62. Niaz Ali, (1882) 5 All 17 .",
"63. Andy Chetty, (1865) 2 MHC 438 .",
"64. Subba, (1883) 6 Mad 252.",
"65. Rameshwar v State of Rajasthan, AIR 1952 SC 54 [LNIND 1951 SC 76] .",
"66. State of Rajasthan v Darshan Singh, (2012) 5 SCC 789 [LNIND 2012 SC 334] : 2012 AIR",
(SCW) 3036 : 2012 Cr LJ 2908 : 2012 (5) Scale 570 [LNIND 2012 SC 334] .,
THE INDIAN PENAL CODE,
CHAPTER X OF CONTEMPTS OF THE LAWFUL AUTHORITY OF PUBLIC,
SERVANTS,
This Chapter contains penal provisions intended to enforce obedience to the lawful,
"authority of public servants. Contempt of the lawful authority of Courts of Justice, of",
"Officers of Revenue, Officers of Police, and other public servants are punishable under",
this head.,
"67.[[s 182] False information, with intent to cause public servant to use his",
lawful power to the injury of another person.,
Whoever gives to any public servant any information 1 which he knows or believes to,
"be false, intending thereby to cause, or knowing it to be likely that he will thereby",
"cause, such public servant—",
(a) to do or omit anything2 which such public servant ought not to do or omit if the,
true state of facts respecting which such information is given were known by,
"him, or",
(b) to use the lawful power of such public servant to the injury or annoyance of any,
"person,",
shall be punished with imprisonment of either description for a term which,
"may extend to six months, or with fine which may extend to one thousand",
"rupees, or with both.]",
ILLUSTRATIONS,
"(a) A informs a Magistrate that Z, a police-officer, subordinate to such Magistrate,",
"has been guilty of neglect of duty or misconduct, knowing such information to",
"be false, and knowing it to be likely that the information will cause the",
Magistrate to dismiss Z. A has committed the offence defined in this section.,
"(b) A falsely informs a public servant that Z has contraband salt in a secret place,",
"knowing such information to be false, and knowing that it is likely that the",
"consequence of the information will be a search of Z's premises, attended with",
annoyance to Z. A has committed the offence defined in this section.,
(c) A falsely informs a policeman that he has been assaulted and robbed in the,
neighbourhood of a particular village. He does not mention the name of any,
"person as one of his assaitants, but knows it to be likely that in consequence of",
this information the police will make enquiries and institute searches in the,
village to the annoyance of the villages or some of them. A has committed an,
offence under this section.],
COMMENT.—,
Object.—The object of this section is that a public servant should not be falsely given,
information with the intent that he should be misled by a person who believed that,
"information to be false, and intended to mislead him. This section does not require that",
action must always be taken if the person who makes the public servant knows or,
believes that action will be taken.68.,
[s 182.1] Ingredients.—,
(1) Giving of an information to a public servant.,
(2) Information must have been known or believed to be false by the giver.,
"(3) Such false information was given with intention to cause, or knowing that it is likely",
to cause such public servant (a) to do or omit anything which he ought not to do or,
"omit to do if the true facts were known to him, or (b) to use his lawful power to the",
injury or annoyance of any person.69.,
1. 'Any information'.—The Bombay and the Patna High Courts have ruled that any 'false,
"information' given to a public servant, with the intent mentioned in the section, is",
punishable under it whether that information is volunteered by the informant or is given,
in answer to questions put to him by the public servant.70. Where a driver of a motor,
"vehicle, who had no licence with him, on being asked his name by a police-officer, gave",
"a fictitious name, it was held that he had committed an offence under this section.71.",
The section makes no distinction between information relating to a cognizable offence,
"and one relating to a non-cognizable offence, nor is there anything in the section to",
justify the conclusion that it applies only to cases in which the information given to any,
public servant relates to a cognizable offence.72.,
2. 'To do or omit anything'.—It is not necessary that the public servant to whom false,
information is given should be induced to do anything or to omit to do anything in,
consequence of such information. The gist of the offence is not what action may or,
"may not be taken by the public servant to whom false information is given, but the",
intention or knowledge (to be inferred from his conduct) of the person supplying such,
information.73. Section 182 does not require that action must always be taken if the,
person who moves the public servant knows or believes that action would be taken.74.,
Under this clause it is not necessary to show that the act done would be to the injury or,
annoyance of any third person.75.,
[s 182.2] Condition precedent for prosecution.—,
"This section has to be read in conjunction with section 195(1)(a) of the Cr PC, 1973",
"which requires a complaint for offences under sections 172–188, IPC, 1860, to be filed",
by the public servant concerned or by some other public servant to whom he is,
administratively subordinate.76. It is mandatory to follow the procedure prescribed,
under section 195 of the Code while initiating action against an accused for an offence,
"punishable under section 182, IPC, 1860 else such action is rendered void ab initio.77.",
"Thus, investigation into an offence under section 182, IPC, 1860 can be done only on",
the complaint given by a competent public servant; taking note of the fact that the,
"procedure contemplated is not complied within the line with section 195, Cr PC, 1973",
"as well as the settled legal position evolved through the decisions of the Apex Court,",
"the cognizance assumed by the Magistrate for the offence under section 182, IPC,",
1860 is erroneous and not sustainable in law.78. Similar view has been expressed by,
"the Hon'ble Supreme Court in PD Lakhani v State of Punjab,79. relying upon its earlier",
judgment in Daulat Ram's case (supra) and Mata Bhikh's case.80. It is held that:,
"no complaint, therefore, could be lodged before the learned Magistrate by the Station House",
"Officer. Even assuming that the same was done under the directions of SP, Section 195, in",
"no uncertain terms, directs filing of an appropriate complaint petition only by the public",
"servant concerned or his superior officer. It, therefore, cannot be done by an inferior officer.",
It does not provide for delegation of the function of the public servant concerned81.,
[s 182.3] Private Complaint.—,
"Since the offence under section 182 is covered by the bar of section 195 Cr PC, 1973",
there is absolutely no scope for filing a private complaint. The embargo in section 195,
"Cr PC, 1973 takes away the right to prosecute in respect of the aforesaid offences by",
"way of filing a private complaint. Going by section 195 Cr PC, 1973 no Court shall take",
"cognizance except in the manner contemplated by section 195 Cr PC, 1973 and",
"consequently, no jurisdiction to refer the case under section 156(3) Cr PC, 1973 to the",
Police for investigation or to issue a direction to proceed under the aforesaid sections,
to the Police on a private person's complaint.82.,
[s 182.4] Mala fide Prosecution.—,
The Supreme Court has laid down that proceedings can be taken under this section as,
well as under sections 211 and 500 against persons who initiate prosecution against a,
person in high position with a view to wreaking vengeance for a private and personal,
grudge.83.,
[s 182.5] CASES.—Causing public servant to do what he ought not to do.—,
Mere non-mentioning of the complaint already filed in the Court of Chief Judicial,
"Magistrate, in the petition filed under section 156(3) Cr PC, 1973 before the Special",
"Sessions Judge, would not be enough to attract the section.84. The accused falsely",
telegraphed to a District Magistrate that the town had been attacked by a gang of 200,
"robbers, but the Magistrate put no faith in the telegram and took no action; it was held",
that the accused were guilty of an offence under this section.85. A personated B at an,
"examination and passed the examination and obtained a certificate in B's name. B,",
"thereupon, applied to have his name entered in the list of candidates for Government",
"service. He attached to this application the certificate issued in his name, and his name",
was ordered to be entered on the list of candidates. It was held that he was guilty of an,
offence under this section.86. Where the ulterior motive of the accused in making a,
false report of burglary was to suppress certain documents by pleading that they were,
"stolen, it was held that the act of the accused was not punishable under this section.87.",
Where a resolution was passed in a public meeting condemning police inaction in,
regard to an assault case and copies of the said resolution were sent to various,
"authorities including the Superintendent of Police and the officer-in-charge, but the",
officer-in-charge took exception to it and filed a complaint in Court under sections 182,
"and 211, IPC, 1860, it was held that forwarding of the resolution did not amount to",
institution of criminal proceeding and no offence either under section 182 or section,
"211, IPC, 1860, was committed. It was further observed that police should not be so",
sensitive over public criticism.88.,
[s 182.6] Period of Limitation.—,
"Since the offence under section 182 IPC, 1860 is punishable with imprisonment for a",
"period of six months only, the authority should file the complaint under section 182 IPC,",
1860 within one year from the date when that authority found that the allegations made,
in the complaint were false. Since more than four years was elapsed from the date,
"when the authority found the allegations were false, no question of filing any complaint",
"under section 182 IPC, 1860 at this belated stage arises.89.",
"67. Subs. by Act 3 of 1895, section 1, for section 182.",
"68. Daulat Ram, AIR 1962 SC 1206 [LNIND 1962 SC 28] : 1962 (2) Cr LJ 286 .",
"69. Jiji Joseph v Tomy Ignatius, 2013 Cr LJ 828 (Ker).",
"70. Ramji Sajabarao, (1885) 10 Bom 124; Lachman Singh, (1928) 7 Pat 715.",
"71. Lachman Singh, (1928) 7 Pat 715.",
"72. Thakuri, (1940) 16 Luck 55 .",
"73. Budh Sen v State, (1891) 13 All 351 ; Raghu Tiwari, (1893) 15 All 336 .",
"74. Sham Lal Thukral v State of Punjab, 2009 Cr LJ 189 (PH) relying on AIR 1962 SC1206",
[LNIND 1962 SC 28] : (1962 (2) Cr LJ 286) .,
"75. Ganesh Khanderao, (1889) 13 Bom 506.",
"76. Daulat Ram, 1962 (2) Cr LJ 286 : AIR 1962 SC 1206 [LNIND 1962 SC 28] ; TS Venkateswaran,",
"1982 Cr LJ NOC 68 (Ker); See also State of Rajasthan v Chaturbhuj, 1983 Cr LJ NOC 56 (Raj).",
"77. Saloni Arora v State of NCT of Delhi, AIR 2017 SC 391 [LNIND 2017 SC 23] .",
"78. EK Palanisamy v DySP, 2010 Cr LJ 1802 (Mad); Geetika Batra v OP Batra, 2009 Cr LJ 2687",
(Del).,
"79. PD Lakhani v State of Punjab, 2008 AIR SCW 3357.",
"80. Mata Bhikh's case, (1994) 4 SCC 95 [LNIND 1994 SC 311] : (1994 AIR SCW 1935).",
"81. Also see Sham Lal Thukral v State of Punjab, 2009 Cr LJ 189 (PH); Randhir v State of",
"Haryana, 2004 Cr LJ 479 (PH).",
"82. Loid Jude Manakkat v State, 2013 (2) KLT 931 : 2013 (3) KLJ 53 .",
"83. State of Haryana v Bhajan Lal, 1992 Supp (1) SCC 335 : AIR 1992 SC 604 : 1992 Cr LJ 527 .",
"84. Subhash Chandra v State of UP, (2000) 9 SCC 356 [LNIND 1999 SC 1565] : JT 2000 (2) SC 26",
: 2000 AIR(SCW) 4947.,
"85. Budh Sen, supra.",
"86. Ganesh Khanderao, supra.",
"87. Shambhoo Nath, AIR 1959 All 545 [LNIND 1958 ALL 203] .",
"88. Shiv Kumar Prasad Singh, 1984 Cr LJ 1417 (Pat).",
"89. Harbhajan Singh Bajwa v Senior Superintendent of Police, Patiala, 2000 Cr LJ 3297 (PH).",
THE INDIAN PENAL CODE,
CHAPTER X OF CONTEMPTS OF THE LAWFUL AUTHORITY OF PUBLIC,
SERVANTS,
This Chapter contains penal provisions intended to enforce obedience to the lawful,
"authority of public servants. Contempt of the lawful authority of Courts of Justice, of",
"Officers of Revenue, Officers of Police, and other public servants are punishable under",
this head.,
[s 183] Resistance to the taking of property by the lawful authority of a public,
servant.,
Whoever offers any resistance to the taking of any property by the lawful authority of,
"any public servant, knowing or having reason to believe that he is such public servant,",
shall be punished with imprisonment of either description for a term which may,
"extend to six months, or with fine which may extend to one thousand rupees, or with",
both.,
COMMENT—,
This section makes it penal to offer resistance to the taking of property by the lawful,
authority of any public servant. The Bombay High Court has held that there are no,
"words in the section as there are in section 99, extending the operation of the section",
to acts which are not strictly justifiable by law. Resistance to an act of a public officer,
acting bona fide though in excess of his authority may give rise to some charge in the,
"nature of assault, but it cannot afford any foundation for a prosecution under this",
section.90. The Madras High Court is of opinion that this section should be read in,
"conjunction with section 99. Taking the two together, if an officer acts in good faith",
"under colour of his office the mere circumstance that his ""act may not be strictly",
"justifiable by law"" cannot affect the lawfulness of his authority. In this case, property",
"had been seized in execution by the officer of the Court, and it was held that as the",
"officer was acting bona fide, though he had wrongly seized the property of the accused,",
the accused could be convicted under this section for resisting the execution.91. This,
view of the law receives substantial support from the decision of the Supreme Court in,
Keshoram's case92. where too it has been held that merely because no prior notice was,
served on the accused before seizing his cattle under the Delhi Municipal Act for,
"recovering arrears of milk tax, it could not be said that the municipal officer's action",
was entirely illegal and as such the accused had the right of private defence against,
the bona fide act of the public servant. In the instant case the accused was held to have,
"been rightly convicted under sections 353/332/333, IPC, 1860, for assaulting the public",
servant. On a parity of reasoning it can be said that had the accused been prosecuted,
"under section 183 of the Code, he could have also been convicted under that section as",
well.,
[s 183.1] Lawful authority wanted.—,
"Where a person resisted an official in attaching property under a warrant, the term of",
"which had already expired,93. or which did not specify the date on or before which it",
"was to be executed,94. it was held that he was not guilty under this section. If the",
"warrant is executed by a Court official when it is addressed to a peon, resistance to the",
Court official is not illegal.95.,
If a bailiff breaks open the doors of a third person in order to execute a decree against,
"a judgment-debtor, he is a trespasser if it turns out that the person or goods of the",
debtor are not in the house; and under such circumstances the owner of the house,
"does not by obstructing the bailiff, render himself punishable under section 183 or",
section 186.96.,
"90. Sakharam Pawar, (1935) 37 Bom LR 362 .",
"91. Tiruchitrambala Pathan, (1896) 21 Mad 78.",
"92. Keshoram, 1974 Cr LJ 814 : AIR 1974 SC 1158 [LNIND 1974 SC 130] .",
"93. Anand Lal Bera v State, (1883) 10 Cal 18 .",
"94. Mohini Mohan Banerji, (1916) 1 PLJ 550 , 18 Cr LJ 39.",
95. Ibid.,
"96. Gazi Aba Dore, (1870) 7 BHC (Cr C) 83.",
THE INDIAN PENAL CODE,
CHAPTER X OF CONTEMPTS OF THE LAWFUL AUTHORITY OF PUBLIC,
SERVANTS,
This Chapter contains penal provisions intended to enforce obedience to the lawful,
"authority of public servants. Contempt of the lawful authority of Courts of Justice, of",
"Officers of Revenue, Officers of Police, and other public servants are punishable under",
this head.,
[s 184] Obstructing sale of property offered for sale by authority of public,
servant.,
Whoever intentionally obstructs any sale of property offered for sale by the lawful,
"authority of any public servant, as such, shall be punished with imprisonment of either",
"description for a term which may extend to one month, or with fine which may extend",
"to five hundred rupees, or with both.",
COMMENT—,
This section punishes intentional obstruction of the sale of any property conducted,
under the lawful authority of a public servant. No physical obstruction is necessary.,
Use of abusive language by a person at an auction-sale conducted by a public servant,
makes him liable to be convicted of an offence under this section.97.,
"97. Provincial Govt. CP & Berar v Balaram, (1939) Nag 139.",
THE INDIAN PENAL CODE,
CHAPTER X OF CONTEMPTS OF THE LAWFUL AUTHORITY OF PUBLIC,
SERVANTS,
This Chapter contains penal provisions intended to enforce obedience to the lawful,
"authority of public servants. Contempt of the lawful authority of Courts of Justice, of",
"Officers of Revenue, Officers of Police, and other public servants are punishable under",
this head.,
[s 185] Illegal purchase or bid for property offered for sale by authority of,
public servant.,
"Whoever, at any sale of property1 held by the lawful authority of a public servant, as",
"such, purchases or bids for any property on account of any person, whether himself or",
"any other, whom he knows to be under a legal incapacity to purchase that property at",
"that sale, or bids for such property not intending to perform the obligations under",
"which he lays himself by such bidding, shall be punished with imprisonment of either",
"description for a term which may extend to one month, or with fine which may extend",
"to two hundred rupees, or with both.",
COMMENT—,
This section makes it penal to bid at a public sale of property on account of a party,
"who is under a legal incapacity to purchase it, or to bid for it not intending to complete",
the purchase or as it is expressed to perform the obligations under which the bidder,
"lays himself by such ""bidding"".98.",
1. 'Property'.—This word is used in its wide sense. The right to sell drugs is a monopoly,
granted for a certain area and comes within the definition of property. A person who,
bids at an auction of the right to sell drugs within a certain area under a false name,
"and, when the sale is confirmed in his favour, denies that he has ever made any bid at",
"all, is guilty of an offence under this section.99.",
"98. 2nd Rep., section 110.",
"99. Bishan Prasad, (1914) 37 All 128 .",
THE INDIAN PENAL CODE,
CHAPTER X OF CONTEMPTS OF THE LAWFUL AUTHORITY OF PUBLIC,
SERVANTS,
This Chapter contains penal provisions intended to enforce obedience to the lawful,
"authority of public servants. Contempt of the lawful authority of Courts of Justice, of",
"Officers of Revenue, Officers of Police, and other public servants are punishable under",
this head.,
[s 186] Obstructing public servant in discharge of public functions.,
Whoever voluntarily obstructs any public servant in the discharge of his public,
"functions, shall be punished with imprisonment of either description for a term which",
"may extend to three months, or with fine which may extend to five hundred rupees, or",
with both.,
State Amendment,
Andhra Pradesh.— Offence under section 186 is cognizable.,
"[Vide A.P.G.O. Ms. No. 732, dated 5th December, 1991].",
COMMENT—,
This section provides for voluntarily obstructing a public servant in the discharge of his,
duties. It must be shown that the obstruction or resistance was offered to a public,
servant in the discharge of his duties or public functions as authorised by law. The,
mere fact of a public servant believing that he was acting in the discharge of his duties,
will not be sufficient to make resistance or obstruction to him amount to an,
offence.100. If the public servant is acting in good faith under colour of his office there,
is no right of private defence against his act.101.,
"The word ""obstruction"" connotes some overt act in the nature of violence or show of",
"violence.102. To constitute ""obstruction"", it is not necessary that there should be actual",
criminal force. It is sufficient if there is either a show of force or a threat or any act,
preventing the execution of any act by a public servant.103. Though an offence under,
"this section is a non-cognizable one, by virtue of powers vested in the State",
"Government under section 10 of the Criminal Law Amendment Act, 1932, it can be",
"made a cognizable offence in a specified area by means of a notification, while such",
notification remains in force.,
[s 186.1] Initiation of Prosecution.—,
To initiate prosecution under this section it is necessary to see that the complaint is,
"filed under section 195(1)(a), Cr PC, 1973, by the concerned public servant or his",
superior officer to whom he is administratively subordinate (See also discussion under,
"sub-head ""Condition precedent for Prosecution under section 182 ante.) It is also not",
"possible to bypass the requirements of section 195(1)(a), Cr PC, 1973, by merely",
"changing the label of the offence, say from section 186 to section 353, IPC, 1860.104.",
"[s 186.2] Offences with bar under section 195 Cr PC, 1973 with some offences",
without the bar.—,
Where an accused commits some offences which are separate and distinct from those,
"contained in section 195 of the Cr PC, 1973, section 195 will affect only the offences",
mentioned therein unless such offences form an integral part so as to amount to,
"offences committed as a part of the same transaction, in which case the other",
offences also would fall within the ambit of section 195 of the Code.105. It is a well-,
accepted proposition of law that when an accused commits some offences which are,
separate and distinct from those contained in section 195; section 195 will affect only,
the offences mentioned therein unless such other offences form an integral part of the,
same so as to amount to offences committed as a part of the same transaction. That,
in such case the other offences would also fall within the ambit of section195 of the,
"Code. In other words, the offences charged against the petitioners under section143,",
"147, 148, 149, 332, 333 and 307 of IPC, 1860, cannot be split from the complaint for a",
"separate offence in the facts and circumstances of the present case, and thereby",
cognizance in respect to said offences are also barred under section 195(1)(a)(i) of the,
Code.106.,
[s 186.3] CASES.—Obstruction.—,
A Circle Inspector went into the compound of the accused with a village servant to,
remove a portion of the hedge which was an encroachment. When the servant put his,
"scythe to the hedge to cut it, the accused caught hold of the scythe and threatened",
"him. It was held that the accused was guilty of an offence under this section, since his",
"laying hold of the scythe amounted to physical obstruction, and the obstruction offered",
to the servant was tantamount to obstruction to the Circle Inspector under whose,
orders he was acting.107. The daughter of the tenant of the accused died of,
electrocution. The police-officers entered the premises with permission to check fresh,
wiring and leakage of current. They were prevented from taking photographs by the,
accused and also not allowed to leave the house. The Court said that this amounted to,
obstruction within the meaning of section 186 and wrongful confinement within the,
meaning of section 342.108. Section 186 contemplates obstruction of a public servant,
in the discharge of his public duty and section 332 contemplates voluntarily causing,
hurt to him to deter him from performing his public duty. The gravity of the offences is,
different. Offence under section 332 is cognizable. The requirement of making a,
"complaint in writing as postulated by section 195, Cr PC, 1973, cannot be extended to",
the case of an offence under section 332.109.,
[s 186.4] Section 186 and Section 353: Distinction between.—,
"Sections 186 and 353, IPC, 1860 relate to two distinct offences and while the offence",
under the latter section is a cognizable offence the one under the former section is not,
"so. The ingredients of the two offences are also distinct. Section 186, IPC, 1860 is",
applicable to a case where the accused voluntarily obstructs a public servant in the,
"discharge of his public functions but under section 353, IPC, 1860 the ingredient of",
assault or use of criminal force while the public servant is doing his duty as such is,
necessary. The quality of the two offences is also different. Section 186 occurs in,
"Chapter X of the IPC, 1860 dealing with Contempts of the lawful authority of public",
"servants, while section 353 occurs in Chapter XVI regarding the Offences affecting the",
"human body. It is well established that section 195 of the Cr PC, 1973 does not bar the",
trial of an accused person for a distinct offence disclosed by the same set of facts but,
which is not within the ambit of that section.110. If in truth and substance the offence in,
question falls in the category of sections mentioned in section 195 of the Code and it,
was not open to bypass its provisions even by choosing to prosecute under section,
"353, IPC, 1860 only.111.",
"100. Lilla Singh, (1894) 22 Cal 286 ; Tulsiram v State, (1888) 13 Bom 168.",
"101. Poomalai Udayan, (1898) 21 Mad 296; Pukot Kotu, (1896) 19 Mad 349.",
"102. Phudki, AIR 1955 All 104 [LNIND 1954 ALL 119] .",
"103. Babulal, (1956) 58 Bom LR 1021 .",
"104. Oduvil Devaki Amma, 1982 Cr LJ NOC 11 (Ker).",
"105. State of UP v Suresh Chandra Srivastava, AIR 1984 SC 1108 [LNIND 1984 SC 575] : 1984 Cr",
LJ 926 .,
"106. Ramji Bhikha Koli v State of Gujarat, 1999 Cr LJ 1244 (Guj).",
"107. Bhaga Mana, (1927) 30 Bom LR 364 . See also Gyan Bahadur v State of MP, 2013 Cr LJ",
1729 (MP).,
"108. Veena Ranganekar v State, 2000 Cr LJ 2543 (Del).",
"109. State of HP v Vidya Sagar, 1997 Cr LJ 3893 (HP).",
"110. Durgacharan Naik v State of Orissa, AIR 1966 SC 1775 [LNIND 1966 SC 59] : 1966 Cr LJ",
1491 (SC).,
"111. Ashok v The State, 1987 Cr LJ 1750 (MP); Mrityunjoy Das v State, 1987 Cr LJ 909 (Cal).",
THE INDIAN PENAL CODE,
CHAPTER X OF CONTEMPTS OF THE LAWFUL AUTHORITY OF PUBLIC,
SERVANTS,
This Chapter contains penal provisions intended to enforce obedience to the lawful,
"authority of public servants. Contempt of the lawful authority of Courts of Justice, of",
"Officers of Revenue, Officers of Police, and other public servants are punishable under",
this head.,
[s 187] Omission to assist public servant when bound by law to give,
assistance.,
"Whoever, being bound by law to render or furnish assistance to any public servant in",
"the execution of his public duty, intentionally omits to give such assistance, shall be",
"punished with simple imprisonment for a term which may extend to one month, or",
"with fine which may extend to two hundred rupees, or with both;",
and if such assistance be demanded of him by a public servant legally competent to,
make such demand for the purposes of executing any process lawfully issued by a,
"Court of Justice, or of preventing the commission of an offence, or of suppressing a",
"riot, or affray, or of apprehending a person charged with or guilty of an offence, or of",
"having escaped from lawful custody, shall be punished with simple imprisonment for",
"a term which may extend to six months, or with fine which may extend to five hundred",
"rupees, or with both.",
COMMENT—,
"This section provides, first in general terms for the punishment when a person, being",
bound by law to render assistance to a public servant in the execution of his public,
"duty, intentionally omits to assist; and second, for the punishment when the assistance",
is demanded for certain specified purposes.112.,
"This section speaks of assistance to be rendered to public servants, just as sections",
176 and 177 speak of furnishing true information. A case was registered against the,
"accused/ Sub-Inspector of Police under section 187 of the IPC, 1860 for not assisting",
"the Assisting Sessions Judge, in the service of summons to witnesses and",
administration of justice. In the light of the language employed in sections 195(1) of Cr,
"PC, 1973, the prosecution initiated at the instance of the Assistant Sessions Judge",
cannot be sustained for the reason that the Sub-Inspector of Police is not subordinate,
to the said Officer. Unless a complaint is made by the competent officer as specified,
"under section 195(1) of the Code, the prosecution cannot be further proceeded with.",
"Apart from this aspect of the matter, in as much as the service of summons, being in",
"discharge of the official duties of the Sub-Inspector, sanction under section 197 of the",
code is also required.113.,
"112. Ramaya Naika, (1903) 26 Mad 419, (FB).",
"113. Paleti Anil Babu v State, 2006 Cr LJ 3084 (AP).",
THE INDIAN PENAL CODE,
CHAPTER X OF CONTEMPTS OF THE LAWFUL AUTHORITY OF PUBLIC,
SERVANTS,
This Chapter contains penal provisions intended to enforce obedience to the lawful,
"authority of public servants. Contempt of the lawful authority of Courts of Justice, of",
"Officers of Revenue, Officers of Police, and other public servants are punishable under",
this head.,
[s 188] Disobedience to order duly promulgated by public servant.,
"Whoever, knowing that, by an order promulgated by a public servant lawfully",
"empowered to promulgate such order, he is directed to abstain from a certain act, or",
to take certain order with certain property in his possession or under his,
"management, disobeys such direction,",
"shall, if such disobedience causes or tends to cause obstruction, annoyance or injury,",
"or risk of obstruction, annoyance or injury, to any person lawfully employed, be",
punished with simple imprisonment for a term which may extend to one month or with,
"fine which may extend to two hundred rupees, or with both;",
"and if such disobedience causes or tends to cause danger to human life, health or",
"safety, or causes or tends to cause a riot or affray, shall be punished with",
"imprisonment of either description for a term which may extend to six months, or with",
"fine which may extend to one thousand rupees, or with both.",
"Explanation.—It is not necessary that the offender should intend to produce harm, or",
contemplate his disobedience as likely to produce harm. It is sufficient that he knows,
"of the order which he disobeys, and that his disobedience produces, or is likely to",
"produce, harm.",
ILLUSTRATION,
An order is promulgated by a public servant lawfully empowered to promulgate such,
"order, directing that a religious procession shall not pass down a certain street. A",
"knowingly disobeys the order, and thereby causes danger of riot. A has committed the",
offence defined in this section.,
COMMENT—,
Ingredients.—To constitute this offence it is necessary to show—,
(1) a lawful order promulgated by a public servant empowered to promulgate it;,
(2) knowledge of the order which may be general or special;,
(3) disobedience of such order; and,
(4) the result that is likely to follow from such disobedience.,
The offence under this section has now been made a cognizable offence under the Cr,
"PC, 1973. Though a bailable offence, it can be made non-bailable by a notification by",
"the State Government under section 10(2) of the Criminal Law Amendment Act, 1932.",
There must be evidence that the accused had knowledge of the order with the,
disobedience of which he is charged. Mere proof of a general notification promulgating,
"the order does not satisfy the requirements of the section.114. ""Promulgation"" does not",
require publication in newspapers or by posters.115. Mere disobedience of an order,
does not constitute an offence in itself; it must be shown that the disobedience has or,
"tends to a certain consequence,116. namely, annoyance, obstruction, etc. The",
annoyance has to be proved as a fact; mere mental annoyance of the authorities,
concerned is not enough.117. It is also necessary to see that the order was not only,
"lawfully made but duly promulgated and the accused had knowledge of the order, else",
his conviction cannot be sustained.118. Where a standing crop was attached by means,
"of an order under section 145 Cr PC, 1973 and the accused, who had come to know the",
"order, reaped and removed the crop, an offence under this section was held to have",
been committed. It was a disobedience packed with a tendency to cause riot or,
affray.119. The complaint of this offence must disclose that the disobedience of the,
"order led to the consequences narrated in clauses (2) and (3) of section 188, IPC, 1860,",
"otherwise no cognizance can be taken on such a complaint.120. It is not necessary that,",
"if the order disobeyed was that of a civil Court, a complaint should be received from",
that Court. A criminal Court can entertain a complaint of disobedience from any other,
source.121.,
"It is open to a person charged under this section to plead in defence that the order,",
"though made with jurisdiction, was utterly wrong or improper on merits.122.",
[s 188.1] Necessary particulars in the complaint.—,
"In order to attract the provisions of section 186 IPC, 1860, it has to be seen whether the",
public servant in the discharge of his public functions has been voluntarily obstructed,
or not. It is reiterated that what was mentioned in the complaint was that the,
government administration was disrupted for half an hour. Mere disruption of,
government administration without there being a specific mention that the public,
servants were obstructed from voluntarily discharging their public functions would not,
"attract section 186 IPC, 1860.123.",
Knowledge of orders.—The offence of disobedience of the orders of a public servant is,
not committed where there is nothing to show that the accused person had knowledge,
of the order.124.,
[s 188.2] Curfew Order and Shoot to kill.—,
"Violation of a curfew order under section 144, Cr PC, 1973, is a minor offence",
"punishable under section 188, IPC, 1860, and as such the executive instruction to",
"""Shoot to Kill"" for violation of a prohibitory order under section 144 Cr PC, 1973, is ultra",
"vires section 144 Cr PC, 1973, section 188 IPC, 1860, Articles 20(1) and 21 of the",
"Constitution and is, therefore, void and unlawful.125.",
"[s 188.3] Prohibitory order under Food and Safety Standards Act, 2006.—",
Disobedience to a prohibitory order issued by the Food and Safety Commissioner from,
possessing or transporting Gutka or Pan Masala would not cause breach of law and,
order. The Commissioner's order is not an order contemplated under Chapter 10 of the,
"IPC, 1860. Besides, the prohibitory order issued under section 30 of the FSS Act, 2006",
"and its violation, would amount to offence only under section 55 of the FSS Act, 2006.",
"This specific provision is made in the special enactment, which is a law in itself. It",
"would not permit any one to apply section 188 of the IPC, 1860 for such breach or",
violation.126.,
[s 188.4] Complaint.—,
A written complaint by a public servant concerned is sine qua non to initiate a criminal,
"proceeding under section 188 of the IPC, 1860 against those who, with the knowledge",
that an order has been promulgated by a public servant directing either 'to abstain from,
"a certain act, or to take certain order, with certain property in his possession or under",
his management' disobey that order.127.,
"114. Ramdas Singh, (1926) 54 Cal 152 .",
"115. Srimati Tugla, (1955) 2 All 547 .",
"116. Lachhmi Devi, (1930) 58 Cal 971 .",
"117. Pradip, AIR 1960 Assam 20 ; DN Ramaiah, 1972 Cr LJ 1158 (Mysore); Saroj Hazra, 48 Cr LJ",
"747 (Cal); Bharat Raut, 1953 Cr LJ 1787 24.(Pat); Dalganjan, 1956 Cr LJ 1176 (All); Fakir Charan",
"Das, 1957 Cr LJ 1151 (Ori); Pradip Choudhury, 1960 Cr LJ 251 (Assam); Ram Manohar Lohia;",
1968 Cr LJ 281 (All).,
"118. K Papayya v State, 1975 Cr LJ 1784 (AP).",
"119. Bhagirathi Shrichandan v Damodar, 1987 Cr LJ 631 (Ori).",
"120. Padan Pradhan, 1982 Cr LJ 534 (Pat).",
"121. Thavasiyappan v Periasamy Nadar, 1992 Cr LJ 283 .",
"122. Bachuram v State, AIR 1956 Cal 102 [LNIND 1955 CAL 186] .",
"123. Anurag Thakur v State of HP, 2016 Cr LJ 3363 : I L R 2016 (III) HP 1314.",
"124. Bhoop Singh Tyagi v State, 2002 Cr LJ 2872 (Del).",
"125. Jayantilal v State, 1975 Cr LJ 661 (Guj); see also R Deb : Op Cit, pp 840-841.",
"126. Ganesh Pandurang Jadhao v The State of Maharashtra, 2016 Cr LJ 2401 : III (2016) CCR",
334 (Bom).,
"127. State of UP v Mata Bhikh, (1994) 4 SCC 95 [LNIND 1994 SC 311] : JT 1994 (2) SC 565",
[LNIND 1994 SC 311] : (1994) 2 Scale 235 : (1994) 1 SCC (Cr) 831 : 1994 (2) SCR 368 [LNIND,
"1994 SC 311] . See also C Muniappan v State of TN, (2010) 9 SCC 567 [LNIND 2010 SC 809] : AIR",
2010 SC 3718 [LNIND 2010 SC 809] : (2010) 3 SCC (Cr) 1402 : 2010 (8) Scale 637 : JT 2010 (9),
SC 95 [LNIND 2010 SC 809] .,
THE INDIAN PENAL CODE,
CHAPTER X OF CONTEMPTS OF THE LAWFUL AUTHORITY OF PUBLIC,
SERVANTS,
This Chapter contains penal provisions intended to enforce obedience to the lawful,
"authority of public servants. Contempt of the lawful authority of Courts of Justice, of",
"Officers of Revenue, Officers of Police, and other public servants are punishable under",
this head.,
[s 189] Threat of injury to public servant.,
"Whoever holds out any threat of injury to any public servant, or to any person in whom",
"he believes that public servant to be interested, for the purpose of inducing that",
"public servant to do any act, or to forbear or delay to do any act, connected with the",
"exercise of the public functions of such public servant, shall be punished with",
"imprisonment of either description for a term which may extend to two years, or with",
"fine, or with both.",
State Amendment,
Andhra Pradesh.— In Andhra Pradesh offence under section 189 is cognizable.,
"[Vide A.P.G.O. Ms. No. 732, dated 5th December, 1991].",
COMMENT—,
Under this section there must be a threat of injury either to the public servant or to any,
one in whom the accused believes the public servant to be interested. What the section,
deals with are menaces which would have a tendency to induce the public servant to,
alter his action. See section 503 which defines criminal intimidation and applies in all,
cases. This section deals with criminal intimidation of a public servant. Threats of,
violence to a public servant who accepted bribe money but did not do the promised,
"work are not covered by this section. A public servant deserves protection, since in the",
"performance of his duties, he is likely to cause disappointment to many and invite their",
"wrath. That is why under sections 189 and 353 and various other sections of the IPC,",
"1860, a public servant is strongly protected and punishment for offences against him is",
made deterrent. However if a public servant has gone astray and indulged in,
"malpractices, more especially by way of taking bribe, he would necessarily become",
subject to public criticism and private accountability. What appears then at the,
"forefront is not the performance of duty by the public servant, but the non-performance",
of some contract dehors the normal functions of the public servant. If that illegal,
"contract gives rise to any act of violence at any stage, such acts cannot constitute by",
any stretch of imagination acts contemplated and punished under sections 353 and,
"189, IPC, 1860.128.",
Where workers of Communist Party (Marxist) went to a police station to protest,
against the arrest of their party workers and in the process asked the police-officer to,
"release them on threat of dire consequences, it was held that the accused had",
committed an offence under this section.129. By a notification under section 10 of the,
"Criminal Law Amendment Act, 1932, the State Government can make this section a",
cognizable offence for a specified area.,
"128. Duraikhannu v State of TN, 1987 Cr LJ 1461 (Mad); Mrityunjoy Das v State, 1987 Cr LJ 909",
(Cal).,
"129. De Cruz, (1884) 8 Mad 140.",
THE INDIAN PENAL CODE,
CHAPTER X OF CONTEMPTS OF THE LAWFUL AUTHORITY OF PUBLIC,
SERVANTS,
This Chapter contains penal provisions intended to enforce obedience to the lawful,
"authority of public servants. Contempt of the lawful authority of Courts of Justice, of",
"Officers of Revenue, Officers of Police, and other public servants are punishable under",
this head.,
[s 190] Threat of injury to induce person to refrain from applying for protection,
to public servant.,
Whoever holds out any threat of injury to any person for the purpose of inducing that,
person to refrain or desist from making a legal application for protection against any,
"injury to any public servant legally empowered as such to give such protection, or to",
"cause such protection to be given, shall be punished with imprisonment of either",
"description for a term which may extend to one year, or with fine, or with both.",
State Amendment,
Andhra Pradesh.—Offence under section 190 is cognizable.,
"[Vide A.P.G.O. Ms. No. 732, dated 5th December, 1991].",
COMMENT—,
The object of this section is to prevent persons from terrorising others with a view to,
deter them from seeking the protection of public servants against any injury. Where a,
"clergyman, knowing that a civil suit was pending against a person for the possession of",
"certain church property, excommunicated him for withholding it, it was held that the",
clergyman had committed no offence under this section. By a notification under,
"section 10(1) of the Criminal Law Amendment Act, 1932 the State Government can",
make this offence a cognizable one for a specified area while such notification remains,
in force.,
THE INDIAN PENAL CODE,
CHAPTER XI OF FALSE EVIDENCE AND OFFENCES AGAINST PUBLIC,
JUSTICE,
"Under the Indian Penal Code, 1860 offences relating to false evidence and offences",
against public justice are contained in Chapter XI. In relation to proceeding in any,
"Court, the offences enumerated are: giving false evidence or fabricating false evidence",
(sections 191–193); giving or fabricating false evidence with intent to procure,
conviction (sections 194 and 195); threatening any person to give false evidence,
(section 195A); using evidence known to be false (section 196); using as true a,
certificate known to be false (section 198); making a false statement in a declaration,
which is by law receivable as evidence (section 199); using as true any declaration,
"receivable as evidence, knowing it to be false (section 200); causing disappearance of",
"evidence of offence, or giving false information to screen offender (section 201);",
intentional omission to give information of offence by person bound to inform (section,
202); giving false information in respect of an offence (section 203); destruction of,
document or electronic record to prevent its production as evidence (section 204);,
false personation (section 205); fraudulent removal/concealment of property (section,
206); fraudulent claim to property (section 207); fraudulently suffering or obtaining,
decree for sum not due (section 208 and section 210); dishonestly making a false,
claim in Court (section 209); and intentional insult or interruption to public servant,
sitting in judicial proceedings (section 228). Section 195 of Code of Criminal Procedure,
provides that no Court shall take cognizance of any offence punishable under section,
172–188 (dealing with the contempt of the lawful authority of public servants) or,
"section 193–196, 199, 200, 205–211 and 228, when such offence is alleged to have",
"been committed in, or in relation to, any proceeding in any Court, except on the",
complaint in writing of that Court by such officer of the Court as that Court may,
"authorise in writing in this behalf, or of some other Court to which that Court is",
subordinate.1.,
[s 191] Giving false evidence.,
"Whoever, being legally bound by an oath or by an express provision of law to state the",
"truth, or being bound by law to make a declaration upon any subject,1 makes any",
"statement which is false,2. and which he either knows or believes to be false or does",
"not believe to be true,3. is said to give false evidence.",
"Explanation 1.—A statement is within the meaning of this section, whether it is made",
verbally or otherwise.,
Explanation 2.—A false statement as to the belief of the person attesting is within the,
"meaning of this section, and a person may be guilty of giving false evidence by",
"stating that he believes a thing which he does not believe, as well as by stating that he",
knows a thing which he does not know.,
ILLUSTRATIONS,
"(a) A, in support of a just claim which B has against Z for one thousand rupees,",
falsely swears on a trial that he heard Z admit the justice of B's claim. A has,
given false evidence.,
"(b) A, being bound by an oath to state the truth, states that he believes a certain",
"signature to be the handwriting of Z, when he does not believe it to be the",
"handwriting of Z. Here A states that which he knows to be false, and therefore",
gives false evidence.,
"(c) A, knowing the general character of Z's handwriting, states that he believes a",
certain signature to be the handwriting of Z; A in good faith believing it to be so.,
"Here A's statement is merely as to his belief, and is true as to his belief, and",
"therefore, although the signature may not be the handwriting of Z, A has not",
given false evidence.,
"(d) A, being bound by an oath to state the truth, states that he knows that Z was at",
"a particular place on a particular day, not knowing anything upon the subject. A",
gives false evidence whether Z was at that place on the day named or not.,
"(e) A, an interpreter or translator, gives or certifies as a true interpretation or",
translation of a statement or document which he is bound by oath to interpret or,
"translate truly, that which is not and which he does not believe to be a true",
interpretation or translation. A has given false evidence.,
COMMENT.—,
Ingredients.—The offence under this section involves three ingredients:—,
(1) A person must be legally bound;,
"(a) by an oath, or any express provision of law, to state the truth; or",
(b) to make a declaration upon any subject.,
(2) He must make a false statement.,
(3) He must;,
"(a) know or believe it to be false, or",
(b) not believe it to be true.,
"1. 'Legally bound by an oath or by an express provision of law, etc.'— In case the",
"recourse to a false plea is taken with an oblique motive, it would definitely hinder,",
hamper or impede the flow of justice and prevent the Courts from performing their,
legal duties.2 The Courts have to follow the procedures strictly and cannot allow a,
witness to escape the legal action for giving false evidence before the Court on mere,
explanation that he had given it under the pressure of the police or for some other,
"reason. Whenever the witness speaks falsehood in the Court, and it is proved",
"satisfactorily, the Court should take a serious action against such witnesses.3 It is",
necessary that the accused should be legally bound by an oath before a competent,
authority. If the Court has no authority to administer an oath the proceeding will be,
"coram non judice and a prosecution for false evidence will not stand.4. Similarly, if the",
Court is acting beyond its jurisdiction it will not be sustained.5. For the essentiality of,
"section 191, petitioner must have been legally bound to speak truth or make a",
declaration and he must have stated or declared what is false. He must also know or,
believe what he has stated or declared is false or he has believed it true. If there is no,
"compulsion to make any declaration as required by law, Section 191 will not have any",
application. The information given by him is not on any oath nor was he bound to give,
such information under any provision of Law.6.,
[s 191.1] 'By an oath'.—,
An oath or a solemn affirmation is not a sine qua non in the offence of giving false,
evidence.7. The offence may be committed although the person giving evidence has,
been either sworn or affirmed.8. Whenever in a Court of law a person binds himself on,
"oath to state the truth, he is bound to state the truth and he cannot be heard to say that",
he should not have gone into the witness box or should not have made an affidavit. It is,
no defence to say that he was not bound to enter the witness box.9.,
[s 191.2] 'By an express provision of law'.—,
Under this clause sanction of an oath is not necessary; there must be a specific,
provision of law compelling a person to state the truth. Where the accused is not bound,
by an express provision of law to state the truth he cannot be charged with giving false,
evidence.10.,
[s 191.3] 'Declaration upon any subject'.—,
In certain cases the law requires a declaration from a person of verification in a,
pleading—and if such a declaration is made falsely it will come under this clause. The,
words 'any subject' denote that the declaration must be in connection with a subject,
regarding which it was to be made.,
2. 'Any statement which is false'.—It is not necessary that the false evidence should be,
"material to the case in which it is given.11. If the statement made is designedly false,",
the accused is liable whether the statement had a material bearing or not upon the,
matter under enquiry before the Court.12.,
3. 'Knows or believes to be false or does not believe to be true'.—The matter sworn to,
"must be either false in fact, or, if true, the accused must not have known it to be so. The",
"making of a false statement, without knowledge as to whether the subject-matter of",
"the statement is false or not, is legally the giving of false evidence.13. Where a man",
"swears to a particular fact, without knowing at the time whether the fact be true or",
"false, it is as much perjury as if he knew the fact to be false, and equally indictable.14.",
"However, a man cannot be convicted of perjury for having acted rashly, or for having",
failed to make reasonable inquiry with regard to the facts alleged by him to be true.15.,
[s 191.4] Two Contradictory Statements.—,
"Merely because a person makes two contradictory statements, one of which must be",
"false, it does not make out a case of perjury unless the falsity of one of the two",
statements as charged in the indictment is positively proved to be so.16. In India a,
prosecution for perjury seems to be possible in such a case by virtue of illustration (e),
"of section 221, The Code of Criminal Procedure, 1973, it has been held to be",
"inexpedient to do so in the interest of justice. Thus, where a person made one",
"statement under section 164 Cr PC, 1973 and a diametrically opposite statement in",
"Court during the enquiry or trial, he could in view of this illustration be charged in the",
"alternative and convicted of intentionally giving false evidence, although it cannot be",
proved which of these contradictory statements was false. But to do so may be to tie,
"him down to his previous false statement under section 164 Cr PC, 1973, and",
preventing him from telling the truth even belatedly at the later stage of enquiry or trial.,
The Supreme Court too has felt that a witness whose statement has been recorded,
"under section 164 Cr PC, 1973, feels tied to his previous statement and as such his",
evidence has to be approached with caution.17. In the instant case as it could not be,
"shown that the earlier statements of the witnesses recorded under section 164 Cr PC,",
1973 were true and those given before the Magistrate in course of the enquiry were,
"false, the complaints of perjury filed against the witnesses were directed to be",
withdrawn.18.,
[s 191.5] As to expert opinion.—,
"A scientific expert was asked to give his opinion regarding two cartridges, whether",
"those were fired from one firearm or from two different ones, without sending the",
"suspected firearm to him. He gave opinion, inter alia, that no definite opinion could be",
offered in order to link the firearm unless the firearm was made available to him. During,
"the examination, the Court insisted him to give a definite opinion that too without",
"examining the firearm. At that time, he opined that the cartridges appeared to have",
been fired from two separate firearms. Considering that there was a deliberate,
deviation in his opinion the High Court initiated proceedings against him under section,
"340 Cr PC, 1973 for perjury. The Supreme Court held that it is unjust, if not unfair, to",
attribute any motive to the appellant that there was a somersault from his original,
stand in the written opinion.19.,
[s 191.6] Written statements and applications.—,
"A person filing a written statement in a suit is bound by law to state the truth, and if he",
"makes a statement which is false to his knowledge or belief, or which he believes not",
"be to true, he is guilty of this offence.20. Signing and verifying an application for",
"execution containing false statements is an offence under this section, and it makes no",
difference that at the time when the signature and verification were appended the,
"application was blank.21. But the verification of an application, in which the applicant",
"makes a false statement, does not subject him to punishment for this offence, if such",
application does not require verification.22.,
[s 191.7] Incriminating statement no justification.—,
"When a party makes a false statement while legally bound by solemn affirmation, the",
fact that the statement was one tending to incriminate himself will not justify his,
acquittal on a charge of giving false evidence.23.,
[s 191.8] Illegality of trial does not purge perjury.—,
The fact that the trial in which false evidence is given is to be commenced de novo,
owing to irregularity does not exonerate the person giving false evidence in that trial,
"from the obligation to speak the truth, and he is liable for giving false evidence.24.",
[s 191.9] Prosecution for perjury.—,
It has been held by the Supreme Court that the courts should sanction the prosecution,
for perjury only in those cases where perjury appears to be deliberate and where it,
would be expedient in the interest of justice to punish the delinquent and not merely,
because there is some inaccuracy in the statement.25.,
[s 191.10] Accused not liable for giving false evidence.—,
The authors of the Code observe:,
We have no punishment for false evidence given by a person when on his trial for an,
"offence, though we conceive that such a person ought to be interrogated... If A stabs Z,",
"and afterwards on his trial denies that he stabbed Z, we do not propose to punish A as",
a giver of false evidence.26.,
The accused shall not render himself liable to punishment by refusing to answer questions,
put by the Court or by giving false answers to them.27.,
[s 191.11] CASES.—,
"In a case, where the allegation was that the Attorney General and Chief Vigilance",
Officer gave consent to prosecute the Complainant without due care and without,
proper application of mind. The Supreme Court held that it cannot be said that the,
document conveying consent was a 'false document' or that giving of 'consent',
amounted to giving of 'false evidence' or 'fabricating false evidence' at any stage of,
judicial proceeding.28. A person could only be held guilty of an offence under section,
191 if false evidence is knowingly given or when the statement is believed to be not,
true.29. A witness falsely deposing in another's name;30. and a person falsely verifying,
"his plaint;31. and an official making a false return of the service of summons,32. were",
held guilty of giving false evidence. The Supreme Court has held that where a false,
affidavit is sworn by a witness in a proceeding before a Court the offence would fall,
under this section and section 192. It is the offence of giving false evidence or of,
fabricating false evidence for the purpose of being used in a judicial proceeding.33.,
Where a notice of perjury was issued to certain eye-witnesses but it could not be,
"shown with certainty that they were liars, it was held that the issue of notices was not",
proper. The Court used its inherent powers and quashed the notices. The challenge,
was presented by only one of the witnesses on his own behalf as well as that of,
others.34.,
[s 191.12] Affidavit.—,
"An affidavit is evidence within the meaning of section 191 of the IPC, 1860. It was",
alleged about an affidavit filed in a Court that it contained false statements. The,
affidavit was filed by the party suo motu and not under direction from the Court. Such,
"an affidavit could not be termed as evidence. Hence, no action could be taken against",
"him under the IPC, 1860.35. Process Server while he takes information from the",
neighbours is not expected to get a sworn statement from them. It is neither an,
"affidavit nor a sworn statement. It is only an information, which he has collected to",
show his bona fides that he made attempts to serve the notice on the party. If on the,
request of process server if any such information is given that information cannot be,
treated as false evidence or fabricating evidence nor it could be treated as certificate,
nor a declaration under any of the provisions of this section.36.,
[s 191.13] Abetment.—,
Where an accused asked a witness to suppress certain facts in giving his evidence,
"against him (accused), it was held that he was guilty of abetment of giving false",
evidence in a stage of a judicial proceeding.37. Where C falsely represented himself to,
"be U, and the writer of a document signed by U, and T, knowing that C was not U and",
"had not written such document, adduced C as U, the writer of that document, it was",
held that T was guilty of abetment of giving false evidence.38.,
"[s 191.14] Bar under section 195 Cr PC, 1973.—",
Section 195 of the Code lays down the procedure for prosecution for contempt of,
lawful authority of public servants for offences against public justice and for offences,
"against public documents given in the form of evidence. As per this provision, Court is",
debarred from taking cognizance of any of the offences punishable under sections,
"193–196, 199, 200, 205–211 and section 228, when such offence is alleged to have",
"been committed in, or in relation to, any proceedings in any Court except on the",
complaint in writing of that Court by such officer of the Court as that Court may,
authorise in writing in that behalf or of some other Court to which that Court is,
"subordinate. The term ""Court"" in the section means a Civil, Revenue or Criminal Court",
and includes a tribunal. Section 340 of the Code prescribes the procedure to be,
"followed for offences mentioned in section 195 of the Code. Therefore, the summoning",
"orders of the Magistrate against the petitioners under sections 193/191/209 IPC, 1860",
are hit by provisions of section 195 of the Code and the cognizance taken by the,
"Magistrate of the offences is, therefore, without jurisdiction.39. Sections 191 and 192 of",
"the IPC, 1860 are the sections that define offences for which punishment is provided",
"for in sections 193 and 195 as mentioned in section 195(1)(b) (i), Criminal Procedure",
Code. So the bar to initiate proceedings is applicable to sections 191 and 192 also.40.,
[s 191.15] Procedure.—,
"A combined reading of the aforequoted provisions of Cr PC, 1973 and IPC, 1860 as",
"also sub-section (3) of section 195, Cr PC, 1973 makes this legal position quite clear",
"that they are applicable to any legal proceeding before a Civil Court or a Criminal Court,",
"including a Tribunal constituted by Central, Provincial or State Acts, if declared by that",
"particular Act to be a Court for the purpose of section 195, Cr PC, 1973. Therefore, if",
the Family Court finds that any party to the proceeding or a witness therein has,
intentionally given false evidence at any stage of a judicial proceeding or fabricated,
"false evidence for the purpose of being used in any stage of the proceeding, and the",
Family Court is of the opinion that it is expedient in the interest of justice that an,
enquiry should be made into any evidence referred to in clause (b) of sub-section (1) of,
"section 195, Cr PC, 1973 it may hold a preliminary enquiry and if it thinks necessary",
then it may record a finding to that effect and then proceed to make a complaint in,
"respect of the particular offence/offences stipulated in clause (b) of section 195, Cr",
"PC, 1973 to the concerned Magistrate having jurisdiction against the said person.41.",
"1. S Palani Velayutham v District Collector Tirunvelveli TN, (2010) 1 SCC (Cr) 401 : (2009) 10 SCC",
664 [LNIND 2009 SC 1659] : (2009) 12 SCR 1215 [LNIND 2009 SC 1659] .,
"2. Chandra Shashi v Anil Kumar Verma, 1995 (1) SCC 421 [LNIND 1994 SC 1604] .",
"3. Mishrilal v State of MP, (2005)10 SCC 701 [LNIND 2005 SC 1165] : 2005 SCC (Cr) 1712.",
"4. Abdul Majid v Krishna Lal Nag, (1893) 20 Cal 724 ; Niaz Ali, (1882) 5 All 17 ; Mata Dayal (1897)",
"24 Cal 755 ; Subba, (1883) 6 Mad 252; Fatteh Ali, (1894) PR No. 15 of 1894.",
"5. Chait Ram, (1883) 6 All 103 ; Bharma, (1886) 11 Bom 702 (FB).",
"6. D Jothi v K P Kandasamy, 2000 Cr LJ 292 (Mad).",
7. (1865) 2 WR (CrL) 9.,
"8. Gobind Chandra Seal, (1892) 19 Cal 355 ; Shava v State, (1891) 16 Bom 359; contra, Maru,",
(1888) 10 All 207 .,
"9. Ranjit Singh, 1959 Cr LJ 1124 : AIR 1959 SC 843 [LNIND 1959 SC 63] .",
"10. Hari Charan Singh, (1900) 27 Cal 455 .",
"11. Parbutty Churn Sircar, (1866) 6 WR (Cr) 84; Damodhar P Kulkarni, (1868) 5 BHC (CrC) 68.",
"12. Mohammad Khudabux, (1949) Nag 355.",
"13. Echan Meeah, (1865) 2 WR (Cr) 47. Mohammod Hussein v State of Maharashtra, 1995 Cr LJ",
2364 (Bom).,
"14. Mawbey, (1796) 6 TR 619, 637; Schlesinger, (1847) 10 QB 670 .",
"15. Muhammad Ishaq, (1914) 36 All 362 .",
"16. Cross & Jones: Introduction to Criminal Law, 9th Edn, p 275.",
"17. Ramcharan, 1968 Cr LJ 1473 : AIR 1968 SC 1267 [LNIND 1968 SC 29] ; Balak Ram, 1974 Cr",
LJ 1486 : AIR 1974 SC 2165 [LNIND 1974 SC 236] .,
"18. Ibid. Kuriakose v State of Kerala, 1995 Cr LJ 2687 : 1994 Supp (1) SCC 602 , contradictory",
statements as to contents of panchanama by an attesting witness does not make him liable to,
"be prosecuted under the section, gravity of the false statement has also to be taken into",
account.,
"19. Prem Sagar Manocha v State (NCT of Delhi), 2016 Cr LJ 1090 : (2016) 4 SCC 571 [LNIND",
2016 SC 9] .,
"20. Mehrban Singh, (1884) 6 All 626 ; Padam Singh, (1930) 52 All 856 .",
"21. Ratanchand v State, (1904) 6 Bom LR 886 .",
"22. Kasi Chunder Mozumdar, (1880) 6 Cal 440 .",
23. (1867) 3 MHC (Appx.) XXXIX.,
"24. Virasami v State, (1896) 19 Mad 375; Batesar Mandal, (1884) 10 Cal 604 .",
"25. State (Govt. of NCT of Delhi) v Pankaj Chaudhary, AIR 2018 SC 5412 [LNIND 2018 SC 565] .",
"26. Note G, p 131.",
"27. Criminal Procedure Code, section 313 (3).",
"28. Buddhi Kota Subbarao v K Parasaran, AIR 1996 SC 2687 [LNIND 1996 SC 1254] : (1996) 5",
SCC 530 [LNIND 1996 SC 1254] .,
"29. Indian Structural Engineering Company Pvt Ltd v Pradip Kumar Saha, 2009 Cr LJ 4229 (Cal).",
30. Prema Bhika (1863) 1 BHC 89.,
"31. Luxumandas, (1869) Unrep CrC 25.",
"32. Shama Churn Roy, (1867) 8 WR (Cr) 27.",
"33. Baban Singh v Jagdish Singh, AIR 1967 SC 68 [LNIND 1966 SC 47] : 1967 Cr LJ 6 ; MP Paul,",
1973 Cr LJ 1284 (Ker).,
"34. State v Manoher Yeshwant Paul, 1997 Cr LJ 3114 (Bom).",
"35. Delhi Lotteries v Rajesh Agarwal, AIR 1998 : 1332 (Del).",
"36. D Jothi v K P Kandasamy, 2000 Cr LJ 292 (Mad).",
"37. Andy Chetty, (1865) 2 MHC 438 .",
"38. Chundi Churn, Nauth, (1867) 8 WR (Cr) 5.",
"39. Kusum Sandhu v Sh Ved Prakash Narang, 2009 Cr LJ 1078 (Del).",
"40. Premjit Kaur v Harsinder Singh, (1982) 2 SCC 167 : (1982) 1 SCC (Cr) 379 : 1982 CrLR 318.",
"41. Arun Kumar Agarwal v Mrs. Radha Arun, 2001 Cr LJ 3561 (KAR).",
THE INDIAN PENAL CODE,
CHAPTER XI OF FALSE EVIDENCE AND OFFENCES AGAINST PUBLIC,
JUSTICE,
"Under the Indian Penal Code, 1860 offences relating to false evidence and offences",
against public justice are contained in Chapter XI. In relation to proceeding in any,
"Court, the offences enumerated are: giving false evidence or fabricating false evidence",
(sections 191–193); giving or fabricating false evidence with intent to procure,
conviction (sections 194 and 195); threatening any person to give false evidence,
(section 195A); using evidence known to be false (section 196); using as true a,
certificate known to be false (section 198); making a false statement in a declaration,
which is by law receivable as evidence (section 199); using as true any declaration,
"receivable as evidence, knowing it to be false (section 200); causing disappearance of",
"evidence of offence, or giving false information to screen offender (section 201);",
intentional omission to give information of offence by person bound to inform (section,
202); giving false information in respect of an offence (section 203); destruction of,
document or electronic record to prevent its production as evidence (section 204);,
false personation (section 205); fraudulent removal/concealment of property (section,
206); fraudulent claim to property (section 207); fraudulently suffering or obtaining,
decree for sum not due (section 208 and section 210); dishonestly making a false,
claim in Court (section 209); and intentional insult or interruption to public servant,
sitting in judicial proceedings (section 228). Section 195 of Code of Criminal Procedure,
provides that no Court shall take cognizance of any offence punishable under section,
172–188 (dealing with the contempt of the lawful authority of public servants) or,
"section 193–196, 199, 200, 205–211 and 228, when such offence is alleged to have",
"been committed in, or in relation to, any proceeding in any Court, except on the",
complaint in writing of that Court by such officer of the Court as that Court may,
"authorise in writing in this behalf, or of some other Court to which that Court is",
subordinate.1.,
[s 192] Fabricating false evidence.,
Whoever causes any circumstance to exist or 42.[makes any false entry in any book or,
record or electronic record or makes any document or electronic record containing a,
"false statement], intending that such circumstance, false entry or false statement",
"may appear in evidence in a judicial proceeding,1 or in a proceeding taken by law",
"before a public servant2 as such, or before an arbitrator, and that such circumstance,",
"false entry or false statement so appearing in evidence, may cause any person who in",
"such proceeding is to form an opinion upon the evidence, to entertain an erroneous",
"opinion touching any point material3 to the result of such proceeding, is said ""to",
"fabricate4 false evidence"".",
ILLUSTRATIONS,
"(a) A, puts jewels into a box belonging to Z, with the intention that they may be",
"found in that box, and that this circumstance may cause Z to be convicted of",
theft. A has fabricated false evidence.,
(b) A makes a false entry in his shop-book for the purpose of using it as,
corroborative evidence in a Court of Justice. A has fabricated false evidence.,
"(c) A, with the intention of causing Z to be convicted of a criminal conspiracy, writes",
"a letter in imitation of Z's handwriting, purporting to be addressed to an",
"accomplice in such criminal conspiracy, and puts the letter in a place which he",
knows that the officers of the Police are likely to search. A has fabricated false,
evidence.,
COMMENT.—,
"The wording of this section is so general as to cover any species of crime, which",
consists in the endeavour to injure another by supplying false data upon which to rest a,
judicial decision.,
[s 192.1] Ingredients.—,
The offence defined in this section has three ingredients:—,
"(1) Causing any circumstance to exist, or making any false entry in any book or",
"record, or making any document containing a false statement.",
(2) Doing one of the above acts with the intention that it may appear in evidence in,
"a judicial proceeding, or in a proceeding taken by law before a public servant or",
an arbitrator.,
"(3) Doing such act with the intention that it may cause any person, who in such",
"proceeding, is to form an opinion upon the evidence to entertain an erroneous",
opinion touching any point material to the result of such proceeding.43. From a,
"careful reading of section 192, IPC, 1860, what transpires is that whoever forges",
"a document, containing false statement or false entry, intending that such false",
"entry or false statement may appear in evidence in a judicial proceeding, or in a",
"proceeding taken by law before a public servant as such, so appearing in",
"evidence, may cause any person, who, in such proceeding, is to form an opinion",
"upon the evidence, to entertain an erroneous opinion in such proceeding, he is",
said to fabricate false evidence.44.,
1. 'Judicial proceeding'.—The Code of Criminal Procedure says that 'judicial,
proceeding' includes any proceeding in the course of which evidence is or may be,
"legally taken on oath [section 2(i)]. The power to take evidence on oath, which includes",
"affirmation as well,45. is the characteristic test of 'judicial proceeding'. 'Judicial",
proceeding' means nothing more or less than a step taken by a Court in the course of,
administration of justice in connection with a case.46. Execution proceedings are,
judicial proceedings.47.,
It is not essential that there should be any judicial proceeding pending at the time of,
fabrication. It is enough that there is a reasonable prospect of such a proceeding,
having regard to the circumstances of the case and that the document in question is,
intended to be used in such a proceeding.48.,
2. 'Public servant'.—The provisions of this section are not confined to false evidence to,
"be used in judicial proceedings, but to any proceeding before a public servant. A",
Government correspondence was stealthily removed by accused No. 1 and handed,
over to the pleader of accused Nos. 2 and 3. The correspondence was replaced by,
accused No. 1. It was afterwards discovered that some papers had disappeared from,
the correspondence whilst others had been either mutilated or altered. It was held that,
accused Nos. 2 and 3 were guilty of offences under sections 466 and 193.49.,
3. 'Material'.—The false evidence under this section should be material to the case in,
which it is given though not so under section 191.50. The word 'material' means of such,
"a nature as to affect in any way, directly or indirectly, the probability of anything to be",
"determined by the proceeding, or the credit of any witness, and a fact may be material",
although evidence of its existence was improperly admitted.51.,
4. 'Fabricate'.—The term fabrication refers to the fabrication of false evidence; and if,
"the evidence fabricated is intended to be used in a judicial proceeding, the offence is",
committed as soon as the fabrication is complete; it is immaterial that the judicial,
"proceeding has not been commenced,52. or that no actual use has been made of the",
evidence fabricated. The mere fabrication is punishable under section 193; the use of,
the fabricated evidence is punishable under section 196.,
The evidence fabricated must be admissible evidence.53.,
[s 192.2] Liability of accused for fabricating false evidence.—,
It has been held by the High Courts of Calcutta54. and Bombay55. that an offender who,
fabricates false evidence to screen himself from punishment is liable to be convicted,
"under this section. The Allahabad High Court56. has veered round to the same view,",
after distinguishing an earlier case57. to the contrary.,
[s 192.3] Vicarious liability.—,
"Neither section 192 IPC, 1860 nor section 199 IPC, 1860, incorporate the principle of",
"vicarious liability, and therefore, it was incumbent on the complainant to specifically",
aver the role of each of the accused in the complaint.58. Penal Code does not contain,
any provision for attaching vicarious liability on the part of the managing Director or the,
Director for the Company when the accused is the company. Vicarious liability arise,
provided any provision exits in that behalf in the statute. It is obligatory on the part of,
the complainant to make requisite allegations which would attract the provision,
constituting vicarious liability.59.,
[s 192.4] CASES.—Fabrication of evidence to be used in judicial proceeding.—,
The brother of an accused person applied to the Court on behalf of the accused asking,
that the witnesses for the prosecution might first be made to identify the accused. The,
"Court assenting to this request, he produced before the Court ten or twelve men, none",
of whom could be identified as the accused by any of the witnesses. Upon being asked,
"by the Court where the accused was, he pointed out a man who was not the accused. It",
"was held that he was guilty of fabricating false evidence.60. The accused, who was in",
"possession of the complainant's house as a yearly tenant, about the time the tenancy",
"came to an end, prepared another rent-note for a period of four years and got it",
registered without the complainant's knowledge. It was held that the accused had,
"fabricated false evidence inasmuch as the rent-note, which contained an admission",
"against the interest of the accused, could be admitted in evidence on his behalf.61. By",
swearing a false affidavit the accused makes himself prima facie liable under section,
"193 read with sections 191 and 192 of the IPC, 1860.62. In order to have the value of",
"CFC excluded for the purpose of excise duty, letters were fabricated and the same were",
"seized in a raid. Fifteen months later, taking up a notice of motion, High Court directed",
filing of criminal complaints against the appellant under section 192. While agreeing,
"that the Division Bench was not wrong in making the direction, which it did on the",
"merits of the case, Supreme Court held that the High Court did not appear to have",
bestowed sufficient attention while deciding upon the expediency contemplated by,
section 340.63.,
[s 192.5] No fabrication if no erroneous opinion could be formed touching any,
point material to result of proceeding.—,
It is now well settled that prosecution for perjury should be sanctioned by the Court,
only in those cases where there is a prima facie case of deliberate and conscious,
falsehood on a matter of substance and the conviction is reasonably probable or,
likely.64. It is also very necessary that the portions of the witness's statement in regard,
"to which he has, in the opinion of the Court, perjured himself, should be specifically set",
out in or form annexure to the show cause notice issued to the accused so that he is in,
a position to furnish adequate and proper reply in regard thereto and be able to meet,
the charge.65.,
[s 192.6] No fabrication of evidence fabricated is inadmissible.—,
The mere fact that a document would be ultimately inadmissible in evidence does not,
necessarily take it out of the mischief of section 193.66.,
"1. S Palani Velayutham v District Collector Tirunvelveli TN, (2010) 1 SCC (Cr) 401 : (2009) 10 SCC",
664 [LNIND 2009 SC 1659] : (2009) 12 SCR 1215 [LNIND 2009 SC 1659] .,
"42. Subs. by The Information Technology Act, 2000 (Act 21 of 2000) section 91 and First Sch,",
"w.e.f. 17 October 2000, for the words ""makes any false entry in any book or record, or makes any",
"document contained on false statement"". The words ""electronic record"" have been defined in",
section 29A.,
"43. Babu Lal v State of UP, (1964) 1 Cr LJ 555 : AIR 1964 SC 725 [LNIND 1963 SC 218] .",
"Maharashtra State Electricity Distribution Co Ltd v Datar Switchgerar Ltd, (2010) 10 SCC 479",
[LNIND 2010 SC 979] : 2011 CR LJ. 8 : (2010) 12 SCR 551 : (2011) 1 SCC (Cr) 68; See State of,
"MP v Asian Drugs, 1990 Cr LJ 105 MP, the defence exposing fabrication by Inspectors under The",
"Drugs and Cosmetics Act, 1940 (23 of 1940).",
44. Sushanta Sarkar v State of Nagaland 2012 Cr LJ 4467 (Gau).,
"45. The General Clauses Act, 1897 (X of 1897), section 3 (37)",
"46. Venkatachalam Pillai, (1864) 2 MHC 43 ; Tulja v State, (1887) 12 Bom 36, 42.",
"47. Govind Pandurang, (1920) 22 Bom LR 1239 , 45 Bom 668.",
"48. Rajaram, (1920) 22 Bom LR 1229 [LNIND 1920 BOM 119] ; Govind Pandurang, Ibid.",
"49. Vallabhram Ganpatram, (1925) 27 Bom LR 1391 .",
"50. Tookaram, (1862) Unrep. CrC 2.",
"51. Stephen's Digest, Art 148; SP Kohli, 1978 Cr LJ 1804 : AIR 1978 SC 1753 [LNIND 1978 SC",
235] .,
"52. Mula, (1879) 2 All 105 .",
"53. Zakir Husain, (1898) 21 All 159 .",
"54. Superintendent and Remembrancer of Legal Affairs, Bengal v Taraknath Chatterji, (1935) 62",
Cal 666 .,
"55. Rama Nana, (1921) 46 Bom 317, 23 Bom LR 987.",
"56. Bhagirath Lal, (1934) 57 All 403 .",
"57. Ram Khilawan, (1906) 28 All 705 .",
"58. Maharashtra State Electricity Distribution Co Ltd v Datar Switchgerar Ltd, (2010) 10 SCC 479",
[LNIND 2010 SC 979] : 2011 Cr LJ 8 : (2010) 12 SCR 551 : (2011) 1 SCC (Cr) 68.,
"59. Maksud Saiyed v State of Gujarat, (2008) 5 SCC 668 [LNIND 2007 SC 1090] : JT 2007 (11) SC",
276 [LNIND 2007 SC 1090] : 2008 (5) SCR 1240 : (2008) 6 Scale 81 [LNIND 2008 SC 848] :,
(2008) 2 SCC (Cr) 692.,
"60. Cheda Lal, (1907) 29 All 351 .",
"61. Rajaram, (1920) 22 Bom LR 1229 [LNIND 1920 BOM 119] .",
"62. Baban Singh, 1967 Cr LJ 6 : AIR 1967 SC 68 [LNIND 1966 SC 47] .",
"63. Phiroze Dinshaw Lam v UOI, 1996) 8 SCC 209 : (1996) 1 SCC (Cr) 575.",
"64. SP Kohli, 1978 Cr LJ 1804 : AIR 1978 SC 1753 [LNIND 1978 SC 235] .",
65. Ibid.,
"66. Mahesh Chandra Dhupi, (1940) 1 Cal 465 .",
THE INDIAN PENAL CODE,
CHAPTER XI OF FALSE EVIDENCE AND OFFENCES AGAINST PUBLIC,
JUSTICE,
"Under the Indian Penal Code, 1860 offences relating to false evidence and offences",
against public justice are contained in Chapter XI. In relation to proceeding in any,
"Court, the offences enumerated are: giving false evidence or fabricating false evidence",
(sections 191–193); giving or fabricating false evidence with intent to procure,
conviction (sections 194 and 195); threatening any person to give false evidence,
(section 195A); using evidence known to be false (section 196); using as true a,
certificate known to be false (section 198); making a false statement in a declaration,
which is by law receivable as evidence (section 199); using as true any declaration,
"receivable as evidence, knowing it to be false (section 200); causing disappearance of",
"evidence of offence, or giving false information to screen offender (section 201);",
intentional omission to give information of offence by person bound to inform (section,
202); giving false information in respect of an offence (section 203); destruction of,
document or electronic record to prevent its production as evidence (section 204);,
false personation (section 205); fraudulent removal/concealment of property (section,
206); fraudulent claim to property (section 207); fraudulently suffering or obtaining,
decree for sum not due (section 208 and section 210); dishonestly making a false,
claim in Court (section 209); and intentional insult or interruption to public servant,
sitting in judicial proceedings (section 228). Section 195 of Code of Criminal Procedure,
provides that no Court shall take cognizance of any offence punishable under section,
172–188 (dealing with the contempt of the lawful authority of public servants) or,
"section 193–196, 199, 200, 205–211 and 228, when such offence is alleged to have",
"been committed in, or in relation to, any proceeding in any Court, except on the",
complaint in writing of that Court by such officer of the Court as that Court may,
"authorise in writing in this behalf, or of some other Court to which that Court is",
subordinate.1.,
[s 193] Punishment for false evidence.,
"Whoever intentionally gives false evidence in any stage of a judicial proceeding, or",
fabricates false evidence for the purpose of being used in any stage of a judicial,
"proceeding,1 shall be punished with imprisonment of either description for a term",
"which may extend to seven years, and shall also be liable to fine, and whoever",
"intentionally gives or fabricates false evidence in any other case,2 shall be punished",
"with imprisonment of either description for a term which may extend to three years,",
and shall also be liable to fine.,
Explanation 1.—A trial before a Court-martial; 67. [***] is a judicial proceeding.,
Explanation 2.—An investigation directed by law preliminary to a proceeding before a,
"Court of Justice, is a stage of a judicial proceeding, though that investigation may not",
take place before a Court of Justice.,
ILLUSTRATION,
"A, in an enquiry before a Magistrate for the purpose of ascertaining whether Z ought to",
"be committed for trial, makes on oath a statement which he knows to be false. As this",
"enquiry is a stage of a judicial proceeding, A has given false evidence.",
"Explanation 3.—An investigation directed by a Court of Justice according to law, and",
"conducted under the authority of a Court of Justice, is a stage of a judicial",
"proceeding, though that investigation may not take place before a Court of Justice.",
ILLUSTRATION,
"A, in any enquiry before an officer deputed by a Court of Justice to ascertain on the",
"spot the boundaries of land, makes on oath a statement which he knows to be false.",
As this enquiry is a stage of a judicial proceeding. A has given false evidence.,
COMMENT.—,
Sections 191 and 192 define the offences punishable under this section. The first,
paragraph applies only to cases in which the false evidence is given in a judicial,
"proceeding, the second to all other cases. If the offence is committed in any stage of a",
judicial proceeding it is more severely punishable than when it is committed in a non-,
judicial proceeding.,
Intention is the essential ingredient in the constitution of this offence. If the statement,
"was false, and known or believed by the accused to be false, it may be presumed that",
in making that statement he intentionally gave false evidence. In order to make a,
person liable for perjury it is necessary that he should have made a statement on oath,
regarding the facts on which his statement was based and then deny those facts on,
oath on a subsequent occasion.68. The mere fact that a deponent has made,
contradictory statements at two different stages in a judicial proceeding is not by itself,
always sufficient to justify a prosecution for perjury under section 193 but it must be,
established that the deponent has intentionally given false statement in any stage of,
the 'judicial proceeding' or fabricated false evidence for the purpose of being used in,
any stage of the 'judicial proceeding'.69.,
It is not necessary that the false statement should be material to the case. The gist of,
the offence is the giving or fabrication of false evidence intentionally. Where knowledge,
"of falsity is proved, intention is readily presumed.70.",
1. 'Any stage of a judicial proceeding'.—The recording of a statement under section,
161 itself is a judicial proceeding in view of Explanation 2 to section 193 in so far as,
recording of a statement is part of the investigation directed by law preliminary to a,
proceeding before a Court of justice and therefore is a stage of the judicial,
proceedings. Mere failure to support contention made in said FIR while giving evidence,
"under section 164 Cr PC, 1973, can't conclusively lead to hold that he had given false",
evidence by departing from contentions made in FIR.71. Where a witness in Sessions,
"trial deposing contrary to what he had said in a statement recorded under section 164,",
recourse to section 340 cannot be taken without first deciding whether the earlier,
statement was false.72. In the course of proceedings for execution of a decree in a,
Court which had no jurisdiction to entertain such proceedings the judgment-debtor,
made a false statement and produced a forged receipt. The Court made a complaint,
under section 195 of the Criminal Procedure Code for prosecution of the judgment-,
debtor in respect of the said offences; it was held that if during the course of the,
proceedings which were ultra vires and illegal any offence under section 471 of the,
"Code was committed, it could not be said that it was committed in or in relation to, or",
"by a party to, any judicial proceedings, in which evidence could be legally taken, and",
therefore the complaint must be dismissed.73. Since enquiry conducted by an officer of,
the Railway Protection Force is a judicial proceeding under section 9 of The Railway,
"Property (Unlawful Possession) Act, 1966, furnishing of false documents in course of",
"such an enquiry would amount to an offence under section 193, IPC, 1860.74. Giving",
false evidence in support of the prosecution case during the course of trial falls within,
"the ambit of sections 193 and 195, IPC, 1860, and not under section 211, IPC, 1860, as",
there is no institution of criminal proceeding in such a case.75. (See Comments under,
"sub-head ""Falsely Charges"" under section 211 infra.) Where the accused abetted the",
offence of forgery by creating a false document with a view to use it in a suit but did,
"not use it in the suit, it was held that there was no question of prosecuting him under",
"section 193, IPC, 1860, nor was a Court complaint under section 195(1) (b) (i), Cr PC,",
"1973, necessary in the case. The accused could be safely prosecuted under section",
"467 read with section 114, IPC, 1860, on a private complaint.76.",
Where the accused police-officer asked a police official to forge the signature of his,
superior on the carbon copy of the counter-affidavit containing false averments and the,
"same was filed in the Supreme Court with that forged signature, the accused was held",
guilty of an offence under section 192.77.,
Questions which a person is compelled to answer and the answers which have a,
"tendency to incriminate, cannot be the sole basis of a charge of perjury.78.",
[s 193.1] Court Complaint: When?—,
"In Iqbal Singh Marwah v Meenakshi Marwah,79. the Constitution Bench held that the",
"section 195(1)(b)(ii) -Cr PC, 1973 which mandates that 'no Court shall take cognizance",
of offences relating to documents given in evidence except on the complaint in writing,
"of that Court, or of some other Court to which that Court is subordinate', would be",
attracted only when the offences enumerated in the said provision have been,
committed with respect to a document after it has been produced or given in evidence,
"in a proceedings in any Court, i.e., during the time when the documents was in custodial",
"legis.80. Though the Rent Controller discharges quasi-judicial functions, he is not a",
"Court, as understood in the conventional sense and he cannot, therefore, make a",
"complaint under section 340 Cr PC, 1973.81.",
[s 193.2] Belated complaint.—,
A witness made false statement before a competent Court and the accused were,
convicted. The appellate Court (Sessions Court) held that the witness had given false,
statement and directed that a notice be issued to him to show cause why a complaint,
"under section 193, IPC, 1860 be not filed against him. The notice was issued and after",
"hearing him, the Court directed that a complaint be filed. The High Court found that the",
notice issued to him was no notice because it did not specify the portions that were,
"found to be false, besides the statement was recorded ten years ago. The Court held",
that it was not proper to file a complaint at that stage. The Court set aside the order of,
the Sessions Judge.82.,
[s 193.3] Supreme Court cannot convert itself into trial Court.—,
The accused filed a forged affidavit before the Supreme Court. It was held by the three,
Judge Bench that the Supreme Court could not try and convict the accused. The order,
of the Supreme Court convicting the accused and sentencing him to three months',
imprisonment was liable to be set aside because of non-compliance of procedure,
"prescribed by sections 195 and 340, Cr PC, 1973 and also because of lack of original",
"jurisdiction to try a criminal offence under section 193, IPC, 1860. Directions to the",
competent authority to proceed in the matter were not issued because the accused,
had already served out the sentence of imprisonment imposed on him.83.,
[s 193.4] False Affidavits.—,
The swearing of false affidavits in judicial proceedings not only has the tendency of,
causing obstruction in the due course of judicial proceedings but has also the tendency,
"to impede, obstruct and interfere with the administration of justice. The due process of",
law cannot be permitted to be slighted nor the majesty of law be made a mockery by,
such acts or conduct on the part of the parties to the litigation or even while appearing,
as witnesses. Anyone who makes an attempt to impede or undermine or obstruct the,
free flow of the unsoiled stream of justice by resorting to the filing of false evidence,
commits criminal contempt of the Court and renders himself liable to be dealt with in,
"accordance with the Act. On facts, High Court found that apart from committing",
contempt of Court the accused-1 has also committed an offence of perjury punishable,
"under section 193, IPC, 1860 committed in relation to proceedings of the Court. Court",
"directed the Registrar (Judicial) under section 340(3)(b), Cr PC, 1973 to file a complaint",
before the jurisdictional Magistrate in this regard.84.,
[s 193.5] CASES.—,
A father handed over the custody of his minor daughter to the accused woman for,
"household chores, but thereafter his efforts to get back his daughter failed. He filed a",
habeas corpus petition and the Court directed the respondent to produce the girl in,
response to which the respondent produced some other girl of the same name to,
"mislead the Court. The Court directed that a complaint under sections 193, 196 and",
199 be lodged against the respondent.85. Declaration in an application filed under,
"section 482 of Cr PC, 1973 that the applicant had not approached the Supreme Court",
"or the High Court earlier is not perjury, though applicant had filed for anticipatory Bail",
before the Sessions Court.86.,
[s 193.6] Hostile witness.—,
"In a prosecution under sections 489B and 489C, all prosecution witnesses who were",
police officials turned hostile. Subsequently they filed affidavits stating that they were,
threatened by higher officers not to support their previous statements during,
"investigation. Court set aside the order of acquittal of the accused, ordered re-trial and",
"directed to proceed under sections 193 and 195A.87. After a long span of time, the",
prosecution witnesses filed a false affidavit stating that they were coerced and tutored,
by police. They were held liable for perjury.88.,
2. 'In any other case'.—A statement made in the course of a public investigation under,
section 164 of the Code of Criminal Procedure comes within these words.89. Whether,
"the accused has really made a false statement or not is a question of fact, which can",
"be decided at the trial and not in quashing proceeding, when the allegations, which",
have been made against the accused do make out a prima facie case under section,
"193, IPC, 1860.90. A person married the daughter of his maternal uncle, after converting",
to Christianity. If they married before conversion this marriage would have come under,
"'Sapindas relations' which is prohibited under the Hindu Marriage Act, 1955. After",
conversion into Christianity the marriage does not fall under 'Sapinda' relationship. It,
cannot be said that there was any false declaration. It is held that offence punishable,
"under section 193 of IPC, 1860 is not made out.91.",
"[s 193.7] Section 193 IPC, 1860 and Section 125A of the Representation of",
"Peoples Act, 1950.—",
Where a specific penal provision is made under the Act providing a penalty for filing,
"false affidavit under section 125A of the Act, without anything more, for filing such a",
"false affidavit, that alone, no prosecution under the general penal provision of section",
"193 of the Penal Code is entertainable. Furthermore, the penal provision under section",
"193 IPC, 1860 has to be understood giving significance to the expressions 'intentionally",
"giving or fabricating false evidence', 'in any stage of a judicial proceeding' or 'in any",
other case.' Giving or fabricating false evidence in the aforesaid section whether it be in,
the judicial proceeding or in any other case must have been intended to form an,
opinion on the evidence erroneously and such forming of opinion should be touching,
the point material to the result of such proceeding. Viewed in that angle the declaration,
to be made by a candidate in his affidavit filed with his nomination paper over the,
"matters prescribed by the election commission when he contests an election, it cannot",
be stated that the candidate is giving evidence by affidavit but at best only a,
declaration on the particulars sought for. If the candidate fails to furnish information or,
gives false information which he knows or has reason to believe to be false or conceals,
any information he is liable to be prosecuted only for the offence under section 125A of,
"the Act, and not for the penal offence under section 193 IPC, 1860.92.",
"[s 193.8] Section 193 IPC, 1860 and proceedings under section 340 Cr PC,",
1973.—,
"Power to punish under section 344 Cr PC, 1973 and section 193 Cr PC, 1973 are",
"distinct. Section 344 Cr PC, 1973 calls for summary trial, whereas under section 193",
"IPC, 1860 offender is to be tried as warrant case. Section 344 Cr PC, 1973 vests powers",
in the Courts to summarily try and punish the accused. It is for this reason that section,
"344 Cr PC, 1973 prescribes sentence also. The Judge either should have convicted the",
"petitioner under section 344 Cr PC, 1973 or ought not to have invoked section 193 IPC,",
"1860. Once, the Judge opted to try the petitioner for the offence under section 193 IPC,",
"1860, it was incumbent upon him to hold an inquiry under section 340 Cr PC, 1973 and",
then to frame a charge and try the offender for a warrant case as minimum sentence,
"prescribed under section 193 IPC, 1860 is three years.93. Before lodging a complaint as",
"provided by section 340 of the Code, the Court has to record a finding of any (i) prima",
facie case and deliberate falsehood on a matter of substance; (ii) there is reasonable,
foundation for the charge; and (iii) it is expedient in the interest of justice that a,
"complaint should be filed.94. An enquiry when made, under section 340 (1) Cr PC, 1973,",
is really in the nature of affording a locus paenitentiae to a person and if at that stage,
"the Court chooses to take action, it does not mean that he will not have full and",
adequate opportunity in due course of the process of justice to establish his,
"innocence. When the trial of the appellant commences under section 193, IPC, 1860",
"the reasons given or those in the order passed under section 340 (1), Cr PC, 1973",
should not weigh with the criminal Court in coming to its independent conclusion,
"whether the offence under section 193, IPC, 1860 has been fully established against",
the appellant beyond reasonable doubt.95.,
"1. S Palani Velayutham v District Collector Tirunvelveli TN, (2010) 1 SCC (Cr) 401 : (2009) 10 SCC",
664 [LNIND 2009 SC 1659] : (2009) 12 SCR 1215 [LNIND 2009 SC 1659] .,
"67. The words ""or before a Military Court of Request"" omitted by Act 13 of 1889, section 2 and",
Sch.,
"68. Ismail Khan v State of Karnataka, 1992 Cr LJ 3566 (Kant).",
"69. KTMS Mohd v UOI, AIR 1992 SC 2199 : 1992 Cr LJ 2781 .",
"70. Sadasiba, (1956) Cut 87; Pravinchand v Ibrahim Md, 1987 Cr LJ 1795 (Bom).",
"71. Bimal Das v The State of Tripura, 2012 Cr LJ 1252 (Gau).",
"72. Thomman v IInd Addl Sessions Judge, 1994 Cr LJ 48 (Ker).",
"73. Sumat Prasad v State, (1942) All 42 .",
"74. BC Saxena, 1983 Cr LJ 1432 (AP).",
"75. Santosh Singh v Izahar Hussain, 1973 Cr LJ 1176 : AIR 1973 SC 2190 [LNIND 1973 SC 160] .",
"76. State of Karnataka v Hemareddy, 1981 Cr LJ 1019 : AIR 1981 SC 1417 [LNIND 1981 SC 44] :",
(1981) 2 SCC 185 [LNIND 1981 SC 44] .,
"77. Afzal v State of Haryana, AIR 1996 SC 2326 [LNIND 1996 SC 130] : 1996 Cr LJ 1679 .",
"78. NSR Krishna Prasad v Directorate of Enforcement LBK Market, 1992 Cr LJ 1888 (AP). See",
"section 132, The Indian Evidence Act, 1972.",
"79. Iqbal Singh Marwah v Meenakshi Marwah, (2005) 4 SCC 370 [LNIND 2005 SC 261] : AIR 2005",
SC 2119 [LNIND 2005 SC 261] .,
"80. Sushanta Sarkar v State of Nagaland, 2012 Cr LJ 4467 (Gau).",
"81. Iqbal Singh Narang v Veeran Narang, AIR 2012 SC 466 [LNIND 2011 SC 1189] : (2012) 2 SCC",
60 [LNIND 2011 SC 1189] ;2012 AIR (SCW) 730 : (2012) 1 SCC (Cr) 740.,
"82. Jagdish Prasad Singhal v State of Rajasthan, 1994 Cr LJ 759 (Raj).",
"83. Randhir Singh v State of Haryana, AIR 2000 SC 544 [LNIND 2000 SC 27] : 2000 Cr LJ 755 .",
"Another ruling to the same effect, MS Ahlawat v State of Haryana, AIR 2000 SC 168 [LNIND 1999",
"SC 1395] : (2000) Cr LJ 388 ; Mohammed Zahid v Govt. of NCT of Delhi, 1998 Cr LJ 2908 : AIR",
1998 SC 2023 [LNIND 1998 SC 557] .,
"84. Advocate General,Karnataka v Chidambara, 2004 Cr LJ 493 (Kant).",
"85. R Rathinam v Kamla Vaiduriam, 1993 Cr LJ 2661 (Mad).",
"86. Rajkumar Dhanuji Bombarde v Madhukar Wankhede, 2008 Cr LJ 661 (Bom).",
"87. Court on Its Own Motion v State of Punjab, 2012 Cr LJ 2240 (PH).",
"88. State of MP v Badri Yadav, 2006 Cr LJ 2128 : AIR 2006 SC 1769 [LNIND 2006 SC 229] :",
(2006) 9 SCC 549 [LNIND 2006 SC 229] .,
"89. Purshottam Ishvar, (1920) 23 Bom LR 1 ; 45 Bom 834 (FB). Mohammed Zahid v Govt. of NCT",
"of Delhi, AIR 1998 SC 2023 [LNIND 1998 SC 557] : 1998 Cr LJ 2908 , false entries in case diary,",
"interpolations, cooking up false case against the accused, show-cause notices issued against",
the concerned police officer for the offence.,
"90. Sushanta Sarkar v State of Nagaland, 2012 Cr LJ 4467 (Gau).",
"91. O P Gogne v State, 2012 Cr LJ 1718 (Del).",
"92. Ganesh Kumar v PK Raju, 2013 (2) Ker LT 434 : 1 LR 2013 (2) Ker 710 .",
"93. Jaskaran v State of Haryana, 2008 Cr LJ 4261 (PH).",
"94. Rit Lai Khatway v State of Bihar, 2007 Cr LJ 593 (Pat). See also State (Govt. of NCT of Delhi) v",
"Pankaj Chaudhary, AIR 2018 SC 5412 [LNIND 2018 SC 565] .",
"95. K Karunakaran v TV Eachara Warrier, AIR 1978 SC 290 [LNIND 1977 SC 319] : (1978) 1 SCC",
18 [LNIND 1977 SC 319] .,
THE INDIAN PENAL CODE,
CHAPTER XI OF FALSE EVIDENCE AND OFFENCES AGAINST PUBLIC,
JUSTICE,
"Under the Indian Penal Code, 1860 offences relating to false evidence and offences",
against public justice are contained in Chapter XI. In relation to proceeding in any,
"Court, the offences enumerated are: giving false evidence or fabricating false evidence",
(sections 191–193); giving or fabricating false evidence with intent to procure,
conviction (sections 194 and 195); threatening any person to give false evidence,
(section 195A); using evidence known to be false (section 196); using as true a,
certificate known to be false (section 198); making a false statement in a declaration,
which is by law receivable as evidence (section 199); using as true any declaration,
"receivable as evidence, knowing it to be false (section 200); causing disappearance of",
"evidence of offence, or giving false information to screen offender (section 201);",
intentional omission to give information of offence by person bound to inform (section,
202); giving false information in respect of an offence (section 203); destruction of,
document or electronic record to prevent its production as evidence (section 204);,
false personation (section 205); fraudulent removal/concealment of property (section,
206); fraudulent claim to property (section 207); fraudulently suffering or obtaining,
decree for sum not due (section 208 and section 210); dishonestly making a false,
claim in Court (section 209); and intentional insult or interruption to public servant,
sitting in judicial proceedings (section 228). Section 195 of Code of Criminal Procedure,
provides that no Court shall take cognizance of any offence punishable under section,
172–188 (dealing with the contempt of the lawful authority of public servants) or,
"section 193–196, 199, 200, 205–211 and 228, when such offence is alleged to have",
"been committed in, or in relation to, any proceeding in any Court, except on the",
complaint in writing of that Court by such officer of the Court as that Court may,
"authorise in writing in this behalf, or of some other Court to which that Court is",
subordinate.1.,
[s 194] Giving or fabricating false evidence with intent to procure conviction of,
capital offence.,
"Whoever gives or fabricates false evidence, intending thereby to cause, or knowing it",
"to be likely that he will thereby cause, any person to be convicted of an offence which",
is capital 96.[by the law for the time being in force in 97.[India]] shall be punished with,
"98.[imprisonment for life], or with rigorous imprisonment for a term which may extend",
"to ten years, and shall also be liable to fine;",
if innocent person be thereby convicted and executed.,
and if an innocent person be convicted and executed in consequence of such,
"false evidence, the person who gives such false evidence shall be punished either",
with death or the punishment hereinbefore described.,
COMMENT.—,
This is an aggravated form of the offence of giving or fabricating false evidence made,
punishable by section 193.,
To constitute an offence under this section the accused must give false evidence,
intending thereby to cause some person to be convicted of a capital offence. A person,
who brings before a Court a witness whom he has tutored to tell a false story,
"concerning a murder case before it, commits an offence under this section.99.",
[s 194.1] CASE.—,
Where the Investigating Officer fabricated false evidence by manipulating the records in,
large number of documents to get the accused persons convicted and the time was,
not mentioned in documents prepared during investigation conviction under section,
194 was held proper.100. Where the Investigating Inspector concocted false evidence,
with the help of two sarpanchas and villagers to rope in an innocent man in a false,
murder case which led to his conviction by the Sessions Court and during the course of,
hearing of the appeal in the High Court the so-called murdered man appeared in person,
"before the High Court, it was held that the Inspector, the sarpanchas and the other",
"witnesses were liable to be prosecuted under section 194, IPC, 1860, read with section",
"340, Cr PC, 1973.101.",
"1. S Palani Velayutham v District Collector Tirunvelveli TN, (2010) 1 SCC (Cr) 401 : (2009) 10 SCC",
664 [LNIND 2009 SC 1659] : (2009) 12 SCR 1215 [LNIND 2009 SC 1659] .,
"96. Subs. by the A.O. 1948, for ""by the law of British India or England"".",
"97. Subs. by Act 3 of 1951, section 3 and Sch, for ""the States"" (w.e.f. 1 April 1951).",
"98. Subs. by Act 26 of 1955, section 117 and Sch, for ""transportation for life"" (w.e.f. 1 January",
1956).,
"99. Sur Nath Bhaduri, (1927) 50 All 365 .",
"100. Suresh Chandra Sharma v State of MP, AIR 2009 SC 3196 ; 2009 Cr LJ 4288 (SC).",
"101. Darshan Singh, 1985 Cr LJ NOC 71 (P&H). See also Baij Nath Dubey v Avas Evam Vikas",
"Parishad, 1997 Cr LJ 2681 (All).",
THE INDIAN PENAL CODE,
CHAPTER XI OF FALSE EVIDENCE AND OFFENCES AGAINST PUBLIC,
JUSTICE,
"Under the Indian Penal Code, 1860 offences relating to false evidence and offences",
against public justice are contained in Chapter XI. In relation to proceeding in any,
"Court, the offences enumerated are: giving false evidence or fabricating false evidence",
(sections 191–193); giving or fabricating false evidence with intent to procure,
conviction (sections 194 and 195); threatening any person to give false evidence,
(section 195A); using evidence known to be false (section 196); using as true a,
certificate known to be false (section 198); making a false statement in a declaration,
which is by law receivable as evidence (section 199); using as true any declaration,
"receivable as evidence, knowing it to be false (section 200); causing disappearance of",
"evidence of offence, or giving false information to screen offender (section 201);",
intentional omission to give information of offence by person bound to inform (section,
202); giving false information in respect of an offence (section 203); destruction of,
document or electronic record to prevent its production as evidence (section 204);,
false personation (section 205); fraudulent removal/concealment of property (section,
206); fraudulent claim to property (section 207); fraudulently suffering or obtaining,
decree for sum not due (section 208 and section 210); dishonestly making a false,
claim in Court (section 209); and intentional insult or interruption to public servant,
sitting in judicial proceedings (section 228). Section 195 of Code of Criminal Procedure,
provides that no Court shall take cognizance of any offence punishable under section,
172–188 (dealing with the contempt of the lawful authority of public servants) or,
"section 193–196, 199, 200, 205–211 and 228, when such offence is alleged to have",
"been committed in, or in relation to, any proceeding in any Court, except on the",
complaint in writing of that Court by such officer of the Court as that Court may,
"authorise in writing in this behalf, or of some other Court to which that Court is",
subordinate.1.,
[s 195] Giving or fabricating false evidence with intent to procure conviction of,
offence punishable with imprisonment for life or imprisonment.,
"Whoever gives or fabricates false evidence intending thereby to cause, or knowing it",
"to be likely that he will thereby cause, any person to be convicted of an offence which",
"102.[by the law for the time being in force in 103.[India]] is not capital, but punishable",
"with 104.[imprisonment for life], or imprisonment for a term of seven years or",
"upwards, shall be punished as a person convicted of that offence would be liable to be",
punished.,
ILLUSTRATION,
"A gives false evidence before a Court of Justice, intending thereby to cause Z to be",
"convicted of a dacoity. The punishment of dacoity is 105.[imprisonment for life], or",
"rigorous imprisonment for a term which may extend to ten years, with or without fine.",
"A, therefore, is liable to 106.[imprisonment for life] or imprisonment, with or without",
fine.,
COMMENT.—,
This section is similar to the preceding section except as regards the gravity of the,
offence in respect of which the perjury is committed. The preceding section deals with,
"perjury in the case of an offence punishable with death, this section deals with perjury",
of an offence punishable with imprisonment for life or imprisonment for a term of,
seven years or upwards. In the case of a person who burnt his own house and charged,
"another with the act, it was held that he should not be convicted under this section, but",
"under section 211,107. but where A, with a view to having B convicted, assisted in",
"concealing stolen railway pins in his house and field, it was held that A was properly",
convicted of an offence under this section.108. Giving false evidence in support of the,
"prosecution case amounts to an offence under sections 193 and 195, IPC, 1860, and",
"not under section 211, IPC, 1860.109. Misstatement of facts and concealment of an",
essential fact in a writ petition amounts to giving false evidence. The petitioner was,
liable to face proceedings for giving false evidence.110. It is not necessary that,
fabrication of false evidence takes place only inside the Court as it can also be,
fabricated outside the Court though has been used in the Court.111.,
A Disciplinary Proceedings Tribunal is not a Court for the purposes of this section. It is,
"not ""a court in the accepted sense of that term, though it may possess some of the",
"trappings of a court.""112. A party giving an answer to a question put under Order 10 r. 2",
"of the CPC when not under oath and when not being examined as a witness, cannot",
"attract section 195 IPC, 1860.113. Police-officers fabricated the evidence in order to",
"book the appellant under TADA. From the materials on record, Supreme Court was of",
the opinion that it is expedient in the interest of justice that an enquiry should be made,
"in accordance with sub-section (1) of section 340, Cr PC, 1973 into the commission of",
"offences under sections 193, 195 and 211.114.",
[s 195.1] St. Kitts (Chandraswamy) Case.—,
"The respondent, was at the relevant time, serving as Director (Enforcement) with the",
government of India. The respondent was a public servant at the time of the,
"commission of the alleged offence, no cognizance of the offence could have been",
taken against him in the absence of sanction under section 197 Criminal Procedure,
Code.115.,
"1. S Palani Velayutham v District Collector Tirunvelveli TN, (2010) 1 SCC (Cr) 401 : (2009) 10 SCC",
664 [LNIND 2009 SC 1659] : (2009) 12 SCR 1215 [LNIND 2009 SC 1659] .,
"102. Subs. by the A.O. 1948, for ""by the law of British India or England"".",
"103. Subs. by Act 3 of 1951, section 3 and Sch, for ""the States"" (w.e.f. 1 April 1951).",
"104. Subs. by Act 26 of 1955, section 117 and Sch, for ""transportation for life"" (w.e.f. 1 January",
1956).,
"105. Subs. by Act 26 of 1955, section 117 and Sch., for ""transportation for life"" (w.e.f. 1 January",
1956).,
"106. Subs. by Act 26 of 1955, section 117 and Sch., for ""such transportation"" (w.e.f. 1 January",
1956).,
"107. Bhugwan Ahir, (1867) 8 WR (Cr) 65.",
"108. Rameshar Rai, (1877) 1 All 379 .",
"109. Santokh Singh, 1973 Cr LJ 1176 : AIR 1976 SC 2190 .",
"110. Dehri Cooperative Development v State of Bihar, 2002 Cr LJ 3396 (Pat); Mohommed Zahid v",
"Govt. NCT of Delhi, 1998 Cr LJ 2908 : AIR 1998 SC 2023 [LNIND 1998 SC 557] : (1998) 5 SCC",
"419 [LNIND 1998 SC 557] , for note on the case see under section 193. Also see Harrianna",
"Gowda v State of Karnataka, 1998 Cr LJ 4756 (Kant).",
"111. Ram Dhan v State of UP, 2012 (4) Scale 259 [LNIND 2012 SC 1057] : 2012 AIR (SCW) 2500 :",
2012 Cr LJ 2419 : (2012) 5 SCC 536 [LNIND 2012 SC 1057] : AIR 2012 SC 2513 [LNIND 2012 SC,
"1057] relied on Sachida Nand Singh v State of Bihar, (1998) 2 SCC 493) [LNIND 1998 SC 138] .",
"112. R Venkat Reddy v State of AP, 1992 Cr LJ 414 .",
"113. Kapil Corepacks Pvt Ltd v Harbans Lal, 2 AIR 2010 SC 2809 [LNIND 2010 SC 697] : 2010 (7)",
Scale 558 [LNIND 2010 SC 697] : (2010) 9 SCR 500 [LNIND 2010 SC 697] : (2010) 3 SCC (Cr),
924.,
"114. Mohd Zahid v Govt. of NCT of Delhi, AIR 1998 SC 2023 [LNIND 1998 SC 557] : (1998) 5 SCC",
419 [LNIND 1998 SC 557] .,
"115. State through Central Bureau of Investigation v B L Verma, (1997) 10 SCC 772 ; See also",
"Asha Sunder Shivdasani v Aruna Ramesh Kriplani, 2001 Cr LJ 2146 (Bom) - proceedings quashed",
"as hit by section 195 Cr PC, 1973.",
THE INDIAN PENAL CODE,
CHAPTER XI OF FALSE EVIDENCE AND OFFENCES AGAINST PUBLIC,
JUSTICE,
"Under the Indian Penal Code, 1860 offences relating to false evidence and offences",
against public justice are contained in Chapter XI. In relation to proceeding in any,
"Court, the offences enumerated are: giving false evidence or fabricating false evidence",
(sections 191–193); giving or fabricating false evidence with intent to procure,
conviction (sections 194 and 195); threatening any person to give false evidence,
(section 195A); using evidence known to be false (section 196); using as true a,
certificate known to be false (section 198); making a false statement in a declaration,
which is by law receivable as evidence (section 199); using as true any declaration,
"receivable as evidence, knowing it to be false (section 200); causing disappearance of",
"evidence of offence, or giving false information to screen offender (section 201);",
intentional omission to give information of offence by person bound to inform (section,
202); giving false information in respect of an offence (section 203); destruction of,
document or electronic record to prevent its production as evidence (section 204);,
false personation (section 205); fraudulent removal/concealment of property (section,
206); fraudulent claim to property (section 207); fraudulently suffering or obtaining,
decree for sum not due (section 208 and section 210); dishonestly making a false,
claim in Court (section 209); and intentional insult or interruption to public servant,
sitting in judicial proceedings (section 228). Section 195 of Code of Criminal Procedure,
provides that no Court shall take cognizance of any offence punishable under section,
172–188 (dealing with the contempt of the lawful authority of public servants) or,
"section 193–196, 199, 200, 205–211 and 228, when such offence is alleged to have",
"been committed in, or in relation to, any proceeding in any Court, except on the",
complaint in writing of that Court by such officer of the Court as that Court may,
"authorise in writing in this behalf, or of some other Court to which that Court is",
subordinate.1.,
116.[s 195A] Threatening or any person to give false evidence.,
"[Whoever threatens another with any injury to his person, reputation or property or to",
"the person or reputation of any one in whom that person is interested, with intent to",
cause that person to give false evidence shall be punished with imprisonment of,
"either description for a term which may extend to seven years, or with fine, or with",
both;,
and if innocent person is convicted and sentenced in consequence of such false,
"evidence, with death or imprisonment for more than seven years, the person who",
threatens shall be punished with the same punishment and sentence in the same,
manner and to the same extent such innocent person is punished and sentenced.],
COMMENTS.—,
"In a prosecution under sections 489B and 489C, all prosecution witnesses who were",
police officials turned hostile. Subsequently they filed affidavits stating that they were,
threatened by higher officers not to support their previous statements during,
"investigation. Court set aside the order of acquittal of the accused, ordered re-trial and",
directed to proceed under sections 193 and 195A.117.,
"1. S Palani Velayutham v District Collector Tirunvelveli TN, (2010) 1 SCC (Cr) 401 : (2009) 10 SCC",
664 [LNIND 2009 SC 1659] : (2009) 12 SCR 1215 [LNIND 2009 SC 1659] .,
"116. New section 195A Ins. by The Criminal Law (Amendment) Act, 2005 (Act No. 2 of 2006),",
"section 2 (w.e.f. 16 April 2006 vide Notfn. No. SO 523(E), dated 12 April 2006.",
"117. Court on Its Own Motion v State of Punjab, 2012 Cr LJ 2240 (PH).",
THE INDIAN PENAL CODE,
CHAPTER XI OF FALSE EVIDENCE AND OFFENCES AGAINST PUBLIC,
JUSTICE,
"Under the Indian Penal Code, 1860 offences relating to false evidence and offences",
against public justice are contained in Chapter XI. In relation to proceeding in any,
"Court, the offences enumerated are: giving false evidence or fabricating false evidence",
(sections 191–193); giving or fabricating false evidence with intent to procure,
conviction (sections 194 and 195); threatening any person to give false evidence,
(section 195A); using evidence known to be false (section 196); using as true a,
certificate known to be false (section 198); making a false statement in a declaration,
which is by law receivable as evidence (section 199); using as true any declaration,
"receivable as evidence, knowing it to be false (section 200); causing disappearance of",
"evidence of offence, or giving false information to screen offender (section 201);",
intentional omission to give information of offence by person bound to inform (section,
202); giving false information in respect of an offence (section 203); destruction of,
document or electronic record to prevent its production as evidence (section 204);,
false personation (section 205); fraudulent removal/concealment of property (section,
206); fraudulent claim to property (section 207); fraudulently suffering or obtaining,
decree for sum not due (section 208 and section 210); dishonestly making a false,
claim in Court (section 209); and intentional insult or interruption to public servant,
sitting in judicial proceedings (section 228). Section 195 of Code of Criminal Procedure,
provides that no Court shall take cognizance of any offence punishable under section,
172–188 (dealing with the contempt of the lawful authority of public servants) or,
"section 193–196, 199, 200, 205–211 and 228, when such offence is alleged to have",
"been committed in, or in relation to, any proceeding in any Court, except on the",
complaint in writing of that Court by such officer of the Court as that Court may,
"authorise in writing in this behalf, or of some other Court to which that Court is",
subordinate.1.,
[s 196] Using evidence known to be false.,
Whoever corruptly uses or attempts to use as true or genuine evidence any evidence,
"which he knows to be false or fabricated, shall be punished in the same manner as if",
he gave or fabricated false evidence.,
COMMENT.—,
This section applies to those who make use of such evidence as is made punishable by,
"sections 193, 194 and 195. It must be read with sections 191 and 192, and can only",
apply to the use of evidence which was false evidence within the meaning of section,
"191, or fabricated evidence within the definition laid down in section 192.118. Where an",
expert witness deposing on behalf of the defence claimed to be a diploma holder in,
"criminology from the Imperial College of Science and Technology, London and it was",
found that the said claim was totally false and the diploma produced by him was a,
"forged document, it was held he committed an offence in relation to Court proceedings",
"under sections 193 and 196, IPC, 1860, and as such a Court complaint under section",
"195 (1)(b)(i), Cr PC, 1973, was necessary to prosecute him.119.",
"The word 'corruptly' in this section means something different from ""dishonestly"" or",
"""fraudulently"". Although the user may not be dishonest or fraudulent, it may",
"nevertheless be corrupt, if the user is designed to corrupt or prevent the course of",
justice. A person who files rent receipts alleged to have been granted by one of the,
"landlords, who actually signs the receipts to support a false case of a tenancy under",
"the landlord, does not commit an offence under section 471, but is guilty of corruptly",
using as true or genuine evidence which he knows to be false within the meaning of,
this section.120.,
"1. S Palani Velayutham v District Collector Tirunvelveli TN, (2010) 1 SCC (Cr) 401 : (2009) 10 SCC",
664 [LNIND 2009 SC 1659] : (2009) 12 SCR 1215 [LNIND 2009 SC 1659] .,
"118. Lakshmaji, (1884) 7 Mad 289, 290.",
"119. Dr. S Dutt, 1966 Cr LJ 459 : AIR 1966 SC 595 [LNIND 1965 SC 196] .",
"120. Bibhuranjan Gupta, (1949) 2 Cal 440 .",
THE INDIAN PENAL CODE,
CHAPTER XI OF FALSE EVIDENCE AND OFFENCES AGAINST PUBLIC,
JUSTICE,
"Under the Indian Penal Code, 1860 offences relating to false evidence and offences",
against public justice are contained in Chapter XI. In relation to proceeding in any,
"Court, the offences enumerated are: giving false evidence or fabricating false evidence",
(sections 191–193); giving or fabricating false evidence with intent to procure,
conviction (sections 194 and 195); threatening any person to give false evidence,
(section 195A); using evidence known to be false (section 196); using as true a,
certificate known to be false (section 198); making a false statement in a declaration,
which is by law receivable as evidence (section 199); using as true any declaration,
"receivable as evidence, knowing it to be false (section 200); causing disappearance of",
"evidence of offence, or giving false information to screen offender (section 201);",
intentional omission to give information of offence by person bound to inform (section,
202); giving false information in respect of an offence (section 203); destruction of,
document or electronic record to prevent its production as evidence (section 204);,
false personation (section 205); fraudulent removal/concealment of property (section,
206); fraudulent claim to property (section 207); fraudulently suffering or obtaining,
decree for sum not due (section 208 and section 210); dishonestly making a false,
claim in Court (section 209); and intentional insult or interruption to public servant,
sitting in judicial proceedings (section 228). Section 195 of Code of Criminal Procedure,
provides that no Court shall take cognizance of any offence punishable under section,
172–188 (dealing with the contempt of the lawful authority of public servants) or,
"section 193–196, 199, 200, 205–211 and 228, when such offence is alleged to have",
"been committed in, or in relation to, any proceeding in any Court, except on the",
complaint in writing of that Court by such officer of the Court as that Court may,
"authorise in writing in this behalf, or of some other Court to which that Court is",
subordinate.1.,
[s 197] Issuing or signing false certificate.,
"Whoever issues or signs any certificate required by law to be given or signed, or",
"relating to any fact of which such certificate is by law admissible in evidence, knowing",
"or believing that such certificate is false in any material point, shall be punished in the",
same manner as if he gave false evidence.,
COMMENT.—,
Several laws require a certificate of some matter to be given. The offence of certifying,
"in any of these, knowing or believing that the certificate is false, is put on the same",
"footing as the offence of giving false evidence. The certificate must, however, be false",
in a material point. The issuing or signing must be by the officer or person authorized to,
certify.,
[s 197.1] Ingredients.—,
The section has two essentials:—,
1. Issuing or signing of a certificate—,
"(a) required by law to be given or signed, or",
(b) relating to a fact of which such certificate is by law admissible in,
evidence.,
2. Such certificate must have been issued or signed knowing or believing that it is,
false in any material point.,
"Before convicting a person for offence under section 197, IPC, 1860 the prosecution",
must prove the following facts:-—,
(i) that the document in question purports to be a certificate;,
"(ii) that such certificate is required by law to be given or signed, or that it related to",
some fact of which such certificate is by law admissible in evidence;,
(iii) that such certificate is false;,
(iv) that it is false in a material point;,
(v) that the accused issued or signed the same;,
"(vi) that he, when doing so, knew or believed, such certificate to be false.121.",
[s 197.2] Certificate.—,
"As per section 197, certificate contemplated therein is a certificate, which is required",
not to be given or signed for the use in the Court's administration of Justice. That,
"means, certificate is issued as required by some law and it has some reference to",
some statutory requirements. Information given by petitioner to Process Server is that,
he has not heard about the Noticee for the last two years and his whereabouts are not,
"known. That is not a certificate contemplated under any statute. Therefore, section 197",
"also will have no application.122. The expression ""by law admissible in evidence""",
means that the certificate should by some provision of law be admissible in evidence,
as such a certificate without further proof.123. A medical certificate is not such a,
certificate and the issue or use of a false medical certificate does not render a person,
liable under this section or section 198.124.,
"1. S Palani Velayutham v District Collector Tirunvelveli TN, (2010) 1 SCC (Cr) 401 : (2009) 10 SCC",
664 [LNIND 2009 SC 1659] : (2009) 12 SCR 1215 [LNIND 2009 SC 1659] .,
"121. Mangtu Ram v State of Rajasthan, 2003 Cr LJ 4733 (Raj).",
"122. D Jothi v KP Kandasamy, 2000 Cr LJ 292 (Mad).",
"123. Mahabir Thakur, (1916) 23 CLJ 423; Kumar Choudhari v State, (1936) 16 Pat 21; Prafulla",
"Kumar Khara, (1942) 1 Cal 573 . A caste certificate issued by an MLA to a student to enable him",
to get a pre-matric scholarship has been held to be not a certificate within the meaning of this,
"section. Haladhara Karji v Dileswar Subudhi, 1989 Cr LJ 629 (Ori), no caste was mentioned in the",
"certificate. Premlata v State of Rajasthan, 1998 Cr LJ 1430 (Raj), a statement would become a",
false certificate if the law requires the issue of such a certificate as a legal proof. In this case,
"the certificate was issued by the headmaster, though he was not authorised to do so. The",
candidate used the certificate for obtaining an appointment. A prima facie case under section,
198 was made out against the headmaster.,
"124. Prafulla Kumar Khara, Ibid.",
THE INDIAN PENAL CODE,
CHAPTER XI OF FALSE EVIDENCE AND OFFENCES AGAINST PUBLIC,
JUSTICE,
"Under the Indian Penal Code, 1860 offences relating to false evidence and offences",
against public justice are contained in Chapter XI. In relation to proceeding in any,
"Court, the offences enumerated are: giving false evidence or fabricating false evidence",
(sections 191–193); giving or fabricating false evidence with intent to procure,
conviction (sections 194 and 195); threatening any person to give false evidence,
(section 195A); using evidence known to be false (section 196); using as true a,
certificate known to be false (section 198); making a false statement in a declaration,
which is by law receivable as evidence (section 199); using as true any declaration,
"receivable as evidence, knowing it to be false (section 200); causing disappearance of",
"evidence of offence, or giving false information to screen offender (section 201);",
intentional omission to give information of offence by person bound to inform (section,
202); giving false information in respect of an offence (section 203); destruction of,
document or electronic record to prevent its production as evidence (section 204);,
false personation (section 205); fraudulent removal/concealment of property (section,
206); fraudulent claim to property (section 207); fraudulently suffering or obtaining,
decree for sum not due (section 208 and section 210); dishonestly making a false,
claim in Court (section 209); and intentional insult or interruption to public servant,
sitting in judicial proceedings (section 228). Section 195 of Code of Criminal Procedure,
provides that no Court shall take cognizance of any offence punishable under section,
172–188 (dealing with the contempt of the lawful authority of public servants) or,
"section 193–196, 199, 200, 205–211 and 228, when such offence is alleged to have",
"been committed in, or in relation to, any proceeding in any Court, except on the",
complaint in writing of that Court by such officer of the Court as that Court may,
"authorise in writing in this behalf, or of some other Court to which that Court is",
subordinate.1.,
[s 198] Using as true a certificate known to be false.,
"Whoever corruptly uses or attempts to use any such certificate as a true certificate,",
"knowing the same to be false in any material point, shall be punished in the same",
manner as if he gave false evidence.,
COMMENT.—,
This section is connected with section 197 just as section 196 is connected with,
"sections 193, 194 and 195.125. Appellant used the duplicate certificate with changes,",
as a true certificate knowing it to be false in material particular and thereby got,
"admission in Polytechnic. Therefore, there is no reason to interfere with the conviction.",
"However, looking to the nature of the offence and the fact that the appellant's past and",
present records have been good and the fact that he has already lost his career and is,
"now married, reduced the sentence to that already undergone.126.",
"1. S Palani Velayutham v District Collector Tirunvelveli TN, (2010) 1 SCC (Cr) 401 : (2009) 10 SCC",
664 [LNIND 2009 SC 1659] : (2009) 12 SCR 1215 [LNIND 2009 SC 1659] .,
"125. Premlata v State of Rajasthan, 1998 Cr LJ 1430 (Raj), for notes on the case see under",
section 197.,
"126. Tulsibhai Jivabhai Changani v State of Gujarat, (2001) 1 SCC 719 [LNIND 2000 SC 2333] :",
2001 Cr LJ 741 .,
THE INDIAN PENAL CODE,
CHAPTER XI OF FALSE EVIDENCE AND OFFENCES AGAINST PUBLIC,
JUSTICE,
"Under the Indian Penal Code, 1860 offences relating to false evidence and offences",
against public justice are contained in Chapter XI. In relation to proceeding in any,
"Court, the offences enumerated are: giving false evidence or fabricating false evidence",
(sections 191–193); giving or fabricating false evidence with intent to procure,
conviction (sections 194 and 195); threatening any person to give false evidence,
(section 195A); using evidence known to be false (section 196); using as true a,
certificate known to be false (section 198); making a false statement in a declaration,
which is by law receivable as evidence (section 199); using as true any declaration,
"receivable as evidence, knowing it to be false (section 200); causing disappearance of",
"evidence of offence, or giving false information to screen offender (section 201);",
intentional omission to give information of offence by person bound to inform (section,
202); giving false information in respect of an offence (section 203); destruction of,
document or electronic record to prevent its production as evidence (section 204);,
false personation (section 205); fraudulent removal/concealment of property (section,
206); fraudulent claim to property (section 207); fraudulently suffering or obtaining,
decree for sum not due (section 208 and section 210); dishonestly making a false,
claim in Court (section 209); and intentional insult or interruption to public servant,
sitting in judicial proceedings (section 228). Section 195 of Code of Criminal Procedure,
provides that no Court shall take cognizance of any offence punishable under section,
172–188 (dealing with the contempt of the lawful authority of public servants) or,
"section 193–196, 199, 200, 205–211 and 228, when such offence is alleged to have",
"been committed in, or in relation to, any proceeding in any Court, except on the",
complaint in writing of that Court by such officer of the Court as that Court may,
"authorise in writing in this behalf, or of some other Court to which that Court is",
subordinate.1.,
[s 199] False statement made in declaration which is by law receivable as,
evidence.,
"Whoever, in any declaration made or subscribed by him, which declaration any Court",
"of Justice, or any public servant or other person, is bound or authorised by law to",
"receive as evidence of any fact, makes any statement which is false, and which he",
"either knows or believes to be false or does not believe to be true, touching any point",
"material to the object for which the declaration is made or used, shall be punished in",
the same manner as if he gave false evidence.,
COMMENT.—,
This section makes the penalty attached to the offence of giving false evidence,
"applicable to declarations which, although not compellable, have, on being made, the",
same effect as the compulsory declarations referred to in sections 51 and 191.127.,
Voluntary declarations are thus placed on the same level as compulsory declarations.,
"The Supreme Court has said that the complaint for an offence under section 199, IPC,",
"1860, must make out the offence by singling out false averment in the complaint. Thus,",
where the allegation was that the accused had used a false affidavit before the Rent,
"Controller but the complaint did not set out a single averment from the said affidavit,",
"which is said to be false, it was held that the complaint was not maintainable.128.",
[s 199.1] Ingredients.—,
This section requires three essentials:—,
1. Making of a declaration that a Court or a public servant is bound or authorised by,
law to receive in evidence.,
2. Making of a false statement in such declaration knowing or believing it to be,
false.,
3. Such false statement must be touching any point material to the object for which,
the declaration is made or used.129. Section 199 provides punishment for making,
a false statement in a declaration that is by law receivable in evidence. Rival,
contentions set out in affidavits accepted or rejected by Courts with reference to,
"onus probandi do not furnish foundation for a charge under section 199, IPC,",
1860.130. A declaration before it could be made the foundation of charge under,
"section 199 of IPC, 1860, it is necessary that it must be admissible in evidence as",
proof of the fact declared under any law in consequence of which the Court is,
bound or authorised to receive it as such.131.,
"1. S Palani Velayutham v District Collector Tirunvelveli TN, (2010) 1 SCC (Cr) 401 : (2009) 10 SCC",
664 [LNIND 2009 SC 1659] : (2009) 12 SCR 1215 [LNIND 2009 SC 1659] .,
"127. A Vedamuttu, (1868) 4 MHC 185 ; Asgarali v State, (1943) Nag 547.",
"128. Chandrapal Singh, 1982 Cr LJ 1731 : AIR 1982 SC 1238 : (1982) 1 SCC 466 . Shiv Raman",
"Gaur v Madan Mohan Kanda, 1990 Cr LJ 1033 P&H.",
"129. Maharashtra State Electricity Distribution Co Ltd v Datar Switchgerar Ltd, (2010) 10 SCC 479",
[LNIND 2010 SC 979] : 2011 Cr LJ 8 L : (2010) 12 SCR 551 : (2011) 1 SCC (Cr) 68.,
"130. Chandrapal Singh v Maharaj Singh, AIR 1982 SC 1238 (1982) 1 SCC 466 .",
"131. D Jothi v KP Kandasamy, 2000 Cr LJ 292 (Mad).",
THE INDIAN PENAL CODE,
CHAPTER XI OF FALSE EVIDENCE AND OFFENCES AGAINST PUBLIC,
JUSTICE,
"Under the Indian Penal Code, 1860 offences relating to false evidence and offences",
against public justice are contained in Chapter XI. In relation to proceeding in any,
"Court, the offences enumerated are: giving false evidence or fabricating false evidence",
(sections 191–193); giving or fabricating false evidence with intent to procure,
conviction (sections 194 and 195); threatening any person to give false evidence,
(section 195A); using evidence known to be false (section 196); using as true a,
certificate known to be false (section 198); making a false statement in a declaration,
which is by law receivable as evidence (section 199); using as true any declaration,
"receivable as evidence, knowing it to be false (section 200); causing disappearance of",
"evidence of offence, or giving false information to screen offender (section 201);",
intentional omission to give information of offence by person bound to inform (section,
202); giving false information in respect of an offence (section 203); destruction of,
document or electronic record to prevent its production as evidence (section 204);,
false personation (section 205); fraudulent removal/concealment of property (section,
206); fraudulent claim to property (section 207); fraudulently suffering or obtaining,
decree for sum not due (section 208 and section 210); dishonestly making a false,
claim in Court (section 209); and intentional insult or interruption to public servant,
sitting in judicial proceedings (section 228). Section 195 of Code of Criminal Procedure,
provides that no Court shall take cognizance of any offence punishable under section,
172–188 (dealing with the contempt of the lawful authority of public servants) or,
"section 193–196, 199, 200, 205–211 and 228, when such offence is alleged to have",
"been committed in, or in relation to, any proceeding in any Court, except on the",
complaint in writing of that Court by such officer of the Court as that Court may,
"authorise in writing in this behalf, or of some other Court to which that Court is",
subordinate.1.,
[s 200] Using as true such declaration knowing it to be false.,
"Whoever corruptly uses or attempts to use as true any such declaration, knowing the",
"same to be false in any material point, shall be punished in the same manner as if he",
gave false evidence.,
Explanation.—A declaration which is inadmissible merely upon the ground of some,
"informality, is a declaration within the meaning of sections 199 to 200.",
COMMENT.—,
This section is connected with the last section just as section 198 is with section 197,
"or section 196 with sections 193, 194 and 195. The person who uses a false",
declaration is made liable as one who makes it.,
"1. S Palani Velayutham v District Collector Tirunvelveli TN, (2010) 1 SCC (Cr) 401 : (2009) 10 SCC",
664 [LNIND 2009 SC 1659] : (2009) 12 SCR 1215 [LNIND 2009 SC 1659] .,
THE INDIAN PENAL CODE,
CHAPTER XI OF FALSE EVIDENCE AND OFFENCES AGAINST PUBLIC,
JUSTICE,
"Under the Indian Penal Code, 1860 offences relating to false evidence and offences",
against public justice are contained in Chapter XI. In relation to proceeding in any,
"Court, the offences enumerated are: giving false evidence or fabricating false evidence",
(sections 191–193); giving or fabricating false evidence with intent to procure,
conviction (sections 194 and 195); threatening any person to give false evidence,
(section 195A); using evidence known to be false (section 196); using as true a,
certificate known to be false (section 198); making a false statement in a declaration,
which is by law receivable as evidence (section 199); using as true any declaration,
"receivable as evidence, knowing it to be false (section 200); causing disappearance of",
"evidence of offence, or giving false information to screen offender (section 201);",
intentional omission to give information of offence by person bound to inform (section,
202); giving false information in respect of an offence (section 203); destruction of,
document or electronic record to prevent its production as evidence (section 204);,
false personation (section 205); fraudulent removal/concealment of property (section,
206); fraudulent claim to property (section 207); fraudulently suffering or obtaining,
decree for sum not due (section 208 and section 210); dishonestly making a false,
claim in Court (section 209); and intentional insult or interruption to public servant,
sitting in judicial proceedings (section 228). Section 195 of Code of Criminal Procedure,
provides that no Court shall take cognizance of any offence punishable under section,
172–188 (dealing with the contempt of the lawful authority of public servants) or,
"section 193–196, 199, 200, 205–211 and 228, when such offence is alleged to have",
"been committed in, or in relation to, any proceeding in any Court, except on the",
complaint in writing of that Court by such officer of the Court as that Court may,
"authorise in writing in this behalf, or of some other Court to which that Court is",
subordinate.1.,
"[s 201] Causing disappearance of evidence of offence, or giving false",
information to screen offender—.,
"Whoever, knowing or having reason to believe that an offence has been committed,1",
"causes any evidence of the commission of that offence to disappear, with the",
"intention of screening the offender2 from legal punishment, or with that intention",
gives any information respecting the offence which he knows or believes to be false;,
if a capital offence;,
"shall, if the offence which he knows or believes to have been committed is",
"punishable with death, be punished with imprisonment of either description for a",
"term which may extend to seven years, and shall also be liable to fine;",
if punishable with imprisonment for life;,
"and if the offence is punishable with 132.[imprisonment for life], or with",
"imprisonment which may extend to ten years, shall be punished with",
"imprisonment of either description for a term which may extend to three years,",
and shall also be liable to fine;,
if punishable with less than ten years' imprisonment.,
and if the offence is punishable with imprisonment for any term not extending to,
"ten years, shall be punished with imprisonment of the description provided for the",
"offence, for a term which may extend to one-fourth part of the longest term of the",
"imprisonment provided for the offence, or with fine, or with both.",
ILLUSTRATION,
"A, knowing that B has murdered Z, assists B to hide the body with the intention of",
screening B from punishment. A is liable to imprisonment of either description for,
"seven years, and also to fine.",
COMMENT.—,
Object.—This section relates to the disappearance of any evidence of the commission,
of an offence and includes also the giving of false information with the intention of,
screening an offender. Sections 202 and 203 relate to the giving or omitting to give,
"such information, and section 204 to the destruction of documentary evidence.",
There are three groups of sections in the Code relating to the giving of information.,
"First, sections 118–120 deal with concealment of a design to commit an offence;",
"second sections 176, 177, 181 and 182 deal with omission to give information and with",
"the giving of false information; and, third, sections 201–203 deal with causing the",
disappearance of evidence.,
[s 201.1] Scope.—,
The Supreme Court has held that this section is not restricted to the case of a person,
who screens the actual offender; it can be applied even to a person guilty of the main,
"offence, though as a matter of practice a Court will not convict a person both of the",
main offence and under this section.133.,
"But, if the commission of the main offence is not brought home to the accused, then he",
can be convicted under this section.134. Where it is impossible to say definitely that a,
person has committed the principal offence he cannot escape conviction under this,
section merely because there are grounds for suspicion that he might be the principal,
culprit.135. A woman's husband and in-laws could not be convicted of murdering her,
because there was no evidence whatsoever. They were convicted under this section,
because they gave no reasonable explanation of the unnatural death and had also,
disposed of the body in suspicious circumstances (dead body found near railway,
track).136. The fact that the accused persons cannot be convicted for offence,
"punishable under section 302 IPC, 1860 does not extricate them from the offence",
"under section 201 IPC, 1860.137. In a case of bride burning, where the post-mortem",
"report was that death was due to throttling, burning her subsequently was held to be a",
clear proof of the fact that the evidence of strangulation was sought to be destroyed by,
the accused husband by pouring kerosene and setting her ablaze. The conviction of the,
"husband under sections 201, 302 and 498-A was held to be proper.138.",
A statement given by a person in the course of an investigation by the police cannot,
"amount to an offence under this section and section 203, even if it ultimately turns out",
"to be false.139. The allegation against the appellant was that, he had deliberately",
shielded the real offenders in the murder case and was accordingly liable for the,
"offence under section 201 of the IPC, 1860. Supreme Court acquitted the accused",
"holding that it is not possible on the evidence to ascertain, as to whether the appellant",
"was, in fact, guilty of the offence alleged against him.140.",
The Supreme Court has held that where the evidence showed that a person had died,
"and his body was found in a trunk and discovered in a well, and that the accused had",
taken part in the disposal of the body but there was no evidence to show the cause of,
"his death, or the manner or circumstances in which it came about, it was held that the",
"accused could not be convicted for an offence under this section.141. In other words,",
the mere secreting of a dead body without first proving that the corpse secreted was,
"the corpus delicti of a murder case is no offence under section 201, IPC, 1860.142.",
[s 201.2] Independent offence.—,
"A charge under section 201 of the IPC, 1860 can be independently laid and conviction",
"maintained also, in case the prosecution is able to establish that an offence had been",
"committed, the person charged with the offence had the knowledge or the reason to",
"believe that the offence had been committed, the said person has caused",
disappearance of evidence and such act of disappearance has been done with the,
intention of screening the offender from legal punishment. Mere suspicion is not,
"sufficient, it must be proved that the accused knew or had a reason to believe that the",
offence has been committed and yet he caused the evidence to disappear so as to,
screen the offender. The offender may be either himself or any other person.143. It has,
"been held that the offence under the section is of independent nature, though it cannot",
"be separated from the substance of the main offence. Accordingly, a conviction under",
the section can be recorded even though the commission of the main offence is not,
"established. The Court, however, pointed out that such cases are likely to be very small",
"in number. Applying this to the facts of the case, the Court held that the accused was",
guilty of offence under this section because he had buried the dead body of his wife in,
"his field and misguided the police of her disappearance, though, because of",
"decomposition, it could not be proved that he was responsible for her death.144.",
[s 201.3] Ingredients.—,
"To bring home a charge under section 201, IPC, the prosecution must prove:—",
(1) That an offence has been committed.,
(2) That the accused knew or had reason to believe the commission of such an,
offence.,
(3) That with such knowledge or belief he,
"(a) caused any evidence of the commission of that offence to disappear, or",
(b) gave any information relating to that offence which he then knew or,
believed to be false.,
(4) That he did so as aforesaid with the intention of screening the offender from,
legal punishment.,
"(5) If the charge be of an aggravated form, it must be further proved that the",
"offence in respect of which the accused did as in (3) and (4) supra, was",
punishable with death or imprisonment for life or imprisonment extending to ten,
years.145.,
1. 'Knowing or having reason to believe that an offence has been committed'.—It must,
"be proved that an offence, the evidence of which the accused is charged with causing",
"to disappear, has actually been committed,146. and that the accused knew, or had",
"information sufficient to lead him to believe, that the offence had been committed.147.",
Unless the prosecution was able to establish that the accused person knew or had,
reason to believe that an offence has been committed and had done something,
"causing the offence of commission of evidence to disappear, he cannot be",
convicted.148.,
"Where the accused committed rape on a seven-year-old minor girl at his studio, killed",
her and disposed of her dead body in a carton. The dead body of the deceased was,
"found in the carton, which the accused procured from witness. Conviction under",
"sections 302, 376 and 201 IPC, 1860 is maintained.149.",
The charge framed was for causing disappearance for evidence. The fact that,
concealment was the likely effect of the Act is not enough. There was no evidence to,
"attribute the knowledge of the death of the victim woman to the accused. Hence, the",
essential ingredient of the offence was missing.150.,
[s 201.4] Causing disappearance by preventing information from reaching,
police.—,
Where after raping a girl of 11 years the accused persons thrust a stick into her private,
part of which she died and they falsely told the mother of the victim that they had,
already reported the matter to the police and in the meantime there was disappearance,
"of evidence, they were held liable under this section.151. Where the Court has no case",
"that there is any intentional omission to give information by the accused to the police,",
the conviction under section 201 cannot be maintained only on the ground that no,
communication was given to the police and that the post-mortem had not been,
performed. It is also no case of the complainant that he had requested for post-,
mortem of the body and that intimation should have been given to the police before the,
"last rites were performed and there is also no charge under section 202 of the IPC,",
1860 of intentionally omitting to give information of the unnatural death to the,
police.152.,
2. 'Intention of screening offence of offender'.—The intention to screen the offender,
must be the primary and sole object of the accused. The fact that the concealment was,
likely to have that effect is not sufficient.153. The accused person killed his brother and,
his whole family in order to avoid partition of the joint family property. There was no,
evidence to show that his son had common intention with him or participated in the,
commission of the crime. But because he had seen his father commit multiple,
"murders, he tried to destroy the evidence by throwing away certain articles on two",
occasions from over a bridge. It seemed obvious that he had done that with the,
primary object of saving his father. He was convicted under this section.154.,
"Where a man shot down his wife with his pistol, his companion, who played no other",
"role, but concealed the authorship of the homicide, he was held guilty under this",
section.155. Where the co-accused persons told the investigating officer that the,
"deceased was not present in the house at the material time, it was held that this",
amounted to the offence of screening the offender.156.,
[s 201.5] Cases.—,
In the Jessica Lal murder Case157. the Supreme Court upheld the conviction of co-,
"accused under section 201 read with section 120-B IPC, 1860 considering the evidence",
"relating to their presence at the time of incident, removal of Tata Safari, his call details",
etc. as well as the evidence of PWs 30 and 101. In another case where the accused,
committed murder of his wife assaulting on her head with a chopper did cause the,
"evidence to disappear by setting fire to the dead body after pouring kerosene on her, it",
is found that the accused has committed an offence punishable under sections 302,
"and 201 of IPC, 1860.158. Where unnatural conduct of appellants to dispose of dead",
body of victim without having awaited for victim's husband who was already on his way,
"to home and the evidence shows that victim died under unnatural circumstances,",
"conviction under sections 302 and 201 IPC, 1860 is upheld.159. Where the accused",
husband strangulated his young wife to death and attempted to destroy evidence by,
"burning her dead body, the order of acquittal of the accused of the offence under",
sections 300 and 201 was reversed by the Apex Court.160.,
[s 201.6] Help rendered to conceal crime.—,
"Where a person through fear did not interpose to prevent the commission of a murder,",
"and afterwards helped the murderers in concealing the body, it was held that he was",
not guilty of abetment of murder but was guilty of an offence under this section.161. A,
person who assists the actual murderers in removing the corpse of their victim to a,
distance from the place where the murder was committed is prima facie guilty of an,
"offence under this section, until he can establish that he acted under compulsion.162.",
"Where it appeared from the statement of the accused that he took from the men who,",
"according to him committed the murder, a jewel which was unquestionably the",
"property of the deceased and he hid it and produced it later, it was held that the",
"accused, when he hid the jewel, had the intention of screening the offender, whoever he",
"was, from legal punishment and so was guilty of an offence under this section.163. The",
"death of a woman was caused on the first floor of the house and her mother-in-law, the",
"only other occupant of the house at the time of the occurrence, was residing on the",
"ground floor. The place of incident was intermeddled and bamboo pieces, rafters, and",
broken tiles were thrown over the dead body with a view to cause disappearance of,
evidence and to screen the offender. It was held that it was not possible without the,
complicity of the mother-in-law and hence though she could not be held guilty of,
"murder or abetting it, she was guilty of an offence under section 201.164.",
[s 201.7] Death in custody.—,
Where there was death of a person in the police custody while he was detained there,
"for interrogation and his dead body was not traced, however, the evidence of other",
"witnesses who were also beaten up and injured by the police, categorically established",
that the deceased became unconscious on receipt of injuries inflicted by the police and,
"died, it was held that an irresistible inference could be drawn that the police personnel",
"who caused the death, must also have caused the disappearance of the body.165.",
[s 201.8] Bride burning.—,
"In a bride burning case, the victim was murdered and thereafter her body was burnt to",
screen the offence. The guilt of the accused mother-in-law and that of the husband of,
the victim as particeps criminis was established beyond any shadow of doubt. The,
order of acquittal passed by the High Court from the offence of murder was reversed,
and set aside and that of the trial Court convicting both the accused under section 300,
was upheld. The mother-in-law was also convicted under section 201.166.,
[s 201.9] False explanation by wife of death of husband.—,
The accused wife attempted to explain away the death of her husband by saying that,
"he was attempting suicide and while she attempted to save him, he fell, down to death.",
A search of her house showed evidence of murder. The Court said that even if she had,
"not herself caused death, she was in know of things and attempted to explain away the",
incident by false explanations. The finding of guilt and her conviction under the section,
could not be interfered with.167.,
"[s 201.10] Kidnapping, murder and concealment.—",
"The charge was that of Kidnapping the girl, murdering her and then concealing the",
dead body. The police brought the accused to his house. He himself dug the place from,
where the body was exhumed. The accused admitted that the house belonged to him.,
The accused failed to explain how the body came to be buried in his house. The,
"Supreme Court confirmed his conviction under sections 300, 364 and 201.168.",
[s 201.11] Disposal of dead body by burning.—,
"The fact that the accused, after killing his two minor daughters, threw their dead bodies",
"in the river, which amounted to causing disappearance of the evidence of murder.169.",
[s 201.12] Failure of doctor to give information.—,
The failure on the part of the doctor to give information to police for six days after the,
admission of a burnt patient has been held not to constitute any offence under section,
201 by itself.170.,
[s 201.13] Threat to approver.—,
Oral threat or inducement given by the two lady lawyers to the approver not to give any,
"statement against the petitioner, cannot amount to commission of an offence under",
"section 201 IPC, 1860.171.",
"[s 201.14] Sanction under section 197 Cr PC, 1973.—",
In a case where the allegation was that HIV contaminated blood was supplied to the,
"Government Medical College Hospital and as a result, some patients who were given",
blood transfusion had tested HIV positive. Accused tampered with the entries made in,
"official register, tearing of pages from the different official registers and stowing them",
away in house. The acts cannot be related to the discharge of his official duties and,
"hence sanction for prosecution under section 197 Cr PC, 1973 not required.172.",
"[s 201.15] Acquittal for main offence, conviction under section 201.—",
One Palvinder Kaur was tried for offence under sections 302 and 201 Penal Code and,
"was convicted under section 302 IPC, 1860 but no verdict was recorded regarding the",
"charge under section 201 Penal Code. In appeal, High Court acquitted her of the charge",
"of murder, but convicted under section 201 of Penal Code. In the appeal before",
"Supreme Court, it was held that in order to establish the charge under section 201 IPC,",
1860 it is essential to prove that substantive offence has been committed and the,
accused knew or had reason to believe that such offence has been committed with,
requisite knowledge and intention of screening the offender from such legal,
"punishment, caused any evidence of the commission of that offence to disappear or",
gave any information respecting such offence or having such knowledge or believed to,
"be false. She is acquitted under section 201 IPC, 1860.173. Conviction for causing",
disappearance of evidence is possible even if nobody has been convicted for the main,
offence.174. Where the allegation was that the appellant killed his wife with a bamboo,
stick and buried her dead body in dry portion of pond located in his compound and,
there was no mark of injury found on the dead body; Court held that the possibility that,
deceased committed suicide by consuming poison cannot be ruled out. Though he was,
"acquitted under section 302, but was convicted under section 201 IPC, 1860.175.",
[s 201.16] Main accused died during pendency of trial.—,
"Where main accused died during pendency of trial, conviction of co-accused for",
causing disappearance of evidence is held not proper.176.,
[s 201.17] CASES.—,
"however, submitted with respect that having regard to the decisions of the Supreme",
"Court in the cases of Om Prakash,177. and Abhayanand,178. where it has been held that",
to constitute an attempt to commit an offence it is not essential that the last proximate,
"act must be done by the accused, in the instant case too the accused could perhaps be",
held guilty of an attempt to cause disappearance of the evidence of murder under,
"sections 201/511, IPC, 1860, as they, in fact, did all that lay within their power to do",
towards causing disappearance of the evidence of murder but the plot failed as the,
police intervened in the matter. Where the members of an unlawful assembly,
"indiscriminately killed five persons, dragged the dead bodies over a distance, beheaded",
"the victims and threw their limbs and bodies in the raging fire, they not only committed",
"an offence under section 201, IPC, 1860, but were also liable under sections 302/149,",
"IPC, 1860.179. If murder of an illegitimate child remains unproved, mere secreting of the",
"dead body of the child does not constitute an offence under section 201 IPC, 1860.180.",
"Where the complaint filed under section 201, IPC, 1860, besides mentioning the section",
"did not contain a single word as to how the evidence of the crime was destroyed, it was",
held that no cognizance could be taken on such a complaint as it did not even contain,
"allegations to constitute the offence under section 201, IPC, 1860.181. Mere removal of",
dead body from one place to another does not by itself amount to causing,
"disappearance of evidence under section 201, IPC, 1860.182. Where the dead bodies",
"were disposed of by some of the members of the unlawful assembly, all of them could",
"be convicted under section 201 read with section 149, IPC, 1860.183. Where the",
accused cremated the dead body of his wife who had committed suicide without,
"informing the police, the accused was held liable under section 201 in spite of he being",
acquitted under sections 304-B and 498-A.184.,
"1. S Palani Velayutham v District Collector Tirunvelveli TN, (2010) 1 SCC (Cr) 401 : (2009) 10 SCC",
664 [LNIND 2009 SC 1659] : (2009) 12 SCR 1215 [LNIND 2009 SC 1659] .,
"132. Subs. by Act 26 of 1955, section 117 and Sch., for ""transportation for life"" (w.e.f. 1-1-1956).",
"133. Kalawati, (1953) SCR 546 [LNIND 1953 SC 5] , at p 557. Followed in VL Tresa v State of",
"Kerala, AIR 2001 SC 953 [LNIND 2001 SC 364] , wife of the deceased concealing the real",
"circumstances of death. Ram Singh v State of HP, 1997 Cr LJ 1829 : 1997 SCC (Cr) 729, for",
notes see under section 120-B.,
"134. Nebti Mandal, (1939) 19 Pat 369.",
"135. Public Prosecutor v Venkatamma, (1932) 56 Mad 63.",
"136. Bakhora Chowdhary v State of Bihar, 1991 Cr LJ 91 (Pat). A father-in-law convicted for",
lodging report of suicide of his daughter-in-law when he knew it was murder. Brij Kishore v State,
"of UP, 1989 Cr LJ 616 (All).",
"137. Asar Mohammad v State of UP, AIR 2018 SC 5264 .",
"138. Deepak v State of Maharashtra, (1995) 2 Cr LJ 2219 (Bom).",
"139. Markose, (1962) 1 Cr LJ 610 .",
"140. Rathinam v State of TN, (2011) 3 SCC (Cr) 111 : (2011) 11 SCC 140 [LNIND 2009 SC 1873] :",
2010 (11) Scale 6 [LNINDORD 2009 SC 542],
"141. Palvinder Kaur, (1953) SCR 94 [LNIND 1952 SC 54] : 1953 Cr LJ 154 : AIR 1952 SC 354",
"[LNIND 1952 SC 54] . See Bhupendra Singh v State of UP, AIR 1991 SC 1083 [LNIND 1991 SC",
151] : 1991 Cr LJ 1337 : 1991 All LJ 379 : (1991) 2 SCC 750 [LNIND 1991 SC 151] . See also,
"State of UP v Kapil Deo, AIR 1991 SC 2257 [LNIND 1991 SC 397] : 1991 Cr LJ 3321 : 1991 Supp",
"(2) SCC 170 ; Suleman Rahiman v State of Maharashtra, AIR 1968 SC 829 [LNIND 1967 SC 354] :",
"1968 Cr LJ 1013 ; Roshan Lal v State of Punjab, AIR 1965 SC 1413 [LNIND 1964 SC 339] : 1965",
"(2) Cr LJ 426 ; Batapa Bada Seth v State of Orissa, 1987 Cr LJ 1976 (Ori); Sardar Singh v State",
"(Delhi Admn.), AIR 1993 SC 1696 [LNIND 1993 SC 153] : 1993 Cr LJ 1489 : 1993 Supp (2) SCC",
"393 . Ram Saran Mahto v State of Bihar, 1999 Cr LJ 4311 : AIR 1999 SC 3435 [LNIND 1999 SC",
"782] ; Gati Bahera v State of Orissa, 1997 Cr LJ 4331 (Ori).",
"142. Basanti v State of HP, AIR 1987 SC 1572 : 1987 Cr LJ 1869 : (1987) 3 SCC 227 . For other",
"examples of acquittals under benefit of doubt, see Kedar Nath v State of UP, AIR 1991 SC 1224 :",
"1991 Cr LJ 989 ; Kishore Chand v State of HP, AIR 1990 SC 2140 [LNIND 1990 SC 468] : 1990 Cr",
"LJ 2289 . Sudhir Mondal v State of WB, 1988 Cr LJ 569 (Cal); State of Rajasthan v Kamla, AIR",
1991 SC 967 : 1991 Cr LJ 602 .,
"143. Dinesh Kumar Kalidas Patel v State of Gujarat, AIR 2018 SC 951 .",
"144. Suresh v State of Karnataka, 2002 Cr LJ 3273 (Kant).",
"145. K Purnachandra Rao, 1975 Cr LJ 1671 : AIR 1975 SC 1925 [LNIND 1975 SC 316] . Sukhram",
"v State of Maharashtra, (2007) 7 SCC 502 [LNIND 2007 SC 969] : AIR 2007 SC 3050 [LNIND 2007",
"SC 969] , the Supreme Court restated the ingredients of the offence.",
"146. Abdul Kadir v State, (1880) 3 All 279 (FB).",
"147. Matuki Misser, (1885) 11 Cal 619 . Hanuman v State of Rajasthan, AIR 1994 SC 1307",
"[LNIND 1993 SC 992] : (1994) 2 Cr LJ 2092 : 1994 Supp (2) SCC 39 , where it was not proved",
that the dead body in question was that of the victim of murder or that the accused persons,
"were themselves the assailants or knew the assailants, the Supreme Court held that it was not",
safe to convict them only on the ground that they performed the ceremonies for cremation of,
"the body and took part in cremation. Arbind Singh v State of Bihar, AIR 1994 SC 1068 : 1994 Cr",
"LJ 1227 (SC), another case where the participants in a cremation were acquitted because they",
had no knowledge or reason to believe that the death was homicidal.,
"148. Dinesh Kumar Kalidas Patel v State of Gujarat, AIR 2018 SC 951 .",
"149. Samir Bhowmik v State of Tripura, 200 Cr LJ 3018 (Gau).",
"150. Vijaya v State of Maharashtra, (2003) 8 SCC 296 [LNIND 2003 SC 739] : AIR 2003 SC 3787",
[LNIND 2003 SC 739] .,
"151. Ghuraiyaa v State of MP, 1990 Cr LJ 1129 . Naba Kumar Das v State of Assam, 2002 Cr LJ",
1950 (Gau).,
"152. Dinesh Kumar Kalidas Patel v State of Gujarat, AIR 2018 SC 951 .",
"153. Jamnadas, (1963) 1 Cr LJ 433 ; Dr. Ravindra Kumar v State of Bihar, 1991 Cr LJ 3052 (Pat).",
"154. Prakash Dhawal Khairnar v State of Maharashtra, AIR 2002 SC 340 [LNIND 2001 SC 2841] at",
348.,
"155. Bhanu Pratap Tewari v State of UP, 2002 Cr LJ 1243 (All).",
"156. Vithal Thukaram More v State of Maharashtra, AIR 2002 SC 2715 [LNIND 2002 SC 449] ;",
"Hargovindas Devrajbhai Patel v State of Gujarat, 1998 Cr LJ 662 : AIR 1998 SC 370 [LNIND 1997",
"SC 1443] . In Rabin Mallick v State of West Bengal, 2011 Cr LJ 3801 (Cal) the body of the",
deceased boy was concealed in a place in the exclusive knowledge of accused. Conviction was,
"held proper but in Udaimanik Jamatia v The State of Tripura, 2011 Cr LJ 4167 (Gau) accused was",
acquitted though there was recovery of skeleton at the instance of accused.,
"157. Sidhartha Vashisht v State (NCT of Delhi), AIR 2010 SC 2352 [LNIND 2010 SC 367] : (2010)",
2 SCC (Cr) 1385.,
"158. Channaraja v State of Karnataka, 2012 Cr LJ 159 (Kar) Sk Waheed v State of Bihar, 2010 Cr",
LJ 1870 (Pat).,
"159. Diwan Singh v State of Uttaranchal, 2012 Cr LJ 3256 (Utt) But in Ramakanta Patel v State of",
"Orissa, 2011 Cr LJ 600 (Ori). See also Netrananda Naik v State of Orissa, 2011 Cr LJ 813 (Ori).",
"160. Mulakh Raj v Satish Kumar, AIR 1992 SC 1175 [LNIND 1992 SC 322] : 1992 Cr LJ 1529 .",
"Turuku Budha Karkaria v State of Orissa, 1994 Cr LJ 552 (Ori), killing a woman, removing her",
"ornaments, concealing her body in a bush in deep forest, killers guilty under the section,",
sentenced under section 302.,
"161. Goburdhun Bera, (1866) 6 WR (Cr) 80.",
"162. Autar, (1924) 47 All 306 ; Begu, (1925) 52 IA 191 , 6 Lah 226, 27 Bom LR 707, followed in",
"Mata Din v State, (1929) 5 Luck 255 . Raveendran v State of Kerala, 1994 Cr LJ 3562 (Ker), the",
"accused offered a helping hand to the main accused in disposing of the dead body, conviction",
under section 201.,
"163. Public Prosecutor v Munisami, (1941) Mad 503.",
"164. Vinod Bhalla v State of MP, 1992 Cr LJ 3527 (MP). See also Sankarapandian v State of TN,",
"1992 Cr LJ 3662 (Mad); Budhan Singh v State of Bihar, 2006 Cr LJ 2451 SC : AIR 2006 SC 1959",
[LNIND 2006 SC 300] .,
"165. Bhagwan Singh v State of Punjab, AIR 1992 SC 1689 [LNIND 1992 SC 396] : 1992 Cr LJ",
3144 .,
"166. Sarojini v State of MP, 1993 AIR SCW 817 : 1993 Cr LJ 1648 (SC). See also Bhuneshwar Pd",
"Chaurasia v Bhuneshwar Chaurasia, 2001 Cr LJ 3541 (Pat), a married woman died of poisoning,",
she was cremated hurriedly during the same night without informing police or her relatives.,
Those who participated in the activity were held guilty under the section; Shambir Gowada v,
"State of WB, 2000 Cr LJ 1602 (Cal); SK Usman v State of Maharashtra, 2000 Cr LJ 3301 (Bom).",
"167. VL Tresa v State of Kerala, AIR 2001 SC 953 [LNIND 2001 SC 364] .",
"168. Damodar v State of Karnataka, AIR 2000 SC 50 [LNIND 1999 SC 884] : 2000 Cr LJ 175 .",
"169. State of West Bengal v Rakesh Singh, (2016)1 CALLT 178 (HC) : 2015 Cr LJ 3847 .",
"170. KK Patnayak (Dr) v State of MP, 1999 Cr LJ 4911 (MP).",
"171. Sri Jayendra Saraswathy Swamigal v State of TN, AIR 2006 SC 6 [LNIND 2005 SC 815] :",
(2005) 8 SCC 771 [LNIND 2005 SC 815] : 2005 Cr LJ 4626 .,
"172. State of Maharashtra v Devahari Devasingh Pawar, AIR 2008 SC 1375 [LNIND 2008 SC 103] :",
(2008) 2 SCC 540 [LNIND 2008 SC 103] : 2008 AIR (SCW) 815 : 2008 Cr LJ 1593 .,
"173. Palvinder Kaur v State of Punjab, AIR 1952 SC 354 [LNIND 1952 SC 54] .",
"174. State of Karnataka v Madesha, (2007) 7 SCC 35 [LNIND 2007 SC 918] : AIR 2007 SC 2917",
"[LNIND 2007 SC 921] ; Sukhram v State of Maharashtra, (2007) 7 SCC 502 [LNIND 2007 SC 969] :",
"AIR 2007 SC 3050 [LNIND 2007 SC 969] , conviction under section 201 possible despite",
acquittal from the main offence.,
"175. Suman Rajowar v State of Assam, 2011 Cr LJ 2984 (Gau).",
"176. Keshave Kishore Sinha v State of Bihar, 2013 Cr LJ (NOC)7 (Pat).",
"177. Om Prakash, 1961 (2) Cr LJ 848 : AIR 1961 SC 1782 [LNIND 1961 SC 201] .",
"178. Abhayanand, 1961 (2) Cr LJ 822 .",
"179. State of UP v Mahendra Singh, 1975 Cr LJ 425 : AIR 1975 SC 455 [LNIND 1974 SC 320] .",
"180. Re Sumitra Sherpani, 1975 Cr LJ 169 (Gau), See also Mazahar Ali, 1976 Cr LJ 1629 (J&K).",
"181. Chandrapal Singh, 1982 Cr LJ 1731 : AIR 1982 SC 1238 : (1982) 1 SCC 466 .",
"182. Bhagaban Kirshani, 1985 Cr LJ 868 (Ori).",
"183. Ram Avtar, 1985 Cr LJ 1865 (SC) : AIR 1985 SC 880 [LNIND 1985 SC 4] .",
"184. Sunkara Suri Babu v State of AP, 1996 Cr LJ 1480 (AP).",
THE INDIAN PENAL CODE,
CHAPTER XI OF FALSE EVIDENCE AND OFFENCES AGAINST PUBLIC,
JUSTICE,
"Under the Indian Penal Code, 1860 offences relating to false evidence and offences",
against public justice are contained in Chapter XI. In relation to proceeding in any,
"Court, the offences enumerated are: giving false evidence or fabricating false evidence",
(sections 191–193); giving or fabricating false evidence with intent to procure,
conviction (sections 194 and 195); threatening any person to give false evidence,
(section 195A); using evidence known to be false (section 196); using as true a,
certificate known to be false (section 198); making a false statement in a declaration,
which is by law receivable as evidence (section 199); using as true any declaration,
"receivable as evidence, knowing it to be false (section 200); causing disappearance of",
"evidence of offence, or giving false information to screen offender (section 201);",
intentional omission to give information of offence by person bound to inform (section,
202); giving false information in respect of an offence (section 203); destruction of,
document or electronic record to prevent its production as evidence (section 204);,
false personation (section 205); fraudulent removal/concealment of property (section,
206); fraudulent claim to property (section 207); fraudulently suffering or obtaining,
decree for sum not due (section 208 and section 210); dishonestly making a false,
claim in Court (section 209); and intentional insult or interruption to public servant,
sitting in judicial proceedings (section 228). Section 195 of Code of Criminal Procedure,
provides that no Court shall take cognizance of any offence punishable under section,
172–188 (dealing with the contempt of the lawful authority of public servants) or,
"section 193–196, 199, 200, 205–211 and 228, when such offence is alleged to have",
"been committed in, or in relation to, any proceeding in any Court, except on the",
complaint in writing of that Court by such officer of the Court as that Court may,
"authorise in writing in this behalf, or of some other Court to which that Court is",
subordinate.1.,
[s 202] Intentional omission to give information of offence by person bound to,
inform.,
"Whoever, knowing or having reason to believe that an offence has been committed,",
intentionally omits to give any information respecting that offence which he is legally,
"bound to give, shall be punished with imprisonment of either description for a term",
"which may extend to six months, or with fine, or with both.",
COMMENT.—,
This section punishes the illegal omission to give information of those who are by,
"some law bound to give information, when such omission is intentional. It is similar to",
"section 176. See sections 39 and 40, Criminal Procedure Code, as to the persons",
"legally bound to give information. The word ""whoever"" in section 202, IPC, 1860, refers",
to persons other than the offender.185. Moreover to compel a criminal to incriminate,
himself would violate the spirit of Article 20(3) of the Constitution. Where the duty to,
"inform arises first and is not performed, the liability under this section would arise and",
it would be no defence that subsequent to the breach of duty there was involvement of,
the accused person in some crimes. The person who knew or had reason to believe,
that death was not natural was obliged under the section to give information.186.,
[s 202.1] Essential Ingredients.—,
"To sustain a conviction under the above quoted section 202 of the Penal Code, it is",
necessary for the prosecution to prove:,
(1) that the accused had knowledge or reason to believe that some offence had been,
"committed,",
(2) that the accused had intentionally omitted to give information respecting that,
offence and,
(3) that the accused was legally bound to give that information.187.,
332 The Indian Penal Code [Chapter XI,
[s 202.2] CASES.—,
The accused persons who raped a girl of 11 years and caused her death by thrusting a,
stick into her private part were under no obligation to file information of their own,
"criminality, they became liable under this section because by falsely telling the mother",
"of the victim that they had already reported the matter, they prevented her from lodging",
report with the police.188.,
This section has also no application where the principal offence has not been,
established.189.,
[s 202.3] Failure of doctor to give information.—,
"The allegation was the Accused, a dentist treated one of the injured assailants by",
suturing (stitching) his wound on the back after applying local anaesthesia pursuance,
of a previous plan that if and when any of the assailants got injured in the attack then,
immediate medical treatment would be given by the accused to the injured. The,
"accused stitched the back of an assailant, which is not the job of a dentist. Offence",
under section 201 prima facie made out.190. The failure on the part of the doctor to give,
information to the police (in this case information was given after a gap of six days),
has been held not to constitute any offence under section 202. It would have to be,
shown that doctors were duty bound to give such information that there was,
knowledge that in the burning of the lady some offence was involved. Even where this,
"would be so, it would be a separate offence. The doctors cannot be prosecuted jointly",
with the main accused.191.,
"1. S Palani Velayutham v District Collector Tirunvelveli TN, (2010) 1 SCC (Cr) 401 : (2009) 10 SCC",
664 [LNIND 2009 SC 1659] : (2009) 12 SCR 1215 [LNIND 2009 SC 1659] .,
"185. HS Rathod, 1979 Cr LJ 1025 : AIR 1979 SC 1232 [LNIND 1979 SC 43] .",
"186. Bhagwan Swarup v State of Rajasthan, AIR 1991 SC 2062 [LNIND 1991 SC 416] : 1991 Cr LJ",
3123 .,
"187. HS Rathod, (supra).",
"188. Ghuraiyaa v State of MP, 1990 Cr LJ 1129 . State of Rajasthan v Chhote Lal, 2012 Cr LJ",
1214 (SC) : 2011 (6) Scale 526 : 2012 AIR (SCW) 1159.,
"189. HS Rathod, supra.",
"190. State of Kerala v Raneef, (2011) 1 SCC 784 [LNIND 2011 SC 3] : AIR 2011 SC 340 [LNIND",
2011 SC 3] : 2011 Cr LJ 982 : (2011) 1 SCC (Cr) 409.,
"191. KK Patnayak (Dr) v State of MP, 1999 Cr LJ 4911 (MP).",
THE INDIAN PENAL CODE,
CHAPTER XI OF FALSE EVIDENCE AND OFFENCES AGAINST PUBLIC,
JUSTICE,
"Under the Indian Penal Code, 1860 offences relating to false evidence and offences",
against public justice are contained in Chapter XI. In relation to proceeding in any,
"Court, the offences enumerated are: giving false evidence or fabricating false evidence",
(sections 191–193); giving or fabricating false evidence with intent to procure,
conviction (sections 194 and 195); threatening any person to give false evidence,
(section 195A); using evidence known to be false (section 196); using as true a,
certificate known to be false (section 198); making a false statement in a declaration,
which is by law receivable as evidence (section 199); using as true any declaration,
"receivable as evidence, knowing it to be false (section 200); causing disappearance of",
"evidence of offence, or giving false information to screen offender (section 201);",
intentional omission to give information of offence by person bound to inform (section,
202); giving false information in respect of an offence (section 203); destruction of,
document or electronic record to prevent its production as evidence (section 204);,
false personation (section 205); fraudulent removal/concealment of property (section,
206); fraudulent claim to property (section 207); fraudulently suffering or obtaining,
decree for sum not due (section 208 and section 210); dishonestly making a false,
claim in Court (section 209); and intentional insult or interruption to public servant,
sitting in judicial proceedings (section 228). Section 195 of Code of Criminal Procedure,
provides that no Court shall take cognizance of any offence punishable under section,
172–188 (dealing with the contempt of the lawful authority of public servants) or,
"section 193–196, 199, 200, 205–211 and 228, when such offence is alleged to have",
"been committed in, or in relation to, any proceeding in any Court, except on the",
complaint in writing of that Court by such officer of the Court as that Court may,
"authorise in writing in this behalf, or of some other Court to which that Court is",
subordinate.1.,
[s 203] Giving false information respecting an offence committed.,
"Whoever knowing or having reason to believe that an offence has been committed,",
"gives any information respecting that offence which he knows or believes to be false,",
shall be punished with imprisonment of either description for a term which may,
"extend to two years, or with fine, or with both.",
"192.[Explanation.—In sections 201 and 202 and in this section the word ""offence"",",
"includes any act committed at any place out of 193.[India], which, if committed in 194.",
"[India], would be punishable under any of the following sections, namely, 302, 304,",
"382, 392, 393, 394, 395, 396, 397, 398, 399, 402, 435, 436, 449, 450, 457, 458, 459",
and 460.],
COMMENT.—,
The liability under this section attaches to anyone who gives false information whether,
he is legally bound to furnish such information or not. The object of the Legislature is,
to discourage and punish the giving of false information to the police concerning,
"offences which are actually committed and which the person charged with knows, or",
"has reason to believe, have been actually committed. The section contemplates",
information volunteered by some person.,
[s 203.1] Ingredients.—,
"To secure a conviction under section 203, IPC, 1860, the prosecution must prove,",
(1) that an offence has been committed;,
(2) that the accused knew or had reason to believe that such offence had been,
committed;,
(3) that he gave the information with respect to that offence;,
(4) that the information so given was false;,
(5) that when he gave such information he knew or believed it to be false.195.,
A complaint against the petitioners/accused for committing an offence under section,
"203 of the IPC, 1860 would lie only in a case where such accused had voluntarily given",
false information in respect of an offence committed knowing or believing it to be,
false. Statements given by them to police during investigation of the crime and,
"recorded under section 161 of the Code even if it is false, will not constitute an offence",
"under section 203 of the IPC, 1860.196. Where two nuns died due to fall of bricks lifted",
by hoist lift without protective measures at construction site. Deed of settlement,
purportedly made in the name of a fictitious person so as to save the culpability of the,
contractor. Offence made out.197. Where the accused were prosecuted for throttling a,
man to death and also for giving for the purpose of screening murder wrong,
"information that he died of excessive drinking, there being no direct evidence for the",
"offence of murder, the accused were acquitted of the offence of murder and their",
conviction under section 201 was modified into one under section 203 for giving false,
"information.198. Where petitioners were charged under section 203 and section 211,",
"IPC, 1860 by the police only to cover up their mishandling of the investigation and their",
"having falsely charged the petitioners of a crime which never took place, Court ordered",
compensation to the petitioners.199.,
"1. S Palani Velayutham v District Collector Tirunvelveli TN, (2010) 1 SCC (Cr) 401 : (2009) 10 SCC",
664 [LNIND 2009 SC 1659] : (2009) 12 SCR 1215 [LNIND 2009 SC 1659] .,
"192. Added by Act 3 of 1894, section 6.",
"193. The words ""British India"" have successively been subs. by the A.O. 1948, the A.O. 1950 and",
"Act 3 of 1951, section 3 and Sch. (w.e.f. 1 April 1951), to read as above.",
"194. The words ""British India"" have successively been subs. by the A.O. 1948, the A.O. 1950 and",
"Act 3 of 1951, section 3 and Sch (w.e.f. 1 April 1951), to read as above.",
"195. Bhagguram, 1982 Cr LJ 106 (MP).",
"196. Jiji joseph v Tomy Ignatius, 2013 Cr LJ 828 (Ker).",
"197. Kumar v State of Kerala, 2012 Cr LJ 3193 (Ker).",
"198. Nagireddi Siva v State of AP, 1992 Cr LJ 1339 (AP).",
"199. Peruboyina Satyanarayana v State of AP, 2006 Cr LJ 3027 (AP).",
THE INDIAN PENAL CODE,
CHAPTER XI OF FALSE EVIDENCE AND OFFENCES AGAINST PUBLIC,
JUSTICE,
"Under the Indian Penal Code, 1860 offences relating to false evidence and offences",
against public justice are contained in Chapter XI. In relation to proceeding in any,
"Court, the offences enumerated are: giving false evidence or fabricating false evidence",
(sections 191–193); giving or fabricating false evidence with intent to procure,
conviction (sections 194 and 195); threatening any person to give false evidence,
(section 195A); using evidence known to be false (section 196); using as true a,
certificate known to be false (section 198); making a false statement in a declaration,
which is by law receivable as evidence (section 199); using as true any declaration,
"receivable as evidence, knowing it to be false (section 200); causing disappearance of",
"evidence of offence, or giving false information to screen offender (section 201);",
intentional omission to give information of offence by person bound to inform (section,
202); giving false information in respect of an offence (section 203); destruction of,
document or electronic record to prevent its production as evidence (section 204);,
false personation (section 205); fraudulent removal/concealment of property (section,
206); fraudulent claim to property (section 207); fraudulently suffering or obtaining,
decree for sum not due (section 208 and section 210); dishonestly making a false,
claim in Court (section 209); and intentional insult or interruption to public servant,
sitting in judicial proceedings (section 228). Section 195 of Code of Criminal Procedure,
provides that no Court shall take cognizance of any offence punishable under section,
172–188 (dealing with the contempt of the lawful authority of public servants) or,
"section 193–196, 199, 200, 205–211 and 228, when such offence is alleged to have",
"been committed in, or in relation to, any proceeding in any Court, except on the",
complaint in writing of that Court by such officer of the Court as that Court may,
"authorise in writing in this behalf, or of some other Court to which that Court is",
subordinate.1.,
[s 204] Destruction of document to prevent its production as evidence.,
Whoever secretes or destroys any 200.[document or electronic record] which he may,
"be lawfully compelled to produce as evidence in a Court of Justice, or in any",
"proceeding lawfully held before a public servant, as such, or obliterates or renders",
illegible the whole or any part of such 201.[document or electronic record] with the,
intention of preventing the same from being produced or used as evidence before,
"such Court or public servant as aforesaid, or after he shall have been lawfully",
"summoned or required to produce the same for that purpose, shall be punished with",
"imprisonment of either description for a term which may extend to two years, or with",
"fine, or with both.",
COMMENT.—,
Section 175 deals with omission to produce or deliver up any document to any public,
"servant, this section deals with secretion or destruction of a document which a person",
may lawfully be compelled to produce in a Court. A person may secrete a document,
not only when the existence of the document is unknown to other persons and for the,
purpose of preventing the existence of the document coming to the knowledge of,
"anybody, but also when the existence of the document is known to others.202.",
The offence under this section is an aggravated form of the offence punishable under,
section 175. The section applies whether the proceeding is of a civil or criminal nature.,
[s 204.1] CASES.—Secreting document.—,
"Where the plaintiff in a suit referred to arbitration by consent, with a view to prevent a",
"witness from referring to an endorsement on a bond, snatched up the bond which was",
"lying beside the arbitrator, ran away, and refused to produce it, it was held that he had",
committed this offence.203.,
[s 204.2] Destroying document.—,
Where a police-officer took down at first the report of the commission of a dacoity,
"made to him, but subsequently destroyed that report and framed another and a false",
"report of the commission of a totally different offence, he was held guilty of this",
offence.204.,
"1. S Palani Velayutham v District Collector Tirunvelveli TN, (2010) 1 SCC (Cr) 401 : (2009) 10 SCC",
664 [LNIND 2009 SC 1659] : (2009) 12 SCR 1215 [LNIND 2009 SC 1659] .,
"200. Subs. by The Information Technology Act, 2000 (Act 21 of 2000), section 91 and First Sch,",
"w.e.f. 17 October 2000, for the word ""document"". The words ""electronic record"" have been",
defined in section 29A.,
"201. Subs. by The Information Technology Act, 2000 (Act 21 of 2000), section 91 and First Sch.,",
"w.e.f. 17 October 2000, for the word ""document"". The words ""electronic record"" have been",
defined in section 29A.,
"202. Susenbihari Ray, (1930) 58 Cal 1051 (SB).",
"203. Subramania Ghanapati, (1881) 3 Mad 261.",
"204. Muhammad Shah Khan, (1898) 20 All 307 . See also Jagdish v State of Rajasthan, 2002 Cr",
LJ 2171 .,
THE INDIAN PENAL CODE,
CHAPTER XI OF FALSE EVIDENCE AND OFFENCES AGAINST PUBLIC,
JUSTICE,
"Under the Indian Penal Code, 1860 offences relating to false evidence and offences",
against public justice are contained in Chapter XI. In relation to proceeding in any,
"Court, the offences enumerated are: giving false evidence or fabricating false evidence",
(sections 191–193); giving or fabricating false evidence with intent to procure,
conviction (sections 194 and 195); threatening any person to give false evidence,
(section 195A); using evidence known to be false (section 196); using as true a,
certificate known to be false (section 198); making a false statement in a declaration,
which is by law receivable as evidence (section 199); using as true any declaration,
"receivable as evidence, knowing it to be false (section 200); causing disappearance of",
"evidence of offence, or giving false information to screen offender (section 201);",
intentional omission to give information of offence by person bound to inform (section,
202); giving false information in respect of an offence (section 203); destruction of,
document or electronic record to prevent its production as evidence (section 204);,
false personation (section 205); fraudulent removal/concealment of property (section,
206); fraudulent claim to property (section 207); fraudulently suffering or obtaining,
decree for sum not due (section 208 and section 210); dishonestly making a false,
claim in Court (section 209); and intentional insult or interruption to public servant,
sitting in judicial proceedings (section 228). Section 195 of Code of Criminal Procedure,
provides that no Court shall take cognizance of any offence punishable under section,
172–188 (dealing with the contempt of the lawful authority of public servants) or,
"section 193–196, 199, 200, 205–211 and 228, when such offence is alleged to have",
"been committed in, or in relation to, any proceeding in any Court, except on the",
complaint in writing of that Court by such officer of the Court as that Court may,
"authorise in writing in this behalf, or of some other Court to which that Court is",
subordinate.1.,
[s 205] False personation for purpose of act or proceeding in suit or,
prosecution.,
"Whoever falsely personates another, and in such assumed character makes any",
"admission or statement, or confesses judgment, 1 or causes any process to be issued",
"or becomes bail or security, or does any other act in any suit or criminal prosecution,",
shall be punished with imprisonment of either description for a term which may,
"extend to three years, or with fine, or with both.",
COMMENT.—,
The offence punishable under this section is not merely cheating by using a fictitious,
"name, but by falsely assuming to be some other real person and in that character",
"making an admission, confessing judgment, or causing any process to be issued, etc.",
Any fraudulent gain or a benefit to the offender is not an essential element of this,
"offence.205. Where A personated B at a trial with B's consent, which was given to save",
"himself from the trouble of making an appearance in person before a Magistrate, it was",
"held that A was guilty of an offence under this section, and B was guilty of abetment of",
the offence.206. Act of impersonating another for purpose of giving evidence in Court,
"falls under section 205 IPC, 1860. Section 205, IPC, 1860 is squarely covered under",
section 195(b)(i) of the Code of Criminal Procedure and cognizance could be taken,
only by a Court on the complaint in writing of that Court in which such offence was,
committed.207.,
1. 'Confesses judgment'.—Allows a decree to be passed against himself.,
[s 205.1] Personation of imaginary person.—,
There is a conflict of opinion on the point whether a person commits an offence under,
this section by personating a purely imaginary person. The Calcutta High Court has,
held that a person by such personation commits an offence under this section.208. The,
"Madras High Court, dissenting from the above ruling, has held that it is not enough to",
show the assumption of a fictitious name; it must also appear that the assumed name,
was used as a means of falsely representing some other individual.209.,
"1. S Palani Velayutham v District Collector Tirunvelveli TN, (2010) 1 SCC (Cr) 401 : (2009) 10 SCC",
664 [LNIND 2009 SC 1659] : (2009) 12 SCR 1215 [LNIND 2009 SC 1659] .,
"205. Suppakon, (1863) 3 MHC 450 ; Kalya, (1903) 5 Bom LR 138 .",
"206. Suppakon, supra.",
"207. Jawahar Yadav v State of Chhattisgarh, 2006 Cr LJ 2078 (Chh).",
"208. Bhitto Kahar, (1862) 1 Ind Jur OS 128. See also K M Chitharanjan v P M Kunhunni, 2005 Cr",
LJ 4434 (Ker).,
"209. Kadar Ravuttan, (1868) 4 MHC 18 . By virtue of the provision in section 195 Cr PC, 1973,",
cognizance of an offence under this section is barred except on a complaint by the court where,
"the offence is committed. Sardul Singh v State of Haryana, 1992 Cr LJ 354 (P&H).",
THE INDIAN PENAL CODE,
CHAPTER XI OF FALSE EVIDENCE AND OFFENCES AGAINST PUBLIC,
JUSTICE,
"Under the Indian Penal Code, 1860 offences relating to false evidence and offences",
against public justice are contained in Chapter XI. In relation to proceeding in any,
"Court, the offences enumerated are: giving false evidence or fabricating false evidence",
(sections 191–193); giving or fabricating false evidence with intent to procure,
conviction (sections 194 and 195); threatening any person to give false evidence,
(section 195A); using evidence known to be false (section 196); using as true a,
certificate known to be false (section 198); making a false statement in a declaration,
which is by law receivable as evidence (section 199); using as true any declaration,
"receivable as evidence, knowing it to be false (section 200); causing disappearance of",
"evidence of offence, or giving false information to screen offender (section 201);",
intentional omission to give information of offence by person bound to inform (section,
202); giving false information in respect of an offence (section 203); destruction of,
document or electronic record to prevent its production as evidence (section 204);,
false personation (section 205); fraudulent removal/concealment of property (section,
206); fraudulent claim to property (section 207); fraudulently suffering or obtaining,
decree for sum not due (section 208 and section 210); dishonestly making a false,
claim in Court (section 209); and intentional insult or interruption to public servant,
sitting in judicial proceedings (section 228). Section 195 of Code of Criminal Procedure,
provides that no Court shall take cognizance of any offence punishable under section,
172–188 (dealing with the contempt of the lawful authority of public servants) or,
"section 193–196, 199, 200, 205–211 and 228, when such offence is alleged to have",
"been committed in, or in relation to, any proceeding in any Court, except on the",
complaint in writing of that Court by such officer of the Court as that Court may,
"authorise in writing in this behalf, or of some other Court to which that Court is",
subordinate.1.,
[s 206] Fraudulent removal or concealment of property to prevent its seizure as,
forfeited or in execution.,
"Whoever fraudulently removes, conceals, transfers or delivers to any person any",
"property or any interest therein, intending thereby to prevent that property or interest",
"therein from being taken as a forfeiture or in satisfaction of a fine, under a sentence",
"which has been pronounced, or which he knows to be likely to be pronounced, by a",
"Court of Justice or other competent authority, or from being taken in execution of a",
"decree or order which has been made, or which he knows to be likely to be made by a",
"Court of Justice in a civil suit, shall be punished with imprisonment of either",
"description for a term which may extend to two years, or with fine, or with both.",
COMMENT.—,
The concealment or removal of property contemplated in this section must be to,
prevent the property from being taken. Where the property is already taken and the,
"removal is subsequent, the offence under this section is not committed.210. The word",
'taken' has been used in the sense of 'seized' or 'taken possession of'.211. Where the,
"removal was open and without any element of secrecy or deception, it was held that",
"the removal was not ""fraudulent removal"" and hence this section could not apply.212.",
A creditor commits no fraud who anticipates other creditors and obtains a discharge of,
his debt by the assignment of any property which has not already been attached by,
another creditor.213.,
"Sections 206, 207 and 208 have the effect of rendering criminal all collusive modes by",
"which creditors, or lawful claimants may be defeated of their just remedies. Sections",
421–424 deal with fraudulent transfers.,
"Under this and the next section a civil suit must be actually pending before a Court, and",
not merely intended to be filed.214.,
"1. S Palani Velayutham v District Collector Tirunvelveli TN, (2010) 1 SCC (Cr) 401 : (2009) 10 SCC",
664 [LNIND 2009 SC 1659] : (2009) 12 SCR 1215 [LNIND 2009 SC 1659] .,
"210. Murli v State, (1888) 8 AWN 237.",
"211. Sahebrao Baburao, (1936) 38 Bom LR 1192 .",
"212. Kudumban v Dinakaran, 1962 Cr LJ 555 .",
"213. Appa Mallya, (1876) Unrep CrC 110.",
"214. MS Ponuswami, (1930) 8 Ran 268.",
THE INDIAN PENAL CODE,
CHAPTER XI OF FALSE EVIDENCE AND OFFENCES AGAINST PUBLIC,
JUSTICE,
"Under the Indian Penal Code, 1860 offences relating to false evidence and offences",
against public justice are contained in Chapter XI. In relation to proceeding in any,
"Court, the offences enumerated are: giving false evidence or fabricating false evidence",
(sections 191–193); giving or fabricating false evidence with intent to procure,
conviction (sections 194 and 195); threatening any person to give false evidence,
(section 195A); using evidence known to be false (section 196); using as true a,
certificate known to be false (section 198); making a false statement in a declaration,
which is by law receivable as evidence (section 199); using as true any declaration,
"receivable as evidence, knowing it to be false (section 200); causing disappearance of",
"evidence of offence, or giving false information to screen offender (section 201);",
intentional omission to give information of offence by person bound to inform (section,
202); giving false information in respect of an offence (section 203); destruction of,
document or electronic record to prevent its production as evidence (section 204);,
false personation (section 205); fraudulent removal/concealment of property (section,
206); fraudulent claim to property (section 207); fraudulently suffering or obtaining,
decree for sum not due (section 208 and section 210); dishonestly making a false,
claim in Court (section 209); and intentional insult or interruption to public servant,
sitting in judicial proceedings (section 228). Section 195 of Code of Criminal Procedure,
provides that no Court shall take cognizance of any offence punishable under section,
172–188 (dealing with the contempt of the lawful authority of public servants) or,
"section 193–196, 199, 200, 205–211 and 228, when such offence is alleged to have",
"been committed in, or in relation to, any proceeding in any Court, except on the",
complaint in writing of that Court by such officer of the Court as that Court may,
"authorise in writing in this behalf, or of some other Court to which that Court is",
subordinate.1.,
[s 207] Fraudulent claim to property to prevent its seizure as forfeited or in,
execution.,
"Whoever fraudulently accepts, receives or claims any property or any interest therein,",
"knowing that he has no right or rightful claim to such property or interest, or practices",
"any deception touching any right to any property or any interest therein, intending",
thereby to prevent that property or interest therein from being taken as a forfeiture or,
"in satisfaction of a fine, under a sentence which has been pronounced, or which he",
knows to be likely to be pronounced by a Court of Justice or other competent,
"authority, or from being taken in execution of a decree or order which has been made,",
"or which he knows to be likely to be made by a Court of Justice in a civil suit, shall be",
punished with imprisonment of either description for a term which may extend to two,
"years, or with fine, or with both.",
COMMENT.—,
"This section deals with the receiver, acceptor, or claimer of property who tries to",
prevent its seizure as a forfeiture. It punishes the accomplice just as the preceding,
section punishes the principal offender.,
"1. S Palani Velayutham v District Collector Tirunvelveli TN, (2010) 1 SCC (Cr) 401 : (2009) 10 SCC",
664 [LNIND 2009 SC 1659] : (2009) 12 SCR 1215 [LNIND 2009 SC 1659] .,
THE INDIAN PENAL CODE,
CHAPTER XI OF FALSE EVIDENCE AND OFFENCES AGAINST PUBLIC,
JUSTICE,
"Under the Indian Penal Code, 1860 offences relating to false evidence and offences",
against public justice are contained in Chapter XI. In relation to proceeding in any,
"Court, the offences enumerated are: giving false evidence or fabricating false evidence",
(sections 191–193); giving or fabricating false evidence with intent to procure,
conviction (sections 194 and 195); threatening any person to give false evidence,
(section 195A); using evidence known to be false (section 196); using as true a,
certificate known to be false (section 198); making a false statement in a declaration,
which is by law receivable as evidence (section 199); using as true any declaration,
"receivable as evidence, knowing it to be false (section 200); causing disappearance of",
"evidence of offence, or giving false information to screen offender (section 201);",
intentional omission to give information of offence by person bound to inform (section,
202); giving false information in respect of an offence (section 203); destruction of,
document or electronic record to prevent its production as evidence (section 204);,
false personation (section 205); fraudulent removal/concealment of property (section,
206); fraudulent claim to property (section 207); fraudulently suffering or obtaining,
decree for sum not due (section 208 and section 210); dishonestly making a false,
claim in Court (section 209); and intentional insult or interruption to public servant,
sitting in judicial proceedings (section 228). Section 195 of Code of Criminal Procedure,
provides that no Court shall take cognizance of any offence punishable under section,
172–188 (dealing with the contempt of the lawful authority of public servants) or,
"section 193–196, 199, 200, 205–211 and 228, when such offence is alleged to have",
"been committed in, or in relation to, any proceeding in any Court, except on the",
complaint in writing of that Court by such officer of the Court as that Court may,
"authorise in writing in this behalf, or of some other Court to which that Court is",
subordinate.1.,
[s 208] Fraudulently suffering decree for sum not due.,
Whoever fraudulently causes or suffers a decree or order to be passed against him at,
the suit of any person for a sum not due or for a larger sum than is due to such person,
"or for any property or interest in property to which such person is not entitled, or",
fraudulently causes or suffers a decree or order to be executed against him after it,
"has been satisfied, or for anything in respect of which it has been satisfied, shall be",
punished with imprisonment of either description for a term which may extend to two,
"years, or with fine, or with both.",
ILLUSTRATION,
"A institutes a suit against Z. Z, knowing that A is likely to obtain a decree against him,",
"fraudulently suffers a judgment to pass against him for a larger amount at the suit of B,",
"who has no just claim against him, in order that B, either on his own account or for the",
"benefit of Z, may share in the proceeds of any sale of Z's property which may be made",
under A's decree. Z has committed an offence under this section.,
COMMENT.—,
This section prevents the abuse of getting someone to file a collusive suit for recovery,
of the whole property and suffering a decree to be passed. It punishes persons making,
fictitious claims in order to secure the property of the defendant against person to,
whom he may become indebted in future.,
"1. S Palani Velayutham v District Collector Tirunvelveli TN, (2010) 1 SCC (Cr) 401 : (2009) 10 SCC",
664 [LNIND 2009 SC 1659] : (2009) 12 SCR 1215 [LNIND 2009 SC 1659] .,
THE INDIAN PENAL CODE,
CHAPTER XI OF FALSE EVIDENCE AND OFFENCES AGAINST PUBLIC,
JUSTICE,
"Under the Indian Penal Code, 1860 offences relating to false evidence and offences",
against public justice are contained in Chapter XI. In relation to proceeding in any,
"Court, the offences enumerated are: giving false evidence or fabricating false evidence",
(sections 191–193); giving or fabricating false evidence with intent to procure,
conviction (sections 194 and 195); threatening any person to give false evidence,
(section 195A); using evidence known to be false (section 196); using as true a,
certificate known to be false (section 198); making a false statement in a declaration,
which is by law receivable as evidence (section 199); using as true any declaration,
"receivable as evidence, knowing it to be false (section 200); causing disappearance of",
"evidence of offence, or giving false information to screen offender (section 201);",
intentional omission to give information of offence by person bound to inform (section,
202); giving false information in respect of an offence (section 203); destruction of,
document or electronic record to prevent its production as evidence (section 204);,
false personation (section 205); fraudulent removal/concealment of property (section,
206); fraudulent claim to property (section 207); fraudulently suffering or obtaining,
decree for sum not due (section 208 and section 210); dishonestly making a false,
claim in Court (section 209); and intentional insult or interruption to public servant,
sitting in judicial proceedings (section 228). Section 195 of Code of Criminal Procedure,
provides that no Court shall take cognizance of any offence punishable under section,
172–188 (dealing with the contempt of the lawful authority of public servants) or,
"section 193–196, 199, 200, 205–211 and 228, when such offence is alleged to have",
"been committed in, or in relation to, any proceeding in any Court, except on the",
complaint in writing of that Court by such officer of the Court as that Court may,
"authorise in writing in this behalf, or of some other Court to which that Court is",
subordinate.1.,
[s 209] Dishonestly making false claim in Court.,
"Whoever fraudulently or dishonestly, or with intent to injure or annoy any person,",
"makes in a Court of Justice any claim which he knows to be false, shall be punished",
"with imprisonment of either description for a term which may extend to two years, and",
shall also be liable to fine.,
COMMENT.—,
This section relates to false and fraudulent claims in a Court of Justice. It is much,
wider than the last section as it applies to a person who is acting fraudulently or,
"dishonestly. Not only must the claim be false to the knowledge of the person making it,",
"but the object of it must be to defraud, to cause wrongful loss or wrongful gain, to",
injure or to annoy. The section punishes the making of a false claim. The offence will,
be complete as soon as a suit is filed. If a person applies for the execution of a decree,
which has already been executed his act will be an offence under the next section.215.,
Where the Court took cognizance of a complaint against dishonestly making a false,
"claim in a Court without complaint of the concerned civil judge, the cognizance was",
"held to be not justified by reason of section 195(b)(ii), Cr PC, 1973 that covers such",
offences.216. The Court had no jurisdiction to take cognizance of offence under,
"sections 193/ 209/34 IPC, 1860 without having received any complaint under section",
195 from the concerned civil Court.217.,
"1. S Palani Velayutham v District Collector Tirunvelveli TN, (2010) 1 SCC (Cr) 401 : (2009) 10 SCC",
664 [LNIND 2009 SC 1659] : (2009) 12 SCR 1215 [LNIND 2009 SC 1659] .,
"215. Beegum Mahtoon, (1869) 12 WR (Cr) 37; Bismilla Khan v Rambhau, (1946) Nag 686.",
Cognizance of an offence under this section can be taken on a complaint by the court,
"concerned. See section 195 Cr PC, 1973. Sardul Singh v State of Haryana, 1992 Cr LJ 354 P&H.",
"216. Babu Lal v State, 1998 Cr LJ 3595 (Raj). See also Vinod Kumar v State, 1997 Cr LJ 2893",
(P&H).,
"217. Kusum Sandhu v Sh Ved Prakash Narang, 2009 Cr LJ 1078 (Chh); Babu Lal v State of",
"Rajasthan, 2009 Cr LJ 3595 (Raj).",
THE INDIAN PENAL CODE,
CHAPTER XI OF FALSE EVIDENCE AND OFFENCES AGAINST PUBLIC,
JUSTICE,
"Under the Indian Penal Code, 1860 offences relating to false evidence and offences",
against public justice are contained in Chapter XI. In relation to proceeding in any,
"Court, the offences enumerated are: giving false evidence or fabricating false evidence",
(sections 191–193); giving or fabricating false evidence with intent to procure,
conviction (sections 194 and 195); threatening any person to give false evidence,
(section 195A); using evidence known to be false (section 196); using as true a,
certificate known to be false (section 198); making a false statement in a declaration,
which is by law receivable as evidence (section 199); using as true any declaration,
"receivable as evidence, knowing it to be false (section 200); causing disappearance of",
"evidence of offence, or giving false information to screen offender (section 201);",
intentional omission to give information of offence by person bound to inform (section,
202); giving false information in respect of an offence (section 203); destruction of,
document or electronic record to prevent its production as evidence (section 204);,
false personation (section 205); fraudulent removal/concealment of property (section,
206); fraudulent claim to property (section 207); fraudulently suffering or obtaining,
decree for sum not due (section 208 and section 210); dishonestly making a false,
claim in Court (section 209); and intentional insult or interruption to public servant,
sitting in judicial proceedings (section 228). Section 195 of Code of Criminal Procedure,
provides that no Court shall take cognizance of any offence punishable under section,
172–188 (dealing with the contempt of the lawful authority of public servants) or,
"section 193–196, 199, 200, 205–211 and 228, when such offence is alleged to have",
"been committed in, or in relation to, any proceeding in any Court, except on the",
complaint in writing of that Court by such officer of the Court as that Court may,
"authorise in writing in this behalf, or of some other Court to which that Court is",
subordinate.1.,
[s 210] Fraudulently obtaining decree for sum not due.,
Whoever fraudulently obtains 1 a decree or order against any person for a sum not,
"due or for a larger sum than is due, or for any property or interest in property to which",
"he is not entitled, or fraudulently causes a decree or order to be executed against any",
person after it has been satisfied 2 or for anything in respect of which it has been,
"satisfied or fraudulently suffers or permits any such act to be done in his name, shall",
be punished with imprisonment of either description for a term which may extend to,
"two years, or with fine, or with both.",
COMMENT.—,
"This section is the counterpart to section 208 in respect of fraudulent decrees, just as",
section 207 is the counterpart to section 206 in respect of fraudulent transfers and,
"conveyances, the object of the Code being to strike both parties alike with the same",
"penalty. This section, taken together with section 208, will enable both plaintiff and",
defendant to a fraudulent or collusive suit or execution to be dealt with alike.,
1. 'Obtains'.—The offence is committed when the decree is fraudulently obtained and,
"the fact that the decree has not been set aside, though admissible to prove that there",
"was no fraud, is not a bar to a prosecution under the section.218.",
2. 'Causes a decree or order to be executed...after it has been satisfied'.—The mere,
presentation of an application for the execution of a decree already executed will not,
be sufficient. The accused must have caused the decree to be executed against the,
opposite party after it had been satisfied;219. or obtained an order for attachment for a,
sum already paid.220. Where the decree-holder does not want to proceed with the,
execution and gets his execution application dismissed he cannot be convicted of an,
offence under this section.221.,
The fact that the satisfaction is of such a nature that the Court executing the decree,
could not recognize it does not prevent the decree-holder from being convicted of an,
offence under this section.222.,
"1. S Palani Velayutham v District Collector Tirunvelveli TN, (2010) 1 SCC (Cr) 401 : (2009) 10 SCC",
664 [LNIND 2009 SC 1659] : (2009) 12 SCR 1215 [LNIND 2009 SC 1659] .,
"218. Molla Fuzla Karim, (1905) 33 Cal 193 .",
"219. Shama Charan Das v Kasi Naik, (1896) 23 Cal 971 .",
"220. Hikmat-ullah Khan v Sakina Begam, (1930) 53 All 416 .",
"221. Bismilla Khan v Rambhau, (1946) Nag 686.",
"222. Madhub Chunder Mozumdar v Novodeep Chunder Pandit, (1888) 16 Cal 126 ; Mutturaman",
"Chetti, (1881) 4 Mad 325; Pillala, (1885) 9 Mad 101.",
THE INDIAN PENAL CODE,
CHAPTER XI OF FALSE EVIDENCE AND OFFENCES AGAINST PUBLIC,
JUSTICE,
"Under the Indian Penal Code, 1860 offences relating to false evidence and offences",
against public justice are contained in Chapter XI. In relation to proceeding in any,
"Court, the offences enumerated are: giving false evidence or fabricating false evidence",
(sections 191–193); giving or fabricating false evidence with intent to procure,
conviction (sections 194 and 195); threatening any person to give false evidence,
(section 195A); using evidence known to be false (section 196); using as true a,
certificate known to be false (section 198); making a false statement in a declaration,
which is by law receivable as evidence (section 199); using as true any declaration,
"receivable as evidence, knowing it to be false (section 200); causing disappearance of",
"evidence of offence, or giving false information to screen offender (section 201);",
intentional omission to give information of offence by person bound to inform (section,
202); giving false information in respect of an offence (section 203); destruction of,
document or electronic record to prevent its production as evidence (section 204);,
false personation (section 205); fraudulent removal/concealment of property (section,
206); fraudulent claim to property (section 207); fraudulently suffering or obtaining,
decree for sum not due (section 208 and section 210); dishonestly making a false,
claim in Court (section 209); and intentional insult or interruption to public servant,
sitting in judicial proceedings (section 228). Section 195 of Code of Criminal Procedure,
provides that no Court shall take cognizance of any offence punishable under section,
172–188 (dealing with the contempt of the lawful authority of public servants) or,
"section 193–196, 199, 200, 205–211 and 228, when such offence is alleged to have",
"been committed in, or in relation to, any proceeding in any Court, except on the",
complaint in writing of that Court by such officer of the Court as that Court may,
"authorise in writing in this behalf, or of some other Court to which that Court is",
subordinate.1.,
[s 211] False charge of offence made with intent to injure.,
"Whoever, with intent to cause injury1 to any person, institutes or causes to be",
"instituted any criminal proceedings2 against that person, or falsely charges3 any",
"person with having committed an offence, knowing that there is no just or lawful",
"ground4 for such proceeding or charge against that person, shall be punished with",
"imprisonment of either description for a term which may extend to two years, or with",
"fine, or with both; and if such criminal proceeding be instituted5 on a false charge of",
"an offence punishable with death, 223.[imprisonment for life], or imprisonment for",
"seven years or upwards, shall be punishable with imprisonment of either description",
"for a term which may extend to seven years, and shall also be liable to fine.",
COMMENT.—,
This section includes two distinct offences:—,
(1) Actually instituting or causing to be instituted false criminal proceeding against,
a person.224.,
(2) Preferring a false charge against a person.,
"The first assumes the second, but the second may be committed where no criminal",
proceedings follow.,
The necessary ingredients to constitute either of the above offences are—,
"(1) the criminal proceedings must be instituted, or the false charge made with",
intent to injure;,
"(2) the criminal proceedings must be instituted, or the false charge must be made,",
"without just or lawful ground, in other words, it must be made maliciously.",
Difference is made in punishment according as the charge relates to offences,
punishable with imprisonment which may extend to seven years or more or otherwise.,
The mere making of a false charge is punishable under the first part of the section. If a,
"case gets no further than a police inquiry, it falls within that part. But under the second",
part there should be an actual institution of criminal proceedings on a false charge.225.,
Two conditions are necessary before the enhanced punishment provided in the second,
paragraph could be inflicted: (1) proceedings on the false charge should have been,
"actually instituted, and (2) the false charge must be in respect of an offence punishable",
"with death, imprisonment for life, or imprisonment for seven years or upwards.",
[s 211.1] Sections 182 and 211.—,
According to the Bombay High Court there is a clear distinction between a false charge,
"that falls under section 211 and false information given to the police, in which latter",
case the offence falls under section 182. A person prosecuting another under section,
182 need not prove malice and want of reasonable and probable cause except so far,
"as they are implied in the act of giving information known to be false, with the",
knowledge or likelihood that such information would lead a public servant to use his,
"power to the injury or annoyance of the complainant. In an inquiry under section 211,",
"on the other hand, proof of the absence of just and lawful ground for making the",
charge is an important element.226. If the information conveyed to the police amounts,
to the institution of criminal proceedings against a defined person or amounts to the,
"falsely charging of a defined person with an offence, then the person giving such",
"information is guilty of an offence under section 211. In such a case, section 211 is,",
"and section 182 is not, the appropriate section under which to frame a charge. Section",
"182, when read with section 211, must be understood as referring to cases where the",
information given to the public servant falls short of amounting to institution of,
criminal proceedings against a defined person and falls short of amounting to the,
falsely charging of a defined person with an offence as defined in the Penal Code.227.,
"The Calcutta, the Madras, the Allahabad and the Patna High Courts differ from this",
view of the Bombay High Court. The Calcutta High Court has ruled that a prosecution,
"for a false charge may be under section 182 or section 211, but if the false charge was",
"a serious one, the graver section 211 should be applied and the trial should be full and",
fair.228. Where a false charge is made to the police of a cognizable offence the offence,
committed by the person making the charge falls within the meaning of section 211,
and not section 182.229.,
"The Madras High Court has held that there is no error in a conviction under section 182,",
when the false charge made before the police was punishable under the final clause of,
section 211. The High Court may quash the conviction and sentence for the minor,
offence and direct a trial before a tribunal having jurisdiction for the graver offence.,
"Whether it will do so, or not, is a question, not of law, but of expediency on the facts of",
the particular case.230.,
"The Allahabad High Court had held that where a specific false charge is made, the",
"proper section, for proceedings to be adopted under section 211.231. Although it is",
difficult to see what case would arise under section 211 to which section 182 could not,
be applied yet section 182 would apply to a case that might not fall under section 211.,
The offence under section 182 is complete when false information is given to a public,
"servant by a person who believes it to be false, but who intends thereby to cause such",
public servant to institute criminal proceedings against a third person. The offence is,
complete although the public servant takes no steps towards the institution of such,
criminal proceedings. There is no restriction imposed by the Penal Code or by the,
Criminal Procedure Code upon the prosecution of an offence either under section 182,
or section 211. It appears that it has been left to the discretion of the Court to,
determine when and under what circumstances prosecution should be proceeded with,
under sections 182 and 211.232. The soundness of this view is doubted in subsequent,
cases.233.,
The Patna High Court has followed the view of the Calcutta High Court.234.,
The Lahore High Court has held that an offence under section 182 is included in the,
more serious offence under section 211 and a prosecution for a false charge may be,
"either under section 182 or section 211, though clearly if section 211 does apply and",
"the false charge is serious, the prosecution should be under section 211.235.",
1. 'Intent to cause injury'.—This is an essential part of the offence.236.,
2. 'Institutes or causes to be instituted any criminal proceedings'.—The word,
"""proceedings"" is used in this section in the ordinary sense of a prescribed mode of",
action for prosecuting a right or redressing a wrong. It is not used in the technical,
sense of a proceeding taken in a Court of law.237. Neither the proceedings before the,
"Disciplinary Committee of the Bar Council of India, is a criminal proceeding nor was the",
charge in the Disciplinary Proceedings in relation to an offence. Charge in the,
Disciplinary Proceedings before the Bar Council of India is only in respect of,
professional misconduct and not offence as such.238. Under this section 'instituting a,
criminal proceeding' may be treated as an offence in itself apart from 'falsely charging',
a person with having committed an offence. There are two modes in which a person,
aggrieved may seek to put the criminal law in motion: (1) by giving information to the,
"police (Criminal Procedure Code, section 154) and (2) by lodging a complaint before a",
"Magistrate (Criminal Procedure Code, sections 190, 200). A person who sets the",
criminal law in motion by making to the police a false charge in respect of a cognizable,
offence institutes criminal proceedings.239. But as the police have no power to take any,
"proceedings in non-cognizable cases without orders from a Magistrate, a false charge",
"of such offence, made to the police, is not an institution of criminal proceedings, but",
merely a false charge.240. The distinction between cognizable and non-cognizable,
"offences relates to the powers of the police only, and it will, therefore, seem that the",
"false charge of any offence, whether cognizable or non-cognizable, before a Magistrate",
is an institution of criminal proceedings.,
3. 'Falsely charges'.—The word 'charges' means something different from 'gives,
"information'. The true test seems to be, does the person who makes the statement that",
is alleged to constitute the 'charge' do so with the intention and object of setting the,
criminal law in motion against the person against whom the statement is directed?,
Such object and intention may be inferred from the language of the statement and the,
"circumstances in which it is made.241. The false charge must be made to a Court, or to",
an officer who has power to investigate and send it up for trial.242. Where the tribunal,
before whom the complaint is made is not competent to take any action direct or,
"indirect to punish the persons complained against, it cannot be said that the accused",
'charged' such persons with any offence or that his intention necessarily was that,
action should be taken against them.243. A false petition to the Superintendent of,
"Police, praying for the protection of the petitioners from the oppression of a Sub-",
"Inspector, which may be effected by some departmental action, does not amount to",
such a false charge.244. It is enough that a false charge is made though no prosecution,
is instituted thereon.245. Where a person who gives false information as to the,
commission of an offence merely states that he suspected a certain other person to be,
"the offender, it may be that he would not be liable under this section, but where it is",
clear that the informant's intention was not merely that the police should follow up a,
"clue but that they should put the alleged offender on trial, the informant is guilty of an",
offence under this section.246. The Calcutta High Court has held that the meaning of,
the expression 'falsely charges' is simply 'falsely accuses' and as the section stands,
there is no necessity of this false accusation being made in connection with a criminal,
proceeding.247.,
[s 211.2] Giving false Evidence: No false charge.—,
"The words ""falsely charges"" in this section cannot mean giving false evidence against",
"the accused as a prosecution witness during the course of a trial. To ""falsely charge""",
must refer to the criminal or initial accusation putting or seeking to put in motion the,
machinery of criminal investigation and not when seeking to prove the false charge by,
"making deposition in support of the charge framed in that trial. The words ""falsely",
"charges"" have to be read along with the expression ""institution of criminal",
"proceedings"". The false charge must, therefore, be made initially to a person in",
authority or to someone who is in a position to get the offender punished by,
appropriate proceedings. In other words it must be embodied either in a complaint or in,
a report of a cognizable offence to the police-officer or to an officer having authority,
over the person against whom the allegations are made. Giving false evidence in,
course of a trial amounts to an offence under sections 193 and 195 and not under,
"section 211, IPC, 1860.248.",
[s 211.3] Bare statement is not false charge.—,
A statement to the police of a suspicion that a particular person has committed an,
"offence is not a charge within the meaning of this section, nor does it amount to",
institution of criminal proceedings; and a conviction cannot be had on proof that the,
suspicion was unfounded.249. The accused made a report to the police that his buffalo,
had been poisoned and that he suspected two persons whom he named of having,
administered the poison. The police made an inquiry and reported that there was no,
case of poisoning and the charge was struck off. One of the persons then brought a,
complaint under this section against the accused. It was held that the report to the,
police did not amount to a charge of a criminal offence.250.,
"[s 211.4] Statement under section 162, Criminal Procedure Code.—",
"A statement under section 162, Criminal Procedure Code, in answer to questions put by",
"a police-officer making an investigation under section 161 of the Code, cannot be made",
the basis of a prosecution under this section.251. False identification in a Test,
Identification Parade is not falsely charging.252.,
4. 'Knowing that there is no just or lawful ground'.—This expression is the equivalent of,
"the English technical phrase ""without reasonable or probable cause,"" which means an",
"honest belief in the guilt of the accused based upon a full conviction, founded upon",
"reasonable grounds, of the existence of a state of circumstances, which, assuming",
"them to be true, would reasonably lead any ordinarily prudent and cautious man, placed",
"in the position of the accuser, to the conclusion that the person charged was probably",
guilty of the crime imputed. There must be:,
"First, an honest belief of the accuser in the guilt of the accused;",
"Second, such belief must be based on an honest conviction of the existence of the",
circumstances which led the accuser to that conclusion;,
"Third, such belief must be based upon reasonable grounds; that is, such grounds as",
would lead any fairly cautious man in the defendant's situation so to believe;,
"Fourth, the circumstances so believed and relied on by the accuser must be such as",
amount to reasonable ground for belief in the guilt of the accused.253.,
"A person may, in good faith, institute a charge that is subsequently found to be false, or",
"he may, with intent to cause injury to an enemy, institute criminal proceedings against",
"him, believing there are good grounds for them but in neither case has he committed",
an offence under this section. To constitute this offence it must be shown that the,
person instituting criminal proceedings knew there was no just or lawful ground for,
such proceedings.254.,
"In the absence of any special circumstances to rebut it, the judgment of one competent",
tribunal against the complainant affords very strong evidence of reasonable and,
probable cause.255.,
5. 'If such criminal proceeding be instituted'.—There is a divergence of views between,
"the Calcutta, the Madras and the Patna High Courts on the one hand, and the Allahabad",
"and the Lahore High Courts on the other, on the question whether the latter part of the",
section applies to such cases of complaints to the police which are disposed of,
without a formal magisterial inquiry. A Full Bench of the Calcutta High Court has held,
that the latter part would apply to such cases where the charge related to the more,
serious offence.256. This case is followed by the Madras257. and the Patna258. High,
"Courts. The test to apply is,—did the person who made the charge intend to set the",
criminal law in motion against the person on whom the charge is made.259.,
"The Allahabad High Court has, on the other hand, held that to constitute the offence",
"defined in the second paragraph of this section, it is necessary that criminal",
proceedings should be instituted. Where the offence committed does not go further,
"than the making of a false charge to the police, the making of such charge does not",
"amount to institution of criminal proceedings, and the offence committed will fall",
"within the first paragraph, notwithstanding that the offence so falsely charged may be",
one of those referred to in the second paragraph.260. The former Chief Court of the,
Punjab held likewise.261.,
[s 211.5] Complaint by Court: when.—,
"A complaint alleging commission of an offence punishable under section 211 IPC,",
"1860, ""in or in relation to any proceedings in any Court"", is maintainable only at the",
instance of that Court or by an officer of that Court authorized in writing for that,
"purpose or some other Court to which that Court is subordinate, is abundantly clear",
"from the language employed in the provision.262. When the offence under section 211,",
"IPC, 1860, is committed in relation to Court proceedings, cognizance without Court's",
"complaint is barred by section 195 (1)(b)(i), Cr PC, 1973.263. Since an order of a",
"Magistrate discharging an accused on submission of a police report under section 173,",
"Cr PC, 1973, is a judicial and not administrative order, a complaint by the Magistrate or",
"his superior Court under section 195(1)(b)(i), Cr PC, 1973, would be necessary to take",
"cognizance of an offence under section 211, IPC, 1860.264. Similarly, remand and bail",
proceedings too have been held to be Court proceedings and as such a complaint by,
"the Court would be necessary to take cognizance of the offence under section 211,",
"IPC, 1860.265. This view of the law has now been affirmed by the Supreme Court as",
well.266.,
[s 211.6] Proceedings in any Court.—,
There are three situations that are likely to emerge while examining the question,
"whether there is any proceedings in any Court, namely,",
"(a) there might not be any proceeding in any Court at all,",
(b) proceeding in a Court might actually be pending at the relevant time when,
"cognizance is sought to be taken of the offence punishable under section 211, IPC,",
1860 and,
(c) there might have been proceedings which had already been concluded though there,
might not be any proceedings pending in any Court when cognizance of offence under,
"section 211, IPC, 1860 is taken. It is only in second and third situation that section",
"195(1), Cr PC, 1973 would apply. The fact that proceedings had been concluded would",
not be material because section 195(1) does not require that proceedings in any Court,
must actually be pending at the time when the question of applying the bar arises if the,
"offence under section 211, IPC, 1860 is alleged to have been committed in relation to",
those proceedings.267. A complaint by the concerned Executive Magistrate could be,
"necessary under section 195(1)(a)(i), and there could be no sufficient reason for",
dispensing with the necessity for a complaint by him for prosecution of an offence,
"under section 211, IPC, 1860 committed in relation to a proceeding before him under",
"section 144, Cr PC, 1973.268.",
"[s 211.7] Sections 211 and 500 IPC, 1860.—",
"If we read sections 211 and 500 of IPC, 1860 together, we would find a clear",
distinction. Section 211 imposes a punishment in case of a false charge or offence,
"made with the intent to injure someone before any Court of law, whereas section 500",
provides for punishment in case of a defamation of a person by any one. Defamation,
"has been defined under section 499 which provides inter alia whoever, by words either",
"spoken or intended to be read, or by signs or by visible representations, makes or",
"publishes any imputation concerning any person intending to harm, or knowing or",
"having reason to believe that such imputation will harm, the reputation of such person,",
"is said, except in the cases hereinafter excepted, to defame that person. Making a false",
complaint before a Court of law would amount to committing fraud on Court. It is for,
the Court to proceed against the erring person. The provision has been made to,
preserve the sanctity of the Court. Section 500 gives right to sue to a person who is,
defamed within the meaning of section 499 by the conduct of the accused. These two,
provisions are totally distinct and can be tried in absence of each other.269.,
[s 211.8] Civil remedy.—,
"A person aggrieved by a false charge may, if he chooses, sue in a civil Court for",
"damages for malicious prosecution, instead of taking criminal proceedings under this",
section.,
[s 211.9] CASES.—,
"It was alleged that petitioner's son was kidnapped by opposite party, petitioner's son",
"himself appeared and made his statement that he was not kidnapped, rather he had",
himself voluntarily gone to marry with a girl. The girl also had appeared and made her,
statement that petitioner's son and herself have married and for that reason the,
"petitioner threatening to kill them. It was held that the order, taking cognizance of",
"offences against petitioner for falsely implicating the opposite party, is proper.270.",
[s 211.10] False charge should be made to Court or officer having jurisdiction,
to investigate.—,
A woman appeared before the Station Staff Officer and accused a non-commissioned,
"officer of rape, and, after a military inquiry, the military authority held that the charge",
was false and directed the complainant to be prosecuted under this section. The,
"conviction was set aside, as the false charge was not made to a Court having",
"jurisdiction.271. Where the accused laid a charge of mischief by fire at a police station,",
"which was reported to be false, and the District Magistrate, upon the receipt of a report",
"to the same effect from the Deputy Magistrate, to whom he had sent the case for a",
"judicial inquiry, passed an order to prosecute the accused, it was held that the order of",
"the District Magistrate was bad, as the matter of the false charge had not come before",
him in the course of judicial proceedings.272.,
Where a letter falsely charging a person with having committed an offence was written,
"and posted at Kumbakonam and was addressed to the Inspector-General of Police,",
"Madras, an offence under this section could be said to be completed only when the",
"letter reached the destination, i.e., the office of the Inspector-General of Police, Madras.",
"The communication of the false accusation was, in fact, the laying of the false charge",
"and, unless the matter was actually communicated to the superior officer, it could not",
"be said that a false charge had been made. So, the Magistrate at Kumbakonam would",
have no territorial jurisdiction to try the case.273.,
"1. S Palani Velayutham v District Collector Tirunvelveli TN, (2010) 1 SCC (Cr) 401 : (2009) 10 SCC",
664 [LNIND 2009 SC 1659] : (2009) 12 SCR 1215 [LNIND 2009 SC 1659] .,
"223. Subs. by Act 26 of 1955, section 117 and Sch., for ""transportation for life"" (w.e.f. 1-1-1956).",
"224. Jitendra v State of UP, 2000 Cr LJ 3087 (All), the accused was falsely implicated and",
convicted for offences under IPC. The court directed the authorities to register case against the,
"prosecutrix and take necessary action; AN Gupta v State of Rajasthan, 1999 Cr LJ 4932 (Raj), FIR",
"lodged containing false and baseless allegations, intending prima facie to injure the reputation",
"of the complainant. Falsity was proved by the statements of the accused under section 313, Cr",
"PC, 1973. The order acquitting the accused under sections 500 and 211 was set aside; Rubin",
"Roy Chaudhury v State of WB, 1998 Cr LJ 1699 (Cal), order taking cognizance of offence was",
held to be proper. The office bearers of an Institute hatched a plot to bring about expulsion of,
"the complainant and his wife, prima facie on false basis.",
"225. Karsan Jesang, (1941) 43 Bom LR 858 , (1942) Bom 22.",
"226. Per Ranade, J, in Raghavendra v Kashinathbhat, (1894) 19 Bom 717, 725.",
"227. Apaya, (1913) 15 Bom LR 574 [LNIND 1913 BOM 44] .",
"228. Sarada Prosad Chatterjee, (1904) 32 Cal 180 , followed in Gati Mandal, (1905) 4 CLJ 88.",
"229. Giridhari Naik, (1901) 5 Cal WN 727.",
230. (1872) 7 MHC (Appx) 5.,
"231. Jugal Kishore, (1886) 8 All 382 .",
"232. Per Edge, CJ in Raghu Tiwari, (1893) 15 All 336 , 338.",
"233. Kashi Ram, (1924) 22 ALJR 829; Samokhan, (1924) 26 Cr LJ 594 .",
"234. Daroga Gope, (1925) 5 Pat 33.",
"235. Nota Ram, (1941) 23 Lah 675. See Muthra v Roora, (1870) PR No. 16 of 1870; Todur Mal v",
"Mussammat Bholi, (1882) PR No. 14 of 1882.",
"236. Gopal Dhanuk, (1881) 7 Cal 96 .",
"237. Albert, AIR 1966 Kerala 11 [LNIND 1965 KER 172] (FB).",
"238. Rajkumar Malpani v Akella Sreenivasa Rao, 2011 Cr LJ 2997 (AP).",
"239. Jijibhai Govind, (1896) 22 Bom. 596; Karim Buksh, (1888) 17 Cal 574 , FB; Parahu, (1883) 5",
"All 598 ; Nanjunda Rau, (1896) 20 Mad 79; Mst Binia, (1937) Nag 338; Albert, AIR 1966 Kerala 11",
[LNIND 1965 KER 172] (FB).,
"240. Karim Buksh, supra.",
"241. Rayan Kutti, (1903) 26 Mad 640, 643; Nihala, (1872) PR No. 14 of 1872.",
"242. Jamoona, (1881) 6 Cal 620 ; Sivan Chetti, (1909) 32 Mad 258, overruling Ramana Gowd,",
"(1908) 31 Mad 506; Mathura Prasad, (1917) 39 All 715 .",
"243. Bhawani Sahai, (1932) 13 Lah 568.",
"244. Abdul Hakim Khan Chaudhuri, (1931) 59 Cal 334 .",
"245. Abdul Hasan, (1877) 1 All 497 ; Chenna Malli Gowda, (1903) 27 Mad 129.",
"246. Parmeshwar Lal, (1925) 4 Pat 472.",
"247. Dasarathi Mondal v Hari Das, AIR 1959 Cal 293 [LNIND 1959 CAL 1] . On appeal sub. nom.",
"Hari Das, AIR 1964 SC 1773 [LNIND 1964 SC 84] : 1964 (2) Cr LJ 737 .",
"248. Santokh Singh, 1973 Cr LJ 1176 : AIR 1976 SC 1489 .",
"249. Bramanund Bhuttacharjee, (1881) 8 CLR 233 ; Karigowda, (1894) 19 Bom 51; Ganpatram v",
"Rambai, (1950) Nag 208.",
"250. Abdul Ghafur, (1924) 6 Lah 28.",
"251. Ramana Gowd, (1908) 31 Mad 506.",
252. Ibid.,
"253. Hicks v Faulkner, (1878) 8 QBD 167 , 171; Kapoor v Kairon, 1966 Cr LJ 115 .",
"254. Chidda, (1871) 3 NWP 327; Murad, (1893) PR No. 29 of 1894.",
"255. Parimi Bapirazu v Venkayya, (1866) 3 MHC 238 .",
"256. Karim Buksh, (1888) 17 Cal 574 (FB).",
"257. Nanjunda Rau, (1896) 20 Mad 79.",
"258. Parmeshwar Lal, (1925) 4 Pat 472.",
"259. Mallappa Reddi, (1903) 27 Mad 127, 128.",
"260. Bisheshar, (1893) 16 All 124 ; Pitam Rai v State, (1882) 5 All 215 .",
"261. Sultan, (1887) PR No. 3 of 1888; Khan Bahadar, (1888) PR No. 26 of 1888; Humayun, (1907)",
PR No. 26 of 1908.,
"262. Abdul Rehman v K M Anees-Ul-Haq, 2012 Cr LJ 1060 (SC) : 2011 (10)SCC 696 [LNIND 2011",
"SC 1156] . See also Harish Chandra Pathak v Anil Vats, 2008 Cr LJ 2965 (All).",
"263. M Devasenapathi, 1984 Cr LJ NOC 34 (Mad); K Ramakrishnan, 1986 Cr LJ 392 (Ker).",
"264. Narayan, 1972 Cr LJ 1446 (Del—FB).",
"265. PC Gupta v State, 1974 Cr LJ 945 (All-FB).",
"266. Kamalapati, 1979 Cr LJ 679 : AIR 1979 SC 777 [LNIND 1978 SC 383] .",
"267. Geetika Batra v OP Batra, 2009 Cr LJ 2687 (Del). A private complaint cannot be filed for an",
"offence under section 211-See Subhash Ramchandra Durge v Deepak Annasaheb Gat, 2000 Cr LJ",
4774 (Bom).,
"268. Rabin Roy Choudhury v State, 1997 Cr LJ 1699 (Cal); Dongari Venkatram v M Tirpathanna S I",
"of Police, Kodad 2006 Cr LJ 2697 (AP).",
"269. Bir Chandra Das v Anil Kumar Sarkar, 2011 Cr LJ 3422 (Cal).",
"270. Chintamani Paul (Kumhar) v State of Jharkhand, 2009 Cr LJ 2283 (Jhar).",
"271. Jamoona, (1881) 6 Cal 620 ; See also Santokh Singh, 1973 Cr LJ 1176 : AIR 1973 SC 2190",
[LNIND 1973 SC 160] .,
"272. Haibat Khan, (1905) 33 Cal 30 .",
"273. Sivaprakasam Pillai, (1948) Mad 893.",
THE INDIAN PENAL CODE,
CHAPTER XI OF FALSE EVIDENCE AND OFFENCES AGAINST PUBLIC,
JUSTICE,
"Under the Indian Penal Code, 1860 offences relating to false evidence and offences",
against public justice are contained in Chapter XI. In relation to proceeding in any,
"Court, the offences enumerated are: giving false evidence or fabricating false evidence",
(sections 191–193); giving or fabricating false evidence with intent to procure,
conviction (sections 194 and 195); threatening any person to give false evidence,
(section 195A); using evidence known to be false (section 196); using as true a,
certificate known to be false (section 198); making a false statement in a declaration,
which is by law receivable as evidence (section 199); using as true any declaration,
"receivable as evidence, knowing it to be false (section 200); causing disappearance of",
"evidence of offence, or giving false information to screen offender (section 201);",
intentional omission to give information of offence by person bound to inform (section,
202); giving false information in respect of an offence (section 203); destruction of,
document or electronic record to prevent its production as evidence (section 204);,
false personation (section 205); fraudulent removal/concealment of property (section,
206); fraudulent claim to property (section 207); fraudulently suffering or obtaining,
decree for sum not due (section 208 and section 210); dishonestly making a false,
claim in Court (section 209); and intentional insult or interruption to public servant,
sitting in judicial proceedings (section 228). Section 195 of Code of Criminal Procedure,
provides that no Court shall take cognizance of any offence punishable under section,
172–188 (dealing with the contempt of the lawful authority of public servants) or,
"section 193–196, 199, 200, 205–211 and 228, when such offence is alleged to have",
"been committed in, or in relation to, any proceeding in any Court, except on the",
complaint in writing of that Court by such officer of the Court as that Court may,
"authorise in writing in this behalf, or of some other Court to which that Court is",
subordinate.1.,
[s 212] Harbouring offender—.,
"Whenever an offence has been committed, whoever harbours or conceals a person",
"whom he knows or has reason to believe to be the offender, with the intention of",
screening him from legal punishment;,
If a Capital Offence;,
"shall, if the offence is punishable with death, be punished with imprisonment of",
"either description for a term which may extend to five years, and shall also be",
liable to fine;,
"if punishable with imprisonment for life, or with imprisonment.",
"and if the offence is punishable with 274.[imprisonment for life], or with",
"imprisonment which may extend to ten years, shall be punished with",
"imprisonment of either description for a term which may extend to three years,",
and shall also be liable to fine;,
"and if the offence is punishable with imprisonment which may extend to one year,",
"and not to ten years, shall be punished with imprisonment of the description",
provided for the offence for a term which may extend to one-fourth part of the,
"longest term of imprisonment provided for the offence, or with fine, or with both.",
"275.[""Offence"" in this section includes any act committed at any place out of 276.",
"[India], which, if committed in 277.[India], would be punishable under any of the",
"following sections, namely, 302, 304, 382, 392, 393, 394, 395, 396, 397, 398, 399,",
"402, 435, 436, 449, 450, 457, 458, 459 and 460 and every such act shall, for the",
"purposes of this section, be deemed to be punishable as if the accused person",
had been guilty of it in 278.[India].],
Exception.—This provision shall not extend to any case in which the harbour or,
concealment is by the husband or wife of the offender.,
ILLUSTRATION,
"A, knowing that B has committed dacoity, knowingly conceals B in order to screen him",
"from legal punishment. Here, as B is liable to 279.[imprisonment for life], A is liable to",
"imprisonment of either description for a term not exceeding three years, and is also",
liable to fine.,
COMMENT.—,
"Ingredients.—(i) the offence must have been committed, i.e., completed and there must",
be an 'offender';,
(ii) there must be harbouring or concealment of a person by the accused;,
(iii) the accused knows or has reason to believe that such harboured or concealed,
person is the offender;,
(iv) there must be an intention on the part of the accused to screen the offender from,
legal punishment.280.,
[s 212.1] Offender.—,
The word used is 'offender' and not 'accused' or a person convicted for that offence.,
"The person who is sheltering, harbouring or concealing that person must have",
"knowledge or has reason to believe that he is the 'offender'. The word ""offender"" is not",
"defined under IPC, 1860. ""Offender"" as per the Dictionary, means ""a person who has",
"committed a crime or offence."" Hence, a person who is convicted or acquitted may be",
"an offender, for the purpose of section 212. An ""offender"" for the purpose of section",
"212 is neither a convict nor an accused, but he is a person who has actually committed",
the offence. The failure of the prosecution to prove the identity of the person who,
"committed the offence does not render the person, who committed the offence, not an",
offender. He can be said to be an offender whose guilt has not been proved in Court.,
"Yet, he is an offender, if he has committed an offence.281.",
This section applies to the harbouring of persons who have actually committed some,
"offence under the Penal Code or an offence under some special or local law, when the",
thing punishable under such special or local law is punishable with imprisonment for a,
"term of six months or upwards. It does not apply to the harbouring of persons, not",
"being criminals, who merely abscond to avoid or delay a judicial investigation.282.",
Where there was no material to show that the accused had the knowledge or that he,
reasonably believed that he was harbouring or concealing a person who was an,
"offender and the essential feature of secrecy was totally absent, it was held that no",
offence under section 212 was made out.283. It is the knowledge or the reasonable,
"belief of the accused under section.212 that the person whom, he has harboured or",
"concealed to be the offender, which is relevant. But, such knowledge or belief must be",
"entertained by the accused, on the date on which he commits the offence by",
harbouring or concealing him.284.,
In the conspiracy for assassination of the former Prime Minister of India (Mr. Rajiv,
"Gandhi), some of the accused persons appeared at the scene after achievement of the",
object. They played the role of harbouring and sheltering the main accused persons,
with full knowledge of their involvement in the assassination. They also made efforts to,
destroy evidence. Their conviction under section 212 was held to be proper.285.,
[s 212.2] Exception.—,
The Exception only extends to cases where harbour is afforded by a wife or husband.,
No other relationship can excuse the wilful receipt or assistance of felons; a father,
"cannot assist his child, a child his parent, a brother his brother, a master his servant, a",
servant his master.,
"[s 212.3] Section 212 IPC, 1860 and section 39 of Code of Criminal Procedure",
1973.—,
It is the duty of every citizen who is aware of commission of or of the intention of any,
"other person to commit any offence punishable under sections 302, 304, 449, etc., to",
forthwith give information to the nearest Magistrate or police-officer of such,
commission of offence or intention. This provision is mandatory unless there is a,
reasonable excuse for omission or failure to inform. Section 39 of the Code of Criminal,
"Procedure specifically provides that public ""shall"" give information to the police or the",
nearest Magistrate regarding commission of certain offences referred to in the said,
"section. Section 39 is only a procedural section, violation of which is not made",
"punishable under any penal statute, but, if a person who has knowledge or reasonable",
belief that a person is the offender can be treated as a person who is aware of the,
commission of the offence and even if he is not punishable for violating section 39 of,
"the Code of Criminal Procedure when he harbours or conceals such an offender, he",
must certainly be guilty for offence under section 212.286.,
[s 212.4] Conviction of the person concealed–whether mandatory.—,
Nowhere in section 212 it is stated that the person concealed should be convicted for,
"an offence. Even if the main offender leaves unpunished by the Court, the object of the",
provision under section 212 requires that the person who has concealed or harboured,
the offender whom he believes and knows has committed the offence shall not leave,
unpunished if the other ingredients are established. The criminality lies in the act of,
concealment committed with the knowledge or belief that the person who is harboured,
or concealed is the offender and also with the criminal intention of screening him from,
legal punishment.287.,
"1. S Palani Velayutham v District Collector Tirunvelveli TN, (2010) 1 SCC (Cr) 401 : (2009) 10 SCC",
664 [LNIND 2009 SC 1659] : (2009) 12 SCR 1215 [LNIND 2009 SC 1659] .,
"274. Subs. by Act 26 of 1955, section 117 and Sch., for ""transportation for life"" (w.e.f. 1 January",
1956).,
"275. Ins. by Act 3 of 1894, section 7.",
"276. The words ""British India"" have successively been subs. by the A.O. 1948, the A.O. 1950 and",
"Act 3 of 1951, section 3 and Sch. (w.e.f. 1 April 1951), to read as above.",
277. Ibid.,
278. Ibid.,
"279. Subs. by Act 26 of 1955, section 117 and Sch, for ""transportation for life"" (w.e.f. 1 January",
1956).,
"280. Sujith v State of Kerala, 2008 Cr LJ 824 (Ker), Aleem v State of AP, (1995) 1 Cr LJ 866 (AP).",
"See also State v Siddarth Vashisth, (alias Manu Sharma), 2001 Cr LJ 2404 (Del), the co-accused",
"had knowledge that the accused had committed murder, both of them were fellow directors in a",
company. He sent the car to pick up the accused from the place of occurrence to facilitate his,
escape. Liable to be punished under the section.,
"281. Sujith v State of Kerala, 2008 Cr LJ 824 (Ker).",
"282. Ramraj Choudhury, (1945) 24 Pat 604; Mir Faiz Ali v State of Maharashtra, 1992 Cr LJ 1034",
(Bom).,
"283. State v Sushil Sharma, 2007 Cr LJ 4008 (Del); Niranjan Ojha v State of Orissa, 1992 Cr LJ",
"1863 (Ori); Also see Durga Shankar v State of Madhya Pradesh, 2006 Cr LJ 2494 (MP).",
"284. Sujith v State of Kerala, 2008 Cr LJ 824 (Ker).",
"285. State of TN v Nalini, AIR 1999 Cr LJ 3124 : AIR 1999 SC 2640 [LNIND 1999 SC 1584] .",
"286. Sujith v State of Kerala, 2008 Cr LJ 824 (Ker).",
"287. Sujith v State of Kerala, 2008 Cr LJ 824 (Ker).",
THE INDIAN PENAL CODE,
CHAPTER XI OF FALSE EVIDENCE AND OFFENCES AGAINST PUBLIC,
JUSTICE,
"Under the Indian Penal Code, 1860 offences relating to false evidence and offences",
against public justice are contained in Chapter XI. In relation to proceeding in any,
"Court, the offences enumerated are: giving false evidence or fabricating false evidence",
(sections 191–193); giving or fabricating false evidence with intent to procure,
conviction (sections 194 and 195); threatening any person to give false evidence,
(section 195A); using evidence known to be false (section 196); using as true a,
certificate known to be false (section 198); making a false statement in a declaration,
which is by law receivable as evidence (section 199); using as true any declaration,
"receivable as evidence, knowing it to be false (section 200); causing disappearance of",
"evidence of offence, or giving false information to screen offender (section 201);",
intentional omission to give information of offence by person bound to inform (section,
202); giving false information in respect of an offence (section 203); destruction of,
document or electronic record to prevent its production as evidence (section 204);,
false personation (section 205); fraudulent removal/concealment of property (section,
206); fraudulent claim to property (section 207); fraudulently suffering or obtaining,
decree for sum not due (section 208 and section 210); dishonestly making a false,
claim in Court (section 209); and intentional insult or interruption to public servant,
sitting in judicial proceedings (section 228). Section 195 of Code of Criminal Procedure,
provides that no Court shall take cognizance of any offence punishable under section,
172–188 (dealing with the contempt of the lawful authority of public servants) or,
"section 193–196, 199, 200, 205–211 and 228, when such offence is alleged to have",
"been committed in, or in relation to, any proceeding in any Court, except on the",
complaint in writing of that Court by such officer of the Court as that Court may,
"authorise in writing in this behalf, or of some other Court to which that Court is",
subordinate.1.,
"[s 213] Taking gift, etc., to screen an offender from punishment—.",
"Whoever accepts or attempts to obtain, or agrees to accept, any gratification for",
"himself or any other person, or any restitution of property to himself or any other",
"person, in consideration of his concealing an offence or of his screening any person",
"from legal punishment for any offence, or of his not proceeding against any person",
"for the purpose of bringing him to legal punishment,",
if a capital offence;,
"shall, if the offence is punishable with death, be punished with imprisonment of",
"either description for a term which may extend to seven years, and shall also be",
liable to fine;,
"if punishable with imprisonment for life, or with imprisonment.",
"and if the offence is punishable with imprisonment for life, or with imprisonment",
"which may extend to ten years, shall be punished with imprisonment of either",
"description for a term which may extend to three years, and shall also be liable to",
fine;,
"and if the offence is punishable with imprisonment not extending to ten years,",
shall be punished with imprisonment of the description provided for the offence,
for a term which may extend to one-fourth part of the longest term of,
"imprisonment provided for the offence, or with fine, or with both.",
COMMENT.—,
"The compounding of a crime, by some agreement not to bring the criminal to justice if",
"the property is restored or a pecuniary or other gratification is given, is the offence",
punished by this and the following sections. It is the duty of every State to punish,
"criminals. No individual has, therefore, a right to compound a crime because he himself",
is injured and no one else.,
[s 213.1] Ingredients.—,
The section has two essentials:,
1. A person accepting or attempting to obtain any gratification or restitution of property,
for himself or any other person.,
2. Such gratification must have been obtained in consideration of (a) concealing an,
"offence, or (b) screening any person from legal punishment for an offence, or (c) not",
proceeding against a person for the purpose of bringing him to legal punishment. The,
"most important ingredient of the charge, under section 213, viz., is that the payment",
was in relation to the interference with the course of a judicial proceeding and the,
tampering with the evidence.288.,
[s 213.2] Scope.—,
According to the Calcutta High Court this section applies only where there has been an,
"actual concealment of an offence, or screening of a person from legal punishment, or",
"abstention from proceeding criminally against a person, and, as consideration for the",
"same, there has been an acceptance of, or attempt to obtain, or agreement to accept,",
any gratification or restitution of property. It has no application where only an,
"acceptance of or attempt to obtain, or agreement to accept, any gratification or",
"restitution on a promise to conceal, screen or abstain, is proved and nothing more.289.",
The Bombay High Court has dissented from this view and has held that this section,
does not require the actual concealment of an offence or the screening of any person,
from legal punishment or the actual forbearing of taking any proceedings. It is,
sufficient if an illegal gratification is received in consideration of a promise to conceal,
an offence or screen any person from legal punishment or desist from taking any,
proceedings.290.,
The section does not apply where the compounding of an offence is legal.,
[s 213.3] Mere suspicion.—,
This section is applicable only when it is proved that the person screened or attempted,
"to be screened from legal punishment has been guilty of an offence, and not when",
there is merely a suspicion of his having committed some offence.291.,
"1. S Palani Velayutham v District Collector Tirunvelveli TN, (2010) 1 SCC (Cr) 401 : (2009) 10 SCC",
664 [LNIND 2009 SC 1659] : (2009) 12 SCR 1215 [LNIND 2009 SC 1659] .,
"288. Mir Faizali Shaheen v The State of Maharashtra, 1991 Cr LJ 1034 (Bom).",
"289. Hemachandra Mukherjee, (1924) 52 Cal 151 .",
"290. Biharilal Kalacharan, (1949) 51 Bom LR 564 .",
"291. Girish Myte, (1896) 23 Cal 420 ; Sanalal; Gordhandas, (1913) 15 Bom LR 694 [LNIND 1913",
"BOM 68] , 37 Bom 658, there must be knowledge that such person was an offender; Sumativijay",
"Jain v State of MP, 1992 Cr LJ 97 (MP)",
THE INDIAN PENAL CODE,
CHAPTER XI OF FALSE EVIDENCE AND OFFENCES AGAINST PUBLIC,
JUSTICE,
"Under the Indian Penal Code, 1860 offences relating to false evidence and offences",
against public justice are contained in Chapter XI. In relation to proceeding in any,
"Court, the offences enumerated are: giving false evidence or fabricating false evidence",
(sections 191–193); giving or fabricating false evidence with intent to procure,
conviction (sections 194 and 195); threatening any person to give false evidence,
(section 195A); using evidence known to be false (section 196); using as true a,
certificate known to be false (section 198); making a false statement in a declaration,
which is by law receivable as evidence (section 199); using as true any declaration,
"receivable as evidence, knowing it to be false (section 200); causing disappearance of",
"evidence of offence, or giving false information to screen offender (section 201);",
intentional omission to give information of offence by person bound to inform (section,
202); giving false information in respect of an offence (section 203); destruction of,
document or electronic record to prevent its production as evidence (section 204);,
false personation (section 205); fraudulent removal/concealment of property (section,
206); fraudulent claim to property (section 207); fraudulently suffering or obtaining,
decree for sum not due (section 208 and section 210); dishonestly making a false,
claim in Court (section 209); and intentional insult or interruption to public servant,
sitting in judicial proceedings (section 228). Section 195 of Code of Criminal Procedure,
provides that no Court shall take cognizance of any offence punishable under section,
172–188 (dealing with the contempt of the lawful authority of public servants) or,
"section 193–196, 199, 200, 205–211 and 228, when such offence is alleged to have",
"been committed in, or in relation to, any proceeding in any Court, except on the",
complaint in writing of that Court by such officer of the Court as that Court may,
"authorise in writing in this behalf, or of some other Court to which that Court is",
subordinate.1.,
[s 214] Offering gift or restoration of property in consideration of screening,
offender—.,
"Whoever gives or causes, or offers or agrees to give or cause, any gratification to any",
"person, or 292.[restores or causes the restoration of] any property to any person, in",
"consideration of that person's concealing an offence, or of his screening any person",
"from legal punishment for any offence, or of his not proceeding against any person",
for the purpose of bringing him to legal punishment;,
if a capital offence;,
"shall, if the offence is punishable with death, be punished with imprisonment of",
"either description for a term which may extend to seven years, and shall also be",
liable to fine;,
"if punishable with imprisonment for life, or with imprisonment.",
"and if the offence is punishable with 293.[imprisonment for life], or with",
"imprisonment which may extend to ten years, shall be punished with",
"imprisonment of either description for a term which may extend to three years,",
and shall also be liable to fine;,
"and if the offence is punishable with imprisonment not extending to ten years,",
shall be punished with imprisonment of the description provided for the offence,
for a term which may extend to one-fourth part of the longest term of,
"imprisonment provided for the offence, or with fine, or with both.",
294.[Exception.—The provisions of sections 213 and 214 do not extend to any,
case in which the offence may lawfully be compounded.],
"Illustrations. [Rep. by Act 10 of 1882, section 2 and Sch I.]",
COMMENT.—,
The preceding section punishes the receiver of a gift in consideration of compromising,
"an offence, whereas this section punishes the offerer of the gift.",
[s 214.1] Ingredients.—,
This section has two essentials—,
1. Offering any gratification or restoration of property to some person.,
2. Such offer must have been in consideration of the person's (a) concealing an,
"offence, or (b) of his screening any person from legal punishment for an offence, or (c)",
"of his not proceeding against a person, for the purpose of bringing him to legal",
punishment. The section presupposes the actual commission of an offence or the guilt,
"of the person screened from punishment. Where the accused, an overseer who was",
charged with preparing false muster rolls and misappropriating Government money,
allegedly tried to bribe someone with a view to prevent action being taken against him,
"and was thus prosecuted under sections 165A and 214, IPC, 1860, but was acquitted of",
"the offence under section 165A, IPC, 1860, for want of evidence, he could not also be",
"convicted in view of infirmities of the case of an offence under section 214, IPC,",
1860.295.,
Section 320(1) of the Criminal Procedure Code enumerates the offences that can be,
lawfully compounded.,
"1. S Palani Velayutham v District Collector Tirunvelveli TN, (2010) 1 SCC (Cr) 401 : (2009) 10 SCC",
664 [LNIND 2009 SC 1659] : (2009) 12 SCR 1215 [LNIND 2009 SC 1659] .,
"292. Subs. by Act 42 of 1953, section 4 and Sch III, for ""to restore or cause the restoration of""",
(w.e.f. 23 December 1953).,
"293. Subs. by Act 26 of 1955, section 117 and Sch., for ""transportation for life"" (w.e.f. 1 January",
1956).,
"294. Subs. by Act 8 of 1882, section 6, for Exception.",
"295. Mohd Aslam, 1981 Cr LJ 1285 : AIR 1981 SC 1735 .",
THE INDIAN PENAL CODE,
CHAPTER XI OF FALSE EVIDENCE AND OFFENCES AGAINST PUBLIC,
JUSTICE,
"Under the Indian Penal Code, 1860 offences relating to false evidence and offences",
against public justice are contained in Chapter XI. In relation to proceeding in any,
"Court, the offences enumerated are: giving false evidence or fabricating false evidence",
(sections 191–193); giving or fabricating false evidence with intent to procure,
conviction (sections 194 and 195); threatening any person to give false evidence,
(section 195A); using evidence known to be false (section 196); using as true a,
certificate known to be false (section 198); making a false statement in a declaration,
which is by law receivable as evidence (section 199); using as true any declaration,
"receivable as evidence, knowing it to be false (section 200); causing disappearance of",
"evidence of offence, or giving false information to screen offender (section 201);",
intentional omission to give information of offence by person bound to inform (section,
202); giving false information in respect of an offence (section 203); destruction of,
document or electronic record to prevent its production as evidence (section 204);,
false personation (section 205); fraudulent removal/concealment of property (section,
206); fraudulent claim to property (section 207); fraudulently suffering or obtaining,
decree for sum not due (section 208 and section 210); dishonestly making a false,
claim in Court (section 209); and intentional insult or interruption to public servant,
sitting in judicial proceedings (section 228). Section 195 of Code of Criminal Procedure,
provides that no Court shall take cognizance of any offence punishable under section,
172–188 (dealing with the contempt of the lawful authority of public servants) or,
"section 193–196, 199, 200, 205–211 and 228, when such offence is alleged to have",
"been committed in, or in relation to, any proceeding in any Court, except on the",
complaint in writing of that Court by such officer of the Court as that Court may,
"authorise in writing in this behalf, or of some other Court to which that Court is",
subordinate.1.,
"[s 215] Taking gift to help to recover stolen property, etc.",
Whoever takes or agrees or consents to take 1 any gratification under pretence or on,
account of helping any person to recover any movable property of which he shall have,
"been deprived by any offence punishable under this Code, shall, unless he uses all",
means in his power to cause the offender to be apprehended 2 and convicted of the,
"offence, be punished with imprisonment of either description for a term which may",
"extend to two years, or with fine, or with both.",
COMMENT.—,
"Scope.—This section is intended to apply to someone who, being in league with the",
"thief, receives some gratification on account of helping the owner to recover the stolen",
"property, without at the same time using all the means in his power to cause the thief",
to be apprehended and convicted of the offence. There is nothing in this section that,
should exclude an actual thief from liability under it if in addition to committing theft he,
also tried to realise money by a promise to return the stolen article. An actual thief or a,
person suspected to be the thief can be convicted under this section.296.,
[s 215.1] Ingredients.—,
This section has three essentials—,
1. Taking or agreeing or consenting to take any gratification under pretence or on,
account of helping any person to recover any movable property.,
2. The owner of such property must have been deprived of it by an offence,
punishable under the Penal Code.,
3. The person taking the gratification must not have used all means in his power to,
cause the offender to be apprehended and convicted of the offence.,
[s 215.2] Object.—,
"The primary aim of this section is to punish all trafficking by which a person, knowing",
"that property has been obtained by crime, and knowing the criminal, makes a profit out",
of the crime while screening the offender from justice. The clear meaning of the,
section is that it is an offence to receive money for helping any person to recover,
property stolen or misappropriated and that there is an exception only in favour of the,
man who can show that he used all means in his power to cause the apprehension of,
the offender.297.,
1. 'Takes or agrees or consents to take'.—These words imply that the person taking the,
gratification and the person giving it have agreed not only as to the object for which the,
"gratification is to be given, but also as to the shape or form the gratification is to",
take.298.,
2. 'Unless he uses all means in his power to cause the offender to be apprehended'.—,
It is not for the prosecution to prove the negative that the accused did not use all his,
power to cause the offender to be apprehended. It is for the defence to establish that,
the accused did all in his power to cause the offender to be apprehended.299.,
"1. S Palani Velayutham v District Collector Tirunvelveli TN, (2010) 1 SCC (Cr) 401 : (2009) 10 SCC",
664 [LNIND 2009 SC 1659] : (2009) 12 SCR 1215 [LNIND 2009 SC 1659] .,
"296. Mukhtara, (1924) 46 All 915 ; Deo Suchit Rai, (1947) ALJ 48 (FB); overruling Muhammad Ali,",
"(1900) 23 All 81 and Mangu, (1927) 50 All 186 .",
"297. Yusuf Mian v State, (1938) All 681 .",
"298. Hargayan v State, (1922) 45 All 159 .",
"299. Deo Suchit Rai, 1947 All LJ 48 (FB); DK Balai, 1959 Cr LJ 1438 .",
THE INDIAN PENAL CODE,
CHAPTER XI OF FALSE EVIDENCE AND OFFENCES AGAINST PUBLIC,
JUSTICE,
"Under the Indian Penal Code, 1860 offences relating to false evidence and offences",
against public justice are contained in Chapter XI. In relation to proceeding in any,
"Court, the offences enumerated are: giving false evidence or fabricating false evidence",
(sections 191–193); giving or fabricating false evidence with intent to procure,
conviction (sections 194 and 195); threatening any person to give false evidence,
(section 195A); using evidence known to be false (section 196); using as true a,
certificate known to be false (section 198); making a false statement in a declaration,
which is by law receivable as evidence (section 199); using as true any declaration,
"receivable as evidence, knowing it to be false (section 200); causing disappearance of",
"evidence of offence, or giving false information to screen offender (section 201);",
intentional omission to give information of offence by person bound to inform (section,
202); giving false information in respect of an offence (section 203); destruction of,
document or electronic record to prevent its production as evidence (section 204);,
false personation (section 205); fraudulent removal/concealment of property (section,
206); fraudulent claim to property (section 207); fraudulently suffering or obtaining,
decree for sum not due (section 208 and section 210); dishonestly making a false,
claim in Court (section 209); and intentional insult or interruption to public servant,
sitting in judicial proceedings (section 228). Section 195 of Code of Criminal Procedure,
provides that no Court shall take cognizance of any offence punishable under section,
172–188 (dealing with the contempt of the lawful authority of public servants) or,
"section 193–196, 199, 200, 205–211 and 228, when such offence is alleged to have",
"been committed in, or in relation to, any proceeding in any Court, except on the",
complaint in writing of that Court by such officer of the Court as that Court may,
"authorise in writing in this behalf, or of some other Court to which that Court is",
subordinate.1.,
[s 216] Harbouring offender who has escaped from custody or whose,
apprehension has been ordered—.,
"Whenever any person convicted of or charged with an offence, being in lawful custody",
"for that offence, escapes from such custody;",
"or whenever a public servant, in the exercise of the lawful powers of such public",
"servant, orders a certain person to be apprehended for an offence, whoever, knowing",
"of such escape or order for apprehension, harbours of conceals that person with the",
"intention of preventing him from being apprehended, shall be punished in the manner",
"following that is to say,—",
if a capital offence;,
if the offence for which the person was in custody or is ordered to be,
"apprehended is punishable with death, he shall be punished with imprisonment of",
"either description for a term which may extend to seven years, and shall also be",
liable to fine;,
"if punishable with imprisonment for life, or with imprisonment.",
"if the offence is punishable with 300.[imprisonment for life], or imprisonment for",
"ten years, he shall be punished with imprisonment of either description for a term",
"which may extend to three years, with or without fine;",
and if the offence is punishable with imprisonment which may extend to one year,
"and not to ten years, he shall be punished with imprisonment of the description",
provided for the offence for a term which may extend to one-fourth part of the,
"longest term of the imprisonment provided for such offence, or with fine, or with",
both.,
"301.[""Offence"" in this section includes also any act or omission of which a person",
"is alleged to have been guilty out of 302.[India], which, if he had been guilty of it in",
"303.[India], would have been punishable as an offence, and for which he is, under",
"any law relating to extradition, 304.[***] or otherwise, liable to be apprehended or",
"detained in custody in 305.[India]; and every such act or omission shall, for the",
"purposes of this section, be deemed to be punishable as if the accused person",
had been guilty of it in 306.[India].],
Exception.—This provision does not extend to the case in which the harbour or,
concealment is by the husband or wife of the person to be apprehended.,
COMMENT.—,
"To establish an offence under this section it must be shown, (1) that there has been an",
order for the apprehension of a certain person as being guilty of an offence; (2),
"knowledge by the accused party of that order, and (3) the harbouring or concealing by",
the accused of the person with the intention of preventing him from being,
apprehended.307. It would not be safe to convict the appellant for the offence,
"punishable under section 216 IPC, 1860 in absence of evidence in this regard.308.",
This section may be compared with section 212. The latter deals with the offence of,
harbouring an offender who having committed an offence absconds. This section,
deals with harbouring an offender who has escaped from custody after being actually,
"convicted or charged with the offence, or whose apprehension has been ordered; the",
"latter offence is in the eye of the law more aggravated, and a heavier punishment is,",
"therefore, awarded for it. It is thus an aggravated form of the offence punishable under",
section 212.,
The section only takes into consideration cases where the man who is harboured is,
wanted for an offence for which a maximum sentence of at least one year's,
imprisonment is provided. No provision is made for cases where he is wanted for,
offences for which the maximum sentence is less than one year.309. Where certain,
"persons were apprehended for gaming and they escaped from police custody, it was",
held by the Supreme Court that this section was not applicable because they were,
neither charged nor convicted of any offence and that the conviction should have been,
under section 224.310.,
"1. S Palani Velayutham v District Collector Tirunvelveli TN, (2010) 1 SCC (Cr) 401 : (2009) 10 SCC",
664 [LNIND 2009 SC 1659] : (2009) 12 SCR 1215 [LNIND 2009 SC 1659] .,
"300. Subs. by Act 26 of 1955, section 117 and Sch, for ""transportation for life"" (w.e.f. 1 January",
1956).,
"301. Ins. by Act 10 of 1886, section 23.",
"302. The words ""British India"" have successively been subs. by the A.O. 1948, the A.O. 1950 and",
"Act 3 of 1951, section 3 and Sch (w.e.f. 1 April 1951), to read as above.",
303. Ibid.,
"304. The words ""or under the Fugitive Offenders Act, 1881,"" omitted by Act 3 of 1951, section 3",
and Sch (w.e.f. 1 April 1951).,
"305. The words ""British India"" have successively been subs. by the A.O. 1948, the A.O. 1950 and",
"Act 3 of 1951, section 3 and Sch (w.e.f. 1 April 1951), to read as above.",
306. Ibid.,
"307. Easwaramurthi, (1944) 71 IA 83 , 46 Bom LR 844, (1945) Mad 237.",
"308. Anadharaj v State of TN, (2000) 9 SCC 45 : JT 2000 (3) SC 368 : 2000 AIR (SCW) 4957;",
(2000) 1 SCC (Cr) 1154.,
"309. Deo Baksh Singh, (1942) 18 Luck 617 .",
"310. Ajab v State of Maharashtra, AIR 1989 SC 827 : 1989 Cr LJ 954 : 1989 Supp (1) SCC 601 .",
THE INDIAN PENAL CODE,
CHAPTER XI OF FALSE EVIDENCE AND OFFENCES AGAINST PUBLIC,
JUSTICE,
"Under the Indian Penal Code, 1860 offences relating to false evidence and offences",
against public justice are contained in Chapter XI. In relation to proceeding in any,
"Court, the offences enumerated are: giving false evidence or fabricating false evidence",
(sections 191–193); giving or fabricating false evidence with intent to procure,
conviction (sections 194 and 195); threatening any person to give false evidence,
(section 195A); using evidence known to be false (section 196); using as true a,
certificate known to be false (section 198); making a false statement in a declaration,
which is by law receivable as evidence (section 199); using as true any declaration,
"receivable as evidence, knowing it to be false (section 200); causing disappearance of",
"evidence of offence, or giving false information to screen offender (section 201);",
intentional omission to give information of offence by person bound to inform (section,
202); giving false information in respect of an offence (section 203); destruction of,
document or electronic record to prevent its production as evidence (section 204);,
false personation (section 205); fraudulent removal/concealment of property (section,
206); fraudulent claim to property (section 207); fraudulently suffering or obtaining,
decree for sum not due (section 208 and section 210); dishonestly making a false,
claim in Court (section 209); and intentional insult or interruption to public servant,
sitting in judicial proceedings (section 228). Section 195 of Code of Criminal Procedure,
provides that no Court shall take cognizance of any offence punishable under section,
172–188 (dealing with the contempt of the lawful authority of public servants) or,
"section 193–196, 199, 200, 205–211 and 228, when such offence is alleged to have",
"been committed in, or in relation to, any proceeding in any Court, except on the",
complaint in writing of that Court by such officer of the Court as that Court may,
"authorise in writing in this behalf, or of some other Court to which that Court is",
subordinate.1.,
311.[s 216A] Penalty for harbouring robbers or dacoits.,
"Whoever, knowing or having reason to believe that any persons are about to commit",
"or have recently committed robbery or dacoity, harbours them or any of them, with the",
intention of facilitating the commission of such robbery or dacoity or of screening,
"them or any of them from punishment, shall be punished with rigorous imprisonment",
"for a term which may extend to seven years, and shall also be liable to fine.",
Explanation.—For the purposes of this section it is immaterial whether the robbery or,
"dacoity is intended to be committed, or has been committed, within or without 312.",
[India].,
Exception.—This provision does not extend to the case in which the harbour is by the,
husband or wife of the offender.],
COMMENT.—,
"This section enables the Court to inflict enhanced punishment, where the persons",
harboured are robbers or dacoits or where they intended to commit robbery or dacoity.,
Where a person charged with the substantive offence of dacoity or robbery has been,
"acquitted of that offence, another person who is said to have intended to screen him",
from legal punishment in respect of that offence cannot be held guilty of harbouring,
the alleged offender under this section.313.,
"1. S Palani Velayutham v District Collector Tirunvelveli TN, (2010) 1 SCC (Cr) 401 : (2009) 10 SCC",
664 [LNIND 2009 SC 1659] : (2009) 12 SCR 1215 [LNIND 2009 SC 1659] .,
"311. Ins. by Act 3 of 1894, section 8.",
"312. The words ""British India"" have successively been subs. by the A.O. 1948, the A.O. 1950 and",
"Act 3 of 1951, section 3 and Sch (w.e.f. 1 April 1951), to read as above.",
"313. Subramanya Ayyar, (1947) Mad 793.See for acquittal under section 216A, acquitted on",
"fact, State of Madhya Pradesh v Veeru Singh, 2010Cr LJ 2896 (MP)",
THE INDIAN PENAL CODE,
CHAPTER XI OF FALSE EVIDENCE AND OFFENCES AGAINST PUBLIC,
JUSTICE,
"Under the Indian Penal Code, 1860 offences relating to false evidence and offences",
against public justice are contained in Chapter XI. In relation to proceeding in any,
"Court, the offences enumerated are: giving false evidence or fabricating false evidence",
(sections 191–193); giving or fabricating false evidence with intent to procure,
conviction (sections 194 and 195); threatening any person to give false evidence,
(section 195A); using evidence known to be false (section 196); using as true a,
certificate known to be false (section 198); making a false statement in a declaration,
which is by law receivable as evidence (section 199); using as true any declaration,
"receivable as evidence, knowing it to be false (section 200); causing disappearance of",
"evidence of offence, or giving false information to screen offender (section 201);",
intentional omission to give information of offence by person bound to inform (section,
202); giving false information in respect of an offence (section 203); destruction of,
document or electronic record to prevent its production as evidence (section 204);,
false personation (section 205); fraudulent removal/concealment of property (section,
206); fraudulent claim to property (section 207); fraudulently suffering or obtaining,
decree for sum not due (section 208 and section 210); dishonestly making a false,
claim in Court (section 209); and intentional insult or interruption to public servant,
sitting in judicial proceedings (section 228). Section 195 of Code of Criminal Procedure,
provides that no Court shall take cognizance of any offence punishable under section,
172–188 (dealing with the contempt of the lawful authority of public servants) or,
"section 193–196, 199, 200, 205–211 and 228, when such offence is alleged to have",
"been committed in, or in relation to, any proceeding in any Court, except on the",
complaint in writing of that Court by such officer of the Court as that Court may,
"authorise in writing in this behalf, or of some other Court to which that Court is",
subordinate.1.,
[s 216B] [Repealed],
"314.[***] Definition of ""harbour"" in sections 212, 216 and 216A. [Repealed by Indian",
"Penal Co de (Amendment) Act, 1942 (VIII of 1942), section 3].",
"1. S Palani Velayutham v District Collector Tirunvelveli TN, (2010) 1 SCC (Cr) 401 : (2009) 10 SCC",
664 [LNIND 2009 SC 1659] : (2009) 12 SCR 1215 [LNIND 2009 SC 1659] .,
"314. Ins. by Act 3 of 1894, section 8.",
THE INDIAN PENAL CODE,
CHAPTER XI OF FALSE EVIDENCE AND OFFENCES AGAINST PUBLIC,
JUSTICE,
"Under the Indian Penal Code, 1860 offences relating to false evidence and offences",
against public justice are contained in Chapter XI. In relation to proceeding in any,
"Court, the offences enumerated are: giving false evidence or fabricating false evidence",
(sections 191–193); giving or fabricating false evidence with intent to procure,
conviction (sections 194 and 195); threatening any person to give false evidence,
(section 195A); using evidence known to be false (section 196); using as true a,
certificate known to be false (section 198); making a false statement in a declaration,
which is by law receivable as evidence (section 199); using as true any declaration,
"receivable as evidence, knowing it to be false (section 200); causing disappearance of",
"evidence of offence, or giving false information to screen offender (section 201);",
intentional omission to give information of offence by person bound to inform (section,
202); giving false information in respect of an offence (section 203); destruction of,
document or electronic record to prevent its production as evidence (section 204);,
false personation (section 205); fraudulent removal/concealment of property (section,
206); fraudulent claim to property (section 207); fraudulently suffering or obtaining,
decree for sum not due (section 208 and section 210); dishonestly making a false,
claim in Court (section 209); and intentional insult or interruption to public servant,
sitting in judicial proceedings (section 228). Section 195 of Code of Criminal Procedure,
provides that no Court shall take cognizance of any offence punishable under section,
172–188 (dealing with the contempt of the lawful authority of public servants) or,
"section 193–196, 199, 200, 205–211 and 228, when such offence is alleged to have",
"been committed in, or in relation to, any proceeding in any Court, except on the",
complaint in writing of that Court by such officer of the Court as that Court may,
"authorise in writing in this behalf, or of some other Court to which that Court is",
subordinate.1.,
[s 217] Public servant disobeying direction of law with intent to save person,
from punishment or property from forfeiture.,
"Whoever, being a public servant, knowingly disobeys any direction of the law as to the",
"way in which he is to conduct himself as such public servant, intending thereby to",
"save, or knowing it to be likely that he will thereby save, any person from legal",
"punishment, or subject him to a less punishment than that to which he is liable, or",
"with intent to save, or knowing that he is likely thereby to save, any property from",
"forfeiture or any charge to which it is liable by law, shall be punished with",
"imprisonment of either description for a term which may extend to two years, or with",
"fine, or with both.",
COMMENT.—,
This section and the three following sections deal with disobedience on the part of,
public servants in respect of official duty.,
This section punishes intentional disobedience of any direction of law on the part of a,
"public servant to save a person from punishment. It is not necessary to show that, in",
"point of fact, the person so intended to be saved had committed an offence, or was",
justly liable to legal punishment. A public servant charged under this section is equally,
"liable to be punished, although the intention, which he had of saving any person from",
"legal punishment, was founded upon a mistaken belief as to that person's liability to",
punishment.315.,
[s 217.1] 'Legal punishment',
does not include departmental punishment.316.,
"1. S Palani Velayutham v District Collector Tirunvelveli TN, (2010) 1 SCC (Cr) 401 : (2009) 10 SCC",
664 [LNIND 2009 SC 1659] : (2009) 12 SCR 1215 [LNIND 2009 SC 1659] .,
"315. Amiruddeen v State, (1878) 3 Cal 412 , 413.See Anup Singh v State of HP, AIR 1995 SC 1941",
; 1995 Cr LJ 3223 (SC) in which conviction under the section upheld by SC,
"316. Jungle v State, (1873) 19 WR (Cr) 40.",
THE INDIAN PENAL CODE,
CHAPTER XI OF FALSE EVIDENCE AND OFFENCES AGAINST PUBLIC,
JUSTICE,
"Under the Indian Penal Code, 1860 offences relating to false evidence and offences",
against public justice are contained in Chapter XI. In relation to proceeding in any,
"Court, the offences enumerated are: giving false evidence or fabricating false evidence",
(sections 191–193); giving or fabricating false evidence with intent to procure,
conviction (sections 194 and 195); threatening any person to give false evidence,
(section 195A); using evidence known to be false (section 196); using as true a,
certificate known to be false (section 198); making a false statement in a declaration,
which is by law receivable as evidence (section 199); using as true any declaration,
"receivable as evidence, knowing it to be false (section 200); causing disappearance of",
"evidence of offence, or giving false information to screen offender (section 201);",
intentional omission to give information of offence by person bound to inform (section,
202); giving false information in respect of an offence (section 203); destruction of,
document or electronic record to prevent its production as evidence (section 204);,
false personation (section 205); fraudulent removal/concealment of property (section,
206); fraudulent claim to property (section 207); fraudulently suffering or obtaining,
decree for sum not due (section 208 and section 210); dishonestly making a false,
claim in Court (section 209); and intentional insult or interruption to public servant,
sitting in judicial proceedings (section 228). Section 195 of Code of Criminal Procedure,
provides that no Court shall take cognizance of any offence punishable under section,
172–188 (dealing with the contempt of the lawful authority of public servants) or,
"section 193–196, 199, 200, 205–211 and 228, when such offence is alleged to have",
"been committed in, or in relation to, any proceeding in any Court, except on the",
complaint in writing of that Court by such officer of the Court as that Court may,
"authorise in writing in this behalf, or of some other Court to which that Court is",
subordinate.1.,
[s 218] Public servant framing incorrect record or writing with intent to save,
person from punishment or property from forfeiture.,
"Whoever, being a public servant, and being as such public servant, charged with the",
"preparation of any record or other writing, frames that record or writing in a manner",
"which he knows to be incorrect, with intent to cause, or knowing it to be likely that he",
"will thereby cause, loss or injury to the public or to any person, or with intent thereby",
"to save, or knowing it to be likely that he will thereby save, any person from legal",
"punishment, or with intent to save, or knowing that he is likely thereby to save, any",
"property from forfeiture or other charge to which it is liable by law, shall be punished",
"with imprisonment of either description for a term which may extend to three years, or",
"with fine, or with both.",
COMMENT.—,
This section deals with intentional preparation by a public servant of a false record with,
the object of saving or injuring any person or property. The correctness of the record is,
of the highest importance to both the State and the public. The intention with which the,
public servant does the act mentioned in the section is an essential ingredient of the,
offence punishable under it.,
[s 218.1] Ingredients.—,
1. Accused was a public servant;,
2. He was entrusted with preparation of any record or writing in his capacity as,
public servant;,
"3. He framed the record and writing incorrectly,",
"4. He did it intentionally,",
5. He did so with the intention or knowledge that it will—,
"(i) cause loss or injury to someone,",
"(ii) Save any person from legal punishment and,",
(iii) Save from property from forfeiture or other charges.317.,
In order to sustain the conviction for making an incorrect entry in a record it is not,
sufficient that the entries are incorrect but it is essential that the entry should have,
been made with the intention to cause injury.318.,
"It is not necessary that the incorrect document should be submitted to another person,",
or otherwise used by the writer.,
A public servant commits the offence punishable under this section even if the person,
whom he intends to save from legal punishment is himself.319.,
[s 218.2] Actual commission of offence not necessary.—,
The actual guilt or innocence of the alleged offender is immaterial if the accused,
believes him guilty and intends to screen him.320.,
The Supreme Court has held that if a police-officer has made a false entry in his diary,
and manipulated other records with a view to save the accused from legal punishment,
"that might be inflicted upon him, the mere fact that the accused was subsequently",
acquitted of the offence cannot make it any the less an offence under this section.321.,
[s 218.3] CASES.—,
Where the accused increased the marks of particular persons for pecuniary benefits,
during the course of preparing final record for appointment of physical education,
"teacher, it is held that the offence alleged is clearly made out.322.",
[s 218.4] Public servant framing incorrect record to save any person from legal,
punishment.—,
"A Superintendent of Police gave a warrant under the Gambling Act, 1867 to D, a Sub-",
"Inspector, to arrest persons found gambling in a certain house. In order to save the",
persons from the legal punishment for having committed an offence under the,
"Gambling Act, 1867 in that house, D framed a first information and a special diary",
"incorrectly. It was held that he was properly charged with, and found guilty of, having",
committed an offence under this section.323. A report of the commission of a dacoity,
was made at a police station. The police-officer in charge of the station took down the,
"report which was made to him, but subsequently destroyed the report and framed",
another and a false report of the commission of a totally different offence to which he,
"obtained the signature of the complainant, and which he endeavoured to pass off as",
the original and correct report made to him by the complainant. It was held that the,
police-officer was guilty of offences punishable under sections 204 and 218.324. Where,
it was proved that the accused's intention in making a false report was to stave off the,
discovery of the previous fraud and save himself or the actual perpetrator of that fraud,
"from legal punishment, it was held that he was guilty of this offence.325. Under this",
"section, substitution of one leaf by another so as to omit a given entry from the page",
substituted is penal.326. Where a Sub-Inspector in his capacity as public servant,
wrongly prepared certain notes in order to concoct a false defence for himself and his,
"colleagues, he was to be convicted under section 218, IPC, 1860.327. Where, however,",
the main offence remains unproved the accused is entitled to have the benefit of doubt,
"in regard to the offence under section 218, IPC, 1860.328.",
[s 218.5] Section 218 and section 192—Difference.—,
"The offence of section 218 IPC, 1860 is not a minor offence included within section",
"192. There is some resemblance between sections 192 and 218 IPC, 1860, because",
both deal with the preparation of a false record. There the resemblance ceases.,
Whereas in section 192 the record is prepared for use in a judicial proceeding with the,
"intention that an erroneous opinion be formed regarding a material point, the offence in",
section 218 is the preparation of a false record by a public servant with the intention of,
saving or injuring any person or property.329.,
"[s 218.6] Bar under section 195 Cr PC, 1973 not applicable, private complaint",
can be filed.—,
Section 218 is a distinct offence which can be proceeded against without the bar of,
section 195 of the Code of Criminal Procedure. There could be a private complaint in,
"respect of an offence under section 218 IPC, 1860.330.",
"[s 218.7] Sanction under section 197 Cr PC, 1973.—",
Issuing false certificate by the Deputy Civil Surgeon cannot be an official act and as,
such no sanction under section 197 of the Code of Criminal Procedure is required.331.,
But in a particular case332. the Calcutta High Court took an opposite view and quashed,
"the proceedings under section 218 IPC, 1860 holding that in the absence of sanction,",
the proceeding cannot be continued.,
"1. S Palani Velayutham v District Collector Tirunvelveli TN, (2010) 1 SCC (Cr) 401 : (2009) 10 SCC",
664 [LNIND 2009 SC 1659] : (2009) 12 SCR 1215 [LNIND 2009 SC 1659] .,
"317. Jayanta Mukherjee v State of West Bengal, 2009 Cr LJ 4178 (Cal).",
"318. Raghubansh Lal, (1957) 1 All 368 : AIR 1957 SC 486 [LNIND 1957 SC 21] : 1957 Cr LJ 595",
"319. Nand Kishore v State, (1897) 19 All 305 , overruling Gauri Shankar, (1883) 6 All 42 .",
"320. Hurdut Surma, (1967) 8 WR (Cr) 68.",
"321. Maulud Ahmad, (1964) 2 Cr LJ 71 : 1963 Supp (2) SCR 38 .",
"322. Rakesh Kumar Chhabra v State of H P, 2012 Cr LJ 354 (HP).",
"323. Deodhar Singh, (1899) 27 Cal 144 .",
"324. Muhammad Shah Khan, (1898) 20 All 307 .",
"325. Girdhari Lal, (1886) 8 All 633 .",
"326. Madan Lal v Inderjit, AIR 1970 P&H 200 .",
"327. Sarju Singh, 1978 Cr LJ NOC 286 (All).",
"328. Natarajan Narayan Kurup, 1982 Cr LJ NOC 69 (Ker). See also DV Venkateswara Rao v State",
"of AP, 1997 Cr LJ 919 (AP).",
"329. Kamla Prasad Singh v Hari Nath Singh, AIR 1968 SC 19 [LNIND 1967 SC 170] : 1967 (3) SCR",
828 [LNIND 1967 SC 170] : 1968 Cr LJ 86 .,
"330. Kamla Prasad Singh v Hari Nath Singh, AIR 1968 SC 19 [LNIND 1967 SC 170] : 1967 (3) SCR",
828 [LNIND 1967 SC 170] : 1968 Cr LJ 86 .,
"331. D V Venkateswara Rao v State of AP, 1997 Cr LJ 919 ; Dr Z U Ahmad v State of UP, 1998 Cr",
LJ 2100 (All).,
"332. Jayanta Mukherjee v State of West Bengal, 2009 Cr LJ 4178 (Cal).",
THE INDIAN PENAL CODE,
CHAPTER XI OF FALSE EVIDENCE AND OFFENCES AGAINST PUBLIC,
JUSTICE,
"Under the Indian Penal Code, 1860 offences relating to false evidence and offences",
against public justice are contained in Chapter XI. In relation to proceeding in any,
"Court, the offences enumerated are: giving false evidence or fabricating false evidence",
(sections 191–193); giving or fabricating false evidence with intent to procure,
conviction (sections 194 and 195); threatening any person to give false evidence,
(section 195A); using evidence known to be false (section 196); using as true a,
certificate known to be false (section 198); making a false statement in a declaration,
which is by law receivable as evidence (section 199); using as true any declaration,
"receivable as evidence, knowing it to be false (section 200); causing disappearance of",
"evidence of offence, or giving false information to screen offender (section 201);",
intentional omission to give information of offence by person bound to inform (section,
202); giving false information in respect of an offence (section 203); destruction of,
document or electronic record to prevent its production as evidence (section 204);,
false personation (section 205); fraudulent removal/concealment of property (section,
206); fraudulent claim to property (section 207); fraudulently suffering or obtaining,
decree for sum not due (section 208 and section 210); dishonestly making a false,
claim in Court (section 209); and intentional insult or interruption to public servant,
sitting in judicial proceedings (section 228). Section 195 of Code of Criminal Procedure,
provides that no Court shall take cognizance of any offence punishable under section,
172–188 (dealing with the contempt of the lawful authority of public servants) or,
"section 193–196, 199, 200, 205–211 and 228, when such offence is alleged to have",
"been committed in, or in relation to, any proceeding in any Court, except on the",
complaint in writing of that Court by such officer of the Court as that Court may,
"authorise in writing in this behalf, or of some other Court to which that Court is",
subordinate.1.,
[s 219] Public servant in judicial proceeding corruptly making report etc.,
contrary to law.,
"Whoever, being a public servant, corruptly or maliciously makes or pronounces in any",
"stage of a judicial proceeding, any report, order, verdict, or decision which he knows",
"to be contrary to law, shall be punished with imprisonment of either description for a",
"term which may extend to seven years, or with fine, or with both.",
COMMENT.—,
This section should be read in conjunction with section 77. It contemplates some wilful,
"excess of authority, in other words, a guilty knowledge superadded to an illegal act.",
This section and the following one deal with corrupt or malicious exercise of the power,
vested in a public servant for a particular purpose. From the language of section 219,
"IPC, 1860, it is clear that when any public servant corruptly or maliciously makes or",
"pronounces in any stage of judicial proceeding any report, order, verdict or decision",
"which he knows to be contrary to law, shall be punished.333.",
[s 219.1] Case against judicial officers.—,
"In the present case, there was no allegation that any of the three respondents had",
passed concerned orders corruptly or maliciously or knowing that they were contrary to,
law. Merely because the first order passed by the respondent No. 1 was set aside in the,
"revision filed by the petitioner, it cannot be inferred that respondent No. 1 had acted",
corruptly or maliciously and that too knowing that it was contrary to law.334.,
"1. S Palani Velayutham v District Collector Tirunvelveli TN, (2010) 1 SCC (Cr) 401 : (2009) 10 SCC",
664 [LNIND 2009 SC 1659] : (2009) 12 SCR 1215 [LNIND 2009 SC 1659] .,
"333. Pravin Niwritti Sawant v Hon'ble Shri J B Anandgaonkar Saheb, 2008 Cr LJ 984 (Bom).",
"334. Pravin Niwritti Sawant v Hon'ble Shri J B Anandgaonkar Saheb, 2008 Cr LJ 984 (Bom).",
THE INDIAN PENAL CODE,
CHAPTER XI OF FALSE EVIDENCE AND OFFENCES AGAINST PUBLIC,
JUSTICE,
"Under the Indian Penal Code, 1860 offences relating to false evidence and offences",
against public justice are contained in Chapter XI. In relation to proceeding in any,
"Court, the offences enumerated are: giving false evidence or fabricating false evidence",
(sections 191–193); giving or fabricating false evidence with intent to procure,
conviction (sections 194 and 195); threatening any person to give false evidence,
(section 195A); using evidence known to be false (section 196); using as true a,
certificate known to be false (section 198); making a false statement in a declaration,
which is by law receivable as evidence (section 199); using as true any declaration,
"receivable as evidence, knowing it to be false (section 200); causing disappearance of",
"evidence of offence, or giving false information to screen offender (section 201);",
intentional omission to give information of offence by person bound to inform (section,
202); giving false information in respect of an offence (section 203); destruction of,
document or electronic record to prevent its production as evidence (section 204);,
false personation (section 205); fraudulent removal/concealment of property (section,
206); fraudulent claim to property (section 207); fraudulently suffering or obtaining,
decree for sum not due (section 208 and section 210); dishonestly making a false,
claim in Court (section 209); and intentional insult or interruption to public servant,
sitting in judicial proceedings (section 228). Section 195 of Code of Criminal Procedure,
provides that no Court shall take cognizance of any offence punishable under section,
172–188 (dealing with the contempt of the lawful authority of public servants) or,
"section 193–196, 199, 200, 205–211 and 228, when such offence is alleged to have",
"been committed in, or in relation to, any proceeding in any Court, except on the",
complaint in writing of that Court by such officer of the Court as that Court may,
"authorise in writing in this behalf, or of some other Court to which that Court is",
subordinate.1.,
[s 220] Commitment for trial or confinement by person having authority who,
knows that he is acting contrary to law.,
"Whoever, being in any office which gives him legal authority to commit persons for",
"trial or to confinement, or to keep persons in confinement, corruptly or maliciously",
"commits any person for trial or to confinement, or keeps any person in confinement,",
"in the exercise of that authority knowing that in so doing he is acting contrary to law,",
shall be punished with imprisonment of either description for a term which may,
"extend to seven years, or with fine, or with both.",
COMMENT.—,
This section is a further extension of the principle laid down in the preceding section. It,
"is general in its application, whereas the last section applies to judicial officers. In order",
to bring home the charge under the section it must next be shown that the accused,
corruptly or maliciously committed such person for trial or to confinement or kept him,
in confinement in exercise of that authority knowing that in so doing he was acting,
contrary to law. This analysis of the section by the Supreme Court occurs in a case in,
which a police constable made the victims to alight from a bus and took them to a,
nearby street. The Court said that at best it could amount to wrongful restraint but not,
"to wrongful confinement.335. Under section 220 IPC, 1860 it is necessary to establish",
"that the officer, who committed any person for trial or to confinement, must have acted",
corruptly or malicious and knowing that he was doing that act contrary to law.336.,
"1. S Palani Velayutham v District Collector Tirunvelveli TN, (2010) 1 SCC (Cr) 401 : (2009) 10 SCC",
664 [LNIND 2009 SC 1659] : (2009) 12 SCR 1215 [LNIND 2009 SC 1659] .,
"335. Suryamoorthy v Govindaswamy, 1989 Cr LJ 1451 : AIR 1989 SC 1410 [LNIND 1989 SC 232]",
at p 1415 : (1989) 3 SCC 24 [LNIND 1989 SC 232] .,
"336. Pravin Niwritti Sawant v Hon'ble Shri J B Anandgaonkar Saheb, 2008 Cr LJ 984 (Bom).",
THE INDIAN PENAL CODE,
CHAPTER XI OF FALSE EVIDENCE AND OFFENCES AGAINST PUBLIC,
JUSTICE,
"Under the Indian Penal Code, 1860 offences relating to false evidence and offences",
against public justice are contained in Chapter XI. In relation to proceeding in any,
"Court, the offences enumerated are: giving false evidence or fabricating false evidence",
(sections 191–193); giving or fabricating false evidence with intent to procure,
conviction (sections 194 and 195); threatening any person to give false evidence,
(section 195A); using evidence known to be false (section 196); using as true a,
certificate known to be false (section 198); making a false statement in a declaration,
which is by law receivable as evidence (section 199); using as true any declaration,
"receivable as evidence, knowing it to be false (section 200); causing disappearance of",
"evidence of offence, or giving false information to screen offender (section 201);",
intentional omission to give information of offence by person bound to inform (section,
202); giving false information in respect of an offence (section 203); destruction of,
document or electronic record to prevent its production as evidence (section 204);,
false personation (section 205); fraudulent removal/concealment of property (section,
206); fraudulent claim to property (section 207); fraudulently suffering or obtaining,
decree for sum not due (section 208 and section 210); dishonestly making a false,
claim in Court (section 209); and intentional insult or interruption to public servant,
sitting in judicial proceedings (section 228). Section 195 of Code of Criminal Procedure,
provides that no Court shall take cognizance of any offence punishable under section,
172–188 (dealing with the contempt of the lawful authority of public servants) or,
"section 193–196, 199, 200, 205–211 and 228, when such offence is alleged to have",
"been committed in, or in relation to, any proceeding in any Court, except on the",
complaint in writing of that Court by such officer of the Court as that Court may,
"authorise in writing in this behalf, or of some other Court to which that Court is",
subordinate.1.,
[s 221] Intentional omission to apprehend on the part of public servant bound,
to apprehend.,
"Whoever, being a public servant, legally bound as such public servant to apprehend or",
to keep in confinement any person charged with or liable to apprehended for an,
"offence, intentionally omits to apprehend such person, or intentionally suffers such",
"person to escape, or intentionally aids such person in escaping or attempting to",
"escape from such confinement, shall be punished as follows, that is to say:—",
"with imprisonment of either description for a term which may extend to seven years,",
"with or without fine, if the person in confinement, or who ought to have been",
"apprehended, was charged with, or liable to be apprehended for, an offence",
punishable with death; or,
"with imprisonment of either description for a term which may extend to three years,",
"with or without fine, if the person in confinement, or who ought to have been",
"apprehended, was charged with, or liable to be apprehended for, an offence",
punishable with 337.[imprisonment for life] or imprisonment for a term which may,
extend to ten years; or,
"with imprisonment of either description for a term which may extend to two years,",
"with or without fine, if the person in confinement, or who ought to have been",
"apprehended, was charged with, or liable to be apprehended for, an offence",
punishable with imprisonment for a term less than ten years.,
COMMENT.—,
"Sections 221, 222 and 223 provide for intentional omission to apprehend, or negligently",
"suffering the escape of, offenders on the part of public servant bound to apprehend or",
to keep in confinement.,
[s 221.1] CASE.—,
Where a constable acting as a Court Moharrir instead of sending the accused to jail,
custody as ordered by the Magistrate directed his release and thus allowed him to,
"escape, it was held that the release being in violation of his legal obligation to have the",
"accused detained in jail custody, the Moharrir was clearly liable under section 221, IPC,",
1860.338. Accused was entrusted with escort duty for the convict to the Hospital.,
Convict was the younger brother of accused's wife. Accused allowed him to escape,
"from Custody. The Karnataka High Court upheld the conviction under sections 221, 222",
and 223.339.,
"1. S Palani Velayutham v District Collector Tirunvelveli TN, (2010) 1 SCC (Cr) 401 : (2009) 10 SCC",
664 [LNIND 2009 SC 1659] : (2009) 12 SCR 1215 [LNIND 2009 SC 1659] .,
"337. Subs. by Act 26 of 1955, section 117 and Sch., for ""transportation for life"" (w.e.f. 1-1-1956).",
"338. Rampal, 1979 Cr LJ 711 : AIR 1979 SC 1184 .",
"339. Younus Khan v State of Karnataka, 2013 Cr LJ 1040 (Kar)",
THE INDIAN PENAL CODE,
CHAPTER XI OF FALSE EVIDENCE AND OFFENCES AGAINST PUBLIC,
JUSTICE,
"Under the Indian Penal Code, 1860 offences relating to false evidence and offences",
against public justice are contained in Chapter XI. In relation to proceeding in any,
"Court, the offences enumerated are: giving false evidence or fabricating false evidence",
(sections 191–193); giving or fabricating false evidence with intent to procure,
conviction (sections 194 and 195); threatening any person to give false evidence,
(section 195A); using evidence known to be false (section 196); using as true a,
certificate known to be false (section 198); making a false statement in a declaration,
which is by law receivable as evidence (section 199); using as true any declaration,
"receivable as evidence, knowing it to be false (section 200); causing disappearance of",
"evidence of offence, or giving false information to screen offender (section 201);",
intentional omission to give information of offence by person bound to inform (section,
202); giving false information in respect of an offence (section 203); destruction of,
document or electronic record to prevent its production as evidence (section 204);,
false personation (section 205); fraudulent removal/concealment of property (section,
206); fraudulent claim to property (section 207); fraudulently suffering or obtaining,
decree for sum not due (section 208 and section 210); dishonestly making a false,
claim in Court (section 209); and intentional insult or interruption to public servant,
sitting in judicial proceedings (section 228). Section 195 of Code of Criminal Procedure,
provides that no Court shall take cognizance of any offence punishable under section,
172–188 (dealing with the contempt of the lawful authority of public servants) or,
"section 193–196, 199, 200, 205–211 and 228, when such offence is alleged to have",
"been committed in, or in relation to, any proceeding in any Court, except on the",
complaint in writing of that Court by such officer of the Court as that Court may,
"authorise in writing in this behalf, or of some other Court to which that Court is",
subordinate.1.,
[s 222] Intentional omission to apprehend on the part of public servant bound,
to apprehend person under sentence or lawfully committed.,
"Whoever, being a public servant, legally bound as such public servant to apprehend or",
to keep in confinement any person under sentence of a Court of Justice for any,
"offence 340.[or lawfully committed to custody], intentionally omits to apprehend such",
"person, or intentionally suffers such person to escape or intentionally aids such",
"person in escaping or attempting to escape from such confinement, shall be punished",
"as follows, that is to say:—",
with 341.[imprisonment for life] or with imprisonment of either description for a term,
"which may extend to fourteen years, with or without fine, if the person in confinement,",
"or who ought to have been apprehended, is under sentence of death; or",
"with imprisonment of either description for a term which may extend to seven years,",
"with or without fine, if the person in confinement, or who ought to have been",
"apprehended, is subject, by a sentence of a Court of Justice, or by virtue of a",
"commutation of such sentence, to 342.[imprisonment for life] 343.[***] 344.[***] 345.",
[***] 346.[***] or imprisonment for a term of ten years or upwards; or,
"with imprisonment of either description for a term which may extend to three years, or",
"with fine, or with both, if the person in confinement, or who ought to have been",
"apprehended is subject, by a sentence of a Court of Justice, to imprisonment for a",
term not exceeding to ten years [or if the person was lawfully committed to custody].,
COMMENT.—,
This section is similar to the last section with the exception that the person to be,
apprehended has already been convicted or committed for an offence. It is thus an,
aggravated form of the offence made punishable by the last section.,
"1. S Palani Velayutham v District Collector Tirunvelveli TN, (2010) 1 SCC (Cr) 401 : (2009) 10 SCC",
664 [LNIND 2009 SC 1659] : (2009) 12 SCR 1215 [LNIND 2009 SC 1659] .,
"340. Ins. by Act 27 of 1870, section 8.",
"341. Subs. by Act 26 of 1955, section 117 and Sch, for ""transportation for life"" (w.e.f. 1 April",
1956).,
342. Ibid.,
"343. The words ""or penal servitude for life"" omitted by Act 17 of 1949, section 2 (w.e.f. 6 April",
1949).,
"344. The words ""or to"" omitted by Act 36 of 1957, section 3 and Sch II (w.e.f. 17 September",
1957).,
"345. The word ""transportation"" omitted by Act 26 of 1955, section 117 and Sch (w.e.f. 1 January",
1956).,
"346. The words ""or penal servitude"" omitted by Act 17 of 1949, section 2 (w.e.f. 6 April 1949).",
THE INDIAN PENAL CODE,
CHAPTER XI OF FALSE EVIDENCE AND OFFENCES AGAINST PUBLIC,
JUSTICE,
"Under the Indian Penal Code, 1860 offences relating to false evidence and offences",
against public justice are contained in Chapter XI. In relation to proceeding in any,
"Court, the offences enumerated are: giving false evidence or fabricating false evidence",
(sections 191–193); giving or fabricating false evidence with intent to procure,
conviction (sections 194 and 195); threatening any person to give false evidence,
(section 195A); using evidence known to be false (section 196); using as true a,
certificate known to be false (section 198); making a false statement in a declaration,
which is by law receivable as evidence (section 199); using as true any declaration,
"receivable as evidence, knowing it to be false (section 200); causing disappearance of",
"evidence of offence, or giving false information to screen offender (section 201);",
intentional omission to give information of offence by person bound to inform (section,
202); giving false information in respect of an offence (section 203); destruction of,
document or electronic record to prevent its production as evidence (section 204);,
false personation (section 205); fraudulent removal/concealment of property (section,
206); fraudulent claim to property (section 207); fraudulently suffering or obtaining,
decree for sum not due (section 208 and section 210); dishonestly making a false,
claim in Court (section 209); and intentional insult or interruption to public servant,
sitting in judicial proceedings (section 228). Section 195 of Code of Criminal Procedure,
provides that no Court shall take cognizance of any offence punishable under section,
172–188 (dealing with the contempt of the lawful authority of public servants) or,
"section 193–196, 199, 200, 205–211 and 228, when such offence is alleged to have",
"been committed in, or in relation to, any proceeding in any Court, except on the",
complaint in writing of that Court by such officer of the Court as that Court may,
"authorise in writing in this behalf, or of some other Court to which that Court is",
subordinate.1.,
[s 223] Escape from confinement or custody negligently suffered by public,
servant.,
"Whoever, being a public servant legally bound as such public servant to keep in",
confinement any person charged with 347.[or convicted of any offence or lawfully,
"committed to custody], negligently suffers such person to escape from confinement,",
shall be punished with simple imprisonment for a term which may extend to two,
"years, or with fine, or with both.",
COMMENT.—,
This section further extends the principle laid down in the two preceding sections. It,
punishes a public servant who negligently suffers any person charged with an offence,
to escape from confinement. The last two sections deal with intentional omission to,
apprehend such person.,
[s 223.1] Ingredients.—,
"In order to establish the charge under section 223, IPC, 1860 the following facts have to",
be established:—,
(i) The accused was a public servant.,
(ii) As such public servant he was bound to keep in confinement any person.,
(iii) Such person was charged with or convicted of an offence or lawfully committed,
to custody.,
(iv) The accused suffered such person to escape.,
(v) The escape was due to the negligence of the public servant.348.,
[s 223.2] Lawful custody.—,
Unless the custody is lawful no offence under this section is committed. If a public,
"servant has no right to keep a person in custody, he is not guilty of allowing that person",
to escape.349. Since the check post officer appointed under section 41(2) Bihar Sales,
Tax Act had no power to detain personnel or driver of a truck which contravened the,
"provisions of the Act, he could not be prosecuted for an offence under section 223, IPC,",
"1860, for allowing detained person to escape especially because section 223 speaks of",
"""confinement of persons charged with or convicted of any offence or lawfully",
"committed to custody"". Even assuming that such a check post officer could detain a",
"person, still he could not be prosecuted as detention was not synonymous with",
confinement nor the persons escaping were charged or convicted of any offence.350. A,
constable who moved about in a market place with the prisoner whom he was,
"supposed to bring to the Court and he escaped, the case was held to be fit one for",
imposing substantive punishment.351.,
This section applies only to cases where the person who is allowed to escape is in,
"custody for an offence, or has been committed to custody, and not to cases where",
such person has merely been arrested under a civil process.352. The latter case would,
come under section 225A. Due to the negligence and carelessness of the police,
constable one accused escaped from police lock-up. It is proved that the petitioner was,
on duty at lock-up room when the accused escaped. Conviction is held proper.353.,
"1. S Palani Velayutham v District Collector Tirunvelveli TN, (2010) 1 SCC (Cr) 401 : (2009) 10 SCC",
664 [LNIND 2009 SC 1659] : (2009) 12 SCR 1215 [LNIND 2009 SC 1659] .,
"347. Ins. by Act 27 of 1870, section 8.",
"348. Banshidhar Swain v State of Orissa, 1987 Cr LJ 1819 (Ori).",
"349. Debi, (1907) 29 All 377 .",
"350. Girja Shankar Sahay, 1972 Cr LJ 988 (Pat).",
"351. Banshidhar Swain v State of Orissa, 1987 Cr LJ 1819 (Ori).",
"352. Tafaullah v State, (1885) 12 Cal 190 .",
"353. Gurdeep Singh v State of Punjab, 2009 Cr LJ 3745 (PH).",
THE INDIAN PENAL CODE,
CHAPTER XI OF FALSE EVIDENCE AND OFFENCES AGAINST PUBLIC,
JUSTICE,
"Under the Indian Penal Code, 1860 offences relating to false evidence and offences",
against public justice are contained in Chapter XI. In relation to proceeding in any,
"Court, the offences enumerated are: giving false evidence or fabricating false evidence",
(sections 191–193); giving or fabricating false evidence with intent to procure,
conviction (sections 194 and 195); threatening any person to give false evidence,
(section 195A); using evidence known to be false (section 196); using as true a,
certificate known to be false (section 198); making a false statement in a declaration,
which is by law receivable as evidence (section 199); using as true any declaration,
"receivable as evidence, knowing it to be false (section 200); causing disappearance of",
"evidence of offence, or giving false information to screen offender (section 201);",
intentional omission to give information of offence by person bound to inform (section,
202); giving false information in respect of an offence (section 203); destruction of,
document or electronic record to prevent its production as evidence (section 204);,
false personation (section 205); fraudulent removal/concealment of property (section,
206); fraudulent claim to property (section 207); fraudulently suffering or obtaining,
decree for sum not due (section 208 and section 210); dishonestly making a false,
claim in Court (section 209); and intentional insult or interruption to public servant,
sitting in judicial proceedings (section 228). Section 195 of Code of Criminal Procedure,
provides that no Court shall take cognizance of any offence punishable under section,
172–188 (dealing with the contempt of the lawful authority of public servants) or,
"section 193–196, 199, 200, 205–211 and 228, when such offence is alleged to have",
"been committed in, or in relation to, any proceeding in any Court, except on the",
complaint in writing of that Court by such officer of the Court as that Court may,
"authorise in writing in this behalf, or of some other Court to which that Court is",
subordinate.1.,
[s 224] Resistance or obstruction by a person to his lawful apprehension.,
Whoever intentionally offers any resistance or illegal obstruction to the lawful,
apprehension of himself for any offence with which he is charged or of which he has,
"been convicted, or escapes or attempts to escape from any custody in which he is",
"lawfully detained for any such offence, 1 shall be punished with imprisonment of",
"either description for a term which may extend to two years, or with fine, or with both.",
Explanation.—The punishment in this section is in addition to the punishment for,
which the person to be apprehended or detained in custody was liable for the offence,
"with which he was charged, or of which he was convicted.",
COMMENT.—,
This and the section following relate to resistance or illegal obstruction offered to the,
lawful apprehension of any person. Sections 221–223 punish public servants who fail,
to apprehend or confine persons liable to be apprehended or confined.,
"Section 224, IPC, 1860 has two distinct parts. The first relates to resistance to",
apprehension and the second part relates to escape from custody. In order to bring,
"home the guilt of the accused under first part, the prosecution is to prove the following",
ingredients:—,
(1) that the accused was charged or convicted;,
(2) that he offered resistance or obstruction to his apprehension;,
(3) that such resistance or obstruction was illegal; and,
(4) that the accused offered such resistance or obstruction illegally.,
"When the offence charged is that of escape or attempt to escape from custody, the",
prosecution is to prove the following:,
(1) that the accused was taken into custody for commission of an offence;,
(2) that such detention in custody was lawful;,
(3) that the accused escaped from such custody or made an attempt to do so; and,
(4) that the accused did so intentionally.354.,
1. 'Escapes...from any custody in which he is lawfully detained for any such offence'.—,
Escape must be from the custody in which the person escaping has been detained,
"legally. A person of the same name as the offender was arrested, tried and acquitted.",
Whilst under arrest he escaped from custody. It was held that he was not liable to be,
convicted under this section because he was not lawfully detained for any offence.355.,
It is only after a person has been arrested that the question of custody arises merely,
because the person was brought to the thana for the purpose of interrogation it could,
"not be said that he was under lawful custody, even though two constables might be",
sitting by his side.356. Where certain persons were apprehended for gaming and they,
"escaped from police custody, it was pointed out by the Supreme Court that they could",
have been convicted under this section.357. Where the accused attacked the police,
personnel and rescued a person from the legal custody of the police but the person,
"rescued neither resisted the arrest nor joined in the attack, he could only be convicted",
under section 224 for taking advantage of his release.358. Where an accused lawfully,
"arrested escaped after causing a knife injury to the Head Constable, he was guilty",
under section 224 and his friends who pelted stones at the police party with a view to,
"rescue him were guilty under section 225, IPC, 1860.359.",
[s 224.1] Explanation.—,
The Explanation does not require that a sentence of imprisonment must be made to,
run consecutively to a sentence imposed for the main offence of which the accused,
has been convicted.360.,
"1. S Palani Velayutham v District Collector Tirunvelveli TN, (2010) 1 SCC (Cr) 401 : (2009) 10 SCC",
664 [LNIND 2009 SC 1659] : (2009) 12 SCR 1215 [LNIND 2009 SC 1659] .,
"354. State of Orissa v Purna Chandra Jena, 2005 Cr LJ 505 (Ori).",
"355. Ganga Charan Singh, (1893) 21 Cal 337 ; People's Union for Civil Liberties v State of",
"Maharashtra, 1998 Cr LJ 2138 (Bom).",
"356. Maheswar v State of UP, (1953) Cut 751.; 2003 Cr LJ 3663 (Bom).",
"357. Ajab v State of Maharashtra, AIR 1989 SC 827 : 1989 Cr LJ 954 : 1989 Supp (1) 601 .",
"358. Prithvi Nath Pandey v State of UP, 1994 Cr LJ 3623 (All).",
"359. Vaghari Kala Bhikha, 1985 Cr LJ 237 (Guj).",
"360. Chokhu, (1934) 36 Bom LR 963 .",
THE INDIAN PENAL CODE,
CHAPTER XI OF FALSE EVIDENCE AND OFFENCES AGAINST PUBLIC,
JUSTICE,
"Under the Indian Penal Code, 1860 offences relating to false evidence and offences",
against public justice are contained in Chapter XI. In relation to proceeding in any,
"Court, the offences enumerated are: giving false evidence or fabricating false evidence",
(sections 191–193); giving or fabricating false evidence with intent to procure,
conviction (sections 194 and 195); threatening any person to give false evidence,
(section 195A); using evidence known to be false (section 196); using as true a,
certificate known to be false (section 198); making a false statement in a declaration,
which is by law receivable as evidence (section 199); using as true any declaration,
"receivable as evidence, knowing it to be false (section 200); causing disappearance of",
"evidence of offence, or giving false information to screen offender (section 201);",
intentional omission to give information of offence by person bound to inform (section,
202); giving false information in respect of an offence (section 203); destruction of,
document or electronic record to prevent its production as evidence (section 204);,
false personation (section 205); fraudulent removal/concealment of property (section,
206); fraudulent claim to property (section 207); fraudulently suffering or obtaining,
decree for sum not due (section 208 and section 210); dishonestly making a false,
claim in Court (section 209); and intentional insult or interruption to public servant,
sitting in judicial proceedings (section 228). Section 195 of Code of Criminal Procedure,
provides that no Court shall take cognizance of any offence punishable under section,
172–188 (dealing with the contempt of the lawful authority of public servants) or,
"section 193–196, 199, 200, 205–211 and 228, when such offence is alleged to have",
"been committed in, or in relation to, any proceeding in any Court, except on the",
complaint in writing of that Court by such officer of the Court as that Court may,
"authorise in writing in this behalf, or of some other Court to which that Court is",
subordinate.1.,
[s 225] Resistance or obstruction to lawful apprehension of another person.,
Whoever intentionally offers any resistance or illegal obstruction to the lawful,
"apprehension of any other person for an offence, or rescues or attempts to rescue any",
other person from any custody in which that person is lawfully detained for an,
"offence, shall be punished with imprisonment of either description for a term which",
"may extend to two years, or with fine, or with both;",
"or, if the person to be apprehended, or the person rescued or attempted to be rescued,",
is charged with or liable to be apprehended for an offence punishable with 361.,
"[imprisonment for life] or imprisonment for a term which may extend to ten years,",
shall be punished with imprisonment of either description for a term which may,
"extend to three years, and shall also be liable to fine;",
"or, if the person to be apprehended or the person attempted to be rescued, is charged",
"with or liable to be apprehended for an offence punishable with death, shall be",
punished with imprisonment of either description for a term which may extend to,
"seven years, and shall also be liable to fine;",
"or, if the person to be apprehended or rescued, or attempted to be rescued, is liable",
"under the sentence of a Court of Justice, or by virtue of a commutation of such a",
"sentence, to 362.[imprisonment for life] 363.[***] 364.[***] 365.[***]or imprisonment, for",
"a term of ten years or upwards, shall be punished with imprisonment of either",
"description for a term which may extend to seven years, and shall also be liable to",
fine;,
"or, if the person to be apprehended or rescued, or attempted to be rescued, is under",
"sentence of death, shall be punished with imprisonment for life or imprisonment of",
"either description for a term not exceeding ten years, and shall also be liable to fine.",
COMMENT.—,
Persons who offer resistance or illegal obstruction to the apprehension of other,
persons who have committed offences are punishable under this section. The,
preceding section punishes the offenders themselves. Section 130 deals with rescuing,
"a prisoner of State or war and section 186, with rescuing in any other case.",
'Rescue' is the act of forcibly freeing a person from custody against the will of those,
who have him in custody.366. It has no application to a person who is in lawful custody,
and who has offered no resistance or obstruction.367. It is also not necessary that the,
rescuing should be done intentionally for in the second part of this section the word,
"""intentionally"" has been deliberately omitted. Thus where a person even in order to",
pacify a situation released an accused from the lawful custody of the chowkidar by,
"untying the turban with which the accused had been tied, it was held that the person so",
"releasing the accused was clearly guilty of an offence under section 225, IPC, 1860, for",
rescuing an offender from lawful custody.368.,
One can be held guilty for an offence under section 225 if he rescues a person who,
"was detained lawfully. Here the word 'rescue' though not defined in the Code, will",
always mean an act of getting a person free forcibly from custody against the will of,
"person in whose lawful custody he was. Therefore, some overt act needs to be there, if",
one is said to have rescued a person from the lawful custody.369.,
Where the accused obstructed the lawful apprehension of a person and wrongfully,
confined two police personnel and the evidence of the prosecution was amply,
"corroborated and supported by medical evidence, conviction and sentence of the",
"accused under sections 225, 332 and 342 was upheld.370. The act for which the person",
rescued is detained must amount to an offence under the Code. Thus an escape from,
custody when being taken before a Magistrate for the purpose of being bound over to,
"be of good behaviour,371. or an escape from arrest under section 41(2), Criminal",
"Procedure Code,372. will not fall under this section. If the apprehension is not lawful the",
person resisting it will not be guilty of any offence.373.,
"1. S Palani Velayutham v District Collector Tirunvelveli TN, (2010) 1 SCC (Cr) 401 : (2009) 10 SCC",
664 [LNIND 2009 SC 1659] : (2009) 12 SCR 1215 [LNIND 2009 SC 1659] .,
"361. Subs. by Act 26 of 1955, section 117 and Sch, for ""transportation for life"" (w.e.f. 1 January",
1956).,
362. Ibid.,
"363. The words ""or to"" omitted by Act 36 of 1957, section 3 and Sch II (w.e.f. 17 September",
1957).,
"364. The word ""transportation"" omitted by Act 26 of 1955, section 117 and Sch (w.e.f. 1 January",
1956).,
"365. The words ""penal servitude"" omitted by Act 17 of 1949, section 2 (w.e.f. 6 April 1949).",
"366. Vaghari Kala Bhikha, 1985 Cr LJ 237 (Guj).",
"367. Salim, 1972 Cr LJ 1454 (Guj).",
"368. Awadhesh Mahato, 1979 Cr LJ 1275 (Pat).",
"369. Radha Sah v State of Jharkhand, 2007 Cr LJ 2805 (Jha).",
"370. Prithvi Nath Pandey v State of UP, 1994 Cr LJ 3623 (All).",
"371. Shasti Churn Napit, (1882) 8 Cal 331 .",
"372. Kandhaia, (1884) 7 All 67 .",
"373. PB Gosain v State, (1962) 1 Cr LJ 91 ; Kunju Kunju, (1962) 2 Cr LJ 437 . Matha Yadav v State",
"of Bihar, 2002 Cr LJ 2819 : AIR 2002 SC 2137 [LNIND 2002 SC 359] , the accused was caught",
red-handed when he was uprooting the crops of the victim's family. They refused to release him,
"till he was brought before the village panchayat, They were not intending to hand him over to",
police. It was held that their conviction under section 225 was not possible.,
THE INDIAN PENAL CODE,
CHAPTER XI OF FALSE EVIDENCE AND OFFENCES AGAINST PUBLIC,
JUSTICE,
"Under the Indian Penal Code, 1860 offences relating to false evidence and offences",
against public justice are contained in Chapter XI. In relation to proceeding in any,
"Court, the offences enumerated are: giving false evidence or fabricating false evidence",
(sections 191–193); giving or fabricating false evidence with intent to procure,
conviction (sections 194 and 195); threatening any person to give false evidence,
(section 195A); using evidence known to be false (section 196); using as true a,
certificate known to be false (section 198); making a false statement in a declaration,
which is by law receivable as evidence (section 199); using as true any declaration,
"receivable as evidence, knowing it to be false (section 200); causing disappearance of",
"evidence of offence, or giving false information to screen offender (section 201);",
intentional omission to give information of offence by person bound to inform (section,
202); giving false information in respect of an offence (section 203); destruction of,
document or electronic record to prevent its production as evidence (section 204);,
false personation (section 205); fraudulent removal/concealment of property (section,
206); fraudulent claim to property (section 207); fraudulently suffering or obtaining,
decree for sum not due (section 208 and section 210); dishonestly making a false,
claim in Court (section 209); and intentional insult or interruption to public servant,
sitting in judicial proceedings (section 228). Section 195 of Code of Criminal Procedure,
provides that no Court shall take cognizance of any offence punishable under section,
172–188 (dealing with the contempt of the lawful authority of public servants) or,
"section 193–196, 199, 200, 205–211 and 228, when such offence is alleged to have",
"been committed in, or in relation to, any proceeding in any Court, except on the",
complaint in writing of that Court by such officer of the Court as that Court may,
"authorise in writing in this behalf, or of some other Court to which that Court is",
subordinate.1.,
"[s 225A] Omission to apprehend or sufferance of escape, on part of public",
"servant, in cases not otherwise provided for.",
"[Whoever, being a public servant legally bound as such public servant to apprehend, or",
"to keep in confinement, any person in any case not provided for in section 221,",
"section 222 or section 223, or in any other law for the time being in force, omits to",
"apprehend that person or suffers him to escape from confinement, shall be punished",
—,
"(a) if he does so intentionally, with imprisonment of either description for a term",
"which may extend to three years, or with fine, or with both; and",
"(b) if he does so negligently, with simple imprisonment for a term which may",
"extend to two years, or with fine, or with both.]",
COMMENT.—,
This section punishes intentional or negligent omission to apprehend on the part of a,
"public servant not coming within the purview of sections 221, 222 or 223.",
"1. S Palani Velayutham v District Collector Tirunvelveli TN, (2010) 1 SCC (Cr) 401 : (2009) 10 SCC",
664 [LNIND 2009 SC 1659] : (2009) 12 SCR 1215 [LNIND 2009 SC 1659] .,
THE INDIAN PENAL CODE,
CHAPTER XI OF FALSE EVIDENCE AND OFFENCES AGAINST PUBLIC,
JUSTICE,
"Under the Indian Penal Code, 1860 offences relating to false evidence and offences",
against public justice are contained in Chapter XI. In relation to proceeding in any,
"Court, the offences enumerated are: giving false evidence or fabricating false evidence",
(sections 191–193); giving or fabricating false evidence with intent to procure,
conviction (sections 194 and 195); threatening any person to give false evidence,
(section 195A); using evidence known to be false (section 196); using as true a,
certificate known to be false (section 198); making a false statement in a declaration,
which is by law receivable as evidence (section 199); using as true any declaration,
"receivable as evidence, knowing it to be false (section 200); causing disappearance of",
"evidence of offence, or giving false information to screen offender (section 201);",
intentional omission to give information of offence by person bound to inform (section,
202); giving false information in respect of an offence (section 203); destruction of,
document or electronic record to prevent its production as evidence (section 204);,
false personation (section 205); fraudulent removal/concealment of property (section,
206); fraudulent claim to property (section 207); fraudulently suffering or obtaining,
decree for sum not due (section 208 and section 210); dishonestly making a false,
claim in Court (section 209); and intentional insult or interruption to public servant,
sitting in judicial proceedings (section 228). Section 195 of Code of Criminal Procedure,
provides that no Court shall take cognizance of any offence punishable under section,
172–188 (dealing with the contempt of the lawful authority of public servants) or,
"section 193–196, 199, 200, 205–211 and 228, when such offence is alleged to have",
"been committed in, or in relation to, any proceeding in any Court, except on the",
complaint in writing of that Court by such officer of the Court as that Court may,
"authorise in writing in this behalf, or of some other Court to which that Court is",
subordinate.1.,
"[s 225B] Resistance or obstruction to lawful apprehension, or escape or",
"rescue, in cases not otherwise provided for.",
"[Whoever, in any case not provided for in section 224 or section 225 or in any other",
"law for the time being in force, intentionally offers any resistance or illegal",
"obstruction to the lawful apprehension of himself or of any other person, or escapes",
"or attempts to escape from any custody in which he is lawfully detained, or rescues 1",
or attempts to rescue any other person from any custody in which that person is,
"lawfully detained, shall be punished with imprisonment of either description for a",
"term which may extend to six months, or with fine, or with both.]",
COMMENT.—,
This section is intended to meet cases not covered by section 224 or section 225.,
"Under section 225 a person, escaping from custody when being taken before a",
"Magistrate for the purpose of being bound over to be of good behaviour, or escaping",
from a jail in which he is confined by reason of his having failed to furnish security to,
"be of good behaviour,374. cannot be punished; under this section he can.",
There must be an overt act of resistance or obstruction. If a person runs away to avoid,
"an arrest, his act does not amount to resistance or obstruction.375.",
The apprehension or detention must be lawful. If the warrant is defective the rescue of,
the person arrested under such warrant is no offence under this section. The liberty of,
"the subject cannot be trifled with, and every person can require by right that the Court",
ordering his arrest shall observe the law.376.,
1. 'Rescues'.—Rescuing indicates some positive overt act on the part of the accused by,
which the liberation of the person arrested is effected.377.,
[s 225B.1] CASES.—,
"Resistance to arrest without warrant justifiable.—An arrest by a police-officer, without",
notifying the substance of the warrant to the person against whom the warrant is,
"issued, as required by section 80 of the Criminal Procedure Code, is not a lawful arrest,",
"and resistance to such an arrest is no offence under this section.378. A person, about to",
"be arrested, is entitled to know under what power the constable is arresting him and, if",
"he specifies a certain power which the person knows the constable has not got, he is",
"entitled to object to such arrest and escape from custody, such custody not being a",
lawful one. For a charge of escaping from lawful custody the prosecution must first,
establish that the constable who arrested the man had power to act under the specific,
authority that he claimed to have.379.,
[s 225B.2] Resistance to improper warrant justifiable.—,
A person cannot be arrested under sections 225B and 353 when the warrant attempted,
to be executed was addressed to the person with a wrong description to which he did,
"not answer,380. or when it was illegal owing to want of the seal of the Court,381. or",
"when it did not contain the name of the person to be arrested,382. or for any other",
"defect.383. But even if a Court has wrongly exercised its discretion in issuing a warrant,",
an accused escaping from the custody of the peon apprehending him or obstructing,
"his apprehension would be guilty under this section.384. This is, however, not to say",
"that an outright illegality in issuing the warrant too would have no consequence. Thus,",
where the warrant was signed by a sheristadar who had no authority to sign the,
"warrant, it was held by offering resistance to arrest under such an illegal warrant the",
accused did not come under the mischief of this section.385.,
[s 225B.3] Escape must be from lawful custody.—,
"The accused was arrested by a Process-Server, and after the arrest he managed to",
"escape from custody, went inside his house, shut himself up there, and refused to",
"come out. It was held that an offence under section 186 was not established, but that",
the accused was guilty of the offence of escaping from lawful custody under this,
section.386. But when the accused was merely requested by the Amin of the Civil Court,
to accompany him to the Court and the accused was not informed that he was being,
"put under arrest, it was held that the accused committed no offence under this section",
by refusing to accompany the Amin.387.,
"1. S Palani Velayutham v District Collector Tirunvelveli TN, (2010) 1 SCC (Cr) 401 : (2009) 10 SCC",
664 [LNIND 2009 SC 1659] : (2009) 12 SCR 1215 [LNIND 2009 SC 1659] .,
"374. Muli v State, (1920) 43 All 185 .",
"375. Annaudin, (1923) 1 Ran 218.",
"376. Fattu, (1932) 55 All 109 , 111, 112.",
"377. Thangal, AIR 1961 Ker 331 [LNIND 1960 KER 261] .",
"378. Satish Chandra Rai v Jodu Nandan Singh, (1899) 26 Cal 748 .",
"379. Appasami Mudaliar, (1924) 47 Mad 442.",
"380. Debi Singh, (1901) 28 Cal 399 .",
"381. Mahajan Sheikh, (1914) 42 Cal 708 .",
"382. Jogendra Nath Laskar v Hiralal, (1924) 51 Cal 902 .",
"383. Gokal v State, (1922) 45 All 142 ; Gaman, (1913) PR No. 16 of 1913; Muhammad Baksh,",
(1904) PR No. 16 of 1904.,
"384. Puna Mahton, (1932) 11 Pat 743.",
"385. I Venkayya v State, 1973 Cr LJ 245 (AP). See also Subbramaniah, AIR 1934 Mad 206 [LNIND",
1934 MAD 4] .,
"386. Jamna Das, (1927) 9 Lah 214.",
"387. Heer Singh, AIR 1961 Raj 156 [LNIND 1960 RAJ 162] .",
THE INDIAN PENAL CODE,
CHAPTER XI OF FALSE EVIDENCE AND OFFENCES AGAINST PUBLIC,
JUSTICE,
"Under the Indian Penal Code, 1860 offences relating to false evidence and offences",
against public justice are contained in Chapter XI. In relation to proceeding in any,
"Court, the offences enumerated are: giving false evidence or fabricating false evidence",
(sections 191–193); giving or fabricating false evidence with intent to procure,
conviction (sections 194 and 195); threatening any person to give false evidence,
(section 195A); using evidence known to be false (section 196); using as true a,
certificate known to be false (section 198); making a false statement in a declaration,
which is by law receivable as evidence (section 199); using as true any declaration,
"receivable as evidence, knowing it to be false (section 200); causing disappearance of",
"evidence of offence, or giving false information to screen offender (section 201);",
intentional omission to give information of offence by person bound to inform (section,
202); giving false information in respect of an offence (section 203); destruction of,
document or electronic record to prevent its production as evidence (section 204);,
false personation (section 205); fraudulent removal/concealment of property (section,
206); fraudulent claim to property (section 207); fraudulently suffering or obtaining,
decree for sum not due (section 208 and section 210); dishonestly making a false,
claim in Court (section 209); and intentional insult or interruption to public servant,
sitting in judicial proceedings (section 228). Section 195 of Code of Criminal Procedure,
provides that no Court shall take cognizance of any offence punishable under section,
172–188 (dealing with the contempt of the lawful authority of public servants) or,
"section 193–196, 199, 200, 205–211 and 228, when such offence is alleged to have",
"been committed in, or in relation to, any proceeding in any Court, except on the",
complaint in writing of that Court by such officer of the Court as that Court may,
"authorise in writing in this behalf, or of some other Court to which that Court is",
subordinate.1.,
[s 226] [Omitted],
"[* * *] [Omitted]. [by Act XXVI of 1955, section 117 and Sch.]",
"1. S Palani Velayutham v District Collector Tirunvelveli TN, (2010) 1 SCC (Cr) 401 : (2009) 10 SCC",
664 [LNIND 2009 SC 1659] : (2009) 12 SCR 1215 [LNIND 2009 SC 1659] .,
THE INDIAN PENAL CODE,
CHAPTER XI OF FALSE EVIDENCE AND OFFENCES AGAINST PUBLIC,
JUSTICE,
"Under the Indian Penal Code, 1860 offences relating to false evidence and offences",
against public justice are contained in Chapter XI. In relation to proceeding in any,
"Court, the offences enumerated are: giving false evidence or fabricating false evidence",
(sections 191–193); giving or fabricating false evidence with intent to procure,
conviction (sections 194 and 195); threatening any person to give false evidence,
(section 195A); using evidence known to be false (section 196); using as true a,
certificate known to be false (section 198); making a false statement in a declaration,
which is by law receivable as evidence (section 199); using as true any declaration,
"receivable as evidence, knowing it to be false (section 200); causing disappearance of",
"evidence of offence, or giving false information to screen offender (section 201);",
intentional omission to give information of offence by person bound to inform (section,
202); giving false information in respect of an offence (section 203); destruction of,
document or electronic record to prevent its production as evidence (section 204);,
false personation (section 205); fraudulent removal/concealment of property (section,
206); fraudulent claim to property (section 207); fraudulently suffering or obtaining,
decree for sum not due (section 208 and section 210); dishonestly making a false,
claim in Court (section 209); and intentional insult or interruption to public servant,
sitting in judicial proceedings (section 228). Section 195 of Code of Criminal Procedure,
provides that no Court shall take cognizance of any offence punishable under section,
172–188 (dealing with the contempt of the lawful authority of public servants) or,
"section 193–196, 199, 200, 205–211 and 228, when such offence is alleged to have",
"been committed in, or in relation to, any proceeding in any Court, except on the",
complaint in writing of that Court by such officer of the Court as that Court may,
"authorise in writing in this behalf, or of some other Court to which that Court is",
subordinate.1.,
[s 227] Violation of condition of remission of punishment.,
"Whoever, having accepted any conditional remission of punishment, knowingly",
"violates any condition on which such remission was granted, shall be punished with",
"the punishment to which he was originally sentenced, if he has already suffered no",
"part of that punishment, and if he has suffered any part of that punishment, then with",
so much of that punishment as he has not already suffered.,
COMMENT.—,
This section deals with those cases in which remission of punishment is made,
conditional by Government under section 432 of the Code of Criminal Procedure.,
"Section 227 of the IPC, 1860 makes it a specific offence on the part of any person who",
has accepted any conditional remission of punishment if he knowingly violates any,
condition on which such remission was granted. In other words while the Code of,
Criminal Procedure envisages arrest of a person who violates the conditions of,
"remission and remand straightway to jail, section 227 of the IPC, 1860 envisages for",
"the same act of violation of conditions, prosecution and the punishment, if the",
"prosecution succeeds, is the same, as the consequence contemplated under section",
"432 (3), namely, remanding of the person concerned for the rest of his term.388.",
"1. S Palani Velayutham v District Collector Tirunvelveli TN, (2010) 1 SCC (Cr) 401 : (2009) 10 SCC",
664 [LNIND 2009 SC 1659] : (2009) 12 SCR 1215 [LNIND 2009 SC 1659] .,
"388. Krishnan Nair v State, 1983 Cr LJ 87 .",
THE INDIAN PENAL CODE,
CHAPTER XI OF FALSE EVIDENCE AND OFFENCES AGAINST PUBLIC,
JUSTICE,
"Under the Indian Penal Code, 1860 offences relating to false evidence and offences",
against public justice are contained in Chapter XI. In relation to proceeding in any,
"Court, the offences enumerated are: giving false evidence or fabricating false evidence",
(sections 191–193); giving or fabricating false evidence with intent to procure,
conviction (sections 194 and 195); threatening any person to give false evidence,
(section 195A); using evidence known to be false (section 196); using as true a,
certificate known to be false (section 198); making a false statement in a declaration,
which is by law receivable as evidence (section 199); using as true any declaration,
"receivable as evidence, knowing it to be false (section 200); causing disappearance of",
"evidence of offence, or giving false information to screen offender (section 201);",
intentional omission to give information of offence by person bound to inform (section,
202); giving false information in respect of an offence (section 203); destruction of,
document or electronic record to prevent its production as evidence (section 204);,
false personation (section 205); fraudulent removal/concealment of property (section,
206); fraudulent claim to property (section 207); fraudulently suffering or obtaining,
decree for sum not due (section 208 and section 210); dishonestly making a false,
claim in Court (section 209); and intentional insult or interruption to public servant,
sitting in judicial proceedings (section 228). Section 195 of Code of Criminal Procedure,
provides that no Court shall take cognizance of any offence punishable under section,
172–188 (dealing with the contempt of the lawful authority of public servants) or,
"section 193–196, 199, 200, 205–211 and 228, when such offence is alleged to have",
"been committed in, or in relation to, any proceeding in any Court, except on the",
complaint in writing of that Court by such officer of the Court as that Court may,
"authorise in writing in this behalf, or of some other Court to which that Court is",
subordinate.1.,
[s 228] Intentional insult or interruption to public servant sitting in judicial,
proceeding.,
"Whoever intentionally offers any insult, or causes any interruption to any public",
"servant, while such public servant is sitting in any stage of a judicial proceeding, shall",
"be punished with simple imprisonment for a term which may extend to six months, or",
"with fine which may extend to one thousand rupees, or with both.",
STATE AMENDMENT,
"Andhra Pradesh.— Offence under section 228 is cognizable. [Vide A.P.G.O. Ms. No. 732,",
"dated 5th December, 1991].",
COMMENT.—,
The object of this section is to punish a person who intentionally insults in any way the,
Court administering justice. It lays down the highest sentence that can be inflicted for,
contempt of Court. By a notification under section 10(1) of The Criminal Law,
"Amendment Act, 1932 the State Government can make an offence under section 228,",
"IPC, 1860, a cognizable offence for a specified area for such time as the notification",
"remains in force. No Court shall take cognizance of the offence under section 228,",
"when such offence is alleged to have been committed in, or in relation to, any",
"proceeding in any Court, except on the complaint in writing of that Court by such officer",
"of the Court as that Court may authorise in writing in this behalf, or of some other Court",
to which that Court is sub-ordinate.389.,
[s 228.1] Ingredients.—,
"The essential ingredients of the offence under this section are— (1) intention, (2) insult",
or interruption to a public servant and (3) the public servant insulted or interrupted,
must be sitting in any stage of a judicial proceeding.390. The fact that the Court feels,
insulted is no reason for holding that any insult is intended.391.,
The whole sitting of a Court for the disposal of judicial work from the opening to the,
"rising of the Court is a judicial proceeding, and the necessary interval between the",
conclusion of one case and the opening of another is a stage in a judicial,
proceeding.392.,
"Acts, such as rude and contumelious behaviour, obstinacy, perverseness, prevarication,",
"or refusal to answer any lawful question, breach of the peace or any wilful disturbance",
"whatever, will amount to contempt of Court.",
If the offence of contempt of Court is summarily dealt with under section 345 of the,
"Criminal Procedure Code, the maximum punishment that can be imposed is fine not",
exceeding Rs. 200.,
The offence under the section is not punishable as contempt of Court. The definition of,
"""criminal contempt"" in section 2(c) of The Contempt of Courts Act, 1971 includes acts",
"which constitute an offence under section 228, IPC, 1860 and also goes beyond such",
"acts, being wider than section 228.393.",
[s 228.2] CASES.—Contempt.—,
A person persisting in putting irrelevant and vexatious questions to a witness after,
"warning;394. a person making an impertinent threat to a witness in the box,395. a",
person sentenced to two hours' imprisonment and ordered to be kept in custody,
"insulting the Judge in the grossest manner;396. a person calling the trial Judge as ""a",
"prejudiced judge;""397. a person stating in an application for transfer of a case that the",
Court had become hostile to him;398. and a person insisting upon staying in the Court,
room after the presiding officer of the Court had asked him to leave the Court and after,
"he had been warned that action for contempt of Court would be taken against him,399.",
were all held guilty of contempt of Court under this section. A Commissioner appointed,
by the Court being a public servant a person who intentionally insults or interrupts him,
"while he is sitting in a judicial proceeding commits an offence under section 228, IPC,",
"1860, and should be punished under that section and not under section 345, Cr PC,",
1973.400. Hurling of shoes by an Advocate at the presiding officer of the Court was,
contempt. Where the party to a case shouted inside a Court room in offensive language,
as the presiding officer told that after filing of the rejoinder by the opposite party,
"arguments were closed, summary contempt proceedings under section 480 (now",
"section 345) Cr PC, 1973, read with section 228, IPC, 1860, were fully justified though in",
view of the written apology tendered then and there the party should not be convicted,
"under section 228, IPC, 1860.401.",
[s 228.3] Refusal to answer question.—,
Prevarication by a witness and refusal to answer a question amount to intentional,
interruption within the meaning of the section.402.,
[s 228.4] No contempt.—,
A person leaving the Court when ordered to remain;403. or making signs from outside,
to a prisoner on his trial;404. a person listening to evidence after being told to leave the,
Court;405. a person using vulgar language for the purpose of emphasis;406. a person,
walking out of the Court without answering the question whether he had any,
witness;407. a person giving away in marriage a minor girl while she was in the custody,
of a guardian appointed by the Court;408. a person appearing as an assessor in Court,
dressed in a shirt and a cap;409. a person writing a letter to a Judge imputing an,
"unlawful act causing loss to him,410. and a pleader saying that he 'resented' the remark",
"of the Court and that another remark was 'improper', and that a certain action of the",
"Court was 'strange',411. were held to have committed no offence under this section.",
[s 228.5] Allocation of sitting accommodation in Court room.—,
"A litigant, conducting his case without the aid of counsel, was occupying the seat in the",
Court room meant for the advocates while senior advocates were standing. He refused,
to vacate the seat when asked to do so by the presiding officer. His conviction under,
section 228 was upheld.412.,
[s 228.6] Free legal assistance.—,
It was held in Shrichand v State of MP that the right to free legal assistance has to be,
confined to the offences that are punishable with substantive sentence of,
imprisonment. The right to free legal assistance at the State cost could not be,
"extended to an offence under section 228, IPC, 1860 of which the accused was being",
tried summarily because on conviction he could not have been visited with any,
substantive imprisonment.413.,
[s 228.7] Insult to Court.—,
Several accused persons faced a trial and were found guilty of various offences. One of,
"them, on hearing the judgment, addressed to the Court and uttered filthy abuses and",
made contemptuous statements. The Court said that it amounted to an insult of the,
Court. The Court had jurisdiction under the section to punish the accused.414. Where,
an accused wrote a letter to the Magistrate asking him for the reasons as to why he,
"had returned the petition filed by him and also requested him, to give a copy of the",
"document connected with the case, Magistrate found him to be guilty of offence under",
"section 228, IPC, 1860. But the Madras High Court set aside the judgment by holding",
that it may not be said that the letter has been received by the judicial officer when he,
"was in any stage of the proceedings in Court and, therefore, the offence under section",
"228, IPC, 1860 is not be made out.415.",
"1. S Palani Velayutham v District Collector Tirunvelveli TN, (2010) 1 SCC (Cr) 401 : (2009) 10 SCC",
664 [LNIND 2009 SC 1659] : (2009) 12 SCR 1215 [LNIND 2009 SC 1659] .,
"389. S Palani Velayutham v District Collector Tirunvelveli TN, (2010) 1 SCC (Cr) 401 : (2009) 10",
SCC 664 [LNIND 2009 SC 1659] : (2009) 12 SCR 1215 [LNIND 2009 SC 1659] : JT 2009 (12) SC,
485 [LNIND 2009 SC 1659] : 2009 (11) Scale 658 [LNIND 2009 SC 1659] .,
"390. Revashankar, AIR 1959 SC 102 [LNIND 1958 SC 110] : (1958) Cr LJ 251 .",
"391. Pranlal, 1966 Cr LJ 1087 .",
"392. Salig Ram v State, (1898) PR No. 16 of 1897.",
"393. Daroga Singh v BK Pandey, (2004) 5 SCC 26 [LNIND 2004 SC 485] : 2004 Cr LJ 2084 : AIR",
2004 SC 2579 [LNIND 2004 SC 485] .,
"394. Azeemoola, (1867) PR No. 44 of 1867.",
"395. Allu, (1922) 45 All 272 .",
"396. Venkatasami, (1891) 15 Mad 131.",
"397. Venkatrao v State, (1922) 24 Bom LR 386 [LNIND 1922 BOM 43] , 46 Bom 973.",
"398. Narotam Das, (1943) All 186 .",
"399. Rameshwar, 1960 Cr LJ 976 .",
"400. CK Nanavati, 1978 Cr LJ 1040 (Guj).",
"401. State of UP v Pateswari Prasad, 1980 Cr LJ NOC 1 (All).",
"402. Jaimal Shravan, (1873) 10 BHC 69; Gopi Chand, (1917) PR No. 14 of 1918.",
403. (1870) 1 Weir 215.,
404. (1870) 1 Weir 214.,
"405. Papa Naiken, (1882) 1 Weir 217.",
406. (1880) 1 Weir 216.,
"407. Abdul Rahiman, (1899) 1 Weir 218.",
"408. Kaulashia, (1932) 12 Pat 1, the offence committed was disobedience of a lawful order.",
"409. Chhaganlal Ishwardas, (1933) 35 Bom LR 1025 .",
"410. Subordinate Judge, Hoshangabad v Jawaharlal, (1941) Nag 304.",
"411. Hakumat Rai, (1942) 24 Lah 791.",
"412. Omana v State of Kerala, 1994 Cr LJ 687 (Ker). Another similar ruling is PC Jose v",
"Nandakumar, AIR 1997 Ker 243 [LNIND 1993 KER 251] .",
413. 1993 Cr LJ 495 (MP).,
"414. Ram Vishal Re, 1997 Cr LJ 3736 (MP).",
"415. C R Rajasekaran, v Judicial Magistrate, Nagapattinam, 2003 Cr LJ 4024 (Mad).",
THE INDIAN PENAL CODE,
CHAPTER XI OF FALSE EVIDENCE AND OFFENCES AGAINST PUBLIC,
JUSTICE,
"Under the Indian Penal Code, 1860 offences relating to false evidence and offences",
against public justice are contained in Chapter XI. In relation to proceeding in any,
"Court, the offences enumerated are: giving false evidence or fabricating false evidence",
(sections 191–193); giving or fabricating false evidence with intent to procure,
conviction (sections 194 and 195); threatening any person to give false evidence,
(section 195A); using evidence known to be false (section 196); using as true a,
certificate known to be false (section 198); making a false statement in a declaration,
which is by law receivable as evidence (section 199); using as true any declaration,
"receivable as evidence, knowing it to be false (section 200); causing disappearance of",
"evidence of offence, or giving false information to screen offender (section 201);",
intentional omission to give information of offence by person bound to inform (section,
202); giving false information in respect of an offence (section 203); destruction of,
document or electronic record to prevent its production as evidence (section 204);,
false personation (section 205); fraudulent removal/concealment of property (section,
206); fraudulent claim to property (section 207); fraudulently suffering or obtaining,
decree for sum not due (section 208 and section 210); dishonestly making a false,
claim in Court (section 209); and intentional insult or interruption to public servant,
sitting in judicial proceedings (section 228). Section 195 of Code of Criminal Procedure,
provides that no Court shall take cognizance of any offence punishable under section,
172–188 (dealing with the contempt of the lawful authority of public servants) or,
"section 193–196, 199, 200, 205–211 and 228, when such offence is alleged to have",
"been committed in, or in relation to, any proceeding in any Court, except on the",
complaint in writing of that Court by such officer of the Court as that Court may,
"authorise in writing in this behalf, or of some other Court to which that Court is",
subordinate.1.,
"416.[s 228A]— Disclosure of identity of the victim of certain offences, etc.",
(1) Whoever prints or publishes the name or any matter which may make known,
"the identity of any person against whom an 417.[offence under section 376, 418.",
"[section 376AB, section 376B, section 376C, section 376D, section 376DA,",
section 376DB] or section 376E] is alleged or found to have been committed,
(hereafter in this section referred to as the victim) shall be punished with,
imprisonment of either description for a term which may extend to two years,
and shall also be liable to fine.,
(2) Nothing in sub-section (1) extends to any printing or publication of the name or,
any matter which may make known the identity of the victim if such printing or,
publication is—,
(a) by or under the order in writing of the officer-in-charge of the police,
station or the police officer making the investigation into such offence,
acting in good faith for the purposes of such investigation; or,
"(b) by, or with the authorisation in writing of, the victim; or",
"(c) where the victim is dead or minor or of unsound mind, by, or with the",
"authorisation in writing of, the next of kin of the victim:",
Provided that no such authorisation shall be given by the next of kin to anybody,
"other than the chairman or the secretary, by whatever name called, of any",
recognised welfare institution or organisation.,
"Explanation.—For the purposes of this sub-section, ""recognised welfare",
"institution or organisation"" means a social welfare institution or organisation",
recognised in this behalf by the Central or State Government.,
(3) Whoever prints or publishes any matter in relation to any proceeding before a,
court with respect to an offence referred to in sub-section (1) without the,
previous permission of such Court shall be punished with imprisonment of,
either description for a term which may extend to two years and shall also be,
liable to fine.,
Explanation.—The printing or publication of the judgment of any High Court or,
the Supreme Court does not amount to an offence within the meaning of this,
section.,
COMMENT.—,
"This section has been introduced by The Criminal Law Amendment Act, 1983, section 2",
(43 of 1983) to prevent social victimisation or ostracism of the victim of a sexual,
offence.,
[s 228A.1] Exemption from prosecution.—,
A complaint was filed against the accused (petitioners) for the alleged disclosure of,
identity of the victim of a rape in their newspaper. The reply notice showed that the,
publication was made at the instance of a recognised welfare association. It was held,
that the petitioners were exempt from prosecution.419. Publishing the photographs of,
"rape victims in newspapers, journals and magazines would certainly fall under the",
category of making disclosure of identity of victim and such act would fall under,
"section 228-A of IPC, 1860.420.",
[s 228A.2] Judgments.—,
"Section 228A IPC, 1860 makes disclosure of identity of victim of certain offences",
punishable. Printing or publishing name of any matter which may make known the,
"identity of any person against whom an offence under sections 376, 376A, 376B, 376C",
or 376D is alleged or found to have been committed can be punished. Keeping in view,
the social object of preventing social victimisation or ostracism of the victim of a,
"sexual offence for which section 228A has been enacted, it would be appropriate that",
"in the judgments, be it of the Supreme Court, High Court or lower Court, the name of",
the victim should not be indicated.421.,
"1. S Palani Velayutham v District Collector Tirunvelveli TN, (2010) 1 SCC (Cr) 401 : (2009) 10 SCC",
664 [LNIND 2009 SC 1659] : (2009) 12 SCR 1215 [LNIND 2009 SC 1659] .,
"416. Ins. by Act 43 of 1983, section 2 (w.e.f. 25 December 1983).",
"417. Subs. by the Criminal Law (Amendment) Act, 2013 (13 of 2013), section 4 (w.e.f. 3",
"February 2013) for ""offence under section 376, section 376A, section 376B, section 376C or",
"section 376D"".",
"418. Subs. by Act 22 of 2018, section 3, for ""section 376A, section 376B, section 376C, section",
"376D"" (w.r.e.f. 21 April 2018).",
"419. R Lakshmipathi v Ramalingam, 1998 Cr LJ 3683 (Mad).",
"420. National Federation of Indian Women v Government of Tamil Nadu, 2007 Cr LJ 3385 (Mad).",
"421. S Ramakrishna v State, (2009) 1 SCC 133 [LNIND 2008 SC 2066] : (2009) 1 SCC Cri 487 :",
"AIR 2009 SC 885 [LNIND 2008 SC 2066] . See also Om Prakash v State of UP, 2006 Cr LJ 2913 :",
"AIR 2006 SC 2214 [LNIND 2006 SC 382] : (2006) 9 SCC 787 [LNIND 2006 SC 382] , it would be",
appropriate that the name of victim of rape should not be disclosed be it a judgment of the,
"Supreme Court, High Court or lower court. This is necessary to prevent victimisation or",
"ostracism of the victim. To the same effect is Dinesh v State of Rajasthan, 2006 Cr LJ 1679 (SC),",
"Bhupinder Sharma v State of HP, (2003) 8 SCC 551 . State of Karnataka v Puttaraja, (2004 (1) SCC",
475) [LNIND 2003 SC 1033] .,
THE INDIAN PENAL CODE,
CHAPTER XI OF FALSE EVIDENCE AND OFFENCES AGAINST PUBLIC,
JUSTICE,
"Under the Indian Penal Code, 1860 offences relating to false evidence and offences",
against public justice are contained in Chapter XI. In relation to proceeding in any,
"Court, the offences enumerated are: giving false evidence or fabricating false evidence",
(sections 191–193); giving or fabricating false evidence with intent to procure,
conviction (sections 194 and 195); threatening any person to give false evidence,
(section 195A); using evidence known to be false (section 196); using as true a,
certificate known to be false (section 198); making a false statement in a declaration,
which is by law receivable as evidence (section 199); using as true any declaration,
"receivable as evidence, knowing it to be false (section 200); causing disappearance of",
"evidence of offence, or giving false information to screen offender (section 201);",
intentional omission to give information of offence by person bound to inform (section,
202); giving false information in respect of an offence (section 203); destruction of,
document or electronic record to prevent its production as evidence (section 204);,
false personation (section 205); fraudulent removal/concealment of property (section,
206); fraudulent claim to property (section 207); fraudulently suffering or obtaining,
decree for sum not due (section 208 and section 210); dishonestly making a false,
claim in Court (section 209); and intentional insult or interruption to public servant,
sitting in judicial proceedings (section 228). Section 195 of Code of Criminal Procedure,
provides that no Court shall take cognizance of any offence punishable under section,
172–188 (dealing with the contempt of the lawful authority of public servants) or,
"section 193–196, 199, 200, 205–211 and 228, when such offence is alleged to have",
"been committed in, or in relation to, any proceeding in any Court, except on the",
complaint in writing of that Court by such officer of the Court as that Court may,
"authorise in writing in this behalf, or of some other Court to which that Court is",
subordinate.1.,
[s 229] Personation of a Juror or Assessor.,
"Whoever, by personation or otherwise, shall intentionally cause, or knowingly suffer",
"himself to be returned, empanelled or sworn as a juryman or assessor in any case in",
"which he knows that he is not entitled by law to be so returned, empanelled or sworn,",
"or knowing himself to have been so returned, empanelled or sworn contrary to law,",
"shall voluntarily serve on such jury or as such assessor, shall be punished with",
"imprisonment of either description for a term which may extend to two years, or with",
"fine, or with both.",
COMMENT.—,
This section was intended to punish personation of a juror or an assessor. It has now,
become obsolete with the abolition of assessor or jury system of trial.,
"1. S Palani Velayutham v District Collector Tirunvelveli TN, (2010) 1 SCC (Cr) 401 : (2009) 10 SCC",
664 [LNIND 2009 SC 1659] : (2009) 12 SCR 1215 [LNIND 2009 SC 1659] .,
THE INDIAN PENAL CODE,
CHAPTER XI OF FALSE EVIDENCE AND OFFENCES AGAINST PUBLIC,
JUSTICE,
"Under the Indian Penal Code, 1860 offences relating to false evidence and offences",
against public justice are contained in Chapter XI. In relation to proceeding in any,
"Court, the offences enumerated are: giving false evidence or fabricating false evidence",
(sections 191–193); giving or fabricating false evidence with intent to procure,
conviction (sections 194 and 195); threatening any person to give false evidence,
(section 195A); using evidence known to be false (section 196); using as true a,
certificate known to be false (section 198); making a false statement in a declaration,
which is by law receivable as evidence (section 199); using as true any declaration,
"receivable as evidence, knowing it to be false (section 200); causing disappearance of",
"evidence of offence, or giving false information to screen offender (section 201);",
intentional omission to give information of offence by person bound to inform (section,
202); giving false information in respect of an offence (section 203); destruction of,
document or electronic record to prevent its production as evidence (section 204);,
false personation (section 205); fraudulent removal/concealment of property (section,
206); fraudulent claim to property (section 207); fraudulently suffering or obtaining,
decree for sum not due (section 208 and section 210); dishonestly making a false,
claim in Court (section 209); and intentional insult or interruption to public servant,
sitting in judicial proceedings (section 228). Section 195 of Code of Criminal Procedure,
provides that no Court shall take cognizance of any offence punishable under section,
172–188 (dealing with the contempt of the lawful authority of public servants) or,
"section 193–196, 199, 200, 205–211 and 228, when such offence is alleged to have",
"been committed in, or in relation to, any proceeding in any Court, except on the",
complaint in writing of that Court by such officer of the Court as that Court may,
"authorise in writing in this behalf, or of some other Court to which that Court is",
subordinate.1.,
422.[s 229-A] Failure by person released on bail or bond to appear in Court.,
"[Whoever, having been charged with an offence and released on bail or on bond",
"without sureties, fails without sufficient cause (the burden of proving which shall lie",
"upon him), to appear in Court in accordance with the terms of the bail or bond, shall",
be punished with imprisonment of either description for a term which may extend to,
"one year, or with fine, or with both.",
Explanation.—The punishment under this section is—,
(a) in addition to the punishment to which the offender would be liable on a,
conviction for the offence with which he has been charged; and,
(b) without prejudice to the power of the Court to order forfeiture of the bond].,
COMMENT.—,
"Cr PC, 1973 (Amendment) Act 2005—clause 44.—This clause amends the IPC, 1860 as",
"follows, namely:—",
Under clause 37 an obligation is cast on the person released on bail or on bond to,
"appear and surrender to custody. In order to enforce this obligation, a new section 229-",
"A is being inserted in the IPC, 1860 to prescribe punishment for those who fail to do so.",
[Notes on clauses.],
"1. S Palani Velayutham v District Collector Tirunvelveli TN, (2010) 1 SCC (Cr) 401 : (2009) 10 SCC",
664 [LNIND 2009 SC 1659] : (2009) 12 SCR 1215 [LNIND 2009 SC 1659] .,
"422. Ins. by Cr PC, 1973. (Amendment) Act, 2005 (25 of 2005), section 44(c) (w.e.f. 23 June",
"2006 vide Notfn. No. SO 923(E), dated 21 June 2006.",
THE INDIAN PENAL CODE,
CHAPTER XII OF OFFENCES RELATING TO COIN AND GOVERNMENT,
STAMPS,
The offences described in this Chapter relate to (I) Coins and (II) Government Stamps.,
(I) Coins.—,
The offences relating to coins may be classified into three divisions:—,
"(1) Counterfeiting, (2) alteration, and (3) acts of mint employees.",
1. Counterfeiting—,
"(1) Counterfeiting coins (sections 231, 232).",
"(2) Making or selling instrument for counterfeiting (sections 233, 234).",
(3) Possession of instrument for counterfeiting (section 235).,
(4) Abetting in India the counterfeiting of coin out of India (section 236).,
"(5) Importing or exporting of counterfeit coin (sections 237, 238).",
"(6) Delivering counterfeit coin knowing it to be so (sections 239, 240).",
(7) Delivering counterfeit coin not known to be so when first possessed,
(section 241).,
"(8) Possession of counterfeit coin knowing it to be so (sections 242, 243).",
2. Alteration—,
(1) Diminishing the weight or altering the composition of any coin (sections,
"246, 247).",
(2) Altering appearance of any coin to pass it off as a different coin (sections,
"248, 249).",
(3) Delivering coin possessed with the knowledge that it is altered (sections,
"250, 251).",
"(4) Possessing altered coin knowing it to be so (sections 252, 253).",
(5) Delivering altered coin which the deliverer did not know to be altered when,
first possessed (section 254).,
3. Acts of mint employees—,
(1) Persons employed in a mint causing coin to be of a different weight or,
composition from that fixed by law (section 244).,
(2) Unlawful taking from a mint any coining instrument (section 245).,
(II) Government Stamps.—,
(1) Counterfeiting a stamp (section 255).,
(2) Possession of an instrument for counterfeiting a stamp (section 256).,
(3) Making or selling an instrument for counterfeiting a stamp (section 257).,
(4) Sale of a counterfeit stamp (section 258).,
(5) Possession of a counterfeit stamp (section 259).,
(6) Using as genuine a stamp known to be counterfeit (section 260).,
(7) Effacing any writing from a substance bearing a stamp or removing from a,
"document a stamp used for it, with intent to cause loss to Government (section",
261).,
(8) Using a stamp known to have been before used (section 262).,
(9) Erasure of mark denoting that a stamp has been used (section 263).,
"(10) Making, uttering, or dealing in, or selling or using for postal purpose, any",
fictitious stamp; or possessing any fictitious stamp; or making or possessing,
any instrument for manufacturing fictitious stamps (section 263A).,
"[s 230] ""Coin"" defined.",
"1.[Coin is metal used for the time being as money, and stamped and issued by the",
authority of some State or Sovereign Power in order to be so used.],
Indian coin.,
2.[Indian coin is metal stamped and issued by the authority of the Government of,
India in order to be used as money; and metal which has been so stamped and,
"issued shall continue to be Indian coin for the purposes of this Chapter,",
notwithstanding that it may have ceased to be used as money.],
ILLUSTRATIONS,
(a) Cowries are not coin.,
"(b) Lumps of unstamped copper, though used as money, are not coin.",
"(c) Medals are not coin, in as much as they are not intended to be used as money.",
(d) The coin denominated as the Company's rupee is 3.[Indian coin].,
"4.[(e) The ""Farukhabad rupee"" which was formerly used as money under the",
authority of the Government of India is 5.[Indian coin] although it is no longer,
so used].,
COMMENT.—,
"In view of the definition of ""Indian coin"" in this section, it is immaterial whether the",
coins are still current or they have ceased to be used as money.6.,
"1. Subs. by Act 19 of 1872, section 1, for the original first paragraph.",
"2. Subs. by A.O. 1950, for the former paragraph.",
"3. Subs. by the A.O. 1950, for ""the Queen's coin"".",
"4. Ins. by Act 6 of 1896, section 1.",
"5. Subs. by the A.O. 1950, for ""the Queen's coin"".",
"6. Ranchhod Mula v State, (1961) 2 Cr LJ 472 .",
THE INDIAN PENAL CODE,
CHAPTER XII OF OFFENCES RELATING TO COIN AND GOVERNMENT,
STAMPS,
The offences described in this Chapter relate to (I) Coins and (II) Government Stamps.,
(I) Coins.—,
The offences relating to coins may be classified into three divisions:—,
"(1) Counterfeiting, (2) alteration, and (3) acts of mint employees.",
1. Counterfeiting—,
"(1) Counterfeiting coins (sections 231, 232).",
"(2) Making or selling instrument for counterfeiting (sections 233, 234).",
(3) Possession of instrument for counterfeiting (section 235).,
(4) Abetting in India the counterfeiting of coin out of India (section 236).,
"(5) Importing or exporting of counterfeit coin (sections 237, 238).",
"(6) Delivering counterfeit coin knowing it to be so (sections 239, 240).",
(7) Delivering counterfeit coin not known to be so when first possessed,
(section 241).,
"(8) Possession of counterfeit coin knowing it to be so (sections 242, 243).",
2. Alteration—,
(1) Diminishing the weight or altering the composition of any coin (sections,
"246, 247).",
(2) Altering appearance of any coin to pass it off as a different coin (sections,
"248, 249).",
(3) Delivering coin possessed with the knowledge that it is altered (sections,
"250, 251).",
"(4) Possessing altered coin knowing it to be so (sections 252, 253).",
(5) Delivering altered coin which the deliverer did not know to be altered when,
first possessed (section 254).,
3. Acts of mint employees—,
(1) Persons employed in a mint causing coin to be of a different weight or,
composition from that fixed by law (section 244).,
(2) Unlawful taking from a mint any coining instrument (section 245).,
(II) Government Stamps.—,
(1) Counterfeiting a stamp (section 255).,
(2) Possession of an instrument for counterfeiting a stamp (section 256).,
(3) Making or selling an instrument for counterfeiting a stamp (section 257).,
(4) Sale of a counterfeit stamp (section 258).,
(5) Possession of a counterfeit stamp (section 259).,
(6) Using as genuine a stamp known to be counterfeit (section 260).,
(7) Effacing any writing from a substance bearing a stamp or removing from a,
"document a stamp used for it, with intent to cause loss to Government (section",
261).,
(8) Using a stamp known to have been before used (section 262).,
(9) Erasure of mark denoting that a stamp has been used (section 263).,
"(10) Making, uttering, or dealing in, or selling or using for postal purpose, any",
fictitious stamp; or possessing any fictitious stamp; or making or possessing,
any instrument for manufacturing fictitious stamps (section 263A).,
[s 231] Counterfeiting coin.,
Whoever counterfeits or knowingly performs any part of the process of counterfeiting,
"coin, shall be punished with imprisonment of either description for a term which may",
"extend to seven years, and shall also be liable to fine.",
"Explanation.—A person commits this offence who intending to practise deception, or",
"knowing it to be likely that deception will thereby be practised, causes a genuine coin",
to appear like a different coin.,
COMMENT.—,
It is not necessary under this section that the counterfeit coin should be made with the,
primary intention of its being passed as genuine; it is sufficient if the resemblance to,
genuine coin is so close that it is capable of being passed as such.7. It is not essential,
for coins to be counterfeit that they should be of exact resemblances to genuine coins.,
It is sufficient that they are such as to cause deception and may be passed as,
genuine.8. But where the alleged counterfeit coins are such that none would be,
"deceived, these cannot be counterfeit coins within the meaning of this section.9.",
"7. Qadir Bakhsh, (1907) 30 All 93 ; Premsookh Dass, (1870) PR 38 of 1870.",
"8. Amrit Sonar, (1919) 4 PLJ 525 , 20 Cr LJ 439.",
"9. Ranchhod Mula v State, (1961) 2 Cr LJ 472 .",
THE INDIAN PENAL CODE,
CHAPTER XII OF OFFENCES RELATING TO COIN AND GOVERNMENT,
STAMPS,
The offences described in this Chapter relate to (I) Coins and (II) Government Stamps.,
(I) Coins.—,
The offences relating to coins may be classified into three divisions:—,
"(1) Counterfeiting, (2) alteration, and (3) acts of mint employees.",
1. Counterfeiting—,
"(1) Counterfeiting coins (sections 231, 232).",
"(2) Making or selling instrument for counterfeiting (sections 233, 234).",
(3) Possession of instrument for counterfeiting (section 235).,
(4) Abetting in India the counterfeiting of coin out of India (section 236).,
"(5) Importing or exporting of counterfeit coin (sections 237, 238).",
"(6) Delivering counterfeit coin knowing it to be so (sections 239, 240).",
(7) Delivering counterfeit coin not known to be so when first possessed,
(section 241).,
"(8) Possession of counterfeit coin knowing it to be so (sections 242, 243).",
2. Alteration—,
(1) Diminishing the weight or altering the composition of any coin (sections,
"246, 247).",
(2) Altering appearance of any coin to pass it off as a different coin (sections,
"248, 249).",
(3) Delivering coin possessed with the knowledge that it is altered (sections,
"250, 251).",
"(4) Possessing altered coin knowing it to be so (sections 252, 253).",
(5) Delivering altered coin which the deliverer did not know to be altered when,
first possessed (section 254).,
3. Acts of mint employees—,
(1) Persons employed in a mint causing coin to be of a different weight or,
composition from that fixed by law (section 244).,
(2) Unlawful taking from a mint any coining instrument (section 245).,
(II) Government Stamps.—,
(1) Counterfeiting a stamp (section 255).,
(2) Possession of an instrument for counterfeiting a stamp (section 256).,
(3) Making or selling an instrument for counterfeiting a stamp (section 257).,
(4) Sale of a counterfeit stamp (section 258).,
(5) Possession of a counterfeit stamp (section 259).,
(6) Using as genuine a stamp known to be counterfeit (section 260).,
(7) Effacing any writing from a substance bearing a stamp or removing from a,
"document a stamp used for it, with intent to cause loss to Government (section",
261).,
(8) Using a stamp known to have been before used (section 262).,
(9) Erasure of mark denoting that a stamp has been used (section 263).,
"(10) Making, uttering, or dealing in, or selling or using for postal purpose, any",
fictitious stamp; or possessing any fictitious stamp; or making or possessing,
any instrument for manufacturing fictitious stamps (section 263A).,
[s 232] Counterfeiting Indian coin.,
"Whoever counterfeits, or knowingly performs any part of the process of counterfeiting",
"10.[Indian coin], shall be punished with 11.[imprisonment for life], or with",
"imprisonment of either description for a term which may extend to ten years, and",
shall also be liable to fine.,
COMMENT.—,
The Code provides heavier punishment in cases of offences relating to Indian coin than,
those relating to foreign coins.12.,
The basic requirement for the prosecution to succeed against the accused in respect,
of counterfeiting coins is that the witnesses examined by the prosecution must speak,
of the manufacture of one coin resembling a genuine one. A presumption can also be,
drawn under Explanation 2 of section 28 that a person is counterfeiting coins when he,
causes one coin to resemble another so closely that the person intended to practice,
deception or knew it would be likely to cause deception. Section 232 prescribes the,
punishment for counterfeiting Indian coins. Section 235 prescribes the punishment for,
a person who is in possession of any instrument or material used for counterfeiting,
"coins. Thus, a conviction under sections 232 or 235 would be maintained only if the",
prosecution satisfactorily proves the ingredients of section 28. The prosecution must,
establish that the coins manufactured resemble the original. It must also establish that,
"there is an intention to deceive, or the knowledge that deception would be caused by",
such resemblance.13.,
'Counterfeiting' means causing one thing to resemble another.14.,
"10. Subs. by the A.O. 1950, for ""the Queen's coin"".",
"11. Subs. by Act 26 of 1955, section 117 and Sch, for ""transportation for life"" (w.e.f. 1-1-1956).",
"12. Note I, p 134.",
"13. Shahid Sultan Khan v State of Maharashtra, 2007 Cr LJ 568 (Bom).",
"14. Muhammad Husain, (1901) 23 All 420 .",
THE INDIAN PENAL CODE,
CHAPTER XII OF OFFENCES RELATING TO COIN AND GOVERNMENT,
STAMPS,
The offences described in this Chapter relate to (I) Coins and (II) Government Stamps.,
(I) Coins.—,
The offences relating to coins may be classified into three divisions:—,
"(1) Counterfeiting, (2) alteration, and (3) acts of mint employees.",
1. Counterfeiting—,
"(1) Counterfeiting coins (sections 231, 232).",
"(2) Making or selling instrument for counterfeiting (sections 233, 234).",
(3) Possession of instrument for counterfeiting (section 235).,
(4) Abetting in India the counterfeiting of coin out of India (section 236).,
"(5) Importing or exporting of counterfeit coin (sections 237, 238).",
"(6) Delivering counterfeit coin knowing it to be so (sections 239, 240).",
(7) Delivering counterfeit coin not known to be so when first possessed,
(section 241).,
"(8) Possession of counterfeit coin knowing it to be so (sections 242, 243).",
2. Alteration—,
(1) Diminishing the weight or altering the composition of any coin (sections,
"246, 247).",
(2) Altering appearance of any coin to pass it off as a different coin (sections,
"248, 249).",
(3) Delivering coin possessed with the knowledge that it is altered (sections,
"250, 251).",
"(4) Possessing altered coin knowing it to be so (sections 252, 253).",
(5) Delivering altered coin which the deliverer did not know to be altered when,
first possessed (section 254).,
3. Acts of mint employees—,
(1) Persons employed in a mint causing coin to be of a different weight or,
composition from that fixed by law (section 244).,
(2) Unlawful taking from a mint any coining instrument (section 245).,
(II) Government Stamps.—,
(1) Counterfeiting a stamp (section 255).,
(2) Possession of an instrument for counterfeiting a stamp (section 256).,
(3) Making or selling an instrument for counterfeiting a stamp (section 257).,
(4) Sale of a counterfeit stamp (section 258).,
(5) Possession of a counterfeit stamp (section 259).,
(6) Using as genuine a stamp known to be counterfeit (section 260).,
(7) Effacing any writing from a substance bearing a stamp or removing from a,
"document a stamp used for it, with intent to cause loss to Government (section",
261).,
(8) Using a stamp known to have been before used (section 262).,
(9) Erasure of mark denoting that a stamp has been used (section 263).,
"(10) Making, uttering, or dealing in, or selling or using for postal purpose, any",
fictitious stamp; or possessing any fictitious stamp; or making or possessing,
any instrument for manufacturing fictitious stamps (section 263A).,
[s 233] Making or selling instrument for counterfeiting coin.,
"Whoever makes or mends, or performs any part of the process of making or mending,",
"or buys, sells or disposes of, any die or instrument, for the purpose of being used, or",
"knowing or having reason to believe that it is intended to be used, for the purpose of",
"counterfeiting coin, shall be punished with imprisonment of either description for a",
"term which may extend to three years, and shall also be liable to fine.",
COMMENT.—,
In this as well as in the following sections mere acts of preparation towards the,
"offence of coining are made substantive offences, such as the making of dies or other",
instruments used in the manufacture of coin.,
THE INDIAN PENAL CODE,
CHAPTER XII OF OFFENCES RELATING TO COIN AND GOVERNMENT,
STAMPS,
The offences described in this Chapter relate to (I) Coins and (II) Government Stamps.,
(I) Coins.—,
The offences relating to coins may be classified into three divisions:—,
"(1) Counterfeiting, (2) alteration, and (3) acts of mint employees.",
1. Counterfeiting—,
"(1) Counterfeiting coins (sections 231, 232).",
"(2) Making or selling instrument for counterfeiting (sections 233, 234).",
(3) Possession of instrument for counterfeiting (section 235).,
(4) Abetting in India the counterfeiting of coin out of India (section 236).,
"(5) Importing or exporting of counterfeit coin (sections 237, 238).",
"(6) Delivering counterfeit coin knowing it to be so (sections 239, 240).",
(7) Delivering counterfeit coin not known to be so when first possessed,
(section 241).,
"(8) Possession of counterfeit coin knowing it to be so (sections 242, 243).",
2. Alteration—,
(1) Diminishing the weight or altering the composition of any coin (sections,
"246, 247).",
(2) Altering appearance of any coin to pass it off as a different coin (sections,
"248, 249).",
(3) Delivering coin possessed with the knowledge that it is altered (sections,
"250, 251).",
"(4) Possessing altered coin knowing it to be so (sections 252, 253).",
(5) Delivering altered coin which the deliverer did not know to be altered when,
first possessed (section 254).,
3. Acts of mint employees—,
(1) Persons employed in a mint causing coin to be of a different weight or,
composition from that fixed by law (section 244).,
(2) Unlawful taking from a mint any coining instrument (section 245).,
(II) Government Stamps.—,
(1) Counterfeiting a stamp (section 255).,
(2) Possession of an instrument for counterfeiting a stamp (section 256).,
(3) Making or selling an instrument for counterfeiting a stamp (section 257).,
(4) Sale of a counterfeit stamp (section 258).,
(5) Possession of a counterfeit stamp (section 259).,
(6) Using as genuine a stamp known to be counterfeit (section 260).,
(7) Effacing any writing from a substance bearing a stamp or removing from a,
"document a stamp used for it, with intent to cause loss to Government (section",
261).,
(8) Using a stamp known to have been before used (section 262).,
(9) Erasure of mark denoting that a stamp has been used (section 263).,
"(10) Making, uttering, or dealing in, or selling or using for postal purpose, any",
fictitious stamp; or possessing any fictitious stamp; or making or possessing,
any instrument for manufacturing fictitious stamps (section 263A).,
[s 234] Making or selling instrument for counterfeiting Indian coin.,
"Whoever makes or mends, or performs any part of the process of making or mending,",
"or buys, sells or disposes of, any die or instrument, for the purpose of being used, or",
"knowing or having reason to believe that it is intended to be used, for the purpose of",
"counterfeiting 15.[Indian coin], shall be punished with imprisonment of either",
"description for a term which may extend to seven years, and shall also be liable to",
fine.,
"15. Subs. by the A.O. 1950, for ""the Queen's coin"".",
THE INDIAN PENAL CODE,
CHAPTER XII OF OFFENCES RELATING TO COIN AND GOVERNMENT,
STAMPS,
The offences described in this Chapter relate to (I) Coins and (II) Government Stamps.,
(I) Coins.—,
The offences relating to coins may be classified into three divisions:—,
"(1) Counterfeiting, (2) alteration, and (3) acts of mint employees.",
1. Counterfeiting—,
"(1) Counterfeiting coins (sections 231, 232).",
"(2) Making or selling instrument for counterfeiting (sections 233, 234).",
(3) Possession of instrument for counterfeiting (section 235).,
(4) Abetting in India the counterfeiting of coin out of India (section 236).,
"(5) Importing or exporting of counterfeit coin (sections 237, 238).",
"(6) Delivering counterfeit coin knowing it to be so (sections 239, 240).",
(7) Delivering counterfeit coin not known to be so when first possessed,
(section 241).,
"(8) Possession of counterfeit coin knowing it to be so (sections 242, 243).",
2. Alteration—,
(1) Diminishing the weight or altering the composition of any coin (sections,
"246, 247).",
(2) Altering appearance of any coin to pass it off as a different coin (sections,
"248, 249).",
(3) Delivering coin possessed with the knowledge that it is altered (sections,
"250, 251).",
"(4) Possessing altered coin knowing it to be so (sections 252, 253).",
(5) Delivering altered coin which the deliverer did not know to be altered when,
first possessed (section 254).,
3. Acts of mint employees—,
(1) Persons employed in a mint causing coin to be of a different weight or,
composition from that fixed by law (section 244).,
(2) Unlawful taking from a mint any coining instrument (section 245).,
(II) Government Stamps.—,
(1) Counterfeiting a stamp (section 255).,
(2) Possession of an instrument for counterfeiting a stamp (section 256).,
(3) Making or selling an instrument for counterfeiting a stamp (section 257).,
(4) Sale of a counterfeit stamp (section 258).,
(5) Possession of a counterfeit stamp (section 259).,
(6) Using as genuine a stamp known to be counterfeit (section 260).,
(7) Effacing any writing from a substance bearing a stamp or removing from a,
"document a stamp used for it, with intent to cause loss to Government (section",
261).,
(8) Using a stamp known to have been before used (section 262).,
(9) Erasure of mark denoting that a stamp has been used (section 263).,
"(10) Making, uttering, or dealing in, or selling or using for postal purpose, any",
fictitious stamp; or possessing any fictitious stamp; or making or possessing,
any instrument for manufacturing fictitious stamps (section 263A).,
"[s 235] Possession of instrument, or material for the purpose of using the",
same for counterfeiting coin.,
"Whoever is in possession of any instrument or material, for the purpose of using the",
"same for counterfeiting coin, or knowing or having reason to believe that the same is",
"intended to be used for that purpose, shall be punished with imprisonment of either",
"description for a term which may extend to three years, and shall also be liable to fine;",
If Indian coin.,
"and if the coin to be counterfeited is 16.[Indian coin], shall be punished with",
"imprisonment of either description for a term which may extend to ten years, and",
shall also be liable to fine.,
COMMENT.—,
'Possession' connotes the intention to exercise power or control over the object,
possessed and therefore necessarily implies that the possessor has been conscious of,
the possibility of exercising that power or control. Mere possession of instruments and,
materials capable of counterfeiting coins is no offence. Possession of such,
instruments should be with the intention of counterfeiting coins and the intention must,
be proved. The onus of proving the fitness of the materials for the purpose of,
counterfeiting coins was upon the prosecution.17. The minimum that would be required,
for prosecution to establish a charge under sections 232 and 235 is that it establishes,
that the coins seized resembled the original and that the resemblance is such that it,
would deceive a person or that the accused knew that if the coin is used it would be,
likely to deceive a person. Unless there is intrinsic evidence on record to show that the,
"coins indeed resemble genuine coins, it is difficult to accept the case of the",
prosecution.18.,
"16. Subs. by the A.O. 1950, for ""the Queen's coin"".",
"17. Khadim Hussain, (1924) 5 Lah 392.",
"18. Shahid Sultan Khan v State of Maharashtra, 2007 Cr LJ 568 (Bom).",
THE INDIAN PENAL CODE,
CHAPTER XII OF OFFENCES RELATING TO COIN AND GOVERNMENT,
STAMPS,
The offences described in this Chapter relate to (I) Coins and (II) Government Stamps.,
(I) Coins.—,
The offences relating to coins may be classified into three divisions:—,
"(1) Counterfeiting, (2) alteration, and (3) acts of mint employees.",
1. Counterfeiting—,
"(1) Counterfeiting coins (sections 231, 232).",
"(2) Making or selling instrument for counterfeiting (sections 233, 234).",
(3) Possession of instrument for counterfeiting (section 235).,
(4) Abetting in India the counterfeiting of coin out of India (section 236).,
"(5) Importing or exporting of counterfeit coin (sections 237, 238).",
"(6) Delivering counterfeit coin knowing it to be so (sections 239, 240).",
(7) Delivering counterfeit coin not known to be so when first possessed,
(section 241).,
"(8) Possession of counterfeit coin knowing it to be so (sections 242, 243).",
2. Alteration—,
(1) Diminishing the weight or altering the composition of any coin (sections,
"246, 247).",
(2) Altering appearance of any coin to pass it off as a different coin (sections,
"248, 249).",
(3) Delivering coin possessed with the knowledge that it is altered (sections,
"250, 251).",
"(4) Possessing altered coin knowing it to be so (sections 252, 253).",
(5) Delivering altered coin which the deliverer did not know to be altered when,
first possessed (section 254).,
3. Acts of mint employees—,
(1) Persons employed in a mint causing coin to be of a different weight or,
composition from that fixed by law (section 244).,
(2) Unlawful taking from a mint any coining instrument (section 245).,
(II) Government Stamps.—,
(1) Counterfeiting a stamp (section 255).,
(2) Possession of an instrument for counterfeiting a stamp (section 256).,
(3) Making or selling an instrument for counterfeiting a stamp (section 257).,
(4) Sale of a counterfeit stamp (section 258).,
(5) Possession of a counterfeit stamp (section 259).,
(6) Using as genuine a stamp known to be counterfeit (section 260).,
(7) Effacing any writing from a substance bearing a stamp or removing from a,
"document a stamp used for it, with intent to cause loss to Government (section",
261).,
(8) Using a stamp known to have been before used (section 262).,
(9) Erasure of mark denoting that a stamp has been used (section 263).,
"(10) Making, uttering, or dealing in, or selling or using for postal purpose, any",
fictitious stamp; or possessing any fictitious stamp; or making or possessing,
any instrument for manufacturing fictitious stamps (section 263A).,
[s 236] Abetting in India the counterfeiting out of India of coin.,
"Whoever, being within 19.[India], abets the counterfeiting of coin out of 20.[India], shall",
be punished in the same manner as if he abetted the counterfeiting of such coin,
within 21.[India].,
COMMENT.—,
"Any person in India, whether an Indian or a foreigner, who supplied instruments or",
"materials for the purpose of counterfeiting any coin, or assists in any other way, is",
punishable under this section. Abetment in India must be complete.,
"19. The words ""British India"" have successively been subs. by the A.O. 1948, the A.O. 1950 and",
"Act 3 of 1951, section 3 and Sch (w.e.f. 1 April 1951), to read as above.",
20. Ibid.,
21. Ibid.,
THE INDIAN PENAL CODE,
CHAPTER XII OF OFFENCES RELATING TO COIN AND GOVERNMENT,
STAMPS,
The offences described in this Chapter relate to (I) Coins and (II) Government Stamps.,
(I) Coins.—,
The offences relating to coins may be classified into three divisions:—,
"(1) Counterfeiting, (2) alteration, and (3) acts of mint employees.",
1. Counterfeiting—,
"(1) Counterfeiting coins (sections 231, 232).",
"(2) Making or selling instrument for counterfeiting (sections 233, 234).",
(3) Possession of instrument for counterfeiting (section 235).,
(4) Abetting in India the counterfeiting of coin out of India (section 236).,
"(5) Importing or exporting of counterfeit coin (sections 237, 238).",
"(6) Delivering counterfeit coin knowing it to be so (sections 239, 240).",
(7) Delivering counterfeit coin not known to be so when first possessed,
(section 241).,
"(8) Possession of counterfeit coin knowing it to be so (sections 242, 243).",
2. Alteration—,
(1) Diminishing the weight or altering the composition of any coin (sections,
"246, 247).",
(2) Altering appearance of any coin to pass it off as a different coin (sections,
"248, 249).",
(3) Delivering coin possessed with the knowledge that it is altered (sections,
"250, 251).",
"(4) Possessing altered coin knowing it to be so (sections 252, 253).",
(5) Delivering altered coin which the deliverer did not know to be altered when,
first possessed (section 254).,
3. Acts of mint employees—,
(1) Persons employed in a mint causing coin to be of a different weight or,
composition from that fixed by law (section 244).,
(2) Unlawful taking from a mint any coining instrument (section 245).,
(II) Government Stamps.—,
(1) Counterfeiting a stamp (section 255).,
(2) Possession of an instrument for counterfeiting a stamp (section 256).,
(3) Making or selling an instrument for counterfeiting a stamp (section 257).,
(4) Sale of a counterfeit stamp (section 258).,
(5) Possession of a counterfeit stamp (section 259).,
(6) Using as genuine a stamp known to be counterfeit (section 260).,
(7) Effacing any writing from a substance bearing a stamp or removing from a,
"document a stamp used for it, with intent to cause loss to Government (section",
261).,
(8) Using a stamp known to have been before used (section 262).,
(9) Erasure of mark denoting that a stamp has been used (section 263).,
"(10) Making, uttering, or dealing in, or selling or using for postal purpose, any",
fictitious stamp; or possessing any fictitious stamp; or making or possessing,
any instrument for manufacturing fictitious stamps (section 263A).,
[s 237] Import or export of counterfeit coin.,
"Whoever imports into 22. [India], or exports therefrom, any counterfeit coin, knowing",
"or having reason to believe that the same is counterfeit, shall be punished with",
"imprisonment of either description for a term which may extend to three years, and",
shall also be liable to fine.,
COMMENT.—,
"The offence under this and the following section consists in an import or export, of any",
"coin known by the importer, or which he has reason to believe, to be counterfeit.",
"22. The words ""British India"" have successively been subs. by the A.O. 1948, the A.O. 1950 and",
"Act 3 of 1951, section 3 and Sch. (w.e.f. 1-4-1951), to read as above.",
THE INDIAN PENAL CODE,
CHAPTER XII OF OFFENCES RELATING TO COIN AND GOVERNMENT,
STAMPS,
The offences described in this Chapter relate to (I) Coins and (II) Government Stamps.,
(I) Coins.—,
The offences relating to coins may be classified into three divisions:—,
"(1) Counterfeiting, (2) alteration, and (3) acts of mint employees.",
1. Counterfeiting—,
"(1) Counterfeiting coins (sections 231, 232).",
"(2) Making or selling instrument for counterfeiting (sections 233, 234).",
(3) Possession of instrument for counterfeiting (section 235).,
(4) Abetting in India the counterfeiting of coin out of India (section 236).,
"(5) Importing or exporting of counterfeit coin (sections 237, 238).",
"(6) Delivering counterfeit coin knowing it to be so (sections 239, 240).",
(7) Delivering counterfeit coin not known to be so when first possessed,
(section 241).,
"(8) Possession of counterfeit coin knowing it to be so (sections 242, 243).",
2. Alteration—,
(1) Diminishing the weight or altering the composition of any coin (sections,
"246, 247).",
(2) Altering appearance of any coin to pass it off as a different coin (sections,
"248, 249).",
(3) Delivering coin possessed with the knowledge that it is altered (sections,
"250, 251).",
"(4) Possessing altered coin knowing it to be so (sections 252, 253).",
(5) Delivering altered coin which the deliverer did not know to be altered when,
first possessed (section 254).,
3. Acts of mint employees—,
(1) Persons employed in a mint causing coin to be of a different weight or,
composition from that fixed by law (section 244).,
(2) Unlawful taking from a mint any coining instrument (section 245).,
(II) Government Stamps.—,
(1) Counterfeiting a stamp (section 255).,
(2) Possession of an instrument for counterfeiting a stamp (section 256).,
(3) Making or selling an instrument for counterfeiting a stamp (section 257).,
(4) Sale of a counterfeit stamp (section 258).,
(5) Possession of a counterfeit stamp (section 259).,
(6) Using as genuine a stamp known to be counterfeit (section 260).,
(7) Effacing any writing from a substance bearing a stamp or removing from a,
"document a stamp used for it, with intent to cause loss to Government (section",
261).,
(8) Using a stamp known to have been before used (section 262).,
(9) Erasure of mark denoting that a stamp has been used (section 263).,
"(10) Making, uttering, or dealing in, or selling or using for postal purpose, any",
fictitious stamp; or possessing any fictitious stamp; or making or possessing,
any instrument for manufacturing fictitious stamps (section 263A).,
[s 238] Import or export of counterfeits of Indian coin.,
"Whoever imports into 23.[India], or exports therefrom, any counterfeit coin, which he",
"knows or has reason to believe to be a counterfeit of 24.[Indian coin], shall be",
"punished with 25.[imprisonment for life], or with imprisonment of either description",
"for a term which may extend to ten years, and shall also be liable to fine.",
"23. The words ""British India"" have successively been subs. by the A.O. 1948, the A.O. 1950 and",
"Act 3 of 1951, section 3 and Sch (w.e.f. 1 April 1951), to read as above.",
"24. Subs. by the A.O. 1950, for ""the Queen's coin"".",
"25. Subs. by Act 26 of 1955, section 117 and Sch, for ""transportation for life"" (w.e.f. 1-1-1956).",
THE INDIAN PENAL CODE,
CHAPTER XII OF OFFENCES RELATING TO COIN AND GOVERNMENT,
STAMPS,
The offences described in this Chapter relate to (I) Coins and (II) Government Stamps.,
(I) Coins.—,
The offences relating to coins may be classified into three divisions:—,
"(1) Counterfeiting, (2) alteration, and (3) acts of mint employees.",
1. Counterfeiting—,
"(1) Counterfeiting coins (sections 231, 232).",
"(2) Making or selling instrument for counterfeiting (sections 233, 234).",
(3) Possession of instrument for counterfeiting (section 235).,
(4) Abetting in India the counterfeiting of coin out of India (section 236).,
"(5) Importing or exporting of counterfeit coin (sections 237, 238).",
"(6) Delivering counterfeit coin knowing it to be so (sections 239, 240).",
(7) Delivering counterfeit coin not known to be so when first possessed,
(section 241).,
"(8) Possession of counterfeit coin knowing it to be so (sections 242, 243).",
2. Alteration—,
(1) Diminishing the weight or altering the composition of any coin (sections,
"246, 247).",
(2) Altering appearance of any coin to pass it off as a different coin (sections,
"248, 249).",
(3) Delivering coin possessed with the knowledge that it is altered (sections,
"250, 251).",
"(4) Possessing altered coin knowing it to be so (sections 252, 253).",
(5) Delivering altered coin which the deliverer did not know to be altered when,
first possessed (section 254).,
3. Acts of mint employees—,
(1) Persons employed in a mint causing coin to be of a different weight or,
composition from that fixed by law (section 244).,
(2) Unlawful taking from a mint any coining instrument (section 245).,
(II) Government Stamps.—,
(1) Counterfeiting a stamp (section 255).,
(2) Possession of an instrument for counterfeiting a stamp (section 256).,
(3) Making or selling an instrument for counterfeiting a stamp (section 257).,
(4) Sale of a counterfeit stamp (section 258).,
(5) Possession of a counterfeit stamp (section 259).,
(6) Using as genuine a stamp known to be counterfeit (section 260).,
(7) Effacing any writing from a substance bearing a stamp or removing from a,
"document a stamp used for it, with intent to cause loss to Government (section",
261).,
(8) Using a stamp known to have been before used (section 262).,
(9) Erasure of mark denoting that a stamp has been used (section 263).,
"(10) Making, uttering, or dealing in, or selling or using for postal purpose, any",
fictitious stamp; or possessing any fictitious stamp; or making or possessing,
any instrument for manufacturing fictitious stamps (section 263A).,
"[s 239] Delivery of coin, possessed with knowledge that it is counterfeit.",
"Whoever, having any counterfeit coin, which at the time when he became possessed",
"of it knew to be counterfeit, fraudulently or with intent that fraud may be committed,",
"delivers the same to any person, or attempts to induce any person to receive it shall",
be punished with imprisonment of either description for a term which may extend to,
"five years, and shall also be liable to fine.",
COMMENT.—,
"This section is directed against a person other than the coiner, who procures or obtains",
"or receives counterfeit coin, and not to the offence committed by the coiner.",
Three classes of offences are created by sections 239–243:,
"(1) Delivery to another of coin, possessed with the knowledge that it is counterfeit",
"(sections 239, 240).",
"(2) Delivery to another of coin as genuine, which when first possessed, the deliverer",
did not know to be counterfeit (section 241).,
(3) Possession of counterfeit coin by a person who knew it to be counterfeit when,
"he became possessed thereof (sections 242, 243).",
THE INDIAN PENAL CODE,
CHAPTER XII OF OFFENCES RELATING TO COIN AND GOVERNMENT,
STAMPS,
The offences described in this Chapter relate to (I) Coins and (II) Government Stamps.,
(I) Coins.—,
The offences relating to coins may be classified into three divisions:—,
"(1) Counterfeiting, (2) alteration, and (3) acts of mint employees.",
1. Counterfeiting—,
"(1) Counterfeiting coins (sections 231, 232).",
"(2) Making or selling instrument for counterfeiting (sections 233, 234).",
(3) Possession of instrument for counterfeiting (section 235).,
(4) Abetting in India the counterfeiting of coin out of India (section 236).,
"(5) Importing or exporting of counterfeit coin (sections 237, 238).",
"(6) Delivering counterfeit coin knowing it to be so (sections 239, 240).",
(7) Delivering counterfeit coin not known to be so when first possessed,
(section 241).,
"(8) Possession of counterfeit coin knowing it to be so (sections 242, 243).",
2. Alteration—,
(1) Diminishing the weight or altering the composition of any coin (sections,
"246, 247).",
(2) Altering appearance of any coin to pass it off as a different coin (sections,
"248, 249).",
(3) Delivering coin possessed with the knowledge that it is altered (sections,
"250, 251).",
"(4) Possessing altered coin knowing it to be so (sections 252, 253).",
(5) Delivering altered coin which the deliverer did not know to be altered when,
first possessed (section 254).,
3. Acts of mint employees—,
(1) Persons employed in a mint causing coin to be of a different weight or,
composition from that fixed by law (section 244).,
(2) Unlawful taking from a mint any coining instrument (section 245).,
(II) Government Stamps.—,
(1) Counterfeiting a stamp (section 255).,
(2) Possession of an instrument for counterfeiting a stamp (section 256).,
(3) Making or selling an instrument for counterfeiting a stamp (section 257).,
(4) Sale of a counterfeit stamp (section 258).,
(5) Possession of a counterfeit stamp (section 259).,
(6) Using as genuine a stamp known to be counterfeit (section 260).,
(7) Effacing any writing from a substance bearing a stamp or removing from a,
"document a stamp used for it, with intent to cause loss to Government (section",
261).,
(8) Using a stamp known to have been before used (section 262).,
(9) Erasure of mark denoting that a stamp has been used (section 263).,
"(10) Making, uttering, or dealing in, or selling or using for postal purpose, any",
fictitious stamp; or possessing any fictitious stamp; or making or possessing,
any instrument for manufacturing fictitious stamps (section 263A).,
"[s 240] Delivery of Indian coin, possessed with knowledge that it is counterfeit.",
"Whoever, having any counterfeit coin which is a counterfeit of 26.[Indian coin], and",
"which, at the time when he became possessed of it, he knew to be a counterfeit of 27.",
"[Indian coin], fraudulently or with intent that fraud may be committed, delivers the",
"same to any person, or attempts to induce any person to receive it shall be punished",
"with imprisonment of either description for a term which may extend to ten years, and",
shall also be liable to fine.,
COMMENT.—,
The offence under this section is an aggravated form of the offence described in the,
last section. This section does not apply to the actual coiner.28. It must be established,
that the accused knew that the coins were counterfeit when he became possessed of,
them.29.,
"26. Subs. by the A.O. 1950, for ""Queen's coin"".",
27. Ibid.,
"28. Ahmad Shah, (1892) PR No. 10 of 1892.",
"29. Dost Mohammad, (1937) Nag 133.",
THE INDIAN PENAL CODE,
CHAPTER XII OF OFFENCES RELATING TO COIN AND GOVERNMENT,
STAMPS,
The offences described in this Chapter relate to (I) Coins and (II) Government Stamps.,
(I) Coins.—,
The offences relating to coins may be classified into three divisions:—,
"(1) Counterfeiting, (2) alteration, and (3) acts of mint employees.",
1. Counterfeiting—,
"(1) Counterfeiting coins (sections 231, 232).",
"(2) Making or selling instrument for counterfeiting (sections 233, 234).",
(3) Possession of instrument for counterfeiting (section 235).,
(4) Abetting in India the counterfeiting of coin out of India (section 236).,
"(5) Importing or exporting of counterfeit coin (sections 237, 238).",
"(6) Delivering counterfeit coin knowing it to be so (sections 239, 240).",
(7) Delivering counterfeit coin not known to be so when first possessed,
(section 241).,
"(8) Possession of counterfeit coin knowing it to be so (sections 242, 243).",
2. Alteration—,
(1) Diminishing the weight or altering the composition of any coin (sections,
"246, 247).",
(2) Altering appearance of any coin to pass it off as a different coin (sections,
"248, 249).",
(3) Delivering coin possessed with the knowledge that it is altered (sections,
"250, 251).",
"(4) Possessing altered coin knowing it to be so (sections 252, 253).",
(5) Delivering altered coin which the deliverer did not know to be altered when,
first possessed (section 254).,
3. Acts of mint employees—,
(1) Persons employed in a mint causing coin to be of a different weight or,
composition from that fixed by law (section 244).,
(2) Unlawful taking from a mint any coining instrument (section 245).,
(II) Government Stamps.—,
(1) Counterfeiting a stamp (section 255).,
(2) Possession of an instrument for counterfeiting a stamp (section 256).,
(3) Making or selling an instrument for counterfeiting a stamp (section 257).,
(4) Sale of a counterfeit stamp (section 258).,
(5) Possession of a counterfeit stamp (section 259).,
(6) Using as genuine a stamp known to be counterfeit (section 260).,
(7) Effacing any writing from a substance bearing a stamp or removing from a,
"document a stamp used for it, with intent to cause loss to Government (section",
261).,
(8) Using a stamp known to have been before used (section 262).,
(9) Erasure of mark denoting that a stamp has been used (section 263).,
"(10) Making, uttering, or dealing in, or selling or using for postal purpose, any",
fictitious stamp; or possessing any fictitious stamp; or making or possessing,
any instrument for manufacturing fictitious stamps (section 263A).,
"[s 241] Delivery of coin as genuine, which, when first possessed, the deliverer",
did not know to be counterfeit.,
"Whoever delivers to any other person as genuine, or attempts to induce any other",
"person to receive as genuine, any counterfeit coin which he knows to be counterfeit,",
but which he did not know to be counterfeit at the time when he took it into his,
"possession, shall be punished with imprisonment of either description for a term",
"which may extend to two years, or with fine to an amount which may extend to ten",
"times the value of the coin counterfeited, or with both.",
ILLUSTRATION,
"A, a coiner, delivers counterfeit Company's rupees to his accomplice B, for the purpose",
"of uttering them. B sells the rupees to C, another utterer, who buys them knowing them",
"to be counterfeit. C pays away the rupees for goods to D, who receives them, not",
"knowing them to be counterfeit. D, after receiving the rupees, discovers that they are",
counterfeit and pays them away as if they were good. Here D is punishable only under,
"this section, but B and C are punishable under section 239 or 240, as the case may be.",
COMMENT.—,
This section applies to a casual utterer of base coins. Section 239 deals with,
professional utterers.,
THE INDIAN PENAL CODE,
CHAPTER XII OF OFFENCES RELATING TO COIN AND GOVERNMENT,
STAMPS,
The offences described in this Chapter relate to (I) Coins and (II) Government Stamps.,
(I) Coins.—,
The offences relating to coins may be classified into three divisions:—,
"(1) Counterfeiting, (2) alteration, and (3) acts of mint employees.",
1. Counterfeiting—,
"(1) Counterfeiting coins (sections 231, 232).",
"(2) Making or selling instrument for counterfeiting (sections 233, 234).",
(3) Possession of instrument for counterfeiting (section 235).,
(4) Abetting in India the counterfeiting of coin out of India (section 236).,
"(5) Importing or exporting of counterfeit coin (sections 237, 238).",
"(6) Delivering counterfeit coin knowing it to be so (sections 239, 240).",
(7) Delivering counterfeit coin not known to be so when first possessed,
(section 241).,
"(8) Possession of counterfeit coin knowing it to be so (sections 242, 243).",
2. Alteration—,
(1) Diminishing the weight or altering the composition of any coin (sections,
"246, 247).",
(2) Altering appearance of any coin to pass it off as a different coin (sections,
"248, 249).",
(3) Delivering coin possessed with the knowledge that it is altered (sections,
"250, 251).",
"(4) Possessing altered coin knowing it to be so (sections 252, 253).",
(5) Delivering altered coin which the deliverer did not know to be altered when,
first possessed (section 254).,
3. Acts of mint employees—,
(1) Persons employed in a mint causing coin to be of a different weight or,
composition from that fixed by law (section 244).,
(2) Unlawful taking from a mint any coining instrument (section 245).,
(II) Government Stamps.—,
(1) Counterfeiting a stamp (section 255).,
(2) Possession of an instrument for counterfeiting a stamp (section 256).,
(3) Making or selling an instrument for counterfeiting a stamp (section 257).,
(4) Sale of a counterfeit stamp (section 258).,
(5) Possession of a counterfeit stamp (section 259).,
(6) Using as genuine a stamp known to be counterfeit (section 260).,
(7) Effacing any writing from a substance bearing a stamp or removing from a,
"document a stamp used for it, with intent to cause loss to Government (section",
261).,
(8) Using a stamp known to have been before used (section 262).,
(9) Erasure of mark denoting that a stamp has been used (section 263).,
"(10) Making, uttering, or dealing in, or selling or using for postal purpose, any",
fictitious stamp; or possessing any fictitious stamp; or making or possessing,
any instrument for manufacturing fictitious stamps (section 263A).,
[s 242] Possession of counterfeit coin by person who knew it to be counterfeit,
when he became possessed thereof.,
"Whoever, fraudulently or with intent that fraud may be committed, is in possession of",
"counterfeit coin, having known at the time when he became possessed thereof that",
"such coin was counterfeit, shall be punished with imprisonment of either description",
"for a term which may extend to three years, and shall also be liable to fine.",
COMMENT.—,
Mere possession of a counterfeit coin is an offence under this and the following,
"section, even though no attempt is made to pass it off, provided it was kept for a",
fraudulent purpose and was originally obtained with guilty knowledge.,
THE INDIAN PENAL CODE,
CHAPTER XII OF OFFENCES RELATING TO COIN AND GOVERNMENT,
STAMPS,
The offences described in this Chapter relate to (I) Coins and (II) Government Stamps.,
(I) Coins.—,
The offences relating to coins may be classified into three divisions:—,
"(1) Counterfeiting, (2) alteration, and (3) acts of mint employees.",
1. Counterfeiting—,
"(1) Counterfeiting coins (sections 231, 232).",
"(2) Making or selling instrument for counterfeiting (sections 233, 234).",
(3) Possession of instrument for counterfeiting (section 235).,
(4) Abetting in India the counterfeiting of coin out of India (section 236).,
"(5) Importing or exporting of counterfeit coin (sections 237, 238).",
"(6) Delivering counterfeit coin knowing it to be so (sections 239, 240).",
(7) Delivering counterfeit coin not known to be so when first possessed,
(section 241).,
"(8) Possession of counterfeit coin knowing it to be so (sections 242, 243).",
2. Alteration—,
(1) Diminishing the weight or altering the composition of any coin (sections,
"246, 247).",
(2) Altering appearance of any coin to pass it off as a different coin (sections,
"248, 249).",
(3) Delivering coin possessed with the knowledge that it is altered (sections,
"250, 251).",
"(4) Possessing altered coin knowing it to be so (sections 252, 253).",
(5) Delivering altered coin which the deliverer did not know to be altered when,
first possessed (section 254).,
3. Acts of mint employees—,
(1) Persons employed in a mint causing coin to be of a different weight or,
composition from that fixed by law (section 244).,
(2) Unlawful taking from a mint any coining instrument (section 245).,
(II) Government Stamps.—,
(1) Counterfeiting a stamp (section 255).,
(2) Possession of an instrument for counterfeiting a stamp (section 256).,
(3) Making or selling an instrument for counterfeiting a stamp (section 257).,
(4) Sale of a counterfeit stamp (section 258).,
(5) Possession of a counterfeit stamp (section 259).,
(6) Using as genuine a stamp known to be counterfeit (section 260).,
(7) Effacing any writing from a substance bearing a stamp or removing from a,
"document a stamp used for it, with intent to cause loss to Government (section",
261).,
(8) Using a stamp known to have been before used (section 262).,
(9) Erasure of mark denoting that a stamp has been used (section 263).,
"(10) Making, uttering, or dealing in, or selling or using for postal purpose, any",
fictitious stamp; or possessing any fictitious stamp; or making or possessing,
any instrument for manufacturing fictitious stamps (section 263A).,
[s 243] Possession of Indian coin by person who knew it to be counterfeit when,
he became possessed thereof.,
"Whoever, fraudulently or with intent that fraud may be committed, is in possession of",
"counterfeit coin, which is a counterfeit of 30.[Indian coin], having known at the time",
"when he became possessed of it that it was counterfeit, shall be punished with",
"imprisonment of either description for a term which may extend to seven years, and",
shall also be liable to fine.,
COMMENT.—,
"For an offence under section 243, IPC, 1860, it has to be established by the prosecution",
"that accused fraudulently or with intent that fraud may be committed, came into",
"possession of counterfeit coins which were counterfeit of Indian coins, having known",
at the time he became possessed of them that they were counterfeit.31. Where the,
coins were not counterfeit coins but were in the process of being made counterfeit,
"coins, section 243 has no application.32.",
"30. Subs. by the A.O. 1950, for ""Queen's coin"".",
"31. Mohd Ibrahim v State, 1968 Cr LJ 1377 (Del).",
"32. Ranchhod Mula v State, 1960 Cr LJ 472 (Guj).",
THE INDIAN PENAL CODE,
CHAPTER XII OF OFFENCES RELATING TO COIN AND GOVERNMENT,
STAMPS,
The offences described in this Chapter relate to (I) Coins and (II) Government Stamps.,
(I) Coins.—,
The offences relating to coins may be classified into three divisions:—,
"(1) Counterfeiting, (2) alteration, and (3) acts of mint employees.",
1. Counterfeiting—,
"(1) Counterfeiting coins (sections 231, 232).",
"(2) Making or selling instrument for counterfeiting (sections 233, 234).",
(3) Possession of instrument for counterfeiting (section 235).,
(4) Abetting in India the counterfeiting of coin out of India (section 236).,
"(5) Importing or exporting of counterfeit coin (sections 237, 238).",
"(6) Delivering counterfeit coin knowing it to be so (sections 239, 240).",
(7) Delivering counterfeit coin not known to be so when first possessed,
(section 241).,
"(8) Possession of counterfeit coin knowing it to be so (sections 242, 243).",
2. Alteration—,
(1) Diminishing the weight or altering the composition of any coin (sections,
"246, 247).",
(2) Altering appearance of any coin to pass it off as a different coin (sections,
"248, 249).",
(3) Delivering coin possessed with the knowledge that it is altered (sections,
"250, 251).",
"(4) Possessing altered coin knowing it to be so (sections 252, 253).",
(5) Delivering altered coin which the deliverer did not know to be altered when,
first possessed (section 254).,
3. Acts of mint employees—,
(1) Persons employed in a mint causing coin to be of a different weight or,
composition from that fixed by law (section 244).,
(2) Unlawful taking from a mint any coining instrument (section 245).,
(II) Government Stamps.—,
(1) Counterfeiting a stamp (section 255).,
(2) Possession of an instrument for counterfeiting a stamp (section 256).,
(3) Making or selling an instrument for counterfeiting a stamp (section 257).,
(4) Sale of a counterfeit stamp (section 258).,
(5) Possession of a counterfeit stamp (section 259).,
(6) Using as genuine a stamp known to be counterfeit (section 260).,
(7) Effacing any writing from a substance bearing a stamp or removing from a,
"document a stamp used for it, with intent to cause loss to Government (section",
261).,
(8) Using a stamp known to have been before used (section 262).,
(9) Erasure of mark denoting that a stamp has been used (section 263).,
"(10) Making, uttering, or dealing in, or selling or using for postal purpose, any",
fictitious stamp; or possessing any fictitious stamp; or making or possessing,
any instrument for manufacturing fictitious stamps (section 263A).,
[s 244] Person employed in mint causing coin to be of different weight or,
composition from that fixed by law.,
"Whoever, being employed in any mint lawfully established in 33.[India], does any act,",
"or omits what he is legally bound to do, with the intention of causing any coin issued",
from that mint to be of a different weight or composition from the weight or,
"composition fixed by law, shall be punished with imprisonment of either description",
"for a term which may extend to seven years, and shall also be liable to fine.",
COMMENT.—,
The object of this section is to secure purity of coinage and its exact conformity to the,
legal standard against the act or omission of person employed in mints. The law has,
fixed the weight and composition of various coins and has declared in what cases they,
shall be a legal tender.,
"33. The words ""British India"" have successively been subs. by the A.O. 1948, the A.O. 1950 and",
"Act 3 of 1951, section 3 and Sch. (w.e.f. 1 April 1951), to read as above.",
THE INDIAN PENAL CODE,
CHAPTER XII OF OFFENCES RELATING TO COIN AND GOVERNMENT,
STAMPS,
The offences described in this Chapter relate to (I) Coins and (II) Government Stamps.,
(I) Coins.—,
The offences relating to coins may be classified into three divisions:—,
"(1) Counterfeiting, (2) alteration, and (3) acts of mint employees.",
1. Counterfeiting—,
"(1) Counterfeiting coins (sections 231, 232).",
"(2) Making or selling instrument for counterfeiting (sections 233, 234).",
(3) Possession of instrument for counterfeiting (section 235).,
(4) Abetting in India the counterfeiting of coin out of India (section 236).,
"(5) Importing or exporting of counterfeit coin (sections 237, 238).",
"(6) Delivering counterfeit coin knowing it to be so (sections 239, 240).",
(7) Delivering counterfeit coin not known to be so when first possessed,
(section 241).,
"(8) Possession of counterfeit coin knowing it to be so (sections 242, 243).",
2. Alteration—,
(1) Diminishing the weight or altering the composition of any coin (sections,
"246, 247).",
(2) Altering appearance of any coin to pass it off as a different coin (sections,
"248, 249).",
(3) Delivering coin possessed with the knowledge that it is altered (sections,
"250, 251).",
"(4) Possessing altered coin knowing it to be so (sections 252, 253).",
(5) Delivering altered coin which the deliverer did not know to be altered when,
first possessed (section 254).,
3. Acts of mint employees—,
(1) Persons employed in a mint causing coin to be of a different weight or,
composition from that fixed by law (section 244).,
(2) Unlawful taking from a mint any coining instrument (section 245).,
(II) Government Stamps.—,
(1) Counterfeiting a stamp (section 255).,
(2) Possession of an instrument for counterfeiting a stamp (section 256).,
(3) Making or selling an instrument for counterfeiting a stamp (section 257).,
(4) Sale of a counterfeit stamp (section 258).,
(5) Possession of a counterfeit stamp (section 259).,
(6) Using as genuine a stamp known to be counterfeit (section 260).,
(7) Effacing any writing from a substance bearing a stamp or removing from a,
"document a stamp used for it, with intent to cause loss to Government (section",
261).,
(8) Using a stamp known to have been before used (section 262).,
(9) Erasure of mark denoting that a stamp has been used (section 263).,
"(10) Making, uttering, or dealing in, or selling or using for postal purpose, any",
fictitious stamp; or possessing any fictitious stamp; or making or possessing,
any instrument for manufacturing fictitious stamps (section 263A).,
[s 245] Unlawfully taking coining instrument from mint.,
"Whoever, without lawful authority, takes out of any mint, lawfully established in 34.",
"[India], any coining tool or instrument, shall be punished with imprisonment of either",
"description for a term which may extend to seven years, and shall also be liable to",
fine.,
"34. The words ""British India"" have successively been subs. by the A.O. 1948, the A.O. 1950 and",
"Act 3 of 1951, section 3 and Sch. (w.e.f. 1 April 1951), to read as above.",
THE INDIAN PENAL CODE,
CHAPTER XII OF OFFENCES RELATING TO COIN AND GOVERNMENT,
STAMPS,
The offences described in this Chapter relate to (I) Coins and (II) Government Stamps.,
(I) Coins.—,
The offences relating to coins may be classified into three divisions:—,
"(1) Counterfeiting, (2) alteration, and (3) acts of mint employees.",
1. Counterfeiting—,
"(1) Counterfeiting coins (sections 231, 232).",
"(2) Making or selling instrument for counterfeiting (sections 233, 234).",
(3) Possession of instrument for counterfeiting (section 235).,
(4) Abetting in India the counterfeiting of coin out of India (section 236).,
"(5) Importing or exporting of counterfeit coin (sections 237, 238).",
"(6) Delivering counterfeit coin knowing it to be so (sections 239, 240).",
(7) Delivering counterfeit coin not known to be so when first possessed,
(section 241).,
"(8) Possession of counterfeit coin knowing it to be so (sections 242, 243).",
2. Alteration—,
(1) Diminishing the weight or altering the composition of any coin (sections,
"246, 247).",
(2) Altering appearance of any coin to pass it off as a different coin (sections,
"248, 249).",
(3) Delivering coin possessed with the knowledge that it is altered (sections,
"250, 251).",
"(4) Possessing altered coin knowing it to be so (sections 252, 253).",
(5) Delivering altered coin which the deliverer did not know to be altered when,
first possessed (section 254).,
3. Acts of mint employees—,
(1) Persons employed in a mint causing coin to be of a different weight or,
composition from that fixed by law (section 244).,
(2) Unlawful taking from a mint any coining instrument (section 245).,
(II) Government Stamps.—,
(1) Counterfeiting a stamp (section 255).,
(2) Possession of an instrument for counterfeiting a stamp (section 256).,
(3) Making or selling an instrument for counterfeiting a stamp (section 257).,
(4) Sale of a counterfeit stamp (section 258).,
(5) Possession of a counterfeit stamp (section 259).,
(6) Using as genuine a stamp known to be counterfeit (section 260).,
(7) Effacing any writing from a substance bearing a stamp or removing from a,
"document a stamp used for it, with intent to cause loss to Government (section",
261).,
(8) Using a stamp known to have been before used (section 262).,
(9) Erasure of mark denoting that a stamp has been used (section 263).,
"(10) Making, uttering, or dealing in, or selling or using for postal purpose, any",
fictitious stamp; or possessing any fictitious stamp; or making or possessing,
any instrument for manufacturing fictitious stamps (section 263A).,
[s 246] Fraudulently or dishonestly diminishing weight or altering composition,
of coin.,
Whoever fraudulently or dishonestly performs on any coin any operation which,
"diminishes the weight or alters the composition of that coin, shall be punished with",
"imprisonment of either description for a term which may extend to three years, and",
shall also be liable to fine.,
Explanation.—A person who scoops out part of the coin and puts anything else into,
the cavity alters the composition of that coin.,
THE INDIAN PENAL CODE,
CHAPTER XII OF OFFENCES RELATING TO COIN AND GOVERNMENT,
STAMPS,
The offences described in this Chapter relate to (I) Coins and (II) Government Stamps.,
(I) Coins.—,
The offences relating to coins may be classified into three divisions:—,
"(1) Counterfeiting, (2) alteration, and (3) acts of mint employees.",
1. Counterfeiting—,
"(1) Counterfeiting coins (sections 231, 232).",
"(2) Making or selling instrument for counterfeiting (sections 233, 234).",
(3) Possession of instrument for counterfeiting (section 235).,
(4) Abetting in India the counterfeiting of coin out of India (section 236).,
"(5) Importing or exporting of counterfeit coin (sections 237, 238).",
"(6) Delivering counterfeit coin knowing it to be so (sections 239, 240).",
(7) Delivering counterfeit coin not known to be so when first possessed,
(section 241).,
"(8) Possession of counterfeit coin knowing it to be so (sections 242, 243).",
2. Alteration—,
(1) Diminishing the weight or altering the composition of any coin (sections,
"246, 247).",
(2) Altering appearance of any coin to pass it off as a different coin (sections,
"248, 249).",
(3) Delivering coin possessed with the knowledge that it is altered (sections,
"250, 251).",
"(4) Possessing altered coin knowing it to be so (sections 252, 253).",
(5) Delivering altered coin which the deliverer did not know to be altered when,
first possessed (section 254).,
3. Acts of mint employees—,
(1) Persons employed in a mint causing coin to be of a different weight or,
composition from that fixed by law (section 244).,
(2) Unlawful taking from a mint any coining instrument (section 245).,
(II) Government Stamps.—,
(1) Counterfeiting a stamp (section 255).,
(2) Possession of an instrument for counterfeiting a stamp (section 256).,
(3) Making or selling an instrument for counterfeiting a stamp (section 257).,
(4) Sale of a counterfeit stamp (section 258).,
(5) Possession of a counterfeit stamp (section 259).,
(6) Using as genuine a stamp known to be counterfeit (section 260).,
(7) Effacing any writing from a substance bearing a stamp or removing from a,
"document a stamp used for it, with intent to cause loss to Government (section",
261).,
(8) Using a stamp known to have been before used (section 262).,
(9) Erasure of mark denoting that a stamp has been used (section 263).,
"(10) Making, uttering, or dealing in, or selling or using for postal purpose, any",
fictitious stamp; or possessing any fictitious stamp; or making or possessing,
any instrument for manufacturing fictitious stamps (section 263A).,
[s 247] Fraudulently or dishonestly diminishing weight or altering composition,
of Indian coin.,
Whoever fraudulently or dishonestly performs on any 35.[Indian coin] any operation,
"which diminishes the weight or alters the composition of that coin, shall be punished",
"with imprisonment of either description for a term which may extend to seven years,",
and shall also be liable to fine.,
"35. Subs. by the A.O. 1950, for ""any of the Queen's coin"".",
THE INDIAN PENAL CODE,
CHAPTER XII OF OFFENCES RELATING TO COIN AND GOVERNMENT,
STAMPS,
The offences described in this Chapter relate to (I) Coins and (II) Government Stamps.,
(I) Coins.—,
The offences relating to coins may be classified into three divisions:—,
"(1) Counterfeiting, (2) alteration, and (3) acts of mint employees.",
1. Counterfeiting—,
"(1) Counterfeiting coins (sections 231, 232).",
"(2) Making or selling instrument for counterfeiting (sections 233, 234).",
(3) Possession of instrument for counterfeiting (section 235).,
(4) Abetting in India the counterfeiting of coin out of India (section 236).,
"(5) Importing or exporting of counterfeit coin (sections 237, 238).",
"(6) Delivering counterfeit coin knowing it to be so (sections 239, 240).",
(7) Delivering counterfeit coin not known to be so when first possessed,
(section 241).,
"(8) Possession of counterfeit coin knowing it to be so (sections 242, 243).",
2. Alteration—,
(1) Diminishing the weight or altering the composition of any coin (sections,
"246, 247).",
(2) Altering appearance of any coin to pass it off as a different coin (sections,
"248, 249).",
(3) Delivering coin possessed with the knowledge that it is altered (sections,
"250, 251).",
"(4) Possessing altered coin knowing it to be so (sections 252, 253).",
(5) Delivering altered coin which the deliverer did not know to be altered when,
first possessed (section 254).,
3. Acts of mint employees—,
(1) Persons employed in a mint causing coin to be of a different weight or,
composition from that fixed by law (section 244).,
(2) Unlawful taking from a mint any coining instrument (section 245).,
(II) Government Stamps.—,
(1) Counterfeiting a stamp (section 255).,
(2) Possession of an instrument for counterfeiting a stamp (section 256).,
(3) Making or selling an instrument for counterfeiting a stamp (section 257).,
(4) Sale of a counterfeit stamp (section 258).,
(5) Possession of a counterfeit stamp (section 259).,
(6) Using as genuine a stamp known to be counterfeit (section 260).,
(7) Effacing any writing from a substance bearing a stamp or removing from a,
"document a stamp used for it, with intent to cause loss to Government (section",
261).,
(8) Using a stamp known to have been before used (section 262).,
(9) Erasure of mark denoting that a stamp has been used (section 263).,
"(10) Making, uttering, or dealing in, or selling or using for postal purpose, any",
fictitious stamp; or possessing any fictitious stamp; or making or possessing,
any instrument for manufacturing fictitious stamps (section 263A).,
[s 248] Altering appearance of coin with intent that it shall pass as coin of,
different description.,
"Whoever performs on any coin any operation which alters the appearance of that coin,",
"with the intention that the said coin shall pass as a coin of a different description,",
shall be punished with imprisonment of either description for a term which may,
"extend to three years, and shall also be liable to fine.",
COMMENT.—,
This section refers to any operation which alters the appearance of a coin with the,
"intention that the said coin shall pass as a coin of a different description, e.g., gilding,",
"silvering. If the weight of the coin is diminished, either section 246 or section 247",
applies.,
THE INDIAN PENAL CODE,
CHAPTER XII OF OFFENCES RELATING TO COIN AND GOVERNMENT,
STAMPS,
The offences described in this Chapter relate to (I) Coins and (II) Government Stamps.,
(I) Coins.—,
The offences relating to coins may be classified into three divisions:—,
"(1) Counterfeiting, (2) alteration, and (3) acts of mint employees.",
1. Counterfeiting—,
"(1) Counterfeiting coins (sections 231, 232).",
"(2) Making or selling instrument for counterfeiting (sections 233, 234).",
(3) Possession of instrument for counterfeiting (section 235).,
(4) Abetting in India the counterfeiting of coin out of India (section 236).,
"(5) Importing or exporting of counterfeit coin (sections 237, 238).",
"(6) Delivering counterfeit coin knowing it to be so (sections 239, 240).",
(7) Delivering counterfeit coin not known to be so when first possessed,
(section 241).,
"(8) Possession of counterfeit coin knowing it to be so (sections 242, 243).",
2. Alteration—,
(1) Diminishing the weight or altering the composition of any coin (sections,
"246, 247).",
(2) Altering appearance of any coin to pass it off as a different coin (sections,
"248, 249).",
(3) Delivering coin possessed with the knowledge that it is altered (sections,
"250, 251).",
"(4) Possessing altered coin knowing it to be so (sections 252, 253).",
(5) Delivering altered coin which the deliverer did not know to be altered when,
first possessed (section 254).,
3. Acts of mint employees—,
(1) Persons employed in a mint causing coin to be of a different weight or,
composition from that fixed by law (section 244).,
(2) Unlawful taking from a mint any coining instrument (section 245).,
(II) Government Stamps.—,
(1) Counterfeiting a stamp (section 255).,
(2) Possession of an instrument for counterfeiting a stamp (section 256).,
(3) Making or selling an instrument for counterfeiting a stamp (section 257).,
(4) Sale of a counterfeit stamp (section 258).,
(5) Possession of a counterfeit stamp (section 259).,
(6) Using as genuine a stamp known to be counterfeit (section 260).,
(7) Effacing any writing from a substance bearing a stamp or removing from a,
"document a stamp used for it, with intent to cause loss to Government (section",
261).,
(8) Using a stamp known to have been before used (section 262).,
(9) Erasure of mark denoting that a stamp has been used (section 263).,
"(10) Making, uttering, or dealing in, or selling or using for postal purpose, any",
fictitious stamp; or possessing any fictitious stamp; or making or possessing,
any instrument for manufacturing fictitious stamps (section 263A).,
[s 249] Altering appearance of Indian coin with intent that it shall pass as coin,
of different description.,
Whoever performs on any 36.[Indian coin] any operation which alters the appearance,
"of that coin, with the intention that the said coin shall pass as a coin of a different",
"description, shall be punished with imprisonment of either description for a term",
"which may extend to seven years, and shall also be liable to fine.",
"36. Subs. by the A.O. 1950, for ""any of the Queen's coin"".",
THE INDIAN PENAL CODE,
CHAPTER XII OF OFFENCES RELATING TO COIN AND GOVERNMENT,
STAMPS,
The offences described in this Chapter relate to (I) Coins and (II) Government Stamps.,
(I) Coins.—,
The offences relating to coins may be classified into three divisions:—,
"(1) Counterfeiting, (2) alteration, and (3) acts of mint employees.",
1. Counterfeiting—,
"(1) Counterfeiting coins (sections 231, 232).",
"(2) Making or selling instrument for counterfeiting (sections 233, 234).",
(3) Possession of instrument for counterfeiting (section 235).,
(4) Abetting in India the counterfeiting of coin out of India (section 236).,
"(5) Importing or exporting of counterfeit coin (sections 237, 238).",
"(6) Delivering counterfeit coin knowing it to be so (sections 239, 240).",
(7) Delivering counterfeit coin not known to be so when first possessed,
(section 241).,
"(8) Possession of counterfeit coin knowing it to be so (sections 242, 243).",
2. Alteration—,
(1) Diminishing the weight or altering the composition of any coin (sections,
"246, 247).",
(2) Altering appearance of any coin to pass it off as a different coin (sections,
"248, 249).",
(3) Delivering coin possessed with the knowledge that it is altered (sections,
"250, 251).",
"(4) Possessing altered coin knowing it to be so (sections 252, 253).",
(5) Delivering altered coin which the deliverer did not know to be altered when,
first possessed (section 254).,
3. Acts of mint employees—,
(1) Persons employed in a mint causing coin to be of a different weight or,
composition from that fixed by law (section 244).,
(2) Unlawful taking from a mint any coining instrument (section 245).,
(II) Government Stamps.—,
(1) Counterfeiting a stamp (section 255).,
(2) Possession of an instrument for counterfeiting a stamp (section 256).,
(3) Making or selling an instrument for counterfeiting a stamp (section 257).,
(4) Sale of a counterfeit stamp (section 258).,
(5) Possession of a counterfeit stamp (section 259).,
(6) Using as genuine a stamp known to be counterfeit (section 260).,
(7) Effacing any writing from a substance bearing a stamp or removing from a,
"document a stamp used for it, with intent to cause loss to Government (section",
261).,
(8) Using a stamp known to have been before used (section 262).,
(9) Erasure of mark denoting that a stamp has been used (section 263).,
"(10) Making, uttering, or dealing in, or selling or using for postal purpose, any",
fictitious stamp; or possessing any fictitious stamp; or making or possessing,
any instrument for manufacturing fictitious stamps (section 263A).,
[s 250] Delivery of coin possessed with knowledge that it is altered.,
"Whoever, having coin in his possession with respect to which the offence defined in",
"section 246 or 248 has been committed, and having known at the time when he",
became possessed of such coin that such offence had been committed with respect,
"to it, fraudulently or with intent that fraud may be committed, delivers such coin to any",
"other person, or attempts to induce any other person to receive the same, shall be",
punished with imprisonment of either description for a term which may extend to five,
"years, and shall also be liable to fine.",
COMMENT.—,
This and the following section are intended to punish persons who are traders in,
spurious or altered coins. They correspond to sections 239 and 240. There must be,
both possession with knowledge and fraudulent delivery.,
THE INDIAN PENAL CODE,
CHAPTER XII OF OFFENCES RELATING TO COIN AND GOVERNMENT,
STAMPS,
The offences described in this Chapter relate to (I) Coins and (II) Government Stamps.,
(I) Coins.—,
The offences relating to coins may be classified into three divisions:—,
"(1) Counterfeiting, (2) alteration, and (3) acts of mint employees.",
1. Counterfeiting—,
"(1) Counterfeiting coins (sections 231, 232).",
"(2) Making or selling instrument for counterfeiting (sections 233, 234).",
(3) Possession of instrument for counterfeiting (section 235).,
(4) Abetting in India the counterfeiting of coin out of India (section 236).,
"(5) Importing or exporting of counterfeit coin (sections 237, 238).",
"(6) Delivering counterfeit coin knowing it to be so (sections 239, 240).",
(7) Delivering counterfeit coin not known to be so when first possessed,
(section 241).,
"(8) Possession of counterfeit coin knowing it to be so (sections 242, 243).",
2. Alteration—,
(1) Diminishing the weight or altering the composition of any coin (sections,
"246, 247).",
(2) Altering appearance of any coin to pass it off as a different coin (sections,
"248, 249).",
(3) Delivering coin possessed with the knowledge that it is altered (sections,
"250, 251).",
"(4) Possessing altered coin knowing it to be so (sections 252, 253).",
(5) Delivering altered coin which the deliverer did not know to be altered when,
first possessed (section 254).,
3. Acts of mint employees—,
(1) Persons employed in a mint causing coin to be of a different weight or,
composition from that fixed by law (section 244).,
(2) Unlawful taking from a mint any coining instrument (section 245).,
(II) Government Stamps.—,
(1) Counterfeiting a stamp (section 255).,
(2) Possession of an instrument for counterfeiting a stamp (section 256).,
(3) Making or selling an instrument for counterfeiting a stamp (section 257).,
(4) Sale of a counterfeit stamp (section 258).,
(5) Possession of a counterfeit stamp (section 259).,
(6) Using as genuine a stamp known to be counterfeit (section 260).,
(7) Effacing any writing from a substance bearing a stamp or removing from a,
"document a stamp used for it, with intent to cause loss to Government (section",
261).,
(8) Using a stamp known to have been before used (section 262).,
(9) Erasure of mark denoting that a stamp has been used (section 263).,
"(10) Making, uttering, or dealing in, or selling or using for postal purpose, any",
fictitious stamp; or possessing any fictitious stamp; or making or possessing,
any instrument for manufacturing fictitious stamps (section 263A).,
[s 251] Delivery of Indian coin possessed with knowledge that it is altered.,
"Whoever, having coin in his possession with respect to which the offence defined in",
"section 247 or 249 has been committed, and having known at the time when he",
became possessed of such coin that such offence had been committed with respect,
"to it, fraudulently or with intent that fraud may be committed, delivers such coin to any",
"other person, or attempts to induce any other person to receive the same, shall be",
punished with imprisonment of either description for a term which may extend to ten,
"years, and shall also be liable to fine.",
THE INDIAN PENAL CODE,
CHAPTER XII OF OFFENCES RELATING TO COIN AND GOVERNMENT,
STAMPS,
The offences described in this Chapter relate to (I) Coins and (II) Government Stamps.,
(I) Coins.—,
The offences relating to coins may be classified into three divisions:—,
"(1) Counterfeiting, (2) alteration, and (3) acts of mint employees.",
1. Counterfeiting—,
"(1) Counterfeiting coins (sections 231, 232).",
"(2) Making or selling instrument for counterfeiting (sections 233, 234).",
(3) Possession of instrument for counterfeiting (section 235).,
(4) Abetting in India the counterfeiting of coin out of India (section 236).,
"(5) Importing or exporting of counterfeit coin (sections 237, 238).",
"(6) Delivering counterfeit coin knowing it to be so (sections 239, 240).",
(7) Delivering counterfeit coin not known to be so when first possessed,
(section 241).,
"(8) Possession of counterfeit coin knowing it to be so (sections 242, 243).",
2. Alteration—,
(1) Diminishing the weight or altering the composition of any coin (sections,
"246, 247).",
(2) Altering appearance of any coin to pass it off as a different coin (sections,
"248, 249).",
(3) Delivering coin possessed with the knowledge that it is altered (sections,
"250, 251).",
"(4) Possessing altered coin knowing it to be so (sections 252, 253).",
(5) Delivering altered coin which the deliverer did not know to be altered when,
first possessed (section 254).,
3. Acts of mint employees—,
(1) Persons employed in a mint causing coin to be of a different weight or,
composition from that fixed by law (section 244).,
(2) Unlawful taking from a mint any coining instrument (section 245).,
(II) Government Stamps.—,
(1) Counterfeiting a stamp (section 255).,
(2) Possession of an instrument for counterfeiting a stamp (section 256).,
(3) Making or selling an instrument for counterfeiting a stamp (section 257).,
(4) Sale of a counterfeit stamp (section 258).,
(5) Possession of a counterfeit stamp (section 259).,
(6) Using as genuine a stamp known to be counterfeit (section 260).,
(7) Effacing any writing from a substance bearing a stamp or removing from a,
"document a stamp used for it, with intent to cause loss to Government (section",
261).,
(8) Using a stamp known to have been before used (section 262).,
(9) Erasure of mark denoting that a stamp has been used (section 263).,
"(10) Making, uttering, or dealing in, or selling or using for postal purpose, any",
fictitious stamp; or possessing any fictitious stamp; or making or possessing,
any instrument for manufacturing fictitious stamps (section 263A).,
[s 252] Possession of coin by person who knew it to be altered when he,
became possessed thereof.,
"Whoever, fraudulently or with intent that fraud may be committed, is in possession of",
coin with respect to which the offence defined in either of the section 246 or 248 has,
"been committed, having known at the time of becoming possessed thereof that such",
"offence had been committed with respect to such coin, shall be punished with",
"imprisonment of either description for a term which may extend to three years, and",
shall also be liable to fine.,
COMMENT.—,
"Possession of debased or altered coin by the professional dealer, with fraudulent",
intention is made punishable by this section. This and the next section resemble,
sections 242 and 243. Under sections 250 and 251 the accused is punished for,
"uttering, under this section and the next he is punished for possessing a coin in respect",
of which the offence defined either in section 246 or section 247 has been committed.,
THE INDIAN PENAL CODE,
CHAPTER XII OF OFFENCES RELATING TO COIN AND GOVERNMENT,
STAMPS,
The offences described in this Chapter relate to (I) Coins and (II) Government Stamps.,
(I) Coins.—,
The offences relating to coins may be classified into three divisions:—,
"(1) Counterfeiting, (2) alteration, and (3) acts of mint employees.",
1. Counterfeiting—,
"(1) Counterfeiting coins (sections 231, 232).",
"(2) Making or selling instrument for counterfeiting (sections 233, 234).",
(3) Possession of instrument for counterfeiting (section 235).,
(4) Abetting in India the counterfeiting of coin out of India (section 236).,
"(5) Importing or exporting of counterfeit coin (sections 237, 238).",
"(6) Delivering counterfeit coin knowing it to be so (sections 239, 240).",
(7) Delivering counterfeit coin not known to be so when first possessed,
(section 241).,
"(8) Possession of counterfeit coin knowing it to be so (sections 242, 243).",
2. Alteration—,
(1) Diminishing the weight or altering the composition of any coin (sections,
"246, 247).",
(2) Altering appearance of any coin to pass it off as a different coin (sections,
"248, 249).",
(3) Delivering coin possessed with the knowledge that it is altered (sections,
"250, 251).",
"(4) Possessing altered coin knowing it to be so (sections 252, 253).",
(5) Delivering altered coin which the deliverer did not know to be altered when,
first possessed (section 254).,
3. Acts of mint employees—,
(1) Persons employed in a mint causing coin to be of a different weight or,
composition from that fixed by law (section 244).,
(2) Unlawful taking from a mint any coining instrument (section 245).,
(II) Government Stamps.—,
(1) Counterfeiting a stamp (section 255).,
(2) Possession of an instrument for counterfeiting a stamp (section 256).,
(3) Making or selling an instrument for counterfeiting a stamp (section 257).,
(4) Sale of a counterfeit stamp (section 258).,
(5) Possession of a counterfeit stamp (section 259).,
(6) Using as genuine a stamp known to be counterfeit (section 260).,
(7) Effacing any writing from a substance bearing a stamp or removing from a,
"document a stamp used for it, with intent to cause loss to Government (section",
261).,
(8) Using a stamp known to have been before used (section 262).,
(9) Erasure of mark denoting that a stamp has been used (section 263).,
"(10) Making, uttering, or dealing in, or selling or using for postal purpose, any",
fictitious stamp; or possessing any fictitious stamp; or making or possessing,
any instrument for manufacturing fictitious stamps (section 263A).,
[s 253] Possession of Indian coin by person who knew it to be altered when he,
became possessed thereof.,
"Whoever, fraudulently or with intent that fraud may be committed, is in possession of",
coin with respect to which the offence defined in either of the section 247 or 249 has,
"been committed, having known at the time of becoming possessed thereof, that such",
"offence had been committed with respect to such coin, shall be punished with",
"imprisonment of either description for a term which may extend to five years, and",
shall also be liable to fine.,
THE INDIAN PENAL CODE,
CHAPTER XII OF OFFENCES RELATING TO COIN AND GOVERNMENT,
STAMPS,
The offences described in this Chapter relate to (I) Coins and (II) Government Stamps.,
(I) Coins.—,
The offences relating to coins may be classified into three divisions:—,
"(1) Counterfeiting, (2) alteration, and (3) acts of mint employees.",
1. Counterfeiting—,
"(1) Counterfeiting coins (sections 231, 232).",
"(2) Making or selling instrument for counterfeiting (sections 233, 234).",
(3) Possession of instrument for counterfeiting (section 235).,
(4) Abetting in India the counterfeiting of coin out of India (section 236).,
"(5) Importing or exporting of counterfeit coin (sections 237, 238).",
"(6) Delivering counterfeit coin knowing it to be so (sections 239, 240).",
(7) Delivering counterfeit coin not known to be so when first possessed,
(section 241).,
"(8) Possession of counterfeit coin knowing it to be so (sections 242, 243).",
2. Alteration—,
(1) Diminishing the weight or altering the composition of any coin (sections,
"246, 247).",
(2) Altering appearance of any coin to pass it off as a different coin (sections,
"248, 249).",
(3) Delivering coin possessed with the knowledge that it is altered (sections,
"250, 251).",
"(4) Possessing altered coin knowing it to be so (sections 252, 253).",
(5) Delivering altered coin which the deliverer did not know to be altered when,
first possessed (section 254).,
3. Acts of mint employees—,
(1) Persons employed in a mint causing coin to be of a different weight or,
composition from that fixed by law (section 244).,
(2) Unlawful taking from a mint any coining instrument (section 245).,
(II) Government Stamps.—,
(1) Counterfeiting a stamp (section 255).,
(2) Possession of an instrument for counterfeiting a stamp (section 256).,
(3) Making or selling an instrument for counterfeiting a stamp (section 257).,
(4) Sale of a counterfeit stamp (section 258).,
(5) Possession of a counterfeit stamp (section 259).,
(6) Using as genuine a stamp known to be counterfeit (section 260).,
(7) Effacing any writing from a substance bearing a stamp or removing from a,
"document a stamp used for it, with intent to cause loss to Government (section",
261).,
(8) Using a stamp known to have been before used (section 262).,
(9) Erasure of mark denoting that a stamp has been used (section 263).,
"(10) Making, uttering, or dealing in, or selling or using for postal purpose, any",
fictitious stamp; or possessing any fictitious stamp; or making or possessing,
any instrument for manufacturing fictitious stamps (section 263A).,
"[s 254] Delivery of coin as genuine which, when first possessed, the deliverer",
did not know to be altered.,
Whoever delivers to any other person as genuine or as a coin of a different description,
"from what it is, or attempts to induce any person to receive as genuine, or as a",
"different coin from what it is, any coin in respect of which he knows that any such",
"operation as that mentioned in section 246, 247, 248 or 249 has been performed, but",
"in respect of which he did not, at the time when he took it into his possession, know",
"that such operation had been performed, shall be punished with imprisonment of",
"either description for a term which may extend to two years, or with fine to an amount",
which may extend to ten times the value of the coin for which the altered coin is,
"passed, or attempted to be passed.",
COMMENT.—,
Section 241 corresponds to this section. Where possession is acquired innocently but,
on subsequent knowledge that the coin is counterfeit if a person passes it off or,
"attempts to pass it off as a genuine coin, he will be punished under this section.",
THE INDIAN PENAL CODE,
CHAPTER XII OF OFFENCES RELATING TO COIN AND GOVERNMENT,
STAMPS,
The offences described in this Chapter relate to (I) Coins and (II) Government Stamps.,
(I) Coins.—,
The offences relating to coins may be classified into three divisions:—,
"(1) Counterfeiting, (2) alteration, and (3) acts of mint employees.",
1. Counterfeiting—,
"(1) Counterfeiting coins (sections 231, 232).",
"(2) Making or selling instrument for counterfeiting (sections 233, 234).",
(3) Possession of instrument for counterfeiting (section 235).,
(4) Abetting in India the counterfeiting of coin out of India (section 236).,
"(5) Importing or exporting of counterfeit coin (sections 237, 238).",
"(6) Delivering counterfeit coin knowing it to be so (sections 239, 240).",
(7) Delivering counterfeit coin not known to be so when first possessed,
(section 241).,
"(8) Possession of counterfeit coin knowing it to be so (sections 242, 243).",
2. Alteration—,
(1) Diminishing the weight or altering the composition of any coin (sections,
"246, 247).",
(2) Altering appearance of any coin to pass it off as a different coin (sections,
"248, 249).",
(3) Delivering coin possessed with the knowledge that it is altered (sections,
"250, 251).",
"(4) Possessing altered coin knowing it to be so (sections 252, 253).",
(5) Delivering altered coin which the deliverer did not know to be altered when,
first possessed (section 254).,
3. Acts of mint employees—,
(1) Persons employed in a mint causing coin to be of a different weight or,
composition from that fixed by law (section 244).,
(2) Unlawful taking from a mint any coining instrument (section 245).,
(II) Government Stamps.—,
(1) Counterfeiting a stamp (section 255).,
(2) Possession of an instrument for counterfeiting a stamp (section 256).,
(3) Making or selling an instrument for counterfeiting a stamp (section 257).,
(4) Sale of a counterfeit stamp (section 258).,
(5) Possession of a counterfeit stamp (section 259).,
(6) Using as genuine a stamp known to be counterfeit (section 260).,
(7) Effacing any writing from a substance bearing a stamp or removing from a,
"document a stamp used for it, with intent to cause loss to Government (section",
261).,
(8) Using a stamp known to have been before used (section 262).,
(9) Erasure of mark denoting that a stamp has been used (section 263).,
"(10) Making, uttering, or dealing in, or selling or using for postal purpose, any",
fictitious stamp; or possessing any fictitious stamp; or making or possessing,
any instrument for manufacturing fictitious stamps (section 263A).,
[s 255] Counterfeiting Government stamp.,
"Whoever counterfeits, or knowingly performs any part of the process of",
"counterfeiting, any stamp issued by Government for the purpose of revenue, shall be",
"punished with 37.[imprisonment for life], or with imprisonment of either description",
"for a term which may extend to ten years, and shall also be liable to fine.",
Explanation.—A person commits this offence who counterfeits by causing a genuine,
stamp of one denomination to appear like a genuine stamp of a different,
denomination.,
COMMENT.—,
This and the remaining sections of the Chapter deal with offences relating to,
"Government stamps. These stamps are impressions upon paper, parchment, or any",
"material used for writing, made by the Government mostly for the purpose of revenue.",
A stamp does not cease to be a stamp because it is cancelled. A person selling a,
"forged stamp, although it bears a cancellation mark commits an offence of selling",
forged stamps.38.,
"37. Subs. by Act 26 of 1955, section 117 and Sch, for ""transportation for life"" (w.e.f. 1 January",
1956).,
"38. Lowden, (1914) 1 KB 144 .",
THE INDIAN PENAL CODE,
CHAPTER XII OF OFFENCES RELATING TO COIN AND GOVERNMENT,
STAMPS,
The offences described in this Chapter relate to (I) Coins and (II) Government Stamps.,
(I) Coins.—,
The offences relating to coins may be classified into three divisions:—,
"(1) Counterfeiting, (2) alteration, and (3) acts of mint employees.",
1. Counterfeiting—,
"(1) Counterfeiting coins (sections 231, 232).",
"(2) Making or selling instrument for counterfeiting (sections 233, 234).",
(3) Possession of instrument for counterfeiting (section 235).,
(4) Abetting in India the counterfeiting of coin out of India (section 236).,
"(5) Importing or exporting of counterfeit coin (sections 237, 238).",
"(6) Delivering counterfeit coin knowing it to be so (sections 239, 240).",
(7) Delivering counterfeit coin not known to be so when first possessed,
(section 241).,
"(8) Possession of counterfeit coin knowing it to be so (sections 242, 243).",
2. Alteration—,
(1) Diminishing the weight or altering the composition of any coin (sections,
"246, 247).",
(2) Altering appearance of any coin to pass it off as a different coin (sections,
"248, 249).",
(3) Delivering coin possessed with the knowledge that it is altered (sections,
"250, 251).",
"(4) Possessing altered coin knowing it to be so (sections 252, 253).",
(5) Delivering altered coin which the deliverer did not know to be altered when,
first possessed (section 254).,
3. Acts of mint employees—,
(1) Persons employed in a mint causing coin to be of a different weight or,
composition from that fixed by law (section 244).,
(2) Unlawful taking from a mint any coining instrument (section 245).,
(II) Government Stamps.—,
(1) Counterfeiting a stamp (section 255).,
(2) Possession of an instrument for counterfeiting a stamp (section 256).,
(3) Making or selling an instrument for counterfeiting a stamp (section 257).,
(4) Sale of a counterfeit stamp (section 258).,
(5) Possession of a counterfeit stamp (section 259).,
(6) Using as genuine a stamp known to be counterfeit (section 260).,
(7) Effacing any writing from a substance bearing a stamp or removing from a,
"document a stamp used for it, with intent to cause loss to Government (section",
261).,
(8) Using a stamp known to have been before used (section 262).,
(9) Erasure of mark denoting that a stamp has been used (section 263).,
"(10) Making, uttering, or dealing in, or selling or using for postal purpose, any",
fictitious stamp; or possessing any fictitious stamp; or making or possessing,
any instrument for manufacturing fictitious stamps (section 263A).,
[s 256] Having possession of instrument or material for counterfeiting,
Government stamp.,
Whoever has in his possession any instrument or material for the purpose of being,
"used, or knowing or having reason to believe that it is intended to be used, for the",
purpose of counterfeiting any stamp issued by Government for the purpose of,
"revenue, shall be punished with imprisonment of either description for a term which",
"may extend to seven years, and shall also be liable to fine.",
COMMENT.—,
This section resembles section 235.,
THE INDIAN PENAL CODE,
CHAPTER XII OF OFFENCES RELATING TO COIN AND GOVERNMENT,
STAMPS,
The offences described in this Chapter relate to (I) Coins and (II) Government Stamps.,
(I) Coins.—,
The offences relating to coins may be classified into three divisions:—,
"(1) Counterfeiting, (2) alteration, and (3) acts of mint employees.",
1. Counterfeiting—,
"(1) Counterfeiting coins (sections 231, 232).",
"(2) Making or selling instrument for counterfeiting (sections 233, 234).",
(3) Possession of instrument for counterfeiting (section 235).,
(4) Abetting in India the counterfeiting of coin out of India (section 236).,
"(5) Importing or exporting of counterfeit coin (sections 237, 238).",
"(6) Delivering counterfeit coin knowing it to be so (sections 239, 240).",
(7) Delivering counterfeit coin not known to be so when first possessed,
(section 241).,
"(8) Possession of counterfeit coin knowing it to be so (sections 242, 243).",
2. Alteration—,
(1) Diminishing the weight or altering the composition of any coin (sections,
"246, 247).",
(2) Altering appearance of any coin to pass it off as a different coin (sections,
"248, 249).",
(3) Delivering coin possessed with the knowledge that it is altered (sections,
"250, 251).",
"(4) Possessing altered coin knowing it to be so (sections 252, 253).",
(5) Delivering altered coin which the deliverer did not know to be altered when,
first possessed (section 254).,
3. Acts of mint employees—,
(1) Persons employed in a mint causing coin to be of a different weight or,
composition from that fixed by law (section 244).,
(2) Unlawful taking from a mint any coining instrument (section 245).,
(II) Government Stamps.—,
(1) Counterfeiting a stamp (section 255).,
(2) Possession of an instrument for counterfeiting a stamp (section 256).,
(3) Making or selling an instrument for counterfeiting a stamp (section 257).,
(4) Sale of a counterfeit stamp (section 258).,
(5) Possession of a counterfeit stamp (section 259).,
(6) Using as genuine a stamp known to be counterfeit (section 260).,
(7) Effacing any writing from a substance bearing a stamp or removing from a,
"document a stamp used for it, with intent to cause loss to Government (section",
261).,
(8) Using a stamp known to have been before used (section 262).,
(9) Erasure of mark denoting that a stamp has been used (section 263).,
"(10) Making, uttering, or dealing in, or selling or using for postal purpose, any",
fictitious stamp; or possessing any fictitious stamp; or making or possessing,
any instrument for manufacturing fictitious stamps (section 263A).,
[s 257] Making or selling instrument for counterfeiting Government stamp.,
"Whoever makes or performs any part of the process of making, or buys, or sells, or",
"disposes of, any instrument for the purpose of being used, or knowing or having",
"reason to believe that it is intended to be used, for the purpose of counterfeiting any",
"stamp issued by Government for the purpose of revenue, shall be punished with",
"imprisonment of either description for a term which may extend to seven years, and",
shall also be liable to fine.,
COMMENT.—,
This section corresponds to section 234.,
THE INDIAN PENAL CODE,
CHAPTER XII OF OFFENCES RELATING TO COIN AND GOVERNMENT,
STAMPS,
The offences described in this Chapter relate to (I) Coins and (II) Government Stamps.,
(I) Coins.—,
The offences relating to coins may be classified into three divisions:—,
"(1) Counterfeiting, (2) alteration, and (3) acts of mint employees.",
1. Counterfeiting—,
"(1) Counterfeiting coins (sections 231, 232).",
"(2) Making or selling instrument for counterfeiting (sections 233, 234).",
(3) Possession of instrument for counterfeiting (section 235).,
(4) Abetting in India the counterfeiting of coin out of India (section 236).,
"(5) Importing or exporting of counterfeit coin (sections 237, 238).",
"(6) Delivering counterfeit coin knowing it to be so (sections 239, 240).",
(7) Delivering counterfeit coin not known to be so when first possessed,
(section 241).,
"(8) Possession of counterfeit coin knowing it to be so (sections 242, 243).",
2. Alteration—,
(1) Diminishing the weight or altering the composition of any coin (sections,
"246, 247).",
(2) Altering appearance of any coin to pass it off as a different coin (sections,
"248, 249).",
(3) Delivering coin possessed with the knowledge that it is altered (sections,
"250, 251).",
"(4) Possessing altered coin knowing it to be so (sections 252, 253).",
(5) Delivering altered coin which the deliverer did not know to be altered when,
first possessed (section 254).,
3. Acts of mint employees—,
(1) Persons employed in a mint causing coin to be of a different weight or,
composition from that fixed by law (section 244).,
(2) Unlawful taking from a mint any coining instrument (section 245).,
(II) Government Stamps.—,
(1) Counterfeiting a stamp (section 255).,
(2) Possession of an instrument for counterfeiting a stamp (section 256).,
(3) Making or selling an instrument for counterfeiting a stamp (section 257).,
(4) Sale of a counterfeit stamp (section 258).,
(5) Possession of a counterfeit stamp (section 259).,
(6) Using as genuine a stamp known to be counterfeit (section 260).,
(7) Effacing any writing from a substance bearing a stamp or removing from a,
"document a stamp used for it, with intent to cause loss to Government (section",
261).,
(8) Using a stamp known to have been before used (section 262).,
(9) Erasure of mark denoting that a stamp has been used (section 263).,
"(10) Making, uttering, or dealing in, or selling or using for postal purpose, any",
fictitious stamp; or possessing any fictitious stamp; or making or possessing,
any instrument for manufacturing fictitious stamps (section 263A).,
[s 258] Sale of counterfeit Government stamp.,
"Whoever, sells, or offers for sale, any stamp which he knows or has reason to believe",
"to be a counterfeit of any stamp issued by Government for the purpose of revenue,",
shall be punished with imprisonment of either description for a term which may,
"extend to seven years, and shall also be liable to fine.",
THE INDIAN PENAL CODE,
CHAPTER XII OF OFFENCES RELATING TO COIN AND GOVERNMENT,
STAMPS,
The offences described in this Chapter relate to (I) Coins and (II) Government Stamps.,
(I) Coins.—,
The offences relating to coins may be classified into three divisions:—,
"(1) Counterfeiting, (2) alteration, and (3) acts of mint employees.",
1. Counterfeiting—,
"(1) Counterfeiting coins (sections 231, 232).",
"(2) Making or selling instrument for counterfeiting (sections 233, 234).",
(3) Possession of instrument for counterfeiting (section 235).,
(4) Abetting in India the counterfeiting of coin out of India (section 236).,
"(5) Importing or exporting of counterfeit coin (sections 237, 238).",
"(6) Delivering counterfeit coin knowing it to be so (sections 239, 240).",
(7) Delivering counterfeit coin not known to be so when first possessed,
(section 241).,
"(8) Possession of counterfeit coin knowing it to be so (sections 242, 243).",
2. Alteration—,
(1) Diminishing the weight or altering the composition of any coin (sections,
"246, 247).",
(2) Altering appearance of any coin to pass it off as a different coin (sections,
"248, 249).",
(3) Delivering coin possessed with the knowledge that it is altered (sections,
"250, 251).",
"(4) Possessing altered coin knowing it to be so (sections 252, 253).",
(5) Delivering altered coin which the deliverer did not know to be altered when,
first possessed (section 254).,
3. Acts of mint employees—,
(1) Persons employed in a mint causing coin to be of a different weight or,
composition from that fixed by law (section 244).,
(2) Unlawful taking from a mint any coining instrument (section 245).,
(II) Government Stamps.—,
(1) Counterfeiting a stamp (section 255).,
(2) Possession of an instrument for counterfeiting a stamp (section 256).,
(3) Making or selling an instrument for counterfeiting a stamp (section 257).,
(4) Sale of a counterfeit stamp (section 258).,
(5) Possession of a counterfeit stamp (section 259).,
(6) Using as genuine a stamp known to be counterfeit (section 260).,
(7) Effacing any writing from a substance bearing a stamp or removing from a,
"document a stamp used for it, with intent to cause loss to Government (section",
261).,
(8) Using a stamp known to have been before used (section 262).,
(9) Erasure of mark denoting that a stamp has been used (section 263).,
"(10) Making, uttering, or dealing in, or selling or using for postal purpose, any",
fictitious stamp; or possessing any fictitious stamp; or making or possessing,
any instrument for manufacturing fictitious stamps (section 263A).,
[s 259] Having possession of counterfeit Government stamp.,
Whoever has in his possession any stamp which he knows to be a counterfeit of any,
"stamp issued by Government for the purpose of revenue, intending to use, or dispose",
"of the same as a genuine stamp, or in order that it may be used as a genuine stamp,",
shall be punished with imprisonment of either description for a term which may,
"extend to seven years, and shall also be liable to fine.",
COMMENT.—,
This section corresponds to section 243.,
THE INDIAN PENAL CODE,
CHAPTER XII OF OFFENCES RELATING TO COIN AND GOVERNMENT,
STAMPS,
The offences described in this Chapter relate to (I) Coins and (II) Government Stamps.,
(I) Coins.—,
The offences relating to coins may be classified into three divisions:—,
"(1) Counterfeiting, (2) alteration, and (3) acts of mint employees.",
1. Counterfeiting—,
"(1) Counterfeiting coins (sections 231, 232).",
"(2) Making or selling instrument for counterfeiting (sections 233, 234).",
(3) Possession of instrument for counterfeiting (section 235).,
(4) Abetting in India the counterfeiting of coin out of India (section 236).,
"(5) Importing or exporting of counterfeit coin (sections 237, 238).",
"(6) Delivering counterfeit coin knowing it to be so (sections 239, 240).",
(7) Delivering counterfeit coin not known to be so when first possessed,
(section 241).,
"(8) Possession of counterfeit coin knowing it to be so (sections 242, 243).",
2. Alteration—,
(1) Diminishing the weight or altering the composition of any coin (sections,
"246, 247).",
(2) Altering appearance of any coin to pass it off as a different coin (sections,
"248, 249).",
(3) Delivering coin possessed with the knowledge that it is altered (sections,
"250, 251).",
"(4) Possessing altered coin knowing it to be so (sections 252, 253).",
(5) Delivering altered coin which the deliverer did not know to be altered when,
first possessed (section 254).,
3. Acts of mint employees—,
(1) Persons employed in a mint causing coin to be of a different weight or,
composition from that fixed by law (section 244).,
(2) Unlawful taking from a mint any coining instrument (section 245).,
(II) Government Stamps.—,
(1) Counterfeiting a stamp (section 255).,
(2) Possession of an instrument for counterfeiting a stamp (section 256).,
(3) Making or selling an instrument for counterfeiting a stamp (section 257).,
(4) Sale of a counterfeit stamp (section 258).,
(5) Possession of a counterfeit stamp (section 259).,
(6) Using as genuine a stamp known to be counterfeit (section 260).,
(7) Effacing any writing from a substance bearing a stamp or removing from a,
"document a stamp used for it, with intent to cause loss to Government (section",
261).,
(8) Using a stamp known to have been before used (section 262).,
(9) Erasure of mark denoting that a stamp has been used (section 263).,
"(10) Making, uttering, or dealing in, or selling or using for postal purpose, any",
fictitious stamp; or possessing any fictitious stamp; or making or possessing,
any instrument for manufacturing fictitious stamps (section 263A).,
[s 260] Using as genuine a Government stamp known to be counterfeit.,
"Whoever uses as genuine any stamp, knowing it to be counterfeit of any stamp issued",
"by Government for the purpose of revenue, shall be punished with imprisonment of",
"either description for a term which may extend to seven years, or with fine, or with",
both.,
COMMENT.—,
This section corresponds to section 254.,
THE INDIAN PENAL CODE,
CHAPTER XII OF OFFENCES RELATING TO COIN AND GOVERNMENT,
STAMPS,
The offences described in this Chapter relate to (I) Coins and (II) Government Stamps.,
(I) Coins.—,
The offences relating to coins may be classified into three divisions:—,
"(1) Counterfeiting, (2) alteration, and (3) acts of mint employees.",
1. Counterfeiting—,
"(1) Counterfeiting coins (sections 231, 232).",
"(2) Making or selling instrument for counterfeiting (sections 233, 234).",
(3) Possession of instrument for counterfeiting (section 235).,
(4) Abetting in India the counterfeiting of coin out of India (section 236).,
"(5) Importing or exporting of counterfeit coin (sections 237, 238).",
"(6) Delivering counterfeit coin knowing it to be so (sections 239, 240).",
(7) Delivering counterfeit coin not known to be so when first possessed,
(section 241).,
"(8) Possession of counterfeit coin knowing it to be so (sections 242, 243).",
2. Alteration—,
(1) Diminishing the weight or altering the composition of any coin (sections,
"246, 247).",
(2) Altering appearance of any coin to pass it off as a different coin (sections,
"248, 249).",
(3) Delivering coin possessed with the knowledge that it is altered (sections,
"250, 251).",
"(4) Possessing altered coin knowing it to be so (sections 252, 253).",
(5) Delivering altered coin which the deliverer did not know to be altered when,
first possessed (section 254).,
3. Acts of mint employees—,
(1) Persons employed in a mint causing coin to be of a different weight or,
composition from that fixed by law (section 244).,
(2) Unlawful taking from a mint any coining instrument (section 245).,
(II) Government Stamps.—,
(1) Counterfeiting a stamp (section 255).,
(2) Possession of an instrument for counterfeiting a stamp (section 256).,
(3) Making or selling an instrument for counterfeiting a stamp (section 257).,
(4) Sale of a counterfeit stamp (section 258).,
(5) Possession of a counterfeit stamp (section 259).,
(6) Using as genuine a stamp known to be counterfeit (section 260).,
(7) Effacing any writing from a substance bearing a stamp or removing from a,
"document a stamp used for it, with intent to cause loss to Government (section",
261).,
(8) Using a stamp known to have been before used (section 262).,
(9) Erasure of mark denoting that a stamp has been used (section 263).,
"(10) Making, uttering, or dealing in, or selling or using for postal purpose, any",
fictitious stamp; or possessing any fictitious stamp; or making or possessing,
any instrument for manufacturing fictitious stamps (section 263A).,
"[s 261] Effacing writing from substance bearing Government stamp, or",
"removing from document a stamp used for it, with intent to cause loss to",
Government.,
"Whoever, fraudulently or with intent to cause loss to the Government, removes or",
"effaces from any substance, bearing any stamp issued by Government for the",
"purpose of revenue, any writing or document for which such stamp has been used, or",
removes from any writing or document a stamp which has been used for such writing,
"or document, in order that such stamp may be used for a different writing or",
"document, shall be punished with imprisonment of either description for a term which",
"may extend to three years, or with fine, or with both.",
COMMENT.—,
This section may be compared with sections 246 and 248. It punishes (1) the effacing,
"of a writing from a stamp, and (2) removing of a stamp from a document.",
THE INDIAN PENAL CODE,
CHAPTER XII OF OFFENCES RELATING TO COIN AND GOVERNMENT,
STAMPS,
The offences described in this Chapter relate to (I) Coins and (II) Government Stamps.,
(I) Coins.—,
The offences relating to coins may be classified into three divisions:—,
"(1) Counterfeiting, (2) alteration, and (3) acts of mint employees.",
1. Counterfeiting—,
"(1) Counterfeiting coins (sections 231, 232).",
"(2) Making or selling instrument for counterfeiting (sections 233, 234).",
(3) Possession of instrument for counterfeiting (section 235).,
(4) Abetting in India the counterfeiting of coin out of India (section 236).,
"(5) Importing or exporting of counterfeit coin (sections 237, 238).",
"(6) Delivering counterfeit coin knowing it to be so (sections 239, 240).",
(7) Delivering counterfeit coin not known to be so when first possessed,
(section 241).,
"(8) Possession of counterfeit coin knowing it to be so (sections 242, 243).",
2. Alteration—,
(1) Diminishing the weight or altering the composition of any coin (sections,
"246, 247).",
(2) Altering appearance of any coin to pass it off as a different coin (sections,
"248, 249).",
(3) Delivering coin possessed with the knowledge that it is altered (sections,
"250, 251).",
"(4) Possessing altered coin knowing it to be so (sections 252, 253).",
(5) Delivering altered coin which the deliverer did not know to be altered when,
first possessed (section 254).,
3. Acts of mint employees—,
(1) Persons employed in a mint causing coin to be of a different weight or,
composition from that fixed by law (section 244).,
(2) Unlawful taking from a mint any coining instrument (section 245).,
(II) Government Stamps.—,
(1) Counterfeiting a stamp (section 255).,
(2) Possession of an instrument for counterfeiting a stamp (section 256).,
(3) Making or selling an instrument for counterfeiting a stamp (section 257).,
(4) Sale of a counterfeit stamp (section 258).,
(5) Possession of a counterfeit stamp (section 259).,
(6) Using as genuine a stamp known to be counterfeit (section 260).,
(7) Effacing any writing from a substance bearing a stamp or removing from a,
"document a stamp used for it, with intent to cause loss to Government (section",
261).,
(8) Using a stamp known to have been before used (section 262).,
(9) Erasure of mark denoting that a stamp has been used (section 263).,
"(10) Making, uttering, or dealing in, or selling or using for postal purpose, any",
fictitious stamp; or possessing any fictitious stamp; or making or possessing,
any instrument for manufacturing fictitious stamps (section 263A).,
[s 262] Using Government stamp known to have been before used.,
"Whoever, fraudulently or with intent to cause loss to the Government, uses for any",
"purpose a stamp issued by Government for the purpose of revenue, which he knows",
"to have been before used, shall be punished with imprisonment of either description",
"for a term which may extend to two years, or with fine, or with both.",
COMMENT.—,
Under this section the fraudulent use of a stamp already used is made punishable.,
THE INDIAN PENAL CODE,
CHAPTER XII OF OFFENCES RELATING TO COIN AND GOVERNMENT,
STAMPS,
The offences described in this Chapter relate to (I) Coins and (II) Government Stamps.,
(I) Coins.—,
The offences relating to coins may be classified into three divisions:—,
"(1) Counterfeiting, (2) alteration, and (3) acts of mint employees.",
1. Counterfeiting—,
"(1) Counterfeiting coins (sections 231, 232).",
"(2) Making or selling instrument for counterfeiting (sections 233, 234).",
(3) Possession of instrument for counterfeiting (section 235).,
(4) Abetting in India the counterfeiting of coin out of India (section 236).,
"(5) Importing or exporting of counterfeit coin (sections 237, 238).",
"(6) Delivering counterfeit coin knowing it to be so (sections 239, 240).",
(7) Delivering counterfeit coin not known to be so when first possessed,
(section 241).,
"(8) Possession of counterfeit coin knowing it to be so (sections 242, 243).",
2. Alteration—,
(1) Diminishing the weight or altering the composition of any coin (sections,
"246, 247).",
(2) Altering appearance of any coin to pass it off as a different coin (sections,
"248, 249).",
(3) Delivering coin possessed with the knowledge that it is altered (sections,
"250, 251).",
"(4) Possessing altered coin knowing it to be so (sections 252, 253).",
(5) Delivering altered coin which the deliverer did not know to be altered when,
first possessed (section 254).,
3. Acts of mint employees—,
(1) Persons employed in a mint causing coin to be of a different weight or,
composition from that fixed by law (section 244).,
(2) Unlawful taking from a mint any coining instrument (section 245).,
(II) Government Stamps.—,
(1) Counterfeiting a stamp (section 255).,
(2) Possession of an instrument for counterfeiting a stamp (section 256).,
(3) Making or selling an instrument for counterfeiting a stamp (section 257).,
(4) Sale of a counterfeit stamp (section 258).,
(5) Possession of a counterfeit stamp (section 259).,
(6) Using as genuine a stamp known to be counterfeit (section 260).,
(7) Effacing any writing from a substance bearing a stamp or removing from a,
"document a stamp used for it, with intent to cause loss to Government (section",
261).,
(8) Using a stamp known to have been before used (section 262).,
(9) Erasure of mark denoting that a stamp has been used (section 263).,
"(10) Making, uttering, or dealing in, or selling or using for postal purpose, any",
fictitious stamp; or possessing any fictitious stamp; or making or possessing,
any instrument for manufacturing fictitious stamps (section 263A).,
[s 263] Erasure of mark denoting that stamp has been used.,
"Whoever, fraudulently or with intent to cause loss to Government, erases or removes",
"from a stamp issued by the Government for the purpose of revenue, any mark, put or",
"impressed upon such stamp for the purpose of denoting that the same has been used,",
or knowingly has in his possession or sells or disposes of any such stamp from which,
"such mark has been erased or removed, or sells or disposes of any such stamp which",
"he knows to have been used, shall be punished with imprisonment of either",
"description for a term which may extend to three years, or with fine, or with both.",
COMMENT.—,
This section punishes (1) erasure or removal of a mark denoting that a stamp has been,
"used, (2) knowingly possessing any such stamp, and (3) selling or disposing of any",
such stamp.,
THE INDIAN PENAL CODE,
CHAPTER XII OF OFFENCES RELATING TO COIN AND GOVERNMENT,
STAMPS,
The offences described in this Chapter relate to (I) Coins and (II) Government Stamps.,
(I) Coins.—,
The offences relating to coins may be classified into three divisions:—,
"(1) Counterfeiting, (2) alteration, and (3) acts of mint employees.",
1. Counterfeiting—,
"(1) Counterfeiting coins (sections 231, 232).",
"(2) Making or selling instrument for counterfeiting (sections 233, 234).",
(3) Possession of instrument for counterfeiting (section 235).,
(4) Abetting in India the counterfeiting of coin out of India (section 236).,
"(5) Importing or exporting of counterfeit coin (sections 237, 238).",
"(6) Delivering counterfeit coin knowing it to be so (sections 239, 240).",
(7) Delivering counterfeit coin not known to be so when first possessed,
(section 241).,
"(8) Possession of counterfeit coin knowing it to be so (sections 242, 243).",
2. Alteration—,
(1) Diminishing the weight or altering the composition of any coin (sections,
"246, 247).",
(2) Altering appearance of any coin to pass it off as a different coin (sections,
"248, 249).",
(3) Delivering coin possessed with the knowledge that it is altered (sections,
"250, 251).",
"(4) Possessing altered coin knowing it to be so (sections 252, 253).",
(5) Delivering altered coin which the deliverer did not know to be altered when,
first possessed (section 254).,
3. Acts of mint employees—,
(1) Persons employed in a mint causing coin to be of a different weight or,
composition from that fixed by law (section 244).,
(2) Unlawful taking from a mint any coining instrument (section 245).,
(II) Government Stamps.—,
(1) Counterfeiting a stamp (section 255).,
(2) Possession of an instrument for counterfeiting a stamp (section 256).,
(3) Making or selling an instrument for counterfeiting a stamp (section 257).,
(4) Sale of a counterfeit stamp (section 258).,
(5) Possession of a counterfeit stamp (section 259).,
(6) Using as genuine a stamp known to be counterfeit (section 260).,
(7) Effacing any writing from a substance bearing a stamp or removing from a,
"document a stamp used for it, with intent to cause loss to Government (section",
261).,
(8) Using a stamp known to have been before used (section 262).,
(9) Erasure of mark denoting that a stamp has been used (section 263).,
"(10) Making, uttering, or dealing in, or selling or using for postal purpose, any",
fictitious stamp; or possessing any fictitious stamp; or making or possessing,
any instrument for manufacturing fictitious stamps (section 263A).,
[s 263A] Prohibition of fictitious stamps.,
(1) Whoever—,
"(a) makes, knowingly utters, deals in or sells any fictitious stamps, or",
"knowingly uses for any postal purpose any fictitious stamp, or",
"(b) has in his possession, without lawful excuse, any fictitious stamp, or",
"(c) makes or, without lawful excuse, has in his possession any die, plate,",
"instrument or materials for making any fictitious stamp,",
shall be punished with fine which may extend to two hundred rupees.,
"(2) Any such stamps, die, plate, instrument or materials in the possession of any",
"person for making any fictitious stamp 39.[may be seized and, if seized] shall",
be forfeited.,
"(3) In this section ""fictitious stamp"" means any stamp falsely purporting to be",
"issued by the Government for the purpose of denoting a rate of postage, or any",
"facsimile or imitation or representation, whether on paper or otherwise, of any",
"stamp issued by Government, for that purpose.",
"(4) In this section and also in sections 255 to 263, both inclusive, the word",
"""Government"", when used in connection with, or in reference to, any stamp",
"issued for the purpose of denoting a rate of postage, shall, notwithstanding",
"anything in section 17, be deemed to include the person or persons authorized",
"by law to administer executive Government in any part of India, and also in any",
part of Her Majesty's dominions or in any foreign country.,
COMMENT.—,
"This section makes it an offence to manufacture fictitious stamps, which are defined to",
be stamps purporting to be used for purposes of postage by any foreign Government. It,
was enacted for the purpose of stopping the use of fictitious stamps on letters coming,
from abroad.,
"39. Subs. by Act 42 of 1953, sec. 4 and Sch. III, for ""may be seized and"" (w.e.f. 23-12-1953).",
THE INDIAN PENAL CODE,
CHAPTER XIII OF OFFENCES RELATING TO WEIGHTS AND MEASURES,
[s 264] Fraudulent use of false instrument for weighing.,
"Whoever fraudulently uses any instrument for weighing which he knows to be false,",
shall be punished with imprisonment of either description for a term which may,
"extend to one year, or with fine, or with both.",
COMMENT.—,
Intention is an essential part of the offence under this section. The section requires two,
"things: (1) fraudulent use of any false instrument for weighing, and (2) knowledge that",
it is false. The word 'false' in this and the following sections means different from the,
"instrument, weight, or measure, which the offender and the person defrauded have",
"fixed upon, expressly or by implication, with reference to their mutual dealings. Where it",
was agreed between the seller and purchaser that a particular measure was to be used,
"in measuring the commodity sold, it was held that, even though the measure was not of",
"the standard requirement, it was not 'false' and there was no fraudulent intent within",
the meaning of this section.1.,
"1. Kanayalal, (1939) 41 Bom LR 977 .",
THE INDIAN PENAL CODE,
CHAPTER XIII OF OFFENCES RELATING TO WEIGHTS AND MEASURES,
[s 265] Fraudulent use of false weight or measure.,
"Whoever fraudulently uses any false weight or false measure of length or capacity, or",
fraudulently uses any weight or any measure of length or capacity as a different,
"weight or measure from what it is, shall be punished with imprisonment of either",
"description for a term which may extend to one year, or with fine, or with both.",
COMMENT.—,
It is clear from the above definition that the prosecution must prove three essential,
ingredients amongst others as,
"(1) a weight or measure is a false one,",
"(2) that the accused used such a weight or measure, and",
(3) that he did so fraudulently.2.,
"2. Suwalal v State, 1962 (2) Cr LJ 693.",
THE INDIAN PENAL CODE,
CHAPTER XIII OF OFFENCES RELATING TO WEIGHTS AND MEASURES,
[s 266] Being in possession of false weight or measure.,
"Whoever is in possession of any instrument for weighing, or of any weight, or of any",
"measure of length or capacity, which he knows to be false, 3.intending that the same",
"may be fraudulently used, shall be punished with imprisonment of either description",
"for a term which may extend to one year, or with fine, or with both.",
COMMENT.—,
This section punishes a person who is in possession of a false weight or measure just,
"as sections 235, 239 and 240 punish a person who is in possession of a counterfeit",
"coin, and section 259 punishes a person who is in possession of a counterfeit stamp.",
A measure is false if it is something other than what it purports to be. If both the,
"purchaser and seller are aware of the actual measure being used, there is no fraudulent",
intent as required by this section. It is only when the seller purports to sell according to,
"a certain standard, and sells below that standard, that he can be said to be guilty of",
fraud.4.,
The mere possession of false weights or measures will not in itself raise any strong,
presumption of fraud. It is necessary to show that the accused knew the scales to be,
false and intended to use them fraudulently.5.,
"3. The word and omitted by Act 42 of 1953, section 4 and Sch. III (w.e.f. 23-12-1953).",
"4. Kanayalal, (1939) 41 Bom LR 977 .",
"5. Hamirmal, (1890) Unrep Cr C 514.",
THE INDIAN PENAL CODE,
CHAPTER XIII OF OFFENCES RELATING TO WEIGHTS AND MEASURES,
[s 267] Making or selling false weight or measure.,
"Whoever makes, sells or disposes of any instrument for weighing, or any weight, or",
"any measure of length or capacity which he knows to be false, in order that the same",
"may be used as true, or knowing that the same is likely to be used as true, shall be",
punished with imprisonment of either description for a term which may extend to one,
"year, or with fine, or with both.",
COMMENT.—,
"The object of this section is to prevent the circulation of false scales, weights or",
"measures. It punishes a person who makes, sells, or disposes of a false balance,",
weight or measure.,
THE INDIAN PENAL CODE,
"CHAPTER XIV OF OFFENCES AFFECTING THE PUBLIC HEALTH, SAFETY",
"CONVENIENCE, DECENCY AND MORALS",
The following specific instances of nuisance are dealt with in this Chapter:—,
1. Act likely to spread infection (sections 269–271).,
2. Adulteration of food or drink (sections 272–273).,
3. Adulteration of drugs (sections 274–276).,
4. Fouling water of a public spring or reservoir (section 277).,
5. Making atmosphere noxious to health (section 278).,
6. Rash driving or riding (section 279).,
7. Rash navigation (sections 280-282).,
"8. Exhibition of false light, mark or buoy (section 281).",
9. Danger or obstruction in a public way or line of navigation (section 283).,
"10. Negligence in respect of poison (section 284), fire (section 285) or explosive",
substances (section 286).,
"11. Negligence in respect of machinery (section 287), building (section 288) or",
animals (section 289).,
"12. Selling obscene literature and pictures (sections 292, 293) or doing obscene",
acts (section 294).,
13. Keeping a lottery office (section 294A).,
[s 268] Public nuisance.,
"A person is guilty of a public nuisance, who does any act, or is guilty of an illegal",
"omission, which causes any common injury, danger, or annoyance to the public or to",
the people in general who dwell or occupy property in the vicinity or which must,
"necessarily cause injury, obstruction, danger, or annoyance to persons who may have",
occasion to use any public right.,
A common nuisance is not excused on the ground that it causes some convenience or,
advantage.,
COMMENT.—,
Nuisance is an inconvenience that materially interferes with the ordinary physical,
comfort of human existence. It may be public or private nuisance. As defined in section,
"268 Indian Penal Code, 1860 (IPC, 1860) public nuisance is an offence against public",
either by doing a thing which tends to the annoyance of the whole community in,
general or by neglect to do anything which the common good requires. On the,
"alternative it causes injury, obstruction, danger or annoyance to persons who may have",
occasion to use public right. It is the quantum of annoyance or discomfort in contra,
distinction to private nuisance which affects an individual is the decisive factor.1.,
Nuisance is of two kinds: (1) public and (2) private.,
(1) Public nuisance or common nuisance is an offence against the public either by,
"doing a thing, which tends to the annoyance of the whole community in general, or by",
neglecting to do anything that the common good requires. It is an act affecting the,
"public at large, or some considerable portion of them and it must interfere with rights,",
which members of the community might otherwise enjoy.,
It is not a sine qua non that the annoyance should injuriously affect every member of,
the public within its range of operation. It is sufficient that it should affect people in,
general who dwell in the vicinity.2.,
"As to when an individual can bring a civil action in respect of a public nuisance, see the",
"authors' Law of Torts, 19th Edn, chapter XXI.",
(2) Private nuisance is defined to be anything done to the hurt or annoyance of the,
"lands, tenements or hereditaments of another, and not amounting to trespass. It is an",
act affecting some particular individual or individuals as distinguished from the public,
at large. It is in the quantum of annoyance that private nuisance differs from public. It,
"cannot be the subject of an indictment, but may be the ground of a civil action for",
damages or an injunction or both.3.,
[s 268.1] Liability of owner.—,
Where the use of premises gives rise to a public nuisance it is generally the occupier,
"for the time being who is liable for it, and not the absent proprietor.4.",
[s 268.2] Civil Remedy.—,
'Private nuisance' affects some individuals as distinguished from the public at large.,
The remedies are of two kinds–civil and criminal. The remedies under the civil law are,
"of two kinds. One is under section 91 of the Code of Civil Procedure, 1908. Under it, a",
suit lies and the plaintiffs need not prove that they have sustained any special damage.,
The second remedy is a suit by a private individual for a special damage suffered by,
him.5.,
[s 268.3] Criminal remedy.—,
There are three remedies under the criminal law. The first relates to the prosecution,
"under Chapter XIV of IPC, 1860. The second provides for summary proceedings under",
"sections 133–144 of the Code of Criminal Procedure, 1973 (Cr PC, 1973) and the third",
relates to remedies under special or local laws. Sub-sections (2) of section 133 of Cr,
"PC, 1973 postulates that no order duly made by a Magistrate under this section shall be",
"called in question in any civil court. The provisions of Chapter X of the Cr PC, 1973",
"should be so worked as not to become themselves, a nuisance to the community at",
large. A lawful and necessary trade ought not to be interfered with unless it is proved to,
be injurious to the health or physical comfort of the community.6.,
[s 268.4] Noise.—,
Any noise which has the effect of materially interfering with the ordinary comforts of,
life judged by the standard of a reasonable man is nuisance. How and when a nuisance,
created by noise becomes actionable has to be answered with reference to its degree,
"and the surrounding circumstances, the place and the time.7.",
"1. Vasant Manga Nikumba v Baburao Bhikanna Naidu, (1995) Supp4 SCC 54 : (1996) 1 SCC (Cr)",
27.,
2. Ibid.,
"3. vide THE LAW OF TORTS, 19th Edn chapter XXI, by the author of this book.",
"4. Bibhuti Bhusan v Bhuban Ram, (1918) 46 Cal 515 .",
"5. Kachrulal Bhagirath Agrawal v State of Maharashtra, AIR 2004 SC 4818 [LNIND 2004 SC 960] :",
(2005) 9 SCC 36 [LNIND 2004 SC 960] .,
"6. Kachrulal Bhagirath Agrawal v State of Maharashtra, AIR 2004 SC 4818 [LNIND 2004 SC 960] :",
(2005) 9 SCC 36 [LNIND 2004 SC 960] .,
"7. Noise Pollution (V), Re v. (2005) 5 SCC 733 : JT 2005 (6) SC 210 : AIR 2005 SC 3136 .",
THE INDIAN PENAL CODE,
"CHAPTER XIV OF OFFENCES AFFECTING THE PUBLIC HEALTH, SAFETY",
"CONVENIENCE, DECENCY AND MORALS",
The following specific instances of nuisance are dealt with in this Chapter:—,
1. Act likely to spread infection (sections 269–271).,
2. Adulteration of food or drink (sections 272–273).,
3. Adulteration of drugs (sections 274–276).,
4. Fouling water of a public spring or reservoir (section 277).,
5. Making atmosphere noxious to health (section 278).,
6. Rash driving or riding (section 279).,
7. Rash navigation (sections 280-282).,
"8. Exhibition of false light, mark or buoy (section 281).",
9. Danger or obstruction in a public way or line of navigation (section 283).,
"10. Negligence in respect of poison (section 284), fire (section 285) or explosive",
substances (section 286).,
"11. Negligence in respect of machinery (section 287), building (section 288) or",
animals (section 289).,
"12. Selling obscene literature and pictures (sections 292, 293) or doing obscene",
acts (section 294).,
13. Keeping a lottery office (section 294A).,
[s 269] Negligent act likely to spread infection of disease dangerous to life.,
"Whoever unlawfully or negligently does any act which is, and which he knows or has",
"reason to believe to be, likely to spread the infection of any disease dangerous to life,",
shall be punished with imprisonment of either description for a term which may,
"extend to six months, or with fine, or with both.",
COMMENT.—,
This section is framed in order to prevent people from doing acts which are likely to,
spread infectious diseases. Welfare of the society is the primary duty of every civilised,
"State. Section 269, IPC, 1860 makes the negligent act likely to spread infection or",
disease dangerous to life as an offence. The essential ingredients are:,
(1) that the accused does any act unlawfully or negligently; that such act is likely to,
spread infection of any disease dangerous to life; and,
(2) that he knows or had reasons to believe that the act is likely to cause such,
infection.,
"Thus causing infection of the disease, which is dangerous to life, is covered by this",
"section.8. The expression ""reason to believe"" has been defined under section 26 IPC,",
"1860 and it lays down that a person said to have ""reason to believe"" a thing, if he has",
sufficient cause to believe that thing but not otherwise. A person can be supposed to,
know where there is a direct appeal to his senses. Suspicion or doubt cannot be raised,
"to the level of ""reason to believe"".9.",
"8. Dr. Meeru Bhatia Prasad v State, 2001 Cr LJ 1674 (Del).",
"9. Dr. Prabha Malhotra v State, 1999 Cr LJ 549 (All).",
THE INDIAN PENAL CODE,
"CHAPTER XIV OF OFFENCES AFFECTING THE PUBLIC HEALTH, SAFETY",
"CONVENIENCE, DECENCY AND MORALS",
The following specific instances of nuisance are dealt with in this Chapter:—,
1. Act likely to spread infection (sections 269–271).,
2. Adulteration of food or drink (sections 272–273).,
3. Adulteration of drugs (sections 274–276).,
4. Fouling water of a public spring or reservoir (section 277).,
5. Making atmosphere noxious to health (section 278).,
6. Rash driving or riding (section 279).,
7. Rash navigation (sections 280-282).,
"8. Exhibition of false light, mark or buoy (section 281).",
9. Danger or obstruction in a public way or line of navigation (section 283).,
"10. Negligence in respect of poison (section 284), fire (section 285) or explosive",
substances (section 286).,
"11. Negligence in respect of machinery (section 287), building (section 288) or",
animals (section 289).,
"12. Selling obscene literature and pictures (sections 292, 293) or doing obscene",
acts (section 294).,
13. Keeping a lottery office (section 294A).,
[s 270] Malignant act likely to spread infection of disease dangerous to life.,
"Whoever malignantly does any act which is, and which he knows or has reason to",
"believe to be, likely to spread the infection of any disease dangerous to life, shall be",
punished with imprisonment of either description for a term which may extend to two,
"years, or with fine, or with both.",
COMMENT.—,
The offence under this section is an aggravated form of the offence punishable under,
the preceding section.,
"In this section, the use of the word 'malignantly' indicates that the person spreading",
infection should be actuated by malice.10.,
"There is no provision in the Prevention of Food Adulteration Act, 1954 which nullifies",
"sections 270–273 of the IPC, 1860 or which make them dormant and non-",
applicable.11.,
[s 270.1] Confrontation with Special Law.—,
"Even if section 270 of IPC, 1860 is invoked for supply of substandard food articles the",
"special procedure laid down under Food Safety and Standards Act, 2006 for testing and",
declaring the product as substandard should have been followed.12.,
10. 2nd Rep section 226.,
"11. Mahesh Ramchandra Jadhav v State of Maharashtra, 1999 Cr LJ 2310 (Bom).",
"12. Christy Fried Gram Industry v State of Karnataka, 2016 Cr LJ 482 (Kant) : 2016 (1) KCCR 83 .",
THE INDIAN PENAL CODE,
"CHAPTER XIV OF OFFENCES AFFECTING THE PUBLIC HEALTH, SAFETY",
"CONVENIENCE, DECENCY AND MORALS",
The following specific instances of nuisance are dealt with in this Chapter:—,
1. Act likely to spread infection (sections 269–271).,
2. Adulteration of food or drink (sections 272–273).,
3. Adulteration of drugs (sections 274–276).,
4. Fouling water of a public spring or reservoir (section 277).,
5. Making atmosphere noxious to health (section 278).,
6. Rash driving or riding (section 279).,
7. Rash navigation (sections 280-282).,
"8. Exhibition of false light, mark or buoy (section 281).",
9. Danger or obstruction in a public way or line of navigation (section 283).,
"10. Negligence in respect of poison (section 284), fire (section 285) or explosive",
substances (section 286).,
"11. Negligence in respect of machinery (section 287), building (section 288) or",
animals (section 289).,
"12. Selling obscene literature and pictures (sections 292, 293) or doing obscene",
acts (section 294).,
13. Keeping a lottery office (section 294A).,
[s 271] Disobedience to quarantine rule.,
Whoever knowingly disobeys any rule made and promulgated 13.[by the 14.[***],
"Government 15.[***] for putting any vessel into a state of quarantine, or for regulating",
the intercourse of vessels in a state of quarantine with the shore or with other,
"vessels, or for regulating the intercourse between places where an infectious disease",
"prevails and other places, shall be punished with imprisonment of either description",
"for a term which may extend to six months, or with fine, or with both.",
COMMENT.—,
The motive for disobeying any rule is quite immaterial. The disobedience is punishable,
whether any injurious consequence flows from it or not.,
"13. Subs. by the A.O. 1937, for by the Government of India or by any Government.",
14. The words Central or any Provincial omitted by the A.O. 1950.,
15. The words or the Crown Representative omitted by the A.O. 1948.,
THE INDIAN PENAL CODE,
"CHAPTER XIV OF OFFENCES AFFECTING THE PUBLIC HEALTH, SAFETY",
"CONVENIENCE, DECENCY AND MORALS",
The following specific instances of nuisance are dealt with in this Chapter:—,
1. Act likely to spread infection (sections 269–271).,
2. Adulteration of food or drink (sections 272–273).,
3. Adulteration of drugs (sections 274–276).,
4. Fouling water of a public spring or reservoir (section 277).,
5. Making atmosphere noxious to health (section 278).,
6. Rash driving or riding (section 279).,
7. Rash navigation (sections 280-282).,
"8. Exhibition of false light, mark or buoy (section 281).",
9. Danger or obstruction in a public way or line of navigation (section 283).,
"10. Negligence in respect of poison (section 284), fire (section 285) or explosive",
substances (section 286).,
"11. Negligence in respect of machinery (section 287), building (section 288) or",
animals (section 289).,
"12. Selling obscene literature and pictures (sections 292, 293) or doing obscene",
acts (section 294).,
13. Keeping a lottery office (section 294A).,
[s 272] Adulteration of food or drink intended for sale.,
"Whoever adulterates any article of food or drink, so as to make such article noxious",
"as food or drink, intending to sell such article as food or drink, or knowing it to be",
"likely that the same will be sold as food or drink, shall be punished with imprisonment",
"of either description for a term which may extend to six months, or with fine which",
"may extend to one thousand rupees, or with both.",
State Amendments,
"Orissa.—1. The following amendments were made by Orissa Act No. 3 of 1999, s. 2.",
"In its application to the State of Orissa, in sections 272, 273, 274, 275 and 276, for the",
"words ""shall be punished with imprisonment of either description for a term which may",
"extend to six months, or with fine which may extend to one thousand rupees, or with",
"both"", substitute the following, namely:—",
"""shall be punished with imprisonment for life and shall also be liable to fine:",
"Provided that the Court may, for adequate and special reasons to be mentioned in the",
"judgment, impose a sentence of imprisonment which is less than imprisonment for",
"life.""—Orissa Act 3 of 1999, section 2.",
"2. The offence is cognizable, non-bailable and triable by Court of Session vide Orissa",
"Act No. 3 of 1999, s. 2.",
"Uttar Pradesh.—1. The following amendments were made by U.P. Act No. 47 of 1975, s.",
3(1) (w.e.f. 15-9-1975).,
"In its application to the State of Uttar Pradesh, in s. 272, for the words ""shall be",
"punished with imprisonment of either description, for a term which may extend to six",
"months or with fine which may extend to one thousand rupees, or with both""",
substitute the following words.—,
"""shall be punished with imprisonment for life and shall also be liable to fine:",
"Provided that the Court may, for adequate and special reasons to be mentioned in the",
"judgment, impose a sentence of imprisonment which is less than imprisonment for",
"life"".",
"2. The offence is cognizable, non-bailable and triable by Court of Session, vide U.P. Act",
No. 47 of 1975.,
"West Bengal.—1. The following amendments were made by W.B. Act No. 42 of 1973, s.",
"3(i), (w.e.f. 29-4-1973).",
"In its application to the State of West Bengal in s. 272, for the words ""of either",
"description for a term which may extend to six months, or with fine which may extend",
"to one thousand rupees, or with both"", substitute the following words—",
"""for life with or without fine:",
"Provided that the Court may, for adequate and special reasons to be mentioned in the",
"judgment, impose a sentence of imprisonment which is less than imprisonment for",
"life"".",
"2. The offence is cognizable, non-bailable and triable by Court of Session, vide W.B. Act",
No. 34 of 1974.,
COMMENT.—,
The mixing of noxious ingredients in food or drink or otherwise rendering it,
unwholesome by adulteration is punishable under this section. Mere adulteration with,
"harmless ingredients for the purpose of getting more profit is not punishable under it,",
"e.g., mixing water with milk16. or ghee (clarified butter) with vegetable oil.17.",
'Adulteration' means mixing with any other substance whether wholly different or of the,
same kind but of inferior quality.,
The expression 'noxious as food' means unwholesome as food or injurious to health,
and not repugnant to one's feelings.18. It is essential to show that an article of food or,
drink has been adulterated and that it was intended to sell such article or that it was,
known that it would be likely to be sold as food or drink.19.,
[s 272.1] Adulteration of liquor.—,
"In order to establish that the offence under section 272, IPC, 1860 has been committed,",
the prosecution has to prove that the article involved was food or drink meant to be,
"consumed by live persons, that the accused adulterated it, that such adulteration",
rendered it noxious as food or drink and that the accused at the time of such,
adulteration intended to sell such article as food or drink or knew it to be likely that,
such article would be sold as food or drink. Now noxious rendering is making it,
poisonous or harmful or both. As is plain the offence is complete on introduction of the,
"adulterant in the food or drink, provided it is meant for the purposes of sale, actual or",
likely.20.,
[s 272.2] Local Amendments.—,
"In West Bengal, sections 272, 273, 274, 275 and 276 of the Penal Code have been",
amended by section 3 of West Bengal Act XLII of 1973 so as to provide life,
imprisonment with or without fine for the aforesaid offences. By section 5 of West,
"Bengal Act XXXIV of 1974, all these offences have been made cognizable, non-bailable",
and triable by Court of Sessions. The State of Uttar Pradesh too has similarly made all,
these offences punishable with life imprisonment and fine with similar discretion of,
Court to award lesser imprisonment by virtue of Uttar Pradesh Act 47 of 1975.,
"There is no bar under the Prevention of Food Adulteration Act, 1954 and the said Rules",
made thereunder that the concerned authorities under Prevention of Food Adulteration,
Act have no jurisdiction and/or authority to prosecute the guilty person for the offences,
under the IPC based on the same averments along with the provisions of the special,
statutes. All such authorities have jurisdiction to launch a prosecution by invoking,
"various provisions of the IPC, along with the special statutes.21.",
[s 272.3] Gutka and Pan Masala.—,
"In order to find out whether the food is unsafe, due to an adulterant, the sample is to be",
sent to an analyst. Violation of the order of the Food Safety Commissioner is not an,
"offence, under section 272 IPC, 1860.22.",
"16. Chinniah, (1897) 1 Weir 228.",
"17. Chokraj Marwari, (1908) 12 Cal WN 608.",
"18. Ram Dayal v State, (1923) 46 All 94 .",
"19. Suleman Shamji, (1943) 45 Bom LR 895 . Joseph Kurian v State of Kerala, (1995) 1 Cr LJ 502",
": AIR 1995 SC 4 [LNIND 1994 SC 927] : (1994) 6 SCC 535 [LNIND 1994 SC 927] , conviction for",
"sale of adulterated arrack, sentence of six months' RI converted to simple imprisonment.",
"20. Joseph Kurian v State of Kerala, AIR 1995 SC 4 [LNIND 1994 SC 927] : (1994) 6 SCC 535",
"[LNIND 1994 SC 927] Also see EK Chandrasenan v State of Kerala, AIR 1995 SC 1066 [LNIND",
1995 SC 88] : (1995) 2 SCC 99 [LNIND 1995 SC 88] .,
"21. Rajiv Kumar Gupta v The State of Maharashtra, 2005 Cr LJ 581 (Bom).",
"22. Ganesh Pandurang Jadhao v The State of Maharashtra, 2016 Cr LJ 2401 : 2016 (2) Bom CR",
(Cr) 4 .,
THE INDIAN PENAL CODE,
"CHAPTER XIV OF OFFENCES AFFECTING THE PUBLIC HEALTH, SAFETY",
"CONVENIENCE, DECENCY AND MORALS",
The following specific instances of nuisance are dealt with in this Chapter:—,
1. Act likely to spread infection (sections 269–271).,
2. Adulteration of food or drink (sections 272–273).,
3. Adulteration of drugs (sections 274–276).,
4. Fouling water of a public spring or reservoir (section 277).,
5. Making atmosphere noxious to health (section 278).,
6. Rash driving or riding (section 279).,
7. Rash navigation (sections 280-282).,
"8. Exhibition of false light, mark or buoy (section 281).",
9. Danger or obstruction in a public way or line of navigation (section 283).,
"10. Negligence in respect of poison (section 284), fire (section 285) or explosive",
substances (section 286).,
"11. Negligence in respect of machinery (section 287), building (section 288) or",
animals (section 289).,
"12. Selling obscene literature and pictures (sections 292, 293) or doing obscene",
acts (section 294).,
13. Keeping a lottery office (section 294A).,
[s 273] Sale of noxious food or drink.,
"Whoever sells, or offers or exposes for sale, as food or drink, any article which has",
"been rendered or has become noxious, or is in a state unfit for food or drink, knowing",
"or having reason to believe that the same is noxious as food or drink, shall be",
punished with imprisonment of either description for a term which may extend to six,
"months, or with fine which may extend to one thousand rupees, or with both.",
State Amendments,
"Orissa.—1. Same as in section 272, the amendments were made by Orissa Act No. 3 of",
"1999, s. 2.",
"Uttar Pradesh.—1. The following amendments were made by U.P. Act No. 47 of 1975, s.",
"3(ii), (w.e.f. 15-9- 1975).",
"In its application to the State of Uttar Pradesh in S. 273, for the words, ""shall be",
punished with imprisonment of either description for a term which may extend to six,
"months, or with a fine which may extend to one thousand rupees or with both,",
substitute the following words.—,
"""shall be punished with imprisonment for life and shall also be liable to fine:",
"Provided that the Court may, for adequate and special reasons to be mentioned in the",
"judgment, impose a sentence of imprisonment which is less than imprisonment for",
"life.""",
"2. The offence is cognizable, non-bailable and triable by Court of Session, vide U.P. Act",
No. 47 of 1975.,
"West Bengal.—1. The following amendments were made by W.B. Act No. 42 of 1973, s.",
3(ii) (w.e.f. 29-4-1973).,
"In its application to the State of West Bengal in s. 273, for the words ""of either",
"description for a term which may extend to six months, or with fine which may extend",
"to one thousand rupees, or with both"", substitute the following,—",
"""for life with or without fine:",
"Provided that the Court may, for adequate and special reasons to be mentioned in the",
"judgment, impose a sentence of imprisonment which is less than imprisonment for",
"life.""",
"2. The offence is cognizable, non-bailable and triable by Court of Session, vide W.B. Act",
No. 34 of 1974.,
COMMENT.—,
It is not an offence to sell inferior food cheap if it is not noxious.,
[s 273.1] Ingredients.—,
This section requires three things—,
(1) Selling or offering for sale as food or drink some article.,
(2) Such article must have become noxious or must be in a state unfit for food or drink.,
(3) The sale or exposure must have been made with a knowledge or reasonable belief,
"that the article is noxious as food or drink. The word ""noxious"" as stated in Advanced",
"Law Lexicon by P Ramanatha Aiyar (3rd Edition Reprint 2009), when used in relation to",
"article of food is to mean that the article is poisonous, harmful to health or repugnant",
"to human use. Having regard to language used in section 273, noxious food or drink,",
"literally would mean article of food or drink which earlier was not noxious, but should",
have become noxious or had been rendered noxious by lapse of time or by not taking,
proper precaution or for not adding preservatives or the like.23.,
What is punishable under this section is the sale of noxious articles as food or drink,
and not the mere sale of noxious article. Where the owner of a grain pit sold the,
contents of it before it was opened at a certain sum per maund whether the grain was,
"good or bad, and on the pit being opened it was found that a large proportion of the",
"grain was unfit for human consumption, it was held that the vendor could not be",
"convicted under this section.24. Similarly, the selling of wheat containing a large",
"admixture of extraneous matter, such as dirt, wood, matches, charcoal, was held to",
constitute no offence.25.,
For local amendments see comment under section 272 ante.,
"23. Dilipsinh Ramsinh Bhatia v State of Maharashtra, 2010 Cr LJ 2014 (Bom).",
"24. Salig Ram v State, (1906) 28 All 312 .",
"25. Narumal, (1904) 6 Bom LR 520 ; Gunesha v State, (1873) PR No. 15 of 1873.",
THE INDIAN PENAL CODE,
"CHAPTER XIV OF OFFENCES AFFECTING THE PUBLIC HEALTH, SAFETY",
"CONVENIENCE, DECENCY AND MORALS",
The following specific instances of nuisance are dealt with in this Chapter:—,
1. Act likely to spread infection (sections 269–271).,
2. Adulteration of food or drink (sections 272–273).,
3. Adulteration of drugs (sections 274–276).,
4. Fouling water of a public spring or reservoir (section 277).,
5. Making atmosphere noxious to health (section 278).,
6. Rash driving or riding (section 279).,
7. Rash navigation (sections 280-282).,
"8. Exhibition of false light, mark or buoy (section 281).",
9. Danger or obstruction in a public way or line of navigation (section 283).,
"10. Negligence in respect of poison (section 284), fire (section 285) or explosive",
substances (section 286).,
"11. Negligence in respect of machinery (section 287), building (section 288) or",
animals (section 289).,
"12. Selling obscene literature and pictures (sections 292, 293) or doing obscene",
acts (section 294).,
13. Keeping a lottery office (section 294A).,
[s 274] Adulteration of drugs.,
Whoever adulterates any drug or medical preparation in such a manner as to lessen,
"the efficacy or change the operation of such drug or medical preparation, or to make it",
"noxious, intending that it shall be sold or used for, or knowing it to be likely that it will",
"be sold or used for, any medicinal purpose, as if it had not undergone such",
"adulteration, shall be punished with imprisonment of either description for a term",
"which may extend to six months, or with fine which may extend to one thousand",
"rupees, or with both.",
State Amendments,
"Orissa.—1. Same as in section 272, the amendments were made by Orissa Act No. 3 of",
"1999, s. 2.",
"Uttar Pradesh.—1. The following amendments were made by U.P. Act No. 47 of 1975, s.",
"3(ii), (w.e.f. 15-9-1975).",
"In its application to the State of Uttar Pradesh in S. 274, for the words, ""shall be",
punished with imprisonment of either description for a term which may extend to six,
"months, or with a fine which may extend to one thousand rupees or with both,",
substitute the following words.—,
"""shall be punished with imprisonment for life and shall also be liable to fine:",
"Provided that the Court may, for adequate and special reasons to be mentioned in the",
"judgment, impose a sentence of imprisonment which is less than imprisonment for",
"life.""",
"2. The offence is cognizable, non-bailable and triable by Court of Session, vide U.P. Act",
No. 47 of 1975.,
"West Bengal.—1. The following amendments were made by W.B. Act No. 42 of 1973, s.",
3(iii) (w.e.f. 29-4-1973).,
"In its application to the State of West Bengal, in s. 274, for the words ""of either",
"description for a term which may extend to six months, or with fine which may extend",
"to one thousand rupees, or with both"", substitute the following.—",
"""for life with or without fine:",
"Provided that the Court may, for adequate and special reasons to be mentioned in the",
"judgment, impose a sentence of imprisonment which is less than imprisonment for",
"life.""",
"2. The offence is cognizable, non-bailable and triable by Court of Session, vide W.B. Act",
No. 34 of 1974.,
COMMENT.—,
To preserve the purity of drugs for medicinal purposes this section is enacted. It is,
"sufficient if the efficacy of a drug is lessened, it need not necessarily become noxious",
to life.,
For local amendment see comment under section 272 ante.,
THE INDIAN PENAL CODE,
"CHAPTER XIV OF OFFENCES AFFECTING THE PUBLIC HEALTH, SAFETY",
"CONVENIENCE, DECENCY AND MORALS",
The following specific instances of nuisance are dealt with in this Chapter:—,
1. Act likely to spread infection (sections 269–271).,
2. Adulteration of food or drink (sections 272–273).,
3. Adulteration of drugs (sections 274–276).,
4. Fouling water of a public spring or reservoir (section 277).,
5. Making atmosphere noxious to health (section 278).,
6. Rash driving or riding (section 279).,
7. Rash navigation (sections 280-282).,
"8. Exhibition of false light, mark or buoy (section 281).",
9. Danger or obstruction in a public way or line of navigation (section 283).,
"10. Negligence in respect of poison (section 284), fire (section 285) or explosive",
substances (section 286).,
"11. Negligence in respect of machinery (section 287), building (section 288) or",
animals (section 289).,
"12. Selling obscene literature and pictures (sections 292, 293) or doing obscene",
acts (section 294).,
13. Keeping a lottery office (section 294A).,
[s 275] Sale of adulterated drugs.,
"Whoever, knowing any drug or medical preparation to have been adulterated in such a",
"manner as to lessen its efficacy, to change its operation, or to render it noxious, sells",
"the same, or offers or exposes it for sale, or issues it from any dispensary for",
"medicinal purposes as unadulterated, or causes it to be used for medicinal purposes",
"by any person not knowing of the adulteration, shall be punished with imprisonment",
"of either description for a term which may extend to six months, or with fine which",
"may extend to one thousand rupees, or with both.",
State Amendments,
"Orissa.—1. Same as in section 272, the amendments were made by Orissa Act No. 3 of",
"1999, s. 2.",
"Uttar Pradesh.—1. The following amendments were made by U.P. Act No. 47 of 1975, s.",
"2(iv), (w.e.f. 15-9-1975).",
"In its application to the State of Uttar Pradesh in S. 275, for the words, ""shall be",
punished with imprisonment of either description for a term which may extend to six,
"months, or with fine which may extend to one thousand rupees or with both, substitute",
the following words.—,
"""shall be punished with imprisonment for life and shall also be liable to fine:",
"Provided that the Court may, for adequate and special reasons to be mentioned in the",
"judgment, impose a sentence of imprisonment which is less than imprisonment for",
"life.""",
"2. The offence is cognizable, non-bailable and triable by Court of Session, vide U.P. Act",
No. 47 of 1975.,
"West Bengal.—1. The following amendments were made by W.B. Act No. 42 of 1973, s.",
3(iv) (w.e.f. 29-4-1973).,
"In its application to the State of West Bengal in s. 275, for the words ""of either",
"description for a term which may extend to one thousand rupees or with both"",",
"substitute the words ""for life with or without fine:",
"Provided that the Court may, for adequate and special reasons to be mentioned in the",
"judgment, impose a sentence of imprisonment which is less than imprisonment for",
"life.""",
"2. The offence is cognizable, non-bailable and triable by Court of Session, vide W.B. Act",
No. 34 of 1974.,
COMMENT.—,
"The offence under this section consists in selling, or offering, or exposing for sale, or",
"issuing from any dispensary, an adulterated drug as unadulterated. This section not",
only prohibits the sale of an adulterated drug but also its issue from any dispensary.,
"For local amendment, see comment under section 272 ante.",
THE INDIAN PENAL CODE,
"CHAPTER XIV OF OFFENCES AFFECTING THE PUBLIC HEALTH, SAFETY",
"CONVENIENCE, DECENCY AND MORALS",
The following specific instances of nuisance are dealt with in this Chapter:—,
1. Act likely to spread infection (sections 269–271).,
2. Adulteration of food or drink (sections 272–273).,
3. Adulteration of drugs (sections 274–276).,
4. Fouling water of a public spring or reservoir (section 277).,
5. Making atmosphere noxious to health (section 278).,
6. Rash driving or riding (section 279).,
7. Rash navigation (sections 280-282).,
"8. Exhibition of false light, mark or buoy (section 281).",
9. Danger or obstruction in a public way or line of navigation (section 283).,
"10. Negligence in respect of poison (section 284), fire (section 285) or explosive",
substances (section 286).,
"11. Negligence in respect of machinery (section 287), building (section 288) or",
animals (section 289).,
"12. Selling obscene literature and pictures (sections 292, 293) or doing obscene",
acts (section 294).,
13. Keeping a lottery office (section 294A).,
[s 276] Sale of drug as a different drug or preparation.,
"Whoever knowingly sells, or offers or exposes for sale, or issues from a dispensary",
"for medicinal purposes, any drug or medical preparation, as a different drug or",
"medical preparation, shall be punished with imprisonment of either description for a",
"term which may extend to six months, or with fine which may extend to one thousand",
"rupees, or with both.",
State Amendments,
"Orissa.—1. Same as in section 272, the amendments were made by Orissa Act No. 3 of",
"1999, s. 2.",
"Uttar Pradesh.—1. The following amendments were made by U.P. Act No. 47 of 1975, s.",
"3(v), (w.e.f. 15-9-1975).",
"In its application to the State of Uttar Pradesh in S. 276, for the words, ""shall be",
punished with imprisonment of either description for a term which may extend to one,
"thousand rupees, or with both, substitute the following:—",
"""shall be punished with imprisonment for life and shall also be liable to fine:",
"Provided that the Court may, for adequate and special reasons to be mentioned in the",
"judgment, impose a sentence of imprisonment which is less than imprisonment for",
"life.""",
"2. The offence is cognizable, non-bailable and triable by Court of Session, vide U.P. Act",
No. 47 of 1975.,
"West Bengal.—1. The following amendments were made by W.B. Act No. 42 of 1973, s.",
3(v) (w.e.f. 29-4-1973).,
"In its application to the State of West Bengal in s. 276, for the words ""of either",
"description for a term which may extend to, ""six months, or with fine which may extend",
"to one thousand rupees, or with both"", substitute the following:",
"""for life with or without fine:",
"Provided that the Court may, for adequate and special reasons to be mentioned in the",
"judgment, impose a sentence of imprisonment which is less than imprisonment for",
"life.""",
"2. The offence is cognizable, non-bailable and triable by Court of Session, vide W.B. Act",
No. 34 of 1974.,
COMMENT.—,
The offence constituted by this section does not involve the idea of any adulteration or,
inferiority in the substituted medicine. It is sufficient that it is not in fact what it,
"purports to be; for e.g., supplying savin instead of saffron.26.",
This section is connected with section 275 in the same way as section 274 is,
connected with section 273.,
[s 276.1] Possession as evidence of intention.—,
"Dealing with an Act for prevention of drug trafficking, the Privy Council observed in a",
case in which the accused was found in possession of the banned drug and there was,
nothing in the Act to exclude the common law rule that facts could be established by,
"inference from proven facts; therefore, the judge had applied the appropriate standard",
of proof. The accused had given no evidence to explain his possession.27.,
"For local amendment, see Comment under section 272 ante.",
"26. Knight v Bowers, (1885) 14 QBD 845 .",
"27. Sabapathee v State (Mauritius), (1999) 1 WLR 1836 (PC).",
THE INDIAN PENAL CODE,
"CHAPTER XIV OF OFFENCES AFFECTING THE PUBLIC HEALTH, SAFETY",
"CONVENIENCE, DECENCY AND MORALS",
The following specific instances of nuisance are dealt with in this Chapter:—,
1. Act likely to spread infection (sections 269–271).,
2. Adulteration of food or drink (sections 272–273).,
3. Adulteration of drugs (sections 274–276).,
4. Fouling water of a public spring or reservoir (section 277).,
5. Making atmosphere noxious to health (section 278).,
6. Rash driving or riding (section 279).,
7. Rash navigation (sections 280-282).,
"8. Exhibition of false light, mark or buoy (section 281).",
9. Danger or obstruction in a public way or line of navigation (section 283).,
"10. Negligence in respect of poison (section 284), fire (section 285) or explosive",
substances (section 286).,
"11. Negligence in respect of machinery (section 287), building (section 288) or",
animals (section 289).,
"12. Selling obscene literature and pictures (sections 292, 293) or doing obscene",
acts (section 294).,
13. Keeping a lottery office (section 294A).,
[s 277] Fouling water of public spring or reservoir.,
"Whoever voluntarily corrupts or fouls the water of any public spring or reservoir, so as",
"to render it less fit for the purpose for which it is ordinarily used, shall be punished",
"with imprisonment of either description for a term which may extend to three months,",
"or with fine which may extend to five hundred rupees, or with both.",
COMMENT.—,
The water of a public spring or reservoir belongs to every member of the public in,
"common, and if a person voluntarily fouls it he commits a public nuisance.",
[s 277.1] Ingredients.—,
The section requires—,
(1) voluntary corruption or fouling of water;,
(2) the water must be of a public spring or reservoir; and,
(3) the water must be rendered less fit for the purpose for which it is ordinarily,
used.,
"As a general rule, a place is a public place if people are allowed access to it, though",
they may have no legal right to it.,
"[s 277.2] Section 277 and Water (Prevention and Control of Pollution) Act,",
1974.—,
The contention that the provisions contained in the Water Act take away the effect of,
section 277 cannot readily be assumed especially when there is nothing in the Water,
Act to hold that the provisions therein are intended to nullify section 277 from the Penal,
Code. The argument that the non-obstante clause in section 60 has the effect of,
"repealing section 277 of IPC, 1860, also is unsustainable. The non-obstante clause in",
section 60 cannot be assumed to supersede or extinguish such provisions in the,
General Law. If the non-obstante clause in section 60 was intended to exclude or nullify,
"section 277 of IPC, 1860, then there would have been strong indication available in the",
specific provision itself.28.,
"28. Prasad v State, 2012 (1) Ker LT 861 .",
THE INDIAN PENAL CODE,
"CHAPTER XIV OF OFFENCES AFFECTING THE PUBLIC HEALTH, SAFETY",
"CONVENIENCE, DECENCY AND MORALS",
The following specific instances of nuisance are dealt with in this Chapter:—,
1. Act likely to spread infection (sections 269–271).,
2. Adulteration of food or drink (sections 272–273).,
3. Adulteration of drugs (sections 274–276).,
4. Fouling water of a public spring or reservoir (section 277).,
5. Making atmosphere noxious to health (section 278).,
6. Rash driving or riding (section 279).,
7. Rash navigation (sections 280-282).,
"8. Exhibition of false light, mark or buoy (section 281).",
9. Danger or obstruction in a public way or line of navigation (section 283).,
"10. Negligence in respect of poison (section 284), fire (section 285) or explosive",
substances (section 286).,
"11. Negligence in respect of machinery (section 287), building (section 288) or",
animals (section 289).,
"12. Selling obscene literature and pictures (sections 292, 293) or doing obscene",
acts (section 294).,
13. Keeping a lottery office (section 294A).,
[s 278] Making atmosphere noxious to health.,
Whoever voluntarily vitiates the atmosphere in any place so as to make it noxious to,
the health of persons in general dwelling or carrying on business in the,
"neighbourhood or passing along a public way, shall be punished with fine which may",
extend to five hundred rupees.,
COMMENT.—,
"Though concepts of air and ecological pollution are rather new, it must be said to the",
"credit of the first Law Commission that they too, drafting the code as they did in the",
"first half of the nineteenth century, were not oblivious of these social needs.",
[s 278.1] Smoking in public places.—,
There can be no doubt that smoking in a public place will vitiate the atmosphere to,
"make it noxious to the health of persons who happened to be there. Therefore, smoking",
"in a public place is an offence punishable under section 278 IPC, 1860.29.",
"29. Ramakrishnan v State, AIR 1999 Ker 385 [LNIND 1999 KER 234] .",
THE INDIAN PENAL CODE,
"CHAPTER XIV OF OFFENCES AFFECTING THE PUBLIC HEALTH, SAFETY",
"CONVENIENCE, DECENCY AND MORALS",
The following specific instances of nuisance are dealt with in this Chapter:—,
1. Act likely to spread infection (sections 269–271).,
2. Adulteration of food or drink (sections 272–273).,
3. Adulteration of drugs (sections 274–276).,
4. Fouling water of a public spring or reservoir (section 277).,
5. Making atmosphere noxious to health (section 278).,
6. Rash driving or riding (section 279).,
7. Rash navigation (sections 280-282).,
"8. Exhibition of false light, mark or buoy (section 281).",
9. Danger or obstruction in a public way or line of navigation (section 283).,
"10. Negligence in respect of poison (section 284), fire (section 285) or explosive",
substances (section 286).,
"11. Negligence in respect of machinery (section 287), building (section 288) or",
animals (section 289).,
"12. Selling obscene literature and pictures (sections 292, 293) or doing obscene",
acts (section 294).,
13. Keeping a lottery office (section 294A).,
[s 279] Rash driving or riding on a public way.,
"Whoever drives any vehicle, or rides, on any public way in a manner so rash or",
"negligent 1 as to endanger human life, 2 or to be likely to cause hurt or injury to any",
"other person, shall be punished with imprisonment of either description for a term",
"which may extend to six months, or with fine which may extend to one thousand",
"rupees, or with both.",
COMMENT.—,
Under this section the effect of driving or riding must be either that human life was in,
fact endangered or that hurt or injury was likely to be caused.,
[s 279.1] Ingredients.—,
The section requires two things—,
1. Driving of a vehicle or riding on a public way.,
2. Such driving or riding must be so rash or negligent as to endanger human life or to,
be likely to cause hurt or injury to any other person.,
1. 'Rash or negligent'.—Rash and negligent driving has to be examined in light of the,
facts and circumstances of a given case. It is a fact incapable of being construed or,
"seen in isolation. The preliminary conditions, thus, are that",
(a) it is the manner in which the vehicle is driven;,
(b) it be driven either rashly or negligently; and,
(c) such rash or negligent driving should be such as to endanger human life.30. The,
criminality lies in running the risk of doing such an act with recklessness and,
"indifference to the consequences. The words ""rashly and negligently"" are",
"distinguishable and one is exclusive of the other. The same act cannot be ""rash"" as well",
"as ""negligent"".31. Where negligence is an essential ingredient of the offence, the",
negligence to be established by the prosecution must be culpable or gross and not the,
negligence merely based upon an error of judgment. Simple lack of care such as will,
"constitute civil liability, is not enough; for liability under the criminal law, a very high",
degree of negligence is required to be proved.32.,
There is a distinction between a rash act and a negligent act. A reckless act has to be,
"understood in two different senses—subjective and objective. In the subjective sense, it",
"means deliberate or conscious taking of an unjustified risk, which could be easily",
foreseen and in the circumstances of the case was unreasonable to take. In the,
"objective sense, the accused is not conscious of the result though he ought to be",
"aware that it might follow and in this sense, it is almost equivalent to negligence. In",
"other words, negligence involves blameworthy heedlessness on the part of the",
accused which a normal prudent man exercising reasonable care and caution ought to,
"avoid. Negligence is an omission to do something, which a reasonable man, guided",
"upon those considerations which ordinarily regulate the conduct of human affairs,",
"would do, or doing something which a prudent and reasonable man would not do. A",
culpable rashness is acting with the consciousness that the mischievous and illegal,
"consequences may follow, but with the hope that they will not, and often with the belief",
that the actor has taken sufficient precaution to prevent their happening. Culpable,
"negligence is acting without the consciousness, that the illegal and mischievous effect",
"will follow, but in circumstances which show that the actor has not exercised the",
caution incumbent upon him and if he had he would have had the consciousness. As,
"between rashness and negligence, rashness is a graver offence.33. Negligence is not",
an absolute term but is a relative one; it is rather a comparative term. It is difficult to,
"state with precision any mathematically exact formula by which negligence, or lack of",
"it, can be infallibly measured in a given case. Whether there exists negligence per se or",
the course of conduct amounts to negligence will normally depend upon the attending,
and surrounding facts and circumstances which have to be taken into consideration by,
"the Court. In a given case, even not doing what one was ought to do can constitute",
negligence.34. Absence of high speed itself cannot absolve the petitioner from the,
culpability.35.,
There are several offences in the Code in which the element of criminal rashness or,
"negligence occurs, viz.,—sections 279, 280, 283–289, 304A, 336, 337, 338.",
2. 'Endanger human life'.—It must be proved that the accused was driving the vehicle,
on a public way in a manner which endangered human life or was likely to cause hurt or,
injury to any other person.36. It is not necessary that the rash or negligent act should,
result in injury to life or property.37.,
[s 279.2] Reasonable care.—,
"The Court has to adopt another parameter, i.e., 'reasonable care' in determining the",
question of negligence or contributory negligence. The doctrine of reasonable care,
"imposes an obligation or a duty upon a person (for e.g., a driver) to care for the",
pedestrian on the road and this duty attains a higher degree when the pedestrian,
happen to be children of tender years. It is axiomatic to say that while driving a vehicle,
"on a public way, there is an implicit duty cast on the drivers to see that their driving",
"does not endanger the life of the right users of the road, may be either vehicular users",
or pedestrians. They are expected to take sufficient care to avoid danger to others.38.,
[s 279.3] Mens rea.—,
The essential ingredient of mens rea cannot be excluded from consideration when the,
charge in a criminal Court consists of criminal negligence.39.,
[s 279.4] Res ipsa Loquitur.—,
This doctrine serves two purposes–one that an accident may by its nature be more,
consistent with its being caused by negligence for which the opposite party is,
"responsible than by any other causes and that in such a case, the mere fact of the",
"accident is prima facie evidence of such negligence. Second, to avoid hardship in",
cases where the claimant is able to prove the accident but cannot prove how the,
accident occurred. The Courts have also applied the principle of res ipsa loquitur in,
cases where no direct evidence was brought on record. Elements of this doctrine may,
be stated as:,
(a) The event would not have occurred but for someone's negligence.,
(b) The evidence on record rules out the possibility that actions of the victim or some,
third party could be the reason behind the event.,
(c) Accused was negligent and owed a duty of care towards the victim.40. The principle,
of res ipsa loquitur is only a rule of evidence to determine the onus of proof in actions,
relating to negligence.41. This doctrine operates in the domain of civil law especially in,
the cases of torts and helps in determining the onus of proof in actions relating to,
negligence. It cannot be pressed 'in service for determining per se the liability for,
"negligence within the domain of criminal law. Res ipsa loquitur has, if at all, a limited",
application in trial on a charge of criminal negligence.42. Where a vehicle was being,
"driven on a wrong side, accident resulting in the death of two persons, the principle of",
res ipsa loquitur should have been applied.43. In the case of Thakur Singh v State of,
"Punjab,44. the accused drove a bus rashly and negligently with 41 passengers and while",
"crossing a bridge, the bus fell into the nearby canal resulting in death of all the",
passengers. The Court applied the doctrine of res ipsa loquitur since admittedly the,
petitioner was driving the bus at the relevant time and it was going over the bridge,
when it fell down.,
[s 279.5] Abetment.—,
The mere fact that petitioner was the owner of the offending vehicle at the relevant,
"time, ipso facto is not a cogent ground to array him as an accused under section 109",
"IPC, 1860. In this manner, no offence of abetment is made out against the petitioner.45.",
[s 279.6] Difference between civil and criminal liability.—,
There can be no civil action for negligence if the negligent act or omission has not been,
attended by an injury to any person; but bare negligence involving the risk of injury is,
"punishable criminally, though nobody is actually hurt by it.",
"If actual hurt is caused the case would come under sections 337 or 338, and if death is",
"caused, under section 304A.46.",
"In a case of collision or injury arising out of rash driving, the actual driver and not the",
"owner of the carriage is liable under this section;47. whereas, in a civil suit, the injured",
"party has an option to sue either or both of them. In a criminal case, every man is",
responsible for his own act; there must be some personal act.48.,
[s 279.7] Mechanical failure.—,
Poor maintenance of vehicle is itself a negligent act.49. In cases where the prosecution,
"alleges that the brakes were defective, it must establish by evidence that the brakes",
were so defective that the driving of the vehicle endangered human life or was likely to,
cause hurt or injury to any other person. Merely because the vehicle swerved to the,
"right when its brakes were pulled up, it could not be said that there was danger to",
human life or it was likely to cause hurt or injury to others.50. Failure to apply brakes at,
relevant time does not by itself constitute rash and negligent act for it may as well be,
due to error of judgment.51. A vehicle of which handbrake and speedometer were not in,
working order is a very serious hazard to the public as the driver would never know his,
speed. It is a danger to the traffic in general.52.,
[s 279.8] Contributory negligence.—,
The doctrine of contributory negligence does not apply to criminal actions.53. The,
deceased stood protruding his body out of the vehicle that too having his back towards,
"the driver, which fact suggests that he himself was quite negligent and responsible for",
the accident.54.,
[s 279.9] CASES.—,
"In a case the allegation was that the accused, car driver, drove car in a rash and",
negligent manner and caused injury to a child who was playing on side of road. But the,
evidence showed that vehicle was going in middle of road and child was also playing,
"on road. Brake skid marks on road were duly depicted in site plan, acquittal was held",
proper by the High Court.55. Where a tractor driver was driving the tractor at a speed of,
six miles per hour at night and a man who was sitting on it in a careless fashion,
"unmindful of bumps and jolts fell down and died, it was held that the driver was not",
"guilty of any rash or negligent act within the meaning of sections 279 and 304A, IPC,",
1860.56. Where a truck dashed against a cyclist and a cart resulting in injuries to both,
the cyclist and the cartman but there was no evidence to the actual dashing of the,
truck against the cyclist and the cart and no evidence was either available about the,
mechanical fitness or otherwise of the truck as the same had been set on fire by an,
"angry mob, it could not be presumed that the truck must have been driven rashly and",
"negligently merely because two persons were injured. In the circumstances, the",
"conviction of the accused under sections 279 and 304A, IPC, 1860 was set aside.57.",
"Merely because the driver ran away from the spot immediately after the incident, it",
could not be said that he must have been driving rashly and negligently.58. Driving at a,
high speed or non-sounding of horn by itself does not mean that the driver is rash or,
"negligent. Place, time, traffic and crowd are important factors to determine rashness or",
negligence.59. High speed at a crowded road and pressing a person against a wall in,
order to save accident was held to be negligence within the meaning of this section.60.,
To drive at a high speed on an empty road or at a lonely place is not the same thing as,
driving in a crowded city street.61. Crushing a school child while driving past a school,
was held to be ipso facto rashness. Everybody is expected to slow down and take extra,
precautions near the vicinity of an educational institution.62. The mere fact that there,
are more than two persons in a two-wheeled vehicle will not make out an offence under,
"section 279, IPC, 1860 as it by itself does not amount to so rash and negligent an act",
"as to endanger human life, section 279, IPC, 1860 is not attracted where the driving is",
"ordinarily rash or negligent. Moreover, if an offence is really made out, then driver alone",
"is responsible and not the pillion rider or riders. Therefore, the police practice of",
apprehending all occupants of the vehicle is deprecated.63.,
[s 279.10] Site plan.—,
"Where in a case of rash and negligent driving, the site plan, recovery memo, inspection",
report of the offending vehicle were not proved by the prosecution and the investigating,
"officer was also not examined, conviction of the accused was set aside.64. However,",
Supreme Court in a case held that the site plan only indicates the place where the,
accident happened and nothing more can be read into it.65.,
[s 279.11] Hitting from behind.—,
"Where the truck of the accused, driven rashly and negligently, hit a bullock-cart from",
"behind killing the buffalo and the cartman, the accused could not be convicted under",
"section 429 as the mens rea of causing loss was absent. However, his conviction under",
"sections 279 and 304-A was upheld.66. Where the accused, bus driver when attempted",
"to overtake a lorry, on seeing one other bus coming in opposite direction swerved the",
"bus towards the left and came in a violent contact with the victim, a cyclist, the Madras",
High Court held that the very act of the accused in driving the bus and dashing from,
behind the cyclist clearly constitutes the rashness and negligence on his part.67.,
[s 279.12] Section 279 is not a petty offence.—,
"'Petty offence' within the meaning of section 206 Cr PC, 1973 is an offence which is",
"punishable only with fine not exceeding Rs1,000 but does not include any offence so",
"punishable under the Motor Vehicles Act. If so, section 279 IPC, 1860 which is a",
cognizable offence and which is not an offence punishable only with fine is not a 'petty,
offences'.68.,
[s 279.13] Compounding.—,
"Though the Supreme Court held in Manish Jalan v State of Karnataka,69. that offences",
"punishable under section 279 and section 304A, IPC, 1860 are not compoundable, in",
"Puttuswamy v State of Karnataka,70. the Supreme Court while maintaining the",
"conviction under section 304A IPC, 1860 notwithstanding the agreement arrived at",
"between the parties, increased the amount of fine from Rs 2,000 to Rs 20,000 to be",
paid to the parents of the deceased and reduced the sentence to the period already,
"undergone, subject to payment of the fine.",
[s 279.14] Sentence.—,
One of the most effective ways of keeping drivers under mental vigil is to maintain a,
deterrent element in the sentencing sphere. Any latitude shown to them in that sphere,
would tempt them to make driving frivolous and a frolic.71. For lessening the high rate,
"of motor accidents due to careless and callous driving of vehicles, the Courts are",
expected to consider all the relevant facts and circumstances bearing on the question,
of sentence and proceed to impose a sentence commensurate with the gravity of the,
offence if the prosecution is able to establish the guilt beyond reasonable doubt.72.,
"Where the accused dashed the jeep against a tree, as a result of which one person, who",
"was travelling in the jeep got injured and died, and another person, who was also in the",
"same vehicle received injuries, the Supreme Court held that the High Court, without",
"proper appreciation of the evidence and consideration of the gravity of the offence,",
showed undue sympathy by reducing the sentence.73.,
"[s 279.15] Whether a Court can convict a person under sections 279 and 337,",
IPC for commission of the same act of offence and accordingly pass sentence,
under both the Sections.—,
"In this case, as the offence having been outcome of the same act, the Court should",
"punish the accused for one offence and at the same time, while passing the order of",
"sentence, the Court should also consider that when the sentence prescribed under",
"section 279, IPC, 1860 is a more severe offence than the offence prescribed under",
"section 337, IPC, 1860 the accused could be punished under section 279, IPC, 1860",
"only.74. However, in another case, Madras High Court held that simply because",
"accused are found guilty under section 304-A IPC, 1860 and sentence is imposed, there",
"is no embargo for Court to impose separate sentence under section 279 IPC, 1860.75.",
"30. Ravi Kapur v State of Rajasthan, AIR 2012 SC 2986 [LNIND 2012 SC 474] : (2012) 9 SCC 284",
[LNIND 2012 SC 474] : 2012 Cr LJ 4403 .,
"31. State of HP v Manohar Singh, 2011 Cr LJ 3402 (HP).",
"32. Kuldeep Singh v State, AIR 2008 SC 3062 [LNIND 2008 SC 1436] : (2008) 14 SCC 795 [LNIND",
"2008 SC 1436] relied on Syed Akbar v State of Kamataka, 1980 (1) SCC 30 [LNIND 1979 SC 297]",
.,
"33. Bhalchandra, (1967) 71 Bom LR 634 , SC approving Idu Beg v State, (1881) ILR 3 All 766 and",
"Nidamarti Nagabhushanam, (1872) 7 Mad HCR 119 .",
"34. Ravi Kapur v State of Rajasthan, AIR 2012 SC 2986 [LNIND 2012 SC 474] : (2012) 9 SCC 284",
[LNIND 2012 SC 474] : 2012 Cr LJ 4403 .,
"35. Mehnga Singh v State, 2012 Cr LJ 4930 (Del).",
"36. Braham Das v State of HP, (2009) 7 SCC 353 [LNIND 2009 SC 1130] : (2009) 3 SCC (Cr) 406 :",
(2009) 81 AIC 265 .,
"37. (1871) 6 Mad HCR (Appx) xxxii. State of Karnataka v Sadanand Parshuram, 2000 Cr LJ 2426",
(Kant).,
"38. Ravi Kapur v State of Rajasthan, AIR 2012 SC 2986 [LNIND 2012 SC 474] : (2012) 9 SCC 284",
[LNIND 2012 SC 474] : 2012 Cr LJ 4403 .,
"39. Dr. PB Desai v State of Maharashtra, 2013 (11) Scale 429 [LNIND 2013 SC 815] ; In Saroja",
"Dharmapal Patil v State of Maharashtra, 2011 Cr LJ 1060 (Bom), Bombay High Court held that",
section 304-A or section 279 of the IPC do not require any mens rea. But in view of the Supreme,
"Court Judgment, in Desai's case, it is not relevant.",
"40. Ravi Kapur v State of Rajasthan, AIR 2012 SC 2986 [LNIND 2012 SC 474] : (2012) 9 SCC 284",
"[LNIND 2012 SC 474] : 2012 Cr LJ 4403 ; Syad Akbar v State of Kamataka, 1980 SCC (Cr) 59 : (",
AIR 1979 SC 1848 [LNIND 1979 SC 297] ).,
"41. Mohd. Aynuddin alias Miyam v State of AP, 2000 (7) SCC 72 [LNIND 2000 SC 1014] : AIR",
2000 SC 2511 [LNIND 2000 SC 1014] : 2000 SCC (Cr) 1281 : 2000 Cr LJ 3508 .,
"42. Jacob Mathew v State of Punjab, AIR 2005 SCW 3685 : AIR 2005 SC 3180 [LNIND 2005 SC",
587] .,
"43. Francis Xavier Rodriguez v State of Maharashtra, 1997 Cr LJ 1374 (Bom); Dwarka Das v State",
"of Rajasthan, 1997 Cr LJ 4601 (Raj).",
"44. Thakur Singh v State of Punjab, 2003 (9) SCC 208 .",
"45. Ranjit Singh v State of Punjab, 2012 (4) Crimes 315 .",
46. No separate sentence would be necessary under this section if the act is punished under,
"section 304A. Nanne Khan v State of MP, 1987 Cr LJ 1403 (MP).",
"47. AW Larrymore v Pernendoo Deo Rai, (1870) 14 WR (Cr) 32.",
"48. Allen, (1835) 7 C & p 153.",
"49. Binoda Bihari Sharma v State of Orissa, 2011 Cr LJ 1989 (Ori).",
"50. Ajit Singh v State, 1975 Cr LJ 77 (HP).",
"51. Padmacharan Naik, 1982 Cr LJ NOC 192 (Ori).",
"52. Amar Lal v State of Rajasthan, 1988 Cr LJ 1 (Raj).",
"53. Kew, (1872) 12 Cox 355; Blenkinsop v Ogden, (1898) 1 QB 783 ; Fagu Moharana, AIR 1961 Ori",
71 [LNIND 1959 ORI 42] .,
"54. Bhupinder Sharma v State of HP, 2016 Cr LJ 3832 : IV (2016) ACC 461 (HP).",
"55. State of HP v Jawahar Lal Jindal, 2011 Cr LJ 3827 (HP). See also Aleem Pasha v State of",
"Karnataka, 2013 Cr LJ 174 (Kant); Ponnusamy v State, 2010 Cr LJ 2656 (Mad); State of HP v",
"Baljit Singh, 2012 Cr LJ 237 (HP).",
"56. Penu, 1980 Cr LJ NOC 132 (Ori).",
"57. Bijuli Swain, 1981 Cr LJ 583 (Ori).",
"58. Padmacharan Naik, supra.",
"59. P Rajappan, 1986 Cr LJ 511 (Ker).",
"60. State of HP v Man Singh, (1995) 1 Cr LJ 299 (HP). The court also found that the brakes of",
"the vehicle were in poor state of maintenance and, therefore, the principle of res ipsa loquitur",
"applied. The court followed Thomas v State of Kerala, ILR (1971) 1 Ker 318 ; Duli Chand v Delhi",
"Admn, 1975 Cr LJ 1732 : AIR 1975 SC 1960 [LNIND 1975 SC 258] and Usman Gani Mohd. v State",
"of Maharashtra, (1979) 3 SCC 362 : 1979 SCC Cr 675, which was a case where a girl was",
knocked down and the version of the driver was that he did not notice how the impact took,
"place and how the girl came under his lorry, it was, therefore, held that he was inattentive and",
this would establish negligence on his part.,
"61. Padmacharan, supra; Mahommed Saffique, 1983 Cr LJ 535 (Ori).",
"62. Praffulla Kumar Rout v State of Orissa, (1995) 2 Cr LJ 1277 (Ori).",
"63. Prabhudas, 1986 Cr LJ 390 (Guj). In State of Karnataka v Krishna, (1987) 1 SCC 538 [LNIND",
1987 SC 701] : 1987 Cr LJ 776 : AIR 1987 SC 861 [LNIND 1987 SC 701] the Supreme Court,
enhanced the punishment from two months' simple imprisonment being unconscionably low to,
"six months' R. I. for causing death by rash and negligent driving. NP Ganesan Re, 1989 Cr LJ",
"1160 (Mad). Bus hitting a pedestrian and dragging him for about 76 feet before stopping, the",
sentence of imprisonment was converted into fine in view of his 55 years of age having sole,
child (daughter) suffering from paralysis but no order about his disability for re-employment.,
"State of Karnataka v SB Marigowda, 1999 Cr LJ 2171 (Kant), the accused, driving a matador",
suddenly turning to right in order to overtake a vehicle and hitting a person to death who was,
"standing at that side, held guilty under the section Malleshi v State of Karnataka, 1999 Cr LJ",
"2617 (Kant), the accused car driver hit bullocks and two persons on road and then dashed",
"against a house 40 feet away from the road. Conviction proper. Ram Singh v State of Rajasthan,",
"1999 Cr LJ 2622 (Raj) death of a lady caused by rash and negligent driving, no leniency was",
shown to the accused because the whole family of the victim was upset. Bhagirath Singh v State,
"of Rajasthan, 1999 Cr LJ 4237 (Raj), a pedestrian suddenly attempted to cross the road and was",
hit by a vehicle. It could not be known whether the driver was able to spot him. Negligence on,
"the part of the driver not proved. State v Santanam, 1998 Cr LJ 3045 (Kant), accused, a military",
"personnel, under influence of alcohol, drove his military truck in a zig zag manner, made three",
"accidents in one sequence. A moped driver, who was hit, died but it was not known whether",
"death was due to fatal injury. Others were only injured. Held, liable under section 279, but not",
"under section 337 or section 304A, IPC, 1860 nor under section 117 of MV Act. Bharat Amratlal",
"Kothari v Dosukhan Samadkhan Sindhi, (2010) 1 SCC 234 [LNIND 2009 SC 1949] : 2010 Cr LJ",
"379 , FIR under section 279 for an order to prevent filling of animals in trucks in a cruel manner",
and carrying them for slaughter contrary to statutory requirements.,
"64. Thana Ram v State of Haryana, 1996 Cr LJ 2020 (P&H), relying on Nageshwar Sh Krishna",
"Ghobe v State of Maharashtra, AIR 1973 SC 165 [LNIND 1972 SC 450] : 1973 Cr LJ 235 .",
"65. Shivanna v State, (2010) 15 SCC 9 : 2010 (9) Scale 87 [LNIND 2010 SC 775] .",
"66. Pawan Kumar Sharma v State of UP, 1996 Cr LJ 369 (All).",
"67. K K Mani v State, 2010 Cr LJ 4595 (Mad).",
"68. Ramesan v State, 2010 Cr LJ 4423 .",
"69. Manish Jalan v State of Karnataka, AIR 2008 SC 3074 [LNIND 2008 SC 1396] : (2008) 8 SCC",
225 [LNIND 2008 SC 1396] .,
"70. Puttuswamy v State of Karnataka, (2009) 1 SCC 711 [LNIND 2008 SC 2398] : 2008 (15) Scale",
483 [LNIND 2008 SC 2398] .,
"71. Dalbir Singh v State of Harayana, 2000 (5) SCC 82 [LNIND 2000 SC 810] : AIR 2000 SC 1677",
"[LNIND 2000 SC 810] : 2000 Cr LJ 2283 ; B Nagabhushanam v State of Karnataka, 2008 (5) SCC",
730 [LNIND 2008 SC 1172] : 2008 (7) Scale 716 [LNIND 2008 SC 1172] : AIR 2008 SC 2557,
[LNIND 2008 SC 1172] .,
"72. State of Punjab v Balwinder Singh, 2012 (2) SCC 182 [LNIND 2012 SC 8] : 2012 (1) Scale 62",
[LNIND 2012 SC 8] : AIR 2012 SC 861 [LNIND 2012 SC 8] .,
"73. State of MP v Surendra Singh, 2015 Cr LJ 600 : AIR 2015 SC 398 [LNIND 2014 SC 933] .",
"74. Hiran Mia v State of Tripura, 2010 Cr LJ 189 (Gau) section 279 is punishable with",
"imprisonment of either description of a term which may extend to six months, or with fine which",
"may extend to Rs 1,000, or with both, while section 337 is punishable with imprisonment of",
"either description for a term which may extend to six months, or with fine which may extend to",
"Rs 500, or with both.",
"75. Rajaram v State, 2010 Cr LJ 1644 (Mad).",
THE INDIAN PENAL CODE,
"CHAPTER XIV OF OFFENCES AFFECTING THE PUBLIC HEALTH, SAFETY",
"CONVENIENCE, DECENCY AND MORALS",
The following specific instances of nuisance are dealt with in this Chapter:—,
1. Act likely to spread infection (sections 269–271).,
2. Adulteration of food or drink (sections 272–273).,
3. Adulteration of drugs (sections 274–276).,
4. Fouling water of a public spring or reservoir (section 277).,
5. Making atmosphere noxious to health (section 278).,
6. Rash driving or riding (section 279).,
7. Rash navigation (sections 280-282).,
"8. Exhibition of false light, mark or buoy (section 281).",
9. Danger or obstruction in a public way or line of navigation (section 283).,
"10. Negligence in respect of poison (section 284), fire (section 285) or explosive",
substances (section 286).,
"11. Negligence in respect of machinery (section 287), building (section 288) or",
animals (section 289).,
"12. Selling obscene literature and pictures (sections 292, 293) or doing obscene",
acts (section 294).,
13. Keeping a lottery office (section 294A).,
[s 280] Rash navigation of vessel.,
Whoever navigates any vessel in a manner so rash or negligent as to endanger human,
"life, or to be likely to cause hurt or injury to any other person, shall be punished with",
"imprisonment of either description for a term which may extend to six months, or with",
"fine which may extend to one thousand rupees, or with both.",
COMMENT.—,
The last section deals with public ways on land: this section deals with waterways. It,
deals with the case of inland navigation. Rash or negligent navigation on the high seas,
is not punished under the Code but under certain special statutes.,
[s 280.1] CASES.—,
"Petitioners, 33 in number were the distressed and marooned seamen belonging to",
"different nationalities who were the crew of ""ISABELL-III"", wrecked at the reefs of the",
"sea near the Islet of Suheli Par, part of the Lakshadweep group of Islands. The accident",
happened when the vessel was passing through the Indian territorial waters by way of,
innocent passage; and immediately the matter was informed to the Indian Coast,
"Guard. The Merchant Shipping (Distressed Seamen) Rules, 1960 prescribes that the",
derelict seamen should be saved at any cost and repatriated to their return port at the,
cost of the owner of the vessel. The petitioners were forced to enter the Lakshadweep,
"Island and hence they were held protected under the Merchant Shipping Act, 1958 the",
"Merchant Shipping (Distressed Seamen) Rules, 1960 and the U.N. Conventions On the",
"Law Of the Sea (UNCLOS). It was held that at best the offence under section 280 IPC,",
"1860, i.e., rash navigation of the vessel, would lie only against the first accused, who",
was the Master of the vessel. Proceedings against the crew was quashed.76.,
"76. Hisa A Sheng v Administrator, Union Territory of Lakshadweep, 2007 Cr LJ 821 .",
THE INDIAN PENAL CODE,
"CHAPTER XIV OF OFFENCES AFFECTING THE PUBLIC HEALTH, SAFETY",
"CONVENIENCE, DECENCY AND MORALS",
The following specific instances of nuisance are dealt with in this Chapter:—,
1. Act likely to spread infection (sections 269–271).,
2. Adulteration of food or drink (sections 272–273).,
3. Adulteration of drugs (sections 274–276).,
4. Fouling water of a public spring or reservoir (section 277).,
5. Making atmosphere noxious to health (section 278).,
6. Rash driving or riding (section 279).,
7. Rash navigation (sections 280-282).,
"8. Exhibition of false light, mark or buoy (section 281).",
9. Danger or obstruction in a public way or line of navigation (section 283).,
"10. Negligence in respect of poison (section 284), fire (section 285) or explosive",
substances (section 286).,
"11. Negligence in respect of machinery (section 287), building (section 288) or",
animals (section 289).,
"12. Selling obscene literature and pictures (sections 292, 293) or doing obscene",
acts (section 294).,
13. Keeping a lottery office (section 294A).,
"[s 281] Exhibition of false light, mark or buoy.",
"Whoever exhibits any false light, mark or buoy, intending or knowing it to be likely that",
"such exhibition will mislead any navigator, shall be punished with imprisonment of",
"either description for a term which may extend to seven years, or with fine, or with",
both.,
COMMENT.—,
"Intentional exhibition of a false light, mark or buoy, with a view to mislead any navigator",
is punishable under this section.,
THE INDIAN PENAL CODE,
"CHAPTER XIV OF OFFENCES AFFECTING THE PUBLIC HEALTH, SAFETY",
"CONVENIENCE, DECENCY AND MORALS",
The following specific instances of nuisance are dealt with in this Chapter:—,
1. Act likely to spread infection (sections 269–271).,
2. Adulteration of food or drink (sections 272–273).,
3. Adulteration of drugs (sections 274–276).,
4. Fouling water of a public spring or reservoir (section 277).,
5. Making atmosphere noxious to health (section 278).,
6. Rash driving or riding (section 279).,
7. Rash navigation (sections 280-282).,
"8. Exhibition of false light, mark or buoy (section 281).",
9. Danger or obstruction in a public way or line of navigation (section 283).,
"10. Negligence in respect of poison (section 284), fire (section 285) or explosive",
substances (section 286).,
"11. Negligence in respect of machinery (section 287), building (section 288) or",
animals (section 289).,
"12. Selling obscene literature and pictures (sections 292, 293) or doing obscene",
acts (section 294).,
13. Keeping a lottery office (section 294A).,
[s 282] Conveying person by water for hire in unsafe or overloaded vessel.,
"Whoever knowingly or negligently conveys, or causes to be conveyed for hire, any",
"person by water in any vessel, when that vessel is in such a state or so loaded as to",
"endanger the life of that person, shall be punished with imprisonment of either",
"description for a term which may extend to six months, or with fine which may extend",
"to one thousand rupees, or with both.",
COMMENT.—,
This section provides against the negligence of common carriers by water. Where a,
"person, with the assistance of two others, plied a ferryboat, which was out of order and",
"had a crack, and he took in one hundred passengers, and consequently the boat was",
"upset, and seven persons were drowned, it was held that the accused had committed",
an offence under this section.77. Where the lessee of a public ferry knew that boats,
were usually overloaded but took no steps against it and allowed his boatmen to,
"overload them as they liked and in consequence, a boat sank with some passengers, it",
was held that the lessee was guilty of criminal negligence and liable under this,
"section.78. Where a launch, which was overloaded with passengers, capsized at the",
jetty owing to the onrush of persons waiting at the jetty to get on deck and the,
"passengers on the launch wanting to get down at the jetty, resulting in displacement of",
"balance of the launch, it was held that the capsizing of the launch was not because of",
"any negligence of the owners or the master and, therefore, their conviction under this",
section could not be sustained.79. The owner who knowingly or negligently allows,
overloading of his boat so as to endanger the life of the persons therein will be liable,
"under section 282, Penal Code.80.",
There is no provision in the Code for the negligence of a common carrier by land.,
"77. Khoda Jagta, (1864) 1 BHC (Cr C) 137.",
"78. Tofel Ahmad Miya, (1933) 61 Cal 253 .",
"79. VR Bhate, AIR 1970 SC 1362 : 1970 Cr LJ 1261 .",
"80. Re K S M Mohammad Abdul Kadar Marakayar, 1950 Cr LJ 729 (Mad).",
THE INDIAN PENAL CODE,
"CHAPTER XIV OF OFFENCES AFFECTING THE PUBLIC HEALTH, SAFETY",
"CONVENIENCE, DECENCY AND MORALS",
The following specific instances of nuisance are dealt with in this Chapter:—,
1. Act likely to spread infection (sections 269–271).,
2. Adulteration of food or drink (sections 272–273).,
3. Adulteration of drugs (sections 274–276).,
4. Fouling water of a public spring or reservoir (section 277).,
5. Making atmosphere noxious to health (section 278).,
6. Rash driving or riding (section 279).,
7. Rash navigation (sections 280-282).,
"8. Exhibition of false light, mark or buoy (section 281).",
9. Danger or obstruction in a public way or line of navigation (section 283).,
"10. Negligence in respect of poison (section 284), fire (section 285) or explosive",
substances (section 286).,
"11. Negligence in respect of machinery (section 287), building (section 288) or",
animals (section 289).,
"12. Selling obscene literature and pictures (sections 292, 293) or doing obscene",
acts (section 294).,
13. Keeping a lottery office (section 294A).,
[s 283] Danger or obstruction in public way or line of navigation.,
"Whoever, by doing any act, or by omitting to take order with any property in his",
"possession or under his charge, causes danger, obstruction or injury to any person in",
"any public way 1 or public line of navigation, shall be punished with fine which may",
extend to two hundred rupees.,
COMMENT.—,
"The offence punishable under this section is the nuisance of causing obstruction, in a",
public way or navigable river or canal:,
[s 283.1] Ingredients.—,
The section requires two things—,
1. A person must do an act or omit to take order with any property in his possession or,
under his charge.,
"2. Such act or omission must cause danger, obstruction or injury to any person in any",
public way or line of navigation.,
It is not necessary to prove that any specific individual was actually obstructed.81.,
1. 'Public way'.—Where the privilege of a right of way is enjoyed only by a particular,
section of the community or by the inhabitants of two or three villages and not by,
"others, the way is not a public way within the meaning of this section.82. The section",
cannot be extended to a case where a party prohibits strangers from passing through,
"its fields, even though they may have been allowed access on earlier occasion.83.",
[s 283.2] CASES.—,
A tractor trolley duly loaded with fertilizers was negligently parked in the middle of the,
road by its driver without there being any signal of its being stationary and as such,
three persons who were proceeding on a motor-cycle collided with the stationary trolley,
and sustained severe injuries. The Rajasthan High Court declined to quash the,
proceedings.84.,
"81. Venkappa v State, (1913) 38 Mad 305.",
"82. Prannath Kundu, (1929) 57 Cal 526 .",
"83. Nand Ram v State, (1969) Cr LJ 77 .",
"84. Jai Ram v State of Rajasthan, 2001 Cr LJ 3915 (Raj).",
THE INDIAN PENAL CODE,
"CHAPTER XIV OF OFFENCES AFFECTING THE PUBLIC HEALTH, SAFETY",
"CONVENIENCE, DECENCY AND MORALS",
The following specific instances of nuisance are dealt with in this Chapter:—,
1. Act likely to spread infection (sections 269–271).,
2. Adulteration of food or drink (sections 272–273).,
3. Adulteration of drugs (sections 274–276).,
4. Fouling water of a public spring or reservoir (section 277).,
5. Making atmosphere noxious to health (section 278).,
6. Rash driving or riding (section 279).,
7. Rash navigation (sections 280-282).,
"8. Exhibition of false light, mark or buoy (section 281).",
9. Danger or obstruction in a public way or line of navigation (section 283).,
"10. Negligence in respect of poison (section 284), fire (section 285) or explosive",
substances (section 286).,
"11. Negligence in respect of machinery (section 287), building (section 288) or",
animals (section 289).,
"12. Selling obscene literature and pictures (sections 292, 293) or doing obscene",
acts (section 294).,
13. Keeping a lottery office (section 294A).,
[s 284] Negligent conduct with respect to poisonous substance.,
"Whoever does, with any poisonous substance, any act in a manner so rash or",
"negligent as to endanger human life, or to be likely to cause hurt or injury to any",
"person,",
or knowingly or negligently omits to take such order with any poisonous substance in,
his possession as is sufficient to guard against any probable danger to human life,
"from such poisonous substance,",
shall be punished with imprisonment of either description for a term which may,
"extend to six months, or with fine which may extend to one thousand rupees, or with",
both.,
COMMENT.—,
"Under the second part of this section, a person in possession of a poisonous",
substance should have negligently omitted to take such order with it as is sufficient to,
guard against any probable danger to human life from such substance. It is not,
necessary that the negligent omission should be followed by any disastrous,
consequences.85.,
"85. Hosein Beg, (1882) PR No. 16 of 1882.",
THE INDIAN PENAL CODE,
"CHAPTER XIV OF OFFENCES AFFECTING THE PUBLIC HEALTH, SAFETY",
"CONVENIENCE, DECENCY AND MORALS",
The following specific instances of nuisance are dealt with in this Chapter:—,
1. Act likely to spread infection (sections 269–271).,
2. Adulteration of food or drink (sections 272–273).,
3. Adulteration of drugs (sections 274–276).,
4. Fouling water of a public spring or reservoir (section 277).,
5. Making atmosphere noxious to health (section 278).,
6. Rash driving or riding (section 279).,
7. Rash navigation (sections 280-282).,
"8. Exhibition of false light, mark or buoy (section 281).",
9. Danger or obstruction in a public way or line of navigation (section 283).,
"10. Negligence in respect of poison (section 284), fire (section 285) or explosive",
substances (section 286).,
"11. Negligence in respect of machinery (section 287), building (section 288) or",
animals (section 289).,
"12. Selling obscene literature and pictures (sections 292, 293) or doing obscene",
acts (section 294).,
13. Keeping a lottery office (section 294A).,
[s 285] Negligent conduct with respect to fire or combustible matter.,
"Whoever does, with fire or any combustible matter, any act so rashly or negligently as",
"to endanger human life, or to be likely to cause hurt or injury to any other person,",
or knowingly or negligently omits to take such order with any fire or any combustible,
matter in his possession as is sufficient to guard against any probable danger to,
"human life from such fire or combustible matter,",
shall be punished with imprisonment of either description for a term which may,
"extend to six months, or with fine which may extend to one thousand rupees, or with",
both.,
COMMENT.—,
This section extends the provisions of the preceding section to fire or any other,
combustible matter.,
[s 285.1] Cases.—,
A factory worker allegedly died due to rash and negligent act of occupier or manager. It,
"was argued that section 92 of Factories Act, 1948 prescribes punishment to occupier",
or manager of factory for contravention of any of the provisions of Factories Act or any,
rules made thereunder. It was held that there is nothing in Factories Act (Special Law),
which prescribes punishment for rash and negligent act of occupier or manager of,
"factory which resulted into the death of any worker or any other person. Hence,",
"offences under IPC, 1860 including section 285 will apply.86. Where a factory manager,",
in breach of conditions in the licence kept naked fire in proximity of stores of turpentine,
"and vanish and the fire caused death of seven workers, the court found that he is guilty",
"under sections 285 and 304A IPC, 1860.87. The acts of accused in setting fire to the",
Tobacco Stock inside the house after pouring petrol and further act of throwing petrol,
"on the deceased when he tried to pacify, cannot be held as either rash or negligent act",
"so as to attract the offence under section 285 of IPC, 1860.88.",
"86. Ejaj Ahmad v State of Jharkhand, 2010 Cr LJ 1953 (Jha).",
"87. Kurban Hussein Mohamedalli Bangawalla v State of Maharashtra, AIR 1965 SC 1616 [LNIND",
1964 SC 355] : 1965 (2) SCR 622 [LNIND 1964 SC 355] .,
"88. Madhusudan v State of Karnataka, 2011 Cr LJ 215 (Kant).",
THE INDIAN PENAL CODE,
"CHAPTER XIV OF OFFENCES AFFECTING THE PUBLIC HEALTH, SAFETY",
"CONVENIENCE, DECENCY AND MORALS",
The following specific instances of nuisance are dealt with in this Chapter:—,
1. Act likely to spread infection (sections 269–271).,
2. Adulteration of food or drink (sections 272–273).,
3. Adulteration of drugs (sections 274–276).,
4. Fouling water of a public spring or reservoir (section 277).,
5. Making atmosphere noxious to health (section 278).,
6. Rash driving or riding (section 279).,
7. Rash navigation (sections 280-282).,
"8. Exhibition of false light, mark or buoy (section 281).",
9. Danger or obstruction in a public way or line of navigation (section 283).,
"10. Negligence in respect of poison (section 284), fire (section 285) or explosive",
substances (section 286).,
"11. Negligence in respect of machinery (section 287), building (section 288) or",
animals (section 289).,
"12. Selling obscene literature and pictures (sections 292, 293) or doing obscene",
acts (section 294).,
13. Keeping a lottery office (section 294A).,
[s 286] Negligent conduct with respect to explosive substance.,
"Whoever does, with any explosive substance, any act so rashly or negligently as to",
"endanger human life, or to be likely to cause hurt or injury to any other person,",
or knowingly or negligently omits to take such order with any explosive substance in,
his possession as is sufficient to guard against any probable danger to human life,
"from that substance,",
shall be punished with imprisonment of either description for a term which may,
"extend to six months, or with fine which may extend to one thousand rupees, or with",
both.,
COMMENT.—,
"The foregoing section deals with 'fire or combustible matter', this with 'explosive",
"substance'; otherwise, the provisions of both the sections are alike.",
The word 'knowingly' is evidently used in this section advisedly.,
[s 286.1] Limitation.—,
"In a case, the occurrence took place as far back as in the year 1995 and the challan",
was presented in the year 2006. The prosecution was launched against the petitioners,
beyond the period of limitation as prescribed under the statute. Proceedings under,
"sections 286 and 9-B and 9-C of the Explosive Substances Act, 1908, were quashed.89.",
"89. T Amudha Sidhanathan v Union Territory, Chandigarh, 2008 Cr LJ 937 (P&H).",
THE INDIAN PENAL CODE,
"CHAPTER XIV OF OFFENCES AFFECTING THE PUBLIC HEALTH, SAFETY",
"CONVENIENCE, DECENCY AND MORALS",
The following specific instances of nuisance are dealt with in this Chapter:—,
1. Act likely to spread infection (sections 269–271).,
2. Adulteration of food or drink (sections 272–273).,
3. Adulteration of drugs (sections 274–276).,
4. Fouling water of a public spring or reservoir (section 277).,
5. Making atmosphere noxious to health (section 278).,
6. Rash driving or riding (section 279).,
7. Rash navigation (sections 280-282).,
"8. Exhibition of false light, mark or buoy (section 281).",
9. Danger or obstruction in a public way or line of navigation (section 283).,
"10. Negligence in respect of poison (section 284), fire (section 285) or explosive",
substances (section 286).,
"11. Negligence in respect of machinery (section 287), building (section 288) or",
animals (section 289).,
"12. Selling obscene literature and pictures (sections 292, 293) or doing obscene",
acts (section 294).,
13. Keeping a lottery office (section 294A).,
[s 287] Negligent conduct with respect to machinery.,
"Whoever does, with any machinery, any act so rashly or negligently as to endanger",
"human life or to be likely to cause hurt or injury to any other person,",
or knowingly or negligently omits to take such order with any machinery in his,
possession or under his care as is sufficient to guard against any probable danger to,
"human life from such machinery,",
shall be punished with imprisonment of either description for a term which may,
"extend to six months, or with fine which may extend to one thousand rupees, or with",
both.,
COMMENT.—,
Machinery is dangerous to human life if proper precaution is not taken in its working.,
This section renders any rash or negligent conduct in respect of machinery punishable.,
"Section 284 deals with poison; section 285, with fire or combustible matter, section",
"286, with explosive substance; and this section, with machinery.",
Death of the victim occurred when his hand got crushed in conveyor belt while,
repairing it. There is no evidence to prove that the accused knowingly or negligently,
failed to take precautions against probable danger. It is held that no offence under,
section 287 or section 304A is made out.90.,
"90. Raj Kumar Bansal v State of Jharkhand, 2012 Cr LJ (NOC) 554 (Jha).",
THE INDIAN PENAL CODE,
"CHAPTER XIV OF OFFENCES AFFECTING THE PUBLIC HEALTH, SAFETY",
"CONVENIENCE, DECENCY AND MORALS",
The following specific instances of nuisance are dealt with in this Chapter:—,
1. Act likely to spread infection (sections 269–271).,
2. Adulteration of food or drink (sections 272–273).,
3. Adulteration of drugs (sections 274–276).,
4. Fouling water of a public spring or reservoir (section 277).,
5. Making atmosphere noxious to health (section 278).,
6. Rash driving or riding (section 279).,
7. Rash navigation (sections 280-282).,
"8. Exhibition of false light, mark or buoy (section 281).",
9. Danger or obstruction in a public way or line of navigation (section 283).,
"10. Negligence in respect of poison (section 284), fire (section 285) or explosive",
substances (section 286).,
"11. Negligence in respect of machinery (section 287), building (section 288) or",
animals (section 289).,
"12. Selling obscene literature and pictures (sections 292, 293) or doing obscene",
acts (section 294).,
13. Keeping a lottery office (section 294A).,
[s 288] Negligent conduct with respect to pulling down or repairing buildings.,
"Whoever, in pulling down or repairing any building, knowingly or negligently omits to",
take such order with that building as is sufficient to guard against any probable,
"danger to human life from the fall of that building, or of any part thereof, shall be",
punished with imprisonment of either description for a term which may extend to six,
"months, or with fine which may extend to one thousand rupees, or with both.",
COMMENT.—,
This section deals with negligent conduct with respect to pulling down or repairing,
buildings. The injury complained of must be the direct consequence of such negligent,
"conduct.91. section 288, IPC, 1860, concerns itself with a situation where a person, in",
"pulling down or repairing and building, knowingly or negligently omits to take such",
order with that building as is sufficient to guard against any probable danger to human,
"life from the fall of that building, or any part thereof.92.",
"91. Manohar Shriniwas v Avtarsingh, (1969) 72 Bom LR 629 .",
"92. Abdul Kalam v State, 2006 Cr LJ 3071 (Del).",
THE INDIAN PENAL CODE,
"CHAPTER XIV OF OFFENCES AFFECTING THE PUBLIC HEALTH, SAFETY",
"CONVENIENCE, DECENCY AND MORALS",
The following specific instances of nuisance are dealt with in this Chapter:—,
1. Act likely to spread infection (sections 269–271).,
2. Adulteration of food or drink (sections 272–273).,
3. Adulteration of drugs (sections 274–276).,
4. Fouling water of a public spring or reservoir (section 277).,
5. Making atmosphere noxious to health (section 278).,
6. Rash driving or riding (section 279).,
7. Rash navigation (sections 280-282).,
"8. Exhibition of false light, mark or buoy (section 281).",
9. Danger or obstruction in a public way or line of navigation (section 283).,
"10. Negligence in respect of poison (section 284), fire (section 285) or explosive",
substances (section 286).,
"11. Negligence in respect of machinery (section 287), building (section 288) or",
animals (section 289).,
"12. Selling obscene literature and pictures (sections 292, 293) or doing obscene",
acts (section 294).,
13. Keeping a lottery office (section 294A).,
[s 289] Negligent conduct with respect to animal.,
Whoever knowingly or negligently omits to take such order with any animal in his,
"possession 1 as is sufficient to guard against any probable danger to human life, or",
"any probable danger of grievous hurt from such animal, 2 shall be punished with",
"imprisonment of either description for a term which may extend to six months, or with",
"fine which may extend to one thousand rupees, or with both.",
COMMENT.—,
This section deals with improper or careless management of animals. It does not refer,
"to savage animals alone, but to any 'animal', wild or domestic, e.g., a pony.93.",
"In the case of wild and savage animals, a savage or mischievous temper is presumed",
to be known to their owner and to all men as a usual accompaniment of such animals;,
and hence a positive duty is cast on the owner to protect the public against the,
mischief resulting from such animals being at large. Anyone who keeps such a wild,
"animal as a tiger or bear, which escapes and does damage, is liable without any proof",
of notice of the animal's ferocity; in such a case it may be said 'res ipsa loquitur'.,
"In the case of animals, which are tame and mild in their general temper, no mischievous",
disposition is presumed. It must be shown that the defendant knew that the animal,
was accustomed to do mischief. Some evidence must be given of the existence of an,
"abnormally vicious disposition. A single instance of ferocity, even a knowledge that it",
"has evinced a savage disposition, is held to be sufficient notice.94.",
1. 'Animal in his possession'. Where the owner knowing that his buffalo was of a,
"savage and vicious disposition vis-a-vis human beings, negligently omitted to take such",
order with the animal as was sufficient to guard against probable danger to human life,
"or any probable danger of grievous hurt, and the animal attacked the complainant in a",
"jungle and wounded him with her horn, it was held that he was guilty of an offence",
under this section.95.,
"2. 'As is sufficient to guard against any probable danger to human life, or any probable",
"danger of grievous hurt from such animal'.—Where a pony, which was tied negligently,",
"got loose and ran through a crowded bazar, it was held that the conviction under this",
"section was good, because the pony on such an occasion might create danger to the",
"lives or limbs of men, women and children walking in the bazar.96. The accused, a",
"horse-keeper, harnessed his master's horse, put him into his carriage, and then went",
"away, leaving the horse and carriage standing in the road of the compound of his",
master's house without any justification; it was held that the accused had committed,
"an offence under this section, since the horse was not the less in the actual possession",
"of the servant, because it was for some purpose in the constructive possession of his",
master.97.,
"93. Chand Manal, (1872) 19 WR (Cr) 1.",
"94. See the authors' LAW OF TORTS, 19th Edn, chapter XX.",
"95. Moti, (1954) Nag 585.",
"96. Chand Manal, (1872) 19 WR (Cr) 1.",
"97. Natha Reva, (1881) Unrep Cr C 163.",
THE INDIAN PENAL CODE,
"CHAPTER XIV OF OFFENCES AFFECTING THE PUBLIC HEALTH, SAFETY",
"CONVENIENCE, DECENCY AND MORALS",
The following specific instances of nuisance are dealt with in this Chapter:—,
1. Act likely to spread infection (sections 269–271).,
2. Adulteration of food or drink (sections 272–273).,
3. Adulteration of drugs (sections 274–276).,
4. Fouling water of a public spring or reservoir (section 277).,
5. Making atmosphere noxious to health (section 278).,
6. Rash driving or riding (section 279).,
7. Rash navigation (sections 280-282).,
"8. Exhibition of false light, mark or buoy (section 281).",
9. Danger or obstruction in a public way or line of navigation (section 283).,
"10. Negligence in respect of poison (section 284), fire (section 285) or explosive",
substances (section 286).,
"11. Negligence in respect of machinery (section 287), building (section 288) or",
animals (section 289).,
"12. Selling obscene literature and pictures (sections 292, 293) or doing obscene",
acts (section 294).,
13. Keeping a lottery office (section 294A).,
[s 290] Punishment for public nuisance in cases not otherwise provided for.,
Whoever commits a public nuisance in any case not otherwise punishable by this,
"Code, shall be punished with fine which may extend to two hundred rupees.",
COMMENT.—,
This section provides for the punishment of a nuisance falling within the four corners,
of the definition given in section 268 but not punishable under any other section.,
[s 290.1] CASES.—,
The display of unauthorized hoardings / banners / posters not only result in,
"defacement of public property and any place open to public view, but is an eyesore to",
"the viewers thereby causing public nuisance. In a given case, it may also result in",
obstructing the free flow of traffic on the public roads. The same would not only be,
"unlawful but unjust and unreasonable, irrespective of whether it has the effect of",
advertisement or otherwise. Suffice it to observe that the Authorities have a bounden,
duty to prevent and regulate display of illegal hoardings / banners / posters in the,
interests of amity and public safety.98. Though corporate bodies act through their,
"agents, there is no reason to exempt such bodies when their agents or servants, while",
"purporting to act on their behalf commit an offence like public nuisance, which is",
punishable with fine only. So a Municipality could be convicted for not maintaining the,
"cleanliness of the town under section 290, IPC, 1860.99. But in deciding cases of",
nuisance the rigid standards of urban society cannot be applied to Indian villages.100.,
Where a Coal Depot had been in existence for seven or eight years and only two,
"neighbours complained against its continuance at that site, it could not be said that it",
"constituted a public nuisance. At best, it was a private nuisance.101. Playing the radio",
loud at a particular time did not constitute public nuisance and it was too trivial a,
matter for the Court to take notice of it.102.,
"98. SP Jadhav v State of Maharashtra, AIR 2010 (4) Bom section 548.",
"99. Kurnool Municipality, 1973 Cr LJ 1227 (AP).",
"100. Chakra Behera, 1974 Cr LJ 423 (Ori).",
"101. Berhampore Municipality v Oruganti Kondaya, 1977 Cr LJ NOC 279 (Ori).",
"102. Ivor Heyden v State, 1984 Cr LJ NOC 16 (AP).",
THE INDIAN PENAL CODE,
"CHAPTER XIV OF OFFENCES AFFECTING THE PUBLIC HEALTH, SAFETY",
"CONVENIENCE, DECENCY AND MORALS",
The following specific instances of nuisance are dealt with in this Chapter:—,
1. Act likely to spread infection (sections 269–271).,
2. Adulteration of food or drink (sections 272–273).,
3. Adulteration of drugs (sections 274–276).,
4. Fouling water of a public spring or reservoir (section 277).,
5. Making atmosphere noxious to health (section 278).,
6. Rash driving or riding (section 279).,
7. Rash navigation (sections 280-282).,
"8. Exhibition of false light, mark or buoy (section 281).",
9. Danger or obstruction in a public way or line of navigation (section 283).,
"10. Negligence in respect of poison (section 284), fire (section 285) or explosive",
substances (section 286).,
"11. Negligence in respect of machinery (section 287), building (section 288) or",
animals (section 289).,
"12. Selling obscene literature and pictures (sections 292, 293) or doing obscene",
acts (section 294).,
13. Keeping a lottery office (section 294A).,
[s 291] Continuance of nuisance after injunction to discontinue.,
"Whoever repeats or continues a public nuisance, having been enjoined by any public",
servant who has lawful authority to issue such injunction not to repeat or continue,
"such nuisance, shall be punished with simple imprisonment for a term which may",
"extend to six months, or with fine, or with both.",
COMMENT.—,
This section punishes a person repeating or continuing a nuisance after he is enjoined,
"by a public servant not to repeat or continue it. Sections 142 and 143 of the Cr PC,",
1973 empower a Magistrate to forbid an act causing public nuisance.,
THE INDIAN PENAL CODE,
"CHAPTER XIV OF OFFENCES AFFECTING THE PUBLIC HEALTH, SAFETY",
"CONVENIENCE, DECENCY AND MORALS",
The following specific instances of nuisance are dealt with in this Chapter:—,
1. Act likely to spread infection (sections 269–271).,
2. Adulteration of food or drink (sections 272–273).,
3. Adulteration of drugs (sections 274–276).,
4. Fouling water of a public spring or reservoir (section 277).,
5. Making atmosphere noxious to health (section 278).,
6. Rash driving or riding (section 279).,
7. Rash navigation (sections 280-282).,
"8. Exhibition of false light, mark or buoy (section 281).",
9. Danger or obstruction in a public way or line of navigation (section 283).,
"10. Negligence in respect of poison (section 284), fire (section 285) or explosive",
substances (section 286).,
"11. Negligence in respect of machinery (section 287), building (section 288) or",
animals (section 289).,
"12. Selling obscene literature and pictures (sections 292, 293) or doing obscene",
acts (section 294).,
13. Keeping a lottery office (section 294A).,
"103.[s 292] Sale, of obscene book,",
"104.[(1) For the purposes of sub-section (2), a book, pamphlet, paper, writing,",
"drawing, painting, representation, figure or any other object, shall be",
deemed to be obscene if it is lascivious or appeals to the prurient interest,
"or if its effect, or (where it comprises two or more distinct items) the effect",
"of any one of its items, is if taken as a whole, such as to tend to deprave",
"and corrupt persons who are likely, having regard to all relevant",
"circumstances, to read, see or hear the matter contained or embodied in it.]",
105.[(2)] Whoever—,
"(a) sells, lets to hire, distributes, publicly exhibits or in any manner puts",
"into circulation, or for purposes of sale, hire, distribution, public",
"exhibition or circulation, makes, produces or has in his possession",
"any obscene book, pamphlet, paper, drawing, painting,",
"representation or figure or any other obscene object whatsoever, or",
"(b) imports, exports or conveys any obscene object for any of the",
"purposes aforesaid, or knowing or having reason to believe that",
"such object will be sold, let to hire, distributed or publicly exhibited",
"or in any manner put into circulation, or",
(c) takes part in or receives profits from any business in the course of,
which he knows or has reason to believe that any such obscene,
"objects are, for any of the purposes aforesaid, made, produced,",
"purchased, kept, imported, exported, conveyed, publicly exhibited or",
"in any manner put into circulation, or",
(d) advertises or makes known by any means whatsoever that any,
person is engaged or is ready to engage in any act which is an,
"offence under this section, or that any such obscene object can be",
"procured from or through any person, or",
(e) offers or attempts to do any act which is an offence under this,
"section,",
shall be punished 106.[on first conviction with imprisonment of either,
"description for a term which may extend to two years, and with fine which",
"may extend to two thousand rupees, and, in the event of a second or",
"subsequent conviction, with imprisonment of either description for a term",
"which may extend to five years, and also with fine which may extend to five",
thousand rupees].,
107.[Exception.—This section does not extend to—,
"(a) any book, pamphlet, paper, writing, drawing, painting,",
representation or figure—,
(i) the publication of which is proved to be justified as being for the,
"public good on the ground that such book, pamphlet, paper, writing,",
"drawing, painting, representation or figure is in the interest of",
"science, literature, art or learning or other objects of general",
"concern, or",
(ii) which is kept or used bona fide for religious purposes;,
"(a) any representation sculptured, engraved, painted or otherwise",
represented on or in—,
(i) any ancient monument within the meaning of the Ancient,
"Monuments and Archaeological Sites and Remains Act, 1958 (24 of",
"1958), or",
"(ii) any temple, or on any car used for the conveyance of idols, or kept",
or used for any religious purpose.]],
State Amendments,
"Orissa.— The following amendments were made by Orissa Act No. 13 of 1962, s. 2 (w.e.f.",
16-5-1962).,
"In its application to the whole State of Orissa, in Section 292, for the words, ""which may",
"extend to three months"", substitute the words ""which may extend to two years"" and",
"insert the following proviso before the Exception, namely:—",
"""Provided that for a second or any subsequent offence under this section, he shall be",
punished with imprisonment of either description for a term which shall not be less,
"than six months and not more than two years and with fine"".",
"Tamil Nadu.— The following amendments were made by Tamil Nadu Act No. 25 of 1960,",
s. 2 (w.e.f. 9-11-1960).,
"In its application to the whole of the State of Tamil Nadu, in Section 292, for the words",
"""shall be punished with imprisonment of either description for a term which may extend",
"to three months or with fine or with both"", substitute the following, namely:—",
"""shall be punished with imprisonment of either description for a term which may extend",
to two years or with fine or with both:,
"Provided that for a second or any subsequent offence under this section, he shall be",
punished with imprisonment of either description for a term which shall not be less,
"than six months and not more than two years and with fine"".",
COMMENT.—,
"section 292 IPC, 1860, was enacted by the Obscene Publications Act to give effect to",
Article I of the International Convention for the Suppression of the Circulation of and,
"Traffic in Obscene Publications to which India is a signatory. By Act 36 of 1969, section",
292 was amended to give more precise meaning to the word 'obscene' as used in the,
section in addition to creating an exception for publication of matter which is proved to,
"be justified as being for the public good, being in the interest of science, literature, art",
"or learning or other objects of general concern. Prior to its amendment, section 292",
contained no definition of obscenity. The amendment also literally does not provide for,
a definition of 'obscenity' in as much as it introduces a deeming provision.108. In order,
"to make the law relating to the publication of obscene matters or objects deterrent, the",
"section provides for enhanced punishment. The Exception to the original section, which",
"is now redrafted, exempts from the provisions of the section any representation,",
"sculptured, engraved or painted on or in any ancient monument. The possession",
"referred to in this section connotes conscious possession.109. By Act 25 of 1960, the",
"State of Tamil Nadu has added a new section as section 292A for dealing with printing,",
of grossly indecent or scurrilous matter or matter intended for blackmail. The State of,
Orissa has followed suit by Act 13 of 1962. The intention of the Legislature while,
amending the provision is to deal with this type of offences which corrupt the mind of,
the people to whom objectionable things can easily reach and need not be emphasized,
that corrupting influence is more likely to be upon the younger generation who has got,
to be protected from being easy prey.110. This section was amended by Act XXXVI,
"when apart from enlarging the scope of the exceptions, the penalty was enhanced",
which was earlier up to three months or with fine or with both. By the amendment a,
dichotomy of penal treatment was introduced for dealing with the first offenders and,
"the subsequent offenders. In the case of even a first conviction, the accused shall be",
punished with imprisonment of either description for a term which may extend to two,
"years and with fine which may extend to Rs 2,000.111.",
"1. 'Obscene'.—The word obscenity is not defined in the IPC, 1860. The word 'obscene'",
"was originally used to describe anything disgusting, repulsive, filthy or foul. The use of",
the word is now said to be somewhat archaic or poetic; and it is ordinarily restricted to,
"something offensive to modesty or decency, or expressing or suggesting unchaste or",
"lustful ideas, or being impure, indecent, or lewd.112. The obscene matter in a book must",
be considered by itself and separately to find out whether it is so gross and its,
"obscenity, so decided, that it is likely to deprave and corrupt those whose minds are",
open to influences of this sort and into whose hands the book is likely to fall. In this,
"connection, the interests of our contemporary society and particularly the influence of",
the book on it must not be overlooked.113. It was further observed in this case that,
merely treating with sex and nudity in art and literature cannot be regarded as evidence,
of obscenity without something more. It was held that where obscenity and art are,
"mixed, art must be so preponderating as to throw the obscenity into the shadow or the",
obscenity so trivial and insignificant that it can have no effect and may be overlooked.,
When treatment of sex becomes offensive to public decency and morality as judged by,
"the prevailing standards of morality in the society, then only the work may be regarded",
as an obscene production.114. In considering the question of obscenity of a publication,
"what the Court has to see is that whether a class, not an isolated case, into whose",
"hands the book, article or story falls suffer in their moral outlook or become depraved",
by reading it or might have impure and lecherous thoughts aroused in their minds.115. It,
was also observed in this case that the question of obscenity may have to be judged in,
the light of the claim that the work has a predominant literary merit. Referring to the,
"impact on the mind of the youth, the Court said:116.",
We do not think that it can be said with any assurance that merely because the adolescent,
"youth read situations of the type presented in the book, they would become deprived,",
debased and encouraged to lasciviousness. It is possible that they may come across such,
situations in life and may have to face them. But if a narration or description of a similar,
situation is given in a setting emphasising a strong moral to be drawn from it and condemns,
"the conduct of the erring party as wrong and loathsome, it cannot be said that they have a",
"likelihood of corrupting the morals of, those in whose hands it is likely to fall—particularly",
the adolescent.,
"In KA Abbas v UOI,117. the Supreme Court has called the test laid down in Mishkin's",
case118. as 'selective audience obscenity test' and observed as:,
our standards must be so framed that we are not reduced to a level where the protection of,
the least capable and the most depraved amongst us determines what the morally healthy,
cannot view or read ….,
The requirements of art and literature include within themselves a comprehensive view of,
social life and not only in its ideal form and the line is to be drawn where the average moral,
man begins to feel embarrassed or disgusted at a naked portrayal of life without the,
redeeming touch of art or genius or social value. If the depraved begins to see in these,
"things more than what an average person would, in much the same way, as it is wrongly",
"said, a Frenchman sees a woman's legs in everything, it cannot be helped. In our scheme of",
things ideas having redeeming social or artistic value must also have importance and,
protection for their growth.,
In the case of Samaresh Bose v Amal Mitra119. wherein the Supreme Court provided the,
following guidance:120.,
"In our opinion, in judging the question of obscenity, the judge in the first place should try to",
place himself in the position of the author and from the view point of the author the judge,
should try to understand what is it that the author seeks to convey and what the author,
conveys has any literary and artistic value. The judge should thereafter place himself in the,
position of a reader of every age group in whose hands the book is likely to fall and should,
try to appreciate what kind of possible influence the book is likely to have in the minds of,
the readers. The judge should thereafter apply his judicial mind dispassionately to decide,
whether the book in question can be said to be obscene within the meaning of the section,
by an objective assessment of the book as a whole and also of the passages complained of,
as obscene separately.,
It is no defence to a charge of obscenity merely to urge that the information has been,
copied from similar works.121.,
"In Promilla Kapur (Dr) v Yash Pal Bhasin, Promilla Kapur (Dr) v Yash Pal Bhasin,122. the",
Delhi High Court felt123. that there was nothing wrong if a sociologist made a research,
on the subject of call-girls in order to know the reasons as to why and how the young,
girls fall in this profession and what society could do in order to eradicate or at least,
minimise the possibility of young budding girls joining the flesh trade. The book was in,
the form of interviews with the girls in the profession. The portion marked by the,
Magistrate as obscene was a description of their encounters with unscrupulous males,
including a description by some girls of their first experience with sex. But by far the,
bulk of the book dealt with the ways and means of running the profession and the,
"methods of encountering them. Thus, the book was within the scope of clause (a) of",
"the first exception. In Bobby Art International v Om Pal Singh Hoon,124. while examining",
"the validity of certificate of exhibition awarded to the film ""Bandit Queen"" it was held",
"that nakedness does not always arouse the baser instinct. In Director General,",
"Directorate General of Doordarshan v Anand Patwardhan,125. the Supreme Court again",
referred to the Hicklin test and observed that the relevant questions are:,
(a) whether the average person applying contemporary community standards would,
"find that the work, taken as a whole appeal to the prurient interest.",
"(b) whether the work depicts or describes, in a patently offensive way, sexual",
"conduct specifically, defined by the applicable state law,",
"(c) whether the work taken as a whole, lacks serious literary, artistic, political or",
scientific value.,
"In the case of Ajay Goswami v UOI,126. the Supreme Court, while recognizing the right of",
"adult entertainment, reviewed the position of law on obscenity and summarized the",
various tests laid down regarding obscenity.,
[s 292.1] A picture of a woman in the nude is not per se obscene.—,
Unless the picture of a nude/semi-nude female is an incentive to sensuality or impure,
"or excite the thoughts in the mind of an ordinary person of normal temperament, the",
"pictures cannot be regarded as obscene within the meaning of section 292 IPC, 1860.",
But where repetitive photographs without any backdrop content are published in a,
magazine and nearly l/4th of the magazine consists of nothing but repetitive,
"photographs of semi-nude women, prominence being to display their breast, there",
"being hardly any literary contents in the magazine, the matter loses any literary content",
and therefore the broad social outlook penned in Ranjit Udeshi's case127. may not be,
available as a defence.128. To fall within the scope of 'obscene' under sections 292 and,
"294 IPC, the ingredients of the impugned matter/art must lie at the extreme end of the",
spectrum of the offensive matter. The legal test of obscenity is satisfied only when the,
"impugned art/matter can be said to appeal to an unhealthy, inordinate person having",
perverted interest in sexual matters or having a tendency to morally corrupt and debase,
persons likely to come in contact with the impugned art.129.,
[s 292.2] Hicklin Test and Community Standard Test.—,
One of the tests to be applied to find whether an article possesses the standard of,
"obscenity is the Hicklin Test.130. As per this, the test of obscenity is whether the",
tendency of the matter charged as obscenity is to deprave and corrupt those whose,
minds are open to such immoral influences and into whose hands a publication of this,
"sort may fall. The other test is Community Standard Test, whereby the obscenity has to",
"be judged from the point of view of an average person, by applying contemporary",
"community standards. In Aveek Sarkar v State of WB,131. the Supreme Court was of the",
"view that Hicklin test is not the correct test to be applied to determine ""what is",
"obscenity"".",
"When the name of Mahatma Gandhi is alluded or used as a symbol, speaking or using",
"obscene words, the concept of ""degree"" comes in. To elaborate, the ""contemporary",
"community standards test"" becomes applicable with more vigour, in a greater degree",
and in an accentuated manner.132.,
[s 292.3] Khushboo Case.—,
"In Khushboo v Kanniammal,133. the appellant, a popular actress expressed her personal",
"opinion wherein she had noted the increasing incidence of pre-marital sex, especially in",
the context of live-in relationships and called for the societal acceptance of the same.,
"However, appellant had also qualified her remarks by observing that girls should take",
adequate precautions to prevent unwanted pregnancies and the transmission of,
venereal diseases. The Supreme Court said it failed to see how the appellant's remarks,
"amount to 'obscenity' in the context of section 292 IPC, 1860. It was difficult to",
appreciate the claim that the statements published as part of the survey were in the,
nature of obscene communications.,
"[s 292.4] Meaning of the word obscene in sections 292, 293 and section",
294(b).—,
The word 'obscene' is not defined differently in these sections but the punishments,
were prescribed differently in other sections depending upon the effect of 'obscenity',
that causes on the viewer or hearer as the case may be. That also would sufficiently,
indicate that the said word is to be understood as understood for the purpose of,
section 292.134.,
[s 292.5] Certificate of Censor Board.—,
"Once the film is given a particular certification, no doubt the case of obscenity under",
"section 292 of the IPC, 1860, cannot be made out when the said film is shown to the",
"particular category for which the certificate is granted. Again, the pre-condition is that",
there has to be a certification by the Board of Film Censors. In the absence of any such,
"certificate, the petitioners cannot claim immunity from prosecution under section 292",
"of the IPC.135. In GP Lamba v Tarun Mehta,136. explaining the role of the Censor Board",
"certificate,137. the Court said:",
The law presumes the regular performance of official acts. This is not to suggest that the,
grant of a certificate debars the court from judging the obscenity of a film..... or that the,
certificate is conclusive.... such a certificate is the opinion of a high powered Board,
especially entrusted with power to screen off the silver screen pictures which offensively,
"invade or deprave public morale through over-sex... The rebuttable presumption, which",
"arises in favour of the statutory certificate, can be negatived by positive evidence. No such",
evidence was before the court.138.,
"In the matter of sex knowledge, the Court said:",
"In the present day society in India, a book, picture or a publication which deals with such",
matter cannot per se be said to be obscene.139.,
The Court further added that in order to satisfy the requirement of mens rea there must,
be a distinct finding that the matter complained of was inserted by the order or owing,
to the negligence of the proprietor.140.,
[s 292.6] Public interest.—,
An obscene advertisement was published in a daily. The advertiser said that the,
publication was intended in good faith to promote sale of condoms. The advertisement,
was withdrawn because of social objections. The advertiser also apologised. The,
complaint filed by a social worker was no doubt maintainable but it was quashed,
because the complainant's interest should give way to the larger public interest as to,
whether prosecution would be proper in the circumstances of the case.141.,
[s 292.7] For sale.—,
Possession of obscene objects is punishable if the possession is for the purpose of,
"sale, hire, distribution, public exhibition or circulation. Persons who were found viewing",
obscene films on television with the help of VCR could not be charged for the offence,
punishable under section 292.142.,
[s 292.8] Effect upon children.—,
The accused could not be convicted of possessing an indecent photograph unless he,
"knew that he had the photograph in his possession. The ""making"" of an indecent",
"photograph included copying, downloading or storing it on a computer, provided that it",
was done knowingly.143.,
"[s 292.9] Pornography, incitement for supply of material.—",
"Act of accused, privately viewing obscene film does not constitute on offence under",
"section 292 of IPC, 1860.144. Mere possession of an obscene cassette by itself does",
"not amount to an offence punishable under section 292(2) IPC. In the case on hand, the",
accused was found managing a video shop wherein obscene cassette containing a,
"blue-film evidently kept for hire to the potential customers, was found. In such",
"circumstances, it cannot be said that the possession of the cassette was without the",
requisite mens rea or that it and does not attract the ingredients of the offence,
"punishable under section 292 IPC.145. In another case, it was proved that the accused",
showed pornographic film on the handicam to the prosecutrix. Though the charge of,
"rape failed, conviction under sections 292 and 506 was upheld.146.",
"Generally, evidence of expert is inadmissible whether an article or book has a tendency",
"to deprave and corrupt persons who are likely to read, hear or see the matter in",
question.147. The only exception is where the likely readers belong to a special class,
"such as young children,148. In Samaresh Base's case149. the Supreme Court of India",
considered the evidence of two eminent Bengali novelists to determine whether the,
"book 'Prajapati', a Bengali novel, has a tendency to deprave and corrupt youth, who are",
likely to read it and having regard to their evidence decided the case in favour of the,
"accused. It was however held that, though a Court of law may consider the views of",
"reputed authors or leading literatures, the ultimate duty to make a proper assessment",
regarding obscenity or otherwise of a book rests only with the Court.150. The,
prosecution need not prove something which the law does not burden it with. As,
"regards the second part of the guilty act (actus reus), i.e. the selling or keeping for sale",
"an object which is found to be obscene, here of course the ordinary mens rea is",
"required to be shown before the offence can be said to be complete. Even so, it was",
held in this case that in criminal prosecution mens rea must necessarily be proved by,
"circumstantial evidence alone unless the accused confesses. Thus, it is not required",
"that prosecution must prove guilty intention to possess or possess for sale, by positive",
evidence. The Court will presume that the owner of the shop is guilty if the book is sold,
on his behalf and later found to be obscene unless he can establish that the sale was,
without his knowledge or consent. Thus to escape liability he has to prove his lack of,
"knowledge.151. In India, it is also a defence to plead a certificate given by the Board of",
"Censors. Thus, a certificate granted by the Board of Censors under section 5A of the",
"Cinematograph Act 1952, certifying a film to be fit for public exhibition, circulation or",
"distribution would by virtue of section 79, IPC, 1860, make prosecution under section",
"292, IPC, unsustainable even if the film be obscene, lascivious or tending to deprave or",
"corrupt public morale. This is so as section 79, IPC, (justification on ground of bona fide",
mistake of fact) is exculpatory when read with section 5A of the Cinematograph Act,
and the certificate issued thereunder.152.,
[s 292.10] Obscenity in the internet and other electronic mediums.—,
section 67 of the Information Technology Act 2000 is the first statutory provisions,
"dealing with obscenity on the Internet in India. Sections 67, 67A and 67B of the",
Information Technology Act 2000 deal with obscenity in electronic sphere.,
"It must be noted that the both under IPC, 1860, and the Information Technology Act,",
"2000, the test to determine obscenity is similar.153.",
A special law shall prevail over the general and prior laws. Electronic forms of,
"transmission is covered by the IT Act, which is a special law. When the Act in various",
"provisions deals with obscenity in electronic form, it covers the offence under section",
"292 IPC, 1860. Once the special provisions having the overriding effect do cover a",
"criminal act and the offender, he gets out of the net of the IPC and in this case, section",
"292 IPC, 1860. Though charge has not been made out under section 67 of the IT Act,",
yet the accused-appellant could not be proceeded under section 292 IPC.154.,
State Amendments,
(Section 292-A insertion),
"Orissa.— The following amendments were made by Orissa Act No. 13 of 1962, s. 3 (w.e.f.",
16-5-1962).,
"In its application to the whole State of Orissa, after Section 292, insert the following",
"new section, namely:—",
"292-A. Printing, etc. of grossly indecent or scurrilous matter or matter intended for",
blackmail.— Whoever—,
"(a) prints or causes to be printed in any newspaper, periodical or circular, or exhibits or",
"causes to be exhibited, to public view or distributes or causes to be distributed or in",
any manner puts into circulation any picture or any printed or written document which,
"is grossly indecent, or is scurrilous or intended for blackmail; or",
"(b) sells or lets for hire, or for purposes of sale or hire makes, produces or has in",
"possession, any picture or any printed or written document which is grossly indecent or",
is scurrilous or intended for blackmail; or,
(c) conveys any picture or any printed or written document which is grossly indecent or,
is scurrilous or intended for blackmail knowing or having reason to believe that such,
"picture or document will be printed, sold, let for hire, distributed or publicly exhibited or",
in any manner put into circulation; or,
"(d) takes part in, or receives profits from any business in the course of which he knows,",
"or has reason to believe that any such newspaper, periodical, circular, picture, or other",
"printed or written document is printed, exhibited, distributed, circulated, sold, let for",
"hire, made, produced, kept, conveyed or purchased; or",
(e) advertises or makes known by any means whatsoever that any person is engaged,
"or is ready to engage in any act which is an offence under this section, or that any such",
"newspaper, periodical, circular, picture or other printed or written document which is",
grossly indecent or is scurrilous or intended for blackmail can be procured from or,
through any person; or,
"(f) offers or attempts to do any act which is an offence under this section, shall be",
punished with imprisonment of either description for a term which may extend to two,
"years, or with fine, or with both:",
"Provided that for a second or any subsequent offence under this section, he shall be",
punished with imprisonment of either description for a term which shall not be less,
than six months and not more than two years and with fine.,
"Explanation I.—For the purposes of this section, the word ""scurrilous"" shall be deemed",
to include any matter which is likely to be injurious to morality or is calculated to injure,
any person:,
Provided that it is not scurrilous to express in good faith anything whatever respecting,
the conduct of—,
(i) a public servant in the discharge of his public functions or respecting his character,
so far as his character appears in that conduct and no further; or,
"(ii) any person touching any public question, and respecting his character, so far as his",
character appears in that conduct and no further.,
Explanation II.—In deciding whether any person has committed an offence under this,
"section, the Court shall have regard, inter alia, to the following considerations:—",
"(a) the general character of the person charged, and where relevant, the nature of his",
business;,
(b) the general character and dominant effect of the matter alleged to be grossly,
indecent or scurrilous or intended for blackmail;,
(c) any evidence offered or called by or on behalf of the accused person as to his,
"intention in committing any of the acts specified in this section"".",
"Tamil Nadu.— The following amendments were made by T.N. Act No. 25 of 1960, s. 2",
(w.e.f. 9-11-1960).,
"In its application to the whole of the State of Tamil Nadu, after Section 292, insert the",
"following new section, namely:—",
"""292-A.Printing, etc., of grossly indecent or scurrilous matter or matter intended for",
blackmail.— Whoever—,
"(a) prints or causes to be printed in any newspaper, periodical or circular, or exhibits or",
"causes to be exhibited, to public view or distributes or causes to be distributed or in",
any manner puts into circulation any picture or any printed or written document which,
"is grossly indecent, or is scurrilous or intended for blackmail; or",
"(b) sells or lets for hire, or for purposes of sale or hire makes, produces or has in his",
"possession, any picture or any printed or written document which is grossly indecent or",
is scurrilous or intended for blackmail; or,
(c) conveys any picture or any printed or written document which is grossly indecent or,
is scurrilous or intended for blackmail knowing or having reason to believe that such,
"picture or document will be printed, sold, let for hire, distributed or publicly exhibited or",
in any manner put into circulation; or,
"(d) takes part in, or receives profits from, any business in the course of which he knows",
"or has reason to believe that any such newspaper, periodical, circular, picture or other",
"printed or written document is printed, exhibited, distributed, circulated, sold, let for",
"hire, made, produced, kept, conveyed or purchased; or",
(e) advertises or makes known by any means whatsoever that any person is engaged,
"or is ready to engage in any act which is an offence under this section, or that any such",
"newspaper, periodical, circular, picture or other printed or written document which is",
grossly indecent or is scurrilous or intended for blackmail can be procured from or,
through any person; or,
"(f) offers or attempts to do any act which is an offence under this section, 155.[shall be",
punished with imprisonment of either description for a term which may extend to two,
"years, or with fine, or with both].",
"Provided that for a second or any subsequent offence under this section, he shall be",
punished with imprisonment of either description for a term which shall not be less,
than six months 156.[and not more than two years] and with fine.,
"Explanation I.—For the purposes of this section, the word 'scurrilous' shall be deemed to",
include any matter which is likely to be injurious to morality or is calculated to injure,
any person:,
Provided that it is not scurrilous to express in good faith anything whatever respecting,
the conduct of—,
(i) a public servant in the discharge of his public functions or respecting his character,
so far as his character appears in that conduct and no further; or,
"(ii) any person touching any public question, and respecting his character, so far as his",
character appears in that conduct and no further.,
Explanation II.—In deciding whether any person has committed an offence under this,
"section, the Court shall have regard, inter alia, to the following considerations:—",
"(a) the general character of the person charged, and where relevant, the nature of his",
business;,
(b) the general character and dominant effect of the matter alleged to be grossly,
indecent or scurrilous or intended for blackmail;,
(c) any evidence offered or called by or on behalf of the accused person as to his,
"intention in committing any of the acts specified in this section"".",
"103. Subs. by Act 8 of 1925, section 2, for section 292.",
"104. Ins. by Act 36 of 1969, section 2 (w.e.f. 7-9-1969).",
"105. Section 292 renumbered as sub-section (2) thereof by Act 36 of 1969, section 2 (w.e.f. 7-9-",
1969).,
"106. Subs. by Act 36 of 1969, section 2, for certain words (w.e.f. 7-9-1969).",
"107. Subs. by Act 36 of 1969, section 2, for Exception (w.e.f. 7-9-1969).",
"108. MF Husain v Raj Kumar Pandey, 2008 Cr LJ 4107 (Del).",
"109. CT Prim, AIR 1961 Cal 177 [LNIND 1959 CAL 81] .",
"110. Gita Ram v State of HP, AIR 2013 SC 641 [LNINDORD 2013 SC 18666] : (2013) 2 SCC 694",
[LNIND 2013 SC 82] .,
"111. Uttam Singh v The State (Delhi Administration), (1974) 4 SCC 590 [LNIND 1974 SC 113] :",
1974 SCC (Cr) 626 : AIR 1974 SC 1230 [LNIND 1974 SC 113] : 1974 (3) SCR 722 [LNIND 1974 SC,
113] : 1974 Cr LJ 423 .,
"112. Devidas Ramachandra Tuljapurkar v State of Maharashtra, AIR 2015 SC 2612 [LNIND 2015",
SC 338] : 2015 (6) Scale 356 [LNIND 2015 SC 338] .,
"113. Ranjit D Udeshi, (1965) 1 SCR 65 [LNIND 1964 SC 205] SC : (1964) 67 Bom LR 506 : AIR",
1965 SC 881 [LNIND 1964 SC 205] : 1965 (2) Cr LJ 8 .,
114. Ibid.,
"115. Chandrakant Kalyandas Kakodkar, (1969) 72 Bom LR 917 SC : AIR 1970 SC 1390 [LNIND",
1969 SC 293] : 1970 Cr LJ 1273 .,
116. AIR 1970 SC 1390 [LNIND 1969 SC 293] at p 1394 : 1970 Cr LJ 1273 .,
"117. KA Abbas v UOI, 1970 (2) SCC 780 [LNIND 1970 SC 388] : AIR 1971 SC 481 [LNIND 1970",
SC 388] : 1971 (2) SCR 446 [LNIND 1970 SC 388] .,
"118. Mishkin v New York, 383 US 502.",
"119. Samaresh Bose v Amal Mitra, AIR 1986 SC 967 [LNIND 1985 SC 296] : 1986 Cr LJ 24 :",
(1985) 4 SCC 289 [LNIND 1985 SC 296] .,
"120. 1986 Cr LJ 24 , at p 38.",
"121. Thakur Prasad, AIR 1959 All 49 [LNIND 1958 ALL 94] .",
"122. Promilla Kapur (Dr) v Yash Pal Bhasin, Promilla Kapur (Dr) v Yash Pal Bhasin, 1989 Cr LJ",
1241 (Del).,
123. At p 1245 per PK Bahri J.,
"124. Bobby Art International v Om Pal Singh Hoon, 1996 (4) SCC 1 [LNIND 1996 SC 2602] : AIR",
1996 SC 1846 [LNIND 1996 SC 2602] .,
"125. Director General, Directorate General of Doordarshan v Anand Patwardhan, 2006 (8) SC 255 .",
"126. Ajay Goswami v UOI, 2007 (1) SCC 143 [LNIND 2006 SC 1133] : AIR 2007 SC 493 [LNIND",
2006 SC 1133] .,
127. Supra.,
"128. Vinay Mohan Sharma v Administration, 2008 Cr LJ 1672 (Del); Sree Ram Saksena, (1940) 1",
Cal 581 .,
"129. MF Husain v Raj Kumar Pandey, 2008 Cr LJ 4107 (Del).",
"130. R v Hicklin, 1868 L.R. 2 Q.B. 360.",
"131. Aveek Sarkar v State of WB, 2014 Cr LJ 1560 : (2014) 4 SCC 257 [LNIND 2014 SC 84] .",
"132. Devidas Ramachandra Tuljapurkar v State of Maharashtra, 2015 Cr LJ 3492 .",
"133. Khushboo v Kanniammal, 2010 (5) SCC 600 [LNIND 2010 SC 411] : 2010 (4) Scale 462",
[LNIND 2010 SC 411] : AIR 2010 SC 3196 [LNIND 2010 SC 411] : 2010 Cr LJ 2828 .,
"134. Dhanisha v Rakhi N Raj, 2012 Cr LJ 3225 .",
"135. R Basu and Etc v National Capital Territory of Delhi, 2007 Cr LJ 4254 (Del). See other SC",
"cases relating to censorship KA Abbas, AIR 1971 SC 481 [LNIND 1970 SC 388] ; Raj Kapoor,",
"1980 Cr LJ 436 ; Bobby Art International v Om Pal Singh, AIR 1996 SC 1846 [LNIND 1996 SC",
"2602] ; S Rangarajan's case, (1989) 2 SCC 574 [LNIND 1986 SC 198] : 1989 (2) JT (SC) 170;",
"Ramesh v UOI, (1988) 1 SCC 668 [LNIND 1988 SC 74] : 1988 SCC (Cr) 266; Director General,",
"Directorate General of Doordarshan v Anand Patwardhan, AIR 2006 SC 3346 [LNIND 2006 SC 661]",
.,
"136. GP Lamba v Tarun Mehta, 1988 Cr LJ 610 (P&H).",
"137. Issued under the Cinematographic Act, 1952. See also PK Somnath v State of Kerala, 1990",
"Cr LJ 542 (Ker), Violation of Indecent Representation of Woman (Prohibition) Act, 1986",
proceedings not quashed and points of difference between obscenity and pornography,
explained.,
"138. GP Lamba v Tarun Mehta, 1988 Cr LJ 610 (P&H).",
"139. Issued under the Cinematographic Act, 1952. See also PK Somnath v State of Kerala, 1990",
"Cr LJ 542 (Ker), Violation of Indecent Representation of Woman (Prohibition) Act, 1986",
proceedings not quashed and points of difference between obscenity and pornography,
explained.,
"140. Ibid, see at p 613.",
"141. Chairman & MD, Hindustan Latex Ltd v State of Kerala, 1999 Cr LJ 808 (Ker).",
"142. Jagdish Chawla v State of Rajasthan, 1999 Cr LJ 2562 (Raj). Damodar Sarma v State of",
Assam 2007 Cr LJ 1526 (Gau) - Obscene books.,
"143. Atkins v DPP; Goodland v DPP, (2000) 1 WLR 1427 (QBD).",
"144. Deepankar Chowdari v State of Karnataka, 2008 Cr LJ 3408 (Kar); Jagdish Chawla v State of",
"Rajasthan, 1999 Cr LJ 2562 (Raj).",
"145. Abdul Rasheed v State of Kerala, 2008 Cr LJ 3480 (Ker).",
"146. Vijay Sood v State of HP, 2009 Cr LJ 4530 (HP).",
147. Ibid.,
"148. Ibid; Director of Public Prosecutions v A & BC Chewing, (1967) 2 All ER 504 .",
"149. Samaresh Bose v Amal Mitra, 1986 Cr LJ 24 : AIR 1986 SC 967 [LNIND 1985 SC 296] :",
(1985) 4 SCC 289 [LNIND 1985 SC 296] .,
150. Ibid.,
"151. Ibid; See also State of Karnataka v Basheer, 1979 Cr LJ 1183 (Kar).",
"152. Raj kapoor v Laxman, 1980 Cr LJ 436 : AIR 1980 SC 605 [LNIND 1979 SC 492] .",
"153. MF Husain v Raj Kumar Pandey, 2008 Cr LJ 4107 (Del).",
"154. Sharat Babu Digumarti v Govt of NCT of Delhi, AIR 2017 SC 150 [LNIND 2016 SC 616] .",
"155. Subs. for the words ""shall be punished on first conviction with imprisonment of either",
"description for a term which may extend to two years or with fine or with both, and, in the event",
of a second or subsequent conviction with imprisonment of either description for a term which,
"may extend to five years and with fine"" by the T.N. Act 30 of 1984, section 2 (w.e.f. 28-6-1984).",
"156. Ins. by T.N. Act 30 of 1984, section 2 (w.e.f. 28-6-1984).",
THE INDIAN PENAL CODE,
"CHAPTER XIV OF OFFENCES AFFECTING THE PUBLIC HEALTH, SAFETY",
"CONVENIENCE, DECENCY AND MORALS",
The following specific instances of nuisance are dealt with in this Chapter:—,
1. Act likely to spread infection (sections 269–271).,
2. Adulteration of food or drink (sections 272–273).,
3. Adulteration of drugs (sections 274–276).,
4. Fouling water of a public spring or reservoir (section 277).,
5. Making atmosphere noxious to health (section 278).,
6. Rash driving or riding (section 279).,
7. Rash navigation (sections 280-282).,
"8. Exhibition of false light, mark or buoy (section 281).",
9. Danger or obstruction in a public way or line of navigation (section 283).,
"10. Negligence in respect of poison (section 284), fire (section 285) or explosive",
substances (section 286).,
"11. Negligence in respect of machinery (section 287), building (section 288) or",
animals (section 289).,
"12. Selling obscene literature and pictures (sections 292, 293) or doing obscene",
acts (section 294).,
13. Keeping a lottery office (section 294A).,
"157.[s 293] Sale, of obscene objects to young person.",
"Whoever sells, lets to hire, distributes, exhibits or circulates to any person under the",
age of twenty years any such obscene object as is referred to in the last preceding,
"section, or offers or attempts so to do, shall be punished 2 [on first conviction with",
"imprisonment of either description for a term which may extend to three years, and",
"with fine which may extend to two thousand rupees, and, in the event of a second or",
"subsequent conviction, with imprisonment of either description for a term which may",
"extend to seven years, and also with fine which may extend to five thousand rupees].]",
State Amendments,
"Orissa.—The following amendments were made by Orissa Act No. 13 of 1962, s. 4 (w.e.f.",
16-5-1962).,
"In its application to the whole State of Orissa, in Section 293:—",
In section 293 of the said Code—,
"(i) for the words ""any such obscene object as is referred to in the last preceding",
"section"", the words, figures and letter ""any such obscene object as is referred to in",
"section 292 or any such newspaper, periodical, circular, picture or other printed or",
"written document as is referred to in section 292-A"" shall be substituted;",
"(ii) for the words ""which may extend to six months"", the words ""which may extend to",
"three years"" shall be substituted;",
"(iii) in the marginal note, after the words ""obscene objects"" the words ""and grossly",
"indecent or scurrilous matter or matter intended for blackmail"", shall be inserted.",
"Tamil Nadu.— The following amendments were made by T.N. Act No. 25 of 1960, s. 4",
(w.e.f. 9-11-1960).,
"In its application to the whole of the State of Tamil Nadu, in Section 293,—",
"Amendment of section 293, Central Act XLV of 1860.—In section 293 of the said Code—",
(i) for the words 'any such obscene object as is referred to in the last preceding,
"section', the words, figures and letter ""any such obscene object as is referred to in",
"Section 292 or any such newspaper, periodical, circular, picture or other printed or",
"written document as is referred to in Section 292A"", shall be substituted;",
"(ii) for the words 'which may extend to six months', the words 'which may extend to",
"three years"" shall be substituted; and",
"(iii) in the marginal note, after the words ""obscene objects"" the words ""and grossly",
"indecent or scurrilous matter or matter intended for blackmail"", shall be inserted.",
COMMENT.—,
"This section provides for enhanced sentence where the obscene objects are sold, to",
persons under the age of 20 years. By Act 36 of 1969 the punishment for the offence is,
"further enhanced. On going through section 293, it is clear that a separate penal",
"provision was made with regard to the sale, exhibition, of such obscene object to any",
"person under the age of 20 years where as section 292 (1) deals with sale, exhibition,",
"of such obscene object to any person. Therefore, in order to make the provision more",
"stringent and grave insofar as it relates to the sale, of obscene objects to younger",
"persons–aged less than 20 years, a separate penal provision, made applicable in",
"section 293, was introduced. It is in that context, the word 'obscene' occurring in",
section 292(1) is made applicable to section 293 also.158. In a trial for the offences,
"under sections 292 and 293 of the IPC, 1860, a certificate granted under section 6 of",
the Cinematograph Act by the Board of Censors does not provide an irrebuttable,
"defence to accused who have been granted such a certificate, but it is certainly a",
relevant fact of some weight to be taken into consideration by the criminal Court in,
deciding whether the offence charged is established. The Court must have regard to,
the fact that the certificate represents the judgment of a body of persons particularly,
selected under the statute for the specific purpose of adjudging the suitability of films,
"for public exhibition, and that judgment extends to a consideration of the principal",
"ingredients which go to constitute the offences under sections 292 and 293 of the IPC,",
"1860. At the same time, the Court must remind itself that the function of deciding",
"whether the ingredients are established is primarily and essentially its own function,",
"and it cannot abdicate that function in favour of another, no matter how august and",
qualified be the statutory authority.159.,
[s 293.1] CASE.—,
The allegation is that the petitioner was a spectator of the blue-film and therefore an,
"abettor of the offences under sections 292, 293 and 294 IPC, 1860. This interposition",
"as a mere spectator to the exhibition of a blue-film without any further complicity, in",
"view of the above Supreme Court decision, cannot be taken to be amounting to",
abetment of the main offence.160.,
[s 293.2] Benefit of Probation.—,
Exhibiting a blue-film in which man and woman were shown in the act of sexual,
intercourse to young boys would definitely deprave and corrupt their morals. Their,
"minds are impressionable. On their impressionable minds, anything can be imprinted.",
Things would have been different if that blue-film had been exhibited to mature minds.,
Showing a man and a woman in the act of sexual intercourse tends to appeal to the,
"carnal side of the human nature. Even if he is the first offender, he cannot be given the",
"benefit of Probation of Offenders Act, 1958.161.",
"157. Subs. by Act 8 of 1925, section 2, for section 293.",
"158. Dhanisha v Rakhi N Raj, 2012 Cr LJ 3225 .",
"159. Raj Kapoor v State (Delhi Administration), AIR 1980 SC 258 [LNIND 1979 SC 428] : (1980) 1",
SCC 43 [LNIND 1979 SC 428] .,
"160. Dr B Rosaiah v State of AP, 1990 Cr LJ 189 (AP).",
"161. Gita Ram v State of HP, AIR 2013 SC 641 [LNINDORD 2013 SC 18666] : (2013) 2 SCC 694",
"[LNIND 2013 SC 82] ; Uttam Singh v The State (Delhi Administration, (1974) 4 SCC 590 [LNIND",
1974 SC 113] : 1974 SCC (Cr) 626 : AIR 1974 SC 1230 [LNIND 1974 SC 113] : 1974 (3) SCR 722,
"[LNIND 1974 SC 113] : 1974 Cr LJ 423 ; Bharat Bhushan v State of Punjab, reported in 1999 (2)",
RCR (Cr) 148.,
THE INDIAN PENAL CODE,
"CHAPTER XIV OF OFFENCES AFFECTING THE PUBLIC HEALTH, SAFETY",
"CONVENIENCE, DECENCY AND MORALS",
The following specific instances of nuisance are dealt with in this Chapter:—,
1. Act likely to spread infection (sections 269–271).,
2. Adulteration of food or drink (sections 272–273).,
3. Adulteration of drugs (sections 274–276).,
4. Fouling water of a public spring or reservoir (section 277).,
5. Making atmosphere noxious to health (section 278).,
6. Rash driving or riding (section 279).,
7. Rash navigation (sections 280-282).,
"8. Exhibition of false light, mark or buoy (section 281).",
9. Danger or obstruction in a public way or line of navigation (section 283).,
"10. Negligence in respect of poison (section 284), fire (section 285) or explosive",
substances (section 286).,
"11. Negligence in respect of machinery (section 287), building (section 288) or",
animals (section 289).,
"12. Selling obscene literature and pictures (sections 292, 293) or doing obscene",
acts (section 294).,
13. Keeping a lottery office (section 294A).,
162.[s 294] Obscene acts and songs.,
"[Whoever, to the annoyance of others—",
"(a) does any obscene act in any public place, or",
"(b) sings, recites or utters any obscene songs, ballad or words, in or near any",
"public place,",
shall be punished with imprisonment of either description for a term which may,
"extend to three months, or with fine, or with both.]",
COMMENT.—,
"Ingredients.—(i) the offender has done any obscene act in any public place or has sung,",
recited or uttered any obscene songs or words in or near any public place; and (ii) has,
"so caused annoyance to others. If the act complained of is not obscene, or is not done",
"in any public place, or the song recited or uttered is not obscene, or is not sung, recited",
"or uttered in or near any public place, or that it causes no annoyance to others, the",
offence is not committed.163. To fall within the scope of 'obscene' under sections 292,
"and 294 IPC, 1860, the ingredients of the impugned matter/art must lie at the extreme",
end of the spectrum of the offensive matter. The legal test of obscenity is satisfied only,
"when the impugned art/matter can be said to appeal to an unhealthy, inordinate person",
having perverted interest in sexual matters or having a tendency to morally corrupt and,
debase persons likely to come in contact with the impugned art. It must also be,
remembered that a piece of art may be vulgar but not obscene. In order to arrive at a,
dispassionate conclusion where it is crucial to understand that art from the perspective,
"of the painter, it is also important to picture the same from a spectator's point of view",
who is likely to see it.164. The obscene act or song must cause annoyance. Though,
"annoyance is an important ingredient of this offence, it being associated with mental",
"condition, has often to be inferred from proved facts. Thus, where a Doctor was filthily",
abused in a public place by dragging the name of his wife and he and some members,
"of the public were impelled to complain to the police, it was held that there was",
sufficient indication of the fact that they were all annoyed even though it was not stated,
or spoken to by them in their evidence.165.,
[s 294.1] Public Place.—,
Hotels like the one where cabaret dances are performed and entry is restricted by,
"purchase of the tickets, would still be the public places within the meaning of section",
"294 of the IPC, 1860.166. An offence under the section could not be made out by",
uttering words in a private garden which was not a public place.167.,
[s 294.2] CASES.—,
"Where the accused addressed openly two respectable girls who were strangers to him,",
in amorous words suggestive of illicit sex relations with them and asked them to go,
"along with him on his rickshaw, he was held to have committed an obscene act.168.",
Performance of cabaret dance devoid of nudity and obscenity according to Indian,
social standards in hotels and restaurants is not liable to be banned or prevented.169.,
[s 294.3] MF Husain's case.—,
The renowned artist MF Husain challenged the summoning orders against him which,
arose from a contemporary painting celebrating nudity made by petitioner.,
"Subsequently in the year 2006, the said painting entitled 'Bharat Mata' was advertised",
as part of an online auction for charity for Kashmir earthquake victims organised by a,
non-governmental organisation with which the petitioner claimed to have no,
involvement. It was stated that the petitioner at no point in time had given a title to the,
said painting. There can be no exasperation caused by viewing such painting on the,
website for the reason that a person would first access such a website only if he has,
"some interest in art and that too contemporary art, and in case he does view such a",
"website, he always would have the option to not to view or close the said web page. It",
appeared that the complainants are not the types who would go to art galleries or have,
"an interest in contemporary art, because if they did, they would know that there are",
"many other artists who embrace nudity as part of their contemporary art. Hence, the",
"offence alleged under section 294 IPC, 1860, could not be made out.170.",
[s 294.4] Cabaret dance.—,
"In Narendra H Khurana v Commissioner,171. a division bench of Bombay High Court",
examined the question whether the nude cabaret dances which are per se indecent and,
"obscene, held in a restaurant on purchase of tickets would warrant prosecution under",
"section 294 of the IPC, 1860, in the absence of express evidence of annoyance by any",
of the persons who attend such shows. It was held that cabaret dances where indecent,
and obscene act per se is involved would not attract the provision of section 294 of the,
"IPC without fulfilment of its essential ingredients, i.e. Evidence pertaining to",
"""annoyance to others"". In State of Maharashtra v Indian Hotel & Restaurants",
"Association,172. the Supreme Court lifted the ban on dance bars holding that ""we fail to",
see how exactly the same dances can be said to be morally acceptable in the,
exempted establishments and lead to depravity if performed in the prohibited,
establishments. Rather it is evident that the same dancer can perform the same dance,
"in the high-class hotels, clubs, and gymkhanas but is prohibited of doing so in the",
"establishments covered under section 33A of Bombay Police Act, 1951. We see no",
rationale which would justify the conclusion that a dance that leads to depravity in one,
"place would get converted to an acceptable performance by a mere change of venue"".",
[s 294.5] Moral turpitude.—,
Offence under section 294 does not involve moral turpitude.173.,
[s 294.6] Section 294(b).—,
"To make out an offence under section 294(b) of IPC, 1860, the alleged obscene act",
must have been committed by the accused in or near a public place. Writing obscene,
letters and sending them to the victim on her personal address and which were,
expected to be read by her privately does not constitute the offence.174.,
"162. Subs. by Act 3 of 1895, section 3, for section 294.",
"163. Pawan Kumar v State of Haryana, AIR 1996 SC 3300 [LNIND 1996 SC 2868] : (1996) 4 SCC",
17 [LNIND 1996 SC 2868] .,
"164. MF Husain v Raj Kumar Pandey, 2008 Cr LJ 4107 (Del).",
"165. Patel HM v Malle Gowda, 1973 Cr LJ 1047 (Mys).",
"166. Narendra H Khurana v Commissioner, 2004 Cr LJ 3393 (Bom).",
"167. Saraswathi v State of TN, 2002 Cr LJ 1420 (Mad); K Jayaramanuja v Kanakraj, 1997 Cr LJ",
"1623 (Mad), words complained of did not show annoyance to others. Acquittal, no interference",
in revision.,
"168. Zafar Ahmad, AIR 1963 All 105 [LNIND 1962 ALL 125] ; Sadar Prasad, 1970 Cr LJ 1323",
(Pat).,
"169. KP Mohammad, 1984 Cr LJ 745 (Ker). See also Chander Kala v Ram Kishan, AIR 1985 SC",
1268 [LNIND 1985 SC 166] : 1985 Cr LJ 1490 : (1985) 4 SCC 212 [LNIND 1985 SC 166] : 1985,
"SCC (Cr) 491, where the offence was proved with cogent evidence.",
"170. MF Husain v Raj Kumar Pandey, 2008 Cal LJ 4107 (Del).",
"171. Narendra H Khurana v Commissioner, 2004 Cr LJ 3393 (Bom),",
"172. State of Maharashtra v Indian Hotel & Restaurants Association, AIR 2013 SC 2582 [LNIND",
2013 SC 665] : (2013) 8 SCC 519 [LNIND 2013 SC 665] .,
"173. Pawan Kumar v State of Haryana, AIR 1996 SC 3300 [LNIND 1996 SC 2868] : (1996) 4 SCC",
17 [LNIND 1996 SC 2868] .,
"174. MM Haris v State, 2005 Cr LJ 3314 .",
THE INDIAN PENAL CODE,
"CHAPTER XIV OF OFFENCES AFFECTING THE PUBLIC HEALTH, SAFETY",
"CONVENIENCE, DECENCY AND MORALS",
The following specific instances of nuisance are dealt with in this Chapter:—,
1. Act likely to spread infection (sections 269–271).,
2. Adulteration of food or drink (sections 272–273).,
3. Adulteration of drugs (sections 274–276).,
4. Fouling water of a public spring or reservoir (section 277).,
5. Making atmosphere noxious to health (section 278).,
6. Rash driving or riding (section 279).,
7. Rash navigation (sections 280-282).,
"8. Exhibition of false light, mark or buoy (section 281).",
9. Danger or obstruction in a public way or line of navigation (section 283).,
"10. Negligence in respect of poison (section 284), fire (section 285) or explosive",
substances (section 286).,
"11. Negligence in respect of machinery (section 287), building (section 288) or",
animals (section 289).,
"12. Selling obscene literature and pictures (sections 292, 293) or doing obscene",
acts (section 294).,
13. Keeping a lottery office (section 294A).,
175.[s 294A] Keeping lottery office.,
[Whoever keeps any office or place for the purpose of drawing any lottery 1 176. [not,
"being 177. [a State lottery] or a lottery authorised by the 178. [State] Government], shall",
be punished with imprisonment of either description for a term which may extend to,
"six months, or with fine, or with both.",
"And whoever publishes 2 any proposal to pay any sum, or to deliver any goods, 3 or to",
"do or forbear from doing anything for the benefit of any person, on any event or",
"contingency relative or applicable to the drawing of any ticket, lot, number or figure in",
"any such lottery, shall be punished with fine which may extend to one thousand",
rupees.],
State Amendments,
"Andhra Pradesh.—This amendment was made by A.P. Act No. 16 of 1968, s. 27, (w.e.f. 1-",
2-1969).,
"In its application to the State of Andhra Pradesh, the provisions of section 294-A are",
repealed.,
"Gujarat.— The following amendments were made by Bombay Act No. 82 of 1958, s. 33",
read with Bom.,
"Act No. 11 of 1960, s. 87.",
"In its application to the State of Gujarat, the provisions of section 294A are repealed.",
"Karnataka (Mysore).— The following amendments were made by Mys. Act 27 of 1951, s.",
33.,
"In its application to the whole of the Mysore area except Bellary district, the provisions",
of section 294A are repealed.,
"Maharashtra.— The following amendments were made by Bom. Act No. 82 of 1958, s. 33",
(w.e.f.1-5-1959).,
"In its application to the State of Maharashtra, the provisions of section 294A are",
repealed.,
"Uttar Pradesh.— Section 294A of Indian Penal Code shall be omitted, vide U.P. Act No. 24",
of 1995.,
COMMENT.—,
Lottery stands on the same footing as gambling because both of them are games of,
"chance. The section does not touch authorized lotteries, but intends to save people",
from the effects of those not authorised by prohibiting (1) the keeping of offices or,
"places for drawing them, and (2) the publication of any advertisement relating to them.",
"Bombay Lotteries (Control and Tax) and Prize Competitions (Tax) Act 1958, Bombay",
"Act No. LXXXII of 1958, by section 33 repeals the operation of this section in the State",
of Maharashtra.,
State Governments can authorise lotteries in any way. No procedure is prescribed.179.,
[s 294A.1] Ingredients.—,
This section requires two things—,
1. Keeping of any office or place for the purpose of drawing any lottery.,
2. Such lottery must not be authorized by Government.,
1. 'Drawing any lottery'.—A lottery is a distribution of prizes by lot or chance without the,
use of any skill.180. It makes no difference that the distribution is part of a genuine,
mercantile transaction.181.,
2. 'Publishers'.—This word includes both the persons who sends a proposal as well as,
proprietor of a newspaper who prints the proposal as an advertisement.182. The,
proprietor of a Bombay newspaper who published an advertisement in his paper,
relating to a Melbourne lottery was held to be guilty under this section.183.,
3. 'Goods'.—The term 'goods' includes both movable and immovable property. The,
publication of an advertisement of a lottery by which the lucky winner would get a,
factory for less than its real value is an offence under this section.184.,
[s 294A.2] CASES.—,
Agreement for contributions to be paid by lot is not lottery.— An agreement whereby a,
"number of persons subscribe, each a certain sum, by a periodical instalment, with the",
"object that each in his turn, (to be decided by lot), shall take the whole subscription for",
"each instalment, all such persons being returned the amount of their contributions, the",
"common fund being lent to each subscriber in turn, was held to be not illegal.185.",
[s 294A.3] Prize chit.—,
A prize chit was started with the object of creating a fund for a temple. It consisted of,
"625 subscribers, the monthly subscription being Rs 3. The subscription was to be paid",
"for 50 months. A drawing was to take place every month, one ticket was to be drawn",
out of 625 tickets and the subscriber who drew the ticket was to be paid Rs 150,
without any liability to pay future instalments. That process was to be repeated every,
month till the 50th month. After the 50th month the remaining 575 subscribers were to,
"be each paid in a particular order Rs 150, and the chit fund was to be closed. It was",
held that the chit fund was a lottery.186.,
[s 294A.4] Transaction in which prizes are decided by chance amounts to,
lottery.—,
"It has, been held by the High Court of Kerala that lucky draw prize schemes organised",
by manufacturers as part of promotion of sale of manufactured goods come within the,
"ambit of this section. Government, however, has a discretion to select firms by rotation",
and such a bona fide selection cannot be attacked as discriminatory under Article 14 of,
the Constitution.187.,
"175. Ins. by Act 27 of 1870, section 10.",
"176. Ins. by Act 27 of 1870, section 10.",
"177. Subs. by Act 3 of 1951, section 3 and Sch., for ""a lottery organised by the Central",
"Government or the Government of a Part A State or a Part B State"" (w.e.f. 1-4-1951).",
"178. Subs. by the A.O. 1950, for ""Provincial"".",
"179. Rama Nava Nirman Samithi v State of TN, 1990 Cr LJ 2620 (TN).",
"180. Sesha Ayyar v Krishna Ayyar, (1935) 59 Mad 562 : 566 (FB); Taylor v Smetten, (1883) 11",
"QBD 207 ; Mukandi Lal, (1917) PR No. 35 of 1917.",
"181. GC Chakrabatty, (1915) 9 BLT 124 , 17 Cr LJ 143.",
"182. Mancherji Kavasji, (1885) 10 Bom 97.",
183. Ibid.,
"184. Malla Reddi v State, (1926) 50 Mad 479.",
"185. Vasudevan Namburi v Mammod, (1898) 22 Mad 212.",
"186. Sesha Ayyar v Krishna Ayyar, (1935) 59 Mad 562 (FB).",
"187. Tata Oil Mills Co Ltd, 1982 Cr LJ NOC 171 (Ker).",
THE INDIAN PENAL CODE,
CHAPTER XV OF OFFENCES RELATING TO RELIGION,
The principle on which this chapter has been framed is a principle on which it would be,
"desirable that all governments should act, but from which the Government of India",
"cannot depart without risking the dissolution of society; it is this, that every man should",
be suffered to profess his own religion and that no man should be suffered to insult the,
religion of another.1.,
[s 295] Injuring or defiling place of worship with intent to insult the religion of,
any class.,
"Whoever destroys, damages or defiles 1 any place of worship, or any object2. held",
sacred by any class of persons3. with the intention of thereby insulting the religion of,
any class of persons or with the knowledge that any class of persons is likely to,
"consider such destruction, damage or defilement as an insult to their religion, shall be",
punishble with imprisonment of either description for a term which may extend to two,
"years, or with fine, or with both.",
COMMENT.—,
The object of this section is to punish those persons who intentionally wound the,
religious feelings of others by injuring or defiling a place of worship. This section is,
intended to prevent wanton insult to the religious notions of a class of persons.2,
[s 295.1] Ingredients.—,
This section requires two things—,
"1. Destruction, damage or defilement of (a) any place of worship or (b) any object",
held sacred by a class of persons.,
"2. Such destruction, etc., must have been done (i) with the intention of insulting the",
"religion of a class of persons, or (ii) with the knowledge that a class of persons is",
"likely to consider such destruction, etc., as an insult to their religion.",
1. 'Defiles'.—This word is not to be restricted in meaning to acts that would make an,
"object of worship unclean as a material object, but extends to acts done in relation to",
the object of worship which would render such object ritually impure.3,
2. 'Object'.—The word 'object' does not include animate objects. It refers only to,
"inanimate objects such as churches, mosques, temples, and marble or stone figures",
"representing gods.4. Killing of a cow by a Mohammedan, within the sight of a public",
"road frequented by Hindus, is not punishable under this section.5. Similarly, where a bull",
dedicated and set at large on a ceremonial occasion of Hindus in accordance with a,
religious usage was killed by certain Mohammedans secretly and at night in the,
presence of none but Mohammedans; it was held that no offence was committed.6.,
"Any object, however trivial or destitute of real value in itself, if regarded as sacred by",
any class of persons would come within the meaning of this section nor is it absolutely,
"necessary that the object, in order to be held sacred, should have been actually",
worshipped.7.,
3. 'Class of persons'.—In order that a body of persons may form a class there must be,
a principle of classification.8.,
[s 295.2] CASES.—,
"The damaging or destroying of a sacred thread worn by a person, who is not entitled",
under the Hindu custom to wear it or for whom the wearing of the sacred thread was,
"not part of his ceremonial observance under the Hindu religion, in assertion of a mere",
"claim to higher rank, was held to be not an insult to his religion.9. Where a pastor of the",
church who himself was a Christian was running a nursery school and a charitable,
"dispensary in a portion of the Church, it could not be said that by using a portion of the",
Church property for such secular and non-religious purposes he was insulting the,
"religion of a class of persons within the meaning of section 295, Indian Penal Code,",
"1860 (IPC, 1860).10.",
"1. The Works of Lord Macaulay, Notes on the chapter of offences relating to religion and caste.",
Note j.,
"2. Gopinath v Ramchandra, (1958) Cut 485.",
"3. Sivakoti Swami, (1885) 1 Weir 253.",
"4. Imam Ali v State, (1887) 10 All 150 (FB); Romesh Chunder Sannyal v Hiru Mondal, (1890) 17",
Cal 852 .,
"5. Imam Ali, sup; Ali Muhammad, (1917) PR No. 10 of 1918 (FB).",
"6. Romesh Chunder Sannyal v Hiru Mondal, supra.",
"7. Veerabadran v Ramaswami, AIR 1958 SC 1032 [LNIND 1958 SC 95] : 1958 Cr LJ 1565 . See",
"also Zac Poonen v Hidden Treasure Literature Incorporated In Canada, 2002 Cr LJ 481 (Kant).",
"8. Benarashi Lal, (1956) 98 CLJ 139.",
"9. Sheo Shankar, (1940) 15 Luck 696 .",
"10. DP Titus v LW Lyall, 1981 Cr LJ 68 (All).",
THE INDIAN PENAL CODE,
CHAPTER XV OF OFFENCES RELATING TO RELIGION,
The principle on which this chapter has been framed is a principle on which it would be,
"desirable that all governments should act, but from which the Government of India",
"cannot depart without risking the dissolution of society; it is this, that every man should",
be suffered to profess his own religion and that no man should be suffered to insult the,
religion of another.1.,
11.[s 295A] Deliberate and malicious acts intended to outrage religious,
"feelings of any class, by insulting its religion or religious beliefs.",
"[Whoever, with deliberate and malicious intention of outraging the religious feelings of",
"any class of 12.[citizens of India], 13.[by words, either spoken or written, or by signs or",
"by visible representations or otherwise], insults or attempts to insult the religion or",
"the religious beliefs of that class, shall be punished with imprisonment of either",
"description for a term which may extend to 14.[three years], or with fine, or with both.]",
State Amendment,
"Andhra Pradesh.—In Andhra Pradesh the offence is cognizable vide A.P. G.O. Ms. No. 732,",
dated 5 December 1991.,
COMMENT.—,
"This section was brought into IPC, 1860 by the Criminal Law Amendment Act, 1927 (25",
of 1927) following the wide spread agitations erupting from the decision in Rajpaul v,
"Emperor,15. commonly called as ""Rangila Rasul's case"", rendered by the Lahore High",
"Court. Interpreting section 153A of IPC, 1860, which alone was there in the Statute",
"then, it was held that no offence would lie thereunder however indecent be the",
comments made against a deceased religious leader. In fact a few months before,
"Rangila Rasul's case was decided by the Lahore High Court, a totally dissenting view",
"over the application of section 153A of IPC, 1860 had been rendered by the Allahabad",
"High Court in Kali Charan Sharma v Emperor,16. holding that scurrilous and bad taste",
remarks against a religion or its founder promoting ill feelings between sects of,
"different faith could be proceeded under section 153A of IPC, 1860. It was at that",
stage; the Legislature stepped in and brought in a new penal provision under section,
"295A in IPC, 1860. Section 295A of IPC, 1860 does not penalise every act of insult but",
"penalises only deliberate acts of insult, so that even if by any expression insult is in fact",
"caused, that expression is not an offence if the insult offered is unwilling or",
"unintended.17. In order to attract the mischief of the provision of section 295A, the",
"following ingredients are to be satisfied, viz., a person (1) by written words (2) with",
deliberate and malicious intention (3) of outraging the religious feelings (4) of any,
"class of citizens of India, (5) insults or attempts to insult the religion or the religious",
"beliefs of that class. In other words, (1) the intention has to be deliberate and malicious",
both and (2) for outraging the religious feelings (3) of a class of citizens of India (4) in,
"order to insult or attempt to insult the religious or religious belief of that class, i.e., in",
India (5) by written words.18. Insults to religion offered unwittingly or carelessly or,
without any deliberate or malicious intention to outrage the religious feelings of that,
class do not come within the section. It only punishes the aggravated form of insult to,
religion when it is perpetrated with the deliberate and malicious intention of outraging,
the religious feelings of that class.19.,
The essence of the offence under this section is that the insult to religion or the,
"outrage to religious feelings must be the sole, or primary, or at least the deliberate and",
conscious intention. In order to bring the case within this section it is not so much the,
matter of discourse as the manner of it. The words used should be such as are bound,
to be regarded by any reasonable man as grossly offensive and provocative and,
maliciously and deliberately intended to outrage the feeling of any class of citizens of,
India. It is no defence to a charge under this section for anyone to plead that he was,
writing a book in reply to the one written by one professing another religion who has,
attacked his own religion.20. In order to establish malice as contemplated by this,
"section, it is not necessary for the prosecution to prove that, the applicant bore ill will or",
enmity against specific persons. If the injurious act was done voluntarily without a,
"lawful excuse, malice may be presumed.21. Malice is often not capable of direct and",
tangible proof and in almost all cases has to be inferred from the surrounding,
"circumstances having regard to the setting, background and connected facts in relation",
to the offending article.22. The truth of the allegation is not a good defence to a charge,
under this section.23.,
"The Supreme Court, while quashing a complaint observed that section 295A does not",
stipulate everything to be penalised and any and every act would tantamount to insult,
or attempt to insult the religion or the religious beliefs of class of citizens. It penalises,
only those acts of insults to or those varieties of attempts to insult the religion or,
religious belief of a class of citizens which are perpetrated with the deliberate and,
malicious intention of outraging the religious feelings of that class of citizens. Insults,
to religion offered unwittingly or carelessly or without any deliberate or malicious,
intention to outrage the religious feelings of that class do not come within the section.,
Further the said provision only punishes the aggravated form of insult to religion when,
it is perpetrated with the deliberate and malicious intention of outraging the religious,
feelings of that class.24.,
[s 295A.1] Constitutional validity.—,
This section is well within the protection of clause (2) of Article 19 of the Constitution,
"and its validity neither is beyond question,25. nor is it inconsistent with the right",
guaranteed by Article 25(1) of the Constitution.26.,
Where the arrangement of the scenes and the script of the drama outraged the,
"religious feelings of the Christian community, an offence under this section was held to",
have been committed irrespective of the fact whether the beliefs which were made the,
subject-matter of the attack were rational or irrational. An attack on even an incredible,
belief may be capable of causing hurt to feelings.27. Where the articles published by,
the accused highlighted the ideological differences that existed between the members,
"of a Christian group and the members of the Christian fellowship centre, it was held",
that an expression of opinion by a person who is having a different religious belief did,
not amount to defamation.28. An offence under this section has been made a,
"cognizable and non-bailable one under new Code of Criminal Procedure, 1973 (Cr PC,",
1973).,
[s 295A.2] Sanction.—,
No Court can take cognizance of an offence under this section except with the,
"previous sanction of the concerned Government under section 196(1), Cr PC, 1973.29.",
In the matter of the publication of a book outraging the religious feelings of a section of,
"the society, a Notification was issued directing forfeiture of the book under section 95,",
"Cr PC, 1973. It was held that the order contained in the Notification was not violative of",
Article 19(1)(a) or 19(1)(g) of the Constitution.30.,
[s 295A.3] CASES.—,
It is well settled that the offending publication has to be viewed as a whole and the,
malicious intent of the author has to be gathered from a broader perspective and not,
merely from a few solitary lines or quotations.31. The same view of the law was taken,
"in Chandanmal's case by the High Court of Calcutta to say that section 295A, IPC, 1860,",
does not punish every act of insult to religion. It punishes only aggravated acts of,
"insult, etc., which are deliberate and malicious. And in judging if a publication falls",
within the mischief of this section the publication has to be judged as a whole.,
"""Isolated passages picked out from here and there and read out of context cannot",
"change the position"".32.",
A petition was filed to protest against the practice of printing and pasting photographs,
of Gods and Goddesses of Hindu religion on fire crackers. The practice in question had,
been going on since long without any objections. The Court viewed it as a whimsical,
petition and dismissed it.33.,
"In this connection see also sub-para entitled ""Cases"" under section 153A ante.",
"1. The Works of Lord Macaulay, Notes on the chapter of offences relating to religion and caste.",
Note j.,
"11. Ins. by Act 25 of 1927, section 2.",
"12. Subs. by the A.O. 1950, for ""His Majesty's subjects"".",
"13. Subs. by Act 41 of 1961, section 3, for ""by words, either written or spoken, or by",
"visiblerepresentations"" (w.e.f. 12-9-1961).",
"14. Subs. by Act 41 of 1961, section 3, for ""two years"" (w.e.f. 12-9-1961)",
"15. Rajpaul v Emperor, AIR 1927 Lahore 590 .",
"16. Kali Charan Sharma v Emperor, AIR 1927 Allahabad 649 .",
"17. Jayamala v State, 2013 Cr LJ 622 .",
"18. Sujato Bhadra v State of WB, 2006 Cr LJ 368 (Cal).",
"19. R V Bhasin v State of Maharashtra, 2012 Cr LJ 1375 (Bom) (FB); Ramji Lal Modi, AIR 1957 SC",
620 [LNIND 1957 SC 36] : (1957) SCR 860 [LNIND 1957 SC 36] .,
"20. Shiv Ram Dass v Udasi Chakarvarti, (1954) Pun 1020 (FB).",
"21. Khalil Ahamad, AIR 1960 All 715 [LNIND 1960 ALL 96] (SB). Trustees of Safdar Hashmi",
"Memorial Trust v Govt. of NCT of Delhi, 2001 Cr LJ 3689 (Del), the basic requirement of the",
section is that of deliberate and malicious act. Malice is a negation of bona fides and one who,
alleges it has to prove it.,
"22. Sujato Bhadra v State of WB, 2005 Cr LJ 368 (Cal): 2005 (4) CHN 601 [LNIND 2005 CAL 620]",
"The Trustees of Safdar Hashmi Memorial Trust v Govt. of NCT of Delhi, 2001 Cr LJ 3869 (Del)",
(FB).,
"23. Henry Rodrigues, (1962) 2 Cr LJ 564 .",
"24. Mahendra Singh Dhoni v Yerraguntla Shyamsundar, AIR 2017 SC 2392 [LNIND 2017 SC 217] :",
2017 (2) RCR (Criminal) 746 : 2017 (5) Scale 83 .,
"25. Ramji Lal Modi, (1957) SCR 860 [LNIND 1957 SC 36] .",
"26. Henry Rodrigues, supra.",
"27. T Parameswaran v Distt. Collector, AIR 1988 Ker 175 [LNIND 1987 KER 607] .",
"28. Zac Poonen v Hidden Treasure Literature Incorporated in Canada, 2002 Cr LJ 481 (Kant).",
"29. Shalibhadra Shah, 1981 Cr LJ 113 (Guj). Acharya Rajneesh v Naval Thakur, 1990 Cr LJ 2511",
"(HP). Manoj Rai v State of MP, AIR 1999 SC 300 : 1999 Cr LJ 470 , proceedings quashed",
because of no sanction.,
"30. Baragur Ramchandrappa v State of Karnataka, 1998 Cr LJ 3639 (Kant—FB).",
"31. Nand Kishore Singh, 1985 Cr LJ 797 (Pat—SB).",
"32. Chandanmal Chopra, 1986 Cr LJ 182 (Cal).",
"33. Bhau v State of Maharashtra, 1999 Cr LJ 1230 (Bom).",
THE INDIAN PENAL CODE,
CHAPTER XV OF OFFENCES RELATING TO RELIGION,
The principle on which this chapter has been framed is a principle on which it would be,
"desirable that all governments should act, but from which the Government of India",
"cannot depart without risking the dissolution of society; it is this, that every man should",
be suffered to profess his own religion and that no man should be suffered to insult the,
religion of another.1.,
[s 296] Disturbing religious assembly.,
Whoever voluntarily causes disturbance to any assembly lawfully engaged in the,
"performance of religious worship, or religious ceremonies, shall be punished with",
"imprisonment of either description for a term which may extend to one year, or with",
"fine, or with both.",
COMMENT.—,
"Assemblies held for religious worship, or for the performance of religious ceremonies,",
are hereby protected from intentional disturbance.,
The object of this section is to secure freedom from molestation when people meet for,
"the performance of acts in a quiet spot vested for the time in the assembly exclusively,",
"and not when they engage in worship in an unquiet place, open to all the public as a",
thoroughfare.34.,
[s 296.1] Ingredients.—,
To constitute an offence under this section—,
(1) There must be a voluntary disturbance caused.,
(2) The disturbance must be caused to an assembly engaged in religious worship,
or religious ceremonies.,
"(3) The assembly must be lawfully engaged in such worship or ceremonies, i.e., it",
must be doing what it has a right to do.,
[s 296.2] CASES.—Disturbance caused by saying 'amin'.—,
A mosque is a place where all sects of Mohammedans are entitled to go and perform,
"their devotion as of right, according to their conscience; and a Mohammedan of one",
"sect pronouncing the word ""amin"" loudly, in the honest exercise of conscience,",
"commits no offence or civil wrong,35. though he may by such conduct cause",
annoyance in the mosque to other worshippers of another sect who do not pronounce,
"that word loudly.36. But any person, Mohammedan or not, who goes into a mosque not",
"bona fide for a religious purpose, but mala fide, for the purpose of disturbing others",
"engaged in their devotions, will render himself criminally liable.37.",
[s 296.3] Religious procession.—,
Persons of every sect are entitled to take out religious processions with music through,
public streets provided that they do not interfere with the ordinary use of the streets by,
the public or contravene any traffic regulation or lawful directions issued by the,
Magistrate. A religious procession does not change its character merely because the,
music is temporarily stopped in front of a mosque.38.,
"1. The Works of Lord Macaulay, Notes on the chapter of offences relating to religion and caste.",
Note j.,
"34. Vijiaraghava Chariar, (1903) 26 Mad 554, 574 (FB).",
"35. Ata-Ullah v Azim-Ullah, (1889) 12 All 494 (FB).",
"36. Jangu v Ahmadullah, (1889) 13 All 419 (FB).",
37. Ibid.,
"38. Mohamud khan, (1948) Nag 657.",
THE INDIAN PENAL CODE,
CHAPTER XV OF OFFENCES RELATING TO RELIGION,
The principle on which this chapter has been framed is a principle on which it would be,
"desirable that all governments should act, but from which the Government of India",
"cannot depart without risking the dissolution of society; it is this, that every man should",
be suffered to profess his own religion and that no man should be suffered to insult the,
religion of another.1.,
"[s 297] Trespassing on burial places, etc.",
"Whoever, with the intention of wounding the feelings of any person, or of insulting the",
"religion of any person, or with the knowledge that the feelings of any person are likely",
"to be wounded, or that the religion of any person is likely to be insulted thereby,",
"commits any trespass in any place of worship 1 or on any place of sepulchre, or any",
place set apart from the performance of funeral rites 2 or as a depository for the,
"remains of the dead, or offers any indignity to any human corpse, 3 or causes",
"disturbance to any persons assembled for the performance of funeral ceremonies,",
shall be punished with imprisonment of either description for a term which may,
"extend to one year, or with fine, or with both.",
COMMENT.—,
This section deals more especially with trespasses on places of sepulchre and places,
set apart for the performance of funeral rites and as depositories for the remains of the,
dead. It extends the principle laid down in section 295 to places which are treated as,
"sacred. The essence of the section is an intention, or knowledge of likelihood, to wound",
feelings or insult religion and when with that intention or knowledge trespass on a,
"place of sepulchre, indignity to a corpse, or disturbance to persons assembled for",
"funeral ceremonies is committed, the offence is complete.39.",
1. 'Trespass in any place of worship'.—'Trespass' here implies not only criminal,
"trespass but also an ordinary act of trespass, i.e., an entry on another's land without",
lawful authority with the intention specified in section 441.40. The term 'trespass',
"means any violent or injurious act, committed in such place and with such knowledge",
or intention as is defined in this section.41.,
The trespass must be in a place of worship with the knowledge that the religious,
feelings of persons would be wounded thereby. Where some persons had sexual,
"connection inside a mosque, it was held that they were guilty of an offence under this",
section.42.,
2. 'Funeral rites'.—The section contemplates disturbance of persons engaged in,
performing funeral ceremonies. But a moharram procession is not a funeral ceremony,
within the meaning of this section.43. Obstruction to the performance of obsequies,
comes under this section.44.,
3. Indignity to corpse.—What is indignity to corpse is not defined anywhere. Indignity is,
generally synonymous to humiliation or disgrace. A conduct to be criminal in the sense,
"of section 297, IPC, 1860 should be spiteful to become humiliating or disgraceful. In a",
"particular situation, an act may not cause disgrace or may not humiliate, but, in other",
situations that very act may cause disgrace or humiliation. So the intentions of the,
person concerned as well as surrounding circumstances are important factors.45.,
"1. The Works of Lord Macaulay, Notes on the chapter of offences relating to religion and caste.",
Note j.,
"39. Burhan Shah, (1887) PR No. 26 of 1887.",
"40. Subhan, (1896) 18 All 395 ; Jhulan Saib, (1913) 40 Cal 548 ; Ratna Mudali, (1886) 10 Mad",
"126; Umar Din, (1915) PR No. 23 of 1915.",
"41. Mustan, (1923) 1 Ran 690; Sanoo v State, (1941) Kant 316.",
"42. Maqsud Husain, (1923) 45 All 529 .",
"43. Ghosita v Kalka, (1885) 5 AWN 49.",
"44. Subramania v Venkata, (1883) 6 Mad 254 : 257. Sudarshan Kumar v Gangacharan Dubey,",
"2000 Cr LJ 1618 (MP), killing of a criminal in police encounter. His body was roped to a tower",
for a few minutes in order to show to the public the results of a life in crime. This being not an,
"indignity to the body, no offence under the section was made out.",
"45. Surdarshan Kumar v Gangacharan Dubey, 1999 Cr LJ 1618 (MP).",
THE INDIAN PENAL CODE,
CHAPTER XV OF OFFENCES RELATING TO RELIGION,
The principle on which this chapter has been framed is a principle on which it would be,
"desirable that all governments should act, but from which the Government of India",
"cannot depart without risking the dissolution of society; it is this, that every man should",
be suffered to profess his own religion and that no man should be suffered to insult the,
religion of another.1.,
"[s 298] Uttering words, etc., with deliberate intent to wound religious feelings.",
"Whoever, with the deliberate intention of wounding the religious feelings of any",
"person, utters any word or makes any sound in the hearing of that person or makes",
"any gesture in the sight of that person or places any object in the sight of that person,",
shall be punished with imprisonment of either description for a term which may,
"extend to one year, or with fine, or with both.",
State Amendment,
Andhra Pradesh.— In Andhra Pradesh the offence is cognizable vide A.P. G.O. Ms. No.,
"732, dated 5-12-1991.",
COMMENT.—,
"The authors of the Code observe: ""In framing this clause we had two objects in view:",
"we wish to allow all fair latitude to religious discussion, and at the same time to prevent",
"the professors of any religion from offering, under the pretext of such discussion,",
intentional insults to what is held sacred by others. We do not conceive that any person,
can be justified in wounding with deliberate intention the religious feelings of his,
"neighbours by words, gestures or exhibitions. A warm expression dropped in the heat",
"of controversy, or an argument urged by a person, not for the purpose of insulting and",
"annoying the professors of a different creed, but in good faith for the purpose of",
"vindicating his own will not fall under the definition contained in this clause.""46. This",
section does not apply to a written article.47.,
This section can be made cognizable by the State Government by a notification in the,
"official Gazette under section 10 of the Criminal Law Amendment Act, 1932.",
The malicious intention should either be shown to exist or should be apparent from the,
nature of the act alleged to constitute an offense.48.,
[s 298.1] CASES.—,
Interpolation of forbidden chant.— Interpolation of a forbidden chant in an authorised,
ritual is an offence under this section.49.,
[s 298.2] Exhibiting cow's flesh.—,
Exhibiting cow's flesh by carrying it in an uncovered state round a village with the,
deliberate intention of wounding the religious feelings of Hindus was held to be an,
offence under this section.50.,
[s 298.3] Killing of cow.—,
"Where on the occasion of Bakr-i-Id, the accused killed a cow at dawn in a semi-private",
place and the killing was seen by some Hindus walking along the village pathway 50,
"feet away, it was held that no offence under this section was committed.51. The",
sacrifice of a cow on the Bakr-i-Id day is not an obligatory religious act for a Muslim,
and the protection of Article 25 of the Constitution cannot be claimed for such an,
act.52.,
"1. The Works of Lord Macaulay, Notes on the chapter of offences relating to religion and caste.",
Note j.,
"46. The Works of Lord Macaulay, Notes on the chapter of offences relating to religion and",
caste. Note j.,
"47. Shalibhadra Shah, 1981 Cr LJ 113 (Guj).",
"48. Mudassir Ullah Khan v State of UP, 2013 (81) ALLCC 152 : 2013 Cr LJ 3741.",
"49. Narasimha v Shree Krishna, (1892) 2 Mad Jur 236.",
"50. Rahman v State, (1893) 13 AWN 144.",
"51. Sheikh Amjad v State, (1942) 21 Pat 315.",
"52. Kitab Ali v Santi Ranjan, AIR 1965 Tripura 22 .",
THE INDIAN PENAL CODE,
CHAPTER XVI OF OFFENCES AFFECTING THE HUMAN BODY OF,
OFFENCES AFFECTING LIFE,
[s 299] Culpable homicide.,
"Whoever causes death by doing an act with the intention of causing death, or with the",
"intention of causing such bodily injury as is likely to cause death, or with the",
"knowledge that he is likely by such act to cause death, commits the offence of",
culpable homicide.,
ILLUSTRATIONS,
"(a) A lays sticks and turf over a pit, with the intention of thereby causing death, or",
with the knowledge that death is likely to be thereby caused. Z believing the,
"ground to be firm, treads on it, falls in and is killed. A has committed the offence",
of culpable homicide.,
"(b) A knows Z to be behind a bush. B does not know it. A, intending to cause, or",
"knowing it to be likely to cause Z's death, induces B to fire at the bush. B fires",
and kills Z. Here B may be guilty of no offence; but A has committed the offence,
of culpable homicide.,
"(c) A, by shooting at a fowl with intent to kill and steal it, kills B, who is behind a",
"bush; A not knowing that he was there. Here, although A was doing an unlawful",
"act, he was not guilty of culpable homicide, as he did not intend to kill B, or to",
cause death by doing an act that he knew was likely to cause death.,
Explanation 1.—A person who causes bodily injury to another who is labouring,
"under a disorder, disease or bodily infirmity, and thereby accelerates the death",
"of that other, shall be deemed to have caused his death.",
"Explanation 2.—Where death is caused by bodily injury, the person who causes",
"such bodily injury shall be deemed to have caused the death, although by",
resorting to proper remedies and skilful treatment the death might have been,
prevented.,
Explanation 3.—The causing of the death of child in the mother's womb is not,
homicide. But it may amount to culpable homicide to cause the death of a,
"living child, if any part of that child has been brought forth, though the child",
may not have breathed or been completely born.,
COMMENT.—,
"Homicide is the killing of a human being by a human being. It is either (A) lawful, or (B)",
unlawful.,
"(A) Lawful homicide, or simple homicide, includes several cases falling under the",
General Exceptions (Chapter IV).,
(B) Unlawful homicide includes—,
(1) Culpable homicide not amounting to murder (section 299).,
(2) Murder (section 300).,
(3) Rash or negligent homicide (section 304A).,
"(4) Suicide (sections 305, 306).",
(A) Lawful or simple homicide.—This is committed where death is caused in one of the,
following ways:—,
"1. Where death is caused by accident or misfortune, and without any criminal",
"intention or knowledge in the doing of a lawful act, in a lawful manner, by lawful",
"means, and with proper care and caution (section 80).",
"2. Where death is caused justifiably, that is to say,",
"(i) By a person, who is bound, or by mistake of fact in good faith believes",
"himself bound, by law (section 76).",
"(ii) By a Judge when acting judicially in the exercise of any power which is, or",
"which in good faith he believes to be, given to him by law (section 77).",
(iii) By a person acting in pursuance of the judgment or order of a Court of,
Justice (section 78).,
"(iv) By a person who is justified or who by reason of a mistake of fact, in good",
"faith, believes himself to be justified by law (section 79).",
(v) By a person acting without any criminal intention to cause harm and in,
"good faith, for the purpose of preventing or avoiding other harm to person",
or property (section 81).,
(vi) Where death is caused in the exercise of the right of private defence of,
"person or property (sections 100, 103).",
"3. Where death is caused by a child, or a person of unsound mind, or an intoxicated",
"person as will come under sections 82, 83, 84 and 85.",
4. Where death is caused unintentionally by an act done in good faith for the benefit,
"of the person killed, when—",
"(i) he or, if a minor or lunatic, his guardian, has expressly or impliedly",
"consented to such an act (sections 87, 88); or",
(ii) where it is impossible for the person killed to signify his consent or where,
"he is incapable of giving consent, and has no guardian from whom it is",
"possible to obtain consent, in time for the thing to be done with benefit",
(section 92).,
(B) Unlawful homicide.—Culpable homicide is the first kind of unlawful homicide. It is,
the causing of death by doing:,
(i) an act with the intention of causing death;,
(ii) an act with the intention of causing such bodily injury as is likely to cause death;,
or,
(iii) an act with the knowledge that it was likely to cause death.,
"Without one or other of those elements, an act, though it may be in its nature criminal",
"and may occasion death, will not amount to the offence of culpable homicide.1.",
Culpable homicide may be classified in three categories—(1) in which death is caused,
by the doing of an act with the intention of causing death; (2) when it is committed by,
causing death with the intention of causing such bodily injury as is likely to cause,
death; and (3) where the death is caused by an act done with the knowledge that such,
act is likely to cause death. Knowledge and intention should not be confused. Section,
299 in defining first two categories does not deal with the knowledge whereas it does,
in relation to the third category. It would also be relevant to bear in mind the import of,
"the terms ""likely by such act to cause death"". Herein again lies a distinction as ""likely""",
"would mean probably and not possibly. When an intended injury is likely to cause death,",
the same would mean an injury which is sufficient in the ordinary course of nature to,
cause death which in turn would mean that death will be the most probable result.2.,
[s 299.1] Ingredients.—,
The section has the following essentials:,
1. Causing of death of a human being.,
2. Such death must have been caused by doing an act,
(i) with the intention of causing death; or,
(ii) with the intention of causing such bodily injury as is likely to cause death;,
or,
(iii) with the knowledge that the doer is likely by such act to cause death.,
The fact that the death of a human being is caused is not enough. Unless one of the,
"mental states mentioned in ingredient3. is present, an act causing death cannot",
amount to culpable homicide.,
[s 299.2] 'Causes death'.—,
Death means the death of a human being (section 46). But this word does not include,
the death of an unborn child (vide Explanation 3). It is immaterial if the person whose,
death has been caused is not the very person whom the accused intended to kill: see,
Illustration (a) and section 301.4. The offence is complete as soon as any person is,
killed. Death occurs when brain dies completely. A person cannot be said dead if some,
brain activity is present.5.,
[s 299.3] Five-step enquiry.—,
"According to the Supreme Court, in case where death is alleged to have been caused",
"by a person, there shall be a five-step inquiry:",
"(i) Is there a homicide? (ii) If yes, is it a culpable homicide or a 'not culpable homicide'? (iii) If",
"it is a culpable homicide, is the offence one of culpable homicide amounting to murder (s.",
300 of the Indian Penal Code) or is it a culpable homicide not amounting to murder (s. 304,
of the Indian Penal Code)? (iv) If it is a 'not culpable homicide' then a case u/s. 304-A of the,
Indian Penal Code is made out. (v) If it is not possible to identify the person who has,
"committed the homicide, the provisions of s. 72 of the Indian Penal Code may be invoked.6.",
[s 299.4] 'By doing an act with the intention of causing death'.—,
None of the endless variety of modes by which human life may be cut short before it,
"becomes in the course of nature extinct, is excluded. Death may be caused by",
"poisoning, starving, striking, drowning, and by a hundred different ways.",
"Under section 32, words which refer to acts done extend also to illegal omissions, and",
"the word ""illegal"" is applicable to everything which is an offence or which is prohibited",
"by law, or which furnishes ground for a civil action (section 43). Therefore, death",
caused by illegal omission will amount to culpable homicide.7.,
[s 299.5] Need for viscera report.—,
"Having noticed that, in several cases, where poisoning is suspected, the prosecuting",
"agencies are not taking steps to obtain viscera report, the Supreme Court, in Joshinder",
Yadav v State of Bihar8. issued certain directions in this behalf. It was held:,
"We direct that in cases where poisoning is suspected, immediately after the post-",
"mortem, the viscera should be sent to the FSL. The prosecuting agencies should ensure",
"that the viscera is, in fact, sent to the FSL for examination and the FSL should ensure",
that the viscera is examined immediately and report is sent to the investigating,
"agencies/Courts post-haste. If the viscera report is not received, the concerned Court",
must ask for explanation and must summon the concerned officer of the FSL to give an,
explanation as to why the viscera report is not forwarded to the investigating,
agency/Court. The criminal Court must ensure that it is brought on record.,
[s 299.6] Death caused by effect of words on imagination or passions.,
"This may sometimes require a complete study of the person of the deceased, her",
"psychology, nature and disposition. Going by these considerations in a case before it,",
the Supreme Court came to the conclusion that the death of the young married woman,
in her matrimonial home was a case of suicide and not that of murder. A letter of hers,
sensing some foul play against her was neither sufficient for conviction for murder nor,
to dispel the presumption of suicide generated by the type of person she was and her,
mental make-up.9.,
[s 299.7] 'With the intention of causing such bodily injury as is likely to cause,
death'.—,
The connection between the 'act' and the death caused thereby must be direct and,
"distinct; and though not immediate, it must not be too remote.10. Where bodily injury",
"sufficient to cause death is actually caused, it is immaterial to go into the question as",
to whether the accused had intention to cause death or knowledge that the act will,
"cause death.11. In finding out whether there was the requisite intention or not, the Court",
"has not to go merely by the part of the body where the blow fell, but also the",
circumstances and the background of the offence and also the ferocity of the attack.,
[s 299.8] 'With the knowledge that he is likely by such act to cause death'.—,
'Knowledge' is a strong word and imports a certainty and not merely a probability.12.,
[s 299.9] Beating for exorcising evil spirit.—,
"Where the accused, in exorcising the spirit of a girl whom they believed to be",
"possessed, subjected her to a beating which resulted in her death, it was held that they",
were guilty of culpable homicide.13.,
[s 299.10] Clauses 1 and 2.—'Intention of causing such bodily injury as is likely,
to cause death'.—'Knowledge that he is likely by such act to cause death'.—,
The practical difference between these two phrases is expressed in the punishment,
provided in section 304. But the phrase 'with the knowledge that he is likely by such act,
"to cause death' includes all cases of rash acts by which death is caused, for rashness",
imports a knowledge of the likely result of an act which the actor does in spite of the,
risk.,
"Both the expressions ""intent"" and ""knowledge"" occurring in section 299 postulate",
"existence of a positive mental attitude which is of different degrees. Further, such",
mental attitude towards consequences of conduct is one of intention and knowledge. If,
"death is caused in any of the circumstances envisaged in section 299, offence of",
culpable homicide is said to have been committed.14.,
[s 299.11] Distinction between knowledge and intention.—,
Knowledge denotes a bare state of conscious awareness of certain facts in which the,
human mind might itself remain supine or inactive whereas intention connotes a,
conscious state in which mental faculties are roused into activity and summed up into,
action for the deliberate purpose of being directed towards a particular and specific,
end which the human mind conceives and perceives before itself. Intention need not,
necessarily involve premeditation. Whether there is such an intention or not is a,
question of fact.15.,
[s 299.12] Death caused without 'requisite intention' or 'knowledge' not,
culpable homicide.—,
"If the death is caused under circumstances specified in section 80, the person causing",
"the death will be exonerated under that section. But, if it is caused in doing an unlawful",
"act, the question arises whether he should be punished for causing it. The Code says",
that when a person engaged in the commission of an offence causes death by pure,
"accident, he shall suffer only the punishment of his offence, without any addition on",
account of such accidental death. See Illustration (c) to this section. The offence of,
"culpable homicide supposes an intention, or knowledge of likelihood of causing death.",
"In the absence of such intention or knowledge, the offence committed may be grievous",
"hurt,16. or simple hurt.17. It is only where death is attributed to an injury which the",
offender did not know would endanger life or would be likely to cause death and which,
"in normal conditions would not do so notwithstanding death being caused, that the",
offence will not be culpable homicide but grievous or simple hurt. Every such case,
depends upon the existence of abnormal conditions unknown to the person who,
inflicts the injury.18. A person who voluntarily inflicts injury such as to endanger life,
"must always, except in the most extraordinary and exceptional circumstances, be taken",
"to know that he is likely to cause death. If the victim is actually killed, the conviction in",
such cases ought ordinarily to be of the offence of culpable homicide.19. Once it is,
established that an act was a deliberate act and was not the result of accident or,
"rashness or negligence, it is obvious that the offence would be culpable homicide.20.",
[s 299.13] Death due to diseased spleen.—,
"Where the accused gave a blow with a light bamboo stick, not more than an inch in",
"diameter, to the deceased who was suffering from diseased spleen on the region of",
"that organ, it was held that he was guilty of causing grievous hurt.21.",
[s 299.14] CASES.—Knowledge of probable consequence of act.—Beating.—,
"Where a person struck with a heavy stick and killed a man, being at the time under the",
bona fide belief that the object at which he struck was not a human being but,
"something supernatural, but through terror, having taken no steps to satisfy himself",
"that it was not a human being, he was held to have committed culpable homicide.22.",
[s 299.15] Explanation 1.—,
"A person causing bodily injury to another who is labouring under a disorder, disease, or",
"bodily infirmity, and thereby accelerating the death of that other, is deemed to have",
'caused his death'. But one of the elements of the offence of culpable homicide must,
be present.23.,
[s 299.16] Explanation 2.—'By resorting to proper remedies death might have,
been prevented'.—,
This Explanation is explicit and gives no room for discussion. The reason for this,
provision is obvious that it is not always that proper remedies and skilful treatment are,
within the reach of a wounded man.24.,
Although proof be given that the wound or other bodily injury if skilfully treated might not,
"have resulted in death, yet, if in fact death is the result, the wound 'causes' death. And it",
does not avail the offender to prove that the first cause might have been removed or,
rendered inoperative by the application of proper remedies and that death might have been,
prevented. 'Proper remedies and skilful treatment' may not be within the reach of the,
"wounded man; or if they are at hand, he may be unable or unwilling to resort to them. But",
this is immaterial so far as it relates to the due interpretation of the words 'cause of death'.,
"The primary cause which sets in motion some other cause,—as the severe wound which",
"induces gangrene or fever, and the ultimate effect, death, are sufficiently connected as",
"cause and effect, notwithstanding that the supervening sickness or disease might have",
been cured by medical skill. All that it is essential to establish is that the death has been,
"caused by the bodily injury and, if there be any intervening cause, that it is connected with a",
sufficient degree of probability with the primary one.25.,
"If death results from an injury voluntarily caused, the person who causes that injury is",
deemed to have caused death although the life of the victim might have been saved if,
"proper medical attention had been given, and even if medical treatment was given but",
"was not the proper treatment, provided that it was administered in good faith by a",
competent physician or surgeon.26.,
[s 299.17] CASES.—,
Where the deceased did not actually die from the injuries but died from the gangrene,
"which set in inconsequence of some dirty substance, such as a bandage or the da with",
"which the injuries were caused, coming into contact with one injury, although the",
"injuries were not the direct cause of death, the person causing the injuries was held to",
have caused death.27. Where the facts were that the acts of the accused were in the,
category of a rash act which brought about dashing against the victim leading to his,
death. There appeared to be no intention or knowledge of bringing about a fatal,
consequence. The liability was under section 304A.28.,
[s 299.18] Explanation 3.—,
The causing of death of a child in the mother's womb is not homicide; such an offence,
"is punishable under section 315. But it is homicide to cause the death of a living child,",
"if any part of that child has been brought forth, though the child may not have breathed",
"or been completely born. The former Chief Court of Punjab has observed that ""if it is",
"not homicide to kill a child in its mother's womb, it can hardly be urged that it is",
homicide to kill a child that has breathed in the womb and died while yet in the womb,
"and has been brought forth still-born"".29.",
[s 299.19] Applicability of section 299 whether conviction under section 304,
Part I or Part II.—,
"A plain reading of section 299 will show that it contains three clauses, in two clauses it",
is the intention of the offender which is relevant and is the dominant factor and in the,
third clause it is the knowledge of the offender which is relevant and is the dominant,
"factor. Analysing section 299 as aforesaid, it becomes clear that a person commits",
culpable homicide if the act by which the death is caused is done.,
"""(i) with the intention of causing death; or",
(ii) with the intention of causing such bodily injury as is likely to cause death; or,
"(iii) with the knowledge that the act is likely to cause death.""",
"If the offence is such which is covered by any one of the clauses, but does not fall",
"within the ambit of clauses, Firstly–Fourthly of section 300 IPC, 1860, it will not be",
murder and the offender would not be liable to be convicted under section 302. In such,
"a case, if the offence is such which is covered by clause (i) or (ii), the offender would be",
"liable to be convicted under section 304 Part I IPC, 1860 as it uses the expression ""if",
"the act by which the death is caused is done with the intention of causing death, or of",
"causing such bodily injury as is likely to cause death"" where intention is the dominant",
"factor. However, if the offence is such which is covered by clause (iii), the offender",
"would be liable to be convicted under section 304, Part II, IPC, 1860 because of the use",
"of the expression ""if the act is done with the knowledge that it is likely to cause death,",
"but without any intention to cause death, or to cause such bodily injury as is likely to",
"cause death"" where knowledge is the dominant factor.30.",
"1. Rahee, (1866) Unrep Cr C 6. State v Ram Swarup, 1998 Cr LJ 1067 (All).",
"2. Kesar Singh v State of Haryana, (2008) 15 SCC 753 [LNIND 2008 SC 1001] .",
"3. Nirbhai Singh, 1972 Cr LJ 1474 (MP).",
"4. Ballan, 1955 Cr LJ 1448 .",
"5. Aruna Ramchandra Shanbaug v UOI, (2011) 4 SCC 454 [LNIND 2011 SC 265] : AIR 2011 SC",
1290 [LNIND 2011 SC 265] .,
"6. Richhpal Singh Meena v Ghasi, 2014 Cr LJ 4339 : AIR 2014 SC 3595 [LNIND 2014 SC 691] .",
"7. Kesar Singh v State of Haryana, (2008) 15 SCC 753 [LNIND 2008 SC 1001] , the enquiry is",
"broad-based without going into every detail, whether there was the intention to strike at a vital",
part of the body with sufficient force to cause the kind of injury found on the body. Mohd Asif v,
"State of Uttaranchal, (2009) 11 SCC 497 [LNIND 2009 SC 558] : 2009 Cr LJ 2789 , no hard and",
"fast rule can be laid down for determining the existence of intention. Sellappan v State of TN,",
"(2007) 15 SCC 327 [LNIND 2007 SC 91] , death caused by head injury, despite hospitalisation,",
"plea that proper treatment could have saved, not tenable in view of Explanation 2, section 299.",
"8. Joshinder Yadav v State of Bihar, 2014 Cr LJ 1175 : (2014) 4 SCC 42 [LNIND 2014 SC 34] .",
"9. Sharad Birdichand Sarda v State of Maharashtra, AIR 1984 SC 1622 [LNIND 1984 SC 359] :",
1984 Cr LJ 1738 : (1984) 4 SCC 116 [LNIND 1984 SC 359] : 1984 SCC (Cr) 487. See also Bijoy,
"Kumar Sen v State, 1988 Cr LJ 1818 (Cal); Prabhu v State of MP, 1991 Cr LJ 1373 : AIR 1991 SC",
1069 .,
"10. Laxman, 1974 Cr LJ 1271 : AIR 1974 SC 1803 .",
"11. Re Thangavelu, 1972 Cr LJ 390 (Mad); State of Bihar v Pasupati Singh, 1973 Cr LJ 1832 : AIR",
"1973 SC 2699 [LNIND 1973 SC 284] ; Nishan Singh v State of Punjab, (2008) 17 SCC 505 [LNIND",
2008 SC 2718] : AIR 2008 SC 1661 [LNIND 2008 SC 2718] : (2008) 65 AIC 172 .,
"12. Shankar Kondiba Gore v State of Maharashtra, 1995 Cr LJ 93 (Bom), where a stab injury was",
"inflicted on abdomen but death was caused because the right artery was punctured at ilium, it",
was held that the accused could only be saddled with knowledge of causing death and could be,
"convicted under section 304, Part II and not under section 302. See also Dharamvir v State of",
"Haryana, (1994) 2 Cr LJ 1281 (P&H), sudden and unpremeditated fight, there being no previous",
"enmity, single blow death of one, culpable homicide, not murder. Muniappan v State of TN, 1994",
"Cr LJ 1309 (Mad), in a fight between brother and sister, the brother hit her and her son with a",
"crow-bar, the sister died and the son was injured who in anger attacked the accused in reply, the",
accused was held to be guilty of culpable homicide and not entitled to the plea of private,
"defence. Nizamuddin v State of MP, AIR 1994 SC 1041 : 1994 Cr LJ 1386 : 1995 SCC (Cr) 699,",
fatal injury caused in exceeding the right of private defence.,
"13. Jamaludin, (1892) Unrep Cr C 603; Haku, (1928) 10 Lah 555; State of MP v Godhe Faguwa,",
1974 Jab LJ 302 : 1974 MPLJ 203 [LNIND 1973 MP 3] : ILR [1976] MP 361 [LNIND 1973 MP 3] .,
"14. Jagriti Devi v State of HP, (2009) 14 SCC 771 [LNIND 2009 SC 1376] : AIR 2009 SC 2869",
[LNIND 2009 SC 1376] : (2009) 80 AIC 225 (SC) : (2009) 3 AP LJ 52 (SC).,
"15. Kesar Singh v State of Haryana, (2008) 15 SCC 753 [LNIND 2008 SC 1001] ; Daya Nand v",
"State of Haryana, (2008) 15 SCC 717 [LNIND 2008 SC 827] : AIR 2008 SC 1823 [LNIND 2008 SC",
"827] : 2008 Cr LJ 2975 , murder and culpable homicide not amounting to murder, distinction",
explained and restatement of interpretation of sections 299 and 300. A similar explanation is to,
"be seen in Ghelabhai Jagmalbhai Bhawad v State of Gujarat, (2008) 17 SCC 651 ; Harendra Nath",
"Borah v State of Assam, (2007) 15 SCC 249 [LNIND 2007 SC 84] and Raj Kumar v State of",
"Maharashtra, (2009) 15 SCC 292 [LNIND 2009 SC 1504] , ingredients and distinction restated.",
"16. O'Brien, (1880) 2 All 766 ; Idu Beg, (1881) 3 All 776 .",
"17. Safatulla, (1879) 4 Cal 815 ; Fox, (1879) 2 All 522 ; Randhir Singh, (1881) 3 All 597 .",
"18. Bai Jiba, (1967) 19 Bom LR 823 .",
"19. Mana, (1930) 32 Bom LR 1143 , 1144.",
"20. Afrahim Sheikh, AIR 1964 SC 1263 [LNIND 1964 SC 1] : (1964) 2 Cr LJ 350 .",
"21. Megha Meeah, (1865) 2 WR (Cr) 39; O'Brien, (1880) 2 All 766 .",
"22. Kangla v State, (1898) 18 AWN 163.",
"23. Fox, (1879) 2 All 522 .",
"24. Krishnaswami, AIR 1965 Mad 261 .",
25. M&M 228. [This is Morgan & Macpherson's Indian Penal Code. Please see 'Explanation of,
Abbreviations' in the Prelim pages],
"26. Sah Pai, (1936) 14 Ran 643, as explained in Abor Ahmed v State, (1937) Ran 384 (FB).",
"Pappachan v State of Kerala, 1994 Cr LJ 1765 (Ker), defence that proper medical attendance",
was not there was not allowed to be raised.,
"27. Nga Paw v State, AIR 1936 Ran 526",
"28. Satpal v State of Haryana, (2004) 10 SCC 794 .",
"29. Mussammat Budho, AIR 1916 Lah 184 .",
"30. Arun Nivalaji More v State of Maharashtra, (2006) 12 SCC 613 [LNIND 2006 SC 591] : (2007)",
2 SCC (Cr) 221 : AIR 2006 SC 2886 [LNIND 2006 SC 591] : 2006 Cr LJ 4057 .,
THE INDIAN PENAL CODE,
CHAPTER XVI OF OFFENCES AFFECTING THE HUMAN BODY OF,
OFFENCES AFFECTING LIFE,
[s 300] Murder.,
"Except in the cases hereinafter excepted, culpable homicide is murder, if the act by",
"which the death is caused is done with the intention of causing death, or—",
Secondly.—If it is done with the intention of causing such bodily injury as the offender,
"knows to be likely to cause the death of the person to whom the harm is caused, or—",
Thirdly.—If it is done with the intention of causing bodily injury to any person and the,
bodily injury intended to be inflicted is sufficient in the ordinary course of nature to,
"cause death, or—",
Fourthly.—If the person committing the act knows that it is so imminently dangerous,
"that it must, in all probability, cause death or such bodily injury as is likely to cause",
"death, and commits such act without any excuse for incurring the risk of causing",
death or such injury as aforesaid.,
ILLUSTRATIONS,
(a) A shoots Z with the intention of killing him. Z dies in consequence. A commits,
murder.,
"(b) A, knowing that Z is labouring under such a disease that a blow is likely to cause",
"his death, strikes him with the intention of causing bodily injury. Z dies in",
"consequence of the blow. A is guilty of murder, although the blow might not",
have been sufficient in the ordinary course of nature to cause the death of a,
"person in a sound state of health. But if A, not knowing that Z is labouring under",
"any disease, gives him such a blow as would not in the ordinary course of nature",
"kill a person in a sound state of health, here A, although he may intend to cause",
"bodily injury, is not guilty of murder, if he did not intend to cause death, or such",
bodily injury as in the ordinary course of nature would cause death.,
(c) A intentionally gives Z a sword-cut or club-wound sufficient to cause the death,
"of a man in the ordinary course of nature. Z dies in consequence. Here, A is",
"guilty of murder, although he may not have intended to cause Z's death.",
(d) A without any excuse fires a loaded cannon into a crowd of persons and kills,
"one of them. A is guilty of murder, although he may not have had a premeditated",
design to kill any particular individual.,
When culpable homicide is not murder.,
"Exception 1.—Culpable homicide is not murder if the offender, whilst deprived of",
"the power of self-control by grave and sudden provocation, causes the death of",
the person who gave the provocation or causes the death of any other person by,
mistake or accident. The above exception is subject to the following provisos:—,
First.—That the provocation is not sought or voluntarily provoked by the offender,
as an excuse for killing or doing harm to any person.,
Secondly.—That the provocation is not given by anything done in obedience to the,
"law, or by a public servant in the lawful exercise of the powers of such public",
servant.,
Thirdly.—That the provocation is not given by anything done in the lawful exercise,
of the right of private defence.,
Explanation.—Whether the provocation was grave and sudden enough to prevent,
the offence from amounting to murder is a question of fact.,
ILLUSTRATIONS,
"(a) A, under the influence of passion excited by a provocation given by Z,",
"intentionally kills Y, Z's child. This is murder, in as much as the provocation was",
"not given by the child, and the death of the child was not caused by accident or",
misfortune in doing an act caused by the provocation.,
"(b) Y gives grave and sudden provocation to A. A, on this provocation, fires a pistol",
"at Y, neither intending nor knowing himself to be likely to kill Z, who is near him,",
"but out of sight. A kills Z. Here A has not committed murder, but merely culpable",
homicide.,
"(c) A is lawfully arrested by Z, a bailiff. A is excited to sudden and violent passion by",
"the arrest, and kills Z. This is murder, in as much as the provocation was given",
by a thing done by a public servant in the exercise of his powers.,
"(d) A appears as witness before Z, a Magistrate, Z says that he does not believe a",
"word of A's deposition, and that A has perjured himself. A is moved to sudden",
"passion by these words, and kills Z. This is murder.",
"(e) A attempts to pull Z's nose, Z, in the exercise of the right of private defence, lays",
hold of A to prevent him from doing so. A is moved to sudden and violent,
"passion in consequence, and kills Z. This is murder, in as much as the",
provocation was given by a thing done in the exercise of the right of private,
defence.,
"(f) Z strikes B. B is by this provocation excited to violent rage. A, a bystander,",
"intending to take advantage of B's rage, and to cause him to kill Z, puts a knife",
into B's hand for that purpose. B kills Z with the knife. Here B may have,
"committed only culpable homicide, but A is guilty of murder.",
"Exception 2.—Culpable homicide is not murder if the offender, in the exercise in",
"good faith of the right of private defence of person or property, exceeds the",
power given to him by law and causes the death of the person against whom he,
"is exercising such right of defence without premeditation, and without any",
intention of doing more harm than is necessary for the purpose of such,
defence.,
ILLUSTRATION,
"Z attempts to horsewhip A, not in such a manner as to cause grievous hurt to A.",
A draws out a pistol. Z persists in the assault. A believing in good faith that he,
"can by no other means prevent himself from being horsewhipped, shoots Z",
"dead. A has not committed murder, but only culpable homicide.",
"Exception 3.—Culpable homicide is not murder if the offender, being a public",
"servant or aiding a public servant acting for the advancement of public justice,",
"exceeds the powers given to him by law, and causes death by doing an act",
"which he, in good faith, believes to be lawful and necessary for the due",
discharge of his duty as such public servant and without ill-will towards the,
person whose death is caused.,
Exception 4.—Culpable homicide is not murder if it is committed without,
premeditation in a sudden fight in the heat of passion upon a sudden quarrel,
and without the offender having taken undue advantage or acted in a cruel or,
unusual manner.,
Explanation.—It is immaterial in such cases which party offers the provocation,
or commits the first assault.,
Exception 5.—Culpable homicide is not murder when the person whose death is,
"caused, being above the age of eighteen years, suffers death or takes the risk",
of death with his own consent.,
ILLUSTRATION,
"A, by instigation, voluntarily causes, Z, a person under eighteen years of age, to",
"commit suicide. Here, on account of Z's youth, he was incapable of giving",
consent to his own death; A has therefore abetted murder.,
COMMENT.—,
"In this section, the definition of culpable homicide appears in an expanded form. Each",
of the four clauses requires that the act which causes death should be done,
"intentionally, or with the knowledge or means of knowing that death is a natural",
consequence of the act. An intention to kill is not always necessary to make out a case,
of murder. A knowledge that the natural and probable consequence of an act would be,
"death will suffice for a conviction under section 302, IPC, 1860.31.",
[s 300.1] Scope.—,
An offence cannot amount to murder unless it falls within the definition of culpable,
homicide; for this section merely points out the cases in which culpable homicide is,
murder. But an offence may amount to culpable homicide without amounting to,
murder.,
"It does not follow that a case of culpable homicide is murder, because it does not fall",
"within any of the Exceptions to section 300. To render culpable homicide murder, the",
"case must come within the provisions of clauses 1, 2, 3, or 4 of section 300 and must",
not fall within any one of the five Exceptions attached thereto.,
[s 300.2] Culpable homicide and murder distinguished.—,
"The distinction between these two offences is very ably set forth by Melvill, J, in",
"Govinda's case32. and by Sarkaria, J, in Punnayya's case.33. Since the decision of the",
"Supreme Court is the law of the land by virtue of Article 141 of the Constitution,",
relevant passages from Punnayya's case are reproduced below for the guidance of all,
concerned.,
"In the scheme of the Penal Code, 'culpable homicide' is genus and 'murder' its specie. All",
'murder' is 'culpable homicide' but not vice versa. Speaking generally 'culpable homicide,
sans 'special characteristics of murder' is culpable homicide not amounting to murder'. For,
"the purpose of fixing punishment, proportionate to the gravity of this generic offence, the",
"Code practically recognises three degrees of culpable homicide. The first is, what may be",
"called, culpable homicide of the first degree. This is the gravest form of culpable homicide",
which is defined in s. 300 as 'murder'. The second may be termed as 'culpable homicide of,
"the second degree'. This is punishable under the 1st part ofs. 304. Then, there is 'culpable",
homicide of the third degree'. This is the lowest type of culpable homicide and the,
punishment provided for it is also the lowest among the punishments provided for the three,
grades. Culpable homicide of this degree is punishable under the Second Part of s. 304.,
The academic distinction between 'murder' and 'culpable homicide not amounting to,
"murder' has vexed the Courts for more than a century. The confusion is caused, if",
Courts losing sight of the true scope and meaning of the terms used by the legislature,
in these sections allow themselves to be drawn into minute abstractions. The safest,
way of approach to the interpretation and application of these provisions seems to be,
keeping in focus the key words used in the various clauses of sections 299 and 300.,
The following comparative table will be helpful in appreciating the points of distinction,
between the two offences.,
Section 299 Section 300,
"A person commits culpable homicide if the act Subject to certain exceptions, culpable",
by which the death is caused is done - homicide is murder if the act by which the,
death is caused is done -,
INTENTION,
(a) with the intention of causing death; or (1) with the intention of causing death; or,
(b) with the intention of causing such bodily (2) with the intention of causing such bodily,
injury as is likely to cause death; or injury as the offender knows to be likely to,
cause the death of the person to whom the,
harm is caused; or,
(3) with the intention of causing bodily injury to,
any person and the bodily injury intended to be,
inflicted is sufficient in the ordinary course of,
nature to cause death; or,
KNOWLEDGE,
(c) with the knowledge that the act is likely to (4) with the knowledge that the act is so,
cause death. imminently dangerous that it must in all,
probability cause death or such bodily injury as,
"is likely to cause death, and without any excuse",
or incurring the risk of causing death or such,
injury as is mentioned above.,
Clause (b) of section 299 corresponds with clauses (2) and (3) of section 300. The,
distinguishing feature of the mens rea requisite under clause (2) is the knowledge,
possessed by the offender regarding the particular victim being in such a peculiar,
"condition or state of health that the intentional harm caused to him is likely to be fatal,",
notwithstanding the fact that such harm would not in the ordinary way of nature be,
sufficient to cause death of a person in normal health or condition. It is noteworthy that,
the 'intention to cause death' is not an essential requirement of clause (2). Only the,
intention of causing the bodily injury coupled with the offender's knowledge of the,
likelihood of such injury causing the death of the particular victim is sufficient to bring,
the killing within the ambit of this clause. This aspect of clause (2) is borne out by,
Illustration (b) appended to section 300.,
Clause (b) of section 299 does not postulate any such knowledge on the part of the,
offender. Instances of cases falling under clause (2) of section 300 can be where the,
assailant causes death by a fist blow intentionally given knowing that the victim is,
"suffering from an enlarged liver, or enlarged spleen or diseased heart and such blow is",
"likely to cause death of that particular person as a result of the rupture of the liver, or",
"spleen or the failure of the heart, as the case may be. If the assailant had no such",
"knowledge about the disease or special frailty of the victim, nor an intention to cause",
"death or bodily injury sufficient in the ordinary course of nature to cause death, the",
"offence will not be murder, even if the injury which caused the death, was intentionally",
given.,
"In clause (3) of section 300, instead of the words, 'likely to cause death' occurring in the",
"corresponding clause (b) of section 299, the words ""sufficient in the ordinary course of",
"nature"" have been used. Obviously, the distinction lies between a bodily injury likely to",
cause death and a bodily injury sufficient in the ordinary course of nature to cause,
"death. The distinction is fine but real, and, if overlooked, may result in miscarriage of",
justice. The difference between clause (b) of section 299 and clause (3) of section 300,
is one of the degree of probability of death resulting from the intended bodily injury. To,
"put it more broadly, it is the degree of probability of death which determines whether a",
"culpable homicide is of the gravest, medium or the lowest degree. The word ""likely"" in",
clause (b) of section 299 conveys the sense of 'probable' as distinguished from a mere,
possibility. The words 'bodily injury... sufficient in the ordinary course of nature to cause,
"'death' mean that death will be the most probable result of the injury, having regard to",
the ordinary course of nature.,
"For cases to fall within clause (3), it is not necessary that the offender intended to",
"cause death, so long as the death ensues from the intentional bodily injury or injuries",
sufficient to cause death in the ordinary course of nature.,
Clause (c) of section 299 and clause (4) of section 300 both require knowledge of the,
probability of the act causing death. It is not necessary for the purpose of this case to,
dilate much on the distinction between these corresponding clauses. It will be,
sufficient to say that clause (4) of section 300 would be applicable where the,
knowledge of the offender as to the probability of death of a person in general as,
distinguished from a particular person or persons being caused from his imminently,
"dangerous act, approximates to a practical certainty. Such knowledge on the part of the",
"offender must be of the highest degree of probability, the act having been committed",
by the offender without any excuse for incurring the risk of causing death or such injury,
as aforesaid.34.,
"In Ajit Singh v State of Punjab,35. the Supreme Court observed that:",
"In order to hold whether an offence would fall u/s. 302 or s. 304 Part I of the Code, the",
Courts have to be extremely cautious in examining whether the same falls u/s. 300 of the,
"Code which states whether a culpable homicide is murder, or would it fall under its five",
exceptions which lay down when culpable homicide is not murder.,
"In other words, section 300 states both, what is murder and what is not. First finds",
"place in section 300 in its four stated categories, while the second finds detailed",
"mention in the stated five Exceptions to section 300. The legislature in its wisdom,",
"thus, covered the entire gamut of culpable homicide 'amounting to murder' as well as",
that 'not amounting to murder' in a composite manner in section 300 of the Code.36.,
"From the above conspectus, it emerges that whenever a Court is confronted with the",
question of whether the offence is 'murder' or 'culpable homicide not amounting to,
"murder' on the facts of a case, it will be convenient for it to approach the problem in",
"three stages. The question to be considered at the first stage would be, whether the",
accused has done an act by doing which he has caused the death of another. Proof of,
such causal connection between the act of the accused and the death leads to the,
"second stage for considering whether that act of the accused amounts to ""culpable",
"homicide"" as defined in section 299. If the answer to this question is prima facie found",
"in the affirmative, the stage for considering the operation of section 300, IPC, 1860, is",
reached. This is the stage at which the Court should determine whether the facts,
proved by the prosecution bring the case within the ambit of any of the four clauses of,
the definition of 'murder' contained in section 300. If the answer to this question is in,
"the negative, the offence would be 'culpable homicide not amounting to murder',",
"punishable under the first or the second part of section 304, depending, respectively, on",
whether the second or the third clause of section 299 is applicable. If this question is,
"found in the positive, but the case comes within any of the Exceptions enumerated in",
"section 300, the offence would still be 'culpable homicide not amounting to murder',",
"punishable under the first part of section 304, IPC, 1860.",
"The above are only broad guidelines and not cast-iron imperatives. In most cases, their",
observance will facilitate the task of the Court. But sometimes the facts are so,
"intertwined and the second and the third stages so telescoped into each other, that it",
may not be convenient to give a separate treatment to the matters involved in the,
second and third stages.,
To sum up:,
Section 299 is divided into three parts. The first part refers to the act by which the death is,
caused by being done with the intention of causing death. That part corresponds to the first,
"part of the section 300, IPC. The second part of section 299, IPC speaks of the intention to",
cause such bodily injury as is likely to cause death. This has corresponding provisions in,
"clauses ""Secondly"" and ""Thirdly"" of section 300, IPC, section 304, Part I, IPC, covers cases",
"which by reason of the Exceptions under section 300, IPC, are taken out of the purview of",
"cls. (1), (2) and (3) of section 300, IPC, but otherwise would fall within it and also cases",
which fall within the second part of section 299 but not within section 300 clauses (2) and,
"(3). The third part of section 299 corresponds to ""fourthly"" of section s. 300. Section 304,",
"Part-II, IPC, covers those cases which fall within the third part of section 299 but do not fall",
within the fourth clause of section 300.37.,
"Section 300 states both, what is murder and what is not. First finds place in section",
"300 in its four stated categories, while the second finds detailed mention in the stated",
"five Exceptions to section 300. The legislature in its wisdom, thus, covered the entire",
gamut of culpable homicide 'amounting to murder' as well as that 'not amounting to,
murder' in a composite manner in section 300 of the Code.38.,
[s 300.3] Clause 1.— 'Act by which the death is caused is done with the,
intention of causing death'.—,
The word 'act' includes omission as well (section 33). Any omission by which death is,
"caused will be punishable as if the death is caused directly by an act.39. Thus, where a",
person neglected to provide his child with proper sustenance although repeatedly,
"warned of the consequences and the child died, it was held to be murder.40. Intention",
to cause death may be revealed by the whole circumstances of the story.,
[s 300.4] Honour Killing.—,
"In Shakti Vahini v UOI,41. the Supreme Court observed that honour killing is not the",
singular type of offence. It is a grave one but not the lone one. It is a part of honour,
"crime. Honour crime is the genus and honour killing is the species, although a",
"dangerous facet of it. In Arumugam Servai v State of TN,42. the Supreme Court strongly",
deprecated the practice of khap/katta panchayats taking law into their own hands and,
indulging in offensive activities which endanger the personal lives of the persons,
marrying according to their choice.43. Law Commission of India studied the matter and,
submitted the 242nd report to the Government. Some proposals are being mooted,
"proposing amendments to section 300, IPC, 1860 by way of including what is called",
'Honour Killing' as murder and shifting the burden of proof to the accused. But the,
Commission expressed the view that there is no need for introducing a provision in,
"section 300, IPC, 1860 in order to bring the so called 'honour killings' within the ambit of",
"this provision. According to the report, the existing provisions in IPC, 1860 are",
adequate enough to take care of the situations leading to overt acts of killing or,
causing bodily harm to the targeted person who allegedly undermined the honour of,
the caste or community. The commission suggested a new law (instead of amending,
"IPC, 1860) to tackle the problem namely ""Prohibition of Interference with the Freedom",
"of Matrimonial Alliances Bill 2011"".44.",
"In Shakti Vahini v UOI,45. the Supreme Court observed that torture or torment or ill-",
treatment in the name of honour that tantamounts to atrophy of choice of an individual,
relating to love and marriage by any assembly is illegal and cannot be allowed a,
"moment of existence. In this case, the Supreme Court issued detailed preventive,",
remedial and punitive directives to prevent honour killings in the country.,
[s 300.5] Clause 2.—'With the intention of causing such bodily injury as the,
offender knows to be likely to cause the death'.—,
This clause applies where the act by which death is caused is done with the intention,
of causing such bodily injury as the offender knows to be likely to cause the death of the,
person to whom the harm is caused. It applies in special cases where the person,
injured is in such a condition or state of health that his or her death would be likely to,
be caused by an injury which would not ordinarily cause the death of a person in sound,
health and where the person inflicting the injury knows that owing to such condition or,
state of health it is likely to cause the death of the person injured. In a case involving,
"attack with sulphuric acid causing ""grievous injury"" where the doctor testified that such",
"an attack may also cause death, the Court said that ""the word likely means 'probably'",
and can easily be distinguished from 'possibly'. When the chances of a thing happening,
"are very high, we say that it will most probably happen"".46.",
[s 300.6] Poisoning.—,
"In a case of murder by poisoning, the prosecution must establish (1) that death took",
"place by poisoning, (2) that the accused had the poison in his possession, and (3) that",
the accused had an opportunity to administer poison to the deceased.47. These,
"propositions were laid down by the Supreme Court in Dharambir Singh v State of Punjab,",
"Criminal Appeal No. 98 of 1958, decided, Nov. 4, 1958 SC48. and were given anxious",
"consideration by Hidayatullah, J, in Anant Chintaman Lagu v State of Bombay.49. The",
learned judge (afterwards CJ) did not consider them as invariable criteria of proof to be,
established by the prosecution in every case of murder by poisoning. This is so,
"""because"", as the learned judge said:",
"evidently if after poisoning the victim, the accused destroyed all traces of the body, the first",
"proposition would be incapable of being proved except by circumstantial evidence. Similarly,",
if the accused gave a victim something to eat and the victim died immediately on the,
"ingestion of that food with symptoms of poisoning and poison, found in the viscera, the",
requirement of proving that the accused was possessed of the poison would follow the,
circumstance that the accused gave the victim something to eat and need not be separately,
proved.,
Following this opinion in the case of Bhupinder Singh v State of Punjab50. and,
"dispensing with the need for proof of possession of poison, the Supreme Court said",
that:,
we do not consider it necessary that there should be acquittal on the failure of the,
prosecution to prove possession of poison with the accused. Murder by poison is invariably,
committed under the cover and cloak of secrecy. Nobody will administer poison to another,
in the presence of others. The person who administers poison..... will not keep a portion of it,
for the investigating officer to come and collect it.... [He] would naturally take care to,
eliminate and destroy the evidence against him.... It would be impossible for the,
"prosecution to prove possession of poison with the accused. The prosecution may,",
"however, establish other circumstances consistent only with the hypothesis of the guilt of",
the accused. The Court then would not be justified in acquitting the accused on the ground,
that the prosecution has failed to prove possession of poison with the accused.,
"Continuing further, Shetty, J said:",
The poison murder cases are not to be put outside the rule of circumstantial evidence.,
There may be very many obvious facts and circumstances in which the Court may be,
justified in drawing permissible inference that the accused was in possession of the poison,
in question.... The insistence on proof of possession of poison... invariably in every case is,
neither desirable nor practicable. It would mean to introduce an extraneous ingredient to the,
offence of murder by poisoning.,
"Where, therefore, neither motive nor administration of poison nor its possession by the",
"accused could be proved, the accused had to be acquitted.51. Where it is proved that",
"the accused administered poison, the accused must be presumed to have knowledge",
that his act was likely to cause death.52. If the prosecution failed to prove the cause of,
"death, the fact that the accused failed to explain the cause of death cannot be the",
basis of conviction. Accused was acquitted where neither post-mortem report nor FSL,
report showed the administration of poison.53. Where the allegation was that the death,
"was caused by poison mixed with alcohol, but no remnants of poisonous substance",
were found either in the two bottles or in the steel glass but were found only in the,
"earth so collected from the place of occurrence, accused acquitted.54.",
[s 300.7] Possibility of survival of deceased.—,
The Supreme Court has observed that a chance of miraculous survival is not,
contemplated by section 300. The attacker becomes liable if he knew that his victim,
would die as a result of the injuries caused by him. The doctor's opinion that the victim,
could have survived if timely and proper medical aid was provided is a hypothetical,
proposition.55.,
[s 300.8] Clause 3.—'With the intention of causing bodily injury to any person ...,
sufficient in the ordinary course of nature to cause death'.—,
The distinction between this clause and clause 2 of section 299 depends upon the,
degree of probability of death from the act committed. If from the intentional act of,
"injury committed the probability of death resulting is high, the finding will be that the",
"accused intended to cause death, or injury sufficient in the ordinary course of nature to",
cause death; if there was probability in a less degree of death ensuing from the act,
"committed, the finding will be that the accused intended to cause injury likely to cause",
"death.56. In the case of Mangesh v State of Maharashtra,57. the Supreme Court stated",
the circumstances from which it may be gathered as to whether there was intention to,
cause death. It included circumstances like nature of the weapon; on what part of the,
body the blow was given; the amount of force; was it a result of a sudden fight or,
quarrel; whether the incident occurred by chance or was pre-meditated; prior animosity;,
grave and sudden provocation; heat of passion; did the accused take any undue,
"advantage; did he act cruelly; number of blows given, etc. Even if none of the injuries by",
"itself was sufficient in the ordinary course of nature to cause death, cumulatively such",
injuries may be sufficient in the ordinary course of nature to cause death.58.,
"[s 300.9] ""Bodily injury"".—",
"The expression ""bodily injury"" in clause thirdly includes also its plural, so that the clause",
would cover a case where all the injuries intentionally caused by the accused are,
"cumulatively sufficient to cause the death in the ordinary course of nature, even if none",
of those injuries individually measures up to such sufficiency. The sufficiency spoken of,
"in this clause, as already noticed, is the high probability of death in the ordinary course",
"of nature, and if such sufficiency exists and death is caused and the injury causing it is",
"intentional, the case would fall under clause thirdly of section 300. All the conditions",
which are a prerequisite for the applicability of this clause have been established and,
"the offence committed by the accused, in the instant case was ""murder"".59.",
What is required for the prosecution to prove to bring the case under clause thirdly to,
"section 300? First, it must be established, quite objectively, that a bodily injury is",
"present; Second, the nature of the injury must be proved and these are purely objective",
"investigations; third, it must be proved that there was an intention to inflict that",
"particular bodily injury, that is to say, that it was not accidental or unintentional, or that",
some other kind of injury was intended; and once these three elements are proved to,
"be present, the enquiry proceeds further; and fourth, it must be proved that the injury of",
the type just described made up of the three elements set out above is sufficient to,
cause death in the ordinary course of nature. This part of the enquiry is purely objective,
and inferential and has nothing to do with the intention of the offender. Once these four,
"elements are established by the prosecution (and, of course, the burden is on the",
"prosecution throughout) the offence is murder under section 300 ""thirdly"". Once the",
"intention to cause the bodily injury actually found to be present is proved, the rest of the",
"enquiry is purely objective and the only question is whether, as a matter of purely",
"objective inference, the injury is sufficient in the ordinary course of nature to cause",
"death.60. On this particular point, there is the following pertinent observation of the",
Supreme Court:61.,
The nature of the offence does not depend merely on the location of the injury caused by,
the accused. The intention of the person causing the injury has to be gathered from a,
careful examination of the facts and circumstances of each given case….,
The Supreme Court also observed that the intention to cause the requisite type of injury,
"is a subjective inquiry, but that once that type of intention is found in the assailant, the",
further inquiry whether the injury was sufficient in the ordinary course of nature to,
cause death is of objective nature.62.,
[s 300.10] Principle of exclusion.—,
"In Rampal Singh v State of UP,63. after referring to the pronouncements in Rayavarapu",
"Punnayya (supra), Vineet Kumar Chauhan v State of UP,64. Ajit Singh v State of Punjab,65.",
"and Mohinder Pal Jolly v State of Punjab,66. the Supreme Court opined thus:",
The evidence led by the parties with reference to all these circumstances greatly helps the,
Court in coming to a final conclusion as to under which penal provision of the Code the,
accused is liable to be punished. This can also be decided from another point of view i.e. by,
"applying the ""principle of exclusion"". This principle could be applied while taking recourse to",
"a two- stage process of determination. First, the Court may record a preliminary finding if",
the accused had committed an offence punishable under the substantive provisions of s.,
"302 of the Code, that is, ""culpable homicide amounting to murder"". Then second, it may",
proceed to examine if the case fell in any of the Exceptions detailed in s. 300 of the Code.,
This would doubly ensure that the conclusion arrived at by the Court is correct on facts and,
sustainable in law. We are stating such a proposition to indicate that such a determination,
would better serve the ends of criminal justice delivery.67.,
"The third clause of section 300 views the matter from a general standpoint. Here, the",
emphasis is on the sufficiency of the injury in the ordinary course of nature to cause,
death. The sufficiency is the high probability of death in the ordinary way of nature.,
When this sufficiency exists and death follows and the causing of such injury is,
"intended, the offence is murder. Sometimes the nature of the weapon used, sometimes",
the part of the body on which the injury is caused and sometimes both are relevant.68.,
"In some cases, the sufficiency of injury to cause death in the ordinary course of nature",
must be proved and cannot be inferred from the fact that death has in fact taken place.,
"In such a case, it may not be open to argue backwards from the death to the blow, to",
hold that the sufficiency is established because death did result. As death can take,
"place from other causes, the sufficiency is required to be proved by other and separate",
evidence.69.,
[s 300.11] Contradiction between ocular and medical evidence.—,
"Where there is a contradiction between medical evidence and ocular evidence, the",
position of law can be crystallised to the effect that though the ocular testimony of a,
"witness has greater evidentiary value vis-à-vis medical evidence, when medical",
"evidence makes the ocular testimony improbable, that becomes a relevant factor in the",
"process of the evaluation of evidence. However, where the medical evidence goes so",
"far that it completely rules out all possibility of the ocular evidence being true, the",
ocular evidence may be disbelieved.70. The opinion given by a medical witness need,
not be the last word on the subject. Such opinion shall be tested by the Court. If the,
"opinion is bereft of logic or objectivity, Court is not obliged to go by that opinion. After",
"all, opinion is what is formed in the mind of a person regarding a fact situation. If one",
doctor forms one opinion and another doctor forms a different opinion on the same,
"facts, it is open to the judge to adopt the view which is more objective or probable.",
"Similarly, if the opinion given by one doctor is not consistent with probability, the Court",
"has no liability to go by that opinion merely because it is said by the doctor. Of course,",
due weight must be given to opinions given by persons who are experts in the,
particular subject.71. Where the testimony of eye-witnesses is totally inconsistent with,
"medical evidence, and suffering from improvements, the rule that ocular evidence has",
precedence over medical evidence cannot be applied.72.,
[s 300.12] Discrepancy between the reports of doctor who examined the,
deceased and the doctor who conducted autopsy.—,
Where the medical certificate showed the age of injuries as 24 hours but in post-,
"mortem report it was mentioned as six hours, it was held that in post-mortem report,",
the determination of precise duration of the injuries can be possible due to the internal,
examination of the injuries whereas no such advantage is available to the doctor when,
he examines the injuries in the nature of contusions.73.,
[s 300.13] Medical Evidence.—,
"Medical evidence that the death was homicidal, cannot alone be made the basis to",
connect the accused person with crime. The accused persons are entitled to the,
benefit of doubt.74.,
"[s 300.14] ""Secondly"" and ""Thirdly"" distinguished.—",
"The two clauses are disjunctive and separate. Clause ""Secondly"" is subjective to the",
"offender. It must, of course, first be found that bodily injury was caused and the nature",
"of the injury must be established, that is to say, whether the injury is on the leg or the",
"arm or the stomach, how deep it penetrated, whether any vital organs were cut and so",
forth. These are purely objective facts and leave no room for inference or deduction: to,
"that extent the enquiry is objective; but when it comes to the question of intention, that",
is subjective to the offender and it must be proved that he had an intention to cause the,
"bodily injury that is found to be present. First part of clause ""Thirdly"" envisages",
"infliction of bodily injury with the intention to inflict it, i.e., it must be proved that the",
injury found to be present was the injury that was intended to be inflicted. Whether it,
was sufficient to cause death in the ordinary course of nature is a matter of inference,
or deduction from the proven facts about the nature of the injury and has nothing to do,
with the question of intention.75.,
[s 300.15] Clause 4.—'Person committing the act knows that it is so imminently,
"dangerous that it must, in all probability, cause death, or such bodily injury as",
is likely to cause death'.—,
Where it is clear that the act by which the death is caused is so imminently dangerous,
"that the accused must be presumed to have known that it would, in all probability,",
"cause death or such bodily injury as is likely to cause death, then unless he can meet",
"this presumption his offence will be culpable homicide, and it would be murder unless",
"he can bring it under one of the Exceptions.76. Thus, a man who strikes at the back of",
another a violent blow with a formidable weapon77. or who strikes another in the throat,
with a knife78. must be taken to know that he is doing an act imminently dangerous to,
the life of the person at whom he strikes and that a probable result of his act will be to,
cause that person's death.79.,
This clause also provides for that class of cases where the acts resulting in death are,
calculated to put the lives of many persons in jeopardy without being aimed at any one,
"in particular, and are perpetrated with a full consciousness of the probable",
"consequences, e.g., where death is caused by firing a loaded gun into a crowd [vide",
"Illustration (d)], or by poisoning a well from which people are accustomed to draw",
water.,
The Supreme Court has held that although this clause is usually invoked in those cases,
"where there is no intention to cause the death of any particular person, the clause may",
on its terms be used in those cases where there is such callousness towards the result,
and the risk taken is such that it may be stated that the person knows that the act is,
likely to cause death or such bodily injury as is likely to cause death.80.,
Where it was shown that the spurious liquor was sold from the local vends belonging to,
"the accused persons coupled with the fact that after the tragedy struck, the accused",
"persons even tried to destroy remaining bottles, it was held that the accused had full",
knowledge of the fact that the bottles contained substance methyl and also about the,
"disastrous consequences thereof, thus bringing their case within the four corners of",
section 300 fourthly.81.,
[s 300.16] As to dying declarations.—,
In spite of all the importance attached and the sanctity given to the piece of dying,
"declaration, Courts have to be very careful while analysing the truthfulness and,",
genuineness of the dying declaration and should come to a proper conclusion that the,
dying declaration is not a product of prompting or tutoring.82.,
[s 300.16.1] Benefit of doubt.—,
An accused person cannot be given the benefit of doubt only on the ground that,
injuries on his person were not explained particularly when the injuries are of simple,
and superficial nature.83.,
[s 300.16.2] Death in custody.—,
"In State of TN v Balkrishna,84. it was held that merely because the death of the person",
"occurred in police custody, an immediate inference of murder could not be drawn",
against the police.,
[s 300.17] Non-explanation of injuries.—,
The omission on the part of the prosecution to explain the injuries on the person of the,
accused assumes much greater importance where the evidence consists of interested,
or inimical witnesses or where the defence gives a version which competes in,
"probability with that of the prosecution one. However, there may be cases where the",
non-explanatiosn of the injuries by the prosecution may not affect the prosecution,
case. This principle would apply to cases where the injuries sustained by the accused,
"are minor and superficial or where the evidence is so clear and cogent, that it",
outweighs the effect of the omission on the part of the prosecution to explain the,
injuries.85.,
[s 300.18] Exception 1.—Provocation.—,
"Anger is a passion to which good and bad men are both subject, and mere human",
frailty and infirmity ought not to be punished equally with ferocity or other evil feelings.,
The act must be done whilst the person doing it is deprived of self-control by grave and,
"sudden provocation. That is, it must be done under the immediate impulse of",
provocation.86.,
"[s 300.19] Meaning of the words ""grave"" and ""sudden"".—",
The expression 'grave' indicates that provocation be of such a nature so as to give,
cause for alarm to the accused. 'Sudden' means an action which must be quick and,
unexpected so far as to provoke the accused. The question of whether provocation,
was grave and sudden is a question of fact and not one of law. Each case is to be,
considered according to its own facts.87.,
The mode of resentment should bear some proper and reasonable relationship to the,
sort of provocation that has been given. The test to be applied is that of the effect of,
"the provocation on a reasonable man, so that an unusually excitable or pugnacious",
individual is not entitled to rely on provocation which would not have led an ordinary,
person to act as he did. It is important to consider whether a sufficient interval has,
"elapsed since the provocation to allow a reasonable person time to cool, and account",
must be taken of the instrument with which the homicide had been effected.88. The,
mode of resentment must bear a reasonable relationship to the provocation.89.,
"Principles relating to ""grave and sudden provocation"" summarised by the Supreme Court",
"(1) The test of ""grave and sudden"" provocation is whether a reasonable man, belonging",
"to the same class of society as the accused, placed in the situation in which the",
"accused was placed would be so provoked as to lose his self-control. (2) In India,",
"words and gestures may also, under certain circumstances, cause grave and sudden",
provocation to an accused so as to bring his act within the First Exception to section,
300 of the Indian Penal Code.,
(3) The mental background created by the previous act of the victim may be taken into,
consideration in ascertaining whether the subsequent act caused grave and sudden,
provocation for committing the offence.,
(4) The fatal blow should be clearly traced to the influence of passion arising from that,
"provocation and not after the passion had cooled down by lapse of time, or otherwise",
giving room and scope for premeditation and calculation.,
KM Nanavati v State of Maharashtra.90.,
An offence resulting from grave and sudden provocation would normally mean that a,
person placed in such circumstances could lose self-control but only temporarily and,
"that too, in proximity to the time of provocation. The provocation could be an act or",
series of acts done by the deceased to the accused resulting in inflicting of injury.91.,
"The test of ""grave and sudden"" provocation is whether a reasonable man, belonging to",
"the same class of society as the accused, placed in the situation in which the accused",
was placed would be so provoked as to lose his self-control. Words and gestures may,
"also, under certain circumstances, cause grave and sudden provocation to an accused",
so as to bring his act within the Exception. The mental background created by the,
previous act of the victim may be taken into consideration in ascertaining whether the,
subsequent act caused grave and sudden provocation for committing the offence. The,
fatal blow should be clearly traced to the influence of passion arising from that,
"provocation and not after the passion had cooled down by lapse of time, or otherwise",
giving room and scope for premeditation and calculation.92.,
[s 300.20] Self-control.—,
"This term as it appears in section 300, Exception 1 is a subjective phenomenon and",
can be inferred from the surrounding circumstances in a given case. In order to find out,
whether the last act of provocation on which the offender caused the death was,
"sufficiently grave to deprive the accused of the power of self-control, the previous acts",
of provocation caused by the person can always be taken into consideration.93.,
[s 300.21] Grave and Sudden: Cases.—,
"Where there is sufficient time for cooling down, there would be no sudden provocation",
"and the act of the accused would be a deliberate one. Thus, where the accused after",
"receiving the provocation in a school committee meeting went to his house, brought a",
"gun and thereafter shot chasing fleeing men, his action did not fall within this exception",
but was an act of murder.94.,
"What is critical for a case to fall under Exception 1 to section 300, IPC, 1860 is that the",
provocation must not only be grave but sudden as well. It is only where the following,
ingredients of Exception 1 are satisfied that an accused can claim mitigation of the,
offence committed by him from murder to culpable homicide not amounting to murder:,
(1) The deceased must have given provocation to the accused.,
(2) The provocation so given must have been grave.,
(3) The provocation given by the deceased must have been sudden.,
(4) The offender by reason of such grave and sudden provocation must have been,
deprived of his power of self-control; and,
(5) The offender must have killed the deceased or any other person by mistake or,
accident during the continuance of the deprivation of the power of self-control.95.,
"[s 300.22] Doctrine of, and acts amounting to, sustained provocation.—",
What Exception 1 of section 300 contemplates is a grave and sudden provocation,
whereas the ingredient of sustained provocation is a series of acts more or less grave,
"spread over a certain period of time, the last of which acting as the last straw breaking",
a camel's back may even be a very trifling one. Where the accused had killed an,
innocent woman and an infant of a family merely on the suspicion of illicit intimacy,
between his wife and the father of the deceased infant and his suspicion appeared to,
"be more imaginary than real, it was held that there was practically no ground to invoke",
"this doctrine. Besides, as there was nothing to support his suspicion and there was no",
"enmity between the accused and the deceased either, the plea of sustained",
"provocation was not tenable under section 300, Exception 1.96.",
[s 300.23] Adulterous intercourse.—,
A man in love with a woman who had repulsed his suit might be so angry as to lose,
"control of himself at the sight of her engaged in sexual intercourse with another, but if",
"he kills one or both of them, he cannot plead grave provocation in mitigation of his",
"offence. The law that, when a husband discovers his wife in the act of adultery and",
"thereupon kills her, he is guilty of manslaughter and not murder, has no application",
where the woman concerned is not the wife of the accused.97.,
[s 300.24] CASES.—,
"Adulterous intercourse has been held, in several cases, to give grave and sudden",
provocation.98. It is not necessary for the husband to plead seeing of actual,
intercourse between his wife and the paramour.99. Where the accused killed the,
"deceased as he saw the deceased committing sodomy on his son, the case",
undoubtedly fell within this Exception and he was liable to be convicted only under,
"section 304, Part II and not under section 302, IPC, 1860.100.",
"However, if the death of the adulterer is caused not in a fit of passion but with",
"subsequent deliberation, this Exception does not apply.",
[s 300.25] Quarrel.—,
Where two friends happened to quarrel suddenly and one inflicted a single knife injury,
to the other which was not aimed at any vital part and the doctor verified that the injury,
"should not have ordinarily caused death, he was punished under section 304, Part",
II.101.,
[s 300.26] Exception 2.—Exceeding right of private defence.—,
This Exception provides for the case of a person who exceeds the right of private,
defence. The authors of the Code observed:,
"Wherever the limits of the right of private defence may be placed, and with whatever degree",
"of accuracy they may be marked, we are inclined to think that it will always be expedient to",
make a separation between murder and... voluntary culpable homicide in defence.,
The chief reason for making this separation is that the law itself invites men to the very,
verge of the crime which we have designated as voluntary culpable homicide in defence. It,
prohibits such homicide indeed; but it authorizes acts which lie very near to such homicide;,
"and this circumstance, we think, greatly mitigates the guilt of such homicide.",
That a man who deliberately kills another in order to prevent that other from pulling his nose,
should be allowed to go absolutely unpunished would be most dangerous. The law,
punishes and ought to punish such killing; but we cannot think that the law ought to punish,
such killing as murder; for the law itself has encouraged the slayer to inflict on the assailant,
any harm short of death which may be necessary for the purpose of repelling the outrage; to,
give the assailant a cut with a knife across the fingers which may render his right hand,
"useless to him for life, or to hurl him downstairs with such force as to break his leg; and it",
seems difficult to conceive that circumstances which would be a full justification of any,
violence short of homicide should not be a mitigation of the guilt of homicide. That a man,
should be merely exercising a right by fracturing the skull and knocking out the eye of an,
"assailant, and should be guilty of the highest crime in the Code if he kills the same assailant;",
"that there should be only a single step between perfect innocence and murder, between",
"perfect impunity and liability to capital punishment, seems unreasonable. In a case in which",
"the law itself empowers an individual to inflict any harm short of death, it ought hardly, we",
"think, to visit him with the highest punishment if he inflicts death.102.",
[s 300.27] When the offender is not entitled to get the benefit of this exception.,
—,
"A fortiori in cases where an accused sets up right of private defence, the first and the",
foremost question that would fall for determination by the Court would be whether the,
accused had the right of private defence in the situation in which death or other harm,
"was caused by him. If the answer to that question is in the negative, Exception 2 to",
section 300 of the Code would be of no assistance. Exception 2 presupposes that the,
offender had the right of private defence of person or property but he had exceeded,
such right by causing death. It is only in case answer to the first question is in the,
"affirmative, viz., that the offender had the right of defence of person or property, that",
"the next question, viz., whether he had exercised that right in good faith and without",
premeditation and without any intention of doing more harm that was necessary for the,
purpose of such defence would arise. Should answer to any one of these questions be,
"in the negative, the offender will not be entitled to the benefit of Exception 2 to section",
300 of the Code. 103.,
[s 300.28] CASES.—No right of private defence.—,
Where both sides can be convicted for their individual acts and normally no right of,
private defence is available to either party and they will be guilty of their respective,
acts.104. There was no premeditation and the act was committed in a heat of passion,
and the appellant had not taken any undue advantage or acted in a cruel manner. There,
was a fight between the parties. The case falls under the fourth exception to section,
"300, IPC, 1860.105. The accused were, in fact, aggressors and being members of the",
aggressors' party none of the accused can claim right of self-defence.106. Merely,
"because there was a quarrel and some of the accused persons sustained injuries, that",
does not confer a right of private defence extending to the extent of causing death. It,
has to be established that the accused persons were under such grave apprehension,
about the safety of their life and property that retaliation to the extent done was,
absolutely necessary. Right of private defence has been rightly discarded.107. After an,
"altercation and exchange of abuses, two persons aimed rifles at each other. After one",
"of them had lowered his rifle, the other fired at him killing him. It was held that the",
accused was not entitled to the right of private defence and was convicted under,
section 300.108.,
[s 300.29] Exceeding Right of Private Defence.—,
"While exercising his right of private defence of property, the accused exceeded his right",
of private defence and killed a man. It was held that the case fell within Exception 2 of,
"section 300 and as such he was liable to be punished under section 304, Part I and not",
"under section 302, IPC, 1860.109. To ward off an attack with a stick, a stab wound",
"puncturing the heart is not justified. It is a clear case of offence under section 304, Part",
"I, IPC, 1860.110. So also is the case of killing an unarmed trespasser with chhura blows",
which punctured both the heart and the lung.111.,
A dispute over lease of agricultural land led to murder. The accused appeared armed,
with deadly weapons. Two persons were killed in separate incidents. The Court said,
that this indicated that there was pre-meditation. The acts done showed that there was,
"intention to do more harm than was necessary for the purposes of self-defence. Hence,",
the offences were not in the category of culpable homicide not amounting to,
murder.112.,
"The Court found that at some point of time, the accused (appellant) was exercising his",
"right of private defence, but that had ceased to exist long before the time when the",
"deadly blow was administered. His conviction was altered to section 304, Part I.113.",
[s 300.30] Causing injury after private defence ceased to be available.—,
There was a scuffle between the accused persons and the complainant party. One of,
the accused persons fired a gunshot of which one member of the complainant party,
died. The injury was caused when members of the complainant party were fleeing,
"away. There was the right of private defence before the retreat. Thus, he exceeded the",
right of private defence. The Court said that his act was covered by Exception 2 to,
"section 300. He was liable to be punished under section 304, Part II.114.",
[s 300.31] Exception 3.—Public servant exceeding his power.—,
"This Exception protects a public servant, or a person aiding a public servant acting for",
"the advancement of public justice, if either of them exceeds the powers given to them",
by law and causes death. It gives protection so long as the public servant acts in good,
"faith, but if his act is illegal and unauthorised by law, or if he glaringly exceeds the",
"powers entrusted to him by law, the Exception will not protect him. Where death was",
"caused by a constable under orders of a superior, it being found that neither he nor his",
superior believed that it was necessary for public security to disperse certain reapers,
"by firing on them, it was held that he was guilty of murder since he was ""not protected",
"in that he obeyed the orders of his superior officer.""115. Exception 3 to section 300, IPC,",
1860 pre-supposes that a public servant who causes death must do so in good faith,
and in due discharge of his duty as a public servant and without ill-will towards the,
person whose death is caused. The positive case set up by the defence that firing was,
"in self-defence has been rejected by the trial court, High Court as well by the Supreme",
"Court, the question of any good faith does not arise. The appellants had fired without",
provocation at the car killing two innocent persons and injuring one. The obligation to,
prove an exception is on the preponderance of probabilities but it nevertheless lies on,
the defence.116.,
[s 300.32] Exception 4.—Death caused in sudden fight.—,
A perusal of the provision would reveal that four conditions must be satisfied to bring,
the matter within Exception 4:,
(i) it was a sudden fight;,
(ii) there was no premeditation;,
(iii) the act was done in the heat of passion; and that,
(iv) the assailant had not taken any undue advantage or acted in a cruel manner.117.,
"[s 300.33] ""Fight"": meaning of.—",
"The 'fight' occurring in Exception 4 to section 300, IPC, 1860 is not defined in IPC, 1860.",
It takes two to make a fight. Heat of passion requires that there must be no time for the,
"passions to cool down and in this case, the parties have worked themselves into a fury",
on account of the verbal altercation in the beginning. A fight is a combat between two,
and more persons whether with or without weapons. It is not possible to enunciate any,
general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact,
and whether a quarrel is sudden or not must necessarily depend upon the proved facts,
of each case.118.,
"The language of Exception 4 to section 300 is, thus, clear that culpable homicide is not",
murder if it is committed without premeditation in a sudden fight in the heat of passion,
upon a sudden quarrel provided the offender has not taken undue advantage or acted,
in a cruel or unusual manner. In order to bring a case under Exception (4) to section,
"300, IPC, 1860, the evidence must show that the accused without any premeditation",
and in a heat of passion and without having undue advantage had not acted in cruel,
manner. Every one of these circumstances is required to be proved to attract Exception,
"(4) to section 300, IPC, 1860 and it is not sufficient to prove only some of them. None",
of the ingredients have been proved in evidence to bring the case under Exception (4),
"to section 300, IPC, 1860.119. Case comes under Exception 4 where the prosecution",
evidence sufficiently suggested that a scuffle had taken place on the dingy where the,
appellant and his companions were trying to recover the dingy while the deceased was,
"preventing them from doing so, and in the course of this sudden fight and in the heat of",
"passion, the appellant assaulted the deceased and pushed him in the sea eventually",
resulting in his death.120. Where there was no pre-meditation and the act was,
committed in a heat of passion and the appellant had not taken any undue advantage,
"or acted in a cruel manner and there was a fight between the parties, the Supreme",
"Court found that the case falls under the fourth exception to section 300, IPC, 1860 and",
"the conviction altered from section 302, IPC, 1860 to section 304, Part I, IPC, 1860.121.",
Heat of passion requires that there must be no time for the passions to cool down and,
in this case the parties have worked themselves into a fury on account of the verbal,
altercation in the beginning.122.,
"This Exception was held not to apply to a case where two bodies of men, for the most",
"part armed with deadly weapons, deliberately entered into an unlawful fight, each being",
"prepared to cause the death of the other, and aware that his own might follow, but",
"determined to do his best in self-defence, and in the course of the struggle death",
ensued.123. An unpremeditated assault (in which death is caused) committed in the,
heat of passion upon a sudden quarrel comes within the Exception.124.,
Exception 4 is attracted only when there is a fight or quarrel which requires mutual,
provocation and blows by both sides in which the offender does not take undue,
advantage.125.,
"A ""sudden fight"" implies mutual provocation and blows on each side. The homicide",
"committed is then clearly not traceable to unilateral provocation, nor could in such",
"cases the whole blame be placed on one side. For if it were so, the Exception more",
appropriately applicable would be Exception 1.126.,
The word 'fight' conveys something more than a verbal quarrel.127. It takes two to make,
a fight. It is not necessary that weapons should be used in a fight. In order to constitute,
"fight, it is necessary that blows should be exchanged even if they do not all find their",
target.128. The fight must be with the person who is killed and not with another,
"person.129. The words ""undue advantage"" in this Exception means ""unfair",
"advantage"".130. Where a wordy quarrel had taken place and the quarrel had led to the",
"use of weapons by both the parties against each other, the Supreme Court said that it",
could not be held to be a kind of case in which the accused had deliberately attacked,
the deceased with an intention to kill them. It is a case which would fall under the,
"Exception 4 to section 300, IPC, 1860.131. Where on account of a sudden impulse and",
"without any intention or knowledge of the impending consequences, the accused",
"squeezed the testicles of the other causing shock, cardiac arrest and instant death, the",
Supreme Court held that the offence in question amounted to grievous hurt punishable,
under section 325 and not under this section.132. Where two cultivating parties working,
in their respective fields picked up a sudden quarrel over the dividing line and death,
"ensued, there was no previous ill-will between them and, therefore, no pre-meditation,",
"conviction was altered from under section 302 to one under section 304, Part I read",
"with section 34.133. Where, on the other hand, the incident did take place at the spur of",
the moment and evidence showed that the accused persons intentionally assaulted the,
"deceased and his family in a brutal manner, their conviction under section 300 was held",
to be proper.134. The accused persons cannot argue successfully that the incident,
occurred at the spur of the moment where they came to the place of occurrence armed,
"with deadly weapons. In this case, the evidence established that it was a pre-meditated",
"act, thus their conviction for the offence punishable under section 302, IPC, 1860 was",
held proper.135. In a sudden fight in heat of passion and without pre-meditation the,
accused armed with deadly weapon inflicted fatal blows on the unarmed deceased,
even when he fell on the ground. It was held that Exception 4 of section 300 was not,
attracted and the conviction of the accused for murder was proper.136.,
"Where the offender took an undue advantage or acted in a cruel and unusual manner, it",
was held that the benefit of Exception 4 could not be given to him. The Supreme Court,
"observed that the weapon used or the manner of attack is out of all proportion, that",
fact must be taken into consideration for deciding whether undue advantage was,
taken.137.,
A person opened the door on the call of his uncle who was under assault. He was,
unarmed and came out to see what was happening. He received a gunshot at his chest,
causing death. The Court said that the appellant had taken undue advantage of his,
position at the time. He could not claim the benefit of Exception 4.138.,
"Where though there was a sudden quarrel between the accused and the deceased,",
"there was absolutely no fight between the two as there was no exchange of blows, nor",
any attack from the side of the deceased who was totally unarmed but nevertheless,
"the accused attacked the deceased with an axe causing his death, it was held that his",
case did not fall either within Exception 4 or Exception 2 and he was squarely liable,
"under section 302, IPC, 1860.139. A sudden fight developed between the accused and",
the deceased while the former was telling the latter that he should not carry his cattle,
by the side of the field of the accused. Three brothers of the accused rushed to his,
rescue and belaboured the deceased with whatever weapons they had in their hands.,
The deceased died of multiple injuries and broken bones. The ferocious cruelty,
established intention to cause death and took the case out of the exception.140.,
The accused abused a road sweeper who happened to throw mud on him. The father,
of the sweeper slapped the accused. The infuriated accused went away and came back,
"with others. He alone, however, inflicted the fatal blow. The occurrence was of sudden",
origin because the gap between the injury and quarrel was that of only a few minutes.,
There was no previous enmity and blows were not repeated as the deceased fell down,
helpless. There was no unusual cruelty. The benefit of Exception 4 was allowed.141. In,
"a quarrel between the accused and his father, the accused attacked his father with a",
dagger causing death and also attacked the intervener who were his stepmother and,
sisters. No injury was caused to the accused because all others were unarmed. The,
accused took undue advantage of that fact. He acted in a cruel manner. The exception,
was not attracted. He was guilty of murder.142. It cannot be said in all cases of a single,
blow that section 302 would not be attracted. A single blow in some cases may entail,
conviction under section 302 in some cases or under section 304 and in some cases,
under section 326. Acting on this principle in a case where the victim was invited to a,
particular place and there three associates of the accused caught hold of him and the,
"accused delivered a single knife blow on the chest, about which it could not be said",
"that it was not inflicted without premeditation, the Court said that it could not be said",
that the accused had not taken undue advantage. Exception 4 was not attracted.143.,
"Where the accused, who had gone along with the deceased and others, picked up a",
"quarrel with the deceased, entered his house, and came back with a knife and gave",
"blows to the deceased and others who tried to stop them and then ran away, it was",
held that Exception 4 to section 300 was not applicable. Conviction under section 302,
was proper.144. A quarrel took place between a son and his father just outside the son's,
house. The son dragged the father into the Courtyard. His other sons came out to his,
"rescue. The son retreated into the room, bolted it from inside and shot at them from the",
window. One of his brothers received a bullet at his chest and died. The plea of self-,
defence was not accepted. His father and brothers were the eye-witnesses who were,
naturally there for saving the skin of their father. The accused shot at them from the,
bolted security of his room.145.,
A previous quarrel triggered off because of sarcastic remarks made during the,
occasion of a marriage. Three accused started shooting with their respective guns at,
unarmed victims from close range on vital parts of their bodies. The victims had merely,
indulged in verbal duel with them. The accused acted in cruel and unusual manner.,
"Conviction for the offence of murder was held to be proper, Exception 4 being not",
applicable.146.,
[s 300.34] Comparison of Exception 1 (provocation) with Exception 4 (sudden,
fight).—,
"Exception 4 of section 300, IPC, 1860 covers acts done in a sudden fight. The said",
"exception deals with a case of prosecution not covered by the first exception, after",
which its place would have been more appropriate. The exception is founded upon the,
"same principle, for in both there is absence of premeditation. But, while in the case of",
"Exception 1, there is total deprivation of self-control, in the case of Exception 4, there is",
only that heat of passion which clouds men's sober reason and urges them to deeds,
which they would not otherwise do. There is provocation in Exception 4 as in Exception,
"1; but the injury done is not the direct consequence of that provocation. In fact,",
Exception 4 deals with cases in which notwithstanding that a blow may have been,
"struck, or some provocation given in the origin of the dispute or in whatever way the",
"quarrel may have originated, yet the subsequent conduct of both parties puts them in",
respect of guilt upon equal footing. A 'sudden fight' implies mutual provocation and,
blows on each side. The homicide committed is then clearly not traceable to unilateral,
"provocation, nor in such cases could the whole blame be placed on one side. For if it",
"were so, the Exception more appropriately applicable would be Exception 1. There is no",
"previous deliberation or determination to fight. A fight suddenly takes place, for which",
"both parties are more or less to be blamed. It may be that one of them starts it, but if",
"the other had not aggravated it by his own conduct, it would not have taken the serious",
"turn it did. There is then mutual provocation and aggravation, and it is difficult to",
apportion the share of blame which attaches to each fighter. The help of Exception 4,
can be invoked if death is caused (a) without premeditation; (b) in a sudden fight; (c),
without the offender's having taken undue advantage or acted in a cruel or unusual,
manner; and (d) the fight must have been with the person killed. To bring a case within,
"Exception 4, all the ingredients mentioned in it must be found. It is to be noted that the",
"'fight' occurring in Exception 4 to section 300, IPC, 1860 is not defined in the IPC, 1860.",
It takes two to make a fight. Heat of passion requires that there must be no time for the,
"passions to cool down and in this case, the parties have worked themselves into a fury",
on account of the verbal altercation in the beginning. A fight is a combat between two,
and more persons whether with or without weapons. It is not possible to enunciate any,
general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact,
and whether a quarrel is sudden or not must necessarily depend upon the proved facts,
"of each case. For the application of Exception 4, it is not sufficient to show that there",
was a sudden quarrel and there was no premeditation. It must further be shown that,
the offender has not taken undue advantage or acted in cruel or unusual manner. The,
expression 'undue advantage' as used in the provision means 'unfair advantage'.147. In,
"both cases, there is absence of premeditation. But in Exception 1 there is total",
"deprivation of self-control, in case of Exception there is such heat of passion as clouds",
sober reason and urges the man to do something which he would not otherwise do. A,
sudden fight implies mutual provocation and blows on each side. The homicide in such,
"a case is not traceable to unilateral provocation. In such cases, the whole blame cannot",
be attributed to one side. It may be that a fight was initiated by one side but without,
aggravating provocation from the other side it might not have taken the serious turn. A,
situation of mutual provocation and aggravation develops making it difficult to,
apportion the blame between the two sides.148.,
[s 300.35] Exception 5.—Death caused of the person consenting to it.—,
The following reasons are given for not punishing homicide by consent so severely as,
murder:,
"In the first place, the motives which prompt men to the commission of this offence are",
generally far more respectable than those which prompt men to the commission of murder.,
"Sometimes it is the effect of a strong sense of religious duty, sometimes of a strong sense",
"of honour, not unfrequently of humanity. The soldier who, at the entreaty of a wounded",
"comrade, puts that comrade out of pain, the friend who supplies laudanum to a person",
"suffering the torment of a lingering disease, the freed man who in ancient times held out the",
"sword that his master might fall on it, the highborn native of India who stabs the females of",
his family at their own entreaty in order to save them from the licentiousness of a band of,
"marauders, would, except in Christian societies, scarcely be thought culpable, and even in",
"Christian societies would not be regarded by the public, and ought not to be treated by the",
"law, as assassins.149.",
This exception abrogates the rule of English law that a combatant in a fair duel who,
"kills his opponent is guilty of murder. Under this Exception, the person who is killed in a",
"duel ""suffers or takes the risk of death by his own choice."" In applying the Exception, it",
"should first be considered with reference to the act consented to or authorised, and",
"next with reference to the person or persons authorised, and as to each of those some",
degree of particularity at least should appear upon the facts proved before the,
Exception can be said to apply. It must be found that the person killed with a full,
"knowledge of the facts, determined to suffer death, or take the risk of death; and that",
this determination continued up to and existed at the moment of his death.150. The,
consent must have been given unconditionally and without any pre-reservation.151.,
The case supposed in the illustration to Exception 5 is one of the offences expressly,
made punishable by section 305.,
[s 300.36] Death caused by voluntary act of deceased resulting from fear of,
violence.—,
If a man creates in another man's mind an immediate sense of danger which causes,
"such person to try to escape, and in so doing he injures himself, the person who",
"creates such a state of mind is responsible for the injuries which result.152. If, for",
"instance, four or five persons were to stand round a man, and so threaten him and",
"frighten him as to make him believe that his life was in danger, and he were to back",
"away from them and tumble over a precipice to avoid them, their act would amount to",
murder.153.,
[s 300.37] Discovery of body of murdered person not necessary/Absence of,
corpus delicti.—,
"It is well-settled law that in a murder case, to substantiate the case of the prosecution,",
it is not required that dead bodies must have been made available for the identification,
"and discovery of dead body is not sine qua non for applicability of section 299 of IPC,",
1860.154. The mere fact that the body of a murdered person has not been found is not,
a ground for refusing to convict the accused of murder. But when the body is not,
"forthcoming, the strongest possible evidence as to the fact of the murder should be",
insisted on before conviction.155. Such evidence could come from the testimony of,
eye-witnesses or from circumstantial evidence or from both.156. If the prosecution is,
successful in providing cogent and satisfactory proof of the victim having met a,
"homicidal death, absence of corpus delicti will not by itself be fatal to a charge of",
murder.157.,
[s 300.38] Ascertainment of time of death.—,
Judging the time of death from the contents of the stomach may not always be the,
determinative test. It will require due corroboration from other evidence.158.,
"[s 300.39] Single eye-witness, corroboration needed.—",
A child witness (aged 13 years at the time of incident) deposed categorically about the,
"gruesome incident he had witnessed. The Supreme Court held that in such situation, it",
is considered a safe rule of prudence to generally geneally look for corroboration of the,
"sworn testimony of the witness in Court, as to the identity of the accused, who are",
"strangers to them, in the form of earlier identification proceeding.159.",
"[s 300.40] Acquittal of co-accused, effect.—",
Allegation was that the accused along with the juvenile attacked the deceased. Eye,
witness deposed that the juvenile was not involved. Acquittal of the juvenile has no,
effect on the case of others.160. Benefit of acquittal of co-accused cannot be given to,
the main accused.161.,
[s 300.41] Non-production of FIR book.—,
The incident involved assault on villagers and causing of multiple deaths. The injured,
witness gave written complaint in the hospital duly signed by him. The complaint was,
"immediately sent to the police station. On its basis, a printed FIR was registered and a",
copy sent to the magistrate. These circumstances completely ruled out the suggestion,
that the FIR was bogus or doctored. Non-production of the book was due to non-,
"availability. This cannot by itself, invite suspicious glance from the Court or be a ground",
for throwing out the prosecution case.162.,
[s 300.41.1] Ante timed.—,
"The lodging of a First Information Report within 20 minutes of the incident, on the oral",
dictation at the police station which was four furlongs from the place of incident,
creates some doubt about the actual time of lodging of the FIR.163.,
[s 300.42] Delay in FIR.—,
Whether the delay is so long as to draw a cloud of suspicion on the prosecution case,
"will depend upon a variety of factors, which will vary from case to case.164. Where the",
occurrence took place in the late night in a remote village and the sufferers of the,
"incident were the widow and her two minor children, apart from the fact that the police",
"station was one and a half kilometres away, the delay in registering FIR on the next day",
is proper.165.,
[s 300.43] Strange behaviour of the complainant.—,
"Where the incident of murder occurred inside the forest, while some friends of the",
complainant were participating in a party and the informant/eye-witness instead of,
going to the police station went to the house of an Advocate. The Supreme Court found,
that it appeared to be a very strange behaviour on the part of the complainant and so,
"many of his friends who were with him to go to an Advocate, that too 15 kms away,",
rather than approaching the Police Station to report the matter.166.,
[s 300.44] Motive.—,
It is fairly well settled that while motive does not have a major role to play in cases,
"based on eye-witness account of the incident, it assumes importance in cases that rest",
entirely on circumstantial evidence.167. Where other circumstances lead to the only,
"hypothesis that the accused has committed the offence, the Court cannot acquit the",
accused of the offence merely because the motive for committing the offence has not,
been established in the case.168. If depositions giving the eye-witness account of,
"incident that led to death of deceased are reliable, absence of a motive would make",
"little difference.169. When there is an eye-witness account on record, the absence of",
motive pales into insignificance.170.,
[s 300.45] Last seen together.—,
It is trite law that a conviction cannot be recorded against the accused merely on the,
ground that the accused was last seen with the deceased.171. There may however be,
"cases where, on account of close proximity of place and time between the event of the",
"accused having been last seen with the deceased and the factum of death, a rational",
mind may be persuaded to reach an irresistible conclusion that either the accused,
should explain how and in what circumstances the victim suffered the death or should,
"own the liability for the homicide.172. But in Arabindra Mukherjee v State of WB,173.,174.",
"it was held that once the accused was last seen with the deceased, the onus is upon",
him to show that either he was not involved in the occurrence at all or that he had left,
the deceased at her home or at any other reasonable place. To rebut the evidence of,
"last seen and its consequences in law, the onus was upon the accused to lead",
"evidence in order to prove his innocence. In C Perumal v Rajasekaran,175.,176. there was",
a time lag of two days in last seen together of A2– A5 with the deceased and Court,
found it difficult to connect them with the incident. Where the accused was last seen,
"together with the deceased by his wife, but the prosecution could not establish the",
"cause of death, the accused was not convicted based on the last seen theory.177.",
The circumstance of last seen together does not by itself and necessarily lead to the,
inference that it was the accused who committed the crime. There must be something,
more establishing the connectivity between the accused and the crime. Mere non-,
"explanation on the part of the accused by itself, cannot lead to proof of guilt against",
the appellant.178. Where it was found that the deceased was in the company of the,
accused prior to one week of the post-mortem of the deceased and it was also found,
"through the post-mortem that the murder was about one week ago, the Court held that",
the last seen theory applies.179.,
Where there was a clear gap of 51 hours and 45 minutes between the time when the,
"victim was last seen in the company of the accused and the time of his death, it was",
held that this time gap was too wide to act upon the last seen theory.180.,
[s 300.45.1] Co-accused.—,
Merely because two persons have been acquitted that benefit cannot be extended to,
others in view of the direct evidence establishing their presence and participation in the,
crime.181.,
[s 300.46] Plea of alibi.—,
"While weighing the plea of 'alibi', the same has to be weighed against the positive",
evidence led by the prosecution.182.,
"31. Santosh v State, 1975 Cr LJ 602 : AIR 1975 SC 654 [LNIND 1975 SC 50] ; See also Sehaj",
"Ram, 1983 Cr LJ 993 (SC) : AIR 1983 SC 614 [LNIND 1983 SC 90] : (1983) 3 SCC 280 [LNIND",
"1983 SC 90] . There should be causal connection between death and injury, not proved where",
"death ensued 13 days after the alleged injury by the deceased woman's husband, Imran Khan v",
"State of MP, (1995) 1 Cr LJ 17 (MP).",
"32. Govinda, (1876) 1 Bom 342; Shankar Narayan Bhadolkar v State of Maharashtra, AIR 2004 SC",
"1966 [LNIND 2004 SC 1370] : 2004 Cr LJ 1778 , distinguish between culpable homicide and",
"murder restated, nature of mens rea required in two provisions also explained.",
"33. State of AP v R Punnayya, 1977 Cr LJ 1 : AIR 1977 SC 45 [LNIND 1976 SC 331] ; Kalaguru",
"Padma Rao v State of AP, (2007) 12 SCC 48 [LNIND 2007 SC 179] : AIR 2007 SC 1299 [LNIND",
"2007 SC 179] , distinction between sections 299 and 300 restated. Sunder Lal v State of",
"Rajasthan, (2007) 10 SCC 371 [LNIND 2007 SC 599] ; Abbas Ali v State of Rajasthan, (2007) 2",
"SCC 129 : AIR 2007 SC 1239 [LNIND 2007 SC 165] : 2007 Cr LJ 1667 , distinction restated.",
"34. Laxminath v State of Chhattisgarh, AIR 2009 SC 1383 [LNIND 2009 SC 58] : (2009) 3 SCC",
"519 [LNIND 2009 SC 58] ; Budhi Lal v State of Uttarakhand, AIR 2009 SC 87 [LNIND 2008 SC",
1928] : (2008) 14 SCC 647 [LNIND 2008 SC 1928] ; Abdul Waheed Khan Waheed v State of,
"Andhra Pradesh, JT 2002 (6) SC 274 [LNIND 2002 SC 530] ; Augustine Saldanha v State of",
"Karnataka, 2003 (10) SCC 472 [LNIND 2003 SC 709] ; Thangaiya v State of TN, 2005 (9) SCC 650",
"[LNIND 2004 SC 1221] and Sunder Lal v State of Rajasthan, 2007 (10) SCC 371 [LNIND 2007 SC",
599] .,
"35. Ajit Singh v State of Punjab, (2011) 9 SCC 462 [LNIND 2011 SC 844] .",
"36. Rampal Singh v State of UP, 2012 Cr LJ 3765 : (2012) 8 SCC 289 [LNIND 2012 SC 425] .",
"37. State of Orissa v Raja Parida, 1972 Cr LJ 193 199 (Ori). Gurmej Singh v State of Punjab, AIR",
"1992 SC 214 [LNIND 1991 SC 301] : 1992 Cr LJ 293 : 1991 Supp (2) SCC 75 , discussing how",
evidence in criminal cases is to be appreciated. Other cases giving guidelines for appreciation,
"of evidence for purposes of section 300 are State of UP v Ram Chandra, 1992 Cr LJ 418 All",
"(doubtful evidence); Anokh Singh v State of Punjab, AIR 1992 SC 598 : 1992 Cr LJ 525 : 1992",
"Supp (1) SCC 426 (improbable evidence, delay in lodging FIR); State of Karnataka v Venkatesh,",
AIR 1992 SC 674 : 1992 Cr LJ 707 (prosecution witness not inspiring confidence). See also,
"Sakharam v State of MP, AIR 1992 SC 758 [LNIND 1992 SC 157] : 1992 Cr LJ 861 , a boy of 16–",
17 years of age lived alone with the deceased woman in a single-room house some eight days,
"before the incident, woman killed by gun-shot injuries, the boy acquitted because there was no",
"other evidence than that of living together; Peddireddy Subbareddi v State of AP, 1991 Cr LJ 1391",
": AIR 1991 SC 1356 , gap of 15 hours in lodging FIR, the sole eye-witness not telling the fact to",
"any of the villagers. Acquittal on benefit of doubt. Gangotri Singh v State of UP, AIR 1992 SC 948",
": 1992 Cr LJ 1290 , where the dying declaration was clear in reference, but did not even mention",
"the names of the other accused with whom the deceased was on enmity, conviction of the",
named accused alone was held to be proper.,
"Acquittals.—Varun Chaudhary v State of Rajasthan, 2011 Cr LJ 675 : AIR 2011 SC 72 [LNIND",
2010 SC 1067] : (2011) 12 SCC 545 [LNIND 2010 SC 1067] ; the recovered knife was never,
produced before the court and was never shown to the accused; scanty evidence; conviction set,
"aside; State Through CBI v Mahender Singh Dahiya, (2011) 3 SCC 109 [LNIND 2011 SC 114] : AIR",
"2011 SC 1017 [LNIND 2011 SC 114] : 2011 Cr LJ 2177 , circumstances relied on do not connect",
"the accused, accused acquitted. Allarakha K Mansuri v State of Gujarat, AIR 2002 SC 1051",
"[LNIND 2002 SC 119] , defective investigation should not be made a ground of acquittal by itself.",
The setting aside of acquittal by the High Court was held to be proper. Chander Pal v State of,
"Haryana, AIR 2002 SC 989 [LNIND 2002 SC 105] , acquittal because of unsatisfactory evidence,",
"State of Haryana v Ram Singh, AIR 2002 SC 620 [LNIND 2002 SC 32] , largely on matters of",
"evidence, such as gap between medical and eye-witness account, relative witness not to be",
"rejected for that reason alone, defence witnesses are entitled to equal treatment with those of",
"the prosecution. Panchdeo Singh v State of Bihar, AIR 2002 SC 526 [LNIND 2001 SC 3070] ,",
"acquittal because of unreliable dying declaration. Surendra Singh v State of Bihar, AIR 2002 SC",
"260 [LNIND 2001 SC 2701] , firing at the inmates of a car, one killed, one injured. The injured eye-",
witness identified the assailant at the test identification parade but had stated at the stage of,
the FIR that could not recognise him. Conviction of the accused was set aside. Thanedar Singh v,
"State of MP, AIR 2002 SC 175 [LNIND 2001 SC 2451] , killing at night, no moonlight, no",
"identification of killers, High Court not justified in reversing acquittal. RV Chacko v State of",
"Kerala, AIR 2001 SC 537 [LNIND 2000 SC 1797] , acquittal because no proper proof. Durbal v",
"State of UP, (2011) 2 SCC 676 [LNIND 2011 SC 100] : AIR 2011 SC 795 [LNIND 2011 SC 100] :",
"2011 Cr LJ 1106 ; presence of eyewitness doubtful, acquitted; Prahlad Singh v State of MP, 2011",
"(8) Scale 105 [LNIND 2011 SC 1086] : 2011 Cr LJ 4366 , possibility that these three accused",
roped in on account of animosity cannot be ruled out and given them the benefit of doubt on,
"that score. Surendra Pratap Chauhan v Ram Naik, AIR 2001 SC 164 [LNIND 2000 SC 1521] : 2001",
"Cr LJ 98 , murder in village groupism real killers could not be identified and other failures of",
"proof, acquittal, Jagdish v State of MP, AIR 2000 SC 2059 [LNIND 2000 SC 842] : 2000 Cr LJ",
"2955 , acquittal of one accused because of uncertainty in technical as well as general evidence,",
conviction of the other because of the case proved against him.,
"Shaikh Umar Ahmed Shaikh v State of Maharashtra, AIR 1998 SC 1922 [LNIND 1998 SC 498] :",
"1998 Cr LJ 2534 , strong possibility of the accused being shown to the witnesses before",
"identification in court, conviction set aside because the identification was the basis of the",
"conviction. Bhola Singh v State of Punjab, AIR 1999 SC 767 [LNIND 1998 SC 1050] : 1999 Cr LJ",
"1132 , acquittal because the presence of the witnesses on the spot became doubtful, their",
testimony seemed to have been tailored in accordance with the post-mortem report. Delayed,
"test identification parade. Accused acquitted: State of Maharashtra v Syed Umar Sayed Abbas,",
"2016 Cr LJ 1445 : 2016 (3) SCJ 77 . Vijayan v State of Kerala, AIR 1999 SC 1086 [LNIND 1999 SC",
"159] : 1999 Cr LJ 1638 , acquittal, because photographs were published and, therefore,",
identification evidence became useless and dying declaration was also unreliable. Mohd. Zahid,
"v State of TN, AIR 1999 SC 2416 [LNIND 1999 SC 593] : 1999 Cr LJ 2699 , acquittal because eye-",
witnesses and the doctor both found to be not reliable. Hargovandas Devrajbhai Patel v State of,
"Gujarat, AIR 1998 SC 370 [LNIND 1997 SC 1443] : 1998 Cr LJ 662 (SC), no proof that the police",
"officer caused death of the deceased in police custody. Acquittal Omwati v Mahendra Singh, AIR",
"1998 SC 249 [LNIND 1997 SC 91] , 250 : 1998 Cr LJ 401 , acquittal because no proper",
"investigation and evidence. Daljit Singh v State of Punjab, AIR 1999 SC 324 : 1999 Cr LJ 454 ,",
"acquittal because of false witnesses. Din Dayal v Raj Kumar, AIR 1999 SC 537 : 1999 Cr LJ 487 ,",
accused acquitted because witnesses not truthful. Tanviben Pankaj Kumar Divetia v State of,
"Gujarat, AIR 1997 SC 2193 [LNIND 1997 SC 803] : 1997 Cr LJ 2535 , no evidence to lead to",
"irresistible conclusion about complicity of the accused in causing murder, conviction on",
"surmises and conjectures set aside. Mohd Aman v State of Rajasthan, AIR 1997 SC 2960 : 1997",
"Cr LJ 3567 , not proper handling of finger-print evidence, conviction not proper. Shahbad Pall",
"Reddy v State of AP, AIR 1997 SC 3087 [LNIND 1997 SC 1096] : 1997 Cr LJ 3753 , murder alleged",
"to be by 26 persons, no proper investigation, acquittal. Harkirat Singh v State of Punjab, AIR 1997",
"SC 3231 [LNIND 1997 SC 988] : 1997 Cr LJ 3954 , material contradictions in statements of",
"witnesses, other irregularities, acquittal. Sahib Singh v State of Haryana, AIR 1997 SC 3247",
"[LNIND 1997 SC 1005] : 1997 Cr LJ 3956 , delayed FIR, highly interested witnesses, confession",
"not truthful, conviction liable to be set aside. State of UP v Bhagwan, AIR 1997 SC 3292 : (1997)",
"11 SCC 19 , acquittal because of unreliable eye-witnesses. B Subba Rao v Public Prosecutor, AIR",
"1997 SC 3427 [LNIND 1997 SC 1065] : 1997 Cr LJ 4072 , because the source of light through",
"which identification was possible not proved Rambilas v State of MP, AIR 1997 SC 3954 [LNIND",
"1997 SC 1302] : 1997 Cr LJ 4649 , a notorious person murdered on the day of a festival and",
"body thrown into a tank, eye-witnesses not likely because of the festival, that is why were not",
"real there could be other possible killers, acquittal. Paramjit Singh v State of Punjab, AIR 1997 SC",
"1614 [LNIND 1996 SC 2101] : (1997) 4 SCC 156 [LNIND 1996 SC 2101] , two types of evidence,",
"last seen together and dying declaration, both found not reliable. Acquittal, Jaspal Singh v State",
"of Punjab, AIR 1997 SC 332 [LNIND 1996 SC 1648] : 1997 Cr LJ 370 , confession and",
"identification evidence week, acquittal. Devinder v State of Haryana, AIR 1997 Sc 454 [LNIND",
"1996 SC 1460] : 1996 Cr LJ 4461 , acquittal because of benefit of doubt. Chander Pal v State of",
"Haryana, 2002 Cr LJ 1481 (SC), quarrel in the course of playing game of ludo, murder, no proper",
"evidence, acquittal. Bijoy Singh v State of Bihar, 2002 Cr LJ 2623 : AIR 2002 SC 1949 [LNIND",
"2002 SC 300] , prosecution for murder and attempt to murder, 12 persons were convicted, but",
"there was no proper investigation, acquittal. State of AP v Kowthalam Chinna Narasimhulu, 2001",
"Cr LJ 722 (SC), political rivalry, murder, unreliable witnesses, acquittal. State of MP v Surpa, 2001",
"Cr LJ 3290 (SC), contradictions in evidence, wife of the victim not disclosing the incident to any",
"one till the next day, acquittal.",
"Kanhai Mishra v State of Bihar, 2001 Cr LJ 1258 (SC), rape and murder, acquittal, Dhanjibhai v",
"State of Gujarat, 2001 Cr LJ 1587 (Guj), another case of being killed by burns, but no proof of",
"involvement of the accused husband. Sohan v State of Haryana, 2001 Cr LJ 1707 (SC), only",
"interested witness examined, no independent witness examined though available, conviction set",
"aside. State of Rajasthan v Teja Singh, 2001 Cr LJ 1176 (SC), no corroboration of evidence of",
"interested eye-witness, acquittal proper. Kalyan v State of UP, 2001 Cr LJ 4677 (SC), acquittal",
"because of poor state of evidence. State of Delhi, 2001 Cr LJ 61 (Del) acquittal from the charge",
"of raping and killing one's daughter poor evidence. Sudama Pandey v State of Bihar, 2002 Cr LJ",
"582 (SC), acquittal because of no proper evidence. Gurucharan v State of UP, 2000 Cr LJ 4560",
"(All), accused persons alleged to have entered a bus, fired at passengers and used knives, death",
"of two caused, acquitted under benefit of doubt. Ajab Singh v State of UP, 2000 Cr LJ 1809 :",
"(2000) 3 SCC 521 [LNIND 2000 SC 2011] , order by Supreme Court of investigation by CBI.",
"Chhannoo Lal v State of UP, 2000 Cr LJ 2787 (All), killing of wife and children, but prosecution",
"could prove nothing, husband acquitted. Referring Officer v Tiringhly, 2000 Cr LJ 2569 (AP),",
"murder of a priest of a temple, and throwing away the body into a pond. The court found it to be",
a case of no evidence. Conviction of the accused and sentence of death set aside. State of,
"Punjab v Kulwant Singh, 2000 Cr LJ 2692 (P&H), triple murder, accused acquitted because of",
"prosecution failures. Dinesh v State of Haryana, AIR 2002 SC 3474 : 2002 Cr LJ 2970 (SC),",
acquittal because of inconsistent evidence and weapons not produced. Mahabir Singh v State of,
"Haryana, 2001 Cr LJ 3945 (SC), sole eye-witness contradicting himself acquittal. State of",
"Rajasthan v Chhote Lal, 2012 AIR (SCW) 1159 : 2012 Cr LJ 1214 , sole eye witness turned hostile,",
"acquittal confirmed; Javed Masood v State of Rajasthan, AIR 2010 SC 979 [LNIND 2010 SC 214] :",
(2010) 3 SCC 538 [LNIND 2010 SC 214] : (2010) 3 SCR 236 [LNIND 2010 SC 214] : 2010 Cr LJ,
"2020 , presence of eye witness doubtful, conviction set aside. Jiten Besra v State of WB, AIR",
"2010 SC 1294 [LNIND 2010 SC 224] : (2010) 3 SCC 675 [LNIND 2010 SC 224] : 2010 Cr LJ 2032 ,",
all the alleged incriminating circumstances could not be said to have been established; accused,
"is entitled to benefit of doubt. Gajula Surya Prakasarao v State of AP, (2010) 1 SCC 88 [LNIND",
"2009 SC 1973] : 2010 Cr LJ 2102 : AIR 2010 SC (Supp) 181, eye witness did not name the",
"accused in the statement, accused acquitted; Jaipal v State, 1998 Cr LJ 4085 : AIR 1998 SC",
"2787 [LNIND 1999 PNH 698] , murder, persons accused not shown to be guilty, acquittal. State",
"of HP v Dhani Ram, 1997 Cr LJ 214 : 1997 SCC (Cr) 244 (SC), the only proof was that of motive,",
"but there was no other evidence, acquittal. Gurprit Singh v State of Punjab, AIR 2002 SC 2390 ,",
"TADA offender, murder, charged, not proved, acquittal. Nasim v State of UP, 2000 Cr LJ 3329",
"(All), arsenic poison mixed in pulse drink, six persons lost life, but who mixed not clear, act of",
"persons other than cook not ruled out, acquittal. Deva v State of Rajasthan, 1999 Cr LJ 265 : AIR",
"1999 SC 214 [LNIND 1998 SC 1402] , murder by accused not proved, acquittal. Surinder Kumar v",
"State of Punjab, 1999 Cr LJ 267 : AIR 1999 SC 215 [LNIND 2012 SC 879] , veterinary surgeon",
"killed, accused acquitted because his guilt could not be proved. Bhupinder Singh v State of",
"Punjab, 1999 Cr LJ 396 (SC), death probably in encounter firing, constable acquitted. State of HP",
"v Rakesh Kumar, 1999 Cr LJ 564 (HP), acquittal. Ashok Kumar v State of Bihar, 1999 Cr LJ 599",
"(SC), murder of morning walker, dying declaration, not reliable, no other evidence, acquittal.",
"Paras Yadav v State of Bihar, 1999 Cr LJ 1122 : AIR 1999 SC 644 [LNIND 1999 SC 17] ,",
"participation of accused in murder not proved, acquittal. Chandregowda v State of Karnataka,",
"1999 Cr LJ 1719 (Kant), child sacrificed to death by throttling for the purpose of learning black",
"magic, doctor's certificate of schizophrenia, only evidence was admission of guilt under section",
"313, Cr PC, 1973. Held, conviction not possible on that basis alone. Ahmed Bin Salam v State of",
"AP, 1999 Cr LJ 2281 : AIR 1999 SC 1617 , conviction set aside because of failure of evidence;",
"State of UP v Kapildeo Singh, 1999 Cr LJ 2594 : AIR 1999 SC 1783 [LNIND 1999 SC 140] ,",
"accused, alleged to have entered Kutia of their victim at mid night to settle land dispute and",
"assaulted him with sharp instruments to death, but no proof, acquittal. Balbir Singh v State of",
"Punjab, 1999 Cr LJ 4076 : AIR 1999 SC 3227 [LNIND 1999 SC 718] , acquittal because of no",
"proof. Vithal Tukaram More v State of Maharashtra, AIR 2002 SC 2715 [LNIND 2002 SC 449] :",
"2002 Cr LJ 3546 , acquittal because of unreliable evidence. Mathura Yadav v State of Bihar, AIR",
"2002 SC 2707 [LNIND 2002 SC 447] : 2002 Cr LJ 3538 , glaring discrepancies in evidence of eye-",
"witnesses, acquittal; BL Satish v State of Karnataka, 2002 Cr LJ 3508 (SC), grandson was",
charged of strangulating his grandmother to death. The only circumstance against him was his,
"statement that ornaments were kept in his maternal grand father's house, acquittal; Thangavelu",
"v State of TN, 2002 Cr LJ 3558 (SC), false evidence case demolished by medical report as to",
time of death.,
"Pandit Ram Prakash Sharma v Khairati Lal, 1998 Cr LJ 1410 : AIR 1998 SC 2820 , unreliable",
"witnesses, acquittal. Prem Prakash Mundra v State of Rajasthan, 1998 Cr LJ 1620 : AIR 1998 SC",
"1189 [LNIND 1998 SC 133] , murder of child, accused could not be connected with it. State of",
"Rajasthan v Mahaveer, 1998 Cr LJ 2275 (SC), enmity between parties, but nothing could be",
"proved. Kochu Maitheen Kannu Salim v State of Kerala, 1998 Cr LJ 2277 (SC), conduct of eye-",
"witnesses did not inspire confidence, acquittal. State of Punjab v Karnail Singh, 1998 Cr LJ 2556 :",
"AIR 1998 SC 1936 [LNIND 1998 SC 307] , death of five persons by gun shots, no evidence as to",
"who caused whose death, defence version that the accused acted in self-defence was",
"supported by evidence, acquittal. Jaipal v State (UT of Chandigarh), 1998 Cr LJ 4085 : AIR 1998",
"SC 2787 [LNIND 1999 PNH 698] , considered acquittal by the trial judge, setting aside by the",
High Court merely because a different view of the evidence was also possible was not proper;,
"Kaptan Singh v State of MP, acquittal solely on the basis of investigation, held patently wrong;",
"State of HP v Dhani Ram, 1997 Cr LJ 214 : AIR 1996 SCW 4055 , acquittal upheld; Roshan Singh v",
"State of UP, 1997 Cr LJ 256 (All), acquittal because of benefit of doubt; Darshan Singh v State of",
"Punjab, 1997 Cr LJ 370 : AIR 1970 SC 332 , accused not properly identified, confession of guilt",
"not found reliable, acquittal.",
"Kuldip Singh v State of Punjab, 2002 Cr LJ 3944 : AIR 2002 SC 3023 [LNIND 2002 SC 498] ,",
"murder of the wife and daughter of informant, but the accused could not be connected with it,",
"acquittal; Dhananjay Shanker Shetty v State of Maharashtra, 2002 Cr LJ 3729 (SC), circumstantial",
evidence of murder by history sheeter. But no proof. The accused was arrested in injured,
"condition. No explanation, acquittal. Toran Singh v State of MP, 2002 Cr LJ 3732 (SC), material",
"contradictions and omissions in statements of witness. Muthu v State of Karnataka, 2002 Cr LJ",
"3782 (SC), no evidence to connect the accused with the murder, close scrutiny of evidence",
disclosed hollowness of prosecution case. Accused entitled to benefit of doubt. Balu Sonba,
"Shinde v State of Maharashtra, AIR 2002 SC 3137 [LNIND 2002 SC 552] , deposition of a witness",
"on whom the prosecution story hinged was found partly improbable, the evidence of hostile",
witness was rather found more normal and natural. Accused entitled to benefit of doubt.,
"Ashish Batham v State of MP, AIR 2002 SC 3206 [LNIND 2002 SC 556] , failure in love affair",
"alleged to be motive for murder, acquitted because of lack of credibility in evidence. Raghunath v",
"State of Haryana, AIR 2003 SC 165 [LNIND 2002 SC 703] : 2003 Cr LJ 401 , group rivalry,",
"accused persons entered the house of their victim and caused death, but evidence doubtful, the",
"witnesses, while taking the injured to hospital, did not file report even when they crossed two",
"police stations, acquittal. Jasbir v State of Haryana, AIR 2003 SC 554 [LNIND 2002 SC 805] :",
"2003 Cr LJ 826 , there were lathi injuries on the person of the deceased, lathi wielding accused",
"were acquitted. State of Karnataka v AB Nagaraj, AIR 2003 SC 666 [LNIND 2002 SC 783] : 2003",
"Cr LJ 848 , allegation that the daughter was killed by her father and step-mother. Witnesses who",
saw them in the national park could not be believed because they were working behind bushes.,
The theory of the accused parents that they were looking for their daughter seemed to be,
"probable. There was no history of bad treatment, acquittal; Kantilal v State of Gujarat, AIR 2003",
"SC 684 [LNIND 2002 SC 789] : 2003 Cr LJ 850 , prosecution case was that the accused stole",
gold ornaments of the victim woman and murdered her. The facts that he had given the,
ornaments and ingot to a jeweller for melting were not established. Link in the chain of,
"circumstances missing, acquittal. Bhim Singh v State of Haryana, AIR 2003 SC 693 [LNIND 2002",
"SC 793] : 2003 Cr LJ 857 , acquittal because of uncorroborated and controverted evidence. State",
"of UP v Arun Kumar Gupta, AIR 2003 SC 801 [LNIND 2003 SC 9] : 2003 Cr LJ 894 , except for",
"being indebted to the deceased, other evidence to connect the accused with the murder was",
"nullity, acquittal. Lallu Manjhi v State of Jharkhand, AIR 2003 SC 854 [LNIND 2003 SC 3] : 2003 Cr",
"LJ 914 , land dispute, but who was in possession not properly proved, interested eye-witness not",
"corroborated. No conviction on sole testimony. Zafar v State of UP, AIR 2003 SC 931 [LNIND",
"2003 SC 41] : 2003 Cr LJ 1218 , sole child witness, examined after four to five days probably",
"because another eye-witness had backed out. Not reliable. No conviction. Jai Pal v State of UP,",
AIR 2003 SC 1012 [LNIND 2003 SC 134] : 2003 Cr LJ 1243 eye-witness in examination-in-chief,
"did not name the accused, in cross-examination he named him among so many others, but no",
"overt act attributed, delay in examining witnesses not explained, identification of dead body",
"doubtful, acquittal. Bhagwan Singh v State of MP, AIR 2003 SC 1088 [LNIND 2003 SC 82] : 2003",
"Cr LJ 1262 , mother killed by assailants, six-year-old child sleeping with her, testified that after",
"seeing his mother being assaulted, he went to sleep again, no TI parade held, the conduct of the",
"father was also unnatural, he did not enquire anything from the child before lodging the FIR,",
"sending civil disputes between the accused and the deceased was found to be weak cause,",
"acquittal. Shailendra Pratap v State of UP, AIR 2003 SC 1104 [LNIND 2003 SC 6] : 2003 Cr LJ",
"1270 , another case of acquittal because of weak links in evidence. Kanwarlal v State of MP,",
"2003 Cr LJ 82 (SC), the allegation that the victim was assaulted by several accused persons in",
"free fight with axes and spears. But no cut injuries except one on head, conviction of one",
"accused for murder not sustainable. Mohan Singh v Prem Singh, 2003 Cr LJ 11 : AIR 2003 SC",
"3582 , failure of evidence on all points in the trial for murder, defence version more probable,",
"acquittal. Nabab Khan v State of MP, 2003 Cr LJ 94 (MP), sole eye-witness, other factors of",
"evidence not reliable, casting doubt upon sole-witness account, acquittal. This was an attack on",
the whole family. Four members were killed. The sole eye-witness who survived with injuries,
was not medically examined and false explanations were submitted for the same. Jai Narain v,
"State of UP, 2000 Cr LJ 168 (All), evidence of homemates of the deceased contradictory, no",
"independent witness, motive that they were working as police informers not proved, unexplained",
"delay in medical examination of deceased, defence version more probable, acquittal. Narendra",
"Singh v State of UP, 2003 Cr LJ 205 (All), killing of man's wife, his son and nephew, proof against",
"the alleged killers not substantiated, acquittal. Moti v State of UP, 2003 Cr LJ 1694 : AIR 2003 SC",
"1897 [LNIND 2003 SC 302] , serious difference in family evidence and medical evidence,",
"uncertainty benefit of doubt. Suresh Chaudhary v State of Bihar, 2003 Cr LJ 1717 : AIR 2003 SC",
"1981 [LNIND 2003 SC 289] , presence of eye-witness at the site of three murders, time of death,",
"time of lodging FIR doubtful, medical evidence showing use of explosive bomb, eye-witness did",
"not mention it, acquittal. State of Punjab v Sucha Singh, 2003 Cr LJ 1210 : AIR 2003 SC 1471",
"[LNIND 2003 SC 177] , murder in revenge, eye-witness father of the deceased, but rendered no",
"help at rescue, his presence at the spot became doubtful, other witnesses also not reliable,",
"conviction set aside. Bharat v State of MP, 2003 Cr LJ 1297 (SC), circumstantial evidence, chain",
"not complete, murder for robbery, recovery of doubtful value, extra-judicial confession, not",
"reliable, acquittal. State of UP v Dharamraj, 2003 Cr LJ 1522 : AIR 2003 SC 1589 [LNIND 2003 SC",
"206] , eye-witnesses gave different version of the weapons used, acquittal. Rajeevan v State of",
"Kerala, 2003 Cr LJ 1572 : AIR 2003 SC 1813 , accusation due to political bitterness, acquittal.",
"Baldev Singh v State of MP, 2003 Cr LJ 880 : AIR 2003 SC 2098 [LNIND 2003 SC 2] , improbability",
"of murder by accused, acquittal. Sambhunath v State of WB, 2003 Cr LJ 975 (Cal), conviction set",
"aside because the chain of circumstances was not complete. Shankar Singh v State of UP, 2003",
"Cr LJ 1095 (All), killed with gunshot injury, delay in lodging FIR, conduct of eye-witnesses",
"unnatural, acquittal. State of UP v Krishna Pal, 2003 Cr LJ 1115 (All), a man and his son killed,",
"evidence of his wife and daughter found to be self-contradictory, acquittal. Suresh B Nair v State",
"of Kerala, 2003 Cr LJ 1152 (Ker), the accused killed his victim with a piece of stone, the eye-",
"witness did not know him before, identification parade not held, the identification by the",
"witnesses was not corroborated, acquittal. Raghunath v State of Haryana, 2003 Cr LJ 401 (SC),",
"failure of the prosecution case. Ganga Singh v State of UP, 2003 Cr LJ 653 (All), failure of",
"prosecution to connect points. Brijpal Singh v State of MP, AIR 2003 SC 2460 [LNIND 2003 SC",
"485] , confusion caused by witnesses as to killing by gunshots, ballistic opinion contradicted",
"eye-witnesses, benefit of doubt. State of UP v Dharamraj, AIR 2003 SC 1589 [LNIND 2003 SC",
"206] , witnesses spoke of different instruments of murder, FIR ante-timed, acquittal. Moti v State",
"of UP, AIR 2003 SC 1897 [LNIND 2003 SC 302] , time of occurrence of murder, post-mortem",
report as to state of food in the stomach contradicted by the statements of family members as,
"to time of food intake, time of killing became uncertain and resulted in acquittal. State of MP v",
"Mishrilal, 2003 Cr LJ 2312 (SC), the prosecution suppressed the true genesis of the incident, in",
"fact the prosecution party were the aggressors, they did not explain anything about injuries",
"received by three accused persons, one of whom was seriously injured, every detail of the",
prosecution case was found to be doubtful. Acquittal of accused persons. Khima Vikamshi v,
"State of Gujarat, 2003 Cr LJ 2025 (SC), allegation that the accused killed the deceased in the",
"presence of his pardanashin daughter in law, which was itself a doubtful fact and her",
"statements were also not reliable, there were no blood stains on her clothes, acquittal. Sadhu",
"Ram v State of Rajasthan, 2003 Cr LJ 2331 (SC), death of woman alongwith her eight-month-old",
"daughter, two versions possible, accidental burning or intentionally set on fire, witness not clear,",
"no reliance on such witness, acquittal. State of UP v Bhagwani, 2003 Cr LJ 2337 (SC), blood-",
"stained earth not collected, independent witnesses not called, doubt about place of happening,",
acquittal.,
Appeal against acquittal.—Acquittal on the charge of murder of child because of denial of,
"inheritance, conviction by High Court, upheld by Supreme Court; Swami Prasad v State of MP,",
"(2007) 13 SCC 25 [LNIND 2007 SC 293] ; Shaik China Brahmam v State of AP, (2007) 14 SCC 457",
"[LNIND 2007 SC 1388] : AIR 2008 SC 610 [LNIND 2007 SC 1388] , acquittal by the trial court",
"reversed by the High Court, conviction by High Court upheld by Supreme Court; Malleshappa v",
"State of Karnataka, (2007) 13 SCC 399 [LNIND 2007 SC 1112] : AIR 2008 SC 69 [LNIND 2007 SC",
"1112] , conviction found to be unsustainable in the circumstances of the case; Sunny Kapoor v",
"State (UT of Chandigarh), 2006 Cr LJ 2920 (SC), circumstantial evidence with glaring",
"discrepancies, conviction not upheld.",
"Convictions.—State of Punjab v Jugraj Singh, AIR 2002 SC 1083 [LNIND 2002 SC 118] , acquittal",
"set aside, minor irregularities in evidence not to be over weighed. Prakash Dhawal Khairnar v",
"State of Maharashtra, AIR 2002 SC 340 [LNIND 2001 SC 2841] , the accused wiped out his",
"brother with family in order to prevent partition, the confessional statement of his son who had",
"seen multiple murders, alongwith other circumstances, established guilt, conviction. Rama",
"Mangaruji Chacherkar v State of Maharashtra, AIR 2002 SC 283 [LNIND 2001 SC 2771] , dispute",
"between brothers over distribution of agricultural produce, death of the brother caused by",
hurling a hand grenade at him. The wife of the deceased testified that she did not see throwing,
of bomb but her evidence showed that she had seen the whole incident. Conviction not,
"interfered with. Brij Lal v State of Haryana, (2002) SC 291 : 2002 Cr LJ 581 , minor difference in",
"the eye-witness version and medical evidence as to in which part of the head the bullet struck,",
"conviction maintained. Meharban Singh v State of MP, AIR 2002 MP 299 : 2002 Cr LJ 586 (SC)",
"villagers taking injured in bullock cart to hospital, death on the way, the injured person before his",
"death told them about his assailant, reliable, conviction, no interference. Majid v State of",
"Haryana, AIR 2002 SC 382 [LNIND 2001 SC 2827] , minor son of the deceased found to be",
"natural and reliable witness, conviction upheld. Sewaka v State of MP, AIR 2002 MP 50 : 2002 Cr",
"LJ 205 , murder of husband, wife grappled with killers but they escaped, moonlight",
"identification, conviction maintained. Majju v State of MP, AIR 2001 SC 2930 [LNIND 2001 SC",
"2409] : 2001 Cr LJ 4762 , eye-witness account of the way in which the accused gave farsa (axe)",
"blows to the deceased found to be wholly trustworthy, post-mortem report that there were no",
incised wounds was not allowed to overthrow the genuine eye-witness account. Conviction,
"maintained. Harisingh M Vasava v State of Gujarat, 2002 Cr LJ 1771 (SC), another case of",
"conviction because of good evidence. Rajesh v State of Gujarat, 2002 Cr LJ 1821 (SC),",
conviction on the strength of technical evidence finger prints expert. Ram Kumar Laharia v State,
"of MP, AIR 2001 SC 556 [LNIND 2001 SC 76] : 2001 Cr LJ 712 , 11-year-old boy put into touch",
"with live electric wire and then threw into water alongwith the wire, conviction for murder.",
"Sambasivan v State of Kerala, AIR 1998 SC 2107 [LNIND 1998 SC 556] : 1998 Cr LJ 2924 , rival",
"trade unionists, one of them threw bombs on the members of the other, evidence of the",
"members of the victim union acceptable, conviction. Umesh Singh v State of Bihar, AIR 2000 SC",
"2111 [LNIND 2000 SC 871] : 2000 Cr LJ 6167 , the accused tried to take away paddy from the",
"thrashing floor. On resistance, came out with lathi blows and gun shots, killing one person,",
"convicted for murder. Swaran Singh v State of Punjab, AIR 2000 SC 2017 [LNIND 2000 SC 734] :",
"2000 Cr LJ 2780 , enmity between the accused and deceased, eye-witnesses, conviction.",
"Paramjit v State of Haryana, AIR 2000 SC 2038 [LNIND 2000 SC 878] : 2000 Cr LJ 2966 , both the",
"accused and deceased were armed with double barrel guns, yet it could not be said that the",
"accused was acting in self-defence, conviction. Manjeet Singh v State (NCT) of Delhi, AIR 2000",
"SC 1062 [LNIND 2000 SC 305] : 2000 Cr LJ 1439 , murder, natural family witnesses, conviction.",
"SN Dube v NB Bhoir, AIR 2000 SC 776 [LNIND 2000 SC 73] : 2000 Cr LJ 830 , conviction under",
"section 300 read with sections 120 and 149, eye-witnesses reliable. State of Karnataka v R",
"Yarappa Reddy, AIR 2000 SC 185 [LNIND 1999 SC 894] : 2000 Cr LJ 400 , conviction because of",
"clear evidence. In reference to the evidence of eye-witnesses, the court said that criminal courts",
should not expect set reaction from eye-witnesses who see an incident like murder. State of,
"Maharashtra v Manohar, AIR 1998 SC 166 : 1998 Cr LJ 335 , re-appreciation of evidence,",
"acquittal of the accused by the High Court set-aside. Surendra Narain v State of UP, AIR 1998 SC",
"192 [LNIND 1997 SC 1689] : 1998 Cr LJ 359 (SC), a person shot to death while on rickshaw, co-",
"sitter on the rickshaw, witness, reliable, conviction, rickshaw puller not examined, not material,",
"evidence has to be weighed, not counted. Proof of motive is not necessary when the accused",
"being guilty is amply proved by evidence. Another ruling to the same effect, State of UP v Nahar",
"Singh, AIR 1998 SC 1328 [LNIND 1998 SC 215] : 1998 Cr LJ 2006 , motive proved in reference to",
"the main accused, also identification evidence and dying declaration, convicted, others",
"acquitted. Jinnat Mia v State of Assam, AIR 1998 SC 533 [LNIND 1997 SC 1618] : 1998 Cr LJ 851",
", killing a man while in bed, his wife being also injured. Her testimony led to conviction. Jagdish v",
"State of Haryana, AIR 1998 Sc 732 : 1998 Cr LJ 1099 , shooting down with gun, conviction, no",
"interference called for. Atmendra v State of Karnataka, AIR 1998 SC 1985 [LNIND 1998 SC 386] :",
"1998 Cr LJ 2838 , killing by intentional shooting not accidental. Ram Gopal v State of Rajasthan,",
"AIR 1998 SC 2598 : 1998 Cr LJ 4066 , death by gunshot injury before home inmates, who being",
"natural witnesses, conviction.",
"Ram Khilari v State of Rajasthan, AIR 1999 SC 1002 [LNIND 1999 SC 1347] : 1999 Cr LJ 1450 ,",
"conviction possible on the basis of a confession. Bhaskaran v State of Kerala, AIR 1998 Sc 476",
"[LNIND 1997 SC 1562] : 1998 Cr LJ 684 , death caused by stabbing, conviction because of",
"reliable witnesses. Bharat Singh v State of UP, AIR 1999 SC 717 [LNIND 1998 SC 1112] : 1999 Cr",
"LJ 829 , accused convicted on the evidence of eye-witnesses, it was immaterial that the",
"personal body guards of the deceased were not examined. Daleep Singh v State of UP, AIR 1997",
"SC 2245 : 1997 Cr LJ 2760 , evidence of eye-witnesses supported by FIR and also by medical",
"evidence, conviction proper, Baitullah v State of UP, AIR 1997 SC 3946 [LNIND 1997 SC 1322] :",
"1997 Cr LJ 4644 , outspoken murder, proof of motive not necessary. State of Gujarat v",
"Anirudhsingh, AIR 1997 SC 2780 [LNIND 1997 SCDRCHYD 22] : 1997 Cr LJ 3397 , flag-hoisting",
"ceremony, hitting the deceased from behind with unlicenced firearm, conviction for murder,",
"Kailash v State of UP, AIR 1997 SC 2835 [LNIND 1997 SC 1686] : 1997 Cr LJ 3511 , conviction for",
"murder of three members of family, reliable witnesses. Dalip Singh v State of Punjab, AIR 1997",
"SC 2985 [LNIND 1997 SC 882] : 1997 Cr LJ 3647 , presence of eye-witnesses, not doubtful,",
"supported by medical evidence, defence version found false, conviction. Baleshwar Mandal v",
"State of Bihar, AIR 1997 SC 3471 [LNIND 1997 SC 1067] : 1997 Cr LJ 4084 , conviction because",
"of reliable eye-witnesses, inspite of irregularities by investigating officer. Nikka Singh v State of",
"Punjab, AIR 1997 SC 3676 [LNIND 1996 SC 1644] : 1977 Cr LJ 4651 , conviction confirmed,",
"reliable child eye-witness. Sanjeev Kumar v State of Punjab, AIR 1997 SC 3717 [LNIND 1997 SC",
"811] : 1997 Cr LJ 3178 , reliable prosecution witnesses, conviction. Shabir Mohmad Syed v State",
"of Maharashtra, AIR 1997 SC 3808 [LNIND 1997 SC 820] : 1997 Cr LJ 4416 , one of the accused",
"persons could not be identified and, therefore, acquitted, others convicted.",
"Murarilal Jivram Sharma v State of Maharashtra, AIR 1997 SC 1593 : 1997 Cr LJ 782 , death",
"caused with country made pistol, proved by medical, technical and eye-witness account,",
"conviction. Balbir Singh v State of Rajasthan, AIR 1997 SC 1704 [LNIND 1997 SC 51] : 1997 Cr LJ",
"1179 , death caused by inflicting injuries, evidence of approver corroborated by prosecution",
"witnesses, conviction. Nathuni Yadav v State of Bihar, AIR 1997 SC 1808 : (1998) 9 SCC 238 ,",
"though moonless night, but witnesses identified the assailants because they were known",
"persons, conviction.",
"Kanta Ramudu v State of AP, AIR 1997 SC 2428 [LNINDORD 1997 SC 122] : 1997 SCC (Cr) 573,",
"causing death by piercing sharp-edged weapon into the heart of the deceased, the accused",
"declaring his intention to do away with him. Rohtas v State of UP, AIR 1997 SC 2444 [LNIND",
"1997 SC 772] : 1997 Cr LJ 2981 , accused persons came with a determination to kill their",
"victims and they did kill them with spears, convicted. Mithilesh Upadhyay v State of Bihar, AIR",
"1997 SC 2457 [LNIND 1997 SC 714] : 1997 SCC (Cr) 716, eye-witness account that each of the",
"three accused fired at their victim and each shot hit him, not to be disregarded for the fact that",
"only bullet wounds were found, one shot could have missed the target, conviction. Manmohan",
"Singh v State of Punjab, AIR 1997 Sc 1773 : 1997 Cr LJ 1632 , concurrent finding of guilt by the",
"trial court and High Court. No interference by the Supreme Court. Bhartu v State of Haryana, AIR",
"1997 SC 281 [LNIND 1996 SC 1727] : 1997 Cr LJ 242 , conviction for murder. Navakoti Veera",
"Raghavalu v State of AP, AIR 1997 SC 727 [LNIND 1997 SC 61] : 1997 Cr LJ 841 , disabled son",
"killed by father by setting him on fire, clear dying declaration, motive to grab property gifted to",
him by grandfather.,
"Raghbir Singh v State of Haryana, AIR 2000 SC 3395 [LNIND 2000 SC 678] : 2000 Cr LJ 2463 ,",
"gunshot injury gave risk to complications of intervening discussion, conviction for murder,",
"enhancement of fine from Rs. 2,000 to Rs. 10,000 was set aside because there was no apparent",
"justification for the enhancement. Geeta v State of Karnataka, AIR 2000 SC 3475 [LNIND 1999",
"SC 1091] : 2000 Cr LJ 3187 , killer of a lady guest found guilty of murder and theft of ornaments.",
"Kothakulava Naga Subba Reddy v Public Prosecutor, AP High Court, AIR 2000 SC 3480 [LNIND",
"2000 SC 523] : 2000 Cr LJ 3452 , a relative who had come from another village, testified to the",
assault on the deceased. His testimony became the basis of conviction. Lal Ji Singh v State of,
"UP, AIR 2000 SC 3594 , the accused party indiscriminately fired and assaulted the prosecutor,",
"killing four, dying declaration of woman deceased, relied upon to convict. Ajay Singh v State of",
"Bihar, AIR 2000 SC 3538 [LNIND 2000 SC 757] , two motor cycle borne persons shot at the",
"deceased with their respective weapons, testimony of two eye-witnesses which was",
"unimpeachable was relied upon for conviction, irrespective of the fact that one pistol was",
examined by ballistic expert or that medical evidence was different from the eye-witness,
"account. Dharmendra Singh v State of Gujarat, AIR 2002 SC 1937 [LNIND 2002 SC 302] (Supp) :",
"2002 Cr LJ 2631 (SC), the accused fatally assaulted his two sons after sending his wife away",
but she returned home and witnessed the incident. Conviction for murder confirmed. Sukhdev,
"Yadav v State of Bihar, 2002 Cr LJ 80 (SC), no interference in conviction. Munna v State of",
"Rajasthan, 2001 Cr LJ 4127 (Raj), murder by hitting and running over by station wagon. State of",
"TN v Kutty, 2001 Cr LJ 4169 (SC), killer of two women for whom he worked, all the details of the",
"incident captured, conviction. Firozuddin Basheeruddin v State of Kerala, 2001 Cr LJ 4215 (SC),",
"conspiracy and murder, conviction. Nelabothu v State of AP, 2001 Cr LJ 509 , murder by accused",
"proved no interference in conviction. Gura Singh v State of Rajasthan, 2001 Cr LJ 487 (SC), the",
"killer of his father, sufficiently connected by evidence, conviction. State (NCT) of Delhi v Sunil,",
"2001 Cr LJ 604 (SC), medical report of death by bruises all over the body, murder, conviction.",
"Suryanarayana v State of Karnataka, 2001 Cr LJ 705 (SC), murder witnessed by child, trustworthy,",
"conviction sustained. Vijay Pal Singh v State (NCT) of Delhi, 2001 Cr LJ 3294 (SC) murder, eye-",
"witnesses, acquittal not to be set aside. Gade Lakshmi Mangraju v State of AP, 2001 Cr LJ 3317",
"(SC), complete chain of events formed by circumstances, conviction. Bibhachha v State of",
"Orissa, 2001 Cr LJ 2895 (SC) : 1998 Cr LJ 1553 (Ori), connection of the accused with murder",
"proved. Sandeep v State of Haryana, 2001 Cr LJ 1456 : AIR 2001 SC 1103 [LNIND 2001 SC 552] ,",
"recoveries, reports and witnesses showed the accused to be the culprit, conviction.",
"Pradeep Kumar v State of HP, 2001 Cr LJ 1517 (HP), causing death of the victim woman by",
"throwing kerosene and setting her on fire. Dhananjaya Reddy v State of Karnataka, 2001 Cr LJ",
"1712 (SC), killing husband with the help of paramour, wife given benefit of doubt, paramour",
"convicted. Munshi Prasad v State of Bihar, 2001 Cr LJ 4708 (SC), the fact of 400 to 500 yards",
"away from the place of occurrence, not a good alibi. One could come back after causing death.",
"Manish Dixit v State of Rajasthan, 2001 Cr LJ 133 (SC), conviction for abduction and murder of a",
"jeweler. Surendra Singh Rautela v State of Bihar, 2002 Cr LJ 555 (SC), firing at inmates of a car,",
"one killed, another injured, identification of the assailants by the injured person could not be",
discussed only because still another inmate in the car did not support the prosecution case.,
"Rama Mangaruji v State of Maharashtra, 2002 Cr LJ 573 (SC), accused threw crude bomb on his",
"brother, murder, and not coming under section 304.",
"State of UP v Babu Ram, 2000 Cr LJ 2457 : AIR 2000 SC 1735 [LNIND 2000 SC 647] , the accused",
"caused death of his father, mother and brother, bodies etc. recovered at his instance, not",
"entitled to acquittal. Bahadur Naik v State of Bihar, 2000 Cr LJ 2466 : AIR 2000 SC 1582 [LNIND",
"2000 SC 884] , meditation can develop on the spot. Two accused caught hold of their victim,",
"another accused inflicted five to six dagger blows, conviction was not converted from murder to",
culpable homicide.,
"Ammini v State of Kerala, 1998 Cr LJ 481 (SC), killing a woman and her two children by",
"administering potassium cyanide, conviction. Darshan v State of Haryana, AIR 2002 SC 2344 ,",
"murderous assault, plea of self-defence found to be false, conviction. Koli Lakhmanbhai",
"Chanabhai v State of Gujarat, 2000 Cr LJ 408 : AIR 2000 SC 210 [LNIND 1999 SC 1023] , injuries",
"caused to death, conviction. Jagdish v State of MP, 2000 Cr LJ 2955 : AIR 2000 SC 2059 [LNIND",
"2000 SC 842] , injuries inflicted with intention to cause death, conviction. Paramjit Singh v State",
"of Haryana, 2000 Cr LJ 2966 : AIR 2000 Sc 2038 [LNIND 2000 SC 878] , murder with gun shots",
"proved, conviction. State of WB v Mir Mohd Omar, 2000 Cr LJ 4047 : AIR 2000 SC 2988 [LNIND",
"2000 SC 1163] , the victim abducted and killed, conviction for murder. The court said that when",
"abductors are not able to explain anything about the victim, the court could presume that he",
"must have been killed. Md Mohiruddin v State of Punjab, 1999 Cr LJ 461 : AIR 1999 Sc 307",
"[LNIND 1998 SC 645] , incriminatory circumstances proved guilt of accused, rightly convicted.",
"Amrik Singh v State of Punjab, 1999 Cr LJ 463 : 1998 SCC (Cr) 944, conviction for murder. State",
"of Rajasthan v Major Singh, 1999 Cr LJ 1631 : AIR 1999 SC 1073 [LNIND 1999 SC 168] ,",
"conviction for deliberate murder by several persons. Nirmal Singh v State of Haryana, 1999 Cr LJ",
"1836 : AIR 1999 SC 1221 [LNIND 1999 SC 1228] , earlier rape convict, killed five members of the",
"family of victim, conviction for murder, proper. Siddique v State of UP, 1999 Cr LJ 2521 : AIR",
"1999 SC 1690 [LNIND 1999 SC 416] , no interference in conviction of accused because of",
"proper evidence. Ram Singh v State of UP, 1999 Cr LJ 2581 : AIR 1999 Sc 1754 [LNIND 1999 SC",
"1260] , shooting down the victim, conviction despite conflict between ocular and medical",
"evidence. State of Rajasthan v Teja Ram, 1999 Cr LJ 2588 : AIR 1999 SC 1776 [LNIND 1999 SC",
"279] , blows to death caused with axes, which were recovered at the instance of the accused,",
"other evidence, conviction. Surjit Singh v State of Punjab, 1999 Cr LJ 3485 : AIR 1999 SC 2855",
"[LNIND 1999 SC 499] , murder by accused proved, conviction. State of UP v Hem Raj, 1999 Cr LJ",
"3489 : AIR 1999 Sc 2147 [LNIND 1999 SC 1254] , assault by three, eye-witnesses deposed fatal",
"blow only by accused, convicted, rest acquitted. State of TN v Rajendran, 1999 Cr LJ 4552 : AIR",
"1999 SC 3535 [LNIND 1999 SC 857] , burnt two children and their mother alive by putting their",
"hut on fire, conviction. Ramesh Laxman Gavli v State of MP, 1999 Cr LJ 4603 : AIR 1999 Sc 3759",
"[LNIND 1999 SC 825] , conviction not interfered with as the incident was witnessed by reliable",
"persons. Ramanbhai Naranbhai v State of Gujarat, 1999 Cr LJ 5013 : (2000) 1 SCC 358 [LNIND",
"1999 SC 1067] , killing by unlawful assembly, conviction. Rachpal Singh v State of Punjab, AIR",
"2002 Sc 2710 [LNIND 2002 SC 451] : 2000 Cr LJ 2710 , conviction, medical as well as ocular",
"evidence. Rakesh v State of UP, AIR 2002 Sc 2721 [LNIND 2002 SC 442] : 2002 Cr LJ 3551 ,",
"conviction, findings of Sessions Judge were described as clearly perverse and unreasonable.",
"Podapati v State of AP, AIR 2002 SC 2724 [LNIND 2002 SC 869] : 2002 Cr LJ 3555 , killed one's",
"uncle, witnessed by four persons, conviction. Gajula v State of AP, 2002 Cr LJ 3565 (SC), faction",
"fights among villagers, murders, conviction.",
"Bhupendra Singh v State of Gujarat, 1998 Cr LJ 57 : AIR 1997 SC 3790 [LNIND 1997 SC 1378] ,",
"police constable shooting down head constable, defence of accident not allowed, conviction.",
"For details, see discussion under section 80. Harcharan Singh v State of Rajasthan, 1998 Cr LJ",
"398 : AIR 1998 SC 244 [LNIND 1997 SC 1350] , murder of bus-conductor, witness a bus",
"passenger, his testimony not distrusted for the fact that he named a wrong commodity than that",
"which he had gone to buy. Saudagar Singh v State of Haryana, 1998 Cr LJ 62 : AIR 1998 SC 28",
"[LNIND 1997 SC 890] , a witness about it was proved that he was won over by the accused, no",
adverse presumption was drawn against the prosecution. Conviction of the accused who fired,
"the shot, others acquitted. Pakkirisamy v State of TN, 1998 Cr LJ 89 : AIR 1998 SC 107 [LNIND",
"1997 SC 1291] , said person caused death and took away jewellery and other items,",
"confessions, conviction. Malkhan v State of UP, 1998 Cr LJ 96 (All), gun-shot injury leading to",
"peritonitis, which became cause of death, the liability of the accused not lessened by reason of",
"intervention of deceased. Ratnakar Dandasena v State of Orissa, 1998 Cr LJ 295 (Ori),",
"misunderstanding over partition of land, hitting with axe causing death of victim, conviction.",
"Charan Singh v State of Punjab, 1998 Cr LJ 657 (SC); Lakha Singh v State of Punjab, 1998 Cr LJ",
"657 (SC), death caused by gandasa blows, both accused rightly convicted. Bhaskaran v State of",
"Kerala, 1998 Cr LJ 684 : AIR 1998 SC 476 [LNIND 1997 SC 1562] , death by stabbing, reliable",
"eye-witnesses, conviction. Subhash Bassi v State, 1998 Cr LJ 719 (Del), single witness reliable,",
"conviction. Vasant v State of Maharashtra, 1998 Cr LJ 844 : AIR 1998 SC 699 [LNIND 1997 SC",
"1599] , running over by jeep, conviction for murder. Elkur Jameesu v State of AP, 1998 Cr LJ 846 :",
"AIR 1998 SC 1492 [LNIND 1997 SC 1513] , entry into house and stabbing a person there who",
"died. His son and wife saw the intruder running away, being told by the injured that the person",
"seen running away injured him. Conviction. Jagdish v State of Haryana, 1998 Cr LJ 1099 : AIR",
"1998 SC 732 , murder, accused connected with it by eye-witnesses and medical evidence,",
"conviction not interfered with. Bhola Turha v State of Bihar, 1998 Cr LJ 1102 : AIR 1998 SC 1515",
"[LNIND 1997 SC 1500] , conviction only on the basis of dying declaration, held proper. Kamlesh",
"Rani v State of Haryana, 1998 Cr LJ 1251 : AIR 1998 SC 1534 [LNIND 1997 SC 1645] , conviction",
"on the basis of dying declaration of deceased wife. Rajendra Mahton v State of Bihar, 1998 Cr LJ",
"1254 : AIR 1998 SC 1546 [LNIND 1997 SC 1589] , shopkeeper killed at his shop, killers identified",
"by home people, conviction. Mahipal v State of Rajasthan, 1998 Cr LJ 1257 : AIR 1998 SC 864",
"[LNIND 1998 SC 25] , recovery of instrument of murder at the instance of the accused,",
"conviction. Vinayak Shivajirao Pol v State of Maharashtra, 1998 Cr LJ 1558 : AIR 1998 SC 1096",
"[LNIND 1998 SC 96] , extra-judicial confession, recoveries also at the instance of the accused,",
"conviction. George v State of Kerala, 1998 Cr LJ 2034 : AIR 1988 1376, main accused convicted,",
"others not identified acquitted. Dharmendra Singh v State of UP, 1998 Cr LJ 2064 (SC),",
"conviction for multiple murders. Mukut Singh v State, 1998 Cr LJ 2084 (All), murder, two eye-",
"witnesses naturally at the spot, conviction. Sankara Nagarmalleswara v State of AP, 1998 Cr LJ",
"2270 (SC), dying declaration, eye-witnesses to murder reliable, conviction; GS Walia v State of",
"Punjab, 1998 Cr LJ 2524 (SC), murder with axes and lathi blows, conviction. Rewa Ram v Teja,",
"1998 Cr LJ 2558 : AIR 1998 SC 2883 [LNIND 1998 SC 283] , accused persons assaulted",
"deceased with a variety of weapons. Accused suffered about 8-10 injuries, whereas the",
deceased suffered 51 injuries. No evidence to show who caused final fatal injury. Conviction,
"under section 326. Nachhattar Singh v State of Punjab, 1998 Cr LJ 2560 : AIR 1998 SC 2884",
"[LNIND 1998 SC 282] , intentional killing of a woman in her house, conviction. Velan Kutty v State",
"of Kerala, 1998 Cr LJ : AIR 1998 SC 2888 [LNIND 1998 SC 250] , assault on victim with chopper,",
"conviction. State of Rajasthan v Satyanaranyan, 1998 Cr LJ 2911 : AIR 1998 SC 2060 [LNIND",
"1998 SC 88] , murderous attack, brother of the victim intervened, attack fell on him, death,",
"conviction under section 304, Part I. Govindsami v State of TN, 1998 Cr LJ 2913 : AIR 1998 SC",
"2889 [LNIND 1998 SC 471] , boundary dispute, five murders, recoveries, conviction. Sambasivan",
"v State of Kerala, 1998 Cr LJ 2924 : AIR 1998 SC 2017 , trade union rivalry, bombs thrown on rival",
"union members while they were relaxing, conviction. Rajendra Kumar v State of UP, 1998 Cr LJ",
"1293 (SC), no adverse inference against prosecution for failure to examine another witness.",
"Gajjan Singh v State of Punjab, 1998 Cr LJ 3609 : AIR 1998 SC 2417 [LNIND 1998 SC 508] , two",
"accused, both fired, one fire hitting head, the other chest, conviction of both for murder. Brijlala",
"Pd Sinha v State of Bihar, 1998 Cr LJ 3611 : AIR 1998 SC 2443 [LNIND 1998 SC 598] , police",
"party firing at a running car, killing inmates, their defence of counter-fire failed because there",
"were no marks on their vehicle, conviction. Death sentence reduced to life imprisonment",
because no aggravating circumstances were shown than the mere fact that they were police,
"people. State of HP v Manohar Singh Thakur, 1998 Cr LJ 3630 : AIR 1998 SC 2941 [LNIND 1998",
"SC 660] , killing for greed, wife witness, conviction. National Commission for Women v State of",
"UP, 1998 Cr LJ 4044 : AIR 1998 SC 2726 [LNIND 1998 SC 776] , deaths in a hostility between",
"two neighbouring families, conviction. Adya Singh v State of Bihar, 1998 Cr LJ 4052 : AIR 1998",
"SC 3011 [LNIND 1998 SC 667] , evidence of eye-witnesses accepted, it seemed that the doctor",
"was trying to help the accused-compounder. Dule v State of MP, 1998 Cr LJ 4073 : AIR 1998 SC",
"2756 [LNIND 1998 SC 839] , assault on head with sword, conviction for murder. Jangeer Singh v",
"State of Rajasthan, 1998 Cr LJ 4087 : AIR 1998 SC 2787 [LNIND 1999 PNH 698] , intentional",
"murder, conviction. Uday Kumar v State of Karnataka, 1998 Cr LJ 4622 : AIR 1998 SC 3317",
"[LNIND 1998 SC 908] , murder of child of four years, complete chain of circumstances,",
"conviction. Kommu Vinja Rao v State of AP, 1998 Cr LJ 2523 : AIR 1998 SC 2856 [LNIND 1998",
"SC 385] , conviction for murder. Bhagirath v State of Haryana, AIR 1997 SC 234 [LNIND 1996 SC",
"1769] : 1997 Cr LJ 81 , statement taken by head constable for filing report, the woman died, the",
"statement regarded as a dying declaration. Meharban Singh v State of MP, AIR 1997 SC 1538 :",
"1997 Cr LJ 766 , dying declaration, recoveries, conviction. Krishan v State of Haryana, AIR 1997",
"SC 2598 [LNIND 1997 SC 770] : 1997 Cr LJ 3180 , killing jail inmate, conviction. Asha v State of",
"Rajasthan, AIR 1997 SC 2828 [LNIND 1997 SC 844] : 1997 Cr LJ 3508 , eye-witnesses friends of",
"the victim, could not be discredited for that reason alone. They gave details of the assault and",
"the part played by each of the assailants. Shyam v State, 1997 Cr LJ 35 (Del), murder by",
"poisoning, possession of poison need not be proved in all cases. The accused was seen by",
"witnesses administering poison, inference could be drawn that he was in possession of poison.",
"Ramkishore Patel v State of MP, 1997 Cr LJ 207 (SC) : 1996 AIR SCW 3939, conviction upheld.",
"Godaharish Mishra v Kuntalal Mishra, AIR 1997 SC 286 [LNIND 1996 SC 1719] : 1997 Cr LJ 246 ,",
circumstantial evidence was absolutely clinching in establishing complicity of the accused in,
"murder. Acquittal set aside. Suba Singh v Harbhej Singh, 1997 Cr LJ 727 : AIR 1997 SC 1487",
"[LNIND 1996 SC 1929] , accused formed unlawful assembly and assaulted the victim, the latter's",
relatives and other eye-witnesses did not intervene to protect him. It could not be a ground for,
acquittal. Finding of the High Court that because of the dark the accused could not have been,
"identified was held to be totally imaginary. Naresh Mohanlal Jaiswal v State of Maharashtra, 1997",
"Cr LJ 761 : AIR 1997 SC 1523 [LNIND 1996 SC 1658] , witnesses did not disclose for fear, the",
courts below found that there was sufficient light from the lamp post. State of AP v Gangula,
"Satya Murthy, AIR 1997 SC 1588 [LNIND 1996 SC 2665] : 1997 Cr LJ 774 , finding of dead body,",
"showing homicidal death, on a cot in the accused's house. In the absence of any explanation by",
"the accused, an adverse presumption was drawn against him.",
"Mavila Thamban Nambiar v State of Kerala, AIR 1997 SC 687 [LNIND 1997 SC 24] : 1997 Cr LJ",
"831 , conviction. Prem v Daula, AIR 1997 SC 715 [LNIND 1997 SC 64] : 1997 Cr LJ 838 ,",
"conviction for murder, two accused held the victim, the third struck him dead. Lalit Kumar v",
"State, 1997 Cr LJ 848 (Del), prosecution evidence consistently and conclusively established guilt",
"of the accused. Nagoor Naifa v State of TN, 1997 Cr LJ 880 (Mad), sub-tenant set the landlord",
"family on fire in their room, because they had locked his room, conviction. Rataniya Bhima Bhil v",
"State of Gujarat, 1997 Cr LJ 891 (Guj), murder, conviction. Rabloo Das v State of WB, 1997 Cr LJ",
"1025 (Cal), conviction for intentional murder. Sukhadeo v State of Maharashtra, 1997 Cr LJ 1059",
"(Bom), prosecution not bound to explain injuries of minor nature on the person of the accused.",
"Conviction proper. Pyara v State of Rajasthan, 1997 Cr LJ 1065 (Raj), intentional murder,",
conviction sustained though recoveries of incriminating articles not proved. Sunil Kumar v State,
"of Rajasthan, 1997 Cr LJ 1081 (Raj), conviction for intentional murder properly proved. State of",
"UP v Dan Singh, 1997 Cr LJ 1150 : AIR 1997 SC 1654 [LNIND 1997 SC 162] , murder of marriage",
"party of Scheduled Caste, for details see discussion under section 149. Teja Singh v State",
"Punjab, AIR 1997 SC 921 : 1997 Cr LJ 1175 , conviction, multiple injuries, theory of accident",
"ruled out. Yashin v State of Rajasthan, AIR 1997 SC 869 [LNIND 1997 SC 68] : 1997 Cr LJ 1179 ,",
"intentional murder, properly proved. D Venkatasan v State of TN, 1997 Cr LJ 1287 (Mad),",
"conviction for murder. Subramaniam v State of TN, 1997 Cr LJ 1359 (Mad), conviction for murder",
"of wife. Shanker v State of Rajasthan, 1997 Cr LJ 1388 (Raj), murder with gunshot, conviction,",
"non-recovery of empty cartridge not material. Jiya Ram v State of Rajasthan, 1997 Cr LJ 1423",
"(Raj), connection of accused with murder established. State of Rajasthan v Ali (Hanif), 1997 Cr",
"LJ 1529 : AIR 1997 SC 1023 [LNIND 1997 SC 35] , accused persons, variously armed, killed two",
"and attempted to kill another, conviction proper, two acquitted because eye-witnesses did not",
"say anything against them. Narain Singh v State of Rajasthan, 1997 Cr LJ 1562 (Raj), main",
"accused persons convicted, others acquitted. Baijnath v State of UP, 1997 Cr LJ 1691 (All),",
"conviction on the basis of dying declaration. Baijnath v State of UP, 1997 Cr LJ 1691 (All), non-",
"explanation of injury on deceased, not fatal. Satnamsingh v State of Rajasthan, 1997 Cr LJ 1778",
"(Raj), killing by crushing under wheels of truck, conviction. Mouruddin Choudhury v State of",
"Assam, 1997 Cr LJ 1801 (Gau), conviction for intentional murder, Laxman v State of Karnataka,",
"1997 Cr LJ 1806 (Kant), conviction, not mentioning to accused the statement under section 313,",
"Cr PC, 1973 while recording his statement, not material because no prejudice caused. Gobind",
"Singh v State of Rajasthan, 1997 Cr LJ 1825 (Raj), main accused convicted, co-accused",
"acquitted. Balachandra v State of Karnataka, 1997 Cr LJ 1883 (Kant), murder of husband",
"witnessed by wife, sole witness, conviction. Som Nath v State, 1997 Cr LJ 1897 (P&H), murder by",
"accused proved beyond doubt, in view of clear evidence of time of incident, medical evidence of",
"rigor mortis, not considered for determining time. State of Haryana v Mewa Singh, 1997 Cr LJ",
"1906 : AIR 1997 SC 1407 , murder in protest against love affair, injuries on persons of accused",
"could be self-inflicted, no right of private defence. Gayadhar Naik v State of Orissa, 1997 Cr LJ",
"(Ori) two-three blows on head, both were in a drunken state, no undue advantage, no cruel",
"manner, conviction altered to section 304. Pandappa Hanumappa Hanamar v State of Karnataka,",
"AIR 1997 SC 3663 [LNIND 1997 SC 363] : 1997 Cr LJ 2493 , ghastly murder, order of acquittal",
"set aside, eye-witnesses, minor discrepancies not damaging their testimony, injuries on person",
"of accused, superficial. Jit Singh v State of Punjab, AIR 1997 SC 3676 [LNIND 1996 SC 1644] :",
"1997 Cr LJ 2500 , evidence of child witness, conviction.",
"Amit v State of UP, (2012) 4 SCC 107 [LNIND 2012 SC 138] : AIR 2012 SC 1433 [LNIND 2012 SC",
"138] and State of UP v Iqram, AIR 2011 SC 2296 [LNIND 2011 SC 556] : 2011 8 SCC 80 [LNIND",
"2011 SC 556] : 2011 Cr LJ 3931 , Non-recovery of weapon insignificant. Katta Kumudu v State of",
"AP, AIR 1997 SC 2428 [LNINDORD 1997 SC 122] : 1997 Cr LJ 2979 , soon before the incident,",
the accused uttered words saying what he would do with him (the deceased). The court said,
"that intention to kill him could be inferred from these words. Dwarkanath Tiwary v State of Bihar,",
"AIR 1997 SC 2457 [LNIND 1997 SC 714] : 1997 Cr LJ 2983 , each of the accused persons fired at",
"deceased in quick succession and hit, conviction of all though medical evidence was of only",
"two bullet injuries. State of UP v Abdul, AIR 1997 SC 2512 [LNIND 1997 SC 790] : 1997 Cr LJ",
"2997 (SC), High Court erred in ordering acquittal, set aside. Razakali Khureshi v State of Gujarat,",
"AIR 1999 SC 2538 : 1997 Cr LJ 3119 , conviction did not suffer from any infirmity. Pratapaneni",
"Ravi Kumar v State of AP, AIR 1997 SC 2810 [LNIND 1997 SC 892] : 1997 Cr LJ 3505 , murder",
"caused in furtherance of common object, all members guilty, it being immaterial whether all of",
"them had beaten the deceased. Asha v State of Rajasthan, AIR 1997 SC 2828 [LNIND 1997 SC",
"844] : 1997 Cr LJ 3508 , three motor-cycle borne accused persons, two of them threw acid on",
"victim, and caused injuries, their conviction proper. Mangat Rai v State of Punjab, AIR 1997 SC",
"2838 : 1997 Cr LJ 3514 , murder of wife, conviction. Madru Singh v State of MP, 1997 Cr LJ 4398",
": AIR 1997 SC 3527 [LNIND 1997 SC 1182] , presence and evidence of eye-witnesses could not",
"be doubted on the basis of some trivial contradictions. State of Punjab v Jaswant Singh, 1997 Cr",
"LJ 4428 : AIR 1997 SC 3821 [LNIND 1997 SC 1200] , private defence not available because",
"simple injuries on the person of the accused found to be self-inflicted, conviction under section",
"302. Rukma v Jala, AIR 1997 SC 3907 [LNIND 1997 SC 1069] : 1997 Cr LJ 4651 , complaint",
"about investigation not sustained, the complainant party suffering greater number of injuries",
"than the accused could not be entitled to private defence. Baimullah v State of UP, 1997 Cr LJ",
"4644 : AIR 1997 SC 3946 [LNIND 1997 SC 1322] , injury caused on vital part of body of an",
"unarmed person, plea of private defence negatived. Gopal Madadeo v State of Maharashtra, 1997",
"Cr LJ 2425 (Bom), the fact that the accused was of 76 years of age was no reason for his not",
serving his term of life imprisonment when he was squarely guilty of the offence. Amar Malla v,
"State of Tripura, AIR 2002 SC 3052 [LNIND 2002 SC 517] , armed attack at a meeting by accused",
"persons who were also invited to attend, killings, conviction, non-explanation of injuries on",
accused persons cannot by itself be a ground for throwing out the prosecution case. Mohibur,
"Rahman v State of Assam, AIR 2002 SC 3064 , accused last seen in the company of deceased,",
"he gave false explanations about the whereabouts of the deceased, dead body cut into pieces",
recovered from different places pointed out by the accused. Conviction of the accused was not,
"interfered with. Mahadeo Sahni v State of Bihar, AIR 2002 SC 3032 [LNIND 2002 SC 492] , injuries",
"caused to deceased by sharp-edged and blunt weapons, concurrent finding that the accused",
persons inflicted injuries in prosecution of their common object of doing away with the lives of,
the deceased persons. Conviction under section 302 not interfered with.,
"Lakshmi v State of UP, AIR 2002 SC 3119 [LNIND 2002 SC 534] , a charge of murder can be",
"substantiated even in the absence of identification and cause of death. Bodh Raj v State of J&K,",
"AIR 2002 SC 3164 [LNIND 2002 SC 539] , conviction for murder, elimination of creditor by",
"person indebted. Sahadevan v State, AIR 2003 SC 215 [LNIND 2002 SC 688] : 2003 Cr LJ 424 ,",
"conviction for murder under sections 300, 346, 302 read with section 34. Alamgir v State (NCT,",
"Delhi), AIR 2003 SC 282 [LNIND 2002 SC 693] : 2003 Cr LJ 456 , staying with wife in guest house",
"and causing her death, circumstantial evidence been proved the case, conviction. P",
"Venkateswarlu v State of AP, 2003 Cr LJ 837 : AIR 2003 SC 574 [LNIND 2002 SC 782] , whole",
"village divided on political lines. Death caused by one faction of a person belonging to the other,",
"conviction because of good evidence. State of UP v Jagdeo, AIR 2003 SC 660 [LNIND 2002 SC",
"781] : 2003 Cr LJ 844 , ghastly crime, all the eight accused persons, armed with deadly",
"weapons, attacked unarmed members of the victim's family sleeping in the open at night. The",
accused could not be acquitted only because the investigation was faulty. Suraj Bhan v State of,
"Haryana, AIR 2003 SC 785 [LNIND 2002 SC 826] , the evidence of the injured eye-witness that",
"the accused administered total blow on head of his victim, it was corroborated by medical",
"evidence, the finding of the High Court that the accused was responsible for the death was held",
"to be proper. State of Karnataka v Panchakshari Gurupadayya Hiranath, AIR 2003 SC 825 [LNIND",
"2002 SC 856] , land dispute leading to attack on deceased with a murderous weapon",
"established by evidence. Conviction. State of UP v Man Singh, 2003 Cr LJ 82 , reversal of",
"conviction held improper, good evidence was there. Amarsingh v Balwinder Singh, 2003 Cr LJ",
"1282 (SC), conviction for murder was based upon direct testimony of eye-witnesses under the",
"finding of the trial court that the prosecution case was fully established, the Supreme Court held",
"that acquittal by the High Court by reversing conviction was not proper. State of UP v Premi,",
"2003 Cr LJ 1554 : AIR 2003 SC 1750 [LNIND 2003 SC 232] , the accused persons entered the",
"house of the deceased at midnight armed with country made pistol, inflicted injury on the head",
with great force and caused death. The court said that the mere fact that only one injury was,
caused was not enough to alter the conviction from section 302 to section 304. Gaya Yadav v,
"State of Bihar, 2003 Cr LJ 1564 : AIR 2003 SC 1759 [LNIND 2003 SC 215] , proper evidence for",
"conviction. Kanaksingh v State of Gujarat, 2003 Cr LJ 855 (SC), killing of wife, conviction.",
"Ajitsingh Andubha Parmal v State of Gujarat, AIR 2002 SC 3469 [LNIND 2002 SC 609] , there was",
specific and clear evidence that the accused gave the first two knife blows and further serious,
"injuries by chasing him. Concurrent finding of fact as to guilt, no interference. Mohar v State of",
"UP, AIR 2003 SC 3279 , conviction because of eye-witnesses. State of Karnataka v David Razario,",
"AIR 2002 SC 3272 [LNIND 2002 SC 583] , conviction for robbery and murder. Shyam Sunder v",
"State of Chhatisgarh, AIR 2002 SC 3292 [LNIND 2002 SC 1866] , conviction for murder, eye-",
"witnesses. Dana Yadav v State of Bihar, AIR 2002 SC 3325 [LNIND 2002 SC 574] , conviction on",
"the basis of eye-witnesses. Gyasiram v State of MP, AIR 2003 SC 2097 [LNIND 2003 SC 1] , the",
"accused party waited for their victim, fired at him, killing witnessed, eye-witnesses reliable,",
"conviction. State of UP v Ram Sewak, AIR 2003 SC 2141 [LNIND 2002 SC 828] , properly",
"witnessed case, acquittal was held to be not proper. Rambai v State of Chhatisgarh, AIR 2002 SC",
"3492 [LNIND 2002 SC 635] , conviction on the basis of dying declaration. Shamsher Singh v",
"State of Haryana, AIR 2002 SC 3480 [LNIND 2002 SC 605] , eye-witnesses, recoveries of",
"weapons, etc, conviction. Swaran Singh v State of Punjab, AIR 2002 SC 3652 [LNIND 2002 SC",
"639] , credit of eye-witnesses could not be shaken, conviction. G Laxmanna v State of AP, AIR",
"2002 SC 3685 , relative witnesses, outstanding enmity, conviction. Thaman Kumar v State, UT of",
"Chandigarh, 2003 Cr LJ 3070 (SC), murder charge proved by direct evidence, not allowed to be",
"shaken by hypothetical medical evidence. State of UP v Rasid, 2003 Cr LJ 2011 (SC), time of",
"killing, if it were after day-break, identification of the assailants was possible, this was the stand",
"of the eye-witnesses, but the High Court went by the medical evidence of presence of semi-",
digested food in the stomach of the deceased which showed that the occurrence must belong,
"to the night. The Supreme Court said that medical evidence was not clear and, therefore, the",
"eye-witness account had to be preferred. Rajendra Prabhu Chikane v State of Maharashtra, (2007)",
"13 SCC 511 [LNIND 2007 SC 515] : 2007 Cr LJ 3410 , murder by accused proved beyond",
"reasonable doubt, conviction upheld. MA Sattar v State of AP, (2008) 11 SCC 201 [LNIND 2008",
"SC 754] , clear proof of murder by accused. Umar Md v State of Rajasthan, (2007) 14 SCC 711",
[LNIND 2007 SC 1459] : 2008 Cr LJ 816 .,
"38. Rampal Singh v State of UP, 2012 Cr LJ 3765 : (2012) 8 SCC 289 [LNIND 2012 SC 425] .",
"39. Arjun v State of Rajasthan, (1995) 1 Cr LJ 410 : AIR 1994 SC 2507 [LNIND 1994 SC 604] ,",
"concurrent finding of courts below as to intentional murder, not interfered with in appeal. Ram",
"Kumar v State of Haryana, 1995 Supp (1) SCC 248 : 1994 Cr LJ 3836 (SC), conviction on the",
"evidence of injured eye-witness. Sarbir Singh v State of Punjab, 1993 AIR SCW 807 : 1993 Cr LJ",
"1395 (SC), circumstantial evidence, conviction; Surjit Singh v State of Punjab, AIR 1992 SC 1389",
"[LNIND 1992 SC 361] : 1992 Cr LJ 1952 ; Lakhwinder Singh v State of Punjab, AIR 1993 SC 87 :",
"1992 Cr LJ 3958 , testimony of eye-witnesses convincing, conviction upheld. Other such cases",
"are: Prakash v State of MP, AIR 1993 SC 70 : 1992 Cr LJ 3703 (SC); Mafabhai N Raval v State of",
"Gujarat, AIR 1992 SC 2186 [LNIND 1992 SC 509] : 1992 Cr LJ 3710 and Bir Singh v State of",
"Haryana, AIR 1992 SC 2211 : 1992 Cr LJ 3845 : 1993 Supp (1) SCC 334 ; Ram Kumar v State of",
"UP, AIR 1992 SC 1602 : 1992 Cr LJ 2421 , acquittal set aside because circumstantial evidence",
"reliable. Baboo v State of MP, AIR 1994 SC 1712 : 1994 Cr LJ 2249 , several persons attacked",
"and killed a man in the presence of his wife, whose evidence found support in the testimony of",
"other witnesses, conviction upheld though no FIR lodged. Ch Madhusudana Reddy v State of AP,",
"1994 Cr LJ 2203 : AIR 1994 SCW 1453 , only those convicted who actually participated, others",
"acquitted. PP Karpe v State of Maharashtra, 1993 Cr LJ 2302 (Bom), revengeful killing, conviction",
"for murder. Balak Ram v State of Rajasthan, 1994 Cr LJ 2451 (Raj), killer of his two daughters,",
"eye-witnesses, medical evidence, conviction under section 300. Prem Raj v State of Maharashtra,",
"1996 Cr LJ 2876 : AIR 1996 SC 3294 [LNIND 1996 SC 940] , all the accused constituting an",
"unlawful assembly came to the shop of the deceased, assaulted him and continued to do so",
"after dragging him out, conviction under sections 300/149 held proper. Bhagubhai v State of",
"Gujarat, AIR 1996 SC 2555 [LNIND 1996 SC 1143] : 1996 Cr LJ 3581 , the deceased forcibly",
"taken from field to Panchayat office and set on fire after pouring kerosene, 75% burns and other",
"injuries sufficient to cause death, conviction for intention to murder proper.",
"40. Gunga Singh, (1873) 5 NWP 44. Raju Das v State of Rajasthan, 1995 Cr LJ 25 (Raj), a case of",
proved intentional murder.,
"41. Shakti Vahini v UOI, AIR 2018 SC 1601 [LNIND 2018 SC 136] : 2018 (7) SCC 192 [LNIND",
2018 SC 136] .,
"42. Arumugam Servai v State of TN, (2011) 6 SCC 405 [LNIND 2011 SC 435] . See Dandu",
"Jaggaraju v State of AP, AIR 2011 SC 3387 [LNINDORD 2011 SC 217] : 2011 Cr LJ 4956 , honour",
"killing, not proved, acquitted the accused.",
"43. Bhagwan Dass v State (NCT) of Delhi, AIR 2011 SC 1863 [LNIND 2011 SC 502] : 2011 Cr LJ",
"2903 : (2011) 6 SCC 396 [LNIND 2011 SC 502] . In the 242nd report, the Law Commission of",
"India opined that ""we are constrained to say that such a blanket direction given by the Supreme",
"Court making death sentence a rule in 'honour killings' cases, makes a departure from the",
principles firmly entrenched in our criminal jurisprudence by virtue of a series of Supreme Court,
"Judgments.""; In State of UP v Krishna Master, AIR 2010 SC 3071 [LNIND 2010 SC 699] : 2010 Cr",
"LJ 3889 : (2010) 12 SCC 324 [LNIND 2010 SC 699] , though the killing of six persons and wiping",
out almost the whole family on flimsy ground of honour saving of the family would fall within,
"the rarest of rare case, keeping in view that the incident took place 20 years ago and High Court",
acquitted them in the year 2002 accused sentenced to RI for life.,
"44. Law of Commission of India, 242nd Report, Prevention of Interference with the Freedom of",
"Matrimonial Alliances (in the name of Honour and Tradition): A Suggested Legal Framework,",
available at : http://lawcommissionofindia.nic.in/reports/report242.pdf (last accessed in July,
2019).,
"45. Shakti Vahini v UOI, AIR 2018 SC 1601 [LNIND 2018 SC 136] : 2018 (7) SCC 192 [LNIND",
2018 SC 136] .,
"46. AG Bhagwat (Dr) v UT Chandigarh, 1989 Cr LJ 214 (P&H), convicted for grievous hurt. Jabbar",
"Suleman v State of Gujarat, 1988 Cr LJ 515 (Guj), knife injury on thigh of deceased, knowledge",
"but not intention to cause death attributed, punishable under section 304 Part II not I. Sudam",
"Kisan Dhurjad v State of Maharashtra, 1995 Cr LJ 4029 (Bom), the accused assaulted a bed-",
ridden aged lady of 65 years with an axe on her forehead causing three injuries resulting in,
"fracture of the frontal bone and she died within a couple of hours, his act was held to fall under",
"section 300, clauses 2, 3 and 4 and not under section 304, Part II. Patel Hiralal Tottaram v State",
"of Gujarat, (2002) 1 SCC 22 [LNIND 2001 SC 2382] , the woman was set ablaze after soaking her",
clothes with an inflammable substance. She died 14 days after the incident. The accused was,
not heard to say that the death might have been due to some intervening causes. The act of the,
accused showed his intention to cause death or to cause such bodily injury as was likely to,
"cause death. Sajjan Singh v State of MP, 1998 Cr LJ 4073 : AIR 1998 SC 2756 [LNIND 1998 SC",
"839] , head injury caused, sufficient in the ordinary course of nature. Ram Bihari Yadav v State of",
"Bihar, 1998 Cr LJ 2515 : AIR 1999 SC 1850 , the husband set his wife ablaze, conduct showed",
"guilt, no sign of accident, conviction. Arun Nivalaji More v State of Maharashtra, (2006) 12 SCC",
"613 [LNIND 2006 SC 591] : AIR 2006 SC 2886 [LNIND 2006 SC 591] : 2006 Cr LJ 4057 , the",
"clause imports some kind of certainty and not mere probability, there was no such certain",
knowledge on the facts of this case.,
"47. Anant Chintaman Lagu, (1959) 62 Bom LR 371 (SC); Mohan v State, AIR 1960 SC 659 ;",
"Kaushalya Devi, AIR 1965 Ori 38 [LNIND 1964 ORI 72] . Swinder Singh v State of Punjab, AIR 1952",
"SC 669 : 1960 Cr LJ 1011 , proof on these points being not available, acquittal.",
"48. Also Chandra Kant Nyalchand v State of Bombay, Criminal Appeal No 120 of 1957, decided,",
"Feb 19, 1958.",
"49. Anant Chintaman Lagu v State of Bombay, AIR 1960 SC 500 [LNIND 1959 SC 223] : 1960 Cr",
LJ 682 .,
"50. Bhupinder Singh v State of Punjab, 1988 Cr LJ 1097 : AIR 1988 SC 1011 [LNIND 1988 SC",
211] : (1988) 3 SCC 513 [LNIND 1988 SC 211] : 1988 SCC (Cr) 694.,
"51. Ramgopal, 1972 Cr LJ 473 (SC) : AIR 1972 SC 656 . Followed in Sher Singh v State, (1995) 2",
"Cr LJ 2187 (Del), alleged poisoning by mixing in liquor not proved. Abdul Gani v State of",
"Karnataka, (1995) 2 Cr LJ 2248 (Kant), presence of the husband in the room where his wife was",
"strangulated not proved, conviction on the basis of suspicion was held to be not proper. Mal",
"Singh v State of Rajasthan, (1995) 2 Cr LJ 2279 , acquitted because of no evidence.",
"52. Arundhati, 1968 Cr LJ 848 . Murder by poisoning, the victim found vomitting even two days",
before the date of purchase of poison and other evidence did not inspire confidence. The,
"accused were given benefit of doubt, acquitted of the charge of murder, Rattni v State of HP,",
"1993 Cr LJ 1811 (SC). Sanjiv Kumar v State of HP, AIR 1999 SC 782 [LNIND 1999 SC 55] : 1999",
"Cr LJ 1138 , intentional killing by poisoning proved by circumstantial evidence. State of Bihar v",
"Ramnath Prasad, AIR 1998 SC 466 [LNIND 1997 SC 1581] : 1998 Cr LJ 679 , poison served as",
"prasad, the accused had only knowledge that he was administering a poisonous substance",
"which was likely to cause grievous hurt or even death. Liable to be convicted under section 304,",
Part II and section 326.,
"53. Joydeb Patra v State of WB, 2013 Cr LJ 2729 (SC) : AIR 2013 SCW 2744 .",
"54. Nanhar v State of Haryana, 2010 Cr LJ 3450 : (2010) 11 SCC 423 [LNINDORD 2010 SC 229] .",
"55. State of Rajasthan v Dhool Singh, (2004) 12 SCC 546 [LNIND 2003 SC 1120] : AIR 2004 SC",
1264 [LNIND 2003 SC 1120] : 2004 Cr LJ 931 .,
"56. Abbas Ali v State of Rajasthan, (2007) 9 SCC 129 [LNIND 2007 SC 165] : AIR 2007 SC 1239",
"[LNIND 2007 SC 165] : 2007 Cr LJ 1667 , the ingredients of clause thirdly restated.",
"57. Mangesh v State of Maharashtra, (2011) 2 SCC 123 [LNIND 2011 SC 20] .",
"58. Brij Bhukhan, AIR 1957 SC 474 : 1957 Cr LJ 591 .",
"59. Atmaram v State of MP, (2012) 5 SCC 738 [LNINDORD 2012 SC 403] : 2012 Cr LJ 2882 :",
"2012 (5) Scale 300 [LNIND 2012 SC 309] relied on Anda v State of Rajasthan, AIR 1996 SC 148",
"[LNIND 1965 SC 75] ; State of Andhra Pradesh v Rayavarapu Punnayya, (1976) 4 SCC 382 [LNIND",
1976 SC 331] .,
"60. Virsa Singh v State, AIR 1958 SC 465 [LNIND 1958 SC 19] , (1958) SCR 1495 [LNIND 1958",
"SC 19] ; Rajwant Singh, AIR 1966 SC 1874 [LNIND 1966 SC 125] : 1966 Cr LJ 1509 . Khachar Dipu",
"v State of Gujarat, 2013 (4) SCC 322 [LNIND 2013 SC 278] .",
"61. Jaspal Singh v State of Punjab, (1986) 2 SCC 100 at p 103 : AIR 1986 SC 683 : 1986 Cr LJ",
"488 , per Balakrishna Eradi, J. For an example of circumstantial evidence alone failing to prove",
"an intention, see Padala Veera Reddy v State of AP, 1990 Cr LJ 605 : AIR 1990 SC 79 : 1989 Supp",
"(2) SCC 706 . In Jagtar Singh v State of Punjab, (1988) 1 SCC 712 [LNIND 1988 SC 65] : AIR 1988",
"SC 628 [LNIND 1988 SC 65] : 1988 Cr LJ 866 , which was a case of intentional murder, the",
Supreme Court ignored the fact that FIR did not mention the crucial fact of the accused running,
"away leaving behind his vehicle. In Narendra Singh v State of UP, AIR 1987 SC 1268 : 1987 Cr LJ",
"1070 : (1987) 2 SCC 236 , repeated blows were inflicted on vital parts of the body. This was held",
"to be intentional murder. Vinod Kumar v State of UP, AIR 1991 SC 300 : 1991 Cr LJ 360 , defence",
of accidental shooting ruled out.,
"62. Jai Prakash v State (Delhi Admn), (1991) 2 SCC 32 : (1991) 1 Crimes 474 : 1991 SCC (Cri)",
"299 . Reiterated in Kesar Singh v State of Haryana, (2008) 15 SCC 753 [LNIND 2008 SC 1001] , it",
"does not matter that there was no intention to cause death, or even to cause an injury of a kind",
that is sufficient to cause death in the ordinary course of nature (not that there is any real,
"distinction between the two), or that there is no knowledge that an act of that kind will be likely",
"to cause death. Once the intention to cause the bodily injury is actually found to be proved, the",
"rest of the enquiry is purely objective and the only question is whether, as a matter of purely",
"objective inference, the injury is sufficient in the ordinary course of nature to cause death.",
"Namdeo v State of Maharashtra, (2007) 14 SCC 150 [LNIND 2007 SC 316] : 2007 Cr LJ 1819 ,",
"head injury caused with axe sufficient in the ordinary course of nature to cause death, hence",
"intention was to cause death. Sheikh Rafi v State of AP, (2007) 13 SCC 76 [LNIND 2007 SC 522] :",
"2007 Cr LJ 2746 , 19 injuries caused in a quick succession and also in a cruel manner, deceased",
"being unarmed and helpless. Clause (3) applied, punishable under section 302. Settu v State of",
"TN, 2006 Cr LJ 3889 , no intention to cause death, but injury caused with a knife on a vital part",
"and which was sufficient to cause death, amounted to murder. One companion was convicted",
"under section 304, Part I and the other under section 326, because minor injuries on non-vital",
parts.,
"63. Rampal Singh v State of UP, 2012 (8) SCC 289 [LNIND 2012 SC 425] .",
"64. Vineet Kumar Chauhan v State of UP, 2007 (14) SCC 660 [LNIND 2007 SC 1509] .",
"65. Ajit Singh v State of Punjab, 2011 (9) SCC 462 [LNIND 2011 SC 844] .",
"66. Mohinder Pal Jolly v State of Punjab, 1979 (3) SCC 30 [LNIND 1978 SC 389] .",
"67. Khachar Dipu v State of Gujarat, 2013 (4) SCC 322 [LNIND 2013 SC 278] .",
"68. Anda, AIR 1966 SC 148 [LNIND 1965 SC 75] : 1966 Cr LJ 171 .",
"69. Rajwant Singh, supra. Seven-year-old child held by the legs and dashed against the ground",
"three times in quick succession, held covered by this clause. Shankar Narayan Bhadolkar v State",
"of Maharashtra, AIR 2004 SC 1966 [LNIND 2004 SC 1370] : 2004 Cr LJ 1778 : (2005) 9 SCC 71",
"[LNIND 2004 SC 1370] , a restatement of the basic approach of the clause. The court also made",
"a comparison between the statement in clause 2 of section 299 ""bodily injury likely to cause",
"death"" with ""bodily injury sufficient in the ordinary course of nature to cause death"" in clause 3 in",
section 300.,
"70. Umesh Singh v State of Bihar, 2013 (4) SCC 360 [LNIND 2013 SC 227] : 2013 Cr LJ 2116 ;",
"AIR 2013 SC 1743 [LNIND 2013 SC 227] ; Gajoo v State of Uttarakhand, 2013 Cr LJ 88 ; 2012 (9)",
"SCC; Kuria v State of Rajasthan, 2012 Cr LJ 4707 : (2012) 10 SCC 433 [LNIND 2012 SC 678] ;",
"Darbara Singh v State of Punjab, 2012 Cr LJ 4757 ; 2012 (8) Scale 649 [LNIND 2012 SC 545] ;",
(2012) 10 SCC 476 [LNIND 2012 SC 545] .,
"71. Abdul Sayeed v State of MP, (2010) 10 SCC 259 [LNIND 2010 SC 872] : (2010) 3 SCC (Cri)",
"1262 [LNIND 2010 SC 872] , Ram Narain Singh v State of Punjab, AIR 1975 SC 1727 [LNIND 1975",
"SC 210] ; State of Haryana v Bhagirath, (1999) 5 SCC 96 [LNIND 1999 SC 541] ; Thaman Kumar v",
"State of Union Territory of Chandigarh, (2003) 6 SCC 380 [LNIND 2003 SC 507] ; and Krishnan v",
"State, (2003) 7 SCC 56 [LNIND 2003 SC 587] ; Solanki Chimanbhai Ukabhai v State of Gujarat, AIR",
"1983 SC 484 [LNIND 1983 SC 69] ; Mani Ram v State of UP, 1994 Supp (2) SCC 289 ; Khambam",
"Raja Reddy v Public Prosecutor, High Court of AP, (2006) 11 SCC 239 [LNIND 2006 SC 753] ; and",
"State of UP v Dinesh, (2009) 11 SCC 566 [LNIND 2009 SC 454] . State of UP v Hari Chand, (2009)",
"13 SCC 542 [LNIND 2009 SC 1039] ; In Sayed Darain Ahsan v State of WB, (2012) 4 SCC 352",
"[LNIND 2012 SC 197] : AIR 2012 SC 1286 [LNIND 2012 SC 197] : 2012 Cr LJ 1980 , it is found",
that the medical evidence does not go so far as to rule out all possibility of the ocular evidence,
being true and hence the ocular evidence cannot be disbelieved.,
"72. Sunil Kundu v State of Jharkhand, (2013) 4 SCC 422 [LNIND 2013 SC 1135] : 2013 Cr LJ",
"2339 (SC) In Anjani Chaudhary, (2011) 2 SCC 747 [LNIND 2010 SC 1048] , where the medical",
evidence did not support the appellant's presence as there was no injury on the deceased which,
could be caused by a lathi and the appellant was stated to be carrying a lathi. Since the eye-,
"witnesses therein were not found to be reliable, Supreme Court acquitted the appellant therein.",
"In Kapildeo Mandal, (2008) 16 SCC 99 [LNIND 2007 SC 1390] , all the eye-witnesses had",
"categorically stated that the deceased was injured by the use of firearm, whereas the medical",
evidence specifically indicated that no firearm injury was found on the deceased. Court held,
"that, when the evidence of the eye-witnesses is totally inconsistent with the evidence given by",
"the medical experts, then evidence is appreciated in a different perspective by the courts. It was",
observed that when medical evidence specifically rules out the injury claimed to have been,
"inflicted as per the eye-witnesses' version, then the court can draw adverse inference that the",
prosecution version is not trustworthy.,
"73. Bhagwati Prasad v State of MP, (2010) 1 SCC 697 [LNIND 2009 SC 2058] : 2009 (14) Scale",
314 [LNIND 2009 SC 2058] : AIR 2010 SC 349 [LNIND 2009 SC 2058] : 2010 Cr LJ 528 .,
"74. Kuna v State of Odisha, AIR 2017 SC 5364 [LNIND 2017 SC 2864] .",
"75. Kesar Singh v State of Haryana, (2008) 15 SCC 753 [LNIND 2008 SC 1001] .",
"76. Lakshman, (1888) Unrep Cr C 411.",
"77. Nga Maung, (1907) 13 Burma LR 330.",
"78. Judagi Mallah, (1929) 8 Pat 911.",
"79. Shankar Narayan Bhadolkar v State of Maharashtra, AIR 2004 SC 1966 [LNIND 2004 SC 1370]",
": 2004 Cr LJ 1778 , explanation of importance of knowledge in the context of the clause.",
"80. Ram Prasad, AIR 1968 SC 881 [LNIND 1967 SC 358] : 1968 Cr LJ 1025 . See Dev Raj v State",
"of Punjab, AIR 1992 SC 950 : 1992 Cr LJ 1292 : 1992 Supp (2) SCC 81 , gun-shot injuries, death",
"occurring one and a half months later, in between surgery and amputation, held accused guilty",
"of grievous hurt. State of Karnataka v Venkatesh, AIR 1992 SC 674 : 1992 Cr LJ 707 : 1992 (1)",
Crimes 625 SC : JT 1992 (1) SC 99 : 1992 (1) Scale 31 : 1992 Supp (1) SCC 539 .,
"81. State of Haryana v Krishan, AIR 2017 SC 3125 [LNIND 2017 SC 294] .",
"82. Umakant v State of Chhatisgarh, 2014 Cr LJ 4078 : 2014 (8) Scale 141 [LNIND 2014 SC 374]",
.,
"83. DV Shanmugham v State of AP, AIR 1997 SC 2583 [LNIND 1997 SC 720] : 1997 Cr LJ 3129 ,",
"some of the accused persons were, however, given the benefit of doubt because there was no",
"clear evidence against them. State of UP v Shri Krishan, 2005 Cr LJ 892 : AIR 2005 SC 762",
"[LNIND 2004 SC 1252] : (2005) 10 SCC 399 [LNIND 2004 SC 1252] , the wife was with the man",
at the time when the husband alone was killed by the assailants. Her FIR was recorded after 13,
"days, this fact alongwith some other details created a doubt about the prosecution case of",
"which the benefit went to the assailants. State of AP v Patnam Anandam, 2005 Cr LJ 894 : AIR",
"2005 SC 764 [LNIND 2004 SC 1241] : (2005) 9 SCC 237 [LNIND 2004 SC 1241] , another similar",
"case of benefit of doubt. Jagjit Singh v State of Punjab, 2005 Cr LJ 955 : AIR 2005 SC 913 :",
"(2005) 3 SCC 689 , accused alleged to have killed three persons at the tubewell sight coming",
there by motor cycle. A girl child of seven years was supposed to be the eye-witness. She had,
"never seen the accused before, her statement was recorded after three days, not reliable,",
"acquittal on benefit of doubt. Puran Singh v State of Uttaranchal, (2008) 3 SCC 725 : 2008 Cr LJ",
"1058 : (2008) 1 Ker LJ 875 , benefit of doubt allowed on the basis of technical evidence.",
"84. State of TN v Balkrishna, 1992 Cr LJ 1872 (Mad).",
"85. Mohammad Khalil Chisti (Dr) v State of Rajasthan, 2013 Cr LJ 637 (SC), 2013 (1) Mad LJ (Cr)",
"198, (2013) 2 SCC 541 [LNIND 2012 SC 801] ; Waman v State of Maharashtra, 2011 (7) SCC 295",
[LNIND 2011 SC 564] : AIR 2011 SC 3327 [LNIND 2011 SC 564] : 2011 Cr LJ 4827 ; Lakshmi,
"Singh v State of Bihar, 1976 SCC (Cr) 671 : AIR 1976 SC 2263 : 1976 Cr LJ 1736 , non-",
explanation of simple injuries of the nature suffered by the accused would not be fatal; Ram,
"Vishambhar v State of UP, 2013 Cr LJ 1131 : (2013) 2 SCC 71 [LNINDU 2013 SC 5] ; Hari v State",
"of Maharashtra, (2009) 11 SCC 96 [LNIND 2009 SC 642] : (2009) 3 SCC (Cr) 1254.",
"86. Nokul Nushyo, (1867) 7 WR (Cr) 27; Akhila Parida v State of Orissa, 1987 Cr LJ 609 (Ori),",
"provocation by cutting the crop of accused. See also Nagar Prasad v State of UP, 1998 Cr LJ",
1580 (All).,
"87. Sukhlal Sarkar v UOI, (2012) 5 SCC 703 [LNIND 2012 SC 364] : 2012 Cr LJ 3032 .",
"88. Laikhan, (1955) Cut 625.",
"89. Kundarapu, (1962) 1 Cr LJ 261 . Jagjit Singh v State of HP, 1994 Cr LJ 233 : 1994 SCC (Cr)",
"176, the accused inflicted a number of serious injuries on the vital parts of the body of his victim",
"causing his death on the spot, held Exception 1 of section 300 not attracted. Pappachan v State",
"of Kerala, 1994 Cr LJ 1765 (Ker), the accused delivered a fatal stab wound to the person who",
"tried to pacify him, no evidence of any sudden and grave provocation or a sudden fight. The",
offence did not fall under Exception 1 or 2 of section 300.,
"90. KM Nanavati v State of Maharashtra, AIR 1962 SC 605 [LNIND 1961 SC 362] : 1962 Cr LJ 521",
(SC).,
"91. Budhi Singh v State of HP, 2013 Cr LJ 962 (SC) : AIR 2013 (SCW) 547 .",
"92. KM Nanavati, (1962) Bom LR 488 : AIR 1962 SC 605 [LNIND 1961 SC 362] : 1962 Cr LJ 521",
"(SC); Akhtar v State, AIR 1964 All 262 [LNIND 1963 ALL 180] . Girja Devi v State of HP, 2000 Cr LJ",
"1528 (HP), the accused wife killed her husband being provoked by his perverse sexual habits,",
"punished under section 304, Part I.",
"93. Dhandayuthan v State of TN, 1994 Cr LJ 1587 (Mad).",
"94. Gyanendra Kumar v State, 1972 Cr LJ 308 : AIR 1972 SC 502 [LNIND 1971 SC 601] ; see also",
"Panchu Kumar Sardar, 1984 Cr LJ (NOC) 142 (Cal); Balerian Minji, 1985 Cr LJ 1394 (MP). Where",
the accused on being slapped by the deceased ran to his house which was at considerable,
distance and brought several deadly weapons and inflicted various injuries on the deceased two,
"of which proved fatal, his action was indicative of his intention to kill the victim, he was held to",
be rightly punished for murder,
"95. BD Khunte v UOI, 2015 Cr LJ 243 .",
"96. Dhandayuthan v State, 1994 Cr LJ 1587 .",
"97. Murgi Munda, (1938) 18 Pat 101.",
"98. Balku, (1938) All 789 ; Hussain, (1938) 20 Lah 278.",
"99. Re V Padayachi, 1972 Cr LJ 1641 (Mad).",
"100. Hansa Singh, 1977 Cr LJ 1448 (SC).",
"101. Ram Prakash Singh v State of Bihar, AIR 1998 SC 1190 [LNIND 1998 SC 137] : 1998 Cr LJ",
"1622 , conduct of accused in the jail being good, his sentence was reduced to the period already",
"undergone during trial plus jail term. Bishek Mohandas v State of Orissa, 1998 Cr LJ 1489 (Ori),",
"quarrel, one picked up an instrument and struck the other, himself also injured, for the ensuing",
"death, conviction under section 304, Part II.",
"102. Note M p 147. Kehar Singh v State, 1997 Cr LJ 1753 (Raj), water diverted from the accused",
"person's field by the victim to his field without justification, the accused had the right to resort to",
"self-defence of property, but the number of injuries caused was so great as to be sure to cause",
"death, right exceeded, conviction under section 304, Part I.",
"103. Raj Singh v State of Haryana, 2015 Cr LJ 2803 .",
"104. Mohammad Khalil Chisti (Dr) v State of Rajasthan, 2013 Cr LJ637 (SC) : 2013 (1) Mad LJ",
"(Cr) 198, (2013) 2 SCC 541 [LNIND 2012 SC 801] ; Gopal v State of Rajasthan, (2013) 2 SCC 188",
[LNIND 2013 SC 37] : 2013 Cr LJ 1297 .,
"105. Arjun v State of Maharashtra, JT 2012 (4) SC 447 : 2012 (5) Scale 52 [LNIND 2012 SC 283] :",
AIR 2012 SC 2181 [LNIND 2012 SC 283] : (2012) 5 SCC 530 [LNIND 2012 SC 283] : 2012 Cr LJ,
"2641 . See also Mohammad Iqbal v State of MP, 2012 Cr LJ 337 (Chh).",
"106. Sikandar Singh v State of Bihar, (2010) 7 SCC 477 [LNIND 2010 SC 603] : (2010) 8 SCR 373",
: AIR 2010 SC 44023 : 2010 Cr LJ 3854 : (2010) 3 SCC (Cr) 417.,
"107. Raj Pal v State of Haryana, (2006) 9 SCC 678 [LNIND 2006 SC 282] : JT 2006 (11) SC 124",
[LNIND 2006 SC 282] : (2006) 4 Scale 456 [LNIND 2006 SC 282] : (2006) 3 SCC (Cri) 361 [LNIND,
2006 SC 282] .,
"108. Mohd Yusuf v State of UP, 1994 Cr LJ 1631 , 2181.",
"109. PP Sah, 1977 Cr LJ 346 : AIR 1977 SC 704 .",
"110. Rafiq, 1979 Cr LJ 706 : AIR 1979 SC 1179 .",
"111. Ghansham Dass, 1979 Cr LJ 28 : AIR 1979 SC 44 .",
"112. Jassa Singh v State of Haryana, AIR 2002 SC 520 [LNIND 2002 SC 13] . Latel v State of",
"Chhatisgarh, AIR 2001 SC 3474 , possession of the disputed land was with the accused, but the",
"deceased was ploughing it at the relevant time, the accused and his son attacked him and",
"continued to do so even after he had fallen down, held, right of private defence exceeded,",
"punishment under section 304, Part I. State of Karnataka v Shivappa, (1993) Cr LJ 1253 : AIR",
"1998 SC 1536 [LNIND 1997 SC 1597] , the right of private defence exceeded, conviction.",
"113. Katta Surendra v State of AP, (2008) 11 SCC 360 [LNIND 2008 SC 1294] : 2008 Cr LJ 3196 .",
"114. See also Thomas George v State of Kerala, 2000 Cr LJ 3475 : 1999 SCC (Cr) 1308,",
"exceeding the right of private defence, conviction under section 304, Part II.",
"115. Subba Naik, (1898) 21 Mad 249.",
"116. Satyavir Singh Rathi v State Thr CBI, AIR 2011 SC 1748 [LNIND 2011 SC 475] : (2011) 6 SCC",
1 [LNIND 2011 SC 475] : 2011 Cr LJ 2908 .,
"117. Vijender Kumar v State of Delhi, 2010 Cr LJ 3851 : (2010) 12 SCC 381 [LNIND 2010 SC 413]",
: (2011) 1 SCC (Cr) 29.,
"118. Santokh Singh v State of Punjab, AIR 2009 SC 1923 [LNIND 2009 SC 328] : (2009) 11 SCC",
"197 [LNIND 2009 SC 328] ; Arumugam v State Rep by Inspector of Police TN, AIR 2009 SC 331",
[LNIND 2008 SC 1994] : (2008) 15 SCC 590 [LNIND 2008 SC 1994] .,
"119. State of Rajasthan v Islam, (2011) 6 SCC 343 [LNINDORD 2011 SC 309] : AIR 2011 SC 2317",
"[LNINDORD 2011 SC 309] : 2011 Cr LJ 3110 , plea that only one injury of small dimension had",
been caused by appellant to the deceased in the abdomen and he had himself taken the,
"deceased to hospital, an inference be drawn that there was no intention to kill the deceased",
"repelled. The case of the appellant cannot fall within Exception 4 of section 300, IPC, 1860.",
"Vijender Kumar v State of Delhi, 2010 Cr LJ 3851 : (2010) 12 SCC 381 [LNIND 2010 SC 413] :",
(2011) 1 SCC (Cr) 291.,
"120. Abdul Nawaz v State of WB, 2012 Cr LJ 2901 : (2012) 6 SCC 581 [LNIND 2012 SC 307] :",
"2012 (5) Scale 357 [LNIND 2012 SC 307] ; Chinnathaman v State, 2007 (14) SCC 690 [LNIND",
"2007 SC 1485] , Muthu v State, 2009 (17) SCC 433 [LNIND 2007 SC 1303] ; Arumugam v State,",
"2008 (15) SCC 590 [LNIND 2008 SC 1994] ; Ajit Singh v State of Punjab, 2011 (9) SCC 462",
"[LNIND 2011 SC 844] , Vijay Ramkrishan Gaikwad v State of Maharashtra, 2012 (2) Scale 631 ;",
"Sayaji Hanmat Bankar v State of Maharashtra, 2011 AIR (SCW) 4502 : 2011 (7) Scale 710 [LNIND",
"2011 SC 653] : 2011 Cr LJ 4338 : (2011) 8 SCR 234 [LNIND 2011 SC 653] ; State of HP v Ram Pal,",
AIR 2005 SC 4058 .,
"121. Arjun v State of Maharashtra, (2012) 5 SCC 530 [LNIND 2012 SC 283] : 2012 Cr LJ 2641 ,",
where the accused appeared and entered the house and had some quarrel with his deceased,
wife. He threw water pot and thereafter a kerosene lamp. Burning seems to be more because,
lady was wearing nylon sari. She got burnt to the extent of 70%. The Supreme Court held that it,
"was a case clearly falling under Exception 4 of section 300 of IPC, 1860. Sayaji Hanmat Bankar v",
"State of Maharashtra, 2011 (7) Scale 710 [LNIND 2011 SC 653] : 2011 Cr LJ 4338 .",
"122. Nanak Ram v State of Rajasthan, 2014 Cr LJ 1843 : 2014 (I) Supreme 705 .",
"123. Nayamuddin, (1891) 18 Cal 484 (FB). Where there was no evidence of sudden fight or heat",
"of passion and the nature, number and situs of injuries showed that there was cruel manner,",
"conviction for murder, the exception was not attracted, Malkiat Singh v Punjab, AIR 1996 SC",
2590 [LNIND 1996 SC 1198] : 1996 Cr LJ 3583 .,
"124. Zalim Rai, (1864) 1 WR (Cr) 33; Ameera v State, (1866) PR No 12 of 1866. D Sailu v State of",
"AP, (2007) 14 SCC 397 [LNIND 2007 SC 1347] : AIR 2008 SC 505 [LNIND 2007 SC 1347] : 2008",
"Cr LJ 686 , injury to a vital organ in a sudden fight, causing death due to shock and",
"haemorrhage, punishment under section 304, Part I. Byvarapu Raju v State of AP, (2007) 11 SCC",
"218 [LNIND 2007 SC 761] : AIR 2007 SC 1904 [LNIND 2007 SC 761] : 2007 Cr LJ 3204 , the",
"father of the accused came in intoxicated state at night and assaulted the son's wife, a resulting",
quarrel between father and son in which the son injured his father to death because of the injury,
"to a vital organ, case covered by Exception 4.",
"125. State of MP v Shivshankar, 2015 Cr LJ 155 .",
"126. Surain Singh v State of Punjab, AIR 2017 SC 1904 [LNIND 2017 SC 171] .",
"127. Sunnumuduli, (1946) 25 Pat 335. Kesar Singh v State of Haryana, (2008) 15 SCC 753",
"[LNIND 2008 SC 1001] , it postulates a bilateral transaction in which blows are exchanged even",
if they all do not find their target. Provocation per se is not fight. Asking somebody to do,
something again may not be a provocation. Expressing a desire to one's neighbour digging,
foundation that some passage may be left may not be considered to be a demand. In instant,
"case, held, there was no fight, far less sudden fight.",
"128. Atma Singh, AIR 1955 Punj 191 .",
"129. Narayanan, AIR 1956 SC 99 [LNIND 1955 KER 138] : 1956 Cr LJ 278 . Golla Yelugu Govindu",
"v State of AP, (2008) 16 SCC 769 [LNIND 2008 SC 751] : AIR 2008 SC 1842 [LNIND 2008 SC 751]",
": 2008 Cr LJ 2607 : (2008) 2 APLJ 28 , ingredients of the exception restated. Trimbak v State of",
"Maharashtra, (2008) 17 SCC 213 [LNIND 2008 SC 571] , ingredients for bringing the exception",
"into operation restated. Similar restatement in Hawa Singh v State of Haryana, (2009) 3 SCC 411",
[LNIND 2009 SC 77] : (2009) 2 SCC Cri 132 [LNIND 2009 SC 764] : 2009 Cr LJ 1146 . Imtiaz v,
"State of UP, (2007) 15 SCC 299 [LNIND 2007 SC 172] , dispute about drainage of latrine,",
"neighbour objected but to no effect, the attackers came fully armed, the court found",
"premeditation, not suddenness. Iqbal Singh v State of Punjab, (2008) 11 SCC 698 [LNIND 2008",
"SC 1671] , sudden fight over access to agricultural land, death caused, 10 years under this",
"exception. SK Azim v State of Maharashtra, (2008) 11 SCC 695 [LNIND 2008 SC 1408] , death",
"caused in a sudden fight by a single lathi blow on head, 10 years, section 304, Part I. Suresh",
"Kumar v State of HP, (2008) 13 SCC 459 [LNIND 2008 SC 766] : AIR 2008 SC 1973 [LNIND 2008",
"SC 766] : 2008 Cr LJ 2247 , single knife blow in sudden fight, death, 10 years, section 304, Part I.",
"Shankar Diwal Wadu v State of Maharashtra, (2007) 12 SCC 518 [LNIND 2007 SC 363] : AIR 2007",
"SC 1410 [LNIND 2007 SC 363] : 2007 Cr LJ 1802 , attempt to take away brother's wife by the",
"brother accused to keep her as a mistress, this resulted in killing of the brother in a sudden fit of",
"anger, held appropriate conviction under section 304, Part II and not section 302, the accused",
"was already undergoing imprisonment under sentence for 10 years, sentence reduced to the",
"period already undergone. Chinnathaman v State, (2007) 14 SCC 690 [LNIND 2007 SC 1485] :",
"AIR 2008 SC 784 [LNIND 2007 SC 1485] : 2008 Cr LJ 1372 , no premeditation or preplan to",
"cause death, altercation because of entry into the field, injury caused with sickle lying there,",
"punishment under section 304, Part II. Phulia Tadu v State of Bihar, (2007) 14 SCC 588 [LNIND",
"2007 SC 1071] : AIR 2007 SC 3215 [LNIND 2007 SC 1071] : 2007 Cr LJ 4690 , one blow with a",
"small stick, section 304, Part II attracted.",
"130. Sarjug Prasad, AIR 1959 Pat 66 .",
"131. State of UP v Jodha Singh, AIR 1989 SC 1822 : (1989) 3 SCC 465 : 1989 Cr LJ 2113 . See",
"also Surender Kumar v Union Territory, Chandigarh, AIR 1989 SC 1094 [LNIND 1989 SC 140] :",
"1989 Cr LJ 883 , where there was no evidence of acting with cruelty following a quarrel,",
"sentence under section 304, Part I was considered appropriate; V Sreedharan v State of Kerala,",
"AIR 1992 SC 754 : 1992 Cr LJ 1701 , where the sudden impulse was held not to have ended",
simply because the accused chased the deceased for some distance before giving fatal blow.,
"132. State of Karnataka v Shivalingaiah, AIR 1988 SC 115 [LNIND 2012 DEL 2078] : 1988 Cr LJ",
"394 : 1988 SCC (Cr) 881. State of Maharashtra v Suresh, 1989 Cr LJ 1709 (Bom), heat and",
"passion on cattle grazing leading to one blow on the head with a light stick, the deceased fell",
"down, blow not repeated, death, punished under section 325 with RI for one year and fine of Rs.",
"2000. Vadivelu, 1989 Cr LJ 2248 (Mad), causing injury with wooden frame endangering life and",
"resulting in death, guilty under section 326, not section 302. Karan Singh v State, 1988 Cr LJ 315",
"(Del), death caused in sudden quarrel, conviction under section 304, Part II. Ramanbhai v State",
"of Gujarat, 1988 Cr LJ 982 (Guj), quarrel at a bus-stop for Rs. 5/-, moved towards a bridge where",
"as a result of pushing one fell and died, conviction under section 304, Part II.",
"133. Pawan Singh v State of Punjab, (1995) 1 Cr LJ 609 (P&H). Thankachan v State of Kerala,",
"(2007) 14 SCC 501 [LNIND 2007 SC 1325] : AIR 2008 SC 406 [LNIND 2007 SC 1325] , one of the",
"accused dragged the victim out of his home, the latter picked up a soda bottle, the accused also",
"lifted a bottle from a shop and struck him on the head, the victim also hit back with the bottle in",
"his hand, on this the accused exhorted his companions to carry further the attack with the result",
"the victim died with multiple injuries. Ten years' imprisonment awarded under section 304, Part",
"I. Rakesh v State of MP, (2007) 14 SCC 504 [LNIND 2008 SC 298] : AIR 2008 SC 1229 [LNIND",
"2008 SC 298] : 2008 Cr LJ 1646 , comparison of requirements of sections 1 and 4.",
"134. Balwant Ram v State of Rajasthan, 1995 Cr LJ 3856 (Raj).",
"135. Baleshwar Mahto v State of Bihar, AIR 2017 SC 873 [LNINDU 2017 SC 8] .",
"136. Kikar Singh v State of Rajasthan, 1993 Cr LJ 3255 : AIR 1993 SC 2426 [LNIND 1993 SC 456]",
": (1993) 4 SCC 238 [LNIND 1993 SC 456] . Kudesh Mondal v State of WB, (2007) 8 SCC 578",
"[LNIND 2007 SC 1043] : AIR 2007 SC 3228 [LNIND 2007 SC 1043] , a passerby started inquiring",
into a killing incident originating over a trivial matter. He was dragged by one and struck a fatal,
"blow by the other. The court applied this exception. Conviction under section 304, Part I. Salim",
"Sahab v State of MP, (2007) 1 SCC 699 [LNIND 2006 SC 1089] : (2007) 103 Cut LT 531, another",
"similar death caused in a quarrel, conviction under section 304, Part II, seven years RI. Vadla",
"Chandraiah v State of AP, (2006) 13 SCC 587 [LNIND 2006 SC 1103] : 2007 Cr LJ 770 , quarrel",
between fruit vendor and a police constable for not paying for fruits consumed. Constable,
"attacked him with his service weapon to death. Punishment under section 304, Part II. Pappu v",
"State of MP, 2006 Cr LJ 3640 , murder as a result of a single lathi blow in a sudden quarrel, the",
"accused was not armed with any weapon. Conviction under section 304, Part II, Pulicheria",
"Nagaraju v State of AP, 2006 Cr LJ 3899 , another similar case with this observation that a single",
blow injury resulting in death is not a ground in itself for holding that the case would come,
"under section 304 and not under section 302. Khambam Raja Reddy v Public Prosecutor, HC,",
"Andhra, 2006 Cr LJ 4652 , allegation that on exhortation of the co-accused, the accused picked",
up a big stone piece and threw it on the head of the deceased. This could not be true because,
he was suffering from polio and could not have picked up the stone. His conviction was set,
aside.,
"137. Suresh Kumar v State of HP, (2008) 13 SCC 459 [LNIND 2008 SC 766] : AIR 2008 SC 1973",
"[LNIND 2008 SC 766] : 2008 Cr LJ 2247 . Bengaru Venkata Rao v State of AP, (2008) 9 SCC 707",
[LNIND 2008 SC 1585] : 2008 Cr LJ 4353 .,
"138. Anil v State of Haryana, (2007) 10 SCC 274 [LNIND 2007 SC 629] : 2007 Cr LJ 4294 .",
"139. Bhagwan Munjaji, 1979 Cr LJ 49 (SC).",
"140. Prabhu v State of UP, AIR 1991 SC 1069 : 1991 Cr LJ 1373 . Single assault attributed to",
"each of the accused in the course of sudden quarrel in heat of passion, Exception 4 to section",
"300 attracted, conviction altered from section 300 to section 304, Part II, Subodh Behera v State",
"of Orissa, 1996 Cr LJ 168 (Ori). The accused, seeing his father being beaten by the deceased,",
caused death of the assailant by inflicting injuries on his head in a heat of passion but the,
"accused did not act in a cruel or unreasonable manner, held Exception 4 to section 300",
"attracted, the offence covered under section 304, Part I, State of MP v Mohandas, 1992 Cr LJ",
101 (MP). The accused brother caused a single injury without pre-meditation in a sudden fight,
"and in heat of passion to his brother which proved fatal, he neither took undue advantage nor",
"acted in a cruel manner, held Exception 4 to section 300 attracted, liable to be punished under",
"section 304, Part I and not under section 302. Suraj Mal v State of Punjab, AIR 1992 SC 559 :",
"1992 Cr LJ 520 : 1993 Supp (1) SCC 639 . The accused, over a trivial matter of the next day of",
"Holi festival and without any pre-meditation or any enmity with the victim, suddenly inflicted a",
"single knife blow on his chest which proved fatal, held, the offence fell within Exception 4 of",
"section 300, punishable under section 304, Part I, not under section 302. Prakash v State of",
"Rajasthan, 1994 Cr LJ 3019 (Raj). See also Pitchaimani v State of T.N., 1994 Cr LJ 2606 (Mad),",
"wordy duel, sudden quarrel, no pre-meditation, culpable homicide not amounting to murder.",
"141. Sukhbir Singh v State of Haryana, AIR 2002 SC 1168 [LNIND 2002 SC 134] ; Bajjappa v State",
"of Karnataka, 1999 Cr LJ 958 (Kant), altercation resulting in violent assault at the spur of",
"moment. The accused was an agriculturist with clean record, had three children, in custody for",
"considerable period, sentence reduced to five years RI, fine Rs. 1000. Lakhwinder Singh v State of",
"Punjab, AIR 2003 SC 2577 [LNIND 2002 SC 820] , the accused suffered 19 injuries, two of them",
"grievous, the prosecution could not say that they did not know such extensive injuries or that",
"they were self-accused, explanation by the prosecution was necessary, failure led to the",
inference that the true genesis and manner of the incident was not disclosed. Ramesh Krishna,
"Madhusudan Nayar v State of Maharashtra, (2008) 14 SCC 491 [LNIND 2008 SC 18] : (2009) 2",
"SCC Cri 759 : AIR 2008 SC 927 [LNIND 2008 SC 18] : 2008 Cr LJ 1023 , two blows with a piece of",
wood inflicted after quarrel for several hours about putting off the light of the staff room at,
"night. Exception 4 attracted. Arumugan v State, (2008) 115 SCC 490 : AIR 2009 SC 331 [LNIND",
"2008 SC 1994] , fight over panchayat election, the victim dragged out from his home, exchange",
"of hot words, blows inflicted by the accused and his companions. Exception attracted. Raghbir",
"Singh v State of Haryana, (2008) 16 SCC 33 [LNIND 2008 SC 2228] : AIR 2009 SC 223 : (2009) 73",
"AIC 93 , lathi blows in the course of a sudden quarrel, exception applied. Parkash Chand v State",
"of HP, (2004) 11 SCC 381 [LNIND 2004 SC 759] : AIR 2004 SC 4496 [LNIND 2004 SC 759] , one",
"brother's dogs entered the kitchen of the other, the latter protested, heated altercation ensued,",
"one went into his room, came out with a gun, shot at the other from a distance of 35 feet, death",
"ensued. Exception applied. Preetam Singh v State of Rajasthan, (2003) 12 SCC 594 , there being",
"a background to the struggle, the court did not regard the fight to be sudden. Hence, the",
"exception not attracted. State of Maharashtra v Manjurrya, (2003) 12 SCC 787 , the attacking",
"party came fully prepared and caused death as in an organised manner, no feature of a sudden",
"fight. Sachchey Lal Tiwari v State of UP, (2004) 11 SCC 410 [LNIND 2004 SC 1041] : AIR 2004 SC",
"5039 [LNIND 2004 SC 1041] , dividing line between two fields dismissed by the attacking party,",
fired pistol shots at the opponent killing his two sons. The exception not applicable. Umesh Jha,
"v State of Bihar, (2004) 12 SCC 329 , genesis in lands dispute, but murder pre-meditated,",
Exception 4 not applicable.,
"142. Sikandar v State (Delhi) Admn, AIR 1999 SC 1406 [LNIND 1999 SC 351] : 1999 Cr LJ 2098 .",
"Hari Shankar v State of Rajasthan, AIR 1999 SC 2629 : 1999 Cr LJ 2902 , exchange of hard words,",
"burning kerosene stove wick thrown, knowledge of likely death, conviction under section 304.",
"143. Mahesh Balmiki v State of MP, 1999 Cr LJ 4310 : AIR 1999 SC 3338 [LNIND 1999 SC 755] ;",
"Rameshraya v State of MP, AIR 2001 SC 1229 : 2001 Cr LJ 1452 (SC). Sudden fight, but murder",
"committed in most brutal manner conviction under section 302. Abdul Kader v State of Gujarat,",
"1999 Cr LJ 5027 (Guj), police on duty during Muslim festivities tried to prevent gambling, the",
"accused, who was friendly with gamblers, gave one knife injury to a police constable resulting in",
"death. The court noted that there was no premeditation, the act was the result of heat of",
"passion, no undue advantage, Exception 4 attracted, conviction under section 304, Part II, seven",
"years' imprisonment. Resham Singh v State of Punjab, AIR 2002 SC 2625 : 2002 Cr LJ 3506 , fight",
"from both sides, Exception 4 attracted, conviction under section 304, Part II. Naresh Janimal",
"Lohana v State, 1998 Cr LJ 3574 (Guj), domestic quarrel between parties on question of",
"throwing away some mango waste, male members came out and started taking part in the",
"sudden fight, the accused gave one blow in the scuffle by wielding a knife in the sudden heat of",
"passion. No premeditation. Exception 4 attracted. Pawan Kumar v State, 1997 Cr LJ 3631 (P&H),",
"sudden quarrel over snatching of newspaper, single knife blow, acting at the spur of moment",
"without premeditation, Exception 4 attracted, conviction under section 304, Part II. Lekh Raj v",
"State, 1997 Cr LJ 3663 (HP), accused entered into victim's house and inflicted knife blows on",
"vital parts, conviction under section 302, Exception 4 not attracted. Surinder Kumar v State, 1997",
"Cr LJ 2872 (P&H), during an altercation, the accused pushed the victim, whose head dashed",
"against the wall causing death. The accused given benefit of the exception, conviction under",
"section 304, Part I. Uday Singh v State of UP, AIR 2002 SC 3143 [LNIND 2002 SC 545] , sudden",
"fight between the accused persons and their victim, both unarmed, both accused held their",
"victim by his neck with pressure that he died, neither knew about the pressure being put by the",
"other, no common intention to cause death, only knowledge, conviction under section 304, Part",
"II. Bala Baine Linga Raju v State of AP, (2009) 6 SCC 706 [LNIND 2009 SC 1104] : (2009) 3 SCC Cr",
"13 : 2009 Cr LJ 3426 , in the absence of appeal by state, the Supreme Court did not enhance the",
sentence to that for murder despite the fact that the case was that of murder and not coming,
under the exception.,
"144. Sukhdev v State of Punjab, (2007) 16 SCC 364 . The court considered cases relating to",
"importance of premeditation and undue or unfair advantage. Rakesh v State of MP, (2007) 14",
"SCC 504 [LNIND 2008 SC 298] : AIR 2008 SC 1229 [LNIND 2008 SC 298] : 2008 Cr LJ 646 , one",
"of them assaulted their victim with knife, three others gave him kicks and fists blows. The trial",
court convicted the main accused under section 302 and also others under sections 302/34.,
The High Court maintained the conviction of main accused under section 302 and convicted,
others under sections 326/34. The Supreme Court convicted and punished all of them under,
"sections 304/34, Part I, 10 years. Gurdev Raj v State of Punjab, (2007) 13 SCC 380 [LNIND 2007",
"SC 1180] : 2008 Cr LJ 382 , conviction altered from section 302 to section 304, Part I. Shambhao",
"Singh v State of Rajasthan, (2008) 11 SCC 637 [LNIND 2008 SC 1492] : AIR 2008 SC 3200 [LNIND",
"2008 SC 1492] , quarrel in land dispute, stabbing, one died, other family members injured,",
"conviction under section 304, Part 1, 10 years, would meet the ends of justice. Baij Nath v State",
"of UP, (2008) 11 SCC 738 [LNIND 2008 SC 1374] , one lathi blow on head, causing, fracture and",
"death, seven years under section 304, Part I.",
"145. Sada Ram v State of Haryana, (2006) 13 SCC 528 . Sandhya Jadhav v State of Maharashtra,",
"2006 Cr LJ 2111 SC, landlord demanded rent, the tenant (accused) assaulted him, nephew of",
"landlord, who tried to intervene was given a knife blow causing death, conviction altered to",
"section 304, Part II from section 302.",
"146. Suresh Chandra v State of UP, 2005 Cr LJ 3449 : AIR 2005 SC 9 [LNIND 2004 SC 1110] :",
(2005) 1 SCC 122 [LNIND 2004 SC 1110] .,
"147. Santokh Singh v State of Punjab, AIR 2009 SC 1923 [LNIND 2009 SC 328] : (2009) 11 SCC",
"197 [LNIND 2009 SC 328] ; Arumugam v State Rep by Inspector of Police TN, AIR 2009 SC 331",
"[LNIND 2008 SC 1994] : (2008) 15 SCC 590 [LNIND 2008 SC 1994] ; D Sailu v State of AP, AIR",
2008 SC 505 [LNIND 2007 SC 1347] : (2007) 14 SCC 397 [LNIND 2007 SC 1347] .,
"148. Sridhar Bhuyan v State of Orissa, (2004) 11 SCC 395 [LNIND 2004 SC 758] : AIR 2004 SC",
4100 [LNIND 2004 SC 758] : 2004 Cr LJ 3875 .,
"149. Note M, p 145.",
"150. Nayamuddin, (1891) 18 Cal 484 (FB).",
"151. Ambalathil, AIR 1956 Mad 97 .",
"152. Halliday, (1889) 61 LT 701 , 702.",
"153. Towers, (1874) 12 Cox 530, 533.",
"154. Lal Bahadur v State (NCT of Delhi), (2013) 4 SCC 557 [LNIND 2014 SC 553] ; 2013 Cr LJ",
2205 : 2013 (2) SCC (Cr) 516.,
"155. Adu Shikdar, (1885) 11Cal 635; Bhairon Lal, (1952) 2 Raj 669 ; Ram Chandra v State, AIR",
1957 SC 381 : 1957 Cr LJ 559 .,
"156. Rama Nand, 1981 Cr LJ 298 : AIR 1981 SC 738 [LNIND 1981 SC 5] . See further Manguli",
"Devi v State of Orissa, AIR 1989 SC 483 : 1989 Cr LJ 823 : 1989 Supp (1) SCC 161 , where dead",
body was discovered in decomposed state and no wounds were visible yet the conviction of the,
"widow of the deceased on the basis of her confession was sustained; Rama Nand v State of UP,",
AIR 1981 SC 738 [LNIND 1981 SC 5] : (1981) 2 SCR 444 [LNIND 1981 SC 5] : 1981 Cr LJ 298 :,
"1981 Mad LJ (Cr) 241. Amar Layek v State of WB, 1988 Cr LJ 1293 (Cal), only skeleton of bones",
"and other personal articles recovered on lead given by accused, held guilty of murder. Hari",
"Kishan v State of Haryana, 1990 Cr LJ 385 (P&H), good evidence, though corpus delecti not",
"traceable. But see Bhupendra Singh v State of UP, AIR 1991 SC 1083 [LNIND 1991 SC 151] : 1991",
"Cr LJ 1337 : (1991) 2 SCC 750 [LNIND 1991 SC 151] , where the body of the deceased was burnt",
"and pieces of bones which were recovered were not sufficient to establish the age, sex or",
"identity. Conviction even under section 201 was set aside. Sevaka Perumal v State of TN, AIR",
"1991 SC 1463 [LNIND 1991 SC 269] : 1991 Cr LJ 1845 , murder charge can be established by",
"evidence, though dead body may not be traceable. Arun Kumar v State of UP, 1989 Cr LJ 1460 :",
"AIR 1989 SC 1445 : 1989 Supp (2) 332 , dead body of victim of rape not traceable, conviction",
under section 366 justified.,
"157. Rishipal v State of Uttarakhand, 2013 Cr LJ 1534 (SC) : 2013 AIR (SCW) 1167; Lakshmi v",
"State of UP, 2002 (7) SCC 198 [LNIND 2002 SC 534] ; State of Karnataka v MV Mahesh, 2003 (3)",
SCC 353 [LNIND 2003 SC 270] .,
"158. Jitender Kumar v State of Haryana, 2012 Cr LJ 3085 : AIR 2012 SC 2488 [LNIND 2012 SC",
331] : (2012) 6 SCC 204 [LNINDORD 2012 SC 412] ; The state of the contents of the stomach,
found at the time of medical examination is not a safe guide for determining the time of the,
"occurrence because that would be a matter of speculation, in the absence of reliable evidence",
on the question as to when the deceased had his last meal and what that meal consisted of.,
"Masjit Tato Rawool v State of Maharashtra, (1971) SCC (Cr) 732; Gopal Singh v State of UP, AIR",
"1979 SC 1932 ; Sheo Darshan v State of UP, (1972) SCC (Cr) 394. [The presence of faecal matter",
"in the intestines is not conclusive, as the deceased might be suffering from constipation. Where",
"there is positive direct evidence about the time of occurrence, it is not open to the court to",
speculate about the time of occurrence by the presence of faecal matter in the intestines; Sheo,
"Dershan v State of UP, (1972) SCC (Cr) 394. The question of time of death of the victim should",
not be decided only by taking into consideration the state of food in the stomach. That may be a,
"factor which should be considered along with other evidence, but that fact alone cannot be",
"decisive; R Prakash v State of UP, (1969) 1 SCC 48 . Also see Shivappa v State of Karnataka,",
"(1995) 2 SCC 76 [LNIND 1994 SC 1111] ; Jabbar Singh v State of Rajasthan, (1994) SCC (Cr)",
"1745. Bijendra Bhagat v State of Uttarakhand, 2015 Cr LJ 3150 , the injuries suffered by the",
"deceased are incised wounds and one fire arm injury. However, none of the injuries on the",
person of the deceased could be attributed to the lathi which was supposedly in the hands of,
the appellant. Benefit of doubt given.,
"159. Raju v State of Chhatisgarh, 2014 Cr LJ 4425 : 2014 (9) SCJ 453 [LNINDORD 2014 SC",
19031] .,
"160. Deepa v State of Haryana, 2015 Cr LJ 2508 .",
"161. Jagtar Singh v State of Haryana, 2015 Cr LJ 3418 .",
"162. Alagarsamy v State by DSP, 2010 Cr LJ 29 : AIR 2010 SC 849 [LNIND 2009 SC 1914] . See",
"also Arun Kumar Sharma v State of Bihar, (2010) 1 SCC 108 [LNIND 2009 SC 1866] : 2010 Cr LJ",
"428 , where FIR was sent to the Magistrate after five days.",
"163. Awadesh Kumar Shukla v State of UP, 2015 (7) ADJ 530 [LNIND 2015 ALL 190] : 2015 (6)",
ALJ 665 (All).,
"164. Dilawar Singh v State of Haryana, 2014 Cr LJ 4844 : (2015) 1 SCC 737 [LNIND 2014 SC 823]",
.,
"165. State of Rajasthan v Chandgi Ram, 2014 Cr LJ 4571 : 2014 (10) Scale 352 [LNIND 2014 SC",
811] .,
"166. Sudarshan v State of Maharashtra, 2014 Cr LJ 3232 : 2015 (5) SCJ 358 . See also State of",
"Karnataka v Sateesh, 2015 Cr LJ 3427 .",
"167. Rishipal v State of Uttarakhand, 2013 Cr LJ 1534 (SC) : 2013 AIR (SCW) 1167; Sukhram v",
"State of Maharashtra, 2007 (7) SCC 502 [LNIND 2007 SC 969] ; Sunil Clifford Daniel (Dr) v State of",
"Punjab, 2012 (8) Scale 670 [LNIND 2012 SC 551] , Pannayar v State of TN by Inspector of Police,",
2009 (9) SCC 152 [LNIND 2009 SC 1687] .,
"168. Sanaulla Khan v State of Bihar, (2013) 3 SCC 52 [LNIND 2013 SC 120] : 2013 Cr LJ 1527 ;",
"Ujjagar Singh v State of Punjab, 2007 (13) SCC 90 [LNIND 2007 SC 1486] .",
"169. Gosu Jairami Reddy v State of AP, AIR 2011 SC 3147 [LNIND 2011 SC 2666] : 2011 Cr LJ",
"4387 : (2011) 11 SCC 766 [LNIND 2011 SC 2666] ; Abu Thakir v State, (2010) 5 SCC 91 [LNIND",
2010 SC 366] : AIR 2010 SC 2119 [LNIND 2010 SC 366] : 2010 Cr LJ 2840 .,
"170. Ashok Rai v State of UP, 2014 Cr LJ 3085 : 2014 (10) SCJ 729 [LNINDU 2014 SC 21] .",
"171. Rambraksh v State of Chhattisgarh, 2016 Cr LJ 2939 : 2016 (5) SCJ 600 ; Dharam Deo",
"Yadav v State of UP, 2014 Cr LJ 2371 : 2014 (2) ALT (Cr) 322 (SC).",
"172. Rishipal v State of Uttarakhand, 2013 Cr LJ 1534 (SC) : 2013 AIR (SCW) 1167; Mohibur",
"Rahman v State of Assam, 2002 (6) SCC 715 ; in Arjun Marik v State of Bihar, 1994 Supp (2) SCC",
"372 , Supreme Court reiterated that the solitary circumstance of the accused and victim being",
last seen will not complete the chain of circumstances for the Court to record a finding that it is,
consistent only with the hypothesis of the guilt of the accused. No conviction on that basis,
"alone can, therefore, be founded. So also in Godabarish Mishra v Kuntala Mishra, 1996 (11) SCC",
"264 [LNIND 1996 SC 1719] , the Supreme Court declared that the theory of last seen together is",
not of universal application and may not always be sufficient to sustain a conviction unless,
"supported by other links in the chain of circumstances; State of Goa v Sanjay Thakran, 2007 (3)",
"SCC 755 [LNIND 2007 SC 274] ; Bodh Raj @ Bodha v State of Jammu and Kashmir, 2002 (8) SCC",
"45 [LNIND 2002 SC 539] ; Jaswant Gir v State of Punjab, 2005 (12) SCC 438 ; see Manthuri Laxmi",
"Narasaiah v State of AP, 2012 Cr LJ 2172 : AIR 2011 SC (Supp) 73, in which the evidence of last",
seen rejected by the Supreme Court.,
"173. Also see Shyamal Ghosh v State of WB, (2012) 7 SCC 646 [LNIND 2012 SC 397] : 2012 Cr",
"LJ 3825 : AIR 2012 SC 3539 [LNIND 2012 SC 397] ; Inspector of Police TN v John David, (2011) 5",
"SCC 509 [LNIND 2011 SC 441] : 2011 Cr LJ 3366 : (2011) 2 SCC (Cri) 647 , 'last seen alive theory",
"accepted'. See also Mannan v State of Bihar, (2011) 5 SCC 317 [LNIND 2011 SC 440] : 2011 Cr",
LJ 3380 : (2011) 2 SCC (Cri) 626 .,
"174. Arabindra Mukherjee v State of WB, 2012 AIR (SCW) 1032 : 2012 Cr LJ 1207 .",
"175. State Through CBI v Mahender Singh Dahiya, (2011) 3 SCC 109 [LNIND 2011 SC 114] : AIR",
"2011 SC 1017 [LNIND 2011 SC 114] : 2011 Cr LJ 2177 , last seen evidence would not always",
mean that the accused had killed the deceased.,
"176. C Perumal v Rajasekaran, 2012 AIR (SCW) 3641 : 2012 Cr LJ 3491 .",
"177. Rambraksh v State of Chhattisgarh, 2016 Cr LJ 2939 : 2016 (5) SCJ 600 .",
"178. Kanhaiya Lal v State of Rajasthan, 2014 Cr LJ 1950 : 2014 (4) WLN 299 (SC).",
"179. Mahavir Singh v State of Haryana, 2014 Cr LJ 3228 : 2014 (7) Scale 477 .",
"180. Surender Prashad v State, (2014) 209 DLT 461 : 2014 VI AD (Del) 234.",
"181. Bikau Pandey v State of Bihar, AIR 2004 SC 997 [LNIND 2003 SC 1027] : (2003) 12 SCC 616",
"[LNIND 2003 SC 1027] ; Dalbir Singh v State of Haryana, AIR 2008 SC 2389 [LNIND 2008 SC",
"1218] : (2008) 11 SCC 425 [LNIND 2008 SC 1218] ; Nishan Singh v State of Punjab, AIR 2008 SC",
1661 [LNIND 2008 SC 2718] : (2008) 17 SCC 505 [LNIND 2008 SC 2718] . See also Balraje v,
"State of Maharashtra, (2010) 6 SCC 673 [LNIND 2010 SC 487] : 2010 Cr LJ 3443 ; Satvir v State of",
"UP, AIR 2009 SC 1741 [LNIND 2009 SC 124] : 2009 Cr LJ 1586 : (2009) 4 SCC 289 [LNIND 2009",
SC 124] .,
"182. Mukesh v State for NCT of Delhi, 2017 (5) Scale 506 .",
THE INDIAN PENAL CODE,
CHAPTER XVI OF OFFENCES AFFECTING THE HUMAN BODY OF,
OFFENCES AFFECTING LIFE,
[s 301] Culpable homicide by causing death of person other than person whose,
death was intended.,
"If a person, by doing anything which he intends or knows to be likely to cause death,",
"commits culpable homicide by causing the death of any person, whose death he",
"neither intends nor knows himself to be likely to cause, the culpable homicide",
committed by the offender is of the description of which it would have been if he had,
caused the death of the person whose death he intended or knew himself to be likely,
to cause.,
COMMENT.—,
"Doctrine of transferred malice.—Section 301 of IPC, 1860 specifies that if a person by",
"doing anything which he intends or knows to be likely to cause death, commits",
"culpable homicide by causing death of any person whose death he neither intends, nor",
"knows himself to be likely to cause, culpable homicide committed by the offender is of",
"the description of which it would have been, if he had caused the death of the person,",
whose death he intended or knew himself to be likely to cause.183. Blow aimed at the,
"intended victim, if alights on another, offence is the same as it would have been if the",
blow had struck the intended victim.184. This section lays down that culpable homicide,
may be committed by causing the death of a person whom the offender neither,
"intended, nor knew himself to be likely, to kill. This section embodies what the English",
authors describe as the doctrine of transfer of malice or the transmigration of motive.,
"Under this section, if A intends to kill B but kills C whose death he neither intends nor",
"knows himself to be likely to cause, the intention to kill C is, by law attributed to",
him.185.,
If the killing takes place in the course of doing an act which a person intends or knows,
"to be likely to cause death, it ought to be treated as if the real intention of the killer had",
been actually carried out.,
"Where a mistake is made in respect of the person, as where the offender shoots at A",
"supposing that he is shooting at B, it is clear that the difference of person can make",
none in the offence or its consequences; the crime consists in the wilful doing of a,
"prohibited act; the act of shooting at A was wilful, although the offender mistook him",
for another.,
Where the accused was deliberately trying to shoot at a fleeing man who had criticised,
his father in a School Committee Meeting but unfortunately his own maternal uncle,
"came in between him and the intended victim and thus got killed, it was held that the",
"act of the accused was nothing but murder under section 302 read with section 301,",
"IPC, 1860.186. In an altercation between parties, the accused persons fired",
"indiscriminately upon the fleeing party, one shot hit a person and second caused the",
death of the complainant's 10-year-old son. The episode took place in a commercial,
locality. The death was held to be intentional murder punishable under sections,
300/301.187. The accused reached his intended victim's house. The latter hid himself,
somewhere else. The accused chased him there and standing before that house fired,
into it. The housewife became prey and fell dead. It was held that under the doctrine of,
"transfer of malice, the accused must be convicted under sections 302 and 307 and",
sentenced to life imprisonment.188. Where the accused intended to kill a particular,
person by his lorry but another person chanced to come before the lorry and happened,
"to be killed, an offence under this section was committed and the accused was",
convicted under section 302.189.,
"Similarly, there will be no difference where the injury intended for one falls on another",
"by accident. If A makes a thrust at B, meaning to kill, and C throwing himself between,",
"receives the thrust and dies, A will answer for it as if his mortal purpose had taken",
place on B.,
"The same principle is applicable where, through accident or the mistake of a party not",
"privy to the criminal design, the mischief falls either on a person not intended, or on the",
party intended but in a different manner from that intended.190. Accused had entered,
the house of witness to kill him but due to non-availability of electricity and under the,
wrong impression he killed the deceased. Death of deceased can be said to be,
accidental due to mistaken identity rather than any intentional act of accused. Order of,
"conviction of accused under section 302, IPC, 1860 is modified to one under section",
"304, Part II, IPC, 1860.191.",
"In a scuffle between accused persons and the complainant's party, one member on the",
accused's side fired a shot at a particular member on the complainant's side but the,
shot actually hit another person who died. The Court held that the doctrine of,
transferred malice was attracted. The act of the accused would be covered by section,
"304 and he was liable to be convicted under Part II of that section, though the",
deceased was neither aimed at nor intended to be harmed by the accused.192.,
It is not a disputed fact as to whose fire shot resulted in the death of the deceased. The,
only question which is to be examined here is whether the offence committed by the,
"respondent is culpable homicide amounting to murder, punishable under section 302 or",
"culpable homicide not amounting to murder, punishable under section 304, Part I. Here,",
the intention on the part of the respondent-accused in causing bodily injury as is likely,
to cause death is also not a disputed fact. The only thing which is to be tested is,
"whether the bodily injury is covered under either of the clauses of section 300 of IPC,",
1860 (transfer of malice doctrine applied).193.,
[s 301.1] Transfer of malice.—,
The accused intended to cause death of his victim. But the stab aimed at him fell on,
the chest of the deceased resulting in his death. It was held that as per the doctrine of,
"transfer of malice, it must be presumed that the accused intended to cause death of",
the deceased alone. His act attracted the offence under section 301 read with section,
302.194.,
[s 301.2] CASES.—,
"Four persons were shooting at R in furtherance of their common intention to kill M, in",
the bona fide belief that R was M. R died as a result of the gunshot wounds. It was held,
by the Supreme Court that the accuseds were guilty under section 302 read with,
section 34 and that section 301 had no application.195.,
"183. Dan Behari v State of UP, 2003 Cr LJ 4959 .",
"184. Viswanath Pillai v State of Kerala, 1994 Cr LJ 1037 , the court referred Ballan v The State,",
"AIR 1955 All 626 [LNIND 1955 ALL 71] , wherein the scope of section 301 was discussed and",
"Suba v Emperor, AIR 1928 Lah 344 : 1928 (29) Cr LJ 280 .",
"185. Shankarlal, AIR 1965 SC 1260 [LNIND 1964 SC 230] : (1965) 2 Cr LJ 266 .",
"186. Gyanendra Kumar v State, 1972 Cr LJ 308 : AIR 1972 SC 502 [LNIND 1971 SC 601] .",
"187. Abdul v State of Gujarat, (1995) 1 Cr LJ 464 : AIR 1994 SC 1910 [LNIND 1994 SC 209] .",
"188. Jagpal Singh v State of Punjab, AIR 1991 SC 982 : 1991 Cr LJ 597 : 1991 Supp (1) SCC 549",
.,
"189. Padmanabhan v State of Kerala, 1988 Cr LJ 591 (Ker).",
"190. 7th Parl Rep 26; Jeoli, (1916) 39 All 161 .",
"191. Geja Sabar v State of Orissa, 2009 Cr LJ 4685 .",
"192. Kashi Ram v State of MP, AIR 2001 SC 2902 [LNIND 2001 SC 2369] . Rameshwar v State of",
"UP, 1997 Cr LJ 2677 (All), a minor killed by gunshot injury, the accused wanted to kill the victim's",
"father. Conviction under section 304, Part I.",
"193. State of Rajasthan v Ram Kailash, AIR 2016 SC 634 [LNIND 2016 SC 41] : (2016) 4 SCC 590",
[LNIND 2016 SC 41] .,
"194. Nagaraj v State, 2006 Cr LJ 3724 (Mad—DB).",
"195. Shankarlal, AIR 1965 SC 1260 [LNIND 1964 SC 230] . See also Balwinder v State of Punjab,",
(1987) 1 SCC 1 [LNIND 1986 SC 482] : 1987 Cr LJ 330 : AIR 1987 SC 350 [LNIND 1986 SC 482],
"where a conviction was upheld on the basis of circumstantial evidence only, such as, last seen",
"together, abscondence, recovery of dead body at his instance, and false pleas. But no such",
"conviction was upheld in Kansa Bahera v State of Orissa, 1987 Cr LJ 1857 : (1987) 1 SCC 480 :",
"AIR 1987 SC 1507 [LNIND 1987 SC 383] , because the circumstances were not capable of",
leading to the single point conclusion of the guilt of the accused person. The Supreme Court,
has reiterated that a High Court should not grant anticipatory bail to a person against whom a,
"report of dowry death is under investigation. Samunder Singh v State of Rajasthan, (1987) 1 SCC",
466 [LNIND 1987 SC 38] : AIR 1987 SC 737 [LNIND 1987 SC 38] . For an example of conviction,
"under the section for bride-burning see Surinder Kumar v State (Delhi Administration, Delhi),",
(1987) 1 SCC 467 [LNIND 1987 SC 38] : AIR 1987 SC 692 : 1987 Cr LJ 537 . For burning a,
"mistress and conviction on the basis of her dying declaration, see, Suresh v State of MP, (1987) 2",
"SCC 32 : 1987 Cr LJ 775 : AIR 1987 SC 860 . Unless there is infirmity, illegality, failure of justice",
"or question of principle, the court does not interfere in a concurrent sentence and conviction by",
"trial and High Court. Gopal v State of Tamil Nadu, (1986) 2 SCC 93 [LNIND 1986 SC 26] : AIR",
"1986 SC 702 [LNIND 1986 SC 26] . Ashok Kumar Chatterjee v State of M.P., AIR 1989 SC 1890 :",
"1989 Cr LJ 2124 : 1989 Supp (1) SCC 560 ; Death caused by gunshot injuries, remarkable eye-",
"witness account, conviction, Bikkar Singh v State of Punjab, AIR 1989 SC 1440 : 1989 Cr LJ 1457",
", but acquittal where eye-witness's account was doubtful, prosecution version different from",
dying declaration and no explanation of injuries on the person of the accused; State of U.P. v,
"Madan Mohan, AIR 1989 SC 1519 : 1989 Cr LJ 1485 : (1989) 3 SCC 390 ; charges of abduction,",
"murder and rape, trial court acquitting because body was not traceable, High Court convicting",
"for abduction, conviction sustained, Arun Kumar v State of U.P., AIR 1989 SC 1445 : 1989 Cr LJ",
"1460 : 1989 Supp (2) SCC 322 . Re-appreciation of evidence in the absence of the counsel,",
"conviction found justified, Daya Ram v State (Delhi) Admn), (1988) 1 SCC 615 [LNIND 1988 SC",
41] : AIR 1988 SC 613 : 1988 Cr LJ 865 .,
THE INDIAN PENAL CODE,
CHAPTER XVI OF OFFENCES AFFECTING THE HUMAN BODY OF,
OFFENCES AFFECTING LIFE,
[s 302] Punishment for murder.,
"Whoever commits murder shall be punished with death, or 196.[imprisonment for life],",
and shall also be liable to fine.,
COMMENT.—,
Section 302 provides the punishment for murder. It stipulates a punishment of death or,
imprisonment for life and fine. Once an offender is found by the Court to be guilty of,
"the offence of murder under section 302, then it has to sentence the offender to either",
death or for imprisonment for life. The Court has no power to impose any lesser,
sentence.,
[s 302.1] Punishment for murder.—Evolution.—,
"Cr PC, 1898 had section 376(5) which required that if an accused is convicted of an",
offence punishable with death and the Court sentences him with any punishment other,
"than death, the Court shall, in its judgment, give reasons why death sentence was not",
passed. The provision of section 367(5) of the 1898 Code reads as follows:,
"(5) If the accused is convicted of an offence punishable with death, and the Court",
"sentences him to any punishment other than death, the Court shall in its judgment state",
the reason why sentence of death was not passed.,
"In 1955, Cr PC (Amendment) Act, 1955 deleted the aforesaid section 367(5) of the",
"1898 Code. As a result of this amendment, which came into effect from 1 January",
"1956, it was no longer necessary for a Court to record in its judgment, in case of",
"conviction in connection with an offence punishable with death, any reason for not",
"imposing the death sentence. Thus, in the new Code, the discretion of the judge to",
"impose death sentence has been narrowed, for the Court has to provide special",
reasons for imposing a sentence of death. It has made imprisonment for life the rule,
"and death sentence an exception, in the matter of awarding punishment for murder.197.",
Reference to extenuating or mitigating circumstances in a case of death penalty was,
made possibly for the first time by Supreme Court in the case of Nawab Singh v State of,
"UP.198. The Court held that in the facts of that case, murder was a cruel and deliberate",
"one and there were no extenuating circumstances. After the amendment of 1898 Code,",
"in the year 1955, the first case relating to death sentence, which came before Supreme",
"Court was that of Vadivelu Thevar v State of Madras,199. in which it was held that the",
"question of sentence has to be determined, not with reference to the volume or",
character of the evidence adduced by the prosecution in support of the prosecution,
"case, but with reference to the fact whether there are any extenuating circumstances",
which can be said to mitigate the enormity of the crime. If the Court is satisfied that,
"there are such mitigating circumstances, only then, it would be justified in imposing the",
lesser of the two sentences provided by law.,
[s 302.2] Constitutionality of Death penalty.—,
The constitutionality of death sentence was challenged in the case of Jagmohan Singh,
v State of UP.200. The Constitution Bench while upholding the constitutionality of death,
penalty examined whether total discretion can be conferred on the judges in awarding,
"death sentence, when the statute does not provide any guidelines on how to exercise",
"the same. The decision in Jagmohan Singh (supra) was rendered when Cr PC, 1973",
"was not in existence. However, the aforesaid position substantially changed with the",
"introduction of a changed sentencing structure under Cr PC, 1973. In Rajendra Prasad v",
"State of UP,201. it was held that the special reasons necessary for imposing a death",
penalty must relate not to the crime but to the criminal. It could be awarded only if the,
"security of the state and society, public order in the interest of the general public",
compelled that course.,
Proposition laid down by the Constitution Bench in Jagmohan Singh's Case,
"(i) The general legislative policy that underlines the structure of our criminal law,",
"principally contained in the IPC, 1860 and Cr PC, 1973, is to define an offence",
"with sufficient clarity and to prescribe only the maximum punishment therefore,",
and to allow a very wide discretion to the Judge in the matter of fixing the degree,
of punishment.,
"With the solitary exception of section 303, the same policy permeates section",
"302 and some other sections of IPC, 1860, where the maximum punishment is",
the death penalty.,
(ii) (a) No exhaustive enumeration of aggravating or mitigating circumstances which,
"should be considered when sentencing an offender, is possible. ""The infinite",
variety of cases and facets to each case would make general standards,
either meaningless 'boiler plate' or a statement of the obvious that no Jury,
"(Judge) would need."" (referred to McGoutha v California.202.",
(b) The impossibility of laying down standards is at the very core of the,
criminal law as administered in India which invests the Judges with a,
very wide discretion in the matter of fixing the degree of punishment.,
"(iii) The view taken by the plurality in Furman v Georgia,203. decided by the Supreme",
"Court of the United States, to the effect, that a law which gives uncontrolled and",
unguided discretion to the Jury (or the Judge) to choose arbitrarily between a,
"sentence of death and imprisonment for a capital offence, violates the Eighth",
"Amendment, is not applicable in India. We do not have in our Constitution any",
"provision like the Eighth Amendment, nor are we at liberty to apply the test of",
reasonableness with the freedom with which the Judges of the Supreme Court,
"of America are accustomed to apply ""the due process"" clause. There are grave",
doubts about the expediency of transplanting western experience in our,
country. Social conditions are different and so also the general intellectual level.,
Arguments which would be valid in respect of one area of the world may not,
hold good in respect of another area.,
(iv) (a) This discretion in the matter of sentence is to be exercised by the Judge,
"judicially, after balancing all the aggravating and mitigating circumstances of",
the crime.,
(b) The discretion is liable to be corrected by Superior Courts. The,
"exercise of judicial discretion on well-recognised principles is, in the",
"final analysis, the safest possible safeguard for the accused. In view",
"of the above, it will be impossible to say that there would be at all any",
"discrimination, since crime as crime may appear to be superficially",
"the same, but the facts and circumstances of a crime are widely",
"different. Thus considered, the provision in section 302, IPC, 1860 is",
not violative of Article 14 of the Constitution on the ground that it,
confers on the Judges an unguided and uncontrolled discretion in the,
matter of awarding capital punishment or imprisonment for life.,
(v) (a) Relevant facts and circumstances impinging on the nature and,
circumstances of the crime can be brought before the Court at the,
"preconviction stage, notwithstanding the fact that no formal procedure for",
producing evidence regarding such facts and circumstances had been,
specifically provided. Where counsel addresses the Court with regard to the,
"character and standing of the accused, they are duly considered by the Court",
unless there is something in the evidence itself which belies him or the Public,
Prosecutor challenges the facts.,
(b) It is to be emphasised that in exercising its discretion to choose either,
"of the two alternative sentences provided in section 302, IPC, 1860:",
the Court is principally concerned with the facts and circumstances,
"whether aggravating or mitigating, which are connected with the",
particular crime under inquiry. All such facts and circumstances are,
capable of being proved in accordance with the provisions of the,
Indian Evidence Act in a trial regulated by the CrPC. The trial does not,
come to an end until all the relevant facts are proved and the counsel,
on both sides have an opportunity to address the Court. The only thing,
that remains is for the Judge to decide on the guilt and punishment,
"and that is whats. 306(2) and s. 309(2), CrPC purport to provide for.",
These provisions are part of the procedure established by law and,
unless it is shown that they are invalid for any other reasons they must,
be regarded as valid. No reasons are offered to show that they are,
constitutionally invalid and hence the death sentence imposed after,
trial in accordance with the procedure established by law is not,
unconstitutional under Art. 21.,
[Jagmohan Singh v State of UP.]204.,
[s 302.3] Evolution of Sentencing Policy,
Capital punishment has been a subject matter of great social and judicial discussion,
"and catechism. From whatever point of view it is examined, one undisputable",
statement of law follows that it is neither possible nor prudent to state any universal,
formula which would be applicable to all the cases of criminology where capital,
punishment has been prescribed. It shall always depend upon the facts and,
circumstances of a given case.205.,
[s 302.4] Phase-I (Focus on Crime).—,
Jagmohan Singh's Case (supra) laid down that discretion in the matter of sentencing is,
to be exercised by the judge after balancing all the aggravating and mitigating,
"circumstances ""of the crime"". Jagmohan Singh also laid down in proposition that while",
"choosing between the two alternative sentences provided in section 302 of IPC, 1860",
"(sentence of death and sentence of life imprisonment), the Court is principally",
concerned with the aggravating or mitigating circumstances connected with the,
"""particular crime under inquiry"".",
[s 302.5] Legislative Change.—,
The 41st Law Commission Report proposed extensive changes in the 1898 Code. In,
"paragraph 23.2 of the said report, the Law Commission recommended a set of new",
"provisions for governing ""trials before a Court of sessions"". With regard tosection 309",
"of the 1898 Code, the Law Commission recommended that hearing of the accused was",
most desirable before passing any sentence against him. This recommendation was,
"accepted and incorporated while enacting section 235, Cr PC in 1973 Code within",
"Chapter XVIII of the same under the heading ""Trial before a Court of Sessions"". The",
most significant change brought about by the incorporation of the recommendation of,
"the Law Commission, is the giving of an opportunity of hearing to the accused on the",
question of sentence. This opportunity of hearing at the post-conviction stage gives the,
accused an opportunity to raise fundamental issues for adjudication and effective,
determination by Court of its sentencing discretion in a fair and reasonable manner. In,
"Santa Singh v State of Punjab,206. the Supreme Court held that this provision is in",
consonance with the modern trends in penology and sentencing procedures. It was,
further held that proper exercise of sentencing discretion calls for consideration of,
"various factors like the nature of offence, the circumstances—both extenuating or",
"aggravating, the prior criminal record, if any, of the offender, the age of the offender, his",
"background, his education, his personal life, his social adjustment, the emotional and",
"mental condition of the offender, the prospects for the rehabilitation of the offender, the",
"possibility of his rehabilitation in the life of community, the possibility of treatment or",
"training of the offender, the possibility that the sentence may serve as a deterrent to",
crime by the offender or by others.,
"[s 302.6] Phase-II Doctrine of ""Rarest of rare"" (Shifting the focus from crime to",
criminal).—,
"In Bachan Singh v State of Punjab,207. another Constitution Bench, while upholding the",
constitutional validity of death sentence observed that for persons convicted of,
"murder, life imprisonment is the rule and death sentence an exception. The principal",
questions considered in this case were:,
"(i) Whether death penalty provided for the offence of murder in Section 302, Penal Code is",
unconstitutional.,
"(ii) If the answer to the foregoing question be in the negative, whether the sentencing",
"procedure provided in Section 354(3) of the CrPC, 1973 (Act 2 of 1974) is unconstitutional",
on the ground that it invests the Court with unguided and untrammelled discretion and,
allows death sentence to be arbitrarily or freakishly imposed on a person found guilty of,
"murder or any other capital offence punishable under the Indian Penal Code with death or, in",
"the alternative, with imprisonment for life.",
The conclusion of the Constitution Bench was that the sentence of death ought to be,
given only in the 'rarest of rare cases' [See the Box with 'Supreme Court Guidelines in,
Bachan Singh'] and it should be given only when the option of awarding the sentence of,
"life imprisonment is ""unquestionably foreclosed"". It laid down the framework law on",
this point. Bachan Singh effectively opened up Phase II of a sentencing policy by,
shifting the focus from the crime to the crime and the criminal.,
Supreme Court Guidelines in Bachan Singh,
(i) The extreme penalty of death need not be inflicted except in gravest cases of,
extreme culpability;,
"(ii) Before opting for the death penalty, the circumstances of the 'offender' also",
require to be taken into consideration along with the circumstances of the,
'crime';,
(iii) Life imprisonment is the rule and death sentence is an exception. In other,
"words, death sentence must be imposed only when life imprisonment appears",
to be an altogether inadequate punishment having regard to the relevant,
"circumstances of the crime, and only provided, the option to impose sentence",
of imprisonment for life cannot be conscientiously exercised having regard to,
the nature and circumstances of the crime and all the relevant circumstances;,
(iv) A balance-sheet of aggravating and mitigating circumstances has to be drawn,
up and in doing so the mitigating circumstances have to be accorded full,
weightage and a just balance has to be struck between the aggravating and the,
mitigating circumstances before the option is exercised.,
[Bachan Singh v State of Punjab.208.],
"The judgment in Machhi Singh v State of Rajasthan,209. did not only state the above",
"guidelines in some elaboration, but also specified the mitigating circumstances which",
could be considered by the Court while determining such serious issues.210. Despite,
the legislative change and Bachan Singh discarding proposition (iv)(a) of Jagmohan,
"Singh, Supreme Court in Machhi Singh revived the ""balancing"" of aggravating and",
"mitigating circumstances through a balance sheet theory. In doing so, it sought to",
compare aggravating circumstances pertaining to a crime with the mitigating,
"circumstances pertaining to a criminal. It hardly need be stated, with respect, that",
these are completely distinct and different elements and cannot be compared with one,
another. A balance sheet cannot be drawn up of two distinct and different constituents,
"of an incident. Nevertheless, the balance sheet theory held the field post Machhi",
Singh.211.,
Supreme Court Guidelines in Machhi Singh,
"Factors to be considered while determining the ""rarest of rare"" case",
I. Manner of commission of murder,
"33. When the murder is committed in an extremely brutal, grotesque, diabolical,",
"revolting, or dastardly manner so as to arouse intense and extreme indignation of the",
community. For instance.,
(i) When the house of the victim is set aflame with the end in view to roast him alive,
"in the house,",
(ii) When the victim is subjected to inhuman acts of torture or cruelty in order to,
bring about his or her death.,
(iii) When the body of the victim is cut into pieces or his body is dismembered in a,
fiendish manner.,
II. Motive for commission of murder,
34. When the murder is committed for a motive which evinces total depravity and,
"meanness. For instance, when (a) a hired assassin commits murder for the sake of",
money or reward; (b) a cold-blooded murder is committed with a deliberate design in,
order to inherit property or to gain control over property of a ward or a person under the,
control of the murderer or vis-a-vis whom the murderer is in a dominating position or in,
a position of trust; (c) a murder is committed in the course for betrayal of the,
motherland.,
III. Anti-social or socially abhorrent nature of the crime,
"(a) When murder of a member of a Scheduled Caste or minority community etc., is",
committed not for personal reasons but in circumstances which arouse social wrath.,
"For instance, when such a crime is committed in order to terrorise such persons and",
"frighten them into fleeing from a place or in order to deprive them of, or make them",
"surrender, lands or benefits conferred on them with a view to reverse past injustices",
and in order to restore the social balance.,
(b) In cases of 'bride burning' and what are known as 'dowry-deaths' or when murder is,
committed in order to remarry for the sake of extracting dowry once again or to marry,
another woman on account of infatuation.,
IV. Magnitude of crime,
"35. When the crime is enormous in proportion. For instance, when multiple murders say",
of all or almost all the members of a family or a large number of persons of a particular,
"caste, community, or locality, are committed.",
V. Personality of victim of murder,
36. When the victim of murder is (a) an innocent child who could not have or has not,
"provided even an excuse, much less a provocation, for murder, (b) a helpless woman or",
"a person rendered helpless by old age or infirmity, (c) when the victim is a person vis-a-",
"vis whom the murderer is in a position of domination or trust, (d) when the victim is a",
public figure generally loved and respected by the community for the services rendered,
by him and the murder is committed for political or similar reasons other than personal,
reasons.,
[Machhi Singh v State of Punjab.212.],
It is always preferred not to fetter the judicial discretion by attempting to make,
"excessive enumeration, in one way or another; and that both aspects namely",
aggravating and mitigating circumstances have to be given their respective weightage,
and that the Court has to strike the balance between the two and see towards which,
side the scale/balance of justice tilts.213.,
The aggravating and mitigating circumstances required to be taken into consideration,
"while applying the doctrine of ""rarest of rare"" crime",
39. Aggravating circumstances:,
"1. The offences relating to the commission of heinous crimes like murder, rape,",
"armed dacoity, etc. by the accused with a prior record of conviction for capital",
felony.,
2. The offence was committed while the offender was committing another serious,
offence.,
3. The offence was committed with the intention to create a fear psychosis in the,
public at large and was committed in a public place by a weapon or device which,
clearly could be hazardous to the life of more than one person.,
4. The offence of murder was committed for ransom or like offences to receive,
money or monetary benefits.,
5. Hired killings.,
6. The offence was committed outrageously for want only while involving inhumane,
treatment and torture to the victim.,
7. The offence was committed by a person while in lawful custody.,
8. The offence was committed to prevent a person lawfully carrying out his duty like,
arrest or custody in a place of lawful confinement of himself or another. For,
"instance, murder is of a person who had acted in lawful discharge of his duty",
"under section 43, Cr PC, 1973.",
9. When the crime is enormous in proportion like making an attempt of murder of,
the entire family or members of a particular community.,
"10. When the victim is innocent, helpless or a person relies upon the trust of",
"relationship and social norms, like a child, helpless woman, a daughter or a",
niece staying with a father/uncle and is inflicted with the crime by such a,
trusted person.,
11. When murder is committed for a motive which evidences total depravity and,
meanness.,
12. When there is a cold-blooded murder without provocation.,
13. The crime is committed so brutally that it pricks or shocks not only the judicial,
conscience but even the conscience of the society.,
Mitigating circumstances:,
"1. The manner and circumstances in and under which the offence was committed,",
"for example, extreme mental or emotional disturbance or extreme provocation in",
contradistinction to all these situations in normal course.,
2. The age of the accused is a relevant consideration but not a determinative factor,
by itself.,
3. The chances of the accused of not indulging in commission of the crime again,
and the probability of the accused being reformed and rehabilitated.,
4. The condition of the accused shows that he was mentally defective and the,
defect impaired his capacity to appreciate the circumstances of his criminal,
conduct.,
"5. The circumstances which, in normal course of life, would render such a",
behaviour possible and could have the effect of giving rise to mental imbalance,
"in that given situation like persistent harassment or, in fact, leading to such a",
"peak of human behaviour that, in the facts and circumstances of the case, the",
accused believed that he was morally justified in committing the offence.,
6. Where the Court upon proper appreciation of evidence is of the view that the,
crime was not committed in a pre-ordained manner and that the death resulted in,
the course of commission of another crime and that there was a possibility of it,
being construed as consequences to the commission of the primary crime.,
7. Where it is absolutely unsafe to rely upon the testimony of a sole eye-witness,
though prosecution has brought home the guilt of the accused.,
"40. While determining the questions relatable to sentencing policy, the Court has to",
follow certain principles and those principles are the loadstar besides the above,
considerations in imposition or otherwise of the death sentence.,
Principles:,
"(1) The Court has to apply the test to determine, if it was the 'rarest of rare' case for",
imposition of a death sentence.,
"(2) In the opinion of the Court, imposition of any other punishment, i.e., life",
imprisonment would be completely inadequate and would not meet the ends of justice.,
(3) Life imprisonment is the rule and death sentence is an exception.,
(4) The option to impose sentence of imprisonment for life cannot be cautiously,
exercised having regard to the nature and circumstances of the crime and all relevant,
considerations.,
(5) The method (planned or otherwise) and the manner (extent of brutality and,
"inhumanity, etc.) in which the crime was committed and the circumstances leading to",
commission of such heinous crime.,
Ramnaresh v State of Chhattisgarh;214. Brajendra Singh v State of MP.215.,
[s 302.7] Considerations for or against death sentence.—Balance sheet of,
aggravating and mitigating factors.—,
"Both in Bachan Singh and Machhi Singh's cases, guidelines have been indicated by the",
Supreme Court as to when this extreme sentence should be awarded and when not. In,
"fine, a balance-sheet of aggravating and mitigating circumstances has to be drawn up",
and in doing so the mitigating circumstances have to be accorded full weightage and a,
just balance has to be struck between the aggravating and mitigating circumstances,
before the option is exercised to award one sentence or the other.,
The cardinal questions to be asked and answered are:—,
(a) Is there something uncommon about the crime which renders sentence of,
imprisonment for life inadequate and calls for a death sentence?,
(b) Are the circumstances of the crime such that there is no alternative but to,
impose death sentence even after according maximum weightage to the,
mitigating circumstances which speak in favour of the offender?,
"If after taking into consideration all these circumstances, it is felt that death sentence",
"is warranted, the Court would proceed to do so.216. Thus, where murder is",
"premeditated217. or is committed in an organised manner,218. or by a hired",
assassin219. or by a lawyer220. or where it is gruesome221. or is committed with utmost,
"depravity,222. death sentence seems to be the proper sentence in all such cases.",
[s 302.8] Need for flexibility.—,
The Supreme Court has re-examined the categories after a gap of 25 years in Swami,
Shraddananda v State of Karnataka.223. The circumstances and conditions of life have,
"very seriously changed since then and, therefore, even if those categories are to be",
"observed, some scope for flexibility should always be maintained. Giving a brief view of",
"the changed scenario, the Supreme Court noted that a careful reading of the Machhi",
Singh categories makes it clear that the classification was made looking at murder,
"mainly as an act of maladjusted individual criminal(s). In 1983, the country was",
relatively free from organised and professional crime. Abduction for ransom and gang,
rape and murders committed in course of those offences were yet to become a,
menace for the society compelling the legislature to create special slots for those,
"offences in IPC, 1860. At the time of Machhi Singh, Delhi had not witnessed the",
infamous Sikh carnage. There had been no attack on the country's Parliament. There,
"were no bombs planted by terrorists killing completely innocent people, men, women",
"and children in dozens with sickening frequency. There were no private armies, no",
"mafia cornering huge Government contracts purely by muscle power, no reports of",
"killings of social activists and ""whistle-blowers"", no reports of custodial deaths and",
rape and fake encounters by police or even by armed forces. These developments,
would unquestionably find a more pronounced reflection in any classification if one,
"were to be made today. Relying upon the observations in Bachan Singh, therefore, even",
"though the categories framed in Machhi Singh provide very useful guidelines,",
"nonetheless those cannot be taken as inflexible, absolute or immutable. Further, even",
"in those categories, there would be scope for flexibility as observed in Bachan Singh",
itself.,
[s 302.9] Santosh Bariyar—A landmark.—,
"In Santosh Kumar Satishbhushan Bariyar v State of Maharashtra,224. while sharing",
"Supreme Court's ""unease and sense of disquiet"" it was observed that:",
the balance sheet of aggravating and mitigating circumstances approach invoked on a case,
by case basis has not worked sufficiently well so as to remove the vice of arbitrariness from,
"our capital sentencing system. It can be safely said that the Bachan Singh threshold of ""the",
"rarest of rare cases"" has been most variedly and inconsistently applied by the various High",
Courts as also this Court.,
The Judgments which are held to be per incurium in Santhosh Bariyar:,
"(1) Shivaji @ Dadya Shankar Alhat v State of Maharashtra,225.",
"(2) Mohan Anna Chavan v State of Maharashtra,226.",
"(3) Bantu v State of UP,227.",
"(4) Surja Ram v State of Rajasthan,228.",
"(5) Dayanidhi Bisoi v State of Orissa,229. and",
(6) State of UP v Sattan @ Satyendra.230.,
"In Sangeet v State of Haryana,231. in an unprecedented Judgment, a two-judge bench of",
the Supreme Court held that the Court has not endorsed the approach of aggravating,
and mitigating circumstances in the Constitution Bench Judgment in Bachan Singh and,
observed that it needs a fresh look. [See the Box with 'Principles summarised in,
Sangeet's Case by Supreme Court'.] The bench observed that even though Bachan Singh,
"intended ""principled sentencing"", sentencing has now really become judge-centric as",
highlighted in Swamy Shraddananda and Bariyar. This aspect of the sentencing policy in,
Phase II as introduced by the Constitution Bench in Bachan Singh seems to have been,
lost in transition.,
Principles summarised in Sangeet's Case by Supreme Court,
80. 1. This Court has not endorsed the approach of aggravating and mitigating,
"circumstances in Bachan Singh. However, this approach has been adopted in several",
"decisions. This needs a fresh look. In any event, there is little or no uniformity in the",
application of this approach.,
2. Aggravating circumstances relate to the crime while mitigating circumstances relate to,
the criminal. A balance sheet cannot be drawn up for comparing the two. The,
considerations for both are distinct and unrelated. The use of the mantra of aggravating and,
mitigating circumstances needs a review.,
"3. In the sentencing process, both the crime and the criminal are equally important. We",
"have, unfortunately, not taken the sentencing process as seriously as it should be with the",
"result that in capital offences, it has become judge-centric sentencing rather than principled",
sentencing.,
4. The Constitution Bench of this Court has not encouraged standardization and,
categorization of crimes and even otherwise it is not possible to standardize and categorize,
all crimes.,
"5. The grant of remissions is statutory. However, to prevent its arbitrary exercise, the",
legislature has built in some procedural and substantive checks in the statute. These need,
to be faithfully enforced.,
6. Remission can be granted under Section 432 of the CrPC in the case of a definite term of,
"sentence. The power under this Section is available only for granting ""additional"" remission,",
"that is, for a period over and above the remission granted or awarded to a convict under the",
Jail Manual or other statutory rules. If the term of sentence is indefinite (as in life,
"imprisonment), the power under Section 432 of the CrPC can certainly be exercised but not",
on the basis that life imprisonment is an arbitrary or notional figure of twenty years of,
imprisonment.,
7. Before actually exercising the power of remission under Section 432 of the CrPC the,
appropriate Government must obtain the opinion (with reasons) of the presiding judge of,
"the convicting or confirming Court. Remissions can, therefore, be given only on a case-by-",
case basis and not in a wholesale manner.,
[Sangeet v State of Haryana.]232.,
"In Mohinder Singh v State of Punjab,233. another two-Judge Bench analysed the various",
principles laid down in decisions reported in Swamy Shraddananda @ Murali Manohar,
"Mishra v State of Karnataka,234. Santosh Kumar Satishbhushan Bariyar v State of",
"Maharashtra,235. Mohd Farooq Abdul Gafur v State of Maharashtra,236. Haresh",
"Mohandas Rajput v State of Maharashtra,237. State of Maharashtra v Goraksha Ambaji",
"Adsul,238. and the Supreme Court's decision reported in Mohammed Ajmal",
"Mohammadamir Kasab @ Abu Mujahid v State of Maharashtra,239. and held that a",
conclusion as to the 'rarest of rare' aspect with respect to a matter shall entail,
identification of aggravating and mitigating circumstances relating both to the crime,
and the criminal and the expression 'special reasons' obviously means ('exceptional,
reasons') founded on the exceptionally grave circumstances of the particular case,
relating to the crime as well as the criminal.240.,
Principles summarised in Mohinder Singh's Case by Supreme Court,
(i) A conclusion as to the 'rarest of rare' aspect with respect to a matter shall entail,
identification of aggravating and mitigating circumstances relating both to the crime,
and the criminal.,
(ii) The expression 'special reasons' obviously means ('exceptional reasons') founded,
on the exceptionally grave circumstances of the particular case relating to the crime as,
well as the criminal.,
"(iii) The decision in Ravji @ Ram Chandra v State of Rajasthan,241. which was",
"subsequently followed in six other cases, namely, Shivaji @ Dadya Shankar Alhat v State",
"of Maharashtra,242. Mohan Anna Chavan v State of Maharashtra,243. Bantu v State of",
"UP,244. Surja Ram v State of Rajasthan,245. Dayanidhi Bisoi v State of Orissa,246. and",
"State of UP v Sattan @ Satyendra and Others,247. wherein it was held that it is only",
"characteristics relating to crime, to the exclusion of the ones relating to criminal, which",
"are relevant to sentencing in criminal trial, was rendered per incuriam qua Bachan Singh",
(supra) in the decision reported in Santosh Kumar Satishbhushan Bariyar (supra) at 529.,
(iv) Public opinion is difficult to fit in the 'rarest of rare' matrix. People's perception of,
crime is neither an objective circumstance relating to crime nor to the criminal.,
"Perception of public is extraneous to conviction as also sentencing, at least in capital",
sentencing according to the mandate of Bachan Singh (supra). [2009 (6) SCC 498,
[LNIND 2009 SC 1278] at p 535.],
(v) Capital sentencing is one such field where the safeguards continuously take,
strength from the Constitution. [(2009) 6 SCC 498 [LNIND 2009 SC 1278] at 539.],
(vi) The Apex Court as the final reviewing authority has a far more serious and intensive,
duty to discharge and the Court not only has to ensure that award of death penalty,
does not become a perfunctory exercise of discretion under section 302 after an,
"ostensible consideration of 'rarest of rare' doctrine, but also that the decision-making",
process survives the special rigours of procedural justice applicable in this regard.248.,
(vii) The 'rarest of rare' case comes when a convict would be a menace and threat to,
the harmonious and peaceful coexistence of the society. The crime may be heinous or,
"brutal but may not be in the category of ""the rarest of the rare case"". There must be no",
reason to believe that the accused cannot be reformed or rehabilitated and that he is,
likely to continue criminal acts of violence as would constitute a continuing threat to,
the society.249.,
(viii) Life sentence is the rule and the death penalty is the exception. The condition of,
providing special reasons for awarding death penalty is not to be construed,
linguistically but it is to satisfy the basic features of a reasoning supporting and,
making award of death penalty unquestionable.,
(ix) The circumstances and the manner of committing the crime should be such that it,
pricks the judicial conscience of the Court to the extent that the only and inevitable,
conclusion should be awarding of death penalty.,
State of Maharashtra v Goraksha Ambaji Adsul250. and Mohinder Singh v State of,
Punjab.251.,
"[s 302.10] Crime Test, Criminal Test and RR Test.—",
"The tests that we have to apply, while awarding death sentence, are ""crime test"",",
"""criminal test"" and the RR Test and not ""balancing test"". To award death sentence, the",
"""crime test"" has to be fully satisfied, that is 100% and ""criminal test"" 0%, that is no",
Mitigating Circumstance favouring the accused. If there is any circumstance favouring,
"the accused, like lack of intention to commit the crime, possibility of reformation,",
"young age of the accused, not a menace to the society, no previous track record, etc.,",
"the ""criminal test"" may favour the accused to avoid the capital punishment. Even if both",
"the tests are satisfied, that is the aggravating circumstances to the fullest extent and",
"no mitigating circumstances favouring the accused, still we have to apply finally the",
Rarest of Rare Case test (RR Test). RR Test depends upon the perception of the society,
"that is ""society centric"" and not ""Judge centric"", that is, whether the society will approve",
the awarding of death sentence to certainty types of crimes or not. While applying that,
"test, the Court has to look into variety of factors like society's abhorrence, extreme",
indignation and antipathy to certain types of crimes like sexual assault and murder of,
"minor girls intellectually challenged, suffering from physical disability, old and infirm",
"women with those disabilities, etc. Examples are only illustrative and not exhaustive.",
"Courts award death sentence since situation demands so, due to constitutional",
"compulsion, reflected by the will of the people and not the will of the judges.252.",
Some Cases where the Court applied the Criminal test to avoid Death Penalty:,
"(1) Kumudi Lal v State of UP,253.",
"(2) Raju v State of Haryana,254.",
"(3) Bantu @ Naresh Giri v State of MP,255.",
"(4) State of Maharashtra v Suresh,256.",
"(5) Amrit Singh v State of Punjab,257.",
"(6) Rameshbhai Chandubhai Rathod v State of Gujarat,258.",
"(7) Surendra Pal Shivbalak v State of Gujarat,259.",
(8) Amit v State of Maharashtra.260.,
[s 302.11] Via media between Death Sentence and Life Imprisonment.—,
"It was in Swamy Shraddananda (2) v State of Karnataka,261. that a three-Judge Bench of",
the Supreme Court concluded that there is a good and strong basis for the Court to,
substitute a death sentence by life imprisonment or by a term in excess of 14 years and,
further to direct that the convict must not be released from the prison for the rest of his,
"life or for the actual term as specified in the order, as the case may be. But a two-Judge",
"Bench in Sangeet v State of Haryana,262. in which it was held that:",
a reading of some recent decisions delivered by this Court seems to suggest that the,
remission power of the appropriate Government has effectively been nullified by awarding,
"sentences of 20 years, 25 years and in some cases without any remission. Is this",
permissible? Can this Court (or any Court for that matter) restrain the appropriate,
Government from granting remission of a sentence to a convict? What this Court has done,
"in Swamy Shraddananda and several other cases, by giving a sentence in a capital offence",
"of 20 years or 30 years imprisonment without remission, is to effectively injunct the",
appropriate Government from exercising its power of remission for the specified period. In,
"our opinion, this issue needs further and greater discussion, but as at present advised, we",
are of the opinion that this is not permissible. The appropriate Government cannot be told,
"that it is prohibited from granting remission of a sentence. Similarly, a convict cannot be",
"told that he cannot apply for a remission in his sentence, whatever the reason. In this case,",
though the Division Bench raised a doubt about the decision of a three-Judge Bench in,
"Swamy Shraddananda (supra), yet the same has not been referred to a larger Bench.",
"In Sahib Hussain @ Sahib Jan v State of Rajasthan,263. another two-Judge Bench",
reiterated the position held in Swamy Shraddananda (supra) by holding that the,
observations in Sangeet (supra) are not warranted. In Gurvail Singh @ Gala v State of,
"Punjab,264. other two-Judge bench also termed the remarks in Sangeet (supra) as",
'unwarranted' and opined that if the two-judge bench was of the opinion that earlier,
"judgments, even of a larger Bench were not justified, the Bench ought to have referred",
"the matter to the larger Bench. However, in some cases, the Court had also been",
"voicing concern about the statutory basis of such orders.265. In a judgment,266.",
Supreme Court opined that:,
"We are of the view that it will do well in case a proper amendment u/s. 53 of IPC is provided,",
introducing one more category of punishment—life imprisonment without commutation or,
"remission. Dr. Justice V. S. Malimath in the Report on ""Committee of Reforms of Criminal",
"Justice System"", submitted in 2003, had made such a suggestion but so far no serious",
steps have been taken in that regard. There could be a provision for imprisonment till death,
without remission or commutation.,
[s 302.12] Sessions' Court's power.—,
The Session Judges do not have the power to impose the harsher variety of life,
sentence which is recognised by Swamy Shraddananda (2) v State of Karnataka267. as,
"an option available in law for the Courts to avoid the harshest, irreversible and",
incorrectable sentence of death. That sentencing option is available only to,
Constitutional Courts —the High Courts and the Supreme Court.268.,
[s 302.13] Delay in execution of death sentence.—,
It is well-established that exercising of power under Article 72/161 by the President or,
the Governor is a Constitutional obligation and not a mere prerogative.269. Time taken,
in Court proceedings cannot be taken into account to say that there is a delay which,
"would convert a death sentence into one for life.270. In TV Vatheeswaran,271. overruled",
"in Triveni Ben v State of Gujarat,272. a two-Judge Bench of Supreme Court considered",
"whether the accused, who was convicted for an offence of murder and sentenced to",
"death, kept in solitary confinement for about eight years was entitled to commutation",
of death sentence. It was held that delay exceeding two years in the execution of a,
sentence of death should be considered sufficient to entitle the person under sentence,
of death to invoke Article 21 and demand the quashing of the sentence of death.273.,
"But a three-Judge bench in Sher Singh v State of Punjab,274. held that though prolonged",
delay in the execution of a death sentence is unquestionably an important,
"consideration for determining whether the sentence should be allowed to be executed,",
"no hard and fast rule that ""delay exceeding two years in the execution of a sentence of",
death should be considered sufficient to entitle the person under sentence of death to,
"invoke Art. 21 and demand the quashing of the sentence of death"" can be laid down as",
"has been done in Vatheeswaran (supra). Javed Ahmed v State of Maharashtra,275. re-",
iterated the proposition laid down in Vatheeswaran (supra) case and doubted the,
competence of the three-judge bench to overrule the Vatheeswaran case. The,
conflicting views are finally settled by the Constitution Bench in Triveni Ben v State of,
Gujarat.276. It overruled Vatheeswaran (supra) holding that undue long delay in,
execution of the sentence of death will entitle the condemned person to approach the,
Supreme Court under Article 32 but the Court will only examine the nature of delay,
caused and circumstances that ensued after sentence will finally be confirmed by the,
judicial process and will have no jurisdiction to reopen the conclusions reached by the,
"Court while finally maintaining the sentence of death. Court, however, may consider the",
question of inordinate delay in the light of all circumstances of the case to decide,
whether the execution of sentence should be carried out or should be altered into,
imprisonment for life. No fixed period of delay could be held to make the sentence of,
death inexecutable and to this extent the decision in Vatheeswaran's case cannot be,
"said to lay down the correct law. In Madhu Mehta v UOI,277. Supreme Court commuted",
the death sentence on the ground that the mercy petition was pending for eight years,
after disposal of the criminal appeal by Supreme Court.,
It is well established that exercising of power under Article 72/161 by the President or,
the Governor is a constitutional obligation and not a mere prerogative. Considering the,
"high status of office, the Constitutional framers did not stipulate any outer time limit for",
"disposing the mercy petitions under the said Articles, which means it should be",
"decided within reasonable time. However, when the delay caused in disposing the",
"mercy petitions is seen to be unreasonable, unexplained and exorbitant, it is the duty of",
the Supreme Court to step in and consider this aspect.278.,
[s 302.13.1] Nirbhaya Case279..—,
"In this case, the Supreme Court analysed all the decisions, where the question of",
imposing the death penalty was discussed and examined the aggravating and,
"mitigating circumstances and opined that the appetite for sex, the hunger for violence,",
"the position of the empowered and the attitude of perversity of the accused, to say the",
"least, are bound to shock the collective conscience which knows not what to do.",
The Supreme Court observed that:,
the casual manner with which she was treated and devilish manner in which they played,
with her identity and dignity is humanly inconceivable. It sounds like a story from different,
world where humanity has been treated with irreverence. Aggravating circumstances,
outweigh mitigating circumstances.,
"The Supreme Court held the accused persons guilty of offences which are brutal,",
diabolic and barbaric in nature and fall within category of rarest of rare cases. The,
Supreme Court held that the sentence of death penalty was proper; there was no,
reason to differ with same.280.,
[s 302.14] Mitigating factors.,
"At the material time, the accused was under influence of alcohol and the fact that his",
"mental faculty was not in order, was considered as a relevant mitigating circumstance.",
It was accordingly held that it was not a fit case for extreme penalty. The sentence for,
life imprisonment was confirmed.281.,
There was a conspiracy in the wake of a property dispute in which contract killers were,
"hired and death was caused. Sethi, J, of the Supreme Court said that this was not the",
rarest of rare case. The accused was a misled youth. He was liable to be sentenced to,
life imprisonment for the major offence of murder.282. In a case arising out of partition,
"between two brothers, one of them (the accused) killed his brother, his wife and",
children. He was frustrated over his failure to resist partition of joint property. The,
"Court agreed that it was a heinous and brutal crime, but was not in the category of",
rarest of rare cases. The accused did not have any criminal tendency. He was a State,
Government employee and not a menace to the society. The Court directed his death,
sentence to be reduced to 20 years actual imprisonment including the period already,
undergone.283.,
"In a rape and murder case of an 11-year-old child, there was extra judicial confession",
made to a senior person to seek his help. He indicated the place where the body of the,
girl was lying. He struck her in the head twice over with a brick and then in the mouth,
only when she threatened to disclose. This showed that he had no intention to commit,
murder and injuries were inflicted only at the spur of the moment. He had no criminal,
record nor he was in any way a danger to the society. Death sentence was commuted,
to life imprisonment.284.,
The Court has to draw a balance between the aggravating and mitigating factors. The,
accused in this case was the member of a para-military force. He killed seven,
members of a family in a pre-planned manner. He was 23 at the time and had no,
criminal record. He and his family members were suffering agony at the hands of the,
victim family. He had a cause to feel aggrieved for the injustice meted out to his family,
members. The Court said that it was not the rarest of rare cases. His death sentence,
was reduced to life imprisonment.285.,
[s 302.14.1] Where attribution of exact role not possible.—,
One of the accused persons was the relative of the deceased family. They not only,
merely robbed the family of valuables but also killed three members of the family who,
were present at the time. They also raped the only female member in the house. The,
mitigating factors which the judge took into account in commuting death sentence into,
life imprisonment were that they were neither too old nor too young to be beyond,
reformation and rehabilitation. It was difficult also to judge as to what part was played,
"by one or the other and, therefore, who among them would come in the ""rarest""",
category.286.,
[s 302.14.2] Killing of wife and children in frustration.—,
"Though the accused had some suspicion about the character of his wife, the facts",
showed that he killed his wife and children because of unhappiness and frustration and,
not because of any criminal tendency. The penalty of death was set aside and he was,
sentenced to life imprisonment.287. The accused requested his wife to accompany him,
to his house. She turned it down. This created frustration and anger in his mind. He,
picked up a sharp-edged weapon and mercilessly struck her and also his mother-in-law,
repeatedly. Both of them fell dead. The Court said that the case was not of the rarest,
category. Death sentence was commuted to life imprisonment.288.,
[s 302.14.3] Death in custody.—,
The Supreme Court observed as follows:,
There is a rise in incidents of custodial deaths but accused cannot be convicted,
completely de hors the evidence and its admissibility according to law. Court cannot,
act on presumption merely on a strong suspicion or assumption and presumption. A,
presumption can only be drawn when it is permissible under the law. Rushing into,
conclusions without there being any proper link with commission of crime is improper.,
The view taken by the trial Court was just and proper in the given facts and,
circumstances of the case and it was not proper for the High Court to reverse the,
finding. Reasons given by the High Court in reversing the order of acquittal of accused,
persons were not cogent and did not appeal to reason so as to justify conviction of the,
"appellants. Hence, impugned judgment of the High Court was set aside.289.",
[s 302.14.4] Restoration of death penalty after acquittal.—,
The trial Court awarded death sentence. The High Court acquitted the accused in 1982.,
"The Supreme Court said that the accused having enjoyed acquittal, death sentence",
could not be restored even if the case merited the imposition of death penalty.290.,
[s 302.15] Delay.—,
No hard-and-fast rules can be laid down with respect to the delay which could result as,
"a mitigating circumstance, and each case must depend on its own facts. In the present",
"case, there was no delay whatsoever that the circumstances necessitated imposition",
of life sentence instead of death sentence.291.,
[s 302.16] Capital (Death) sentence.—,
The doctrine of rarest of rare case was enunciated by the Supreme Court in Bachan,
"Singh v State of Punjab.292. The trial Court, High Courts and even the Supreme Court",
are duty bound to follow it.293. The Court explained in this case some of the relevant,
factors as follows:,
Not only the doctrine of proportionality but also doctrine of rehabilitation should be,
"taken into consideration, particularly in view of section 354(3), Cr PC, 1973, which must",
be read with Article 21 of the Constitution. Where there was nothing to show that the,
"appellant-accused could not be reformed and rehabilitated, the mere manner of",
"disposal of the dead body, howsoever abhorrent, should not by itself be regarded",
"sufficient to bring the case in the rarest of rare category. In the present case, all the",
accused including the appellant were unemployed young men in search of job. They,
were not criminals. In exception of a plan proposed by the appellant and accepted by,
"them, they kidnapped a friend of theirs with the motive of procuring ransom from his",
"family but later murdered him, and after cutting his body into pieces, disposed of the",
same at different places. One of the accuseds turned approver and prosecution case,
was based exclusively on his evidence. Appellant-accused contradicted the approver's,
"version in respect of his role. In such a case, statement of approver regarding manner",
"of murder and role of accused and that of approver himself, should be tested on the",
"basis of prudence doctrine taking into consideration inter alia, evidence produced by",
"the accused for imposition of lesser punishment. Hence, death penalty awarded by the",
"Courts below, in the absence of any special reasons to support the same was",
substituted by penalty of rigorous imprisonment for life.,
Death punishment stands on a very different footing from other types of punishments.,
"It is unique in its total irrevocability. Incarceration, life or otherwise, potentially serves",
"more than one sentencing aims. Deterrence, incapacitation, rehabilitation and",
"retribution all ends are capable to be furthered in different degrees, by calibrating this",
punishment in light of the overarching penal policy. But the same does not hold true of,
death penalty.294.,
One has to observe the global move away from the death penalty. Latest statistics,
show that 138 nations have abolished death penalty in either law or practice (no,
executions for 10 years).,
"Further, on 18 December 2007, the UN General Assembly adopted Resolution 62/149",
calling upon countries that retain death penalty to establish a worldwide moratorium on,
"executions with a view to abolishing the death penalty. India is, however, one of the 59",
nations that retain the death penalty.295.,
"The Law Commission of India in its Report No. 262 titled ""The Death Penalty"" has",
recommended the abolition of death penalty for all the crimes other than terrorism,
related offences and waging war (offences affecting National Security).,
Where the question of whether death penalty could be imposed in a case which,
"depended upon circumstantial evidence, the Supreme Court said:",
If the circumstantial evidence is found to be of unimpeachable character in,
"establishing the guilt of the accused, that form the foundation for conviction and that",
has nothing to do with the question of sentence. Mitigating circumstances and the,
aggravating circumstances have to be balanced and in the balance sheet of such,
circumstances. The fact that the case rests on circumstantial evidence has no role to,
"play. In fact, in most of the cases where death sentences are awarded for rape and",
"murder and the like, there is practically no scope for getting an eyewitness. Such",
offences are not committed in public view. Only available evidence in such cases is,
"circumstantial. If such evidence is found to be credible, cogent and trustworthy for the",
"purpose of recording conviction, to treat such evidence as a mitigating circumstance,",
"would amount to consideration of an irrelevant aspect. Hence, such plea is",
unsustainable. Instant case fell in category of the rarest of rare cases. Circumstances,
"proved established the depraved acts of the accused, and they called for only one",
"sentence, that is, death sentence. Judgment of the High Court, confirming the",
"conviction and sentence imposed by the trial Court, does not warrant any",
interference.296.,
[s 302.16.1] Punishment of terrorists.—,
The prosecution case was that the accused persons came running to a police picket,
and hurled bombs at security personnel. There was good identification evidence.,
Injuries on the persons of the accused were scabbed burn injuries caused by handling,
of explosive substance. The medical evidence showed that abrasions on the body of,
the deceased could have been caused by splinters from bomb explosions. The case,
"being proved beyond any reasonable doubt, the conviction for murder was fully",
justified.297.,
[s 302.16.2] Hearing before awarding death sentence.—,
The matter was remitted where death sentence was awarded without hearing the,
accused.298. It is necessary to afford opportunity of hearing to the accused on the,
"question of sentence, where life imprisonment or death sentence is awarded.299.",
[s 302.17] Fine.—,
"It has been held that the words ""shall also be liable to fine"" are not to be understood as",
a legislative mandate that the Court must invariably impose fine also as a part of the,
punishment.300.,
[s 302.18] Appeal against acquittal.—,
Where the prosecution case of homicide and the defence version of suicide were both,
"found to be equally probable, the accused was held to be entitled to the benefit of",
doubt.301. Where there was a gross enmity between the parties and the medical,
"evidence did not support the ocular version, accused was given benefit of doubt.302.",
[s 302.19] Presumption of murder.—,
"Where the question was whether the death in question was homicidal or suicidal, and",
"the expert who examined the body was not sure either way, the presumption as to",
murder was held to be something doubtful.303. Where a person is not proved to be,
"guilty, the presumption of innocence prevails in reference to him.304.",
"[s 302.20] As to the application of section 106 of the Evidence Act, 1872.—",
"In cases where mere circumstantial evidence exists, the burden of proof as envisaged",
"under section 106 of the Evidence Act, 1872, i.e., the burden of proving the fact, which",
"is especially within the knowledge of a person, plays an important role in several cases.",
"Where the dead body of the deceased was found in the river, the knowledge about that",
incident was within the special knowledge of the accused. As the deceased was in the,
"custody of the accused and disappeared from their house, the accused did not reveal",
what happened to the deceased. The Supreme Court held that the accused failed to,
"discharge their duty under section 106 of the Evidence Act, 1872. The prosecution is",
not expected to give the exact manner in which the deceased was killed. Adverse,
"inference needs to be drawn against the accused, as they failed to explain how the",
deceased was found dead in the river in one-foot deep water.,
"Referring to section 106 of the Evidence Act, 1872, it was propounded that the said",
section was not intended to relieve the prosecution of its burden to prove the guilt of,
"the accused beyond reasonable doubt, but would apply to cases where prosecution",
had succeeded in proving facts from which a reasonable inference could be drawn,
"regarding the existence of certain other facts, unless the accused, by virtue of his",
"special knowledge regarding such facts, succeeds in offering any explanation, to drive",
the Court to draw a different inference.305.,
"In Gajanan Dashrath Kharate v State of Maharashtra,306. the deceased was found within",
the company of the accused and on the next day was found dead. Blood stained dress,
of the accused with the blood of the deceased was recovered. The Supreme Court held,
"that when an offence like murder is committed in secrecy inside a house, the initial",
burden to establish the case would undoubtedly be upon the prosecution. In view of,
"section 106 of the Evidence Act, 1872, there will be a corresponding burden on the",
inmates of the house to give cogent explanation as to how the crime was committed.,
"When the deceased is shown to be abducted, it is for the abductors to explain how they",
"dealt with the abducted victim. In the absence of an explanation, the Court is to draw",
inference that the abductors are the murderers.307.,
"In the examination under section 313, Cr PC, 1973, the accused denied any knowledge",
"of the crime and alleged false implication. Section 106 of the Evidence Act, 1872",
imposes an obligation on the accused to explain as to what happened after they were,
last seen together.308.,
The mere circumstance that the accused was last seen with the deceased is an unsafe,
hypothesis to find a conviction on a charge of murder. The lapse of time between the,
point when the accused was last seen with the deceased and the time of death has to,
be minimal.309. When the prosecution mainly relies on section 106 of the Evidence,
"Act,1872, the Supreme Court held, in a case where murder took place in a hotel room,",
"that to invoke that section, the main point to be established by the prosecution is that",
"the accused persons were present in the hotel room at the relevant time. In this case,",
the prosecution failed to produce the CCTV footages available at the hotel where the,
"murder took place, the Court further observed that the CCTV footage being a crucial",
"piece of evidence, it is for the prosecution to have produced the best evidence, which",
was missing.310.,
In the absence of any persuasive evidence to hold that at the relevant time the,
"appellant was present in the house, it would also be impermissible to cast any burden",
"on him as contemplated under section 106 of the Evidence Act, 1872.311.",
[s 302.21] Expert opinion.—,
Merely because no expert opinion was obtained to prove as to whether bones,
"recovered were human or animal bones, it would not weaken the case of prosecution in",
the light of the overwhelming evidence available on record to prove the complicity of,
the appellants.312.,
[s 302.22] Circumstantial evidence.—,
The circumstance (that the accused persons were seen in the vicinity of the,
"neighbourhood of the crime little before the same was committed), if coupled with the",
"recovery of the ornaments of the deceased from the possession of the accused, at",
"best, create a highly suspicious situation; but beyond a strong suspicion nothing else",
would follow in the absence of any other circumstance(s) which could suggest the,
involvement of the accused in the offence/offences alleged. Even with the aid of the,
"presumption under section 114 of the Evidence Act, 1872, the charge of murder cannot",
be brought home unless there is some evidence to show that the robbery and murder,
"occurred at the same time, i.e., in the course of the same transaction.313.",
[s 302.23] Section 302 and section 396.—,
The law clearly marks a distinction between culpable homicide amounting to murder,
and culpable homicide not amounting to murder. Another distinction between sections,
"302 and 396 is that under the latter, wide discretion is vested in the Courts in relation to",
"awarding of punishment. The Court, in exercise of its jurisdiction and judicial discretion",
in consonance with the established principles of law can award sentence of 10 years,
"with fine or even award sentence of life imprisonment or sentence of death, as the case",
"may be. While under section 302, the Court cannot, in its discretion, award sentence",
"lesser than life imprisonment. The ingredients of both these offences, to some extent,",
"are also different inasmuch as to complete an offence of 'dacoity'. Under section 396,",
"IPC, 1860, five or more persons must conjointly commit the robbery while under section",
"302 of the IPC, 1860 even one person by himself can commit the offence of murder.",
"But, as already noticed, to attract the provisions of section 396, the offence of 'dacoity'",
"must be coupled with murder. In other words, the ingredients of section 302 becomes",
"an integral part of the offences punishable under section 396 of the IPC, 1860.314.",
"[s 302.24] Additional/alternate charge under section 302, prejudice caused.—",
Charges were framed under sections 306 and 364. After examination of all the,
"witnesses (26) except the investigating officer, an alternate charge was framed under",
section 302 and the accused convicted thereunder. The witnesses were cross-,
examined as to the allegations related to the offences under sections 306 and 364.,
Conviction under section 302 set aside as prejudiced.315.,
"196. Subs. by Act 26 of 1955, section 117 and Sch, for ""transportation for life"" (w.e.f. 1-1-1956).",
"197. Ajitsingh Harnamsingh Gujral v State of Maharashtra, 2011 (10) Scale 394 [LNIND 2011 SC",
"902] : 2011 AIR (SCW) 5448 : AIR 2011 SC 3690 [LNIND 2011 SC 902] ; Rajesh Kumar v State,",
2011 (11) Scale 182 [LNIND 2011 SC 2734] : 2011 AIR (SCW) 5997 : (2011) 13 SCC 706 [LNIND,
2011 SC 2734] .,
"198. Nawab Singh v State of UP, AIR 1954 SC 278 .",
"199. Vadivelu Thevar v State of Madras, AIR 1957 SC 614 [LNIND 1957 SC 41] .",
"200. Jagmohan Singh v State of UP, (1973) 1 SCC 20 [LNIND 1972 SC 477] .",
"201. Rajendra Prasad v State of UP, (1979) 3 SCR 646 .",
"202. McGoutha v California, (1971) 402 US 183.",
203. Furman v Georgia (1972) 408 US 238.,
"204. Jagmohan Singh v State of UP, (1973) 1 SCC 20 [LNIND 1972 SC 477] .",
"205. Sunder v State, AIR 2013 SC 777 [LNIND 2013 SC 91] : 2013 (3) SCC 215 [LNIND 2013 SC",
91] .,
"206. Santa Singh v State of Punjab, (1976) 4 SCC 190 [LNIND 1976 SC 268] .",
"207. Bachan Singh v State of Punjab, AIR 1980 SC 898 [LNIND 1980 SC 260] : (1980) 2 SCC 684",
[LNIND 1980 SC 261] .,
"208. Bachan Singh v State of Punjab, (1980) 2 SCC 684 [LNIND 1980 SC 261] : AIR 1980 SC 898",
[LNIND 1980 SC 260] .,
"209. Machhi Singh v State of Rajasthan, 1983 (3) SCC 470 [LNIND 1983 SC 170] : AIR 1983 SC",
957 [LNIND 1983 SC 170] .,
210. See the Box with 'Supreme Court Guidelines in Machi Singh'.,
"211. Sangeet v State of Haryana, AIR 2013 SC 447 [LNIND 2012 SC 719] : (2013) 2 SCC 452",
[LNIND 2012 SC 719] .,
"212. Machhi Singh v State of Punjab, AIR 1983 SC 957 [LNIND 1983 SC 170] : 1983 (3) SCC 470",
[LNIND 1983 SC 170] .,
"213. Vasanta Sampat Dupare v State of Maharashtra, AIR 2017 SC 2530 [LNIND 2017 SC 248] .",
"214. Ramnaresh v State of Chhattisgarh, AIR 2012 SC 1357 [LNINDORD 2012 SC 404] .",
"215. Brajendra Singh v State of MP, AIR 2012 SC 1552 [LNIND 2012 SC 159] .",
"216. Machhi Singh v State of Punjab, (1983) 3 SCC 470 [LNIND 1983 SC 170] : AIR 1983 SC 957",
"[LNIND 1983 SC 170] : 1983 Cr LJ 1457 . See also State of Punjab v Garmej Shing, 2002 Cr LJ",
"3741 (SC), where also the court counted the factors and gave some illustrations. The accused",
killed his brother and two members of his family. The incident was the result of a mistrust,
created by a payment made by accused to his brother. The court was of the view that it was not,
a rarest case and death penalty was improper. The court also said that the likelihood of the,
accused being released prematurely was not a ground for imposing death penalty. The amount,
of compensation to the victim should not exceed the fine imposed. The only surviving member,
was the daughter of the deceased. The amount of fine was enhanced from Rs. 5000 to Rs.,
"20,000.",
"217. Jagmohan Singh, 1973 Cr LJ 370 : AIR 1973 SC 947 [LNIND 1972 SC 477] ; Mohinder Singh,",
"1973 Cr LJ 610 : AIR 1973 SC 697 ; Maghar Singh v State, 1975 Cr LJ 1102 : AIR 1975 SC 1320 .",
"218. Gopal Chand Srivastava v State of UP, 1994 Cr LJ 2863 (All), all the inmates were told to",
stay away and the victims were then hit by two assailants whom the court awarded death,
sentence but the confirming court reduced the sentence to life imprisonment in view of their,
young years.,
"219. Ramesh, 1979 Cr LJ 902 : AIR 1979 SC 871 .",
"220. State of UP v Paras Nath, 1973 Cr LJ 850 : AIR 1973 SC 1073 [LNIND 1973 SC 14] .",
"221. Munawar Harun Shah, 1983 Cr LJ 971 : AIR 1983 SC 585 [LNIND 1983 SC 113] : (1983) 3",
"SCC 254 . Followed in State v Ashok Kumar, (1995) 2 Cr LJ 1789 (Del), where the accused killed",
the husband of the woman with whom he was in love; the killing was done when he was taken,
"away with the help of his wife and was struck while asleep, both convicted and sentenced to",
death; fine of one lakh rupees imposed on the lady accused for expenses of prosecution she,
"had gained anything from the offence nor had any means. Suresh Kumar v State of Rajasthan,",
"1995 Cr LJ 1853 (Raj), a boy of 20 years old, caused death of his wife and daughter, faced",
"prosecution for seven years, life imprisonment not enhanced to death sentence. James v State",
"of Kerala, (1995) 1 Cr LJ 55 (Ker), money-lender entered the home of the borrower and killed",
"him, his wife and his mother, entry could have been for the lawful purpose of seeking repayment,",
"death sentence reduced to life imprisonment, not rarest of rare case.",
"222. Shankaria, 1978 Cr LJ 1251 : AIR 1978 SC 1248 [LNIND 1978 SC 138] . Raghunathan v State",
"of Kerala, (1995) 2 Cr LJ 1880 (Ker), death of old woman caused by strangulation and robbed of",
"ornaments, life imprisonment upheld. Sheikh Ayyub v State of Maharashtra, (1995) 1 Cr LJ 420 :",
"(1994) 2 Supp SCC 269 , accused killed two police officers while they were arresting him, he",
"snatched police pistol and handled it in confused manner, injuring his companion co-accused",
"also, death sentence reduced to life imprisonment. Deoraj Deju Suvarna v State of Maharashtra,",
"1994 Cr LJ 3602 (Bom), it would be most shocking for a judge to hear the accused on the",
quantum of sentence after awarding him death sentence.,
223. (2008) 13 SCC 767 [LNIND 2008 SC 1488] : AIR 2008 SC 3040 [LNIND 2008 SC 1488] :,
2008 Cr LJ 3911 . The Court also observed that decision would go by comparison of one case,
"with the other, comparison both quantitative and qualitative. The application of the sentencing",
policy through aggravating and mitigating circumstances came up for consideration in Swamy,
"Shraddananda (2) v State of Karnataka, 2008 (13) SCC 767 [LNIND 2008 SC 1488] : AIR 2008 SC",
"3040 [LNIND 2008 SC 1488] : 2008 Cr LJ 3911 . On a review, it was concluded in paragraph 48",
of the Report that there is a lack of evenness in the sentencing process. The rarest of rare,
principle has not been followed uniformly or consistently. Reference in this context was made,
"to Aloke Nath Dutta v State of WB, 2007 (12) SCC 230 [LNIND 2006 SC 1131] : 2007 (51) AIC 429",
"(SC) : 2008 (2) SCC (Cri) 264 [LNIND 2006 SC 1131] , which in turn referred to several earlier",
decisions to bring home the point.,
"224. Santosh Kumar Satishbhushan Bariyar v State of Maharashtra, 2009 (6) SCC 498 [LNIND",
2009 SC 1278] : 2009 (2) SCC (Cr) 1149 : 2009 (79) AIC 26 : 2009 (7) Scale 341 [LNIND 2009 SC,
1278] .,
"225. Shivaji @ Dadya Shankar Alhat v State of Maharashtra, 2008 (15) SCC 269 [LNIND 2008 SC",
1785] .,
"226. Mohan Anna Chavan v State of Maharashtra, 2008 (7) SCC 561 [LNIND 2008 SC 1265] .",
"227. Bantu v State of UP, 2008 (11) SCC 113 [LNIND 2008 SC 1496] .",
"228. Surja Ram v State of Rajasthan, 1996 (6) SCC 271 [LNIND 1996 SC 1548] .",
"229. Dayanidhi Bisoi v State of Orissa, 2003 (9) SCC 310 [LNIND 2003 SC 571] .",
"230. State of UP v Sattan @ Satyendra, 2009 (4) SCC 736 [LNIND 2009 SC 485] .",
"231. Sangeet v State of Haryana, AIR 2013 SC 447 [LNIND 2012 SC 719] : (2013) 2 SCC 452",
[LNIND 2012 SC 719] .,
"232. Sangeet v State of Haryana, AIR 2013 SC 447 [LNIND 2012 SC 719] : (2013) 2 SCC 452",
[LNIND 2012 SC 719] .,
"233. Mohinder Singh v State of Punjab, (2013) 3 SCC 294 [LNIND 2013 SC 71] : 2013 Cr LJ 1559",
(SC).,
"234. Swamy Shraddananda @ Murali Manohar Mishra v State of Karnataka, (2008) 13 SCC 767",
[LNIND 2008 SC 1488] : AIR 2008 SC 3040 [LNIND 2008 SC 1488] : 2008 Cr LJ 3911 .,
"235. Santosh Kumar Satishbhushan Bariyar v State of Maharashtra, 2009 (6) SCC 498 [LNIND",
2009 SC 1278] : 2009 (2) SCC (Cr) 1149 : 2009 (79) AIC 26 : 2009 (7) Scale 341 [LNIND 2009 SC,
1278] .,
"236. Mohd Farooq Abdul Gafur v State of Maharashtra, 2010 (14) SCC 641 [LNIND 2009 SC",
1641] .,
"237. Haresh Mohandas Rajput v State of Maharashtra, 2011 (12) SCC 56 [LNIND 2011 SC 928] .",
"238. State of Maharashtra v Goraksha Ambaji Adsul, AIR 2011 SC 2689 [LNIND 2011 SC 627] .",
"239. Mohammed Ajmal Mohammadamir Kasab @ Abu Mujahid v State of Maharashtra, JT 2012",
(8) SC 4 [LNIND 2012 SC 1215] .,
240. See the Box with 'Principles summarised in Mohinder Singh's Case by Supreme Court'.,
"241. Ravji @ Ram Chandra v State of Rajasthan, 1996 (2) SCC 175 [LNIND 1995 SC 1247] .",
"242. Shivaji @ Dadya Shankar Alhat v State of Maharashtra, 2008 (15) SCC 269 [LNIND 2008 SC",
1785] .,
"243. Mohan Anna Chavan v State of Maharashtra, 2008 (7) SCC 561 [LNIND 2008 SC 1265] .",
"244. Bantu v State of UP, 2008 (11) SCC 113 [LNIND 2008 SC 1496] .",
"245. Surja Ram v State of Rajasthan, 1996 (6) SCC 271 [LNIND 1996 SC 1548] .",
"246. Dayanidhi Bisoi v State of Orissa,246 2003 (9) SCC 310 [LNIND 2003 SC 571] .",
"247. State of UP v Sattan @ Satyendra and Others, 2009 (4) SCC 736 [LNIND 2009 SC 485] .",
"248. Mohd Farooq Abdul Gafur v State of Maharashtra, 2010 (14) SCC 641 [LNIND 2009 SC",
"1641] , 692.",
"249. Haresh Mohandas Rajput v State of Maharashtra, 2011 (12) SCC 56 [LNIND 2011 SC 928] at",
"p 63, para 20.",
"250. State of Maharashtra v Goraksha Ambaji Adsul, AIR 2011 SC 2689 [LNIND 2011 SC 627] .",
"251. Mohinder Singh v State of Punjab, (2013) 3 SCC 294 [LNIND 2013 SC 71] : 2013 Cr LJ 1559",
(SC).,
"252. Shankar Kisanrao Khade v State of Maharashtra, 2013 Cr LJ 2595 (SC) : (2013) 5 SCC 546",
"[LNIND 2013 SC 429] . Gurvail Singh @ Gala v State of Punjab, AIR 2013 SC 1177 [LNIND 2013 SC",
94] .,
"253. Kumudi Lal v State of UP, (1994) 4 SCC 108 .",
"254. Raju v State of Haryana, (2001) 9 SCC 50 [LNIND 2001 SC 1147] .",
"255. Bantu @ Naresh Giri v State of MP, (2001) 9 SCC 615 [LNIND 2001 SC 2372] .",
"256. State of Maharashtra v Suresh, (2000) 1 SCC 471 [LNIND 1999 SC 1126] .",
"257. Amrit Singh v State of Punjab, AIR 2007 SC 132 [LNIND 2006 SC 944] .",
"258. Rameshbhai Chandubhai Rathod v State of Gujarat, (2011) 2 SCC 764 [LNIND 2011 SC 96] .",
"259. Surendra Pal Shivbalak v State of Gujarat, (2005) 3 SCC 127 .",
"260. Amit v State of Maharashtra, (2003) 8 SCC 93 [LNIND 2003 SC 642] .",
"261. Swamy Shraddananda (2) v State of Karnataka, 2008 (13) SCC 767 [LNIND 2008 SC 1488] :",
AIR 2008 SC 3040 [LNIND 2008 SC 1488] : 2008 Cr LJ 3911 ; also see State of UP v Sanjay,
"Kumar, (2012) 8 SCC 537 [LNINDORD 2012 SC 416] .",
"262. Sangeet v State of Haryana, AIR 2013 SC 447 [LNIND 2012 SC 719] : (2013) 2 SCC 452",
[LNIND 2012 SC 719] : 2013 Cr LJ 425 .,
"263. Sahib Hussain @ Sahib Jan v State of Rajasthan, 2013 Cr LJ 2359 : 2013 (6) Scale 219",
[LNIND 2013 SC 474] .,
"264. Gurvail Singh @ Gala v State of Punjab, 2013 (10) Scale 671 [LNINDORD 2013 SC 1147] .",
"265. Sangeet v State of Haryana, AIR 2013 SC 447 [LNIND 2012 SC 719] : (2013) 2 SCC 452",
[LNIND 2012 SC 719] : 2013 Cr LJ 425 .,
"266. State of Rajasthan v Jamil Khan, 2013 (12) Scale 200 [LNIND 2013 SC 883] .",
"267. Swamy Shraddananda (2) v State of Karnataka, 2008 (13) SCC 767 [LNIND 2008 SC 1488] :",
AIR 2008 SC 3040 [LNIND 2008 SC 1488] : 2008 Cr LJ 3911 .,
"268. Unni v State of Kerala, 2013 Cr LJ 2819 (SC).",
"269. Shatrughan Chauhan v UOI, 2014 Cr LJ 1327 : [2014] 1 SCR 609 [LNIND 2014 SC 40] .",
"270. Mohd Arif v The Registrar, Supreme Court of India, 2014 Cr LJ 4598 : 2014 (87) All CC 939.",
"271. TV Vatheeswaran, AIR 1983 SC 361 [LNIND 1983 SC 43] , 1983 SCR (2) 348 .",
"272. Triveni Ben v State of Gujarat, AIR 1989 SC 1335 [LNIND 1989 SC 885] : (1989) 1 SCC 678",
[LNIND 1989 SC 885] .,
"273. In Ediga Annamma's case (1974 (3) SCR 329) [LNIND 1974 SC 34] , two years was",
considered sufficient to justify interference with the sentence of death. In Bhagwan Baux's case,
"(AI R 1978 SC 34 ), two and a half years and in Sadhu Singh's case ( AIR 1978 SC 1506 ), three",
and a half years were taken as sufficient to justify altering the sentence of death into one of,
"imprisonment for life; see also KP Mohammed v State of Kerala, (1985) 1 SCC (Cr) 142 : 1984",
Supp SCC 684.,
"274. Sher Singh v State of Punjab, AIR 1983 SC 465 [LNIND 1983 SC 89] : (1983) 2 SCC 344",
[LNIND 1983 SC 89] .,
"275. Javed Ahmed v State of Maharashtra, AIR 1985 SC 231 [LNIND 1984 SC 310] : (1985) 1 SCC",
275 [LNIND 1984 SC 310] .,
"276. Triveni Ben v State of Gujarat, AIR 1989 SC 1335 [LNIND 1989 SC 885] : (1989) 1 SCC 678",
[LNIND 1989 SC 885] .,
"277. Madhu Mehta v UOI, (1989) 3 SCR 775 [LNIND 1989 SC 390] .",
"278. Shatrughan Chauhan v UOI, 2014 Cr LJ 1327 : [2014] 1 SCR 609 [LNIND 2014 SC 40] .",
"279. Mukesh v State for NCT of Delhi, 2017 (5) Scale 506 .",
"280. Mukesh v State for NCT of Delhi, AIR 2017 SC 2161 [LNIND 2017 SC 252] .",
"281. Siraj Khan v State of Gujarat, 1994 Cr LJ 1502 (Guj). Kurale Pullaiah v State, 2003 Cr LJ 1060",
"(AP), the accused stabbed the victim with knife, snatching the knife from the victim himself,",
"inflicted only one stab injury, not a cold-blooded or heartless homicide, death sentence",
converted into life imprisonment.,
"282. State of Maharashtra v Bharat Chaganlal Raghani, AIR 2002 SC 409 [LNIND 2001 SC 1312]",
at 432.,
"283. Prakash Dhawal Khairnar v State of Maharashtra, AIR 2002 SC 340 [LNIND 2001 SC 2841] at",
"350, relying on Bhagwan v State of Rajasthan, 2001 AIR SCW 2189 : AIR 2001 SC 2342 [LNIND",
"2001 SC 1234] : (2001) Cr LJ 2925 : (2001) 6 SCC 2961 , wherein while reducing the death",
"sentence to imprisonment for life, the court considered section 57, IPC, 1860 and referred to the",
"following observation in Dalbir Singh v State of Punjab, (1979) 3 SCC 745 [LNIND 1979 SC 281] :",
AIR 1979 SC 1384 [LNIND 1979 SC 281] : 1979 Cr LJ 1058 .,
"""The sentences of death in the present appeal are liable to be reduced to life imprisonment. We",
"may add a footnote to the ruling in Rajendra Prasad v. State of U.P., (1979) 3 SCC 646 [LNIND",
"1979 SC 107] .Taking the clue from the English Legislation on abolition, we may suggest that life",
"imprisonment which strictly means imprisonment for the whole of the man's life, but in practice",
"amounts to incarceration for a period between 10 and 14 years may, at the option of the",
"convicting Court, be subject to the conditions that the sentence of imprisonment shall last as",
long as life lasts where there are exceptional indications of murderous recidivism and the,
community cannot run the risk of the convict being at large. This takes care of judicial,
apprehensions that unless physically liquidated the culprit may at some remote time repeat,
"murder."" This should be contrasted with Surja Ram v State of Rajasthan, AIR 1997 SC 18 [LNIND",
"1996 SC 1548] : 1997 Cr LJ 51 , the accused killed his real brother, his two minor sons, and aunt",
"while asleep, also attempted to murder the brother's wife and daughter, deaths caused in cool",
"and calculated manner, rarest, death sentence justified. Bantu v State of MP, AIR 2002 SC 70",
"[LNIND 2001 SC 2372] : 2002 Cr LJ 211 , the accused was sentenced to death for rape and",
murder of six-year-old child. He was of 22 years. There was no criminal record. He was not likely,
"to be a grave danger to the society. His act, though heinous and condemnable, did not come in",
the category of rarest of rare cases. Death sentence was commuted to imprisonment for life.,
"This should be contrasted with Jai Kumar v State of MP, AIR 1999 SC 1860 [LNIND 1999 SC 524]",
: 1999 Cr LJ 2569 . The accused committed a cold-blooded and gruesome and brutal murder of,
his sister-in-law and her eight-year-old daughter without any provocation. The Court did not,
regard his age of 22 years as any relevant factor. Death penalty was confirmed. Deepak Kumar v,
"Ravi Virmani, 2002 Cr LJ 1781 (SC) : AIR 2002 SC 1320 [LNIND 2002 SC 1] , death sentence",
reduced to life imprisonment in a case in which there was heinous killing of four family,
members. The accused spared a child which showed humane conduct.,
"284. Raju v State of Haryana, AIR 2001 SC 2043 [LNIND 2001 SC 1147] .",
"285. Om Prakash v State of Haryana, AIR 1999 SC 1332 [LNIND 1999 SC 1282] : 1999 Cr LJ",
"2044 . Another case stressing the need for balancing process is Anil v State of UP, 2002 Cr LJ",
"2694 (All), the accused had his shop opposite a house. The house owner had the shop closed",
because of customer nuisance. The accused in revenge got him killed. Taking all the factors,
"into account, the court said that he would not pose any danger to the society if his life was",
spared. The death sentence awarded to him was reduced to life imprisonment.,
"286. Ronny v State of Maharashtra, AIR 1998 SC 1251 [LNIND 1998 SC 302] : 1998 Cr LJ 1638 .",
"State of UP v Mutahir Mian, (2008) 10 SCC 223 [LNIND 2008 SC 1922] : AIR 2009 SC 839 [LNIND",
"2008 SC 1922] , acquittal because of irreconciliable facts. State of MP v Chamru, (2007) 12 SCC",
"423 [LNIND 2007 SC 802] : AIR 2007 SC 2400 [LNIND 2007 SC 802] : 2007 Cr LJ 3509 , four",
"murders, nobody could be punished because witnesses not natural. State of MP v Basodi, (2007)",
"14 SCC 548 [LNIND 2007 SC 919] , killing alleged by uncle by gunshot, extra-judicial confession",
"found to be myth, acquittal. Ramappa Halappa Pujar v State of Karnataka, (2007) 13 SCC 31",
"[LNIND 2007 SC 561] , High Court reversed acquittal, Supreme Court upheld conviction. State of",
"UP v Atar Singh, (2007) 14 SCC 193 [LNIND 2007 SC 1316] : AIR 2008 SC 411 [LNIND 2007 SC",
"1316] : (2008) 1 All LJ 227, acquittal justified because of weakness of circumstantial evidence.",
"Jagdish v State of MP, (2007) 13 SCC 12 [LNIND 2007 SC 1091] : 2008 Cr LJ 350 , acquittal",
"justified on appreciation of evidence. Bhagga v State of MP, (2007) 13 SCC 442 [LNIND 2007 SC",
"1208] : AIR 2008 SC 175 [LNIND 2007 SC 1208] , accused to whom no overt act could be",
"attributed, acquitted, no common object. Ajay Singh v State of Maharashtra, (2007) 12 SCC 341",
"[LNIND 2007 SC 438] : AIR 2007 SC 2188 [LNIND 2007 SC 438] , bride burning, prosecution",
failed to establish charge.,
"287. Shaikh Ayub v State of Maharashtra, AIR 1999 SC 1285 : 1998 Cr LJ 1656 ; Heera Lal (Dr) v",
"State of UP, 2001 Cr LJ 2849 (All), killed wife and three children because of debt burden and",
"attempted suicide. He was in great stress, frustration and mentally disturbed. Death sentence",
reduced to life imprisonment.,
"288. Mani Ram v State of Uttaranchal, 2001 Cr LJ 3403 (Uttaranchal).",
"289. Sadashio Mundaji Bhalerao v State of Maharashtra, (2007) 15 SCC 421 [LNIND 2006 SC",
1047] .,
"290. State of MP v Dhirendra Kumar, AIR 1997 SC 318 [LNIND 1996 SC 1830] : (1997) 1 SCC 93",
"[LNIND 1996 SC 1830] ; Subhash Chander v Krishanlal, 2001 Cr LJ 1825 (SC), refusal to interfere",
in the commutation of death sentence into life imprisonment by High Court.,
"291. Jagdish v State of MP, (2009) 9 SCC 495 [LNINDORD 2009 SC 210] : (2009) 4 AP LJ 1 .",
"292. Bachan Singh v State of Punjab, AIR 1980 SC 898 [LNIND 1980 SC 260] : (1980) 2 SCC 684",
[LNIND 1980 SC 261] .,
"293. Santosh Kumar SatishBhushan Bariyar v State of Maharashtra, (2009) 6 SCC 498 [LNIND",
2009 SC 1278] : (2009) 2 SCC (Cr) 1149.,
294. Ibid.,
295. Ibid.,
"296. Shivaji v State of Maharashtra, (2008) 15 SCC 269 [LNIND 2008 SC 1785] : AIR 2009 SC 56",
[LNIND 2008 SC 1785] .,
"297. Ayyub v State of UP, AIR 2002 SC 1192 [LNIND 2002 SC 156] ; MA Antony v State of Kerala,",
(2009) 6 SCC 220 [LNIND 2009 SC 961] : AIR 2009 SC 2549 [LNIND 2009 SC 961] : (2009) 2 SCC,
"(Cr) 959, murder of all the six members of a family at their residence at night, motive of money",
"was proved, accused present in the house during the night till next morning and his absence",
"from his home established, important recoveries, judicial and extra-judicial confession,",
"complete chain of circumstances, death sentence confirmed.",
"298. Sattan v State of UP, 2001 Cr LJ 676 (All).",
"299. Ram Deo Chauhan v Raj Nath Chauhan, 2001 Cr LJ 2902 (SC).",
"300. Bidhan Nagh v State of Assam, 2000 Cr LJ 1144 (Gau).",
"301. State of Maharashtra v Sanjay, 2003 SCC (Cr) 231. State of Punjab v Ajaib Singh, AIR 2004",
SC 2466 [LNIND 2004 SC 478] : 2004 Cr LJ 2547 .,
"302. State of UP v Garibuddi, 2012 AIR (SCW) 92 : 2012 Cr LJ 772 ; Kailash Gour v State of",
"Assam, (2012) 2 SCC 34 : AIR 2012 SC 786 : 2012 Cr LJ 1050 .",
"303. Dinesh Borthakar v State of Assam, (2008) 3 SCC 6967 : AIR 2008 SC 2205 [LNIND 2008 SC",
675] .,
"304. Ghurey Lal v State of UP, (2008) 10 SCC 450 [LNIND 2008 SC 1535] .",
"305. Chaman v State of Uttarakhand, AIR 2016 SC 1912 [LNIND 2016 SC 167] : 2016 Cr LJ 2330 .",
"306. Gajanan Dashrath Kharate v State of Maharashtra, 2016 Cr LJ 1900 : 2016 (3) SCJ 176 .",
"307. Paramsivam v State through Inspector of Police, 2014 Cr LJ 4085 : AIR 2014 SC 2936",
[LNIND 2014 SC 617] .,
"308. Dilip Mallick v State of WB, 2017 (1) Crimes 328 (SC) : 2017 (3) Scale 71 [LNINDU 2017 SC",
56] .,
"309. Ganpat Singh v State of MP, AIR 2017 SC 4839 [LNIND 2017 SC 2956] .",
"310. Tomaso Bruno v State of UP, (2015) 7 SCC 178 [LNIND 2015 SC 40] : 2015 Cr LJ 1690 .",
"311. Jose v The Sub-Inspector of Police, Koyilandy, (2016) 10 SCC 519 [LNIND 2016 SC 403] :",
AIR 2016 SC 4581 [LNIND 2016 SC 403] .,
"312. Ram Chander v State of Haryana, 2017 (1) Scale 73 [LNIND 2017 SC 7] : (2017) 2 SCC 321",
[LNIND 2017 SC 7] .,
"313. Raj Kumar v State (NCT of Delhi), AIR 2017 SC 614 [LNIND 2017 SC 30] : (2017) 237 DLT",
173 .,
"314. Rafiq Ahmed v State of UP, (2011) 8 SCC 300 [LNIND 2011 SC 726] : AIR 2011 SC 3114",
[LNIND 2011 SC 726] : 2011 Cr LJ 4399 .,
"315. R Rachaiah v Home Secretary, Bangalore, AIR 2016 SC 2447 [LNIND 2016 SC 203] : 2016 Cr",
LJ 2943 .,
THE INDIAN PENAL CODE,
CHAPTER XVI OF OFFENCES AFFECTING THE HUMAN BODY OF,
OFFENCES AFFECTING LIFE,
[s 303] Punishment for murder by life convict.,
"Whoever, being under sentence of 316.[imprisonment for life], commits murder, shall",
be punished with death.,
COMMENT.—,
This section has been struck down by the Supreme Court as void and unconstitutional,
being violative of both Articles 14 and 21 of the Constitution. It regards life convict to,
"be a dangerous class without any scientific basis and, thus, violates Article 14 and",
"similarly by completely cutting out judicial discretion it becomes a law which is not just,",
fair and reasonable within the meaning of Article 21.317. So all murders are punishable,
"under section 302, IPC, 1860. For the same reasons, Supreme Court declared section",
"27(3) of Arms Act 1959, ultra vires the Constitution. It was held that by imposing",
"mandatory death penalty, section 27(3) of the Arms Act, 1959 runs contrary to those",
statutory safeguards which give judiciary the discretion in the matter imposing death,
penalty. Section 27(3) of the Act is thus ultra vires the concept of judicial review which,
is one of the basic features of our Constitution.318.,
"316. Subs. by Act 26 of 1955, section 117 and Sch., for ""transportation for life"" (w.e.f. 1-1-1956).",
"317. Mithu, 1983 Cr LJ 811 (SC) : AIR 1983 SC 473 [LNIND 1983 SC 105] : 1983 Mad LJ (Cr) 485",
: (1983) 2 SCC 277 [LNIND 1983 SC 105] : 1983 SCC (Cr) 405 : (1983) 1 SCJ 327 [LNIND 1983,
"SC 105] . See Balkar Singh v State of Punjab, AIR 1991 SC 1225 : 1991 Cr LJ 1712 , sentence of",
participating co-accused found guilty by virtue of section 34 converted into life imprisonment. A,
prosecution under section 302 for causing death by a motor vehicle is not a bar to a civil claim,
arising out of the same accident. The civil proceeding is not likely to prejudice the position of,
"the accused in the criminal proceeding. Raja Ram Garg v Chhanga Singh, AIR 1992 All 28 [LNIND",
"1991 ALL 397] . See also Bhagwan Bax Singh, 1984 Cr LJ 928 (SC) : AIR 1984 SC 1120 : (1984) 1",
SCC 278 .,
"318. State of Punjab v Dalbir Singh, AIR 2012 SC 1040 [LNIND 2012 SC 93] : 2012 (3) SCC 346",
"[LNIND 2012 SC 93] . See also State of Rajasthan v Manoj Yadav, 2012 Cr LJ 456 (Raj).",
THE INDIAN PENAL CODE,
CHAPTER XVI OF OFFENCES AFFECTING THE HUMAN BODY OF,
OFFENCES AFFECTING LIFE,
[s 304] Punishment for culpable homicide not amounting to murder.,
Whoever commits culpable homicide not amounting to murder shall be punished with,
"319.[imprisonment for life], or imprisonment of either description for a term which",
"may extend to ten years, and shall also be liable to fine, if the act by which the death",
"is caused is done with the intention of causing death, or of causing such bodily injury",
"as is likely to cause death,",
"or with imprisonment of either description for a term which may extend to ten years,",
"or with fine, or with both, if the act is done with the knowledge that it is likely to cause",
"death, but without any intention to cause death, or to cause such bodily injury as is",
likely to cause death.,
COMMENT.—,
This section provides punishment for culpable homicide not amounting to murder.,
"Under it, there are two kinds of punishments applying to two different circumstances:",
(1) If the act by which death is caused is done with intention of causing death or such,
"bodily injury as is likely to cause death, the punishment is imprisonment for life, or",
imprisonment of either description for a term which may extend to 10 years and fine.,
(2) If the act is done with knowledge that it is likely to cause death but without any,
"intention to cause death or such bodily injury as is likely to cause death, the punishment",
"is imprisonment of either description for a term which may extend to 10 years, or with",
"fine, or with both.",
A conviction under Part II of this section read with section 34 is legal and valid. Part II,
"of this section can be read together with section 34, notwithstanding that Part II speaks",
only of knowledge while section 34 deals with intention.320.,
Commission of the offence of culpable homicide would require some positive act on,
"the part of the accused as distinguished from silence, inaction or a mere lapse.",
Allegations of not carrying out a prompt search of the missing children; of delay in the,
lodging of formal complaint with the police and failure to take adequate measures to,
"guard the access from the ashram to the river, which are the principal allegations made",
"in the FIR, cannot make out a case of culpable homicide not amounting to murder",
"punishable under section 304, IPC, 1860.321.",
"[s 304.1] Distinction between the provisions of section 304, Part I and Part II.—",
Linguistic distinction between the two Parts of section 304 is evident from the very,
"language of this section. There are two apparent distinctions, one in relation to the",
"punishment while other is founded on the intention of causing that act, without any",
intention but with the knowledge that the act is likely to cause death. It is neither,
advisable nor possible to state any straight-jacket formula that would be universally,
applicable to all cases for such determination. Every case essentially must be decided,
on its own merits. The Court has to perform the very delicate function of applying the,
provisions of the Code to the facts of the case with a clear demarcation as to under,
"what category of cases, the case at hand falls and accordingly punish the accused.322.",
"[s 304.2] Is section 304, Part II applicable only when exceptions to section 300",
cover a case?.—,
"The plea that section 304, Part II applies only when exceptions to section 300 cover a",
"case is misconceived. The decision in Harendra Mandal's case,323. was rendered in a",
different context and observations in the same case cannot be read out of context.,
"That was a case where death itself had not been caused and therefore, question of",
"applying section 304, IPC, 1860 did not arise.324. Section 304, Part II comes into play",
when the death is caused by doing an act with knowledge that it is likely to cause death,
but there is no intention on the part of the accused either to cause death or to cause,
such bodily injury as is likely to cause death.325.,
[s 304.3] Section 302 or section 304.—Judicial dilemma.—,
The Indian Penal Code was enacted in the year 1860 under which the offences within,
the territory of India have been tried ever since it was enacted dealing with countless,
"number of cases leading either to acquittal or conviction. Yet, the task of the decision-",
making authorities/Courts of whether an offence of culpable homicide is murder or,
culpable homicide does not amount to murder in the prevailing facts and,
circumstances of the case is a perennial question with which the Courts are often,
confronted. When the evidence discloses a clear case of murder or makes out a finding,
"of culpable homicide not amounting to murder, the task of the Courts to record",
conviction or acquittal is generally an easy one. But this task surely becomes an,
undaunted one when the accused commits culpable homicide/murder but the,
circumstances disclose many a times that it is done without premeditation or pre-,
"planning, may be to cause grievous hurt, yet it is so grave in nature that it results into",
death and the role of the factum causing death without premeditation becomes a,
secondary consideration due to which the decision of the Courts in such cases often,
"hinges on discretion while considering whether the case would fall under section 302,",
"IPC, 1860 or it would be under section 304, Part I or even Part II, IPC, 1860. On a plain",
"reading of section 299, section 300, section 302 and section 304 of IPC, 1860, it",
"appears that given cases can be conveniently classified into two categories, viz.,",
"culpable homicide amounting to murder which is section 302, IPC, 1860 or culpable",
"homicide not amounting to murder which is section 304 IPC, 1860. But when it comes",
"to the actual application of these two sections in a given case, the Courts are often",
"confronted with a dilemma as to whether a case would fall under section 302, IPC,",
"1860 or would fall under section 304, IPC, 1860. Many a time, this gives rise to",
conflicting decisions of one Court or the other giving rise to the popular perception,
among litigants and members of the Bar that a particular Court is an acquitting Court,
or is a convicting one. This confusion or dilemma often emerges in a case when the,
"question for consideration is whether a given case would fall under section 302, IPC,",
"1860 or section 304, IPC, 1860 when it is difficult to decipher from the evidence",
whether the intention was to cause merely bodily injury which would not make out an,
offence of murder or there was clear intention to kill the victim making out a clear case,
"of an offence of murder.326. Section 300 states both, what is murder and what is not.",
"First finds place in section 300 in its four stated categories, while the second finds",
detailed mention in the stated five exceptions to section 300. The legislature in its,
"wisdom, thus, covered the entire gamut of culpable homicide that 'amounting to",
murder' as well as that 'not amounting to murder' in a composite manner in section 300,
of the Code. It is neither advisable nor possible to state any straightjacket formula that,
would be universally applicable to all cases for such determination. Every case,
essentially must be decided on its own merits. The Court has to perform the very,
delicate function of applying the provisions of the Code to the facts of the case with a,
"clear demarcation as to under what category of cases, the case at hand falls and",
accordingly punish the accused.327. It has been held that unless the case falls under,
"one of the specified exception in section 300, it cannot be brought under Part I or Part II",
"of section 304 of IPC, 1860.328.",
[s 304.4] CASES.—,
"Where the accused husband suspecting the fidelity of his wife quarrelled with her,",
"poured kerosene on her body and set her on fire and subsequently, when she screamed",
"for help, tried to extinguish fire by pouring water, the Supreme Court held that he was",
having full knowledge that his act would cause her death and the attempt of,
"extinguishing the fire will not mitigate the offence, hence he was liable under section",
"302, IPC, 1860 and not under section 304, IPC, 1860.329. The accused followed his",
daughter into the women's public toilet of the village and assaulted her. The fatal,
"injuries resulted in her instant death. None of the exceptions in section 300 of IPC,",
1860 was attracted. It would necessarily follow that the accused committed murder of,
his daughter. He was liable to be punished with either imprisonment for life or death,
"under section 302, IPC, 1860 alone.330. The accused killed his stepfather, who was an",
"infirm old man and an invalid, with the latter's consent, his motive being to get three",
innocent men (his enemies) hanged. It was held that the offence was covered by,
Exception 5 to section 300 and was punishable under the first Part of this section.331.,
"Where the deceased, an old man with an enlarged and flabby heart, was lifted by the",
accused during a quarrel and thrown on the ground from some distance with sufficient,
"force and the deceased got his ribs fractured and died of a rupture of the heart, it was",
"held that the offence fell under section 325 and not under Part II of this section, as the",
accused had no intention or knowledge to cause death.332. Accused stabbed the,
deceased in a sudden incident during an election fever which resulted in his death four,
days later in hospital where he had been operated upon in a bid to save his life. There,
was no evidence that the accused intended to cause death or cause such bodily injury,
"as was sufficient in ordinary course of nature to cause death. In the circumstances, it",
was held that the case fell within clause (b) of section 299 but did not fall within clause,
"3 of section 300, IPC, 1860, and as such his conviction under section 302 was set aside",
"and he was convicted under section 304, Part I of the Code.333. Similarly, where a",
young lad of 18½ years old gave only one kassi blow to the deceased following an,
"altercation between his father and the deceased, which resulted in latter's death six",
"days after, it could not be said that he had intended to cause an injury which was",
sufficient in ordinary course of nature to cause death within the meaning of clause 3 of,
"section 300, IPC, 1860. He could be at best saddled with knowledge that his act might",
"result in death. His conviction was, therefore, changed from section 302 to section 304,",
"Part II, IPC, 1860.334. Accused, in a sudden quarrel gave a blow on the head of his",
friend with a stick weighing only 210 grams which caused his death. It was held that,
"his conviction under section 304, Part II, IPC, 1860, was improper as it could not be said",
"that he had knowledge that such a blow would cause death. His conviction was,",
"therefore, changed to one under section 323, IPC, 1860.335. In a dispute regarding the",
"right of way, the accused gave a single fist blow on the head of the deceased which",
"resulted into his death. No weapon was used, nor was there any past enmity between",
them. The accused was not held to be responsible for the death of the deceased and,
"was sentenced under section 323, IPC, 1860.336. Where a man lifted a four-year-old",
"child and threw him on the ground and thus caused his death, it was held that",
"knowledge of death under section 299, IPC, 1860, could be safely attributed to him and",
"he was therefore liable under section 304, Part-II, IPC, 1860.337. In a sudden quarrel, the",
"accused, a young man, administered a single knife blow on the chest of the deceased",
"causing his death, it was held that the case did not fall under clauses 1 and 2 of section",
"300 but since he had knowledge that death might follow, he was guilty under section",
"304, Part II, IPC, 1860.338. A police officer was punished under Part II of this section",
with seven-year RI for causing death in custody by resorting to third-degree,
methods.339. A woman deserted her husband and started living with her paramour six,
"months before the incident. Her fisherman husband, on way back from his work,",
spotted her sitting among women at outside of a neighbouring house. He approached,
"towards her. On seeing him, she ran inside. He chased and stabbed her to death. His",
conviction under Part II and sentence of five-year rigorous imprisonment was held to be,
not excessive.340. A group of persons called out the deceased from his home with a,
view to lodging a protest but suddenly one of them inflicted a knife wound which falling,
on the chest killed the deceased. The Supreme Court convicted the single wound-,
causing accused under this section saying that the heat of passion generated at the,
spur of the moment and not any intention to cause death was responsible for the,
"incident.341. In another case of the same kind before the Supreme Court, the finding",
was that the wrestler-accused had an altercation with the deceased two or three days,
before the incident. The prosecution showed that the accused came to the house of,
"the deceased, but suppressed further knowledge about the incident. Drops of blood in",
"the house showed that the deceased was injured there, ran out and fell dead. There",
was only one major injury. Conviction under Part I of this section was considered to be,
appropriate.342. Annoyance was caused by the deceased singing a vulgar song. Quarrel,
and beating in consequence continued for some time. Accused started beating the,
deceased with a stick not thick enough to cause rupture of the spleen. He might not,
have had the intention to cause death but had knowledge that death might result. His,
"conviction under section 300 (second) was converted into one under section 304, Part",
II.343. Where the victim was dragged for about 120 feet and then struck with a crowbar,
"not using much force, the accused knowing that the assault might cause death but not",
intending it. Part II was held to be attracted and not Part I.344. A person reaching home,
in a drunken state started beating his wife. Their son intervened and the accused,
hurled stones on him twice. The boy succumbed to the head injury then and there.,
"Conviction was shifted from under section 302 to 304, Part II, knowledge that death",
might be caused.345.,
"Persons exceeding the right of private defence are punished under section 304, Part I",
and not under section 302.346. Where the deceased died due to the negligent firing by a,
"person, who came for celebrating a marriage function with a gun, it was held that",
"though it is not possible to attribute intention, it is equally not possible to hold that the",
"act was done without the knowledge that it is likely to cause death. Everybody, who",
carries a gun with live cartridges and even others know that firing a gun and that too in,
"the presence of several people is an act, which is likely to cause death. Hence, the",
"liability under section 304, Part II. The appellant caused the death of his wife by beating",
her with a wooden stick. No intention to cause death was proved. He was convicted,
"under section 304, Part II.347.",
Where the death of a player was caused by blowing a cricket stump on him in a friendly,
cricket match and it was found that the accused player did not know that his act would,
"cause an injury which would cause death or which was likely to cause death, it was",
"held that a conviction under section 304, Part II was not proper, but that an offence",
under section 325 was made out as the injury was caused by a stump which is a blunt,
weapon.348.,
A married woman (25 years) met a sudden death in her matrimonial home. Her letters,
and complaints spoke of harassment. The medical report put the cause of death as,
"rupture of spleen and pancreas caused by external pressure. Her husband, who was",
"attempting to escape by resorting to the theory of death by poisoning, was found guilty",
and his conviction under Part II of this section and sentence of five years of RI was,
"upheld by the Supreme Court. Though he might not have intended to cause death, he",
did cause an injury about which he must have known that it might cause death.349.,
Where one of the accused came forward and delivered a blow on the head of a man,
"which proved fatal, the Apex Court was of the view that his act did not attract clause (1)",
or (3) of section 300 because the accused was armed with no deadly weapon and the,
head injury was caused by a farmer with an agricultural instrument which he happened,
to carry with him. Conviction of the accused causing head injury under section 300 was,
"altered to one under section 304, Part II.350. Several persons surrounded a man. Firstly,",
he was pushed down on the ground and then two injuries were caused to him one each,
by two assailants one of whom was acquitted. Opinion of the doctor was that the,
victim died due to shock and haemorrhage resulting from both the injuries. The one,
injury alone caused by the accused was not individually sufficient to cause death. His,
"conviction was altered from section 300 to that under section 304, Part II.351. Where",
the accused inflicted a single knife wound in the abdomen of a man which proved fatal,
"and the opinion of the doctor was that, but for complications, the injury was not",
"sufficient to cause death, it was held that the offence did not attract clause (3) of",
"section 300. He was convicted under section 304, Part II.352. A husband, without any",
"history of ill-feeling with his wife, attacked her with the blunt side of an axe and caused",
"a head injury after she fell down of which she died, his conviction under Part I of this",
section was held to be proper.353. Where a person killed his wife under grave and,
"sudden provocation, a lenient punishment of two years' imprisonment was awarded to",
him taking into consideration the welfare of his children.354. Where the accused,
"delivered a single stab blow on the chest of his wife out of sheer frustration,",
"momentary impulse and anger, on her refusal to oblige him with sex without any",
"intention to cause her death, his act was held to be culpable homicide not amounting to",
"murder and his conviction was altered from section 302 to section 304, Part I.355.",
A pregnant woman went to draw water from a well but she was stopped from doing so,
by several persons armed with 'lathis' and started abusing her and one of them dealt a,
"'lathi' blow on her head and another kicked her abdomen, as a result she died on the",
spot and her son who tried to rescue her was also injured. Looking at the conduct of,
"the accused, it could not be said that they had common object to kill the woman or",
"cause injury to her son. Both the assailants were convicted under section 304, Part II",
and others were acquitted.356.,
The death of a young boy was caused in a brutal and cruel manner. The trial Court,
convicted under sections 302/304. The High Court converted it to section 304 without,
specifying whether the case fell within Part I or II. Sentence of seven years',
imprisonment was imposed. The Supreme Court did not interfere.357.,
[s 304.5] CASES under Part I.—,
Where the accused with the intention of obstructing the marriage of his sister with the,
"deceased, gave only one blow which proved fatal and the accused did not repeat the",
"blow though there was nothing to stop him, conviction and sentence of the accused",
"under section 302 was altered to one under section 304, Part I.358. Where the accused",
under misapprehension that the deceased came to abduct his daughter attacked the,
"deceased with a sharp-edged weapon, without pre-meditation, causing only one injury",
"and he died after three days, conviction of the accused was altered from under section",
"300 to one under section 304, Part I.359. Where three accused persons assaulted the",
"deceased, one of the accused gave the fatal blow on the victim's head, the second",
"accused caused simple injuries on the knee and arm with spear, and the third gave",
"simple blows, it was held that the first accused was liable to be convicted under",
"section 304, Part I, and as section 34 was not applicable, the second was convicted",
under section 324 and the conviction of the third accused under section 323 was,
upheld.360.,
Where most of the injuries found on the body of the deceased were external and on,
"lower legs and on arms, it was held that intention of the accused was to cause grievous",
"hurt and not murder. Conviction of the accused was altered from sections 304/34, Part",
I to sections 325/34.361.,
[s 304.5.1] Death essential to attract section 304.—,
In Harendra Nath Mandal v State of Bihar the accused caused injury on the head of a,
man with back portion of his weapon. The injured survived the injury. Still the accused,
"was convicted under section 304, Part I. It was held by the Supreme Court that the",
accused could not be convicted under section 304 because for the application of,
"section 304, death must have been caused under any of the circumstances mentioned",
in five Exceptions of section 300.362.,
[s 304.5.2] Exceeding right of private defence.—,
Whenever accused sustains injuries in the same occurrence and when the injuries are,
"grievous in nature, it is incumbent upon the prosecution to explain the injuries on the",
person of the accused. The non-explanation of injuries sustained by the accused may,
give rise to a possibility that the accused has acted in self-defence.363. In a murder,
"case, both the parties sustained injuries in a free fight. The accused received a stab",
wound on his right shoulder. No explanation of this injury was given by the prosecution.,
It was held that the accused had caused injuries to the deceased in right of private,
"defence, but that he exceeded his right. He was punished under section 304, Part I and",
"not under section 302.364. In a dispute over possession of land, persons belong to both",
the sides were injured. The accused were in actual possession at the relevant time.,
Two of the accused received gunshot injuries. They were held to be entitled to the right,
of private defence but they exceeded their right. Conviction of the accused under,
sections 302/149 was altered to one under section 304 Part I.365. In a fight between,
"two groups, the accused fired from a distance killing one person of the other group.",
Fighting groups were not close enough so as to apprehend immediate danger to,
"anybody's life, when the firing took place. It was held that the accused had exceeded",
"the right of private defence. He was convicted under section 304, Part I.366. Where the",
"accused received injuries at the hands of the deceased and his party, it was held that",
the accused were entitled to the right of private defence but by using heavy cutting,
"weapons like 'gandasas' and causing serious injuries to the deceased, they had",
"exceeded the right of private defence and were liable to be punished under section 304,",
Part I but not for murder.367.,
[s 304.5.3] Sudden quarrel.—,
"Where as a result of provocation caused in a heat of passion upon a sudden quarrel,",
the accused chased the deceased to some distance and then gave the single fatal,
"blow, it was held that the whole incident was a continuous sequence. Hence, the",
"conviction of the accused was shifted from under section 300 to under section 304,",
"Part I.368. Where the accused came to the house at midnight, went to sleep with the",
deceased but suddenly a quarrel took place and the death occurred on account of,
"asphyxia, the incident occurred all of a sudden, without any premeditation, the accused",
"had not taken undue advantage or acted in a cruel or unusual manner; therefore, his",
"conviction under section 304, Part I of IPC, 1860 was held proper.369.",
[s 304.6] Single blow.—,
Where a solitary blow was given with a small wooden yoke on the head of the,
"deceased, conviction under section 300 was altered to one under section 304, Part",
I.370.,
[s 304.6.1] Provocation.—,
The accused suspected the fidelity of his wife who in turn labelled him as impotent. In,
"the resulting quarrel, the husband picked up a sharp weapon and struck on her vital",
parts causing death. It was held that Exception I to section 300 was attracted and the,
"accused was punishable under section 304, Part I.371.",
[s 304.7] Death after discharging from the hospital.—,
The victim received gunshot injury on head. On the condition of the victim becoming,
"better, he was discharged from the hospital. After two months of the incident, he died",
due to septicaemia. It was held that having regard to the fact that the victim survived,
for 62 days and that his condition was stable when he was discharged from the,
"hospital, the Court cannot draw an inference that the intended injury caused was",
sufficient in the ordinary course of nature to cause death so as to attract clause (3) of,
"section 300 of IPC, 1860. But as the accused used firearms and fired at the victim on",
his head and he had the intention of causing such bodily injury as is likely to cause,
"death, the conviction was altered to section 304, Part I.372.",
[s 304.8] Suicide pact.—,
The death of the deceased was not premeditated and the act of the accused causing,
death of his wife appeared to be in furtherance of the understanding between them to,
commit suicide and the consent of the deceased and the act of the accused falls under,
"Exception 5 of section 300, IPC, 1860.373.",
[s 304.9] Civil Disputes.—,
"In view of the civil disputes between the families, there was a sudden minor verbal",
exchange bloated into a sudden physical attack. Several persons of the accused group,
wielding weapons attacked the deceased and inflicted two simple injuries; one such,
simple injury turned out to be fatal sometime later. There was no intention to cause,
"death, though the accused had knowledge that the weapon used by him to inflict injury",
on the scalp of the deceased might cause death. As there was absence of intention to,
"cause death or to cause such bodily injury as was likely to cause death, the accused",
"persons were held guilty for an offence punishable under section 304, Part II, IPC, 1860",
"and not for the offence under section 300, IPC, 1860.374.",
[s 304.10] Maximum punishment.—,
"The maximum punishment that is awardable in case of offence under section 304, Part",
"II, IPC, 1860 is 10 years. In a case, the accused persons were Police Personnel whose",
duty was to act in accordance with law and caused death when the deceased was in,
police custody. The accused fudged the General Diary Register of the Police Station to,
put up their defence and put up a false plea of alibi. The accused-in-charge of police,
station prepared a false memo sending the deceased to the hospital when he was,
already dead. The accused persons were found guilty of commission of the offence,
"under section 304, Part II read with section 34, IPC, 1860 and were convicted under",
"section 304, Part II read with section 34, IPC, 1860 and were sentenced to suffer RI for",
a period of 10 years.375.,
[s 304.11] Probation.—,
"Accused was convicted under sections 304(II)/149, IPC, 1860 and sentenced to three",
years' RI. He secured a Doctorate and got employed as Senior Assistant Professor in,
"the Department of Strategic and Regional Studies, University of Jammu. Keeping in",
"view his conduct and attainments after his involvement in the matter, justified his",
release on probation.376.,
"[s 304.12] Section 304, Part II when attracted in cases of death caused by",
driving.—,
"In a case where negligence or rashness is the cause of death and nothing more,",
"section 304A may be attracted, but where the rash or negligent act is preceded with the",
"knowledge that such act is likely to cause death, section 304, Part II, IPC, 1860 may be",
attracted and if such a rash and negligent act is preceded by real intention on the part,
"of the wrong doer to cause death, offence may be punishable under section 302, IPC,",
1860.377. If a person wilfully drives a motor vehicle into the midst of a crowd and,
"thereby causes death to some person, it will not be a case of mere rash and negligent",
driving and the act will amount to culpable homicide. Doing an act with the intent to kill,
a person or knowledge that doing an act was likely to cause a person's death is,
"culpable homicide. When intent or knowledge is the direct motivating force of the act,",
section 304A has to make room for the graver and more serious charge of culpable,
homicide.378.,
[s 304.13] BMW CASE.—,
"The accused in an inebriated state, after consuming excessive alcohol, was driving the",
"vehicle without license, in a rash and negligent manner in a high speed which resulted",
"in the death of six persons. Trial Court convicted the accused under section 304, Part II,",
but High Court altered the conviction to section 304A.The Supreme Court held that the,
accused had sufficient knowledge that his action was likely to cause death and such,
"action would, in the facts and circumstances of the case fall under section 304, Part II,",
"IPC, 1860 and the trial Court has rightly held so.379. In another hit and run case,380.",
"which killed seven persons and caused injuries to eight persons, the Court held that the",
"case falls under section 304, Part II and not under section 304A by holding that the",
"person must be presumed to have had the knowledge that, his act of driving the vehicle",
"without a licence in a high speed after consuming liquor beyond the permissible limit,",
is likely or sufficient in the ordinary course of nature to cause death of the pedestrians,
on the road.,
"[s 304.14] Alteration of Charge from section 304A to section 304, Part II.—",
Permissibility.—,
Neither of the sides would have been in any manner prejudiced in the trial by framing of,
"a charge either under section 304A or section 304, Part II, IPC, 1860 except for the fact",
"that the forum trying the charge might have been different, which by itself, in our",
"opinion, would not cause any prejudice. This is because at any stage of the trial, it",
would have been open to the concerned Court to have altered the charge appropriately,
depending on the material that is brought before it in the form of evidence.381.,
"Permissibility to try and convict a person for the offence punishable under section 304,",
"Part II, IPC, 1860 and the offence punishable under section 338, IPC, 1860 for a single",
"act of the same transaction. There is no incongruity, if simultaneous with the offence",
"under section 304, Part II, a person who has done an act so rashly or negligently",
endangering human life or the personal safety of the others and causes grievous hurt,
"to any person is tried for the offence under section 338, IPC, 1860. In view of the above,",
"the Court opined that, there is no impediment in law for an offender being charged for",
"the offence under section 304, Part II IPC, 1860 and also under sections 337 and 338,",
"IPC, 1860. The two charges under section 304, Part II, IPC, 1860 and section 338, IPC,",
1860 can legally co-exist in a case of single rash or negligent act where a rash or,
negligent act is done with the knowledge of likelihood of its dangerous,
consequences.382.,
"319. Subs. by Act 26 of 1955, section 117 and Sch, for transportation for life (w.e.f. 1-1-1956).",
"320. Afrahim Sheikh, AIR 1964 SC 1263 [LNIND 1964 SC 1] : (1964) 2 Cr LJ 350 .",
"321. SJ Vaghela v State of Gujarat, AIR 2013 SC 571 [LNIND 2012 SC 1562] : 2013 Cr LJ 390",
(SC).,
"322. Rampal Singh v State of UP, 2012 Cr LJ 3765 : (2012) 8 SCC 289 [LNIND 2012 SC 425]",
"relied on Mohinder Pal Jolly v State of Punjab, 1979 AIR SC 577.",
"323. Harendra Mandal's case, JT 1993 (3) SC 650 [LNIND 1993 SC 177] : 1993 (1) Crimes 984",
[LNIND 1993 SC 177] .,
"324. Ruli Ram v State of Haryana, AIR 2002 SC 3360 [LNIND 2002 SC 585] : (2002) 7 SCC 691",
[LNIND 2002 SC 585] .,
"325. Jagriti Devi v State of HP, (2009) 14 SCC 771 [LNIND 2009 SC 1376] ; Surajit Sarkar v State",
"of WB, AIR 2013 SC 807 [LNINDORD 2012 SC 361] : 2013 (2) Cr LJ 1137 , when the accused had",
"knowledge that hitting with iron rod is likely to cause death, he is liable to be convicted under",
"section 304, Part II; Ranjitham v Basavaraj, (2012) 1 SCC 414 [LNIND 2011 SC 1185] : 2012 Cr LJ",
2135 : AIR 2012 SC 1856 [LNIND 2011 SC 1185] .,
"326. Ajit Singh v State of Punjab, 2011 (10) Scale 127 [LNIND 2011 SC 844] : (2011) 9 SCC 462",
"[LNIND 2011 SC 844] : (2011) 3 SCC (Cr) 712; on facts, when Justice Gyan Sudha Mishra",
"concluded that the case falls under section 304, Part II, Justice Bedi held it as a clear case of",
murder punishable under section 302. The question referred to the larger bench.,
"327. Rampal Singh v State of UP, 2012 AIR (SCW) 4211 : 2012 Cr LJ 3765 : (2012) 8 SCC 289",
[LNIND 2012 SC 425] .,
"328. Gandi Doddabasappa v State of Karnataka, AIR 2017 SC 1208 [LNIND 2017 SC 103] .",
"329. Santosh v State of Maharashtra, 2015 Cr LJ 4880 : (2015) 7 SCC 641 [LNIND 2015 SC 275] .",
"330. Gandi Doddabasappa v State of Karnataka, AIR 2017 SC 1208 [LNIND 2017 SC 103] .",
"331. Ujagar Singh, (1917) PR No 45 of 1917.",
"332. Putti Lal, 1969 Cr LJ 531 . Death by single hammer blow falling on head, knowledge but no",
"intention, conviction under Part II, Swarup Singh v State of Haryana, AIR 1995 SC 2452 : 1995 Cr",
LJ 4168 . Injury inflicted by the accused was sufficient in the ordinary course of nature to cause,
"death but he had no intention to cause such injury to the victim who came in between, it was",
"held that section 300, Thirdly, could not be invoked and conviction of the accused was",
"converted to one under section 304, Part II, Sebastian v State of Kerala, 1992 Cr LJ 3642 (Ker).",
"333. Jayaraj, 1976 Cr LJ 1186 : AIR 1976 SC 1519 . Public v State of AP, (1995) 2 Cr LJ 1738",
"(AP), murder without motive, conviction based on appreciation of evidence, punished under Part",
"I. Bhua Singh v State of Punjab, (1995) 2 Cr LJ 1531 , 1531 (P&H), in a sudden occurrence and",
"without pre-meditation, the accused gave a single blow with a blunt weapon which fell upon",
"head causing death, the accused was held to be punishable under Part I. His sentence of eight-",
"year term was reduced to four years. Pandurang v State of Maharashtra, (1995) 1 Cr LJ 762",
"(Bom), in an altercation and fight, one taking out pen-knife from his pocket and inflicting a chest",
"blow, punished under Part I, section 304. Karnail Singh v State of Punjab, AIR 1995 SC 1972 :",
"1995 Cr LJ 3625 : 1997 SCC (Cri) 749 , the accused causing a number of injuries to the",
"deceased, his conviction under Part I not disturbed. State of Punjab v Karnail Singh, AIR 1995 SC",
"1970 : 1995 Cr LJ 3624 , unarmed victims, fired at, one fired at while running away, no danger",
"from them, conviction under section 300 and section 304, Part I. Devku Bhika v State of Gujarat,",
AIR 1995 SC 2171 : 1995 Cr LJ 3975 (SC). Where the accused infuriated by the refusal of the,
"deceased to send his daughter to spend one night with him, picked up a stick lying nearby and",
assaulted him with it without any prior enmity causing injuries on the vital parts of the body but,
"simple in nature, it was held he could be convicted under section 304, Part II and not under",
"section 302. In the case of Bonda Devesu v State of AP, 1996 (7) SCC 115 , the accused",
belonged to a tribal community and the deceased had behaved in an obscene way with wife of,
"the accused. Having regard to the socio-economic background of the accused, the Court held it",
"to be an offence punishable under section 304, Part I and not section 302, IPC, 1860.",
"334. Randhir Singh, 1982 Cr LJ 195 (SC) : AIR 1982 SC 55 : (1981) 4 SCC 484 . See also Gurdip",
"Singh v State of Punjab, AIR 1987 SC 1151 : 1987 Cr LJ 987 : (1987) 2 SCC 14 , where there was",
"no intention to cause death, but death nevertheless resulted, conviction under section 302 was",
converted to one under this section with seven-year RI; Ramesh Laxman Pardesi v State of,
"Maharashtra, 1987 SCC (Cr) 615 : 1987 Supp SCC 1 , single blow under heated exchange of",
"words resulting in death, seven-year RI already undergone, held sufficient.",
"335. Dhyaneshwar, 1982 Cr LJ 1870 (SC).",
"336. Rupinder Singh Sandhu v State of Punjab, AIR 2018 SC 2395 [LNIND 2018 SC 276] .",
"337. Sarabjeet, 1983 Cr LJ 961 (SC) : AIR 1983 SC 529 [LNIND 1982 SC 173] : (1984) 1 SCC 673",
"[LNIND 1982 SC 173] . Assault by several persons, injuries, none sufficient to cause death",
"individually, conviction under sections 326/34 and not 302/34, Ram Meru v State of Gujarat, AIR",
1992 SC 969 : 1992 Cr LJ 1265 . A woman protested against construction on the adjoining land.,
"The accused abused her, snatched her six-year-old daughter from her hand and threw her away",
"in order to give a good thrashing to the woman. The baby died, held, no intention, nor knowledge,",
"punishable under section 325 and not 299, Ram Pal Singh v State of UP, 1993 Cr LJ 2715 (All).",
"Shankar Kondiba Gore v State of Maharashtra, (1995) 1 Cr LJ 93 (Bom), single stab injury on",
"abdomen puncturing artery at ilium, death, knowledge attributed, conviction under Part II. NK",
"Khakre v State of Maharashtra, 1996 Cr LJ 562 (Bom), striking at the head of eight-year-old child",
"resulting in death, knowledge but not intention, conviction under Part II. Balaur Singh v State of",
"Punjab, AIR 1995 SC 1956 : 1995 Cr LJ 3611 , in a free-fight between two parties, the accused",
caused a single injury by means of a gandasa on the head of the deceased and he died after six,
"days because of complications of coma and asphyxia, caused by the injury, the dimension of",
"the injury or situs thereof was not found to be calculated or targeted intentionally, besides the",
"blow was not repeated, conviction of the accused was altered from section 302 to section 304,",
Part II.,
"338. Jagtar Singh, 1983 Cr LJ 852 (SC) : AIR 1983 SC 463 [LNIND 1996 SC 826] : (1983) 2 SCC",
"342 ; see also Hari Ram, 1983 Cr LJ 346 (SC) : AIR 1983 SC 185 ; Jawaharlal, 1983 Cr LJ 429",
"(SC) : AIR 1983 SC 284 ; Tholan, 1984 Cr LJ 478 : AIR 1984 SC 759 : (1984) 2 SCC 133 ;",
"Bhabagrahi, 1985 Cr LJ 1847 (Ori). The conviction of an accused who did not come under",
section 302 and who had no intention to kill converted by the Supreme Court in Gurdip Singh v,
"State of Punjab, (1987) 2 SCC 14 : AIR 1987 SC 1151 : 1987 Cr LJ 987 into one under section",
"304, Part I; State of UP v Ram Swarup, 1988 SCC (Cr) 552 : AIR 1988 SC 1028 : 1988 All LJ 555 :",
"1988 Supp SCC 262 ; Manibhai Vithalbai v State of Gujarat, 1988 BLJR 464 : (1988) 25 All CC 223",
": 1988 Supp SCC 791; Babu Khan v State of MP, 1988 Cr LJ 1441 MP, single blow falling on heart,",
"conviction under section 304 II, setting aside under section 302; State of UP v Jodha Singh, 1989",
"Cr LJ 2113 : AIR 1989 SC 1822 : (1989) 3 SCC 465 : 1989 SCC (Cr) 591, punishment for death",
caused in sudden fight restricted to the period already spent in jail. Sudden heated exchange of,
"words between two fellow-hunters resulting in death of one by gun fire, held punishable under",
"Part I; Radha Kishan v State of Haryana, AIR 1987 SC 768 : 1987 Cr LJ 713 : (1987) 2 SCC 652 ;",
"another case of single blow in a state of drunkenness, Tarsen Singh v State of Punjab, 1987",
"Supp. SCC 600 : AIR 1987 SC 806 [LNIND 1987 SC 112] ; Kartar Singh v State of Punjab, (1988) 1",
"SCC 690 : AIR 1988 SC 2122 , accused contended that he acted in self-defence, prosecution",
"case weak, held punishable under Part II. Kailash Kaur v State of Punjab, AIR 1987 SC 1368",
"[LNIND 1987 SC 434] : 1987 Cr LJ 1127 : (1987) 2 SCC 631 [LNIND 1987 SC 434] , life term for",
"wife burning : Ram Lal v State of Punjab, 1989 Supp (1) SCC 21 : 1989 SCC (Cr) 123 : AIR 1989",
"SC 1985 [LNIND 1989 SC 471] , conviction for death caused in a sudden fight by one coming to",
"a shop bare-handed for collection of dues, and sentence under section 302 converted to one",
"under section 304, Part I, i.e., eight years' RI; Dharam Pal Singh v State (Delhi Administration),",
"1989 Supp (1) SCC 165 : 1989 SCC (Cr) 319, a matter of the same kind and Supreme Court",
"holding that death sentence was not called for and also RN Agarwal v Dharam Pal, 1989 Supp (1)",
SCC 386 : 1988 SCC (Cr) 451.,
"339. Gauri Shanker Sharma v State of UP, AIR 1990 SC 709 [LNIND 1990 SC 8] : 1990 Supp SCC",
182 .,
"340. Shanmugham v IP Marina Police, 1996 Cr LJ 3702 (Mad).",
"341. Hem Raj v State (Delhi Admn), AIR 1990 SC 2252 : 1990 Supp SCC 291 : 1990 Cr LJ 2655 .",
"Anil Ruidas v State, 1988 Cr LJ 1610 , son-in-law struck father-in-law in quarrel, conviction under",
"section 304, Part II.",
"342. State of Karnataka v Siddappa B Patil, AIR 1990 SC 1047 : 1990 Cr LJ 1116 : 1990 Supp",
"SCC 257 . See Jayaram Shiva Tagore v State of Maharashtra, AIR 1991 SC 1735 : 1991 Cr LJ",
"2192 , a plea of earlier release can be considered only when more than 14 years already served.",
"See further, Abdul Hamid v State of UP, AIR 1991 SC 339 [LNIND 1990 SC 637] : 1991 Cr LJ 431 ,",
"where there was no proof who out of the four who were present administered lathi blow,",
acquittal of all under this section as well as section 149. The court relied upon its own earlier,
"decision in Gajanand v State of UP, AIR 1954 SC 695 : 1954 Cr LJ 1746 . For another case of",
"acquittal by the Supreme Court on reappreciation of evidence, see Nain Singh v State of UP,",
"(1991) 2 SCC 432 [LNIND 1991 SC 119] ; State of UP v Suresh Chand Shukla, AIR 1991 SC 968 :",
"1991 Cr LJ 604 . Another similar conviction on direct evidence, Munir Ahmed v State of",
"Rajasthan, 1989 Cr LJ 845 : AIR 1989 SC 705 : 1989 Supp (1) SCC 377 .",
"343. Tota v State of MP, (1995) 2 Cr LJ 1515 (MP), sentence was reduced to that already",
"undergone, following Karam Singh v State of Punjab, 1993 Cr LJ 3673 : (1994) SCC (Cr) 64.",
"Where the accused continued to inflict injuries even after the deceased fell down, he exceeded",
"private defence, conviction under this section.",
"344. Krupasindhu v State of Orissa, (1995) 2 Cr LJ 1488 (Ori).",
"345. Lalya Dharma v State of Maharashtra, (1995) 1 Cr LJ 556 (Bom), conviction on the basis of",
"the sole evidence of the wife. Sukhram v State of MP, (1995) 1 Cr LJ 595 (MP), a child of tender",
"years testifying that her father struck her mother's head by a grinding stone, not relied upon, alibi",
"also proved. Phani Bhushan v State of WB, AIR 1991 SC 317 : 1991 Cr LJ 551 , death by blunt",
"weapon, conviction for dowry death quashed which was 21 years ago.",
"346. Sundaramurthy v State of TN, 1990 Cr LJ 2198 : AIR 1990 SC 2007 : 1990 Supp SCC 267 ;",
"BV Danny Mao v State of Nagaland, 1989 Cr LJ 226 (Gau), scuffle. Hanumantappa v State of",
"Karnataka, AIR 1992 SC 599 : 1992 Cr LJ 405 , the owner of a crop tried to prevent a person who",
came there with his son to cut his crop and bit at his finger. This provoked his son who struck,
"with the back side of the axe which he was carrying, convicted under this Part. State v Harisingh,",
"1998 Cr LJ 2815 (MP), dispute as to right to cultivable land, right of private defence exceeded,",
"punishment under Part I. Baburam v State, 1998 Cr LJ 3212 (Raj), single blow on head causing",
"death, conviction under Part I. Harahari Naik v State of Orissa, 1998 Cr LJ 3948 (Ori), no previous",
"meeting between accused persons, each responsible for his own act under section 304, Part I.",
"See also Vijai Bahadur Singh v State of UP, 1998 Cr LJ 2358 (All); Jaya Madhavan v State of",
"Kerala, 1998 Cr LJ 2666 (Ker); Ramanna Ku v State of AP, 1998 Cr LJ 2716 (AP); Sukhlal v State",
"of MP, 1998 Cr LJ 3187 (MP); Malkiat Singh v State, 1998 Cr LJ 4724 (P&H).",
"347. Kusha Laxman Waghmare v State of Maharashtra, 2014 Cr LJ 4394 : 2014 (10) Scale 49",
[LNIND 2014 SC 777] .,
"348. Shailesh v State of Maharashtra, (1995) 1 Cr LJ 914 (Bom).",
"349. SD Soni v State of Gujarat, AIR 1991 SC 917 [LNIND 1990 SC 807] : 1991 Cr LJ 330 .",
"Another case which had resulted in five years RI, the Supreme Court reduced the sentence to",
"one year which was already undergone and maintained the sentence of fine, Kuldeep Singh v",
"State of Haryana, 1996 Cr LJ 1884 : AIR 1996 SC 2988 [LNIND 1996 SC 317] . The accused",
"religious teacher killed one of his woman disciples with his trishul, held, ought to be punished",
under section 302 and not under Part I of this section. State of Maharashtra v Vishwas Baburao,
"Desai, 1989 Cr LJ 677 (Bom). Bride died of burns in matrimonial home within seven years of",
"marriage, there was evidence of cruelty and harassment for dowry, husband convicted under",
"Part II, Prakash Chander v State, (1995) 1 Cr LJ 368 (Del). A man struck his mother with the blunt",
"side of an axe all of a sudden because she hurled abuses on him, resulting in death, punishment",
"under Part I to be proper, Malkami v State of Orissa, 1995 Cr LJ 1484 (Ori). Two persons armed",
"with sharp weapons assaulted a man with the blunt side of their weapons till he fell down, they",
"were held liable to be convicted under Part II, Barkau v State of UP, 1993 Cr LJ 2954 (All). The",
accused more than once pounced on a lonesome person hitting him with kicks and fist blows,
"intending to assault him severely but not intending to cause death, their conviction under",
"section 302 reduced to one under section 304, Part II, Ramesh Kumar v State of Bihar, AIR 1993",
SC 2317 [LNIND 1994 SC 1303] : 1993 Cr LJ 3137 .,
"350. Pularu v State of MP, AIR 1993 SC 1375 : 1993 Cr LJ 1809 . Bilai v Orissa, 1996 Cr LJ 3171",
"(Ori), accused persons attacked the deceased with deadly weapons, no injuries caused after the",
"deceased fell down, conviction under section 304, Part II.",
"351. Bawa Singh v State of Punjab, 1993 Cr LJ 49 .",
"352. Ramaswamy v State of TN, 1993 AIR SCW 2683 : 1993 Cr LJ 3253 .",
"353. Brushava Bartha v State of Orissa, 1988 Cr LJ 1916 (Ori); Jagbar Singh v State of Punjab,",
"AIR 1983 SC 463 [LNIND 1996 SC 826] : 1983 Cr LJ 852 , a person passing across the house of",
"the accused was injured by a projecting 'parnala' (drain pipe), he protested resulting in scuffle",
between the young house inmate (the accused) and him whereupon the accused stabbed with,
"knife causing death because the stab cut the chest, held guilty under section 304, Part II and not",
"section 302. See also Kulwant Rai v State of Punjab, AIR 1982 SC 126 and Re Sundarpandian,",
"1988 LW (Cr) 64. Babrubahan Jal v State of Assam, 1991 Cr LJ 279 . Ram Kumar v State of UP,",
1990 Cr LJ 1973 (All). Accused's wife went away with a friend. Her father brought her from the,
"friend and deposited her for a short while at a relative's. The accused, a boy of 16–17 years of",
"age came there to persuade her for family life and on her point-blank refusal, he lost himself,",
"pulled out knife from his pocket, attempted one blow which the relative warded off but",
succeeded in piercing the stomach in second blow. This injury proved fatal in course of time.,
"Held guilty under section 304, Part II. State v Sunil Biswas, 1990 Cr LJ 2093 (Cal), punished",
under this section the police who arrested and subsequently beat the prisoner to death. Two,
"friends bathing in river water, one putting the other as a matter of sport into fast flowing water.",
"Thereafter, they tried to save but failed. Sentence of five years' RI was reduced to three months'",
"RI and a fine of Rs. 5,000. Benny Francis v State of Kerala, 1991 Cr LJ 2411 (Ker). Bishwanath",
"Dusadh v State of Bihar, 1991 Cr LJ 108 , Sudden quarrel, Maniyan v State of Kerala, 1990 Cr LJ",
"2515 , poison in toddy mixed on the tree itself. Deceased stealthily consumed from pot, section",
"304, Part II, not section 304A. Santa Singh v State, 1987 Cr LJ 342 (Del), the accused living in",
"Gurudwara with his son and daughter, his wife had deserted him and was living with her",
"paramour, he all of a sudden killed his daughter, convicted under section 304, Part I and not",
"section 302. Chanda Lal v State of Rajasthan, AIR 1992 SC 597 : 1992 Cr LJ 523 , 20-year long",
"history of conviction, acquittal and appeal arising out of an episode involving injuries to both",
"sides but two deaths on one side only, punished under section 304, Part II, sentence reduced to",
"that already undergone. Sukhdev Singh v State of Punjab, AIR 1992 SC 755 : 1992 Cr LJ 700 ,",
"where several attacked, the accused-appellant gave blows even after the victim fell, but it could",
"not be said to be the fatal blow, conviction under Part II of section 304. Murugan v State of TN,",
"1992 Cr LJ 930 (Mad), accused ran away after causing single knife wound, no enmity, conviction",
under this Part.,
"354. State of Karnataka v R Varadraju, (1995) 2 Cr LJ 1429 (Kant). But see T Anjanamma v State",
"of AP, AIR 1995 SC 946 : (1995) 2 Cr LJ 1462 , here wife killed her husband by burning him",
down. The same was fully proved. The Supreme Court felt that scaling down conviction for,
murder to Part I of section 304 was not proper but it was not disturbed because there was no,
"appeal against it by the State. Vedpal v State of Haryana, 1995 Cr LJ 3556 (P&H), single blow on",
"head with 'Kassi' (spade) without any prior enmity, death caused, knowledge that the act was",
"likely to cause death, conviction under Part I. State of Punjab v Tejinder Singh, AIR 1995 SC 2466",
"[LNIND 1995 SC 808] : 1995 Cr LJ 4169 , all the injuries caused with a 'gandasa' were on non-",
"vital part, except one head-injury, conviction under Part I.",
"355. Ghansham v State of Maharashtra, 1996 Cr LJ 27 (Bom).",
"356. Roop Ram v State of UP, 1995 Cr LJ 3499 (All).",
"357. Naval Kishore Singh v State of Bihar, (2004) 7 SCC 502 . Ramu v State of UP, (2004) 12 SCC",
"250 [LNIND 2004 SC 146] : AIR 2004 SC 1605 [LNIND 2004 SC 146] : 2004 Cr LJ 1407 , fatal",
"injury by spear, no motive, six persons took part in the melee, conviction under section 326,",
"three years' RI considered appropriate. Madan v State of Rajasthan, (2003) 11 SCC 756 , right of",
"private defence exceeded, defence of property, the accused being a sick person, sentence of",
"seven years' imprisonment was considered appropriate. Bagdi Ram v State of MP, (2004) 12",
SCC 302 [LNIND 2003 SC 1047] : AIR 2004 SC 387 [LNIND 2003 SC 1047] : (2004) 98 Cut LT 225,
": 2004 Cr LJ 632, one blow with gainti lying nearby in a heat of passion caused by quarrel, no",
"second attack showed no intention to cause death, conviction under section 304, Part I proper.",
"Bishan Kumar v State of Delhi, (2003) 12 SCC 771 , one holding the victim, the other stabbing in",
"the abdomen resulting in death, 10 years' RI reduced to seven years' RI, fine of 1000 rupees",
"maintained, Chanakya Dhibar v State of WB, (2004) 12 SCC 398 [LNIND 2003 SC 1146] , unlawful",
"assembly, common object, surrounded the victim, assaulted him, acquittal by the High Court set",
"aside, conviction by the trial judge restored. State of Rajasthan v Maharaj Singh, AIR 2004 SC",
"4205 [LNIND 2004 SC 1662] : (2004) 98 Cut LT 686 : 2004 Cr LJ 4195, conviction justified",
"because of overwhelming evidence, sentence reduced from 10 years' RI to five years' RI. N",
"Somashekar v State of Karnataka, (2004) 11 SCC 334 [LNIND 2004 SC 625] , police officer at a",
"swimming pool with wife, the victim sniggered at her, the officer administered him three blows",
"on the mouth, neck and shoulder, he fell dead into the swimming pool, the officer tried to cover it",
"up as drowning, but found guilty, convicted by the High Court as upheld by the Supreme Court.",
"358. Gulzar Hussain v State of UP, AIR 1992 SC 2027 : 1992 Cr LJ 3659 .",
"359. Uttam Singh v State of UP, 1992 Cr LJ 708 (All). Pirthi v State of Haryana, 1993 Cr LJ 3517",
(P&H).,
"360. Kedar Prasad v State of MP, AIR 1992 SC 1629 : 1992 Cr LJ 2520 .",
"361. Parasuraman v State of TN, AIR 1993 SC 141 [LNIND 1991 SC 447] : 1992 Cr LJ 3939 .",
"Madhusudan Satpathy v State of Orissa, AIR 1994 SC 474 : 1994 Cr LJ 144 , the sentence of a",
convict under Part I was reduced because death resulted from a single blow caused with non-,
"deadly weapon, Mohammed Salam v State of MP, 1992 Cr LJ 1612 (MP), blow with dagger, but",
"not with much force, conviction under Part I.",
"State of Punjab v Gurcharan Singh, 1998 Cr LJ 4560 : AIR 1998 SC 3115 [LNIND 1998 SC 842] ,",
"incident at the spur of moment, no intention, only one blow in sudden quarrel. Order of High",
"Court convicting accused under section 304, Part I was held to be proper. Malkiat Singh v State",
"of Bihar, 1998 Cr LJ 4712 (Pat), accused and his victim were under influence of drink, injuries",
"caused at the spur of moment without any previous enmity, no undue advantage was taken.",
"Conviction under section 304, Part I. Another similar ruling is in Jaya Madhavan v State of Kerala,",
"1998 Cr LJ 2666 (Ker). See also Sita Ram v State of Rajasthan, 1998 Cr LJ 287 (Raj). Kasam",
"Abdulla Hafiz v State of Maharashtra, 1998 Cr LJ 1422 : AIR 1998 SC 1451 [LNIND 1997 SC 1558]",
", stabbing moved inside intestines, conviction under Part I. Rameshwar v State of UP, 1997 Cr LJ",
"2677 (All), attack in connection with land dispute, unintentional killing, conviction under section",
"304, Part I. Gopal v State of TN, 1997 Cr LJ 105 (Mad), killing wife by inflicting indiscriminate",
"cuts on her neck. His surrender supported the inference of his being the killer, conviction.",
"Paramasivam v State of TN, 1997 Cr LJ 165 (Mad), one accused committed the offence and the",
"others, in order only to save him, gave out a false statement before the Village Administrative",
"Officer, conviction under sections 304, Part I and 201.",
"362. Harendra Nath Mandal v State of Bihar, AIR 1993 SC 1977 [LNIND 1993 SC 177] : 1993 Cr",
LJ 2830 : (1993) 2 SCC 435 [LNIND 1993 SC 177] .,
"363. Manphool Singh v State of Haryana, AIR 2018 SC 3995 .",
"364. Bachan Singh v State of Punjab, AIR 1993 SC 305 : 1993 Cr LJ 66 : 1993 Supp (2) SCC 490 ;",
"Trilok Singh v State (Delhi Admn.), 1994 Cr LJ 639 : 1995 SCC (Cri) 158 : AIR 1994 SC 654 , the",
"accused apprehended danger, seeing two enemies approaching him with arms, he went inside,",
"came back with knife and without move inflicted knife blows on them, one died, the right of",
"private defence exceeded, conviction under Part I. Savita Kumari v UOI, 1993 AIR SCW 1174 :",
"1993 Cr LJ 1590 : (1993) 2 SCC 357 [LNIND 1993 SC 87] , clash between two groups, one",
"causing more than one firearm injuries, right of private defence exceeded, punishable under Part",
"I. Ranveer Singh v State of MP, (2009) 3 SCC 384 [LNIND 2009 SC 123] : AIR 2009 SC 1658",
"[LNIND 2009 SC 123] : (2009) Cr LJ 1534 , exceeding the right of private defence, the High Court",
rightly punished under Part I.,
"365. Khuddu v State of UP, AIR 1993 SC 1538 : 1993 Cr LJ 2008 : 1993 Supp (3) SCC 15 .",
"366. Hari Ram v State of Rajasthan, 1992 Cr LJ 3168 (Raj).",
"367. Bahadur Singh v State of Punjab, AIR 1993 SC 70 : 1992 Cr LJ 3709 : (1992) 4 SCC 503 .",
"Pramod v State of UP, 2001 Cr LJ 925 (All), enmity on account of evidence against the accused,",
"the latter entered the house, the victim lady told him to go away and turned back, the accused",
struck her at the back with a knife. The court felt that there was no intention to cause death. He,
"was young boy of 17 years old, no criminal record. Life imprisonment was reduced to five years'",
"RI. Sekar v State of TN, 2003 Cr LJ 53 (SC), altercation over grazing sheep, owner of sheep",
struck the other and struck him in the neck again even after he had fallen down. Private defence,
"exceeded conviction under section 302 shifted to section 304, Part I, 10 years' imprisonment",
instead of life imprisonment.,
"368. V Sreedharan v State of Kerala, AIR 1992 SC 754 : 1992 Cr LJ 701 : 1992 Supp (3) SCC 21 .",
"Subramaniam v State of Kerala, 1993 Cr LJ 1387 : 1993 AIR SCW 1014, minor injuries, none on",
"vital part, conviction under Part I. RC Atodaria v State of Gujarat, AIR 1994 SC 1060 : 1994 Cr LJ",
"1425 , sudden quarrel, one stab injury, punished under Part I. State of Rajasthan v",
"Satyanarayanan, AIR 1998 SC 2060 [LNIND 1998 SC 88] : 1998 Cr LJ 2911 , sudden quarrel",
between two neighbours over boundary dispute. One came out with a knife. Other's brother,
intervened who chanced to receive the knife wound to death. Punishment under Part I.,
"369. State of MP v Abdul Latif, AIR 2018 SC 1409 [LNINDU 2018 SC 19] .",
"370. V Subramani v State of TN, 2005 Cr LJ 1727 : AIR 2005 SC 1983 [LNIND 2005 SC 224] :",
(2005) 10 SCC 358 [LNIND 2005 SC 224] .,
"371. Changdeo v State of Maharashtra, 1992 Cr LJ 1240 (Bom). See also Avula Venkateswarlu v",
"State of AP, 1994 Cr LJ 2232 (AP), quarrel between husband and wife over a petty matter, the",
"husband caused multiple injuries resulting in death, conviction under Part I; Madaiah v State of",
"Karnataka, 1992 Cr LJ 502 (Kant).",
"372. Sanjay v State of UP, 2016 Cr LJ 1117 : AIR 2016 SC 282 [LNINDU 2016 SC 8] .",
"373. Narendra v State of Rajasthan, 2014 Cr LJ 4396 : 2014 All MR (Cr) 3760.",
"374. Manoj Kumar v State of Himachal Pradesh, AIR 2018 SC 2693 [LNIND 2018 SC 274] .",
"375. State through CBI, v Sanvlo Naik, AIR 2017 SC 4976 .",
"376. Monir Alam v State of Bihar, AIR 2010 SC 698 [LNIND 2009 SC 2013] : 2010 Cr LJ 1418 :",
(2010) 12 SCC 26 [LNIND 2009 SC 2013] .,
"377. Alister Anthony Pareira v State of Maharashtra, 2012 Cr LJ 1160 (SC) : (2012) 2 SCC 648",
[LNIND 2012 SC 15] : AIR 2012 SC 3802 [LNIND 2012 SC 15] .,
"378. Naresh Giri v State of MP, (2008) 1 SCC 791 [LNIND 2007 SC 1313] : 2007 (13) Scale 7",
[LNIND 2007 SC 1313] .,
"379. State Tr PS Lodhi Colony New Delhi v Sanjeev Nanda, (2012) 8 SCC 450 [LNIND 2012 SC",
459] : 2012 Cr LJ 4174 : AIR 2012 SC 3104 [LNIND 2012 SC 459] .,
"380. Alister Anthony Pareira v State of Maharashtra, 2012 Cr LJ 1160 (SC) : (2012) 2 SCC 648",
[LNIND 2012 SC 15] : AIR 2012 SC 3802 [LNIND 2012 SC 15] .,
"381. State of Maharashtra v Salman Salim Khan, AIR 2004 SC 1189 [LNIND 2003 SC 1122] :",
(2004) 1 SCC 525 [LNIND 2003 SC 1122] .,
"382. Alister Anthony Pareira v State of Maharashtra, 2012 Cr LJ 1160 (SC) : (2012) 2 SCC 648",
[LNIND 2012 SC 15] : AIR 2012 SC 3802 [LNIND 2012 SC 15] .,
THE INDIAN PENAL CODE,
CHAPTER XVI OF OFFENCES AFFECTING THE HUMAN BODY OF,
OFFENCES AFFECTING LIFE,
383.[[s 304A] Causing death by negligence,
Whoever causes the death of any person by doing any rash or negligent act 1 not,
"amounting to culpable homicide, 2 shall be punished with imprisonment of either",
"description for a term which may extend to two years, or with fine, or with both.]",
COMMENT.—,
"Section 304A was inserted in IPC, 1860 by IPC (Amendment) Act, 1870 (27 of 1870) to",
cover those cases wherein a person caused the death of another by such acts as are,
rash or negligent but there is no intention to cause death and no knowledge that the act,
will cause death. The case should not be covered by sections 299 and 300 only then it,
will come under this section. The section provides punishment of either description for,
a term which may extend to two years or fine or both in case of homicide by rash or,
negligent act.384.,
Essential ingredients of section 304A are the following:,
(i) Death of a person,
(ii) Death was caused by accused during any rash or negligence act.,
(iii) Act does not amount to culpable homicide.,
"And to prove negligence under Criminal Law, the prosecution must prove:",
(i) The existence of duty.,
(ii) A breach of the duty causing death.,
(iii) The breach of the duty must be characterised as gross negligence.385.,
[s 304A.1] Scope.—,
"In order that a person may be guilty under this section, the rash or negligent act must",
be the direct or proximate cause of the death.386. The section deals with homicide by,
negligence.,
[s 304A.2] Concept of Negligence in Civil law and Criminal Law.—,
The jurisprudential concept of negligence differs in civil and criminal law. What may be,
negligence in civil law may not necessarily be negligence in criminal law. For,
"negligence to amount to an offence, the element of mens rea must be shown to exist.",
"For an act to amount to criminal negligence, the degree of negligence should be of a",
much higher degree. A negligence which is not of such a high degree may provide a,
ground for action in civil law but cannot form the basis for prosecution. To prosecute a,
"medical professional for negligence under criminal law, it must be shown that the",
accused did something or failed to do something which in the given facts and,
circumstances no medical professional in his ordinary senses and prudence would,
"have done or failed to do.387. For an act of negligence to be culpable in criminal law,",
the degree of such negligence must be higher than what is sufficient to prove a case of,
negligence in a civil action. Judicial pronouncements have repeatedly declared that in,
"order to constitute an offence, negligence must be gross in nature.388.",
1. 'Rash or negligent act'.—The term negligence is not defined in the Code. As per,
"Straight, J, the criminality lies in running the risk of doing such an act with recklessness",
or indifference as to the consequences. Criminal negligence is the gross and culpable,
neglect or failure to exercise that reasonable and proper care and precaution to guard,
"against injury either to the public generally or to an individual in particular, which,",
"having regard to all the circumstances out of which the charge has arisen, it was the",
"imperative, duty of the accused person to have adopted.389. It may be stated that",
"negligence is the omission to do something which a reasonable man, guided upon",
"those considerations which ordinarily regulate the conduct of human affairs would do,",
or doing something which a reasonable and prudent man would not do.390. The,
"distinction between the ""rashness"" and ""negligence"" is that while in the former, the doer",
"knows about the consequences, but in the latter, the doer is unaware of the",
"consequences. A rash act is a negligent act done precipitately. Negligence is the genus,",
(sic) of which rashness is the species. It has sometimes been observed that in,
rashness the action is done precipitately that the mischievous or illegal consequences,
"may fall, but with a hope that they will not.391. The section explicitly lays down that only",
"that 'act' which is ""so rashly or negligently as to endanger human life, or the personal",
"safety of others, shall be punished..."". Thus, the section itself carves out the standard of",
criminal negligence intended to distinguish between those whose failure is culpable,
"and those whose conduct, although not up to standard, is not deserving of",
punishment.392.,
Negligence signifies the breach of a duty to do something which a reasonably prudent,
man would under the circumstances have done or doing something which when judged,
from reasonably prudent standards should not have been done. The essence of,
negligence whether arising from an act of commission or omission lies in neglect of,
care towards a person to whom the Defendant or the accused as the case may be,
owes a duty of care to prevent damage or injury to the property or the person of the,
"victim. The existence of a duty to care is, thus, the first and most fundamental of",
"ingredients in any civil or criminal action brought on the basis of negligence, breach of",
such duty and consequences flowing from the same being the other two. It follows that,
in any forensic exercise aimed at finding out whether there was any negligence on the,
"part of the Defendant/accused, the Courts will have to address the above three aspects",
to find a correct answer to the charge.393.,
Culpable rashness is acting with the consciousness that the mischievous and illegal,
"consequences may follow, but with the hope that they will not, and often with the belief",
that the actor has taken sufficient precaution to prevent their happening. The,
imputability arises from acting despite the consciousness (luxuria). Culpable,
negligence is acting without the consciousness that the illegal and mischievous effect,
"will follow, but in circumstances which show that the actor has not exercised the",
"caution incumbent upon him, and that, if he had, he would have had the consciousness.",
The imputability arises from the neglect of the civic duty of circumspection. It is,
"manifest that personal injury, consciously and intentionally caused, cannot fall within",
"either of these categories, which are wholly inapplicable to the case of an act or series",
"of acts, themselves intended, which are the direct producers of death. To say that",
"because, in the opinion of the operator, the sufferer could have borne a little more",
"without death following, the act amounts merely to rashness because he has carried",
the experiment too far results from an obvious and dangerous misconception...It is,
"clear, however, that if the words, 'not amounting to culpable homicide,' are a part of the",
"definition, the offence defined by this section consists of the rash or negligent act not",
"falling under that category, as much as of its fulfilling the positive requirement of being",
the cause of death.394.,
A rash act is primarily an overhasty act and is opposed to a deliberate act; even if it is,
"partly deliberate, it is done without due thought and caution.395. Illegal omission is ""act""",
under this section and may constitute an offence if it is negligent.396. In this,
"connection, see also sub-para entitled ""Rash or Negligent"" under section 279, IPC,",
"1860, ante.",
"Death should have been the direct result of a rash and negligent act of the accused,",
and that act must be the proximate and efficient cause without the intervention of,
"another's negligence. It must be the causa causans, it is not enough that it may have",
been the causa sine qua non.397. This view has been approved by the Supreme,
"Court.398. The Bombay High Court has said that in cases falling under this section, it is",
dangerous to attempt to distinguish between the approximate and ultimate cause of,
"death.399. Where the accused, a motor driver, ran over and killed a woman, but there",
was no rashness or negligence on the part of the driver so far as his use of the road or,
"manner of driving was concerned, it was held that the accused could not be convicted",
under this section on the ground that the brakes of the lorry were not in perfect order,
"and that the lorry carried no horn. The ""rash or negligent act"" referred to in the section",
"means the act which is the immediate cause of death and not any act or omission,",
which can at most be said to be a remote cause of death.400. Negligence on the part of,
a motorist cannot be presumed under this section by the mere fact that a man is,
"knocked down and killed by him.401. To render a person liable for neglect of duty, there",
must be such a degree of culpability as to amount to gross negligence on his part. It is,
not every little slip or mistake that will make a man so liable.402. A passenger was,
standing on the footboard of a bus to the knowledge of the driver and even so the,
driver negotiated a sharp turn without slowing down. The passenger fell off to his,
death. The driver was held to be guilty under the section.403. A woman was boarding,
the bus from the front entrance. The conductor whistled and the driver took off,
"speedily. Either of them could have known whether she had come in or not, but neither",
cared to do so. She fell off and was crushed by the rear wheel. No doubt remained in,
the mind that the driver and the conductor were guilty of a rash and negligent act.404.,
Intentional shooting at a fleeing person and hitting someone else to death would come,
under section 300 read with section 301. It is not a negligent act so as to come under,
section 304A.405.,
2. 'Not amounting to culpable homicide'.—,
"Section 304A is directed at offences outside the range of ss. 299 and 300, and obviously",
contemplates those cases into which neither intention nor knowledge enters. For the rash or,
"negligent act which is declared to be a crime is one 'not amounting to culpable homicide',",
"and it must therefore be taken that intentionally or knowingly inflicted violence, directly and",
"wilfully caused, is excluded. Section 304A does not say that every unjustifiable or",
inexcusable act of killing not hereinbefore mentioned shall be punishable under the,
"provisions of this section, but it specifically and in terms limits itself to those rash or",
negligent acts which cause death but fall short of culpable homicide of either,
description.406.,
[s 304A.3] Doctrine of reasonable care.—,
"The Court has to adopt another parameter, i.e., 'reasonable care' in determining the",
question of negligence or contributory negligence. The doctrine of reasonable care,
imposes an obligation or a duty upon a person (for example a driver) to care for the,
pedestrian on the road and this duty attains a higher degree when pedestrians happen,
to be children of tender years. It is axiomatic to say that while driving a vehicle on a,
"public way, there is an implicit duty cast on the drivers to see that their driving does not",
"endanger the life of the right users of the road, maybe either vehicular users or",
pedestrians. They are expected to take sufficient care to avoid danger to others.,
'Negligence' means omission to do something which a reasonable and prudent person,
guided by the considerations which ordinarily regulate human affairs would do or doing,
something which a prudent and reasonable person guided by similar considerations,
would not do. Negligence is not an absolute term but is a relative one; it is rather a,
comparative term. It is difficult to state with precision any mathematically exact,
formula by which negligence or lack of it can be infallibly measured in a given case.,
Whether there exists negligence per se or the course of conduct amounts to,
"negligence, will normally depend upon the attending and surrounding facts and",
"circumstances which have to be taken into consideration by the Court. In a given case,",
even not doing what one was ought to do can constitute negligence.407.,
[s 304A.4] Contributory negligence.—,
"The doctrine of contributory negligence does not apply to criminal liability, that is,",
where the death of a person is caused partly by the negligence of the accused and,
partly by his own negligence. If the accused is charged with contributing to the death of,
"the deceased by his negligence, it matters not whether the deceased was deaf, or",
"drunk, or negligent, or in part contributed to his own death.408. In this connection, see",
"also sub-para entitled ""Contributory negligence"" under section 279, IPC, 1860, ante.",
[s 304A.5] Laying trap by live wire.—,
The accused had connected live wire with his bicycle with a view to ward off mischief,
making children. A child touched the bicycle and got shock and ultimately died. It was,
"held that the act of the accused amounted to negligence as he placed no sign board,",
caution or warning for not touching the bicycle and was liable to be punished under,
"section 304A and under section 304, Part II.409.",
[s 304A.6] Degree and nature of care expected of an occupier of a cinema building.—,
"The Supreme Court, in Sushil Ansal v State Through CBI,410. (Uphaar Cinema building",
tragedy case) opined that:,
"Reverting back to the degree and nature of care expected of an occupier of a cinema hall,",
we must at the outset say that the nature and degree of care is expected to be such as,
would ensure the safety of the visitors against all foreseeable dangers and harm. That is the,
essence of the duty which an occupier owes to the invitees whether contractual or,
"otherwise. The nature of care that the occupier must, therefore, take would depend upon the",
"fact situation in which duty to care arises. For instance, in the case of a hotel which offers to",
"its clients the facility of a swimming pool, the nature of the care that the occupier of the",
hotel would be expected to take would be different from what is expected of an occupier of,
a cinema hall.,
An occupier of a cinema would be expected to take all those steps which are a part of his,
duty to care for the safety and security of all those visiting the cinema for watching a,
cinematograph exhibition. What is important is that the duty to care is not a onetime affair.,
It is a continuing obligation which the occupier owes towards every invitee contractual or,
otherwise every time an exhibition of the cinematograph takes place. What is equally,
"important is that not only under the common law but even under the statutory regimen, the",
"obligation to ensure safety of the invitees is undeniable, and any neglect of the duty is",
"actionable both as a civil and criminal wrong, depending upon whether the negligence is",
simple or gross.,
[s 304A.6.1] Mens rea.—,
The essential ingredient of mens rea cannot be excluded from consideration when the,
charge in a criminal Court consists of criminal negligence.411.,
[s 304A.6.2] Res ipsa Loquitur.—,
This doctrine serves two purposes—one that an accident may by its nature be more,
consistent with its being caused by negligence for which the opposite party is,
"responsible than by any other causes and that in such a case, the mere fact of the",
"accident is prima facie evidence of such negligence. Second, it is to avoid hardship in",
cases where the claimant is able to prove the accident but cannot prove how the,
accident occurred. The Courts have also applied the principle of res ipsa loquitur in,
cases where no direct evidence was brought on record. Elements of this doctrine may,
be stated as:,
(a) The event would not have occurred but for someone's negligence.,
(b) The evidence on record rules out the possibility that actions of the victim or some,
third party could be the reason behind the event.,
(c) Accused was negligent and owed a duty of care towards the victim.412. In our,
"current conditions, the law under section 304A, IPC, 1860 and under the rubric of",
"negligence, must have due regard to the fatal frequency of rash driving of heavy duty",
"vehicles and of speeding menaces. Thus viewed, it is fair to apply the rule of res ipsa",
"loquitur, of course, with care. Conventional defences, except under compelling",
"evidence, must break down before the pragmatic Court and must be given short shrift.",
"Looked at from this angle, the Court held that the present case deserved no",
consideration on the question of conviction.413. The principle of res ipsa loquitur is only,
a rule of evidence to determine the onus of proof in actions relating to negligence. The,
said principle has application only when the nature of the accident and the attending,
circumstances would reasonably lead to the belief that in the absence of negligence,
the accident would not have occurred and that the thing which caused injury is shown,
to have been under the management and control of the alleged wrongdoer.414. Res ipsa,
loquitur is only a rule of evidence and operates in the domain of civil law specially in,
cases of torts and helps in determining the onus of proof in actions relating to,
negligence. It cannot be pressed in service for determining per se the liability for,
"negligence within the domain of criminal law. Res ipsa loquitur has, if at all, a limited",
application in trial on a charge of criminal negligence.415. Where a vehicle was being,
driven on a wrong side and an accident took place resulting in the death of two,
"persons, the principle of res ipsa loquitur should have been applied.416. In the case of",
"Thakur Singh v State of Punjab,417. the accused drove a bus rashly and negligently with",
"41 passengers and while crossing a bridge, the bus fell into the nearby canal resulting",
in death of all the passengers. The Court applied the doctrine of res ipsa loquitur since,
admittedly the petitioner was driving the bus at the relevant time and it was going over,
the bridge when it fell down. Evidence on record discloses that the bus had gone and,
"dashed into a standing tree situated on the right side of the road. Unless, the vehicle",
"had been driven rashly and/or negligently, the vehicle which had no mechanical defect",
"would not have dashed to a standing tree, that too, on the right side of the road. The",
"factum of accident having been admitted in section 313, Cr PC, 1973 statement, the",
legal doctrine res ipsa loquitur gets attracted.418.,
Where a vehicle driven at a high speed knocked down the deceased who was walking,
"on the left side of the road and breaking the roadside fencing got stuck up in a ditch, it",
was held that the maxim res ipsa loquitur was applicable and the accused driver could,
be held guilty of rash and negligent driving.419.,
The Supreme Court explained the principle in the following words.420.,
The principle of res ipsa loquitor is only a rule of evidence to determine the onus of proof in,
actions relating to negligence. The principle has application only when the nature of the,
accident and attending circumstances would reasonably lead to the belief that in the,
absence of negligence the accident would not have occurred and the thing which caused,
injury is shown to have been under the management and control of the alleged wrongdoer.,
"The maxim, however, was not applicable to the present case. The bus moved away",
while a passenger was trying to board it. He fell down to his injuries. There could be no,
presumption of negligence. It had to be further shown that the driver moved away the,
bus suddenly or before getting signal from the conductor where a car hit a tree,
resulting in the death of one of the passengers and injuries to others and though the,
road was of sufficient width and no obstruction was present and the report of the,
"motor vehicles inspector was that there was no mechanical defect in the car, it was",
held that a presumption as to negligence could be drawn and the burden was on the,
driver to show that there was no negligence on his part.421.,
[s 304A.7] Accidents.—Defence of mechanical failure.—,
"According to the defence, the vehicle turned turtle due to mechanical failure, i.e., non-",
functioning of the hydraulic system in a proper manner. The manner in which the,
accident occurred due to detachment of the trailer from the tractor and the distance to,
which the tractor moved vividly reveals that the vehicle in question was driven,
recklessly at a high speed. The plea of mechanical failure as put forth by the accused,
was not even suggested to the Inspector. Plea rejected.422. Accused took the plea that,
accident happened due to bursting of tyre of scooter. Bursting of tyre may happen only,
when the tube and tyre have already spent their lives or in the event of poor,
maintenance of same. Mechanical failure of a vehicle contributing to cause of an,
"accident is also a factor coming under ""poor maintenance"". Rejecting the plea, the",
Orissa High Court held that poor maintenance of vehicle is itself a negligent act.423.,
[s 304A.8] High Speed.—,
Driving at a high speed is not in itself a negligent act.424. In the case of Ravi Kapur v,
"State of Rajasthan,425. the Apex Court has observed that, a person who drives a vehicle",
on the road is liable to be held responsible for the act as well as for the result and that,
it may not always be possible to determine with reference to the speed of a vehicle,
whether a person was driving rashly and negligently and that even when one is driving a,
"vehicle at slow speed, but, recklessly and negligently, it would amount to rash and",
"negligent driving within the meaning of the language of section 279, IPC, 1860. Mere",
driving of a vehicle at a high speed or slow speed does not lead to an inference that,
negligent or rash driving had caused the accident resulting in injuries to the,
"complainant. In fact, the speed is no criteria to establish the fact of rash and negligent",
driving of a vehicle.426. Absence of rash speed itself cannot absolve the petitioner.427.,
Where the accused came driving canter at a very fast speed in rash and negligent,
manner and dashed against victim girls resulting into death of one and injuries to,
"another, relying on the testimony of complainant, Court convicted the accused under",
"section 304A.428. In a case, the accused drove the vehicle ignoring the signal given to",
stop the bus by a police officer in uniform. There was absolutely no turn or bend on the,
road which could have prevented the accused from noticing the victim in uniform on,
road. Accident occurred on account of rash and negligent act of applicant/accused and,
led to death of victim. Conviction of accused was held proper by the Bombay High,
Court.429.,
[s 304A.9] Medical negligence.—,
"In PB Desai (Dr) v State of Maharashtra,430.,431. the Supreme Court held that due to the",
"very nature of the medical profession, the degree of responsibility on the practitioner is",
"higher than that of any other service provider. To fasten liability in criminal law, the",
degree of negligence has to be higher than that of negligence enough to fasten liability,
for damages in civil law. The essential ingredient of mens rea cannot be excluded from,
consideration when the charge in a criminal Court consists of criminal negligence.,
"Where negligence is an essential ingredient of the offence, the negligence to be",
established by the prosecution must be culpable or gross and not the negligence,
merely based upon an error of judgment.,
[s 304A.9.1] Bolam Test.—,
The test for determining medical negligence as laid down in Bolam v Friern Hospital,
"Management Committee,432. holds good in its applicability in India.433. In the Bolam",
"case, it was held that:",
"Where you get a situation which involves the use of some special skill or competence, then",
the test as to whether there has been negligence or not is not the test of the man on the top,
"of a Clapham omnibus, because he has not got this special skill. The test is the standard of",
the ordinary skilled man exercising and professing to have that special skill... A man need,
not possess the highest expert skill; it is well established law that it is sufficient if he,
exercises the ordinary skill of an ordinary competent man exercising that particular art.,
"In many cases, the Supreme Court approved and applied this test for determining the",
"negligence. In Jacob Mathew v State of Punjab,434. the Supreme Court observed:",
"The water of Bolam test has ever since flown and passed under several bridges, having",
"been cited and dealt with in several judicial pronouncements, one after the other and has",
"continued to be well received by every shore it has touched as neat, clean and well-",
condensed one.,
"When a patient agrees to go for medical treatment or surgical operation, every careless",
act of the medical man cannot be termed as 'criminal.' It can be termed 'criminal' only,
when the medical man exhibits a gross lack of competence or inaction and wanton,
indifference to his patient's safety and which is found to have arisen from gross,
ignorance or gross negligence. Where a patient's death results merely from error of,
"judgment or an accident, no criminal liability should be attached to it. Mere",
inadvertence or some degree of want of adequate care and caution might create civil,
liability but would not suffice to hold him criminally liable.435. Negligence cannot be,
attributed to a doctor so long as he performs his duties with reasonable skill and,
competence. Merely because the doctor chooses one course of action in preference to,
"the other one available, he would not be liable if the course of action chosen by him",
was acceptable to the medical profession.436. In Suresh Gupta (Dr) v Govt of NCT of,
"Delhi,437. the Apex Court held that where the medical practitioner failed to take",
"appropriate steps, viz., ""not putting a cuffed endotracheal tube of proper size"" so as to",
"prevent aspiration of blood blocking respiratory passage, the act attributed to him may",
be described as negligent act but not so reckless as to make him criminally liable.,
[s 304A.10] Duty of the Investigating Officer.—,
A doctor accused of rashness or negligence may not be arrested in a routine manner,
(simply because a charge has been levelled against him). Unless his arrest is,
necessary for furthering the investigation or for collecting evidence or unless the,
investigating officer feels satisfied that the doctor proceeded against would not make,
"himself available to face the prosecution unless arrested, the arrest may be",
withheld.438.,
[s 304A.11] Private Complaint.—,
A private complaint may not be entertained unless the complainant has produced,
prima facie evidence before the Court in the form of a credible opinion given by another,
competent doctor to support the charge of rashness or negligence on the part of the,
accused doctor.439. Complaint alleging Medical Negligence in treatment of husband of,
"complainant. In absence of any expert opinion regarding negligence of doctor, criminal",
prosecution against him is not maintainable.440.,
[s 304A.12] Burden of proof.—,
"In a case involving medical negligence, once the initial burden has been discharged by",
the complainant by making out a case of negligence on the part of the hospital or the,
"doctor concerned, the onus then shifts on to the hospital or to the attending doctors",
and it is for the hospital to satisfy the Court that there was no lack of care or,
diligence.441.,
[s 304A.13] Individual liability of Doctors.—,
"For establishing medical negligence or deficiency in service, the Courts would",
determine the following:,
(i) No guarantee is given by any doctor or surgeon that the patient would be cured.,
"(ii) The doctor, however, must undertake a fair, reasonable and competent degree of",
"skill, which may not be the highest skill.",
"(iii) Adoption of one of the modes of treatment, if there are many, and treating the",
patient with due care and caution would not constitute any negligence.,
"(iv) Failure to act in accordance with the standard, reasonable, competent medical",
"means at the time would not constitute a negligence. However, a medical",
practitioner must exercise the reasonable degree of care and skill and,
knowledge which he possesses. Failure to use due skill in diagnosis with the,
result that wrong treatment is given would be negligence.,
"(v) In a complicated case, the Court would be slow in contributing negligence on the",
"part of the doctor, if he is performing his duties to the best of his ability.442.",
Law relating to medical negligence laid down by the Supreme Court in Jacob Mathew,
Case,
(1) Negligence is the breach of a duty caused by omission to do something which a,
reasonable man guided by those considerations which ordinarily regulate the conduct,
"of human affairs would do, or doing something which a prudent and reasonable man",
"would not do. The definition of negligence as given in Ratanlal Ranchhoddas, and",
"Dhirajlal Keshavlal Thakore, The Law of Torts, 26th Edn, Bombay law reporter Office,",
"2013 (edited by Justice G.P. Singh), referred to hereinabove, holds good. Negligence",
becomes actionable on account of injury resulting from the act or omission amounting,
to negligence attributable to the person sued. The essential components of negligence,
"are three: 'duty', 'breach' and 'resulting damage'.",
(2) Negligence in the context of medical profession necessarily calls for a treatment,
"with a difference. To infer rashness or negligence on the part of a professional, in",
"particular a doctor, additional considerations apply. A case of occupational negligence",
"is different from one of professional negligence. A simple lack of care, an error of",
"judgment or an accident, is not proof of negligence on the part of a medical",
professional. So long as a doctor follows a practice acceptable to the medical,
"profession of that day, he cannot be held liable for negligence merely because a better",
alternative course or method of treatment was also available or simply because a more,
skilled doctor would not have chosen to follow or resort to that practice or procedure,
"which the accused followed. When it comes to the failure of taking precautions, what",
has to be seen is whether those precautions were taken which the ordinary experience,
of men has found to be sufficient; a failure to use special or extraordinary precautions,
which might have prevented the particular happening cannot be the standard for,
"judging the alleged negligence. So also, the standard of care, while assessing the",
"practice as adopted, is judged in the light of knowledge available at the time of the",
"incident, and not at the date of trial. Similarly, when the charge of negligence arises out",
"of failure to use some particular equipment, the charge would fail if the equipment was",
"not generally available at that particular time (that is, the time of the incident) at which",
it is suggested it should have been used.,
(3) A professional may be held liable for negligence on one of the two findings: either,
"he was not possessed of the requisite skill which he professed to have possessed, or,",
"he did not exercise, with reasonable competence in the given case, the skill which he",
"did possess. The standard to be applied for judging, whether the person charged has",
"been negligent or not, would be that of an ordinary competent person exercising",
ordinary skill in that profession. It is not possible for every professional to possess the,
highest level of expertise or skills in that branch which he practices. A highly skilled,
"professional may be possessed of better qualities, but that cannot be made the basis",
or the yardstick for judging the performance of the professional proceeded against on,
indictment of negligence.,
(4) The test for determining medical negligence as laid down in Bolam v Friern Hospital,
"Management Committee,443. holds good in its applicability in India.",
(5) The jurisprudential concept of negligence differs in civil and criminal law. What may,
be negligence in civil law may not necessarily be negligence in criminal law. For,
"negligence to amount to an offence, the element of mens rea must be shown to exist.",
"For an act to amount to criminal negligence, the degree of negligence should be much",
"higher, i.e., gross or of a very high degree. Negligence which is neither gross nor of a",
higher degree may provide a ground for action in civil law but cannot form the basis for,
prosecution.,
"(6) The word 'gross' has not been used in section 304A of IPC, 1860, yet it is settled",
"that in criminal law negligence or recklessness, to be so held, must be of such a high",
degree as to be 'gross'. The expression 'rash or negligent act' as occurring in section,
"304A of the IPC, 1860 has to be read as qualified by the word 'grossly'.",
"(7) To prosecute a medical professional for negligence under criminal law, it must be",
shown that the accused did something or failed to do something which in the given,
facts and circumstances no medical professional in his ordinary senses and prudence,
would have done or failed to do. The hazard taken by the accused doctor should be of,
such a nature that the injury which resulted was most likely imminent.,
(8) Res ipsa loquitur is only a rule of evidence and operates in the domain of civil law,
specially in cases of torts and helps in determining the onus of proof in actions relating,
to negligence. It cannot be pressed in service for determining per se the liability for,
"negligence within the domain of criminal law. Res ipsa loquitur has, if at all, a limited",
application in trial on a charge of criminal negligence.,
[Jacob Mathew v State of Punjab.444. See also PB Desai (Dr) v State of Maharashtra.445.],
A person sustained fracture injuries in an accident. He died while he was under,
operation. The cause of death was found to be administration of spinal anaesthesia,
which was injected through spinal cord without checking the bearing capacity of the,
patient. It amounted to criminal negligence. The failure of the surgeons to check the,
"state of the patient after anaesthesia might also amount to negligence, the Court said.",
Conviction under the section would have been proper. This would also attract civil,
liability. The quashing of the criminal proceedings was not a bar to institution of a civil,
suit.446.,
The accused was not a qualified doctor. He administered an injection to a patient who,
died because the possible reaction was not tested beforehand. The Court said that the,
accused was guilty of causing death by rash and negligent act.447.,
The degree of negligence sufficient to fasten liability under section 304A is higher than,
that required to fasten liability in civil proceedings. Non-exercise of reasonable care on,
the part of the doctor may suffice to fasten on him civil liability but in order to fasten,
"criminal liability, gross negligence on his part amounting to recklessness has to be",
proved.448.,
Supreme Court Guidelines in Medical Negligence Cases,
On scrutiny of the leading cases of medical negligence both in our country and other,
"countries, specially United Kingdom, some basic principles emerge in dealing with the",
cases of medical negligence. While deciding whether the medical professional is guilty,
"of medical negligence, following well-known principles must be kept in view:",
(I) Negligence is the breach of a duty exercised by omission to do something which a,
"reasonable man, guided by those considerations which ordinarily regulate the conduct",
"of human affairs, would do, or doing something which a prudent and reasonable man",
would not do.,
(II) Negligence is an essential ingredient of the offence. The negligence to be,
established by the prosecution must be culpable or gross and not the negligence,
merely based upon an error of judgment.,
(III) The medical professional is expected to bring a reasonable degree of skill and,
knowledge and must exercise a reasonable degree of care. Neither the very highest nor,
a very low degree of care and competence judged in the light of the particular,
circumstances of each case is what the law requires.,
(IV) A medical practitioner would be liable only where his conduct fell below that of the,
standards of a reasonably competent practitioner in his field.,
"(V) In the realm of diagnosis and treatment, there is scope for genuine difference of",
opinion and one professional doctor is clearly not negligent merely because his,
conclusion differs from that of another professional doctor.,
(VI) The medical professional is often called upon to adopt a procedure which involves,
"higher element of risk, but which he honestly believes as providing greater chances of",
"success for the patient, rather than a procedure involving lesser risk but higher chances",
of failure. Just because a professional looking to the gravity of illness has taken higher,
element of risk to redeem the patient out of his/her suffering which did not yield the,
desired result may not amount to negligence.,
(VII) Negligence cannot be attributed to a doctor so long as he performs his duties with,
reasonable skill and competence. Merely because the doctor chooses one course of,
"action in preference to the other one available, he would not be liable if the course of",
action chosen by him was acceptable to the medical profession.,
(VIII) It would not be conducive to the efficiency of the medical profession if no Doctor,
could administer medicine without a halter round his neck.,
(IX) It is our bounden duty and obligation of the civil society to ensure that the medical,
professionals are not unnecessarily harassed or humiliated so that they can perform,
their professional duties without fear and apprehension.,
(X) The medical practitioners at times also have to be saved from such a class of,
complainants who use criminal process as a tool for pressurising the medical,
professionals/hospitals particularly private hospitals or clinics for extracting uncalled,
for compensation. Such malicious proceedings deserve to be discarded against the,
medical practitioners.,
(XI) The medical professionals are entitled to get protection so long as they perform,
their duties with reasonable skill and competence and in the interest of the patients.,
The interest and welfare of the patients have to be paramount for the medical,
professionals.,
[Kusum Sharma v Batra Hospital and Medical Research Centre.449.],
[s 304A.14] CASES.—Medical Negligence.—,
Non-providing of ambulance when attendants were shifting the patient to Trauma,
"Centre, even if it was not asked for by them, may be an instance where there is no",
negligence in the treatment but may be deficiency in service or civil negligence as was,
held in similar circumstances in the case of Pravat Kumar Mukherjee v Ruby General,
"Hospital.450. In a case, a Cardiac surgeon was indicted in a prosecution under section",
304A on the grounds that he chose to conduct the angioplasty without having a,
surgical standby unit and such failure resulted in delay of five hours in conducting by-,
pass after the angioplasty failed; and he did not consult a cardio anaesthetist before,
"conducting an angioplasty. According to the High Court, both the above-mentioned",
"'lapses' on the part of the appellant ""clearly show the negligence"" of the accused-",
"surgeon. While quashing the proceedings, the Supreme Court held that the prosecution",
of the accused is uncalled for as pointed out by the Court in Jacob Mathew's case,
"(supra) that the negligence, if any, on the part of the accused cannot be said to be",
"""gross"".451.",
[s 304A.15] Delegation of responsibility.—,
Even delegation of responsibility to another may amount to negligence in certain,
circumstances. A consultant could be negligent where he delegates the responsibility,
to his junior with the knowledge that the junior was incapable of performing his duties,
properly.452.,
[s 304A.16] Negligence of nurse.—,
Where the allegation that the accused nurse told the doctor that the vaccine for snake,
"bite was not available, when it was actually available, considering the delay of two and",
"half hours in bringing the patient to the hospital, it was held that there was no direct",
nexus between the rash and negligent act and death of deceased.453.,
"The accused, a Homeopathic practitioner, administered to a patient suffering from",
"guinea worm, 24 drops of stramonium and a leaf of dhatura without studying its effect;",
the patient died of poisoning. The accused was held guilty under this section.454.,
[s 304A.17] Negligence on the part of the bus driver when a passenger fell down from,
a bus.—,
A passenger might fall down from a moving vehicle due to one of the following causes:,
it could be accidental; it could be due to the negligence of the passenger himself; it,
"could be due to the negligent taking off the bus by the driver. However, to fasten the",
"liability with the driver for negligent driving in such a situation, there should be the",
evidence that he moved the bus suddenly before the passenger could get into the,
vehicle or that the driver moved the vehicle even before getting any signal from the rear,
"side. Merely because a passenger fell down from the bus while boarding the bus, no",
presumption of negligence can be drawn against the driver of the bus.455. When,
"deceased was alighting from the bus, the accused driver suddenly started the bus, as a",
"result of which, he fell down and sustained injuries. It cannot be said that driver had not",
seen the deceased alighting from bus—negligence and rashness is writ large. It does,
not require any imagination to hold that it was basic duty of driver to ascertain as to,
whether any passenger was boarding or alighting from bus—Conviction was held,
"proper.456. Prosecution case is that when deceased, a girl studying in the 8th standard",
"was about to board the offending bus driven by accused/ driver, he took the bus",
speedily and made her fall down whereby she sustained injuries and ultimately died.,
"Conviction of both the accused driver and conductor is held proper.457. In another case,",
one person had gone on the roof top of the bus and driver started the vehicle while he,
"was there and by falling from bus, passenger sustained injuries and succumbed in",
hospital. There was no evidence to show that the driver had knowledge that any,
passenger was on the rooftop of the bus. Supreme Court acquitted the accused.458.,
[s 304A.18] CASES.—Act not rash or negligent.—,
If the driver of a motor vehicle does not blow the horn because the prevailing traffic,
"rules prohibit him from doing so, it cannot be said that he has failed to exercise",
"reasonable and proper care, nor can it be said that duty to blow the horn was",
"imperative upon him, so as to hold him guilty of negligence under this section.459. If a",
"pedestrian suddenly crosses a road without taking note of an approaching bus, and,",
"thus, gets killed by dashing against the bus, the driver cannot be held responsible for",
any rash or negligent act.460. Where a bus driver finding a level crossing gate open at a,
"time when there was no train scheduled to pass, tried to cross the railway line and the",
rear portion of the bus collided with an oncoming goods train resulting in the death of,
"four passengers, the driver cannot be held responsible for an offence under this",
section.461. A bus with some corrugated sheets on the roof was being driven by the,
"accused. On the way, due to jolting, these sheets got loose and fell down on the heads",
"of passersby, one of which later died. The investigating officer did not care to seize",
either those sheets and even ascertain who the owner of the bus was who actually,
loaded those sheets without tying them properly. It was held that the bus driver could,
not be held liable under this section.462. The accused was driving a passenger bus at,
moderate speed along a narrow 12' road which had deep ditches on either side of the,
road. When the bus reached a place where a kaccha road bifurcated for a nearby,
"village, a girl of four years old suddenly ran across the road from left to right. The",
accused in order to save the girl swerved the bus to the right to the extent possible but,
still the left wheel hit the girl and she died on the spot. In setting aside his conviction,
"under this section, the Supreme Court held that it was a case of pure error of judgment",
"and not a rash or negligent act. It further held that the doctrine of res ipsa loquitur (i.e.,",
let thing speak for itself) had no application in a criminal case.463.,
Where the bus conductor whistled the bus to start only after he had seen each and,
"every passenger had got out of the bus, but a passenger was injured because he had",
"slipped and not because the bus suddenly started moving, the conductor was given the",
benefit of doubt.464. Where the charge that the driver started the bus without waiting,
for signal from the conductor and as a result a passenger who was still at the roof of,
"the bus for bringing down his luggage fell down to death, the Court was of the opinion",
"that because the conductor was not examined as a witness and without his evidence,",
"the case was nothing but a version of the prosecution and, therefore, the conviction of",
the driver was set aside.465. Accused who was trying to overtake other vehicles and in,
"that process took his vehicle completely on the wrong side of the road, giving a dash to",
"a scooterist resulting in his death. Conviction of appellant under section 304A of IPC,",
1860 was held proper.466.,
[s 304A.19] Accidents in Construction sites.,
"Where the Deceased, a labourer sustained injuries at construction site of petitioner",
"during the course of demolition of house and succumbed to his death, Evidence",
"showing that in spite of repeated warnings and caution notes, petitioner did not pay",
any heed and continued the work without care and caution which ought to have been,
exercised by a reasonable and a prudent person. The Delhi High Court confirmed the,
conviction under section 304A.467.,
[s 304A.20] Accidental fire from rifle.—,
Fire occurred from rifle of the accused when he was about to take metal powder kept,
under cot. Deceased sustained bleeding injuries on his head and fell down on the cot,
and the accused being unconscious was lying on his cot. Two versions were given by,
the witnesses. The High Court took the view favouring the acquittal.468.,
[s 304A.21] Death of caddie by player's stroke.—,
A golf-player missed the ball and instead struck the caddie to his death. Two other,
"caddies, who were not around, expressed the opinion that there was negligence in the",
stroke. This opinion was not accepted because neither they were experts nor they were,
around. The Court felt that the incident must have been due to accidental omission to,
"hit the ball. The charge under section 304A was not likely to succeed and, therefore, it",
was quashed.469.,
[s 304A.22] Death of child by slipping on school stairs.—,
A child slipped on school stairs and sustained head injury. He was taken to the school,
dispensary where the pharmacist applied ice and ointment and instructed that the child,
be taken home. The Court said it was the duty of the pharmacist to either make proper,
diagnosis or advice for medical check-up by an expert doctor. The child died. The head,
master or class teacher were held not liable for causing death by negligence.470.,
"Where a Maruti van carrying number of children was driven by accused/owner, lid of",
dicky was open and fire crackers were stored in dicky. Fire crackers stored in dicky,
caught fire resulting to death of children. It was held that the incident took place purely,
by accident. Accused were liable to be charged only under sections 304A and 435 of,
"IPC, 1860.471.",
[s 304A.23] Death of a child in swimming pool.—,
Complainant's son drowned in swimming pool and died due to negligent attitude of,
"owner, supervisor and observer of swimming pool. In the FIR, it was specifically",
mentioned that proposed accused is owner of Resorts. Accused was present in resort,
at time of admission of deceased boy and on date of incident too. Plea that the,
accused had already leased out the resort is of no consequence. High Court directed,
"the magistrate to proceed against accused under section 319, Cr PC, 1973.472. A boy",
entered into the swimming pool of a club surreptitiously and without notice of the,
chowkidar. He was lost in drowning. The secretary of the club and chowkidar were,
prosecuted under this section. It was alleged that the club had no caution board and no,
life-saving guard. The Court dismissed the case. If the entry of the boy could be due to,
"want of these precautions, only then there could have been a finding of negligence. The",
"negligence, if at all, was of civil nature.473. In another case, where death of deceased",
"boy was due to drowning in swimming pool, the evidence showed that the deceased",
boy himself had unauthorisedly and surreptitiously entered in pool which was meant,
for adult trained swimmers and drowned. There was no nexus between the death of,
boy with only rash and negligent act of accused. Accused acquitted.474.,
[s 304A.24] Distinction between sections 304 and 304A.—,
The Supreme Court stated as follows: There is distinction between sections 304 and,
304A. Section 304A deals with homicidal death by rash or negligent act. It does not,
create a new offence. It is directed against the offences outside the range of sections,
299 and 300 and covers those cases where death has been caused without intention or,
knowledge. Section 304A carves out cases where death is caused by doing a rash or,
negligent act which does not amount to culpable homicide not amounting to murder,
within the meaning of section 299 or culpable homicide amounting to murder under,
"section 300. In other words, section 304A excludes all the ingredients of section 299 as",
"also of section 300. Where intention or knowledge is the ""motivating force"" of the act",
"complained of, section 304A will have to make room for the graver and more serious",
charge of culpable homicide not amounting to murder or amounting to murder as the,
"facts disclose. The words ""not amounting to culpable homicide"" in section 304A are",
significant and clearly convey that the section seeks to embrace those cases where,
there is neither intention to cause death nor knowledge that the act done will in all,
probability result into death. It applies to acts which are rash or negligent and are,
"directly the cause of death of another person.475. Undoubtedly, ""rashness"" does contain",
"an element of knowledge. But a distinction has to be made between section 304, IPC,",
"1860, requiring knowledge, with regard to the consequences of the act and section",
"304A, IPC, 1860, ""rashness"", having an element of knowledge about the consequences,",
"but with the hope that the consequences would not follow. Furthermore, in order to",
"understand the distinction between sections 304 and 304A, IPC, 1860, it is pertinent to",
"note that while the former section deals with an act 'amounting to culpable homicide',",
the latter section deals with an act 'not amounting to culpable homicide'. Although,
"""rashness"" does contain an element of ""knowledge"", even then the case would not fall",
"within the ambit of section 304, IPC, 1860. For, in section 304, IPC, 1860, the knowledge",
is about the consequences as the consequences would naturally and obviously follow,
"from the nature of the act. But in ""rashness"", although there is a knowledge that the",
"consequences may follow or are likely to follow, the doer hopes that the consequences",
"would not follow. Thus, even if the element of knowledge is common in sections 304",
"and 304A, IPC, 1860, the extent and ambit of ""knowledge"" defers in its nature.",
"Therefore, the element of ""knowledge"" should not lead to any confusion between the",
"scope of section 304, IPC, 1860 and scope of section 304A, IPC, 1860.476. If a person",
wilfully drives a motor vehicle into the midst of a crowd and thereby causes death to,
"some person, it will not be a case of mere rash and negligent driving and the act will",
amount to culpable homicide. Doing an act with the intent to kill a person or knowledge,
that doing an act was likely to cause a person's death is culpable homicide. When,
"intent or knowledge is the direct motivating force of the act, section 304A, has to make",
room for the graver and more serious charge of culpable homicide.477.,
[s 304A.25] Bhopal Gas Tragedy Case.—,
"On the night of 2 December 1984, there was a massive escape of lethal gas from the",
MIC storage tank at the Bhopal plant of the Union Carbide (I) Ltd. (UCIL) into the,
"atmosphere causing the death of 5,295 people, leaving 5,68,292 people suffering from",
different kinds of injuries ranging from permanent total disablement to less serious,
"injuries. CBI filed the charge for offences under sections 304, 324, 326, 429 read with",
"section 35 of IPC, 1860. Additional Sessions Judge, Bhopal passed an order framing",
"charges against the accused Nos. 5–9 under sections 304 (Part II), 324, 326 and 429",
"of IPC, 1860 and against accused Nos. 2, 3, 4 and 12 under the very same sections but",
"with the aid of section 35 of IPC, 1860. But the Supreme Court in Keshub Mahindra v",
"State of MP.478. held that on the material led by the prosecution, appropriate charges",
which are required to be framed against the concerned accused are under section,
"304A, IPC, 1860 so far as the accused Nos. 5, 6, 7, 8 and 9 are concerned while so far",
"as accused Nos. 2, 6, 4 and 12 are concerned, charges under section 304A read with",
"section 35, IPC, 1860 will have to be framed. Ultimately on 7 June 2010, the CJM vide",
"his judgment convicted accused Nos. 2 to 5, 7 to 9 and 12 under sections 304A, 336,",
"337, 338 read with section 35, IPC, 1860 and sentenced them to two years'",
"imprisonment. On 29 June 2010, Criminal Appeal No. 369 of 2010 was filed by State of",
Madhya Pradesh before the Court of Sessions with a prayer for enhancement of,
"sentences under the existing charges. On the same day, the State of Madhya Pradesh",
also filed Criminal Revision Application No. 330 of 2010 before the Court of Sessions,
"under section 397, Cr PC, 1973, challenging the alleged failure of the CJM to enhance",
"the charges to section 304 (Part II) in exercise of his jurisdiction under section 216, Cr",
"PC, 1973, and to commit the trial of the case to Sessions under section 323, Cr PC,",
"1973 and inter alia praying for a direction to enhance charges and commit. Meanwhile,",
CBI filed a curative petition against judgment Keshub Mahindra v State of MP (supra),
"quashing of charges under sections 304, Part II, 324 and 429, IPC, 1860 and direction",
"to the trial Court to frame charges under section 304A, IPC, 1860. Dismissing the",
curative petition which was filed after 14 years of the judgment impugned held that if,
"according to the curative petitioner, the learned Magistrate failed to appreciate the",
correct legal position and misread the decision dated 13 September 1996 as tying his,
"hands from exercising the power under section 323 or under section 216 of the Code, it",
can certainly be corrected by the appellate/revisional Court.479.,
[s 304A.26] Three cases.—Death due to drunken driving.—offence under section 304A,
"or section 304, Part II.—",
"In State of Maharashtra v Salman Salim Khan,480. the allegation was that the accused",
"drove his car under the influence of alcohol, in a rash manner and caused the death of",
one person and caused grievous injuries to four others who happened to be sleeping,
"on the footpath. A few days later, the charge-sheet filed came to be modified based on",
"the additional statement of the complainant, and instead of section 304A, IPC, 1860,",
"section 304, Part II, IPC, 1860 was substituted. The Sessions Court framed charges",
"under section 304, Part II. The High Court quashed the order framing charge under",
"section 304, Part II, IPC, 1860 and directed the appropriate Magistrate's Court to frame",
de novo charges under various sections mentioned in the said impugned order of the,
"High Court including one under section 304A, IPC, 1860. In the appeal filed by the State,",
the Supreme Court held that neither of the sides would have been in any manner,
"prejudiced in the trial by framing of a charge either under section 304A or section 304,",
"Part II, IPC, 1860 except for the fact that the forum trying the charge might have been",
"different, which by itself, being open to the concerned Court to have altered the charge",
appropriately depending on the material that is brought before it in the form of,
evidence.,
[s 304A.27] BMW Case.—,
"The accused in an inebriated state, after consuming excessive alcohol, was driving the",
"vehicle without licence, in a rash and negligent manner in a high speed which resulted",
"in the death of six persons. Trial Court convicted the accused under section 304, Part II,",
but High Court altered the conviction to section 304A.The Supreme Court held that the,
accused had sufficient knowledge that his action was likely to cause death and such,
"action would, in the facts and circumstances of the case, fall under section 304, Part II,",
"IPC, 1860 and the trial Court has rightly held so.481.",
[s 304A.28] Alister Anthony Pareira's case.—,
"In Alister Anthony Pareira's case,482. in which seven persons were killed and injuries",
"were caused to eight persons, the Court held that the case falls under section 304, Part",
II and not under section 304A by holding that the person must be presumed to have,
had the knowledge that his act of driving the vehicle without a licence in a high speed,
after consuming liquor beyond the permissible limit is likely or sufficient in the ordinary,
course of nature to cause death of the pedestrians on the road.,
[s 304A.29] Uphaar Cinema Hall Tragedy.—,
Answering the question of whether the negligence of Ansal brothers—the occupiers of,
"the cinema was so gross so as to be culpable under section 304A, of IPC, 1860, the",
Supreme Court held that its answer to that question was in the affirmative. The reasons,
"were not far to seek. In the first place, the degree of care expected from an occupier of",
a place which is frequented everyday by hundreds and if not thousands is very high in,
comparison to any other place that is less frequented or more sparingly used for public,
functions. The higher the number of visitors to a place and the greater the frequency of,
"such visits, the higher would be the degree of care required to be observed for their",
safety. The duty is continuing which starts with every exhibition of cinematograph and,
continues till the patrons safely exit from the cinema complex. That the patrons are,
"admitted to the cinema for a price, makes them contractual invitees or visitors qua",
whom the duty to care is even higher than others. The need for high degree of care for,
the safety of the visitors to such public places offering entertainment is evident from,
"the fact that the Parliament has enacted the Cinematograph Act, 1952 and the",
"Cinematograph Rules, 1983, which cast specific obligations upon the",
owners/occupiers/licensees with a view to ensuring the safety of those frequenting,
such places.483.,
"The Supreme Court observed that in cases of negligence leading to public disaster,",
imposition of expiatory fine in addition to incarceration serve the penological purpose,
"of deterrence as also public purpose. Under section 304A of IPC, 1860, either",
"imprisonment only or with fine or fine alone, is the prescribed punishment. The",
punishment by both imprisonment and exemplary fine would be an appropriate,
punishment in a case like this. The licensee and the person actually running the Uphaar,
cinema are equally responsible for the tragedy. Taking note of the licensee's age-,
"related complications, sentence was reduced to the period already undergone, in case",
"he pays Rs. 30 crores. The court held that on principle of parity, the same benefit",
cannot be extended to the person actually running the cinema as he never had a case,
"of any age-related complications. Thus, his sentence of one-year imprisonment was",
maintained and he was also held liable to a fine of Rs. 30 crores.484.,
[s 304A.30] Sentencing.—,
"The Apex Court in the case of State of Karnataka v Krishna @ Raju,485. while dealing",
with the concept of adequate punishment in relation to an offence under section 304A,
"of the IPC, 1860, has held that considerations of undue sympathy in such cases will not",
only lead to miscarriage of justice but will also undermine the confidence of the public,
in the efficacy of the criminal justice dispensation system. If the accuseds are found,
"guilty of rash and negligent driving, Courts have to be on guard to ensure that they do",
not escape the clutches of law very lightly. The sentence imposed by the Courts should,
have deterrent effect on potential wrong-doers and it should be commensurate with the,
seriousness of the offence.486.,
The Supreme Court relied upon cases emphasising deterrent effect of punishment on,
lax and inattentive drivers. A seven-year-old child was killed due to rash and negligent,
driving. Simple imprisonment for six months plus one month and fine of Rs. 1000 plus,
Rs. 500 was held to be proper.487.,
[s 304A.31] New approach in Sentencing.—Community Service and Contribution to the,
relief fund for victims.—,
"In the BMW Case,488. the Supreme Court issued the following directions instead of",
enhancing the jail term (1) Accused has to pay an amount of Rs. 50 lakh to the Union of,
"India within six months, which will be utilised for providing compensation to the victim",
"of motor accidents, where the vehicle owner, driver etc. could not be traced, like victims",
"of hit and run cases. On default, he will have to undergo simple imprisonment for one",
year. This amount be kept in a different head to be used for the aforesaid purpose only.,
(2) The accused would do community service for two years which will be arranged by,
"the Ministry of Social Justice and Empowerment within two months. On default, he will",
have to undergo simple imprisonment for two years. But it was held that grant of,
compensation under section 357(3) with a direction that the same should be paid to,
person who has suffered any loss or injury by reason of the act for which the accused,
has been sentenced has a different contour and the same is not to be regarded as a,
substitute in all circumstances for adequate sentence.489.,
"[s 304A.32] Probation of Offenders Act, 1958, when to be extended.—",
Bearing in mind the galloping trend in road accidents in India and the devastating,
"consequences visiting the victims and their families, criminal Courts cannot treat the",
"nature of the offence under section 304A, IPC, 1860 as attracting the benevolent",
"provisions of section 4 of the Probation of Offenders Act, 1958. While considering the",
quantum of sentence to be imposed for the offence of causing death by rash or,
"negligent driving of automobiles, one of the prime considerations should be deterrence.",
"This is the role which the Courts can play, particularly at the level of trial Courts, for",
lessening the high rate of motor accidents due to callous driving of automobiles.490. It,
is settled law that sentencing must have a policy of correction. If anyone has to,
"become a good driver, he must have a better training in traffic laws and moral",
responsibility with special reference to the potential injury to human life and limb.,
"Considering the increased number of road accidents, the Court, on several occasions,",
has reminded the criminal Courts dealing with the offences relating to motor accidents,
"that they cannot treat the nature of the offence under section 304A, IPC, 1860 as",
"attracting the benevolent provisions of section 4 of the Probation of Offenders Act,",
1958.491.,
"383. Ins. by Act 27 of 1870, section 12.",
"384. State of Punjab v Balwinder Singh, 2012 (2) SCC 182 [LNIND 2012 SC 8] : AIR 2012 SC 861",
[LNIND 2012 SC 8] .,
"385. Malay Kumar Ganguly v Sukumar Mukherjee, (2009) 9 SCC 221 [LNIND 2009 SC 1647] : AIR",
2010 SC 1162 [LNIND 2009 SC 1647].,
"386. Kurban Hussain, (1964) 67 Bom LR 447 (SC).",
"387. Malay Kumar Ganguly v Sukumar Mukherjee, (2009) 9 SCC 221 [LNIND 2009 SC 1647] : AIR",
2010 SC 1162 [LNIND 2009 SC 1647] .,
"388. Sushil Ansal v State Through CBI, (2014) 6 SCC 173 [LNIND 2014 SC 527] .",
"389. Empress of India v Idu Beg, (1881) I LR 3 All 776.",
"390. Mahadev Prasad Kaushik v State of UP, (2008) 14 SCC 479 [LNIND 2008 SC 2043] : AIR",
2009 SC 125 [LNIND 2008 SC 2043] : (2009) 1 All LJ 96.,
"391. Abdul Kalam Musalman v State of Rajasthan, 2011 Cr LJ 2507 (Raj); Prabhakaran v State of",
"Kerala, (2007) 14 SCC 269 [LNIND 2007 SC 824] : AIR 2007 SC 2376 [LNIND 2007 SC 824] .",
"392. PB Desai (Dr) v State of Maharashtra, 2013 (11) Scale 429 [LNIND 2013 SC 815] .",
"393. Sushil Ansal v State through CBI, (2014) 6 SCC 173 [LNIND 2014 SC 527] .",
"394. Nidamarti Nagabhushanam, (1872) 7 Mad HCR 119 , 120; Smith v State, (1925) 53 Cal 333 ;",
"Rangaswamy, (1952) Nag 93.",
"395. Gaya Prasad, (1928) 51 All 465 .",
"396. Captain D'Souza v Pashupati Nath Sarkar, 1968 Cr LJ 405 . Raj Karan Singh v State of UP,",
"2000 Cr LJ 555 (All), the gun of a police constable went off while he was loading it and killed a",
"person, trigger went off because of positive act of moving belt of the gun. His failure to keep the",
safety catch in back position was an illegal omission within the meaning of section 22,
"conviction. Sita Ram v State of Rajasthan, 1998 Cr LJ 287 (Raj), the accused labourer was",
"digging earth by spade, another worker was taking away the soil and was hit by the spade in",
that process to his death. Criminal negligence. Sentence imposed on him was reduced to the,
period already undergone.,
"397. Omkar, (1902) 4 Bom LR 679 , followed in Akbar Ali, (1936) 12 Luck 336 ; Chinubhai",
"Haridas, (1959) 61 Bom LR 1309 . Jaunath Sahu v Sasibhusan Rath, 1995 Cr LJ 4070 (Ori).",
"398. Kurban Hussein, (1965) 2 SCR 622 [LNIND 1964 SC 355] : 67 Bom LR 447; See also AD",
"Bhatt, 1972 Cr LJ 727 (SC).",
"399. Khanmahomed, (1936) 38 Bom LR 1111 .",
"400. Akbar Ali v State, (1936) 12 Luck 336 .",
"401. Tukaram Sitaram, (1970) 72 Bom LR 492 .",
"402. Finney, (1874) 12 Cox 625; Sat Narain Pandey, (1932) 55 All 263 . For an example of",
"unconscionably lenient sentence, i.e., for two months only of simple imprisonment for causing",
"death by rash and negligent driving, see State of Karnataka v Krishna, (1987) 1 SCC 538 [LNIND",
"1987 SC 701] : AIR 1987 SC 861 [LNIND 1987 SC 701] : 1987 Cr LJ 776 , the Supreme Court",
"increased it to six months' RI. Indramani Jena v State of Orissa, 1992 Cr LJ 72 (Ori), rash and",
"negligent driving of a bullock cart, an old man killed by a young man of 30, jail term knocked out,",
"only fine of Rs. 5,000 imposed. Madhab Bagh v State of Orissa, 1992 Cr LJ 116 , speed of the",
vehicle is not always an important consideration.,
"403. Shivder Singh v State, (1995) 2 Cr LJ 2142 (Del), sentence of one year was reduced to that",
"already undergone in view of the fact that the occurrence was 23 years old, a fine of Rs. 5000.",
"404. Kaliaperumal v State of TN, 1996 Cr LJ 3658 (Mad).",
"405. Abdul Ise Suleman v State of Gujarat, (1995) 1 Cr LJ 464 (SC).",
"406. Idu Beg v State, (1881) 3 All 776 , 778, 779. Shankar Narayan Bhadolkar v State of",
"Maharashtra, AIR 2004 SC 1966 [LNIND 2004 SC 1370] : 2004 Cr LJ 1778 , no knowledge or",
"intention should be there, in this case a gun was unlocked, loaded and fired to cause death from",
"close range, intention or knowledge could not be denied, section not attracted.",
"407. Ravi Kapur v State of Rajasthan, 2012 AIR SCW 4659 : AIR 2012 SC 2986 [LNIND 2012 SC",
"474] ; relied in Shivappa v State, 2013 Cr LJ 1680 (Kant).",
"408. Swindall, (1846) 2 C & K 230.",
"409. Kalaji v State of Gujarat, 1992 Cr LJ 2397 (Guj).",
"410. Sushil Ansal v State through CBI, (2014) 6 SCC 173 [LNIND 2014 SC 527]",
"411. PB Desai (Dr) v State of Maharashtra, 2013 (11) Scale 429 [LNIND 2013 SC 815] .",
"412. Ravi Kapur v State of Rajasthan, AIR 2012 SC 2986 [LNIND 2012 SC 474] : (2012) 9 SCC",
"284 [LNIND 2012 SC 474] : 2012 Cr LJ 4403 ; Syed Akbar v State of Karnataka, 1980 SCC (Cr) 59 :",
"AIR 1979 SC 1848 [LNIND 1979 SC 297] ; B Nagabhushanam v State of Karnataka, 2008 (5) SCC",
730 [LNIND 2008 SC 1172] : AIR 2008 SC 2557 [LNIND 2008 SC 1172] .,
"413. Rattan Singh v State of Punjab,1980 SCC (Cr) 17 : AIR 1980 SC 84 [LNIND 1979 SC 388] .",
"414. Mohd Aynuddin @ Miyam v State of AP, 2000 (7) SCC 72 [LNIND 2000 SC 1014] : AIR 2000",
SC 2511 [LNIND 2000 SC 1014] : 2000 SCC (Cr) 1281 : 2000 Cr LJ 3508 .,
"415. Jacob Mathew v State of Punjab, 2005 AIR SCW 3685 : AIR 2005 SC 3180 [LNIND 2005 SC",
587] .,
"416. Francis Xavier Rodriguez v State of Maharashtra, 1997 Cr LJ 1374 (Bom). The plea of",
compassion was not taken before the lower court. Confining punishment to fine only was not,
"accepted. Dwarka Das v State of Rajasthan, 1997 Cr LJ 4601 (Raj), bus driven in a wavering",
"manner and at high speed killing a person, the case being 16 years old, fine was enhanced",
instead of maintaining the sentence of imprisonment.,
"417. Thakur Singh v State of Punjab, 2003 (9) SCC 208 .",
"418. Shivappa v State, 2013 Cr LJ 1680 (Kant).",
"419. State of MP v Jagdish, 1992 Cr LJ 746 (MP). Rajpal v State, 1992 Cr LJ 1470 (Del), wrong",
"side, high speed, ramming into autorickshaw claiming two lives and injuring a third, convicted, it",
was immaterial that he would be losing his service.,
"420. Mohammed Aynuddin v State of AP, AIR 2002 SC 2511 at p 2512 : 2000 Cr LJ 3508 .",
"421. Keshavamurthy v State of Karnataka, 2002 Cr LJ 103 (Kant), the court also said that the",
report of the motor vehicle inspector is no evidence unless he is examined. Suyambhu v State of,
"TN, 2001 Cr LJ 1577 (Mad), high speed bus, driver losing control, hitting a jeep and killing all the",
"passengers in it, res ipsa loquitor applied to hold the bus driver liable. Chunnilal v State of",
"Rajasthan, 2000 Cr LJ 2499 (Raj), rash driving, accident, persons in the truck, some killed, some",
"injured, no probation, one year RI & Rs. 250 fine. Manjit Singh v State, 1997 Cr LJ 331 (P&H),",
"truck hitting rickshaw from behind, conviction.",
"422. Guru Basavaraj v State of Karnataka, 2012 Cr LJ 4474 : JT 2012 (8) SC 246 [LNIND 2012 SC",
1561] : 2012 (8) Scale 47 [LNIND 2012 SC 1561] : 2012 AIR (SCW) 4822 : (2012) 8 SCC 734,
"[LNIND 2012 SC 1561] . See also Haradhan Gope v State of Tripura, 2012 Cr LJ 3232 (Gau); State",
"of HP v Manohar Singh, 2011 Cr LJ 3402 (HP).",
"423. Binoda Bihari Sharma v State of Orissa, 2011 Cr LJ 1989 (Ori).",
"424. Pradeep Kumar v State of Haryana, 2000 Cr LJ 2394 (P&H). K Srinivas v State of Karnataka,",
"2002 Cr LJ 3865 (Kant), bus involved in accident, evidence was inconsistent. The court said that",
the speed of the bus could not be the sole factor for attribution of rashness or negligence.,
"425. Ravi Kapur v State of Rajasthan, 2012 AIR SCW 4659 : AIR 2012 SC 2986 [LNIND 2012 SC",
474] .,
"426. State v Parmodh Singh, 2009 Cr LJ (NOC) 277 .",
"427. Mehnga Singh v State, 2012 Cr LJ 4930 (Del).",
"428. Kewal Singh v State of Punjab, 2011 Cr LJ 3004 (P&H).",
"429. Sanjay Rambhau Patil v State of Maharashtra, 2010 Cr LJ 1407 (Bom).",
"430. PB Desai (Dr) v State of Maharashtra, 2013 (11) Scale 429 [LNIND 2013 SC 815] .",
"431. See also Kusum Sharma v Batra Hospital and Medical Research Centre, (2010) 3 SCC 480",
"[LNIND 2010 SC 164] ; Suresh Gupta (Dr) v Govt of NCT of Delhi, (2004) 6 SCC 422 [LNIND 2004",
SC 744] : AIR 2004 SC 4091 [LNIND 2004 SC 744] .,
"432. Bolam v Friern Hospital Management Committee, (1957) 1 WLR 582 .",
"433. Shivanand Doddamani (Dr) v State of Karnataka, 2011 Cr LJ 230 (Kant).",
"434. Jacob Mathew v State of Punjab, 2005 AIR SCW 3685 : AIR 2005 SC 3180 [LNIND 2005 SC",
587] .,
"435. Suresh Gupta (Dr) v Govt of NCT of Delhi, (2004) 6 SCC 422 [LNIND 2004 SC 744] : AIR 2004",
SC 4091 [LNIND 2004 SC 744] .,
"436. Kusum Sharma v Batra Hospital and Medical Research Centre, (2010) 3 SCC 480 [LNIND",
2010 SC 164] .,
"437. Suresh Gupta (Dr) v Govt of NCT of Delhi, (2004) 6 SCC 422 [LNIND 2004 SC 744] : AIR 2004",
SC 4091 [LNIND 2004 SC 744] .,
"438. Jacob Mathew v State of Punjab, (2005) 6 SCC 1 [LNIND 2005 SC 587] : AIR 2005 SC 3180",
"[LNIND 2005 SC 587] ; ASV Narayanan Rao v Ratnamala, 2013 (4) Mad LJ (Cr) 67 : 2013 (11)",
Scale 390 [LNINDORD 2013 SC 19863] .,
"439. Jacob Mathew v State of Punjab, (2005) 6 SCC 1 [LNIND 2005 SC 587] : AIR 2005 SC 3180",
"[LNIND 2005 SC 587] ; ASV Narayanan Rao v Ratnamala, 2013 (4) Mad LJ (Cr) 67 : 2013 (11)",
Scale 390 [LNINDORD 2013 SC 19863] .,
"440. Sudesh v State of UP, 2012 Cr LJ 1460 (All).",
"441. Nizam's Institute of Medical Sciences v Prasanth S Dhananka, (2009) 6 SCC 1 [LNIND 2009",
SC 1292] : 2009 Cr LJ 3012 .,
"442. Malay Kumar Ganguly v Sukumar Mukherjee, (2009) 9 SCC 221 [LNIND 2009 SC 1647] : AIR",
2010 SC 1162 [LNIND 2009 SC 1647] .,
"443. Bolam v Friern Hospital Management Committee, (1957) 1 WLR 582 , 586.",
"444. Jacob Mathew v State of Punjab, (2005) 6 SCC 1 [LNIND 2005 SC 587] : AIR 2005 SC 3180",
[LNIND 2005 SC 587] .,
"445. PB Desai (Dr) v State of Maharashtra, 2013 (11) Scale 429 [LNIND 2013 SC 815] .",
"446. Lakshmanan Prakash (Dr) v State of TN, 1999 Cr LJ 2348 (Mad).",
"447. Ram Niwas v State of UP, 1998 Cr LJ 615 (All).",
"448. Martin F D'Souza v Mohd Ishfaq, (2009) 3 SCC 1 [LNIND 2009 SC 375] : AIR 2009 SC 2049",
[LNIND 2009 SC 375] : (2009) 3 All LJ 165 : (2009) 1 CPJ 32 [LNIND 2009 SC 375] . The court,
"cited the concept of gross negligence as stated in Jacob Mathew case, (2005) 6 SCC 1 [LNIND",
2005 SC 587] : AIR 2005 SC 3180 [LNIND 2005 SC 587] .,
"449. Kusum Sharma v Batra Hospital and Medical Research Centre, (2010) 3 SCC 480 [LNIND",
2010 SC 164] .,
"450. Pravat Kumar Mukherjee v Ruby General Hospital, II 2005 CPJ 35 (NC).",
"451. ASV Narayanan Rao v Ratnamala, 2013 (4) MLJ (Cr) 67 : 2013 (11) Scale 390 [LNINDORD",
2013 SC 19863] . Other cases relating to medical negligence—Marwari Maternity Hospital v,
"Praveen Jain, 2013 Cr LJ 307 (Gau); M K Rai (Dr) v State of Chhattisgarh, 2012 Cr LJ 4384 (Chh);",
"Saroja Dharmapal Patil v State of Maharashtra, 2011 Cr LJ 1060 (Bom); A R Srivastava (Dr) v State",
"of Jharkhand, 2010 Cr LJ 1539 (Jha); Dashavatar Gopalkrishna Bade v State of Maharashtra, 2010",
Cr LJ 4056 (Bom).,
"452. Spring Meadows Hospital v Harjol Ahluwalia, 1998 (4) SCC 39 [LNIND 1998 SC 357] : AIR",
1998 SC 1801 [LNIND 1998 SC 357] .,
"453. V Marie v State of AP, 2011 Cr LJ 3985 (AP).",
"454. Juggankhan, AIR 1965 SC 831 [LNIND 1964 SC 195] .",
"455. Mohammed Aynuddin @ Miyam v State of AP, (2000) 7 SCC 72 [LNIND 2000 SC 1014] : AIR",
2000 SC 2511 [LNIND 2000 SC 1014] .,
"456. Ram Asra v State of HP, 2011 Cr LJ 1038 (HP).",
"457. Rajaram v State, 2010 Cr LJ 1644 (Mad).",
"458. Braham Dass v State of HP, AIR 2009 SC 3181 [LNIND 2009 SC 1130] : (2009) 7 SCC 353",
[LNIND 2009 SC 1130] .,
"459. Tukaram Sitaram, (1970) 72 Bom LR 492 .",
"460. MH Lokre, 1972 Cr LJ 49 : AIR 1972 SC 214 [LNIND 1971 SC 662] . State of Rajasthan v",
"Jolta, 2002 Cr LJ 3514 (Raj), a person sitting on the mudguard of a tractor fell off to death,",
persons sitting on trolley did not speak of negligence on driver's part. Acquittal.,
"461. SN Hussain, 1972 Cr LJ 496 : AIR 1972 SC 700 . See also Renu Kunta Mallaiah v State of AP,",
AIR 2009 SC 133 [LNIND 2008 SC 2037] : (2008) 10 SCC 220 [LNIND 2008 SC 2037] .,
"462. Baijnath Singh, 1972 Cr LJ 919 : AIR 1972 SC 1485 .",
"463. Syed Akbar, 1979 Cr LJ 1374 : AIR 1979 SC 1848 [LNIND 1979 SC 297] . Trial on a charge",
of rash and negligent driving was held to be vitiated by delay of 9½ years in taking cognizance.,
"Srinivas Pal v UT Arunachal Pradesh, 1988 Cr LJ 1803 : AIR 1988 SC 1729 [LNIND 1988 SC 327] ,",
reversing (1988) 1 Crimes 383 [LNIND 1987 GAU 49] (Gau).,
"464. Altyarkunju & Shahajahan v State of Kerala, 2002 Cr LJ 1981 (Ker). State of Karnataka v",
"Sharanappa Basnagouda, AIR 2002 SC 1529 [LNIND 2002 SC 234] : 2002 Cr LJ 2020 , no",
interference in the matter of punishment awarded by the revisional court. The accused was,
sentenced to undergo simple imprisonment for six months for offence under section 304A,
"(dashing against car by mini-lorry). Niranjan Singh v State, 1997 Cr LJ 336 (Del), a bus passenger",
"fell to death but cause of fall, could not be proved, driver acquitted. Sudalaimuthu v State of TN,",
"1997 Cr LJ 1038 (Mad), there must be direct nexus between death and rash and negligent act. A",
passenger died because he tried to get down after conductor's whistle and the driver's starting,
of the bus. Negligence not proved.,
"465. Braham Das v State of HP, (2009) 7 SCC 353 [LNIND 2009 SC 1130] : (2009) 3 SCC (Cr) 406",
": (2009) 81 AIC 265 . State of Haryana v Sher Singh, (2008) 15 SCC 571 [LNIND 2008 SC 2028] :",
"AIR 2009 SC 823 [LNIND 2008 SC 2028] , another case of failure of evidence, dying declaration",
"of a passenger did not talk of driver's negligence, nor was there any proof who the driver was.",
"466. Zamir Khan v State, 2011 Cr LJ 4044 (Bom).",
"467. Ram Karan v State (Delhi Admn), 2010 Cr LJ 966 (Del). See also Kumar v State of Kerala,",
"2012 Cr LJ 3193 (Ker); Geetha Ramesh v Sub-Inspector of Police, Udagamandalam, 2010 Cr LJ",
762 (Mad).,
"468. Krushna Mohan Samal v State of Orissa, 2012 Cr LJ 180 (Ori).",
"469. M Shafi Goroo v State, 2000 Cr LJ 2172 (Del).",
"470. Ramesh Chandra Mohapatra v State of Orissa, 2002 Cr LJ 3453 (Ori).",
"471. Suresh Narvekar v State of Goa, 2010 Cr LJ 2007 (Bom).",
"472. Kolishetty Venkateswarlu v Bandaru Venkat Reddy, 2010 Cr LJ 712 (AP).",
"473. BP Ram v State of MP, 1991 Cr LJ 473 , considering Suleman Rahiman v State of",
"Maharashtra, AIR 1968 SC 829 [LNIND 1967 SC 354] : 1968 Cr LJ 1013 . Joseph v State of Kerala,",
1990 Cr LJ 56 (Ker). There was the allegation that the accused carried excess passengers than,
capacity in his boat. The boat capsized and some passengers were lost. There was no proof,
that the accused was present in the boat at the time of sailing or that mere overloading was the,
cause of capsization. Mere negligence not sufficient for conviction.,
"474. State of Maharashtra v Dhananjay Laxmanrao Bhagat, 2010 Cr LJ 1987 (Bom).",
"475. Mahadev Prasad Kaushik v State of UP, (2008) 14 SCC 479 [LNIND 2008 SC 2043] : AIR",
"2009 SC 125 [LNIND 2008 SC 2043] . See also Madhusudan v State of Karnataka, 2011 Cr LJ 215",
(Kant) for difference between sections 304 and 304A.,
"476. Abdul Kalam Musalman v State of Rajasthan, 2011 Cr LJ 2507 (Raj); Prabhakaran v State of",
"Kerala, JT 2007 (9) SC 346 [LNIND 2007 SC 824] : AIR 2007 SC 2376 [LNIND 2007 SC 824] .",
"477. Naresh Giri v State of MP, (2008) 1 SCC 791 [LNIND 2007 SC 1313] : 2007 (13) Scale 7",
[LNIND 2007 SC 1313] .,
"478. Keshub Mahindra v State of MP, (1996) 6 SCC 129 [LNIND 1996 SC 2462] : 1999 SCC (Cr)",
1124.,
"479. CBI v Keshub Mahindra, (2011) 6 SCC 216 [LNIND 2011 SC 514] : AIR 2011 SC 2037",
[LNINDORD 2011 SC 209] .,
"480. State of Maharashtra v Salman Salim Khan, AIR 2004 SC 1189 [LNIND 2003 SC 1122] :",
"(2004) 1 SCC 525 [LNIND 2003 SC 1122] ,",
"481. State Tr PS Lodhi Colony New Delhi v Sanjeev Nanda, (2012) 8 SCC 450 [LNIND 2012 SC",
459] : 2012 Cr LJ 4174 : AIR 2012 SC 3104 [LNIND 2012 SC 459] .,
"482. Alister Anthony Pareira's case, 2012 CLJ 1160 (SC) : (2012) 2 SCC 648 [LNIND 2012 SC 15]",
: AIR 2012 SC 3802 [LNIND 2012 SC 15] .,
"483. Sushil Ansal v State through CBI, (2014) 6 SCC 173 [LNIND 2014 SC 527] .",
"484. Association of Victims of Uphaar Tragedy v Sushil Ansal, AIR 2017 SC 976 .",
"485. State of Karnataka v Krishna @ Raju, 1987 (1) SCC 538 [LNIND 1987 SC 701] : AIR 1987 SC",
861 [LNIND 1987 SC 701] .,
"486. State of Karnataka v Sharanappa Basanagouda Aregoudar, 2002 (3) SCC 738 [LNIND 2002",
SC 234] : AIR 2002 SC 1529 [LNIND 2002 SC 234] .,
"487. B Nagabhushanam v State of Karnataka, (2008) 5 SCC 730 [LNIND 2008 SC 1172] : AIR",
2008 SC 2557 [LNIND 2008 SC 1172] .,
"488. State Tr PS Lodhi Colony New Delhi v Sanjeev Nanda, (2012) 8 SCC 450 [LNIND 2012 SC",
459] : 2012 Cr LJ 4174 : AIR 2012 SC 3104 [LNIND 2012 SC 459] .,
"489. Guru Basavaraj v State of Karnataka, (2012) 8 SCC 734 [LNIND 2012 SC 1561] : 2012 Cr LJ",
4474 .,
"490. B Nagabhushanam v State of Karnataka, 2008 (5) SCC 730 [LNIND 2008 SC 1172] : AIR",
"2008 SC 2557 [LNIND 2008 SC 1172] ; Dalbir Singh v State of Haryana, (2000) 5 SCC 82 [LNIND",
2000 SC 810] .,
"491. State of Punjab v Balwinder Singh, 2012 (2) SCC 182 [LNIND 2012 SC 8] : AIR 2012 SC 86",
"[LNIND 2011 SC 1146] ; Sanjay Rambhau Patil v State of Maharashtra, 2010 Cr LJ 1407 (Bom);",
"Zamir Khan v State, 2011 Cr LJ 4044 (Bom).",
THE INDIAN PENAL CODE,
CHAPTER XVI OF OFFENCES AFFECTING THE HUMAN BODY OF,
OFFENCES AFFECTING LIFE,
492.[[s 304B] Dowry death.,
(1) Where the death of a woman is caused by any burns or bodily injury or occurs,
otherwise than under normal circumstances within seven years of her marriage,
and it is shown that soon before her death she was subjected to cruelty or,
"harassment by her husband or any relative of her husband for, or in connection",
"with, any demand for dowry, such death shall be called ""dowry death"", and such",
husband or relative shall be deemed to have caused her death.,
"Explanation.—For the purpose of this sub-section, ""dowry"" shall have the same",
"meaning as in section 2 of the Dowry Prohibition Act, 1961 (28 of 1961).",
(2) Whoever commits dowry death shall be punished with imprisonment for a term,
which shall not be less than seven years but which may extend to,
imprisonment for life.],
COMMENT.—,
"The above provision was inserted by Dowry Prohibition (Amendment) Act 1986, (Act 43",
of 1986) and came into force with effect from 19 November 1986. The necessity for,
insertion of the provisions has been amply analysed by the Law Commission of India in,
its 21st Report dated 10 August 1988 on 'Dowry Deaths and Law Reform.' Keeping in,
view the impediment in the pre-existing law in securing evidence to prove dowry-related,
"deaths, legislature thought it's wise to insert a provision relating to presumption of",
"dowry death (section 113B, Evidence Act, 1872) on proof of certain essentials.493.",
[s 304B.1] Object.—,
"Both section 304B, IPC, 1860 and section 113B, Evidence Act, 1872, were inserted by",
"the Dowry Prohibition (Amendment) Act, 1986, for combating the menace of dowry",
killings. The attempt was to encounter difficulties of proof by creating a,
presumption.494.,
[s 304B.2] Ingredients.—,
"The Supreme Court took occasion in Shanti v State of Haryana, AIR 1991 SC 1226",
"[LNIND 1990 SC 696] : 1991 Cr LJ 1713 ,495.,496. to explain the ingredients of section",
"304B. K Jayachandra Reddy, J, said;497.",
A careful analysis of s. 304B shows that this section has the following essentials : (1) The,
death of a woman should be caused by burns or bodily injury or otherwise than under,
normal circumstances;498. (2) Such death should have occurred within seven years of her,
marriage;499. (3) She must have been subjected to cruelty or harassment by her husband or,
any relative of her husband soon before her death; (4) Such cruelty or harassment should be,
for or in connection with demand for dowry.500. This section will apply whenever the,
occurrence of death is preceded by cruelty or harassment by husband or in - laws for dowry,
and death occurs in unnatural circumstances. The intention behind the section is to fasten,
guilt on the husband or in - laws though they did not in fact caused the death.501.,
"To establish the offence of dowry death under section 304B, IPC, 1860, the prosecution",
has to prove beyond reasonable doubt that the husband or his relative had subjected,
the deceased to cruelty or harassment in connection with demand of dowry soon,
before her death.502.,
[s 304B.3] Dowry—meaning of.—,
"For the purposes of the section, ""dowry"" shall have the same meaning as in section 2 of",
"the Dowry Prohibition Act, 1961. ""Dowry"" means any property or valuable security given",
or agreed to be given either directly or indirectly– (a) by one party to a marriage to the,
other party to the marriage; or (b) by the parent of either party to a marriage or by any,
"other person, to either party to the marriage or to any other person, at or before 503.[or any",
"time after the marriage] 504.[in connection with the marriage of the said parties, but does",
not include] dower or mahr in the case of persons to whom the Muslim Personal Law,
"(Shariat) applies.505. From the above definition it is clear that, 'dowry' means any",
property or valuable security given or agreed to be given either directly or indirectly by,
"one party to another, by parents of either party to each other or any other person at,",
"before, or at any time after the marriage and in connection with the marriage of the",
said parties but does not include dower or mahr under the Muslim Personal Law,
"(Shariat) Application Act, 1937. All the expressions used under this section are of a",
very wide magnitude. The expressions 'or any time after marriage' and 'in connection,
with the marriage of the said parties' were introduced by amending Dowry Prohibition,
"(Amendment) Act 1984, (Act 63 of 1984) and Dowry Prohibition (Amendment) Act",
"1986, (Act 43 of 1986) with effect from 2 October 1985 and 19 November 1986,",
respectively. These amendments appear to have been made with the intention to cover,
"all demands at the time, before and even after the marriage so far they were in",
connection with the marriage of the said parties. This clearly shows the intent of the,
legislature that these expressions are of wide meaning and scope. The expression 'in,
connection with the marriage' cannot be given a restricted or a narrower meaning. The,
expression 'in connection with the marriage' even in common parlance and in its plain,
language has to be understood generally. The object being that everything which is,
"offending at any time, i.e. at, before or after the marriage, would be covered under this",
"definition, but the demand of dowry has to be 'in connection with the marriage' and not",
"so customary that it would not attract, on the face of it, the provisions of this",
"section.506. The payments which are customary payments, for example, given at the",
time of birth of a child or other ceremonies as are prevalent in the society or families to,
"the marriage, would not be covered under the expression 'dowry'.507. Furnishing of a",
"list of ornaments and other household articles, such as refrigerator, furniture and",
"electrical appliances etc., to the parents or guardians of the bride, at the time of",
"settlement of the marriage, prima facie amounts to demand of dowry within the",
meaning of section 2 of the Act.508. The definition of 'dowry' is not restricted to,
agreement or demand for payment of dowry before and at the time of marriage but,
even include subsequent demands.509. It is not necessary for the purposes of the,
offence under the section to show that there was an agreement for payment of,
dowry.510.,
The in-laws of the deceased woman could not be roped in only because they were,
close relatives. The overt-acts which are attributed to them would require to be proved,
beyond reasonable doubt.511.,
"[s 304B.4] ""Husband""—meaning of.—",
It would be appropriate to construe the expression 'husband' to cover a person who,
enters into marital relationship and under the colour of such proclaimed or feigned,
status of husband and subjects the woman concerned to cruelty or coerces her in any,
manner or for any of the purposes enumerated in the relevant provisions–sections,
"304B/498A, whatever be the legitimacy of the marriage itself for the limited purpose of",
"sections 498A and 304B, IPC, 1860. Such an interpretation, known and recognised as",
purposive construction has to come into play in a case of this nature. The absence of a,
definition of 'husband' to specifically include such persons who enter into contract,
"marriages ostensibly and cohabitate with such woman, in the purported exercise of his",
role and status as 'husband' is no ground to exclude them from the purview of sections,
"304B or 498A, IPC, 1860, viewed in the context of the very object and aim of the",
legislations introducing those provisions.512.,
[s 304B.5] Relative of the husband.—,
"The word ""relative of the husband"" in section 304B of IPC, 1860 would mean such",
"persons, who are related by blood, marriage or adoption. The brother of the aunt of the",
husband is not a relative.513.,
"[s 304B.6] ""Soon before death"".—",
"To attract the provisions of section 304B, IPC, 1860, one of the main ingredients of the",
"offence which is required to be established is that ""soon before her death"" she was",
"subjected to cruelty and harassment ""in connection with the demand for dowry"".514.",
"The provision does not employ the term ""at any time before"" or ""immediately before""",
"and must be construed according to its true import.515. The expression ""soon before",
"her death"" cannot be given a restricted or a narrower meaning. They must be",
understood in their plain language and with reference to their meaning in common,
"parlance. These are the provisions relating to human behaviour and, therefore, cannot",
"be given such a narrower meaning, which would defeat the very purpose of the",
"provisions of the Act. Of course, these are penal provisions and must receive strict",
"construction. But, even the rule of strict construction requires that the provisions have",
"to be read in conjunction with other relevant provisions and scheme of the Act. Further,",
the interpretation given should be one which would avoid absurd results on the one,
hand and would further the object and cause of the law so enacted on the other.516.,
The legislative object in providing such a radius of time by employing the words 'soon,
"before her death' is to emphasise the idea that her death should, in all probabilities,",
"have been the aftermath of such cruelty or harassment. In other words, there should be",
"a reasonable, if not direct, nexus between her death and the dowry-related cruelty or",
harassment inflicted on her.517. There was a demand of Maruti Car being pressed by,
the two accused persons after about six months of the marriage of the deceased,
"(which took place about three years before the incident) and of her being pestered,",
"nagged, tortured and maltreated on non-fulfilment of the said demand which was",
conveyed by her to her parents from time to time on her visits to her parental home and,
on telephone. She might have thought that things would improve with the passage of,
"time, but it seemed that that did not happen. It, however, cannot be taken to mean that",
the demand made by the two accused persons had subsided or was given up by them.,
"The test of 'soon before' was held satisfied in the facts, evidence and circumstances of",
the present case.518. Evidence that the deceased told her mother one month prior to,
"her unnatural death, that the accused husband used to subject her to cruelty, was held",
to be not within the four corners of time frame.519. Where the death occurred after five,
"days of the demand of dowry, it was considered to be soon before death.520.",
"The expression ""soon before"" is a relative term. It has to be construed in the context of",
specific circumstances of each case. No hard and fast rule of a universal application,
can be laid down by prescribing a time-limit.521. These words are to be understood in a,
relative and flexible sense. There can be no fixed period of time in this regard.522. If the,
"incident alleged of cruelty is remote in time and has become ineffective, so as not to",
"disturb the mental equilibrium of the victim concerned, it would be of no",
consequence.523.,
Where the death was due to electrocution and there is evidence that the victim was,
"subjected to cruelty demanding a motor bike, it was held that the harassment made",
15–20 days before her death was considered to be soon before her death.524. Cruelty,
"caused to her (the deceased) on any day from the date of her marriage, i.e., 20 April",
"1994 till the date of her death, i.e., 22 July 1994 could be cruelty caused 'soon before'",
her death.525.,
[s 304B.7] Proximity Test.—,
"The expression ""soon before her death"" used in section 304B, IPC, 1860 and section",
"113B of the Evidence Act, 1872 is present with the idea of proximity test. Though the",
"language used is ""soon before her death"", no definite period has been enacted and the",
"expression ""soon before her death"" has not been defined in both the enactments.",
"Accordingly, the determination of the period which can come within the term ""soon",
"before her death"" is to be determined by the Courts, depending upon the facts and",
"circumstances of each case. However, the said expression would normally imply that",
the interval should not be much between the concerned cruelty or harassment and the,
"death in question. In other words, there must be existence of a proximate and live link",
between the effect of cruelty based on dowry demand and the concerned death. If the,
alleged incident of cruelty is remote in time and has become stale enough not to,
"disturb the mental equilibrium of the woman concerned, it would be of no",
consequence.526. The section was not attracted where there had been no harassment,
for about 15 months prior to the occurrence.527. Where the wife was persistently,
subjected to cruelty and harassment by the husband and other in-laws for gold,
"ornaments and the last such torture was practiced 15 days before the occurrence, the",
"Court said that the requirement of ""soon before"" was very well satisfied.528. The import",
of this expression was examined by the Orissa High Court529. in a case in which there,
was a history of beating the wife up for dowry. But the couple reconciled and resumed,
joint life. The wife joined her husband after a long stay with her parents. The husband,
left her back with her parents and after a fortnight took her away. Within two days,
"thereafter her parents were informed of her death. During the fortnight, she had not",
made any complaint to her parents about dowry or torture. The Court held that the,
section was not attracted because there was no cruelty or harassment soon before her,
"death. The Court compared section 304B with section 113B of the Evidence Act, 1872",
"where also the words ""soon before"" occur and said:530. A conjoint reading of section",
"113B of the Act and section 304B, IPC, 1860 shows that there must be material to",
show that soon before her death the victim was subjected to cruelty or harassment.,
Prosecution has to rule out the possibility of a natural or accidental death so as to,
"bring it within the purview of the ""death occurring otherwise than in normal",
"circumstances."" The determination of the period which can come within the term ""soon",
"before"" is left to be determined by the Courts, depending upon facts and circumstances",
"of each case. Suffice, however, to indicate that the expression ""soon before"" would",
normally imply that the interval should not be much between the concerned cruelty or,
harassment and the death in question. There must be existence of a proximate and live,
link between the effect of cruelty based on dowry demand and the concerned death. If,
the alleged incident of cruelty is remote in time and has become stale enough not to,
"disturb mental equilibrium of the woman concerned, it would be of no consequence.",
"Thus, the cruelty, harassment and demand of dowry should not be so ancient",
"whereafter, the couple and the family members have lived happily and that it would",
result in abuse of the said protection. Such demand or harassment may not strictly and,
squarely fall within the scope of these provisions unless definite evidence was led to,
"show to the contrary. These matters, of course, will have to be examined on the facts",
and circumstances of a given case.531.,
"Principles relating to section 304B IPC, 1860 and 113B Evidence Act summarised by",
Supreme Court,
"(a) To attract the provisions of section 304B, IPC, 1860, the main ingredient of the",
"offence to be established is that soon before the death of the deceased, she was",
subjected to cruelty and harassment in connection with the demand of dowry.,
(b) The death of the deceased woman was caused by any burn or bodily injury or some,
other circumstance which was not normal.,
(c) Such death occurs within seven years from the date of her marriage.,
(d) That the victim was subjected to cruelty or harassment by her husband or any,
relative of her husband.,
(e) Such cruelty or harassment should be for or in connection with demand of dowry.,
(f) It should be established that such cruelty and harassment was made soon before,
her death.,
(g) The expression (soon before) is a relative term and it would depend upon,
circumstances of each case and no straightjacket formula can be laid down as to what,
would constitute a period of soon before the occurrence.,
(h) It would be hazardous to indicate any fixed period and that brings in the importance,
of a proximity test both for the proof of an offence of dowry death as well as for raising,
"a presumption under section 113B of the Evidence Act, 1872.",
"(i) Therefore, the expression ""soon before"" would normally imply that the interval",
should not be much between the concerned cruelty or harassment and the death in,
question. There must be existence of a proximate or life link between the effect of,
"cruelty based on dowry demand and the concerned death. In other words, it should not",
be remote in point of time and thereby make it a stale one.,
"(j) However, the expression ""soon before"" should not be given a narrow meaning which",
would otherwise defeat the very purpose of the provisions of the Act and should not,
lead to absurd results.,
(k) Section 304B is an exception to the cardinal principles of criminal jurisprudence,
that a suspect in the Indian Law is entitled to the protection of Article 20 of the,
"Constitution, as well as, a presumption of innocence in his favour. The concept of",
deeming fiction is hardly applicable to criminal jurisprudence but in contradistinction to,
"this aspect of criminal law, the legislature applied the concept of deeming fiction to the",
provisions of section 304B.,
"(l) Such deeming fiction resulting in a presumption is, however, a rebuttable",
"presumption and the husband and his relatives, can, by leading their defence prove that",
the ingredients of section 304B were not satisfied.,
(m) The specific significance to be attached is to the time of the alleged cruelty and,
"harassment to which the victim was subjected to, the time of her death and whether",
the alleged demand of dowry was in connection with the marriage. Once the said,
"ingredients were satisfied, it will be called dowry death and by deemed fiction of law,",
the husband or the relatives will be deemed to have committed that offence.,
Kashmir Kaur v State of Punjab.532.,
[s 304B.8] Comparison between section 304B and section 498A.—,
Cruelty has been defined in the explanation for the purpose of section 498A.,
"Substantive section 498A, IPC, 1860 and presumptive section 113A of the Evidence",
"Act, 1872 have been inserted in the respective statutes by Criminal Law (Second",
"Amendment) Act, 1983. It is to be noted that sections 304B and 498A, IPC, 1860",
cannot be held to be mutually exclusive. These provisions deal with two distinct,
offences. It is true that cruelty is a common essential to both the sections and that has,
"to be proved. The Explanation to section 498A gives the meaning of ""cruelty"". In section",
"304B, there is no such Explanation about the meaning of ""cruelty"". But having regard to",
"common background to these offences, it has to be taken that the meaning of ""cruelty",
"or harassment"" is the same as prescribed in the Explanation to section 498A under",
"which ""cruelty"" by itself amounts to an offence. Under section 304B, it is ""dowry death""",
that is punishable and such death should have occurred within seven years of,
marriage. No such period is mentioned in section 498A. A person charged and,
acquitted under section 304B can be convicted under section 498A without that charge,
"being there, if such a case is made out. If the case is established, there can be a",
"conviction under both the sections.533. Section 498A, IPC, 1860 and section 113A of",
"the Evidence Act, 1872 include in their amplitude past event of cruelty. Period of",
"operation of section 113A of the Evidence Act, 1872 is seven years. Presumption arises",
when a woman committed suicide within a period of seven years from the date of,
marriage.534.,
"Following this in Nand Kishore v State of Maharashtra,535.,536. it was held that all the",
ingredients of this section must exist conjunctively. There must be nexus between,
cruelty and harassment to raise the presumption of dowry death under section 113B of,
"the Evidence Act, 1872.",
"The Supreme Court again explained the expression ""soon before death"" in Hans Raj v",
"State of Punjab.537.,538. There should have been continuous cruelty connected with",
demand of dowry and the same should have been shown to be in existence till date,
"when the deceased met her parents two days before her death. In this case, there was",
no intervening circumstance on record showing settlement regarding demand of,
dowry. The existence of harassment for dowry would be deemed to be there right up to,
the point of death. The accused was liable to be convicted. The meaning of the,
expression is to be decided by the Court after analysing facts and circumstances,
leading to the victim's death to see whether there is any proximate connection between,
the cruelty or harassment for dowry demand and the death.539.,
"The Supreme Court held under section 2 of the Dowry Prohibition Act, 1961 that an",
agreement for dowry is not always necessary. There was in this case a persistent,
demand for a TV set and a scooter. The demand was related with marriage. It fell,
within the meaning of the word dowry under section 304B.540. The woman died of self-,
poisoning. The evidence of her sister revealed that she had informed her about the,
harassment about one and a half years before death. The Court said that such,
"harassment could not come within the words ""soon before death"". There was no",
"convincing evidence to prove the grave charge of ""dowry death"". The accused persons",
were acquitted.541. A harassment shown to have taken place eight months before the,
"suicide was held to be not coming within the scope of the words ""soon before"". The",
conviction under section 304B was set aside. The evidence showed that cruelty was,
there. The accused persons were not able to explain why the deceased wife committed,
"suicide. The conviction and sentence under section 306 (abetment of suicide), section",
"498A and section 4 of the Dowry Prohibition Act, 1961 was maintained.542.",
[s 304B.9] Presumption of guilt and Doctrine of reverse burden.—,
The rule of law requires a person to be innocent till proved guilty. The concept of,
deeming fiction is hardly applicable to the criminal jurisprudence. In contradiction to,
"this aspect, the legislature has applied the concept of deeming fiction to the provisions",
"of section 304B. Where other ingredients of section 304B are satisfied, in that event,",
"the husband or all relatives shall be deemed to have caused her death. In other words,",
the offence shall be deemed to have been committed by fiction of law. Once the,
"prosecution proves its case with regard to the basic ingredients of section 304B, the",
Court will presume by deemed fiction of law that the husband or the relatives,
"complained of, has caused her death. Such a presumption can be drawn by the Court",
keeping in view the evidence produced by the prosecution in support of the substantive,
"charge under section 304B of the Code. Of course, deemed fiction would introduce a",
"rebuttable presumption and the husband and his relatives may, by leading their defence",
"and proving that the ingredients of section 304B were not satisfied, rebut the same.543.",
"By a deeming fiction in law, the onus shifts on to the accused to prove as to how the",
deceased died. It is for the accused to show that the death of the deceased did not,
result from any cruelty or demand of dowry by the accused persons.544. The Court has,
"to presume that the appellant has committed the offence under section 304B, IPC,",
1860. The prosecution had led sufficient evidence before the Court to raise a,
presumption that the appellant had caused the dowry death of the deceased and it,
"was, therefore, for the appellant to rebut this presumption. The appellant has chosen",
not to examine any defence witness to rebut this presumption of dowry death against,
"him under section 113B of Evidence Act, 1872. The Courts below were, thus, right in",
"holding that the appellant was guilty of the offence under section 304B, IPC, 1860.545.",
"As the financial status of both the families seems to be very very poor, the demand of",
dowry and meeting out such demand seems to be highly improbable.,
"[s 304B.10] Section 113B of Evidence Act, 1872.—",
"Alongside insertion of section 304B in IPC, 1860, the legislature also introduced",
"section 113B of the Evidence Act, 1872, which lays down when the question as to",
whether a person has committed the dowry death of a woman and it is shown that soon,
before her death such woman had been subjected by such person to cruelty or,
"harassment for, or in connection with, any demand for dowry, the Court shall presume that",
"such person had caused the dowry death. If section 304B, IPC, 1860 is read together",
"with section 113B of the Evidence Act, 1872, a comprehensive picture emerges that if a",
married woman dies in unnatural circumstances at her matrimonial home within seven,
years from her marriage and there are allegations of cruelty or harassment upon such,
married woman for or in connection with demand of dowry by the husband or relatives,
"of the husband, the case would squarely come under ""dowry death"" and there shall be a",
presumption against the husband and the relatives.546. When the question is whether a,
person has committed the dowry death of a woman and it is shown that soon before,
"her death such woman has been subjected by such person to cruelty or harassment for,",
"or in connection with, any demand for dowry, the Court shall presume that such person",
had caused the dowry death.547. The Court shall not presume the same unless it is,
"established that soon before her death, a woman has been subjected to cruelty or",
harassment for or in connection with any demand for dowry.548. For the purposes of,
"this section, ""dowry death"" shall have the same meaning as in section 304B of IPC,",
"1860 (45 of 1860).549. As per the definition of ""dowry death"" in section 304B, IPC, 1860",
"and the wording in the presumptive section 113B of the Evidence Act, 1872, one of the",
"essential ingredients amongst others, in both the provisions is that the woman",
concerned must have been 'soon before her death' subjected to cruelty or harassment,
"""for or in connection with the demand for dowry"".550. But the prosecution under section",
"304B of IPC, 1860 cannot escape from the burden of proof that the harassment or",
"cruelty was related to the demand for dowry and such was caused ""soon before her",
death.551.,
The presumption shall be raised only on proof of the following essentials:,
(1) The question before the Court must be whether the accused has committed the,
dowry death of a woman. (This means that the presumption can be raised only if the,
"accused is being tried for the offence under section 304B, IPC, 1860.)",
(2) The woman was subjected to cruelty or harassment by her husband or his relatives.,
"(3) Such cruelty or harassment was for, or in connection with, any demand for dowry.",
(4) Such cruelty or harassment was soon before her death552.,
[s 304B.11] Injuries insufficient to cause death.—,
Where injuries as found on the person of the deceased could not have caused her,
"death, the offence would not attract the mischief of the section 304B, though there",
might have been history of torture for dowry.553.,
Asphyxia only means that the death took place due to lack of air going to the lungs.,
The Doctor had to clearly opine whether this was due to strangulation or hanging and if,
"it was due to hanging, whether the hanging was suicidal or homicidal.554.",
[s 304B.12] Normal circumstances.—,
"These words apparently carry the meaning of natural death. The expression ""otherwise",
"than under normal circumstances"" means a death not taking place in the course of",
nature and apparently under suspicious circumstances if not caused by burns or bodily,
injury.555.,
[s 304B.13] Nexus between suicide and harassment.—,
The prosecution has to show nexus between suicide and harassment in the sense that,
"the victim was induced by the cruelty to take the extreme step. In this case, the",
accused was not able to point out any other cause. Evidence showed that she was,
driven away from the matrimonial home and came back because of the intervention of,
"Panchayat. Within a period of two months thereafter, there was the suicide. The Court",
said that the cruelty and suicide were inter-related. Presumption under section 113B of,
"the Evidence Act, 1872 became applicable. The accused was convicted under the",
section.556.,
[s 304B.14] Presumption.—,
Where there was sufficient evidence to prove dowry demand and death had also taken,
"place within seven years, the Supreme Court held that the presumption arising under",
the section did not become automatically rebutted by the fact that the accused,
persons had been acquitted under section 302. There were 15 injuries on her person,
"which were not self-inflicted. Thus, they were homicidal.557.",
[s 304B.15] Section attracted whether death homicidal or suicidal.—,
"Where the suicide is due to demand of dowry soon before bride's death, section 304B",
would apply. The section applies irrespective of the fact whether there is homicide or,
suicide.558.,
"[s 304B.16] Comparison with section 498A, IPC, 1860.—",
Where two women were acquitted of chargesunder section 498A which deals with,
"cruelty by husband or relatives of husband. Disapproving the High Court view, K",
"Jayachandra Reddy, J, observed559. that sections 304B and 498A cannot be held to be",
mutually exclusive.,
These provisions deal with two distinct offences. It is true that cruelty is a common,
essential to both the sections and that has to be proved. The Explanation to s. 498A gives,
"the meaning of ""cruelty"". In s. 304B there is no such Explanation about the meaning of",
"""cruelty"". But having regard to the common background to these offences we have to take",
"that the meaning of ""cruelty or harassment"" be the same as we find in the Explanation to s.",
"498A under which ""cruelty"" by itself amounts to an offence. Under s. 304B it is ""dowry death""",
that is punishable and such death should have occurred within seven years of marriage. No,
such period is mentioned in s. 498A.... Further it must also be borne in mind that a person,
charged and acquitted u/s. 304B can be convicted u/s. 498A without that charge being,
"there, if such a case is made out...",
"If the case is established, there can be a conviction under both the sections but no",
separate sentence would be necessary under section 498A in view of the substantive,
sentence being awarded for the major offence under section 304B.560.,
"[s 304B.17] Comparison with Dowry Prohibition Act, 1961.—",
The Supreme Court stated this comparison in the following words:,
"The object of s. 4, Dowry Prohibition Act 1961 is to discourage the very demand for property",
or valuable security as consideration for a marriage between the parties thereto. Section 4,
"prohibits the demand for ""giving"" property or valuable security which demand, if satisfied,",
"would constitute an offence u/s. 3 read with s. 2 of the Act. Thus, the ambit and scope of",
ss. 3 and 4 of the 1961 Act are different from the ambit and scope of s. 304-B IPC. Hence,
"the ingredients of s. 498-A IPC and ss. 3 and 4, Dowry Prohibition Act, are different from the",
ingredients of s. 304-B IPC. The High Court gravely erred in coming to the finding that once,
"the charge u/s. 304-B IPC could not be proved, then conviction u/s. 498-A IPC and ss. 3 and",
4 of the 1961 Act also could not be recorded.561. Section 4 of the Act is the penal section,
"and demanding a ""dowry"", as defined u/s. 2 of the Act, is punishable under this section.562.",
[s 304B.18] New offence.—,
Retrospective operation.—The section creates a new offence. An act committed prior to,
its enactment and enforcement cannot be tried under this section.563. The Allahabad,
High Court proceeded somewhat differently. In reference to the offence of bride,
"burning for dowry which occurred before coming into force of section 304B, it cannot",
be said that section 304B is an ex post facto law and it cannot apply in connection with,
an occurrence which took place prior to its enactment. The new offence of 'bride,
burning' was unknown on the date of occurrence in this case. Section 304B does not,
"create a new offence, rather it reiterates in substance the offence under section 302",
"under which such offences were punished. So, doctrine of ex post facto would not",
apply.564.,
[s 304B.19] Inclusion of section 302 in all Dowry death Cases.—,
"In Rajibir v State of Haryana,565. a two-Judge Bench of the Supreme Court directed all",
"trial Court to ordinarily add section 302 to the charge of section 304B, so that death",
sentences can be imposed in such heinous and barbaric crimes against women. The,
Supreme Court has clarified the direction in Rajbir by observing that:,
Be that as it may the common thread running through both the orders is that this Court had,
in Rajbir's case566. directed the addition of a charge u/s. 302 IPC to every case in which the,
"accused are charged with s. 304-B. That was not, in our opinion, the true purport of the",
order passed by this Court. The direction was not meant to be followed mechanically and,
without due regard to the nature of the evidence available in the case. All that this Court,
"meant to say was that in a case where a charge alleging dowry death is framed, a charge",
u/s. 302 can also be framed if the evidence otherwise permits.,
[s 304B.20] Charge under section 304B.—Conviction under section 306.—,
"An offence of abetment of suicide punishable under section 306 of IPC, 1860 is much",
"broader in scope than an offence punishable under section 304B of IPC, 1860.567. Plea",
"that only charge under section 304B, IPC, 1860 framed and no charge under section",
"306, IPC, 1860 framed the appellant could not be convicted for offence punishable",
"under section 306, IPC, 1860 repealed.568. Accused originally charged and convicted",
"under section 304B of IPC, 1860. The Court found Conviction for dowry death",
unsustainable. Prosecution adduced evidence on the issue of cruelty to deceased not,
only on ground of alleged demand of dowry but also on ground of her having no issue.,
Court held that mere failure to mention section 306 in charge cannot adversely,
prejudice the defence of accused. Held while acquitting accused for offence,
"punishable under section 304B of IPC, 1860, conviction can be recorded under section",
"306 of IPC, 1860.569. In K Prema S Rao v Yadla Srinivasa Rao,570. the Court, analysing",
"the evidence, ruled thus:",
"The same facts found in evidence, which justify conviction of the appellant u/s. 498A for",
"cruel treatment of his wife, make out a case against him u/s. 306 IPC of having abetted",
commission of suicide by the wife. The appellant was charged for an offence of higher,
"degree causing ""dowry death"" u/s. 304B which is punishable with minimum sentence of",
seven years' rigorous imprisonment and maximum for life. Presumption u/s. 113A of the,
Evidence Act could also be raised against him on same facts constituting offence of cruelty,
u/s. 498A IPC. No further opportunity of defence is required to be granted to the appellant,
when he had ample opportunity to meet the charge u/s. 498A IPC.,
"In a case, the Supreme Court said:",
the basic ingredients of the offence u/s. 306 IPC have been established by the prosecution,
inasmuch as the death has occurred within seven years in an abnormal circumstance and,
"the deceased was meted out with mental cruelty. Thus, we convert the conviction from one",
u/s. 304B IPC to that u/s. 306 IPC.571.,
[s 304B.21] Sections 304B and 306 together–,
"The Supreme Court, in Bhupendra v State of MP,572. examined that whether an offence",
under sections 304B and 306 together would be attracted in a case and was of the,
"opinion that section 306 of IPC, 1860 is much broader in its application and takes",
"within its fold one aspect of section 304B of the IPC, 1860. These two sections are not",
mutually exclusive. If a conviction for causing a suicide is based on section 304B of,
"IPC, 1860, it will necessarily attract section 306 of IPC, 1860. However, the converse is",
not true.,
[s 304B.22] Evidence of date of marriage.—,
The presumption starts running from the date of marriage. The prosecution has,
therefore to prove the date of marriage. The prosecution failed to do so. It was held,
that the Courts below erred in shifting the burden of showing the date of marriage to,
the defence and then the presumption on the basis of their statement about the fact of,
marriage.573. Where the marriage had taken place more than seven years before the,
"incident, the husband was acquitted under the section.574.",
"492. Ins. by Act 43 of 1986, section 10 (w.e.f. 19-11-1986).",
"493. Dhan Singh v State of UP, 2012 Cr LJ 3156 (All).",
"494. Kunhiabdulla v State of Kerala, (2004) 4 SCC 13 [LNIND 2004 SC 291] : AIR 2004 SC 1731",
"[LNIND 2004 SC 291] : (2004) 2 KLT 152 . State of AP v Raj Gopal Asawa, (2004) 9 SCC 157",
[LNIND 2003 SC 715] : 2003 Cr LJ 157 .,
"495. State of HP v Jagroop Singh, 1993 Cr LJ 2766 (HP), though there was proof of harassment,",
"but near about the period of the incident, cordial relations prevailed, no presumption, Ratan Lal v",
"State of MP, 1993 Cr LJ 3723 (MP), no presumption because, no proof of marriage beyond",
"reasonable doubt, nor of harassment, nor of death within the statutory period. Sankara Suri Babu",
"v State of AP, 1991 Cr LJ 1480 (AP), proof of demand of dowry four years after marriage, hence",
"no presumption. Nunna Venkateswarlu v State of AP, 1996 Cr LJ 108 (AP), no agreement for",
"dowry at the time of marriage; about the subsequent demands, the court said, they would not",
"create the presumption. Rajinder Kumar v State of Haryana, 1996 Cr LJ 3742 (P&H), there was no",
"evidence showing demand, the husband made desperate attempt to save the deceased and",
"himself got severely burnt, acquittal. Anil Kumar Jain v State of MP, (1996) Cr LJ 3191 (MP),",
"evidence of dowry demand which was fulfilled, no evidence of harassment either then or",
"subsequently, the wife was depressed by reason of her illness also, no mention of harassment",
"in dying declaration, section not attracted.",
"496. Shanti v State of Haryana, AIR 1991 SC 1226 [LNIND 1990 SC 696] : 1991 Cr LJ 1713 .",
"497. Shanti v State of Haryana, AIR 1991 SC 1226 [LNIND 1990 SC 696] at p 1229 : 1991 Cr LJ",
1713 .,
"498. As to this see Akula Ravinder v State of AP, AIR 1991 SC 1142 : 1991 SCC (Cr) 990, where it",
is emphasised that death must be proved to be one out of the course of nature and the mere,
fact that the deceased was young and death was not accidental is not sufficient to establish,
that death must have occurred otherwise than under normal circumstances. Ashok Kumar v,
"State of Punjab, 1987 Cr LJ 1412 (P&H), where the wife died of self-poisoning within the",
"statutory period, but there was no proof of cruelty by the husband or others. Mohan Lal v State of",
"Punjab, (1984) 1 Chand L Rep 647, suicide by married woman by burning herself and the",
"evidence only showed some maltreatment on some earlier occasions for inadequate dowry, not",
"sufficient for conviction. Gurditta Singh v State of Rajasthan, 1992 Cr LJ 309 (DB), single judge",
"session, 1991 Cr LJ 303 (Raj), where the court said that simply because a young wife had",
"brought her life to a tragic end by committing suicide by consuming insecticide, it could not be",
said that she had embraced death on account of any demand of dowry by her husband or,
mother-in-law.,
"499. For the effect of not being able to show the date of marriage, see Arbind kumar Ambasta v",
"State of Jharkhand, 2002 Cr LJ 3973 (Jhar), the effect being that the charge would have to be an",
ordinary one of murder and the benefit of the special provision would not be available.,
"500. Kashmir Kaur v State of Punjab, AIR 2013 SC 1039 [LNIND 2012 SC 802] : 2013 Cr LJ 689 ;",
"GA Mohd Moideen v State of TN, 2000 Cr LJ 4355 (Mad), a mere demand of money made by",
accused husband for the purpose of taking a shop on lease and refusal or delay in meeting the,
"demand would not be sufficient to infer compulsion for suicide. Bajrang v State of Rajasthan,",
"1998 Cr LJ 134 (Raj), cruelty soon before death for demand for dowry are necessary",
"constituents without which the offence is not complete. Satvir Singh v State, 1998 Cr LJ 405",
"(P&H), the married woman failed in her attempt at suicide, the offence under the section could",
"not arise. Nilamani Nath v State of Orissa, 1998 Cr LJ 962 (Ori), dowry demand could not be",
"proved nor the fact who caused death, mere production of a stick with which death was",
supposed to have been caused was not sufficient. Another case in which demand for dowry and,
ill-treatment could not be proved and was before the Supreme Court was Ramaswamy v Dasari,
"Mohan, 1998 Cr LJ 1105 : AIR 1998 SC 774 [LNIND 1998 SC 17] . Gurnam Singh v State, 1998 Cr",
"LJ 3694 (P&H), the husband could not be shown to be guilty, rather he took his wife to the",
"hospital and in the process was himself partly burnt, acquittal. Bhagwandas v Sham Lal, AIR",
"1997 SC 1873 [LNIND 1997 SC 304] : 1997 Cr LJ 1927 , the victim wife had left home and was",
residing with her parents. She was taken back after an amicable settlement. There was no,
"cruelty thereafter. Thus, no presumption of dowry death. Conviction under section 498A and not",
"under section 304B. State of HP v Jog Raj, 1997 Cr LJ 2033 (HP), no conviction because the",
"alleged demand of Rs. 15,000 was not proved and was also not in itself a dowry demand.",
"Balasaheb v State of Maharashtra, 1997 Cr LJ 3476 (Bom), demands made for celebration of",
seventh month of wife's pregnancy. It could not be interpreted as a demand in connection with,
"marriage under the Dowry Prohibition Act, 1961. Conviction set aside. Gati Bahera v State of",
"Orissa, 1997 Cr LJ 4331 (Ori), death due to diarrhoea, in village areas it cannot be said to be",
unnatural. It is not uncommon for ailing persons to remain without medical care. Kishan Singh v,
"State of Punjab, (2007) 14 SCC 204 [LNIND 2007 SC 1218] : AIR 2008 SC 233 [LNIND 2007 SC",
"1218] , Supreme Court restated ingredients. Biswajit Halder v State of WB, (2008) 1 SCC 202",
"[LNIND 2007 SC 344] : 2007 Cr LJ 2300 , dowry demand was there but there was no proof of any",
"cruelty or harassment being practiced, bride's suicide followed in about four months after",
"marriage. Nallam Veera Satyanarayanadam v PP High Court of AP, (2004) 10 SCC 769 [LNIND",
"2004 SC 250] : AIR 2004 SC 1708 [LNIND 2004 SC 250] , all ingredients of the defence satisfied.",
"Balwant Singh v State of Punjab, (2004) 7 SCC 724 , no proof against mother-in-law, she could",
"not be punished only for the fact of being mother-in-law. Surinder Kaur v State of Haryana, (2004)",
4 SCC 109 [LNIND 2004 SC 256] : AIR 2004 SC 1747 [LNIND 2004 SC 256] : 2004 Cr LJ 1765 .,
Conviction of two sister-in-laws was wrongful there being no evidence against them. Arun Garg v,
"State of Punjab, (2004) 8 SCC 251 [LNIND 2004 SC 1012] , dowry demand proved because twice",
"over she rang to her father stating that she was being threatened with death for dowry, she died",
"of poisoning, husband convicted.",
"501. Bakshish Ram v State of Punjab, AIR 2013 SC 1484 [LNIND 2013 SC 1157] : (2013) 4 SCC",
131 [LNIND 2013 SC 1157] .,
"502. Indrajit Sureshprasad Bind v State of Gujarat, (2013) 14 SCC 678 [LNIND 2013 SC 219] :",
(2013) 2 SCR 931 [LNIND 2013 SC 219] .,
"503. Subs. by Act 43 of 1986, section 2, for ""or after the marriage"" (w.e.f. 19-11-1986).",
"504. Subs. by Act 63 of 1984, section 2, for certain words (w.e.f. 2-10-1985).",
"505. Section 2 of the Dowry Prohibition Act, 1961.",
"506. Ashok Kumar v State of Haryana, 2010 (12) SCC 350 [LNIND 2010 SC 582] : AIR 2010 SC",
2839 [LNIND 2010 SC 582] : 2010 Cr LJ 4402 .,
"507. Ram Singh v State of Haryana, (2008) 4 SCC 70 [LNIND 2008 SC 204] ; Satbir Singh v State",
"of Punjab, AIR 2001 SC 2828 [LNIND 2001 SC 2168] .",
"508. Madhu Sudan Malhotra v KC Bhandari, (1988) Supp 1 SCC 424.",
"509. State of Andhra Pradesh v Raj Gopal Asawa, (2004) 4 SCC 470 [LNIND 2004 SC 347] .",
"510. Vidhya Devi v State of Haryana, (2004) 9 SCC 476 [LNIND 2004 SC 78] : AIR 2004 SC 1757",
"[LNIND 2004 SC 78] , there was additional demand for dowry after marriage. State of AP v Raj",
"Gopal Asawa, (2004) 4 SCC 470 [LNIND 2004 SC 347] : AIR 2004 SC 1933 [LNIND 2004 SC 347] ,",
mere demand for dowry is enough.,
"511. Kans Raj v State of Punjab, 2000 Cr LJ 2993 : AIR 2000 SC 2324 [LNIND 2000 SC 735] .",
"512. Koppisetti Subbharao v State of AP, AIR 2009 SC 2684 [LNIND 2009 SC 1038] : (2009) 12",
"SCC 331 [LNIND 2009 SC 1038] ; Reema Aggarwal v Anupam, (2004) 3 SCC 199 [LNIND 2004 SC",
1499] : AIR 2004 SC 1418 [LNIND 2004 SC 1499] .,
"513. State of Punjab v Gurmit Singh, 2014 Cr LJ 3586 : AIR 2014 SC 2561 [LNIND 2014 SC 518] .",
"514. K Prema S Rao v Yadla Srinivasa Rao, 2003 (1) SCC 217 [LNIND 2002 SC 662] : AIR 2003 SC",
11 [LNIND 2002 SC 662] : 2003 SCC (Cr) 271 : 2003 Cr LJ 69 .,
"515. Tummala Venkateswar Rao v State of Andhra Pradesh, 2014 Cr LJ 1641 : 2014 (4) SCJ 322",
[LNIND 2013 SC 1090] .,
"516. Ashok Kumar v State of Haryana, 2010 (12) SCC 350 [LNIND 2010 SC 582] : AIR 2010 SC",
2839 [LNIND 2010 SC 582] : 2010 Cr LJ 4402 .,
"517. Tarsem Singh v State of Punjab, AIR 2009 SC 1454 [LNIND 2008 SC 2415] , Yashoda v State",
"of MP, (2004) 3 SCC 98 [LNIND 2004 SC 155] .",
"518. Satya Narayan Tiwari v State of UP, 2011 Cr LJ 445 : (2010) 13 SCC 689 [LNINDORD 2010",
SC 188] : (2011) 2 SCC (Cr) 393.,
"519. State of Rajasthan v Girdhari Lal, 2014 Cr LJ 41 : 2014 (3) SCJ 584 [LNIND 2013 SC 908] .",
"520. Sukhwinder Singh v State of Punjab, 2014 Cr LJ 446 : 2014 (2) SCJ 629 .",
"521. Vidhya Devi v State of Haryana, (2004) 9 SCC 476 [LNIND 2004 SC 78] : AIR 2004 SC 476 .",
"522. Deen Dayal v State of UP, (2009) 11 SCC 157 [LNIND 2009 SC 19] : AIR 2009 SC 1238",
"[LNIND 2009 SC 19] : 2009 Cr LJ 1119 : (2009) 2 All LJ 169. On facts, the offence was",
"established. Narayanamurthy v State of Karnataka, (2008) 16 SCC 512 [LNIND 2008 SC 1179] :",
"AIR 2008 SC 2377 [LNIND 2008 SC 1179] , mere cruelty is not sufficient, it has to be in",
connection with dowry and continue up to a period soon before death. Govindaraju v State of,
"Karnataka, (2009) 14 SCC 236 [LNIND 2009 SC 1362] : 2009 Cr LJ 3457 : (2009) 2 APLJ 203 ,",
"mental torture proved by the fact that she had not taken any food for two days before her death,",
"her death in her own bed room, in the early hours of morning by burns not explained by the",
"accused, conviction under section 304B justified. Raja Lal Singh v State of Jharkhand, (2007) 15",
"SCC 415 [LNIND 2007 SC 609] : [2007] 6 SCR 105 [LNIND 2007 SC 609] , death within seven",
"months of marriage, ingredients of the offence established. Tarsem Singh v State of Punjab,",
"(2008) 16 SCC 155 [LNIND 2008 SC 2415] : AIR 2009 SC 1454 [LNIND 2008 SC 2415] ,",
"ingredients restated, meaning of dowry explained, object of provision explained, offence not",
covered because ultimately inability to bear a child was the cause for harassment. Dharam,
"Chand v State of Punjab, (2008) 15 SCC 513 [LNIND 2008 SC 2160] : AIR 2009 SC 1304 [LNIND",
"2008 SC 2160] , remission of sentence not applicable to the offence under the section,",
"government order of 14 August 2002. Under section 433, Cr PC, 1973. Prem Kumar v State of",
"Rajasthan, (2009) 3 SCC 726 [LNIND 2009 SC 23] : AIR 2009 SC 1242 [LNIND 2009 SC 23] : 2009",
"Cr LJ 1123 , death by burn injuries and head-bone fracture proved, taunting and harassment for",
"insufficient dowry also proved, the High Court set aside the acquittal by the trial Court and",
"convicted under the section, upheld by the Supreme Court.",
"523. Pradipsinh Nanubha Zala v State of Gujarat, 2016 Cr LJ 4779 (Guj).",
"524. Suresh Kumar v State of Haryana, 2014 Cr LJ 551 : 2013 (14) Scale 90 .",
"525. Surinder Singh v State of Haryana, 2014 Cr LJ 561 : AIR 2014 SC 817 [LNIND 2013 SC 1006]",
.,
"526. Mustafa Shahadal Shaikh v State of Maharashtra, 2012 AIR (SCW) 5308 : 2012 Cr LJ 4763 :",
"2012 (8) Scale 692 [LNIND 2012 SC 590] ; Kaliyaperumal v State of TN, JT 2003 (7) SC 392",
"[LNIND 2003 SC 715] : AIR 2003 SC 3828 [LNIND 2003 SC 715] ; Yashoda v State of MP, JT 2004",
(2) SC 318 [LNIND 2004 SC 155] : 2004 (3) SCC 98 [LNIND 2004 SC 155] ; Uday Chakraborty v,
"State of WB, AIR 2010 SC 3506 [LNIND 2010 SC 593] ; State of Andhra Pradesh v Raj Gopal",
"Asawa, AIR 2004 SC 1933 [LNIND 2004 SC 347] : (2004) 4 SCC 470 [LNIND 2004 SC 347] .",
"527. Balwant Singh v State of Punjab, (2004) 7 SCC 724 : AIR 2004 SC 4368 [LNIND 2004 SC",
796] .,
"528. Yashoda v State of MP, (2004) 3 SCC 98 [LNIND 2004 SC 155] : AIR 2005 SC 1411 [LNIND",
2004 SC 155] .,
"529. Keshab Chandra Panda v State of Orissa, (1995) 1 Cr LJ 174 (Ori). Another case on dowry",
"theme, Gordhan Ram v State of Rajasthan, 1995 Cr LJ 273 (Raj), the husband was convicted",
under sections 304B and 498A because there was evidence to show harassment and cruelty,
"and the wife had taken spray poison within seven years of marriage. Sant Gopal v State of UP,",
"(1995) 1 Cr LJ 312 (All), there was no evidence of dowry torture, but the offence of murder",
"simpliciter under section 300 was made out. Babaji Charan Barik v State, 1994 Cr LJ 1684 (Ori),",
"no proof of harassment. About the expression ""soon before"", the court said that it is a relative",
term and it would depend upon the circumstances of each case and no fixed period can be,
indicated in that regard.,
"530. Keshab Chandra Panda v State of Orissa, (1995) 1 Cr LJ 174 (Ori) at p. 178.",
"531. Ashok Kumar v State of Haryana, 2010 (12) SCC 350 [LNIND 2010 SC 582] : AIR 2010 SC",
"2839 [LNIND 2010 SC 582] : 2010 Cr LJ 4402 ; Pathan Hussain Basha v State of AP, JT 2012 (7)",
SC 432 [LNIND 2012 SC 473] .,
"532. Kashmir Kaur v State of Punjab, AIR 2013 SC 1039 [LNIND 2012 SC 802] : 2013 689.",
"533. See Akula Ravinder v State of Andhra Pradesh, AIR 1991 SC 1142 .",
"534. Where there was no proof of harassment soon before death, conviction under section",
"304B was set aside, and was converted to one under section 498A. See also Dilip v State of",
"Orissa, 2002 Cr LJ 1613 (Ori), only the father-in-law was convicted to 10-year imprisonment and",
"fine of Rs. 1,000 under this section read with section 498A, husband and mother-in-law were",
"acquitted. Venugopal v State of Karnataka, AIR 1999 SC 146 [LNIND 1998 SC 1339] : 1999 Cr LJ",
"29 , there was unnatural death of wife within two years of marriage. Evidence showed that she",
"was ill-treated, harassed and beaten by the accused husband many a time for dowry. Evidence",
also showed that she was ill-treated by her husband before her death. Plea of suicide was not,
"acceptable. Conviction for murder under the section. Prem Singh v State of Haryana, AIR 1998",
"SC 2628 [LNIND 1998 SC 721] : 1998 Cr LJ 4019 , wife died in the husband's house of burn",
injuries. He was not able to explain the happening. There was evidence of dowry harassment,
"conviction for murder upheld. Satpal v State of Haryana, AIR 1999 SC 1476 : 1999 Cr LJ 594 ,",
"harassment on account of dowry demand was not proved, but there was direct and convincing",
evidence to show that the wife had been humiliated and treated with cruelty on some occasions,
by the accused husband. His conviction under section 498A was maintained. Bhuneshwar Pd,
"Chaurasia v Bhuneshwar Chaurasia, 2001 Cr LJ 3541 (Pat), death by poisoning, the body was",
cremated hurriedly on the same night without informing police or relatives. There was evidence,
"of dowry demand soon before death. The husband convicted but his father acquitted, there",
"being no evidence against him. Budhi Singh v State of HP, 2000 Cr LJ 4879 , no evidence to",
"show that soon before death, the housewife who committed suicide was subjected to",
harassment or cruelty. She became compelled for suicide because of other quarrels with her,
husband. The accused could be convicted only under section 498A. Surveshwar Singh v State of,
"Rajasthan, 1999 Cr LJ 2179 (Raj), no evidence of cruelty soon before death, that is to say, in the",
"immediate past, acquittal. State of Karnataka v MV Manjunathogowda, AIR 2003 SC 809 [LNIND",
"2003 SC 5] , death of wife within six months, the testimony of her father and brother established",
that soon before her death she was being subjected to cruelty in connection with demand for,
dowry. The accused husband was sentenced to RI for 10 years.,
"535. The Court referred to Shanti v State of Haryana, AIR 1991 SC 1226 [LNIND 1990 SC 696] :",
"1991 Cr LJ 1713 . Also followed in Keshab Chandra Panda v State of Orissa, 1995 Cr LJ 174 (Ori),",
"recounting the ingredients into five points. Pramila Patnaik v State of Orissa, 1992 Cr LJ 2385",
"(Ori), no proof of harassment etc. PP Rao v State of AP, 1994 Cr LJ 2632 (AP), offence proved,",
conviction.,
"536. Nand Kishore v State of Maharashtra, 1995 Cr LJ 3706 (Bom).",
537. There were details in the statements of the witnesses of the items already given and the,
fact of withdrawal by the husband of the whole amount from the wife's account which was,
opened by her father.,
"538. Hans Raj v State of Punjab, AIR 2000 SC 2324 [LNIND 2000 SC 735] : 2000 Cr LJ 2993 .",
"539. State of Rajasthan v Jaggu Ram, (2008) 12 SCC 51 [LNIND 2007 SC 1514] : AIR 2008 SC",
"982 [LNIND 2007 SC 1514] : 2008 Cr LJ 1039 , death within 1½ years of marriage, cruel",
treatment and harassment started immediately after marriage and continued till death. High,
"Court erred in acquitting by giving undue weightage of some discrepancies, ignoring the fact",
"that she suffered head injuries at her in-laws' place and died of them, her parents not informed,",
cremation in hush-hush manner.,
"540. Pawan Kumar v State of Haryana, AIR 1998 SC 958 [LNIND 1998 SC 176] : 1998 Cr LJ 1144",
". Meka Ramaswamy v Dasari Mohan, AIR 1998 SC 774 [LNIND 1998 SC 17] : 1998 Cr LJ 1105 ,",
there was no proof of any demand. The mere fact that death took place within four months was,
"not sufficient to convict. Mahesh Kumar v State, 2001 Cr LJ 4417 (All), death caused within 11",
months of marriage by throttling and body burnt to give it the touch of suicide. Her statement to,
her brother two to three days before death that she would not be permitted to leave till the,
demand for scooter was met. The statement was held to be made soon before her death. The,
Orissa High Court has expressed the opinion that the proximity of time between ill-treatment,
and time of death is not a highly relevant factor and not an essential item to prove by evidence.,
"See Niranjan v State, 1998 Cr LJ 630 (Ori). State v Srikanth, 2002 Cr LJ 3605 (Kant), allegation",
"that the wife was driven to suicide by cruelty, the court found that the harassment had ceased",
"three to four years before the suicide, there was no nexus between the cruelty and suicide. The",
fact of husband contemplating remarriage which could have become the cause of suicide was,
also not evident. The court also said that grandparents should not be charged without,
"something specific against them. Cases in which charge not proved: Mangal Ram v State of MP,",
"1999 Cr LJ 4342 (MP), death within seven years, there was harassment for four tolas of gold.",
She was beaten and turned out. But it seemed that the cause of suicide was quarrel with some,
persons and not dowry demand. Hence offence under section 498A made out but not under,
"section 304B. T Raghunatha Reddy v State of AP, 1999 Cr LJ 4857 (AP), death of wife and child",
"due to drowning, evidence not clear, possibility of accident not ruled out, acquittal.",
"541. Public Prosecutor, HC of AP v Appireddy Madhavan Reddy, 2003 Cr LJ NOC 28 (AP) : (2002)",
2 Andh LT (Cri) 590 .,
"542. Savalram v State of Maharashtra, 2003 Cr LJ 2831 (Bom).",
"543. Ashok Kumar v State of Haryana, 2010 (12) SCC 350 [LNIND 2010 SC 582] : AIR 2010 SC",
"2839 [LNIND 2010 SC 582] : 2010 Cr LJ 4402 ; GV Siddaramesh v State of Karnataka, 2010) 3",
"SCC 152 [LNIND 2010 SC 145] : 2010 Cr LJ1649, accused has not rebutted or discharged the",
presumption. Conviction upheld.,
"544. Pathan Hussain Basha v State of AP, 2012 Cr LJ 4230 : (2012) 8 SCC 594 [LNIND 2012 SC",
473] : AIR 2012 SC 3205 [LNIND 2012 SC 473] .,
"545. Amar Singh v State of Rajasthan, AIR 2010 SC 3391 [LNIND 2010 SC 701] : (2010) 3 SCC",
(Cr) 1130.,
"546. Pathan Hussain Basha v State of AP, 2012 Cr LJ 4230 : (2012) 8 SCC 594 [LNIND 2012 SC",
"473] : AIR 2012 SC 3205 [LNIND 2012 SC 473] ; Biswajit Halder @ Babu Halder v State of WB,",
(2008) 1 SCC 202 [LNIND 2007 SC 344] .,
"547. Section 113B of Evidence Act, 1872.",
"548. Jagjit Singh v State of Punjab, AIR 2018 SC 5719 [LNIND 2018 SC 498] .",
"549. Section 113B of Evidence Act, 1872.",
"550. Bakshish Ram v State of Punjab, AIR 2013 SC 1484 [LNIND 2013 SC 1157] : (2013) 4 SCC",
131 [LNIND 2013 SC 1157] .,
"551. Mustafa Shahadal Shaikh v State of Maharashtra, 2012 AIR (SCW) 5308 : 2012 Cr LJ 4763 :",
2012 (8) Scale 692 [LNIND 2012 SC 590] .,
"552. M Srinivasulu v State of AP, 2007 (12) SCC 443 [LNIND 2007 SC 1047] : AIR 2007 SC 3146",
"[LNIND 2007 SC 1047] ; Kulwant Singh v State of Punjab, AIR 2013 SC 1567 [LNIND 2013 SC 205]",
": (2013) 4 SCC 177 [LNIND 2013 SC 271] : 2013 Cr LJ 2199 (SC); Tarsem Singh v State of Punjab,",
(2008) 16 SCC 155 [LNIND 2008 SC 2415] .,
"553. State of HP v Nikku Ram, 1995 Cr LJ 4184 . Bhaskar Ramappa Madar v State of Karnataka,",
"(2009) 11 SCC 690 [LNIND 2009 SC 723] : 2009 Cr LJ 2422 , no proof of dowry demand, hence",
"no abetment by such demand. State of Rajasthan v Teg Bahadur, 2005 SCC (Cr) 218, no proof of",
dowry demand.,
"554. Krishna Punitram Dhobi v State of Chhattisgarh, 2016 Cr LJ 4800 (Chh).",
"555. Kailash v State of MP, (2006) 12 SCC 667 [LNIND 2006 SC 803] : AIR 2007 SC 107 [LNIND",
2006 SC 803] .,
"556. Dhian Singh v State of Punjab, (2004) 7 SCC 759 : AIR 2005 SC 1450 .",
"557. Rameshwar Das v State of Punjab, (2007) 14 SCC 696 [LNIND 2007 SC 1474] : AIR 2008 SC",
"890 [LNIND 2007 SC 1474] : 2008 Cr LJ 1400 , part of dowry demands fulfilled and also proved,",
"death by suicide within seven years, the very fact that a pregnant woman should commit suicide",
speaks of unbearable harassment. Conviction under section 304B not interfered with.,
"558. Bhagwan Das v Kartar Singh, (2007) 11 SCC 205 [LNIND 2007 SC 650] : AIR 2007 SC 2045",
"[LNIND 2007 SC 650] , in this case, no charge under the section had been framed, the accused",
could not be convicted under this section.,
"559. Shanti v State of Haryana, AIR 1991 SC 1226 [LNIND 1990 SC 696] at p 1230 : 1991 Cr LJ",
"1713 . Noorjahan v State, (2008) 11 SCC 55 [LNIND 2008 SC 950] : AIR 2008 SC 2131 [LNIND",
"2008 SC 950] , cruelty is a common essential to both the sections and has to be proved. But",
otherwise these provisions have created distinct offences.,
"560. See also Padmaben Shambalbhai Patel v State of Gujarat, (1991) 1 SCC 744 : (1991) 1 GLH",
"125 , where the conviction of the sister of the deceased woman's husband was sustained on the",
basis of the dying declaration ignoring hypertechnicalities about the mode of recording a dying,
declaration. For another case of the conviction of the husband for burning his wife which,
"conviction was founded on dying declaration, see Ved Prakash v State (Delhi Admn), 1991 Supp",
"1 SCC 296. See also Ashok Kumar v State of Rajasthan, AIR 1990 SC 2134 [LNIND 1990 SC 515] :",
"1990 Cr LJ 2276 : (1991) 1 SCC 166 [LNIND 1990 SC 515] , where the social background of the",
"provisions for protection of the person of married women is explained. Ravi Kumar v State, 1991",
"Cr LJ 2579 (Del), applicant losing his wife leaving 20 months old baby, his parents infirm, bail",
"allowed. State of Kerala v Rajayyan, (1995) 1 Cr LJ 989 (Ker) here death within seven years was",
"caused by drowning in a well, all the ingredients of section 304B were made out, hence",
"conviction. Prakash Chander v State, (1995) 1 Cr LJ 368 (Del), husband convicted under section",
304B for burning off his wife because all the ingredients were proved. His mother was convicted,
under section 498A which only meant her acquittal under section 304B. In an appeal against,
"this acquittal, it was held that the High Court had no power to convict her under section 304B. D",
"Jayana v State of Karnataka, (2009) 6 SCC 575 [LNIND 2009 SC 1188] : (2009) 3 SCC (Cr) 75,",
there was sufficient evidence relating to demand of dowry to attract section 498A but the same,
"was not sufficient for the purposes of section 304B, conviction under section 304B, was set",
"aside and that under section 498A, was maintained. Custodial sentence of 3½ years already",
"served was held to be sufficient. Jagjit Singh v State of Punjab, (2009) 4 SCC 759 [LNIND 2009",
"SC 544] : AIR 2009 SC 2133 [LNIND 2009 SC 544] : 2009 Cr LJ 2440 , facts established, since",
"the minimum sentence imposed, no interference in appeal. Anand Kumar v State of MP, (2009) 3",
"SCC 799 [LNIND 2009 SC 404] : AIR 2009 SC 2155 [LNIND 2009 SC 404] , onus on the accused",
under section 306 is not as heavy as in the case of a dowry death under section 304B. State of,
"UP v Santosh Kumar, (2009) 9 SCC 626 [LNIND 2009 SC 1770] , comparison with section 498A",
"restated. Kanti Lal v State of Rajasthan, (2009) 12 SCC 498 [LNIND 2009 SC 902] : AIR 2009 SC",
"2703 [LNIND 2009 SC 902] : (2009) 9 AP LJ 95 , charge proved through witnesses. Madan Lal v",
"State of UP, (2009) 11 SCC 527 [LNIND 2009 SC 540] : AIR 2009 SC 2175 [LNIND 2009 SC 540] :",
"(2009) 3 All LJ 806, two injuries on neck, wind pipe and sound box fractured, medical opinion",
"that it could be due to epileptic fit was unfounded, even Modi's Medical Jurisprudence did not",
"say so, offence proved.",
"561. State of UP v Santosh Kumar, (2009) 9 SCC 626 [LNIND 2009 SC 1770] .",
"562. Pathan Hussain Basha v State of AP, (2012) 8 SCC 594 [LNIND 2012 SC 473] : AIR 2012 SC",
3205 [LNIND 2012 SC 473] .,
"563. Soni Devrajbhai Babubhai v State of Gujarat, 1991 Cr LJ 3135 (SC), in view of the protection",
"under Article 20(1) of the Constitution. See also Praveen Malhotra v State, 1990 Cr LJ 2184 (Del),",
where the husband's bail application was not allowed to be opposed as of right by the father of,
"the deceased bride or by a women's organisation. Amarnath Gupta v State of MP, 1991 Cr LJ",
"2163 (MP), neither suicide note nor the fact that the accused was lawyer by profession was",
"considered enough by itself for grant of bail. Premwati v State of MP, 1991 Cr LJ 268 , treatment",
by in-laws such that the bride was left with no choice but to end her life.,
"564. Bhoora Singh v State of UP, 1992 Cr LJ 2294 (All).",
"565. Rajibir v State of Haryana, AIR 2011 SC 568 [LNIND 2009 SC 1352] .",
"566. Rajibir v State of Haryana, AIR 2011 SC 568 [LNIND 2009 SC 1352] .",
"567. Karan Singh v State of Haryana, 2014 Cr LJ 2708 : (2014) 5 SCC 738 [LNINDU 2014 SC 38] .",
"568. Narwinder Singh v State of Punjab, (2011) 2 SCC 47 [LNIND 2011 SC 25] : AIR 2011 SC 686",
[LNIND 2011 SC 25] .,
"569. Ashaben v State of Gujarat, 2011 Cr LJ 854 (Guj).",
"570. K Prema S Rao v Yadla Srinivasa Rao, 2003 (1) SCC 217 [LNIND 2002 SC 662] : AIR 2003",
SC.,
"571. Gurnaib Singh v State of Punjab, (2013) 7 SCC 108 [LNIND 2013 SC 1343] : 2013 (7) Scale",
89 [LNIND 2013 SC 1343] .,
"572. Bhupendra v State of MP, 2014 Cr LJ 546 : 2014 (1) SCJ 627 .",
"573. Baljeet Singh v State of Haryana, (2004) 3 SCC 122 [LNIND 2004 SC 249] : AIR 2004 SC",
1714 [LNIND 2004 SC 249] .,
"574. Dalbir Singh v State of UP, (2004) 5 SCC 334 [LNIND 2004 SC 455] : AIR 2004 SC 1990",
[LNIND 2004 SC 455] : 2004 All LJ 1448 : 2004 Cr LJ 2025 .,
THE INDIAN PENAL CODE,
CHAPTER XVI OF OFFENCES AFFECTING THE HUMAN BODY OF,
OFFENCES AFFECTING LIFE,
[s 305] Abetment of suicide of child or insane person.,
"If any person under eighteen years of age, any insane person, any delirious person,",
"any idiot, or any person in a state of intoxication, commits suicide, whoever abets the",
"commission of such suicide, shall be punished with death or 575.[imprisonment for",
"life], or imprisonment for a term not exceeding ten years, and shall also be liable to",
fine.,
COMMENT.—,
This and the following section have been inserted because the ordinary law of,
abetment is inapplicable. They apply when suicide is in fact committed. In order to,
"frame charge under section 305 of IPC, 1860 the material placed by the prosecution",
"before the trial judge must be such that if it is accepted at its face value, it would",
establish that the commission of suicide by the girl below 18 years of age was the,
direct and proximate cause of the abetment or instigation offered by the applicant.576.,
"575. Subs. by Act 26 of 1955, section 117 and Sch, for ""transportation for life"" (w.e.f. 1 January",
1956).,
"576. Chandan Soni v State, 2006 Cr LJ 3528 (Chh).",
THE INDIAN PENAL CODE,
CHAPTER XVI OF OFFENCES AFFECTING THE HUMAN BODY OF,
OFFENCES AFFECTING LIFE,
[s 306] Abetment of suicide.,
"If any person commits suicide, whoever abets the commission of such suicide, shall",
be punished with imprisonment of either description for a term which may extend to,
"ten years, and shall also be liable to fine.",
COMMENT.—,
"Abetment of suicide is punishable under this section and attempt to commit suicide,",
under section 309.,
[s 306.1] Ingredients.—,
The ingredients of abetment of suicide are as follows:,
The prosecution has to prove—,
(i) the deceased committed suicide;,
(ii) the accused instigated or abetted the commission of suicide;,
(iii) direct involvement by the accused in such abetment or instigation is,
"necessary.577. In Ramesh Kumar v State of Chhattisgarh,578. the Supreme Court",
held that where the accused by his acts or by a continued course of conduct,
creates such circumstances that the deceased was left with no other option but,
"to commit suicide, an ""instigation"" may be inferred. In other words, in order to",
"prove that the accused abetted commission of suicide by a person, it has to be",
established that,
"(a) the accused kept on irritating or annoying the deceased by words, deeds",
or wilful omission or conduct which may even be a wilful silence until the,
"deceased reacted or pushed or forced the deceased by his deeds, words",
or wilful omission or conduct to make the deceased move forward more,
"quickly in a forward direction, and",
"(b) that the accused had the intention to provoke, urge or encourage the",
deceased to commit suicide while acting in the manner noted above.,
"Undoubtedly, presence of mens rea is the necessary concomitant of",
instigation.,
"Relevantly, it may be mentioned that there is a marked difference between",
"""intimidatory"" statement and ""instigatory"" statement. ""Intimidatory"" statements may",
"give rise to two types of consequences, (a) either the person to whom such statements",
are made may be frightened and may be on receiving end or he may be angry enough,
"to retaliate, whereas (b) instigatory statements falls within the category of goading,",
"provoking, etc.579. Abetment involves a mental process of instigating a person or",
intentionally aiding a person in doing a thing. Without a positive act on the part of the,
"accused to instigate or aid in committing suicide, conviction cannot be sustained.580.",
"[s 306.2] The scope and ambit of section 107 IPC, 1860 and its co-relation",
"with section 306 IPC, 1860.—",
Abetment involves a mental process of instigating a person or intentionally aiding a,
person in doing of a thing. Without a positive act on the part of the accused to instigate,
"or aid in committing suicide, conviction cannot be sustained.581. The intention and",
involvement of the accused to aid or instigate the commission of suicide is imperative.,
Any severance or absence of any of this constituents would militate against this,
indictment. Remoteness of the culpable acts or omissions rooted in the intention of the,
accused to actualise the suicide would fall short as well of the offence of abetment,
"essential to attract the punitive mandate of section 306, IPC, 1860. Contiguity,",
"continuity, culpability and complicity of the indictable acts or omission are the",
"concomitant indices of abetment. Section 306 IPC, thus criminalises the sustained",
"incitement for suicide.582. In the case of M Mohan v State,583. the Apex Court held that",
"there should be some live link, or a proximate link between the act of the accused and",
"the act of committing of suicide. If the live link is missing, it cannot be said that the",
"accused has instigated, or intentionally aided the commission of suicide. Mere threats",
of involving the family in a false and frivolous cases cannot be tantamount to,
instigation.584.,
Words uttered in a fit of anger or emotion without any intention could not be regarded,
as an instigation.585. A type of active role which can be described as amounting to,
instigation or aiding for doing something is requisite before a person can be said to,
have committed the offence under the section.586.,
"[s 306.3] What, if the abetted survives.—",
"The Supreme Court in Satvir Singh v State of Punjab,587. explained this particular",
situation and held that a person can be convicted only when the abetted person,
"commits suicide. If it ends in an attempt, the abetter cannot be convicted. It is possible",
to abet the commission of suicide. But nobody would abet a mere attempt to commit,
"suicide. It is also inconceivable to have abetment of an abetment. Hence, there cannot",
"be an offence under section 116 read with section 306, IPC, 1860.",
[s 306.4] Maltreatment of wife.—,
Mere stray instances of quarrel between husband and wife or the evidence that at,
times the appellant used to consume liquor cannot be termed as abetment as defined,
"under section 107 IPC, 1860. In these circumstances, it cannot be said that the",
accused/appellant instigated or abetted the deceased to end her life and that being the,
"position his conviction under section 306 IPC, 1860 is not justified, and therefore, liable",
to be set aside.588. Where husband maltreating and beating wife for not conceiving and,
"wife committed suicide, husband is liable to be convicted under section 306.589. The",
"accused husband, a drunkard, always ill-treated his wife, beat her and imputed",
unchastity. The wife in a quarrel set herself ablaze and died. The husband along with,
others attempted to stamp out flames. The conviction of the accused for murder was,
set aside and he was convicted under section 306.590.,
[s 306.5] Vicious habits like drinking and gambling and beating wife.—,
The wife of the accused poured kerosene oil on herself and set herself ablaze. In her,
dying declaration she said that her husband used to take liquor after borrowing money,
from villagers and beat her after taking liquor. The Court said that this in itself did not,
amount to abetment.591. The statement in the dying declaration was that the husband,
"used to get drunk, beat her and consistently abuse her. He also told her that he did not",
bother if she lived or died and asked her to die. The Court held that this did not mean,
that the accused intended to lead her to commit suicide. The offence of abetment was,
not made out.592.,
[s 306.6] Extra-marital relationship.—,
"Extra-marital relationship as such is not defined in the IPC, 1860. The mere fact that the",
"husband has developed some intimacy with another, during the subsistence of",
"marriage and failed to discharge his marital obligations, as such would not amount to",
"""cruelty"", but it must be of such a nature as is likely to drive the spouse to commit",
"suicide to fall within the explanation to section 498A, IPC, 1860. Court, on facts, found",
that the alleged extra-marital relationship was not of such a nature as to drive the wife,
to commit suicide.593.,
It has been held that the creation of circumstances for the victim to commit suicide,
"amounts to abetment. In this case, the deceased husband felt humiliated at the",
activities of indulgence of his wife with the accused. The accused openly spoke of his,
relationship with the wife of the deceased. The outrageous acts of the accused drove,
the deceased to suicide. The accused was held to be guilty of abetting suicide.594.,
"[s 306.7] Failure to appear at arranged marriage, no abetment.—",
The accused settled marriage ceremony date with the girl with whom he was in love,
affair but did not turn up. The girl committed suicide. It was not proved that the,
accused intended to lead her to suicide by not marrying or knew that suicide was a,
"likely consequence. It being an independent act of the victim girl, the accused was",
acquitted.595.,
[s 306.8] Pressure for repayment of loan.—,
Where the accused had lent a certain amount to a lady and he was persistently,
"demanding repayment from her, which was no offence, the accused did not know that",
"she had purchased poisonous tablets and might commit suicide, he was held not liable",
for abetment of suicide.596.,
[s 306.9] Pressure for accounting proceeds—importance of suicide note.—,
The deceased was the owner of a finance firm. The accused joined as a partner of the,
group of persons who owned land. The deceased sold the plots and handed over,
proceeds to the accused who neither handed over the money to the group nor effected,
transfer in favour of purchasers. The latter pressurised the deceased as a result of,
which he committed suicide.,
This fact figured in the suicide note. The Court attached importance to this fact and,
held the accused guilty of causing abetment.597.,
[s 306.10] Pressure for parting with streedhan.—,
The accused was forcing his wife to transfer the land to his name which she had,
received as a part of her streedhan from her father. He concealed her letters. These,
facts drove her to suicide. He was convicted under section 498A for the offence of,
cruelty. On the same evidence he was convicted under section 306 read with section,
"221, Cr PC, 1973.598.",
[s 306.11] Demand for recruitment money.—,
A demand for a sum of money for recruitment in a job does not amount to instigating,
suicide.599.,
[s 306.12] Advice.—,
Instigation necessarily indicates some active suggestion or support or stimulation to,
"the commission of the act itself, and advice can become an instigation only if it is",
found that it was an advice which was meant actively to suggest or stimulate the,
"commission of an offence.600. Following this, it was held that where two persons were",
in love with a married woman and quarrelled over her and one of them (the accused),
along with the lady taunted the other to commit suicide. The frustration thus caused,
led him to suicide. It was held that no fault could be found with cognizance of the,
offence under section 306.601.,
[s 306.13] Abetment by defamation.—,
The publication of a defamatory article against the victim was held to be not sufficient,
abetment for leading the victim to suicide.602.,
[s 306.14] Abetment by rape.—,
"The Supreme Court examined the possibility of such an abetment, but there was no",
punishment because the incident of rape itself could not be proved. The suicide was,
committed by the woman more than five and a half months after the incident. Her,
statements could not be regarded as dying declaration because there were no,
circumstances at the time which were related with her death. There was delay in,
lodging FIR and also in conducting medical examination. There was no evidence to,
connect the accused with the crime. The cause for commission of suicide was not,
"legally proved.603. Where the suicide was allegedly committed because of rape, if the",
"rape is not proved, conviction of accused for abetment to suicide is not proper.604.",
[s 306.15] Instigation from Superior officers.—,
"In Madan Mohan Singh v State of Gujarat,605. the deceased was a driver in the",
"Microwave Project Department. He had undergone a bypass surgery for his heart, just",
before the occurrence of such incident and his doctor had advised him against,
performing any stressful duties. The accused was a superior officer to the deceased.,
"When the deceased failed to comply with the orders of the accused, the accused",
"became very angry and threatened to suspend the deceased, rebuking him very harshly",
for not listening to him. The accused also asked the deceased how he still found the,
"will to live, despite being insulted so the driver committed suicide. For the purpose of",
"bringing home any charge, vis-à-vis section 306/107 IPC, 1860 against the accused,",
Supreme Court stated that there must be allegations to the effect that the accused had,
"either instigated the deceased in some way, to commit suicide or had engaged with",
"some other persons in a conspiracy to do so, or that the accused had in some way",
aided any act or illegal omission to cause the said suicide. If the making of,
"observations by a superior officer, regarding the work of his subordinate, is termed as",
"abetment to suicide, it would become almost impossible, for superior officers to",
discharge their duties as senior employees. In Vaijnath Kondiba Khandke v State of,
"Maharashtra,606. action was taken against the deceased and his salary was stopped for",
a month. The Supreme Court held that merely on that count it cannot be said that there,
was guilty mind or criminal intent to drive a person to commit suicide. That action,
simplicitor cannot be considered to be pointer against such superior officer for,
"attracting section 306 IPC, 1860, unless the situation is created deliberately so as to",
drive a person to commit suicide.,
[s 306.16] Instigation by principal/Teachers.—,
"Student committed suicide, because the Principal scolded, hit and asked him to",
"apologise before students in the assembly, when gutka pouches were recovered from",
his bag. Even if these allegations are taken as unrebutted facts even then there is no,
evidence to show that the petitioner had instigated or intentionally aided the,
"commission of suicide.607. Accused, supervisor of school gave beatings to deceased",
student for sitting on his scooter. The deceased on account of the above incident had,
"committed suicide. Even if it is true that accused had beaten the deceased, it could not",
be said that it was an act of attempt to commit suicide or instigating the commission,
of suicide by deceased.608.,
[s 306.17] Failure to provide plot after taking money.—,
The allegation against the accused was that he had taken money from the deceased,
for providing him a plot of land but refused to do so and that led to the commission of,
"suicide. There was no evidence to the effect that the accused goaded or urged, or",
provoked or incited or even encouraged the commission of suicide. The Court said that,
the mere failure to fulfil the promise concerning a plot of land was not sufficient for,
satisfying the ingredients of section 306.609.,
"[s 306.18] 304B and 306 IPC, 1860.—Difference.—",
It has been held that cruelty or harassment sans demand of dowry which drives the,
wife to commit suicide attracts the offence of abetment of suicide under section 306,
"IPC, 1860.610.",
[s 306.19] Sentence under sections 306 and 498A.—,
The Calcutta High Court observed that composite sentence for conviction under both,
the sections should not be passed.611.,
[s 306.20] Proof.—,
Instigation has to be gathered from the circumstances of the case. All cases may not,
be of direct evidence in regard to instigation having a direct nexus to the suicide. There,
could be cases where the circumstances created by the accused are such that a,
person feels totally frustrated and finds it difficult to continue existence.612. In Chitresh,
"Kumar Chopra v State (Govt of NCT of Delhi),613. the Supreme Court reiterated the legal",
position laid down in its earlier three Judges Bench judgment in the case of Ramesh,
"Kumar v State of Chhattisgarh,614. and held that where the accused by his acts or",
continued course of conduct creates such circumstances that the deceased was left,
"with no other option except to commit suicide, an instigation may be inferred. In order",
"to prove that the accused abetted commission of suicide by a person, it has to be",
established that:—,
"(i) the accused kept on irritating or annoying the deceased by words, deeds or wilful",
omission or conduct which may even be a wilful silence until the deceased,
"reacted; or pushed or forced the deceased by his deeds, words or wilful omission",
or conduct to make the deceased move forward more quickly in a forward,
direction; and,
(ii) that the accused had the intention to provoke urge or encourage the deceased,
"to commit suicide while acting in the manner noted above. Undoubtedly,",
presence of mens rea is the necessary concomitant of instigation.615.,
[s 306.21] Burden of Proof.—,
The effect of these new provisions on the matter of burden of proof is amply,
demonstrated by the decision of the Supreme Court in Gurbachan Singh v Satpal,
Singh.616. The bride died in her in-laws' home within seven months of her marriage.,
Evidence ruled out accidental death thus confirming the prosecution version of suicide.,
"As to the question of instigation, Ray J, proceeded as follows:617.",
The prosecution witnesses clearly testified to the greedy and lustful nature of the husband,
and others in that they persistently taunted the deceased and tortured her for not having,
brought sufficient dowry from her father. It is also in evidence that they taunted her for,
carrying an illegitimate child. All this … caused depression in her mind and drove her to take,
the extreme step of putting an end to her life by sprinkling kerosene oil on person and,
setting it afire. Circumstantial evidence (unaccounted delay in providing treatment and,
informing her parents living not far away) and the evidence of prosecution witnesses clearly,
proves beyond reasonable doubt that the accused persons instigated and abetted Ravinder,
Kaur. The findings arrived at by the High Court without considering the circumstantial,
evidence as well as the evidence of prosecution witnesses cannot be sustained. As such,
the findings of the High Court are liable to be reversed and set aside.,
The Supreme Court has reiterated in Wazir Chand v State of Haryana618. that before,
"section 306 can be acted upon, there must be clear proof of the fact that the death in",
question was a suicidal death. In this case the evidence adduced was not able to justify,
a finding of suicide. The only other possibility was accidental burning of the newly-,
married woman though she was being victimised for insufficient dowry and there is no,
"chance of an accident being abetted. The husband and in-laws were, however, found",
guilty under section 498A for causing harassment for dowry.,
"[s 306.22] Section 113A of Indian Evidence Act, 1872.—",
"Section 113A was inserted by the Criminal Law (Second Amendment) Act, 1983, w.e.f.",
"26 December 1983. When death takes place within seven years of her marriage,",
"presumption under section 113A of the Indian Evidence Act, 1872 springs into action.",
When the question is whether the commission of suicide by a woman had been abetted,
by her husband or any relative of her husband and it is shown that she had committed,
suicide within a period of seven years from the date of her marriage and that her,
"husband or such relative of her husband had subjected her to cruelty, the Court may",
"presume, having regard to all the other circumstances of the case, that such suicide",
had been abetted by her husband or by such relative of her husband.619. Section 113A,
only deals with a presumption which the Court may draw in a particular fact situation,
which may arise when necessary ingredients in order to attract that provision are,
established. Criminal law amendment and the rule of procedure was necessitated so,
as to meet the social challenge of saving the married woman from being ill-treated or,
"forcing to commit suicide by the husband or his relatives, demanding dowry.",
Legislative mandate of the section is that when a woman commits suicide within seven,
years of her marriage and it is shown that her husband or any relative of her husband,
"had subjected her to cruelty as per the terms defined in section 498A IPC, 1860, the",
Court may presume having regard to all other circumstances of the case that such,
suicide has been abetted by the husband or such person. Though a presumption could,
"be drawn, the burden of proof of showing that such an offence has been committed by",
"the accused under section 498A, IPC, 1860 is on the prosecution.620.",
Once the prosecution succeeds in establishing the component of cruelty leading to a,
"conviction under section 498A, in our view only in a rare case, the Court can refuse to",
"invoke the presumption of abetment, if other requirements of section 113A of the",
"Indian Evidence Act, 1872 stand satisfied.621.",
[s 306.23] Constitutional validity.—,
The scope of the pronouncement of the Apex Court that attempt to commit suicide is,
ultra vires the Constitution does not make the offence of abetment to commit suicide,
ultra vires the Constitution because the former is volitional and well-planned act of the,
person concerned whereas the latter is on the different footing as therein a third person,
forces the other person to take his life by committing suicide.622. The Constitutional,
validity of section 306 (abetment of suicide) has been upheld in a decision of the,
Bombay High Court also.623. Section 306 constitutes an entirely independent offence.,
"It is based on this principle of public policy that nobody should involve himself in, or",
"instigate or aid, the commission of a crime. It is not violative of Article 14 or 21 of the",
Constitution.,
[s 306.24] Abetment of attempt to commit Suicide.—,
Section 306 prescribes punishment for abetment of suicide while section 309 punishes,
attempt to commit suicide. Abetment of attempt to commit suicide is outside the,
purview of section 306 and it is punishable only under section 309 and read with,
"section 107 IPC, 1860.624. A conviction in terms of section 107 IPC, 1860 is not",
sustainable on mere allegation of harassment without any positive action in proximity,
to the time of occurrence on the part of the accused that led a person to commit,
suicide. A casual remark that is likely to cause harassment in ordinary course of things,
will not come within the purview of instigation. A mere reprimand or a word in a fit of,
anger will not earn the status of abetment. There has to be positive action that creates,
a situation for the victim to put an end to life.625.,
[s 306.25] Euthanasia.—,
Assisted suicide and assisted attempt to commit suicide are made punishable for,
cogent reasons in the interest of society. Such a provision is considered desirable to,
also prevent the danger inherent in the absence of such a penal provision. The,
"Constitution Bench in Gian Kaur v State of Punjab,626. held that both euthanasia and",
assisted suicide are not lawful in India which overruled the two Judge Bench decision,
of the Supreme Court in P Rathinam v UOI.627. The Court held that the right to life under,
Article 21 of the Constitution does not include the right to die. But in Aruna Ramchandra,
"Shanbaug v UOI,628. the Supreme Court held that passive euthanasia can be allowed",
under exceptional circumstances under the strict monitoring of the Court.629.,
"577. Jagannath Mondal v State of WB, 2013 Cr LJ 1994 (Cal).",
"578. Ramesh Kumar v State of Chhattisgarh, 2001 (9) SCC 618 [LNIND 2001 SC 2368] : 2001 Cr",
LJ 4724 .,
"579. Jagannath Mondal v State of WB, 2013 Cr LJ 1994 (Cal).",
"580. M Mohan v State, Represented by the Deputy Superintendent of Police, (2011) 3 SCC 626",
[LNIND 2011 SC 246] : 2011 (3) Scale 78 [LNIND 2011 SC 246] : AIR 2011 SC 1238 [LNIND 2011,
"SC 246] : 2011 Cr LJ 1900 ; Amalendu Pal v State of WB, (2010) 1 SCC 707 [LNIND 2009 SC",
"1978] ; Rakesh Kumar v State of Chhattisgarh, (2001) 9 SCC 618 [LNIND 2001 SC 2368] ; Gangula",
"Mohan Reddy v State of AP, (2010) 1 SCC 750 [LNIND 2010 SC 3] ; Thanu Ram v State of MP, 2010",
(10) Scale 557 [LNIND 2010 SC 962] : (2010) 10 SCC 353 [LNIND 2010 SC 962] : (2010) 3 SCC,
"(Cr) 1502; SS Chheena v Vijay Kumar Mahajan, (2010) 12 SCC 190 [LNIND 2010 SC 746] : 2010",
"AIR SCW 4938; Sohan Raj Sharma v State of Haryana, AIR 2008 SC 2108 [LNIND 2008 SC 845] :",
(2008) 11 SCC 215 [LNIND 2008 SC 845] .,
"581. S S Chheena v Vijay Kumar Mahajan, 2010 (12) SCC 190 [LNIND 2010 SC 746] : 2010 AIR",
SCW 4938.,
"582. Gurcharan Singh v State of Punjab, AIR 2017 SC 74 [LNIND 2016 SC 582] .",
"583. M Mohan v State, AIR 2011 SC 1238 [LNIND 2011 SC 246] : 2011 (3) SCC 626 [LNIND 2011",
SC 246] .,
"584. Vijay Kumar Rastogi v State of Rajasthan, 2012 (2) Crimes 628 (Raj).",
"585. Sonti Rama Krishna v Sonti Shanti Sree, (2009) 1 SCC 554 [LNIND 2008 SC 2319] : AIR 2009",
SC 923 [LNIND 2008 SC 2319] .,
"586. Randhir Singh v State of Punjab, AIR 2005 SC 5097 . Darbar Singh v State of Chhattisgarh,",
2013 Cr LJ 1612 (Chh).,
"587. Satvir Singh v State of Punjab, AIR 2001 SC 2826 [LNIND 2001 SC 2200] : 2001 Cr LJ 4625 .",
"588. Sanjay Jain v State of MP, 2013 Cr LJ 668 (Chh).",
"589. Sudarshan Kumar v State of Haryana, AIR 2011 SC 3024 [LNIND 2011 SC 699] : 2011 Cr LJ",
4364 .,
"590. Jeevan Babu Desai v State of Maharashtra, 1992 Cr LJ 2996 (Bom). Surender v State of",
"Haryana, (2006) 12 SCC 375 [LNIND 2006 SC 1015] : 2007 Cr LJ 375 , the husband subjected her",
"to cruelty, inference drawn from facts and circumstances of the case that there was intention to",
abet and to instigate her to suicide. Conviction under this section and not under section 302.,
"591. Pachipala Laxmaiah v State of MP, 2001 Cr LJ 4063 (AP). State of Gujarat v Jivabhai, 2001",
Cr LJ 1343 (Guj) suicide by married woman by pouring kerosene and setting herself on fire. No,
evidence of abetment by the husband or anybody else.,
"592. Bammidi Rajamallu v State of AP, 2001 Cr LJ 1319 (AP).",
"593. Pinakin Mahipatray Rawal v State of Gujarat, 2013 (3) Mad LJ (Crl) 700 : 2013 (II) Ori LR 867",
: 2013 (4) RCR (Criminal) 271 : 2013 (11) Scale 198 [LNIND 2013 SC 803] .,
"594. Dammu Sreenu v State of AP, 2003 Cr LJ 2185 (AP).",
"595. Satish v State of Maharashtra, 1997 Cr LJ 935 (Bom).",
"596. Manish Kumar Sharma v State of Rajasthan, 1995 Cr LJ 3066 (Raj).",
"597. Didigam Bhikshapathi v State of AP, AIR 2008 SC 527 [LNIND 2007 SC 1386] : (2008) 2 SCC",
403 [LNIND 2007 SC 1386] : 2008 Cr LJ 724 : (2008) 106 Cut LT 313.,
"598. K Prema S Rao v Yadla Srinivasa Rao, AIR 2003 SC 11 [LNIND 2002 SC 662] , sentenced to",
"five years imprisonment and fine of Rs. 20,000.",
"599. JS Ghura v State of Rajasthan, 1996 Cr LJ 2158 (Raj).",
"600. Raghunath Dass v Emperor, AIR 1920 Pat 502 : (1920) 21 Cr LJ 213 .",
"601. Prahlad Das Chela v State of MP, 1996 Cr LJ 3659 (MP).",
"602. State of Gujarat v Pradyman, 1999 Cr LJ 736 (Guj).",
"603. Sudhakar v State of Maharashtra, AIR 2000 SC 2602 [LNIND 2000 SC 920] : 2000 Cr LJ",
3490 .,
"604. Partha Dey v State of Tripura, 2013 Cr LJ 2101 (Gau).",
"605. Madan Mohan Singh v State of Gujarat, (2010) 8 SCC 628 [LNIND 2010 SC 763] . See also",
"Praveen Pradhan v State of Uttaranchal, (2012) 9 SCC 734 [LNIND 2012 SC 612] : 2012 (9) Scale",
745 : 2012 Cr LJ 4925 .,
"606. Vaijnath Kondiba Khandke v State of Maharashtra, AIR 2018 SC 2659 .",
"607. Aroma Philemon v State, 2013 Cr LJ 1933 (Raj).",
"608. Hasmukhbhai Gokaldas Shah v State of Gujarat, 2009 Cr LJ 2919 (Guj).",
"609. Mahesh v State of MP, 2003 Cr LJ (NOC) 50 (MP).",
"610. Narwinder Singh v State of Punjab, 2011 (2) SCC 47 [LNIND 2011 SC 25] : AIR 2011 SC 686",
[LNIND 2011 SC 25] .,
"611. Samir Samanta v State of WB, 1993 Cr LJ 134 (Cal).",
"612. Amit Kapoor v Ramesh Chander, JT 2012 (9) SC 312 [LNIND 2012 SC 564] : 2012 (9) Scale",
58 [LNIND 2012 SC 564] : (2012) 9 SCC 460 [LNIND 2012 SC 564] .,
"613. Chitresh Kumar Chopra v State (Govt of NCT of Delhi), 2009 (16) SCC 605 [LNIND 2009 SC",
1663] : AIR 2010 SC 1446 [LNIND 2009 SC 1663] .,
"614. Ramesh Kumar v State of Chhattisgarh, AIR 2001 SC 3837 [LNIND 2001 SC 2368] : ( 2001",
Cr LJ 4724 .,
"615. State of MP v Shrideen Chhatri Prasad Suryawanshi, 2012 Cr LJ 2106 (MP); Jetha Ram v",
"State of Rajasthan, 2012 Cr LJ 2459 (Raj); Kailash Baburao Pandit v State of Maharashtra, 2011 Cr",
LJ 4044 (Bom).,
"616. Gurbachan Singh v Satpal Singh, (1990) 1 SCC 445 [LNIND 1989 SC 475] at p 458 : AIR",
"1990 SC 209 [LNIND 1989 SC 475] : 1990 Cr LJ 562 . See also Wazir Chand v State of Haryana,",
(1990) 1 SCC 445 [LNIND 1989 SC 475] : AIR 1990 SC 209 [LNIND 1989 SC 475] : 1990 Cr LJ,
562 .,
"617. Gurbachan Singh v Satpal Singh, (1990) 1 SCC 445 [LNIND 1989 SC 475] at p 458 : AIR",
1990 SC 209 [LNIND 1989 SC 475] : 1990 Cr LJ 562 .,
"618. Wazir Chand v State of Haryana, AIR 1989 SC 378 [LNIND 1988 SC 569] : 1989 Cr LJ 809 :",
(1989) 1 SCC 244 [LNIND 1988 SC 569] . Another case of acquittal on charge of abetment for,
"suicide is Chanchal Kumari v Union Territory of Chandigarh, AIR 1986 SC 752 : 1986 Cr LJ 816 .",
"Dalip Singh v State of Punjab, 1988 (1) Crimes 211 [LNIND 1953 SC 61] , wife died of hanging",
"within one year, the prosecution case well established, conviction not to be struck out only",
because there were only two witnesses and those too the father and brother of deceased wife.,
"Shyama Devi v State of WB, 1987 Cr LJ 1163 where also the evidence of relatives was",
considered to be sufficient without any corroboration from outside evidence. PB Bikshdhapathi v,
"State of AP, 1989 Cr LJ 1186 , drinking and coming late of the husband coupled with beating and",
"demanding dowry was taken to amount to cruelty as defined in section 498A, IPC, 1860.",
"Khemraj Hiralal Agarwal v State of Maharashtra, 1995 Cr LJ 2271 (Bom), an attempt to abuse the",
"section by proceeding against a husband who, far from demanding anything, was helping the",
"family members of his wife, was frustrated by the court. Gajanan Singh v Maharashtra, 1996 Cr",
"LJ 2921 (Bom), evidence not clear to show that the death of the married woman was",
"immolation or murder, the section not attracted.",
"619. Section 113A of the Indian Evidence Act, 1872.",
"620. Pinakin Mahipatray Rawal v State of Gujarat, 2013 (3) Mad LJ (Crl) 700 : 2013 (II) Ori LR 867",
: 2013 (4) RCR (Criminal) 271 : 2013 (11) Scale 198 [LNIND 2013 SC 803] .,
"621. Satish Shetty v State of Karnataka, 2016 Cr LJ 3147 : AIR 2016 SC 2689 [LNIND 2016 SC",
245] .,
"622. Krishan Lal v UOI, 1994 Cr LJ 3472 (P&H); Gian Kaur v State of Punjab, 1996 Cr LJ 1660 :",
"AIR 1996 SC 946 [LNIND 1996 SC 653] , provision for penalising attempt to commit suicide and",
"abetment of suicide, held constitutional; overruling P Rathinam v UOI, 1994 AIR SCW 1764 :",
1994 Cr LJ 1605 : AIR 1994 SC 1844 [LNIND 1994 SC 1533] : (1994) 3 SCC 394 [LNIND 1994 SC,
1533] .,
"623. Naresh Morotrao v UOI, (1995) 1 Cr LJ 96 (Bom).",
"624. Gian Kaur v State of Punjab, AIR 1996 SC 946 [LNIND 1996 SC 653] : (1996) 2 SCC 648",
[LNIND 1996 SC 653] .,
"625. Pawan Kumar v State of HP, AIR 2017 SC 2459 [LNIND 2017 SC 241] .",
"626. Gian Kaur v State of Punjab, 1996 (2) SCC 648 [LNIND 1996 SC 653] .",
"627. P Rathinam v UOI, AIR 1994 SC 1844 [LNIND 1994 SC 1533] : 1994 (3) SCC 394 [LNIND",
1994 SC 1533] .,
"628. Aruna Ramchandra Shanbaug v UOI, (2011) 4 SCC 454 [LNIND 2011 SC 265] : AIR 2011 SC",
1290 [LNIND 2011 SC 265] .,
"629. In March 2018, a five-judge Constitution Bench gave legal sanction to passive euthanasia,",
permitting 'living will' by patients on withdrawing medical support if they slip into irreversible,
coma. The SC held that the right to die with dignity is a fundamental right; see Common Cause,
"(A Regd. Society) v UOI, LNIND 2018 SC 87 .",
THE INDIAN PENAL CODE,
CHAPTER XVI OF OFFENCES AFFECTING THE HUMAN BODY OF,
OFFENCES AFFECTING LIFE,
[s 307] Attempt to murder.,
"Whoever does any act with such intention or knowledge, and under such",
"circumstances that, if he by that act caused death, he would be guilty of murder, shall",
be punished with imprisonment of either description for a term which may extend to,
"ten years, and shall also be liable to fine, and if hurt is caused to any person by such",
"act, the offender shall be liable either to 630.[imprisonment for life], or to such",
punishment as is hereinbefore mentioned.,
Attempts by life convicts.,
631.[When any person offending under this section is under sentence of 632.,
"[imprisonment for life], he may, if hurt is caused, be punished with death.]",
ILLUSTRATIONS,
"(a) A shoots at Z with intention to kill him, under such circumstances that, if",
death ensued. A would be guilty of murder. A is liable to punishment under,
this section.,
"(b) A, with the intention of causing the death of a child of tender years, exposes",
"it in a desert place. A has committed the offence defined by this section,",
though the death of the child does not ensue.,
"(c) A, intending to murder Z, buys a gun and loads it. A has not yet committed",
the offence. A fires the gun at Z. He has committed the offence defined in,
"this section, and if by such firing he wounds Z, he is liable to the punishment",
provided by the latter part of 633.[the first paragraph of] this section.,
"(d) A, intending to murder Z by poison, purchases poison and mixes the same",
with food which remains in A's keeping; A has not yet committed the,
offence defined in this section. A places the food on Z's table or delivers it,
to Z's servant to place it on Z's table. A has committed the offence defined,
in this section.,
COMMENT.—,
Attempt to murder.—This and the following section seem to apply to attempts to,
"murder, in which there has been not merely a commencement of an execution of the",
"purpose, but something little short of a complete execution, the consummation being",
"hindered by circumstances independent of the will of the author. The act or omission,",
"although it does not cause death, is carried to such a length as, at the time of carrying",
"it to that length, the offender considers sufficient to cause death.634.",
The essential ingredients required to be proved in the case of an offence under section,
307 are:,
(i) that the death of a human being was attempted;,
"(ii) that such death was attempted to be caused by, or in consequence of the act of",
the accused; and,
(iii) that such act was done with the intention of causing death; or that it was done,
with the intention of causing such bodily injury as:,
(a) the accused knew to be likely to cause death; or,
"(b) was sufficient in the ordinary course of nature to cause death, or that the",
accused attempted to cause death by doing an act known to him to be,
"so imminently dangerous that it must in all probability cause (a) death, or",
"(b) such bodily injury as is likely to cause death, the accused having no",
excuse for incurring the risk of causing such death or injury.635.,
"To justify a conviction under this section, it is not essential that bodily injury capable of",
causing death should have been inflicted. Although the nature of injury actually caused,
may often give considerable assistance in coming to a finding as to the intention of the,
"accused, such intention may also be deduced from other circumstances, and may even,",
"in some cases, be ascertained without any reference at all to actual wounds. The",
"section makes a distinction between an act of the accused and its result, if any. Such",
"an act may not be attended by any result so far as the person assaulted is concerned,",
but still there may be cases in which the culprit would be liable under this section. It is,
not necessary that the injury actually caused to the victim of the assault should be,
sufficient under ordinary circumstances to cause the death of the person assaulted.,
"What the Court has to see is whether the act, irrespective of its result, was done with",
the intention or knowledge and under circumstances mentioned in the section. An,
"attempt in order to be criminal need not be the penultimate act. It is sufficient in law, if",
there is present an intent coupled with some over act in execution thereof.636. To bring,
"a case within the ambit of section 307, the prosecution has to make out the facts and",
circumstances envisaged by section 300. If the ingredients of section 300 are wholly,
"lacking, there can be no conviction under section 307.637. The ingredients of the",
section are (1) intention or knowledge relating to commission of murder; and (2) the,
doing of an act towards it.638. The Supreme Court held in Pulicherla Nagaraju v State of,
AP that:,
The intention to cause death can be gathered generally from a combination of a few or,
"several of the following, among other, circumstances: (i) nature of the weapon used; (ii)",
whether the weapon was carried by the accused or was picked up from the spot; (iii),
whether the blow is aimed at a vital part of the body; (iv) the amount of force employed in,
causing injury; (v) whether the act was in the course of sudden quarrel or sudden fight or,
free for all fight; (vi) whether the incident occurs by chance or whether there was any pre-,
meditation; (vii) whether there was any prior enmity or whether the deceased was a,
"stranger; (viii) whether there was any grave and sudden provocation, and if so, the cause for",
such provocation; (ix) whether it was in the heat of passion; (x) whether the person inflicting,
the injury has taken undue advantage or has acted in a cruel and unusual manner; (xi),
whether the accused dealt a single blow or several blows. The above list of circumstances,
"is, of course, not exhaustive and there may be several other special circumstances with",
reference to individual cases which may throw light on the question of intention.639.,
"In a group clash, one person died and several others were injured, some of them",
seriously. The accused also received injuries. Two of the accused were convicted under,
"section 307 and others under section 324. The Supreme Court held that, though the",
"injuries caused by the two accused were somewhat serious, the offence for attempt to",
murder was not made out as their case stood on the same footing as that of others,
and altered their conviction to one under section 324.640.,
[s 307.1] Attempt.—,
Attempt is an intentional preparatory action which fails in its object—which so fails,
through circumstances independent of the person who seeks its accomplishment.641.,
The mere use of lethal weapons is sufficient to invoke the provisions of section,
307.642. There was evidence that the accused dealt with not only one blow but two,
blows successively with an axe on the head of the victim. It was held that the intention,
to cause death could be gathered from the circumstances.643. It is not necessary to,
constitute the offence that the attack should result in an injury. An attempt is itself,
sufficient if there is requisite intention. An intention to murder can be gathered from,
circumstances other than the existence or nature of the injury.644.,
To attract the offence the injury need not be caused to vital parts.645.,
[s 307.2] Whether act committed must be capable of causing death.—,
"The section makes a distinction between the act of the accused and its result, if any.",
"The Court has to see whether the act, irrespective of its result, was done with the",
"intention or knowledge and under circumstances mentioned in the section. Therefore,",
"an accused charged under section 307 IPC, 1860 cannot be acquitted merely because",
the injuries inflicted on the victim were in the nature of a simple hurt.646. It is not,
essential that bodily injury capable of causing death should have been inflicted in order,
that the charge under section 307 be made out. It is enough if there is an intention,
"coupled with some common act in execution thereof.647. In Hari Singh,648. the Supreme",
Court added that:,
the intention or knowledge of the accused must be such as is necessary to constitute,
murder. Without this ingredient being established there can be no offence of attempt to,
"murder … The intention is to be gathered from all the circumstances, and not merely from",
the consequences that ensue.,
"The nature of the weapon used, the manner in which it is used, motive for the crime,",
"severity of the blow, and the part of the body where the injury is inflicted, are some of",
the factors that may be taken into consideration to determine the intention.,
[s 307.3] Acting in self-defence.—,
The accused alleged that he was attacked by the assailant party. The plea seemed to,
the Court to be true because there was no explanation from the prosecution side about,
injuries sustained by the accused. The medical papers of the complainant did not,
mention the name of the assailant though it was a medico-legal case. The conviction,
of the accused for attempt to murder was held liable to be set aside.649.,
[s 307.4] Rape on young girl.—,
"Where the accused took away a girl of four years to a lonely place near a canal,",
"sexually assaulted her and threw her in the canal, but was saved by a passer-by, his",
sentence of three years RI with fine of Rs. 500 under section 307 was raised to seven,
"years RI and fine of Rs. 1,000.650.",
[s 307.5] Simple hurt.—,
Intention is an essential ingredient of the offence of attempt to murder. Where the,
"injuries caused were simple in nature and also not on vital parts of the body, the Court",
said that the intention for attempt to murder could not be inferred. The Court held that,
no offence under section 324 was made out because injuries were caused with a,
sharp-cutting weapon.651. Where the accused persons had no common intention to kill,
or have knowledge that death was likely to ensue but only intended to vent their ire,
"against their neighbour for having assaulted their bullocks, when the injuries sustained",
"by the injured persons were simple in nature, the Supreme Court held the accused",
persons cannot be convicted under section 307 r/w 34.652.,
[s 307.6] Nature of injuries is not determinative.—,
The nature of injuries has been held by the Supreme Court to be not a determinative,
factor. The framing of charge was challenged in this case on the ground that the,
injuries inflicted on the victim were simple in nature and no injury was found on any,
vital part of the body. The determinative factor is intention or knowledge and not the,
nature of injury.653. The circumstances that the injury inflicted by the accused was,
"simple or minor will not by itself rule out application of section 307, IPC, 1860. The",
"determinative question is the intention or knowledge, as the case may be, and not",
nature of the injury.654.,
[s 307.7] Section 307 and Section 326.—,
"A bare perusal of these two provisions clearly reveals that while section 307 IPC, 1860",
"uses the words ""under such circumstances"", these words are conspicuously missing",
"from section 326 IPC, 1860. Therefore, while deciding whether the case falls under",
"section 307 IPC, 1860 or under section 326 IPC, 1860 the Court must necessarily",
examine the circumstances in which the assault was made. Considering the fact that,
"the assault was made after some premeditation and pre-planning, considering the fact",
"that assault was carried out in the dead of the night, considering the nature of the",
"weapon, used, nature of the injuries caused, obviously, the present case falls under the",
"ambit of section 307 IPC, 1860 and not under section 326 IPC, 1860. Therefore, the",
learned trial Court was certainly justified in acquitting the appellant for offence under,
"section 326 IPC, 1860 and in convicting him for offence under section 307 IPC,",
1860.655.,
"630. Subs. by Act 26 of 1955, section 117 and Sch., for transportation for life (w.e.f. 1-1-1956).",
"631. Ins. by Act 27 of 1870, section 11.",
"632. Subs. by Act 26 of 1955, section 117 and Sch, for ""transportation for life"" (w.e.f. 1-1-1956).",
"633. Ins. by Act 12 of 1891, section 2 and Sch II.",
"634. M&M 274; Rawal Arab, (1898) Unrep Cr C 964. Lugga Singh v State of Punjab, (2008) Cr LJ",
"90 (P&H), two accused had altercation with a worker because of offering his labour at low wage,",
"one of them struck the victim with gandasi at head, there being no such common intention, the",
"non-attacking accused was acquitted. Asharam v State of MP, (2007) 11 SCC 164 [LNIND 2007",
"SC 534] : AIR 2007 SC 2594 [LNIND 2007 SC 534] , accused fled from the scene taking the",
"victim to be dead, testimony of injured witness corroborated by medical evidence, conviction",
upheld.,
"635. Chimanbhai Jagabhai Patel v State of Gujarat, AIR 2009 SC 3223 [LNIND 2009 SC 568] :",
(2009) 11 SCC 273 [LNIND 2009 SC 568] .,
"636. State of MP v Kedar Yadav, 2011 (1) SCC (Cr) 1008.",
"637. Arjun Thakur v State of Orissa, 1994 Cr LJ 3526 (Ori). Hemant Kumar Mondal v State of WB,",
"1993 Cr LJ 82 (Cal), the accused instigated three persons for committing the offence of murder;",
"he was guilty of abetment, convicted under sections 307/109. Cr LJ 1340 (Gau), militants,",
"engaged police in an encounter, presumption of intention to kill. Chhota Master v State of Orissa,",
"1998 Cr LJ 3185 (Ori), accused persons stabbed the victim in the stomach, intestines came out,",
"threw him into river from bridge and pelted stones, conviction under sections 307/34 not",
"interfered with. Balakrishna Tripathy v State of Orissa, 1998 Cr LJ 3591 (Ori), only one accused",
"allowed to be charged, there was no evidence against others; Hingu v State of UP, 1998 Cr LJ",
"365 : AIR 1998 SC 198 [LNIND 1997 SC 1528] . Santosh Kumar v State of UP, 1997 under section",
"307 was held to be made out. Raja v State, 1997 Cr LJ 1863 (Del), injuries with dagger,",
serologist's report on blood on dagger not necessary where there was sufficient evidence,
"otherwise to connect the accused with the attempt.; Achhaibar Pd v State of UP, 1997 Cr LJ 2666",
": 1997 All LJ 705, the accused fired at police constable at close range, the bullet pierced the",
"chest through and through, dying declaration, section 307 attracted. Another ruling on the same",
"facts, Ranveer Singh v State of UP, 1997 Cr LJ 2266 (All), no leniency in punishment. Pulkit",
"Purbey v State of Bihar, 1997 Cr LJ 2371 (Pat), several injuries of simple nature on non-vital",
"parts, only one on head, no intention to cause death, conviction under section 326. Sirish",
"Chandra Paul v State of Assam, 1997 Cr LJ 2617 (Gau), injury on vital part, intention to cause",
"death, conviction under section 307.",
"638. Sumersimbh Umedsinh Rajput v State of Gujarat, (2007) 13 SCC 83 [LNIND 2007 SC 1450] :",
AIR 2008 SC 904 [LNIND 2007 SC 1450] : 2008 Cr LJ 1388 .,
"639. Pulicherla Nagaraju v State of AP, (2006) 11 SCC 444 [LNIND 2006 SC 621] : AIR 2006 SC",
"3010 [LNIND 2006 SC 621] : 2006 Cr LJ 3899 ; Mangesh v State of Maharashtra, (2011) 2 SCC",
123 [LNIND 2011 SC 20] : AIR 2011 SC 637 [LNIND 2011 SC 20] : 2011 Cr LJ 1166 .,
"640. Dharam Pal v State of Punjab, AIR 1993 SC 2484 : 1993 Cr LJ 2856 (SC). Parsuram Pandey v",
"State of Bihar, AIR 2004 SC 5068 [LNIND 2004 SC 1075] : (2004) 13 SCC 189 [LNIND 2004 SC",
"1075] , the Supreme Court explained the ingredients of the offence. State of UP v Virendra",
"Prasad, (2004) 9 SCC 37 [LNIND 2004 SC 138] : AIR 2004 SC 1517 [LNIND 2004 SC 138] , firing",
"at police from close range, intention clear conviction.",
"641. Luxman, (1899) 2 Bom LR 286 . Sagayam v State of Karnataka, AIR 2000 SC 2161 [LNIND",
"2000 SC 740] : 2000 Cr LJ 3182 , police search of the house of the accused. The latter tried to",
assault the police officer and his staff but they escaped. The accused threatened that he would,
kill them. The court said that it was only a threat. The overt act attributed to him did not amount,
"to attempt to murder. Parveen v State of Haryana, AIR 1997 SC 310 [LNIND 1996 SC 1723] : 1997",
"Cr LJ 252 , the victim of attack testified that the accused on being refused glasses for taking",
"liquor, went to his tractor and came to the hotel with a gun, fired at him, but he was saved as he",
"stretched to the ground, convicted. Pratap Singh v State, 2001 Cr LJ 3154 (Uttaranchal),",
"conviction for attempt to murder, injury caused on death with sharp-edged weapon, injury",
"grievous but short of death. Shankar Lal v State of Haryana, 1998 Cr LJ 4595 : AIR 1998 SC 3271",
"[LNIND 1998 SC 632] , evidence of victim alone is sufficient. Parveen v State of Haryana, AIR",
"1997 SC 310 [LNIND 1996 SC 1723] : 1997 Cr LJ 252 , offence proved.",
"642. Narayan v State of Karnataka, 1998 Cr LJ 1549 (Kant). The accused was also held guilty of",
"murder because his attack on the son succeeding in killing him, the mother survived in injured",
"state and became witness. Prakash Chandra Yadav v State of Bihar, (2007) 13 SCC 134 [LNIND",
"2007 SC 1232] : 2008 Cr LJ 438 , doing of an act with intention or knowledge to cause death is a",
necessary ingredient. Receipt of injury by the victim is not a prerequisite for conviction under the,
first part. The second part is attracted when the victim receives an injury. In a rivalry between,
"tenderers, two bombs were hurled on the rival, one did not explode, the other exploded, but",
victim escaped unhurt. Trial Court convicted the accused. High Court acquitted him because of,
no injury. Validity of the judgment on evidence was not considered. Case relegated to HC for,
"reconsideration. Balmiki Singh v Ramchandra Singh, (2008) 10 SCC 218 [LNIND 2008 SC 1866] :",
"AIR 2009 SC 377 [LNIND 2008 SC 1866] , Supreme Court did not interfere in the order of",
"acquittal by the HC because of discrepancies in evidence. Jagdish Murar v State of UP, (2006) 12",
"SCC 626 [LNIND 2006 SC 648] , allegation of firing a shot not properly investigated, benefit of",
doubt given to accused.,
"643. Bansidhar Mallick v State of Orissa, 1998 Cr LJ 897 (Ori).",
"644. Manik Bandu Gawali v State of Maharashtra, 1998 Cr LJ 2246 (Bom). In Joginder Singh v",
"State of Punjab, 1998 Cr LJ 2255 (SC), the Supreme Court set aside a conviction which did not",
"seem to have been based upon a fair investigation. Bir Singh v State of HP, 2006 Cr LJ 2456 : AIR",
"2006 SC 1944 [LNIND 2006 SC 305] : (2006) 9 SCC 579 [LNIND 2006 SC 305] , incident of",
"attempted murder took place in police post, information given immediately, injuries",
"corroborated medical evidence and constable on duty, could not be disbelieved only because",
"the village Pradhan had turned hostile. Jagdish v State of Haryana, 2005 Cr LJ 3073 : AIR 2005",
"SC 2576 [LNIND 2005 SC 507] , land dispute, attack on victim with lathi and gandasa,",
"amputation of arms, conviction under section 307, reducing sentence from 10 years to eight",
years RI and fine of Rs. 1 lac.,
"645. Anjani Kumar Chaudhary v State of Bihar, 2014 Cr LJ 3798 : 2014 (3) AJR 628 .",
"646. State of MP v Kedar Yadav, 2011 (1) SCC (Cri) 1008 [LNIND 2006 SC 1061] ; Ajay v State of",
"Chattisgarh, 2013 Cr LJ 13409 (Chh); State of MP v Kashiram, (2009) 4 SCC 26 [LNIND 2009 SC",
"215] : AIR 2009 SC 1642 [LNIND 2009 SC 215] ; Manoj Kumar Mishra v State of Chhattisgarh,",
"2013 Cr LJ 1487 (Chh); State of Maharashtra v Balram Bama Patil, 1983 (2) SCC 28 [LNIND 1983",
"SC 40] ; Girija Shanker v State of UP, 2004 (3) SCC 793 [LNIND 2004 SC 154] , R Parkash v State of",
"Karnataka, JT 2004 (2) SC 348 [LNIND 2004 SC 189] and State of MP v Saleem @ Chamaru, 2005",
(5) SCC 554 [LNIND 2005 SC 1070] .,
"647. Chhanga v State of MP, AIR 2017 SC 1415 [LNIND 2017 SC 97] .",
"648. Hari Singh, (1988) 4 SCC 551 [LNIND 1988 SC 411] : AIR 1988 SC 2127 [LNIND 1988 SC",
"411] . See also AG Bhagwat v UT Chandigarh, 1989 Cr LJ 214 (P&H), acid thrown on lady",
"colleague for disfiguring her, not liable under this section. Ram Kumar v State (NCT) of Delhi, AIR",
"1999 SC 2259 [LNIND 1999 SC 1277] : 1999 Cr LJ 3522 , accused fired a shot from country-",
"made pistol. The victim, a near relative, was injured. The act showed the intention of the",
"accused. Hence, convicted. The sentence was reduced from 10 years RI to seven years RI. Rajan",
"v State of MP, 2000 Cr LJ 2423 (MP), allegation that accused fired at police party which had",
"gone into jungle to catch him, nobody was aimed at in the group or individually, firing struck no",
"body, acquittal. Dnyaneshwar v State of Maharashtra, 2013 Cr LJ 2152 (Bom)— Benefit of doubt",
given to the accused.,
"649. Rehmat v State of Haryana, AIR 1997 SC 1526 [LNIND 1996 SC 1386] : 1997 Cr LJ 764 .",
"Nasir Sikander Shaikh v State of Maharashtra, 2005 Cr LJ 2621 : AIR 2005 SC 2533 [LNIND 2005",
"SC 474] , burden is heavy on the prosecution to prove every ingredient of the offence, the",
defence has only to probabilise the material which is there in support of the defence plea. Karan,
"Singh v State of MP, (2003) 12 SCC 587 [LNIND 2003 SC 840] , the plea of self-defence found to",
be not real.,
"650. State of Maharashtra v Umesh Krishna Pawar, 1994 Cr LJ 774 (Bom).",
"651. Sarjug Turi v State of Bihar, 2003 Cr LJ 2864 (Jhar), conviction was shifted to u/s. 324, the",
"offence and prosecution being of 17 years long standing, the accused was released on",
probation.,
"652. Lakshmi Chand v State of UP, AIR 2018 SC 3961 .",
"653. Ratan Singh v State of MP, (2009) 12 SCC 585 [LNIND 2009 SC 984] : AIR 2010 SC 597",
[LNIND 2009 SC 984] .,
"654. State of MP v Kashiram, AIR 2009 SC 1642 [LNIND 2009 SC 215] . Therefore, whether the",
injury is simple or grievous in nature hardly matters to invoke the provisions of section 307. Sk,
"Khaja Sk Dawood v State of Maharashtra, 2011 Cr LJ 1150 (Bom).",
"655. Pooran Singh Seera Alias Pooran Meena v State of Rajasthan, 2011 Cr LJ 2100 (Raj);",
"Raghunath v State By Police of Vijayapura Police Station, 2011 Cr LJ 549 (Kar); Neelam Bahal v",
"State of Uttarakhand, AIR 2010 SC 428 [LNIND 2009 SC 2056] : (2010) 2 SCC 229 [LNIND 2009",
SC 2056] .,
THE INDIAN PENAL CODE,
CHAPTER XVI OF OFFENCES AFFECTING THE HUMAN BODY OF,
OFFENCES AFFECTING LIFE,
[s 308] Attempt to commit culpable homicide.,
Whoever does any act with such intention or knowledge and under such,
"circumstances that, if he by that act caused death, he would be guilty of culpable",
"homicide not amounting to murder, shall be punished with imprisonment of either",
"description for a term which may extend to three years, or with fine, or with both; and,",
"if hurt is caused to any person by such act, shall be punished with imprisonment of",
"either description for a term which may extend to seven years, or with fine, or with",
both.,
ILLUSTRATION,
"A, on grave and sudden provocation, fires a pistol at Z, under such circumstances that",
if he thereby caused death he would be guilty of culpable homicide not amounting to,
murder. A has committed the offence defined in this section.,
COMMENT.—,
The wording of this section is the same as that of the preceding one except that it,
"deals with an attempt to commit culpable homicide. The punishment provided is,",
"therefore, not so severe. Before an accused can be held to be guilty under section 308",
"IPC, 1860 it was necessary to arrive at a finding that the ingredients thereof, namely,",
requisite intention or knowledge was existing.656. When the accused can be attributed,
only knowledge that by inflicting such injuries he was likely to cause death and an,
"attempt to commit such an offence would be one punishable under section 308 IPC,",
1860.657.,
[s 308.1] Nature of injury.—,
Whether the injury was grievous or simple deserved a back seat in face of the charge,
"under section 308/34 IPC, 1860. Offence punishable under section 308 IPC, 1860",
postulates doing of an act with such intention or knowledge and under such,
"circumstances that if one by that act caused death, he would be guilty of culpable",
homicide not amounting to murder. An attempt of that nature may actually result in,
hurt or may not. It is the attempt to commit culpable homicide which is punishable,
"under section 308 IPC, 1860 whereas punishment for simple hurts can be meted out",
"under sections 323 and 324 and for grievous hurts under sections 325 and 326 IPC,",
"1860. Qualitatively, these offences are different.658.",
[s 308.2] Self-defence.—,
Merely because the prosecution witnesses had suffered more injuries than the,
"respondents, would not be sufficient to hold that the respondents were the aggressor",
"party. In other words, the defence version cannot be discarded only on the basis of",
lesser number of injuries having been suffered by them. Appeal against acquittal,
"dismissed.659. On the facts and in the circumstances of the case, the Supreme Court",
"found that plea of self-defence was not made out by the appellant and, therefore,",
contention that the finding recorded by the High Court that he was guilty under section,
"304, Part-I IPC, 1860 for causing death of the deceased and under section 308, IPC,",
1860 for causing injuries to Rahmat should be sustained cannot be accepted.660.,
[s 308.3] Sentence.—,
Trial Court convicted accused under section 308 r/w 149 and sentenced them to three,
years RI and fine of Rs. 500 each. The High Court confirmed the conviction and,
sentence. The Supreme Court modified the sentence by reducing the imprisonment to,
"one year and increased the fine amount to Rs. 25,000.661. Accused was convicted",
"under section 308, IPC, 1860. Offence was committed when the accused was 17 years",
"old. High Court released him under section 4 of Probation of Offenders Act, 1958.662.",
"656. Bishan Singh v State, AIR 2008 SC 131 [LNIND 2007 SC 1178] : (2007) 13 SCC 65 [LNIND",
"2007 SC 1178] ; Sheetala Prasad v Sri Kant, (2010) 2 SCC 190 [LNIND 2009 SC 2121] : AIR 2010",
SC 1140 [LNIND 2009 SC 2121] .,
"657. Tukaram Gundu Naik v State of Maharashtra, (1994) 1 SCC 465 [LNIND 1993 SC 820] : 1994",
Cr LJ 224 .,
"658. Sunil Kumar v NCT Delhi, (1998) 8 SCC 557 : 1998 SCC (Cr) 1522.",
"659. State of UP v Munni Ram, (2011) 3 SCC (Cr) 745 : AIR 2011 SC (Supp) 573.",
"660. Shaukat v State of Uttaranchal, (2010) 5 SCC 68 [LNIND 2010 SC 387] : 2010 Cr LJ 4310 :",
(2010) 2 SCC (Cr) 1238.,
"661. Lakhan v State of MP, (2013) 1 SCC 363 [LNIND 2012 SC 796] .",
"662. State v Ravindra Singh, 2013 Cr LJ 2874 (Utt). See also Jameel v State of UP, (2010) 12 SCC",
532 [LNIND 2009 SC 1960] : AIR 2010 SC (Supp) 303.,
THE INDIAN PENAL CODE,
CHAPTER XVI OF OFFENCES AFFECTING THE HUMAN BODY OF,
OFFENCES AFFECTING LIFE,
[s 309] Attempt to commit suicide.,
Whoever attempts to commit suicide and does any act towards the commission of,
"such offence, shall be punished with simple imprisonment for a term which may",
"extend to one year 663.[or with fine, or with both].",
COMMENT.—,
"Suicide by itself is not an offence under either English or Indian Criminal Law, though at",
"one time it was a felony in England.664. It is a unique legal phenomenon in the IPC,",
"1860 that the only act, the attempt of which alone will become an offence. The person",
"who attempts to commit suicide is guilty of the offence under section 309 IPC, 1860",
whereas the person who committed suicide cannot be reached at all. Section 306,
renders the person who abets the commission of suicide punishable for which the,
condition precedent is that suicide should necessarily have been committed.665.,
"The act done must be in the course of the attempt, otherwise no offence is committed.",
"Where a woman with the intention of committing suicide by throwing herself in a well,",
"actually ran towards it, when she was seized by a person, it was held that she might",
"have changed her mind, and she was caught before she did anything which might have",
been regarded as the commencement of the offence.666. Her act simply amounted to,
preparation. The pounding of oleander roots with an intention to poison oneself with,
the same was held not to constitute this offence.667. Where the accused jumped into a,
"well to avoid and escape from police, and when rescued he came out of the well of his",
"own accord, it was held that, in the absence of evidence that he jumped into the well to",
"commit suicide, he could not be convicted of this offence.668. A village woman of 20",
"years old was ill-treated by her husband. There was a quarrel between the two, and the",
"husband threatened that he would beat her. Late that night the woman, taking her six",
"months' old baby in her arms, slipped away from the house. After she had gone some",
"distance she heard somebody coming up behind her, and when she turned round and",
"saw her husband pursuing her, she got into a panic and jumped down a well nearby",
with the baby in her arms. The result was that the baby died but the woman recovered.,
One of the charges against her was attempt to commit suicide. It was held that she,
"should not be convicted under this section of an attempt to commit suicide, for the",
"word ""attempt"" connotes some conscious endeavour to accomplish the act, and the",
accused in jumping down the well was not thinking at all of taking her own life but only,
of escaping from her husband.669. If a person openly declares that he will fast to death,
and then proceeds to refuse all nourishment until the stage is reached when there is,
"imminent danger of death ensuing, he can be held guilty under this section but when",
"the evidence falls short of this, it cannot be said to be sufficient to sustain the",
charge.670. A woman who had been suffering from chronic incurable disease retired to,
bed with her one and a half-year-old child but was found with the child inside a well,
about 200 feet away from her house in the early morning of the next day when they,
"were both taken out of the well, it was found that though the woman was alive the child",
"had died. On being prosecuted under sections 302 and 309 IPC, 1860, she denied",
having jumped into the well. She further pleaded that she was too ill and there was,
something wrong with her brain. The trial Judge did not give her the benefit of section,
"84 IPC, 1860 and convicted her of both the offences charged. In acquitting her the High",
Court of Bombay held that in the absence of any evidence that she deliberately jumped,
"into the well along with the child, she could not be convicted merely on the basis of",
"imagination or denied the benefit of section 84 IPC, 1860. In any case, the Judge",
"should have given her the benefit of doubt.671. Moreover, suspicion however strong is",
not proof.672. Where a desolate woman jumped into a well with her two children and,
was released with admonition for the offence under section 309 but was sentenced to,
"imprisonment for three months for the offence under section 307 IPC, 1860, the",
Supreme Court directed that she should also be released with admonition for the,
"offence under section 307 IPC, 1860.673. Witness clearly stated that deceased was",
"shouting, pleading with the accused to not kill her, when accused gave sword blows to",
her. There is no material available to establish that deceased volunteered herself for,
"death — Exception 5 to section 300 could not be invoked. Conviction and sentence, as",
"recorded by trial Court under sections 302 and 309 of IPC, 1860 against appellant was",
held proper.674.,
[s 309.1] Voluntary termination of life.—,
A person cannot claim his own life by saying that he had led a successful life and the,
mission of his life was fulfilled. It would amount to suicide as it would attract the,
provisions of sections 306 and 309. The Court said that no distinction could be made,
between suicide as ordinarily understood and the right to voluntarily put an end to one's,
life.675.,
[s 309.2] Fast-unto-death.—,
Where a person commenced fast-unto-death for certain demands but even before his,
"demands were conceded, he chose to get himself treated medically without protest, it",
was held that the mens rea to destroy himself was absent and it could not be said that,
he attempted to commit suicide.676.,
[s 309.3] Constitutional validity of section 309.—,
"In P Rathinam v UOI,677.,678. the constitutional validity of section 309 was challenged",
and the Supreme Court observed that the provision punishing attempt to commit,
suicide is cruel and irrational and is violative of Article 21 of the Constitution and it,
deserves to be effaced from the statute book to humanalise penal laws. It added that,
the act of attempted suicide has no baneful effect on society and it is also not against,
"religion, morality or public policy, besides suicide or attempt to commit it causes no",
harm to others.,
This decision was subsequently reversed and it has been held again that the provision,
for penalising attempt to commit suicide and abetment of suicide is not,
unconstitutional.679.,
The Constitution Bench in a subsequent decision in Gian Kaur v State of Punjab680. and,
other connected matters has overruled the view taken in the case of P Rathinam681.,
"that section 309 IPC, 1860 is constitutionally invalid. It was held that, on the facts",
which are not only proved but are also admitted by A1 the acquittal of A1 under section,
"309, IPC, 1860 has to be set aside and he will have to be convicted under that",
section.682.,
"[s 309.4] The Mental Healthcare Act, 2017",
"Parliament has now enacted the Mental Healthcare Act, 2017 which vide section 115",
lays down that:,
(1) Notwithstanding anything contained in section 309 of the Indian Penal Code any,
"person who attempts to commit suicide shall be presumed, unless proved otherwise, to",
have severe stress and shall not be tried and punished under the said Code.,
"(2) The appropriate Government shall have a duty to provide care, treatment and",
"rehabilitation to a person, having severe stress and who attempted to commit suicide,",
to reduce the risk of recurrence of attempt to commit suicide.,
"In view of the above provisions, if a person attempts to commit suicide, it shall be",
"presumed, unless proved otherwise, that he has severe stress and he shall not be tried",
"and punished under section 309 of the IPC, 1860. By inverting the presumption against",
"guilt but retaining the provision in the statute book, attempt to suicide is still a criminal",
"offence. In order to render conviction, prosecution will be required to lead evidence and",
prove that the survivor did not have severe stress and did not suffer any issue of,
mental health.,
[s 309.5] Euthanasia.—,
In India active euthanasia is illegal and a crime under section 302 or at least section,
"304 IPC, 1860. Physician assisted suicide is a crime under section 306 IPC, 1860",
"(abetment to suicide). The Constitution Bench in Gian Kaur v State of Punjab,683. held",
that both euthanasia and assisted suicide are not lawful in India which overruled the,
two Judge Bench decision of the Supreme Court in P Rathinam v UOI.684. The Court,
held that the right to life under Article 21 of the Constitution does not include the right,
"to die. But in Aruna Ramchandra Shanbaug v UOI,685. the Supreme Court held that",
passive euthanasia can be allowed under exceptional circumstances under the strict,
monitoring of the Court. The difference between 'active' and passive' euthanasia is that,
in active euthanasia something is done to end the patient's life while in passive,
"euthanasia, something is not done that would have preserved the patient's life. It is",
usually defined as withdrawing medical treatment with a deliberate intention to causing,
"the patient's death. In Common Cause (A Regd. Society) v UOI,686. a five-judge",
"Constitution Bench gave legal sanction to passive euthanasia, permitting 'living will' by",
patients on withdrawing medical support if they slip into irreversible coma. The,
Supreme Court held that the right to die with dignity is a fundamental right.,
[s 309.6] Procedure for passive euthanasia.—,
Article 226 gives abundant power to the High Court to pass suitable orders on the,
application filed by the near relatives or next friend or the doctors/hospital staff praying,
for permission to withdraw the life support to an incompetent person of the kind above,
mentioned. When such an application is filed the Chief Justice of the High Court should,
forthwith constitute a Bench of at least two Judges who should decide to grant,
approval or not. Before doing so the Bench should seek the opinion of a committee of,
three reputed doctors to be nominated by the Bench after consulting such medical,
authorities/medical practitioners as it may deem fit. Preferably one of the three doctors,
"should be a neurologist, one should be a psychiatrist, and the third a physician. For this",
purpose a panel of doctors in every city may be prepared by the High Court in,
consultation with the State Government/Union Territory and their fees for this purpose,
may be fixed. The committee of three doctors nominated by the Bench should carefully,
examine the patient and also consult the record of the patient as well as taking the,
views of the hospital staff and submit its report to the High Court Bench.,
"Simultaneously with appointing the committee of doctors, the High Court Bench shall",
"also issue notice to the State and close relatives, e.g., parents, spouse,",
"brothers/sisters, etc., of the patient, and in their absence his/her next friend, and supply",
a copy of the report of the doctor's committee to them as soon as it is available. After,
"hearing them, the High Court bench should give its verdict. The above procedure",
should be followed all over India until Parliament makes legislation on this subject.687.,
[s 309.7] Abetment of attempt to commit Suicide.—,
Section 306 prescribes punishment for abetment of suicide while section 309 punishes,
attempt to commit suicide. The history of use of the provisions of section 309 shows,
"that the section has been pressed into service primarily in the case of Sati, where the",
"widow commits suicide and others have various reasons – economic and social, to",
abet such hapless woman to commit suicide. If a hapless Sati victim is goaded to,
"commit suicide and the abetters abet her to jump into the funeral pyre of her husband,",
it would be preposterous for law to hold the abetters not guilty of any offence merely,
because she escapes or is saved from death later.688.,
"663. Subs. by Act 8 of 1882, section 7, for ""and shall also be liable to fine"".",
"664. Gangula Mohan Reddy v State of AP, AIR 2010 SC 327 [LNIND 2010 SC 3] : (2010) 1 SCC",
"327 ; Gian Kaur v State of Punjab, 1996 (2) SCC 648 [LNIND 1996 SC 653] : AIR 1996 SC 946",
[LNIND 1996 SC 653] .,
"665. Satvir Singh v State of Punjab, (2001) 8 SCC 633 [LNIND 2001 SC 2168] : 2001 Cr LJ 4625 .",
"666. Ramakka, (1884) 8 Mad 5.",
"667. Tayee, (1883) Unrep Cr C 188.",
"668. Dwarka Poonja, (1912) 14 Bom LR 146 [LNIND 1912 BOM 6] .",
"669. Dhirajia, (1940) All 647 .",
"670. Ram Sunder, AIR 1962 All 262 [LNIND 1961 ALL 65] .",
"671. Phulabai, 1976 Cr LJ 1519 (Bom).",
"672. Brij Bhusan Singh, AIR 1946 PC 38 .",
"673. Radharani, 1981 Cr LJ 1705 (SC) : AIR 1981 SC 1776 (2) : 1981 (Supp) SCC 84. Rukhmina",
"Devi v State of UP, 1989 Cr LJ 548 (All), mother locked herself up with her son after altercation",
with family. She killed the child and then attempted suicide. Convicted under this section and,
section 300 with a remark that because her husband had also rejected her and she was the,
"victim of rage, her sentence might be remitted by the State. For a case in which the",
"circumstances ruled out the possibility of suicide, see Subedar Tewari v State of UP, AIR 1989 SC",
"733 : 1989 Cr LJ 923 : 1989 (Supp) SCC 91. Kavita v State of TN, AIR 1998 SC 2473 [LNIND 1998",
SC 642] : 1998 Cr LJ 3624 no proof that the woman threw her children into the well and then,
"herself jumped into it to commit suicide. Conviction set aside. Ram Kumar v State of Gujarat, AIR",
1998 SC 2732 [LNIND 1998 SC 772] : 1998 Cr LJ 4048 the deceased-woman and her accused,
husband were alone in the house. There was ligature mark on her neck. Her body was on a cot,
and not hanging. The court said that the theory of suicide became demolished and that of,
"murder could be inferred. State of Maharashtra v Maruti; State of UP v Sikandar Ali, 1998 Cr LJ",
"2520 : AIR 1998 SC 1862 [LNIND 1998 SC 1231] double murder, conviction. Death penalty not",
"warranted, life imprisonment. State of HP v Jeet Singh, AIR 1999 SC 1293 : 1999 Cr LJ 2025 ,",
"whether death was homicidal or suicidal, injuries found on both leg of the dead body on the",
basis of which the doctor stated that death might have been due to smothering. This opinion,
was formed without chemical examiner's report. The finding of the High Court that the,
deceased might have committed suicide was held liable to be set aside.,
"674. Narendra v State of Rajasthan, 2012 Cr LJ 723 (Raj); Ujwala Sonyabapu Bhujade v State of",
"Maharashtra, 2011 Cr LJ 1791 (Bom)— offences under sections 302 and 309 IPC, 1860 not",
proved.,
"675. CA Thomas Master v UOI, 2000 Cr LJ 3729 (Ker).",
"676. Ramamoorthy v State of TN, 1992 Cr LJ 2074 (Mad). Banwarilal Sharma v State of UP,",
"(1998) 3 SCC 604 : JT 1998 (4) SC 466 ; Balamani v State, 2010 (4)Ker LT 329 .",
"677. Jagadeeswar v State of AP, 1988 Cr LJ 549 approved and Dubal v State of Maharashtra,",
1987 Cr LJ 743 overruled. The court also noted the distinction between suicide and euthanasia,
and section 306 and section 309.,
"678. P Rathinam v UOI, 1994 Cr LJ 1605 .",
"679. Gian Kaur v State of Punjab, 1994 Cr LJ 1660 (SC), the decision of Division Bench in P",
"Rathinam v UOI, 1994 AIR SCW 1764 : (1994) 3 SCC 394 [LNIND 1994 SC 1533] : 1994 Cr LJ",
1605 : AIR 1994 SC 1844 [LNIND 1994 SC 1533] overruled by Constitution Bench.,
680. Supra.,
681. Supra.,
"682. Aruna Ramchandra Shanbaug v UOI, (2011) 4 SCC 454 [LNIND 2011 SC 265] : AIR 2011 SC",
1290 [LNIND 2011 SC 265] .,
"683. Gian Kaur v State of Punjab, 1996 (2) SCC 648 [LNIND 1996 SC 653] .",
"684. P Rathinam v UOI, AIR 1994 SC 1844 [LNIND 1994 SC 1533] : 1994 (3) SCC 394 [LNIND",
1994 SC 1533] .,
"685. Aruna Ramchandra Shanbaug v UOI, (2011) 4 SCC 454 [LNIND 2011 SC 265] : AIR 2011 SC",
1290 [LNIND 2011 SC 265] .,
"686. Common Cause (A Regd. Society) v UOI, LNIND 2018 SC 87 .",
"687. Aruna Ramchandra Shanbaug v UOI, (2011) 4 SCC 454 [LNIND 2011 SC 265] : AIR 2011 SC",
1290 [LNIND 2011 SC 265] .,
"688. Berin P Varghese v State of Kerala, 2008 Cr LJ 1759 .",
THE INDIAN PENAL CODE,
CHAPTER XVI OF OFFENCES AFFECTING THE HUMAN BODY OF,
OFFENCES AFFECTING LIFE,
[s 310] Thug.,
"Whoever, at any time after the passing of this Act, shall have been habitually",
associated with any other or others for the purpose of committing robbery or child-,
"stealing by means of or accompanied with murder, is a thug.",
COMMENT.—,
This and the following section incorporate the provisions of the Thuggee Act of 1836.,
THE INDIAN PENAL CODE,
CHAPTER XVI OF OFFENCES AFFECTING THE HUMAN BODY OF,
OFFENCES AFFECTING LIFE,
[s 311] Punishment.,
"Whoever is a thug shall be punished with 689.[imprisonment for life], and shall also be",
liable to fine.,
COMMENT.—,
Gangs of persons habitually associated for the purpose of inveigling and murdering,
"travellers or others in order to take their property, etc., are called thugs. Thugs are",
"robbers and dacoits, but all robbers and dacoits are not thugs. Thugs committed",
robbery or dacoity or kidnapping are always accompanied with murder. Killing of the,
victim was the essential thing (still in MP & UP ravines).,
"689. Subs. by Act 26 of 1955, section 117 and Sch, for ""transportation for life"" (w.e.f. 1-1-1956).",
THE INDIAN PENAL CODE,
CHAPTER XVI OF OFFENCES AFFECTING THE HUMAN BODY OF,
OFFENCES AFFECTING LIFE,
"Of the Causing of Miscarriage, of Injuries to unborn Children, of the",
"Exposure of Infants, and of the Concealment of Births.",
[s 312] Causing miscarriage.,
"Whoever voluntarily causes a woman with child1 to miscarry, shall, if such",
miscarriage2 be not caused in good faith for the purpose of saving the life of the,
"woman, be punished with imprisonment of either description for a term which may",
"extend to three years, or with fine, or with both; and, if the woman be quick with",
"child,3 shall be punished with imprisonment of either description for a term which",
"may extend to seven years, and shall also be liable to fine.",
"Explanation.—A woman who causes herself to miscarry, is within the meaning of this",
section.,
COMMENT.—,
"This section deals with the causing of miscarriage with the consent of the woman,",
while the next section deals with the causing of miscarriage without such consent.,
"The Medical Termination of Pregnancy Act, 1971 (34 of 1971) provides for the",
termination of pregnancy by registered medical practitioners where its continuance,
would involve a risk to the life of the pregnant woman or grave injury to her physical or,
"mental health or where there is a substantial risk that if the child was born, it would",
suffer from such physical or mental abnormalities as to be seriously handicapped.,
Where the pregnancy is alleged to have been caused by rape or as a result of failure of,
"a contraceptive used by a married woman or her husband, it would be presumed to",
constitute a grave injury to the mental health of the pregnant woman. The termination,
of a pregnancy by a person who is not a registered medical practitioner will be an,
"offence under the IPC, 1860, which to that extent is modified. It is high time that this",
"section too was suitably amended in terms of Medical Termination of Pregnancy Act,",
1971 (34 of 1971) to include the various other grounds on account of which a,
pregnancy can now be terminated by registered medical practitioner. In this connection,
"see also comment under section 91 ante. The Medical Termination of Pregnancy Act,",
"1971 does not empower the husband, far less his relations, to prevent the concerned",
woman from causing abortion if her case is covered under section 3 of that Act. Under,
"section 312 of the IPC, 1860 causing miscarriage is a penal offence. Relevant civil law",
has since been embodied in the Act legalising termination of pregnancy under certain,
"circumstances. Since law is liberal for effecting such termination, the Act does not lay",
down any provision on husband's consent in any situation.690.,
"1. 'With child' means pregnant, and it is not necessary to show that 'quickening', that is,",
"perception by the mother of the movements of the foetus, has taken place or that the",
"embryo has assumed a foetal form, the stage to which pregnancy has advanced and",
the form which the ovum or embryo may have assumed are immaterial. Where a,
"woman was acquitted on a charge of causing herself to miscarry, on the ground that",
she had only been pregnant for one month and that there was nothing which could be,
"called foetus or child, it was held that the acquittal was bad in law.691.",
A woman quick with a child simply means a particular stage of pregnancy at which,
quickening takes place. It is a perception of the woman of the movement of foetus.,
Section 312 can even apply to a pregnant woman herself who causes her own,
miscarriage. Good faith by itself is not enough. It has to be good faith for the purpose,
of saving the life of the mother or the child and not otherwise. This observation of the,
High Court of Delhi occurs in a case692. in which the doctor was found to be negligent,
and careless in injecting needles twice for performing abdominocentesis. The result,
was that the patient had to undergo forced abortion because septic developed. There,
was consent only for one insertion and that was not at all applicable to second,
insertion.,
2. 'Miscarriage' is the premature expulsion of the child or foetus from the mother's,
womb at any period of pregnancy before the term of gestation is completed.,
[s 312.1] Death in attempt to terminate pregnancy.—,
A woman had pregnancy of 24 weeks out of illicit relations and a doctor administered,
an injection for termination of the pregnancy but the woman died the next day without,
miscarriage. It was held that the act of the doctor amounted to 'voluntarily causing,
"miscarriage' within the meaning of section 312 read with section 511, as the doctor",
"was presumed to know the possible effects of the medicine.693. Deceased, an",
"unmarried girl was pregnant from accused, she died while causing miscarriage due to",
perforation of uterus following abortion. It is a clear case that accused was,
instrumental in causing the woman to miscarry and obviously it was not done in good,
faith for purpose of saving life of deceased. Miscarriage was with a view to wipe out,
evidence of deceased being pregnant. Accused liable to be convicted under sections,
"312, 315, 316 and 201 of IPC, 1860.694.",
3. 'Quick with child'.—Quickening is the name applied to peculiar sensations,
experienced by a woman about the fourth or fifth month of pregnancy.,
"690. Dr Mangla Dogra v AK Malhotra, AIR 2012 CC 1401 : 2012 (3) Ker LT (SN) 124 (P&H).",
"691. Ademma, (1886) 9 Mad 369.",
"692. Meeru Bhatia Prasad v State, 2002 Cr LJ 1674 (Del).",
"693. Akhil Kumar v State of MP, 1992 Cr LJ 2029 (MP). Mohamed Sharif v State of Orissa, 1996",
"Cr LJ 2826 (Ori) termination under medical advice, death not caused, the accused not liable.",
"694. State of Maharashtra v Flora Santuno Kutino, 2007 Cr LJ 2233 (Bom).",
THE INDIAN PENAL CODE,
CHAPTER XVI OF OFFENCES AFFECTING THE HUMAN BODY OF,
OFFENCES AFFECTING LIFE,
"Of the Causing of Miscarriage, of Injuries to unborn Children, of the",
"Exposure of Infants, and of the Concealment of Births.",
[s 313] Causing miscarriage without woman's consent.,
Whoever commits the offence defined in the last preceding section without the,
"consent of the woman, whether the woman is quick with child or not, shall be",
"punished with 695.[imprisonment for life], or with imprisonment of either description",
"for a term which may extend to ten years, and shall also be liable to fine.",
COMMENT.—,
Under this section the act should have been done without the consent of the woman.,
Under it the person procuring the abortion is alone punished; under section 312 such,
person as well as the woman who causes herself to miscarry are both punished. Where,
"the accused woman kicked a pregnant woman in her abdomen resulting in miscarriage,",
her conviction under section 313 was sustained.696.,
[s 313.1] CASES.—,
Section 313 would be attracted only if it is established that the pregnancy is terminated,
without the consent of the prosecutrix.697.,
"695. Subs. by Act 26 of 1955, section 117 and Sch, for ""transportation for life"" (w.e.f. 1-1-1956).",
"696. Tulsi Devi v State of UP, 1996 Cr LJ 940 (All).",
"697. Shantaram Krishna Karkhandis v State of Maharashtra, 2007 Cr LJ 149 (Bom). See also",
"Pranab Kanti Sen v State of WB, 2010 Cr LJ 162 (Cal).",
THE INDIAN PENAL CODE,
CHAPTER XVI OF OFFENCES AFFECTING THE HUMAN BODY OF,
OFFENCES AFFECTING LIFE,
"Of the Causing of Miscarriage, of Injuries to unborn Children, of the",
"Exposure of Infants, and of the Concealment of Births.",
[s 314] Death caused by act done with intent to cause miscarriage—.,
"Whoever, with intent to cause the miscarriage of a woman with child, does any act",
"which causes the death of such woman, shall be punished with imprisonment of",
"either description for a term which may extend to ten years, and shall also be liable to",
"fine,",
if act done without woman's consent.,
"And if the act is done without the consent of the woman, shall be punished either",
"with 698.[imprisonment for life], or with the punishment above mentioned.",
Explanation.— It is not essential to this offence that the offender should know that,
the act is likely to cause death.,
COMMENT.—,
This section provides for the case where death occurs in causing miscarriage. The act,
of the accused must have been done with intent to cause the miscarriage of a woman,
with child.,
[s 314.1] CASES.—,
The son-in-law of a pregnant woman left her at the house of the accused doctor. Her,
dead body was recovered from the place where it was buried in the accused's house. It,
was in a decomposed state. The accused made extra-judicial confessions to three,
different persons to the effect that the death took place during abortion. Circumstantial,
evidence also proved this fact beyond reasonable doubt. His conviction under the,
"section was confirmed as also the five-year RI sentence, but fine was set aside.699. A",
homeopath operated upon a pregnant woman to cause abortion but she died a few,
hours after operation because her uterus got perforated. His conviction under section,
314 was upheld.700. A nurse attempted to cause miscarriage of a pregnant girl but was,
"unsuccessful. On the third day another person, the accused, an attendant, made an",
attempt and succeeded but the condition of the girl became serious after five days.,
She was hospitalised and died of septicaemia which had developed from ruptures and,
tears in the internal parts of vagina. There was no evidence to show that ruptures and,
tears had occurred at the hands of the accused. It was held that his conviction under,
section 314 was not proper.701.,
"A person, named, C, was alleged to have had illicit relations with the deceased woman.",
He took her to a doctor for the purpose of aborting her pregnancy. The doctor caused,
"her death in that process. The doctor was not qualified for the purpose, nor his clinic",
"was approved by the Government under the Medical Termination of Pregnancy Act,",
1971 and was also not having the basic facilities for abortion. There was a concurrent,
finding that the act was done by the doctor in furtherance of the common intention with,
C. It was held that the conviction of C under this section read with section 34 was,
proper.702.,
[s 314.2] Section 313 and Section 314.—,
Ingredients for both these offences are contra-indicative and cannot go together. When,
"conviction is recorded under section 304-A, it pre-supposes a negligent act, which",
would rule out any intentional act; whereas the conviction for offences under sections,
313 and 314 can be founded only on intentional act of the accused and not negligence.,
"Presence of mens rea would be sine qua non in such a situation. The trial Court,",
"therefore, apparently erred in recording conviction of the appellants for offences",
"punishable under sections 304-A and 313 and 314 of IPC, 1860.703.",
"698. Subs. by Act 26 of 1955, section 117 and Sch, for ""transportation for life"" (w.e.f. 1-1-1956).",
"699. Moideen Sab v State of Karnataka, 1993 Cr LJ 1430 (Kant).",
"700. Jacob George v State of Kerala, 1994 Cr LJ 3851 : (1994) 3 SCC 430 [LNIND 1994 SC 417] .",
"701. Vatchhalabai Maruti Kshirsagar v State of Maharashtra, 1993 Cr LJ 702 (Bom).",
"702. Surendra Chauhan v State of MP, AIR 2000 SC 1436 [LNIND 2000 SC 515] : 2000 Cr LJ 1789",
"; Telenga Munda v State of Bihar, 2001 Cr LJ 3094 (Pat), the pregnant girl was taken to a doctor",
"who operated crudely causing rupture of big vessels resulting in death, abortion stick was also",
"found in her internal part, the doctor did not inform police, direct nexus between his act and",
"death, conviction of the doctor proper.",
"703. Mahesh Govindbhai Barot v State of Gujarat, 2009 Cr LJ 3535 (Guj).",
THE INDIAN PENAL CODE,
CHAPTER XVI OF OFFENCES AFFECTING THE HUMAN BODY OF,
OFFENCES AFFECTING LIFE,
"Of the Causing of Miscarriage, of Injuries to unborn Children, of the",
"Exposure of Infants, and of the Concealment of Births.",
[s 315] Act done with intent to prevent child being born alive or to cause it to,
die after birth.,
Whoever before the birth of any child does any act with the intention of thereby,
"preventing that child from being born alive or causing it to die after its birth, and does",
"by such act prevent that child from being born alive, or causes it to die after its birth,",
"shall, if such act be not caused in good faith for the purpose of saving the life of the",
"mother, be punished with imprisonment of either description for a term which may",
"extend to ten years, or with fine, or with both.",
COMMENT.—,
Any act done with the intention here mentioned which results in the destruction of the,
"child's life, whether before or after its birth, is made punishable. So far as offence",
"punishable under section 315 of the IPC, 1860 is concerned, the offence is committed",
by a person who before the birth of any child does any act with the intention of thereby,
"preventing that child from being born alive or causing it to die after its birth, and does",
"by such act prevent that child from being born alive, or causes it to die after its birth, if",
such act be not caused in good faith for the purpose of saving the life of the,
"mother.704. Cognizance taken of the offence under section 315 of IPC, 1860 and the",
charge framed therein against the petitioner are also not maintainable in view of the,
fact that no documentary evidence could be collected in course of investigation in,
support of the allegation that the pregnancy of the prosecutrix was terminated at the,
instance of the petitioner. She was even not medically examined by the Doctor or the,
Board of Doctors and there is no medical report in support of the allegation that her,
pregnancy was ever terminated at any earlier point of time. As the alleged offence,
"under section 315 of the IPC, 1860 relates to termination of pregnancy, such offence",
may be supported through the medical opinion of the registered practitioner and for,
"want of such prima facie material charge cannot be framed in such section, accordingly",
"the cognizance cannot be taken for the offence under section 315 of the IPC, 1860.705.",
Intention is one of the major ingredients of sections 315. Wording of section 315 of the,
"IPC, 1860 itself shows that whoever before the birth of any child does any act with the",
intention of thereby preventing that child from being born alive or causing it to die after,
"its birth, and does by such act prevent that child from being born alive, or causes it to",
"die after its birth, shall, if such act be not caused in good faith for the purpose of saving",
the life of the mother be punished with imprisonment. In this case the patient was,
admitted for delivery. During course of delivery there was rupture of uterus which led to,
"bleeding and subsequent death of the patient and the child. So, it is not case of any",
prosecution witness that the respondent deliberately committed offence punishable,
"under section 315 of the IPC, 1860.706.",
"704. State of Maharashtra v Rajendra Ramkisan Jaiswal, 2010 Cr LJ 3603 (Bom).",
"705. Girish Kumar Sharan v State of Jharkhand, AIR 2010 Cr LJ 4215 (Jhar).",
"706. State of Maharashtra v Rajendra Ramkisan Jaiswal, 2010 Cr LJ 3603 (Bom)",
THE INDIAN PENAL CODE,
CHAPTER XVI OF OFFENCES AFFECTING THE HUMAN BODY OF,
OFFENCES AFFECTING LIFE,
"Of the Causing of Miscarriage, of Injuries to unborn Children, of the",
"Exposure of Infants, and of the Concealment of Births.",
[s 316] Causing death of quick unborn child by act amounting to culpable,
homicide.,
"Whoever does any act under such circumstances, that if he thereby caused death he",
"would be guilty of culpable homicide, and does by such act cause the death of a quick",
"unborn child, shall be punished with imprisonment of either description for a term",
"which may extend to ten years, and shall also be liable to fine.",
ILLUSTRATION,
"A, knowing that he is likely to cause the death of a pregnant woman does an act which,",
if it caused the death of the woman would amount to culpable homicide. The woman is,
"injured, but does not die; but the death of an unborn quick child with which she is",
pregnant is thereby caused. A is guilty of the offence defined in this section.,
COMMENT.—,
This section punishes offences against children in the womb where the pregnancy has,
advanced beyond the stage of quickening and where the death is caused after the,
quickening and before the birth of the child. Any act or omission of such a nature and,
"done under such circumstances as would amount to the offence of culpable homicide,",
"if the sufferer were a living person, will, if done to a quick unborn child whose death is",
"caused by it, constitute the offence here punished.",
Unless the act is done against the mother with an intention or with a knowledge which,
"brings it within the purview of section 299, it cannot constitute an offence under this",
section merely because the death of a quick unborn child has resulted from an act,
against the mother.707. A husband striking his wife dead was held guilty of the offence,
under this section. The medical evidence showed that she was carrying a male child of,
20 weeks. A foetus gets life after 12 weeks of conception.708.,
The principle laid down in section 301 is again applied here.,
[s 316.1] Charge.—,
The trial Court did not frame charge against accused no. 3 for the offence under,
"section 312 of the IPC, 1860 but that will not come in the way in convicting him for the",
"offence under section 312, IPC, 1860. Because the offences from sections 312 to 318",
"are of similar nature, type and category, they are all relating to miscarriage. Secondly,",
the punishment prescribed under section 312 is not higher than the maximum,
punishment prescribed under section 316. Because the punishment prescribed is up to,
10 years if the act causes death of quick unborn child. The maximum punishment,
prescribed under section 312 is seven years if the woman be quick with child.709.,
"707. Jabbar, AIR 1966 All 590 [LNIND 1980 MAD 327] .",
"708. Murugan v State of TN, 1991 Cr LJ 1680 (Mad).",
"709. State of Maharashtra v Flora Santuno Kutino, 2007 Cr LJ 2233 (Bom).",
THE INDIAN PENAL CODE,
CHAPTER XVI OF OFFENCES AFFECTING THE HUMAN BODY OF,
OFFENCES AFFECTING LIFE,
"Of the Causing of Miscarriage, of Injuries to unborn Children, of the",
"Exposure of Infants, and of the Concealment of Births.",
"[s 317] Exposure and abandonment of child under 12 years of age, by parent or",
person having care of it.,
"Whoever being the father or mother of a child under the age of twelve years, or having",
"the care of such child, shall expose or leave such child in any place with the intention",
"of wholly abandoning such child, shall be punished with imprisonment of either",
"description for a term which may extend to seven years, or with fine, or with both.",
Explanation.—This section is not intended to prevent the trial of the offender for,
"murder or culpable homicide, as the case may be, if the child dies in consequence of",
the exposure.,
COMMENT.—,
This section is intended to prevent the abandonment or desertion by a parent of his or,
"her children of tender years, in such a manner that the children, not being able to take",
"care of themselves, may run the risk of dying or being injured. It does not apply when",
children are left under the care of others.710. It applies where a child is exposed and no,
"death supervenes; if, however, death follows, the conviction must be under section",
304.711. The offence is complete notwithstanding that no actual danger or risk of,
danger arises to the child's life.,
[s 317.1] Ingredients.—,
The section requires three essentials—,
(1) The person coming within its purview must be father or mother or must have the,
care of the child.,
(2) Such child must be under the age of 12 years.,
(3) The child must have been exposed or left in any place with the intention of,
wholly abandoning it.,
"710. Felani Hariani, (1871) 16 WR (Cr) 12; Mussumat Khairo, (1872) PR No. 33 of 1872;",
"Mussamat Bhagan, (1878) PR No. 4 of 1879.",
"711. Banni, (1879) 2 All 349 .",
THE INDIAN PENAL CODE,
CHAPTER XVI OF OFFENCES AFFECTING THE HUMAN BODY OF,
OFFENCES AFFECTING LIFE,
"Of the Causing of Miscarriage, of Injuries to unborn Children, of the",
"Exposure of Infants, and of the Concealment of Births.",
[s 318] Concealment of birth by secret disposal of dead body.,
"Whoever, by secretly burying or otherwise disposing of the dead body of a child",
"whether such child die before or after or during its birth, intentionally conceals or",
"endeavours to conceal the birth of such child, shall be punished with imprisonment of",
"either description for a term which may extend to two years, or with fine, or with both.",
COMMENT.—,
This section is intended to prevent infanticide. It is directed against concealment of,
birth of a child by secretly disposing of its body.,
[s 318.1] Ingredients.—,
The section requires—,
(1) Secret burying or otherwise disposing of the dead body of a child.,
(2) It is immaterial whether such child dies before or after or during its birth.,
(3) Intention to conceal the birth of such child by such secret burying or disposal.,
Simple,
Hurt,
Grievous,
Of Hurt,
Aggravated forms,
1. By dangerous weapons.,
2. To extort property or to constrain to do,
illegal act.,
3. By means of poison to commit offence.,
"4. To extort confession, or to compel",
restoration of property.,
5. To deter public servant from his duty.,
THE INDIAN PENAL CODE,
CHAPTER XVI OF OFFENCES AFFECTING THE HUMAN BODY OF,
OFFENCES AFFECTING LIFE,
"Of the Causing of Miscarriage, of Injuries to unborn Children, of the",
"Exposure of Infants, and of the Concealment of Births.",
[s 319] Hurt.,
"Whoever causes bodily pain, disease or infirmity to any person is said to cause hurt.",
COMMENT.—,
The authors of the Code say:,
Many of the offences which fall under the head of hurt will also fall under the head of,
"assault. A stab, a blow which fractures a limb, the flinging of boiling water over a person, are",
"assaults, and are also acts which cause bodily hurt. But bodily hurt may be caused by many",
"acts which are not assaults. A person, for example, who mixes a deleterious potion, and",
places it on the table of another; a person who conceals a scythe in the grass on which,
"another is in the habit of walking; a person who digs a pit in a public path, intending that",
"another may fall into it, may cause serious hurt, and may be justly punished for causing",
"such hurt; but they cannot, without extreme violence to language, be said to have committed",
"assaults. We propose to designate all pain, disease and infirmity by the name of hurt.712.",
"The definition of hurt appears to contemplate the causing of pain, etc., by one person",
to another. Pulling a woman by the hair was held to be this offence.713.,
[s 319.1] Act neither intended nor likely to cause death is hurt even though,
death is caused.—,
Where there is no intention to cause death nor knowledge that death is likely to be,
"caused from the harm inflicted, and death is caused, the accused would be guilty of",
hurt only if the injury caused was not serious. Where the accused with a view to,
"chastising her daughter, eight or 10 years old, for impertinence, gave her a kick on the",
"back and two slaps on the face, the result of which was death, it was held that she was",
guilty of voluntarily causing hurt.714. Where in course of a sudden quarrel the accused,
hit his friend on his head with a stick weighing only 210 grams which unfortunately,
"proved fatal, it was held that no knowledge of death could be ascribed to him. His",
"conviction was accordingly changed to one under section 323, IPC, 1860.715.",
[s 319.2] Poisoned sweetmeats.—,
"A boy of about 16 years of age, being in love with a girl some three or four years",
"younger, and apparently intending to administer to her something in the nature of a love",
"philtre, induced another boy younger than himself to give the girl some sweetmeats.",
The girl and some of the other members of her family ate the sweetmeats and all the,
persons who partook of them were seized with more or less violent symptoms of,
"dhatura poisoning, though none of them died. It was held that the boy was guilty of",
causing hurt.716.,
"712. Note M, p 151.",
"713. (1883) Weir, 3rd Edn, p 196. It is the duty of the court to pass a judgment of its own",
whether the hurt in question is of one category or the other. The medical evidence is only an,
"opinion to help the court to formulate its own opinion. Hadia Mia v State of Assam, 1988 Cr LJ",
"1459 (Gau). See Ashok v Prahlad, 1988 Cr LJ 78 (Bom), where the report of the medical officer",
was ignored. The injuries caused to the victim by the constable's beating were not visible.,
"Sailendra Nath Hati v Aswini, 1988 Cr LJ 343 (Cal), woman slapped and kicked on waist after she",
"fell, accused guilty of causing hurt.",
"714. Beshor Bewa, (1872) 18 WR (Cr) 29.",
"715. Dhyaneshwar, 1982 Cr LJ 1870 (Bom).",
"716. Anis Beg v State, (1923) 46 All 77 .",
THE INDIAN PENAL CODE,
CHAPTER XVI OF OFFENCES AFFECTING THE HUMAN BODY OF,
OFFENCES AFFECTING LIFE,
"Of the Causing of Miscarriage, of Injuries to unborn Children, of the",
"Exposure of Infants, and of the Concealment of Births.",
[s 320] Grievous hurt.,
"The following kinds of hurt only are designated as ""grievous"":",
First.—Emasculation.,
Secondly.—Permanent privation of the sight of either eye.,
"Thirdly.—Permanent privation of the hearing of either ear,",
Fourthly.—Privation of any member or joint.,
Fifthly.—Destruction or permanent impairing of the powers of any member or joint.,
Sixthly.—Permanent disfiguration of the head or face.,
Seventhly.—Fracture or dislocation of a bone or tooth.,
Eighthly.—Any hurt which endangers life or which causes the sufferer to be during the,
"space of twenty days in severe bodily pain, or unable to follow his ordinary pursuits.",
COMMENT.—,
Grievous hurt is hurt of a more serious kind. This section merely gives the description,
of grievous hurt.,
The authors of the Code observe:,
We have found it very difficult to draw a line between those bodily hurts which are serious,
"and those which are slight. To draw such a line with perfect accuracy is, indeed, absolutely",
"impossible; but it is far better that such a line should be drawn, though rudely, than that",
"offences some of which approach in enormity to murder, while others are little more than",
"frolics which a good-natured man would hardly resent, would be classed together.717.",
"To make out the offence of voluntarily causing grievous hurt, there must be some",
"specific hurt, voluntarily inflicted, and coming within any of the eight kinds enumerated",
in this section. Where the injury was caused on the abdomen with a sharp-edged,
weapon and the doctor stated that the injury was penetrating into the abdominal cavity,
"touching the interior surface of the stomach, not involving any important structure or",
"organ involving danger to life, it was held that the accused had caused simple hurt and",
not grievous hurt.718. A person cannot be said to have caused grievous hurt unless the,
"hurt caused is one of the kinds of hurt specified under section 320, IPC, 1860.",
"Therefore, it is the duty of the Court to give a finding on its own whether the hurt was",
simple or grievous. The Court is not concerned with the classification made by a doctor,
as to whether the hurt was simple or grievous. A doctor is to describe the facts in,
respect of the nature of injury and the Court is to decide whether the nature of the,
"injury described by the doctor comes within any of the clauses of section 320, IPC,",
1860.719.,
[s 320.1] Clause 1.—,
'Emasculation' means depriving a male of masculine vigour.,
[s 320.2] Clause 6.—Disfigurement of head or face.—,
Disfiguration means doing a man some external injury which detracts from his personal,
"appearance but does not weaken him, as the cutting of a man's nose or ears. Where a",
girl's cheeks were branded with a red-hot iron which left scars of a permanent,
"character, it was held that the disfigurement contemplated by this section was",
caused.720.,
"[s 320.3] Clause 7.—Fracture, dislocation bone, tooth.—",
For the application of this clause it is not necessary that a bone should be cut through,
and through or that the crack must extend from the outer to the inner surface or that,
there should be displacement of any fragment of the bone. If there is a break by cutting,
"or splintering of the bone or there is a rupture or fissure in it, it would amount to a",
fracture within the meaning of this clause.721. It has been held that a mere partial cut,
"of the bone amounts to fracture and is, therefore, a grievous injury within the meaning",
of section 320 (Seventhly).722.,
"[s 320.4] Clause 8.—Endangering life, severe bodily pain, etc.—",
"This clause speaks of two things: (1) any hurt which endangers life, and (2) any hurt",
"which causes the sufferer to be during the space of 20 days (a) in severe bodily pain, or",
(b) unable to follow his ordinary pursuits. Some hurts which are not like those hurts,
"which are mentioned in the first seven clauses, are obviously distinguished from a",
"slight hurt, may nevertheless be more serious. Thus, a wound may cause intense pain,",
"prolonged disease or lasting injury to the victim, although it does not fall within any of",
the first seven clauses. Before a conviction for the sentence of grievous hurt can be,
"passed, one of the injuries defined in section 320 must be strictly proved, and the",
eighth clause is no exception to the general rule of law that a penal statute must be,
construed strictly.723.,
The line between culpable homicide not amounting to murder and grievous hurt is a,
very thin line. In the one case the injuries must be such as are likely to cause death; in,
"the other, the injuries must be such as to endanger life.724.",
An injury can be said to endanger life if it is in itself that it may put the life of the injured,
in danger.725.,
The mere fact that a man has been in hospital for 20 days is not sufficient; it must be,
proved that during that time he was unable to follow his ordinary pursuits.726. Where,
"the accused caused hurt to a woman who remained in hospital only for 17 days, out of",
"which she was in danger for three days, it was held that he had caused grievous",
hurt.727. A disability for 20 days constitutes grievous hurt: if it continues for a smaller,
"period, then the offence is hurt.728. The two accused persons tied their victim to an",
electric pole and assaulted him only to teach him a lesson for spreading scandalous,
information about the alleged love affair of the accused. Their victim died. There was,
"no evidence to attribute any particular overt act to any of them, nor of the intention of",
any of them to cause death or that any of them was armed with a deadly weapon. It,
was held that their offence fell within this clause because they endangered the life of,
"their victim and not under section 300 (murder).729. Where the accused persons, after",
"raping a girl of 11 years, thrust a stick into her private part and she died of injuries",
"thereby caused, it was held that while the accused could be convicted under this",
"clause, in the absence of evidence that the injury was sufficient in the ordinary course",
"of nature to cause death, they could not be convicted under section 302.730.",
[s 320.5] Acts neither intended nor likely to cause death may amount to,
grievous hurt even though death is caused.—,
Where there is no intention to cause death or no knowledge that death is likely to be,
"caused from the harm inflicted, and death is caused, the accused would be guilty of",
"grievous hurt if the injury caused was of a serious nature, but not of culpable homicide.",
Where the only intention of the accused who was convicted for the offence of murder,
"was to steal the jewels of the deceased and the only violence which he committed, viz.,",
"cutting the nostrils of the deceased, was necessary in order to facilitate the theft and",
"the death of the deceased was entirely unexpected, it was held that the accused was",
not guilty of murder but of causing grievous hurt under section 325.731. Where the,
medical evidence showed that the injury on the forehead which caused death was by a,
lathi and not by an iron rod as deposed to by witnesses and the internal injury could not,
"be correlated to the external injury caused by the accused, it was held to be a fit case",
"where the accused should be convicted only under section 325 IPC, 1860.732. Where",
the accused acting on a sudden spur of the moment squeezed the testicles of the,
deceased as a result of which he had a shock resulting in cardiac arrest and sudden,
"death, the Supreme Court came to the conclusion that it was a case falling under the",
"eighth clause of the section, i.e., causing hurt which endangers life. It was a case of",
grievous hurt punishable under section 325 and not that of simple hurt punishable,
"under section 323.733. See also discussion and cases under sub-head ""Act neither",
"intended nor likely to cause death is hurt even though death is caused"" under section",
"319, ante.",
[s 320.6] Spleen.—,
"Where the accused, pulling the deceased out of a cot, kicked him, and struck him on",
"the side or on the ribs with a stick, whereby the deceased, whose spleen was diseased,",
"died, it was held that he was guilty of voluntarily causing grievous hurt.734.",
[s 320.7] Blow aimed at a person falling upon another.—,
"The accused struck a woman, carrying an infant in her arms, violently over her head",
and shoulders. One of the blows fell on the child's head causing death. It was held that,
the accused had committed hurt on the infant under circumstances of sufficient,
aggravation to bring the offence within the definition of grievous hurt.735. In the course,
"of an altercation between the accused and the complainant on a dark night, the former",
"aimed a blow with his stick at the head of the latter. To ward off the blow, the",
"complainant's wife, who had a child on her arm, intervened between them. The blow",
"missed its aim, but fell on the head of the child causing severe injuries, from the effects",
of which it died. It was held that the accused was guilty of simple hurt only.736. The,
accused had the intention of causing hurt to a person but not grievous hurt and the,
"nature of the blow, taken with reference to the person against whom it was aimed,",
cannot be taken to indicate the necessary intention or knowledge as to causing,
grievous hurt.,
[s 320.8] Use of weapon.—,
"To cause ""grievous hurt"" it is not necessary that any weapon of offence must be used.",
"Even without any weapon, an injury of the nature mentioned in section 320 could be",
caused. The offence under section 325 is voluntarily causing grievous hurt. It does not,
speak of use of any weapon of offence.737.,
[s 320.9] Supply of arrack mixed with dangerous substance.—,
The arrack supplied was mixed with methyl alcohol resulting in many deaths. The Court,
concluded that the person responsible for the mixing had knowledge that the,
consumption of such substance was likely to cause serious adverse effects. Some of,
the victims lost eyesight. The Court said that the maximum sentence under the section,
was properly awarded.738.,
"717. Note M, p 151.",
"718. Jagdish Chand v State of HP, 1992 Cr LJ 3076 (HP).",
"719. Hadis Mia v State of Assam, 1987 Cr LJ 1459 (Gau).",
"720. Anta Dadoba, (1863) 1 BHC 101.",
"721. Hori Lal, AIR 1970 SC 1969 [LNIND 1969 SC 314] : 1970 Cr LJ 1665 .",
"722. Narinder Singh v Sukhbir Singh, 1992 Cr LJ 2616 (P&H).",
"723. State of Karnataka v Parashram Kallappa Ghevade, 2007 Cr LJ 479 (Kar); Mathai v State of",
"Kerala, 2005 SCC (Cr) 695 : AIR 2005 SC 710 [LNIND 2005 SC 37] .",
"724. Abdul Wahab, (1945) 47 Bom LR 998 , FB.",
"725. Ramla, (1963) 1 Cr LJ 387 . See further; AG Bhagwat v UT Chandigarh, 1989 Cr LJ 214 at p",
"223 where holding that by causing hurt by sulphuric acid, the accused was guilty of offence",
"punishable under section 326, causing hurt by dangerous means, cited Queen Empress v Vasta",
"Chela, (1895) ILR 19 Bom 247 to the effect that staying on in hospital at public expense for 20 or",
"more days is not the last word. Also to the same effect Khair Din v Emperor, AIR 1931 Lah 280 :",
"1931–32 Cr LJ 1254 , Mathu Paily v State of Kerala, 1962 (1) Cr LJ 652 Ker; and State (Delhi",
"Admn) v Mewa Singh, (1969) 71 Punj LR (D) 290 , Tuna v State of Orissa, 1988 Cr LJ 524 Orissa,",
mere stay in hospital for 20 days.,
"726. Vasta Chela, (1894) 19 Bom 247. The accused in a quarrel inflicted an injury on the victim",
by the blade of a scissors and there was no evidence that the victim was in severe bodily pain or,
"was unable to follow his ordinary pursuits for 20 days, clause (8) of section 320 was not",
"attracted; Pritam Singh v State, 1996 Cr LJ 7 (Del), in the instant case, the injury was of simple",
nature and the victim remained hospitalised for 20 days. The injured person was neither,
"hospitalised for 20 days nor was unable to follow his ordinary pursuit, section 320, 'Eighthly' was",
"not attracted, Babloo v State of MP, 1995 Cr LJ 3534 (MP).",
"727. Bassoo Rannah, (1865) 2 WR (Cr) 29.",
"728. Bishnooram Surma, (1864) 1 WR (Cr) 9.",
"729. Formina Sebastio Azardeo v State of Goa, 1992 Cr LJ 107 SC : AIR 1992 SC 133 . See also",
"Dau Dayal v State of Rajasthan, 1991 Cr LJ 2321 , where injuries were not dangerous to life and",
hospitalisation was also for 13 days and were given in response to an attack on the accused by,
"a chain and, therefore, conviction under section 320/326 was set aside.",
"730. Ghuraiyaa v State of MP, 1990 Cr LJ 1129 .",
"731. Guruvulu, (1945) Mad 73.",
"732. Mohinder Singh, 1985 Cr LJ 1903 : AIR 1986 SC 309 . Formina Sebastio Azardeo v State of",
"Goa, AIR 1992 SC 133 : 1992 Cr LJ 107 tying a person to an electric pole apparently with a view",
to teaching him a lesson for giving publicity to the love affair involving two of the three accused,
"and beating him, but he died, the three accused being related to each other husband and wife",
"and their nephew and the alleged love affair was between the wife and the nephew, no evidence",
of the respective role played by them. The husband was acquitted and the remaining two were,
convicted for causing grievous hurt.,
"733. State of Karnataka v Shivlingaiah, AIR 1988 SC 115 [LNIND 2012 DEL 2078] : 1988 Cr LJ",
"394 : 1988 SCC (Cr) 881. See also Madhusudan Sahu v State of Orissa, 1987 Cr LR (SC) 623 :",
"1987 (Supp) SCC 80, injury caused in a moment of aberration due to loss of self-control.",
"734. O'Brien, (1880) 2 All 766 ; Idu Beg, (1881) 3 All 776 .",
"735. Sahae Rae v State, (1873) 3 Cal 623 .",
"736. Chatur Natha, (1919) 21 Bom LR 1101 [LNIND 1919 BOM 89] .",
"737. Sreekumar v State of Kerala, 2009 Cr LJ 3862 (Ker).",
"738. EK Chandrasenan v State of Kerala, AIR 1995 SC 1066 [LNIND 1995 SC 88] : (1995) 2 Cr LJ",
1445 . The fact that the prime mover was 72 years old was held to be not an attenuating,
circumstance because of the magnitude of misery caused.,
THE INDIAN PENAL CODE,
CHAPTER XVI OF OFFENCES AFFECTING THE HUMAN BODY OF,
OFFENCES AFFECTING LIFE,
"Of the Causing of Miscarriage, of Injuries to unborn Children, of the",
"Exposure of Infants, and of the Concealment of Births.",
[s 321] Voluntarily causing hurt.,
"Whoever does any act with the intention of thereby causing hurt to any person, or with",
"the knowledge that he is likely thereby to cause hurt to any person, and does thereby",
"cause hurt to any person, is said ""voluntarily to cause hurt"".",
THE INDIAN PENAL CODE,
CHAPTER XVI OF OFFENCES AFFECTING THE HUMAN BODY OF,
OFFENCES AFFECTING LIFE,
"Of the Causing of Miscarriage, of Injuries to unborn Children, of the",
"Exposure of Infants, and of the Concealment of Births.",
[s 322] Voluntarily causing grievous hurt.,
"Whoever voluntarily causes hurt, if the hurt which he intends to cause or knows",
"himself to be likely to cause is grievous hurt, and if the hurt which he causes is",
"grievous hurt, is said ""voluntarily to cause grievous hurt.""",
Explanation.—A person is not said voluntarily to cause grievous hurt except when he,
both causes grievous hurt and intends or knows himself to be likely to cause grievous,
"hurt. But he is said voluntarily to cause grievous hurt, if intending or knowing himself",
"to be likely to cause grievous hurt of one kind, he actually causes grievous hurt of",
another kind.,
ILLUSTRATION,
"A, intending or knowing himself to be likely permanently to disfigure Z's face, gives Z a",
"blow which does not permanently disfigure Z's face, but which cause Z to suffer severe",
bodily pain for the space of twenty days. A has voluntarily caused grievous hurt.,
COMMENT.—,
Section 321 and the Explanation to this section make it clear that either the ingredient,
of intention or of knowledge must be essentially present in order to constitute the,
"offence of hurt.739. Where the accused caught hold of a man, sat on his chest, gave fist",
blows and hit his head on the wall but the injuries caused were not so grievous as to,
"pointedly show that the accused had knowledge that his act was likely to cause death,",
"his conviction under section 304, Part II was altered to one under section 321.740.",
"739. Devasahayam, (1962) 1 Mad LJ 161.",
"740. K Swaminatha Reddy v State of AP, 1996 Cr LJ 1387 (AP). Rajendran v State of TN, 1997 Cr",
"LJ 171 (Mad), the accused attacked his sister-in-law with iron rod in a fit of anger, statements of",
"the injured and of witnesses and medical evidence, conviction of accused proper.",
THE INDIAN PENAL CODE,
CHAPTER XVI OF OFFENCES AFFECTING THE HUMAN BODY OF,
OFFENCES AFFECTING LIFE,
"Of the Causing of Miscarriage, of Injuries to unborn Children, of the",
"Exposure of Infants, and of the Concealment of Births.",
[s 323] Punishment for voluntarily causing hurt.,
"Whoever, except in the case provided for by section 334, voluntarily causes hurt, shall",
be punished with imprisonment of either description for a term which may extend to,
"one year, or with fine which may extend to one thousand rupees, or with both.",
COMMENT.—,
"This is a general section for the punishment of voluntarily causing hurt. Sections 324,",
"327, 328, 329 and 330 deal with the same offence committed under certain",
"aggravating circumstances: and sections 334, 336 and 337 provide for punishment",
when there are certain mitigating circumstances.,
A prosecution under this section does not abate by reason of the death of the person,
injured.741.,
[s 323.1] CASES.—,
Allegation that accused/superintendent of police arrested the younger brother of,
complainant and got him mercilessly beaten by his personal guards. Injuries on,
different parts of body clearly rules out the theory of sustaining it while falling down on,
"ground. Besides the testimony of injured, the prosecution case has further been",
corroborated by medical evidence. Record and evidence proved that conspiracy was,
hatched by accused to apprehend the detenu and others who were demanding his,
"transfer. Accused liable to be convicted under section 323 of IPC, 1860.742. First",
accused picked up a wooden piece (Pacher) with both the hands and hit on the head of,
"the deceased. On receiving injury, he fell unconscious on the spot. Thereafter, the other",
accused came running and dealt a blow on the head of PW3. Conviction of first,
"accused under section 304 Part II and co-accused under section 323 IPC, 1860 was",
held proper.743. Where accused having sticks in their hands entered the house of,
"complainant and assaulted him, the overt act attributed to accused by witnesses is",
"specific, medical evidence fully supports the case of prosecution and",
"accused/respondent is liable to be convicted under section 323 of IPC, 1860.744. The",
"accused, a shopkeeper, in a sudden quarrel hit his wife on the head with an iron weight",
of 200 grams which resulted in her death. The medical evidence showed that the injury,
was of a simple nature and there was no evidence that the deceased died of shock,
"caused by the injury. He was held liable only under section 323 IPC, 1860 and not under",
"section 304 IPC, 1860.745. So also where the wife attacked the husband with a brick",
causing multiple injuries resulting in his death but according to medical evidence the,
injuries were of a simple nature and were not sufficient in ordinary course of nature to,
"cause death, it was held that the accused wife could not be convicted under section",
"302 IPC, 1860. Her conviction was accordingly changed to one under section 323 IPC,",
1860.746.,
The accused pushed the victim. She fell down and sustained injuries of simple nature.,
This act of the accused was held to fall under section 323.747. Where the accused gave,
"a push on the chest of the deceased and the victim fell on a stone resulting in death,",
conviction was recorded under section 323.748. The accused husband returned home,
at midnight in a drunken state. He beat his wife and threw a piece of stone on her head,
and she died. The post-mortem report revealed three simple injuries on her head and,
exact cause of death could not be ascertained. Relations between the accused and the,
deceased were found to be cordial. Intention to cause the victim's death was not,
proved. Conviction of the accused under section 300 was set aside and he was,
convicted under section 323.749. Several persons attacked and caused the death of,
"their victim. All, including the present appellant, were holding the deceased and one of",
them K dealt fatal blows. K was convicted of murder under section 302. All his fellows,
were convicted under this section read with section 149 except the present appellant,
who was convicted under section 302 read with section 34. The Supreme Court held,
that the appellant should also have been convicted under this section read with section,
"149.750. Thomas v State of Kerala,751. the fist blow caused by the accused resulted in",
"subdural haematoma which led to the death of the victim, but it could not be said that",
the accused could be attributed with the knowledge that by such act he was likely to,
"cause death, nor could it be said that the accused intended to cause that particular",
"injury which he actually caused, it was held that accused could be convicted only under",
"section 323 and not section 300. In Mohan Singh v State of Rajasthan,752. the accused",
attacked his victim and caused voluntary hurt to him by inflicting fist blows and,
causing nose injury. His guilt was established by the evidence of the witnesses. The,
plea of alibi raised by the accused was not tenable. His conviction under section 323,
was upheld.,
"Where the offence was punishable under this section and also under sections 304, Part",
"II/34, and was covered by the Uttar Pradesh Children Act, 1951, the Court did not",
"consider it proper to subject children to imprisonment but, looking at the brutal nature",
"of the offence, imposed a sentence of fine.753.",
"Where the accused brothers chanced to converge, having not met before, at their",
sister's place avowedly to teach her a lesson for having instituted proceedings against,
"them and one of them who, not known to others was carrying a knife, inflicted a knife",
"blow which, landing on a vital part, caused death, they were convicted under this",
section and the knife wielding brother under section 304 Part-II.754. In a case of,
"attempt to murder, one of the accused gave only one blow with a 'lathi' on the shoulder",
of the injured without sharing the common intention of the other accused. Injury was,
simple and caused only swelling. He was convicted for his individual act under section,
323 and was released on probation.755.,
[s 323.2] Conviction altered to 323.—,
Where the Doctor had clearly established that the injuries sustained by the deceased,
were all simple in nature inflicted upon non-vital parts of the body. The injuries in,
question were sufficient in the ordinary course of nature to cause death. The High,
Court justified in allowing the appeal of the respondents in part and acquitting them of,
the charge of murder while maintaining their conviction for the remaining offences with,
which they were charged.756.,
Where in a quarrel the accused kicked the deceased on his testicles but as no medical,
"treatment was given for two days, the injured died due to Toxaemia caused by",
gangrene. The injury to the testicles was not the direct cause of his death. The,
Supreme Court set aside his conviction under section 304 Part II and convicted him,
under section 323 instead.757. In a dispute over land the defence of accused regarding,
exercising of private defence was not accepted. Sentence of accused under section,
"304, Part II was maintained. Other accused were convicted under section 323 IPC,",
1860.758.,
"The accused, a police constable, beat up a frail old man of 60 years weighing only 38",
Kg. His ribs were broken and that resulted in his death. The Court said that the accused,
must have intended the consequences of his act. His conviction was altered from,
"under section 323 to section 304, Part II. The incident had become 15 years old. He",
had already served some portion of his punishment. He was allowed to surrender to,
serve the remaining portion.759.,
[s 323.3] Acquittal.—,
Allegation that accused/respondents gave beatings to complainant and one of them,
caused incised wound on her right forearm with sickle. Prosecution did not explain as,
to how the respondents had sustained injuries in said incident. Acquittal of,
respondents was held proper.760. Where there is no corroborative evidence that injuries,
"found on person of informant was caused none other than by the appellant, the offence",
"under section 323 of IPC, 1860 could not be proved beyond doubt. Conviction recorded",
against appellant was held improper and liable to be set aside.761.,
[s 323.4] Punishment.—,
Where there was no pre-planned intention to cause death and the incident was the,
"result of a heated moment caused by exchange of abuses, the sentence of six months",
RI was modified to the period already undergone.762. In an incident of hurt and,
"kidnapping, both the accused persons were married and had children. Their previous",
conduct was not bad. The victim girl was not physically harmed and become married,
subsequently. Sentence of six years RI under section 366 for kidnapping was reduced,
to two years but the sentence of six months under section 323 was not reduced.763.,
[s 323.5] Probation.—,
In view of the fact that incident occurred on spur of moment and was traverse in nature,
"and accused did not have any previous conviction, accused was allowed to release on",
probation.764.,
"741. Muhammad Ibrahim v Shaik Davood, (1920) 44 Mad 417.",
"742. Mandira Nandi v Dilip Kumar Baruah, 2012 Cr LJ 2567 (Gau); Bandela Daveedu v State of AP,",
2011 Cr LJ 4257 (AP)—Where accused caused simple injuries to victim and not grievous,
"injuries. Accused are guilty for offence under section 323 read with 34 IPC, 1860 and 324 read",
"with 34 IPC, 1860 instead of section 325 read with 34 IPC, 1860 and section 326 read with 34",
"IPC, 1860.",
"743. Angrej Singh @ Kaka v State of HP, 2012 Cr LJ 3335 (HP). Ayoub Dedar v State of J&K, 2010",
"Cr LJ 2497 (JK). Allegation that appellant caught hold of victim, 10/12 years old girl in jungle,",
committed an indecent assault on her and also made an attempt to commit rape on her.,
"Conviction of appellant under section 376/511 and 323 of IPC, 1860 was held proper.",
"744. State of Maharashtra v Tatyaba Bajirao Jadhav, 2011 Cr LJ 2717 (Bom).",
"745. PP v NS Murthy, 1973 Cr LJ 1238 (AP). Sri Prakash v State, 1990 Cr LJ 486 : 1989 All LJ",
"117, beating child with no injuries, death followed because of enlarged spleen, conviction under",
"sections 323 and 326 and not section 304. The accused caused two injuries on the victim, one",
by sharp-edged weapon and the other by blunt weapon but only the blunt weapon was,
recovered from the accused. It was held that the injury caused by the sharp-edged weapon,
could not be assigned to the accused. His conviction under section 326 was converted to,
"section 323; Jam v State of Rajasthan, 1993 Cr LJ 2572 (Raj).",
"746. Sridevi, 1974 Cr LJ 126 (All). Darshan Singh v State of Punjab, AIR 1991 SC 66 : 1990 Cr LJ",
"2684 ; prosecution case not proved. Purandar Bhukta v State of Orissa, 1991 Cr LJ 1388 ,",
allegation that the accused slapped the informant on his face causing bleeding injury but the,
"fact not mentioned in FIR, benefit of doubt. Munshilal v State of UP, 1990 Cr LJ 984 , no",
"explanation of multiple injuries on accused persons, fatal to prosecution.",
"747. Sellamuthu v State of TN, (1995) 2 Cr LJ 2143 (Mad). Where the wife of the accused gave",
only a single blow to the head of the victim and thereafter remained a silent witness to things,
"happening, she was convicted only under this section and not for causing death under the",
"doctrine of common intention under section 34, Darshan Singh v State of Rajasthan, (1995) 2 Cr",
"LJ 2138 (Raj). The accused inflicted single lathi blow on the head of the deceased, injury simple,",
"but death due to haemorrhage, conviction under section 323, Dunga Ram v State of Rajasthan,",
1996 Cr LJ 3672 (Raj).,
"748. Pichapillai v State of TN, 1996 Cr LJ 3634 (Mad).",
"749. Shyamji v State of Rajasthan, 1993 Cr LJ 2458 (Raj).",
"750. Shri Jawahar v State of UP, 1991 Cr LJ 376 : AIR 1991 SC 273 . Pandu v State of MP, (1995)",
"1 Cr LJ 226 (MP), sentence for grievous hurt reduced to the period already undergone where the",
accused belonged to backward class and had no antecedent record of crime.,
"751. Thomas v State of Kerala, 1992 Cr LJ 581 (Ker).",
"752. Mohan Singh v State of Rajasthan, 1994 Cr LJ 2229 (Raj).",
"753. State of UP v Akhtar Khan, 1991 Cr LJ 1779 (All). Another case of punishment for three",
"months already undergone and a fine of Rs. 1000; Raghuvir Singh v State of MP, 1991 Cr LJ 48 .",
"Prafulla Bora v State of Assam, 1988 Cr LJ 428 (Gau), the accused, a boy of 18–19 years old at",
"the time of occurrence, 11 years passed since then, imprisonment for two years considered",
sufficient but released on probation.,
"754. Om Prakash v State, 1990 Cr LJ 2373 (Del).",
"755. Kuldeep Singh v State of Punjab, 1994 Cr LJ 2201 : 1994 AIR SCW 1451.",
"756. State of Rajasthan v Mohan Lal, (2012) 4 SCC 564 [LNIND 2012 SC 199] : AIR 2012 SC 1595",
"[LNIND 2012 SC 199] ; Puran v State of MP, 2012 Cr LJ 3704 (MP); Haripada Rajak v State of",
"Jharkhand, 2011 Cr LJ 3636 (Jha); Gharbharan v State of Chhattisgarh, 2010 Cr LJ 471 (Chh).",
"757. Pirthi v State of Haryana, AIR 1994 SC 1582 : 1994 Cr LJ 2187 : 1994 Supp (1) SCC 498 .",
"758. Nasiruddin Khan v State of Bihar, AIR 2008 SC 3198 [LNIND 2008 SC 1528] : (2008) 12 SCC",
"129 [LNIND 2008 SC 1528] ; Abani K Debnath v State of Tripura, AIR 2006 SC 518 : (2005) 13 SCC",
422 .,
"759. State of Kerala v Balakrishnan, 1999 Cr LJ 5038 (Ker). Bhoora Ram v State of Rajasthan,",
"1998 Cr LJ 3440 (Raj), free fight, two of them had not caused any fatal injury, who caused the",
"fatal injury, conviction of all under section 323, it being a free fight the right of private defence",
"was not available. Raghunath Sahu v State of Orissa, 1998 Cr LJ 2760 (Ori), free fight, no",
"recoveries, conviction improper. Upendra Singh Solanki v State of Rajasthan, 1997 Cr LJ 1850",
"(Raj), attack on public servant but not for the purpose of preventing him from doing his official",
"duty, conviction under sections 323 and 324. Habil Mia v State of Assam, 1997 Cr LJ 1866 (Gau),",
conviction for hurt and kidnapping.,
"760. State of HP v Sarla Devi, 2011 Cr LJ 2505 (HP).",
"761. Gunadhar Majhi v State of Jharkhand, 2011 Cr LJ 2536 (Jhar).",
"762. Rati Ram v State of UP, 1997 Cr LJ 1525 (All).",
"763. Habil Mia v State of Assam, 1997 Cr LJ 1866 (Gau).",
"764. Chandrakant Kashinath Somware v State of Maharashtra, 2011 Cr LJ 4916 (Bom); Sitaram",
"Paswan v State of Bihar, AIR 2005 SC 3534 [LNIND 2005 SC 703] : (2005) 13 SCC 110 [LNIND",
2005 SC 703] .,
THE INDIAN PENAL CODE,
CHAPTER XVI OF OFFENCES AFFECTING THE HUMAN BODY OF,
OFFENCES AFFECTING LIFE,
"Of the Causing of Miscarriage, of Injuries to unborn Children, of the",
"Exposure of Infants, and of the Concealment of Births.",
[s 324] Voluntarily causing hurt by dangerous weapons or means.,
"Whoever, except in the case provided for by section 334, voluntarily causes hurt by",
"means of any instrument for shooting, stabbing or cutting, or any instrument which,",
"used as weapon of offence, is likely to cause death, or by means of fire or any heated",
"substance, or by means of any poison or any corrosive substance, or by means of any",
explosive substance or by means of any substance which it is deleterious to the,
"human body to inhale, to swallow, or to receive into the blood, or by means of any",
"animal, shall be punished with imprisonment of either description for a term which",
"may extend to three years, or with fine, or with both.",
COMMENT.—,
"This section makes simple hurt more grave, and liable to more severe punishment",
where it has the differentia of one of the modes of infliction described in the,
section.765.,
[s 324.1] CASES.—,
"Where the accused gave a blow on the left side of the head of the victim with a Farsha,",
"a sharp-cutting weapon, causing a simple scalp-deep injury and there was the",
"possibility that the sharp edge of the weapon was not used, it was held that his",
"conviction should be changed from section 307 to one under section 324 IPC, 1860",
since Farsha is a weapon which if used as a weapon of offence is likely to cause,
death.766. Where a head injury was caused with a deadly weapon and the injured was,
"discharged from the hospital after 15 days, but six months thereafter he had to be",
"hospitalised again for brain operation and he did not recover, the death being not solely",
"due to the injury, the accused persons convicted under this section and their conviction",
under section 304 was set aside.767. Tooth is an instrument of cutting and as such,
"biting off the tip of the nose would be an offence under this section or section 326 IPC,",
"1860 depending on the nature of the injury, simple or grievous.768. Where there is no",
"serious injury on any vital part of the body of the victim, the offender should be",
"convicted under section 324 and not under section 326 IPC, 1860.769. Thus, where the",
accused inflicted an injury on the right shoulder of the deceased with a broken soda,
water bottle with sharp edges without knowing that the deceased was suffering from,
"haemophilia (tendency of excessive bleeding), it was held that the accused was liable",
"only under section 324 and not under section 302 IPC, 1860.770. Where simple injuries",
"not likely to cause death were inflicted with a sword, the Supreme Court transferred the",
conviction from under section 307 to one under this section and allowed the offences,
"to be compounded on payment to the victim a sum of Rs. 3,000.771. Where in a case of",
"a dowry death, the evidence showed that the accused, mother-in-law caused injuries on",
the person of the daughter-in-law. She committed suicide. The accused was punished,
"under section 324 but on consideration of circumstances and facts that she was 80,",
"only a sentence of fine of Rs. 3,000 was imposed. Offence under section 306 was not",
"made out.772. Where the accused, a boy of 18 years of age at the time of incident",
"having no criminal history, in a sudden scuffle gave a blow on the chest of the",
"deceased with an ordinary knife resulting in his death and thereafter, mutely allowed to",
"take the knife from his hand and went to the hospital along with the deceased, it was",
"held that he had no intention to cause death or grievous hurt to the deceased, and was",
"guilty under section 324 and not under section 304, Part II.773. Where the accused",
assaulted his victim by 'Katti' blow causing grievous hurt and the co-accused assaulted,
the victim only by lathis and hands causing minor injuries and no pre-concert between,
"the accused and the co-accused regarding the assault by the 'Katti' was established, it",
was held that the co-accused could not be vicariously held liable for the acts of the,
accused and be convicted under section 324.774. Where a blow was inflicted with the,
"blunt side of the axe on the thigh of the victim, the Supreme Court reduced the",
"sentence to four months' RI and increased the fine to Rs. 3,000.775. Where the accused",
deliberately attacked and killed a person with a deadly weapon and was held to be,
"rightly convicted for murder under section 300, he was convicted under this section",
and sentenced to pay a fine for causing hurt on the hand of the intervening wife of the,
deceased with a rice pounder.776.,
In a free fight between two groups resulting in death of one person and injuries to,
"several others, fatal injury could not be attributed to any one of the accused who also",
received a number of injuries. It was held that the accused were properly convicted,
under sections 324 and 325.777. Where one of the accused caused two gunshot,
"injuries to a man which proved fatal, the other accused caused him only an incised",
injury. The accused causing fatal injuries was sentenced under section 302 and the,
other accused only under section 324.778. In an altercation the accused dealt a blow,
with spade lying on the spot on the head of a 70-year-old man who became,
"unconscious, was hospitalised and died after three weeks. The blow caused only linear",
fracture of left frontal bone. It was found that essential element of voluntarily causing,
grievous hurt was wanting. It was held that his offence fell under section 324 and not,
under section 326.779. Allegation that accused resorted to repeated firings at two,
persons on two occasions at two different times and place. On first occasion accused,
fired in air and pellets after being ricocheted from ceiling caused simple injuries to,
three persons. On second occasion also appellant had not caused any injury to,
"anybody. In view of dearth of convincing evidence on record, it cannot be concluded",
with any degree of certainty that appellant had an intention to commit murder of,
anybody. Only conclusion could be drawn is that appellant wanted to cause hurt for,
"dispersing crowd. Appellant can only be convicted under section 324 of IPC, 1860 and",
"not under section 307 IPC, 1860.780. Medical evidence that injuries, however, serious in",
nature but not grievous in nature. Skin grafting has been done and victim is fit for,
"discharge — Accused is guilty of offence under section 324 IPC, 1860 and not under",
"section 307 IPC, 1860.781. The accused struck his wife once only on the neck causing",
simple injury. She fell down and was further injured and died. The instrument (wooden,
"reaper) was dangerous. The conviction was altered from under section 304, Part II to",
section 324.782.,
[s 324.2] Sections 324/149.—,
Prosecution failed to prove that appellants had made unlawful assembly and caused,
incised wound to complainant in furtherance of common object. Accused who,
"assaulted the complainant liable to be convicted under section 324 IPC, 1860 and other",
"accused persons liable to be convicted under section 323 of IPC, 1860.783.",
[s 324.3] Acquittal.—,
"The essential ingredients to make out an offence under section 324 IPC, 1860 should",
be that there must be voluntarily causing hurt and also the required intention. In other,
"words, to constitute an offence of voluntarily causing hurt, there must be complete",
correspondence between the result and the intention or the knowledge of the person,
who causes the said hurt.784. Where the injured witness himself attributed the injury on,
"him to the deceased, instead of the accused, the conviction of the accused on the",
charge of section 324 cannot be sustained under law.785. Where no explanation by,
prosecution as to how the injuries were caused to deceased and the role attributed to,
"appellants by prosecution is fully covered by their right of private defence, conviction",
"and sentence is liable to be set aside.786. In a case, the allegation was that the accused",
petitioner inflicted simple and grievous injuries with sharp-edged weapon on person of,
victim. The Injury Report was not proved and the doctor who signed it was not called,
for examination. The Petitioner was held entitled to acquittal.787.,
[s 324.4] Punishment.—,
Where injuries were caused on account of quarrel over land and the incident was,
"already 17 years old, the accused was sentenced to two years RI and fine.788. Incident",
had occurred more than 35 years ago. There was no complaint against appellant during,
pendency of appeal of indulging into any criminal activities. Period of imprisonment,
"already undergone by appellant with fine of Rs. 10,000 and in default thereof to",
undergo six months simple imprisonment would meet ends of justice.789.,
[s 324.5] Non-Compoundable.—,
"Before the Code of the Criminal Procedure (Amendment Act) 2005 came into force,",
"offence under section 324 of IPC, 1860 was compoundable with the permission of the",
"Court as prescribed in the table, under sub-section (2) of section 320 of Cr PC, 1973.",
The Code of Criminal Procedure (Amendment Act) 2005 (Act 25 of 2005) has taken out,
"section 324 of IPC, 1860 from the sphere of compounding and thereby made it non-",
"compoundable. Since the offence committed under section 324 of IPC, 1860 before",
"Amendment Act came into force, was compoundable with the permission of the Court",
"pursuant to the provisions prescribed under sub-section (2) of section 320 of Cr PC,",
1973—as was in force before the Code of Criminal Procedure Amendment Act 2005,
came into effect.790. After coming into force of the Code of Criminal Procedure,
"(Amendment) Act 2005 the offence under section 324, IPC is made non-",
"compoundable. However, in this case the offence under section 324, IPC was",
committed on 23 July 1986 on which date it was compoundable with the permission of,
the Court. As the Code of Criminal Procedure (Amendment Act) 2005 is not applicable,
"to the facts of the case, the offence under section 324, IPC, 1860 would be",
compoundable with the permission of the Court.791.,
[s 324.6] Probation.—,
"Accused is convicted under section 324 IPC, 1860. Taking into consideration the 20",
"years age of one of the appellants on date of incident, benefit of Probation of Offenders",
"Act, 1958, is extended to him.792.",
"765. See Madhab Digai v State of Orissa, (1995) 1 Cr LJ 1206 (Ori) conviction for injuries caused",
by knife.,
"766. Jai Narain, 1972 Cr LJ 469 : AIR 1972 SC 1764 . Anwarul Haq v State of UP, 2005 Cr LJ 2602",
": AIR 2005 SC 2382 [LNIND 2005 SC 425] : (2005) 10 SCC 581 [LNIND 2005 SC 425] , assault",
"and injury with knife, though not recovered, conviction on the basis of evidence of eyewitnesses.",
"767. State of Orissa v Rabu Naik, 1990 Cr LJ 2777 (Ori). See also State of Gujarat v Bharwad",
"Jakshibhai Naeq bhai, 1990 Cr LJ 2531 (Guj), where the common object of an unlawful assembly",
"was only to belabour the members of a particular community, and they were striking with iron-",
"rimmed sticks, one blow proving fatal, conviction under this section and section 326 and not for",
murder.,
"768. Jamil, 1974 Cr LJ 867 (All); See also Jagat Singh, 1984 Cr LJ 1551 (Del); Chaurasi Manjhi,",
AIR 1970 Pat 322 .,
"769. Kailash Prasad, 1980 Cr LJ 190 : AIR 1980 SC 106 .",
"770. Anbumani v State, 1981 Cr LJ (NOC) 115 (Mad).",
"771. Narendra Kumar v State of Rajasthan, (1987) 24 All CC 516 : 1988 SCC (Cr) 884 : 1988 Supp",
"SCC 536 ; Madan Lal v State of HP, 1990 Cr LJ 310 , simple injuries. Ramesh v State of UP, AIR",
"1992 SC 664 : 1992 Cr LJ 669 , a single injury at back of neck, conviction shifted to under this",
section from under section 307.,
"772. State of HP v Nikku Ram, 1995 Cr LJ 4184 : AIR 1996 SC 67 [LNIND 1995 SC 851] .",
"773. Shrirang Kisan Kurade v State of Maharashtra, 1992 Cr LJ 1362 (Bom).",
"774. Mohan Tripathy v State of Orissa, 1994 Cr LJ 1188 (Ori). Chand Mohammed v State of Bihar,",
"2013 Cr LJ 542 (Pat); Sheikh Ahmad v State, 2013 Cr LJ 267 (Pat); Deepak v State, 2013 Cr LJ",
"2801 (Utt); Madan Lal v State, 2013 Cr LJ 2885 (Utt); Chagalamari Subbaiah v State of AP, 2010 Cr",
LJ 655 (AP),
"775. Bishna v State of Haryana, 1988 SCC (Cr) 48 : 1987 Supp SCC 184 . Another case of",
simultaneous assault by several persons which was held to fall under this section is Vithal,
"Bhimashah Koli v State of Maharashtra, AIR 1983 SC 179 [LNIND 1982 BOM 340] : 1983 Cr LJ",
"340 : (1983) 1 SCC 431 . See also Sheopoojan Chamar v State of Bihar, AIR 1991 SC 1462 , in",
"addition to the principal offender, whose sentence was not modified, that of his two associates",
"who caused minor injuries, reduced to the period already undergone.",
"776. Re Thunicharam, 1991 Cr LJ 1318 (Mad). Pushap Raj v State of Rajasthan, (1995) 2 Cr LJ",
1776 (Raj) conviction under the section of those members who caused only simple injuries as,
"distinguished from those who caused death. Bhola Singh v State of Punjab, (1995) 2 Cr LJ 1830",
"(P&H) causing injuries to eyewitness, conviction under the section.",
"777. Amrik Singh v State of Punjab, 1993 AIR SCW 2482 : 1993 Cr LJ 2857 : 1994 Supp (1) SCC",
320 . the court reduced the sentence to the period already undergone. Shyama Pradhan v State,
"of Orissa, 1996 Cr LJ 2936 (Ori), deliberate attack on the victim, probation not allowed, sentence",
reduced to the period already undergone.,
"778. State of UP v Jamshed, 1994 Supp (1) SCC 610 : 1994 Cr LJ 635 ; Para Seenaiah v State of",
"AP, (2012) 6 SCC 800 [LNIND 2012 SC 314] : AIR 2012 SC 2875 [LNIND 2012 SC 314] .",
"779. Golak Chandra Nayak v State of Orissa, 1993 Cr LJ 274 .",
"780. Kamla v State of UP, 2012 Cr LJ 2659 (All); Krishna Babu Bhoir v State of Maharashtra, 2011",
Cr LJ 1813 (Bom).,
"781. Smt. Shakunthalamma v State, 2012 Cr LJ 801 (Kar); Ram Nath Deepak v State NCT of Delhi,",
2011 Cr LJ 14059 (Del). Plea on the part of petitioners that Sessions Court erred in framing,
"charge against petitioners under section 308 IPC, 1860 instead of section 324 IPC — Liable to",
be rejected.,
"782. Munusamy v State of TN, 1996 Cr LJ 3161 (Mad). Ram Singh v State of Haryana, AIR 1998",
"SC 1759 [LNIND 1998 SC 414] : 1998 Cr LJ 2279 (SC), assault on victims causing grievous hurt.",
"There was no explanation for the injuries suffered by the accused persons, who gave an",
"explanation which seemed to be more probable, acquittal. Mobin v State of UP, 2000 Cr LJ 2098",
"(All), in the absence of evidence regarding internal damage underneath the injury, the injury",
could not be said to be grevious. Conviction under section 307 altered to one under section 324.,
"Ram Kumar Goutam v State of MP, 2001 Cr LJ 1604 (MP), medical evidence showed that an",
"incised wound over abdomen and two contusions on legs, wounds simple and not grevious,",
"conviction under section 324. Nabin Chandra Saikia v State of Assam, 2000 Cr LJ 3824 (Gau),",
"conviction for acid attack. Ramharakh v State of UP, 1999 Cr LJ 3001 (All), injuries caused were",
"of simple nature, death because of enlarged spleen which became ruptured, which fact not",
"known to assailants, offence under section 324 made out. P Johnson v State of Kerala, 1998 Cr",
"LJ 3651 (Ker) injured persons admitted to hospital soon after the incident, but thereafter laxity",
"in all respects. No case against accused persons made out. Peedikandi Abdulla v State of Kerala,",
1998 Cr LJ 2758 (Ker) no offence of hurt under section 323 or of outraging modesty under,
"section 354 made out. Shankar Lal v State of Haryana, 1998 Cr LJ 4595 : AIR 1998 SC 3271",
"[LNIND 1998 SC 632] , the victim was assaulted with knife. As soon as he recovered",
"consciousness, he named the accused person as the assailant. Evidence of the victim alone",
"was held to be sufficient for conviction. Sheo Dularey v State of UP, 1997 Cr LJ 269 (All), injury",
"with axe but simple conviction under section 324. Dabhugotto Ithaiah v State of AP, 1997 Cr LJ",
"3651 (AP), hurt caused with dangerous weapons in a group rivalry between political parties. Oral",
"and documentary evidence. Conviction proper. Kothandapani v State of TN, 2003 Cr LJ 151",
"(Mad), the accused persons attacked with casuarina sticks and caused simple injuries on his",
"legs, imposition of fine of Rs. 500 was considered to be enough. Muni Lal Paswan v State of",
"Bihar, 2003 Cr LJ 1625 (Pat), allegation that the accused person assembled together and",
"attempted to kill, but the evidence showed that only the main accused dealt blows with spade",
on the head of the injured victim. The conviction of the main accused was altered from section,
307 to section 324 and his sentence reduced to the period already undergone. Others,
"discharged. Karunamoy Sarmah v State of Assam, 2003 Cr LJ 1968 (Gau), simple injuries",
"caused, scuffling over stengun. Conviction under section 324 and not section 307. State of",
"Karnataka v Jagadisha, 2003 Cr LJ 2141 (Kant) different versions of the place of the incident",
and that of recovery of weapons. It was not possible to ascertain whether the incident took,
"place inside or outside the house, this should not discredit the prosecution case, nor some",
"irregularities and omissions in the investigation. Mukati Pd Rai v State of Bihar, 2005 SCC Cr LJ",
"681 : AIR 2005 SC 1271 : (2004) 13 SCC 144 , accused wielding lathis trespassed into the house",
"of the victim, and instigated others to beat them up. They received lathi injuries. Accused",
"convicted under section 324/114, (offence committed in the presence of abettor).",
"783. Brijesh Roopsingh Baghel v State of MP, 2011 Cr LJ 2273 (MP).",
"784. Pitchavadhmtiilu v State of AP, 2011 Cr LJ 469 (AP).",
"785. Kumar v State represented by Inspector of Police, AIR 2018 SC 2386 [LNIND 2018 SC 262] .",
"786. Haren Das v State of Assam, 2012 Cr LJ 1467 (Gau).",
"787. Suraj Mal v State, 2010 Cr LJ 1583 (Raj).",
"788. Nathu v State of UP, 1998 Cr LJ 2382 (All).",
"789. Kamla v State of UP, 2012 Cr LJ 2659 (All); Amruta Shankarrao Deshmukh v State of",
"Maharashtra, 2011 Cr LJ 1147 (Bom).",
"790. Prabhat Das v State of Tripura, 2013 Cr LJ 1712 (Gau); Naresh Kumar v State of Haryana,",
"(2012) 9 SCC 330 [LNIND 2012 SC 478] : 2012 (3) SCC (Cr) 1137; Bineesh v State of Kerala, 2012",
Cr LJ 4128 .,
"791. Hirabhai Jhaverbhai v the State of Gujarat, 2010 (6) SCC 688 [LNIND 2010 SC 335] : AIR",
"2010 SC 2321 [LNIND 2010 SC 335] ; Code of Criminal Procedure (Amendment) Act, 2008",
[came into force on 31 December 2009] replaced the list of compoundable offences under,
"section 320 of Cr PC, 1973 which finally resolved the confusion whether section 324 etc., are",
"compoundable or not. See the conflicting views of the Supreme Court in Manoj v State of MP,",
"(AIR 2009 SC 22 [LNIND 2008 SC 1920] ) and in Md Abdul Sufan Laskar v State of Assam, 2008",
(9) SCC 333 .,
"792. Chandrabhan v State of MP, 2011 Cr LJ 4667 (MP). Madan Lal v State, 2013 Cr LJ 2885",
(Utt).,
THE INDIAN PENAL CODE,
CHAPTER XVI OF OFFENCES AFFECTING THE HUMAN BODY OF,
OFFENCES AFFECTING LIFE,
"Of the Causing of Miscarriage, of Injuries to unborn Children, of the",
"Exposure of Infants, and of the Concealment of Births.",
[s 325] Punishment for voluntarily causing grievous hurt.,
"Whoever, except in the case provided for by section 335, voluntarily causes grievous",
"hurt, shall be punished with imprisonment of either description for a term which may",
"extend to seven years, and shall also be liable to fine.",
COMMENT.—,
This section prescribes the punishment for voluntarily causing grievous hurt except in,
"cases provided for by section 335. The facts involved in a particular case, depending",
"upon various factors like size, sharpness, would throw light on the question whether",
the weapon was a dangerous or deadly weapon or not. That would determine whether,
in the case section 325 or section 326 would be applicable. Considering the size of the,
"stone which was used, as revealed by material on record, it cannot be said that a",
"dangerous weapon was used. Therefore, the conviction was altered to section 325 IPC,",
1860.793. Where a player in a friendly cricket match blew a stump against another,
"player which hit his head and caused death, it was held that the intention to cause",
"death or likelihood of it being not proved, an offence under section 325 was made out,",
injury having been caused by a blunt weapon.794. Where medical evidence showed that,
attack on the forehead of the deceased was by a lathi and the internal injury could not,
"be correlated to the external injury caused by the accused, it was held that the accused",
"was liable under section 325 IPC, 1860 and not under section 304, Part II, IPC, 1860.795.",
Where two injuries were caused in a quarrel by the two accused persons each of whom,
inflicted one stick blow one of which proved fatal but it could not be known who had,
"inflicted that blow and since intention to cause death was not established, conviction",
was altered from under section 302 to section 325 read with section 34.796. In a fight,
"between two groups, one person received one stick blow on the head and died a week",
after treatment and operation. It could not be said that the accused had knowledge that,
blow would cause death of that person. Conviction of the accused under section 304,
Part II/34 was altered to one under sections 325 and 34.797. In an altercation between,
"father and the son, the son gave a blow on the head of his father with a heavy stick and",
ran away. The victim died after one week in the hospital. It was held that the attack was,
not pre-meditated and the offence fell under section 325 and not under section 302.798.,
In a case the victim had sustained a grievous injury on a vital portion of the body and,
"the injury was life threatening, imposition of sentence of six days only, which was the",
period already undergone by the accused in confinement was held too lenient.,
"However, as the parties had forgotten their differences and were living peacefully for 25",
"years, the Court taking into consideration the aggravating as well as mitigating factors",
"under the facts of this case, imposed a sentence of six months' rigorous imprisonment",
"and a fine of Rs. 25,000/- against the accused.799. In a clash over property dispute the",
accused party caused grievous injuries to two persons and simple injuries to some,
others. The occurrence took place 17 years before and some of the accused were more,
than 76 years of age and one of them had died. Their conviction under section 325 was,
affirmed but the sentence was reduced to the period already undergone as the Court,
"did not think it fit to send them back to jail. However, a fine of Rs. 200 was imposed on",
"each one of them.800. In this connection, see also discussion and cases under sub-",
"heads ""Death caused without requisite 'intention or knowledge' not culpable homicide""",
"and ""single blow or lathi blow"" under section 299, ante.801.",
[s 325.1] Sentence.—,
Once the accused is held guilty of commission of offence punishable under section,
"325 IPC, 1860 then imposition of jail sentence and fine on the accused is mandatory.",
"So far as jail sentence is concerned, it may extend up to 7 years as per court's",
"discretion whereas so far as fine amount is concerned, its quantum would also depend",
upon the Court's discretion.802. Where the victim sustained a grievous injury on a vital,
"portion of the body, i.e., the head, which was fractured and the injury was life",
"threatening, imposition of the sentence of six days only which was the period already",
undergone by the accused in confinement was held too lenient. The Supreme Court,
considering the aggravating as well as mitigating factors under the facts that the,
parties have forgotten their differences and are living peacefully imposed a sentence of,
"6 months' RI and a fine of Rs. 25,000/- against the accused.803.",
[s 325.2] Compounding of offence under sections 323 and 325.—,
"During the pendency of proceedings under these sections, the parties effected a",
compromise at the instance of their elders. Parties belonged to the same family and,
there was no previous enmity. Permission to compound the offence under section 325,
was granted by the High Court.804.,
"793. Mathai v State of Kerala, AIR 2005 SC 710 [LNIND 2005 SC 37] : (2005) 3 SCC 260 [LNIND",
2005 SC 37] .,
"794. Shailesh v State of Maharashtra, 1995 Cr LJ 914 (Bom).",
"795. Mohinder Singh, 1985 Cr LJ 1903 (SC) : AIR 1986 SC 309 . See Maiku v State of UP, 1989 Cr",
"LJ 860 : AIR 1989 SC 67 : 1989 Supp (1) SCC 25 , where a police party could not be convicted",
under this section when a lathi blow was given to an escaping witness in the course of an,
"investigation and he died, it being not explained which of the party had played what role.",
"Bibhisan Barik v State of Orissa, (1995) 1 Cr LJ 390 (Ori) where while sentencing for grievous",
"hurt caused six years ago, the social status of the parties, genesis of the dispute were taken into",
account for holding that custody already undergone was sufficient punishment. Wachittar Singh,
"v State of Punjab, (1995) 2 Cr LJ 1614 (P&H), grievous injuries caused by attacking the party by",
"reason of a land dispute, those accused who caused injuries on legs with a blunt weapon were",
"released on bail under the Probation of Offenders Act, 1958. The benefit of probation was",
"extended to other accused also. State of Karnataka v Sririyappa, (1995) 2 Cr LJ 2304 (Kant), here",
"the offence was punishable with life imprisonment, benefit of probation under section 4 of the",
"Probation of Offenders Act, 1958 was held to be improper.",
"796. Siddapuram Siva Reddy v State of AP, (1995) 1 Cr LJ 701 (AP).",
"797. Halke v State of MP, AIR 1994 SC 951 : 1994 Cr LJ 1220 . Takhaji Hiraji v Thakore Kubersing",
"Chammansing, AIR 2001 SC 2328 [LNIND 2001 SC 1150] : 2001 Cr LJ 2602 , in a fight between",
"two village communities, the accused gave blows to the victim with a stick causing fracture in",
"his hand, conviction under the section proper. Rs. 500 was recovered as a fine for compensating",
the victim and a bond for keeping peace was taken from the accused with sureties. Nathu v,
"State of UP, 1999 Cr LJ 2382 (All), land dispute, lathi blows, unintended death of one victim,",
accused persons held guilty of causing grievous hurt with common intention. Conviction of all,
"under section 34/326. Ajay Sharma v State of Rajasthan, 1998 Cr LJ 4590 : AIR 1998 SC 2798",
"[LNIND 1998 SC 879] , no finding of common intention to kill, conviction recorded under section",
"324. ABC Imports & Exports v Asst. Director, Enforcement, a mob of 200 came to the field to",
"prevent transplantation by the prosecution party, one caused death at the spur of moment,",
"others inflicted minor injuries. One was held liable to be convicted for murder, other only for hurt",
"under section 325/34. State of Karnataka v Dwaraka Bhat, 1997 Cr LJ 226 : AIR 1996 SCW 4132 ,",
"accused pushed victim with great force, he fell down and sustained head injury and became",
"unconscious. Conviction. State of Karnataka v Basavegowda, 1997 Cr LJ 4386 (Kant), the",
"accused husband took his wife to forest, assaulted her with a stone and extorted her",
ornaments. One serious injury and other simple injuries were caused. She was the sole witness,
but found reliable. The fact that the divorced had remarried was not in itself an expression of,
hostility towards the accused. Conviction was under section 325 and not section 307. The,
"accused was a young rustic villager, uneducated but no criminal background, nine years had",
lapsed since the incident. Sentence of two years for grevious hurt and two years for extortion,
were reduced to the period already undergone.,
"798. Bellana Kannam Naidu v State of AP, 1994 Cr LJ 1146 (AP).",
"799. State of Rajasthan v Mohan Lal, AIR 2018 SC 3564 .",
"800. Ayub v State of UP, AIR 1994 SC 1064 : 1994 Cr LJ 1219 .",
"801. See also Rattan Singh v State of Punjab, AIR 1988 SC 2417 : 1988 BLJR 459 : 1988 SCC (Cr)",
"708 : 1988 Supp SCC 456 , death caused by lathi blow; Ganga Prasad v State of UP, 1987 SCC",
"(Cr) 345 : (1987) 2 SCC 232 , lacerated injury caused with a spade which was allowed to be",
compounded.,
"802. State of UP v Tribhuwan, AIR 2017 SC 5249 [LNIND 2017 SC 2876] .",
"803. State of Rajasthan v Mohan Lal, AIR 2018 SC 3564 . See also Subhash Chander Bansal v",
"Gian Chand, AIR 2018 SC 655 [LNIND 2018 SC 19] .",
"804. Mohinder Singh v State of Haryana, 1993 Cr LJ 85 (P&H). Pappu v State of Punjab, AIR 2000",
"SC 3633 , the accused and prosecution witnesses injured in the incident were close relatives.",
They settled their dispute as between themselves. The sentence of the accused was reduced to,
the period already undergone.,
THE INDIAN PENAL CODE,
CHAPTER XVI OF OFFENCES AFFECTING THE HUMAN BODY OF,
OFFENCES AFFECTING LIFE,
"Of the Causing of Miscarriage, of Injuries to unborn Children, of the",
"Exposure of Infants, and of the Concealment of Births.",
[s 326] Voluntarily causing grievous hurt by dangerous weapons or means.,
"Whoever, except in the case provided for by section 335, voluntarily causes grievous",
"hurt by means of any instrument for shooting, stabbing or cutting, or any instrument",
"which, used as a weapon of offence, is likely to cause death, or by means of fire or",
"any heated substance, or by means of any poison or any corrosive substance, or by",
"means of any explosive substance, or by means of any substance which it is",
"deleterious to the human body to inhale, to swallow, or to receive into the blood, or by",
"means of any animal, shall be punished with 805.[imprisonment for life], or with",
"imprisonment of either description for a term which may extend to ten years, and",
shall also be liable to fine.,
COMMENT.—,
The relationship between this section and the preceding one is the same as that,
between sections 324 and 323. Before a conviction for the sentence of grievous hurt,
"can be passed, one of the injuries defined in section 320 must be strictly proved, and",
the eighth clause is no exception to the general rule of law that a penal statute must be,
"construed strictly. The expression ""any instrument which, used as a weapon of offence,",
"is likely to cause death"" has to be gauged taking note of the heading of the section.",
The essential ingredients to attract section 326 are:,
(1) voluntarily causing a hurt;,
(2) hurt caused must be a grievous hurt; and,
(3) the grievous hurt must have been caused by dangerous weapons or means.806.,
[s 326.1] Dangerous weapon.—,
What would constitute a 'dangerous weapon' would depend upon the facts of each,
case and no generalisation can be made. The heading of the section provides some,
insight into the factors to be considered. As was noted by the Supreme Court in State,
"of UP v Indrajeet alias Sukhatha,807. there is no such thing as a regular or earmarked",
weapon for committing murder or for that matter a hurt. Whether a particular article,
can per se cause any serious wound or grievous hurt or injury has to be determined,
"factually. At this juncture, it would be relevant to note that in some provisions, e.g.,",
"sections 324 and 326 expression ""dangerous weapon"" is used. In some other more",
"serious offences the expression used is ""deadly weapon"" (e.g., sections 397 and 398).",
"The facts involved in a particular case, depending upon various factors like size,",
"sharpness, would throw light on the question whether the weapon was a dangerous or",
deadly weapon or not. That would determine whether in the case section 325 or,
section 326 would be applicable.808.,
In the absence of any evidence that the stick which was used as a weapon of offence,
"was of lethal type and something like sharp blade or sharp point, etc., was attached to",
"it, the stick was held to be not an instrument within the meaning of this section.809.",
Where the accused-teacher assaulted the child-student with a wooden stick that,
caused injury to the eye of the child but there was no material to show that the stick,
"that was wielded by the accused was a dangerous weapon, the conviction of the",
accused under section 326 may not be warranted; but the offence would fall under,
"section 325 IPC, 1860.810.",
[s 326.2] Injuries not serious enough to endanger life.—,
It was proved that the accused persons caused injuries which led to the victim's death.,
He did not receive any medical assistance for full four hours. He lost a lot of blood,
which became the cause of death. None of the injuries were on the vital parts of the,
body. They were not serious enough to endanger life by themselves. The Court said,
"that at the highest, the accused persons could be said to be guilty under sections",
326/34 for causing grievous hurt.811. In an altercation the accused persons beat the,
injured with fist and leg blows on stomach and waist. An attempt was made to help,
him out of the injury by fomenting at home. But he had to be shifted to hospital and,
operated upon. It was held that the accused was guilty of attempt to cause grievous,
hurt and not attempt to murder.812. The accused persons armed with lathis and a tangi,
went to the field of the victims and picked up a fight while they were ploughing their,
field. Looking at the attack they ran away. On their way back they met the uncle of their,
victims who happened to ask them about the matter. They being annoyed by the,
"question, hit him on the head with a lathi. He died. The Court viewed the act as only one",
intended to cause grievous hurt. Sentence of five years RI was awarded.813.,
[s 326.3] Internal injuries.—,
"On account of a quarrel, the husband kicked his wife in the abdomen and chest. Liver",
injuries were caused of which she died. Conviction was recorded under section 326.,
There was no appeal by the State for any higher punishment. There was no evidence to,
"suggest any dowry demand. Hence, there could be no conviction under section",
498A.814.,
[s 326.4] Disfiguration.—,
The wife of the accused was being taken to a Police Station in execution of search,
warrant accompanied by a police constable. The accused assaulted his wife and,
"caused injuries resulting in amputation of her limbs. The whole nose was also cut,",
which itself was held to be sufficient to attract permanent disfiguration. Conviction of,
the accused under section 326 was not interfered with.815.,
[s 326.5] Burn Injuries.—,
Incident of throwing burning Kerosene Lamp by accused on complainant and the,
"complainant sustained 25–30 per cent burn injuries on chest, abdomen and hands.",
Doctor clarified that burn injuries are fatal and dangerous to life in case the injuries get,
"infected and develop into septicaemia. Therefore, injuries cannot be said to be fatal.",
"Accused was liable to be convicted only under section 326 of IPC, 1860 not under",
section 307.816.,
[s 326.6] Acid attack.—,
The accused threw acid on the faces of their victims. Medical evidence showed that,
"the injuries caused on the faces and eyes were not sufficient to cause death, conviction",
of the accused under section 307 was altered to one under section 326. The Court,
observed that unless it can be shown that the intention or knowledge of the accused,
was to cause such bodily injury as would come within one of the four clauses of,
"section 300, he cannot be held guilty of an offence under section 307.817.",
[s 326.7] Attack with axe.—,
Protest against cutting of trees became the cause for assault. The accused and his,
companions started assaulting. The victim received a head injury with an axe. The blow,
caused fracture because of its force. The accused persons were not entitled to the,
"benefit of private defence, they being the aggressors.818.",
[s 326.8] Attack with piece of stone.—,
"The weapon of assault was a piece of stone. As per the evidence of the doctor, the",
injury caused was grievous one. But considering the size of the stone used for the,
"purpose, it could not be said that a dangerous weapon was used. The conviction was",
altered to section 325 from section 326.819.,
[s 326.9] Counter case.—,
In a case the accused inflicted a knife blow to a man and the accused was also injured,
during the same incident and filed a counter case but took no steps to bring his case to,
trial. It was held that filing of the counter case was not fatal to the prosecution case,
though both the cases should have been clubbed together. Conviction of the accused,
under section 326 was upheld.820. The eye-witnesses who deny the presence of,
"injuries on the person of the accused are lying on the most material point, and",
"therefore, their evidence is unreliable.821.",
[s 326.10] Feeding prasad containing poison.—,
The accused distributed prasad to persons on relay fast. It contained poison. One,
"person died, others affected. The Court was of the view that it could not be said that",
"there was intention to kill a particular person, distribution being made openly. But",
because the accused must have had knowledge that a poisonous substance may,
cause grievous hurt or even death. In respect of the death he was convicted under,
"section 304, Part I and in respect of others affected under section 326.822.",
[s 326.11] Protest against eve-teasing.—,
The accused were friends of the victim who had objected to eve-teasing by one of,
them. The victim-protestor was assaulted. It was held that they could be convicted,
individually for their role in the assault under section 326 but not for the murder. There,
was no common intention of going to that extent.823.,
[s 326.12] Uncertainty as to cause of death.—,
The first doctor who examined the injured person in the hospital stated that none of the,
injuries either individually or collectively appeared to be dangerous to life. The doctor,
"who last examined the patient stated that 'A' group blood having been exhausted, 'O'",
group blood was given and death might have been due to blood reaction. The post-,
mortem doctor stated that death was due to rupture of liver. The conviction was shifted,
from under sections 302/34 to that under sections 325–326/34.824.,
[s 326.13] Torture in police custody.—,
Victim was arrested and kept in police station for three days and was not produced,
before a Magistrate within 24 hours. Third degree methods adopted on him and his,
penis was also chopped off with a barber's razor. It was a barbaric act on the part of,
"the accused, who deserve no leniency. Both accused persons are held guilty under",
"section 326 IPC, 1860.825.",
[s 326.14] Section 307 vis-a-vis Section 326.—,
"In some cases offence under section 326 IPC, 1860 may be acutely more serious than",
"another falling under section 307 IPC, 1860. For instance, acid thrown on the face of",
"young, unmarried girl would come under section 326 IPC, 1860 but it would be far more",
"serious than a firearm shot missing the victim that would fall under section 307 IPC,",
1860.826. A bare perusal of these two provisions clearly reveals that while section 307,
"IPC, 1860 uses the words ""under such circumstances"", these words are conspicuously",
"missing from section 326 IPC, 1860. Therefore, while deciding whether the case falls",
"under section 307 IPC, 1860 or under section 326 IPC, 1860 the Court must necessarily",
examine the circumstances in which the assault was made.827. Doctor categorically,
stated that injury could have caused death. Radiologist also stated that chopping of the,
leg was grievous act in nature. The Supreme Court held that High Court was not,
justified in altering conviction from section 307 read with section 149 to 326 read with,
"section 149 IPC, 1860.828. Number of injures were quite grievous but accused were",
careful not to give any blow on any vital part of body. Doctor did not say that injuries,
"were sufficient in the course of nature to cause death. Therefore, accused was",
"convicted under section 326 IPC, 1860 instead of section 307 IPC, 1860.829.",
[s 326.15] Punishment.—,
Imposing only fine while convicting the accused under section 326 and not imposing,
"punishment of imprisonment, was held to be a non-compliance of the provisions of the",
"code.830. Accused poured acid on the head of victim with the result that face, neck,",
"eyes, chest, etc., were seriously burnt. High Court reduced sentence from three years to",
already undergone (35 days). For such a heinous crime accused deserves no,
leniency.831.,
"In a case,832. the Supreme Court held the imposition of three months' imprisonment to",
be proper but pointed out that the Courts below should have taken notice of the,
"provisions of the Probation of Offenders Act, 1958 or of section 360 Cr PC, 1973. While",
"upholding the sentence, the Court directed the prisoner to be released on probation.",
Often in Court at the sentencing stage the spotlight fell almost entirely upon the,
"offender and the circumstances of the offender, and there was seldom reference to the",
suffering of the victim of violence.833.,
[s 326.16] Offence not compoundable.—,
"In Suresh Babu v State of AP,834. Supreme Court allowed the compounding of an",
"offence under section 326 IPC, 1860 even though such compounding was not",
"permitted by section 320 of the Code. However, in Surendra Nath Mohanty v State of",
"Orissa,835. and in Ramlal v State of Jammu and Kashmir,836. it was held that an offence",
which law declares to be non-compoundable cannot be compounded at all even with,
"the permission of the Court and held Suresh Babu,837. per incuriam. In Jalaluddin v State",
"of UP,838. and in Bankat v State,839. the Apex Court reiterated that as the offence under",
"section 326, IPC, 1860 is not compoundable, even if the parties settled the matter. In",
"Ramgopal v State of MP,840. Supreme Court held as follows:",
There are several offences under the IPC that are currently non - compoundable. These,
"include offences punishable u/s. 498-A, s. 326, etc. of the IPC. Some of such offence can be",
made compoundable by introducing a suitable amendment in the statute. We are of the,
opinion that the Law Commission of India could examine whether a suitable proposal can,
be sent to the Union Government in this regard. Any such step would not only relieve the,
Courts of the burden of deciding cases in which the aggrieved parties have themselves,
"arrived at a settlement, but may also encourage the process of reconciliation between them.",
"We, accordingly, request the Law Commission and the Government of India to examine all",
these aspects and take such steps as may be considered feasible.,
The Law Commission of India examined the issue in view of the direction in Ramgopal's,
Case and submitted its 237th Report suggesting to make section 498A and section,
324 compoundable: no changes were suggested regarding section 326. In Gian Singh v,
"State of Punjab,841. a three-Judge Bench held that sub-section (9) of section 320",
mandates that no offence shall be compounded except as provided by this section.,
"Obviously, in view thereof the composition of an offence has to be in accord with",
section 320 and in no other manner. But the power of compounding of offences given,
to a Court under section 320 is materially different from the quashing of criminal,
proceedings by the High Court in exercise of its inherent jurisdiction. In compounding,
"of offences, power of a criminal Court is circumscribed by the provisions contained in",
"section 320 and the Court is guided solely and squarely thereby while, on the other",
"hand, the formation of opinion by the High Court for quashing a criminal offence or",
criminal proceeding or criminal complaint is guided by the material on record as to,
whether the ends of justice would justify such exercise of power although the ultimate,
"consequence may be acquittal or dismissal of indictment. The result is, though section",
"326 IPC, 1860 is a non-compoundable offence, the High Court can quash the",
"proceedings by using its inherent power under section 482 Cr PC, 1973 in case of",
settlement between the parties.,
"805. Subs. by Act 26 of 1955, section 117 and Sch., for ""transportation for life"" (w.e.f. 1 January",
1956).,
"806. Prabhu v State of MP, AIR 2009 SC 745 [LNIND 2008 SC 2354] : (2008) 17 SCC 381 [LNIND",
2008 SC 2354] .,
"807. State of UP v Indrajeet alias Sukhatha, (2000) 7 SCC 249 [LNIND 2000 SC 1148] .",
"808. Prabhu v State of MP, AIR 2009 SC 745 [LNIND 2008 SC 2354] : (2008) 17 SCC 381 [LNIND",
"2008 SC 2354] ; Mathai v State of Kerala, 2005 (2) JT 365 .",
"809. Jagannath v State of Maharashtra, (1995) 1 Cr LJ 795 (Bom).",
"810. C R Kariyappa v State of Karnataka, AIR 2018 SC 4312 .",
"811. State of Karnataka v Shivaraj, 2002 Cr LJ 2493 (Kant), the accused persons were all",
"agriculturists and not seasoned or regular criminals, there was neither brutality nor",
"premeditation, they had served considerable period of time in custody during the trial. Their",
imprisonment was reduced to the period already undergone and fine of Rs. 2000 each.,
"812. Rajesh Kumar v State of Haryana, 2002 Cr LJ 756 (P&H), the accused were less than 21",
"years of age, first offenders, faced proceedings for 10 years, released on probation on furnishing",
"bond of Rs. 10,000 each and with surety bond of like amount for three years. State v Abdul",
"Rashid, 2002 Cr LJ 3118 (J&K), three accused persons assaulted the victim who died and his",
"brother received injuries with a sharp weapon, but injury was not sufficient to cause death.",
Perforation of wound became the cause of death. The accused also caused grievous hurt with,
"dangerous weapon. Convicted under sections 326/34. GS Walia v State of Punjab, 1998 Cr LJ",
2524 (SC) attack with iron rods and axe resulting in death. Medical report did not show injury as,
sufficient to cause death. Inference that attack was only to cause injuries. Liability for conviction,
"only under section 325. State of Karnataka v Lokesh, 2002 Cr LJ 3795 (Kant) all the accused",
convicted under the section read with section 34.,
"813. Chowa Mandal v State of Bihar, AIR 2004 SC 1603 [LNIND 2004 SC 147] : 2004 Cr LJ 1405 .",
"814. Arjuna Das v State of Orissa, 2000 Cr LJ 3601 (Ori).",
"815. Devisingh v State of MP, 1993 Cr LJ 1301 (MP).",
"816. Anant Nathu Mankar v State of Maharashtra, 2011 Cr LJ 2713 (Bom).",
"817. Kulamani Sahu v State of Orissa, 1994 Cr LJ 2245 (Ori). Sangeeta Kumari v State of",
"Jharkhand, 2003 Cr LJ 1734 (Jha); Vishwambhar Narayan Jadhav v Mallappa Sangramappa",
"Mallipatil, AIR 2009 SC 854 [LNIND 2008 SC 2349] : (2007) 15 SCC 600. See section 326A and",
section 326B.,
"818. AC Gangadhar v State of Karnataka, AIR 1998 SC 2381 [LNIND 1998 SC 506] : 1998 Cr LJ",
3602 the sentence of imprisonment for one year was not excessive in view of the injury caused.,
"Melampati v GM Prasad, 2000 Cr LJ 3449 : AIR 2000 SC 2195 [LNIND 2000 SC 745] accused",
"persons caused too many injuries with axe, knife and other sharp weapons, the victim died on",
"the spot. Some of them acquitted by the High Court. In reference to the remaining two, the",
Supreme Court found failure of prosecution to prove anything against them.,
"819. Mathai v State of Kerala, 2005 Cr LJ 898 : AIR 2005 SC 710 [LNIND 2005 SC 37] : (2005) 3",
"SCC 260 [LNIND 2005 SC 37] , no hard and fast rule can be applied for assessing proper",
sentence. Also a long passage of time cannot always be determinative factor. Major portion of,
"the sentence awarded was already suffered, it was reduced to the period undergone.",
"820. Mohd Ibrahim v State of AP, 1993 Cr LJ 2489 (AP).",
"821. Ganesh Datt v State of Uttarakhand, 2014 Cr LJ 3128 : AIR 2014 SC 2521 [LNIND 2014 SC",
186] .,
"822. State of Bihar v Ram Nath Pd, 1998 Cr LJ 679 : AIR 1998 SC 466 [LNIND 1997 SC 1581] .",
"823. Heeralal Ramlal Parmar v State, 1998 Cr LJ 574 (Bom). The court said that ends of justice",
would be served if the jail sentence was reduced to the period already undergone and accused,
"persons directed to pay fine of Rs. 15,000 each.",
"824. State of Haryana v Mange Ram, AIR 2002 SC 558 : 2003 Cr LJ 830 .",
"825. Central Bureau of Investigation v Kishore Singh, (2011) 6 SCC 369 [LNIND 2010 SC 1033] :",
(2011) 2 SCC (Cr) 970 : AIR 2011 SC (Supp) 584.,
"826. Mangal Singh v Kishan Singh, AIR 2009 SC 1535 [LNIND 2008 SC 2280] : (2009) 17 SCC",
303 [LNIND 2008 SC 2280] .,
"827. Pooran Singh Seera Alias Pooran Meena v State of Rajasthan, 2011 Cr LJ 2100 (Raj); Neelam",
"Bahal v State of Uttarakhand, AIR 2010 SC 428 [LNIND 2009 SC 2056] : (2010) 2 SCC 229 [LNIND",
2009 SC 2056] .,
"828. State of MP v Kashiram, (2009) 4 SCC 26 [LNIND 2009 SC 215] : AIR 2009 SC 1642 [LNIND",
2009 SC 215] .,
"829. Mangal Singh v Kishan Singh, AIR 2009 SC 1535 [LNIND 2008 SC 2280] : (2009) 17 SCC",
303 [LNIND 2008 SC 2280] .,
"830. Dhandapani v Dhandapani, 1995 Cr LJ 3099 (Mad), relying on State of UP v Manbodhan Lal,",
"AIR 1957 SC 912 [LNIND 1957 SC 93] : 1958 SCJ 150 [LNIND 1957 SC 93] and Re Rayar, 1982",
"Mad LW (Cr) 47 : 1982 Cr LJ (NOC) 122 . Mangal Singh v Kishan Singh, AIR 2009 SC 1535 [LNIND",
2008 SC 2280] : (2009) 17 SCC 303 [LNIND 2008 SC 2280] .,
"831. Vishwambhar Narayan Jadhav v Mallappa Sangramappa Mallipatil, AIR 2009 SC 854 [LNIND",
2008 SC 2349] : (2007) 15 SCC 600 [LNIND 2008 SC 2349] .,
"832. Jagat Pal Singh v State of Haryana, AIR 2000 SC 3622 ; Santokh Singh v State of Rajasthan,",
"2000 Cr LJ 1410 (Raj), the accused inflicted solitary sword blow on the head of the victim,",
"convicted under section 326, the incident took place 16 years ago, the accused had remained in",
"jail for two months, sentence of three years RI reduced to one year RI. Bhanwar Lal v State of",
"Rajasthan, 2000 Cr LJ 1472 (Raj), another case in which sentence of two years RI was reduced",
"to one year RI. Syed Shafiq Ahmed v State of Maharashtra, 2002 Cr LJ 1403 (Bom) conviction for",
throwing acid on his estranged wife and her relatives and disfiguring them. Hari Ram v State of,
"Rajasthan, 2000 Cr LJ 1027 (Raj), the accused caused grievous hurt with a sharp weapon on the",
neck of the victim. Other accused persons were released on probation. He had remained in jail,
for two months and 18 days. Sentence reduced to the period already undergone. Sat Narain v,
"State, 2000 Cr LJ 1018 (Del), the accused had undergone some part of the sentence. He had",
faced the trauma of criminal proceedings for 23 years. His sentence was reduced to the period,
"already undergone. State of Maharashtra v Harishchandra Tukaram, 1997 Cr LJ 612 (Bom), each",
of the four accused persons were in jail for a period of 10 months. Instead of sending them to,
"jail, the court directed them to pay a fine of Rs. 10,000 to be paid to the victim by way of",
"compensation. State of Maharashtra v Hindurao Daulu, 1997 Cr LJ 1649 (Bom), accused was of",
27 years. He could not be said to be a young person for showing any leniency. State of Gujarat v,
"Sivapan Day, 1997 Cr LJ 2032 (Gau), the accused was a young man, 17 years had elapsed since",
the offence. He got married and had two kids. Taking into view the manner of killing and making,
"a woman husbandless, the accused was sentenced to 3½ years RI and a fine of Rs. 1,000.",
"Tamilselvan v Union Territory of Pondicherry, 1997 Cr LJ 2094 (Mad), the complainant, a",
"personnel officer, had initiated disciplinary proceedings against the accused, who attacked him",
and caused grevious hurt. This was viewed as a heinous crime. Punishment of fine was,
imposed.,
"833. R v Williams, (2000) 2 Cr App R (S) 380 [CA (Crim Div)]. R v Hennessey, (2000) 2 Cr App R",
"(S) 480 [CA (Crim Div)], attack on wife, following arguments, causing 16 wounds, including two",
"stab wounds, six years' imprisonment. R v Hyles, (2001) 1 Cr App R (S) 26 [CA (Crim Div)], the",
accused came to his woman friend. He believed that she had with the help of two men sold his,
car. He asked for the price. He came back after some time with a kettle of hot water and poured,
"it on her injuring her, five years' imprisonment. R v Bishop, (2000) 2 Cr App R (S) 416 [CA (Crim",
"Div)], causing severe injuries to a woman in a club by thrusting a beer bottle against her face;",
"four years' imprisonment. R v Jones, (2001) 1 Cr App R (3) 116 [CA (Crm Div)], attack on police",
man by chasing him with a vehicle. The fact that the victims were police officers increased the,
"gravity of the offence, sentence of five years' imprisonment.",
"834. Suresh Babu v State of AP, (1987) 2 JT 361 .",
"835. Surendra Nath Mohanty v State of Orissa, AIR 1999 SC 2181 [LNIND 1999 SC 482] .",
"836. Ramlal v State of Jammu and Kashmir, AIR 1999 SC 895 [LNIND 1999 SC 60] .",
837. Supra.,
"838. Jalaluddin v State of UP, 2001 AIR SCW 2266.",
"839. Bankat v State, AIR 2005 SC 368 [LNIND 2004 SC 1183] .",
"840. Ramgopal v State of MP, 2010 (7) Scale 711 [LNIND 2010 SC 690] .",
"841. Gian Singh v State of Punjab, (2012) 10 SCC 303 [LNIND 2010 SC 1128] : 2012 (9) Scale",
257 .,
THE INDIAN PENAL CODE,
CHAPTER XVI OF OFFENCES AFFECTING THE HUMAN BODY OF,
OFFENCES AFFECTING LIFE,
"Of the Causing of Miscarriage, of Injuries to unborn Children, of the",
"Exposure of Infants, and of the Concealment of Births.",
"[s 326A] Voluntarily causing grievous hurt by use of acid, etc.",
"Whoever causes permanent or partial damage or deformity to, or burns or maims or",
"disfigures or disables, any part or parts of the body of a person or causes grievous",
"hurt by throwing acid on or by administering acid to that person, or by using any other",
means with the intention of causing or with the knowledge that he is likely to cause,
"such injury or hurt, shall be punished with imprisonment of either description for a",
term which shall not be less than ten years but which may extend to imprisonment for,
"life, and with fine:",
Provided that such fine shall be just and reasonable to meet the medical expenses of,
the treatment of the victim:,
Provided further that any fine imposed under this section shall be paid to the,
victim.]842.,
COMMENTS,
The section is introduced on the basis of the recommendations of Justice JS Verma,
Committee.843.,
[s 326A.1] Gravity of injury not necessary.—,
"Merely because the title to section 326A speaks about grievous hurt by use of acid, it is",
not a requirement under the section that the injuries caused should be invariably,
"grievous. Even if the injuries are simple, the mere act of throwing or attempt would",
attract the offence under sections 326A and 326B.844.,
[s 326A.2] Fine mandatory and reasonable.—,
The fine is mandatory and the quantum should be just and reasonable in the sense that,
it should be sufficient to meet the medical expenses for the treatment of the victim.,
"Therefore, the second proviso under section 326A requires that the fine imposed",
should be paid to the litigant.845.,
"842. Ins. by the Criminal Law (Amendment) Act, 2013 (13 of 2013), section 5 (w.e.f. 3-2-2013).",
"843. Report of Justice JS Verma Committee – in Paras 4 to 9 of Chapter 5, at pp 146 to 148,",
"wherein references were also made to the decision of Sachin Jana v State of WB, (2008) 3 SCC",
390 [LNIND 2008 SC 167] : 2008 (2) Scale 2 [LNIND 2008 SC 167] : 2008 Cr LJ 1596 and the,
"226th Report of Law Commission of India, July 2008 at Para 3.",
"844. Maqbool v State of UP, AIR 2018 SC 5101 .",
"845. Maqbool v State of UP, AIR 2018 SC 5101 .",
THE INDIAN PENAL CODE,
CHAPTER XVI OF OFFENCES AFFECTING THE HUMAN BODY OF,
OFFENCES AFFECTING LIFE,
"Of the Causing of Miscarriage, of Injuries to unborn Children, of the",
"Exposure of Infants, and of the Concealment of Births.",
[[s 326B] Voluntarily throwing or attempting to throw acid.,
Whoever throws or attempts to throw acid on any person or attempts to administer,
"acid to any person, or attempts to use any other means, with the intention of causing",
permanent or partial damage or deformity or burns or maiming or disfigurement or,
"disability or grievous hurt to that person, shall be punished with imprisonment of",
either description for a term which shall not be less than five years but which may,
"extend to seven years, and shall also be liable to fine.",
"Explanation I.—For the purposes of section 326A and this section, ""acid"" includes any",
"substance which has acidic or corrosive character or burning nature, that is capable",
of causing bodily injury leading to scars or disfigurement or temporary or permanent,
disability.,
"Explanation 2.—For the purposes of section 326A and this section, permanent or",
partial damage or deformity shall not be required to be irreversible.]846.,
COMMENTS.—,
"While section 326-A focuses more on the grievous hurt resulting from the use of acid,",
in section 326-B the legislative focus is more on the act of throwing or attempting to,
throw acid with the intention of causing grievous hurt of the nature.,
[s 326B.1] Guidelines.—,
"The Supreme Court in Laxmi v UOI,847. directed the state to consider (i) Enactment of",
appropriate provision for effective regulation of sale of acid in the States/Union,
"Territories. (ii) Measures for the proper treatment, after care and rehabilitation of the",
victims of acid attack and needs of acid attack victims. (iii) Compensation payable to,
acid victims by the State/or creation of some separate fund for payment of,
compensation to the acid attack victims. In a subsequent order in the same case the,
Supreme Court issued many directions to curb the menace of acid attacks. [See the,
Box with 'Supreme Court Guidelines to prevent Acid Attacks'.],
Supreme Court Guidelines to prevent Acid Attacks,
"7.(i) Over the counter, sale of acid is completely prohibited unless the seller maintains a",
log/register recording the sale of acid which will contain the details of the person(s) to,
whom acid(s) is/are sold and the quantity sold. The log/register shall contain the,
address of the person to whom it is sold.,
(ii) All sellers shall sell acid only after the buyer has shown:,
(a) a photo ID issued by the Government which also has the address of the person.,
(b) specifies the reason/purpose for procuring acid.,
(iii) All stocks of acid must be declared by the seller with the concerned Sub-Divisional,
Magistrate (SDM) within 15 days.,
(iv) No acid shall be sold to any person who is below 18 years of age.,
"(v) In case of undeclared stock of acid, it will be open to the concerned SDM to",
"confiscate the stock and suitably impose fine on such seller up to 50,000/-",
"(vi) The concerned SDM may impose fine up to 50,000/- on any person who commits",
breach of any of the above directions.,
"8. The educational institutions, research laboratories, hospitals, Government",
"Departments and the departments of Public Sector Undertakings, who are required to",
"keep and store acid, shall follow the following guidelines:",
(i) A register of usage of acid shall be maintained and the same shall be filed with the,
concerned SDM.,
(ii) A person shall be made accountable for possession and safe keeping of acid in,
their premises.,
(iii) The acid shall be stored under the supervision of this person and there shall be,
compulsory checking of the students/personnel leaving the laboratories/place of,
storage where acid is used.,
[Laxmi v UOI.848.],
"846. Ins. by the Criminal Law (Amendment) Act, 2013 (13 of 2013), section 5 (w.e.f. 3-2-2013).",
"847. Laxmi v UOI, 2013 (9) Scale 291 .",
"848. Laxmi v UOI, 2013 (9) Scale 291 .",
THE INDIAN PENAL CODE,
CHAPTER XVI OF OFFENCES AFFECTING THE HUMAN BODY OF,
OFFENCES AFFECTING LIFE,
"Of the Causing of Miscarriage, of Injuries to unborn Children, of the",
"Exposure of Infants, and of the Concealment of Births.",
"[s 327] Voluntarily causing hurt to extort property, or to constrain to an illegal",
act.,
"Whoever voluntarily causes hurt, for the purpose of extorting from the sufferer, or",
"from any person interested in the sufferer, any property or valuable security, or of",
constraining the sufferer or any person interested in such sufferer to do anything,
"which is illegal or which may facilitate the commission of an offence, shall be",
punished with imprisonment of either description for a term which may extend to ten,
"years, and shall also be liable to fine.",
COMMENT.—,
"This is an aggravated form of the offence of hurt and is severely punishable, because",
the object of causing it is to extort property from the sufferer. Where one of the five,
persons accused of murder was armed with a sharp-edged weapon but inflicted only,
"one injury by the blunt side of his weapon, he could only be said to have shared the",
common intention of causing simple injury and was liable under section 327 and not,
under section 300.849.,
"849. Dhin Singh v State of Punjab, 1995 Cr LJ 4167 : AIR 1995 SC 2451 .",
THE INDIAN PENAL CODE,
CHAPTER XVI OF OFFENCES AFFECTING THE HUMAN BODY OF,
OFFENCES AFFECTING LIFE,
"Of the Causing of Miscarriage, of Injuries to unborn Children, of the",
"Exposure of Infants, and of the Concealment of Births.",
"[s 328] Causing hurt by means of poison, etc., with intent to commit an",
offence.,
Whoever administers to or causes to be taken by any person any poison or any,
"stupefying, intoxicating or unwholesome drug, or other thing with intent to cause hurt",
"to such person, or with intent to commit or to facilitate the commission of an offence",
"or knowing it to be likely that he will thereby cause hurt, shall be punished with",
"imprisonment of either description for a term which may extend to ten years, and",
shall also be liable to fine.,
COMMENT.—,
The offence under this section is complete even if no hurt is caused to the person to,
"whom the poison or any other stupefying, intoxicating, or unwholesome drug is",
administered. This section is merely an extension of the provisions of section 324.,
Under section 324 actual causing of hurt is essential: under this section mere,
administration of poison is sufficient to bring the offender to justice. In order to prove,
an offence under section 328 the prosecution is required to prove that the substance in,
"question was a poison, or any stupefying, intoxicating or unwholesome drug, etc., and",
that the accused administered the substance to the complainant or caused the,
complainant to take such substance and further that he did so with intent to cause hurt,
"or knowing it to be likely that he would thereby cause hurt, or with the intention to",
"commit or facilitate the commission of an offence. It is, therefore, essential for the",
prosecution to prove that the accused was directly responsible for administering,
"poison, etc., or causing it to be taken by any person, through another. In other words,",
the accused may accomplish the act by himself or by means of another. In either,
"situation direct, reliable and cogent evidence is necessary.850.",
[s 328.1] Section 328 and section 376.—,
Accused offered the complainant/prosecutrix a cold drink (Pepsi) allegedly containing,
a poisonous/intoxicating substance. According to the complainant/prosecutrix she felt,
"inebriated after taking the cold drink. In her aforesaid state, the appellant-accused",
started misbehaving with her. There were no scientific materials to prove the,
allegations and hence the proceedings were held liable to be quashed.851.,
[s 328.2] Causing unwholesome thing to be taken.—,
"Where the accused mixed milk-bush juice in his toddy pots, knowing that if drunk by a",
"person it would cause injury, with the intention of detecting an unknown thief who was",
"always in the habit of stealing his toddy, and the toddy was drunk by some soldiers who",
"purchased it from an unknown vendor, it was held that he was guilty under this",
section.852.,
[s 328.3] Hooch tragedies.—,
Prosecution case is that 70 persons died after having consumed liquor from the shops,
"and sub-shops which were catered by the firm named ""Bee Vee Liquors"" and 24 lost",
"eyesights permanently, not to speak of many others who became prey of lesser",
injuries. It was the liquor supplied by the firm to the shops and sub-shops which was,
"consumed; and so, it has to be held that the consumers were made to take the liquor",
"supplied by the firm. On facts, the requirements of section 328 being present, the",
conviction under section 328 was held rightful.853.,
"[s 328.4] Charge under section 304, Conviction under section 328.—",
The charge under section 304 framed against the appellant was with definite allegation,
of culpable homicide not amounting to murder by reason of administration of drug,
without taking precaution for reaction there from. This is totally different from causing,
hurt by means of administration of unwholesome drug. On no count a definite charge,
"of culpable homicide can be an error for causing hurt. Going by section 214 Cr PC,",
1973 in every charge words used in describing an offence shall be deemed to have,
been used in the sense attached to them by law under which such offence is,
"punishable. Therefore, to construe the section relating to culpable homicide as only an",
error for causing hurt by unwholesome drug will lead to be misleading so far as the,
accused is concerned resulting in failure of justice so far as his opportunity to defend,
is concerned.854.,
"850. Joseph Kurian v State of Kerala, AIR 1995 SC 4 [LNIND 1994 SC 927] : (1995) 1 Cr LJ 502 :",
(1994) 6 SCC 535 [LNIND 1994 SC 927] .,
"851. Prashant Baharti v State of NCT Delhi, 2013 (1) Scale 652 [LNIND 2013 SC 78] .",
"852. Dhania Daji, (1868) 5 BHC (Cr C) 59. Where a person mixed 2.64% methyl in arrack not",
"knowing that such a small quantity is likely to cause death, having been acquitted under section",
"304, was also acquitted under this section; Joseph Kurian v State of Kerala, AIR 1995 SC 4",
[LNIND 1994 SC 927] : (1995) 1 Cr LJ 502 : (1994) 6 SCC 535 [LNIND 1994 SC 927] .,
"853. EK Chandrasenan v State of Kerala, AIR 1995 SC 1066 [LNIND 1995 SC 88] : (1995) 2 SCC",
"99 [LNIND 1995 SC 88] ; Ravinder Singh v State of Gujarat, 2013 Cr LJ 1832 (SC) : AIR 2013 SC",
"1915 [LNIND 2013 SC 151] ; Chandran @ Manichan v State, AIR 2011 SC 1594 [LNIND 2011 SC",
"358] : (2011) 5 SCC 161 [LNIND 2011 SC 358] ; See Joseph Kurian v State of Kerala, AIR 1995 SC",
4 [LNIND 1994 SC 927] : (1995) 1 Cr LJ 502 : (1994) 6 SCC 535 [LNIND 1994 SC 927] in which,
accused are acquitted under section 328 on facts.,
"854. Radha Sasidharan v State of Kerala, 2006 Cr LJ 4702 (Ker).",
THE INDIAN PENAL CODE,
CHAPTER XVI OF OFFENCES AFFECTING THE HUMAN BODY OF,
OFFENCES AFFECTING LIFE,
"Of the Causing of Miscarriage, of Injuries to unborn Children, of the",
"Exposure of Infants, and of the Concealment of Births.",
"[s 329] Voluntarily causing grievous hurt to extort property, or to constrain to",
an illegal act.,
Whoever voluntarily causes grievous hurt for the purpose of extorting from the,
"sufferer or from any person interested in the sufferer, any property or valuable",
"security, or of constraining the sufferer or any person interested in such sufferer to do",
"anything that is illegal or which may facilitate the commission of an offence, shall be",
"punished with 855.[imprisonment for life], or imprisonment of either description for a",
"term which may extend to ten years, and shall also be liable to fine.",
COMMENT.—,
"This section is similar to section 327, the only difference being that the hurt caused",
under it is grievous.856. Where a grievous hurt was caused to obstruct the person from,
"deposing in Court, the Court said that it amounted to forcing him to commit an act",
which was illegal. Framing of charge under the section was not improper.857. In this,
"provision the words ""for the purposes of extorting"" are most important to meet the",
argument of learned counsel for appellant. This will include an attempt to extort also.,
"This provision would be attracted even if extortion is not complete. Section 329, IPC,",
1860 deals with grievous hurt caused for the particular purpose that is extortion or,
other purposes mentioned in the section. The offence of extortion may or may not have,
been completed. Two appellants along with others attacked the complainant with,
"knives. Two appellants with one more, each stabbed the complainant. They were held",
liable for each other's acts because they acted in concert to extort money.858.,
"855. Subs. by Act 26 of 1955, section 117 and Sch, for ""transportation for life"" (w.e.f. 1-1-1956).",
"856. Phani Bhusban Das v State of WB, AIR 1995 SC 70 : (1995) 1 Cr LJ 551 , 21-year old",
"incident, injuries by lathi blows, conviction under this section maintained.",
"857. Ameen v State of MP, 2001 Cr LJ 1947 (MP).",
"858. Virendra Kumar v State of MP, 1998 Cr LJ 2170 (MP).",
THE INDIAN PENAL CODE,
CHAPTER XVI OF OFFENCES AFFECTING THE HUMAN BODY OF,
OFFENCES AFFECTING LIFE,
"Of the Causing of Miscarriage, of Injuries to unborn Children, of the",
"Exposure of Infants, and of the Concealment of Births.",
"[s 330] Voluntarily causing hurt to extort confession, or to compel restoration",
of property.,
Whoever voluntarily causes hurt for the purpose of extorting from the sufferer or from,
"any person interested in the sufferer, any confession or any information which may",
"lead to the detection of an offence or misconduct, or for the purpose of constraining",
the sufferer or any person interested in the sufferer to restore or to cause the,
"restoration of any property or valuable security or to satisfy any claim or demand, or",
to give information which may lead to the restoration of any property or valuable,
"security, shall be punished with imprisonment of either description for a term which",
"may extend to seven years, and shall also be liable to fine.",
ILLUSTRATIONS,
"(a) A, a police-officer, tortures Z in order to induce Z to confess that he committed a",
crime. A is guilty of an offence under this section.,
"(b) A, a police-officer, tortures B to induce him to point out where certain stolen",
property is deposited.,
A is guilty of an offence under this section.,
"(c) A, a revenue officer, tortures Z in order to compel him to pay certain arrears of",
revenue due from Z.,
A is guilty of an offence under this section.,
"(d) A, a zamindar, tortures a raiyat in order to compel him to pay his rent. A is guilty",
of an offence under this section.,
COMMENT.—,
This section is similar to section 327 which deals with causing of hurt for the purpose,
of extorting property or valuable security. It punishes the inducing of a person by,
"causing hurt to make a statement, or a confession, having reference to an offence or",
misconduct; and whether that offence or misconduct has been committed is wholly,
immaterial.859. An offence under this section is made out if it is proved that the,
accused caused hurt to extort confession or any information. If the victim dies later it,
is not necessary to prove that death was a result of the hurt caused.860. The offence is,
complete as soon as the hurt is caused to extort confession or any information.,
[s 330.1] Custodial Torture.—,
"Though sections 330 and 331 of the IPC, 1860 make punishable those persons who",
cause hurt for the purpose of extorting the confession by making the offence,
"punishable with sentence up to 10 years of imprisonment, but the convictions, as",
experience shows from track record have been very few compared to the considerable,
increase of such onslaught because the atrocities within the precincts of the police,
station are often left without much traces or any ocular or other direct evidence to,
prove as to who the offenders are. Disturbed by this situation the Law Commission in,
"its 113th Report recommended amendments to the Indian Evidence Act, 1872 so as to",
provide that in the prosecution of a police officer for an alleged offence of having,
"caused bodily injuries to a person while in police custody, if there is evidence that the",
"injury was caused during the period when the person was in the police custody, the",
Court may presume that the injury was caused by the police officer having the custody,
of that person during that period unless the police officer proves to the contrary. The,
onus to prove the contrary must be discharged by the police official concerned.,
"Keeping in view the dehumanising aspect of the crime, the flagrant violation of the",
fundamental rights of the victim of the crime and the growing rise in the crimes of this,
"type, where only a few come to light and others don't, the Government and the",
legislature must give serious thought to the recommendation of the Law Commission,
and bring about the appropriate changes in the law not only to curb the custodial crime,
but also to see that the custodial crime does not go unpunished. The Courts are also,
"required to have a change in their outlook approach, appreciation and attitude,",
particularly in cases involving custodial crimes and they should exhibit more sensitivity,
"and adopt a realistic rather than a narrow technical approach, while dealing with the",
"cases of custodial crime so that as far as possible within their powers, the truth is",
found and guilty should not escape so that the victim of the crime has the satisfaction,
that ultimately the majesty of law has prevailed.861.,
Where daughter of accused and son of complainant married each other. Complainant,
and his family members were brutally tortured by police officials it was held that order,
framing charge against petitioner was proper.862.,
"Where the accused, the investigating officer and his assistant, entertained suspicion",
about two persons in a case of theft and subjected the suspects to ill-treatment to,
"extort confession or information leading to detection of stolen properties, the accused",
were held guilty of offence under section 330.863.,
"[s 330.2] Conviction under sections 302, 330 and 34 based on an unsigned",
dying declaration.—Death caused by police officers to extract confession based on,
dying declaration. Guidelines issued by the Delhi High Court that the declaration should,
carry the signature of the declarant not observed. Held that the issuance of the,
guidelines is for ensuring and for testing the genuineness of the dying declaration of,
"person, who is in the last moment of his life. Merely because there was a defect in",
"following the said guideline, which, as is now pointed out, is of a trivial nature and if the",
"dying declaration recorded is otherwise proved by ample evidence, both oral as well as",
"documentary, on the ground of such trivial defects, the whole of the dying declaration",
cannot be thrown out by the reason of such trivial defects.864.,
[s 330.3] As to the mind of the declarant.—,
"It is true that when a person is on his or her deathbed, there is no reason to state a",
falsehood but it is equally true that it is not possible to delve into the mind of a person,
who is facing death.865.,
[s 330.4] Abetment.—,
Where the accused stood by and acquiesced in an assault on a prisoner committed by,
"another policeman for the purpose of extorting a confession, it was held that he",
abetted the offence under this section.866.,
"859. Nim Chand Mookerjee, (1873) 20 WR (Cr) 41.",
"860. State of HP v Ranjit Singh, 1979 Cr LJ (NOC) 210 (HP).",
"861. Shakila Abdul Gafar Khan v Vasant Raghunath Dhoble, AIR 2003 SC 4567 [LNIND 2003 SC",
"653] : 2003 Cr LJ 4548 ; State of MP v Shyamsunder Trivedi, (1995) 4 SCC 262 [LNIND 1995 SC",
644] : (1995) 1 SCC (Cr) 715.,
"862. Ajay Kumar Singh v State (Nct of Delhi), 2007 Cr LJ 3545 (Del). Sham Kant v State, AIR 1992",
SC 1879 : 1992 Cr LJ 3243 (SC).,
"863. Sham Kant v State of Maharashtra, AIR 1992 SC 1879 : 1992 Cr LJ 3243 . Ashok K John v",
"State of UP, AIR 1997 SC 610 [LNIND 1996 SC 2177] : 1997 Cr LJ 743 , an arrestee was tortured.",
This was an infringement of fundamental rights of a citizen. He was held to be entitled to,
receive compensation from the State the amount of which would vary according to the proved,
facts of each case. Punishment under section 330 was not an adequate remedy. Jaffar Khan v,
"State of Rajasthan, 1997 Cr LJ 1571 (Raj), offence not proved. Indu Jain v State of MP, (2008) 15",
"SCC 341 [LNINDORD 2008 SC 299] : AIR 2009 SC 976 [LNIND 2008 SC 2115] : 2009 Cr LJ 951 ,",
"the case of custodial death, framing of charge under the section was dropped by the trial court",
and High Court but the Supreme Court allowed it.,
"864. Narender Kumar v State of NCT of Delhi, AIR 2016 SC 150 [LNIND 2015 SC 711] : 2015 (13)",
Scale 821 [LNIND 2015 SC 711] .,
"865. Jumni v State of Haryana, 2014 Cr LJ 1936 : 2014 (4) SCJ 36 [LNIND 2014 SC 222] .",
"866. Latifkhan v State, (1895) 20 Bom 394; Dinanath, (1940) Nag 232.",
THE INDIAN PENAL CODE,
CHAPTER XVI OF OFFENCES AFFECTING THE HUMAN BODY OF,
OFFENCES AFFECTING LIFE,
"Of the Causing of Miscarriage, of Injuries to unborn Children, of the",
"Exposure of Infants, and of the Concealment of Births.",
"[s 331] Voluntarily causing grievous hurt to extort confession, or to compel",
restoration of property.,
Whoever voluntarily causes grievous hurt for the purpose of extorting from the,
"sufferer or from any person interested in the sufferer, any confession or any",
"information which may lead to the detection of an offence or misconduct, or for the",
purpose of constraining the sufferer or any person interested in the sufferer to restore,
"or to cause the restoration of any property or valuable security, or to satisfy any claim",
or demand or to give information which may lead to the restoration of any property or,
"valuable security, shall be punished with imprisonment of either description for a term",
"which may extend to ten years, and shall also be liable to fine.",
COMMENT.—,
This section is similar to the preceding section except that the hurt caused under it,
"should be 'grievous'. Sections 330 and 331 of the IPC, 1860 provide punishment to one",
who voluntarily causes hurt or grievous hurt as the case may be to extort the,
confession or any information which may lead to the detection of an offence or,
"misconduct, thus, the Constitution as well as the statutory procedural law and law of",
Evidence condemn the conduct of any official in extorting a confession or information,
under compulsion by using any third degree methods.867. The diabolic recurrence of,
police torture resulting in a terrible scare in the minds of common citizens that their,
lives and liberty are under a new and unwarranted peril because guardians of law,
destroy the human rights by custodial violence and torture and invariably resulting in,
death. The vulnerability of human rights assumes a significance when functionaries of,
the State whose paramount duty is to protect the citizens and not to commit gruesome,
"offences against them, in reality, such functionaries perpetrate them.868.",
"867. Kartar Singh v State of Punjab, (1994) 3 SCC 569 : 1994 Cr LJ 3139 .",
"868. Dalbir Singh v State of UP, AIR 2009 SC 1674 [LNIND 2009 SC 220] : (2009) 11 SCC 376",
"[LNIND 2009 SC 220] . The anguish expressed in Gauri Shanker Sharma v State of UP, AIR 1990",
"SC 709 [LNIND 1990 SC 8] ; Bhagwan Singh v State of Punjab, 1992 (3) SCC 249 [LNIND 1992 SC",
"396] ; Smt. Nilabati Behera @ Lalita Behera v State of Orissa, AIR 1993 SC 1960 [LNIND 1993 SC",
"1167] ; Pratul Kumar Sinha v State of Bihar, 1994 Supp (3) SCC 100 ; Kewal Pati v State of UP,",
"1995 (3) SCC 600 ; Inder Singh v State of Punjab, 1995 (3) SCC 702 [LNIND 1995 SC 1381] ; State",
"of MP v Shyamsunder Trivedi, 1995 (4) SCC 262 [LNIND 1995 SC 644] and by now celebrated",
"decision in Shri DK Basu v State of WB, JT 1997 (1) SC 1 [LNIND 1996 SC 2177] seems to have",
caused not even softening of police's attitude towards the inhuman approach in dealing with,
persons in custody.,
THE INDIAN PENAL CODE,
CHAPTER XVI OF OFFENCES AFFECTING THE HUMAN BODY OF,
OFFENCES AFFECTING LIFE,
"Of the Causing of Miscarriage, of Injuries to unborn Children, of the",
"Exposure of Infants, and of the Concealment of Births.",
[s 332] Voluntarily causing hurt to deter public servant from his duty.,
Whoever voluntarily causes hurt to any person being a public servant in the discharge,
"of his duty as such public servant, or with intent to prevent or deter that person or any",
"other public servant from discharging his duty as such public servant, or in",
consequence of anything done or attempted to be done by that person in the lawful,
"discharge of his duty as such public servant, shall be punished with imprisonment of",
"either description for a term which may extend to three years, or with fine, or with",
both.,
COMMENT.—,
This section resembles section 353. Under it there is causing of hurt to the public,
"servant, under section 353 there is assault or criminal force for the same purpose.",
"Ingredients of an offence under section 332 of IPC, 1860 are:",
(1) hurt must have been caused to a public servant and,
(2) it must have been caused—,
"(a) while such public servant was acting in the discharge of his duty as such,",
or,
(b) in order to prevent or deter him from discharging his duty as a public,
servant or,
(c) in consequence of his having done or attempted to do anything in the,
lawful discharge of his duty as such a public servant.,
"Evidence necessary to establish an offence under section 332 of IPC, 1860 are:",
"(a) the accused voluntarily caused bodily pain, disease or infirmity to the victim (as",
"provided under section 321 of IPC, 1860),",
"(b) the victim of the hurt is a public servant, and",
"(c) at the time of causing of hurt, the public servant concerned was discharging his",
"duties qua public servant. An offence under section 332 of IPC, 1860 is attracted",
if the accused voluntarily caused hurt to any person being a public servant in the,
discharge of his duty. It is not necessary to establish further that hurt was,
voluntarily caused to prevent or deter that person from discharging his duty as a,
"public servant. On the other hand, if hurt was voluntarily caused to a public",
"servant, while not discharging his duty as a public servant, it is necessary to",
prove that hurt was caused with intent to prevent or deter that person or any,
"other public servant from discharging his duty. Alternatively, if hurt was",
"voluntarily caused to a public servant, while he was discharging his official duty",
"as such public servant, it is not necessary to establish further that it was so",
caused with the intention to prevent or deter that person from discharging his,
"duty as such public servant. On the other hand, even if hurt was caused",
"voluntarily to a public servant, if he was not discharging his duty as a public",
"servant at that time, it is necessary to prove additionally that hurt was caused to",
prevent or deter that person from discharging his duty as a public servant.869.,
"Where a public servant was assaulted due to an earlier private quarrel, the assault",
"having no causal connection with the duty of the public servant, the accused could not",
"be held liable under section 332 IPC, 1860. His conviction was, therefore, changed to",
"one under section 323 IPC, 1860.870.",
Accused/appellant cut the hose pipe from the train and assaulted the complainant/,
"constable when he questioned the act. According to them, the accused/appellant and",
other accused persons had gone to the extent of pulling down the complainant from,
"the train and when he was taken to the guardroom, they were shouting at him",
threatening to throw him on the railway track. Offence was clearly made out.871.,
"Where the accused persons entered the premises of a government school and abused,",
humiliated and voluntarily caused hurt to deter the Head Master of the school from his,
"duty and they abused the other teachers also, the Court did not interfere with their",
conviction under section 332.872.,
[s 332.1] Sentence.—,
"Accused, an under trial prisoner gave beatings to jail warden with a wooden plank on",
head. He was a habitual offender and also involved in other cases. Injuries caused to,
victim were grievous in nature. He also attacked other warden with sole object of,
fleeing from prison. Trial Court exercised its judicial discretion to award maximum,
punishment taking into consideration all relevant factors. Sentence imposed upon,
appellant was held proper by the High Court.873.,
"869. Rajan v State, 2011 (4) Ker LJ 157 .",
"870. D Chattaiah, 1978 Cr LJ 1473 : AIR 1978 SC 1441 . Jhamman v State of UP, 1991 Cr LJ 2970",
", refusal to give sample to a food Inspector.",
"871. Gyan Bahadur v State of MP, 2013 Cr LJ 1729 (MP).",
"872. Madhudas v State of Rajasthan, 1994 Cr LJ 3595 (Raj).",
"873. Rakesh Rai v State of Sikkim, 2012 Cr LJ 4033 (SIK).",
THE INDIAN PENAL CODE,
CHAPTER XVI OF OFFENCES AFFECTING THE HUMAN BODY OF,
OFFENCES AFFECTING LIFE,
"Of the Causing of Miscarriage, of Injuries to unborn Children, of the",
"Exposure of Infants, and of the Concealment of Births.",
[s 333] Voluntarily causing grievous hurt to deter public servant from his duty.,
Whoever voluntarily causes grievous hurt to any person being a public servant in the,
"discharge of his duty as such public servant, or with intent to prevent or deter that",
"person or any other public servant from discharging his duty as such public servant,",
or in consequence of anything done or attempted to be done by that person in the,
"lawful discharge of his duty as such public servant, shall be punished with",
"imprisonment of either description for a term which may extend to ten years, and",
shall also be liable to fine.,
COMMENT.—,
This section provides for the aggravated form of the offence dealt with in the last,
section. The hurt caused under it must be grievous. Where the accused gave fist blow,
"on the face of the victim which caused loosening of one tooth, but the victim was",
"discharged from the hospital on the same day, moved about throughout the day and",
"attended his duties the next day, it was held that the injury could not be regarded as",
grave and serious. It was a case of simple hurt.874. The basic differences between,
"sections 333 and 325 IPC, 1860 are that section 325 gets attracted where grievous hurt",
"is caused, whereas section 333 gets attracted if such hurt is caused to a public",
servant.875.,
Complainant had sustained grievous hurt while he was on patrolling duty. He was,
questioning the unauthorised parking of a pickup van. He was taken inside the van then,
kicked and punched. Witnesses corroborated each other on material particulars.,
Conviction was upheld.876. Where a police constable was assaulted by unknown,
"persons and no identification parade was conducted, it was held that accused cannot",
be convicted unless it is proved that the injury was inflicted by the accused.877.,
The accused was working as a watchman in an office of FCI and misbehaved twice,
with members of the staff in respect of which complaints were made to the District,
Manager who procured suspension order of the accused from the higher official and,
served it on him. The accused attacked and beat the Manager. It was held that it,
"amounted to preventing and deterring a public servant, from acting in lawful discharge",
of his duty and the accused was liable to be convicted under section 333.878.,
[s 333.1] Irrationality in sentence.—,
It is to be noted that there is terrible irrationality in the sentence prescribed for,
"committing offences under section 333, IPC, 1860. The said offence is in combination",
of offence — defined under section 320 and the offence of assault on a public servant,
"punishable under section 333, IPC, 1860. The offence of grievous hurt is punishable",
"under section 326, IPC, 1860 with life imprisonment or with the imprisonment of either",
"description for a term, which may extend to 10 years and shall also be liable to fine.",
Whereas a higher form of manifested offence under section 333 is made punishable,
only with imprisonment of either description for a term which may extend to 10 years,
and shall also be liable to fine. The different types of injuries enumerated under section,
"320 do not ensue same amount of harm, pain and disability. Therefore, proportionate to",
"the nature of grievous injuries and its consequences, the punishment should be",
redefined. So also the punishment for an offence under section 333 should be,
redefined.879.,
"874. VB Murthy v State of WB, 1995 Cr LJ 1819 (Cal). The accused was required to pay a fine of",
Rs. 2000 and released on probation. He was an unemployed young graduate with no criminal,
"record or leaning. Siyasaran v State of MP, 1995 Cr LJ 2126 (SC), here a fist blow was given to a",
"surgeon in a Government hospital, benefit of probation was not given because violence against",
hospital doctors was not tolerable. The sentence was reduced to the period already undergone,
"and a fine of Rs. 50,000 was imposed in lieu of compensation. State of MP v Saleem, 2005 Cr LJ",
"3435 : AIR 2005 SC 3996 [LNIND 2005 SC 1070] : (2005) 5 SCC 554 [LNIND 2005 SC 1070] ,",
knife injury to deter a public servant.,
"875. State of MP v Imrat, AIR 2008 SC 2967 [LNIND 2008 SC 1391] : (2008) 11 SCC 523 [LNIND",
2008 SC 1391] .,
"876. Chand Ram v State of HP, 2013 Cr LJ 1415 (HP).",
"877. State v Tidda alias Sonu, 2008 (4) Crimes 623 (MP). See also State v Mohammed Sadiq,",
2006 Cr LJ 3391 (Kar).,
"878. Lam Jaya Rao v State of AP, 1992 Cr LJ 2127 (AP).",
"879. State of Karnataka v Mohammed Sadiq, 2006 Cr LJ 3391 (Kar).",
THE INDIAN PENAL CODE,
CHAPTER XVI OF OFFENCES AFFECTING THE HUMAN BODY OF,
OFFENCES AFFECTING LIFE,
"Of the Causing of Miscarriage, of Injuries to unborn Children, of the",
"Exposure of Infants, and of the Concealment of Births.",
[s 334] Voluntarily causing hurt on provocation.,
"Whoever voluntarily causes hurt on grave and sudden provocation, if he neither",
intends nor knows himself to be likely to cause hurt to any person other than the,
"person who gave the provocation, shall be punished with imprisonment of either",
"description for a term which may extend to one month, or with fine which may extend",
"to five hundred rupees, or with both.",
COMMENT.—,
This section serves as a proviso to sections 323 and 324. See Comment on Exception,
1 to section 300.880.,
[s 334.1] Sentence.—,
"High Court imposed a sentence of one year for offence under section 334 IPC, 1860",
"whereas the maximum sentence for offence under section 334 IPC, 1860 is one month.",
The sentence reduced to one month.881.,
"880. See also Bosco Lawrence Fernandes v State of Maharashtra, (1995) 2 Cr LJ 2007 (Bom),",
covered under section 34.,
"881. Ahmed Ali v State of Tripura, (2009) 6 SCC 704 [LNIND 2009 SC 1043] : (2009) 3 SCC (Cr)",
12.,
THE INDIAN PENAL CODE,
CHAPTER XVI OF OFFENCES AFFECTING THE HUMAN BODY OF,
OFFENCES AFFECTING LIFE,
"Of the Causing of Miscarriage, of Injuries to unborn Children, of the",
"Exposure of Infants, and of the Concealment of Births.",
[s 335] Voluntarily causing grievous hurt on provocation.,
"Whoever 882.[voluntarily] causes grievous hurt on grave and sudden provocation, if he",
neither intends nor knows himself to be likely to cause grievous hurt to any person,
"other than the person who gave the provocation, shall be punished with imprisonment",
"of either description for a term which may extend to four years, or with fine which may",
"extend to two thousand rupees, or with both.",
"Explanation.—The last two sections are subject to the same provisos as Exception 1,",
section 300.,
COMMENT.—,
"This section serves as a proviso to sections 325 and 326. However, in the absence of",
"the exact words being recorded, the abuses even involving mother and sister which are",
"commonly indulged in by rustic villagers like the accused, could not be regarded as",
grave and sudden within the meaning of this section.883. Unless there is sudden and,
"grave provocation, section 335 will not be attracted.884.",
"882. Ins. by Act 8 of 1882, section 8.",
"883. State of Maharashtra v BR Patil, 1978 Cr LJ 411 (Bom). Arjunan v State of TN, 1997 Cr LJ",
"2327 (Mad), in a dispute over cutting of tree, the accused pelted stones and caused injuries to",
the victim who died and witnesses were injured. The deceased had caused the provocation.,
"Accused was liable to be convicted under section 335 and not section 325. State of MP v Rajesh,",
"1997 Cr LJ 2466 (MP), objection of accused to construction of a urinal which caused ugly sight",
"to the accused. This caused provocation. For injuries caused under such provocation, the",
accused was held to be entitled to the benefit of section 335. Another accused who was not,
"provoked was convicted under section 324. Ahmed Ali v State of Tripura, (2009) 6 SCC 704",
"[LNIND 2009 SC 1043] : (2009) 3 SCC (Cr) 12, the maximum term under the section being four",
"years, the accused was sentenced to two years with a fine of Rs. 1,000. He being a person of",
"tender years, the period was reduced to three months maintaining the fine amount.",
"884. CBI v Kishore Singh, (2011) 6 SCC 369 [LNIND 2010 SC 1033] : (2011) 2 SCC (Cr) 970 : AIR",
"2011 SC (Supp) 584; Upparapalli Tirumala Rao v State of AP, 2004 Cr LJ 4514 (AP).",
THE INDIAN PENAL CODE,
CHAPTER XVI OF OFFENCES AFFECTING THE HUMAN BODY OF,
OFFENCES AFFECTING LIFE,
"Of the Causing of Miscarriage, of Injuries to unborn Children, of the",
"Exposure of Infants, and of the Concealment of Births.",
[s 336] Act endangering life or personal safety of others.,
Whoever does any act so rashly or negligently as to endanger human life or the,
"personal safety of others, shall be punished with imprisonment of either description",
"for a term which may extend to three months, or with fine which may extend to two",
"hundred and fifty rupees, or with both.",
COMMENT.—,
"Rash and negligent acts which endanger human life, or the personal safety of others,",
"are punishable under this section even though no harm follows, and are additionally",
"punishable under sections 337 and 338 if they cause hurt, or grievous hurt. The word",
"""rashly"" means something more than mere inadvertence or inattentiveness or want of",
ordinary care; it implies an indifference to obvious consequences and to the rights of,
others.885. An intentional act done with consideration cannot be a rash and negligent,
act.886.,
Many specific acts of rashness or negligence likely to endanger life or to cause hurt or,
injury are made punishable by Chapter XIV.,
"Section 279 punishes rash driving or riding; section 280, rash navigation of a vessel;",
"section 284, rash or negligent conduct with respect to poisonous substance; section",
"285, rash or negligent conduct with respect to any fire or combustible matter; section",
"286, rash or negligent conduct with respect to any explosive substance; section 287,",
negligent conduct with respect to any machinery in the possession of the accused;,
"section 288, negligence with respect to pulling down or repairing buildings; section 289,",
"negligence with respect to animals; section 304A, rash or negligent act causing death;",
"section 336, any rash or negligent act endangering life or personal safety of others;",
"section 337, rash or negligent act causing hurt; and section 338, rash or negligent act",
"causing grievous hurt. Like section 304A, sections 279, 336, 337 and 338 IPC, 1860 are",
"attracted for only the negligent or rash act. The scheme of sections 279, 304A, 336,",
337 and 338 leaves no manner of doubt that these offences are punished because of,
the inherent danger of the acts specified therein irrespective of knowledge or intention,
to produce the result and irrespective of the result. These sections make punishable,
the acts themselves which are likely to cause death or injury to human life.,
"885. Remal Dass, (1963) 2 Cr LJ 718 .",
"886. Kala Bhika, (1964) 67 Bom LR 223 .",
THE INDIAN PENAL CODE,
CHAPTER XVI OF OFFENCES AFFECTING THE HUMAN BODY OF,
OFFENCES AFFECTING LIFE,
"Of the Causing of Miscarriage, of Injuries to unborn Children, of the",
"Exposure of Infants, and of the Concealment of Births.",
[s 337] Causing hurt by act endangering life or personal safety of others.,
Whoever causes hurt to any person by doing any act so rashly or negligently as to,
"endanger human life, or the personal safety of others, shall be punished with",
"imprisonment of either description for a term which may extend to six months, or with",
"fine which may extend to five hundred rupees, or with both.",
COMMENT.—,
Section 304A deals with those cases where death is caused by a rash or negligent act;,
"this section, where hurt is caused. The essential ingredients of section 337, IPC, 1860",
are that whoever causes hurt to any person by doing any act so rashly or negligently as,
"to endanger human life, or the personal safety of others, shall be punished. So, one of",
the essential ingredients of this section must be that hurt must be caused to someone,
in doing an act and the person bearing to take reasonable care is said to be negligent,
of his act.887. This section applies only to acts done rashly or negligently but without,
any criminal intent. But such negligence or rashness must be proved as would,
necessarily carry with it criminal liability.888. Where the victim suffered only simple,
"injuries, section 337 is to be applied.889.",
[s 337.1] CASES.—,
"The allegation was that the accused, car driver, drove car in a rash and negligent",
manner and caused injury to a child who was playing on side of road. Evidence showed,
that the vehicle was going in middle of road and child was also playing in the middle.,
Brake skid marks on road were duly depicted in site plan. Rash or negligent act of,
driving by respondent was not proved beyond doubt. Acquittal of accused was held,
proper.890. Injured was occupant of the truck along with the petitioner and had received,
the injuries on account of the incident/accident where the truck after hitting the Motor,
"Cycle, had gone and struck against the pole. No allegation of any intention or",
knowledge on the part of the petitioner can be made to attract the offence under,
"section 325, IPC, 1860.",
[s 337.2] Section 324 vis-a-vis section 337.—,
"Essential ingredients to make out an offence under section 324 IPC, 1860 should be",
that there must be voluntarily causing hurt and also required intention. But evidence,
showed that there was no intention of petitioner/ accused to attack victim and his,
"intention was only to attack, witness because of some altercation or dispute between",
them. Petitioner/accused cannot be said to have committed the offence punishable,
"under section 324 IPC, 1860. At the same time evidence showed that victim received",
"simple injuries. Petitioner liable to be convicted under section 337 of IPC, 1860 and not",
under section 324.891.,
[s 337.3] Negligence with reference to gun.—,
The causing of hurt by negligence in the use of a gun was held to fall within the purview,
of this section rather than of section 286. But where all the evidence against the,
accused was that he went out shooting when people were likely to be in fields and that,
"a single pellet from his gun struck a man who was sitting in a field, it was held that this",
was not sufficient evidence of rashness or negligence to support a conviction under,
this section.892.,
[s 337.4] Negligent operation.—,
The accused removed intra-uterine device during the fourth month of pregnancy of the,
complainant. The latter had a premature delivery. The child died after 22 days of,
delivery. The Court said that the incident was not the direct result of the act of the,
accused. The complaint was quashed.893.,
[s 337.5] Conviction under section 279 and section 337.—,
"Whether a Court can convict a person under sections 279 and 337, IPC, 1860 for",
commission of the same act of offence and accordingly pass sentence under both the,
"sections. As the offence having been outcome of the same act, the Court should",
"punish the accused for one offence and at the same time, while passing the order of",
"sentence, the Court should also consider that when the sentence prescribed under",
"section 279, IPC, 1860 being higher it is a grave offence than the offence prescribed",
"under section 337, IPC, 1860 the accused could be punished under section 279, IPC,",
1860 only.894.,
"[s 337.6] Factories Act, 1948.—",
"Section 92 of the Factories Act, 1948 will come into play even if nobody sustains any",
injury or even if the accident does not result in death of any person. But sections 337,
"and 338, IPC, 1860 will apply where a negligent act results in causing injuries to any",
person.895.,
[s 337.7] Moral turpitude.—,
"Offence punishable under section 337 IPC, 1860 would not involve moral turpitude so",
as to remove the petitioner—accused from service.896.,
[s 337.8] Sentence.—,
Where the accused was convicted under section 337 for an incident of accident,
occurring 20 years before and he had already served a part of sentence and had,
"children of tender age, his sentence was reduced to the period already undergone.897.",
[s 337.9] Pleading guilty.—,
Pleading guilty is not a ground for the Magistrate to let off the accused with sentence,
of fine only.898.,
"887. Ashok Chandak v State of AP, 2011 Cr LJ 638 (AP).",
"888. Arumugham v Gnanasoundar, AIR 1962 Mad 362 [LNIND 1961 MAD 133] . See also Swaran",
"Singh v State, 1991 Cr LJ 1867 (Del), conviction shifted from section 338 to section 337 because",
the injury actually proved was of very simple nature. Annasaheb Bandu Patil v State of,
"Maharashtra, 1991 Cr LJ 814 , no injury was caused to anybody by bus driver's negligence in",
"suddenly braking the bus though it dashed against a pole, conviction set aside.",
"889. Alister Anthony Pareira v State of Maharashtra, 2012 Cr LJ 1160 (SC) : (2012) 2 SCC 648",
[LNIND 2012 SC 15] : AIR 2012 SC 3802 [LNIND 2012 SC 15] .,
"890. State of HP v Jawahar Lal Jindal, 2011 Cr LJ 3827 (HP); State of HP v Niti Raj alias Gogi,",
2009 Cr LJ 1922 (HP) order of acquittal reversed; for the same effect see State of HP v Varinder,
"Kumar, 2008 Cr LJ 41759 (HP).",
"891. Ch Pitchavadhmtiilu v State of AP, 2011 Cr LJ 469 (AP).",
"892. Abdus Sattar v State, (1906) 28 All 464 . State of Karnataka v Krishna, (1987) 1 SCC 538",
[LNIND 1987 SC 701] : AIR 1987 SC 861 [LNIND 1987 SC 701] : 1987 Cr LJ 776 death caused by,
"rash and negligent driving, the Supreme Court enhanced the sentence to six months' RI from",
"two months simple imprisonment, being unconscionably lenient.",
"893. Shaheed K (Dr) v PK Shahida, 1998 Cr LJ 4638 (Ker).",
"894. Md Hiran Mia v State of Tripura, 2010 Cr LJ 189 (Gau)]",
"895. Ashok Chandak v State of AP, 2011 Cr LJ 638 (AP); Ejaj Ahmad v State of Jharkhand, 2010",
Cr LJ 1953 (Jha).,
"896. Ch Pitchavadhmtiilu v State of AP, 2011 Cr LJ 469 (AP).",
"897. Hari Ram v State, 1995 Cr LJ 3152 (Del). Vasi v State of Gujarat, 2010 (15) SCC 247 [LNIND",
2010 SC 342] .,
"898. Thomas v State, 2013 Cr LJ 825 (Ker).",
THE INDIAN PENAL CODE,
CHAPTER XVI OF OFFENCES AFFECTING THE HUMAN BODY OF,
OFFENCES AFFECTING LIFE,
"Of the Causing of Miscarriage, of Injuries to unborn Children, of the",
"Exposure of Infants, and of the Concealment of Births.",
[s 338] Causing grievous hurt by act endangering life or personal safety of,
others.,
Whoever causes grievous hurt to any person by doing any act so rashly or negligently,
"as to endanger human life, or the personal safety of others, shall be punished with",
"imprisonment of either description for a term which may extend to two years, or with",
"fine which may extend to one thousand rupees, or with both.",
COMMENT.—,
"The last section provided for 'hurt', this section provides for 'grievous hurt' caused",
"under similar circumstances. Section 338, IPC, 1860 is applicable when the other",
"ingredients of section 337, IPC, 1860 are complied with and in addition to that, if a",
grievous hurt is caused to someone.899.,
[s 338.1] CASES.—Sexual intercourse causing injury.—,
A husband has not the absolute right to enjoy the person of his wife without regard to,
"the question of safety to her. Hence, where a husband had sexual intercourse with his",
"wife, aged 11 years, and she died from the injuries thereof, it was held that he was",
guilty of causing grievous hurt by doing a rash act under this section.900. Clause (6) of,
section 375 will now make the husband guilty of rape also. Where a driver of a motor,
"bus, by reason of his inattention and failure to apply brakes, pressed a person against a",
"wall, he was held to have committed an offence under this section as well as under",
section 279.901.,
[s 338.2] Running over by cart.—,
"Where a person, by allowing his cart to proceed unattended along a road, ran over a boy",
"who was sleeping on the road, it was held that he had committed an offence under",
section 337 or section 338.902.,
[s 338.3] Section 304 Part II and section 338.—,
"The scheme of sections 279, 304A, 336, 337 and 338 leaves no manner of doubt that",
these offences are punished because of the inherent danger of the acts specified,
therein irrespective of knowledge or intention to produce the result and irrespective of,
the result. These sections make punishable the acts themselves which are likely to,
cause death or injury to human life. The question is whether indictment of an accused,
"under section 304 Part II and section 338 IPC, 1860 can co-exist in a case of single",
"rash or negligent act. It can, two charges are not mutually destructive. If the act is done",
with the knowledge of the dangerous consequences which are likely to follow and if,
death is caused then not only that the punishment is for the act but also for the,
resulting homicide and a case may fall within section 299 or section 300 depending,
"upon the mental state of the accused viz., as to whether the act was done with one",
kind of knowledge or the other or the intention. Knowledge is awareness on the part of,
the person concerned of the consequences of his act of omission or commission,
indicating his state of mind. There may be knowledge of likely consequences without,
any intention. Criminal culpability is determined by referring to what a person with,
reasonable prudence would have known.903.,
"[s 338.4] Medical negligence, criminal liability.—",
"The only state of mind which is deserving of punishment is that, which demonstrates",
"an intention to cause harm to others, or where there is a deliberate willingness to",
subject others to the risk of harm. Negligent conduct does not entail an intention to,
"cause harm, but only involves a deliberate act subjecting another to the risk of harm,",
"where the actor is aware of the existence of the risk and, nonetheless, proceeds in the",
face of the risk.904.,
"[s 338.5] Offences under Factories Act, 1948.—",
"The ingredients of section 337 and section 338, IPC, 1860 and the provisions of the",
"Andhra Pradesh Fire Services Act, 1999 and the Factories Act, 1948 cannot be said to",
be one and the same. They apply to different situations for different purposes and for,
different measures to be taken by the owner or occupier of the factories. Even the,
"steps to be taken under both the enactments are different as discussed above, and",
"even if no fire accident had taken place, the provisions of Factories Act, 1948 and the",
"Fire Services Act will apply. But when there is no accident, section 337 and section 338,",
"IPC, 1860 do not apply. Sections 337 and 338, IPC, 1860 are applicable where the",
"owner or occupier, knowing very well that no preventive steps were taken and it will be",
dangerous for the workers to work in such a situation and without any due regard to the,
"consequences which a man would think and for the safety of the workers, extract work",
from them and wherein from the circumstances it appears that such an act of,
extracting work from workers amount to acting in rash and negligent manner.,
"Therefore, to attract section 337 and section 338, IPC, 1860 something more, i.e.,",
"careless and negligent act is required to be proved, even after proving of violation of",
"provisions of Fire Services Act and the Factories Act, 1948. Thus, it is clear that section",
"337 and section 338, IPC, 1860 are applicable only in aggravated situations besides",
"violation of the provisions of the Fire Services Act and the Factories Act, 1948.905. The",
expression act includes omission.906.,
"899. Ashok Chandak v State of AP, 2011 Cr LJ 638 (AP).",
"900. Hurree Mohun Mythee, (1890) 18 Cal 49 .",
"901. State of HP v Man Singh, 1995 Cr LJ 299 (HP). SD Khetani (Dr) v State, 1998 Cr LJ 2493 .",
"902. Malkaji, (1884) Unrep Cr C 198; See the Comments under sections 279 and 304A.",
"903. Alister Anthony Pareira v State of Maharashtra, 2012 Cr LJ 1160 (SC) : (2012) 2 SCC 648",
[LNIND 2012 SC 15] : AIR 2012 SC 3802 [LNIND 2012 SC 15] .,
"904. Dr PB Desai v State of Maharashtra, 2014 Cr LJ 385 : 2013 (11 ) Scale 429 [LNIND 2013 SC",
815] .,
"905. Ashok Chandak v State of AP, 2011 Cr LJ 638 (AP).",
"906. Dr PB Desai v State of Maharashtra, 2014 Cr LJ 385 : 2013 (11 ) Scale 429 [LNIND 2013 SC",
815] .,
THE INDIAN PENAL CODE,
CHAPTER XVI OF OFFENCES AFFECTING THE HUMAN BODY OF,
OFFENCES AFFECTING LIFE,
Of Wrongful Restraint and Wrongful Confinement,
[s 339] Wrongful restraint.,
Whoever voluntarily obstructs any person so as to prevent that person from,
"proceeding in any direction in which that person has a right to proceed, is said",
wrongfully to restrain that person.,
Exception.—The obstruction of a private way over land or water which a person in,
"good faith believes himself to have a lawful right to obstruct, is not an offence within",
the meaning of this section.,
ILLUSTRATION,
A obstructs a path along which Z has a right to pass. A not believing in good faith that,
he has a right to stop the path. Z is thereby prevented from passing. A wrongfully,
restrains Z.,
COMMENT.—,
"Wrongful restraint means the keeping a man out of a place where he wishes to be, and",
has a right to be.907. The slightest unlawful obstruction to the liberty of the subject to,
"go, when and where he likes to go, provided he does so in a lawful manner, cannot be",
"justified, and is punishable under this section.908.",
[s 339.1] Ingredients.—,
The section requires—,
(1) Voluntary obstruction of a person.,
(2) The obstruction must be such as to prevent that person from proceeding in any,
direction in which he has a right to proceed. The word 'voluntary' is significant. It,
connotes that obstruction should be direct. The obstructions must be a,
restriction on the normal movement of a person. It should be a physical one.,
They should have common intention to cause obstruction.909.,
"The following illustrations, given in the original Draft Code,910. further elucidate the",
meaning of this section:—,
(a) A builds a wall across a path along which Z has a right to pass. Z is thereby,
prevented from passing. A wrongfully restrains Z.,
(b) A illegally omits to take proper order with a furious buffalo which is in his,
possession and thus voluntarily deters Z from passing along a road along which,
Z has a right to pass. A wrongfully restrains Z.,
"(c) A threatens to set a savage dog at Z, if Z goes along a path along which Z has a",
right to go. Z is thus prevented from going along that path. A wrongfully,
restrains Z.,
"(d) In the last illustration, if the dog is not really savage, but if A voluntarily causes Z",
"to think that it is savage, and thereby prevents Z from going along the path, A",
wrongfully restrains Z.,
From these illustrations it will appear that a person may obstruct another by causing it,
"to appear to that other that it is impossible, difficult or dangerous to proceed, as well as",
"by causing it actually to be impossible, difficult or dangerous for that other to proceed.",
"For the offence of wrongful restraint, the necessary pre-condition is that the person",
concerned must have a right to proceed.911. It is an inevitable factor under section 339,
"of the IPC, 1860 which defines wrongful restraint that the person, who is obstructed,",
has the right to proceed in a particular direction. If section 339 and section 31 are read,
"together, it will be clear that if the accused voluntarily obstructs any person so as to",
prevent that person from proceeding in any direction in which that person has right to,
"proceed, he is said to have wrongfully restrained that person. Section 339 of the IPC,",
1860 requires that the accused should have obstructed a person from proceeding in,
any direction in which he has the right to proceed and when he obstructs any person,
and restrains him from proceeding in any direction he commits the offence of wrongful,
"restraint punishable under section 341 of the IPC, 1860.912. Whoever obstructs a",
"person from proceeding to a direction to which that person has a right to proceed,",
commits an offence of wrongful restraint. While dealing with the offence which is,
"punishable under section 341 of IPC, 1860 and which has been defined by section 339",
"of IPC, 1860 the Court is obliged to see following ingredients:",
(1) Whether the person so obstructed had a lawful right to proceed to a direction to,
which he has been obstructed;,
(2) Whether such obstruction was for enforcement of a legal right of the obstructer.,
(3) Whether such obstructer obstructed such person in good faith. It has to be kept,
in mind that nothing can be said to be done in good faith which is not done with,
"due care and caution. If these ingredients are indicated by the complaint, the",
Magistrate is obliged to take the cognizance of the complaint so presented,
before him unless there are the other grounds for acting otherwise which has to,
be justified by reasons recorded in writing.913.,
Where the tenant and his family members were prevented by some other tenants in,
"league with the landlord from using the main gate by force and abuses, the Court",
observed that it was utterly wrong to have dismissed the complaint as a matter of civil,
nature.914.,
"Obstruction contemplated by this section, though physical, may be caused not only by",
"physical force but also by menaces and threats, the criterion of the offence thereunder",
or under section 341 being more the effect than the method.915. The fact of physical,
obstruction even by mere words would fall within the ambit of this section.916.,
[s 339.2] CASES.—Wrongful restraint.—,
"Where the accused, a boy of 15 years, caught hold of a man from the back to enable",
"the main accused, his brother, to attack, it was held that common intention of murder",
"could not be inferred. Accordingly, his conviction from under sections 302/34 was",
converted to one under section 340.917. The driver of a bus purposely made his bus,
"stand across the road in such a manner as to prevent another bus, which was coming",
"from behind, to proceed further. It was held that the driver of the first bus was guilty of",
wrongful restraint.918. Where the tenants of a housing society converted an open space,
"within the compound into a garden and cordoned it, this offence was held to have been",
"committed and though the accused were companies, they could be prosecuted under",
this section and section 447.919. Their conduct caused obstruction to the free,
movement of other members.,
[s 339.3] No wrongful restraint.—,
Where a person obstructs a private pathway claimed by way of a right of easement,
"over his land and which right was not admitted, he does not commit the offence of",
wrongful restraint.920. The obstruction under this section has to be to a person and not,
to an empty car.921. Where at the behest of a constable the accused stopped some,
carts in which rice was being carried by some persons in the bona fide belief that the,
"rice was being smuggled out, they could not be held liable under section 341, IPC, 1860",
"even if suspicion ultimately proved to be incorrect, for they would still get the protection",
"of section 79, IPC, 1860 that is, mistake of fact.922. Where a tenant was partially",
"obstructed from entering the premises by the closure of one of the door leaves, it was",
held that it did not amount to wrongful restraint as he was still free to enter the,
premises.923. The wife of the complainant was working as a teacher in a school. The,
"complainant, a judicial officer, was staying in the quarter allotted to her in the school",
"compound till he was posted to some other place. Thereafter, he used to visit his family",
and was permitted to park his car at a particular place but he was prevented from using,
the main gates of the school. He was not restrained from using the passage leading to,
the school premises where his wife was allotted residential quarter. It was held that,
criminal restraint to a 'person' is punishable but not any obstruction for plying/parking,
of a vehicle at a particular place.924. Where the Sarvodaya workers prevented visitors,
"from entering a liquor shop, it cannot be held an offence under section 339 IPC,",
1860.925.,
"The word ""voluntarily"" connotes direct physical restraint. There should be restriction on",
"the normal movement of a person. In this case, the accused person had decided on",
"behalf of a limited company to get a road repaired and the repair, if carried out, might",
"have caused some inconvenience to the complainant, it was held that there was no",
offence under sections 339 and 341.926.,
[s 339.4] Matter of civil nature.—,
The right of a co-sharer to enjoy the joint family property is a civil right. Where such,
"right is denied by other co-shares for one reason or another, the Court said that it",
"should be enforced by taking recourse to remedies available under the civil laws,",
criminal proceedings cannot be resorted for such purposes.927.,
"907. Note M, p 154.",
"908. Saminada Pillai, (1882) 1 Weir 339.",
"909. Keki Hormusji Gharda v Mehervan Rustom Irani, (2009) 6 SCC 475 [LNIND 2009 SC 1276] :",
AIR 2009 SC 2594 [LNIND 2009 SC 1276] .,
910. P 59.,
"911. Vijay Kumari v SM Rao, AIR 1996 SC 1058 : 1996 Cr LJ 1371 . In the instant case after",
"termination of the licence, the teacher had lost her right to enter the room of the hostel.",
"912. Bharat Kishormal Shah v State of Maharashtra, 2010 Cr LJ 4088 (Bom).",
"913. Noor Mohamed Alias Mohd v Nadirshah Ismailshah Patel, 2004 Cr LJ 985 (Bom).",
"914. Paritosh Chowdhury v Sipra Banerjee, 1988 Cr LJ 1299 (Cal).",
"915. Nripendra Nath Basu v Kisen Bahadur, (1952) 1 Cal 251 .",
"916. Re Shanmugham, 1971 Cr LJ 182 .",
"917. Har Vansh Singh v State of UP, 1993 Cr LJ 3059 (All).",
"918. Abraham v Abraham, (1950) Mad 858.",
"919. Sanghi Motors (Bom) Ltd v MT Shinde, 1989 Cr LJ 684 Bom. Section 447 punishes criminal",
trespass.,
"920. Basam Bhowmick, AIR 1963 Cal 3 [LNIND 1962 CAL 48] .",
"921. Shankarlal, 1975 Cr LJ 1077 (Gau).",
"922. Keso Sahu, 1977 Cr LJ 1725 (Ori).",
"923. Sankar Chandra Ghose, 1981 Cr LJ 1002 (Cal).",
"924. Rita Wilson v State of HP, 1992 Cr LJ 2400 (HP).",
"925. Narayanan v State, 1986 Ker LT 1265 .",
"926. Keki Hormusji Gharda v Mehervan Rustom Irani, (2009) 6 SCC 475 [LNIND 2009 SC 1276] :",
2009 Cr LJ 3733 .,
"927. Rajinder Singh Katoch v Chandigarh Admn, (2007) 10 SCC 69 [LNIND 2007 SC 1233] : AIR",
2008 SC 178 [LNIND 2007 SC 1233] .,
THE INDIAN PENAL CODE,
CHAPTER XVI OF OFFENCES AFFECTING THE HUMAN BODY OF,
OFFENCES AFFECTING LIFE,
Of Wrongful Restraint and Wrongful Confinement,
[s 340] Wrongful confinement.,
Whoever wrongfully restrains any person in such a manner as to prevent that person,
"from proceedings1 beyond certain circumscribing limits,2 is said ""wrongfully to",
"confine"" that person.",
ILLUSTRATIONS,
"(a) A causes Z to go within a walled space, and locks Z in. A is thus prevented from",
proceeding in any direction beyond the circumscribing line of wall. A wrongfully,
confines Z.,
"(b) A places men with firearms at the outlets of a building, and tells Z that they will",
fire at Z if Z attempts to leave the building. A wrongfully confines Z.,
COMMENT.—,
"Wrongful confinement, which is a form of wrongful restraint, is keeping a man within",
"limits out of which he wishes to go, and has a right to go.928.",
[s 340.1] Ingredients.—,
The section requires—,
(1) Wrongful restraint of a person.,
(2) Such restraint must prevent that person from proceeding beyond certain,
circumscribing limits. The offence of wrongful confinement as defined under,
section 340 of the Code occurs when individual is wrongfully restrained in such,
a manner as to prevent him/her from proceeding beyond certain circumscribing,
limits.929.,
[s 340.2] Wrongful confinement and wrongful restraint.—,
"From the definition, it is evident that 'wrongful confinement' is a species of 'wrongful",
"restraint' as defined in section 339 IPC, 1860. While, in 'wrongful restraint', there is only",
"a partial suspension of one's liberty, 'wrongful confinement' reflects total suspension of",
liberty beyond certain prescribed limits. The period of suspension is immaterial for,
constituting an offence of 'wrongful confinement' or 'wrongful restraint'. When a person,
"is restrained and is prevented from going, where he has a right to go, the restraint",
"becomes wrongful if such restraint is not in exercise of any right, power or authority",
under any law.930.,
1. 'Prevent that person from proceedings'.—The restraining of a person in a particular,
place or compelling him to go in a particular direction by force of an exterior will,
overpowering or suppressing in any way his own voluntary action is an imprisonment,
on the part of him who exercises that exterior will.931. There can be no wrongful,
"confinement when a desire to proceed has never existed, nor can a confinement be",
wrongful if it was consented to by the person affected.932. Mere insistence by words of,
mouth or mere sitting around a person would not satisfy the requirements of the,
offence of wrongful confinement which requires that there must be voluntary,
obstruction to that person so as to prevent that person from proceeding in any,
direction in which that person has a right to proceed.933. To support a charge of,
wrongful confinement proof of actual physical restriction is not essential. It is sufficient,
if such evidence shows that such an impression was produced on the mind of the,
victim as to create a reasonable apprehension in his or her mind that he or she was not,
free to depart and that he or she would be forthwith seized or restrained if he or she,
attempted to do so.934.,
2. 'Certain circumscribing limits'.—,
"A prison may have its boundary, large or narrow, visible and tangible, or, though real still in",
the conception only; it may itself be moveable or fixed: but a boundary it must have; and that,
boundary the party imprisoned must be prevented from passing; he must be prevented from,
"leaving that place, within the ambit of which the party imprisoning would confine him,",
except by prison-breach. Some confusion seems to me to arise from confounding,
imprisonment of the body with mere loss of freedom: it is one part of the definition of,
freedom to be able to go withersoever one pleases; but imprisonment is something more,
than the mere loss of this power; it includes the notion of restraint within some limits,
defined by a will or power exterior to our own.935.,
[s 340.3] Forced to walk.—,
"Where a person was forced to walk under duress to a particular direction, it amounted",
to an offence of wrongful confinement. An act by which a person is prevented from,
proceeding towards a particular direction is an offence under the section.936.,
[s 340.4] Moral force.—,
"Detention through the exercise of moral force, without the accompaniment of physical",
"force or actual conflict, is sufficient to constitute this offence.937.",
[s 340.5] Period of confinement.—,
"The time during which a person is kept in wrongful confinement is immaterial, except",
with reference to the extent of punishment.938.,
[s 340.6] Remedy of compensation under writ of habeas corpus.—,
"Freedom from detention and compensation for wrongful detention, it has been held,",
"can be ordered under writ of habeas corpus; however, the Court added that the remedy",
"under section 340 IPC, 1860 cannot be treated as an alternative or substitute for",
remedy of habeas corpus. It is only an additional remedy.939.,
[s 340.7] Compensation for unauthorised detention.—,
"The petitioner was detained by an order passed by the Judicial Magistrate, First Class",
whereas the authority for order of detention vested with the State or Central,
"Government. It was held that the said detention, being without authority of law,",
amounted to wrongful confinement. The detention was quashed and the detenu was,
"granted a compensation of Rs. 3,000.940.",
[s 340.8] CASES.—Wrongful confinement.—,
Where two police-officers arrested without warrant a person who was drunk and,
"creating disturbance in a public street, and confined him in the police-station though",
one of them knew his name and address and it was not found to what extent he was a,
"danger to others or their property, it was held that the arrest having been made by the",
"police-officers without warrant, for a non-cognizable offence, their action amounted to",
wrongful confinement unless it was justified on the ground of right of private defence,
"or under section 81 as was, in fact, held by the Court.941. Though an illegal search in",
"violation of the provisions of section 165 Cr PC, 1973 can be resisted, there is no",
justification for bodily lifting and bringing back the Investigating Officer after he has left,
the house and to confine and threaten him till he gives a written statement that he has,
searched the house of the appellant. It was held that by such acts the accused had,
committed offences of wrongful confinement and assaulting a public servant within,
"the meaning of sections 342 and 353, IPC, 1860.942. A police officer arrested and",
detained a person in the thana lock-up despite production of a bail order from the,
Court. It was held that the officer was clearly guilty of an offence under section 342,
"IPC, 1860.943.",
[s 340.9] Custody of child.—,
It is an incorrect proposition of law that a father would never be held liable for offence,
of wrongful 'confinement' if he detains the child by having snatched her away from the,
"mother, who, under some authority of law, had, at the time of snatching, the custody of",
the child and is entitled to have custody of the child. When a minor is kept against the,
"will of the person, who has the custody of such a child and/or who is entitled to take",
"the custody of the child, such detention would amount to 'wrongful confinement'. In",
"such a case, it is the will of the person, who is entitled to have custody of such a child,",
"which will be the will of the child, for, the child's willingness or 'consent' would be",
"immaterial unless the welfare of the child, in a given case, demands removal of the",
"child from the custody of the person, who is, otherwise, entitled to keep the custody of",
"the child. Guardian and custodian are not synonymous with each other. Thus, even",
"when a parent, who, with impunity, snatches away a child from the lawful custody of",
"the other parent, who held such custody and who is entitled to have the custody of the",
"child under the law—personal, statutory or otherwise—such snatching away of the child",
"and his detention against the will of the parent in whose custody the child was, would",
amount to an offence of 'wrongful confinement'.944.,
[s 340.10] No wrongful confinement.—,
Where the wife who has attained the age of 21 stated before the Court that she was not,
"detained by her parents against her will, there was no wrongful confinement and as",
such the habeas corpus petition by the husband could not succeed.945.,
"928. Note M, p 154.",
"929. Subhash Krishnan v State of Goa, (2012) 8 SCC 365 [LNIND 2012 SC 480] : AIR 2012 SC",
3003 [LNIND 2012 SC 480] .,
"930. Piyush Chamaria v Hemanta Jitani, 2012 Cr LJ 2306 (Gau).",
"931. Parankusam v Stuart, (1865) 2 MHC 396 ; SA Hamid v Sudhirmohan Ghosh, (1929) 57 Cal",
102 .,
"932. Muthammad Din, (1893) PR No. 36 of 1894.",
"933. Lilabati Kanjilal, 1966 Cr LJ 838 .",
"934. Bhagwat v State, 1971 Cr LJ 1222 . See further, Rabinarayan Das v State of Orissa, 1992 Cr",
"LJ 269 (Ori), where the court added that an essential ingredient of the offence is that the",
accused should have wrongfully restrained the complainant and such restraint was to prevent,
the complainant from proceeding beyond certain circumscribing limits.,
"935. Per Coleridge, J, in Birid v Jones, (1845), QB 742, 744.",
"936. Nania Nanuram v State of MP, 1995 Cr LJ 1870 (MP). The court also said that a person",
charged with murder can be convicted under section 341 or 342.,
"937. Venkatachala Mudali, (1881) 1 Weir 341.",
"938. Suprosunno Ghosaul, (1866) 6 WR (Cr) 88. Taking away a girl for rape was held to be a",
"confinement of this kind and punished as such, sentence of three years RI was held to be not",
"excessive, Periyasami Re, 1995 Cr LJ 1203 (Mad).",
"939. Poovan v SI of Police, 1993 Cr LJ 2183 (Ker).",
"940. Paothing Tangkhul v State of Nagaland, 1993 Cr LJ 2514 .",
"941. Gopal Naidu, (1922) 46 Mad 605 (FB).",
"942. Shyamlal, 1972 Cr LJ 638 : AIR 1972 SC 886 [LNIND 1972 SC 100] . Shamshuddeen v State",
"of Kerala, 1989 Cr LJ 2068 , the accused confining the two police officers who rescued a person",
"from his confinement, no leniency shown in sentencing. D Ramalinga Reddy v D Babu, 1999 Cr LJ",
"2918 (AP), wrongful restraint. Samir Saha v State of Assam, 1998 Cr LJ 1360 (Gau) proof of",
"actual physical restriction is not necessary; Sanji Ladha v State of Gujarat, 1998 Cr LJ 2746 (Guj).",
"943. Dharmu, 1978 Cr LJ 864 (Ori).",
"944. Piyush Chamaria v Hemanta Jitani, 2012 Cr LJ 2306 (Gau).",
"945. Madhu Bala, 1982 Cr LJ 555 (SC) : AIR 1982 SC 938 .",
THE INDIAN PENAL CODE,
CHAPTER XVI OF OFFENCES AFFECTING THE HUMAN BODY OF,
OFFENCES AFFECTING LIFE,
Of Wrongful Restraint and Wrongful Confinement,
[s 341] Punishment for wrongful restraint.,
Whoever wrongfully restrains any person shall be punished with simple imprisonment,
"for a term which may extend to one month, or with fine which may extend to five",
"hundred rupees, or with both.",
COMMENTS.—,
The only allegation relating to section 341 was that accused stood in front of victim in,
such a manner that she had to move backward. From such act alone it cannot be said,
"that he ""wrongfully restrained"" her within the meaning of section 339, IPC, 1860 to",
"make him liable under section 341, IPC, 1860.946. Accused, appellant caught the victim",
"from behind, pushed her on ground, removed her panty and made an attempt to rape.",
Evidence of victim was found consistent. She specifically stated that upon getting,
opportunity she kicked in testicles of accused and escaped from place of occurrence.,
Conviction under section 341 and section 511 of 376 was upheld.947. Accused with 2–,
3 other persons restricted the deceased on way and an axe blow was given by first,
accused on the head of the deceased and that was resisted by patting hands ahead.,
Consequent to the blow aforesaid he received an injury near his ear. A lathi blow then,
"was given by second accused on the head of the deceased, consequent to which he fell",
down and then he was severely beaten by the accused. Deceased succumbed to the,
injuries sustained. Conviction under sections 302 and 341 was upheld.948.,
"946. Rupan Deol Bajaj v Kanwar Pal Singh Gill, AIR 1996 SC 309 [LNIND 1995 SC 981] : (1995) 6",
SCC 194 [LNIND 1995 SC 981] .,
"947. Rajesh Vishwakarma v State of Jharkhand, 2011 Cr LJ 2753 (Jha); Amar Soni v State of",
"Jharkhand, 2010 Cr LJ 4003 (Jha)—Acid attack.",
"948. Natha v State of Rajasthan, 2013 Cr LJ 1905 (Raj).",
THE INDIAN PENAL CODE,
CHAPTER XVI OF OFFENCES AFFECTING THE HUMAN BODY OF,
OFFENCES AFFECTING LIFE,
Of Wrongful Restraint and Wrongful Confinement,
[s 342] Punishment for wrongful confinement.,
Whoever wrongfully confines any person shall be punished with imprisonment of,
"either description for a term which may extend to one year, or with fine which may",
"extend to one thousand rupees, or with both.",
COMMENT.—,
"Section 342, IPC, 1860 is not confined to offences against public servants but is a",
"general section and makes a person who wrongfully restrains another, guilty of the",
offence under that section. A wrongful confinement is a wrongful restraint in such a,
manner as to prevent that person from proceeding beyond a certain circumscribed,
limits. This offence has nothing to do with the investigation or search.949. The essential,
"ingredients of the offence ""wrongful confinement"" are that the accused should have",
wrongfully confined the complainant and such restraint was to prevent the complainant,
from proceeding beyond certain circumscribed limits beyond which he/she has a right,
to proceed. The factual scenario clearly establishes commission by the appellant as,
"well of the offence punishable under section 342 IPC, 1860.950. Confinement need not",
necessarily be a confinement where the person is physically held within a certain,
"circumscribed limit. To support the charge of wrongful confinement, proof of actual",
physical obstruction is not essential. It is the condition of the mind of the person,
"confined, having regard to the circumstances that leads him to reasonably believe that",
he was not free to move and that he would be forthwith restrained if he attempted to do,
so.951.,
"Where a man, illegally taken into police custody was beaten by the police and he",
"committed suicide, the accused police officials were punished under section 342. Case",
under sections 352 and 302 was not made out.952. Wife suffered a blow of hammer on,
left side below ear and immediately died on spot. Accused husband convicted under,
"section 342 and 302 IPC, 1860.953. Victim after being arrested was kept in police",
station for three days and was not produced before a Magistrate within 24 hours. SHO,
cannot be absolved from the charges under section 342.954. In Vadamalai v Syed,
"Thastha Keer,955. the complainant was allegedly detained and beaten by",
appellant/police officials in Police Station but the evidence does not show that he was,
kept in police station for four days. Conviction of the appellant by High Court under,
"sections 323, 342 held not sustainable and liable to be set aside.",
The officers who visited the house of the accused for making inquiry under Money,
"Lenders Act, were not allowed to go out of the house for some time. It was found that",
there was no apprehension in their mind about use of force in case they tried to move,
out. It was held that no offence under section 342 was made out.956.,
"949. Shyam Lal Sharma v State of MP, AIR 1972 SC 886 [LNIND 1972 SC 100] : (1972) 1 SCC 764",
[LNIND 1972 SC 100] .,
"950. Raju Pandurang Mahale v State of Maharashtra, AIR 2004 SC 1677 [LNIND 2004 SC 194] :",
(2004) 4 SCC 371 [LNIND 2004 SC 194] .,
"951. Mrityunjay Kumar v State, 2010 Cr LJ 44 (Sik).",
"952. State v Balkrishna, 1992 Cr LJ 1872 (Mad).",
"953. Daulat Singh v State of Rajasthan, 2013 Cr LJ 1797 (Raj); Subhash Krishnan v State, (2012) 8",
SCC 365 [LNIND 2012 SC 480] : AIR 2012 SC 3003 [LNIND 2012 SC 480] — Every ingredients of,
"section 342 and section 364 is clearly made out; Baby v State, (2012) 11 SCC 362 [LNINDU 2012",
"SC 11] —The sentences imposed under section 376, section 506 (ii) and 342 IPC, 1860 were",
"maintained; Elavarasan v State, AIR 2011 SC 2816 [LNIND 2011 SC 604] : (2011) 7 SCC 110",
[LNIND 2011 SC 604] — Conviction under section 304–Part II and 342.,
"954. Central Bureau of Investigation v Kishore Singh, (2011) 6 SCC 369 [LNIND 2010 SC 1033] :",
(2011) 2 SCC (Cr) 970 : AIR 2011 SC (Supp) 584.,
"955. Vadamalai v Syed Thastha Keer, (2009) 3 SCC 454 [LNIND 2009 SC 304] : AIR 2009 SC",
1956 [LNIND 2009 SC 304] .,
"956. State of Gujarat v Keshavlal Maganbhai Jogani, 1993 Cr LJ 248 (Guj). Veena Rangnekar v",
"State of Maharashtra, 2000 Cr LJ 2443 , death by electrocution in the house let to the tenant.",
Police team came in with permission to check new wiring. They were obstructed in their work of,
taking photographs and not allowed to leave the house for sometime. Guilty under the section.,
"Suresh N Bhusare v State of Maharashtra, 1998 Cr LJ 4559 (SC) conviction set aside because the",
victim girl had gone voluntarily and not lifted and confined. Also see Suresh Balkrishna Nakhava,
"v State of Maharashtra, 1998 Cr LJ 284 (Bom); Shivraj Chandrappa Yadav v State of Maharashtra,",
"1998 Cr LJ 3168 (Bom). Raju Pandurang Mahale v State of Maharashtra, (2004) 4 SCC 371",
"[LNIND 2004 SC 194] : AIR 2004 SC 1677 [LNIND 2004 SC 194] : 2004 Cr LJ 1441 , brought into",
"a house under a false pretence, locked from outside, the victim could go out only next day,",
offence under the section made out.,
THE INDIAN PENAL CODE,
CHAPTER XVI OF OFFENCES AFFECTING THE HUMAN BODY OF,
OFFENCES AFFECTING LIFE,
Of Wrongful Restraint and Wrongful Confinement,
[s 343] Wrongful confinement for three or more days.,
"Whoever wrongfully confines any person for three days, or more, shall be punished",
"with imprisonment of either description for a term which may extend to two years, or",
"with fine, or with both.",
COMMENT.—,
Whoever wrongfully confines any person for three days or more shall be punished,
under this section. Whoever wrongfully restrains any person in such a manner as to,
prevent that person from proceeding beyond certain circumscribed limits is said to,
"'wrongfully confine' that person, as defined under section 340, IPC, 1860. Use of",
physical force is not necessary for the offence of wrongful confinement. A mere,
"detention of a person against law would attract section 343, IPC, 1860.957.",
[s 343.1] Sanction.—,
Since illegal detention and the assault made against the first respondent by the,
"petitioner did not form part of the official duty of the petitioner and, therefore, there was",
"no necessity to obtain prior sanction under section 197, Cr PC, 1973.958.",
"957. A Azeez v Pasam Hari Babu, 2003 Cr LJ 2462 (AP).",
"958. A Azeez v Pasam Hari Babu, 2003 Cr LJ 2462 (AP).",
THE INDIAN PENAL CODE,
CHAPTER XVI OF OFFENCES AFFECTING THE HUMAN BODY OF,
OFFENCES AFFECTING LIFE,
Of Wrongful Restraint and Wrongful Confinement,
[s 344] Wrongful confinement for ten or more days.,
"Whoever wrongfully confines any person for ten days, or more, shall be punished with",
"imprisonment of either description for a term which may extend to three years, and",
shall also be liable to fine.,
THE INDIAN PENAL CODE,
CHAPTER XVI OF OFFENCES AFFECTING THE HUMAN BODY OF,
OFFENCES AFFECTING LIFE,
Of Wrongful Restraint and Wrongful Confinement,
[s 345] Wrongful confinement of person for whose liberation writ has been,
issued.,
"Whoever keeps any person in wrongful confinement, knowing that a writ for the",
"liberation of that person has been duly issued, shall be punished with imprisonment of",
either description for a term which may extend to two years in addition to any term of,
imprisonment to which he may be liable under any other section of this Chapter.,
THE INDIAN PENAL CODE,
CHAPTER XVI OF OFFENCES AFFECTING THE HUMAN BODY OF,
OFFENCES AFFECTING LIFE,
Of Wrongful Restraint and Wrongful Confinement,
[s 346] Wrongful confinement in secret.,
Whoever wrongfully confines any person in such manner as to indicate an intention,
that the confinement of such person may not be known to any person interested in the,
"person so confined, or to any public servant, or that the place of such confinement",
may not be known to or discovered by any such person or public servant as,
"hereinbefore mentioned, shall be punished with imprisonment of either description",
"for a term which may extend to two years, in addition to any other punishment to",
which he may be liable for such wrongful confinement.,
THE INDIAN PENAL CODE,
CHAPTER XVI OF OFFENCES AFFECTING THE HUMAN BODY OF,
OFFENCES AFFECTING LIFE,
Of Wrongful Restraint and Wrongful Confinement,
[s 347] Wrongful confinement to extort property or constrain to illegal act.,
Whoever wrongfully confines any person for the purpose of extorting from the person,
"confined, or from any person interested in the person confined, any property or",
valuable security or of constraining the person confined or any person interested in,
such person to do anything illegal or to give any information which may facilitate the,
"commission of an offence, shall be punished with imprisonment of either description",
"for a term which may extend to three years, and shall also be liable to fine.",
COMMENT.—,
"This and the next section may be compared with sections 329 and 330, as the",
aggravating circumstances mentioned in the former are the same as those in the latter.,
THE INDIAN PENAL CODE,
CHAPTER XVI OF OFFENCES AFFECTING THE HUMAN BODY OF,
OFFENCES AFFECTING LIFE,
Of Wrongful Restraint and Wrongful Confinement,
"[s 348] Wrongful confinement to extort confession, or compel restoration of",
property.,
Whoever wrongfully confines any person for the purpose of extorting from the person,
confined or any person interested in the person confined any confession or any,
"information which may lead to the detection of an offence or misconduct, or for the",
purpose of constraining the person confined or any person interested in the person,
confined to restore or to cause the restoration of any property or valuable security or,
"to satisfy any claim or demand, or to give information which may lead to the",
"restoration of any property or valuable security, shall be punished with imprisonment",
"of either description for a term which may extend to three years, and shall also be",
liable to fine.,
COMMENT.—,
This section may be compared with section 330. In the former case confession is,
"extorted by wrongful confinement; in the latter, by causing hurt. To prove an offence",
under this section it is not necessary to show that a formal arrest was made. It is,
enough if it is shown that the person was prevented from proceeding beyond certain,
circumscribed limits.959. Evidence showed that deceased died of multiple injuries and,
such injuries were caused when deceased was in illegal custody of accused. Accused,
"was held liable to be convicted under sections 348 and 304 Part II of IPC, 1860.960.",
"959. State of HP v Ranjit Singh, 1979 Cr LJ (NOC) 210 (HP).",
"960. State of AP v G Veereshalinga, 2011 Cr LJ 1991 (AP); Anup Singh v State of HP, AIR 1995 SC",
"1941 : 1995 Cr LJ 3223 ; Ajay Kumar Singh v State (NCT of Delhi), 2007 Cr LJ 3545 (Del). Order",
framing charge against the accused was held proper.,
THE INDIAN PENAL CODE,
CHAPTER XVI OF OFFENCES AFFECTING THE HUMAN BODY OF,
OFFENCES AFFECTING LIFE,
Of Criminal Force and Assault,
[s 349] Force.,
"A person is said to use force to another if he causes motion, change of motion, or",
"cessation of motion to that other, or if he causes to any substance such motion, or",
"change of motion, or cessation of motion as brings that substance into contact with",
"any part of that other's body, or with anything which that other is wearing or carrying,",
or with anything so situated that such contact affects that other's sense of feeling:,
"Provided that the person causing the motion, or change of motion, or cessation of",
"motion, causes that motion, change of motion, or cessation of motion in one of the",
three ways hereinafter described.,
First.—By his own bodily power.,
Secondly.—By disposing any substance in such a manner that the motion or change or,
"cessation of motion takes place without any further act on his part, or on the part of",
any other person.,
"Thirdly.—By inducing any animal to move, to change its motion, or to cease to move.",
COMMENT.—,
'Force' as defined in clause (1) contemplates the presence of the person to whom it is,
"used, that is to say, it contemplates the presence of the person using the force and of",
the person to whom the force is used.961.,
"961. Bihari Lal, (1934) 15 Lah 786, 789.",
THE INDIAN PENAL CODE,
CHAPTER XVI OF OFFENCES AFFECTING THE HUMAN BODY OF,
OFFENCES AFFECTING LIFE,
Of Criminal Force and Assault,
[s 350] Criminal force.,
"Whoever intentionally uses force to any person, without that person's consent, in",
"order to the committing of any offence, or intending by the use of such force to cause,",
"or knowing it to be likely that by the use of such force he will cause injury, fear or",
"annoyance to the person to whom the force is used, is said to use criminal force to",
that other.,
ILLUSTRATIONS,
"(a) Z is sitting in a moored boat on a river. A unfastens the moorings, and thus",
intentionally causes the boat to drift down the stream. Here A intentionally,
"causes motion to Z, and he does this by disposing substances in such a manner",
that the motion is produced without any other act on on any person's part. A has,
therefore intentionally used force to Z; and if he has done so without Z's,
"consent, in order to the committing of any offence, or intending or knowing it to",
"be likely that this use of force will cause injury, fear or annoyance to Z, A has",
used criminal force to Z.,
"(b) Z is riding in a chariot. A lashes Z's horses, and thereby causes them to quicken",
their pace. Here Z has caused change of motion to Z by inducing the animals to,
change their motion. A has therefore used force to Z; and if A has done this,
"without Z's consent, intending or knowing it to be likely that he may thereby",
"injure, frighten or annoy Z, A has used criminal force to Z.",
"(c) Z is riding in a palanquin. A, intending to rob Z, seizes the pole and stops the",
"palanquin. Here A has caused cessation of motion to Z, and he has done this by",
his own bodily power. A has therefore used force to Z; and as A has acted thus,
"intentionally, without Z's consent, in order to the commission of an offence. A",
has used criminal force to Z.,
(d) A intentionally pushes against Z in the street. Here A has by his own bodily,
power moved his own person so as to bring it into contact with Z. He has,
therefore intentionally used force to Z; and if he has done so without Z's,
"consent, intending or knowing it to be likely that he may thereby injure, frighten",
"or annoy Z, he has used criminal force to Z.",
"(e) A throws a stone, intending or knowing it to be likely that the stone will be thus",
"brought into contact with Z, or with Z's clothes, or with something carried by Z,",
"or that it will strike water, and dash up the water against Z's clothes or",
"something carried by Z. Here, if the throwing of the stone produce the effect of",
"causing any substance to come into contact with Z, or Z's clothes. A has used",
"force to Z; and if he did so without Z's consent, intending thereby to injure,",
"frighten or annoy Z, he has used criminal force to Z.",
"(f) A intentionally pulls up a woman's veil. Here, A intentionally uses force to her,",
"and if he does so without her consent, intending or knowing it to be likely that he",
"may thereby injure, frighten or annoy her, he has used criminal force to her.",
"(g) Z is bathing, A pours into the bath water which he knows to be boiling. Here A",
intentionally by his own bodily power causes such motion in the boiling water as,
"brings that water into contact with Z, or with other water so situated that such",
contact must affect Z's sense of feeling; A has therefore intentionally used force,
"to Z; and if he has done this without Z's consent, intending or knowing it to be",
"likely that he may thereby cause injury, fear, or annoyance to Z, A has used",
criminal force.,
"(h) A incites a dog to spring upon Z, without Z's consent. Here, if A intends to cause",
"injury, fear or annoyance to Z, he uses criminal force to Z.",
COMMENT.—,
The preceding section defines 'force'. This section says that 'force' becomes criminal,
"(1) when it is used without consent and in order to the committing of an offence, or (2)",
"when it is intentionally used to cause injury, fear or annoyance to another to whom the",
"force is used. To attract the definition of 'criminal force' under section 350 IPC, 1860,",
"there must be intentional use of force on any person, without that person's consent.",
"Such force must have been used for committing an offence, or intending to cause, or",
"knowing it to be likely that by the use of such force he will cause injury, fear or",
"annoyance to the person on whom the force is used. In other words, the criminal force",
contemplated under this section is intended to mean criminal force as applied to a,
person and not as applied to an inanimate object or substance.962. A person is said to,
use force when he causes motion or change of motion or cessation of motion to,
"another person or the above in substance, which brings it into contact with any part of",
"the other person's body or with anything that the other is wearing or carrying, or with",
anything so situated that such contact affects other's sense of feeling. This should be,
done by his own bodily power or by use of some substance or by inducing any animal,
to change this motion. The use of force will become criminal when it is done against,
the consent of any person with the intention of committing an offence or to cause,
"injury, fear or annoyance to any person. In this case admittedly no assault was resorted",
to.963.,
"The term 'criminal force' includes what in English law is called 'battery'. It will, however,",
be remembered that 'criminal force' may be so slight as not to amount to an offence,
"(section 95), and it will be observed that 'criminal force' does not include anything that",
the doer does by means of another person. The definition of 'criminal force' is so wide,
as to include force of almost every description of which a person is the ultimate object.,
[s 350.1] Ingredients.—,
The section requires—,
(1) The intentional use of force to any person.,
(2) Such force must have been used without the person's consent.,
(3) The force must have been used—,
(a) in order to the committing of an offence; or,
"(b) with the intention to cause, or knowing it to be likely that he will cause,",
"injury, fear or annoyance to the person to whom it is used.",
[s 350.2] Illustrations.—,
The various illustrations exemplify the different ingredients of the definition of 'force',
"given in section 349. Illustration (a) exemplifies 'motion'; ill. (b), 'change of motion'; ill.",
"(c), 'cessation of motion'; ills. (d), (e), (g) and (h), 'bring that substance into contact with",
any part of that other's body'; ills. (j) and (g) 'other's sense of feeling'. Clause 1 of,
"section 349 is illustrated by ills. (c), (d), (e), (f) and (g); clause 2 by ill, (a); and clause 3,",
by ills. (b) and (h).,
The petitioners had picked up or snatched the ballot papers from the custody and,
possession of the public servants. They had even torn the same in this process. It was,
held that they used criminal force.964.,
"962. Devaki Amma v State, 1981 Ker LT 475 .",
"963. S P Mallik v State of Orissa, 1982 Cr LJ 19 (Pat)",
"964. Bhupinder Singh v State of Punjab, 1997 Cr LJ 3416 (PH).",
THE INDIAN PENAL CODE,
CHAPTER XVI OF OFFENCES AFFECTING THE HUMAN BODY OF,
OFFENCES AFFECTING LIFE,
Of Criminal Force and Assault,
[s 351] Assault.,
"Whoever makes any gesture, or any preparation1 intending or knowing it2 to be likely",
that such gesture or preparation will cause any person present to apprehend that he,
"who makes that gesture or preparation is about to use criminal force to that person, is",
said to commit an assault.,
Explanation.—Mere words do not amount to an assault. But the words which a person,
uses may give to his gestures or preparation such a meaning as may make those,
gestures or preparations amount to an assault.,
ILLUSTRATIONS,
"(a) A shakes his fist at Z, intending or knowing it to be likely that he may thereby",
cause Z to believe that,
"A is about to strike Z, A has committed an assault.",
"(b) A begins to unloose the muzzle of a ferocious dog, intending or knowing it to be",
likely that he may thereby cause Z to believe that he is about to cause the dog to,
attack Z. A has committed an assault upon Z.,
"(c) A takes up a stick, saying to Z, ""I will give you a beating"". Here, though the words",
"used by A could in no case amount to an assault, and though the mere gesture,",
"unaccompanied by any other circumstances, might not amount to an assault,",
the gesture explained by the words may amount to an assault.,
COMMENT.—,
"It is not every threat, when there is no actual personal violence that constitutes an",
"assault; there must, in all cases, be the means of carrying the threat into effect. If a",
"person is advancing in a threatening attitude, with an intention to strike another so that",
"his blow will almost immediately reach the other, if he is not stopped, then this is an",
"assault in point of law, though at the particular moment when he is stopped, he is not",
near enough for his blow to take effect.965. In order to constitute assault it is not,
necessary that there should be some actual hurt caused. A threat constitutes,
assault.966. Pointing a loaded pistol at another is undoubtedly an assault within the,
"meaning of this section and as such punishable under section 352 IPC, 1860 though",
"not under section 307 IPC, 1860.967. In this connection see also sub-para entitled,",
"""attempt to discharge loaded firearm"" under section 307 ante.",
[s 351.1] Ingredients.—,
The section requires two things—,
(1) Making of any gesture or preparation by a person in the presence of another.,
(2) Intention or knowledge of likelihood that such gesture or preparation will cause,
the person present to apprehend that the person making it is about to use,
criminal force to him.,
"1. 'Makes any gesture, or any preparation'.—Illustration (a) illustrates that gestures",
which cause a person to apprehend that the person making them is about to use,
"criminal force amount to an assault. As seen from the definition of ""assault"", a gesture",
"or even a preparation on the part of accused would be sufficient to constitute ""assault""",
and accused need not have even attacked the deceased.,
The apprehension of the use of criminal force must be from the person making the,
"gesture or preparation, and if that apprehension arises not from that person but from",
"somebody else, it does not amount to assault on the part of that person. Further,",
criminal force cannot be said to be used by one person to another by causing change in,
"the position of another human being. Where, therefore, the accused himself did nothing",
which could come under the definition of assault but simply made a gesture at which,
his followers advanced a little forward towards the complainant in a threatening,
"manner, it was held that he was not guilty of the offence of assault under section",
"353.968. Where the accused, armed with a sharp-edged weapon, went to the shop of a",
man and hurled a challenge to him from some distance asking him to come out and,
"threatening him that he would not go back without killing him, it was held that the",
"manner in which the accused hurled the challenge, he committed an assault within the",
meaning of section 351 and the retaliation by that man was in self-defence.969.,
"Though mere preparation to commit a crime is not punishable (see section 511), yet",
preparation with the intention specified in this section amounts to an assault: see ill.,
(b).,
2. 'Intending or knowing it to be likely'.—Intention or knowledge is the gist of the,
"offence. Inadvertent recklessness, i.e., a failure to give thought to the possibility of risk",
"involved in pursuing a course of action, is insufficient to amount to mens rea requisite",
for a conviction for assault.970.,
[s 351.2] Explanation.—,
"Mere words do not amount to an assault, but the words which the party threatening",
uses at the time either give his gestures such a meaning as may make them amount to,
"an assault, or, on the other hand, may prevent them from being held to amount to an",
"assault. In the latter case, the effect of the words must be such as clearly to show the",
party threatened that the party threatening has no present intention to use immediate,
criminal force.971. A preparation taken with words which would cause a person to,
"apprehend that criminal force would be used to him, if he persisted in a particular",
"course of conduct, does not amount to an assault, if there is no evidence to show that",
the accused was about to use criminal force to him then and there.972.,
[s 351.3] Blood transfusion without consent.—,
"A person, aged 57, and a Jehovah's witness was seriously injured. He carried a card",
stating that no blood was to be administered under any circumstances. The doctor,
administered blood transfusions which he considered necessary to preserve the,
victim's life. The doctor was held liable in battery for treating the adult patient in a,
manner to which he did not consent.973.,
"965. Stephens v Myers, (1830) 4 C&P 349.",
"966. Rupabati v Shyama, (1958) Cut 710.",
"967. Swadesh Mahato, 1979 Cr LJ 1275 (Pat); See also James, (1844) 1 C&K 530; Vijaidutta Jha,",
(1947) Nag 237.,
"968. Muneshwar Bux Singh, (1938) 14 Luck 409 .",
"969. Mathew v State of Kerala, 1993 Cr LJ 213 (Ker). R v Chan-Fook, (1994) 2 All ER 552 , the",
"complainant suffered no physical injury as a result of the assault, he felt abused, humiliated and",
frightened.,
"970. R v Nash, (1991) Cr LR 768 (CA), Offences Against the Person Act, 1861, section 47",
(English).,
"971. AC Cama v HF Morgan, (1864) 1 BHC 205.",
"972. Birbal Khalifa, (1902) 30 Cal 97 .",
"973. Macette v Shulman, (1991) 2 Mad LR 162 (CA).",
THE INDIAN PENAL CODE,
CHAPTER XVI OF OFFENCES AFFECTING THE HUMAN BODY OF,
OFFENCES AFFECTING LIFE,
Of Criminal Force and Assault,
[s 352] Punishment for assault or criminal force otherwise than on grave,
provocation.,
Whoever assaults or uses criminal force to any person otherwise than on grave and,
"sudden provocation given by that person, shall be punished with imprisonment of",
"either description for a term which may extend to three months, or with fine which",
"may extend to five hundred rupees, or with both.",
Explanation.—Grave and sudden provocation will not mitigate the punishment for an,
"offence under this section, if the provocation is sought or voluntarily provoked by the",
"offender as an excuse for the offence, or",
"if the provocation is given by anything done in obedience to the law, or by a public",
"servant, in the lawful exercise of the powers of such public servant, or",
if the provocation is given by anything done in the lawful exercise of the right of,
private defence.,
"Whether the provocation was grave and sudden enough to mitigate the offence, is a",
question of fact.,
COMMENT.—,
This section provides punishment for assault or use of criminal force when there are no,
aggravating circumstances.974. Section 352 constitutes a minor offence in relation to,
"section 354 IPC, 1860. The offence under section 354 IPC, 1860 includes the",
"ingredients of the former.975. See section 300, Exception 1, which is identical with the",
explanation to this section.,
[s 352.1] CASE.—,
"Where the accused persons formed an unlawful assembly with a common object, act",
of unlawful assembly cannot be attributable with the subsequent change in the,
"common object of some of the other members of the assembly, it was held that",
members who did not share common intention and stood outside were liable to be,
convicted under section 352 read with149 and not under section 326 r/w. 149.976.,
"974. Nagar Prasad v State of UP, 1998 Cr LJ 1580 (All); R v Onabanjo, (2001) 2 Cr App R (S) 7 [CA",
"(Crim Div)], The accused appealed against a total sentence of 15 months' imprisonment, having",
been convicted of common assault against his former girlfriend and of putting her in fear of,
"violence contrary to the Protection from Harassment Act, 1997 section 4 after she had ended",
their relationship. The accused contended that the offences had been committed whilst he was,
under the influence of alcohol and in response to his inability to cope with the breakdown of the,
relationship.,
"It was held that repeated threats by the accused to kill justified the sentence imposed,",
notwithstanding the presence of several mitigating factors including his attempts to seek help,
"for his alcohol addiction and depression. R v Tucknott, (2001) 1 Cr App R (S) 93 [CA (Crim Div)],",
the accused was convicted for threatening to kill his ex-girlfriend and her new partner. The,
"threats were issued in prison to prison officers, stating intentions on release. The sentence was",
imposed as it was deemed necessary in order to protect the public from a man who the court,
"held and shown himself to be capable of extreme violence against previous partners and who,",
"the medical experts and probation service agreed, was likely to re-offend.",
It was held that given his early guilty plea and the fact that he could not realistically have carried,
"out the threats as he had been in prison at the time, the sentence was reduced to five years to",
bring it in the sentencing in comparable cases.,
"975. RD Bajaj v KPS Gill, AIR 1996 SC 309 [LNIND 1995 SC 981] : (1995) 6 SCC 194 [LNIND 1995",
SC 981] .,
"976. Bhimrao v State of Maharashtra, AIR 2003 SC 1493 [LNIND 2003 SC 167] : (2003) 3 SCC 37",
"[LNIND 2003 SC 167] . See also Ashok Chintawar v State of Maharashtra, 2006 Cr LJ 2234 (Bom);",
"Hanuman v State of Haryana, AIR 1977 SC 1614 : (1977) 4 SCC 599 .",
THE INDIAN PENAL CODE,
CHAPTER XVI OF OFFENCES AFFECTING THE HUMAN BODY OF,
OFFENCES AFFECTING LIFE,
Of Criminal Force and Assault,
[s 353] Assault or criminal force to deter public servant from discharge of his,
duty.,
Whoever assaults or uses criminal force to any person being a public servant in the,
"execution of his duty as such public servant, or with intent to prevent or deter that",
"person from discharging his duty as such public servant, or in consequence of",
anything done or attempted to be done by such person in the lawful discharge of his,
"duty as such public servant, shall be punished with imprisonment of either description",
"for a term which may extend to two years or with fine, or with both.",
COMMENT.—,
The public servant must be acting in the discharge of a duty imposed by law on him in,
"the particular case, and the section will not protect him for an act done in good faith",
under colour of his office.977. If hurt is caused under the circumstances mentioned in,
the section then either section 332 or section 333 will apply.,
[s 353.1] CASES.—Defect in warrant.—,
It is made clear in the illustrations that the words alone will not amount to assault. So,
"also, the mere gesture of picking up a stick alone will not constitute assault unless",
accompanied by other circumstances. The gesture explained by the words alone,
"amounts to assault. Therefore, mere preparation of carrying a weapon and standing",
before the victim without making any gesture which will disclose the intention or,
"knowledge will not constitute assault. As seen from Illustration (c), mere carrying a",
stick without being accompanied by a statement which will disclose the intention or,
knowledge will not constitute assault. But there is nothing in evidence to reveal,
"commission of any of the overt acts to constitute offence under section 353 IPC, 1860.",
The prosecution has failed to prove any of the offences alleged against appellants.978.,
"Resistance to an illegal order of attachment is not an offence under section 353, IPC,",
1860.979. Where the accused allegedly assaulted the District Revenue Officer who,
distributing flood relief in village and made an attempt to snatch the cash and evidence,
"of witnesses was found cogent, convincing and credit worthy, conviction was",
upheld.980. Accused allegedly snatched the service revolver of complainant police,
"officer and fired at him. All the witnesses who were independent witnesses, turned",
hostile. Offence under sections 307 and 353 was held not proved.981.,
[s 353.2] Search without proper order or warrant.—,
"Where the accused resisted a public officer who attempted to search a house, in the",
"absence of a proper written order authorizing him to do so, he was held to have",
committed no offence under this section.982. But the Madras High Court has held that,
a search without a search warrant does not justify an obstruction or resistance to an,
"officer, if he was acting in good faith and without malice.983. Even though an illegal",
"search under section 165, Cr PC, 1973 can be resisted, yet there is no justification to",
assault an officer after he has finished the search and left the house. Such an act,
"amounts to an offence under section 353 IPC, 1860.984. In this connection see also",
"sub-head ""Cases"" under section 340 ante.",
[s 353.3] Public servant must be acting in execution of duty.—,
Where the accused created hindrance in the discharge of duties of police in order to,
"avoid arrest, it was held that conviction under section 353 was justified.985. Where a",
cart owner refused to give his cart for the use of a Forest Settlement Officer who,
"required it as per executive orders of Government, and assaulted the peon in preventing",
"him from seizing his cart, it was held that he could not be convicted of an offence",
"under this section, because the rules aforesaid had not the force of law, and a public",
"servant acting under them was not acting in the execution of his duty.986. Similarly,",
where a forest officer who was authorised to arrest a person only when the offence,
was committed within five miles of the border arrested the accused when there was no,
"evidence that the offence was committed within the five mile belt, it was held that the",
"arrest not being justified, the accused did not commit any offence under this section by",
inflicting some injuries on the officer during a scuffle.987. Legality of the execution of,
"duty is the sine qua non for the application of section 353 IPC, 1860.988. Where a",
Headmaster of a school was assaulted with a ruler by a fellow teacher out of previous,
"personal grudge and not due to any performance of public duty, it was held that the",
accused could not be convicted under section 353 though his conviction under section,
"325, IPC, 1860 was legal as the Headmaster suffered a dislocation of the right shoulder",
joint.989. In this connection see also comments under section 332 ante. Where the,
Assistant Superintendent of Commercial Taxes paid a surprise visit to the shop of the,
"accused and took up some books of account maintained by the shop for inspection, as",
"he was empowered to do under the State's Sales Tax Law, and the accused snatched",
"away the books from him, it was held by the Supreme Court that the act of the accused",
amounted to use of criminal force and he could be convicted under this section. It was,
observed that to feel annoyed at this action of the accused would be the natural,
reaction of the Assistant Superintendent.990. Where the driver of the Transport,
Department prevented a Deputy Sarpanch from entering the bus through driver's cabin,
"and was kicked by the latter and thus suffered a grievous injury, it was held while",
driving or standing by the bus the driver was on public duty and by stopping a trespass,
into driver's cabin he was undoubtedly acting in the discharge of his duty as public,
"servant. The Deputy Sarpanch was, therefore, clearly liable under section 353, IPC,",
1860.991.,
Petitioner used vulgar and fitting language against complainant when he went to,
petitioner's office to ask reason for not permitting him to mark his presence in,
Attendance Register. It was held that act of petitioner cannot be defined to be an act in,
discharge of official duty. There was no need of previous sanction to prosecute him.992.,
[s 353.4] Posting adverse comments of social media site.—,
The appellant posted adverse comments against the police officer on Facebook. The,
threat must be with intention to cause alarm to the complainant to cause that person to,
do or omit to do any work. Mere expression of any words without any intention to,
cause alarm would not be sufficient to bring in the application of this section. But,
material has to be placed on record to show that the intention is to cause alarm to the,
complainant. Offence not made out.993.,
[s 353.5] To deter public servant from discharging duty.—,
Where the accused was asked by a sub-inspector to stop his car and he while,
pretending to stop sped away and in this process hit the mudguard of the motor-cycle,
"on which the Sub-Inspector was sitting, it was held that the facts of the case did not",
make out an offence of assault on a public servant or using criminal force so as to,
deter him from discharging his duties as public servant.994. The accused suspected,
that the complainant public servant was instrumental in his transfer. The complainant,
was proceeding to his office to resume his duty. On the way he was assaulted by the,
accused. It was held that no offence was committed under section 353 because the,
public servant was not assaulted to deter him from discharge of his duty.995. The wife,
of the accused was being taken to Police Station in execution of search warrant,
accompanied by a police constable. The accused attacked his wife and also the police,
"constable. Conviction of the accused under section 353 was held to be proper, though",
no injury as such was caused to the constable. The Court observed that actual causing,
of injury is not necessary for conviction under section 353.996. In a complaint under,
sections 323 and 329 the investigating Head Constable demanded bribe for arresting,
some persons and was caught red-handed in a trap but on his call the villagers,
attacked the raiding party and snatched away their belongings and currency notes used,
"in the trap, thus deterring the public servants from discharging their duties and",
rescuing the accused from the lawful custody of the Inspector of the raiding party.,
"Conviction of the Head Constable under section 395 read with section 109, sections",
"353/109 and 224, the constable whom the head constable handed over the money",
"under section 395 and the villagers under sections 353, 149, 226 and 147 was",
upheld.997. Four persons brought a woman to a room of a circuit house for the purpose,
of prostitution. When one of them was busy in sexual intercourse and others were busy,
"in drinking, the police reached there and as they were about to arrest the accused, one",
of the accused obstructed the police officers in discharge of their duties. The,
conviction of that accused under section 353 was upheld.998.,
"[s 353.6] Section 353 vis-a-vis Section 186 IPC, 1860.—",
There is an essential distinction between the offences punishable under sections 353,
"and 186 IPC, 1860. The ingredients of the two offences are distinct and different. While",
"the former is a cognizable offence, the latter is not. A mere obstruction or resistance",
unaccompanied by criminal force or assault will not constitute an offence under,
"section 353 IPC, 1860. Where an accused voluntarily obstructs a public servant in the",
"discharge of his duties, section 186 IPC, 1860 is attracted. But under section 353, there",
must be in addition to the obstruction use of criminal force or assault to the public,
servant while he was discharging his duty. It may also be noted that the quality of the,
two offences is also different. While section 186 occurs in Chapter X dealing with,
"contempt of the lawful authority of public servants, section 353 appears in Chapter XVI",
which deals with offences affecting the human body. This is also a clear indication that,
"use of criminal force contemplated under section 353 IPC, 1860 is against a person",
and not against any inanimate object.999.,
"977. Dalip, (1896) 18 All 246 ; Raman Singh v State, (1900) 28 Cal 411 , 414; Bolai De, (1907) 35",
"Cal 361 ; Provincial Government, Central Provinces and Berar v Nonelal, (1946) Nag 395. See,",
"however, Yamanappa Limbaji, (1955) 58 Bom LR 551 .",
"978. Prasad v State, 2013 (1) KLD 714; State of HP v Dinesh Chander Sharma, 2011 Cr LJ 2418",
(HP).,
"979. State of HP v Durga, 1980 Cr LJ (NOC) 10 (HP).",
"980. Raj Singh v State of Haryana, 2008 Cr LJ 3205 (PH).",
"981. Sumersinbh Umedsinh Rajput v State of Gujarat, AIR 2008 SC 904 [LNIND 2007 SC 1450] :",
(2007) 13 SCC 83 [LNIND 2007 SC 1450] .,
"982. Narain, (1875) 7 NWP 209.",
"983. Pukot Kotu, (1896) 19 Mad 349.",
"984. Shyam Lal, 1972 Cr LJ 638 : AIR 1972 SC 886 [LNIND 1972 SC 100] ; See also State of UP v",
"Sant Prakash, 1976 Cr LJ 274 (All—FB).",
"985. Bhairon Singh v State of Rajasthan, 2010 Cr LJ 1177 (Raj).",
"986. Rakhmaji, (1885) 9 Bom 558. A teacher, against whom an inquiry had been conducted by a",
"constable, abused a constable who was waiting for a bus to the police station, thinking that he",
"was the same constable, was let off with admonition. State of Karnataka v M Chandrappa, 1987",
Cr LJ 950 (Kant).,
"987. State of Tripura v Sashimohan, 1977 Cr LJ 1663 (Gau).",
"988. Poulose, 1985 Cr LJ 222 (Ker).",
"989. SN Roy, 1978 Cr LJ 1514 (Gau). See also Sagwan Passi, 1978 Cr LJ 1062 (Pat).",
"990. Chandrika Sao, AIR 1967 SC 170 [LNIND 1962 SC 316] : 1967 Cr LJ 261 .",
"991. Manumiya, 1979 Cr LJ 1384 : AIR 1979 SC 1706 [LNIND 1979 SC 93] .",
"992. Prakash Chandra Bafna v Oba Ram, 2011 Cr LJ 416 (Raj).",
"993. Manik Taneja v State of Karnataka, 2015 Cr LJ 1483 .",
"994. P Rama Rao, 1984 Cr LJ 27 (AP). See BS Narayanan v State of AP, 1987 SCC (Cr) 791 : 1987",
"Supp SCC 172 , where the offender was released under the Probation of Offenders Act, 1958.",
There was a long lapse of time and also the chance of the offender losing his job. Shaik Ayyub v,
"State of Maharashtra, (1995) 1 Cr LJ 420 : (1994) Supp 2 SCC 269. Killing police officers to resist",
"arrest, punished under the section.",
"995. Rajendra Datt v State of Haryana, 1993 Cr LJ 1025 (P&H).",
"996. Devisingh v State of MP, 1993 Cr LJ 1301 (MP).",
"997. Ami Lal v State of Rajasthan, 1996 Cr LJ 1585 (Raj).",
"998. Kalyanasundaram v State of TN, 1994 Cr LJ 2487 (Mad).",
"999. Devaki Amma v State, 1981 Ker LT 475 .",
THE INDIAN PENAL CODE,
CHAPTER XVI OF OFFENCES AFFECTING THE HUMAN BODY OF,
OFFENCES AFFECTING LIFE,
Of Criminal Force and Assault,
[s 354] Assault or criminal force to woman with intent to outrage her modesty.,
"Whoever assaults or uses criminal force to any woman, intending to outrage or",
"knowing it to be likely that he will thereby outrage her modesty, 1000.[shall be",
punished with imprisonment of either description for a term which shall not be less,
"than one year but which may extend to five years, and shall also be liable to fine.]",
State Amendments,
Andhra Pradesh.—The following amendments were made by Act No. 6 of 1991.,
"In its application to the State of Andhra Pradesh, for section 354 of the Indian Penal",
"Code, 1860, the following section shall be substituted namely—",
354. Assault or criminal force to woman with intent to outrage her modesty.—Whoever,
"assaults or uses criminal force to any woman, intending to outrage or knowing it to be",
"likely that he will thereby outrage her modesty, shall be punished with imprisonment of",
either description for a term which shall not be less than five years but which may,
extend to seven years and shall also be liable to fine:,
"Provided that the court may, for adequate and special reasons to be mentioned in the",
"judgment, impose a sentence of imprisonment of either description for a term which",
"may be less than five years, but which shall not be less than two years.",
[Vide Andhra Pradesh Act 6 of 1991].,
"Chattisgarh—In section 354, insert the following proviso, namely:",
"""Provided that where offence is committed, under this section by a relative, guardian or",
"teacher or a person in a position of trust or authority towards the person assaulted, he",
shall be punishable with imprisonment of either description for a term which shall not,
be less than two years but which may extend to seven years and shall also be liable to,
"fine.""",
"[Vide Chattisgarh Act 25 of 2015, sec. 3 (w.e.f. 21-7-2015).]",
Madhya Pradesh.—The following amendments were made by Act No. 14 of 2004.,
"In its application to the State of Madhya Pradesh, after section 354 of the Indian Penal",
"Code, 1860, the following section shall be inserted namely—",
"""354A. Assault or use of Criminal force to woman with intent to disrobe her.—Whoever",
assaults or uses criminal force to any woman or abets or conspires to assault or uses,
such criminal force to any woman intending to outrage or knowing it to be likely that by,
"such assault, he will thereby outrage or causes to be outraged the modestly of the",
"woman by disrobing or compel her to be naked on any public place, shall be punished",
with imprisonment of either description for a term which shall not be less than one year,
"but which may extent to ten years and shall also be liable to fine.""",
"[Vide Madhya Pradesh Act 14 of 2004, sec. 3 (w.e.f. 2-12-2004)].",
"Orissa.—In the First Schedule to the Code of Criminal Procedure, 1973 in the entry",
under column 5 relating to section 354 of the Indian Penal Code (45 of 1860) for the,
"word 'Bailable', the word 'non-bailable' shall be substituted (vide Orissa Act 6 of 1995,",
"section 3, w.e.f. 10-3-1995).",
COMMENT.—,
"The provisions of section 354 IPC, 1860 has been enacted to safeguard public morality",
"and decent behaviour. Therefore, if any person uses criminal force upon any woman",
"with the intention or knowledge that the woman's modesty will be outraged, he is to be",
"punished. In Vishaka v State of Rajasthan,1001. and Apparel Export Promotion Council v",
"AK Chopra,1002. the Supreme Court held that the offence relating to modesty of woman",
"cannot be treated as trivial. In order to constitute the offence under section 354, IPC,",
1860 mere knowledge that the modesty of a woman is likely to be outraged is sufficient,
without any deliberate intention of such outrage alone for its object. There is no,
abstract conception of modesty that can apply to all cases. A careful approach has to,
be adopted by the Court while dealing with a case alleging outrage of modesty.,
"The essential ingredients of the offence under section 354, IPC, 1860 are as under:",
(1) That the person assaulted must be a woman.,
(2) Accused must have used criminal force on her intending thereby to outrage her,
modesty.,
(3) What constitutes an outrage to female modesty is nowhere defined—The,
essence of a woman's modesty is her sex.,
"(4) Act of pulling a woman, removing her dress coupled with a request for sexual",
"intercourse, as such would be an outrage to the modesty of a woman.",
"(5) Knowledge, that modesty is likely to be outraged, is sufficient to constitute the",
offence without any deliberate intention of having such outrage alone for its,
object.1003.,
"Intention is not the sole criterion of the offence punishable under section 354, IPC,",
1860 and it can be committed by a person assaulting or using criminal force to any,
"woman, if he knows that by such act the modesty of the woman is likely to be affected.",
Knowledge and intention are essentially things of the mind and cannot be,
demonstrated like physical objects. The existence of intention or knowledge has to be,
culled out from various circumstances in which and upon whom the alleged offence is,
alleged to have been committed.1004. Even though it is true that assault or criminal,
force to woman is one of the essential pre-conditions for applicability of section 354,
"IPC, 1860 but the same has to be with an intent to outrage her modesty or knowing it to",
be likely that he will thereby outrage her modesty. Neither the use of criminal force,
alone nor act of outraging the modesty alone is sufficient to attract an offence under,
"section 354 IPC, 1860.1005.",
[s 354.1] Modesty.—Meaning.—,
The essence of a woman's modesty is her sex. The culpable intention of the accused is,
"the crux of the matter. The reaction of the woman is very relevant, but its absence is",
not always decisive. Modesty is an attribute associated with female human beings as a,
class. It is virtue which attaches to a family owing to her sex. The ultimate test for,
"ascertaining whether the modesty of a woman has been outraged, assaulted or",
insulted is that the action of the offender should be such that it may be perceived as,
one which is capable of shocking the sense of decency of a woman. A person slapping,
on the posterior of a woman in full public glare would amount to outraging her modesty,
for it was not only an affront to the normal sense of feminine decency but also an,
"affront to the dignity of the lady. The word ""modesty"" is not to be interpreted with",
"reference to the particular victim of the act, but as an attribute associated with female",
human beings as a class. It is a virtue which attaches to a female on account of her,
"sex.1006. In State of Punjab v Major Singh,1007., a three-Judge Bench of the Supreme",
Court considered the question — Whether modesty of a female child of seven and half,
"months can also be outraged. The majority view was in the affirmative. Bachawat, J, on",
"behalf of majority, opined as:",
The offence punishable u/s. 354 is an assault on or use of criminal force to a woman with,
the intention of outraging her modesty or with the knowledge of the likelihood of doing so.,
The Code does not define 'modesty'. What then is a woman's modesty? … The essence of a,
woman's modesty is her sex. The modesty of an adult female is written large on her body.,
"Young or old, intelligent or imbecile, awake or sleeping, the woman possesses a modesty",
capable of being outraged. Whoever uses criminal force to her with intent to outrage her,
modesty commits an offence punishable u/s. 354. The culpable intention of the accused is,
"the crux of the matter. The reaction of the woman is very relevant, but its absence is not",
"always decisive, as, for example, when the accused with a corrupt mind stealthily touches",
"the flesh of a sleeping woman. She may be an idiot, she may be under the spell of",
"anaesthesia, she may be sleeping, she may be unable to appreciate the significance of the",
"act; nevertheless, the offender is punishable under the section.1008.",
An indecent assault upon a woman is punished under this section. Rape is punished,
under section 376; but the offence under this section is of less gravity than rape.1009.,
Knowledge that modesty is likely to be outraged has been held to be sufficient to,
constitute the offence without any deliberate intention to outrage modesty. In this case,
"the victim woman was brought into a room under false pretexts, the room was locked",
"from outside, inside she was forced to drink, photographs taken in naked state and",
raped. All the participants were held to be guilty of outraging her modesty.1010. A,
person who is guilty of attempting rape cannot be allowed to escape with the lesser,
penalty of this section. Where the accused walked into the room where a female child,
of seven and a half months was sleeping and committed an indecent assault on the,
"child, he was held to have committed an offence under this section as he had outraged",
and intended to outrage whatever modesty the little victim was capable of.1011. Their,
Lordships of the House of Lords have pointed out that a person is guilty of indecent,
assault if he intentionally assaults the victim and intends to commit not just an assault,
"but an indecent assault, i.e., an assault which right-minded persons would think is",
"indecent. Accordingly, any evidence explaining the defendant's conduct, whether an",
"admission by him or otherwise, is admissible to establish whether he intended to",
"commit an indecent assault. In this case,1012. a 26-year-old shop assistant pulled a 12-",
year-old girl visitor to the shop across his knees and smacked her with his hand 12,
times on her bottom outside her shorts for no apparent reason. On being asked he,
"explained his weakness as ""buttock fetish"". But for this admission there was nothing to",
convert the assault (to which he confessed) into an indecent one. His explanation to,
his secret motive was held to be relevant to hold him guilty of indecent assault.,
"Moreover, according to section 10, IPC, 1860 a woman denotes a female human being",
of any age. Where the woman is a consenting party there cannot be any outraging of,
modesty.1013. Unless culpable intention is proved mere touching the belly of a female,
in a public bus cannot be called a deliberate act of outraging the modesty of a female,
within the meaning of this section. In the circumstances of the case the act of the,
accused was held to be accidental and not intentional.1014. Where the accused caught,
hold of a married woman and tried to open the string of her salwar with a view to,
"committing rape on her but being hit by the woman with a kulhari fled away, it was held",
"that he could not be convicted under section 376 read with section 511 IPC, 1860 as",
his action did not show a determination to have sexual intercourse at all events and in,
spite of resistance. The conviction of the accused was accordingly changed to one,
"under section 354, IPC, 1860.1015.",
"Where the allegation was, while the victim was returning from home, the accused came",
"from behind and pressed her breast, the Court convicted him under section 354 IPC,",
1860.1016. The accused came from behind her and caught hold of her and laid her,
down on the cot and sat on her chest. She shouted and after that the accused left her,
"house. After hearing her shouts, her cousin mother-in-law came there. High Court",
"rejected the defence of false implication and convicted the accused under section 354,",
"IPC, 1860.1017. Where a married woman alleged that the two accused persons had",
dragged her in her own home and raped her one after the other and the medical,
"evidence showed that though there were traces of semen on her clothes, there were",
"none on the clothes of the accused persons, the Court opined that the case was not",
made out; the presence of semen on the clothes of a married woman is not unusual,
"and therefore, the accused could have been prosecuted only for outraging the modesty",
of a woman.1018.,
"Some labourers, including a woman, were taken to a police station for some work.",
"When they demanded wages, they were beaten up. The woman was stripped bare and",
thrashed. The matter came before the Supreme Court in a writ petition under Article 32,
"of the Constitution. The Supreme Court held that the offence under section 354, IPC,",
1860 was established in reference to the woman and awarded compensation to be,
recovered from the salary of the guilty officers.1019. The offence was held to have been,
made out where a senior police officer slapped the posterior of the prosecutrix in the,
midst of guests in a party. The accused must have been fully aware that such an act,
would embarrass her and outrage her modesty. She made hue and cry immediately.,
Her conduct did not suggest that she was stage-managing things to malign the,
accused. The Court observed such behaviour was not expected from a high-ranked,
police officer. His conviction for the offence under the section was maintained by the,
Supreme Court.1020.,
[s 354.2] Parading a naked tribal woman.—,
In a case of parading of a naked tribal woman after disrobing her on the village road in,
"broad daylight by appellants, the Supreme Court held that the dishonour of the victim",
called for harsher punishment.1021.,
[s 354.3] Outraging modesty or Rape.—,
Dividing line between attempt to commit rape and indecent assault is not only thin but,
also is practically invisible. Evidence of informant that when she went to the house of,
"accused, she found that the victim was sleeping on the floor and accused was lying on",
her. Accused removed her nicker with a view to commit sexual intercourse. Medical,
evidence does not indicate as to whether accused has tried to force his penis inside,
the private part of girl but could not succeed. Offence committed by accused did not,
amount to attempt to commit rape punishable under section 376 read with section 511,
"of IPC, 1860 but was one under section 354.1022. Though there was ample evidence",
"that the victim was disrobed by the accused and thus the accused, outraged her",
modesty there was no evidence of rape. Conviction under section 376 was altered to,
section 354.1023. But in State of UP v Rajit Ram1024. the Supreme Court set aside a,
judgment by which a conviction under section 376 was altered to section 354 and,
remitted the case back to trial court. The accused in another case had forcibly laid the,
prosecutrix on the bed and broken her pyjama's string but made no attempt to undress,
"himself and when the prosecutrix pushed him away, he did not make efforts to grab her",
again. It was held that it was not an attempt to rape but only outraging of the modesty,
of a woman and conviction under section 354 was proper.1025. But in Ram Mehar v,
"State of Haryana,1026. the accused caught hold of the prosecutrix, lifted her and then",
"took her to a bajra field where, he pinned her down and tried to open her salwar but",
could not do so as the prosecutrix had injured him by giving a sickle blow. The accused,
failed to give his blood sample with the result it could be presumed that his innocence,
was doubtful. Ocular evidence of the prosecutrix was also corroborated by other,
"evidence. It was held that conviction of the accused under sections 354, 376/511 was",
"proper. The accused caught the victim from behind, pushed her on ground, removed her",
panty and attempted rape. Upon getting opportunity she kicked him in testicles and,
escaped from place of occurrence. The accused was convicted under section 511 read,
with section 376.1027.,
"[s 354.4] Punishment enhanced by Criminal Law (Amendment) Act, 2013 (Act",
13 of 2013).—,
"By the Criminal Law (Amendment) Act, 2013 while no change has been made in the",
"definition of the offence, the punishment for the offence prescribed in this section has",
been changed by providing a minimum sentence of one year and a maximum sentence,
of five years.,
[s 354.5] CASES.—,
Where the allegation was that the Principal of a school misbehaved with the girl,
"student, the High Court declined to quash the FIR, though he was exonerated in",
Departmental proceedings.1028. Where the prosecutrix did not state specifically about,
"the act, but has loosely described as ""fondling"", the Supreme Court altered the",
"conviction from section 376 to section 354.1029. Victim, a deaf and dumb girl aged 13",
years was lured by the accused from her house to a distant place. When family of,
"victim reached place, the accused fled away leaving victim who was weeping. Her",
clothes were soiled with mud and accused concealed it. Accused was liable to be,
convicted under section 354.1030. Where the accused touched the hand of the blind,
"prosecutrix, removed the quilt with which she was covering herself and put his hand in",
"her 'midi', conviction of the accused for attempt to commit rape was set aside but",
"conviction under sections 354, 457 and 506 was confirmed.1031.",
Where the accused forcibly laid the prosecutrix on bed and cut the string of her pyjama,
"and tore her underwear but did not undress himself, the offence fell under section 354",
and the offence of attempt to commit rape was not made out.1032.,
Where the accused persons caught hold of a woman and removed the 'saree' from her,
"person but ran away on seeing someone approaching, their act attracted section 354",
and not sections 375/511. Their conviction under sections 376/511 read with section,
34 was altered to one under sections 354/34.1033.,
Sexual harassment and punishment for sexual harassment.,
[s 354.6] Compounding.—,
"Where the accused and respondent No. 2 had entered into a compromise and,",
"accordingly, she had filed an affidavit before the Supreme Court during the pendency of",
appeal. Supreme Court allowed to compound the offences under sections 354 and 506,
"IPC, 1860.1034.",
[s 354.7] Jurisdiction.—,
The petitioners were charged with the offence of kidnapping and outraging the,
modesty of the victim girl. She was taken to different places by train. In the course of,
the journeys she was subjected to outraging. It was held that the Courts of the other,
place would have jurisdiction to try the offender for both the offences.1035. The,
accused held the arms of the prosecutrix with one hand and put the other hand on her,
breasts. This was held to be an offence under section 354.1036.,
[s 354.8] Sentencing.—,
The Court must not only keep in view the rights of the victim of the crime but also the,
society at large while considering the imposition of an appropriate punishment.1037.,
[s 354.9] Benefit of Probation.—,
As the appellant has committed a heinous crime and with the social condition,
"prevailing in the society, the modesty of a woman has to be strongly guarded and as",
"the appellant behaved like a roadside romeo, the Supreme Court held that it is not a fit",
"case where the benefit of the Probation of Offenders Act, 1958 should be given to the",
appellant.1038.,
"1000. Subs. by Act 13 of 2013, section 6, for ""shall be punished with imprisonment of either",
"description for a term which may extend to two years, or with fine, or with both"" (w.r.e.f. 3-2-",
2013).,
"1001. Vishaka v State of Rajasthan, AIR 1997 SC 3011 [LNIND 1997 SC 1081] .",
"1002. Apparel Export Promotion Council v AK Chopra, AIR 1999 SC 625 [LNIND 1999 SC 33] .",
"1003. Aman Kumar v State of Haryana, AIR 2004 SC 1497 [LNIND 2004 SC 184] : (2004) 4 SCC",
379 [LNIND 2004 SC 184] .,
"1004. Namdeo Dnyanaba Agarkar v State of Maharashtra, 2013 Cr LJ 3946 (Bom); Vidyadharan v",
"State of Kerala, AIR 2004 SC 536 [LNIND 2003 SC 985] : (2004) 1 SCC 215 [LNIND 2003 SC 985] ;",
"State of Punjab v Major Singh, AIR 1967 SC 63 [LNIND 1966 SC 130] .",
"1005. Gigi v State, 2013 Cr LJ (NOC) 228 .",
"1006. Tarkeshwar Sahu v State of Bihar, (2006) 8 SCC 560 [LNIND 2006 SC 795] : 2006 (3) SCC",
"(Cr) 556; Aman Kumar v State of Haryana, AIR 2004 SC 1497 [LNIND 2004 SC 184] ; Raju",
"Pandurang Mahale v State of Maharashtra, AIR 2004 SC 1677 [LNIND 2004 SC 194] .",
"1007. State of Punjab v Major Singh, AIR 1967 SC 63 [LNIND 1966 SC 130] : 1967 Cr LJ 1 .",
"1008. Also see Sanjay Das v The State of MP, 2011 Cr LJ 2095 (Chh).",
"1009. Madan Lal v State of Rajasthan, 1987 Cr LJ 257 (Raj). Man Singh v State of Rajasthan,",
"(1995) 2 Cr LJ 2050 (Raj), no proof of either alleged rape or of outraging modesty. State of TN v",
"P Balan, 1996 Cr LJ 3705 (Mad), girl forcibly laid up, seminal stains were absent from the body",
"or clothes, held offence not proved, punishment under sections 341/354.",
"1010. Raju Pandurang Mohale v State of Maharashtra, (2004) 4 SCC 371 [LNIND 2004 SC 194] :",
AIR 2004 SC 1677 [LNIND 2004 SC 194] .,
"1011. Major Singh, AIR 1967 SC 63 [LNIND 1966 SC 130] : 1967 Cr LJ 6 .",
"1012. R v Court, (1988) 2 All ER 221 (HL).",
"1013. Sadananda, 1972 Cr LJ 658 (Assam).",
"1014. SP Mallik, 1982 Cr LJ 19 (Pat). Divender Singh v Hari Ram, 1990 Cr LJ 1845 HP, pushing",
"and beating a girl, intention to outrage modesty not established. Citing, Ram Das v State of WB,",
AIR 1954 SC 711 : 1954 Cr LJ 793 . Assault by one public servant upon another public servant,
would be covered by section 355 and not by this section. Santanu Kumar Sadangi v State of,
"Orissa, 1989 Cr LJ 2353 (Ori).",
"1015. Rameshwar, 1984 Cr LJ 786 (P&H). Ram Asrey v State of UP, 1990 Cr LJ 405 : 1989 All LJ",
"165, High Court can allow compounding of this offence.",
"1016. Asharaf Khan v State of MP, 2013 Cr LJ 1286 (MP)",
"1017. Namdeo Dnyanaba Agarkar v State of Maharashtra, 2013 Cr LJ 3946 (Bom). Pritam Singh v",
"State of HP, 2012 Cr LJ 468 (HP); Dhannula Govindaraju v State of AP, 2011 Cr LJ 395 (AP).",
"1018. State of Orissa v Musa, 1991 Cr LJ 2168 (Ori). For another case of dragging a woman and",
"making her forcibly naked and committing some acts, but no proof of rape and therefore, the",
"court opining conviction under this section, see Basudev Naik v State of Orissa, 1991 Cr LJ 1594",
(Ori). The accused loosening the cord of the petticoat of the prosecutrix and about to sit on her,
waist when she cried out for help. Conviction under this section and not for rape. It was not,
"even attempt to rape, but only a preparation for it. Ankariya v State of MP, 1991 Cr LJ 751 .",
"1019. Peoples' Union for Democratic Rights v Police Commissioner, Delhi Police Headquarter,",
"(1989) 4 SCC 730 : 1990 SCC (Cr) 75. See also Chander Kala v Ram Kishan, AIR 1985 SC 1268",
"[LNIND 1985 SC 166] : 1985 Cr LJ 1490 : (1985) 4 SCC 212 [LNIND 1985 SC 166] , charge under",
"the section was fully established; Rafi Uddin Khan v State of Orissa, 1992 Cr LJ 874 (Ori),",
"essentials of rape not made, but those of outraging modesty established.",
"1020. Kanwar Pal S Gill v State (Admn. of UT, Chandigarh), 2005 Cr LJ 3443 : AIR 2005 SC 3104",
"[LNIND 2005 SC 558] : (2005) 6 SCC 161 [LNIND 2005 SC 558] , delay in filing complaint was",
"due to the fact that she first struggled for administrative action and having failed, filed a",
complaint.,
"1021. Kailas v State of Maharashtra, (2011) 1 SCC 793 [LNIND 2011 SC 22] : AIR 2011 SC 598",
[LNIND 2011 SC 22] .,
"1022. Tukaram Govind Yadav v State of Maharashtra, 2011 Cr LJ 1501 (Bom).",
"1023. Jeet Singh v State, 2013 Cr LJ (NOC) 365 ; Aman Kumar v State of Haryana, AIR 2004 SC",
1497 [LNIND 2004 SC 184] : (2004) 4 SCC 379 [LNIND 2004 SC 184] .,
"1024. State of UP v Rajit Ram, 2011 (6) Scale 477 : (2011) 14 SCC 463 .",
"1025. Jai Chand v State, 1996 Cr LJ 2039 (Del); Bisheshwar Murmu v State of Bihar, 2004 Cr LJ",
326 (Jhar).,
"1026. Ram Mehar v State of Haryana, 1998 Cr LJ 1999 (P&H).",
"1027. Rajesh Vishwakarma v State of Jharkhand, 2011 Cr LJ 2753 (Jha).",
"1028. KP Sharma v State, 2013 Cr LJ (NOC) 367 (Raj); Amit Kumar Alias Mittal v State of UP, 2011",
Cr LJ 3710 (All).,
"1029. Premiya v State of Rajasthan, AIR 2009 SC 351 [LNIND 2008 SC 1889] : (2008) 10 SCC 81",
[LNIND 2008 SC 1889] .,
"1030. State v Sangay Sherpa, 2013 Cr LJ 2266 (Sik).",
"1031. Keshav Baliram Naik v State of Maharashtra, 1996 Cr LJ 1111 (Bom). Sanjay Das v The",
"State of MP, 2011 Cr LJ 2095 (Chh)—Allegation was that accused/appellants caught hold of",
prosecutrix's hand and tried to pull her to do bad work with her. There is no cogent evidence in,
"respect of section 506 Part II of IPC, 1860. However, act done by accused is liable to be",
"punished under section 354 of IPC, 1860.",
"1032. Jai Chand v State, 1996 Cr LJ 2039 (Del).",
"1033. Damodar Behera v State of Orissa, 1996 Cr LJ 346 (Ori). Another similar case is State of",
"Karnataka v Shivaputrappa, 2002 Cr LJ 1686 (Kant), it was a murder taking place in the process",
of attempted rape. The accused was seen running away from the place of the incident. Medical,
evidence was not able to establish the precise cause of death. Medical evidence also showed,
"that there was no sexual assault, but there were minor injuries on the lower part of the body",
from which the offence of outraging her body was made out. Conviction under section 376/511,
"was altered to one under section 354. Shiv Shankar v State of UP, 2002 Cr LJ 2673 (All), the",
accused caught hold of the victim and then made her fall to the ground. This was held to be not,
"an attempt to rape but an outrage to the modesty of a woman. Shoukat v State of Rajasthan,",
"2002 Cr LJ 364 (Raj), taking away a nursing woman from her home under false pretences and",
"then molesting and beating her on the way, held, outraging the modesty of a woman made out.",
"Bali v State of Rajasthan, 2001 Cr LJ 909 (Raj), allegation of forcible rape not proved but",
"application of force to outrage the modesty of women proved, punishment under section 354.",
"Tarachand v State of Rajasthan, 2001 Cr LJ (Raj), victims primary school students of tender age,",
"the sexual assailant was their head master, conviction. Madan Lal v State of J&K, 1998 Cr LJ 667",
"(SC), evidence showed that the accused had gone beyond the stage of preparation, mere non-",
penetration was not sufficient to absolve him of the offence of attempt to commit rape. It was,
"not a case of mere assault under section 354. Kuthu v State of MP, 1998 Cr LJ 960 (MP), the",
accused took the prosecutrix by deception to a lonely place and cruelly pushed a bunch of,
"leaves into her mouth. They untied her undergarments to satisfy their lust. Conviction proper,",
"four months RI not interfered with. Shivraj Chandrappa Yadav v State, 1998 Cr LJ 3168 , the",
accused attempted to commit rape on a 10 year old girl. Sentence of two years RI and fine of,
Rs. 500 under section 354 and six months imprisonment and fine of Rs. 100 under section 342,
"was not interfered with. See also Raja v State of Rajasthan, 1998 Cr LJ 1608 (Raj); Ram Mehar v",
"State, 1998 Cr LJ 1999 (P&H); Peedikandi Abdulla v State of Kerala, 1998 Cr LJ 2758 (Ker);",
"Shakuntala Devi v Suneet Kumar, 1997 Cr LJ 335 (Del), accused entered house of complainant,",
"dragged her out, tore her clothes and improperly behaved with her, prima facie, the offence made",
"out. Refusal by court to frame charge was improper. Raja Giri v State of Bihar, 2003 Cr LJ 2347",
"(Pat), the victim woman intercepted and laid down on the ground with the intent of raping her,",
"witnesses reached on her cries and they could not go further, guilty of outraging modesty.",
"1034. Surat Singh v State, (2012) 12 SCC 772 [LNIND 2012 SC 837] : 2013 (1) Scale 1 [LNIND",
2012 SC 837] .,
"1035. Devalla Venkateswarlu v State of AP, 2000 Cr LJ 798 (AP).",
"1036. State of HP v Ram Das, 1999 Cr LJ 2802 (HP), her public image and position in family was",
"damaged, even the accused was directed to pay a fine of Rs. 1000 only because of the fact that",
the incident was fairly old.,
"1037. State of MP v Bablu, 2014 Cr LJ 4565 : 2014 (9) Scale 678 [LNIND 2014 SC 948] .",
"1038. Ajahar Ali v State of WB, 2013 (12) Scale 410 [LNIND 2013 SC 924] ; Pritam Singh v State",
"of HP, 2012 Cr LJ 468 (HP)– Petitioner, aged about 28 years, agriculturist by profession,",
belonged to a respectable and peace-loving family — He would be stigmatised and in case he,
was sentenced his life would be ruined— Benefits of section 4 of Act was granted to petitioner.,
THE INDIAN PENAL CODE,
CHAPTER XVI OF OFFENCES AFFECTING THE HUMAN BODY OF,
OFFENCES AFFECTING LIFE,
Of Criminal Force and Assault,
1039.[[s 354-A] Sexual harassment and punishment for sexual harassment.,
(1) A man committing any of the following acts—,
(i) physical contact and advances involving unwelcome and explicit sexual,
overtures; or,
(ii) a demand or request for sexual favours; or,
(iii) showing pornography against the will of a woman; or (iv) making sexually,
coloured remarks;,
shall be guilty of the offence of sexual harassment.,
(2) Any man who commits the offence specified in clause (i) or clause (ii) or,
clause (iii) of sub-section (1) shall be punished with rigorous imprisonment for,
"a term which may extend to three years, or with fine, or with both.",
(3) Any man who commits the offence specified in clause (iv) of sub-section (1),
shall be punished with imprisonment of either description for a term which,
"may extend to one year, or with fine, or with both.]",
COMMENTS.—,
This new provision has its origin in the judgment of Supreme Court1040. dealing with,
the issue of sexual harassment in workplaces. The suggestions given by Supreme,
Court got statutory recognition by the enactment of Sexual Harassment of Women at,
"Workplace (Prevention, Prohibition and Redressal) Act, 2013.1041.",
"1039. Ins. by the Criminal Law (Amendment) Act, 2013 (13 of 2013), section 7 (w.e.f. 3-2-2013).",
"1040. Vishakha v State of Rajasthan, AIR 1997 SC 3011 [LNIND 1997 SC 1081] : (1997) 6 SCC",
241 [LNIND 1997 SC 1081] .,
1041. Act 14 of 2013 (w.e.f 9 December 2013).,
THE INDIAN PENAL CODE,
CHAPTER XVI OF OFFENCES AFFECTING THE HUMAN BODY OF,
OFFENCES AFFECTING LIFE,
Of Criminal Force and Assault,
1042.[s 354-B] Assault or use of criminal force to woman with intent to disrobe.,
Any man who assaults or uses criminal force to any woman or abets such act with the,
"intention of disrobing or compelling her to be naked, shall be punished with",
imprisonment of either description for a term which shall not be less than three years,
"but which may extend to seven years, and shall also be liable to fine.]",
COMMENTS.—,
"This new provision has not been based on any recommendation, but is an incorporation",
of the State Amendment made by Madhya Pradesh into the original section 354 which,
was numbered as a separate section 354A.,
"1042. Ins. by the Criminal Law (Amendment) Act, 2013 (13 of 2013), section 7 (w.e.f. 3-2-2013).",
THE INDIAN PENAL CODE,
CHAPTER XVI OF OFFENCES AFFECTING THE HUMAN BODY OF,
OFFENCES AFFECTING LIFE,
Of Criminal Force and Assault,
1043.[s 354-C] Voyeurism.,
"Any man who watches, or captures the image of a woman engaging in a private act in",
circumstances where she would usually have the expectation of not being observed,
either by the perpetrator or by any other person at the behest of the perpetrator or,
disseminates such image shall be punished on first conviction with imprisonment of,
"either description for a term which shall not be less than one year, but which may",
"extend to three years, and shall also be liable to fine, and be punished on a second or",
"subsequent conviction, with imprisonment of either description for a term which shall",
"not be less than three years, but which may extend to seven years, and shall also be",
liable to fine.,
"Explanation 1.—For the purposes of this section, ""private act"" includes an act of",
"watching carried out in a place which, in the circumstances, would reasonably be",
"expected to provide privacy and where the victim's genitals, posterior or breasts are",
exposed or covered only in underwear; or the victim is using a lavatory; or the victim,
is doing a sexual act that is not of a kind ordinarily done in public.,
"Explanation 2.—Where the victim consents to the capture of the images or any act, but",
not to their dissemination to third persons and where such image or act is,
"disseminated, such dissemination shall be considered an offence under this section.]",
COMMENTS.—,
This is a new provision prescribing an offence based on the suggestions of the Justice,
"JS Verma Committee, constituted in the aftermath of the December 2012 Nirbhaya",
"rape incident. During the deliberations, the Committee was surprised to find out that",
"offences such as stalking, voyeurism, 'eve-teasing', etc., are perceived as 'minor'",
"offences, even though they are capable of depriving not only a girl child but frail",
children of their right to education and their freedom of expression and movement. The,
Committee was of the view that it is not sufficient for the State to legislate and,
"establish machinery of prosecution, but conscious and well-thought-out attempts are",
required to be made to ensure the culture of mutual respect is fostered in India's,
children. Preventive measures for the initial minor aberrations were deemed necessary,
to check their escalation into major sexual aberrations.,
The definition of this offence has the following ingredients:,
(I) If a person—,
"(i) either watches,",
(ii) or captures the image.,
"(II) of, a woman engaging in a private act.",
(III) in circumstances where she would usually have the expectation of—,
(i) either not being observed by the perpetrator,
(ii) or not being observed by any other person at the behest of the perpetrator.,
"1043. Ins. by the Criminal Law (Amendment) Act, 2013 (13 of 2013), section. 7 (w.e.f. 3-2-",
2013).,
THE INDIAN PENAL CODE,
CHAPTER XVI OF OFFENCES AFFECTING THE HUMAN BODY OF,
OFFENCES AFFECTING LIFE,
Of Criminal Force and Assault,
1044.[s 354-D] Stalking.,
(1) Any man who—,
"(i) follows a woman and contacts, or attempts to contact such woman to",
foster personal interaction repeatedly despite a clear indication of,
disinterest by such woman; or,
"(ii) monitors the use by a woman of the internet, email or any other form of",
"electronic communication, commits the offence of stalking:",
Provided that such conduct shall not amount to stalking if the man who,
pursued it proves that—,
(i) it was pursued for the purpose of preventing or detecting crime and the,
man accused of stalking had been entrusted with the responsibility of,
prevention and detection of crime by the State; or,
(ii) it was pursued under any law or to comply with any condition or,
requirement imposed by any person under any law; or,
(iii) in the particular circumstances such conduct was reasonable and,
justified.,
(2) Whoever commits the offence of stalking shall be punished on first conviction,
with imprisonment of either description for a term which may extend to three,
"years, and shall also be liable to fine; and be punished on a second or",
"subsequent conviction, with imprisonment of either description for a term",
"which may extend to five years, and shall also be liable to fine.]",
COMMENTS.—,
The definition of this offence has the following ingredients:,
(I) If a man—,
"(i) follows a woman and contacts or attempts to contact such woman,",
"(ii) monitors the use by a woman of the internet, e-mail or any other form of",
"electronic communication,",
(iii) or watches or spies on a person,
(II) to foster personal interaction repeatedly,
(III) despite a clear indication of disinterest by such woman,
"So, when despite a clear indication of disinterest by woman, if she is followed by a man",
either in person or through the electronic medium then he is guilty of the offence of,
stalking as defined in this section,
[s 354-D.1]Eve-teasing.—,
The Indian Journal of Criminology and Criminalistics (January–June 1995 Edn) has,
"categorised eve-teasing into five heads, viz., (1) verbal eve-teasing; (2) physical eve-",
teasing; (3) psychological harassment; (4) sexual harassment; and (5) harassment,
"through some objects. In Vishaka v State of Rajasthan,1045. the Supreme Court has laid",
"down certain guidelines on sexual harassments. In Rupan Deol Bajaj v KPS Gill,1046. the",
Supreme Court has explained the meaning of 'modesty' in relation to women.1047.,
Supreme Court Guidelines on Eve-teasing,
"Before undertaking suitable legislation to curb eve-teasing, it is necessary to take at",
least some urgent measures so that it can be curtailed to some extent. In public,
"interest, we are therefore inclined to give the following directions:",
1. All the State Governments and Union Territories are directed to depute plain,
"clothed female police officers in the precincts of bus-stands and stops, railway",
"stations, metro stations, cinema theatres, shopping malls, parks, beaches, public",
"service vehicles, places of worship, etc., so as to monitor and supervise incidents",
of eve-teasing.,
2. There will be a further direction to the State Government and Union Territories to,
install CCTV in strategic positions which itself would be a deterrent and if,
"detected, the offender could be caught.",
"3. Persons in-charge of the educational institutions, places of worship, cinema",
"theatres, railway stations, bus-stands have to take steps as they deem fit to",
"prevent eve-teasing, within their precincts and, on a complaint being made, they",
must pass on the information to the nearest police station or the Women's Help,
Centre.,
4. Where any incident of eve-teasing is committed in a public service vehicle either,
"by the passengers or the persons in charge of the vehicle, the crew of such",
"vehicle shall, on a complaint made by the aggrieved person, take such vehicle to",
the nearest police station and give information to the police. Failure to do so,
should lead to cancellation of the permit to ply.,
5. State Governments and Union Territories are directed to establish Women',
"Helpline in various cities and towns, so as to curb eve-teasing within three",
months.,
6. Suitable boards cautioning such act of eve-teasing be exhibited in all public,
"places including precincts of educational institutions, bus stands, railway",
"stations, cinema theatres, parties, beaches, public service vehicles, places of",
"worship, etc.",
"7. Responsibility is also on the passers-by and on noticing such incident, they",
should also report the same to the nearest police station or to Women Helpline to,
save the victims from such crimes.,
8. The State Governments and Union Territories of India would take adequate and,
effective measures by issuing suitable instructions to the concerned authorities,
including the District Collectors and the District Superintendent of Police so as to,
take effective and proper measures to curb such incidents of eve-teasing.,
[Deputy Inspector General of Police v S Samuthiram.1048.],
"1044. Ins. by the Criminal Law (Amendment) Act, 2013 (13 of 2013), section 7 (w.e.f. 3 February",
2013),
"1045. Vishaka v State of Rajasthan, (1977) 6 SCC 241 .",
"1046. Rupan Deol Bajaj v KPS Gill, (1995) 6 SCC 194 [LNIND 1995 SC 981] .",
"1047. Deputy Inspector General of Police v S Samuthiram, (2013) 1 SCC 598 [LNIND 2012 SC",
755] : AIR 2013 SC 14 [LNIND 2012 SC 755] . See the Box with 'Supreme Court Guidelines on Eve-,
teasing'.,
"1048. Deputy Inspector General of Police v S Samuthiram, (2013) 1 SCC 598 [LNIND 2012 SC",
755] : AIR 2013 SC 14 [LNIND 2012 SC 755],
THE INDIAN PENAL CODE,
CHAPTER XVI OF OFFENCES AFFECTING THE HUMAN BODY OF,
OFFENCES AFFECTING LIFE,
Of Criminal Force and Assault,
"[s 355] Assault or criminal force with intent to dishonour person, otherwise",
than on grave provocation.,
"Whoever assaults or uses criminal force to any person, intending thereby to dishonour",
"that person, otherwise than on grave and sudden provocation given by that person,",
shall be punished with imprisonment of either description for a term which may,
"extend to two years, or with fine, or with both.",
State Amendment,
"Andhra Pradesh.—The offence under section 55 is non-cognizable, bailable and triable by",
any Magistrate vide A.P. Act No. 3 of 1992 section 2 (w.e.f. 15-2-1992).,
COMMENT.—,
The intention to dishonour may be supposed to exist when the assault or criminal force,
is by means of gross insults. An accused person while under trial struck a Sub-,
Inspector of Police who was in the witness-box giving evidence against him. It was held,
that he was guilty of this offence.1049.,
"1049. Altaf Mian, (1907) 27 AWN 186.",
THE INDIAN PENAL CODE,
CHAPTER XVI OF OFFENCES AFFECTING THE HUMAN BODY OF,
OFFENCES AFFECTING LIFE,
Of Criminal Force and Assault,
[s 356] Assault or criminal force in attempt to commit theft of property carried,
by a person.,
"Whoever assaults or uses criminal force to any person, in attempting to commit theft",
"on any property which that person is then wearing or carrying, shall be punished with",
"imprisonment of either description for a term which may extend to two years, or with",
"fine, or with both.",
THE INDIAN PENAL CODE,
CHAPTER XVI OF OFFENCES AFFECTING THE HUMAN BODY OF,
OFFENCES AFFECTING LIFE,
Of Criminal Force and Assault,
[s 357] Assault or criminal force in attempt wrongfully to confine a person.,
"Whoever assaults or uses criminal force to any person, in attempting wrongfully to",
"confine that person, shall be punished with imprisonment of either description for a",
"term which may extend to one year, or with fine which may extend to one thousand",
"rupees, or with both.",
THE INDIAN PENAL CODE,
CHAPTER XVI OF OFFENCES AFFECTING THE HUMAN BODY OF,
OFFENCES AFFECTING LIFE,
Of Criminal Force and Assault,
[s 358] Assault or criminal force on grave provocation.,
Whoever assaults or uses criminal force to any person on grave and sudden,
"provocation given by that person, shall be punished with simple imprisonment for a",
"term which may extend to one month, or with fine which may extend to two hundred",
"rupees, or with both.",
Explanation.—The last section is subject to the same Explanation as section 352.,
COMMENT.—,
This section provides for mild punishment if the assault or criminal force is the result,
of grave and sudden provocation.,
"The word ""last"" in the Explanation is inaccurate. Instead of the words ""the last"" the word",
"""this"" only should have been used.",
THE INDIAN PENAL CODE,
CHAPTER XVI OF OFFENCES AFFECTING THE HUMAN BODY OF,
OFFENCES AFFECTING LIFE,
"Of Kidnapping, Abduction, Slavery and Forced Labour",
[s 359] Kidnapping.,
"Kidnapping is of two kinds: kidnapping from 1050.[India], and kidnapping from lawful",
guardianship.,
COMMENT.—,
The literal meaning of 'kidnapping' is child stealing.,
Kidnapping is of two kinds. But there may be cases in which the two kinds overlap each,
"other. For instance, a minor may be kidnapped from India as well as lawful",
guardianship. A bare perusal of the provisions clearly shows that the legislature did not,
confine to constitute the offence only if a minor girl is taken away from the place where,
"she used to reside but the emphasis is upon taking away the girl from the ""lawful",
"guardianship"". Sections 359 and 361, IPC, 1860 do not spell-out any territorial",
jurisdiction for committing the offence. In my view the rigour of the law travels with the,
ward/subject and any person involving himself or herself in the offence of kidnapping,
or procuring a minor girl at any point of time would also come within the purview of,
"sections 359 and 361, IPC, 1860.1051.",
"1050. The words ""British India"" have successively been subs. by the A.O. 1948, the A.O. 1950",
"and Act 3 of 1951, section 3 and Sch (w.e.f. 1-4-1951), to read as above.",
"1051. Taru Das v State of Tripura, 2008 Cr LJ 3143 (Gau).",
THE INDIAN PENAL CODE,
CHAPTER XVI OF OFFENCES AFFECTING THE HUMAN BODY OF,
OFFENCES AFFECTING LIFE,
"Of Kidnapping, Abduction, Slavery and Forced Labour",
[s 360] Kidnapping from India.,
Whoever conveys any person beyond the limits of 1052.[India] without the consent of,
"that person, or of some person legally authorised to consent on behalf of that person,",
is said to kidnap that person from 1053.[India].,
COMMENT.—,
The offence under this section may be committed on a grown-up person or a minor by,
conveying him or her beyond the limits of India. If the person kidnapped is above 12,
years of age and has given consent to his or her being conveyed beyond the limits of,
"India, no offence is committed.1054. Now, the age limit for boys is 16 and for girls 18",
under Act XLII of 1949.,
[s 360.1] Ingredients.—,
This section requires two things:—,
(1) Conveying of any person beyond the limits of India.,
(2) Such conveying must be without the consent of that person.,
"1052. The words ""British India"" have successively been subs. by the A.O. 1948, the A.O. 1950",
"and Act 3 of 1951, sec. 3 and Sch. (w.e.f. 1 April 1951), to read as above.",
"1053. The words ""British India"" have successively been subs. by the A.O. 1948, the A.O. 1950",
"and Act 3 of 1951, sec. 3 and Sch. (w.e.f. 1 April 1951), to read as above.",
"1054. Haribhai v State, (1918) 20 Bom LR 372 : 42 Bom 391.",
THE INDIAN PENAL CODE,
CHAPTER XVI OF OFFENCES AFFECTING THE HUMAN BODY OF,
OFFENCES AFFECTING LIFE,
"Of Kidnapping, Abduction, Slavery and Forced Labour",
[s 361] Kidnapping from lawful guardianship.,
"Whoever takes or entices any minor under 1055.[sixteen] years of age if a male, or",
"under 1056.[eighteen] years of age if a female, or any person of unsound mind, out of",
"the keeping of the lawful guardian of such minor or person of unsound mind, without",
"the consent of such guardian, is said to kidnap such minor or person from lawful",
guardianship.,
"Explanation.—The words ""lawful guardian"" in this section include any person lawfully",
entrusted with the care or custody of such minor or other person.,
Exception.—This section does not extend to the act of any person who in good faith,
"believes himself to be the father of an illegitimate child, or who in good faith believes",
"himself to be entitled to the lawful custody of such child, unless such act is",
committed for an immoral or unlawful purpose.,
State Amendment,
"Manipur.—The following amendments were made by Act No. 80 of 1950, s. 3(2) (w.e.f.",
"16-4-1950) read with Act 81 of 1971, s. 3 (w.e.f. 25-1-1972).",
"In its application to the State of Manipur, in Section 361 for the word ""eighteen""",
"substituted the word ""fifteen"".",
COMMENT.—,
The offence under this section may be committed in respect of either a minor or a,
"person of unsound mind. To kidnap a grown-up person of sound mind, therefore, would",
not amount to an offence under it.,
[s 361.1] Object.—,
The object of this section is at least as much to protect children of tender age from,
"being abducted or seduced for improper purposes, as for the protection of the rights of",
parents and guardians having the lawful charge or custody of minors or insane,
persons.,
[s 361.2] Ingredients.—,
This section has four essentials1057..—,
(1) Taking or enticing away a minor or a person of unsound mind.,
"(2) Such minor must be under 16 years of age, if a male, or under 18 years of age, if",
a female.,
(3) The taking or enticing must be out of the keeping of the lawful guardian of such,
minor or person of unsound mind.,
(4) Such taking or enticing must be without the consent of such guardian.,
[s 361.3] 'Takes or entices any minor'.—,
The Supreme Court considered the interpretation of expression 'takes or entices' in S,
"Varadarajan v State of Madras,1058. and State of Haryana v Rajaram.1059. The purpose",
"and object of section 361 IPC, 1860 appears to be in dispute. In Varadarajan, the",
"Supreme Court had occasion to consider this. In section 498 IPC, 1860 we find",
identical expression 'takes or entices' employed by the legislature. That was of course,
"for a totally different offence. While considering the object of section 361 IPC, 1860,",
"the Supreme Court in Varadarajan, took the view that the interpretation of the",
"expression 'takes or entices' in section 498 IPC, 1860 cannot be blindly and",
mechanically imported while considering the interpretation of the same expression in,
"section 361 IPC, 1860. It took the view that section 498 IPC, 1860 is meant essentially",
"for protection of the rights of the husband, whereas section 361 IPC, 1860 and other",
"cognate sections of the IPC, 1860 are intended more for the protection of minors and",
persons of unsound mind than the rights of the guardians of such persons. But in,
"Rajaram, the Supreme Court held that:",
The object of this section seems as much to protect the minor children from being seduced,
for improper purposes as to protect the rights and privileges of guardians having the lawful,
charge or custody of their minor wards. The gravamen of this offence lies in the taking or,
"enticing of a minor under the ages specified in this section, out of the keeping of the lawful",
guardian without the consent of such guardian. The words 'takes or entices any minor … out,
"of the keeping of the lawful guardian of such minor' in S. 361, are significant. The use of the",
"word 'keeping' in the context connotes the idea of charge, protection, maintenance and",
control: further the guardian's charge and control appears to be compatible with the,
"independence of action and movement in the minor, the guardian's protection and control of",
"the minor being available, whenever necessity arises. On plain reading of this section the",
consent of the minor who is taken or enticed is wholly immaterial: it is only the guardian's,
consent which takes the case out of its purview. Nor is it necessary that the taking or,
enticing must be shown to have been by means of force or fraud. Persuasion by the,
accused person which creates willingness on the part of the minor to be taken out of the,
keeping of the lawful guardian would be sufficient to attract the section.,
A person who allows such a minor who is already out of the keeping of the guardian to,
"accompany him commits no offence under section 361 IPC, 1860. That alone is the",
dictum in Varadarajan. It is no authority on the question whether consent of a minor,
(even a knowledgeable minor close to 18 years) is relevant or crucial in a prosecution,
"under section 361 IPC, 1860. Later a two-Judge Bench in T D Vadgama v State of",
"Gujarat,1060. ascertained the precise distinction in the dictum between the three-Judge",
Benches in Varadarajan and Rajaram. The dictum in Varadarajan turned on its own,
peculiar facts. It was held:,
"it would, however, be sufficient if the prosecution establishes that though immediately prior",
"to the minor leaving the father's protection no active part was played by the accused, he had",
"at some earlier stage solicited or persuaded the minor to do so. In our opinion, if evidence to",
"establish one of those things is lacking, it would not be legitimate to infer that the accused",
is guilty of taking the minor out of the keeping of the lawful guardian merely because after,
"she has actually left her guardian's house or a house where her guardian had kept her, joined",
the accused and the accused helped her in her design not to return to her guardian's house,
"by taking her along with him from place to place. No doubt, the part played by the accused",
"could be regarded as facilitating the fulfilment of the intention of the girl. That part, in our",
"opinion, falls short of an inducement to the minor to slip out of the keeping of her lawful",
"guardian and is, therefore, not tantamount to 'taking'.",
The intention with which kidnapping is effected can be ascertained from the,
circumstances of the offence at the time of occurrence or prior or subsequent to it. A,
kidnapping does not per se lead to any inference of intent or purpose of,
kidnapping.1061. Persuasion by the accused which created willingness on the part of,
the minor to be taken out of the keeping of the lawful guardian was held by the,
Supreme Court to be enough to attract section 361. The Supreme Court also restated,
the ingredients.1062.,
Promise of marriage made to the minor girl for leaving the house of the lawful guardian,
was held to be an enticement.1063.,
The word 'take' means 'to cause to go' to escort or to get into possession. It implies,
want of wish and absence of desire of the person taken. There is a distinction between,
taking and allowing a minor to accompany a person.1064.,
[s 361.4] When 'taking' is complete.—,
The offence of kidnapping from lawful guardianship is complete when the minor is,
actually taken from lawful guardianship; it is not an offence continuing so long as the,
minor is kept out of such guardianship. In determining whether a person takes a minor,
"out of the lawful keeping of its guardian, the distance to which the minor is taken away",
is immaterial.1065.,
[s 361.5] 'Enticing',
is an act of the accused by which the person kidnapped is induced of his own accord to,
go to the kidnapper. The word 'entice' involves an idea of inducement or allurement by,
exciting hope or desire in the other. It may take many forms difficult to visualise. It is,
not necessary that 'taking' or 'enticing' should be by means of force or fraud. The word,
'entice' involves the idea of inducement or allurement.1066.,
"[s 361.6] 'Under sixteen years of age if a male, or under eighteen years of age,",
if a female'.—,
In the case of a boy the age limit is fixed at 16 years; in the case of a girl at 18 by Act,
XLII of 1949. Before this amendment the age limit was 14 and 16 respectively. Where a,
"girl under that age is kidnapped, it is no defence that the accused did not know the girl",
"to be under that age, or that from her appearance he might have thought that she was",
"of a greater age.1067. Anyone dealing with such a girl does so at his peril, and if she",
"turns out to be under 18 he must take the consequences,1068. even though he bona fide",
believed and had reasonable ground for believing that she was over eighteen.1069.,
[s 361.7] 'Any person of unsound mind'.—,
If the person kidnapped is normally of sound mind but is made unconscious from,
"poisoning, such a person cannot be said to be of unsound mind. For example, a person",
under an anaesthetic for an operation can hardly be said to be of unsound mind. Where,
a girl aged 20 years had been made unconscious from dhatura poisoning when she,
"was taken away, it was held that she could not be said to be a person of unsound mind,",
and the person taking her away could not be guilty of kidnapping.1070.,
[s 361.8] 'Out of the keeping of the lawful guardian'.—,
The Legislature has advisedly preferred the expression 'the keeping of the lawful,
guardian' to the word 'possession'. The word 'keeping' is compatible with the,
independence of action and movement in the object kept.1071.,
Persuasion by the accused is sufficient to constitute 'taking' within the meaning of this,
section. Consent of the minor is wholly immaterial. It is only the guardian's consent that,
takes the case out of the purview of this section.1072.,
"In Vipin Menon v State of Karnataka,1073. it was held that the father, in the absence of",
"divestment of right of guardianship, cannot be guilty of kidnapping his minor child.",
[s 361.9] Explanation.—'Lawful guardian'.—,
The Explanation is intended to extend the protection given to parents to any person,
lawfully entrusted with the care or custody of the minor.1074.,
Where the order in favour of the mother was passed by the lower Court but it was,
"stayed by the High Court, it was held that the father who had custody of the minor child",
would continue to be in lawful custody until further orders. The Supreme Court clarified,
"that the law in India is to be governed by the provisions of IPC, 1860 and not the US",
"International Parental Kidnapping Crime Act, 1993.1075.",
[s 361.10] 'Entrustment'.—,
"Entrustment, which this section requires, may be inferred from a well-defined and",
consistent course of conduct governing the relations of the minor and the person,
alleged to be the lawful guardian.1076.,
"1055. Subs. by Act 42 of 1949, sec. 2, for ""fourteen"".",
"1056. Subs. by Act 42 of 1949, sec. 2, for ""sixteen"".",
"1057. Restated in Biswanath Mallick v State of Orissa, 1995 Cr LJ 1416 (Ori).",
"1058. S Varadarajan v State of Madras, AIR 1965 SC 942 [LNIND 1964 SC 223] : 1965 (2) Cr LJ",
33 .,
"1059. State of Haryana v Rajaram, AIR 1973 SC 819 [LNIND 1972 SC 508] : 1973 (1) SCC 544",
[LNIND 1972 SC 508] : 1973 Cr LJ 651 .,
"1060. T D Vadgama v State of Gujarat, AIR 1973 SC 2313 [LNIND 1973 SC 187] : 1973 (2) SCC",
413 [LNIND 1973 SC 187] .,
"1061. Badshah v State of UP, (2008) 3 SCC 681 [LNIND 2008 SC 310] : 2008 Cr LJ 1950 : (2008)",
3 All LJ 524.,
"1062. Prakash v State of Haryana, (2004) 1 SCC 339 [LNIND 2003 SC 1045] : AIR 2004 SC 227",
[LNIND 2003 SC 1045] : 2004 Cr LJ 595 .,
"1063. Moniram Hazarika v State of Assam, (2004) 5 SCC 120 [LNIND 2004 SC 476] : AIR 2004",
SC 2472 [LNIND 2004 SC 476] : 2004 Cr LJ 2553 .,
"1064. Biswanath Mallick v State of Orissa, 1995 Cr LJ 1416 (Ori).",
"1065. Chhajju Ram, AIR 1968 P&H 439 .",
"1066. Biswanath Mallick v State of Orissa, 1995 Cr LJ 1416 (Ori).",
"1067. Robins, (1844) 1 C&K 456; Krishna Maharana, (1929) 9 Pat 647. Biswanath Mallick v State",
"of Orissa, 1995 Cr LJ 1416 (Ori).",
"1068. Christian Olifier, (1866) 10 Cox 402.",
"1069. Prince, (1875) LR 2 CC R 154; Krishna Maharana, sup. Where the prosecution produced the",
school leaving certificate for proof of age and not the horoscope though available and two,
"doctors testified on behalf of the accused that the girl was major, the accused acquitted under",
"benefit of doubt, Pravakar v Ajaya Kumar Das, 1996 Cr LJ 2626 (Ori). Vishnu v State of",
"Maharashtra, 1997 Cr LJ 1724 (Bom), evidence of mother of prosecutrix and that of her school",
head master showed her to be below 16. This was also corroborated by medical evidence. This,
fact was not challenged by the defence. Finding as to her age as below 16 was held to be,
"proper. Mohan v State of Rajasthan, 2003 Cr LJ 1891 (Raj), failure of the prosecution to prove",
"that the prosecutrix was under 18 years of age at the relevant time, offence under the section",
not made out.,
"1070. Din Mohammad, 1939 20 Lah 517.",
"1071. Lakshmidhar Misra, (1956) Cut 546. Biswanath Mallick v State of Orissa, (1995) 2 Cr LJ",
"1416 (Ori), kidnapping from custody of guardian without the intention of forced marriage,",
"offence under section 361, not under section 366.",
"1072. State of Haryana v Raja Ram, 1973 Cr LJ 651 (SC); See also Rasool v State, 1976 Cr LJ 363",
(All).,
"1073. Vipin Menon v State of Karnataka, 1992 Cr LJ 3737 (Kant).",
"1074. Jagannadha Rao v Kamaraju, (1900) 24 Mad 284, 291; Baz v State, (1922) 3 Lah 213. A girl",
living in a rented room for the purpose of an examination where her father visited her once is in,
"the custody of the guardian. Bhagban Panigrahi v State of Orissa, 1989 Cr LJ (NOC) 103 (Ori).",
"1075. Bhavesh Jayanti Lakhani v State of Maharashtra, (2009) 9 SCC 551 [LNIND 2009 SC 1646]",
.,
"1076. Nageshwar, AIR 1962 Pat 121 .",
THE INDIAN PENAL CODE,
CHAPTER XVI OF OFFENCES AFFECTING THE HUMAN BODY OF,
OFFENCES AFFECTING LIFE,
"Of Kidnapping, Abduction, Slavery and Forced Labour",
[s 362] Abduction.,
"Whoever by force compels, or by any deceitful means induces, any person to go from",
"any place, is said to abduct that person.",
COMMENT.—,
"This section merely gives a definition of the word ""abduction"" which occurs in some of",
the penal provisions which follow. There is no such offence as abduction under the,
"Code, but abduction with certain intent is an offence. Force or fraud is essential.",
[s 362.1] Ingredients.—,
The section requires two things:—,
(1) Forceful compulsion or inducement by deceitful means.1077.,
(2) The object of such compulsion or inducement must be the going of a person,
from any place.,
"""The expression ""deceitful means"" includes a misleading statement. It is, really",
"speaking, a matter of intention. The intention of the accused is the basis and gravamen",
"of the charge. The volition, the intention and conduct of the woman do not determine",
the offence.1078. The offence of abduction under section 362 of the Code involves use,
of force or deceit to compel or induce any person to go from any place.1079.,
[s 362.2] Abduction and kidnapping.—,
"(1) 'Kidnapping' is committed only in respect of a minor under 16 years of age if a male,",
"and under 18 years if a female or a person of unsound mind; 'abduction', in respect of a",
person of any age.,
"(2) In 'kidnapping', the person kidnapped is removed out of lawful guardianship. A child",
without a guardian cannot be kidnapped. 'Abduction' has reference exclusively to the,
person abducted.,
"(3) In 'kidnapping', the minor is simply taken away. The means used may be innocent. In",
"'abduction', force, compulsion, or deceitful means are used.",
"(4) In kidnapping, consent of the person taken or enticed is immaterial; in abduction,",
"consent of the person moved, if freely and voluntarily given, condones abduction.",
"(5) In kidnapping, the intent of the offender is a wholly irrelevant consideration: in",
"abduction, it is the all-important factor.",
(6) Kidnapping from guardianship is a substantive offence under the Code; but,
"abduction is an auxiliary act, not punishable by itself, but made criminal only when it is",
"done with one or other of the intents specified in section 364, et seq.1080.",
"1077. Suresh Babu v State of Kerala, 2001 Cr LJ 1483 (Ker), where a girl of about 16 years old",
was in love with the accused and the evidence showed that she left her home on her own,
accord and joined the accused for getting their marriage registered and lived as husband and,
wife thereafter. Conviction of the accused was set aside because it could not be said that he,
"kidnapped her. Ram Chandra Singh v Nabrang Rai Burma, 1998 Cr LJ 2156 (Ori), on the same",
point.,
"1078. A Pasayat, J in Rabinarayan Das v State of Orissa, 1992 Cr LJ 269 , 273 (Ori), citing Re",
"Khalandar Sahab, AIR 1955 SC 39 , Edn (Sic) ""or AIR 1955 59 (AP)"".",
"1079. Subhash Krishnan v State of Goa, (2012) 8 SCC 365 [LNIND 2012 SC 480] : AIR 2012 SC",
3003 [LNIND 2012 SC 480] .,
"1080. Restated in Biswanath Mallick v State of Orissa, 1995 Cr LJ 1416 (Ori).",
THE INDIAN PENAL CODE,
CHAPTER XVI OF OFFENCES AFFECTING THE HUMAN BODY OF,
OFFENCES AFFECTING LIFE,
"Of Kidnapping, Abduction, Slavery and Forced Labour",
[s 363] Punishment for kidnapping.,
"Whoever kidnaps any person from 1081.[India] or from lawful guardianship, shall be",
punished with imprisonment of either description for a term which may extend to,
"seven years, and shall also be liable to fine.",
State Amendment,
"Uttar Pradesh.—The offence u/s. 363 IPC is non-bailable, vide U.P. Act, No. 1 of 1984.",
COMMENT.—,
This section must be read with section 361. The offence of kidnapping from lawful,
guardianship penalised by this section is the offence which is defined by section 361.,
"The person against whom the offence is committed must be under the age of sixteen,",
"if a male, and under the age of eighteen, if a female.1082.",
[s 363.1] Tribal Custom.—,
Where a married girl of 17 years of age was forcibly carried away by the accused and,
his companions from a jungle where she had gone with others to collet mohua flowers,
"with a view to marrying her according to their tribal custom, it was held that such a",
"custom, if any, could apply only to the cases of young unmarried men and women and",
had no application to legalise the kidnapping of a married minor girl out of the keeping,
of her lawful guardian.1083.,
"[s 363.2] Section 363 IPC is not a minor offence of Section 376 IPC, 1860.—",
"Offence of kidnapping under section 363 IPC, 1860 and of rape under section 376 IPC,",
"1860 cannot be held to be cognate offences. Therefore, accused cannot be convicted",
for offence of kidnapping in absence of charge framed against him for the said,
offence.1084.,
[s 363.3] Extradition offence.—,
"Offence under section 363 of the IPC, 1860 is an extraditable offence, provided it is not",
a pure matrimonial dispute.1085.,
"1081. The words ""British India"" have successively been subs. by the A.O. 1948, the A.O. 1950",
"and Act 3 of 1951, sec. 3 and Sch. (w.e.f. 1 April 1951), to read as above.",
"1082. Ismail Sayadsaheb, (1933) 35 Bom LR 886 : 57 Bom 537 FB. Anandham v State of TN,",
"(1995) 1 Cr LJ 632 (Mad), here the accused was acquitted under section 376 (rape) and section",
"366 (kidnapping for marriage), he was convicted under this section for simple kidnapping. Omi v",
"State of UP, 1994 Cr LJ 155 (All), acquittal from charges of kidnapping and rape, story of the",
"victim not reliable, medical evidence also not proving rape. Kuldeep K Mahato v State of Bihar,",
"AIR 1998 SC 2694 [LNIND 1998 SC 714] : 1998 Cr LJ 1597 (Raj), the prosecutrix was below 18",
years of age. She was taken away by the accused person to a particular place by means of a,
tempo. The court said that the offence of kidnapping from lawful guardianship was made out.,
"But ingredients of the offence of rape not proved. Hence, no conviction for rape. Bagula Naik v",
"State of Orissa, 1999 Cr LJ 2077 (Ori), a girl left home of her own, met by chance a person on the",
road who took her to his home and detained her for several days. The version given by the girl,
was truthful. The fact that there was no mens rea and he appeared before the police along with,
the girl was not sufficient to prove his innocence. His conviction was maintained. Sumitra Bai v,
"State of MP, 1999 Cr LJ 2541 (MP), taken away by one person and deposited in the house of",
"another, both liable. Mahesh Kumar v State of Rajasthan, 1998 Cr LJ 597 (Raj), gang rape after",
"kidnapping, both accused helped each other in the satisfaction of their lust, either liable for act",
"of the other. Akeel v State of MP, 1998 Cr LJ 4530 (MP) consenting party to sex, accused not",
"liable for rape, but she being below 18 years, he was guilty of kidnapping. Jitmohan Lohar v State",
"of Orissa, 1997 Cr LJ 2842 (Ori), the girl of consenting age going away voluntarily, conviction for",
kidnapping not proper.,
"1083. Dutta Pradhan, 1985 Cr LJ 1842 (Ori). See also Tannu Lal v State of UP, 1981 SCC (Cr) 675",
": 1981 Supp SCC 47 , conviction of the main accused along with his two companions who either",
"stood by or helped him. Prem Chand v State, 1987 Cr LJ 910 (Del) no proof of allegations.",
"1084. F Nataraja v State, 2010 Cr LJ 2180 (Kar).",
"1085. Bhavesh Jayanti Lakhani v State of Maharashtra, (2009) 9 SCC 551 [LNIND 2009 SC 1646]",
: (2010) 1 SCC (Cr) 47.,
THE INDIAN PENAL CODE,
CHAPTER XVI OF OFFENCES AFFECTING THE HUMAN BODY OF,
OFFENCES AFFECTING LIFE,
"Of Kidnapping, Abduction, Slavery and Forced Labour",
[s 1086.[363A] Kidnapping or maiming a minor for purposes of begging.,
"(1) Whoever kidnaps any minor or, not being the lawful guardian of a minor,",
"obtains the custody of the minor, in order that such minor may be employed or",
used for the purpose of begging shall be punishable with imprisonment of,
"either description for a term which may extend to ten years, and shall also be",
liable to fine.,
(2) Whoever maims any minor in order that such minor may be employed or used,
"for the purposes of begging shall be punishable with imprisonment for life, and",
shall also be liable to fine.,
"(3) Where any person, not being the lawful guardian of a minor, employs or uses",
"such minor for the purposes of begging, it shall be presumed, unless the",
"contrary is proved, that he kidnapped or otherwise obtained the custody of that",
minor in order that the minor might be employed or used for the purpose of,
begging.,
"(4) In this section,—",
(a) 'begging' means—,
"(i) soliciting or receiving alms in a public place, whether under the",
"pretence of singing, dancing, fortune-telling, performing tricks or",
selling articles or otherwise;,
(ii) entering on any private premises for the purpose of soliciting or,
receiving alms;,
"(iii) exposing or exhibiting, with the object of obtaining or extorting",
"alms, any sore, wound, injury, deformity or disease, whether of",
himself or of any other person or of an animal;,
(iv) using a minor as an exhibit for the purpose of soliciting or,
receiving alms;,
"(b) ""minor"" means—",
"(i) in the case of a male, a person under sixteen years of age; and",
"(ii) in the case of a female, a person under eighteen years of age.]",
COMMENT.—,
This section was inserted by Act LII of 1959. In the Statement of Objects and Reasons,
it is stated:,
"To put down effectively the evil of kidnapping of children for exploiting them for begging, the",
provisions existing in the Indian Penal Code are not quite adequate. There is also no special,
provision for deterrent punishment for the greater evil of maiming of children so as to make,
them objects of pity.,
"This section makes kidnapping or obtaining custody of a minor, and the maiming of a",
"minor for employing him for begging, specific offences and provides for deterrent",
punishment.,
"1086. Ins. by Act 52 of 1959, section 2 (w.e.f. 15 January 1960).",
THE INDIAN PENAL CODE,
CHAPTER XVI OF OFFENCES AFFECTING THE HUMAN BODY OF,
OFFENCES AFFECTING LIFE,
"Of Kidnapping, Abduction, Slavery and Forced Labour",
[s 364] Kidnapping or abducting in order to murder.,
Whoever kidnaps or abducts any person in order that such person may be murdered,
"or may be so disposed of as to be put in danger of being murdered, shall be punished",
with 1087.[imprisonment for life] or rigorous imprisonment for a term which may,
"extend to ten years, and shall also be liable to fine.",
ILLUSTRATIONS,
"(a) A kidnaps Z from 1088.[India], intending or knowing it to be likely that Z may be",
sacrificed to an idol. A has committed the offence defined in this section.,
(b) A forcibly carries or entices B away from his home in order that B may be,
murdered. A has committed the offence defined in this section.,
COMMENT.—,
To establish an offence under this section it must be proved that the person charged,
with the offence had the intention at the time of the kidnapping or abduction that the,
person kidnapped or abducted will be murdered or so disposed of as to be put in,
danger of being murdered.1089. The Supreme Court stated the ingredients to be: (1),
kidnapping by the accused must be proved; (2) it must also be proved that the person,
"in question was kidnapped in order, (a) that he may be murdered, or (b) that he might",
be disposed of in such manner as to be put in danger of being murdered.1090.,
When it was not proved that kidnapping was with intention to commit murder of victim,
"boy, it was held that conviction of appellant under section 363 of IPC, 1860 is proper",
"though charge against accused was framed under section 364 IPC, 1860.1091.",
[s 364.1] Presumption of killing by abductors.—,
"An abducted victim was murdered later on. It was held that the Court can, depending",
"on the factual situation, draw the presumption that the abductors are responsible for",
the murder. It is their responsibility to explain to the Court what they had done with the,
victim.1092. The facts of the case showed that the parties were inimically disposed,
against each other. The presence of the accused at the place of occurrence was also,
established. They picked up the person and bodily lifted him away. They fired in the air,
to ward off resistance. The abducted person was not seen or heard of since 27 years.,
"Section 108 of the Indian Evidence Act, 1872 applied to create presumption of death. In",
"the face of such death, whether actual or presumptive, the inference of murder by",
abductors arises. The Court said that it would not be necessary to prove corpus delicit.,
The offence under the section was made out.1093. Where abduction of the victim was,
"proved and the victim was found murdered soon after abduction, the Supreme Court",
said that it was for the accused to satisfy the Court as to how the abducted victim was,
"dealt with. In the absence of any such explanation, the Court may draw the",
presumption that the abductor was murderer also.1094.,
"1087. Subs. by Act 26 of 1955, sec. 117 and Sch., for ""transportation for life"" (w.e.f. 1-1-1956).",
"1088. The words ""British India"" have successively been subs. by the A.O. 1948, the A.O. 1950",
"and Act 3 of 1951, section 3 and Sch. (w.e.f. 1 April 1951), to read as above.",
"1089. Tondi v State, 1975 Cr LJ 950 (All) : AIR 1940 Cal 561 followed; Sardar Hussain v State of",
"UP, 1988 Cr LJ 1807 : AIR 1988 SC 1766 [LNIND 1988 SC 366] : 1988 Supp SCC 623 . State of",
"MP v Mahesh Mohan Lal Mali, 1990 Cr LJ 2483 , of the two accused, evidence that child",
kidnapped and killed was last seen with one of them and this fact along with his extra-judicial,
"confession, was sufficient for conviction, but the bare confession of the other accused not",
"sufficient. State of MP v Amar Singh, AIR 1994 SC 650 : 1994 Cr LJ 619 , witnesses not",
"implicating the accused of abduction or murder, evidence not sufficient to prove the guilt of the",
"accused, acquittal affirmed. Pankaj Naik v State of Orissa, 1994 Cr LJ 829 (Ori), kidnapped child",
"deposing the story, admits tutoring, his evidence not trustworthy, medical evidence",
"contradictory, conviction not sustainable. Arumugham v State of TN, 1994 Cr LJ 520 (Mad),",
where the accused was prosecuted for abducting a girl and killing her and the extra-judicial,
confession of the accused and the alleged cause of death by throttling were not proved by the,
"oral and medical evidence, it was held that accused was entitled to acquittal.",
"1090. Badshah v State of UP, (2008) 3 SCC 681 [LNIND 2008 SC 310] : 2008 Cr LJ 1950 : (2008)",
3 All LJ 524.,
"1091. Vinod Hembrum v State of Jharkhand, 2011 Cr LJ 2763 (Jha).",
"1092. Sucha Singh v State of Punjab, 2001 Cr LJ 1734 (SC). Kalpana Mazumdar v State of Orissa,",
"2002 Cr LJ 3756 (SC), accused was seen throwing the dead body of the abducted person into",
water; he was not able to explain how the dead body came into his possession. Presumption,
"against the abductor of the child of killing him. Murlidhar v State of Rajasthan, 2005 Cr LJ 2608 :",
"AIR 2005 SC 2345 [LNIND 2005 SC 486] : (2005) 11 SCC 133 [LNIND 2005 SC 486] , prosecution",
"proceeded on footing that there eyewitnesses to the fact of murder, hence section 106, Indian",
"Evidence Act, 1872 (burden on the abductor to show what happened to the abducted person)",
did not apply. Conviction under section 364 maintained but that under sections 302/34 set,
aside.,
"1093. Badshah v State of UP, (2008) 3 SCC 681 [LNIND 2008 SC 310] : (2008) 2 SCC (Cr) 712 :",
"2008 Cr LJ 1950 : (2008) 3 All LJ 524. Rangnath Sharma v Satendra Sharma, (2008) 12 SCC 259",
"[LNIND 2008 SC 1659] , another well-proved case of kidnapping and murder.",
"1094. State of MP v Lattora, (2003) 11 SCC 761 : 2004 SCC (Cr) 1195.",
THE INDIAN PENAL CODE,
CHAPTER XVI OF OFFENCES AFFECTING THE HUMAN BODY OF,
OFFENCES AFFECTING LIFE,
"Of Kidnapping, Abduction, Slavery and Forced Labour",
"1095.[s 364-A] Kidnapping for ransom, etc.",
Whoever kidnaps or abducts any person or keeps a person in detention after such,
"kidnapping or abduction and threatens to cause death or hurt to such person, or by his",
conduct gives rise to a reasonable apprehension that such person may be put to death,
"or hurt, or causes hurt or death to such person in order to compel the Government or",
1096.[any foreign State or international inter-governmental organisation or any other,
"person] to do or abstain from doing any act or to pay a ransom, shall be punishable",
"with death, or imprisonment for life, and shall also be liable to fine.]",
COMMENT.—,
"It is relevant to point out that section 364A had been introduced in the IPC, 1860 by",
virtue of Amendment Act 42 of 1993. The statement of objects and reasons are as,
follows:,
"Statement of Objects and Reasons. - Kidnappings by terrorists for ransom, for creating panic",
amongst the people and for securing release of arrested associates and cadres have assumed,
serious dimensions. The existing provisions of law have proved to be inadequate as,
deterrence. The Law Commission in its 42nd Report has also recommended a specific,
provision to deal with this menace. It [was] necessary to amend the Indian Penal Code to,
provide for deterrent punishment to persons committing such acts and to make consequential,
"amendments to the Code of Criminal Procedure, 1973.",
It is clear from the above the concern of Parliament in dealing with cases relating to,
"kidnapping for ransom, a crime which called for a deterrent punishment, irrespective of",
the fact that kidnapping had not resulted in death of the victim. Considering the,
"alarming rise in kidnapping young children for ransom, the legislature in its wisdom",
provided for stringent sentence.1097.,
[s 364-A.1]Ingredients.—,
"Before section 364-A is attracted and a person is convicted, the prosecution must",
prove the following ingredients:,
"(1) the accused must have kidnapped, abducted or detained any person;",
(2) he must have kept such person under custody or detention; and,
"(3) kidnapping, abduction or detention must have been for ransom. To pay a",
"ransom, in the ordinary sense means to pay the price or demand for ransom.",
This would show that the demand has to be communicated.1098.,
"The term ""ransom"" has not been defined in the Code. Stated simply, ""ransom"" is a sum",
"of money to be demanded to be paid for releasing a captive, prisoner or detenu.",
Kidnapping for ransom is an offence of unlawfully seizing a person and then confining,
"the person usually in a secret place, while attempting to extort ransom. This grave",
crime is sometimes made a capital offence. In addition to the abductor a person who,
acts as a go-between to collect the ransom is generally considered guilty of the,
crime.1099.,
"In a case, where a male child was kidnapped for ransom and murdered, the Supreme",
Court refused to interfere with the death penalty awarded by the Courts below. The,
Supreme Court held that the offence of kidnapping for ransom accompanied by a,
"threat to cause death contemplates punishment with death. Therefore, even without an",
"accused actually having murdered the individual kidnapped for ransom, the provision",
"contemplates the death penalty. Section 302 of the IPC, 1860 also contemplates the",
"punishment of death for the offence of murder. It is, therefore apparent, that the",
"accused was guilty of two heinous offences, which independently of one another,",
provide for the death penalty.1100.,
[s 364-A.2]Letters of demanding ransom.—,
Letter demanding ransom written by the accused. Plea of the accused that the letters,
were written under the pressure of the police was rejected as there was no cross-,
examination on this point.1101.,
[s 364-A.3]Provision not unconstitutional.—,
Given the background in which the law was enacted and the concern shown by the,
"Parliament for the safety and security of the citizens and the unity, sovereignty and",
"integrity of the country, the punishment prescribed for those committing any act",
contrary to section 364A cannot be dubbed as so outrageously disproportionate to the,
nature of the offence as to call for the same being declared unconstitutional.1102.,
[s 364-A.4]Sentencing.—,
The Supreme Court observed that keeping in mind the alarming rise in kidnapping of,
"young children for ransom, the legislature has in its wisdom provided stringent",
sentence. The Supreme Court said that the High Court rightly refused to interfere. The,
judgment of the High Court did not suffer from any infirmity to warrant interference.,
The sentence of life imprisonment was awarded and a fine of Rs. 1000 with default,
stipulation.1103.,
"Section 364A IPC, 1860 was not on the statute book at the time of commission of the",
"offence. Unfortunately, a charge under section 363 was also not framed by the Trial",
Court. It would not be appropriate to remand the case for framing fresh charge against,
the appellants after a lapse of more than 20 years. His conviction and sentence for the,
"offence punishable under section 384 read with section 34 IPC, 1860 was",
maintained.1104.,
[s 364-A.5]Continuing offence.—,
"If section 364A IPC, 1860 and section 472 Cr PC, 1973 are to be read together, it has to",
be held that even after the death of the victim every time a ransom call was made a,
fresh period of limitation commenced.1105.,
[s 364-A.6]Distinction between offences under section 364 and section 364-A.—,
The ingredients for the offence under sections 364 and 364-A are different. Whereas,
the intention to kidnap a person in order that he may be murdered or may be so,
disposed of as to be put in danger of being murdered satisfies the requirements of,
section 364; for obtaining conviction for the offence under section 364-A it is,
necessary to prove that not only such kidnapping or abetment has taken place but,
thereafter the accused threatened to cause death or hurt to such person or by his,
conduct gives rise to a reasonable apprehension that such person may be put to death,
or hurt or causes hurt or death to such person in order to compel the Government or,
any foreign State or international intergovernmental organisation or any other person to,
"do or abstain from doing any act or to pay a ransom. Thus, it was obligatory on the part",
of the trial court to frame a charge which would answer the description of the offence,
envisaged under section 364-A. It may be true that the kidnapping was done with a,
view to getting ransom but the same should have been put to the appellant while,
framing a charge. The prejudice to the appellant is apparent as the ingredients of a,
"higher offence had not been put to him while framing the charge. Hence, the appellant",
could not have been convicted under section 364-A. The appellant was held to be guilty,
of an offence under section 364. He deserved the highest punishment prescribed,
"therein, i.e., rigorous imprisonment for life.1106.",
"1095. Ins. by Act 42 of 1993, section 2, (w.e.f. 22 May 1993).",
"1096. Subs. by Act 24 of 1995, for ""any othr person"" (w.e.f. 26-5-1995).",
"1097. Akram Khan v State of WB, AIR 2012 SC 308 [LNIND 2011 SC 1205] : (2012) 1 SCC 406",
[LNIND 2011 SC 1205] .,
"1098. Malleshi v State of Karnataka, 2004 (8) SCC 95 [LNIND 2004 SC 934] : AIR 2004 SC 4865",
"[LNIND 2004 SC 934] ; Vinod v State of Haryana, AIR 2008 SC 1142 [LNIND 2008 SC 155] : 2008",
(2) SCC 246 [LNIND 2008 SC 155] .,
"1099. Suman Sood v State of Rajasthan, (2007) 5 SCC 634 [LNIND 2007 SC 647] : AIR 2007 SC",
"2774 [LNIND 2007 SC 647] : (2007) Cr LJ 4080 , it was proved in this case that one accused",
kidnapped a person for getting an arrested person released. His wife (second accused),
"remained at the secret place where the victim was kept, and provided him food and medicine.",
"This was held to be not sufficient to convict her under section 364-A, though found to be enough",
to sustain conviction under sections 365/120-B.,
"1100. Sunder @ Sundararajan v State, (2013) 3 SCC 215 [LNIND 2013 SC 91] : AIR 2013 SC 777",
"[LNIND 2013 SC 91] ; Vikram Singh v State of Punjab, 2010 (3) SCC 56 [LNIND 2010 SC 106] : AIR",
2010 SC 1007 [LNIND 2010 SC 106] .,
"1101. Vinod Kumar v State of Haryana, 2015 Cr LJ 1250 .",
"1102. Vikram Singh v UOI, 2015 Cr LJ 4500 .",
"1103. Vinod v State of Haryana, (2008) 2 SCC 246 [LNIND 2008 SC 155] : AIR 2008 SC 1142",
[LNIND 2008 SC 155] : 2008 Cr LJ 1811 : (2008) 105 Cut LT 559.,
"1104. Jaipal v State, 2011 Cr LJ 4444 (Del).",
"1105. Vikas Chaudhary v State of NCT of Delhi, AIR 2010 SC 3380 [LNIND 2010 SC 743] : (2010)",
3 SCC (Cr) 936.,
"1106. Anil v Admn of Daman & Diu, Daman, (2006) 13 SCC 36 [LNIND 2006 SC 1035] : (2008) 1",
SCC (Cr) 72.,
THE INDIAN PENAL CODE,
CHAPTER XVI OF OFFENCES AFFECTING THE HUMAN BODY OF,
OFFENCES AFFECTING LIFE,
"Of Kidnapping, Abduction, Slavery and Forced Labour",
[s 365] Kidnapping or abducting with intent secretly and wrongfully to confine,
person.,
Whoever kidnaps or abducts any person with intent to cause that person to be,
"secretly and wrongfully confined, shall be punished with imprisonment of either",
"description for a term which may extend to seven years, and shall also be liable to",
fine.,
COMMENT.—,
Where there was sufficient evidence to show that the victim woman was abducted,
from her house and then taken to different places which included confinement to one,
"place till she was recovered by the police, it was held that the accused could be",
convicted under this section and section 368 but not section 366.1107.,
"The prosecutrix had left her home voluntarily, of her own free will to get married to the",
"appellant. She was 19 years of age at the relevant time and was, hence, capable of",
understanding the complications and issues surrounding her marriage to the appellant.,
"According to the version of events provided by her, the prosecutrix had called the",
"appellant on a number given to her by him, to ask him why he had not met her at the",
place that had been pre-decided by them. Offence not made out.1108.,
"In the order of extradition section 364A mentioned and not section 365 IPC, 1860.",
"Offence under section 365 IPC, 1860 is lesser offence than the offence punishable",
"under section 364A IPC, 1860. Hence, protection of accused and trial for lesser offence",
"under section 365 IPC, 1860 cannot be held to be without authority of law.1109.",
"1107. Fiyaz Ahmed v State of Bihar, 1990 Cr LJ 2241 SC : AIR 1990 SC 2147 .",
"1108. Deepak Gulati v State of Haryana, AIR 2013 SC 2071 [LNIND 2013 SC 533] : 2013 (7) Scale",
383 [LNIND 2013 SC 533] .,
"1109. Suman Sood v State of Rajasthan, AIR 2007 SC 2774 [LNIND 2007 SC 647] : (2007) 5 SCC",
634 [LNIND 2007 SC 647] .,
THE INDIAN PENAL CODE,
CHAPTER XVI OF OFFENCES AFFECTING THE HUMAN BODY OF,
OFFENCES AFFECTING LIFE,
"Of Kidnapping, Abduction, Slavery and Forced Labour",
"[s 366] Kidnapping, abducting or inducing woman to compel her marriage, etc.",
"Whoever kidnaps or abducts any woman1 with intent that she may be compelled, or",
"knowing it to be likely that she will be compelled, to marry any person against her",
"will,2 or in order that she may be forced or seduced to illicit intercourse, or knowing it",
"to be likely that she will be forced or seduced to illicit intercourse, shall be punished",
"with imprisonment of either description for a term which may extend to ten years, and",
"shall also be liable to fine; 1110.[and whoever, by means of criminal intimidation as",
"defined in this Code or of abuse of authority or any other method of compulsion,",
"induces any woman to go from any place with intent that she may be, or knowing that",
"it is likely that she will be, forced or seduced to illicit intercourse with another person",
shall be punishable as aforesaid].,
COMMENT.—,
"Where a woman has no intention of marriage or lawful intercourse when kidnapped,",
this section applies.,
[s 366.1] Ingredients.—,
The section requires.—,
1. Kidnapping or abducting of any woman.,
2. Such kidnapping or abducting must be—,
(i) with intent that she may be compelled or knowing it to be likely that she,
will be compelled to marry any person against her will; or,
"(ii) in order that she may be forced or seduced to illicit intercourse, or",
knowing it to be likely that she will be forced or seduced to illicit,
intercourse; or,
(iii) by means of criminal intimidation or otherwise by inducing any woman to,
"go from any place with intent that she may be, or knowing that she will be,",
forced or seduced to illicit intercourse.,
It is immaterial whether the woman kidnapped is a married woman or not. To,
"constitute an offence under section 366, IPC, 1860, it is necessary for the prosecution",
to prove that the accused induced the complainant-woman or compelled by force to go,
"from any place, that such inducement was by deceitful means, that such abduction",
took place with the intent that the complainant may be seduced to illicit intercourse,
and/or that the accused knew it to be likely that the complainant may be seduced to,
illicit intercourse as a result of her abduction. Mere abduction does not bring an,
"accused under the ambit of this penal section. So far as a charge under section 366,",
"IPC, 1860 is concerned, mere finding that a woman was abducted is not enough, it",
must further be proved that the accused abducted the woman with intent that she may,
"be compelled, or knowing it to be likely that she will be compelled to marry any person",
or in order that she may be forced or seduced to illicit intercourse or knowing it to be,
likely that she will be forced or seduced to illicit intercourse. Unless the prosecution,
"proves that the abduction is for the purposes mentioned in section 366, IPC, 1860 the",
"Court cannot hold the accused guilty and punish him under section 366, IPC, 1860.1111.",
"1. 'Kidnaps or abducts any woman'.—If the girl was 18 years old or over, she could only",
"be abducted and not kidnapped, but if she was under eighteen she could be kidnapped",
as well as abducted if the taking was by force or the taking or enticing was by deceitful,
"means.1112. Doubts about age, if not resolved satisfactorily, would go in favour of the",
accused.1113.,
2. 'With intent that she may be compelled … to marry any person against her will'.—The,
intention of the accused is the basis and the gravamen of the offence under this,
"section. The volition, the intention and the conduct of the woman do not determine the",
offence; they can only bear upon the intent with which the accused kidnapped or,
"abducted the woman, and the intent of the accused is the vital question for",
"determination in each case. Where only confinement was established, the Supreme",
Court held that conviction was possible under sections 365 and 368 and not 366.1114.,
"Once the necessary intent of the accused is established the offence is complete,",
"whether or not the accused succeeded in effecting his purpose, and whether or not in",
the event the woman consented to the marriage or the illicit intercourse.1115.,
"In order to establish an offence under section 366 IPC, 1860 it must first be established",
"that the offence of kidnapping under section 361 IPC, 1860 has been proved. It must",
then be shown that such kidnapping was with the contumacious intent referred to,
"under section 366 IPC, 1860.1116. If the girl kidnapped is below 18 years, consent is",
immaterial for the offence to be made out.1117.,
3. 'Forced or seduced to illicit intercourse'.—The word 'forced' is used in its ordinary,
dictionary sense and includes force by stress of circumstances. The expression,
"'seduced', used in this section and section 366A, means inducing a woman to submit to",
illicit intercourse at any time.1118. The Supreme Court in this case disapproved of the,
view taken by the Allahabad and Lahore High Courts that the word 'seduced' used in,
this section is properly applicable only to the first act of illicit intercourse unless there,
"be a proof of return to chastity on the part of the girl. The Calcutta, the Patna, the",
Madras and the Bombay High Courts had held that 'seduction' is not used in the narrow,
"sense of inducing a girl to part with her virtue for the first time, but includes subsequent",
seduction for further acts of illicit intercourse.1119. Mere abduction does not make out,
"an offence under section 366, IPC, 1860. It must further be proved that the accused",
abducted the woman for any of the purposes mentioned in section 366.1120.,
[s 366.2] Consent.—,
Merely because a person did not give passive resistance it does not mean his helpless,
resignation on face of inevitable compulsion cannot be deemed as consent. Only,
conclusion relevant is that she was kidnapped and kept under barrier and was raped,
against her will.1121. Where the evidence showed that victim herself had called the,
"accused to meet her at a place outside the village, it was held that accused was",
entitled to acquittal.1122. Prosecutrix aged 19 years accompanied her elder sister went,
with appellant voluntarily and did not make any annoyance and performed intercourse,
"with him. Only after tracing her out by Police, in connection with report of missing",
"person, she stated to Police some ingredients of offence of rape. It is apparent that in",
"spite of having opportunity at various stages and various places, she did not complain",
to any one or did not make any annoyance saying that she is being taken by appellant,
without her will. Offence was not made out.1123. Where the girl supposed to have been,
taken away under threats was taken from one place to another and they stayed at,
"different hotels, the girl making no protest anywhere, her consent was presumed.1124.",
"Where the prosecutrix, a teenaged girl, did not put up struggle or jump down from the",
"cycle of the accused or not even raised an alarm while being taken away, the offence",
under section 366 was not made out. The conviction was set aside.1125.,
Mere submission without resistance cannot tantamount to consent.1126.,
[s 366.3] Tribal custom of forced marriage.—,
The existence of a tribal custom under which a girl can be forced to marry her abductor,
or kidnapper by taking her away and subjecting her to intercourse cannot be accepted,
"as a good defence, it being contrary to law. But a lenient sentence of only six months",
was imposed in view of the application for compounding submitted by the victim girl,
and her father. The token punishment was necessary because the offence was not,
compoundable.1127.,
[s 366.4] Section 366 is not a minor offence of section 376.—,
"It is true that section 222 of the Cr PC, 1973 entitles a Court to convict a person of an",
offence which is minor in comparison to the one for which he is being tried but section,
"366 of the IPC, 1860 cannot be said to be a minor offence in relation to an offence",
"under section 376 of the IPC, 1860 as both the offences are of distinct and different",
categories having different ingredients.1128.,
[s 366.5] Punishment.—,
"In State of MP v Rameshwar,1129. where the victim was approximately 16 years of age",
and was seduced and kidnapped by the respondent by promising to marry her. The,
"Supreme Court, restored the sentence awarded by the trial Court, but reduced it to one",
year.1130.,
[s 366.6] When sentence shall run consecutively.—,
"In Muthuramalingam v State,1131. the Constitution Bench of the Supreme Court",
"examined the various issues relating to the sentencing of the accused, where multiple",
"murders were committed by them, and held that while multiple sentences for",
imprisonment for life can be awarded for multiple murders or other offences,
"punishable with imprisonment for life, the life sentences so awarded cannot be",
"directed to run consecutively. Such sentences would, however, be super imposed over",
"each other, so that any remission or commutation granted by a competent authority in",
one does not ipso facto result in remission of the sentence awarded to the prisoner for,
the other.,
"1110. Added by Act 20 of 1923, section 2.",
"1111. Gabbu v State of MP, AIR 2006 SC 2461 [LNIND 2006 SC 410] : (2006) 5 SCC 740 [LNIND",
2006 SC 410] .,
"1112. Prafullakumar Basu, (1929) 57 Cal 1074 , 1079. For an example of kidnaping by deceitful",
"means, see Nawabkhan v State of MP, 1990 Cr LJ 1179 (MP). The Supreme Court did not",
approve the conviction on the evidence of a prosecutrix who was for several days taken openly,
from place to place and she never protested even when she had opportunities to do so. Hari,
"Ram v State of Rajasthan, 1991 Supp (2) SCC 475 : 1991 SCC (Cr) 1071.",
"1113. Satish Kumar v State, 1988 Cr LJ 565 (Del).",
"1114. Fiyaz Ahmad v State of Bihar, 1990 Cr LJ 2241 : AIR 1990 SC 2147 . There was nothing to",
show that the confinement was either to compel her to marry or to submit to sexual intercourse,
against her wish.,
"1115. Khalil-Ur-Rahman, (1933) 11 Ran 213 (FB). Moniram Hazarika v State of Assam, (2004) 5",
"SCC 120 [LNIND 2004 SC 476] : 2004 Cr LJ 2553 : AIR 2005 SC 2472 , accused regular visited to",
"the house of the girl's brother, developed intimacy and persuaded her to abandon the lawful",
guardianship under promise of marriage. Conviction under section 366 was upheld.,
"1116. Shajahan v State, 2011 Cr LJ 573 .",
"1117. Brij Lal Sud v State of Punjab, (1970) 3 SC 808 ; Parshotam Lal v State of Punjab, (2010) 1",
SCC 65 [LNIND 2009 SC 1870] : (2010) 1 SCC (Cr) 449 — prosecutrix below 16 years;,
"compounding not allowed. Sachindra Nath, 1978 Cr LJ 1494 (Cal). A girl of 18 years old left",
"home, in the absence of her father, of her own choice with cash and gold and joined the accused",
"who took her to various places and subjected her to sex, no offence made out against the",
"accused. Om Prakash v State of Haryana, 1988 Cr LJ 1606 (P&H). Keshav v State, 2001 Cr LJ",
"1201 (Del), the victim aged about 18 years, evidence showed that she had voluntarily gone with",
"the accused and of her own free will, acquittal because the offence not made out. Varda v State",
"of Rajasthan, 2001 Cr LJ 1283 (Raj), allegation of kidnapping of daughter-in-law not proved, she",
"accompanied the accused to many places. Mehmood v State, 1998 Cr LJ 2408 (Del), the girl had",
"voluntarily gone with the accused. Hence the acquittal. P Ashriya v State of Orissa, 1998 Cr LJ",
"3162 (Ori), the girl in question was minor, there was no adjudication as to valid marriage, the",
"accused being a kidnapper, his application for custody of the girl was rejected.",
"1118. Ramesh, (1962) 64 Bom LR 780 (SC).",
"1119. Prafullakumar Basu, (1929) 57 Cal 1074 ; Krishna Maharana, (1929) 9 Pat 647; Lakshman",
"Bala, (1934) 37 Bom LR 176 , 59 Bom 652; Kartara v State, (1957) Pun 2003; Gopichand Fattumal,",
(1960) 63 Bom LR 408 .,
"1120. Chote Lal, 1979 Cr LJ 1126 : AIR 1979 SC 1494 . Goverdhan v State of MP, (1995) 1 Cr LJ",
"633 (MP), the conduct of the abducted girl showed her willingness to marriage because she",
accompanied the accused to court premises for swearing an affidavit for marriage and,
"thereafter stayed at a rest house, the charge under the section not made out.",
"1121. Dipak Kumar v The State of Bihar, 2012 Cr LJ 480 (Pat).",
"1122. Amarshibhai v State of Gujarat, 2013 Cr LJ 2768 (Guj); Shyam v State, AIR 1995 SC 2169 .",
"1123. Mahesh v State of MP, 2012 Cr LJ 910 (MP).",
"1124. State of Haryana v Naresh, 1996 Cr LJ 3614 (P&H), girl was below 18 years old. In such",
"cases the courts of both places would have jurisdiction namely, the place from where the girl",
was taken away and the place to which she was carried.,
"1125. Shyam v State of Maharashtra, AIR 1994 SC 2169 : 1995 Cr LJ 3974 . Baldeo v State of UP,",
"1993 Cr LJ 1915 (All), the girl attained the age of discretion, voluntarily accompanied the",
"accused, the latter only fulfilling her desire to go away, acquittal.",
"1126. Satish Kumar v State of Rajasthan, 2001 Cr LJ 4860 (Raj). Sentence was reduced to the",
period already undergone. Similar benefit of reduction was ordered to be given to the accused,
"who had not appealed. Gurnam Singh v State of Punjab, 1998 Cr LJ 4024 (SC), kidnapping and",
"murder of three persons, death sentence reduced to life imprisonment under sections 302/34.",
"Kuldeep K Mahato v State of Bihar, 1998 Cr LJ 4033 : AIR 1998 SC 2694 [LNIND 1998 SC 714] ,",
"for details see under section 363. See also Shivnath v State of MP, 1998 Cr LJ 2691 (MP); State",
"of Maharashtra v Surendra Kumar Mevalal Mahesh, 1998 Cr LJ 3768 (Bom); Dewan Singh v State,",
1998 Cr LJ 3905 (Del).,
"1127. Nattu v State of MP, 1990 Cr LJ 1567 (MP). See also Kunwarsingh v State of MP, 2013 Cr",
"LJ 901 (MP); Panna v State of Rajasthan, 1987 Cr LJ 997 (Raj), where a tribal custom for sale of",
girls was not accepted but light punishment was inflicted because of the custom and senior age,
of the accused.,
"1128. Surendra Rai v State of Bihar, 2013 Cr LJ 1847 (Pat).",
"1129. State of MP v Rameshwar, AIR 2005 SC 687 [LNIND 2005 SC 77] : (2005) 2 SCC 373",
[LNIND 2005 SC 77] .,
"1130. Rajesh v State of Maharashtra, AIR 1998 SC 2724 [LNIND 1998 SC 752] : 1998 Cr LJ 4042",
(SC).,
"1131. Muthuramalingam v State, 2016 Cr LJ 4165 : (2016) 8 SCC 313 [LNIND 2016 SC 308] .",
THE INDIAN PENAL CODE,
CHAPTER XVI OF OFFENCES AFFECTING THE HUMAN BODY OF,
OFFENCES AFFECTING LIFE,
"Of Kidnapping, Abduction, Slavery and Forced Labour",
1132.[s 366A] Procuration of minor girl.,
"Whoever, by any means whatsoever, induces any minor girl under the age of eighteen",
"years to go from any place or to do any act with intent that such girl may be, or",
"knowing that it is likely that she will be, forced or seduced to illicit intercourse with",
"another person shall be punishable with imprisonment which may extend to ten years,",
and shall also be liable to fine.],
COMMENT.—,
Section 366A was enacted by Act XX of 1923 to give effect to certain Articles of the,
International Convention for the Suppression of Traffic in Women and Children signed,
by various nations at Paris on 4 May 1910. While section 366A deals with procuration,
of minor girls from one part of India to another section 366B makes it an offence to,
import into India from any country outside India girls below the age of 21 years for the,
purpose of prostitution.,
[s 366A.1] Ingredients.—,
This section requires two things: (1) inducing a girl under eighteen years to go from any,
"place or to do an act,1133. and (2) intention or knowledge that such girl will be forced or",
seduced to illicit intercourse with a person.,
"The applicability of section 366-A of the IPC, 1860 requires, first, that the accused must",
"induce a girl; second, that the person induced was a girl under the age of 18 years;",
"third, that the accused has induced the victim knowing that it is likely that she will be",
"forced or seduced to an illicit sexual intercourse; fourth, that such intercourse must be",
"with that person other than the accused; fifth, that the inducement caused the girl to go",
there in the place or to do any act.1134. An offence under this section is one of,
"inducement with a particular object, and when after the inducement the offender offers",
the girl to several persons a fresh offence is not committed at every fresh offer for,
"sale.1135. Where a woman, even if she has not attained the age of 18 years, follows the",
"profession of a prostitute, and in following that profession she is encouraged or",
"assisted by someone, no offence under this section is committed by such person, for it",
cannot be said that the person who assists a girl accustomed to indulge in,
promiscuous intercourse for money in carrying on her profession acts with intent or,
knowledge that she will be forced or seduced to illicit intercourse.1136.,
1. 'Seduced'.—The verb 'seduce' is used in two senses. It is used in its ordinary and,
narrow sense as inducing a woman to stray from the path of virtue for the first time: it,
is also used in the wider sense of inducing a woman to submit to illicit intercourse at,
any time or on any occasion. It is in the latter sense that the expression has been used,
"in sections 366 and 366A of the IPC, 1860 which sections partially overlap. The word",
"""seduced"" is used in the ordinary sense of enticing or tempting irrespective of whether",
the minor girl has been previously compelled or has submitted to illicit intercourse.1137.,
A person who merely accompanies a woman going out to ply her profession of a,
"prostitute, even if she has not attained the age of 18 years, could not be said thereby to",
induce her to go from any place or to do any act with the intent or knowledge that she,
will be forced or seduced to illicit intercourse within the meaning of section 366A.1138.,
[s 366A.2] Age.—,
"In a case before the Supreme Court, the father of the girl stated that her age on the",
date of the incident was around 19 years. The doctor also certified the age to be above,
18 years. The girl told the Court that she was of only 14 years. The Supreme Court said,
that the High Court did not consider the age factor fully. The charge failed on the,
ground of the failure of prosecution to establish that the girl was less than 18 years of,
age.1139.,
[s 366A.3] CASES.—,
Where statement and conduct of the victim showed that there was neither threat nor,
"force used by the accused, it cannot be said that victim was forcibly kidnapped and",
kept in custody. Accused was held entitled to acquittal.1140.,
[s 366A.4] Non-framing of charge under section 366-A.—,
"Offence under section 366-A is not a minor offence to section 366 IPC, 1860 so as to",
"invoke section 222(2) of Cr PC, 1973. Conviction of appellants under section 366 IPC,",
1860 without there being a charge is illegal and liable to be set aside.1141.,
[s 366A.5] Difference between sections 366 and 366A.—,
A bare perusal of this section would indicate that the kidnapping or abduction of any,
"woman with a view to compel her for marriage, etc. is covered by this section. Now, a",
perusal of the section would indicate that if the minor girl is induced to go from any,
"place or to do any act with an intent that such girl may be, or knowing that it is likely",
"that she will be, forced or seduced to illicit intercourse with another person shall be",
"punishable with imprisonment which may extend to ten years, and shall also be liable",
to fine. The title to the section is procuration of minor girl. The essential ingredient is,
inducement of a minor girl to go from any place or to do any act with intent that such,
girl may be or knowing that it is likely that she will be forced or seduced to illicit,
intercourse with another. The minor must be proved to have been induced to go or to,
"do something. If the charge is under section 366A then ""Kidnapping"" is not the",
"essential ingredient. While kidnapping, abduction is a part of the offence under section",
"366, its latter part, viz., ""inducement"" is the only common ingredient in section 366 and",
"section 366A IPC, 1860.1142.",
"1132. Ins. by Act 20 of 1923, section 3.",
"1133. Where there was no threat or inducement or persuasion in taking away a minor girl,",
"provisions of section 361 or 366A were not attracted. State of Kerala v Rajayyan, 1996 Cr LJ 145",
"(Ker). Sannaia Subba Rao v State of AP, (2008) 17 SCC 225 [LNIND 2008 SC 1502] , the evidence",
on record did not reveal the requisite intention. The accusation of forced came to be stated at,
the trial only for the purpose of attracting major punishment. There was no reliable evidence of,
"kidnapping. Zakir v State of MP, (2009) 6 SCC 646 [LNIND 2009 SC 2977] : AIR 2009 SC 2437",
"[LNIND 2009 SC 2977] , the prosecutrix in her examine-in-chief could not recognise the accused",
as she had not seen him before. The trial court and High Court ignored this statement. The,
conviction was set aside.,
"1134. Ganesh Mallik v State of Jharkhand, 2011 Cr LJ 562 (Jha).",
"1135. Sis Ram, (1929) 51 All 1888 .",
"1136. Ramesh, (1962) 64 Bom LR 780 (SC). Y Srinivasa Rao v State of AP, (1995) 2 Cr LJ 1997",
"(AP), here the fact of age below 18 years was not made out and, therefore, no offence under the",
"section. Ganga Dayal Singh v State of Bihar, AIR 1994 SC 859 : 1994 Cr LJ 951 , the accused,",
"aged 55 years, abducted a minor girl and his guilt was conclusively proved. His only plea that in",
"that old age he could not have developed fancy for a minor girl, not tenable. His conviction was",
not interfered with.,
"1137. Gopichand Fattumal, (1960) 63 Bom LR 408 ; Ramesh, (1962) 64 Bom LR 780 (SC).",
"Mojuddin v State of Rajasthan, 2001 Cr LJ 2000 (Raj) girl above 18 years old, she had been going",
"away and staying with the accused earlier also. Conviction set aside. Rajan v State of Rajasthan,",
"2002 Cr LJ 3152 (Raj), the prosecutrix, a minor girl, and the accused had love affair. She herself",
"went with the accused to different places. Hence, no offence made out under section 366A.",
"Mahesh v State of Rajasthan, 1999 Cr LJ 4625 (Raj), conviction for kidnapping a minor girl and",
subjecting her to rape and also forcing her to surrender before others. Rakesh v State of,
"Rajasthan, 1998 Cr LJ 1434 (Raj), age of the prosecutrix could not be proved to be below 18",
"years. Offence under the section not made out. Sushanta v State of Tripura, 2002 Cr LJ 195",
"(Gau), fact of abduction established by unimpeachable testimony of prosecutrix, offence of",
"abduction was made out. Krishna Mohan Thakur v State of Bihar, 2000 Cr LJ 1898 (Pat),",
"kidnapping away a girl from a hotel room and subjecting her to rape, conviction under the",
section.,
"1138. Ramesh v State of Maharashtra, AIR 1962 SC 1908 [LNIND 1962 SC 239] : 1963 Cr LJ 16 .",
"1139. Jinish Lal Sha v State of Bihar, AIR 2002 SC 2081 , on appeal from 2002 Cr LJ 274 (Pat).",
"1140. Ramji Prasad v State of Bihar, 2013 Cr LJ 446 (Pat); Ashok Mahto v State of Jharkhand,",
"2011 Cr LJ 1601 (Jha); State of Bihar v Rakesh Kumar, 2013 Cr LJ 1990 (Pat) — Accused",
acquitted for non-existing of ingredients for constituting offences under section 366A of the,
"IPC, 1860.",
"1141. Suramani v State, 2011 Cr LJ 2871 (Mad)",
"1142. Kailash Laxman Khamkar v State of Maharashtra, 2010 Cr LJ 3255 (Bom).",
THE INDIAN PENAL CODE,
CHAPTER XVI OF OFFENCES AFFECTING THE HUMAN BODY OF,
OFFENCES AFFECTING LIFE,
"Of Kidnapping, Abduction, Slavery and Forced Labour",
1143.[s 366B] Importation of girl from foreign country.,
Whoever imports into 1144.[India] from any country outside India 1145.[or from the,
State of Jammu and Kashmir] any girl under the age of twenty-one years with intent,
"that she may be, or knowing it to be likely that she will be, forced or seduced to illicit",
"intercourse with another person,",
"1146.[***] shall be punishable with imprisonment which may extend to ten years, and",
shall also be liable to fine.],
COMMENT.—,
This section makes it an offence (1) to import into India from any country outside India,
a girl under the age of twenty-one years with the intent or knowledge specified in the,
"section, or (2) to import into India from the State of Jammu and Kashmir a girl under",
"the age of twenty-one years with intent that she may be, or knowing it to be likely that",
"she will be, forced or seduced to illicit intercourse with any person. The Select",
Committee in their Report observed:,
The case of girls imported from a foreign country we propose to deal with by the insertion,
of a new section 366B in the Code. We are unanimously of opinion that the requirements of,
the Convention will be substantially met by penalising the importation of girls from a foreign,
country. At the same time we have so worded the clause as to prevent its being made a,
dead letter by the adoption of the course of importing the girl first into an Indian State.1147.,
After the coming into force of the Constitution of India this section was amended to,
bring it in accord with the changed circumstances.,
"1143. Ins. by Act 20 of 1923, section 3.",
"1144. The words ""British India"" have successively been subs. by the A.O. 1948, the A.O. 1950",
"and Act 3 of 1951 sec. 3 and Sch. (w.e.f. 1-4-1951), to read as above.",
"1145. Ins. by Act 3 of 1951, sec. 3 and Sch. (w.e.f. 1-4-1951).",
"1146. Certain words omitted by Act 3 of 1951, sec. 3 and Sch. (w.e.f. 1-4-1951).",
"1147. Gazette of India, dated 10 February 1923, Part V, p 79.",
THE INDIAN PENAL CODE,
CHAPTER XVI OF OFFENCES AFFECTING THE HUMAN BODY OF,
OFFENCES AFFECTING LIFE,
"Of Kidnapping, Abduction, Slavery and Forced Labour",
"[s 367] Kidnapping or abducting in order to subject person to grievous hurt,",
"slavery, etc.",
"Whoever kidnaps or abducts any person in order that such person may be subjected,",
"or may be so disposed of as to be put in danger of being subject to grievous hurt, or",
"slavery, or to the unnatural lust of any person, or knowing it to be likely that such",
"person will be so subjected or disposed of, shall be punished with imprisonment of",
"either description for a term which may extend to ten years, and shall also be liable to",
fine.,
THE INDIAN PENAL CODE,
CHAPTER XVI OF OFFENCES AFFECTING THE HUMAN BODY OF,
OFFENCES AFFECTING LIFE,
"Of Kidnapping, Abduction, Slavery and Forced Labour",
"[s 368] Wrongfully concealing or keeping in confinement, kidnapped or",
abducted person.,
"Whoever, knowing that any person has been kidnapped or has been abducted,",
"wrongfully conceals or confines such person, shall be punished in the same manner",
as if he had kidnapped or abducted such person with the same intention or,
"knowledge, or for the same purpose as that with or for which he conceals or detains",
such person in confinement.,
COMMENT.—,
This section does not apply to the principal offender but to those persons who assist,
him in concealing a kidnapped or abducted person. It refers to some other party who,
assists in concealing any person who has been kidnapped. A kidnapper cannot be,
convicted under this section.1148. The other party who wrongfully conceals or confines,
a kidnapped person knowing that he has been kidnapped suffers the same,
consequences at par with the person who had kidnapped or abducted the person with,
the same intention or knowledge or for the same purpose.1149. This is one of those,
sections in which subsequent abetment is punished as a substantive offence.,
[s 368.1] Ingredients.—,
To constitute an offence under this section it is necessary to establish the following,
ingredients:—,
(1) The person in question has been kidnapped.,
(2) The accused knew that the said person had been kidnapped.,
(3) The accused having such knowledge wrongfully conceals or confines the,
person concerned.,
Apart from direct evidence these ingredients can be proved by facts and circumstances,
of a particular case.1150. Where the complicity of the accused in selling the wife of the,
"co-accused was established and the buyer raped and killed her, a conviction under this",
section was upheld by the Supreme Court.1151. Three accused persons were charged,
of the offence of kidnapping a child but the child was recovered from the custody of,
another person who was a relative of the three accused persons. They were acquitted.,
It was held that the other person could not be convicted under section 368 unless it,
was proved that the person from whose custody the child was recovered had,
knowledge of the fact that the child was a kidnapped child.1152.,
"1148. Bannu Mal, (1926) 2 Luck 249 . Fiyaz Ahmed v State of Bihar, 1990 Cr LJ 2241 : AIR 1990",
"SC 2147 , a conviction for confinement of the abducted person.",
"1149. Birbal Choudhary v State of Bihar, AIR 2017 SC 4866 [LNIND 2017 SC 2898] .",
"1150. Saroj Kumari, 1973 Cr LJ 267 : AIR 1973 SC 201 [LNIND 1972 SC 554] .",
"1151. Pyare Lal v State of UP, AIR 1987 SC 852 [LNIND 1987 SC 99] : 1987 Cr LJ 769 : 1987 All",
CC 77 (2) : 1987 1 SCC 526 .,
"1152. Tikam v State of UP, 1992 Cr LJ 1381 (All). Dharam Pal v State, 2000 Cr LJ 5060 (Del), guilt",
under the section established. The accused had undergone some part of the sentence and had,
faced the trauma of prosecution for 25 years. The sentence was reduced to the period already,
undergone.,
THE INDIAN PENAL CODE,
CHAPTER XVI OF OFFENCES AFFECTING THE HUMAN BODY OF,
OFFENCES AFFECTING LIFE,
"Of Kidnapping, Abduction, Slavery and Forced Labour",
[s 369] Kidnapping or abducting child under ten years with intent to steal from,
its person.,
Whoever kidnaps or abducts any child under the age of ten years with the intention of,
"taking dishonestly any moveble property from the person of such child, shall be",
punished with imprisonment of either description for a term which may extend to seven,
"years, and shall also be liable to fine.",
THE INDIAN PENAL CODE,
CHAPTER XVI OF OFFENCES AFFECTING THE HUMAN BODY OF,
OFFENCES AFFECTING LIFE,
"Of Kidnapping, Abduction, Slavery and Forced Labour",
1153.[s 370] Trafficking of person,
"(1) Whoever, for the purpose of exploitation, (a) recruits, (b) transports, (c)",
"harbours, (d) transfers, or (e) receives, a person or persons, by—",
"First.—using threats, or",
"Secondly.—using force, or any other form of coercion, or Thirdly.—by abduction,",
or,
"Fourthly.—by practising fraud, or deception, or",
"Fifthly.—by abuse of power, or",
"Sixthly.—by inducement, including the giving or receiving of payments or",
"benefits, in order to achieve the consent of any person having control over the",
"person recruited, transported, harboured, transferred or received,",
commits the offence of trafficking.,
"Explanation 1.—The expression ""exploitation"" shall include any act of physical",
"exploitation or other form of sexual exploitation, slavery or practices similar to",
"slavery, servitude, or the forced removal of organs.",
Explanation 2.—The consent of the victim is immaterial in determination of the,
offence of trafficking.,
(2) Whoever commits the offence of trafficking shall be punished with rigorous,
"imprisonment for a term which shall not be less than seven years, but which",
"may extend to ten years, and shall also be liable to fine.",
"(3) Where the offence involves the trafficking of more than one person, it shall be",
punishable with rigorous imprisonment for a term which shall not be less than,
"ten years but which may extend to imprisonment for life, and shall also be",
liable to fine.,
"(4) Where the offence involves the trafficking of a minor, it shall be punishable",
"with rigorous imprisonment for a term which shall not be less than ten years,",
"but which may extend to imprisonment for life, and shall also be liable to fine.",
"(5) Where the offence involves the trafficking of more than one minor, it shall be",
punishable with rigorous imprisonment for a term which shall not be less than,
"fourteen years, but which may extend to imprisonment for life, and shall also",
be liable to fine.,
(6) If a person is convicted of the offence of trafficking of minor on more than one,
"occasion, then such person shall be punished with imprisonment for life, which",
"shall mean imprisonment for the remainder of that person's natural life, and",
shall also be liable to fine.,
(7) When a public servant or a police officer is involved in the trafficking of any,
"person, then such public servant or police officer shall be punished with",
"imprisonment for life, which shall mean imprisonment for the remainder of that",
person's natural life and shall also be liable to fine.],
COMMENTS,
1. Amendment of 2013.—Vide the Criminal Law (Amendment) Act 2013 (Act 13 of,
"2013), the entire section has been changed so as to enlarge the scope of the offence",
"and include within its purview not just the mischief of slavery, but trafficking in general",
"—of minors and also adults, and also forced or bonded labour, prostitution, organ",
transplantation and to some extent child-marriages.1154.,
"For the purposes of this new offence, an offender has been classified into five",
"categories, thus covering every aspect of the commission of such offences. A person",
"can be held liable within the mischief of this offence if he either (i) recruits, or (ii)",
"transports, (iii) harbours, (iv) transfers, or (v) receives, a person or persons.",
COMMENT.—,
The sections of the Code relating to slavery were enacted for the suppression of,
"slavery, not only in its strict and proper sense, namely, that condition whereby an",
"absolute and unlimited power is given to the master over the life, fortune and liberty of",
"another, but in any modified form where an absolute power is asserted over the liberty",
of another.1155.,
[s 370.1] Ingredients.—,
This section makes penal—,
"(1) the importation, exportation, removal, buying, selling of a person as a slave;",
(2) the disposal of a person as a slave; and,
"(3) the acceptation, reception, or detention, of any person against his will as a slave.",
"1153. Sections 370 and 370A subs. for section 370 by the Criminal Law (Amendment) Act,",
"2013 (13 of 2013), section 8 (w.e.f. 3 February 2013). Prior to substitution by section 8 of the",
"Criminal Law (Amendment) Act, 2013 (w.e.f. 3 February 2013), section 370 stood as under:",
"[s 370] Whoever imports, exports, removes, buys, sells or disposes of any person as a slave, or",
"accepts, receives or detains against his will any person as a slave, shall be punished with",
"imprisonment of either description for a term which may extend to seven years, and shall also",
be liable to fine.,
1154. Chapter 6 of Justice JS Verma Committee's Report is on Trafficking of Woman and,
"Children, wherein the entire issue of trafficking has been discussed at length.",
"1155. Ram Kuar v State, (1880) 2 All 723 , 731 (FB).",
THE INDIAN PENAL CODE,
CHAPTER XVI OF OFFENCES AFFECTING THE HUMAN BODY OF,
OFFENCES AFFECTING LIFE,
"Of Kidnapping, Abduction, Slavery and Forced Labour",
1156.[s 370-A] Exploitation of a trafficked person.,
"(1) Whoever, knowingly or having reason to believe that a minor has been",
"trafficked, engages such minor for sexual exploitation in any manner, shall be",
punished with rigorous imprisonment for a term which shall not be less than,
"five years, but which may extend to seven years, and shall also be liable to fine.",
"(2) Whoever, knowingly by or having reason to believe that a person has been",
"trafficked, engages such person for sexual exploitation in any manner, shall be",
punished with rigorous imprisonment for a term which shall not be less than,
"three years, but which may extend to five years, and shall also be liable to fine.]",
"1156. Sections 370 and 370A subs. for section 370 by the Criminal Law (Amendment) Act,",
"2013 (13 of 2013), section 8 (w.e.f. 3 February 2013).",
THE INDIAN PENAL CODE,
CHAPTER XVI OF OFFENCES AFFECTING THE HUMAN BODY OF,
OFFENCES AFFECTING LIFE,
"Of Kidnapping, Abduction, Slavery and Forced Labour",
[s 371] Habitual dealing in slaves.,
"Whoever habitually imports, exports, removes, buys, sells, traffics or deals in slaves,",
"shall be punished with 1157.[imprisonment for life], or with imprisonment of either",
"description for a term not exceeding ten years, and shall also be liable to fine.",
COMMENT.—,
This section provides for the punishment of the slave-trader who is habitually engaged,
in the traffic of buying and selling human beings. The preceding section dealt with the,
casual offender.,
"1157. Subs. by Act 26 of 1955, section 117 and Sch., for ""transportation for life"" (w.e.f. 1",
January 1956).,
THE INDIAN PENAL CODE,
CHAPTER XVI OF OFFENCES AFFECTING THE HUMAN BODY OF,
OFFENCES AFFECTING LIFE,
"Of Kidnapping, Abduction, Slavery and Forced Labour",
"[s 372] Selling minor for purposes of prostitution, etc.",
"Whoever sells, lets to hire, or otherwise disposes of1 any 1158.[person under the age",
of eighteen years2 with intent that such person shall at any age be employed or used,
for the purpose of prostitution or illicit intercourse with any person or for any unlawful,
"and immoral purpose,3 or knowing it to be likely that such person will at any age be]",
"employed or used for any such purpose, shall be punished with imprisonment of",
"either description for a term which may extend to ten years, and shall be liable to fine.",
"1159.[Explanation I.—When a female under the age of eighteen years is sold, let for",
"hire, or otherwise disposed of to a prostitute or to any person who keeps or manages",
"a brothel, the person so disposing of such female shall, until the contrary is proved, be",
presumed to have disposed of her with the intent that she shall be used for the,
purpose of prostitution.,
"Explanation II.—For the purposes of this section ""illicit intercourse"" means sexual",
"intercourse between persons not united by marriage or by any union or tie which,",
"though not amounting to a marriage, is recognised by the personal law or custom of",
"the community to which they belong or, where they belong to different communities,",
"of both such communities, as constituting between them a quasi-marital relation.]",
COMMENT.—,
This section requires:—,
"(1) Selling, or letting to hire, or other disposal of a person.",
(2) Such person should be under the age of eighteen years.,
"(3) The selling, letting to hire, or other disposal must be with intent or knowledge of",
likelihood that the person shall at any age be employed or used for,
"(i) prostitution, or",
"(ii) illicit intercourse with any person, or",
(iii) any unlawful and immoral purpose.,
[s 372.1] Scope.—,
This section applies to males or females under the age of 18 years.1160. It applies to a,
"married or an unmarried female even where such female, prior to sale or purchase, was",
leading an immoral life.1161. It also applies where the girl is a member of the dancing,
girl caste.1162.,
This section deals with one who sells a person under 18 years; the next section,
punishes one who buys such person.,
"1. 'Sells, lets to hire, or otherwise disposes of'.—These words are the counterpart of",
"the words ""buys, hires or otherwise obtains possession"", occurring in section 373. The",
performance of gejee (initiation ceremony) on a minor girl does not amount to her,
"disposal.1163. The ceremony of tying a talimani to a minor girl, worshipping a basin of",
"water by her and distributing food is merely a preliminary step before the selling, letting",
"out, or disposing of the girl for the purpose of prostitution, and is no offence under this",
section.1164.,
2. 'Person under the age of eighteen years'.—The section applies to all persons under,
"18 years, whether males or females.",
3. 'With intent that such persons shall at any age be employed or used for the purpose,
of prostitution or illicit intercourse with any person or for any unlawful and immoral,
purpose'.—It is necessary to show that the accused intended that the person shall be,
employed for an immoral purpose. The introduction of the words 'at any age' takes,
away the defence that though a girl was made over to a prostitute it was not intended,
that she should actually be used for the purpose of prostitution until she had passed,
the age of eighteen years.1165.,
"The word 'prostitution' is not confined to acts of natural sexual intercourse, but includes",
any act of lewdness. It means surrender of a girl's chastity for money.,
The words 'illicit intercourse with any person' are explained in Explanation 2. The,
accused cannot now rely on the plea that the girl was not destined for a life of,
"prostitution, but merely for a single act of sexual intercourse. Cases which laid down",
that no offence was committed if employment for prostitution was not habitual are no,
longer of any authority.,
[s 372.2] Adoption of daughter by dancing girl.—,
Such adoption would be an offence if it was done with the intention or knowledge,
specified in the section. The burden of proof that the possession of the girl is not given,
to or obtained by a prostitute for leading an immoral life is on the person who gives the,
possession of such girl and the person who receives the girl under Explanation 1 to this,
section and section 373.,
[s 372.3] Dev dasi.—,
The dedication of minors to the service of a temple as dasis (servants) amounts to a,
"disposal of such minors, knowing it to be likely that they will be used for the purpose of",
prostitution within the meaning of this section.1166.,
"1158. Subs. by Act 18 of 1924, sec. 2, for certain words.",
"1159. Ins. by Act 18 of 1924, sec. 3.",
"1160. Kammu, (1878) PR No. 12 of 1879.",
"1161. Ismail Rustomkhan, (1906) 8 Bom LR 236 [LNIND 1906 BOM 10] .",
"1162. Ramanna v State, (1889) 12 Mad 273.",
"1163. Parmeshwari Subbi, (1920) 22 Bom LR 894 [LNIND 1920 BOM 54] .",
"1164. Sahebava Birappa, (1925) 27 Bom LR 1022 .",
"1165. Ramanna, (1889) 12 Mad 273; and Karuna Baistobi, (1894) 22 Cal 164 , are therefore",
overruled.,
"1166. (1881) 1 Weir 359, FB; Basava v State, (1891) 15 Mad 75; Jaili Bhavin, (1869) 6 BHC (Cr C)",
"60; Tippa, (1892) 16 Bom 737.",
THE INDIAN PENAL CODE,
CHAPTER XVI OF OFFENCES AFFECTING THE HUMAN BODY OF,
OFFENCES AFFECTING LIFE,
"Of Kidnapping, Abduction, Slavery and Forced Labour",
"[s 373] Buying minor for purposes of prostitution, etc.",
"Whoever buys, hires or otherwise obtains possession of any 1167.[person under the",
age of eighteen years with intent that such person shall at any age be employed or,
used for the purpose of prostitution or illicit intercourse with any person or for any,
"unlawful and immoral purpose, or knowing it to be likely that such person will at any",
"age be] employed or used for any purpose, shall be punished with imprisonment of",
"either description for a term which may extend to ten years, and shall also be liable to",
fine.,
"1168.[Explanation I.—Any prostitute or any person keeping or managing a brothel, who",
"buys, hires or otherwise obtains possession of a female under the age of eighteen",
"years shall, until the contrary is proved, be presumed to have obtained possession of",
such female with the intent that she shall be used for the purpose of prostitution.,
"Explanation II.—""Illicit intercourse"" has the same meaning as in section 372.",
COMMENT.—,
This section and section 372 conjointly punish both the giver as well as the receiver of,
a person under the age of eighteen years for an immoral purpose. Both the sections,
relate to the same subject-matter. The former contemplates an offence committed by,
"the person who sells, or lets to hire, or otherwise disposes of any person under the age",
"of eighteen years, with the requisite intent or knowledge. The latter relates to the case",
"of the person who buys, hires, or otherwise obtains possession of any person under the",
age of eighteen. The first section strikes at any bargain of the nature contemplated by,
"it, whoever may be the party who sells or lets the person, even though it should be the",
"father or mother or lawful guardian. The second strikes at the bawds, keepers of",
brothels and all others who fatten on the profits arising from the general prostitution of,
girls.,
[s 373.1] Ingredients.—,
This section requires—,
"1. Buying, hiring or otherwise obtaining possession of a person.",
2. The person should be under the age of eighteen years.,
"3. The buying, hiring, or otherwise obtaining possession must be with intent or",
knowledge of likelihood that the person shall at any age be employed or used for,
"(i) prostitution, or",
"(ii) illicit intercourse, or",
(iii) any unlawful and immoral purpose.,
[s 373.2] Explanation I.—,
"In order that the presumption under this Explanation should take effect, it is necessary",
that the accused should be a prostitute or should be keeping or managing a brothel at,
the time he or she obtains possession of a girl.1169.,
[s 373.3] 'Person under the age of eighteen years with intent that such person,
shall at any age be employed or used for the purpose of prostitution or illicit,
"intercourse with any person, etc.'—",
The age-limit was raised to 18 years by Act V of 1924.,
The introduction of the words 'at any age' indicates that the offence is committed even,
if the employment of the person for immoral purpose is to take place after the,
"completion of eighteen years, that is, at any time.",
The words 'illicit intercourse' are explained in Explanation 2 to section 372. See,
comment on section 372.,
"1167. Subs. by Act 18 of 1924, sec. 2, for certain words.",
"1168. Ins. by Act 18 of 1924, sec. 4.",
"1169. Banubai Irani, (1942) 45 Bom LR 281 (FB).",
THE INDIAN PENAL CODE,
CHAPTER XVI OF OFFENCES AFFECTING THE HUMAN BODY OF,
OFFENCES AFFECTING LIFE,
"Of Kidnapping, Abduction, Slavery and Forced Labour",
[s 374] Unlawful compulsory labour.,
"Whoever unlawfully compels any person to labour against the will of that person, shall",
be punished with imprisonment of either description for a term which may extend to,
"one year, or with fine, or with both.",
COMMENT.—,
This section is intended to put a stop to the practice of forced labour. It requires—,
(1) Unlawful compulsion of any person.,
(2) The unlawful compulsion must be to labour against the will of that person.,
This section is aimed at the abuses arising from forced labour which ryots were in,
former times compelled to render to great landholders.,
"Where the accused induced the complainants who, he alleged, were indebted to him in",
"various sums of money, to consent to live on his premises and to work off their debts",
"and the complainants were to, and did in fact, receive no pay, but were fed by the",
"accused as his servants, and he insisted on their working for him, and punished them",
"by beating them if they did not do so, it was held that he was not guilty under this",
section though his act came within section 352.1170.,
Imposition of hard labour on persons undergoing imprisonment is legal. They can be,
compelled to do hard labour.1171.,
"1170. Madan Mohan Biswas, (1892) 19 Cal 572 .",
"1171. State of Gujarat v Hon'ble High Court of Gujarat, 1998 Cr LJ 4561 : AIR 1998 SC 3164",
[LNIND 1998 SC 920] .,
"The Indian Penal Code (PB), 36th ed",
"Ratanlal & Dhirajlal: Indian Penal Code (PB) / 1173. Subs. by the Criminal Law (Amendment) Act, 2013 (13",
"of 2013), section 9 (w.e.f. 3 February 2013). Prior to substitution by section 9 of the Criminal Law",
"(Amendment) Act, 2013 (w.e.f. 3 February 2013), section 375 stood as: [s 375] Rape.—A man is said to",
"commit “rape” who, except in the case hereinafter excepted, has sexual intercourse with a woman under",
circumstances falling under any of the six following descriptions:— First.—Against her will. Secondly.—,
"Without her consent. Thirdly.—With her consent, when her consent has been obtained by putting her or any",
"person in whom she is interested in fear of death or of hurt. Fourthly.—With her consent, when the man",
"knows that he is not her husband, and that her consent is given because she believes that he is another",
"man to whom she is or believes herself to be lawfully married. Fifthly.—With her consent, when, at the time",
"of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him",
"personally or through another of any stupefying or unwholesome substance, she is unable to understand",
"the nature and consequences of that to which she gives consent. Sixthly.—With or without her consent,",
when she is under sixteen years of age. Explanation.—Penetration is sufficient to constitute the sexual,
"intercourse necessary to the offence of rape. Exception.—Sexual intercourse by a man with his own wife,",
"the wife not being under fifteen years of age, is not rape. State Amendments Manipur.—The following",
amendments were made by Act 30 of 1950 (prior to Act 43 of 1983). (a) in clause fifthly for the word,
"“sixteen” substitute the word “fourteen” and (b) in the Exception, for the word “fifteen” substitute the word",
“thirteen”. [s 375] Rape.,
Currency Date: 28 April 2020,
© 2020 LexisNexis,
THE INDIAN PENAL CODE,
CHAPTER XVI OF OFFENCES AFFECTING THE HUMAN BODY OF,
OFFENCES AFFECTING LIFE,
1172.,
[Sexual Offences],
1173.[s 375] Rape.,
"A man is said to commit ""rape"" if he —",
"(a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a",
woman or makes her to do so with him or any other person; or,
"(b) inserts, to any extent, any object or a part of the body, not being the penis, into",
"the vagina, the urethra or anus of a woman or makes her to do so with him or",
any other person; or,
(c) manipulates any part of the body of a woman so as to cause penetration into,
"the vagina, urethra, anus or any part of body of such woman or makes her do",
so with him or any other person; or,
"(d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do",
so with him or any other person;,
under the circumstances falling under any of the following seven descriptions:,
—,
First.—Against her will.,
Secondly.—Without her consent.,
"Thirdly.—With her consent, when her consent has been obtained by putting her",
"or any person in whom she is interested, in fear of death or of hurt.",
"Fourthly.—With her consent, when the man knows that he is not her husband",
and that her consent is given because she believes that he is another man to,
whom she is or believes herself to be lawfully married.,
"Fifthly.—With her consent when, at the time of giving such consent, by reason",
of unsoundness of mind or intoxication or the administration by him personally,
"or through another of any stupefying or unwholesome substance, she is unable",
to understand the nature and consequences of that to which she gives consent.,
"Sixthly.—With or without her consent, when she is under eighteen years of age.",
Seventhly.—When she is unable to communicate consent.,
"Explanation 1.—For the purposes of this section, ""vagina"" shall also include",
labia majora.,
Explanation 2.—Consent means an unequivocal voluntary agreement when the,
"woman by words, gestures or any form of verbal or non-verbal communication,",
communicates willingness to participate in the specific sexual act:,
Provided that a woman who does not physically resist to the act of penetration,
"shall not by the reason only of that fact, be regarded as consenting to the",
sexual activity.,
Exception 1.—A medical procedure or intervention shall not constitute rape.,
"Exception 2.—Sexual intercourse or sexual acts by a man with his own wife, the",
"wife not being under fifteen years of age, is not rape.]",
COMMENTS.—,
The chapter sub-heading itself was changed from 'Of rape' to 'Sexual Offences' by Act,
43 of 1983. The definition of rape has undergone a major change in admitting non-,
penile penetration also but it continues to be gender-specific as committed against a,
"female. Earlier, a public interest litigation in Sakshi v UOI,1174. seeking for a declaration",
to treat non-penile penetration also to be treated as rape failed when the Supreme,
Court declined the relief but the Court's exhortation to alter the definition paved way for,
the change of law.,
"[s 375.1] The Criminal Law (Amendment) Act, 2013",
"Based on the recommendations made by the Justice Verma Committee, the Criminal",
"Law (Amendment) Act, 2013, came into force with effect from 3 February 2013. The",
"Criminal Law (Amendment) Act, 2013 made amendments to the Cr PC, 1973, Indian",
"Evidence Act, 1872 and the IPC, 1860. The Criminal Law (Amendment) Act, 2013",
expanded the definition of rape and substituted new sections for old sections such as,
"sections 370, 375, 376, 376A, 376B, 376C and 376D. The Criminal Law (Amendment)",
"Act, 2013 also amended existing sections as well as created new offences in the IPC,",
"1860, such as:",
• Public servant disobeying direction under law (section 166A),
• Punishment for non-treatment of victim (section 166B),
"• Voluntarily causing grievous hurt by use of acid, etc. (section 326A)",
• Voluntarily throwing or attempting to throw acid (section 326B),
• Sexual harassment and punishment for sexual harassment (section 354A),
• Assault or use of criminal force to woman with intent to disrobe (section 354B),
• Voyeurism (section 354C),
• Stalking (section 354D),
• Punishment for repeat offenders (section 376E),
The altered definition increasing the age of consent to 18 is also significant for it,
makes any form of penetration as set out under the section with any girl less than 18,
"years of age to constitute rape. In a matrimonial setting, it would not have resulted in",
rape if the woman was still less than 18 and above 15 so long as there was consent by,
virtue of Exception 2 contained in the section. But the decision of the Supreme Court in,
"Independent Thought v UOI,1175. has held the provision to be unconstitutional in so far it",
relates to girl between ages 15 to 18. Now the Exception 2 has to be read as 'Sexual,
"intercourse or sexual acts by a man with his own wife, the wife not being under",
eighteen years of age is not rape'.,
Rape is violative of victim's fundamental right under Article 21 of the Constitution. It is,
"the most morally and physically reprehensible crime in a society, as it is an assault on",
"the body, mind and privacy of the victim. While a murderer destroys the physical frame",
"of the victim, a rapist degrades and defiles the soul of a helpless female. Rape reduces",
"a woman to an animal, as it shakes the very core of her life. By no means can a rape",
"victim be called an accomplice. Rape leaves a permanent scar on the life of the victim,",
and therefore a rape victim is placed on a higher pedestal than an injured witness. Rape,
is a crime against the entire society and violates the human rights of the victim. Being,
"the most hated crime, rape tantamounts to a serious blow to the supreme honour of a",
"woman, and offends both, her esteem and dignity. It causes psychological and physical",
"harm to the victim, leaving upon her indelible marks.1176.",
[s 375.2] First clause—Against her will.—In a case decided prior to the enactment of,
"the Criminal Law (Amendment) Act, 2013,",
the prosecutrix stated that first offending act was done despite her resistance but,
subsequently she became a consenting party because of repeated promises of,
marriage. In the FIR she stated that she surrendered before him even at the time of the,
first act because of the promises of marriage. The Court held that her version was not,
reliable and found that the charge against the accused did not stand established.1177.,
[s 375.3] Second clause—Without consent.—,
It must be said that now in a custodial rape if the girl says that she did not give,
"consent, the Court shall presume that she did not consent1178. (vide section 114A",
"Indian Evidence Act, 1872).",
[s 375.4] Consent on promise of marriage.—,
"Consent may be express or implied, coerced or misguided, obtained willingly or through",
"deceit. Consent is an act of reason, accompanied by deliberation, the mind weighing,",
"as in a balance, the good and evil on each side. There is a clear distinction between",
rape and consensual sex and the Court must very carefully examine whether the,
"accused had actually wanted to marry the victim, or had mala fide motive, and had",
"made a false promise to this effect only to satisfy his lust, as the latter falls within the",
ambit of cheating or deception. There is a distinction between the mere breach of a,
"promise, and not fulfilling a false promise. Thus, the Court must examine whether there",
"was made, at an early stage a false promise of marriage by the accused; and whether",
the consent involved was given after wholly understanding the nature and,
consequences of sexual indulgence. There may be a case where the prosecutrix agrees,
"to have sexual intercourse on account of her love and passion for the accused, and not",
"solely on account of misrepresentation made to her by the accused, or where an",
"accused on account of circumstances which he could not have foreseen, or which were",
"beyond his control, was unable to marry her, despite having every intention to do so.",
Such cases must be treated differently. An accused can be convicted for rape only if,
"the Court reaches a conclusion that the intention of the accused was mala fide, and",
"that he had clandestine motives.1179. Where a man and woman were living together,",
sometimes at her house and sometimes at the residence of the man and when the,
evidence suggested that it was not a case of a passive submission in the face of any,
psychological pressure exerted and there was a tacit consent not borne out of any,
"misconception created in her mind, complaint under this section will be untenable.1180.",
In the event that the accused's promise is not false and has not been made with the,
"sole intention to seduce the prosecutrix to indulge in sexual acts, such an act(s) would",
"not amount to rape. Thus, the same would only hold that the prosecutrix, under a",
"misconception of fact to the extent that the accused is likely to marry her, submits to",
"the lust of the accused, such a fraudulent act cannot be said to be consensual, so far",
as the offence of the accused is concerned.1181.,
[s 375.5] Consent.—Meaning.—,
"IPC, 1860 does not define consent in positive terms. But what cannot be regarded as",
consent is explained by section 90 which reads as 'consent given first under fear of,
injury and second under a misconception of fact is not consent at all'. There are two,
grounds specified in section 90 which are analogous to coercion and mistake of fact.,
The factors set out in first part of section 90 are from the point of view of the victim,
and second part of section 90 enacts the corresponding provision from the point of,
view of the accused. It envisages that the accused has knowledge or has reason to,
believe that the consent was given by the victim in consequence of fear of injury or,
"misconception of fact. Thus, the second part lays emphasis on the knowledge or",
reasonable belief of the person who obtains the tainted consent. The requirements of,
"both the parts should be cumulatively satisfied. In other words, the Court has to see",
whether the person giving the consent has given it under fear or misconception of fact,
"and the Court should also be satisfied that the person doing the act, i.e., the alleged",
offender is conscious of the fact or should have reason to think that but for the fear or,
"misconception, the consent would not have been given. This is the scheme of section",
90 which is couched in negative terminology. As observed in Deelip Singh @ Dilip Kumar,
"v State of Bihar,1182. section 90 cannot be considered as an exhaustive definition of",
"consent for the purposes of IPC, 1860. The normal connotation and concept of consent",
is not intended to be excluded.1183. Submission of the body under the fear or terror,
cannot be construed as a consented sexual act. Consent for the purpose of section,
375 requires voluntary participation not only after the exercise of intelligence based on,
the knowledge of the significance and moral quality of the act but after having fully,
exercised the choice between resistance and assent. Whether there was consent or,
"not, is to be ascertained only on a careful study of all relevant circumstances.1184. The",
consent does not merely mean hesitation or reluctance or a 'No' to any sexual,
advances but has to be an affirmative one in clear terms. Consent has to be,
"categorical, unequivocal, voluntary and could be given by words, gestures or any form",
of verbal or non-verbal communication signifying willingness to participate in specific,
sexual act. Woman who does not physically resist act of rape shall not by that reason,
"only be regarded as having consented to such sexual activity. In normal parlance,",
consent would mean voluntary agreement of complainant to engage in sexual activity,
without being abused or exploited by coercion or threats. Normal rule is that consent,
has to be given and it cannot be assumed.1185.,
"[s 375.6] Section 114A of Indian Evidence Act, 1872.—",
"India Evidence Act, 1872 was amended by the Criminal Law Amendment Act, 1983 and",
"section 114A was incorporated which imposed the burden of proving ""consent"" upon",
the accused in the cases of aggravated rape. This was an exception of the general rule,
"of presumption of innocence of the accused. By the Criminal Law Amendment Act,",
2013 the old section was substituted on the recommendation of Justice Verma,
Commission which reads as a follows;—,
[114A] Presumption as to absence of consent in certain prosecution for rape,
"In a prosecution for rape under clause(a), clause(b), clause(c), clause(d), clause(e), clause(f),",
"clause(g), clause(g), clause(h), clause(i), clause(j), clause(k), clause(l), clause(m), clause(n), of",
"sub-section (2) of section 376, where sexual intercourse by the accused is proved and the",
question is whether it was without the consent of the woman alleged to have been raped and,
"such woman states in her evidence before the Court that she did not consent, the Court shall",
presume that she or he did not consent.,
"Explanation.—In this section ""sexual intercourse"" shall mean any of the acts mentioned in",
clauses (a) to (c) of section 375 of the Indian Penal Code,
[s 375.7] Will and Consent.—,
"In Dileep Singh v State of Bihar,1186. the Supreme Court observed that:",
though will and consent often interlace and an act done against the will of the person can,
"be said to be an act done without consent, the Indian Penal Code categorizes these two",
expressions under separate heads in order to be as comprehensive as possible.,
In the facts of the case what is crucial to be considered is whether first clause or,
"second clause of section 375 IPC, 1860 is attracted. The expressions 'against her will'",
and 'without her consent' may overlap sometimes but surely the two expressions in,
first and second clause have different connotation and dimension. The expression,
'against her will' would ordinarily mean that the intercourse was done by a man with a,
"woman despite her resistance and opposition. On the other hand, the expression",
'without her consent' would comprehend an act of reason accompanied by,
deliberation.1187.,
Supreme Court Guidelines to Prevent Child Sexual Abuse,
"(1) The persons in charge of the schools/educational institutions, special homes,",
"children homes, shelter homes, hostels, remand homes, jails, etc., or wherever children",
"are housed, if they come across instances of sexual abuse or assault on a minor child",
which they believe to have committed or come to know that they are being sexually,
molested or assaulted are directed to report those facts keeping upmost secrecy to the,
"nearest SJPU or local police, and they, depending upon the gravity of the complaint and",
"its genuineness, take appropriate follow up action casting no stigma to the child or to",
the family members.,
"(2) Media personals, persons in charge of Hotel, lodge, hospital, clubs, studios,",
photograph facilities have to duly comply with the provision of section 20 of the Act 32,
"of 2012 and provide information to the SJPU, or local police. Media has to strictly",
comply with section 23 of the Act as well.,
"(3) Children with intellectual disability are more vulnerable to physical, sexual and",
"emotional abuse. Institutions which house them or persons in care and protection,",
"come across any act of sexual abuse, have a duty to bring to the notice of the Juvenile",
Justice Board/SJPU or local police and they in turn be in touch with the competent,
authority and take appropriate action.,
"(4) Further, it is made clear that if the perpetrator of the crime is a family member",
"himself, then utmost care be taken and further action be taken in consultation with the",
"mother or other female members of the family of the child, bearing in mind the fact that",
best interest of the child is of paramount consideration.,
"(5) Hospitals, whether Government or privately-owned or medical institutions where",
children are being treated come to know that children admitted are subjected to sexual,
"abuse, the same will immediately be reported to the nearest JJ Board/SJPU and the JJ",
"Board, in consultation with SJPU, should take appropriate steps in accordance with the",
law safeguarding the interest of child.,
"(6) The non-reporting of the crime by anybody, after having come to know that a minor",
"child below the age of 18 years was subjected to any sexual assault, is a serious crime",
and by not reporting they are screening offenders from legal punishment and hence be,
"held liable under the ordinary criminal law and prompt action be taken against them, in",
accordance with law.,
"(7) Complaints, if any, received by NCPCR, SCPCR, Child Welfare Committee (CWC) and",
"Child Helpline, NGO's or Women's Organizations, etc., they may take further follow up",
"action in consultation with the nearest JJ Board, SJPU or local police in accordance",
with law.,
(8) The Central Government and the State Governments are directed to constitute,
"SJPUs in all the Districts, if not already constituted and they have to take prompt and",
effective action in consultation with JJ Board to take care of child and protect the child,
and also take appropriate steps against the perpetrator of the crime.,
(9) The Central Government and every State Government should take all measures as,
"provided under section 43 of the The Protection of Children from Sexual Offences Act,",
2012 (Act 32/2012) to give wide publicity of the provisions of the Act through media,
"including television, radio and print media, at regular intervals, to make the general",
"public, children as well as their parents and guardians, aware of the provisions of the",
Act.,
[Shankar Kisanrao Khade v State of Maharashtra.1188.],
[s 375.8] Consent of woman of Scheduled Caste or Tribe.—,
"In Re Director General of Prosecution,1189. it was held that the consent given by a",
woman of Scheduled Castes or Scheduled Tribe community for sexual intercourse to,
one who was in a position to dominate her was no defence to a charge under section,
375.,
"The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989",
specified the sessions Court as a special Court under the Act. It was held that the trial,
of the offence of rape by such a Court was not without jurisdiction. The sessions Court,
remained the same Court even after its specification as a special Court. Setting aside,
of conviction on the technical ground of want of jurisdiction which was raised after the,
trial was over was not proper.1190.,
[s 375.9] No consent.—,
Where physical contact with the accused in the nature of a kiss or a hug was being,
"accepted by the prosecutrix without any protest, such past conduct will definitely not",
"amount to consent as for every sexual act, every time, consent is a must.1191. Where",
"the accused took away the prosecutrix to offer prayers to a deity, stayed in a",
'dharamshala' for the night and had sex with her threatening her that the police were,
"nearby, it was held that the prosecutrix could not be described as an accomplice merely",
because she did not raise alarm and the accused was liable to be convicted under,
section 376.1192.,
"Where a blind helpless young girl was raped by the accused, it was held that expression",
"""consent"" cannot be equated to inability to resist out of helplessness and absence of",
injuries on the victim also does not by itself amount to consent by her.1193. Section,
"375, as amended by the Criminal Law (Amendment) Act, 2013, lays down a woman",
who does not physically resist to the act of penetration shall not by the reason only of,
"that fact, be regarded as consenting to the sexual activity.",
[s 375.10] Third and Fourth clauses—Passive non-resistance or consent obtained by,
fraud.—,
If a girl does not resist intercourse in consequence of misapprehension this does not,
"amount to a consent on her part. Where a medical man, to whom a girl of fourteen",
"years of age was sent for professional advice, had criminal connection with her, she",
"making no resistance from a bona fide belief that he was treating her medically, it was",
held that he was guilty of rape.1194. The submission of her body by the prosecutrix,
"under fear or terror, cannot be construed as a consented sexual act. The Supreme",
Court said in this case that the fact of consent is to be ascertained only on careful,
study of all the relevant circumstances.1195.,
[s 375.11] Husband and wife.—,
Clause 4 deals with a rapist who knows that he is not his victim's husband and also,
knows that her consent is given because she believes that he is another man to whom,
she is or believes herself to be lawfully married. In a case because of matrimonial,
difficulties the wife left the matrimonial home and returned to live with her parents,
informing the husband of her intention to petition for divorce. While the wife was so,
"staying at her parents' house, the husband forced his way in and attempted to have",
sexual intercourse with her in the course of which he assaulted her. His conviction for,
attempted rape and assault occasioning actual bodily harm was upheld.1196.,
[s 375.12] Void marriage.—,
Where the marriage with the complainant was void because the accused was already,
"married and had a living spouse, of which fact was known to the complainant, he was",
held to be guilty of rape.1197.,
[s 375.13] Pregnant woman.—,
Stringent punishment has been provided for commission of rape on a woman known to,
"the culprit to be pregnant. It is, therefore, necessary knowledge of the accused should",
be established by evidence.1198.,
[s 375.14] Fifth clause—Sexual intercourse with idiot or drunken person.—,
"Where a man had carnal knowledge of a girl of imbecile mind, and the jury found that it",
"was without her consent, she being incapable of giving consent from defect of",
"understanding, it was held that this amounted to rape. Where the accused made a",
"woman quite drunk, and whilst she was insensible violated her person, it was held that",
this offence was committed.1199. These cases will now fall within the mischief of the,
"fifth clause to section 375, IPC, 1860.",
[s 375.15] Exception 2.—,
The age limit was raised to 15 years by an amendment of the Act in 1949.,
There may be cases in which the check of the law may be necessary to restrain men,
from taking advantage of their marital rights prematurely. Instances of abuse by the,
husband in such cases will fall under this clause.,
"[s 375.16] Section 375, Exception 2—Constitutional validity",
"In Independent Thought v UOI,1200. the Supreme Court held that sexual intercourse with",
girl below 18 years of age is rape regardless of whether she is married or not. The,
Court held that Exception 2 creates unnecessary and artificial distinction between,
married girl child and unmarried girl child and has no rational nexus with any unclear,
objective sought to be achieved. This artificial distinction is contrary to philosophy and,
ethos of Article 15(3) of Constitution as well as contrary to Article 21 of Constitution. It,
"is also contrary to philosophy behind some statutes, bodily integrity of girl child and her",
"reproductive choice. It is inconsistent with provisions of POCSO, which must prevail.",
"The Supreme Court held that Exception 2 to section 375, IPC, 1860 insofar as it relates",
"to girl child below 18 years is liable to be struck down and is to read down as, ""Sexual",
"intercourse or sexual acts by man with his own wife, wife not being 18 years, is not",
"rape"".",
[s 375.17] Attempt.—,
"Where the accused dragged the prosecutrix from a canal to the thrashing ground,",
"disrobed her and made her to lie down and attempted to rape her, it was held that it",
was not a mere preparation but an attempt to commit rape.1201. It has been held that,
intention or expression or even an indecent assault upon a woman does not amount to,
attempt to rape unless the determination of the accused to gratify his passion at all,
events and in spite of resistance is established.1202.,
[s 375.18] Indecent assault is not attempt to commit rape.—,
"Indecent assault upon a woman does not amount to an attempt to commit rape, unless",
the Court is satisfied that there was a determination in the accused to gratify his,
"passion at all events, and in spite of all resistance.1203.",
"1172. Subs. by Act 43 of 1983, section 3, for the heading ""Of rape"" (w.e.f. 25 December 1983).",
"1173. Subs. by the Criminal Law (Amendment) Act, 2013 (13 of 2013), section 9 (w.e.f. 3",
"February 2013). Prior to substitution by section 9 of the Criminal Law (Amendment) Act, 2013",
"(w.e.f. 3 February 2013), section 375 stood as:",
"[s 375] Rape.—A man is said to commit ""rape"" who, except in the case hereinafter excepted, has",
sexual intercourse with a woman under circumstances falling under any of the six following,
descriptions:—,
First.—Against her will.,
Secondly.—Without her consent.,
"Thirdly.—With her consent, when her consent has been obtained by putting her or any person in",
whom she is interested in fear of death or of hurt.,
"Fourthly.—With her consent, when the man knows that he is not her husband, and that her",
consent is given because she believes that he is another man to whom she is or believes herself,
to be lawfully married.,
"Fifthly.—With her consent, when, at the time of giving such consent, by reason of unsoundness",
of mind or intoxication or the administration by him personally or through another of any,
"stupefying or unwholesome substance, she is unable to understand the nature and",
consequences of that to which she gives consent.,
"Sixthly.—With or without her consent, when she is under sixteen years of age.",
Explanation.—Penetration is sufficient to constitute the sexual intercourse necessary to the,
offence of rape.,
"Exception.—Sexual intercourse by a man with his own wife, the wife not being under fifteen",
"years of age, is not rape.",
State Amendments,
Manipur.—The following amendments were made by Act 30 of 1950 (prior to Act 43 of 1983).,
"(a) in clause fifthly for the word ""sixteen"" substitute the word ""fourteen"" and",
"(b) in the Exception, for the word ""fifteen"" substitute the word ""thirteen"".",
"1174. Sakshi v UOI, AIR 2004 SC 3566 [LNIND 2004 SC 657] .",
"1175. Independent Thought v UOI, AIR 2017 SC 4904 .",
"1176. Deepak Gulati v State of Haryana, AIR 2013 SC 2071 [LNIND 2013 SC 533] : (2013) 7 SCC",
675 [LNIND 2013 SC 533] .,
"1177. Deelip Singh v State of Bihar, (2005) 1 SCC 88 [LNIND 2004 SC 1123] : AIR 2005 SC 203",
[LNIND 2004 SC 1123] .,
"1178. Fletcher, (1859) 8 Cox 131. Sohan Singh v State of Rajasthan, 1998 Cr LJ 2618 (Raj), the",
prosecutrix fell prey to persons dealing in flesh trade. Passing through several hands she was,
ultimately purchased by the accused. The fact that she had given consent at the starting point,
of the chain did not ensure for the benefit of the accused. She ran away from the hands of the,
accused. Her testimony was considered to be fully reliable for the purpose of convicting the,
"accused. Shiv Nath v State of MP, 1998 Cr LJ 2691 (MP), statements and letters to the accused",
of the prosecutrix showed her consent. No conviction.,
"1179. Deepak Gulati v State of Haryana, AIR 2013 SC 2071 [LNIND 2013 SC 533] : (2013) 7 SCC",
675 [LNIND 2013 SC 533] .,
"1180. Dhruvaram Murlidhar Sonar v State of Maharashtra, 2019 (1) Scale 64 .",
"1181. Uday v State of Karnataka, AIR 2003 SC 1639 [LNIND 2003 SC 228] ; Yedla Srinivasa Rao v",
"State of AP, 2006 (11) SCC 615 [LNIND 2006 SC 785] ; Pradeep Kumar Verma v State of Bihar, AIR",
2007 SC 3059 [LNIND 2007 SC 965] .,
"1182. Deelip Singh @ Dilip Kumar v State of Bihar, 2005 (1) SCC 88 [LNIND 2004 SC 1123] .",
"1183. Pradeep Kumar Verma v State of Bihar, AIR 2007 SC 3059 [LNIND 2007 SC 965] .",
"1184. State of HP v Mange Ram, AIR 2000 SC 2798 [LNIND 2000 SC 1144] ; Uday v State of",
"Karnataka, AIR 2003 SC 1639 [LNIND 2003 SC 228] .",
"1185. Mahmood Farooqui v State, 2018 Cr LJ 3457 (Del).",
"1186. Dileep Singh v State of Bihar, (2005) 1 SCC 88 [LNIND 2004 SC 1123] .",
"1187. State of UP v Chhteyal, AIR 2011 SC 697 [LNIND 2011 SC 73] : (2011) 2 SCC 550 [LNIND",
2011 SC 73] .,
"1188. Shankar Kisanrao Khade v State of Maharashtra, (2013)5 SCC 546 [LNIND 2013 SC 429] :",
2013 (6) Scale 277 [LNIND 2013 SC 429] : 2013 Cr LJ 2595 .,
"1189. Re Director General of Prosecution, 1993 Cr LJ 760 (Ker).",
"1190. State of HP v Gita Ram, AIR 2000 SC 2940 [LNIND 2000 SC 1209] : 2000 Cr LJ 4039 .",
"1191. Mahmood Farooqui v State, 2018 Cr LJ 3457 (Del).",
"1192. State of Orissa v Gangadhar Behuria, 1992 Cr LJ 3814 (Ori). Dayaram v State of MP, 1992",
"Cr LJ 3154 (MP), the accused took away a minor girl pretending that he would marry her and",
"instead subjected her to sex without consent, conviction under section 376 (1) and not under",
section 376 as such.,
"1193. Rabinarayan Das v State of Orissa, 1992 Cr LJ 269 (Ori).",
"1194. William's Case, (1850) 4 Cox 220.",
"1195. State of HP v Mange Ram, AIR 2000 SC 2798 [LNIND 2000 SC 1144] : 2000 Cr LJ 4027 .",
"1196. Reg v R, 3 WLR 767 (HL).",
"1197. Bhupinder Singh v UT of Chandigarh, (2008) 8 SCC 531 [LNIND 2008 SC 1375] : 2008 Cr LJ",
"3546 , the Supreme Court refused to interfere.",
"1198. Om Prakash v State of UP, 2006 Cr LJ 2913 : AIR 2006 SC 2214 [LNIND 2006 SC 382] :",
"(2006) 9 SCC 787 [LNIND 2006 SC 382] , the suggestion of false accusation was not accepted",
because there was no apparent for the married woman to do so. The sentence was reduced,
from 10 to seven years.,
"1199. Camplin, (1845) 1 Cox 220.",
1200. Writ Petition (Civil) No. 382 of 2013 decided by Supreme Court on 11 October 2017.,
"1201. Fagnu Bhoi v State of Orissa, 1992 Cr LJ 1808 (Ori).",
"1202. Kandarpa Thakuria v State of Assam, 1992 Cr LJ 3084 (Gau).",
"1203. Shankar, (1881) 5 Bom 403; Rameswar, 1984 Cr LJ 786 (Raj). State of MP v Udhe Lal, 1996",
"Cr LJ 3202 (MP), attempt proved by the statements of the prosecutrix and corroboration,",
acquittal only on the ground that there were minor variations in her statements was held to be,
"not proper, sixteen years had passed, sentence of two years RI and fine of Rs. 5000 was held to",
"be sufficient. R v C, 1992 Cr LR 642 (CA), self-induced intoxication was held to be no defence to",
the charge of indecent assault on a child by inserting his fingers into her vagina.,
"The Indian Penal Code (PB), 36th ed",
"Ratanlal & Dhirajlal: Indian Penal Code (PB) / 1204. Subs. by the Criminal Law (Amendment) Act, 2013 (13",
"of 2013), section 9 (w.e.f. 3 February 2013). Earlier section 376 was substituted by Act 43 of 1983, section",
"3 (w.e.f. 25 December 1983). Section 376, before substitution by Act 13 of 2013, stood as under: [s 376]",
"Punishment for rape.—(1) Whoever, except in the cases provided for by sub-section (2), commits rape shall",
be punished with imprisonment of either description for a term which shall not be less than seven years but,
which may be for life or for a term which may extend to ten years and shall also be liable to fine unless the,
"women raped is his own wife and is not under twelve years of age, in which cases, he shall be punished",
with imprisonment of either description for a term which may extend to two years or with fine or with both:,
"Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a",
"sentence of imprisonment for a term of less than seven years. (2) Whoever,— (a) being a police officer",
commits rape— (i) within the limits of the police station to which he is appointed; or (ii) in the premises of,
any station house whether or not situated in the police station to which he is appointed; or (iii) on a woman,
"in his custody or in the custody of a police officer subordinate to him; or (b) being a public servant, takes",
advantage of his official position and commits rape on a woman in his custody as such public servant or in,
"the custody of a public servant subordinate to him; or (c) being on the management or on the staff of a jail,",
remand home or other place of custody established by or under any law for the time being in force or of a,
woman’s or children’s institution takes advantage of his official position and commits rape on any inmate,
"of such jail, remand home, place or institution; or (d) being on the management or on the staff of a hospital,",
takes advantage of his official position and commits rape on a woman in that hospital; or (e) commits rape,
on a woman knowing her to be pregnant; or (f) commits rape on a woman when she is under twelve years,
"of age; or (g) commits gang rape, shall be punished with rigorous imprisonment for a term which shall not",
"be less than ten years but which may be for life and shall also be liable to fine: Provided that the Court may,",
"for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of",
either description for a term of less than ten years. Explanation 1.—Where a woman is raped by one or,
"more in a group of persons acting in furtherance of their common intention, each of the persons shall be",
deemed to have committed gang rape within the meaning of this sub-section. Explanation 2.—“Women’s or,
"children’s institution” means an institution, whether called an orphanage or a home for neglected women or",
"children or a widows’ home or by any other name, which is established and maintained for the reception",
and care of woman or children. Explanation 3.—“Hospital” means the precincts of the hospital and includes,
the precincts of any institution for the reception and treatment of persons during convalescence or of,
persons requiring medical attention or rehabilitation. [s 376] Punishment for rape.—,
Currency Date: 28 April 2020,
© 2020 LexisNexis,
THE INDIAN PENAL CODE,
CHAPTER XVI OF OFFENCES AFFECTING THE HUMAN BODY OF,
OFFENCES AFFECTING LIFE,
1172.,
[Sexual Offences],
1204.[s 376] Punishment for rape.—,
"(1) Whoever, except in the cases provided for in sub-section (2), commits rape, shall",
be punished with rigorous imprisonment of either description for a term which,
"1205.[shall not be less than ten years, but which may extend to imprisonment for",
"life, and shall also be liable to fine].",
"(2) Whoever,—",
"(a) being a police officer, commits rape—",
(i) within the limits of the police station to which such police officer is,
appointed; or,
(ii) in the premises of any station house; or,
(iii) on a woman in such police officer's custody or in the custody of a,
police,
officer subordinate to such police officer; or,
"(b) being a public servant, commits rape on a woman in such public",
servant's custody or in the custody of a public servant subordinate to,
such public servant; or,
(c) being a member of the armed forces deployed in area by the Central or a,
State Government commits rape in such area; or,
"(d) being on the management or on the staff of a jail, remand home or other",
place of custody established by or under any law for the time being in,
"force or of a women's or children's institution, commits rape on any",
"inmate of such jail, remand home, place or institution; or",
"(e) being on the management or on the staff of a hospital, commits rape on",
a woman in that hospital; or,
"(f) being a relative, guardian or teacher of, or a person in a position of trust",
"or authority towards the woman, commits rape on such woman; or",
(g) commits rape during communal or sectarian violence; or,
(h) commits rape on a woman knowing her to be pregnant; or 1206.[* * *],
"(j) commits rape, on a woman incapable of giving consent; or",
"(k) being in a position of control or dominance over a woman, commits rape",
on such woman; or,
(l) commits rape on a woman suffering from mental or physical disability; or,
(m) while committing rape causes grievous bodily harm or maims or,
disfigures or endangers the life of a woman; or,
"(n) commits rape repeatedly on the same woman,",
shall be punished with rigorous imprisonment for a term which shall not,
"be less than ten years, but which may extend to imprisonment for life,",
which shall mean imprisonment for the remainder of that person's natural,
"life, and shall also be liable to fine.",
"Explanation.—For the purposes of this sub-section,—",
"(a) ""armed forces"" means the naval, military and air forces and includes any",
member of the Armed Forces constituted under any law for the time,
"being in force, including the paramilitary forces and any auxiliary forces",
that are under the control of the Central Government or the State,
Government;,
"(b) ""hospital"" means the precincts of the hospital and includes the precincts",
of any institution for the reception and treatment of persons during,
convalescence or of persons requiring medical attention or rehabilitation;,
"(c) ""police officer"" shall have the same meaning as assigned to the",
"expression ""police"" under the Police Act, 1861 (5 of 1861);",
"(d) ""women's or children's institution"" means an institution, whether called an",
orphanage or a home for neglected women or children or a widow's,
"home or an institution called by any other name, which is established and",
maintained for the reception and care of women or children.],
"1207.[(3) Whoever, commits rape on a woman under sixteen years of age shall be",
punished with rigorous imprisonment for a term which shall not be less,
"than twenty years, but which may extend to imprisonment for life, which",
"shall mean imprisonment for the remainder of that person's natural life, and",
shall also be liable to fine:,
Provided that such fine shall be just and reasonable to meet the medical,
expenses and rehabilitation of the victim:,
Provided further that any fine imposed under this sub-section shall be paid,
to the victim.,
COMMENT.—,
"Criminal Law (Amendment) Act, 1983 (Mathura Act).—Acquittal of policemen in the",
infamous Mathura Rape Case1208. and the nationwide protest against the verdict led to,
"the 1983 Amendments to the Rape Laws in India. Sections 375 and 376, IPC, 1860 had",
"been substantially changed by the Criminal Law (Amendment) Act, 1983 (Act 43 of",
"1983). The same Act also introduced several new sections, viz., sections 376A, 376B,",
"376C and 376D, IPC, 1860. Of these, section 376A punished sexual intercourse with",
"wife without her consent by a judicially separated husband, section 376B punished",
"sexual intercourse by a public servant with woman in his custody, section 376C",
"punished sexual intercourse by Superintendent of Jail, Remand Home, etc., with",
inmates in such institutions and section 376D punished sexual intercourse by any,
member of the management or staff of a hospital with any woman in that hospital.,
These new sections were introduced with a view to stop sexual abuses of women in,
"custody, care and control by various categories of persons which though not",
amounting to rape were nevertheless considered highly reprehensible. The amended,
"section 376 IPC, 1860 prescribed a minimum punishment of seven years'",
"imprisonment for the offence of rape. For combating the vice of custodial rape, rape on",
"pregnant woman, rape on girls under 12 years of age and gang rape a minimum",
"punishment of 10 years' imprisonment had been made obligatory. However, for special",
reasons to be recorded in the judgment the Court in either case could impose a,
"sentence lesser than seven or 10 years, as the case may be.",
A further improvement in the law relating to sexual offences could be found in the,
"provisions of section 228A IPC, 1860, section 327(2) Cr PC, 1973 and section 114A",
"Indian Evidence Act, 1872 which were introduced by the Criminal Law (Amendment)",
"Act, 1983. New provisions for trial in camera (section 327(2) Cr PC, 1973) and against",
"disclosure as to identity of the victims of sexual offences as in sections 376, 376A,",
"376B, 376C and 376D, IPC, 1860 (section 228, IPC, 1860) were not only to protect the",
honour of sexually-victimised women but also made it possible for them to depose in,
"Court without any fear of social ostracism. And section 114A Indian Evidence Act, 1872",
"by raising a presumption as to absence of consent in cases of custodial rape, rape on",
"pregnant women and gang rape as in clauses (a), (b), (c), (d), (e) and (g) of sub-section",
"(2) of section 376, IPC, 1860 merely on the evidence of the ravished women had, at",
"least partially, removed the infirmity from the evidence of a victim of rape that was",
"hitherto unjustly attached to her testimony without taking note of the fact that in India,",
a disclosure of this nature was likely to ruin the prospect of the girl's rehabilitation in,
society for all times to come and unless her story was painfully true she would not,
"have taken such a grave risk merely to malign the accused.1209. Moreover, in cases of",
"rape, particularly custodial rape it was almost impossible to get any other independent",
evidence to corroborate the testimony of the prosecutrix.,
It has been held that the result of the Amendment of 1983 is that the offences listed in,
"section 376(2) are graver in nature and therefore, it is necessary that the charge under",
the sub-section should be distinctly recorded and also reasons for conviction should be,
recorded.1210.,
"[s 376.1]Criminal Law (Amendment) Act, 13 of 2013 (w.e.f. 2 March 2013) (post",
Nirbhaya):,
"After a violent incident of a gang rape of a woman in the capital city of Delhi in 2012,",
"bowing to public outrage, Verma Committee had been set up whose recommendations",
"gave place to important changes in law relating to rape. Some recommendations, viz.,",
"not to increase the age of consent to 18 from 16, as it stood before; introduction of",
matrimonial rape; non-requirement of sanction for prosecution of armed personnel,
were not accepted but the law changed as regards against consent by introducing,
"section 114A of the Indian Evidence Act, 1872 barring questions in cross-examination",
of the victim about the previous sexual experience or immoral character and also,
"making the issue of previous sexual experience as irrelevant, and certain other",
"procedural aspects in Cr PC, 1973 inter alia, relating to investigation by woman police",
"officers, video recording of statements before magistrates, time limit for completing of",
"enquiry, requirement of trial proceedings in camera, etc.",
[s 376.1.1] No death for rape.—,
"Respecting the demand from many quarters, the Verma committee reacted as:",
"In our considered view, taking into account the views expressed on the subject by an",
"overwhelming majority of scholars, leaders of women's organisations, and other",
"stakeholders, there is a strong submission that the seeking of death penalty would be a",
"regressive step in the field of sentencing and reformation. We, having bestowed",
"considerable thought on the subject, and having provided for enhanced sentences (short of",
"death) in respect of the above-noted aggravated forms of sexual assault, in the larger",
"interests of society, and having regard to the current thinking in favour of abolition of the",
"death penalty, and also to avoid the argument of any sentencing arbitrariness, we are not",
inclined to recommend the death penalty.,
[s 376.1.2] Chemical Castration.—,
Rejecting the proposal of Chemical Castration as a punishment for rape Committee,
observed:,
We note that it would be unconstitutional and inconsistent with basic human rights treaties,
for the state to expose any citizen without their consent to potentially dangerous medical,
"side-effects. For this reason, we do not recommend mandatory chemical castration of any",
type as a punishment for sex offenders.,
"[s 376.2] Criminal Law (Amendment) Act, 2018 (w.e.f. 21 April 2018).",
After public outrage against a suspected gang rape and murder of a girl aged eight in,
"Rasana village near Kathua in the State of Jammu and Kashmir, the Criminal Law",
"(Amendment) Act, 2018 amended Chapter XVI of the IPC, 1860 to provide for stringent",
punishment for perpetrators of rape particularly of girls below 12 and 16 years. Rape,
on a woman under 12 years of age is now made punishable with rigorous,
"imprisonment for a term which shall not be less than 20 years, but which may extend to",
"imprisonment for life, and with fine or with death. Gang rape on a woman under 12",
"years of age is now made punishable with imprisonment for life, and with fine, or with",
death. Rape of girls below the age of 16 years is punishable with imprisonment of 20,
years or life imprisonment. The imprisonment for life shall mean imprisonment for the,
remainder of that person's natural life. The minimum punishment for rape of girl above,
the age of 16 is 10 years.,
Section 376 is not gender neutral and sexual abuse of minor boys does not come,
within its purview. The punishment under Protection of Children from Sexual Offences,
"(POCSO) Act, 2012 continues to be 10 years to life imprisonment for offences against",
boys below 12 and seven years to life imprisonment for offences against boys above,
12 to 18.,
"The law amends the Cr PC, 1973 mandating the completing of investigation from the",
existing provision of three months to two months. The Act also bars anticipatory bail in,
cases of rape of minor girls below 16 years of age. Any appeal against sentence of,
rape shall be disposed of within six months.,
[s 376.3] Medical Examination of accused and victim.—,
In cases of rape or attempted rape medical examination of the victim and the accused,
soon after the incident often yields a wealth of corroborative evidence. Such an,
"opportunity should not, therefore, be lost on any account. Though the prosecutrix can",
"be examined only with her consent, the accused can be subjected to such an",
"examination by virtue of section 53 of the Cr PC, 1973. It has also to be remembered",
"that the accused too can demand such an examination under section 54 Cr PC, 1860",
especially when he feels that such an examination will disprove the charge brought,
"against him. Thus, presence of smegma on corona glandis (glans penis) of the accused",
soon after the incident is proof against complete penetration since it is rubbed off,
during intercourse.1211. But to be of any value examination of smegma must be done,
within 24 hours.1212.,
"Where proof of sexual intercourse with the woman is itself not an issue, such as when",
it is an admitted fact and the case rests upon issues of consent and where medical,
"examination revealed semen stains on the vaginal swabs and salwar of the victim, the",
Court said that at best it is an evidence of commission of sexual intercourse but not,
necessarily of rape.1213.,
[s 376.4] Two finger Test.—,
"The two finger test and its interpretation violate the right of rape survivors to privacy,",
"physical and mental integrity and dignity. Thus, this test, even if the report is",
"affirmative, cannot ipso facto, be given rise to presumption of consent. In view of",
"International Covenant on Economic, Social, and Cultural Rights, 1966; United Nations",
"Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power,",
"1985, rape survivors are entitled to legal recourse that does not re-traumatise them or",
violate their physical or mental integrity and dignity. They are also entitled to medical,
procedures conducted in a manner that respects their right to consent. Medical,
"procedures should not be carried out in a manner that constitutes cruel, inhuman, or",
degrading treatment and health should be of paramount consideration while dealing,
with gender-based violence. The State is under an obligation to make such services,
available to survivors of sexual violence. Proper measures should be taken to ensure,
their safety and there should be no arbitrary or unlawful interference with his,
privacy.1214.,
[s 376.5] Prosecutrix not an accomplice.—,
A prosecutrix complaining of having been a victim of an offence of rape is not an,
accomplice after the crime. There is no rule of law that her testimony cannot be acted,
"upon without corroboration in material particulars, for the reason, that she stands on a",
"much higher pedestal than an injured witness.1215. A woman, who is the victim of",
"sexual assault, is not an accomplice to the crime but is a victim of another person's lust",
"and, therefore, her evidence need not be tested with the same amount of suspicion as",
"that of an accomplice. The Indian Evidence Act, 1872 nowhere says that her evidence",
cannot be accepted unless it is corroborated in material particulars. She is undoubtedly,
a competent witness under section 118 and her evidence must receive the same,
weight as is attached to an injured in cases of physical violence.1216.,
[s 376.6] Defence that the girl was of easy virtue.—,
"Whether the victim of rape was previously accustomed to sexual intercourse or not,",
"cannot be the determinative question. On the contrary, the question still remains as to",
whether the accused committed rape on the victim on the occasion complained of.,
"Even if the victim had lost her virginity earlier, it can certainly not give a licence to any",
person to rape her. It is the accused who was on trial and not the victim. So as to,
whether the victim is of a promiscuous character is totally irrelevant in a case of rape.,
Even a woman of easy virtue has a right to refuse to submit herself to sexual,
"intercourse to anyone and everyone, because she is not a vulnerable object or prey for",
being sexually assaulted by anyone and everyone. A prosecutrix stands on a higher,
pedestal than an injured witness for the reason that an injured witness gets the injury,
"on the physical form, while the prosecutrix suffers psychologically and",
"emotionally.1217. In Narender Kumar v State (NCT of Delhi),1218. the Supreme Court",
dealt with a case where the allegation was that the victim of rape herself was an,
"unchaste woman, and a woman of easy virtue. The Court discussed Rajoo v State of",
"MP,1219. and held that so far as the prosecutrix is concerned, mere statement of",
"prosecutrix herself is enough to record a conviction, when her evidence is read in its",
totality and found to be worthy of reliance. The incident in itself causes a great distress,
"and humiliation to the victim though, undoubtedly a false allegation of rape can cause",
"equal distress, humiliation and damage to the accused as well. The Court further held",
"that some facts exist proving that victim was habituated to sexual intercourse, cannot",
be a reason to draw an inference that she was of 'loose moral character'. This cannot,
be a reason for her to be raped; she also has a right to protect her dignity and refuse to,
"submit to sexual intercourse by anyone. Merely because a woman is of easy virtue, her",
evidence cannot be discarded on that ground alone rather it is to be cautiously,
appreciated.1220.,
[s 376.7] Past Sexual conduct of Victim.—Legislative changes.— [s 376.8] Section,
"155(4) of Indian Evidence Act, 1872 removed.—",
"Under section 155(4) of Indian Evidence Act, 1872 the credit of a witness may be",
"impeached when a man is prosecuted for rape or an attempt to ravish, it may be shown",
that the prosecutrix was of generally immoral character. This clause was omitted by Act,
"4 of 2003, section 3 (w.e.f. 11 December 2002) whereby the defence is prohibited from",
impeaching prosecutrix's testimony on the basis of her past sexual history.,
"[s 376.9] Insertion of new section 53A in Indian Evidence Act, 1872.—",
By the Criminal Law (Amendment) Act 2013 a new section (53A) was inserted in the,
"Indian Evidence Act, 1872 in which it is clearly stated that where the question of",
"consent is in issue, evidence of the character of the victim or of such person's previous",
sexual experience with any person shall not be relevant on the issue of such consent or,
the quality of consent. Section 53A of Evidence Act; Evidence of character or previous,
sexual experience not relevant in certain cases.—In a prosecution for an offence u/ss.,
"354, 354A, 354B, 354C, section 354D, 376, 376A, 376B, 376C, 376D or 376E of the Indian",
"Penal Code (45 of 1860) or for attempt to commit any such offence, where the question",
"of consent is in issue, evidence of the character of the victim or of such person's previous",
sexual experience with any person shall not be relevant on the issue of such consent or,
the quality of consent.,
"[s 376.10] Amendment to section 146 of Indian Evidence Act, 1872.—",
"By the Criminal Law (Amendment) Act, 2013 the proviso to section 146 of the Indian",
"Evidence Act, 1872 was substituted by a new proviso which prohibits to adduce",
evidence or to put questions in the cross-examination of the victim as to the general,
"immoral character, or previous sexual experience, of such victim with any person for",
proving such consent or the quality of consent.1221.:—,
[s 376.11] Suicide by victim.—,
"Where in a rape case, the victim committed suicide before the trial and was not",
"available for examination but the other evidence proved the guilt of the accused, it was",
held that non-availability of the victim was no ground for acquittal. The accused was,
"convicted under sections 375/511 as at least attempt to rape, if not rape, was",
established from the evidence.1222.,
[s 376.12] Absence of injury.—,
It is true that injury is not a sine qua non for deciding whether rape has been,
committed. But it has to be decided on the factual matrix of each case. It was observed,
"in Pratap Misra v State of Orissa,1223. where allegation was of rape by many persons",
"and several times, but no injury was noticed. Presence of injury in this case, certainly is",
"an important factor if the prosecutrix's version is credible, and then no corroboration",
would be necessary. But if the prosecutrix's version is not credible then there would be,
need for corroboration.1224.,
[s 376.13] Corroboration of testimony.—,
"The trend of judicial opinion is that in rape cases corroboration is not a matter of law,",
"but a guide of prudence, as the testimony of the victim is vital unless there are",
compelling reasons for corroboration.1225. The Supreme Court has held that a woman,
who has been raped is not an accomplice. If she was ravished she is the victim of an,
outrage and if she consented there is no rape. In the case of a girl below the age of,
"consent, her consent will not matter so far as the offence of rape is concerned, but if",
she consented her evidence will be suspect as that of an accomplice. The true rule of,
prudence requires that in every case of this type the advisability of corroboration,
should be present in the mind of the Judge and that must be indicated in the judgment.,
But corroboration can be dispensed with by the Judge if in the particular,
circumstances of the case before him he himself is satisfied that it is safe to do,
so.1226. Indeed no rule of thumb can be laid down in this matter for every case must,
"depend a good deal on its own peculiar facts and circumstances. Thus, in Rafiq's",
"case1227. Krishna Iyer, J, observed:",
when no woman of honour will accuse another of rape since she sacrifices thereby what is,
"dearest to her, he cannot cling to a fossil formula and insist on corroborative evidence, even",
"if taken as a whole, the case spoken to by the victim strikes a judicial mind as probable …",
When a woman is ravished what is inflicted is not merely physical injury but the deep sense,
of some deathless shame … Judicial response to human rights cannot be blunted by legal,
bigotry.,
"Similarly, in Bhoginbhai's case1228. Thakkar, J, observed with some anguish:",
In the Indian setting refusal to act on the testimony of the victim of sexual assault in the,
absence of corroboration as a rule is adding insult to injury … A girl or a woman in the,
tradition bound non-permissive society of India would be extremely reluctant even to admit,
that any incident which is likely to reflect on her chastity had ever occurred. She would be,
conscious of the danger of being ostracised by the society … And when in the face of these,
"factors the crime is brought to light, there is built-in assurance that the charge is genuine",
rather than fabricated … Just as a witness who has sustained an injury (which is not shown,
or believed to be self-inflicted) is the best witness in the sense that he is least likely to,
"exculpate the real offender, the evidence of a victim of sex offence is entitled to great",
weight absence of corroboration notwithstanding.,
Refusal by the accused person to subject himself to blood test for the purpose of,
determining his fatherhood of the child who was born as a result of the alleged rape,
was considered to be an evidence of corroboration.1229.,
[s 376.14] Conviction on sole testimony of prosecutrix.—,
A conviction on the sole testimony of the prosecutrix is sustainable where the Court is,
convicted of the truthfulness of the prosecutrix and there exist no circumstances which,
"cast a shadow of doubt over her veracity.1230. To insist on corroboration, except in the",
"rarest of rare cases, is to equate one who is a victim of the lust of another, with an",
accomplice to a crime and thereby insult womanhood.1231.,
[s 376.15] CASES.— Rape by police constable.—,
The victim was allegedly raped in a hotel room by a police constable. She could not,
identify him. No test identification parade was held. The Supreme Court said that the,
identity was established by the fact that the accused was arrested from the hotel. The,
room was booked by him. He was not able to explain his whereabouts at the time of,
the offence. The Court further observed that the Courts have to adopt a different,
approach in such case. The Court should not get swayed by minor contradictions or,
discrepancies and defective investigation.1232.,
[s 376.16] Rape and conspiracy for rape.—,
The four accused persons used their affluence and pretensions for friendship and,
thereby lured innocent schoolgirls and then sexually exploited them and subjected,
"them to rape. Two of them actually committed acts of rape, the third made overtures to",
"one of the victims and the fourth, being a driver, conveyed them to the farmhouse",
where they were exploited. Their acts were proved by witnesses. Two of them were,
"convicted under section 376. The third and the forth, though committed no act of rape,",
"were convicted under section 376 read with section 120-B (conspiracy), it being not",
necessary that all co-conspirators should act in a similar manner. Their life sentence,
was reduced to 10 years of RI.1233.,
[s 376.17] CASES.—Charge not proved.—,
"Where the evidence of prosecutrix contradicts as to time and offence, and when the",
"medical and FSL reports did not support the prosecution case, Supreme Court held that",
the acquittal is proper.1234. Where the age of the victim was doubtful and she stated,
that without her consent the accused did something to her which he ought not to have,
"done but not disclosing what he actually did, it was held that it could not be inferred",
that the accused had committed rape on her. It was held that conviction of the accused,
under section 376 was rightly set aside.1235.,
The prosecutrix was an educated woman and employed. She went in the jeep of the,
accused at night for a long distance intending to meet her senior officer. She alleged,
that she was raped by the accused in his house when they halted there. This was,
wholly unusual conduct. There was no explanation of any compelling reason for,
meeting the officer at night. There were no stains of semen or blood on her clothes.,
She asserted virginity but medical evidence showed that she was habituated to sex.,
The accused was held to be entitled to benefit of doubt.1236.,
Two persons were charged and prosecuted under section 376(2)(g) for gang raping a,
"girl. The victim was desirous of marrying one of them and, therefore, did not report the",
matter willingly. There were various infirmities in the prosecution evidence. The,
conviction of the accused for the aforesaid offence was set aside.1237.,
[s 376.18] Unchaste woman.—,
The Supreme Court has laid down that the unchastity of a woman does not make her,
"""open to any and every person to violate her person as and when he wishes. Merely",
"because she is a woman of easy virtue, her evidence cannot be thrown overboard. At",
the most the officer called upon to evaluate her evidence would be required to,
administer caution unto himself before accepting her evidence.1238. Where in a,
"prosecution for gang rape, the prosecutrix did not make any complaint to anybody for",
"five days giving false explanation for delay, the doctor found no injury on any part of her",
"body and she was found to be a lady of immoral character or of lax morals, it was held",
that it was unsafe to rely on her evidence.1239. The Supreme Court has held that the,
mere fact that the prosecutrix was of loose moral character and was used to sexual,
"intercourse and might have gone to the accused herself, were not grounds to disbelieve",
"her statement. Such facts could demolish the case of abduction. But the prosecutrix,",
"being of 10–11 years of age, was not capable of giving consent for abusing her",
sexually. The conviction of the accused was restored.1240.,
"According to the Supreme Court, it is not a ground for acquittal of the accused that the",
prosecutrix was not having a good character and was a girl of easy virtues.1241.,
"[s 376.19] The proviso removed by Criminal Law (Amendment) Act, 2013.—",
"The proviso to section 376(2) IPC, 1860 laid down that the Court may, for adequate and",
"special reasons to be mentioned in the judgment, impose sentence of imprisonment of",
either description for a term of less than 10 years. This proviso is now removed by,
"Criminal Law (Amendment) Act, 2013 in the wake of increasing crimes against women.",
"It is, therefore, no longer possible to plead for any mitigating circumstances for",
reducing the quantum of punishment.,
"Where a person took away his niece under the promise of providing her a job, and",
"completely believing his trust, raped her in a beastly manner, the Court said that no",
"further leniency could be shown to him and, therefore, the sentence of seven years' RI",
and a fine of Rs. 2000 was to be maintained.1242.,
A defenceless married woman was tricked out of her house taking advantage of the,
drunken state of her husband. She was ravished in a most dastardly manner by three,
out of six members of the gang. All the three were awarded the maximum penalty of,
life-term by the Courts below. Only one came up in appeal before the Supreme Court.,
The Court said that no leniency could be shown to any one of them. The single,
appellant could not be treated differently from others who were serving their life,
sentence.1243.,
[s 376.19.1] Incest.—,
The accused had lost contact with his daughter when she was very young. They met,
again when she was 23 and they were both alcoholics. The incest started when the,
"daughter was 24 and continued for three years, during which time she gave birth to",
their child. It was held that the offence as aggravated by the duration of the,
"relationship, the fact that a child was born and that the incest continued before, during",
and after the pregnancy. The sentencing judge had given due weight to the accused's,
"depression, alcoholism and contrition, The sentence of 2½ years was considered to be",
"alright. However, there was no justification for the extended licence period it was not",
possible to conclude that the normal licence period would be inadequate to prevent,
"recommission, having regard to other ways in which contact with the daughter could be",
prevented.1244..,
[s 376.20] Rape and grievous hurt.—,
The victim girl aged seven years was in the care and custody of the accused and the,
natural and unnatural sexual acts were committed by him over a period of time. The,
injuries which were caused by the accused on the day of the incident were either on the,
skull or the hand or the thumb and therefore could not have been the reason for which,
death had occurred. In such a situation the liability of the accused for the commission,
"of the offence under section 302, IPC, 1860 would remain in serious doubt. The",
"accused should be held liable for the offence under section 325, IPC, 1860. Thus, the",
Court while maintaining the conviction and sentences awarded under sections 376 (2),
"(f) and 377, IPC, 1860 altered the conviction under section 302, IPC, 1860 to one under",
"section 325, IPC, 1860. Accordingly, the death penalty was set aside and punishment of",
RI for seven years was imposed.1245.,
[s 376.21] Jurisdiction.—,
The offence was completed at the place of kidnapping. The girl was carried to some,
other place where the ultimate purpose of raping her by several persons was,
accomplished. The Court said that the offences in question were a series of acts so,
connected together as to form part of the same transaction within the meaning of,
"section 223(d), Cr PC, 1973. All of them could be tried at the place of kidnapping.1246.",
The offence is not compoundable. It has been held that a compromise cannot be a,
factor in reduction of quantum of punishment.1247.,
[s 376.22] Trial-in-camera.—,
An application for trial-in-camera without disclosing the name of the applicant was,
allowed and her father was not allowed to seek quashing of the complaint in the,
interest of family honour.1248.,
[s 376.23] Offences comparable to rape and indecent assault.—,
The accused appealed against a sentence of nine years' imprisonment imposed,
"following his guilty plea to causing a nuisance to the public by making threatening,",
obscene and malicious telephone calls. He had made about 1000 telephone calls over,
a two weeks' period to 15 complainants. The calls had been made for his sexual,
gratification and had involved him ordering his victims to perform sexual acts against,
"themselves, under threat of rape or serious physical injury. He had a record of previous",
convictions for using the telephone system to send offensive and indecent matter.,
It was held that the sentencing judge was entitled to conclude that the offences,
committed by the accused had been comparable to rape and indecent assault. His,
"previous convictions, together with the pre-sentence report and a psychiatric report,",
also demonstrated that he presented a continuing and escalating danger to women.,
"Accordingly, the sentence imposed was not excessive.1249.",
[s 376.24] Probation.—,
The refusal to grant probation to the person found guilty of rape has been held to be,
proper.1250.?,
Assistance to Rape Victims : Supreme Court Guidelines,
"In Delhi Domestic Working Women's Forum v UOI,1251. the Supreme Court found that in",
"the cases of rape, the investigating agency as well as the Subordinate Courts",
"sometimes adopt totally an indifferent attitude towards the prosecutrix and therefore,",
the Supreme Court issued following directions in order to render assistance to the,
victims of rape:,
(1) The complainants of sexual assault cases should be provided with legal representation.,
It is important to have someone who is well-acquainted with the criminal justice system.,
The role of the victim's advocate would not only be to explain to the victim the nature of the,
"proceedings, to prepare her for the case and to assist her in the police station and in Court",
but to provide her with guidance as to how she might obtain help of a different nature from,
"other agencies, for example, mind counselling or medical assistance. It is important to",
secure continuity of assistance by ensuring that the same person who looked after the,
complainant's interests in the police station represents her till the end of the case.,
(2) Legal assistance will have to be provided at the police station since the victim of sexual,
"assault might very well be in a distressed state upon arrival at the police station, the",
guidance and support of a lawyer at this stage and whilst she was being questioned would,
be of great assistance to her.,
(3) The police should be under a duty to inform the victim of her right to representation,
before any questions were asked of her and that the police report should state that the,
victim was so informed.,
(4) A list of advocates willing to act in these cases should be kept at the police station for,
victims who did not have a particular lawyer in mind or whose own lawyer was unavailable.,
"(5) The advocate shall be appointed by the Court, upon application by the police at the",
"earliest convenient moment, but in order to ensure that victims were questioned without",
"undue delay, advocates would be authorised to act at the police station before leave of the",
Court was sought or obtained.,
"(6) In all rape trials anonymity of the victim must be maintained, as far as necessary.",
"(7) It is necessary, having regard to the Directive Principles contained under Article 38(1) of",
the Constitution of India to set up Criminal Injuries Compensation Board. Rape victims,
"frequently incur substantial financial loss. Some, for example, are too traumatised to",
continue in employment.,
(8) Compensation for victims shall be awarded by the Court on conviction of the offender,
and by the Criminal Injuries Compensation Board whether or not a conviction has taken,
"place. The Board will take into account pain, suffering and shock as well as loss of earnings",
due to pregnancy and the expenses of child birth if this occurred as a result of the rape.,
"In addition thereto, it is an obligation on the part of the State authorities and",
"particularly, the Director General of Police and Home Ministry of the State to issue",
proper guidelines and instructions to the other authorities as how to deal with such,
"cases and what kind of treatment is to be given to the prosecutrix, as a victim of sexual",
assault requires a totally different kind of treatment not only from the society but also,
from the State authorities. Certain care has to be taken by the Doctor who medically,
examines the victim of rape. The victim of rape should generally be examined by a,
"female doctor. Simultaneously, she should be provided the help of some psychiatric.",
The medical report should be prepared expeditiously and the Doctor should examine,
"the victim of rape thoroughly and give his/her opinion with all possible angle, e.g.,",
"opinion regarding the age taking into consideration the number of teeth, secondary sex",
"characters, and radiological test, etc. The Investigating Officer must ensure that the",
"victim of rape should be handled carefully by lady police official/officer, depending",
upon the availability of such official/officer. The victim should be sent for medical,
examination at the earliest and her statement should be recorded by the IO in the,
presence of her family members making the victim comfortable except in incest cases.,
Investigation should be completed at the earliest to avoid the bail to the accused on,
"technicalities as provided under section 167 Cr PC, 1973 and final report should be",
"submitted under section 173 Cr PC, 1973 at the earliest.",
[Dilip v State of MP. 1252.],
"1172. Subs. by Act 43 of 1983, section 3, for the heading ""Of rape"" (w.e.f. 25 December 1983).",
"1204. Subs. by the Criminal Law (Amendment) Act, 2013 (13 of 2013), section 9 (w.e.f. 3",
"February 2013). Earlier section 376 was substituted by Act 43 of 1983, section 3 (w.e.f. 25",
"December 1983). Section 376, before substitution by Act 13 of 2013, stood as under:",
"[s 376] Punishment for rape.—(1) Whoever, except in the cases provided for by sub-section (2),",
commits rape shall be punished with imprisonment of either description for a term which shall,
not be less than seven years but which may be for life or for a term which may extend to ten,
years and shall also be liable to fine unless the women raped is his own wife and is not under,
"twelve years of age, in which cases, he shall be punished with imprisonment of either",
description for a term which may extend to two years or with fine or with both:,
"Provided that the court may, for adequate and special reasons to be mentioned in the judgment,",
impose a sentence of imprisonment for a term of less than seven years.,
"(2) Whoever,—",
(a) being a police officer commits rape—,
(i) within the limits of the police station to which he is appointed; or,
(ii) in the premises of any station house whether or not situated in the police station,
to which he is appointed; or,
(iii) on a woman in his custody or in the custody of a police officer subordinate to,
him; or,
"(b) being a public servant, takes advantage of his official position and commits rape on a",
woman in his custody as such public servant or in the custody of a public servant,
subordinate to him; or,
"(c) being on the management or on the staff of a jail, remand home or other place of",
custody established by or under any law for the time being in force or of a woman's or,
children's institution takes advantage of his official position and commits rape on any,
"inmate of such jail, remand home, place or institution; or",
"(d) being on the management or on the staff of a hospital, takes advantage of his official",
position and commits rape on a woman in that hospital; or,
(e) commits rape on a woman knowing her to be pregnant; or,
(f) commits rape on a woman when she is under twelve years of age; or,
"(g) commits gang rape,",
shall be punished with rigorous imprisonment for a term which shall not be less than ten years,
but which may be for life and shall also be liable to fine:,
"Provided that the Court may, for adequate and special reasons to be mentioned in the judgment,",
impose a sentence of imprisonment of either description for a term of less than ten years.,
Explanation 1.—Where a woman is raped by one or more in a group of persons acting in,
"furtherance of their common intention, each of the persons shall be deemed to have committed",
gang rape within the meaning of this sub-section.,
"Explanation 2.—""Women's or children's institution"" means an institution, whether called an",
"orphanage or a home for neglected women or children or a widows' home or by any other name,",
which is established and maintained for the reception and care of woman or children.,
"Explanation 3.—""Hospital"" means the precincts of the hospital and includes the precincts of any",
institution for the reception and treatment of persons during convalescence or of persons,
requiring medical attention or rehabilitation.,
"1205. Subs. by Act 22 of 2018, section 4(a), for ""shall not be less than seven years, but which",
"may extend to imprisonment for life, and shall also be liable to fine"" (w.r.e.f. 21-4-2018).",
"1206. Clause (i) omitted by Act 22 of 2018, section 4(b) (w.r.e.f. 21-4-2018). Clause (i), before",
"omission, stood as under:",
"""(i) commits rape on a woman when she is under sixteen years of age; or"".",
"1207. Ins. by Act 22 of 2018, section 4(c) (w.r.e.f. 21-4-2018).",
"1208. Tukaram, 1978 Cr LJ 1864 : AIR 1979 SC 185 [LNIND 1978 SC 254] .",
"1209. Bharwada Bhoginbhai Hirjibhai, 1983 Cr LJ 1096 (SC) : AIR 1983 SC 753 [LNIND 1983 SC",
161] : (1983) 3 SCC 753 : 1983 SCC (Cr) 728.,
"1210. Ram Charan v State of MP, 1993 Cr LJ 1825 (MP); Saifuddin v UOI, 2002 Cr LJ 3159 (J&K)",
dismissal of army man from service on account of rape which was proved. No interference.,
"1211. Ram Kala, 47 Cr LJ 611 (All).",
"1212. SP Kohil, 1978 Cr LJ 1804 : AIR 1978 SC 1753 [LNIND 1978 SC 235] . Followed in",
"Panibhusan Behera v State of Orissa, (1995) 2 Cr LJ 1561 (Ori). Where there was no other",
"evidence of either enticement or rape, the mere presence of semen stains on the frock of the",
"alleged victim was held to be not sufficient for conviction; Mahesh Kumar Bherulal v State of MP,",
"(1995) 2 Cr LJ 2021 (MP). Y Srinivasa Rao v State of AP, (1995) 2 Cr LJ 1597 (AP), no medical",
"evidence that any forced act was committed on the prosecutrix. Rahim Beg v State of UP, AIR",
"1973 SC 343 : 1972 Cr LJ 1260 , held that semen stain on the 'langot' of a young man can exist",
because of a variety of reasons and would not necessarily connect him with the offence of rape.,
"1213. Tameezuddin v State (NCT) of Delhi, (2009) 15 SCC 566 [LNINDORD 2009 SC 430] . Raju v",
"State of MP, AIR 2009 SC 858 [LNIND 2008 SC 2358] , recovery of stained underwear of the",
"accused, could not by itself support the allegation of rape. Pawan v State of Uttaranchal, (2009)",
"15 SCC 259 [LNIND 2009 SC 464] : (2009) 3 All LJ 637 : 2009 Cr LJ 2257 , semen stains found",
on the underwear of the accused labourers as supported by other circumstances were held,
sufficient to lead to conviction.,
"1214. Lillu @ Rajesh v State of Haryana, AIR 2013 SC 1784 [LNIND 2013 SC 435] : 2013 (6) Scale",
17 [LNIND 2013 SC 435] .,
"1215. State of UP v Pappu @ Yunus, AIR 2005 SC 1248 : 2005 (3) SCC 594 ; Aman Kumar v State",
"of Haryana, AIR 2004 SC 1497 [LNIND 2004 SC 184] : 2004 (4) SCC 379 [LNIND 2004 SC 184] .",
"1216. Vijay alias Chinee v State of MP, 2010 (8) SCC 191 [LNIND 2010 SC 659] : 2010 AIR SCW",
"5510, State of Maharashtra v Chandraprakash Kewal Chand Jain, 1990 (1) SCC 550 [LNIND 1990",
SC 26] : 1990 Cr LJ 889 .,
"1217. State of UP v Munshi, AIR 2009 SC 370 [LNIND 2008 SC 1717] : 2008 (9) SCC 390 [LNIND",
2008 SC 1717] .,
"1218. Narender Kumar v State (NCT of Delhi), AIR 2012 SC 2281 [LNIND 2012 SC 347] : 2012 (5)",
Scale 657 [LNIND 2012 SC 347] .,
"1219. Rajoo v State of MP, AIR 2009 SC 858 [LNIND 2008 SC 2358] .",
"1220. State of Maharashtra v Madhukar Narayan Mardikar, AIR 1991 SC 207 [LNIND 1990 SC",
"610] ; State of Punjab v Gurmit Singh, AIR 1996 SC 1393 [LNIND 1996 SC 2903] ; and State of UP",
"v Pappu @ Yunus, AIR 2005 SC 1248 .",
"1221. Section 146 of the Indian Evidence Act, 1872 has been further amended vide the Criminal",
"Law (Amendment) Act, 2018. In section 146 of the Evidence Act, in the proviso, for the words,",
"figures and letters ""section 376A, section 376B, section 376C, section 376D"", the words, figures",
"and letters ""section 376A, section 376AB, section 376B, section 376C, section 376D, section",
"376DA, section 376DB"" have been substituted",
"1222. State of Karnataka v Mahabaleshwar Gourya Naik, AIR 1992 SC 2043 : 1992 Cr LJ 3786 .",
"1223. Pratap Misra v State of Orissa, 1977 (3) SCC 41 .",
"1224. Lalliram v State of MP, 2008 (10) SCC 69 [LNIND 2008 SC 1833] : 2008 (12) Scale 491",
"[LNIND 2008 SC 1833] ; Aman Kumar v State of Haryana, 2004 (4) SCC 379 [LNIND 2004 SC 184]",
.,
"1225. Gurcharan Singh v State of Haryana, AIR 1972 SC 2661 [LNIND 1972 SC 433] : 1972 (2)",
"SCC 749 [LNIND 1972 SC 433] ; Shri Bodhisattwa Gautam v Miss Subhra Chakraborty, AIR 1996",
SC 922 [LNIND 1995 SC 1314] : 1996 (1) SCC 490 [LNIND 1995 SC 1314] .,
"1226. Rameshwar, (1952) SCR 377 [LNIND 1951 SC 76] : AIR 1952 SC 54 [LNIND 1951 SC 76] ;",
"Sidheswar Ganguly, AIR 1958 SC 143 [LNIND 1957 SC 108] . Karnel Singh v State of MP, AIR 1995",
"SC 2472 [LNIND 1995 SC 776] : 1995 Cr LJ 4173 , the sole testimony of the prosecutrix",
"corroborated by medical evidence found reliable, conviction of the accused under section 375",
"upheld; Dharma v Nirmal Singh Bittu, AIR 1996 SC 1136 [LNIND 1996 SC 272] : 1996 Cr LJ 1631 ,",
"where the accused was found guilty of attempt to rape and committing murder of his victim, the",
Supreme Court set aside the acquittal of the accused and sentenced him to life imprisonment.,
"Sri Narayan Saha v State of Tripura, (2004) 7 SCC 775 [LNIND 2004 SC 906] : AIR 2005 SC 1452",
"[LNIND 2004 SC 906] , conviction without corroboration permissible.",
"1227. Rafiq, 1980 Cr LJ 1344 : AIR 1981 SC 96 [LNIND 1980 SC 331] . State of Karnataka v Raju,",
(2007) 11 SCC 490 [LNIND 2007 SC 1074] : AIR 2007 SC 3225 [LNIND 2007 SC 1074] : 2007 Cr,
"LJ 4700 , evidence of the victim appearing to be probable. The court exposed the",
impermissibility of insistence by the accused on corroboration of the testimony. No accused,
can cling to a fossil formula and insist on corroboration even if the case taken as a whole,
strikes to the judicial mind as probable. Judicial response to human rights cannot be allowed to,
"be blunted by legal jugglery. Shrawan v State of Maharashtra, (2006) 13 SCC 191 , the allegation",
of rape of the woman and assault on her husband when the latter went to the house of the,
"accused to protest, police antipathy, alleged facts seemed to be true, conviction and sentence",
upheld.,
"1228. Bharwada Bhoginbhai Hirjibhai, 1983 Cr LJ 1096 : AIR 1983 SC 753 [LNIND 1983 SC 161] :",
"(1983) 3 SCC 217 [LNIND 1983 SC 161] . Satpal v State of Rajasthan, 2001 Cr LJ 564 (Raj),",
corroboration is not required as a rule. The fact of a litigation between the complainant and,
accused families was not material because a father would not involve his daughter into such a,
"bad role. Laxman Dass v State of Rajasthan, 2001 Cr LJ 4501 , corroboration not considered",
"necessary, injuries on person though not on private part, conviction. Gurmit Singh case was",
"followed in State of Karnataka v Manjanna, AIR 2000 SC 2231 [LNIND 2000 SC 812] : 2000 Cr LJ",
"3471 here also acquittal was set aside, the court saying that the conclusion of the court below",
regarding reaction of the victim and her mother and delay in lodging the FIR was contrary to,
"evidence. Visweswaran v State of TN, 2003 Cr LJ 2548 (SC), rape by accused constable in hotel",
"room, no identification by the victim, but the room was booked by him, he was arrested at the",
hotel premises and he was not able to explain his whereabouts at about the time of offence.,
The court said that these circumstances sufficiently made him out.,
"1229. Swati Lodha v State of Rajasthan, 1991 Cr LJ 939 (Raj).",
"1230. Ramdas v State of Maharashtra, (2007) 2 SCC 170 [LNIND 2006 SC 928] : AIR 2007 SC",
"155 [LNIND 2006 SC 928] . Narayan v State of Rajasthan, (2007) 6 SCC 465 [LNIND 2007 SC 456]",
": 2007 Cr LJ 2733 , testimony of the prosecutrix found to be not believable, no conviction on that",
"basis. State of Punjab v Ramdev Singh, AIR 2004 SC 1290 [LNIND 2003 SC 1106] ; State of",
"Chhattisgarh v Derha, (2004) 9 SCC 699 [LNIND 2004 SC 535] ; State of HP v Shree Kant Shekari,",
AIR 2004 SC 4404 [LNIND 2004 SC 921] . Medical evidence that the victim showed signs of,
"previous sexual intercourse, the court said it would not have any adverse effect on her",
"testimony. It could not be a ground for acquitting the rapist. Wahid Khan v State of MP, (2010) 1",
"SCC Cr 1208 : (2010) 2 SCC 9 [LNIND 2009 SC 2041] : AIR 2010 SC 1 [LNIND 2009 SC 2041] ,",
evidence of prosecutrix stands on equal footing with that of an injured witness and if it inspires,
"confidence, corroboration is not necessary. The court noted the adverse things like social",
"repercussions, backward society, dangers of being ostracized, difficulties of rehabilitation and",
"survival, psychology not to admit adverse unless it was a fact. A 12-year-old girl was the victim",
"in this case, being taken away by the accused in auto-rickshaw.",
"1231. State of HP v Sanjay Kumar, 2016 (4) Crimes 424 (SC) : 2016 (12) Scale 831 .",
"1232. Visveswaran v State of TN, AIR 2003 SC 2471 [LNIND 2003 SC 481] , imprisonment for a",
"period of seven years and fine of Rs. 10,000 was affirmed.",
"1233. Moijullah v State of Rajasthan, (2004) 2 SCC 90 [LNIND 2003 SC 1143] : AIR 2004 SC 3186",
[LNIND 2003 SC 1143] .,
"1234. State v Babu Meena, AIR 2013 SC 2207 [LNIND 2013 SC 114] : (2013) 4 SCC 206 [LNIND",
"2013 SC 114] ; Rajesh Patil v State of Jharkhand, 2013 Cr LJ 2062 (SC); delay coupled with non-",
examination of doctor and IO created reasonable doubt in the prosecution story.,
"1235. State of Karnataka v Sureshbabu Puk Raj Porral, 1994 Cr LJ 1216 .",
"1236. Sudhansif Sekhar Sahoo v State of Orissa, AIR 2003 SC 2136 [LNIND 2002 SC 832] . The",
Supreme Court expressed the opinion that sole testimony is not to be relied upon unless it is,
"safe, reliable and worthy of acceptance. State of Punjab v Chatinder Pal Singh, (2008) 17 SCC 90",
"[LNINDORD 2008 SC 308] : AIR 2009 SC 974 [LNINDORD 2008 SC 308] , prosecution witnesses",
"going back upon their statements, two inconsistent dying declaration, when two courts on",
"analysis of evidence found the accused not guilty, no scope for interference.",
"1237. Shatrughan v State of MP, 1993 Cr LJ 120 (MP). Thomas v State of Kerala, 1999 Cr LJ 1297",
"(Ker), accused committed forced sex from behind, medical opinion that such act was possible",
"by use of force. Offence proved and conviction upheld. State of Rajasthan v Om Prakash, AIR",
"2002 SC 2235 [LNIND 2002 SC 370] (Supp), charge proved, non-examination of witnesses other",
"than family members was immaterial. Fota v State of Rajasthan, 1999 Cr LJ 1677 (Raj), charge",
"of rape found to be false, one of the reasons for the finding being that the father of the girl had",
"compromised with the alleged rapist, this could not be probable. State of Punjab v Gurdeep",
"Singh, 1999 Cr LJ 4597 : (2000) 8 SCC 547 [LNIND 2000 SC 1292] , the only evidence was that",
"the accused was seen by a relative of the girl chasing her in a drunken state, but he did nothing,",
"not enough to connect that man with rape and murder. Suresh N Bhusane v State of Maharashtra,",
"1998 Cr LJ 4559 : AIR 1998 SC 3131 [LNIND 1998 SC 733] , voluntary conduct rather than",
"forcible lifting, charge of rape not proved. Prahlad Singh v State of MP, 1997 Cr LJ 4078 : AIR",
"1997 SC 3442 [LNIND 1997 SC 1080] , fact of rape established, but the accused could not be",
"identified by the victim girl. Acquittal. Prakash Sakharam Mandale v State of Maharashtra, 1997",
"Cr LJ 4199 (Bom), the victim's age could not be established beyond doubt. She remained silent",
about her age. This fact spoke of her connivance. Acquittal.,
"1238. State of Maharashtra v Madhukar N Mardikar, (1991) 1 SCC 57 [LNIND 1990 SC 610] : AIR",
1991 SC 207 [LNIND 1990 SC 610] . For a review of case—law on the need for corroboration see,
"State of Maharashtra v Kalgya Kale, 1989 Cr LJ 1389 (Bom). See also Daler Singh v State of",
"Haryana, (1995) 1 Cr LJ 614 (P&H), no implicit reliance can be placed upon the testimony of a",
prosecutrix who is a woman of easy virtue and seems to be consenting. There were other,
"infirmities also in the evidence tendered, hence acquittal.",
"1239. Banti v State of MP, 1992 Cr LJ 715 (MP). Mohan v State of MP, 2001 Cr LJ 3046 (MP), it is",
no defence that the girl was used for sex. The spontaneity in disclosure of the incident by the,
prosecurtix has a greater value as res gestae. It is substantive evidence.,
"1240. State of UP v Om, 1999 Cr LJ 5030 : 1998 SCC (Cr) 1343. Milind Ambadas Mhaske v State,",
"1998 Cr LJ 357 (Bom), bad character of the prosecutrix does not enable the accused to escape",
"from his culpability. Grown-up married woman having two children, consent could not be",
"inferred from the absence of injuries on private part. Sanju Gupta v State of Orissa, 1998 Cr LJ",
"1684 (Ori), a woman may be of immoral character, persons forcing her to sex against her will",
would be guilty of rape.,
"1241. State of UP v Pappu, 2005 Cr LJ 331 : AIR 2005 SC 1248 : (2005) 3 SCC 594 .",
"1242. Maguni Ranjan Jyoti v State of Orissa, 2003 Cr LJ 530 (Ori).",
"1243. Ramesh Kumar v State of Haryana, (2008) 5 SCC 139 [LNIND 2008 SC 508] . Viswanathan",
"v State, (2008) 5 SCC 354 [LNIND 2008 SC 999] : AIR 2008 SC 2222 [LNIND 2008 SC 999] ,",
version of the victim and her brother was corroborated by material objects medical evidence,
"and dispositions, accused persons carried away the victim to an isolated place and subjected",
"her to rape, clearly showed their common intention of gang rape.",
"1244. R v DM (Incest : Sentencing), (2002) EWCA Crim 1702 : (2003) 1 Cr App R (S) 59 [CA (Crim",
"Div)]; Ram Kumar v State of MP, 2003 Cr LJ (NOC) 18 (MP) : (2002) 3 MPH7 111, rape on the",
"accused's own minor daughter. She stood cross-examination, she could not cry out because she",
"was in helpless situation, conviction was based solely on her testimony. Neel Kumar v State of",
"Haryana, (2012) 5 SCC 766 [LNIND 2012 SC 298] : 2012 (5) Scale 185 [LNIND 2012 SC 298];",
Rape and murder of his own four-year daughter by the appellant; Death sentence liable to be set,
aside and life imprisonment awarded. The appellant must serve a minimum of 30 years in jail,
without remissions.,
"1245. Rajesh v State of MP, AIR 2017 SC 532 [LNINDORD 2016 SC 11435] .",
"1246. Praveen v State of Maharashtra, 2001 Cr LJ 3417 (Bom).",
"1247. Mangilal v State of MP, 1998 Cr LJ 2304 (MP).",
"1248. Trilochan Singh Johar v State, 2002 Cr LJ 528 (Del).",
"1249. R v Eskdale (Stuart Anthony), (2002) 1 Cr App R (S) 28, [CA (Crim Div)].",
"1250. State of MP v Babulal, (2008) 1 SCC 234 [LNIND 2007 SC 1400] : AIR 2008 SC 582 [LNIND",
2007 SC 1400] : 2008 Cr LJ 714 .,
"1251. Delhi Domestic Working Women's Forum v UOI, (1995) 1 SCC 14 [LNIND 1994 SC 1582] .",
"1252. Dilip v State of MP, 2013 Cr LJ 2446 (SC).",
"The Indian Penal Code (PB), 36th ed",
"Ratanlal & Dhirajlal: Indian Penal Code (PB) / 1253. Subs. by the Criminal Law (Amendment) Act, 2013 (13",
"of 2013), section 9 (w.e.f. 3 February 2013). Earlier section 376A was substituted by Act 43 of 1983,",
"section 3 (w.e.f. 25-12-1983). Section 376A, before substitution by Act 13 of 2013, stood as under: [s 376A]",
"Intercourse by a man with his wife during separation.—Whoever has sexual intercourse with his own wife,",
who is living separately from him under a decree of separation or under any custom or usage without her,
consent shall be punished with imprisonment of either description for a term which may extend to two,
years and shall also be liable to fine. [s 376A] Punishment for causing death or resulting in persistent,
vegetative state of victim.,
Currency Date: 28 April 2020,
© 2020 LexisNexis,
THE INDIAN PENAL CODE,
CHAPTER XVI OF OFFENCES AFFECTING THE HUMAN BODY OF,
OFFENCES AFFECTING LIFE,
1172.,
[Sexual Offences],
1253.[s 376A] Punishment for causing death or resulting in persistent,
vegetative state of victim.,
"Whoever, commits an offence punishable under sub-section (1) or sub-section (2) of",
section 376 and in the course of such commission inflicts an injury which causes the,
"death of the woman or causes the woman to be in a persistent vegetative state, shall",
be punished with rigorous imprisonment for a term which shall not be less than,
"twenty years, but which may extend to imprisonment for life, which shall mean",
"imprisonment for the remainder of that person's natural life, or with death.]",
"1172. Subs. by Act 43 of 1983, section 3, for the heading ""Of rape"" (w.e.f. 25 December 1983).",
"1253. Subs. by the Criminal Law (Amendment) Act, 2013 (13 of 2013), section 9 (w.e.f. 3",
"February 2013). Earlier section 376A was substituted by Act 43 of 1983, section 3 (w.e.f. 25-12-",
"1983). Section 376A, before substitution by Act 13 of 2013, stood as under:",
[s 376A] Intercourse by a man with his wife during separation.—Whoever has sexual intercourse,
"with his own wife, who is living separately from him under a decree of separation or under any",
custom or usage without her consent shall be punished with imprisonment of either description,
for a term which may extend to two years and shall also be liable to fine.,
"The Indian Penal Code (PB), 36th ed",
"Ratanlal & Dhirajlal: Indian Penal Code (PB) / 1254. Ins. by Act 22 of 2018, section 5 (w.r.e.f. 21-4-2018). [s",
376AB] Punishment for rape on woman under twelve years of age.,
Currency Date: 28 April 2020,
© 2020 LexisNexis,
THE INDIAN PENAL CODE,
CHAPTER XVI OF OFFENCES AFFECTING THE HUMAN BODY OF,
OFFENCES AFFECTING LIFE,
1172.,
[Sexual Offences],
1254.[s 376AB] Punishment for rape on woman under twelve years of age.,
"Whoever, commits rape on a woman under twelve years of age shall be punished with",
"rigorous imprisonment for a term which shall not be less than twenty years, but which",
"may extend to imprisonment for life, which shall mean imprisonment for the",
"remainder of that person's natural life, and with fine or with death:",
Provided that such fine shall be just and reasonable to meet the medical expenses and,
rehabilitation of the victim:,
Provided further that any fine imposed under this section shall be paid to the victim.,
"1172. Subs. by Act 43 of 1983, section 3, for the heading ""Of rape"" (w.e.f. 25 December 1983).",
"1254. Ins. by Act 22 of 2018, section 5 (w.r.e.f. 21-4-2018).",
"The Indian Penal Code (PB), 36th ed",
"Ratanlal & Dhirajlal: Indian Penal Code (PB) / 1255. Subs. by the Criminal Law (Amendment) Act, 2013 (13",
"of 2013), section 376B (w.e.f. 3-2-2013). Earlier section 376B was substituted by Act 43 of 1983, section 3",
"(w.e.f. 25-12-1983). Section 376B, before substitution by Act 13 of 2013, stood as under: “[s 376B]",
"Intercourse by public servant with woman in his custody.—Whoever, being a public servant, takes",
"advantage of his official position and induces or seduces, any woman, who is in his custody as such public",
"servant or in the custody of a public servant subordinate to him, to have sexual intercourse with him, such",
"sexual intercourse not amounting to the offence of rape, shall be punished with imprisonment of either",
description for a term which may extend to five years and shall also be liable to fine”. [[s 376-B] Sexual,
intercourse by husband upon his wife during separation.,
Currency Date: 28 April 2020,
© 2020 LexisNexis,
THE INDIAN PENAL CODE,
CHAPTER XVI OF OFFENCES AFFECTING THE HUMAN BODY OF,
OFFENCES AFFECTING LIFE,
1172.,
[Sexual Offences],
1255.[[s 376-B] Sexual intercourse by husband upon his wife during separation.,
"Whoever has sexual intercourse with his own wife, who is living separately, whether",
"under a decree of separation or otherwise, without her consent, shall be punished with",
"imprisonment of either description, for a term which shall not be less than two years",
"but which may extend to seven years, and shall also be liable to fine.",
"Explanation.—In this section, ""sexual intercourse"" shall mean any of the acts",
mentioned in clauses (a) to (d) of section 375].,
COMMENT.—,
"At a trial for rape, the accused asked the judge to give his ruling on the point whether a",
husband could be convicted of raping his wife where the parties are living apart at the,
time. The judge held that the common law rule of marital exemption that a man cannot,
be guilty of raping his own wife applied to the facts. The report did not show the cause,
of their living apart.1256. This decision should be taken in the light of the declaration by,
the House of Lords that a husband can be guilty of raping his wife.1257. [Edited under,
"the preceding section under the heading ""Exception: Rape by Husband"".] The legislative",
intent in changes introduced in sections 375 and 376 and introduction of sections 376-,
A to 376-D in 1983 has been restated by the Supreme Court in Mohan Anna Chavan v,
State of Maharashtra.1258.,
"1172. Subs. by Act 43 of 1983, section 3, for the heading ""Of rape"" (w.e.f. 25 December 1983).",
"1255. Subs. by the Criminal Law (Amendment) Act, 2013 (13 of 2013), section 376B (w.e.f. 3-2-",
"2013). Earlier section 376B was substituted by Act 43 of 1983, section 3 (w.e.f. 25-12-1983).",
"Section 376B, before substitution by Act 13 of 2013, stood as under:",
"""[s 376B] Intercourse by public servant with woman in his custody.—Whoever, being a public",
"servant, takes advantage of his official position and induces or seduces, any woman, who is in",
"his custody as such public servant or in the custody of a public servant subordinate to him, to",
"have sexual intercourse with him, such sexual intercourse not amounting to the offence of rape,",
shall be punished with imprisonment of either description for a term which may extend to five,
"years and shall also be liable to fine"".",
"1256. R v J (Rape : Marital Exemption), (1991) 1 All ER 759 .",
"1257. R v R (Rape : Marital Exemption), (1991) 4 All ER 481 .",
"1258. Mohan Anna Chavan v State of Maharashtra, (2008) 7 SCC 561 [LNIND 2008 SC 1265] .",
"The Supreme Court also restated the meaning, consequences and egregiousness of the matters",
dealt with in the amendment.,
"The Indian Penal Code (PB), 36th ed",
"Ratanlal & Dhirajlal: Indian Penal Code (PB) / 1259. Subs. by Act 13 of 2013, section 9, for section 376C",
"(w.r.e.f. 3-2-2013). Earlier section 376C was substituted by Act 43 of 1983, section 3 (w.e.f. 25-12-1983).",
"Section 376C, before substitution by Act 13 of 2013, stood as under:: “[s 376C] Intercourse by",
"superintendent of jail, remand home, etc.—Whoever, being the superintendent or manager of a jail, remand",
home or other place of custody established by or under any law for the time being in force or of a woman’s,
or children’s institution takes advantage of his official position and induces or seduces any female inmate,
"of such jail, remand home, place or institution to have sexual intercourse with him, such sexual intercourse",
"not amounting to the offence of rape, shall be punished with imprisonment of either description for a term",
which may extend to five years and shall also be liable to fine. Explanation 1.—“Superintendent” in relation,
"to jail, remand home or other place of custody or a women’s or children’s institution includes a person",
"holding any other office in such jail, remand home, place or institution by virtue of which he can exercise",
any authority or control over its inmates. Explanation 2.—The expression “women’s or children’s institution”,
shall have the same meaning as in Explanation 2 to sub-section (2) of section 376.” [s 376C] Sexual,
intercourse by a person in authority.,
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© 2020 LexisNexis,
THE INDIAN PENAL CODE,
CHAPTER XVI OF OFFENCES AFFECTING THE HUMAN BODY OF,
OFFENCES AFFECTING LIFE,
1172.,
[Sexual Offences],
1259.[s 376C] Sexual intercourse by a person in authority.,
"Whoever, being—",
(a) in a position of authority or in a fiduciary relationship; or,
(b) a public servant; or,
"(c) superintendent or manager of a jail, remand home or other place of custody",
"established by or under any law for the time being in force, or a women's or",
children's institution; or,
"(d) on the management of a hospital or being on the staff of a hospital,",
abuses such position or fiduciary relationship to induce or seduce any woman,
either in his custody or under his charge or present in the premises to have,
"sexual intercourse with him, such sexual intercourse not amounting to the",
"offence of rape, shall be punished with rigorous imprisonment of either",
"description for a term which shall not be less than five years, but which may",
"extend to ten years, and shall also be liable to fine.",
"Explanation 1.—In this section, ""sexual intercourse"" shall mean any of the acts",
mentioned in clauses (a) to (d) of section 375.,
"Explanation 2.—For the purposes of this section, Explanation 1 to section 375",
shall also be applicable.,
"Explanation 3.—""Superintendent"", in relation to a jail, remand home or other",
"place of custody or a women's or children's institution, includes a person",
"holding any other office in such jail, remand home, place or institution by virtue",
of which such person can exercise any authority or control over its inmates.,
"Explanation 4.—The expressions ""hospital"" and ""women's or children's",
"institution"" shall respectively have the same meaning as in Explanation to",
subsection (2) of section 376].,
"1172. Subs. by Act 43 of 1983, section 3, for the heading ""Of rape"" (w.e.f. 25 December 1983).",
"1259. Subs. by Act 13 of 2013, section 9, for section 376C (w.r.e.f. 3-2-2013). Earlier section",
"376C was substituted by Act 43 of 1983, section 3 (w.e.f. 25-12-1983). Section 376C, before",
"substitution by Act 13 of 2013, stood as under::",
"""[s 376C] Intercourse by superintendent of jail, remand home, etc.—Whoever, being the",
"superintendent or manager of a jail, remand home or other place of custody established by or",
under any law for the time being in force or of a woman's or children's institution takes,
"advantage of his official position and induces or seduces any female inmate of such jail,",
"remand home, place or institution to have sexual intercourse with him, such sexual intercourse",
"not amounting to the offence of rape, shall be punished with imprisonment of either description",
for a term which may extend to five years and shall also be liable to fine.,
"Explanation 1.—""Superintendent"" in relation to jail, remand home or other place of custody or a",
"women's or children's institution includes a person holding any other office in such jail, remand",
"home, place or institution by virtue of which he can exercise any authority or control over its",
inmates.,
"Explanation 2.—The expression ""women's or children's institution"" shall have the same meaning",
"as in Explanation 2 to sub-section (2) of section 376.""",
"The Indian Penal Code (PB), 36th ed",
"Ratanlal & Dhirajlal: Indian Penal Code (PB) / 1260. Subs. by Act 13 of 2013, section 9, for section 376D",
"(w.r.e.f. 3 February 2013). Earlier section 376D was substituted by Act 43 of 1983, section 3 (w.e.f. 25",
"December 1983). Section 376D, before substitution by Act 13 of 2013, stood as under: “[s 376D]",
Intercourse by any member of the management or staff of a hospital with any woman in that hospital.—,
"Whoever, being on the management of a hospital or being on the staff of a hospital takes advantage of his",
"position and has sexual intercourse with any woman in that hospital, such sexual intercourse not",
"amounting to the offence of rape, shall be punished with imprisonment of either description for a term",
which may extend to five years and shall also be liable to fine. Explanation.—The expression “hospital” shall,
have the same meaning as in Explanation 3 to sub-section (2) of section 376”. [s 376-D] Gang rape.,
Currency Date: 28 April 2020,
© 2020 LexisNexis,
THE INDIAN PENAL CODE,
CHAPTER XVI OF OFFENCES AFFECTING THE HUMAN BODY OF,
OFFENCES AFFECTING LIFE,
1172.,
[Sexual Offences],
1260.[s 376-D] Gang rape.,
Where a woman is raped by one or more persons constituting a group or acting in,
"furtherance of a common intention, each of those persons shall be deemed to have",
committed the offence of rape and shall be punished with rigorous imprisonment for a,
"term which shall not be less than twenty years, but which may extend to life which",
"shall mean imprisonment for the remainder of that person's natural life, and with fine:",
Provided that such fine shall be just and reasonable to meet the medical expenses and,
rehabilitation of the victim:,
Provided further that any fine imposed under this section shall be paid to the victim.],
COMMENT.—,
Sections 376-A–376-D inserted by the Act 43 of 1983 were sought to deal with such,
"cases which were not covered by section 376. They have thus, been inserted to meet a",
situation which was otherwise not provided for under section 376. These sections now,
"stand substituted by the Criminal Law (Amendment) Act, 2013.",
"1172. Subs. by Act 43 of 1983, section 3, for the heading ""Of rape"" (w.e.f. 25 December 1983).",
"1260. Subs. by Act 13 of 2013, section 9, for section 376D (w.r.e.f. 3 February 2013). Earlier",
"section 376D was substituted by Act 43 of 1983, section 3 (w.e.f. 25 December 1983). Section",
"376D, before substitution by Act 13 of 2013, stood as under:",
"""[s 376D] Intercourse by any member of the management or staff of a hospital with any woman in",
"that hospital.—Whoever, being on the management of a hospital or being on the staff of a",
hospital takes advantage of his position and has sexual intercourse with any woman in that,
"hospital, such sexual intercourse not amounting to the offence of rape, shall be punished with",
imprisonment of either description for a term which may extend to five years and shall also be,
liable to fine.,
"Explanation.—The expression ""hospital"" shall have the same meaning as in Explanation 3 to sub-",
"section (2) of section 376"".",
"The Indian Penal Code (PB), 36th ed",
"Ratanlal & Dhirajlal: Indian Penal Code (PB) / 1261. Ins. by Act 22 of 2018, section 6 (w.r.e.f. 21 April 2018).",
[[s 376DA] Punishment for gang rape on woman under sixteen years of age.,
Currency Date: 28 April 2020,
© 2020 LexisNexis,
THE INDIAN PENAL CODE,
CHAPTER XVI OF OFFENCES AFFECTING THE HUMAN BODY OF,
OFFENCES AFFECTING LIFE,
1172.,
[Sexual Offences],
1261.[[s 376DA] Punishment for gang rape on woman under sixteen years of,
age.,
Where a woman under sixteen years of age is raped by one or more persons,
"constituting a group or acting in furtherance of a common intention, each of those",
persons shall be deemed to have committed the offence of rape and shall be punished,
"with imprisonment for life, which shall mean imprisonment for the remainder of that",
"person's natural life, and with fine:",
Provided that such fine shall be just and reasonable to meet the medical expenses and,
rehabilitation of the victim:,
Provided further that any fine imposed under this section shall be paid to the victim.],
"1172. Subs. by Act 43 of 1983, section 3, for the heading ""Of rape"" (w.e.f. 25 December 1983).",
"1261. Ins. by Act 22 of 2018, section 6 (w.r.e.f. 21 April 2018).",
"The Indian Penal Code (PB), 36th ed",
"Ratanlal & Dhirajlal: Indian Penal Code (PB) / 1262. Ins. by Act 22 of 2018, section 6 (w.r.e.f. 21-4-2018). [[s",
376DB] Punishment for gang rape on woman under twelve years of age.,
Currency Date: 28 April 2020,
© 2020 LexisNexis,
THE INDIAN PENAL CODE,
CHAPTER XVI OF OFFENCES AFFECTING THE HUMAN BODY OF,
OFFENCES AFFECTING LIFE,
1172.,
[Sexual Offences],
1262.[[s 376DB] Punishment for gang rape on woman under twelve years of,
age.,
Where a woman under twelve years of age is raped by one or more persons,
"constituting a group or acting in furtherance of a common intention, each of those",
persons shall be deemed to have committed the offence of rape and shall be punished,
"with imprisonment for life, which shall mean imprisonment for",
"the remainder of that person's natural life, and with fine, or with death:",
Provided that such fine shall be just and reasonable to meet the medical expenses and,
rehabilitation of the victim:,
Provided further that any fine imposed under this section shall be paid to the victim.],
"1172. Subs. by Act 43 of 1983, section 3, for the heading ""Of rape"" (w.e.f. 25 December 1983).",
"1262. Ins. by Act 22 of 2018, section 6 (w.r.e.f. 21-4-2018).",
"The Indian Penal Code (PB), 36th ed",
"Ratanlal & Dhirajlal: Indian Penal Code (PB) / 1263. Ins. by Act 13 of 2013, section 9 (w.r.e.f. 3-2-2013). [s",
376E] Punishment for repeat offenders.,
Currency Date: 28 April 2020,
© 2020 LexisNexis,
THE INDIAN PENAL CODE,
CHAPTER XVI OF OFFENCES AFFECTING THE HUMAN BODY OF,
OFFENCES AFFECTING LIFE,
1172.,
[Sexual Offences],
1263.[s 376E] Punishment for repeat offenders.,
Whoever has been previously convicted of an offence punishable under section 376,
or section 376A or 1264.[section 376AB or section 376D or section 376DA or section,
"376DB,] and is subsequently convicted of an offence punishable under any of the said",
sections shall be punished with imprisonment for life which shall mean imprisonment,
"for the remainder of that person's natural life, or with death.]",
"1172. Subs. by Act 43 of 1983, section 3, for the heading ""Of rape"" (w.e.f. 25 December 1983).",
"1263. Ins. by Act 13 of 2013, section 9 (w.r.e.f. 3-2-2013).",
"1264. Subs. by Act 22 of 2018, section 7, for ""section 376D"" (w.r.e.f. 21-4-2018).",
"The Indian Penal Code (PB), 36th ed",
Ratanlal & Dhirajlal: Indian Penal Code (PB) / [s 377] Unnatural offences.,
Currency Date: 28 April 2020,
© 2020 LexisNexis,
THE INDIAN PENAL CODE,
CHAPTER XVI OF OFFENCES AFFECTING THE HUMAN BODY OF,
OFFENCES AFFECTING LIFE,
Of Unnatural Offences,
[s 377] Unnatural offences.,
"Whoever voluntarily has carnal intercourse against the order of nature with any man,",
"woman or animal, shall be punished with 1265.[imprisonment for life], or with",
"imprisonment of either description for a term which may extend to ten years, and",
shall also be liable to fine.,
Explanation.—Penetration is sufficient to constitute the carnal intercourse necessary,
to the offence described in this section.,
COMMENT.—,
"This section was intended to punish the offence of sodomy, buggery and bestiality. The",
offence purported to consist in a carnal knowledge committed against the order of,
"nature by a person with a man, or in the same unnatural manner with a woman, or by a",
"man or woman in any manner with an animal. To attract the above offence, the",
following ingredients were required: 1) Carnal intercourse and 2) against the order of,
nature.,
[s 377.1] Constitutionality of section 377.—Naz Judgment.—,
"The Delhi High Court in a landmark judgment declared section 377 IPC, 1860",
"unconstitutional, insofar it criminalised consensual sexual acts of adults in private as",
"violative of Articles 21, 14 and 15 of the Constitution.1266. But in Suresh Kumar Koushal",
"v NAZ Foundation,1267. the Supreme Court overruled the Delhi High Court judgment",
holding that those who indulge in carnal intercourse in the ordinary course and those,
who indulge in carnal intercourse against the order of nature constitute different,
classes and the people falling in the latter category cannot claim that section 377,
suffers from the vice of arbitrariness and irrational classification. What section 377,
does is merely to define the particular offence and prescribe punishment for the same,
which can be awarded if in the trial conducted in accordance with the provisions of the,
"Cr PC, 1973 and other statutes of the same family the person is found guilty. Therefore,",
"section 377 IPC, 1860 was held to be not ultra vires Articles 14 and 15 of the",
Constitution. It was also observed by the Supreme Court that the Court merely,
pronounced on the correctness of the view taken by the Delhi High Court on the,
"constitutionality of section 377 IPC, 1860 and found that the said section did not suffer",
"from any constitutional infirmity. Notwithstanding this verdict, the competent",
legislature shall be free to consider the desirability and propriety of deleting section,
"377 IPC, 1860 from the statute book or amend the same.",
"A constitution bench of the Supreme Court in Navtej Singh Johar v UOI,1268. overruled",
Suresh Kumar Koushal and held that consensual carnal intercourse among adults in,
"private space, does not in any way harm public decency or morality. Therefore, section",
377 in its present form violates Article 19(1)(a). The court held that so far as section,
"377 penalises any consensual sexual relationship between two adults, be it",
"homosexuals (man and man), heterosexuals (man and woman) or lesbians (woman",
"and woman), cannot be regarded as constitutional. However, if anyone engages in any",
"kind of sexual activity with animal, said aspect of section 377 is constitutional and it",
shall remain a penal offence. The court held that any act of description covered under,
section 377 done between two individuals without consent of any one of them would,
"invite penal liability. Further, non-consensual acts which have been criminalised by",
virtue of section 377 have already been designated as penal offences under section,
"375 and under POCSO Act, 2012.",
[s 377.2] Section 375 not subject to section 377.—,
"In Navtej Singh Johar v UOI,1269. the Supreme Court further held that section 375 gives",
due recognition to absence of 'wilful and informed consent' for act to be termed as,
"rape, per contra, section 377 which does not contain any such qualification. Section",
"375, as substituted by the Criminal Law (Amendment) Act, 2013, does not use words",
'subject to any other provision of IPC' which indicates that section 375 is not subject to,
section 377. Criminalisation of carnal intercourse between two adults was held legally,
unsustainable.,
[s 377.3] Penetration.—,
The explanation states that penetration is sufficient to constitute the sexual intercourse,
"necessary to the offence of rape. Section 377 of IPC, 1860 presupposes carnal",
intercourse against the order of nature.1270. As in rape so also in an unnatural offence,
even the slightest degree of penetration is enough and it is not necessary to prove the,
completion of the intercourse by the emission of seed.1271.,
"In a case arising out of unnatural offence, it was held that the acts alleged against the",
accused falling into two categories (1) sexual intercourse per OS (mouth) and (2),
manipulation and movement of penis of the accused whilst being held by the victims in,
such a way as to create orifice like thing for making manipulated movement of,
"insertion and withdrawal till ejaculation of semen, fell within the sweep of unnatural",
carnal offences and quashing of proceedings was not warranted.1272.,
The victim girl aged seven years was in the care and custody of the accused and the,
offences were committed by him over a period of time. Medical evidence and DNA,
profile conclusively established commission of natural and unnatural sexual acts on,
the deceased by the accused. Imposition of the maximum punishment awardable for,
"the said offences, i.e., life imprisonment was held perfectly justified.1273.",
"[s 377.4] Anal intercourse—Sodomy, medical evidence.—",
When an expert categorically ruled out the commission of an unnatural offence having,
"regard to his expertise, it was obligatory on the part of the prosecution to draw his",
attention so as to enable him to furnish an explanation. It was contended that,
lacerations are likely to disappear if the examination is made after two to three days,
and nature of injuries would also depend upon several factors. The doctor in his,
evidence stated that the tissues around the anus are hard and rough. At the time of,
"answering the calls of nature, the extra skin will be expanded. Immediately after it will",
come to original status. By examination it was found that the boy was not habitually,
used for anal intercourse. If there is continuous act of intercourse for about a week or,
"even two, three days it can be found out as to whether he had any intercourse or not. It",
may be true that absence of medical evidence by itself is not a crucial factor in all,
"cases, but, the same has to be taken into consideration as a relevant factor when other",
evidence points towards the innocence of the appellant. It was not a case where only,
one view was possible. It is a well-settled principle of law that where two views are,
"possible, the High Court would not ordinarily interfere with the judgment of",
acquittal.1274.,
[s 377.5] Conviction without charge.—,
Though medical evidence shows that victim was subjected to rape and carnal,
"intercourse on more than one occasion before she was murdered, there was no charge",
"of sodomy under section 377 IPC, 1860 framed by trial Court. It was held that accused",
cannot be convicted under section 377.1275.,
"1265. Subs. by Act 26 of 1955, section 117 and Sch, for ""transportation for life"" (w.e.f. 1-1-",
1956).,
"1266. Naz Foundation v Government of NCT of Delhi, 2010 Cr LJ 94 (Del).",
"1267. Suresh Kumar Koushal v NAZ Foundation, AIR 2014 SC 563 [LNIND 2013 SC 1059] : 2014",
Cr LJ 784 .,
"1268. Navtej Singh Johar v UOI, AIR 2018 SC 4321 .",
"1269. Navtej Singh Johar v UOI, AIR 2018 SC 4321 .",
"1270. Kailash Laxman Khamkar v State of Maharashtra, 2010 Cr LJ 3255 (Bom).",
"1271. Hughes, (1841) 9 C & P 752; See also GD Ghadge, 1980 Cr LJ 1380 (Bom).",
"1272. Brother John Antony v State of TN, 1992 Cr LJ 1352 (Mad). The court explained the",
meaning and scope of the unnatural offence and referred to various authorities on this subject.,
"1273. Rajesh v State of MP, AIR 2017 SC 532 [LNINDORD 2016 SC 11435] .",
"1274. Gowrishankara Swamigalu v State of Karnataka, (2008) 14 SCC 411 [LNIND 2008 SC 598] :",
AIR 2008 SC 2349 [LNIND 2008 SC 598] : 2008 Cr LJ 3042 . The offence was supposed to have,
been committed for seven consecutive days at 8 a.m. in the office room a part of which was,
converted into a bed room. The whole thing sounded like unnatural.,
"1275. State of Maharashtra v Shankar Krisanrao Khade, 2009 Cr LJ 73 (Bom).",
THE INDIAN PENAL CODE,
CHAPTER XVII OF OFFENCES AGAINST PROPERTY,
Of Theft,
[s 378] Theft.,
"Whoever, intending to take dishonestly1. any movable property2. out of the possession",
"of any person3. without that person's consent,4. moves that property5. in order to such",
"taking, is said to commit theft.",
"Explanation 1.—A thing so long as it is attached to the earth, not being movable",
"property, is not the subject of theft; but it becomes capable of being the subject of",
theft as soon as it is severed from the earth.,
Explanation 2.—A moving effected by the same act which affects the severance may,
be a theft.,
Explanation 3.—A person is said to cause a thing to move by removing an obstacle,
"which prevented it from moving or by separating it from any other thing, as well as by",
actually moving it.,
"Explanation 4.—A person, who by any means causes an animal to move, is said to",
"move that animal, and to move everything which, in consequence of the motion so",
"caused, is moved by that animal.",
"Explanation 5.—The consent mentioned in the definition may be express or implied,",
"and may be given either by the person in possession, or by any person having for that",
purpose authority either express or implied.,
ILLUSTRATIONS,
"(a) A cuts down a tree on Z's ground, with the intention of dishonestly taking the",
"tree out of Z's possession without Z's consent. Here, as soon as A has severed",
"the tree in order to such taking, he has committed theft.",
"(b) A puts a bait for dogs in his pocket, and thus induces Z's dog to follow it. Here, if",
A's intention be dishonestly to take the dog out of Z's possession without Z's,
consent. A has committed theft as soon as Z's dog has begun to follow A.,
(c) A meets a bullock carrying a box of treasure. He drives the bullock in a certain,
"direction, in order that he may dishonestly take the treasure. As soon as the",
"bullock begins to move, A has committed theft of the treasure.",
"(d) A, being Z's servant, and entrusted by Z with the care of Z's plate, dishonestly",
"runs away with the plate, without Z's consent. A has committed theft.",
"(e) Z, going on a journey, entrusts his plate to A, the keeper of the warehouse, till Z",
shall return. A carries the plate to a goldsmith and sells it. Here the plate was,
"not in Z's possession. It could not therefore be taken out of Z's possession, and",
"A has not committed theft, though he may have committed criminal breach of",
trust.,
(f) A finds a ring belonging to Z on a table in the house which Z occupies. Here the,
"ring is in Z's possession, and if A dishonestly removes it, A commits theft.",
"(g) A finds a ring lying on the highroad, not in the possession of any person. A by",
"taking it, commits no theft, though he may commit criminal misappropriation of",
property.,
(h) A sees a ring belonging to Z lying on a table in Z's house. Not venturing to,
"misappropriate the ring immediately for fear of search and detection, A hides",
"the ring in a place where it is highly improbable that it will ever be found by Z,",
with the intention of taking the ring from the hiding place and selling it when the,
"loss is forgotten. Here A, at the time of first moving the ring, commits theft.",
"(i) A delivers his watch to Z, a jeweller, to be regulated. Z carries it to his shop. A,",
not owing to the jeweller any debt for which the jeweller might lawfully detain the,
"watch as a security, enters the shop openly, takes his watch by force out of Z's",
"hand, and carries it away. Here A, though he may have committed criminal",
"trespass and assault, has not committed theft, inasmuch as what he did was not",
done dishonestly.,
"(j) If A owes money to Z for repairing the watch, and if Z retains the watch lawfully",
"as a security for the debt, and A takes the watch out of Z's possession, with the",
"intention of depriving Z of the property as a security for his debt, he commits",
"theft, inasmuch as he takes it dishonestly.",
"(k) Again, if A, having pawned his watch to Z, takes it out of Z's possession without",
"Z's consent, not having paid what he borrowed on the watch, he commits theft,",
though the watch is his own property inasmuch as he takes it dishonestly.,
"(l) A takes an article belonging to Z out of Z's possession, without Z's consent, with",
the intention of keeping it until he obtains money from Z as a reward for its,
restoration. Here A takes dishonestly; A has therefore committed theft.,
"(m) A, being on friendly terms with Z, goes into Z's library in Z's absence, and takes",
"away a book without Z's express consent for the purpose merely of reading it,",
"and with the intention of returning it. Here, it is probable that A may have",
conceived that he had Z's implied consent to use Z's book. If this was A's,
"impression, A has not committed theft.",
"(n) A asks charity from Z's wife. She gives A money, food and clothes, which A",
knows to belong to Z her husband. Here it is probable that A may conceive that,
"Z's wife is authorised to give away alms. If this was A's impression, A has not",
committed theft.,
"(o) A is the paramour of Z's wife. She gives A valuable property, which A knows to",
"belong to her husband Z, and to be such property as she has no authority from Z",
"to give. If A takes the property dishonestly, he commits theft.",
"(p) A, in good faith, believing property belonging to Z to be A's own property, takes",
"that property out of B's possession. Here, as A does not take dishonestly, he",
does not commit theft.,
COMMENT—,
"Section 378 of the Indian Penal Code, 1860 (IPC, 1860) defines 'theft' as the dishonest",
removal of movable property 'out of the possession of any person' without the consent,
"of that person. 'Theft', has the following ingredients, namely, (i) dishonest intention to",
take property; (ii) the property must be movable; (ii) it should be taken out of the,
possession of another person; (iv) it should be taken without the consent of that,
person; and (v) there must be some moving of the property in order to accomplish the,
taking of it.,
"To bring home an offence under section 378 IPC, 1860, the prosecution is to prove (a)",
that there was a movable property; (b) that the said movable property was in the,
possession of person other than the accused; (c) that the accused took it out or moved,
"it out of the possession of the said person; (d) that the accused did it dishonestly, i.e.,",
with intention to cause wrongful gain to himself or wrongful loss to another; (e) that the,
accused took the movable property or moved it without the consent of the possessor,
of the movable property.1,
The Criminal Court is not required to adjudicate on rival claims of title claimed by the,
parties. All that the Criminal Court has to decide is whether at the time of the alleged,
incident the property which is the subject-matter of theft was in the 'possession' of the,
complainant and whether it was taken out of the possession of the complainant with a,
dishonest intention.2,
"1. Prafula Saikia v State of Assam, 2012 Cr LJ 3889 (Gau).",
"2. P T Rajan Babu v Anitha Chandra Babu, 2011 Cr LJ 4541 (Ker).",
"3. Nobin Chunder Holder, (1866) 6 WR (Cr) 79.",
"4. Ramratan, AIR 1965 SC 926 [LNIND 1964 SC 365] : (1965) 2 Cr LJ 18 .",
"5. Rameshwar Singh, (1936) 12 Luck 92 .",
THE INDIAN PENAL CODE,
CHAPTER XVII OF OFFENCES AGAINST PROPERTY,
Of Theft,
[s 379] Punishment for theft.,
Whoever commits theft shall be punished with imprisonment of either description for,
"a term which may extend to three years, or with fine, or with both.",
COMMENT—,
In order to constitute theft five factors are essential:—,
(1) Dishonest intention to take property;,
(2) The property must be movable;,
(3) The property should be taken out of the possession of another person;,
(4) The property should be taken without the consent of that person; and,
(5) There must be some moving of the property in order to accomplish the taking of,
it.,
1. 'Intending to take dishonestly'.—Intention is the gist of the offence. The intention to,
take dishonestly exists when the taker intends to cause wrongful gain to one person or,
"wrongful loss to another person. Where, therefore, the accused acting bona fide in the",
interests of his employers finding a party of fishermen poaching on his master's,
"fisheries, took charge of the nets and retained possession of them, pending the orders",
"of his employers, it was held that he was not guilty of theft.3 When a person seizes",
cattle on the ground that they were trespassing on his land and causing damage to his,
"crop or produce and gives out that he is taking them to the cattle pound, he commits",
"no offence of theft, and however mistaken he may be about his right to that land or",
crop. He has no dishonest intention.4 Where a respectable person just pinches the,
"cycle of another person, as his own cycle at the time was missing, and brings it back",
and the important element of criminal intention is completely absent and he did not,
"intend by his act to cause wrongful gain to himself, it does not amount to theft.5",
The intention to take dishonestly must exist at the time of the moving of the property,
[vide ill. (h)]. The taking must be dishonest. It is not necessary that the taking must,
cause wrongful gain to the talker; it will suffice if it causes wrongful loss to the owner.6.,
"Thus, where the accused took the complainant's three cows against her will and",
"distributed them among her creditors, he was found guilty of stealing.7. It makes no",
difference in the accused's guilt that the act was not intended to procure any personal,
benefit to him. Could it be said that a servant would not be guilty of theft if he were to,
"deliver over his master's plate to a pressing tailor, and tell him to pay himself? If the act",
"done was not done animo furtandi, it will not amount to theft. It is no more stealing than",
it will be to take a stick out of a man's hand to beat him with it.8.,
[s 379.1] Taking need not be with intent to retain property permanently.—,
It is not necessary that the taking should be permanent or with an intention to,
appropriate the thing taken9. [vide ill. (1)]. There may be theft without an intention to,
deprive the owner of the property permanently. Where the accused took out an Indian,
"Air Force plane for an unauthorised flight, even temporarily, it was held that he was",
guilty of theft.10. It would satisfy the definition of theft if the accused takes away any,
movable property out of the possession of another person though he intended to return,
"it later on. The accused, who was working in a Government office, removed a file to his",
"house, made it available to an outsider and then returned it to the office after two days.",
It was held by the Supreme Court that the accused was guilty of theft.11.,
[s 379.2] Bona fide dispute.—,
"Where property is removed in the assertion of a contested claim of right, however ill-",
"founded that claim may be, the removal thereof does not constitute theft.12. Where the",
question in dispute between two parties was whether the sale of a mahal (village),
carried within its ambit the sale of certain trees and the servant of one of the parties,
cut and removed the trees under his master's orders under the bona fide belief that they,
"belonged to his master, it was held that the servant was not guilty of theft.13. The",
dispute as to ownership must be bona fide. A mere colourable pretence to obtain or,
"keep possession of property does not avail as a defence.14. It is not theft if a person,",
"acting under a mistaken notion of law, and believing that certain property is his, and",
"that he has the right to take the same, until payment of the balance of some money due",
"to him from the vendor, removes such property from the possession of the vendee.15.",
"Where a bona fide claim of right exists, it can be a good defence to a prosecution for",
theft. Thus where the question of possession was in a fluid state and the accused bona,
"fide believed that the crop was his as he had cultivated the land, no offence either of",
criminal trespass or theft could be made out against him. Such a matter is better,
"decided in a Civil Court.16. However, it was held in a case of dacoity that the question",
of bona fide claim of right arises only where the accused show to the Court's,
"satisfaction that their belief is reasonable and is based on some documents and title,",
however weak it may be.17. An act does not amount to theft under such circumstances,
unless there be not only no legal right but no appearance or colour of a legal right.18.,
[s 379.3] Mistake.—,
When a person takes another man's property believing under a mistake of fact and in,
"ignorance of law, that he has a right to take it, he is not guilty of theft because there is",
"no dishonest intention, even though he may cause wrongful loss.19.",
[s 379.4] Taking back property lent on hire.—,
There was a hire-purchase agreement in respect of a vehicle. The custody of the,
vehicle was handed over to the hirer. The financier was to continue as the owner till the,
last instalment. The financier took back the vehicle for default in payments in,
accordance with the agreement. It was held that this did not amount to theft by the,
owner of his vehicle as the vital element of dishonest intention was lacking.20.,
[s 379.5] Hire Purchase.—,
When hirer himself committed default by not paying the instalments and under the,
"agreement, the appellants have repossessed the vehicle, the respondent-hirer cannot",
have any grievance as the vital element of 'dishonest intention' is lacking. The element,
of 'dishonest intention' which is an essential element to constitute the offence of theft,
cannot be attributed to a person exercising his right under an agreement entered into,
between the parties as he may not have an intention of causing wrongful gain or to,
cause wrongful loss to the hirer.21. Because of the fact that status of complainant,
relating to the vehicle in question having purchased under Hire Purchase Agreement till,
saturation of the loan amount remains merely a trustee or bailee on behalf of financer,
and further in the aforesaid background the financer happens to be the real owner of,
"the vehicle till saturation of the loan amount, no prosecution would lie on that score.22.",
The hire-purchase agreement in law is an executory contract of sale and confers no,
right in rem on hire until the conditions for transfer of the property to him have been,
fulfilled.23.,
2. 'Movable property'.—Explanations 1 and 2 state that things attached to the land may,
"become movable property by severance from the earth, and that the act of severance",
"may of itself be theft [vide ill (a)]. Thus, the thief who severs and carries away is put in",
exactly the same position as if he carried away what had previously been severed. A,
sale of trees belonging to others and not cut down at the time of sale does not,
constitute theft.24. But removal of a man's trees that had been blown down by a storm,
amounts to theft.25.,
It is not necessary that the thing stolen must have some appreciable value.,
[s 379.6] CASES.— Earth and stones.—,
Cart-loads of earth26. or stones27. quarried and carried away from the land of another,
are subject of theft.,
[s 379.6.1] Timber.—,
Extraction of teak timber without licence amounts to theft of Government timber.28. In,
"Bhaiyalal v State of MP,29. it was held that the act of cutting of trees standing on",
Government land amounts to theft under section 378.,
[s 379.6.2] Salt.—,
"Salt spontaneously formed on the surface of a swamp appropriated by Government,30.",
"or in a creek under the supervision of Government,31. is subject of theft; but not that",
which is formed on a swamp not guarded by Government.32.,
[s 379.6.3] Human body.—,
"Human body whether living or dead (except bodies, or portions thereof, or mummies,",
preserved in museums or scientific institutions) is not movable property.33.,
[s 379.6.4] Idol.—,
Idol is movable property and can be the subject matter of theft. It's being a juridical,
person for certain purposes is no bar to its also being a movable property.34.,
[s 379.6.5] Gas.—,
"A, having contracted with a gas company to consume gas and pay according to meter,",
"in order to avoid paying for the full quantity of gas consumed, introduced into the",
entrance pipe another pipe for the purpose of conveying the gas to the exit pipe of the,
"meter and so to the burners, for consumption without passing through the meter itself.",
"The entrance pipe was the property of A, but he had not by his contract any interest in",
the gas until it passed through the meter. It was held that A was guilty of larceny.35.,
[s 379.6.6] Electricity.—,
"Theft of electricity is governed by section 135 of the Electricity Act, 2003. Though the",
"electricity is not movable property within the meaning of section 378, IPC, 1860, and as",
"such its dishonest abstraction cannot be regarded as theft under section 378, yet by a",
"legal fiction created by section 39 of the Indian Electricity Act, 1910 (now repealed),",
such an act should be deemed to be an offence of theft and punished under section,
"379, IPC, 1860, and section 39 of the Electricity Act, 1910. In the case of Mahalakshmi",
"Spinners Ltd v State of Haryana,36. it was held that when there is a specific/ special law",
"covering the question of theft of electricity, i.e. section 135 of the Electricity Act, (Act 9",
"of 1910), the general law contained in section 379, IPC, 1860 will not be applicable. Any",
"attempt by the notice to add offence under section 379 IPC, 1860 will be a crude devise",
by the prosecution to overcome the likely objection from the accused about the filing of,
the complaint instead of registration of FIR. Law is well settled that special law will,
prevail over the general law.,
[s 379.6.7] Water.—,
"Water supplied by a water company to a consumer, and standing in his pipes, may be",
the subject of larceny.37. Water when conveyed in pipes and so reduced into,
possession can be the subject of theft;38. but not water running freely from a river,
through an open channel made and maintained by a person.39.,
[s 379.6.8] Animals.—Bull.—,
A bull dedicated to an idol and allowed to roam at large is not res nullius (thing,
"belonging to no one) but remains the property of the trustees of the temple, and can",
become the subject of theft;40. but not a bull set at large in accordance with a religious,
usage.41.,
[s 379.6.9] Peacock.—,
A peacock tamed but not kept in confinement is the subject of theft.42. So is the case,
with pigeons kept in a dovecote and partridges.,
[s 379.6.10] Fish.—,
"Fish in an ordinary open irrigation tank,43. or in a tank not enclosed on all sides but",
"dependent on the overflow of a neighbouring channel,44. are ferae naturae and not",
subject to theft. If the water in an irrigation tank has gone so low as not to permit the,
"fish leaving the tank then they may be subject of theft.45. Similarly, fish in an enclosed",
tank are restrained of their natural liberty and liable to be taken at any time according to,
"the pleasure of the owner, and are, therefore, subject of theft.46. Thus fish in an",
enclosed Government tank is the property in possession of Government and it is theft,
to catch fish therein without a licence apart from being an offence under the Fisheries,
"Act, 1897.47. Fish are said to be in the possession of a person who has possession of",
any expanse of water such as a tank where they live but from where they cannot,
escape. They are also regarded as being in the possession of a person who owns an,
exclusive right to catch them in a particular spot known as a fishery but only within that,
"spot.48. Where plots belonging to different owners in a low-lying area, demarcated by",
"ridges of small height, are sub-merged during certain months in the year by one sheet",
"of water and fish escape from one plot to another, it cannot be said in such a case that",
fish is the subject matter of theft.49.,
[s 379.6.11] Crop.—,
Removal of paddy crop has been held to be theft. Persons who helped removal under,
directions as labourers were not guilty. The fact that the land was in the possession of,
the complainant and it was he who had grown the crop was held to be sufficient to,
negative the accused's suggestion that he removed the crop under a bona fide belief,
that he was entitled to it.50.,
[s 379.6.12] Standing Timber.—,
Standing timber being embedded in the earth is immovable property but the moment it,
is severed from the earth it becomes capable of being the object of theft.51.,
[s 379.6.13] Ballot Paper.—,
Accused was allegedly found in possession of a bundle of 84 stolen postal ballot,
papers at gate of printing press. High Court rejected the plea of petitioner that since he,
"was found in possession of ballot papers, he ought not to have been tried for an",
"offence under section 380 IPC, 1860,rather he could have been tried under section",
"127(p)(iv) of Assam Panchayat Act, 1994.52.",
[s 379.6.14] Motor vehicles.—,
"The allegation was that the accused changed engine, colour, etc. of stolen vehicles and",
got them registered in new owners' names. But no particular instance was shown. The,
incident was more than ten years old. There was no explanation for delay in presenting,
"charge-sheet. Hence, acquittal was held proper.53.",
3. 'Out of the possession of any person'.—The property must be in the possession of,
"the prosecutor.54. Thus, there can be no theft of wild animals, birds, or fish, while at",
"large, but there can be a theft of tamed animals. It is sufficient if property is removed",
"against his wish from the custody of a person who has an apparent title, or even colour",
of right to such property.55. Transfer of possession of movable property without,
"consent of the person in possession need not, however, be permanent or for a",
considerable length of time nor is it necessary that the property should be found in,
possession of the accused. Even a transient transfer of possession is sufficient to,
meet the requirement of this section.56.,
"The authors of the Code remark: ""We believe it to be impossible to mark with precision,",
"by any words, the circumstances which constitute possession. It is easy to put cases",
"about which no doubt whatever exists, and about which the language of lawyers and of",
"the multitude would be the same. It will hardly be doubted, for example, that a",
"gentleman's watch lying on a table in his room is in his possession, though it is not in",
"his hand, and though he may not know whether it is on his writing-table or on his",
dressing-table. As little will it be doubted that a watch which a gentleman lost a year,
"ago on a journey, and which he has never heard of since, is not in his possession. It will",
"not be doubted that when a person gives a dinner, his silver forks, while in the hands of",
"his guests, are still in his possession; and it will be as little doubted that his silver forks",
are not in his possession when he has deposited them with a pawnbroker as a pledge.,
"But between these extreme cases lie many cases in which it is difficult to pronounce,",
"with confidence, either that property is or that it is not in a person's possession.""57.",
A movable thing is said to be in the possession of a person when he is so situated with,
respect to it that he has the power to deal with it as owner to the exclusion of all other,
"persons, and when the circumstances are such that he may be presumed to intend to",
do so in case of need.58.,
[s 379.7] 'Any person'.—,
The person from whose possession the property is taken may or may not be the owner,
of it and may have his possession either rightful or wrongful. Mere physical control of,
the person over the thing is quite enough [vide ills. (j) and (k)].,
[s 379.8] Attachment.—,
Theft can be committed by the owner of property under attachment by removing it.59.,
"The removal of crops, standing on land attached and taken possession of by the Court",
"under section 145, Code of Criminal Procedure, 1973(Cr PC, 1973), amounts to theft.60.",
"Where a judgment-debtor, whose standing crops were attached, harvested them while",
"the attachment was in force, it was held by the Madras High Court that he could not be",
convicted of theft but of offences under sections 424 and 403.61.,
[s 379.9] Joint possession.—,
"Where there are several joint owners in joint possession, and any one of them,",
"dishonestly takes exclusive possession, he would be guilty of theft.62. A co-owner of",
"movable property with another, even if his share is defined, can be guilty of theft, if he is",
"found to remove the joint property without even an implied consent of the co-owner,",
with a view to cause wrongful loss to the co-owner and consequently wrongful gain to,
"himself or anybody else.63. Similarly, if a coparcener dishonestly takes the separate",
"property of another coparcener, it amounts to theft.64.",
[s 379.10] Seizure of things delivered under hire-purchase.—,
"In Shriram Transport Finance Co Ltd v R Khaishiulla Khan,65. it was held that in case of a",
"hire-purchase transaction, when the financier seizes the vehicle for default in payment",
"of instalments by the hirer, the financier cannot be charged for an offence of theft",
under section 378 because of absence of mens rea. The right of the owner to get back,
the vehicle is not affected by the fiction of 'deemed owner' under the Motor Vehicles,
"Act, 1988. The act of taking back the vehicle did not amount to theft.66.",
[s 379.11] Animals ferae naturae.—,
Animals found in reserve forests are ferae naturae and incapable of possession. Till,
"they are tamed and domesticated and brought to the custody of a person, whether it is",
"Government or any other individual, such animals cannot be said to be in the",
possession of the Government and persons who remove them cannot be convicted of,
theft.67.,
[s 379.12] CASES.—,
Where the complainant had an apparent title as tenant of the land together with long,
"possession, and he had on the strength of this raised the crops which the accused",
"removed, it was held that the accused was guilty of theft because he was not justified",
"in taking the law into his own hands, even if he was entitled to hold the land, as he was",
not in actual possession of it.68.,
Where a person takes a lorry on hire-purchase system from a company which under the,
agreement had reserved the right of seizing the lorry in the event of default in payment,
"of instalments, and default is made, then the company is not entitled to retake",
possession of the lorry by force or by removing it from the hands of the purchaser's,
"servants who had no authority, express or implied, to give any consent. If the company",
or its agents do so they are guilty of an offence under this section. The question,
whether ownership had or had not passed to the purchaser is wholly immaterial as this,
section deals with possession and not ownership. The legal possession of the lorry,
was vested in the purchaser and the company was not entitled to recover possession,
"of the lorry, even though default in payment of any instalments had taken place, without",
the consent of the purchaser. Possession of the driver and the cleaner was the,
possession of their master and they were not competent to give consent on behalf of,
the master.69.,
4. 'Consent'.—The thing stolen must have been taken without the consent of the person,
"in possession of it. Explanation 5 says that consent may be express or implied, and",
"may be given either by the person in possession, or by any person having for that",
purpose authority either express or implied [vide ills. (m) and (n)]. But consent given,
under improper circumstances will be of no avail [vide ill. (c)]. Consent obtained by a,
false representation which leads to a misconception of facts will not be a valid,
consent.70.,
[s 379.13] CASES.—,
A sought the aid of B with the intention of committing a theft of the property of B's,
"master. B, with the knowledge and consent of his master, and for the purpose of",
"procuring A's punishment, aided A in carrying out his object. It was held that as the",
"property removed was so taken with the knowledge of the owner, theft was not",
"committed, but A was guilty of abetment of theft.71. Really speaking, the owner did not",
consent to the dishonest taking away of the property. He merely assisted the thief in,
"carrying out the latter's dishonest intention. Cf.ills. (m), (n) and (o). The thief had no",
"knowledge of the owner's act and it could not, therefore, be construed as a consent.",
[s 379.14] Unauthorised consent.—,
"Possession of wood by a Forest Inspector, who is a servant of Government, is",
"possession of the Government itself and a dishonest removal of it, without payment of",
"the necessary fees, from his possession, albeit with his actual consent, was held to",
constitute theft as consent was unauthorised and fraudulent.72.,
5. 'Moves that property'.—The offence of theft is completed when there is a dishonest,
"moving of the property, even though the property is not detached from that to which it",
is secured. The least removal of the thing taken from the place where it was before is a,
"sufficient asportation though it is not quite carried off. Upon this principle the guest,",
who having taken off the sheets from his bed with an intent to steal them carried them,
"into the hall, and was apprehended before he could get out of the house, was adjudged",
"guilty of theft. So also was he, who having taken a horse in a close with intent to steal",
"it, was apprehended before he could get it out of the close.73.",
Explanations 3 and 4 state how 'moving' could be effected in certain cases.,
Illustrations (b) and (c) elucidate the meaning of Explanation 4.,
In a prosecution under sections 379/411 in respect of timber seized in a raid the link,
between the seized timber and the accused was not established nor was any evidence,
brought to show that the seized timber was transported by the accused under the guise,
of permits issued to him by the forest department. Acquittal of the accused of the,
offences under the aforesaid sections was not interfered with.74.,
"6. Explanations 1 and 2.—The moving by the same act, which effects the severance,",
may constitute theft.75. Carrying away of trees after felling them is theft76. but mere,
"sale is not.77. In the case of growing grass, a moving by the same act, which affects its",
"severance from the earth, may amount to theft.78.",
"Where certain land, on which there was a standing crop of paddy, was entrusted to the",
accused to take care of and watch till the paddy was ripe when they were to give notice,
"to the factory people who would reap it, it was held that by cutting the crops",
"themselves and disposing of the same, the accused had committed theft.79.",
[s 379.15] Husband and wife.—Hindu law.—,
There is no presumption of law that husband and wife constitute one person in India,
for the purpose of criminal law. If the wife removes her husband's property from his,
"house with dishonest intention, she is guilty of theft.80. A Hindu woman who removes",
"from the possession of her husband and without his consent, her stridhan (woman's",
property) cannot be convicted of theft because this species of property belongs to her,
"absolutely.81. So also, a husband can be convicted if he steals his wife's stridhan.",
Where certain articles of movable property were in the joint possession of husband and,
"wife, it was held that the husband who was alleged to have taken away the articles",
could not be held guilty of theft.82.,
[s 379.16] Mohammedan law.—,
It is laid down that a Mohammedan wife may be convicted of stealing from her,
"husband, because under this system of law, there does not exist the same union of",
interest between husband and wife as exists between an English husband and wife.83.,
The same reasoning would apply in the case of a Mohammedan husband.,
[s 379.16.1] Necessitas inducit privilegium quo ad jura privata.—,
Where a man in extreme want of food or clothing steals either in order to relieve his,
"present necessities, the law allows no such excuse to be considered.",
[s 379.17] Single or several thefts.—,
Removal by one single act of several articles constitutes one offence of theft only,
although the articles belong to different persons.84.,
[s 379.18] Restoration of stolen property.—,
The property stolen may be returned to the person from whom it was stolen under,
"section 452, Cr PC, 1973, and an innocent purchaser may be compensated for the price",
"paid under section 453, if any money is found in the possession of the thief. But the",
property restored should be in existence at the time of theft. R's cow having been,
"stolen, the thief after a lapse of a year and a half was convicted. Six months after the",
"theft V innocently purchased the cow, which while in his possession, had a calf. The",
Magistrate ordered that the cow and the calf should be delivered up by V to R. It was,
"held that, as the calf was not even in embryo at the date of the theft, the order to deliver",
up the calf was illegal.85.,
"In Karuppanan v Guruswami,86. it was held by the High Court of Madras that where the",
person accused of theft is acquitted and claims as his own the property seized from,
"him, it should be restored to him in the absence of special reasons to the contrary. The",
Court observed that since it was clear that the learned Sub-Magistrate has over-looked,
"the fundamental principle, that when property is seized from a person who is",
"afterwards acquitted of stealing it, the property should ordinarily be returned to that",
person. The Magistrate cannot be said to have exercised his discretion in a judicial,
manner.,
"[s 379.19] Possession, presumption of theft.—",
Where electric wires stolen from an electric sub-station were found in the possession,
of the accused and there was evidence to show that the material of that kind was not,
"available in the market, it was held that a presumption arose that the material was a",
stolen property and that the accused committed the theft. Considering that the,
"accused was the sole breadwinner of the family and he had no past criminal record,",
one year's RI was considered to be good enough punishment to meet the ends of,
justice.87.,
[s 379.20] Theft and extortion.—,
"The offence of extortion is carried out by overpowering the will of the victim, in",
"committing a theft, on the other hand, the offender's intention always is to take away",
without consent.88.,
[s 379.21] Charge proved.—,
The accused administered intoxicating substance to complainant and took away,
valuable goods and cash. The complainant identified these articles in the Test,
Identification Proceedings conducted during investigation and they were also identified,
"by him in the Court hence, conviction was held to be proper.89.",
[s 379.22] Double jeopardy.—,
"In a case, FIR was registered under section 379 of IPC, 1860 and section 21(1) of",
"Mines and Minerals (Development and Regulation) Act, 1957 for the allegation was",
theft of sand belonging to Government. The plea of Double Jeopardy was rejected,
holding that both offences are not same in terms of Article 20(2) of the Constitution. A,
"cursory comparison of these two provisions with section 378 of IPC, 1860 would go to",
show that the ingredients are totally different. The contravention of the terms and,
"conditions of mining lease, etc. constitutes an offence punishable under section 21 of",
"the Mines and Minerals Act, 1957, whereas dishonestly taking any movable property",
"out of the possession of a person without his consent constitutes theft. Thus, it is",
"undoubtedly clear that the ingredients of an offence of theft as defined in s 378 of IPC,",
1860 are totally different from the ingredients of an offence punishable under section,
"21(1) r/w.s. 4 (1) and 4 (1 A) of the Mines and Minerals Act, 1957.90.",
"6. Madra, (1946) Nag 326.",
"7. Madaree Chowkeedar, (1865) 3 WR (Cr) 2.",
"8. Bailey, (1872) LR 1 CCR 347. For a general study as to the notion of theft and obtaining by",
"false pretenses, see M Adekunle Owaade, THE DILEMMA OF THE CRIMINAL LAW IN PROPERTY",
OFFENCES—A comparative Analysis of the basic Issues in stealing and obtaining by false,
"pretenses, (1989) 31 JILI 226.",
"9. Sri Churn Chungo, (1895) 22 Cal 1017 (FB); Nagappa, (1890) 15 Bom 344.",
"10. KN Mehra, AIR 1957 SC 369 [LNIND 1957 SC 14] : 1957 Cr LJ 550 .",
"11. Pyare Lal, AIR 1963 SC 1094 [LNIND 1962 SC 341] : (1963) 2 Cr LJ 178 .",
"12. Algarasawmi Tevan, (1904) 28 Mad 304.",
"13. Ramzani, (1943) 19 Luck 399 .",
"14. Arfan Ali, (1916) 44 Cal 66 ; Harnam Singh v State, (1923) 5 Lah 56.",
"15. Hamid Ali Bepari, (1925) 52 C l 1015.",
"16. Ram Ekbal v State, 1972 Cr LJ 584 : AIR 1972 SC 949 .",
"17. G Raminadin, 1980 Cr LJ 1477 : AIR 1980 SC 2127 ; See also Dandi Deka, 1982 Cr LJ NOC",
188 (Gau).,
"18. Apparao v Lakshminarayana, AIR 1962 SC 586 [LNIND 1961 SC 324] : (1962) 1 Cr LJ 518 ;",
"Chandi Kumar v Abanidhar Roy, AIR 1965 SC 585 [LNIND 1963 SC 231] : (1965) 1 Cr LJ 518 .",
"19. Nagappa, (1890) 15 Bom 344.",
"20. Charanjit Singh Chadha v Sudhir Mehra, AIR 2001 SC 3721 [LNIND 2001 SC 2906] .",
"21. Charanjit Singh Chadha v Sudhir Mehra, AIR 2001 SC 3721 [LNIND 2001 SC 2906] : (2001) 7",
SCC 417 [LNIND 2001 SC 2906] .,
"22. Naresh Singh v State of Bihar, (PATNA HC) : 2017 (2) PLJR 514 .",
"23. Charanjit Singh Chadha v Sudhir Mehra, AIR 2001 SC 3721 [LNIND 2001 SC 2906] .",
"24. Balos, (1882) 1 Weir 419.",
"25. Dunyapat, (1919) 42 All 53 .",
"26. Shivramm, (1891) 15 Bom 702.",
"27. Suri Venkatappayya Sastri v Madula Venkanna, (1904) 27 Mad 531 (FB).",
"28. Yeok Kuk, (1928) 6 Ran 386.",
"29. Bhaiyalal v State of MP, 1993 Cr LJ 29 (MP).",
"30. Tamma Ghantaya, (1881) 4 Mad 228.",
"31. Mansang Bhavsang, (1873) 10 BHC 74.",
"32. Government Pleader, (1882) 1 Weir 412.",
"33. Ramadhin, (1902) 25 All 129 .",
"34. Ahmed v State, AIR 1967 Raj 190 [LNIND 1966 RAJ 32] .",
"35. White v White, (1853) 6 Cox 213. R v Hughes, (2000) 2 Cr App R (S) 399 [CA (Crim Div)], gas",
"meter by passed, three months' imprisonment.",
"36. Mahalakshmi Spinners Ltd v State of Haryana, 2007 Cr LJ 429 (P&H).",
"37. Ferens v O'Brien, (1883) 11 QBD 21 .",
"38. Mahadeo Prasad, (1923) 45 All 680 .",
"39. Sheikh Arif, (1908) 35 Cal 437 .",
"40. Nalla, (1887) 11 Mad 145.",
"41. Romesh Chunder Sannyal v Hiru Mondal, (1890) 17 Cal 852 ; Bandhu, (1885) 8 All 51 ; Nihal,",
(1887) 9 All 348 .,
"42. Nanhe Khan, (1897) 17 AWN 41.",
"43. Subba Reddi v Munshoor Ali Saheb, (1900) 24 Mad 81.",
"44. Maya Ram Surma v Nichala Katani, (1888) 15 Cal 402 .",
"45. Subbian Servai, (1911) 36 Mad 472.",
"46. Shaik Adam, (1886) 10 Bom 193; Nokolo Behara v State, (1927) 51 Mad 333.",
"47. State of Rajasthan v Pooran Singh, 1977 Cr LJ 1055 (Raj).",
"48. Chandi Kumar v Abanidhar Roy, AIR 1965 SC 585 [LNIND 1963 SC 231] : (1965) 1 Cr LJ 496 .",
"49. Bairagi Rout v Brahmananda Das, 1970 Cr LJ 638 .",
"50. Sukchand Harijan v State of Orissa, 1988 Cr LJ 1579 (Ori). Relying on Kabir v Arjun Sial,",
"(1959) 25 Cut LT 249. Droupadi Devi v Padmanabha Mishra, 1997 Cr LJ 2807 (Ori), the accused",
removed his own cultivated crop. The fact of dispute about land which was in possession of the,
accused would not make him guilty of theft. Civil case of ownership was pending.,
"51. P T Rajan Babu v Anitha Chandra Babu, 2011 Cr LJ 4541 (Ker).",
"52. Prafula Saikia v State of Assam, 2012 Cr LJ 3889 (Gau).",
"53. Public Prosecutor v B Ramakrishna, 1997 Cr LJ 3940 (AP).",
"54. Hossenee v Rajkrishna, (1873) 20 WR (Cr) 80. Rabi Kumar Agarwal v State of WB, 2003 Cr LJ",
"1342 (Cal), items of furniture alleged to be stolen by forcing entry into the room, no proof",
available that the complainant was in possession of such items. Charge not allowed to be,
"framed. Sashibhusan Giri v Kalakar Moharita, 2003 Cr LJ 1065 , allegation of cutting and",
"removing paddy crop from the complainant's land, but neither he nor his witness were able to",
identify the field in question and when the crop was shown there. There was dispute about,
"possession, one claiming through succession and the other through sale deed. Thus, the",
"ingredient of theft was not made out. Lila Satynarayan Pd. v Shiv Nandan Singh, 2003 Cr LJ NOC",
"34 : (2002) 2 BLJR 864 , theft of logs, no record of purchase or of possession, false charge.",
"55. Queen-Empress v Gangaram Santram, (1884) 9 Bom 135.",
"56. State of Maharashtra v Vishwanath, 1979 Cr LJ 1193 : AIR 1979 SC 1825 [LNIND 1979 SC",
316] .,
"57. The Works of Lord Macaulay, Note N, On the Chapter of offences against property.",
"58. James Fitzjames Stephen, DIGEST OF CRIMINAL LAW, 9th Edn, Article 359. Harichandran v",
"State of TN, 1997 Cr LJ 41 (Mad), the accused was admittedly the owner of the land from where",
"he removed rocks for commercial purposes. No offence. State of Rajasthan v Amit, 1997 Cr LJ",
"121 (Raj), theft of generator, no details as to generator given, chowkedar not produced in",
"evidence, delay of 15-20 days in lodging report, acquittal of accused proper.",
"59. Periyannan, (1883) 1 Weir 423; Chunnu, (1911) 8 ALJR 656.",
"60. Bande Ali Shaikh, (1939) 2 Cal 419 .",
"61. Obayya, (1898) 22 Mad 151.",
"62. Ponnurangam, (1887) 10 Mad 186.",
"63. Ramsharnagat Singh, 1966 Cr LJ 856 .",
"64. Sita Ram Rai, (1880) 3 All 181 .",
"65. Finance Co Ltd v R Khaishiulla Khan, 1993 Cr LJ 1069 (Kant).",
"66. Sundaram Finance Ltd v Mohd. Abdul Wakeel, 2001 Cr LJ 2441 (MP) Another similar case",
"Charanjit Singh Chadha v Sudhir Mehra, 2001 Cr LJ 4255 (SC), retaking things delivered under",
"hire-purchase. Sekar v Arumugham, 2000 Cr LJ 1552 (Mad) lorry financed under hire-purchase",
"and hypothecation, seized by the banker on default, no theft.",
"67. Perumal, (1955) Mad 795.",
"68. Pandita v Rahimulla Akundo, (1900) 27 Cal 501 .",
"69. HJ Ransom v Triloki Nath, (1942) 17 Luck 663 . Selvaraj v State of TN, 1998 Cr LJ 2683",
"(Mad), the victim stated that someone had stolen his money by cutting his bag, but he had not",
seen him. The person who was caught was neither identified nor was anything recovered from,
"him. Acquitted. See also Shahul Hameed v State of TN, 1998 Cr LJ 885 (Mad).",
"70. Parshottam, (1962) 64 Bom LR 788 .",
"71. Troylukho Nath Chowdhry v State, (1878) 4 Cal 366 .",
"72. Hanmanta, (1877) 1 Bom 610.",
73. 2 East PC 555.,
"74. State of HP v Jagat Ram, 1992 Cr LJ 1445 (HP).",
75. (1870) 5 MHC (Appx) xxxvi.,
"76. Bhagu : Vishnu, (1897) Unrep Cr C 928.",
"77. Balos, (1882) 1 Wier 419.",
"78. Samsuddin, (1900) 2 Bom LR 752 .",
"79. Durga Tewari, (1909) 36 Cal 758 .",
"80. Butchi v State, (1893) 17 Mad 401.",
"81. Natha Kalyan, (1871) 8 BHC (Cr C) 11.",
"82. Harmanpreet Singh Ahluwalia v State of Punjab, (2009) 7 SCC 712 [LNIND 2009 SC 1121] :",
2009 Cr LJ 3462 .,
"83. Khatabai, (1869) 6 BHC (Cr C) 9.",
"84. Krishna Shahuji, (1897) Unrep Cr C 927.",
"85. Vernede, (1886) 10 Mad 25. The appellant and two others were put up for joint trial. The",
"charges levelled against the two were under section 448 (house trespass) and section 380,",
"whereas the charge against the appellant only was under section 448, which is a summons case",
and section 380 is a warrant case. The charge against the appellant was held to be an abuse of,
the process of the court and the proceeding against him was accordingly quashed. Bhaskar,
"Chattoraj v State of WB, AIR 1991 SC 317 : 1991 Cr LJ 451 .",
"86. Karuppanan v Guruswami, (1933) ILR 56 Mad 654 : AIR 1933 Mad 434 [LNIND 1932 MAD",
175] a.,
"87. Rasananda Bindani v State of Orissa, 1992 Cr LJ 121 (Ori). See further State of Kerala v",
"Kuttan Mohanan, 1988 Cr LJ 453 (Ker), where the fact that the owner did not report the matter to",
"the police was held to be no ground for rejecting his testimony. Santu v State of MP, 2001 Cr LJ",
"4455 (Chhattisgarh), property recovered from the accused could not be proved to be stolen,",
conviction set aside.,
"88. Dhananjay v State of Bihar, (2007) 14 SCC 768 [LNIND 2007 SC 111] : 2007 Cr LJ 1440 :",
(2007) 2 KLJ 294 .,
"89. Manish Soni v State (Govt. of NCT) Delhi, 2013 Cr LJ 1949 (Del). See Abul Hassan v State",
"2009 Cr LJ 3664 (Pat), where the allegation was that appellant took away cash and wrist watch",
of informant after administering intoxicant mixed in tea. But accused is given benefit of doubt,
on the ground that the prosecution failed to produce any medical report on the record of the,
Forensic Science Laboratory that the mouth wash of the informant or his brother contained,
"intoxicant substance, sufficient to cause sedation if administered in required quantity.",
"90. Sengol v State, 2012 Cr LJ 1705 (Mad).",
THE INDIAN PENAL CODE,
CHAPTER XVII OF OFFENCES AGAINST PROPERTY,
Of Theft,
"[s 380] Theft in dwelling house, etc.",
"Whoever commits theft in any building,1 tent or vessel, which building, tent or vessel",
"is used as a human dwelling, or used for the custody of property, shall be punished",
"with imprisonment of either description for a term which may extend to seven years,",
and shall also be liable to fine.,
State Amendment,
"Tamil Nadu.—The following amendments were made by Tamil Nadu Act No. 28 of 1993,",
Section 2.,
Section 380 of the Indian Penal Code (Central Act XLV of 1860) (hereinafter in this Part,
"referred to as the principal Act), shall be renumbered as sub-section (1) of that section",
"and after sub-section (1) as so renumbered, the following sub-section shall be added,",
namely:—,
"""(2) Whoever commits theft in respect of any idol or icon in any building used as a",
place of worship 'shall be punished with rigorous imprisonment for a term which shall,
not be less than two years but which may extend to three years and with fine which,
shall not be less than two thousand rupees:,
"Provided that the court may, for adequate and special reasons to be mentioned in the",
"judgment impose a sentence of imprisonment for a term of less than two years.""",
COMMENT—,
"The object of the section is to give greater security to property deposited in a house,",
tent or vessel. Theft from a person in a dwelling house will be simple theft under,
section 379.91.,
1. 'Theft in any building'.—Building means a permanent edifice of some kind. Theft,
"should, under the section, have been committed in any such building. Theft from a",
"veranda,92. or the top of a house,93. or a brake-van,94. is not theft in a building. But",
"where the accused stole some luggage and cash from a railway carriage, when it was",
"at a railway station, it was held that though the railway carriage was not a building, the",
"railway station was, and the accused was therefore, guilty under this section.95. An",
"entrance hall surrounded by a wall in which there were two doorways but no doors,",
"which was used for custody of property, was held to be a building.96. A courtyard97. is,",
"but a compound98. is not, a building. Merely on basis of having possession of some",
"stolen articles, accused cannot be held to be guilty of offences punishable under",
sections 450 and 380.99.,
[s 380.1] CASES.—,
The only evidence against accused is the alleged recovery of gold chain at his instance.,
That cannot connect the appellant to the theft.100. The accused persons were,
suspected to have committed some offences of house-breaking and on being,
interrogated they voluntarily disclosed some places where they had committed house-,
breaking in respect of gold ornaments and then they disclosed the shop of a goldsmith,
"to whom they had sold the gold and silver ornaments. It was held that their conviction,",
based merely on uncorroborated evidence as to recovery of stolen property at their,
"instance, was highly unsafe. Accordingly, their conviction under sections 380 and 457",
"was set aside.101. In a case involving theft of an idol, the guilt of the accused could not",
be proved by circumstantial evidence. The confession of the co-accused was not,
voluntary. Acquittal of the accused was held to be justified.102.,
[s 380.2] House breaking and Theft.—,
Offence under section 454 also includes section 380. In view of the conviction for,
"section 454 of the IPC, 1860, separate conviction for the offence under section 380 of",
"the IPC, 1860 is not needed.103.",
[s 380.3] Punishment.—,
The accused was poor and rustic villager. He was the only bread winner of the family.,
He was not a previous convict. He had already faced trial for seven years. The order,
releasing him after due admonition was held to be proper.104.,
[s 380.4] Sentences in different cases can run concurrently.—,
"The Supreme Court, in Benson v State of Kerala,105. examined whether an accused, who",
is sentenced to undergo different periods of sentences punished in different cases,
"should undergo the imprisonment consecutively or can undergo concurrently, and held",
"that in terms of sub-section (1) of section 427 Cr PC, 1973, if a person already",
undergoing a sentence of imprisonment is sentenced on a subsequent conviction to,
"imprisonment, such subsequent term of imprisonment would normally commence at",
"the expiration of the imprisonment to which he was previously sentenced, however, this",
normal Rule is subject to a qualification and it is within the powers of the Court to,
direct that the subsequent sentence shall run concurrently with the previous sentence.,
[s 380.5] Probation.—,
"Taking note of the age of accused which is put at 20 years, he could be given the",
"benefit of the Probation of Offenders Act, 1958.106.",
"91. Tandi Ram v State, (1876) PR No. 14 of 1876.",
"92. (1870) 1 Weir 435; contra, Jabar, (1880) PR No. 1 of 1881.",
93. (1866) 1 Weir 435.,
94. (1880) 1 Weir 436.,
"95. Sheik Saheb, (1886) Unrep Cr C 293.",
"96. Dad, (1878) PR No. 10 of 1879.",
"97. Ghulam Jelani, (1889) PR No. 16 of 1889.",
"98. Rama, (1889) Unrep Cr C 484.",
"99. Bablu Alias Mahendra v State of Madhya Pradesh, 2009 Cr LJ 1856 (MP).",
"100. Azeez v State of Kerala, (2013) 2 SCC 184 [LNIND 2013 SC 54] .",
"101. Meghaji Godaji Thakore v State of Gujarat, 1993 Cr LJ 730 (Guj); Kuldip Singh v State of",
"Delhi, (2003) 12 SCC 528 [LNIND 2003 SC 1071] : AIR 2004 AC 771 : (2004) 109 DLT 190 ,",
conviction set aside because of doubtful recovery. The accused was employed in the house of,
the deceased. He was removed but reemployed in the factory of the deceased. This fact had to,
"be excluded because it was not put to him during his examination under section 313, Cr PC,",
"1973. The accused being a domestic help, the presence of his fingerprints in the household",
articles was natural and not of any special significance. He was not the only person employed,
the deceased being in the habit of changing servants.,
"102. State of HP v Raj Kumar, 1004 Cr LJ 894 (HP). Om Prakash v State of Rajasthan, 1998 Cr LJ",
"1636 : AIR 1998 SC 1220 [LNIND 1998 SC 87] , five accused persons robbed complainant of his",
wrist watch and currency notes and ran away. The witnesses chased them out to no use and,
went to police station. But two of them were acquitted. Conviction of the rest of them was,
"altered from section 395 to one under section 392, (punishment for robbery). Raju v State of",
"Rajasthan, 1997 Cr LJ 4547 (Raj), woman attacked when alone by accused persons, they",
"strangulated her, recovery of stolen articles on their information, evidence of sons and",
"daughters-in-law of deceased, conviction under sections 302, 380 and 454.",
"103. K E Lokesha v State of Karnataka, 2012 Cr LJ 2120 (Kar).",
"104. State of HP v Ishwar Dass, 1999 Cr LJ 3931 (HP).",
"105. Benson v State of Kerala, (2016) 10 SCC 307 [LNIND 2016 SC 408] : 2016 (9) Scale 670 .",
"106. E Lokesha v State of Karnataka, 2012 Cr LJ 2120 (Kar).",
THE INDIAN PENAL CODE,
CHAPTER XVII OF OFFENCES AGAINST PROPERTY,
Of Theft,
[s 381] Theft by clerk or servant of property in possession of master.,
"Whoever, being a clerk or servant, or being employed in the capacity of a clerk or",
"servant, commits theft in respect of any property in the possession of his master or",
"employer, shall be punished with imprisonment of either description for a term which",
"may extend to seven years, and shall also be liable to fine.",
COMMENT—,
This section provides for a severe punishment when a clerk or servant has committed,
theft because he has greater opportunities of committing this offence owing to the,
confidence reposed in him. When the possession of the stolen property is with the,
"master, this section applies; when it is with the servant, section 408 applies. Where",
"some policemen stole a sum of money shut up in a box, and placed it in the Police",
"Treasury building, over which they were mounting guard as sentinels, they were held to",
have committed an offence under this section and not under section 409.107. Where,
"the property was not in possession of the master, or the money was entrusted to the",
"accused and he misappropriated the same, the offence under section 381 will not be",
attracted.108.,
"107. Juggurnath Singh, (1865) 2 WR (Cr) 55; Radhey Shyam v State of UP, 2002 Cr LJ 1227 (All),",
domestic servants who were prosecuted for theft and murder of their master remained on duty,
"even when investigation was going on, nothing was found against them, they were not allowed",
"to be prosecuted only on the basis of suspicion. Slim Babamiya Sutar v State of Maharashtra,",
"2000 Cr LJ 2696 (Bom), murder, connection of the accused with it not proved, but two gold",
"articles of the deceased were recovered from the accused, hence convicted under section 381,",
"sentence of three years RI reduced to 6 months already undergone, accused directed to be",
"released. N Narasimha Kumar v State of AP, 2003 Cr LJ 3188 (AP), theft by clerk of the State",
Public Service Commission's question papers and stealing xerox copies. Investigating Officer,
was not examined. No recovery of question paper from the accused. His conviction was set,
"aside. State of HP v Dev Prakash, 2003 Cr LJ 2882 (HP), alleged theft of stamp papers from the",
strong room of the District Treasury Officer. Not proved.,
108. Vijay Kumar v State of Rajasthan 2012 Cr LJ 2790 (Raj).,
THE INDIAN PENAL CODE,
CHAPTER XVII OF OFFENCES AGAINST PROPERTY,
Of Theft,
"[s 382] Theft after preparation made for causing death, hurt or restraint in",
order to the committing of the theft.,
"Whoever commits theft, having made preparation for causing death, or hurt, or",
"restraint, or fear of death, or of hurt, or of restraint, to any person, in order to the",
"committing of such theft, or in order to the effecting of his escape after the committing",
"of such theft, or in order to the retaining of property taken by such theft, shall be",
"punished with rigorous imprisonment for a term which may extend to ten years, and",
shall also be liable to fine.,
ILLUSTRATIONS,
"(a) A commits theft on property in Z's possession; and, while committing this theft,",
"he has a loaded pistol under his garment, having provided this pistol for the",
purpose of hurting Z in case Z should resist. A has committed the offence,
defined in this section.,
"(b) A picks Z's pocket, having posted several of his companions near him, in order",
"that they may restrain Z, if Z should perceive what is passing and should resist,",
or should attempt to apprehend A. A has committed the offence defined in this,
section.,
COMMENT—,
Under this section it is not necessary to either to cause hurt or even to make an,
"attempt to cause hurt. Mere preparation to cause hurt should the occasion arise e.g., to",
affect his escape is enough to bring the accused within the mischief of this section.,
One who keeping a knife with him commits theft may be liable under this section even,
though there was no occasion to wield the knife or to cause injury.109.,
"If hurt is actually caused when a theft is committed, the offence is punishable as",
"robbery, and not under this section.110. In robbery there is always injury. In offences",
under this section the thief is full of preparation to cause hurt but he may not cause it.,
Offences against Property—Extortion,
"109. Re Diwan Singh, 1980 Cr LJ 760 (MP).",
"110. Hushrut Sheikh, (1866) 6 WR (Cr) 85.",
THE INDIAN PENAL CODE,
CHAPTER XVII OF OFFENCES AGAINST PROPERTY,
Of Theft,
Of Extortion,
[s 383] Extortion.,
"Whoever intentionally puts any person in fear of any injury1 to that person, or to any",
"other, and thereby dishonestly induces the person so put in fear to deliver to any",
"person any property2 or valuable security, or anything signed or sealed which may be",
"converted into a valuable security, commits ""extortion"".",
ILLUSTRATIONS,
(a) A threatens to publish a defamatory libel concerning Z unless Z gives him,
money. He thus induces Z to give him money. A has committed extortion.,
"(b) A threatens Z that he will keep Z's child in wrongful confinement, unless Z will",
sign and deliver to A a promissory note binding Z to pay certain moneys to A. Z,
signs and delivers the note. A has committed extortion.,
(c) A threatens to send club-men to plough up Z's field unless Z will sign and deliver,
"to B a bond binding Z under a penalty to deliver certain produce to B, and",
thereby induces Z to sign and deliver the bond. A has committed extortion.,
"(d) A, by putting Z in fear of grievous hurt, dishonestly induces Z to sign or affix his",
seal to a blank paper and deliver it to A. Z signs and delivers the paper to A.,
"Here, as the paper so signed may be converted into a valuable security. A has",
committed extortion.,
THE INDIAN PENAL CODE,
CHAPTER XVII OF OFFENCES AGAINST PROPERTY,
Of Theft,
Of Extortion,
[s 384] Punishment for extortion.,
Whoever commits extortion shall be punished with imprisonment of either description,
"for a term which may extend to three years, or with fine, or with both.",
COMMENT—,
This offence takes a middle place between theft and robbery.,
[s 384.1] Ingredients.—,
The section requires two things:—,
(1) intentionally putting a person in fear of injury to himself or another;,
(2) dishonestly inducing the person so put in fear to deliver to any person any,
property or valuable security.,
These ingredients have been restated by the Supreme Court as follows:,
(1) the accused must put any person in fear of injury to him or to any other person;,
(2) the putting of a person in such fear must be intentional;,
(3) the accused must thereby induce the person so put in fear to deliver to any,
person any property or anything signed or sealed which may be converted into a,
valuable security;,
(4) such inducement must be done dishonestly.111.,
[s 384.2] Theft and extortion.—,
Extortion is thus distinguished from theft—,
(1) Extortion is committed by the wrongful obtaining of consent. In theft the,
offender takes without the owner's consent.112.,
(2) The property obtained by extortion is not limited as in theft to movable property,
only. Immovable property may be the subject of extortion.,
(3) In extortion the property is obtained by intentionally putting a person in fear of,
"injury to that person or to any other, and thereby dishonestly inducing him to",
part with his property. In theft the element of force does not arise.,
1. 'Puts any person in fear of any injury'.—The 'fear' must be of such a nature and,
"extent as to unsettle the mind of the person on whom it operates, and takes away from",
his acts that element of free voluntary action which alone constitutes consent.113.,
"Thus threatening to expose a clergyman, who had criminal intercourse with a woman in",
"a house of ill-fame in his own church and village, to his own bishop, and to the",
"archbishop, and also to publish his shame in the newspapers, was held to be such a",
threat as men of ordinary firmness could not be expected to resist.114. The making use,
of real or supposed influence to obtain money from a person against his will under,
"threat, in case of refusal, of loss of appointment, was held to be extortion.115. The",
accused husband took his wife to a forest and obtained her ornaments under threats to,
kill her. The ornaments were subsequently recovered from him. He was held guilty of,
"the offence of extortion, not robbery.116.A refusal to allow people to carry away fire-",
wood collected in a Government forest without payment of proper fees;117. a payment,
taken from the owners of trespassing cattle under the influence of a threat that the,
cattle would be impounded if the payment were refused;118. the obtaining of a bond,
"under the threat of non-rendering of service as a vakil,119. and a refusal to perform a",
marriage ceremony and enter the marriage in the register unless the accused was paid,
"Rs. 5,120. were held not to constitute extortion.",
[s 384.3] Threat of criminal accusation.—,
"The terror of criminal charge, whether true or false, amounts to a fear of injury.121. The",
guilt or innocence of the party threatened is immaterial. Even the threat need not be a,
"threat to accuse before a judicial tribunal, a threat to charge before any third person is",
enough.122.,
Housing Loan taken by the complainant. Proceedings initiated by issuing notice under,
"section 13 (2) of SARFAESI Act, 2002 would not amount to extortion.123.",
2. 'Dishonestly induces the person … to deliver to any person any property'.— Delivery,
by the person put in fear is essential in order to constitute the offence of extortion.,
"Where a person through fear offers no resistance to the carrying off of his property, but",
"does not deliver any of the property to those who carry it off, the offence committed",
will be robbery and not extortion.124. The offence of extortion is not complete before,
actual delivery of the possession of the property by the person put in fear.125.,
When the accused honestly believes that the complainant had taken the money,
"belonging to him (the accused), an attempt to get it back cannot be said to be with the",
intention of causing wrongful loss to him.126.,
Where the headmaster of a school called a lady teacher to a place where he was alone,
"and induced her to sign three blank papers by threatening an attack on her modesty,",
the Supreme Court held that it amounted to an offence under this section.127.,
An accused was charged with the offence of murder by resorting to extortion. The,
"prosecution failed to prove several particulars relating to the major offence, but proved",
the commission of minor offence punishable under section 384 read with section 34.,
The conviction of the accused for the minor offences under section 384 read with,
section 34 was held to be proper.,
[s 384.4] 'To any person'.—,
"It is not necessary that the threat should be used, and the property received, by one and",
the same individual. It may be a matter of arrangement between several persons that,
"the threats should be used by some, and property received by others; and they all would",
be guilty of extortion.128.,
[s 384.5] CASES.—,
The accused persons came to the place of their victims with fire arms and forced them,
to handover their gun. The accused then abducted them and shot them dead in nearby,
orchard. The Court said that all of them who came there to commit extortion must be,
attributed knowledge that killings might take place in the prosecution of their object. All,
of them were held vicariously liable for murder. Their conviction under sections,
384/149 and 302/149 was proper.129.,
[s 384.6] Compounding.—,
"The offences under sections 384 and 506 Part II IPC, 1860 are not compoundable",
"under section 320 of the Cr PC, 1973. Therefore, the prayer of compounding the",
offences made by the complainant and A1 in their joint application supported by their,
affidavits cannot be legally accepted.130.,
"111. Dhananjay v State of Bihar, (2007) 14 SCC 768 [LNIND 2007 SC 111] : 2007 Cr LJ 1440 ; J",
Senthil Kumar v State of Jhar 2006 Cr LJ 4524 (Jha).,
"112. See the judgment of the Supreme Court in Dhananjay v State of Bihar, (2007) 14 SCC 768",
[LNIND 2007 SC 111] .,
"113. Walton v Walton, (1863) 9 Cox 268. Bare threats are not enough. Ramjee Singh v State of",
"Bihar, 1987 Cr LJ 137 (Pat).",
"114. Miard, (1844) 1 Cox 22.",
"115. Meer Abbas Ali v Omed Ali, (1872) 18 WR 17 .",
"116. State of Karnataka v Basavegowda, 1997 Cr LJ 4386 (Kant). See also Raju v State of",
"Rajasthan, 1997 Cr LJ 4547 (Raj).",
"117. Abdul Kadar v State, (1866) 3 BHC (Cr C) 45.",
"118. (1880) 1 Weir 438, 440; Habib-ul-Razzaq v State, (1923) 46 All 81 .",
119. (1870) 5 MHC (Appex) xiv.,
"120. Nizam Din v State, (1923) 4 Lah 179.",
"121. Mobarruk, (1867) 7 WR (Cr) 28.",
"122. Robinson, (1837) 2 M & R 14; Abdulvahab Abdulmajid Shaikh v State of Gujarat, (2007) 4",
"SCC 257 [LNIND 2007 SC 527] : (2007) 3 Guj LR 1841, conviction for extortion, all the essentials",
proved.,
"123. GIC Housing Finance Ltd v The State of Maharashtra, 2016 Cr LJ 4824 (Bom) : 2017 (2)",
Bom CR (Cr) 234 .,
"124. Duleelooddeen Sheik, (1866) 5 WR (Cr) 19.",
"125. Labhshanker, AIR 1955 Sau 42 .",
"126. Mahadeo v State, (1950) Nag 715.",
"127. Chander Kala v Ram Kishan, AIR 1985 SC 1268 [LNIND 1985 SC 166] : 1985 Cr LJ 1490 :",
(1985) 4 SCC 212 [LNIND 1985 SC 166] : 1985 SCC (Cr) 491.,
"128. Shankar Bhagvat, (1866) 2 BHC 394.",
"129. Rameshwar Pandey v State of Bihar, 2005 Cr LJ 1407 : AIR 2005 SC 1064 [LNIND 2005 SC",
1058] : (2005) 9 SCC 210 [LNIND 2005 SC 1058] .,
130. Karipi Rasheed v State of AP (2009) 17 SCC 515 [LNINDU 2009 SC 26] .,
THE INDIAN PENAL CODE,
CHAPTER XVII OF OFFENCES AGAINST PROPERTY,
Of Theft,
Of Extortion,
"[s 385] Putting, person in fear of injury in order to commit extortion.",
"Whoever, in order to the committing of extortion, puts any person in fear, or attempts",
"to put any person in fear, of any injury, shall be punished with imprisonment of either",
"description for a term which may extend to two years, or with fine, or with both.",
COMMENT—,
By this section a distinction between the inchoate and the consummated offence is,
recognised. The attempt to commit extortion may proceed so far as to put a person in,
"fear of injury, or there may be an attempt to excite such fear; but there may not be any",
"delivery of property, etc. This section punishes the putting of a person in fear of injury",
in order to commit extortion.,
"The injury contemplated must be one which the accused can inflict, or cause to be",
inflicted. A threat that God will punish a man for some act is not such an injury. No,
injury can be caused or threatened to be caused unless the act done is either an,
offence or such as may properly be made the basis of a civil action.131.,
[s 385.1] CASES.—,
A cloth-seller was threatened with the imposition of a fine if he continued to sell foreign,
"cloth. He continued to sell such cloth, and, to enforce payment of the fine, his shop was",
picketed for two hours and he lost a certain amount of business and ultimately paid the,
fine. It was held that the person responsible for the picketing was guilty of an offence,
under this section as well as under section 384.132. Where a mukhtar in a criminal case,
threatened with intent to extort money to put questions to prosecution witnesses which,
"were irrelevant, scandalous and indecent, and which were intended to annoy and insult,",
it was held that he was guilty under this section.133. No sanction is necessary for,
prosecuting a police officer under this section for his act abetting the accused to extort,
money from a person by putting him under fear of arrest. Such an act is not a part of,
his official functions.134.,
"131. Tanumal Udhasing, (1944) Kar 146 .",
"132. Chaturbhuj, (1922) 45 All 137 .",
"133. Fazlur Rahman, (1929) 9 Pat 725.",
"134. Chand Ahuja v Gautam K. Hoda, 1987 Cr LJ 1328 (P&H).",
THE INDIAN PENAL CODE,
CHAPTER XVII OF OFFENCES AGAINST PROPERTY,
Of Theft,
Of Extortion,
[s 386] Extortion by putting a person in fear of death or grievous hurt.,
Whoever commits extortion by putting any person in fear of death or of grievous hurt,
"to that person or to any other, shall be punished with imprisonment of either",
"description for a term which may extend to ten years, and shall also be liable to fine.",
COMMENT—,
If the fear caused is that of death or grievous hurt it naturally causes great alarm. The,
"section therefore, provides for severe penalty in such cases.",
Where the accused wrote letters demanding ransom from the father of the boy whom,
"they kidnapped, putting the father in fright of the boy being murdered and there was",
"throughout the likelihood of the boy being murdered if the ransom money was not paid,",
the accused were held guilty under this section.135.,
"135. Ram Chandra v State, AIR 1957 SC 381 : 1957 Cr LJ 567 .",
THE INDIAN PENAL CODE,
CHAPTER XVII OF OFFENCES AGAINST PROPERTY,
Of Theft,
Of Extortion,
"[s 387] Putting person in fear of death or of grievous hurt, in order to commit",
extortion.,
"Whoever, in order to the committing of extortion, puts or attempts to put any person in",
"fear of death or of grievous hurt to that person or to any other, shall be punished with",
"imprisonment of either description for a term which may extend to seven years, and",
shall also be liable to fine.,
COMMENT—,
The relation between this section and section 386 is the same as that between section,
385 and section 384.,
THE INDIAN PENAL CODE,
CHAPTER XVII OF OFFENCES AGAINST PROPERTY,
Of Theft,
Of Extortion,
[s 388] Extortion by threat of accusation of an offence punishable with death or,
"imprisonment for life, etc.",
Whoever commits extortion by putting any person in fear of an accusation against,
"that person or any other, of having committed or attempted to commit any offence",
"punishable with death, or with 136.[imprisonment for life], or with imprisonment for a",
term which may extend to ten years or of having attempted to induce any other person,
"to commit such offence, shall be punished with imprisonment of either description for",
"a term which may extend to ten years, and shall also be liable to fine; and, if the",
"offence be one punishable under section 377 of this Code, may be punished with 137.",
[imprisonment for life].,
COMMENT—,
It is immaterial whether the person against whom the accusation is threatened be,
"innocent or guilty, if the prisoner intended to extort money. The aggravating",
circumstance under this section is the threat of an accusation of an offence punishable,
"with imprisonment for life, or with imprisonment for ten years. If the accusation is of",
unnatural offence then the penalty provided is severer.,
"136. Subs. by Act 26 of 1955, section 117 and Sch, for ""transportation for life"" (w.e.f. 1 January",
1956).,
"137. Subs. by Act 26 of 1955, section 117 and Sch, for ""transportation for life"" (w.e.f. 1 January",
1956).,
THE INDIAN PENAL CODE,
CHAPTER XVII OF OFFENCES AGAINST PROPERTY,
Of Theft,
Of Extortion,
"[s 389] Putting person in fear of accusation of offence, in order to commit",
extortion.,
"Whoever, in order to the committing of extortion, puts or attempts to put any person in",
"fear of an accusation, against that person or any other, of having committed, or",
attempted to commit an offence punishable with death or with 138.[imprisonment for,
"life], or with imprisonment for a term which may extend to ten years, shall be",
punished with imprisonment of either description for a term which may extend to ten,
"years, and shall also be liable to fine; and, if the offence be punishable under section",
"377 of this Code, may be punished with 139.[imprisonment for life].",
COMMENT—,
This section bears the same relation to section 388 as section 385 bears to section,
384.,
"138. Subs. by Act 26 of 1955, section 117 and Sch, for ""transportation for life"" (w.e.f. 1 January",
1956).,
"139. Subs. by Act 26 of 1955, section 117 and Sch, for ""transportation for life"" (w.e.f. 1 January",
1956).,
THE INDIAN PENAL CODE,
CHAPTER XVII OF OFFENCES AGAINST PROPERTY,
Of Theft,
Of Robbery and Dacoity,
[s 390] Robbery.,
In all robbery there is either theft or extortion.,
When theft is robbery.,
"Theft is ""robbery"" if, in order to the committing of the theft, or in committing the",
"theft, or in carrying away1 or attempting to carry away property obtained by the",
"theft, the offender, for that end,2 voluntarily causes3 or attempts to cause to any",
"person4 death or hurt or wrongful restraint, or fear of instant death or of instant",
"hurt, or of instant wrongful restraint.",
When extortion is robbery.,
"Extortion is ""robbery"" if the offender, at the time of committing the extortion, is in",
"the presence of the person put in fear, and commits the extortion by putting that",
"person in fear of instant death, of instant hurt, or of instant wrongful restraint to",
"that person or to some other person, and, by so putting in fear, induces the person",
so put in fear then and there to deliver up the thing extorted.,
Explanation.—The offender is said to be present if he is sufficiently near to put the,
"other person in fear of instant death, or instant hurt, or of instant wrongful",
restraint.,
ILLUSTRATIONS,
(a) A holds Z down and fraudulently takes Z's money and jewels from Z's clothes,
"without Z's consent. Here A has committed theft, and in order to the committing",
"of that theft, has voluntarily caused wrongful restraint to Z. A has therefore",
committed robbery.,
"(b) A meets Z on the highroads, shows a pistol, and demands Z's purse. Z in",
"consequence, surrenders his purse. Here A has extorted the purse from Z by",
"putting him in fear of instant hurt, and being at the time of committing the",
extortion in his presence. A has therefore committed robbery.,
(c) A meets Z and Z's child on the highroad. A takes the child and threatens to fling,
"it down a precipice, unless Z delivers his purse. Z, in consequence delivers his",
"purse. Here A has extorted the purse from Z, by causing Z to be in fear of instant",
hurt to the child who is there present. A has therefore committed robbery on Z.,
"(d) A obtains property from Z by saying—""Your child is in the hands of my gang, and",
"will be put to death unless you send us ten thousand rupees"". This is extortion,",
"and punishable as such; but it is not robbery, unless Z is put in fear of the instant",
death of his child.,
COMMENT—,
Robbery is a special and aggravated form of either theft or extortion. The chief,
distinguishing element in robbery is the presence of imminent fear of violence. The,
"second para distinguishes robbery from theft, the third distinguishes it from extortion.",
[s 390.1] Object.—,
"The authors of the Code observe: ""There can be no case of robbery which does not fall",
within the definition either of theft or of extortion; but in practice it will perpetually be a,
matter of doubt whether a particular act of robbery was a theft or extortion. A large,
"proportion of robberies will be half theft, half extortion. A seizes Z, threatens to murder",
"him, unless he delivers all his property, and begins to pull off Z's ornaments. Z in terror",
"begs that A will take all he has, and spare his life, assists in taking off his ornaments,",
"and delivers them to A. Here, such ornaments as A took without Z's consent are taken",
by theft. Those which Z delivered up from fear of death are acquired by extortion. It is,
"by no means improbable that Z's right-arm bracelet may have been obtained by theft,",
and left-arm bracelet by extortion; that the rupees in Z's girdle may have been obtained,
"by theft, and those in his turban by extortion. Probably in nine-tenths of the robberies",
"which are committed, something like this actually takes place, and it is probable that a",
few minutes later neither the robber nor the person robbed would be able to recollect in,
what proportions theft and extortion were mixed in the crime; nor is it at all necessary,
"for the ends of justice that this should be ascertained. For though, in general the",
consent of a sufferer is a circumstance which vary materially modifies the character of,
"the offence, and which ought, therefore, to be made known to the Courts, yet the",
consent which a person gives to the taking of his property by a ruffian who holds a,
"pistol to his breast is a circumstance altogether immaterial"".140.",
The Explanation and illustrations (b) and (c) mark the distinction between simple,
extortion and extortion which is robbery. Illustration (a) indicates when theft is robbery.,
"An analysis of section 390 IPC, 1860 would show that in order that theft may constitute",
"robbery, prosecution has to establish:",
(a) if in order to the committing of theft; or,
(b) in committing the theft; or,
(c) in carrying away or attempting to carry away property obtained by theft; or,
(d) the offender for that end i.e. any of the ends contemplated by (a) to (c); or,
(e) voluntarily causes or attempts to cause to any person death or hurt or wrongful,
restraint or fear of instant death or of instant hurt or instant wrongful restraint.,
"In other words, theft would only be robbery if for any of the ends mentioned in (a) to (c)",
the offender voluntarily causes or attempts to cause to any person death or hurt or,
wrongful restraint or fear of instant death or of instant hurl or instant wrongful restraint.,
"If the ends does not fall within (a) to (c) but, the offender still causes or attempts to",
cause to any person death or hurt or wrongful restraint or fear of instant death or of,
"instant hurt or instant wrongful restraint, the offence would not be robbery. The Court",
emphasised that (a) or (b) or (c) have to be read conjunctively with (d) and (e). It is only,
when (a) or (b) or (c) co-exist with (d) and (e) or there is a nexus between any of them,
and (d) and (e) would theft amount to robbery.141.,
"[s 390.2] Theft, extortion and robbery.—",
"Theft or extortion when caused with violence causing death or fear of death, hurt or",
"wrongful restraint is robbery. When there is no theft, as a natural corollary, there cannot",
be robbery. Robbery is only an aggravated form of theft or extortion. Aggravation is in,
"the use of violence causing death or fear of death, hurt or restraint. Violence must be in",
"the course of theft and not subsequently. Also, it is not necessary that violence should",
"actually be committed, even attempt to commit it is enough.142.",
"1. 'Carrying away'.—Even if death, hurt or wrongful restraint, or fear of any of these, is",
"caused after committing theft, in order to carry away the property obtained by theft,",
this offence would be committed.,
"2. 'For that end'.—Death, hurt or wrongful restraint must be caused in committing theft,",
"or in carrying away property obtained by theft. The expression ""for that end"" clearly",
means that the hurt caused by the offender must be with the object of facilitating the,
committing of theft or must be caused while the offender is committing theft or is,
carrying away or is attempting to carry away property obtained by theft.143. Where a,
person caused hurt only to avoid capture when surprised while stealing144. it was held,
"that theft, and not robbery, was committed. The use of violence will not convert the",
"offence of theft into robbery, unless the violence is committed for one of the ends",
specified in this section. Where the accused abandoned the property obtained by theft,
"and threw stones at his pursuer to deter him from continuing the pursuit, it was held",
that the accused was guilty of theft and not of robbery.145. The victim was relieved of,
his watch in a running train by one of the two accused who were associates in crime.,
"As the snatcher was trying to get down from the train, the victim raised alarm.",
Whereupon the second accused gave a slap to the victim. It was held that the hurt,
"caused was directly related to the theft i.e., to facilitate carrying away of the property",
"obtained by theft and as such the accused were rightly convicted under section 392,",
"IPC, 1860.146.",
3. 'Voluntarily causes'.—These words denote that an accidental infliction of injury by a,
"thief will not convert his offence into robbery. Thus, where a person while cutting a",
"string, by which a basket was tied, with intent to steal it, accidentally cut the wrist of the",
"owner, who at the moment tried to seize and keep the basket, and ran away with it, it",
was held that the offence committed was theft and not robbery.147. But where in,
"committing theft, there is indubitably an intention seconded by an attempt to cause",
"hurt, the offence is robbery.148. In order to make an offence of theft a robbery there",
must be either theft and injury or threat of injury while committing theft.149.,
4. 'Person'.—The word 'person' cannot be so narrowly construed as to exclude the dead,
body of a human being who was killed in the course of the same transaction in which,
theft was committed.150.,
[s 390.3] CASES.—,
"Where participation of the accused, was not explained by the prosecution and there",
"were contradictions in the evidence of prosecution witnesses, the Court acquitted the",
accused.151.,
The accused sprinkled chilli powder in the eyes of certain persons and snatched their,
attaches containing cash. The evidence of persons who were carrying was found to be,
reliable. Cash was recovered as a result of disclosures made by the accused.,
"Presumption under section 114 of the Indian Evidence Act, 1872 applied. The accused",
was accordingly convicted.152.,
"140. Note N, p 162.",
"141. State of Maharashtra v Joseph Mingel Koli, 1997 (2) Crimes 228 [LNIND 1996 BOM 667]",
(Bom.).,
"142. Venu v State of Karnataka, (2008) 3 SCC 94 [LNIND 2008 SC 208] : (2008) 1 SCC (Cr) 623 :",
AIR 2008 SC 1199 [LNIND 2008 SC 208] : 2008 Cr LJ 1634 .,
"143. Venu v State of Karnataka, (2008) 3 SCC 94 [LNIND 2008 SC 208] : AIR 2008 SC 1199",
[LNIND 2008 SC 208] : 2008 Cr LJ 1634 .,
"144. Kalio Kerio, (1872) Unrep Cr C 65.",
"145. (1865) 1 Weir 442; Kalio Kiero, sup.",
"146. Harish Chandra, 1976 Cr LJ 1168 : AIR 1976 SC 1430 : (1976) 2 SCC 795 .",
"147. Edwards, (1843) 1 Cox 32.",
"148. Teekai Bheer, (1866) 5 WR (Cr) 95.",
"149. Padmanava Mohapatra, 1983 Cr LJ NOC 238 (Ori). Proved case of robbery and murder.",
"State of Kerala v Naduvectil Vishwanathan, 1991 Cr LJ 1501 .",
"150. Jamnadas, AIR 1963 MP 106 [LNIND 1962 MP 173] .",
"151. Prabhat Marak v State of Tripura, 2011 Cr LJ 1844 (Gau).",
"152. Rameshwar Soni v State of MP, 1997 Cr LJ 3418 (MP). As to when theft becomes robbery",
"see State of Maharashtra v Vinayak Tukaram, 1997 Cr LJ 3988 (Bom), here the accused snatched",
three gold buttons from the shirt of the victim at a railway platform. He gave a knife blow on,
being caught. Convicted for robbery. The Court said that it could not be contended that he gave,
the knife blow only to extricate himself from the clutches of the person holding him and to,
ensure the taking away of the stolen gold buttons.,
THE INDIAN PENAL CODE,
CHAPTER XVII OF OFFENCES AGAINST PROPERTY,
Of Theft,
Of Robbery and Dacoity,
[s 391] Dacoity.,
"When five or more persons conjointly commit or attempt to commit a robbery, or",
where the whole number of persons conjointly committing or attempting to commit a,
"robbery, and persons present and aiding such commission or attempt, amount to five",
"or more, every person so committing, attempting or aiding, is said to commit",
"""dacoity"".",
COMMENT—,
"Dacoity is robbery committed by five or more persons, otherwise there is no difference",
between dacoity and robbery. The gravity of the offence consists in the terror it causes,
by the presence of a number of offenders. Abettors who are present and aiding when,
"the crime is committed are counted in the number. Section 391 IPC, 1860 explains the",
offence of 'dacoity'. When five or more persons conjointly commit or attempt to,
"commit a robbery, or where the whole number of persons conjointly committing or",
"attempting to commit a robbery, and persons present and aiding such commission and",
"attempt amount to five or more, every person so committing, attempting or aiding, is",
"said to commit 'dacoity'. Under section 392 IPC, 1860, the offence of 'robbery'",
simpliciter is punishable with rigorous imprisonment which may extend to ten years or,
"14 years depending upon the facts of a given case. Section 396 IPC, 1860 brings within",
"its ambit a murder committed along with 'dacoity'. In terms of this provision, if any one",
"of the five or more persons, who are conjointly committing dacoity, commits murder in",
"so committing dacoity, every one of those persons shall be punished with death or",
imprisonment for life or rigorous imprisonment for a term which may extend to ten,
"years and shall also be liable to fine. On a plain reading of these provisions, it is clear",
"that to constitute an offence of 'dacoity', robbery essentially should be committed by",
"five or more persons. Similarly, to constitute an offence of 'dacoity with murder' any one",
"of the five or more persons should commit a murder while committing the dacoity, then",
"every one of such persons so committing, attempting to commit or aiding, by fiction of",
"law, would be deemed to have committed the offence of murder and be liable for",
punishment provided under these provisions depending upon the facts and,
circumstances of the case.153.,
Dacoity is perhaps the only offence which the Legislature has made punishable at four,
"stages. When five or more persons assemble for the purpose of committing a dacoity,",
each of them is punishable under section 402 merely on the ground of joining the,
assembly. Another stage is that of preparation and if any one makes preparation to,
"commit a dacoity, he is punishable under section 399. The definition of 'dacoity' in this",
"section shows that the other two stages, namely, the stage of attempting to commit",
"and the stage of actual commission of robbery, have been treated alike, and come",
"within the definition.154. In other words, attempt to commit dacoity is also dacoity.",
"""It will, therefore, be seen that it is possible to commit the offence of dacoity under",
"section 395, IPC, 1860, by merely attempting to commit a robbery by five or more",
"persons without being successful in getting any booty whatsoever. Thus, if in a",
particular case the dacoits are forced to retreat due to stiff opposition from the,
"inmates or villagers without collecting any booty, then it must be held that the offence",
of dacoity is completed the moment the dacoits take to their heels without any,
"booty"".155. Even in such a case all the dacoits can be convicted and punished under",
"section 395, IPC, 1860.156.",
"In a case of dacoity the circumstance that the inmates of the house, seeing the large",
"number of dacoits, do not offer any resistance and no force or violence is required or",
used does not reduce the dacoity to theft.157.,
[s 391.1] 'Conjointly'.—,
This word manifestly refers to united or concerted action of the persons participating,
in the transaction. It is only when their individual action can be properly referred to their,
concerted action that the question of conviction under this section can arise.158. When,
there is doubt as to how many persons are involved in commission of offence and the,
"accused/appellants were not identified during Test Identification Parade, they are",
entitled to benefit of doubt.159.,
[s 391.2] Five or more persons.—,
"Interpretation of section 391 IPC, 1860 is simple, that there must be at least five",
persons in a dacoity; the section nowhere says that minimum five persons must be,
convicted of it.160.,
[s 391.3] CASES.—,
"Where the allegation was that on the day of incident, victim was travelling on scooter",
"with cash, two scooter borne accused armed with sword, knife, club and pistol stopped",
"victim, asked him to leave scooter and get away and then accused with their",
"accomplices fled away with scooter, accused were acquitted on the ground that test",
identification parade was conducted after 46 days of arrest of alleged accused.161.,
The accused persons took away gold ornaments and service revolver of the victim.,
"They were apprehended and, on the basis of their statements, stolen articles were",
recovered. Identification of the accused persons and the articles was made by the,
victim at TI parade. The conviction of the accused person was held to be proper.162.,
Where there were only five named accused who committed the dacoity and out of five,
"two were acquitted holding that only three took part in the offence, it was held that the",
"remaining three could not be convicted of dacoity, as the offence of dacoity could not",
be committed by less than five persons.163. Where in spite of the acquittal of a number,
"of persons, it is found as a fact that along with the persons convicted there were other",
"unidentified persons who participated in the offence, bringing the total number of",
"participants to five or more, it was held that the conviction of the identified persons,",
"though less than five, was perfectly correct.164. Recovery of articles shortly after a",
dacoity at the instance of the accused persons has been held by the Supreme Court to,
be sufficient for conviction under section 396 as well as under section 412.165.,
"153. Rafiq Ahmed @ Rafi v State of UP, (2011) 8 SCC 300 [LNIND 2011 SC 726] : AIR 2011 SC",
3114 [LNIND 2011 SC 726] .,
"154. Dhanpat, AIR 1960 Pat 582 .",
"155. R Deb, PRINCIPLES OF CRIMINOLOGY, CRIMINAL LAW AND INVESTIGATION, 2nd Edn, vol II,",
p 780.,
"156. Shyam Behari v State, 1957 Cr LJ 416 (SC-Para 5).",
"157. Ram Chand, (1932) 55 All 117 .",
"158. Dambaru Dhar Injal, (1951) 3 Ass 365.",
"159. Musku Pentu v State of AP, 2005 Cr LJ 1355 (AP).",
"160. Allaudin v State (NCT of Delhi), 2016 Cr LJ 1617 (Del) : 2016 (2) RCR (Criminal) 734.",
"161. Asif Ahmad v State of Chhattisgarh, 2011 Cr LJ 4461 (Cha).",
"162. Lalu v State of Orissa, 2003 Cr LJ 1677 (Ori).",
"163. Debi, (1952) 2 Raj 177 ; Lingayya, AIR 1958 AP 510 ; See also Ram Shankar, 1956 Cr LJ 822",
"(SC); Khagendra Gahan, 1982 Cr LJ 487 (Ori); Ram Lekhan, 1983 Cr LJ 691 (1) : 1983 All LJ 283 :",
"AIR 1983 SC 352 (1) : (1983) 2 SCC 65 : 1983 SCC (Cr) 339. Atar Singh v State of UP, 2003 Cr LJ",
"676 (All), the informant alleged that 3-4 persons entered into the house forcibly, the offence",
could not amount to dacoity.,
"164. Ghamandi v State, 1970 Cr LJ 386 ; See also Saktu v State, 1973 Cr LJ 599 : AIR 1973 SC",
760 . Conviction for dacoity requires proper identification of the persons involved. Ram Ishwar,
"Paswan v State of Bihar, 1989 Cr LJ 1042 (Pat), acquittal because no identification. State of HP v",
"Jagar Singh, 1989 Cr LJ 1213 , conviction for highway dacoity.",
"165. Lachman Ram v State of Orissa, AIR 1985 SC 486 [LNIND 1985 SC 77] : 1985 Cr LJ 753 :",
1985 SCC (Cr) 263. Failure in filing the list of articles supposed to have been taken away or in,
"indicating their nature makes the complaint liable to be dismissed. Suresh v State of UP, 1990",
Supp SCC 138 : 1990 SCC (Cr) 643. Revision against acquittal not allowed in a case where the,
"trial court considered every piece of evidence and gave cogent reasons, Mohamed Nagoor",
"Meeran v State of TN, (1995) 1 Cr LJ 857 (Mad). Joseph v State of Kerala, AIR 2000 SC 1608",
"[LNIND 2000 SC 746] : (1998) 4 SCC 387 [LNIND 1998 SC 328] , conviction of accused for",
"murder and for robbing the victim of her jewelry, good proof. George v State of Kerala, (2002) 4",
"SCC 475 [LNIND 2002 SC 256] , robbery, rings and wristwatch recovered from the accused,",
"presumption under section 114A, conviction. Sanjay v State (NCT) of Delhi, 2001 Cr LJ 1231",
"(SC), robbery with murder, proved against accused, conviction. Ronny v State of Maharashtra,",
1998 Cr LJ 1638 : AIR 1998 SC 1251 [LNIND 1998 SC 302] robbery with triple murder.,
Conviction.,
THE INDIAN PENAL CODE,
CHAPTER XVII OF OFFENCES AGAINST PROPERTY,
Of Theft,
Of Robbery and Dacoity,
[s 392] Punishment for robbery.,
Whoever commits robbery shall be punished with rigorous imprisonment for a term,
"which may extend to ten years, and shall also be liable to fine; and, if the robbery be",
"committed on the highway between sunset and sunrise, the imprisonment may be",
extended to fourteen years.,
COMMENT—,
This section no doubt allows the Court discretion as regards the minimum punishment,
"to be awarded, but when the offence is attended with circumstances which would",
"make the attempt to commit it punishable with the minimum sentence of seven years,",
it would not be a proper exercise of discretion to award a lesser sentence when the,
offence has been accomplished.166. A person who has been convicted of robbery,
under this section need not be convicted of theft.167. Where the wholly of the robbed,
"property was not recovered from the persons accused, it was held that the proper",
section to convict was section 411.168.,
[s 392.1] Essential ingredients for punishment under Section 392.—,
Essential ingredients for punishment under section 392 are:,
(1) The accused committed theft;,
(2) he voluntarily caused or attempted to cause:,
"(i) death, hurt or wrongful restraint,",
"(ii) fear of instant death, hurt or wrongful restraint;",
(3) he did either act for the end:,
"(i) of committing theft,",
"(ii) while committing theft,",
(iii) in carrying away or in the attempt to carry away property obtained by,
theft.169.,
"Where section 397 also applies, (robbery accompanied by attempt to cause death or",
grievous hurt) the punishment has to be for a period not less than seven years. The,
Supreme Court has held that this minimum prescribed sentence cannot be by-passed,
by resorting to plea bargaining.170. Section 392 itself provides that when robbery is,
"committed on a highway and between sunset and sunrise, deterrent punishment is",
called for.171.,
[s 392.2] CASES.—,
"In a case of alleged dacoity and murder, seven accused persons were convicted under",
section 396 as looted property was recovered from their possession within a very short,
time after the offence. The evidence of an eye-witness showed that murder was,
committed only by the three of the accused persons of whom one was given benefit of,
doubt. It was held only the remaining two accused were liable to be punished under,
sections 392 and 302 and other only under section 411.172. Where the accused was,
alleged to have committed dacoity alongwith four other co-accused who were,
"acquitted, his conviction under section 395 was altered to one under section 392",
(robbery).173. When articles recovered from accused were identified to be articles of,
"theft by complainant, the fact that watch recovered was not mentioned in FIR is not",
sufficient to reject testimony of complainant. No explanation was offered by accused,
as to how they came into possession of articles recovered. The Supreme Court held,
that Recoveries proved sufficient to connect accused with crime.174.,
[s 392.3] Bank Robbery.—,
The identity of the accused was proved by fingerprint impressions available at the door,
of the bank. The photographs of the fingerprints were to be proved by examining the,
"photographer. However, this lapse in the prosecution cannot result in acquittal of the",
appellants. The evidence adduced by the prosecution must be scrutinized,
independently of such lapses either in the investigation or by the prosecution or,
otherwise. The result of the criminal trial would depend upon the level of investigation,
or the conduct of the prosecution. Criminal trials should not be made casualty for such,
lapses in the investigation or prosecution.175.,
[s 392.4] Sentence.—,
"The offence was committed in a cool, calculated and gruesome manner. The accused",
"could have easily committed the robbery without taking away the life of the victim, if",
"robbery had been the motive. Keeping in mind the macabre nature of the crime, the",
High Court of Madras ordered that the sentences imposed on the accused should run,
consecutively and not concurrently.176.,
"166. Chandra Nath, (1931) 7 Luck 543 . See also Suryamoorthi v Govindaswamy, AIR 1989 SC",
"1410 [LNIND 1989 SC 232] : 1989 Cr LJ 1451 : (1989) 3 SCC 24 [LNIND 1989 SC 232] , a",
"conviction under the section for robbery; Laxmi Raj Shetty v State of TN, AIR 1988 SC 1274",
[LNIND 1988 SC 260] : 1988 Cr LJ 1783 : (1988) 3 SCC 319 [LNIND 1988 SC 260] where the,
death sentence was reduced to life imprisonment for offence of robbery with murder. More fully,
"discussed under section 302. Hardayal Prem v State of Rajasthan, AIR 1991 SC 269 : 1991 Cr LJ",
"345 , charges against two under sections 302, 304 and 392 for murder and robbery. Both",
convicted of robbery and murder under sections 302/ 392. One did not appeal and the other,
having appealed by special leave earned his acquittal. His companion was also given the same,
"right of acquittal; Chandran v State of Kerala, AIR 1990 SC 2148 : 1990 Cr LJ 2296 , setting aside",
"of conviction for robbery because of irregularities. Din Dayal v State (Delhi Admn.), AIR 1991 SC",
"44 , accused, a higher secondary boy of 14 years old, snatching wrist watch with others,",
sentence of 2½ years reduced to 8 months already spent in custody.,
"167. State of Kerala v Suku, 1989 Cr LJ 2401 (Ker).",
"168. Shankar v State, 1989 Cr LJ 1066 (Del). It has also been held that an accused should not",
"be convicted both under sections 392 and 394, Philip Bhimsen v State of Maharashtra, (1995) 2",
Cr LJ 1694 (Bom).,
"169. Venu v State of Karnataka, (2008) 3 SCC 94 [LNIND 2008 SC 208] : (2008) 1 SCC (Cr) 623 :",
AIR 2008 SC 1199 [LNIND 2008 SC 208] : 2008 Cr LJ 1634 .,
"170. Kripal Singh v State of Haryana, 1999 Cr LJ 5031 : (1999) 5 SCC 649 ; R v Williams, (2001)",
"Cr App R (S) 2 [CA (Crim Div)], maximum penalty imposed upon the accused who used and",
threatened violence to force the attendant to give him a whisky bottle from the vend out of,
vending hours.,
"171. Venu v State of Karnataka, (2008) 3 SCC 94 [LNIND 2008 SC 208] : AIR 2008 SC 1199",
[LNIND 2008 SC 208] .,
"172. State of MP v Samaylal, 1994 Cr LJ 3407 (MP).",
"173. Madan Kandi v State of Orissa, 1996 Cr LJ 227 (Ori); Ram Rakha v State of Punjab, AIR 2000",
SC 3521 : 2000 Cr LJ 4038 the two convicts came to the house of the victim and took away his,
"licensed rifle and also Rs. 3000, and jewelry belonging to some other person. Conviction under",
"the section was upheld. Ganga Din v State of UP, 2001 Cr LJ 1762 (All), robbery, no proper",
"identification, acquittal. Ronny v State of Maharashtra, 1998 Cr LJ 1638 : AIR 1998 SC 1251",
"[LNIND 1998 SC 302] , in a case of triple murder and robbery, the accused persons was",
"recognised and articles recovered. Complete chain of circumstances, conviction not interfered",
"with. Ravi Magor v State, 1997 Cr LJ 2886 , robbery by entering home, tying up people,",
"recoveries, identification, conviction. Identification in court without test identification did not",
"render evidence of identification inadmissible. Kayyumkhan v State of Maharashtra, 1997 Cr LJ",
"3137 (Bom) robbery in train, victims identified robbers, conviction. Pravakar Behera v State of",
"Orisssa, 1997 Cr LJ 3291 (Ori), uncertainty as to number of persons involved. Conviction shifted",
from dacoity to robbery.,
"174. Akil @ Javed v State of Nct of Delhi, 2013 Cr LJ 571 : 2013 AIR(SCW) 59.",
"175. Ajay Kumar Singh v The Flag Officer Commanding-in-Chief, 2016 Cr LJ 4174 : AIR 2016 SC",
3528 [LNIND 2016 SC 301] : (2016) 2 SCC (LS) 547.,
"176. K Ramajayam v The Inspector of Police, 2016 Cr LJ 1542 (Mad) : 2016 (2) MLJ (Crl) 715 .",
THE INDIAN PENAL CODE,
CHAPTER XVII OF OFFENCES AGAINST PROPERTY,
Of Theft,
Of Robbery and Dacoity,
[s 393] Attempt to commit robbery.,
Whoever attempts to commit robbery shall be punished with rigorous imprisonment,
"for a term which may extend to seven years, and shall also be liable to fine.",
THE INDIAN PENAL CODE,
CHAPTER XVII OF OFFENCES AGAINST PROPERTY,
Of Theft,
Of Robbery and Dacoity,
[s 394] Voluntarily causing hurt in committing robbery.,
"If any person, in committing or in attempting to commit robbery, voluntarily causes",
"hurt, such person, and any other person jointly concerned in committing or attempting",
"to commit such robbery, shall be punished with 177.[imprisonment for life], or with",
"rigorous imprisonment for a term which may extend to ten years, and shall also be",
liable to fine.,
COMMENT—,
This section imposes severe punishment when hurt is caused in committing robbery.,
Section 397 similarly provides for the minimum sentence of imprisonment which must,
be inflicted when grievous hurt is caused.,
"Commenting on the section, the Supreme Court observed: section 394 prescribes",
punishment for voluntarily causing hurt in committing or attempting to commit robbery.,
The offence under section 394 is a more serious than one under section 392. Section,
394 postulates and contemplates the causing of harm during commission of robbery,
or in attempting to commit robbery when such causing of hurt is hardly necessary to,
facilitate the commission of robbery. Section 394 applies to cases where during the,
course of robbery voluntary hurt is caused. Section 394 classifies two distinct classes,
"of persons. Firstly, those who actually cause hurt and secondly, those who do not",
"actually cause hurt but are ""jointly concerned"" in the commission of the offence of",
"robbery. The second class of persons may not be concerned in the causing of hurt, but",
they become liable independently of the knowledge of its likelihood or a reasonable,
belief in its probability.178.,
"In a prosecution for robbery and murder, injuries were caused to the deceased in the",
process of removing earrings. The Court said that the fact that the booty was,
distributed among three accused and they had secreted the robbed articles. These,
things revealed the common intention to commit robbery. One of them picked up a,
stone piece and caused death of the victim. There was nothing to show that the,
accused even knew of any such possibility. Others could not be convicted of murder,
"and robbery with the help of presumption under section 114 Evidence Act, 1872. They",
were liable to be convicted only under sections 394/34.179.,
[s 394.1] Forceful removal of vehicle by finance company.—,
Forcible removal of vehicle from possession of purchaser by finance company on,
default of payment without recourse to proper remedy through civil Court or to,
"arbitration clause, contained in hypothecation agreement, would be covered under",
"section 394 of IPC, 1860.180. The practice of hiring recovery agents, who are",
"musclemen, is deprecated and needs to be discouraged. The Bank should resort to",
procedure recognized by law to take possession of vehicles in cases where the,
borrower may have committed default in payment of the instalments instead of taking,
resort to strong-arm tactics. The recovery of loans or seizure of vehicles could be done,
only through legal means. The banks cannot employ goondas to take possession by,
force.181.,
[s 394.2] Charge framed under sections 394 and 397.—,
There is nothing wrong in convicting the accused under section 394 read with section,
397.182. All ingredients of offence punishable under section 392 are covered in offence,
"under section 394.183. Section 397 of the IPC, 1860 prescribes enhanced punishment",
"for using a deadly weapon at the time of committing robbery. As an obvious corollary,",
section 397 had no application to the case where robbery was not actually completed.,
"Even so, measure of punishment had to be regulated by section 398 of the IPC, 1860",
that provides for minimum punishment of seven years imprisonment in a case of,
"attempt to commit robbery when armed with deadly weapon. In this view of the matter,",
the conviction of the appellants for the offence under section 394 read with section,
"397 of the IPC, 1860 deserves to be converted into one under section 394 read with",
"section 398 of the IPC, 1860.184.",
[s 394.3] Compounding.—,
"An offence punishable under section 394 IPC, 1860 is not compoundable with or",
without the permission of the Court concerned. But High Court can use its power under,
"section 482 Cr PC, 1973 for quashing the prosecution under the said provision in the",
light of the compromise that the parties have arrived at.185.,
"[s 394.4] Presumption under section 114(a) of Evidence Act, 1872.—",
"As per Section 114(a) of the Evidence Act, 1872, when the stolen property is recovered",
"from a person, soon after the commission of theft or dacoity, a presumption can be raised",
that either he has himself committed the offence of theft or he has received the stolen,
property.186.,
"177. Subs. by Act 26 of 1955, section 117 and Sch, for ""transportation for life"" (w.e.f. 1 January",
1956).,
"178. Aslam v State of Rajasthan, (2008) 9 SCC 227 [LNINDORD 2008 SC 127] : (2008) 3 SCC (Cr)",
764 : AIR 2009 SC 363 [LNIND 2008 SC 1918] .,
"179. Limbaji v State of Maharashtra, AIR 2002 SC 491 [LNIND 2001 SC 2859] ; Om Prakash v",
"State of Rajasthan, AIR 1998 SC 1220 [LNIND 1998 SC 87] , five accused persons robbed the",
complainant of his wrist watch and currency notes and ran away. Eye-witnesses chased them,
"and then went to police station. Investigation was also successful. Two accused were let off,",
"others acquitted. Rama Kant v State of UP, 2001 Cr LJ 2072 (All), complaint against police",
"personnel alleging robbery and extracting of money, the court lamented that those who were",
"supposed to protect people themselves resorted to crime, the complaint was not to be quashed.",
"State of UP v Tekchand, 2000 Cr LJ 3821 (All), snatching of a gun in a hotel cabin, conviction",
"under section 394, but it could not be known to one of the accused that the other was going to",
"kill. Sudesh v State of MP, 1999 Cr LJ 2602 (MP), evidence showed that murder and removal of",
"ornaments from the body of the victim were simultaneous acts, conviction under sections",
"302/394; Rajjo v State of UP, 1999 Cr LJ 2996 (All), death caused in robbery by a single knife",
"blow, conviction under section 304 II, the matter being 20 years old. Abu Barks v State of",
"Rajasthan, 1998 Cr LJ 154 (Raj), robbery and murder, the accused was seen going towards the",
"place with knife, not enough to connect him with the incident, acquittal. Shravan Dashrath",
"Datarange v State of Maharashtra, 1998 Cr LJ 1196 (Bom), not only the accused who caused",
"hurt, but also an associate would be equally liable for the mischief contemplated by the section.",
"See also Public Prosecutor v Yenta Arjuna, 1998 Cr LJ 179 (AP); Shravan Dashrath Datrange v",
"State of Maharashtra, 1998 Cr LJ 1196 (Bom); Ratanlal v State of Rajasthan, 1998 Cr LJ 1788",
"(Raj); Ashok Kumar v State of MP, 1998 Cr LJ 4103 (MP); State of MP v Mukund, 1997 Cr LJ 534",
"(MP), a housewife and her two minor children found throttled to death in their house, things",
recovered from robbers very soon thereafter on guidance provided by the husband. Both the,
intruders and murderers convicted.,
"180. V A George v Abraham Augustine, 2012 Cr LJ 3355 (Ker).",
"181. ICICI Bank Ltd v Prakash Kaur, 2007 (2) SCC 711 [LNIND 2007 SC 237] : JT 2007 (4) SC 39",
[LNIND 2007 SC 237] : 2007 (1) KLJ 846 : AIR 2007 SC 1349 [LNIND 2007 SC 237] ; The,
"Managing Director, Orix Auto Finance Indian Ltd v Shri Jagmander Singh, 2006 (1) Supreme 708 :",
2006 (2) SCC 598 [LNIND 2006 SC 89] ; Maruthi Finance Ltd v Vijayalaxmi reported in (2012) 1,
SCC 1 [LNIND 2011 SC 1153] : AIR 2012 SC 509 [LNIND 2011 SC 1153] -even in case of,
"mortgaged goods subject to Hire Purchase Agreements, the recovery process has to be in",
accordance with law and the recovery process referred to in the Agreements also contemplates,
such recovery to be effected in due process of law and not by use of force. Till such time as the,
"ownership is not transferred to the purchaser, the hirer normally continues to be the owner of",
"the goods, but that does not entitle him on the strength of the agreement to take back",
possession of the vehicle by use of force. The guidelines which had been laid down by the,
"Reserve Bank of India as well as the appellant bank itself, in fact, support and make a virtue of",
such conduct. If any action is taken for recovery in violation of such guidelines or the principles,
"as laid down by this Court, such an action cannot but be struck down.",
"182. Narottam Das v State, 2013 Cr LJ 2676 (Chh).",
"183. Rahamat Khan alias Badal Khan v State of W B, 2008 Cr LJ 3285 (Cal).",
"184. Ganesh Singh v State of MP, relied on Phool Kumar v Delhi Admn, 1975 (1) SCC 797 [LNIND",
1975 SC 112] .,
"185. Shiji @ Pappu v Radhika, 2012 Cr LJ 840 (SC) : (2011) 10 SCC 705 [LNIND 2011 SC 1158] :",
AIR 2012 SC 499 [LNIND 2011 SC 1158] .,
"186. Satish Raju Waman Koli v State of Maharashtra, 2010 Cr LJ 4247 (Bom).",
THE INDIAN PENAL CODE,
CHAPTER XVII OF OFFENCES AGAINST PROPERTY,
Of Theft,
Of Robbery and Dacoity,
[s 395] Punishment for dacoity.,
"Whoever commits dacoity shall be punished with 187.[imprisonment for life], or with",
"rigorous imprisonment for a term which may extend to ten years, and shall also be",
liable to fine.,
COMMENT—,
"188..—When a person is involved in an offence of theft of higher magnitude, then it",
becomes dacoity and when dacoity is committed with murder and also results in,
"causing grievous hurt to others, it becomes robbery punishable under sections 395,",
"section 396 and section 397 of IPC, 1860. In other words, when the offence of theft is",
"committed conjointly by five or more persons, it becomes dacoity and such dacoity by",
those persons also results in commission of murder as well as causing of grievous,
"hurt to the victims, it results in an offence of robbery. A reading of section 395, section",
"396 and section 397 of IPC, 1860 makes the position clear that by virtue of the conjoint",
"effort of the accused while indulging in the said offence, makes every one of them",
"deemed to have committed the offence of dacoity and robbery. In the result, when such",
"offences of dacoity and robbery are committed, the same result in the death of a",
person or hurt or wrongful restrain or creating fear of instant death or instant hurt or,
"instant wrongful restraint. In substance, in order to find a person guilty of offences",
"committed under sections 395, 396 and 397 of IPC, 1860, his participation along with a",
group of five or more persons indulging in robbery and in that process commits murder,
and also attempts to cause death or grievous hurt with deadly weapons would be,
sufficient. Use of a knife in the course of commission of such a crime has always been,
held to be use of a deadly weapon. Keeping the above basic prescription of the offence,
"described in the above provisions in mind, we examined the case on hand. In the first",
"instance, what is to be examined is whether the basic ingredient of the offence falling",
"under section 395, section 396 and section 397 of IPC, 1860, namely, participation of",
five or more persons was made out.189.,
[s 395.1] Cases.—,
"In T Alias Sankaranarayanan v State Rep. By Inspector of Police,190. allegation was that",
accused along with others entered the premises of complainant in false pretext of,
conducting income tax raid and looted jewels and cash. Accused acquitted since there,
was no TIP and accused was identified for first time in Court after seven years of,
occurrence.,
[s 395.2] Sentence.—,
"Dacoity is a daredevil act. Most of the time, a serious crime like dacoity is committed",
by unknown persons and it is very difficult to trace them and still difficult to secure their,
"conviction. As a matter of fact, looking to the nature of crime and the manner in which",
"the appellants looted temple properties, graver punishment was warranted. In any case,",
sentence of five years rigorous imprisonment awarded by the trial Court and confirmed,
"in appeal by the High Court for the offence under section 395 IPC, 1860 calls for no",
interference.191.,
Considering that the value of the alleged loot including cash and mobile was only Rs.,
"16,550 and the young age of the accused, the trial Court sentenced him to rigorous",
imprisonment of only one year along with a fine of Rs. 100. The High Court allowed the,
appeal to the extent of enhancing the sentence to five years of rigorous imprisonment,
along with the fine imposed by the trial Court. Considering the same reasons as,
recorded by the trial Court the Supreme Court reduced the sentence of imprisonment to,
"the extent already undergone, i.e., three years and two months.192.",
"187. Subs. by Act 26 of 1955, section 117 and Sch, for ""transportation for life"" (w.e.f. 1 January",
1956).,
"188. Krishna Gopal Singh v State of UP, AIR 2000 SC 3616 , finding that the accused person",
committed robbery is a sine qua non for sustaining a conviction under section 395. Kapoorchand,
"Chaudhary v State of Bihar, 2002 Cr LJ 1424 (Pat), no leniency in terms of punishment was",
shown to dacoits who had robbed innocent bus passengers of their belongings irrespective of,
the fact that the accused persons had been facing the rigour of the trial for 14 years. Praful,
"Kumar Patel v State of Orissa, 2000 Cr LJ 2724 (Ori) entry into house with court orders to seize",
"articles attached, complaint quashed. Gandikota Narasaiah v Superintendent, 1999 Cr LJ 3947",
"(AP), conviction in three cases of dacoity, direction should not be given that the sentence in all",
the three cases should run concurrently. Such direction may operate as a licence to professional,
"dacoity. Subedar Yadav v State of UP, 1999 Cr LJ 4663 (All), punishment for dacoity in five",
"houses in the night of the incident, identified by 4 witnesses in lantern light. Devendran v State of",
"TN, 1998 Cr LJ 814 : AIR 1998 SC 2821 [LNIND 1997 SC 1368] , entered house, killed two old",
"ladies and car driver, and looted jewelry, etc., offence against accused persons proved beyond",
"doubt. Conviction under sections 302, 326. Shahul Hameed v State of TN, 1998 Cr LJ 885 (Mad),",
"doubtful evidence, acquittal. Badloo v State of UP, 1998 Cr LJ 1072 (All), concocted evidence, no",
"conviction, not even for a lesser offence. Rajvee v State of UP, 1998 Cr LJ 1588 (All), conviction",
"on sale basis of identification evidence not proper. SK Jamir v State of Orissa, 1998 Cr LJ 1728",
"(Ori), dacoity by entering into house, good evidence, conviction. Another similar conviction,",
"Satish v State of UP, 1998 Cr LJ 3352 (All); Subhaya Perumal Pilley v State of Maharashtra, 1997",
"Cr LJ 922 (Bom), more than five were involved, force was used, threatening words were spoken,",
"and gold was taken away, essentials of section 395, proved. No hurt or injury caused. 10 years",
"imprisonment was reduced to 7 years. Araf Mulla v State of Orissa, 1997 Cr LJ 4213 (Ori),",
"dacoity at petrol pump, no proper proof. Abdul Gafur v State of Assam, (2007) 12 SCC 627",
"[LNIND 2007 SC 1422] : AIR 2008 SC 607 [LNIND 2007 SC 1422] : 2008 Cr LJ 800 , acquittal,",
"infirmities in the prosecution in the background of admitted animosity between the parties, the",
prosecution version was unacceptable.,
"189. Deepak @ Wireless v State of Maharashtra, 2012 Cr LJ 4643 : (2012) 8 SCC 785 [LNIND",
2012 SC 558] .,
"190. T Alias Sankaranarayanan v State Rep. By Inspector of Police, 2011 Cr LJ 4006 (Mad).",
"191. Ram Babu v State of UP, AIR 2010 SC 2143 [LNIND 2010 SC 365] : (2010) 5 SCC 63 [LNIND",
"2010 SC 365] ; Arjun Mahto v State of Bihar, AIR 2008 SC 3270 [LNIND 2008 SC 1627] : (2008) 15",
SCC 604 [LNIND 2008 SC 1627] - the passage of time cannot wash away gravity of offence.,
"192. Pareshbhai Annabhai Sonvane v State of Gujarat, 2016 Cr LJ 2076 : 2016 (3) Scale 349",
[LNINDU 2016 SC 73] .,
THE INDIAN PENAL CODE,
CHAPTER XVII OF OFFENCES AGAINST PROPERTY,
Of Theft,
Of Robbery and Dacoity,
[s 396] Dacoity with murder.,
"If any one of five or more persons, who are conjointly committing dacoity, commits",
"murder in so committing dacoity, every one of those persons shall be punished with",
"death, or 193.[imprisonment for life], or rigorous imprisonment for a term which may",
"extend to ten years, and shall also be liable to fine.",
COMMENT—,
Under this section extreme penalty of death may be inflicted on a person convicted of,
"taking part in a dacoity in the course of which a murder is committed, even though",
there is nothing to show that he himself committed the murder or that he abetted it.,
The section declares the liability of other persons as co-extensive with the one who has,
"actually committed murder. Where in the course of a dacoity one man was shot dead,",
and the accused person who was tried had a gun and others of the dacoits also had,
"guns, and there was no evidence that the accused was the man who fired the fatal",
"shot, the sentence was altered from one of death to one of transportation for life.194.",
[s 396.1] Ingredients.—,
The offence under this section requires two things:—,
(1) The dacoity must be the joint act of the persons concerned.,
(2) Murder must have been committed in the course of the commission of the,
dacoity.195.,
"Section 391 IPC, 1860 explains the offence of 'dacoity'. When five or more persons",
"conjointly commit or attempt to commit a robbery, or where the whole number of",
"persons conjointly committing or attempting to commit a robbery, and persons present",
"and aiding such commission and attempt amount to five or more, every person so",
"committing, attempting or aiding, is said to commit 'dacoity'. Under section 392 IPC,",
"1860, the offence of 'robbery' simpliciter is punishable with rigorous imprisonment",
which may extend to ten years or 14 years depending upon the facts of a given case.,
"Section 396 IPC, 1860 brings within its ambit a murder committed along with 'dacoity'.",
"In terms of this provision, if any one of the five or more persons, who are conjointly",
"committing dacoity, commits murder in so committing dacoity, every one of those",
persons shall be punished with death or imprisonment for life or rigorous,
imprisonment for a term which may extend to ten years and shall also be liable to,
"fine.196. In the first instance, what is to be examined is whether the basic ingredient of",
"the offence falling under sections 395, 396 and 397 of IPC, 1860, namely, participation",
"of five or more persons was made out.197. On a plain reading of these provisions, it is",
"clear that to constitute an offence of 'dacoity', robbery essentially should be committed",
"by five or more persons. Similarly, to constitute an offence of 'dacoity with murder' any",
"one of the five or more persons should commit a murder while committing the dacoity,",
"then every one of such persons so committing, attempting to commit or aiding, by",
"fiction of law, would be deemed to have committed the offence of murder and be liable",
for punishment provided under these provisions depending upon the facts and,
circumstances of the case.198.,
"For recording conviction for dacoity, there must be five or more persons. In the absence",
"of such finding, an accused cannot be convicted for dacoity. In a given case, however, it",
may happen that there may be five or more persons and the factum of five or more,
"persons is either not disputed or is clearly established, but the Court may not be able to",
record a finding as to identity of all the persons said to have committed the dacoity and,
may not be able to convict them and order their acquittal observing that their identity is,
"not established. In such case, conviction of less than five persons—or even one—can",
"stand. But in the absence of such finding, less than five persons cannot be convicted",
"for dacoity. A similar situation arises in dealing with cases of ""unlawful assembly"" as",
"defined in section 141 IPC, 1860 and liability of every member of such unlawful",
assembly for an offence committed in prosecution of common object under section,
"149 IPC, 1860. In this case there were six accused. Out of those six accused, two were",
acquitted by the trial Court without recording a finding that though offence of dacoity,
"was committed by six persons, identity of two accused could not be established. They",
"were simply acquitted by the Court. Therefore, as per settled law, four persons could",
"not be convicted for dacoity, being less than five which is an essential ingredient for",
"commission of dacoity. Moreover, all of them were acquitted for an offence of criminal",
"conspiracy punishable under section 120-B IPC, 1860 as also for receiving stolen",
"property in the commission of dacoity punishable under section 412 IPC, 1860. The",
conviction of the appellant in this case for an offence punishable under section 396,
"IPC, 1860, therefore, could not stand and must be set aside.199.",
[s 396.2] Presence of all not necessary.—,
"The section says that if ""any one of five or more persons, who are conjointly",
"committing dacoity, commits murder in so committing dacoity"" then every one of those",
persons shall be liable to the penalty prescribed in the section. It is not necessary that,
murder should be committed in the presence of all. When in the commission of a,
"dacoity a murder is committed, it matters not whether the particular dacoit was inside",
"the house where the dacoity is committed, or outside the house, or whether the murder",
"was committed inside or outside the house, so long only as the murder was committed",
in the commission of that dacoity.200. The essence of an offence under this section is,
murder committed in commission of dacoity. It does not matter whether murder is,
committed in the immediate presence of a particular person or persons. It is not even,
necessary that murder should have been within the previous contemplation of the,
perpetrators of the crime.201. But in a case the dacoits were forced to retreat without,
"collecting any booty, the offence of dacoity would be completed as soon as they left",
the house of occurrence and took to their heels. And if a murder was committed by any,
"one of the dacoits in course of such a retreat without any booty, then only the actual",
"murderer will be liable under section 302, IPC, 1860, and conjoint responsibility under",
"section 396, IPC, 1860, could not be fixed on others though all of them could be",
"convicted under section 395, IPC, 1860 as attempt to commit dacoity is also",
dacoity.202.,
[s 396.3] Number of Persons.—,
Conviction for an offence of dacoity of less than five persons is not sustainable.203. For,
"recording conviction, there must be five or more persons. In absence of such finding,",
"an accused cannot be convicted for an offence of dacoity. In a given case, however, it",
may happen that there may be five or more persons and the factum of five or more,
"persons is either not disputed or is clearly established, but the Court may not be able to",
record a finding as to identity of all the persons said to have committed dacoity and,
may not be able to convict them and order their acquittal observing that their identity is,
"not established. In such case, conviction of less than five persons — or even one can",
"stand. But in absence of such finding, less than five persons cannot be convicted for an",
offence of dacoity.204.,
[s 396.4] Presumption from recent possession.—,
"Simply on the recovery of stolen articles, no inference can be drawn that a person in",
possession of the stolen articles is guilty of the offence of murder and robbery.205. The,
nature of the presumption under Illustration (a) of section 114 of the Indian Evidence,
"Act, 1872 must depend upon the nature of evidence adduced. No fixed time-limit can",
be laid down to determine whether possession is recent or otherwise. Each case must,
be judged on its own facts. The question as to what amounts to recent possession,
"sufficient to justify the presumption of guilt varies according ""as the stolen article is or",
"is not calculated to pass readily from hand to hand"". If the stolen articles were such as",
"were not likely to pass readily from hand to hand, the period of one year that elapsed",
could not be said to be too long particularly when the appellant had been absconding,
during that period.206.,
[s 396.5] Section 396 and Section 302.—,
"The ingredients of both these offences, to some extent, are also different in as much as",
"to complete an offence of 'dacoity' under section 396 IPC, 1860, five or more persons",
"must conjointly commit the robbery while under section 302 of the IPC, 1860 even one",
"person by himself can commit the offence of murder. But, as already noticed, to attract",
"the provisions of section 396, the offence of 'dacoity' must be coupled with murder. In",
"other words, the ingredients of section 302 become an integral part of the offences",
"punishable under section 396 of the IPC, 1860. Resultantly, the distinction with regard",
to the number of persons involved in the commission of the crime loses its,
significance as it is possible that the offence of 'dacoity' may not be proved but still the,
"offence of murder could be established, like in the present case. Upon reasonable",
"analysis of the language of these provisions, it is clear that the Court has to keep in",
mind the ingredients which shall constitute a criminal offence within the meaning of,
the penal section. This is not only essential in the case of the offence charged with but,
even where there is comparative study of different penal provisions as the accused,
may have committed more than one offence or even offences of a graver nature. He,
"may finally be punished for a lesser offence or vice versa, if the law so permits and the",
requisite ingredients are satisfied.207. On the conjoint reading of sections 396 and 302,
"IPC, 1860, it is clear that the offence of murder has been lifted and incorporated in the",
"provisions of section 396 IPC, 1860. In other words, the offence of murder punishable",
under section 302 and as defined under section 300 will have to be read into the,
"provisions of offences stated under section 396 IPC, 1860. In other words, where a",
"provision is physically lifted and made part of another provision, it shall fall within the",
ambit and scope of principle akin to 'legislation by incorporation' which normally is,
applied between an existing statute and a newly enacted law. The expression 'murder',
appearing in section 396 would have to take necessarily in its ambit and scope the,
"ingredients of section 300 of the IPC, 1860. The provisions are clear and admit no",
scope for application of any other principle of interpretation except the 'golden rule of,
"construction', i.e., to read the statutory language grammatically and terminologically in",
the ordinary and primary sense which it appears in its context without omission or,
"addition. These provisions read collectively, put the matter beyond ambiguity that the",
"offence of murder, is by specific language, included in the offences under section 396.",
"It will have the same connotation, meaning and ingredients as are contemplated under",
"the provisions of section 302 IPC, 1860.208.",
[s 396.6] Charge under section 396.—Conviction under section 302.—,
No prejudice has been caused to the appellant by his conviction for an offence under,
"section 302 IPC, 1860 though he was initially charged with an offence punishable under",
"section 396 IPC, 1860 read with section 201 IPC, 1860. The circumstances which",
"constitute an offence under section 302 were literally put to him, as section 302 IPC,",
"1860 itself is an integral part of an offence punishable under section 396 IPC, 1860.",
"Once the appellant has not suffered any prejudice, much less a serious prejudice, then",
"the conviction of the appellant under section 302 IPC, 1860 cannot be set aside merely",
for want of framing of a specific/ alternate charge for an offence punishable under,
"section 302 IPC, 1860. It is more so because the dimensions and facets of an offence",
under section 302 are incorporated by specific language and are inbuilt in the offence,
"punishable under section 396 IPC, 1860. Thus, on the application of principle of",
"'cognate offences', there is no prejudice caused to the rights of the appellant.209.",
[s 396.7] Rarest of the rare.—,
Five members of a family including two minor children and the driver were ruthlessly,
"killed by the use of a knife, an axe and an iron rod with the help of four other. The crime",
was obviously committed after pre-meditation with absolutely no consideration for,
"human lives and for money. Even though the appellant was young, his criminal",
propensities are beyond reform and he is a menace to the society. death sentence was,
"held to be the appropriate punishment.210. In a dacoity with double murder, the",
accused had gained confidence of the lady of the house and other inmates and visited,
them frequently. They committed dacoity after killing the lady and her grandson cold-,
bloodedly and attempted to kill two others. Their guilt was proved duly by,
circumstantial and direct evidence. The offences were found to be both heinous and,
barbaric and it was a 'rarest of rare case'.211.,
"193. Subs. by Act 26 of 1955, section 117 and Sch, for ""transportation for life"" (w.e.f. 1 January",
1956).,
"194. Lal Singh, (1938) All 875 . See also Nanhau Ram v State of MP, 1988 Cr LJ 936 : AIR 1988",
SC 912 : 1988 Supp SCC 152 . Where all the ingredients were established and the conviction,
"was sustained, Lalli v State of West Bengal, AIR 1986 SC 990 : 1986 Cr LJ 1083 : 1986 All LJ 768",
": (1986) 2 SCC 409 , pre-planned dacoity, cold- blooded murder, concealment of bodies, the",
"Supreme Court did not reduce life sentence and six-year R I Sheodan v State of UP, 1988 Cr LJ",
"479 (All), R I for five years to persons robbing and injuring bus passengers disrupting social life",
"of the area. State of UP v Hardeo, AIR 1992 SC 1854 : 1992 Cr LJ 3160 , evidence not reliable,",
acquittal.,
"195. To bring an offence under section 396, the prosecution has to establish that murder was",
"committed during dacoity. Hence, when prosecution alleges commission of murder during",
"dacoity, the offence traverses from section 395 to section 396. Any person committing the",
"offence of dacoity with murder cannot be convicted and sentenced under both the sections,",
"Rahimal v State of UP, 1992 Cr LJ 3819 (All).",
"196. Rafiq Ahmed @ Rafi v State of UP, AIR 2011 SC 3114 [LNIND 2011 SC 726] : (2011) 8 SCC",
300 [LNIND 2011 SC 726] .,
"197. Deepak @ Wireless v State of Maharashtra, 2012 Cr LJ 4643 : (2012) 8 SCC 785 [LNIND",
2012 SC 558] .,
"198. Rafiq Ahmed @ Rafi v State of UP, AIR 2011 SC 3114 [LNIND 2011 SC 726] : (2011) 8 SCC",
300 [LNIND 2011 SC 726] .,
"199. Raj Kumar v State of Uttaranchal, (2008) 11 SCC 709 [LNIND 2008 SC 849] : (2008) 3 SCC",
(Cr) 888 : (2008) 5 All LJ 637 : AIR 2008 SC 3248 [LNIND 2008 SC 849] .,
"200. Teja, (1895) 17 All 86 ; Umrao v State, (1894) 16 All 437 , dissented from; Chittu, (1900) PR",
"No. 4 of 1900. Sunil v State of Rajasthan, 2001 Cr LJ 3063 (Raj), it was not material that all the",
"five dacoits were not arrested. Miscreants entered the house of victim, caused one death,",
injured others and looted property. Crime against them proved. Conviction. Shobit Chamar v,
"State of Bihar, 1998 Cr LJ 2259 (SC) six members of family killed in the process of dacoity,",
"trustworthy eye-witnesses, conviction. Anthony De Souza v State of Karnataka, AIR 2003 SC 258",
"[LNIND 2002 SC 674] , all the five accused proved to have participated in murder, the trial of",
"juvenile delinquent was split, High Court converting conviction from under sections 396/149 to",
"that under sections 396/34, improper.",
"201. Samunder Singh, AIR 1965 Cal 598 [LNIND 1963 CAL 83] .",
"202. Shyam Behari, 1957 Cr LJ 416 (SC-Para 5) : AIR 1956 SC 320 . See Suryamurthy v",
"Govindaswamy, AIR 1989 SC 1410 [LNIND 1989 SC 232] : 1989 Cr LJ 1451 : (1989) 3 SCC 24",
"[LNIND 1989 SC 232] , where some of the accused were acquitted because evidence of their",
"identity was not dependable. Ajab v State of Maharashtra, 1989 Cr LJ 954 : AIR 1989 SC 827 :",
"1989 Supp (1) SCC 601 , appeal on the matter of sentence; Hari Nath v State of UP, 1988 Cr LJ",
"422 : (1988) 1 SCC 14 [LNIND 1987 SC 743] : AIR 1988 SC 345 [LNIND 1987 SC 743] , dacoity at",
"night, identification not dependable. Sheonath Bhar v State of UP, 1990 Cr LJ 2423 (All), no",
"conviction on the basis only of identification. Ramdeo Rai Yadav v State of Bihar, AIR 1990 SC",
1180 [LNIND 1990 SC 126] : 1990 Cr LJ 1183 the High Court finding that the appellant alone,
was guilty of the murder shifted the conviction to under section 302 with no prejudice to the,
"accused, upheld by the Supreme Court.",
"203. Ram Lakhan v State of UP, (1983) 2 SCC 65 .",
"204. Raj Kumar Alias Raju v State of Uttranchal, (2008) 11 SCC 709 [LNIND 2008 SC 849] ; Saktu",
"v State of UP, (1973) 1 SCC 202 distinguished.",
"205. Geejaganda Somaiah v State of Karnataka, AIR 2007 SC 1355 [LNIND 2007 SC 312] ; Gulab",
"Chand, AIR 1995 SC 1598 [LNIND 1995 SC 440] ; Tulsiram Kanu v State, AIR 1954 SC 1 : 1954 Cr",
"LJ 225 - the presumption permitted to be drawn under Section 114, Illustration (a) of the",
"Evidence Act, 1872 has to be drawn under the 'important time factor'. If the ornaments in",
"possession of the deceased are found in possession of a person soon after the murder, a",
"presumption of guilt may be permitted. But if a long period has expired in the interval, the",
presumption cannot be drawn having regard to the circumstances of the case.,
"206. Earabhadrappa v State of Karnataka, AIR 1983 SC 446 [LNIND 1983 SC 83] : 1983 Cr LJ 846",
.,
"207. Rafiq Ahmed @ Rafi v State of UP, AIR 2011 SC 3114 [LNIND 2011 SC 726] : (2011) 8 SCC",
"300 [LNIND 2011 SC 726] ; Iman Ali v State of Assam, AIR 1968 SC 1464 [LNIND 1968 SC 92] :",
1968 (3) SCR 610 [LNIND 1968 SC 92] .,
"208. Rafiq Ahmed @ Rafi v State of UP, AIR 2011 SC 3114 [LNIND 2011 SC 726] : (2011) 8 SCC",
300 [LNIND 2011 SC 726] .,
"209. Rafiq Ahmed @ Rafi v State of UP, AIR 2011 SC 3114 [LNIND 2011 SC 726] : (2011) 8 SCC",
"300 [LNIND 2011 SC 726] ; State of UP v Sukhpal Singh, (2009) 4 SCC 385 [LNIND 2009 SC 339] :",
"AIR 2009 SC 1729 [LNIND 2009 SC 339] - Accused persons entered premises, looted licensed",
gun and other articles and also killed two persons and injured others. Supreme Court held that,
charging accused under section 396 and instead of sub-section 302 is proper.,
"210. Sonu Sardar v State of Chhattisgarh, (2012) 4 SCC 97 [LNIND 2012 SC 909] : AIR 2012 SC",
1480 [LNIND 2012 SC 909] ; Ankush Maruti Shinde v State of Maharashtra [(2009) 6 SCC 667,
[LNIND 2009 SC 1056] : AIR 2009 SC 2609 [LNIND 2009 SC 1056] .,
"211. State of Karnataka v Rajan, 1994 Cr LJ 1042 (Kant).",
THE INDIAN PENAL CODE,
CHAPTER XVII OF OFFENCES AGAINST PROPERTY,
Of Theft,
Of Robbery and Dacoity,
"[s 397] Robbery or dacoity, with attempt to cause death or grievous hurt.",
"If, at the time of committing robbery or dacoity, the offender uses any deadly",
"weapon,1 or causes grievous hurt to any person, or attempts to cause death or",
"grievous hurt to any person, the imprisonment with which such offender shall be",
punished shall not be less than seven years.,
COMMENT—,
Sections 397 and 398 do not create any offence but merely regulate the punishment,
already provided for robbery and dacoity.212. This section fixes a minimum term of,
imprisonment when the commission of robbery and dacoity has been attended with,
"certain aggravating circumstances, viz., (1) the use of a deadly weapon, or (2) the",
"causing of grievous hurt, or (3) attempting to cause death or grievous hurt.",
Section 34 of the Code has no application in the construction of this section.213.,
[s 397.1] Accused must be armed with deadly weapon.—,
"It is necessary to prove that at the time of committing robbery, the accused was armed",
with a deadly weapon and not merely that one of the robbers who was with him at the,
time carried one.214. The liability to enhanced punishment is limited to the offender,
who actually uses the weapon himself and causes grievous hurt and not to others who,
in combination with such person have committed robbery or dacoity.215. The,
expression 'the offender' occurring in this section pertains to actual offender. It does,
not include all persons who participate in robbery or dacoity.216. The section does not,
provide for constructive liability as in section 149.217.,
1. 'Uses any deadly weapon'.—These words are wide enough to include a case in which,
a person levels his revolver against another person in order to overawe him. It is not,
correct to say that a person does not use a revolver unless he fires it.218. Where the,
"accused carried knife open to the view of the victims, it is sufficient use of a deadly",
weapon to terrorise them within the meaning of this section and no other overt act as,
brandishing of the knife is necessary to apply this section.219. In reference to the word,
"""uses"" as it occurs in the section, it has been held that if the weapon carried by the",
offender was within the vision of the victim so as to be capable of creating terror in his,
mind that is sufficient to satisfy the requirement of use of deadly weapon. It is not,
necessary to show further any hurt caused by the use of the weapon.220.,
The section postulates only the individual act of the accused to be relevant. It thus,
negates the application of the principle of constructive or vicarious liability as provided,
"in section 34. Where all the accused persons carried their respective deadly weapons, it",
was held that each one of them satisfy the requirement of section 397. Conviction,
could be only under section 397 and not section 397 read with section 34.221.,
[s 397.2] Comparison with section 394.—,
The section relates itself only to an offender who actually uses the weapon himself. It,
has no scope for constructive liability. The accused in this case had not himself caused,
any grievous hurt in the commission of the robbery. His conviction under this section,
read with section 34 was not proper.222. The liability under section 397 is only,
"individual, whereas liability under section 394 is both individual and vicarious.223.",
[s 397.3] Deadly weapon.—,
"In Babulal Jairam Maurya v State of Maharashtra,224. it was held that the word ""deadly",
"weapon"" as used here has to be a real deadly weapon and not just assumed or",
mistaken to be a deadly weapon. A toy-pistol cannot be said to be a deadly weapon,
"whatever be its impact on persons who were frightened with it. Bamboo sticks or lathis,",
"which were possessed and held by the accused, were held by the Supreme Court to be",
not deadly weapons. There was no evidence of any grievous hurt or attempt to inflict,
it.225.,
[s 397.4] Grievous hurt.—,
Any hurt which endangers life is a grievous hurt. It would be seen that one of the,
injuries was caused just below the nipple. The term 'endangers life' is much stronger,
"than the expression 'dangerous to life'. Apart from that in the provision, attempt to",
cause grievous hurt attracts its application.226.,
[s 397.5] Recovery of property.—,
"The Supreme Court observed in Lachhman Ram v State of Orissa:227. ""The factum of",
recovery of articles at the instance of the accused persons in the presence of police,
officers and panch witnesses is itself sufficient to bring the case not only under section,
"412 but also under section 391"".",
[s 397.6] Death sentence.—,
"In a robbery and double murder case, it was found that the acts of the accused persons",
were heinous and they had committed murder brutally and showed no regard for,
human lives. They were hardened criminals with previous criminal records. It was held,
that life imprisonment could not serve any reformative treatment to the accused. The,
sentence was enhanced to capital punishment.228.,
The accused was convicted for the offence of robbery and murder of five persons;,
murders were premeditated and carried out for gain. The entire family was,
exterminated in a cruel manner. The accused was a young person but not the,
breadwinner of anyone. The imposition of death sentence was confirmed.229.,
[s 397.7] Probation.—,
The Supreme Court had granted the benefit of probation to the appellant who was less,
than 21 years of age as on the date of the offence. The report of the Probation officer,
had been called and keeping in view the circumstances as had been detailed in the,
report of the Probation officer coupled with the fact that the appellant being less than,
"21 years of age on the date of offence, he had been granted benefit of probation.230.",
"212. Gaya Bhakta v State of Orissa, 1988 Cr LJ 1576 (Ori), the charge should, therefore be under",
"section 395 read with section 397. Kallu v State of MP, 1992 Cr LJ 238 (MP).",
"213. Ali Mirza, (1923) 51 Cal 265 ; Dulli, (1924) 47 All 59 .",
"214. Bhavjya v State, (1895) Unrep Cr C 797. Dhanai Mahto v State of Bihar, AIR 2000 SC 3602 ,",
bamboo sticks and lathis have been held to be not deadly weapons for the purposes of this,
"section. KV Chacko v State of Kerala, 2001 Cr LJ 713 : AIR 2001 SC 537 [LNIND 2000 SC 1797] ,",
"circumstance of dacoity with murder not proved. Hence, acquittal.",
"215. Deoji Keru, (1872) Unrep Cr C 65; Phool Kumar, 1975 Cr LJ 778 : AIR 1975 SC 905 [LNIND",
"1975 SC 112] : (1975) 1 SCC 797 [LNIND 1975 SC 112] ; Komali Viswasam, (1886) 1 Weir 450;",
"Nageshwar, (1906) 28 All 404 ; Ali Mirza, supra; Dulli, supra.",
"216. Willson v State of Maharashtra, 1995 Cr LJ 4042 (Bom).",
"217. Hazara Singh v State, (1946) 25 Pat 227.",
"218. Chandra Nath, (1931) 7 Luck 543 . Where the accused, while committing the robbery did",
not use the Deshi Katta recovered from his possession for threatening the victims nor caused,
"them any grievous injury, it was held that offence under section 397 was not made out against",
"him, Babu Lal v State of Rajasthan, 1994 Cr LJ 3531 (Raj). Where the accused was caught red-",
handed brandishing his knife and demanding money from a man and was convicted under,
"section 397. The sentence being minimum seven years R.I., it was not interfered with. Sanjay v",
"State of Maharashtra, 1996 Cr LJ 2172 (Bom).",
"219. Phool Kumar, 1975 Cr LJ 778 : AIR 1975 SC 905 [LNIND 1975 SC 112] ; Jai Prakash, 1981",
"Cr LJ 1340 (Del); Jang Singh, 1984 Cr LJ 1135 (Raj).",
220. (2004) 3 SCC 116 : AIR 2004 SC 1253 : 2004 Cr LJ 936 : (2004) 3 MPLJ 361 : (2004) 3 Mah,
LJ 581 .,
"221. Ashfaq v State Govt. of NCT of Delhi, (2004) 3 SCC 116 : AIR 2004 SC 1253 .",
"222. Paramjeet Singh v State of Rajasthan, 2001 Cr LJ 757 (Raj).",
"223. Shravan Deshrath v State of Maharashtra, 1998 Cr LJ 1196 (Bom).",
"224. Babulal Jairam Maurya v State of Maharashtra, 1993 Cr LJ 281 (Bom).",
"225. Dhanai Mahto v State of Bihar, 2001 Cr LJ 147 (SC), the court said that in such a case the",
maximum punishment provided by section 397 need not be imposed. Four years were held to be,
sufficient.,
"226. Niranjan Singh v State of M.P., AIR 2007 SC 2434 [LNIND 2007 SC 796] : (2007) 10 SCC 459",
[LNIND 2007 SC 796] .,
"227. Lachhman Ram v State of Orissa, AIR 1985 SC 486 [LNIND 1985 SC 77] : 1985 Cr LJ 753 :",
(1985) 2 SCC 533 [LNIND 1985 SC 77] . Mangal Tularam Warkhade v State of Maharashtra 2012,
"Cr LJ 510 (Bom) Recovery of cash as booty of dacoity, not proved. Accused acquitted",
"228. Prem v State of Maharashtra, 1993 Cr LJ 1608 (Del).",
"229. KV Chacko v State of Kerala, 2001 Cr LJ 1179 (Ker).",
"230. Masarullah v State of Tamil Nadu, 1983 SCC (Cr) 84 : (1983 Cr LJ 1043 ).",
THE INDIAN PENAL CODE,
CHAPTER XVII OF OFFENCES AGAINST PROPERTY,
Of Theft,
Of Robbery and Dacoity,
[s 398] Attempt to commit robbery or dacoity when armed with deadly weapon.,
"If, at the time of attempting to commit robbery or dacoity, the offender is armed with",
"any deadly weapon, the imprisonment with which such offender shall be punished",
shall not be less than seven years.,
COMMENT—,
This section can regulate the punishment only in cases of an attempt to commit,
robbery as distinguished from a case in which the offender has accomplished his,
purpose and robbery has actually been committed.231. It applies to such of the,
offenders as are armed with deadly weapons though they do not use them in the,
attempt to rob or commit dacoity. It does not apply to other offenders who in,
combination with such persons have committed robbery or dacoity.232. The words,
"""uses"" and ""is armed"" in sections 397 and 398, IPC, 1860, have to be given identical",
"meaning to resolve apparent anomaly.233. Thus, carrying a deadly weapon would be",
"enough to attract the mischief of either section. In the charge-sheet, accused were",
charged under section 396. Section 398 is referred only for the purpose of sentence.,
"Hence, the argument that when section 398 is attracted, life imprisonment cannot be",
"awarded is untenable. Substantive offence here is section 396. But, if section 398 is",
"attracted, minimum punishment shall be seven years. Sections 397 and 398 cannot be",
used conjunctively or constructively as held by the Apex Court in Paramjeet Singh v,
"State of Rajasthan.234. In fact, as held in various Court decisions, a person cannot be",
convicted under section 398 unless he is armed with a deadly weapon while,
committing or attempting to commit robbery or dacoity.235.,
"Section 398, IPC, 1860 gets attracted if at the time of attempting to commit robbery or",
"dacoity, the offender is armed with a deadly weapon which will attract an imprisonment",
"not less than seven years. When no robbery or dacoity has been committed as such, in",
the sense that no property was removed from the house of the complainants and,
"nothing said to be belonging to the complainants was recovered, it would be difficult to",
hold that there was any attempt in regard to the commission of robbery or dacoity.,
"Scattering of articles in the house may cause a scene as if ransacked, but that does not",
proved the charge.236. For the offence of attempt to commit robbery the maximum,
punishment prescribed by law is rigorous imprisonment for seven years with fine.,
However the discretion is left to the Court to quantify the actual sentence to be,
"awarded. However, if at the time of attempting to commit robbery the offender is",
"armed with any deadly weapon, the offence becomes more serious or aggravated and",
"therefore, section 398 provides that in such circumstances the imprisonment with",
"which, the offender shall be punishable, shall not be less than seven years. If at the",
time of committing robbery the offender is not armed with any deadly weapon the,
Court may award sentence of imprisonment for a term up to seven years and if he was,
armed with deadly weapon the sentence of imprisonment shall not be less than seven,
years. In such circumstances the maximum sentence of rigorous imprisonment of,
"seven years has to be awarded. It is well settled that section 398 IPC, 1860 does not",
create any offence but merely regulates the punishment already provided for robbery or,
dacoity. One cannot be convicted and sentenced separately under sections 393 and,
"398 of IPC, 1860.237.",
[s 398.1] Cases.—,
"The allegation was that appellants entered into the house of complainant, injured her in",
order to commit robbery but was apprehended by police. They demanded key of,
almirah and ornaments from complainant by overawing her with deadly weapons like,
knife and kattas. High Court held that conviction under section 394 read with section,
"397 deserves to be converted into one under section 394 read with s, 398 of IPC,",
1860.238.,
"[s 398.2] Charge under section 398 conviction under section 458 IPC, 1860.—",
"The accused was charged under section 398 of IPC, 1860 and section 25(1)(A) and",
"section 27 of the Arms Act, 1959. Trial Court acquitted the accused from both the",
"charges holding that prosecution has failed to prove the charges, however, come to the",
"conclusion that the accused committed an offence under section 458 of IPC, 1860. The",
High Court held that section 458 of Penal Code in no way was a cognate offence of,
"offence prescribed under section 398, IPC, 1860. Hence, Conviction for offence under",
"section 458 IPC, 1860 without framing charge was set aside.239.",
"231. Chandra Nath, (1931) 7 Luck 543 .",
"232. Ali Mirza, (1923) 51 Cal 265 ; Nabibux, (1927) 30 Bom LR 88 ; 52 Bom 168.",
"233. Phool Kumar, 1975 Cr LJ 778 : AIR 1975 SC 905 [LNIND 1975 SC 112] . Surender @ Babli v",
State AIR 2012 SC 1725 [LNINDORD 2011 SC 141] -High Court convicted the accused under,
"sections 393, 398 and 302/34 of IPC, 1860 on the ground that weapon which had been",
recovered at the instance of appellant proved his involvement in the incident. Supreme Court set,
aside the conviction,
"234. Paramjeet Singh v State of Rajasthan, 2001 Cr LJ 757 (SC)",
"235. Sharafu Alias Sharafudheen v State of Kerala, 2007 Cr LJ 2908 (Ker).",
"236. Chinnadurai v State of Tamil Nadu, AIR 1996 SC 546 : (1995) Supp3 SCC 686.",
"237. Shahaji Ramanna Nair v State of Maharashtra, 2007 Cr LJ 4653 (Bom).",
"238. Ganesh Singh v State of MP, 2009 Cr LJ 3691 (MP).",
"239. Manik Miah v State of Tripura, 2013 Cr LJ 1899 (Gau).",
THE INDIAN PENAL CODE,
CHAPTER XVII OF OFFENCES AGAINST PROPERTY,
Of Theft,
Of Robbery and Dacoity,
[s 399] Making preparation to commit dacoity.,
"Whoever makes, any preparation for committing dacoity, shall be punished with",
"rigorous imprisonment for a term which may extend to ten years, and shall also be",
liable to fine.,
COMMENT—,
This section makes preparation to commit dacoity punishable. 'Preparation' consists in,
devising or arranging means necessary for the commission of an offence.240.,
Under the Code preparation to commit an offence is punishable in three cases:—,
(1) Preparation to wage war against the Government of India (section 122).,
(2) Preparation to commit depredation on territories of a Power at peace with the,
Government of India (section 126).,
(3) Preparation to commit dacoity.,
"In a popular sense assembling to commit dacoity may be an act of preparation for it,",
"but a mere assembly, without further preparation, is not 'preparation' within the",
meaning of this section. Section 402 applies to mere assembling without proof of other,
"preparation. A person may not be guilty of dacoity, yet guilty of preparation, and not",
"guilty of preparation, yet guilty of assembling.241.",
[s 399.1] Distinction between sections 399 and 402.—,
"Though the offences falling under both the sections, more or less, involve similar",
"ingredients, the only difference between the two is that while under section 402 mere",
"assemblage without preparation is enough, section 399 require some additional steps",
by way of preparation. There can be cases where there may be an assembly for the,
purpose of dacoity without even a fringe of preparation. The mere fact that the,
appellants are acquitted of the charge under section 399 is no ground to knock off the,
"charge under section 402, IPC, 1860.242. In order to establish an offence punishable",
"under section 399, IPC, 1860 some act amounting to preparation must be proved and",
what must be proved further is an act for which preparation was being made was a,
"dacoity, that is to say, robbery to be committed by five or more persons. The",
"prosecution has to establish under section 402, IPC, 1860 that there had been an",
assembly of five or more persons constituted for the purpose of committing dacoity,
and that the accused persons were members of that assembly. If there is no clear and,
acceptable evidence of any assemblage of the appellants with three or more persons,
for the purpose of committing dacoity then the appellants cannot be held liable under,
"section 402, IPC, 1860.243.",
[s 399.2] Distinction between attempt and preparation.—,
"A culprit first intends to commit the offence, then makes preparation for committing it",
"and thereafter attempts to commit the offence. If the attempt succeeds, he has",
"committed the offence; if it fails due to reasons beyond his control, he is said to have",
attempted to commit the offence. Attempt to commit an offence can be said to begin,
when the preparations are complete and the culprit commences to do something with,
the intention of committing the offence and which is a step towards the commission of,
"the offence. The moment he commences to do an act with the necessary Intention, he",
"commences his attempt to commit the offence. The word ""attempt"" is not itself",
"defined, and must, therefore, be taken in its ordinary meaning. This is exactly what the",
provisions of section 511 require. An attempt to commit a crime is to be distinguished,
from an intention to commit it and from preparation made for its commission. Mere,
"intention to commit an offence, not followed by any act, cannot constitute an offence.",
The will is not be taken for the deed unless there be some external act which shows,
"that progress, has been made in the direction of it, or towards maturing and effecting it.",
Intention is the direction of conduct towards the object chosen upon considering the,
motives which suggest the choice. Preparation consists in devising or arranging the,
means or measures necessary for the commission of the offence. It differs widely from,
attempt which is the direct movement towards the commission after preparations are,
made. Preparation to commit an offence is punishable only when the preparation is to,
commit offences under section 122 (waging war against the Government of India) and,
"section 399 (preparation to commit dacoity). The dividing, line between a mere",
preparation and an attempt is sometimes thin and has to be decided on the facts of,
each case. There is a greater degree of determination in attempt as compared with,
preparation.244.,
[s 399.3] CASES.—,
"Where it is proved that the accused, who were residents of different villages had",
gathered with lethal arms at an unearthly hour in a desolate place under a tree with no,
"explanation for their conduct whatsoever much less an acceptable one, the Court",
found them guilty under sections 399 and 402.245.,
Where a number of persons were sitting in a Railway waiting hall at about 9.30 at night,
"and a country-made gun without any cartridge, a whistle and a torch of five cells were",
"recovered from their possession, it could not be said without any other evidence that",
they had made preparation to commit dacoity within the meaning of this section nor,
would it amount to an offence of assemblage for the purpose of committing dacoity,
under section 402.246. The mere fact that eight persons were found in a school at,
about 1 a.m. and some of them were armed does not make out a case either under,
"section 399 or under section 402, IPC, 1860, unless it is shown that they assembled",
there for the purpose of committing dacoity. In such a situation the possibility that they,
had so assembled there for murdering somebody or committing some other offence,
"cannot be ruled out.247. In this connection see also Comments under section 402, IPC,",
"1860, especially the case of Naushera therein.",
[s 399.4] Sentence.—,
The occurrence had taken place twenty nine years ago and the appellant has remained,
in custody for a period of more than six months. The Supreme Court while upholding,
"the conviction of the appellant, sentence of imprisonment awarded against him is",
reduced to the period already undergone by him.248.,
"240. Jain Lal, (1942) 21 Pat 667.",
"241. Ramesh Chandra Banerjee, (1913) 41 Cal 350 ; Madhusudan Sen Gupta, AIR 1958 Cal 25",
"[LNIND 1957 CAL 48] . Shiv Ram Singh v State of UP, 1999 Cr LJ 4103 (All), assembly in",
"preparation for dacoity on trucks and other motor vehicles, spot arrests, 2 years RI imposed.",
"Another case of the same kind Radharaman v State of UP, 1997 Cr LJ 4129 (All), arrest by police",
"party when the accused assembled for preparation for dacoity, independent public witnesses.",
"242. Naushera v State, 1982 Cr LJ 29 (P&H). Shravan Dashrath v State of Maharashtra, 1998 Cr",
"LJ 1196 (Bom), the same distinction stated.",
"243. Asgar v State of Rajastan, 2003 Cr LJ 1997 ; In Karam Dass v State, AIR 1952 Pun 249 :",
"1952 Cr LJ 1119 , the Punjab High Court held that to bring the case within section 399 of the",
"Code, it is not necessary that persons shown to be making the preparations should be five or",
"more in number. It is, however, necessary for the prosecution to prove that the raid for which the",
"persons prosecuted were making preparation was to be committed by five or more persons, for",
"otherwise it would not be dacoity but merely robbery, and mere preparation for committing",
"robbery, unless it ends in an actual attempt, is not punishable by law.",
"244. Koppula Venkat Rao v State of Andhra Pradesh, AIR 2004 SC 1874 [LNIND 2004 SC 301] :",
(2004) 3 SCC 602 [LNIND 2004 SC 301] .,
"245. Birbal B Chouhan v State of Chhattisgarh, AIR 2012 SC 911 [LNIND 2011 SC 1157] : (2011)",
10 SCC 776 [LNIND 2011 SC 1157] .,
"246. Brijlal Mandal, 1978 Cr LJ 877 (Pat); see also Gholtu Modi, 1986 Cr LJ 1031 (Pat). Suleman",
"v State of Delhi, AIR 1999 SC 1707 [LNIND 1999 SC 133] : 1999 Cr LJ 2525 , persons staying in",
"Dharamsala at noon, witness stated that he overheard them talking about their plan to loot a",
"petrol pump, it did not seem to be truthful to the court, their conviction under sections 399 and",
"402 was held to be not proper. Shiv Ram Singh v State of UP, 1999 Cr LJ 4103 (All), criminals",
"caught on spot alongwith articles, the sentence of two years RI being already on the lower side,",
"no scope for further reduction. Ram Sewak v State of UP, 1999 Cr LJ 4680 (All), failure to prove",
"that accused assembled in preparation for dacoity. Another similar case is Sukhlal v State of MP,",
1998 Cr LJ 1366 (MP).,
"247. Chaturi Yadav, 1979 Cr LJ 1090 : AIR 1990 SC 1412 [LNIND 1998 SC 579] .",
"248. Nasir v State of UP, AIR 2010 SC 1926 [LNIND 2009 SC 1517] : (2010) 13 SCC 251 [LNIND",
"2009 SC 1517] ; Ravi Rajwar v State of Bihar, 2003 Cr LJ 634 (Pat).",
THE INDIAN PENAL CODE,
CHAPTER XVII OF OFFENCES AGAINST PROPERTY,
Of Theft,
Of Robbery and Dacoity,
[s 400] Punishment for belonging to gang of dacoits.,
"Whoever, at any time after the passing of this Act, shall belong to a gang of persons",
"associated for the purpose of habitually committing dacoity, shall be punished with",
"249.[imprisonment for life], or with rigorous imprisonment for a term which may",
"extend to ten years, and shall also be liable to fine.",
COMMENT—,
This section provides for the punishment of those who belong to a gang of persons,
who make it their business to commit dacoity. Its object is to break up gangs of dacoits,
by punishing persons associated for the purpose of committing dacoity. The mere fact,
that women lived as wives or mistresses with men who were dacoits was held not,
sufficient to prove that they belonged to a gang of persons associated for the purpose,
"of habitually committing dacoity within the meaning of this section, unless it be proved",
that the women themselves were associated with the husbands or protectors for the,
purpose of themselves habitually committing dacoities.250.,
The expression 'belong' implies something more than casual association for the,
purpose of committing one or two dacoities by a person who was ordinarily living by,
honest means. It refers to those persons who habitually associate with a gang of,
dacoits and actively assist them in their operations. But if a person with a bad past,
record participates in the commission of dacoity even on one occasion in association,
"with a well-known gang of habitual dacoits knowing them to be such a gang, it may be",
reasonably inferred that he belongs to that gang unless there is some other material on,
record to justify an inference that the association was of a casual nature.251.,
The word 'gang' means any band or company of persons who go about together or act,
in concert. The essence of the word is that the persons should act in concert.252.,
Evidence that persons concerned were associated for the purpose of committing,
dacoities in a number of cases during a short period of time is good enough evidence,
to prove association within the meaning of this section even if such evidence was not,
"considered sufficient for conviction under section 395, IPC, 1860, in specific cases.253.",
"249. Subs. by Act 26 of 1955, section 117 and Sch, for ""transportation for life"" (w.e.f. 1 January",
1956).,
"250. Yella, (1896) Unrep Cr C 863.",
"251. Bhima Shaw, (1956) Cut 195; Bai Chaturi, AIR 1960 Guj 5 [LNIND 1989 GUJ 36] .",
"252. Sharaf Shah Khan, AIR 1963 AP 314 [LNIND 1961 AP 52] .",
"253. State of Assam v Hetep Boro, 1972 Cr LJ 1074 (Assam).",
THE INDIAN PENAL CODE,
CHAPTER XVII OF OFFENCES AGAINST PROPERTY,
Of Theft,
Of Robbery and Dacoity,
[s 401] Punishment for belonging to gang of thieves.,
"Whoever, at any time after the passing of this Act, shall belong to any wandering or",
other gang of persons associated for the purpose of habitually committing theft or,
"robbery, and not being a gang of thugs or dacoits, shall be punished with rigorous",
"imprisonment for a term which may extend to seven years, and shall also be liable to",
fine.,
COMMENT—,
The principle enunciated in the last section is extended by this section to a gang of,
thieves or robbers. It is not necessary to prove that each individual member of the gang,
has habitually committed theft or has committed any particular theft in company with,
the other members.254. Even so the word 'belonging' implies something more than,
mere casual association. It conveys the notion of continuity and more or less continued,
association of the accused with the gang extending over a considerable length of time,
which must be proved so as to warrant an inference that the accused identified himself,
with the gang the common purpose of which was the habitual commission of either,
theft or robbery.255.,
"254. Beja, (1913) PR No. 13 of 1914.",
"255. Re Akbar Ali, 1981 Cr LJ NOC 36 (Mad). Acquittal by lower courts under this section and",
"there being no charge at that time of receiving stolen property under section 410, the Supreme",
Court did not in an appeal under Article 136 of the Constitution convict under section 410.,
"Pandara Nadar v State of TN, AIR 1991 SC 391 : 1991 Cr LJ 468 . See the comments under",
section 399.,
THE INDIAN PENAL CODE,
CHAPTER XVII OF OFFENCES AGAINST PROPERTY,
Of Theft,
Of Robbery and Dacoity,
[s 402] Assembling for purpose of committing dacoity.,
"Whoever, at any time after the passing of this Act, shall be one of five or more persons",
"assembled for the purpose of committing dacoity, shall be punished with rigorous",
"imprisonment for a term which may extend to seven years, and shall also be liable to",
fine.,
COMMENT—,
An unlawful assembly of persons meeting for a common purpose to commit dacoity is,
subject to the severe punishment provided in this section even though no step is taken,
in the prosecution of the common object.256.,
"256. Bholu, (1900) 23 All 124 .",
THE INDIAN PENAL CODE,
CHAPTER XVII OF OFFENCES AGAINST PROPERTY,
Of Theft,
Of Criminal Misappropriation of Property,
[s 403] Dishonest misappropriation of property.,
Whoever dishonestly misappropriates or converts to his own use1 any movable,
"property, shall be punished with imprisonment of either description for a term which",
"may extend to two years, or with fine, or with both.",
ILLUSTRATIONS,
"(a) A takes property belonging to Z out of Z's possession, in good faith, believing, at",
"the time when he takes it, that the property belongs to himself. A is not guilty of",
"theft; but if A, after discovering his mistake, dishonestly appropriates the",
"property to his own use, he is guilty of an offence under this section.",
"(b) A, being on friendly terms with Z, goes into Z's library in Z's absence, and takes",
"away a book without Z's express consent. Here, if A was under the impression",
"that he had Z's implied consent to take the book for the purpose of reading it, A",
"has not committed theft. But, if A afterwards sells the book for his own benefit,",
he is guilty of an offence under this section.,
"(c) A and B, being joint owners of a horse, A takes the horse out of B's possession,",
"intending to use it. Here, as A has a right to use the horse, he does not",
"dishonestly misappropriate it. But, if A sells the horse and appropriates the",
"whole proceeds to his own use, he is guilty of an offence under this section.",
Explanation 1.—A dishonest misappropriation for a time only is a misappropriation,
within the meaning of this section.,
ILLUSTRATION,
"A finds a Government promissory note belonging to Z, bearing a blank endorsement. A,",
"knowing that the note belongs to Z, pledges it with a banker as a security for a loan,",
intending at a future time to restore it to Z. A has committed an offence under this,
section.,
Explanation 2.—A person who finds property not in the possession of any other,
"person, and takes such property for the purpose of protecting it for, or of restoring it",
"to, the owner does not take or misappropriate it dishonestly, and is not guilty of an",
"offence; but he is guilty of the offence above defined, if he appropriates it to his own",
"use, when he knows or has the means of discovering the owner, or before he has used",
reasonable means to discover and give notice to the owner and has kept the property,
a reasonable time to enable the owner to claim it.,
"What are reasonable means or what is a reasonable time in such a case, is a question",
of fact.,
"It is not necessary that the finder should know who is the owner of the property, or",
"that any particular person is the owner of it; it is sufficient if, at the time of",
"appropriating it, he does not believe it to be his own property, or in good faith believes",
that the real owner cannot be found.,
ILLUSTRATIONS,
"(a) A finds a rupee on the high road, not knowing to whom the rupee belongs. A",
picks up the rupee. Here A has not committed the offence defined in this,
section.,
"(b) A finds a letter on the road, containing a banknote. From the direction and",
contents of the letter he learns to whom the note belongs. He appropriates the,
note. He is guilty of an offence under this section.,
(c) A finds a cheque payable to bearer. He can form no conjecture as to the person,
"who has lost the cheque. But the name of the person, who has drawn the",
"cheque, appears. A knows that this person can direct him to the person in",
whose favour the cheque was drawn. A appropriates the cheque without,
attempting to discover the owner. He is guilty of an offence under this section.,
(d) A sees Z drop his purse with money in it. A picks up the purse with the intention,
"of restoring it to Z, but afterwards appropriates it to his own use. A has",
committed an offence under this section.,
"(e) A finds a purse with money, not knowing to whom it belongs; he afterwards",
"discovers that it belongs to Z, and appropriates it to his own use. A is guilty of",
an offence under this section.,
"(f) A finds a valuable ring, not knowing to whom it belongs. A sells it immediately",
without attempting to discover the owner. A is guilty of an offence under this,
section.,
COMMENT—,
Criminal misappropriation takes place when the possession has been innocently come,
"by, but where, by a subsequent change of intention, or from the knowledge of some",
"new fact with which the party was not previously acquainted, the retaining becomes",
wrongful and fraudulent.257. The offence consists in the dishonest misappropriation or,
"conversion, either permanently or for a time, of property which is already without wrong",
"in the possession of the offender.258. See illustrations (a), (b) and (c) which show that",
the original innocent taking amounts to criminal misappropriation by subsequent acts.,
Illustration (a) is qualified by ill. (b).259.,
[s 403.1] Ingredients.—,
This section requires—,
(1) Dishonest misappropriation or conversion of property for a person's own use.,
(2) Such property must be movable. Section 403 deals with the offence of dishonest,
"misappropriation of property. It provides that ""whoever dishonestly misappropriates or",
"converts to his own use any movable property"", shall be punished with imprisonment of",
either description for a term which may extend to two years or with fine or both. The,
basic requirement for attracting the section is: (i) the movable property in question,
should belong to a person other than the accused; (ii) the accused should wrongly,
appropriate or convert such property to his own use; and (iii) there should be dishonest,
intention on the part of the accused. Here again the basic requirement is that the,
subject matter of dishonest misappropriation or conversion should be someone else's,
"movable property. When NEPC India owns/possesses the aircraft, it obviously cannot",
"'misappropriate or convert to its own use' such aircraft or parts thereof. Therefore,",
section 403 is also not attracted.260. Section 403 uses the words 'dishonestly' and,
"'misappropriate'. These are necessary ingredients of an offence under section 403, IPC,",
1860.261.,
1. 'Dishonestly misappropriates or converts to his own use'.—There must be actual,
"conversion of the thing misappropriated to the accused's own use. Where, therefore,",
"the accused found a thing, and merely retained it in his possession, he was acquitted of",
this offence.262. Where the accused found a purse on the pavement of a temple in a,
"crowded gathering and put it in his pocket but was immediately after arrested, it was",
"held that he was not guilty of criminal misappropriation, for it could not be assumed",
that by the mere act of picking up the purse or putting it in his pocket he intended to,
appropriate its contents to his own use.263. Where a person took possession of a,
"bullock which had strayed, but there was no evidence that it was stolen property, and",
"he dishonestly retained it, he could be convicted under this section and not under",
"section 411.264. The accused purchased for one anna, from a child aged six years, two",
"pieces of cloth valued at 15 annas, which the child had taken from the house of a third",
person. It was held that assuming that a charge of dishonest reception of property,
(section 411) could not be sustained owing to the incapacity of the child to commit an,
"offence, the accused was guilty of criminal misappropriation, if he knew that the",
property belonged to the child's guardian and dishonestly appropriated it to his own,
use.265.,
[s 403.2] Theft and criminal misappropriation.—,
(1) In theft the offender dishonestly takes property which is in the possession of a,
person out of that person's possession; and the offence is complete as soon as the,
offender moves the property. Criminal misappropriation takes place even when the,
"possession has been innocently come by, but where, by a subsequent change of",
"intention or from the knowledge of some new fact, with which the party was not",
"previously acquainted, the retaining becomes wrongful and fraudulent.",
(2) The dishonest intention to appropriate the property of another is common to theft,
"and to criminal misappropriation. But this intention, which in theft is sufficiently",
"manifested by a moving of the property, must in criminal misappropriation be carried",
into action by an actual misappropriation or conversion.,
[s 403.3] Entrustment of cash.—,
"Where a certain amount of cash, which was entrusted to the cashier, was missing from",
"the bank and the money was neither found with the cashier nor at his home, the Court",
said that he could be held liable for negligence but not for breach of trust in the,
absence of proof for misappropriation by him.266.,
[s 403.4] Joint property.—,
"An owner of property, in whichever way he uses his property and with whatever",
"intention, will not be liable for misappropriation and that would be so even if he is not",
the exclusive owner thereof. A partner has undefined ownership along with the other,
partners over all the assets of the partnership. If he chooses to use any of them for his,
own purposes he may be accountable civilly to the other partners. But he does not,
thereby commit misappropriation.267.,
[s 403.5] Main contractor receiving payment but not paying to sub-contractor.,
—,
The principal or main contractor contracted with a sub-contractor for completion of the,
project. The sub-contractor filed a criminal complaint alleging that the main contractor,
had received payment under the project but was not paying him. The Supreme Court,
said that the money paid to the main contractor was not in the nature of money or,
"immovable property of the sub-contractor. Hence, there could be no misappropriation.",
It was a claim of civil nature.268.,
[s 403.6] Civil nature.—,
"When the dispute in question is purely of civil nature, Magistrate is justified in",
"dismissing the complaint under section 203 Cr PC, 1973.269. Merely because a civil",
"claim has been raised by the complainant regarding the breach of agreement, it cannot",
prevent him from initiating criminal proceedings.270.,
[s 403.7] Charge under section 406.—Conviction under section 403.—,
"Section 222(1) Cr PC, 1973 provides when a person is charged with an offence",
"consisting of several particulars, a combination of some only of which constitutes a",
"complete minor offence, and such combination is proved, but the remaining particulars",
"are not proved, he may be convicted of the minor offence, though he was not charged",
with it. Sub-section (2) of section 222 provides that when a person is charged with an,
"offence and facts are proved which reduced it to a minor offence, he may be convicted",
"of the minor offence, although he is not charged with it. Offence under section 403 is",
"certainly a minor offence in relation to the offence under section 406, IPC, 1860.271.",
[s 403.8] Offence partly committed outside India.—,
Indian Courts have jurisdiction against foreigners residing in foreign countries but their,
acts connected with transaction or part of transaction arising in India. Foreign,
"nationality, their residence outside India, and the fact that they were not present in India",
"when the offence(s) was/were allegedly committed, are of no consequence, in view of",
the aforesaid decision rendered by the Supreme Court in Mobarik Ali Ahmed272.,
case.273.,
"257. Bhagiram Dome v Abar Dome, (1988) 15 Cal 388 , 400; Pramode, (1965) 2 Cr LJ 562 .",
"258. Ramakrishna, (1888) 12 Mad 49, 50.",
"259. Mahadev Govind, (1930) 32 Bom LR 356 .",
260. Indian Oil Corporation. v NEPC India Ltd. AIR 2006 SC 2780 [LNIND 2006 SC 537] : (2006) 6,
"SCC 736 [LNIND 2006 SC 537] ; Ramaswamy Nadar v The State of Madras, AIR 1958 SC 56",
"[LNIND 1957 SC 102] : 1958 Cr LJ 228 ; Mohammed Ali v State of MP, 2006 Cr LJ 1368 (MP);",
"Diamond Cables Ltd v State of Andhra Pradesh, 2004 Cr LJ 4100 (AP).",
"261. Udhar v State, AIR 2003 SC 974 [LNIND 2003 SC 67] : (2003) 2 SCC 219 [LNIND 2003 SC",
67] - Neither of these ingredients are satisfied in the facts and circumstance of this case. It,
cannot be said that there is any dishonest intention on the part of appellants nor it can be said,
that TCPL or the appellants have misappropriated or converted the movable property of the,
"complainant to their own use. Since the basic ingredients of the relevant Section in the IPC,",
"1860 are not satisfied, the order taking cognizance of the offence as well as the issue of",
summons to the appellants is wholly uncalled for.,
"262. Abdool, (1868) 10 WR (Cr) 23A.",
"263. Phuman, (1907) PR No. 11 of 1908.",
"264. Phul Chand Dube, (1929) 52 All 200 .",
"265. Makhulshah v State, (1886) 1 Weir 470.",
"266. State of Maharashtra v Mohan Radhakrishna Pednekar, 1998 Cr LJ 3771 (Bom).",
"267. Velji Raghavji, (1964) 67 Bom LR 443 (SC). Mahal Chand Sikwal v State of WB, 1987 Cr LJ",
1569 (Cal).,
"268. U Dhar v State of Jharkhand, AIR 2003 SC 974 [LNIND 2003 SC 67] : 2003 Cr LJ 1224 .",
"269. Kaumudiben Harshadbhai Joshi v State of Gujarat, 2012 Cr LJ 4720 (Guj).",
"270. Lee Kun Hee v State of UP, (2012) 3 SCC 132 [LNIND 2012 SC 89] : AIR 2012 SC 1007",
[LNINDORD 2012 SC 443] : 2012 Cr LJ 1551 .,
"271. Kundanlal v State of Maharashtra, 2001 Cr LJ 2288 (Bom).",
"272. Mobarik Ali Ahmed, AIR 1957 SC 857 [LNIND 1957 SC 81] : 1957 Cr LJ 1346 .",
273. Lee Kun Hee v State of UP (2012) 3 SCC 132 [LNIND 2012 SC 89] : AIR 2012 SC 1007,
[LNINDORD 2012 SC 443] : 2012 Cr LJ 1551 .,
THE INDIAN PENAL CODE,
CHAPTER XVII OF OFFENCES AGAINST PROPERTY,
Of Theft,
Of Criminal Misappropriation of Property,
[s 404] Dishonest misappropriation of property possessed by deceased person,
at the time of his death.,
"Whoever dishonestly misappropriates or converts to his own use property, knowing",
that such property was in the possession of a deceased person at the time of that,
"person's decease, and has not since been in the possession of any person legally",
"entitled to such possession, shall be punished with imprisonment of either",
"description for a term which may extend to three years, and shall also be liable to fine;",
and if the offender at the time of such person's decease was employed by him as a,
"clerk or servant, the imprisonment may extend to seven years.",
ILLUSTRATION,
"Z dies in possession of furniture and money. His servant A, before the money comes",
"into the possession of any person entitled to such possession, dishonestly",
misappropriates it. A has committed the offence defined in this section.,
COMMENT—,
This section relates to a description of property peculiarly needing protection. The,
offence consists in the pillaging of movable property during the interval which elapses,
"between the time when the possessor of the property dies, and the time when it comes",
into the possession of some person or officer authorized to take charge of it.274. The,
very object of this provision was to protect the property which was in possession of,
deceased at the time of his death till the person(s) entitled to it step in.275.,
[s 404.1] CASES.—,
"The circumstances namely recovery of revolver of the deceased from accused, along",
"with live and spent cartridges, the recovery of mobile handset of Panasonic from the",
"custody of the accused, and the fact that the accused was using the same soon after",
the murder of the deceased with mobile phone which was registered in the name of the,
"accused (and that he continued to use it till his arrest), leaves no room for any doubt,",
that the prosecution has brought home the charges as have been found to be,
established against the accused.276. Where the accused misused the ATM card of the,
"deceased, it was held he had committed offence under this section.277.",
274. M & M 364.,
"275. Prabhat Bhatnagar v State, 2007 Cr LJ 4349 (Raj).",
"276. Gajraj v State (NCT) of Delhi, (2011) 10 SCC 675 [LNIND 2011 SC 929] : 2012 Cr LJ 413 ;",
"Munish Mubar v State, 2013 Cr LJ 56 (SC) : AIR 2013 SC 912 [LNIND 2012 SC 610] . Articles",
belong to the deceased recovered from the accused based on his disclosure statement.,
Accused could not offer any explanation. Conviction confirmed by the Supreme Court. Prakash,
"Alias Ajayan v State, 2009 Cr LJ 2930 (Ker)-Gold chain of deceased recovered from one of the",
accused. Conviction was held proper. Also see Ramesh v State of Rajasthan (2011) 3 SCC 685,
[LNIND 2011 SC 213] .,
"277. Ashok Kumar Kundi v State of Uttarakhand, 2014 Cr LJ 378 (Utknd).",
THE INDIAN PENAL CODE,
CHAPTER XVII OF OFFENCES AGAINST PROPERTY,
Of Theft,
Of Criminal Breach of Trust,
[s 405] Criminal breach of trust.,
"Whoever, being in any manner entrusted with property,1 or with any dominion over",
"property, dishonestly misappropriates2 or converts to his own use that property, or",
dishonestly uses or disposes of that property3 in violation of any direction of law,
"prescribing the mode in which such trust4 is to be discharged, or of any legal contract,",
"express or implied, which he has made touching the discharge of such trust, or",
"wilfully suffers any other person so to do, commits ""criminal breach of trust"".",
"278.[Explanation 279.[1].—A person, being an employer 280.[of an establishment whether",
exempted under section 17 of the Employees Provident Fund and Miscellaneous,
"Provisions Act, 1952 (19 of 1952), or not] who deducts the employee's contribution",
from the wages payable to the employee for credit to a Provident Fund or Family,
"Pension Fund established by any law for the time being in force, shall be deemed to",
have been entrusted with the amount of the contribution so deducted by him and if he,
makes default in the payment of such contribution to the said fund in violation of the,
"said law, shall be deemed to have dishonestly used the amount of the said",
contribution in violation of a direction of law as aforesaid.],
"281.[Explanation 2.—A person, being an employer, who deducts the employees'",
contribution from the wages payable to the employee for credit to the Employees',
State Insurance Fund held and administered by the Employees' State Insurance,
"Corporation established under the Employees' State Insurance Act, 1948 (34 of 1948),",
shall be deemed to have been entrusted with the amount of the contribution so,
deducted by him and if he makes default in the payment of such contribution to the,
"said Fund in violation of the said Act, shall be deemed to have dishonestly used the",
amount of the said contribution in violation of a direction of law as aforesaid.],
ILLUSTRATIONS,
"(a) A, being Executor to the will of a deceased person, dishonestly disobeys the law",
"which directs him to divide the effects according to the will, and appropriate",
them to his own use. A has committed criminal breach of trust.,
"(b) A is a warehouse-keeper. Z going on a journey, entrusts his furniture to A, under",
a contract that it shall be returned on payment of a stipulated sum for,
warehouse room. A dishonestly sells the goods. A has committed criminal,
breach of trust.,
"(c) A, residing in Calcutta, is agent for Z, residing at Delhi. There is an express or",
"implied contract between A and Z, that all sums remitted by Z to A shall be",
"invested by A, according to Z's direction. Z remits a lakh of rupees to A, with",
directions to A to invest the same in Company's paper. A dishonestly disobeys,
the direction and employs the money in his own business. A has committed,
criminal breach of trust.,
"(d) But if A, in the last illustration, not dishonestly but in good faith, believing that it",
"will be more for Z's advantage to hold shares in the Bank of Bengal, disobeys Z's",
"directions, and buys shares in the Bank of Bengal, for Z, instead of buying",
"Company's paper, here, though Z should suffer loss, and should be entitled to",
"bring a civil action against A, on account of that loss, yet A, not having acted",
"dishonestly, has not committed criminal breach of trust.",
"(e) A, a revenue-officer, is entrusted with public money and is either directed by law,",
"or bound by a contract, express or implied, with the Government, to pay into a",
certain treasury all the public money which he holds. A dishonestly appropriates,
the money. A has committed criminal breach of trust.,
"(f) A, a carrier, is entrusted by Z with property to be carried by land or by water. A",
dishonestly misappropriates the property. A has committed criminal breach of,
trust.,
COMMENT—,
The basic requirement to bring home the accusations under section 405 are the,
requirements to prove conjointly i) entrustment and ii) whether the accused was,
"actuated by dishonest intention or not, misappropriated it or converted it to his own",
use to the detriment of the persons who entrusted it.282. Two distinct parts are,
involved in the commission of the offence of criminal breach of trust. The first part,
consists of the creation of an obligation in relation to the property over which dominion,
or control is acquired by the accused. The second is the misappropriation or dealing,
with the property dishonestly and contrary to the terms of the obligation created.283. A,
trust contemplated by section 405 would arise only when there is an entrustment of,
"property or dominion over property. There has, therefore, to be a property belonging to",
someone which is entrusted to the person accused of the offence under section 405.,
The entrustment of property creates a trust which is only an obligation annexed to the,
ownership of the property and arises out of a confidence reposed and accepted by the,
"owner.284. However, it must be borne in mind that section 405 IPC, 1860 does not",
contemplate the creation of a trust with all the technicalities of the law of trust. It,
contemplates the creation of a relationship whereby the owner of property makes it,
over to another person to be retained by him until a certain contingency arises or to be,
disposed of by him on the happening of a certain event.285.,
"278. Ins. by Act 40 of 1973, section 9 (w.e.f. 1 November 1973).",
"279. Explanation renumbered as Explanation 1 by Act 38 of 1975, section 9 (w.e.f. 1 September",
1975).,
"280. Ins. by Act 33 of 1988, section 27 (w.e.f. 1 August 1988).",
"281. Ins. by Act 38 of 1975, section 9 (w.e.f. 1 September 1975).",
"282. Sadhupati Nageswara Rao v State of Andhra Pradesh, (2012) 8 SCC 547 [LNIND 2012 SC",
"461] : AIR 2012 SC 3242 [LNIND 2012 SC 461] ; Asoke Basak v State of Maharashtra, (2010) 10",
"SCC 660 [LNIND 2010 SC 1699] : (2011) 1 SCC(Cr) 85; Indian Oil Corpn. v NEPC India Ltd, (2006)",
"6 SCC 736 [LNIND 2006 SC 537] ; Pratibha Rani v Suraj Kumar, (1985) 2 SCC 370 [LNIND 1985",
"SC 86] ; Rashmi Kumar v Mahesh Kumar Bhada, (1997) 2 SCC 397 [LNIND 1996 SC 2178] ; R",
"Venkatkrishnan v Central Bureau of Investigation, (2009) 11 SCC 737 [LNIND 2009 SC 1653] .",
"283. Onkar Nath Mishra v State, (NCT of Delhi) (2008) 2 SCC 561 [LNIND 2007 SC 1511] : (2008)",
1 SCC (Cr) 507.,
"284. Common Cause v UOI, (1999) 6 SCC 667 [LNIND 1999 SC 637] : 1999 SCC (Cr) 1196.",
285. VP Shrivastava v Indian Explosives Ltd (2010) 10 SCC 361 [LNIND 2010 SC 920] : (2010) 3,
"SCC (Cr) 1290; Jaswantrai Manilal Akhaney v State of Bombay, AIR 1956 SC 575 [LNIND 1956 SC",
40] : 1956 Cr LJ 1116 .,
THE INDIAN PENAL CODE,
CHAPTER XVII OF OFFENCES AGAINST PROPERTY,
Of Theft,
Of Criminal Breach of Trust,
[s 406] Punishment for criminal breach of trust.,
Whoever commits criminal breach of trust shall be punished with imprisonment of,
"either description for a term which may extend to three years, or with fine, or with",
both.,
COMMENT—,
"The criminal breach of trust would, inter alia, mean using or disposing of the property",
by a person who is entrusted with or has otherwise dominion there over. Such an act,
must not only be done dishonestly but also in violation of any direction of law or any,
contract express or implied relating to carrying out the trust.286. To constitute this,
offence there must be dishonest misappropriation by a person in whom confidence is,
placed as to the custody or management of the property in respect of which the breach,
of trust is charged. The ownership or beneficial interest in the property in respect of,
which criminal breach of trust is alleged to have been committed must be in some,
person other than the accused and the latter must hold it on account of some person,
or in some way for his benefit.287. The offence of criminal breach of trust closely,
resembles the offence of embezzlement under the English law. Offences committed by,
trustees with regard to trust property fall within the purview of this section.,
A partner has undefined ownership along with other partners over all the assets of the,
partnership. If he chooses to use any of them for his own purpose he may be,
accountable civilly to other partners. But he does not thereby commit any,
misappropriation. A partner may have dominion over the partnership property. But,
mere dominion is not enough. It must further be shown that his dominion was the,
result of entrustment. Thus to prosecute a partner the prosecution must establish that,
dominion over the assets or a particular asset of the partnership was by a special,
"agreement between the parties, entrusted to the accused partner. If in the absence of",
such a special agreement a partner receives money belonging to the partnership he,
cannot be said to have received it in a fiduciary capacity or in other words cannot be,
held to have been entrusted with dominion over partnership properties and without,
entrustment there cannot be any criminal breach of trust.288. The Supreme Court has,
reiterated that where a partner is entrusted with property under special contract and he,
"holds that property in a fiduciary capacity, any misappropriation of that property would",
amount to criminal breach of trust.289.,
[s 406.1] Ingredients.—,
The section requires—,
(1) Entrusting any person with property or with any dominion over property;,
(2) The person entrusted (a) dishonestly misappropriating or converting to his own,
use that property; or,
(b) Dishonestly using or disposing of that property or wilfully suffering any other,
person so to do in violation,
(i) of any direction of law prescribing the mode in which such trust is to be,
"discharged, or",
(ii) of any legal contract made touching the discharge of such trust.,
"This offence consists of any one of four positive acts, namely, misappropriation,",
"conversion, user, or disposal of property. Neither failure to account for breach of",
"contract, however dishonest, is actually and by itself the offence of criminal breach of",
trust.290.,
Sufferance of any loss by the victim is not necessary for leading to a conviction under,
the section.291.,
The section does not require that the trust should be in furtherance of any lawful,
object. Offences committed by trustees with regard to trust property fall within the,
purview of this section. Negligence or other misconduct causing the loss of trust,
"property may make the person entrusted civilly responsible, but will not make him",
guilty of criminal breach of trust.,
[s 406.2] Criminal misappropriation and criminal breach of trust.—,
In criminal misappropriation the property comes into the possession of the offender by,
"some casualty or otherwise, and he afterwards misappropriates it. In the case of",
"criminal breach of trust the offender is lawfully entrusted with the property, and he",
"dishonestly misappropriates the same, or wilfully suffers any other person so to do,",
instead of discharging the trust attached to it.,
"1. 'Being in any manner entrusted with property'.—The words ""in any manner"" do not",
"enlarge the term ""entrustment"" itself and, unless there is entrustment, the transaction in",
question cannot be affected by the terms of that section.292. The word 'entrusted' is,
not a term of law. In its most general significance all it imports is a handing over of the,
possession for some purpose which may not imply the conferring of any proprietary,
right at all.293. The natural meaning of 'entrusted' involves that the assured should by,
"some real and conscious volition have imposed on the person, to whom he delivers the",
"goods, some species of fiduciary duty.294. The expression ""entrustment"" carries with it",
the implication that the person handing over any property or on whose behalf that,
"property is handed over to another, continues to be its owner. Further, the person",
handing over property must have confidence in the person taking the property so as to,
create a fiduciary relationship between them.295.,
"Once entrustment is proved, the prosecution has not to prove any misappropriation. It",
is for the accused to prove in his defence that there was no misappropriation. The,
offence becomes proved when it is shown that the money has not been applied to the,
purpose for which it was entrusted.296.,
"[s 406.3] Customary gifts at engagement, etc.—",
"Gifts in cash or kind which are customarily given at the time of engagement, tilak or",
marriage ceremony cannot be regarded as an entrustment of items of dowry. No,
complaint can be presented against the donee in respect of such customary,
practices.297.,
"Where a person authorised to collect, delegates his functions to a subordinate of his,",
"and the latter acts in exercise of such delegated authority, any amount that is paid to",
him would constitute 'entrustment' within the meaning of section 405.298.,
[s 406.4] 'Property'.—,
The word 'property' is used in the Code in a much wider sense than the expression,
'movable property'. There is no good reason to restrict the meaning of the word,
'property' to movable property only when it is used without any qualification in this,
section or other sections of the Penal Code.299. The offence of criminal breach of trust,
"is committed not only by dishonest conversion, but also by dishonest use or",
"disposition, and there is nothing in the wording of this section to exempt from the",
definition of criminal breach of trust dishonest use of immovable property by the,
person entrusted with dominion over it.,
In cases of criminal breach of trust a distinction has to be drawn between the person,
entrusted with property and one having control or general charge over the property. In,
"case of the former, if it is found that the property is missing, without further proof, the",
"person so entrusted will be liable to account for it. In the latter case, that person will be",
liable only when it is shown that he misappropriated it or was a party to criminal breach,
of trust committed in respect of that property by any other person.300.,
2. 'Dishonestly misappropriates'.—A temporary misappropriation may also constitute a,
criminal breach of trust. The bank officials in this case made public money available to,
a private party contrary to statutory provisions and Departmental instructions. The,
dishonest intention was self-evident.301. Terms of section 405 are very wide. They,
apply to one who is in any manner entrusted with property or dominion over property.,
Section 405 does not require that trust should be in furtherance of any lawful object. It,
merely provides that a person commits criminal breach of trust if he dishonestly,
misappropriates or converts to his own use the property entrusted to him.302.,
[s 406.5] Negligence is not 'Dishonestly'.—,
Criminal or dishonest intention is a sine qua non in an offence of criminal breach of,
trust. This being so the prosecution has to show that the accused dishonestly,
misappropriated or converted to his own use or dishonestly disposed of property,
entrusted to him. The prosecution must prove 'entrustment' or 'domino' over the,
property with the person proceeded and the person so entrusted has dishonestly,
misappropriated or converted that property. Even if the prosecution succeeds in,
"proving entrustment, it would fail to establish the offence against the accused, if it fails",
to prove that he has misappropriated the property entrusted303.,
It has been held that a mere error of judgment does not attract criminal liability.304.,
[s 406.6] Wilful omission to account.—,
"Similarly, ""in the case of a servant charged with misappropriating the goods of his",
master the elements of criminal offence of misappropriation will be established if the,
"prosecution proves that the servant received the goods, that he was under a duty to",
account to his master and had not done so. If the failure to account was due to an,
"accidental loss the facts being within the servant's knowledge, it is, for him to explain",
"the loss"".305. In JM Desai's case the matter was further clarified by the Supreme Court",
"to say, ""conviction of a person for the offence of criminal breach of trust may not in all",
"cases be founded merely on his failure to account for the property entrusted to him, or",
"over which he has dominion, even when a duty to account is imposed upon him, but",
where he is unable to account or renders an explanation for his failure to account,
which is untrue an inference of misappropriation with dishonest intent may readily be,
"made"".306.",
Mere retention of goods by a person without misappropriation does not constitute,
criminal breach of trust.307.,
3. 'Dishonestly uses or disposes of that property'.— To constitute the offence of,
"criminal breach of trust punishable under section 406 of the IPC, 1860, there must be",
dishonest misappropriation by a person in whom confidence is placed as to the,
custody or management of the property in respect of which the breach of trust is,
charged. The misappropriation or conversion or disposal must be with a dishonest,
"intention. Every breach of trust gives rise to a suit for damages, but it is only when there",
is evidence of a mental act of fraudulent misappropriation that the commission of,
embezzlement of any sum of money becomes a penal offence punishable as criminal,
breach of trust. It is this mental act of fraudulent misappropriation that clearly,
"demarcates an act of embezzlement which is a civil wrong or tort, from the offence of",
"criminal breach of trust. In the present case, apparently the prosecution has failed to",
establish the offence of cheating and criminal breach of trust in the absence of mens,
"rea. In such view of the matter, the accused persons could not have been convicted.308.",
"3A. In violation of any direction of law.—The criminal breach of trust would, inter alia,",
mean using or disposing of the property by a person who is entrusted with or has,
otherwise dominion there over. Such an act must not only be done dishonestly but also,
in violation of any direction of law or any contract express or implied relating to,
carrying out the trust. A direction of law need not be a law made by the Parliament or a,
Legislature; it may be made by an authority having the power therefor; the law could be,
"a subordinate legislation, a notification or even a custom.309. It has been held that the",
"expression ""direction of law"", even if taken literally, would include a direction issued by",
authorities in exercise of their statutory power as also power of supervision. Failure on,
the part of bank officials to follow RBI instructions and provisions of a Departmental,
Manual was a violation of a direction of law amounting to criminal breach of trust. The,
Manual was the UCO Bank Manual of Instructions on Bill Discounting.310.,
"It has been held that the expression ""direction of law"" in section 405 includes banking",
"norms, practices and directions given in internal Departmental instructions of a bank.",
Bank officials who allowed advance credits on banker's cheques to a customer in,
violation of Departmental instructions acted in violation of direction of law. The,
officials had dominion over the money belonging to the bank and they dishonestly used,
that money for conferring a benefit on the customer. They were held guilty of the,
offence under the section.311.,
[s 406.7] Partner.—,
"In Velji Raghavji,312. the Supreme Court approved this statement of law in Bhuban",
"MohanRana v Surendra Mohan Das, and held that mere existence of the accused's",
dominion over property is not enough and that it must be further shown that his,
dominion was the result of entrustment. According to the Supreme Court the,
prosecution must establish that dominion over the assets or a particular asset of the,
"partnership was by a special agreement between the parties, entrusted to the accused",
"partner. Where the partner of a firm had taken away some VCRs and cassettes, a",
"criminal complaint was not allowed, the loss to the firm being essentially of civil nature",
"and, therefore, civil proceedings would have been more appropriate.313. Signing of",
contracts on behalf of the firm particularly when the partnership deed authorised,
partners to sign documents on behalf of others was held to be not constituting a,
criminal breach of trust.314. As to when can a partner be prosecuted on a charge of,
"criminal breach of trust see ""Comments"" ante.",
[s 406.8] Misappropriation of company money by nominated director.—,
The accused was the director of a public limited company and in that capacity he,
misappropriated a huge sum of money. In the complaint against him the charge was,
"made out under section 409. However, the charge was framed under section 408. It",
was held that the accused was a nominated director of the company and there was,
"nothing to indicate that he was an employee or servant of the company. Hence, his",
conviction under section 408 was not to be legally sound. He was convicted under,
section 406.315.,
[s 406.9] Directors of company.—,
The directors of a company were prosecuted for non-deposit of PF amount of,
employees. It was held that directors are not in the position of the principal employer.,
They could not be prosecuted as there was no entrustment of the amount to them in,
"terms of section 405, explanation 1.316. The offence alleged in the criminal complaint",
"filed by respondent is under sections 405 and 420 IPC, 1860 where under no specific",
"liability is imposed on the officers of the company, if the alleged offence is by the",
"Company. In the absence of specific details about the same, no person other than",
Company can be prosecuted under the alleged complaint.317.,
The complainant was the wholesale dealer of the company. His dealership was,
terminated. Even so he sent a demand draft to the company for supply of goods. He,
did so because his dealership was subsequently reinstated by the company. The,
proprietor of the dealer firm filed a complaint alleged offence by the company because,
neither it supplied the goods nor returned the money. The company's application for,
quashing the complaint was rejected because the offence was prima facie made out.,
The Supreme Court said that only the company could be made liable but not its,
managing director or any other employee. The Supreme Court reversed the order of the,
"High Court. Costs and compensation of harassment was quantified at Rs. 1,00,000.318.",
[s 406.10] Husband and Wife.—,
The Supreme Court has held that reading this section with sections 4 and 6 of the,
"Dowry Prohibition Act, 1961, marriage gifts and ornaments received from in-laws must",
"be handed over to the wife on being driven out and a failure to do so, would amount to",
an offence under this section.319. Where the wife was turned out of the house by the,
husband who refused to return the 'streedhan' despite repeated requests and,
"persuasions, it was held that criminal breach of trust is a continuing offence and fresh",
cause of action accrues to the wife till the return of the property.320.,
It has been held that taking away by the mother-in-law of gifts and cash offerings to the,
wife at the time of her marriage amounts to misappropriation of streedhan. It was,
further held that offering of 25 lakh rupees for grant of divorce by mutual consent as,
compensation to the complainant did not per se constitute any offence under the,
"section. Any gift made to the bridegroom or her parents, whether in accordance with",
any custom or law also did not constitute an offence under the section. The,
proceedings were directed to be continued only against the mother-in-law.321.,
[s 406.11] Pledgee.—,
"where, in derogation of the statutory requirement of giving reasonable notice before",
"disposing of the articles pledged, the pledgee sells them and the price obtained is also",
"not commensurate with the real value of the goods, the Delhi High Court expressed the",
opinion that it may amount to criminal breach of trust.322.,
[s 406.12] Vehicle delivered under hire-purchase.—,
When hirer himself committed default by not paying the instalments and under the,
"agreement, the appellants have repossessed the vehicle, the respondent-hirer cannot",
have any grievance as the vital element of 'dishonest intention' is lacking. The element,
of 'dishonest intention' which is an essential element to constitute the offence of theft,
cannot be attributed to a person exercising his right under an agreement entered into,
between the parties as he may not have an intention of causing wrongful gain or to,
cause wrongful loss to the hirer.323.Where a person to whom a truck was delivered,
"under hire-purchase scheme, altered the identity of the vehicle by tampering with",
"numbers, it was held that an offence under section 406 was made out. The accused",
was convicted to four years R1.324.,
[s 406.13] Default in refunding share application money.—,
"A person, who makes a public issue for inviting applications for shares and who",
becomes liable to refund the share application money because of refusal by a stock,
"exchange to approve his securities and fails to refund the money, can be prosecuted for",
criminal breach of trust.325.,
[s 406.14] Money saving scheme.—,
The petitioner was running money saving scheme. He used to collect money from the,
members for different committees and disbursement to them. The disbursement was,
stopped because of non-payment by members of the amount due. It was held that,
there was no dishonest intention to misappropriate money and offences under,
sections 406 and 420 were not made out.326.,
[s 406.15] Re-payment of loan.—,
Where the accused sold machinery and goods which had been hypothecated to bank,
"and the amount not paid to bank for repayment of loan, Court held that dispute in",
question is of civil nature and the trial Court justified in dismissing complaint under,
section 203.327.,
4. 'Legal contract express or implied'.—Violation of a contract in order to amount to,
"criminal breach of trust has to be in respect of a legal or valid contract, and not one for",
"a criminal purpose, e.g., purchase of stolen property, etc.328.",
[s 406.16] CASES.—Breach of trust.—,
Where a retired employee of a company wrongly occupied the Company quarters for,
"more than 18 years, dismissal of complaint under section 630 Companies Act, 2013",
"and section 406 IPC, 1860 on technical grounds by the magistrate was held",
untenable.329. The complaint does not contain the averment that Rs.5 lakhs was,
"entrusted to the appellant, either in his personal capacity or as the Chairman of MSEB",
and that he misappropriated it for his own use. The said amount was deposited by the,
complainant company with MSEB and there is nothing in the complaint which may,
even remotely suggest that the complainant had entrusted any property to appellant or,
"that the appellant had dominion over the said money of the complainant, which was",
"converted by him to his own use, so as to satisfy the ingredients of section 405 IPC,",
1860. Proceedings quashed.330. Where the accused took a jeep on loan for a specific,
purpose and for a particular period but refused to return it on demand by the,
complainant after the purpose had been served and the stipulated period was long,
"over, it was held that there was a prima facie case of criminal breach of trust and as",
such the complaint could not be thrown out.331.,
[s 406.17] Refusal to return streedhan.—,
Where the husband and the father-in-law turned out a Hindu woman from the marital,
"home and refused to return her ornaments, money and clothes despite repeated",
"demands, it was held that an offence of criminal breach of trust as defined in sections",
"405 and 406, IPC, 1860, was prima facie made out and the case could not be quashed.",
"Section 27 of the Hindu Marriage Act, 1955 and section 14 of the Hindu Succession",
"Act, 1956, nowhere provide that the concept of streedhan is abolished or that a remedy",
under the criminal law is not available.332.,
[s 406.18] Violation of legal contract.—,
"where there is a mere breach of the contract terms, such as default in payment of an",
"instalment, a liability of civil nature only would arise.333. Where a contractor was given",
"cement for construction work by the Minor Irrigation Department, Government of Bihar",
under a specific agreement that he would return unused cement but instead of doing,
"so he sold the cement to outsiders, it was held a fiduciary relationship had been clearly",
established in the instant case and the contractor was liable to be convicted under,
"section 406, IPC, 1860.334.",
[s 406.19] Acting contrary to directions of person entrusting money.—,
"One of the accused persons, a registered stock broker, purchased mutual fund",
securities in the name of a bank and later on sold them. The sale was contrary to the,
terms subject to which securities were issued (sale before completion of lock-in,
period). But otherwise there was no violation of any statutory provisions. Neither the,
name lending bank nor the issuing institution objected to the sale. It was held that the,
accused was the real owner of the securities. There was no breach of trust on his part,
because the property sold was his own. The securities were purchased by another,
financial institution and the other accused was an officer of that institution. He was,
also acquitted of similar charges. He could not be convicted under the Prevention of,
"Corruption Act, 1988 for the reason that purchase of securities to the tune of 33 crores",
could not have been done without authorisation from higher authorities. The,
transaction was also legal.335.,
[s 406.20] Civil wrong when becomes crime.—,
A distinction must be made between a civil wrong and a criminal wrong. When dispute,
"between the parties constitute only a civil wrong and not a criminal wrong, the Courts",
would not permit a person to be harassed although no case for taking cognizance of,
the offence has been made out336. An act of breach of trust simpliciter involves a civil,
wrong of which the person wronged may seek his redress for damages in a civil Court,
but a breach of trust with mens rea gives rise to a criminal prosecution as well. The,
"element of 'dishonest intention' is therefore, an essential element to constitute the",
"offence of Criminal Breach of Trust.337. Breach of trust may be basically a civil wrong,",
but it gives rise to criminal liability also when there is mens rea.338. The difference,
"between the two lies in dishonest intention.339. If there is a flavour of civil nature, the",
same cannot be agitated in the form of criminal proceeding. If there is huge delay and,
"in order to avoid the period of limitation, it cannot be resorted to a criminal",
proceeding.340. A civil suit was filed alleging negligence and breach of contractual,
obligations. The Court said that a breach of contract simpliciter does not constitute any,
offence. The criminal complaint must disclose the ingredients of the offence. For,
ascertaining the prima facie correctness of the allegations the Court can look at the,
correspondence between the parties and other admitted documents. Criminal,
proceedings should not be encouraged when they are found to be mala fide or,
otherwise an abuse of the process of the Court.341. Merely because a civil claim has,
"been raised by the complainant regarding the breach of agreement, it cannot prevent",
him from initiating criminal proceedings.342. Though a case of breach of trust may be,
both a civil wrong and a criminal offence but there would be certain situations where it,
would predominantly be a civil wrong and may or may not amount to a criminal,
"offence. The present case is one of that type where, if at all, the facts may constitute a",
civil wrong and the ingredients of the criminal offences are wanting. Having regard to,
the relevant documents including the trust deed as also the correspondence following,
"the creation of the tenancy, the submissions advanced on behalf of the parties, the",
natural relationship between the settlor and the trustee as mother and son and the fall,
out in their relationship and the fact that the wife of the co-trustee was no more,
"interested in the tenancy, it must be held that the criminal case should not be",
continued.343.,
[s 406.20.1] Matters under special laws.—,
"The act of taking away dowry articles by the husband and in-laws, being in violation of",
"special legislation contained in the Dowry Prohibition Act, 1961, such offence should",
"be tried under the special legislation rather than under the general provisions of IPC,",
1860. The Supreme Court also pointed out that if any article was given by way of,
"dowry, the question of its entrustment on behalf of wife would not arise.344.",
[s 406.21] Arbitration clause.—,
The presence of an arbitration clause between the parties does not bar criminal,
proceedings under section 406. Both civil and criminal proceedings can be there side,
by side.345.,
[s 406.22] Period of Limitation.—,
The Punjab and Haryana High Court is of the view that the offence under the section is,
of continuing nature. Every day a fresh cause of action keeps accruing until the,
property is actually returned.346.,
[s 406.23] Sanction for prosecution.—,
In a charge against a Government servant under the section read with section 120B,
"(conspiracy), sanction for prosecution is not necessary.347. Since transaction for",
"offences involved took place in a foreign country, sanction from Central Government is",
a must to enable Court to take cognizance of offences and proceed further in case.,
"The High Court held that trial has proceeded without sanction and, thus, rendering it",
"invalid, and in course of such invalid trial magistrate passed order for further",
"investigation, which too was invalid.348.",
[s 406.24] Compromise.,
Compounding was denied on the ground that section 406 not compoundable as,
amount involved was more than Rs. 250. The Supreme Court held that it is perhaps,
"advisable that in disputes where the question involved is of a purely personal nature,",
the Court should ordinarily accept the terms of the compromise even in criminal,
proceedings as keeping the matter alive with no possibility of a result in favour of the,
"prosecution is a luxury which the Courts, grossly overburdened as they are, cannot",
afford and that the time so saved can be utilized in deciding more effective and,
meaningful litigation. This is a common sense approach to the matter based on ground,
of realities and bereft of the technicalities of the law.349.,
[s 406.25] Jurisdiction.—,
The Streedhan was handed over at one place and misappropriated at another place. It,
was held that there was no jurisdiction at the place where it was entrusted because at,
that time there might have been no intention to misappropriate. Thus jurisdiction was,
only at the place where misappropriation was committed.350.,
[s 406.25.1] Entrustment of cheque.—,
A cheque has been held to be a property within the meaning of section 405. A blank,
cheque was issued to a person who misappropriated the same or used it for a purpose,
for which it was not given. The case under section 406 was held to have been made,
out.351.,
[s 406.26] Dishonour of cheque.—,
There were regular business dealings in the course of which payments were made by,
cheques. One such cheque was dishonoured for which the criminal complaint was,
instituted. There was nothing in the complaint to show that the intention was to cheat,
the complainant by giving him the cheque as a camouflage. The transaction under,
which the cheque was given was a mere agreement to sell without any actual transfer,
of goods. Thus the offence of cheating or of criminal breach of trust was not made out.,
The complaint was quashed.352.,
"286. Sudhir Shantilal Mehta v CBI, (2009) 8 SCC 1 [LNIND 2009 SC 1652] : (2009) 3 SCC (Cr)",
646.,
"287. CM Narayan, AIR 1953 SC 478 [LNIND 1952 SC 159] : 1954 Cr LJ 102 .",
"288. Velji Raghavji Patel, 1965 (2) Cr LJ 431 : AIR 1965 SC 1433 [LNIND 1964 SC 350] .",
"289. Anil Saran v State of Bihar, AIR 1996 SC 204 [LNIND 1995 SC 819] : 1996 Cr LJ 408 .",
"290. Daityari Tripatti v Subodh Chandra Chaudhuri, (1942) 2 Cal 507 .",
"291. R Venkatkrishnan v CBI, (2009) 11 SCC 737 [LNIND 2009 SC 1653] .",
"292. Satyendra Nath Mukherji, (1947) 1 Cal 97 . This case was approved by the Supreme Court",
"in Jaswantlal, AIR 1968 SC 700 [LNIND 1967 SC 338] : 1968 Cr LJ 803 . Dani Singh, AIR 1963 Pat",
"52 ; Ram Niranjan, (1964) 1 Cr LJ 614 .",
"293. Per Lord Haldane in Lake v Simmons, (1927) AC 487 . VR Dalal v Yougendra Naranji",
"Thakkar, (2008) 15 SCC 625 [LNIND 2008 SC 1222] : AIR 2008 SC 2793 [LNIND 2008 SC 1222] ,",
"""entrustment"" being the first ingredient of breach of trust, if it is missing, there would be no",
"criminal breach of trust. Onkar Nath Mishra v State (NCT) of Delhi, (2008) 2 SCC 561 [LNIND",
"2007 SC 1511] : 2008 Cr LJ 1391 , entrustment of property to in-laws or any misappropriation by",
"them found lacking, charge not made out.",
294. Per Lord Sumner in ibid.,
"295. Jaswantlal, AIR 1968 SC 700 [LNIND 1967 SC 338] : 1968 Cr LJ 803 .",
"296. State of HP v Karanvir, 2006 Cr LJ 2917 : AIR 2006 SC 2211 [LNIND 2006 SC 394] : (2006) 5",
SCC 381 [LNIND 2006 SC 394] .,
"297. Khuman Chand v State of Rajasthan, 1998 Cr LJ 1693 (Raj).",
"298. Rajkishore v State, AIR 1969 Ori 190 [LNIND 1969 ORI 35] .",
"299. RK Dalmia, AIR 1962 SC 1821 [LNIND 1962 SC 146] : (1962) 2 Cr LJ 805 .",
"300. Kesar Singh v State, 1969 Cr LJ 1595 .",
"301. R Venkatkrishnan v CBI, (2009) 11 SCC 737 [LNIND 2009 SC 1653] . It made no difference",
to the criminal liability that the money was quickly recovered and Departmental action was,
taken against bank officials.,
302. Ibid.,
"303. Sardar Singh, 1977 Cr LJ 1158 : AIR 1977 SC 1766 .",
"304. Sudhir Shantilal Mehta v CBI, (2009) 8 SCC 1 [LNIND 2009 SC 1652] .",
"305. Krishan Kumar, 1959 Cr LJ 1508 (SC) : AIR 1959 SC 1390 [LNIND 1959 SC 135] .",
"306. JM Desai, 1960 Cr LJ 1250 : AIR 1960 SC 889 [LNIND 1960 SC 79] ; See also Bipin Chandra,",
1964 (1) Cr LJ 688 (Ori).,
"307. Nirmalabai v State, (1953) Nag 813.",
"308. Ramdeo Singh v State of Bihar, 2013 Cr LJ 891 (Pat).",
"309. Sudhir Shantilal Mehta v CBI, (2009) 8 SCC 1 [LNIND 2009 SC 1652] : (2009) 3 SCC(Cr) 646.",
"310. Sudhir Shantilal Mehta v CBI, (2009) 8 SCC 1 [LNIND 2009 SC 1652] .",
"311. Mir Naqvi Askari v CBI, (2009) 15 SCC 643 [LNIND 2009 SC 1651] : AIR 2010 SC 528",
[LNIND 2009 SC 1651] .,
"312. Velji Raghavji, (1964) 67 Bom LR 443 SC : AIR 1965 SC 1433 [LNIND 1964 SC 350] : (1965)",
2 Cr LJ 431 .,
"313. Alagiri v State, 1996 Cr LJ 2978 (Mad).",
"314. Anwarul Islam v WB, 1996 Cr LJ 2912 (Cal). Nandlal Lakotia v State of Bihar, 2001 Cr LJ",
"1900 (Pat), a partner becomes the owner of his share only after settlement of accounts and",
allotment of his share to the partner. The partner in this case was a working partner. He,
dishonestly misappropriated the property to the firm entrusted to him. He was liable for criminal,
breach of trust.,
"315. Turner Morrison & Co, Bombay v KN Tapuria, 1993 Cr LJ 3384 .",
"316. BP Gupta, v State of Bihar, 2000 Cr LJ 781 (Pat).",
"317. Thermax Ltd v KM Johny, (2011) 13 SCC 412 [LNIND 2011 SC 947] : (2012) 2 SCC (Cr) 650;",
"Pramod Parmeshwarlal Banka v State of Maharashtra, 2011 Cr LJ 4906 (Bom).",
"318. SK Alagh v State of UP, (2008) 5 SCC 662 [LNIND 2008 SC 368] : AIR 2008 SC 1731 [LNIND",
2008 SC 368] : 2008 Cr LJ 2256 : (2008) 3 All LJ 588.,
"319. Madhu Sudan Malhotra v Kishore Chand Bhandari, 1988 BLJR 360 : 1988 SCC (Cr) 854 :",
1988 Supp SCC 424 .,
"320. Balram Singh v Sukhwant Kaur, 1992 Cr LJ 792 (P&H).",
"321. Bhaskar Lal Sharma v Monica, (2009) 10 SCC 604 [LNIND 2009 SC 1432] : (2009) 161 DLT",
739 .,
"322. JRD Tata, Chairman TISCO v Payal Kumar, 1987 Cr LJ 447 (Del).",
"323. Charanjit Singh Chadha v Sudhir Mehra, AIR 2001 SC 3721 [LNIND 2001 SC 2906] : (2001) 7",
SCC 417 [LNIND 2001 SC 2906] .,
"324. State of UP v Sita Ram, 1998 Cr LJ 4225 (All), the court said that ingredients of the offence",
under section 420 were not made out.,
"325. Radhey Shyam Khemka v State of Bihar, 1993 AIR SCW 2427 : 1993 Cr LJ 2888 : (1993) 3",
SCC 54 [LNIND 1993 SC 276] .,
"326. Ghansham Das v State of Haryana, 1992 Cr LJ 2594 (P&H).",
"327. Kaumudiben Harshadbhai Joshi v State of Gujarat, 2012 Cr LJ 4720 (Guj).",
"328. Gobardhan Chandra Mandal v Kanai Lal Mandal, (1953) 2 Cal 133 .",
"329. Automobile Products India Ltd v Das John Peter, (2010) 12 SCC 593 [LNIND 2010 SC 624] :",
(2011) 1 SCC(Cr) 768.,
"330. Asoke Basak v State of Maharashtra, (2010) 10 SCC 660 [LNIND 2010 SC 1699] : (2011) 1",
"SCC(Cr) 85 ; Chandralekha v State of Rajasthan, JT 2012 (12) SC 390 [LNIND 2012 SC 809] :",
2012 (12) Scale 692 [LNIND 2012 SC 809] – FIR filed after six years of the incident-Continuation,
of proceedings is an abuse of process of law-FIR quashed; Also see MM Prasad Khaitan v RG,
"Poddar, (2010) 10 SCC 673 [LNIND 2010 SC 991] .",
"331. Halimuddin Ahmad, 1976 Cr LJ 449 (Pat).",
"332. Pratibha Rani, 1985 Cr LJ 817 : AIR 1985 SC 628 [LNIND 1985 SC 86] : (1983) 2 SCC 370 .",
"For other cases of prosecution of the same kind, see Manas Kumar Dutta v Aloka Dutta, 1991 Cr",
"LJ 288 (Ori); Bairo Prasad v Laxmibai Pateria, 1991 Cr LJ 2535 : AIR 1985 SC 628 [LNIND 1985",
SC 86] : (1985) 2 SCC 370 [LNIND 1985 SC 86] . Where the amount defalcated was surrendered,
by the accused and he was released on bail. His sentence of one year R.I. was reduced to the,
"period already undergone. Diannatius v State of Kerala, 1988 SCC (Cr) 57 (II) : 1987 Supp SCC",
"189 . Such a proceeding cannot be stayed under writ jurisdiction. C Laxmichand v State of TN,",
1991 Cr LJ 1647 (Mad).,
"333. Sunil Ranjan Ghose v Samar Roy, 1987 Cr LJ 1603 (Cal).",
"334. Kalaktar Singh, 1978 Cr LJ 663 (Pat); State v Jaswantlal Nathalal, 1968 Cr LJ 803 (SC)",
distinguished on the ground that in the latter case the contract was not produced in evidence,
nor any oral evidence led to prove the terms of the contract. See further Madhavrao J Scindia v,
"SC Angre, AIR 1988 SC 709 [LNIND 1988 SC 100] : 1988 Cr LJ 853 : (1988) 1 SCC 692 [LNIND",
"1988 SC 100] , where elements of a crime were wanting and, therefore, proceedings, were",
"quashed; Bal Kishan Das v PC Nagar, AIR 1991 SC 1531 : 1991 Cr LJ 1837 , where arbitration",
"proceedings about the matter in question had been going on for more than 17 years, the",
Supreme Court rejected prosecution under this section. Thematter was of civil nature; AL Panian,
"v State of AP, 1990 Supp SCC 607 : 1991 SCC (Cr) 84, failure to pay on due date on the expiry of",
credit period of sale is not a matter covered by this provision. Central Bureau of Investigation v,
"Duncan Industries, AIR 1996 SC 2452 [LNIND 1996 SC 1028] : 1996 Cr LJ 3501 , the allegation in",
the complaint that the goods in respect of which floating charge was created in favour of banks,
"were disposed by the debtor company, does not constitute criminal breach of trust.",
"335. S Mohan v CBI, (2008) 7 SCC 1 [LNIND 2008 SC 1234] : (2008) 106 Cut LT 360, following",
"the Canbank Financial Services Ltd, case (2004) 8 SCC 355 [LNIND 2004 SC 892] : AIR 2004 SC",
"5123 [LNIND 2004 SC 892] , where it was held that the accused had a transferable interest in the",
securities purchased in the name of Andhra Bank and its subsidiary.,
"336. Joseph Salvaraj A v State of Gujarat, AIR 2011 SC 2258 [LNIND 2011 SC 576] : (2011) 7 SCC",
"59 [LNIND 2011 SC 576] ; Devendra v State of UP, (2009) 7 SCC 495 [LNIND 2009 SC 1158] :",
(2009) 3 SCC Cr 461.,
"337. Venkatakrishnan v CBI, 2010 SC 1812 : (2009) 11 SCC 737 [LNIND 2009 SC 1653] ; SW",
"Palanikar v State of Bihar, 2002 (1) SCC 241 [LNIND 2001 SC 2381] .",
"338. Sudhir Shantilal Mehta v CBI, (2009) 8 SCC 1 [LNIND 2009 SC 1652] : (2009) 3 SCC Cr 646.",
"339. R Venkatkrishnan v CBI, (2009) 11 SCC 737 [LNIND 2009 SC 1653] .",
"340. Thermax Ltd v KM Johny, (2011) 13 SCC 412 [LNIND 2011 SC 947] : (2012) 2 SCC(Cr) 650.",
"341. All Cargo Movers India Pvt Ltd v Dhanesh Badarmal Jain, (2007) 14 SCC 776 [LNIND 2007",
SC 1227] : AIR 2008 SC 247 [LNIND 2007 SC 1227] .,
"342. Lee Kun Hee v State of UP, (2012) 3 SCC 132 [LNIND 2012 SC 89] : AIR 2012 SC 1007",
"[LNINDORD 2012 SC 443] : 2012 Cr LJ 1551 ; Arun Bhandari v State of UP, (2013) 2 SCC 801",
[LNIND 2013 SC 18] : 2013 Cr LJ 1020 (SC)- Case is not purely in civil nature- High Court erred in,
"quashing the order of cognizance; See also Adarsh Kaur Gill v State of NCT of Delhi, 2013 Cr LJ",
1955 (Del).,
"343. Thermax Ltd v KM Johny, (2011) 13 SCC 412 [LNIND 2011 SC 947] : (2012) 2 SCC (Cr) 650;",
"Nagawwa v Veeranna Shivalingappa Konjalgi, 1976 (3) SCC 736 [LNIND 1976 SC 188] : AIR 1976",
"SC 1947 [LNIND 1976 SC 188] ; State of Haryana v Bhajan Lal, 1992 Supp (1) SCC 335 : AIR 1992",
SC 604 .,
"344. Harmanpreet Singh Ahluwalia v State of Punjab, (2009) 7 SCC 712 [LNIND 2009 SC 1121] :",
2009 Cr LJ 3462.,
"345. Sham Lal v State of Punjab, 2001 Cr LJ 2987 (P&H).",
"346. Balram Singh v Sukhwant Kaur, 1992 Cr LJ 972 (P&H). The court surveyed a number of",
"authorities on the concept of continuing offence. State of Bihar v Deokaran Kenshi, AIR 1973 SC",
"908 [LNIND 1972 SC 392] : 1973 Cr LJ 347 and Bhagirath Kanoris v State of MP, AIR 1984 SC",
"1688 [LNIND 1984 SC 377] : 1984 Lab IC 1578 , wherein the Supreme Court explained the",
"concept of a continuing offence. Best v Butter, (1932) 2 KB 108 , wherein it was held under the",
"Trade Unions Act that every day that the moneys were willfully withheld, the offence was",
"committed. The court noted the contrary view expressed in Waryam Singh v State of Punjab,",
"1982 Cr LJ (NOC) 117 (P&H) and State of Punjab v Sarwan Singh, 1981 Cr LJ 722 (SC) : 1981",
"PLR 451 : AIR 1981 SC 1054 [LNIND 1981 SC 201] , but distinguished them because there in the",
"opposite party had conceded to the proposition. In Gurcharan Singh v Lakhwinder Singh, (1987) 1",
Recent CR 424 it was again taken for granted without argument that the offence under the,
section was not of continuing nature.,
"347. State of Kerala v V Padmanabhan, AIR 1999 SC 2405 [LNIND 1999 SC 585] : 1999 Cr LJ",
3696 .,
"348. P T Abdul Rahiman v State of Kerala, 2013 Cr LJ 893 (Ker).",
"349. Madan Mohan Abbot v State of Punjab, AIR 2008 SC 1969 [LNIND 2008 SC 755] : (2008) 4",
SCC 582; Now section 406 is made compoundable irrespective of the amount involved in the,
case by the Amendment Act 5 of 2009.,
"350. Vijay Kumar v Sunita, 2000 Cr LJ 4116 (MP).",
"351. Suryalakshmi Cotton Mills Ltd v Rajvir Industries Ltd, (2008) 13 SCC 678 [LNIND 2008 SC",
36] : AIR 2008 SC 1683 [LNIND 2008 SC 36].,
"352. Sneh Lata v Swastika Agro Industrial Corp, 2001 Cr LJ 4432 (P&H).",
THE INDIAN PENAL CODE,
CHAPTER XVII OF OFFENCES AGAINST PROPERTY,
Of Theft,
Of Criminal Breach of Trust,
"[s 407] Criminal breach of trust by carrier, etc.",
"Whoever, being entrusted with property as a carrier,1 wharfinger or warehouse-keeper,",
"commits criminal breach of trust in respect of such property, shall be punished with",
"imprisonment of either description for a term which may extend to seven years, and",
shall also be liable to fine.,
COMMENT—,
"Those who receive property under a contract, express or implied, to carry it or to keep it",
in safe custody are punishable under this section for a criminal breach of trust with,
respect to such property.353.,
1. 'Carrier'.—A carrier is a person who undertakes to transport the goods of other,
persons from one place to another for hire.354. It is clear that the expression 'carrier' in,
"s.407 IPC, 1860 includes all types of carriers, including a common carrier or a private",
carrier.355.,
[s 407.1] Jurisdiction.—,
Where the accused was entrusted with the carriage of a quantity of coffee from an,
"estate in Mysore to a firm of merchants in Mangalore, and a portion of the goods was",
abstracted and there was no evidence as to when or where such abstraction took,
"place, it was held that the Magistrate at Mangalore had jurisdiction to try the accused",
as there was failure to deliver the goods at Mangalore in accordance with the terms of,
entrustment.356.,
"Where there was misappropriation of goods entrusted for delivery, the Court said that",
"the Courts at both the places, namely the place of entrustment and place of delivery,",
would have jurisdiction.357.,
"353. The section does not apply to a custodian of goods under the Essential Commodities Act,",
"1955 for violation of certain clauses storage of licence. Pramod Kumar Nayak v State of Orissa,",
"1989 Cr LJ 1041 (Ori). Surinder Arora v Durga Das, 1988 Cr LJ 1645 , nor to company officers for",
"violation of Gratuity Act, 1972.",
"354. Wharton, 14th Edn p. 164.",
"355. Kanhayalal Baid v RajKumar Agarval, 1981 Cr LJ. 824 .",
"356. Public Prosecutor v Podimonu Beary, (1928) 52 Mad 61.",
"357. Jijo v State of Karnataka, 2003 Cr LJ 256 (Kant).",
THE INDIAN PENAL CODE,
CHAPTER XVII OF OFFENCES AGAINST PROPERTY,
Of Theft,
Of Criminal Breach of Trust,
[s 408] Criminal breach of trust by clerk or servant.,
"Whoever, being a clerk1 or servant2 or employed as a clerk or servant,3 and being in",
"any manner entrusted in such capacity with property, or with any dominion over",
"property, commits criminal breach of trust in respect of that property, shall be",
punished with imprisonment of either description for a term which may extend to,
"seven years, and shall also be liable to fine.",
COMMENT—,
Section 381 punishes theft by a clerk or a servant. This section inflicts enhanced,
punishment on such a person for criminal breach of trust. The property must have been,
entrusted to the accused in his capacity as a clerk or a servant. A clerk or a servant,
who takes his master's property is punishable for theft.,
"1. 'Clerk'.—A clerk in modern usage means a writer in an office, public or private, either",
for keeping accounts or entering minutes.,
2. 'Servant'.—Master and servant—a relation whereby a person calls in the assistance,
"of others, where his own skill and labour are not sufficient to carry out his own",
business or purpose.358. A servant acts under the direct control and supervision of the,
master and is bound to conform to all reasonable orders given in the course of his,
work.359.,
3. 'Employed as a clerk or servant'.—Where the accused employee dishonestly,
misappropriated money entrusted with him and left the service and there is no,
documentary evidence except extra-judicial confession of accused Court held that,
accused is entitled to acquittal.360. Where a person sent his salesman with a letter to,
"fetch Rs. 10,000 from his residence and he, instead of returning, slipped away with the",
"money, it was held that the fact that he absconded for a number of days clearly",
established his intention of causing wrongful gain for himself.361.,
"In the prosecution of an employee under this section, the original account books were",
"destroyed after the matter was decided by the sessions' judge, so that it was",
impossible for the appellate Court to verify the correctness of the questionable entries,
"and the other evidence was of suspicious nature, the Court had no choice but to acquit",
the accused.362. The Court relied upon its own earlier decision363. where it was,
"observed: ""The appellate court and the revisional court are entitled, while scrutinising",
"the case against the accused, to have complete material before it on which the",
prosecution relies for proving the case against the accused persons. In the present,
"case, to deprive this court of the benefit of looking at the entries, in a serious infirmity",
"which must be held fatal to the prosecution case.""364.",
[s 408.1] Branch manager of transport company.—,
The accused was a branch manager of a transport company. He delivered a,
consignment to the co-accused on his promise to deposit consignee copy inspite of,
specific instructions from the head office not to deliver the consignment without,
receiving the consignee copy. It was held that the conduct of the accused was prima,
facie dishonest and he was properly convicted under section 408.365.,
[s 408.2] Employer.—Directors of company.—,
Criminal proceedings were launched against the employer for default in payment of,
contribution to the Employees State Insurance. It was held that the expression,
"""employer"" did not include directors.366.",
"358. Wharton, 14th Edn, p 641.",
"359. Chandi Prasad, (1955) 2 SCR 1035 [LNIND 1955 SC 108] : AIR 1955 SC 149 .",
"360. Raghunath Dhondu Vani v Ilahi Babulal Mujavar, 2012 Cr LJ 1345 (Bom); Mancheswar",
"Service Co-op Society Ltd v Anant Narayan Mishra, 2003 Cr LJ 4390 (Ori).",
"361. Harish Chandra Singh v State of Orissa, (1995) 1 Cr LJ 602 (Ori), the offence under the",
section was made out.,
"362. Makimuddin v State, 1991 Cr LJ 2903 (Del).",
"363. Mohd. Ibrahim v State, AIR 1969 (Del) 315 [LNIND 1968 DEL 115] : 1969 Cr LJ 1377 .",
"364. Citing Lala Ram v State, 1988 Chand Cr C 446 : 1989 Cr LJ 572 , stressing the duty of the",
"prosecution under sections 451-452, Cr PC to preserve the evidence.",
"365. Banwarilal Agrawal v A Suryanarayan, 1994 Cr LJ 370 .",
"366. Employees State Insurance Corpn. v SK Agarwal, AIR 1998 SC 2676 : 1998 Cr LJ 4027 .",
THE INDIAN PENAL CODE,
CHAPTER XVII OF OFFENCES AGAINST PROPERTY,
Of Theft,
Of Criminal Breach of Trust,
"[s 409] Criminal breach of trust by public servant, or by banker, merchant or",
agent.,
"Whoever, being in any manner entrusted with property, or with any dominion over",
"property in his capacity of a public servant1 or in the way of his business as a banker,2",
"merchant,3 factor,4 broker,5 attorney6 or agent,7 commits criminal breach of trust in",
"respect of that property, shall be punished with 367.[imprisonment for life], or with",
"imprisonment of either description for a term which may extend to ten years, and",
shall also be liable to fine.,
COMMENT—,
"This section classes together public servants, bankers, merchants, factors, brokers,",
attorneys and agents. As a rule the duties of such persons are of a highly confidential,
"character, involving great powers of control over the property entrusted to them; and a",
breach of trust by such persons may often induce serious public and private calamity.,
[s 409.1] Ingredients.—,
"In order to sustain conviction under section 409, IPC, 1860, two ingredients are to be",
"proved; namely, (i) the accused, a public servant or a banker or agent was entrusted",
with the property of which he is duty bound to account for; and (ii) the accused has,
committed criminal breach of trust. What amounts to criminal breach of trust is,
"provided under section 405, IPC, 1860. The basic requirement to bring home the",
accusations under section 405 are the requirements to prove conjointly (i) entrustment,
"and (ii) whether the accused was actuated by dishonest intention or not,",
misappropriated it or converted it to his own use to the detriment of the persons who,
entrusted it.368.,
Merely because the accused allegedly kept the amount in defiance of the official,
"instruction, it cannot be an incriminating circumstance to arrive at a conclusion that he",
has committed the breach of trust. It is a settled position of law that suspicion,
howsoever grave cannot take the place of proof.369.,
The section cannot be construed as implying that any head of an office that is,
negligent in seeing that the rules about remitting money to the treasury are observed is,
ipso facto guilty of criminal breach of trust; but something more than that is required to,
bring home the dishonest intention. There should be some indication which justifies a,
finding that the accused definitely had the intention of wrongfully keeping Government,
out of the moneys.370. Subjecting to a civil liability would thus attract one of the,
"ingredients of criminal breach of trust. There cannot be, however, any doubt",
whatsoever that a mere error of judgment would not attract the penal provision,
"contained in section 409 of the IPC, 1860.371. the fact that the accused puts back the",
"money,372. or promises to do so,373. does not wipe out the offence or absolve him from",
liability. Where a post-master misappropriated the money entrusted to him but paid,
"back the whole amount before being challenged, his acquittal on this ground was held",
to be wrong.374. But the Courts do take that fact into account as a mitigating factor,
and would consider light punishment as sufficient to meet the ends of justice.375.,
Where certain articles disappeared from an open godown which was being watched by,
"a Chowkidar (watchman), it was held that the over-all incharge overseer could not be",
held liable under the section unless there was the proof that the articles disappeared,
because of his doings or non-doings.376.,
The offence under the section requires criminal intent or mens rea. Where in the matter,
"of post office deposit accounts, all that was proved showed that there was negligence",
"in maintaining them, the Court said that it could be a fit case for departmental",
proceedings but not proceedings under section 409 because the intention to,
misappropriate the proceeds of the accounts was not in evidence.377.,
[s 409.2] Property of Government company.—,
The property of a Government company was purchased by a firm of which the accused,
was a partner. He was the CM of the company. The CM or the Minister was not shown,
to have dominion over the property of the company. The relationship between the CM,
and the company was not shown to be of trustee and fiduciary. It was held that the,
ingredients of the section were not satisfied.378. The complaint does not contain the,
"averment that Rs.5 lakhs was entrusted to the appellant, either in his personal capacity",
or as the Chairman of Maharashtra State Electricity Board and that he misappropriated,
it for his own use. The said amount was deposited by the complainant company with,
MSEB and there is nothing in the complaint which may even remotely suggest that the,
complainant had entrusted any property to appellant or that the appellant had,
"dominion over the said money of the complainant, which was converted by him to his",
"own use, so as to satisfy the ingredients of section 405 IPC, 1860. Proceedings",
quashed.379.,
[s 409.3] Prosecution against company.—,
"Since, the majority of the Constitution Bench ruled in Standard Chartered Bank v",
Directorate of Enforcement.380. That the company can be prosecuted even in a case,
"where the Court can impose substantive sentence as also fine, and in such case only",
fine can be imposed on the corporate body.381.,
[s 409.4] Ownership right in films.—,
In an agreement for film production the terms stated that the rights in the negative of,
the film and the right of distribution for exhibition were to be vested in the complainant.,
"The accused, the other party, departed from the terms and exhibited the film publicly",
without consent of the complainant. It was held that the accused was guilty of the,
offence of breach of trust.382.,
[s 409.5] Temporary misappropriation.—,
The allegation is that while he was working as a Lower Division Clerk in the Office of,
"the Deputy Superintendent of Police, the accused had temporarily misappropriated an",
"amount of Rs. 1,839. Admittedly, the sum had been deposited in the post office before",
"the due date and that no loss had been caused to the Department, even if it is assumed",
"that a false entry had been made in the record. Offence alleged under IPC, 1860 against",
the appellant are trivial in nature and have caused no harm and in fact no offences in,
"the eye of law. The benefit of section 95 IPC, 1860 is available to the appellant.383.",
"1. 'In his capacity of a public servant'.—Persons like public servants, bankers, etc., who",
are made liable under the section occupy a position of highly confidential nature,
involving great power of control over property entrusted to them. Breach of trust by,
such persons may result in serious public or private calamity. High morality is expected,
from such persons. They are supposed to discharge their duties honestly.384. Where a,
police dog handler had taken a sum of money by way of travelling and daily allowance,
"(TA, DA), but went on to his native place on unauthorized absence and returned the",
"money on coming back, it was held that he did not use the money for the official",
"purpose and though the diversion was temporary, it constituted an offence under the",
section. The trial Court convicted him. It was held that there was no scope for,
interference in the judgment of the trial Court.385.,
2. 'Banker'.—A banker is one who receives money to be drawn out again as the owner,
"has occasion for it, the customer being lender, and the banker borrower, with the",
superadded obligation of honouring the customer's cheques up to the amount of the,
money received and still in the banker's hands.386. The word 'banker' includes a cashier,
"or shroff.387. In ANZ Grindlays Bank plc v Shipping and Clearing (Agents) Pvt Ltd,388. it",
was held that relation between the bank and its depositors is that of debtor and,
creditor but that the relation of trust can be created under special circumstances.,
"Where the principal debtor did not repay the bank loan, the bank as creditor can adjust",
it at the maturity of the fixed deposit receipts deposited by the guarantor with the bank,
"as security, though the debt became barred by limitation at the time of maturity of the",
said fixed deposit receipts. Such adjustment would not amount to offences punishable,
"under sections 109, 114 and 409 IPC, 1860.389. Bank officials who allowed advance",
credits on banker's cheques to a customer in violation of Departmental instructions,
acted in violation of direction of law. The officials had dominion over the money,
belonging to the bank and they dishonestly used that money for conferring a benefit on,
the customer. They were held guilty of the offence under the section.390.,
[s 409.6] Securities Scam.—,
The National Housing Bank cannot advance loans to anybody except housing finance,
"institutions, scheduled banks and statutory slum clearance bodies. The advancement",
"of any loan to any individual is an offence under National Housing Bank Act, 1987.",
Allegation of advancement of loan to Harshad Mehta by NHB under the disguise of a,
call money transaction was held illegal. If as result of that illegal transaction a private,
person who was not expected to reap the fruit of 'call money' was allowed to retain the,
"same for a period to make an unlawful gain therefrom, offence of criminal breach of",
trust must be held to be have been committed.391.,
3. 'Merchant'.—A merchant is one who traffics to remote countries; also any one,
dealing in the purchase and sale of goods.392. A failure on the part of persons,
responsible to refund the share application money when it becomes refundable,
"because of the stock exchange refusal to approve the prospectus, has been taken to be",
a misappropriation by a merchant.393.,
4. 'Factor'.—Is a substitute in mercantile affairs; an agent employed to sell goods or,
"merchandise consigned or delivered to him by or for his principal, for a compensation",
commonly called factorage or commission.394. Complainant took loan from company,
against shares of complainant. Shares were not returned to him after repayment of,
"loan. Court below has found that the charge under section 409 was tenable since,",
"though the accused were not bankers or the public servants, they would fit in the",
"category of factor. The ""factor"" has been defined in Law Lexicon as ""A factor is a",
"mercantile agent who, in the customary course of his business as such agent, is",
"entrusted with the possession or control of goods, wares, or merchandise for sale on",
"commission"". An agent employed to sell goods or merchandise consigned or delivered",
"to him, by or for his principal, for compensation commonly called ""factorage"" or",
"""commission"". The Bombay High Court held that it cannot be held that accused",
"directors of company were agent, employed by complainant, to sell goods or",
"merchandise, entrusted to them for compensation called a ""factorage"" or ""commission""",
and the accused were not covered by definition of 'factor' as envisaged under section,
"409 IPC, 1860.395.",
5. 'Broker'.—Is an agent employed to make bargains and contracts between other,
"persons in matters of trade, commerce and navigation, by explaining the intentions of",
"both parties, and negotiating in such a manner as to put those who employ him in a",
condition to treat together personally. More commonly he is an agent employed by one,
party only to make a binding contract with another.396.,
A factor is entrusted with the possession as well as the disposal of property; a broker is,
employed to contract about it without being put in possession.397.,
"6. 'Attorney'.—Is one who is appointed by another to do something in his absence, and",
who has authority to act in the place and turn of him by whom he is delegated.398. The,
"High Court, while dismissing the revision petition, observed that it was possible that the",
appellants were duped by the general power of attorney holder who knew that his,
powers had been revoked but concealed the fact. If there any bona fides in the conduct,
"of the accused person, (by reason of revival of power), such arguments could have",
made at the trial stage. The Court refused to interfere in the judgment.399.,
"7. 'Agent'.—Is a person employed to do any act for another, or to represent another in",
dealings with third persons.400. An agent though bound to exercise his authority in,
accordance with all lawful instructions which may be given to him from time to time by,
his principal is not subject in its exercise to the direct control or supervision of the,
"principal.401. The trustee of a temple is an agent of the deity, and if he misappropriates",
temple jewels he is guilty under this section.402. Where it is a servant's duty to account,
"for and pay over the moneys received by him at stated times, his not doing so wilfully",
amounts to embezzlement.403. The term 'agent' is not restricted to persons who carry,
on the profession of agents. The requirements of this section would be satisfied if the,
person is an agent of another and that other person entrusts him with property or with,
any dominion over property in the course of his duties as an agent. The entrustment,
"must be in connection with his duties as an agent.404. Where the appellant, an agent",
entrusted with the distribution of the rice under the 'Food for Work Scheme' to the,
workers on production of coupons was charged with misappropriation of 67.65,
"quintals of rice, the evidence proves that there was entrustment of property to the",
"accused, Court upheld the conviction.405.",
[s 409.7] Commission agent.—,
The accused was appointed as commission agent. Certain accounts were found to be,
outstanding against the accused. The Court said that it was a dispute between a,
principal and his agent of civil nature. The agent should not be harassed for such a,
dispute by resort to criminal proceedings.406.,
[s 409.8] Minister.—,
"Accused, the Minister for electricity and higher officials of Electricity Board alleged to",
have awarded contract at a very high and exorbitant rate with special conditions having,
"heavy financial implications, by reducing the retention and security amount and by",
allowing the contractor to return only fifty per cent of the empty cement bags. It is,
found that accused persons have abused their official positions. Supreme Court set,
aside the order of acquittal and convicted the accused.407.,
[s 409.9] Independent contractor.—,
An independent contractor was entrusted with a specific quantity of steel for purposes,
of fabrication and erection of trolley. He fraudulently disposed of the steel contrary to,
the terms on which possession was handed over to him. The Court said that he could,
"be treated as a trustee for the purposes of appropriate use of steel, in view of the",
decision of the Supreme Court in Somnath v State of Rajasthan.408. He was guilty of,
criminal breach of trust and liable to be punished under section.409.,
[s 409.10] Insurance agent.—,
Where an agent of the Life Insurance Corporation collected the premium amount from,
"the policy holder but did not deposit it with the corporation, his conviction for",
misappropriation was held to be proper.410.,
[s 409.11] Buyer of goods.—,
Goods were delivered to a buyer in a sales transaction in the ordinary course of,
business and he became the owner also because the vesting of property was not,
linked with payment. It was held that he could not be held liable for misappropriating,
"his own property though his cheque, which was issued for payment of price afterwards,",
bounced.411. Where the buyer refused to accept the shipment on premise that on a,
random checking too many defects were found in the garments and complaint was,
"filed to recover the dues, Supreme Court held that the dispute between the parties is",
civil in nature.412.,
"[s 409.12] Entrustment.—""",
"Entrustment"" being a necessary part of the offence, where it is not proved, no offence",
arises under this section.413. It is the settled law that mere proof of entries in the books,
"of account, unsupported by any evidence of receipt, is not alone sufficient to fasten the",
accused with the offence of criminal breach of trust.414. An Assistant Engineer was,
charged for criminal breach of trust for misappropriating Govt. Funds. It was found that,
there was no entrustment of funds to the accused public servant. It was held that,
"question of misappropriation of funds does not arise.415. Accordingly, a school",
inspector withdrawing money against false pay bills and misappropriating the entire,
amount was held to be punishable for misappropriation and cheating but not of,
criminal breach of trust because the amount withdrawn was not entrusted to him.416.,
Where a postal delivery agent was given an insured cover supposed to contain Rs.,
"1000 and on delivery to the addressee, who opened the cover in the presence of the",
"agent, it was found that it contained blank papers, the agent was held not liable under",
the section. The prosecution did not prove the most vital fact that at the time of,
"handing over to the agent, the cover did contain the amount in question.417. Where a",
quantity of diesel oil which was delivered to a junior officer under his signature and he,
"embezzled it, his senior was not allowed to be prosecuted. There was no entrustment",
to him. The fact that he exercised authority over the junior did not establish his,
"possession. The conviction of the senior was set aside, while that of the junior was",
upheld.418. Where no account was produced as to the quantity of yarn entrusted and,
"how much was returned after making the finished product, it was held that there was",
no infirmity in the order of acquittal.419.,
[s 409.13] President of Co-operative Society.—,
It has been held that the President of a Co-operative Society is not a public servant.,
Dishonest retention of money of the society by the President was not an offence under,
section 409. But section 406 was attracted.420. Secretary of co-operative society is not,
"a public servant within meaning of section 21 IPC, 1860 r/w.s. 8 of W.B. Co-operative",
"Societies Act, and no previous sanction is necessary for prosecuting him for offence",
"under section 409, IPC, 1860.421.",
[s 409.14] Burden of proof.—,
The prosecution has to prove that a public servant was entrusted with property which,
he was duty bound to account for and that he misappropriated the property. Where the,
"fact of entrustment has been admitted or proved, the burden is then upon him to show",
that the property was applied to the purpose for which it was entrusted to him.422.,
[s 409.15] Amount repaid.—,
The accused persons acting through directors of company in concert with the,
Chartered Accountants and some other persons hatched a criminal conspiracy and,
executed it by forging and fabricating a number of documents in order to support their,
claim to avail hire purchase loan form the bank. The accused had not only duped the,
"bank, they had also availed of depreciation on the machinery, which was never",
"purchased and used by them, causing loss to the exchequer, a serious economic",
offence against the society. Supreme Court had declined to quash the proceedings.,
"Merely because the dues of the bank have been paid up, the appellant cannot be",
exonerated from the criminal liability.423.,
[s 409.16] CASES.,
Even a mistaken receipt of money by a public servant in official capacity does create an,
obligation for the public servant to render an account of the money so received. All that,
is required is entrustment or acquisition of dominion over property in the capacity of a,
"public servant. Thus where the accused, an official of the Indian Unit of Hindustan",
Insurance Society who had no authority to collect premiums from Pakistani policy-,
"holders, did in fact represent to them that they could pay their premiums to him and",
also issued receipts purporting to act in his official capacity and thereafter,
"misappropriated the money after making false entries in the relevant register, it was",
"held that he was guilty under section 409, IPC, 1860.424. It should, however, be",
remembered that the prosecution has to prove that the public servant has acted,
dishonestly in regard to property entrusted to him.425.,
[s 409.17] Section 420 and 409.—Distinction.—,
"In 'criminal breach of trust', an accused comes into possession of a property or",
"acquires dominion over a property honestly and bona fide, but he develops dishonest",
"intention subsequent to the taking possession of, or subsequent to having acquired the",
"dominion over, the property and, having developed such dishonest intention, he",
dishonestly misappropriates or converts to his own use the property or dishonestly,
uses or disposes of the property in violation of any direction of law prescribing the,
"mode in which such trust is to be discharged, or of any legal contract, express or",
"implied, which he has made touching the discharge of such trust, or wilfully suffers any",
"other person so to do. Thus, in 'criminal breach of trust', the intention of the accused",
"cannot be dishonest or mala fide at the time, when he comes into possession of the",
"property or comes to acquire dominion over the property; but, having come into",
"possession of, or having acquired dominion over, the property, the accused develops",
"dishonest intention and actuated by such mens rea, he converts to his own use the",
property or dishonestly uses or disposes of the property in violation of any direction of,
"law prescribing the mode in which such trust is to be discharged, or of any legal",
"contract, express or implied, which he has made touching the discharge of such trust,",
"or wilfully suffers any other person so to do. Contrary to what happens in ""criminal",
"breach of trust"", the intention of the accused, in a case or ""cheating"", is dishonest from",
"the very commencement of the transaction. There is really no consent by the person,",
who is intentionally induced by deception to deliver the property or allow any person to,
"retain the property or is intentionally induced, as a result of deception, to do or omit to",
"do anything, which he would not do or omit to do if he were not so deceived, and which",
"act or omission causes or is likely to cause damage or harm to that person in body,",
"mind, reputation or property. In short, thus, while in ""criminal breach of trust"", the",
accused comes into possession of the property without dishonest intention and,
develops dishonest intention subsequent to his coming into possession of the,
"property, the offence of 'cheating' is one, wherein the accused has dishonest intention",
from the very commencement of the transaction.426.,
"[s 409.18] Section 409 and section 477A IPC, 1860.—",
"Contention of the accused is that scheme of sections 408 and 409 IPC, 1860 goes to",
show that distinct offences have been provided respectively for the clerks or servants,
and for the bankers and the present petitioner has been charged for the offence under,
"section 409 IPC, 1860 as he is a banker, but at the same time, he has been convicted",
"for the offence under section 477A IPC, 1860, where bankers have not been included in",
"the description of offence under section 477A IPC, 1860 and conviction under sections",
"477A and 409 IPC, 1860 cannot go hand to hand. The accused has been charged for",
"the offence under section 409 IPC, 1860 as he was public servant at the relevant time",
being a Postal Assistant and his contention that he was a banker is misplaced. The,
accused has not been charged as a banker.427.,
[s 409.19] Director.—,
A director of a company is not only an agent but also a trustee of the assets of the,
company which come to his hand. Thus having dominion and control over property he,
can come within the mischief of this section if he dishonestly misappropriates that,
property to his own use.428. The manager of a rice mill was held liable under the,
section for causing disappearance of a quantity of paddy from a huge stock of the,
material entrusted to him.429.,
[s 409.20] Directors of Company.—Vicarious liability.—,
It is to be noted that the concept of 'vicarious liability' is unknown to criminal law. As,
"observed earlier, there is no specific allegation made against any person but the",
members of the board and senior executives are joined as the persons looking after the,
management and business of the appellant Company.430. The Penal Code does not,
contain any provision for attaching vicarious liability on the part of the Managing,
Director or the Directors of the Company when the accused is the Company. The,
"learned Magistrate failed to pose unto himself the correct question, viz., as to whether",
"the complaint petition, even if given face value and taken to be correct in its entirety,",
would lead to the conclusion that the respondents herein were personally liable for any,
offence. The Bank is a body corporate. Vicarious liability of the Managing Director and,
Director would arise provided any provision exists in that behalf in the Statute. Statutes,
indisputably must contain provision fixing such vicarious liabilities. Even for the said,
"purpose, it is obligatory on the part of the complainant to make requisite allegations",
which would attract the provisions constituting vicarious liability.431. In the case of,
"Punjab National Bank v Surendra Prasad Sinha,432. a complaint was lodged by the",
"complainant for prosecution under sections 409, 109 and 114, IPC, 1860 against the",
"Chairman, the Managing Director of the Bank and a host of officers Since the principal",
"debtor defaulted in payment of debt, the Branch Manager of the bank on maturity of the",
said fixed deposit adjusted a part of the amount against the said loan. The complainant,
"alleged that the debt became barred by limitation and, therefore, the liability of the",
"guarantors also stood extinguished. It was, therefore, alleged that the officers of the",
bank criminally embezzled the said amount with dishonest intention to save,
themselves from financial obligation. The Magistrate without adverting whether the,
"allegations in the complaint prima facie make out an offence charged for, in a",
"mechanical manner, issued the process against all the accused persons. The High",
Court refused to quash the complaint and the matter finally came to Supreme Court.,
"The Supreme Court allowed the appeal, quashed the proceedings and held that the",
"complaint was laid impleading the Chairman, the Managing Director of the Bank by",
name and a host of officers. There lies responsibility and duty on the Magistracy to find,
whether the concerned accused should be legally responsible for the offence charged,
for. Only on satisfying that the law casts liability or creates offence against the juristic,
person or the persons impleaded then only process would be issued.,
[s 409.21] Society.—,
The accused was in charge of a society's affairs. Shortage of funds was detected. It,
was held that the fact that the accused agreed to make good the shortage at a later,
point of time could not be treated as an admission of guilt on his part. Ingredients of,
misappropriation were not made out. The mere discrepancy in amount was not,
sufficient to sustain the conviction.433.,
Prosecution has to prove entrustment and not how property was dealt with.—The,
prosecution has to show that the property in question was entrusted to the accused. It,
is then for the accused to show how he dealt with the property. 434.,
[s 409.22] Previous sanction.—,
In a prosecution against the Vice-chancellor of a University where section 50(2) of the,
"1994 University Act, 1904 says no prosecution will lie against the appellant without",
"previous sanction of the Syndicate, prosecution cannot be launched in the absence of",
the previous sanction of the Syndicate.435. As far as the offence of criminal conspiracy,
"punishable under section 120-B, read with section 409 of the IPC, 1860 is concerned",
"and also section 5(2) of the Prevention of Corruption Act, 1988, are concerned they",
"cannot be said to be of the nature mentioned in section 197 of the Cr PC, 1973.436.",
[s 409.23] Punishment.—,
"The accused, working as an assistant accountant in a company, received on behalf of",
the company certain recoveries from a firm but did not credit them in the account of,
the said firm. He was found guilty and was convicted and sentenced to undergo RI of 1,
and a half years under section 409 and RI of 1 and a half years under section 477-A.,
The Apex Court upheld the conviction but considering time factor and age of the,
"accused, the sentence was reduced to six months, RI under each count.437.",
"The accused, a postmaster, was convicted under this section. The offence happened",
15 years ago. He deposited the misappropriated amount with interest even before the,
"FIR was filed. He was punished only with fine of Rs. 4,000 without any",
imprisonment.438.,
[s 409.24] Moral turpitude.—,
"Undoubtedly, the embezzlement of Rs.5000 by the appellant, for which he had been",
"convicted under section 409 IPC, 1860, was an offence involving moral turpitude.439.",
[s 409.25] Conviction of Employee under section 409.—will release on,
probation remove the disqualification.—,
"Once a Criminal Court grants a delinquent employee the benefit of P.O. Act, 1958, its",
order does not have any bearing so far as the service of such employee is concerned.,
"The word ""disqualification"" in section 12 of the Act 1958 provides that such a person",
shall not stand disqualified for the purposes of other Acts like the Representation of,
"the People Act, 1950 etc. The conviction in a criminal case is one part of the case and",
"release on probation is another. Therefore, grant of benefit of the provisions of Act",
"1958, only enables the delinquent not to undergo the sentence on showing his good",
"conduct during the period of probation. In case, after being released, the delinquent",
"commits another offence, benefit of Act 1958 gets terminated and the delinquent can",
"be made liable to undergo the sentence. Therefore, in case of an employee who stands",
"convicted for an offence involving moral turpitude, it is his misconduct that leads to his",
dismissal.440.,
"367. Subs. by Act 26 of 1955, section 117 and Sch, for ""transportation for life"" (w.e.f. 1 January",
1956).,
"368. Sadhupati Nageswara Rao v State of Andhra Pradesh, (2012) 8 SCC 547 [LNIND 2012 SC",
461] : AIR 2012 SC 3242 [LNIND 2012 SC 461] .,
"369. Sachindra Das v The State of Tripura, 2016 Cr LJ 3908 : 2016 (2) GLT 894 .",
"370. Lala Raoji, (1928) 30 Bom LR 624 . Mohan Tiwari v State of Arunachal Pradesh, 1992 Cr LJ",
"737 (Gau), unauthorised extraction of timber by the contractor from a forest officer in",
"connivance with the officials concerned, prima facie evidence of guilt.",
"371. Sudhir Shantilal Mehta v CBI, (2009) 8 SCC 1 [LNIND 2009 SC 1652] : (2009) 3 SCC (Cr)",
646.,
"372. Vishwa Nath v State of J&K, AIR 1983 SC 174 : 1983 Cr LJ 231 : (1983) 1 SCC 215 .",
"373. Vijay Digambar Lanjekar v State of Maharashtra, 1991 SCC (Cr) 841 : 1991 Supp (2) SCC 8,",
"the court reduced the sentence of 2 years' RI to the period already undergone. Where, on the",
"other hand, credit sale was in vogue and the amounts involved stood deposited before CID",
"probe, the conviction was not sustained. Narendra Pratap Narain Singh v State of UP, AIR 1991",
SC 1394 [LNIND 1991 SC 186] : 1991 Cr LJ 1816 .,
"374. State of MP v Prempal, 1991 Cr LJ 2878 . The court followed Vishwanath v State of J & K,",
AIR 1983 SC 174 : 1983 Cr LJ 231 where the principle laid down was that a public servant,
"entrusted with Government money misappropriates that amount for personal use, refund of that",
"amount, after the act of defalcation is discovered, does not absolve the accused of the offence.",
"375. See Ram Mohan Saxena v State of MP, 1977 (II) MPWN 377; Bahadur Singh v State of MP,",
"(1976) JLJSN 120; Narbada Singh Chouhan v State of MP, (1971) JLJ SN 11 and State v Autar",
"Singh, (1966) JLJ SN 99.",
"376. Janeshwar Das Agarwal v State of UP, AIR 1981 SC 1646 : 1981 All LJ 887 : (1981) 18 All",
CC 151 : (1981) 3 SCC 10 .,
"377. Chandraiah v State of AP, (2003) 12 SCC 670 : AIR 2004 SC 252 : 2004 Cr LJ 365 .",
"378. R Sai Bharathi v J Jayalalitha, (2004) 2 SCC 9 [LNIND 2003 SC 1023] : AIR 2004 SC 692",
[LNIND 2003 SC 1023] : 2004 Cr LJ 286 .,
"379. Asoke Basak v State of Maharashtra, (2010) 10 SCC 660 [LNIND 2010 SC 1699] : (2011) 1",
SCC(Cr) 85.,
"380. Standard Chartered Bank v Directorate of Enforcement, (2005) 4 SCC 530 [LNIND 2005 SC",
476] .,
"381. CBI v Blue Sky Tie-up Pvt Ltd, 2012 Cr LJ 1216 : AIR 2012 SC (Supp) 613.",
"382. Krishna Rao Keshav v State of UP, 1997 Cr LJ 1129 (All).",
"383. NK Illiyas v State of Kerala, 2012 CR LJ 2418 : AIR 2012 SC 3790 [LNIND 2011 SC 646] ; R",
"Venkatkrishnan v CBI, (2009) 11 SCC 737 [LNIND 2009 SC 1653] . It made no difference to the",
criminal liability that the money was quickly recovered and departmental action was taken,
against bank officials.,
"384. R Venkatkrishnan v CBI, (2009) 11 SCC 737 [LNIND 2009 SC 1653] .",
"385. Shabbir Ahmed Sherkhan v State of Maharashtra, (2009) 5 SCC 22 [LNIND 2009 SC 621] :",
(2009) 1 SCC (L&S) 1016 .,
"386. Wharton, 14th Edn, p 109. The relationship of trust can arise between them only under",
"special circumstances. ANZ Grindlays Bank v Shipping and Clearing (Agents) Pvt Ltd, 1992 Cr LJ",
"77 (Cal), paying money after instructions to close account, no cheating. MV Bany v State of TN,",
1989 Cr LJ 667 (Mad).,
"387. Hira Lal, (1907) PR No. 19 of 1908. A bank manager permitting money to be withdrawn",
against false drafts signed by him commits this offence. Adithela Immanuel Raju v State of,
"Orissa, 1992 Cr LJ 243 . The protections and privileges of a banker are not available to persons",
"who are not legally engaged in the banking business. AG Abreham v State of Kerala, 1987 Cr LJ",
"2009 (Ker). Withdrawal of money from Post Office by forging signature, liability made out. State",
"of Orissa v Sapneswar Thappa, 1987 Cr LJ 612 (Ori).",
"388. ANZ Grindlays Bank plc v Shipping and Clearing (Agents) Pvt Ltd, 1992 Cr LJ 77 (Cal).",
"389. Punjab National Bank v Surendra Prasad Sinha, AIR 1992 SC 1815 [LNIND 1992 SC 300] :",
"1992 Cr LJ 2916 ; S Jayaseelan v State of SPF, 2002 Cr LJ 732 (Mad), the cashier received",
"repayment of loan installments, issued receipts and also made entries in the pass book but did",
not show the repayments in the ledger books. Dishonest intention established. Sentence of 2,
"years reduced to 18 months because he had paid back. Bank of Baroda v Samrat Exports, 1998",
"Cr LJ 2773 (Kant), the debit by the bank to the guarantor's account in respect of the sum due",
from the principal borrower was not a dishonest misappropriation. MN Ojha v Alok Kumar,
"Srivastav, (2009) 9 SCC 682 [LNIND 2009 SC 1708] : AIR 2010 SC 201 [LNIND 2009 SC 1708] -",
the averments made in the complaint does not disclose the commission of any offence by the,
appellant or any one of them. Proceedings quashed.,
"390. Sudhir Shantilal Mehta v CBI, (2009) 8 SCC 1 [LNIND 2009 SC 1652] : (2009) 3 SCC (Cr)",
"646; Satyajit Roy v State of Tripura, 2010 Cr LJ 3397 (Gau)- Where the allegation was of Criminal",
"breach of trust by banker, conviction based on an alleged writing of accused without examining",
the hand writing expert is held not proper.,
"391. R Venkatkrishnan v CBI, (2009) 11 SCC 737 [LNIND 2009 SC 1653] : AIR 2010 SC 1812",
[LNIND 2009 SC 1653] .,
"392. Wharton, 14th Edn, p 649.",
"393. Radhey Shyam Khemka v State of Bihar, AIR 1993 SCW 2427 : 1993 Cr LJ 2888 : (1993) 3",
SCC 54 [LNIND 1993 SC 276] .,
"394. Ibid, p. 400.",
"395. Pramod Parmeshwarlal Banka v State of Maharashtra, 2011 Cr LJ 4906 (Bom).",
"396. Ibid, p. 148.",
"397. Stevens v Biller, (1883) 25 Ch D 31 .",
"398. Wharton, 14th Edn, p 95.",
"399. Chaman Lal v State of Punjab, (2008) 11 SCC 721 : AIR 2009 SC 2972 [LNIND 2009 SC 721]",
.,
400. The Indian Contract Act (IX of 1872) section 182.,
"401. Chandi Prasad, (1955) 2 SCR 1035 [LNIND 1955 SC 108] .",
"402. Muthusami Pillai, (1895) 1 Weir 432.",
"403. Chandra Prasad, (1926) 5 Pat 578.",
"404. RK Dalmia, AIR 1962 SC 1821 [LNIND 1962 SC 146] : (1962) 2 Cr LJ 805 . A partner of a",
firm opening an account in the firm name showing himself as a proprietor and depositing firm,
"cheques into it and withdrawing money from it, does not commit an offence under this section",
"or section 419. Tapan Kumar Mitra v Manick Lal Dey, 1987 Cr LJ 1483 (Cal).",
"405. Sadhupati Nageswara Rao v State of Andhra Pradesh, (2012) 8 SCC 547 [LNIND 2012 SC",
461] : AIR 2012 SC 3242 [LNIND 2012 SC 461] .,
"406. SK Agarwal v Manoj Dalmia, 2001 Cr LJ 3343 (All).",
"407. V S Achuthanandan v R Balakrishna Pillai, AIR 2011 SC 1037 [LNIND 2011 SC 165] : 2011",
(3) SCC 317 [LNIND 2011 SC 165] .,
"408. Somnath v State of Rajasthan, AIR 1972 SC 1490 [LNIND 1972 SC 112] : 1972 Cr LJ 897",
"409. Sadashiva Rao v State of AP, 2000 Cr LJ 2110 .",
"410. Suresh Tolani v State of Rajasthan, 2001 Cr LJ 1959 (Raj).",
"411. HICEL Pharma Ltd v State of AP, 2000 Cr LJ 2566 (AP).",
"412. Sharon Michael v State of Tamil Nadu, (2009) 3 SCC 375 [LNIND 2008 SC 2506] : (2009) 2",
SCC (Cr) 103.,
"413. Roshan Lal Raina v State of J & K, AIR 1983 SC 631 : 1983 Cr LJ 975 : 1983 2 SCC 429 . See",
"also Jat Ram v State of HP, 1991 Cr LJ 1435 , false wage bill, not properly proved.",
"414. State of Orissa v Gopinath Panigrahi, 1995 Cr LJ 4095 (Ori). Todar Singh Premi v State of UP,",
"1992 Cr LJ 1724 (All), no proof of entrustment of money to the accused Government service.",
"Prafulla Kumar Panda v State of Orissa, 1994 Cr LJ 3818 (Ori), no proof of entrustment of",
"cheque, the only cheque produced was of personal payment, no offence.",
"415. Bansidhar Swain v State, 1993 Cr LJ 830 (Ori).",
"416. Shankerlal Vishwakarma v State of MP, 1991 Cr LJ 2808 (MP). The Court cited this book at",
p. 2812 to highlight the distinction between Cheating and Criminal Breach of Trust and Criminal,
"Misappropriation. See at p 396 of 26th Edn of 1987 and State of MP v DN Pandya, 1983 MPLJ",
"778 . Jitendra Nath Bose v State of WB, 1991 Cr LJ 922 (Cal), no evidence of entrustment;",
"Government and non-Government property lumped together in charge, held not proper,",
"Baikuntha v Nilamani Bantha, 1991 Cr LJ 59 (Ori), entrustment of cash not proved.",
"417. Fakira Nayak v State of Orissa, 1987 Cr LJ 1479 (Ori).",
"418. Jiwan Dass v State of Haryana, AIR 1999 SC 1301 [LNIND 1999 SC 204] : 1999 Cr LJ 2034 .",
"419. VN Sonal v Nagamanickam, 2001 Cr PC 3428 (Mad).",
"420. Shanmugham v State of TN, 1997 Cr LJ 2042 (Mad).",
"421. Rabindra Nath Bera v State of West Bengal, 2012 CR LJ 913 (Cal).",
"422. Mustafikhan v State of Maharashtra, (2007) 1 SCC 623 [LNIND 2006 SC 1076] .",
"423. Sushil Suri v CBI, (2011) 5 SCC 708 [LNIND 2011 SC 494] : AIR 2011 SC 1713 [LNIND 2011",
"SC 494] ; Nikhil Merchant v Central Bureau of Investigation, (2008) 9 SCC 677 [LNIND 2008 SC",
1660] distinguished.,
"424. S and R, Legal Affairs, West Bengal v SK Roy, 1974 Cr LJ 678 : AIR 1974 SC 794 [LNIND",
1974 SC 35] .,
"425. Sardar Singh, 1977 Cr LJ 1158 : AIR 1977 SC 1766 : (1977) 1 SCC 463 . See also State of",
"Orissa v Gangadhar Pande, 1989 Supp (2) SCC 150 : 1991 SCC (Cr) 389, leniency shown to a",
misappropriating Government servant because of old age and retirement since long. Kulbir,
"Singh v State of Punjab, 1991 Cr LJ 1756 (P&H), embezzlement of stone metal, proceedings",
"instituted after a lapse of 9 yrs., quashed.",
"426. Mahindra and Mahindra Financial Services Ltd v Delta Classic Pvt Ltd, 2010 Cr LJ 4591",
(Bom).,
"427. Vijay Kumar v State of Rajasthan, 2012 Cr LJ 2790 (Raj).",
"428. Shivanarayan, 1980 Cr LJ 388 (SC).",
"429. Narindra Kumar Jain v MP, 1996 Cr LJ 3200 : AIR 1996 SC 2213 .",
"430. Thermax Ltd v K M Johny, 2011 (11) Scale 128 [LNIND 2011 SC 947] : 2011 (13) SCC 412",
"[LNIND 2011 SC 947] ; GHCL Employees Stock Option Trust v India Infoline Ltd, (2013) 4 SCC 505",
[LNIND 2013 SC 232] : AIR 2013 SC 1433 [LNIND 2013 SC 232] - from perusal of order passed,
by the Magistrate it reveals that two witnesses including one of the trustees were examined by,
the complainant but none of them specifically stated as to which of the accused committed,
breach of trust or cheated the complainant except general and bald allegations made therein-,
proceedings quashed.,
"431. Maksud Saiyed v State of Gujarat, 2008 (5) SCC 668 [LNIND 2007 SC 1090] : JT 2007 (11)",
"SC 276 [LNIND 2007 SC 1090] ; Pramod Parmeshwarlal Banka v State of Maharashtra, 2011 Cr LJ",
4906 (Bom).,
"432. Punjab National Bank v Surendra Prasad Sinha, AIR 1992 SC 1815 [LNIND 1992 SC 300] :",
1993 Supp (1) SCC 499,
"433. State of Karnataka v Syed Mehaboob, 2000 Cr LJ 1184 (Kant).",
"434. N Bhargavan Pillai v State of Kerala, AIR 2004 SC 2317 [LNIND 2004 SC 520] : 2004 Cr LJ",
2494 : (2004) 2 KLT 725 .,
"435. R Ramachandran Nair v Deputy Superintendent Vigilance Police, (2011) 4 SCC 395 [LNIND",
2011 SC 319] : (2011) 2 SCC (Cr) 251.,
"436. Raghunath Anant Govilkar v State of Maharashtra, AIR 2008 SC (Supp) 1486; Shreekantiah",
"Ramayya Munipalli v State of Bombay, AIR 1955 SC 287 [LNIND 1954 SC 180] and also Amrik",
"Singh v State of Pepsu, AIR 1955 SC 309 [LNIND 1955 SC 15] ; State of UP v Paras Nath Singh,",
(2009) 6 SCC 372 [LNINDORD 2009 SC 650] : 2009 Cr LJ 3069 .,
"437. Inder Sen Jain v State of Punjab, AIR 1994 SC 1065 : 1994 Cr LJ 1224 . Bachchu Singh v",
"State of Haryana, AIR 1999 SC 2285 [LNIND 1999 SC 1375] : 1999 Cr LJ 3528 , misuse of tax",
"money collected by a Gram Sachiv, he was sentenced to six months RI and fine. He had already",
undergone 4½ months. His sentence was reduced to period already undergone.,
"438. State of HP v Karanvir, 2006 Cr LJ 2917 : AIR 2006 SC 2211 [LNIND 2006 SC 394] : (2006) 5",
SCC 381 [LNIND 2006 SC 394] .,
"439. Sushil Kumar Singhal v Regional Manager, Punjab National Bank, 2010 AIR (SCW) 5119 :",
(2010) 8 SCC 573 [LNIND 2010 SC 730] .,
"440. Sushil Kumar Singhal v Regional Manager, Punjab National Bank, 2010 AIR (SCW) 5119 :",
(2010) 8 SCC 573 [LNIND 2010 SC 730] .,
THE INDIAN PENAL CODE,
CHAPTER XVII OF OFFENCES AGAINST PROPERTY,
Of Theft,
Of the Receiving of Stolen Property,
[s 410] Stolen property.,
"Property, the possession whereof has been transferred by theft, or by extortion, or by",
"robbery, and property which has been criminally misappropriated or in respect of",
"which 441.[***] criminal breach of trust has been committed, is designated as ""stolen",
"property"", 442.[whether the transfer has been made, or the misappropriation or breach",
"of trust has been committed, within or without 443.[India]]. But, if such property",
subsequently comes into the possession of a person legally entitled to the possession,
"thereof, it then ceases to be stolen property.",
"441. The words ""the"" and ""offence of"" rep. by Act 12 of 1891, section 2 and Sch I and Act 8 of",
"1882, section 9, respectively.",
"442. Ins. by Act 8 of 1882, section 9.",
"443. The words ""British India"" have successively been subs. by the A.O. 1948, the A.O. 1950 and",
"Act 3 of 1951, section 3 and Sch (w.e.f. 1 April 1951), to read as above.",
THE INDIAN PENAL CODE,
CHAPTER XVII OF OFFENCES AGAINST PROPERTY,
Of Theft,
Of the Receiving of Stolen Property,
[s 411] Dishonestly receiving stolen property.,
"Whoever dishonestly receives or retains1 any stolen property, knowing or having",
"reason to believe the same to be stolen property,2 shall be punished with",
"imprisonment of either description for a term which may extend to three years, or with",
"fine, or with both.",
State Amendment,
"Tamil Nadu.—The following amendments were made by T.N. Act No. 28 of 1993, section",
2.,
Section 411 of the principal Act shall be renumbered as sub-section (1) of that section,
"and after sub-section (1) as so renumbered, the following sub-section shall be added,",
namely—,
"""(2) Whoever dishonestly receives or retains any idol or icon stolen from any building",
used as a place of worship knowing or having reason to believe the same to be stolen,
"property shall, notwithstanding anything contained in sub-section (1), be punished with",
rigorous imprisonment which shall not be less than two years but which may exceed to,
three years and with fine which shall not be less than two thousand rupees:,
"Provided that the court may, for adequate and special reasons to be mentioned in the",
"judgment, impose a sentence of imprisonment for a term of less than two years.""",
COMMENT—,
Section 410 defines stolen property. A property is stolen for the purpose of this section,
"when its possession is transferred by theft, extortion, robbery, dacoity or criminal",
breach of trust or which was obtained under misappropriation committed whether in,
India or outside. An extended meaning is given to the words 'stolen property' which are,
"used in the four subsequent sections. Not only things which have been stolen, extorted",
or robbed but also things which have been obtained by criminal misappropriation or,
criminal breach of trust are within the meaning assigned to these words. Section 411,
provides punishment to the person who dishonestly receives stolen property. The,
person must have the knowledge that it is a stolen property. This section as also the,
"succeeding sections are directed not against the principal offender, e.g., a thief, robber",
or misappropriator but against the class of persons who trade in stolen articles and are,
"receivers of stolen property. Principal offenders are therefore, outside the scope of this",
section. Accordingly the conviction of the principal offender is also not a prerequisite to,
the conviction of the receiver of stolen property under this section.444.,
[s 411.1] Essential ingredients.—,
(a) Dishonest receipt or retention of stolen property. (b) Knowledge or reason to believe,
at the time of receipt that the property was obtained in the ways specified in the,
section. The offence of dishonest retention of property is almost contemporaneous,
with the offence of dishonestly receiving stolen property. A person who dishonestly,
"receives property and retains it, must obviously continue to retain it. It is the duty of the",
prosecution in order to bring home the guilt of a person under section 411 to prove:,
(1) That the stolen property was in the possession of the accused.,
(2) That some person other than the accused had possession of the property,
before the accused got possession of it and,
(3) That the accused had knowledge that the property was stolen.445. When the field,
"from which the ornaments were recovered was an open one, and accessible to all and",
"sundry, it is difficult to hold positively that the accused was is possession of these",
articles. The fact of recovery by the accused is compatible with the circumstance of,
somebody else having placed the articles there and of the accused somehow acquiring,
"knowledge about their whereabouts and that being so, the fact of discovery cannot be",
regarded as conclusive proof that the accused was in possession of these articles.446.,
"As observed by the Apex Court in the case of N Madhavan v State of Kerala,447. as a",
normal rule after an inquiry or trial when the accused is discharged or acquitted the,
Court ought to restore the property from the person from whose custody it was taken,
"and in a case of conviction, it is the person from whose possession it was stolen, who",
would be entitled to its possession when the property seized is referable to such stolen,
property.,
"1. 'Dishonestly receives or retains'.— To constitute dishonest retention, there must",
"have been a change in the mental element of possession,—possession always",
subsisting animo et facto—from an honest to a dishonest condition of the mind in,
"relation to the thing possessed. Where pursuant to a hire purchase agreement, on the",
"default of the purchaser to pay the instalment amount, the seller of a vehicle",
"repossessed it, it was held that as there was no dishonest intention to retain on his",
"part, the provisions of this section were not attracted.448.",
[s 411.2] Identity of stolen property.—,
Before a conviction can be recorded under this section it must be shown that the,
"property recovered and seized was stolen property. Where, therefore, the identity of the",
"property is not established, there cannot be any conviction under section 411, IPC,",
1860.449.,
2. 'Knowing or having reason to believe the same to be stolen property'.—The offence,
"made punishable is not the receiving of stolen property from any particular person, but",
receiving such property knowing it to be stolen. The word 'believe' is a much stronger,
"word than suspect, and it involves the necessity of showing that the circumstances",
were such that a reasonable man must have felt convinced in his mind that the,
property with which he was dealing must be stolen property.450.,
[s 411.3] Stolen property of the deceased.—,
Where stolen ornaments of the deceased which she had been wearing when she was,
last seen alive are discovered within three days of the murder in pursuance of an,
"information given by the accused and there is no other evidence, the accused can be",
"convicted only under section 411 and not under section 302, IPC, 1860, or section 394,",
"IPC, 1860, as there is nothing to connect him with the murder or the robbery.451.",
[s 411.4] Recent Possession.—,
There is a presumption under the law that where a person is found to be in a recent,
"possession of stolen or robbed articles, he must be the offender himself or must have",
"received them with knowledge. In reference to the meaning of the expression ""recent",
"possession"", the Supreme Court has suggested that no fixed time limit can be laid",
down and each matter must go by its own facts. It varies according to whether the,
property in question in its nature is capable of passing readily from hand to hand. If the,
"goods are not of that kind, even one year may not be too long. In the present case,",
"however, there was no gap of time between the arrest of the accused and the recovery",
"and, hence, the presumption of his guilt.452.",
[s 411.5] Sentencing.—,
Where the period of 12 years had elapsed since the institution of the case and the,
"accused (revision petitioner) remained in jail for ten months, his sentence was reduced",
to the period already undergone. The Court did not interfere in the concurrent finding of,
fact.453.,
[s 411.6] Presumption from possession.—,
A property which was alleged to have been taken by robbery at the point of pistol was,
found in the possession of the accused. While the charge of robbery under section 392,
"failed, that of receiving stolen property became established by reason of the",
"presumption created by section 114 of the Evidence Act, 1872.454. When the",
prosecution established beyond all reasonable doubt that M.O s. 25–27 belonged to,
"the deceased No. 1, were found in the possession of A2, the burden shifts to the",
accused to explain the same under section 114-A of the Evidence Act. If he has not,
"explained the possession of stolen articles, the presumption is that he is receiver of",
stolen property or a thief.455.,
[s 411.7] Probation.—,
The accused was under 21 years of age; has five brothers and sisters; is son of a poor,
"agriculturist and that the stolen articles recovered from him are not so valuable, the",
sentence of imprisonment imposed by the learned appellate Court is set aside and the,
petitioner is directed to be released on probation of good conduct for a period of six,
months.456.,
"444. Mir Naqvi Askari v CBI, (2009) 15 SCC 643 [LNIND 2009 SC 1651] : AIR 2010 SC 528",
[LNIND 2009 SC 1651] .,
"445. Mir Naqvi Askari v CBI, (2009) 15 SCC 643 [LNIND 2009 SC 1651] : AIR 2010 SC 528",
[LNIND 2009 SC 1651] .,
"446. Trimbak v State, AIR 1954 SC 39 : 1954 Cr LJ 335 (SC).",
"447. N Madhavan v State of Kerala, AIR 1979 SC 1829 [LNIND 1979 SC 321] .",
"448. Rajendra Kumar, 1969 Cr LJ 243 . Sheonath Bhar v State of UP, 1990 Cr LJ 1423 (All), where",
dishonest retention of stolen watch was proved and fine Rs. 125 only was imposed because a,
long time had passed and the accused had already remained in jail for a month. Syed Basha v,
"State of Karnataka, 2001 Cr LJ 1813 (Kant), the prosecution failed to prove that the accused was",
in possession of sandalwood billets stolen by someone else. The presumption under section 84,
"of the Karnataka Forest Act, 1963 regarding ownership of sandalwood trees was held to be not",
"applicable to sandalwood billets. Jitendra Kumar Agarwal v State of Bihar, 2001 Cr LJ 3834",
"(Jhar), charge of receiving ration material not quashed because wheat was found in the",
"compound of the petitioner. Karni Singh v State of Rajasthan, 1999 Cr LJ 1791 (Raj), where the",
"accused was not seen anywhere near the house from which things were stolen, he was",
punished only for receiving stolen property because things were recovered from his possession.,
"A Devendran v State of TN, 1998 Cr LJ 814 : AIR 1998 SC 2821 [LNIND 1997 SC 1368] , articles",
stolen in an incident of murder and robbery were recovered from the house of the accused after,
"two months. Not sufficient to convict him for robbery and murder, but only for receiving stolen",
"property under section 411. See also Shahul Hameed v State, 1998 Cr LJ 885 (Mad).",
"449. Mahabir Sao v State, 1972 Cr LJ 458 : AIR 1972 SC 642 : (1972) 1 SCC 505 ; Chandmal,",
"1976 Cr LJ 679 : AIR 1976 SC 917 : (1976) 1 SCC 621 ; Mewaram v State of UP, 1988 Cr LJ 1215",
"All, failure to identify wrist watch recovered, conviction under the section set aside. Sabitri",
"Sharma v State of Orissa, 1987 Cr LJ 956 (Ori), mere possession, no liability. Narayan Das v State",
"of Rajasthan, 1998 Cr LJ 29 (Raj) failure to prove identity of the stolen property so as to show",
that it was the same stolen property which was recovered.,
"450. Mohon Lal, 1979 Cr LJ 1328 : AIR 1979 SC 1718 .",
"451. Nagappa Dhondiba, 1980 Cr LJ 1270 : AIR 1980 SC 1753 . See further Joga Gola v State of",
"Gujarat, 1982 SCC (Cr) 141 : AIR 1982 SC 1227 : 1981 Supp SCC 66 , possession by the accused",
of the cows which were in the herd of the deceased at the time of his death was considered to,
"be enough proof for a conviction under the section. See also Pandara Nadar v State of TN, AIR",
"1991 SC 391 : 1991 Cr LJ 468 , where there was neither proof of possession on the part of any",
"of the several persons, who were already acquitted from the charge of belonging to a gang of",
"thieves; Kedar Nath v State of UP, AIR 1991 SC 1224 : 1991 Cr LJ 989 , no value of recovery of",
"possession, where appeal being heard 17 years after occurrence. There was no charge in this",
case under the section. The Supreme Court refused to convict 17 years after the occurrence.,
"452. Errabhadrappa v State of Karnataka, AIR 1983 SC 446 [LNIND 1983 SC 83] : 1983 Cr LJ 846",
: (1983) 2 SCC 330 [LNIND 1983 SC 83] .,
"453. Kanik Lal Thakur v State of Bihar, 2003 Cr LJ 375 .",
"454. Karni Singh v State of Rajasthan, 1999 Cr LJ 1791 (Raj). Public Prosecutor v Yenta Arjuna,",
"1998 Cr LJ 179 (AP), no evidence connecting the accused person with murder and robbery, but",
"recovery from him created the presumption under section 114, Evidence Act, 1872 that he was",
"recipient with knowledge. Preetam Singh v State, 1998 Cr LJ 1483 (Del) no presumption where",
"the recovery process itself was faulted. Pentapati Veerababu v State of AP, 1998 Cr LJ 2505",
"(AP), recovery of stolen property from an employee of the shop at the instance of the accused",
from the house of his brother-in-law. Presumption against him because the in criminating,
evidence.,
"455. Giriraj Singh Gaghela v State of A P, 2009 Cr LJ 1257 (AP).",
"456. Rajive Sandhu v State of Union Territory, 2004 Cr LJ 4308 (PH).",
THE INDIAN PENAL CODE,
CHAPTER XVII OF OFFENCES AGAINST PROPERTY,
Of Theft,
Of the Receiving of Stolen Property,
[s 412] Dishonestly receiving property stolen in the commission of a dacoity.,
"Whoever dishonestly receives or retains any stolen property, the possession whereof",
he knows or has reason to believe to have been transferred by the commission of,
"dacoity, or dishonestly receives from a person, whom he knows or has reason to",
"believe to belong or to have belonged to a gang of dacoits, property which he knows",
"or has reason to believe to have been stolen, shall be punished with 457.",
"[imprisonment for life], or with rigorous imprisonment for a term which may extend to",
"ten years, and shall also be liable to fine.",
COMMENT—,
This section was enacted to stamp out the offence of dacoity which was very rampant,
when the Code came into force. It refers to persons other than actual dacoits. It,
provides the same punishment to a receiver of property obtained in dacoity as to,
"dacoits themselves. It is apparent from a plain reading of section 412 IPC, 1860, that a",
"person receiving stolen goods, would be guilty of the offence under section 412 IPC,",
"1860, if it can further be shown, that the recipient of the goods knew (or had reason to",
"believe), that the person offering the goods, belonged to a gang of dacoits.458.",
[s 412.1] CASES.—,
"The Supreme Court held in PB Soundankar v State of Maharashtra, in absence of any",
"evidence to show the appellant was aware, that the silver chips presented to him by",
accused were procured by the commission of a dacoity or in the alternative that he,
knew (or had reason to believe) that accused belonged to a gang of dacoits the guilt of,
"the appellant under section 412 IPC, 1860 could not be stated to have been",
"substantiated in the facts and circumstances of the present case."" Hence, the",
conviction altered to section 411.459. Where properties looted in a dacoity were found,
in the possession of the accused who was the resident of the neighbouring village,
"within three days of the occurrence, it was held that it could be presumed that he had",
known or had reason to believe that the properties were the stolen properties of the,
"dacoity and as such his conviction under section 412, IPC, 1860, was quite in order.460.",
The same principle was upheld by the Supreme Court to say that where property looted,
"in a dacoity was recovered from the accused very soon after the dacoity, the accused",
"could not be convicted under section 395 but his conviction under section 412, IPC,",
"1860, would be quite in order.461. Recovery at the instance of the accused persons of",
stolen property shortly after a dacoity has been held by the Supreme Court as sufficient,
for a conviction under this section.462.,
[s 412.2] Conviction under section 395 and section 412;-,
When the accused was convicted of having committed dacoity there could not be any,
"further conviction under section 412.463. Even though dacoity is proved, conviction",
"under section 412 is maintainable.464. In Mohan Chetri v State of West Bengal, it was",
held that conviction under sections 412 or 411 is not permissible simultaneously with,
"conviction under sections 395 or 394, as the case may be, in respect of the same",
accused.465.,
"457. Subs. by Act 26 of 1955, section 117 and Sch, for ""transportation for life"" (w.e.f. 1 January",
1956).,
"458. PB Soundankar v State of Maharashtra, (2013) 1 SCC 635 [LNIND 2012 SC 759] .",
"459. PB Soundankar v State of Maharashtra, (2013) 1 SCC 635 [LNIND 2012 SC 759] ; Narayan",
"Prasad v State of Madhya Pradesh, AIR 2006 SC 204 [LNIND 2005 SC 881] : (2005) 13 SCC 247",
"[LNIND 2005 SC 881] ; Rafi v State of Uttaranchal, 2012 Cr LJ. 4012 (Utt)-where looted property",
was recovered from possession of accused persons conviction under section 396 and 412 was,
held proper.,
"460. Ishwari, 1980 Cr LJ 571 (All).",
"461. Amar Singh, 1982 Cr LJ 610 (SC) : AIR 1982 SC 129 .",
"462. Lachhman Ram v State of Orissa, AIR 1985 SC 486 [LNIND 1985 SC 77] : 1985 Cr LJ 753 :",
"(1985) 2 SCC 533 [LNIND 1985 SC 77] . Pawan Yadav v State of Bihar, 2001 Cr LJ 3626 (Pat),",
"property stolen in dacoity recovered from the house of the co-accused, conviction proper, spent",
"3 years in jail, single identification of looted property, sentence reduced to the period already",
undergone.,
"463. Mojaffar v State of West Bengal, 2011 Cr LJ 1249 ; Dilip Malik v State, 1991 Cr LJ 2171",
(Cal).,
"464. Mursalim Shaikh v State of West Bengal, 2011 Cr LJ 1840 (Cal).",
"465. Mohan Chetri v State of West Bengal, 1992 Cr LJ 2374 (Cal). Rafikul Alam v State of West",
"Bengal;2008 CR LJ 2005 (Cal); Raj Kumar v State, AIR 2008 SC 3284 [LNIND 2008 SC 2782] :",
(2008) 11 SCC 709 [LNIND 2008 SC 849] - the Trial Court held that since recovery effected by,
"the prosecution was not in consonance with law, it could not be said that stolen articles of",
dacoity were found from the accused and consequently charge for an offence punishable under,
"section 412, IPC, 1860 also could not be said to be established. Supreme Court did not interfere",
with the order of acquittal.,
THE INDIAN PENAL CODE,
CHAPTER XVII OF OFFENCES AGAINST PROPERTY,
Of Theft,
Of the Receiving of Stolen Property,
[s 413] Habitually dealing in stolen property.,
Whoever habitually receives or deals in property which he knows or has reason to,
"believe to be stolen property, shall be punished with 466.[imprisonment for life], or",
"with imprisonment of either description for a term which may extend to ten years, and",
shall also be liable to fine.,
COMMENT—,
The reason for inserting section 413 by the legislature is clear from the language of the,
section. The legislature purposely enacted knowing it well that there is already section,
411 in respect of offence of dishonestly receiving stolen property knowing it to be,
"stolen. The legislature inserted section 413 in the IPC, 1860 where under it is provided",
"that if a person is habitually dealing in stolen property, he will be charged for offence",
"under section 413, IPC, 1860. The terms of the provision make it clear that ""habitually",
"dealing"" means there is evidence on record that there are other instances other than",
the present instance of the accused found to be indulging in the act and he is facing,
"trial, then, it can be said that section 413, IPC, 1860 is attracted.467. This section",
punishes severely the common receiver or professional dealer in stolen property.,
"466. Subs. by Act 26 of 1955, section 117 and Sch, for ""transportation for life"" (w.e.f. 1 January",
1956).,
"467. State v Waman Gheeya, 2007 Cr LJ 3614 (Raj).",
THE INDIAN PENAL CODE,
CHAPTER XVII OF OFFENCES AGAINST PROPERTY,
Of Theft,
Of the Receiving of Stolen Property,
[s 414] Assisting in concealment of stolen property.,
Whoever voluntarily assists in concealing or disposing of or making away with,
"property which he knows or has reason to believe to be stolen property, shall be",
punished with imprisonment of either description for a term which may extend to,
"three years, or with fine, or with both.",
COMMENT—,
This section requires two things—,
1. Voluntary assistance in concealing or disposing of or making away with property.,
2. Knowledge or reason to believe that such property is stolen property.,
"The section is intended to penalise the person, who deal with stolen property in such a",
way that it becomes difficult to identify it or use it as evidence. It is not necessary to,
establish that the property was the subject matter of any particular theft. It would,
"suffice if the prosecution can establish that the accused had knowledge or ""had reason",
"to believe"" that the property is stolen one. All that the prosecution is required to",
establish is that the accused rendered help in either concealment or disposal of the,
"property, which he had reason to believe to be stolen property or had knowledge to",
believe that it was such.468. It is not necessary for a person to be convicted under this,
section that another person must be traced out and convicted of an offence of,
committing theft. The prosecution has simply to establish that the property recovered,
is stolen property and that the accused provided help in its concealment and,
disposal.469.,
[s 414.1] CASES.—,
"The accused was the driver of a taxi, which was carrying several persons who had hired",
"it. While on its way the taxi stopped at a place for some reason, not known, and two of",
the passengers got down from the taxi and within a distance of about three and a half,
"yards from the taxi they suddenly and without premeditation attacked, injured and",
robbed a man of his purse containing about Rs. 50. The robbers then boarded the taxi,
"and the driver, in spite of the cries of the victim, drove away as fast as he could. It was",
held that the driver assisted the robbers in making away with the money so robbed and,
was guilty under this section.470. A person who helps the disposal of stolen property by,
buying the same himself has been held to be guilty of the offence under the,
section.471.,
"468. Sayyed Issaq v State of Maharashtra, 2008 Cr LJ 2950 (Bom).",
"469. Ajendranath, AIR 1964 SC 170 [LNIND 1963 SC 126] : (1964) 1 Cr LJ 129 .",
"470. Hari Singh, (1940) 2 Cal 9 .",
"471. Bhanwarlal v State of Rajasthan, (1995) 1 Cr LJ 625 (Raj).",
THE INDIAN PENAL CODE,
CHAPTER XVII OF OFFENCES AGAINST PROPERTY,
Of Theft,
Of Cheating,
[s 415] Cheating.,
"Whoever, by deceiving any person1, fraudulently or dishonestly induces the person so",
"deceived to deliver any property2 to any person, or to consent that any person shall",
"retain any property,3 or intentionally induces the person so deceived to do or omit to",
"do anything which he would not do or omit if he were not so deceived,4 and which act",
"or omission causes or is likely to cause damage or harm to that person in body, mind,",
"reputation or property,5 is said to ""cheat"".",
Explanation.—A dishonest concealment of facts is a deception within the meaning of,
this section.,
ILLUSTRATIONS,
"(a) A, by falsely pretending to be in the Civil Service, intentionally deceives Z, and",
thus dishonestly induces Z to let him have on credit goods for which he does not,
mean to pay. A cheats.,
"(b) A, by putting a counterfeit mark on an article, intentionally deceives Z into a",
"belief that this article was made by a certain celebrated manufacturer, and thus",
dishonestly induces Z to buy and pay for the article. A cheats.,
"(c) A, by exhibiting to Z a false sample of an article, intentionally deceives Z into",
"believing that the article corresponds with the sample, and thereby, dishonestly",
induces Z to buy and pay for the article. A cheats.,
"(d) A, by tendering in payment for an article a bill on a house with which A keeps no",
"money, and by which A expects that the bill will be dishonored, intentionally",
"deceives Z, and thereby dishonestly induces Z to deliver the article, intending",
not to pay for it. A cheats.,
"(e) A, by pledging as diamonds article which he knows are not diamonds,",
"intentionally deceives Z, and thereby dishonestly induces Z to lend money. A",
cheats.,
(f) A intentionally deceives Z into a belief that A means to repay any money that Z,
may lend to him and thereby dishonestly induces Z to lend him money. A not,
intending to repay it. A cheats.,
(g) A intentionally deceives Z into a belief that A means to deliver to Z a certain,
"quantity of indigo plant which he does not intend to deliver, and thereby",
dishonestly induces Z to advance money upon the faith of such delivery. A,
"cheats; but if A, at the time of obtaining the money, intends to deliver the indigo",
"plant, and afterwards breaks his contract and does not deliver it, he does not",
"cheat, but is liable only to a civil action for breach of contract.",
(h) A intentionally deceives Z into a belief that A has performed A's part of a,
"contract made with Z, which he has not performed, and thereby dishonestly",
induces Z to pay money. A cheats.,
"(i) A sells and conveys an estate to B. A, knowing that in consequence of such sale",
"he has no right to the property, sells or mortgages the same to Z, without",
"disclosing the fact of the previous sale and conveyance to B, and receives the",
purchase or mortgage money from Z. A cheats.,
COMMENT—,
In most of the foregoing offences relating to property the offender merely got,
"possession of the thing in question, but in the case of cheating he obtains possession",
plus property in it.,
"The authors of the Code observe: ""We propose to make it cheating to obtain property",
"by deception in all cases where the property is fraudulently obtained; that is to say, in all",
cases where the intention of the person who has by deceit obtained the property was,
to cause a distribution of property which the law pronounces to be a wrongful,
"distribution, and in no other case whatever. However immoral a deception may be, we",
do not consider it as an offence against the rights of property if its object is only to,
cause a distribution of property which the law recognizes as rightful.,
"""We propose to punish as guilty of cheating a man who, by false representations,",
"obtains a loan of money, not meaning to repay it; a man who, by false representations,",
"obtains an advance of money, not meaning to perform the service or to deliver the",
"article for which the advance is given; a man who, by falsely pretending to have",
"performed work for which he was hired, obtains pay to which he is not entitled.",
"""In all these cases there is deception. In all, the deceiver's object is fraudulent. He",
intends in all these cases to acquire or retain wrongful possession of that to which,
some other person has a better claim and which that other person is entitled to recover,
"by law. In all these cases, therefore, the object has been wrongful gain, attended with",
"wrongful loss. In all, therefore, there has, according to our definition, been cheating"".472.",
[s 415.1] Ingredients.—,
The section requires—,
(1) Deception of any person.,
(2) (a) Fraudulently or dishonestly inducing that person—,
(i) to deliver any property to any person; or,
(ii) to consent that any person shall retain any property; or,
(b) Intentionally inducing that person to do or omit to do anything which he would not,
"do or omit if he were not so deceived, and which act or omission causes or is likely to",
"cause damage or harm to that person in body, mind, reputation or property.473. There",
are two separate classes of acts which the persons deceived may be induced to do. In,
the first place he may be induced fraudulently or dishonestly to deliver any property to,
any person. The second class of acts set-forth in the section is the doing or omitting to,
do anything which the person deceived would not do or omit to do if he were not so,
deceived. In the first class of cases the inducing must be fraudulent or dishonest. In the,
"second class of acts, the inducing must be intentional but not fraudulent or",
dishonest.474.,
In the definition of cheating there are set forth two separate classes of acts which the,
"person deceived may be induced to do. In the first place, he may be induced",
fraudulently or dishonestly to deliver any property to any person or to consent that any,
person shall retain any property. The second class of acts set forth in the section is the,
doing or omitting to do anything which the person deceived would not do or omit to do,
if he were not so deceived. In the first class of cases the inducing must be fraudulent or,
dishonest. In the second class of acts the inducing must be intentional but not,
fraudulent or dishonest.,
The definition of the offence of cheating embraces some cases in which no transfer of,
property is occasioned by the deception and some in which such a transfer occurs; for,
these cases generally provision is made in section 417 of the Code. For cases in which,
property is transferred a more specific provision is made by section 420.,
"The offence of cheating is not committed if a third party, on whom no deception has",
"been practised, sustains pecuniary loss in consequence of the accused's act.475.",
[s 415.2] Cheating and extortion.—,
"The offence of cheating must, like that of extortion, be committed by the wrongful",
obtaining of a consent. The difference is that the extortioner obtains the consent by,
"intimidation, and the cheat by deception.476.",
[s 415.3] Breach of contract and cheating.—,
The distinction between mere breach of contract and the offence of cheating is a fine,
one. It depends upon the intention of the accused at the time of inducement which may,
"be judged by his subsequent conduct, but for which the subsequent conduct is not the",
sole test. Mere breach of contract cannot give rise to criminal prosecution under,
"section 420, IPC, 1860, unless fraudulent or dishonest intention is shown right at the",
"beginning of the transaction, which is the time when the offence is said to have been",
committed.477. There was allegation from one side that no payment was being made,
under the contract. The other side pleaded that part payments were made from time to,
time and the balance was withheld due to non-standard nature of the work and a letter,
to that effect was issued. The Court said that the controversy was wholly of civil,
nature. There was total absence of dishonest criminal intention to dupe contractions',
right from the inception of the relationship.478. Although breach of contract per se,
"would not come in the way of initiation of a criminal proceeding, there cannot be any",
doubt whatsoever that in absence of the averments made in the complaint petition,
"wherefrom the ingredients of an offence can be found out, the Court should not",
"hesitate to exercise its jurisdiction under section 482 of the Cr PC, 1973.479.",
The distinction was explained by the Supreme Court in a case involving an agreement,
for sale of property. The allegation in the complaint was that the seller had not,
disclosed that one of his brothers had filed a partition suit which was pending. There,
was no allegation that non-disclosure of the suit was intentional. The dishonest,
intention on the part of the accused at the beginning of negotiations was not made out,
by averments in the complaint. The High Court was wrong in declining to quash the,
criminal proceedings.480.,
"The accused promised, propagated and induced the public through advertisements to",
invest money in a circulation scheme. Double the money was promised to a member,
who enrolled 14 new members. The scheme was found to be practically impossible.,
Thus there was an element of cheating.481.,
[s 415.4] Dishonest intention at the time of making the promise a sine qua non,
for the offence of cheating.—,
To hold a person guilty of cheating it is necessary to show that he had a fraudulent or,
dishonest intention at the time of making the promise. From mere fact that the,
"promisor could not keep his promise, it cannot be presumed that he all along had a",
culpable intention to break the promise from the beginning.482.,
"[s 415.5] Cheating, criminal breach of trust, and criminal misappropriation.—",
Cheating differs from the last two offences in the fact that the cheat takes possession,
of property by deception. There is wrongful gain or loss in both cases and in both,
cases there is inducement to deliver property. In the case of cheating the dishonest,
intention starts with the very inception of the transaction. But in the case of criminal,
"breach of trust, the person who comes into possession of but retains it or converts it to",
his own use against the terms of the contract.483.,
Criminal breach of trust and cheating are two distinct offences generally involving,
dishonest intention but mutually exclusive and different in basic concept. The former is,
voluntary but the latter is purely on the basis of inducement with dishonest,
intention.484.,
"1. 'Deceiving any person'.—Deceiving means causing to believe what is false, or",
"misleading as to a matter of fact, or leading into error. Whenever a person fraudulently",
"represents as an existing fact that which is not an existing fact, he commits this",
"offence. A wilful misrepresentation of a definite fact with intent to defraud, cognizable",
by the senses—as where a seller represents the quantity of coal to be 14 cwt. whereas,
"it is in fact only eight cwt. but so packed as to look more; or where the seller, by",
"manoeuvring, contrives to pass off tasters of cheese as if extracted from the cheese",
"offered for sale, whereas it is not—is a cheating.485. Deception is a necessary",
ingredient for the offences of cheating under both parts of this section. The,
"complainant, therefore, necessarily needs to prove that the inducement had been",
caused by the deception exercised by the accused. Such deception must necessarily,
"produce the inducement to part with or deliver property, which the complainant would",
"not have parted with or delivered, but for the inducement resulting from deception. The",
explanation to the section would clearly indicate that there must be no dishonest,
"concealment of facts. In other words, non-disclosure of relevant information would",
also be treated as a misrepresentation of facts leading to deception.486.,
It is not sufficient to prove that a false representation had been made but it is further,
necessary to prove that the representation was false to the knowledge of the accused,
and was made in order to deceive the complainant.487. Where a party was persuaded,
to take out a policy of insurance and the insurer subsequently failed to pay on the,
"happening of the event insured against, it was held that a dishonest intention cannot be",
inferred from a subsequent failure to fulfil a promise.488.,
It is not necessary that the false pretence should be made in express words; it can be,
"inferred from all the circumstances attending the obtaining of the property,489. or from",
conduct.490. If a person orders out goods on credit promising to pay for them on a,
"particular day knowing that it was impossible for him to pay, this would amount to",
cheating. But the mere fact that he is in embarrassed circumstances does not lead to,
such inference.491.,
[s 415.6] Cheque discounting facility.—,
The complainant is required to show that accused had fraudulent or dishonest,
intention at the time of making promise or representation. In the absence of culpable,
"intention at the time of making initial promise, no offence is made out under section",
"420. In present case, the allowing of cheque discounting facility by bank officials to",
"customers of the bank, without any criminal intent being proved, did not amount to",
"commission of offence, particularly as facility allowed was not contrary to RBI",
Guidelines. It could not also be said that there was a meeting of minds in a conspiracy,
"to commit an offence, nor an act of corruption could be inferred from transactions",
between the bank and its customers. The accused officials might have been,
prosecuted under section 409 but they were not so charged. Their conviction was set,
aside.492.,
2. 'Fraudulently or dishonestly induces the person so deceived to deliver any,
property'.—The words 'fraudulently' and 'dishonestly' do not govern the whole of the,
"definition of cheating. The section is divided into two parts, the second of which",
"provides for the case of a person who, by deceiving another intentionally, induces the",
person so deceived to do an act which causes or is likely to cause damage or harm,
although the deceiver has not acted fraudulently or dishonestly.493.,
3. 'Or to consent that any person shall retain any property'.—It is cheating whether a,
"deception causes a person fraudulently or dishonestly to acquire property by delivery,",
or to retain property already in his possession.,
Property does not have to be a thing which has money or market value. Since a,
passport is a tangible thing and a document of great importance for travel abroad there,
can be no doubt that it is property within the meaning of this section. Thus where the,
accused obtained several passports by making false representation to the passport,
"issuing authority they were rightly convicted under sections 420 and 420/120B, IPC,",
1860.494.,
4. 'Intentionally inducing that person to do or omit to do anything which he would not,
"do or omit, etc.'.—Intention is the gist of the offence. The person cheated must have",
been intentionally induced to do an act which he would not have done or to omit to do,
"an act which he would have done, owing to the deception practised on him. The",
intention at the time of the offence and the consequence of the act or omission itself,
"has to be considered.495. Intent refers to the dominant motive of action, and not to a",
casual or merely possible result.496. Where the facts narrated in the complaint revealed,
"a commercial transaction, it was held that such a transaction could not lead to the",
conclusion of a criminal intention to cheat. The Court said that the crux of this offence,
is the intention of the accused person.497.,
Sections 415 read with section 420 indicates that fraudulent or dishonest inducement,
on the part of the accused must be at the inception and not at a subsequent stage. In,
"this case, blank cheques were handed over to the accused during the period 2000–",
2004 for use of business purposes but the dispute between the parties admittedly,
"arose much after that, i.e., in 2005. Thus, no case for proceeding against the",
respondent under section 420 is made out. Filling up of the blanks in a cheque by itself,
would not amount to forgery. A case for proceeding against the respondents under,
"section 406 IPC, 1860 has been made out. A cheque being a property, the same was",
entrusted to the respondents. If the property has been misappropriated has been used,
"for a purpose for which the same had been handed over, a case under section 406 IPC,",
1860 may be found to have been made out. It may be true that even in a proceeding,
"under section 138 of Negotiable Instruments Act, the appellant could raise a defence",
that the cheques were not meant to be used towards discharge of a lawful liability or a,
"debt, but the same by itself would not mean that in an appropriate case, a complaint",
petition cannot be allowed to be filed.498.,
The existence of fraudulent intention at the time of making promise or,
misrepresentation is a necessary ingredient. The mere failure on the part of the,
accused to keep up the promise is not sufficient to prove the existence of such,
intention from the beginning.499.,
[s 415.7] Fraudulent or dishonest intention to be at the outset.—,
To hold a person guilty of cheating it is necessary to show that he had fraudulent or,
dishonest intention at the time of making the promise. From his mere failure to keep up,
"the promise subsequently such a culpable intention right at the beginning, that is, when",
he made the promise cannot be presumed.500.,
A beverages company entered into a bottling agreement with a bottling company for,
"bottling services for a period of five years, subsequently, however, the beverage",
company transferred its trade mark to another company to which the bottling,
agreement was also assigned. But the latter company terminated the agreement. The,
bottling company filed a complaint for cheating saying that they had spent a huge,
amount in setting up their bottling unit. The complaint was quashed. There was no,
arrangement with the beverages company at the time when the complainant was,
"bringing up his unit, nor did the beverages company have any intention of cheating",
from the start or at any subsequent stage.501.,
Although it is necessary that there should be misrepresentation from the very,
"beginning, the intention to cheat may in some cases develop at a later stage in the",
process of formation of the contract. The respondent in this case was a co-sharer in,
the joint property. The other co-sharers sold it to others representing that they had one-,
third share in the property when in fact it was not so. It was held that no cheating was,
practiced in the transaction upon the complaining co-sharer. It was a fraud on others.,
The complainant could not launch a criminal prosecution against them.502.,
"The illustration (b) provided in section 415, IPC, 1860, very well covers the facts of this",
"case for cheating by the accused. The illustration provides that ""(b) A, by putting a",
"counterfoil mark on an article, intentionally deceives Z into a belief that this article was",
"made in a certain celebrated manufacturer, and thus dishonestly induces Z to buy and pay",
"for the article, A cheats.""503.",
[s 415.8] Civil and Criminal liability.—,
A distinction must be made between a civil wrong and a criminal wrong. When dispute,
"between the parties constitute only a civil wrong and not a criminal wrong, the Courts",
would not permit a person to be harassed although no case for taking cognizance of,
the offence has been made out.504. The case of breach of trust or cheating is both a,
"civil wrong and a criminal offence, but under certain situations where the act alleged",
"would predominantly be a civil wrong, such an act does not constitute a criminal",
offence.505. Sometimes case may apparently look to be of civil nature or may involve a,
commercial transaction but civil disputes or commercial disputes in certain,
circumstances may also contain ingredients of criminal offences and such disputes,
have to be entertained notwithstanding they are also civil disputes.506.,
[s 415.9] Cheating by Misrepresentation as to Encumbrance to Property.—,
It is the intention which is important and not whether a man is under a legal duty to,
"disclose or suppress facts within his knowledge. Therefore, where a person with the",
intention of causing wrongful loss to another makes a false representation to him or,
"suppresses certain facts, he will be said to have acted dishonestly even if the law does",
"not require him to state the truth. Therefore, the non-disclosure of the previous",
encumbrances will not affect the rights of the previous mortgagees and will not pass a,
complete title to the purchaser; the purchaser may nevertheless have been cheated.507.,
Where the vendor of immovable property omitted to mention that there was an,
"encumbranceon the property, it was held that he could not be convicted of cheating",
unless it was shown either that he was asked by the vendee whether the property was,
"encumbered and said it was not, or that he sold the property on the representation that",
it was unencumbered.508.,
[s 415.10] Disconnection of Electricity and Water by Landlord.—,
The landlord disconnected the electricity and water supply of the tenant. The tenant,
could not make out that the landlord had the fraudulent intention of deceiving the,
"tenant at the time of entering into the transaction of lease. Thus, there was no",
possibility of conviction for an offence under section 415.509.,
5. 'Which act or omission causes or is likely to cause damage or harm to that person,
"in body, mind, reputation or property'.—The damage must be the direct, natural or",
probable consequence of the induced act. The resulting damage or likelihood of,
damage may not be within the actual contemplation of the accused when the deceit,
"was practised. The person deceived must have acted under the influence of deceit, and",
"the damage must not be too remote.510. The use of the expression ""cause"" in this",
section postulates a direct and proximate casual connection between the act or,
omission and the harm and damage to the victim.511.,
It is necessary that the harm should be caused to the person deceived. Damage or,
"harm in mind covers both, injury to mental faculties or mental pain or anguish.512.",
Where the accused falsely identified a person before the Oaths Commissioner and thus,
"induced him to attest an affidavit, it was held that no offence under section 419, IPC,",
"1860, was committed as the Oaths Commissioner did not suffer any harm in his body,",
"mind, reputation or property.513.",
[s 415.11] Explanation.—,
The Explanation refers to the actual deception itself and not to the concealment of a,
deception by someone else. For the purposes of this section the concealment of fact,
need not be illegal if it is dishonest.514.,
[s 415.12] Trade mark.—,
The Madras High Court has held that the infringement of a trade mark may constitute,
"the offence of cheating and, therefore, the FIR for the offence was not to be",
quashed.515.,
Selling property having no right to do so.—Where property is sold by a person knowing,
"that it does not belong to him, it was held that he defrauded the purchaser. The latter",
"could prosecute him under section 415, but no third person could do so.516.",
The offence of cheating need not necessarily relate to property. It can also partake the,
nature of personation. The accused in this case palmed off his sister as belonging to a,
"higher caste with the object of getting her married to the petitioner, a person of higher",
caste. It was held that the offence fell under the second part of the definition.517.,
[s 415.13] Prosecution of Company.—,
"In the case of Penal Code offences, for example under section 420 of the IPC, 1860, for",
"cheating and dishonestly inducing delivery of property, the punishment prescribed is",
imprisonment of either description for a term which may extend to seven years and,
"shall also be liable to fine; and for the offence under section 417, that is, simple",
"cheating, the punishment prescribed is imprisonment of either description for a term",
which may extend to one year or with fine or with both. If the appellants' plea is,
"accepted then for the offence under section 417 IPC, 1860, which is an offence of",
"minor nature, a company could be prosecuted and punished with fine whereas for the",
"offence under section 420, which is an aggravated form of cheating by which the victim",
"is dishonestly induced to deliver property, the company cannot be prosecuted as there",
is a mandatory sentence of imprisonment. There is no immunity to the companies from,
prosecution merely because the prosecution is in respect of offences for which the,
punishment prescribed is mandatory imprisonment.518. A corporation is virtually in the,
same position as any individual and may be convicted of common law as well as,
statutory offences including those requiring mens rea. The criminal liability of a,
corporation would arise when an offence is committed in relation to the business of the,
corporation by a person or body of persons in control of its affairs. Companies and,
corporate houses can no longer claim immunity from criminal prosecution on ground,
"that they are incapable of possessing necessary mens rea.519. Since, the majority of",
the Constitution Bench ruled in Standard Chartered Bank v Directorate of,
"Enforcement,520. that the company can be prosecuted even in a case where the Court",
"can impose substantive sentence as also fine, and in such case only fine can be",
imposed on the corporate body.521.,
[s 415.14] Directors of Company.—,
The Penal Code does not contain any provision for attaching vicarious liability on the,
part of the Managing Director or the Directors of the Company when the accused is the,
"Company. The learned Magistrate failed to pose unto himself the correct question, viz.,",
"as to whether the complaint petition, even if given face value and taken to be correct in",
"its entirety, would lead to the conclusion that the respondents herein were personally",
liable for any offence. The Bank is a body corporate. Vicarious liability of the Managing,
Director and Director would arise provided any provision exists in that behalf in the,
Statute. Statutes indisputably must contain provision fixing such vicarious liabilities.,
"Even for the said purpose, it is obligatory on the part of the complainant to make",
requisite allegations which would attract the provisions constituting vicarious,
liability.522.,
[s 415.15] Vicarious liability of employees.—,
A vicarious liability can be fastened only by reason of a provision of a statute and not,
"otherwise. For the said purpose, a legal fiction has to be created. Even under a special",
statute when the vicarious criminal liability is fastened on a person on the premise that,
"he was in-charge of the affairs of the company and responsible to it, all the ingredients",
laid down under the statute must be fulfilled. A legal fiction must be confined to the,
"object and purport for which it has been created."" No case of criminal misconduct on",
their part has been made out before the formation of the contract. There is nothing to,
show that the appellants herein who hold different positions in the appellant-company,
"made any representation in their personal capacities and, thus, they cannot be made",
"vicariously liable only because they are employees of the company.""523.",
[s 415.16] Allotment of wagons on false letters.—,
The accused who were railway employees tried to divert wagons by procuring their,
"allotment on fake letters of request issued by a fake firm, were held to be guilty of",
cheating.524.,
[s 415.17] Representation to Public Service Commission and other appointing,
authority.—,
The accused who was at the time serving in the Madras Medical Service as a Civil,
Assistant Surgeon on a temporary basis applied for a permanent post notified by the,
"Madras Public Service Commission and made false representations as to his name,",
"place of birth, father's name and a degree held by him which was a necessary",
qualification. His name was recommended by the Commission and he was appointed,
by the Government to the post and drew his salary for several years before the fraud,
was detected. It was held that although the Commission was an independent statutory,
"body performing advisory function, the deception of such adviser was deception of the",
Government and the accused was liable under the section.525. Where a non-scheduled,
caste candidate sat for the Indian Administrative Service Examination falsely declaring,
himself to be a scheduled caste candidate in his application before the Union Public,
Service Commission and thus obtained the advantage of the relaxed standard of,
examination prescribed for scheduled caste candidates and eventually got appointed,
"as an IAS. officer by the Government of India, it was held that he had clearly cheated",
both the Union Public Service Commission and the Government of India and was rightly,
"convicted under section 429, IPC, 1860.526.",
Securing appointments from Government officials by producing fake letters from,
"Ministers and also by posing to be the brother of a minister, has been held to constitute",
"an offence of cheating by personation, and of forgery under sections 466–467 and of",
forging Ministerial communications under section 468.527.,
[s 415.18] Illustration(f).—,
It may be that the facts narrated in the present complaint would as well reveal a,
commercial transaction or money transaction. But that is hardly a reason for holding,
"that the offence of cheating would elude from such a transaction. In fact, many a",
cheatings were committed in the course of commercial and also money transactions.,
"One of the illustrations set out under section 415 of the IPC, 1860 (Illustration f) is",
"worthy of notice now ""(f) A intentionally deceives Z into a belief that A means to repay",
any money that Z may lend to him and thereby dishonestly induces Z to lend him,
"money, A not intending to repay it. A cheats.""528. On its plain language it is manifest",
from this illustration that what is material is the intention of the drawer at the time the,
"cheque is issued, and the intention has to be gathered from the facts on the record. If",
from the circumstances it is established that the failure to meet a cheque was not,
"accidental but was the consequence expected by the accused, the presumption would",
be that the accused intended to cheat.529.,
The accused introduced a person to the bank only for opening an account. It was held,
that such act could not by itself spell out any intention to commit fraud or cheating.,
The evidence did not show that the introducer was in any way connected with the fraud,
committed on the bank by the person introduced or with the loss suffered by the bank.,
He was accordingly acquitted of all charges.530.,
"472. Note N, pp 164, 166.",
473. The restatement of these ingredients occurs in Divender Kumar Singla v Baldev Krishna,
"Singla, AIR 2004 SC 3084 [LNIND 2004 SC 228] : (2005) 9 SCC 15 [LNIND 2004 SC 228] .",
"474. Hridya Rajan Pd. Verma v State of Bihar, AIR 2000 SC 2341 [LNIND 2000 SC 563] ; Arun",
"Bhandari v State of UP, (2013) 2 SCC 801 [LNIND 2013 SC 18] : 2013 Cr LJ 1020 (SC).",
"475. Sundar Singh, (1904) PR No. 25 of 1904.",
476. Note N p 163.,
"477. K Periasami v State, 1985 Cr LJ 1721 (Mad); See also discussion under para ""Dishonest",
"Intention at the outset"" infra. See also Poovalappil David v State of Kerala, 1989 Cr LJ 2452 (Ker),",
"switching off AC machines in a cinema hall after the patrons are in, cheating. Proceedings on",
"the report of a police sub-inspector not illegal. Vinar Ltd v Chenab Textile Mills, 1989 Cr LJ 1858",
"(J&K) Ranbir Code, breach of business contract, no criminal proceeding allowed. Ranjit Pant v",
"State of Jharkhand, 2003 Cr LJ 1736 (Jhar), the complainant (landowner) was induced by the",
accused that on his handing over his land under a lease for establishing a petrol pump he would,
"be given dealership. A bank guarantee of Rs. 4 lacs was taken from him, but dealership was",
"allotted to another person. Thus, it seemed to the court that the accused did not have bona fide",
intention from the beginning. Framing of charge-sheet under section 468 forgery for cheating,
and section 420 was held to be proper.,
"478. Gautam Sinha v State of Bihar, 2003 Cr LJ 635 (Jhar).",
"479. V Y Jose v State of Gujarat, AIR 2009 SC (Supp) 59.",
"480. Hridaya Ranjan Pd. Verma v State of Bihar, AIR 2000 SC 2341 [LNIND 2000 SC 563] : 2000",
"Cr LJ 2983 ; Murari Lal Gupta v Gopi Singh, (2006) 2 SCC (Cr) 430; B Suresh Yadav v Sharifa Bee,",
(2007) 13 SCC 107 [LNIND 2007 SC 1238] .,
"481. Kuriachan Chacko v State of Kerala, (2008) 8 SCC 708 [LNIND 2008 SC 1378] .",
"482. Inder Mohan Goswami v State of Uttaranchal, (2007) 12 SCC 1 [LNIND 2007 SC 1179] :",
"(2008) 1 SCC (Cr) 259 : AIR 2008 SC 251 [LNIND 2007 SC 1179] ; SN Palanitkar v State of Bihar,",
AIR 2001 SC 2960 [LNIND 2001 SC 2381] .,
"483. KC Thomas v A Varghse, 1974 Cr LJ 207 (Ker).",
"484. Vadivel v Packialakshmi, 1996 Cr LJ 300 (Mad).",
"485. Goss, (1860) 8 Cox 262.",
"486. Iridium India Telecom Ltd v Motorola Incorporated, (2011) 1 SCC 74 [LNIND 2010 SC 1012] :",
AIR 2011 SC 20 [LNIND 2010 SC 1012] .,
"487. Matilal Chakrabarti, (1950) 2 Cal 73 .",
"488. National Insurance Co v Narendra Kumar Jhanjari, 1990 Cr LJ 773 (Pat). The court followed,",
"State of Kerala v SA Pareed Pillai, AIR 1973 SC 326 : 1972 Cr LJ 1243 and Hari Prasad Chamaria v",
"Bishun Kumar Surekha, AIR 1974 SC 301 [LNIND 1973 SC 264] : 1974 Cr LJ 352 . VP Shrivastava",
"v Indian Explosives Limited, (2010) 10 SCC 361 [LNIND 2010 SC 920] : (2010) 3 SCC(Cr) 1290.",
"489. Maria Giles, (1865) 10 Cox 44; Khoda Bux v Bakeya Mundari, (1905) 32 Cal 941 .",
"490. Mohsinbhai, (1931) 34 Bom LR 313 : 56 Bom 204.",
"491. Mohsinbhai, (1931) 34 Bom LR 313 : 56 Bom 204.",
"492. SVL Murthy v State, (2009) 6 SCC 77 [LNIND 2009 SC 1167] : AIR 2009 SC 2717 [LNIND",
2009 SC 1167] .,
"493. Mohabat, (1889) PR No. 20 of 1889. Representation that accommodation would be",
provided to tourists and taking money from them in advance and then not providing,
"accommodation could amount to cheating, hence, process not stopped. Sanjiv Bharadwaj v",
"Hasmukhlal Rambhai Patel, 1989 Cr LJ 1892 (Guj); Anil Ritolla v State of Bihar, (2007) 10 SCC 110",
"[LNIND 2007 SC 1096] , such offence can be committed even in the making of a commercial",
transaction. The allegations in the complaint did not show any intention to induce a person to,
deliver property.,
"494. NM Chakraborty, 1977 Cr LJ 961 (SC) : AIR 1977 SC 1174 [LNIND 1977 SC 179] .",
"495. Harendra Nath Das v Jyotish Chandra Datta, (1924) 52 Cal 188 .",
496. Ibid.,
"497. Rajesh Bajaj v State, NCT of Delhi, AIR 1999 SC 1216 [LNIND 1999 SC 233] : 1999 Cr LJ",
1833 .,
"498. Suryalakshmi Cotton Mills Ltd v Rajvir Industries Ltd, (2008) 13 SCC 678 [LNIND 2008 SC",
36] : AIR 2008 SC 1683 [LNIND 2008 SC 36] .,
"499. KC Builders v CIT, (2004) 2 SCC 731 [LNIND 2004 SC 118] : AIR 2004 SC 1340 : (2004) 265",
ITR 562 [LNIND 2004 SC 118] : (2004) 1 KLT 596 .,
"500. State of Kerala v AP Pillai, 1972 Cr LJ 1243 (SC) : AIR 1973 SC 326 . Followed in Bimal",
"Kumar v Vishram Lekhraj, 1990 Cr LJ 444 (Bom), where dishonest intention in failing to furnish",
"""G"" form was not proved. The court referred to, Trilok Singh v Satya Deo Tripathi, AIR 1979 SC",
"850 : 1980 Cr LJ 822 and Ram Avtar Gupta v Gopal Das Taliwal, AIR 1983 SC 1149 : (1983) 2 SCC",
"431 ; Shyam Sundar v Lala Bhavan Kishore, 1989 Cr LJ 559 (All), post-dated cheques",
"dishonoured, intention at the outset to have them dishonoured not established. But see",
"Radhakishan Dalmia v Narayan, 1989 Cr LJ 443 (MP), where payment of post- dated cheques",
was stopped by the drawer and the court refused to quash proceedings because dishonest,
intention could be inferred.,
"501. Ajay Mitra v State of MP, AIR 2003 SC 1069 [LNIND 2003 SC 108] : 2003 Cr LJ 1249 .",
"502. Devendra v State of UP, (2009) 7 SCC 495 [LNIND 2009 SC 1158] : (2009) 3 SCC Cr 461.",
"Harmanpreet Singh Ahluwalia v State of Punjab, (2009) 7 SCC 712 [LNIND 2009 SC 1121] : 2009",
"Cr LJ 3462 , here also there was no element of wrongful intention in the transaction either at the",
initial stage or developing subsequently.,
"503. Raj Mangal Kushwaha v State of UP, 2010 Cr LJ 3611 (All).",
"504. Devendra v State of UP, 2009 (7) SCC 495 [LNIND 2009 SC 1158] 2009 (7) Scale 613",
[LNIND 2009 SC 1158] .,
505. GHCL Employees Stock Option Trust v India Infoline Ltd (2013) 4 SCC 505 [LNIND 2013 SC,
232] : AIR 2013 SC 1433 [LNIND 2013 SC 232] .,
506. Arun Bhandari v State of UP (2013) 2 SCC 801 [LNIND 2013 SC 18] : 2013 Cr LJ 1020 (SC);,
"Lee Kun Hee v State, AIR 2012 SC 1007 [LNINDORD 2012 SC 443] : (2012) 3 SCC 132 [LNIND",
2012 SC 89] .,
"507. Kuldip Singh v State, 1954 Cr LJ 299 (P&H).",
"508. Bishan Das, (1905) ILR 27 All 561.",
"509. TP Amina v P Nalla Thampy Thera Dr., 2003 Cr LJ 2945 (Ker).",
"510. Legal Remembrancer v Manmatha Bhusan Chatterjee, (1923) 51 Cal 250 ; Harendra Nath",
"Das v Jyotish Chandra Datta, (1924) 52 Cal 188 .",
"511. Ramji Lakhamsi v Harshadrai, (1959) 61 Bom LR 1648 .",
"512. Baboo Khan v State, (1961) 2 Cr LJ 759 .",
"513. Ram Jas, 1974 Cr LJ 1261 (SC); See also Bhujang, 1977 Cr LJ NOC 17 (Kant).",
"514. Surendra Meneklal v Bai Narmada, AIR 1963 Guj 239 [LNIND 1963 GUJ 55] .",
"515. Anja Match Industries v South Indian Locifer Match Works, 1999 Cr LJ 181 (Mad).",
"516. Mohd. Ibrahim v State of Bihar, (2009) 8 SCC 751 [LNIND 2009 SC 1774] : (2009) 3 SCC (Cr)",
929.,
"517. G v Rao v LHV Prasad, AIR 2000 SC 2474 [LNIND 2000 SC 429] : 2000 Cr LJ 3487 . See for",
"example, V Srinivasa Reddy v State of AP, AIR 1998 SC 2079 [LNIND 1998 SC 158] : 1998 Cr LJ",
"2918 , a case of bank fraud.",
518. Standard Chartered Bank v Directorate of Enforcement (2005) 4 SCC 405 : 2005 (5) Scale 97,
.,
"519. Iridium India Telecom Ltd v Motorola Incorporated, (2011) 1 SCC 74 [LNIND 2010 SC 1012] :",
AIR 2011 SC 20 [LNIND 2010 SC 1012] .,
520. Supra.,
521. CBI v Blue Sky Tie-up Pvt Ltd 2012 Cr LJ 1216 : AIR 2012 SC (Supp) 613.,
"522. Maksud Saiyed v State of Gujarat, 2008 (5) SCC 668 [LNIND 2007 SC 1090] : JT 2007 (11)",
SC 276 [LNIND 2007 SC 1090] .,
"523. Sharon Michael v State of Tamil Nadu, AIR 2008 SC (Supp) 688; R Kalyani v Janak C Mehta,",
2008 (14) Scale 85 [LNIND 2008 SC 2127] .,
"524. Jagdish Prasad v State of Bihar, 1990 Cr LJ 366 (Pat).",
"525. Krishnamurthy, AIR 1965 SC 333 [LNIND 1964 SC 95] .",
"526. Sushil Kumar Datta, 1985 Cr LJ 1948 (Cal).",
"527. State of UP v Ram Dhani, 1987 Cr LJ 933 (All).",
"528. Rajesh Bajaj v State NCT of Delhi, (1999) 3 SCC 259 [LNIND 1999 SC 233] ; Trisuns",
"Chemical Industry v Rajesh Agarwal, (1999) 8 SCC 686 [LNIND 1999 SC 840] .",
"529. Punit Pruthi v State, 2010 (1) Crimes 439 : 2010 Cr LJ 1111 (Del).",
"530. Manoranjan Das v State of Jharkhand, (2004) 12 SCC 90 : AIR 2004 SC 3623 : (2004) 121",
Comp. Cas 8 : 2004 Cr LJ 3042 .,
THE INDIAN PENAL CODE,
CHAPTER XVII OF OFFENCES AGAINST PROPERTY,
Of Theft,
Of Cheating,
[s 416] Cheating by personation.,
"A person is said to ""cheat by personation"" if he cheats by pretending to be some other",
"person, or by knowingly substituting one person for another, or representing that he or",
any other person is a person other than he or such other person really is.,
Explanation.—The offence is committed whether the individual personated is a real or,
imaginary person.,
ILLUSTRATIONS,
(a) A cheats by pretending to be a certain rich banker of the same name. A cheats by,
personation.,
"(b) A cheats by pretending to be B, a person who is deceased. A cheats by personation.",
COMMENT—,
To 'personate' means to pretend to be a particular person.531. As soon as a man by,
"word, act, or sign holds himself forth as a person entitled to vote with the object of",
"passing himself off as that person, and exercising the right which that person has, he",
"has personated him.532. If a person at Oxford, who is not a member of the university,",
"goes to a shop for the purpose of fraud, wearing a commoner's cap and gown, and",
"obtains goods, his appearing in a cap and gown is a sufficient false pretence although",
nothing passed in words.533.,
The person personated may be a real or an imaginary person.,
[s 416.1] Ingredients.—,
This section requires any one of the following essentials:,
(1) Pretention by a person to be some other person.,
(2) Knowingly substituting one person for another.,
(3) Representation that he or any other person is a person other than he or such,
other person really is.,
[s 416.2] CASES.—False representation at examination.—,
"Where A falsely represented himself to be B at a University Examination, got a hall-",
"ticket under B's name, and wrote papers in B's name, it was held that A was guilty of",
cheating by personation and forgery.534.,
[s 416.3] False Representation as bachelor.—,
It is not correct to say that without delivery of property there cannot be any cheating. A,
"bare reading of section 415, IPC, 1860, will show that if the person deceived is induced",
by reason of deception to do or omit to do anything which he would not do if he were,
not so deceived and if the act he has done being so deceived results in some damage,
"or harm to his body, mind, reputation or property, the offence of cheating would",
nevertheless be committed. Thus where the accused dishonestly induced the,
complainant and his daughter to go through the marriage ceremony professing himself,
"to be a bachelor while he had a wife living, it was held that his act amounted to an",
"offence both under sections 416 and 417, IPC, 1860, as harm was caused to the",
"complainant and his daughter to their body, mind, reputation and even to their",
"property.535. In this connection see discussion under head ""Explanation"" under section",
"415, ante.",
"531. Hague, (1864) 4B & S 715, 720.",
"532. Ibid, p. 721.",
"533. Barnard, (1837) 7 C & P 784.",
"534. Appasami, (1889) 12 Mad 151; Ashwini Kumar Gupta, (1937) 1 Cal 71 .",
"535. MNA Achar v Dr. DL Rajgopal, 1977 Cr LJ NOC 228 (Kant). Anil Sharma v SN Marwaha,",
(1995) 1 Cr LJ 163 (Del) complaint made after three years on the ground that the accused,
concealed the fact that he had a child from his first marriage held to be not maintainable.,
THE INDIAN PENAL CODE,
CHAPTER XVII OF OFFENCES AGAINST PROPERTY,
Of Theft,
Of Cheating,
[s 417] Punishment for cheating.,
Whoever cheats shall be punished with imprisonment of either description for a term,
"which may extend to one year, or with fine, or with both.",
COMMENT—,
This section punishes simple cases of cheating. Where there is delivery of any property,
"or destruction of any valuable security, section 420 is the proper section to apply.536.",
The accused made false representation to the complainant by way of promise to marry,
her and believing such promise she complied with his request by sharing the bed,
together. Consequently she became pregnant but he refused to marry her. The accused,
challenged the proceedings initiated against him under section 417. It was held that,
prima facie case was made out under the section.537.,
Certain letters were prepared on the letterhead of a Minister by the accused by which,
actors were invited to a cultural show. Letters did not carry the signature of the,
Minister. The Court said that the act of the accused did not cause nor was likely to,
cause any harm to any person in mind or body. His conviction under section 417 was,
held to be not proper.538. Only because accused issued cheques which were,
"dishonoured, the same by itself would not mean that he had cheated the complainant.",
"Assuming that such a statement had been made, the same, does not exhibit that there",
had been any intention on the part of the appellant herein to commit an offence under,
section 417 of the Penal Code.539. Where accused giving assurance of marriage to,
victim girl had undergone intercourse with victim and she would not have undergone,
intercourse had there been no such assurance of marriage by accused. Accused,
subsequently having disowned assurance given by him. It was held that ingredients of,
cheating under section 415 can be said to have been established. Accused held guilty,
of committing offence punishable under section 417 of Code.540. Where accused is,
liable to be convicted under section 376 on allegation sexual intercourse by false,
promise of marriage there cannot be any separate conviction under section 417.541.,
Though once the accused-appellant alleged failed to keep his promise she allowed him,
to commit sexual intercourse for the second time and invited her pregnancy. Not only,
"that, even after termination of pregnancy for the second time she again allowed the",
accused-appellant to have sexual intercourse with her and make her pregnant for the,
third time. Offence under section 417 not made out.542. Accused allegedly committed,
sexual intercourse on prosecutrix on pretext that he would provide temporary job of,
peon to her in bank which would be regularized after completion of one year. Though,
"the offence under section 376 is not made out, offence under section 417 is made",
out.543. Where accused wanted to marry prosecutrix and on her refusal committed,
"forcible sexual intercourse with her. But, if the promise of marriage was given and the",
"girl had succumbed on that account, by itself, may not amount to cheating. Besides",
"this, the girl has very specifically stated that even subsequently, she was ravished",
"against her wishes. Therefore, the theory of promise of marriage and the consent for",
"sexual intercourse will wither away, acquit the accused of the offence under section",
"417 of IPC, 1860 though he was convicted under section 376 IPC, 1860.544.",
536. No process was issued where the allegations were that the girl was represented to be as,
hale and hearty and it was found after the marriage that she was weak of sight and had urinary,
"infection. The complaint dismissed. Anilchandra Pitambardas v Rajesh, 1991 Cr LJ 487 (Bom).",
"537. Ravichandran v Mariyammal, 1992 Cr LJ 1675 (Mad).",
"538. Jibrial Diwan v State of Maharashtra, AIR 1997 SC 3424 [LNINDORD 1997 SC 149] : 1997 Cr",
LJ 4070 .,
"539. V Y Jose v State of Gujarat, AIR 2009 SC (Supp) 59. Allegation is accused cheated the",
complainant by not making of payment of money within time given at time of receiving of loan.,
It is held that fraudulent dishonest intention of accused at time of issuance of cheques is to be,
proved to book her for offence of cheating and there is no such intention proved on the part of,
accused. Accused cannot be punished under sec 417 or 420 of IPC Kanailal Bhattacharjee v,
"Bhajana Biswas, 2012 Cr LJ 4158 (Gau).",
"540. Manik Das Baishnav v State of Tripura, 2012 Cr LJ 1954 (Gau); Bipul Medhi v State of",
"Assam, 2008 Cr LJ 1099 (Gau); Sukhamay Manna v State of West Bengal, 2010 Cr LJ 829 (Cal)-",
question cannot be decided in revisional jurisdiction against framing of charge.,
"541. Ravi v State by Inspector of Police, 2010 Cr LJ. 3493 (Mad).",
"542. Kanchan Deb v State of Tripura, 2011 Cr LJ 3853 (Gau); K Ashok Kumar Reddy v State of AP,",
"2008 Cr LJ 2783 (AP); P Govindan v State by Inspector of Police, 2008 Cr LJ 4263 (Mad).",
"543. Girish Kumar Sharan v State of Jharkhand, 2010 Cr LJ 4215 (Jha); Subrato Ghosh v State of",
"Jharkhand, 2011 Cr LJ 3637 (Jha).",
"544. Zindar Ali SK v State of West Bengal, 2009 (3) SCC 761 [LNIND 2009 SC 249] : AIR 2009 SC",
1467 [LNIND 2009 SC 249] .,
THE INDIAN PENAL CODE,
CHAPTER XVII OF OFFENCES AGAINST PROPERTY,
Of Theft,
Of Cheating,
[s 418] Cheating with knowledge that wrongful loss may ensue to person,
whose interest offender is bound to protect.,
Whoever cheats with the knowledge that he is likely thereby to cause wrongful loss to,
"a person whose interest in the transaction to which the cheating relates, he was",
"bound, either by law, or by a legal contract, to protect, shall be punished with",
"imprisonment of either description for a term which may extend to three years, or with",
"fine, or with both.",
COMMENT—,
"Under section 418 of IPC, 1860 who ever cheats with the knowledge that is likely",
thereby to cause wrongful loss to the person whose interest in the transaction to which,
"the cheating relates he was bound either by law or by legal contract to protect, shall be",
punished with imprisonment or fine or with both.545. This section applies to cases of,
"cheating by guardians, trustees, solicitors, agents, and the manager of a Hindu family,",
directors or managers of a bank in fraud of the shareholders. It is the abuse of trust,
that is met with severe punishment.,
[s 418.1] False balance-sheet for inducing to renew deposit.—,
"Where the directors, manager and accountant dishonestly that is to obtain wrongful",
gain for themselves or to cause wrongful loss to others put before the shareholders,
balance sheets which they knew to be materially false and misleading and likely to,
mislead the public as to the condition of the bank and concealed its true condition and,
"thereby induced depositors to allow their money to remain in deposit with the bank,",
they were held liable under this section.546. In Medchl Chemicals & Pharma Pvt Ltd v,
"Biological E Ltd,547. wherein it was observed that: ""In order to attract the provisions of",
"section 418 and section 420 the guilty intent, at the time of making the promise is a",
requirement and an essential ingredient thereto and subsequent failure to fulfil the,
promise by itself would not attract the provisions of section 418 or section 420. Mens,
rea is one of the essential ingredients of the offence of cheating under section 420. As,
a matter of fact Illustration (g) to section 415 makes the position clear enough to,
indicate that mere failure to deliver in breach of an agreement would not amount to,
"cheating but is liable only to a civil action for breach of contract.""",
"545. Behram Bomanji Dubash v State of Karnataka, 2010 Cr LJ 3963 (KAR).",
"546. Moss, (1893) 16 All 88 . Refusal by bank officers, for reasons beyond their control, to take",
a house on rent after promising was not punishable under this section though the landlord,
relying on the promise spent money on finishing the house as desired. It was a matter for a civil,
"action. S Shankarmani v Nibar Ranjan Parida, 1991 Cr LJ 65 (Ori).",
"547. Medchl Chemicals & Pharma Pvt Ltd v Biological E Ltd, 2000 (3) SCC 269 [LNIND 2000 SC",
373] .,
THE INDIAN PENAL CODE,
CHAPTER XVII OF OFFENCES AGAINST PROPERTY,
Of Theft,
Of Cheating,
[s 419] Punishment for cheating by personation.,
Whoever cheats by personation shall be punished with imprisonment of either,
"description for a term which may extend to three years, or with fine, or with both.",
COMMENT—,
"If a person cheats by pretending to be some other person, or representing that he is a",
"person other than he, then, such person can be charged with the allegation of 'cheating",
"by personation' (section 416, IPC, 1860) and punished under section. 419, IPC, 1860.",
[s 419.1] Overlapping.—,
"The offences under sections 170, IPC, 1860 and 419, IPC, 1860 overlap each other.",
"Cheating by personation (section 419, IPC, 1860) is an offence of general character,",
"under which a person may pretend to be anyone, other than what he really is. But,",
"cheating by pretending to be a public servant (section 170, IPC, 1860) is a specific",
"offence, where one pretends to be a public servant and has all the ingredients of",
"cheating by personation under section 419, IPC, 1860.548.",
"548. I K Narayana v State of Karnataka, 2013 Cr LJ 874 (Kar).",
THE INDIAN PENAL CODE,
CHAPTER XVII OF OFFENCES AGAINST PROPERTY,
Of Theft,
Of Cheating,
[s 420] Cheating and dishonestly inducing delivery of property.,
Whoever cheats and thereby dishonestly induces the person deceived to deliver any,
"property to any person, or to make, alter or destroy the whole or any part of a valuable",
"security, or anything which is signed or sealed, and which is capable of being",
"converted into a valuable security, shall be punished with imprisonment of either",
"description for a term which may extend to seven years, and shall also be liable to",
fine.,
COMMENT—,
Simple cheating is punishable under section 417. But where there is delivery or,
destruction of any property or alteration or destruction of any valuable security,
resulting from the act of the person deceiving this section comes into operation. For an,
offence under this section it must be proved that the complainant parted with his,
property acting on a representation which was false to the knowledge of the accused,
and that the accused had a dishonest intention from the outset.549. In Sonbhandra,
"Coke Products v State of UP,550. it was held that offence of cheating can be made out",
only if it has been shown that damage or harm has been caused to the person so,
deceived.,
The Supreme Court has held that the word 'property' in this section does not,
"necessarily mean that the thing, of which a delivery is dishonestly desired by the",
"person who cheats, must have a money value or a market value, in the hand of the",
person cheated. The communicated order of assessment received by an assessee is,
"""property"".551.",
An admission card to sit for an Examination of a University is property within the,
meaning of this section; though the admission card as such has no pecuniary value it,
has immense value to the candidate for the examination.552.A driving licence or its,
duplicate553. had been held to be property within the meaning of this section. Where a,
bank was defrauded of a large amount and the signatures of the accused bank,
"manager on drafts used for the purpose were proved beyond doubt to be his signature,",
his conviction under the section was held to be proper.554. Where a builder was,
"defrauded by a conspiring team of financiers by giving him counterfeit currency,",
"conviction under this section was fully warranted.555. In the ordinary course of things,",
relationship of banker and customer is that of debtor and creditor and not that of,
trustee and beneficiary. Payment of money against cheques already issued by the,
customer at a time when the bank had received notice to close the account did not in,
itself amount to cheating the customer in conspiracy with the payee.556.,
[s 420.1] Intention to deceive at the time of inducement.—,
The primary requirement to make out an offence of cheating under section 415,
"punishable under section 420 IPC, 1860 is dishonest/fraudulent intention at the time of",
inducement is made.557. The intention to deceive should be in existence at the time,
when the inducement was made. Mere failure to keep up a promise subsequently,
cannot be presumed as leading to cheating.558.,
The intention to deceive was held to be not there either at the initial stage or any,
subsequent stage in the mere fact of transferring a portion of the property over which,
the transferors had no complete ownership. The sale could be binding only to the,
extent of the transferor's right.559. Where bogus receipts were issued for part payment,
"of the price of the property over which the recipient had no ownership and therefore, no",
"right to sell, he was held to be guilty of the offence under the section.560.",
[s 420.2] Dishonour of cheque.—,
"A cheque was returned unpaid by the bank under the remark ""payment stopped by",
"drawer"". The complainant alleged that the cheque was dishonoured because the",
drawer of the cheque had no sufficient balance or arrangement. The Court refused to,
quash the complaint. Issuing a cheque without arrangement of sufficient funds may,
amount to cheating.561. Where goods were delivered in a normal sales transaction and,
the buyer had also become the owner of the goods because the transfer of ownership,
"was not linked with payment, it was held that the fact that a cheque for the price, which",
"was issued in due course, bounced, did not constitute the offence of cheating because",
there was no evidence of intention to cheat at the outset of the transaction.562.,
Dishonest intention cannot be inferred from the bouncing of a cheque issued for an,
existing debt. The conviction of the accused for return of such cheque was not,
proper.563.,
A cheque was handed over in a share transaction by the accused. The cheque was,
signed by his wife. The person who passed the cheque was held guilty of cheating,
because of the dishonour but not his wife because she was not seen anywhere near,
the transaction.564.,
"[s 420.3] Section 138, NI Act and section 420 IPC, 1860.—",
"In the prosecution under section 138 Negotiable Instruments Act, 1881, the mens rea,",
"i.e., fraudulent or dishonest intention at the time of issuance of Cheque is not required",
"to be proved. But in a prosecution under section 420 IPC, 1860 the issue of mens rea",
may be relevant. There may be some overlapping of facts in the cases under section,
"420 IPC, 1860 and section 138 of Negotiable Instruments Act, 1881, but ingredients of",
"offences are entirely different. Thus, the subsequent case is not barred.565.",
[s 420.4] Conversion of Cheques.—,
Cheques issued by a company in the name of a supplier were converted by an,
employee of the company by opening an account in the name of the supplier. The,
opening of the account was facilitated by an employee of the bank. Both of them were,
held to be joint offenders. The order of convicting both of them was held to be not,
improper.566.,
[s 420.5] Sections 417 and 420.—,
"In every case when property is delivered by a person cheated, there must always be a",
stage when the person makes up his mind to give the property on accepting the false,
representation made to him. It cannot be said that in such cases the person,
committing the offence can only be tried for the simple offence of cheating under,
section 417 and cannot be tried under this section because the person cheated parts,
with his property subsequent to making up his mind to do so.567.,
[s 420.6] Goods received under hire-purchase.—,
Breach of the conditions of a hire purchase agreement under which goods or property,
has been received does not amount to an offence under this section.568.,
Where the complainant stated that the accused had taken the vehicle on hire-purchase,
but failed and neglected to pay certain instalments and the Court found that there was,
"no dishonest intention on the part of the hirer at the time of the transaction, the",
"complaint was quashed, the Court observed that it was open to the complainant to",
proceed against the hirer before a civil Court for appropriate relief.569.,
[s 420.7] Arbitration clause.—,
The presence of an arbitration clause in an agreement cannot prevent criminal,
prosecution of a person if the ingredients of the offence are made out to the prima,
facie extent.570.,
[s 420.8] Financial crime.—,
The accused an investment advisor charged with dishonestly concealing material facts,
relating to bonds. The question was whether he had committed the alleged act of,
"dishonesty contrary to the Financial Services Act, 1986 section 47(1). Such",
determination would have to include considering his intentions as to his future,
"conduct. It was held that the phrase ""material facts"" within section 47(1) was to be",
widely construed so as to include his present intention as to future conduct. Dishonest,
"concealment was also included within ""material facts"". It was required under section",
4(A) of the 1964 Act to consider his intentions and it was appropriate for the jury to,
"consider such intentions, not in relation to dishonesty, but in relation to the victims of",
the alleged acts in connection with the particulars of the offence.571.,
[s 420.9] Finance company's inability to pay back deposits.—,
A finance company was not able to pay back deposit owing to its poor financial,
condition as found by the Company Law Board and Reserve Bank. The Court found no,
evidence of any intention to commit criminal breach of trust or any dishonest,
inducement. The complaint was held liable to be quashed.572.,
Issuing cheques with knowledge that they would be dishonoured amounts to an,
offence under this section.573. Offence under section 420 was alleged against the,
"accused for issuance of cheque, who died and his business was inherited by his son.",
Police filed final report stating that the son is liable. The Court held that as it is well-,
settled law that a criminal's culpable offence shall not be inherited by his heirs. Once,
"the accused died, the charge against the accused has been dismissed as abates.574.",
[s 420.10] Legal opinion given by Advocate.—,
Allegation is that advocate submitted false legal opinion to the bank in respect of the,
housing loans in the capacity of a panel advocate and did not point out actual,
ownership of the properties in question. The liability against an opining advocate arises,
only when the lawyer has an active participant in a plan to defraud the bank. Merely,
"because his opinion may not be acceptable, he cannot be made liable for criminal",
"prosecution, particularly, in the absence of tangible evidence that he associated with",
other conspirators. There is no prima facie case for proceeding in respect of the,
charges alleged against him. Proceedings quashed.575.,
"[s 420.11] Fraudulent inducement for deposits, each deposit a separate",
offence.—,
"Where a fraudulent finance company collects deposits, there is a separate offence",
towards each depositor. The fact that the maximum punishment of five years is,
prescribed for a single offence of a cheating could not be pressed into service by the,
accused for seeking relief.576.,
[s 420.12] Punishment.—,
The accused obtained payments from the Government by sending bills with bogus,
railway receipt numbers. This was a false representation which amounted to cheating.,
A long period of 30 years had passed since then. The sentence of one year,
"imprisonment was reduced to the period already undergone but the fine of Rs. 15,000",
"was maintained.577. In a conspiracy to benefit from a forged will, the Court imposed",
maximum possible punishment.578.,
[s 420.13] Pendency of civil suit.—,
A civil suit for specific performance was already pending against the party who caused,
the deception. The Court said that criminal proceeding was not to be quashed on that,
basis alone.579.,
[s 420.14] Proceedings quashed because the dispute is purely civil in nature.—,
It may be true that where the Court finds that the dispute between the parties was,
"purely of civil nature, it may not allow criminal proceedings to go on. But no such law",
can be laid down because a case may be such that both a civil action and criminal,
"complaint may be maintainable, the cause of action for both being the same.580. Mere",
breach of contract does not necessarily involve cheating.581. Where the dispute is,
"essentially about the profit of the hotel business and its ownership, it is purely civil in",
"nature and hence, the proceedings are quashed.582. Where, complaint is about the non-",
"payment after placing orders for fabrication work on complainant, the complaint would",
only reveal that the allegations as contained in the complaint are of civil nature and do,
"not prima facie disclose commission of alleged criminal offence under section 420 IPC,",
1860. Proceedings quashed.583. Allegation was that appellant had executed a sale,
deed in his favour in respect of a plot of land which had already been the subject,
"matter of a previous transfer, Court held that he can at best question such transfer and",
claim damages in respect thereof from the vendor of the appellant by way of,
"appropriate damages, but an action in the Criminal Court would not lie in the absence",
of any intention to cheat and/or defraud.584. An agreement for sale of land and the,
earnest money paid to the owner as part consideration and possession of the land,
having been transferred to the purchasers/complainants and the subsequent,
"unwillingness of the owner to complete the same, gave rise to a liability of a civil nature",
"and the criminal complaint was, therefore, not competent.585.",
[s 420.15] Using forged marks sheet.—,
The petitioner knew that they were submitting a forged marks-sheet for the purpose of,
securing a seat in the medical college. Their conviction under sections 420 and 471,
(using as genuine a forged document) was held to be proper. Failure in securing the,
purpose would not result in acquittal.586.,
[s 420.16] Checking in under false pretences.—,
The allegation against the accused was that he made a representation to the railway,
retiring room attendant that he was an Assistant Commercial Manager in railways and,
"got a room allotted to him on that basis. Thus, a prima facie case of cheating was",
made out. The complaint was not to be quashed.587.,
[s 420.17] Juristic persons.—,
The punishment of imprisonment provided under the section cannot be imposed on a,
"juristic person, a construction company in this case.588.",
In order to hold persons liable vicariously for any offence involved in the affairs of the,
"company, it is not enough to show that they were running the affairs of the company.",
All the ingredients of the offence must be proved against them. The company has also,
"to be made a party to the proceeding. In this case, there were only individual",
accusations against the persons concerned.589.,
[s 420.18] Previous sanction.—,
The offence of cheating under section 420 or for that matter offences relatable to,
"section 467, section 468, section 471 and section 120B can by no stretch of",
imagination by their very nature be regarded as having been committed by any public,
"servant while acting or purporting to act in discharge of official duty. Hence, the",
"sanction of the competent authority under section 197 Cr PC, 1973 is not required.590.",
[s 420.19] Compounding.—,
Where the allegation was that accused with the assistance of known officials of AICTE,
had produced forged and fraudulent document to obtain recognition of the mentioned,
"institution from AICTE and thereby cheated AICTE, the application for compounding of",
offence could not have been considered by the learned Magistrate without affording an,
opportunity of hearing to the AICTE. It is not the CBI which has been cheated by the,
action of the respondent No. 1 but in fact the AICTE.591.,
[s 420.20] Section 420 with non-compoundable offences.—,
"Simply because an offence is not compoundable under section 320 Cr PC, 1973 is by",
itself no reason for the High Court to refuse exercise of its power under section 482 Cr,
"PC, 1973. That power can be exercised in cases where there is no chance of recording",
a conviction against the accused and the entire exercise of a trial is destined to be an,
exercise in futility.592.,
"549. Mobarik Ali, (1958) SCR 328 [LNIND 1957 SC 81] .",
"550. Sonbhandra Coke Products v State of UP, 1994 Cr LJ 657 (All).",
"551. Ishwarlal Girdharilal, 1969 (71) Bom LR 52 : AIR 1969 SC 40 [LNIND 1968 SC 143] ; see also",
"NM Chakraborty, 1977 Cr LJ 961 (SC).",
"552. Abhayanand, (1961) 2 Cr LJ 822 SC.",
"553. Ramchander, AIR 1966 Raj 182 [LNIND 1965 RAJ 67] .",
"554. Adithela Immanuel Raju v State of Orissa, 1992 Cr LJ 243 .",
"555. Nellai Ganesan v State of TN, 1991 Cr LJ 2157 (Mad).",
"556. ANZ Grindlays Bank v Shipping and Clearing (Agent) Pvt Ltd, 1992 Cr LJ 77 (Cal).",
"557. Annamalai v State of Karnataka, 2011 Cr LJ 692 (SC) : (2010) 8 SCC 524 [LNIND 2010 SC",
745] .,
"558. SN Palantikar v State of Bihar, AIR 2001 SC 2960 [LNIND 2001 SC 2381] : 2001 Cr LJ 4765 .",
"Hira Lal Hari Lal Bhagwati v CBI, New Delhi, 2003 (5) SCC 257 [LNIND 2003 SC 499] .",
"559. Ramesh Dutt v State of Punjab, (2009) 15 SCC 429 [LNIND 2009 SC 1475] .",
"560. N Devindrappa v State of Karnataka, (2007) 5 SCC 228 [LNIND 2007 SC 602] : AIR 2007 SC",
1741 [LNIND 2007 SC 602] : 2007 Cr LJ 2949 .,
"561. Thomas Verghese v P Jerome, 1992 Cr LJ 3080 (Ker). Nemichand Swaroopchand v TH",
"Raibhagi, 2001 Cr LJ 4301 (Kant), a cheque issued for return of articles in a business",
"transaction dishonoured, there was nothing to show any fraudulent or dishonest intention, no",
"offence made out. Jasmin B Shah v State of Jharkhand, 2003 Cr LJ 621 (Jhar), dishonour of",
"cheque, investigation not complete, charge sheet not submitted, prayer for quashing the",
proceeding rejected.,
"562. HICEL Pharma Ltd v State of AP, 2000 Cr LJ 2566 (AP). Rajendra Vasantrao Khoda, v",
"Laxmikant, 2000 Cr LJ 1196 (Bom) a complaint as to dishonour of cheque was not quashed,",
"ingredients of cheating being made out. Subodh S Salaskar v Jayaprakash M Shah, (2008) 13",
SCC 689 [LNIND 2008 SC 1549] : AIR 2008 SC 3086 [LNIND 2008 SC 1549] : (2008) KLT 616 :,
"2008 Cr LJ 3953 post-dated cheque issued in 1996, presented in 2001, dishonoured because",
"account closed, but money had been paid back before that, no cheating, subsequent closing",
was inconsequential.,
"563. Venkatchalam v State, 1998 Cr LJ 3189 (Mad). Bipin Singh v Chongitham, 1997 Cr LJ 724 :",
"AIR 1997 SC 1448 [LNIND 1996 SC 1690] , representation by the accused so as to create public",
belief that a particular writing was that of a certain other person and not that he had himself,
written that book. No forgery or cheating. Mintu Singha Roy v Tenzing Dolkar; 2012 Cr LJ 3115,
(Sik) regarding the bounced cheque it was condoned as 50% of payment is received by the,
complainant,
"564. Devender Kumar Singla v Baldev Krishna Singla, AIR 2004 SC 3084 [LNIND 2004 SC 228] :",
(2005) 9 SCC 15 [LNIND 2004 SC 228] .,
"565. Sangeetaben Mahendrabhai Patel v State of Gujarat, (2012) 7 SCC 621 [LNIND 2012 SC",
1473] : AIR 2012 SC 2844 [LNIND 2012 SC 1473] ; See the other view in Kolla Veera Raghav Rao v,
"Gorantla Venkatewwara Rao, (2011) 2 SCC 703 [LNIND 2011 SC 128] : 2011 Cr LJ 1094 .",
"566. Vadivelu v State of TN, 1999 Cr LJ 369 (Mad).",
"567. BS Dhaliwal, (1967) 1 SCR 211 [LNIND 1966 SC 165] .",
"568. Abdul Rahim v Inspector of Police, 1992 Cr LJ 370 (Mad). OPTS Marketing Pvt Ltd v State of",
"AP, 2001 Cr LJ 1489 (AP), prosecution under section 420, IPC, 1860 is still possible after the",
"introduction of section 138 in the Negotiable Instruments Act, if the ingredients of the offence",
"are satisfied, the complaint cannot be quashed.",
"569. Mahesh Kumar v State of Karnataka, 2003 Cr LJ 528 (Kant).",
"570. SN Palanitkar v State of Bihar, AIR 2001 SC 2960 [LNIND 2001 SC 2381] : 2001 Cr LJ 4765 .",
"571. R v Central Criminal Court, (2002) EWHC 548 : (2002) 2 Cr App. R 12 [QBD (Admin. Ct)].",
"572. Nilesh Lalit Parekh v State of Gujarat, 2003 Cr LJ 1018 (Guj); Mohd. Shaf-at Khan v National",
"Capital Territory of Delhi, (2007) 13 SCC 354 [LNIND 2007 SC 924] , collection by fraud company,",
the court said that it would be appropriate to work out modalities as to how the properties of the,
"company could be sold to get the highest price, so that the dues of the depositors and others",
could be paid back.,
"573. Ramprasad Chatterjee v Md. Jakir Kureshi, 1987 Cr LJ 1485 (Cal). But otherwise a cheque",
"is not a representation that there is balance in the account. GK Mohanty v Pratap Kishore Das,",
1987 Cr LJ 1446 (Ori). Where cheques were given subsequently to the transaction and there,
"was no inducement at the stage of negotiations, prosecution under the section was quashed,",
"MS Natrajan v Ramasis Shaw, (1995) 2 Cr LJ 2011 (Cal). S Muthu Kumar v State of TN, (1995) 1",
Cr LJ 350 (Mad) purchasing goods against post-dated cheques knowing that they would not be,
honoured is a ground for registering a complaint and the complaint is not liable to be quashed.,
"574. Lakshmi Metal Works v State, 2016 Cr LJ 2730 (Mad) : IV (2016) CCR 282 (Mad).",
"575. Central Bureau of Investigation Hyderabad v K Narayana Rao, 2012 Cr LJ 4610 : (2012) 9",
SCC 512 [LNIND 2012 SC 569] .,
"576. Narinderjit Singh v UOI, AIR 2001 SC 3810 [LNIND 2001 SC 2325] .",
"577. Kuldip Sharma v State, 2000 Cr LJ 1272 (Del).",
"578. R v Spillman, (2001) 1 Cr App R (S) 139 [CA (Crim Div)]. R v Ball, (2001) 1 Cr App R (S)",
49[CA (Crim Div)] serious custodial punishment awarded where the accused persons deceived,
81 year old lady by receiving several times more money than the actual worth of the repair work,
done. The sentences correctly reflected that both the accused were jointly part of the,
"conspiracy which concerned an extremely serious fraud, an enormous sum of money and the",
worst possible breach of trust. The report had been considered and the judge was entitled to,
"decide what weight should be attached to the evidence. Rajamani v Inspector of Police, 2003 Cr",
"PC 2002 (Mad), freezing of the accounts of third parties was held to be illegal.",
"579. Vitoori Pradeep Kumar v Kaisula Dharmaiah, 2001 Cr LJ 4948 (SC).",
"580. VR Dalal v Yougendra Naranji Thakkar, (2008) 15 SCC 625 [LNIND 2008 SC 1222] : AIR 2008",
"SC 2793 [LNIND 2008 SC 1222] . In the relations between partners in opening and closing a firm,",
the essential ingredients of the offence of criminal breach of trust and cheating were missing.,
"581. VY Jose v State of Gujarat, (2009) 3 SCC 78 [LNIND 2008 SC 2435] : (2009) 1 SCC Cr 996.",
"Dalip Kaur v Jagnar Singh, (2009) 14 SCC 696 [LNIND 2009 SC 1409] : AIR 2009 SC 3191 [LNIND",
"2009 SC 1409] , mere failure to refund the amount of advance which became due constituting",
breach of contract did not amount to cheating or criminal breach of trust. B Suresh Yadav v,
"Sharifa Bee, (2007) 13 SCC 107 [LNIND 2007 SC 1238] : AIR 2008 SC 210 [LNIND 2007 SC 1238]",
": 2008 Cr LJ 431 , dispute of civil nature, complaint was an abuse of process, quashed.",
"582. Paramjeet Batra v State of Uttarakhand, JT 2012 (12) SC 393 [LNIND 2012 SC 812] : 2012",
"(12) Scale 688 [LNIND 2012 SC 812] ; Hussainbeg Hayatbeg Mirza v State of Gujarat, 2013 Cr LJ",
1090 (SC) - proceedings quashed since there were no ingredients or elements of criminal,
"offence; to the same effect VP Shrivastava v Indian Explosives Limited, (2010) 10 SCC 361",
[LNIND 2010 SC 920] : (2010) 3 SCC (Cr) 1290.,
"583. Thermax Ltd v KM Johny, (2011) 13 SCC 412 [LNIND 2011 SC 947] : (2012) 2 SCC (Cr) 650;",
but where the allegation is about the execution of fictitious sale deeds the purpose of which,
"was to make unlawful gain, the question whether the respondent was aware that such deeds",
"were executed for getting lawful gain, which may cause injury to another person as defined",
"under section 44 IPC, 1860 is a matter which can be established only on adducing evidence.",
"Order quashing the proceedings set aside [State of Madhya Pradesh v Surendra Kori, (2012) 10",
SCC 155 [LNIND 2012 SC 681] : 2013 Cr LJ 167 : AIR 2012 SC (Supp) 949; Joseph Salvaraj A v,
"State of Gujarat, AIR 2011 SC 2258 [LNIND 2011 SC 576] : (2011) 7 SCC 59 [LNIND 2011 SC 576]",
"; Udai Shankar Awasthi v State of UP, (2013) 2 SCC 435 [LNIND 2013 SC 22] 2013 (1) Scale 212",
[LNIND 2013 SC 22] .,
"584. Rama Devi v State of Bihar, (2010) 12 SCC 273 [LNIND 2010 SC 875] : AIR 2010 SC (Supp)",
"83; Kishan Singh v Gurpal Singh, (2010) 8 SCC 775 [LNIND 2010 SC 747] : AIR 2010 SC 3624",
[LNIND 2010 SC 747] - After losing in civil suit FIR filed with the sole intention of harassing the,
respondents and enmeshing them in long and arduous criminal proceedings. Proceedings,
quashed.,
"585. Nageshwar Prasad Singh v Narayan Singh,k (1998) 5 SCC 694 ; distinguished on facts in SP",
"Gupta v Ashutosh Gupta, (2010) 6 SCC 562 [LNIND 2010 SC 507] : (2010) 3 SCC (Cr) 193.",
"586. AS Krishna v State of Kerala, 1998 Cr LJ 207 (Ker). The incident was 17 years old. The",
sentence of 1 year and 2 years was reduced to the period of three months. Premlata v State of,
"Rajasthan, 1998 Cr LJ 1430 (Raj) using false certificate to secure an appointment.",
"587. Develle Venkateswarlu v State of AP, 2000 Cr LJ 2929 (AP).",
"588. Essar Constructions Ltd v CBI, 1999 Cr LJ 1861 (Bom).",
"589. R Kalyani v Janak C Mehta, (2009) 1 SCC 516 [LNIND 2008 SC 2127] : (2009) 1 SCC Cr 567;",
"MAA Annamalai v State of Karnataka, (2010) 8 SCC 524 [LNIND 2010 SC 745] : 2011 Cr LJ. 692",
(SC).,
"590. Om Dhankar v State of Haryana, (2012) 11 SCC 252 [LNINDORD 2012 SC 439] : 2012 (3)",
"Scale 363 [LNINDORD 2012 SC 439] relied on Prakash Singh Badal v State of Punjab, 2007 (1)",
SCC 1 [LNIND 2006 SC 1091] : AIR 2007 SC 1274 [LNIND 2006 SC 1091] .,
"591. All India Council for Technical Education v Rakesh Sachan, 2013 (2) Scale 15 .",
"592. AIR 2012 SC 499 [LNIND 2011 SC 1158] ; Jayrajsinh Digvijaysinh Rana v State of Gujarat,",
"2012 (6) Scale 525 [LNIND 2012 SC 417] : 2012 CR LJ 3900 ; Shiji @ Pappu v Radhika, 2011 (10)",
SCC 705 [LNIND 2011 SC 1158] .,
THE INDIAN PENAL CODE,
CHAPTER XVII OF OFFENCES AGAINST PROPERTY,
Of Theft,
Of Fraudulent Deeds and Dispositions of Property,
[s 421] Dishonest or fraudulent removal or concealment of property to prevent,
distribution among creditors.,
"Whoever dishonestly or fraudulently removes, conceals or delivers to any person, or",
"transfer or causes to be transferred to any person, without adequate consideration,",
"any property,1 intending thereby to prevent, or knowing it to be likely that he will",
"thereby prevent, the distribution of that property according to law among his creditors",
"or the creditors of any other person, shall be punished with imprisonment of either",
"description for a term which may extend to two years, or with fine, or with both.",
COMMENT—,
This and the three following sections deal with fraudulent conveyances referred to in,
"section 53 of the Transfer of Property Act, 1882 and the Presidency- towns and",
Provincial Insolvency Acts.,
This section specially refers to frauds connected with insolvency. The offence under it,
consists in a dishonest disposition of property with intent to cause wrongful loss to the,
creditors. It will cover benami transactions in fraud of creditors. It will apply to property,
both movable and immovable.,
Compare sections 205–210 with sections 421–424 as they are similar in character.,
"The former sections deal with fraud on Courts, the latter, with fraud on creditors.",
[s 421.1] Ingredients.—,
To prove an offence under this section the prosecution must show:—,
"1. That the accused removed, concealed or delivered the property or that he transferred",
it or caused it to be transferred to someone.,
2. That such transfer was without adequate consideration.,
3. That the accused thereby intended to prevent or knew that he was thereby likely to,
prevent the distribution of that property according to law among his creditors or,
creditors of another person.,
4. That he acted dishonestly and fraudulently.593.,
1. 'Property'.—This word includes a chose in action. The right to cut trees under an,
agreement for the purpose of making charcoal from wood is movable property.594.,
"593. Ramautar Chaukhany, 1982 Cr LJ 2266 (Gau).",
"594. Manchersha v Ismail, (1935) 60 Bom 706, 38 Bom LR 168.",
THE INDIAN PENAL CODE,
CHAPTER XVII OF OFFENCES AGAINST PROPERTY,
Of Theft,
Of Fraudulent Deeds and Dispositions of Property,
[s 422] Dishonestly or fraudulently preventing debt being available for,
creditors.,
Whoever dishonestly or fraudulently prevents any debt or demand due to himself or to,
any other person from being made available according to law for payment of his debts,
"or the debts of such other person, shall be punished with imprisonment of either",
"description for a term which may extend to two years, or with fine, or with both.",
COMMENT—,
"This section, like the preceding section, is intended to prevent the defrauding of",
creditors by masking property. Any proceedings to prevent the attachment and sale of,
debts due to the accused will fall under this section. The offence consists in the,
dishonest or fraudulent evasion of one's own liability.,
THE INDIAN PENAL CODE,
CHAPTER XVII OF OFFENCES AGAINST PROPERTY,
Of Theft,
Of Fraudulent Deeds and Dispositions of Property,
[s 423] Dishonest or fraudulent execution of deed of transfer containing false,
statement of consideration.,
"Whoever dishonestly or fraudulently signs, executes or becomes a party to any deed",
"or instrument which purports to transfer or subject to any charge any property, or any",
"interest therein, and which contains any false statement relating to the consideration",
"for such transfer or charge, or relating to the person or persons for whose use or",
"benefit it is really intended to operate, shall be punished with imprisonment of either",
"description for a term which may extend to two years, or with fine, or with both.",
COMMENT—,
"This section deals with fraudulent and fictitious conveyances and trusts. Under it, the",
dishonest execution of a benami deed is punishable. Where the consideration for the,
"sale of immovable property was, with the consent of the purchaser, exaggerated in a",
"deed of sale in order to defeat the claim of the pre-emptor, it was held that the",
purchaser was guilty of this offence.595.,
"The scope of section 423, IPC, 1860 deals with two specific frauds in the execution of",
"deeds or instruments of transfer or charge, namely, (i) false recital as to consideration",
and (ii) false recital as to the name of beneficiary.596.,
The word 'consideration' does not mean the property transferred. An untrue assertion in,
a transfer deed that the whole of a plot of land belonged to the transferor is not a,
statement relating to the consideration for the transfer and is not an offence under this,
section.597.,
"595. Gurditta Mal, (1901) PR No. 10 of 1902; Mahabir Singh, (1902) 25 All 31 .",
"596. Mukesh Dhirubhai Ambani v State of Orissa, 2005 Cr LJ 2902 (Ori).",
"597. Mania Goundan, (1911) 37 Mad 47.",
THE INDIAN PENAL CODE,
CHAPTER XVII OF OFFENCES AGAINST PROPERTY,
Of Theft,
Of Fraudulent Deeds and Dispositions of Property,
[s 424] Dishonest or fraudulent removal or concealment of property.,
Whoever dishonestly or fraudulently conceals or removes any property of himself or,
"any other person, or dishonestly or fraudulently assists in the concealment or removal",
"thereof, or dishonestly releases any demand or claim to which he is entitled, shall be",
punished with imprisonment of either description for a term which may extend to two,
"years, or with fine, or with both.",
COMMENT—,
This section provides for cases not coming within the purview of sections 421 and 422.,
It contemplates such a concealment or removal of property from the place in which it is,
"deposited, as can be considered fraudulent. Where one of the several partners removed",
"the partnership books at night, and when questioned denied having done so;598. where",
"a judgment-debtor, whose standing crops were attached, harvested them while the",
attachment was in force;599. where the accused who was bound under the conditions,
of his tenure to share the produce of his land with the landholder in a certain,
"proportion, dishonestly concealed and removed the produce, thus preventing the",
"landholder from taking his due share,600. it was held that this offence was committed.",
"But a removal of crops to avoid an illegal restraint,601. or removal of property, which",
"was attached after the date fixed for the return of the warrant of attachment, from the",
possession of the custodian602. was held not to amount to an offence under this,
section. Certain crops were attached in execution of a decree and placed in the,
"custody of a bailiff. The crops did not belong to the judgment-debtors, and the owners",
cut and removed a portion of them in spite of the resistance of the bailiff. It was held,
"that no offence was committed.603. In order to bring the case within section 424, IPC,",
1860 it is necessary to show that there has been dishonest or fraudulent concealment,
or removal of any property or dishonest or fraudulent assistance in the matter of,
concealment or removal of the property. The other part of section 424 is not applicable,
"and therefore, it is not adverted to. There is no case in the complaint that any furniture",
or equipment have been concealed or removed. The facts averred do not indicate any,
"such removal or concealment. What is stated is that they are still there, but that the",
complainant is being obstructed from exercising the rights of joint possession over,
them. The question of assisting in the dishonest or fraudulent removal arises only if,
"there is concealment. Therefore, section 424, IPC, 1860 is not applicable.604.",
"598. Gour Benode Dutt, (1873) 21 WR (Cr) 10.",
"599. Obayya, (1898) 22 Mad 151.",
"600. Sivanupandia Thevan, (1914) 38 Mad 793.",
"601. Gopalasamy, (1902) 25 Mad 729.",
"602. Gurdial, (1932) 55 All 119 .",
"603. Ghasi, (1929) 52 All 214 .",
"604. GS Rajakumar v Dr. Subramoniam Poti, 1979 Cr LJ 738 .",
THE INDIAN PENAL CODE,
CHAPTER XVII OF OFFENCES AGAINST PROPERTY,
Of Theft,
Of Mischief,
[s 425] Mischief.,
"Whoever with intent to cause, or knowing that he is likely to cause, wrongful loss or",
"damage to the public or to any person,1 causes the destruction of any property, or any",
such change in any property or in the situation thereof2 as destroys or diminishes its,
"value or utility, or affects it injuriously,3 commits ""mischief"".",
Explanation 1.—It is not essential to the offence of mischief that the offender should,
intend to cause loss or damage to the owner of the property injured or destroyed. It is,
"sufficient if he intends to cause, or knows that he is likely to cause, wrongful loss or",
"damage to any person by injuring any property, whether it belongs to that person or",
not.,
Explanation 2.—Mischief may be committed by an act affecting property belonging to,
"the person who commits the act, or to that person and others jointly.",
ILLUSTRATIONS,
(a) A voluntarily burns a valuable security belonging to Z intending to cause,
wrongful loss to Z. A has committed mischief.,
(b) A introduces water into an ice-house belonging to Z and thus causes the ice to,
"melt, intending wrongful loss to Z. A has committed mischief.",
"(c) A voluntarily throws into a river a ring belonging to Z, with the intention of",
thereby causing wrongful loss to Z. A has committed mischief.,
"(d) A, knowing that his effects are about to be taken in execution in order to satisfy",
"a debt due from him to Z, destroys those effects, with the intention of thereby",
"preventing Z from obtaining satisfaction of the debt, and of thus causing",
damage to Z. A has committed mischief.,
"(e) A, having insured a ship, voluntarily causes the same to be cast away, with the",
intention of causing damage to the under-writers. A has committed mischief.,
"(f) A causes a ship to be cast away, intending thereby to cause damage to Z who",
has lent money on bottomry on the ship. A has committed mischief.,
"(g) A, having joint property with Z in a horse, shoots the horse, intending thereby to",
cause wrongful loss to Z. A has committed mischief.,
"(h) A causes cattle to enter upon a field belonging to Z, intending to cause and",
knowing that he is likely to cause damage to Z's crop. A has committed,
mischief.,
COMMENT—,
"A bare perusal of this provision clearly reveals that either intention or knowledge, is",
required for the offence of mischief. Explanation-1 clearly states that it is not essential,
for the offence of mischief that the offender should intend to cause loss or damage to,
the owner of the property injured or destroyed. In fact it is sufficient if he intends to,
"cause, or knows that he is likely to cause, wrongful loss of damage to any person by",
"injuring any property, whether it belongs to that person or not. Thus, for the offence of",
mischief it is sufficient that the offender knows that by his act he is likely to cause,
wrongful loss or damage to the public or to any person.605. This section clearly speaks,
"of causing any change in property or to destroy or diminishes its value or utility, or",
"affects it injuriously, commits ""mischief. Thus, on this broad definition, certainly by",
"making construction on public land, which is not permissible, its utility will be",
"diminished and the property will be injuriously affected"".606.",
"605. Satish Chand Singhal v State of Rajasthan, 2007 Cr LJ 4132 (Raj).",
"606. Dilip Kumar v State of U P, 2011 Cr LJ 2832 (All).",
THE INDIAN PENAL CODE,
CHAPTER XVII OF OFFENCES AGAINST PROPERTY,
Of Theft,
Of Mischief,
[s 426] Punishment for mischief.,
Whoever commits mischief shall be punished with imprisonment of either description,
"for a term which may extend to three months, or with fine, or with both.",
COMMENT—,
Ingredients.—This section requires three things:—,
(1) intention or knowledge of likelihood to cause wrongful loss or damage to the,
public or to any person;,
(2) causing the destruction of some property or any change in it or in its situation;,
and,
"(3) such change must destroy or diminish its value or utility, or affect it injuriously.",
"This section deals with a physical injury from a physical cause.607. Section 426, IPC,",
"1860 deals with punishment for the offence of ""mischief"" as defined in section 425.",
The said section 425 enacts a rule of which the maxim sic utere tuo ut alienum non,
"laedasis but a partial exponent. It enacts a rule which, while preserving to the owner the",
"maximum rights of property, prevents his using it to the injury or damage of another",
and all fortiori it punishes all who wantonly cause such injury or damage to another's,
property. Neither malice nor an intention to cause injury is essential for the constitution,
of the offence which may be committed by injury caused with only the knowledge of,
"likelihood, which must, however, he strictly proved. The first part of the section sets out",
"the mens rea on the guilty mind, which is the intention or the knowledge of likelihood of",
causing wrongful loss or damage to the public or to any person. The second part of the,
"section pertains to the actus res, that is to say, the criminal act, which consists in",
causing destruction to any property or any such change in any property or in the,
situation thereof as destroys or diminishes its value or utility or affects it injuriously.,
"The express mention of ""damage"" in the section is indicative of the fact that the",
"purview of the offence of ""mischief"" is not intended to be confined only to cases of",
"""wrongful loss"", but also to engulf within it all such cases of damages by unlawful",
means. Destruction of any property within the meaning of the section carries with it the,
implication that something should be done to the property contrary to its natural use,
and serviceableness. Mischief implies the causing of wrongful loss or damage and no,
loss or damage is wrongful unless it involves invasion of a legal right. In any other case,
it is damnum sine injuria.608.,
"Acts done or attempted to be done in bona fide assertion of a right, however ill-founded",
"in law that right may be, cannot amount to the offence of mischief within section",
"425.609. Thus, where the accused pulled down a wall which obstructed his pathway to",
"his kotha and which pathway he had been using for the last 22 years, it was held no",
"offence under section 425, IPC, 1860, was committed.610.",
"1. 'Intend to cause, or knowing that he is likely to cause, wrongful loss or damage to",
the public or to any person'.—This section does not necessarily contemplate damage,
of a destructive character. It requires merely that there should be an invasion of right,
"and diminution of the value of one's property, caused by that invasion of right, which",
"must have been contemplated by the doer of it when he did it.611. A dominant owner,",
"having a right of way over land belonging to another, has no right himself to remove an",
"obstruction unless his right of way is impaired by it. If he does so, he has employed",
"unlawful means and if loss of property is caused thereby to another, he is guilty under",
this section.612. It is no answer to a charge of mischief to plead that the motive of the,
"accused was to benefit himself, and not to injure another, if he knew that he could only",
secure that benefit by causing wrongful loss to another.613. Where while taking,
"possession of the allotted portion of a house on the basis of a valid allotment order, the",
goods were simply put outside the premises and no obstruction was caused to the,
"complainant landlord to collect his goods, offences under sections 425 and 427 were",
not made out.614.,
"2. 'Causes the destruction of any property or any such change in any property, etc.'.—It",
is the essence of this offence that the perpetrator must cause the destruction of,
property or such change in it as destroys or diminishes its value or utility. The,
destruction of a document evidencing an agreement void for immorality constitutes,
this offence as it can be used as evidence for other collateral purposes.615. The,
accused on receiving delivery of a registered article from a Postmaster was requested,
"to sign an acknowledgement for the article received by him, but instead of returning the",
same duly signed he tore it up and threw it on the ground. It was held that he was guilty,
of mischief.616.,
The 'destruction' or 'change' should be contrary to the natural use and serviceableness,
"of the property in question. If a person unauthorisedly allows goats to graze in a forest,",
"the grazing rights in which are restricted to holders of permits, the offence of mischief",
is not committed as by such an act the grass is only put to its normal use.617. The,
accused had a dispute about the possession of a certain land with the complainant.,
"The complainant dug a well with a view to cultivate the said land, but the accused",
forcibly entered on the land and damaged the well. It was held that accused were guilty,
of mischief even though the complainant was a trespasser.618. Merely disconnecting,
electric supply does not amount to destruction of property or to such a change in,
"property as destroys or diminishes its utility or value, and does not constitute an",
offence of mischief.619. A contrary view to this view of the Calcutta High Court has,
been taken by the Delhi High Court to say that switching off the electric supply by the,
"landlord to the tenanted premises, even without causing damage to the distribution",
board or wires supplying electric current diminishes the value and utility of the tenanted,
"premises within the meaning of section 425, IPC, 1860.620. In order to make out an",
offence of mischief it is necessary to show that there was wrongful loss or damage to,
the property. So unless the property was destroyed or underwent such a change due to,
"the action of the accused that its utility or value was diminished, no offence under",
"section 425, IPC, 1860, could be said to have been committed. Thus where a family",
took shelter in the door-way of an uninhabitable and dilapidated house by throwing,
"away a few articles, the offence of mischief was not committed.621. Cutting off the",
water supply constitutes such destructive change in the flat as diminishes its value or,
utility.622.,
[s 426.1] 'Property',
means some tangible property capable of being forcibly destroyed but does not include,
an easement. The section refers to corporeal property and provides for cases in which,
such property is either destroyed or altered or otherwise damaged with a particular,
intent. A right to collect tolls at a public ferry is not property within the meaning of this,
"section.623. Where a person owns land on which there is a drain, the water running",
"through which is used as of right by way of easement by another person, the former is",
"not guilty of mischief, if the drain is destroyed by him because an easement does not",
come within the purview of 'property' within the meaning of section 425.624. The,
offence of mischief may be committed in respect of both movable and immovable,
property.625.,
[s 426.2] 'Change',
means a physical change in composition or form. The section contemplates a physical,
injury from a physical cause. Making a breach in the wall of a canal is an act which,
causes such a change in the property as destroys or diminishes its value or affects it,
injuriously.626.,
"Where a landlord, in breach of an agreement with his tenants, omitted to pump water",
"into their flats from a central reservoir without, however, interfering in any way with their",
"taking water from the central reservoir, such omission did not constitute such a change",
"as would make it ""mischief"" within the meaning of this section.627. There is a contrary",
view to this which holds that cutting off the water supply does constitute an offence of,
mischief.628. So also would be the case in regard to cutting off the supply of electricity,
by the landlord to the tenanted portion of the house.629. This latter view appears to be,
more reasonable.,
"3. 'As destroys or diminishes its value or utility, etc.'.—Destruction or diminution in",
value of the property regarding which the offence is committed is essential. The utility,
referred to in this section is that conceived by the owner and not by the accused.630.,
[s 426.3] Explanation 1.—,
Illustrations (e) and (f) exemplify this Explanation. It is not essential that the property,
"interfered with should belong to the person injuriously affected. D, as a lessee of",
"Government, held rights of fishery in a particular stretch of a river. C, by diverting the",
"water of that river, converted the bed of the river for a considerable distance into dry",
"land, or land with a very shallow covering of water upon it, and by so doing he was",
"enabled to destroy, and did destroy, very large quantities of fish, both mature and",
immature. It was held that when C deliberately changed the course and condition of the,
river in the manner described to the detriment of D. he was guilty of mischief.631.,
[s 426.4] Explanation 2.—,
"A person who destroys property, which, at the time, belongs to himself, with the",
"intention of causing, or knowing that it is likely to cause, wrongful loss or damage to",
anybody else is guilty of this offence.632. Illustrations (b) and (g) show that a man may,
"commit mischief on his own property. In order, however, to his doing so, it is necessary",
"that he intends to cause wrongful loss to some person, as in the cases stated in the",
illustrations.,
"607. Moti Lal, (1901) 24 All 155 , 156.",
"608. Gopinath Nayak v Lepa Majhi, 1996 Cr LJ 3814 (Ori).",
"609. Ramchandra, (1968) 70 Bom LR 399 .",
"610. Manikchand, 1975 Cr LJ 1044 (Bom); see also Santosh Kumar Biswas, 1979 Cr LJ NOC 79",
(Cal.),
"611. Juggeshwar Dass v Koylash Chunder, (1885) 12 Cal 55 . In Nagendranath Roy v Bijoy Kumar",
"Dasburma, 1992 Cr LJ 1871 (Ori), it was held that mere negligence is not mischief. Negligence",
accompanied with intention to cause wrongful loss or damage may amount to mischief.,
"Mischief involves mental act with destructive animus. In the instant case, an ailing calf died due",
to administering of injections despite protests.,
"612. Hari Bilash Shau v Narayan Das Agarwala, (1938) 1 Cal 680 ; Zipru v State, (1927) 51 Bom",
"487, 29 Bom LR 484.",
"613. S Pannadi, AIR 1960 Mad 240 [LNIND 1959 MAD 76] . Breaking open a person's godown",
and throwing out articles is an offence under this section. Balai Chandra Nandy v Durga Charan,
"Banerjee, 1988 Cr LJ 710 (Cal).",
"614. Ved Prakash v Chaman Singh, 1995 Cr LJ 3890 (All).",
"615. Vyapuri, (1882) 5 Mad 401.",
"616. Sukha Singh, (1905) PR No. 24 of 1905.",
"617. Ragupathi Ayyar v Narayana Goundan, (1928) 52 Mad 151.",
"618. Abdul Hussain, (1943) Kar 7 .",
"619. IH Khan v M Arathoon, 1969 Cr LJ 242 (Cal).",
"620. PS Sundaran v S Vershaswami, 1983 Cr LJ 1119 (Del).",
"621. Jaddan, 1973 Cr LJ 490 (All).",
"622. Gopi Naik, 1977 Cr LJ 1665 (Goa).",
"623. Ali Ahmad v Ibadat-Ullah Khan, (1944) All 189 .",
"624. Punjaji v Maroti, (1951) Nag 855.",
"625. Ram Birich v Bishwanath, (1961) 2 Cr LJ 265 . See however, Sippattar Singh v Krishna, AIR",
1957 All 405 [LNIND 1957 ALL 15] .,
"626. Bansi v State, (1912) 34 All 210 .",
"627. Ram Das Pandey v Nagendra Nath Chatterji, (1948) 1 Cal 329 .",
"628. Gopi Naik, 1977 Cr LJ 1665 (Goa).",
"629. PS Sundaram, 1983 Cr LJ 1119 (Del).",
"630. Sumerchand, (1962) 2 Cr LJ 692 .",
"631. Chanda, (1905) 28 All 204 .",
"632. Dharma Das Ghose v Nusseruddin, (1886) 12 Cal 660 .",
THE INDIAN PENAL CODE,
CHAPTER XVII OF OFFENCES AGAINST PROPERTY,
Of Theft,
Of Mischief,
[s 427] Mischief causing damage to the amount of fifty rupees.,
Whoever commits mischief and thereby causes loss or damage to the amount of fifty,
"rupees or upwards, shall be punished with imprisonment of either description for a",
"term which may extend to two years, or with fine, or with both.",
COMMENT—,
Where evidence on record clearly establishes that the sugarcane stems in the fields of,
"the claimants were totally destroyed by using a tractor. Therefore, section 427, IPC,",
1860 is clearly established.633.,
"While causing mischief, there must be an intention behind that. In the present case, the",
"petitioners were discharging their official duty. Therefore, they had no intention to",
cause any injury or mischief.634.,
"633. Kashiben Chhaganbhai Koli v State of Gujarat, (2008) 17 SCC 100 [LNIND 2008 SC 2366] :",
2009 Cr LJ 1156 (SC).,
"634. Ramnish v CBI, 2016 Cr LJ 2371 (Del) : 2016 V AD (Del) 574.",
THE INDIAN PENAL CODE,
CHAPTER XVII OF OFFENCES AGAINST PROPERTY,
Of Theft,
Of Mischief,
[s 428] Mischief by killing or maiming animal of the value of ten,
rupees.Mischief by killing or maiming animal of the value of ten rupees.,
"Whoever commits mischief by killing, poisoning, maiming or rendering useless any",
"animal or animals of the value of ten rupees or upwards, shall be punished with",
"imprisonment of either description for a term which may extend to two years, or with",
"fine, or with both.",
COMMENT—,
This section is intended to prevent cruelty to animals and consequent loss to the,
owner.,
[s 428.1] 'Maiming'.—,
refers to those injuries which cause the privation of the use of a limb or a member of,
"the body.635. 'Maiming' implies a permanent injury,636. wounding is not necessarily",
maiming.,
"635. Fattehdin, (1881) PR No. 33 of 1881.",
"636. Jeans, (1884) 1 C & K 539.",
THE INDIAN PENAL CODE,
CHAPTER XVII OF OFFENCES AGAINST PROPERTY,
Of Theft,
Of Mischief,
"[s 429] Mischief by killing or maiming cattle, etc., of any value or any animal of",
the value of fifty rupees.,
"Whoever commits mischief by killing, poisoning, maiming or rendering useless, any",
"elephant, camel, horse, mule, buffalo, bull, cow or ox, whatever may be the value",
"thereof, or any other animal of the value of fifty rupees or upwards, shall be punished",
"with imprisonment of either description for a term which may extend to five years, or",
"with fine, or with both.",
COMMENT—,
This section provides for enhanced punishment owing to the greater value of the,
animals mentioned therein. This section is applicable where permanent injury is,
caused to the animal by the offence of mischief.637. It has been held by the Supreme,
Court that the offence created by this section and the one under section 9(1) read with,
"section 50 of the Wild Life Protection Act, 1972 are substantially the same offence.",
"Therefore, the bar of double jeopardy will not operate.638. It is apparent that the most",
"significant words are the opening words of the section which says, ""whoever commits",
"mischief by killing..."" and thus 'mischief' appears to be an essential ingredient for",
"attracting the offence and the mischief has been defined under section 425 of the IPC,",
1860. For constituting offence of mischief the essential ingredient would be the,
"destruction of the property. Therefore, if no one has any property or right in any animal,",
the killing of that animal does not come within the purview of section 425 of the Code,
"and thus, in the facts and circumstances of the instant case where the complainant",
"has never come with the case that any dog over which somebody has right, has been",
"caught, rather according to complaint, only stray dogs have been caught that too where",
"it has never been alleged to have been poisoned, maimed or rendered useless there",
"would be no application of section 429 of the IPC, 1860.639.",
[s 429.1] Cruelty to animals.—,
Though the complainant under the allegations made in the complaint petition made,
prayer to take cognizance of the offence under sections 11 (i) (a)(b)(c)(e)(f)(g)(h)(i),
"and (1) of the Prevention of Cruelty to Animals Act, 1960 and also under section 429 of",
"the IPC, 1860 but the Court did not find any ground to proceed with the case so far",
"offence under section 429 of the IPC, 1860 is concerned and hence, he did not take any",
"cognizance of the said offence, still the petitioner has been summoned to face trial not",
only for the offence under sections 11 (i)(a)(b)(c)(e)(f)(g)(h)(i) and (l) of the Prevention,
"of Cruelty to Animals Act, 1960 but also under section 429 of the IPC, 1860 and",
"therefore, any insertion of the offence under section 429 of the IPC, 1860 in the",
summon under the facts and circumstances stated above is an error which may have,
crept in inadvertently but otherwise also in the fact of allegation there would be no,
"application of section 429 of the IPC, 1860.640.",
"637. Gopalakrishna v Krishna Bhatta, AIR 1960 Ker 74 [LNIND 1959 KER 134] .",
"638. State of Bihar v Murad Ali Khan, (1988) 4 SCC 655 [LNIND 1988 SC 507] : 1989 Cr LJ 1005 :",
AIR 1989 SC 1 [LNIND 1986 SC 198] .,
"639. A P Arya v State of Jharkhand, 2008 Cr LJ 3350 (Jha).",
"640. A P Arya v State of Jharkhand, 2008 Cr LJ 3350 (Jha).",
THE INDIAN PENAL CODE,
CHAPTER XVII OF OFFENCES AGAINST PROPERTY,
Of Theft,
Of Mischief,
[s 430] Mischief by injury to works of irrigation or by wrongfully diverting,
water.,
"Whoever commits mischief by doing any act which causes, or which he knows to be",
"likely to cause, a diminution of the supply of water for agricultural purposes, or for",
"food or drink for human beings or for animals which are property, or for cleanliness or",
"for carrying on any manufacture, shall be punished with imprisonment of either",
"description for a term which may extend to five years, or with fine, or with both.",
COMMENT—,
"This section deals with diminution of water supply, e.g., the placing of an embankment",
across a channel. Section 277 applies if the water is fouled so as to be unfit for use.,
"This section applies equally to irrigation channels as to other sources of irrigation, such",
as tanks and ponds.,
"For a conviction under this section, there must be some infringement of right resting in",
some one by the act of the accused.641.,
"641. Ashutosh Ghosh, (1929) 57 Cal 897 .",
THE INDIAN PENAL CODE,
CHAPTER XVII OF OFFENCES AGAINST PROPERTY,
Of Theft,
Of Mischief,
"[s 431] Mischief by injury to public road, bridge, river or channel.",
Whoever commits mischief by doing any act which renders or which he knows to be,
"likely to render any public road, bridge, navigable river or navigable channel, natural or",
"artificial, impassable or less safe for travelling or conveying property, shall be",
punished with imprisonment of either description for a term which may extend to five,
"years, or with fine, or with both.",
THE INDIAN PENAL CODE,
CHAPTER XVII OF OFFENCES AGAINST PROPERTY,
Of Theft,
Of Mischief,
[s 432] Mischief by causing inundation or obstruction to public drainage,
attended with damage.,
Whoever commits mischief by doing any act which causes or which he knows to be,
likely to cause an inundation or an obstruction to any public drainage attended with,
"injury or damage, shall be punished with imprisonment of either description for a term",
"which may extend to five years, or with fine, or with both.",
THE INDIAN PENAL CODE,
CHAPTER XVII OF OFFENCES AGAINST PROPERTY,
Of Theft,
Of Mischief,
"[s 433] Mischief by destroying, moving or rendering less useful a light-house",
or sea-mark.,
Whoever commits mischief by destroying or moving any light-house or other light,
used as a sea-mark or any sea-mark or buoy or other thing placed as a guide for,
"navigators, or by any act which renders any such light-house, sea-mark, buoy or other",
"such thing as aforesaid less useful as a guide for navigators, shall be punished with",
"imprisonment of either description for a term which may extend to seven years, or",
"with fine, or with both.",
COMMENT—,
This section is an extension of the principle laid down in section 281. Sea-marks are,
very important in navigation and any tampering with them may lead to disastrous,
results.,
THE INDIAN PENAL CODE,
CHAPTER XVII OF OFFENCES AGAINST PROPERTY,
Of Theft,
Of Mischief,
"[s 434] Mischief by destroying or moving, etc., a land-mark fixed by public",
authority.,
Whoever commits mischief by destroying or moving any land-mark fixed by the,
"authority of a public servant, or by any act which renders such land-mark less useful",
"as such, shall be punished with imprisonment of either description for a term which",
"may extend to one year, or with fine, or with both.",
COMMENT—,
This section is similar to the last section but the punishment prescribed is not so,
severe because tampering with land-marks does not lead to disastrous results.,
Possession by the accused of the land in which the land-marks are situated will not be,
a defence in a case where the ingredients of the offence under this section are made,
out.642.,
"642. Kannan Pillai v Ismail, (1961) KLT 656 .",
THE INDIAN PENAL CODE,
CHAPTER XVII OF OFFENCES AGAINST PROPERTY,
Of Theft,
Of Mischief,
[s 435] Mischief by fire or explosive substance with intent to cause damage to,
amount of one hundred or (in case of agricultural produce) ten rupees.,
"Whoever commits mischief by fire or any explosive substance intending to cause, or",
"knowing it to be likely that he will thereby cause, damage to any property to the",
amount of one hundred rupees or upwards 643.[or (where the property is agricultural,
"produce) ten rupees or upwards], shall be punished with imprisonment of either",
"description for a term which may extend to seven years, and shall also be liable to",
fine.,
"643. Ins. by Act 8 of 1882, section 10.",
THE INDIAN PENAL CODE,
CHAPTER XVII OF OFFENCES AGAINST PROPERTY,
Of Theft,
Of Mischief,
"[s 436] Mischief by fire or explosive substance with intent to destroy house,",
etc.,
"Whoever commits mischief by fire or any explosive substance, intending to cause, or",
"knowing it to be likely that he will thereby cause, the destruction of any building which",
is ordinarily used as a place of worship or as a human dwelling or as a place for the,
"custody of property, shall be punished with 644.[imprisonment for life], or with",
"imprisonment of either description for a term which may extend to ten years, and",
shall also be liable to fine.,
COMMENT—,
"In order to attract section 436 of the IPC, 1860, the following ingredients must be",
satisfied:,
(i) There must be commission of mischief by fire or any explosive substance.,
"(ii) It should have been committed intending to cause, or knowing it to be likely that",
the accused will thereby cause the destruction of any building.,
(iii) The building should be one which is ordinarily used as a place of worship or as,
a human dwelling or as a place for custody of property.,
The section contemplates the destruction of a building. A 'building' is not necessarily a,
"finished structure.645. An unfinished house, of which the walls are built and finished,",
"the roof on and finished, a considerable part of the flooring laid, and the internal walls",
and ceiling prepared ready for plastering is a building.646. The dominant intention of,
"the Legislature in framing section 436, IPC, 1860, was to give protection to those",
buildings which are used as human dwelling or as places where properties are stored,
for custody.,
"See also discussions under head 'Building' under section 442, infra.",
"644. Subs. by Act 26 of 1955, section 117 and Sch, for ""transportation for life"" (w.e.f. 1 January",
1956).,
"645. Manning, (1871) LR 1 CCR 338.",
"646. William Edgell, (1867) 11 Cox 132.",
THE INDIAN PENAL CODE,
CHAPTER XVII OF OFFENCES AGAINST PROPERTY,
Of Theft,
Of Mischief,
[s 437] Mischief with intent to destroy or make unsafe a decked vessel or one,
of twenty tons burden.,
Whoever commits mischief to any decked vessel or any vessel of a burden of twenty,
"tons or upwards, intending to destroy or render unsafe, or knowing it to be likely that",
"he will thereby destroy or render unsafe, that vessel, shall be punished with",
"imprisonment of either description for a term which may extend to ten years, and",
shall also be liable to fine.,
COMMENT—,
The vessel must be a 'decked vessel' or a 'vessel of a burden of twenty tons or,
upwards'. This limitation is laid down to exclude small craft of all kinds. The intention,
of the Legislature is to punish mischief committed on vessels which are likely to carry,
passengers.,
THE INDIAN PENAL CODE,
CHAPTER XVII OF OFFENCES AGAINST PROPERTY,
Of Theft,
Of Mischief,
[s 438] Punishment for the mischief described in section 437 committed by,
fire or explosive substance.,
"Whoever commits, or attempts to commit, by fire or any explosive substance, such",
"mischief as is described in the last preceding section, shall be punished with 647.",
"[imprisonment for life], or with imprisonment of either description for a term which",
"may extend to ten years, and shall also be liable to fine.",
COMMENT—,
This section merely extends the principle laid down in the last section. It imposes,
higher penalty owing to the dangerous nature of the means used.,
"647. Subs. by Act 26 of 1955, section 117 and Sch, for ""transportation for life"" (w.e.f. 1 January",
1956).,
THE INDIAN PENAL CODE,
CHAPTER XVII OF OFFENCES AGAINST PROPERTY,
Of Theft,
Of Mischief,
[s 439] Punishment for intentionally running vessel aground or ashore with,
"intent to commit theft, etc.",
"Whoever intentionally runs any vessel aground or ashore, intending to commit theft of",
"any property contained therein or to dishonestly misappropriate any such property, or",
"with intent that such theft or misappropriation of property may be committed, shall be",
punished with imprisonment of either description for a term which may extend to ten,
"years, and shall also be liable to fine.",
COMMENT—,
This section punishes an act which is akin to piracy.,
THE INDIAN PENAL CODE,
CHAPTER XVII OF OFFENCES AGAINST PROPERTY,
Of Theft,
Of Mischief,
[s 440] Mischief committed after preparation made for causing death or hurt.,
"Whoever commits mischief, having made preparation for causing to any person death,",
"or hurt, or wrongful restraint, or fear of death, or of hurt, or of wrongful restraint, shall",
be punished with imprisonment of either description for a term which may extend to,
"five years, and shall also be liable to fine.",
COMMENT—,
"In order to attract the provisions of section 440 read with section 44, Penal Code, it is",
necessary to allege and establish the following three essentials which constitute the,
offence under the said sections:-,
(1) Intention or knowledge of likelihood to cause wrongful loss or damage to the,
public or to any person.,
(2) Causing the destruction of some property or any such change in any property or,
in the situation thereof; and,
(3) Such changes must result in destroying or diminishing the value or utility of any,
property or affecting it injuriously.,
"It is thus, plain that either destruction of property or some change in the property or in",
"the situation which has the effect of destroying or diminishing the value or utility or, in",
"any event, affecting it injuriously is necessary. The word 'property' used in this section",
really means some intangible property capable of being destroyed or damaged in its,
"value or utility. It must be remembered that section 440 read with section 44, IPC, 1860",
is an offence committed against the property. Sections 425 and 440 appear in the 17th,
"chapter entitled ""Offences against Property."" If there is no allegation that mischief was",
committed through the medium of property as is visualised by section 440 read with,
"section 425, IPC, 1860, it is plain that it cannot be validly said that an offence is",
constituted.648.,
"648. Abid Ali Khan v Prabhakara Rao, 1968 CR LJ 398 (Vol 74, C. N. 115)(AP); Ramakant Rai v",
"Madan rai, (2003) 12 SCC 395 [LNIND 2003 SC 837] : 2004 Cr LJ 36 (SC)- Order of acquittal",
reversed.,
THE INDIAN PENAL CODE,
CHAPTER XVII OF OFFENCES AGAINST PROPERTY,
Of Theft,
Of Criminal Trespass,
[s 441] Criminal trespass.,
Whoever enters into or upon property in the possession of another1 with intent to,
"commit an offence2 or to intimidate, insult or annoy any person in possession3 of",
"such property,",
"or having lawfully entered into or upon such property, unlawfully remains there4 with",
"intent thereby to intimidate, insult or annoy any such person, or with intent to commit",
"an offence,",
"is said to commit ""criminal trespass"".",
State Amendments,
Orissa.—Amendment by Orissa Act No. 22 of 1986 (w.e.f. 6-12-1986). Same as in Uttar,
"Pradesh except that for the words ""whether before or after the coming into force of the",
"Criminal Laws (U.P. Amendment) Act, 1961"" read ""remains there"", and omit ""by the",
"specified in the notice.""",
Uttar Pradesh.—The following amendments were made by U.P. Act No. 31 of,
"1961,section 2 (w.e.f. 13-11-1961).",
"For Section 441, substitute the following:—",
"""441. Criminal Trespass.—Whoever enters into or upon property in possession of",
"another with intent to commit an offence or to intimidate, insult or annoy any person in",
"possession of such property, or, having lawfully entered into or upon such property,",
"unlawfully remains there with intent thereby to intimidate, insult or annoy any such",
"person, or with intent to commit an offence,",
"or, having entered into or upon such property, whether before or after the coming into",
"force of the Criminal Law (U.P. Amendment) Act, 1961, with the intention of taking",
unauthorised possession or making unauthorised use of such property fails to,
"withdraw from such property or its possession or use, when called upon to do so by",
"that another person by notice in writing, duly served upon him, by the date specified in",
"the notice,",
"is said to commit ""criminal trespass"".""",
COMMENT—,
"The word ""trespass"" in common english acceptation means and implies unlawful or",
"unwarrantable intrusion upon land. It is a transgression of law or right, and a trespasser",
"is a person, entering the premises of another with the knowledge that his entrance is in",
excess of the permission that has been given to him.649. The authors of the Code say:,
"""We have given the name of trespass to every usurpation, however slight, of dominion",
"over property. We do not propose to make trespass, as such, an offence, except when it",
is committed in order to the commission of some offence injurious to some person,
"interested in the property on which the trespass is committed, or for the purpose of",
causing annoyance to such a person. Even then we propose to visit it with a light,
"punishment, unless it is attended with aggravating circumstances"".650.",
[s 441.1] Ingredients.—,
The section requires—,
(1) Entry into or upon property in the possession of another.,
"(2) If such entry is lawful, then unlawfully remaining upon such property.",
(3) Such entry or unlawful remaining must be with intent—,
(a) to commit an offence; or,
"(b) to intimidate, insult, or annoy any person in possession of the property.",
The use of criminal force is not a necessary ingredient.,
1. 'Enters into or upon property in the possession of another'.—'Property' in this,
"section means immovable corporeal property, and not incorporeal property such as a",
"right of fishery,651. or a right of ferry.652. A person plying a boat for hire within the",
"prohibited distance from a public ferry cannot be said, with reference to such ferry, to",
commit criminal trespass.653.,
The possession must be actual possession of some person other than the alleged,
trespasser.654. The offence can only be committed against a person who is in actual,
physical possession of the property in question. If the complainant is not in actual,
possession of the property this offence cannot be committed.655. But the offence may,
be committed even when the person in possession of the property is absent provided,
the entering into or upon the property is done with intent to do any of the acts,
"mentioned in the section. Where a person entered upon a field that had been leased,",
"during the absence of the lessee, and ploughed it, and the lessor came to the spot on",
"hearing of it to prevent the commission of such acts, it was held that that was not",
enough to exonerate that person from intention to annoy the lessee and that such a,
person could be convicted of criminal trespass.656. The mere taking of unlawful,
possession of a house will not amount to either criminal trespass or house-trespass.,
An unlawful act is not necessarily an offence. The house in question must be in actual,
possession of the complainant. Mere constructive possession is not sufficient.657.,
2. 'Intent to commit an offence'.—Where in a pen-down peaceful strike the employees,
of the bank entered the office and occupied their seats and refused to work during,
office hours and was wholly confined to regular working hours and the only act alleged,
against them was that they refused to vacate their seats when they were called upon to,
"do so by the superior officers, it was held by the Supreme Court that the conduct of",
strikers did not amount to criminal trespass.658.,
"3. 'Or to intimidate, insult or annoy any person in possession'.— In order to establish",
"that the entry on the property was with intent to annoy, intimidate or insult, it is",
"necessary for the Court to be satisfied that causing such annoyance, intimidation or",
insult was the main aim of the entry; it is not sufficient to show merely that the natural,
"consequence of the entry was likely to be annoyance, intimidation or insult and this",
was known to the accused.659.,
"The word 'intimidate' must be understood in its ordinary sense ""to overawe, to put in",
"fear, by a show of force or threats of violence"". 660.",
The Supreme Court has held that this section does not require that the intention must,
be to annoy a person who is actually present at the time of the trespass.661.,
"4. 'Having lawfully entered into or upon such property, unlawfully remains there'.— The",
"original entry may be lawful, but if the person entering remains on the property with the",
intent specified in the section he commits trespass. Where a person armed with,
weapons went on land of which he was the owner when no one else was there at the,
"time and refused to vacate it, when called upon to do so by a person who had no right",
"to the land, it was held that the owner did not remain on the land unlawfully and was",
"not therefore, guilty of the offence of criminal trespass.662.",
[s 441.2] Bona fide claim.—,
If a person enters on land in the possession of another in the exercise of a bona fide,
"claim of right, but without any intention to intimidate, insult, or annoy the person in",
"possession, or to commit an offence, then although he may have no right to the land,",
"he cannot be convicted of criminal trespass, because the entry was not made with any",
"such intent as constitutes the offence.663. Bona fide claim of right, however ill-founded,",
nullifies a case of criminal trespass.664. Where certain hutment dwellers of Bombay,
were facing demolition for having erected their huts on public footpaths and,
"pavements, the Supreme Court held that no offence under the section was made out.",
Their act was not voluntary. It was the dictate of their moral right to survive and their,
"state of helplessness. They did not intend to commit an offence or to intimidate, insult",
or annoy any person in possession and that is the gist of the offence of criminal,
trespass under section 441.665. Where the accused continued in possession of the,
"tenanted premises even after the expiry of the lease period, he could not be said to be",
in unauthorised possession and to have committed trespass.666.,
[s 441.3] Dispute as to possession in civil suit.—,
"Where dispute regarding possession of a property was pending in a civil suit, there",
could be no trespass in respect of that property. The complainant must be in,
unquestionable possession of property at the time of alleged trespass.667.,
[s 441.4] Honest civil trespass.—,
A Judicial Magistrate was posted at a place where no Government accommodation,
"was available. He, therefore, stayed in a room in a dak bungalow. When he went away",
"on leave, he locked his household effects in the room. A junior engineer broke open the",
lock and shifted the belongings to another room as a senior official was to visit the,
"area. On return, the Magistrate filed an FIR against the junior engineer and cognizance",
of the offence was taken. It was held that the engineer was not actuated with any,
dishonest intention and it was a case of honest civil trespass for which no cognizance,
could be taken.668.,
[s 441.5] Uttar Pradesh Amendment.—,
The effect of the Uttar Pradesh amendment was considered by the Allahabad High,
Court in Somnath Paul v Ram Bharose.669. The amendment has the effect of converting,
"a civil trespass into a criminal trespass when the entry into, or retention of, premises is",
for the purpose of taking unauthorised possession or making unauthorised use. Going,
"by the earlier authorities, the court held that refusal to vacate premises after revocation",
of licence under which possession was given would not by itself constitute a criminal,
trespass. The intent to do the acts stated in the amendment must also be proved.670.,
[s 441.6] Orissa Amendment.—,
"Section 441, IPC, 1860, as amended by Orissa Act, 22 of 1986, defines criminal",
"trespass, which, when committed in respect of, inter alia, a human dwelling, becomes",
"an offence punishable under section 448, IPC, 1860. Ordinarily, a dispute between the",
tenant and the landlord regarding vacation of a premise after expiry of the period of,
"tenancy is a civil dispute, unless an offence of criminal trespass can be said to have",
been committed. Prosecution against the tenant would not lie except the cases,
"covered by the Orissa Amendment. Section 441, IPC, 1860, which has been defined by",
"Orissa Act, 22 of 1986, is quoted hereunder for better appreciation:",
....... Whoever enters into or upon property in possession of another with intent to commit,
"an offence or to intimidate, insult or annoy any person in possession of such property.",
"Or having lawfully entered into or upon such property, unlawfully remains there with intent",
"thereby to intimidate, insult or annoy any such person or with intent to commit an offence;",
"or having lawfully entered into or upon such property, remains there with the intention of",
taking unauthorised possession or making unauthorised use of such property and fails to,
"withdraw from such property or its possession or use, when called upon to do so by that",
"another person by notice in writing duly served on him, is said to commit criminal trespass.",
The aforesaid section consists of three parts. The first two parts are same and similar,
"to that of the original section of the IPC, 1860. The third part, with which the charge is",
"concerned, says that if the person has lawfully entered into the premises and remains",
there with intention of (i) taking unauthorised possession or (ii) making unauthorised,
use of such property or (iii) fails to withdraw from such property or its possession or,
"use when called upon to do so by notice in writing duly served on him, he is said to",
"have committed the offence.671. The rigors of section 441, IPC, 1860 as amended by",
"the Orissa Act, 22 of the 198 shall not be applicable to the following cases:",
(i) Statutory tenants whose tenancy is governed by any statute.,
"(They are protected by tenancy laws like Public Premises Eviction Act, etc.)",
(ii) Tenant who has entered into possession by virtue of a lease.,
(Rights of such tenant are governed under the provisions of the Transfer of Property,
Act and the Specific Relief Act and he acquires a right of possession. After,
"determination of tenancy by notice, he would become ""Tenant holding over""""Tenant on",
"sufferance"" or 'Tenant at will"" as the case may be. His possession being juridical, is",
protected. He can be evicted only in due process of law. The possession of such,
tenant cannot be equated with that of trespassers.),
"(iii) Person who has entered into possession by virtue of some covenant like, agreement",
"to sell, will etc. and/or put forth a genuine right over the property possessed.",
"(If a person claims a right of title coupled with possession, till the dispute is",
"adjudicated, his possession cannot be conclusively said to be that of a trespasser and",
his right to possess would be subject to the result of the suit or legal proceeding.)672.,
"649. Kewal Chand v SK Sen, AIR 2001 SC 2569 [LNIND 2001 SC 1415] : (2001) 6 SCC 512",
[LNIND 2001 SC 1415] .,
"650. Note N, p 168.",
"651. Charu Nayiah, (1877) 2 Cal 354 .",
"652. Muthra v Jawahir, (1877) 1 All 527 .",
653. Ibid.,
"654. Foujdar, (1878) PR No. 28 of 1878; Kunjilal v State, (1913) 12 ALJR 151.",
"655. Bismillah, (1928) 3 Luck 661 .",
"656. Venkatesu v Kesamma, (1930) 54 Mad 515.",
"657. Satish Chandra Modak, (1949) 2 Cal 171 .",
"658. Punjab National Bank v AIPNBE Federation, AIR 1960 SC 160 [LNIND 1959 SC 166] .",
"659. Mathri v State, AIR 1964 SC 986 [LNIND 1963 SC 292] . Sujya v State of Rajasthan, 2003 Cr",
"LJ 1612 (Raj), entering the field of another and releasing cows to graze there, revenue records",
"showed that the victims were khatedars of the field, the trespassers caused injuries on",
"resistance, guilty of criminal trespass. They have no right of private defence.",
"660. TH Bird, (1933) 13 Pat 268.",
"661. Rash Behari v Fagu Shaw, (1970) 1 SCR 425 [LNIND 1969 SC 192] .",
"662. Adalat, (1945) 24 Pat 519. The offence is of continuing nature within the meaning of",
section 472 Cr PC. The offence would be continuing so long as the trespass is not lifted or,
vacated or insult etc. of the person lawfully in possession is not stopped. Gokak Patel Valkart,
"Ltd v Dundayya Gurushiddaiah Hiremath, (1991) 71 Com Cases 403 : (1991) 2 SCC 141 [LNIND",
"1991 SC 878] . Akapati Bhaskar Patro v Trinath Sahu, 2002 Cr LJ 3397 (Ori), by virtue of the",
Orissa Amendment and even otherwise also a tenant remaining in possession even after,
termination notice does not commit the offence of mischief by trespass. His possession is not,
unlawful.,
"663. Budh Singh, (1879) 2 All 101 , 103.",
"664. Manik Chand, 1975 Cr LJ 1044 (Bom); Santosh Kumar Biswas, 1979 Cr LJ NOC 79 (Cal).",
"665. Olga Tellis v Bombay MC, (1985) 3 SCC 545 [LNIND 1985 SC 215] : AIR 1986 SC 180",
"[LNIND 1985 SC 215] . For an analysis of the wider implications of this decision, see TN Singh,",
"Ex Curia : Tulsiram Patel v Olga Tellis, (1987) 29 JI LI 547.",
"666. S Subramanium v State of UP, 1996 Cr LJ 929 (All).",
"667. State of Goa v Pedro Lopes, 1996 Cr LJ 256 (Bom).",
"668. Bagirath Singh v State of Rajasthan, 1992 Cr LJ 3934 (Raj).",
"669. Somnath Paul v Ram Bharose, 1991 Cr LJ 2499 (All).",
"670. The court followed Punjab National Bank v AIP NBE Federation, AIR 1960 SC 160 [LNIND",
"1959 SC 166] , entry of employees on pen down strike; Kanwal Sood v Nawal Kishore, AIR 1983",
"SC 159 [LNIND 1982 SC 180] : 1983 Cr LJ 173 : (1983) 3 SCC 25 [LNIND 1982 SC 180] , refusal",
"to vacate premises after the death of testator; Sinnasamy v King, 1951 AC 83 (PC), entry with",
"bona fide belief in right to do so; Jawanmal v Bhanwari, AIR 1958 Raj 214 [LNIND 1958 RAJ 237] :",
"1958 Cr LJ 1099 , bona fide belief; Babu Ram v State of UP, 1971 All LJ 4, bona fide belief;",
"Mahabir Pd v State, 1976 Cr LJ 245 , notice under section 447; Rashid Ad v Rashidan, 1980 All LJ",
"939, effect of UP Amendment, lawful entry becoming criminal trespass; DP Titus v LW Lyall, 1981",
"Cr LJ 68 , lawful entry, subsequent unauthorised use.",
"671. Abdul Samad v Md. Qamruddin, 2007 Cr LJ. 4383 (Ori).",
"672. Kumar Debasish v State of Orissa, 2008 Cr LJ 2397 (Ori).",
THE INDIAN PENAL CODE,
CHAPTER XVII OF OFFENCES AGAINST PROPERTY,
Of Theft,
Of Criminal Trespass,
[s 442] House trespass.,
"Whoever commits criminal trespass by entering into1 or remaining in any building,2",
"tent or vessel used as a human dwelling or any building used as a place for worship,",
"or as a place for the custody of property, is said to commit ""house-trespass"".",
Explanation.—The introduction of any part of the criminal trespasser's body is entering,
sufficient to constitute house-trespass.,
COMMENT—,
The offence of criminal trespass may be aggravated in several ways. It may be,
"aggravated by the way in which it is committed, and by the end for which it is",
"committed. When criminal trespass is committed in a dwelling house, or any building,",
"tent or vessel used for human dwelling, it becomes, 'house trespass' as defined under",
"section 442 IPC, 1860 and punishable under section 448 IPC, 1860. The offence",
intended to be committed so as to constitute 'criminal trespass' is any offence. But if,
such offence intended to be committed is one punishable with imprisonment and the,
"criminal trespass is committed in a dwelling house, then the offence which is made out",
"is not one punishable under section 448 IPC, 1860 but one punishable under section",
"451 IPC, 1860 which is an aggravated form of house trespass.673.",
1. 'Entering into'.—The introduction of any part of the trespasser's body is entering,
"sufficient to constitute house-trespass.674. The roof being a part of a building, if any",
"one goes on the roof of a building that will be tantamount to ""entering into"" the building",
"within the meaning of that expression in this section.675. Section 441, IPC, 1860 would",
show that it is only when a person unlawfully remains in a property of another person,
"""with intent thereby to intimidate, insult or annoy any such person, or with intent to",
"commit an offence"" that an offence of criminal trespass is committed. While there may",
be evidence in the present case that the accused/opposite party has unlawfully,
remained in the property belonging to the petitioner or that of the Mosque Committee,
"to whom the petitioner is said to have donated the property, there is no evidence",
"whatsoever that the accused/opposite party remained there with intent to intimidate,",
insult or annoy the petitioner or the Mosque Committee or with intent to commit an,
offence.676.,
2. 'Building'.—What is a 'building' must always be a question of degree and,
circumstances; its ordinary and usual meaning is an enclosure of brick or stone work,
covered in by a roof.677. The mere surrounding of an open space of ground by a wall or,
"fence of any kind cannot be deemed to convert the open space itself into a building,",
and trespass thereon does not amount to house-trespass.678. Even a structure with a,
"thatched roof, doors and shutters would come within the meaning of building if it is",
used as a human dwelling or place for the custody of property.679..,
[s 442.1] Police Station.—,
The criminal trespass in question need not be only in respect of a building used as a,
"human dwelling, but it also covers in building used as a place for custody of property",
"and as the police station is a place where there will also be custody of property, it will",
"also come under the definition of ""Building"" in section 442 IPC, 1860.680.",
"673. Appukuttan v State, 2010 Cr LJ. 3186 .",
674. Vide Explanation.,
"675. Dinesh Thakur, 1970 Cr LJ 1199 .",
"676. Md. Sahabuddin v Sayed Monowar Hussain, 1999 Cr LJ. 349 (Gau).",
"677. Moir v Williams, (1892) 1 QB 264 , 270.",
"678. Palani Goundan, (1896) 1 Weir 523.",
"679. Rajoo v State, 1977 Cr LJ 837 (Raj).",
"680. State of Karnataka v Richard, 2008 Cr LJ 2200 (Kar).",
THE INDIAN PENAL CODE,
CHAPTER XVII OF OFFENCES AGAINST PROPERTY,
Of Theft,
Of Criminal Trespass,
[s 443] Lurking house-trespass.,
Whoever commits house-trespass having taken precautions to conceal such house-,
trespass from some person who has a right to exclude or eject the trespasser from,
"the building, tent or vessel which is the subject of the trespass, is said to commit",
"""lurking house-trespass"".",
COMMENT—,
"The authors of the Code say: ""House-trespass, again, may be aggravated by being",
committed in a surreptitious or in a violent manner. The former aggravated form of,
house-trespass we designate as lurking house-trespass; the latter we designate as,
"house-breaking. Again, house-trespass, in every form, may be aggravated by the time at",
"which it is committed. Trespass of this sort has, for obvious reasons, always been",
considered as a more serious offence when committed by night than when committed,
"by day. Thus, we have four aggravated forms of that sort of criminal trespass which we",
"designate as house-trespass, lurking house-trespass, house-breaking, lurking house-",
"trespass by night, and house-breaking by night"".",
"""These are aggravations arising from the way in which the criminal trespass is",
committed. But criminal trespass may also be aggravated by the end for which it is,
committed. It may be committed for a frolic. It may be committed in order to (commit),
"a murder. It may also often happen that a criminal trespass which is venial, as respects",
"the mode, may be of the greatest enormity as respects the end; and that a criminal",
trespass committed in the most reprehensible mode may be committed for an end of,
"no great atrocity. Thus, A may commit house-breaking by night for the purpose of",
playing some idle trick on the inmates of a dwelling. B may commit simple criminal,
trespass by merely entering another's field for the purpose of murder or gang-robbery.,
Here A commits trespass in the worst way. B commits trespass with the worst object.,
In our provisions we have endeavoured to combine the aggravating circumstances in,
such a way that each may have its due effect in settling the punishment.681. The law is,
well settled that unless the accused is alleged to have taken some active steps and,
"means to conceal his presence, the allegation that the house-trespass was committed",
"by night and the darkness helped the accused in concealing his presence, does not and",
cannot justify a charge for the offence of committing lurking house-trespass. But if the,
"house-trespass is a lurking house-trespass"" as defined in section 443, IPC, 1860,",
"because of the offender having taken some active steps to conceal his presence, it",
"becomes automatically lurking house-trespass by night under section 444, IPC, 1860, if",
it is committed after sunset and before sunrise.682.,
[s 443.1] CASES.—,
Entry upon the roof of a building may be criminal trespass. But it cannot sustain a,
"conviction for lurking house-trespass,683. or for house-breaking.684.",
"681. Note N, p 168.",
"682. Prem Bahadur, 1978 Cr LJ 945 (Sikkim); see also Dasai Kandu, 1979 Cr LJ NOC 110 (Pat);",
"Bejoy Kumar Mohapatra, 1982 Cr LJ 2162 (Ori).",
"683. Alla Bakhsh, (1886) PR No. 9 of 1887.",
"684. Fazla, (1890) PR No. 9 of 1890.",
THE INDIAN PENAL CODE,
CHAPTER XVII OF OFFENCES AGAINST PROPERTY,
Of Theft,
Of Criminal Trespass,
[s 444] Lurking house-trespass by night.,
"Whoever commits lurking house-trespass after sunset and before sunrise, is said to",
"commit ""lurking house-trespass by night"".",
THE INDIAN PENAL CODE,
CHAPTER XVII OF OFFENCES AGAINST PROPERTY,
Of Theft,
Of Criminal Trespass,
[s 445] House-breaking.,
"A person is said to commit ""house-breaking"" who commits house-trespass if he",
effects his entrance into the house or any part of it in any of the six ways hereinafter,
"described; or if, being in the house or any part of it for the purpose of committing an",
"offence, or, having committed an offence therein, he quits the house or any part of it",
"in any of such six ways, that is to say—",
"First.—If he enters or quits through a passage by himself, or by any abettor of the",
"house-trespass, in order to the committing of the house-trespass.",
"Secondly.—If he enters or quits through any passage not intended by any person,",
"other than himself or an abettor of the offence, for human entrance; or through any",
passage to which he has obtained access by scaling or climbing over any wall or,
building.,
Thirdly.—If he enters or quits through any passage which he or any abettor of the,
"house-trespass has opened, in order to the committing of the house-trespass by any",
means by which that passage was not intended by the occupier of the house to be,
opened.,
Fourthly.—If he enters or quits by opening any lock in order to the committing of the,
"house-trespass, or in order to the quitting of the house after a house-trespass.",
Fifthly.—If he effects his entrance or departure by using criminal force or committing,
an assault or by threatening any person with assault.,
Sixthly.—If he enters or quits by any passage which he knows to have been fastened,
"against such entrance or departure, and to have been unfastened by himself or by an",
abettor of the house-trespass.,
"Explanation.—Any out-house or building occupied with a house, and between which",
"and such house there is an immediate internal communication, is part of the house",
within the meaning of this section.,
ILLUSTRATIONS,
"(a) A commits house-trespass by making a hole through the wall of Z's house, and",
putting his hand through the aperture. This is house-breaking.,
(b) A commits house-trespass by creeping into a ship at a port-hole between decks.,
This is house-breaking.,
(c) A commits house-trespass by entering Z's house through a window. This is,
house- breaking.,
"(d) A commits house-trespass by entering Z's house through the door, having",
opened a door which was fastened. This is house-breaking.,
"(e) A commits house-trespass by entering Z's house through the door, having lifted",
a latch by putting a wire through a hole in door. This is house-breaking.,
"(f) A finds the key of Z's housedoor, which Z had lost, and commits house-trespass",
"by entering Z's house, having opened the door with that key. This is house-",
breaking.,
"(g) Z is standing in his doorway. A forces a passage by knocking Z down, and",
commits house-trespass by entering the house. This is house-breaking.,
"(h) Z, the door-keeper of Y, is standing in Y's doorway. A commits house-trespass by",
"entering the house, having deterred Z from opposing him by threatening to beat",
him. This is house-breaking.,
COMMENT—,
Invasion of a person's residence should naturally be meted out with deterrent,
punishment. This section describes six ways in which the offence of house-breaking,
may be committed. Clauses 1–3 deal with entry which is effected by means of a,
passage which is not ordinary. Clauses 4–6 deal with entry which is effected by force.,
Where a hole was made by burglars in the wall of a house but their way was blocked by,
"the presence of beams on the other side of the wall, it was held that the offence",
committed was one of attempt to commit house-breaking and not actual house-,
"breaking, and illustration (a) to this section did not apply.685.",
"685. Ghulam, (1923) 4 Lah 399. See Bhagwan Das v State of UP, 1990 Cr LJ 916 (All), there",
being no evidence that the accused was armed with any weapons whatsoever or anybody had,
"received injury, the offence was converted from one under section 395 to section 448.",
THE INDIAN PENAL CODE,
CHAPTER XVII OF OFFENCES AGAINST PROPERTY,
Of Theft,
Of Criminal Trespass,
[s 446] House-breaking by night.,
"Whoever commits house-breaking after sunset and before sunrise, is said to commit",
"""house-breaking by night"".",
COMMENT—,
The preceding section contains an elaborate definition of house-breaking. The addition,
in this section of the element of time turns the offence into 'house-breaking by night'.,
The analysis of this offence suggests a division of its ingredients into (1) the breaking;,
(2) the entry; (3) the place; (4) the time; and (5) the intent.,
THE INDIAN PENAL CODE,
CHAPTER XVII OF OFFENCES AGAINST PROPERTY,
Of Theft,
Of Criminal Trespass,
[s 447] Punishment for criminal trespass.,
Whoever commits criminal trespass shall be punished with imprisonment of either,
"description for a term which may extend to three months, with fine or which may",
"extend to five hundred rupees, or with both.",
COMMENT—,
A party claimed title by adverse possession. The other filed a complaint for criminal,
trespass. The complaint was dismissed for the fact that the dispute was of civil nature.,
It was held that such acquittal did not have the effect of proving the existence of title,
by adverse possession.686. Where the land in question was not shown to be in the,
"exclusive possession of the complainant, and the accused having his right of entry, his",
entry into the land did not constitute a criminal trespass.687. Where certain land was,
"allotted to the complainant but the same was already in the possession of the accused,",
the offence of criminal trespass was not made out because mere occupation even if,
illegal cannot amount to criminal trespass.688.,
[s 447.1] Continuing offence.—,
Trespass is a continuing offence. Allegation is that petitioners had constructed a wall,
on the retaining wall of the complainant. The petitioners in the petition have not,
"projected the case that they had removed alleged wall. Thus, it is a continuing offence",
"under section 472 Cr PC, 1973. The bar of limitation is not applicable.689.",
"686. Jageshwar Ramsahay Ahir v Parmeshwar, AIR 2000 MP 223 [LNIND 1999 MP 382] .",
"687. Dhanna Ram v State of Rajasthan, 2000 Cr LJ 1204 (Raj).",
"688. State of Rajasthan v Dipti Ram, 2001 Cr LJ 3910 (Raj); Janggu v State of MP, 2000 Cr LJ 711",
(MP) here also the complainant could not prove his possession. Paramjeet Batra v State of,
Uttarakhand; JT 2012 (12) SC 393 [LNIND 2012 SC 812] : 2012 (12) Scale 688 [LNIND 2012 SC,
812] -proceedings quashed as it appears to be essentially a civil dispute,
"689. Jasbir Singh v State of Himachal Pradesh, 2012 Cr LJ 2955 (HP).",
THE INDIAN PENAL CODE,
CHAPTER XVII OF OFFENCES AGAINST PROPERTY,
Of Theft,
Of Criminal Trespass,
[s 448] Punishment for house-trespass.,
Whoever commits house-trespass shall be punished with imprisonment of either,
"description for a term which may extend to one year, or with fine which may extend to",
"one thousand rupees, or with both.",
COMMENT—,
In order to sustain conviction under the section it has to be found that the intention of,
"the accused to commit an offence or intimidate, insult or annoy the complainant. There",
must be an unlawful entry and there must be proof of one or the other of the intentions,
"mentioned in section 441. In this case, the evidence produced clearly established the",
offence.690. The complainant was allotted a shop by the Rehabilitation Department,
"because of his being a displaced person, but the accused persons did not allow him to",
enter the shop. Though the accused persons entered the shop lawfully they retained it,
unlawfully and dishonestly for more than 37 years. They were held to be guilty under,
this section read with section 34. The complainant died during the revision petition.,
The accused persons' conviction was maintained but they were released on probation,
and directed to restore the shop to the complainant's son.691. Allegation was that,
accused went to house of victim in order to commit offence of rape. Though rape was,
not committed at house of victim but committed at house of accused but entry of,
accused into house of victim was with intent to commit offence of rape. Accused is,
"liable to be convicted under section 448 IPC, 1860.692.",
"[s 448.1] Accused acquitted of main offence, trespass stands.—",
Case of trespass and culpable homicide. Cause of death was not clearly established.,
There might have been some jostling but that did not lead to the death of the victim.,
The cardiac arrest cannot be attributed to this act of the accused. Though the accused,
"was acquitted of the offence under section 304, he was found to be guilty of section",
447.693.,
"690. Vidyadharan v State of Kerala, (2004) 1 SCC 215 [LNIND 2003 SC 985] : AIR 2004 SC 536",
[LNIND 2003 SC 985] : (2004) 1 KLT 105 [LNIND 2003 SC 985] : 2004 Cr LJ 605 : (2004) 2 MPLJ,
251 .,
"691. Kirpal Singh v Wazir Singh, 2001 Cr LJ 1566 (Del); NC Singhal (Dr.) v State, 1998 Cr LJ 3568",
"(Del), the petitioner was carrying on medical practice in a licenced chamber of which the",
respondent always had actual physical possession. He alleged that the respondent demolished,
the chamber and committed theft of his books and equipment. The court found that there was,
written notice to the petitioner of demolition and also that the charge of theft was vague,
because no details of books and equipment alleged to be stolen were given. See also Ram,
"Chandra Singh v Nabrang Rai Burma, 1998 Cr LJ 2156 (Ori); Bimal Ram v State of Bihar, 1997 Cr",
"LJ 2846 (Pat), house trespass, the testimony of a witness could not be thrown overboard just",
"only because he was a chance witness. Conviction. Chintamani Sethi v Raghunath Mohanty,",
"2003 Cr LJ 2866 (Ori), complaint against the Sarpanch was found to be motivated for other",
"reasons, hence, dismissed. Kishori Lal Agarwal v Ram Chandra Sindhi, 2003 Cr. LJ 2299 (All),",
"charge on tenant that he occupied an additional room in the house, he was given notice to",
"vacate, the notice did not specify the date within which he should do so. An offence under the",
"section, held, not made out.",
"692. Krishna Bordoloi v State of Assam, 2012 Cr LJ 4099 (Gau).",
"693. Bappa Malik v The State of West Bengal, 2016 Cr LJ 95 (Cal).",
THE INDIAN PENAL CODE,
CHAPTER XVII OF OFFENCES AGAINST PROPERTY,
Of Theft,
Of Criminal Trespass,
[s 449] House-trespass in order to commit offence punishable with death.,
Whoever commits house-trespass in order to the committing of any offence,
"punishable with death, shall be punished with 694.[imprisonment for life], or with",
"rigorous imprisonment for a term not exceeding ten years, and shall also be liable to",
fine.,
COMMENT—,
"An act can be said to be committed ""in order to the committing of an offence"" even",
"though the offence may not have been completed. The words ""in order to"" have been",
"used to mean ""with the purpose of"".695.",
[s 449.1] Sentence to run concurrently.—,
"Offence under sections 302, 392, 404 and 449 committed in a gruesome manner.",
Considering the macabre nature of the crime the Court ordered the sentence to run,
consecutively.696.,
"694. Subs. by Act 26 of 1955, section 117 and Sch, for ""transportation for life"" (w.e.f. 1 January",
1956).,
"695. Matiullah, AIR 1965 SC 132 [LNIND 1964 SC 56] . See the decision of the Supreme Court in",
"Laxmi Raj Shetty v State of TN, AIR 1988 SC 1274 [LNIND 1988 SC 260] : (1988) 3 SCC 319",
"[LNIND 1988 SC 260] , where death sentence for bank robbery and murder was reduced to life",
"imprisonment. Bhaskar Chattoraj v State of WB, 1991 Cr LJ 451 (SC) : AIR 1991 SC 317 . One of",
"the accused against whom there was no evidence, discharged. Satrughana Lamar v State, 1998",
"Cr LJ 1588 , the accused entered into a hut, killed a person there with an axe, seen coming out",
"with axe, recovery of weapon at his instance, conviction under sections 304/349 held proper.",
"Muniappan v State of TN, 1997 Cr LJ 2336 (Mad), charge of beating and murder not proved. All",
round failure of evidence.,
"696. K Ramajayam v The Inspector of Police, 2016 Cr LJ 1542 (Mad) : 2016 (2) CTC 135 [LNIND",
2016 MAD 88] .,
THE INDIAN PENAL CODE,
CHAPTER XVII OF OFFENCES AGAINST PROPERTY,
Of Theft,
Of Criminal Trespass,
[s 450] House-trespass in order to commit offence punishable with,
imprisonment for life.,
Whoever commits house-trespass in order to the committing of any offence,
"punishable with 697.[imprisonment for life], shall be punished with imprisonment of",
"either description for a term not exceeding ten years, and shall also be liable to fine.",
698.,
COMMENT—,
Section 450 deals with house trespass in order to commit offence punishable with life,
"imprisonment. In the case, where the offence punishable with life imprisonment has",
"been ruled out, one would have to look into actual act of the accused person. The act",
of the appellant is that of assaulting the complainant with chopper. The injury caused,
"by the appellant is a simple injury. In such case, it would not attract life imprisonment",
"and hence, section 450 of the IPC, 1860 would not be attracted.699.",
[s 450.1] Murder and house trespass.—,
"Where accused entered the house of deceased and killed him by giving sword blow,",
"and his wife, who was the eye-witness to the incident lodged FIR within a period of",
"three hours, it was held that accused was rightly convicted under sections 450 and 302",
"of IPC, 1860.700.",
[s 450.2] Rape and House trespass.—,
"Where the victim aged above 18 years alleged that while she was sleeping, accused",
entered her house and she woke-up when he was committing sexual intercourse with,
"her, and it was proved that she did not bolted door of house from inside and when she",
"woke-up she did not raise alarm for help, it was held that offences are not made",
out.701. Where it was proved that the accused entered the mentally challenged victim's,
"house, threw her on the cot and after removing her underwear committed forcible",
"sexual intercourse with her, conviction under section 450 and section 376 IPC, 1860",
was upheld.702.,
"697. Subs. by Act 26 of 1955, section 117 and Sch, for ""transportation for life"" (w.e.f. 1 January",
1956).,
"698. Her Chand v State of Rajasthan, 1997 Cr LJ 345 (Raj), entry into parental house to which the",
"right of access was there. Hence, criminal trespass was not made out. Surjit Singh v State of",
"Punjab, (2007) 15 SCC 391 [LNIND 2007 SC 724] , 5 policemen were accused of entering into",
the house of a woman with the intention to rape her. Their attempt was foiled by her sons who,
"cried for help. On the suggestion of one of them, the other killed the woman. They were not the",
persons before the court. These two were neither involved in killing nor there any evidence of,
common intention. Criminal trespass into the house was established against them. They were,
convicted for the same.,
"699. Mohd. Kamar Abdul Ansari v State of Maharashtra, 2008 Cr LJ 4736 (Bom).",
"700. Mohanlal v State of Rajasthan, 2012 Cr LJ 769 (Raj); Bablu Alias Mahendra v State of",
"Madhya Pradesh, 2009 Cr LJ 1856 (MP)-material witnesses are not examined and evidence of",
identification is doubtful. Accused is entitled to benefit of doubt.,
"701. Prahalad Mohanlal Sahu v State of Chhattisgarh, 2013 Cr LJ 1726 (SC); Ramesh v State,",
"2011 Cr LJ. 3816 (Mad); Wilson David v State of Chhattisgarh, 2009 Cr LJ 1402 (Chh).",
"702. Jhaduram Sahu v State of Chhattisgarh, 2013 Cr LJ 1722 (Chh); Moti Lal v State of MP, 2008",
"Cr LJ 3543 (SC);2008 (11) SCC 20 [LNIND 2008 SC 1427] ; Sadan v State of Madhya Pradesh,",
2011 Cr LJ 2488 (MP).,
THE INDIAN PENAL CODE,
CHAPTER XVII OF OFFENCES AGAINST PROPERTY,
Of Theft,
Of Criminal Trespass,
[s 451] House-trespass in order to commit offence punishable with,
imprisonment.,
Whoever commits house-trespass in order to the committing of any offence,
"punishable with imprisonment, shall be punished with imprisonment of either",
"description for a term which may extend to two years, and shall also be liable to fine;",
"and if the offence intended to be committed is theft, the term of the imprisonment",
may be extended to seven years.,
COMMENT—,
This section is similar to sections 449 and 450. It provides punishment for house-,
trespass committed with intent to commit an offence punishable with imprisonment.,
"Where the accused was convicted of house-breaking, his object being to have sexual",
"intercourse with the complainant's wife, it was held that the conviction was valid.703.",
The accused was held to be guilty of the offence under section 450 (lurking house-,
trespass where he entered the house at mid-night getting easy access because of,
acquaintance with the family and forcibly raped the victim girl finding her alone in her,
room. He was punished for rape and lurking house-trespass for committing an,
offence.704. Accused persons committed house trespass in order to commit an,
offence punishable with imprisonment. They went to the house of complainant with,
"preparation by holding sticks in their hands for assaulting the complainant. Therefore,",
"all the four accused are liable to be convicted under section 451 of the IPC, 1860.705.",
Where evidence shows that accused after entering the house unlawfully remained,
there and had even intimidated and insulted and annoyed the victim when they were,
called upon to quit the house. Court held that conduct of the accused will clearly come,
"within the latter part of section 441 IPC, 1860 and the same will be punishable under",
"section 451 IPC, 1860.706. There is enough material to show that the appellant had",
"committed house trespass, however, not with intention to commit offence punishable",
"with life imprisonment, hence, in such case section 451 IPC, 1860 would be attracted",
instead of section 450.707. The accused trespassed into the house of the victim girl,
who was nearly about ten years of age on the date of occurrence and committed,
unnatural offence on her. After finding the victim alone in the house the accused,
committed unnatural offence by putting his penis having carnal intercourse against,
order of nature. Order of acquittal is reversed by the Supreme Court.708.,
It was alleged that the accused trespassed into the house of the victim when she was,
all alone in order to commit rape. But there was no evidence of any preparation or,
attempt to rape. The conviction under section 452 was held to be not proper. Since the,
trespass was not for any pious purpose because an offence under section 354,
"(outraging modesty) was likely to be involved, conviction was recorded under section",
451.709. In another case the Courts below observed that from the evidence of PWs 1,
and 2 it is seen that theft had taken place in the room in which PW 2 was sleeping; the,
thief entered the house and committed theft of gold chain which PW 2 was wearing,
"and, therefore, this act will be covered by section 451 of the IPC, 1860, i.e., house-",
trespass in order to commit offence punishable with imprisonment. A1 and A3 have,
"been acquitted because nothing links them to the offence. But, similar is the case with",
the appellant. The only evidence against him is the alleged recovery of gold chain at his,
instance. That cannot connect the appellant to the offence.710.,
The accused was convicted for house trespass for committing unnatural offence. The,
accused was convicted by the trial court but acquitted by the High Court because of no,
corroboration of the testimony of the victim. The Supreme Court restored the,
"conviction and observed that corroboration could not be required as a fossil formula,",
even if the story revealed by the victim appeals to the judicial mind as probable.711.,
703. (1875) 8 MHC (Appex) vi.,
"704. Pacigi Narasimha v State of AP, 1996 Cr LJ 2997 (AP).",
"705. State of Maharashtra v Tatyaba Bajirao Jadhav, 2011 Cr LJ 2717 (Bom).",
"706. Appukuttan v State, 2010 Cr LJ. 3186 .",
"707. Mohd. Kamar Abdul Ansari v State of Maharashtra, 2008 Cr LJ 4736 (Bom).",
"708. State v Antony, (2007) 1 SCC 627 [LNIND 2006 SC 940] : AIR 2007 SC Supp 1828.",
"709. Ram Pratap v State of Rajasthan, 2002 Cr LJ 1450 (Raj). Gulam v State of Madhya Pradesh,",
2011 Cr LJ 179,
"710. Azeez v State, (2013) 2 SCC 184 [LNIND 2013 SC 54] ; Alistait v State, (2009) 17 SCC 794 .",
"711. State of Kerala v Kurissum Moottil Antony, (2007) 1 scc 627.",
THE INDIAN PENAL CODE,
CHAPTER XVII OF OFFENCES AGAINST PROPERTY,
Of Theft,
Of Criminal Trespass,
"[s 452] House-trespass after preparation for hurt, assault or wrongful restraint.",
"Whoever commits house-trespass, having made preparation for causing hurt to any",
"person, or for assaulting any person, or for wrongfully restraining any person, or for",
"putting any person in fear of hurt, or of assault, or of wrongful restraint, shall be",
punished with imprisonment of either description for a term which may extend to,
"seven years, and shall also be liable to fine.",
COMMENT—,
The Legislature has enacted this section to provide higher punishment where house-,
"trespass is committed in order to cause hurt, or to assault, or to wrongfully restrain any",
"person. For a conviction under this section, it is necessary to prove that the dominant",
intention of the accused was to cause hurt to or to assault or to wrongfully restrain any,
"person.712. Preparation is the genesis of offence under section 452 of IPC, 1860. In",
"absence of it being proved that any device as a metal rod, crow bar or even a stick was",
"used by the accused due to which it could be described as ""preparation for commission",
"of offence,"" it appears to be impossible to hold that there exists adequate material even",
"to frame the charge for offence under section 452 of IPC, 1860.713. Criminal trespass is",
committed by the accused when they entered the house of an individual with a view to,
"insult, intimidate or annoy such owner of the house/property. If the accused entered",
"the house of an individual to insult, intimidate or annoy any person other than the",
"owner of the property, it would not constitute criminal trespass. Once the conduct of",
"the accused is not criminal trespass, it would not be house trespass and would not",
"become punishable under section 452 IPC, 1860.714.",
"712. Pirmohammad, AIR 1960 MP 24 [LNIND 1959 MP 33] . Syam Lal v State of HP, 2002 Cr LJ",
"3178 (HP), murder, rioting and house trespass, conviction. Raghunandan Pd. v State of UP, 1998",
"Cr LJ 1571 (All), probably accused persons were in possession and complainants fired at them",
"causing gunshot injuries thus, the accused persons had the right of private defence of person",
"and property and were given the benefit of doubt. See also Jai Narain v State of Rajasthan, 1998",
"Cr LJ 2199 (Raj); Devkaran v State of Rajasthan, 1998 Cr LJ 3883 (Raj). Rala Singh v State, 1997",
"Cr LJ 1313 (P&H), in a charge of trespass and kidnapping against the accused persons, the",
victim gave her age to be 20 years. She was examined but not subjected to ossification test.,
School leaving certificate showed her age to be 18 but her parents were not examined for,
corroboration. Guilt not proved beyond reasonable doubt.,
"713. Subhash Sahebrao Datkar v State of Maharashtra, 2011 Cr LJ 736 (Bom); Chandreee v State",
2011 (3) Crimes 215 (Raj)-although there is no evidence on record that the present accused,
"Chandraee entered the house of the complainant with any preparation, therefore, the essential",
"fact of preparation is missing in the evidence and in the absence of any preparation, the offence",
"under section 452 IPC, 1860 cannot be said to be made out and thus, the offence of the",
"accused petitioner comes within the purview of section 451 IPC, 1860.",
"714. Koduri Venkata Rao v State of A P, 2011 Cr LJ. 3512 (AP).",
THE INDIAN PENAL CODE,
CHAPTER XVII OF OFFENCES AGAINST PROPERTY,
Of Theft,
Of Criminal Trespass,
[s 453] Punishment for lurking house-trespass or house-breaking.,
"Whoever commits lurking house-trespass or house-breaking, shall be punished with",
"imprisonment of either description for a term which may extend to two years, and",
shall also be liable to fine.,
COMMENT—,
This section provides penalty for the offences defined in sections 443 and 444.,
"In all ""house-breaking"" there must be ""house-trespass"", and in all ""house-trespass"" there",
"must be ""criminal trespass"". Unless, therefore, the intent necessary to prove ""criminal",
"trespass"" is present, the offence of house-breaking or house-trespass cannot be",
committed. Where accused simply unlatched the chain and entered house of,
complainant in the night and there was nothing to show that any device such as metal,
"rod, crow bar or even a stick was used by accused. It was held that preparation for",
commission of offence not proved. It is also held that house trespass without,
"preparation is covered under section 453 IPC, 1860, not under section 452 IPC,",
1860.715.,
"715. Subhash Sahebrao Datkar v State of Maharashtra, 2011 Cr LJ 736 (Bom).",
THE INDIAN PENAL CODE,
CHAPTER XVII OF OFFENCES AGAINST PROPERTY,
Of Theft,
Of Criminal Trespass,
[s 454] Lurking house-trespass or house-breaking in order to commit offence,
punishable with imprisonment.,
"Whoever commits lurking house-trespass or house-breaking, in order to the",
"committing of any offence punishable with imprisonment, shall be punished with",
"imprisonment of either description for a term which may extend to three years, and",
"shall also be liable to fine; and if the offence intended to be committed is theft, the",
term of the imprisonment may be extended to ten years.,
State Amendment,
"Tamil Nadu.—The following amendments were made by Tamil Nadu Act No. 28 of 1993,",
Section 4.,
"Section 454 of the Principal Act, shall be renumbered as sub-section (1) of that section",
"and after sub-section (1) as to renumbered, the following sub-section shall be added,",
namely:—,
"""(2) Whoever commits lurking house-trespass or house-breaking in any building used",
"as a place of worship, in order to the committing of the offence of theft of any idol or",
"icon from such building, shall notwithstanding anything contained in sub-section (1), be",
punished with rigorous imprisonment which shall not be less than three years but,
which may extend to ten years and with fine which shall not be less than five thousand,
rupees:,
"Provided that the court may, for adequate and special reasons to be mentioned in the",
"judgment, impose a sentence of imprisonment for a term of less than three years.""",
COMMENT—,
This is an aggravated form of the offence described in the last section. The latter,
portion of this section is framed to include the cases of house-trespassers and house-,
"breakers by night who have not only intended to commit, but have actually committed,",
theft.716. Though the relationship between parties is of landlord and tenant and,
"accused is tenant in complainant's premises, It cannot be said that origin of dispute",
being of civil nature. It is held that criminal proceedings are maintainable.717.,
[s 454.1] Section 380 and section 454.—,
"In view of the conviction for section 454 of the IPC, 1860, separate conviction for the",
"offence under section 380 of the IPC, 1860 is not needed as the offence under section",
454 also includes section 380.718.,
"716. Zor Singh, (1887) 10 All 146 . See Khuda Bakhsh, (1886) PR No. 10 of 1886. Breaking open",
a person's godown and throwing out articles is an offence under this section. Balai Chandra,
"Nandy v Durga Charan Banerjee, 1988 Cr LJ 710 (Cal).",
"717. Balwant Singh Chuphal v State of Uttaranchal, 2007 Cr LJ 1362 (Utt); Kana Ram v State of",
"Rajasthan, 2002 Cr LJ 1867 (Raj)-possession of house/room in question remained with accused",
petitioner. Offence not made out.,
"718. K E Lokesha v State of Karnataka, 2012 Cr LJ 2120 (Kar).",
THE INDIAN PENAL CODE,
CHAPTER XVII OF OFFENCES AGAINST PROPERTY,
Of Theft,
Of Criminal Trespass,
"[s 455] Lurking house-trespass or house-breaking after preparation for hurt,",
assault or wrongful restraint.,
"Whoever commits lurking house-trespass, or house-breaking, having made",
"preparation for causing hurt to any person, or for assaulting any person, or for",
"wrongfully restraining any person, or for putting any person in fear of hurt, or of",
"assault, or of wrongful restraint, shall be punished with imprisonment of either",
"description for a term which may extend to ten years, and shall also be liable to fine.",
COMMENT—,
The relation between this section and section 435 is the same as that between,
sections 452 and 450. This section is similar to section 458. The only difference is that,
"the trespass here is committed by day, whereas under section 458 it is committed",
during night.,
THE INDIAN PENAL CODE,
CHAPTER XVII OF OFFENCES AGAINST PROPERTY,
Of Theft,
Of Criminal Trespass,
[s 456] Punishment for lurking house-trespass or house-breaking by night.,
"Whoever commits lurking house-trespass by night, or house-breaking by night, shall",
be punished with imprisonment of either description for a term which may extend to,
"three years, and shall also be liable to fine.",
COMMENT—,
Lurking house-trespass or house-breaking is ordinarily punishable under section 453;,
"but when it is committed at night, this section is applicable. The intent necessary to",
prove 'criminal trespass' must be present and the Court must come to a definite,
inference as to the intention with which the entry was effected.719. Where the accused,
"persons, execution creditors, broke open the complainant's door before sunrise with",
"intent to distrain his property, for which they were convicted on a charge of lurking",
"house-trespass by night or house-breaking by night, it was held that as they were not",
guilty of the offence of criminal trespass the conviction must be quashed.720.,
"719. Sankarsan, 1957 Cr LJ 286 .",
"720. Jotharam Davay, (1878) 2 Mad 30.",
THE INDIAN PENAL CODE,
CHAPTER XVII OF OFFENCES AGAINST PROPERTY,
Of Theft,
Of Criminal Trespass,
[s 457] Lurking house-trespass or house-breaking by night in order to commit,
off-ence punishable with imprisonment.,
"Whoever commits lurking house-trespass by night, or house-breaking by night, in",
"order to the committing of any offence punishable with imprisonment, shall be",
punished with imprisonment of either description for a term which may extend to five,
"years, and shall also be liable to fine; and, if the offence intended to be committed is",
"theft, the term of the imprisonment may be extended to fourteen years.",
State Amendment,
"Tamil Nadu.—The following amendments were made by Tamil Nadu Act No. 28 of 1993,",
Section 5.,
"Section 457 of the principal Act, shall be renumbered as sub-section (1) of that section",
"and after sub-section (1) as to renumbered, the following sub-section shall be added,",
namely:—,
"""(2) Whoever commits lurking house-trespass by night or house-breaking by night in",
"any building used as a place of worship, in order to the committing of the offence of",
"theft of any idol or icon from such building, shall, notwithstanding anything contained",
"in sub-section (1), be punished with rigorous imprisonment which shall not be less than",
three years but which may extend to fourteen years and with fine which shall not be,
less than five thousand rupees:,
"Provided that the court may, for adequate and special reasons to be mentioned in the",
"judgment, impose a sentence of imprisonment for a term of less than three years.""",
"U.P.—The following amendments were made by U.P Act No. 24 of 1995, Section 11.",
"Section 457 of the principal Act, shall be renumbered as sub-section (1) of that section",
"and after sub-section (1) as to renumbered, the following sub-section shall be added,",
namely:—,
"""(2) Whoever commits lurking house-trespass by night or house breaking by night in",
any building used as a place of worship in order to the committing of the offence of,
theft of any idol or icon from such building shall notwithstanding anything contained in,
sub-section (1) be punished with rigorous imprisonment which shall not be less than,
three years but which may extend to fourteen years and with fine which shall not be,
less than five thousand rupees:,
"Provided that the court may, for adequate and special reasons to be mentioned in the",
"judgment, impose a sentence of imprisonment for a term of less than three years.""",
COMMENT—,
The offence under this section is an aggravated form of the offence described in the,
"preceding section. When a person is charged under section 457 IPC, 1860, on the",
allegation that he entered the dwelling house of another person with the intention of,
committing theft it will not be legal to convict him under section 456 on the ground that,
the entry was made with the intention of committing some other offence or with the,
intention of annoying or insulting the inmates.721.,
[s 457.1] For committing offence under the section.—,
"To constitute an offence under section 457, it is necessary to prove that house",
trespass or breaking at night was committed in order to commit any offence,
punishable under this section. The mere fact that house trespass was committed at,
night does not attract the offence of lurking house trespass within the meaning of this,
section.722.,
"721. Sankarasan Boral v State, 1957 Cr LJ 286 ; Narayanan v State, AIR 1962 Ker.81 [LNIND 1961",
KER 232] .,
"722. Kandarpa Thakuria v State of Assam, 1992 Cr LJ 3084 (Gau). State of Rajasthan v Vinod,",
"2002 Cr LJ 1308 (Raj), the accused and his family were proved to be persons known to the",
complainant being neighbours. The entry into the house could not be proved to be with the,
intention of committing an offence punishable with imprisonment. The finding of acquittal was,
"not interfered with. Satyanarayanan v State of Rajasthan, 2000 Cr LJ 2529 (Raj) accused entered",
"house at night, beat up the girl and subjected her to rape, conviction under section 458 was",
altered to one under section 457 as the accused had not committed lurking house trespass. He,
"had made preparation for assault. Harjit Singh v State of Haryana, 1999 Cr LJ 580 (SC) offence",
"under sections 457, 392, 397, 307, 332, 34, made out. See also R Trinath v State of Orissa, 1998",
"Cr LJ 3458 (Ori). Joseph v State of Kerala, 1997 Cr LJ 4289 (Ker), case of theft not made out.",
"Raghabacharan Panda v V Dindayal Patra, 2003 Cr LJ 1307 (Ori), allegation that the shop of the",
"chemist broken open by the landlord and handed over to another person for another purpose,",
evidence was in favour of the accused land lord and his new tenant. Benefit of doubt. Md.,
"Siddique Hussain v State of Assam, 2003 Cr LJ 1487 (Gau), it was difficult for the court to believe",
that any one should force his way to the house of another just only to committing a hurt. Benefit,
of doubt.,
THE INDIAN PENAL CODE,
CHAPTER XVII OF OFFENCES AGAINST PROPERTY,
Of Theft,
Of Criminal Trespass,
[s 458] Lurking house-trespass or house-breaking by night after preparation,
"for hurt, assault, or wrongful restraint.",
"Whoever commits lurking house-trespass by night, or house-breaking by night, having",
"made preparation for causing hurt to any person or for assaulting any person, or for",
"wrongfully restraining any person, or for putting any person in fear of hurt, or of",
"assault, or of wrongful restraint, shall be punished with imprisonment of either",
"description for a term which may extend to fourteen years, and shall also be liable to",
fine.,
COMMENT—,
This section is similar to sections 452 and 455. To prove the charge for the offence,
"under section 458, IPC, 1860, the prosecution must prove:—",
"(i) that the accused committed lurking house-trespass by night, or house-breaking",
by night;,
"(ii) that he did as above after having made preparation for causing hurt, or for",
"assaulting, or for wrongfully restraining some person, or for putting some one in",
"fear of hurt, assault or wrongful restraint.723.",
It only applies to the house-breaker who actually has himself made preparation for,
"causing hurt to any person, etc., and not to his companions as well who themselves",
have not made such preparation.724. There should also be some evidence of lurking,
"house-trespass, as defined in section 443, IPC, 1860.",
[s 458.1] Section 458 is not a cognate offence of section 398.—,
"The accused was charged under section 398 of IPC, 1860 and section 25(1)(A) and",
"section 27 of the Arms Act, 1959. Trial Court acquitted the accused from both the",
"charges holding that prosecution has failed to prove the charges however, come to the",
"conclusion that the accused committed an offence under section 458 of IPC, 1860. The",
High Court held that section 458 of Penal Code in no way was a cognate offence of,
"offence under section 398, IPC, 1860. Hence, conviction for offence under section 458",
"IPC, 1860 without framing charge is liable to be set aside.725.",
"723. Pania v State, 2002 Cr LJ 3050 (Raj).",
"724. Ghulam, (1923) 4 Lah 399.",
"725. Manik Miah v State of Tripura, 2013 Cr LJ 1899 (Gau).",
THE INDIAN PENAL CODE,
CHAPTER XVII OF OFFENCES AGAINST PROPERTY,
Of Theft,
Of Criminal Trespass,
[s 459] Grievous hurt caused whilst committing lurking house-trespass or,
house-breaking.,
"Whoever, whilst committing lurking house-trespass or house-breaking, causes",
"grievous hurt to any person or attempts to cause death or grievous hurt to any person,",
"shall be punished with 726.[imprisonment for life], or imprisonment of either",
"description for a term which may extend to ten years, and shall also be liable to fine.",
COMMENT—,
The offence under this section is an aggravated form of the offence described in,
section 453.,
"This and the following section provide for a compound offence, the governing incident",
of which is that either a 'lurking house-trespass' or 'house-breaking' must have been,
"completed in order to make a person, who accompanies that offence either by causing",
"grievous hurt or attempt to cause death or grievous hurt, responsible under those",
sections.727.,
"During the period house-breaking lasts, if the trespasser causes grievous hurt to any",
"person or attempts to cause death or grievous hurt, the provisions of this section will",
be attracted. It cannot be accepted that it is only in the process of making an entry into,
"a house if the trespasser causes grievous hurt, that this section will be attracted, for,",
the essential ingredient of lurking house-trespass or house- breaking is 'criminal,
trespass' and that offence continues so long as the trespasser remains on the property,
in possession of another.728.,
"726. Subs. by Act 26 of 1955, section 117 and Sch, for ""transportation for life"" (w.e.f. 1 January",
1956).,
"727. Ismail Khan v State, (1886) 8 All 649 ; Hasmatullah Khan v State, 2005 Cr LJ 2266 (Utt)-",
Charge U.S 459 convicted under section 457 since the injuries are simple in nature. Gopal Singh,
"v State of Rajasthan, 2008 Cr LJ 3272 (Raj)-conviction and sentence of the accused under",
"sections 458, 459, 395/397 and 396, IPC, 1860 are maintained.",
"728. Bhanwarlal v Parbati, 1968 Cr LJ 130 . See contra Said Ahmed, (1927) 49 All 864 .",
"Dharampal Singh v State of Rajasthan, 1998 Cr LJ 3372 (Raj) murder in a chowk not owned and",
possessed by the complainant party. The accused also had the right of way through it. He was,
not liable to be convicted under section 459 or 460.,
THE INDIAN PENAL CODE,
CHAPTER XVII OF OFFENCES AGAINST PROPERTY,
Of Theft,
Of Criminal Trespass,
[s 460] All persons jointly concerned in lurking house-trespass or house-,
breaking by night punishable where death or grievous hurt caused by one of,
them.,
"If, at the time of the committing of lurking house-trespass by night or house-breaking",
"by night, any person guilty of such offence shall voluntarily cause or attempt to cause",
"death or grievous hurt to any person, every person jointly concerned in committing",
"such lurking house-trespass by night or house-breaking by night, shall be punished",
"with 729.[imprisonment for life], or with imprisonment of either description for a term",
"which may extend to ten years, and shall also be liable to fine.",
COMMENT—,
"Before holding a person to be guilty of offence under section 460, IPC, 1860, the",
prosecution must prove:—,
(i) that the accused committed lurking house trespass by night; or house breaking by,
night;,
"(ii) that he caused, or attempted to cause, death or grievous hurt;",
(iii) that he did above whilst engaged in committing lurking house trespass by night or,
"house breaking by night. On the aforesaid analysis of section, it is clear that this",
section applies to those persons who have actually committed lurking house trespass,
at night and not to those who may have accompanied their associates but did not,
"commit the offence. Indeed, it applies to actual doers, and not the others.730. This",
section deals with the constructive liability of persons jointly concerned in committing,
'lurking house-trespass' or 'house-breaking by night' in the course of which death or,
grievous hurt to any one is caused. It is immaterial who causes death or grievous hurt.,
Every person jointly concerned in committing such house-trespass or house-breaking,
shall be punished in the manner provided in the section. A person who actually,
commits murder in the course of committing house-breaking will attract the penalty,
under section 302.731. Every person who is jointly concerned in committing the offence,
of lurking house trespass by night or house breaking by night is to be punished with life,
imprisonment where death has been caused or with imprisonment which may extend,
to ten years where grievous hurt has been caused to any person. This joint liability is,
"based upon the principle of constructive liability. Thus, the person who has actually",
committed the death or grievous hurt would be liable to be punished under the relevant,
"provisions, i.e., section 302 or section 326, as the case may be, while committing the",
offence of lurking house trespass by night. It is possible that common intention or,
"object be not the foundation of an offence under section 460 IPC, 1860. Thus, to",
"establish an offence under section 460, it may not be necessary for the prosecution to",
establish common intention or object. Suffice it will be to establish that they acted,
"jointly and committed the offences stated in section 460 IPC, 1860. The principle of",
constructive liability is applicable in distinction to contributory liability. The Supreme,
"Court in the case of Abdul Aziz v State of Rajasthan,732. clearly stated that if a person",
"committing housebreaking by night also actually commits murder, he must attract the",
penalty for the latter offence under section 302 and the Court found it almost,
impossible to hold that he can escape the punishment provided for murder merely,
because the murder was committed by him while he was committing the offence of,
housebreaking and that he can only be dealt with under section 460.733.,
"The words ""at the time of the committing of"" are limited to the time during which the",
"criminal trespass continues which forms an element in house-trespass, which is itself",
"essential to house-breaking, and cannot be extended so as to include any prior or",
"subsequent time.734. If the offender causes grievous hurt while running away, he will",
not be punishable under this section.735.,
[s 460.1] Section 449 and section 460.—,
The element of house-trespass is common in both the sections and section 460 has,
large ambit. In section 449 actual commission of offence punishable with death is not,
"required and if the house trespass is proved in order to commit such offence, the",
"accused persons would be liable for punishment under section 449, whereas in section",
460 if a person guilty of lurking house trespass or housebreaking in night voluntarily,
cause or attempt to cause death or grievous hurt to any person then every person,
jointly concerned in committing such lurking house trespass in night shall be liable for,
punishment.736.,
"729. Subs. by Act 26 of 1955, section 117 and Sch, for ""transportation for life"" (w.e.f. 1 January",
1956).,
"730. Badri Prasad Prajapati v State of Madhya Pradesh, 2005 Cr LJ 1856 (MP).",
"731. Sohan Singh v State, AIR 1964 Punj 156 . Where in a case of house-breaking committed in",
"well-lighted house, the victim identified the accused and the articles stolen from her house in",
"two exercises of identification parades, conviction of the accused was sustained. Kasu Bhai v",
"State of HP, 1992 Cr LJ 3251 (HP). State of MP v Bhagwan Singh, 2002 Cr LJ 3169 (MP), the",
"accused assailants entered into a house during night time, assaulted a man and hanged him",
and also caused death of his daughter. The motive was to avenge the action against them to,
prevent them from opening drainage towards the disputed land. They were held guilty of lurking,
"trespass and murder. Abdul Aziz v State of Rajasthan, (2007) 10 SCC 283 [LNIND 2007 SC 592] ,",
"house-breaking by several persons, death caused by one of them, others also constructively",
"liable, attracted section 302. It would require the accused to be charged with murder also. Mati",
"Ratre v State of Chhattisgarh, 2013 Cr LJ 560 (Chh)-Conviction set aside since testimony of sole",
witness found to be not reliable,
"732. Abdul Aziz v State of Rajasthan, 2007 (10) SCC 28 .",
"733. Haradhan Das v State of West Bengal, (2013) 2 SCC 197 [LNIND 2012 SC 817] ; Dukalu v",
"State of Madhya Pradesh, 2011 CR LJ 1548 (Chh)- the appellants have been held responsible for",
"causing death of the 2 deceased persons with the aid of section 149, IPC, 1860. It is not a case",
in which at the time of committing lurking house trespass by night any one of the appellant,
caused death of the deceased person and liability has to be fastened on the principle of section,
"460. In the facts and circumstances of the case, if all the appellants were held liable for",
"punishment under section 302 with the aid of section 149, IPC, 1860 on the principles of",
"common object of the unlawful assembly, of which they were the members, it was not",
"necessary to punish them separately under section 460, IPC, 1860 and punishment of the",
"appellants under section 460, IPC, 1860, in the facts and circumstances of the case, also",
requires to be set aside.,
"734. Muhammad, (1921) 2 Lah 342. State of Madhya Pradesh v Kalli, 2012 Cr LJ 2399 (MP)-",
"where death was caused while committing theft in the house of deceased, and looted property",
from house of deceased were recovered from possession of accused and identified by,
"witnesses in test identification parade, conviction of accused is held proper.",
"735. Ibid. Mohan Manjhi v State of Bihar, 2000 Cr LJ 4482 (Pat), for an offence under sections",
"460 and 382, the accused was sentenced to undergo 3 years RI. The proceeding had lasted for",
11 years. The accused had been in jail for 6 months. Considering their mental and financial,
"strain, the court reduced their sentence to the period already undergone with a fine of Rs. 1000.",
"736. Dukalu v State of Madhya Pradesh, 2011 CR LJ 1548 (Chh).",
THE INDIAN PENAL CODE,
CHAPTER XVII OF OFFENCES AGAINST PROPERTY,
Of Theft,
Of Criminal Trespass,
[s 461] Dishonestly breaking open receptacle containing property.,
"Whoever dishonestly or with intent to commit mischief, breaks open or unfastens any",
"closed receptacle which contains or which he believes to contain property, shall be",
punished with imprisonment of either description for a term which may extend to two,
"years, or with fine, or with both.",
COMMENT—,
This and the following section provide for the same offence. As soon as the receptacle,
is broken open or unfastened the offence is complete. Where an IT raid could not be,
completed on the same day and the raiding team put the seized jewellery in an almirah,
"and after locking and sealing it, left it in the custody of the accused, the latter was held",
liable of this offence because he cut the almirah to take out some articles.737.,
"737. State of Maharashtra v Narayan Champalal Bajaj, 1990 Cr LJ 2635 : 1990 Tax LR 918 (Bom).",
THE INDIAN PENAL CODE,
CHAPTER XVII OF OFFENCES AGAINST PROPERTY,
Of Theft,
Of Criminal Trespass,
[s 462] Punishment for same offence when committed by person entrusted,
with custody.,
"Whoever, being entrusted with any closed receptacle which contains or which he",
"believes to contain property, without having authority to open the same, dishonestly,",
"or with intent to commit mischief, breaks open or unfastens that receptacle, shall be",
punished with imprisonment of either description for a term which may extend to,
"three years, or with fine, or with both.",
COMMENT—,
"An offence under section 462 of IPC, 1860 is an aggravated form of the offence made",
"punishable under section 461 of IPC, 1860.738.",
"738. Yamunabai w/o Trimbak Lolge v The State of Maharashtra, 1994 (2) Bom CR 73 [LNIND",
1993 AUG 18] .,
THE INDIAN PENAL CODE,
CHAPTER XVIII OF OFFENCES RELATING TO DOCUMENTS AND TO,
PROPERTY MARKS,
[s 463] Forgery.,
1. [Whoever makes any false documents or false electronic record or part of a,
"document or electronic record, with intent to cause damage or injury], to the public or",
"to any person, or to support any claim or title, or to cause any person to part with",
"property, or to enter into any express or implied contract, or with intent to commit",
"fraud or that fraud may be committed, commits forgery.",
COMMENTS.—,
"The definition of 'forgery' in section 463, Indian Penal Code, 1860 (IPC, 1860) is very",
wide. The basic elements of forgery are: (i) the making of a false document or part of it;,
"and (ii) such making should be with such intention as is specified in the section, viz., (a)",
"to cause damage or injury to (i) the public, or (ii) any person, or (b) to support any claim",
"or title, or (c) to cause any person to part with property, or (d) to cause any person to",
"enter into an express or implied contract, or (e) to commit fraud or that fraud may be",
"committed.2. If a document, which is not genuine, is being used as such and a person",
is made to part with money on that basis then not only the offence of cheating as,
defined under section 415 IPC but also the offence of forgery as defined under section,
463 IPC is attracted.3.,
"1. Subs. by The Information Technology Act (Act 21 of 2000), section 91 and First Sch for the",
"words ""Whoever makes any false documents or part of a document with intent to cause",
"damage or injury w.e.f. 17 October 2000. The words ""electronic record"" have been defined in",
section 29A.,
"2. Sushil Suri v CBI, (2011) 5 SCC 708 [LNIND 2011 SC 494] : AIR 2011 SC 1713 [LNIND 2011 SC",
"494] ; State of UP v Ranjit Singh, AIR 1999 SC 1201 : (1999) 2 SCC 617 .",
"3. Nahul Kohli v State, 2010 Cr LJ 4536 (Del).",
THE INDIAN PENAL CODE,
CHAPTER XVIII OF OFFENCES RELATING TO DOCUMENTS AND TO,
PROPERTY MARKS,
[s 464] Making a false document.,
4. [A person is said to make a false document or electronic record—,
First.—Who dishonestly or fraudulently—,
"(a) makes, signs, seals or executes a document or part of a document;",
"(b) makes or, transmits any electronic record or part of any electronic record;",
(c) affixes any 5.[electronic signature] on any electronic record;,
(d) makes any mark denoting the execution of a document or the authenticity of the,
"6.[electronic signature],",
with the intention of causing it to be believed that such document or part of,
"document, electronic record or 7.[electronic signature] was made, signed,",
"sealed executed, transmitted or affixed by or by the authority of a person by",
"whom or by whose authority he knows that it was not made, signed, sealed,",
executed or affixed; or,
"Secondly.—Who, without lawful authority, dishonestly or fraudulently, by cancellation",
"or otherwise, alters a document an electronic record in any material part thereof, after",
"it has been made, executed or affixed with 8.[electronic signature] either by himself or",
"by any other person, whether such person be living or dead at the time of such",
alteration; or,
"Thirdly.—Who dishonestly or fraudulently causes any person to sign, seal, execute or",
alter a document or an electronic record or to affix his 9.[electronic signature] or any,
electronic record knowing that such person by reason of unsoundness of mind or,
"intoxication cannot, or that by reason of deception practised upon him, he does not",
know the contents of the document or electronic record or the nature of the,
alteration.],
ILLUSTRATIONS,
"(a) A has a letter of credit upon B for rupees 10,000 written by Z. A, in order to",
"defraud B, adds a cipher to the 10,000, and makes the sum 1,00,000, intending",
that it may be believed by B that Z so wrote the letter. A has committed forgery.,
"(b) A, without Z's authority, affixes Z's seal to a document purporting to be a",
"conveyance of an estate from Z to A, with the intention of selling the estate to B",
and thereby of obtaining from B the purchase-money. A has committed forgery.,
"(c) A picks up a cheque on a banker signed by B, payable to bearer, but without any",
sum having been inserted in the cheque. A fraudulently fills up the cheque by,
inserting the sum of ten thousand rupees. A commits forgery.,
"(d) A leaves with B, his agent, a cheque on a banker, signed by A, without inserting",
the sum payable and authorizes B to fill up the cheque by inserting a sum not,
exceeding ten thousand rupees for the purpose of making certain payment. B,
fraudulently fills up the cheque by inserting the sum of twenty thousand rupees.,
B commits forgery.,
"(e) A draws a bill of exchange on himself in the name of B without B's authority,",
intending to discount it as a genuine bill with a banker and intending to take up,
"the bill on its maturity. Here, as A draws the bill with intent to deceive the banker",
"by leading him to suppose that he had the security of B, and thereby to discount",
"the bill, A is guilty of forgery.",
"(f) Z's will contains these words—""I direct that all my remaining property be equally",
"divided between A, B and C"". A dishonestly scratches out B's name, intending",
that it may be believed that the whole was left to himself and C. A has,
committed forgery.,
(g) A endorses a Government promissory note and makes it payable to Z or his,
"order by writing on the bill the words ""Pay to Z or his order"" and signing the",
"endorsement. B dishonestly erases the words ""Pay to Z or his order"" and thereby",
converts the special endorsement into a blank endorsement. B commits forgery.,
"(h) A sells and conveys an estate to Z. A afterwards, in order to defraud Z of his",
"estate, executes a conveyance of the same estate to B, dated six months earlier",
"than the date of the conveyance to Z, intending it to be believed that he had",
conveyed the estate to B before he conveyed it to Z. A has committed forgery.,
(i) Z dictates his will to A. A intentionally writes down a different legatee from the,
"legatee named by Z, and by representing to Z that he has prepared the will",
"according to his instructions, induces Z to sign the will. A has committed forgery.",
"(j) A writes a letter and signs it with B's name without B's authority, certifying that A",
is a man of good character and in distressed circumstances from unforeseen,
"misfortune, intending by means of such letter to obtain alms from Z and other",
"persons. Here, as A made a false document in order to induce Z to part with",
property. A has committed forgery.,
(k) A without B's authority writes a letter and signs it in B's name certifying to A's,
"character, intending thereby to obtain employment under Z. A has committed",
"forgery in as much as he intended to deceive Z by the forged certificate, and",
thereby to induce Z to enter into an express or implied contract for service.,
Explanation 1.—A man's signature of his own name may amount to forgery.,
ILLUSTRATIONS,
"(a) A signs his own name to a bill of exchange, intending that it may be believed",
that the bill was drawn by another person of the same name. A has committed,
forgery.,
"(b) A writes the word ""accepted"" on a piece of paper and signs it with Z's name, in",
order that B may afterwards write on the paper a bill of exchange drawn by B,
"upon Z, and negotiate the bill as though it had been accepted by Z. A is guilty of",
"forgery; and if B, knowing the fact, draws the bill upon the paper pursuant to A's",
"intention, B is also guilty of forgery.",
(c) A picks up a bill of exchange payable to the order of a different person of the,
"same name. A endorses the bill in his own name, intending to cause it to be",
believed that it was endorsed by the person whose order it was payable; here A,
has committed forgery.,
"(d) A purchases an estate sold under execution of a decree against B. B, after the",
"seizure of the estate, in collusion with Z, executes a lease of the estate of Z at a",
"nominal rent and for a long period, and dates the lease six months prior to the",
"seizure, with intent to defraud A, and to cause it to be believed that the lease",
"was granted before the seizure. B, though he executes the lease in his own",
"name, commits forgery by antedating it.",
"(e) A, a trader, in anticipation of insolvency, lodges effects with B for A's benefit, and",
with intent to defraud his creditors; and in order to give a colour to the,
"transaction, writes a promissory note binding himself to pay to B a sum for value",
"received, and antedates the note, intending that it may be believed to have been",
made before. A was on the point of insolvency. A has committed forgery under,
the first head of the definition.,
"Explanation 2.—The making of a false document in the name of a fictitious person,",
"intending it to be believed that the document was made by a real person, or in the",
"name of a deceased person, intending it to be believed that the document was made",
"by the person in his lifetime, may amount to forgery.",
"10.[Explanation 3.—For the purposes of this section, the expression ""affixing 11.",
"[electronic signature]"" shall have the meaning assigned to it in clause (d) of",
"subsection (1) of section 2 of the Information Technology Act, 2000].",
ILLUSTRATION,
"A draws a bill of exchange upon a fictitious person, and fraudulently accepts the bill in",
the name of such fictitious person with intent to negotiate it. A commits forgery.,
COMMENTS.—,
"An analysis of section 464 of IPC, 1860 shows that it divides false documents into",
three categories:,
A. The first is where a person dishonestly or fraudulently makes or executes a,
document with the intention of causing it to be believed that such document was made,
"or executed by some other person, or by the authority of some other person, by whom",
or by whose authority he knows it was not made or executed.,
"B. The second is where a person dishonestly or fraudulently, by cancellation or",
"otherwise, alters a document in any material part, without lawful authority, after it has",
been made or executed by either himself or any other person.,
"C. The third is where a person dishonestly or fraudulently causes any person to sign,",
execute or alter a document knowing that such person could not by reason of (a),
"unsoundness of mind, or (b) intoxication, or (c) deception practised upon him, know the",
"contents of the document or the nature of the alteration. In short, a person is said to",
"have made a 'false document', if (i) he made or executed a document claiming to be",
"someone else or authorised by someone else, or (ii) he altered or tampered a",
"document, or (iii) he obtained a document by practicing deception, or from a person not",
"in control of his senses.12. Making of any false document, in view of the definition of",
'forgery' is the sine qua non therefor. What would amount to making of a false,
"document is specified in section 464 thereof. What is, therefore, necessary is to",
execute a document with the intention of causing it to be believed that such document,
inter alia was made by the authority of a person by whom or by whose authority he,
"knows that it was not made.13. In the case of Mir Nagvi Askari v CBI, the Court held that:",
A person is said to make a false document or record if he satisfies one of the three,
conditions as noticed hereinbefore and provided for under the said section. The first,
condition being that the document has been falsified with the intention of causing it to be,
"believed that such document has been made by a person, by whom the person falsifying the",
document knows that it was not made. Clearly the documents in question in the present,
"case, even if it be assumed to have been made dishonestly or fraudulently, had not been",
made with the intention of causing it to be believed that they were made by or under the,
authority of some one else. The second criteria of the section deals with a case where a,
person without lawful authority alters a document after it has been made. There has been,
no allegation of alteration of the voucher in question after they have been made. Therefore,
in our opinion the second criteria of the said section is also not applicable to the present,
"case. The third and final condition of Section 464 deals with a document, signed by a",
person who due to his mental capacity does not know the contents of the documents which,
were made i.e because of intoxication or unsoundness of mind etc. Such is also not the,
case before us. Indisputably therefore the accused before us could not have been convicted,
with the making of a false document.14.,
To attract the second clause of section 464 there has to be alteration of document,
dishonestly and fraudulently. So in order to attract the clause 'secondly' if the document,
is to be altered it has to be for some gain or with such objective on the part of the,
accused. Merely changing a document does not make it a false document.15.,
[s 464.1] Making of false document.—,
False document is said to have been made when a person dishonestly or fraudulently,
makes a document with the intention of causing it to be believed that such document,
was made by some other person.16.,
[s 464.2] Issuance of a caste certificate.—,
The Sub-Divisional Officer (SDO) issued a caste certificate. The application for the,
"same was supported by affidavit of the father of the applicant. Later, the High Power",
"Scrutiny Committee cancelled the certificate. A complaint was filed alleging forgery,",
"cheating, conspiracy, etc. The High Court held that no offence of forgery was",
"constituted as neither signature nor seals, etc., of Sub-Divisional Officer were forged",
"but the caste certificate was issued by the SDO, himself and therefore it was not a false",
"document in the eyes of law according to the provisions of section 464 of IPC, 1860.17.",
"4. Subs. by The Information Technology Act (Act 21 of 2000), section 91 and First Schedule,",
"w.e.f. 17 October 2000. The words ""electronic record"" have been defined in section 29A.",
"5. Subs. for the words ""digital signature"" by the Information Technology (Amendment) Act,",
"2008 (10 of 2009), section 51 (w.e.f. 27 October 2009).",
"6. Subs. for the words ""digital signature"" by the Information Technology (Amendment) Act,",
"2008 (10 of 2009), section 51 (w.e.f. 27 October 2009).",
7. Ibid.,
8. Ibid.,
9. Ibid.,
"10. Ins. by The Information Technology Act (Act 21 of 2000), section 91 and First Sch, w.e.f. 17",
October 2000.,
"11. Subs. for the words ""digital signature"" by the Information Technology (Amendment) Act,",
"2008 (10 of 2009), section 51 (w.e.f. 27 October 2009).",
"12. Mohammed Ibrahim v State of Bihar, (2009) 8 SCC 751 [LNIND 2009 SC 1774] : 2010 Cr LJ",
"2223 : AIR 2010 SC (Supp) 347; Malay Chatterjil v State of Bihar, 2012 Cr LJ 2240 (Pat).",
"13. Devendra v State of UP, 2009 (7) SCC 495 : 2009 (7) Scale 613 [LNIND 2009 SC 1158] .",
"14. Mir Nagvi Askari v CBI, AIR 2010 SC 528 [LNIND 2009 SC 1651] : (2009) 15 SCC 643 [LNIND",
2009 SC 1651] .,
"15. Parminder Kaurl v State of UP, (2010) 1 SCC 322 [LNIND 2009 SC 1924] : AIR 2010 SC 840",
[LNIND 2009 SC 1924] .,
"16. Raj Shekhar Agrawal v State of WB, 2016 Cr LJ 993 (Cal) : (2015) 4 CALLT 615 (HC).",
"17. Harvir Singh v State of MP, 2016 Cr LJ 3608 (MP) : 2016 (2) JLJ 422 .",
THE INDIAN PENAL CODE,
CHAPTER XVIII OF OFFENCES RELATING TO DOCUMENTS AND TO,
PROPERTY MARKS,
[s 465] Punishment for forgery.,
Whoever commits forgery shall be punished with imprisonment of either description,
"for a term which may extend to two years, or with fine, or with both.",
COMMENT.—,
The offence of forgery is defined in sections 463 and 464 of the Code. Under section,
463 the making of a false document with any of the intents therein mentioned is,
"forgery, and section 464 sets forth when a person is said to make a 'false document'",
within the meaning of the Code.,
The definition of forgery in the Code is not as simple and clear as the definition of,
forgery in common law. Forgery in common law is defined as the fraudulent making or,
alteration of a writing to the prejudice of another man's right.,
[s 465.1] Ingredients.—,
The elements of forgery are—,
1. The making of a false document or part of it.,
2. Such making should be with the intent,
"(a) to cause damage or injury to (i) public, or (ii) any person; or",
(b) to support any claim or title; or,
(c) to cause any person to part with property; or,
(d) to cause any person to enter into express or implied contract; or,
(e) to commit fraud or that fraud may be committed.,
1. 'Makes any false document'.— A school inspector prepared under his own signature,
false pay bills containing false claims for salaries of teachers who had not worked,
"within his jurisdiction, some of whom being purely fictitious, and encashed them from",
the treasury. He was held to be guilty of making a false document but not of forgery,
"because he had not made the signature or writing of another, nor had altered the pay",
bills.18.,
"The antedating of a document is not forgery, unless it has or could have operated to the",
prejudice of some one.19. Incorporation or inclusion of a false statement in a document,
"would not ipso facto make the document false. For a document to be false, it has to tell",
a lie about itself.20.,
[s 465.2] Publication of book.—,
"There was allegation that the accused person, in order to induce the public to purchase",
"the book, falsely represented that the book was by a certain person. There was no",
allegation that the accused himself had written the book and represented it to be that,
"of some other person. The Court said such allegations, even if true, do not make out a",
case of forgery. The offence of cheating could not also be said to have been made out,
because it was a consequential offence.21.,
"Where the allegation was that the accused, who was working as a stenographer in the",
"High Court, had fabricated a forged bail order and the evidence showed that the bail",
"order in question was in fact written by the accused, the finding of the High Court that",
the paper could not be said to be a document in the absence of signature of the,
accused was held to be not tenable. The document could have been used for causing,
"wrongful loss or obtaining wrongful gain. Hence, the offence under sections 466 and",
468 was made out.22.,
2. 'To cause damage or injury to the public or to any person'.—The damage or injury,
must be intended to be caused by the false document to the public or any individual.23.,
"Thus, a police-officer who alters his diary so as to show that he had not kept certain",
"persons under surveillance does not commit forgery, inasmuch as there is no risk of",
loss or injury to any individual and the element of fraud as defined in section 25 is,
absent.24. It is the intent to cause damage or injury which constitutes the gist of this,
"offence. It is immaterial whether damage, injury or fraud is actually caused or not.25.",
Mere making of a false document would not constitute defrauding unless injury or,
intent to cause injury to the person deceived was also proved.26.,
To tamper with a proceeding in a Court of Justice in order to obtain from the Court a,
"decision or order, which it otherwise would not make, is as much a public mischief as",
to attempt to secure the unauthorised release of a prisoner from jail or to obtain for an,
unqualified person credentials entitling him to practise as a surgeon or to navigate a,
ship.27.,
"3. 'Support any claim or title'.—Even if a man has a legal claim or title to property, he",
will be guilty of forgery if he counterfeits documents in order to support it. See,
"illustrations (f), (g), (h) and (i). An actual intention to convert an illegal or doubtful claim",
into an apparently legal one is dishonesty and will amount to forgery.28.,
The term 'claim' is not limited in its application to a claim to property. It may be a claim,
"to anything, as for instance, a claim to a woman as the claimant's wife, a claim to the",
"custody of a child as being the claimant's child, or a claim to be admitted to attendance",
"at a law class in a college, or to be admitted to a university or other examination, or a",
claim to the possession of immovable or any other kind of property.29.,
4. 'To cause any person to part with property'.—It is not necessary that the property,
with which it is intended that false document shall cause a person to part should be in,
"existence at the time when the false document was made. For example, if A gave an",
"order to B to buy the material for making and to make a silver tea service for him, and",
"C, before the tea service was made or the materials for making it had been bought",
"were to make a false letter purporting, but falsely, to be signed by A, authorizing B to",
"deliver to D the tea service when made, C would have committed forgery within the",
meaning of section 463 by making that false document with intent to cause B to part,
"with property, namely, the tea service, when made.30. A written certificate has been",
held to be 'property' within the meaning of this section.31.,
"5. 'Intent to commit fraud'.—The Supreme Court had held that the expression ""defraud""",
"involves two elements, namely, deceit and injury to the person deceived. Injury is",
"something other than economic loss that is deprivation of property, whether movable",
"or immovable, or of money, and it will include any harm whatever caused to any person",
"in body, mind, reputation or such others. In short, it is a non-economic or non-pecuniary",
loss. A benefit or advantage to the deceiver will almost always cause loss or detriment,
to the deceived. Even in those rare cases where there is a benefit or advantage to the,
"deceiver, but no corresponding loss to the deceived the second condition is",
satisfied.32.,
6. 'Fraudulently'.—This word is used in sections 471 and 464 together with the word,
"'dishonestly' and presumably in a sense not covered by the latter word. If, however, it be",
"held that 'fraudulently' implies deprivation, either actual or intended, then apparently",
that word would perform no function which would not have been fully discharged by,
the word 'dishonestly' and its use would be mere surplusage. So far as such a,
"consideration carries any weight, it obviously inclines in favour of the view that the",
word 'fraudulently' should not be confined to transactions of which deprivation of,
property forms a part.33.,
"7. 'Makes'.—""The 'making of a document, or part of a document, does not mean",
"'writing' or 'printing' it, but signing or otherwise executing it; as in legal phrase we speak",
"of 'making an indenture' or 'making a promissory note', by which is not meant the",
"writing out of the form of the instrument, but the sealing or signing it as a deed or note.",
The fact that the word 'makes' is used in the section in conjunction with the words,
"'signs', 'seals' or 'executes', or 'makes any mark denoting the execution', etc., seems to",
very clearly to denote that this is its true meaning. What constitutes a false document,
or part of a document is not the writing of any number of words which in themselves,
"are innocent, but affixing the seal or signature of some person to the document, or part",
"of a document, knowing that the seal or signature is not his, and that he gave no",
"authority to affix it. In other words, the falsity consists in the document, or part of a",
"document, being signed or sealed with the name or seal of a person who did not in fact",
"sign or seal it"".34.",
[s 465.3] Fabricating letter or certificate.—,
"In a case, the allegation was that the accused made false document for getting sim",
cards of mobile phones. Handwriting expert deposed that he was not in a position to,
give any finding on basis of specimen signature of appellant. It was held that since,
finding recorded by Special Judge was contrary to evidence given by handwriting,
"expert, conviction of appellant for offence punishable under section 465 read with",
"section 471 of IPC, 1860, could not be sustained.35. Where accused was alleged to",
"have obtained employment on strength of forged document, finding that accused had",
"not been proved to have forged the documents, it was held that offence under section",
465 is not made out.36.,
[s 465.4] Creation of a website by the company—,
Where the appellant created a website with the name Devi Consultancy Services for the,
"development of the existing company named Devi Polymers Private Limited, in the",
absence of any possibility to impute any intent to cause damage or injury or to enter,
into any express or implied contract or any intent to commit fraud in the making of the,
"said website, no offence of forgery is made out, especially when he has not received a",
single rupee or nor has he entered into any contract in his own name on the basis of,
the above website.37.,
[s 465.5] Acting for society after takeover.—,
Where the entire management of a society was taken over by the petitioners and they,
"were looking after its affairs by writing letters, drawing cheques and operating bank",
accounts by signing their names on behalf of the society and not on anybody else's,
"names or behalf, the offence of forgery/making false document was not made out.38.",
[s 465.6] Alteration of document.—,
The mere alteration of a document does not make it a forged document. The alteration,
must be for some gain or for some objective. The Court said that presuming that figure,
"""1"" was added to the date mentioned on the document, it could not be said that the",
"document became false. The accused had nothing to gain from it, nor it affected the",
period of limitation.39.,
[s 465.7] Clause second.—Alteration on or cancellation of document [Section,
464].—,
This clause requires dishonest or fraudulent cancellation or alteration of a document in,
any material part without lawful authority after it has been made or executed by a,
person who may be living or dead.,
The conduct of an Advocate's clerk in forging the signature of another Advocate on a,
surety bond and in altering certain endorsements for the purposes of identification and,
"attestation, was held by the Supreme Court as amounting to an offence under this",
section and not under section 468.40.,
[s 465.8] Sentence.—,
Accused employed as a sanitation supervisor was found to have committed offence of,
making fake trade licences and issuing them to various persons. Court below convicted,
"him for one year under section 471 read with section 465 IPC, 1860, and two years'",
"simple imprisonment (SI) under section 468, IPC imposed upon him. Considering the",
fact that he was a first offender and an orphan and sole bread earner of his family,
"which consisted of a minor child and an unemployed wife, the sentence under section",
"471 read with section 465 IPC, 1860 was reduced to one month and the sentence",
"under section 468 IPC, 1860 was reduced to two months.41.",
"18. Shankerlal Vishwakarma v State of MP, 1991 Cr LJ 2808 (MP).",
"19. Gobind Singh, (1926) 5 Pat 573.",
"20. AK Khosla v TS Venkatesan, 1994 Cr LJ 1448 (Cal); Lee Cheung Wing v R, 1992 Cr App R 355",
"(PC), falsification of a withdrawal slip to enable the withdrawal of money, offence; Premlata v",
"State of Rajasthan, 1998 Cr LJ 1430 (Raj); Manilal v State of Kerala, 1998 Cr LJ 785 (Ker). See",
"also Joginder Lal v State (Delhi Admn.), 1998 Cr LJ 3175 (Del); Mohandas v State of TN, 1998 Cr",
"LJ 3409 (Mad); Bharat Hiralal v Jaysiri Amarsinh, 1997 Cr LJ 2509 (Bom), forgery of a document",
is possible even if the accused himself is the author and signatory of the document. A case of a,
"false bill, magistrate justified in taking cognizance.",
"21. Guru Bipin Singh v Chongtham Manihar Singh, AIR 1997 SC 1448 [LNIND 1996 SC 1690] :",
1997 Cr LJ 724 .,
"22. State of UP v Ranjit Singh, AIR 1999 SC 1201 : 1999 Cr LJ 1830 .",
"23. RR Diwakar v B Guttal, 1975 Cr LJ 90 (Kant).",
"24. Sanjiv Ratnappa, (1932) 34 Bom LR 1090 : 56 Bom 488.",
"25. Kalyanmal, (1937) Nag 45.",
"26. Sadanand, 1977 Cr LJ NOC 103 (Goa); Tul Mohon Ram, 1981 Cr LJ NOC 223 (Del); see also",
"Harnam Singh, 1976 Cr LJ 913 (SC), as in 'Comments' under section 477A infra. TN Rugmani v C.",
"Achutha Menon, AIR 1991 SC 983 [LNIND 1990 SC 803] , application for permission for",
"construction made in another's name, but without any intention of causing harm, no offence",
under the section.,
"27. Mahesh Chandra Prasad v State, (1943) 22 Pat 292.",
28. Ibid.,
"29. Soshi Bhushan, (1893) 15 All 210 , 217.",
"30. Soshi Bhushan, (1893) 15 All 210 , 217, 218.",
"31. Ibid, p 218.",
"32. Dr. Vimla, (1963) 2 Cr LJ 434 .",
"33. Abbas Ali, (1896) 25 Cal 512 , 521, FB overruling Haradhan, (1892) 19 Cal 380 .",
"34. Per Garth CJ in Riasat Ali, (1881) 7 Cal 352 , 355.",
"35. Nazeem Ahmed Wahid Ahmed Khanl v State of Maharashtra, 2011 Cr LJ 1786 (Bom).",
"36. Rupa Bania v State of Assam, 2006 Cr LJ 3455 (Gau).",
"37. Ramesh Rajagopal v Devi Polymers Pvt Ltd, AIR 2016 SC 1920 [LNIND 2016 SC 170] :",
2016(4) Scale 198 [LNIND 2016 SC 170] .,
"38. PN Parthasarthy v GK Srinivasa Rao, 1995 Cr LJ 3406 (Kant).",
"39. Parminder Kaur v State of UP, 2010 Cr LJ 895 : AIR 2010 SC 840 [LNIND 2009 SC 1924] :",
(2010) 1 SCC 322 [LNIND 2009 SC 1924] .,
"40. Sharvan Kumar v State of UP, AIR 1985 SC 1663 [LNIND 1985 SC 231] : (1985) 3 SCC 658",
"[LNIND 1985 SC 231] , reducing the sentence to nine months, already undergone.",
"41. Tashi Dadul Bhutia v State of Sikkim, 2011 Cr LJ 1315 (Sik).",
THE INDIAN PENAL CODE,
CHAPTER XVIII OF OFFENCES RELATING TO DOCUMENTS AND TO,
PROPERTY MARKS,
"[s 466] Forgery of record of Court or of public register, etc.",
"42. [Whoever forges a document or an electronic record], purporting to be a record or",
"proceeding of or in a Court of Justice, or a register of birth, baptism, marriage or",
"burial, or a register kept by a public servant as such, or a certificate or document",
"purporting to be made by a public servant in his official capacity, or an authority to",
"institute or defend a suit, or to take any proceedings therein, or to confess judgment,",
"or a power of attorney, shall be punished with imprisonment of either description for a",
"term which may extend to seven years, and shall also be liable to fine.",
"43.[Explanation.—For the purposes of this section, ""register"" includes any list, data or",
record of any entries maintained in the electronic form as defined in clause (r) of sub-,
"section (1) of section 2 of the Information Technology Act, 2000].",
COMMENT.—,
Forging a document and using the forged document are quite different and distinct,
offence. The reliance on the false documents will not ipso facto implicate the person,
"who relied upon, under sections 465 and 466.44. If by virtue of preparing a false",
document purporting it to be a document of a Court of Justice and by virtue of such,
"document, a person who is not entitled to be released on bail could be released then,",
"undoubtedly damage or injury has been caused to the public at large and, therefore,",
there is no reason why under such circumstances the accused who is the author of,
such forged document cannot be said to have committed offence under section 466 of,
"IPC, 1860. A person is said to do a thing fraudulently if he does that thing with intent to",
"defraud but not otherwise. The expression 'defraud' involves two elements, namely",
deceit and injury to the person deceived. Injury is something other than economic loss,
"and it will include any harm whatever caused to any person in body, mind, reputation or",
such others. A benefit or advantage to the deceiver will almost always cause loss or,
detriment to the deceived. The preparation of a forged bail order by the utilisation of,
which the person concerned obtained an advantage of being released deceiving the,
courts and the society at large cannot but be said to have made the document,
"fraudulently, thereby attracting section 466 of IPC, 1860.45.",
"42. Subs. by The Information Technology Act (Act 21 of 2000), section 91 and First Sch for the",
"words ""whoever forges a document', w.e.f. 17 October 2000. The words ""electronic record"" have",
been defined in section 29A.,
"43. Ins. by the Information Technology Act (21 of 2000), section 91 and First Sch, (w.e.f. 17",
October 2000).,
"44. C R Alimchandani v I K Shah, 1999 Cr LJ 2416 (Bom).",
"45. State of UP v Ranjit Singh, AIR 1999 SC 1201 : 1999 (2) SCC 617 .",
THE INDIAN PENAL CODE,
CHAPTER XVIII OF OFFENCES RELATING TO DOCUMENTS AND TO,
PROPERTY MARKS,
"[s 467] Forgery of valuable security, will, etc.",
"Whoever forges a document which purports to be a valuable security or a will, or an",
"authority to adopt a son, or which purports to give authority to any person to make or",
"transfer any valuable security, or to receive the principal, interest or dividends",
"thereon, or to receive or deliver any money, movable property, or valuable security, or",
any document purporting to be an acquittance or receipt acknowledging the payment,
"of money, or an acquittance or receipt for the delivery of any movable property or",
"valuable security, shall be punished with 46.[imprisonment for life], or with",
"imprisonment of either description for a term which may extend to ten years, and",
shall also be liable to fine.,
COMMENT.—,
The offence under this section is an aggravated form of the offence described in the,
preceding section. The forged document must be one of those mentioned in the,
section. A complaint by the court is necessary for cognizance of the offence.47.,
"Section 467, IPC, 1860, does not require the prosecution to prove that the accused who",
"commits forgery, has benefitted thereby or any loss has occasioned to anyone",
thereby.48. There is a fundamental difference between a person executing a sale deed,
"claiming that the property conveyed is his property, and a person executing a sale deed",
by impersonating the owner or falsely claiming to be authorised or empowered by the,
"owner, to execute the deed on owner's behalf. When a person executes a document",
"conveying a property describing it as his, there are two possibilities. The first is that he",
has a bona fide belief that the property actually belongs to him. The second is that he,
may be dishonestly or fraudulently claiming it to be his even though he knows that it is,
"not his property. But to fall under first category of ""false documents"", it is not sufficient",
that a document has been made or executed dishonestly or fraudulently. There is a,
further requirement that it should have been made with the intention of causing it to be,
"believed that such document was made or executed by, or by the authority of a person,",
by whom or by whose authority he knows that it was not made or executed. When a,
"document is executed by a person claiming a property which is not his, he is not",
claiming that he is someone else nor is he claiming that he is authorised by someone,
"else. Therefore, execution of such document (purporting to convey some property of",
which he is not the owner) is not execution of a false document as defined under,
"section 464 of the Code. If what is executed is not a false document, there is no",
"forgery. If there is no forgery, then neither section 467 nor section 471 of the Code is",
attracted.49.,
[s 467.1] Quashing of complaint.—,
There were bold allegations in the complaint that the shares of the complainant had,
been transferred on forged signatures. There was nothing to show how all or any of the,
"accused persons were involved. No offence was constituted under sections 406, 420,",
"467, 468 and 120-B. The order taking cognizance was held to be improper. It was",
quashed in respect of accused persons who preferred special leave petition and also in,
respect of those who did not file a petition.50.,
[s 467.2] CASES.—,
"Where the allegation was that a company, acting through its directors in concert with",
the chartered accountants and some other persons: (i) conceived a criminal conspiracy,
"and executed it by forging and fabricating a number of documents, like photographs of",
"old machines, purchase orders and invoices showing purchase of machinery in order to",
support their claim to avail hire-purchase loan from Bank; (ii) on the strength of these,
"false documents, bank parted with the money by issuing pay orders and demand drafts",
in favour of the Company; and (iii) the accused opened six fictitious accounts in the,
banks to encash the pay orders/bank drafts issued by Bank in favour of the suppliers of,
"machines, thereby directly rotating back the loan amount to the borrower from these",
"fictitious accounts, and in the process committed a systematic fraud on the Bank and",
obtained pecuniary advantage for themselves. Precise details of all the fictitious,
accounts as also the further flow of money realized on encashment of demand,
"drafts/pay orders have been incorporated in the charge sheet additionally, by allegedly",
"claiming depreciation on the new machinery, which was never purchased, on the basis",
"of forged invoices, etc.; the accused cheated the public exchequer as well. The",
Supreme Court held that proceedings are not liable to be quashed merely because,
dues of bank have been paid up.51.,
A deed of agreement for purchase of shares is not a valuable security.52. A person who,
received money from a postman under a false representation that he was the payee,
"when in fact he was not, and signed the postal acknowledgement in the name of the",
"payee, was held to have committed an offence under this section.53. Where the",
"accused fraudulently brought into existence a registered sale deed, said to have been",
"executed by the widow of a person, intending to deceive and also to injure the",
"reversioners of that person, it was held that they were guilty under this section.54.",
Where the accused falsely identified a person before the Oaths Commissioner as the,
deponent and the said person affixed his thumb impression on the document and it,
was also apparent that the document could not even become an affidavit without,
"identification of the deponent by the accused, it was held that the accused abettor",
having been present at the time of the commission of the offence of impersonation he,
"was guilty under section 467 read with section 114, IPC, 1860.55. A bank draft is a",
security for the purposes of this section and the bank manager signing a forged draft is,
guilty of this offence.56. Making out cheques for withdrawing money for official,
purposes and obtaining the signature of the signing officer under that pretence was,
held to be punishable offence under this section.57.,
"[s 467.3] Bar under section 195(1)(b)(ii) of the Code of Criminal Procedure,",
"1973 (Cr PC, 1973).—",
"Section 195(1)(b)(ii), Cr PC mandates that no court shall take cognizance of any",
"offence described in section 463, or punishable under sections 471, 475 or 476, of IPC,",
"1860, when such offence is alleged to have been committed in respect of a document",
"produced or given in evidence in a proceeding in any court, except on the complaint in",
"writing of that court, or of some other court to which that court is subordinate. It",
contemplates a situation where offences enumerated therein are committed with,
respect to a document subsequent to its production or giving in evidence in a,
proceeding in any court.58. The petitioner stood before the Court as surety in favour of,
"the accused person and filed the affidavit, bail declaration form and title document of",
the Land record-of-rights book before the Court. It was further revealed that the,
petitioner filed the false declaration as well as false affidavit in support of the said,
"declaration. It was further found that both the documents, i.e., the declaration form as",
well the affidavit of accused were prepared just before production of them in the Court.,
"Admittedly, the offence was committed before the documents were filed in the Court.",
Section 195(1)(b)(ii) of Cr PC would be attracted only when the offences enumerated in,
the said provision have been committed with respect to a document after it had been,
"produced or given in evidence in a proceeding in any court, i.e., during the time when",
"the document was in custodia legis. This being the settled position of law, there",
appears to be no justification in quashing the prosecution of the petitioner-accused on,
the ground that provisions of section 195(1)(b)(ii) are applicable.59.,
"46. Subs. by Act 26 of 1955, section 117 and Sch, for ""transportation for life"" (w.e.f. 1 January",
1956).,
"47. See Sardul Singh v State of Haryana, 1992 Cr LJ 354 (P&H).",
"48. Suresh Hingorani v State of Haryana, 2013 (1) Scale 225 [LNIND 2013 SC 21] : JT 2013 (8)",
SC 66 [LNIND 2013 SC 21] .,
"49. Shiv Charan v State of Rajasthan, 2012 Cr LJ 211 (Raj).",
"50. Ashok Chaturvedi v Shitual H Chanchani, 1998 Cr LJ 4091 : AIR 1998 SC 2796 [LNIND 1998",
SC 751] .,
"51. Sushil Suri v CBI, (2011) 5 SCC 708 [LNIND 2011 SC 494] : AIR 2011 SC 1713 [LNIND 2011",
SC 494] .,
"52. AK Khosla v TS Venkatesan, 1992 Cr LJ 1448 (Cal).",
"53. Jogidas v State, (1921) 24 Bom LR 99 ; Sanjay Gaikwad v State of Maharashtra, 2013 Cr LJ",
(NOC) 304 —using genuine special adhesive stamps fraudulently obtained for making false,
document— offence is under section 468 not under section 256–259 IPC.,
"54. Ganga Dibya, (1942) 22 Pat 95.",
"55. Calcutta Singh, 1978 Cr LJ 477 (P&H).",
"56. Adithela Immanuel Raju v State of Orissa, 1992 Cr LJ 243 ; State of Haryana v Parmanand,",
"(1995) 1 Cr LJ 396 , embezzlement by forging entries in records, but neither signature nor",
"handwriting proved by expert evidence, conviction on the statement of a sole witness not",
justified.,
"57. State of Punjab v Baj Singh, (1995) 2 Cr LJ 1311 (P&H); Joginder Pal Dhiman v UOI, 2002 Cr",
"LJ 677 (HP), bank manager defrauded bank by forging amounts on FDRs and issuing drafts in",
his own and wife's name. But on being detected he returned the whole amount involved.,
Sentence reduced to one year and amount of fine maintained.,
"58. Iqbal Singh Marwah v Meenakshi Marwah, (2005) 4 SCC 370 [LNIND 2005 SC 261] ; Mahesh",
"Chand Sharma v State of UP, AIR 2010 SC 812 [LNIND 2009 SC 1740] : (2009) 15 SCC 519",
"[LNIND 2009 SC 1740] ; CP Subhash v Inspector of Police Chennai, 2013 Cr LJ 3684 : JT 2013 (2)",
"SC 270 [LNIND 2013 SC 74] , sale deed had not been forged while in custody of court, bar under",
section 195 not applicable.,
"59. Jagannath Singh v State of MP, 2011 Cr LJ 3008 (MP).",
THE INDIAN PENAL CODE,
CHAPTER XVIII OF OFFENCES RELATING TO DOCUMENTS AND TO,
PROPERTY MARKS,
[s 468] Forgery for purpose of cheating.,
"Whoever commits forgery, intending that the 60.[document or electronic record",
"forged] shall be used for the purpose of cheating, shall be punished with",
"imprisonment of either description for a term which may extend to seven years, and",
shall also be liable to fine.,
COMMENT.—,
This section does not require that the accused should actually commit the offence of,
cheating. What is material is the intention or purpose of the offender in committing,
forgery.61. Where documents had been forged and fabricated only to be used as,
"genuine to make fraudulent and illegal claim over land owned by complainant, the",
Supreme Court held that it cannot be held that respondents were not makers of,
documents or that filing of civil suit based on same would not constitute an offence.62.,
The Supreme Court has expressed the opinion that the conduct of an Advocate's clerk,
in forging the signature of another advocate on a surety bond and forging some,
"endorsements for identification and attestation, would not constitute an offence under",
this section and that the conviction should have been under section 465.63.,
[s 468.1] Banking and other frauds.—,
"Where the accused, being the BDO, who was authorised to recommend the sanctioning",
of housing loans to the villagers misappropriated the money of the bank by availing,
"loans in their names by forging their signatures, he was held to be guilty based on the",
evidence of the villagers that they did not apply under the scheme.64.,
[s 468.2] Signing differently in vakalatnama.—,
Where it was alleged that in order to cheat the Complainant the accused signed in his,
"vakalathnama differently from his signatures available in his income tax returns, the",
Court quashed the complaint as neither the Complainant has alleged any 'forgery' by,
"the petitioners causing any damage, or injury to the public nor to any person, nor to",
"cause any person to part with property, nor to enter into any express or implied",
"contract, nor with intent to commit fraud to any person or the Complainant in",
particular.65.,
"60. Subs. by The Information Technology Act (Act 21 of 2000) for the words ""document forged"",",
"w.e.f. 17 October 2000. The words ""electronic record"" have been defined in section 29A.",
"61. Shivaji Narayan, (1970) 73 Bom LR 215 . Mallinath Ambanna Shedjale v Purushottam",
"Vasudeo Somshetty, 2002 Cr LJ 506 (Bom), forgery of signature on partnership registration",
"form, the mere fact that the handwriting expert could not positively say who committed the",
"forgery, the accused partners could not be acquitted. Chandu Mahto v State of Bihar, 2000 Cr LJ",
"4472 (Pat), forgery of signature for operating colleague's PF Account. Held, guilty under",
"sections 120-B, 419, 420, 468, 471 and 477-A. Srinivas Rao v State of AP, 2002 Cr LJ 3880 (AP),",
the offence took place about nine years ago. The sentence of six months was reduced to two,
"months. Saroj Kumar Sahoo v State of Orissa, 2003 Cr LJ 1872 , allegation that the officers of the",
State Financial Corporation and accused persons entered into a conspiracy to cheat the owner,
of the unit of disposing it of at a lower value than the market price. The allegation was not,
proved on evidence.,
"62. CP Subhash v Inspector of Police Chennai, 2013 Cr LJ 3684 : JT 2013 (2) SC 270 [LNIND",
"2013 SC 74] ; Siba Prasad Satpathy v Republic of India, 2011 Cr LJ 3656 .",
"63. Sharvan Kumar v State of UP, AIR 1985 SC 1663 [LNIND 1985 SC 231] : (1985) 3 SCC 658",
[LNIND 1985 SC 231] : 1985 SCC (Cr) 437. A complaint by the Court concerned is necessary for,
"cognizance of this offence. See Sardul Singh v State of Haryana, 1992 Cr LJ 354 (P&H) vide",
"section 195, Cr PC, 1973. Surender Singh v State, 2013 Cr LJ 3211 (Del), allegation of using fake",
"number plates, not proved. Mere recovery of fake number plate does not establish guilt of",
"appellant that he intended to cheat police official, accused acquitted.",
"64. Sukh Ram v State of HP, 2016 Cr LJ 4146 (SC) : 2016 (7) Scale 354 .",
"65. Padam Chand v State of Bihar, 2016 Cr LJ 4998 (Pat) : 2016 (3) PLJR 258 .",
THE INDIAN PENAL CODE,
CHAPTER XVIII OF OFFENCES RELATING TO DOCUMENTS AND TO,
PROPERTY MARKS,
[s 469] Forgery for purpose of harming reputation.,
"Whoever commits forgery, 66.[intending that the document or electronic record",
"forged] shall harm the reputation of any party, or knowing that it is likely to be used",
"for that purpose, shall be punished with imprisonment of either description for a term",
"which may extend to three years, and shall also be liable to fine.",
"66. Subs. by The Information Technology Act (Act 21 of 2000), section 91 and First Sch for the",
"words ""intending that the document forged"", w.e.f. 17 October 2000. The words ""electronic",
"record"" have been defined in section 29A.",
THE INDIAN PENAL CODE,
CHAPTER XVIII OF OFFENCES RELATING TO DOCUMENTS AND TO,
PROPERTY MARKS,
[s 470] Forged **[document or electronic record].,
A false 67.[document or electronic record] made wholly or in part by forgery is,
"designated ""a forged 68.[document or electronic record]"".",
COMMENT.—,
A person who forges a document or electronic record for the purpose of harming the,
reputation of another and thereby commits an offence under section 500 (defamation),
commits an offence also under this section.,
"67. Subs. by The Information Technology Act (Act 21 of 2000), section 91 and First Sch for the",
"words ""document"", w.e.f. 17 October 2000. The words ""electronic record"" have been defined in",
section 29A.,
"68. Subs. by Act 21 of 2000, section 91 and Sch I, for ""document"" (w.e.f. 17 October 2000).",
THE INDIAN PENAL CODE,
CHAPTER XVIII OF OFFENCES RELATING TO DOCUMENTS AND TO,
PROPERTY MARKS,
[s 471] Using as genuine a forged ***[document or electronic record].,
Whoever fraudulently or dishonestly uses as genuine 1 any 69. [document or electronic,
record] which he knows or has reason to believe to be a forged 70. [document or,
"electronic record], 2 shall be punished in the same manner as if he had forged such 71.",
[document or electronic record].,
COMMENT.—,
What this section requires is the use as genuine of any document which is known or,
believed to be a forged document; it does not lay down that such use can only occur,
"when the original itself is produced, for the section does not require the production of",
the original.72.,
[s 471.1] Ingredients.—,
There must be—,
1. Fraudulent or dishonest use of a document as genuine.,
2. The person using it must have knowledge or reason to believe that the document,
is a forged one.,
1. 'Uses as genuine'.— Accused registered various documents relating to a project,
without verifying the credentials of the purchaser and seller and without examining that,
the land covered by the sale deeds was in existence or not or the land belongs to the,
State Government. Documents were prima facie found to be forged so as to get the,
benefit of the package which was meant for the project affected persons/oustees,
displaced from the land. Order of High Court quashing the proceedings was held liable,
to be set aside.73.,
[s 471.2] Sections 467 and 471.—,
Where there is forgery of a document purporting to be a valuable security as defined in,
section 471 becomes an offence under section 471 when it is used as genuine. The,
Supreme Court observed that the basic ingredient of both the offences is that there,
"should be ""forgery"" as defined in section 463 and forgery in turn depends upon creation",
"of a ""false document"" as defined in section 464. If there is no ""false document"" as",
"defined in section 464, offences under sections 467 and 471 are not made out. Further",
the mere execution of a sale deed by claiming that property being sold was executant's,
property did not amount to commission of offences under sections 467 and 471 even if,
"title to property did not vest in the executant. This was for the reason that no ""false",
"document"" as defined in section 464, was created.74.",
2. 'Knows or has reason to believe to be a forged document'.—These words are of,
general application.75. Where it was not shown that the accused had knowledge of the,
forged nature of the cheque76. or the lottery ticket77. which he used as genuine he,
"cannot be convicted under sections 467 and 471, IPC, 1860.",
"""Knowledge"" is an awareness on the part of the person concerned indicating his state",
of mind. Reason to believe is another fact of the state of mind. It is not the same thing,
"as ""suspicion"" or ""doubt"". The mere seeing also cannot be equated to believing.",
"""Reason to believe"" is a higher level of the state of mind. Likewise knowledge will be",
slightly on a higher plane than reason to believe. A person can be supposed to know,
when there is a direct appeal to his senses and a person is presumed to have reason to,
"believe if he has sufficient cause to believe the same. In substance, what is meant is",
"that a reason to believe requires that a reasonable man would, by probable reasoning",
"conclude or infer regarding the nature of the thing concerned. ""Knowledge"" and ""reason",
"to believe"" has to be deduced from the various circumstances of the case.78. The",
section is intended to apply to persons other than the forger himself but the forger is,
not excluded from the operation of the section. It is not required that the person forging,
the document must necessarily be convicted along with the person using the,
document.79.,
[s 471.3] Compounding.—,
Where there is no chance of recording a conviction insofar as the accused is,
"concerned and the entire exercise of trial is destined to be an exercise in futility, the",
"High Court by exercising the inherent power under section 482 Cr PC, 1973, even in",
offences which are not compoundable under section 320 may quash the,
prosecution.80.,
[s 471.4] Punishment.—,
"in Bank of India v Yeturi Maredi Shanker Rao,81. the Supreme Court confirmed the",
sentence of nine months of rigorous imprisonment to a person who had knowledge of,
the forged signatures on withdrawal forms and who used them to affect withdrawal of,
"money. A forged will was prepared and executed in favour of the accused, but he could",
"not draw any benefit under it, nor it was acted upon in any civil proceedings. He had",
faced trial for more than 26 years. He was in jail for more than seven months. His,
sentence was accordingly reduced to the period already undergone.82. The accused,
filed a false marks sheet and gained admission. His past record was good. He had,
already lost a job. The sentence of imprisonment was reduced to the period already,
undergone.83.,
[s 471.5] CASE.—,
Accused while working as a lower division clerk in the office of the Deputy,
"Superintendent of Police had temporarily misappropriated an amount of Rs. 1,839 and",
made false entry in the record. Admittedly the sum had been deposited in the post,
office before the due date and that no loss had been caused to the department.,
"Offence alleged under IPC, 1860, against the accused are trivial in nature and have",
"caused no harm and in fact no offences in the eye of law. The benefit of section 95, IPC",
is available to the appellant.84.,
[s 471.6] Certificate.—,
Where the accused applied to the Superintendent of Police for employment in the,
"Police force, and in support of his application presented two certificates which he knew",
"to be false, it was held that he was guilty of offences under sections 463 and 471.85.",
Where the accused used a forged certificate of competency as an engine-room first,
"Tindal, he was held guilty under sections 471 and 463.86. With a view to qualify for",
appearance at the competitive P.C.S examination the accused presented a certified,
"copy of the certificate granted to him by the University at his Matriculation examination,",
"in which the date of birth had been altered from ""5 January 1901"" to ""15 January 1904"".",
It was held that he was guilty of an offence under this section inasmuch as the,
"document presented, being a false document, was used with intent to cause damage",
and injury to the other candidates in the competitive examination for P.C.S. and to,
support his claim to appear.87. Where a forged certificate of age was filed by an,
"employee for the purpose of getting his superannuation postponed by two years, his",
"conviction under sections 471, 420 and 511 was upheld. It was immaterial that the",
employer had not acted upon the certificate.88.,
[s 471.7] Passport.—,
A person who forges a passport and uses it as genuine to get entry into India is guilty,
under section 471and section 467.89. Where unauthorised endorsements were made in,
a passport with a view to helping the person having his photograph on the passport to,
"travel to countries to which he was not entitled to go, such endorsements were made",
"dishonestly and fraudulently and, therefore, the use of such a passport constituted an",
"offence under section 471, IPC, 1860. Where, however, the very basis of the",
prosecution case was that the endorsements were in the handwriting of the accused,
"but the expert opinion was hesitant and unsatisfactory, the conviction of the accused",
could not be sustained.90.,
"Where passport alleged to have issued by using the former seal of the passport officer,",
it is the duty of the investigating officer to find out in whose custody the unused seal,
"was kept and how the accused obtained possession of the same, for using it for",
committing forgery.91.,
[s 471.8] Sanction.—,
The offence of cheating under section 420 or for that matter offences relatable to,
"sections 467, 468, 471 and 120B can by no stretch of imagination, by their very nature,",
be regarded as having been committed by any public servant while acting or purporting,
"to act in discharge of official duty. In such cases, official status only provides an",
opportunity for commission of the offence.92.,
69. Subs. by Ibid.,
70. Subs. by Ibid.,
71. Subs. by Ibid.,
"72. Budhu Ram v State, (1963) 2 Cr LJ 698 (SC).",
"73. State of Madhya Pradesh v Surendra Kori, 2013 Cr LJ 167 (SC); (2012) 10 SCC 155 [LNIND",
2012 SC 681] .,
"74. Mohd Ibrahim v State of Bihar, (2009) 8 SCC 751 [LNIND 2009 SC 1774] : (2009) 3 SCC (Cr)",
929.,
"75. Ranchhoddas, (1896) 22 Bom 317.",
"76. Abdul Karim v State, 1979 Cr LJ 1123 (SC).",
"77. Chatt Ram, 1979 Cr LJ 1411 (SC).",
"78. AS Krishanan v State of Kerala, (2004) 11 SCC 576 [LNIND 2004 SC 349] : AIR 2004 SC 3229",
"[LNIND 2004 SC 349] : 2004 Cr LJ 2833 , forged marksheets were used in this case for securing",
admission to medical college. The candidate (accused) deserved no leniency in the matter of,
punishment.,
79. Ibid.,
"80. Jayrajsinh Digvijaysinh Rana v State of Gujarat, 2012 AIR (SCW) 4092 : 2012 Cr LJ 3900 ;",
"Ashok Sadarangani v UOI, AIR 2012 SC 1563 [LNIND 2012 SC 180] : (2012) 11 SCC 321 [LNIND",
"2012 SC 180] , where emphasis is more on the criminal intent of the petitioners than on the civil",
"aspects involving the dues of the bank in respect of which a compromise was worked out,",
proceedings cannot be quashed.,
"81. Bank of India v Yeturi Maredi Shanker Rao, (1987) 1 SCC 577 [LNIND 1987 SC 104] : AIR 1987",
SC 821 [LNIND 1987 SC 104] : 1987 Cr LJ 722 . Encashing a forged bank draft is an offence,
"under this section. Adithelo Immanuel Raju v State of Orissa, (1992) Cr LJ 243 .",
"82. Jagdish v State of Rajasthan, 2002 Cr LJ 2171 (Raj).",
"83. Tulsibhai Jivabhai Changani v State of Gujarat, 2001 Cr LJ 741 (SC).",
"84. NK Illiyas v State of Kerala, 2012 Cr LJ 2418 : AIR 2012 SC 3790 [LNIND 2011 SC 646] .",
"85. Khandusingh, (1896) 22 Bom 768.",
"86. Abbas Ali, (1896) 25 Cal 512 (FB).",
"87. Chanan Singh, (1928) 10 Lah 545.",
"88. Galla Nageswara Rao v State of AP, 1992 Cr LJ 2601 (AP).",
"89. Daniel, AIR 1968 Mad 349 [LNIND 1967 MAD 140] . Hema v State, 2013 Cr LJ 1011 : AIR",
"2013 SC 1000 [LNIND 2013 SC 1240] , where accused in conspiracy with the owner of a travel",
"agency filed application for passport by giving bogus particulars, court held that she is guilty.",
"90. Mahendra Singh v State, 1972 Cr LJ 34 (SC).",
"91. Vijayachandran KK v The Supdt. of Police, 2008 (2) Ker LJ 751 : 2008 (3) Ker LT 307 .",
"92. Om Dhankar, (2012) 11 SCC 252 [LNINDORD 2012 SC 439] : 2012 (3) Scale 363 [LNINDORD",
"2012 SC 439] ; Prakash Singh Badal v State of Punjab, 2007 (1) SCC 1 [LNIND 2006 SC 1091] :",
"AIR 2007 SC 1274 [LNIND 2006 SC 1091] ; Rakesh Kumar Mishra v State of Bihar, 2006 (1) SCC",
557 [LNIND 2006 SC 8] : AIR 2006 SC 820 [LNIND 2006 SC 8] .,
THE INDIAN PENAL CODE,
CHAPTER XVIII OF OFFENCES RELATING TO DOCUMENTS AND TO,
PROPERTY MARKS,
"[s 472] Making or possessing counterfeit seal, etc., with intent to commit",
"forgery, punishable under section 467.",
"Whoever makes or counterfeits any seal, plate or other instrument for making an",
"impression, intending that the same shall be used for the purpose of committing any",
"forgery which would be punishable under section 467 of this Code, or, with such",
"intent, has in his possession any such seal, plate or other instrument, knowing the",
"same to be counterfeit, shall be punished with 93.[imprisonment for life], or with",
"imprisonment of either description for a term which may extend to seven years, and",
shall also be liable to fine.,
COMMENT.—,
"This section and the section following are akin to sections 235, 255 and 256.",
"93. Subs. by Act 26 of 1955, section 117 and Sch, for ""transportation for life"" (w.e.f. 1 January",
1956).,
THE INDIAN PENAL CODE,
CHAPTER XVIII OF OFFENCES RELATING TO DOCUMENTS AND TO,
PROPERTY MARKS,
"[s 473] Making or possessing counterfeit seal, etc., with intent to commit",
forgery punishable otherwise.,
"Whoever makes or counterfeits any seal, plate or other instrument for making an",
"impression, intending that the same shall be used for the purpose of committing any",
forgery which would be punishable under any section of this Chapter other than,
"section 467, or, with such intent, has in his possession any such seal, plate or other",
"instrument, knowing the same to be counterfeit, shall be punished with imprisonment",
"of either description for a term which may extend to seven years, and shall also be",
liable to fine.,
THE INDIAN PENAL CODE,
CHAPTER XVIII OF OFFENCES RELATING TO DOCUMENTS AND TO,
PROPERTY MARKS,
[s 474] Having possession of document described in sections 466 or 467,
knowing it to be forged and intending to use it as genuine.,
"94.[Whoever has in his possession any document or electronic record, knowing the",
same to be forged and intending that the same shall fraudulently or dishonestly be,
"used as genuine, shall, if the document or electronic record is one of the description",
"mentioned in section 466 of this Code], be punished with imprisonment of either",
"description for a term which may extend to seven years, and shall also be liable to fine;",
"and if the document is one of the description mentioned in section 467, shall be",
"punished with 95.[imprisonment for life], or with imprisonment of either description, for",
"a term which may extend to seven years, and shall also be liable to fine.",
COMMENT.—,
"This section resembles sections 242, 243 and 259.",
"The offence under section 474, IPC, 1860, is made out by the mere fact of possession",
of forged documents knowing them to be forged and intending the same to be,
"fraudulently and dishonestly used. So even if such documents are not actually used, it",
"need not absolve the accused from the mischief of provisions contained in section 474,",
"IPC. Thus, where the accused falsely posed as an I.A.S. officer and as a Joint Director",
(Vigilance) attached to the Central Bureau of Investigation and was also found in,
possession of fictitious documents supporting such claim and such documents were,
being created by him from time to time with a view to entangle people in bogus,
"criminal cases, it was held that the accused was an impostor and had intended to use",
"these faked documents in furtherance of his criminal design. He was, therefore, rightly",
"convicted under section 474, IPC.96.",
"94. Subs. by The Information Technology Act (Act 21 of 2000), section 91 and First Sch for the",
"words ""whoever has in his possession …., section 466 of this code"", w.e.f. 17 October 2000. The",
"words ""electronic record"" have been defined in section 29A.",
"95. Subs. by Act 26 of 1955, section 117 and Sch, for ""transportation for life"" (w.e.f. 1 January",
1956).,
"96. Dharam Pal, 1985 Cr LJ 474 (Del).",
THE INDIAN PENAL CODE,
CHAPTER XVIII OF OFFENCES RELATING TO DOCUMENTS AND TO,
PROPERTY MARKS,
[s 475] Counterfeiting device or mark used for authenticating documents,
"described in section 467, or possessing counterfeit marked material.",
"Whoever counterfeits upon, or in the substance of, any material, any device or mark",
used for the purpose of authenticating any document described in section 467 of this,
"Code, intending that such device or mark shall be used for the purpose of giving the",
appearance of authenticity to any document then forged or thereafter to be forged on,
"such material, or who, with such intent, has in his possession any material upon or in",
"the substance of which any such device or mark has been counterfeited, shall be",
"punished 97.[with imprisonment for life], or with imprisonment of either description",
"for a term which may extend to seven years, and shall also be liable to fine.",
COMMENT.—,
"The commencement of the forgery of banknotes and other similar securities, where it",
"has proceeded to the length which is described in this section, is treated as a",
substantive offence and punished. This section supplements the provisions of section,
472.,
"97. Subs. by Act 26 of 1955, section 117 and Sch, for ""transportation for life"" (w.e.f. 1 January",
1956).,
THE INDIAN PENAL CODE,
CHAPTER XVIII OF OFFENCES RELATING TO DOCUMENTS AND TO,
PROPERTY MARKS,
[s 476] Counterfeiting device or mark used for authenticating documents other,
"than those described in section 467, or possessing counterfeit marked",
material.,
"Whoever counterfeits upon, or in the substance of, any material, any device or mark",
used for the purpose of authenticating 98.[any document or electronic record] other,
"than the documents described in section 467 of this Code, intending that such device",
or mark shall be used for the purpose of giving the appearance of authenticity to any,
"document then forged or thereafter to be forged on such material, or who, with such",
"intent, has in his possession any material upon or in the substance of which any such",
"device or mark has been counterfeited, shall be punished with imprisonment of either",
"description for a term which may extend to seven years, and shall also be liable to",
fine.,
COMMENT.—,
"This section is similar to the preceding section, but as the document, the counterfeit of",
"which is made punishable, is not of so much importance as in that section, the",
punishment is not so severe.,
"98. Subs. by The Information Technology Act (Act 21 of 2000), section 91 and First Sch for the",
"words ""any document"", w.e.f. 17 October 2000. The words ""electronic record"" have been defined",
in section 29A.,
THE INDIAN PENAL CODE,
CHAPTER XVIII OF OFFENCES RELATING TO DOCUMENTS AND TO,
PROPERTY MARKS,
"[s 477] Fraudulent cancellation, destruction, etc., of will, authority to adopt or",
valuable security.,
"Whoever fraudulently or dishonestly, or with intent to cause damage or injury to the",
"public or to any person, cancels, destroys or defaces, or attempts to cancel, destroy or",
"deface, or secretes or attempts to secrete any document which is or purports to be a",
"will, or an authority to adopt a son, or any valuable security, or commits mischief in",
"respect of such documents, shall be punished with 99.[imprisonment for life], or with",
"imprisonment of either description for a term which may extend to seven years, and",
shall also be liable to fine.,
COMMENT.—,
This section applies when the document tampered with or destroyed is either a will or,
an authority to adopt or a valuable security. Owing to the great importance of,
documents of this kind the punishment provided is severe.,
1. 'Document'.—The document must be a genuine one. The offence under this section,
cannot be committed in respect of a document which is a forgery.100.,
"99. Subs. by Act 26 of 1955, section 117 and Sch, for ""transportation for life"" (w.e.f. 1 January",
1956).,
"100. Akbar Hossain, (1938) 43 Cal WN 222.",
THE INDIAN PENAL CODE,
CHAPTER XVIII OF OFFENCES RELATING TO DOCUMENTS AND TO,
PROPERTY MARKS,
[s 477A] Falsification of accounts.,
"Whoever, being a clerk, officer or servant, or employed or acting in the capacity of a",
"clerk, officer or servant, wilfully, and with intent to defraud, destroys, alters, mutilates",
"or falsifies any 101.[book, electronic record, paper, writing], valuable security or",
"account which belongs to or is in the possession of his employer, or has been",
"received by him for or on behalf of his employer, or wilfully, and with intent to defraud,",
"makes or abets the making of any false entry in, or omits or alters or abets the",
"omission or alteration of any material particular from or in, any such 102.[book,",
"electronic record, paper, writing], valuable security or account, shall be punished with",
"imprisonment of either description for a term which may extend to seven years, or",
"with fine, or with both.",
Explanation.—It shall be sufficient in any charge under this section to allege a general,
intent to defraud without naming any particular person intended to be defrauded or,
"specifying any particular sum of money intended to be the subject of the fraud, or any",
particular day on which the offence was committed.],
COMMENT.—,
This section refers to acts relating to book-keeping or written accounts. It makes the,
falsification of books and accounts punishable even though there is no evidence to,
prove misappropriation of any specific sum on any particular occasion.,
[s 477A.1] Ingredients.—,
This section requires that—,
"1. The person coming within its purview must be a clerk, an officer, or a servant, or",
"acting in the capacity of a clerk, an officer, or a servant.",
2. He must wilfully and with intent to defraud—,
"(i) destroy, alter, mutilate, or falsify, any book, electronic record, paper, writing,",
"valuable security, or account which:",
"(a) belongs to or is in the possession of his employer, or",
(b) has been received by him for or on behalf of his employer;,
(ii) make or abet the making of any false entry in or omit or alter or abet the,
"omission or alteration of any material particular from or in any such book, paper,",
"writing, valuable security or account.",
"To convict a person under section 477-A IPC, 1860, the prosecution has to prove that",
"there was a wilful act, which had been made with an intent to defraud and while proving",
"""Intention to defraud"" the prosecution has to further prove two elements that the act",
"was an act of deceit and it had caused an injury. In the present case, there may be an",
"injury, but there is no deceit.103.",
The principles laid down by the Supreme Court in Harnam Case104. are that there,
should be a wilful act of an accused with an intention to defraud. So both elements,
must be present and in other words it would mean that the act should be a wilful act,
"and should also be done with an intention to defraud. While trying to define ""intent to",
"defraud"", the Court noted that it contains two elements, deceit and injury. There is no",
"doubt that to convict a person under section 477-A IPC, the prosecution has to prove",
"that there was a wilful act, which had been made with an intent to defraud and while",
"proving ""Intention to defraud"" the prosecution has to further prove two elements that",
"the act was an act of deceit and it had caused an injury. In the present case, there may",
"be an injury, but there is no deceit.105.",
[s 477A.2] CASES.—,
"Where, however, the documents alleged to have been falsified are found to be missing",
"from office records, no charge under section 477A, IPC, 1860, can be made out;106.",
where the Nazir of Special Judicial Magistrate's Court accepted an amount as fine but,
failed to deposit it in the treasury and made false entries in the Register of Judicial,
"Fines saying that the amount had been deposited, it was held that he was guilty of",
"offences under sections 409, 467, 468 and 477A, IPC.107.",
"101. Subs. by The Information Technology Act (Act 21 of 2000), section 91 and First Sch for the",
"words ""book, paper, writing"", w.e.f. 17 October 2000. The words ""electronic record"" have been",
defined in section 29A.,
"102. Subs. by The Information Technology Act (Act 21 of 2000), section 91 and First Sch for the",
"words ""book, paper, writing"", w.e.f. 17 October 2000. The words ""electronic record"" have been",
defined in section 29A.,
"103. Kandipalli Madhavarao v State of AP, 2007 Cr LJ 4555 (AP).",
104. Supra.,
"105. Kandipalli Madhavarao v State of AP, 2007 Cr LJ 4555 (AP).",
"106. Rasul Mohd v State of Maharashtra, 1972 Cr LJ 313 : AIR 1972 SC 521 ; V Srinivasa Reddy v",
"State of AP, AIR 1998 SC 2079 [LNIND 1998 SC 158] : 1998 Cr LJ 2918 , false advance shown by",
bank employee to customers against their FDs. This was abuse of position as public servant.,
Audit report was against any such manipulation. Proper documents were also not produced,
before the court. Evidence actually produced was also not examined properly. The case was,
"sent back for fresh disposal without calling for additional evidence. See also Mohandass v State,",
"1998 Cr LJ 3409 (Mad); Sharif Masin v State (UT Chandigarh), 1998 Cr LJ 1689 (P&H).",
"107. State of Punjab v Rathanchand, 1984 Cr LJ NOC 153 (P&H). See also Ravichandran v State",
"by Dy. Supdt. of Police, Madras, 2010 Cr LJ 2879 (SC) : AIR 2010 SC 1922 [LNINDORD 2010 SC",
"76] ; Mir Nagivi Askari v CBI, AIR 2009 SC 528 [LNIND 2008 SC 1354] : (2009) 15 643; State v",
"Mohan, AIR 2008 SC 368 [LNIND 2007 SC 1250] : (2007) 14 SCC 667 [LNIND 2007 SC 1250] .",
THE INDIAN PENAL CODE,
CHAPTER XVIII OF OFFENCES RELATING TO DOCUMENTS AND TO,
PROPERTY MARKS,
108.,
Of [***] Property and Other Marks,
[s 478] [Omitted],
"[Rep. by the Trade and Merchandise Marks Act, 1958 (43 of 1958, section 135 and Sch.",
(w.e.f. 25-11-1959).],
"108. Amendment.—The word ""trade"" has been omitted by the Trade and Merchandise Marks",
"Act, 1958 (Act XLIII of 1958), section 135 and Sch. The Act came into force on 25 November",
1959.,
THE INDIAN PENAL CODE,
CHAPTER XVIII OF OFFENCES RELATING TO DOCUMENTS AND TO,
PROPERTY MARKS,
108.,
Of [***] Property and Other Marks,
[s 479] Property mark.,
A mark used for denoting that movable property belongs to a particular person is,
called a property mark.,
COMMENT.—,
The distinction between 'trade mark' and 'property mark' is not recognised in English,
law.,
"108. Amendment.—The word ""trade"" has been omitted by the Trade and Merchandise Marks",
"Act, 1958 (Act XLIII of 1958), section 135 and Sch. The Act came into force on 25 November",
1959.,
THE INDIAN PENAL CODE,
CHAPTER XVIII OF OFFENCES RELATING TO DOCUMENTS AND TO,
PROPERTY MARKS,
108.,
Of [***] Property and Other Marks,
[s 480] [Omitted],
"[Rep. by the Trade and Merchandise Marks Act, 1958 (43 of 1958), section 135 and",
Sch. (w.e.f 25-11-1959).],
"108. Amendment.—The word ""trade"" has been omitted by the Trade and Merchandise Marks",
"Act, 1958 (Act XLIII of 1958), section 135 and Sch. The Act came into force on 25 November",
1959.,
THE INDIAN PENAL CODE,
CHAPTER XVIII OF OFFENCES RELATING TO DOCUMENTS AND TO,
PROPERTY MARKS,
108.,
Of [***] Property and Other Marks,
[s 481] Using a false property mark.,
"Whoever marks any movable property or goods or any case, package or other",
"receptacle containing movable property or goods, or uses any case, package or other",
"receptacle having any mark thereon, in a manner reasonably calculated to cause it to",
"be believed that the property or goods so marked, or any property or goods contained",
"in any such receptacle so marked, belong to a person to whom they do not belong, is",
said to use a false property mark.,
COMMENT.—,
False property mark.—This section defines the offence of using a false property mark.,
A property mark is intended to denote ownership over all movable property belonging,
to a person whether it is all of one kind or of different kinds. So long as the person,
"owns movable property, his property mark impressed upon them remains his, though",
any particular article out of it may after such impression pass out of his hands and,
cease to be his.109.,
The function of a property mark to denote certain ownership is not destroyed because,
any particular property on which it was impressed has ceased to be of that ownership.,
[s 481.1] Ingredients.—,
This section requires two essentials:—,
"1. Marking any movable property or goods, or any case, package or receptacle",
"containing goods; or using any case, package or receptacle, with any mark",
thereon.,
2. Such marking or using must be in a manner reasonably calculated to cause it to,
"be believed that the property or goods so marked, or the property or goods,",
"contained in such receptacle, belonged to the person to whom they did not",
belong.,
The Supreme Court in Sumant Prasad's case said that the concept of a trade mark,
"under section 2(1)(g) of Trade and Merchandise Marks Act, 1958, is distinct from that",
"of a property mark under section 479 of IPC, 1860. It means the concept of trade mark",
"has not nullified the concept of property mark. Thus, where the accused finding that his",
'Puspa Raj' scent could not capture the market copied the property mark from the,
carton of complainant's best-selling scent 'Basant Bahar' in toto and marketed his,
"inferior product under the same name, it was held that he had committed the offence",
of both using a false property mark as well as of selling goods marked with a,
counterfeit property mark. The fact that the complainant loosely mentioned in his,
"complaint 'trade mark' did not make any difference, for despite this the complainant's",
allegations clearly made out that the accused tried to palm off his inferior scent as if it,
"was manufactured by and belonged to the complainant. He was, therefore, rightly",
"convicted under sections 482 and 486, IPC.110.",
"108. Amendment.—The word ""trade"" has been omitted by the Trade and Merchandise Marks",
"Act, 1958 (Act XLIII of 1958), section 135 and Sch. The Act came into force on 25 November",
1959.,
"109. Dahyabhai, (1904) 6 Bom LR 513 .",
"110. Sumant Prasad v Sheojanan, 1972 Cr LJ 1707 (SC).",
THE INDIAN PENAL CODE,
CHAPTER XVIII OF OFFENCES RELATING TO DOCUMENTS AND TO,
PROPERTY MARKS,
108.,
Of [***] Property and Other Marks,
[s 482] Punishment for using a false property mark.,
"Whoever uses 111.[***] any false property mark shall, unless he proves that he acted",
"without intent to defraud, be punished with imprisonment of either description for a",
"term which may extend to one year, or with fine, or with both.",
COMMENT.—,
To succeed on the charges under sections 482 and 486 the complainant had to,
"establish that the appellant marked the scent manufactured and sold by him, or the",
packets and receptacles containing such scent or used packets or receptacles bearing,
"that mark, and that he did so in a manner reasonably calculated to cause it to be",
believed that the goods so marked or the scent contained in the packets and,
receptacles so marked belong to the complainant.112.,
"108. Amendment.—The word ""trade"" has been omitted by the Trade and Merchandise Marks",
"Act, 1958 (Act XLIII of 1958), section 135 and Sch. The Act came into force on 25 November",
1959.,
"111. The words ""any false trade mark or"" omitted by Act 43 of 1958, section 135 and Sch (w.e.f.",
25 November 1959).,
"112. Sumat Prasad Jain v Sheojanam Prasad, AIR 1972 SC 2488 [LNIND 1972 SC 399] : (1973) 1",
SCC 56 [LNIND 1972 SC 399] .,
THE INDIAN PENAL CODE,
CHAPTER XVIII OF OFFENCES RELATING TO DOCUMENTS AND TO,
PROPERTY MARKS,
108.,
Of [***] Property and Other Marks,
[s 483] Counterfeiting a property mark used by another.,
Whoever counterfeits any 113.[***] property mark used by any other person shall be,
punished with imprisonment of either description for a term which may extend to two,
"years, or with fine, or with both.",
"108. Amendment.—The word ""trade"" has been omitted by the Trade and Merchandise Marks",
"Act, 1958 (Act XLIII of 1958), section 135 and Sch. The Act came into force on 25 November",
1959.,
"113. The words ""trade mark or"" omitted by Act 43 of 1958, section 135 and Sch (w.e.f. 25",
November 1959).,
THE INDIAN PENAL CODE,
CHAPTER XVIII OF OFFENCES RELATING TO DOCUMENTS AND TO,
PROPERTY MARKS,
108.,
Of [***] Property and Other Marks,
[s 484] Counterfeiting a mark used by a public servant.,
"Whoever counterfeits any property mark used by a public servant, or any mark used",
by a public servant to denote that any property has been manufactured by a particular,
"person or at a particular time or place, or that the property is of a particular quality or",
"has passed through a particular office, or that it is entitled to any exemption, or uses",
"as genuine any such mark knowing the same to be counterfeit, shall be punished with",
"imprisonment of either description for a term which may extend to three years, and",
shall also be liable to fine.,
COMMENT.—,
The offence under this section is an aggravated form of the offence described in the,
preceding one. Enhanced punishment is inflicted where the mark used by a public,
servant is counterfeited.,
"108. Amendment.—The word ""trade"" has been omitted by the Trade and Merchandise Marks",
"Act, 1958 (Act XLIII of 1958), section 135 and Sch. The Act came into force on 25 November",
1959.,
THE INDIAN PENAL CODE,
CHAPTER XVIII OF OFFENCES RELATING TO DOCUMENTS AND TO,
PROPERTY MARKS,
108.,
Of [***] Property and Other Marks,
[s 485] Making or possession of any instrument for counterfeiting a property,
mark.,
"Whoever makes or has in his possession any die, plate or other instrument for the",
"purpose of counterfeiting a property mark, or has in his possession a property mark",
for the purpose of denoting that any goods belong to a person to whom they do not,
"belong, shall be punished with imprisonment of either description for a term which",
"may extend to three years or with fine, or with both.",
COMMENT.—,
The making or possession of instruments for counterfeiting a property mark is hereby,
punished.,
"108. Amendment.—The word ""trade"" has been omitted by the Trade and Merchandise Marks",
"Act, 1958 (Act XLIII of 1958), section 135 and Sch. The Act came into force on 25 November",
1959.,
THE INDIAN PENAL CODE,
CHAPTER XVIII OF OFFENCES RELATING TO DOCUMENTS AND TO,
PROPERTY MARKS,
108.,
Of [***] Property and Other Marks,
[s 486] Selling goods marked with a counterfeit property mark.,
"114.[Whoever sells, or exposes, or has in possession for sale, any goods or things with",
a counterfeit property mark] affixed to or impressed upon the same or to or upon any,
"case, package or other receptacle in which such goods are contained, shall, unless he",
proves—,
"(a) that, having taken all reasonable precautions against committing an offence",
"against this section, he had at the time of the commission of the alleged",
"offence no reason to suspect the genuineness of the mark, and",
"(b) that, on demand made by or on behalf of the prosecutor, he gave all the",
information in his power with respect to the persons from whom he obtained,
"such goods or things, or",
"(c) that otherwise he had acted innocently,",
be punished with imprisonment of either description for a term which may,
"extend to one year, or with fine, or with both.",
COMMENT.—,
This section punishes those who sell or have in possession for sale goods marked with,
"a counterfeit property mark. For the purpose of section 486, it is necessary to establish",
"that the appellant had sold, or exposed for sale, or had in his possession for sale goods",
having a mark calculated to cause it to be believed that the scent was the scent,
manufactured by and belonging to the complainant.115.,
"108. Amendment.—The word ""trade"" has been omitted by the Trade and Merchandise Marks",
"Act, 1958 (Act XLIII of 1958), section 135 and Sch. The Act came into force on 25 November",
1959.,
"114. Subs. by Act 43 of 1958, section 135 and Sch, for certain words (w.e.f. 25 November",
1959).,
"115. Sumat Prasad Jain v Sheojanam Prasad, AIR 1972 SC 2488 [LNIND 1972 SC 399] : (1973) 1",
SCC 56 [LNIND 1972 SC 399] .,
THE INDIAN PENAL CODE,
CHAPTER XVIII OF OFFENCES RELATING TO DOCUMENTS AND TO,
PROPERTY MARKS,
108.,
Of [***] Property and Other Marks,
[s 487] Making a false mark upon any receptacle containing goods.,
"Whoever makes any false mark upon any case, package or other receptacle",
"containing goods, in a manner reasonably calculated to cause any public servant or",
any other person to believe that such receptacle contains goods which it does not,
"contain or that it does not contain goods which it does contain, or that the goods",
contained in such receptacle are of a nature or quality different from the real nature or,
"quality thereof, shall, unless he proves that he acted without intent to defraud, be",
punished with imprisonment of either description for a term which may extend to,
"three years, or with fine, or with both.",
COMMENT.—,
This section is more comprehensive than sections 482 and 486. The fraudulent making,
of false marks of any description on goods for the purpose of deceiving public,
"servants, such as customs officers, is punishable under this section.",
"108. Amendment.—The word ""trade"" has been omitted by the Trade and Merchandise Marks",
"Act, 1958 (Act XLIII of 1958), section 135 and Sch. The Act came into force on 25 November",
1959.,
THE INDIAN PENAL CODE,
CHAPTER XVIII OF OFFENCES RELATING TO DOCUMENTS AND TO,
PROPERTY MARKS,
108.,
Of [***] Property and Other Marks,
[s 488] Punishment for making use of any such false mark.,
Whoever makes use of any such false mark in any manner prohibited by the last,
"foregoing section shall, unless he proves that he acted without intent to defraud be",
punished as if he had committed an offence against that section.,
COMMENT.—,
This section punishes the making use of a false mark. The preceding section punishes,
the making of such a mark.,
"108. Amendment.—The word ""trade"" has been omitted by the Trade and Merchandise Marks",
"Act, 1958 (Act XLIII of 1958), section 135 and Sch. The Act came into force on 25 November",
1959.,
THE INDIAN PENAL CODE,
CHAPTER XVIII OF OFFENCES RELATING TO DOCUMENTS AND TO,
PROPERTY MARKS,
108.,
Of [***] Property and Other Marks,
[s 489] Tampering with property mark with intent to cause injury.,
"Whoever removes, destroys, defaces or adds to any property mark, intending or",
"knowing it to be likely that he may thereby cause injury to any person, shall be",
punished with imprisonment of either description for a term which may extend to one,
"year, or with fine, or with both.",
COMMENT.—,
"This section punishes the tampering with a property mark, criminal intention or",
knowledge on the part of the accused is necessary.,
"108. Amendment.—The word ""trade"" has been omitted by the Trade and Merchandise Marks",
"Act, 1958 (Act XLIII of 1958), section 135 and Sch. The Act came into force on 25 November",
1959.,
THE INDIAN PENAL CODE,
CHAPTER XVIII OF OFFENCES RELATING TO DOCUMENTS AND TO,
PROPERTY MARKS,
Of Currency-Notes and Bank-Notes,
[s 489A] Counterfeiting currency-notes or bank-notes.,
"[Whoever counterfeits, or knowingly performs any part of the process of",
"counterfeiting, any currency-note or bank-note, shall be punished with 116.",
"[imprisonment for life], or with imprisonment of either description for a term which",
"may extend to ten years, and shall also be liable to fine.",
"Explanation.—For the purposes of this section and of sections 117.[489B, 489C, 489D",
"and 489E], the expression ""bank-note"" means a promissory note or engagement for",
the payment of money to bearer on demand issued by any person carrying on the,
"business of banking in any part of the world, or issued by or under the authority of any",
"State or Sovereign Power, and intended to be used as equivalent to, or as a substitute",
for money.],
COMMENT.—,
The term counterfeit is defined in section 28 of the Code. Circulation of counterfeit,
currency would cause irreparable harm to our economy. Existence of a parallel,
economy would be highly detrimental to the growth of the nation. It affects the society,
as a whole. Offences affecting the people at large are to be viewed in a different angle.,
"In such cases, harm would be caused not to an individual or to a few individuals. The",
adverse impact of trafficking in counterfeit currency in a large scale would be,
"disastrous. It would appear that the society does not cast much of a stigma on people,",
"who deal with counterfeit currency.118. Sections 489A, 489B, 489C and 489D were",
introduced in order to provide more adequately for the protection of currency-notes and,
"banknotes from forgery. Under the IPC, 1860, which was passed prior to the existence",
"of a paper currency in India, currency-notes were not protected by any special",
"provisions, but merely by the general provisions, applying to the forgery of valuable",
securities. Before these sections were introduced charges for forging currency-notes,
"had to be preferred under section 467, for uttering them under section 471, and for",
making or possessing counterfeit plates under section 472. The provisions of section,
467 afforded sufficient means for dealing both with forgery generally and with forgery,
of currency-notes. But it was at times difficult to obtain a conviction under the other,
sections. This provision says that the prosecution is required to prove that the accused,
was knowingly performing any part of the process to counterfeit currency-notes. It is,
"needless to mention that for proving the offence of conspiracy, there must be some",
convincing evidence to the prosecution to prove that it was pre-arranged plan of all or,
some of the accused either for preparing fake currency or for their circulation. Only on,
the basis of circumstance like some persons were found in possession of counterfeit,
"currency-notes at or about the same time, inference cannot be drawn that all of them",
"had engaged themselves in a conspiracy. However, if an accused is found in",
"possession of counterfeit currency-notes, it is up to him to furnish satisfactory",
explanation regarding the possession. This proposition is also applicable in respect of,
the material which can be used for preparing fake currency-notes and the process,
"which can be used for making fake currency-notes. If there is no such explanation, a",
person found in possession of such material and counterfeit currency-notes can be,
convicted for offence under section 489-A of IPC.119.,
The object is not only to protect the economy of the country but also to provide,
adequate protection to currency-notes and banknotes.120. The section deals not only,
"with the complete act of counterfeiting, it also covers cases where the accused",
performs any part of the process of counterfeiting.121.,
[s 489A.1] Counterfeit currency-notes and terrorism.—,
The Act 3 of 2013 introduced amendment in the Unlawful Activities (Prevention) Act,
1967 to include the act of doing damage to the monetary stability of India by way of,
"production or smuggling or circulation of high quality counterfeit Indian paper currency,",
"coin or of any other material within the purview of terrorism. Thus, the act of dealing",
with high quality counterfeit Indian currency-notes and coins with the intention of,
threatening the economic security of India is viewed as a terrorist act. (For details see,
"UA (P) Act, 1967, as amended by Act 3 of 2013.)",
[s 489A.2] Foreign currency.—,
The Supreme Court in State of Kerala v Mathai Vergheese122. held that the expression,
'any currency-note' refers to all currency-notes and cannot be confined only to Indian,
currency. The purpose of the provisions is to maintain market respectability of the,
currency by assuring people that notes being offered to them are genuine and not,
worthless pieces of paper. The Legislature could not have intended to exclude from the,
"protection counterfeiting of currency-notes issued by foreign States. Further, the",
expression 'bank-note' as used by sections 498A–498E would include a dollar bill or,
note because they are also issued under the authority of a State or sovereign power.,
This section is similar to sections 231 and 255.,
[s 489A.3] CASES.—,
"Where many fake currency-notes, hundreds of stamp and some material required for",
preparing fake currency-notes were allegedly recovered from room and also from,
"person of appellant, and evidence and material was seized by police. The Court ruled",
out possibility of implanting the material by police for falsely implicating the accused. It,
"was held that accused appellant liable to be convicted under section 489-A, IPC,",
1860.123.,
"116. Subs. by Act 26 of 1955, section 117 and Sch, for ""transportation for life"" (w.e.f. 1 January",
1956).,
"117. Subs. by Act 35 of 1950, section 3 and Sch II, for ""489C and 489D"".",
"118. Ahammed v State, 2010 Cr LJ 1797 (Ker).",
"119. Narayan Maruti Waghmode v State of Maharashtra, 2011 Cr LJ 3318 (Bom).",
"120. K Hashim v State of TN, (2005) 1 SCC 237 [LNIND 2004 SC 1142] : AIR 2005 SC 128 [LNIND",
2004 SC 1142] .,
"121. K Hashim v State of TN, 2005 Cr LJ 143 : (2005) 1 SCC 237 [LNIND 2004 SC 1142] : AIR",
2005 SC 128 [LNIND 2004 SC 1142] .,
"122. State of Kerala v Mathai Vergheese, (1986) 4 SCC 746 [LNIND 1986 SC 461] : AIR 1987 SC",
"33 [LNIND 1986 SC 461] : 1987 Cr LJ 308 ; Surinder Pal v State of Punjab, 2009 Cr LJ 4100",
"(P&H), counterfeiting US dollars, accused convicted. K Hashim v State of TN, 2005 Cr LJ 143 :",
"AIR 2005 SC 128 [LNIND 2004 SC 1142] : (2005) 1 SCC 237 [LNIND 2004 SC 1142] , the",
"evidence of accomplice, the artist, provided material for corroboration of evidence, being the",
"evidence of an accomplice, reliable. Chuwan Suba v State of Sikkim, 2013 Cr LJ 2135 (Sik),",
allegation of possession of machinery to print fake notes. Conviction was held improper since,
the disclosure statement was not voluntary.,
"123. Narayan Maruti Waghmode v State of Maharashtra, 2011 Cr LJ 3318 (Bom); Md Amir",
"Hussain v State of Assam, 2010 Cr LJ. 4201 [Gau]. See also Roney Dubey v State of WB, 2007 Cr",
"LJ 4577 (Cal); Jayeshkumar Panchal v State, 2007 Cr LJ 2254 (Guj); Golo Mandla Ram Rao v",
"State of Jharkhand, 2004 Cr LJ 1738 (Jha).",
THE INDIAN PENAL CODE,
CHAPTER XVIII OF OFFENCES RELATING TO DOCUMENTS AND TO,
PROPERTY MARKS,
Of Currency-Notes and Bank-Notes,
"[s 489B] Using as genuine, forged or counterfeit currency-notes or bank-notes.",
"[Whoever sells to, or buys or receives from, any other person, or otherwise traffics in",
"or uses as genuine, any forged or counter-feit currency-note or bank-note, knowing or",
"having reason to believe the same to be forged or counter-feit, shall be punished with",
"124.[imprisonment for life], or with imprisonment of either description for a term",
"which may extend to ten years, and shall also be liable to fine.]",
COMMENT.—,
"This section resembles sections 239, 241 and 258. It provides against trafficking in",
forged or counterfeit notes. The section deals with the use of counterfeited currency-,
notes.125.,
An offence under section 489-B has the following essential ingredients:—,
"(i) selling, buying or receiving from any person or otherwise trafficking currency-",
note or banknote;,
(ii) any forged or counterfeit currency-note or bank-note;,
(iii) knowing (or having reason to believe) that such note was forged or counterfeit.,
"To bring home an offence under section 498-B, IPC, 1860: (a) the prosecution is to",
prove that the relevant currency-note or banknote was forged or counterfeit; (b) that the,
"accused sold to or received from, some person, or trafficked in, or used as genuine the",
aforesaid currency-note or banknote; (c) that when the accused did so he had,
knowledge or reason to believe about its being forged or counterfeit. In order to sustain,
"the conviction of an accused, the prosecution has not only to prove that he had the",
"possession of counterfeit note, having reason to believe it as such, but also to prove",
"circumstances which lead clearly, indubitably and irresistibly to his intention to",
use/circulate the notes in the public. Such intention can be proved by a collateral,
"circumstance that he had palmed off such notes before, or that he was in possession",
"of such notes in such large a number, that his possession for any other purpose was",
inexplicable.126. Merely because the petitioner had been found to be in possession of,
the counterfeit notes of similar denomination of the same series and numbers closer,
"to the numbers of the notes detected by the bank, it would be difficult to accept that the",
notes have been used or circulated by the applicant.127. Mere possession does not,
necessarily indicate that there was mal-intention or intention to use. Intention to use,
"the counterfeit currency-notes, being an essential ingredient of the offence under",
"sections 489B and 489C of IPC, prosecution is, no doubt, saddled with the liability to",
establish such intention or attempt on the part of the appellant/accused to use such,
"counterfeit notes. On careful scrutiny of the evidence on record there was no evidence,",
"whatsoever, which suggests that the appellant had made any effort to use the",
"counterfeit currency-notes. Since evidence on that issue is lacking manifestly, hence,",
the conviction of the appellant under section 489B of IPC cannot be sustained.128.,
[s 489B.1] Burden of proof.—,
"Under section 489B of IPC, 1860, the burden is on the prosecution to prove that at the",
"time when the accused was passing the counterfeit notes, he knew that they were",
forged one and the mere possession of such notes by him does not shift the burden of,
the accused to prove his innocent possession of such notes. The knowledge or reason,
to believe that the note was forged has to be proved to fix the liability under sections,
"489B and 489C of IPC. In the case of Golo Mandla Ram Rao v State of Jharkhand,129.",
the counterfeit currency-notes and incriminating articles were recovered from the,
possession of the accused and only the counterfeit coins from the possession of the,
co-accused.,
[s 489B.2] Information regarding the involvement of the accused admissible.—,
Where on the basis of information regarding the source of counterfeit currency notes,
"accused, who supplied it and subsequently all the others involved in the racket were",
"arrested, though there were no recovery of notes from the intermediaries, the",
"information was held admissible as the police were not aware of the other accused,",
who were involved in the offence.130.,
"124. Subs. by Act 26 of 1955, section 117 and Sch, for ""transportation for life"" (w.e.f. 1 January",
1956).,
"125. K Hashim v State of TN, 2005 Cr LJ 143 : AIR 2005 SC 128 [LNIND 2004 SC 1142] : (2005) 1",
SCC 237 [LNIND 2004 SC 1142] .,
"126. Kiran Kumar K Khanda v State of Maharashtra, 2011 Cr LJ 2748 (Bom).",
"127. Aditya Yadav v State, 2013 Cr LJ 3352 (Bom).",
"128. Ashu Mondal v State of WB, 2013 Cr LJ 715 (Cal); Tej Pratap Singh v State, 2012 Cr LJ 486",
(Del).,
"129. Golo Mandla Ram Rao v State of Jharkhand, 2004 Cr LJ 1738 : 2004 AIR Jhar HCR 453.",
"130. Mehboob Ali v State of Rajasthan, 2015 (4) Crimes 357 (SC) : (2016) 14 SCC 640 [LNIND",
2015 SC 630] .,
THE INDIAN PENAL CODE,
CHAPTER XVIII OF OFFENCES RELATING TO DOCUMENTS AND TO,
PROPERTY MARKS,
Of Currency-Notes and Bank-Notes,
[s 489C] Possession of forged or counterfeit currency-notes or bank-notes.,
"[Whoever has in his possession any forged or counterfeit currency-note or banknote,",
knowing or having reason to believe the same to be forged or counterfeit and,
"intending to use the same as genuine or that it may be used as genuine, shall be",
punished with imprisonment of either description for a term which may extend to,
"seven years, or with fine, or with both.]",
COMMENT.—,
The ingredients which are required to constitute an offence under section 489C are as,
follows:,
(1) The note in question is a currency-note or bank-note;,
(2) Such note was forged or counterfeited;,
(3) The accused was in possession of the currency-note or bank-note;,
(4) The accused intended to use the same as genuine;,
(5) The accused knew or had reason to believe the note to be forged.131.,
"This section resembles sections 242, 243 and 257. It deals with possession of a forged",
or counterfeit currency-note or banknote. The mere possession of a forged note is not,
an offence. It is not only necessary to prove that the accused was in possession of the,
forged note; but it should be further established that (1) at the time of this possession,
"he knew the note to be forged or had reason to believe it to be so, and (2) he intended",
to use it as genuine. The onus lies on the prosecution to prove circumstances which,
"lead clearly, indubitably and irresistibly to the inference that the accused had the",
intention to foist the notes on the public.132. Possession and knowledge that the,
currency-notes in question were counterfeit are both necessary. The section is not,
confined to Indian currency-notes alone.133. Possession of a large number of,
counterfeit currency-notes may itself justify drawing up of a presumption that the,
intention of the accused was to use them as genuine or that they may be used as,
"genuine within the meaning of section 489C, IPC, 1860. Thus, where the accused led",
the searching officer to his Press premises and after digging the floor of it brought out,
a box containing many bundles of counterfeit currency-notes or where he produced 20,
"bundles of counterfeit currency-notes from his sachet, it was held an offence under",
"section 489C, IPC, was made out.134. This is, however, not to say that such a",
presumption can always be drawn from the mere fact of possession of a large bundle,
"of counterfeit currency-notes by the accused. Thus, where the accused while trying to",
alter a two-rupee counterfeit note was caught and on search of his person 99 more,
such counterfeit notes were recovered but the accused claimed in course of his,
examination that he got these notes by selling three quintals of tamarind to an,
unknown person and that he had no knowledge that they were counterfeit till his,
interrogation by the police and the notes too were not of such description that a mere,
"look at them will convince anyone that they were counterfeit, it was held that the",
"accused could not be convicted under sections 389B and 389C, IPC, in the absence of",
any evidence or circumstance showing that he had knowledge that the notes were,
counterfeit notes. In this case the accused was not even asked in his examination,
"under section 342, Cr PC, 1973 (now section 313) if he knew the notes to be",
counterfeit.135.,
"In Umashankar v State of Chhatisgarh,136. the Supreme Court examined the facts of the",
case and principle involved therein as follows:137.,
"A perusal of the provisions, shows that mens rea of offences under Section 489B and",
"489C is, ""knowing or having reasons to believe the currency-notes or bank-notes are",
"forged or counterfeit"". Without the afore-mentioned mens rea, selling, buying or",
receiving from another person or otherwise trafficking in or using as genuine forged or,
counterfeit currency-notes or bank-notes is not enough to constitute offence under,
Section 489B of IPC. So also possessing or even intending to use any forged or,
counterfeit currency-notes or bank-notes is not sufficient to make out a case under,
"Section 489C in the absence of mens rea, noted above. No material is brought on",
record by the prosecution to show that the appellant had the requisite mens rea. The,
"High Court, however, completely missed this aspect. The learned trial Judge on the",
basis of the evidence of [some prosecution witnesses] that they were able to make out,
"that currency note alleged to have been given to [one of them] was fake ""presumed""",
"such a mens rea. On the date of the incident, the appellant was said to be 18 years old",
student. On the facts of this case the presumption drawn by the trial Court is not,
"warranted under Section 4 of the Evidence Act. Further, it is also not shown that any",
specific question with regard to the currency-notes being fake or counterfeit was put to,
the appellant in his examination under Section 313 of the Criminal Procedure Code. On,
"these facts, we have no option but to hold that the charges framed under Sections",
"489B and 489C are not proved. We, therefore, set aside the conviction and sentence",
passed on the appellant under Sections 489B and 489C of IPC and acquit him of the,
said charges.138.,
[s 489C.1] Burden of proof.—,
"In order to uphold conviction under section 489C of IPC, 1860, intention to use",
"counterfeit currency-notes as genuine, is also to be proved beyond reasonable doubt.",
"Since the burden lies on the prosecution to prove the possession, knowledge and",
"intention to use the currency-notes, it is also burden of the prosecution to establish the",
circumstances which lead clearly and irresistibly to the inference that the accused had,
intention to pass the currency-notes to the public. When a large number of counterfeit,
"notes are recovered from the accused, in absence of any reasonable explanation",
"tendered by the accused, this case must give rise to the presumption that possession",
"of such notes was for trafficking in currency-notes. That presumption, no doubt, is a",
"presumption of fact, which can be drawn from the circumstances of the case. The fact",
that the accused was found in possession of a large number of notes gives rise to,
inference that it might be used as genuine.139.,
"131. Panna Lal Gupta v State of Sikkim, 2010 Cr LJ 825 (Sik); See also Karunakaran Nadar v State",
"of Kerala, 2000 Cr LJ 3748 (Ker).",
"132. Bur Singh, (1930) 11 Lah 555. Md Amir Hussain v State of Assam, 2010 Cr LJ 4201 [Gau].",
"133. K Hashim v State of TN, 2005 Cr LJ 143 : AIR 2005 SC 128 [LNIND 2004 SC 1142] : (2005) 1",
SCC 237 [LNIND 2004 SC 1142] .,
"134. State of Karnataka v KS Ramdas, 1976 Cr LJ 228 (Kant). See also Ashu Mondal v State of",
"WB, 2013 Cr LJ 715 (Cal), recovery of large number of counterfeit notes gives rise to",
presumption that possession was for trafficking in currency notes. Conviction under section,
"489C upheld. Chuwan Suba v State of Sikkim, 2013 Cr LJ 2135 (Sik), conviction was held",
"improper since the disclosure statement is found not voluntary. Tej Pratap Singh v State, 2012 Cr",
"LJ 486 (Del), difference in number of currency, held not material, conviction was held proper.",
"Prabhakar Narayan Patlola v State of Maharashtra, 2011 Cr LJ 738 (Bom); Kurukshetra Sena v",
"State of Chhattisgarh, 2011 Cr LJ 2493 ; Inthiyas Ahmed v State, 2011 Cr LJ 4802 (Kant),",
prosecution has not proved that the notes seized from the possession of the accused were the,
same notes which were subjected for examination and further that on examination they were,
found to be counterfeit notes. Accused acquitted.,
"135. M Mammutti v State of Karnataka, 1979 Cr LJ 1383 (SC). Followed in Mohan Lal Sarma v",
"State of WP, 1990 Cr LJ 215 (Cal), where the court added that mere possession does not shift",
the burden to the accused. The prosecution has to prove the presence of the type of mens rea,
"required by these sections. Vijayan v State of Kerala, 2002 Cr LJ 187 (Ker), the informant stated",
that even at first blush he was convinced that the notes in the possession of the accused were,
counterfeit as there was difference in colour. The accused held liable under the section. Abdul,
"Majeed v State of Maharashtra, 2002 Cr LJ 720 (Bom), the notes in question did not carry any",
"sign of being counterfeit, the accused was an ordinary person, mere possession by him did not",
"create a presumption of guilty knowledge. Mohammed Yasin v State of UP, 1997 Cr LJ 3188 (All),",
a note of which two parts were pasted together was presented to a shopkeeper. He suspected,
genuineness and consulted another shopkeeper for guidance. Counterfeiting was so tactful that,
the accused could not detect it. He did not run away. He remained at the shop till police arrived.,
He had no other note. Ingredients of the offence not made out.,
"136. Umashankar v State of Chhatisgarh, AIR 2001 SC 3074 [LNIND 2001 SC 2237] : 2001 Cr LJ",
4696 .,
137. Ibid at p 3075.,
"138. Citing M Mammutti v State of Karnataka, AIR 1979 SC 1705 [LNIND 1979 SC 125] : 1979 Cr",
LJ 1383 .,
"139. Ashu Mondal v State of WB, 2013 Cr LJ 715 (Cal).",
THE INDIAN PENAL CODE,
CHAPTER XVIII OF OFFENCES RELATING TO DOCUMENTS AND TO,
PROPERTY MARKS,
Of Currency-Notes and Bank-Notes,
[s 489D] Making or possessing instruments or materials for forging or,
counterfeiting currency-notes or bank-notes.,
"[Whoever makes, or performs, any part of the process of making, or buys or sells or",
"disposes of, or has in his possession, any machinery, instrument or material for the",
"purpose of being used, or knowing or having reason to believe that it is intended to be",
"used, for forging or counterfeiting any currency-note or bank-note, shall be punished",
"with 140.[imprisonment for life], or with imprisonment of either description for a term",
"which may extend to ten years, and shall also be liable to fine.]",
COMMENT.—,
"This section is analogous to sections 233, 234, 256, 257 and 485.",
Where there is no evidence to show that the printing machine found on the land of the,
accused had any connection with the printing of the counterfeit notes found in the,
"possession of the accused, he could not be held guilty under section 489, IPC,",
1860.141. It is not necessary that the machinery for counterfeiting found in possession,
of the accused should be the whole set required for counterfeiting.142.,
"140. Subs. by Act 26 of 1955, section 117 and Sch, for ""transportation for life"" (w.e.f. 1 January",
1956).,
"141. State of Karnataka v Ramdas, Supra.",
"142. K Hashim v State of TN, 2005 Cr LJ 143 : AIR 2005 SC 128 [LNIND 2004 SC 1142] : (2005) 1",
SCC 237 [LNIND 2004 SC 1142] .,
THE INDIAN PENAL CODE,
CHAPTER XVIII OF OFFENCES RELATING TO DOCUMENTS AND TO,
PROPERTY MARKS,
Of Currency-Notes and Bank-Notes,
[s 489E] Making or using documents resembling currency-notes or bank-,
notes.,
"(1) [Whoever makes, or causes to be made, or uses for any purpose whatsoever, or",
"delivers to any person, any document purporting to be, or in any way",
"resembling, or so nearly resembling as to be calculated to deceive, any",
currency-note or bank-note shall be punished with fine which may extend to,
one hundred rupees.,
"(2) If any person, whose name appears on a document the making of which is an",
"offence under sub-section (1), refuses, without lawful excuse, to disclose to a",
police-officer on being so required the name and address of the person by,
"whom it was printed or otherwise made, he shall be punished with fine which",
may extend to two hundred rupees.,
(3) Where the name of any person appears on any document in respect of which,
any person is charged with an offence under sub-section (1) or on any other,
"document used or distributed in connection with that document it may, until",
"the contrary is proved, be presumed that person caused the document to be",
made.],
COMMENT.—,
This section was introduced by Act VI of 1943 because photo prints and other,
"reproductions of currency-notes and banknotes, though printed for innocent purposes,",
had passed into circulation in a number of cases and it was considered undesirable,
that in a country like India with a large mass of illiterate and ignorant persons such,
reproductions should be permitted to go unchecked before they menaced the safety of,
the currency.,
While the counterfeiting of any currency-note or banknote constituted a criminal,
"offence under section 489A read with section 28, there was no legal provision",
"prohibiting the reproduction, or the production of imitations, of currency-notes and",
banknotes for such purposes as advertisement and the like where there was no,
"intention to practise deception on any one, nor even a knowledge that deception was",
likely to be practised with the help of imitations.143. There is no material on the record,
"to show that the xerox machine, the voltage stabiliser, the blank papers and the paper",
containing some impression of the Indian currency-note belonged to the convict. Mere,
"fact that they were seized is not enough. Therefore, the question of the convict",
becoming liable for possession of the aforesaid articles does not arise.144.,
"143. Statement of Objects and Reasons, Gaz of India, 1943, Part V, p 56, dated 10 February 1943.",
"144. Roney Dubey v State of WB, 2007 Cr LJ 4577 (Cal).",
THE INDIAN PENAL CODE,
CHAPTER XIX OF THE CRIMINAL BREACH OF CONTRACTS OF SERVICE,
The authors of the Code observe:,
We agree with the great body of Jurists in thinking that in general a mere breach of,
contract ought not to be an offence but only to be the subject of a civil action.,
"To this general rule there are, however, some exceptions. Some breaches of contract",
"are very likely to cause evil such as no damages or only very high damages can repair,",
and are also very likely to be committed by persons from whom it is exceedingly,
"improbable that any damages can be obtained. Such breaches of contract are, we",
"conceive, proper subjects for penal Legislation.1.",
[s 490] [Repealed],
2.[* * *].,
1. The Works of Lord Macaulay - Note P.,
2. Omitted by Act 3 of 1925.,
THE INDIAN PENAL CODE,
CHAPTER XIX OF THE CRIMINAL BREACH OF CONTRACTS OF SERVICE,
The authors of the Code observe:,
We agree with the great body of Jurists in thinking that in general a mere breach of,
contract ought not to be an offence but only to be the subject of a civil action.,
"To this general rule there are, however, some exceptions. Some breaches of contract",
"are very likely to cause evil such as no damages or only very high damages can repair,",
and are also very likely to be committed by persons from whom it is exceedingly,
"improbable that any damages can be obtained. Such breaches of contract are, we",
"conceive, proper subjects for penal Legislation.1.",
[s 491] Breach of contract to attend on and supply wants of helpless person.,
"Whoever, being bound by a lawful contract to attend on or to supply the wants of any",
"person who, by reason of youth, or of unsoundness of mind, or of a disease or bodily",
"weakness, is helpless or incapable of providing for his own safety or of supplying his",
"own wants, voluntarily omits so to do, shall be punished with imprisonment of either",
"description for a term which may extend to three months, or with fine which may",
"extend to two hundred rupees, or with both.",
COMMENT.—,
Object.—The authors of the Code say:,
We also think that persons who contract to take care of infants of the sick and of the,
"helpless, lay themselves under an obligation of a very peculiar kind, and may with propriety",
be punished if they omit to discharge their duty. The misery and distress which their neglect,
may cause is such as the largest pecuniary payment would not repair; they generally come,
"from the lower ranks of life, and would be unable to pay anything. We, therefore, propose to",
add to this class of contracts the sanction of the penal law.3.,
[s 491.1] Ingredients.—This section requires:—,
1. Binding of a person by a lawful contract.,
2. Such contract must be to attend on or to supply the wants of a person who is,
helpless or incapable of providing for his own safety or of supplying his own,
wants by reason of,
(i) youth; or,
(ii) unsoundness of mind; or,
(iii) disease; or,
(iv) bodily weakness.,
3. Voluntary omission to perform the contract by the person bound by it.,
Under this section it is not the breach of contract towards the other party to the,
"contract that is to be regarded, but the breach of the legal obligation towards the",
"incapable person, which had been accepted and transferred by the contract.",
[s 491.2] Ordinary servants do not come within this section.—,
"The accused, a cook, on a morning whilst the complainant's wife was ill and unable to",
"supply her wants, left his service without warning or permission. It was alleged that the",
illness of the complainant's wife was aggravated thereby. It was held that the accused,
"was engaged only as an ordinary cook to a family, and was not bound to attend on, or",
"to supply the wants of, any helpless person, and that, therefore, this section did not",
apply.4.,
1. The Works of Lord Macaulay - Note P.,
3. The Works of Lord Macaulay - Note P.,
"4. Vithu, (1892) (Unrep) CrC 608.",
THE INDIAN PENAL CODE,
CHAPTER XIX OF THE CRIMINAL BREACH OF CONTRACTS OF SERVICE,
The authors of the Code observe:,
We agree with the great body of Jurists in thinking that in general a mere breach of,
contract ought not to be an offence but only to be the subject of a civil action.,
"To this general rule there are, however, some exceptions. Some breaches of contract",
"are very likely to cause evil such as no damages or only very high damages can repair,",
and are also very likely to be committed by persons from whom it is exceedingly,
"improbable that any damages can be obtained. Such breaches of contract are, we",
"conceive, proper subjects for penal Legislation.1.",
[s 492] [Repealed],
5.[* * *].,
1. The Works of Lord Macaulay - Note P.,
5. Omitted by Act 3 of 1925.,
THE INDIAN PENAL CODE,
CHAPTER XX OF OFFENCES RELATING TO MARRIAGE,
[s 493] Cohabitation caused by a man deceitfully inducing a belief of lawful,
marriage.,
Every man who by deceit causes any woman who is not lawfully married to him to,
believe that she is lawfully married to him and to cohabit or have sexual intercourse,
"with him in that belief, shall be punished with imprisonment of either description for a",
"term which may extend to ten years, and shall also be liable to fine.",
COMMENT.—,
"Upon perusal of section 493 of the IPC, 1860 to establish that a person has committed",
"an offence under the said section, it must be established that a person had deceitfully",
"induced a belief to a woman, who is not lawfully married to him, that she is a lawfully",
married wife of that person and thereupon she should cohabit or should have had,
"sexual intercourse with that person. Looking at the afore-stated section, it is clear that",
"the accused must induce a woman, who is not lawfully married to him, to believe that",
"he is married to her and as a result of the afore-stated representation, the woman",
should believe that she was lawfully married to him and there should be cohabitation or,
sexual intercourse as a result of the deception. The essence of an offence under,
"section 493 IPC, 1860 is, therefore, practice of deception by a man on a woman as a",
consequence of which the woman is led to believe that she is lawfully married to him,
although she is not and then make her cohabit with him.1. The offence under this,
"section may also be punished as rape under section 375, clause (4).2.",
[s 493.1] Ingredients.—,
The section contains two ingredients:—,
(1) Deceit causing a false belief in the existence of a lawful marriage.,
(2) Cohabitation or sexual intercourse with the person causing such belief.,
[s 493.2] Proof of marriage.—,
"Section 493 IPC, 1860 do not presuppose a marriage between the accused and the",
victim necessarily by following a ritual or marriage by customary ceremony. What has,
been clearly laid down and emphasised is that there should be an inducement of belief,
in the woman that she is lawfully married to the accused/ appellant and the,
inducement of belief of a lawful marriage cannot be interpreted so as to mean or infer,
that the marriage necessarily had to be in accordance with any custom or ritual or,
"under the Special Marriage Act, 1954. If the evidence on record indicate inducement of",
a belief in any manner in the woman which cannot possibly be enlisted but from which,
it can reasonably be inferred by ordinary prudence that she is a lawfully married wife of,
"the man accused of an offence under section 493 IPC, 1860 the same will have to be",
"treated as sufficient material to bring home the guilt under section 493 IPC, 1860.",
Interpretation of the section in any other manner including an assertion that the,
marriage should have been performed by customary rituals or in similar manner only in,
"order to establish that a belief of marriage had been induced, is bound to frustrate the",
"very object and purpose of the provision for which it has been incorporated in the IPC,",
1860 which is clearly to prevent the deceitful act of a man inducing the belief of a,
lawful marriage for the purpose of cohabitation merely to satisfy his lust for sexual,
pleasure.3.,
"Where a man and woman exchanged garlands, the man promising to marry formally,",
"and had sex as a result of which the woman became pregnant, it was held that the",
exchange of garlands did not amount to falsely inducing the woman to believe that she,
was married to the man. Section 493 was not attracted.4. Where a woman married a,
man with full knowledge that he was already a married man and there was no proof,
"that the man falsely induced her to believe anything, it was held that the ingredients of",
the offence under section 493 were not made out.5.,
[s 493.3] Rape and section 493.—,
"In a case, the complainant made the allegation of fraud played by the petitioner by",
suppressing the fact of earlier marriage and the alleged physical relationship were,
under a belief that she was a legally wedded wife of the petitioner. The Court held that,
"a bare perusal of provision of sections 493 and 495 of IPC, 1860 shows that the bodily",
relationship or sexual intercourse by a husband with his second wife falls under the,
"category of offence under sections 493 and 495 of IPC, 1860 and it cannot be treated",
"as rape as defined in section 375 of IPC, 1860. It is an independent offence, the",
cognizance of which can be taken by the Court on the basis of complaint filed by the,
"complainant herself, therefore, the offence punishable under section 376 of IPC, 1860",
is not made out as the alleged act of sexual intercourse by the petitioner with the,
"complainant may fall within the category of sections 493 and 495 of IPC, 1860 but not",
"in the category of rape as defined in section 375 of IPC, 1860 and made punishable",
"under section 376 of IPC; therefore, the cognizance of section 376 of IPC, 1860 is",
against the settled principles of law.6.,
"[s 493.4] Cohabitation during the operation of divorce decree, set aside later.—",
The fact that the marriage between the appellant and the respondent was dissolved by,
"an ex parte decree and while that order was in force, the respondent husband",
"continued sexual relationship with the appellant, until he married another woman.",
Subsequently the ex parte decree was set aside by the Court. The Supreme Court held,
that the allegation that there was deception on the part of the husband for having,
"sexual relationship and that constituted an offence under section 493 of IPC, 1860",
would not arise for the reason that there was subsistence of valid marriage during this,
period as the ex parte decree was set aside later.7.,
"1. Ram Chandra Bhagat v State of Jharkhand, 2013 (1) SCC 562 [LNIND 2010 SC 1138] .",
"2. Kartick Kundu, 1967 Cr LJ 1411 (Cal). Sammun v State of MP, 1988 Cr LJ 498 (MP) where the",
court added that the accused promising to marry the woman and passing her to others as his,
"wife does not come under this section. Moideenkutty Haji v Kunhikoya, 1987 Cr LJ 1106 (Ker—",
"FB), a woman, who knows that the man whom she is permitting sex is not married to him,",
cannot have recourse to this section to punish him.,
"3. Ram Chandra Bhagat v State of Jharkhand, 2013 (1) SCC 562 [LNIND 2010 SC 1138] . The",
"three-Judge Bench accepted the view of Gyan Sudha Mishra J, in the referral order.",
"4. Amruta Gadtia v Trilochan Pradhan, 1993 Cr LJ 1022 (Ori).",
"5. Saurava Barik v Gouri Kaudi, 1994 Cr LJ 440 . The court referred to Raghunath Padhy v State,",
"AIR 1954 Ori. 198 [LNIND 1954 ORI 28] . Akhaya Kumar v State or Orissa, 1998 Cr LJ 1757 (Ori),",
the accused and prosecutrix were in love with each other for several years. The accused married,
another and still continued to cohabit with the prosecutrix on false pretences of marrying her.,
"The prosecutrix was aware of this fact. Hence, there was no deception. Framing of charge",
"against the accused was not proper. Mana Begum v Jula Mohd, 1998 Cr LJ 3244 (Ori), evidence",
of the victim that the accused on promise to marry her had sex with her. The court said that,
ingredients of the offence under s 493 were not made out.,
"6. Mahesh Kumar Dhawan v State of MP, 2012 Cr LJ 1639 .",
"7. Ravinder Kaur v Anil Kumar, AIR 2015 SC 2447 [LNIND 2015 SC 268] : (2015) 8 SCC 286",
[LNIND 2015 SC 268] .,
THE INDIAN PENAL CODE,
CHAPTER XX OF OFFENCES RELATING TO MARRIAGE,
[s 494] Marrying again during lifetime of husband or wife.,
"Whoever, having a husband or wife living, marries 1 in any case in which such",
"marriage is void by reason of its taking place during the life of such husband or wife, 2",
shall be punished with imprisonment of either description for a term which may,
"extend to seven years, and shall also be liable to fine.",
Exception3.—This section does not extend to any person whose marriage with such,
"husband or wife has been declared void by a Court of competent jurisdiction,",
nor to any person who contracts a marriage during the life of a former husband or,
"wife, if such husband or wife, at the time of the subsequent marriage, shall have been",
"continually absent from such person for the space of seven years, and shall not have",
been heard of by such person as being alive within that time provided the person,
"contracting such subsequent marriage shall, before such marriage takes place,",
inform the person with whom such marriage is contracted of the real state of facts so,
far as the same are within his or her knowledge.,
State Amendment,
"Andhra Pradesh.—In A.P. the offence is cognizable, non-bailable, triable by the Magistrate",
"of the first class and non-compoundable vide A.P. Act No. 3 of 1992, Section 2 (w.e.f. 15-",
2-1992).,
COMMENT.—,
This section punishes the offence known to the English law as bigamy.,
[s 494.1] Scope.—,
"The section does not apply to Mohammedan males, who are allowed to marry more",
"than one wife, but it applies to Mohammedan females, and to Hindus, Christians8. and",
Parsis9. of either sex.,
[s 494.2] Ingredients.—,
"Section 494, IPC, 1860, inter alia, requires the following ingredients to be satisfied,",
"namely,",
(i) the accused must have contracted first marriage;,
(ii) he must have married again;,
(iii) the first marriage must be subsisting; and,
(iv) the spouse must be living.10.,
"1. 'Having a husband or wife living, marries, etc'.—The validity of a marriage in the case",
of Mohammedans and Jews will be determined in accordance with their religious,
"usages: in the case of Native Christians, by Act XV of 1872, in the case of Parsis, by Act",
"III of 1936; and in the case of Hindus, Buddhists, Sikhs and Jains, by Act XXV of 1955.",
"The validity of a marriage solemnised under the Special Marriage Act, 1954 will be",
determined by its provisions.11.,
There must be at the time of the second marriage a previous valid and subsisting,
"marriage.12. If the first marriage is not a valid marriage, no offence is committed by",
contracting a second marriage.13.,
"Divorce dissolves a valid marriage, and the parties obtaining such dissolution can re-",
marry.14.,
A Mohammedan woman marrying within the period of her iddat (the period of four,
months which a divorced wife was to observe after divorce before re-marrying) is not,
guilty of bigamy.15.,
"[s 494.3] Second marriage under Special Marriage Act, 1954.—",
"SI Jafri J, of the Allahabad High Court observed:16.",
Notwithstanding the fact that the personal law permits a muslim male to contract four,
"marriages, if a second marriage is contracted under the Special Marriage Act 1954 vis-a-vis",
the fact that he has a legally wedded wife who has been married to him under the,
"Mohammedan law, s. 494 has to claw at the erring male … Mohammedan law does not take",
preference over Special Marriage Act 1954 … There being no saving clause for the applicant,
"to purge him of the charges u/s. 494 …, the applicant is liable to be punished under [this",
section].,
2. 'Marries in any case in which such marriage is void by reason of its taking place,
during the life of such husband or wife'.—The Supreme Court has observed that prima,
"facie, the expression ""whoever marries"" must mean ""whoever marries validly"" or",
"""whoever … marries and whose marriage is a valid one"". If the marriage is not a valid",
one according to the law applicable to the parties no question of its being void by,
reason of its taking place during the life of the wife or the husband of the person arises.,
"If the marriage is not a valid marriage, it is no marriage in the eyes of the law.17. The",
"Supreme Court in another case had held that in a bigamy case, the second marriage as",
"a fact, that is to say, the essential ceremonies constituting it, must be proved.18.",
Admission of marriage by the accused is not evidence of it for the purposes of proving,
"marriage in an adultery or bigamy case.19. Thus, where the second Hindu marriage was",
"not proved by showing saptapadi and homam, the mere production of a marriage",
"certificate under section 16 of the Special Marriage Act, 1954 would not be sufficient to",
prove that the second marriage was performed validly by performing all the essential,
ceremonies of a valid marriage. The mere fact of subsequent registration of the second,
marriage does not prove the validity of second marriage.20. Merely because the second,
marriage even if performed by performing all the essential ceremonies turns out to be,
"void by virtue of section 17 of the Hindu Marriage Act, 1955, it cannot be said that",
"section 494, IPC, 1860 will not be attracted.21. If the second marriage was not proved",
to have been validly performed by observing essential ceremonies and customs in the,
"community, the conviction under section 494, IPC, 1860 could not be maintained.22.",
Perhaps the Courts in India were obliged to take the view they have taken because of,
"the word ""solemnised"" occurring in section 17 of the Hindu Marriage Act, 1955 and the",
"inhibition contained in the proviso to section 50 of the Indian Evidence Act, 1972 which",
forbids taking into consideration even the opinion of a person with special means of,
knowledge to show that the two persons were always received and treated as husband,
"and wife by their friends and relatives so far offences under sections 494, 495, etc., IPC,",
1860 are concerned.23.,
"Thus, if one deliberately keeps a small lacuna, e.g., instead of taking the seven steps",
"(saptapadi), takes only six steps while celebrating the second marriage, one can easily avoid",
the penalty prescribed by these sections even though one virtually ruins the lives of two,
"girls. If we are to effectively root out polygamy from this country, we must amend s. 494,",
"IPC, and s. 17 of the Hindu Marriage Act, in such a way that anyone who goes through a",
form of marriage during the lifetime of his or her spouse will come within the mischief of,
the offence of bigamy. At the same time we should also delete from the proviso to s. 50 of,
"the Indian Evidence Act, the last portion which says 'or in prosecutions u/s. 494, 495, 497 or",
"498 of the Indian Penal Code'. The National Committee on the Status of Women too made,",
"more or less, similar recommendations in its report. It is also felt that ss. 493, 494, 495 and",
"496, IPC, which have an element of cheating in them and affect unsophisticated rural",
women more than women in urban areas should be made cognizable so that these poor,
women could get justice without being required to engage lawyers at their own cost.24.,
The Courts are also changing their viewpoint. In Indu Bhagya Natekar v Bhagya,
"Pandurang Natekar,25. it was held that it is not correct to say that in every case of",
"bigamy, unless the second marriage can be proved by bringing in the evidence of the",
"performance of ceremonies itself, a conviction under section 494 is virtually",
impossible. The accused can be convicted even if there is other reliable evidence to,
establish the charge.,
"Where in a particular community 'saptapadi' was not an essential ceremony, the",
"provisions of section 7-A of the Hindu Marriage Act, 1955 applied and, therefore, the",
performance of other ceremonies prevalent in the community constituted a valid,
marriage.26.,
"Under the provisions of the Indian Christian Marriage Act (XV of 1872), the first",
"accused, who was a Roman Catholic Indian Christian, married the complainant, who",
"was a Protestant, in a Protestant Church, the ceremony being performed by a",
"Protestant Pastor, and subsequently, after obtaining a release deed from her, he",
"married the second accused in a Roman Catholic Church, the ceremony being",
performed by a Roman Catholic priest. It was held that the first accused had,
committed the offence of bigamy punishable under this section. The release deed,
executed by the complainant did not operate as a dissolution of the marriage between,
the first accused and herself. The marriage between the first accused and the,
"complainant was a legal and valid marriage and, as it was subsisting when the first",
"accused married the second accused, the marriage of the first accused with the",
second accused was void by reason of its taking place during the life of the,
complainant.27.,
Good faith and mistake of law are no defences to a charge of bigamy.28.,
[s 494.4] Conversion from Hinduism.—,
A married Hindu person contracted second marriage after embracing Islam. The,
Supreme Court said that despite his conversion he was guilty of the offence under,
"section 17 of the Hindu Marriage Act, 1955 read with section 494, IPC, 1860 since mere",
conversion did not automatically dissolve his first marriage.29. The Court followed its,
"own decision in Sarla Mudgal v UOI,30. which was to the effect that a Hindu husband",
"who had, after conversion to Islam, contracted a second marriage without dissolving",
his first marriage was guilty of the offence under section 494.,
[s 494.5] Ex parte divorce.—,
The accused husband entered into second marriage after obtaining ex parte divorce,
against his first wife. The Court said that he could not possibly be convicted under the,
"section, even if the ex parte divorce is subsequently set aside. Criminal proceeding",
"against the husband was quashed, it being only an exercise in futility.31.",
[s 494.6] Custom of second marriage in the community.—,
A person was not allowed to be prosecuted under the section because of a custom in,
the community. The parties belonged to a scheduled tribe. Their marriage was,
governed by the customs and usages applicable to the tribe. There was no allegation in,
the complaint nor a proof of it that there was a custom of monogamy in the,
community.32.,
3. Exception.—The Exception lays down three conditions:—,
1. Continual absence of one of the parties for the space of seven years;,
2. The absent spouse not having been heard of by the other party as being alive within,
that time; and,
3. The party marrying must inform the person with whom he or she marries of the,
above fact.,
[s 494.7] Locus standi to file complaint.—,
"According to section 198 of Cr PC, 1973, no Court shall take cognizance of an offence",
punishable under Chapter XX of the IPC (45 of 1860) except upon a complaint made by,
some person aggrieved by the offence. Where the person aggrieved by an offence,
"punishable under sections 494 or 495 of the IPC (45 of 1860) is the wife, complaint",
"may be made on her behalf by her father, mother, brother, sister, son or daughter or by",
"her father's or mother's brother or sister, (with the leave of the Court) or by any other",
"person related to her by blood, marriage or adoption.",
[s 494.8] Complaint by Second wife.—,
Section 494 is intended to achieve laudable object of monogamy. This object can be,
"achieved only by expanding the meaning of the phrase ""aggrieved person"". Having",
"regard to the scope, purpose, context and object of enacting section 494 IPC, 1860 and",
"also the prevailing practices in the society sought to be curbed by section 494 IPC,",
1860 there is no manner of doubt that the second wife should be an aggrieved person.,
"Until the declaration contemplated by section 11 of the Hindu Marriage Act, 1955 is",
"made by a competent Court, the woman with whom second marriage is solemnised",
continues to be the wife within the meaning of s 494 IPC and would be entitled to,
maintain a complaint against her husband.33.,
[s 494.9] Police report.—,
"In the case of Ushaben v Kishorbhai Chunilal Talpada34.,35. taking note of sub-section",
"(4) of section 155, Cr PC, 1973 the Apex Court held that if a complaint contains the",
"allegation about commission of offences both under section 498-A of the IPC, 1860 as",
"well as section 494 of the IPC, 1860 the Court can take cognizance thereof even on a",
police report. The bar under section 198 would not be applicable as complaint lodged,
"before police for offence under section 494 IPC, 1860 also related to other cognizable",
"offences and if police files a charge-sheet, the Court can take cognizance also of",
offence under section 494 along with other cognizable offences by virtue of section,
"155(4) of the Cr PC, 1973.36.",
[s 494.10] Jurisdiction.—,
"According to section 182(2) of the Cr PC, 1973 any offence punishable under sections",
"494 or 495 of the IPC (45 of 1860), may be inquired into or tried by a Court within",
whose local jurisdiction the offence was committed or the offender last resided with,
his or her spouse by the first marriage or the wife by the first marriage has taken up,
permanent residence after the commission of the offence.37.,
[s 494.11] Divorce in foreign country.—,
The marriage of the accused with the complainant was dissolved by a decree of,
divorce granted by a District Court in Sweden. The marriage of the accused with,
another lady after expiry of the period of appeal was held to be not an offence under,
the section.38.,
8. Act XV of 1872.,
9. Act III of 1936.,
"10. Pashaura Singh v State of Punjab, AIR 2010 SC 922 [LNIND 2009 SC 1988] : 2010 Cr LJ 875",
(SC).,
11. Act XLIII of 1954.,
"12. Padi v State, AIR 1963 HP 16 [LNIND 1962 HP 8] .",
"13. Chadwick, (1847) 11 QB 173 , 205.",
14. Where without granting divorce the court passed orders relieving the physically weak wife,
from the burden of the husband's sex demands and at the request of the wife permitted him to,
"take another wife; that was held to be wrong. Santosh Kumari v Surjit Singh, AIR 1990 HP 77",
[LNIND 1989 HP 19] : 1990 Cr LJ 1012 .,
"15. Abdul Ghani v Azizul Huq, (1911) 39 Cal 409 .",
"16. Anwar Ahmed v State of UP, 1991 Cr LJ 717 at 719. Radhika Sameena v SHO Habeebnagar",
"PS, 1997 Cr LJ 1655 (AP), a Muslim entered into second marriage under the Special Marriage",
"Act, 1954. He was liable to be prosecuted for the offence of bigamy.",
"17. Bhaurao, (1965) 67 Bom LR 423 (SC). For a critical examination of such cases, see MP",
"Singh, Bigamy : A Conjecture for Deconstruction, (1988) 30 J ILI 225.",
18. Proof must be by cogent evidence. The mere fact of living together as husband and wife or,
of some letters on the point would not do. Religious ceremony of saptapadi also not proved.,
"Revanasiddaswamy HM v State of Karnataka, 1990 Cr LJ 1001 (Kant), no specific allegation that",
saptapadi was not required in the community. Second marriage not proved. Santi Deb Berma v,
"Kanchan Prava Devi, AIR 1991 SC 816 : 1991 Cr LJ 660 .",
"19. Kanwal Ram, AIR 1966 SC 614 [LNIND 1965 SC 198] .",
"20. Baby Kar v Ram Rati, 1975 Cr LJ 836 (Cal); see also Chandra Bahadur, 1978 Cr LJ 942",
(Sikkim).,
"21. Gopal Lal v State of Rajasthan, 1979 Cr LJ 652 (SC).",
"22. L Obulamma, 1979 Cr LJ 849 (SC). Acting upon these cases in Kashiram v Somvati, 1992 Cr",
"LJ 760 , the MP High Court found evidence of second formally valid marriage, but the earlier one",
"was performed while the accused was a child, lesser sentence was awarded and the parents",
"who arranged the second marriage were not awarded jail term citing, Bhunda Sukru v Chetram,",
"1976 MPLJ 600 [LNIND 1975 MP 112] : 1977 Cr LJ 134 ; and Priya Bala v Suresh Chandra, AIR",
1971 SC 1153 [LNIND 1971 SC 163] : 1971 Cr LJ 939 . Where the second marriage was,
performed according to the Arya Samaj Custom and it was pleaded that accordingly only three,
"and a half-rounds of sacred fire were enough to complete the marriage, it was held that without",
"saptapadi the marriage was not complete; Urmila v State of UP, 1994 Cr LJ 2910 (All). Where",
"there was no proof of performance of necessary ceremonies in the second marriage, it was held",
that conviction for bigamy was not permissible and the accused could not be punished for,
"attempt to commit bigamy, Subir Kumar Kundu v State of WB, 1992 Cr LJ 1502 (Cal). D",
"Vijyalakhsmi v D Sanjeeva Reddy, 2001 Cr LJ 1583 , the first and second marriages should be",
proved to have been performed according to the legal or customary requirements applicable to,
the caste or community. The Andhra Pradesh State Amendment which has been approved by,
the President and which makes the offence cognizable would prevail over the Central,
"Legislation in case of conflict. P Satyanarayana v P Mallaiah, 1997 Cr LJ 211 : (1996) 6 SCC 122 ,",
the husband admitted second marriage after 10 years of desertion by his wife. The court said,
that the prosecution was not absolved of its burden of proving that the second wife was taken,
"after solemnising due ceremonies of Hindu marriage. Manju Ram Kalita v State of Assam, (2009)",
"13 SCC 330 [LNIND 2009 SC 1363] , concurrent finding of three courts below of the existence of",
"second marriage, the Supreme Court refused to interfere in such finding at the fourth place, and",
"also not in the punishment awarded. Purandar Sahoo v Golapi Sahoo, (2007) 15 SCC 696 ,",
"disputes between man and wife, the latter left and lived with parents for 14 years, complaint of",
"second marriage by the husband about four years ago from the date of complaint, prosecution",
"not successful because neither there was any good proof of a second marriage, nor any",
"explanation of four years' silence. Manju Ram Kalita v State of Assam, (2009) 13 SCC 330 [LNIND",
"2009 SC 1363] , petty quarrels could not be termed as ""cruelty"".",
"23. R Deb, Offences Against Women, 1985 Cr LJ, Journal portion, pp 9–16 (at p 11).",
24. Ibid.,
"25. Indu Bhagya Natekar v Bhagya Pandurang Natekar, 1992 Cr LJ 601 (Bom).",
"26. S Nagalingam v Sivagami, AIR 2001 SC 3576 [LNIND 2001 SC 1898] , the accused being",
already a married man at the time he was convicted of the offence under the section. The,
"matter was remanded to the trial court for proper punishment. Manju Devi v State of Bihar, 2000",
"Cr LJ 3382 (Pat), mere exchange of garlands could not take the place of a ceremony unless",
"there was a custom to that effect. Manjula v Mani, 1998 Cr LJ 3244 (Ori), first marriage",
"subsisting, second marriage proved by witnesses and entries in the marriage register under the",
"Hindu Marriage Act, 1955. Those who came to bless the second marriage were not held to be",
guilty of abetment. The court also said that solemnisation of second marriage in accordance,
"with applicable ceremonies is not necessary for conviction, viz., section 7A of the Hindu",
"Marriage Act, 1955. Yelamanchali Nageswari v Venkata Prasada Rao, 1998 Cr LJ 4128 (AP),",
admission of second marriage by the accused in the application for mutual divorce was not,
considered to be sufficient unless there was evidence of ceremonies or some other legally,
"sanctioned form. See also, Bhagwan Swaroop Srivastava v Asha Srivastava, 1998 Cr LJ 265 (Raj);",
"Sutesh Kurnat v State of Rajasthan, 1998 Cr LJ 601 (Raj); Elango S v S Ravindran, 1998 Cr LJ 3095",
"(Mad); Sham Singh v Satabjit Kaur, Cr LJ 4788 (P&H).",
"27. Gnanasoundari v Nallathambi, (1946) Mad 367. Prasanna Kumar v Dhanalaxmi, 1989 Cr LJ",
"1829 (Mad), where the date, place and form of second marriage were not given, nor witnesses",
"indicated, complaint not good. B Chandra Manikyamma v B Sudarasna Rao, 1988 Cr LJ 1849",
"(AP), second marriage must be strictly proved. Converting into another faith for show off and",
"solemnising a marriage under that faith, no second marriage is valid in law.",
"28. Narantakath v Parakkal, (1922) 45 Mad 986; Abdul Ghani v Azizul Hiq, (1911) 39 Cal 409 ,",
"dissented from. Gomathi v Vijayaraghavan, (1995) 1 Cr LJ 81 (Mad), the court did not order",
blood test of a child alleged to be from second wife for the purpose of proving a bigamous,
marriage. The mere birth of a child does not bring about a ceremonised marriage.,
"29. Lily Thomas v UOI, AIR 2000 SC 1650 [LNIND 2000 SC 827] : 2000 Cr LJ 2433 .",
"30. Sarla Mudgal v UOI, AIR 1995 SC 1531 [LNIND 1995 SC 661] : 1995 AIR SCW 2326 : 1995 Cr",
LJ 2926 : (1995) 3 SCC 635 [LNIND 1995 SC 661] .,
"31. Krishna Gopal Divedi v Prabha Divedi, AIR 2002 SC 389 [LNIND 2002 SC 142] .",
"32. Surajmani Stella Kujur (Dr) v Durga Charan Hansdah, AIR 2001 SC 938 [LNIND 2001 SC 412] .",
"33. A Subhash Babu v State of AP, AIR 2011 SC 3031 [LNIND 2011 SC 679] : 2011 (7) SCC 616",
"[LNIND 2011 SC 679] ; Babu Ram Saini v State of Uttaranchal, 2013 Cr LJ 1896 (Utt).",
"34. Also see Pintu Alias Sujit Kumar Giri v State Of Orissa, 2013 Cr LJ 2099 (Ori).",
"35. Ushaben v Kishorbhai Chunilal Talpada, (2012) 6 SCC 353 [LNINDU 2012 SC 25] : 2012 Cr LJ",
2234 .,
"36. A Subhash Babu v State of AP, AIR 2011 SC 3031 [LNIND 2011 SC 679] : 2011 (7) SCC 616",
"[LNIND 2011 SC 679] ; Victor Auxilium v State, 2008 Cr LJ 774 (Mad).",
"37. Azad @Naresh Kr Azad v State of Bihar, 2012 (2) Crimes 652 [LNIND 2012 PAT 329] (Pat).",
"38. T Venkateswarlu v State of AP, 1999 Cr LJ 39 (AP).",
THE INDIAN PENAL CODE,
CHAPTER XX OF OFFENCES RELATING TO MARRIAGE,
[s 495] Same offence with concealment of former marriage from person with,
whom subsequent marriage is contracted.,
Whoever commits the offence defined in the last preceding section having concealed,
"from the person with whom the subsequent marriage is contracted, the fact of the",
"former marriage, shall be punished with imprisonment of either description for a term",
"which may extend to ten years, and shall also be liable to fine.",
State Amendment,
"Andhra Pradesh.— The offence is cognizable, non-bailable, triable by the Magistrate of",
"the first class and non-compoundable vide A.P. Act No. 3 of 1992, Section 2 (w.e.f. 15-2-",
"1992), in A.P.",
COMMENT.—,
"The offence mentioned in section 495 IPC, 1860 is extension of section 494 IPC, 1860",
"and also is an aggravated form of bigamy provided in section 494 IPC, 1860. The",
complainant (second wife) has adduced enough evidence to prove that the accused,
had concealed the fact of the former marriage by assuring her that he had taken,
divorce from his first wife and subsequently married her by performing the essential,
"Hindu rites and ceremonies in accordance with section 7 of the Hindu Marriage Act,",
1955. It is undisputed that accused first got married to Smt. Vijay Saini and thereafter,
"to the complainant, as admission to this effect has been made by the accused himself",
"in his statement under section 313 Cr PC, 1973. Accused was rightly convicted under",
"section 495 IPC, 1860.39.",
[s 495.1] Right to file complaint.—,
"Non-filing of the complaint under sections 494 or 495 IPC, 1860 by the first wife does",
"not mean that the offence is wiped out. Even otherwise, the second wife suffers several",
"legal wrongs and legal injuries and hence, complainant (second wife) was having every",
"right to file the complaint under section 495 IPC, 1860.40.",
"A bare perusal of the provisions of sections 493 and 495 of IPC, 1860 shows that the",
bodily relationship or sexual intercourse by a husband with his second wife falls under,
"the category of offence under sections 493 and 495 of IPC, 1860 and it cannot be",
"treated as rape as defined in section 375 of IPC, 1860.41.",
"39. Babu Ram Saini v State Of Uttaranchal, 2013 Cr LJ 1896 (Utt).",
"40. Babu Ram Saini v State Of Uttaranchal, 2013 Cr LJ 1896 (Utt); A Subhash Babu v State of AP,",
AIR 2011 SC 3031 [LNIND 2011 SC 679] : 2011 (7) SCC 616 [LNIND 2011 SC 679] .,
"41. Mahesh Kumar Dhawan v State of MP, 2012 Cr LJ 1639 .",
THE INDIAN PENAL CODE,
CHAPTER XX OF OFFENCES RELATING TO MARRIAGE,
[s 496] Marriage ceremony fraudulently gone through without lawful marriage.,
"Whoever, dishonestly or with a fraudulent intention, goes through the ceremony of",
"being married, knowing that he is not thereby lawfully married, shall be punished with",
"imprisonment of either description for a term which may extend to seven years, and",
shall also be liable to fine.,
State Amendment,
"Andhra Pradesh.— The offence is cognizable, non-bailable, triable by the Magistrate of",
"the first class and non-compoundable vide A.P. Act No. 3 of 1992, Section 2 (w.e.f. 15-2-",
"1992), in A.P.",
COMMENT.—,
This section punishes fraudulent or mock marriages.,
It applies to cases in which a ceremony is gone through which would in no case,
"constitute a marriage, and in which one of the parties is deceived by the other into the",
"belief that it does constitute a marriage, or in which effect is sought to be given by the",
proceeding to some collateral fraudulent purpose. Where the ceremony gone through,
"does, but for the previous marriage, constitutes a valid marriage, and both parties are",
"aware of the circumstances of the previous marriage, s. 494 applies.42.",
[s 496.1] Ingredients.—,
The section requires two essentials:—,
1. Dishonestly or with a fraudulent intention going through the ceremony of marriage.,
2. Knowledge on the part of the person going through the ceremony that he is not,
thereby lawfully married.,
[s 496.2] Sections 493 and 496.—,
The two sections are somewhat alike: the difference appears to be that under section,
"493, deception is requisite on the part of the man, and cohabitation or sexual",
intercourse consequent on such deception. The offence under section 496 requires no,
"deception, cohabitation, or sexual intercourse as a sine qua non, but a dishonest or",
fraudulent abuse of the marriage ceremony. In the latter case the offence can be,
"committed by a man or woman, in the former, only by a man.",
[s 496.3] Sections 494 and 496.—,
"An offence under section 494 is different from an offence under section 496, IPC, 1860.",
If the accused intends that there should be valid marriage and honestly goes through,
"the necessary ceremonies during the lifetime of the other spouse, then it may be a case",
"under section 494, IPC, 1860, but if the accused only intends that there should only be a",
show of marriage and dishonestly and fraudulently goes through the marriage,
"ceremony knowing fully well that he is not legally married thereby, then it is an offence",
"under section 496, IPC, 1860.43.",
[s 496.4] CASE.—,
Where the accused married for the second time during the pendency of special appeal,
"against decree of divorce in violation of section 15 of the Hindu Marriage Act, 1955 but",
"without concealing the fact of pendency of the appeal from the girl or her parents, no",
"conviction could be entered under section 496, IPC, 1860 as the act of the accused was",
neither dishonest nor fraudulent.44.,
"42. Rama Sona, (1873) Unrep Cr C 77.",
"43. Kailash Singh, 1982 Cr LJ 1005 (Raj).",
"44. Ibid. Where the second marriage is performed fraudulently, complaint can be made by the",
"person so deceived, and not by the first regular wife. Prasanna Kumar v Dhanalaxmi, 1989 Cr LJ",
1829 (Mad).,
THE INDIAN PENAL CODE,
CHAPTER XX OF OFFENCES RELATING TO MARRIAGE,
[s 497] Adultery.,
Whoever has sexual intercourse with a person who is and whom he knows or has,
"reason to believe to be the wife of another man, without the consent or connivance of",
"that man, such sexual intercourse not amounting to the offence of rape, is guilty of",
"the offence of adultery, and shall be punished with imprisonment of either description",
"for a term which may extend to five years, or with fine, or with both. In such case the",
wife shall not be punishable as an abettor.,
State Amendment,
"Andhra Pradesh.— Punishment–Imprisonment for 5 years, or fine, or both–Non-",
"cognizable, bailable triable by 1st class Magistrate and non-compoundable vide A.P. Act 3",
"of 1992, w.e.f. 15-2-1992.",
COMMENT.—,
"In Joseph Shine v UOI,45. a Constitution bench of the Supreme Court decriminalised",
"adultery and held section 497 of the IPC, 1860 unconstitutional as violative of Articles",
14 and 21 of the Constitution. Under section 397 a man who had sex with a married,
woman without getting her husband's permission could be charged and face,
"punishment with imprisonment for a term up to five years, or with fine, or with both, if",
"convicted. Before, it was struck down, the cognizance of the offence was limited to",
"adultery committed with a married woman, and the male offender alone was made",
"liable to punishment. Thus, under the Code, adultery was an offence committed by a",
third person against a husband in respect of his wife. A married man was not liable if,
"had sexual intercourse with an unmarried woman, or with a widow, or even with a",
married woman whose husband consented to it.,
"Prior to the judgment in Joseph Shine case, the Supreme Court in Sowmithri Vishnu's case46.",
"had upheld the constitutional validity of section 497, IPC, 1860. In Joseph Shine v UOI, AIR",
"2018 SC 4898 , the Supreme Court observed that: Adultery is different from an offence",
committed under Section 498-A or any violation of the Protection of Women from Domestic,
"Violence Act, 2005 or, for that matter, the protection conceived of under Section 125 of the",
Code of Criminal Procedure or Sections 306 or 304B or 494 IPC. These offences are meant,
to sub-serve various other purposes relating to a matrimonial relationship and extinction of,
life of a married woman during subsistence of marriage. Treating adultery an offence would,
"tantamount to the State entering into a real private realm. The act, i.e., adultery does not fit",
"into the concept of a crime. If it is treated as a crime, there would be immense intrusion into",
the extreme privacy of the matrimonial sphere. It is better to be left as a ground for divorce.,
"For any other purpose as the Parliament has perceived or may, at any time, perceive, to treat",
"it as a criminal offence will offend the two facets of Article 21 of the Constitution, namely,",
"dignity of husband and wife, as the case may be, and the privacy attached to a relationship",
between the two.,
"45. Joseph Shine v UOI, AIR 2018 SC 4898 .",
"46. Sowmithri Vishnu v UOI, 1985 Cr LJ 1302 (SC) : AIR 1985 SC 1618 [LNIND 1985 SC 202] :",
"(1985) Supp SCC 137 . Again emphasised in V Revathi v UOI, (1988) 2 SCC 72 [LNIND 1988 SC",
20] : AIR 1988 SC 835 [LNIND 1988 SC 144] : (1988) 1 Ker LT 771 : (1988) 2 HLR 39 : (1988) 1,
Punj LR 649 .,
THE INDIAN PENAL CODE,
CHAPTER XX OF OFFENCES RELATING TO MARRIAGE,
[s 498] Enticing or taking away or detaining with criminal intent a married,
woman.,
Whoever takes or entices away any woman who is and whom he knows or has reason,
"to believe to be the wife of any other man, from that man, or from any person having",
"the care of her on behalf of that man, with intent that she may have illicit intercourse",
"with any person, or conceals or detains with that intent any such woman, 1 shall be",
punished with imprisonment of either description for a term which may extend to two,
"years, or with fine, or with both.",
COMMENT.—,
"Under section 498, IPC, 1860 enticing or taking away a married woman with criminal",
intent is an offence. Entering or taking away somebody's wife for the purpose other,
"than mentioned in section 498, IPC, 1860 does not constitute an offence. Therefore, in",
"order to bring home guilt of a person under section 498, IPC, 1860, the prosecution has",
to prove that a married woman was enticed or taken away with an intention that she,
might have illicit intercourse with any person.47.,
"Sections 361 and 366 may be compared with this section, which may come into",
"operation when the two former sections fail to apply, but only in respect of a married",
woman. This and the preceding sections are evidently intended for the protection of,
"husbands, who alone can institute prosecutions for offences under them.",
The gist of the offence under this section appears to be the deprivation of the husband,
of his custody and his proper control over his wife with the object of having illicit,
intercourse with her.48.,
[s 498.1] Ingredients.—,
The section requires three things:—,
1. Taking or enticing away or concealing or detaining the wife of another man from that,
man or from any person having the care of her on behalf of that man.,
"2. Such taking, enticing, concealing or detaining, must be with intent that she may have",
illicit intercourse with any person.,
3. Knowledge or reason to believe that the woman is the wife of another man.,
[s 498.2] Sections 366 and 498.—,
A comparison of the ingredients constituting an offence under sections 366 and 498,
"shows that though there are some ingredients which are common, but the ingredients",
for the offence under section 498 constitute of some of the very important particulars,
"which are not in an offence under section 366, IPC, 1860. The additional ingredients of",
"section 498, IPC, 1860 namely, (i) that the woman said to have been taken away is the",
"married wife of another man, and (ii) that the accused has taken her away with the",
knowledge that she is the wife of that person are not at all in the offence under section,
"366, IPC, 1860. Therefore, the offence under section 498 cannot be said to be a minor",
offence or an offence under section 366 within the meaning of the term used in section,
"222(2) of the Cr PC, 1973.49.",
"1. 'Detains with that intent any such woman'.—The word ""detains"" means ""keeps back"".",
"The keeping back need not necessarily be by physical force, it may be by persuasion or",
by allurement and blandishment. The use of the word requires that there should be,
something in the nature of control or influence which can properly be described as a,
keeping back of the woman. To constitute detention proof of some kind of persuasion,
is necessary. It cannot properly be said that a man detains a woman if she has no,
desire to leave and on the contrary wishes to stay with him.50. The Supreme Court has,
"held that the keeping back may be by force, but it need not be by force. It can be the",
"result of persuasion, allurement or blandishment, which may either have caused the",
"willingness of the woman, or may have encouraged, or co-operated with, her initial",
inclination to leave her husband.51.,
"47. Singana Naga Nooka Chakrarao v State of AP, 2007 Cr LJ 3466 .",
"48. Alamgir v State of Bihar, (1959) Pat 334 : AIR 1959 SC 436 [LNIND 1958 SC 145] : 1959 Cr LJ",
"527 : (1959) 2 SCA 116 [LNIND 1958 SC 145] . Natarajan v Ramanujam, 1977 Cr LJ 389 (Mad),",
the main ingredient is enticing away married woman from her husband. Criminal intent on the,
"part of the accused has to be proved. The consequence of not examining the material witness,",
"the wife, led to acquittal of accused. No interference.",
"49. Satya Narain v State of Bihar, 1985 Cr LJ 747 (Pat).",
"50. Prithi Missir v Harak Nath, (1937) 1 Cal 166 .",
"51. Alamgir, (1959) Pat 334 : AIR 1959 SC 436 [LNIND 1958 SC 145] .",
THE INDIAN PENAL CODE,
1.,
[CHAPTER XX-A OF CRUELTY BY HUSBAND OR RELATIVES OF,
HUSBAND,
[s 498A] Husband or relative of husband of a woman subjecting her to cruelty.,
"Whoever, being the husband or the relative of the husband of a woman, subjects such",
woman to cruelty shall be punished with imprisonment for a term which may extend,
to three years and shall also be liable to fine.,
"Explanation.—For the purpose of this section, ""cruelty"" means—",
(a) any wilful conduct which is of such a nature as is likely to drive the woman to,
"commit suicide or to cause grave injury or danger to life, limb or health",
(whether mental or physical) of the woman; or,
(b) harassment of the woman where such harassment is with a view to coercing,
her or any person related to her to meet any unlawful demand for any property,
or valuable security or is on account of failure by her or any person related to,
her to meet such demand.],
State Amendment,
"Andhra Pradesh.—In Andhra Pradesh, offence is compoundable.",
COMMENT.—,
"This section has been introduced in the Code by the Criminal Law (Amendment) Act,",
1983 (Act 46 of 1983) to combat the menace of dowry deaths. By the same Act section,
"113A has been added to the Indian Evidence Act, 1872 to raise a presumption",
regarding abetment of suicide by a married woman.,
[s 498A.1] Ingredients.—,
"Ingredients of 498A of the Indian Penal Code (IPC), 1860 are:",
a) The woman must be married;,
b) She must be subjected to cruelty or harassment; and,
c) Such cruelty or harassment must have been shown either by husband of the,
woman or by the relative of her husband.2.,
"If the validity of the marriage itself is under legal scrutiny, the demand of dowry in",
respect of an invalid marriage would be legally not recognisable.3.,
"Concept of cruelty under section 498A IPC, 1860 and its effect under section 306 IPC,",
1860 varies from individual to individual also depending upon the social and economic,
status to which such person belongs. The Supreme Court held that cruelty for the,
purpose of offence and the said Section need not be physical. Even mental torture or,
abnormal behaviour may amount to cruelty or harassment in a given case.4. Mental,
"cruelty, of course, varies from person to person, depending upon the intensity and the",
"degree of endurance, some may meet with courage and some others suffer in silence,",
to some it may be unbearable and a weak person may think of ending one's life.5.,
The usual and common domestic discord in any matrimonial home cannot amount to,
"'cruelty' within the meaning of section 498A of IPC, 1860.6. Assault on a woman",
offends her dignity. It is one thing to say that every wear and tear of married life need,
not lead to suicide and it is another thing to put it so crudely and suggest that one or,
two assaults on a woman is an accepted social norm. Judges have to be sensitive to,
women's problems. What effect it will have on a woman depends on facts and,
circumstances of each case. There cannot be any generalisation on this issue.7.,
In a case before the Supreme Court8. involving the death by burning of a newly married,
"woman, the circumstances did not establish either murder or an abetted suicide and",
"thus the in-laws escaped the jaws of sections 300 and 306, but they were caught in the",
web of this newly-enacted section for prevention of harassment for dowry. Not to,
"speak of the things they were persistently demanding from the girl's side, the fact that",
a large number of articles were taken back by her father after her death from her,
"matrimonial abode, showed that there was pressure being exerted on in-laws and",
continued to be exerted till death for more money and articles. The Supreme Court,
observed in another case that this section has given a new dimension to the concept of,
cruelty for the purposes of matrimonial remedies and that the type of conduct,
described here would be relevant for proving cruelty.9. It is no impediment to a,
conviction under the section that the accused has been acquitted of the larger offence,
of murder under section 302. Where the charge was that of murdering wife for dowry,
and no evidence was available except this that the accused projected the theory of,
intruders killing her (which the Court did not believe) and did not immediately made,
"police report or to get medical help for his injured wife, this was held to be not",
sufficient to convict him for murder. The harassment for dowry was established from,
his own conduct in deserting her and also through the mouth of the witnesses. That,
was held to be sufficient to convict him under section 498A.10.,
"Where after a spell of cruelty, the husband and wife reconciled and resumed joint life",
and it was found that the husband left the wife back with her parents for a short spell,
"and then took her back and within two days informed her parents of her death, the wife",
"made no complaint of cruelty, etc., during her short stay with parents, the section could",
not come into play because there was no complaint after reconciliation.11. The Court,
"also added that sections 498A and 304B create distinct offences. ""Cruelty"" is common",
element to both. A person charged under section 304B can be convicted under section,
498A without any charge under that section.,
A married woman committed suicide by burning herself after pouring kerosene. In her,
dying declaration she said that her husband used to beat her after taking liquor and he,
used to borrow money from the villagers for the purpose. The Court said that this,
amounted to cruelty within the meaning of the section making the accused liable to be,
"punished.12. When the accused mother-in-law, the husband and his brother harassed",
the married woman and did not permit her to go to her parents. The husband and his,
brother disposed her of by fire after pouring kerosene. They were punished under,
section 302. Their mother was punished under this section (section 498A).13.,
Consequences of cruelty which was likely to drive a woman to commit suicide or to,
"cause grave injury danger to life or limb or health, whether mental or physical, have to",
be shown for attracting the section.14.,
[s 498A.2] Mens rea.—,
The requirement of proving that soon before her death the woman was subjected to,
cruelty or harassment by her husband or any relation of her husband for or in,
connection with any demand of dowry clearly shows that the legislation has imbibed,
the necessary mens rea for the offence of dowry death.15.,
[s 498A.3] Actus reus.—,
The Supreme Court has observed that in-laws of a deceased cannot be roped in only on,
the ground of being the close relatives of the husband of the deceased. Some overt act,
must be attributed to them in the incident and the same should also be proved beyond,
reasonable doubt.16.,
[s 498A.4] Suicide note.—,
The suicide note of the deceased wife made serious castigation against her husband,
for being an addict to some kind of narcotic drug. Serious allegations were also made,
against the mother-in-law. Allegations against the accused sister-in-law were not grave.,
But in no case there was reference to any concrete instance which could be termed to,
"be cruelty. Hence, no case was made out against the accused persons.17.",
[s 498A.5] Constitutional validity of section 498A.—,
The husband and relatives of the husband of a married woman form a class apart by,
themselves and it amounts to reasonable classification especially when a married,
woman is treated with cruelty within the four walls of the house of her husband and,
"there is no likelihood of any evidence available. Consequently, this section cannot be",
said to be violative of Article 14 of the Constitution.18.,
The mere possibility of abuse of a provision of law does not per se invalidate a,
legislation. The plea that section 498-A has no legal or constitutional foundation was,
held to be not tenable.19. Mere possibility of abuse of power in a given case would not,
"make it objectionable, ultra vires or unconstitutional. In such case, 'action' and not the",
'section' may be vulnerable.20.,
Where the wife coming from respectable orthodox family was subjected by her,
"husband, who was of highly suspicious nature, to humiliation by demeaning and",
"insulting her, calling her a prostitute, denying her family life and comfort and not",
"permitting anybody to meet her, all this was held to be sufficient to justify the husband's",
conviction under the section.21. The Court said:22.,
The expression cruelty postulates such a treatment as to cause reasonable apprehension in,
the mind of the wife that her living with the husband will be harmful and injurious to her life.,
To decide the question of cruelty the relevant factors are the matrimonial relationship,
"between the husband and wife, their cultural and temperamental state of life, state of health",
and their inter-action in daily life.,
[s 498A.6] Cruelty by vexatious litigation.—,
"Where out of a sense of vindictiveness, the husband instituted vexatious litigation",
against his wife and she was feeling humiliated and tortured by reason of execution of,
"search warrants and seizure of personal property, it was held that the section was wide",
enough to encompass a cruelty committed through an abuse of the litigative process.,
[s 498A.7] Cruelty by deprivation and wasteful habits.—,
The husband disregarded his duty to provide his wife and infant child the elementary,
means of sustenance. He deliberately and irresponsibly squandered his earnings on,
gambling and other vices and thereby starved his wife and infant child to death. This,
was held to be amounting to cruelty under section 498A.23.,
"[s 498A.8] Calling wife ""barren woman"".—",
"It was alleged that, as the deceased did not beget children for a period of three years",
"after the marriage, accused harassed the deceased by calling her ""barren woman"". It",
"was held that mere commenting that deceased was not begetting children, dose not",
"amount to subjecting the deceased to cruelty within the meaning of section 498A IPC,",
1860.24.,
[s 498A.9] Cruelty by persistent demand.—,
Cruelty or harassment need not be physical. Mental torture may amount to cruelty in a,
"given situation. The bride, in this case, was repeatedly taunted, maltreated and mentally",
tortured right from the next day of marriage. There was a quarrel between her and the,
husband only a day before her death. This led the bride to commit suicide. Presumption,
"as to dowry death under section 113B, Indian Evidence Act, 1872 became applicable.",
There was no rebuttal from the side of the accused husband.25.,
[s 498A.10] Cognizance on Police Report.—,
"Section 198A of Code of Criminal procedure (Cr PC), 1973 permits a Court to take",
cognizance of offence punishable under section 498A upon a police report of facts,
which constitute offence. Explanation to section 2(d) makes it clear that a report made,
by a police officer after investigation of a non-cognizable offence is to be treated as a,
complaint and the officer by whom such a report is made is to be deemed to be the,
"complainant. Thus, if a complaint contains allegations about commission of offence",
"under section 498A of the IPC, 1860 which is a cognizable offence, apart from",
"allegations about the commission of offence under section 494 of the IPC, 1860 the",
Court can take cognizance thereof even on a police report. No fetters can be put on the,
police preventing them from investigating the complaint which alleges offence under,
"section 498A of the IPC, 1860 and also offence under section 494 of the IPC, 1860.26.",
[s 498A.11] Cruelty by extra-marital relations.—,
To the question whether 'extra-marital relationship' could be considered as 'cruelty',
"under section 498A IPC, 1860 had arisen, the Supreme Court has answered the",
question in negative. Mere fact that the husband has developed some intimacy with,
"another, during the subsistence of marriage and failed to discharge his marital",
"obligations, as such would not amount to ""cruelty"", but it must be of such a nature as is",
likely to drive the spouse to commit suicide to fall within the explanation to section,
"498A IPC, 1860.27. Courts should carefully assess the facts of each case before",
deciding whether the cruelty meted out to the victim which induces her to commit,
suicide. The accused continued his relation with another woman and his illicit relation,
with another woman would have definitely created the psychological imbalance to the,
deceased which led her to take the extreme step of committing suicide. The conviction,
"of accused under sections 498-A and 306, IPC was held proper.28. In Laxman Ram",
"Mane v State of Maharashtra,29. it was held that an illicit relationship of a married man",
with another woman would clearly amount to cruelty within the meaning of section,
498A. Even assuming for a moment that this did not amount to cruelty within the,
"meaning of section 498A, it could still be used as a piece of evidence of harassment",
and misbehaviour of the appellant towards the deceased. The act of the husband in,
"bringing a concubine to his house, living with her as husband and wife, and having",
"sexual relations in the presence of his wife, amounts to 'cruelty' within the meaning of",
"section 498A of IPC, 1860.30. Permitting the first wife to enter the house of deceased",
with new born child does not amount to a cruel act to the second wife as such act,
cannot amount to cruelty within the meaning of second limb of clause (a) of the,
"Explanation under section 498A, IPC, 1860.31.",
[s 498A.12] Harassment and bigamy.—,
The wife filed an FIR alleging harassment and bigamy by the accused husband. The,
fact was that the second marriage was performed by the accused husband after the,
first marriage was dissolved. The affidavit filed by the wife did not state that the divorce,
"decree had been either stayed or set aside. Thus, ingredients of the offence of bigamy",
were not made out. The affidavit was also silent about harassment for dowry demand.,
"It was held that the FIR was frivolous, vexatious, unwarranted and abuse of process.32.",
[s 498A.13] Harassment for non-dowry demand.—,
"Four years after the marriage, the wife was called upon to bring some money from her",
parents for sending her husband's younger brother abroad. It could not be termed as a,
"dowry demand, but because she was harassed for it and on account of this she",
"became compelled to end her life, it was held that an offence under section 498A was",
made out.33. Section 498A does not specifically speak of a dowry demand. It speaks,
only of unlawful demand for property and valuable articles.34.,
[s 498A.14] Cruelty by non-acceptance of baby girl.—,
The conduct of the accused husband and his father in not accepting the birth of the,
baby girl was held as amounting to cruelty.35.,
[s 498A.15] Demand of son in adoption.—,
The Supreme Court has held that the demand of a son in adoption did not amount to a,
dowry demand so as to attract the provisions of section 498A.36.,
[s 498A.16] Act of remaining silent.—,
The allegation was that accused Nos. 2 and 4 did not come forward to participate in,
the settlement of the dowry on the ground that they belonged to the groom's family and,
remained silent. The act of remaining silent with regard to the settlement of the dowry,
demand will not amount to cruelty within the meaning of either clause (a) or clause (b),
"of the Explanation of section 498A IPC, 1860.37.",
[s 498A.17] Cruelty by false attacks on chastity.—,
The father-in-law and the husband were shown to demand dowry though their demand,
was met by stepfather of the girl at the time of marriage. They also attacked her,
chastity when there was no reasonable ground for it. Homicidal death of the wife took,
place within five months of marriage. The Court said that all this amounted to cruelty,
within the meaning of section 498A.38.,
[s 498A.18] Taking away children.—,
The act of the husband in taking away the minor child without the consent of the wife,
was held as not amounting to cruelty for the purposes of section 498A.39.,
[s 498A.19] Outraging of modesty by father-in-law.—,
"Trying to outrage the modesty of a married woman in her matrimonial house, by her",
"father-in-law also amounts cruelty as defined under section 498A IPC, 1860.40.",
[s 498A.20] Demand for looking after aged in-laws.—,
A difference of opinion within family on everyday mundane matters would not fall,
within the category of cruelty. Merely because the appellants were of the opinion that,
"the deceased, as a good daughter-in-law, should look after them in old age could not be",
said to be an abetment of suicide.41.,
[s 498A.21] Mere demand of dowry an offence.—,
"Mere demand of dowry will not attract an offence under section 498-A IPC, 1860.42.",
"From a single instance of the accused stating that he had received meagre dowry, it",
could not be inferred that he demanded dowry and maltreated his deceased wife on,
that count.43. In the absence of any agreement or settlement for dowry at the time of,
"marriage, a demand constitutes no offence. The demand must come within the",
definition of dowry.44.,
"Mere harassment or mere demand for property, etc., is not cruelty. It is only where",
harassment is shown to have been caused for the purpose of coercing a woman to,
meet demands that it amounts to a cruelty which has been made punishable under the,
section.,
[s 498A.22] Presumption of cruel treatment.—,
The wife of the accused committed suicide by jumping into a well. Her father testified,
that the neighbours told him of the sounds of a quarrel going on in the family on the,
fateful night. He testified that she was ill-treated for dowry and for being issueless. She,
attempted to jump into the same well earlier also. The ill-treatment did not stop even,
after she bore two sons. The Court said that a presumption could be raised that the ill-,
treatment continued unabated till the last moment of her decision to put an end to her,
life.45.,
"The presumption of cruelty within the meaning of section 113A, Indian Evidence Act,",
1872 also arose making the husband guilty of abetment of suicide within the meaning,
of section 306 where the husband had illicit relationship with another woman and used,
to beat his wife making it a persistent cruelty within the meaning of Explanation (a) of,
section 498A.46.,
[s 498A.23] Harassment.—,
There should be sufficient nexus between incidents to constitute harassment. The,
"accused was convicted of harassment under the Protection from Harassment Act,",
1997 [English] section 2 following two incidents separated by a period of four months,
in which he first slapped his former girlfriend and later on threatened her companion.,
He appealed by way of case stated on the basis that there had to exist a sufficient,
"nexus between the incidents complained of so as to give rise to a ""course of conduct""",
for the purposes of section 7(3). His appeal was allowed. The Court said that whilst no,
"more than two incidents were needed to constitute harassment, the fewer the number",
"of incidents and the wider the time lapse, the less likely such a finding would be",
justified. On the facts of the instant case there was insufficient evidence upon which,
the finding of harassment could be proved.47.,
[s 498A.24] Every kind of harassment not covered.—,
It is not every harassment or every type of cruelty that would attract section 498A. The,
complainant has conclusively to establish that the beating and harassment in question,
was with a view to force her to commit suicide or to fulfil the illegal demand of dowry.,
"In this case, though there might have been a previous history of harassment for those",
"purposes, at the moment of the complaint those urges were not proved to be figuring in",
the harassment.48. Where the deceased was asked to part with her jewellery and,
valuables for the marriage of her sister-in-law but the matter was not pressed further,
"on her refusal and there was no harassment or coercion by her in-laws, it was held that",
it did not amount to cruelty.49.,
A husband who does not call his wife back to the matrimonial home does not thereby,
cause any harassment.50. Where the deceased wife was told not to attend kitchen as a,
"measure for prevention of wastage, this was held to be no cruelty.51.",
The remarks passed by the mother-in-law that the daughter-in-law was not beautiful,
were held to be not sufficient to drive anybody to suicide. There was no evidence of,
cruelty or deprivation.52. The mere statements in the dying declaration that she wanted,
"to live separately, her husband gave her a beating the previous day and her",
grandmother disliked her were held to be not sufficient to substantiate the prosecution,
case that cruel treatment was meted out to her so as to constitute an offence under,
section 498A.53.,
Where the deceased wife's annoyance was due to the fact that the children of a relative,
"were being looked after in her husband's home, the Court said that it did not amount to",
cruelty or harassment because of dowry demand.54.,
[s 498A.25] Kicking daughter-in-law.—,
A three-judge Bench of the Supreme Court by order dated 14 March 2013 set aside its,
"own judgment in Bhaskar Lal Sharma v Monica,55. which held that the action of a",
woman merely kicking her daughter-in-law or threatening her with divorce would not,
"come within the meaning of ""cruelty"" under section 498A of the IPC, 1860. The",
Supreme Court allowed the curative petition filed by the National Commission directed,
restoration of the special leave petition (SLP) filed by Bhaskar Lal Sharma and his wife,
for a fresh hearing.,
[s 498A.26] Wife's desire to stay separately.—,
"Howsoever strong the desire of wife might be of staying separately, and howsoever",
"genuine her grief would be for having been required to stay in a joint family, the same",
"cannot constitute as ""wilful conduct"" of the appellants which was likely to drive wife to",
commit suicide.56.,
[s 498A.27] Make section 498A compoundable.—,
Offence under section 498A is not compoundable except in the State of Andhra,
"Pradesh where by a State amendment, it has been made compoundable. In Ramgopal v",
"State of MP,57. the Supreme Court requested the Law Commission and the Government",
"of India to examine whether offence punishable under section 498A of the IPC, 1860",
could be made compoundable. The Commission has given a comprehensive report,
"(237th Report) under the title of ""Compounding of IPC Offences"" recommending that",
that the offence under section 498A should be made a compoundable offence with the,
permission of Court. But it has not been made compoundable yet.,
[s 498A.28] Complaint filed after institution of suit.—,
A complaint was lodged by the wife under the section after a divorce suit was filed by,
"her husband. In her written statement to the suit, the wife made no allegations of",
"cruelty or harassment. In the meantime, the divorce was decreed and her application",
"for reconciliation was rejected by the family Court, the complainant wife had also been",
"living with her mother for a long time. Thus, no case was made out and the husband",
was entitled to acquittal.58.,
Where the marriage was already 10 years old at the time of the incident of suicide by,
"taking poison and there was neither any record of cruelty or harassment, nor any sign",
"of forcible administration of poison, the conviction of the accused husband was held to",
be not proper.59.,
[s 498A.29] Past cruelty.—,
"The Supreme Court has given this observation that both section 498A, IPC, 1860 and",
"section 113A, Indian Evidence Act, 1872 include in their amplitude past events of",
"cruelty. The period of operation of section 113A, Indian Evidence Act, 1872 is seven",
years. The presumption of suicide by a married woman arises when it takes place,
within seven years from the date of marriage.,
[s 498A.30] Section 498A and 304B.—,
The two provisions are not mutually inclusive. They deal with different and distinct,
offences. Persons charged under section 304B but acquitted can be convicted under,
section 498A even in the absence of any charge.60. The deceased had been subjected,
to cruelty by her husband and mother-in-law over the demand of a Maruti Car as dowry,
and persistently pressed by them after about six months of the marriage and,
"continuously till her death. Accused was convicted under sections 498A and 304 IPC,",
1860.61.,
[s 498A.31] Sections 498A and 306.—,
Distinction between sections 306 IPC and section 498A IPC is that of intention. Under,
"the latter, cruelty committed by the husband of his relations drag the woman concerned",
"to commit suicide, while under the former provision suicide is abetted and intended.62.",
"Offences under sections 498A and 306 of IPC, 1860. Trial court acquitted of the",
"offence under section 498A IPC, 1860. It was argued that the acquittal of the accused",
"of the offence under section 498A IPC, 1860 has bearing on the offence under section",
"306 IPC, 1860. The Supreme Court held that having absolved the appellants of the",
"charge of cruelty, which is the most basic ingredient for the offence made out under",
"section 498A, the third ingredient for application of section 113A of Indian Evidence",
"Act, 1872 is missing, namely, that the relatives, i.e., the mother-in-law and father-in-law",
who are charged under section 306 had subjected the victim to cruelty.63.,
[s 498A.32] Jurisdiction.—,
"A wife, maltreated for dowry, was sent back to her father where she became ill because",
of shock and after effects of cruelty. The Court having jurisdiction at the place was held,
competent to entertain a complaint both under section 498A in respect of cruelty and,
"also under section 181(4) of Cr PC, 1973 in respect of misappropriation of",
"streedhan.64. In Dukhi Ram v State of UP,65. the Court observed that the scope of",
section 498A cannot be extended to co-villagers. Order summoning co-villagers for,
offence under section 498A amounts to abuse of process of Court. The order of the,
Magistrate was quashed.,
[s 498A.33] Territorial Jurisdiction.—,
Where the complaint by the aggrieved wife regarding ill-treatment by husband and in-,
laws was filed at a place where she was residing with her mother and the act,
"subjecting her to cruelty occurred at some other place, it was held that the Magistrate",
at that place had no territorial jurisdiction to take cognizance of the offence under,
section 498A. The plea that her husband and sister-in-law visited that place and,
subjected her to cruelty was not substantiated.66. In a prosecution for criminal breach,
"of trust and cruelty to wife, the facts were that the marriage had taken at one place",
where also all the items of dowry were handed over. Breach of trust and ill-treatment,
"were committed at the husband's place. Thus, the offence was committed beyond the",
territorial jurisdiction of the magistrate at the place of marriage. Still it was held that he,
had jurisdiction because a part of the cause of action had arisen at that place.67. In a,
"case, as a consequence of ill-treatment inflicted upon the complainant from time to",
"time and demand of dowry, she was thrown out of her matrimonial home at Delhi and",
as a result of that she was compelled to come and reside with her father at Bharatpur.,
It was held that the police station/Court situated at Bharatpur has also jurisdiction to,
inquire into or try the offence allegedly committed by the petitioners. Section 179 Cr,
"PC, 1973 makes it clear that if anything happened as a consequence of the offence, the",
same may be inquired into or tried by a Court within whose local jurisdiction such thing,
has been done or such consequence has ensued.68. The Supreme Court in Sunita,
"Kumari Kashyap v State of Bihar,69. with almost similar set of facts came to a",
conclusion that the Court situated at Gaya also has jurisdiction to proceed with the,
criminal proceedings initiated on behalf of the complainant although the ill treatment,
upon the complainant in connection with demand of dowry was mainly inflicted at her,
matrimonial home situated at Ranchi because as a result of continuous torture and,
"unbearable treatment of her husband and in-laws the complainant had no other option,",
but to come at her parental home situated at Gaya. The Supreme Court for arriving,
such a conclusion relied upon the case of Sujata Mukherjee v Prashant Kumar,
"Mukherjee,70. and State of MP v Suresh Kaushal,71. but distinguished these cases being",
based on different set of facts.,
[s 498A.34] Suicide by mistress.—,
If the cruelty or harassment of the kind described in the Act is meted out to a mistress,
"which leads her to commit suicide, the section would cover her case also.72.",
[s 498A.35] Retrospective Effect of Section 498A.—,
A dowry harassment which had ended in March 1983 by the husband deserting his wife,
before the new provision came into force in 1983 was held to be not covered by it. This,
provision does not have retrospective effect.73. Where the relationship of marriage is,
"still continuing, the events of cruelty taking place prior to the amendment can be taken",
into account. That does not have the effect of giving a retrospective operation to the,
provision.74.,
[s 498A.36] Compromise.—,
Where the wife had condoned the matrimonial cruelty of which she was the victim and,
"had resumed consortium with her husband, the Court found no obstruction in the",
"provisions of the section in permitting them to compound the complaint and, therefore,",
"ordered accordingly.75. In D Jayalakshmi v State of MP,76. it was held that in a",
complaint under section 498A a compromise between husband and wife was,
permissible even though the offence is non-compoundable. It added that in exceptional,
circumstances only the High Court can permit compounding of a non-compoundable,
offence under its inherent powers. The offence under the section cannot be,
compounded by invoking inherent powers and by praying for quashing of proceedings,
on the ground of amicable settlement. The remedy of the parties is to take recourse to,
"sections 321 or 257, Cr PC, 1973 and seek withdrawal of the case.77. The offence",
cannot be compounded on the basis of consent divorce under section 13-B of the,
"Hindu Marriage Act, 1955. The proceedings were, however, quashed under section 482,",
"Cr PC, 1973 to prevent abuse of judicial process.78. During the pendency of the",
"prosecution, the husband and wife sorted out their differences and obtained a consent",
divorce as per their compromise. The Court said that in the light of facts as they,
"developed, the ends of justice would be served by reducing the term of imprisonment",
to the period already undergone.79.,
Compromise should be accepted as a basis for withdrawal or quashing of complaint at,
the instance of the complainant.80.,
[s 498A.37] Explanation.—,
"Clause (a).—In RP Bidlan v State of Maharashtra,81. it was held that under section 498A,",
"Explanation (a), for proof of cruelty it is necessary to show a reasonable nexus",
between cruelty and suicide. Mere proof of cruelty or suicide is not enough. There is no,
"vagueness or obscurity about the meaning of the word ""cruelty"" as spelt out in clauses",
(a) and (b) of the Explanations. The definition sub-serves the object sought to be,
achieved.82.,
[s 498A.38] Meaning of the term 'relative of the husband'—whether include a 'girlfriend',
or 'concubine'?.—,
An offence in terms of section 498A is committed by the persons specified therein.,
They have to be the 'husband' or his 'relative'. Either the husband of the woman or his,
relative must be subjected to her to cruelty within the aforementioned provision. In the,
"absence of any statutory definition, the term 'relative' must be assigned a meaning as",
"is commonly understood. Ordinarily it would include father, mother, husband or wife,",
"son, daughter, brother, sister, nephew or niece, grandson or granddaughter of an",
individual or the spouse of any person. The meaning of the word 'relative' would,
"depend upon the nature of the statute. It principally includes a person related by blood,",
marriage or adoption. By no stretch of imagination a girlfriend or even a concubine in,
an etymological sense would be a 'relative'. The word 'relative' brings within its purview,
a status. Such a status must be conferred by either blood or marriage or adoption. If no,
"marriage has taken place, the question of one being relative of another would not",
arise.83. A complaint was filed against the husband and his relatives because of,
demand for dowry. Shia law was applicable to the parties. The husband had divorced,
"the complaining wife by ""talak"". Under the Shia law there is prohibition on marrying the",
"woman whom one had earlier divorced. Thus, even if they were living together, they",
could not be called husband and wife. Section 498A was not applicable. The complaint,
was liable to be dismissed.84.,
"[s 498A.39] Is Section 498A applicable to cruelty against ""legally wedded wife"" only?.",
—,
A person who enters into marital arrangement cannot be allowed to take shelter behind,
the smoke screen of contention that since there was no valid marriage the question of,
"dowry does not arise. The word ""husband"" would apply to a person who enters into",
marital relationship and under the colour of such proclaimed or feigned status of,
husband subjects the woman concerned to cruelty or coerces her in any manner or for,
"any purposes enumerated in sections 304B and 498A, whatever be the legitimacy of",
the marriage itself. A person contracting second marriage during the subsistence of,
the earlier marriage can be charged under sections 304B and 498A. The Court pressed,
into service the Heyden's rule of construction which means purposive construction and,
mischief rule.85. Section 498A of the IPC refers to word 'woman' and not to 'wife' and by,
the said section protection was contemplated to married woman and not to the legally,
wedded wife only. Where accused and deceased were residing together and the,
evidence proved that marriage of accused and deceased took place by 'sulagna,
"procedure', the contention of the accused that deceased was not his legally wedded",
wife as there was no evidence of valid marriage between them to attract the provisions,
"of section 498A, cannot be accepted.86.",
[s 498A.40] Explanation.—Clause (b).—,
Where the deceased bride was subjected to cruelty and harassment and demand of,
"dowry and she was burnt to death within two years of her marriage, her earlier",
statements about her state of affairs to her father and neighbours and her sister were,
held to be admissible under clause (b) of the Explanation to section 498A and,
conviction of the accused under section 498A was held to be proper.87.,
The basic ingredients of section 498A are cruelty and harassment. The Supreme Court,
"further held that in Explanation II, which relates to harassment, there is absence of the",
requirement of physical injury but it includes coercive harassment for demand of,
dowry. It deals with the patent or latent acts of the husband or his family members.88.,
In a case the Supreme Court held that:,
unless the statement of a dead person would fall within the purview of s. 32(1) of the Indian,
Evidence Act there is no other provision under which the same can be admitted in evidence.,
In order to make the statement of a dead person admissible in law (written or verbal) the,
statement must be as to the cause of her death or as to any of the circumstance of the,
"transactions which resulted in her death, in cases in which the cause of death comes into",
question. By no stretch of imagination can the statements of deceased contained in the two,
letters and those quoted by the witnesses be connected with any circumstance of the,
"transaction which resulted in her death. Even that apart, when dealing with an offence u/s.",
498A IPC disjuncted from the offence u/s. 306 IPC the question of her death is not an issue,
for consideration and on that premise also s. 32(1) of the Evidence Act will stand at bay so,
far as these materials are concerned.89.,
[s 498A.41] Punishment.—,
The accused contracted second marriage. He maltreated the first wife and denied her,
"diet, thus, subjecting her to mental and physical cruelty of extreme level and leading her",
to suicide. He was not entitled to any sympathy. He was sentenced to undergo two,
years RI for offence under section 498A and five years under section 306 and also,
fine.90.,
The wife of the accused died of burns. Her letters indicated anguish about various,
incidents and methods of harassment practised upon her. Filthiest language was used,
in expressing the demand for dowry. There was oral evidence of the prosecution,
witness to that effect. This section does not require harassment soon before death.,
The Court said that the offence under the section was made out. The sentence of,
imprisonment of three years was reduced to three months in the interest of the children,
and their safety in the society.91.,
[s 498A.42] Plea of leniency.—,
"Where there was a history of the wife being continuously subjected to harassment,",
assault and torture to the point of leaving no option to committing suicide and the,
"accused-husband was a police officer and an educated person, it was held that he",
could not be allowed to escape jail sentence.92. The deceased-wife within four months,
of her marriage took the extreme step of putting an end of her life and committed,
suicide. The court held that it was not a fit case for reducing the quantum of sentence,
of the accused as showing any leniency would be a misplaced one.93.,
"In the context of simple imprisonment of six months, it was pleaded before the",
Supreme Court that the appellant and the victim had since remarried and were living,
"happily in their respective families, the Court reduced imprisonment to the period of",
two months already undergone.94.,
[s 498A.43] Misuse of section 498-A.—,
The section was inserted in the statute with the laudable object of punishing cruelty at,
the hands of husband or his relatives against a wife particularly when such cruelty had,
potential to result in suicide or murder of a woman. The expression 'cruelty' therein,
covers conduct which may drive the women to commit suicide or cause grave injury,
(mental or physical) or danger to life or harassment with a view to coerce her to meet,
unlawful demand. The Supreme Court observed that it is a matter of serious concern,
that large number of cases continue to be filed under this section alleging harassment,
of married women. Most of such complaints are filed in the heat of the moment over,
trivial issues. Many of such complaints are not bona fide. At the time of filing of the,
"complaint, implications and consequences are not visualised. But at times such",
complaints lead to uncalled for harassment not only to the accused but also to the,
complainant.95. The provision should not be allowed to be used as a device for,
achieving oblique motives.96.,
[s 498A.44] Misuse of provisions to be prevented.—,
The Supreme Court has observed that the section was introduced with the avowed,
object of combating the menace of dowry deaths and harassment of a woman at the,
hands of her in-laws. But the provision should not be allowed to be used as a device for,
achieving oblique motives.97.,
[s 498A.45] CASES.—,
Where there is ample evidence on record to suggest that the deceased had been,
"suffering from psychosis/mental disorder, it was held not safe to convict the accused",
"under sections 306 and 498A IPC, 1860.98. Where the suicide note exonerated the",
"husband and his relatives, accused cannot be convicted under section 498A.99. Where",
mother of deceased had admitted in her evidence that there was no demand of dowry,
"had been made by mother-in-law of the deceased, she is entitled to benefit of",
doubt.100. Where the accused mother-in-law was residing in a separate residence far,
away from the place where deceased with her husband was residing and the evidence,
of independent witness proved that parents of deceased's husband had never visited,
"their place during their stay in the said house, accused is entitled to benefit of doubt.",
Where a husband had strangulated his second wife to death within a short span of time,
immediately after her marriage and the cruelty and harassment on the part of the,
"husband was proved from the evidence of the witnesses, the conviction of the husband",
under section 498A was confirmed.101.,
"A harassment shown to have taken place eight months before the suicide, was held to",
"be not coming within the scope of the words ""soon before"". The conviction under",
section 304B was set aside. The evidence showed that cruelty was there. The accused,
persons were not able to explain why the deceased wife committed suicide. The,
"conviction and sentence under section 306 (abetment of suicide), section 498A and",
"section 4 of the Dowry Prohibition Act, 1961 was maintained.102.",
[s 498A.46] Limitation.—,
For the offence of cruelty under section 498A cognizance can be taken even after the,
"expiry of the period of limitation by virtue of the provisions of section 473, Cr PC, 1973",
since the offence is of continuing nature. There was nothing on record to show that,
more than three years ago prior to the filing of the complaint the accused had returned,
"the dowry items demanded by the complainant. The complaint under section 406 IPC,",
"1860 was not time-barred. The offence under section 405, IPC, 1860 was committed as",
and when the accused refused to return the dowry items on demand and,
misappropriate them.103.,
A complaint under the section was dismissed by the trial Court on the ground that it,
was belated by two years. On the same ground the High Court declined leave to appeal,
against acquittal. The Supreme Court held that this was not proper. The section was,
brought in to protect woman against torture. The law of limitation must not be applied,
with such rigidity as to non-suit an aggrieved wife.104.,
A complaint alleged cruelty by the husband and his relatives. The question was that of,
limitation for filing a complaint. The Court said that cruelty is a continuing offence.,
With every act of cruelty a new period of limitation takes a start. The wife was harassed,
"and sent out of the matrimonial home. A complaint, even if time-barred, could be",
entertained if otherwise it would give an unfair advantage to the accused person or,
result in miscarriage of justice.105.,
[s 498A.47] A re-look at the provision.—Supreme Court direction and,
recommendations of Law commission of India.—,
"In Preeti Gupta v State of Jharkhand,106. the Supreme Court held that a serious relook of",
the entire provision is warranted by the legislation. It is also a matter of common,
knowledge that exaggerated versions of the incident are reflected in a large number of,
complaints. The tendency of over implication is also reflected in a very large number of,
cases. The criminal trials lead to immense sufferings for all concerned. Even ultimate,
acquittal in the trial may also not be able to wipe out the deep scars of suffering of,
"ignominy. Unfortunately, a large number of these complaints have not only flooded the",
"Courts but also have led to enormous social unrest affecting peace, harmony and",
happiness of the society. It is high time that the legislature must take into,
consideration the pragmatic realities and make suitable changes in the existing law. It,
is imperative for the legislature to take into consideration the informed public opinion,
and the pragmatic realities in consideration and make necessary changes in the,
"relevant provisions of law. Pursuant to the direction of the Supreme Court, Law",
Commission of India in its 243rd Report gave inter alia the following suggestions:,
"(a) The offence under section 498A shall be made compoundable, with the",
permission of Court and subject to cooling off period of three months,
"(b) The offence should remain non-bailable. However, the safeguard against",
arbitrary and unwarranted arrests lies in strictly observing the letter and spirit of,
"the conditions laid down in sections 41 and 41A of Cr PC, 1973 relating to",
power of arrest and sensitising the Police on the modalities to be observed in,
cases of this nature,
(c) There should be a monitoring mechanism in the Police Dept. to keep track of,
section 498A cases and the observance of guidelines,
(d) the need for expeditious disposal of cases under section 498A should be given,
special attention by the prosecution and Judiciary.107.,
"[s 498A.48] Protection of Women from Domestic Violence Act, 2005.—",
"The Protection of Women from Domestic Violence Act, 2005 was enacted with a view",
to provide for more effective protection of rights of women who are victims of violence,
of any kind occurring within the family. Those rights are essentially of civil nature with a,
mix of penal provisions. Section 3 of the Act defines domestic violence in very wide,
terms. It encompasses the situations set out in the definition of 'cruelty' under section,
498A. The Act has devised an elaborate machinery to safeguard the interests of,
women subjected to domestic violence. The Act enjoins the appointment of Protection,
Officers who will be under the control and supervision of a Judicial Magistrate of First,
"Class. The said officer shall send a domestic incident report to the Magistrate, the",
police station and service providers. The Protection Officers are required to effectively,
"assist and guide the complainant victim and provide shelter, medical facilities, legal aid,",
"etc., and also act on her behalf to present an application to the Magistrate for one or",
more reliefs under the Act. The Magistrate is required to hear the application ordinarily,
within three days from the date of its receipt. The Magistrate may at any stage of the,
proceedings direct the respondent and/or the aggrieved person to undergo counselling,
with a service provider. 'Service Providers' are those who conform to the requirements,
of section 10 of the Act. The Magistrate can also secure the services of a welfare,
"expert preferably a woman for the purpose of assisting him. Under section 18, the",
"Magistrate, after giving an opportunity of hearing to the Respondent and on being",
"prima facie satisfied that domestic violence has taken place or is likely to take place, is",
empowered to pass a protection order prohibiting the Respondent from committing,
any act of domestic violence and/or aiding or abetting all acts of domestic violence.,
There are other powers vested in the Magistrate including granting residence orders,
and monetary reliefs. Section 23 further empowers the Magistrate to pass such interim,
order as he deems just and proper including an ex parte order. The breach of protection,
order by the respondent is regarded as an offence which is cognizable and non-bailable,
and punishable with imprisonment extending to one year (vide section 31). By the same,
"section, the Magistrate is also empowered to frame charges under section 498A of IPC,",
"1860 and/or Dowry Prohibition Act, 1961. The provisions of the Act are supplemental",
to the provisions of any other law in force. The right to file a complaint under section,
498A is specifically preserved under section 5 of the Act. An interplay of the provisions,
of this Act and the proceedings under section 498A assumes some relevance on two,
aspects: (1) Seeking Magistrate's expeditious intervention by way of passing a,
protective interim order to prevent secondary victimisation of a complainant who has,
lodged FIR under section 498A. (2) Paving the way for counselling process under the,
supervision of Magistrate at the earliest opportunity.108.,
"1. Chapter XXA (containing section 498A) ins. by Act 46 of 1983, section 2 (w.e.f. 25 December",
1983).,
"2. Suvetha v State, (2009) 6 SCC 757 [LNIND 2009 SC 1156] : 2009 Cr LJ 2974 .",
"3. Reema Aggarwal v Anupam, (2004) 3 SCC 199 [LNIND 2004 SC 1499] : AIR 2004 SC 1418",
[LNIND 2004 SC 1499] .,
"4. Gananath Pattnaik v State of Orissa, (2002) 2 SCC 619 [LNIND 2002 SC 100] .",
"5. Pinakin Mahipatray Rawal v State of Gujarat, 2013 (3) Mad LJ (Crl) 700 : 2013 AIR (SCW)",
5219.,
"6. Rosamma Kurian v State of Kerala, 2014 Cr LJ 2666 (Ker) : 2014 (2) KHC 64 .",
"7. Vajresh Venkatray Anvekar v State of Karnataka, AIR 2013 SC 329 [LNIND 2013 SC 4] : (2013)",
3 SCC 462 [LNIND 2013 SC 4] .,
"8. Wazir Chand v State of Haryana, AIR 1989 SC 378 [LNIND 1988 SC 569] : 1989 Cr LJ 809 :",
"(1989) 1 SCC 244 [LNIND 1988 SC 569] ; U Suvetha v State, (2009) 6 SCC 757 [LNIND 2009 SC",
"1156] : 2009 Cr LJ 2974 , ingredients re-enumerated by the Supreme Court. Bhaskar Lal Sharma",
"v Monica, (2009) 10 SCC 604 [LNIND 2009 SC 1432] : (2009) 161 DLT 739 , misuse of anti-dowry",
law not to be allowed. A girlfriend of the husband or a concubine being in the category of,
"relatives of the husband are not covered by section 498-A. Narendra v State of Karnataka, (2009)",
6 SCC 61 [LNIND 2009 SC 1112] : (2009) 2 SCC (Cr) 929 : AIR 2009 SC 1881 [LNIND 2009 SC,
"1112] , death of wife in bed room due to compression of neck, husband's alibi plea found to be",
"false, no two opinions, conviction. Krishna Ghose v State of WB, (2009) 12 SCC 413 [LNIND 2009",
"SC 724] : AIR 2009 SC 2279 [LNIND 2009 SC 724] , death due to cruelty by husband and family",
"members in the matrimonial home, alibi false, conviction.",
"9. Shobha Rani v Madhukar Reddi, (1988) 1 SCC 105 [LNIND 1987 SC 757] : AIR 1988 SC 121",
"[LNIND 1987 SC 757] : (1988) 1 AIR 169 : 1988 BLJR 138 . See also Akula Ravinder v State of AP,",
AIR 1991 SC 1142 . For a comparative account of this section with section 304B see notes,
"under section 304B and the decision of the Supreme Court in Shanti v State of Haryana, AIR",
1991 SC 1226 [LNIND 1990 SC 696] . For another proceeding arising out of harassment of wife,
and acceptance of compromise by the Supreme Court on payment of compensation to the wife,
"to end all proceedings, see Mukund Martand Chitnis v Madhuri Mukund Chitnis, 1991 Supp (2)",
"SCC 359 . See also Suman v State of Rajasthan, (2010) 1 SCC (Cr) 770 : (2010) 1 SCC 250",
[LNIND 2009 SC 1991] : AIR 2010 SC 518 [LNIND 2009 SC 1991] .,
"10. Chanda v State of AP, 1996 Cr LJ 2670 (AP). RI for three years and fine of Rs. 5,000. Chandra",
"Prakash v State, 1996 Cr LJ 3443 (Del) a proceeding was not allowed to be quashed only on the",
ground that allegations in detail of dowry demand and cruelty were not made in a pending,
"divorce proceedings between the parties. Noorjahan v State, (2008) 11 SCC 55 [LNIND 2008 SC",
"950] : AIR 2008 SC 2131 [LNIND 2008 SC 950] , object restated, crimes against women and",
children. There was no proof in this case of any demand for dowry.,
"11. Keshab Chandra Panda v State of Orissa, (1995) 1 Cr LJ 174 (Ori). Where the mother-in-law",
"was convicted for the lesser offence under s 498A, it was an automatic acquittal from the",
"serious offence under section 304-B, no appeal by State, High Court could not convict; Prakash",
"Chander v State, (1995) 1 Cr LJ 368 (Del). State of Kerala v Rajayyan, (1995) 1 Cr LJ 989 (Ker)",
"death by falling in well, proof of dowry-related cruelty, conviction. Deepak v State of Maharashtra,",
"(1995) 2 Cr LJ 2219 (Bom) wife killed by strangulation, defence of injury by a falling object",
"unnatural, conviction held proper. Gondhan Ram v State of Rajasthan, (1995) 1 Cr LJ 273 (Raj),",
"married woman dying of spray poison which she consumed, within seven years, evidence of",
"torture, conviction of husband alone. Jai Ram v State of Rajasthan, (1995) 1 Cr LJ 1020 (Raj)",
conviction of husband on evidence which was rejected in reference to all others was held to be,
"not proper. Chandrabhushan v State of Maharashtra, (1995) 1 Cr LJ 101 (Bom) conviction of",
"husband for leading wife to suicide by mental torture for dowry, but others not convicted",
"because the couple was living separately. Gajanansingh v State of Maharashtra, 1996 Cr LJ 2921",
"(Bom) no proof that the husband caused death, acquittal. Pammi Bai v State of MP, 1996 Cr LJ",
"2796 (MP), death by burning, the conduct of the dying woman immediately after the incident not",
"pointing to the husband setting her on fire, dying declaration doubtful and suspicious, acquittal.",
"12. Pachipala Laxmaiah v State of AP, 2001 Cr LJ 4063 (AP); another similar case Hariappari v",
"State of Karnataka, 2001 Cr LJ 4286 (Kant), burnt by the husband, conviction. Dasrath Sao v",
"State of Bihar, 2001 Cr LJ 4336 (Jhar) suicide by hanging, no proof of dowry demand or of",
"cruelty or abetment, acquittal. Shaik China Buda v State of AP, 2002 Cr LJ 526 , no proof of",
"cruelty, acquittal of husband.",
"13. Kodadi Srinivasa Lingam v State of AP, 2001 Cr LJ 602 (AP). Bammidi Rajamallu v State of",
"AP, 2001 Cr LJ 1319 (AP), drinking husband, beating wife and consistently abusing her, cruelty",
"under the section. Vanamala Amaranadh v State of AP, 2001 4498, dying declaration contained",
"statements of cruelty, husband convicted. State of Haryana v Jai Prakash, 2000 Cr LJ 4995 (2) :",
"(2000) 7 JT 404 (SC), no proper evidence, acquittal, appeal by State, copy of the evidence of the",
"father and brother of the deceased not produced, acquittal not interfered with. Mangal Ram v",
"State of MP, 1999 Cr LJ 4342 (MP), suicidal death of married woman within seven years, there",
was harassment for four tolas of gold and the demand being not met she was beaten up and,
"driven out. Offence under the section made out. Paparambaka Rosamma v State of AP, 1989 Cr",
"LJ 4321 : AIR 1999 SC 3455 , a mere statement in the dying declaration that she wanted to live",
separately from her in-laws and that they did not like her was held to be not sufficient to sustain,
a charge under this section.,
"14. Noorjahan v State, (2008) 11 SCC 55 [LNIND 2008 SC 950] : AIR 2008 SC 2131 [LNIND 2008",
"SC 950] . Ran Singh v State of Haryana, (2008) 4 SCC 70 [LNIND 2008 SC 204] : AIR 2008 SC",
"1994 [LNIND 2008 SC 969] : 2008 Cr LJ 1941 , findings of the trial judge disapproved by the High",
Court on presumptive basis. The Supreme Court restored the order of the trial judge. There was,
"no proof. B Venkat Swamy v Vijaya Nehru, (2008) 10 SCC 260 [LNIND 2008 SC 1682] , guilt not",
"proved by circumstantial evidence, the deceased was found hanging in a room which was",
bolted from inside.,
"15. Krishan Lal v UOI, 1994 Cr LJ 2472 (P&H).",
"16. Kans Raj v State of Punjab, AIR 2000 SC 2324 [LNIND 2000 SC 735] : 2000 Cr LJ 2993 . See",
"also Ram Saran Varshney v State of UP, 2016 Cr LJ 1251 : 2016 (3) SCJ 39 .",
"17. Raj Rani v State (Delhi) Admn, AIR 2000 SC 3559 : 2000 Cr LJ 4672 . See also Satish Shetty v",
"State of Karnataka, 2016 Cr LJ 3147 : 2016 (6) SCJ 14 .",
"18. Krishan Lal v UOI, 1994 Cr LJ 3472 (P&H).",
"19. Sushil Kumar Sharma v UOI, 2005 Cr LJ 3439 : AIR 2005 SC 3100 [LNIND 2005 SC 1208] :",
(2005) 6 SCC 281 [LNIND 2005 SC 1208] . The court explained the distinction between sections,
"306 and 498-A, (cruelty and abetment of suicide) by saying that the difference is that of",
intention.,
"20. Satish Kumar Batra v State of Haryana, AIR 2009 SC 2180 [LNIND 2009 SC 754] : (2009) 12",
SCC 191 .,
"21. Sarojakshan v State of Maharashtra, 1995 Cr LJ 340 (Bom).",
"22. At p 341. State of Karnataka v HS Srinivasa, 1996 Cr LJ 3103 (Kant) acquittal because of no",
"proof. Balkrishna Pandurang Moghe v State of Maharashtra, 1992 Cr LJ 4496 (Bom), husband",
and his relatives treated as a class apart from other offenders with the object of dealing,
effectively with cases of cruelty by in-laws to married women. Such classification does not,
result in invidious discrimination violative of Article 14 of the Constitution.,
"23. State of Karnataka v Moorthy, 2002 Cr LJ 1683 (Kant); State of Maharashtra v Ashok Narayan,",
"2000 Cr LJ 4993 : (2000) 9 SCC 257 [LNIND 2000 SC 413] (SC), a letter of the deceased wife",
was produced in evidence by her brother but it did not show any demand nor mentioned any,
cruelty. The oral testimony of the brother was not considered to be sufficient.,
"24. State of AP v Kalidindi Sahadevudu, 2012 Cr LJ 2302 (AP).",
"25. Pawan Kumar v State of Haryana, AIR 1998 SC 958 [LNIND 1998 SC 176] : 1998 Cr LJ 1144",
"(SC); Mangal Ram v State of MP, 1999 Cr LJ 4342 (MP), persistent demand for dowry, death due",
"to burn injuries within seven years, conviction. Section 304B was not attracted because the",
"""soon before"" requirement was not satisfied.",
"26. Ushaben v Kishorbhai Chunilal Talpada, (2012) 6 SCC 353 [LNINDU 2012 SC 25] : 2012 Cr LJ",
2234 .,
"27. Pinakin Mahipatray Rawal v State of Gujarat, 2013 (3) Mad LJ (Crl) 700 : 2013 AIR (SCW)",
5219.,
"28. Siddaling v State, AIR 2018 SC 3829 [LNIND 2018 SC 355] .",
"29. Laxman Ram Mane v State of Maharashtra, 2010 (13) SCC 125 : (2011) 1 SCC (Cr) 782.",
"30. Chami v State, 2013 Cr LJ 3441 ; Suman v Puran Chand, 2013 Cr LJ 3703 (Raj). See also",
"State of HP v Pawan Kumar, 2000 Cr LJ 4889 (HP).",
"31. Kantilal Martaji Pandor v State of Gujarat, 2013 Cr LJ 3866 (SC).",
"32. Pashaura Singh v State of Punjab, 2010 Cr LJ 875 : AIR 2010 SC 922 [LNIND 2009 SC 1988] .",
"33. State of Punjab v Dal Jit Singh, 1999 Cr LJ 2723 (P&H).",
"34. Shivanand Mallappa Koti v State of Karnataka, (2007) 13 SCC 68 [LNIND 2007 SC 778] : AIR",
"2007 SC 2314 [LNIND 2007 SC 778] . See also M Sirinivaslu v State of AP, (2007) 12 SCC 443",
"[LNIND 2007 SC 1047] : AIR 2007 SC 3146 [LNIND 2007 SC 1047] ; Vipin Jaiswal v State, AIR",
2013 SC 1567 [LNIND 2013 SC 205] : (2013) 3 SCC 684 [LNIND 2013 SC 205] ; Modinsab,
"Kasimsab Kanchagar v State of Karnataka, 2013 Cr LJ 2056 : AIR 2013 SC 1504 [LNIND 2013 SC",
1276] : (2013) 4 SCC 551 [LNIND 2013 SC 1276] .,
"35. State of Karnataka v Balappa, 1999 Cr LJ 3064 (Kant).",
"36. Bhaskar Ramappa Madar v State of Karnataka, (2009) 11 SCC 690 [LNIND 2009 SC 723] :",
2009 Cr LJ 2422 .,
"37. Bharat Bhushan v State, 2013 (4) Scale 524 [LNIND 2013 SC 199] .",
"38. State of Karnataka v KS Manjunathchary, 1999 Cr LJ 3949 (Kant), father-in-laws' conviction",
reduced from three to two years. Fine money was enhanced and directed to be paid to the father,
of the deceased.,
"39. Sumangala L Hegde v Laxminarayana Anant Hegde, 2003 Cr LJ 1418 (Kant). The court noted",
"the ruling in Ravindra Pyarelal Bidlan v State of Maharashtra, 1993 Cr LJ 3019 (Bom) to the effect",
"that a cruelty is not mere harassment or mere demand for property, etc. There must be a",
reasonable nexus between cruelty and suicide for proof of cruelty and also the ruling of the,
"Allahabad High Court in Vijay Kumar Sharma v State of UP, (1991) 1 crimes 298 (All), wherein",
also a minor child was taken away by the husband and his relatives from the custody of the,
mother in order to coerce her to meet their dowry demand.,
"40. Manoj Kumar v State of HP, 2016 Cr LJ 5015 (MP).",
"41. Nachhatar Singh v State of Punjab, 2011 Cr LJ 2292 : (2011) 11 SCC 542 [LNINDORD 2011",
SC 269] .,
"42. Amar Singh v State of Rajasthan, AIR 2010 SC 3391 [LNIND 2010 SC 701] : (2010) 3 SCC (Cr)",
"1130; Rajesh Gupta v State, 2011 Cr LJ 3506 (AP).",
"43. Prem Dass v State of HP, 1996 Cr LJ 951 (HP). Ashok v State, AIR 2000 SC 3444 [LNIND",
"2000 SC 597] : 2000 Cr LJ 2988 , evidence to the effect that the husband and mother-in-law",
"were regularly beating her for not getting scooter, there were marks of injuries on her body.",
Conviction under the section. The brother-in-law was given the benefit of doubt because there,
"was no evidence of his role. State of Maharashtra v Ashok Narayan, AIR 2000 SC 3568 [LNIND",
2000 SC 413] : 2000 Cr LJ 4993 there was no assertion in her letters to her brother that the,
husband was making any demand or assaulted her or treated her with cruelty or torture.,
Conviction could not be maintained on the oral testimony of her brother. State of Karnataka v,
"Shivaraj, 2000 Cr LJ 2741 (Kant) second wife, death of, presumption of validity of marriage",
"unless the contrary is shown, allegations of torture and cruelty not made out.",
"44. Ramesh Chand v State of UP, 1992 Cr LJ 1444 (All); Pyare Lal v State of Haryana, AIR 1999",
SC 1563 .,
"45. Diwan Singh v State of Uttarakhand, 2016 Cr LJ 1258 (Utr) : 2016 (93) ALLCC 861.",
"46. Anoop Kumar v State of MP, 1999 Cr LJ 2938 (MP).",
"47. Lau v DPP, (2000) 1 FLR 799 (QBD). State of AP v Madhusudhan Rao, (2008) 15 SCC 582",
"[LNIND 2008 SC 2124] ; Hazarilal v State of MP, (2009) 13 SCC 783 [LNIND 2007 SC 805] ,",
harassment not proved.,
"48. Sarla Prabhakar Waghmare v State of Maharashtra, 1990 Cr LJ 407 (Bom). Joytilal",
"Chakraborty v Dipak Dutta, (1995) 1 Cr LJ 930 (Cal) no complaint by the woman about torture",
"during her life-time, other evidence was also not reliable, complaint rejected. State of Haryana v",
"Rajinder Singh, 1996 Cr LJ 1875 (SC), offence not proved, acquittal proper.",
"49. Tapan Pal v State of WB, 1992 Cr LJ 1017 (Cal).",
"50. Tasrem Singh v Amrit Kaur, 1995 Cr LJ 3560 . Where the sufferings of the married woman",
who committed suicide within seven years were not due to dowry demands but due to,
"incompatibility of temperament and attitudes, no conviction.",
"51. U Subba Rao v State of Karnataka, 2003 AIR—Kant HCR 1062 : 2003 Cr LJ (NOC) 120 (Kant).",
"52. Annupurnabal v State of MP, 1999 Cr LJ 2696 (MP); Ramesh v State of TN, 2005 Cr LJ 1732 :",
"AIR 2005 SC 1989 [LNIND 2005 SC 222] : (2005) 3 SCC 507 [LNIND 2005 SC 222] , allegation",
that the husband's married sister stayed with her parents for a few days. The allegation against,
her was she directed the complainant wife to wash WC and also made imputations against her.,
Did not amount to harassment for dowry demand.,
"53. Paparambaka Rosamma v State of AP, 1999 Cr LJ 4321 : AIR 1999 SC 3455 ; Lawrence v",
"State of Kerala, 2002 Cr LJ 3455 (Ker); Taruna v State of WB, 2001 Cr LJ 4937 (SC); State of HP v",
"Kewal Kumar, 2002 Cr LJ 3807 (HP).",
"54. Lella Srinivasa Rao v State of AP, (2004) 9 SCC 713 [LNIND 2004 SC 1273] : AIR 2004 SC",
1720 [LNIND 2004 SC 1273] .,
"55. Bhaskar Lal Sharma v Monica, (2010) 1 SCC (Cr) 383 : (2009) 10 SCC 604 [LNIND 2009 SC",
1432] .,
"56. Ganpat Dnyanoba Garje v State of Maharashtra, 2012 Cr LJ 1874 (Bom).",
"57. Ramgopal v State of MP, 2010 (13) SCC 540 [LNIND 2010 SC 690] : 2010 (7) Scale 711",
[LNIND 2010 SC 690] .,
"58. State v Dhruv Kumar Singh, 2002 Cr LJ 1315 .",
"59. Lalmani Mahto v State of Bihar, 2003 Cr LJ (NOC) 1 (Jhar) : (2002) 3 JLJR 576 .",
"60. Arun Garg v State of Punjab, (2004) 8 SCC 251 [LNIND 2004 SC 1012] .",
"61. Satya Narayan Tiwari v State of UP, 2011 Cr LJ 445 : (2010) 13 SCC 689 [LNINDORD 2010 SC",
188] A.,
"62. Satish Kumar Batra v State of Haryana, AIR 2009 SC 2180 [LNIND 2009 SC 754] : (2009) 12",
SCC 191 .,
"63. Heera Lal v State of Rajasthan, 2017 (6) Scale 152 .",
"64. Vijai Ratan Sharma v State of UP, 1988 Cr LJ 1581 (All). To the same effect is the decision in",
"S Faisal Nabi v State of MP, 2001 Cr LJ 1598 (MP), cruelty was committed at her in-laws' place",
"and continued at her parents' home where she was forced to go, letters of dowry demand also",
received at the latter place. The Courts at the place of parental home had jurisdiction. Mohd,
"Haroom v State of Rajasthan, 1999 Cr LJ 2532 (Raj), unlawful demands, held not sufficient in",
themselves to constitute cruelty or lead to suicide.,
"65. Dukhi Ram v State of UP, 1993 Cr LJ 2539 (All).",
"66. Rajaram Venkatesh v State of AP, 1993 Cr LJ 707 (AP).",
"67. Suman Upadhyay v State of UP, 1999 Cr LJ 4657 (All).",
"68. Gulshan Kapoor v State of Rajasthan, 2011 Cr LJ 4864 (Raj).",
"69. Sunita Kumari Kashyap v State of Bihar, AIR 2011 SC 1674 [LNIND 2011 SC 405] : 2011 Cr LJ",
2667 .,
"70. Sujata Mukherjee v Prashant Kumar Mukherjee, AIR 1997 SC 2465 : 1997 Cr LJ 2985 .",
"71. State of MP v Suresh Kaushal, 2003 (11) SCC 126 : 2002 Cr LJ 217 (SC) reported in 2008",
(11) SCC 103 [LNIND 2008 SC 821] : AIR 2008 SC 2666 [LNIND 2008 SC 821] .,
"72. Vamgarala Yedukondala v State of AP, 1988 Cr LJ 1538 (AP).",
"73. Prasanna Kumar v Dhanalaxmi, 1989 Cr LJ 1829 (Mad). Amrish Kumar Agarwal v State of UP,",
"2000 Cr LJ 1324 (All), offence committed before commencement of the new section,",
prosecution not justified.,
"74. Vasanta Tulshiram Bhoyar v State of Maharashtra, 1987 Cr LJ 901 (Bom).",
"75. State of Rajasthan v Gopilal, 1992 Cr LJ 273 . A similar approach was adopted by AP High",
"Court in Thathapadi Venkatalakshmi v State of AP, 1991 Cr LJ 749 , the court pointing out that",
the wife cannot be permitted to withdraw the charge-sheet if it is filed by the police. Gursharan,
"Kaur v State of Rajasthan, 1993 Cr LJ 2076 (Raj), the court ordered compromise to be recorded",
setting aside the Magistrate's order.,
"76. D Jayalakshmi v State of MP, 1993 Cr LJ 3162 (AP).",
"77. Pyare Lal Gupta v State, 2000 Cr LJ 1019 (Del).",
"78. Manoj Kumar v State of Rajasthan, 1999 Cr LJ 10 (Raj).",
"79. Gopal v State of TN, 1999 Cr LJ 3939 (Mad).",
"80. BS Joshi v State of Haryana, AIR 2003 SC 1386 [LNIND 2003 SC 335] : 2003 Cr LJ 2028 , the",
aggrieved wife settled the matter with her husband by going in for consent divorce and applied,
"for quashing of her complaint. Risal Singh v State of Punjab, 2012 Cr LJ 2188 (SC) : 2012 AIR",
"SCW 2249; Jitendra v Babita, (2013) 4 SCC 58 [LNIND 2013 SC 195] .",
"81. RP Bidlan v State of Maharashtra, 1993 Cr LJ 3019 (Bom).",
"82. Balkrishna Pandurang Moghe v State of Maharashtra, 1998 Cr LJ 4496 (Bom). The Court said",
that the section is not invalid on the ground of absence of nexus between the provision and the,
"object sought to be achieved; Rajendran v Commr of Police, AIR 2009 SC 855 [LNIND 2008 SC",
"2339] : (2008) 17 SCC 501 [LNIND 2008 SC 2339] , evidence of torture leading to suicide.",
"83. Suvetha v State, (2009) 6 SCC 757 [LNIND 2009 SC 1156] : 2009 Cr LJ 2974 ; Ranjana",
"Gopalrao Thorat v State of Maharashtra, 2008 Bom CR (Cr) 185 : (2007 (5) AIR Bom R 271; a",
person can become a relative only by blood or marriage and not otherwise. The word relative,
has been defined in the Chambers Dictionary 'person who is related by blood or marriage'. A,
second wife cannot assume a character as wife if there is no marriage in the eye of law. Since,
"she is not a relative, she does not fall within the scope of section 498A of IPC, 1860 at all. She",
"certainly deserves to be discharged as far as offence under section 498A of IPC, 1860 is",
"concerned; John Indiculla v State, 2005 Cr LJ 2925 (Ker) - the second wife is a relative of the",
husband.,
"84. Syed Hyder Hussain v State of AP, (2002) Cr LJ 3602 (AP).",
"85. Reema Agarwal v Anupam, (2004) 3 SCC 199 [LNIND 2004 SC 1499] : AIR 2004 SC 1418",
"[LNIND 2004 SC 1499] : 2004 Cr LJ 892 ; A Subhash Babu v State of AP, AIR 2011 SC 3031",
[LNIND 2011 SC 679] : 2011 (7) SCC 616 [LNIND 2011 SC 679] .,
"86. Vasant Bhagwat Patil v State of Maharashtra, 2012 Cr LJ 65 (Bom).",
"87. Chandrawati v State, 1996 Cr LJ 975 (Del).",
"88. Undavalli Narayana Rao v State of AP, (2009) 14 SCC 588 [LNIND 2009 SC 1515] .",
"89. Inderpal v State of MP, (2001) 10 SCC 736 : 2002 Cr LJ 926 (SC); Gananath Pattnaik v State",
"of Orissa, (2002) 2 SCC 619 [LNIND 2002 SC 100] .",
"90. State of Karnataka v Siddaraju, 2000 Cr LJ 4220 (Kant); Kishangiri Mangalgiri Goswami v",
"State of Gujarat, (2009) 4 SCC 52 [LNIND 2009 SC 193] : AIR 2009 SC 1808 [LNIND 2009 SC 193]",
": 2009 Cr LJ 1720 : (2009) 2 GLR 1074 , imprisonment for 10 years not interfered with, that",
"under Dowry Prohibition Act, 1961, section 3, reduced from five to three years. Balwant Singh v",
"State of HP, (2008) 15 SCC 497 [LNIND 2008 SC 1942] : 2008 Cr LJ 4683 , sentence for one year",
"maintained, that of aged parents-in-law reduced to the period already undergone. Shivcharan Lal",
"Verma v State of MP, (2007) 15 SCC 369 , second marriage during life-time of the first wife,",
"second wife tortured by both, section 498-A not applicable, but because she committed suicide",
"because of the torture, conviction under section 306 maintained, but sentence of seven years",
"reduced to five years. Milind Bhagwanrao Godse v State of Maharashtra, (2009) 2 SCC (Cr) 182 :",
"AIR 2009 AC 1828 : (2009) 3 SCC 699 [LNIND 2009 SC 338] : 2009 Cr LJ 1736 , torture leading",
"to suicide, conviction under sections 498-A, 306, 109 read with section 34. Kailash v State of MP,",
"(2006) 12 SCC 667 [LNIND 2006 SC 803] : AIR 2007 SC 107 [LNIND 2006 SC 803] , the accused",
"had already under gone eight years of imprisonment, the court reduced the sentence to eight",
"years. Anand Mohan Sen v State of WB, (2007) 10 SCC 774 [LNIND 2007 SC 688] : 2007 Cr LJ",
"2770 , death by itself may not lead to an inference that cruelty was there, but in this case there",
"were specific allegations which were proved by prosecution witnesses, ingredients were",
"satisfied, no interference in the order of conviction by the High Court.",
"91. Malyala Vishwanatha Rao v State of AP, 2003 Cr LJ (NOC) 11 (AP) : (2002) 1 ALT (Cr) 499.",
"Konidela Madhusudhan v State of AP, 2003 Cr LJ (NOC) 172 (AP) : (2003) 1 Andh LD (Cr) 823,",
harassment was not complained of immediately. The sentence of imprisonment was restricted,
"to the period already undergone. Chandra Kala Devi v State of Bihar, 2003 Cr LJ 3146 (Pat),",
evidence of witnesses showed that the in-laws of the victim demanded motorcycle from parents,
and that she had to face hostile atmosphere for that reason. There was also an attempt to set,
"her on fire. Finding of guilt and sentence imposed were confirmed, but looking at their age and",
"the fact that they remained in custody for 52 days, their sentence was reduced to the period",
already undergone.,
"92. State of Maharashtra v Vasant Shankar Mhasane, 1993 Cr LJ 1134 (Bom). Raghumunda",
"Satya Narayana v State of AP, AIR 2000 SC 3420 : 2000 Cr LJ 2779 the accused-husband was",
convicted under the section and sentenced to two years' imprisonment. The aggrieved wife filed,
affidavit saying that they had come to terms and that their peace would elude them if the,
husband had to undergo the whole sentence. The sentence was reduced to the period already,
undergone.,
"93. Siddaling v State, AIR 2018 SC 3829 [LNIND 2018 SC 355] .",
"94. BT Jayaram v State of Karnataka, (2008) 14 SCC 530 : AIR 2006 SC 1799 . Satish Kumar",
"Batra v State of Haryana, (2009) 12 SCC 491 [LNIND 2009 SC 754] : AIR 2009 SC 2180 [LNIND",
"2009 SC 754] : 2009 Cr LJ 2447 , sentence reduced to the period already undergone 13 months.",
"95. Rajesh Sharma v State of UP, AIR 2017 SC 3869 [LNIND 2017 SC 351] .",
"96. Onkar Nath Mishra v State (NCT) of Delhi, (2008) 2 SCC 561 [LNIND 2007 SC 1511] : 2008 Cr",
LJ 1391 . See also Social Action Forum for Manav Adhikar v Union of India Ministry of Law and,
"Justice, AIR 2018 SC 4273 .",
"97. Onkar Nath Mishra v State (NCT) of Delhi, (2008) 2 SCC 561 [LNIND 2007 SC 1511] : 2008 Cr",
"LJ 1391 , there was not even whisper of wilful conduct of harassment.",
"98. Sunil Kumar Sambhudayal Gupta v State of Maharashtra, 2011 Cr LJ 705 : (2010) 13 SCC 657",
[LNIND 2010 SC 1088] .,
"99. KRJ Sarma v Surya Rao, 2013 Cr LJ 2189 (SC); State of HP v Manju Rani, 2013 Cr LJ 101",
"(HP); Anil Kumar Gupta v State of UP, 2011 Cr LJ 2131 : (2011) 11 SCC 24 [LNIND 2011 SC 275] ;",
"Atikul Islam v State of Tripura, 2013 Cr LJ 1374 (Gau) — allegation of cruelty is not proved",
"beyond reasonable doubt, Accused was acquitted.",
"100. Maniklal Jain v State of MP, 2012 Cr LJ 613 (SC) : 2011 AIR SCW 6471.",
"101. Anisetti Sivaprasada Rao v State of AP, 1994 Cr LJ 1760 (AP). Mangilal v State of Rajasthan,",
"AIR 2001 SC 2937 [LNIND 2001 SC 2385] , the accused administered poison to his wife,",
"acquittal set aside; Girdhar Shankar Tawade v State of Maharashtra, AIR 2002 SC 2078 [LNIND",
"2002 SC 325] : 2002 Cr LJ 2814 (SC), charges under sections 306 and 498A are independent of",
each other. Acquittal under section 306 does not necessarily entail acquittal under section,
498A. But there was no evidence to bring home the charge even under section 498A.,
"102. Savalram v State of Maharashtra, 2003 Cr LJ 2831 (Bom).",
"103. Hussan Lal v State of Punjab, 2002 Cr LJ 2436 (P&H).",
"104. Vijaya v Laxmanan, 1999 Cr LJ 5012 : (1998) 8 SCC 415 .",
"105. Arun Vyas v Anita Vyas, AIR 1999 SC 2071 [LNIND 1999 SC 1377] : 1999 Cr LJ 3479 .",
"106. Preeti Gupta v State of Jharkhand, (2010) 7 SCC 667 [LNIND 2010 SC 752] : AIR 2010 SC",
3363 [LNIND 2010 SC 752] .,
"107. Law Commission of India—243rd Report, Para-9.1; Available at :",
http://lawcommissionofindia.nic.in/reports/report243.pdf (last accessed in July 2019).,
108. Law Commission of India- 243rd Report- Para-9.1; Available at :,
http://lawcommissionofindia.nic.in/reports/report243.pdf (last accessed in July 2019).,
THE INDIAN PENAL CODE,
CHAPTER XXI OF DEFAMATION,
[s 499] Defamation.,
"Whoever, by words either spoken or intended to be read, or by signs or by visible",
"representations, makes or publishes any imputation concerning any person intending",
"to harm, or knowing or having reason to believe that such imputation will harm, the",
"reputation of such person, is said, except in the cases hereinafter expected, to",
defame that person.,
Explanation 1.—It may amount to defamation to impute anything to a deceased,
"person, if the imputation would harm the reputation of that person if living, and is",
intended to be hurtful to the feelings of his family or other near relatives.,
Explanation 2.—It may amount to defamation to make an imputation concerning a,
company or an association or collection of persons as such.,
"Explanation 3.—An imputation in the form of an alternative or expressed ironically,",
may amount to defamation.,
"Explanation 4.—No imputation is said to harm a person's reputation, unless that",
"imputation directly or indirectly, in the estimation of others, lowers the moral or",
"intellectual character of that person, or lowers the character of that person in respect",
"of his caste or of his calling, or lowers the credit of that person, or causes it to be",
"believed that the body of that person is in a loathsome state, or in a state generally",
considered as disgraceful.,
ILLUSTRATIONS,
"(a) A says—""Z is an honest man; he never stole B's watch""; intending to cause it to",
"be believed that Z did steal B's watch. This is defamation, unless it fall within",
one of the exceptions.,
"(b) A is asked who stole B's watch. A points to Z, intending to cause it to be",
believed that Z stole B's watch. This is defamation unless it falls within one of,
the exceptions.,
"(c) A draws a picture of Z running away with B's watch, intending it to be believed",
"that Z stole B's watch. This is defamation, unless it fall within one of the",
exceptions.,
Imputation of truth which public good requires to be made or published.,
First Exception.—It is not defamation to impute anything which is true concerning,
"any person, if it be for the public good that the imputation should be made or",
published. Whether or not it is for the public good is a question of fact.,
Public conduct of public servants.,
Second Exception.—It is not defamation to express in a good faith any opinion,
whatever respecting the conduct of a public servant in the discharge of his public,
"functions, or respecting his character, so far as his character appears in that",
"conduct, and no further.",
Conduct of any person touching any public question.,
Third Exception.—It is not defamation to express in good faith any opinion,
"whatever respecting the conduct of any person touching any public question, and",
"respecting his character, so far as his character appears in that conduct, and no",
further.,
ILLUSTRATION,
It is not defamation in A to express in good faith any opinion whatever respecting Z's,
"conduct in petitioning Government on a public question, in signing a requisition for a",
"meeting on a public question, in presiding or attending a such meeting, in forming or",
"joining any society which invites the public support, in voting or canvassing for a",
particular candidate for any situation in the efficient discharges of the duties of which,
the public is interested.,
Publication of reports of proceedings of Courts.,
Fourth Exception.—It is not defamation to publish substantially true report of the,
"proceedings of a Court of Justice, or of the result of any such proceedings.",
Explanation.—A Justice of the Peace or other officer holding an inquiry in open,
"Court preliminary to a trial in a Court of Justice, is a Court within the meaning of",
the above section.,
Merits of a case decided in Court or conduct of witnesses and others concerned.,
Fifth Exception.—It is not defamation to express in good faith any opinion,
"whatever respecting the merits of any case, civil or criminal, which has been",
"decided by a Court of Justice, or respecting the conduct of any person as a party,",
"witness or agent, in any such case, or respecting the character of such person, as",
"far as his character appears in that conduct, and no further.",
ILLUSTRATIONS,
"(a) A says—""I think Z's evidence on that trial is so contradictory that he must be",
"stupid or dishonest"". A is within this exception if he says this is in good faith, in",
as much as the opinion which he expresses respects Z's character as it appears,
"in Z's conduct as a witness, and no further.",
"(b) But if A says—""I do not believe what Z asserted at that trial because I know him",
"to be a man without veracity""; A is not within this exception, in as much as the",
"opinion which he expresses of Z's character, is an opinion not founded on Z's",
conduct as a witness.,
Merits of public performance.,
Sixth Exception.—It is not defamation to express in good faith any opinion,
respecting the merits of any performance which its author has submitted to the,
"judgment of the public, or respecting the character of the author so far as his",
"character appears in such performance, and no further.",
Explanation.—A performance may be substituted to the judgment of the public,
expressly or by acts on the part of the author which imply such submission to the,
judgment of the public.,
ILLUSTRATIONS,
"(a) A person who publishes a book, submits that book to the judgment of the public.",
"(b) A person who makes a speech in public, submits that speech to the judgment of",
the public.,
"(c) An actor or singer who appears on a public stage, submits his acting or singing",
to the judgment of the public.,
"(d) A says of a book published by Z—""Z's book is foolish; Z must be a weak man. Z's",
"book is indecent; Z must be a man of impure mind"". A is within the exception, if",
"he says this in good faith, in as much as the opinion which he expresses of Z",
"respects Z's character only so far as it appears in Z's book, and no further.",
"(e) But if A says—""I am not surprised that Z's book is foolish and indecent, for he is",
"a weak man and a libertine"". A is not within this exception, inasmuch as the",
opinion which he expresses of Z's character is an opinion not founded on Z's,
book.,
Censure passed in good faith by person having lawful authority over another.,
Seventh Exception.—It is not defamation in a person having over another any,
"authority, either conferred by law or arising out of a lawful contract made with",
"that other, to pass in good faith any censure on the conduct of that other in",
matters to which such lawful authority relates.,
ILLUSTRATION,
"A Judge censuring in good faith the conduct of a witness, or of an officer of the Court;",
a head of a department censuring in good faith those who are under his orders; a,
"parent censuring in good faith a child in the presence of other children; a schoolmaster,",
"whose authority is derived from a parent, censuring in good faith a pupil in the",
presence of other pupils; a master censuring a servant in good faith for remissness in,
service; a banker censuring in good faith the cashier of his bank for the conduct of,
such cashier as such cashier—are within this exception.,
Accusation preferred in good faith to authorised person.,
Eighth Exception.—It is not defamation to prefer in good faith an accusation,
against any person to any of those who have lawful authority over that person,
with respect to the subject-matter of accusation.,
ILLUSTRATION,
If A in good faith accuse Z before a Magistrate; if A in good faith complains of the,
"conduct of Z, a servant, to Z's master; if A in good faith complains of the conduct of Z,",
"a child, to Z's father—A is within this exception.",
Imputation made in good faith by person for protection of his or other's interests.,
Ninth Exception.—It is not defamation to make an imputation on the character of,
another provided that the imputation be made in good faith for the protection of,
"the interests of the person making it, or of any other person, or for the public",
good.,
ILLUSTRATIONS,
"(a) A, a shopkeeper, says to B, who manages his business—""Sell nothing to Z unless",
"he pays you ready money, for I have no opinion of his honesty"". A is within the",
"exception, if he has made this imputation on Z in good faith for the protection of",
his own interests.,
"(b) A, a Magistrate, in making a report of his own superior officer, casts an",
"imputation on the character of Z. Here, if the imputation is made in good faith,",
"and for the public good, A is within the exception.",
Caution intended for good of person to whom conveyed or for public good.,
"Tenth Exception.—It is not defamation to convey a caution, in good faith, to one",
"person against another, provided that such caution be intended for the good of",
"the person to whom it is conveyed, or of some person in whom that person is",
"interested, or for the public good.",
COMMENT.—,
"Section 499 Indian Penal Code (IPC, 1860) brings under the criminal law, the person",
who publishes as well as the person who makes the defamatory imputation. Section,
"499, IPC, 1860 emphasises the words ""makes or publishes"". The gist of the offence of",
defamation lies in the dissemination of the harmful imputation. When a defamatory,
"statement is published, it is not only the publisher, but also the maker who becomes",
"responsible and it is in that context that the word ""makes"" is used in section 499 IPC,",
"1860. It is of essence that in order to constitute the offence of defamation, it must be",
communicated to a third person because what is intended by the imputation is to,
"arouse hostility of others. Therefore, in brief, the essentials of defamation are, first, the",
"words must be defamatory; second, they must refer to the aggrieved party; third, they",
must be maliciously published.1.,
[s 499.1] Reputation.—,
Right to reputation is a facet of right to life of a citizen under Article 21 of the,
"Constitution.2. The right to enjoyment of a private reputation, unassailed by malicious",
"slander is of ancient origin, and is necessary to human society. A good reputation is an",
"element of personal security, and is protected by the Constitution equally with the right",
"to the enjoyment of life, liberty and property.3. The term 'person' includes not only the",
physical body and members but also every bodily sense and personal attribute among,
which is the reputation a man has acquired. Reputation can also be defined to be good,
"name, the credit, honour or character which is derived from a favourable public opinion",
"or esteem, and character by report. The right to enjoyment of a good reputation is a",
valuable privilege of ancient origin and necessary to human society. 'Reputation' is an,
element of personal security and is protected by Constitution equally with the right to,
"enjoyment of life, liberty and property. Although, 'character' and 'reputation' are often",
"used synonymously, these terms are distinguishable. 'Character' is what a man is and",
'reputation' is what he is supposed to be in what people say he is. 'Character' depends,
on attributes possessed and 'reputation' on attributes which others believe one to,
possess. The former signifies reality and the latter merely what is accepted to be reality,
at present.4.,
[s 499.2] Constitutional validity.—,
"The Constitutional validity of sections 499 and 500 of IPC, 1860 and section 199 of",
"Code of Criminal Procedure, (Cr PC, 1973) was assailed in Subramanian Swamy v UOI,",
"Ministry of Law,5. and the Supreme Court upheld it. The Court observed thus:",
One cannot be unmindful that right to freedom of speech and expression is a highly valued,
and cherished right but the Constitution conceives of reasonable restriction. In that context,
criminal defamation which is in existence in the form of ss. 499 and 500 Indian Penal Code,
is not a restriction on free speech that can be characterized as disproportionate. Right to,
free speech cannot mean that a citizen can defame the other. Protection of reputation is a,
fundamental right. It is also a human right. Cumulatively it serves the social interest.,
The Apex Court did not accept that the provisions relating to criminal defamation are,
"not saved by the doctrine of proportionality, because it determines a limit which is not",
impermissible within the criterion of reasonable restriction. The Court also held that the,
criminal prosecution on defamation will not negate and violate the right to speech and,
expression of opinion.,
"1. BRK Murthy v State, 2013 Cr LJ 1602 (AP).",
"2. Mehmood Azam v State, AIR 2012 SC 2573 [LNIND 2012 SC 456] : (2012) 8 SCC 1 [LNIND",
"2012 SC 456] ; Vishwanath S/o Sitaram Agrawal v Sarla Vishwanath Agrawal, AIR 2010 SC 1974",
[LNINDORD 2010 SC 207] : 2010 (7) SCC 263 [LNIND 2010 SC 438] .,
"3. Smt. Kiran Bedi v Committee of Inquiry, AIR 1995 SC 117 [LNIND 1994 SC 929] : 1994 (6) SCC",
"565 [LNIND 1994 SC 952] : 1995 SCC (Cr) 29, quoted from D F Marion v Davis, 1989 (1) SCC 494",
[LNIND 1989 SC 10] : AIR 1989 SC 714 [LNIND 1989 SC 833] .,
"4. Kishore Samrite v State of UP, (2013) 2 SCC 398 [LNIND 2012 SC 657] .",
"5. Subramanian Swamy v UOI, Ministry of Law, 2016 Cr LJ 3214 : 2016 (5) SCJ 643 .",
THE INDIAN PENAL CODE,
CHAPTER XXI OF DEFAMATION,
[s 500] Punishment for defamation.,
Whoever defames another shall be punished with simple imprisonment for a term,
"which may extend to two years, or with fine, or with both.",
COMMENT.—,
The essence of the offence of defamation consists in its tendency to cause that,
description of pain which is felt by a person who knows himself to be the object of the,
"unfavourable sentiments of his fellow-creatures, and those inconveniences to which a",
person who is the object of such unfavourable sentiments is exposed.6.,
[s 500.1] Ingredients.—,
The section requires three essentials:—,
1. Making or publishing any imputation concerning any person.,
2. Such imputation must have been made by,
"(a) words, either spoken or intended to be read; or",
(b) signs; or,
(c) visible representations.,
3. Such imputation must have been made with the intention of harming or with,
knowledge or reason to believe that it will harm the reputation of the person concerning,
whom it is made.7. It is clear that intention to cause harm is the most essential sine,
"qua non for an offence under section 499, IPC, 1860. An offence punishable under",
"section 500, IPC, 1860 requires blameworthy mind and is not a statutory offence",
requiring any mens rea.8.,
1. 'Makes or publishes any imputation concerning any person'.—Everyone who,
"composes, dictates, writes or in any way contributes to the making of a libel, is the",
"maker of the libel. If one dictates, and another writes, both are guilty of making it, for he",
"shows his approbation of what he writes. So, if one repeats, another writes a libel, and",
"a third approved what is written they are all makers of it, as all who concur and assent",
to the doing of an unlawful act are guilty; and murdering a man's reputation by a libel,
"may be compared to murdering a man's person, in which all who are present and",
"encourage the act are guilty, though the wound was given by one only.9. The mechanic",
or the compositor of the Press does neither 'make nor publish' the matter that may be,
impugned as defamatory.10. Intention on the part of the accused to harm the,
reputation or the knowledge or reasonable belief that an imputation will harm the,
reputation of the person concerned being an essential ingredient of the offence of,
"defamation, the Chairman of a Company owning the newspaper in which the offending",
news item is published cannot be held liable unless it is shown that he was somehow,
concerned with the publication of the defamatory news item. Under section 7 of the,
"Press and Registration of Books Act, 1867 a presumption regarding awareness of the",
contents of a newspaper can be raised only against the Editor whose name appears on,
the copy of the newspaper and no other Editors like the News Editor or Resident Editor,
whose names do not appear in the declaration printed on the copy of the newspaper.11.,
[s 500.2] 'Publishes'.—,
"The defamatory matter must be published, that is, communicated to some person",
"other than the person about whom it is addressed, e.g., dictating a letter to a clerk is",
publication.12. Imputations in a charge sheet which is sent to the employee himself,
does not amount to a publication.13. But where there is a duty which forms the ground,
"of privileged occasion, the person exercising the privilege may communicate matters",
to a third person in the ordinary course of business. A solicitor who dictates to his clerk,
a letter containing defamatory statements regarding a person is not liable for,
defamation.14. Where the complainant's Advocate sent a notice to a party whose,
Advocate dictated a reply to his steno containing defamatory remarks and the same,
"was sent to the complainant's Advocate, the Kerala High Court held that this did not",
amount to any publication.15.,
Communicating defamatory matter only to the person defamed is not publication.16.,
"The action of a person who sent to a public officer by post, in a closed cover, a notice",
containing imputations on the character of the recipient but which was not,
communicated by the accused to any third person was held to be not such a 'making',
or 'publishing' of the matter complained of as to constitute this offence.17. A notice,
under a Municipal Act was issued by the President of the Municipal Committee to a,
"certain person, who sent a reply containing defamatory allegations against the",
President. This reply was put on the official file by the President and it was read by the,
members of the Committee. It was held that there was publication of the defamation.,
The placing of the reply on the official file was not a gratuitous or voluntary act on the,
"part of the President but it was his duty to do so, and the accused knew or must have",
known that the contents of his reply would be necessarily communicated to the,
members of the Committee.18.,
"Where the alleged defamatory words were sent to the complainant by registered post, it",
was held that there was no publication. There was absence of one of the necessary,
"ingredients of the offence, namely publication. The complaint was liable to be",
quashed.19.,
Defamatory matter written on a postcard20. or printed on papers distributed or,
"broadcast,21. constitutes publication. So is the filing in a Court of a petition containing",
defamatory matter concerning a person with the intention that it should be read by,
other persons.22. When a person presents a defamatory petition to a superior public,
"officer, who, in the ordinary course of official routine, sends it to some subordinate",
"officer for inquiry, there is a publication of the letter at the place where he may receive",
"it, and publication for which the original writer may prima facie be held responsible,",
whether or not he expressly asks for an inquiry.23. Communication to a husband or wife,
"of a charge against the wife or husband is publication,24. but uttering of a libel by a",
"husband to his wife is not, as in England they are one in the eye of the law.25.",
"Where a libel is printed, the sale of each copy is a distinct publication and a fresh",
offence; and conviction or acquittal on an indictment for publishing one copy will be no,
bar to an indictment for publishing another copy.26.,
The person who publishes the imputation need not necessarily be the author of the,
imputation. The person who publishes and the person who makes an imputation are,
alike guilty.27.,
[s 500.3] General Statement.—,
"In order to constitute offence of defamation the words, signs, imputation made by",
accused must either be intended to harm the reputation of a particular person or the,
accused must reasonably know that his/her conduct could cause such harm. Where,
the appellant's statement published in news magazine was a rather general,
endorsement of pre-marital sex and her remarks were not directed at any individual or,
"even at a 'company or an association or collection of persons', it was held that it cannot",
be construed as an attack on the reputation of anyone in particular.28. Where a,
complaint was filed with regard to a statement made by the Gujarat Chief Minister,
published in media or newspaper or over television or through internet that ex-Prime,
Minister late Hon'ble Shri Jawahar Lal Nehru did nothing for children. The High Court,
upheld the rejection of complaint holding that it was only a general statement and,
cannot be construed as an attack on reputation of anyone in particular.29.,
[s 500.4] Repetition.—,
The Code makes no exception in favour of a second or third publication as compared,
with the first. If a complaint is properly laid in respect of a publication which is prima,
"facie defamatory, the Magistrate is bound to take cognizance of the complaint, and",
"deal with it according to law.30. The publisher of a libel is strictly responsible,",
irrespective of the fact whether he is the originator of the libel or is merely repeating,
it.31.,
[s 500.5] Publication of defamatory matter in newspaper.—,
"In a case of defamation, only the source of information on which the person accused",
"has acted and the justification for his so acting, are to be considered. If he has not",
"taken proper care and acted on gossip against the complainant hereby defamed, he",
ought not to escape the consequence on the ground that he has contracted the,
incorrect report. The culpability in such cases does not depend upon the,
circumstances where he has tried to undo the wrong which he has committed or not,
"put up on fact he has acted with care or attention or has done so rashly or negligently, it",
is no defence in the matter of defamation for the accused to say that he has acted on,
the information given to him by another. It is for him to establish that the source on,
which he acted is a proper source on which he is entitled and he did with care and,
"circumspection. Therefore, the editor and publisher are liable for the baseless and false",
matter which was published in the journal. Such an irresponsible conduct and attitude,
on the part of the editor and publisher cannot be said to be done in good faith.32. In the,
matter of defamation the position of newspaper is not in any way different from that of,
member of the public in general. The responsibility in either case is the same.33. The,
publisher of a newspaper is responsible for defamatory matter published in such paper,
whether he knows the contents of such paper or not.34. But it would be a sufficient,
answer to a charge of defamation against the editor of a newspaper if he proved that,
the libel was published in his absence and without his knowledge and he had in good,
faith entrusted the temporary management of the newspaper during his absence to a,
competent person.35. The owner of a journal in order to be liable under section 499 has,
to have direct responsibility for the publication of the defamatory statement and he,
"must also have the intention to harm, or knowledge or reason to believe that the",
imputation will harm the reputation of person concerned. The owner of a journal qua,
has no responsibility under the section.36. The prosecution of the chairman and,
managing director of a company owning the newspaper for the publication of,
defamatory article in the newspaper by reason of their holding those posts would be,
invalid unless their personal involvement in the publication of the article is,
established.37.,
Where a newspaper carried extracts from a book written on one of the former Prime,
"Ministers of India containing imputations of corruption, the editor of the newspaper",
was liable to be prosecuted. His plea that he was only a publisher and not the author of,
the extracts was held to be not tenable. It was alleged that there was a criminal,
"conspiracy in the matter between the managing editor, resident editor and executing",
editor. All of them were liable to be prosecuted.38. A chief editor of a newspaper cannot,
say that he is not responsible for selection and publication of matters in the,
newspaper. A complaint against the chief editor is maintainable.39.,
"The sending of a newspaper, containing defamatory matter by post from Calcutta,",
"where it is published, addressed to a subscriber at Allahabad, is publication of such",
defamatory matter at Allahabad.40.,
[s 500.6] Liability of Editor.—,
"From the scheme of the Press and Registration of Books (PRB) Act, it is evident that it",
is the Editor who controls the selection of matter that is published. A news item has the,
potentiality of bringing doom's day for an individual. The Editor controls the selection of,
"the matter that is published. Therefore, he has to keep a careful eye on the selection.",
Blue-penciling of news articles by anyone other than the Editor is not welcome in a,
democratic polity. Editors have to take responsibility of everything they publish and to,
maintain the integrity of published record.41.,
[s 500.7] Prosecution against CEO of TV Channel.—,
"In order to constitute offence of defamation under criminal law, section 499, IPC, 1860",
"contemplates ""intending to harm, or knowing or having reason to believe that such",
"imputation will harm reputation of such person"" on the part of the accused. In the entire",
"complaint, the complainant/1st respondent did not allege that the accused, who is",
"Chief Executive Officer of TV-9 channel, telecast the news item or permitted to re-",
telecast the news item with such state of mind (Mens rea). Except as Chief Executive,
"Officer of the TV news channel, the complainant did not allege any other connection for",
the accused with telecasting of the news item. In the absence of any such connection,
for the accused with this news item and in the absence of any such mens rea or state,
"of mind for the accused in relation to this news item, simply because the accused",
happened to be Chief Executive Officer or proprietor or partner or managing director of,
"the TV news channel, no criminal case can lie against him for offence punishable under",
"section 500, IPC, 1860.42.",
[s 500.8] Jurisdiction.—,
Where a newspaper containing a defamatory article is printed and published at one,
place and is circulated or sold at other places by or on behalf of the accused,
"responsible for printing and publishing the newspaper, then there would be publication",
of the defamatory article in all such places and jurisdictional Magistrate can entertain,
the complaint for defamation. It cannot be said that the act of publication comes to an,
end as soon as the issue of the newspaper is released at one place. If that newspaper,
"is despatched by the printer and publisher to other places for being sold or circulated,",
the defamatory article gets published at each such place. The mere fact that the,
headquarter of a newspaper is based at a particular place or that it is printed and,
"published at one place, does not necessarily mean that there cannot be publication of",
the defamatory article contained in the newspaper at another place. If the defamatory,
"imputation is made available to public at several places, then the offence is committed",
at each such place. Though the first offence may be committed at the place where it is,
"printed and first published, it gets repeated wherever the newspaper is circulated at",
other places.43.,
[s 500.9] Apology.—,
Where the incriminating news was not published in the newspaper by the editor,
knowing or having good reason to believe that such matter was defamatory of the,
"complainant, the editor had no ill will against him and had expressed regret for such",
"publication, it was held that the editor could not be held responsible in connection with",
the defamation.44.,
[s 500.10] 'Imputation'.—,
"It is immaterial whether the imputation is conveyed obliquely or indirectly, or by way of",
"question, conjecture, or exclamation, or by irony.45.",
"The words ""coward, dishonest man, and something worse than either""46. and words to",
the effect that the complainant and others were preparing to bring a false charge,
"against the accused,47. were held to be defamatory. Calling a counsel ""badmash"" in the",
open Court was held to be not an offence within the meaning of section 499. The Court,
said that it might come under section 504. The acquittal of the accused under section,
500 was held to be proper.48. The accused married the complainant by exchange of,
garlands in a temple. He lived with her for a few days and then started demanding,
money and described her as unchaste woman and not decent looking. The Court said,
"that the ingredients of section 500 were prima facie made out and, therefore, the",
accused was liable to be prosecuted.49.,
[s 500.11] 'Concerning any person'.—,
The words must contain an imputation concerning some particular person or persons,
whose identity can be established. That person need not necessarily be a single,
individual. Where the accused published in a paper an account of an outrage on a,
woman alleged to have been perpetrated by two constables out of four constables,
"stationed at a police station, it was held that, in the absence of proof that it was",
"intended to charge any particular and identifiable constables with the alleged offence,",
the accused could not be convicted.50. Where a film which was alleged to be,
defamatory of lawyers as a class formed the basis of a defamation case against the,
"producers including artists and Chairman of the Central Board of Censors, it was held",
that though the offence of defamation can be committed in regard to a company or,
"collection of persons in view of Explanation 2 to section 499, IPC, 1860, yet it is",
necessary to show that this collection of persons is a small determinate body whose,
identity can be fixed. Advocates as a class are incapable of being defamed.51. In this,
"connection see comments under head ""Explanation-2"" infra.",
"A newspaper is not a person and therefore, it is not an offence to defame a newspaper.",
"Defamation of a newspaper may, in certain cases, involve defamation of those",
responsible for its publication.52.,
[s 500.12] Innuendo.—,
"Where the statement does not refer to the complainant directly, the doctrine of",
innuendo may be pressed into service for the purpose of showing that the complainant,
was the real target of the attack. He must bring forward additional facts showing how,
"the words are related to him in a manner which is defamatory. ""A true innuendo is an",
innuendo by which the plaintiff alleges a special defamatory meaning of the words,
distinct from their ordinary meaning and arising by virtue of extrinsic facts or matters,
"known to the recipients.""53. Applying this principle to the facts of a case before it, the",
Supreme Court laid down that an innuendo cannot be established by an evidence,
showing inferences of two kinds. The evidence of additional facts must be capable of,
showing that the words were applicable to the complainant and the complainant,
alone.54.,
2. 'Such imputation should have been made by words either spoken or intended to be,
"read, or by signs or by visible representation'.—IPC, 1860 makes no distinction",
between written and spoken defamation.55.,
[s 500.13] 'By signs or by visible representations'.—,
The words 'visible representation' will include every possible form of defamation which,
"ingenuity can devise. For instance, a statue, a caricature, and effigy, chalk marks on a",
"wall, signs, or pictures may constitute a libel.56. The publication of a group photograph",
"with a false caption depicting the persons in the photograph as soldiers of a ""goonda",
"war"" was held to be defamatory.57. In another case, Complainant alleged that four",
"photographs of an incident were published in a newspaper, in which, one photograph",
showed the complainant more or less nude and that has caused defamation and harm,
to him. The photographs during a protest demonstration a protest demonstration and,
depicted the sequence of events when the complainant was being pulled out of a,
police jeep. It can never be stated that the publication of the photographs in the,
newspaper was with the intention or with knowledge or having reason to believe that it,
will harm the reputation of the complainant. Proceedings are liable to be quashed.58.,
"3. 'Intending to harm, or knowing or having reason to believe that such imputation will",
"harm'.—In this section the expression ""harm"" means harm to the reputation of the",
aggrieved party.59. It is not necessary to prove that the complainant actually suffered,
directly or indirectly from the scandalous imputation alleged; it is sufficient to show,
"that the accused intended to harm, or knew, or had reason to believe that the",
imputation made by him would harm the reputation of the complainant.60. A statement,
made primarily with the object that the person making it should escape from a difficulty,
cannot be made the subject of a criminal charge merely because it contains matter,
which may be harmful to the reputation of other people or hurtful to their feelings.61.,
The meaning to be attached to the word 'harm' is not the ordinary sense in which it is,
used. By 'harm' is meant imputation on a man's character made and expressed to,
others so as to lower him in their estimation. Anything which lowers him merely in his,
own estimation does not constitute defamation.62. Accusing a person in front of the,
"public, of having illicit relations with accuser's sister cannot be considered to have been",
uttered merely as scurrilous abuse in the situation in which they were used against the,
accused. The accusation took place in an open gathering when not only the members,
of the Gram Panchayat were present but also the members of the general public.,
"Conviction of the accused under section 500 IPC, 1860 was upheld.63.",
[s 500.14] 'Reputation'.—,
A man's opinion of himself cannot be called his reputation.64. A man has no 'reputation',
"to himself and therefore, communication of defamatory matter to the person defamed",
is no publication.,
[s 500.15] Explanation 1.—,
"A prosecution may be maintained for defamation of a deceased person, but it has been",
"ruled that no suit for damages will lie in such a case. Where, therefore, a suit was",
brought by the heir and nearest relation of a deceased person for defamatory words,
"spoken of such deceased person, but alleged to have caused damage to the plaintiff as",
"a member of the same family, it was held that the suit was not maintainable.65.",
[s 500.16] Explanation 2.—,
"Imputation concerning company, association or collection of persons.—An action for libel",
will lie at the suit of an incorporated trading company in respect of a libel calculated to,
injure its reputation in the way of its business.66. The words complained of must attack,
"the corporation or company in the method of conducting its affairs, must accuse it of",
fraud or mismanagement or must attack its financial position.67. A corporation has no,
reputation apart from its property or trade. It cannot maintain an action for a libel,
"merely affecting personal reputation. The words complained of, to support a",
"prosecution, must reflect on the management of its business and must injuriously",
"affect the corporation, as distinct from the individuals who compose it. They must",
"attack the corporation in its method of conducting its affairs, must accuse it of fraud or",
mismanagement or must attack its financial position. A corporation cannot bring a,
prosecution for words which merely affect its honour or dignity.68.,
A prosecution lies for libelling Hindu widows as a class.69. Where the defamatory,
"articles, published in a newspaper, related to the habitual immoral conduct of the girls",
"of a particular college, but no particular girl or girls were named in or identifiable from",
"the articles, and the complaint was filed by a number of girls of the college, it was held",
"that the author of the articles was guilty of defamation, in as much as the inevitable",
effect of the articles on the mind of the reader must be to make him believe that it was,
habitual with the girls of the college to misbehave in the ways mentioned so that all the,
girls in the college collectively and each girl individually must suffer in reputation.70.,
This Explanation covers any collection of persons but such collection of persons must,
be identifiable in the sense that one could with certainty say that this group of,
particular people has been defamed as distinguished from the rest of the community.,
Public Prosecutors and Assistant Public Prosecutors at Aligarh in Uttar Pradesh were,
"held to be an identifiable group and hence, could be the subject of defamation",
"according to the Supreme Court.71. In this connection see para captioned ""Concerning",
"any Person"" and the cases mentioned therein.",
The offending article must carry an imputation against a definite and ascertainable,
body of people. A complaint was not allowed to be continued where the article,
published in a magazine carried imputations against a certain community in general,
"and not against any particular group, nor the community was found to be a definite and",
identifiable body of people and the imputations also did not relate to the,
complainant.72. Where a news in a local daily about insufficiency of sandal wood,
"pieces at the cremation of the President of a National Political Party was published, but",
no defamatory words or imputation against the said political party was used in the,
"news item and it did not refer to any definite or determinate person or persons, it was",
held that offence of defamation was not constituted.73.,
[s 500.17] Explanation 4.—,
This Explanation would not apply when the words used and forming the subject-matter,
of the charge are per se defamatory.74. Describing a woman that she has paramours,
wherever she goes is per se defamatory.75. Wanton allegations by the accused against,
"the complainant who was his wife that she was not virgin at the time of marriage, that",
she had a living husband at that time and had a child from him and that she had gone,
"to the extent of committing theft, were held to be defamatory. The burden was upon",
him to show that the publication in question was necessary in good faith for the,
"protection of his interest. He could not do this and, therefore, the Court showed no",
mercy and sentenced him to simple imprisonment for two months and a fine of Rs.,
"3,000.76.",
[s 500.18] Exceptions.—,
The defamatory statement does not fall within any of the Exceptions by reason merely,
of the fact that it is punishable as an offence under section 182 or any other section of,
the Code.77.,
[s 500.19] Members of Legislature and Parliament.—,
"In the absence of legislation by the Indian Parliament on the subject, the privileges,",
powers and immunities of a House of State Legislature or Parliament or of its,
members are the same as those of the House of Commons in England. A member of,
the House of Commons has an absolute privilege in respect of what he has spoken,
within the four walls of the House but there is only a qualified privilege in his favour,
"even in respect of what he has himself said in the House, if he causes the same to be",
published in the public press. Where a member of a State Legislature got published in,
the press a question which the member had sought to put in the House but which the,
Speaker had disallowed and the question contained defamatory imputations regarding,
"the character of a person, it was held that the publication was not accepted by any of",
the exceptions to section 499.78.,
A minister was questioned about misappropriation of Government funds. He replied by,
saying that the preliminary enquiry made by the government showed that some,
misappropriation had taken place. He also disclosed the names of the persons,
involved including that of the complainant as indicated in the report. This part of the,
proceedings was published in the newspaper of the accused. Since the newspaper,
"exercised its qualified privilege in good faith, it was held that there was no intention to",
cause harm to the reputation of the complainant.79.,
[s 500.20] Exception 1.—,
This Exception and Exception 4 require that the imputation should be true. The,
remaining Exceptions do not require it to be so. They only require that it should be,
"made in good faith. When truth is set up as a defence, it must extend to the entire libel",
and it is not sufficient that only a part of the libel is proved to be true.80.,
The truth of the imputation complained of shall amount to defence if it was for the,
"public benefit that the imputation should be published, but not otherwise. A Court may",
"find that an imputation is true, and made for the public good, but on considering the",
"manner of the publication (e.g., in a newspaper) it may hold that the particular",
"publication is not for the public good, and is, therefore, not privileged.81. To get the",
benefit of this exception the accused must prove that the statement made by him is,
true in its substance and effect and not in part. Whether or not the statement was,
"made for public good, an enquiry must be directed to the benefit that the publication",
has rendered or sought to render to the public or to a section of the public and whether,
the matter did concern the public.82.,
[s 500.21] CASE.—,
C was put out of caste by a committee of his caste-fellows on the ground that there,
"was an improper intimacy between him and a woman of his caste. Certain persons,",
"members of the committee, circulated a letter to the members of their caste stating",
that C and such woman had been put out of caste and requesting the members of the,
caste not to receive them into their houses or to eat with them and also made,
"defamatory statements about them. It was held that, had such persons contented",
themselves with announcing the determination of the committee and the grounds upon,
"which such determination was based, they would have been protected, but in as much",
as they went further and made false and uncalled for statements regarding C; they had,
"not acted in good faith.83. If a person really was outcasted, a statement to the",
members of the brotherhood that he was outcasted is the kind of statement,
"contemplated by the expression ""public good"".84. Where there exists a civil dispute",
between the parties as to the property where school is situated and run by,
"complainant, which is admittedly pending in civil Court, mere alerting by accused to",
parents to take admission of their children at their own risk in school or in summer,
camp cannot be considered as defamatory or affecting the reputation or character of,
complainant. The above caution notice by no stretch of imagination can be considered,
"as imputations actionable within the meaning of section 499 of the IPC, 1860.85.",
[s 500.22] Exception 2.—,
Every citizen has a right to comment on those acts of public men which concern him as,
"a citizen of the country, if he does not make his commentary a cloak for malice and",
"slander. A writer in a public paper has the same right as any other person, and it is his",
"privilege, if indeed it is not his duty, to comment on the act of public men which",
"concern not himself only but which concern the public, and the discussion of which is",
for the public good. And where a person makes the public conduct of a public man the,
"subject of comment and it is for the public good, he is not liable to an action if the",
"comments are made honestly, and he honestly believes the facts to be as he states",
"them, and there is no wilful misrepresentation of fact or any misstatement which he",
"must have known to be a misstatement, if he had exercised ordinary care.86. In order",
"that a comment may be fair (a) it must be based on facts truly stated, (b) it must not",
impute corrupt or dishonourable motives to the person whose conduct or work is,
"criticised except in so far as such imputations are warranted by the facts, (c) it must be",
"the honest expression of the writer's real opinion made in good faith, and (d) it must be",
"for the public good. The question to be considered in such cases is, would any fair",
"man, however prejudiced he might be, or however exaggerated or obstinate his views",
"may be, have made the criticism.87.",
Any opinion expressed in good faith made by a public servant would not amount to,
offence of defamation when public servant was acting in discharge of public functions.,
"According to section 21 of the IPC, 1860, clause fifth, a member of Panchayat assisting",
"a Court of justice is within the scope of definition of ""public servant"". Hence, opinion",
expressed by member of Panchayat in good faith to assist Court of Justice does not,
amount to defamation.88.,
Those who fill a public position must not be too thin skinned in reference to comments,
made upon them. Whoever fills a public position renders himself open to attack. He,
"must accept an attack as a necessary, though unpleasant, appendage to his office.89.",
"The law of defamation under the IPC, 1860 cannot be equated with that of contempt of",
Court in general terms.90. The Court did not accept the proposition that a reply,
submitted to a contempt notice can in no case amount to contempt of Court in the light,
of the second exception to section 499.91.,
[s 500.23] Exception 3.—,
The conduct of publicists who take part in politics or other matters concerning the,
"public can be commented on in good faith. M, a medical man and the editor of a",
"medical journal, said in such journal of an advertisement published by H, another",
"medical man, in which H solicited the public to subscribe to a hospital of which he was",
surgeon in charge stating the number of successful operations which had been,
"performed, that it was unprofessional. It was held that in as much as such",
"advertisement had the effect of making such hospital a ""public question"", M was within",
"the third, sixth and ninth Exceptions.92. A newspaper carried a letter to the editor",
stating certain facts about a co-operative hospital to the effect that there were,
embezzlements; female nurses were harassed if they refused to attend night duty and,
that the President signed only convenient vouchers. It was held that this was an,
assertion of facts and not an expression of opinion. The mere fact that the letter,
demanded an inquiry would not convert the factual assertion into an opinion. The third,
Exception was not applicable.93.,
Where the published statement was that the Marwari community had no faith and love,
"towards India, their mother land, it was held that this was not sufficient to constitute",
the offence of defamation. The process issued by the magistrate was liable to be,
quashed.94.,
[s 500.24] Comparative Advertisement.—,
"A commercial advertisement is a form of speech and ""Commercial speech"" is a part of",
the freedom of speech and expression guarantee under Article 19(1)(a) of the,
Constitution.95. Comparative advertising is advertisement where a party advertises his,
goods or services by comparing them with goods and services of another party. This is,
generally done by either projecting that the advertiser's product is of same or superior,
quality to that of the compared product or by denigrating the quality of the compared,
product. The advertiser has right to boast of its technological superiority in comparison,
with product of the competitor. He can declare that his goods are better than that of his,
"competitor. However, while doing so, he cannot disparage the goods of the competitor.",
"Therefore, if the advertising is an insinuating campaign against the competitor's",
product such a negative campaigning is not permissible.96. The allegation was that,
advertisement published by petitioner along with Associated Traders at instance of,
petitioner disparaging respondents business. The Associated Traders had admitted,
that alleged advertisement was taken out by them on their own and Petitioner,
"Company had nothing to do with that. Offence under section 500 IPC, 1860 is not made",
out against the petitioner.97.,
[s 500.25] Exception 4.—,
Where there are judicial proceedings before a properly constituted judicial tribunal,
"exercising its jurisdiction in open Court, then the publication, without malice, of a fair",
and accurate report of what takes place before that tribunal is privileged.98. Though the,
publication of such proceedings may be to the disadvantage of the particular individual,
"concerned, yet it is of vast importance to the public that the proceedings of Courts of",
Justice should be universally known. The general advantage to the country in having,
these proceedings made public more than counterbalances the inconvenience to the,
private persons whose conduct may be the subject of such proceedings.99. It is,
"immaterial whether the proceedings were ex parte or not,100. or whether the Court had",
jurisdiction or not.101. But a report of judicial proceedings cannot be published if the,
"Court has prohibited the publication of any such proceedings,102. or where the subject-",
matter of the trial is obscene103. or blasphemous.104.,
[s 500.26] CASE.—,
"A trustee of a temple was charged with defamation, the alleged defamatory statement",
"being that the complainant, who performed the worship in the temple, had been",
convicted and sent to jail for the theft of idols belonging to the temple. At the time,
"when the statement was made, an appointment in connection with the temple was in",
question. It was held that the trustee was justified in making the statement either in the,
interest of the temple or because the statement was no more than a publication of the,
result of proceedings in a Court of Justice.105.,
[s 500.27] Exception 5.—,
The administration of justice is a matter of universal interest to the whole public. The,
"judgment of the Court, the verdict of jury, the conduct of parties and of witnesses, may",
all be made subjects of free comment. But the criticism should be made in good faith,
and should be fair. It must not wantonly assail the character of others or impute,
"criminality to them. But in commenting on such matters, a public writer, as much as a",
"private writer, is bound to attend to the truth, and to put forward the truth honestly and",
in good faith and to the best of his knowledge and ability. It is not to be expected that in,
discharging his duty of a public journalist he will always be infallible. His judgment may,
"be biased, one way or the other, without the slightest reflection upon his good faith;",
"and, therefore, if his comments are fair, no one has a right to complain.106.",
[s 500.28] Exception 6.—,
The object of this Exception is that the public should be aided by comment in its,
judgment of the public performance submitted to its judgment. All kinds of,
performances in public may be truly criticised provided the comments are made in,
good faith and are fair. Liberty of criticism is allowed; otherwise we should neither have,
purity of taste nor of morals. Good faith under this Exception requires not logical,
infallibility but due care and attention.107.,
[s 500.29] Exception 7.—,
"This Exception allows a person under whose authority others have been placed, either",
"by their own consent or by the law, to censure, in good faith, those who are so placed",
"under his authority, so far as regards the matter to which that authority relates.108. But",
if this privilege is exceeded in any way the offence will be established. A man may in,
good faith complain of the conduct of a servant to the master of the servant even,
"though the complaint amounts to defamation, but he is not protected if he publishes",
"the complaint in a newspaper. A spiritual superior, in pronouncing and publishing a",
"sentence of excommunication, may be protected by privilege so long as the publication",
is not more extensive than is required to effectuate the purpose for which the privilege,
is conceded to him for the censure of a member of the sect in matters appertaining to,
religion or the communication of a sentence he is authorized to pronounce to those,
who are to guide themselves by it.109. Where the complainant was dismissed from,
service on the allegation of theft of his master's property after a full domestic enquiry,
"in which the complainant was given an opportunity to defend himself, the finding of",
such a domestic enquiry saying that the allegation was true could not form the basis of,
"defamation case as it is fully protected by Exceptions 7 and 8 of section 499, IPC,",
1860. To hold otherwise would amount to paralysing the administration of justice.110.,
[s 500.30] CASE.—Imputation made by person in authority.—,
"The allegation was that accused, principal of a medical college made compliant",
"against complainant, doctor that she was not taking interest in teaching or attending",
"hospital, etc., and that she was more worried about her income from nursing home. It",
was held that words mentioned in complaint were not with intention to defame the,
complaint or harm her reputation. Compliant was made within idea to bring about,
"betterment in college. Proceedings under section 500 IPC, 1860 is liable to be set",
aside.111.,
[s 500.31] Exception 8.—,
Eighth Exception to section 499 provides that it is not defamation to prefer in good,
faith an accusation against any person to any of those who have lawful authority over,
"that person with respect to the subject matter of accusation. In the present case, the",
accused No. 1 and other members of Society approached the police because,
"admittedly, the letter received by them contained some obscene material and",
defamatory statement against the daughter of the accused No. 1 and they expected,
"guidance, which could include appropriate action against the culprit. It is clear that the",
"case is clearly covered by Exception 8 and no case under section 500 IPC, 1860 could",
be made out.112. In order to establish a defence under this exception the accused,
would have to prove that the person to whom the complaint was made had lawful,
"authority over the person complained against, in respect of the subject-matter of the",
accusation.113. To obtain the protection given by this Exception (1) the accusation,
"must be made to a person in authority over the party accused, and (2) the accusation",
must be preferred in good faith.114. Defamatory averments made in a plaint are not,
absolutely protected in a criminal proceeding for defamation.115.,
[s 500.32] CASES.—,
The accused had lodged a report with the police contending that the complainant had,
poured acid on the coconut trees and had damaged the same and he had asked the,
police to take action against the said complaint. According to the complainant the said,
complaint damaged his reputation. It was contended that the case would be covered,
by Exceptions 8 and 9 of section 499 and the accused sought to quash the,
"proceedings under section 500 IPC, 1860. The High Court found the petition meritless",
and had dismissed it. The Supreme Court held that:,
for the purpose of bringing his case within the purview of the Exceptions 8 and 9 appended,
"to section 499 of the Penal Code, it would be necessary for the appellant to prove good faith",
for the protection of the interests of the person making it or of any other person or for the,
public good. It is now a well-settled principle of law that those who plead exception must,
"prove it. The burden of proof that his action was bona fide would, thus, be on the appellant",
"alone. At this stage, in our opinion, it would have been premature for the High Court to",
"consider the materials placed by the, appellant before it so as to arrive at a definite",
conclusion that there was no element of bad faith on the part of the appellant in making the,
said complaint before the police authorities.116.,
"[s 500.33] Exception 9.—Good faith, individual interest or public good.—",
This Exception posits that the person to whom the communication is made has an,
interest in protecting the person making the accusation. Besides the bona fides of the,
"person making the imputation, the person to whom the imputation is conveyed must",
have a common interest with the person making it which is served by the,
communication.117. The interest of the person referred to in this Exception has to be,
real and legitimate when communication is made in protection of the interest of the,
person making it. The privilege extends only to a communication upon the subject with,
respect to which the privilege extends and the privilege can be claimed in exercise of,
the right or safeguarding of the interest which creates the privilege.118. The regional,
manager of a bank issued confidential circular to branch managers of his region,
advising them to be vigilant while dealing with persons included in the list including the,
complainant. The circular was issued in his official capacity in public interest and under,
instructions of the Central office. The Court said that the circular was covered by,
"Exception 9. Therefore, even if the allegations made in the complaint were true, no",
offence would be made out under section 500.119.,
This exception relates to private communication which a person makes in good faith,
for the protection of his own interest. This exception covers not only such allegations,
of facts as can be proved true but also expression of opinions and personal inferences.,
It has been incorporated to protect the interests of the parties in their business,
"transaction which are generally done bona fide and, therefore, the rule of public good on",
"which this principle is based is, that honest transaction of business and social",
intercourse would otherwise be deprived of the protection which they should enjoy.,
Whether any imputation made is with a motive or mala fide intention to lower the,
reputation or is made in good faith is to be determined from the facts and,
"circumstances of the case. Undisputedly, the requirement of good faith and public",
"good, both, are to be satisfied and the failure to prove good faith would exclude the",
application of Exception 9 in favour of the accused even if the requirement of public,
good is satisfied. The words 'good faith' as appearing in exception 9th not only require,
logical infallibility but also due care and attention.120.,
"This Exception refers to any imputation made in good faith, whereas the first Exception",
applies only to true imputation made for the public good. That he acted in good faith,
must be proved by the accused.121. Question of good faith is a question of fact and,
has to be decided in course of the trial and at the initial stage. The journalists do not,
enjoy any special privilege.122.,
"In determining the question of good faith, regard should be to the intellectual capacity",
"of the accused, his predilections and the surrounding facts.123.",
Where a rustic villager objected to the appointment of the complainant as a village,
munsiff in the bona fide belief that he was a rowdy and as such undesirable for a public,
"post like this, it was held that he acted in good faith and was protected by this",
Exception.124.,
In order to establish good faith and bona fides it has to be seen first the circumstances,
"under which the defamatory matter was written or uttered; secondly, whether there was",
"any malice; thirdly, whether the accused made any inquiry before he made the",
"allegations; fourthly, whether there are reasons to accept the version that he acted with",
care and caution and finally whether there is preponderance of probability that the,
accused acted in good faith.125.,
The burden lies on the person accused to prove the bona fide aspect of his publication.,
Cross-examination of the complainant can be used as a device for establishing good-,
faith. An imputation was made in a newspaper item that the complainant lady doctor,
had duped the Government by presenting false transfer allowance bills. The lady,
doctor's sole testimony that the publication harmed her reputation was held to be not,
sufficient to sustain her complaint. The accused showed that the publication was in,
good faith and in public interest.126.,
Where the agreement for selling their properties for settling their dues was signed by,
the accused persons and registered before the Sub-Registrar in the presence of the,
accused but subsequently a publication in the newspaper was made by the accused,
"after about two and a half months that the agreement was executed under compulsion,",
it was held that the publication was not made in 'good faith' and could not be brought,
under Exception 9 of section 499.127.,
The ninth Exception to section 499 provides that it is not defamation to make an,
imputation on the character of another provided that the imputation be made in good,
"faith for the protection of the interests of the person making it, or of any other person,",
or for the public good. Even if it is assumed that the accused No. 1 and other accused,
made the imputation against the respondent No. 1 that he had written the letters and,
"thus, that imputation was made against his character, still that was made in good faith",
because they wanted protection of the interest of the members of the family of,
accused No. 1 and particularly his daughter. They did not approach any unconnected,
"person, but police who could protect the interest of the accused No. 1 and his family",
"members. In view of the legal position and the facts, which are clear from the",
"complaint and the documents submitted with the complaint, it is clear that the case is",
"clearly covered by Exceptions 8 and 9 and no case under section 500 IPC, 1860 could",
be made out.128.,
[s 500.34] Club committee.—,
"The committee members of a social club, even if wrong, are given protection under this",
"Exception, without which it would be impossible for such a body to function. Where the",
"respondent, who was the wife of a member of a social club and was privileged to use",
"the club, preferred a complaint against the members of the committee for defaming",
"her in a letter addressed by them to her husband, it was held that as the committee had",
"acted in good faith, even if they were mistaken they were protected by this",
Exception.129.,
[s 500.35] Communication by member of caste.—,
There is a dividing line between the passing of a resolution at a caste meeting and its,
communication by the authorities of the caste to its members in the discharge of their,
social duty. If any member of a caste publishes to all its members a caste resolution in,
such discharge of duty the law will hold the occasion of the publication to be privileged.,
"But there must be good faith on the part of the member who publishes, that is, it must",
be proved that the publication was made with due care and attention.130. There must,
"not be excessive publication, e.g., publication in a newspaper.131. Where a libellous",
"communication is made regarding a member of a caste, the mere fact that the person",
making such communication is a member of a caste will not of itself suffice to make,
the communication privileged.132. A person making defamatory expressions for the,
"protection of his son's interest is not privileged, unless the imputation is made in good",
faith.133.,
"[s 500.36] Privileges of Judges, etc.—",
"The privileges of parties, counsel, attorney, pleader and witnesses come under this",
"Exception. So also, statements made in pleadings and reports to superior officers are",
"protected by it. (As to civil actions, see the author's Law of Torts, 19th Edn; Chapter",
XIII).,
"In India the law regarding defamatory statements, made in the course of judicial",
"proceeding, by judges, counsel or pleaders, witnesses and parties is lacking in",
uniformity. The High Court of Madras in earlier cases adopted the English rule of,
absolute immunity in all cases. The Bombay High Court has not followed the English,
rule in cases of criminal prosecution on the ground that English law could not be,
resorted to where it went beyond the terms of section 499: but in civil actions it has,
followed the dictum of the Privy Council in Baboo Gunnesh Dutt Singh v Mugneeram,
Chowdhry.134. The Allahabad High Court has gone a step further and held that cases of,
defamation under the Code as well as civil suits for damages must be decided in,
"accordance with the provisions embodied in the IPC, 1860 and the Indian Evidence Act.",
The Calcutta High Court has held that the liability of a person prosecuted for,
"defamation must be determined by the application of the provisions of the IPC, 1860",
and not otherwise.135. The Patna High Court has adopted the view of the Calcutta High,
Court.136.,
"[s 500.37] Counsel, pleader, etc.—",
"Where the accused, father of the complainant, denied through a lawyer's notice that the",
complainant was his son imputing unchastity to his mother and as such was not,
"entitled to any family property, it was held that the communication was protected under",
"the 9th Exception to section 499, IPC, 1860, and the typing of that notice by the lawyer's",
clerk also did not constitute publicity.137.,
The Kerala High Court has held that counsel who has signed the pleading of his client,
can rely on this Exception.138.,
[s 500.38] Witness.—,
The Bombay High Court has in a Full Bench case laid down that relevant statements,
made by a witness on oath or solemn affirmation in a judicial proceeding are not,
"absolutely privileged on a prosecution for defamation, but are governed by the",
provisions of section 499.139.,
The Allahabad High Court in a Full Bench case held that a witness could be prosecuted,
for defamatory statements concerning a person unless he showed that the statements,
fell under one of the Exceptions to this section.140.,
"The Nagpur High Court had followed the Bombay, the Calcutta and the Allahabad High",
Courts and held that a person giving evidence in a Court of law is not entitled to an,
absolute privilege in respect of statements which he makes and is consequently not,
immune from a complaint of defamation by reason of words uttered on oath in the,
witness-box.141.,
"The Madhya Pradesh High Court followed the Bombay, the Calcutta and the Nagpur",
High Courts.142.,
[s 500.39] Pleadings.—,
Authority is strongly against the absolute immunity from prosecution for defamatory,
"statements contained in applications, pleadings and affidavits. The Bombay High Court",
has held that statements made in a written statement filed by the accused are not,
absolutely privileged but are governed by the provisions of this section.143. The,
allegation was that the averments contained in the pleadings and oral evidence in a,
suit filed by the accused constituted defamatory statements. The Court held that on,
"reading of Exception 9 to section 499 of the IPC, 1860 the alleged imputations",
contained in pleadings and evidence in civil suit OS No. 966 of 1998 and AS No. 155 of,
"2004 are covered by Exception 9 of section 499 of the IPC, 1860, even assuming that",
the imputations are prima facie defamatory in nature.144.,
The Madras High Court has held in a Full Bench case that a defamatory statement in a,
complaint to a Magistrate is not absolutely privileged.145.,
"The Patna High Court had held, that a defamatory statement, whether on oath or",
"otherwise, falls within section 499 and is not absolutely privileged. Where in a plaint the",
"accused described the complainant (defendant No. 3) as the ""kept woman"" of",
"defendant No. 1 without any foundation, it was held that he was guilty of",
defamation.146.,
[s 500.40] Vicarious liability.—,
A defamatory letter was issued on the pad of a partnership firm. The letter was signed,
by one of the partners. The complainant in his examination before the Court did not say,
on oath anything against the rest of the partners who had not signed the letter. The,
Court said that such other partners who had not signed could not be vicariously held,
liable with the signing partner.147.,
[s 500.41] Communications with counsel.—,
Communication with one's counsel for legal advice is not a publication. The Court,
distinguished the case from the Supreme Court decision in MC Vergheese v TJ,
"Poonan.148. In this case, a husband's letters to his wife contained defamatory remarks",
about her father. The father's proceedings against the husband were allowed because,
those letters amounted to a publication. But a communication between a client and his,
counsel is not a publication because of the intimate relationship between them. The,
counsel has no separate existence from the client in matters relating to legal duties.,
Communication to the council is communication to the client.149.,
[s 500.42] Reports.—,
"The report of an officer, in the execution of his duty, under his superior's orders, which",
"contains defamatory imputations against others, but which does not appear to have",
been made recklessly or unjustifiably is covered by this Exception. But a totally false,
report will not be protected.150.,
[s 500.43] Complaint through power of attorney.—,
The aggrieved person was employed in a foreign country. A complaint filed through a,
"power of attorney was held as not offending the provisions of section 199(1), Cr PC,",
1973 as the complainant suffered from the infirmity of being away in a foreign,
country.151.,
[s 500.44] Exception 10.—,
This Exception protects a person giving caution in good faith to another for the good of,
"that other, or of some person in whom that other is interested or for the public good.",
[s 500.45] Complaint by aggrieved person necessary.—,
No Court shall take cognizance of this offence except upon a complaint made by the,
"person aggrieved (section 199 Cr PC, 1973). The words ""person aggrieved"" does not",
"mean ""person defamed"". The words ""person aggrieved"" has a wider connotation than",
"the words ""person defamed"".152.",
A complaint for defamation by the person aggrieved by it can be entertained by a Court,
notwithstanding that the accused could have been prosecuted on the same facts under,
section 182 on the complaint of a public servant. The two offences are fundamentally,
"distinct in nature, although they may arise out of one and the same statement of the",
accused. The defamatory statement does not fall within any of the Exception to section,
"499 by reason merely of the fact that it is punishable as an offence under section 182,",
or any other section of the Code; nor is this section included in the list of sections,
"contained in section 195(1)(b) of the Cr PC, 1973.153. Where the imputations were",
"against the managing director of a society, the society was held to be not an aggrieved",
"person and, therefore, had no locus standi to file a complaint.154.",
"A newspaper published extracts from books written on a former Prime Minister,",
imputing charges of corruption against him and also his family members including his,
"sons, daughter and wife. It was held that his sons could be said to be aggrieved",
persons. A complaint filed by one of the sons was not to be quashed.155.,
The continuation of the proceedings even after the death of the complainant has been,
held to be not proper.156. Where the allegation in the complaint was that the Kerala,
"Police had been defamed, the Court said that Kerala Police was not a definite and",
"determinable body and, therefore, a member of the Kerala Police was not a person",
affected by the defamatory statement and his complaint was not maintainable.157.,
When the statements in question are not directed against any person or against an,
"identifiable group of individuals, the complainants cannot be said to be an aggrieved",
persons. The complainants have alleged defamation in respect of imputations against,
"the character of Tamil-speaking women, which could be viewed as a class of persons.",
"However, the appellant's remarks did not suggest that all women in Tamil Nadu have",
engaged in pre-marital sex. In fact her statement in News Magazine did not refer to any,
specific individual or group at all.158.,
[s 500.46] Complaint by director of company.—,
"Locus standi.—The words ""some person aggrieved"" do not make it necessary that the",
complaint should be made by the very person who has been defamed. In the case of an,
"imputation against a company, a director of the company would fall within the words",
"""some person aggrieved"". He can file a complaint.159.",
[s 500.47] Complaint by advocate.—,
False allegations were made in a newspaper against the Commissioner of,
Endowments. A complaint filed by an Advocate was held to be non-maintainable being,
not an aggrieved person.160.,
[s 500.48] Employer—,
Labour.—Defamatory statements were made against retrenched workmen in the,
counter filed by the management. Some of the statements were repeated on different,
dates before the labour Court and labour officer. The Court said that the question of,
limitation could not be decided until the starting point of the offence was known and,
that had to be decided at the trial.161. The Court further said that aspects of good faith,
in the utterances could also be decided only after evidence.162.,
[s 500.49] President of Municipality.—,
"The President of a Municipality is not a 'person aggrieved', within the meaning of",
"section 199 of the Cr PC, 1973, by the defamations of his subordinate officers.163.",
[s 500.50] Complaint against Juristic person.—,
"Simply because the accused is a corporate body, it cannot be said that it cannot",
"commit an offence of defamation as defined under section 499 IPC, 1860.164.",
"Section 499, IPC, 1860, is an offence involving personal malicious intent, which is",
evident from the fact that one of the essential ingredients is either intention to harm or,
knowledge or reasons to believe that such imputation will harm the reputation of the,
"other. An artificial/juristic person cannot be prosecuted for offence under section 500,",
"IPC, 1860, for such an artificial/juristic person cannot be attributed with any malicious",
intention which can be attributed only to a living person. Chief Educational Officer being,
"an artificial/ juristic person prosecution against him for offence under section 500, IPC,",
1860 would not be maintainable.165.,
[s 500.51] Punishment.—,
"The accused, an editor of a weekly, published an article in his paper making defamatory",
"allegation against the petitioner, who was a Class I Officer and belonged to a",
respectable business family. The editor made no amends till conviction. Sentence of,
"simple fine was enhanced to RI of two months and fine of Rs. 2,000.166.",
"In a case of defamation, the revision petition for enhancement of the sentence was",
filed seven years after the commission of the offence. It was held that delay in filing the,
revision cannot be a ground for not to enhance the sentence when the accused had not,
made any amends for his criminal act.167. Where the utterances of the accused in a,
"meeting were proved to harm the reputation of the complainant, his conviction under",
section 500 was held to be proper.168.,
For the publication of defamatory matter in a newspaper the sentence awarded was,
that of imprisonment till the rising of the Court and fine of Rs. 500. It was held to be too,
low and inadequate considering the damage caused to the reputation of the,
"complainant. The fine amount was accordingly enhanced to Rs. 10,000.",
[s 500.52] Quashing of complaint.—,
There were allegations in a private complaint that the respondents made imputations,
"against the complainant in applications made under section 436, Cr PC, 1973. The",
sworn statements and documents produced showed that the imputations were made,
with the intention or knowledge or having reason to believe that they will harm,
"reputation. Thus, a prima facie was made out. The High Court could not at that stage",
say that there was no reasonable prospect of conviction at the trial. Questions of good,
faith and of intention could be examined on the basis of evidence at the trial. The trial,
must go on. The quashing of the complaint was not proper.169.,
[s 500.53] Application of exceptions in pre-trial stage.—,
"The Supreme Court in Rajendra Kumar Sitaram Pande, v Uttam,170. held that issuing of",
process against the accused for the offence punishable under section 499 punishable,
"under section 500 of the IPC, 1860 can be questioned in higher Courts. Ultimately, the",
Supreme Court quashed proceedings relating to prosecution of such a case in that,
"reported decision by applying Exception 8 to section 499 of the IPC, 1860. Therefore, it",
cannot be said that application of exception cannot be considered at pre-trial stage and,
"by invoking section 482 of the Cr PC, 1973.171. In Vedurumudi Rama Rao v Chennuri",
"Venkat Rao,172. Court considered applicability of Exception 9 to section 499 of the IPC,",
1860 and held that truth of imputation need not be probed by such accused while,
claiming privilege under Exception 9; and finally quashed proceedings in criminal case,
"relating to the offence punishable under section 500 of the IPC, 1860. The Gujarat High",
"Court in Darusing Durgasing v State of Gujarat,173. followed the above said reported",
decision of the Supreme Court and quashed criminal proceedings for the offence,
"punishable under section 500 of the IPC, 1860 in view of Exceptions 7, 8 and 9 to",
"section 499 of the IPC, 1860. In an examination fact situation, the Bombay High Court",
"in Valmiki Faleiro v Mrs. Lauriana Fernandes,174. went to the extent of holding a paper",
publication containing certain imputations as one saved by Exception 9 because,
intention of the accused was predominantly to protect his rights in the property and not,
"to harm reputation of the complainant. In Jeffrey J Diermeier v State of WB,175. it was",
"pleaded that in the light of Explanation 4 as well as Tenth Exception to section 499 IPC,",
"1860, the allegations in the complaint did not constitute an offence of defamation",
"punishable under section 500 IPC, 1860. But the Supreme Court held that the mere plea",
"that the accused believed that what he had stated was in ""good faith"" is not sufficient to",
accept his defence and he must justify the same by adducing evidence. Court found it,
difficult to hold that a case for quashing of the complaint under section 482 of the,
Code has been made out.,
[s 500.54] Jurisdiction.—,
The Courts at the place of printing and publication of a newspaper as well as those at,
the place of distribution have jurisdiction to entertain a complaint.176. The respondent,
"is said to have given an interview to the Newspaper ""Economic Times"" intending it to be",
"published and to be read by public. Therefore, though the act of making the defamatory",
statement during the interview was done at a place outside the jurisdiction of the,
"Court, prosecution can be launched in Courts exercising jurisdiction over any one of the",
places wherein circulation of the paper is made.177.,
[s 500.55] Cognizance on Police report.—,
"In Shiv Kumar Agarwal v State of Meghalaya,178. Gauhati High Court examined the",
question whether a Magistrate can take cognizance of a non-cognizable offence,
"punishable under section 500, IPC, 1860 on the basis of the police report submitted by",
"the police under section 173(2), Cr PC, 1973 while investigating both a cognizable",
"offence and a non-cognizable offence under section 155(4), Cr PC, 1973 even after the",
accused is discharged from the cognizable case. It is held that as one of the offences,
"alleged against the petitioner was a cognizable offence, namely, section 505(2), IPC,",
"1860, by virtue of the legal fiction introduced in section 155(4), Cr PC, 1973, the case",
was deemed to be a cognizable offence. Once the case was deemed to be a,
"cognizable offence, there was no legal impediment in investigating the case by the",
"police. After the case was investigated by the police, the charge-sheet was submitted",
"by them to the learned Magistrate under section 173, Cr PC, 1973 for trying the",
"petitioner under section 505 (2)/500, IPC, 1860. However, the charge made against the",
"petitioner under section 505(2), IPC, 1860 was quashed by this Court on the ground",
"that no prosecution sanction under section 196 (1A), Cr PC, 1973 was obtained by the",
police. The net result is that the trial Court had to proceed with consideration of the,
"charge under section 500, IPC, 1860 and, after hearing the parties, framed the charge",
accordingly by rejecting the prayer of the petitioner for dropping the charge against,
him.179.,
"In the defamation matter, issuance of process after having examination of defamatory",
"material with reaction of the public, would certainly be sufficient to satisfy the test of",
"holding the enquiry under Section 202, Cr PC, 1973.180.",
[s 500.56] Section 211 and Section 500.—,
Section 211 imposes a punishment in case of a false charge or offence made with the,
"intent to injure someone before any Court of law, whereas section 500 provides for",
punishment in case of a defamation of a person by any one. Defamation has been,
"defined under section 499 which provides inter alia whoever, by words either spoken or",
"intended to be read, or by signs or by visible representations, makes or publishes any",
"imputation concerning any person intending to harm, or knowing or having reason to",
"believe that such imputation will harm, the reputation of such person, is said, except in",
"the cases hereinafter excepted, to defame that person. Making a false complaint",
before a Court of law would amount to committing fraud on Court. It is for the Court to,
proceed against the erring person. The provision has been made to preserve the,
sanctity of the Court. Section 500 gives right to sue to a person who is defamed within,
the meaning of section 499 by the conduct of the accused. These two provisions are,
totally distinct and can be tried in absence of each other.181.,
"6. Note R, p 175.",
7. It is not necessary to incorporate the whole of the published matter in a complaint. A,
complaint was not dismissed only on the ground that the matter under complaint was,
"presented not in the body of the complaint, but in an attached document. T Kunhambu v A",
"Sojath, 1989 Cr LJ 1022 (Ker), following Balraj Khanna v Motiram, 1971 Cr LJ 1110 (SC). The",
"complaint must be made by the party aggrieved. His wife is not an aggrieved person and,",
"therefore, her complaint is not maintainable. Nazeem Bavakunju v State of Kerala, 1988 Cr LJ",
"487 (Ker). MN Meera v AC Mathew, 2002 Cr LJ 3845 (Ker), the name of the complainant was not",
mentioned by the accused while making the alleged defamatory statement. The complaint,
"should not have been thrown overboard on that ground alone. KM Selvaraj v A Amarlal, 2002 Cr",
"LJ 3811 (Mad), defamatory statements in a circular against members and president of an",
association regarding manipulation of accounts and misappropriation of funds. One of the,
signatories was a chartered accountant who had checked the accounts. The CA applied for,
dropping of his name because he was only a signatory. His request was accepted. It was held,
that the order discharging him was not proper. All accused persons had to face the,
consequences of the defamatory statement in the circular.,
"8. Standard Chartered Bank v Vinay Kumar Sood, 2010 Cr LJ 1277 (Del).",
"9. Bacon's Abrid, vol IV, p 457.",
"10. Sunilakhya v HM Jadwet, AIR 1968 Cal 266 [LNIND 1967 CAL 167] .",
"11. S Nihal Singh v Arjan Das, 1983 Cr LJ 777 (Del); see also DN Rao v RD Bhagvandas, 1986 Cr",
"LJ 888 (AP). M Chandran v F Fanthome, 2003 Cr LJ 2173 (Sik), complainant had full knowledge",
"of the document which was quite old, no witness cited, failure to make out defamatory nature of",
"the remarks, the accused discharged. Period of limitation had also expired and no condonation",
was sought.,
"12. Varnakote Illath v Kotalmana Keshavan, (1900) 1 Weir 579.",
"13. SS Sanyal v KVR Nair, 1987 Cr LJ 2074 (Cal), relying on TJ Ponnel v MU Verghese, AIR 1967",
Ker 228 [LNIND 1966 KER 242] : 1968 Cr LJ 1511 . It is different if the employee himself goes,
round showing the notice to others. Such notice comes under 9th exception being necessary to,
protect the employer's interest.,
"14. Boxsius v Goblet Freres, (1894) 1 QB 842 . Other matters of the same kind, Pullman v Walter",
"Hill, (1891) 1 QB 524 , dictation by the managing director of a company to his short-hand steno,",
"and after being transcribed, sent to the plaintiff, held to be a publication, but not followed in",
"subsequent cases. See Edmondson v Birch, (1907) 1 KB 371 and Sukhdeo Vithal v Prabhakar",
"Sukhdeo, 1974 Cr LJ 1435 (Bom).",
"15. PR Ramakrishnan v Subbaramma, AIR 1988 Ker 18 [LNIND 1986 KER 395] : 1988 Cr LJ 124 .",
"But see Rev Fr Bernad Thaltil v Ramchandran Pillai, 1987 Cr LJ 739 (Ker), notice containing",
libellous imputations of misappropriation.,
"16. Sadashiv Atmaram, (1893) 18 Bom 205. In BP Bhaskar v BP Shiva, 1993 Cr LJ 2685 (Mad), it",
was held that scurrilous allegations or imputations contained in notices exchanged between,
parties do not amount to 'publication' under section 499. The court also held that a reply to the,
notice sent to the party's advocate containing defamatory statements of the party is not,
publication. It is a communication to the party himself.,
"17. Taki Husain, (1884) 7 All 205 (FB).",
"18. Sukhdeo v State, (1932) 55 All 253 .",
"19. Nagrathimam (Dr.) v M Kalirajan, 2001 Cr LJ 3007 (Mad).",
"20. Sankara v State, (1883) 6 Mad 381.",
"21. Thiagaraya v Krishnasami, (1892) 15 Mad 214.",
"22. Greene v Delanney, (1870) 14 WR (Cr) 27; Abdul Hakim v Tej Chandar, (1881) 3 All 815 .",
"23. Raja Shah, (1889) PR No. 14 of 1889.",
"24. Wenman v Ash, (1853) 13 CD 836.",
"25. Wennhak v Morgan, (1888) 20 QBD 635 ; Dr. Jaikishen Das v Sher Singh, (1910) PR No. 10 of",
1910.,
"26. Pundit Mokand Ram, (1883) PR No. 12 of 1883.",
"27. Janardhan Damodhar Dikshit, (1894) 19 Bom 703. PM Abubacker v PJ Alexander, 2000 Cr LJ",
1168 (Ker) the source of information regarding published defamatory statement is not a,
"consideration for prosecution for defamation. M Malle Reddy v T Venkatarama, 2000 Cr LJ 1086",
"(AP), a complaint against an alleged defamatory statement published in a newspaper was not",
allowed to be quashed in the exercise of writ jurisdiction.,
"28. S Khushboo v Kanniammal, 2010 Cr LJ 2828 (SC) : AIR 2010 SC 3196 [LNIND 2010 SC 411] :",
2010 (5) SCC 600 [LNIND 2010 SC 411] .,
"29. Charmesh Sharma v State Of Rajasthan, 2012 Cr LJ 2115 (Raj).",
"30. Howard, (1887) 12 Bom 167.",
"31. Harbhajan Singh, AIR 1961 Punj 215 .",
"32. BRK Murthy v State, 2013 Cr LJ 1602 (AP); Tankasala Ashok v State of AP, 2010 Cr LJ 2074",
"(AP) where there was nothing to show that editor had control over selection of publication,",
proceedings against accused editor is liable to be quashed.,
"33. Dongar Singh v Krishna Kant, AIR 1958 MP 216 [LNIND 1958 MP 58] .",
"34. McLeod, (1880) 3 All 342 .",
"35. Ramasami v Lokanada, (1886) 9 Mad 387.",
"36. Bhagat Singh v Lachman Singh, AIR 1968 Cal 296 [LNIND 1967 CAL 189] . The chairman of a",
company which is publishing a newspaper is not liable merely by virtue of his position as such.,
"Udayam Telugu Daily v State of AP, 1987 Cr LJ 143 (AP).",
"37. AK Jain v State of Sikkim, 1992 Cr LJ 843 (Sikkim).",
"38. KV Ramesh v HC Ramesh, 2001 Cr LJ 3556 .",
"39. KM Mathew v KA Abraham, 1998 Cr LJ 327 (Ker). CB Solanki v Srikanta Parashar, 1997 Cr LJ",
"3050 (Kant), ""editor"" for the purposes of the section does not include a person described as",
"chief editor or managing director, particularly when there were no specific allegations against",
them in the complaint. The Court also explained the scope of first and ninth exception and the,
burden of proof as to publication.,
"40. McLeod, supra; Girjashankar Kashiram, (1890) 15 Bom 286. The fact that the accused did",
not know the person defamed through his newspaper is no defence. Sumatibai Vinayak Deo v,
"Nandkumar Deshpande, 1990 Cr LJ 2136 (Bom). Defamation in 1977. Appeal against acquittal",
"allowed in 1990. No further prosecution allowed. Fine of Rs. 2,000 with a direction that Rs. 1,800",
should be handed over to the aggrieved person imposed.,
"41. Gambhirsinh R Dekare v Falgunbhai Chimanbhai Patel, (2013) 3 SCC 697 [LNIND 2013 SC",
175] : 2013 Cr LJ 1757 : AIR 2013 SC 1590 [LNIND 2013 SC 175] .,
"42. Ravi Prakash v J C Diwakar Reddy, 2010 Cr LJ 2558 (AP).",
"43. P Lankesh v H Shivappa, 1994 Cr LJ 3510 (Kant).",
"44. Radhanath Rath v Birja Prasad Ray, 1992 Cr LJ 938 (Ori).",
"45. Archbold, 35th Edn, p 3633.",
"46. McCarthy, (1887) 9 All 420 .",
"47. Shibo Prosad Pandah, (1878) 4 Cal 124 .",
"48. Sirajuddin Ali v Mujtaba Ali, 2001 Cr LJ NOC 125 (AP).",
"49. Gautam Sahu v State of Orissa, 1999 Cr LJ 838 .",
"50. Government Advocate, B & O v Gopabandhu Das, (1922) 1 Pat 414. CL Sagar v Mayawati,",
"2003 Cr LJ 690 (All), the complaint was that the vice president of a political party defamed the",
complainant by stating in a public meeting that the person with long moustache in the party was,
a corrupt person. The complainant could not show that he was the only member of the party,
with long moustache. The newspaper report of the meeting did not carry any such remark. No,
offence made out.,
"51. Asha Parekh v State of Bihar, 1977 Cr LJ 21 (Pat); see also Narottamdas v Maganbhai, 1984",
"Cr LJ 1790 (Guj); Aruna Asafali v Purna Narayan, 1984 Cr LJ 1121 (Gau).",
"52. Maung Sein, (1926) 4 Ran 462.",
"53. Clerk & Lindsell on TORTS, 1701 (14th Edn 1975).",
"54. Manmohan Kalia v Yash, (1984) 3 SCC 499 [LNIND 1984 SC 101] : AIR 1984 SC 1161 [LNIND",
"1984 SC 101] . See also Sumatibai Vinayak Deo v Nandkumar Deshpande, 1990 Cr LJ 2136",
"(Bom), where the veiled expression that only ""S"" knew what happened to the bowls brought by",
"children to the school was held to be not defamatory; Lalliani v R L Rina, 1987 Cr LJ 1295 (Gau),",
a biographical account of the life of a poet mentioning a named girl as his source of inspiration,
"and depicting their love affairs, a woman by that name was not able to convince the court that",
"she was the object of the attack. But see V Subair v PK Sudhakaran (Dr), 1987 Cr LJ 736 (Ker),",
"where a medical practitioner was described as a ""professional debauch"" and of ""low moral",
"character"", the accused was held liable because the complainant was able to prove that he was",
meant to be attacked.,
"55. Parvathi v Mannar, (1884) 8 Mad 175.",
"56. Monson v Tussauds Ltd, (1894) 1 QB 671 , 692.",
"57. Chellappan Pillai v Karanjia, (1962) 2 Cr LJ 142 .",
"58. Jacob Mathew v Manikantan, 2013 Cr LJ (NOC) 62 : 2012 (3) KLT 824 .",
"59. Veeda Menezes v Yusuf Khan, (1966) 68 Bom LR 629 (SC).",
"60. Gobinda Pershad Pandey v Garth, (1900) 28 Cal 63 ; Pimento, (1920) 22 Bom LR 1224",
"[LNIND 1920 BOM 117] ; U Aung Pe, (1938) Ran 404 (FB).",
"61. Parwari, (1919) 41 All 311 .",
"62. Taki Husain, (1884) 7 All 205 , 220 (FB); J Jayalalitha v Arcot N Veerasamy, 1997 Cr LJ 4585",
"(Mad), absence of averment in the complaint that because of the imputation the complainant's",
"reputation had been lowered in the estimation of others, dismissal of the complaint was proper.",
"63. Mohan Lal v State of HP, 2011 Cr LJ 2413 (HP).",
64. Ibid.,
"65. Luckumsey Rowji v Hurban Nursey, (1881) 5 Bom 580.",
"66. South Hetton Coal Co v NE News Association, (1894) 1 QB 133 .",
"67. Ibid, p 141.",
"68. Maung Chit Tay v Maung Tun Nyun, (1935) 13 Ran 297.",
"69. Mahim Chandra Roy v Watson, (1928) 55 Cal 1280 .",
"70. Wahid Ullah Ahrari, (1935) 57 All 1012 .",
"71. Sahib Singh, AIR 1965 SC 1451 [LNIND 1965 SC 15] .",
"72. Vishwa Nath v Shambhu Nath, (1995) 1 Cr LJ 277 (All). The complainant had died and the",
proceedings were not allowed to be continued by others. The court distinguished Ashwin,
"Nanubhai Vyas v State of Maharashtra, 1967 Cr LJ 943 : AIR 1967 SC 963 where the mother of",
the deceased complainant was allowed to continue the proceedings. The court cited Raj Kapoor,
"v Narendra Noranbhai Nagardas, (1974) 15 Guj LJ 125 where the contemptuous remarks against",
Bhangi community uttered by caste Hindus were held to be not defamatory. The court said that,
"if a person were to say that all lawyers were thieves, no particular lawyer could sue him unless",
"there is something to point out to a particular individual, Eastwood v Holmes, (1858) 1 F&F 347.",
"The court also relied upon Narottamdas L Shah v Maganibhai, 1984 Cr LJ 1790 (Guj) where the",
"agitating lawyers were described as ""Kazia dalals"" (dispute brokers) and it was held that the use",
of such words in reference to the lawyers as a class could not be taken to refer to a determinate,
"or identifiable class of lawyers, namely, the lawyers who were participating in the agitation. MP",
"Narayana Pillai v MP Chacko, 1986 Cr LJ 2002 (Ker) remarks in general about Christian girls",
being used for prostitution to enable them to earn livelihood because their parents were not able,
to support them were held to be too general to be defamatory of any body. The court said that,
identity of the collection of the people will have to be established in relation to the defamatory,
"imputation. KM Mathew v TU Balan, 1985 Cr LJ 1039 (Ker) imputation against some leaders of",
teachers who were on strike was held to be not actionable.,
"73. P Karunakaran v C Jayasooryan, 1992 Cr LJ 3540 (Ker).",
"74. Amar Singh v KS Badalia, (1965) 2 Cr LJ 693 ; Shamsher Singh v State, 1982 Cr LJ NOC 167",
(Del).,
"75. J Chelliah v Rajeswari, 1969 Cr LJ 571 .",
"76. Madhuri Mukund Chitnis v Mukund Martand Chitnis, 1990 Cr LJ 2084 . The court referred to",
"Sukhdeo v State of Maharashtra, 1974 (Bom) LJ 777 : 1974 Cr LJ 1435 and Baburao Shankarrao v",
"Shaikh Biban Pahelwan, 1984 Cr LJ 350 , burden as to good faith.",
"77. U Aung Pe, (1938) Ran 404 (FB).",
"78. Jatish Chandra v Hari Sadhan, AIR 1961 SC 613 [LNIND 1961 SC 19] .",
"79. Jawaharlal Darda v Manoharao Ganpatrao, AIR 1998 SC 2117 [LNIND 1998 SC 361] : 1998 Cr",
LJ 2928,
"80. Chandrasekhara v Karthikeyan, AIR 1964 Ker 277 [LNIND 1964 KER 90] . Neelakantan",
"Kamalasanan v Achutan, 1988 Cr LJ 1212 (Ker).",
"81. Janardhan Damodhar Dikshit, (1894) 19 Bom 703.",
"82. Deivasigamani, 1977 Cr LJ NOC 110 (Mad).",
"83. Ramanand v State, (1881) 3 All 664 .",
"84. Umed Singh, (1923) 46 All 64 . Dissented in Sukhdayal v Saraswati, (936) Nag 217.",
"85. Rajendra Vishwanath Chaudhary v Nayantara Durgadas Vasudeo, 2012 Cr LJ 1363 (Bom).",
"86. E I Howard v M Mull, (1866) 1 BHC (Appx) 1xxxv, xci. Thus, the truth of the matter has not to",
be proved literally. It is sufficient if the imputation is proved to be substantially true. 1989 Cr LJ,
"1022 . Following Murlidhar v Narayandas, AIR 1914 Sind 85 : 1915-16 Cr LJ 141 ; Surajmal Mehta",
"v Horniman, AIR 1917 Bom 62 . Where it is stressed that even an exaggeration will not by itself",
"defeat this defence; Purushottam Vijay v State of MP, AIR 1961 MP 205 [LNIND 1960 MP 59] DB :",
1961 (2) Cr LJ 114 where it is observed :,
The statement of fact need only be substantially correct and need not be microscopically or,
photographically true : nor can the prosecutor fasten himself on to an inaccuracy in the detail unless,
the detail itself is such as to make substantial difference to the case.,
"87. Khare v Massani, (1943) Nag 347.",
"88. Radhelal Mangalal Jaiswal v Sheshrao Anandrao Lad, 2011 Cr LJ 2233 (Bom).",
"89. Kartar Singh, (1956) SCR 476 [LNIND 1956 SC 39] . Relying upon and citing the",
"observations of Lord Cockburn in Saymour v Butterworth, (1862) 3 F&F 372 and dicta of judges",
"in R. v Sir R Garden, (1879) 5 QBD 1 . Followed in Radhanath Rath (Dr) v Biraja Prasad Rai, 1992 Cr",
"LJ 938 (Ori), where the editor and publisher of a newspaper were held not liable as they",
happened to include a defamatory matter relying upon their reporter who had been a,
trustworthy journalist.,
"90. Arundhati Roy Re, 2002 Cr LJ 1792 : AIR 2002 SC 1375 [LNIND 2002 SC 174] (para 24).",
91. Ibid.,
"92. McLeod, (1880) 3 All 342 .",
"93. T Kunhambu v A Sojath, 1989 Cr LJ 1022 (Ker). See also Dagar Singh v Shobha Gupta, 1998",
Cr LJ 1541 (P&H).,
"94. Shatrughna Pd Sinha v Rajbhan Surajmal Rathi, 1997 Cr LJ 212 : (1996) 6 SCC 263 (SC).",
"95. Tata Press Ltd v Mahanagar Telephone Nigam Ltd, (1995) 5 SCC 139) [LNIND 1995 SC 755] :",
AIR 1995 SC 2438 [LNIND 1995 SC 755] .,
"96. Godrej Sara Lee Ltd v Reckitt Benckiser (I) Ltd, (2006 (32) PTC 307) : ( 2006 CLC 1105 ).",
"97. Nippon Sheet Glass Co Ltd v Raman Fibre Sciences Pvt Ltd, 2011 Cr LJ 2702 (Kar).",
"98. Kimber v The Press Association, (1893) 1 QB 65 , 68.",
"99. J Wright, (1799) 8 TR 293, 298.",
"100. Kimber v The Press Association, supra.",
"101. Usill v Hales, (1878) 3 CPD 319 .",
"102. Clement, (1821) 4 B & Ald. 218.",
"103. Hicklin, (1868) LR 3 QB 360.",
"104. Carlile, (1819) 3 B & Ald. 167.",
"105. Singaraju Nagabhushanam, (1902) 26 Mad 464; Maksud Saiyed v State of Gujarat, (2005) 5",
SCC 668 : (2007) 140 COMP CASES 590.,
"106. Woodgate v Ridout, (1865) 4 F&F 202, 216. See also Harbans Singh v State of Rajasthan,",
"1998 Cr LJ 433 (Raj), the word ""shatir"" might be of offending nature and objectionable but not",
necessarily defamatory. The order dropping the proceedings was not interfered with.,
"107. Abdool Wadood, (1907) 9 Bom LR 230 [LNIND 1907 BOM 6] , 31 Bom 293. See",
"Ranganayakamma v K Venugopala Rao, 1987 Cr LJ 2000 (AP), the complainant's foreword to a",
book was criticised by imputing words to the complainant himself which lacked good faith and,
showed malice.,
"108. Note R, p 183.",
"109. Sankara v State, (1883) 6 Mad 381, 395, 396.",
"110. ADM Stubbings v Shella Muthu, 1972 Cr LJ 968 (Ker).",
"111. Dr. Vishnu Dutt Agarwal v State of UP, 2012 Cr LJ 3595 (All).",
"112. Yadav Motiram Patil v Rajiv G Ghodankar, 2011 Cr LJ 528 (Bom).",
"113. Kanwal Lal, AIR 1963 SC 1317 [LNIND 1962 SC 322] .",
"114. See Damodra Shenoi v PP Ernakulam, 1989 Cr LJ 2398 where it is stressed that the",
accused must prove by preponderance of probability that he laboured under good faith as,
"defined in section 52, IPC.",
"115. J Sudershan v R Sankaran, 1992 Cr LJ 2427 (Mad). The court referred to MC Verugheese v",
"TJ Ponnan, AIR 1970 SC 1876 [LNIND 1968 SC 339] .",
"116. MA Rumugam v Kittu alias Krishnamoorthy, (2009) 1 SCC (Cr) 245 : AIR 2009 SC 341",
"[LNIND 2008 SC 2186] ; Rallis India Ltd v K T Vijay Kumar, 2010 Cr LJ 2485 (AP); Nayana Jaikisan",
"Tekwani v State of Maharashtra, 2010 Cr LJ 4094 (Bom).",
"117. Kanwal Lal, AIR 1963 SC 1317 [LNIND 1962 SC 322] .",
"118. Chamanlal, (1970) 3 SCR 913 [LNIND 1970 SC 106] .",
"119. Vedurumudi Rama Rao v Chennuri Venkat Rao, 1997 Cr LJ 3851 (AP).",
"120. Standard Chartered Bank v Vinay Kumar Sood, 2010 Cr LJ 1277 (Del).",
"121. Mrs. Jinnat Ara Borbora, 1980 Cr LJ NOC (Gau).",
"122. Sewakram v RK Karanjia, 1981 Cr LJ 894 (SC) : AIR 1981 SC 514 : 1514 : (1981) 3 SCC 208",
[LNIND 1981 SC 265] .,
"123. Muhammad Gul v Haji Fazley Karim, (1929) 56 Cal 1013 .",
"124. Karuppusamy, 1974 Cr LJ 33 (Mad).",
"125. Chamanlal, supra; see also Sukra Mahato v Basudeo Kumar, 1971 Cr LJ 1168 (SC);",
"Prayagdutt, 1977 Cr LJ 1258 (MP).",
"126. Pratibha (Dr.) v State of Maharashtra, (1995) 1 Cr LJ 997 (Bom).",
"127. P Swaminathan v Lakshmanan, 1992 Cr LJ 990 (Mad).",
"128. Yadav Motiram Patil v Rajiv G Ghodankar, 2011 Cr LJ 528 (Bom).",
"129. Beckett v Norris, (1945) Mad 749.",
"130. Virji Bhagwan, (1909) 11 Bom LR 638 .",
"131. Vinayak Atmaram v Shantaram Janardan, (1941) 43 Bom LR 737 .",
"132. Cooppoosami Chetty v Duraisami Chetty, (1909) 33 Mad 67.",
"133. Abdul Hakim v Tej Chandar Mukarji, (1881) 3 All 815 .",
"134. Baboo Gunnesh Dutt Singh v Mugneeram Chowdhry, (1872) 11 Beng LR 321 (PC).",
"135. Satish Chandra Chakravarti v Ram Doyal De, (1920) 48 Cal 388 (SB).",
"136. Karu Singh, (1926) 7 PLT 587 .",
"137. Sukhdeo Vithal Pansare, 1974 Cr LJ 1435 (Bom); see also Jiban Krishna Das, 1983 Cr LJ",
NOC 39 (Cal).,
"138. Parameswara v Krishna Pillai, AIR 1966 Ker 264 [LNIND 1966 KER 11] .",
"139. Bai Shanta v Umrao Amir, (1925) 50 Bom 162 : 28 Bom LR 1 (FB), overruling Babaji, (1892)",
"17 Bom 127, and Balkrishna Vithal, (1893) 17 Bom 573.",
"140. Ganga Prasad, (1907) 29 All 685 (FB); Isuri Prasad Singh v Umrao Singh, (1900) 22 All 234 .",
"141. Chotelal v Phulchand, (1937) Nag 425.",
"142. Hemraj v Babulal, AIR 1962 MP 241 [LNIND 1961 MP 92] .",
"143. Bai Shanta v Umrao Amir, (1925) 50 Bom 162 : 28 Bom LR 1 (FB). Denial of the relationship",
of husband and wife in an eviction proceeding between the tenant and complainant was held to,
"be not defamatory, Girish Kakkar v Dr. (Mrs.) Dhanwantri, 1991 Cr LJ 5 (Del). If the words are",
"defamatory, the proceedings cannot be stayed because it is for the court to decide whether a",
"privilege is available or not. Pravinchand v Ibrahim Md, 1987 Cr LJ 1795 (Bom).",
"144. G Janardhana Reddy v A Narayana Reddy, 2010 Cr LJ 2660 (AP).",
"145. Tiruvengada Mudali v Tripurasundari Ammal, (1926) 49 Mad 728, FB overruling Venkata",
"Reddy, (1912) 36 Mad 216 (FB).",
"146. Karu Singh, (1926) 7 PLT 587 : 27 Cr LJ 1320, following Kari Singh, (1912) 40 Cal 433 .",
"147. Narendra Kapoor v Ramesh C Bansal, 1998 Cr LJ 1863 (Del).",
"148. MC Vergheese v TJ Poonan, AIR 1970 SC 1876 [LNIND 1968 SC 339] : 1970 Cr LJ 1651 .",
149. The court also distinguished the present case from its earlier decision in Rev Fr Bernard v,
"Ramachandran Pillai, 1986 Ker LT 1240 : 1987 Cr LJ 739 where in addition to the reply to the",
"complainant's counsel, the accused spread the rumour in the locality about his alleged pilferage",
as an employee.,
"150. Rajnarain Sein, (1870) 6 Beng LR (Appx) 42 : 14 WR (Cr) 22.",
"151. Fr. Thomas Maniankerikalam v Thomas J Padiyath, 2003 Cr LJ 945 .",
"152. Pat Sharpe Mrs. v Dwijendra Nath, (1964) 1 Cr LJ 367 . M S Jayaraj v Commissioner of",
"Excise, Kerala, (2000) 7 SCC 552 [LNIND 2000 SC 2302] : AIR 2000 SC 3266 [LNIND 2000 KER",
461] - 'person aggrieved'- meaning,
"153. U Aung Pe, (1938) Ran 404 (FB).",
"154. Homen Boroghain v Brahmaputra Valley Regional Handloom Weavers' Co-op Society, (1995)",
"2 Cr LJ 2357 (Gau). Viswanath v Shambhu Nath, 1995 Cr LJ 277 (All) a complaint by a member",
"of the community which was defamed in general, not maintainable. The complainant was not",
"personally hurt. MP Narayna Pillai v MP Chacko, 1986 Cr LJ 2002 (Ker) a member of the",
Christian community could not complain of a general remark against the community KM,
"Mathew v TU Balan, 1985 Cr LJ 1039 (Ker), remarks about teachers on strike, a leader could not",
complain.,
"155. KV Ramesh v HC Ramesh, 2001 Cr LJ 3556 (Kant).",
"156. Ratan Singh v Chain Singh, 2000 Cr LJ 2736 (Raj).",
"157. Sasikurnar B Menon v S Vijayan, 1998 Cr LJ 3973 (Ker).",
"158. S Khushboo v Kanniammal, 2010 Cr LJ 2828 (SC) : AIR 2010 SC 3196 [LNIND 2010 SC 411]",
": 2010 (5) SCC 600 [LNIND 2010 SC 411] ; Charmesh Sharma v State Of Rajasthan, 2012 Cr LJ",
2115 (Raj).,
"159. John Thomas v Dr. K Jagdeesan, AIR 2001 SC 2651 [LNIND 2001 SC 1323] .",
"160. Swamy Anoopananda v Bagmisri, 2000 Cr LJ 4296 (Ori).",
"161. Beem Singh v S Ramayajam, 2003 Cr LJ NOC 61 (Mad) : 2002 Mad LJ (Ori) 351.",
162. Ibid.,
"163. Beauchamp v Moore, (1902) 26 Mad 43.",
"164. Rallis India Ltd v K T Vijay Kumar, 2010 Cr LJ 2485 (AP).",
"165. Chief Education Officer, Salem v K S Palanichamy, 2012 Cr LJ 2543 (Mad). See other view in",
"Rallis India Ltd v K T Vijay Kumar, 2010 Cr LJ 2485 (AP) discussed above.",
"166. Subhash K Shah v K Shankar Bhat, 1993 Cr LJ 1296 (Kant).",
"167. Subhash K Shah v K Shankar Bhat, 1993 Cr LJ 1296 .",
"168. Pyarelal Maganlal Jaiswal v State of Maharashtra, 1996 Cr LJ 989 (Bom).",
"169. MN Damani v SK Sinha, AIR 2001 SC 2037 [LNIND 2001 SC 1149] . Rajesh Rangarajan v",
"Crop Care Fed. of India, 2010 (9) Scale 23 [LNIND 2010 SC 626] -Proceedings quashed.",
"170. Rajendra Kumar Sitaram Pande, v Uttam, 1999 Cr LJ 1620 : AIR 1999 SC 1028 [LNIND 1999",
SC 136] .,
"171. G Janardhana Reddy v A Narayana Reddy, 2010 Cr LJ 2660 ; AP Ramoji Rao, Chairman",
"Ramoji Group of Companies v State of AP, AIR 2006 SC 3384 [LNIND 2006 SC 820] : (2006) 8",
SCC 321) [LNIND 2006 SC 820] - proceedings quashed since the accused agreed to give a,
clarification in the TV channel as the news item was not the intended in any manner to defame,
or harm the reputation of the Chief Minister or his entourage of ministers and officials.,
"172. Vedurumudi Rama Rao v Chennuri Venkat Rao, 1997 Cr LJ 3851 .",
"173. Darusing Durgasing v State of Gujarat, 1999 Cr LJ 1620 : AIR 1999 SC 1028 [LNIND 1999 SC",
136] .,
"174. Valmiki Faleiro v Mrs. Lauriana Fernandes, 2005 Cr LJ 2498 .",
"175. Jeffrey J Diermeier v State of WB, (2010) 6 SCC 243 [LNIND 2010 SC 512] : (2010) 3",
SCC(Cr) 138.,
"176. KM Mathew v KA Abraham, 1998 Cr LJ 327 (Ker).",
"177. Subhiksha Trading Services Ltd v Azim H Premji, 2011 Cr LJ 2769 (Mad).",
"178. Shiv Kumar Agarwal v State of Meghalaya, 2013 Cr LJ 421 .",
"179. Shiv Kumar Agarwal v State of Meghalaya, 2013 Cr LJ 421 .",
"180. Abhijit Pawar v Hemant Madhukar Nimbalkar, AIR 2017 SC 299 [LNIND 2016 SC 614] :",
(2017)3 SCC 528 [LNIND 2016 SC 614] .,
"181. Bir Chandra Das v Anil Kumar Sarkar, 2011 Cr LJ 3422 (Cal).",
THE INDIAN PENAL CODE,
CHAPTER XXI OF DEFAMATION,
[s 501] Printing or engraving matter known to be defamatory.,
"Whoever prints 1 or engraves any matter, knowing or having good reason to believe",
"that such matter is defamatory of any person, shall be punished with simple",
"imprisonment for a term which may extend to two years, or with fine, or with both.",
COMMENT.—,
The offence under this section is a distinct offence from the one under section 500.,
The person printing or engraving defamatory matter abets the offence. This section,
makes such abetment a distinct offence. Where the content of any news item carried in,
"a newspaper is defamatory as defined under section 499 IPC, 1860, the mere printing",
of such material ' knowing or having good reason to believe that such matter is,
"defamatory' itself constitutes a distinct offence under section 501 IPC, 1860.182.",
[s 501.1] Ingredients.—,
This section requires two things:—,
1. Printing or engraving any matter.,
2. Knowledge or reason to believe that such matter is defamatory.,
1. 'Prints'.—The publisher of a newspaper in which defamatory matter is printed is,
"liable under section 500. If he is also the printer of the newspaper, the case would be",
covered by this section. But his liability under section 500 would in no way be,
"affected.183. In a case, where the Editor/owner of magazine published defamatory",
statements containing imputations without due care and attention and without making,
any attempt of verification before publication and the same was not published in good,
"faith. The court held that the charges framed against the accused under section 500,",
"501 and 502 read with section 34 IPC, 1860, stand proved.184.",
"182. Mohammed Abdulla Khan v Prakash K, AIR 2017 SC 5608 .",
"183. Ramesh Chander, AIR 1966 Punj 93 .",
"184. B R K Murthy v State Of AP, 2013 Cr LJ 1602 (AP). See also Editor, Deccan Herald v M S",
"Ramaraju, 2005 Cr LJ 2672 (Kar).",
THE INDIAN PENAL CODE,
CHAPTER XXI OF DEFAMATION,
[s 502] Sale of printed or engraved substance containing defamatory matter.,
Whoever sells or offers for sale any printed or engraved substance containing,
"defamatory matter, knowing that it contains such matter, shall be punished with",
"simple imprisonment for a term which may extend to two years, or with fine, or with",
both.,
COMMENT.—,
This section supplements the provisions of the previous section by making the seller of,
defamatory matter punishable under it.,
[s 502.1] Ingredients.—,
This section requires two essentials:—,
1. Selling or offering for sale any printed or engraved substance.,
2. Knowledge that such substance contains defamatory matter.,
THE INDIAN PENAL CODE,
"CHAPTER XXII OF CRIMINAL INTIMIDATION, INSULT AND ANNOYANCE",
[s 503] Criminal intimidation.,
"Whoever threatens another with any injury1. to his person, reputation or property, or to",
"the person or reputation of any one in whom that person is interested, with intent to",
"cause alarm to that person, or to cause that person to do any act which he is not",
"legally bound to do, or to omit to do any act which that person is legally entitled to do,",
"as the means of avoiding the execution of such threat, commits criminal intimidation.",
Explanation.—A threat to injure the reputation of any deceased person in whom the,
"person threatened is interested, is within this section.",
ILLUSTRATION,
"A, for the purpose of inducing B to desist from prosecuting a civil suit, threatens to burn",
B's house. A is guilty of criminal intimidation.,
COMMENT.—,
The offence of criminal intimidation requires either a person or another in whom he is,
specially interested to be threatened. There must be an intent to cause alarm to the,
former by a threat to him of injury to himself or to the latter. The intent itself might be,
"complete, though it could not be effected. But the existence of the interest seems",
"essential to the offence, as also and equally to the attempt to commit the offence,",
since otherwise the attempt would be to do something not constituting the offence.1,
[s 503.1] Ingredients.—,
(1) Threatening a person with any injury.,
"(a) to his person, reputation or property or;",
(b) to the person or reputation of any one in whom that person is interested.,
(2) The threat must be with intent;,
"(a) to cause alarm to that person, or",
(b) to cause that person to do any Act which he is not legally bound to do as,
means of avoiding execution of such threat; or,
(c) to cause that person to omit to do any act which that person is legally,
entitled to do as means of avoiding execution of such threat.,
"Therefore, intention must be to cause alarm to the victim and whether he is alarmed or",
not is really of no consequence. But material has to be brought on record to show that,
intention was to cause alarm to that person.2.,
1. 'Threatens another with any injury'.—The gist of the offence is the effect which the,
"threat is intended to have upon the mind of the person threatened, and it is clear that",
before it can have any effect upon his mind it must be either made to him by the person,
threatening or communicated to him in some way. The threat referred to in this section,
must be a threat communicated or uttered with the intention of its being,
communicated to the person threatened for the purpose of influencing his mind.3. The,
threat must be one which can be put into execution by the person threatening. It is not,
necessary that the injury should be one to be inflicted by the offender; it is sufficient if,
he can cause it to be inflicted by another; and the infliction of it could be avoided by,
some act or omission that the person threatening desires. Punishment by God is not,
one which a person could cause to be inflicted or the execution of which he could,
avoid.4.,
"A threat, in order to be indictable, must be made with intent to cause alarm to the",
complainant. Mere vague allegation by the accused that he is going to take revenge by,
false complaints cannot amount to criminal intimidation.5.,
[s 503.2] Criminal intimidation and Extortion.—,
Criminal intimidation is analogous to extortion. In extortion the immediate purpose is,
"obtaining money or money's worth; in criminal intimidation, the immediate purpose is",
"to induce the person threatened to do, or abstain from doing, something which he was",
not legally bound to do or omit.,
[s 503.3] Threat of injury to reputation.—,
"The accused took indecent photographs of a girl and threatened her father, in letters",
"written to him with publication of the photographs unless ""hush money"" was paid to",
him. The Supreme Court held that the accused was guilty of criminal intimidation and,
not of attempt to commit extortion.6. Where the head master of a school threatened a,
"lady-teacher that until she signed certain papers in blank he would spoil her modesty,",
the Supreme Court held that this offence as well as that of extortion were made out.7.,
Mere expression of any words without any intention to cause alarm would not be,
sufficient to bring in the application of this section.8.,
[s 503.4] Person informed about threatened injury to another must be,
interested in him.—,
A threat to commit suicide is not within the section unless the other person be,
interested in the person giving the threat.9.,
"1. Mangesh Jivaji, (1887) 11 Bom 376, 379, 380.",
"2. Amulya Kumar Behera v Nabaghana Behera, 1995 Cr LJ 355 (Ori).",
"3. Gunga Chunder sen v Gour Chunder Banikya, (1888) 15 Cal 671 , 673. See SS Sanyal v KVR.",
"Nair, 1987 Cr LJ 2074 , when the charge-sheeted employee met the chairman of the company,",
"the latter remarked to him : ""your days are numbered,"" it was not an intimidation in the context",
because the purpose must have been to tell him that his service was not going to last beyond,
numbered days.,
"4. Doraiswamy Ayyar, (1924) 48 Mad 774.",
"5. Govind, (1900) 2 Bom LR 55 .",
"6. Romesh Chandra Arora, (1960) 1 SCR 924 [LNIND 1959 SC 177] .",
"7. Chander Kala v Ram Kishan, AIR 1985 SC 1268 [LNIND 1985 SC 166] : 1985 Cr LJ 1490 :",
"(1985) 4 SCC 212 [LNIND 1985 SC 166] . See also Anuradha v State of Maharashtra, 1991 Cr LJ",
410 .,
"8. Manik Taneja v State of Karnataka, (2015) 7 SCC 423 [LNIND 2015 SC 35] .",
"9. Nubi Buksh v Must. Oomra, (1866) PR No. 109 of 1866. See also Kolla Srinivas v State of AP,",
2005 Cr LJ 2440 (AP).,
THE INDIAN PENAL CODE,
"CHAPTER XXII OF CRIMINAL INTIMIDATION, INSULT AND ANNOYANCE",
[s 504] Intentional insult with intent to provoke breach of the peace.,
"Whoever intentionally insults, and thereby gives provocation to any person, intending",
or knowing it to be likely that such provocation will cause him to break the public,
"peace, or to commit any other offence, shall be punished with imprisonment of either",
"description for a term which may extend to two years, or with fine, or with both.",
COMMENT.—,
This section provides a remedy for using abusive and insulting language. Abusive,
language which may lead to a breach of the public peace is not an offence. There must,
"be an intentional insult. Insult may be offered by words or conduct. If it is by words, the",
words must amount to something more than mere vulgar abuse.10. Mere breach of,
good manners does not constitute an offence under this section.11. If the insult is of,
such a nature that it may give provocation which might rouse a man to act either to,
"break the public peace or to commit any other offence, the offence is committed.12.",
In judging whether a particular abusive language comes within the mischief of section,
"504, Indian Penal Code, 1860 (IPC, 1860), the Court has to see what would be the effect",
of the language used in ordinary course of events and not how the complainant,
actually behaved on being abused. Merely because a man of cool temperament did not,
react violently or break the peace it does not follow that no offence was committed by,
the accused.13. In the absence of actual words used by the accused or even a gist of it,
in the complaint it is not possible to say if the case falls within the ambit of section 504,
"(IPC, 1960), and as such the charge has to be quashed.14. Thus where the only",
allegation in the complaint was that when the complainant resisted the attempts by the,
"accused to evict her forcibly from the land in her tenancy, the accused persons abused",
"her in filthy words, the complainant not disclosing the actual words used by the",
"accused or that she was provoked by the insulting abuse, the accused were not",
summoned.15.,
[s 504.1] Ingredients.—,
This section requires two essentials:—,
1. Intentionally insulting a person and thereby giving provocation to him.,
2. The person insulting must intend or know it to be likely that such provocation will,
cause him to break the public peace or to commit any other offence.16.,
Mere hurling of abuses in absence of any allegation that such abuses were given,
intending or knowingly that such an action would provoke the aggrieved person to,
break public peace or to commit an offence does not fall within the definition of the,
"offence as prescribed under section 504, (IPC, 1860). A bare reading of the section",
does not leave any room for doubt that the intentional insult which is given by the,
accused should be clothed with the intention or knowledge that such an insult would,
provoke the aggrieved person to commit breach of public peace or to commit an,
offence.17. Section 504 refers to intentional insult with intent to provoke breach of,
peace.,
"In order to attract the ingredients of an offence under section 504 of the (IPC, 1860), it",
would be necessary that actual words used or supposed to have been used should be,
"mentioned in the complaint/written report, otherwise it would be extremely difficult for",
the Court to decide whether or not the words used amounted to an intentional insult.18.,
[s 504.2] Sections 499 and 504.—,
The difference between an offence under this section and defamation lies in the fact,
"that in defamation, publication to the prosecutor alone is not sufficient, as such an",
imputation could not be said to harm the reputation of the person; but under this,
section this would complete the offence.,
"10. Pukh Raj v State, (1953) 3 Raj 983 .",
"11. Abraham v State, AIR 1960 Ker 236 [LNIND 1960 KER 34] .",
"12. Mohammed Sabad Ali v Thuleswar Borah, (1954) 6 Ass 274.",
"13. K Veerangaiah, 1976 Cr LJ 1690 (AP).",
"14. Prem Pal Singh, 1981 Cr LJ 1208 (HP).",
"15. Jodh Singh v State of UP, 1991 Cr LJ 3226 (All).",
"16. Restated in Jodh Singh v State of UP, 1991 Cr LJ 3226 (All). Sanction to prosecute a public",
servant under this section would be needed only when his act in question is a part of his official,
"duty, and not when he abuses or insults a person who is in police lock-up. Abani Ch Biswal v",
"State of Orissa, 1988 Cr LJ 1038 (Ori).",
"17. Abdul Majid v State of Rajasthan, 2012 Cr LJ 4392 (Raj); Prakash Chandra Bafna v Oba Ram,",
2011 Cr LJ 416 (Raj)-using vulgar and filthy language against complainant when he went to his,
"office to ask reason for not permitting him to mark his presence in register- held, not part of",
official duty and sanction is not necessary to prosecute him.,
"18. Shiv Sundar Bharti v State of Bihar, 2017(1) Crimes 351 (Pat) : 2016 Cr LJ 4761 (Pat).",
THE INDIAN PENAL CODE,
"CHAPTER XXII OF CRIMINAL INTIMIDATION, INSULT AND ANNOYANCE",
[s 505] Statements conducing to public mischief.,
"19.(1) Whoever makes, publishes or circulates any statement, rumour or report,—",
"(a) with intent to cause, or which is likely to cause, any officer, soldier, 20.",
"[sailor or airman] in the Army, 21.[Navy or Air Force] 22.of India to",
mutiny or otherwise disregard or fail in his duty as such; or,
"(b) with intent to cause, or which is likely to cause, fear or alarm to the",
"public, or to any section of the public whereby any person may be",
induced to commit an offence against the State or against the public,
tranquillity; or,
"(c) with intent to incite, or which is likely to incite, any class or",
community of persons to commit any offence against any other class,
"or community,",
"shall be punished with imprisonment which may extend to [three years], or",
"with fine, or with both.",
"23.(2) Statements creating or promoting enmity, hatred or ill-will between classess.",
"Whoever makes, publishes or circulates any statement or report containing",
"rumour or alarming news with intent to create or promote, or which is likely",
"to create or promote, on grounds of religion, race, place of birth, residence,",
"language, caste or community or any other ground whatsoever, feelings of",
"enmity, hatred or ill-will between different religious, racial, language or",
"regional groups or castes or communities, shall be punished with",
"imprisonment which may extend to 24.[three years], or with fine, or with both.",
"25.(3) Offence under sub-section (2) committed in place of worship, etc.",
Whoever commits an offence specified in sub-section (2) in any place of,
worship or in any assembly engaged in the performance of religious worship,
"or religious ceremonies, shall be punished with imprisonment which may",
extend to five years and shall also be liable to fine.,
"Exception.—It does not amount to an offence, within the meaning of this",
"section, when the person making, publishing or circulating any such",
"statement, rumour or report, has reasonable grounds for believing that such",
"statement, rumour or report is true and makes, publishes or circulates [it in",
good faith] and without any such intent as aforesaid.,
STATE AMENDMENT,
"Andhra Pradesh.—In Andhra Pradesh the offence is cognizable vide G.O. Ms. No. 732,",
dated 5-12-1991.,
COMMENT.—,
This section is aimed at reports calculated to produce mutiny or to induce one section,
of the population to commit offences against another and to prevent and remove,
communal and religious tensions. The Supreme Court has held that the provisions of,
this section are not unconstitutional as being violative of the fundamental right of,
freedom of speech and expression under Article 19(1)(a) of the Constitution.26. Sub-,
sections (2) and (3) of this section have now been made cognizable offences under the,
"Code of Criminal Procedure, 1973 (Cr PC, 1973). Of course, offences under this section",
"and sections 506 and 507, (IPC, 1860), can be made cognizable offences in specified",
areas by the State Government by a notification in the official Gazette under section 10,
"of the Criminal Law Amendment Act, 1932.",
A mere threat which causes no alarm to the complainant does not constitute an,
offence under the section.27.,
[s 505.1] Sections 153A and 505.—,
It is necessary under section 505 that there should be a publication of words or,
"representation intended for promoting feelings of enmity or hatred, but this is not",
necessary under section 153A. Inciting of the feelings of one group merely without any,
reference to another group does not attract section 153A or section 505.28. The Court,
"referred to the decision in Balwant Singh v State of Punjab,29. where the ruling was that",
mens rea is a necessary ingredient for the offence under section 153A. Mens rea is an,
equally necessary postulate for the offence under section 505(2) also as could be,
"discerned from the words ""with intent to create or promote or which is likely to create",
"or promote"" as used in that sub-section. The Court also referred to the decision in",
"Sunilakhya Chowdhury v HM Jadwet,30. wherein it was held that the words ""makes or",
"publishes any imputation"" should be interpreted as words supplementing each other. A",
maker of imputation without publication is not liable to be punished under section 499.,
"The same interpretation is warranted in respect of the words ""makes, publishes or",
"circulates"" in section 505 (IPC, 1860) also.",
"19. Section 505 renumbered as sub-section (1) of that section by Act 35 of 1969, section 3",
(w.e.f. 4 September 1969).,
"20. Subs. by Act 10 of 1927, section 2 and Sch I, for or sailor.",
"21. Subs. by Act 10 of 1927, section 2 and Sch I, for or Navy.",
22. Subs. by A.O. 1950 for of Her Majesty or in the Imperial Service Troops. The words or in the,
"Royal Indian Marine occurring after the words Majesty were omitted by Act 35 of 1934, section",
2 and Sch.,
"23. Ins. by Act 35 of 1969, section 3(i) (w.e.f. 4 September 1969).",
"24. Subs. by Act 41 of 1961, section 4, for two years (w.e.f. 12 September 1961).",
"25. Ins. by Act 35 of 1969, section 3(i) (w.e.f. 4 September 1969).",
"26. Kedar Nath, AIR 1962 SC 955 [LNIND 1962 SC 21] .",
"27. Amitabh Adhar v NCT of Delhi, 2000 Cr LJ 4772 (Del).",
"28. Bilal Ahmed Kaloo v State of AP, AIR 1997 SC 3483 [LNIND 1997 SC 1060] : 1997 Cr LJ 4091",
.,
"29. Balwant Singh v State of Punjab, AIR 1995 SC 1785 [LNIND 1995 SC 1420] : 1995 AIR SCW",
2803 : (1995) 3 SCC 214 [LNIND 1995 SC 1420] .,
"30. Sunilakhya Chowdhury v HM Jadwet, AIR 1968 Cal 266 [LNIND 1967 CAL 167] .",
THE INDIAN PENAL CODE,
"CHAPTER XXII OF CRIMINAL INTIMIDATION, INSULT AND ANNOYANCE",
[s 506] Punishment for criminal intimidation.,
"Whoever commits, the offence of criminal intimidation shall be punished with",
"imprisonment of either description for a term which may extend to two years, or with",
"fine, or with both;",
"If threat be to cause death or grievous hurt, etc.",
"and if the threat be to cause death or grievous hurt, or to cause the destruction of",
"any property by fire, or to cause an offence punishable with death or 31.",
"[imprisonment for life], or with imprisonment for a term which may extend to",
"seven years, or to impute, unchastity to a woman, shall be punished with",
"imprisonment of either description for a term which may extend to seven years,",
"or with fine, or with both.",
STATE AMENDMENTS,
Uttar Pradesh.—The following amendments were made by Notification No. 777/VIII 9-,
"4(2)-87, dated 31-7-1989, published in U.P. Gazette, Extra, Part-4, Section (Kha) dated 2-8-",
1989.,
"""Any offence punishable under section 506, (IPC, 1860), when committed in any district",
"of Uttar Pradesh, shall be notwithstanding anything contained in the Code of Criminal",
"Procedure, 1973 (Cr PC, 1973) be cognizable and non-bailable.""",
Andhra Pradesh.—In Andhra Pradesh the offence is non-bailable if committed in A.P. vide,
"G.O. Ms. No. 732, dated 5-12-1991.",
COMMENT.—,
Where a person entered the victim's house during midnight armed with a knife and,
"threatened with death anyone who came between himself and the victim, the offence",
under this section was held to have been made out.32. The threat must be real in the,
sense that the accused means what he says and the victim of the threat should feel,
threatened actually.33. Where the accused made his outburst on a public servant when,
"he was on the way to attend his office saying that he was going to kill him, it was held",
that it was sufficient to hold that the act will fall under section 506.34.,
[s 506.1] Mere words.—,
"In order to attract the ingredients of section 506, (IPC, 1860) the intention of the",
"accused must be to cause alarm to the victim. Mere expression of words, without any",
"intention to cause alarm, would not suffice.35. In Amulya Kumar Behera v Nabaghana",
"Behera,36. it was held that intention of the accused must be to cause alarm to the",
"victim and whether he is alarmed or not is of no consequence. However, mere",
expression of any words without any intention to cause alarm would not be sufficient to,
bring in the application of section 506.,
"In absence of basic ingredients of the section in the complaint, no case under section",
"506 (IPC, 1860) can be sustained.37. Where all the witnesses have stated in specific",
terms that the accused came prepared and intimidated the complainant and also other,
witnesses. All the respondents are liable to be convicted for the offence punishable,
"under section 506 of the (IPC, 1860).38.",
Where it was found that that the accused issued no threats to the complainant so as to,
"cause death or grievous hurt, it was held that mere exhortation to his co-accused to",
"finish him, did not amount to threat. His conviction under section 506 was set aside.39.",
Asking a person not to work in a private garden and threatening him to go away form,
the garden would not satisfy the requirements of the section.40.,
The statements said to have been made against accused six months prior to the death,
"of the deceased with regard to the offence under section 506. (IPC, 1860) cannot be",
"treated as admissible under section 32(1) of the Indian Evidence Act, 1872.41.",
[s 506.2] Part-I Non-cognizable.—,
"Since the part 1 of section 506 is not cognizable, the permission of the Magistrate",
would be required to try the applicants under said section.42.,
"31. Subs. by Act 26 of 1955, section 117 and Sch, for transportation for life (w.e.f. 1 January",
1956).,
"32. Ghanshyam v State of MP, 1990 Cr LJ 1017 (MP).",
"33. Noble Mohandas v State of TN, 1989 Cr LJ 669 (Mad). Threatening and giving fist blow to a",
"surgeon of a Government hospital, held offence under the section, Siyasaran v State of MP, 1995",
Cr LJ 2126 (SC).,
"34. Rajendra Datt v State of Haryana, 1993 Cr LJ 1025 (P&H).",
"35. Tammineedi Bhaskara Rao v State of AP, 2007 Cr LJ 1204 (AP).",
"36. Amulya Kumar Behera v Nabaghana Behera, 1995 Cr LJ 3559 (Ori).",
"37. Gorige Pentaiah v State of AP, 2009 Cr LJ 350 : 2008 (12) SCC 531 [LNINDORD 2008 SC 247]",
.,
"38. State of Maharashtra v Tatyaba Bajirao Jadhav, 2011 Cr LJ 2717 (Bom); State of HP v Vijay",
Kumar 2010 Cr LJ 475 .,
"39. Mohinder Singh v State of Haryana, 1993 Cr LJ 85 (P&H). Dimpey Gujral v Union Territory",
"2013, AIR 2013 SC 518 : Cr LJ 520; Surat Singh v State, 2013 (1) Scale 1 [LNIND 2012 SC 837] .",
"40. Saraswathi v State of TN, 2002 Cr LJ 1420 (Mad). Sanjay Pandey v Chhaganlal J Jain, 2001",
Cr LJ 2127 (Bom).,
"41. D Vijay Kumar v State of AP, 2010 Cr LJ 968 (AP).",
"42. Narendra Bhojram Patil v State of Maharashtra, 2010 Cr LJ 2762 (Bom). See also Vishwajit P",
"Rane v State of Goa, 2011 Cr LJ 1289 (Bom), Government of Goa issued a notification declaring",
"offence punishable under section 506 of the (IPC, 1860) committed within State of Goa, as",
"cognizable and non-bailable. Held, there is no power vesting in the State Government to amend",
"the First Schedule to the Criminal Procedure Code, 1973 (2 of 1974) by issuing a notification.",
THE INDIAN PENAL CODE,
"CHAPTER XXII OF CRIMINAL INTIMIDATION, INSULT AND ANNOYANCE",
[s 507] Criminal intimidation by an anonymous communication.,
Whoever commits the offence of criminal intimidation by an anonymous,
"communication, or having taken precaution to conceal the name or abode of the",
"person from whom the threat comes, shall be punished with imprisonment of either",
"description for a term which may extend to two years, in addition to the punishment",
provided for the offence by the last preceding section.,
STATE AMENDMENT,
"Andhra Pradesh.—In Andhra Pradesh the offence is cognizable vide G.O. Ms. No. 732,",
dated 5-12-1991.,
COMMENT.—,
For a conviction under this section it must be shown that the accused committed,
criminal intimidation by an anonymous communication.43.,
"43. Doraiswamy Ayyar, (1924) 48 Mad 774.",
THE INDIAN PENAL CODE,
"CHAPTER XXII OF CRIMINAL INTIMIDATION, INSULT AND ANNOYANCE",
[s 508] Act caused by inducing person to believe that he will be rendered an,
object of Divine displeasure.,
Whoever voluntarily causes or attempts to cause any person to do anything which that,
"person is not legally bound to do, or to omit to do anything which he is legally entitled",
"to do, by inducing or attempting to induce that person to believe that he or any person",
in whom he is interested will become or will be rendered by some act of the offender,
an object of Divine displeasure if he does not do the thing which it is the object of the,
"offender to cause him to do, or if he does the thing which it is the object of the",
"offender to cause him to omit, shall be punished with imprisonment of either",
"description for a term which may extend to one year, or with fine, or with both.",
ILLUSTRATIONS,
"(a) A sits dharna at Z's door with the intention of causing it to be believed that, by so",
"sitting, he renders Z an object of Divine displeasure. A has committed the",
offence defined in this section.,
"(b) A threatens Z that, unless Z performs a certain act, A will kill one of A's own",
"children, under such circumstances that the killing would be believed to render Z",
an object of Divine displeasure. A has committed the offence defined in this,
section.,
COMMENT.—,
This section is intended to prevent such practices as dharna and traga.,
THE INDIAN PENAL CODE,
"CHAPTER XXII OF CRIMINAL INTIMIDATION, INSULT AND ANNOYANCE",
"[s 509] Word, gesture or act intended to insult the modesty of a woman.",
"Whoever, intending to insult the modesty of any woman, utters any word, makes any",
"sound or gesture, or exhibits any object, intending that such word or sound shall be",
"heard, or that such gesture or object shall be seen, by such woman, or intrudes upon",
"the privacy of such woman, 44.[shall be punished with simple imprisonment for a term",
"which may extend to three years, and also with fine].",
COMMENT.—,
If a man intending to outrage the modesty of a woman exposes his person indecently,
to her or uses obscene words intending that she should hear them or exhibits to her,
"obscene drawing, he commits this offence.",
[s 509.1] Ingredients.—,
This section requires:—,
1. Intention to insult the modesty of a woman.,
2. The insult must be caused,
"(i) by uttering any word or making any sound or gesture, or exhibiting any object",
intending that such word or sound shall be heard or that the gesture or object,
"shall be seen by such woman, or",
(ii) by intruding upon the privacy of such woman.,
The burden is on the prosecution to prove that the accused had uttered the words or,
"made the sound or gesture and that such word, sound or gesture was intended by the",
"accused to be heard or seen by some woman. Normally, it is difficult to establish this",
"and, seldom, a woman files complaint and often the wrong doers are left unpunished",
even if complaint is filed since there is no effective mechanism to monitor and follow,
up such acts.45.,
[s 509.2] Indecent overtures.—,
"Section 509 (IPC, 1860) criminalises a 'word, gesture or act intended to insult the",
modesty of a woman' and in order to establish this offence it is necessary to show that,
the modesty of a particular woman or a readily identifiable group of women has been,
"insulted by a spoken word, gesture or physical act. Clearly, this offence cannot be made",
out when the complainants' grievance is with the publication of what the appellant had,
stated in a written form.46.,
"The modesty contemplated under section 509 is to be understood as the ""womanly",
"propriety of behaviour"".47.",
"44. Subs. by the Criminal Law (Amendment) Act, 2013 (13 of 2013), section 10 (w.e.f. 3",
"February 2013) for the words ""shall be punished with simple imprisonment for a term which may",
"extend to one year, or with fine, or with both.""",
"45. Deputy Inspector General of Police v S Samuthiram, AIR 2013 SC 14 [LNIND 2012 SC 755] :",
(2013) 1 SCC 598 [LNIND 2012 SC 755] .,
"46. S Khushboo v Kanniammal, AIR 2010 SC 3196 [LNIND 2010 SC 411] : 2010 Cr LJ 2828 (SC) :",
2010 (5) SCC 600 [LNIND 2010 SC 411] .,
"47. Aloshia Joseph v Joseph Kollamparambil, 2009 Cr LJ 2190 ; Maloji Patil v State of Goa, 2009",
"Cr LJ 903 (Bom); Santha v State, 2006 (1) Ker LT 249 - whether a lady, can be convicted for an",
"offence under section 509 (IPC, 1860)",
THE INDIAN PENAL CODE,
"CHAPTER XXII OF CRIMINAL INTIMIDATION, INSULT AND ANNOYANCE",
[s 510] Misconduct in public by a drunken person.,
"Whoever, in a state of intoxication, appears in any public place, or in any place which it",
"is a trespass in him to enter, and there conducts himself in such a manner as to cause",
"annoyance to any person, shall be punished with simple imprisonment for a term",
"which may extend to twenty-four hours, or with fine which may extend to ten rupees,",
or with both.,
COMMENT.—,
Ingredients.—This section requires two things:—,
1. Appearance of a person in a state of intoxication in,
"(i) any public place, or",
(ii) any place which it is a trespass in him to enter.,
2. The person so appearing must have conducted himself in such a manner as to,
cause annoyance to any person.,
THE INDIAN PENAL CODE,
CHAPTER XXIII OF ATTEMPTS TO COMMIT OFFENCES,
[s 511] Punishment for attempting to commit offences punishable with,
imprisonment for life or other imprisonment.,
Whoever attempts to commit an offence punishable by this Code1. with 1,
"[imprisonment for life] or imprisonment, or to cause such an offence to be committed,",
"and in such attempt does any act towards the commission of the offence, shall, where",
"no express provision is made by this Code2. for the punishment of such attempt, be",
"punished with 2 [imprisonment of any description provided for the offence, for a term",
"which may extend to one-half of the imprisonment for life or, as the case may be, one-",
"half of the longest term of imprisonment provided for that offence], or with such fine",
"as is provided for the offence, or with both.",
ILLUSTRATIONS,
"(a) A makes an attempt to steal some jewels by breaking open a box, and finds",
"after so opening the box, that there is no jewel in it. He has done an act towards",
"the commission of theft, and therefore is guilty under this section.",
(b) A makes an attempt to pick the pocket of Z by thrusting his hand into Z's pocket.,
A fails in the attempt in consequence of Z's having nothing in his pocket. A is,
guilty under this section.,
COMMENT.—,
"Before completion of crime, human mind has to pass four steps as under:—",
(1) Intention to commit;,
(2) Preparation to commit it;,
(3) Attempt to commit it; and,
"(4) If the attempt is successful, then crime is complete.",
"Section 511 Indian Penal Code, 1860 (IPC, 1860) is a general provision dealing with the",
attempts to commit offences and not made punishable by other specific section. It,
makes punishable all attempts to commit offences punishable with imprisonment and,
not only those punishable for life or death.3.,
A person commits the offence of 'attempt to commit a particular offence' when (i) he,
"intends to commit that particular offence; and (ii) he, having made preparations and",
"with the intention to commit the offence, does an act towards its commission; such an",
"act need not be the penultimate act towards the commission of that offence, but must",
"be an act during the course of committing that offence, section 511, IPC, 1860 is",
"attracted.4. An attempt to commit an offence is an act, or a series of acts, which leads",
"inevitably to the commission of the offence, unless something, which the doer of the",
"act neither foresaw nor intended, happens to prevent this. An attempt may be",
"described to be an act done in part execution of a criminal design, amounting to more",
"than mere preparation, but falling short of actual consummation, and, possessing,",
"except for failure to consummate, all the elements of the substantive crime. In other",
"words, an attempt consists in it the intent to commit a crime, falling short of, its actual",
commission or consummation/completion. It may consequently be defined as that,
which if not prevented would have resulted in the full consummation of the act,
attempted. The illustrations given in section 511 clearly show the legislative intention,
to make a difference between the cases of a mere preparation and an attempt.5.,
"In Om Prakash's case6. the Supreme Court has clearly held that like section 511, IPC,",
"1860 in section 307, IPC, 1860 to the act need not be the penultimate act.",
[s 511.1] Essentials.—,
"In every crime, there is first intention to commit it; second, preparation to commit it;",
"third, attempt to commit it. If the third stage, that is attempt is successful, then the",
"crime is complete. If the attempt fails, the crime is not complete but the law punishes",
"the person attempting the act. An 'attempt' is made punishable, because every attempt,",
"although it fails of success, must create alarm, which, of itself, is an injury, and the",
moral guilt of the offender is the same as if he had succeeded.,
"A culprit first intends to commit the offence, then makes preparation for committing it",
"and thereafter attempts to commit the offence. If the attempt succeeds, he has",
"committed the offence, if it fails due to reasons beyond his control, he is said to have",
attempted to commit the offence. Attempt to commit an offence can be said to begin,
when the preparations are complete and the culprit commences to do something with,
the intention of committing the offence and which is a step towards the commission of,
"the offence. The moment he commences to do an act with the necessary intention, he",
commences his attempt to commit the offence—the act need not be the penultimate,
act towards the commission of the offence but it must be an act during the course of,
committing that offence.7.,
(1) Intention.—Intention is the direction of conduct towards the object chosen upon,
considering the motives which suggest the choice.8. The will is not to be taken for the,
"deed, unless there be some external act which shows that progress has been made in",
"the direction of it, or towards maturing and affecting it. In an attempt to commit an",
"offence, there must be intention to commit the crime combined with doing of some act",
"adopted to, but falling short of its actual commission.9.",
(2) Preparation.—Preparation consists in devising or arranging the means or measures,
necessary for the commission of an offence.10.,
[s 511.2] Removal of rice bags from godown in order to sell them.—,
A Government stockist removed 80 bags of rice from a godown in his charge and,
concealed them in a room with a view to sell them and appropriate the sale proceeds. It,
"was held that the act of the stockist amounted only to preparation and therefore, he",
was not guilty of any offence.11.,
[s 511.3] Running towards well for committing suicide.—,
"A woman ran to a well stating she would jump into it, and she was caught before she",
could reach it. It was held that she could not be convicted of an attempt to commit,
suicide as she might have changed her mind before jumping into the well.12.,
(3) Attempt.—Attempt is the direct movement towards the commission after the,
"preparations are made.13. In State of Maharashtra v Mohd. Yakub,14. reported in the",
Apex Court considered the definition of 'attempt to commit crime' as the last proximate,
"act which a person does towards the commission of an offence, the consummation of",
the offence being hindered by circumstances beyond his control. It was observed by,
"the Apex Court that what constitutes an ""attempt"" is a mixed question of law and fact,",
"depending largely on the circumstances of the particular case. ""Attempt"" defies a",
"precise and exact definition. Broadly speaking, all crimes which consist of the",
commission of affirmative acts are preceded by some covert or overt conduct which,
may be divided into three stages. The first stage exists when the culprit first entertains,
"the idea or intention to commit an offence. In the second stage, he makes preparations",
to commit it. The third stage is reached when the culprit takes deliberate overt steps to,
commit the offence. Such overt act or step in order to be 'criminal' need not be the,
penultimate act towards the commission of the offence. It is sufficient if such act or,
"acts were deliberately done, and manifest a clear intention to commit the offence",
"aimed, being reasonably proximate to the consummation of the offence.",
The test for determining whether the acts constitute attempt or preparation is whether,
the overt acts already done are such that if the offender changes his mind and does not,
"proceed further in its progress, the acts already done would be completely harmless.",
"But where the thing done is such as, if not prevented by any extraneous cause, would",
"fructify into commission of an offence, it would amount to an attempt to commit that",
offence.15. An attempt to commit an offence does not cease to be an attempt merely,
because after the attempt is made and before the actual completion of the offence the,
offender may be able to prevent its completion by doing some other act in pursuance,
of a changed intention.16.,
An accused is liable for attempt where his failure to commit an offence is not due to,
"any act or omission of his own, but to the intervention of some factor independent of",
his own volition.17. Where misrepresentations had been made and money obtained,
"from the persons sought to be cheated by misrepresentations, there is an attempt to",
cheat and not merely a preparation for committing that offence.18.,
[s 511.4] Distinction between 'preparation' and 'attempt'.—,
There is a distinction between 'preparation' and 'attempt'. Attempt begins where,
preparation ends. A person commits the offence of attempt to commit a particular,
"offence when accused (i) intends to commit a particular offence, (ii) he having made",
"preparation and with the intention to commit an offence, (iii) does an act towards its",
"commission, such an act need not be the penultimate act towards the commission of",
that offence but must be an act during the course of committing that offence.19.,
1. 'Offence punishable by this Code'.—No criminal liability can be incurred under the,
"Code by an attempt to do an act, which if done will not be an offence against the",
Code.20.,
"The expression ""whoever attempts to commit an offence"" in this section can only mean",
"""whoever intends to do a certain act with the intent or knowledge necessary for the",
"commission of that offence"".21.",
[s 511.5] Impossible offence.—,
"An attempt is possible, even when the offence attempted cannot be committed; as",
"when a person, intending to pick another person's pocket, thrusts his hand into the",
"pocket, but finds it empty. That such an act would amount to a criminal attempt",
"appears from the illustrations to this section. But in doing such an act, the offender's",
"intention is to commit a complete offence, and his act only falls short of the offence by",
reason of an accidental circumstance which has prevented the completion of the,
offence. It is possible to attempt to commit an impossible theft and so offend against,
"the Code because theft is itself an offence against the Code, and may therefore, be",
attempted within the meaning of the Code. At the same time it is necessary to show,
that the means adopted are apparently suitable for the fulfilment of the design.22. Thus,
where a man threatens the life of another with a child's pop gun using a cork as a,
projectile23. or tries to pick the pocket of a man who is well beyond the reach of his,
"hand, no attempt either to commit murder or to steal can be said to have been",
committed as the means adopted are impossible of achieving the designed purpose.,
Similar would be the case in regard to absolutely impossible acts. Thus where the act,
"is such that it is incapable of commission, e.g., trying to steal from an empty room or",
an empty pocket or trying to kill a person by shooting at a bulge in a bed thinking it to,
"be the enemy, no criminal attempt can be said to have been committed.24. In the IPC,",
"1860, however, trying to steal from an empty pocket would still constitute an attempt",
"as Illustration (b) to section 511, IPC, 1860 specifically says so. Though in England too",
this happened to be the law previously25. the position has materially changed after the,
decision of the House of Lords in Haughtons case.26. It is felt that the law in India,
should be changed on this score at least to bring about a uniformity of approach to this,
"question of attempt so far sections 307 and 511, IPC, 1860 are concerned especially,",
"after the decision of the Supreme Court in the case of Om Prakash's case,27. has held",
that under both these sections the act need not be the last proximate act.,
[s 511.6] Attempt to cheat.—,
The accused applied to the Patna University for permission to appear at the MA,
Examination in English as a private candidate representing that he was a graduate,
having obtained his BA degree three years earlier and that he had been teaching in a,
"certain school. In support of his application, he attached certain certificates purporting",
to be from the Headmaster of the School and the Inspector of Schools. The University,
"authorities gave the accused permission to appear at the examination. Later on, finding",
that the certificates were false and that the accused was not a graduate and was not a,
"teacher, the University authorities withdrew the permission. The Supreme Court held",
that the accused was guilty of attempting to cheat and that the moment the accused,
"dispatched his application to the University, he entered the realm of attempting to",
commit the offence of cheating.28. Where the accused made an alteration in his own,
"affidavit under the honest belief that it was necessary for customs' clearance, the",
Supreme Court set aside the conviction under section 420 read with this section.29.,
The offence of attempting to cheat may be committed even though the person,
attempted to be cheated does not believe in the representations made to him and is,
not misled by them but only feigns belief in order to trap the offender.30.,
[s 511.7] Outraging Modesty of a Woman and attempt to Rape (sections 354,
and 511 read with section 376).—,
In between complete rape and attempt to commit rape there is a rare area covered by,
"section 354 of IPC, 1860, i.e., assault or criminal force to woman with intent to outrage",
her modesty or indecent assault. The dividing line between attempt to commit rape and,
indecent assault is not only thin but also is practically invisible. For an offence of,
"attempt to commit rape, prosecution is required to establish that the act of the accused",
"went beyond the stage of preparation. In a given case, where the prosecutrix was made",
naked and her cries attracted her uncle who came to the spot and then the accused,
"fled away, it was held that it was not a case of attempt to commit rape but was one",
"under section 354 of IPC, 1860.31.",
[s 511.8] 'Attempt could be a minor offence'.—,
"It is true that there was no charge under section 376 read with section 511, IPC, 1860.",
"However, under section 222 of the Code of Criminal Procedure, 1973 (Cr PC, 1973)",
when a person is charged for an offence he may be convicted of an attempt to commit,
such offence although the attempt is not separately charged.32.,
2. 'Where no express provision is made by this Code'.—The section does not apply to,
cases of attempts made punishable by some specific sections of the Code. The,
attempts specifically provided for are:—,
"Section 121, attempt to wage war against the Government of India. Section 124,",
attempt wrongfully to restrain the President and other high officials with intent to,
induce or compel them to exercise or refrain from exercising any of their lawful powers.,
"Section 125, attempt to wage war against the Government of any Asiatic Power in",
"alliance or at peace with the Government of India. Section 130, attempt to rescue State",
"prisoners or prisoners of war. Section 196, attempt to use as the evidence known to be",
"false. Sections 198, 200, attempt to use as true a certificate or declaration known to be",
"false in a material point. Section 213, attempt to obtain a gratification to screen an",
"offender from punishment. Sections 239 and 240, attempt to induce a person to",
"receive a counterfeit coin. Section 241, attempt to induce a person to receive as",
"genuine counterfeit coin which, when the offender took it, he did not know to be",
"counterfeit. Sections 307 and 308, attempts to commit murder and culpable homicide.",
"Section 309, attempt to commit suicide. Sections 385, 387 and 389, attempt to put a",
"person in fear of injury or accusation in order to commit extortion. Section 391,",
"conjoint attempt of five or more persons to commit dacoity. Sections 393, 394 and 398,",
"attempts to commit robbery. Section 460, attempt by one of many joint house-breakers",
by night to cause death or grievous hurt.,
"1. Subs. by Act 26 of 1955, section 117 and Sch, for transportation for life (w.e.f. 1 January",
1956).,
"2. Subs. by Act 26 of 1955, section 117 and Sch, for certain words (w.e.f. 1 January 1956).",
"3. Pawan Kumar v State of Haryana, 2010 Cr LJ 2077 (P&H).",
"4. I K Narayana v State of Karnataka, 2013 Cr LJ 874 (Kant).",
"5. Koppula Venkat Rao v State of AP, AIR 2004 SC 1874 [LNIND 2004 SC 301] : 2004 Cr LJ 1804",
(SC).,
"6. Om Prakash, 1961 (2) Cr LJ 848 (SC).",
"7. Abhayanand, AIR 1961 SC 1698 [LNIND 1961 SC 202] ; Om Prakash, 1961 (2) Cr LJ 848 (SC).",
"8. James Fitzjames Stephen, General View of the Criminal Law of England, 2nd Edn, p 69;",
"Koppula Venkat Rao v State of AP, AIR 2004 SC 1874 [LNIND 2004 SC 301] : 2004 Cr LJ 1804 :",
"(2004) 3 sCC 602, the Supreme Court explained why attempt has been characterized as crime.",
"9. Damodar Behera v State of Orissa, 1996 Cr LJ 344 (Ori).",
"10. Quoted with approval from Mayne's Criminal Law in Peterson's case, (1876) 1 All 316 , 317",
"and in Padala Venkatasami, (1881) 3 Mad 4, 5; Ashaq Hussain, (1948) Pak LR 155.",
"11. Bhagwat v State, (1948) 28 Pat 92.",
"12. Ramakka, (1884) 8 Mad 5.",
"13. Quoted with approval from Mayne's Criminal Law in Peterson, (1876) 1 All 316 , and in",
"Padala Venkatasami, (1881) 3 Mad 4.",
"14. State of Maharashtra v Mohd. Yakub, AIR 1980 SC 1111 [LNIND 1980 SC 99] : (1980) 3 SCC",
57 [LNIND 1980 SC 99] .,
"15. Tustipada Mandal, (1950) Cut 75.",
"16. Haricharan v State, AIR 1950 Ori 114 [LNIND 1949 ORI 25] (SB).",
"17. Mangeram v Lal Chhatramohansingh, (1950) Nag 908.",
"18. Bashirbhai, (1960) 3 SCR 554 [LNIND 1960 SC 126] : 62 Bom LR 908.",
"19. State of Maharashtra v Mohd. Yakub, AIR 1980 SC 1111 [LNIND 1980 SC 99] : (1980) 3 SCC",
57 [LNIND 1980 SC 99] .,
"20. Mangesh Jivaji, (1887) 11 Bom 376, 381; Ram Charit Ram Bhakat v Chairman, Rajshahi",
"District Board, (1938) 1 Cal 420 .",
"21. Om Prakash, AIR 1962 SC 1782 .",
"22. Mohinder Singh, 1960 Cr LJ 393 (Punj).",
23. Ibid.,
"24. Haughton v Smith, (1975) AC 476 Per House of Lords : (1973) 3 All ER 1109 : (1974) 2 WLR",
607 ; see also Neilson (1978) RTR 232 .,
"25. Ring, (1892) 61 LJ MC 116.",
"26. Haughton, supra.",
"27. Om Prakash, 1961 (2) Cr LJ 848 (SC).",
"28. Abhayanand, AIR 1961 SC 1698 [LNIND 1961 SC 202] ; see also Sudhir Kumar, 1973 Cr LJ",
"1798 (SC); State of Maharashtra v Mohd. Yakub, 1980 Cr LJ 793 (SC).",
"29. Kapoor Chand Maganlal Chanderia v State (Delhi Admn), 1985 SCC (Cr) 441 : (1985) Supp",
SCC 268 .,
"30. Bashirbhai, 62 Bom LR 908 : (1960) 3 SCR 554 [LNIND 1960 SC 126] .",
"31. Tukaram Govind Yadav v State of Maharashtra, 2011 Cr LJ 1501 (Bom); State of MP v Babulal,",
"AIR 1960 MP 155 [LNIND 1959 MP 49] ; Rajesh Vishwakarma v State of Jharkhand, 2011 Cr LJ",
"2753 (Jha); Pawan Kumar v State of Haryana, 2010 Cr LJ 2077 (P&H).",
"32. Pandharinath v State of Maharashtra, (2009) 14 SCC 537 [LNIND 2009 SC 1378] .",
THE INDIAN PENAL CODE,
SUMMARY,
THE draft of the Indian Penal Code was prepared by the First Indian Law Commission,
when Macaulay was the President of that body. Its basis is the law of England freed,
"from superfluities, technicalities and local peculiarities. Suggestions were also derived",
from the French Penal Code and from Livingstone's Code of Louisiana. The draft,
"underwent a very careful revision at the hands of Sir Barnes Peacock, Chief Justice,",
and puisne Judges of the Calcutta Supreme Court who were members of the,
"Legislative Council, and was passed into law in 1860. Though it is principally the work",
"of a man who had hardly held a brief, and whose time was devoted to politics and",
"literature, yet it is universally acknowledged to be a monument of codification and an",
everlasting memorial to the high juristic attainments of its distinguished author.,
Objects of penal legislation.,
The legitimate objects of penal legislation are the selection of those violations of right,
which are sufficiently dangerous to the good order of society to justify and require the,
"infliction of punishment to repress them, and the adaptation of the degree of",
punishment to the purpose of repressing such violations.,
Crime.,
"A crime is an act of commission or omission, contrary to municipal law, tending to the",
"prejudice of the community, for which punishment can be inflicted as the result of",
judicial proceedings taken in the name of the State. It tends directly to the prejudice of,
"the community, while a civil injury tends more directly and immediately to the prejudice",
of a private right. The true test between a crime and a civil injury is that the latter is,
"compensated by damages, while the former is punished. The State is supposed to be",
"injured by any wrong to the community and is, therefore, the proper prosecutor. Many",
"crimes include a tort or civil injury; but every tort does not amount to a crime, nor does",
"every crime include a tort. Conspiracy, conversion, private nuisance, wrongful distress,",
"etc., are merely torts. Assault, false imprisonment, false charge, defamation, etc., are all",
"crimes as well as torts. Forgery, perjury, bigamy, homicide, etc., are crimes but not torts.",
The great difference between the legal and the popular meanings of the word crime is,
that whereas the only perfectly definite meaning which a lawyer can attach to the word,
"is that of an act or omission punishable by law, the popular or moral conception adds",
"to this the notion of moral guilt of a specially deep and degrading kind. By a criminal,",
"people in general understand a person who is liable to be punished, because he has",
done something at once wicked and obviously injurious in a high degree to the,
"common interest of society. Criminal law is, however, confined within very narrow limits",
and can be applied only to definite overt acts or omissions capable of being distinctly,
"proved, which acts or omissions inflict definite evils, either on specific persons or on",
the community at large.1.,
"By criminal law is now understood the law as to the definition, trial and punishment of",
"crimes, i.e., of acts or omissions forbidden by law which affect injuriously public rights,",
or constitute a breach of duties due to the whole community. Criminal law includes the,
"rules as to the prevention, investigation, prosecution and punishment of crimes. It lays",
"down what constitutes an offence, what proof is necessary to prove it, what procedure",
"should be followed in a court, and what punishment should be imposed.",
In criminal law the general principle is that there must be some guilty condition of mind,
in every offence. This is designated by the expression mens rea. It is however in the,
power of the Legislature to enact that a man may be convicted of an offence although,
there was no guilty mind. Where a statute requires a mental state to be proved as an,
"essential element of a crime, the burden is on the prosecution to prove it. The absence",
of mens rea really consists in an honest and reasonable belief entertained by the,
"accused of the existence of facts, which, if true, would make the act charged against",
him innocent.,
"The authors of the Code observe:—""We cannot admit that a Penal Code is by any",
"means to be considered as a body of ethics, that the Legislature ought to punish acts",
"merely because those acts are immoral, or that, because an act is not punished at all, it",
follows that the Legislature considers that act as innocent. Many things which are not,
punishable are morally worse than many things which are punishable. The man who,
treats a generous benefactor with gross ingratitude and insolence deserves more,
"severe reprehension than the man who aims a blow in a passion, or breaks a window in",
"a frolic; yet we have punishments for assault and mischief, and none for ingratitude.",
The rich man who refuses a mouthful of rice to save a fellow-creature from death may,
be a far worse man than the starving wretch who snatches and devours the rice; yet we,
"punish the latter for theft, and we do not punish the former for hard-heartedness.""2.",
Criminal law forms generally a part of the public law not variable in any one of its parts,
by the volition of private individuals and it is not necessarily deprived of its effect,
merely by the possible culpability of the individuals who may be the sufferers by the,
breach. The maxim ex turpicausa non orituractio is not a sufficient excuse for a man,
"who acts in opposition to the provisions of a penal statute. If a man, for instance, gives",
"a spurious sovereign to a person for losing a bet, and the latter sues the former, he",
cannot succeed for a breach of contract.,
Presumption of innocence.,
In criminal cases the presumption of law is that the accused is innocent. The burden of,
proving every fact essential to bring the charge home to the accused lies on the,
prosecution. The evidence must be such as to exclude every reasonable doubt of the,
"guilt of the accused. The evidence of guilt must not be a mere balance of probabilities,",
but must satisfy the Court beyond all shadow of reasonable doubt that the accused is,
"guilty. In matters of doubt it is safer to acquit than to condemn, since it is better that",
several guilty persons should escape than one innocent person suffer. Unbiased moral,
"conviction is no sufficient foundation for a verdict of guilty, unless it is based on",
substantial facts leading to no other reasonable conclusion than that of guilt of the,
accused. No man can be convicted of an offence where the theory of his guilt is no,
more likely than the theory of his innocence.,
"Under section 105 of the Indian Evidence Act, 1872, it is incumbent on the accused to",
prove the existence of circumstances (if any) which bring the offence charged within,
"any exception or proviso contained in the Indian Penal Code, 1860 (IPC, 1860), and the",
court shall presume the absence of such circumstances. But if it is apparent from the,
"evidence on record whether produced by the prosecution or defence, that a general",
"exception would apply, then the presumption is removed and it is duty of the court to",
consider whether the evidence proves to the satisfaction of the court that the accused,
comes within the exception.,
Limitation.,
"Previously there was no limitation to prosecute a person for an offence as ""Nullum",
"tempus occuritregi"" (lapse of time does not bar the right of the Crown) was the rule.",
"And as a criminal trial was regarded as an action by the government, it could be",
"brought at any time. It would be odious and fatal, says Bentham, to allow wickedness,",
"after a certain time, to triumph over innocence. No treaty should be made with",
malefactors of that character. Let the avenging sword remain always hanging over their,
"heads. The sight of a criminal in peaceful enjoyment of the fruit of his crimes,",
"protected by the laws he has violated, is a consolation to evil-doers, an object of grief",
"to men of virtue, a public insult to justice and to morals. The Roman law, however, laid",
down a prescription of 20 years for criminal offences as a rule. There is no period of,
limitation for offences which fall within the four corners of IPC.,
"An entire Chapter captioned ""Limitation For Taking Cognizance of Certain Offences""",
"(Chapter XXXVI) has been added to the Criminal Procedure Code, 1973 (Cr PC, 1973) to",
prevent taking of cognizance after certain periods in offences not punishable with,
"imprisonment for a term exceeding three years. Thus, section 468 of Cr PC, 1973 lays",
down:,
(1) Except as otherwise provided elsewhere in this Code no Court shall take,
"cognizance of an offence of the category specified in sub-section (2), after the",
expiry of the period of limitation.,
(2) The period of limitation shall be—,
"(a) six months, if the offence is punishable with fine only;",
"(b) one year, if the offence is punishable with imprisonment for a term not",
exceeding one year;,
"(c) Three years, if the offence is punishable with imprisonment for a term",
exceeding one year but not exceeding three years.,
(3) ********,
A Constitution Bench of the Supreme Court in Mrs. Sarah Mathew v The Institute of,
"Cardio Vascular Diseases,3. held that the period of Limitation starts from the date of",
"Complaint, not from date of Cognizance.",
"As opposed to the Benthamian concept of no limitation to criminal prosecutions, the",
modern concept is that the accused shall not be kept under a perpetual threat for any,
length of time and right to have a speedy trial should be regarded as one of his basic,
human rights. In keeping with this spirit the new Criminal Procedure Code has further,
"made provisions in sub-section (5) of section 167, Cr PC, 1973, for the stoppage of",
"investigation in Summons Cases, if the investigation is not concluded within six",
months from the date on which the accused was arrested.,
Master's liability for servant's act.,
The master is liable for the tortious acts of his servants done in the course of his,
"employment and for the master's benefit, but in criminal law he who does the act is",
"liable except where a person who is not the doer, abets or authorizes the act. There are,",
"however, certain exceptions to this principle.",
1. Statutory liability.—A statute may impose criminal liability upon the master as regards,
the acts or omission of his servants. Licence cases form a class by themselves in,
which the master is generally held responsible.,
2. Public nuisance.—The owner of works carried on for his profit by his agents is liable,
to be indicted for a public nuisance caused by acts of his agents in carrying on the,
works.,
3. Neglect of duty.—If a person neglects the performance of an act which is likely to,
"cause danger to others, and entrusts it to unskilful hands he will in certain cases be",
criminally liable.,
"1. Vicarious liability.—Indian Penal Code, 1860, save and except some matters does",
not contemplate any vicarious liability on the part a person. (Exceptions to this rule,
"include section 34, 149, etc.)",
2. Corporate Criminal Liability.—A company is liable to be prosecuted and punished for,
criminal offences. Although there are earlier authorities to the fact that the corporation,
"cannot commit a crime, the generally accepted modern rule is that a corporation may",
be subject to indictment and other criminal process although the criminal act may be,
committed through its agent. The majority in the Constitution bench held that there is,
no immunity to the companies from prosecution merely because the prosecution is in,
respect of offences for which the punishment is mandatory imprisonment and fine. The,
corporations can no longer claim immunity from criminal prosecution on the ground,
that they are incapable of possessing the necessary mens rea for the commission of,
criminal offences.4.,
Scheme.,
"The following tabular statement gives an outline of the scheme of IPC, 1860.—",
General Provisions,
1. Territorial operation of the Code (c. I).,
2. General Explanations (c. II).,
3. Punishments (c. III).,
4. General Exceptions (c. IV).,
5. Abetment (c. V).,
6. Conspiracy (c. VA).,
7. Attempts (c. XXIII).,
Specific Offences,
1. Affecting the State .. State (c. VI).,
"Army, Navy and Air Force (c.",
VIII).,
Public tranquillity (c. VIII).,
Public servants conduct of (c.,
IX).,
Contempt of authority of (c. X).,
Public Justice (c. XI).,
"Public health, safety, decency,",
and morals (c. XIV).,
2. Affecting the common .. Elections (c. IXA).,
wealth Coin and Government Stamps,
(c. XII).,
Weights and Measures (c. XIII).,
Religion (c. XV).,
Contract of Service (c. XIX).,
Marriage (c. XX).,
"Homicide, murder, abetment of",
"suicide, causing miscarriage,",
"injuries to unborn children,",
"exposure of infants, hurt",
"(simple and grievous), wrongful",
restraint,
"3. Affecting the human body .. and confinement, criminal",
"force, assault, kidnapping,",
"abduction, slavery, selling or",
"buying minor for prostitution,",
"unlawful labour, rape, unnatural",
offence (c. XVI).,
"Theft, extortion, robbery,",
"dacoity, criminal",
"misappropriation, criminal",
"breach of trust, receiving stolen",
"property, cheating, fraudulent",
deeds and dispositions of,
"mischief, criminal",
"4. Affecting corporeal or trespass (c. XVII), documents",
"incorporeal (forgery), property property",
"marks, currency and bank",
notes (c. XVIII).,
Defamation (c. XXI).,
"5. Affecting reputation Intimidation, insult and",
annoyance (c. XXII).,
Date and extent of operation. Chapter 1.,
"The IPC, 1860, came into operation on 1 January 1862. It takes effect throughout India",
except the State of Jammu and Kashmir. For every act or omission contrary to the,
provisions of the Code a person is liable to punishment under it (sections 1 and 2).,
Every person is made liable to punishment under the Code without distinction of nation,
"or rank. A foreigner, who enters the Indian territories and accepts the protection of",
"Indian laws, virtually submits himself to their operation. The Penal Code does not",
"exempt anyone from the jurisdiction of criminal Courts, but the following are",
exceptions to this principle:—,
(1) The Sovereign.,
(2) Foreign Sovereigns.,
(3) Ambassadors.,
(4) Alien enemies,
(5) Foreign army.,
(6) Men-of-war.,
The courts in India are prohibited from issuing a process against the President of India,
or the Governor of a State. (Article 361 of Constitution),
Territorial jurisdiction.,
The territorial jurisdiction of criminal courts will extend into the sea as far as 12,
nautical miles.,
Leading case:—R v Kastya Rama,
Extra-territorial operation.,
"An offence committed outside India may, however, be tried as an offence committed in",
India under the following circumstances:—,
1. By virtue of any Indian law (section 3).,
2. When such offence is committed by,
"(1) any citizen of India in any place without and beyond India,",
(2) any person on any ship or aircraft registered in India wherever it may be (section 4).,
Where an offence is committed beyond the limits of India but the offender is found,
within its limits he may be (I) extradited; or (II) tried in India.,
Extradition.,
(I) Extradition is the surrender by one State to another of a person desired to be dealt,
with for crimes of which he has been accused or convicted and which are justiciable in,
the courts of the other State. Whether an offender should be handed over pursuant to a,
requisition is determined by the domestic law of the State on which requisition is,
"made. In India, the procedure is to be found laid down in the Extradition Act, 1962.5.",
Intra-territorial trial.,
(II) The Courts in India are empowered to try offences committed out of India either on,
(A) Land or (B) High Seas or (C) Aircraft.,
Land.,
"(A) By virtue of sections 3 and 4 of IPC, 1860, and section 188 of Cr PC, 1973, local",
courts can try offences committed outside India.,
When the consequence of an act committed by a foreigner outside India if ensued in,
"India, he can be tried in India.6.",
High seas: Admiralty Jurisdiction.,
(B) The jurisdiction to try offences committed on the high seas is known as Admiralty,
jurisdiction. It is founded on the principle that a ship on the high seas is a floating,
island belonging to the nation whose flag she is flying.,
The jurisdiction extends over—,
(1) Offences committed on Indian ships. Such offences may be committed:,
"(a) on the high seas or in rivers, below the bridges, where the tide ebbs and",
"flows, and where great ships go; or",
(b) at a spot where the municipal authorities of a foreign country might,
exercise concurrent jurisdiction.,
(2) Offences committed on foreign ships in Indian territorial waters.,
(3) Pirates.,
"Section 18 of IPC, 1860, defines India as the territory of India excluding the state of",
Jammu and Kashmir. These territorial limits would include the territorial waters of,
"India.7. By The Territorial Waters, Continental Shelf, Exclusive Economic Zone and Other",
"Maritime Zones Act 80 of 1976, extend of India's Territorial waters was statutorily fixed",
at 12 nautical miles.,
All the High Courts in India have inherent admiralty jurisdiction and can invoke the,
same for the enforcement of a maritime claim.8. Admiralty jurisdiction was vested in,
"the mofussil courts by 12 & 13 Vic. c. 96, and section 686 of the Merchant Shipping",
"Act, 1958. The investigation/enquiry under Part XII of the Merchant Shipping Act, 1958,",
cannot be held to be a substitute for a proper investigation into an alleged crime if the,
same has been committed.,
Aircraft.,
"(C) The provisions of IPC, 1860, are made applicable to any offence committed by any",
"person on any aircraft registered in India, wherever it may be.",
Indian courts cannot try foreigners who are in India for offences committed by them,
outside India.,
Laws not affected by the Code.,
"The IPC, 1860, does not affect the provisions of (1) any act for punishing mutiny and",
"desertion by officers, soldiers, sailors or airmen, in the service of the Government of",
India;,
(2) any special or local law (section 5).,
An offence expressly made punishable by a special or local law will be punishable,
under the Code. But if the Legislature in framing the special or local law intended to,
"exclude the operation of the Code, no prosecution under the Code would lie. However, a",
person cannot be punished both under the Code and the special law for the same,
offence.,
General Explanations. Chapter II.,
"In chapter II, the leading terms used in the Code are defined and explained and the",
"meanings, thus, announced are steadily adhered to throughout the subsequent",
chapters.,
"General exceptions are part of the definition of every offence contained in IPC, 1860,",
"section 6, but the burden to prove their existence lies on the accused.",
"The Supreme Court has explained some of the categories of ""public servants"" (section",
21).,
The definition is not exhaustive. A person may be a public servant under some other,
"statute. Naresh Kumar Madan v State of MP, Leader of opposition in the Assembly is not",
a public servant. Sushil Modi v Mohan Guruswamy.,
Leading cases:—K Veeraswami v UOI Lakshmiman Singh v Naresh Ashok Marketing Ltd,
v PNB.,
"Imitation of foreign currency is an offence within the meaning of ""counterfeit"" (section",
28).,
Leading case:—State of Kerala v Mathai Verghese,
An act includes an illegal omission save where the contrary appears from the context.,
Where the causing of an effect in an offence if it is caused either by an act or by an,
"omission, the causing of that effect partly by an act and partly by an omission is the",
same offence (section 36). When an offence is committed by several persons,
"committing different acts, each person intentionally committing one of those acts,",
"either singly or jointly with others, commits the offence (section 37).",
Joint offenders.,
Where a criminal act is committed jointly by several persons the following principles,
will apply:—,
"1. When the act is done in furtherance of the common intention of all, each of such",
persons is liable for it in the same manner as if it were done by him alone (section 34).,
Mere presence does not create a presumption of complicity. A person not cognizant of,
"the intention of his companion to commit murder is not liable for murder, though he",
has joined his companion to do an unlawful act. There must be (i) a pre-arranged plan,
or a preconcert and (ii) in offences involving physical violence participation if section,
34 is to apply; both these factors must be established against the accused before he,
can be held liable under the section. Common intention or meeting of minds to bring,
about a particular result may well develop on the spot itself as between a number of,
persons. Joint responsibility was inflicted upon the sub-inspector (SI) in charge of a,
"police station where two police constables beat a person to death, though the SI",
himself had done no beating. Amar Singh v HP. It is not necessary that all must come,
together. State of MP v Mansingh. The Supreme Court examined the effect of mere,
presence at the place of occurrence. State of UP v Sohruntia.,
Leading cases:—Barendra Kumar Ghose v Mahbub Shah; Hari Om v State of UP; Suresh v,
State of UP.,
The Supreme Court has reiterated that there could rarely be direct evidence of common,
intention. Jhinku Nai.,
2. When the act is only criminal by reason of its being done with a criminal knowledge,
"or intention, each is liable only to the extent of his own knowledge or intention (section",
35).,
A person assisting the accused who actually performs the act must be shown to have,
"the particular intent or knowledge. If an act which is an offence, without reference to",
"any criminal knowledge or intention on the part of the doer, is done by several persons,",
each of them is liable for the offence.,
3. Where several persons are engaged or concerned in the commission of a criminal,
"act, they may be guilty of different offences by means of that act (section 38). Yunus v",
"State, 1995 Cr LJ 3205 (Del), where common intention was found only up to the stage",
"of causing hurt, though the end result of the crime was murder.",
"Section 34 deals with acts done with a common intention, section 38, with acts done",
with different intentions.,
"An act done under compulsions of survival, such as putting up huts on public-",
"footpaths, cannot be regarded as voluntary. (section 39)",
Leading case:—Olga Tellis v Bombay MC,
Punishment. Chapter III.,
The punishments to which offenders are liable are:—,
1. Death.,
2. Imprisonment for life.,
3. Imprisonment :,
"(i) Rigorous (i.e., with hard labour);",
(ii) Simple;,
(iii) Solitary.,
4. Forfeiture of property.,
5. Fine (section 63).,
Imposition of proper and appropriate sentence is a bounded obligation and duty of the,
court. The endeavour of the court must be to ensure that the accused received,
appropriate sentence. The sentence must be accorded to the gravity of the offence,
"(section 53) Gurumukh Singh v State of Haryana, AIR 2009 SC 2697 [LNIND 2009 SC",
847] . The Supreme Court explained guidelines for sentencing policy in State of MP v,
"Babu Nath, AIR 2009 SC 1810 [LNIND 2008 SC 2471] .",
Labour taken from prisoners must not be of obnoxious nature and payment must not,
"be less than the applicable minimum wage. Gurdev v HP, 1992 Cr LJ 2542 (HP).",
In addition to these there is punishment of detention in reformatories or Borstal,
Schools in the case of juvenile offenders (Act VIII of 1897 and other local Acts).,
Death.,
1. Sentence of death may be commuted without the consent of the offender by the,
appropriate Government for any other punishment (section 54). The punishment of,
death may be awarded in the following cases:—,
(1) Waging war against the Government of India (section 121).,
(2) Abetting mutiny actually committed (section 132).,
(3) Giving or fabricating false evidence upon which an innocent person suffers death,
(section 194).,
(4) Murder (section 302).,
Capital punishment should be confined to rarest of rare cases.,
Leading cases:—Bachan Singh. Machhi Singh. Munwar Harun Shah. Triveniben v State,
of Gujarat Madhu Mehta v UOI.,
Swamy Shraddananda (2) v State of Karnataka; Santosh Kumar Bariyar v State,
"(5) Abetment of suicide of a minor, or an insane or an intoxicated person (section 305).",
"(6) Attempt to murder by a person under sentence of imprisonment for life, if hurt is",
caused (section 307).,
(7) Dacoity accompanied with murder (section 396).,
Sentence of death may be awarded where a person who is under sentence of,
imprisonment for life commits murder (section 302).,
Section 303 has been struck down by the Supreme Court as void and unconstitutional,
being violative of both Articles 14 and 21 of the Constitution. R Rathinam v UOI. This,
decision was subsequently reversed in Gain Kaur v State of Punjab.,
Leading cases:—Mithu. Bhagwan Bax Singh.,
Causing death in custody by third degree methods should merit deterrent punishment.,
Leading case:—Gauri Shanker Sharma v State of UP.,
Imprisonment for life.,
"2. The appropriate Government may commute, without the consent of the offender, a",
sentence of imprisonment for life to imprisonment not exceeding 14 years (section 55).,
"In calculating fractions, imprisonment for life is reckoned as equivalent to 20 years",
(section 57).,
Leading case:—Gopal Vinayak Godse v State of Maharashtra.,
Imprisonment for life must be inflicted for being a 'thug' (section 311).,
Imprisonment.,
"3. In every case in which sentence of imprisonment for life shall have been passed, the",
"appropriate government may, without the consent of the offender, commute the",
punishment for imprisonment of either description for a term not exceeding 14 years,
(section 55);,
"The lowest term of imprisonment actually named for a given offence, viz., misconduct",
"by a drunken person, is 24 hours (section 510); but the minimum is unlimited except in",
two cases:—,
(1) If at the time of committing robbery or dacoity the offender uses a deadly weapon,
"or causes grievous hurt, or",
"(2) If while committing this offence he is armed with a deadly weapon, he is punished",
with imprisonment for not less than seven years (sections 397 and 398).,
"Sentence of imprisonment may be, in certain cases, wholly or partly rigorous or simple",
(section 60). But in two cases the imprisonment must be rigorous:—,
(1) Giving or fabricating false evidence with intent to procure conviction for a capital,
offence (section 194).,
(2) House-trespass to commit an offence punishable with death (section 449).,
There are 12 offences that are punishable with simple imprisonment only.,
The courts are expected to properly operate the sentencing system. The court should,
impose such sentence for proved offences as will serve as a deterrent for their,
"commission by others. The socio-economic status, prestige, race, caste of the accused",
or victim are irrelevant considerations in the policy of sentencing. State of Karnataka v,
Krishnappa (section 53).,
Solitary confinement.,
Solitary confinement may be inflicted for offences punishable with rigorous,
imprisonment. The offender may be kept in solitary confinement for any portion or,
"portions of his term of imprisonment, not exceeding three months in the whole. But the",
solitary confinement must not exceed—,
"one month, if the term of imprisonment does not exceed six months;",
"two months, if the term of imprisonment exceeds six months but does not exceed one",
year;,
"three months, if the term of imprisonment exceeds one year (section 73).",
"In executing a sentence of solitary confinement, such confinement must not exceed 14",
"days at a time, with intervals between the periods of solitary confinement of not less",
"duration than such period; and when the imprisonment awarded exceeds three months,",
the solitary confinement must not exceed seven days in any one month of the whole,
imprisonment awarded with intervals between the periods of solitary confinement of,
not less duration than such period (section 74).,
A sentence of solitary confinement for more than three months cannot be passed even,
if a person is convicted at one trial of more than one offence. Such confinement is,
awarded for offences under the Code only. Even then it cannot be awarded where,
imprisonment is not part of the sentence or where the imprisonment is in lieu of fine. It,
may be awarded in a summary trial. Solitary confinement must be imposed at intervals.,
"A sentence inflicting solitary confinement for the whole imprisonment is illegal, though",
not more than 14 days are awarded.,
Forfeiture.,
4. The punishment of forfeiture of the property of the offender has been abolished,
except in the following cases:—,
(1) Where a person commits depredation on the territories of any power at peace with,
"the Government of India, he is liable, in addition to other punishments, to forfeiture of",
"any property used, or intended to be used, in committing such depredation, or acquired",
thereby (section 126).,
(2) Where a person receives property taken as above mentioned or in waging war,
"against any Asiatic Power at peace with the Government of India, he is liable to forfeit",
such property (section 127).,
"(3) A public servant, who improperly purchases property, which, by virtue of his office,",
"he is legally prohibited from purchasing, forfeits such property (section 169).",
5. Fine is awarded as a sentence by itself in the following cases:—,
Fine.,
"(1) A person, in charge of a merchant vessel, negligently allowing a deserter from the",
"Army, Navy or Air Force to obtain concealment in such vessels is liable to a fine not",
exceeding Rs. 500 (section 137).,
"(2) The owner or occupier of land, on which a riot takes place or an unlawful assembly",
"is held, and any person having or claiming any interest in such land, and not using all",
"lawful means to prevent such riot or unlawful assembly, is punishable with fine not",
"exceeding Rs. 1,000 (section 154).",
(3) The person for whose benefit a riot has been committed not having duly,
endeavoured to prevent it (section 155).,
(4) The agent or manager of such person under like circumstances (section 156).,
(5) Illegal payments in connection with an election (section 171-H).,
(6) Failure to keep election accounts (section 171-I).,
(7) Voluntarily vitiating the atmosphere so as to render it noxious to the public health is,
punishable with fine of Rs. 500 (section 278).,
(8) Obstructing a public way or line of navigation is punishable with fine not exceeding,
Rs. 200 (section 283).,
(9) Committing of public nuisance not otherwise punishable is punishable with fine not,
exceeding Rs. 200 (section 290).,
"(10) Whoever publishes any proposal to pay any sum, or to deliver any goods, or to do",
"or forbear from doing anything for the benefit of any person, on any event or",
"contingency relative or applicable to the drawing of a ticket, lot, number, or figure, in any",
"such lottery, not being a State lottery or a lottery authorised by the State Government, is",
"punished with fine not exceeding Rs. 1,000 (section 294A).",
The general principal of law running through sections 63–70 is that the amount of fine,
"should not be harsh or excessive. Shantilal v State of MP, (2007) 11 SCC 243 [LNIND",
2007 SC 1171] .,
Imprisonment in default of fine.,
The following provisions regulate the character and duration of the sentence of,
imprisonment in default of payment of fine:—,
"Where an offender is sentenced to a fine, the court may direct that the offender shall in",
"default of payment suffer a term of imprisonment, which imprisonment may be in",
excess of any other imprisonment to which he may have been sentenced for the,
"offence, or to which he may be liable under a commutation of sentence (section 64).",
If the offence be punishable with imprisonment as well as fine such imprisonment must,
not exceed one-fourth of the term of imprisonment which is the maximum fixed for the,
offence (section 65); such extra imprisonment may be of any description to which the,
offender might have been sentenced for the offence (section 66).,
Leading case:—Ramjas v State of UP.,
"If such imprisonment is within the prescribed limits, it is not to be added to the",
substantive punishment.,
Leading case:—P Balaraman v State of TN.,
When the offence is punishable with fine only such imprisonment must not exceed,
two months when the amount of the fine does not exceed Rs. 50;,
"four months when the amount does not exceed Rs. 100, and for",
any term not exceeding six months in any other case (section 67).,
The imprisonment in such cases must be simple only.,
Such imprisonment terminates—,
(1) upon payment of the fine (section 68); or,
"(2) before the expiration of the term of imprisonment fixed in default of payment, if",
"such a proportion of the fine be paid, or levied, that the term of imprisonment suffered",
in default of payment is not less than proportional to the part of the fine still unpaid,
(section 69).,
"Fine may be levied within six years, or at any time during the term of imprisonment if it",
be longer than six years; the death of the offender does not discharge from the liability,
"any property which would, after his death, be legally liable for his debts (section 70).",
The limitation starts from the date of sentence of conviction by the trial Court:,
Palakdhari Singh.,
An offender who has undergone full term of imprisonment inflicted in default of,
payment of fine is still liable for the amount of fine. The Bombay High Court has laid,
down that movable property of the offender can alone be distrained and sold for the,
recovery of fine. But the Calcutta High Court has held that a suit can be brought to,
recover fine by the sale of immovable property of the offender.,
The Government may commute a sentence of,
Commutation of sentence.,
"(1) death, for any other punishment;",
"(2) imprisonment for life, for imprisonment for not more than 14 years (sections 54,",
55).,
The Government may commute without the offender's consent sentence in cases of,
death and imprisonment for life.,
Limit of punishment of offence made up of several offences.,
"(1) Where an offence is made up of parts, each of which constitutes an offence, the",
offender is not punished for more than one offence unless expressly provided.,
(2) Where an offence falls within two or more separate definitions of offences; or where,
"several acts of which one or more than one would, by itself or themselves, constitute",
"an offence, constitute when combined a different offence, the offender is not punished",
with a more severe punishment than the court which tries him could award for any one,
of such offences (section 71).,
Leading cases:—Roshan Lal; Puranmal.,
"The results of combination of section 220, Cr PC, 1973, with this section have been",
enumerated at p 48.,
Doubt as to nature of offence.,
"Where it is doubtful as to of which of the several offences a person is guilty, he is",
punished for the offence for which the lowest imprisonment is provided (section 72).,
Previous conviction.,
A person convicted by a Court in India of any offence,
"(a) relating to Coin and Government Stamps (Chapter XII), or",
(b) against property (Chapter XVII),
punishable with imprisonment for a term of three years or upwards shall be subject to,
"imprisonment for life, or to imprisonment for 10 years, if he is again guilty of any",
offence punishable under either of those Chapters with like imprisonment for the like,
term (section 75).,
The offender is subject to increased punishment on the ground that the punishment,
undergone has had no effect in preventing a repetition of the crime. The subsequent,
offence must also be punishable with not less than three years' imprisonment. If the,
subsequent offence is committed by a person previously to his being convicted of the,
first offence he cannot be subjected to enhanced punishment. Attempts not,
specifically made offences within Chapters XII and XVII are not governed by this,
provision. The previous conviction of an accused for an offence under these Chapters,
cannot be taken into consideration at a subsequent conviction for abetment of an,
offence under those Chapters.,
3. Overlapping provisions.—The fact of overlapping provisions about one or more,
"offence, does not rule out trial under any one of them. The case did not fall within the",
"Custom Act, 1962. It could not prevent trial under applicable provision of IPC, 1860. M",
"Natarajan v State, (2008) 8 SCC 413 [LNIND 2008 SC 1093] .",
General Exceptions. Chapter IV.,
The following acts are not offence under the Code:—,
1. Act of a person bound by law to do a certain thing (section 76).,
2. Act of a Judge acting judicially (section 77).,
3. Act done pursuant to an order or a judgment of a court (section 78).,
"4. Act of a person justified, or believing himself justified, by law (section 79).",
5. Act caused by accident (section 80).,
6. Act likely to cause harm done without criminal intent to prevent other harm (section,
81).,
7. Act of a child under seven years (section 82).,
8. Act of a child above seven and under 12 years but of immature understanding,
(section 83).,
9. Act of a person of unsound mind (section 84).,
10. Act of an intoxicated person (section 85).,
11. Act not known to be likely to cause death or grievous hurt done by consent of the,
sufferer (section 87).,
12. Act not intended to cause death done by consent of the sufferer (section 88).,
13. Act done in good faith for the benefit of a child or an insane person or by the,
consent of the guardian (section 89).,
14. Act done in good faith for the benefit of a person without consent (section 92).,
15. Communication made in good faith to a person for his benefit (section 93).,
16. Act done under threat of death (section 94).,
17. Acts causing slight harm (section 95).,
18. Acts done in private defence (sections 96–106).,
"1. Act done by a person bound, or by mistake of fact believing himself bound, by law",
(section 76).,
The general exception contained in section. 76–106 have the effect of converting an,
offence into a non-offence. They are of universal nature. They apply to the definition of,
"every offence. Shankar Narayan Bhadolkar v State of Maharashtra, AIR 2004 SC 1966",
[LNIND 2004 SC 1370] .,
The maxim respondent superior has no application to cases where an offence is,
committed by a subordinate official acting under the orders of his superior. The official,
is bound to exercise his own judgment and unless the actual circumstances are of,
such a character that he may have reasonably entertained the belief that the order was,
"one which he was bound to obey, he will be responsible for his act.",
Leading cases:—State of WB v Shew Mangal Singh. R v Latifkhan.,
"2. Act of a Judge when acting judicially in the exercise of any power which is, or which",
"in good faith he believes to be, given to him by law (section 77).",
A Judge will be protected where he is acting judicially and not ministerially. If he acts,
"without jurisdiction and without good faith, he would be responsible.",
3. Act done pursuant to the judgment or order of a Court of Justice while such,
"judgment or order remains in force, and the person doing the act in good faith believes",
that the Court has jurisdiction although it has not (section 78). This section differs,
from the preceding section on the question of jurisdiction. It protects officers acting,
under the authority of a judgment or order of a court even though the court has no,
"jurisdiction, provided the officer believed in good faith that the Court had jurisdiction.",
"4. Act done by a person justified by law, or who by reason of a mistake of fact, and not",
"by reason of a mistake of law, in good faith, believes himself to be justified by law to do",
it (section 79).,
Mistake is a slip made by chance. It is not mere forgetfulness. Under sections 76 and,
79 the mistake should be one of fact and not of law. An honest and reasonable belief in,
"the existence of circumstances, which, if true, would make the act for which a prisoner",
"is indicted an innocent act, is a good defence. An alleged offender is deemed to have",
"acted under that state of facts which he, in good faith and on reasonable grounds,",
believed to exist when he did the act alleged to be an offence. Iqnorantia facti doth,
"excusat, for such an ignorance many times makes the act itself morally involuntary. But",
"if an act is clearly a wrong in itself, and a person, under a mistaken impression as to",
"facts which render it criminal, commits the act, then he is guilty of an offence.",
Mistake of law is no defence because every person of the age of discretion is bound to,
"know the law, and presumed to do so. If a person infringes the statute law of the",
country through ignorance or carelessness he abides by the consequences of his error.,
The maxim ignorantiajuris non excusat admits of no exception in its application to,
criminal offences. Even a foreigner who cannot reasonably be supposed in fact to,
"know the law of the land is not exempted. Similarly, ignorance of a statute newly",
passed will not save a person from punishment.,
Leading cases:—R v Prince. R v Tolson. R v Esop. Bhawoo v Mulji. Mayer Hans George.,
Rajkapoor v Laxman.,
"Mayne deduces the following five rules, showing the extent to which ignorance of an",
"essential fact may be pleaded as a defence, from the judgments in Prince's case.",
"(a) Where an act is in itself plainly criminal, and is more severely punishable if certain",
"circumstances co-exist, ignorance of the existence of such circumstances is no answer",
to a charge for the aggravated offence.,
"(b) Where an act is prima facie innocent and proper, unless certain circumstances",
"coexist, then ignorance of such circumstances is an answer to the charge.",
"(c) Even in the last named case, the state of the defendant's mind must amount to",
absolute ignorance of the existence of the circumstance which alters the character of,
"the act, or to a belief in its non-existence.",
"(d) Where an act which is itself wrong is, under certain circumstances, criminal, a",
person who does the wrong act cannot set up as a defence that he was ignorant of the,
facts which turned the wrong into a crime.,
"(e) Where a statute makes it penal to do an act under certain circumstances, it is a",
question upon the wording and object of the particular statute whether the,
responsibility of ascertaining that the circumstances exist is thrown upon the person,
who does the act or not. In the former case his knowledge is immaterial.,
5. Accident. This must have been caused—,
"(1) without criminal knowledge or intention,",
"(2) in the doing of a lawful act,",
"(i) in a lawful manner,",
"(ii) by lawful means, and",
(iii) with proper care and caution (section 80).,
An 'accident' is something that happens out of the ordinary course of things.,
6. Act done with the knowledge that it is likely to cause harm but done in good faith and,
"without any criminal intention to cause harm, for the purpose of preventing, or avoiding,",
other harm to person or property (section 81).,
Mens rea,
"It is a maxim of English law that actus non facitreum, nisi mens sit rea (the intent and",
act must both concur to constitute a crime). A crime is not committed if the mind of,
the person doing the act in question be innocent. The above maxim has undergone a,
modification owing to the greater precision of modern statutes. Crimes are now more,
accurately defined by statutes than before. It has become necessary to look at the,
object of each Act that is under consideration to see whether and how far knowledge is,
of the essence of the offences created. In three cases mens rea is not an essential,
ingredient in an offence:,
"(1) cases not criminal in real sense, but which, in the public interest, are prohibited",
under a penalty;,
(2) public nuisances; and,
(3) cases criminal in form but which are only a summary mode of enforcing a civil right.,
"The above maxim has little application to offences under IPC, 1860, in its purely",
technical sense because the definitions of various offences expressly contain an,
"ingredient as to the state of mind of the accused. Under the Code, therefore, mens rea",
will mean one thing or another according to a particular offence. The guilty mind may,
"be a dishonest mind, or a fraudulent mind, or a rash or negligent mind, and so forth.",
It may be observed that criminal law has nothing to do with motives of offenders.,
Intention is quite different from motive. A person may do an act with a very high and,
laudable motive but if his act amounts to a crime he will be guilty. Where some Hindus,
removed cows from the possession of some Mohammedans to prevent the cows from,
"being slaughtered, they were held guilty of theft.",
Whether a person can for self-preservation inflict harm on others is discussed at p 64.,
Such acts will not exempt the offender from the full severity of law. It is murder to kill,
another to save one's own life.,
Leading cases:—R v Dudley (or Mignonette case). South Wark London Borough Council v,
Williams.,
7. Act done by a child under seven years (section 82); or by a child above seven and,
"under 12 years, who has not attained sufficient maturity of understanding to judge of",
the nature and consequences of his conduct (section 83).,
Leading case:—Hiralal.,
"8. Act done by a person who, at the time of doing it, by reason of unsoundness of mind,",
is,
"(1) incapable of knowing the nature of the act, or",
(2) that he is doing what is either wrong or contrary to law (section 84).,
"The 'unsoundness of mind' may be temporary or permanent, natural or supervening.",
But it must affect the cognitive faculties of the mind. If the offender is conscious that,
"the act was contrary to law and one which he ought not to do, he is punishable. The act",
"to be not punishable must be such as would have been excused by law, if the facts had",
been as the person of unsound mind supposed. Distinction has to be made between,
"legal insanity and medical insanity. Bapu v State of Rajasthan, (2007) 8 SCC 66 [LNIND",
2007 SC 774] .,
Leading cases:—R v M'Naughton. R v Lakshman. R v Sakharam. Dahyabhai. S W,
Mohammad. Ahamadulla.,
The doctrine of irresistible criminal impulse was not accepted by the Calcutta High,
Court.,
"9. Act done by a person who, at the time of doing it, by reason of intoxication, is",
(1) incapable of knowing the nature of the act; or,
(2) that he is doing what is either wrong or contrary to law:,
provided that the thing which intoxicated him was administered to him without his,
knowledge or against his will (section 85).,
"If an intoxicated person commits an offence requiring a particular intent or knowledge,",
"he is dealt with as if he had that intent or knowledge, unless the thing which intoxicated",
him was administered to him without his knowledge or against his will (section 86).,
Drunkenness is one thing and the disease to which it may lead is a different thing. If a,
"man by drunkenness, brings on a state of disease which causes such a degree of",
"madness, even for a time, which would relieve him of responsibility if it had been",
"caused in any other way, then he would not be criminally responsible.",
Leading cases:—Basdev. Director of Public Prosecutions v Beard. Davis.,
"10. Act not intended, and not known, to be likely to cause death or grievous hurt, done",
"by consent of the person, above 18 years to whom harm is caused (section 87).",
"Ordinary games, such as fencing, boxing, football and the like are protected by this",
section.,
"11. Act not intended, and not known to be likely to cause death, done in good faith by",
consent of the person to whom harm is caused for his benefit (section 88).,
Surgical operations are protected under this section.,
"12. Act done in good faith for the benefit of a person under 12 years, or of an insane",
"person, by or by the consent of his guardian. This exception does not extend to:—",
"(1) Intentional causing, or attempting to cause, death.",
"(2) The doing of anything which the doer knows to be likely to cause death, except to",
"prevent death or grievous hurt, or to cure any grievous disease or infirmity.",
"(3) Voluntary causing, or attempting to cause, grievous hurt (except as above).",
"(4) The abetment of any offence, to the committing of which it would not extend",
(section 89).,
A consent to be a true one must not have been given—,
(1) by a person under fear of injury;,
(2) by a person under a misconception of fact;,
"(3) by a person of unsound mind, and the person obtaining the consent knows or",
has reason to believe this;,
"(4) by a person who is intoxicated, and who is unable to understand the nature and",
consequence of that to which he gives his consent;,
(5) by a person under 12 years of age (section 90).,
"An honest misconception by both the parties, however, does not invalidate the consent.",
Leading case:—Williams.,
"Sections 87, 88 and 89 do not extend to acts which are offences independently of any",
"harm which they may cause to the person giving the consent (section 91), e.g., causing",
"miscarriage, public nuisance, offences against public safety, etc.",
"13. Act done in good faith for the benefit of a person, even without consent, if it is",
"impossible for him to give consent, or is incapable of giving it, and there is no guardian",
from whom it is possible to obtain it in time for the thing to be done with benefit,
"(section 92). This exception is subject to the same provisos as section 89, with the",
difference that it will not extend to causing hurt except to prevent death or hurt.,
"14. A communication made in good faith, although causing harm to the person to",
"whom it is made, if it is for his benefit (section 94), e.g., communication in good faith",
by a surgeon to a patient that in his opinion he cannot live.,
"15. Act [except (a) murder, and (b) offence against the State punishable with death]",
"done under threats which, at the time of doing it, reasonably cause the apprehension of",
"instant death; provided the doer did not of his own accord, or from an apprehension of",
"harm short of death, place himself in the situation by which he became subject to such",
constraint (section 94). Fear of grievous hurt is not a sufficient justification. Mere,
menace of future death will not be sufficient.,
No one can plead the excuse of necessity or compulsion as a defence to an act,
otherwise penal except as provided by this section.,
Leading cases:—R v Deoji. R v Latifkhan. R v Maganlal.,
16. Act causing such a slight harm that no person of ordinary sense and temper would,
complain of it (section 95).,
This section deals with those cases which come within the letter of the penal law but,
not within its spirit. It is based on the maxim de minimis non curatlex (the law does not,
take account of trifles).,
Private defence.,
17. Act done in exercise of the right of private defence (section 96). Every person has a,
"right, subject to certain restrictions, to defend,",
(1) his own body and the body of any other person against any offence affecting the,
human body;,
"(2) the property, whether movable or immovable, of himself or of any other person,",
"against any act, which is an offence falling under the definition of theft, robbery,",
"mischief, or criminal trespass, or which is an attempt to commit any of such offences",
(section 97).,
"(3) against an act, which would otherwise be a certain offence, but is not that offence,",
"by reason of the doer being of unsound mind, a minor, an intoxicated person, or a",
person acting under a misconception of fact (section 98).,
The right of private defence is a defence right. It is neither a right of aggression nor of,
"reprisal. Thankachan v State of Kerala, (2008) 17 SCC 760 . The right is available not",
only to the person put in danger but also to any member of the society who rises to the,
occasion with a spirit of rescue. Such a samaritan gets no legal right against the,
"person rescued. Kashi Ram v State of Rajasthan, (2008) 3 SCC 55 [LNIND 2008 SC 187]",
.,
Exceptions to the right of private defence.,
There is no right of private defence against the following acts:—,
"(1) An act which does not reasonably cause apprehension of death or of grievous hurt,",
"if done, or attempted to be done, by a public servant acting in good faith under colour",
"of his office, though that act may not be strictly justifiable by law.",
(2) Same as above if done by the direction of a public servant.,
(3) Cases in which there is time to have recourse to the protection of public authorities,
(section 99).,
Leading Cases:—Amjadkhan. Jaidev.,
The right of private defence does not extend to the inflicting of more harm than it is,
necessary to inflict for the purpose of defence (ibid).,
Defence of body.,
The right of private defence of the body extends to the causing of death or any other,
harm to the assailant under the following circumstances:—,
(1) An assault causing reasonable apprehension of death.,
In this case if the defender be so situated that he cannot exercise the right without risk,
"of harm to an innocent person, he may even run that risk (section 106).",
(2) An assault causing reasonable apprehension of grievous hurt.,
(3) An assault with the intention of committing rape.,
(4) An assault with intention of gratifying unnatural lust.,
(5) An assault with intention of kidnapping or abducting.,
(6) An assault with the intention of wrongfully confining a person under circumstances,
which may cause him to apprehend that he will be unable to have recourse to the public,
authorities for his release.,
"(7) ""Seventhly.—An act of throwing or administering acid or an attempt to throw or",
administer acid which may reasonably cause the apprehension that grievous hurt will,
"otherwise be the consequence of such act"" (section 100).",
Leading case:—Vishwanath.,
"Subject to the above restrictions, the right of private defence of body extends to the",
causing of any harm short of death (section 101).,
It commences as soon as a reasonable apprehension of danger to the body arises,
"from an attempt or threat to commit the offence, though the offence may not have",
been committed; and it continues as long as such apprehension of danger to the body,
continues (section 102).,
Defence of property.,
The right of private defence of property extends to the causing of death or any other,
harm to the assailant under the following circumstances:—,
(1) Robbery.,
(2) House-breaking by night.,
"(3) Mischief by fire to building, tent, or vessel, used as human dwelling or for custody of",
property.,
"(4) Theft, mischief, or house-trespass, reasonably causing the apprehension of death or",
grievous hurt (section 103).,
"Subject to the above restrictions, the right of private defence of property extends to the",
causing of any harm short of death (section 104). It commences when a reasonable,
apprehension of danger to the property commences and continues against—,
"(1) Theft, till",
"(a) the offender has affected his retreat with the property, or",
"(b) the assistance of the public authorities is obtained, or",
(c) the property has been recovered.,
"(2) Robbery, as long as",
"(a) the offender causes or attempts to cause to any person death, or hurt, or",
"wrongful restraint, or",
"(b) the fear of instant death, or of instant hurt, or of instant personal restraint",
continues.,
(3) Criminal trespass or mischief as long as the offender continues in the commission,
"of criminal trespass, or mischief.",
"(4) House-breaking by night, as long as the house-trespass, which has been begun by",
"such house-breaking, continues (section 105).",
All the provisions relating to private defence from section 96 to section 106 have to be,
read together in order to have a proper grasp of the scope and limitations of this right.,
Leading case:—Munney Khan v State.,
Excessive use of the right of private defence is a matter which can be determined only,
on the facts of each case. It necessitates a combined view of subjective and objective,
factors.,
Leading case:—Yogendra Morarji.,
"Mere verbal exchanges, however hot or abusive, do not create the right of private",
defence.,
Leading case:—Jai Chand v State.,
There is no right of private defence in a free fight.,
Leading case:—Sikhar Bahera v State of Orissa.,
An aggressor has no right of private defence.,
"Leading case:—Dhananjai v State of UP, AIR 1996 SC 556 .",
"Abetment, Chapter V.",
There are three kinds of abetment dealt with in the Code. A person abets the doing of a,
"thing, who",
(1) instigates any person to do that thing; or,
"(2) engages with one or more other person or persons, in any conspiracy for the doing",
"of that thing, if an act or illegal omission takes place in pursuance of the conspiracy",
and in order to the doing of that thing; or,
"(3) intentionally aids, by any act or illegal omission, the doing of that thing.",
"An abettor can be convicted, except in some cases, even where the principal culprit",
stands acquitted.,
Leading cases:—Hardhan Chakrabarty v UOI Faguna Kedar Nath v State of Bihar Jamuna,
Singh v State of Bihar.,
"Abetment is separate and independent offence. Kishori Lal v State of MP, (2007) 10 SCC",
297 .,
The law of abetment is adapting itself to the social malaise of dowry which leads to,
suicides by married women.,
Leading cases:—Gurbachan Singh v Satpal Singh. Brij Lal v Prem Chand.,
"A person who, by wilful misrepresentation, or by wilful concealment of a material fact",
"which he is bound to disclose, voluntarily causes or procures, or attempts to cause or",
"procure, a thing to be done, is said to instigate the doing of that thing (section 107).",
Leading Cases:—Pratima Datta. Shri Ram.,
It is not necessary that the person incited should have a mens rea corresponding to,
that of the inciter DPP v Armstrong.,
An abettor is a person who abets,
"(a) the commission of an offence, or",
"(b) the commission of an act which would be an offence, if committed by a person",
"capable by law of committing an offence, with the same intention or knowledge as that",
of the abettor (section 108).,
It should be noted that—,
"(1) Abetment of an illegal omission may amount to an offence (ib.,Explanation 1).",
"(2) It is not necessary that the act abetted should be committed (ib.,Explanation 2).",
"(3) The person abetted need not be capable of committing an offence, nor have any",
"guilty intention or knowledge (ib.,Explanation 3).",
"(4) The abetment of an abetment is an offence (ib.,Explanation 4).",
(5) It is not necessary in abetment by conspiracy that the abettor should concert the,
"offence with the person abetted (ib., Explanation 5).",
(6) A person will be guilty of abetment who abets the commission of any act without,
and beyond India which would constitute an offence if committed in India (section,
108A).,
"If the act abetted is committed but no express provision is made for its punishment,",
then it shall be punished with the punishment provided for the offence abetted (section,
109).,
If a person abetted does the act with a different intention or knowledge from that of the,
"abettor, the latter will be punished as if the act had been done with his intention or",
knowledge (section 110). The liability of the person abetted is not affected by this,
section.,
"If the act done is different from the one abetted, the abettor is still liable for it, if it is a",
"probable consequence of the abetment, and committed under the influence of the",
abetment (section 111). The liability is the same where the effect produced is different,
from that intended by the abettor (section 113).,
The abettor is liable to cumulative punishment for the act abetted and for the act done,
if the latter is a distinct offence (section 112).,
"If the abettor is present when the offence abetted is committed, he is deemed to have",
committed such act or offence (section 114).,
Mere presence will not render a person liable. He must be sufficiently near to give,
"assistance, and he must participate in the act, no matter whether he is an eye-witness",
to the transaction or not. Presence during the whole transaction is not necessary (ibid).,
Lending encouragement and assistance would amount to abetment even if the abettor,
was not present at the place where the killing took place. R v Cook. A constable who,
"kept watch while the head constable was committing rape inside their police station,",
was held liable as an abettor. Ram Kumar v State of HP.,
If an offence punishable with death or imprisonment for life is abetted and no express,
"provision is made for the punishment of such abetment, then the offender will be",
punished with imprisonment extending to seven years if the offence is not committed;,
"but if an act causing harm is done in consequence, the imprisonment shall be extended",
to 14 years (section 115). If in such a case the offence is punishable with,
"imprisonment, then the offender is punishable with imprisonment which may extend to",
one-fourth part of the longest term provided for that offence (section 116). If in the,
above case the abettor or person abetted be a public servant whose duty it is to,
"prevent such offence, the imprisonment may extend to one-half of the longest term",
provided for the offence (ibid).,
Abetting commission of an offence by the public or by more than ten persons is,
punishable with imprisonment extending to three years (section 117).,
There are three sections which punish concealment of a design to commit offences by,
"persons other than the accused, viz., sections 118, 119 and 120.",
Criminal conspiracy. Chapter VA.,
Criminal conspiracy is now a substantive offence under the Code. It was formerly,
punishable only as a species of abetment. It arises when two or more persons agree to,
do or cause to be done—,
(a) an illegal act; or,
"(b) an act which is not illegal, by illegal means.",
"Such an agreement may be to commit an offence. But if it is not so, it is necessary that",
some overt act besides the agreement is done by one or more parties to such,
"agreement in pursuance thereof (section 120A) SC Bahri v State of Bihar, (Supreme",
"Court). It is difficult to prove conspiracy by direct evidence, Hina Lal Harilal. If the",
"offence conspired to is punishable with death, imprisonment for life or rigorous",
"imprisonment for two years or upwards, the offender is punishable in the same manner",
"as an abettor: but in any other case, he is liable to be punished with rigorous",
"imprisonment for six months, or fine, or both (section 120B). Conspiracy has to be",
treated as a continuing offence.,
A single person can be tried and convicted for the offence. It is not necessary that,
conspirators must be known to each other or that every one of them should have taken,
part in each and every act done in pursuance of the conspiracy. A wife joining her,
husband with knowledge that he was involved in a conspiracy with others was held to,
be equally guilty. R v Charstny.,
Leading cases:—Mirza Akbar. Bhagat Ram. Bhagwandas. V C Shukla. Kehar Singh,
Krishan Lal Pradhan Vinayak,
Offences against the State. Chapter VI.,
Offences against the State may be classified as follows:—,
I. Waging war against the Government of India.,
II. Assaulting high officers.,
III. Sedition.,
IV. Waging war against a Power at peace with the Government of India.,
V. Permitting or aiding the escape of a State prisoner.,
I. Waging war against the Government of India.,
"1. Waging or attempting to wage war, or abetting waging of war (section 121).",
"2. Conspiring to commit, within or without India, offences punishable by section 121",
(section 121A).,
"3. Collecting men, arms, or ammunition, or making any other preparation with a view to",
waging such war (section 122).,
4. Concealing a design to wage war with intent to facilitate waging of such war by any,
act or illegal omission (section 123).,
"II. Assaulting the President, or the Governor of any State, with intent to compel or",
restrain the exercise of any lawful power (section 124).,
Sedition.,
"III. A person commits sedition who,",
"(1) by words (spoken or written), or by visible representation,",
"(2) brings or attempts to bring into hatred or contempt, or excites or attempts to excite",
"disaffection towards,",
(3) the Government established by law in India (section 124A).,
It should be noted that—,
"(1) 'Disaffection' includes disloyalty and feeling of enmity (ibid.,Explanation 1).",
(2) Comments expressing disapprobation of the measures of Government to obtain,
"their alteration, without exciting hatred, contempt, or disaffection, do not constitute this",
"offence (ibid., Explanation 2).",
"(3) Comments expressing disapprobation of the administrative actions of Government,",
"without exciting hatred, contempt, or disaffection, do not constitute this offence (ibid.,",
Explanation 3).,
"Under the Constitution, criticism of the Government exciting disaffection or bad",
feelings towards it is not to be regarded as a justifying ground for restricting the,
freedom of expression and of the press unless it is such as to undermine the security,
of or tend to overthrow the Government. This section is not ultra vires the Constitution.,
Anyone who uses in any way words or printed matter for the purpose of exciting,
"disaffection, be he the writer of those words or not, is liable. Publication of some kind",
is necessary. The successful exciting of feelings of disaffection is placed on the same,
footing as the unsuccessful attempt to excite them.,
The law does not excuse the publication in newspapers of seditious writing copied,
from other papers. The editor of a paper is liable for seditious letters appearing in the,
paper.,
Leading cases:—R v Bal Gangadhar Tilak. R v Jogendra Chandra Bose (or Bangobasi,
case). Romesh Thappar. Kedar Nath.,
IV. Waging war against a Power at peace with the Government of India.,
"1. Waging, attempting to wage, or abetting the waging of such war against the",
Government of any Asiatic Power at peace with the Government of India (section 125).,
"2. Committing, or preparing to commit, depredation on the territories of any Power at",
peace with the Government of India (section 126).,
"3. Receiving any property, knowing the same to have been taken in the commission of",
any of the offences mentioned in the two last preceding sections (section 127).,
V. Permitting or aiding the escape of a State prisoner.,
"1. Public servant voluntarily allowing a prisoner of State or war, in his custody, to",
escape (section 128).,
"2. Public servant negligently suffering a prisoner of State or war in his custody, to",
escape (section 129).,
"3. Aiding the escape, or rescuing, or attempting to rescue or harbouring, or concealing",
"or resisting the recapture, of such prisoner (section 130).",
"Army, Navy & Air Force offences. Chapter VII.",
"No person, subject to Articles of War, is subject to punishment under this Code for any",
"offence relating to the Army, Navy and Air Force defined in this Chapter (section 139).",
"This Chapter is framed in order that persons, not military, who abet a breach of military",
"discipline, should not be liable under the military penal law but under the Code.",
"The following offences relating to the Army, Navy and Air Force find place in the Code:",
—,
"1. Abetting mutiny, or attempting to seduce any officer, soldier, sailor, or airman, from",
his allegiance or duty (section 131).,
"2. Abetment of mutiny, if mutiny is committed in consequence (section 132).",
"3. Abetment of an assault by an officer, soldier, sailor or airman, on his superior officer,",
when in the execution of his office (section 133).,
4. Abetment of such an assault if the assault is committed (section 134).,
"5. Abetment of the desertion of an officer, soldier, sailor, or airman (section 135).",
6. Knowingly harbouring deserter (section 136).,
"7. Concealment of deserter from Army, Navy or Air Force of the Government of India",
concealed on board a merchant vessel through negligence of master or person in,
charge of the vessel though he is ignorant of such concealment (section 137).,
"8. Abetment of act of insubordination by an officer, soldier, sailor, or airman, the act",
abetted being actually committed in consequence of the abetment (section 138).,
"9. Wearing the garb, or carrying any token resembling any garb or token used by a",
"soldier, sailor or airman with the intention that it may be believed that the wearer is a",
"soldier, sailor or airman (section 140). The gist of the offence is the intention of the",
"accused. Merely wearing a soldier's dress without the specific intention is no offence,",
"e.g., actors put on soldier's garb while acting on the stage.",
There are six sections in the Code dealing with false personation—,
1. Personation of a soldier (section 140).,
2. Personation of a public servant (section 170).,
3. Wearing the garb or carrying the token used by a public servant (section 171).,
4. Personation of a voter at an election (section 171D).,
5. Personation for the purpose of an act or proceeding in a suit or prosecution (section,
205).,
6. Personation of a juror or assessor (section 229).,
Public tranquillity. Chapter VIII.,
Offences against public tranquillity hold a middle place between the State offences on,
the one hand and crimes against person and property on the other. They are four:,
I. Unlawful Assembly. different,
II. Rioting.,
III. Promoting enmity between classes.,
IV. Affray.,
Unlawful assembly.,
"I. An 'unlawful assembly' is an assembly of five or more persons, if their common",
object is,
1. To overawe by criminal force—,
"(a) the Central or any State Government, or",
"(b) the Parliament, or",
"(c) the Legislature of any State, or",
(d) any public servant in the exercise of his lawful power.,
2. To resist the execution of law or legal process.,
"3. To commit mischief, criminal trespass, or other offences.",
4. By criminal force—,
"(a) to take or obtain possession of any property, or",
"(b) to deprive any person of any incorporeal right, or",
(c) to enforce any right or supposed right.,
5. By criminal force to compel any person—,
"(a) to do what he is not legally bound to do, or",
(b) to omit what he is legally entitled to do (section 141).,
"[Six months, or fine, or both. If armed with a deadly weapon, two years, or fine, or both",
"(sections 143, 144).]",
The assembly must consist of five or more persons. It is immaterial whether the,
"common object is in their minds when they come together, or whether it occurs to them",
afterwards. There must be some present and immediate purpose of carrying into effect,
the common object. A meeting for deliberation only is not an unlawful assembly.,
Persons maintaining their own right or supposed right against the aggression of other,
people do not commit this offence. Common object means same or similar object; it is,
not necessary to have a preconcert or prior meeting of minds.,
An assembly not unlawful when it assembled may subsequently become an unlawful,
"one (section 143, Explanation). Illegal acts of one or two members do not change the",
"lawful character of an assembly. Similarly, a lawful assembly does not become",
unlawful merely because the members know that their assembly would be opposed,
and a breach of the peace would be committed.,
"Whoever, being aware of facts which render an assembly an unlawful one, intentionally",
"joins it, or continues in it, is a member of that assembly (section 142). Persons may",
"have associated themselves with a mob from perfectly innocent motives, but if the",
"mob becomes an unlawful assembly, and they take part in its proceedings, they will be",
liable. Every such member is deemed guilty of an offence committed in prosecution of,
the common object. There must be nexus between the common object and the offence,
committed.,
Leading case:—Allauddin Mia.,
If an offence is committed by any member of an unlawful assembly in prosecution of,
"the common object of that assembly, or such as the members of that assembly knew",
"to be likely to be committed in prosecution of that object, every person who, at the time",
"of the committing of that offence, is a member of the said assembly, is guilty of that",
offence (section 149). This section prevents the accused from putting forth the,
defence that he did not with his own hand commit the offence committed in,
prosecution of the common object. Common object does not mean common intention.,
"All will be guilty of any offence done in prosecution of the common object, though there",
was no common intention to commit the offence as a means to the end. But members,
of an unlawful assembly may have a community of object only up to a certain point and,
beyond that they may differ in their objects.,
Leading cases:—R v Sabedali; Dalip Singh; Khudiram; Mushakhan; Beatty v Gillbanks.,
The common object may develop at the spot itself.,
Leading case:—Vithal Bhimshah Kali.,
Other cognate offences—,
1. Joining an unlawful assembly armed with a deadly weapon (section 144).,
2. Joining or continuing in an unlawful assembly knowing it has been commanded to,
disperse (section 145).,
3. Hiring of persons to join an unlawful assembly (section 150).,
4. Harbouring persons hired for an unlawful assembly (section 157).,
5. Being hired to take part in an unlawful assembly (section 158).,
"Persons, who are engaged or hired to do any of the acts which make an assembly",
"unlawful, are likewise punished (ibid).",
Riot.,
"II. When (1) force of violence is used, (2) by an unlawful assembly or by any member",
"thereof, (3) in prosecution of the common object, every member is guilty of rioting",
"(section 146). [Two years or fine, or both. If armed with a deadly weapon, Three years,",
"or fine, or both (section 148).]",
Riot is an unlawful assembly in a particular state of activity. To constitute the offence,
of rioting it must be proved:,
"(1) that the accused, being five or more in number, formed an unlawful assembly;",
(2) that they were animated by a common unlawful object;,
(3) that force or violence was used by the unlawful assembly or any member of it;,
and,
(4) that such force was used in prosecution of the common object.,
"If the common object of an assembly is not illegal, it is not rioting even if force is used",
by a member of it. If persons lawfully assembled for any purpose suddenly quarrel they,
do not commit riot.,
Other cognate offences—,
1. Rioting with deadly weapons (section 148).,
2. Hiring or conniving at hiring of persons to join unlawful assembly (section. 150).,
3. Assaulting or obstructing a public servant in the suppression of a riot (section.,
152).,
4. Malignantly or wantonly giving provocation with intent to cause riot (section.,
153).,
Liability of persons who provide space,
"Liability of persons who own, occupy, or have an interest in land, is governed by the",
following provisions:,
"(1) The owner, or any person having or claiming an interest in land upon which an",
"unlawful assembly is held, or riot is committed, is punishable with Rs. 1,000 fine, if he",
or his agent (a) knowing of the offence do not give the earliest notice thereof at the,
nearest police station; or (b) believing the offence likely to be committed do not use,
any lawful means to prevent it; or (c) in the event of the offence taking place do not use,
all lawful means to disperse the unlawful assembly or suppress the riot (section 154).,
(2) Where a riot is committed on behalf of a person who is the owner or occupier of,
"land respecting which such riot takes place, or who claims any interest in such land, or",
"in the subject of any dispute which caused the riot, such person is liable to a fine, if he",
"or his agent having reason to believe that the riot is likely to be committed, or the",
"unlawful assembly causing the riot is likely to be held, fails to use all lawful means for",
"preventing the riot, or for suppressing and dispersing the same (section 155).",
"Under similar circumstances, the agent or manager is punishable likewise (section",
156).,
"Promoting enmity, etc.",
"III. (a) Promoting disharmony or enmity or hatred or ill-will between different religious,",
"racial, language, caste or community groups on grounds of religion, race, language,",
"caste or community, or",
(b) Committing act which is prejudicial to the maintenance of harmony or disturbing,
"public tranquillity,",
"by words or signs, or visible representations, or otherwise [Three years, or fine, or both].",
(c) Committing offence as stated in paras (a) and (b) in a place of worship or in any,
assembly engaged in religious worship or ceremonies (section 153A). [Five years and,
fine].,
"(d) Knowingly carrying arms in any procession or organizing, or holding taking part in",
ant mass drill mort mass training with (section 153AA) [Six months and fine.],
Leading cases:—Babu Rao Patel. Varsha Publications Pvt Ltd. Nand Kishore Singh.,
Chandanmal Chopra.,
Affray.,
"IV. When (1) two or more persons, (2) by fighting in a public place, (3) disturb the public",
"peace, they commit an affray (section 159). [One month or Rs. 100, or both (section",
160).],
"The word 'affray' is derived from the French word affraier, to terrify. An 'affray' is an",
offence against the public peace because it is committed in a public place and is likely,
"to cause general alarm and disturbance. 'Public place' is a place where the public go,",
no matter whether they have a right to go or not. No quarrelsome or threatening words,
will amount to an affray.,
An 'affray' differs from a 'riot'.,
"(1) An affray cannot be committed in a private place, a riot can be.",
"(2) An affray is committed by two or more persons, a riot by five or more.",
(3) A riot is more severely punishable than an affray.,
Persons other than the actual rioters are punishable in respect of riot in the following,
cases:—,
(1) Owner or occupier of land on which an unlawful assembly is held (section 154).,
(2) The person for whose benefit a riot is committed (section 155).,
(3) The agent of owner or occupier for whose benefit a riot is committed(section 156).,
"(4) One who knowingly harbours, in any house or premises under his control, any",
persons being or about to be hired or employed as members of an unlawful assembly,
(section 157).,
"(5) One who is engaged, or hired, or offers to be hired, to do or assist in doing any of",
"the acts specified in s. 141, as making an assembly unlawful (section 158).",
Offences by or relating to public servants. Chapter IX.,
Chapter IX deals with offences by or relating to public servants. They are as follows:—,
Note:Sections 161 to 165A have been repealed by the Prevention of Corruption Act,
"(vide, amendment of 1988).",
"1. Whoever being, or expecting to be, a public servant",
"(i) accepts or obtains, or agrees to accept, or attempts to obtain, any",
"gratification other than legal remuneration,",
(ii) as a reward for,
"(a) doing or forbearing to do any official act, or",
(b) showing or forbearing to show favour or disfavour to any person in,
"the exercise of his official functions, or",
(c) rendering or attempting to render any service or dis-service to any,
"person, with the Central or any State Government or Parliament or",
"the Legislature of any State, or a public servant,",
"is guilty of taking illegal gratification (section 161). [Three years, or fine or both.] It is",
"essential that the gratification should be obtained ""as a motive or reward"".",
Leading cases:—Mahesh. Maha Singh. R S Nayak v A R Antulay.,
2. Taking a gratification in order by corrupt or illegal means to influence a public,
"servant (section 162). [Three years, or fine or both.]",
3. Taking a gratification for the exercise of personal influence with a public servant,
"(section 163). [One year's simple imprisonment, or fine, or both.]",
4. Public servant abetting either of the two last mentioned offences (section 164).,
"5. Public servant obtaining any valuable thing, without consideration, from a person",
concerned in any proceeding or business transacted by such public servant (section,
165).,
6. Abetting a public servant in committing an offence under section 161 or section 165,
(section 165A).,
7. Public servant knowingly disobeying law with intent to cause injury to any person,
(section 166).,
9. Public servant disobeying direction under law (section 166A).,
10. Punishment for non-treatment of victim (166B).,
8. Public servant framing or translating a document in a way which he knows or,
"believes to be incorrect, intending to cause injury to any person (section 167).",
9. Public servant unlawfully engaging in trade (section 168).,
10. Public servant unlawfully buying or bidding for property (section 169).,
"11. Personating a public servant, and doing or attempting to do an act in such assumed",
character under colour of office (section 170).,
12. Wearing a garb or carrying a token used by a public servant with fraudulent intent,
(section 171).,
Offences relating to elections. Chapter IXA.,
"Chapter IXA deals with offences relating to elections. It seeks to make punishable,",
"under the ordinary penal law, bribing, undue influence, and personation, and certain",
other malpractices at elections. It applies to membership of any public body where the,
law prescribes a method of election. Persons guilty of malpractices are debarred from,
holding positions of public responsibility for a specified period. The following are,
deemed to be offences under this chapter:—,
1. Giving or accepting gratification with the object of exercising any electoral right,
"(section 171B). Gratification includes treating, i.e., giving of food, drink, entertainment",
or provisions (section 171E).,
"2. Interfering with the free exercise of any electoral right (clause 1), threatening any",
"candidate or voter, or any person in whom he is interested, with injury of any kind; or",
inducing any candidate or voter to believe that he or any person in whom he is,
interested will become an object of Divine displeasure or of spiritual censure (clause 2),
(section 171C).,
Something more than a mere act of canvassing would be necessary: Charan Lal Sahu v,
Giani Zail Singh.,
3. Personation at an election (section 171D).,
4. Publishing false statements in relation to the personal character or conduct of any,
candidate (section 171G).,
5. Illegal payments in connection with an election (section 171H).,
6. Failure to keep election accounts (section 171I).,
Contempt of the authority of public servants. Chapter X.,
Chapter X deals with contempt of the lawful authority of public servants. It contains,
those provisions which are intended to enforce obedience to the lawful authority of,
public servants.,
The following provisions relate to wilful omission or evasion of the performance of a,
public duty:—,
"1. Absconding to avoid service of a summons, notice, order or other proceeding from a",
public servant (section 172).,
'Absconding' here means simply hiding. The section does not speak of a warrant.,
"2. Preventing service of summons or other proceeding, or removing the same from any",
"place to which it is lawfully affixed, or preventing the making of any proclamation under",
due authority of publication thereof (section 173).,
"3. Non-attendance, in obedience to a summons, notice, order, or proclamation",
"proceeding from a public servant in person or by agent, or having attended, departing",
before it is lawful to depart (section 174).,
4. Non-appearance in response to a proclamation under section 82 of Act 2 of 1974,
(section 174A),
[Failure by person released on bail or bond to appear in court is an offence under,
section 229A.],
The attendance must be in a place in India. The summons should be specific in its,
"terms as to the title of the Court, the place at which, the day, and the time of the day",
when the attendance is required. A verbal order is quite sufficient. Mere affixing of,
summons to a house is not enough; personal service must be attempted.,
4. Intentional omission to produce or deliver up any document to a public servant by,
person legally bound to produce such document (section 175).,
"5. Intentional omission to give, or furnish, at the time and in the manner aforesaid by",
"law, any notice or information to a public servant (section 176).",
"6. Section 202, though not appearing in this Chapter, punishes intentional omission to",
give information of offence by person bound to inform.,
7. Intentional omission to assist public servant in the execution of his duty when bound,
by law to give assistance (section 187).,
A person refusing to give true information to a public servant will be liable under the,
following circumstances:—,
1. Refusing on oath or affirmation to state the truth when required by a public servant,
legally competent to require it (section 178).,
The penalty of the section would not be attracted where the refusal to take oath would,
be justifiable: Kiran Bedi and Inder Singh v Commission of Inquiry.,
"2. Refusing by a person legally bound to state the truth, to answer any question,",
demanded of him by a public servant authorized to question (section 179).,
A person examined under section 161 of Cr PC is now legally bound to state the truth.,
Leading case:—Nandini Sathpathy.,
3. Refusing to sign any statement made by the party when required by a public servant,
legally competent to require that he shall sign it (section 180).,
A person giving false information to a public servant is liable in the following cases:—,
"1. Furnishing, as true, information which the person furnishing same, being legally",
"bound to furnish, knows or has reason to believe to be false [six months simple",
"imprisonment, Rs. 1,000 fine]. If the information respects the commission of an",
"offence, or prevention of it, or the apprehension of an offender—two years'",
imprisonment or fine (section 177).,
"2. False statement on oath to a public servant, or person authorised to administer oath,",
by a person legally bound to state the truth on the subject in question (section 181).,
This section refers to cases in which the false statements are made to any public,
servant in proceedings other than judicial.Section 191 refers to judicial proceedings.,
3. Whoever gives to any public servant any information which he knows or believes to,
"be false, intending thereby to cause, or knowing it to be likely that he will thereby cause,",
such public servant—,
(a) to do or omit to do anything which such public servant ought not to do or omit if,
the true state of facts respecting which such information is given were known by,
"him, or",
(b) to use the lawful power of such public servant to the injury or annoyance of any,
person (section 182).,
"4. Section 203, though not appearing in this chapter, punishes the giving of false",
information respecting an offence.,
The following provisions deal with obstructing or disobeying a public servant:—,
1. Resistance to the taking of property by the lawful authority of a public servant,
(section 183).,
2. Obstructing the sale of property offered for sale by the lawful authority of a public,
servant (section 184).,
"3. Illegal purchase or bid for property, offered for sale by the authority of a public",
"servant, on account of any person, whether himself or any other, who is under a legal",
"incapacity to purchase that property at such sale, or bid for such property not intending",
"to perform the obligation thereby, incurred (section 185).",
4. Obstructing a public servant in the discharge of his public functions (section 186).,
5. Intentional omission to assist public servant in the execution of his duty when bound,
by law to give assistance (section 187).,
6. Knowingly disobeying an order 'promulgated by a public servant lawfully empowered,
to promulgate it' (section 188). [If such disobedience tends to cause obstruction or,
"injury to any person lawfully employed, then the punishment is simple imprisonment for",
"one month, or Rs. 200 fine, or both. If it causes riot or affray, or danger to human life,",
"health or safety, then with imprisonment of either description for six months, or Rs.",
"1,000 fine, or both].",
"For violation of a curfew order under section 144 Cr PC, 1973, only a prosecution under",
"section 188, IPC, 1860, can be launched in an appropriate case but no ""shoot to kill""",
order is justified merely on that account.,
Three things are necessary—,
"(1) A lawful order promulgated by a public servant,",
"(2) knowledge of the order and disobedience of it, and",
(3) the adverse result that is likely to follow from such disobedience.,
"Disobedience per se of an order promulgated under section 144 Cr PC, 1973, is not an",
offence and that it is necessary to prove that the disobedience would have tended to,
"have certain results mentioned in section 188 IPC, 1860.",
Leading cases:—Saroj Hazra. Jayantilal.,
"7. Threat of injury to a public servant, or to any person in whom such public servant is",
believed to be interested in order to induce such public servant to do or refrain from,
doing an official act (section 189).,
8. Threat of injury to induce any person to refrain from applying for protection to a,
public servant (section 190).,
Chapter XI treats offences relating to false evidence and public justice.,
"A person is said to give 'false evidence', if he",
False evidence. Chapter XI.,
"(1) being legally bound by an oath, or by an express provision of law to state the truth;",
or,
(2) being bound by law to make a declaration upon any subject;,
(3) makes any statement which is false; and,
"(4) which he either knows or believes to be false, or does not believe to be true (section",
191).,
"If the Court has no authority to administer an oath, or if it has no jurisdiction at all, the",
proceedings will be without jurisdiction. Oath or solemn affirmation is not a condition,
precedent to this offence. The false statement need not be material to the case. It is,
"not limited to evidence before a Court of Justice, but covers any statement made,",
"under oath or otherwise, in pursuance of a legal duty to make it. A false allegation in a",
written statement amounts to this offence. Illegality of a trial does not purge perjury,
committed in that trial. An accused is not liable if he gives false answers to questions,
put by the Court.,
A person is said to 'fabricate false evidence' if he,
Fabricating false evidence.,
(1) causes any circumstance to exist; or,
(2) makes any false entry in any book or record; or,
(3) makes any document containing a false statement;,
"(4) intending that such circumstance, false entry or false statement may appear in",
"evidence in (a) a judicial proceeding, or (b) a proceeding taken by law before a public",
servant or an arbitrator; and,
"(5) may cause any person, who in such proceeding is to form an opinion upon the",
"evidence, to entertain an erroneous opinion;",
(6) touching any point material to the result of such proceeding (section 192). [If,
evidence is given or fabricated for the purpose of being used in any stage of a judicial,
"proceeding, seven years and fine; in any other case, three years and fine (section 193).]",
This section refers to judicial proceedings. Section 181 refers to any proceeding before,
"a public servant. The definition of 'judicial proceeding' in Cr PC, 1973, is not applicable",
to sections 192 and 193.,
Intention is the gist of the offence of fabricating false evidence.,
"The false evidence must be material to the case, though it may not be so under section",
191. If no erroneous opinion could be formed touching any point material to the result,
of a proceeding there is no fabrication.,
As soon as the false evidence is fabricated the offence is complete. Actual use of such,
evidence is not necessary. Such use is punishable under section 196. The fabricated,
"evidence must, however, be admissible evidence. The offence cannot be committed",
before a public servant not authorized to hold an investigation.,
Where a person makes two contradictory statements he can be charged in the,
"alternative and convicted of intentionally giving false evidence, although it cannot be",
"proved which of those contradictory statements is false. KTMS Mohd v UOI, (Supreme",
Court).,
Persons accused of giving or fabricating false evidence should be tried separately and,
not jointly.,
An accused person who fabricates evidence to escape punishment is not liable under,
"this section, unless he contemplates injury to someone else.",
The aggravated forms of these two offences are—,
1. Giving or fabricating false evidence with intent to procure conviction of a capital,
offence (section 194).,
2. Giving or fabricating false evidence with intent to procure conviction of an offence,
punishable with imprisonment for life or imprisonment (section 195).,
3. Threatening or inducing any person to give false evidence (section 195A).,
The following offences are punishable in the same manner as the giving of false,
evidence:—,
1. Issuing or signing any certificate required by law to be given or signed or by law,
made evidence of any fact knowing or believing that such certificate is false in any,
material point (section 197).,
2. Using as true a certificate known to be false in a material point (section 198).,
3. False statement made in any declaration which touches any material point and,
which is by law receivable as evidence (section 199).,
4. Using as true any such declaration known to be false in any material point (section,
200).,
5. Causing disappearance of evidence of the offence or giving false information to,
screen offender. The punishment is linked with the type of offence of which the,
evidence is destroyed. (section 201).,
6. Intentional omission to give information by the person who is bound to inform,
(section 202).,
7. Giving false information in respect of an offence which has been committed (section,
203).,
Destruction or secreting or obliteration of a document to prevent its production in,
evidence in a court is punishable (section 204).,
There are two offences in this chapter dealing with false personation.,
Personation,
"1. Falsely personating another, and in such assumed character making any admission",
"or statement, or confessing judgment or causing any process to be issued or becoming",
"bail or security, or doing any other act in any suit or prosecution (section 205).",
Any fraudulent gain or benefit to the offender is not necessary.,
The Calcutta High Court has held that a person commits this offence even if he,
"personates a purely imaginary person. The Madras High Court, following English",
"precedents, has held to the contrary.",
2. Personating a juror or assessor. (section 229).,
The following provisions deal with the abuse of process of court:—,
Abuse of process of Court.,
1. Fraudulent removal or concealment of property to prevent its seizure as forfeiture or,
in execution of a decree (section 206).,
2. Fraudulent claim to property to prevent its seizure as forfeiture or in execution,
(section 207).,
3. Fraudulently suffering a decree for a sum not due (section 208).,
4. Fraudulently or dishonestly making a false claim in court (section 209).,
5. Fraudulently obtaining a decree for a sum not due or causing a decree or order to be,
executed against any person after it has been satisfied (section 210).,
The fact that the satisfaction of a decree is of such a nature that the court executing,
"the decree cannot recognize it, does not prevent the decree-holder from being",
convicted of this offence.,
6. False charge of an offence.,
This has four ingredients:—,
"(1) Instituting or causing to be instituted any criminal proceedings, or",
"(2) Falsely charging any person with having committed an offence,",
"(3) Knowledge that there is no just or lawful ground for it,",
"(4) Doing as above with intent to cause injury to any person (section 211). [Two years,",
"or fine, or both. If criminal proceedings, be instituted on a false charge of an offence",
"punishable with death, imprisonment for life, or imprisonment for seven years or",
"upwards, then the punishment is seven years and fine.]",
Criminal law may be put in motion—,
"(1) by giving information to the police, or",
(2) by lodging a complaint before a Magistrate.,
A false charge to the police in respect of a cognizable offence amounts to institution of,
criminal proceedings. But as the police have no power to take any proceedings in non-,
"cognizable cases without orders from a Magistrate, a false charge of such offence",
made to the police is not an institution of criminal proceedings but merely a false,
charge. No such distinction exists when a false charge of any offence is made before a,
Magistrate.,
Leading cases:—R v Karim Buksh. R v Jijibhai. Santosh Singh.,
For a false charge of offence of a serious nature severe punishment is provided.,
"According to the Calcutta and the Madras High Courts, in such cases it is not",
"necessary that criminal proceedings should be instituted, the charge should merely",
relate to a serious offence; whereas the Allahabad High Court has held that criminal,
proceedings should have been actually instituted.,
Leading cases:—R v Karim Buksh(Cal). R v Nanjunda Row(Mad). R v Bisheshar(All).,
The bringing of a vexatious charge is not an offence under this section. The,
compounding of the offence alleged to have been committed is no bar to a prosecution,
under this section. The person aggrieved may sue in a civil suit for damages for,
malicious prosecution instead of instituting criminal proceedings.,
There is a difference between section 182 and section 211.,
"Bombay High Court.—Under section 182 proof of (1) malice, and (2) want of reasonable",
"and probable cause, except so far as they are implied in the act of giving false",
"information, is not necessary; under section 211 such proof is absolutely required",
(Raghavendra v Kashinathbhat).,
Calcutta High Court.—Prosecution for a false charge may be under either of these,
"sections. But if the false charge is of a serious nature, section 211 should be applied",
(Sarada Prosad Chatterjee).,
"Allahabad High Court.—Where a specific false charge is made, the proper section to",
apply is section 211. An offence under section 182 is complete when false information,
is given to a public servant although the latter takes no steps towards the institution of,
criminal proceedings (Jugal Kishore; Raghu Tiwari).,
Patna High Court.—It follows the view of the Calcutta High Court.,
Punjab.—The former Chief Court of the Punjab followed the view of the Bombay High,
Court.,
Screening an offender.,
1. Causing disappearance of evidence of an offence or giving false information to,
screen the offender (section 201).,
An offence should have been actually committed to render a person liable. An offender,
himself causing the disappearance of evidence can be held liable under this section.,
2. Taking gift to screen an offender from punishment (section 213).,
3. Offering gift or restoration of property in consideration of screening an offender,
(section 214).,
Taking any gratification on account of helping any person to recover any moveable,
property of which he has been deprived by any offence under this Code is punished,
unless the person taking gift uses all means in his power to cause the offender to be,
apprehended (section 215).,
Harbouring an offender.,
1. Harbouring or concealing a person knowing him to be an offender with the intention,
of screening him from legal punishment (section 212).,
"2. Harbouring or concealing an offender who has escaped from custody, or whose",
apprehension has been ordered (section 216).,
"3. Knowingly harbouring any persons who are about to commit, or have committed,",
robbery or dacoity (section 216A).,
The following provisions deal with offences against public justice committed by public,
servants:—,
Offences by public servants.,
1. Public servant knowingly disobeying a direction of law with an intent to save any,
person from punishment or any property from forfeiture (section 217).,
"2. Public servant, charged as such with the preparation of a record or other writing,",
"framing it incorrectly with intent to cause loss or injury to the public or any person, or to",
save any person from punishment or property from forfeiture (section 218).,
"3. Public servant in a judicial proceeding corruptly or maliciously making any report,",
"order, verdict, or decision, knowing that it is contrary to law (section 219).",
"4. Public servant corruptly or maliciously committing any person for trial, or keeping",
any person in confinement knowing that he is acting contrary to law (section 220).,
The Supreme Court analysed the requirements of this section in Suryamoorthy v,
Govindaswami.,
"5. Public servant intentionally omitting to apprehend, or suffering to escape, any person",
when legally bound to apprehend or keep him in confinement (section 221).,
"6. Same as above, when such person is under sentence or lawfully committed to",
custody (section 222).,
"7. Public servant legally bound to keep in confinement a person charged with, or",
"convicted of, any offence, negligently suffering him to escape (section 223).",
8. Public servant omitting to apprehend or suffering to escape from confinement any,
person in cases not otherwise provided for (section 225A).,
Resisting the law is punishable in the following cases:—,
1. A person resisting or obstructing the lawful apprehension of himself for any offence,
with which he is charged or of which he has been convicted; or escaping or attempting,
to escape from legal custody (section 224).,
"2. Resisting or obstructing lawful apprehension of another person for an offence, or",
rescuing or attempting to rescue him from legal custody (section 225).,
"3. Resistance or obstruction to lawful apprehension, or escaping or rescuing from legal",
custody in cases not otherwise provided for (section 225B). Violation of condition of,
remission of punishment (section 227).,
Contempt of Court.,
A person is guilty of contempt of Court if he intentionally offers any insult or causes,
"any interruption to any public servant, while he is sitting in any stage of a judicial",
"proceeding (section 228). [Six months' simple imprisonment, or Rs. 1,000, or both.]",
A person who prints or publishes the name or discloses the identity of the victim of a,
"rape case and other sexual offences under sections 376A, 376B, 376C or 376D without",
due authorisation or permission of the court shall be punishable with imprisonment of,
either description for a term which may extend to two years and shall also be liable to,
fine (section 228A).,
"This section, however, does not apply to the publication of the judgment of any High",
Court or the Supreme Court (Explanation to section 228A).,
Coin and Stamps. Chapter XII.,
"Coin is metal used for the time being as money, and stamped and issued by the",
authority of some State or Sovereign power in order to be so used. Old coins not used,
as money are not coins under this definition.,
Indian coin is—,
(1) metal stamped and issued—,
"(a) by the authority of the Government of India,",
(b) in order to be used as money;,
(2) Metal which has been so stamped or issued shall continue to be Indian coin,
notwithstanding that it may have ceased to be used as money (section 230).,
Following are the various offences relating to coin:—,
"1. Counterfeiting coin or Indian coin (sections 231, 232).",
"2. Making, mending, buying, or selling, or disposing of any die or instrument for",
"counterfeiting coin or Indian coin (sections 233, 234).",
3. Being in possession of any instrument or material for the purpose of using the same,
for counterfeiting of coin or Indian coin (section 235).,
"4. Abetting in India, counterfeiting of coin out of India (section 236).",
Abetment must be completed in India.,
"5. Importing or exporting of a counterfeit coin or Indian coin (sections 237, 238).",
6. Delivery to another of a coin or Indian coin possessed with the knowledge that it is,
"counterfeit (sections 239, 240).",
"7. Delivery to another of a counterfeit coin as genuine, which, when first possessed, the",
deliverer did not know to be counterfeit (section 241).,
8. Possession of a counterfeit coin or Indian coin by a person who knew it to be,
"counterfeit when he became possessed thereof (sections 242, 243).",
Possession must be with intent to defraud.,
9. Any person employed in a mint causing a coin to be of different weight or,
composition from that fixed by law (section 244).,
10. Unlawfully taking from a mint any coining instrument or tool (section 245).,
11. Fraudulently or dishonestly diminishing the weight or altering the composition of,
"any coin or Indian coin (sections 246, 247).",
12. Altering appearance of any coin or Indian coin with intent that it shall pass as a coin,
"of different description (sections 248, 249).",
13. Delivery to another of a coin or Indian coin possessed with the knowledge that it is,
"altered (sections 250, 251).",
There must be both possession with knowledge and fraudulent delivery.,
14. Possession of an altered coin or Indian coin by a person who knew it to be altered,
"when he became possessed thereof (sections 252, 253).",
"15. Delivery to another of an altered coin as genuine, which, when first possessed, the",
deliverer did not know to be altered (section 254).,
The following offences relate to Government stamps:—,
1. Counterfeiting or performing any part of the process of counterfeiting a government,
stamp (section 255).,
2. Possession of an instrument or material for the purpose of counterfeiting a,
government stamp (section 256).,
"3. Making, buying, or selling any instrument for the purpose of counterfeiting a",
government stamp (section 257).,
4. Sale of a counterfeit government stamp (section 258).,
5. Possession of a counterfeit government stamp (section 259).,
6. Using as genuine a government stamp known to be counterfeit (section 260).,
7. Fraudulently affecting any writing from a substance bearing a Government stamp or,
"removing from a document the stamp used for it, with intent to cause loss to the",
Government (section 261).,
8. Using a government stamp known to have been before used (section 262).,
9. Fraudulently erasing from a government stamp any mark denoting that the same has,
"been used, or selling or disposing of a stamp from which such a mark has been erased",
(section 263).,
"10. Possession of a fictitious stamp or of any die, plate or instrument for making any",
fictitious stamp (section 263A).,
Weights and measures. Chapter XIII.,
The following offences relate to weights and measures:—,
1. Fraudulent use of false instruments for weighing (section. 264).,
2. Fraudulent use of a false weight or measure or using any weight or measure of,
"length or capacity, as a different weight or measure from what it is (section 265).",
"3. Possession of any instrument for weighing, or of any weight or measure of length or",
"capacity, knowing it to be false, intending that the same may be fraudulently used",
(section 266).,
"4. Making, selling, or disposing of any false instrument for weighing or any false weight",
or measure of any length or capacity in order that the same may be used or knowing,
that it is likely to be used as true (section 267).,
Nuisance. Chapter XIV.,
A person is guilty of public nuisance who does,
"(1) any act, or is guilty of an illegal omission; and",
(2) such act or omission causes,
"(a) any common injury, danger, or annoyance (i) to the public, or (ii) to the people in",
general who dwell or occupy property in the vicinity; or,
"(b) any injury, obstruction, danger, or annoyance to persons who may have occasion to",
use any public right (section 268).,
"Nuisance is either (1) public, or (2) private. The former is an offence against the public",
"as it affects the public at large, or some considerable portion of public. It depends in a",
great measure upon the number of houses and the concourse of people in the vicinity;,
and the annoyance or neglect must be of a real and substantial nature. Public nuisance,
cannot be excused on the ground that the act complained of is inconvenient to a large,
"number of the public. Acts which seriously interfere with the health, safety, comfort, or",
"convenience of the public generally, or which tend to degrade public morals, have",
"always been considered public nuisance. A brew-house, glass-house, or swine-yard,",
may be a public nuisance if it is shown that the trade is such as to render enjoyment of,
life and property uncomfortable. Public nuisance can only be the subject of one,
"indictment, otherwise a party might be ruined by a million prosecutions. No prescriptive",
right can be acquired to maintain a public nuisance.,
"Private nuisance is anything done to the hurt or annoyance of the lands, tenements, or",
"hereditaments of another, and not amounting to trespass. It is an act affecting some",
particular individual or individuals as distinguished from the public at large. It is in the,
quantum of annoyance that public nuisance differs from private. Private nuisance,
"cannot be a subject of indictment but a ground of a civil action for damages, or",
"injunction, or both.",
The following offences affect public health:—,
1. Negligent or malignant act likely to spread infection of any disease dangerous to life,
"(sections 269, 270). The Supreme Court considered under this section the position of a",
person suffering from HIV (AIDS) X v Z.,
2. Wilful disobedience to a quarantine rule (section 271).,
3. Adulteration of food or drink intended for sale so as to make it noxious (section,
272).,
"4. Selling, offering or exposing for sale, as food or drink, any article which has been",
rendered or has become noxious or unfit for food or drink (section 273).,
"5. Adulteration of drug so as to lessen its efficacy, change its operation or render it",
noxious (section 274).,
6. Knowingly selling or causing to be used for medicinal purposes any adulterated drug,
(section 275).,
"7. Selling, or offering or exposing for sale, or issuing from a dispensary for medicinal",
"purposes, any drug or medical preparation as a different drug or medical preparation",
(section 276). Possession has been taken to be evidence of intention (sabapathee).,
"In the States of West Bengal and Uttar Pradesh offences under sections 272, 273, 274,",
"275 and 276 IPC, 1860, have by virtue of local amendments been made cognizable,",
non-bailable and punishable with imprisonment for life (see COMMENT under section,
272).,
8. Voluntarily corrupting or fouling the water of a public spring or reservoir so as to,
render it less fit for the purpose for which it is ordinarily used (section 277).,
9. Voluntarily vitiating the atmosphere so as to make it noxious to the public health,
(section 278). Carrying such material without proper protection and dumping it at,
"some place, though temporarily, constituted offences. Durham County Council v Peter",
Connors Industrial Services and R v Metropolitan S Magistrate.,
The following offences relate to public safety:—,
"1. Rash or negligent driving or riding on a public way so as to endanger human life, or to",
cause hurt or injury to any other person (section 279).,
Negligence is the breach of a duty caused by the omission to do something which a,
"reasonable man, guided by those considerations which ordinarily regulate the conduct",
"of human affairs, would do, or the doing of something which a prudent and reasonable",
man would not do.,
There is a distinction between a rash act and a negligent act. Culpable rashness is,
acting with the consciousness that the mischievous and illegal consequences may,
follow but with the hope that they will not. Culpable negligence is acting without the,
consciousness that the illegal and mischievous effect will follow. As between rashness,
"and negligence, rashness is a graver offence.",
Leading cases:—Bhalchandra. Padmacharan Naik.,
2. Rash or negligent navigation of a vessel (section 280).,
"3. Exhibiting any false light, mark, or buoy, intending or knowing it to be likely to mislead",
any navigator (section 281).,
4. Conveying a person by water for hire in a vessel overloaded or unsafe (section 282).,
Hijacking and threat to blow up an aircraft have been considered under this section (R v,
Mason).,
"5. Causing danger, obstruction, or injury to any person in a public way or public line of",
navigation (section 283).,
6. Rash or negligent conduct with respect to any poisonous substance so as to,
"endanger human life, or to be likely to cause hurt or injury to any person (section 284).",
7. Rash or negligent conduct with respect to any fire or combustible matter (section.,
285).,
8. Rash or negligent conduct with respect to any explosive substance (section. 286).,
9. Rash or negligent conduct with respect to any machinery in the possession or under,
the charge of the offender (section. 287).,
10. Negligence with respect to pulling down or repairing buildings (section. 288).,
11. Negligence with respect to any animal (section. 289).,
Acts of public nuisance other than those mentioned above are punishable under the,
general section (section. 290). A person cannot continue a public nuisance after,
injunction to discontinue (section. 291).,
Offences against public morals and decency are:—,
"1. (a) Selling, letting to hire, distributing, or publicly exhibiting or circulating any",
"obscene book, pamphlet, paper, drawing, painting, representation or figure or any",
obscene object; or,
"(b) importing, exporting, or conveying any obscene object for any of the above",
purposes; or,
(c) taking part in or receiving profits from any business conducted for the,
abovementioned purposes; or,
"(d) advertising that any person is engaged in any of the abovementioned acts, or",
that any obscene object can be got from that person; or,
(e) attempting to do any act which is an offence under this section (section. 292).,
Leading cases:—Ranjit Udeshi. Samaresh Basu v Amal Mitra. Rajkapoor v Laxman.,
Mahajan Singh v Commr. of Police.,
"2. Selling, letting to hire, distributing, exhibiting, or circulating to any person under the",
"age of 20 years any obscene object referred to above, or attempting to do so (section.",
293).,
"A book, pamphlet, paper, writing, drawing, painting, representation, figure or any other",
object is deemed obscene if it is lascivious or appeals to the prurient interest or if its,
effect taken as a whole is such as tends to deprave and corrupt persons who are likely,
"to see, read or hear the matter.",
3. Causing annoyance to others by—,
(a) doing any obscene act in any public place; or,
"(b) singing, reciting, or uttering any obscene song, ballad or words, in or near any",
public place (section 294).,
"(4) Keeping any office, or place, for the purpose of drawing any lottery not being a state",
lottery or a lottery authorised by the State Government (section 294A).,
"Whoever publishes any proposal to pay any sum, or to deliver any goods, on drawing of",
"any ticket, lot or number, in a lottery is also punished (ibid). [Fine up to Rs. 100.]",
"An agreement for contributions to be paid by lot, or a transaction requiring skill for",
winning prizes is not a lottery. Transactions in which prizes are decided by chance,
amount to lottery.,
Offences relating to religion. Chapter XV.,
Chapter XV treats of offences relating to religion. They are as follows:—,
"1. Injuring or defiling a place of worship, or any object held sacred by any class of",
"persons, with intent to insult the religion of any class of persons (section 295).",
"2. Deliberate and malicious acts intended to outrage religious feelings of any class, by",
insulting its religion or religious belief irrespective of the fact whether the religious,
belief in question is rational or irrational. (section 295A).,
Leading cases:—Shalibhadra Shah. Nandkishore Singh. Chandanmal Chopra. T,
Parameswaran v District Collector.,
3. Voluntarily disturbing a religious assembly lawfully engaged in the performance of,
religious worship or religious ceremonies (section 296).,
"4. Trespassing in a place of worship or burial place, offering any indignity to corpse, or",
"disturbing persons performing funeral ceremonies, with intent to wound the feelings, or",
insult the religion of any person or with the knowledge that the feelings of any person,
are likely to be wounded (section 297).,
"5. Uttering any word or making any sound in the hearing of that person, or making any",
"gesture in the sight of that person, or placing any object in the sight of that person",
(section 298).,
Offences affecting human body. Chapter XVI.,
Offences against the person are—,
(1) Unlawful homicide.,
(a) Culpable homicide.,
(b) Murder.,
(c) Homicide by rash or negligent act.,
(d) Suicide.,
(e) Being a Thug.,
(2) Causing miscarriage.,
(3) Exposure of infants and concealment of births of children.,
(4) Hurt and grievous hurt.,
(5) Wrongful restraint.,
(6) Wrongful confinement.,
(7) Criminal force.,
(8) Assault. prostitution.,
(9) Kidnapping.,
(10) Abduction.,
(11) Slavery.,
(12) Selling or buying a minor for prostitution.,
(13) Forced labour.,
(14) Rape and other sexual offences.,
(15) Unnatural offence.,
"Culpable homicide, the genus, and murder, the species, are defined in very close",
resembling terms.,
Culpable homicide.,
A person commits murder (section 300) culpable homicide if he causes death by doing,
an act— (section 299) if he causes death by doing an act—,
(1) with the intention of causing death; or (1) with the intention of causing death; or,
(2) with the intention of causing such bodily (2) with the intention of causing such bodily,
injury as is likely to cause death; injury as the offender knows to be likely to,
cause death of the person to whom the harm is,
caused; or,
(3) with the intention of causing bodily injury to,
"any person, and the bodily injury intended to be",
inflicted is sufficient in the ordinary course of,
nature to cause death; or,
(3) with the knowledge that he is likely by such (4) with the knowledge that it is so imminently,
act to cause death. dangerous that it must in all probability cause,
"death, or such bodily injury as is likely to cause",
death.,
"[Imprisonment for life; or 10 years and fine, if Capital punishment, or imprisonment for life,",
the offence comes under clause 2. If it comes and fine—(section. 302).,
"under clause 3, then 10 years, or fine, or both—",
(section 304).],
An offence cannot amount to murder unless it falls within the definition of culpable,
homicide; but it may amount to culpable homicide without amounting to murder. All,
"acts of killing done with the intention to kill, or to inflict bodily injury sufficient to cause",
"death, or with the knowledge that death must be the most probable result are prima",
facie murder; while those committed with the knowledge that death will be a likely,
"result are culpable homicide not amounting to murder. Where the act is not done ""with",
"the intention of causing death"" (clause 4, section 300) the difference between culpable",
homicide and murder is merely a question of different degrees of probability that death,
would ensue. It is culpable homicide where death must have been known to be a,
probable result. It is murder where it must have been known to be the most probable,
"result. If an injury is deliberately inflicted, in the sense that it is not accidental or",
"unintentional, and the injury, objectively speaking, is sufficient to cause death in the",
"ordinary course of nature and death results, the offence is murder (clause 3, section",
300).,
Leading cases:—State of AP v R Punnayya. R v Govinda. R v Idu Beg. R v Gora Chand,
Gopee. Virsa Singh.,
"English case.—""Likely"".—The accused was convicted of an offence of behaving in a",
manner likely to endanger the safety of an air craft by the persistent use of his mobile,
"telephone in mid-flight. His appeal against conviction failed because the word ""likely""",
"was correctly construed in its statutory context as meaning ""a real risk not to be",
"ignored."" (R v White house).",
"Death caused by an act, for example, setting a house on fire, done with foresight that",
"someone may die, but without any intention of that kind, has been held by an English",
Court to be not murder but only culpable homicide. Foresight is not the same thing as,
an intention. Foresight may only be an evidence of intention.,
Leading case:—R v Nadrick.,
"Other circumstances may also prove intention. For example, a married woman burning",
"in the kitchen and her husband and others not at all coming up to her, held by the",
Supreme Court to be evidence of intention. Subedar Tewari v State of UP.,
"Where death is caused by poison, the earlier legal propositions, one of which required",
"that the accused must be shown to have possessed poison of the kind in question,",
have now been revised.,
Death in police custody is not capable by itself of creating an inference of murder. State,
v Balkrishna.,
Leading case:—Bhupinder Singh v State of Punjab.,
Death caused by the effect of words on the imagination or the passions of a person,
amounts to culpable homicide. If a person engaged in the commission of an offence,
"causes death by pure accident, he shall suffer only the punishment provided for the",
"offence, without any addition on account of the accidental death. Culpable homicide",
"presupposes an intention, or knowledge of likelihood, of causing death. In the absence",
"of these elements, even if death be caused, the offence will be that of hurt or grievous",
"hurt, e.g., death caused by kicking a person suffering from a diseased spleen.",
A person who causes bodily injury to another who is labouring under a disease or,
"bodily infirmity, and thereby accelerates the death of that other is guilty of homicide",
"(Explanation 1). Similarly, where death is caused by bodily injury, the person who",
"causes such injury is guilty of this offence, although by resorting to proper remedies",
and skilful treatment death might have been prevented (Explanation 2). The causing of,
the death of a child in the mother's womb is not homicide. But it is homicide to cause,
"the death of a living child, if any part of that child has been brought forth, though the",
child may not have breathed or been completely born (Explanation 3).,
If death is caused by the voluntary act of the deceased resulting from fear of violence,
"on the part of the offender, the offence will be murder. For instance, if four or five",
"persons were to stand round a man, and so threaten him and frighten him as to make",
"him believe that his life was in danger, and he were to back away from them and tumble",
"over a precipice to avoid them, the persons threatening him will be guilty of murder.",
Where the attack was aimed at one person but it fell upon another resulting in the,
"latter's death, it was held that under the doctrine of transfer of malice, the attacker",
"would be guilty of murder. Nagaraj v State, (2006) Cr LJ 3724 (Mad—FB); Rahimbux v",
"State of MP, (2008) 12 SCC 270 [LNIND 2008 SC 2798] .",
The punishment for murder is either death or imprisonment for life and also fine. The,
"Supreme Court has, in a long course of decisions, made it an established principle that",
"the normal punishment for murder is life imprisonment and that ""death"" should be",
"awarded in ""rarest of rare cases"". Examples of such rarest of rare cases are:",
Leading cases:—Kehar Singh v State (Delhi Administration). Lichhmadevi v State of,
Rajasthan.,
An abnormal delay in executing a death sentence has been recognised as a ground for,
converting death sentence into life imprisonment.,
Leading cases:—Bachan Singh v State of Punjab Triveniben v State of Gujarat Madhu,
Mehta v UOI.,
The Supreme Court has noted serious changes which have taken place in the state of,
the society since the categories for award of death sentence were laid down. Because,
"of such changes, there should be some flexibility in the application of the categories.",
"Swami Shraddananda v State of Karnataka, (2008) 13 SCC 767 [LNIND 2008 SC 1488] .",
The Supreme Court has also taken opportunities to explain the impact of the special,
"State-wise enactments for punishment of children vis-a-visIPC, 1860: Bhoop Ram v",
State of UP.,
There is no difference in the liability of the offender if the injury intended for one falls,
on another by accident (section 301).,
Exceptions.,
Culpable homicide is not murder in the following cases:—,
Provocation.,
"1. Grave and sudden provocation depriving the offender of the power of self-control,",
provided that the provocation is not—,
(a) sought or voluntarily provoked by the offender as an excuse;,
(b) given by anything done in obedience to the law or by a public servant in the lawful,
exercise of his powers;,
(c) given by anything done in the lawful exercise of the right of private defence.,
Provocation resulting from abusive language has been considered to be grave enough.,
Female infidelity is a common cause of provocation.,
An English decision allowed even a self-induced provocation to be taken into account,
for recording a finding of manslaughter: R v Johnson.,
"The longer the gap between the provoking incidents, less likely the defence of",
provocation is to succeed. The loss of self-control need not be immediate. The mental,
state of accused at the time of the incident may be taken into account for determining,
whether the response was the result of the loss of self-control: R v Ahluwalia;,
Dhandayuthan v State.,
Private defence.,
"2. If the offender, in the exercise in good faith of the right of private defence of person",
"or property, exceeds it, and causes death without premeditation and without intending",
more harm than is necessary.,
Public servant.,
3. If the offender being a public servant or aiding a public servant exceeds his legal,
"powers and causes death by an act which he, in good faith, believes to be lawful and",
"necessary for the due discharge of his duty, and without ill-will towards the deceased.",
Sudden fight.,
"4. If it is committed, without premeditation, in a sudden fight, in the heat of passion,",
"upon a sudden quarrel, and without the offender having taken undue advantage, or",
acted in a cruel or unusual manner.,
The fight should not have been pre-arranged.,
Consent.,
"5. When the deceased, being above the age of 18 years, suffers death or takes the",
risk of harm with his own consent.,
"Where any of the five exceptions applies, the offence will be punishable under the first",
part of section 304.,
The special category of murder enshrined in section 303 under the heading,
"""punishment for murder by life-convict"" has been declared by the Supreme Court to be",
unconstitutional.,
Leading case:—Mithu,
The result is that all murders are now punishable under section 302.,
Culpable homicide which does not amount to murder is punishable under section 304,
"for a term extending to 10 years, if the act by which death is caused is done with the",
intention of causing death or by causing such bodily injury as is likely to cause death.,
"The same section in its second paragraph, popularly known as Part II, provides that the",
accused causing death may be punished with imprisonment extending to 10 years or,
"fine or both, if the act is done without intention to cause death or such bodily injury as",
"is likely to cause death, but with only knowledge that it is likely to cause death (section",
304).,
"The nature of the intention has to be gathered from the kind of weapon used, the part",
"of the body hit, the amount of force employed, and attending circumstances. Manubhai",
"Atabhai v State of Gujarat, (2007) 10 SCC 358 [LNIND 2007 SC 822] .",
"For distinction between section 304 and section 304-A, see Supreme Court decision",
noted of p 615.,
Death by negligence.,
Causing the death of any person by doing any rash or negligent act not amounting to,
culpable homicide is punishable (section 304A). [Two years and fine.],
Criminal rashness is hazarding a dangerous or wanton act with the knowledge that it is,
"so, and that it may cause injury, or knowledge that injury will probably be caused.",
Criminal negligence is acting without the consciousness that the illegal and,
mischievous effect will follow but in circumstances which show that the actor has not,
exercised the caution incumbent upon him and that if he had he would have had the,
consciousness.,
If death results from injury intentionally inflicted this section does not apply. Death,
should have been the direct result of the rash and negligent act and that act must be,
the proximate and efficient cause without the intervention of another's negligence. It,
must be the causacausans; it is not enough if it is causa sine qua non.,
Dowry death.,
"An unnatural death of a woman within seven years of marriage, whether by burns or",
"injury or otherwise, taking place in the background of cruelty or harassment for dowry,",
"is called a ""dowry death"". Whoever is guilty of causing such death is punishable for a",
term not less than seven years and which may extend to imprisonment for life. The,
ingredients of section 304-B offence have been stated by the Supreme Court in Shanti v,
State of Haryana (section 304-B).,
Leading cases:—R v Nidamarti Nagabhushanam. R v Ketabdi Mundal. Bhalchandra. Syed,
Akbar.,
"The expression ""soon before"" as occurring in the section has been construed by the",
"Orissa High Court in Keshab Chand Pandit v State, (1995) Cr LJ 175 (Ori), and also by",
"the Supreme Court in Yashoda v State of MP, (2004) 3 SCC 98 [LNIND 2004 SC 155] .",
"Deen Dayal v State of Up, (2009) 11 SCC 157 [LNIND 2009 SC 19] .",
"The Supreme Court has observed that death ""otherwise than in normal circumstances""",
would mean that the death was not in the usual course but apparently under suspicious,
circumstances if it was not caused by burn or bodily injury. Death of a woman by,
suicide occurring within seven years of marriage cannot be described as occurring in,
normal circumstances. (Rajayyan). The court has to analyse the facts and,
circumstances leading to the victim's death to see whether there is proximate,
connection between the cruelty or harassment for dowry demand and death. State of,
"Rajasthan v Jaggu Ram, (2008) 12 SCC 51 [LNIND 2007 SC 1514] . Kailash v State of MP,",
"(2006) 12 SCC 667 [LNIND 2006 SC 803] ; Dhian Singh v State of Punjab, (2004) 7 SCC",
759 .,
Suicide.—There are two provisions regarding abetment of suicide:—,
(1) Abetment of suicide of a child or an idiot or an insane or a delirious or an,
intoxicated person (section 305).,
(2) Abetment of suicide by any person (section 306). There can be abetment of suicide,
through dowry demand.,
Attempts.,
Attempts to destroy life are of three kinds:—,
"1. Attempt to murder, i.e., doing an act with such intention or knowledge, and under",
such circumstances that if the doer by that act caused death he would be guilty of,
"murder (section 307). [Ten years and fine. If hurt is caused, then imprisonment for life",
"or 10 years. If the offender is under sentence of imprisonment for life, then death.]",
The Bombay High Court held that there may be an attempt under section 511 which,
does not come under this section. It is not intended to exhaust all attempts to commit,
murder which can be punished under the Code (R v Cassidy). But the Allahabad High,
Court has laid down that section 511 does not apply to attempts to commit murder,
which are fully and exclusively provided for by this section (R v Niddha).,
The Supreme Court held that a person commits an offence under this section when he,
has an intention to commit murder and in pursuance of that intention he does an act,
towards its commission irrespective of the fact whether that act is the penultimate act,
"or not (Om Prakash); Samersimbh Umedsinh Rajput v State of Gujarat, (2007) 13 SCC 83",
[LNIND 2007 SC 1450] .,
Leading case:—State of Maharashtra v Balaram Bama Patil.,
In the matter of suicide by a married woman in the circumstances specified in the,
"amendments, the burden of proving that her in-laws had not abetted the suicide has",
been put upon them.,
Leading case:—Gurbachan Singh v Satpal Singh. Brij Lal v Prem Chand.,
There must be proof of the fact that the death in question was due to suicide.,
Leading case:—Wazir Chand v State of Haryana.,
"2. Attempt to commit culpable homicide, i.e., doing an act with such intention or",
"knowledge, and under such circumstances, that, if the doer by that act caused death,",
he would be guilty of culpable homicide not amounting to murder (section 308). [If hurt,
"is caused, then seven years, or fine, or both; in other cases three years, or fine, or both.]",
3. Attempt to commit suicide.— An act towards the commission of this offence should,
"have been done (section 309). [One year, or fine, or both.] The act must have been done",
"in the course of the attempt, otherwise no offence is committed.",
Criminologists feel that an attempt to commit suicide being the manifestation of a,
"diseased condition of mind, this section should be deleted from the Code; as such a",
person requires sympathy and treatment rather than condemnation and punishment.,
"The Supreme Court ruled that the section was unconstitutional and, therefore, void P",
Rathinam v UOI. This decision was subsequently reversed by another Supreme Court,
decision Gian Kaur v State of Punjab. The section is thus back to its honourable position,
in the Code as a measure to dissuade people from horrifying the society by attempting,
"self-demolition. See also section 115 of the Mental Healthcare Act, 2017, which lays",
"down that notwithstanding anything contained in section 309 of IPC, 1860, any person",
"who attempts to commit suicide shall be presumed, unless proved otherwise, to have",
severe stress and shall not be tried and punished under the said Code.,
Thug.,
A 'thug' is a person who has been,
(1) habitually associated with any other or others for the purpose of committing—,
"(a) robbery, or",
"(b) child stealing,",
"(2) by means of, or accompanies with, murder (section 310). [Imprisonment for life and",
fine (section 311).],
"Miscarriage, exposure of children, etc.",
The following offences relate to birth and exposure of children:—,
"1. Voluntarily causing a woman with child or quick with child to miscarry, otherwise",
than in good faith for the purpose of saving the life of the woman (section 312) and,
without her consent (section 313).,
"The Medical Termination of Pregnancy Act, 1971, provides for the termination of",
pregnancy under several other circumstances mentioned in that Act and these sections,
should now be read subject to those provisions.,
2. Causing the death of a woman by an act done with intent to cause miscarriage,
(section 314). Jacob George v State of Kerala.,
3. Doing an act without good faith with intent to prevent a child being born or to cause,
it to die after birth (section 315).,
4. Causing the death of a quick unborn child by an act amounting to culpable homicide,
(section 316).,
5. Exposure and abandonment of a child under 12 years by parent or persons having,
care of it (section 317).,
6. Concealment of birth by secret disposal of dead body (section 318).,
"Whoever causes (1) bodily pain, (2) disease, or (3) infirmity, to any person is said to",
cause hurt (section 319).,
Hurt.,
"A person voluntarily causes hurt, if he does any act",
"(a) with the intention of thereby causing hurt to any person, or",
"(b) with knowledge that he is likely thereby to cause hurt (section 321). [One year, or",
"fine up to Rs. 1,000, or both (section 323).]",
Acts which will amount to hurt may amount to assault. But hurt may be caused by,
"many acts which are not assaults, for instance, a person who mixes poison and places",
"it on the table of another, or conceals a scythe in the grass on which another is in the",
"habit of walking, or digs a pit in a road intending that another may fall into it, will be",
guilty of hurt and not assault.,
Grievous hurt.,
The following kinds of hurt are designated as 'grievous':—,
1. Emasculation.,
2. Permanent privation of the sight of either eye.,
3. Permanent privation of the hearing of either ear.,
4. Privation of any member or joint.,
5. Destruction or permanent impairing of the powers of any member or joint.,
6. Permanent disfiguration of the head or face.,
7. Fracture or dislocation of a bone or tooth.,
"8. Any hurt which endangers life, or which causes the sufferer to be, during the space",
"of 20 days, in severe bodily pain, or unable to follow his ordinary pursuits (section 320).",
A seller of arrack who mixed with it a dangerous substance was awarded maximum,
"punishment which was possible under the section. EK Chandrasenan v State of Kerala,",
AIR 1995 SC 1066 [LNIND 1995 SC 88] .,
"Voluntarily causing grievous hurt is voluntarily causing hurt, intending it or knowing it",
likely to be grievous (section 322). [Imprisonment for seven years and fine (section,
325).],
The following are aggravated forms of the above two offences:—,
"1. Voluntarily causing hurt (section 325), or grievous hurt (section 326), by an",
"instrument used for shooting, stabbing, or cutting or which used as a weapon of",
"offence is likely to cause death; or by fire or any heated substance or poison, or any",
"explosive or deleterious substance, or by means of any animal, Voluntarily causing",
grievous hurt by use of acid (section 326A). [Voluntarily throwing or attempting to,
throw acid is also made an offence by introducing section 326B.],
"2. Voluntarily causing hurt (section 327), or grievous hurt (section 329), to extort from",
"the sufferer or anyone interested in him, property or valuable security; or to constrain",
him to do anything illegal; or to facilitate the commission of an offence.,
"3. Causing hurt by administering poison or any stupefying, intoxicating, or",
"unwholesome drug, with intent to commit or facilitate the commission of an offence",
(section 328).,
"4. Voluntarily causing hurt (section 330), or grievous hurt (section 331), to extort from",
"the sufferer or anyone interested in him, a confession or any information which may",
"lead to the detection of an offence; or to constrain the restoration of property, or the",
satisfaction of any claim.,
"5. Voluntarily causing hurt (section 332), or grievous hurt (section 333), to a public",
"servant in the discharge of his duty, or to prevent or deter him from so discharging it.",
Humiliation and abuse of the head master and other teachers of a Government school,
after entering the premises was held to be covered by the section. Madhudas v State of,
Rajasthan.,
Hurt or grievous hurt caused on grave and sudden provocation is not severely punished,
(sections 334 and 335). Rash or negligent acts which endanger human life or the,
personal safety of others are made punishable even though no harm follows (section,
336); and if hurt or grievous hurt is caused by such acts the punishment will be more,
severe (sections 337 and 338).,
Wrongful restraint.,
"Wrongful restraint is (1) voluntarily obstructing a person, (2) so as to prevent him from",
"proceeding in any direction, (3) in which he has a right to proceed. There must be the",
"right to proceed Vijay Kumari v SM Rao, (SC). The word ""voluntarily"" connotes direct",
physical restraint. There should be a restriction on the normal movement of a person.,
"Keki Harmusji Gharda v Mehervan Rustom Irani, (2009) 6 SCC 475 [LNIND 2009 SC",
"1276] (section 339). [One month, or Rs. 500, or both (section 341).]",
The slightest unlawful obstruction to the liberty of a person to go lawfully when and,
where he likes to go is punishable.,
Wrongful confinement.,
"Wrongful confinement is (1) wrongfully restraining a person, (2) in such a manner as to",
prevent him from proceeding beyond certain circumscribing limits (section 340). [One,
"year, or Rs. 1,000 or both (section 342).]",
Wrongful confinement is a form of wrongful restraint. Wrongful restraint keeps a man,
out of a place where he wishes to be. Wrongful confinement keeps a man within limits,
"out of which he wishes to go, and has a right to go.",
"In wrongful confinement there must be a total restraint, not a partial one. If a man",
"merely obstructs the passage of another in a particular direction, leaving him at liberty",
"to stay where he is or to go in any other direction if he pleases, he cannot be said",
"thereby to confine him wrongfully. Detention through the exercise of moral force,",
"without the accompaniment of physical force or actual conflict, is sufficient. But there",
must be voluntary obstruction to the person alleged to be confined so as to prevent him,
from proceeding in any direction. Malice is not necessary. The period of confinement is,
immaterial except with reference to punishment.,
Leading cases:—Bird v Jones. Dhania v Clifford. Austin v Dowling.,
The Court can award compensation for false imprisonment in cases where the victim,
gains his freedom through Court order. Poonam v SI of Police; Paothing v State of,
Nagaland.,
The following are aggravated forms of this offence:—,
1. Wrongful confinement for three or more days (section 343).,
2. Wrongful confinement for ten or more days (section 344).,
3. Wrongful confinement of a person knowing that a writ for his liberation has been,
issued (section 345).,
4. Wrongful confinement is secret so as to indicate an intention that the confinement of,
such person may not be known to any person interested in that person or to any public,
servant (section 346).,
"5. Wrongful confinement for the purpose of extorting any property or valuable security,",
or constraining person to do anything illegal or to give any information which may,
facilitate the commission of an offence (section 347).,
6. Wrongful confinement for the purpose of extorting confession or information which,
"may lead to the detection of an offence, or compelling restoration of any property or",
valuable security or the satisfaction of any claim or demand (section 348).,
Force.,
"A person is said to use force to another,",
"(1) if he causes motion, change of motion, or cessation of motion to that other, or",
"(2) if he causes to any substance such motion, or change of motion or cessation of",
"motion as brings that substance into contact (a) with any part of that other's body, or",
"(b) with anything which that other is wearing or carrying, or (c) with anything so",
situated that such contact affects that other's sense of feeling; provided that he does,
so in any of the three following ways:—,
(i) By his own bodily power.,
(ii) By disposing any substance in such a manner that the motion or change of,
"motion, or cessation of motion takes place without any further act on his part, or",
on the part of any other person.,
"(iii) By inducing any animal to move, to change its motion, or to cease to move",
(section 349).,
Criminal force.,
A person uses 'criminal force' to another if,
"(1) he intentionally uses force to any person,",
"(2) without that person's consent,",
"(3) in order to the committing of any offence, or",
"(4) intending by the use of such force to cause, or knowing it to be likely that by the use",
"of such force he will cause, injury, fear, or annoyance to the person to whom the force is",
"used (section 350). [Three months, or Rs. 500, or both.]",
Assault.,
"A person commits an 'assault', if he",
"(1) makes any gesture or any preparation,",
"(2) intending or knowing it to be likely,",
"(3) that such gesture or preparation will cause any person present to apprehend,",
"(4) that he is about to use criminal force to that person (section 351). [Three months,",
"Rs. 500, or both (section 352).]",
"An assault is something less than the use of criminal force, the force being cut short",
before the blow actually falls. An assault is included in every use of criminal force.,
"Mere words do not amount to an assault, but the words which the party threatening",
uses at the time may give his gestures such a meaning as may make them amount to,
an assault (Explanation).,
"Assault or criminal force on grave provocation is not severely punishable. [One month,",
"or Rs. 200 fine, or both (section 358).] The provocation should not be voluntarily",
"sought, or it should not have been given by anything done in obedience to the law or",
"done by a public servant in the lawful exercise of his powers, or done in the lawful",
exercise of the right of private defence.,
Leading cases:—Cama v Morgan. Stephen v Myres. Awadesh Mahato.,
An 'assault' differs from an 'affray'—,
"(1) An 'assault' may take place anywhere, whereas an 'affray' must be committed in a",
public place.,
"(2) An 'assault' is regarded as an offence against the person of an individual, whereas",
an 'affray' is regarded as an offence against the public peace.,
The following are aggravated forms of the offence of 'assault' and 'use of criminal,
force':—,
1. Assaulting or using criminal force to deter a public servant from the discharge of his,
duty (section 353).,
2. Assaulting or using criminal force to a woman with intent to outrage her modesty,
(section 354). The Criminal Law Amendment Act introduced some new offences,
against women;,
(a) Sexual harassment (section 354A),
(b) Assault or use of criminal force to woman with intent to disrobe (section 354B),
(c) Voyeurism (section 354C),
(d) Stalking (section 354D),
Knowledge that modesty is likely to be outraged has been held to be sufficient to,
constitute the offence without any deliberate intention to do so. Raju Pandurang Mohale,
"v State of Maharashtra, (2004) 4 SCC 371 [LNIND 2004 SC 194] . Police officers",
committing cruelty upon a woman-worker who came into the police station along with,
other workers have been held liable to pay her compensation. The Government was,
ordered to pay out of their salary.,
"Leading cases:—People's Union of Democratic Rights v Police Commissioner, Delhi",
Police; Rupan Deol Bajaj v Kanwar Pal Singh Gill,
3. Assaulting or using criminal force with intent to dishonour a person otherwise than,
on grave provocation (section 355).,
4. Assaulting or using criminal force in attempting to commit theft of property carried,
by a person (section 356).,
"5. Assaulting or using criminal force to any person, in attempting wrongfully to confine",
that person (section 357).,
Kidnapping.,
Kidnapping is of two kinds:,
"(I) Kidnapping from India, and",
(II) Kidnapping from lawful guardianship (section 359). [Seven years and fine.],
I. Whoever,
"(1) conveys any person beyond the limits of India,",
"(2) without the consent (a) of that person, or (b) of some person legally authorised to",
"consent on behalf of that person,",
is said to kidnap that person from India (section 360).,
"II. Whoever (a) takes, or (b) entices",
"(1) any minor (a) under 16 years of age, if a male, or (b) under 18 years of age, if a",
"female, or",
"(2) any person of unsound mind,",
"(3) out of the keeping of the lawful guardian of such minor or person of unsound mind,",
"(4) without the consent of such guardian,",
is said to kidnap such minor or person from lawful guardianship (section 361).,
These sections protect children of tender age from being kidnapped or seduced for,
"immoral purposes, as well as protect the rights of parents and guardians having the",
custody of minors or insane persons.,
The persons kidnapped must be taken out of the possession of the parent by any,
"means, forcible or otherwise: and the consent of the person kidnapped does not lessen",
the offence.,
The offence of kidnapping is complete when the minor is actually taken from lawful,
guardianship (R v Nemai Chattoraj; R v Ram Dei; Nanhak Sao v King-Emperor).,
Kidnapping from guardianship is not a continuing offence.,
It is no defence that the accused did not know that the person kidnapped was under 18,
or believed that she had no guardian. Anyone dealing with such person does so at his,
peril. The period of detention is immaterial.,
The circumstance that the act of the accused was not immediate cause of the girl,
leaving her father's place is no defence if he had at an earlier stage solicited her or,
induced her to take this step (Varadrajan).,
Leading cases:—T D Vadgama. Sachindra Nath.,
Abducting.,
A person is said to 'abduct' another if he,
"(1) by force compels, or",
"(2) by any deceitful means induces,",
any person to go from any place (section 362).,
'Abduction' differs from 'kidnapping'—,
(1) In 'abduction' the removal of the person need not be from the protection of the,
lawful guardian.,
(2) The element of force or fraud existing in 'abduction' is absent in kidnapping.,
"(3) In 'abduction' the age of the person abducted is immaterial, in 'kidnapping', the",
"person must be under 16, if a male, and under 18, if a female.",
(4) Abduction is a continuing offence. Kidnapping is not a continuing offence.,
The following are aggravated forms of the offence of 'kidnapping' or 'abducting':—,
1. Kidnapping or maiming a minor for purposes of begging (section 363A).,
"2. Kidnapping or abducting in order to murder (section 364). Badshan v State of UP,",
(2008) 3 SCC 681 [LNIND 2008 SC 310] .,
"2a. Kidnapping for ransom, etc., (section 364-A) Suman Sood v State of Rajasthan,",
"(2007) 5 SCC 634 [LNIND 2007 SC 647] , statement of ingredients.",
3. Kidnapping or abducting with intent secretly and wrongfully to confine a person,
(section 365).,
4. Kidnapping or abducting a woman to compel her to marry any person against her,
"will, or to force or seduce her to illicit intercourse (section 366).",
Leading case:—Ramesh.,
"Punishment followed where the offence was established by other evidence, though the",
body of the young widow who was subjected to gang rape was not traceable.,
Leading case:—Arun Kumar v State of UP.,
"5. Inducing a woman to go from any place, by means of criminal intimidation or abuse",
"of authority or any method of compulsion, in order that she may be forced or seduced",
to illicit intercourse (ibid).,
6. Inducing a minor girl under the age of 18 years to go from any place or to do any act,
with the intention or knowledge that she will be forced or seduced to illicit intercourse,
(section 366A).,
7. Importing a girl under 21 years of age from a foreign country or from the State of,
Jammu and Kashmir with intent or knowledge that she will be forced or seduced to,
illicit intercourse (section 366B).,
"8. Kidnapping in order to subject a person to grievous hurt, slavery, or unnatural lust",
(section 367).,
9. Wrongfully concealing or confining a kidnapped or abducted person (section 368).,
10. Kidnapping or abducting a child under 10 years with intent to steal movable,
property from the person of such child (section 369).,
Offences dealing with trafficking,
1. Trafficking of person (section 370),
2. Exploitation of a trafficked person (section 370A),
"3. Habitually importing, exporting, removing, buying, selling, trafficking or dealing in",
slaves (section 371).,
Sale of minor for immoral purposes.,
Two provisions relate to selling or buying of persons under 18 years of age for immoral,
purposes:—,
"1. Selling, letting to hire, or otherwise disposing of any person under the age of 18 years",
"for the purpose of (a) prostitution, or (b) illicit intercourse, or (c) for any unlawful and",
"immoral purpose, or (d) knowing it to be likely that such person will at any age be used",
for such a purpose (section 372).,
"2. Buying, hiring, or otherwise obtaining possession of such person for a like purpose",
(section 373).,
"When a girl under 18 years is disposed of to, or is obtained possession of by, a",
"prostitute or a brothel-keeper, the person disposing of or obtaining possession of such",
"girl shall be presumed to have disposed of her or obtained possession of her, for",
"prostitution (Explanation 1, sections 372 and 373).",
"""Illicit intercourse"" means sexual intercourse between persons not united by marriage,",
"or by any union or tie which, though not amounting to a marriage, is recognized by the",
"personal law or custom of the community to which they belong or, where they belong to",
"different communities, of both such communities, as constituting between them a",
"quasimarital relation (Explanation 2, sections 372 and 373).",
Unlawful labour.,
"Unlawfully compelling any person to labour against his will [One year or fine, or both",
(section 374).],
Sexual offences,
"As introduced by the Criminal law (Amendment Act), 2013—A man is said to commit",
"""rape"" if he—",
"(a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a",
woman or makes her to do so with him or any other person; or,
"(b) inserts, to any extent, any object or a part of the body, not being the penis, into the",
"vagina, the urethra or anus of a woman or makes her to do so with him or any other",
person; or,
(c) manipulates any part of the body of a woman so as to cause penetration into the,
"vagina, urethra, anus or any part of body of such woman or makes her to do so with",
him or any other person; or,
"(d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so",
"with him or any other person,",
under the circumstances falling under any of the following seven descriptions:—,
First.—Against her will.,
Second.—Without her consent.,
"Third.—With her consent, when her consent has been obtained by putting her or any",
"person in whom she is interested, in fear of death or of hurt.",
"Fourth.—With her consent, when the man knows that he is not her husband and that",
her consent is given because she believes that he is another roan to whom she is or,
believes herself to be lawfully married.,
"Fifth.—With her consent when, at the time of giving such consent, by reason of",
unsoundness of mind or intoxication or the administration by him personally or through,
"another of any stupefying or unwholesome substance, she is unable to understand the",
nature and consequences of that to which she gives consent.,
"Sixth.—With or without her consent, when she is under 18 years of age.",
Seventh.—When she is unable to communicate consent.,
Leading cases:—Rameswar. Bhoginbhai. Rafique.,
It is a crime against basic human rights violative of Article 21 of the Constitution. The,
courts should deal with such offence sternly and severely. The victim's testimony can,
be acted upon without corroboration in material particulars. Aman Kumar v State of,
"Haryana, (2004) 4 SCC 379 [LNIND 2004 SC 184] .",
"For the purposes of this section, ""vagina"" shall also include labia majora (Explanation-",
"1). Consent means an unequivocal voluntary agreement when the woman by words,",
"gestures or any form of verbal or non-verbal communication, communicates",
willingness to participate in the specific sexual act (Explanation-2).,
A medical procedure or intervention shall not constitute rape (Excep.1).,
"Sexual intercourse or sexual acts by a man with his own wife, the wife not being under",
"15 years of age, is not rape (Excep. 2). See Independent Thought v UOI, where the",
Supreme Court held that sexual intercourse with girl below 18 years of age is rape,
regardless of whether she is married or not. The Supreme Court held that Exception 2,
"to section 375, IPC, 1860, is to read down as, ""Sexual intercourse or sexual acts by man",
"with his own wife, wife not being 18 years, is not rape"".",
Leading cases:—Balwant Singh v State of Punjab Arun Kumar v State of UP. Promod,
Mehta v State of Bihar.,
Indecent assault upon a woman does not amount to an attempt to commit rape unless,
the Court is satisfied that the accused was determined to gratify his passion at all,
"events, and in spite of all resistance.",
Leading case:—Rameshwar(see comments under section 354).,
Other Rape related offences,
Causing death or resulting in persistent vegetative state of victim (section 376A),
Sexual intercourse by husband upon his wife during separation (section 376B),
Sexual intercourse by a person in authority (section 376C),
Gang rape (section 376D),
Punishment for repeat offenders (section 376E),
The circumstances in which the corroboration of the testimony of the victim of a rape,
would be necessary have been explained by the Supreme Court in State of Maharashtra,
v CK Jain.,
The mitigating circumstances which would enable the Court to award less than 10,
years' imprisonment have been explained by the Supreme Court in State of Haryana v,
"Prem Chand, with this caution that though the conduct of the prosecutrix in the facts",
"and circumstances of the case may be taken into account, her general character or",
"reputation would neither be an aggravating factor, if good, nor a mitigating factor, if",
bad.,
The need for proper identification of the offender and that of promptitude in filing FIR,
have also been explained.,
Leading cases:—Harpal Singh v State of HP; R v Chance.,
Unnatural offence.,
"Unnatural offence is having (1) carnal intercourse, (2) against the order of nature, (3)",
"with any man, woman or animal (section 377).",
Leading case:—Navtej Singh Johar v UOI (holding that consensual carnal intercourse,
"among adults in private space, does not in any way harm public decency or morality).",
Offences against property. Chapter XVII.,
The following are the offences against property dealt with in Chapter XVII:—,
1. Theft.,
2. Extortion.,
3. Robbery.,
4. Dacoity.,
5. Criminal misappropriation of Property.,
6. Criminal Breach of Trust.,
7. Receiving stolen property.,
8. Cheating.,
9. Fraudulent deeds and dispositions of Property.,
10. Mischief.,
11. Criminal trespass.,
The above offences may be grouped in three classes:—,
(1) Offences dealing with deprivation of property (sections 378–424).,
(2) Offences dealing with injury to property (sections 125–440).,
(3) Offences dealing with violation of rights of property in order to the commission of,
some other offence (sections 441–462).,
Theft.,
A person is said to commit theft who,
"(1) intending to take dishonestly,",
"(2) any movable property,",
"(3) out of the possession of any person,",
"(4) without that person's consent,",
"(5) moves that property, in order to such taking (section 378). [Three years, or fine, or",
both (section 379).],
A thing attached to the earth can be the subject of theft when separated from the,
earth. A person moving an obstacle which prevented a thing from moving is said to,
cause it to move. A person causing an animal to move is said to move whatever is,
thereby moved by the animal. The owner's consent may be express or implied,
(Explanations).,
The intention to take dishonestly must exist at the time of the moving of the property. If,
"the act is not done animofurandi, it will not amount to theft. The test is: Is the taking",
warranted by law? It is not necessary that the taking should be of a permanent,
"character, or that the accused should have derived any profit. Property removed in the",
assertion of a contested claim does not constitute theft. A bona fide claim of right,
rebuts the presumption of dishonesty. But a creditor removing a debtor's property to,
enforce payment is liable. A person taking dishonestly his own property out of the,
"possession of another is guilty of this offence. Thus, the person from whose",
possession the property is taken may not be the owner. If one of the joint owners takes,
exclusive possession of joint property dishonestly he would be guilty of theft. The least,
removal of the thing from its place is sufficient for the offence. It does not matter,
whether the property remains within its owner's reach or not.,
"Leading cases:—Ramratan, K N Mehra, Chandi Kumar v Abanidhar Roy, R v Nagappa, R v",
"Shri Churn Chungo, Ram Ekbal.",
The following are aggravated forms of the offence:—,
"1. Theft in any building, tent, or vessel, used as a human dwelling or for the custody of",
property (section 380).,
"2. Theft by a clerk or a servant, of property in possession of his master (section 381).",
"3. Theft after preparation made for causing death, hurt, or restraint, or fear of death,",
"hurt, or restraint to any person, in order to the committing of such theft or the effecting",
"of such escape afterwards, or the retaining of property taken by such theft (section",
382). Knowledge acquired by those who forced their entry into a house that there was,
only one old man inside and he suffered from a weak heart would be sufficient for,
"conviction, though they left without taking away anything and the man died behind",
"them, his heart giving way.",
Leading case:—R v Watson.,
Extortion,
A person commits 'extortion' if he,
(1) intentionally puts any person in fear of any injury,
"(a) to that person, or",
"(b) to any other, and thereby",
(2) dishonestly induces the person so put in fear,
(3) to deliver to any person any,
"(a) property, or",
"(b) valuable security, or",
"(c) anything signed or sealed, which may be converted into a valuable",
"security (section 383). [Three years, or fine, or both (section 384).]",
Putting any person in fear of injury in order to commit extortion [Two,
"years, or fine, or both (section 385).]",
"The inducement to part with the property should be dishonest, i.e., with intent to cause",
wrongful gain or loss.,
The 'fear' in extortion must be such as to unsettle the mind of the person on whom it,
operates and to take away from his acts that element of free voluntary action which,
alone constitutes consent. The terror of a criminal charge or of loss of an appointment,
"amounts to a fear of injury. 'Fear' must precede the delivery of property. Thus, wrongful",
"retention of property obtained without threat will not amount to extortion, even though",
subsequent threats are used to retain it.,
'Theft' differs from 'extortion':—,
(1) In 'theft' the property is taken without the owner's consent; in 'extortion' the consent,
is obtained by putting a person in fear of any injury to him or any other. In theft element,
of force does not arise.,
(2) 'Theft' can only be committed of movable property; 'extortion' may be committed of,
immovable property as well.,
The following are aggravated forms of extortion:—,
"1. Extortion by putting a person in fear of death, or grievous hurt to that person or to",
any other (section 386).,
"2. Putting or attempting to put any person in fear of death, or grievous hurt to himself",
or any other in order to commit extortion (section 387).,
"3. Extortion by threat of accusation of an offence, punishable with death or",
"imprisonment for life, or 10 years' imprisonment, or of having attempted to induce any",
other person to commit such offence (section 388).,
4. Putting or attempting to put any person in fear of such accusation as is mentioned,
above in order to commit extortion (section 389).,
Robbery. 'Robbery' is an aggravated form of either theft or extortion. In all 'robbery',
there is either theft or extortion.,
Theft is 'robbery' if—,
"(1) in order to the committing of the theft, or in committing the theft, or",
"(2) in carrying away, or attempting to carry away, property obtained by the theft,",
"(3) the offender, for that end, voluntarily causes, or attempts to cause, to any person",
"(a) death, hurt, or wrongful restraint, or",
"(b) fear of instant death, instant hurt, or instant wrongful restraint.",
"Extortion is 'robbery' if the offender, at the time of committing the extortion, is",
"(1) in the presence of the person put in fear, and",
"(2) commits the extortion by putting that person in fear of instant death, instant hurt, or",
"instant wrongful restraint to that person, or to some other person, and",
"(3) by so putting in fear, induces the person so put in fear then and there to deliver up",
the thing extorted (section 390). [Ten years and fine. If the robbery is committed on the,
"highway between sunset and sunrise, then 14 years (section 392). Attempt, seven",
"years and fine (section 393). If hurt is caused, imprisonment for life, or 10 years and",
fine (section 394).] The offender is said to be present if he is near enough to put the,
other in fear.,
"An accidental injury by a thief will not convert his offence into robbery. Similarly, if hurt",
"is caused to avoid capture, while retreating without any property, the offence will not",
"amount to robbery, e.g., throwing stones to avoid pursuit.",
Belonging to a wandering gang of persons associated for the purpose of habitually,
committing theft or robbery is made punishable (section 401).,
Dacoity.,
"When (1) five or more persons conjointly commit, or attempt to commit, a robbery, or",
"(2) where the whole number of persons conjointly committing or attempting to commit,",
"a robbery, and persons present and aiding such commission or attempt amount to five",
"or more, every person so committing, attempting or aiding, is said to commit 'dacoity'",
(section 391). [Imprisonment for life or 10 years (section 395).],
"If any one of the dacoits commits murder in committing dacoity, every one of them",
"shall be punished with death, or imprisonment for life, or rigorous imprisonment",
extending to 10 years and fine (section 396). It does not matter whether a particular,
"dacoit was inside the house where the dacoity was committed, or outside the house, so",
long as the murder is committed in the commission of the dacoity. It is not necessary,
"that the murder should be committed in the presence of all. It is, however, necessary",
"that murder should be committed in course of the commission of dacoity. Thus, while",
the dacoits were returning after an attempt to commit dacoity without any booty due to,
stiff opposition of the villagers and one of the dacoits to facilitate retreat killed one of,
"the villagers by shooting, it was held that as dacoity had ended the moment the dacoits",
took to their heels without any booty the murder was an individual act of the dacoit,
who fired the fatal shot and other dacoits could only be held liable for an offence under,
"section 395, IPC, 1860, and not under section 396.",
Leading case:—Shyam Behari.,
Preparation to commit dacoity is punishable (section 399). and so is either belonging,
"to a gang of dacoits (section 400), or assembling for the purpose of committing",
dacoity (section 402).,
Aggravated forms of robbery and dacoity are—,
(1) Offender using any deadly weapon at the time of committing robbery or dacoity or,
causing or attempting to cause death or grievous hurt to any person (section 397).,
For the purpose of this section it is not necessary that the weapon should be actually,
used. Mere carrying of the weapon causes a psychological sense of insecurity and fear,
and this would constitute enough use within the meaning of this section.,
Leading case:—Phool Kumar.,
"This section only applies to the offender who actually uses a deadly weapon, or causes",
grievous hurt.,
(2) Attempt to commit robbery or dacoity when armed with a deadly weapon (s 398).,
Criminal misappropriation.,
A person commits 'criminal misappropriation' if he,
(1) dishonestly misappropriates or converts to his own use,
"(2) any movable property (section 403). [Two years, or fine, or both.]",
The offence is committed though the misappropriation be only temporary. The finder of,
"property is not guilty if he takes it to protect it or to find the owner; but he is guilty, if he",
"appropriates it knowing the owner, or having the means of discovering him, or before",
"using reasonable means to discover him, or not believing it to be his own property, or",
not believing in good faith that the owner cannot be found (Explanations 1 and 2).,
"This offence takes place when the possession has been innocently come by, but where",
"by a subsequent change of intention, or from the knowledge of some new fact with",
"which the party was not previously acquainted, the retaining becomes wrongful and",
"fraudulent. Thus, retention of money by a servant authorized to collect it from a person",
may be criminal misappropriation even though he retains it on account of wages due to,
him.,
A person retaining money paid by mistake will be guilty of criminal misappropriation.,
But there can be no criminal misappropriation of things which have actually been,
abandoned.,
Leading cases:—Bhagiram v Abar Dome. R v Sita. Romesh Chunder v Hiru Mondal.,
'Theft' is distinguished from 'criminal misappropriation'—,
(1) In 'theft' the property is taken out of the possession of another person and the,
offence is complete as soon as the offender moves the property. In 'criminal,
misappropriation' there is no invasion of another's possession. The property is often,
innocently got into possession.,
(2) In 'theft' the dishonest intention must precede the act of taking; in 'criminal,
misappropriation' it is the subsequent intention to convert or misappropriate the,
property that constitutes the offence.,
There is a difference between 'criminal misappropriation' and 'cheating'. In 'criminal,
"misappropriation' as in 'criminal breach of trust', the original reception of property is",
"legal, the dishonest conversion takes place subsequently. In 'cheating' deception is",
practised to get possession of the thing.,
Dishonest misappropriation of property possessed by a deceased person at the time of,
his death is an offence (section 404).,
Criminal breach of trust.,
"A person commits 'criminal breach of trust', if he",
"(1) being in any manner entrusted with (a) property, or (b) any dominion over property;",
"(2) dishonestly (a) misappropriates, or (b) converts to his own use, that property; or",
"(3) dishonestly (a) uses, or (b) disposes of, that property;",
(4) in violation (a) of any direction of law prescribing the mode in which such trust is to,
"be discharged, or (b) of any legal contract, express or implied, which he has made",
touching the discharge of such trust; or,
"(5) wilfully suffers any other person so to do (section 405). [Three years, or fine, or both",
(section 406).],
The property may be movable or immovable.,
'Criminal misappropriation' differs from 'criminal breach of trust'—,
(1) In the former the property comes into the possession of the offender by some,
"casualty, and he afterwards misappropriates it; in the latter the offender is lawfully",
entrusted with property and he dishonestly misappropriates it or wilfully suffers any,
other person to do so.,
(2) 'Criminal breach of trust' only applies to conversion of property held by a person in a,
"fiduciary capacity; 'criminal misappropriation', to property coming into possession of",
the offender anyhow.,
(3) 'Criminal misappropriation' can only be of movable property. 'Criminal breach of,
"trust' can be of any property, movable or immovable.",
The following are aggravated forms of criminal breach of trust:—,
"1. Criminal breach of trust by a carrier, wharfinger, or warehouse-keeper (section 407).",
2. Criminal breach of trust by a clerk or servant (section 408).,
"3. Criminal breach of trust by a public servant, banker, merchant, factor, broker, attorney",
or agent (section 409).,
The Supreme Court has laid down that the offence is not wiped off by reason of the,
fact that the money in question has been returned or accounted for.,
Leading case:—Viswanath v State of J&K.,
Stolen property.,
'Stolen property' is—,
"(1) property the possession whereof has been transferred by (a) theft, (b) extortion, or",
(c) robbery;,
(2) property criminally misappropriated;,
(3) property in respect of which criminal breach of trust has been committed.,
"It is immaterial whether the transfer has been made, or the misappropriation or breach",
"of trust has been committed, within or without India. But if such property subsequently",
"comes into the possession of a person legally entitled to the possession thereof, it",
ceases to be stolen property (section 410). [Receiving or obtaining stolen property,
"knowing it to be such is punishable with three years, or fine, or both (section 411).] A",
"person who is found to be in the possession of property shortly after an offence, is",
presumed to be criminally mixed up with the transaction. The Supreme Court has,
"explained the meaning of the term ""recent possession"" in this connection.",
Leading case:—Earabhadrappa v State of Karnataka.,
This section does not apply to the actual thief when theft is committed in India.,
If stolen goods are restored to the possession of the owner and he returns them to the,
"thief for the purpose of enabling him to sell them to a third person, they are no longer",
stolen goods; and the third person cannot be convicted of receiving them although he,
received them knowing them to be stolen.,
'Dishonest retention' of property is distinguished from 'dishonest reception' of it. In the,
"former offence the dishonesty supervenes after the act of acquisition of possession,",
while in the latter dishonesty is contemporaneous with such act. Thus a person cannot,
be convicted of 'receiving' if he has no guilty knowledge at the time of receipt. But he is,
guilty of 'retaining' if he subsequently knows or has reason to believe that the property,
"was stolen. Neither the thief, nor the receiver of stolen property, commits the offence of",
retaining such property dishonestly merely by continuing to keep possession of it.,
Property into or for which the stolen property has been converted or exchanged is not,
"stolen property, e.g., proceeds of a stolen cheque, or the change given for a stolen",
currency-note. But an ingot made out of stolen ornaments still retains it character as,
stolen property.,
"Res nullius cannot be the subject of receiving, e.g., a bull let loose as a part of religious",
ceremony and belonging to no one is not the subject of theft.,
"If articles belonging to different persons are received at one time, the conviction will be",
only for one act of receiving and not separate convictions.,
The following are aggravated forms of this offence:—,
1. Dishonestly receiving property stolen in the commission of a dacoity (section 412).,
2. Habitually dealing in stolen property (section 413).,
"3. Voluntarily assisting in concealing or disposing of, or making away with, stolen",
property (section 414).,
Cheating.,
A person is said to 'cheat' if he,
(1) by deceiving any person;,
(2) fraudulently or dishonestly induces the person so deceived;,
(3) to deliver any property to any person; or,
(4) to consent that any person shall retain any property; or,
(5) intentionally induces the person so deceived to do or omit to do anything which he,
would not do or omit if he were not deceived; and which,
"(6) act or omission causes, or is likely to cause, damage or harm to that person in body,",
"mind, reputation, or property (section 415).",
Dishonest concealment of facts is a deception (Explanation).,
"[One year, or fine, or both (section 416).]",
"Like 'extortion', cheating is committed by the wrongful obtaining of a consent. The",
"difference is that, in the former the consent is obtained by intimidation, in the latter, by",
deception.,
'Cheating' also differs from 'theft',
"(1) In the former the property obtained by deception may be movable or immovable, in",
"the latter, it must be movable.",
"(2) In 'theft' the property is taken without the consent of the owner, in 'cheating' the",
owner's consent is obtained by deception.,
It is not necessary that cheating should be committed in express words if it can be,
inferred from all the circumstances attending the obtaining of property. But it is,
necessary that a person should be deceived. If a person knows what the deception is,
"and acts on it, the person practising deception will be guilty of attempt to cheat but not",
of cheating. The offence will be committed even if the person deceived is other than,
"the one on whom the deception is practised. Similarly, it is not necessary that there",
should be an intent to deceive any particular individual. If a false prospectus or,
"balance-sheet is issued to the public, or to a section of the public, the persons issuing it",
will be guilty of cheating although there was no intent to deceive any one in particular,
(R v Ross).,
The person to whom the property is delivered may not be participescriminis. Property,
obtained by cheating does not fall within the definition of stolen property.,
"Mere puffing will not amount to this offence (R v Bryan, the Elkington spoon case).",
Leading cases:—R v Abbas Ali. R v Appasami. R v Soshi Bhushan. Bashirbhai.,
"If the deception is in regard to a future event, then there must be evidence of an",
intention to cheat when the deception was made. Mere failure to carry out a promise is,
"not enough. A man may intend to fulfil his promise, but subsequently he may change",
his mind.,
The following are aggravated forms of cheating:—,
1. Cheating with knowledge that wrongful loss may thereby be caused to a person,
whose interest the offender is bound to protect (section 418).,
"2. Cheating by personation (sections 416, 419).",
3. Cheating and thereby dishonestly inducing the person deceived to deliver any,
"property to any person, or to make, alter, or destroy a valuable security, or anything",
"which is signed or sealed, and which is capable of being converted into a valuable",
security (section 420). Provisions of the section.,
A person is said to 'cheat by personation' if he cheats,
Cheating by personation.,
"(1) by pretending to be some other person, or",
"(2) by knowingly substituting one person for another, or",
(3) by representing that he or any other person is a person other than he or such other,
person really is (section 416).,
It is immaterial whether the individual personated is a real or imaginary person,
"(Explanation). [Three years, or fine or both (section 417).]",
"As soon as a man by words, act, or sign, holds himself out as a particular person with",
"the object of passing himself off as that person, and exercising the right which that",
"person has, he has personated him. For instance, if A represents himself to be B at an",
"examination, or represents himself to be of a particular caste which he is not, or gives a",
"false description of his position in life, he commits this offence.",
Fraudulent deeds and dispositions.,
The following provisions relate to fraudulent deeds and dispositions of property:—,
1. Dishonest or fraudulent removal or concealment or transfer of property to prevent,
distribution among creditors (section 421).,
2. Dishonestly or fraudulently preventing from being made available for creditors a debt,
or demand due to the offender or to any other person (section 422).,
"3. Dishonestly or fraudulently signing, executing or becoming a party to any instrument",
which purports to transfer or charge any property and which contains any false,
statement as to the consideration for such transfer or charge or as to the person or,
persons for whose benefit it is intended to operate (section 423).,
4. Dishonestly or fraudulently concealing or removing any property of the offender or of,
"any other person or assisting in the concealment, or removal thereof, or dishonestly",
releasing any demand or claim to which the offender is entitled (section 424).,
A person commits 'mischief' if he,
Mischief.,
"(1) with intent to cause, or knowing that he is likely to cause, wrongful loss or damage",
to (a) the public or (b) any person;,
"(2) causes (a) the destruction of any property, or (b) any such change in any property,",
"or in the situation thereof, as destroys or diminishes its value or utility, or affects it",
injuriously (section 425).,
The offender need not intend loss or damage to the owner. The property may belong to,
"the offender, or to him jointly with others (Explanation). [Three months, or fine or both",
(section 426).],
A man may commit mischief on his own property to cause wrongful loss to some,
person. If a person does any act amounting to mischief in the exercise of a bona fide,
claim or right he cannot be convicted of this offence. An act done through negligence,
"will never amount to mischief. Mischief cannot be committed in respect of a res nullius,",
"e.g., killing a bull which was set free.",
The aggravated forms of mischief are as follows:—,
"1. Committing mischief, and thereby causing damage to the amount of Rs. 50 (section",
427).,
"2. Mischief by killing, poisoning, rendering useless, or maiming any animal of the value",
of Rs. 10 (section 428).,
"3. Mischief by killing, poisoning, maiming or rendering useless any elephant, camel,",
"horse, mule, buffalo, bull, cow or ox or any other animal of the value of Rs. 50 or",
upwards (section 429).,
"This offence is similar to that created under section 50 of the Wild Life Protection Act,",
"1972. The two enactments are, therefore, not likely to attract the doctrine of double",
jeopardy.,
Leading case:—State of Bihar v Murad Ali Khan.,
4. Mischief by injury to works of irrigation or by wrongfully diminishing the supply of,
"water for agricultural purposes or for food, or drink, or cleanliness (section 430).",
"5. Mischief by injury to public road, bridge, river or channel, so as to render it",
impassable or less safe for travelling or conveying property (section 431).,
6. Mischief by causing inundation or obstruction to public drainage attended with,
damage (section 432).,
"7. Mischief by destroying, or moving or rendering less useful a light house or sea-mark",
or by exhibiting false lights (section 433).,
"8. Mischief by destroying, moving, or rendering less useful any land-mark fixed by the",
authority of a public servant (section 434).,
9. Mischief by fire or explosive substance with intent to cause damage to the amount,
of Rs. 100 or upwards or where the property is agricultural produce—Rs. 10 or upwards,
(section 435).,
10. Mischief by fire or explosive substance with intent to destroy any building used as a,
"place of worship, or human dwelling, or as a place for the custody of property (s. 436).",
"What is a new development under the section, the Madras High Court allowed public",
interest litigation under the section and compelled the State to pay compensation to,
the victims of a riot to whom the State did not provide any protection at the material,
time nor prosecuted the offenders afterwards.,
Leading case:—R Gandhi v UOI.,
11. Mischief with intent to destroy or make unsafe a decked vessel or a vessel of 20,
tons burden (section 437).,
12. Mischief or attempt to commit mischief with fire or any explosive substance,
(section 438).,
13. Intentionally running a vessel aground or ashore with intent to commit theft or,
misappropriation of property (section 439).,
"14. Mischief committed after preparation made for causing to any person death, hurt,",
"or wrongfully restraint, or fear of death, hurt, or wrongful restraint (section 440).",
A person commits 'criminal trespass' if he,
Criminal trespass.,
(1) enters into or upon property in the possession of another;,
(2) with intent to commit an offence; or,
"(3) to intimidate, insult, or annoy any person in possession of such property; or",
(4) having lawfully entered into or upon such property unlawfully remains there;,
"(a)with intent to intimidate, insult, or annoy any such person, or",
"(b)with intent to commit an offence (section 441). [Three months or Rs. 500, or both",
(section 447).],
Trespass can only be committed in respect of corporeal property. The essence of the,
"offence is the intention with which it is committed. The causing of such annoyance,",
intimidation or insult must be the main aim of the entry (Mathri). It is not necessary that,
the intention must be to annoy a person who is actually present at the time of the,
trespass (Rash Behari). A person entering on the land of another in the exercise of a,
bona fide claim of right will not be guilty though the claim is unfounded. But if the entry,
is made with intent to annoy it does not matter whether it was made under a claim of,
"right. The annoyance must be such as would affect an ordinary man, not what would",
specially and exclusively annoy a particular individual of a queer temperament.,
The property must be in the actual possession of a person other than the trespasser. It,
is de facto and not de jure possession that is necessary. The person in possession may,
be an individual or a corporate person.,
"The entry must be to commit an offence as defined in section 40, and not any unlawful",
act. Thus entering an exhibition building without a ticket does not amount to criminal,
trespass. Slum dwellers upon public land cannot be equated with a trespasser under,
these sections. Their action has been described by the Supreme Court to be not,
"voluntary, but one due to compulsion of circumstances.",
Leading case:—Olga Tellis v Bombay MC.,
House-trespass.,
A person commits 'house-trespass' if he,
(1) commits criminal trespass,
"(2) by entering into, or remaining in",
"(a) any building, tent, or vessel used as a human dwelling, or",
(b) any building,
"(i) used as a place of worship, or",
(ii) as a place for the custody of property (section 442).,
"Introduction of any part of the trespasser's body is sufficient (Explanation). [One year,",
"or Rs. 1,000, or both (section 448).]",
The following are aggravated forms of this offence:—,
1. House-trespass in order to the commission of an offence punishable with death,
(section 449).,
2. House-trespass in order to the commission of an offence punishable with,
imprisonment for life (section 450).,
3. House-trespass in order to the commission of an offence punishable with,
imprisonment (section 451).,
"4. House-trespass after preparation made for causing hurt, assault, or wrongful",
"restraint to any person, or for putting any person in fear of hurt, assault, or wrongful",
restraint (section 452).,
Lurking house-trespass.,
"'Lurking house-trespass' is house-trespass, after taking precautions to conceal such",
house-trespass from some person who has a right to exclude or eject the trespasser,
"from the building, tent, or vessel which is the subject of the trespass (section 443).",
[Two years and fine (s. 453).],
Whoever commits lurking house-trespass after sunset and before sunrise is said to,
commit 'lurking house-trespass' by night (section 444). [Three years and fine (section,
456).],
House-breaking.,
A person is said to commit 'house-breaking' if he,
"(a) commits house-trespass, and effects his entrance into the house, or",
"(b) if being in the house for committing an offence, or after committing an offence,",
quits it in any of the following ways—,
"(1) Through a passage made by himself, or by any abettor of the house-trespass, in",
order to the committing of the house-trespass.,
"(2) Through any passage not intended by any person other than himself, or an abettor",
"of the offence, for human entrance, or through any passage to which he has obtained",
access by scaling or climbing over any wall or building.,
"(3) Through any passage which he, or any abettor of the house-trespass, has opened, in",
order to the committing of the house-trespass by any means by which that passage,
was not intended by the occupier of the house to be opened.,
(4) By opening any lock.,
"(5) By using criminal force, or committing an assault, or by threatening any person with",
assault.,
(6) By any passage which he knows to have been fastened against such entrance or,
"departure, and to have been unfastened by himself, or by an abettor of the house-",
trespass (section 445). [Two years and fine (section 453).],
House-breaking after sunset and before sunrise is said to be 'house-breaking by night',
(section 466). [Three years and fine (section 456).],
The following are aggravated forms of the offence of lurking house-trespass and,
housebreaking:—,
1. Lurking house-trespass or house-breaking in order to the commission of an offence,
punishable with imprisonment (section 454).,
2. Lurking house-trespass or house-breaking after preparation made for causing hurt to,
any person (section 455).,
3. Causing grievous hurt or attempting to cause death or grievous hurt to any person,
whilst committing lurking house-trespass or house-breaking (section 459).,
The following are aggravated forms of the offence of 'lurking house-trespass by night',
and 'house-breaking by night':—,
1. Lurking house-trespass or house-breaking by night in order to the commission of an,
offence punishable with imprisonment (section 457).,
"2. Lurking house-trespass or house-breaking by night, after preparation made for",
causing hurt to any person (section 458).,
All persons jointly concerned in lurking house- trespass or house-breaking by night are,
punishable where death or grievous hurt is caused by one of them (section 460).,
Dishonestly breaking open a receptacle containing property is punishable (section,
461). The punishment is much more severe when such act is committed by a person,
who is entrusted with its custody (section 462).,
Chapter XVIII deals with offences relating to documents and to property marks.,
A person commits forgery if he,
Forgery. Chapter XVIII.,
"(1) makes any false document, or part of a document,",
(2) with intent,
"(a) to cause damage or injury to the public or to any person, or",
"(b) to support any claim or title, or",
"(c) to cause any person to part with property, or",
"(d) to enter into any express or implied contract, or",
"(e) to commit fraud, or that fraud may be committed (section 463).",
"[Three years, or fine or both (section 465).] Using as genuine a forged document is",
punishable likewise (section 471).,
A person is said to make a false document—,
"I. If he dishonestly or fraudulently (a) makes, signs, seals, or executes a document,",
(b) with the intention of causing it to be believed that such document or part of a,
"document was made, signed, sealed or executed",
"(i) by, or by the authority of a person by whom, or by whose authority he knows that",
"it was not made, signed, sealed, or executed, or",
"(ii) at the time at which he knows that it was not made, signed, sealed, or executed.",
Or,
"II. If he dishonestly, or fraudulently, without lawful authority by cancellation or",
"otherwise,",
"(a) alters a document in any material part thereof,",
"(b) after it has been made or executed either by himself, or by any other person,",
"whether such person be living, or dead at the time of such alteration. Or",
"III. If he dishonestly or fraudulently causes any person to sign, seal, execute, or alter a",
"document, knowing that such person",
"(a) by reason of unsoundness of mind, or intoxication cannot, or",
"(b) by reason of deception practised upon him, does not, know the contents of the",
"document, or the nature of the alteration (section 464).",
A man's signature of his own name may amount to forgery (Explanation 1). But this,
must have been done in order that it may be mistaken for the signature of another,
person of the same name. Making a false document in the name of a fictitious person,
"intending it to be believed that the document was made by a real person, or in the name",
of a deceased person intending it to be believed that the document was made by that,
person in his lifetime may amount to forgery (Explanation 2). A false document made,
wholly or in part by forgery is designated 'a forged document' (section 470).,
It is not an essential quality of the fraud mentioned in the section that it should result in,
or aim at deprivation of property. The offence is complete as soon as a document is,
made with intent to commit a fraud. But the false document must appear on its face to,
"be one which, if true, would possess some legal validity or must be legally capable of",
"effecting the fraud intended. A writing, though not legal evidence of the matter",
"expressed, may yet be a document if the parties framing it believed and intended it to",
be evidence of such matter. It is not necessary that the document should be made in,
the name of a really existing person.,
Counterfeiting a document to support a legal claim will amount to forgery. Antedating a,
document or inserting a false date in it constitutes forgery.,
"A general intention to defraud, without the intention of causing wrongful gain or loss to",
"any particular person, is sufficient. There must, however, be a possibility of some",
person being defrauded. A man may have an intent to defraud and yet there may not be,
any person who could be defrauded by his act.,
"If several persons combine to forge an instrument and each takes a distinct part in it,",
they are nevertheless all guilty.,
It will amount to forgery even though the fabricated document purports to be a copy of,
another document.,
Personation at an examination will amount to forgery as well as cheating.,
Leading cases:—R v Abbas Ali. R v Lalit Mohan. R v Shoshi Bhushan. R v Kotamraju.,
Harnam Singh.,
A document made to conceal a previous fraudulent or dishonest act amounts to,
forgery. But such falsification is not forgery if it is only for the purpose of concealing a,
previous negligent act.,
The following are aggravated forms of the offence of forgery:—,
"1. Forgery of a record of a Court of Justice or of a register of births, baptism, marriage",
"or burial, or a certificate or authority to institute or defend a suit or a power of attorney",
(section 464).,
2. Forgery of a valuable security or will (section 467).,
3. Forgery for the purpose of cheating (section 468).,
4. Forgery for the purpose of harming the reputation of any person (section 469).,
Other offences relating to documents are:—,
"1. Making or possessing a counterfeit seal, plate, etc., with intent to commit forgery",
punishable under section 467 (section 472).,
2. Same as above when punishable otherwise (section 473).,
"3. Possession of a valuable security or will, known to be forged, with intent to use it as",
genuine (section 474).,
4. Counterfeiting a device or mark used for authenticating any document described in,
"section 467, or possessing counterfeit marked material (section 475).",
5. Same as above when the documents are other than those described in section 467,
(section 476).,
"6. Fraudulent cancellation, destruction, defacement or secreting, etc., of a will or an",
"authority, to adopt, or a valuable security (section 477).",
7. Falsification of accounts by a clerk or officer or servant with intent to defraud,
(section 477A).,
Property-mark.,
A mark used for denoting that movable property belongs to a particular person is called,
a 'property-mark' (section 479).,
A person uses a false property-mark,
"(1) if he marks any movable property or goods, or any case, package, or other",
receptacle containing movable property or goods; or,
"(2) uses any case, package or other receptacle, having any marks thereon;",
(3) in a manner reasonably calculated to cause it to be believed that the property or,
"goods contained in any such receptacle so marked, belong to a person to whom they",
"do not belong (section 481). [One year, or fine, or both (section 482).]",
The function of a property-mark to denote certain ownership is not destroyed because,
any particular property on which it is impressed ceases to be of that ownership.,
While trade-mark denotes the manufacture of quality of the goods to which it is,
"attached, property-mark, the ownership of them.",
The following offences relate to counterfeiting any property-mark used by a person:—,
1. Counterfeiting any property-mark used by another (section 483).,
2. Counterfeiting a mark used by a public servant to denote that any property has been,
manufactured by a particular person or at a particular time or place or that property is,
of a particular quality or has passed through a particular office or that it is entitled to,
any exemption (section 484).,
3. Making or possession of any instrument for counterfeiting a property-mark (section,
485).,
4. Selling or exposing or possessing for sale or any purpose of trade or manufacture,
any goods or things with a counterfeit property-mark (section 486).,
5. Making a false mark upon any receptacle containing goods (unless without intent to,
defraud) (section 487).,
6. Making use of any false mark (unless without intent to defraud) (section 488).,
7. Tampering with property-mark with intent to cause injury (section 489).,
There are five offences relating to currency-notes and bank-notes.—,
Currency-notes and bank-notes.,
1. Counterfeiting currency-notes or bank-notes (section 489A),
"2. Selling, buying, or using as genuine forged or counterfeit currency-notes or bank-",
notes knowing the same to be forged or counterfeit (section 489B).,
"3. Possession of forged or counterfeit currency-notes or bank-notes, knowing or having",
reason to believe the same to be forged or counterfeit and intending to use the same,
as genuine (section 489C). Possession and knowledge that the currency notes in,
question were counterfeit are both necessary. The section is not confined to Indian,
"currency notes alone. K Hashim v State of TN, (2005) 1 SCC 237 [LNIND 2004 SC 1142]",
.,
4. Making or possessing instruments or materials for forging or counterfeiting,
currency-notes or bank-notes (section 489D). It is not necessary that the machinery for,
counterfeiting found in possession of the accused should be the whole set required for,
"counterfeiting. K Hashim v State of TN, (2005) 1 SCC 237 [LNIND 2004 SC 1142] .",
5. Making or using documents resembling currency-notes or bank-notes (section,
489E).,
"The expression ""currency-notes"" or ""bank-notes"" would include such notes of a foreign",
"country. In other words, foreign currency would also be within the mischief of these",
provisions.,
"Leading case:—State of Kerala v Mathai Verghese, (1986) 4 SCC 746 [LNIND 1986 SC",
461] .,
Contract of service. Chapter XIX.,
Chapter XIX treats of criminal breach of contracts of service.,
The only case in which the Code now punishes a breach of contract is the following:—,
Voluntarily omitting to perform a lawful contract to attend on or supply the wants of a,
"child, or an insane or a sick person, who is incapable of providing for his own safety or",
"of supplying his own wants (section 491). [Three months, or Rs. 200, or both.]",
"Ordinary servants, such as cooks, do not come within the purview of this section.",
Marriage. Chapter XX.,
Chapter XX deals with offences relating to marriage.,
The following two provisions relate to mock or invalid marriages:—,
1. Cohabitation caused by a man deceitfully inducing a belief of lawful marriage,
(section 493). [Ten years and fine.],
2. Dishonestly or fraudulently going through a marriage ceremony knowing that no,
lawful marriage is thereby created (section 496). [Seven years and fine.],
The latter offence differs from the former in the fact that in it the ceremony is gone,
"through, which is valid on the face of it but invalid for some reason known to one party,",
or the other. The former section applies to deception practised by a man on a woman;,
the latter applies to an offence by a man as well as by a woman.,
Bigamy.,
A person commits 'bigamy' if that person,
"(1) having a husband or a wife living,",
"(2) marries in any case in which such marriage is void,",
(3) by reason of its taking place during the life of such husband or wife (section 494).,
[Seven years and fine.] If the former marriage is concealed from the person with whom,
"the subsequent marriage is contracted, the punishment is ten years and fine (section",
495).,
There are two exceptions in which the second marriage is not an offence—,
(1) When the first marriage has been declared void by a Court of competent,
jurisdiction.,
(2) When the husband or wife has been continually absent or not heard of for seven,
"years, provided that this fact be disclosed to the person with whom the second",
marriage is contracted.,
This section applies to Mohammedan women but not to men of that community and to,
"Hindus, Christians and Parsis of either sex.",
"The first marriage must be a valid marriage. But a Mohammedan girl has the option, if",
"Shia, to ratify, or if Sunni, to cancel, her marriage on reaching the age of puberty if a",
person other than her father or grand-father had given her in marriage.,
"If the marriage is not a valid marriage according to the law applicable to the parties, no",
question of its being void by reason of its taking place during the life time of the,
husband or the wife of the person arises and this section does not apply. Admission of,
marriage by the accused is not evidence of it in a bigamy case; the second marriage as,
"a fact and the essential ceremonies constituting it, must be proved. The Courts are not",
now so emphatic about proof of ceremonies. Indu Bhagya Natekar v BP Natekar.,
Conversion of a Hindu wife to Mohammedanism or Christianity does not dissolve her,
marriage with her Hindu husband and if she marries a Mohammedan or a Christian she,
commits bigamy.,
"Leading cases:—R v Ram Kumari, R v Ganga; R v Millard; Bhaurao Shankar, Kanwal Ram.",
"It appears, however, that a Christian cannot by embracing Mohammedanism marry a",
second time during the lifetime of his first wife. He cannot cast off to the winds a,
contractual obligation by his own act.,
"The rigour of the second exception was somewhat modified in Tolson's case, which",
lays down that if the second marriage takes place within seven years under a bona fide,
"belief based on reasonable grounds that the former consort was dead, no offence",
would be committed.,
Adultery.,
"A person commits adultery, if he",
"(1) has sexual intercourse with a person,",
"(2) whom he knows or has reason to believe to be the wife of another man,",
"(3) without the consent or connivance of that man,",
(4) such sexual intercourse not amounting to the offence of rape (section 497). [Five,
"years, or fine, or both.]",
Leading case:—Joseph Shine v UOI (holding section 497 unconstitutional).,
"Taking or enticing away or concealing or detaining a woman, knowing or having reason",
"to believe her to be married, from her husband, in order that she may have illicit",
"intercourse with any man is punishable (section 498). [Two years, or fine, or both.]",
Cruelty to married woman.—Husband or relative of husband of a woman subjecting her,
to cruelty is liable to be punished with imprisonment for a term which may extend to,
three years and shall also be liable to fine (section 498A). This Chapter [Chapter XX-A],
and the section have given a new dimension to the concept of cruelty for the purposes,
of matrimonial remedies and the type of conduct described in the section will be,
relevant for proving cruelty. Consequence of cruelty which was likely to drive a woman,
"to commit suicide or to cause grave injury or danger to life or limb or health, whether",
"mental or physical, have to be shown for attracting the section. Noorjahan v State,",
(2008) 11 SCC 55 [LNIND 2008 SC 950] . The basic ingredients of section 498A are,
"cruelty and harassment. Undavalli Narayana Rao v State of AP, (2009) 14 SCC 588",
[LNIND 2009 SC 1515] .,
Leading case:—Wazir Chand v State of Haryana.,
"This section has been introduced by Criminal Law (Amendment) Act, 1983 (Act 46 of",
1983) to combat the vice of dowry deaths. By the same Act section 113A has been,
"added to the Indian Evidence Act, 1872, which enables the Court to draw a presumption",
regarding abetment of suicide by a married woman if she commits suicide within seven,
years of her marriage and it is shown that her husband or relative had subjected her to,
cruelty. A mere demand for dowry is an offence.,
Illustrations on the meaning of harassment have been brought in from cases decided,
"under the [English] Protection From Harassment Act, 1997. The various types of",
conduct which may constitute cruelty has been judicially construed.,
Defamation. Chapter XXI.,
"A person is guilty of 'defamation' if he,",
"(1) by words, either (a) spoken, or (b) intended to be read; or",
(2) by signs or visible representations;,
(3) makes or publishes any imputation concerning any person;,
"(4) intending to harm, or knowing or having reason to believe that such imputation will",
"harm, the reputation of such person (section 499). [Two years simple, or fine, both",
(section 500).],
Defamation may be of a deceased person (Explanation 1). It may be concerning a,
"company, an association, or collection of persons (Explanation 2). It may be by ironical",
expressions. It is however necessary to show that this collection of persons is a small,
determinate body whose identity can be fixed. Advocates as a class cannot therefore,
be defamed.,
The fact of reference to a particular person may be proved by means of the technique,
"of ""innuendo"".",
Leading cases:—Manmohan Kalia v Yash. Asha Parekh v State of Bihar.,
"An imputation harms a person's reputation which, in the estimation of others, directly or",
"indirectly, either",
(1) lowers his moral or intellectual character; or,
"(2) lowers his character in respect of his caste or calling, or his credit; or",
"(3) causes it to be believed that his body is in a loathsome state, or in a state generally",
considered disgraceful (Explanation 4).,
The definition in the Code applies to words as well as writings.,
"The IPC, 1860, makes no distinction between spoken and written defamation.",
"The defamatory matter must be published, i.e., communicated to a person other than",
the one defamed. The person who makes the imputation intending to harm the,
"reputation of another, as well as the person who publishes it are alike guilty. The",
publisher need not be the maker of the defamatory matter.,
The publisher of a newspaper is responsible for defamatory matter appearing in the,
newspaper whether he knows it or not. But it will be a good justification to plead if such,
matter is published in his absence and without his knowledge and the temporary,
management of the paper was in competent hands. A newspaper published at one,
place and sent to a subscriber at another will be considered to have been published at,
the latter place.,
Exceptions.,
Any of the following defences may be set up against a charge of defamation:—,
1. Imputation of any truth which the public good requires to be made or published.,
2. Opinion expressed in good faith respecting the conduct of a public servant in the,
"discharge of his duties, or his character so far as it appears in that conduct.",
3. Opinion expressed in good faith respecting the conduct of any person touching a,
"public question, or his character so far as it appears in that conduct.",
4. Publication of a substantially true report of the proceedings of a court.,
"Such report cannot be published if the court has prohibited it, or where the subject-",
matter of the trial is obscene or blasphemous.,
5. Opinion expressed in good faith respecting the merits of a case decided in a court; or,
"the conduct of a party, witness or agent concerned therein; or the character of such",
person so far as it appears in such conduct.,
6. Opinion expressed in good faith respecting the merits of a performance submitted,
by the author to public judgment; or respecting the author's character so far as it,
appears in such a performance.,
7. Censure passed in good faith by a person having lawful authority over another.,
8. Accusation preferred in good faith to a duly authorized person.,
"9. Imputation made in good faith by a person for the protection of his interest, or of any",
"other person, or for the public good.",
"The privilege of judges, counsels, pleaders, witnesses, and parties comes under this",
"exception. So also, as to statements made in pleadings and reports to superior officers.",
JUDGE.—A Judge cannot be prosecuted for defamation for words used by him whilst,
"trying a case in court even though such words are alleged to be false, malicious, and",
without reasonable cause (Rama v Subramanya).,
COUNSEL OR PLEADER.—The Madras High Court held in Sullivan v Norton that no,
proceedings can be instituted against a counsel or pleader for uttering words that are,
"defamatory, or are calculated to hurt the feelings of others, or are absolutely devoid of",
all solid foundation. This case has been doubted in a much later decision in which it,
was held that in the case of a lawyer good faith is to be presumed until bad faith is,
proved by proof of private malice when the Court will interfere (Mir Anwarrudin v Fathim,
Bai).,
The Bombay High Court has held that so long as an advocate acts on his client's,
"instructions, he has the fullest liberty of speech provided that he did not know or could",
not know that they were false. (Bhaishankar v Wadia). Where express malice is absent,
the advocate or pleader is protected (Re Nagarji; Purshottamdas).,
The Calcutta High Court has held that advocates have no absolute privilege. But unless,
a counsel or pleader is actuated by improper motives he is protected. If bad faith is,
proved in putting questions to witnesses he is liable. There must be evidence that he,
was actuated by improper motives and not by a desire to further his client's interest.,
The Patna High Court has held that the privilege is not absolute but qualified and the,
burden is on the prosecution to prove absence of good faith.,
WITNESS.—The Bombay High Court has held in a Full Bench case that relevant,
statements made by a witness on oath or solemn affirmation in a judicial proceeding,
"are not absolutely privileged on a prosecution for defamation, but are governed by the",
provisions of this section (Bai Shanta v Umrao).,
The Calcutta High Court has laid down that such statements should be relevant to the,
inquiry (Woolfun Bibi v Jerasat Sheikh). If a witness voluntarily makes defamatory,
statements he will be guilty (Haider Ali v Abru Mia).,
The Madras High Court is of opinion that statements of a witness made in the witness-,
"box are absolutely privileged. If they are false the remedy is by indictment for perjury,",
and not for defamation (Manjaya v Shesha Shetti).,
The Allahabad High Court has held in a Full Bench case that a witness can be,
prosecuted for defamatory statements concerning a person unless he shows that the,
statements fall under one of the exceptions to this section (Ganga Prasad).,
The former Chief Court of the Punjab had adopted the view of the Calcutta and the,
Allahabad High Courts.,
"The former Nagpur High Court had followed the Bombay, the Calcutta and the",
Allahabad High Courts and held that a witness is not entitled to absolute privilege,
(Chotelal's case).,
PARTY.—The Bombay High Court has held that relevant statements made by an,
"accused are not absolutely protected, but are governed by the provisions of section",
499(Bai Shanta v Umrao).,
The Madras High Court has held that if an accused puts any question while defending,
"himself, the question cannot be made the subject of a prosecution for defamation",
(Hayes v Christian). Statement in answer to a question by the Court is not absolutely,
privileged (Tiruvengada Mudali's case). If a defamatory statement is made before an,
"officer who is neither a judicial officer nor a court, e.g., a Registration Officer, such a",
statement is not absolutely privileged. (Krishnammal's case).,
The Calcutta High Court has ruled in a Full Bench case that a defamatory statement on,
oath by a party falls within section 499 and is not absolutely privileged (Satish Chandra,
Chakravarti v Ram Doyal De).,
The Allahabad High Court holds the view that a suitor is not absolutely privileged.,
"PLEADING.—Defamatory statements in applications, pleadings and affidavits are not",
absolutely privileged.,
The Bombay High Court has held that statements made in a written statement filed by,
the accused are not absolutely privileged. According to the Allahabad High Court any,
statement made in an application in good faith is protected.,
The Calcutta and the Patna High Courts have held that defamatory statements in a,
plaint or an affidavit are not absolutely privileged. But the decisions of the Calcutta,
High Court are not unanimous on the point whether statements in a complaint to a,
Magistrate are absolutely privileged or not.,
The Madras High Court has in a Full Bench case held that a defamatory statement in a,
complaint to a Magistrate is not absolutely privileged. (Triuvengada Mudali's case).,
The former Chief Court of the Punjab had laid down that such statements were not,
absolutely privileged.,
10. Caution intended in good faith for the good of the person to whom it is conveyed or,
"of some person in whom he is interested, or for public good.",
Other offences.,
The following acts also are made punishable:—,
1. Printing or engraving matter known to be defamatory (section 501).,
2. Sale of printed or engraved substance containing defamatory matter (section 502).,
Criminal intimidation. Chapter XXII.,
A person commits 'criminal intimidation' if he,
(1) threatens another with any injury,
"(a) to his person, reputation or property, or",
"(b) to the person, or reputation of any one in whom that person is interested,",
(2) with intent,
"(a) to cause alarm to that person, or",
"(b) to cause that person to do any act which he is not legally bound to do, or omit to do",
"any act which that person is legally entitled to do,",
"(3) as the means of avoiding the execution of such threat (section 503). [Two years, or",
"fine, or both.]",
"If the threat be to cause (1) death or grievous hurt, (2) the destruction of any property",
"by fire, (3) an offence punishable with death, imprisonment for life, or seven years'",
"imprisonment, then seven years, or fine, or both (section 506). [If intimidation is caused",
"by an anonymous communication, then additional imprisonment for two years (section",
507).],
'Criminal intimidation' is closely analogous to 'extortion.' In the former the immediate,
"purpose is to induce the person threatened to do, or abstain from doing, something",
"which he was not legally bound to do or omit; in the latter, the purpose is getting filthy",
lucre by obtaining property. In 'criminal intimidation' the threat need not produce the,
effect aimed at nor should it be addressed directly to the person intended to be,
influenced. If it reaches his ears anyhow the offence is complete.,
The following two provisions relate to insult offered to persons other than public,
servants—,
Insult.,
"(1) Intentional insult with intent to provoke a breach of the peace, or to cause the",
commission of any offence. (section 504).,
"(2) Uttering any word, or making any sound or gesture, or exhibiting any object,",
intending to insult the modesty of a woman or intruding upon the privacy of a woman,
(section 509).,
Statement conducing to public mischief.,
"Making, publishing or circulating, any statement, rumour, or report",
"(1) with intent to cause any officer, soldier, sailor or airman in the Army, Navy or Air",
"Force, to mutiny, or to disregard or fail in his duty, or",
(2) with intent to cause fear or alarm to the public whereby any person may be induced,
"to commit an offence against the State or public tranquillity, or",
(3) with intent to incite any class of persons to commit any offence against any other,
"class is made punishable (section 505). [Three years, or fine, or both.] The offence is",
"not committed if such statement, etc., is true and there is no such intent as aforesaid.",
"Making, publishing or circulating, any statement or report containing alarming news",
"(1) with intent to create or promote feelings of enmity, hatred or ill will between",
"different groups or communities on grounds of religion, race, place of birth, residence,",
"language, caste or community (section 505). [Three years, or fine, or both.]",
(2) Aggravated form of the same offence when committed in any place of worship or in,
any assembly engaged in religious ceremonies (section 505). [Five years and fine.],
Divine displeasure.,
Act or omission caused by inducing a person to believe that he will be rendered an,
object of Divine displeasure if he does not do or omit to do the things which it is the,
"object of the offender to cause him to do or omit, is punishable (section 508). [One",
"year, or fine, or both.]",
Intoxication.,
Intoxication alone is not made punishable by the Code. But a person who in a state of,
"intoxication appears in any public place, or in any place which it is a trespass in him to",
"enter, and there conducts himself in such a manner as to cause annoyance to any",
"person is liable to punishment (section 510). [24 hours, or Rs. 10, or both.]",
Attempts. Chapter XXVIII.,
The last chapter deals with attempts to commit offences. Attempting to commit or,
"causing to be committed an offence, punishable by the Code with imprisonment for life",
"or imprisonment, and in such attempt doing any act towards the commission of the",
offence is—where there is no express provision for the punishment of such attempt—,
"punishable with imprisonment provided for the offence, for a term which may extend to",
one-half of the imprisonment for life or one-half of the longest term of imprisonment,
"provided for that offence, or with such fine as is provided for the offence, or with both",
(section 511).,
Every commission of a crime has three stages—,
(1) intention to commit it;,
(2) preparation for its commission; and,
(3) a successful attempt.,
"Mere intention to commit a crime, not followed by any act, does not constitute an",
offence. The will is not to be taken for the deed unless there be some external act,
which shows that progress has been made in the direction of it or towards maturing,
and effecting it.,
Preparation consists in devising means for the commission of an offence. The section,
does not punish acts done in the mere stage of preparation. Mere preparation is,
punishable only when the preparation is to wage war against the Government of India,
"(section 122), to commit depredations on the territories of any power at peace with the",
"Government of India (section 126), or to commit dacoity (section 399).",
Attempt is the direct movement towards the commission after the preparations are,
made. To constitute the offence of attempt there must be an act done with the,
"intention of committing an offence, and for the purpose of committing that offence,",
and it must be done in attempting the commission of the offence.,
"It is, however, not necessary to show that it is the last proximate act. It is enough if it is",
one in a series.,
An attempt can only be manifested by acts which would end in the consummation of,
"the offence, but for intervention of circumstances independent of the will of the party.",
An attempt is punishable even when the offence attempted cannot be committed; as,
when a person intending to pick another's pocket thrusts his hand into the pocket but,
finds it empty.,
"If the attempt to commit a crime is successful, then the crime itself is committed; but",
"where the attempt is not followed by the intended consequences, section 511 applies.",
Leading cases:—Abhayanand. Om Prakash. R v Ramsarun. R v Mac Crea. R v Mangesh. R,
v Peterson. R v Baku.,
"1. Stephen's History of Criminal Law of England, vol I.",
"2. Note Q, p 174.",
"3. Mrs. Sarah Mathew v The Institute of Cardio Vascular Diseases, (2014) 2 SCC 62 [LNIND 2013",
SC 997] .,
"4. Standard Chartered Bank v Directorate of Enforcement, (2005) 4 SCC 530 [LNIND 2005 SC",
"476] ; Iridium India Telecom Ltd v Motorola Incorporated, (2011) 1 SCC 74 [LNIND 2010 SC 1012]",
.,
"5. Abu Salem Abdul Qayoom Ansari v State of Maharashtra, (2011) 11 SCC 214 [LNIND 2010 SC",
858] .,
"6. Lee Kun Hee v State of UP, (2012) 3 SCC 132 [LNIND 2012 SC 89] ; Mobarik Ali v State of",
"Bombay, AIR 1957 SC 857 [LNIND 1957 SC 81] .",
"7. BK Wadeyar v Daulatram Rameshwarlal, AIR 1961 SC 311 [LNIND 1960 SC 493] .",
"8. M V Elisabeth v Harwan Investment and Trading, AIR 1993 SC 1014 [LNIND 1992 SC 194] .",
Indian Penal Code 1860,
Section 1. Title and extent of operation of the Code,
Act No. 45 of 1860.,
"This Act shall be called the Indian Penal Code, and shall [extend to the whole",
1,
of India [except the State of Jammu and Kashmir].],
2,
"1. The original words have successively been amended by Act 12 of 1891, sec. 2",
"and Sch. I, the A.O. 1937, the A.O. 1948 and the A.O. 1950 to read as above.",
"2. Subs. by Act 3 of 1951, sec. 3 and Sch., for “except Part B States”.",
Section 2. Punishment of offences committed within India,
Every person shall be liable punishment under this Code and not otherwise for,
"every act or omission contrary to the provisions thereof, of which, he shall be",
guilty within [India] [***].,
1 2,
1. The original words “the said territories” have successively been amended by,
"the A.O. 1937, the A.O. 1948, the A.O. 1950 and Act 3 of 1951, sec. 3 and Sch.,",
to read as above.,
"2. The words and figures “on or after the said first day of May, 1861” rep. by",
"Act 12 of 1891, sec. 2 and Sch. I.",
"Section 3. Punishment of offences committed beyond, but which by law may be tried",
"within, India",
"Any person liable, by any (Indian law) to be tried for an offence committed",
1,
beyond (India) shall be dealt with according to the provisions of this Code for,
2,
any act committed beyond (India) in the same manner as if such act had been,
2,
committed within [India].,
3,
1. Subs. by the A.O. 1937 for “law passed by the Governor General of India in,
Council”.,
2. The original words “the limits of the said territories” have successively been,
"amended by the A.O. 1937, the A.O. 1948, the A.O. 1950 and Act 3 of 1951, sec.",
"3 and Sch., to read as above.",
3. The original words “the said territories” have successively been amended by,
"the A.O. 1937, the A.O. 1948, the A.O. 1950 and Act 3 of 1951, sec. 3 and Sch.,",
to read as above.,
Section 4. Extension of Code to extra-territorial offences,
[4. Extension of Code to extra-territorial offences.,
1,
The provisions of this Code apply also to any offence committed by,
[(1) Any citizen of India in any place without and beyond India;,
2,
(2) Any person on any ship or aircraft registered in India wherever it may be.],
Explanation. -In this section the word “offence” includes every act committed,
"outside [India] which, If committed in [India], would be punishable under",
3 3,
this code.,
4[Illustration],
"[*** A, [who is [a citizen of India]], commits a murder in Uganda. He can be",
5 6 7,
tried and convicted of murder in any place in 3[India] in which he may be,
found.,
[* * *],
8,
"1 Subs. by Act 4 of 1898, sec. 2, for the original section.",
"2 Subs. by the A.O. 1950, for clauses (1) to (4).",
"3 The words “British India” have been successively amended by the A.O. 1948,",
"the A.O. 1950 and Act 3 of 1951, sec. 3 and Sch. to read as above.",
"4 Subs. by Act 36 of 1957, sec. 3 and Sch. II, for “Illustrations” (w.e.f. 17-9-",
1957).,
"5 The brackets and letter “(a)” omitted by Act 36 of 1957, sec. 3 and Sch. II",
(w.e.f. 17-9-1957).,
"6 Subs. by the A.O. 1948, for “a coolie, who is a Native Indian subject”.",
"7 Subs. by the A.O. 1950, for “a British subject of Indian domicile”.",
"8 Illustrations (b), (c) and (d) omitted by the A.O. 1950.",
Section 5. Certain laws not to be affected by this Act,
5. Certain laws not to be affected by this Act.- Nothing in this Act shall affect,
1,
"the provisions of any Act for punishing mutiny and desertion of officers,",
"soldiers, sailors or airmen in the service of the Government of India or the",
provisions of any special or local law.,
"1. Subs. by the A.O. 1950, for the original section.",
Section 6. Definitions in the Code to be understood subject to exceptions,
"Throughout this Code every definition of an offence, every penal provision,",
and every illustration of every such definition or penal provision shall be,
understood subject to the exceptions contained in the Chapter entitled,
"“General Exceptions”, though those exceptions are not repeated in such",
"definition, penal provision, or illustration.",
Illustrations,
"(a) The sections, in this Code, which contain definitions of offences, do not",
express that a child under seven years of age can not commit such offences;,
but the definitions are to be understood subject to the general exception which,
provides that nothing shall be an offence which is done by a child under seven,
years of age.,
"(b) A, a police officer, without warrant, apprehends Z, who has committed",
murder. Here A is not guilty of the offence of wrongful confinement for he was,
bound by law to apprehend Z and therefore the case falls within the general,
exception which provides that “nothing is an offence which is done by a person,
who is bound by law to do it”.,
Section 7. Sense of expression once explained,
"Every expression, which is explained in any part of this Code, is used in every",
part of this Code in conformity with the explanation.,
Section 8. Gender,
"The pronoun “he” and its derivatives are used of any person, whether male or",
female.,
Section 9. Number,
"Unless the contrary appears from the context, words importing the singular",
"number include the plural number, and words importing the plural number",
include the singular number.,
"Section 10. Man, Woman",
The word “man” denotes a male human being of any age; the word “woman”,
denotes a female human being of any age.,
Section 11. Person,
"The word “person” includes any Company or Association or body of persons,",
whether incorporated or not.,
Section 12. Public,
The word “public” includes any class of the public or any community.,
Section 13. Queen,
[Definition of “Queen”.] Rep. by the A. O. 1950.,
Section 14. Servant of Government,
14. “Servant of Government”.- The words “servant of Government” denote any,
1,
"officer or servant continued, appointed or employed in India by or under the",
authority of Government.,
"1. Subs. by the A.O. 1950, for the original section.",
Section 15. British India,
[Definition of “British India”.] Rep. by the A. O. 1937.,
Section 16. Government of India,
Rep. By the A.O. 1937.,
Section 17. Government,
17. “Government”.- The word “Government” denotes the Central Government,
1,
or the Government of a [***] State.,
2,
"1. Subs. by the A.O. 1950, for the original section.",
"2. The word and letter “Part A” omitted by Act 3 of 1951, sec. 3 and Sch.",
Section 18. India,
18. India.- “India” means the territory of India excluding the State of Jammu,
1,
and Kashmir.,
"1 Subs. by Act 3 of 1951, sec. 3 and Sch., for the former section which was ins.",
by the A.O. 1950. The original section 18 was rep. by the A.O. 1937.,
Section 19. Judge,
“Judge”.–The word “Judge” denotes not only every person who is officially,
"designated as a Judge, but also every person who is empowered by law to give,",
"in any legal proceeding, civil or criminal, a definitive judgment, or a judgment",
"which, if not appealed against, would be definitive, or a judgment which, if",
"confirmed by some other authority, would be definitive, or",
"who is one of a body of persons, which body of persons is empowered by law",
to give such a judgment.,
Illustrations,
"(a) A Collector exercising jurisdiction in a suit under Act 10 of 1859, is a judge.",
(b) A Magistrate exercising jurisdiction in respect of a charge on which he has,
"power to sentence to fine or imprisonment, with or without appeal, is a judge.",
"(c) A member of a Panchayat which has power, under Regulation VII, 1816, of",
1,
"the Madras Code, to try and determine suits, is a judge.",
(d) A Magistrate exercising jurisdiction in respect of a charge on which he has,
"power only to commit for trial to another Court, is not a judge.",
–,
"1. Rep. by the Madras Civil Courts Act, 1873 (3 of 1873).",
Section 20. Court of Justice,
The words “Court of Justice” denote a judge who is empowered by law to act,
"judicially alone, or a body of judges, which is empowered by law to act",
"judicially as a body, when such judge or body of judges is acting judicially",
Illustration,
"A panchayat acting under Regulation VII, 1816, of the Madras Code, having",
1,
"power to try and determine suits, is a Court of Justice.",
–,
"1. Rep. by the Madras Civil Courts Act, 1873 (3 of 1873).",
Section 21. Public Servant,
The words “public servant” denote a person falling under any of the,
descriptions hereinafter following namely:-,
[* ****],
1,
"Second.- Every Commissioned Officer in the Military, [Naval or Air]",
2,
Forces [ [* * *] of India];,
3 4,
"[Third.- Every Judge including any person empowered by law to discharge,",
5,
"whether by himself or as a member of any body of persons, any adjudicatory",
function;],
"Fourth.- Every officer of a Court of justice [(including a liquidator, receiver or",
6,
"commissioner)] whose duty it s, as such officer, to investigate or report on any",
"matter of law or fact, or to make, authenticate, or keep any document, or to",
"take charge or dispose of any property, or to execute any judicial process, or to",
"administer any oath, or to interpret, or to preserve order in the Court, and",
every person specially authorized by a Court of Justice to perform any of such,
duties.,
"Fifth.- Every juryman, assessor, or member of a panchayat assisting a Court of",
justice or public servant;,
Sixth.- Every arbitrator or other person to whom any cause or matter has been,
"referred for decision or report by any Court of justice, or by any other",
competent public authority;,
Seventh.- Every person who holds any office by virtue of which he is,
empowered to place or keep any person in confinement;,
"Eight. -Every officer of [the Government] whose duty it is, as such officer, to",
7,
"prevent offences, to give information of offences, to bring offenders to justice,",
"or to protect the public health, safety or convenience;",
"Ninth.- Every officer whose duty it is, as such officer, to take, receive, keep or",
"extend any property on behalf of [the Government], or to make any survey,",
7,
"assessment or contract on behalf of the [the Government], or to execute any",
7,
"revenue process, or to investigate, or to report, on any matter affecting the",
"pecuniary interests of [the Government], or to make, authenticate or keep any",
7,
"document relating to the pecuniary interests of [the Government], or to",
7,
prevent the infraction of any law for the protection of the pecuniary interests,
of [the Government] [***];.,
7 8,
"Tenth. – Every officer whose duty it is, as such officer, to take, receive, keep or",
"expend any property, to make any survey or assessment or to levy any rate or",
"tax for any secular common purpose of any village, town or district, or to",
"make, authenticate or keep any document for the ascertaining of the rights of",
"the people of any village, town or district;",
[Eleventh.- Every persons who holds any office in virtue of which he is,
9,
"empowered to prepare, publish maintain or revise an electoral roll or to",
conduct an election or part of an election; ],
[twelfth.- Every person.,
10,
(a) In the service or pay of the Government or remunerated by fees or,
commission for the performance of any public duty by the Government;,
"(b) In the service or pay of a local authority, a corporation established by or",
"under a Central, Provincial or State Act or a Government company as defined",
"in section 617 of the Companies Act, 1956 (1 of 1956.]",
Illustration,
A Municipal Commissioner is a public servant.,
Explanation 1,
"Persons falling under any of the above descriptions are public servants,",
whether appointed by the Government or not.,
Explanation 2,
"Wherever the words “public servant” occur, they shall be understood of every",
"person who is in actual possession of the situation of a public servant,",
whatever legal defect there may be in his right to hold that situation.,
Explanation 3,
11,
The word “election” denotes an election for the purpose of selecting members,
"of any legislative, municipal or other public authority, of whatever character,",
"the method of selection to which is by, or under, any law prescribed as by",
election.,
[***],
12,
STATE AMENDMENT,
State of Rajasthan,
"In Section 21 of the Indian Penal Code, 1860 (Central Act 45 of 1860), in its",
"application to the State of Rajasthan, after clause twelfth, the following new",
clause shall be added namely: –,
“Thirteenth.- Every person employed or engaged by any public body in the,
conduct and supervision of any examination recognized or approved under,
any law.,
Explanation,
The expression ‘Public Body’ includes:-,
"(a) A University, Board of Education, or other body, either established by or",
under a Central or State Act or under the provisions of the Constitution of,
India or constituted by the Government; and,
(b) A local authority.”,
"[Vide Rajasthan Act, 1993 4 of 1993, Sec. 2 (w.e.f. 11-2-1993)].",
1. Clause First omitted by the A.O. 1950.,
"2. Subs. by Act 10 of 1927, sec. 2 and Sch. I, for “or Naval”.",
3. The original words “of the Queen while serving under the Government of,
"India, or any Government” have successively been amended by the A.O. 1937,",
the A.O. 1948 and the A.O. 1950 to read as above.,
4. The words “of the Dominion” omitted by the A.O. 1950.,
"5. Subs. by Act 40 of 1964, sec. 2, for the former clause (w.e.f. 18-12-1964).",
"6. Ins. by Act 40 of 1964, sec. 2 (w.e.f. 18-12-1964).",
"7. Subs. by the A.O. 1950, for “the Crown” which had been subs. by the A.O.",
"1937, for “Government”.",
"8. Certain words omitted by Act 40 of 1964, sec. 2 (w.e.f. 18-12-1964).",
"9. Ins. by Act 39 of 1920, sec. 2.",
"10. Subs. by Act 40 of 1964, sec. 2, for the former clause (w.e.f. 18-12-1964).",
"11. Ins. by Act 39 of 1920, sec. 2.",
"12. Explanation 4 ins. by Act 2 of 1958, sec. 2 (w.e.f. 12-2-1958) and omitted by",
"Act 40 of 1964, sec. 2 (w.e.f. 18-12-1964).",
Section 22. Moveable property,
The words “moveable property” are intended to include corporeal property of,
"every description, except land and things attached to the earth or permanently",
"fastened to anything, which is attached to the earth.",
Section 23. Wrongful gain,
23. “Wrongful gain”.–“Wrongful gain” is gain by unlawful meansof property to,
which the person gaining is not legally entitled.,
“Wrongful loss”.–“Wrongful loss” is the loss by unlawful meansof property to,
which the person losing it is legally entitled. Gaining wrongfully.,
Losing wrongfully.–A person is said to gainwrongfully when such person,
"retains wrongfully, as well as when suchperson acquires wrongfully.",
A person is said to lose wrongfully whensuch person is wrongfully kept out of,
"any property, as well as whensuch person is wrongfully deprived of property.",
Section 24. Dishonestly,
Whoever does anything with the intention of causing wrongful gain to one,
"person or wrongful loss to another person, is said to do that thing",
“dishonestly”.,
Section 25. Fraudulently,
A person is said to do a thing fraudulently if he does that thing with intent to,
defraud but not otherwise.,
Section 26. Reason to believe,
"A person is said to have “reason to believe” a thing, if he has sufficient cause to",
believe that thing but not otherwise.,
"Section 27. Property in possession of wife, clerk or servant",
"When property is in the possession of a person’s wife, clerk or servant, on",
"account of that person, it is in that person’s possession within the meaning of",
this Code.,
Explanation,
A person employed temporarily or on a particular occasion in the capacity of a,
"clerk or servant, is a clerk or servant within the meaning of this section.",
Section 28. Counterfeit,
A person is said to “counterfeit” who causes one thing to resemble another,
"thing, intending by means of that resemblance to practice deception, or",
knowing it to be likely that deception will thereby be practiced.,
Explanation 1,
1,
It is not essential to counterfeiting that the imitation should be exact.,
Explanation 2,
"When a person causes one thing to resemble another thing, and the",
"resemblance is such that a person might be deceived thereby, it shall be",
"presumed, until the contrary is proved, that the person so causing the one",
thing to resemble the other thing intended by means of that resemblance to,
practice deception or knew it to be likely that deception would thereby be,
practiced.,
"1. Subs. by Act 1 of 1889, sec. 9, for the original Explanation.",
Section 29. Document,
The word “document” denotes any matter expressed or described upon any,
"substance by means of letters, figures, or marks, or by more than one of those",
"means, intended to be used, or which may be used, as evidence of that matter.",
Explanation 1,
"It is immaterial by what means or upon what substance the letters, figures or",
"marks are formed, or whether the evidence is intended for, or may be used in,",
"a Court of Justice, or not.",
Illustrations,
"A writing expressing the terms of a contract, which may be used as evidence of",
"the contract, is a document.",
A cheque upon a banker is a document.,
A power-of-attorney is a document.,
"A map or plan which is intended to be used or which may be used as evidence,",
is a document.,
A writing containing directions or instructions is a document.,
Explanation 2,
"Whatever is expressed by means of letters, figures or marks as explained by",
"mercantile or other usage, shall be deemed to be expressed by such letters,",
"figures or marks within the meaning of this section, although the same may",
not be actually expressed.,
Illustration,
A writes his name on the back of a bill of exchange payable to his order. The,
"meaning of the endorsement, as explained by mercantile usage, is that the bill",
"is to be paid to the holder. The endorsement is a document, and must be",
construed in the same manner as if the words “pay to the holder” or words to,
that effect had been written over the signature.,
Section 29A. Electronic record,
29A. Electronic record.- The words “electronic record” shall have the meaning,
1,
assigned to them in clause (t) of sub-section (1) of section 2 of the Information,
"Technology Act, 2000.",
"1. Ins. by Act 21 of 2000, sec. 91 and Sch. I, (w.e.f. 17-10-2000).",
Section 30. Valuable security,
"The words “valuable security” denote a document which is, or purports to be, a",
"document whereby any legal right is created, extended, transferred, restricted,",
"extinguished or released, or where by any person acknowledges that he lies",
"under legal liability, or has not a certain legal right.",
Illustration,
A writes his name on the back of a bill of exchange. As the effect of this,
endorsement is transfer the right to the bill to any person who may become,
"the lawful holder of it, the endorsement is a “valuable security”.",
Section 31. A will,
The words “a will” denote any testamentary document.,
Section 32. Words referring to acts include illegal omissions,
"In every part of this Code, except where a contrary intention appears from the",
"context, words which refer to acts done extend also to illegal omissions.",
Section 33. Act Omission,
The word “act” denotes as well a series of acts as a single act: the word,
“omission” denotes as well as series of omissions as a single omission.,
Section 34. Acts done by several persons in furtherance of common intention,
34. Acts done by several persons in furtherance of common intention.- When,
1,
a criminal act is done by several persons in furtherance of the common,
"intention of all, each of such persons is liable for that act in the same manner",
as if it were done by him alone.,
Distinction between ’common intention’ and ‘common object’,
A clear distinction is made out between common intention and common,
object is that common intention denotes action in concert and necessarily,
postulates the existence of a pre-arranged plan implying a prior meeting of the,
"minds, while common object does not necessarily require proof of prior",
meeting of minds or pre-concert. Though there is a substantial difference,
"between the two sections namely 34 and 149, they also to some extent overlap",
and it is a question to be determined on the facts of each case; Chittarmal v.,
"State of Rajasthan, AIR 2003 SC 796.",
Difference in operation of section 34 and section 149,
(i) Both sections 149 and 34 deal with a combination of persons who become,
liable to be punished as sharers in the commission of offences. The non-,
"applicability of section is, therefore, no bar in convicting the accused under",
substantive section read with section 34 if the evidence discloses commission,
of an offence in furtherance of the common intention of them all; Nethala,
"Pothuraju v. State of Andhra Pradesh, (1991) Cr LJ 3133 (SC).",
(ii) In order to convict a person vicariously liable under section 34 or section,
149 it is not necessary to prove that each and everyone of them had indulged,
"in overts acts; Ram Blias Singh v. State of Bihar, (1989) Cr LJ 1782: AIR 1989",
SC 1593.,
Ingredients,
"(i) When an offence is sought to be proved only on circumstantial evidence,",
the allegations of common intention under section 34 normally cannot be,
"established in absence of meeting of mind, the overt act of the accused, by",
"their conduct, by using the weapons by their utterance of words; Santosh",
"Desai v. State of Goa, (1997) 2 Crimes 666 (Bom).",
(ii) In order to bring a case under section 34 it is not necessary that there must,
"be a prior conspiracy or pre-meditation, the common intention can be formed",
"in the course of occurrence; Hari Om v. State of Uttar Pradesh, (1993) 1",
Crimes 294 (SC).,
(iii) Mere surrender by appellant alongwith accused before police does not,
show meeting of minds as to bring the case within ambit of section 34;,
"Rangaswami v. State of Tamil Nadu, (1989) Cr LJ 875: AIR 1989 SC 1137.",
(iv) It has been held that the requirement of statute is sharing the common,
intention upon being present at the place of occurrence. Mere distancing from,
"the scene cannot absolve the accused; Lallan Bhai v. State of Bihar, AIR 2003",
SC 333.,
Participation in the Criminal Act,
"(i) To apply section 34, apart from the fact that there should be two or more",
"accused, two factors must be established: (i) common intention, and (ii)",
participation of accused in the commission of an offence. If common intention,
"is proved but no overt act is attributed to the individual accused, section 34",
will be attracted as essentially it involves vicarious liability but if participation,
"of the accused in the crime is proved and common intention is absent, section",
"34 cannot be invoked; Jai Bhagwan v. State of Haryana, AIR 1999 SC 1083.",
(ii) It requires a pre-arranged plan and pre-supposes prior concert therefore,
there must be prior meeting of mind. It can also be developed at the spur of,
moment but there must be pre-arrangement or premeditated concert:,
"Ramashish Yadav v. State of Bihar, 1999 (8) SCC 555: 1999(6) JT 560: 1999",
(2) JCC (SC) 471.,
(iii) If some act is done by the accused person in furtherance of common,
"intention of his co-accused, he is equally liable like his co-accused; State of",
"Punjab v. Fauja Singh, (1997) 3 Crimes 170 (P&H).",
"(iv) In the instant case, there was a long standing enmity between two rival",
"factions in a village, and proceedings under the Criminal Procedure Code were",
pending against members of both factions. On the day fixed for a hearing in,
"the Magistrate’s Court in a neighbouring town, members of both factions left",
their village armed with sticks and lathis. While one faction was waiting on the,
"roadside for a bus, the other faction arrived and a fight ensued in which severe",
"injuries were caused on both sides, as a result of which one man died. The",
members of the opposite faction were charged and convicted under sections,
302/34 I.P.C. It was held that the mere presence of a person armed with a,
deadly weapon at the spot of a crime does not necessarily make him a,
"participator in a joint crime in every case, because for the purpose of section",
34 only such presence makes a man a participant in a joint crime as is,
established to be with the intention of lending weight to the commission of a,
"joint crime; Jamun v. State of Punjab, AIR 1957 SC 469.",
–,
"1. Subs. by Act 27 of 1870, sec. 1, for the original section.>",
Section 35. When such an act is criminal by reason of its being done with a criminal,
knowledge or intention,
"Whenever an act, which is criminal only be reason of its being done with a",
"criminal knowledge or intention, is done by several persons, each of such",
persons who joins in the act with such knowledge or intention is liable for the,
act in the same manner as if the act were done by him alone with that,
knowledge or intention.,
Section 36. Effect caused partly by act and partly by omission,
"Wherever the causing of a certain effect, or an attempt to cause that effect, by",
"an act or by an omission, is an offence, it is to be understood that the causing",
of that effect partly by an act and partly by an omission is the same offence.,
Illustration,
"A intentionally causes Z’s death, partly by illegally omitting to give Z food, and",
partly by beating Z. A has committed murder.,
Section 37. Co-operation by doing one of several acts constituting an offence,
"When an offence is committed by means of several acts, whoever intentionally",
"co-operates in the commission of that offence by doing any one of those acts,",
either singly or jointly with any other person commits that offence.,
Illustrations,
(a) A and B agree to murder Z by severally and at different times giving him,
small doses of poison. A and B administer the poison according to the,
agreement with intent to murder Z. Z dies from the effects of the several doses,
of poison so administered to him. Here A and B intentionally co-operates in,
the commission of murder and as each of them does an act by which the death,
"is caused, they are both guilty of the offence though their acts are separate.",
"(b) A and B are joint jailors, and as such have the charge of Z, a prisoner,",
"alternately for six hours at a time. A and B, intending to cause Z’s death,",
"knowingly co-operate in causing that effect by illegally omitting, each during",
"the time of his attendance, to furnish Z with food supplied to them for that",
purpose. Z dies of hunger. Both A and B are guilty of the murder of Z.,
"(c) A, a jailor, has the charge of Z, a prisoner. A, intending to cause Z’s death",
illegally omits to supply Z with food in consequence of which Z is much,
"reduced in strength, but the starvation is not sufficient to cause his death. A is",
"dismissed from his office, and B succeeds him. B, without collusion or co-",
"operation with A, illegally omits to supply Z with food, knowing that he is",
"likely thereby to cause Z’s death. Z dies of hunger. B is guilty of murder, but, as",
A did not co-operate with B. A is guilty only of an attempt to commit murder.,
Section 38. Persons concerned in criminal act may be guilty of different offences,
Where several persons are engaged or concerned in the commission of a,
"criminal act, they may be guilty of different offences by means of that act.",
Illustration,
A attacks Z under such circumstances of grave provocation that his killing of Z,
"would be only culpable homicide not amounting to murder. B, having ill-will",
"towards Z and intending to kill him, and not having been subject to the",
"provocation, assists A in killing Z. Here, though A and B are both engaged in",
"causing Z’s death, B is guilty of murder, and A is guilty only of culpable",
homicide.,
Section 39. Voluntarily,
A person is said to cause an effect “voluntarily” when he causes it by means,
"whereby he intended to cause it, or by means which, at the time of employing",
"those means, he knew or had reason to believe to be likely to cause it.",
Illustration,
"A sets fire, by night, to an inhabited house in a large town, for the purpose of",
"facilitating a robbery and thus causes the death of a person. Here, A may not",
have intended to cause death; and may even be sorry that death has been,
"caused by his act; yet, if he knew that he was likely to cause death, he has",
caused death voluntarily.,
Section 40. Offence,
40 “Offence”.- Except in the [Chapters] and sections mentioned in clauses 2,
1 2,
"and 3 of this section, the word “offence” denotes a thing made punishable by",
this code.,
"In Chapter IV, [Chapter V A] and in the following sections, namely",
3,
"Sections [64, 65, 66, [67], 71], 109, 110, 112, 114, 115, 116, 117, 187, 194, 195,",
4 5,
"203, 211, 213, 214, 221, 222, 223, 224, 225, 327, 328, 329, 330, 331, 347, 348,",
"388, 389 and 445, the words “offence” denotes a thing punishable under this",
"Code, or under any special or local law as hereinafter defined.",
"And in Sections 141, 176, 177, 201, 202, 212, 216 and 441, the word “offence”",
has the same meaning when the thing punishable under the special or local,
law is punishable under such law with imprisonment for a term of six months,
"or upwards, whether with or without fine.",
"1. Subs. by Act 27 of 1870, sec. 1, for the original section.",
"2. Subs. by Act 8 of 1930, sec. 2 and Sch. I, for “Chapter”.",
"3. Ins. by Act 8 of 1913, sec. 2.",
"4. Ins. by Act 8 of 1882, sec. 1.",
"5. Ins. by Act 10 of 1886, sec. 21(1).",
Section 41. Special law,
A “special law” is a law applicable to a particular subject.,
Section 42. Local law,
A “local law” is a law applicable only to a particular part of [ [***] [India]].,
1 2 3,
–,
"1. Subs. by the A.O. 1948, for “British India”.",
"2. The words “the territories comprised in” omitted by Act 48 of 1952, sec. 3",
and Sch. II (w.e.f. 2-8-1952).,
"3. Subs. by Act 3 of 1951, sec. 3 and Sch., for “the States” which had been subs.",
"by the A.O. 1950, for “the Provinces”.",
"Section 43. Illegal, Legally bound to do",
The word “illegal” is applicable to everything which is an offence or which is,
"prohibited by law, or which furnishes ground for a civil action; and a person is",
said to be “legally bound to do” whatever it is illegal in him to omit.,
Section 44. Injury,
"The word “injury” denotes any harm whatever illegally caused to any person,",
"in body, mind, reputation or property.",
Section 45. Life,
"The word “life” denotes the life of a human being, unless the contrary appears",
from the context.,
Section 46. Death,
The word “death” denotes the death of a human being unless the contrary,
appears from the context.,
Section 47. Animal,
"The word “animal” denotes any living creature, other than a human being.",
Section 48. Vessel,
The word “vessel” denotes anything made for the conveyance by water of,
human beings or of property.,
"Section 49. Year, Month",
"Wherever the word “year” or the word “month” is used, it is to be understood",
that the year or the month is to be reckoned according to the British calendar.,
Section 50. Section,
The word “section” denotes one of those portions of a chapter of this Code,
which are distinguished by prefixed numeral figures.,
Section 51. Oath,
"The word “oath” includes a solemn affirmation substituted by law for an oath,",
and any declaration required or authorized by law to be made before a public,
"servant or to be used for the purpose of proof, whether in a Court of Justice or",
not.,
Section 52. Good faith,
Nothing is said to be done or believed in “good faith” which is done or believed,
without due care and attention.,
Section 52A. Harbour,
"52A “Harbour”.- Except in Section 157, and in Section 130 in the case in",
1,
"which the harbour is given by the wife or husband of the person harboured,",
"the word “harbour” includes the supplying a person with shelter, food, drink,",
"money, clothes, arms, ammunition or means of conveyance, or the assisting a",
"person by any means, whether of the same kind as those enumerated in this",
"section or not, to evade apprehension.",
"1. Ins. by Act 8 of 1942, sec. 2 (w.e.f. 14-2-1942).",
Section 53. Punishment,
The punishments to which offenders are liable under the provisions of this,
Code are,
First.— Death;,
[Secondly.—Imprisonment for life;],
1,
[***],
2,
"Fourthly. —Imprisonment, which is of two descriptions, namely:",
"(1) Rigorous, that is, with hard labour;",
(2) Simple;,
Fifthly. —Forfeiture of property;,
Sixthly. —Fine.,
Reformative theory,
(i) The reformative approach to punishment should be the object of criminal,
"law, in order to promote rehabilitation without offending communal",
"conscience and to secure social justice; Narotam Singh v. State of Punjab, AIR",
1978 SC 1542.,
"(ii) The punishment till the rising of the Court, for the offence of grievous hurt",
"and related offences, committed conjointly on a group by an accused person",
"which had resulted in the hospitalisation of victim for four weeks, did not",
"conform to any rational legal theory of behaviour, much less the reformatory",
"theory of punishment; Raman v. Francis, (1988) Cr LJ 1359 (Ker).",
"1. Subs. by Act 26 of 1955, sec. 117 and Sch., for “Secondly—Transportation”",
(w.e.f. 1-1-1956).,
"2. Clause “Thirdly” omitted by Act 17 of 1949, sec. 2 (w.e.f. 6-4-1949).",
Section 53A. Construction of reference to transportation,
53A. Construction of reference to transportation.- (1) Subject to the,
1,
"provisions of sub-section (2) and sub-section (3), any reference to",
“transportation for life” in any other law for the time being in force or in any,
instrument or order having effect by virtue of any such law or of any,
enactment repealed shall be construed as a reference to “imprisonment for,
life”.,
(2) In every case in which a sentence of transportation for a term has been,
passed before the commencement of the Code of Criminal Procedure,
"(Amendment) Act, [1955] (26 of 1955), the offender shall be dealt with in the",
2,
same manner as if sentenced to rigorous imprisonment for the same term.,
(3) Any reference to transportation for a term or to transportation for any,
shorter term (by whatever name called) in any other law for the time being in,
force shall be deemed to have been omitted.,
(4) Any reference to “transportation” in any other law for the time being in,
"force shall,-",
"(a) If the expression means transportation for life, be construed as a reference",
to imprisonment for life;,
"(b) If the expression means transportation for any shorter term, be deemed to",
have been omitted.,
"1. Ins. by Act 26 of 1955, sec. 117 and Sch. (w.e.f. 1-1-1956).",
"2. Subs. by Act 36 of 1957, sec. 3 and Sch. II, for “1954” (w.e.f. 17-9-1957).",
Section 54. Commutation of sentence of death,
"In every case in which sentence of death shall have been passed, [the",
1,
"appropriate Government] may, without the consent of the offender, commute",
the punishment for any other punishment provided by this code.,
"1. Subs. by the A.O. 1950, for “the Central Government or the Provincial",
Government of the Province within which the offender shall have been,
"sentenced”. The words in italics were subs. by the A.O. 1937, for “the",
Government of India or the Government of the place”.,
Section 55. Commutation of sentence of imprisonment for life,
In every case in which sentence of [imprisonment] for life shall have been,
1,
"passed, [the appropriate Government] may, without the consent of the",
2,
"offender, commute the punishment for imprisonment of either description for",
a term not exceeding fourteen years.,
–,
"1. Subs. by Act 26 of 1955, sec. 117 and Sch., for “transportation” (w.e.f. 1-1-",
1956).,
"2. Subs. by the A.O. 1950, for “the Provincial Government of the Province",
within which the offender shall have been sentenced”. The words in italics,
"were subs. by the A.O. 1937, for “the Government of India or the Government",
of the place”.,
Section 55A. Definition of appropriate Government,
55A. Definition of “appropriate Government”.- In sections fifty-four and fifty-,
1,
"five the expression “appropriate Government” means, –",
(a) In case where the sentence is a sentence of death or is for an offence,
against any law relating to a matter to which the executive power of the Union,
"extends, the Central Government; and",
(b) In case where the sentence (whether of death or not) is for an offence,
against any law relating to a matter to which the executive power of the State,
"extends, the Government of the State within which the offender is sentenced.",
"1. Subs. by the A.O. 1950, for section 55A which had been ins. by the A.O.",
1937.,
Section 56. Sentence of Europeans and Americans to penal servitude.,
Proviso as to sentence for term exceeding ten years but not for life,
"[Rep. by the Criminal Law (Removal of Racial Discriminations) Act, 1949 (17 of 1949) (w.e.f. 6-4-1949).]",
Section 57. Fractions of terms of punishment,
"In calculating fractions of terms of punishment, [imprisonment] for life shall",
1,
be reckoned as equivalent to [imprisonment] for twenty years.,
1,
"1. Subs. by Act 26 of 1955, sec. 117 and Sch., for “transportation” (w.e.f. 1-1-",
1956).,
Section 58. Offenders sentenced to transportation how dealt with until transported,
"[Rep. by the Code of Criminal Procedure (Amendment) Act, 1955 (26 of 1955), see. 117and Sch. (w.e.f. 1-1-",
1956).,
Section 59. Transportation instead of imprisonment.,
"[Rep. by the Code of Criminal procedure(Amendment) Act, 1955(26 0f 1955), s.117 and Sch.. (w.e.f.",
1.1.1956).],
Section 60. Sentence may be (in certain cases of imprisonment) wholly or partly rigorous,
or simple,
In every case in which an offender is punishable with imprisonment which,
"may be of either description, it shall be competent to the Court which",
sentences such offender to direct in the sentence that such imprisonment shall,
"be wholly rigorous, or that such imprisonment shall be wholly simple, or that",
any part of such imprisonment shall be rigorous and the rest simple,
Section 61. Sentence of forfeiture of property,
"[Rep. by the Indian Penal Code (Amendment) Act, 1921 (16 of 1921), sec. 4.]",
"Section 62. Forfeiture of property, in respect of offenders punishable with death,",
transportation or imprisonment,
"Rep. by the Indian Penal Code (Amendment) Act, 1921 (16of 1921), sec. 4.",
Section 63. Amount of fine,
"Where no sum is expressed to which a fine may extend, the amount of fine to",
"which the offender is liable is unlimited, but shall not be excessive.",
Section 64. Sentence of imprisonment for non-payment of fine,
"[In every case, of an offence punishable with imprisonment as well as fine, in",
1,
"which the offender is sentenced to a fine, whether with or without",
"imprisonment,",
"and in every case of an offence punishable [with imprisonment or fine, or]",
2,
"with fine only, in which the offender is sentenced to a fine,]",
it shall be competent to the Court which sentences such offender to direct by,
"the sentence that, in default of payment of the fine, the offender shall suffer",
"imprisonment for a certain term, in which imprisonment shall be in excess of",
any other imprisonment to which he may have been sentenced or to which he,
may be liable under a commutation of a sentence.,
–,
"1. Subs. by Act 8 of 1882, sec. 2, for “In every case in which an offender is",
sentenced to a fine”.,
"2. Ins. by Act 10 of 1886, sec. 21(2).",
"Section 65. Limit to imprisonment for non-payment of fine, when imprisonment and fine",
awardable,
The term for which the Court directs the offender to be imprisoned in default,
of payment of a fine shall not exceed one-fourth of the term of imprisonment,
"which is the maximum fixed for the offence, if the offence be punishable with",
imprisonment as well as fine.,
Section 66. Description of imprisonment for non-payment of fine,
The imprisonment which the Court imposes in default of payment of a fine,
may be of any description to which the offender might have been sentenced,
for the offence.,
Section 67. Imprisonment for non-payment of fine when offence punishable with fine,
only,
"If the offence be punishable with fine only, [the imprisonment which the",
1,
"Court imposes in default of payment of the fine shall be simple, and] the term",
"for which the Court directs the offender to be imprisoned, in default of",
"payment of fine, shall not exceed the following scale, that is to say, for any",
terms not exceeding two months when the amount of the fine shall not exceed,
"fifty rupees, and for any terms not exceeding four months when the amount",
"shall not exceed one hundred rupees, and for any term not exceeding six",
months in any other case.,
–,
"1. Ins. by Act 8 of 1882, sec. 3.",
Section 68. Imprisonment to terminate on payment of fine,
The imprisonment which is imposed in default of payment of a fine shall,
terminate when ever that fine is either paid or levied by process of law.,
Section 69. Termination of imprisonment on payment of proportional part of fine,
"If, before the expiration of the term of imprisonment fixed in default of",
"payment, such a proportion of the fine be paid or levied that the term of",
imprisonment suffered in default of payment is not less than proportional to,
"the part of the fine still unpaid, the imprisonment shall terminate.",
Illustration,
A is sentenced to a fine of one hundred rupees and to four month’,
"imprisonment in default of payment. Here, if seventy-five rupees of the fine be",
paid or levied before the expiation of one month of the imprisonment. A will,
be discharged as soon as the first month has expired. If seventy-five rupees be,
"paid or levied at the time of the expiration of the first month, or at any later",
time while A continues in imprisonment. A will be immediately discharged. If,
fifty rupees of the fine be paid or levied before the expiration of two months of,
"the imprisonment, A will be discharged as soon as the two months are",
completed. If fifty rupees be paid or levied at the time of the expiration of,
"those two months, or at any later time while A continues in imprisonment, A",
will be immediately discharged.,
"Section 70. Fine levied within six years, or during imprisonment- Death not to discharge",
property from liability,
"The fine, or any part thereof which remains unpaid, may e levied at any time",
"within six years after the passing of the sentence, and if, under the sentence,",
"the offender be liable to imprisonment for a longer period than six years, then",
at any time previous to the expiration of that period; and the death of the,
"offender does not discharge from the liability any property which would, after",
"his death, be legally liable for his debts.",
Section 71. Limit of punishment of offence made up of several offences,
"Where anything which is an offence is made up of parts, any of which parts is",
"itself an offence, the offender shall not be punished with the punishment of",
"more than one of such his offences, unless it be so expressly provided.",
[Where anything is an offence falling within two or more separate definitions,
1,
of any law in force for the time being by which offences are defined or,
"punished, or",
"where several acts, of which one or more than one would by itself or",
"themselves constitute an offence, constitute, when combined, a different",
"offence,",
the offender shall not be punished with a more severe punishment than the,
Court which tries him could award for any one of such offences.],
Illustrations,
(a) A gives Z fifty strokes with a stick. Here A may have committed the offence,
"of voluntarily causing hurt to Z by the whole beating, and also by each of the",
blows which make up the whole beating. If A were liable to punishment for,
"every blow, he might be imprisoned for fifty years, one for each blow. But he is",
liable only to one punishment for the whole beating.,
"(b) But if, while A is beating Z, Y interferes, and A intentionally strikes Y, here,",
as the blow given to Y is no part of the act whereby A voluntarily causes hurt to,
"Z, A is liable to one punishment for voluntarily causing hurt to Z, and to",
another for the blow given to Y.,
"1. Added by Act 8 of 1882, sec. 4.",
"Section 72. Punishment of person guilty of one of several offences, the judgment stating",
that it is doubtful of which,
In all cases in which judgment is given that a person is guilty of one of several,
"offences specified in the judgment, but that it is doubtful of which of these",
"offences he is guilty, the offender shall be punished for the offence for which",
the lowest punishment is provided if the same punishment is not provided for,
all.,
Section 73. Solitary confinement,
Whenever any person is convicted of an offence for which under this Code the,
"Court has power to sentence him to rigorous imprisonment, the Court may, by",
"its sentence, order that the offender shall be kept in solitary confinement for",
"any portion or portions of the imprisonment to which he is sentenced, not",
"exceeding three months in the whole, according to the following scale, that is",
to say,
a time not exceeding one month if the term of imprisonment shall not exceed,
six months;,
a time not exceeding two months if the term of imprisonment shall exceed six,
months and [shall not exceed one] year;,
1,
a time not exceeding three months if the term of imprisonment shall exceed,
one year.,
"1. Subs. by Act 8 of 1882, sec. 5, for “be less than a”.",
Section 74. Limit of solitary confinement,
"In executing a sentence of solitary confinement, such confinement shall in no",
"case exceed fourteen days at a time, with intervals between the periods of",
solitary confinement of not less duration than such periods: and when the,
"imprisonment awarded shall exceed three months, the solitary confinement",
shall not exceed seven days in any one month of the whole imprisonment,
"awarded, with intervals between the periods of solitary confinement of not less",
duration than such periods.,
Section 75. Enhanced punishment for certain offences under Chapter XII or Chapter,
XVII after previous conviction,
75. Enhanced punishment for certain offences under Chapter XII or Chapter,
1,
"XVII after previous conviction.- Whoever, having been convicted,",
"(a) by a Court in [India], of an offence punishable under Chapter XII or",
2,
Chapter XVII of this Code with imprisonment of either description for a term,
"of three years or upwards, [***]",
3,
[***],
3,
shall be guilty of any offence punishable under either of those Chapters with,
"like imprisonment for the like term, shall be subject for every such subsequent",
"offence to [imprisonment for life], or to imprisonment of either description",
4,
for a term which may extend to ten years.],
"1. Subs. by Act 3 of 1910, sec. 2, for the original section.",
"2. The words “British India” have successively been subs. by the A.O. 1948, the",
"A.O. 1950 and Act 3 of 1951, sec. 3 and Sch., to read as above.",
3. The word “or” at the end of clause (a) and clause (b) omitted by Act 3 of,
"1951, sec. 3 and Sch.",
"4. Subs. by Act 26 of 1955, sec. 117 and Sch., for “transportation for life” (w.e.f.",
1-1-1956).,
"Section 76. Act done by a person bound, or by mistake of fact believing himself bound, by",
law,
"Nothing is an offence which is done by a person who is, or who by reason of a",
mistake of fact and not by reason of a mistake of law in good faith believes,
"himself to be, bound by law to do it.",
Illustrations,
"(a) A, a soldier, fires on a mob by the order of his superior officer, in",
conformity with the commands of the law. A has committed no offence.,
"(b) A, an officer of a Court of Justice, being ordered by that Court to arrest Y,",
"and, after due enquiry, believing Z to be Y, arrests Z. A has Committed no",
offence.,
Section 77. Act of Judge when acting judicially,
Nothing is an offence which is done by a Judge when acting judicially in the,
"exercise of any power which is, or which in good faith he believes to be, given",
to him by law.,
Section 78. Act done pursuant to the judgment or order of Court,
"Nothing which is done in pursuance of, or which is warranted by the judgment",
"or order of, a Court of Justice ; if done whilst such judgment or order remains",
"in force, is an offence, notwithstanding the Court may have had no jurisdiction",
"to pass such judgment or order, provided the person doing the act in good",
faith believes that the Court had such jurisdiction.,
"Section 79. Act done by a person justified, or by mistake of fact believing himself",
"justified, by law",
"Nothing is an offence which is done by any person who is justified by law, or",
who by reason of a mistake of fact and not by reason of a mistake of law in,
"good faith, believes himself to be justified by law, in doing it.",
Illustration,
"A sees Z commit what appears to A to be a murder. A, in the exercise, to the",
"best of his judgment exerted in good faith, of the power which the law gives to",
"all person of apprehending murderers in the fact, seizes Z, in order to bring Z",
"before the proper authorities. A has committed no offence, though it may turn",
out that Z was acting in self-defence.,
Section 80. Accident in doing a lawful act,
"Nothing is an offence which is done by accident or misfortune, and without",
any criminal intention or knowledge in the doing of a lawful act in a lawful,
manner by lawful means and with proper care and caution.,
Illustration,
A is at work with a hatchet; the head flies off and kills a man who is standing,
"by. Here, if there was no want of proper caution on the part of A, his act is",
excusable and not an offence.,
"Section 81. Act likely to cause harm, but done without criminal intent, and to prevent",
other harm,
Nothing is an offence merely by reason of its being done with the knowledge,
"that it is likely to cause harm, it if be done without any criminal intention to",
"cause harm, and in good faith for the purpose of preventing or avoiding other",
harm to person or property.,
Explanation,
It is question of fact in such a case whether the harm to be prevented or,
avoided was of such a nature and so imminent as to justify or excuse the risk,
of doing the act with the knowledge that it was likely to cause harm.,
Illustrations,
"(a) A, the captain of a steam vessel, suddenly and without any fault or",
"negligence on his part, finds himself in such a position that, before he can stop",
"his vessel, he must inevitably run down a boat B, with twenty or thirty",
"passengers on board, unless he changes the course of his vessel, and that, by",
"changing his course, he must incur risk of running down a boat C with only",
"two passengers on board, which he may possibly clear. Here, if A alters his",
course without any intention to run down the boat C and in good faith for the,
"purpose of avoiding the danger to the passengers in the boat B, he is not guilty",
"of an offence, though he may run down the boat C by doing an act which he",
"knew was likely to cause that effect, if it be found as a matter of fact that the",
danger which he intended to avoid was such as to excuse him in incurring the,
risk of running down the boat C.,
"(b) A, in great fire, pulls down houses in order to prevent the conflagration",
from spreading. He does this with the intention in good faith of saving human,
"life or property. Here, if it be found that the harm to be prevented was of such",
a nature and so imminent as to excuse A’s act. A is not guilty of the offence.,
Section 82. Act of a child under seven years of age,
Nothing is an offence which is done by a child under seven years of age.,
Section 83. Act of a child above seven and under twelve of immature understanding,
Nothing is an offence which is done by a child above seven years of age and,
"under twelve, who has not attained sufficient maturity of understanding to",
judge of the nature and consequences of his conduct on that occasion,
Section 84. Act of a person of unsound mind,
"Nothing is an offence which is done by a person who, at the time of doing it, by",
"reason of unsoundness of mind, is incapable of knowing the nature of the act,",
or that he is doing what is either wrong or contrary to law.,
Section 85. Act of a person incapable of judgment by reason of intoxication caused,
against his will,
"Nothing is an offence which is done by a person who, at the time of doing it, is,",
"by reason of intoxication, incapable of knowing the nature of the act, or that",
"he is doing what is either wrong, or contrary to law: provided that the thing",
which intoxicated him was administered to him without his knowledge or,
against his will.,
Section 86. Offence requiring a particular intent of knowledge committed by one who is,
intoxicated,
In cases where an act done is not an offence unless done with a particular,
"knowledge or intent, a person who does the act in a state of intoxication shall",
be liable to be dealt with as if he had the same knowledge as he would have,
"had if he had not been intoxicated, unless the thing which intoxicated him was",
administered to him without his knowledge or against his will.,
"Section 87. Act not intended and not known to be likely to cause death or grievous hurt,",
done by consent,
"Nothing which is not intended to cause death, or grievous hurt, and which is",
"not known by the doer to be likely to cause death or grievous hurt, is an",
"offence by reason of any harm which it may cause, or be intended by the doer",
"to cause, to any person, above eighteen years of age, who has given consent,",
"whether express or implied, to suffer that harm; or by reason of any harm",
which it may be known by the doer to be likely to cause to any such person,
who has consented to take the risk of that harm.,
Illustration,
A and Z agrees to fence with each other for amusement. This agreement,
"implies the consent of each to suffer any harm which, in the course of such",
"fencing, may be caused without foul play ; and if A, while playing fairly, hurts",
"Z, A commits no offence.",
"Section 88. Act not intended to cause death, done by consent in good faith for person’s",
benefit.,
"Nothing which is not intended to cause death, is an offence by reason of any",
"harm which it may cause, or be intended by the doer to cause, or be known by",
"the doer to be likely to cause, to any person for whose benefit it is done in good",
"faith, and who has given a consent, whether express or implied, to suffer that",
"harm, or to take the risk of that harm",
Illustration,
"A, a surgeon, knowing that a particular operation is likely to cause the death of",
"Z, who suffers under a painful complaint, but not intending to cause Z’s death,",
"and intending in good faith, Z’s benefit performs that operation on Z, with Z’s",
consent. A has committed no offence.,
"Section 89. Act done in good faith for benefit of child or insane person, by or by consent",
of guardian,
Nothing which is done in good faith for the benefit of a person under twelve,
"years of age, or of unsound mind, by or by consent, either express or implied,",
"of the guardian or other person having lawful charge of that person, is an",
"offence by reason of any harm which it may cause, or be intended by the doer",
to cause or be known by the doer to be likely to cause to that person :,
Provisos—Provided,
First.— That this exception shall not extend to the intentional causing of,
"death, or to the attempting to cause death;",
Secondly.—That this exception shall not extend to the doing of anything which,
"the person doing it knows to be likely to cause death, for any purpose other",
"than the preventing of death or grievous hurt, or the curing of any grievous",
disease or infirmity;,
Thirdly.— That this exception shall not extend to the voluntary causing of,
"grievous hurt, or to the attempting to cause grievous hurt, unless it be for the",
"purpose of preventing death or grievous hurt, or the curing of any grievous",
disease or infirmity;,
"Fourthly.—That this exception shall not extend to the abetment of any offence,",
to the committing of which offence it would not extend.,
Illustration,
"A, in good faith, for his child’s benefit without his child’s consent, has his child",
cut for the stone by a surgeon. Knowing it to be likely that the operation will,
"cause the child’s death, but not intending to cause the child’s death. A is within",
"the exception, inasmuch as his object was the cure of the child.",
Section 90. Consent known to be given under fear or misconception,
"A consent is not such a consent as it intended by any section of this Code, if",
"the consent is given by a person under fear of injury, or under a misconception",
"of fact, and if the person doing the act knows, or has reason to believe, that the",
consent was given in consequence of such fear or misconception ; or,
Consent of insane person,
"if the consent is given by a person who, from unsoundness of mind, or",
"intoxication, is unable to understand the nature and consequence of that to",
which he gives his consent; or,
Consent of child,
"unless the contrary appears from the context, if the consent is given by a",
person who is under twelve years of age.,
Section 91. Exclusion of acts which are offences independently of harm caused,
"The exceptions in sections 87, 88 and 89 do not extend to acts which are",
"offences independently of any harm which they may cause, or be intended to",
"cause, or be known to be likely to cause, to the person giving the consent, or",
on whose behalf the consent is given.,
Illustration,
Causing miscarriage (unless caused in good faith for the purpose of saving the,
life of the woman) is an offence independently of any harm which it may cause,
"or be intended to cause to the woman. Therefore, it is not an offence “by",
reason of such harm”; and the consent of the woman or of her guardian to the,
causing of such miscarriage does not justify the act.,
Section 92. Act done in good faith for benefit of a person without consent,
Nothing is an offence by reason of any harm which it may cause to a person for,
"whose benefit it is done in good faith, even without that person’s consent, if",
the circumstances are such that it is impossible for that person to signify,
"consent, or if that person is incapable of giving consent, and has no guardian",
or other person in lawful charge of him from whom it is possible to obtain,
consent in time for the thing to be done with benefit:,
Provisos – Provided-,
First.— That this exception shall not extend to the intentional causing of,
"death, or the attempting to cause death;",
Secondly.—That this exception shall not extend to the doing of anything which,
"the person doing it knows to be likely to cause death, for any purpose other",
"than the preventing of death or grievous hurt, or the curing of any grievous",
disease or infirmity;,
Thirdly.-— That this exception shall not extend to the voluntary causing of,
"hurt, or to the attempting to cause hurt, for any purpose other than the",
preventing of death or hurt;,
"Fourthly.—That this exception shall not extend to the abetment of any offence,",
to the committing of which offence it would not extend.,
Illustrations,
"(a) Z is thrown from his horse, and is insensible. A, a surgeon, finds that Z",
"requires to be trepanned. A, not intending Z’s death, but in good faith, for Z’s",
"benefit, performs the trepan before Z recovers his power of judging for",
himself. A has committed no offence.,
(b) Z is carried off by a tiger. A fires at the tiger knowing it to be likely that the,
"shot may kill Z, but not intending to kill Z, and in good faith intending Z’s",
benefit. A’s ball gives Z a mortal wound. A has committed on offence.,
"(c) A, a surgeon, sees a child suffer an accident which is likely to prove fatal",
unless an operation be immediately performed. There is not time to apply to,
the child’s guardian. A performs the operation in spite of the entreaties of the,
"child, intending, in good faith, the child’s benefit. A has committed no offence.",
"(d) A is in a house which is on fire, with Z, a child. People below hold out a",
"blanket. A drops the child from the housetop, knowing it to be likely that the",
"fall may kill the child, but not intending to kill the child, and intending, in",
"good faith, the child’s benefit. Here, even if the child is killed by the fall, A has",
committed no offence.,
Explanation,
"Mere pecuniary benefit is not benefit within the meaning of Sections 88, 89",
and 92.,
Section 93. Communication made in good faith,
No communication made in good faith is an offence by reason of any harm to,
"the person to whom it is made, if it is made for the benefit of that person.",
Illustration,
"A, a surgeon in good faith, communicates to a patient his opinion that he",
cannot live. The patient dies in consequence of the shock. A has committed no,
"offence, though he knew it to be likely that the communication might cause",
the patient’s death.,
Section 94. Act to which a person is compelled by threats,
"Except murder, and offences against the State punishable with death, nothing",
"is an offence which is done by a person who is compelled to do it by threats,",
"which, at the time of doing it, reasonably cause the apprehension that instant",
death to that person will otherwise be the consequence:,
"Provided the person doing the act did not of his own accord, or from a",
"reasonable apprehension of harm to himself short of instant death, place",
himself in the situation by which he became subject to such constraint.,
Explanation 1,
"A person who, of his own accord, or by reason of a threat of being beaten, joins",
"a gang of dacoits, knowing their character, is not entitled to the benefit of this",
"exception, on the ground of his having been compelled by his associates to do",
anything that is an offence by law.,
Explanation 2,
"A person seized by a gang of dacoits, and forced, by threat of instant death, to",
"do a thing which is an offence by law ; for example, a smith compelled to take",
his tools and to force the door of a house for the dacoits to enter and plunder,
"it, is entitled to the benefit of this exception.",
Section 95. Act causing slight harm,
"Nothing is an offence by reason that it causes, or that it is intended to cause, or",
"that it is known to be likely to cause, any harm, if that harm is so slight that no",
person of ordinary sense and temper would complain of such harm.,
Section 96. Things done in private defence,
Nothing is an offence which is done in the exercise of the right of private,
defence.,
Private defence: object,
(i) In judging whether accused has exceeded his right to private defence or not,
the court has to take into account the weapons used; Madan Mohan Pandey v.,
"State of Uttar Pradesh, (1991) Cr LJ 467 (SC).",
(ii) The defence version regarding accused acting in self defence was liable to,
"be proved by accused; Rasikbhai Ram Singh Rana v. State of Gujarat, 1999 (1)",
Guj CR 176.,
"(iii) Where the right of private defence is pleaded, the defence must be a",
reasonable and probable version satisfying the cast that the harm caused by,
the accused was necessary for either warding off the attack or for forestalling,
the further reasonable apprehension from the side of the accused. The burden,
of establishing the plea of self-defence is on the accused and the burden stands,
discharged by showing preponderance of probabilities in favour of that plea on,
"the basis of the material on record; Rizan v. State of Chattisgarh, AIR 2003 SC",
976.,
Right to private defence,
(i) The accused is not required to prove the plea of private defence of person,
beyond reasonable manner of doubt. The onus on the accused is only to show,
that the defence version is probable one which is reflected from the salient,
features and the circumstances in the prosecution case itself; Sawai Ram v.,
"State of Rajasthan, (1997) 2 Crimes 148 (Raj).",
(ii) Divergent views expressed by court where prosecution failed to explain the,
injuries sustained by accused in same occurrence. Hence referred to larger,
"Bench; Ram Sunder Yadav v. State of Bihar, 1999 Cr LJ 3671 (SC).",
Section 97. Right of private defence of the body and of property,
"Every person has a right, subject to the restrictions contained in section 99, to",
defend,
"First.— His own body, and the body of any other person, against any offence",
affecting the human body;,
"Secondly.—The property, whether movable or immovable, of himself or of any",
"other person, against any act which is an offence falling under the definition of",
"theft, robbery, mischief or criminal trespass, or which is an attempt to commit",
"theft, robbery, mischief or criminal trespass.",
"Section 98. Right of private defence against the act of a person of unsound mind, etc.",
"When an act, which would otherwise be a certain offence, is not that offence,",
"by reason of the youth, the want of maturity of understanding, the",
"unsoundness of mind or the intoxication of the person doing that act, or by",
"reason of any misconception on the part of that person, every person has the",
same right of private defence against that act which he would have if the act,
were that offence.,
Illustrations,
"(a) Z, under the influence of madness, attempts to kill A; Z is guilty of no",
offence. But A has the same right of private defence which he would have if Z,
were sane.,
"(b) A enters by night a house which he is legally entitled to enter Z, in good",
"faith, taking A for a house-breaker, attacks A. Here Z, by attacking A under",
"this misconception, commits no offence. But A has the same right of private",
"defence against Z, which he would have if Z were not acting under that",
misconception.,
Section 99. Act against which there is no right of private defence,
There is no right of private defence against an act which does not reasonable,
"cause the apprehension of death or of grievous hurt, if done, or attempted to",
"be done, by a public servant acting in good faith under colour of his office,",
"though that act, may not be strictly justifiable by law.",
There is no right of private defence against an act which does not reasonable,
"cause the apprehension of death or of grievous hurt, if done, or attempted to",
"be done, by the direction of a public servant acting in good faith under colour",
"of his office, though that direction may not be strictly justifiable by law.",
There is no right of private defence in cases in which there is time to have,
recourse to the protection of the public authorities.,
Extent to which the right may be exercised,
The right to private defence in no case extends to the inflicting of more harm,
that it is necessary to inflict for the purpose of defence.,
Explanation 1,
"A person is not deprived of the right of private defence against an act done, or",
"attempted to be done, by a public servant, as such, unless he knows or has",
"reason to believe, that the person doing the act is such public servant.",
Explanation 2,
"A person is not deprived of the right of private defence against an act done, or",
"attempted to be done, by the direction of a public servant, unless he knows, or",
"has reason to believe, that the person doing the act is acting by such direction,",
"or unless such person states the authority under which he acts, or if he has",
"authority in writing, unless he produces such authority, if demanded.",
Section 100. When the right of private defence of the body extends to causing death,
"The right of private defence of the body extends, under the restrictions",
"mentioned in the last preceding section, to the voluntary causing of death or of",
"any other harm to the assailant, if the offence which occasions the exercise of",
"the right be of any of the descriptions hereinafter enumerated, namely:",
First.— Such an assault as may reasonably cause the apprehension that death,
will otherwise be the consequence of such assault;,
Secondly.—Such an assault as may reasonably cause the apprehension that,
grievous hurt will otherwise be the consequence of such assault;,
Thirdly.— An assault with the intention of committing rape;,
Fourthly.—An assault with the intention of gratifying unnatural lust;,
Fifthly.— An assault with the intention of kidnapping or abducting;,
"Sixthly.— An assault with the intention of wrongfully confining a person,",
under circumstances which may reasonably cause him to apprehend that he,
will be unable to have recourse to the public authorities for his release.,
1[Seventhly.–– An act of throwing or administering acid or an attempt to,
throw or administer acid which may reasonably cause the apprehension that,
grievous hurt will otherwise be the consequence of such act],
Ingredients,
(i) Self inflicted injuries not explained by prosecution except the reliance on,
medical evidence acquittal of accused not justified; Chuhar Singh v. State of,
"Punjab, AIR 1999 SC 1052: 1991 SCC (Cr) 1066: 1998 (4) JT 449.",
(ii) The inmates clearly had a right of private defence against the intruders,
who tried to extract money by force; Kishore Shambhudatta Mishra v. State of,
"Maharashtra, (1989) Cr LJ 1149: AIR 1989 SC 1173.",
Right of private defence to cause death,
(i) Under what circumstances accused gave knife blow to the deceased could,
"not be explained by accused, acquittal on ground of self defence not justified;",
"State of Uttar Pradesh v. Laeeg, AIR 1999 SC 1942: 1999 (5) SCC 588.",
(ii) While being chased by deceased appellant attacked on deceased caused fire,
"incised wound, held exceeded the right of private defence, conviction under",
"section 304 Part I proper; Suresh Singh v. State, AIR 1999 SC 1773: 1999 (2)",
Crimes 42.,
(iii) Attack by single blow on the neck of deceased proved fatal. Held accused,
"exceeded right of private defence; Amar Singh v. State of Madhya Pradesh,",
1997 SCC (Cr) 630.,
"1. Inserted by Section 2 of ‘The Criminal Law (Amendment) Act, 2013′",
Section 101. When such right extends to causing any harm other than death,
If the offence be not of any of the descriptions enumerated in the last,
"preceding section, the right of private defence of the body does not extend to",
"the voluntary causing of death to the assailant, but does extend, under the",
"restrictions mentioned in Section 99, to the voluntary causing to the assailant",
of any harm other than death.,
Section 102. Commencement and continuance of the right of private defence of the body,
The right of private defence of the body commences as soon as a reasonable,
apprehension of danger to the body arises from an attempt or threat to,
commit the offence though the offence may not have been committed; and it,
continues as long as such apprehension of danger to the body continues.,
Section 103. When the right of private defence of property extends to causing death,
"The right of private defence of property extends, under the restrictions",
"mentioned in section 99, to the voluntary causing of death or of any other",
"harm to the wrong-doer, if the offence, the committing of which, or the",
"attempting to commit which, occasions the exercise of the right, be an offence",
"of any of the descriptions hereinafter enumerated, namely:",
First.— Robbery;,
Secondly.—House-breaking by night;,
"Thirdly.— Mischief by fire committed on any building, tent or vessel, which",
"building, tent or vessel is used as a human dwelling, or as a place for the",
custody of property;,
"Fourthly.—Theft, mischief, or house-trespass, under such circumstances as",
may reasonably cause apprehension that death or grievous hurt will be the,
"consequence, if such right of private defence is not exercised.",
STATE AMENDMENTS,
Karnataka,
"(1) In section 103, in clause Thirdly,",
"(i) after the words “mischief by fire”, insert the words “or any explosive",
substance”;,
"(ii) after the words “as a human dwelling, or” insert the words “as a place of",
"worship, or”.",
"(2) After clause Fourthly, insert the following clause, namely:",
“Fifthly.—Mischief by fire or any explosive substance committed on any,
property used or intended to be used for the purpose of Government or any,
"local authority, statutory body or company owned or controlled by",
Government or railway or any vehicle used or adapted to be used for the,
carriage of passengers for hire or reward.”,
"[Vide Karnataka Act 8 of 1972, sec. 2 (w.e.f. 7-10-1972)].",
Maharashtra,
"In section 103, add the following at the end, namely:",
“Fifthly.—Mischief by fire or any explosive substance committed on any,
property used or intended to be used for the purposes of Government or any,
"local authority, statutory body, company owned or controlled by Government,",
"railway or tramway, or on any vehicle used or adapted to be used, for the",
carriage of passengers for hire or reward”.,
"[Vide Maharashtra Act 19 of 1971, sec. 26 (w.e.f. 31-12-1971)].",
Uttar Pradesh,
"In section 103, after clause fourthly, add the following clause, namely:",
“Fifthly.—Mischief by fire or any explosive substance committed on,
"(a) Any property used or intended to be used for the purpose of Government,",
or any local authority or other corporation owned or controlled by the,
"Government, or",
"(b) any railway as defined in clause (4) of section 3 of the Indian Railways Act,",
1890 or railways stores as defined in the Railways Stores (Unlawful,
"Possession) Act, 1955, or",
(c) any transport vehicle as defined in *clause (33) of section 2 of the Motor,
"Vehicles Act, 1939.”",
"[Vide Uttar Pradesh Act 29 of 1970, sec. 2 (w.e.f. 17-7-1970)].",
"* See clause (47) of sec. 2 of the Motor Vehicles Act, 1988.",
Section 104. When such right extends to causing any harm other than death,
"If the offence , the committing of which, or the attempting to commit which,",
"occasions the exercise of the right of private defence, be theft, mischief, or",
"criminal trespass, not of any of the descriptions enumerated in the last",
"preceding section, that right does not extend to the voluntary causing of death,",
"but does extend, subject to the restrictions mentioned in section 99, to the",
voluntary causing to the wrong -doer of any harm other than death.,
Section 105. Commencement and continuance of the right of private defence of property,
The Right of private defence of property commences when a reasonable,
apprehension of danger to the property commences.,
The right of private defence of property against theft continues till the,
offender has effected his retreat with the property or either the assistance of,
"the public authorities is obtained, or the property has been recovered.",
The right of private defence of property against robbery continues as long as,
the offender causes or attempts to cause to any person death or hurt or,
wrongful restraint of as long as the fear of instant death or of instant hurt or of,
instant personal restraint continues.,
The right of private defence of property against criminal trespass or mischief,
continues as long as the offender continues in the commission of criminal,
trespass or mischief.,
The right of private defence of property against house-breaking by night,
continues as long as the house-trespass which has been begun by such house-,
breaking continues.,
Section 106. Right of private defence against deadly assault when there is risk of harm to,
innocent person,
If in the exercise of the right of private defence against an assault which,
"reasonably causes the apprehension of death, the defender be so situated that",
he cannot effectually exercise that right without risk of harm to an innocent,
person his right or private defence extends to the running of that risk.,
Illustration,
A is attacked by a mob who attempt to murder him. He cannot effectually,
"exercise his right of private defence without firing on the mob, and he cannot",
fire without risk of harming young children who are mingled with the mob. A,
commits no offence if by so firing he harms any of the children.,
Section 107. Abetment of a thing,
"A person abets the doing of a thing, who",
First.— Instigates any person to do that thing; or,
Secondly.—Engages with one or more other person or persons in any,
"conspiracy for the doing of that thing, if an act or illegal omission takes place",
"in pursuance of that conspiracy, and in order to the doing of that thing; or",
"Thirdly.— Intentionally aids, by any act or illegal omission, the doing of that",
thing.,
Explanation 1,
"A person who, by wilful misrepresentation, or by wilful concealment of a",
"material fact which he is bound to disclose, voluntarily causes or procures, or",
"attempts to cause or procure, a thing to be done, is said to instigate the doing",
of that thing.,
Illustration,
"A, a public officer, is authorized by a warrant from a Court of Justice to",
"apprehend Z. B, knowing that fact and also that C is not Z, wilfully represents",
"to A that C is Z, and thereby intentionally causes A to apprehend C. Here B",
abets by instigation the apprehension of C.,
Explanation 2,
"Whoever, either prior to or at the time of the commission of an act, does",
"anything in order to facilitate the commission of that act, and thereby facilitate",
"the commission thereof, is said to aid the doing of that act.",
Section 108. Abettor,
"A person abets an offence, who abets either the commission of an offence, or",
"the commission of an act which would be an offence, if committed by a person",
capable of law of committing an offence with the same intention or knowledge,
as that of the abettor.,
Explanation 1,
The abetment of the illegal omission of an act may amount to an offence,
although the abettor may not himself be bound to do that act.,
Explanation 2,
To constitute the offence of abetment it is not necessary that the act abetted,
"should be committed, or that the effect requisite to constitute the offence",
should be caused.,
Illustrations,
(a) A instigates B to murder C. B refuses to do so. A is guilty of abetting B to,
commit murder.,
(b) A instigates B to murder D. B in pursuance of the instigation stabs D. D,
recovers from the wound. A is guilty of instigating B to commit murder.,
Explanation 3,
It is not necessary that the person abetted should be capable by law of,
"committing an offence, or that he should have the same guilty intention or",
"knowledge as that of abettor, or any guilty intention or knowledge.",
Illustrations,
"(a) A, with a guilty intention, abets a child or a lunatic to commit an act which",
"would be an offence, if committed by a person capable by law of committed an",
"offence, and having the same intention as A. Here A, whether the act be",
"committed or not, is guilty of abetting an offence.",
"(b) A, with the intention of murdering Z, instigates B, a child under seven",
"years of age, to do an act which causes Z’s death. B, in consequence of the",
"abetment, does the act in the absence of A and thereby causes Z’s death. Here,",
though B was not capable by law of committing an offence. A is liable to be,
punished in the same manner as if B had been capable by law of committing,
"an offence, and had committed murder, and he is therefore subject to the",
punishment of death.,
"(c) A instigates B to set fire to a dwelling-house, B, in consequence of the",
"unsoundness of his mind, being incapable of knowing the nature of the act, or",
"that he is doing what is wrong or contrary to law, sets fire to the house in",
"consequence of A’s instigation. B has committed no offence, but A is guilty of",
"abetting the offence of setting fire to a dwelling house, and is liable to the",
punishment provided for that offence.,
"(d) A, intending to cause a theft to be committed, instigates B to take property",
belonging to Z out of Z’s possession. A induces B to believe that the property,
"belongs to A. B takes the property out of Z’s possession, in good faith,",
"believing it to be A’s property. B, acting under this misconception, does not",
"take dishonestly, and therefore does not commit theft. But A is guilty of",
"abetting theft, and is liable to the same punishment as if B had committed",
theft.,
Explanation 4,
"The abetment of an offence being an offence, the abetment of such an",
abetment is also as offence.,
Illustration,
A instigates B to instigate C to murder Z. B accordingly instigates C to murder,
"Z, and C commits that offence in consequence of B’s instigation. B is liable to",
"be punished for his offence with the punishment for murder; and, as A",
"instigated B to commit the offence, A is also liable to the same punishment.",
Explanation 5,
It is not necessary to the commission of the offence of abetment by conspiracy,
that the abettor should concert the offence with the person who commits it. It,
is sufficient if he engages in the conspiracy in pursuance of which the offence,
is committed.,
Illustration,
A concerts with B a plan for poisoning Z. It is agreed that A shall administer,
the poison. B then explains the plan to C mentioning that a third person is to,
"administer the poison, but without mentioning A’s name. C agrees to procure",
"the poison, and procures and delivers it to B for the purpose of its being used",
in the manner explained. A administers the poison; Z dies in consequence.,
"Here, though A and C have not conspired together, yet C has been engaged in",
the conspiracy in pursuance of which Z has been murdered. C has therefore,
committed the offence defined in this section and is liable to the punishment,
for murder.,
Section 108A. Abetment in India of offences outside India,
108A. Abetment in India of offences outside India.- A person abets an offence,
1,
"within the meaning of this Code who, in [India], abets the commission of any",
2,
act without and beyond 2[India] which would constitute an offence if,
committed in [India].,
2,
Illustration,
"A, in [India], instigates B, a foreigner in Goa, to commit a murder in Goa.",
2,
A is guilty of abetting murder.,
"1. Added by Act 4 of 1898, sec. 3.",
"2. The words “British India” have successively been subs. by the A.O. 1948, the",
"A.O. 1950 and Act 3 of 1951, sec. 3 and Sch., to read as above.",
"Section 109. Punishment of abetment if the act abetted is committed in consequence, and",
where no express provision is made for its punishment,
"Whoever abets any offence shall, if the act abetted is committed in",
"consequence of the abetment, and no express provision is made by this Code",
"for the punishment of such abetment, be punished with the punishment",
provided for the offence.,
Explanation,
"An act or offence is said to be committed in consequence of abetment, when it",
is committed in consequence of the instigation or in pursuance of the,
"conspiracy, or with the aid, which constitutes the abetment.",
Illustrations,
"(a) A offers a bribe to B, a public servant, as a reward for showing A some",
favour in the exercise of B’s official functions. B accepts the bribe. A has,
abetted the offence defined in Section 161.,
"(b) A instigates B to give false evidence. B, in consequence of the instigation,",
"commits that offence. A is guilty of abetting that offence, and is liable to the",
same punishment as B.,
"(c) A and B conspire to poison Z. A in pursuance of the conspiracy, procures",
the poison and delivers it to B in order that he may administer it to Z. B in,
"pursuance of the conspiracy, administers the poison to Z in A’s absence and",
thereby causes Z’s death. Here B is guilty of murder. A is guilty of abetting that,
"offence by conspiracy, and is liable to the punishment for murder.",
CLASSIFICATION OF OFFENCE,
Punishment—Same as for offence abetted—According as offence abetted is,
cognizable or non-cognizable—According as offence abetted is bailable or non-,
bailable—Triable by court by which offence abetted is triable—Non-,
compoundable.,
Section 110. Punishment of abetment if person abetted does act with different intention,
from that of abettor,
"Whoever abets the commission of an offence shall, if the person abetted does",
"the act with a different intention or knowledge from that of the abettor, be",
punished with the punishment provided for the offence which would have,
been committed if the act had been done with the intention or knowledge of,
the abettor and with no other.,
CLASSIFICATION OF OFFENCE,
Punishment—Same as for offence abetted—According as offence abetted is,
cognizable or non-cognizable—According as offence abetted is bailable or non-,
bailable—Triable by court by which offence abetted is triable—Non-,
compoundable.,
Section 111. Liability of abettor when one act abetted and different act done,
"When an act is abetted and a different act is done, the abettor is liable for the",
"act done, in the same manner and to the same extent as if he had directly",
abetted it:,
Proviso,
"Provided the act done was a probable consequence of the abetment, and was",
"committed under the influence of the instigation, or with the aid or in",
pursuance of the conspiracy which constituted the abetment.,
Illustrations,
"(a) A instigates a child to put poison into the food of Z, and gives him poison",
"for that purpose. The child, in consequence of the instigation, by mistake puts",
"the poison into the food of Y, which is by the side of that of Z. Here, if the child",
"was acting under the influence of A’s instigation, and the act done was under",
the circumstances a probable consequence of the abetment. A is liable in the,
same manner and to the same extent as if he had instigated the child to put,
the poison into the food of Y.,
(b) A instigates B to burn Z’s house. B sets fire to the house and at the same,
"time commits theft of property there. A, though guilty of abetting the burning",
"of the house, is not guilty of abetting the theft; for the theft was a distinct act,",
and not a probable consequence of the burning.,
(c) A instigates B and C to break into an inhabited house at midnight for the,
"purpose of robbery, and provides them with arms for that purpose. B and C",
"break into the house, and being resisted by Z, one of the inmates, murder Z.",
"Here, if that murder was the probable consequence of the abetment, A is liable",
to the punishment provided for murder.,
CLASSIFICATION OF OFFENCE,
Punishment—Same as for offence intended to be abetted—According as,
offence abetted is cognizable or non-cognizable—According as offence abetted,
is bailable or non-bailable—Triable by court by which offence abetted is triable,
—Non-compoundable.,
Section 112. Abettor when liable to cumulative punishment for act abetted and for act,
done,
If the act for which the abettor is liable under the last preceding section is,
"committed in addition to the act abetted, and constitutes a distinct offence,",
the abettor is liable to punishment for each of the offences.,
Illustration,
"A instigates B to resist by force a distress made by a public servant. B, in",
"consequence, resists that distress. In offering the resistance, B voluntarily",
causes grievous hurt to the officer executing the distress. As be has committed,
"both the offence of resisting the distress, and the offence of voluntarily causing",
"grievous hurt, B is liable to punishment for both these offences; and, if A knew",
that B was likely voluntarily to cause grievous hurt in resisting the distress A,
will Also be liable to punishment for each of the offences.,
Section 113. Liability of abettor for an effect caused by the act abetted different from that,
intended by the abettor,
When an act is abetted with the intention on the part of the abettor of causing,
"a particular effect, and an act for which the abettor is liable in consequence of",
"the abetment, cause a different effect from that intended by the abettor, the",
"abettor is liable for the effect caused, in the same manner and to the same",
"extent as if he had abetted the act with the intention of causing that effect,",
provided he knew that the act abetted was likely to cause that effect.,
Illustration,
"A instigates B to cause grievous hurt to Z. B, in consequence of the instigation,",
"causes grievous hurt to Z. Z dies in consequence. Here, if A knew that the",
"grievous hurt abetted was likely to cause death, A is liable to be punished with",
the punishment provided for murder.,
CLASSIFICATION OF OFFENCE,
Punishment—Same as for offence committed—According as offence abetted is,
cognizable or non-cognizable—According as offence abetted is bailable or non-,
bailable—Triable by court by which offence abetted is triable—Non-,
compoundable.,
Section 114. Abettor present when offence is committed,
"Whenever any person, who is absent would be liable to be punished as an",
"abettor, is present when the act or offence for which he would be punishable in",
"consequence of the abetment is committed, he shall be deemed to have",
committed such act or offence.,
CLASSIFICATION OF OFFENCE,
Punishment—Same as for offence committed—According as offence abetted is,
cognizable or non-cognizable—According as offence abetted is bailable or non-,
bailable—Triable by court by which offence abetted is triable—Non-,
compoundable.,
Section 115. Abetment of offence punishable with death or imprisonment for life-if,
offence not committed,
Whoever abets the commission of an offence punishable with death,
"or [imprisonment for life], shall, if that offence be not committed in",
1,
"consequence of the abetment, and no express provision is made by this Code",
"for the punishment of such abetment, be punished with imprisonment of",
"either description for a term which may extend to seven years, and shall also",
be liable to fine;,
If act causing harm be done in consequence– and if any act for which,
"the abettor is liable in consequence of the abetment, and which causes hurt to",
"any person, is done, the abettor shall be liable to imprisonment of either",
"description for a term which may extend to fourteen years, and shall also be",
liable to fine.,
Illustration,
A instigates B to murder Z. The offence is not committed. If B had murdered,
"Z, he would have been subject to the punishment of death or 1[imprisonment",
for life]. Therefore A is liable to imprisonment for a term which may extend to,
seven years and also to a fine; and if any hurt be done to Z in consequence of,
"the abetment, he will be liable to imprisonment for a term which may extend",
"to fourteen years, and to fine.",
CLASSIFICATION OF OFFENCE,
Para I,
Punishment—Imprisonment for 7 years and fine—According as offence,
abetted is cognizable or non-cognizable—non-bailable—Triable by court by,
which offence abetted is triable—Non-compoundable.,
Para II,
Punishment—Imprisonment for 14 years and fine—According as offence,
abetted is cognizable or non-cognizable—non-bailable—Triable by court by,
which offence abetted is triable—Non-compoundable.,
–,
"1. Subs. by Act 26 of 1955, sec. 117 and Sch., for “transportation for life” (w.e.f.",
1-1-1956).,
Section 116. Abetment of offence punishable with imprisonment-if offence be not,
committed,
"Whoever abets an offence punishable with imprisonment shall, if that offence",
"be not committed in consequence of the abetment, and no express provision is",
"made by this Code for the punishment of such abetment, be punished with",
imprisonment of any description provided for that offence for a term which,
may extend to one-fourth part of the longest term provided for that offence; or,
"with such fine as is provided for the offence, or with both ;",
If abettor or person abetted be a public servant whose duty it is to,
prevent offence.— and if the abettor or the person abetted is a public,
"servant, whose duty it is to prevent the commission of such offence, the",
abettor shall be punished with imprisonment of any description provided for,
"that offence, for a term which may extend to one-half of the longest term",
"provided for that offence, or with such fine as is provided for the offence, or",
with both.,
Illustrations,
"(a) A offers a bribe to B, a public servant, as a reward for showing A some",
favour in the exercise of B’s official functions. B refuses to accept the bribe. A,
is punishable under this section.,
"(b) A instigates B to give false evidence. Here, if B does not give false evidence,",
"A has s nevertheless committed the offence defined in this section, and is",
punishable accordingly.,
"(c) A, a police-officer, whose duty it is to prevent robbery, abets the",
"commission of robbery. Here, though the robbery be not committed, A is",
liable to one-half of the longest term of imprisonment provided for that,
"offence, and also to fine.",
"(d) B abets the commission of a robbery by A, a police-officer, whose duty it is",
"to prevent that offence. Here, though the robbery be not committed, B is liable",
to one-half of the longest term of imprisonment provided for the offence of,
"robbery, and also to fine.",
CLASSIFICATION OF OFFENCE,
Para I,
"Punishment—Imprisonment extending to a quarter part of the longest term,",
"provided for the offence, or fine, or both—According to offence abetted is",
cognizable or non-cognizable—According as offence abetted is bailable or non-,
bailable—Triable by court by which offence abetted is triable—Non-,
compoundable.,
Para II,
"Punishment—Imprisonment extending to half of the longest term, provided",
"for the offence, or fine, or both—According as offence abetted is cognizable or",
non-cognizable—According as offence abetted is bailable or non-bailable—,
Triable by court by which offence abetted is triable—Non-compoundable.,
Section 117. Abetting commission of offence by the public or by more than ten persons,
Whoever abets the commission of an offence by the public generally or by any,
"number or class of persons exceeding ten, shall be punished with",
imprisonment of either description for a term which may extend to three,
"years, or with fine, or with both.",
Illustration,
A affixes in a public place a placard instigating a sect consisting of more than,
"ten members to meet at a certain time and place, for the purpose of attacking",
"the members of an adverse sect, while engaged in a procession. A has",
committed the offence defined in this section.,
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 3 years, or fine, or both—According as offence",
abetted is cognizable or non-cognizable—According as offence abetted is,
bailable or non-bailable—Triable by court by which offence abetted is triable—,
Non-compoundable.,
Section 118. Concealing design to commit offence punishable with death or,
imprisonment for life,
Whoever intending to facilitate or knowing it to be likely that he will thereby,
facilitate the commission of an offence punishable with death,
or [imprisonment for life];,
1,
[Voluntarily conceals by any act or omission or by the use of encryption or,
2,
"any other information hiding tool, the existence of a design] to commit such",
offence or makes any representation which he knows to be false respecting,
"such design,",
"If offence be committed—if offence be not committed.—shall, if that",
"offence be committed, be punished with imprisonment of either description",
"for a term which may extend to seven years, or, if the offence be not",
"committed, with imprisonment of either description, for a term which may",
extend to three years; and in either case shall also be liable to fine.,
Illustration,
"A, knowing that dacoity is about to be committed at B, falsely informs the",
"Magistrate that a dacoity is about to be committed at C, a place in an opposite",
"direction, and thereby misleads the Magistrate with intent to facilitate the",
commission of the offence. The dacoity is committed at B in pursuance of the,
design. A is punishable under this section.,
CLASSIFICATION OF OFFENCE,
Para I,
Punishment—Imprisonment for 7 years and fine—According as offence,
abetted is cognizable or non-cognizable—Non-bailable—Triable by court by,
which offence abetted is triable—Non-compoundable.,
Para II,
Punishment—Imprisonment for 3 years and fine—According as offence,
abetted is cognizable or non-cognizable—Bailable—Triable by court by which,
offence abetted is triable—Non-compoundable.,
–,
"1. Subs. by Act 26 of 1955, sec. 117 and Sch., for “transportation for life” (w.e.f.",
1-1-1956).,
"2. Subs. by Act 10 of 2009, sec. 51(c), for “Voluntarily conceals, by any act or",
"illegal omission,, the existence of a design”.",
Section 119. Public servant concealing design to commit offence which it is his duty to,
prevent,
"Whoever, being a public servant, intending to facilitate or knowing it to be",
likely that he will thereby facilitate the commission of an offence which it is his,
duty as such public servant to prevent;,
[Voluntarily conceals by any act or omission or by the use of encryption or,
1,
"any other information hiding tool, the existence of a design] to commit such",
offence or makes any representation which he knows to be false respecting,
"such design,",
"If offence be committed.—shall, if the offence be committed, be punished",
"with imprisonment of any description provided for the offence, for a term",
"which may extend to one-half of the longest term of such imprisonment, or",
"with such fine as is provided for that offence, or with both;",
"If offence be punishable with death, etc.—or, if the offence be",
"punishable with death or [imprisonment for life], with imprisonment of either",
2,
description for a term which may extend to ten years;,
"If offence be not committed.—or if the offence be not committed, shall be",
punished with imprisonment of any description provided for the offence for a,
term which may extend to one-fourth part of the longest term of such,
"imprisonment or with such fine as is provided for the offence, or with both.",
Illustration,
"A, an officer of police, being legally bound to give information of all designs to",
"commit robbery which may come to his knowledge, and knowing that B",
"designs to commit robbery, omits to give such information, with intent to",
facilitate the commission of that offence. Here A has by an illegal omission,
"concealed the existence of B’s design, and is liable to punishment according to",
the provision of this section.,
CLASSIFICATION OF OFFENCE,
Para I,
Punishment—Imprisonment extending to half of the longest term provided for,
"the offence, or fine, or both—According as offence abetted is cognizable or",
non-cognizable—According as offence abetted is bailable or non-bailable—,
Triable by court which offence abetted is triable—Non-compoundable.,
Para II,
Punishment—Imprisonment for 10 years—According as offence abetted is,
cognizable or non-cognizable—Non-bailable—Triable by court by which,
offence abetted is triable—Non-compoundable.,
Para III,
Punishment—Imprisonment extending to a quarter part of the longest term,
"provided for the offence, or fine, or both—According as offence abetted is",
cognizable or non-cognizable—Bailable—Triable by court by which offence,
abetted is triable—Non-compoundable.,
"1. Subs. by Act 10 of 2009, sec. 51(d), “voluntarily conceals,” by any Act or",
"illegal ommission, the existence of a design”.",
"2. Subs. by Act 26 of 1955, sec. 117 and Sch., for “transportation for life” (w.e.f",
1-1-1956).,
Section 120. Concealing design to commit offence punishable with imprisonment,
"Whoever, intending to facilitate or knowing it to be likely that he will thereby",
"facilitate the commission of an offence punishable with imprisonment,",
"voluntarily conceals, by any act or illegal omission, the existence of a design to",
"commit such offence, or makes any representation which he knows to be false",
"respecting such design,",
"If offence be committed—if offence be not committed.—shall, if the",
"offence be committed, be punished with imprisonment of the description",
"provided for the offence, for a term which may extend to one-fourth, and, if",
"the offence be not committed, to one-eighth, of the longest term of such",
"imprisonment, or with such fine as is provided for the offence, or with both.",
CLASSIFICATION OF OFFENCE,
Para I,
Punishment—Imprisonment extending to a quarter part of the longest term,
"provided for the offence, or fine, or both—According as offence abetted is",
cognizable or non-cognizable—According as offence abetted is bailable or non-,
bailable—Triable by court by which offence abetted is triable—Non-,
compoundable.,
Para II,
Punishment—Imprisonment extending to one-eighth part of the longest term,
"provided for the offence, or fine, or both—According as offence abetted is",
cognizable or non-cognizable—Bailable—Triable by court by which offence,
abetted is triable—Non-compoundable.,
Section 120A. Definition of criminal conspiracy.,
120A. Definition of criminal conspiracy.- When two or more persons agree to,
1,
"do, or cause to be done,",
"(1) an illegal act, or",
"(2) an act which is not illegal by illegal means, such an agreement is",
designated a criminal conspiracy:,
Provided that no agreement except an agreement to commit an offence shall,
amount to a criminal conspiracy unless some act besides the agreement is,
done by one or more parties to such agreement in pursuance thereof.,
Explanation,
It is immaterial whether the illegal act is the ultimate object of such,
"agreement, or is merely incidental to that object.]",
"1. Ins. by Act 8 of 1913, sec. 3.",
Section 120B. Punishment of criminal conspiracy,
120B. Punishment of criminal conspiracy.—(1) Whoever is a party to a,
1,
criminal conspiracy to commit an offence punishable with,
"death, [imprisonment for life] or rigorous imprisonment for a term of two",
2,
"years or upwards, shall, where no express provision is made in this Code for",
"the punishment of such a conspiracy, be punished in the same manner as if he",
had abetted such offence.,
(2) Whoever is a party to a criminal conspiracy other than a criminal,
conspiracy to commit an offence punishable as aforesaid shall be punished,
"with imprisonment of either description for a term not exceeding six months,",
or with fine or with both.,
CLASSIFICATION OF OFFENCE,
Para I,
Punishment—Same as for abetment of the offence which is the object of the,
conspiracy—According as the offence which is the object of conspiracy is,
cognizable or non-cognizable—According as offence which is object of,
conspiracy is bailable or non-bailable—Triable by court by which abetment of,
the offence which is the object of conspiracy is triable—Non-compoundable.,
Para II,
"Punishment—Imprisonment for six months or fine, or both—non-cognizable—",
Bailable—Triable by Magistrate of the first class—Non-compoundable.,
"1. Ins. by Act 8 of 1913, sec. 3.",
"2. Subs. by Act 26 of 1955, sec. 117 and Sch., for “transportation for life” (w.e.f.",
1-1-1956).,
"Section 121. Waging, or attempting to wage war, or abetting waging of war, against the",
Government of India,
"Whoever wages war against the [Government of India], or attempts to wage",
1,
"such war, or abets the waging of such war, shall be punished with death,",
or [imprisonment for life] [and shall also be liable to fine].,
2 3,
4[Illustration],
[***] A joins an insurrection against the [Government of India]. A has,
5 6,
committed the offence defined in this section.,
[* * *],
7,
CLASSIFICATION OF OFFENCE,
Punishment—Death or imprisonment for life and fine—Cognizable—Non-,
bailable—Triable by Court of Session—Non-compoundable.,
–,
"1. Subs. by the A.O. 1950, for “Queen”.",
"2. Subs. by Act 26 of 1955, sec. 117 and Sch., for “transportation for life” (w.e.f.",
1-1-1956).,
"3. Subs. by Act 16 of 1921, sec. 2, for “and shall forfeit all his property”.",
"4. Subs. by Act 36 of 1957, sec. 3 and Sch. II, for “Illustrations” (w.e.f. 17-9-",
1957).,
"5. The brackets and letter “(a)” omitted by Act 36 of 1957, sec. 3 and Sch. II",
(w.e.f. 17-9-1957).,
"6. Subs. by the A.O. 1950, for “Queen”.",
7. Illustration (b) omitted by the A.O. 1950.,
Section 121A. Conspiracy to commit offences punishable by section 121,
121A. Conspiracy to commit offences punishable by section 121.— Whoever,
1,
within or without [India] conspires to commit any of the offences punishable,
2,
"by Section 121, [***] or conspires to overawe, by means of criminal force or",
3,
"the show of criminal force, [the Central Government or any [State]",
4 5,
"Government [***], shall be punished with [imprisonment for life], or with",
6 7,
"imprisonment of either description which may extend to ten years, [and shall",
8,
also be liable to fine].,
Explanation,
"To constitute a conspiracy under this section, it is not necessary that any act or",
illegal omission shall take place in pursuance thereof.,
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for life, or imprisonment for 10 years and fine—",
Cognizable—Non-bailable—Triable by Court of Session—Non-compoundable.,
"1. Ins. by Act 27 of 1870, sec. 4.",
"2. The words “British India” have successively been subs. by the A.O. 1948, the",
"A.O. 1950 and Act 3 of 1951, sec. 3 and Sch., to read as above.",
3. The words “or to deprive the Queen of the sovereignty of the Provinces or of,
any part thereof” omitted by the A.O. 1950.,
"4. Subs. by the A.O. 1937, for “the Government of India” or any “Local",
Government”.,
"5. Subs. by the A.O. 1950, for “Provincial”.",
6. The words “or the Government of Burma” omitted by the A.O. 1948.,
"7. Subs. by Act 26 of 1955, sec. 117 and Sch., for “transportation for life or any",
shorter term” (w.e.f. 1-1-1956).,
"8. Subs. by Act 16 of 1921, sec. 3, for “and shall forfeit all his property”.",
"Section 122. Collecting arms, etc., with intention of waging war against the Government",
of India,
"Whoever collects men, arms or ammunition or otherwise prepares to wage",
war with the intention of either waging or being prepared to wage war against,
"the [Government of India], shall be punished with [imprisonment for life] or",
1 2,
"imprisonment of either description for a term not exceeding ten years, [and",
3,
shall also be liable to fine].,
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for life, or imprisonment for 10 years and fine—",
Cognizable—Non-bailable—Triable by Court of Session—Non-compoundable.,
"1. Subs. by the A.O. 1950, for “Queen”.",
"2. Subs. by Act 26 of 1955, sec. 117 and Sch., for “transportation for life” (w.e.f.",
1-1-1956).,
"3. Subs. by Act 16 of 1921, sec. 3, for “and shall forfeit all his property”.",
Section 123. Concealing with intent to facilitate design to wage war,
"Whoever by any act, or by any illegal omission, conceals the existence of a",
"design to wage war against the [Government of India], intending by such",
1,
"concealment to facilitate, or knowing it to be likely that such concealment will",
"facilitate, the waging of such war, shall be punished with imprisonment of",
"either description for a term which may extend to ten years, and shall also be",
liable to fine.,
CLASSIFICATION OF OFFENCE,
Punishment—Imprisonment for 10 years and fine—Cognizable—Non-bailable,
—Triable by court of Session—Non-compoundable.,
"1. Subs. by the A.O. 1950, for “Queen”.",
"Section 124. Assaulting President, Governor, etc., with intent to compel or restrain the",
exercise of any lawful power,
"Whoever, with the intention of including or compelling the [President] of",
1,
"India, or the [Governor [* * *]] of any [State], [* * *] [* * * ] [* * *] to",
2 3 4 5 6 7,
exercise or refrain from exercising in any manner any of the lawful powers of,
"such [President] or [Governor [* * *]],",
8 2 3,
"Assault or wrongfully restrains, or attempts wrongfully to restrain, or",
"overawes, by means of criminal force or the show of criminal force, or",
"attempts so to overawe, such [President or [Governor [* * *]],",
8 2 3,
Shall be punished with imprisonment of either description for a term which,
"may extend to seven years, and shall also be liable to fine.",
CLASSIFICATION OF OFFENCE,
Punishment—Imprisonment for 7 years and fine—Cognizable—Non-bailable—,
Triable by Court of Session—Non-compoundable.,
"1. Subs. by the A.O. 1950, for “Governor General”.",
"2. Subs. by Act 3 of 1951, sec. 3 and Sch., for “Governor”.",
3. The words “or Rajpramukh” omitted by the A.O. 1956.,
"4. Subs. by the A.O. 1950, for “Province” which had been subs. by the A.O.",
"1937, for “Presidency”.",
5. The words “or a Lieutenant-Governor” omitted by the A.O. 1937.,
6. The words “or a Member of the Council of the Governor General of India”,
omitted by the A.O. 1948.,
7. The words “or of the Council of any Presidency” omitted by the A.O. 1937.,
"8. The original words “Governor General, Governor, Lieutenant-Governor or",
"Member of Council” have successfully been amended by the A.O. 1937, the",
A.O. 1948 and the A.O. 1950 to read as above.,
Section 124A. Sedition,
"124A. Sedition.— Whoever, by words, either spoken or written, or by signs, or",
1,
"by visible representation, or otherwise, brings or attempts to bring into hatred",
"or contempt, or excites or attempts to excite disaffection towards. [* * *] the",
2,
"Government established by law in [India], [* * *] shall be punished",
3 4,
"with [imprisonment for life], to which fine may be added, or with",
5,
"imprisonment which may extend to three years, to which fine may be added,",
or with fine.,
Explanation 1,
The expression “disaffection” includes disloyalty and all feelings of enmity.,
Explanation 2,
Comments expressing disapprobation of the measures of the Government with,
"a view to obtain their alteration by lawful means, without exciting or",
"attempting to excite hatred, contempt or disaffection, do not constitute an",
offence under this section.,
Explanation 3,
Comments expressing disapprobation of the administrative or other action of,
"the Government without exciting or attempting to excite hatred, contempt or",
"disaffection, do not constitute an offence under this section.",
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for life and fine, or imprisonment for 3 years and",
"fine, or fine—Cognizable—Non-bailable—Triable by Court of Session—Non-",
compoundable.,
"1. Subs. by Act 4 of 1898, sec. 4, for section 124A which had been ins. by Act 27",
"of 1870, sec. 5.",
2. The words “Her Majesty or” omitted by the A.O. 1950. The words “or the,
Crown Representative ins. after the word “Majesty” by the A.O. 1937 were,
omitted by the A.O. 1948.,
"3. The words “British India” have successively been subs. by the A.O. 1948, the",
"A.O. 1950 and Act 3 of 1951, sec. 3 and Sch., to read as above.",
4 The words “or British Burma” ins. by the A.O. 1937 omitted by the A.O.,
1948.,
"5. Subs. by Act 26 of 1955, sec. 117 and Sch., for “transportation for life or any",
shorter term” (w.e.f. 1-1-1956).,
Section 125. Waging war against any Asiatic Power in alliance with the Government of,
India.,
Whoever wages war against the Government of any Asiatic Power in alliance,
"or at peace with the [Government of India] or attempts to wage such war, or",
1,
"abets the waging of such war, shall be punished with [imprisonment for life],",
2,
"to which fine may be added, or with imprisonment of either description for a",
"term which may extend to seven years, to which fine may be added, or with",
fine.,
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for life and fine, or imprisonment for 7 years and",
"fine, or fine—Cognizable—Non-bailable—Triable by Court of Session—Non-",
compoundable.,
"1. Subs. by the A.O. 1950, for “Queen”.",
"2. Subs. by Act 26 of 1955, sec. 117 and Sch., for “transportation for life” (w.e.f.",
1-1-1956).,
Section 126. Committing depredation on territories of Power at peace with the,
Government of India,
"Whoever commits depredation, or makes preparation to commit depredation,",
on the territories of any Power in alliance or at peace with the [Government of,
1,
"India], shall be punished with imprisonment of either description for a term",
"which may extend to seven years, and shall also be liable to fine and to",
forfeiture of any property used or intended to be used in committing such,
"depredation, or acquired by such depredation.",
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 7 years and fine, and forfeiture of certain",
property—Cognizable—Non-bailable—Triable by Court of Session—Non-,
compoundable.,
"1. Subs. by the A.O. 1950, for “Queen”.",
Section 127. Receiving Property taken by war on depredation mention in Sections 125,
and 126,
Whoever receives any property knowing the same to have been taken in the,
"commission of any of the offences mentioned in Sections 125 and 126, shall be",
punished with imprisonment of either description for a term which may,
"extend to seven years, and shall also be liable to fine and to forfeiture of the",
property so received.,
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 7 years and fine, and forfeiture of certain",
property—Cognizable—Non-bailable—Triable by Court of Session—Non-,
compoundable.,
Section 128. Public servant voluntary allowing prisoner of State or war to escape,
"Whoever, being a public servant and having the custody of any State prisoner",
"or prisoner of war, voluntarily allows such prisoner to escape from any place",
"in which such prisoner is confined, shall be punished with [imprisonment for",
1,
"life], or imprisonment of either description for a term which may extend to ten",
"years, and shall also be liable to fine.",
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for life, or imprisonment for 10 years and fine—",
Cognizable—Non-bailable—Triable by Court of Session—Non-compoundable.,
"1. Subs. by Act 26 of 1955, sec. 117 and Sch., for “transportation for life” (w.e.f.",
1-1-1956).,
Section 129. Public servant negligently suffering such prisoner to escape,
"Whoever, being a public servant and having the custody of any State prisoner",
"or prisoner of war, negligently suffers such prisoner to escape from any place",
"of confinement in which such prisoner is confined, shall be punished with",
"simple imprisonment for a term which may extend to three years, and shall",
also be liable to fine.,
CLASSIFICATION OF OFFENCE,
Punishment—Simple Imprisonment for 3 years and fine—Cognizable—,
Bailable—Triable by Magistrate of the first class—Non-compoundable.,
"Section 130. Aiding escape of, rescuing or harbouring such prisoner",
Whoever knowingly aids or assists any State prisoner or prisoner of war in,
"escaping from lawful custody, or rescues or attempts to rescue any such",
"prisoner, or harbours or conceals any such prisoner who has escaped from",
"lawful custody, or offers or attempts to offer any resistance to the recapture of",
"such prisoner, shall be punished with [imprisonment for life], or with",
1,
"imprisonment of either description for a term which may extend to ten years,",
and shall also be liable to fine.,
Explanation,
"A State prisoner or prisoner of war, who is permitted to be at large on his",
"parole within certain limits in [India], is said to escape from lawful custody if",
2,
he goes beyond the limits within which he is allowed to be at large.,
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for life, or imprisonment for 10 years and fine—",
Cognizable—Non-bailable—Triable by Court of Session—Non-compoundable.,
"1. Subs. by Act 26 of 1955, sec. 117 and Sch., for “transportation for life” (w.e.f.",
1-1-1956).,
"2. The words “British India” have sucessively been subs. by the A.O. 1948, the",
"A.O. 1950 and Act 3 of 1951, sec. 3 and Sch., to read as above.",
"Section 131. Abetting mutiny, or attempting to seduce a soldier, sailor or airman from his",
duty,
"Whoever abets the committing of mutiny by an officer, soldier, [sailor or",
1,
"airman], in the Army, [Navy or Air Force] of the [Government of India] or",
2 3,
"attempts to seduce any such officer, soldier, [sailor or airman] from his alle-",
4,
"giance or his duty, shall be punished with [imprisonment for life], or with",
5,
"imprisonment of either description for a term which may extend to ten years,",
and shall also be liable to fine.,
"[Explanation.—In this section the words “officer”, [“soldier”, [“sailor”] and",
6 7 8,
"“airman”] include any person subject to the [Army Act, [the Army Act, 1950",
9 10,
"(46 of 1950, [the Naval Discipline Act, [***] the [Indian Navy (Discipline)",
11 12 11,
"Act, 1934 (34 of 1934)] [the Air Force Act or [the Air Force Act, 1950 (45 of",
13 14,
"1950)], as the case may be]].",
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for life, or imprisonment for 10 years and fine—",
Cognizable—Non-bailable—Triable by Court of Session—Non-compoundable.,
"1. Subs. by Act 10 of 1927, sec. 2 and Sch. I, for “or sailor”.",
"2. Subs. by Act 10 of 1927, sec. 2 and Sch. I, for “or Navy”.",
"3. Subs. by the A.O. 1950, for “Queen”.",
"4. Subs. by Act 10 of 1927, sec. 2 and Sch. I, for “or sailor”.",
"5. Subs. by Act 26 of 1955, sec. 117 and Sch., for “transportation for life” (w.e.f.",
1-1-1956).,
"6. Ins. by Act 27 of 1870, sec. 6.",
"7. Subs. by Act 10 of 1927, sec. 2 and Sch. I, for “and soldier”.",
"8. Ins. by Act 35 of 1934, sec. 2 and Sch.",
"9. Subs. by Act 10 of 1927, sec. 2 and Sch. I, for “Articles of War for the better",
"government of Her Majesty’s Army, or to the Articles of War contained in Act",
No. 5 of 1869″.,
"10. Subs. by Act 3 of 1951, sec. 3 and Sch., for “the Indian Army Act, 1911”.",
"11. Now see the Navy Act, 1957 (62 of 1957).",
12. The words “or that Act as modified by” omitted by the A.O. 1950.,
"13. Subs. by Act 14 of 1932, sec. 130 and Sch., for “or the Air Force Act”.",
"14. Subs. by Act 3 of 1951, sec. 3 and Sch., for “the Indian Air Force Act, 1932”.",
"Section 132. Abetment of mutiny, if mutiny is committed in consequence thereof",
"Whoever abets the committing of mutiny by an officer, soldier, [sailor or",
1,
"airman] in the Army, [Navy or Air Force] of the [Government of India], shall,",
2 3,
"if mutiny be committed in consequence of that abetment, be punished with",
"death or with [imprisonment for life], or imprisonment of either description",
4,
"for a term which may extend to ten years, and shall also be liable to fine.",
CLASSIFICATION OF OFFENCE,
"Punishment—Death, or imprisonment for life, or imprisonment for 10 years",
and fine-Cognizable—Non-bailable—Triable by Court of Session—Non-,
compoundable.,
"1. Subs. by Act 10 of 1927, sec. 2 and Sch. I, for “or sailor”.",
"2. Subs. by Act 10 of 1927, sec 2 and Sch. I, for “or Navy”.",
"3. Subs. by the A.O. 1950, for “Queen”.",
"4. Subs. by Act 26 of 1955, sec. 117 and Sch., for “transportation for life” (w.e.f.",
1-1-1956).,
"Section 133. Abetment of assault by soldier, sailor or airman on his superior officer,",
when in execution of his office,
"Whoever abets an assault by an office, soldier, [sailor or airman], in the",
1,
"Army, [Navy or Air force] of the [Government of India], on any superior",
2 3,
"officer being in the execution of his office, shall be punished with",
imprisonment of either description for a term which may extend to three,
"years, and shall also be liable to fine.",
CLASSIFICATION OF OFFENCE,
Punishment—Imprisonment for 3 years and fine—Cognizable—Non-Bailable—,
Triable by Magistrate of the first class—Non-compoundable.,
"1. Subs. by Act 10 of 1927, sec. 2 and Sch. I, for “or sailor”.",
"2. Subs. by Act 10 of 1927, sec 2 and Sch. I, for “or Navy”.",
"3. Subs. by the A.O. 1950, for “Queen”.",
"Section 134. Abetment of such assault, if the assault is committed",
"Whoever abets an assault by an officer, soldier, [sailor, or airman], in the",
1,
"Army, [navy or Air force] of the [Government of India], on any superior",
2 3,
"officer being in the execution of his office, shall, if such assault be committed",
in consequence of that abetment be punished with imprisonment of either,
"description for a term which may extend to seven years, and shall also be",
liable to fine.,
CLASSIFICATION OF OFFENCE,
Punishment—Imprisonment for 7 years and fine—Cognizable—Non-bailable—,
Triable by Magistrate of the first class—Non-compoundable.,
"1. Subs. by Act 10 of 1927, sec. 2 and Sch. I, for “or sailor”.",
"2. Subs. by Act 10 of 1927, sec. 2 and Sch. I, for “or Navy”.",
"3. Subs. by the A.O. 1950, for “Queen”.",
"Section 135. Abetment of desertion of soldier, sailor or airman",
"Whoever abets the desertion of any officer, soldier, [sailor or airman], in the",
1,
"Army, [Navy or Air Force] of the [Government of India], shall be punished",
2 3,
with imprisonment of either description for a term which may extend to two,
"years, or with fine, or with both.",
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 2 years, or fine, or both—Cognizable—",
Bailable—Triable by any Magistrate—Non-compoundable.,
"1. Subs. by Act 10 of 1927, sec. 2 and Sch. I, for “or sailor”.",
"2. Subs. by Act 10 of 1927, sec. 2 and Sch. I, for “or Navy”.",
"3. Subs. by the A.O. 1950, for “Queen”.",
Section 136. Harbouring deserter,
"Whoever, except as hereinafter expected, knowing or having reason to believe",
"that an officer, soldier, [sailor or airman], in the Army, [Navy or air force] of",
1 2,
"the [Government of India], has deserted, harbours such officer,",
3,
"soldier, [sailor airman], shall be punished with imprisonment of either",
1,
"description for a term which may extend to two years, or with fine, or with",
both.,
Exception,
This provision does not extend to the case in which the harbour is given by a,
wife to her husband.,
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 2 years, or fine, or both—Cognizable—",
Bailable—Triable by any Magistrate—Non-compoundable.,
"1. Subs. by Act 10 of 1927, sec. 2 and Sch. I, for “or sailor”.",
"2. Subs. by Act 10 of 1927, sec. 2 and Sch. I, for “or Navy”.",
"3. Subs. by the A.O. 1950, for “Queen”.",
Section 137. Deserter concealed on board merchant vessel through negligence of master,
"The master or person in charge of a merchant vessel, on board of which any",
"deserter from the Army, [Navy or Air force] of the [Government of India] is",
1 2,
"concealed, shall, though ignorant of such concealment, be liable to a penalty",
"not exceeding five hundred rupees, if he might have known of such",
concealment but for some neglect of his duty as such master or person in,
"charge, or but for some want of discipline on board of the vessel.",
CLASSIFICATION OF OFFENCE,
Punishment—Fine of 500 rupees—Non-Cognizable—Bailable—Triable by any,
Magistrate—Non-compoundable.,
"1. Subs. by Act 10 of 1927, sec. 2 and Sch. I, for “or Navy”.",
"2. Subs. by the A.O. 1950, for “Queen”.",
"Section 138. Abetment of act of insubordination by soldier, sailor or airman",
"Whoever abets what he knows to be an act of insubordination by an officer,",
"soldier, [sailor or airman], in the Army, [Navy or Air Force] of",
1 2,
"the [Government of India], shall, if such act of insubordination be committed",
3,
"in consequence of that abetment, be punished with imprisonment of either",
"description for a term which may extend to six months, or with fine, or with",
both.,
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 6 months, or fine, or both—Cognizable—",
Bailable—Triable by any Magistrate—Non-compoundable.,
"1. Subs. by Act 10 of 1927, sec. 2 and Sch. I, for “or sailor”.",
"2. Subs. by Act 10 of 1927, sec. 2 and Sch. I, for “or Navy”.",
"3. Subs. by the A.O. 1950, for “Queen”.",
Section 138A. Application of foregoing sections to the Indian Marine Service,
"[Ins. by Act 14 of 1887, sec.79 and Rep. by the Amending Act, 1934 (35 of 1934), s. 2 and Sch.]",
Section 139. Persons subject to certain Acts,
"No person subject to [the Army Act, [the Army Act, 1950 (46 of 1950), or the",
1 2,
"Naval Discipline Act, [ [***] [the Indian Navy (Discipline) Act, 1934 (34 of",
3 4 5,
"1934)], [the Air Force Act [the Air Force Act, 1950 (45 of 1950)]]], is subject",
6 7,
to punishment under this Code for any of the offences defined in this Chapter.,
"1. Subs. by Act 10 of 1927, sec. 2 and Sch. I, for “any Article of War for the",
"Army or Navy of the Queen, or for any part of such Army or Navy”.",
"2. Subs. by Act 3 of 1951, sec. 3 and Sch., for “the Indian Army Act, 1911”.",
"3. Ins. by Act 35 of 1934, sec. 2 and Sch.",
4. The words “or that Act as modified” omitted by the A.O. 1950.,
"5. Now see the Navy Act, 1957 (62 of 1957).",
"6. Subs. by Act 14 of 1932, sec. 130 and Sch., for “or the Air Force Act”.",
"7. Subs. by Act 3 of 1951, sec. 3 and Sch., for “the Indian Air Force Act, 1932”.",
"Section 140. Wearing garb or carrying token used by soldier, sailor or airman",
"Whoever, not being a soldier, [sailor or airman] in the Military, [Naval or",
1 2,
"Air] service of the [Government of India], wears any garb or carries any token",
3,
"resembling any garb or token used by such a soldier, [sailor or airman] with",
1,
"the intention that it may be believed that he is such a soldier, [sailor or",
1,
"airman], shall be punished with imprisonment of either description for a term",
"which may extend to three month, or with fine which may extend to five",
"hundred rupees, or with both",
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 3 months, or fine of 500 rupees, or both—",
Cognizable—Bailable—Triable by any Magistrate—Non- compoundable.,
"1. Subs. by Act 10 of 1927, sec. 2 and Sch. I, for “or sailor”.",
"2. Subs. by Act 10 of 1927, sec. 2 and Sch. I, for “or Navy”.",
"3. Subs. by the A.O. 1950, for “Queen”.",
Section 141. Unlawful assembly,
"An assembly of five or more persons is designated an “unlawful assembly”, if",
the common object of the persons composing that assembly is,
"First.— To overawe by criminal force, or show of criminal force, 1[the Central",
"or any State Government or Parliament or the Legislature of any State], or any",
public servant in the exercise of the lawful power of such public servant; or,
"Second.— To resist the execution of any law, or of any legal process; or",
"Third.— To commit any mischief or criminal trespass, or other offence; or",
"Fourth.— By means of criminal force, or show of criminal force, to any person,",
"to take or obtain possession of any property, or to deprive any person of the",
"enjoyment of a right of way, or of the use of water or other incorporeal right of",
"which he is in possession or enjoyment, or to enforce any right or supposed",
right; or,
"Fifth.— By means of criminal force, or show of criminal force, to compel any",
"person to do what he is not legally bound to do, or to omit to do what he is",
legally entitled to do.,
Explanation,
"An assembly which was not unlawful when it assembled, may subsequently",
become an unlawful assembly.,
"1. Subs. by the A.O. 1950, for “Central or any Provincial Government or",
Legislature”.,
Section 142. Being member of unlawful assembly,
"Whoever, being aware of facts which render any assembly an unlawful",
"assembly, intentionally joins that assembly, or continues in it, is said to be a",
member of an unlawful assembly.,
Section 143. Punishment,
"Whoever is a member of an unlawful assembly, shall be punished with",
"imprisonment of either description for a term which may extend to six month,",
"or with fine, or with both.",
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 6 months, or fine, or both—cognizable—",
Bailable—Triable by any Magistrate—Non-compoundable.,
Section 144. Joining unlawful assembly armed with deadly weapon,
"Whoever, being armed with any deadly weapon, or with anything which, used",
"as a weapon of offence, is likely to cause death, is a member of an unlawful",
"assembly, shall be punished with imprisonment of either description for a",
"term which may extend to two years, or with fine, or with both.",
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 2 years, or fine, or both—Cognizable—",
Bailable—Triable by any Magistrate—Non-compoundable.,
"Section 145. Joining or continuing in unlawful assembly, knowing it has been",
commanded to disperse,
"Whoever joins or continues in an unlawful assembly, knowing that such",
unlawful assembly has been commanded in the manner prescribed by law to,
"disperse, shall be punished with imprisonment of either description for a term",
"which may extend to two years, or with fine, or with both.",
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 2 years, or fine, or both—Cognizable—",
Bailable—Triable by any Magistrate—Non-compoundable.,
Section 146. Rioting,
"Whenever force or violence is used by an unlawful assembly, or by any",
"member thereof, in prosecution of the common object of such assembly, every",
member of such assembly is guilty of the offence of rioting.,
Section 147. Punishment for rioting,
"Whoever is guilty of rioting, shall be punished with imprisonment of either",
"description for a term which may extend to two years, or with fine, or with",
both.,
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 2 years, or fine, or both—Cognizable—",
Bailable—Triable by any Magistrate—Non-compoundable.,
"Section 148. Rioting, armed with deadly weapon",
"Whoever is guilty of rioting, being armed with a deadly weapon or with",
"anything which, used as a weapon of offence, is likely to cause death, shall be",
punished with imprisonment of either description for a term which may,
"extend to three years, or with fine, or with both.",
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 3 years, or fine, or both—Cognizable—",
Bailable—Triable by Magistrate of the first class—Non-compoundable.,
Section 149. Every member of unlawful assembly guilty of offence committed in,
prosecution of common object,
If an offence is committed by any member of an unlawful assembly in,
"prosecution of the common object of that assembly, or such as the members or",
"that assembly knew to be likely to be committed in prosecution of that object,",
"every person who, at the time of the committing of that offence, is a member",
"of the same assembly, is guilty of that offence.",
CLASSIFICATION OF OFFENCE,
Punishment—The same as for the offence—According as offence is cognizable,
or non-cognizable—According as offence is bailable or non-bailable—Triable,
by court by which the offence is triable—Non-compoundable.,
"Section 150. Hiring, or conniving at hiring, of persons to join unlawful assembly",
"Whoever hires or engages, or employs, or promotes, or connives at the hiring,",
engagement or employment of any person to join or become a member of any,
"unlawful assembly, shall be punishable as a member of such unlawful",
"assembly, and for any offence which may be committed by any such person as",
"a member of such unlawful assembly in pursuance of such hiring, engagement",
"or employment, in the same manner as if he had been a member of such",
"unlawful assembly, or himself had committed such offence.",
CLASSIFICATION OF OFFENCE,
"Punishment—The same as for a member of such assembly, and for any offence",
committed by any members of such assembly—Cognizable—According as,
offence is bailable or non-bailable—Triable by court by which the offence is,
triable—Non-compoundable.,
Section 151. Knowingly joining or continuing in assembly of five or more persons after it,
has been commanded to disperse,
Whoever knowingly joins or continues in any assembly of five or more persons,
"likely to cause a disturbance of the public peace, after such assembly has been",
"lawfully commanded to disperse, shall be punished with imprisonment of",
"either description for a term which may extend to six months, or with fine, or",
with both.,
Explanation,
"If the assembly is an unlawful assembly with the meaning of section 141, the",
offender will be punishable under section 145.,
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 6 months, or fine, or both—Cognizable—",
Bailable—Triable by any Magistrate—Non-compoundable.,
"Section 152. Assaulting or obstructing public servant when suppressing riot, etc.",
"Whoever assaults or threatens to assault, or obstructs or attempts to obstruct,",
"any public servant in the discharge of his duty as such public servant, in",
"endeavouring to disperse an unlawful assembly, or to suppress a riot or affray,",
"or uses, or threatens, or attempts to use criminal force to such public servant,",
shall be punishable with imprisonment of either description for a term which,
"may extend to three years, or with fine, or with both.",
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 3 years, or fine, or both—Cognizable—",
Bailable—Triable by Magistrate of the first class—Non-compoundable.,
Section 153. Wantonly giving provocation with intent to cause riot-if rioting be,
committed-if not committed,
"Whoever malignantly, or wantonly, by doing anything which is illegal, gives",
provocation to any person intending of knowing it to be likely that such,
"provocation will cause the offence of rioting to be committed, shall, if the",
"offence of rioting be committed in consequence of such provocation, be",
punished with imprisonment of either description for a term which may,
"extend to one year, or with fine, or with both ; and if the offence of rioting be",
"not committed, imprisonment of either description for a term which may",
"extend to six months, or with fine, or with both.",
CLASSIFICATION OF OFFENCE,
Para I,
"Punishment—Imprisonment for 1 year, or fine, or both—Cognizable—Bailable",
—Triable by any Magistrate—Non-compoundable.,
Para II,
"Punishment—Imprisonment for 6 months, or fine, or both—Cognizable—",
Bailable—Triable by Magistrate of the first class—Non-compoundable.,
"Section 153A. Promoting enmity between different groups on grounds of religion, race,",
"place of birth, residence, language, etc., and doing acts prejudicial to maintenance of",
harmony,
"[153A. Promoting enmity between different groups on grounds of religion,",
1,
"race, place of birth, residence, language, etc., and doing acts prejudicial to",
maintenance of harmony.—(1) Whoever,
"(a) By words, either spoken or written, or by signs or by visible",
"representations or otherwise, promotes or attempts to promote, on grounds of",
"religion, race, place or birth, residence, language, caste or community or any",
"other ground whatsoever, disharmony or feelings of enmity, hatred or ill-will",
"between different religious, racial, language or regional groups or castes or",
"communities, or",
(b) Commits any act which is prejudicial to the maintenance of harmony,
"between different religious, racial, language or regional groups or castes or",
"communities, and which disturbs or is likely to disturb the public tranquility,",
2[or],
"[(c) Organizes any exercise, movement, drill or other similar activity",
2,
intending that the participants in such activity shall use or be trained to use,
criminal force or violence of knowing it to be likely that the participants in,
"such activity will use or be trained to use criminal force or violence, or",
participates in such activity intending to use or be trained to use criminal force,
or violence or knowing it to be likely that the participants in such activity will,
"use or be trained to use criminal force or violence, against any religious, racial,",
language or regional group or caste or community and such activity for any,
reason whatsoever causes or is likely to cause fear or alarm or a feeling of,
"insecurity amongst members of such religious, racial, language or regional",
"group or caste or community,]",
"Shall be punished with imprisonment which may extend to three years, or",
"with fine, or with both.",
"Offence committed in place of worship, etc.— (2) Whoever commits an",
offence specified in sub-section (1) in any place of worship or in any assembly,
"engaged in the performance of religious worship or religious ceremonies, shall",
be punished with imprisonment which may extend to five years and shall also,
be liable to fine.],
CLASSIFICATION OF OFFENCE,
Para I,
"Punishment—Imprisonment for 3 years, or fine, or both—Cognizable—Non-",
bailable—Triable by any Magistrate of the first class—Non-compoundable.,
Para II,
Punishment—Imprisonment for 5 years and fine—Cognizable—Non-bailable—,
Triable by Magistrate of the first class—Non-compoundable.,
"1. Section 153A subs. by Act 41 of 1961, sec. 2 (w.e.f. 12-9-1961) and again subs.",
"by Act 35 of 1969, sec. 2, for the former section (w.e.f. 4-9-1969).",
"2. Ins. by Act 31 of 1972, sec. 2 (w.e.f. 14-6-1972).",
Section 153AA. Punishment for knowingly carrying arms in any procession or,
"organising, or holding or taking part in any mass drill or mass training with arms",
[153AA. Punishment for knowingly carrying arms in any procession or,
1,
"organising, or holding or taking part in any mass drill or mass training with",
arms.—Whoever knowingly carries arms in any procession or organizes or,
holds or takes part in any mass drill or mass training with arms in any public,
place in contravention of any public notice or order issued or made under,
"section 144A of the Code of Criminal Procedure, 1973 shall be punished with",
imprisonment for a term which may extend to six months and with fine which,
may extend to two thousand rupees.,
Explanation,
”Arms” means articles of any description designed or adapted as weapons for,
"offence or defence and includes fire-arms, sharp edged weapons, lathis,",
dandas and sticks.],
CLASSIFICATION OF OFFENCE,
Punishment—Imprisonment for 6 months and fine of 2000 rupees—,
Cognizable—Non-bailable—Triable by any Magistrate—Non-compoundable.,
"1. Ins. by Act 25 of 2005, sec. 44.",
"Section 153B. Imputations, assertions prejudicial to national-integration",
"[153B. Imputations, assertions prejudicial to national-integration.— (1)",
1,
"Whoever, by words either spoken or written or by signs or by visible",
"representations or otherwise, –",
"(a) Makes or publishes any imputation that any class of persons cannot, by",
"reason or their being members of any religious, racial, language or regional",
"group or caste or community, bear true faith and allegiance to Constitution of",
"India as by law established or uphold the sovereignty and integrity of India, or",
"(b) Asserts, counsels, advises, propagates or publishes that any class or",
"persons shall, by reason of their being members of any religious, racial,",
"language or regional group or caste or community, be denied or deprived of",
their rights as citizens of India or,
"(c) makes or publishes any assertion, counsel, plea or appeal concerning the",
"obligation of any class of persons, by reason of their being members of any",
"religious, racial, language or regional group or caste or community, and such",
"assertion, counsel, plea or appeal causes or is likely to cause disharmony or",
feelings of enmity or hatred or ill-will between such members and other,
"persons,",
"shall be punished with imprisonment which may extend to three years, or with",
"fine, or with both.",
"(2) Whoever commits an offence specified in sub-section (1), in any place of",
worship or in any assembly engaged in the performance of religious worship,
"or religious ceremonies, shall be punished with imprisonment which may",
extend to five years and shall also be liable to fine.],
CLASSIFICATION OF OFFENCE,
Para I,
"Punishment—Imprisonment for 3 years, or fine, or both—Cognizable—Non-",
bailable—Triable by Magistrate of the first class—Non-compoundable.,
Para II,
Punishment—Imprisonment for 5 years and fine—Cognizable—Non-bailable—,
Triable by Magistrate of the first class—Non-compoundable.,
"1. Ins. by Act 31 of 1972, sec. 2 (w.e.f. 14-6-1972).",
Section 154. Owner or occupier of land on which an unlawful assembly is held,
"Whenever any unlawful assembly or riot takes place, the owner or occupier of",
"the land upon which such unlawful assembly is held, or such riot is",
"committed, and any person having or claiming an interest in such land, shall",
"be punishable with fine not exceeding one thousand rupees, if he or his agent",
"or manager, knowing that such offence is being or has been committed, or",
"having reason to believe it is likely to be committed, do not give the earliest",
notice thereof in his or their power to the principal officer at the nearest,
"police-station, and do not, in the case of his or their having reason to believe",
"that it was about to be committed, use all lawful means in his or their power to",
"prevent, it and, in the event of its taking place, do not use all lawful means in",
his or their power to disperse or suppress the riot or unlawful assembly.,
CLASSIFICATION OF OFFENCE,
"Punishment—Fine of 1,000 rupees—Non-cognizable—Bailable—Triable by any",
Magistrate—Non-compoundable.,
Section 155. Liability of person for whose benefit riot is committed,
Whenever a riot is committed for the benefit or on behalf of any person who is,
"the owner or occupier of any land, respecting which such riot takes place or",
"who claims any interest in such land, or in the subject of any dispute which",
"gave rise to the riot, or who has accepted or derived any benefit there from,",
"such person shall be punishable with fine, if he or his agent of manage, having",
reason to believe that such riot was likely to be committed or that the unlawful,
"assembly by which such riot was committed was likely to be held, shall not",
respectively use all lawful means in his or their power to prevent such,
"assembly or riot from taking place, and for suppressing and dispersing the",
same.,
CLASSIFICATION OF OFFENCE,
Punishment—Fine—Non-cognizable—Bailable—Triable by any Magistrate—,
Non-compoundable.,
Section 156. Liability of agent of owner of occupier for whose benefit riot is committed,
Whenever a riot is committed for the benefit or on behalf of any person who is,
"the owner or occupier of any land respecting which such riot takes place, or",
"who claims any interest in such land, or in the subject or nay dispute which",
"gave rise to the riot, or who has accepted or derived any benefit there from,",
"the agent or manager or such person shall be punishable with fine, if such",
"agent or manager, having reason to believe that such riot was likely to be",
"committed, or that the unlawful assembly by which such riot was committed",
"was likely to be held, shall not use all lawful means in his power to prevent",
such riot or assembly from taking place and for suppressing and dispersing,
the same.,
CLASSIFICATION OF OFFENCE,
Punishment—Fine—Non-cognizable—Bailable—Triable by any Magistrate—,
Non-compoundable.,
Section 157. Harbouring persons hired for an unlawful assembly,
"Whoever harbours, receives or assembles, in any house or premises in his",
"occupation or charge, or under his control any persons, knowing that such",
"persons have been hired, engaged or employed, or are about to be hired,",
"engaged or employed, to join or become members of an unlawful assembly,",
shall be punished with imprisonment of either description for a term which,
"may extend to six months, or with fine, or with both.",
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 6 months, or fine, or both—Cognizable—",
Bailable—Triable by any Magistrate—Non-compoundable.,
Section 158. Being hired to take part in an unlawful assembly or riot,
"Whoever is engaged, or hired, or offers or attempts to be hired or engaged, to",
"do or assist in doing any of the acts specified in Section 141, shall be punished",
with imprisonment of either description for a term which may extend to six,
"months, or with fine, or with both,",
"or to go armed.— and whoever, being so engaged or hired as aforesaid, goes",
"armed, or engages or offers to go armed, with any deadly weapon or with",
"anything which used as a weapon of offence is likely to cause death, shall be",
punished with imprisonment of either description for a term which may,
"extend to two years, or with fine, or with both.",
CLASSIFICATION OF OFFENCE,
Para I,
"Punishment—Imprisonment for 6 months, or fine, or both—Cognizable—",
Bailable—Triable by any Magistrate—Non-compoundable.,
Para II,
"Punishment—Imprisonment for 2 years, or fine, or both—Cognizable—",
Bailable—Triable by any Magistrate—Non-compoundable.,
Section 159. Affray,
"When two or more persons, by fighting in a public place, disturb the public",
"peace, they are said to “commit an affray”.",
Section 160. Punishment for committing affray,
"Whoever commits an affray, shall be punished with imprisonment of either",
"description for a term which may extend to one month, or with fine which may",
"extend to one hundred rupees, or with both.",
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for one month, or fine of 100 rupees, or both—",
Cognizable—Bailable—Triable by any Magistrate—Non-compoundable.,
Section 161-165A. Repealed,
"[Rep. by the Prevention of Corruption Act, 1988 (49 or 1988), sec. 31.]",
"Section 166. Public servant disobeying law, with intent to cause injury to any person",
"Whoever, being a public servant, knowingly disobeys any direction of the law",
"as to the way in which he is to conduct himself as such public servant,",
"intending to cause, or knowing it to be likely that he will, by such",
"disobedience, cause injury to any person, shall be punished with simple",
"imprisonment for a term which may extend to one year, or with fine, or with",
both.,
Illustration,
"A, being an officer directed by law to take property in execution, in order to",
"satisfy a decree pronounced in Z’s favour by a Court of Justice, knowingly",
"disobeys that direction of law, with the knowledge that he is likely thereby to",
cause injury to Z. A has committed the offence defined in this section.,
CLASSIFICATION OF OFFENCE,
"Punishment—Simple imprisonment for 1 year, or fine, or both—Non-",
cognizable—Bailable—Triable by Magistrate of the first class—Non-,
compoundable.,
1 Section 166A.,
"Whoever, being a public servant,–",
(a ) knowingly disobeys any direction of the law which prohibits him from,
requiring the attendance at any place of any person for the purpose of,
"investigation into an offence or any other matter, or",
"(b ) knowingly disobeys, to the prejudice of any person, any other direction of",
"the law regulating the manner in which he shall conduct such investigation, or",
(c ) fails to record any information given to him under sub-section (1 ) of,
"section 154 of the Code of Criminal Procedure, 1973, in relation to cognizable",
"offence punishable under section 326A, section 326B, section 354, section",
"354B, section 370, section 370A, section 376, section 376A, section 376B,",
"section 376C, section 376D, section 376E or section 509, shall be punished",
with rigorous imprisonment for a term which shall not be less than six months,
"but which may extend to two years, and shall also be liable to fine.",
Section 166B.,
"Whoever, being in charge of a hospital, public or private, whether run by the",
"Central Government, the State Government, local bodies or any other person,",
"contravenes the provisions of section 357C of the Code of Criminal Procedure,",
"1973, shall be punished with imprisonment for a term which may extend to",
one year or with fine or with both],
"1 Inserted by Section 3 of ‘The Criminal Law (Amendment) Act, 2013′",
Section 167. Public servant farming an incorrect document with intent to cause injury,
"Whoever, being a public servant, and being, as [such public servant, charged",
1,
"with the preparation or translation of any document or electronic record,",
"frames, prepares or translates that document or electronic record] in a",
"manner which he knows or believes to be incorrect, intending thereby to cause",
"or knowing it to be likely that he may thereby cause injury to any person, shall",
be punished with imprisonment of either description for a term which may,
"extend to three years, or with fine, or with both.",
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 3 years, or fine, or both—Cognizable—",
Bailable—Triable by Magistrate of the first class—Non-compoundable.,
"1. Subs. by Act 21 of 2000, sec. 91 and Sch. I, for certain words (w.e.f. 17-10-",
2000).,
Section 168. Public servant unlawfully engaging in trade,
"Whoever, being a public servant, and being legally bound as such public",
"servant not to engage in trade, engages in trade, shall be punished with simple",
"imprisonment for a term which may extend to one year, or with fine, or with",
both.,
CLASSIFICATION OF OFFENCE,
"Punishment—Simple imprisonment for 1 year, or fine, or both—Non-",
cognizable—Bailable—Triable by Magistrate of the first class—Non-,
compoundable.,
Section 169. Public servant unlawfully buying or bidding for property,
"Whoever, being a public servant, and being legally bound as such public",
"servant, not to purchase or bid for certain property, purchases or bids for that",
"property, either in his own name or in the name of another, or jointly, or in",
"shares with others, shall be punished with simple imprisonment for a term",
"which may extend to two years, or with fine, or with both; and the property, if",
"purchased, shall be confiscated.",
CLASSIFICATION OF OFFENCE,
"Punishment—Simple imprisonment for 2 years, or fine, or both and",
"confiscation of property, if purchased—Non-cognizable—Bailable—Triable by",
Magistrate of the first class—Non-compoundable.,
Section 170. Personating a public servant,
"Whoever pretends to hold any particular office as a public servant, knowing",
that he does not hold such office or falsely personates any other person,
"holding such office, and in such assumed character does or attempts to do any",
"act under colour of such office, shall be punished with imprisonment of either",
"description for a term which may extend to two years, or with fine, or with",
both.,
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 2 years, or fine, or both—Cognizable—Non-",
bailable—Triable by any Magistrate—Non Compoundable.,
Section 171. Wearing garb or carrying token used by public servant with fraudulent intent,
"Whoever, not belonging to a certain class of public servants, wear any garb or",
carries any token resembling any garb or token used by that class of public,
"servants, with the intention that it may be believed, or with the knowledge that",
"it is likely to be believed, that he belongs to that class of public servants, shall",
be punished with imprisonment of either description for a term which may,
"extend to three months, or with fine which may extend to two hundred rupees,",
or with both.,
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 3 months, or fine of 200 rupees, or both—",
Cognizable—Bailable—Triable by any Magistrate—Non-compoundable.,
"Section 171A. Candidate, Electoral right defined",
"[171A. “Candidate”, “Electoral right” defined.— For the purposes of this",
1,
Chapter,
[(a) “candidate” means a person who has been nominated as a candidate at an,
2,
election;],
"(b) “electoral right” means the right of a person to stand, or not to stand as, or",
"to withdraw from being, a candidate or to vote or refrain from voting at any",
election.],
"1. Section 171A ins. by Act 39 of 1920, sec. 2.",
"2. Subs. by Act 40 of 1975, sec. 9, for clause (a) (w.e.f. 6-8-1975).",
Section 171B. Bribery,
[171B. Bribery.—(1) Whoever,
1,
(i) gives a gratification to any person with the object of inducing him or any,
other person to exercise any electoral right or of rewarding any person for,
having exercised any such right; or,
(ii) accepts either for himself or for any other person any gratification as a,
reward for exercising any such right or for inducing or attempting to induce,
any other person to exercise any such right;,
commits the offence of bribery:,
Provided that a declaration of public policy or a promise of public action shall,
not be an offence under this section.,
"(2) A person who offers, or agrees to give, or offers or attempts to procure, a",
gratification shall be deemed to give a gratification.,
(3) A person who obtains or agrees to accept or attempts to obtain a,
"gratification shall be deemed to accept a gratification, and a person who",
"accepts a gratification as a motive for doing what he does not intend to do, or",
"as a reward for doing what he has not done, shall be deemed to have accepted",
the gratification as a reward.],
"1. Section 171B ins. by Act 39 of 1920, sec. 2.",
Section 171C. Undue influence at elections,
[171C. Undue influence at elections.— (1) Whoever voluntarily interferes or,
1,
attempts to interfere with the free exercise of any electoral right commits the,
offence of undue influence at an election.,
"(2) Without prejudice to the generality of the provisions of sub-section (1),",
whoever,
"(a) threatens any candidate or voter, or any person in whom a candidate or",
"voter is interested, with injury of any kind, or",
(b) induces or attempts to induce a candidate or voter to believe that he or any,
person in whom he is interested will become or will be rendered an object of,
"Divine displeasure or of spiritual censure,",
shall be deemed to interfere with the free exercise of the electoral right of such,
"candidate or voter, within the meaning of sub-section (1).",
"(3) A declaration of public policy or a promise of public action, or the mere",
"exercise of a legal right without intent to interfere with an electoral right, shall",
not be deemed to be interference within the meaning of this section.],
"1. Section 171C ins. by Act 39 of 1920, sec. 2.",
Section 171D. Personation at elections,
[171D. Personation at elections.— Whoever at an election applies for a voting,
1,
"paper or votes in the name of any other person, whether living or dead, or in a",
"fictitious name, or who having voted once at such election applies at the same",
"election for a voting paper in his own name, and whoever abets, procures or",
"attempts to procure the voting by any person in any such way, commits the",
offence or personation at an election:,
[Provided that nothing in this section shall apply to a person who has been,
2,
authorised to vote as proxy for an elector under any law for the time being in,
force in so far as he votes as a proxy for such elector.]],
"1. Section 171D ins. by Act 39 of 1920, sec. 2.",
"2. Ins. by Act 24 of 2003, sec. 5 (w.e.f. 22-9-2003)",
Section 171E. Punishment for bribery,
[171E. Punishment for bribery.— Whoever commits the offence of bribery,
1,
shall be punished with imprisonment of either description for a term which,
"may extend to one year, or with fine, or with both:",
Provided that bribery by treating shall be punished with fine only.,
Explanation,
"“Treating” means that form of bribery where the gratification consists in food,",
"drink, entertainment, or provision.]",
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 1 year, or fine, or both or if treating only, fine",
only—Non-cognizable—Bailable—Triable by Magistrate of the first class—,
Non-compoundable.,
"1. Section 171E ins. by Act 39 of 1920, sec. 2.",
Section 171F. Punishment for undue influence or personation at an election,
[171F. Punishment for undue influence or personation at an election.—,
1,
Whoever commits the offence of undue influence or personation at an election,
shall be punished with imprisonment of either description for a term which,
"may extend to one year or with fine, or with both.]",
CLASSIFICATION OF OFFENCE,
Para I,
"Punishment—Imprisonment for 1 year, or fine, or both or if treating only, fine",
only—Non-cognizable—Bailable—Triable by Magistrate of the first class—,
Non-compoundable.,
Para II,
"Punishment—Imprisonment for 1 year, or fine, or both—Cognizable—Bailable",
—Triable by Magistrate of the first class—Non-compoundable.,
"1. Section 171F ins. by Act 39 of 1920, sec. 2.",
Section 171G. False statement in connection with an election,
[171G. False statement in connection with an election.— Whoever with intent,
1,
to affect the result of an election makes or publishes any statement purporting,
to be a statement of fact which is false and which he either knows or believes,
"to be false or does not believe to be true, in relation to the personal character",
or conduct of any candidate shall be punished with fine.],
CLASSIFICATION OF OFFENCE,
Punishment—Fine—Non-cognizable—Bailable—Triable by Magistrate of the,
first class—Non-compoundable.,
"1. Section 171G ins. by Act 39 of 1920, sec. 2.",
Section 171H. Illegal payments in connection with an election,
[171H. Illegal payments in connection with an election.— Whoever without,
1,
the general or special authority in writing of a candidate incurs or authorises,
"expenses on account of the holding of any public meeting, or upon any",
"advertisement, circular or publication, or in any other way whatsoever for the",
"purpose of promoting or procuring the election of such candidate, shall be",
punished with fine which may extend to five hundred rupees:,
Provided that if any person having incurred any such expenses not exceeding,
the amount of ten rupees without authority obtains within ten days from the,
date on which such expenses were incurred the approval in writing of the,
"candidate, he shall be deemed to have incurred such expenses with the",
authority of the candidate.],
CLASSIFICATION OF OFFENCE,
Punishment—Fine of 500 rupees—Non cognizable—Bailable—Triable by,
Magistrate of the first class—Non-compoundable.,
"1. Section 171H ins. by Act 39 of 1920, sec. 2.",
Section 171I. Failure to keep election accounts,
[171-I. Failure to keep election accounts.— Whoever being required by any law,
1,
for the time being in force or any rule having the force of law to keep accounts,
of expenses incurred at or in connection with an election fails to keep such,
accounts shall be punished with fine which may extend to five hundred,
rupees.],
CLASSIFICATION OF OFFENCE,
Punishment—Fine of 500 rupees—Non-cognizable—Bailable—Triable by,
Magistrate of the first class—Non-compoundable.,
"1. Section 171-I ins. by Act 39 of 1920, sec. 2.",
Section 172. Absconding to avoid service of summons or other proceeding,
"Whoever absconds in order to avoid being served with a summons, notice or",
"order, proceeding from any public servant legally competent, as such public",
"servant, to issue such summons, notice or order, shall be punished with simple",
"imprisonment for a term which may extend to one month, or with fine which",
"may extend to five hundred rupees, or with both;",
"or, if the summons or notice or order is to attend in person or by agent, or",
"to [produce a document or an electronic record in a Court of Justice], with",
1,
"simple imprisonment for a term which may extend to six months, or with fine",
"which may extend to one thousand rupees, or with both.",
CLASSIFICATION OF OFFENCE,
Para I,
"Punishment—Simple imprisonment for 1 month, or fine of 500 rupees, or both",
—Non-cognizable—Bailable—Triable by any Magistrate—Non-compoundable.,
Para II,
"Punishment—Simple imprisonment for 6 months, or fine of 1,000 rupees, or",
both—Non-cognizable—Bailable—Triable by any Magistrate—Non-,
compoundable.,
"1. Subs. by Act 21 of 2000, sec. 91 and Sch. I, for “produce a document in a",
Court of Justice” (w.e.f. 17-10-2000).,
"Section 173. Preventing service of summons or other proceeding, or preventing",
publication thereof,
"Whoever in any manner intentionally prevents the serving on himself, or on",
"any other person, of any summons, notice or order proceeding from any public",
"servant legally competent, as such public servant, to issue such summons,",
"notice or order,",
"or intentionally prevents the lawful affixing to any place of any such summons,",
"notice or order,",
"or intentionally removes any such summons, notice or order from any place to",
"which it is lawfully affixed,",
"or intentionally prevents the lawful making of any proclamation, under the",
"authority of any public servant legally competent, as such public servant, to",
"direct such proclamation to be made,",
shall be punished with simple imprisonment for a term which may extend to,
"one month, or with fine which may extend to five hundred rupees, or with",
both;,
"or, if the summons, notice, order or proclamation is to attend in person or by",
"agent, or [to produce a document or electronic record in a Court of Justice],",
1,
"with simple imprisonment for a term which may extend to six months, or with",
"fine which may extend to one thousand rupees, or with both.",
CLASSIFICATION OF OFFENCE,
Para I,
"Punishment—Simple imprisonment for 1 month, or fine of 500 rupees, or both",
—Non-cognizable—Bailable—Triable by any Magistrate—Non-compoundable.,
Para II,
"Punishment—Simple imprisonment for 6 months, or fine of 1,000 rupees, or",
both—Non-cognizable—Bailable—Triable by any Magistrate—Non-,
compoundable.,
–,
"1. Subs. by Act 21 of 2000, sec. 91 and Sch. I, for “to produce a document in a",
Court of Justice” (w.e.f. 17-10-2000).,
Section 174. Non-attendance in obedience to an order form public servant,
"Whoever, being legally bound to attend in person or by an agent at a certain",
"place and time in obedience to a summons, notice, order or proclamation",
"proceeding from any public servant legally competent, as such public servant,",
"to issue the same,",
"intentionally omits to attend at that place or time, or departs from the place",
where he is bound to attend before the time at which it is lawful for him to,
"depart,",
shall be punished with simple imprisonment for a term which may extend to,
"one month, or with fine which may extend to five hundred rupees, or with",
"both,",
"or, if the summons, notice, order or proclamation is to attend in person or by",
"agent in a Court of Justice, with simple imprisonment for a term which may",
"extend to six months, or with fine which may extend to one thousand rupees,",
or with both.,
Illustrations,
"(a) A, being legally bound to appear before the [High Court] at Calcutta, in",
1,
"obedience to a subpoena issuing from that Court, intentionally omits to",
appear. A has committed the offence defined in this section,
"(b) A, being legally bound to appear before a [District Judge], as a witness, in",
2,
obedience to a summons issued by that [District Judge] intentionally omits to,
2,
appear. A has committed the offence defined in this section.,
CLASSIFICATION OF OFFENCE,
Para I,
"Punishment—Simple imprisonment for 1 month, or fine of 500 rupees, or both",
—Non-cognizable—Bailable—Triable by any Magistrate—Non-compoundable.,
Para II,
"Punishment—Simple imprisonment for 6 months, or fine of 1,000 rupees, or",
both—Non-cognizable—Bailable—Triable by any Magistrate—Non-,
compoundable.,
"1. Subs. by the A.O. 1950, for “Supreme Court”.",
"2. Subs. by the A.O. 1950, for “Zila Judge”.",
Section 174A. Non-appearance in response to a proclamation under section 82 of Act 2 of,
1974,
[174A. Non-appearance in response to a proclamation under section 82 of Act,
1,
2 of 1974.— Whoever fails to appear at the specified place and the specified,
time as required by a proclamation published under sub-section (1) of section,
"82 of the Code of Criminal Procedure, 1973 shall be punished with",
imprisonment for a term which may extend to three years or with fine or with,
"both, and where a declaration has been made under sub-section (4) of that",
"section pronouncing him as a proclaimed offender, he shall be punished with",
imprisonment for a term which may extend to seven years and shall also be,
liable to fine.],
CLASSIFICATION OF OFFENCE,
Para I,
"Punishment—Imprisonment for 3 years or fine, or with both—Cognizable—",
Non-bailable—Triable by Magistrate of the first class—Non-compoundable.,
Para II,
Punishment—Imprisonment for 7 years and fine—Cognizable—Non-bailable—,
Triable by Magistrate of the first class—Non-compoundable.,
"1. Ins. by Act 25 of 2005, sec. 44 (w.e.f. 23-6-2006).",
Section 175. Omission to produce document or electronic record to public servant by,
person legally bound to produce it.,
175. Omission to produce [document or electronic record] to public servant by,
1,
"person legally bound to produce it.—Whoever, being legally bound to produce",
"or deliver up any [document or electronic record] of any public servant, as",
1,
"such, intentionally omits so to produce or deliver up the same, shall be",
punished with simple imprisonment for a term which may extend to one,
"month, or with fine which may extend to five hundred rupees, or with both,",
"or, if the [document or electronic record] is to be produced or delivered up to",
1,
"a Court of Justice, with simple imprisonment for a term which may extend to",
"six months, or with fine which may extend to one thousand rupees, or with",
both.,
Illustration,
"A, being legally bound to produce a document before a [District Court],",
2,
intentionally omits to produce the same. A has committed the offence defined,
in this section.,
CLASSIFICATION OF OFFENCE,
Para I,
"Punishment—Simple imprisonment for 1 month, or fine of 500 rupees, or both",
—Non-cognizable—Bailable—Triable by the Court in which the offence is,
"committed, subject to the provisions of Chapter XXVI or, if not committed in a",
"Court, any Magistrate—Non-compoundable.",
Para II,
"Punishment—Simple imprisonment for 6 months, or fine of 1,000 rupees, or",
both—Non-cognizable—Bailable—Triable by the Court in which the offence is,
"committed, subject to the provisions of Chapter XXVI; or, if not committed in",
"a Court, any Magistrate—Non-compoundable.",
"1. Subs. by Act 21 of 2000, sec. 91 and Sch. I, for “document” (w.e.f. 17-10-",
2000).,
"2 Subs. by the A.O. 1950, for “Zila Court”.",
Section 176. Omission to give notice or information to public servant by person legally,
bound to give it,
"Whoever, being legally bound to give any notice or to furnish information on",
"any subject to any public servant, as such, intentionally omits to give such",
notice or to furnish such information in the manner and at the time required,
"by law, shall be punished with simple imprisonment for a term which may",
"extend to one month, or with fine which may extend to five hundred rupees, or",
with both;,
"or, if the notice or information required to be given respects the commission of",
"an offence, or is required for the purpose of preventing the commission of an",
"offence, or in order to the apprehension of an offender, with simple",
"imprisonment for a term which may extend to six months, or with fine which",
"may extend to one thousand rupees, or with both;",
"[or, if the notice or information required to be given is required by an order",
1,
"passed under sub-section (1) of section 565 of the Code of Criminal Procedure,",
1898 (5 of 1898) with imprisonment of either description for a term which,
"may extend to six months, or with fine which may extend to one thousand",
"rupees, or with both.]",
CLASSIFICATION OF OFFENCE,
Para I,
"Punishment—Simple imprisonment for 1 month, or fine of 500 rupees, or both",
—Non-cognizable—Bailable—Triable by any Magistrate—Non-compoundable.,
Para II,
"Punishment—Simple imprisonment for 6 months, or fine of 1,000 rupees, or",
both—Non-cognizable—Bailable—Triable by any Magistrate—Non-,
compoundable.,
Para III,
"Punishment—Imprisonment for 6 months, or fine of 1,000 rupees, or both—",
Non-cognizable—Bailable—Triable by any Magistrate—Non-compoundable.,
"1. Added by Act 22 of 1939, sec. 2.",
Section 177. Furnishing false information,
"Whoever, being legally bound to furnish information on any subject to any",
"public servant, as such, furnishes, as true, information on the subject which he",
"knows or has reason to believe to be false, shall be punished with simple",
"imprisonment for a term which may extend to six months, or with fine which",
"may extend to one thousand rupees, or with both;",
"or, if the information which he is legally bound to give respects the",
"commission of an offence, or is required for the purpose of preventing the",
"commission of an offence, or in order to the apprehension of an offender, with",
"imprisonment of either description for a term which may extend to two years,",
"or with fine, or with both.",
Illustrations,
"(a) A, a landholder, knowing of the commission of a murder within the limits",
"of his estate, willfully misinforms the Magistrate of the district that the death",
has occurred by accident in consequence of the bite of a snake. A is guilty of,
the offence defined in this section,
"(b) A, a village watchman, knowing that a considerable body of strangers has",
"passed through his village in order to commit a dacoity in the house of Z, a",
"wealthy merchant residing in a neighbouring place, and being being bound",
"under clause 5, section VII, [Regulation III, 1821], of the Bengal Code, to give",
1,
early and punctual information of the above fact to the officer of the nearest,
"police-station, willfully misinforms the police-officer that a body of suspicious",
characters passed through the village with a view to commit dacoity in a,
certain distant place in a different direction. Here A is guilty of the offence,
defined in the later part of this section.,
Explanation,
2,
In section 176 and in this section the word “offence” includes any act,
"committed at any place out of [India], which, if committed in [India], would",
3 3,
"be punishable under any of the following sections, namely, 302, 304, 382,",
"392, 393, 394, 395, 396, 397, 398, 399, 402, 435, 436, 449, 450, 457, 458, 459",
and 460; and the word “offender” includes any person who is alleged to have,
been guilty of any such act.,
CLASSIFICATION OF OFFENCE,
Para I,
"Punishment—Imprisonment for 6 months, or fine of 1,000 rupees, or both—",
Non-cognizable—Bailable—Triable by any Magistrate—Non-compoundable.,
Para II,
"Punishment—Imprisonment for 2 years, or fine, or both—Non-cognizable—",
Bailable—Triable by any Magistrate—Non-compoundable.,
1. Rep. by Act 17 of 1862.,
2. Added by Act 3 of 1894.,
"3. The words “British India” have successively been subs. by the A.O. 1948, the",
"A.O. 1950 and Act 3 of 1951, sec. 3 and Sch. to read as above.",
Section 178. Refusing oath or affirmation when duly required by public servant to make,
it,
"Whoever refuses to bind himself by an oath [or affirmation] to state the truth,",
1,
when required so to bind himself by a public servant legally competent to,
"require that he shall so bind himself, shall be punished with simple",
"imprisonment for a term which may extend to six months, or with fine which",
"may extend to one thousand rupees, or with both.",
CLASSIFICATION OF OFFENCE,
"Punishment—Simple imprisonment for 6 months, or fine of 1,000 rupees, or",
both—Non-cognizable—Bailable—Triable by the court in which the offence is,
"committed, subject to the provisions of Chapter XXVI; or, if not committed in",
"a court, any Magistrate—Non-compoundable.",
1. Rep. by Act 17 of 1862.,
Section 179. Refusing to answer public servant authorised to question,
"Whoever, being legally bound to state the truth on any subject to any public",
"servant, refuses to answer any question demanded of him touching that",
subject by such public servant in the exercise of the legal powers of such public,
"servant, shall be punished with simple imprisonment for a term which may",
"extend to six months, or with fine which may extend to one thousand rupees,",
or with both.,
CLASSIFICATION OF OFFENCE,
"Punishment—Simple imprisonment for 6 months, or fine of 1,000 rupees, or",
both—Non-cognizable—Bailable—Triable by the court in which the offence is,
"committed, subject to the provisions of Chapter XXVI; or, if not committed in",
"a court, any Magistrate—Non-compoundable.",
Section 180. Refusing to sign statement,
"Whoever refuses to sign any statement made by him, when required to sign",
that statement by a public servant legally competent to require that he shall,
"sign that statement, shall be punished with simple imprisonment for a term",
"which may extend to three months, or with fine which may extend to five",
"hundred rupees, or with both.",
CLASSIFICATION OF OFFENCE,
"Punishment—Simple imprisonment for 3 months, or fine of 500 rupees, or",
both—Non-cognizable—Bailable—Triable by the court in which the offence is,
"committed, subject to the provisions of Chapter XXVI; or, if not committed in",
"a court, any Magistrate—Non-compoundable.",
Section 181. False statement on oath or affirmation to public servant or person,
authorised to administer an oath or affirmation,
"Whoever, being legally bound by an oath [or affirmation] to state the truth on",
1,
any subject to any public servant or other person authorized by law to,
"administer such oath [or affirmation], makes, to such public servant or other",
2,
"person as aforesaid, touching the subject, any statement which is false, and",
"which he either knows or believes to be false or does not believe to be true,",
shall be punished with imprisonment of either description for a term which,
"may extend to three years, and shall also be liable to fine.",
CLASSIFICATION OF OFFENCE,
Punishment—Imprisonment for 3 years and fine—Non-cognizable—Bailable—,
Triable by Magistrate of the first class—Non-compoundable.,
–,
"1. Ins. by Act 10 of 1873, sec. 15.",
"2. Ins. by Act 10 of 1873, sec. 15.",
"Section 182. False information, with intent to cause public servant to use his lawful",
power to the injury of another person,
"[182. False information, with intent to cause public servant to use his lawful",
1,
power to the injury of another person.— Whoever gives to any public servant,
"any information which he knows or believes to be false, intending thereby to",
"cause, or knowing it to be likely that he will thereby cause, such public servant",
(a) to do or omit anything which such public servant ought not to do or omit if,
the true state of facts respecting which such information is given were known,
"by him, or",
(b) to use the lawful power of such public servant to the injury or annoyance of,
"any person,",
shall be punished with imprisonment of either description for a term which,
"may extend to six months, or with fine which may extend to one thousand",
"rupees, or with both.",
Illustrations,
"(a) A informs a Magistrate that Z, a police-officer, subordinate to such",
"Magistrate, has been guilty of neglect of duty or misconduct, knowing such",
"information to be false, and knowing it to be likely that the information will",
cause the Magistrate to dismiss Z. A has committed the offence defined in this,
section.,
(b) A falsely informs a public servant that Z has contraband salt in a secret,
"place knowing such information to be false, and knowing that it is likely that",
"the consequence of the information will be a search of Z’s premises, attended",
with annoyance to Z. A has committed the offence defined in this section.,
(c) A falsely informs a policeman that he has been assaulted and robbed in the,
neighbourhood of a particular village. He does not mention the name of any,
"person as one of his assistants, but knows it to be likely that in consequence of",
this information the police will make enquiries and institute searches in the,
village to the annoyance of the villages or some of them. A has committed an,
offence under this section.],
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 6 months or fine of 1,000 rupees, or both—",
Non-cognizable—Bailable—Triable by any Magistrate—Non-compoundable.,
"1. Subs. by Act 3 of 1895, sec. 1, for the original section.",
Section 183. Resistance to the taking of property by the lawful authority of a public,
servant,
Whoever offers any resistance to the taking of any property by the lawful,
"authority of any public servant, knowing or having reason to believe that he is",
"such public servant, shall be punished with imprisonment of either",
"description for a term which may extend to six months, or with fine which may",
"extend to one thousand rupees, or with both.",
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 6 months or fine of 1,000 rupees, or both—",
Non-cognizable—Bailable—Triable by any Magistrate—Non-compoundable.,
Section 184. Obstructing sale of property offered for sale by authority of public servant,
Whoever intentionally obstructs any sale of property offered for sale by the,
"lawful authority of any public servant as such, shall be punished with",
imprisonment of either description for a term which may extend to one,
"month, or with fine which may extend to five hundred rupees, or with both.",
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 1 month or fine of 500 rupees, or both—Non-",
cognizable—Bailable—Triable by any Magistrate—Non-compoundable.,
Section 185. Illegal purchase or bid for property offered for sale by authority of public,
servant,
"Whoever, at any sale of property held by the lawful authority of a public",
"servant, as such, purchases or bids for any property on account of any person,",
"whether himself or any other, whom he knows to be under a legal incapacity to",
"purchase that property at that sale, or bids for such property not intending to",
"perform the obligations under which he lays himself by such bidding, shall be",
punished with imprisonment of either description for a term which may,
"extend to one month, or with fine which may extend to two hundred rupees, or",
with both.,
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 1 month, or fine of 200 rupees, or both—Non-",
cognizable—Bailable—Triable by any Magistrate—Non-compoundable.,
Section 186. Obstructing public servant in discharge of public functions,
Whoever voluntarily obstructs any public servant in the discharge of his public,
"functions, shall be punished with imprisonment of either description for a",
"term which may extend to three months, or with fine which may extend to five",
"hundred rupees, or with both.",
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 3 months, or fine of 500 rupees, or both—",
Non-cognizable—Bailable—Triable by any Magistrate—Non-compoundable.,
State Amendment,
Andhra Pradesh,
Offence under section 186 is cognizable.,
"[Vide A.P.G.O. Ms. No. 732, dated 5th December, 1991]",
Section 187. Omission to assist public servant when bound by law to give assistance,
"Whoever, being bound by law to render or furnish assistance to any public",
"servant in the execution of his public duty, intentionally omits to give such",
"assistance, shall be punished with simple imprisonment for a term which may",
"extend to one month, or with fine which may extend to two hundred rupees, or",
with both;,
and if such assistance be demanded to him by a public servant legally,
competent to make such demand for the purposes of executing any process,
"lawfully issued by a Court of Justice, or of preventing the commission of an",
"offence, or of suppressing a riot, or affray, or of apprehending a person",
"charged with or guilty of an offence, or of having escaped from lawful custody,",
shall be punished with simple imprisonment for a term which may extend to,
"six months, or with fine which may extend to five hundred rupees, or with",
both.,
CLASSIFICATION OF OFFENCE,
Para I,
"Punishment—Simple imprisonment for 1 month, or the fine of 200 rupees, or",
both—Non-cognizable—Bailable—Triable by any Magistrate—Non-,
compoundable.,
Para II,
"Punishment—Simple imprisonment for 6 months, or fine of 500 rupees, or",
both—Non-cognizable—Bailable—Triable by any Magistrate—Non-,
compoundable.,
Section 188. Disobedience to order duly promulgated by public servant,
"Whoever, knowing that, by an order promulgated by a public servant lawfully",
"empowered to promulgate such order, he is directed to abstain from a certain",
"act, or to take certain order with certain property in his possession or under",
"his management, disobeys such direction,",
"shall, if such disobedience causes to tender to cause obstruction, annoyance or",
"injury, or risk of obstruction, annoyance of injury, to any persons lawfully",
"employed, be punished with simple imprisonment for a term which may",
"extend to one month or with fine which may extend to two hundred rupees, or",
with both;,
"and if such disobedience causes or trends to cause danger to human life,",
"health or safety, or causes or tends to cause a riot or affray, shall be punished",
with imprisonment of either description for a term which may extend to six,
"months, or with fine which may extend to one thousand rupees, or with both.",
Explanation,
"It is not necessary that the offender should intend to produce harm, or",
contemplate his disobedience as likely to produce harm. It is sufficient that he,
"knows of the order which he disobeys, and that his disobedience produces, or",
"is likely to produce, harm.",
Illustration,
An order is promulgated by a public servant lawfully empowered to,
"promulgate such order, directing that a religious procession shall not pass",
"down a certain street. A knowingly disobeys the order, and thereby causes",
danger of riot. A has committed the offence defined in this section.,
CLASSIFICATION OF OFFENCE,
Para I,
"Punishment—Simple imprisonment for 1 month, or fine of 200 rupees, or",
both—Cognizable—Bailable—Triable by any Magistrate—Non-compoundable.,
Para II,
"Punishment—Imprisonment for 6 months, or fine of 1,000 rupees, or both—",
Cognizable—Bailable—Triable by any Magistrate—Non-compoundable.,
Section 189. Threat of injury to public servant,
"Whoever holds out any threat of injury to any public servant, or to any person",
"in whom he believes that public servant to be interested, for the purpose of",
"inducing that public servant to do any act, or to forbear or delay to do any act,",
"connected with the exercise of the public functions of such public servant,",
shall be punished with imprisonment of either description for a term which,
"may extend to two years, or with fine, or with both.",
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 2 years, or fine, or both—Non-cognizable—",
Bailable—Triable by any Magistrate—Non-compoundable.,
State Amendments,
Andhra Pradesh,
In Andhra Pradesh offence under section 189 is cognizable.,
"[Vide A.P.G.O. Ms. No. 732, dated 5th December, 1991]",
Section 190. Threat of injury to induce person to refrain from applying for protection to,
public servant,
Whoever holds out any threat of injury to any person for the purpose of,
inducing that person to refrain or desist from making a legal application for,
protection against any injury to any public servant legally empowered as such,
"to give such protection, or to cause such protection to be given, shall be",
punished with imprisonment of either description for a term which may,
"extend to one year, or with fine, or with both.",
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 1 year, or fine, or both—Non-cognizable—",
Bailable—Triable by any Magistrate—Non-compoundable.,
State Amendment,
Andhra Pradesh,
Offence under section 190 is cognizable.,
"[Vide A.P.G.O. Ms. No. 732, dated 5th December, 1991].",
Section 191. Giving false evidence,
"Whoever, being legally bound by an oath or by an express provision of law to",
"state the truth, or being bound by law to make a declaration upon any subject,",
"makes any statement which is false, and which he either knows or believes to",
"be false or does not believe to be true, is said to give false evidence.",
Explanation 1,
"A statement is within the meaning of this section, whether it is made verbally",
or otherwise.,
Explanation 2,
A false statement as to the belief of the person attesting is within the meaning,
"of this section, and a person may be guilty of giving false evidence by stating",
"that he believes a thing which he does not believe, as well as by stating that he",
knows a thing which he does not know.,
Illustrations,
"(a) A, in support of a just claim which B has against Z for one thousand",
"rupees, falsely swears on a trial that he heard Z admit the justice of B’s claim.",
A has given false evidence.,
"(b) A, being bound by an oath to state the truth, states that he believes a",
"certain signature to be the handwriting of Z, when he does not believe it to be",
"the handwriting of Z. Here A states that which he knows to be false, and",
therefore gives false evidence.,
"(c) A, knowing the general character of Z’s handwriting, states that he believes",
a certain signature to be the handwriting of Z; A in good faith believing it to be,
"so. Here A’s statement is merely as to his belief, and is true as to his belief, and",
"therefore, although the signature may not be the handwriting of Z, A has not",
given false evidence.,
"(d) A, being bound by an oath to state the truth, states that he knows that Z",
"was at a particular place on a particular day, not knowing anything upon the",
subject. A gives false evidence whether Z was at that place on the day named,
or not.,
"(e) A, an interpreter or translator, gives or certifies as a true interpretation or",
translation of a statement or document which he is bound by oath to interpret,
"or translate truly, that which is not and which he does not believed to be a true",
interpretation or translation. A has given in false evidence.,
Section 192. Fabricating false evidence,
Whoever causes any circumstance to exist or [makes any false entry in any,
1,
"book or record or Electronic Record, or makes any document or Electronic",
"Rercord containing a false statement], intending that such circumstance, false",
"entry or false statement may appear in evidence in a judicial proceeding, or in",
"a proceeding taken by law before a public servant as such, or before an",
"arbitrator, and that such circumstance, false entry or false statement, so",
"appearing in evidence, may cause any person who in such proceeding is to",
"form an opinion upon the evidence, to entertain an erroneous opinion",
"touching any point material to the result of such proceeding, is said “to",
fabricate false evidence”.,
Illustrations,
"(a) A puts jewels into a box belonging to Z, with the intention that they may be",
"found in that box, and that this circumstance may cause Z to be convicted of",
theft. A has fabricated false evidence.,
(b) A makes a false entry in his shop-book for the purpose of using it as,
corroborative evidence in a Court of Justice. A has fabricated false evidence.,
"(c) A, with the intention of causing Z to be convicted of a criminal conspiracy,",
"writes a letter in imitation of Z’s handwriting, purporting to be addressed to",
"an accomplice in such criminal conspiracy, and puts the letter in a place which",
he knows that the officers of the Police are likely to search. A has fabricated,
false evidence.,
–,
"1. Subs. by Act 21 of 2000, sec. 91 and Sch. I, for certain words (w.e.f. 17-10-",
2000).,
Section 193. Punishment for false evidence,
Whoever intentionally gives false evidence in any stage of a judicial,
"proceeding, or fabricates false evidence for the purpose of being used in any",
"stage of a judicial proceeding, shall be punished with imprisonment of either",
"description for a term which may extend to seven years, and shall also be",
"liable to fine,",
"and whoever intentionally gives or fabricates false evidence in any other case,",
shall be punished with imprisonment of either description for a term which,
"may extend to three years, and shall also be liable to fine.",
Explanation 1,
A trial before a Court-martial; [* * *] is a judicial proceeding.,
1,
Explanation 2,
An investigation directed by law preliminary to a proceeding before a Court of,
"Justice, is a stage of a judicial proceeding, though that investigation may not",
take place before a Court of Justice.,
Illustration,
"A, in an enquiry before a Magistrate for the purpose of ascertaining whether Z",
"ought to be committed for trial, makes on oath a statement which he knows to",
"be false. A this enquiry is a stage of a judicial proceeding, A has given false",
evidence.,
Explanation 3,
"An investigation directed by a Court of Justice, according to law, and",
"conducted under the authority of a Court of Justice, is a stage of a judicial",
"proceeding, though that investigation may not take place before a Court of",
Justice.,
Illustration,
"A, in any enquiry before an officer deputed by a Court of Justice to ascertain",
"on the spot the boundaries of land, makes on oath a statement which he knows",
to be false. As this enquiry is a stage of a judicial proceeding. A has given false,
evidence.,
CLASSIFICATION OF OFFENCE,
Para I,
Punishment—Imprisonment for 7 years and fine—Non-cognizable—Bailable—,
Triable by Magistrate of the first class—Non-compoundable.,
Para II,
Punishment—Imprisonment for 3 years and fine—Non-cognizable—Bailable—,
Triable by any Magistrate.,
–,
"1. The words “or before a Military Court of Request” omitted by Act 13 of 1889,",
sec. 2 and Sch.,
Section 194. Giving or fabricating false evidence with intent to procure conviction of,
capital offence,
"Whoever gives or fabricates false evidence, intending thereby to cause, or",
"knowing it to be likely that he will thereby cause, any person to be convicted of",
an offence which is capital [by the law for the time being in force in [India]],
1 2,
"shall be punished with [imprisonment for life], or with rigorous",
3,
"imprisonment for a term which may extend to ten years, and shall also be",
liable to fine;,
if innocent person be thereby convicted and executed.— and if an,
innocent person be convicted and executed in consequence of such false,
"evidence, the person who gives such false evidence shall be punished either",
with death or the punishment hereinbefore described.,
CLASSIFICATION OF OFFENCE,
Para I,
"Punishment—Imprisonment for life, or rigorous imprisonment for 10 years",
and fine—Non-cognizable—Non-bailable—Triable by Court of Session—Non-,
compoundable.,
Para II,
Punishment—Death or as above—Non-cognizable—Non-bailable—Triable by,
Court of Session—Non-compoundable.,
"1. Subs. by the A.O. 1948, for “by the law of British India or England”.",
"2. Subs. by Act 3 of 1951, sec. 3 and Sch., for “the States”.",
"3. Subs. by Act 26 of 1955, sec. 117 and Sch., for “transportation for life” (w.e.f.",
1-1-1956).,
Section 195. Giving or fabricating false evidence with intent to procure conviction of,
offence punishable with imprisonment for life or imprisonment,
"Whoever gives or fabricates false evidence intending thereby to cause, or",
"knowing it to be likely that he will thereby cause, any person to be convicted of",
an offence which [by the law for the time being in force in [India] is not,
1 2,
"capital, but punishable with [imprisonment for life], or imprisonment for a",
3,
"term of seven years or upwards, shall be punished as a person convicted of",
that offence would be liable to be punished.,
Illustration,
A gives false evidence before a Court of Justice intending thereby to cause Z to,
be convicted of a dacoity. The punishment of dacoity is [imprisonment for,
3,
"life], or rigorous imprisonment for a term which may extend to ten years, with",
"or without fine. A, therefore, is liable to [imprisonment for life] or",
3,
"imprisonment, with or without fine.",
CLASSIFICATION OF OFFENCE,
Punishment—The same as for the offence—Non-cognizable—Non-bailable—,
Triable by Court of Session—Non-compoundable.,
"1. Subs. by the A.O. 1948, for “by the law of British India or England”.",
"2. Subs. by Act 3 of 1951, sec. 3 and Sch., for “the States”.",
"3. Subs. by Act 26 of 1955, sec. 117 and Sch., for “transportation for life” (w.e.f.",
1-1-1956).,
Section 195A. Threatening any person to give false evidence,
[195A. [Threatening any person to give false evidence].— Whoever threatens,
1 2,
"another with any injury to his person, reputation or property or to the person",
"or reputation of any one in whom that person is interested, with intent to",
cause that person to give false evidence shall be punished with imprisonment,
"of either description for a term which may extend to seven years, or with fine,",
or with both;,
and if innocent person is convicted and sentenced in consequence of such false,
"evidence, with death or imprisonment for more than seven years, the person",
who threatens shall be punished with the same punishment and sentence in,
the same manner and to the same extent such innocent person is punished,
and sentenced.],
CLASSIFICATION OF OFFENCE,
Para I,
Punishment—Imprisonment for 7 years or fine or both—Cognizable—Non-,
bailable—Triable by Court by which offence of giving false evidence is triable—,
Non-compoundable.,
Para II,
Punishment—Same as for the offence for which the false evidence was given—,
Cognizable—Non-bailable—Triable by Court by which offence of giving false,
evidence is triable—Non-compoundable.,
"1. Ins. by Act 2 of 2006, sec. 2 (w.e.f. 16-4-2006).",
"2. Corrected vide Corrigendum, dated 3rd March, 2006.",
Section 196. Using evidence known to be false,
Whoever corruptly uses or attempts to use as true or genuine evidence any,
"evidence which he knows to be false or fabricated, shall be punished in the",
same manner as if he gave or fabricated false evidence.,
CLASSIFICATION OF OFFENCE,
Punishment—The same as for the giving or fabricating false evidence—Non-,
cognizable—According as offence of giving such evidence is bailable or non-,
bailable—Triable by court by which offence of giving or fabricating false,
evidence is triable—Non-compoundable.,
Section 197. Issuing or signing false certificate,
"Whoever issues or signs any certificate required by law to be given or signed,",
or relating to any fact of which such certificate is by law admissible in,
"evidence, knowing or believing that such certificate is false in any material",
"point, shall be punished in the same manner as if he gave false evidence.",
CLASSIFICATION OF OFFENCE,
Punishment—The same as for the giving or fabricating false evidence—Non-,
cognizable—Bailable.—Triable by court by which offence of giving false,
evidence is triable—Non-compoundable.,
Section 198. Using as true a certificate known to be false,
Whoever corruptly uses or attempts to use any such certificate as a true,
"certificate, knowing the same to be false in any material point, shall be",
punished in the same manner as if he gave false evidence.,
CLASSIFICATION OF OFFENCE,
Punishment—The same as for the giving or fabricating false evidence—Non-,
cognizable—Bailable—Triable by court by which offence of giving false,
evidence is triable—Non-compoundable.,
Section 199. False statement made in declaration which is by law receivable as evidence,
"Whoever, in any declaration made or subscribed by him, which declaration",
"any Court of Justice, or any public servant or other person, is bound or",
"authorized by law to receive as evidence of any fact, makes any statement",
"which is false, and which he either knows or believes to be false or does not",
"believe to be true, touching any point material to the object for which the",
"declaration is made or used, shall be punished in the same manner as if he",
gave false evidence.,
CLASSIFICATION OF OFFENCE,
Punishment—The same as for the giving or fabricating false evidence—Non-,
cognizable-Bailable—Triable by court by which offence of giving false evidence,
is triable—Non-compoundable.,
Section 200. Using as true such declaration knowing it to be false,
"Whoever corruptly uses or attempts to use as true any such declaration,",
"knowing the same to be false in any material point, shall be punished in the",
same manner as if he gave false evidence.,
Explanation,
A declaration which is inadmissible merely upon the ground of some,
"informality, is a declaration within the meaning of sections 199 to 200.",
CLASSIFICATION OF OFFENCE,
Punishment—The same as for giving or fabricating false evidence—Non-,
cognizable—Bailable—Triable by court by which offence of giving false,
evidence is triable—Non-compoundable.,
"Section 201. Causing disappearance of evidence of offence, or giving false information to",
screen offender,
"Whoever, knowing or having reason to believe that an offence has been",
"committed, causes any evidence of the commission of that offence to",
"disappear, with the intention of screening the offender from legal punishment,",
or with that intention gives any information respecting the offence which he,
knows or believes to be false;,
"if a capital offence.—shall, if the offence which he knows or believes to have",
"been committed is punishable with death, be punished with imprisonment of",
"either description for a term which may extend to seven years, and shall also",
be liable to fine;,
if punishable with imprisonment for life.—and if the offence is,
"punishable with 1[imprisonment for life], or with imprisonment which may",
"extend to ten years, shall be punished with imprisonment of either description",
"for a term which may extend to three years, and shall also be liable to fine;",
if punishable with less than ten years’ imprisonment.—and if the,
offence is punishable with imprisonment for any term not extending to ten,
"years, shall be punished with imprisonment of the description provided for the",
"offence, for a term which may extend to one-fourth part of the longest term of",
"the imprisonment provided for the offence, or with fine, or with both.",
Illustration,
"A, knowing that B has murdered Z, assists B to hide the body with the",
intention of screening B from punishment. A is liable to imprisonment of,
"either description for seven years, and also to fine.",
CLASSIFICATION OF OFFENCE,
Para I,
Punishment—Imprisonment for 7 years and fine—According as the offence in,
relation to which disappearance of evidence is caused is cognizable or non-,
cognizable—Bailable—Triable by Court of Session—Non-compoundable.,
Para II,
Punishment—Imprisonment for 3 years and fine—Non-cognizable—Bailable—,
Triable by Magistrate of the first class—Non-compoundable.,
Para III,
Punishment—Imprisonment for a quarter of the longest term provided for the,
"offence, or fine or both—Non-cognizable—Bailable—Triable by court by which",
the offence is triable—Non-compoundable.,
–,
"1. Subs. by Act 26 of 1955, sec. 117 and Sch., for “transportation for life” (w.e.f.",
1-1-1956).,
Section 202. Intentional omission to give information of offence by person bound to,
inform,
"Whoever, knowing or having reason to believe that an offence has been",
"committed, intentionally omits to give any information respecting that offence",
"which he is legally bound to give, shall be punished with imprisonment of",
"either description for a term which may extend to six months, or with fine, or",
with both.,
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 6 months, or fine, or both—Non-cognizable—",
Bailable—Triable by any Magistrate—Non-compoundable.,
Section 203. Giving false information respecting an offence committed,
Whoever knowing or having reason to believe that an offence has been,
"committed, gives any information respecting that offence which he knows or",
"believes to be false, shall be punished with imprisonment of either description",
"for a term which may extend to two year, or with fine, or with both.",
"[Explanation.—In sections 201 and 202 and in this section the word “offence”,",
1,
"includes any act committed at any place out of 2[India], which, if committed",
"in [India], would be punishable under any of the following sections, namely,",
2,
"302, 304, 382, 392 393, 394, 395, 396, 397, 398, 399, 402, 435, 436, 449,",
"450, 457, 458, 459 and 460.]",
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 2 years, or fine, or both—Non-cognizable—",
Bailable—Triable by any Magistrate—Non-compoundable.,
–,
"1. Added by Act 3 of 1894, sec. 6.",
"2. The words “British India” have successively been subs. by the A.O. 1948, the",
"A.O. 1950 and Act 3 of 1951, sec. 3 and Sch., to read as above.",
Section 204. Destruction of document or electronic record to prevent its production as,
sevidence,
Destruction of [document or electronic record] to prevent its production as,
1,
sevidence.— Whoever secretes or destroys any [document or Electronic,
1,
Record] which he may be lawfully compelled to produce as evidence in a Court,
"of Justice, or in any proceeding lawfully held before a public servant, as such,",
or obliterates or renders illegible the whole or any part of such [document or,
1,
Electronic Record] with the intention of preventing the same from being,
"produced or used as evidence before such Court or public servant as aforesaid,",
or after he shall have been lawfully summoned or required to produce the,
"same for that purpose, shall be punishable with imprisonment of either",
"description for a term which may extend to two years, or with fine, or with",
both.,
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 2 years, or fine, or both—Non-cognizable—",
Bailable—Triable by Magistrate of the first class—Non-compoundable.,
–,
"1. Subs. by Act 21 of 2000, sec. 91 and Sch. I, for “document” (w.e.f. 17-10-",
2000).,
Section 205. False personation for purpose of act or proceeding in suit or prosecution,
"Whoever falsely personates another, and in such assumed character makes",
"any admission or statement, or confesses judgment, or causes any process to",
"be issued or becomes bail or security, or does any other act in any suit or",
"criminal prosecution, shall be punished with imprisonment of either",
"description for a term which may extend to three years or with fine, or with",
both.,
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 3 years, or fine, or both—Non-cognizable—",
Bailable—Triable by Magistrate of the first class—Non-compoundable.,
Section 206. Fraudulent removal or concealment of property to prevent its seizure as,
forfeited or in execution,
"Whoever fraudulently removes, conceals, transfers or delivers to any person",
"any property or any interest therein, intending thereby to prevent that",
property or interest therein from being taken as a forfeiture or in satisfaction,
"of a fine, under a sentence which has been pronounced, or which he knows to",
"be likely to be pronounced, by a Court of Justice or other competent authority,",
"or from being taken in execution of a decree or order which has been made, or",
"which he knows to be likely to be made by a Court of Justice in a civil suit,",
shall be punished with imprisonment of either description for a term which,
"may extend to two years, or with fine, or with both.",
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 2 years, or fine, or both—Non-cognizable—",
Bailable—Triable by any Magistrate—Non-compoundable.,
Section 207. Fraudulent claim to property to prevent its seizure as forfeited or in,
execution,
"Whoever fraudulently accepts, receives or claims any property or any interest",
"therein, knowing that he has no right or rightful claim to such property or",
"interest, or practices any deception touching any right to any property or any",
"interest therein, intending thereby to prevent that property or interest therein",
"from being taken as a forfeiture or a satisfaction of a fine, under a sentence",
"which has been pronounced, or which he knows to be likely to be pronounced",
"by a Court of Justice or other competent authority, or from being taken in",
execution of a decree or order which has been made or which knows to be,
"likely to be made by a Court of Justice in a civil suit, shall be punished with",
"imprisonment of either description for a term which may extend to two years,",
"or with fine, or with both.",
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 2 years, or fine, or both—Non-cognizable—",
Bailable—Triable by any Magistrate—Non-compoundable.,
Section 208. Fraudulently suffering decree for sum not due,
Whoever fraudulently causes or suffer a decree or order to be passed against,
him at the suit of any person for a sum not due or for a larger sum than is due,
to such person or for any property or interest in property to which such person,
"is not entitled, or fraudulently causes or suffers a decree order to be executed",
"against him after it has been satisfied, or for anything in respect of which it",
"has been satisfied, shall be punished with imprisonment of either description",
"for a term which may extend to two years, or with fine, or with both.",
Illustration,
A institutes a suit against Z. Z knowing that A is likely to obtain a decree,
"against him, fraudulently suffers a judgment to pass against him for a larger",
"amount at the suit of B, who has no just claim against him, in order that B,",
"either on his own account or for the benefit of Z, may share in the proceeds of",
any sale of Z’s property which may be made under A’s decree. Z has committed,
an office under this section.,
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 2 years, or fine, or both—Non-cognizable—",
Bailable—Triable by Magistrate of the first class—Non-compoundable.,
Section 209. Dishonestly making false claim in Court,
"Whoever fraudulently or dishonestly, or with intent to injure or any person,",
"makes in a Court of Justice any claim which he knows to be false, shall be",
punished with imprisonment of either description for a term which may,
"extend to two years, and shall also be liable to fine.",
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 2 years, or fine, or both—Non-cognizable—",
Bailable—Triable by Magistrate of the first class—Non-compoundable.,
Section 210. Fraudulently obtaining decree for sum not due,
Whoever fraudulently obtains a decree or order against any person for a sum,
"not due or for a larger sum than is due, or for any property or interest in",
"property to which he is not entitled, or fraudulently causes a decree or order to",
be executed against any person after it has been satisfied or for anything in,
"respect of which it has been satisfied, or fraudulently suffers or permits any",
"such act to be done in his name, shall be punished with imprisonment of",
"either description for a term which may extend to two years, or with fine, or",
with both.,
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 2 years, or fine, or both—Non-cognizable—",
Bailable—Triable by Magistrate of the first class—Non-compoundable.,
Section 211. False charge of offence made with intent to injure,
"Whoever, with intent to cause injury to any person, institutes or causes to be",
"instituted any criminal proceeding against that person, or falsely charges any",
"person with having committed an offence, knowing that there is no just or",
"lawful ground for such proceeding or charge against that person, shall be",
punished with imprisonment of either description for a term which may,
"extend to two years, or with fine, or with both;",
and if such criminal proceeding be instituted on a false charge of an offence,
"punishable with death [imprisonment for life], or imprisonment for seven",
1,
"years or upwards, shall be punishable with imprisonment of either description",
"for a term which may extend to seven years, and shall also be liable to fine.",
CLASSIFICATION OF OFFENCE,
Para I,
"Punishment—Imprisonment for 2 years, or fine, or both—Non-cognizable—",
Bailable—Triable by Magistrate of the first class—Non-compoundable.,
Para II,
Punishment—Imprisonment for 7 years and fine—Non-cognizable—Bailable—,
Triable by Magistrate of the first class—Non-compoundable.,
Para III,
"Punishment—Imprisonment for 7 years, and fine—No",
n-cognizable—Bailable—Triable by Court of Session—Non-compoundable.,
—–,
"1. Subs. by Act 26 of 1955, sec. 117 and Sch., for “transportation for life” (w.e.f.",
1-1-1956).,
Section 212. Harbouring offender,
"Whenever an offence has been committed, whoever harbours or conceals a",
"person whom he knows or has reason to believe to be the offender, with the",
intention of screening him from legal punishment;,
"if a capital offence.—shall, if the offence is punishable with death, be",
punished with imprisonment of either description for a term which may,
"extend to five years, and shall also be liable to fine;",
"if punishable with imprisonment for life, or with imprisonment.—",
"and if the offence is punishable with [imprisonment for life], or with",
1,
"imprisonment which may extend to ten years, shall be punished with",
imprisonment of either description for a term which may extend to three,
"years, and shall also be liable to fine;",
and if the offence is punishable with imprisonment which may extend to one,
"year, and not to ten years, shall be punished with imprisonment of the",
description provided for the offence for a term which may extend to one-,
"fourth part of the longest term of imprisonment provided for the offence, or",
"with fine, or with both.",
[“Offence” in this section includes any act committed at any place out,
2,
"of [India], which, if committed in [India], would be punishable under any of",
3 3,
"the following sections, namely, 302, 304, 382, 392, 393, 394, 395, 396, 397,",
"398, 399, 402, 435, 436, 449, 450, 457, 458, 459 and 460; and every such act",
"shall, for the purposes of this section, be deemed to be punishable as if the",
accused person had been guilty of it in [India].],
3,
Exception.—This provision shall not extend to any case in which the harbour,
or concealment is by the husband or wife of the offender.,
Illustration,
"A, knowing that B has committed dacoity, knowingly conceals B in order to",
"screen him from legal punishment. Here, as B is liable to [imprisonment for",
1,
"life], A is liable to imprisonment of either description for a term not exceeding",
"three years, and is also liable to fine.",
CLASSIFICATION OF OFFENCE,
Para I,
Punishment—Imprisonment for 5 years and fine—Cognizable—Bailable—,
Triable by Magistrate of the first class—Non-compoundable.,
Para II,
Punishment—Imprisonment for 3 years and fine—Cognizable—Bailable—,
Triable by Magistrate of the first class—Non-compoundable.,
Para III,
"Punishment—Imprisonment for a quarter of the longest term, and of the",
"description, provided for the offence, or fine, or both—Cognizance—Bailable—",
Triable by Magistrate of the first class—Non-compoundable.,
–,
"1. Subs. by Act 26 of 1955, sec. 117 and Sch., for “transportation for life” (w.e.f.",
1-1-1956).,
"2. Ins. by Act 3 of 1894, sec. 7.",
"3. The words “British India” have successively been subs. by the A.O. 1948, the",
"A.O. 1950 and Act 3 of 1951, sec. 3 and Sch., to read as above.",
"Section 213. Taking gift, etc., to screen an offender from punishment",
"Whoever accepts or attempts to obtain, or agrees to accept, any gratification",
"for himself or any other person, or any restitution of property to himself or",
"any other person, in consideration of his concealing an offence or of his",
"screening any person from legal punishment for any offence, or of his not",
proceeding against any person for the purpose of bringing him to legal,
"punishment,",
"if a capital offence.—shall, if the offence is punishable with death, be",
punished with imprisonment of either description for a term which may,
"extend to seven years, and shall also be liable to fine;",
"if punishable with imprisonment for life, or with imprisonment.—",
"and if the offence is punishable with [imprisonment for life], or with",
1,
"imprisonment which may extend to ten years, shall be punished with",
imprisonment of either description for a term which may extend to three,
"years, and shall also be liable to fine;",
"and if the offence is punishable with imprisonment not extending to ten years,",
shall be punished with imprisonment of the description provided for the,
offence for a term which may extend to one-fourth part of the longest term of,
"imprisonment provided for the offence, or with fine, or with both.",
CLASSIFICATION OF OFFENCE,
Para I,
Punishment—Imprisonment for 7 years and fine—Cognizable—Bailable—,
Triable by Magistrate of the first class—Non-compoundable.,
Para II,
Punishment—Imprisonment for 3 years and fine—Cognizable—Bailable—,
Triable by Magistrate of the first class—Non-compoundable.,
Para III,
"Punishment—Imprisonment for a quarter of the longest term, provided for the",
"offence, or fine, or both—Cognizable—Bailable—Triable by Magistrate of the",
first class—Non-compoundable.,
–,
"1. Subs. by Act 26 of 1955, sec. 117 and Sch., for “transportation for life” (w.e.f.",
1-1-1956).,
Section 214. Offering gift or restoration of property in consideration of screening,
offender,
"Whoever gives or causes, or offers or agrees to give or cause, any gratification",
"to any person, or [restores or causes the restoration of] any property to any",
1,
"person, in consideration of that person’s concealing an offence, or of his",
"screening any person from legal punishment for any offence, or of his not",
proceeding against any person for the purpose of bringing him to legal,
punishment;,
"if a capital offence.—shall, if the offence is punishable with death, be",
punished with imprisonment of either description for a term which may,
"extend to seven years, and shall also be liable to fine;",
"if punishable with imprisonment for life, or with imprisonment.—",
"and if the offence is punishable with [imprisonment for life], or with",
2,
"imprisonment which may extend to ten years, shall be punished with",
imprisonment of either description for a term which may extend to three,
"years, and shall also be liable to fine;",
"and if the offence is punishable with imprisonment not extending to ten years,",
shall be punished with imprisonment of the description provided for the,
offence for a term which may extend to one-fourth part of the longest term of,
"imprisonment provided for the offence, or with fine, or with both.",
[Exception.—The provisions of sections 213 and 214 do not extend to any case,
3,
in which the offence may lawfully be compounded.],
[***],
4,
CLASSIFICATION OF OFFENCE,
Para I,
Punishment—Imprisonment for 7 years and fine—Non-cognizable—Bailable—,
Triable by Magistrate of the first class—Non-compoundable.,
Para II,
Punishment—Imprisonment for 3 years and fine-—Non-cognizable—Bailable,
—Triable by Magistrate of the first class—Non-compoundable.,
Para III,
Punishment—Imprisonment for a quarter of the longest term provided for the,
"offence, or fine, or both—Non-cognizable—Bailable—Triable by Magistrate of",
the first class—Non-compoundable.,
—-,
"1. Subs. by Act 26 of 1955, sec. 117 and Sch., for “transportation for life” (w.e.f.",
1-1-1956).,
"2. Subs. by Act 42 of 1953, sec. 4 and Sch. III, for “to restore or cause the",
restoration of” (w.e.f. 23-12-1953).,
"3. Subs. by Act 8 of 1882, sec. 6, for the original Exception.",
"4. Illustrations rep. by Act 10 of 1882, sec. 2 and Sch. I.",
"Section 215. Taking gift to help to recover stolen property, etc.",
Whoever takes or agrees or consents to take any gratification under pretence,
or on account of helping any person to recover any movable property of which,
"he shall have been deprived by any offence punishable under this Code, shall,",
unless he uses all means in his power to cause the offender to be apprehended,
"and convicted of the offence, be punished with imprisonment of either",
"description for a term which may extend to two years, or with fine, or with",
both.,
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 2 years, or fine, or both—Cognizable—",
Bailable—Triable by Magistrate of the first class—Non-compoundable.,
Section 216. Harbouring offender who has escaped from custody or whose apprehension,
has been ordered,
"Whenever any person convicted of or charged with an offence, being in lawful",
"custody for that offence, escapes from such custody;",
"or whenever a public servant, in the exercise of the lawful powers of such",
"public servant, orders a certain person to be apprehended for an offence,",
"whoever, knowing of such escape or order for apprehension, harbours of",
conceals that person with the intention of preventing him from being,
"apprehended, shall be punished in the manner following that is to say,",
if a capital offence.—if the offence for which the person was in custody or is,
"ordered to be apprehended is punishable with death, he shall be punished",
with imprisonment of either description for a term which may extend to seven,
"years, and shall also be liable to fine;",
"if punishable with imprisonment for life, or with imprisonment.—if",
"the offence is punishable with [imprisonment for life], or imprisonment for",
1,
"ten years, he shall be punished with imprisonment of either description for a",
"term which may extend to three years, with or without fine;",
and if the offence is punishable with imprisonment which may extend to one,
"year and not to ten years, he shall be punished with imprisonment of the",
description provided for the offence for a term which may extend to one-,
"fourth part of the longest term of the imprisonment provided for such offence,",
"or with fine, or with both.",
[“Offence” in this section includes also any act or omission of which a person,
2,
"is alleged to have been guilty out of [India], which, if he had been guilty of it",
3,
"in [India], would have been punishable as an offence, and for which he is,",
3,
"under any law relating to extradition, [***] or otherwise, liable to be appre-",
4,
hended or detained in custody in [India]; and every such act or omission,
3,
"shall, for the purposes of this section, be deemed to be punishable as if the",
accused person had been guilty of it in [India].],
3,
Exception.—This provision does not extend to the case in which the harbour,
or concealment is by the husband or wife of the person to be apprehended.,
CLASSIFICATION OF OFFENCE,
Para I,
Punishment—Imprisonment for 7 years and fine—Cognizable—Bailable—,
Triable by Magistrate of the first class—Non-compoundable.,
Para II,
"Punishment—Imprisonment for 3 years, with or without fine—Cognizable—",
Bailable—Triable by Magistrate of the first class—Non-compoundable.,
Para III,
Punishment—Imprisonment for a quarter of the longest term provided for the,
"offence, or fine, or both—Cognizable—Bailable—Triable by Magistrate of the",
first class—Non-compoundable.,
–,
"1. Subs. by Act 26 of 1955, sec. 117 and Sch., for “transportation for life” (w.e.f.",
1-1-1956).,
"2. Ins. by Act 10 of 1886, sec. 23.",
"3. The words “British India” have successively been subs. by the A.O. 1948, the",
"A.O. 1950 and Act 3 of 1951, sec. 3 and Sch., to read as above.",
"4. The words “or under the Fugitive Offenders Act, 1881,” omitted by Act 3 of",
"1951, sec. 3 and Sch.",
Section 216A. Penalty for harbouring robbers or dacoits,
"[216A. Penalty for harbouring robbers or dacoits.— Whoever, knowing or",
1,
having reason to believe that any persons are about to commit or have recently,
"committed robbery or dacoity, harbours them or any of them, with the",
intention of facilitating the commission of such robbery or dacoity or of,
"screening them or any of them from punishment, shall be punished with",
"rigorous imprisonment for a term which may extend to seven years, and shall",
also be liable to fine.,
Explanation,
For the purposes of this section it is immaterial whether the robbery or dacoity,
"is intended to be committed, or has been committed, within or",
without [India],
2,
Exception.— This provision does not extend to the case in which the harbour,
is by the husband or wife of the offender.],
CLASSIFICATION OF OFFENCE,
Punishment—Rigorous imprisonment for 7 years and fine—Cognizable—,
Bailable—Triable by Magistrate of the first class—Non-compoundable.,
—–,
"1. Ins. by Act 3 of 1894, sec. 8.",
"2. The words “British India” have successively been subs. by the A.O. 1948, the",
"A.O. 1950 and Act 3 of 1951, sec. 3 and Sch., to read as above.",
"Section 216B. Definition of “harbour” in sections 212, 216 and 216A",
"[216B. Definition of “harbour” in sections 212, 216 and 216A.— [Rep. by the",
1,
"Indian Penal Code (Amendment) Act, 1942 (8 of 1942), sec. 3.]]",
–,
"1. Ins. by Act 3 of 1894, sec. 8.",
Section 217. Public servant disobeying direction of law with intent to save person from,
punishment or property from forfeiture,
"Whoever, being a public servant, knowingly disobeys any direction of the law",
"as to the way in which he is conduct himself as such public servant, intending",
"thereby to save, or knowing it to be likely that he will thereby save, any person",
"from legal punishment, or subject him to a less punishment than that to which",
"he is liable, or with intent to save, or knowing that he is likely thereby to save,",
"any property from forfeiture or any charge to which it is liable by law, shall be",
punished with imprisonment of either description for a term which may,
"extend to two years, or with fine, or with both.",
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 2 years, or fine, or both—Non-cognizable—",
Bailable—Triable by any Magistrate—Non-compoundable.,
Section 218. Public servant framing incorrect record or writing with intent to save,
person from punishment or property from forfeiture,
"Whoever, being a public servant, and being as such public servant, charged",
"with the preparation of any record or other writing, frames that record or",
"writing in a manner which he knows to be incorrect, with intent to cause, or",
"knowing it to be likely that he will thereby cause, loss or injury to the public or",
"to any person, or with intent thereby to save, or knowing it to be likely that he",
"will thereby save, any person from legal punishment, or with intent to save, or",
"knowing that he is likely thereby to save, any property from forfeiture or other",
"charge to which it is liable by law, shall be punished with imprisonment of",
"either description for a term which may extend to three years, or with fine, or",
with both.,
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 3 years, or fine, or both—Cognizable—",
Bailable—Triable by Magistrate of the first class—Non-compoundable.,
"Section 219. Public servant in judicial proceeding corruptly making report, etc., contrary",
to law,
"Whoever, being a public servant, corruptly or maliciously makes or",
"pronounces in any stage of a judicial proceeding, any report, order, verdict, or",
"decision which he knows to be contrary to law, shall be punished with",
imprisonment of either description for a term which may extend to seven,
"years, or with fine, or with both.",
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 7 years, or fine, or both—Non-Cognizable—",
Bailable—Triable by Magistrate of the first class—Non-compoundable,
Section 220. Commitment for trial or confinement by person having authority who,
knows that he is acting contrary to law,
"Whoever, being in any office which gives legal authority to commit persons for",
"trial or to confinement, or to keep persons in confinement, corruptly or",
"maliciously commits any person for trial or to confinement, or keeps any",
"person in confinement, in the exercise of that authority knowing that in so",
"doing he is acting contrary to law, shall be punished with imprisonment of",
"either description for a term which may extend to seven years, or with fine, or",
with both.,
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 7 years, or fine, or both—Non-cognizable—",
Bailable—Triable by Magistrate of the first class—Non-compoundable.,
Section 221. Intentional omission to apprehend on the part of public servant bound to,
apprehend,
"Whoever, being a public servant, legally bound as such public servant to",
apprehend or to keep in confinement any person charged with or liable to,
"apprehended for an offence, intentionally omits to apprehend such person, or",
"intentionally suffers such person to escape, or intentionally aids such person",
"in escaping or attempting to escape from such confinement, shall be punished",
"as follows, that is to say:",
with imprisonment of either description for a term which may extend to seven,
"years, with or without fine, if the person in confinement, or who ought to have",
"been apprehended, was charged with, or liable to be apprehended for, an",
offence punishable with death; or,
with imprisonment of either description for a term which may extend to three,
"years, with or without fine, if the person in confinement, or who ought to have",
"been apprehended, was charged with, or liable to be apprehended for, an",
offence punishable with [imprisonment for life] or imprisonment for a term,
1,
which may extend to ten years; or,
with imprisonment of either description for a term which may extend to two,
"years, with or without fine, if the person in confinement, or who ought to have",
"been apprehended, was charged with, or liable to be apprehended for, an",
offence punishable with imprisonment for a term less than ten years.,
CLASSIFICATION OF OFFENCE,
Para I,
"Punishment—Imprisonment for 7 years, with or without fine—According as",
the offence in relation to which such omission has been made in cognizable or,
non-cognizable—Bailable—Triable by Magistrate of the first class—Non-,
compoundable.,
Para II,
"Punishment—Imprisonment for 3 years, with or without fine—Cognizable—",
Bailable—Triable by Magistrate of the first class—Non-compoundable.,
Para III,
"Punishment—Imprisonment for 2 years, with or without fine—Cognizable—",
Bailable—Triable by Magistrate of the first class—Non-compoundable.,
"1. Subs. by Act 26 of 1955, sec. 117 and Sch., for “transportation for life” (w.e.f.",
1-1-1956).,
Section 222. Intentional omission to apprehend on the part of public servant bound to,
apprehend person under sentence or lawfully committed,
"Whoever, being a public servant, legally bound as such public servant to",
apprehend or to keep in confinement any person under sentence of a Court of,
"Justice for any offence [or lawfully committed to custody], intentionally omits",
1,
"to apprehend such person, or intentionally suffers such person to escape, or",
intentionally aids such person in escaping or attempting to escape from such,
"confinement, shall be punished as follows, that is to say :",
with [imprisonment of life] or with imprisonment of either description for a,
2,
"term which may extend to fourteen years, with or without fine, if the person in",
"confinement, or who ought to have been apprehended, is under sentence of",
death; or,
with imprisonment of either description for a term which may extend to seven,
"years, with or without fine, if the person in confinement or who ought to have",
"been apprehended, is subject, by a sentence of a Court of Justice, or by virtue",
"of a commutation of such sentence, to [imprisonment for",
2,
life] [***] [***] [***] [***] or imprisonment for a term of ten years or,
3 4 5 6,
upwards; or,
with imprisonment of either description for a term which may extend to two,
"years, or with fine, or with both, if the person in confinement, or who ought to",
"have been apprehended is subject, by a sentence of a Court of Justice, to",
imprisonment for a term not exceeding to ten years [or if the person was,
7,
lawfully committed to custody].,
CLASSIFICATION OF OFFENCE,
Para I,
"Punishment—Imprisonment for life, or imprisonment for 14 years, with or",
without fine—Cognizable—Non-bailable—Triable by Court of Session—Non-,
compoundable.,
Para II,
"Punishment—Imprisonment for 7 years, with or without fine—Cognizable—",
Non-bailable—Triable by Magistrate of the first class—Non-compoundable.,
Para III,
"Punishment—Imprisonment for 3 years, or fine, or both—Cognizable—",
Bailable—Triable by Magistrate of the first class—Non-compoundable.,
"1. Ins. by Act 27 of 1870, sec. 8.",
"2. Subs. by Act 26 of 1955, sec. 117 and Sch., for “transportation for life” (w.e.f.",
1-1-1956).,
"3. The words “or penal servitude for life” omitted by Act 17 of 1949, sec. 2",
(w.e.f. 6-4-1949).,
"4. The words “or to” omitted by Act 36 of 1957, sec. 3 and Sch. II (w.e.f. 17-9-",
1957).,
"5. The word “transportation” omitted by Act 26 of 1955, sec. 117 and Sch.",
(w.e.f. 1-1-1956).,
"6. The words “or penal servitude” omitted by Act 17 of 1949, sec. 2 (w.e.f. 6-4-",
1949).,
"7. Ins. by Act 27 of 1870, sec. 8.",
Section 223. Escape from confinement or custody negligently suffered by public servant,
"Whoever, being a public servant legally bound as such public servant to keep",
in confinement any person charged with or convicted of any offence [or,
1,
"lawfully committed to custody], negligently suffers such person to escape from",
"confinement, shall be punished with simple imprisonment for a term which",
"may extend to two years, or with fine, or with both.",
CLASSIFICATION OF OFFENCE,
"Punishment—Simple imprisonment for 2 years, or fine, or both—Non-cog-",
nizable—Bailable—Triable by any Magistrate—Non-compoundable.,
–,
"1. Ins. by Act 27 of 1870, sec. 8.",
Section 224. Resistance or obstruction by a person to his lawful apprehension,
Whoever intentionally offers any resistance or illegal obstruction to the lawful,
apprehension of himself for any offence with which he is charged or of which,
"he has been convicted, or escapes or attempts to escape from custody in which",
"he is lawfully detained for any such offence, shall be punished with",
"imprisonment of either description for a term which may extend to two years,",
"or with fine, or with both.",
Explanation,
The punishment in this section is in addition to the punishment for which the,
person to be apprehended or detained in custody was liable for the offence,
"with which he was charged, or of which he was convicted.",
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 2 years, or fine, or both—Cognizable—",
Bailable—Triable by any Magistrate—Non-compoundable.,
Section 225. Resistance or obstruction to lawful apprehension of another person,
Whoever intentionally offers any resistance or illegal obstruction to the lawful,
"apprehension of any other person for an offence, or rescues or attempts to",
rescue any other person from any custody in which that person is lawfully,
"detained for an offence, shall be punished with imprisonment of either",
"description for a term which may extend to two years, or with fine, or with",
both;,
"or, if the person to be apprehended, or the person rescued or attempted to be",
"rescued, is charged with or liable to be apprehended for an offence punishable",
with [imprisonment for life] or imprisonment for a term which may extend to,
1,
"ten years, shall be punished with imprisonment of either description for a",
"term which may extend to three years, and shall also be liable to fine;",
"or, if the person to be apprehended, or the person attempted to be rescued, is",
"charged with or liable to be apprehended for an offence punishable with death,",
shall be punished with imprisonment of either description for a term which,
"may extend to seven years, and shall also be liable to fine;",
"or, if the person to be apprehended or rescued, or attempted to be rescued, is",
"liable under the sentence of a Court of Justice, or by virtue of a commutation",
"of such a sentence, to [imprisonment for life] [***] [***] [***] or",
1 2 3 4,
"imprisonment, for a term of ten years or upwards, shall be punished with",
imprisonment of either description for a term which may extend to seven,
"years, and shall also be liable to fine;",
"or, if the person to be apprehended or rescued, or attempted to be rescued, is",
"under sentence of death, shall be punished with [imprisonment for life] or",
1,
"imprisonment of either description for a term not exceeding ten years, and",
shall also be liable to fine,
CLASSIFICATION OF OFFENCE,
Para I,
"Punishment—Imprisonment for 2 years, or fine, or both—Cognizable—",
Bailable—Triable by any Magistrate—Non-compoundable.,
Para II,
Punishment—Imprisonment for 3 years and fine—Cognizable—Non-bailable—,
Triable by Magistrate of the first class—Non-compoundable.,
Para III & IV,
Punishment—Imprisonment for 7 years and fine—Cognizable—Non-bailable—,
Triable by Magistrate of the first class.,
Para V,
Punishment—Imprisonment for life or imprisonment for 10 years and fine—,
Cognizable—Non-bailable—Triable by Court of Session.,
–,
"1. Subs. by Act 26 of 1955, sec. 117 and Sch., for “transportation for life” (w.e.f.",
1-1-1956).,
"2. The words “or to” omitted by Act 36 of 1957, sec. 3 and Sch. II (w.e.f. 17-9-",
1957).,
"3. The word “transportation” omitted by Act 26 of 1955, sec. 117 and Sch.",
(w.e.f. 1-1-1956).,
"4. The words “penal servitude” omitted by Act 17 of 1949, sec. 2 (w.e.f. 6-4-",
1949).,
"Section 225A. Omission to apprehend, or sufferance of escape, on part of public servant,",
"in cases not otherwise, provided for",
"[225A. Omission to apprehend, or sufferance of escape, on part of public",
1,
"servant, in cases not otherwise, provided for.— Whoever, being a public",
"servant legally bound as such public servant to apprehend, or to keep in",
"confinement, any person in any case not provided for in section 221, section",
"222 or section 223, or in any other law for the time being in force, omits to",
"apprehend that person or suffers him to escape from confinement, shall be",
punished,
"(a) if he does so intentionally, with imprisonment of either description for a",
"term which may extend to three years, or with fine, or with both; and",
"(b) if he does so negligently, with simple imprisonment for a term which may",
"extend to two years, or with fine, or with both.]",
CLASSIFICATION OF OFFENCE,
Para I,
"Punishment—Imprisonment for 3 years, or fine, or both—Non-cognizable—",
Bailable—Triable by Magistrate of the first class—Non-compoundable.,
Para II,
"Punishment—Simple imprisonment for 2 years, or fine, or both—Non-",
cognizable—Bailable—Triable by any Magistrate.,
—–,
"1. Sections 225A and 225B subs. by Act 10 of 1886, sec. 24(1), for section 225A",
"which had been ins. by Act 27 of 1870, sec. 9.",
"Section 225B. Resistance or obstruction to lawful apprehension, or escape or rescue in",
cases not otherwise provided for,
"[225B. Resistance or obstruction to lawful apprehension, or escape or rescue",
1,
"in cases not otherwise provided for.— Whoever, in any case not provided for in",
"section 224 or section 225 or in any other law for the time being in force,",
intentionally offers any resistance or illegal obstruction to the lawful,
"apprehension of himself or of any other person, or escapes or attempts to",
"escape from any custody in which he is lawfully detained, or rescues or",
attempts to rescue any other person from any custody in which that person is,
"lawfully detained, shall be punished with imprisonment of either description",
"for a term which may extend to six months, or with fine, or with both.]",
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 6 months, or fine, or both—Cognizable—",
Bailable—Triable by any Magistrate—Non-compoundable.,
—–,
"1. Sections 225A and 225B subs. by Act 10 of 1886, sec. 24(1), for section 225A",
"which had been ins. by Act 27 of 1870, sec. 9.",
Section 226. Unlawful return from transportation,
"[Rep. by the Code of Criminal Procedure (Amendment) Act, 1995 (26 of 1995), sec. 117 and Sch. (w.e.f.",
1.1.1956).],
Section 227. Violation of condition of remission of punishment,
"Whoever, having accepted any conditional remission of punishment,",
"knowingly violates any condition on which such remission was granted, shall",
"be punished with the punishment to which he was originally sentenced, if he",
"has already suffered no part of that punishment, and if he has suffered any",
"part of that punishment, then with so much of that punishment as he has not",
already suffered.,
CLASSIFICATION OF OFFENCE,
"Punishment—Punishment of original sentence, or if part of the punishment",
"has been undergone, the residue—Cognizable—Non-bailable—Triable by the",
court by which the original offence was triable—Non-compoundable.,
Section 228. Intentional insult or interruption to public servant sitting in judicial,
proceeding,
"Whoever intentionally offers any insult, or causes any interruption to any",
"public servant, while such public servant is sitting in any stage of a judicial",
"proceeding, shall be punished with simple imprisonment for a term which",
"may extend to six months, or with fine which may extend to one thousand",
"rupees, or with both.",
State Amendment,
Andhra Pradesh,
In Andhra Pradesh offence under section 228 is cognizable.,
"[Vide A.P.G.O. Ms. No. 732, dated 5th December, 1991].",
CLASSIFICATION OF OFFENCE,
"Punishment—Simple Imprisonment for 6 months, or fine of 1,000 rupees or",
both—Non-cognizable—Bailable—Triable by the Court in which the offence is,
"committed, subject to the provisions of Chapter XXVI—Non-compoundable.",
Section 228A. Disclosure of identity of the victim of certain offences etc,
[228A. Disclosure of identity of the victim of certain offences etc.— (1),
1,
Whoever prints or publishes the name or any matter which may make known,
"the identity of any person against whom an 2[“offence under section 376,",
"section 376A, section 376B, section 376C, section 376D or section 376E”] is",
alleged or found to have been committed (hereafter in this section referred to,
as the victim) shall be punished with imprisonment of either description for a,
term which may extend to two years and shall also be liable to fine.,
(2) Nothing in sub-section (1) extends to any printing or publication of the,
name or any matter which may make known the identity of the victim if such,
printing or publication is,
(a) by or under the order in writing of the officer-in-charge of the police,
station or the police officer making the investigation into such offence acting,
in good faith for the purposes of such investigation; or,
"(b) by, or with the authorisation in writing of, the victim; or",
"(c) where the victim is dead or minor or of unsound mind, by, or with the",
"authorisation in writing of, the next of kin of the victim:",
Provided that no such authorisation shall be given by the next of kin to,
"anybody other than the chairman or the secretary, by whatever name called, of",
any recognised welfare institution or organisation.,
Explanation,
"For the purposes of this sub-section, “recognised welfare institution or",
organisation” means a social welfare institution or organisation recognised in,
this behalf by the Central or State Government.,
(3) Whoever prints or publishes any matter in relation to any proceeding,
before a court with respect to an offence referred to in sub-section (1) without,
the previous permission of such Court shall be punished with imprisonment of,
either description for a term which may extend to two years and shall also be,
liable to fine.,
Explanation,
The printing or publication of the judgment of any High Court or the Supreme,
Court does not amount to an offence within the meaning of this section.],
CLASSIFICATION OF OFFENCE,
Para I,
Punishment—Imprisonment for two years and fine—Cognizable—Bailable—,
Triable by any Magistrate—Non-compoundable.,
Para II,
Punishment—Imprisonment for two years and fine—Cognizable—Bailable—,
Triable by any Magistrate—Non-compoundable.,
"1. Ins. by Act 43 of 1983, sec. 2 (w.e.f. 25-12-1983).",
"2. Inserted by Section 4 of ‘The Criminal Law (Amendment) Act, 2013′",
Section 229. Personation of a juror or assessor,
"Whoever by personation or otherwise, shall intentionally cause, or knowingly",
"suffer himself to be returned, empanelled or sworn as a juryman or assessor in",
"any case in which he knows that he is not entitled by law to be so returned,",
"empanelled or sworn, or knowing himself to have been so returned,",
"empanelled or sworn contrary to law, shall voluntarily serve on such jury or as",
"such assessor, shall be punished with imprisonment of either description for a",
"term which may extend to two years, or with fine, or with both.",
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 2 years, or fine, or both—Non-cognizable—",
Bailable—Triable by Magistrate of the first class—Non-compoundable.,
Section 229A. Failure by person released on bail or bond to appear in Court,
[229A. Failure by person released on bail or bond to appear in Court.—,
1,
"Whoever, having been charged with an offence and released on bail or on",
"bond without sureties, fails without sufficient cause (the burden of proving",
"which shall lie upon him), to appear in Court in accordance with the terms of",
"the bail or bond, shall be punished with imprisonment of either description for",
"a term which may extend to one year, or with fine, or with both.",
Explanation,
The punishment under this section is,
(a) in addition to the punishment to which the offender would be liable on a,
conviction for the offence with which he has been charged; and,
(b) without prejudice to the power of the Court to order forfeiture of the,
bond.],
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 1 year, or fine, or both—Cognizable—Non-",
bailable—Triable by any Magistrate—Non-compoundable.,
–,
"1. Ins. by Act 25 of 2005, sec. 44 (w.e.f. 23-6-2006)",
Section 230. Coin defined,
"[Coin is metal used for the time being as money, and stamped and issued by",
1,
the authority of some State or Sovereign Power in order to be so used.],
Indian coin.— 2[Indian coin is metal stamped and issued by the authority of,
the Government of India in order to be used as money; and metal which has,
been so stamped and issued shall continue to be Indian coin for the purposes,
"of this Chapter, notwithstanding that it may have ceased to be used as money.]",
Illustrations,
(a) Cowries are not coin.,
"(b) Lumps of unstamped copper, though used as money, are not coin.",
"(c) Medals are not coin, in as much as they are not intended to be used as",
money.,
(d) The coin denominated as the Company’s rupee is [Indian coin].,
3,
[(e) The “Farukhabad rupee” which was formerly used as money under the,
4,
authority of the Government of India is 4[Indian coin] although it is no longer,
so used].,
"1. Subs. by Act 19 of 1872, sec. 1, for the original first paragraph.",
"2. Subs. by A.O. 1950, for the former paragraph.",
"3. Subs. by the A.O. 1950, for “the Queen’s coin”",
"4. Ins. by Act 6 of 1896, sec. 1.",
Section 231. Counterfeiting coin,
Whoever counterfeits or knowingly performs any part of the process of,
"counterfeiting coin, shall be punished with imprisonment of either description",
"for a term which may extend to seven years, and shall also be liable to fine.",
Explanation,
"A person commits this offence who intending to practice deception, or",
"knowing it to be likely that deception will thereby be practiced, causes a",
genuine coin to appear like a different coin.,
CLASSIFICATION OF OFFENCE,
Punishment—Imprisonment for 7 years and fine—Cognizable—Non-bailable—,
Triable by Magistrate of the first class—Non-compoundable.,
Section 232. Counterfeiting Indian coin,
"Whoever counterfeits, or knowingly performs any part of the process of",
"counterfeiting [Indian coin], shall be punished with [imprisonment for life],",
1 2,
or with imprisonment of either description for a term which may extent to ten,
"years, and shall also be liable to fine.",
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for life, or imprisonment for 10 years and fine—",
Cognizable—Non-bailable—Triable by Court of Session—Non-compoundable.,
—-,
"1. Subs. by the A.O. 1950, for “the Queen’s coin”.",
"2. Subs. by Act 26 of 1955, sec. 117 and Sch., for “transportation for life” (w.e.f.",
1-1-1956).,
Section 233. Making or selling instrument for counterfeiting coin,
"Whoever makes or mends, or performs any part of the process of making or",
"mending, or buys, sells or disposes of, any die or instrument, for the purpose",
"of being used, or knowing or having reason to believe that it is intended to be",
"used, for the purpose of counterfeiting coin, shall be punished with",
imprisonment of either description for a term which may extend to three,
"years, and shall also be liable to fine.",
CLASSIFICATION OF OFFENCE,
Punishment—Imprisonment for 3 years and fine—Cognizable—Non-Bailable—,
Triable by Magistrate of the first class—Non-compoundable.,
Section 234. Making or selling instrument for counterfeiting Indian coin,
"Whoever makes or mends, or performs any part of the process of making or",
"mending, or buys, sells or disposes of , any die or instrument, for the purpose",
"of being used, or knowing or having reason to believe that it is intended to be",
"used, for the purpose of counterfeiting [Indian coin], shall be punished with",
1,
imprisonment of either description for a term which may extend to seven,
"years, and shall also be liable to fine.",
CLASSIFICATION OF OFFENCE,
Punishment—Imprisonment for 7 years and fine—Cognizable—Non-bailable—,
Triable by Court of Session—Non-compoundable.,
—–,
"1. Subs. by the A.O. 1950, for “the Queen’s coin”.",
"Section 235. Possession of instrument, or material for the purpose of using the same for",
counterfeiting coin,
"Whoever is in possession of any instrument or material, for the purpose of",
"using the same for counterfeiting coin, or knowing or having reason to believe",
"that the same is intended to be used for that purpose, shall be punished with",
imprisonment of either description for a term which may extend to three,
"years, and shall also be liable to fine;",
"if Indian coin.—and if the coin to be counterfeited is 1[Indian coin], shall be",
punished with imprisonment of either description for a term which may,
"extend to ten years, and shall also be liable to fine.",
CLASSIFICATION OF OFFENCE,
Para I,
Punishment—Imprisonment for 3 years and fine—Cognizable—Non-bailable—,
Triable by Magistrate of the first class—Non-compoundable.,
Para II,
Punishment—Imprisonment for 10 years and fine—Cognizable—Non-bailable,
—Triable by Court of Session—Non-compoundable.,
—-,
"1. Subs. by the A.O. 1950, for “the Queen’s coin”.",
Section 236. Abetting in India the counterfeiting out of India of coin,
"Whoever, being within [India], abets the counterfeiting of coin out of [India],",
1 1,
shall be punished in the same manner as if he abetted the counterfeiting of,
such coin within [India].,
1,
CLASSIFICATION OF OFFENCE,
Punishment—The punishment provided for abetting the counterfeiting of such,
coin within India—Cognizable—Non-bailable—Triable by Court of Session—,
Non-compoundable.,
"1. The words “British India” have successively been subs. by the A.O. 1948, the",
"A.O. 1950 and Act 3 of 1951, sec. 3 and Sch., to read as above.",
Section 237. Import or export of counterfeit coin,
"Whoever imports into [India],or exports there from, any counterfeit coin,",
1,
"knowing or having reason to believe that the same is counterfeit, shall be",
punished with imprisonment of either description for a term which may,
extend to three years and shall also be liable to fine.,
CLASSIFICATION OF OFFENCE,
Punishment—Imprisonment for 3 years and fine—Cognizable—Non-bailable—,
Triable by Magistrate of the first class—Non-compoundable.,
"1. The words “British India” have successively been subs. by the A.O. 1948, the",
"A.O. 1950 and Act 3 of 1951, sec. 3 and Sch., to read as above.",
Section 238. Import or export of counterfeits of the India coin,
"Whoever imports into [India], or exports there from any counterfeit coin,",
1,
"which he knows or has reason to believe to be a counterfeit of [Indian coin],",
2,
"shall be punished with imprisonment with [imprisonment for life], or with",
3,
"imprisonment of either description for a term which may extend to ten years,",
and shall also be liable to fine.,
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for life, or imprisonment for 10 years and fine—",
Cognizable—Non-bailable—Triable by Court of Session—Non-compoundable.,
"1. The words “British India” have successively been subs. by the A.O. 1948, the",
"A.O. 1950 and Act 3 of 1951, sec. 3 and Sch., to read as above.",
"2. Subs. by the A.O. 1950, for “the Queen’s coin”.",
"3. Subs. by Act 26 of 1955, sec. 117 and Sch., for “transportation for life” (w.e.f.",
1-1-1956).,
"Section 239. Delivery of coin, possessed with knowledge that it is counterfeit",
"Whoever, having any counterfeit coin, which at the time when he became",
"possessed of it knew to be counterfeit, fraudulently or with intent that fraud",
"may be committed, delivers the same to any person, or attempts to induce any",
person to receive it shall be punished with imprisonment of either description,
"for a term which may extend to five years, and shall also be liable to fine.",
CLASSIFICATION OF OFFENCE,
Punishment—Imprisonment for 5 years and fine—Cognizable—Non-bailable—,
Triable by Magistrate of the first class—Non-compoundable.,
"Section 240. Delivery of Indian coin, possessed with knowledge that it is counterfeit",
"Whoever, having any counterfeit coin which is a counterfeit of [Indian coin],",
1,
"and which, at the time when he became possessed of it, he knew to be a",
"counterfeit of [Indian coin], fraudulently or with intent that fraudulently or",
1,
"with intent that fraud may be committed, delivers the same to any person, or",
attempts to induce any person to receive it shall be punished with,
"imprisonment of either description for a term which may extend to ten years,",
and shall also be liable to fine.,
CLASSIFICATION OF OFFENCE,
Punishment—Imprisonment for 10 years and fine—Cognizable—Non-bailable,
—Triable by Court of Session—Non-compoundable.,
–,
"1. Subs. by the A.O. 1950, for “Queen’s coin”.",
"Section 241. Delivery of coin as genuine, which, when first possessed, the deliverer did",
not know to be counterfeit,
"Whoever delivers to any other person as genuine, or attempts to induce any",
"other person to receive as genuine, any counterfeit coin which he knows to be",
"counterfeit, but which he did not know to be counterfeit at the time when he",
"took it into his possession, shall be punished with imprisonment of either",
"description for a term which may extend to two years, or with fine to an",
"amount which may extend to ten times the value of the coin counterfeited, or",
with both.,
Illustration,
"A, a coiner, delivers counterfeit Company’s rupees to his accomplice B, for the",
"purpose of uttering them. B sells the rupees to C, another utterer, who buys",
"them knowing them to be counterfeit. C pays away the rupees for good to D,",
"who receives them, not knowing them to be counterfeit. D, after receiving the",
"rupees, discovers that they are counterfeit and pays them away as if they were",
"good. Here D is punishable only under his section, but B and C are punishable",
"under section 239 or 240, as the case may be.",
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 2 years, or fine, or 10 times the value of the",
"coin counterfeited, or both—Cognizable—Non-bailable—Triable by any",
Magistrate—Non-compoundable.,
Section 242. Possession of counterfeit coin by person who knew it to be counterfeit when,
he became possessed thereof,
"Whoever, fraudulently or with intent that fraud may be committed, is in",
"possession of counterfeit coin, having known at the time when he became",
"possessed thereof that such coin was counterfeit, shall be punished with",
imprisonment of either description for a term which may extend to three,
"years, and shall also be liable to fine.",
CLASSIFICATION OF OFFENCE,
Punishment—Imprisonment for 3 years and fine—Cognizable—Non-bailable—,
Triable by Magistrate of the first class—Non-compoundable.,
Section 243. Possession of Indian coin by person who knew it to be counterfeit when he,
became possessed thereof,
"Whoever, fraudulently or with intent that fraud may be committed, is in",
"possession of counterfeit coin, which is a counterfeit of [Indian coin], having",
1,
"known at the time when he became possessed of it that it was counterfeit, shall",
be punished with imprisonment of either description for a term which may,
"extend to seven years, and shall also be liable to fine.",
CLASSIFICATION OF OFFENCE,
Punishment—Imprisonment for 7 years and fine—Cognizable—Non-bailable—,
Triable by Magistrate of the first class—Non-compoundable.,
"1. Subs. by the A.O. 1950, for “Queen’s coin”.",
Section 244. Person employed in mint causing coin to be of different weight or,
composition from that fixed by law,
"Whoever, being employed in any mint lawfully established in [India], does",
1,
"any act, or omits what he is legally bound to do, with the intention of causing",
any coin issued from that mint to be of a different weight or composition from,
"the weight or composition fixed by law, shall be punished with imprisonment",
"of either description for a term which may extend to seven years, and shall",
also be liable to fine.,
CLASSIFICATION OF OFFENCE,
Punishment—Imprisonment for 7 years and fine—Cognizable—Non-bailable—,
Triable by Magistrate of the first class—Non-compoundable.,
"1. The words “British India” have successively been subs. by the A.O. 1948, the",
"A.O. 1950 and Act 3 of 1951, sec. 3 and Sch., to read as above.",
Section 245. Unlawfully taking coining instrument from mint,
"Whoever, without lawful authority, takes out of any mint, lawfully established",
"in [India], any coining tool or instrument, shall be punished with",
1,
imprisonment of either description for a term which may extend to seven,
"years, and shall also be liable to fine.",
CLASSIFICATION OF OFFENCE,
Punishment—Imprisonment for 7 years and fine—Cognizable—Non-bailable—,
Triable by Magistrate of the first class—Non-compoundable.,
"1. The words “British India” have successively been subs. by the A.O. 1948, the",
"A.O. 1950 and Act 3 of 1951, sec. 3 and Sch., to read as above.",
Section 246. Fraudulently or dishonestly diminishing weight or altering composition of,
coin,
Whoever fraudulently or dishonestly performs on any coin any operation,
"which diminishes the weight or alters the composition of that coin, shall be",
punished with imprisonment of either description for a term which may,
"extend to three years, and shall also be liable to fine.",
Explanation,
A person who scoops out part of the coin and puts anything else into the cavity,
alters the composition of that coin.,
Section 247. Fraudulently or dishonestly diminishing weight or altering composition of,
Indian coin,
Whoever fraudulently or dishonestly performs on [any Indian coin] any,
1,
"operation which diminishes the weight or alters the composition of that coin,",
shall be punished with imprisonment of either description for a term which,
"may extend to seven years, and shall also be liable to fine.",
CLASSIFICATION OF OFFENCE,
Punishment—Imprisonment for 7 years and fine—Cognizable—Non-bailable—,
Triable by Magistrate of the first class—Non-compoundable.,
"1. Subs. by the A.O. 1950, for “any of the Queen’s coin”.",
Section 248. Altering appearance of coin with intent that it shall pass as coin of different,
description,
Whoever performs on any coin any operation which alters the appearance of,
"that coin, with the intention that the said coin shall pass as a coin of a different",
"description, shall be punished with imprisonment of either description for a",
"term which may extend to three years, and shall also be liable to fine.",
CLASSIFICATION OF OFFENCE,
Punishment—Imprisonment for 3 years and fine—Cognizable—Non-bailable—,
Triable by Magistrate of the first class—Non-compoundable.,
Section 249. Altering appearance of Indian coin with intent that it shall pass as coin of,
different description,
whoever performs on [any Indian coin] any operation which alters the,
1,
"appearance of that coin, with the intention that the said coin shall pass as a",
"coin of a different description, shall be punished with imprisonment of either",
"description for a term which may extend to seven years, and shall also be",
liable to fine.,
CLASSIFICATION OF OFFENCE,
Punishment—Imprisonment for 7 years and fine—Cognizable—Non-bailable—,
Triable by Magistrate of the first class—Non-compoundable.,
–,
"1. Subs. by the A.O. 1950, for “any of the Queen’s coin”.",
"Section 250. Delivery of coin, possessed with knowledge that it is altered",
"Whoever, having coin in his possession with respect to which the offence",
"defined in section 246 or 248 has been committed, and having known at the",
time when he became possessed of such coin that such offence had been,
"committed with respect to it, fraudulently or with intent that fraud may be",
"committed, delivers such coin to any other person, or attempts to induce any",
"other person to receive the same, shall be punished with imprisonment of",
"either description for a term which may extend to five years, and shall also be",
liable to fine.,
CLASSIFICATION OF OFFENCE,
Punishment—Imprisonment for 5 years and fine—Cognizable—Non-bailable—,
Triable by Magistrate of the first class—Non-compoundable.,
"Section 251. Delivery of Indian coin, possessed with knowledge that it is altered",
"Whoever, having coin in his possession with respect to which the offence",
"defined in section 247 or 249 has been committed, and having known at the",
time when he became possessed of such coin that such offence had been,
"committed, delivers such coin to any other person, or attempts to induce any",
"other person to receive the same, shall be punished with imprisonment of",
"either description for a term which may extend to ten years, and shall also be",
liable to fine.,
CLASSIFICATION OF OFFENCE,
Punishment—Imprisonment for 10 years and fine—Cognizable—Non-bailable,
—Triable by Court of Session—Non-compoundable.,
Section 252. Possession of coin by person who knew it to be altered when he became,
possessed thereof,
"Whoever, fraudulently or with intent that fraud may be committed, is in",
possession of coin with respect to which the offence defined in either of the,
"section 246 or 248 has been committed, having known at the time of",
becoming possessed thereof that such offence had been committed with,
"respect to such coin, shall be punished with imprisonment of either",
description for a term which may extend to three years and shall also be liable,
to fine.,
CLASSIFICATION OF OFFENCE,
Punishment—Imprisonment for 3 years and fine—Cognizable—Non-bailable—,
Triable by Magistrate of the first class—Non-compoundable.,
Section 253. Possession of Indian coin by person who knew it to be altered when he,
became possessed thereof,
"Whoever, fraudulently or with intent that fraud may be committed, is in",
possession of coin with respect to which the offence defined in either of the,
"section 247 or 249 has been committed, having known at the time of becoming",
"possessed thereof, that such offence had been committed with respect to such",
"coin, shall be punished with imprisonment of either description for a term",
"which may extend to five years, and shall also be liable to fine.",
CLASSIFICATION OF OFFENCE,
Punishment—Imprisonment for 5 years and fine—Cognizable—Non-bailable—,
Triable by Magistrate of the first class—Non-compoundable.,
"Section 254. Delivery of coin as genuine, which, when first possessed, the deliverer did",
not know to be altered,
Whoever delivers to any other person as genuine or as a coin of a different,
"description from what it is, or attempts to induce any person to receive as",
"genuine, or as a different coin from what it is, any coin in respect of which he",
"knows that any such operation as that mentioned in section 246, 247, 248 or",
"249 has been performed, but in respect of which he did not, at the time when",
"he took it into his possession, know that such operation had been performed,",
shall be punished with imprisonment of either description for a term which,
"may extend to two years, or with fine to an amount which may extend to ten",
"times the value of the coin for which the altered coin is passed, or attempted to",
be passed.,
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 2 years, or fine, or 10 times the value of the",
coin—Cognizable—Non-bailable—Triable by any Magistrate—Non-,
compoundable.,
Section 255. Counterfeiting Government stamp,
"Whoever counterfeits, or knowingly performs any part of the process of",
"counterfeiting, any stamp issued by Government for the purpose of revenue,",
"shall be punished with [imprisonment for life], or with imprisonment of",
1,
"either description for a term which may extend to ten years, and shall also be",
liable to fine.,
Explanation,
A person commits this offence who counterfeits by causing a genuine stamp of,
one denomination to appear like a genuine stamp of a different denomination.,
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for life, or imprisonment for 10 years, and fine—",
Cognizable—Non-bailable—Triable by Court of Session—Non-compoundable.,
–,
"1. Subs. by Act 26 of 1955, sec. 117 and Sch., for “transportation for life” (w.e.f.",
1-1-1956).,
Section 256. Having possession of instrument or material for counterfeiting Government,
stamp,
Whoever has in his possession any instrument or material for the purpose of,
"being used, or knowing or having reason to believe that it is intended to be",
"used, for the purpose of counterfeiting any stamp issued by Government for",
"the purpose of revenue, shall be punished with imprisonment of either",
"description for a term which may extend to seven years, and shall also be",
liable to fine.,
CLASSIFICATION OF OFFENCE,
Punishment—Imprisonment for 7 years and fine—Cognizable—Non-bailable—,
Triable by Magistrate of the first class—Non-compoundable.,
Section 257. Making or selling instrument for counterfeiting Government stamp,
"Whoever makes or performs any part of the process of making, or buys, or",
"sells, or dispose of, any instrument for the purpose of being used, or knowing",
"or having reason to believe that it is intended to be used, for the purpose of",
"counterfeiting any stamp issued by Government for the purpose of revenue,",
shall be punished with imprisonment of either description for a term which,
"may extend to seven years, and shall also be liable to fine.",
CLASSIFICATION OF OFFENCE,
Punishment—Imprisonment for 7 years and fine—Cognizable—Non-bailable—,
Triable by Magistrate of the first class—Non-compoundable.Section 258. Sale,
of counterfeit Government stamp,
"Whoever, sells, or offers for sale, any stamp which he knows or has reason to",
believe to be a counterfeit of any stamp issued by the Government for the,
"purpose of revenue, shall be punished with imprisonment of either description",
"for a term which may extend to seven years, and shall also be liable to fine.",
CLASSIFICATION OF OFFENCE,
Punishment—Imprisonment for 7 years and fine—Cognizable—Non-bailable—,
Triable by Magistrate of the first class—Non-compoundable.,
Section 259. Having possession of counterfeit Government stamp,
Whoever has in his possession any stamp which he knows to be a counterfeit,
"of any stamp issued by Government for the purpose of revenue, intending to",
"use, or dispose of the same as a genuine stamp, or in order that it may be used",
"as a genuine stamp, shall be punished with imprisonment of either description",
"for a term which may extend to seven years, and shall also be liable to fine.",
CLASSIFICATION OF OFFENCE,
Punishment—Imprisonment for 7 years and fine—Cognizable—Bailable—,
Triable by Magistrate of the first class—Non-compoundable.,
Section 260. Using as genuine a Government stamp known to be a counterfeit,
"Whoever uses a s genuine any stamp, knowing it to be counterfeit of any",
"stamp issued by Government for the purpose of revenue, shall be punished",
with imprisonment of either description for a term which may extend to seven,
"years, or with fine, or with both.",
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 7 years, or fine, or both—Cognizable—",
Bailable—Triable by Magistrate of the first class—Non-compoundable.,
"Section 261. Effacing, writing from substance bearing Government stamp, or removing",
"from document a stamp used for it, with intent to cause loss to Government",
"Whoever, fraudulently or with intent to cause loss to the Government,",
"removes or effaces from any substance, bearing any stamp issued by",
"Government for the purpose of revenue, any writing or document for which",
"such stamp has been used, or removes from any writing or document a stamp",
"which has been used for such writing or document, in order that such stamp",
"may be used for a different writing or document, shall be punished with",
imprisonment of either description for a term which may extend to three,
"years, or with fine, or with both.",
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 3 years, or fine, or both—Cognizable—",
Bailable—Triable by Magistrate of the first class—Non-compoundable.,
Section 262. Using Government stamp known to have been before used,
"Whoever, fraudulently or with intent to cause loss to the Government, uses for",
"any purpose a stamp issued by Government for the purpose of revenue, which",
"he knows to have been before used, shall be punished with imprisonment of",
"either description for a term which may extend to two years, or with fine, or",
with both.,
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 2 years, or fine, or both—Cognizable—",
Bailable—Triable by any Magistrate—Non-compoundable.,
Section 263. Erasure of mark denoting that stamp has been used,
"Whoever, fraudulently or with intent to cause loss to Government, erase or",
"removes from a stamp issued by the Government for the purpose of revenue,",
"any mark, put or impressed upon such stamp for the purpose of denoting that",
"the same has been used, or knowingly has in his possession or sells or disposes",
"of any such stamp from which such mark has been erased or removed, or sell",
"or disposes of any such stamp which he knows to have been used, shall be",
punished with imprisonment of either description for a term which may,
"extend to three years, or with fine, or with both.",
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 3 years, or fine, or both—Cognizable—",
Bailable—Triable by Magistrate of the first class—Non-compoundable.,
Section 263A. Prohibition of fictitious stamps,
[263A. Prohibition of fictitious stamps.—(1) Whoever,
1,
"(a) makes, knowingly utters, deals in or sells any fictitious stamps, or",
"knowingly uses for any postal purpose any fictitious stamp, or",
"(b) has in his possession, without lawful excuse, any fictitious stamp, or",
"(c) makes or, without lawful excuse, has in his possession any die, plate,",
"instrument or materials for making any fictitious stamp,",
shall be punished with fine which may extend to two hundred rupees.,
"(2) Any such stamps, die, plate, instrument or materials in the possession of",
"any person for making any fictitious stamp 2[may be seized and, if seized]",
shall be forfeited.,
(3) In this section “fictitious stamp” means any stamp falsely purporting to be,
"issued by the Government for the purpose of denoting a rate of postage, or any",
"facsimile or imitation or representation, whether on paper or otherwise, of any",
stamp issued by Government for that purpose.,
"(4) In this section and also in sections 255 to 263, both inclusive, the word",
"“Government”, when used in connection with, or in reference to, any stamp",
"issued for the purpose of denoting a rate of postage, shall, notwithstanding",
"anything in section 17, be deemed to include the person or persons authorized",
"by law to administer executive Government in any part of India, and also in",
any part of Her Majesty’s dominions or in any foreign country.],
CLASSIFICATION OF OFFENCE,
Punishment—Fine of 200 rupees—Cognizable—Bailable—Triable by any,
Magistrate—Non-compoundable.,
–,
"1. Ins. by Act 3 of 1895, sec. 2.",
"2. Subs. by Act 42 of 1953, sec. 4 and Sch. III, for “may be seized and” (w.e.f.",
23-12-1953).,
Section 264. Fraudulent use of false instrument for weighing,
Whoever fraudulently uses any instrument for weighing which he knows to be,
"false, shall be punished with imprisonment or either description for a term",
"which may extend to one year, or with fine, or with both.",
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 1 year, or fine, or both—Non-cognizable—",
Bailable—Triable by any Magistrate—Non-compoundable.,
Section 265. Fraudulent use of false weight or measure,
Whoever fraudulently uses any false weight or false measure of length or,
"capacity, or fraudulently uses any weight or any measure of length or capacity",
"as different weight or measure form what it is, shall be punished with",
"imprisonment of either description for a term which may extend to one year,",
"or with fine, or with both.",
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 1 year, or fine, or both—Non-cognizable—",
Bailable—Triable by any Magistrate—Non-compoundable.,
Section 266. Being in possession of false weight or measure,
"Whoever is in possession of any instrument for weighing, or of any weight, or",
"of any measure of length or capacity, which he knows to be false, [* * *]",
1,
"intending that the same may be fraudulently used, shall be punished with",
"imprisonment of either description for a term which may extend to one year,",
"or with fine, or with both.",
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 1 year, or fine, or both—Non-cognizable—",
Bailable—Triable by any Magistrate—Non-compoundable.,
–,
"1. The word “and” omitted by Act 42 of 1953, sec. 4 and Sch. III (w.e.f. 23-12-",
1953).,
Section 267. Making or selling false weight or measure,
"Whoever makes, sells or disposes of any instrument for weighing, or any",
"weight, or any measure of length or capacity which he knows to be false, in",
"order that the same may be used as true, or knowing that the same is likely to",
"be used as true, shall be punished with imprisonment of either description for",
"a term which may extend to one year, or with fine, or with both.",
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 1 year, or fine, or both—Cognizable—Non-",
bailable—Triable by any Magistrate—Non-compoundable.,
Section 268. Public nuisance,
A person is guilty of a public nuisance who does not act or is guilty of an illegal,
"omission which causes any common injury, danger or annoyance to the public",
"or to the people in general who dwell or occupy property in the vicinity, or",
"which must necessarily cause injury, obstruction, danger or annoyance to",
persons who may have occasion to use any public right.,
A common nuisance is not excused on the ground that it causes some,
convenience or advantage.,
Section 269. Negligent act likely to spread infection of disease dangerous to life,
"Whoever unlawfully or negligently does any act which is, and which he knows",
"or has reason to believe to be, likely to spread the infection of any disease",
"dangerous to life, shall be punished with imprisonment of either description",
"for a term which may extend to six month, or with fine, or with both.",
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 6 months, or fine, or both—Cognizable—",
Bailable—Triable by any Magistrate—Non-compoundable.,
Section 270. Malignant act likely to spread infection of disease dangerous to life,
"Whoever malignantly does any act which is, and which he knows or has reason",
"to believe to be, likely to spread the infection of any disease dangerous to life,",
shall be punished with imprisonment of either description for a term which,
"may extend to two years, or with fine, or with both.",
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 2 years, or fine, or both—Cognizable—",
Bailable—Triable by any Magistrate—Non-compoundable.,
Section 271. Disobedience to quarantine rule,
Whoever knowingly disobeys any rule made and promulgated [by the [* * *],
1 2,
"Government [* * *] for putting any vessel into a state of quarantine, or for",
3,
regulating the intercourse of vessels in a state of quarantine with the shore or,
"with other vessels, or for regulating the intercourse between places where an",
"infectious disease prevails and other places, shall be punished with",
imprisonment of either description for a term which may extend to six,
"months, or with fine, or with both.",
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 6 months, or fine, or both—Non-cognizable—",
Bailable—Triable by any Magistrate—Non-compoundable.,
–,
"1. Subs. by the A.O. 1937, for “by the Government of India or by any",
Government”.,
2. The words “Central or any Provincial” omitted by the A.O. 1950.,
3. The words “or the Crown Representative” omitted by the A.O. 1948.,
272. Adulteration of food or drink intended for sale,
"Whoever adulterates any article of food or drink, so as to make such article",
"noxious as food or drink, intending to sell such article as food or drink, or",
"knowing it to be likely that the same will be sold as food or drink, shall be",
punished with imprisonment of either description for a term which may,
"extend to six months, or with fine which may extend to one thousand rupees,",
or with both.,
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 6 months, or fine of 1,000 rupees, or both—",
Non-Cognizable—Bailable—Triable by any Magistrate—Non-compoundable.,
STATE AMENDMENTS,
Orissa,
In section 272 for the words “shall be punished with imprisonment of either,
"description for a term which may extend to six months, or with fine which may",
"extend to one thousand rupees, or with both”, the following shall be substitut-",
"ed, namely:",
“shall be punished with imprisonment for life and shall also be liable to fine:,
"Provided that the Court may, for adequate and special reasons to be",
"mentioned in the judgment, impose a sentence of imprisonment which is less",
than imprisonment for life.”,
"[Vide Orissa Act 3 of 1999, sec. 2 (w.e.f. 27-1-1999)].",
Uttar Pradesh,
In section 272 for the words “shall be punished with imprisonment of either,
"description for a term which may extend to six months, or with fine which may",
"extend to one thousand rupees, or with both” the following shall be substitut-",
"ed, namely:",
“shall be punished with imprisonment for life and shall also be liable to fine:,
"Provided that the court may, for adequate reasons to be mentioned in the",
"judgment, impose a sentence of imprisonment which is less than",
imprisonment for life.”,
"[Vide Uttar Pradesh Act 47 of 1975, sec. 3 (w.e.f. 15-9-1975)].",
West Bengal,
In section 272 for the words “of either description for a term which may,
"extend to six months, or with fine which may extend to one thousand rupees,",
"or with both” the following shall be substituted, namely:",
“for life with or without fine:,
"Provided that the Court may, for adequate and special reasons to be",
"mentioned in the judgment, impose a sentence of imprisonment which is",
less than imprisonment for life.”,
"[Vide West Bengal Act 42 of 1973, sec. 3 (w.e.f. 29-4-1973)].",
Section 273. Sale of noxious food or drink,
"Whoever sells, or offers or exposes for sale, as food or drink, any article which",
"has been rendered or has become noxious, or is in a state unfit for food or",
"drink, knowing or having reason to believe that the same is noxious as food or",
"drink, shall be punished with imprisonment of either description for a term",
"which may extend to six months, or with fine which may extend to one",
"thousand rupees, or with both.",
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 6 months, or fine of 1,000 rupees, or both—",
Non-cognizable—Bailable—Triable by any Magistrate—Non-compoundable.,
State Amendments,
"In section 273, State Amendments are the same as under section 272.",
Section 274. Adulteration of drugs,
Whoever adulterates any drug or medical preparation in such a manner as to,
lessen the efficacy or change the operation of such drug or medical,
"preparation, or to make it noxious, intending that it shall be sold or used for,",
"or knowing it to be likely that it will be sold or used for, any medicinal",
"purpose, as if it had not undergone such adulteration, shall be punished with",
imprisonment of either description for a term which may extend to six,
"months, or with fine which may extend to one thousand rupees, or with both.",
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 6 months, or fine of 1,000 rupees, or both—",
Non-cognizable—Non-Bailable—Triable by any Magistrate—Non-com-,
poundable.,
State Amendments,
"In section 274, State Amendments are the same as under section 272.",
Section 275. Sale of adulterated drugs,
"Whoever, knowing any drug or medical preparation to have been adulterated",
"in such a manner as to lessen its efficacy, to change its operation, or to render",
"it noxious, sells the same, or offers or exposes it for sale, or issues it from any",
"dispensary for medicinal purposes as unadulterated, or causes it to be used for",
"medicinal purposes by any person not knowing of the adulteration, shall be",
punished with imprisonment of either description for a term which may,
"extend to six months, or with fine which may extend to one thousand rupees,",
or with both.,
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 6 months, or fine of 1,000 rupees, or both—",
Non-cognizable—Bailable—Triable by any Magistrate—Non-compoundable.,
State Amendments,
"In section 275, State Amendments are the same as under section 272.",
Section 276. Sale of drug as a different drug or preparation,
"Whoever knowingly sells, or offers or exposes for sale, or issues from a",
"dispensary for medicinal purposes, any drug or medical preparation, as a",
"different drug or medical preparation, shall be punished with imprisonment of",
"either description for a term which may extend to six months, or with fine",
"which may extend to one thousand rupees, or with both.",
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 6 months, or fine of 1,000 rupees, or both—",
Non-cognizable—Bailable—Triable by any Magistrate—Non-compoundable.,
State Amendments,
"In section 276, State Amendments are the same as under section 272.",
Section 277. Fouling water of public spring or reservoir,
Whoever voluntarily corrupts or fouls the water of any public spring or,
"reservoir, so as to render it less fit for the purpose for which it is ordinarily",
"used, shall be punished with imprisonment of either description for a term",
"which may extend to three months, or with fine which may extend to five",
"hundred rupees, or with both.",
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 3 months, or fine of 500 rupees, or both—",
Cognizable—Bailable—Triable by any Magistrate—Non-compoundable.,
Section 278. Making atmosphere noxious to health,
Whoever voluntarily vitiates the atmosphere in any place so as to make it,
noxious to the health of persons in general dwelling or carrying on business in,
"the neighborhood or passing along a public way, shall be punished with fine",
which may extend to five hundred rupees.,
CLASSIFICATION OF OFFENCE,
Punishment—Fine of 500 rupees—Cognizable—Bailable—Triable by any,
Magistrate—Non-compoundable.,
Section 279. Rash driving or riding on a public way,
"Whoever drives any vehicle, or rides, on any public way in a manner so rash or",
"negligent as to endanger human life, or to be likely to cause hurt or injury to",
"any other person, shall be punished with imprisonment of either description",
"for a term which may extend to six months, or with fine which may extend to",
"one thousand rupees, or with both.",
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 6 months, or fine of 1,000 rupees, or both—",
Cognizable—Bailable—Triable by any Magistrate—Non-compoundable.,
Section 279. Rash driving or riding on a public way,
"Whoever drives any vehicle, or rides, on any public way in a manner so rash or",
"negligent as to endanger human life, or to be likely to cause hurt or injury to",
"any other person, shall be punished with imprisonment of either description",
"for a term which may extend to six months, or with fine which may extend to",
"one thousand rupees, or with both.",
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 6 months, or fine of 1,000 rupees, or both—",
Cognizable—Bailable—Triable by any Magistrate—Non-compoundable.,
Section 280. Rash navigation of vessel,
Whoever navigates any vessel in a manner so rash or negligent as to endanger,
"human life, or to be likely to cause hurt or injury to any other person, shall be",
punished with imprisonment of either description for a term which may,
"extend to six months, or with fine which may extend to one thousand rupees,",
or with both.,
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 6 months, or fine of 1,000 rupees, or both—",
Cognizable—Bailable—Triable by any Magistrate—Non-compoundable.,
"Section 281. Exhibition of false light, mark or buoy",
"Whoever exhibits any false light, mark or buoy, intending or knowing it to be",
"likely that such exhibition will mislead any navigator, shall be punished with",
imprisonment of either description for a term which may extend to seven,
"years, or with fine, or with both.",
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 7 years, or fine, or both—Cognizable—",
Bailable—Triable by Magistrate of the first class—Non-compoundable.,
Section 282. Conveying person by water for hire in unsafe or overloaded vessel,
"Whoever knowingly or negligently conveys, or causes to be conveyed for hire,",
"any person by water in any vessel, when that vessel is in such a state or so",
"loaded as to endanger the life of that person , shall be punished with",
imprisonment or either description for a term which may extend to six,
"months, or with fine which may extend to one thousand rupees, or with both.",
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 6 months, or fine of 1,000 rupees, or both—",
Cognizable—Bailable—Triable by any Magistrate—Non-compoundable.,
Section 283. Danger or obstruction in public way or line of navigation,
"Whoever, by doing any act, or by omitting to take order with any property in",
"his possession or under his charge, causes danger, obstruction or injury to any",
"person in any public way or public line of navigation, shall be punished with",
fine which may extend to two hundred rupees.,
CLASSIFICATION OF OFFENCE,
Punishment—Fine of 200 rupees—Cognizable—Bailable—Triable by any,
Magistrate—Non-compoundable.,
Section 284. Negligent conduct with respect to poisonous substance,
"Whoever does, with any poisonous substance, any act in a manner so rash or",
"negligent as to endanger human life, or to be likely to cause hurt or injury to",
"any person,",
or knowingly or negligently omits to take such order with any poisonous,
substance in his possession as is sufficient to guard against any probable,
"danger to human life from such poisonous substance,",
shall be punished with imprisonment of either description for a term which,
"may extend to six months, or with fine which may extend to one thousand",
"rupees, or with both.",
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 6 months, or fine of 1,000 rupees, or both—",
Cognizable—Bailable—Triable by any Magistrate—Non-compoundable.,
Section 285. Negligent conduct with respect to fire or combustible matter,
"Whoever does, with fire or any combustible matter, any act so rashly or",
"negligently as to endanger human life, or to be likely to cause hurt or injury to",
"any other person,",
or knowingly or negligently omits to take such order with any fire or any,
combustible matter in his possession as is sufficient to guard against any,
"probable danger to human life from such fire or combustible matter,",
shall be punished with imprisonment of either description for a term which,
"may extend to six months, or with fine which may extend to one thousand",
"rupees, or with both.",
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 6 months, or fine of 1,000 rupees, or both—",
Cognizable—Bailable—Triable by any Magistrate—Non-compoundable.,
Section 286. Negligent conduct with respect to explosive substance,
"Whoever does, with any explosive substance, any act so rashly or negligently",
"as to endanger human life, or to be likely to cause hurt or injury to any other",
"person,",
or knowingly or negligently omits to take such order with any explosive,
substance in his possession as is sufficient to guard against any probable,
"danger to human life from that substance,",
shall be punished with imprisonment of either description for a term which,
"may extend to six months, or with fine which may extend to one thousand",
"rupees, or with both.",
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 6 months, or fine of 1,000 rupees, or both—",
Cognizable—Bailable—Triable by any Magistrate—Non-compoundable.,
Section 287. Negligent conduct with respect to machinery,
"Whoever does, with any machinery, any act so rashly or negligently as to",
"endanger human life or to be likely to cause hurt or injury to any other person,",
or knowingly or negligently omits to take such order with any machinery in his,
possession or under his care as is sufficient to guard against any probable,
"danger to human life from such machinery,",
shall be punished with imprisonment of either description for a term which,
"may extend to six months, or with fine which may extend to one thousand",
"rupees, or with both.",
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 6 months, or fine of 1,000 rupees, or both—",
Non-cognizable—Bailable—Triable by any Magistrate—Non-compoundable.,
Section 288. Negligent conduct with respect to pulling down or repairing buildings,
"Whoever, in pulling down or repairing any building, knowingly or negligently",
omits to take such order with that building as is sufficient to guard against any,
"probable danger to human life from the fall of that building, or of any part",
"thereof, shall be punished with imprisonment of either description for a term",
"which may extend to six months, or with fine which may extend to one",
"thousand rupees, or with both.",
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 6 months, or fine of 1,000 rupees, or both—",
Non-cognizable—Bailable—Triable by any Magistrate—Non-compoundable,
Section 289. Negligent conduct with respect to animal,
Whoever knowingly or negligently omits to take such order with any animal in,
his possession as is sufficient to guard against any probable danger to human,
"life, or any probable danger of grievous hurt from such animal, shall be",
punished with imprisonment of either description for a term which may,
"extend to six months, or with fine which may extend to one thousand rupees,",
or with both.,
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 6 months, or fine of 1,000 rupees, or both—",
Cognizable—Bailable—Triable by any Magistrate—Non-compoundable.,
Section 290. Punishment for public nuisance in cases not otherwise provided for,
Whoever commits a public nuisance in any case not otherwise punishable by,
"this Code, shall be punished with fine which may extend to two hundred",
rupees.,
CLASSIFICATION OF OFFENCE,
Punishment—Fine of 200 rupees—Non-cognizable—Bailable—Triable by any,
Magistrate—Non-compoundable.,
Section 291. Continuance of nuisance after injunction to discontinue,
"Whoever repeats or continues a public nuisance, having been enjoined by any",
public servant who has lawful authority to issue such injunction not to repeat,
"or continue such nuisance, shall be punished with simple imprisonment for a",
"term which may extend to six months, or with fine, or with both.",
CLASSIFICATION OF OFFENCE,
"Punishment—Simple imprisonment for 6 months, or fine, or both—",
Cognizable-Bailable—Triable by any Magistrate—Non-compoundable.,
"Section 292. Sale, etc., or obscene books, etc",
"[292. Sale, etc., of obscene books, etc.— [(1) For the purposes of sub-section",
1 2,
"(2), a book, pamphlet, paper, writing, drawing, painting, representation, figure",
"or any other object, shall be deemed to be obscene if it is lascivious or appeals",
"to the prurient interest or if its effect, or (where it comprises two or more",
"distinct items) the effect of any one of its items, is, if taken as a whole, such as",
"to tend to deprave and corrupt person, who are likely, having regard to all",
"relevant circumstances, to read, see or hear the matter contained or embodied",
in it.],
[(2)] Whoever,
3,
"(a) sells, lets to hire, distributes, publicly exhibits or in any manner puts into",
"circulation, or for purposes of sale, hire, distribution, public exhibition or",
"circulation, makes, produces or has in his possession any obscene book,",
"pamphlet, paper, drawing, painting, representation or figure or any other",
"obscene object whatsoever, or",
"(b) imports, exports or conveys any obscene object for any of the purposes",
"aforesaid, or knowing or having reason to believe that such object will be sold,",
"let to hire, distributed or publicly exhibited or in any manner put into",
"circulation, or",
(c) takes part in or receives profits from any business in the course of which he,
knows or has reason to believe that any such obscene objects are for any of the,
"purposes aforesaid, made, produced, purchased, kept, imported, exported,",
"conveyed, publicly exhibited or in any manner put into circulation, or",
(d) advertises or makes known by any means whatsoever that any person is,
"engaged or is ready to engage in any act which is an offence under this section,",
"or that any such obscene object can be procured from or through any person,",
or,
"(e) offers or attempts to do any act which is an offence under this section,",
shall be punished [on first conviction with imprisonment of either description,
4,
"for a term which may extend to two years, and with fine which may extend to",
"two thousand rupees, and, in the event of a second or subsequent conviction,",
with imprisonment of either description for a term which may extend to five,
"years, and also with fine which may extend to five thousand rupees].",
[Exception.—This section does not extend to,
5,
"(a) any book, pamphlet, paper, writing, drawing, painting, representation or",
figure,
(i) the publication of which is proved to be justified as being for the public,
"good on the ground that such book, pamphlet, paper, writing, drawing,",
"painting, representation or figure is in the interest of science, literature, art or",
"learning or other objects of general concern, or",
(ii) which is kept or used bona fide for religious purposes;,
"(b) any representation sculptured, engraved, painted or otherwise represented",
on or in,
(i) any ancient monument within the meaning of the Ancient Monuments and,
"Archaeological Sites and Remains Act, 1958 (24 of 1958), or",
"(ii) any temple, or on any car used for the conveyance of idols, or kept or used",
for any religious purpose.]],
CLASSIFICATION OF OFFENCE,
"Punishment—On first conviction, with imprisonment for 2 years, and with",
"fine of 2,000 rupees, and, in the event of second of subsequent conviction,",
"with imprisonment for five years and with fine of 5,000 rupees—Cognizable—",
Bailable—Triable by any Magistrate—Non-compoundable.,
STATE AMENDMENTS,
Orissa,
Same as in Tamil Nadu.,
"[Vide Orissa Act 13 of 1962, sec. 2 (w.e.f. 16-5-1962)].",
Tamil Nadu,
"In section 292, for the words “shall be punished with imprisonment of either",
description for a term which may extend to three months or with fine or with,
"both” substitute the following, namely:",
“shall be punished with imprisonment of either description for a term which,
may extend to two years or with fine or with both:,
"Provided that for a second or any subsequent offence under this section, he",
shall be punished with imprisonment of either description for a term which,
shall not be less than six months and not more than two years and with fine.,
"[Vide Tamil Nadu Act 25 of 1960, sec. 2 (w.e.f. 9-11-1960)].",
Orissa,
Section 292A,
Same as in Tamil Nadu.,
"[Vide Orissa Act 13 of 1962, sec. 3 (w.e.f. 16-5-1962)].",
Tamil Nadu,
"After section 292, insert the following new section namely:",
"292A. Printing, etc., of grossly indecent or scurrilous matter or",
"matter intended for blackmail.—Whoever,",
"(a) prints or causes to be printed in any newspaper, periodical or circular, or",
"exhibits or causes to be exhibited, to public view or distributes or causes to be",
distributed or in any manner puts into circulation any picture or any printed,
"or written document which is grossly indecent, or in scurrilous or intended for",
blackmail; or,
"(b) sells or lets for hire, or for purposes of sale or hire makes, produces or has",
"in his possession, any picture or any printed or written document which is",
grossly indecent or is scurrilous or intended for blackmail; or,
(c) conveys any picture or any printed or written document which is grossly,
indecent or is scurrilous or intended for blackmail knowing or having reason,
"to believe that such picture or document will be printed, sold, let for hire",
distributed or publicly exhibited or in any manner put into circulation; or,
"(d) takes part in, or receives profits from, any business in the course of which",
"he knows or has reason to believe that any such newspaper, periodical,",
"circular, picture or other printed or written document is printed, exhibited,",
"distributed, circulated, sold, let for hire, made, produced, kept, conveyed or",
purchased; or,
(e) advertises or makes known by any means whatsoever that any person is,
engaged or is ready to engage in any Act which is an offence under this,
"section, or that any such newspaper, periodical, circular, picture or other",
printed or written document which is grossly indecent or is scurrilous or,
"intended for blackmail, can be procured from or through any person; or",
(f) offers or attempts to do any act which is an offence under this,
section *[shall be punished with imprisonment of either description for a term,
"which may extend to two years, or with fine, or with both]:",
"Provided that for a second or any subsequent offence under this section, he",
shall be punished with imprisonment of either description for a term which,
shall not be less than six months **[and not more than two years].,
Explanation I,
"For the purposes of this section, the word scurrilous shall be deemed to",
include any matter which is likely to be injurious to morality or is calculated to,
injure any person:,
Provided that it is not scurrilous to express in good faith anything whatever,
respecting the conduct of,
(i) a public servant in the discharge of his public functions or respecting his,
character so far as his character appears in that conduct and no further; or,
"(ii) any person touching any public question, and respecting his character, so",
far as his character appears in that conduct and no further.,
Explanation II,
"In deciding whether any person has committed an offence under this section,",
"the court shall have regard inter alia, to the following considerations",
"(a) The general character of the person charged, and where relevant the nature",
of his business;,
(b) the general character and dominant effect of the matter alleged to be,
grossly indecent or scurrilous or intended for blackmail;,
(c) any evidence offered or called by or on behalf of the accused person as to,
his intention in committing any of the acts specified in this section.,
"[Vide Tamil Nadu Act 25 of 1960, sec. 3 (w.e.f. 9-11-1960)].",
* Subs. by Tamil Nadu Act 30 of 1984.,
"** Ins. by Tamil Nadu Act 30 of 1984, sec. 2 (w.e.f. 28-6-1984).",
—–,
"1. Subs. by Act 8 of 1925, sec. 2, for the original section.",
"2. Ins. by Act 36 of 1969, sec. 2 (w.e.f. 7-9-1969).",
"3. Section 292 renumbered as sub-section (2) thereof by Act 36 of 1969, sec. 2",
(w.e.f. 7-9-1969).,
"4. Subs. by Act 36 of 1969, sec. 2, for certain words (w.e.f. 7-9-1969).",
"5. Subs. by Act 36 of 1969, sec. 2, for Exception (w.e.f. 7-9-1969).",
"Section 293. Sale, etc., of obscene objects to young person",
"[293. Sale, etc., of obscene objects to young person.—Whoever sells, lets to",
1,
"hire, distributes, exhibits or circulates to any person under the age of twenty",
"years any such obscene object as is referred to in the last preceding section, or",
"offers or attempts so to do, shall be punished [on first conviction with",
2,
imprisonment of either description for a term which may extend to three,
"years, and with fine which may extend to two thousand rupees, and, in the",
"event of a second or subsequent conviction, with imprisonment of either",
"description for a term which may extend to seven years, and also with fine",
which may extend to five thousand rupees].],
CLASSIFICATION OF OFFENCE,
"Punishment—On first conviction, with imprisonment for 3 years, and with fine",
"of 2,000 rupees, and, in the event of second of subsequent conviction, with",
"imprisonment for 7 years, and with fine of 5,000 rupees—Cognizable—",
Bailable—Triable by any Magistrate—Non-compoundable.,
STATE AMENDMENTS,
Orissa,
Same as in Tamil Nadu.,
"[Vide Orissa Act 13 of 1962, sec. 4 (w.e.f. 16-5-1962)].",
Tamil Nadu,
"In Section 293,",
(a) for the words “any such obscene object as is referred to in the last,
"preceding section” the words, figures and letter “any such obscene object as is",
"referred to in section 292 or any such newspaper, periodical, circular, picture",
or other printed or written document as is referred to in section 292-A” shall,
be substituted;,
(b) for the words “which may extend to six months” the words “which may,
extend to three years” shall be substituted;,
"(c) in the marginal note, after the words “obscene objects” the words “any",
grossly indecent or scurrilous matter intended for blackmail shall be inserted.”,
"[Vide Tamil Nadu Act 25 of 1960, sec. 4 (w.e.f. 9-11-1960)].",
—-,
"1. Subs. by Act 8 of 1925, sec. 2, for the original section.",
"2. Subs. by Act 36 of 1969, sec. 2, for certain words (w.e.f. 7-9-1969).",
Section 294. Obscene acts and songs,
"[294. Obscene acts and songs.—Whoever, to the annoyance of others",
1,
"(a) does any obscene act in any public place, or",
"(b) sings, recites or utters any obscene song, ballad or words, in or near any",
"public place,",
shall be punished with imprisonment of either description for a term which,
"may extend to three months, or with fine, or with both.]",
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 3 months, or fine, or both—Cognizable—",
Bailable—Triable by any Magistrate—Non-compoundable.,
"1. Subs. by Act 3 of 1895, sec. 3, for the original section.",
Section 294A. Keeping lottery office,
[294A. Keeping lottery office.—Whoever keeps any office or place for the,
1,
purpose of drawing any lottery [not being [a State lottery] or a lottery,
2 3,
"authorised by the [State] Government], shall be punished with imprisonment",
4,
"of either description for a term which may extend to six months, or with fine,",
or with both.,
"And whoever publishes any proposal to pay any sum, or to deliver any goods,",
"or to do or forbear doing anything for the benefit of any person, on any event",
"or contingency relative or applicable to the drawing of any ticket, lot, number",
"or figure in any such lottery, shall be punished with fine which may extend to",
one thousand rupees.],
CLASSIFICATION OF OFFENCE,
Para I,
"Punishment—Imprisonment for 6 months, or fine, or both—Non-cognizable—",
Bailable—Triable by any Magistrate—Non-compoundable.,
Para II,
"Punishment—Fine of 1,000 rupees—Non-Cognizable—Bailable—Triable by",
any Magistrate—Non-compoundable.,
STATE AMENDMENTS,
Andhra Pradesh,
Section 294A is repealed.,
"[Vide Andhra Pradesh Act 16 of 1968, sec. 27 (w.e.f. 1-2-1969)].",
Gujarat,
Section 294A is repealed.,
"[Vide Bombay Act 82 of 1958, sec. 33 read with Bombay Act 11 of 1960, sec. 87].",
Karnataka,
"In Karnataka area except Ballary District, section 294A is repealed.",
"[Vide Mysore Act 27 of 1957, sec. 33].",
Maharashtra,
Section 294A is repealed.,
"[Vide Bombay Act 82 of 1958, sec. 33 (w.e.f. 1-5-1959)]",
Manipur,
Section 294A is repealed.,
"[Vide Manipur Act 2 of 1992, sec. 30 (w.e.f. 6-8-1992)].",
Uttar Pradesh,
Section 294A Omitted.,
"[Vide Uttar Pradesh Act 24 of 1995, sec. 11].",
"1. Ins. by Act 27 of 1870, sec. 10.",
"2. Subs. by the A.O. 1937, for “not authorised by Government”.",
"3. Subs. by Act 3 of 1951, sec. 3 and Sch., for “a lottery organised by the Central",
Government or the Government of a Part A State or a Part B State”.,
"4. Subs. by the A.O. 1950, for “Provincial”.",
Section 295. Injuring or defiling place of worship with intent to insult the religion of any,
class,
"Whoever destroys, damages or defiles any place of worship, or any object held",
sacred by any class of persons with the intention of thereby insulting the,
religion of any class of persons or with the knowledge that any class of persons,
"is likely to consider such destruction, damage or defilement as a insult to their",
"religion, shall be punished with imprisonment of either description for a term",
"which may extend to two years, or with fine, or with both.",
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 2 years, or fine, or both—Cognizable—Non-",
bailable—Triable by any Magistrate—Non-compoundable.,
"Section 295A. Deliberate and malicious acts, intended to outrage religious feelings or any",
class by insulting its religion or religious beliefs,
"[295A. Deliberate and malicious acts, intended to outrage religious feelings or",
1,
"any class by insulting its religion or religious beliefs.— Whoever, with",
deliberate and malicious intention of outraging the religious feelings of any,
"class of [citizens of India], [by words, either spoken or written, or by signs or",
2 3,
"by visible representations or otherwise], insults or attempts to insult the",
"religion or the religious beliefs of that class, shall be punished with",
imprisonment of either description for a term which may extend to [three,
4,
"years], or with fine, or with both.]",
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 3 years, or fine, or both—Cognizable—Non-",
bailable—Triable by Magistrate of the first class—Non-compoundable.,
"1. Ins. by Act 25 of 1927, sec. 2.",
"2. Subs. by the A.O. 1950, for “His Majesty’s subjects”.",
"3. Subs. by Act 41 of 1961, sec. 3, for certain words (w.e.f. 27-9-1961).",
"4. Subs. by Act 41 of 1961, sec. 3, for “two years” (w.e.f. 27-9-1961).",
Section 296. Disturbing religious assembly,
Whoever voluntarily causes disturbance to any assembly lawfully engaged in,
"the performance of religious worship, or religious ceremonies, shall be",
punished with imprisonment of either description for a term which may,
"extend to one year, or with fine, or with both.",
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 1 year, or fine, or both—Cognizable—Bailable",
—Triable by any Magistrate—Non-compoundable.,
"Section 297. Trespassing on burial places, etc.",
"Whoever, with the intention of wounding the feelings of any person, or of",
"insulting the religion of any person, or with the knowledge that the feelings of",
"any person are likely to be wounded, or that the religion or any person is likely",
"to be insulted thereby,",
"commits any trespass in any place of worship or on any place of sepulture, or",
any place set apart from the performance of funeral rites or as a depository for,
"the remains of the dead, or offers any indignity to any human corpse, or",
causes disturbance to any persons assembled for the performance of funeral,
"ceremonies,",
shall be punished with imprisonment of either description for a term which,
"may extend to one year, or with fine, or with both.",
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 1 year, or fine, or both—Cognizable—Bailable",
—Triable by any Magistrate—Non-compoundable.,
"Section 298. Uttering, words, etc., with deliberate intent to wound the religious feelings",
of any person,
"Whoever, with the deliberate intention of wounding the religious feelings of",
"any person, utters any word or makes any sound in the hearing of that person",
or makes any gesture in the sight of that person or places any object in the,
"sight of that person, shall be punished with imprisonment of either",
"description for a term which may extend to one year, or with fine, or with",
both.,
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 1 year, or fine, or both—Non-cognizable—",
Bailable—Triable by any Magistrate—Compounded by the person whose,
religious feelings are intended to be wounded.,
State Amendment,
Andhra Pradesh,
In Andhra Pradesh offence under section 298 is cognizable.,
"[Vide A.P.G.O. Ms. No. 732, dated 5th December, 1991].",
Section 299. Culpable homicide,
"Who ever causes death by doing an act with the intention of causing death, or",
"with the intention of causing such bodily injury as is likely to cause death, or",
"with the knowledge that he is likely by such act to cause death, commits the",
offence of culpable homicide.,
Illustrations,
"(a) A lays sticks and turf over a pit, with the intention of there by causing",
"death, or with the knowledge that death is likely to be thereby caused. Z",
"believing the ground to be firm, treads on it, falls in and is killed. A has",
committed the offence of culpable homicide.,
"(b) A knows Z to be behind a bush. B does not know it A, intending to cause, or",
"knowing it to be likely to cause Z’s death, induces B fires and kills Z. Here B",
may be guilty of no offence; but A has committed the offence of culpable,
homicide.,
"(c) A, by shooting at a fowl with intent to kill and steal it, kills B who is behind",
"a bush; A not knowing that he was there. Here, although A was doing an",
"unlawful act, he was not guilty of culpable homicide, as he did not intend to",
"kill B, or to cause death by doing an act that he knew was likely to cause death.",
Explanation 1,
A person who causes bodily injury to another who is labouring under a,
"disorder, disease or bodily infirmity, and thereby accelerates the death of that",
"other, shall be deemed to have caused his death.",
Explanation 2,
"Where death is caused by bodily injury, the person who causes such bodily",
"injury shall be deemed to have caused the death, although by resorting to",
proper remedies and skilful treatment the death might have been prevented.,
Explanation 3,
The causing of the death of child in the mother’s womb is not homicide. But it,
"may amount to culpable homicide to cause the death of a living child, if any",
"part of that child has been brought forth, though the child may not have",
breathed or been completely born.,
Section 300. Murder,
"Except in the cases hereinafter excepted, culpable homicide is murder, if the",
"act by which the death is caused is done with the intention of causing death, or",
Secondly.—If it is done with the intention of causing such bodily injury as the,
offender knows to be likely to cause the death of the person to whom the harm,
"is caused, or",
Thirdly.—If it is done with the intention of causing bodily injury to any person,
and the bodily injury intended to be inflicted is sufficient in the ordinary,
"course of nature to cause death, or",
Fourthly.—If the person committing the act knows that it is so imminently,
"dangerous that it must, in all probability, cause death or such bodily injury as",
"is likely to cause death, and commits such act without any excuse for incurring",
the risk of causing death or such injury as aforesaid.,
Illustrations,
(a) A shoots Z with the intention of killing him. Z dies in consequence. A,
commits murder.,
"(b) A, knowing that Z is labouring under such a disease that a blow is likely to",
"cause his death, strikes him with the intention of causing bodily injury. Z dies",
"in consequence of the blow. A is guilty of murder, although the blow might not",
have been sufficient in the ordinary course of nature to cause the death of a,
"person in a sound state of health. But if A, not knowing that Z is labouring",
"under any disease, gives him such a blow as would not in the ordinary course",
"of nature kill a person in a sound state of health, here A, although he may",
"intend to cause bodily injury, is not guilty of murder, if he did not intend to",
"cause death, or such bodily injury as in the ordinary course of nature would",
cause death.,
(c) A intentionally gives Z a sword-cut or club-wound sufficient to cause the,
"death of a man in the ordinary course of nature. Z dies in consequence. Here,",
"A is guilty of murder, although he may not have intended to cause Z’s death.",
(d) A without any excuse fires a loaded cannon into a crowd of persons and,
"kills one of them. A is guilty of murder, although he may not have had a",
premeditated design to kill any particular individual.,
Exception 1.—When culpable homicide is not murder.—Culpable,
"homicide is not murder if the offender, whilst deprived of the power of self-",
"control by grave and sudden provocation, causes the death of the person who",
gave the provocation or causes the death of any other person by mistake or,
accident.,
The above exception is subject to the following provisos:,
First.—That the provocation is not sought or voluntarily provoked by the,
offender as an excuse for killing or doing harm to any person.,
Secondly.—That the provocation is not given by anything done in obedience to,
"the law, or by a public servant in the lawful exercise of the powers of such",
public servant.,
Thirdly.—That the provocation is not given by anything done in the lawful,
exercise of the right of private defence.,
Explanation,
Whether the provocation was grave and sudden enough to prevent the offence,
from amounting to murder is a question of fact.,
Illustrations,
"(a) A, under the influence of passion excited by a provocation given by Z,",
"intentionally kills. Y, Z’s child. This is murder, in as much as the provocation",
"was not given by the child, and the death of the child was not caused by",
accident or misfortune in doing an act caused by the provocation.,
"(b) Y gives grave and sudden provocation to A. A, on this provocation, fires a",
"pistol at Y, neither intending nor knowing himself to be likely to kill Z, who is",
"near him, but out of sight. A kills Z. Here A has not committed murder, but",
merely culpable homicide.,
"(c) A is lawfully arrested by Z, a bailiff. A is excited to sudden and violent",
"passion by the arrest, and kills Z. This is murder, in as much as the",
provocation was given by a thing done by a public servant in the exercise of his,
powers.,
"(d) A appears as witness before Z, a Magistrate, Z says that he does not believe",
"a word of A’s deposition, and that A has perjured himself. A is moved to",
"sudden passion by these words, and kills Z. This is murder.",
"(e) A attempts to pull Z’s nose, Z, in the exercise of the right of private defence,",
lays hold of A to prevent him from doing so. A is moved to sudden and violent,
"passion in consequence, and kills Z. This is murder, in as much as the",
provocation was given by a thing done in the exercise of the right of private,
defence.,
"(f) Z strikes B. B is by this provocation excited to violent rage. A, a bystander,",
"intending to take advantage of B’s rage, and to cause him to kill Z, puts a knife",
into B’s hand for that purpose. B kills Z with the knife. Here B may have,
"committed only culpable homicide, but A is guilty of murder.",
"Exception 2.—Culpable homicide is not murder if the offender, in the exercise",
"in good faith of the right of private defence of person or property, exceeds the",
power given to him by law and causes the death of the person against whom,
"he is exercising such right of defence without premeditation, and without any",
intention of doing more harm than is necessary for the purpose of such,
defence.,
Illustration,
"Z attempts to horsewhip A, not in such a manner as to cause grievous hurt to",
A. A draws out a pistol. Z persists in the assault. A believing in good faith that,
"he can by no other means prevent himself from being horsewhipped, shoots Z",
"dead. A has not committed murder, but only culpable homicide.",
"Exception 3.—Culpable homicide is not murder if the offender, being a public",
"servant or aiding a public servant acting for the advancement of public justice,",
"exceeds the powers given to him by law, and causes death by doing an act",
"which he, in good faith, believes to be lawful and necessary for the due",
discharge of his duty as such public servant and without ill-will towards the,
person whose death is caused.,
Exception 4.—Culpable homicide is not murder if it is committed without,
premeditation in a sudden fight in the heat of passion upon a sudden quarrel,
and without the offender having taken undue advantage or acted in a cruel or,
unusual manner.,
Explanation,
It is immaterial in such cases which party offers the provocation or commits,
the first assault.,
Exception 5.—Culpable homicide is not murder when the person whose death,
"is caused, being above the age of eighteen years, suffers death or takes the risk",
of death with his own consent.,
Illustration,
"A, by instigation, voluntarily causes, Z, a person under eighteen years of age to",
"commit suicide. Here, on account of Z’s youth, he was incapable of giving",
consent to his own death; A has therefore abetted murder.,
‘And commits such act without any excuse for incurring the risk of,
causing death’,
"Merely causing death, by doing an act with the knowledge that is so",
"imminently dangerous that it must, in all probability cause death, is not",
"murder. In order that an act, done with such knowledge, should constitute",
"murder, it is necessary that it should be committed without any excuse for",
"incurring the risk of causing the death or bodily injury. An act, done with the",
"knowledge of its consequences, is not prima facie murder, it becomes murder",
only if it can be positively affirmed that there was no excuse. The requirements,
of the section are not satisfied by the act of homicide being one of extreme,
"recklessness. It must, in addition, be wholly in inexcusable. When a risk in",
incurred even a risk of the gravest possible character which must normally,
"result in death, the taking of that risk is not murder unless it was inexcuatble",
"to take it; Emperor v. Dhirajia, AIR 1940 All 486; Gyarsibai w/o Jagannath v.",
"State, AIR 1953 MB 61.",
Clause ‘thirdly’ of section 300 distinguished from the second clause,
of section 299,
The difference between the second clause of section 299 and clause ‘thirdly’ of,
section 300 to one of degree of probability of death resulting from the,
"intended bodily injury. To put it more broadly, it is the degree of probability of",
"death which determines whether a culpable homicide is of the gravest,",
"medium, or lowest degree. The word likely in second clause of section 299",
conveys the sense of probable as distinguished from a mere possibility. The,
words ‘bodily injury ………… sufficient in the ordinary course of nature to cause,
"death’, in clause thirdly of section 300, mean that death will be the most",
probable result of the injury having regard to the ordinary course of nature;,
"State of Andhra Pradesh v. Rayavarpu Punayya, AIR 1977 SC 45.",
Consent,
Circumstantial evidence is not sufficient to convict accused when possibility of,
deceased receiving fatal injury by fall cannot be ruled out; State of Rajasthan,
"v. Kamla, (1991) Cr LJ 602 (SC).",
Essential of murder,
(i) Having regard to the number of injuries inflicted on the deceased it was not,
possible to uphold the contention that there was no intention to kill; Prabhu v.,
"State of Madhya Pradesh, (1991) Cr LJ 1373 (1373-1374) (SC).",
"(ii) When there was no evidence as to how death came about, evidence relating",
to charge of murder was held to be insufficient and unacceptable; Kedar Nath,
"v. State of Madhya Pradesh, (1991) Cr LJ 989 (SC).",
Exception 4: Heat of passion,
Mere sudden quarrel would not entitle the accused to seek for Exception 4 to,
"section 300; Samuthram alias Samudra Rajan v. State of Tamil Nadu, (1997) 2",
Crimes 185 (Mad).,
Exception 4: Scope and applicability of,
"To invoke Exception 4 to section 300, four requirements must be satisfied,",
namely (i) it was a sudden fight; (ii) there was no premeditation; (iii) the act,
was done in a heat of passion; and (iv) the assailant had not taken any undue,
advantage or acted in a cruel manner… The number of wounds caused during,
the occurrence is not a decisive factor but what is important is that the,
occurrence must have been sudden and unpremeditated and the offender,
"must have acted in a fit of anger. Of course, the offender must not have taken",
"any undue advantage or acted in a cruel manner. Where, on a sudden quarrel,",
a person in the heat of the moment picks up a weapon which is handy and,
"causes injuries, one of which proves fatal, he would be entitled to the benefit of",
this Exception provided he has not acted cruelly; Samuthram alias Samudra,
"Rajan v. State of Tamil Nadu, (1997) 2 Crimes 185 (Mad).",
Fight,
Where a mutual conflict develops and there is no reliable and acceptable,
"evidence as to how it started and as to who was the aggressor, it will not be",
correct to assume private defence for both sides. Such a case will be a case of,
sudden fight and conflict and has to be dealt with under Exception 4 to section,
"300 of the Code; Januram v. State of Madhya Pradesh, (1997) 2 Crimes 582",
(MP).,
Injuries on vital and non-vital parts of body of the deceased,
Infliction of the injury on the vital part of the body with the agricultural,
"instrument by the enraged accused in a sudden quarrel—Held, accused did not",
"cause the injury intentionally; Patel Rasiklal Becharbhai v. State of Gujarat,",
AIR 1992 SC 1150.,
Injury which is likely to cause death and injury which is sufficient,
in ordinary course of nature to cause death,
(i) Accused inflicted 18 injuries in the arms and legs of the deceased with a,
gandasa. None of the injuries was on a vital part of the body of the deceased.,
The obvious motive was revenge because the deceased’s son had caused a,
"serious leg injury which resulted in the amputations of the leg of P, the son of",
appellant. The Court held that one of the injuries inflicted by the appellant was,
on a vital part of the body of the deceased whom the appellant had no,
"intention to kill, at the same time though he had no intention to kill, the",
appellant must have known that he was inflicting such bodily injuries as were,
likely to cause death as a consequence of which death did happen. The,
appellants conviction for murder was accordingly altered to one for culpable,
"homicide; Kapur Singh v. State of Pepsu, AIR 1956 SC 654.",
(ii) It was held by the Supreme Court that whether the injury intended by the,
accused and actually inflicted by him is sufficient in the ordinary course of,
"nature to cause death or not, must be determined in each case on the basis of",
"the facts and circumstances. In the instant case, the injury caused was the",
result of blow with a knife in the stomach which was given with such force that,
the weapon had penetrated the abdomen and had injured the bowels.,
According to the doctor the injury was sufficient in the ordinary course of,
"nature to cause death. Therefore, in the absence of any circumstances to show",
"that the injury was caused accidentally or unintentionally, it had to be",
presumed that the accused had intended to cause the inflicted injury and the,
"condition of cl. (3) of section 300, I.P.C. were satisfied. Conviction under",
"section 302 was upheld; Virsa Singh v. State of Punjab, AIR 1958 SC 465.",
(iii) The appellant had given six blows with a lathi stick on the head of the,
"deceased, one of which fractured his skull. The deceased died three weeks",
after the incident. The injury which broke the skull had caused a depression in,
the brain and death was due to brain hemorrhage. It was held that the accused,
was liable under section 304 for culpable homicide. The Court held that even,
though the blows were inflicted by the appellant on the head of the deceased,
"with force, the lathi not being an iron rod and the deceased being a young man",
strongly built the appellant could not under the circumstances be held to have,
been actuated with the intention of causing the death of the deceased nor do,
one could think despite the medical evidence that the injury was sufficient in,
the ordinary course of nature to cause death. Seeing that he survived for three,
weeks and looking on the doctor’s admission that an injury of that kind is not,
"incurable; Inder Singh Bagga Singh v. State of Pepsu, AIR 1955 SC 439.",
Intention and knowledge,
"It is fallacious to contend that when death is caused by a single blow, clause",
"thirdly is not attracted and, therefore, it would not amount to murder. The",
ingredient ‘intention’ in that clause gives clue in a given case whether offence,
"involved is murder or not; Jai Prakash v. State (Delhi Administration), (1991)",
1 Crimes 474 (SC).,
Proof of sufficiency of the injury to cause death,
(i) Where evidence of both eye witnesses reliable and well corroborated by,
medical and other evidence on record inspires confidence that accused had,
intention to kill deceased then conviction is liable to be sustained; Robba,
"Ramanna Dora v. State of Andhra Pradesh, 2000 Cr LJ 118 (AP).",
(ii) Where the ocular evidence is explicit and fully supported by medical,
evidence and evidence of other witnesses and evidence of witnesses who,
apprehended the accused after some hours of occurrence with blood stained,
weapon then absence of proof of motive will not render the entire prosecution,
"case unbelievable, therefore, charge of murder against accused proved beyond",
"all reasonable doubt; Ram Nath Novia v. State of Bihar, 2000 Cr LJ 318 (Pat).",
(iii) Where the evidence of eye witnesses regarding assault to deceased by,
"accused persons was truthful, reliable and clearly corroborated by medical",
evidence and common intention of accused persons to commit murder of,
deceased also proved therefore conviction under section 300/34 is proper;,
"Ratan Debnath v. State of Tripura, 2000 Cr LJ 237 (Gau).",
(iv) Chain of evidence must be complete with fully established circumstances,
not to leave any reasonable ground for a conclusion consistent with the,
innocence of accused. It should be of conclusive nature; Arvind v. State (Delhi,
"Admn.), 1999 (4) SCC 4861: 1999 (3) JT 554.",
Provocation must be grave,
"The test of “grave and sudden” provocation is whether a reasonable man,",
"belonging to the same class of society as the accused, placed in the situation in",
which the accused was placed would be so provoked as to lose his self-control.,
"(2) In India, words and gestures may also, under certain circumstances, cause",
grave and sudden provocation to an accused so as to bring his act within the,
First Exception to section 300. (3) The mental background created by the,
previous act of the victim may be taken into consideration in ascertaining,
whether the subsequent act caused grave and sudden provocation for,
"committing the offence; Venkatesan v. State of Tamil Nadu, (1997) 3 Crimes",
146 (Mad).,
Reasonable man’s—Test,
"The accused, a naval officer, was charged with the murder of P, a businessman",
"of Bombay, for having illicit intimacy with his wife. On coming to know from",
"his wife about the illicit relationship with the deceased, he went to the ship,",
took from the stores a semi-automatic revolver and six cartridges on a false,
"pretext, loaded the same, went to the flat of P entered in his bedroom and shot",
him dead after a heated exchange of words. The court held that the test to be,
applied is that of the effect of the provocation on a reasonable man; and in,
applying that test it is of particular importance to consider whether a sufficient,
interval has elapsed since the receiving of the information which caused the,
provocation to allow a reasonable man to cool down; K.M. Nanavati v. State of,
"Maharasthra, AIR 1962 SC 605.",
Scope,
"It is now well settled principle of law that if two views are possible, one in",
"favour of the accused and the other adversely against it, the view favouring the",
"accused must be accepted; Raghunath v. State of Haryana, AIR 2003 SC 165.",
"With the knowledge that he is likely, by such act, to cause death",
(i) In case of murder in which the conclusion of guilt is drawn by prosecution,
it must be fully established beyond all reasonable doubt and consistent with,
"the guilt of the accused; S.D. Soni v. State of Gujarat, (1991) Cr LJ 330 (SC).",
(ii) Legislature had advisedly used the words: “bodily injury as the offender,
"knows to be likely to cause death”. Therefore, from an understanding of the",
"legislative intent of section 300, I.P.C., a culpable homicide becomes murder if",
"the attacker causes an injury which he knows is likely to cause death and, of",
"course, consequent to such injury, the victim should die; State of Rajashtan v.",
"Dhool Singh, AIR 2004 SC 1264.",
Section 301. Culpable homicide by causing death of person other than person whose,
death was intended,
"If a person, by doing anything which he intends or knows to be likely to cause",
"death, commits culpable homicide by causing the death of any person, whose",
"death he neither intends nor knows himself to be likely to cause, the culpable",
homicide committed by the offender is of the description of which it would,
have been if he had caused the death of the person whose death he intended or,
knew himself to be likely to cause.,
Section 302. Punishment for murder,
"Whoever commits murder shall be punished with death, or [imprisonment for",
1,
life] and shall also be liable to fine.,
CLASSIFICATION OF OFFENCE,
"Punishment—Death, or imprisonment for life, and fine—Cognizable—Non-",
bailable—Triable by Court of Session—Non-compoundable.,
"1. Subs. by Act 26 of 1955, sec. 117 and Sch., for “transportation for life” (w.e.f.",
1-1-1956).,
Section 303. Punishment for murder by life-convict,
"Whoever, being under sentence of [imprisonment for life], commits murder,",
1,
shall be punished with death.,
CLASSIFICATION OF OFFENCE,
Punishment—Death—Cognizable—Non-bailable—Triable by Court of Session,
—Non-compoundable.,
—–,
"1. Subs. by Act 26 of 1955, sec. 117 and Sch., for “transportation for life” (w.e.f.",
1-1-1956).,
Section 304. Punishment for culpable homicide not amounting to murder,
Whoever commits culpable homicide not amounting to murder shall be,
"punished with [imprisonment for life], or imprisonment of either description",
1,
"for a term which may extend to ten years, and shall also be liable to fine, if the",
"act by which the death is caused is done with the intention of causing death, or",
"of causing such bodily injury as is likely to cause death,",
or with imprisonment of either description for a term which may extend to ten,
"years, or with fine, or with both, if the act is done with the knowledge that it is",
"likely to cause death, but without any intention to cause death, or to cause",
such bodily injury as is likely to cause death.,
CLASSIFICATION OF OFFENCE,
Para I,
"Punishment—Imprisonment for life, or imprisonment for 10 years and fine—",
Cognizable—Non-bailable—Triable by Court of Session—Non-compoundable.,
Para II,
"Punishment—Imprisonment for 10 years, or fine, or both—Cognizable—Non-",
bailable—Triable by Court of Session—Non-compoundable.,
"1. Subs. by Act 26 of 1955, sec. 117 and Sch., for “transportation for life” (w.e.f.",
1-1-1956).,
Section 304A. Causing death by negligence,
[304A. Causing death by negligence.—Whoever causes the death of any,
1,
"person by doing any rash or negligent act not amounting to culpable homicide,",
shall be punished with imprisonment of either description for a term which,
"may extend to two years, or with fine, or with both.]",
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 2 years, or fine, or both—Cognizable—",
Bailable—Triable by Magistrate of the first class—Non-compoundable.,
"1. Ins. by Act 27 of 1870, sec. 12.",
Section 304B. Dowery death,
[304B. Dowry death.—(1) Where the death of a woman is caused by any burns,
1,
or bodily injury or occurs otherwise than under normal circumstances within,
seven years of her marriage and it is shown that soon before her death she was,
subjected to cruelty or harassment by her husband or any relative of her,
"husband for, or in connection with, any demand for dowry, such death shall be",
"called “dowry death”, and such husband or relative shall be deemed to have",
caused her death.,
Explanation,
"For the purpose of this sub-section, “dowry” shall have the same meaning as in",
"section 2 of the Dowry Prohibition Act, 1961 (28 of 1961).",
(2) Whoever commits dowry death shall be punished with imprisonment for a,
term which shall not be less than seven years but which may extend to,
imprisonment for life.],
CLASSIFICATION OF OFFENCE,
Punishment—Imprisonment of not less than 7 years but which may extend to,
imprisonment for life—Cognizable—Non-bailable—Triable by Court of Session,
—Non-compoundable.,
–,
"1 Ins. by Act 43 of 1986, sec. 10 (w.e.f. 19-11-1986).",
Section 305. Abetment of suicide of child or insane person,
"If any person under eighteen years of age, any insane person, any delirious",
"person, any idiot, or any person in a state of intoxication, commits suicide,",
"whoever abets the commission of such suicide, shall be punished with death",
"or [ imprisonment for life], or imprisonment for a term not exceeding ten",
1,
"years, and shall also be liable to fine.",
CLASSIFICATION OF OFFENCE,
"Punishment—Death, or imprisonment for life, or imprisonment for 10 years",
and fine—Cognizable—Non-bailable—Triable by Court of Session—Non-,
compoundable.,
–,
"1. Subs. by Act 26 of 1955, sec. 117 and Sch., for “transportation for life” (w.e.f.",
1-1-1956).,
Section 306. Abetment of suicide,
"If any person commits suicide, whoever abets the commission of such suicide,",
shall be punished with imprisonment of either description for a term which,
"may extend to ten years, and shall also be liable to fine.",
CLASSIFICATION OF OFFENCE,
Punishment—Imprisonment for 10 years and fine—Cognizable—Non-bailable,
—Triable by Court of Session—Non-compoundable.,
Section 307. Attempt to murder,
"Whoever does any act with such intention or knowledge, and under such",
"circumstances that, if he by that act caused death, he would be guilty of",
"murder, shall be punished with imprisonment of either description for a term",
"which may extend to ten years, and shall also be liable to fine; and if hurt is",
"caused to any person by such act, the offender shall be liable either",
"to [imprisonment for life], or to such punishment as is hereinbefore",
1,
mentioned.,
Attempts by life convicts.— 2[When any person offending under this section,
"is under sentence of [imprisonment for life], he may, if hurt is caused, be",
1,
punished with death.],
llustrations,
"(a) A shoots at Z with intention to kill him, under such circumstances that, if",
death ensued. A would be guilty of murder. A is liable to punishment under,
this section.,
"(b) A, with the intention of causing the death of a child of tender years,",
exposes it in a desert place. A has committed the offence defined by this,
"section, though the death of the child does not ensue.",
"(c) A, intending to murder Z, buys a gun and loads it. A has not yet committed",
the offence. A fires the gun at Z. He has committed the offence defined in this,
"section, and if by such firing he wounds Z, he is liable to the punishment",
provided by the latter part of [the first paragraph of] this section.,
3,
"(d) A, intending to murder Z by poison, purchases poison and mixes the same",
with food which remains in A’s keeping; A has not yet committed the offence,
defined in this section. A places the food on Z’s table or delivers it to Z’s,
servant to place it on Z’s table. A has committed the offence defined in this,
section.,
CLASSIFICATION OF OFFENCE,
Para I,
Punishment—Imprisonment for 10 years and fine—Cognizable—Non-bailable,
—Triable by Court of Session—Non-compoundable.,
Para II,
"Punishment—Imprisonment for life, or imprisonment for 10 years and fine—",
Cognizable—Non-bailable—Triable by Court of Session—Non-compoundable.,
Para III,
"Punishment—Death, or imprisonment for 10 years and fine—Cognizable—",
Non-bailable—Triable by Court of Session—Non-compoundable.,
—-,
"1. Subs. by Act 26 of 1955, sec. 117 and Sch., for “transportation for life” (w.e.f.",
1-1-1956).,
"2. Ins. by Act 27 of 1870, sec. 11.",
"3. Ins. by Act 12 of 1891, sec. 2 and Sch. II.",
Section 308. Attempt to commit culpable homicide,
Whoever does any Act with such intention or knowledge and under such,
"circumstances that, if he by that Act caused death, he would be guilty of",
"culpable homicide not amount to murder, shall be punished with",
imprisonment of either description for a term which may extend to three,
"years, or with fine, or with both, and if hurt is caused to any person by such",
"Act, shall be punished with imprisonment of either description for a term",
"which may extend to seven years, or with fine, or with both.",
Illustration,
"A, on grave and sudden provocation, fires a pistol at Z, under such",
circumstances that if he thereby caused death he would be guilty of culpable,
homicide not amounting to murder. A has committed the offence defined in,
this section.,
CLASSIFICATION OF OFFENCE,
Para I,
"Punishment—Imprisonment for 3 years, or fine, or both—Cognizable—Non-",
bailable—Triable by Court of Session—Non-compoundable.,
Para II,
"Punishment—Imprisonment for 7 years, or fine, or both Cognizable—Non-",
bailable—Triable by Court of Session—Non-compoundable.,
Section 309. Attempt to commit suicide,
Whoever attempts to commit suicide and does any act towards the,
"commission of such offence, shall be punished with simple imprisonment for",
"term which may extend to one year [ or with fine, or with both].",
1,
CLASSIFICATION OF OFFENCE,
"Punishment—Simple imprisonment for 1 year, or fine or both—Cognizable—",
Bailable—Triable by any Magistrate—Non-compoundable.,
"1. Subs. by Act 8 of 1882, sec. 7, for “and shall also be liable to fine”.",
Section 310. Thug,
"Whoever, at any time after the passing of this act, shall have been habitually",
associated with any other or others for the purpose of committing robbery or,
"child-stealing by means of or accompanied with murder, is a thug.",
Section 311. Punishment,
"Whoever is a thug, shall be punished with [imprisonment for life] and shall",
1,
also be liable to fine.,
CLASSIFICATION OF OFFENCE,
Punishment—Imprisonment for life and fine—Cognizable—Non-bailable—,
Triable by Court of Session—Non-compoundable.,
–,
"1. Subs. by Act 26 of 1955, sec. 117 and Sch., for “transportation for life” (w.e.f.",
1-1-1956).,
Section 312. Causing miscarriage,
"Whoever voluntarily causes a woman with child to miscarry, shall, if such",
miscarriage be not caused in good faith for the purpose of saving the life of the,
"woman, be punished with imprisonment of either description for a term which",
"may extend to three years, or with fine, or with both, and, if the woman be",
"quick with child, shall be punished with imprisonment of either description",
"for a term which may extend to seven years, and shall also be liable to fine.",
Explanation,
"A woman who causes herself to miscarry, is within the meaning of this section.",
CLASSIFICATION OF OFFENCE,
Para I,
"Punishment—Imprisonment for 3 years, or fine or both—Non-cognizable—",
Non-bailable—Triable by Magistrate of the first class—Non-compoundable.,
Para II,
Punishment—Imprisonment for 7 years and fine—Non-cognizable—Bailable—,
Triable by Magistrate of the first class—Non-compoundable.,
Section 313. Causing miscarriage without woman’s consent,
Whoever commits the offence defined in the last preceding section without the,
"consent of the woman, whether the woman is quick with child or not, shall be",
punished with [ imprisonment for life] or with imprisonment of either,
1,
"description for a term which may extend to ten years, and shall also be liable",
to fine.,
CLASSIFICATION OF OFFENCE,
Para I,
"Punishment—Imprisonment for life, or imprisonment for 10 years and fine—",
Cognizable—Non-bailable—Triable by Court of Session—Non-compoundable.,
—-,
"1. Subs. by Act 26 of 1955, sec. 117 and Sch., for “transportation for life” (w.e.f.",
1-1-1956).,
Section 314. Death caused by act done with intent to cause miscarriage-,
"Whoever, with intent to cause the miscarriage of woman with child, does any",
"act which causes the death of such woman, shall be punished with",
"imprisonment of either description for a term may extend to ten years, and",
shall also be liable to fine.,
If act done without woman’s consent.— And if the act is done without,
"the consent of the woman, shall be punished either with [imprisonment for",
1,
life] or with the punishment above mentioned,
Explanation,
It is not essential to this offence that the offender should know that the act is,
likely to cause death.,
CLASSIFICATION OF OFFENCE,
Para I,
Punishment—Imprisonment for 10 years and fine—Cognizable—Non-bailable,
—Triable by Court of Session—Non-compoundable.,
Para II,
"Punishment—Imprisonment for life, or as above—Cognizable—Non-bailable—",
Triable by Court of Session—Non-compoundable.,
—-,
"1. Subs. by Act 26 of 1955, sec. 117 and Sch., for “transportation for life” (w.e.f.",
1-1-1956).,
Section 315. Act done with intent to prevent child being born alive or to cause it to die,
after birth,
Whoever before the birth of any child does any act with the intention of,
thereby preventing that child from being born alive or causing it to die after its,
"birth, and does by such act prevent that child from being born alive, or causes",
"it to die after its birth, shall, if such act be not caused in good faith for the",
"purpose of saving the life of the mother, be punished with imprisonment of",
"either description for a term which may extend to ten years, or with fine, or",
with both.,
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 10 years, or fine, or both—Cognizable—Non-",
bailable—Triable by Court of Session—Non-compoundable.,
Section 316. Causing death of quick unborn child by act amounting to culpable homicide,
"Whoever does any act under such circumstances, that if he thereby caused",
"death he would be guilty of culpable homicide, and does by such act cause the",
"death of a quick unborn child, shall be punished with imprisonment of either",
"description for a term which may extend to ten years, and shall also be liable",
to fine.,
Illustration,
"A, knowing that he is likely to cause the death of a pregnant woman, does an",
"act which, if it caused the death of the woman, would amount to culpable",
"homicide. The woman is injured, but does not die, but the death of an unborn",
quick child with which she is pregnant is thereby caused. A is guilty of the,
offence defined in this section.,
CLASSIFICATION OF OFFENCE,
Punishment—Imprisonment for 10 years and fine—Cognizable—Non-bailable,
—Triable by Court of Session—Non-compoundable.,
"Section 317. Exposure and abandonment of child under twelve years, by parent or person",
having care of it.,
"Whoever being the father or mother of a child under the age of twelve years,",
"having the care of such child, shall expose or leave such child in any place with",
"the intention of wholly abandoning such child, shall be punished with",
imprisonment of either description for a term which may extend to seven,
"years; or with fine, or with both.",
Explanation,
This section is not intended to prevent the trial of the offender for murder or,
"culpable homicide, as the case may be, if the child dies in consequence of the",
exposure.,
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 7 years, or fine, or both—Cognizable—",
Bailable—Triable by Magistrate of the first class—Non-compoundable.,
Section 318. Concealment of birth by secret disposal of dead body.,
"Whoever, by secretly burying or otherwise disposing of the death body of a",
"child whether such child die before or after or during its birth, intentionally",
"conceals or endeavours to conceal the birth of such child, shall be punished",
with imprisonment of either description for a term which may extend to two,
"years, or with fine, or with both.",
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 2 years, or fine, or both—Cognizable—",
Bailable—Triable by Magistrate of the first class—Non-compoundable.,
Section 319. Hurt.,
"Whoever causes bodily pain, disease or infirmity to any person is said to cause",
hurt.,
Section 320. Grievous hurt.,
The following kinds of hurt only are designated as “grievous”:,
First.— Emasculation.,
Secondly.—Permanent privation of the sight of either eye.,
"Thirdly.— Permanent privation of the hearing of either ear,",
Fourthly.—Privation of any member or joint.,
Fifthly.— Destruction or permanent impairing of the powers of any member or,
joint.,
Sixthly.— Permanent disfiguration of the head or face.,
Seventhly.—Fracture or dislocation of a bone or tooth.,
Eighthly.—Any hurt which endangers life or which causes the sufferer to be,
"during the space of twenty days in severe bodily pain, or unable to follow his",
ordinary pursuits.,
Section 321. Voluntarily causing hurt.,
Whoever does any act with the intention of thereby causing hurt to any,
"person, or with the knowledge that he is likely thereby to cause hurt to any",
"person, and does thereby cause hurt to any person, is said “voluntarily to",
cause hurt”.,
Section 322. Voluntarily causing grievous hurt,
"Whoever voluntarily causes hurt, if the hurt which the intends to cause or",
"knows himself to be likely to cause is grievous hurt, and if the hurt which he",
"causes is grievous hurt, is said “voluntarily to cause grievous hurt”.",
Explanation,
A person is not said voluntarily to cause grievous hurt except when he both,
causes grievous hurt and intends or knows himself to be likely to cause,
"grievous hurt. But he is said voluntarily to cause grievous hurt, if intending or",
knowing himself to be likely to cause grievous hurt of one kind; he actually,
causes grievous hurt of another kind.,
Illustration,
"A, intending or knowing himself to be likely permanently to disfigure Z’s face,",
"gives Z a blow which does not permanently disfigure Z’s face, but which cause",
Z to suffer severe bodily pain for the space of twenty days. A has voluntarily,
caused grievous hurt.,
Section 323. Punishment for voluntarily causing hurt,
"Whoever, except in the case provided for by section 334,voluntarily causes",
"hurt, shall be punished with imprisonment of either description for a term",
"which may extend to one year, or with fine which may extend to one thousand",
"rupees, or with both.",
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 1 year, or fine of 1,000 rupees, or both—Non-",
cognizable—Bailable—Triable by any Magistrate—Compounded by the person,
to whom the hurt is caused.,
Section 324. Voluntarily causing hurt by dangerous weapons or means,
"Whoever, except in the case provided for by section 334, voluntarily causes",
"hurt by means of any instrument for shooting, stabbing or cutting, or any",
"instrument which, used as weapon of offence, is likely to cause death, or by",
"means of fire or any heated substance, or by means of any poison or any",
"corrosive substance, or by means of any explosive substance or by means of",
"any substance which it is deleterious to the human body to inhale, to swallow,",
"or to receive into the blood, or by means of any animal, shall be punished with",
imprisonment of either description for a term which may extend to three,
"years, or with fine, or with both.",
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 3 years, or fine, or both—Cognizable—Non-",
Bailable—Triable by any Magistrate—Compoundable by the person to whom,
hurt is caused with the permission of the court.,
Section 325. Punishment for voluntarily causing grievous hurt,
"Whoever, except in the case provided for by section 335, voluntarily causes",
"grievous hurt, shall be punished with imprisonment of either description for a",
"term which may extend to seven years, and shall also be liable to fine.",
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 7 years, and fine—Cognizable—Bailable—",
Triable by any Magistrate—Compoundable by the person to whom hurt is,
caused with the permission of the court.,
Section 326. Voluntarily causing grievous hurt by dangerous weapons or means,
"Whoever, except in the case provided for by section 335, voluntarily causes",
"grievous hurt by means of any instrument for shooting, stabbing or cutting, or",
"any instrument which, used as a weapon of offence, is likely to cause death, or",
"by means of fire or any heated substance, or by means of any poison or any",
"corrosive substance, or by means of any explosive substance, or by means of",
"any substance which it is deleterious to the human body inhale, to swallow, or",
"to receive into the blood, or by means of any animal, shall be punished",
"with [imprisonment for life], or with imprisonment of either description for a",
1,
"term which may extend to ten years, and shall also be liable to fine.",
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for life, or imprisonment for 10 years and fine—",
Cognizable—Non-bailable—Triable by Magistrate of the first class—Non-,
compoundable.,
–,
"1. Subs. by Act 26 of 1955, sec. 117 and Sch., for “transportation for life” (w.e.f.",
1-1-1956).,
"1[326A. Whoever causes permanent or partial damage or deformity to, or",
"burns or maims or disfigures or disables, any part or parts of the body of a",
person or causes grievous hurt by throwing acid on or by administering acid to,
"that person, or by using any other means with the intention of causing or with",
"the knowledge that he is likely to cause such injury or hurt, shall be punished",
with imprisonment of either description for a term which shall not be less than,
"ten years but which may extend to imprisonment for life, and with fine:",
Provided that such fine shall be just and reasonable to meet the medical,
expenses of the treatment of the victim:,
Provided further that any fine imposed under this section shall be paid to the,
victim.,
"1. Whoever throws or attempts to throw acid on any person or attempts to administer acid to any person, or",
"attempts to use any other means, with the intention of causing permanent or partial damage or deformity or",
"burns or maiming or disfigurement or disability or grievous hurt to that person, shall be punished with",
imprisonment of either description for a term which shall not be less than five years but which may extend to,
"seven years, and shall also be liable to fine.",
"1n iolnpxEtaa .—For the purposes of section 326A and this section, “acid”",
includes any substance which has acidic or corrosive character or burning,
"nature, that is capable of causing bodily injury leading to scars or",
disfigurement or temporary or permanent disability.,
"2n iolnpxEtaa .— For the purposes of section 326A and this section,",
permanent or partial damage or deformity shall not be required to be,
irreversible.],
"1 Inserted by Section 5 of ‘The Criminal Law (Amendment) Act, 2013′",
"Section 327. Voluntarily causing hurt to extort property, or to constrain to an illegal act",
"Whoever voluntarily causes hurt, for the purpose of extorting from the",
"sufferer, or from any person interested in the sufferer, any property or",
"valuable security, or of constraining the sufferer or any person interested in",
such sufferer to do anything which is illegal or which may facilitate the,
"commission of an offence, shall be punished with imprisonment of either",
"description for a term which may extend to ten years, and shall also be liable",
to fine.,
CLASSIFICATION OF OFFENCE,
Punishment—Imprisonment for 10 years and fine—Cognizable—Non-bailable,
—Triable by Magistrate of the first class—Non-compoundable.,
"Section 328. Causing hurt by means of poison, etc., with intent to commit an offence",
Whoever administers to or causes to be taken by any person any poison or any,
"stupefying, intoxicating or unwholesome drug, or other thing with intent to",
"cause hurt such person, or with intent to commit or to facilitate the",
commission of an offence or knowing in to be likely that he will thereby cause,
"hurt, shall be punished with imprisonment of either description for a term",
"which may extend to ten years, and shall also be liable to fine.",
CLASSIFICATION OF OFFENCE,
Punishment—Imprisonment for 10 years and fine—Cognizable—Non-bailable,
—Triable by Court of Session—Non-compoundable.,
"Section 329. Voluntarily causing grievous hurt to extort property, or to constrain to an",
illegal act,
Whoever voluntarily causes grievous hurt for the purpose of extorting from,
the sufferer or from any person interested in the sufferer any property or,
"valuable security, or of constraining the sufferer or any person interested in",
such sufferer to do anything that is illegal or which may facilitate the,
"commission of an offence, shall be punished with [imprisonment for life], or",
1,
"imprisonment of either description for a term which may extend to ten years,",
and shall also be liable to fine.,
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for life, or imprisonment for 10 years and fine—",
Cognizable—Non-bailable—Triable by Court of Session—Non-compoundable.,
"1. Subs. by Act 26 of 1955, sec. 117 and Sch., for “transportation for life” (w.e.f.",
1-1-1956).,
"Section 330. Voluntarily causing hurt to extort confession, or to compel restoration of",
property,
Whoever voluntarily causes hurt for the purpose of extorting from the sufferer,
"or from any person interested in the sufferer, any confession or any",
"information which may lead to the detection of an offence or misconduct, or",
for the purpose of constraining the sufferer or any person interested in the,
sufferer to restore or to cause the restoration of any property or valuable,
"security or to satisfy any claim or valuable security, shall be punished with",
imprisonment of either description for a term which may extend to seven,
"years, shall also be liable to fine.",
Illustrations,
"(a) A, a police-officer, tortures Z in order to induce Z to confess that he",
committed a crime. A guilty of an offence under this section.,
"(b) A, a police officer, tortures B to induce him to point out where certain",
stolen property is deposited. A is guilty of an offence under this section.,
"(c) A, a revenue officer, tortures Z in order to compel him to pay certain",
arrears of revenue due from Z. A is guilty of an offence under this section.,
"(d) A, a zamindar, tortures a raiyat in order to compel him to pay his rent. A is",
guilty of an offence under this section.,
CLASSIFICATION OF OFFENCE,
Punishment—Imprisonment for 7 years and fine—Cognizable—Bailable—,
Triable by Magistrate of the first class—Non-compoundable.,
"Section 331. Voluntarily causing grievous hurt to extort confession, or to compel",
restoration of property,
Whoever voluntarily causes grievous hurt for the purpose of extorting from,
the sufferer or from any person interested in the sufferer any confession or,
"any information which may lead to the detection of an offence or misconduct,",
or for the purpose of constraining the sufferer or any person interested in the,
sufferer to restore or to cause the restoration of any property or valuable,
"security, or to satisfy any claim or demand or to give information which may",
"lead to the restoration of any property or valuable security, shall be punished",
with imprisonment of either description for a term which may extend to ten,
"years, and shall also be liable to fine.",
CLASSIFICATION OF OFFENCE,
Punishment—Imprisonment for 10 years and fine—Cognizable—Non-bailable,
—Triable by Court of Session—Non-compoundable.,
Section 332. Voluntarily causing hurt to deter public servant from his duty,
Whoever voluntarily causes hurt to any person being a public servant in the,
"discharge of his duty as such public servant, or with intent to prevent or deter",
that person or any other public servant from discharging his duty as such,
"public servant, or in consequence of anything done or attempted to be done by",
"that person in the lawful discharge of his duty as such public servant, shall be",
punished with imprisonment of either description for a term which may,
"extend to three years, or with fine, or with both.",
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 3 years, or fine, or both—Cognizable—Non-",
Bailable—Triable by Magistrate of the first class—Non-compoundable.,
Section 333. Voluntarily causing grievous hurt to deter public servant from his duty,
Whoever voluntarily causes grievous hurt to any person being a public servant,
"in the discharge of his duty as such public servant, or with intent to prevent or",
deter that person or any other public servant from discharging his duty as,
"such public servant, or in consequence of anything done or attempted to be",
"done by that person in the lawful discharge of his duty as such public servant,",
shall be punished with imprisonment of either description for a term which,
"may extend to ten years, and shall also be liable to fine.",
Section 334. Voluntarily causing hurt on provocation,
"Whoever voluntarily causes hurt on grave and sudden provocation, if he",
neither intends nor knows himself to be likely to cause hurt to any person,
"other than the person who gave the provocation, shall be punished with",
imprisonment of either description for a term which may extend to one,
"month, or with fine which may extend to five hundred rupees, or with both.",
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 1 month, or fine of 500 rupees, or both—Non-",
cognizable—Bailable—Triable by any Magistrate—Compoundable by the,
person to whom the hurt is caused.,
Section 335. Voluntarily causing grievous hurt on provocation,
"Whoever [voluntarily] causes grievous hurt on grave and sudden provocation,",
1,
if he neither intends nor knows himself to be likely to cause grievous hurt to,
"any person other than the person who gave the provocation, shall be punished",
with imprisonment of either description for a term which may extend to four,
"years or with fine which may extend to two thousand rupees, or with both",
Explanation,
"The last two sections are subject to the same provisos as Explanation 1, section",
300.,
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 4 years, or fine of 2000 rupees, or both—",
Cognizable-Bailable—Triable by Magistrate of the first class—Compoundable,
by the person to whom hurt is caused with the permission of the court.,
–,
"1. Ins. by Act 8 of 1882, sec. 8.",
Section 336. Act endangering life or personal safety of others,
Whoever does any act so rashly or negligently as to endanger human life or the,
"personal safety of others, shall be punished with imprisonment of either",
"description for term which may extend to three months, or with fine which",
"may extend to two hundred and fifty rupees, or with both.",
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 3 months, or fine of 250 rupees, or both—",
Cognizable—Bailable—Triable by any Magistrate—Non-compoundable.,
Section 337. Causing hurt by act endangering life or personal safety of others,
Whoever causes hurt to any person by doing any act so rashly or negligently as,
"to endanger human life, or the personal safety of others, shall be punished",
with imprisonment of either description for term which may extend to six,
"months, or with fine which may extend to five hundred rupees, or with both.",
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 6 months, or fine of 500 rupees, or both—",
Cognizable—Bailable—Triable by any Magistrate—Compoundable by the,
person to whom hurt is caused with the permission of the court.,
Section 338. Causing grievous hurt by act endangering life or personal safety of others,
Whoever causes grievous hurt to any person by doing any act so rashly or,
"negligently as to endanger human life, or the personal safety of others, shall be",
punished with imprisonment of either description for a term which may,
"extend to two years, or with fine which may extend to one thousand rupees, or",
with both.,
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 2 years, or fine of 1,000 rupees, or both—",
Cognizable—Bailable—Triable by any Magistrate—Compoundable by the,
person to whom hurt is caused with the permission of the court.,
Section 339. Wrongful restraint,
Whoever voluntarily obstructs any person so as to prevent that person from,
"proceeding in any direction in which that person has right to proceed, is said",
wrongfully to restrain that person.,
Exception: – The obstruction of a private way over land or water which a,
"person in good faith believes himself to have lawful right to obstruct, is not an",
offence within the meaning of this section.,
Illustration,
A obstructs a path along which Z has a right to pass. A not believing in good,
faith that he has a right to stop the path. Z is thereby prevented from passing.,
A wrongfully restrains Z.,
Section 340. Wrongful confinement.,
Whoever wrongfully restrains any person in such a manner as to prevent that,
"person from proceedings beyond certain circumscribing limits, is said",
“wrongfully to confine” that person.,
Illustrations,
"(a) A causes Z to go within a walled space, and locks Z in. A is thus prevented",
from proceeding in any direction beyond the circumscribing line of wall. A,
wrongfully confines Z.,
"(b) A places men with firearms at the outlets of a building, and tells Z that they",
will fire at Z if Z attempts to leave the building. A wrongfully confines Z.,
Section 341. Punishment for wrongful restraint,
Whoever wrongfully restrains any person shall be punished with simple,
"imprisonment for a term, which may extend to one month, or with fine which",
"may extend to five hundred rupees, or with both.",
CLASSIFICATION OF OFFENCE,
"Punishment—Simple imprisonment for 1 month, or fine of 500 rupees, or both",
—Cognizable—Bailable—Triable by any Magistrate—Compoundable by the,
person restrained or confined.,
Section 342. Punishment for wrongful Confinement,
Whoever wrongfully confines any person shall be punished with,
"imprisonment of either description for a term which may extend to one year,",
"or with fine which may extend to one thousand rupees, or with both.",
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 1 year, or fine of 1,000 rupees, or both—",
Cognizable—Bailable—Triable by any Magistrate—Compoundable by the,
person restrained or confined.,
Section 343. Wrongful confinement for three or more days,
"Whoever wrongfully confines any person for three days, or more, shall be",
punished with imprisonment of either description for a term which may,
"extend to two years, or with fine, or with both.",
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 2 years, or fine, or both—Cognizable—",
Bailable—Triable by any Magistrate—Compoundable by the person confined,
with the permission of the court.,
Section 344. Wrongful confinement for ten or more days,
"Whoever wrongfully confines any person for ten days, or more, shall be",
punished with imprisonment of either description for a term which any extend,
"to three years, and shall also be liable to fine.",
CLASSIFICATION OF OFFENCE,
Punishment—Imprisonment for 3 years and fine—Cognizable—Bailable—,
Triable by any Magistrate—Compoundable by the person confined with the,
permission of court.,
Section 345. Wrongful confinement of person for whose liberation writ has been issued,
"Whoever keeps any person in wrongful confinement, knowing that a writ for",
"the liberation of that person has been duly issued, shall be punished with",
imprisonment of either description for a term which may extend to two years,
in addition to any term of imprisonment to which he may be liable under any,
other section of this chapter.,
CLASSIFICATION OF OFFENCE,
Punishment—Imprisonment for 2 years in addition to imprisonment under,
any other section—Cognizable—Bailable—Triable by Magistrate of the first,
class—Non-compoundable.,
Section 346. Wrongful confinement in secret,
Whoever wrongfully confines any person in such manner as to indicate an,
intention that the confinement of such person may not be known to any,
"person interested in the person so confined, or to any public servant, or that",
the place of such confinement may not be known to or discovered by any such,
"person or public servant as hereinbefore mentioned, shall be punished with",
imprisonment of either description for a term which may extend to two years,
in addition to any other punishment to which he may be liable for such,
wrongful confinement.,
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 2 years, in addition to imprisonment under",
any other section—Cognizable—Bailable—Triable by Magistrate of the first,
class—Compoundable by the person confined with the permission of the court.,
"Section 347. Wrongful confinement to extort property, or constrain to illegal act",
Whoever wrongfully confines any person for the purpose of extorting from the,
"person confined, or from any person interested in the person confined, any",
property or valuable security or of constraining the person confined or any,
person interested in such person to do anything illegal or to give any,
"information which may facilitate the commission of an offence, shall be",
punished with imprisonment of either description for a term which may,
"extend to three years, and shall also be liable to fine.",
CLASSIFICATION OF OFFENCE,
Punishment—Imprisonment for 3 years and fine—Cognizable—Bailable—,
Triable by any Magistrate—Non-compoundable.,
"Section 348. Wrongful confinement to extort confession, or compel restoration of",
property,
Whoever wrongfully confines any person for the purpose of extorting from the,
person confined or any person interested in the person confined any,
confession or any information which may led to the detection of an offence or,
"misconduct, or for the purpose of constraining the person confined or any",
person interested in the person confined to restore or to cause the restoration,
"of any property or valuable security or to satisfy any claim or demand, or to",
give information which may lead to the restoration of any property or valuable,
"security, shall be punished with imprisonment of either description for a term",
"which may extend to three years, and shall also be liable to fine.",
CLASSIFICATION OF OFFENCE,
Punishment—Imprisonment for 3 years and fine—Cognizable—Bailable—,
Triable by any Magistrate—Non-compoundable.,
Section 349. Force,
"A person is said to use force to another if he causes motion, change of motion,",
"or cessation of motion to that other, or if he causes to any substance such",
"motion, or change of motion, or cessation of motion as brings that substance",
"into contact with any part of that other’s body, or with anything which that",
"other is wearing or carrying, or with anything so situated that such contact",
affects that other’s sense of feeling: Provided that the person causing the,
"motion, or change of motion, or cessation of motion, causes that motion,",
"change of motion, or cessation of motion in one of the three ways hereinafter",
described.,
First.— By his own bodily power.,
Secondly.—By disposing any substance in such a manner that the motion or,
"change or cessation of motion takes place without any further act on his part,",
or on the part of any other person.,
"Thirdly.— By inducing any animal to move, to change its motion, or to cease to",
move.,
Section 350. Criminal force,
"Whoever intentionally uses force to any person, without that person’s consent,",
"in order to the committing of any offence, or intending by the use of such force",
"to cause, or knowing it to be likely that by the use of such force he will cause",
"injury, fear or annoyance to the person to whom the force is used, is said to",
use criminal force to that other.,
Illustrations,
"(a) Z is sitting in a moored boat on a river. A unfastens the moorings, and thus",
intentionally causes the boat to drift down the stream. Here A intentionally,
"causes motion to Z, and he does this by disposing substances in such a manner",
"that the motion is produced without any other act on any person’s part, A has",
therefore intentionally used force to Z; and if he has done so without Z’s,
"consent, in order to the committing of any offence, or intending or knowing in",
"to be likely that this use of force will cause injury, fear or annoyance to Z, A",
has used criminal force to Z.,
"(b) Z is reading in a chariot. A lashes Z’s horses, and thereby causes them to",
quicken there pace. Here Z has caused change of motion to Z by inducing the,
animals to change their motion. A has therefore used force to Z; and if A has,
"done this without Z’s consent, intending or knowing it to be likely that he may",
"thereby injure, frighten or annoy Z, A has used criminal force to Z.",
"(c) Z is riding in a palanquin. A, intending to rob Z, seizes the pole and stops",
the palanquin. Here A has caused therefore used force to Z; and as A has acted,
"thus intentionally, without Z’s consent, in order to the commission of an",
offence. A has used criminal force to Z.,
(d) A intentionally pushes against Z in the street. Here A has by his own bodily,
power moved his own person so as to bring it into contact with Z. He has,
therefore intentionally used force to Z; and if he has done so without Z’s,
"consent, intending or knowing it to be likely that he may thereby injure,",
"frighten or annoy Z, he has used criminal force to Z.",
(e) A throws a stone intending or knowing it to be likely that the stone will be,
"thus brought in to contact with Z, or with Z’s clothes, or with something",
"carried by Z, or that it will strike water and dash up the water against Z’s",
"clothes or something carried by Z. Here, if the throwing of the stone produce",
"the effect of causing any substance to come into contact with Z, or Z’s clothes.",
"A has used force to Z; and if he did so without Z’s consent, intending thereby",
"to injure, frighten or annoy Z, he has criminal force by Z.",
(f) A intentionally pulls up a woman’s veil. Here A intentionally uses force to,
"her, and if he does so without her consent intending or knowing it to be likely",
"that he may thereby injure, frighten or annoy her, he has used criminal force",
to her.,
"(g) Z is bathing, A pours into the bath water which he knows to be boiling.",
Here A intentionally by his own bodily power causes such motion in the,
"boiling water as brings that water into contact with Z, or with that water so",
situated that such contact must affect Z’s sense of feeling; A has therefore,
intentionally used force to Z; and he has done this without Z’s consent,
"intending or knowing it to be likely that he may thereby cause injury, fear, or",
"annoyance to Z, A has used criminal force.",
"(h) A incites a dog to spring upon Z, without Z; s consent. Here, if A intends to",
"cause injury, fear or annoyance to Z, he uses criminal force to Z.",
Section 351. Assault,
"Whoever makes any gesture, or any preparation intending or knowing it to be",
likely that such gesture or preparation will cause any person present to,
apprehend that he who makes that gesture or preparation is about to use,
"criminal force to that person, is said to commit as assault.",
Explanation,
Mere words do not amount to an assault. But the words which a person uses,
may give to his gestures or preparation such a meaning as may make those,
gestures or preparations amount to an assault.,
Illustrations,
"(a) A shakes his fist at Z, intending or knowing it to be likely that he may",
"thereby cause Z to believe that A is about to strike Z, A has committed an",
assault.,
"(b) A begins to unloose the muzzle of a ferocious dog, intending or knowing it",
to be likely that he may thereby cause Z to believe that he is about to cause the,
dog to attack Z. A has committed an assault upon Z.,
"(c) A takes up a stick, saying to Z, “I will give you a beating” Here, though the",
"words used by A could in no case amount to an assault, and though the mere",
"gesture, unaccompanied by any other circumstances, might not amount to an",
"assault, the gesture explained by the words may amount to an assault.",
Section 352. Punishment for assault or criminal force otherwise than on grave,
provocation,
Whoever assaults or uses criminal force to any person otherwise than on grave,
"and sudden provocation given by that person, shall be punished with",
imprisonment of either description for a term which may extend to three,
"months, or with fine which may extend to five hundred rupees, or with both.",
Explanation,
Grave and sudden provocation will not mitigate the punishment for an offence,
under this section. If the provocation is sought or voluntarily provoked by the,
"offender as an excuse for the offence, or",
"if the provocation is given by anything done in obedience to the law, or by a",
"public servant, in the lawful exercise of the powers of such public servant, or",
if the provocation is given by anything done in the lawful exercise of the right,
of private defence.,
Whether the provocation was grave and sudden enough to mitigate the,
"offence, is a question of fact.",
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 3 months, or fine of 500 rupees, or both—",
Non-Cognizable—Bailable—Triable by any Magistrate—Compoundable by the,
person assaulted or to whom criminal force is used.,
Section 353. Assault or criminal force to deter public servant from discharge of his duty,
Whoever assaults or uses criminal force to any person being a public servant,
"in the execution of his duty as such public servant, or with intent to prevent or",
"deter that person from discharging his duty as such public servant, or in",
consequence of anything done or attempted to be done by such person in the,
"lawful discharge of his duty as such public servant, shall be punished with",
"imprisonment of either description for a term which may extend to two years,",
"or with fine, or with both.",
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 2 years, or fine, or both—Cognizable—Non-",
Bailable—Triable by any Magistrate—Non-compoundable.,
Section 354. Assault or criminal force to woman with intent to outrage her modesty,
"Whoever assaults or uses criminal force to any woman, intending to outrage or",
"knowing it to be likely that he will thereby outrage her modesty, 1[shall be",
punished with imprisonment of either description for a term which shall not,
"be less than one year but which may extend to five years, and shall also be",
liable to fine.],
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 2 years, or fine, or both—Cognizable—",
Bailable—Triable by any Magistrate—Non-compoundable.,
State Amendments,
Andhra Pradesh,
"For section 354, the following section shall be substituted, namely",
354. Assault or criminal force to woman with intent to outrage her modesty.—,
Whoever assaults or uses criminal force to any woman intending to outrage or,
"knowing it to be likely that he will thereby outrage her modesty, shall be",
punished with imprisonment of either description for a term which shall not,
be less than five years but which may extend to seven years and shall also be,
liable to fine:,
"Provided that the court may, for adequate and special reasons to be mentioned",
"in the judgment, impose a sentence of imprisonment of either description for",
a term which may be less than five years but which shall not be less than two,
years.,
[Vide Andhra Pradesh Act 6 of 1991].,
Madhya Pradesh,
"After section 354, the following new section shall be inserted, namely",
354A. Assault or use Criminal force to woman with intent to disrobe her.—,
Whoever assaults or uses criminal force to any woman or abets or conspires to,
assault or uses such criminal force to any woman intending to outrage or,
"knowing it to be likely that by such assault, he will thereby outrage or causes",
to be outraged the modesty of the woman by disrobing or compel her to be,
"naked on any public place, shall be punished with imprisonment of either",
description for a term which shall not be less than one year but which may,
extend to ten years and shall also be liable to fine.”.,
"[Vide Madhya Pradesh Act 14 of 2004, sec. 3 (w.e.f. 2-12-2004)].",
Orissa,
"In the First Schedule to the Code of Criminal Procedure, 1973 in the entry",
under column 5 relating to section 354 of the Indian Penal Code 1860 for the,
word ‘bailable’ the word ‘non-bailable’ shall be substituted.,
"[Vide Orissa Act 6 of 1995, sec. 3 (w.e.f. 10-3-1995)].",
"1. Inserted by Section 7 of ‘The Criminal Law (Amendment) Act, 2013′",
"Section 355. Assault or criminal force with intent to dishonour person, otherwise than on",
grave provocation,
"Whoever assaults or uses criminal force to any person, intending thereby to",
"dishonour that person, otherwise than on grave and sudden provocation given",
"by that person, shall be punished with imprisonment for a term which may",
"extend to two years, or with fine, or with both.",
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 2 years, or fine, or both—Non-Cognizable—",
Bailable—Triable by any Magistrate—Compounded by the person assaulted or,
to whom criminal force is used.,
State Amendment,
Andhra Pradesh,
"Offence under section 355 is non-cognizable, bailable and triable by any",
Magistrate.,
"[Vide Andhra Pradesh Act 3 of 1992, sec. 2 (w.e.f. 15-2-1992)].",
Section 356. Assault or criminal force in attempt to commit theft of property carried by a,
person,
"Whoever assault or uses criminal force to any person, in attempting to commit",
"theft on any property which that person is then wearing or carrying, shall be",
punished with imprisonment of either description for a term which may,
"extend to two years, with fine, or with both.",
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 2 years, or fine, or both—Cognizable—",
Bailable—Triable by any Magistrate—Non-compoundable.,
Section 357. Assault or criminal force in attempt wrongfully to confine a person,
"Whoever assaults or uses criminal force to any person, in attempting",
"wrongfully to confine that person, shall be punished with imprisonment of",
"either description for a term which may extend to one year, or with fine which",
"may extend to one thousand rupees, or with both.",
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 1 year, or fine of 1,000 rupees, or both—",
Cognizable—Bailable—Triable by any Magistrate—Compoundable by the,
person assaulted or to whom the force was used with the permission of the,
court.,
Section 358. Assault or criminal force on grave provocation,
Whoever assaults or uses criminal force to any person on grave and sudden,
"provocation given by that person, shall be punished with simple imprisonment",
"for a term which may extend to one month, or with fine which may extend to",
"two hundred rupees, or with both.",
Explanation,
The last section is subject to the same Explanation as section 352.,
CLASSIFICATION OF OFFENCE,
"Punishment—Simple imprisonment for one month, or fine of 200 rupees, or",
both—Non-cognizable—Bailable—Triable by any Magistrate—Compoundable,
by the person assaulted or to whom criminal force is used.,
Section 359. Kidnapping,
"Kidnapping is of two kinds: kidnapping from [India], and kidnapping from",
1,
lawful guardianship.,
—–,
"1. The words “British India” have successively been subs. by the A.O. 1948, the",
"A.O. 1950 and Act 3 of 1951, sec. 3 and Sch. to read as above.",
Section 360. Kidnapping from India,
Whoever conveys any person beyond the limits of [India] without the consent,
1,
"of that person, or of some person legally authorised to consent on behalf of",
"that person, is said to kidnap that person from [India].",
1,
—-,
"1. The words “British India” have successively been subs. by the A.O. 1948, the",
"A.O. 1950 and Act 3 of 1951, sec. 3 and Sch. to read as above.",
Section 361. Kidnapping from lawful guardianship,
"Whoever takes or entices any minor under [sixteen] years of age if a male, or",
1,
"under [eighteen] years of age if a female, or any person of unsound mind, out",
2,
of the keeping of the lawful guardian of such minor or person of unsound,
"mind, without the consent of such guardian, is said to kidnap such minor or",
person from lawful guardianship.,
Explanation,
The words “lawful guardian” in this section include any person lawfully,
entrusted with the care or custody of such minor or other person.,
Exception,
This section does not extend to the act of any person who in good faith,
"believes himself to be the father of an illegitimate child, or who in good faith",
"believes himself to be entitled to lawful custody of such child, unless such act",
is committed for an immoral or unlawful purpose.,
STATE AMENDMENT,
Manipur,
In section 361 for the words ‘eighteen’ substitute the word ‘fifteen’.,
"[Vide Manipur Act 30 of 1950, sec. 3 (w.e.f. 16-4-1950), read with Act 81 of 1971, sec. 3 (w.e.f. 25-1-1972)].",
"1. Subs. by Act 42 of 1949, sec. 2, for “fourteen”.",
"2. Subs. by Act 42 of 1949, sec. 2, for “sixteen”.",
Section 362. Abduction,
"Whoever by force compels, or by any deceitful means induces, any person to",
"go from any place, is said to abduct that person.",
Section 363. Punishment for kidnapping,
"Whoever kidnaps any person from [India] or from lawful guardianship, shall",
1,
be punished with imprisonment of either description for a term which may,
"extend to seven years, and shall also be liable to fine.",
CLASSIFICATION OF OFFENCE,
Punishment—Imprisonment for 7 years and fine—Cognizable—Bailable—,
Triable by Magistrate of the first class—Non-compoundable.,
State Amendment,
Uttar Pradesh,
"In Uttar Pradesh the offence under section 363, I.P.C. is non-bailable.",
"[Vide Uttar Pradesh Act 1 of 1984, sec. 12 (w.e.f. 1-5-1984)].",
–,
"1. The words “British India” have successively been subs. by the A.O. 1948, the",
"A.O. 1950 and Act 3 of 1951, sec. 3 and Sch., to read as above.",
Section 363A. Kidnapping or maiming a minor for purposes of begging,
[363A. Kidnapping or maiming a minor for purposes of begging.—(1),
1,
"Whoever kidnaps any minor or, not being the lawful guardian of a minor,",
"obtains the custody of the minor, in order that such minor may be employed",
or used for the purpose of begging shall be punishable with imprisonment of,
"either description for a term which may extend to ten years, and shall also be",
liable to fine.,
(2) Whoever maims any minor in order that such minor may be employed or,
used for the purposes of begging shall be punishable with imprisonment for,
"life, and shall also be liable to fine.",
"(3) Where any person, not being the lawful guardian of a minor, employs or",
"uses such minor for the purposes of begging, it shall be presumed, unless the",
"contrary is proved, that he kidnapped or otherwise obtained the custody of",
that minor in order that the minor might be employed or used for the,
purposes of begging.,
"(4) In this section,",
(a) ‘begging’ means,
"(i) soliciting or receiving alms in a public place, whether under the pretence of",
"singing, dancing, fortune-telling, performing tricks or selling articles or",
otherwise;,
(ii) entering on any private premises for the purpose of soliciting or receiving,
alms;,
"(iii) exposing or exhibiting, with the object of obtaining or extorting alms, any",
"sore, wound, injury, deformity or disease, whether of himself or of any other",
person or of an animal;,
(iv) using a minor as an exhibit for the purpose of soliciting or receiving alms;,
(b) ‘minor’ means,
"(i) in the case of a male, a person under sixteen years of age; and",
"(ii) in the case of a female, a person under eighteen years of age.]",
CLASSIFICATION OF OFFENCE,
Para I,
Punishment—Imprisonment for 10 years and fine—Cognizable—Non-bailable,
—Triable by Magistrate of the first class—Non-compoundable.,
Para II,
Punishment—Imprisonment for life and fine—Cognizable—Non-bailable—,
Triable by Court of Session—Non-compoundable.,
"1. Ins. by Act 52 of 1959, sec. 2 (w.e.f. 15-1-1960).",
Section 364. Kidnapping or abducting in order to murder,
Whoever kidnaps or abducts any person in order that such person may be,
"murdered or may be so disposed of as to be put in danger of being murdered,",
shall be punished with [imprisonment for life] or rigorous imprisonment for a,
1,
"term which may extend to ten years, and shall also be liable to fine.",
Illustrations,
"(a) A kidnaps Z from [India], intending or knowing it to be likely that Z may",
2,
be sacrificed to an idol. A has committed the offence defined in this section.,
(b) A forcibly carries or entices B away from his home in order that B may be,
murdered. A has committed the offence defined in this section..,
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for life, or rigorous imprisonment for 10 years",
and fine—Cognizable—Non-bailable—Triable by Court of Session—Non-,
compoundable.,
–,
"1. Subs. by Act 26 of 1955, sec. 117 and Sch., for “transportation for life” (w.e.f.",
1-1-1956).,
"2. The words “British India” have successively been subs. by the A.O. 1948, the",
"A.O. 1950 and Act 3 of 1951, sec. 3 and Sch. to read as above.",
"Section 364A. Kidnapping for ransom, etc.",
"[364A. Kidnapping for ransom, etc.—Whoever kidnaps or abducts any person",
1,
or keeps a person in detention after such kidnapping or abduction and,
"threatens to cause death or hurt to such person, or by his conduct gives rise to",
"a reasonable apprehension that such person may be put to death or hurt, or",
causes hurt or death to such person in order to compel the Government,
or [any foreign State or international inter-governmental organization or any,
2,
"other person] to do or abstain from doing any act or to pay a ransom, shall be",
"punishable with death, or imprisonment for life, and shall also be liable to",
fine].,
Classification of Offence,
"Punishment—Death, or imprisonment for life and fine—Cognizable—Non-",
bailable—Triable by Court of Session—Non-compoundable.,
–,
"1. Ins. by Act 42 of 1993, sec. 2 (w.e.f. 22-5-1993).",
"2. Subs. by Act 24 of 1995, for “any other person” (w.e.f. 26-5-1995).",
Section 365. Kidnapping or abducting with intent secretly and wrongfully to confine,
person,
Whoever kidnaps or abducts any person with intent to cause that person to be,
"secretly and wrongfully confined, shall be punished with imprisonment of",
"either description for a term which may extend to seven years, and shall also",
be liable to fine.,
CLASSIFICATION OF OFFENCE,
Punishment—Imprisonment for 7 years and fine—Cognizable—Non-bailable—,
Triable by Magistrate of the first class—Non-compoundable.,
"Section 366. Kidnapping, abducting or inducing woman to compel her marriage, etc.",
Whoever kidnaps or abducts any woman with intent that she may be,
"compelled, or knowing it to be likely that she will be compelled, to marry any",
"person against her will, or in order that she may be forced or seduced to illicit",
"intercourse, or knowing it to be likely that she will be forced or seduced to",
illicit intercourse shall be punished with imprisonment of either description,
"for a term which may extend to ten years, and shall also be liable to fine; [and",
1,
"whoever, by means of criminal intimidation as defined in this Code or of abuse",
"of authority or any other method of compulsion, induces any woman to go",
"from any place with intent that she may be, or knowing that it is likely she will",
"be, forced or seduced to illicit intercourse with another person shall be",
punished as aforesaid].,
CLASSIFICATION OF OFFENCE,
Punishment—Imprisonment for 10 years and fine—Cognizable—Non-bailable,
—Triable by Court of Session—Non-compoundable.,
–,
"1. Added by Act 20 of 1923, sec. 2.",
Section 366A. Procreation of minor girl,
"[366A. procreation of minor girl.—Whoever, by any means whatsoever,",
1,
induces any minor girl under the age of eighteen years to go from any place or,
"to do any act with intent that such girl may be, or knowing that it is likely that",
"she will be, forced or seduced to illicit intercourse with another person shall be",
"punishable with imprisonment which may extend to ten years, and shall also",
be liable to fine.],
CLASSIFICATION OF OFFENCE,
Punishment—Imprisonment for 10 years and fine—Cognizable—Non-bailable,
—Triable by Court of Session—Non-compoundable.,
–,
"1. Ins. by Act 20 of 1923, sec. 3.",
Section 366B. Importation of girl from foreign country,
[366B. Importation of girl from foreign country.—Whoever imports,
1,
into [India] from any country outside India [or from the State of Jammu and,
2 3,
Kashmir] any girl under the age of twenty-one years with intent that she may,
"be, or knowing it to be likely that she will be, forced or seduced to illicit",
"intercourse with another person, [***] shall be punishable with imprisonment",
4,
which may extend to ten years and shall also be liable to fine.],
CLASSIFICATION OF OFFENCE,
Punishment—Imprisonment for 10 years and fine—Cognizable—Non-bailable,
—Triable by Court of Session—Non-compoundable.,
–,
"1. Ins. by Act 20 of 1923, sec. 3.",
"2. The words “British India” have successively been subs. by the A.O. 1948, the",
"A.O. 1950 and Act 3 of 1951, sec. 3 and Sch., to read as above.",
"3. Ins. by Act 3 of 1951, sec. 3 and Sch.",
"4. Certain words omitted by Act 3 of 1951, sec. 3 and Sch.",
"Section 367. Kidnapping or abducting in order to subject person to grievous hurt,",
"slavery, etc.",
Whoever kidnaps or abducts any person in order that such person may be,
"subjected, or may be so disposed of as to be put in danger of being subject to",
"grievous hurt, or slavery, or to unnatural lust of any person, or knowing it to",
"be likely that such person will be so subjected or disposed of, shall be",
punished with imprisonment of either description for a term which may,
"extend to ten years, and shall also be liable to fine.",
CLASSIFICATION OF OFFENCE,
Punishment—Imprisonment for 10 years and fine—Cognizable—Non-bailable,
—Triable by Court of Session—Non-compoundable.,
"Section 368. Wrongfully concealing or keeping in confinement, kidnapped or abducted",
person,
"Whoever, knowing that any person has been kidnapped or has been abducted,",
"wrongfully conceals or confines such person, shall be punished in the same",
manner as if he had kidnapped or abducted such person with the same,
"intention or knowledge, or for the same purpose as that with or for which he",
conceals or detains such person in confinement.,
CLASSIFICATION OF OFFENCE,
Punishment—Punishment for kidnapping or abduction—Cognizance—Non-,
bailable—Triable by court by which the kidnapping or abduction is triable—,
Non-compoundable.,
Section 369. Kidnapping or abducting child under ten years with intent to steal from its,
person,
Whoever kidnaps or abducts any child under the age of ten years with the,
intention of taking dishonestly any movable property from the person of such,
"child, shall be punished with imprisonment of either description for a term",
"which may extend to seven years, and shall also be liable to fine.",
CLASSIFICATION OF OFFENCE,
Punishment—Imprisonment for 7 years and fine—Cognizable—Non-bailable—,
Triable by Magistrate of the first class—Non-compoundable.,
Section 370. Substitution of new sections 370 and 370A for section 370.,
"1[370. (1 ) Whoever, for the purpose of exploitation, (a ) recruits, (b )",
"transports,",
"(c ) harbours, (d ) transfers, or (e ) receives, a person or persons, by",
"sritF .— using threats, or",
"1. — using force, or any other form of coercion, or",
"2. — by abduction, or",
"3. — by practising fraud, or deception, or",
"4. — by abuse of power, or",
"lhytxiS .— by inducement, including the giving or receiving of payments or",
"benefits, in order to achieve the consent of any person having control over the",
"person recruited, transported, harboured, transferred or received, commits",
the offence of trafficking.,
1n iolnpxEtaa .— The expression “exploitation” shall include any act of,
"physical exploitation or any form of sexual exploitation, slavery or practices",
"similar to slavery, servitude, or the forced removal of organs",
2n iolnpxEtaa .— The consent of the victim is immaterial in determination of,
the offence of trafficking.,
(2 ) Whoever commits the offence of trafficking shall be punished with,
"rigorous imprisonment for a term which shall not be less than seven years, but",
"which may extend to ten years, and shall also be liable to fine.",
"(3 ) Where the offence involves the trafficking of more than one person, it shall",
be punishable with rigorous imprisonment for a term which shall not be less,
"than ten years but which may extend to imprisonment for life, and shall also",
be liable to fine.,
"(4 ) Where the offence involves the trafficking of a minor, it shall be",
punishable with rigorous imprisonment for a term which shall not be less than,
"ten years, but which may extend to imprisonment for life, and shall also be",
liable to fine.,
"(5 ) Where the offence involves the trafficking of more than one minor, it shall",
be punishable with rigorous imprisonment for a term which shall not be less,
"than fourteen years, but which may extend to imprisonment for life, and shall",
also be liable to fine.,
(6 ) If a person is convicted of the offence of trafficking of minor on more than,
"one occasion, then such person shall be punished with imprisonment for life,",
which shall mean imprisonment for the remainder of that person’s natural,
"life, and shall also be liable to fine.",
(7 ) When a public servant or a police officer is involved in the trafficking of,
"any person then, such public servant or police officer shall be punished with",
"imprisonment for life, which shall mean imprisonment for the remainder of",
"that person’s natural life, and shall also be liable to fine.",
"370A. (1 ) Whoever, knowingly or having reason to believe that a minor has",
"been trafficked, engages such minor for sexual exploitation in any manner,",
shall be punished with rigorous imprisonment for a term which shall not be,
"less than five years, but which may extend to seven years, and shall also be",
liable to fine.,
"(2 ) Whoever, knowingly by or having reason to believe that a person has been",
"trafficked, engages such person for sexual exploitation in any manner, shall be",
punished with rigorous imprisonment for a term which shall not be less than,
"three years, but which may extend to five years, and shall also be liable to",
fine.],
"1. Inserted by Section 8 of ‘The Criminal Law (Amendment) Act, 2013′",
Section 371. Habitual dealing in slaves,
"Whoever habitually imports, exports, removes, buys, sells, traffics or deals in",
"slaves, shall be punished with [imprisonment for life] or with imprisonment",
1,
"of either description for a term not exceeding the years, and shall also be liable",
to fine.,
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for life, or imprisonment for 10 years, and fine—",
Cognizable—Non-bailable—Triable by Court of Session—Non-compoundable.,
"1. Subs. by Act 26 of 1955, sec. 117 and Sch., for “transportation for life” (w.e.f.",
1-1-1956).,
"Section 372. Selling minor for purposes of prostitution, etc.",
"Whoever sells, lets to hire, or otherwise disposes of any [person under the age",
1,
of eighteen years with intent that such person shall at any age be employed or,
used for the purpose of prostitution or illicit intercourse with any person or for,
"any unlawful and immoral purpose, or knowing it to be likely that such person",
"will at any age be] employed or used for any such purpose, shall be punished",
with imprisonment of either description for a term which may extend to ten,
"years, and shall be liable to fine.",
[Explanation I,
2,
"When a female under the age of eighteen years sold, let for hire, or otherwise",
"disposed of to a prostitute or to any person who keeps or manages a brothel,",
"the person so disposing of such female shall, until the contrary is proved, be",
presumed to have disposed of her with the intent that she shall be used for the,
purpose of prostitution.,
Explanation II,
For the purposes of this section “illicit intercourse” means sexual intercourse,
"between persons not united by marriage or by any union or tie which, though",
"not amounting to a marriage, is recognised by the personal law or custom of",
"the community to which they belong or, where they belong to different",
"communities, of both such communities, as constituting between them a quasi",
-marital relation].,
CLASSIFICATION OF OFFENCE,
Punishment—Imprisonment for 10 years and fine—Cognizable—Non-bailable,
—Triable by Court of Session—Non-compoundable.,
"1. Subs. by Act 18 of 1924, sec. 2, for certain words.",
"2. Ins. by Act 18 of 1924, sec. 3.",
"Section 373. Buying minor for purposes of prostitution, etc.",
"Whoever buys, hires or otherwise obtains possession of any [person under the",
1,
age of eighteen years with intent that such person shall at any age be employed,
or used for the purpose of prostitution or illicit intercourse with any person or,
"for any unlawful and immoral purpose, of knowing it to be likely that such",
"person will at any age be] employed or used for any purpose, shall be punished",
with imprisonment of either description for a term which may extend to ten,
"years, and shall also be liable to fine.",
[Explanation I,
2,
"Any prostitute or any person keeping or managing a brothel, who buys, hires",
or otherwise obtains possession of a female under the age of eighteen years,
"shall, until the contrary is proved, be presumed to have obtained possession of",
such female with the intent that she shall be used for the purpose of,
prostitution.,
Explanation II,
“Illicit intercourse” has the same meaning as in section 372.],
CLASSIFICATION OF OFFENCE,
Punishment—Imprisonment for 10 years and fine—Cognizable—Non-bailable,
—Triable by Court of Session—Non-compoundable.,
–,
"1. Subs. by Act 18 of 1924, sec. 2, for certain words.",
"2. Ins. by Act 18 of 1924, sec. 4.",
Section 374. Unlawful compulsory labour,
Whoever unlawfully compels any person to labour against the will of that,
"person, shall be punished with imprisonment of either description for a term",
"which may extend to one year, or with both.",
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 1 year, or fine, or both—Cognizable—Bailable",
—Triable by any Magistrate—Non-compoundable.,
Section 375. Rape,
1[375. A man is said to commit “rape” if he,
"(a ) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus",
of a woman or makes her to do so with him or any other person; or,
"(b ) inserts, to any extent, any object or a part of the body, not being the penis,",
"into the vagina, the urethra or anus of a woman or makes her to do so with",
him or any other person; or,
(c ) manipulates any part of the body of a woman so as to cause penetration,
"into the vagina, urethra, anus or any part of body of such woman or makes her",
to do so with him or any other person; or,
"(d ) applies his mouth to the vagina, anus, urethra of a woman or makes her to",
"do so with him or any other person, under the circumstances falling under any",
of the following seven descriptions:,
1. —Against her will.,
2. —Without her consent.,
"3. —With her consent, when her consent has been obtained by putting her or any person in whom she is",
"interested, in fear of death or of hurt.",
"4. —With her consent, when the man knows that he is not her husband and that her consent is given because",
she believes that he is another man to whom she is or believes herself to be lawfully married.,
"5. —With her consent when, at the time of giving such consent, by reason of unsoundness of mind or",
intoxication or the administration by him personally or through another of any stupefying or unwholesome,
"substance, she is unable to understand the nature and consequences of that to which she gives consent.",
"6. —With or without her consent, when she is under eighteen years of age.",
hlynteveS .—When she is unable to communicate consent.,
"1n iolnpxEtaa .—For the purposes of this section, “vagina” shall also",
include arljomai baa .,
2n iolnpxEtaa .—Consent means an unequivocal voluntary agreement when,
"the woman by words, gestures or any form of verbal or non-verbal",
"communication, communicates willingness to participate in the specific sexual",
act:,
Provided that a woman who does not physically resist to the act of penetration,
"shall not by the reason only of that fact, be regarded as consenting to the",
sexual activity.,
n 1iotpecxE .—A medical procedure or intervention shall not constitute rape.,
"n 2iotpecxE .—Sexual intercourse or sexual acts by a man with his own wife,",
"the wife not being under fifteen years of age, is not rape.]",
–,
"1. Inserted by Section 9 of ‘The Criminal Law (Amendment) Act, 2013′",
Section 376. Punishment for rape,
"[376. (1 ) Whoever, except in the cases provided for in sub-section (2 ),",
1,
"commits rape, shall be punished with rigorous imprisonment of either",
"description for a term which shall not be less than seven years, but which may",
"extend to imprisonment for life, and shall also be liable to fine.",
"(2 ) Whoever,",
"(a ) being a police officer, commits rape",
(i ) within the limits of the police station to which such police officer is,
appointed; or,
(ii ) in the premises of any station house; or,
(iii ) on a woman in such police officer’s custody or in the custody of a police,
officer subordinate to such police officer; or,
"(b ) being a public servant, commits rape on a woman in such public servant’s",
custody or in the custody of a public servant subordinate to such public,
servant; or,
(c ) being a member of the armed forces deployed in an area by the Central or a,
State Government commits rape in such area; or,
"(d ) being on the management or on the staff of a jail, remand home or other",
place of custody established by or under any law for the time being in force or,
"of a women’s or children’s institution, commits rape on any inmate of such",
"jail, remand home, place or institution; or",
"(e ) being on the management or on the staff of a hospital, commits rape on a",
woman in that hospital; or,
"(f ) being a relative, guardian or teacher of, or a person in a position of trust or",
"authority towards the woman, commits rape on such woman; or",
(g ) commits rape during communal or sectarian violence; or,
(h ) commits rape on a woman knowing her to be pregnant; or,
(i ) commits rape on a woman when she is under sixteen years of age;,
Or,
"(j ) commits rape, on a woman incapable of giving consent; or",
"(k ) being in a position of control or dominance over a woman, commits rape",
on such woman; or,
(l ) commits rape on a woman suffering from mental or physical disability; or,
(m ) while committing rape causes grievous bodily harm or maims or,
disfigures or endangers the life of a woman; or,
"(n ) commits rape repeatedly on the same woman, shall be punished with",
"rigorous imprisonment for a term which shall not be less than ten years, but",
"which may extend to imprisonment for life, which shall mean imprisonment",
"for the remainder of that person’s natural life, and shall also be liable to fine.",
"niolnpxEtaa .—For the purposes of this sub-section,",
"(a ) “armed forces” means the naval, military and air forces and includes any",
member of the Armed Forces constituted under any law for the time being in,
"force, including the paramilitary forces and any auxiliary forces that are under",
the control of the Central Government or the State Government;,
(b ) “hospital” means the precincts of the hospital and includes the precincts of,
any institution for the reception and treatment of persons during,
convalescence or of persons requiring medical attention or rehabilitation;,
(c ) “police officer” shall have the same meaning as assigned to the expression,
"“police” under the Police Act, 1861;",
"(d ) “women’s or children’s institution” means an institution, whether called an",
orphanage or a home for neglected women or children or a widow’s home or,
"an institution called by any other name, which is established and maintained",
for the reception and care of women or children.],
–,
"1. Inserted by Section 9 of ‘The Criminal Law (Amendment) Act, 2013′.",
Section 376A. Intercourse by a man with his wife during separation,
"[376A. Whoever, commits an offence punishable under sub-section (1 ) or",
1,
subsection,
(2 ) of section 376 and in the course of such commission inflicts an injury,
which causes the death of the woman or causes the woman to be in a,
"persistent vegetative state, shall be punished with rigorous imprisonment for a",
"term which shall not be less than twenty years, but which may extend to",
"imprisonment for life, which shall mean imprisonment for the remainder of",
"that person’s natural life, or with death.]",
—–,
"1.Inserted by Section 376A of ‘The Criminal Law (Amendment) Act, 2013′.",
Section 376B. Intercourse by public servant with woman is his custody,
"1[376B. Whoever has sexual intercourse with his own wife, who is living",
"separately, whether under a decree of separation or otherwise, without her",
"consent, shall be punished with imprisonment of either description for a term",
"which shall not be less than two years but which may extend to seven years,",
and shall also be liable to fine.,
"1. —In this section, “sexual intercourse” shall mean any of the acts mentioned in clauses (a ) to (d ) of section",
375.],
—–,
"1. Inserted by Section 9 of ‘The Criminal Law (Amendment) Act, 2013′.",
"Section 376C. Intercourse by superintendent of jail, remand home, etc.",
"[376C. Whoever, being",
1,
(a ) in a position of authority or in a fiduciary relationship; or,
(b ) a public servant; or,
"(c ) superintendent or manager of a jail, remand home or other place of",
"custody established by or under any law for the time being in force, or a",
women’s,
or children’s institution; or,
"(d ) on the management of a hospital or being on the staff of a hospital, abuses",
such position or fiduciary relationship to induce or seduce any woman either,
in his custody or under his charge or present in the premises to have sexual,
"intercourse with him, such sexual intercourse not amounting to the offence of",
"rape, shall be punished with rigorous imprisonment of either description for a",
"term which shall not be less than five years, but which may extend to ten",
"years, and shall also be liable to fine.",
"1n iolnpxEtaa .—In this section, “sexual intercourse” shall mean any of the",
acts mentioned in clauses (a ) to (d ) of section 375.,
"2n iolnpxEtaa . —For the purposes of this section, n 1oilnpxEata to section",
375 shall also be applicable.,
"3n iolnpxEtaa .—”Superintendent”, in relation to a jail, remand home or other",
"place of custody or a women’s or children’s institution, includes a person",
"holding any other office in such jail, remand home, place or institution by",
virtue of which such person can exercise any authority or control over its,
inmates.,
4n iolnpxEtaa .—The expressions “hospital” and “women’s or children’s,
institution” shall respectively have the same meaning as in niolnpxEtaa to,
sub-section (2 ) of section 376.],
—–,
"1. Inserted by Section 9 of ‘The Criminal Law (Amendment) Act, 2013′.",
Section 376D. Intercourse by any member of the management or staff of a hospital with,
any woman in that hospital,
[376D. Where a woman is raped by one or more persons constituting a group,
1,
"or acting in furtherance of a common intention, each of those persons shall be",
deemed to have committed the offence of rape and shall be punished with,
"rigorous imprisonment for a term which shall not be less than twenty years,",
but which may extend to life which shall mean imprisonment for the,
"remainder of that person’s natural life, and with",
fine:,
Provided that such fine shall be just and reasonable to meet the medical,
expenses and rehabilitation of the victim:,
Provided further that any fine imposed under this section shall be paid to the,
victim.],
—–,
"1. Inserted by Section 9 of ‘The Criminal Law (Amendment) Act, 2013′.",
1[376E. Whoever has been previously convicted of an offence punishable,
under section 376 or section 376A or section 376D and is subsequently,
convicted of an offence punishable under any of the said sections shall be,
punished with imprisonment for life which shall mean imprisonment for the,
"remainder of that person’s natural life, or with death.’]",
"1. Inserted by Section 9 of ‘The Criminal Law (Amendment) Act, 2013′.",
Section 377. Unnatural offences,
Whoever voluntarily has carnal intercourse against the order of nature with,
"any man, woman or animal, shall be punished with [imprisonment for life], or",
1,
with imprisonment of either description for term which may extend to ten,
"years, and shall also be liable to fine.",
Explanation,
Penetration is sufficient to constitute the carnal intercourse necessary to the,
offence described in this section.,
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for life, or imprisonment for 10 years and fine—",
Cognizable—Non-Bailable—Triable by Magistrate of the first class—Non-,
compoundable.,
"1. Subs. by Act 26 of 1955, sec. 117 and Sch., for “transportation for life” (w.e.f.",
1-1-1956).,
Section 378. Theft,
"Whoever, intending to take dishonestly any moveable property out of the",
"possession of any person without that person’s consent, moves that property",
"in order to such taking, is said to commit theft.",
Explanation 1,
"A thing so long as it is attached to the earth, not being movable property, is",
not the subject of theft; but it becomes capable of being the subject of theft as,
soon as it is severed from the earth.,
Explanation 2,
A moving effected by the same act which affects the severance may be a theft.,
Explanation 3,
A person is said to cause a thing to move by removing an obstacle which,
"prevented it from moving or by separating it from any other thing, as well as",
by actually moving it.,
Explanation 4,
"A person, who by any means causes an animal to move, is said to move that",
"animal, and to move everything which, in consequence of the motion so",
"caused, is moved by that animal.",
Explanation 5,
"The consent mentioned in the definition may be express or implied, and may",
"be given either by the person in possession, or by any person having for that",
purpose authority either express or implied.,
Illustrations,
"(a) A cuts down a tree on Z’s ground, with the intention of dishonestly taking",
"the tree out of Z’s possession without Z’s consent. Here, as soon as A has",
"severed the tree in order to such taking, he has committed theft.",
"(b) A puts a bait for dogs in his pocket, and thus induces Z’s dog to follow it.",
"Here, if A’s intention be dishonestly to take the dog out of Z’s possession",
without Z’s consent. A has committed theft as soon as Z’s dog has begun to,
follow A.,
(c) A meets a bullock carrying a box of treasure. He drives the bullock in a,
"certain direction, in order that he may dishonestly take the treasure. As soon",
"as the bullock begins to move, A has committed theft of the treasure.",
"(d) A, being Z’s servant, and entrusted by Z with the care of Z’s plate,",
"dishonestly runs away with the plate, without Z’s consent. A has committed",
theft.,
"(e) Z, going on a journey, entrusts his plate to A, the keeper of the warehouse,",
till Z shall return. A carries the plate to a goldsmith and sells it. Here the plate,
"was not in Z’s possession. It could not therefore be taken out of Z’s possession,",
"and A has not committed theft, though he may have committed criminal",
breach of trust.,
(f) A finds a ring belonging to Z on a table in the house which Z occupies. Here,
"the ring is in Z’s possession, and if A dishonestly removes it, A commits theft.",
"(g) A finds a ring lying on the highroad, not in the possession of any person. A",
"by taking it, commits no theft, though he may commit criminal",
misappropriation of property.,
(h) A sees a ring belonging to Z lying on a table in Z’s house. Not venturing to,
"misappropriate the ring immediately for fear of search and detection, A hides",
"the ring in a place where it is highly improbable that it will ever be found by Z,",
with the intention of taking the ring from the hiding place and selling it when,
"the loss is forgotten. Here A, at the time of first moving the ring, commits",
theft.,
"(i) A delivers his watch to Z, a jeweller, to be regulated. Z carries it to his shop.",
"A, not owing to the jeweller any debt for which the jeweller might lawfully",
"detain the watch as a security, enters the shop openly, takes his watch by force",
"out of Z’s hand, and carries it away. Here A, though he may have committed",
"criminal trespass and assault, has not committed theft, in as much as what he",
did was not done dishonestly.,
"(j) If A owes money to Z for repairing the watch, and if Z retains the watch",
"lawfully as a security for the debt, and A takes the watch out of Z’s possession,",
"with the intention of depriving Z of the property as a security for his debt, he",
"commits theft, in as much as he takes it dishonestly.",
"(k) Again, if A, having pawned his watch to Z, takes it out of Z’s possession",
"without Z’s consent, not having paid what he borrowed on the watch, he",
"commits theft, though the watch is his own property in as much as he takes it",
dishonestly.,
"(l) A takes an article belonging to Z out of Z’s possession, without Z’s consent,",
with the intention of keeping it until he obtains money from Z as a reward for,
its restoration. Here A takes dishonestly; A has therefore committed theft.,
"(m) A, being on friendly terms with Z, goes into Z’s library in Z’s absence, and",
takes away a book without Z’s express consent for the purpose merely of,
"reading it, and with the intention of returning it. Here, it is probable that A",
may have conceived that he had Z’s implied consent to use Z’s book. If this was,
"A’s impression, A has not committed theft.",
"(n) A asks charity from Z’s wife. She gives A money, food and clothes, which A",
knows to belong to Z her husband. Here it is probable that A may conceive,
"that Z’s wife is authorised to give away alms. If this was A’s impression, A has",
not committed theft.,
"(o) A is the paramour of Z’s wife. She gives a valuable property, which A knows",
"to belong to her husband Z, and to be such property as she has no authority",
"from Z to give. If A takes the property dishonestly, he commits theft.",
"(p) A, in good faith, believing property belonging to Z to be A’s own property,",
"takes that property out of B’s possession. Here, as A does not take dishonestly,",
he does not commit theft.,
Section 379. Punishment for theft,
Whoever commits theft shall be punished with imprisonment of either,
"description for a term which may extend to three years, or with fine, or with",
both.,
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 3 years, or fine, or both—Cognizable—Non-",
bailable—Triable by any Magistrate—Compoundable by the owner of the,
property stolen with the permission of the court.,
"Section 380. Theft in dwelling house, etc",
"Whoever commits theft in any building, tent or vessel, which building, tent or",
"vessel is used as a human dwelling, or used for the custody of property, shall",
be punished with imprisonment of either description for a term which may,
"extend to seven years, and shall also be liable to fine.",
CLASSIFICATION OF OFFENCE,
Punishment—Imprisonment for 7 years and fine—Cognizable—Non-bailable—,
Triable by any Magistrate—Non-compoundable.,
STATE AMENDMENT,
Tamil Nadu,
Section 380 shall be renumbered as sub-section (1) of that section and after,
"sub-section (1) as so renumbered, the following sub-section shall be added,",
namely:,
“(2) Whoever commits theft in respect of any idol or icon in any building used,
as a place of worship shall be punished with rigorous imprisonment for a term,
which shall not be less than two years but which may extend to three years and,
with fine which shall not be less than two thousand rupees:,
"Provided that the court may, for adequate and special reasons to be mentioned",
in the judgment impose a sentence of imprisonment for a term of less than,
two years.”,
"[Vide Tamil Nadu Act 28 of 1993, sec. 2 (w.e.f. 13-7-1993)].Section 381. Theft by clerk or servant of",
property in possession of master,
"Whoever, being a clerk or servant, or being employed in the capacity of a clerk",
"or servant, commits theft in respect of any property in the possession of his",
"master or employer, shall be punished with imprisonment of either",
"description for a term which may extend to seven years, and shall also be",
liable to fine.,
CLASSIFICATION OF OFFENCE,
Punishment—Imprisonment for 7 years and fine—Cognizable—Non-bailable—,
Triable by any Magistrate—Compounded by the owner of the property stolen,
with the permission of the court.,
"Section 382. Theft after preparation made for causing death, hurt or restraint in order to",
the committing of the theft,
"Whoever commits theft, having made preparation for causing death, or hurt,",
"or restrain, or fear of death, or of hurt, or of restraint, to any person, in order",
"to the committing of such theft, or in order to the effecting of his escape after",
"the committing of such theft, or in order to the retaining of property taken by",
"such theft, shall be punished with rigorous imprisonment for a term which",
"may extend to ten years, and shall also be liable to fine.",
Illustrations,
"(a) A commits theft on property in Z’s possession; and, while committing this",
"theft, he has a loaded pistol under his garment, having provided this pistol for",
the purpose of hurting Z in case Z should resist. A has committed the offence,
defined in this section.,
"(b) A picks Z’s pocket, having posted several of his companions near him, in",
"order that they may restrain Z, if Z should perceive what is passing and should",
"resist, or should attempt to apprehend A. A has committed the offence defined",
in this section,
CLASSIFICATION OF OFFENCE,
Punishment—Rigorous imprisonment for 10 years and fine—Cognizable—,
Non-bailable—Triable by Magistrate of the first class—Non-compoundable.,
Section 383. Extortion,
"Whoever intentionally puts any person in fear of any injury to that person, or",
"to any other, and thereby dishonestly induces the person so put in fear to",
"deliver to any property or valuable security, or anything signed or sealed",
"which may be converted into a valuable security, commits “extortion”.",
Illustrations,
(a) A threatens to publish a defamatory libel concerning Z unless Z give him,
money. He thus induces Z to give him money. A has committed extortion.,
"(b) A threatens Z that he will keep Z’s child in wrongful confinement, unless Z",
will sign and deliver to A promissory note binding Z to pay certain monies to,
A. Z signs and delivers the note. A has committed extortion.,
(c) A threatens to send club-men to plough up Z’s field unless Z will sign and,
"deliver to B bond binding Z under a penalty to deliver certain produce to B,",
and thereby induces Z to sing and deliver the bond. A has committed,
extortion.,
"(d) A, by putting Z in fear of grievous hurt, dishonestly induces Z to sign or",
affix his seal to a blank paper and deliver it to A. Z signs and delivers the paper,
"to A. Here, as the paper so signed may be converted into a valuable security. A",
has committed extortion.,
Section 384. Punishment for extortion,
Whoever commits extortion shall be punished with imprisonment of either,
"description for a term which may extend to three years, or with fine or with",
both.,
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 3 years, or fine, or both—Cognizable—Non-",
bailable—Triable by any Magistrate—Non-compoundable.,
Section 385. Putting person in fear of injury in order to commit extortion,
"Whoever, in order to the committing of extortion, puts any person in fear, or",
"attempts to put any person in fear, of any injury, shall be punished with",
"imprisonment of either description for a term which may extend to two years,",
"or with fine, or with both.",
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 2 years, or fine, or both—Cognizable—",
Bailable—Triable by any Magistrate—Non-compoundable.,
Section 386. Extortion by putting a person in fear of death or grievous hurt,
Whoever commits extortion by putting any person in fear of death or of,
"grievous hurt o that person or to any other, shall be punished with",
"imprisonment of either description for a term which may extend to ten years,",
and shall also be liable to fine.,
CLASSIFICATION OF OFFENCE,
Punishment—Imprisonment for 10 years and fine—Cognizable—Non-bailable,
—Triable by Magistrate of the first class—Non-compoundable.,
"Section 387. Putting person in fear of death or of grievous hurt, in order to commit",
extortion,
"Whoever, in order to the committing of extortion, puts or attempts to put any",
"person in fear of death or of grievous hurt to that person or to any other, shall",
be punished with imprisonment of either description for a term which may,
"extend to seven years, and shall also be liable to fine.",
CLASSIFICATION OF OFFENCE,
Punishment—Imprisonment for 7 years and fine—Cognizable—Non-bailable—,
Triable by Magistrate of the first class—Non-compoundable.,
Section 388. Extortion by threat of accusation of an offence punishable with death or,
"imprisonment for life, etc.",
Whoever commits extortion by putting any person in fear of an accusation,
"against that person or any other, of having committed or attempted to commit",
"any offence punishable with death, or with [imprisonment for life], or with",
1,
imprisonment for a term which may extend to ten years or of having,
"attempted to induce any other person to commit such offence, shall be",
punished with imprisonment of either description for a term which may,
"extend to ten years, and shall also be liable to fine; and, if the offence be one",
"punishable under section 377 of this Code, may be punished with [imprison-",
1,
ment for life].,
CLASSIFICATION OF OFFENCE,
Punishment—Imprisonment for 10 years and fine—Cognizable—Bailable—,
Triable by Magistrate of the first class—Non-compoundable.,
"1. Subs. by Act 26 of 1955, sec. 117 and Sch., for “transportation for life” (w.e.f.",
1-1-1956).,
"Section 389. Putting person in fear of accusation of offence, in order to commit extortion",
"Whoever, in order to the committing of extortion, puts or attempts to put any",
"person in fear of an accusation, against that person or any other, of having",
"committed, or attempted to commit an offence punished with death or",
"with [imprisonment for life], or with imprisonment for a term which may",
1,
"extend to ten years, shall be punished with imprisonment of either description",
"for term which may extend to ten years, and shall also be liable to fine; and, if",
"the offence be punished under section 377 of this Code, may be punished",
with [imprisonment for life].,
1,
CLASSIFICATION OF OFFENCE,
Para I,
Punishment—Imprisonment for 10 years and fine—Cognizable—Non-bailable,
—Triable by Magistrate of the first class—Non-compoundable.,
Para II,
Punishment—Imprisonment for life—Cognizable—Bailable—Triable by,
Magistrate of the first class—Non-compoundable.,
"1. Subs. by Act 26 of 1955, sec. 117 and Sch., for “transportation for life” (w.e.f.",
1-1-1956).,
Section 390. Robbery,
In all robbery there is either theft or extortion.,
"When theft is robbery.—Theft is “robbery” if, in order to the committing of",
"the theft, or in committing the theft, or in carrying away or attempting to carry",
"away property obtained by the theft, the offender, for that end, voluntarily",
"causes or attempts to cause to any person death or hurt or wrongful restraint,",
"or fear of instant death or of instant hurt, or of instant wrongful restraint.",
"When extortion is robbery.—Extortion is “robbery” if the offender, at the",
"time of committing the extortion, is in the presence of the person put in fear,",
"and commits the extortion by putting that person in fear of instant death, of",
"instant hurt, or of instant wrongful restraint to that person or to some other",
"person, and, by so putting in fear, induces the person so put in fear then and",
there to deliver up the thing extorted.,
Explanation,
The offender is said to be present if he is sufficiently near to put the other,
"person in fear of instant death, of instant hurt, or of instant wrongful restraint.",
Illustrations,
(a) A holds Z down and fraudulently takes Z’s money and jewels from Z’s,
"clothes without Z’s consent. Here A has committed theft, and in order to the",
"committing of that theft, has voluntarily caused wrongful restraint to Z. A has",
therefore committed robbery.,
"(b) A meets Z on the high roads, shows a pistol, and demands Z’s purse. Z in",
"consequence, surrenders his purse. Here A has extorted the purse from Z by",
"putting him in fear of instant hurt, and being at the time of committing the",
extortion in his presence. A has therefore committed robbery.,
(c) A meets Z and Z’s child on the high road. A takes the child and threatens to,
"fling it down a precipice, unless Z delivers his purse. Z, in consequence",
"delivers his purse. Here A has extorted the purse from Z, by causing Z to be in",
fear of instant hurt to the child who is there present. A has therefore,
committed robbery on Z.,
(d) A obtains property from Z by saying—“Your child is in the hands of my,
"gang, and will be put to death unless you send us ten thousand rupees”. This is",
"extortion, and punishable as such; but it is not robbery, unless Z is put in fear",
of the instant death of his child.,
Section 391. Dacoity,
"When five or more persons conjointly commit or attempt to commit a robbery,",
or where the whole number of persons conjointly committing or attempting to,
"commit a robbery, and persons present and aiding such commission or",
"attempt, amount to five or more, every person so committing, attempting or",
"aiding, is said to commit “dacoity”.",
Section 392. Punishment for robbery,
Whoever commits robbery shall be punished with rigorous imprisonment for a,
"term which may extend to ten years, and shall also be liable to fine; and, if the",
"robbery be committed on the highway between sunset and sunrise, the",
imprisonment may be extended to fourteen years.,
CLASSIFICATION OF OFFENCE,
Para I,
Punishment—Rigorous imprisonment for 10 years and fine—Cognizable—,
Non-bailable—Triable by Magistrate of the first class—Non-compoundable.,
Para II,
"Punishment—Rigorous imprisonment for 14 years, and fine—Cognizable—",
Non-bailable—Triable by Magistrate of the first class—Non-compoundable.,
Section 393. Attempt to commit robbery,
Whoever attempts to commit robbery shall be punished with rigorous,
"imprisonment for a term which may extend to seven years, and shall also be",
liable to fine.,
CLASSIFICATION OF OFFENCE,
Punishment—Rigorous imprisonment for 7 years and fine—Cognizable—Non-,
bailable—Triable by Magistrate of the first class—Non-compoundable.,
Section 394. Voluntarily causing hurt in committing robbery,
"If any person, in committing or in attempting to commit robbery, voluntarily",
"causes hurt, such person, and any other person jointly concerned in",
"committing or attempting to commit such robbery, shall be punished",
"with [imprisonment for life], or with rigorous imprisonment for a term which",
1,
"may extend to ten years, and shall also be liable to fine.",
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for life, or rigorous imprisonment for 10 years",
and fine—Cognizable—Non-bailable—Triable by Magistrate of the first class—,
Non-compoundable.,
Section 395. Punishment for dacoity,
"Whoever commits dacoity shall be punished with [imprisonment for life], or",
1,
"with rigorous imprisonment for a term which may extend to ten years, and",
shall also be liable to fine.,
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for life, or rigorous imprisonment for 10 years",
and fine—Cognizable—Non-bailable—Triable by Court of Session—Non-,
compoundable.,
–,
"1. Subs. by Act 26 of 1955, sec.117 and sch., for “transportation for life”",
(w.e.f.1-1-1956).,
Section 396. Dacoity with murder,
"If any one of five or more persons, who are conjointly committing dacoity,",
"commits murder in so committing dacoity, every one of those persons shall be",
"punished with death, or [imprisonment for life], or rigorous imprisonment for",
1,
"term which may extend to ten years, and shall also be liable to fine.",
CLASSIFICATION OF OFFENCE,
"Punishment—Death, imprisonment for life, or rigorous imprisonment for 10",
years and fine—Cognizable—Non-bailable—Triable by Court of Session—Non-,
compoundable.,
"1. Subs. by Act 26 of 1955, sec. 117 and Sch., for “transportation for life” (w.e.f.",
1-1-1956).,
"Section 397. Robbery, or dacoity, with attempt to cause death or grievous hurt",
"If, at the time of committing robbery or dacoity, the offender uses any deadly",
"weapon, or causes grievous hurt to any person, or attempts to cause death or",
"grievous hurt to any person, the imprisonment with which such offender shall",
be punished shall not be less than seven years.,
CLASSIFICATION OF OFFENCE,
Punishment—Rigorous imprisonment for not less than 7 years—Cognizable—,
Non-bailable—Triable by Court of Session—Non-compoundable.,
Section 398. Attempt to commit robbery or dacoity when armed with deadly weapon,
"If, at the time of attempting to commit robbery or dacoity, the offender armed",
"with any deadly weapon, the imprisonment with which such offender shall be",
punished shall not be less than seven years.,
CLASSIFICATION OF OFFENCE,
Punishment—Rigorous imprisonment for not less than 7 years—Cognizable—,
Non-bailable—Triable by Court of Session—Non-compoundable.,
Section 399. Making preparation to commit dacoity,
"Whoever makes, any preparation for committing dacoity, shall be punished",
"with rigorous imprisonment for a term which may extend to ten years, and",
shall also be liable to fine.,
CLASSIFICATION OF OFFENCE,
Punishment—Rigorous imprisonment for 10 years and fine—Cognizable—,
Non-bailable—Triable by Court of Session—Non-compoundable.,
Section 400. Punishment for belonging to gang of dacoits,
"Whoever, at any time after the passing of this Act, shall belong to a gang of",
"persons associated for the purpose of habitually committing dacoity, shall be",
"punished with [imprisonment for life], or with rigorous imprisonment for a",
1,
"term which may extend to ten years, and shall also be liable to fine.",
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for life, or rigorous imprisonment for 10 years",
and fine—Cognizable—Non-bailable—Triable by Court of Session—Non-,
compoundable.,
–,
"1. Subs. by Act 26 of 1955, sec. 117 and Sch., for “transportation for life” (w.e.f.",
1-1-1956).,
Section 401. Punishment for belonging to gang of thieves,
"Whoever, at any time after the passing of this Act, shall belong to any",
wandering or other gang of persons associated for the purpose of habitually,
"committing theft or robbery, and not being a gang of thugs or dacoits, shall be",
punished with rigorous imprisonment for a term which may extend to seven,
"years, and shall also be liable to fine.",
CLASSIFICATION OF OFFENCE,
Punishment—Rigorous imprisonment for 7 years and fine—Cognizable—Non-,
bailable—Triable by Magistrate of the first class—Non-compoundable.,
Section 402. Assembling for purpose of committing dacoity,
"Whoever, at any time after the passing of this Act, shall be one of five or more",
"persons assembled for the purpose of committing dacoity, shall be punished",
"with rigorous imprisonment for a term which may extend to seven years, and",
shall also be liable to fine.,
CLASSIFICATION OF OFFENCE,
Punishment—Rigorous imprisonment for 7 years and fine—Cognizable—Non-,
bailable—Triable by Court of Session—Non-compoundable.,
Section 403. Dishonest misappropriation of property,
Whoever dishonestly mis-appropriates or converts to his own use any movable,
"property, shall be punished with imprisonment of either description for a term",
"which may extend to two years, or with fine, or with both.",
Illustrations,
"(a) A takes property belonging to Z out of Z’s possession, in good faith,",
"believing, at any time when he takes it, that the property belongs to himself. A",
"is not guilty of theft; but if A, after discovering his mistake, dishonestly",
"appropriates the property to his own use, he is guilty of an offence under this",
section.,
"(b) A, being on friendly terms with Z, goes into Z’s library in Z’s absence, and",
"takes away a book without Z’s express consent. Here, if A was under the",
impression that he had Z’s implied consent to take the book for the purpose of,
"reading it, A has not committed theft. But, if A afterwards sells the book for his",
"own benefit, he is guilty of an offence under this section.",
"(c) A and B, being joint owners of a horse, A takes the horse out of B’s",
"possession, intending to use it. Here, as A has a right to use the horse, he does",
"not dishonestly misappropriate it. But, if A sells the horse and appropriates",
"the whole proceeds to his own use, he is guilty of an offence under this section.",
Explanation I,
A dishonest misappropriation for a time only is a misappropriation with the,
meaning of this section.,
Illustration,
"A finds a Government promissory note belonging to Z, bearing a blank",
"endorsement. A, knowing that the note belongs to Z, pledges it with a banker",
"as a security for a loan, intending at a future time to restore it to Z. A has",
committed an offence under this section.,
Explanation 2,
"A person who finds property not in the possession of any other person, and",
"takes such property for the purpose of protecting if for, or of restoring it to, the",
"owner does not take or misappropriate it dishonestly, and is not guilty of an",
"offence; but he is guilty of the offence above defined, if he appropriates it to",
"his own use, when he knows or has the means of discovering the owner, or",
before he has used reasonable means to discover and give notice to the owner,
and has kept the property a reasonable time to enable the owner to claim it.,
"What are reasonable means or what is a reasonable time in such a case, is a",
question of fact.,
It is not necessary that the finder should know who is the owner of the,
"property, or that any particular person is the owner of it; it is sufficient if, at",
"the time of appropriating it, he does not believe it to be his own property, or in",
good faith believe that the real owner cannot be found.,
Illustrations,
"(a) A finds a rupee on the high road, not knowing to whom the rupee belongs.",
A picks up the rupee. Here A has not committed the offence defined in this,
section.,
"(b) A finds a letter on the road, containing a bank note. From the direction and",
contents of the letter he learns to whom the note belongs. He appropriates the,
note. He is guilty of an offence under this section.,
(c) A finds a cheque payable to bearer. He can form no conjecture as to the,
"person who has lost the cheque. But the name of the person, who has drawn",
"the cheque, appears. A knows that this person can direct him to the person in",
whose favour the cheque was drawn. A appropriates the cheque without,
attempting to discover the owner. He is guilty of an offence under this section.,
(d) A sees Z drop his purse with money in it. A picks up the purse with the,
"intention of restoring it to Z, but afterwards appropriates it to his own use. A",
has committed an offence under this section.,
"(e) A finds a purse with money, not knowing to whom it belongs; he",
"afterwards discovers that it belongs to Z, and appropriates it to his own use. A",
is guilty of an offence under this section.,
"(f) A finds a valuable ring, not knowing to whom it belongs. A sells it",
immediately without attempting to discover the owner. A is guilty of an,
offence under this section.,
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 2 years, or fine, or both—Non-cognizable—",
Bailable—Triable by any Magistrate—Compoundable by the owner of the,
property misappropriated with the permission of the court.,
Section 404. Dishonest misappropriation of property possessed by deceased person at,
the time of his death,
"Whoever dishonestly misappropriates or converts to his own use property,",
knowing that such property was in the possession of a deceased person at the,
"time of that person’s decease, and has not since been in the possession of any",
"person legally entitled to such possession, shall be punished with",
imprisonment of either description for a term which may extend to three,
"years, and shall also be liable to fine; and if the offender at the time of such",
"person’s decease was employed by him as a clerk or servant, the imprisonment",
may extend to seven years.,
Illustration,
"Z dies in possession of furniture and money. His servant A, before the money",
"comes into the possession of any person entitled to such possession,",
dishonestly misappropriates it. A has committed the offence defined in this,
section.,
CLASSIFICATION OF OFFENCE,
Punishment—Imprisonment for 3 years and fine—Non-Cognizable—Bailable—,
Triable by Magistrate of the first class—Non-compoundable.,
If by clerk or person employed by deceased:,
Punishment—Imprisonment for 7 years and fine—Non-Cognizable—Bailable—,
Triable by Magistrate of the first class—Non-compoundable.,
Section 405. Criminal breach of trust,
"Whoever, being in any manner entrusted with property, or with any dominion",
"over property, dishonestly misappropriates or converts to his own use that",
"property, or dishonestly uses or disposes of that property in violation of any",
"direction of law prescribing the mode in which such trust is to be discharged,",
"or of any legal contract, express or implied, which he has made touching the",
"discharge of such trust, or willfully suffers any other person so to do, commits",
“criminal breach of trust”.,
[Explanation [1],
1 2,
"A person, being an employer [of an establishment whether exempted under",
3,
section 17 of the Employees’ Provident funds and Miscellaneous Provisions,
"Act, 1952 (19 of 1952), or not] who deducts the employee’s contribution from",
the wages payable to the employee for credit to a Provident Fund or Family,
"Pension Fund established by any law for the time being in force, shall be",
deemed to have been entrusted with the amount of the contribution so,
deducted by him and if he makes default in the payment of such contribution,
"to said Fund in violation of the said law, shall be deemed to have dishonestly",
used the amount of the said contribution in violation of a direction of law as,
aforesaid.],
[Explanation 2,
4,
"A person, being an employer, who deducts the employees’ contribution from",
the wages payable to the employee for credit to the Employees’ State,
Insurance Fund held and administered by the Employees’ State Insurance,
"Corporation established under the Employees’ State Insurance Act, 1948 (34",
"of 1948), shall be deemed to have been entrusted with the amount of the",
contribution so deducted by him and if he makes default in the payment of,
"such contribution to the said Fund in violation of the said Act, shall be deemed",
to have dishonestly used the amount of the said contribution in violation of a,
direction of law as aforesaid.],
Illustrations,
"(a) A, being executor to the will of a deceased person, dishonestly disobeys the",
"law which directs him to divide the effects according to the will, and",
appropriate them to his own use. A has committed criminal breach of trust.,
"(b) A is a warehouse-keeper. Z gong on a Journey, entrusts his furniture to A,",
under a contract that it shall be returned on payment of a stipulated sum for,
warehouse room. A dishonestly sells the goods. A has committed criminal,
breach of trust.,
"(c) A, residing in Calcutta, is agent for Z, residing at Delhi. There is an express",
"or implied contract between A and Z, that all sums remitted by Z to A shall be",
"invested by A, according to Z’s direction. Z remits a lakh of rupees to A, with",
directions to A to invest the same in Company’s paper. A dishonestly disobeys,
the direction and employs the money in his own business. A has committed,
criminal breach of trust.,
"(d) But if A, in the last illustration, not dishonestly but in good faith, believing",
"that it will be more for Z’s advantage to hold shares in the Bank of Bengal,",
"disobeys Z’s directions, and buys shares in the Bank of Bengal, for Z, instead",
"of buying Company’s paper, here, though Z should suffer loss, and should be",
"entitled to bring a civil action against A, on account of that loss, yet A, not",
"having acted dishonestly, has not committed criminal breach of trust.",
"(e) A, a revenue-officer, is entrusted with public money and is either directed",
"by law, or bound by a contract, express or implied, with the Government, to",
pay into a certain treasury all the public money which he holds. A dishonestly,
appropriates the money. A has committed criminal breach of trust.,
"(f) A, a carrier, is entrusted by Z with Property to be carried by land or by",
water. A dishonestly misappropriates the property. A has committed criminal,
breach of trust.,
"1. Ins. by Act 40 of 1973, sec. 9 (w.e.f. 1-11-1973).",
"2. Explanation renumbered as Explanation 1 by Act 38 of 1975, sec. 9 (w.e.f. 1-",
9-1975).,
"3. Ins. by Act 33 of 1988, sec. 27 (w.e.f. 1-8-1988).",
"4.Ins. by Act 38 of 1975, sec. 9 (w.e.f. 1-9-1975).",
Section 406. Punishment for criminal breach of trust,
Whoever commits criminal breach of trust shall be punished with,
imprisonment of either description for a term which may extend to three,
"years, or with fine, or with both.",
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 3 years and fine, or both—Cognizable—Non-",
bailable—Triable by Magistrate of the first class—Compoundable by the owner,
"of the property in respect of which breach of trust has been committed, with",
the permission of the court.,
"Section 407. Criminal breach of trust by carrier, etc.",
"Whoever, being entrusted with property as a carrier, wharfinger or",
"warehouse-keeper, commits criminal breach of trust in respect of such",
"property, shall be punished with imprisonment of either description for a term",
"which may extend to seven years, and shall also be liable to fine.",
CLASSIFICATION OF OFFENCE,
Punishment—Imprisonment for 7 years and fine—Cognizable—Non-bailable—,
Triable by Magistrate of the first class—Compoundable by the owner of the,
property in respect of which the breach of trust has been committed with the,
permission of the court.,
Section 408. Criminal breach of trust by clerk or servant,
"Whoever, being a clerk or servant or employed as a clerk or servant, and being",
"in any manner entrusted in such capacity with property, or with any dominion",
"over property, commits criminal breach of trust in respect of that property,",
shall be punished with imprisonment of either description for a term which,
"may extend to seven years, and shall also be liable to fine.",
CLASSIFICATION OF OFFENCE,
Punishment—Imprisonment for 7 years and fine—Cognizable—Non-bailable—,
Triable by Magistrate of the first class—Compounded by the owner of the,
property in respect of which the breach of trust has been committed with the,
permission of the court.,
"Section 409. Criminal breach of trust by public servant, or by banker, merchant or agent",
"Whoever, being in any manner entrusted with property, or with any dominion",
over property in his capacity of a public servant or in the way of his business,
"as a banker, merchant, factor, broker, attorney or agent, commits breach of",
"trust in respect of that property, shall be punished with [imprisonment for",
1,
"life], or with imprisonment of either description for a term which may extend",
"to ten years, and shall also be liable to fine.",
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for life, or imprisonment for 10 years and fine—",
Cognizable—Non-bailable—Triable by Magistrate of the first class—Non-,
compoundable.,
"1. Subs. by Act 26 of 1955, sec. 117 and Sch., for “transportation for life” (w.e.f.",
1-1-1956).,
Section 410. Stolen Property,
"Property, the possession whereof has been transferred by theft, or by",
"extortion, or by robbery, and property which has been criminally",
misappropriated or in respect of which [***] criminal breach of trust has been,
1,
"committed, is designed as “stolen property”, [whether the transfer has been",
2,
"made, or the misappropriation or breach of trust has been committed, within",
"or without [India]]. But, if such property subsequently comes into the",
3,
"possession of a person legally entitled to the possession thereof, it then ceases",
to be stolen property.,
—–,
"1. The words “the” and “offence of” rep. by Act 12 of 1891, sec. 2 and Sch. I and",
"Act 8 of 1882, sec. 9, respectively.",
"2. Ins. by Act 8 of 1882, sec. 9.",
"3. The words “British India” have successively been subs. by the A.O. 1948, the",
"A.O. 1950 and Act 3 of 1951, sec. 3 and Sch., to read as above.",
Section 411. Dishonestly receiving stolen property,
"Whoever dishonestly receives or retains any stolen property, knowing or",
"having reason to believe the same to be stolen property, shall be punished with",
imprisonment of either description for a term which may extend to three,
"years, or with fine, or with both.",
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 3 years, or fine, or both—Cognizable—Non-",
bailable—Triable by any Magistrate—Compoundable by the owner of the,
property stolen with the permission of the court.,
STATE AMENDMENT,
Tamil Nadu:,
Section 411 shall be renumbered as sub-section (1) of that section and after,
"sub-section (1) as so renumbered, the following sub-section shall be added,",
namely:,
“(2) Whoever dishonestly receives or retains any idol or icon stolen from any,
building used as a place of worship knowing or having reason to believe the,
"same to be stolen property shall, notwithstanding anything contained in sub-",
"section (1), be punished with rigorous imprisonment which shall not be less",
than two years but which shall not be less than two thousand rupees:,
"Provided that the court may, for adequate and special reasons to be mentioned",
"in the judgment, impose a sentence of imprisonment for a term of less than",
two years.”.,
"[Vide Tamil Nadu Act 28 of 1993, sec. 3 (w.e.f. 13-7-1993)].",
Section 412. Dishonestly receiving property stolen in the commission of a dacoity,
"Whoever dishonestly receives or retains any stolen property, the possession",
whereof he knows or has reason to believe to have been transferred by the,
"commission of dacoity, or dishonestly receives from a person, whom he knows",
"or has reason to believe to belong or to have belonged to a gang of dacoity,",
"property which he knows or has reason to believe to have been stolen, shall be",
"punished with [imprisonment for life], or with rigorous imprisonment for a",
1,
"term which may extend to ten years, and shall also be liable to fine.",
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for life, or rigorous imprisonment for 10 years",
and fine—Cognizable—Non-bailable—Triable by Court of Session—Non-,
compoundable.,
"1. Subs. by Act 26 of 1955, sec. 117 and Sch., for “transportation for life” (w.e.f.",
1-1-1956).,
Section 413. Habitually dealing in stolen property,
Whoever habitually receives or deals in property which he knows or has,
"reason to believe to be stolen property, shall be punished with [imprisonment",
1,
"for life], or with imprisonment of either description for a term which may",
"extend to ten years, and shall also be liable to fine.",
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for life, or imprisonment for 10 years and fine—",
Cognizable—Non-bailable—Triable by Court of Session—Non-compoundable.,
"1. Subs. by Act 26 of 1955, sec. 117 and Sch., for “transportation for life” (w.e.f.",
1-1-1956).,
Section 414. Assisting in concealment of stolen property,
Whoever voluntarily assists in concealing or disposing of or making away with,
"property which he knows or has reason to believe to be stolen property, shall",
be punished with imprisonment of either description for a term which may,
"extend to three years, or with fine, or with both.",
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 3 years, or fine, or both—Cognizable—Non-",
bailable—Triable by any Magistrate—Compounded by the owner of the,
property stolen with the permission of the court.,
Section 415. Cheating,
"Whoever, by deceiving any person, fraudulently or dishonestly induces the",
"person so deceived to deliver any property to any person, or to consent that",
"any person shall retain any property, or intentionally induces the person so",
deceived to do or omit to do anything which he would not do or omit if he,
"were not so deceived, and which act or omission causes or is likely to cause",
"damage or harm to that person in body, mind, reputation or property, is said",
to “cheat”.,
Explanation,
A dishonest concealment of facts is deception within the meaning of this,
section.,
Illustrations,
"(a) A, by falsely pretending to be in the Civil Service, intentionally deceives Z,",
and thus dishonestly induces Z to let him have on credit goods for which he,
does not mean to pay. A cheats.,
"(b) A, by putting a counterfeit make on an article, intentionally deceives Z into",
"a belief that this article was made by a certain celebrated manufacturer, and",
thus dishonestly induces Z to buy and pay for the article. A cheats.,
"(c) A, by exhibiting to Z a false sample of an article, intentionally deceives Z",
"into believer that the article corresponds with the sample, and thereby,",
dishonestly induces Z to buy and pay for the article. A cheats.,
"(d) A, by tendering in payment for an article a bill on a house with which A",
"keeps on money, and by which A expects that the will be dishonored,",
"intentionally deceives Z, and thereby dishonestly induces Z to deliver the",
"article, intending not to pay for it. A cheats.",
"(e) A, by pledging as diamonds article which he knows are not diamonds,",
"intentionally deceives Z, and thereby dishonestly induces Z to lend money. A",
cheats.,
(f) A intentionally deceives Z into a belief that A means to repay any money,
that Z may led to him and thereby dishonestly induces Z to lend him money. A,
not intending to repay it A cheats.,
(g) A intentionally deceives Z into a belief that A means to deliver to Z a,
certain quantity of indigo plant which he does not intend to deliver and,
thereby dishonestly induces Z to advance money upon the faith of such,
"deliver. A cheats; but if A, at the of obtaining the money, intends to deliver the",
"indigo plant, and afterwards breaks his contract and does not deliver it, he",
"does not cheat, but is liable only to a civil action for breach of contract.",
(h) A intentionally deceives Z into a belief that A has performed A’s part of a,
"contract made with Z, which he has not performed, and thereby dishonestly",
induces Z to pay money. A cheats.,
"(i) A sells and coveys an estate to B.A, knowing that in consequence of such",
"sale he has no right to the property, sells or mortgages the same to Z, without",
"disclosing the fact of the previous sale and conveyance to B, and receives the",
purchase or mortgage money for Z. A cheats.,
Section 416. Cheating by personation,
A person is said to “cheat by personation” if he cheats by pretending to be,
"some other person, or by knowingly substituting one person for another, or",
representing that he or any other person is a person other than he or such,
other person really is.,
Explanation,
The offence is committed whether the individual personated is a real or,
imaginary person.,
Illustration,
(a) A cheats by pretending to be a certain rich banker of the same name. A,
cheats by personation.,
"(b) A cheats by pretending to be B, a person who is deceased. A cheats by",
personation.,
Section 417. Punishment for cheating,
Whoever cheats shall be punished with imprisonment of either description for,
"a term which may extend to one year, or with fine, or with both.",
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 1 year, or fine, or both—Non-cognizable—",
Bailable—Triable by any Magistrate—Compoundable by the person cheated,
with the permission of the court.,
Section 418. Cheating with knowledge that wrongful loss may ensue to person whose,
interest offender is bound to protect,
Whoever cheats with the knowledge that he is likely thereby to cause wrongful,
"loss to a person whose interest in the transaction to which the cheating relates,",
"he was bound, either by law, or by a legal contract, to protect, shall be",
punished with imprisonment of either description for a term which may,
"extend to three years, or with fine, or with both.",
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 3 years, or fine, or both—Non-cognizable—",
Bailable—Triable by any Magistrate—Compoundable by the person cheated,
with the permission of the court.,
Section 419. Punishment for cheating by personation,
Whoever cheats by personation shall be punished with imprisonment of either,
"description for a term which may extend to three years, or with fine, or with",
both.,
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 3 years, or fine, or both—Cognizable—",
Bailable—Triable by any Magistrate—Compoundable by the person cheated,
with the permission of the court.,
Section 420. Cheating and dishonestly inducing delivery of property,
Whoever cheats and thereby dishonestly induces the person deceived any,
"property to any person, or to make, alter or destroy the whole or any part of a",
"valuable security, or anything which is signed or sealed, and which is capable",
"of being converted into a valuable security, shall be punished with",
imprisonment of either description for a term which may extend to seven,
"years, and shall also be liable to fine.",
CLASSIFICATION OF OFFENCE,
Punishment—Imprisonment for 7 years and fine—Cognizable—Non-bailable—,
Triable by Magistrate of the first class—Compoundable by the person cheated,
with the permission of the court.,
Section 421. Dishonest or fraudulent removal or concealment of property to prevent,
distribution among creditors,
"Whoever dishonestly or fraudulently removes, conceals or delivers to any",
"person, or transfer or causes to be transferred to any person, without adequate",
"consideration, any property, intending thereby to prevent, or knowing it to be",
"likely that he will thereby prevent, the distribution of that property according",
"to law among his creditors or the creditors of any other person, shall be",
punished with imprisonment of either description for a term which may,
"extend to two years, or with fine, or with both.",
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 2 years, or fine, or both—Non-cognizable—",
Bailable—Triable by any Magistrate—Compoundable by the creditor who are,
affected thereby with the permission of the court.,
Section 422. Dishonestly or fraudulently preventing debt being available for creditors,
Whoever dishonestly or fraudulently prevents any debt or demand due to,
himself or to any other person from being made available according to law for,
"payment of his debts or the debts of such other person, shall be punished with",
"imprisonment of either description for a term which may extend to two years,",
"or with fine, or with both.",
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 2 years, or fine, or both—Non-cognizable—",
Bailable—Triable by any Magistrate—Compoundable by the creditors who are,
affected thereby with the permission of the court.,
Section 423. Dishonest or fraudulent execution of deed of transfer containing false,
statement of consideration,
"Whoever dishonestly or fraudulently signs, executes or becomes a party to any",
deed or instrument which purports to transfer or subjects to any charge any,
"property , or any interest therein, and which contains any false statement",
"relating to the consideration for such transfer or charge, or relating to the",
"person or persons for whose use or benefit it is really intended to operate,",
shall be punished with imprisonment of either description for a term which,
"may extend to two years, or with fine , or with both.",
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 2 years, or fine, or both—Non-cognizable—",
Bailable—Triable by any Magistrate—Compoundable by the person affected,
thereby with the permission of the court.,
Section 424. Dishonest or fraudulent removal or concealment of property,
Whoever dishonestly or fraudulently conceals or removes any property of,
"himself or any other person, or dishonestly or fraudulently assists in the",
"concealment or removal thereof, or dishonestly releases any demand or claim",
"to which he is entitled, shall be punished with imprisonment of either",
"description for a term which may extend to two years, or with fine, or with",
both.,
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 2 years, or fine, or both—Non-cognizable—",
Bailable—Triable by any Magistrate—Compoundable by the person affected,
thereby with the permission of the court.,
Section 425. Mischief,
"Whoever with intent to cause, or knowing that he is likely to cause, wrongful",
"loss or damage to the public or to any person, cause the destruction of any",
"property, or any such change in any property or in the situation thereof as",
"destroys or diminishes its value or utility, or affects it injuriously, commits",
“mischief”.,
Explanation 1,
It is not essential to the offence of mischief that the offender should intend to,
cause loss or damage to the owner of the property injured or destroyed. It is,
"sufficient if he intends to cause, or knows that he is likely to cause, wrongful",
"loss or damage to any person by injuring any property, whether it belongs to",
that person or not.,
Explanation 2,
Mischief may be committed by an act affecting property belonging to the,
"person who commits the act, or to that person and others jointly.",
Illustrations,
(a) A voluntarily burns a valuable security belonging to Z intending to cause,
wrongful loss to Z. A has committed mischief.,
(b) A introduces water into an ice-house belonging to Z and thus causes the ice,
"to melt, intending wrongful loss to Z. A has committed mischief.",
"(c) A voluntarily throws into a river a ring belonging to Z, with the intention of",
thereby causing wrongful loss to Z. A has committed mischief.,
"(d) A, knowing that his effects are about to be taken in execution in order to",
"satisfy a debt due from him to Z, destroys those effects, with the intention of",
"thereby preventing Z from obtaining satisfaction of the debt, and of thus",
causing damage to Z. A has committed mischief.,
"(e) A, having insured a ship, voluntarily causes the same to be cast away, with",
the intention of causing damage to the under-writers. A has committed,
mischief.,
"(f) A causes a ship to be cast away, intending thereby to cause damage to Z",
who has lent money on bottomry on the ship. A has committed mischief.,
"(g) A, having joint property with Z in a horse, shoots the horse, intending",
thereby to cause wrongful loss to Z. A has committed mischief.,
"(h) A causes cattle to enter upon a field belonging to Z, intending to cause and",
knowing that he is likely to cause damage to Z’s crop. A has committed,
mischief.,
Section 426. Punished for mischief,
Whoever commits mischief shall be punished with imprisonment of either,
"description for a term which may extend to three months, or with fine, or with",
both.,
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 3 months, or fine, or both—Non-cognizable—",
Bailable—Triable by any Magistrate—Compoundable by the person to whom,
the loss or damage is caused.,
Section 427. Mischief causing damage to the amount of fifty rupees,
Whoever commits mischief and thereby causes loss or damage to the amount,
"of fifty rupees or upwards, shall be punished with imprisonment of either",
"description for a term which may extend to two years, or with fine, or with",
both.,
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 2 years, or fine, or both—Non-cognizable—",
Bailable—Triable by any Magistrate—Compoundable by the person to whom,
the loss or damage is caused.,
Section 428. Mischief by killing or maiming animal of the value of ten rupees,
"Whoever commits mischief by killing, poisoning, maiming or rendering",
"useless any animal or animals of the value of ten rupees or upwards, shall be",
punished with imprisonment of either description for a term which may,
"extend to two years, or with fine, or with both.",
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 2 years, or fine, or both—Cognizable—",
Bailable—Triable by any Magistrate—Compoundable by the owner of the,
animal with the permission of the court.,
"Section 429. Mischief by killing or maiming cattle, etc., of any value or any animal of the",
value of fifty rupees,
"Whoever commits mischief by killing, poisoning, maiming or rendering",
"useless, any elephant, camel, horse, mule, buffalo, bull, cow or ox, whatever",
"may be the value thereof, or any other animal of the value of fifty rupees or",
"upwards, shall be punished with imprisonment of either description for a term",
"which may extend to five years, or with fine, or with both.",
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 5 years, or fine, or both—Cognizable—",
Bailable—Triable by any Magistrate of the first class—Compoundable by the,
owner of the cattle or animal with the permission of the court.,
Section 430. Mischief by injury to works of irrigation or by wrongfully diverting water,
"Whoever commits mischief by doing any act which causes, or which he knows",
"to be likely to cause, a diminution of the supply of the water for agricultural",
"purposes, or for food or drink for human beings or for animals which are",
"property, or for cleanliness or for carrying on any manufacture, shall be",
punished with imprisonment of either description far a term which may,
"extend to five years, or with fine, or with both.",
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 5 years, or fine, or both—Cognizable—",
Bailable—Triable by Magistrate of the first class—Compoundable by the,
person to whom the loss or damage is caused with the permission of the court.,
"Section 431. Mischief by injury to public road, bridge, river or channel",
Whoever commits mischief by doing any act which renders or which he knows,
"to be likely to render any public road, bridge, navigable river or navigable",
"channel, natural or artificial, impassable or less safe for traveling or conveying",
"property, shall be punished with imprisonment of either description for a term",
"which may extend to five years, or with fine, or with both.",
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 5 years, or fine, or both—Cognizable—",
Bailable—Triable by Magistrate of the first class—Non-compoundable.,
Section 432. Mischief by causing inundation or obstruction to public drainage attended,
with damage,
Whoever commits mischief by doing any act which causes or which he knows,
to be likely to cause an inundation or an obstruction to any public drainage,
"attended with injury or damage, shall be punished with imprisonment of",
"either description for term which may extend to five years, or with fine, or",
with both.,
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 5 years, or fine, or both—Cognizable—",
Bailable—Triable by Magistrate of the first class—Non-compoundable.,
"Section 433. Mischief by destroying, moving or rendering less useful a light-house or sea-",
mark,
Whoever commits mischief by destroying or moving any light-house or other,
light used as a sea-mark or any sea-mark or buoy or other thing placed as a,
"guide for navigators, or by any act which renders any such light-house, sea-",
"mark, buoy or other such thing as aforesaid less useful as a guide for",
"navigators, shall be punished with imprisonment of either description for a",
"term which may extend to seven years, or with fine, or with both.",
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 7 years, or fine, or both—Cognizable—",
Bailable—Triable by Magistrate of the first class—Non-compoundable.,
"Section 434. Mischief by destroying or moving, etc., a land- mark fixed by public",
authority,
Whoever commits mischief by destroying or moving any land-mark fixed by,
"the authority of a public servant, or by any act which renders such land-mark",
"less useful as such, shall be punished with imprisonment of either description",
"for a term which may extend to one years, or with fine, or with both.",
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 1 year, or fine, or both—Non-cognizable—",
Bailable—Triable by any Magistrate—Non-compoundable.,
Section 435. Mischief by fire or explosive substance with intent to cause damage to,
amount of one hundred or (in case of agricultural produce) ten rupees,
Whoever commits mischief by fire or any explosive substance intending to,
"cause, or knowing it to be likely that he will thereby cause, damage to any",
property to the amount of one hundred rupees or upwards [or(where the,
1,
"property is agricultural produce) ten rupees or upwards], shall be punished",
with imprisonment of either description for a term which may extend to seven,
"years, and shall also be liable to fine.",
CLASSIFICATION OF OFFENCE,
Punishment—Imprisonment for 7 years and fine—Cognizable—Bailable—,
Triable by Magistrate of the first class—Non-compoundable.,
–,
"1. Ins. by Act 8 of 1882, sec. 10.",
"Section 436. Mischief by fire or explosive substance with intent to destroy house, etc.",
"Whoever commits mischief by fire or any explosive substance, intending to",
"cause, or knowing it to be likely that he will thereby cause, the destruction of",
any building which is ordinarily used as a place of worship or as a human,
"dwelling or as a place for the custody of property, shall be punished",
"with [imprisonment for life], or with imprisonment of either description for a",
1,
"term which may extend to ten years, and shall also be liable to fine.",
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for life, or imprisonment for 10 years and fine—",
Cognizable—Non-bailable—Triable by Court of Session—Non-compoundable.,
–,
"1. Subs. by Act 26 of 1955, sec. 117 and Sch., for “transportation for life” (w.e.f.",
1-1-1956).,
Section 437. Mischief with intent to destroy or make unsafe a decked vessel or one of,
twenty tons burden,
Whoever commits mischief to any decked vessel or any vessel of a burden of,
"twenty tons or upwards, intending to destroy or render unsafe, or knowing it",
"to be likely that he will thereby destroy or render unsafe, that vessel, shall be",
punished with imprisonment of either description for a term which may,
"extend to ten years, and shall also be liable to fine.",
CLASSIFICATION OF OFFENCE,
Punishment—Imprisonment for 10 years and fine—Cognizable—Non-bailable,
—Triable by Court of Session—Non-compoundable.,
Section 438. Punishment for the mischief described in section 437 committed by fire or,
explosive substance,
"Whoever commits, or attempts to commit, by fire or any explosive substance,",
"such mischief as is described in the last preceding section, shall be punished",
"with [imprisonment for life], or with imprisonment or either description for a",
1,
"term which may extend to ten years, and shall also be liable to fine.",
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for life, or imprisonment for 10 years and fine—",
Cognizable—Non-bailable—Triable by Court of Session—Non-compoundable.,
"1. Subs. by Act 26 of 1955, sec. 117 and Sch., for “transportation for life” (w.e.f.",
1-1-1956).,
Section 439. Punishment for intentionally running vessel aground or ashore with intent,
"to commit theft, etc",
"Whoever intentionally runs any vessel aground or ashore, intending to commit",
theft of any property contained therein or to dishonestly misappropriate any,
"such property, or with intent that such theft or misappropriation of property",
"may be committed, shall be punished with imprisonment of either description",
"for a term which may extend to ten years, and shall also be liable to fine.",
CLASSIFICATION OF OFFENCE,
Punishment—Imprisonment for 10 years and fine—Cognizable—Non-bailable,
—Triable by Court of Session—Non-compoundable.,
Section 440. Mischief committed after preparation made for causing death or hurt,
Whoever commits mischief having made preparation for causing to any,
"person death, or hurt, or wrongful restraint, or fear of death or of hurt, or of",
"wrongful restraint, shall be punished with imprisonment of either description",
for a term which may extend to five years and shall also be liable to fine.,
CLASSIFICATION OF OFFENCE,
Punishment—Imprisonment for 5 years and fine—Cognizable—Bailable—,
Triable by Magistrate of the first class—Non-compoundable.,
Section 441. Criminal trespass,
Whoever enters into or upon property in the possession of another with intent,
"to commit an offence or to intimidate, insult or annoy any person in",
"possession of such property,",
"or having lawfully entered into or upon such property, unlawfully remains",
"there with intent thereby to intimidate, insult or annoy any such person, or",
"with intent to commit an offence, is said to commit “criminal trespass”.",
STATE AMENDMENT,
Orissa,
"For section 441, the following section shall be substituted, namely:",
“441. Criminal Trespass.—Whoever enters into or upon property in possession,
"of another with intent to commit an offence or to intimidate, insult or annoy",
"any person in possession of such property,",
"or, having lawfully entered into or upon such property, unlawfully remains",
"there with intent thereby to intimidate, insult or annoy any such person or",
"with intent to commit an offence,",
"or having lawfully entered into or upon such property, remains there with the",
intention of taking unauthorised possession or making unauthorised use of,
"such property and fails to withdraw such property or its possession or use,",
"when called upon to do so by that another person by notice in writing, duly",
"served on him, is said to have commit “criminal trespass.“",
"[Vide Orissa Act 22 of 1986, sec. 2 (w.e.f. 6-12-1986)].",
Uttar Pradesh,
"For section 441, substitute the following:",
“441. Criminal Trespass.—Whoever enters into or upon property in possession,
"of another with intent to commit an offence or to intimidate, insult or annoy",
"and person in possession of such property, or having lawfully entered into or",
"upon such property, unlawfully remains therewith intent thereby to",
"intimidate, insult or annoy any such person, or with intent to commit an",
"offence,",
"or, having entered into or upon such property, whether before or after the",
"coming into force of the Criminal Law (U.P. Amendment) Act, 1961, with the",
intention of taking unauthorised possession or making unauthorised use of,
"such property fails to withdraw from such property or its possession or use,",
"when called upon to do so by that another person by notice in writing, duly",
"served upon him, by the date specified in the notice,",
is said to commit “criminal trespass”.,
"[Vide Uttar Pradesh Act 31 of 1961, sec. 2 (w.e.f. 13-11-1961)].",
Section 442. House trespass,
Whoever commits criminal trespass by entering into or remaining in any,
"building, tent or vessel used as a human dwelling or any building used as a",
"place for worship, or as a place for the custody of property, is said to commit",
“house-trespass”.,
Explanation,
The introduction of any part of the criminal trespasser’s body is entering,
sufficient to constitute house-trespass.,
Section 443. Lurking house-trespass,
Whoever commits house-trespass having taken precautions to conceal such,
house-trespass from some person who has a right to exclude or eject the,
"trespasser from the building, tent or vessel which is the subject of the trespass,",
is said to commit “lurking house-trespass”.,
Section 444. Lurking house-trespass by night,
"Whoever commits lurking house-trespass after sunset and before sunrise, is",
said to commit “lurking house-trespass by night”.,
Section 445. Housing breaking,
A person is said to commit “house-breaking” who commits house-trespass if,
he effects his entrance into the house or any part of it in any of the six ways,
"hereinafter described; or if, being in the house or any part of it for the purpose",
"of committing an offence, or, having committed an offence therein, he quits",
"the house or any part of it in any of such six ways, that is to say",
"First.—If he enters or quits through a passage by himself, or by any abettor of",
"the house-trespass, in order to the committing of the house-trespass.",
Secondly.—If he enters or quits through any passage not intended by any,
"person, other than himself or an abettor of the offence, for human entrance; or",
through any passage to which he has obtained access by scaling or climbing,
over any wall or building.,
Thirdly.—If he enters or quits through any passage which he or any abettor of,
"the house-trespass has opened, in order to the committing of the house-",
trespass by any means by which that passage was not intended by the occupier,
of the house to be opened.,
Fourthly.—If he enters or quits by opening any lock in order to the committing,
"of the house-trespass, or in order to the quitting of the house after a house-",
trespass.,
Fifthly.—If he effects his entrance or departure by using criminal force or,
committing an assault or by threatening any person with assault.,
Sixthly.—If he enters or quits by any passage which he knows to have been,
"fastened against such entrance or departure, and to have been unfastened by",
himself or by an abettor of the house-trespass.,
Explanation,
"Any out-house or building occupied with a house, and between which and",
"such house there is an immediate internal communication, is part of the house",
within the meaning of this section.,
Illustrations,
"(a) A commits house-trespass by making a hole through the wall of Z’s house,",
and putting his hand through the aperture. This is house-breaking.,
(b) A commits house-trespass by creeping into a ship at a port-hole between,
decks. This is house-breaking.,
(c) A commits house-trespass by entering Z’s house through a window. This is,
house-breaking.,
"(d) A commits house-trespass by entering Z’s house through the door, having",
opened a door which was fastened. This is house-breaking.,
"(e) A commits house-trespass by entering Z’s house through the door, having",
lifted a latch by putting a wire through a hole in the door. This is house-,
breaking.,
"(f) A finds the key of Z’s house door, which Z had lost, and commits house-",
"trespass by entering Z’s house, having opened the door with that key. This is",
house-breaking.,
"(g) Z is standing in his doorway. A forces a passage by knocking Z down, and",
commits house-trespass by entering the house. This is house-breaking.,
"(h) Z, the door-keeper of Y, is standing in Y’s doorway. A commits house-",
"trespass by entering the house, having deterred Z from opposing him by",
threatening to beat him. This is house-breaking.,
Section 446. House-breaking by night,
"Whoever commits house-breaking after sunset and before sunrise, is said to",
commit “house-breaking by night”.,
Section 447. Punishment for criminal trespass,
Whoever commits criminal trespass shall be punished with imprisonment of,
"either description for a term which may extend to three months, with fine or",
"which may extend to five hundred rupees, or with both.",
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 3 months, or fine of 500 rupees, or both—",
Cognizable—Bailable—Triable by any Magistrate—Compoundable by the,
person in possession of the property trespassed upon.,
Section 448. Punishment for house-trespass,
Whoever commits house-trespass shall be punished with imprisonment of,
"either description for a term which may extend to one year, or with fine or",
"which may extend to one thousand rupees, or with both.",
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for one year, or fine of 1,000 rupees, or both—",
Cognizable—Bailable—Triable by any Magistrate—Compoundable by the,
person in possession of the property trespassed upon.,
Section 449. House-trespass in order to commit offence punishable with death,
Whoever commits house-trespass in order to the committing of any offence,
"punishable with death, shall be punishable with [imprisonment for life], or",
1,
"with rigorous imprisonment for a term not exceeding ten years, and shall also",
be liable to fine.,
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for life, or rigorous imprisonment for 10 years",
and fine—Cognizable—Non-bailable—Triable by Court of Session—Non-,
compoundable.,
"1. Subs. by Act 26 of 1955, sec. 117 and Sch., for “transportation for life” (w.e.f.",
1-1-1956).,
Section 450. House-trespass in order to commit offence punishable with imprisonment,
for life,
Whoever commits house-trespass in order to the committing of any offence,
"punishable with [imprisonment for life], shall be punished with",
1,
"imprisonment of either description for a term not exceeding ten years, and",
shall also be liable to fine.,
CLASSIFICATION OF OFFENCE,
Punishment—Imprisonment for 10 years and fine—Cognizable—Non-bailable,
—Triable by Court of Session—Non-compoundable.,
"1. Subs. by Act 26 of 1955, sec. 117 and Sch., for “transportation for life” (w.e.f.",
1-1-1956).,
Section 451. House-trespass in order to commit offence punishable with imprisonment,
Whoever commits house-trespass in order to the committing of any offence,
"punishable with imprisonment, shall be punished with imprisonment of either",
"description for a term which may extend to two years, and shall also be liable",
"to fine; and if the offence intended to be committed is theft, the term of the",
imprisonment may be extended to seven years.,
CLASSIFICATION OF OFFENCE,
Para I,
Punishment—Imprisonment for 2 years and fine—Cognizable—Bailable—,
Triable by any Magistrate.,
Para II,
Punishment—Imprisonment for 7 years and fine—Cognizable—Non-bailable—,
Triable by any Magistrate—Compoundable by the person in possession of the,
house trespassed upon with the permission of the court.,
"Section 452. House-trespass after preparation for hurt, assault or wrongful restraint",
"Whoever commits house-trespass, having made preparation for causing hurt",
"to any person or for assaulting any person, or for wrongfully restraining any",
"person, or for putting any person in fear of hurt, or of assault, or of wrongful",
"restraint, shall be punished with imprisonment of either description for a term",
"which may extend to seven years, and shall also be liable to fine.",
CLASSIFICATION OF OFFENCE,
Punishment—Imprisonment for 7 years and fine—Cognizable—Non-bailable—,
Triable by any Magistrate—Non-compoundable.,
Section 453. Punishment for lurking house-trespass or house-breaking,
"Whoever commits lurking house-trespass or house-breaking, shall be",
punished with imprisonment of either description for a term which may,
"extend to two years, and shall also be liable to fine.",
CLASSIFICATION OF OFFENCE,
Punishment—Imprisonment for 2 years and fine—Cognizable—Non-bailable—,
Triable by any Magistrate—Non-compoundable.,
Section 454. Lurking house-trespass or house-breaking in order to commit offence,
punishable with imprisonment,
"Whoever commits lurking house-trespass or house-breaking, in order to the",
"committing of any offence punishable with imprisonment, shall be punished",
with imprisonment of either description for a term which may extend to three,
"years, and shall also be liable to fine ; and if the offence intended to be",
"committed is theft, the term of the imprisonment may be extended to ten",
years.,
CLASSIFICATION OF OFFENCE,
Para I,
Punishment—Imprisonment for 3 years and fine—Cognizable—Non-bailable—,
Triable by any Magistrate—Non-compoundable.,
Para II,
Punishment—Imprisonment for 10 years and fine—Cognizable—Non-bailable,
—Triable by Magistrate of the first class—Non-compounded.,
STATE AMENDMENT,
Tamil Nadu,
Section 454 shall be renumbered as sub-section (1) of that section and after,
"sub-section (1) as so renumbered, the following sub-section shall be added,",
namely:,
“(2) Whoever commits lurking house-trespass or house-breaking in any,
"building used as a place of worship, in order to the committing of the offence",
"of theft of any idol or icon from such building, shall notwithstanding anything",
"contained in sub-section (1), be punished with rigorous imprisonment which",
shall not be less than three years but which may extend to ten years and with,
fine which shall not be less than five thousand rupees:,
"Provided that the court may, for adequate and special reasons to be mentioned",
"in the judgment, impose a sentence of imprisonment for a term of less than",
three years.”,
"[Vide Tamil Nadu Act 28 of 1993, sec. 4 (w.e.f. 13-7-1993)].",
"Section 455. Lurking house-trespass or house-breaking after preparation for hurt,",
assault or wrongful restraint,
"Whoever commits lurking house-trespass, or house-breaking, having made",
"preparation for causing hurt to any person, or for assaulting any person, or for",
"wrongfully restraining any person, or for putting any person in fear of hurt or",
"of assault or of wrongful restraint, shall be punished with imprisonment of",
"either description for a term which may extend to ten years, and shall also be",
liable to fine.,
CLASSIFICATION OF OFFENCE,
Punishment—Imprisonment for 10 years and fine—Cognizable—Non-bailable,
—Triable by Magistrate of the first class—Non-compoundable.,
Section 456. Punishment for lurking house-trespass or house-breaking by night,
"Whoever commits lurking house-trespass by night, or house-breaking by",
"night, shall be punished with imprisonment of either description for a term",
"which may extend to three years, and shall also be liable to fine.",
CLASSIFICATION OF OFFENCE,
Punishment—Imprisonment for 3 years and fine—Cognizable—Non-bailable—,
Triable by any Magistrate—Non-compoundable.,
Section 457. Lurking house trespass or house-breaking by night in order to commit,
offence punishable with imprisonment,
"Whoever commits lurking house-trespass by night, or house-breaking by",
"night, in order to the committing of any offence punishable with",
"imprisonment, shall be punished with imprisonment of either description for",
"a term which may extend to five years, and shall also be liable to fine; and, if",
"the offence intended to be committed is theft, the term of the imprisonment",
may be extended to fourteen years.,
CLASSIFICATION OF OFFENCE,
Para I,
Punishment—Imprisonment for 5 years and fine—Cognizable—Non-bailable—,
Triable by Magistrate of the first class—Non-compoundable.,
Para II,
Punishment—Imprisonment for 14 years and fine—Cognizable—Non-bailable,
—Triable by Magistrate of the first class.,
STATE AMENDMENT,
Tamil Nadu,
Section 457 shall be renumbered as sub-section (1) of that section and after,
"sub-section (1) as so renumbered, the following sub-section shall be added,",
namely:,
“(2) Whoever commits lurking house-trespass by night or house-breaking by,
"night in any building used as a place of worship, in order to the committing of",
"the offence of theft of any idol or icon from such building, shall,",
"notwithstanding anything contained in sub-section (1), be punished with",
rigorous imprisonment which shall not be less than three years but which may,
extend to fourteen years and with fine which shall not be less than five,
thousand rupees:,
"Provided that the court may, for adequate and special reasons to be mentioned",
"in the judgment, impose a sentence of imprisonment for a term of less than",
three years.”,
"[Vide Tamil Nadu Act 28 of 1993, sec. 5 (w.e.f. 13-7-1993)].",
Uttar Pradesh,
Section 457 shall be renumbered as sub-section (1) of that section and after,
"sub section (1) as so renumbered, the following sub-section shall be added",
namely,
“(2) Whoever commits lurking house trespass by night or house breaking by,
night in any building used as a place of worship in order to the committing of,
the offence of theft of any idol or icon from such buildings shall,
notwithstanding any thing contained in sub-section (1) be punished with,
rigorous imprisonment which shall not be less than three years but which may,
extend to fourteen years and with fine which shall not be less than five,
thousand rupees:,
"Provided that the court may, for adequate and special reasons to be mentioned",
"in the judgment, impose a sentence of imprisonment for a term of less than",
three years.”,
"[Vide Uttar Pradesh Act 24 of 1995, sec. 11].",
Section 458. Lurking house-trespass or house-breaking by night after preparation for,
"hurt, assault, or wrongful restraint",
"Whoever commits lurking house-trespass by night, or house-breaking by",
"night, having made preparation for causing hurt to any person or for",
"assaulting any person, or for wrongfully restraining any person, or for putting",
"any person in fear of hurt, or of assault, or of wrongful restraint, shall be",
punished with imprisonment of either description for a term which may,
"extend to fourteen years, and shall also be liable to fine.",
CLASSIFICATION OF OFFENCE,
Punishment—Imprisonment for 14 years and fine—Cognizable—Non-bailable,
—Triable by Magistrate of the first class—Non-compoundable.,
Section 459. Grievous hurt caused whilst committing lurking house trespass or house-,
breaking,
"Whoever, whilst committing lurking house-trespass or house-breaking, causes",
grievous hurt to any person or attempts to cause death or grievous hurt to any,
"person, shall be punished with [imprisonment for life], or imprisonment of",
1,
"either description for a term which may extend to ten years, and shall also be",
liable to fine.,
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for life, or imprisonment for 10 years and fine—",
Cognizable—Non-bailable—Triable by Court of Session—Non-compoundable.,
–,
"1. Subs. by Act 26 of 1955, sec. 117 and Sch., for “transportation for life” (w.e.f.",
1-1-1956).,
Section 460. All persons jointly concerned in lurking house-trespass or house-breaking,
by night punishable where death or grievous hurt caused by one of them,
"If, at the time of the committing of lurking house-trespass by night or house-",
"breaking by night, any person guilty of such offence shall voluntarily cause or",
"attempt to cause death or grievous hurt to any person, every person jointly",
concerned in committing such lurking house-trespass by night or house-,
"breaking by night, shall be punished with [imprisonment for life], or with",
1,
"imprisonment of either description for a term which may extend to ten years,",
and shall also be liable to fine.,
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for life, or imprisonment for 10 years and fine—",
Cognizable—Non-bailable—Triable by Court of Session—Non-compoundable.,
–,
"1. Subs. by Act 26 of 1955, sec. 117 and Sch., for “transportation for life” (w.e.f.",
1-1-1956).,
Section 461. Dishonestly breaking open receptacle containing property,
"Whoever dishonestly or with intent to commit mischief, breaks open or",
unfastens any closed receptacle which contains or which be believes to contain,
"property, shall be punished with imprisonment of either description for a term",
"which may extend to two years, or with fine, or with both.",
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 2 years, or fine, or both—Cognizable—",
Bailable—Triable by any Magistrate—Non-compoundable.,
Section 462. Punishment for same offence when committed by person entrusted with,
custody,
"Whoever, being entrusted with any closed receptacle which contains or which",
"he believes to contain property, without having authority to open the same,",
"dishonestly, or with intent to commit mischief, breaks open or unfastens that",
"receptacle, shall be punished with imprisonment of either description for a",
"term which may extend to three years, or with fine, or with both.",
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 3 years, or fine, or both—Cognizable—",
Bailable—Triable by any Magistrate—Non-compoundable.,
Section 463. Forgery,
[Whoever makes any false documents or false electronic record or part of a,
1,
"document or electronic record, with intent to cause damage or injury], to the",
"public or to any person, or to support any claim or title, or to cause any person",
"to part with property, or to enter into any express or implied contract, or with",
"intent to commit fraud or that fraud may be committed, commits forgery.",
—–,
"1. Subs. by Act 21 of 2000, sec. 91 and Sch. I, for certain words (w.e.f. 17-10-",
2000).,
Section 464. Making a false document,
[A person is said to make a false document or false electronic record,
1,
First—Who dishonestly or fradulently,
"(a) makes, signs, seals or executes a document or part of a document;",
(b) makes or transmits any electronic record or part of any electronic record;,
(c) affixes any electronic signature on any electronic record;,
3,
(d) makes any mark denoting the execution of a document or the authenticity,
"of the electronic signature,",
3,
with the intention of causing it to be believed that such document or part of,
"document, electronic record or electronic signature was made, signed, sealed,",
"executed, transmitted or affixed by or by the authority of a person by whom or",
"by whose authority he knows that it was not made, signed, sealed, executed or",
affixed; or,
"Secondly—Who, without lawful authority, dishonestly or fraudulently, by",
"cancellation or otherwise, alters a document or an electronic record in any",
"material part thereof, after it has been made, executed or affixed",
"with electronic signature either by himself or by any other person, whether",
3,
such person be living or dead at the time of such alteration; or,
"Thirdly—Who dishonestly or fraudulently causes any person to sign, seal,",
execute or alter a document or an electronic record or to affix his electronic,
3,
signature on any electronic record knowing that such person by reason of,
"unsoundness of mind or intoxication cannot, or that by reason of deception",
"practised upon him, he does not know the contents of the document or",
electronic record or the nature of the alteration.],
Illustrations,
"(a) A has a letter of credit upon B for rupees 10,000 written by Z. A, in order to",
"defraud B, adds a cipher to the 10,000, and makes the sum 1,00,000",
intending that it may be believed by B that Z so wrote the letter. A has,
committed forgery.,
"(b) A, without Z’s authority, affixes Z’s seal to a document purporting to be a",
"conveyance of an estate from Z to A, with the intention of selling the estate to",
"B, and thereby of obtaining from B the purchase-money. A has committed",
forgery.,
"(c) A picks up a cheque on a banker signed by B, payable to bearer, but",
without any sum having been inserted in the cheque. A fraudulently fills up,
the cheque by inserting the sum of ten thousand rupees. A commits forgery.,
"(d) A leaves with B, his agent, a cheque on a banker, signed by A, without",
inserting the sum payable and authorizes B to fill up the cheque by inserting a,
sum not exceeding ten thousand rupees for the purpose of making certain,
payment. B fraudulently fills up the cheque by inserting the sum of twenty,
thousand rupees. B commits forgery.,
(e) A draws a bill of exchange on himself in the name of B without B’s,
"authority, intending to discount it as a genuine bill with a banker and",
"intending to take up the bill on its maturity. Here, as A draws the bill with",
intent to deceive the banker by leading him to suppose that he had the security,
"of B, and thereby to discount the bill, A is guilty of forgery.",
(f) Z’s will contains the these words—“I direct that all my remaining property,
"be equally divided between A, B and C.” A dishonestly scratches out B’s name,",
intending that it may be believed that the whole was left to himself and C. A,
has committed forgery.,
(g) A endorses a Government promissory note and makes it payable to Z or his,
order by writing on the bill the words “Pay to Z or his order” and signing the,
"endorsement. B dishonestly erases the words “Pay to Z or his order”, and",
thereby converts the special endorsement into a blank endorsement. B,
commits forgery.,
"(h) A sells and conveys an estate to Z. A afterwards, in order to defraud Z of",
"his estate, executes a conveyance of the same estate to B, dated six months",
"earlier than the date of the conveyance to Z, intending it to be believed that he",
had conveyed the estate to B before he conveyed it to Z. A has committed,
forgery.,
(i) Z dictates his will to A. A intentionally writes down a different legatee from,
"the legatee named by Z, and by representing to Z that he has prepared the will",
"according to his instructions, induces Z to sign the will. A has committed",
forgery.,
"(j) A writes a letter and signs it with B’s name without B’s authority, certifying",
that A is a man of good character and in distressed circumstances from,
"unforeseen misfortune, intending by means of such letter to obtain alms from",
"Z and other persons. Here, as A made a false document in order to induce Z to",
part with property. A has committed forgery.,
(k) A without B’s authority writes a letter and signs it in B’s name certifying to,
"A’s character, intending thereby to obtain employment under Z. A has",
committed forgery in as much as he intended to deceive Z by the forged,
"certificate, and thereby to induce Z to enter into an express or implied contract",
for service.,
Explanation 1,
A man’s signature of his own name may amount to forgery.,
Illustrations,
"(a) A signs his own name to a bill of exchange, intending that it may be",
believed that the bill was drawn by another person of the same name. A has,
committed forgery.,
(b) A writes the word “accepted” on a piece of paper and signs it with Z’s,
"name, in order that B may afterwards write on the paper a bill of exchange",
"drawn by B upon Z, and negotiate the bill as though it had been accepted by Z.",
"A is guilty of forgery; and if B, knowing the fact, draws the bill upon the paper",
"pursuant to A’s intention, B is also guilty of forgery.",
(c) A picks up a bill of exchange payable to the order of a different person of,
"the same name. A endorses the bill in his own name, intending to cause it to",
be believed that it was endorsed by the person whose order it was payable;,
here A has committed forgery.,
"(d) A purchases an estate sold under execution of a decree against B. B, after",
"the seizure of the estate, in collusion with Z, executes a lease of the estate of Z",
at a nominal rent and for a long period and dates the lease six months prior to,
"the seizure, with intent to defraud A, and to cause it to be believed that the",
"lease was granted before the seizure. B, though he executes the lease in his",
"own name, commits forgery by antedating it.",
"(e) A, a trader, in anticipation of insolvency, lodges effects with B for A’s",
"benefit, and with intent to defraud his creditors; and in order to give a colour",
"to the transaction, writes a promissory note binding himself to pay to B a sum",
"for value received, and antedates the note, intending that it may be believed to",
have been made before. A was on the point of insolvency. A has committed,
forgery under the first head of the definition.,
Explanation 2,
"The making of a false document in the name of a fictitious person, intending it",
"to be believed that the document was made by a real person, or in the name of",
"a deceased person, intending it to be believed that the document was made by",
"the person in his lifetime, may amount to forgery.",
Illustration,
"A draws a bill of exchange upon a fictitious person, and fraudulently accepts",
the bill in the name of such fictitious person with intent to negotiate it. A,
commits forgery.,
[Explanation 3,
2,
"For the purposes of this section, the expression “affixing electronic signature”",
3,
shall have the meaning assigned to it in clause (d) of sub-section (1) of section,
"2 of the Information Technology Act, 2000.]",
"1. Subs. by Act 21 of 2000, sec. 91 and Sch. I, for certain words (w.e.f. 17-10-",
2000).,
"2. Ins. by Act 21 of 2000, sec. 91 and Sch. I (w.e.f. 17-10-2000).",
"3. Subs by Act 10 of 2009, sec. 51(e), for “digital signature”.",
Section 465. Punishment for forgery,
Whoever commits forgery shall be punished with imprisonment of either,
"description for a term which may extend to two years, or with fine, or with",
both.,
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 2 years, or fine, or both—Non-cognizable—",
Bailable—Triable by Magistrate of the first class—Non-compoundable.,
"Section 466. Forgery of record of court or of public register, etc.",
"[Whoever forges a document or an electronic record], purporting to be a",
1,
"record or proceeding of or in a Court of Justice, or a register of birth, baptism,",
"marriage or burial, or a register kept by a public servant as such, or a",
certificate or document purporting to be made by a public servant in his,
"official capacity, or an authority to institute or defend a suit, or to take any",
"proceedings therein, or to confess judgment, or a power of attorney, shall be",
punished with imprisonment of either description for a term which may,
"extend to seven years, and shall also be liable to fine.",
[Explanation,
1,
"For the purposes of this section, “register” includes any list, data or record of",
any entries maintained in the electronic form as defined in clause (r) of sub-,
"section (1) of section 2 of the Information Technology Act, 2000.]",
CLASSIFICATION OF OFFENCE,
Punishment—Imprisonment for 7 years and fine—Non-cognizable—Non-,
bailable—Triable by Magistrate of the first class—Non-compoundable.,
–,
"1. Subs. by Act 21 of 2000, sec. 91 and Sch. I, for “Whoever forges a document”",
(w.e.f. 17-10-2000).,
"Section 467. Forgery of valuable security, will, etc.",
"Whoever forges a document which purports to be a valuable security or a will,",
"or an authority to adopt a son, or which purports to give authority to any",
"person to make or transfer any valuable security, or to receive the principal,",
"interest or dividends thereon, or to receive or deliver any money, moveable",
"property, or valuable security, or any document purporting to be an",
"acquittance or receipt acknowledging the payment of money, or an acquittance",
"or receipt for the delivery of any moveable property or valuable security, shall",
"be punished with [imprisonment for life], or with imprisonment of either",
1,
"description for a term which may extend to ten years, and shall also be liable",
to fine.,
CLASSIFICATION OF OFFENCE,
Para I,
"Punishment—Imprisonment for life, or imprisonment for 10 years and fine—",
Non-cognizable—Non-bailable—Triable by Magistrate of the first class—Non-,
compoundable.,
Para II,
"Punishment—Imprisonment for life, or imprisonment for 10 years and fine—",
Cognizable—Non-bailable—Triable by Magistrate of the first class—Non-,
compoundable.,
"1. Subs. by Act 26 of 1955, sec. 117 and Sch., for “transportation for life” (w.e.f.",
1-1-1956).,
Section 468. Forgery for purpose of cheating,
"Whoever commits forgery, intending that the [document or Electronic Record",
1,
"forged] shall be used for the purpose of cheating, shall be punished with",
imprisonment of either description for a term which may extend to seven,
"years, and shall also be liable to fine.",
CLASSIFICATION OF OFFENCE,
Punishment—Imprisonment for 7 years and fine—Cognizable—Non-bailable,
—-Triable by Magistrate of the first class—Non-compoundable.,
–,
"1. Subs. by Act 21 of 2000, sec. 91 and Sch. I, for “document forged” (w.e.f. 17-",
10-2000).,
Section 469. Forgery for purpose of harming reputation,
"Whoever commits forgery, [intending that the document or Electronic Record",
1,
"forged] shall harm the reputation of any party, or knowing that it is likely to",
"used for that purpose, shall be punished with imprisonment of either",
"description for a term which may extend to three years, and shall also be liable",
to fine.,
CLASSIFICATION OF OFFENCE,
Punishment—Imprisonment for 3 years and fine—Cognizable—Bailable—,
Triable by Magistrate of the first class—Non-compoundable.,
"1. Subs. by Act 21 of 2000, sec. 91 and Sch. I, for “intending that the document",
forged” (w.e.f. 17-10-2000).,
Section 470. Forged document or electronic record,
Forged [document or electronic record].—A false [document or electronic,
1 1,
record] made wholly or in part by forgery is designated “a forged [document,
1,
or electronic record]”.,
–,
"1. Subs. by Act 21 of 2000, sec. 91 and Sch. I, for “document” (w.e.f. 17-10-",
2000).,
Section 471. Using as genuine a forged document or electronic record,
Using as genuine a forged [document or electronic record].—Whoever,
1,
fraudulently or dishonestly uses as genuine any [document or electronic,
1,
record] which he knows or has reason to believe to be a forged [document or,
1,
"electronic record], shall be punished in the same manner as if he had forged",
such [document or electronic record].,
1,
CLASSIFICATION OF OFFENCE,
Punishment—Punishment for forgery of such document—Cognizable—,
Bailable—Triable by Magistrate of the first class—Non-compoundable.,
–,
"1. Subs. by Act 21 of 2000, sec. 91 and Sch. I, for “document” (w.e.f. 17-10-",
2000).,
"Section 472. Making or possessing counterfeit seal, etc., with intent to commit forgery",
punishable under section 467,
"Whoever makes or counterfeits any seal, plate or other instrument for making",
"an impression, intending that the same shall be used for the purpose of",
committing any forgery which would be punishable under Section 467 of this,
"Code, or, with such intent, has in his possession any such seal, plate or other",
"instrument, knowing the same to be counterfeit, shall be punished",
"with [imprisonment for life], or with imprisonment of either description for a",
1,
"term which may extend to seven years, and shall also be liable to fine.",
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for life, or imprisonment for 7 years and fine—",
Cognizable—Bailable—Triable by Magistrate of the first class—Non-,
compoundable.,
"1. Subs. by Act 26 of 1955, sec. 117 and Sch., for “transportation for life” (w.e.f.",
1-1-1956).,
"Section 473. Making or possessing counterfeit seal, etc., with intent to commit forgery",
punishable otherwise,
"Whoever makes or counterfeit any seal, plate or other instrument for making",
"an impression, intending that the same shall be used for the purpose of",
committing any forgery which would be punishable under any section of this,
"Chapter other than Section 467, or, with such intent, has in his possession any",
"such seal, plate or other instrument, knowing the same to be counterfeit, shall",
be punished with imprisonment of either description for a term which may,
"extend to seven years, and shall also be liable to fine.",
CLASSIFICATION OF OFFENCE,
Punishment—Imprisonment for 7 years and fine—Cognizable—Bailable—,
Triable by Magistrate of the first class—Non-compoundable.,
"Section 474. Having possession of document described in Section 466 or 467, knowing it",
to be forged and intending to use it as genuine,
"[Whoever has in his possession any document or electronic record, knowing",
1,
"the same to be forged, and intending that the same shall fraudulently or",
"dishonestly be used as genuine, shall, if the document or electronic record, is",
"one of the description mentioned in section 466 of this Code], be punished",
with imprisonment of either description for a term which may extend to seven,
"years, and shall also be liable to fine; and if the document is one of the",
"description mentioned in section 467, shall be punished with [imprisonment",
2,
"for life], or with imprisonment of either description, for a term which may",
"extend to seven years, and shall also be liable to fine.",
CLASSIFICATION OF OFFENCE,
Para I,
Punishment—Imprisonment for 7 years and fine—Cognizable—Bailable—,
Triable by Magistrate of the first class—Non-compoundable.,
Para II,
"Punishment—Imprisonment for life, or imprisonment for 7 years and fine—",
Non-cognizable—Bailable—Triable by Magistrate of the first class—Non-,
compoundable.,
"1. Subs. by Act 21 of 2000, sec. 91 and Sch. I, for certain words (w.e.f. 17-10-",
2000).,
"2. Subs. by Act 26 of 1955, sec. 117 and Sch., for “transportation for life” (w.e.f.",
1-1-1956).,
Section 475. Counterfeiting device or mark used for authenticating documents described,
"in Section 467, or possessing counterfeit marked material",
"Whoever counterfeits upon, or in the substance of, any material, any device or",
mark used for the purpose of authenticating any document described in,
"Section 467 of this Code, intending that such device or mark shall be used for",
the purpose of giving the appearance of authenticity to any document then,
"forged or thereafter to be forged on such material, or who, with such intent,",
has in his possession any material upon or in the substance of which any such,
"device or mark has been counterfeited, shall be punished with [imprisonment",
1,
"for life], or with imprisonment of either description for a term which may",
"extend to seven years, and shall also be liable to fine.",
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for life, or imprisonment for 7 years and fine—",
Non-cognizable—Bailable—Triable by Magistrate of the first class—Non-,
compoundable.,
–,
"1. Subs. by Act 26 of 1955, sec. 117 and Sch., for “transportation for life” (w.e.f.",
1-1-1956).,
Section 476. Counterfeiting device or mark used for authenticating documents other,
"than those described in section 467, or possessing counterfeit marked material",
"Whoever counterfeits upon, or in the substance of, any material, any device or",
mark used for the purpose of authenticating [any document or electronic,
1,
"record] other than the documents described in section 467 of this Code,",
intending that such device or mark shall be used for the purpose of giving the,
appearance of authenticity to any document then forged or thereafter to be,
"forged on such material, or who, with such intent, has in his possession any",
material upon or in the substance of which any such device or mark has been,
"counterfeited, shall be punished with imprisonment of either description for a",
"term which may extend to seven years, and shall also be liable to fine.",
CLASSIFICATION OF OFFENCE,
Punishment—Imprisonment for 7 years and fine—Non-cognizable—Non-,
bailable—Triable by Magistrate of the first class—Non-compoundable.,
–,
"1. Subs. by Act 21 of 2000, sec. 91 and Sch. I, for “any document” (w.e.f. 17-10-",
2000).,
"Section 477. Fraudulent cancellation, destruction, etc., of will, authority to adopt, or",
valuable security,
"Whoever fraudulently or dishonestly, or with intent to cause damage or injury",
"to the public or to any person, cancels, destroys or defaces, or attempts to",
"cancel, destroy or deface, or secretes or attempts to secrete any document",
"which is or purports to be a will, or an authority to adopt a son, or any",
"valuable security, or commits mischief in respect of such document, shall be",
"punished with [imprisonment for life], or with imprisonment of either",
1,
"description for a term which may extend to seven years, and shall also be",
liable to fine.,
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for life, or imprisonment for 7 years and fine—",
Non-cognizable—Non-bailable—Triable by Magistrate of the first class—Non-,
compoundable.,
"1. Subs. by Act 26 of 1955, sec. 117 and Sch., for “transportation for life” (w.e.f.",
1-1-1956).,
Section 477A. Falsification of accounts,
"[477A. Falsification of accounts.—Whoever, being a clerk, officer or servant,",
1,
"or employed or acting in the capacity of a clerk, officer or servant, wilfully, and",
"with intent to defraud, destroys, alters, mutilates or falsifies any [book,",
2,
"electronic record, paper, writing], valuable security or account which belongs",
"to or is in the possession of his employer, or has been received by him for or",
"on behalf of his employer, or wilfully, and with intent to defraud, makes or",
"abets the making of any false entry in, or omits or alters or abets the omission",
"or alteration of any material particular from or in, any such [book, electronic",
2,
"record, paper, writing], valuable security or account, shall be punished with",
imprisonment of either description for a term which may extend to seven,
"years, or with fine, or with both.",
Explanation,
It shall be sufficient in any charge under this section to allege a general intent,
to defraud without naming any particular person intended to be defrauded or,
"specifying any particular sum of money intended to be the subject of the fraud,",
or any particular day on which the offence was committed.],
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 7 years, or fine, or both—Non-cognizable—",
Bailable—Triable by Magistrate of the first class—Non-compoundable.,
—-,
"1. Added by Act 3 of 1895, sec. 4.",
"2. Subs. by Act 21 of 2000, sec. 91 and Sch. I, for “book, paper, writing” (w.e.f.",
17-10-2000).,
Section 478. Trade marks,
"[Rep. by the Trade and Merchandise Marks Act, 1958 (43 of 1958, sec. 135 and Sch. (w.e.f. 25-11-1959).]",
Section 479. Property mark,
A mark used for denoting that moveable property belongs to a particular,
person is called a property mark.,
Section 480. Using a false trade mark,
"[Rep. by the Trade and Merchandise Marks Act, 1958 (43 of 1958), s. 135 and Sch., (w.e.f. 25-11-1959).]",
Section 481. Using a false property mark,
"Whoever marks any moveable property or goods or any case, package or other",
"receptacle containing moveable property or goods, or uses any case, package",
"or other receptacle having any mark thereon, in a manner reasonably",
"calculated to cause it to be believed that the property or goods so marked, or",
"any property or goods contained in any such receptacle so marked, belong to a",
"person to whom they do not belong, is said to use a false property mark.",
Section 482. Punishment for using a false property mark,
"Whoever uses [* * *] any false property mark shall, unless he proves that he",
1,
"acted without intent to defraud, be punished with imprisonment of either",
"description for a term which may extend to one year, or with fine, or with both",
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 1 year, or fine, or both—Non-cognizable—",
Bailable—Triable by any Magistrate—Compoundable by the person to whom,
loss or injury is caused by such use with the permission of the court.,
–,
"1. The words “any false trade mark or” omitted by Act 43 of 1958, sec. 135 and",
Sch. (w.e.f. 25-11-1959).,
Section 483. Counterfeiting a property mark used by another,
Whoever counterfeits any [* * *] property mark used by any other person,
1,
shall be punished with imprisonment of either description for a term which,
"may extend to two years, or with fine, or with both",
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 2 years, or fine, or both—Non-cognizable—",
Bailable—Triable by any Magistrate—Compoundable by the person whose,
trade or property mark is counterfeited with the permission of the court.,
—-,
"1. The words “trade mark or” omitted by Act 43 of 1958, sec. 135 and Sch.",
(w.e.f. 25-11-1959).,
Section 484. Counterfeiting a mark used by a public servant,
[484. Counterfeiting a mark used by a public servant.—Whoever counterfeits,
1,
"any property mark used by a public servant, or any mark used by a public",
servant to denote that any property has been manufactured by a particular,
"person or at a particular time or place, or that the property is of a particular",
"quality or has passed through a particular office, or that it is entitled to any",
"exemption, or uses as genuine any such mark knowing the same to be",
"counterfeit, shall be punished with imprisonment of either description for a",
"term which may extend to three years, and shall also be liable to fine.]",
CLASSIFICATION OF OFFENCE,
Punishment—Imprisonment for 3 years and fine—Non-cognizable—Bailable—,
Triable by Magistrate of the first class—Non-compoundable.,
"1. Subs. by Act 4 of 1889, sec. 3, for the original section 484.",
Section 485. Making or possession of any instrument for counterfeiting a property mark,
[485. Making or possession of any instrument for counterfeiting a property,
1,
"mark.—Whoever makes or has in his possession any die, plate or other",
"instrument for the purpose of counterfeiting a property mark, or has in his",
possession a property mark for the purpose of denoting that any goods belong,
"to a person to whom they do not belong, shall be punished with imprisonment",
"of either description for a term which may extend to three years or with fine,",
or with both.],
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 3 years, or fine, or both—Non-cognizable—",
Bailable—Triable by Magistrate of the first class—Non-compoundable.,
–,
"1. Subs. by Act 43 of 1958, sec. 135 and Sch., for the original section 485 (w.e.f.",
25-11-1959).,
Section 486. Selling goods marked with a counterfeit property mark,
[486. Selling goods marked with a counterfeit property mark.— [Whoever,
1 2,
"sells, or exposes, or has in possession for sale, any goods or things with a",
counterfeit property mark] affixed to or impressed upon the same or to or,
"upon any case, package or other receptacle in which such goods are contained,",
"shall, unless he proves",
"(a) that, having taken all reasonable precautions against committing an",
"offence against this section, he had at the time of the commission of the",
"alleged offence no reason to suspect the genuineness of the mark, and",
"(b) that, on demand made by or on behalf of the prosecutor, he gave all the",
information in his power with respect to the persons from whom he obtained,
"such goods or things, or",
"(c) that otherwise he had acted innocently,",
be punished with imprisonment of either description for a term which may,
"extend to one year, or with fine, or with both.]",
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 1 year, or fine, or both—Non-cognizable—",
Bailable—Triable by any Magistrate—Compoundable by the person whose,
trade or property mark is counterfeited with the permission of the court.,
"1. Subs. by Act 4 of 1889, sec. 3, for the original section 486.",
"2. Subs. by Act 43 of 1958, sec. 135 and Sch., for certain words (w.e.f. 25-11-",
1959).,
Section 487. Making a false mark upon any receptacle containing goods,
[487. Making a false mark upon any receptacle containing goods.—Whoever,
1,
"makes any false mark upon any case, package or other receptacle containing",
"goods, in a manner reasonably calculated to cause any public servant or any",
other person to believe that such receptacle contains goods which it does not,
"contain or that it does not contain goods which it does contain, or that the",
goods contained in such receptacle are of a nature or quality different from the,
"real nature or quality thereof, shall, unless he proves that he acted without",
"intent to defraud, be punished with imprisonment of either description for a",
"term which may extend to three years, or with fine, or with both.]",
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 3 years, or fine, or both—Non-cognizable—",
Bailable—Triable by any Magistrate—Non-compoundable.,
"1. Subs. by Act 4 of 1889, sec. 3, for the original section 487.",
Section 488. Punishment for making use of any such false mark,
[488. Punishment for making use of any such false mark.—Whoever makes,
1,
use of any such false mark in any manner prohibited by the last foregoing,
"section shall, unless he proves that he acted without intent to defraud, be",
punished as if he had committed an offence against that section.],
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 3 years, or fine, or both—Non-cognizable—",
Bailable—Triable by any Magistrate—Non-compoundable.,
—-,
"1. Subs. by Act 4 of 1889, sec. 3, for the original section 488.",
Section 489. Tampering with property mark with intent to cause injury,
[489. Tampering with property mark with intent to cause injury.—Whoever,
1,
"removes, destroys, defaces or adds to any property mark, intending or",
"knowing it to be likely that he may thereby cause injury to any person, shall be",
punished with imprisonment of either description for a term which may,
"extend to one year, or with fine, or with both.]",
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 1 year, or fine, or both—Non-cognizable—",
Bailable—Triable by any Magistrate—Non-compoundable.,
–,
"1. Subs. by Act 4 of 1889, sec. 3, for the original section 489.",
Section 489A. Counterfeiting currency-notes or bank-notes,
"[489A. Counterfeiting currency-notes or bank-notes.—Whoever counter-feits,",
1,
"or knowingly performs any part of the process of counterfeiting, any currency-",
"note or bank-note, shall be punished with [imprisonment for life], or with",
2,
"imprisonment of either description for a term which may extend to ten years,",
and shall also be liable to fine.,
Explanation,
"For the purposes of this section and of sections 489B, [489C, 489D and",
3,
"489E], the expression “bank-note” means a promissory note or engagement",
for the payment of money to bearer on demand issued by any person carrying,
"on the business of banking in any part of the world, or issued by or under the",
"authority of any State or Sovereign Power, and intended to be used as equiva-",
"lent to, or as a substitute for money.]",
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for life, or imprisonment for 10 years and fine—",
Cognizable—Non-bailable—Triable by Court of Session—Non-compoundable.,
–,
"1. Added by Act 12 of 1899, sec. 2.",
"2. Subs. by Act 26 of 1955, sec. 117 and Sch., for “transportation for life” (w.e.f.",
1-1-1956).,
"3. Subs. by Act 35 of 1950, sec. 3 and Sch. II, for “489C and 489D”.",
"Section 489B. Using as genuine, forged or counterfeit currency-notes or bank-notes",
"[489B. Using as genuine, forged or counterfeit currency-notes or bank-notes.",
1,
"—Whoever sells to, or buys or receives from, any other person, or otherwise",
"traffics in or uses as genuine, any forged or counterfeit currency-note or bank-",
"note, knowing or having reason to believe the same to be forged or counterfeit,",
"shall be punished with [imprisonment for life], or with imprisonment of",
2,
"either description for a term which may extend to ten years, and shall also be",
liable to fine.],
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for life, or imprisonment for 10 years and fine—",
Cognizable—Non-bailable—Triable by Court of Session—Non-compoundable.,
–,
"1. Added by Act 12 of 1899, sec. 2.",
"2. Subs. by Act 26 of 1955, sec. 117 and Sch., for “transportation for life” (w.e.f.",
1-1-1956).,
Section 489C. Possession of forged or counterfeit currency-notes or bank-notes,
[489C. Possession of forged or counterfeit currency-notes or bank-notes.—,
1,
Whoever has in his possession any forged or counterfeit currency-note or,
"bank-note, knowing or having reason to believe the same to be forged or",
counterfeit and intending to use the same as genuine or that it may be used as,
"genuine, shall be punished with imprisonment of either description for a term",
"which may extend to seven years, or with fine, or with both.]",
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 7 years, or fine, or both—Cognizable—",
Bailable—Triable by Court of Session—Non-compoundable.,
"1. Added by Act 12 of 1899, sec. 2.",
Section 489D. Making or possessing instruments or materials for forgoing or,
counterfeiting currency-notes or bank-notes,
[489D. Making or possessing instruments or materials for forging or,
1,
"counterfeiting currency-notes or bank-notes.—Whoever makes, or performs,",
"any part of the process of making, or buys or sells or disposes of, or has in his",
"possession, any machinery, instrument or material for the purpose of being",
"used, or knowing or having reason to believe that it is intended to be used, for",
"forging or counterfeiting any currency-note or bank-note, shall be punished",
"with [imprisonment for life], or with imprisonment of either description for a",
2,
"term which may extend to ten years, and shall also be liable to fine.]",
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for life, or imprisonment for 10 years and fine—",
Cognizable—Non-bailable—Triable by Court of Session—Non-compoundable.,
—–,
"1. Added by Act 12 of 1899, sec. 2.",
"2. Subs. by Act 26 of 1955, sec. 117 and Sch., for “transportation for life” (w.e.f.",
1-1-1956).,
Section 489E. Making or using documents resembling currency-notes or bank-notes,
[489E. Making or using documents resembling currency-notes or bank-notes.,
1,
"—(1) Whoever makes, or causes to be made, or uses for any purpose",
"whatsoever, or delivers to any person, any document purporting to be, or in",
"any way resembling, or so nearly resembling as to be calculated to deceive, any",
currency-note or bank-note shall be punished with fine which may extend to,
one hundred rupees.,
"(2) If any person, whose name appears on a document the making of which is",
"an offence under sub-section (1), refuses, without lawful excuse, to disclose to",
a police-officer on being so required the name and address of the person by,
"whom it was printed or otherwise made, he shall be punished with fine which",
may extend to two hundred rupees.,
(3) Where the name of any person appears on any document in respect of,
which any person is charged with an offence under sub-section (1) or on any,
"other document used or distributed in connection with that document it may,",
"until the contrary is proved, be presumed that person caused the document to",
be made.],
CLASSIFICATION OF OFFENCE,
Punishment—Fine of 100 rupees—Non-Cognizable—Bailable—Triable by any,
Magistrate—Non-compoundable.,
–,
"1. Ins. by Act 6 of 1943, sec. 2.",
Section 490. Breach of contract of service during voyage or journey,
"[Rep. by the Workmen’s Breach of Contract (Repealing) Act, 1925 (3 of 1925), sec. 2 and Sch.]",
Section 491. Breach of contract to attend on and supply wants of helpless person,
"Whoever, being bound by a lawful contract to attend on or to supply the wants",
"of any person who, by reason of youth, or of unsoundness of mind, or of a",
"disease or bodily weakness, is helpless or incapable of providing for his own",
"safety or of supplying his own wants, voluntarily omits so to do, shall be",
punished with imprisonment of either description for a term which may,
"extend to three months, or with fine which may extend to two hundred rupees,",
or with both.,
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 3 months, or fine of 200 rupees, or both—",
Non-cognizable—Bailable—Triable by any Magistrate—Compoundable by the,
person with whom the offender has contracted.,
Section 492. Breach of contract to serve at distant place to which servant is conveyed at,
master’s expense,
"[Rep. by the workmen’s Breach of Contract (Repealing) Act, 1925 (3 of 1925), sec. 2 and Sch.]",
Section 493. Cohabitation caused by a man deceitfully inducing a belief of lawful,
marriage,
Every man who by deceit causes any woman who is not lawfully married to,
him to believe that she is lawfully married to him and to cohabit or have sexual,
"intercourse with him in that belief, shall be punished with imprisonment of",
"either description for a term which may extend to ten years, and shall also be",
liable to fine.,
CLASSIFICATION OF OFFENCE,
Punishment—Imprisonment for 10 years and fine—Non-cognizable—Non-,
bailable—Triable by Magistrate of the first class—Non-compoundable.,
Section 494. Marrying again during lifetime of husband or wife,
"Whoever, having a husband or wife living, marries in any case in which such",
marriage is void by reason of its taking place during the life of such husband,
"or wife, shall be punished with imprisonment of either description for a term",
"which may extend to seven years, and shall also be liable to fine.",
Exception.—This section does not extend to any person whose marriage with,
such husband or wife has been declared void by a Court of competent,
"jurisdiction,",
nor to any person who contracts a marriage during the life of a former,
"husband or wife, if such husband or wife, at the time of the subsequent",
"marriage, shall have been continually absent from such person for the space of",
"seven years, and shall not have been heard of by such person as being alive",
within that time provided the person contracting such subsequent marriage,
"shall, before such marriage takes place, inform the person with whom such",
marriage is contracted of the real state of facts so far as the same are within,
his or her knowledge.,
CLASSIFICATION OF OFFENCE,
Punishment—Imprisonment for 7 years and fine—Non-cognizable—Bailable—,
Triable by Magistrate of the first class—Compoundable by the husband or wife,
of the person so marrying with the permission of the court.,
State Amendment,
Andhra Pradesh,
Punishment—Imprisonment for 7 years and fine—Cognizable—Non-bailable—,
Triable by Magistrate of the first class—Non-compoundable.,
"[Vide Andhra Pradesh Act 3 of 1992, sec. 2 (w.e.f. 15-2-1992)].",
Section 495. Same offence with concealment of former marriage from person with whom,
subsequent marriage is contracted,
Whoever commits the offence defined in the last preceding section having,
"concealed from the person with whom the subsequent marriage is contracted,",
"the fact of the former marriage, shall be punished with imprisonment of either",
"description for a term which may extend to ten years, and shall also be liable",
to fine.,
CLASSIFICATION OF OFFENCE,
Punishment—Imprisonment for 10 years and fine—Non-cognizable—Bailable,
—Triable by Magistrate of the first class—Non-compoundable.,
STATE AMENDMENT,
Andhra Pradesh,
Punishment—Imprisonment for 10 years and fine—Cognizable—Non-bailable,
—Triable by Magistrate of the first class—Non-compoundable.,
"[Vide Andhra Pradesh Act 3 of 1992, sec. 2 (w.e.f. 15-2-1992)]",
Section 496. Marriage ceremony fraudulently gone through without lawful marriage,
"Whoever, dishonestly or with a fraudulent intention, goes through the",
"ceremony of being married, knowing that he is not thereby lawfully married,",
shall be punished with imprisonment of either description for a term which,
"may extend to seven years, and shall also be liable to fine.",
CLASSIFICATION OF OFFENCE,
Punishment—Imprisonment for 7 years and fine—Non-cognizable—Bailable—,
Triable by Magistrate of the first class—Non-compoundable.,
State Amendment,
Andhra Pradesh,
Punishment—Imprisonment for 7 years and fine—Cognizable—Non-bailable—,
Triable by Magistrate of the first class—Non-compoundable.,
"[Vide Andhra Pradesh Act 3 of 1992, sec. 2 (w.e.f. 15-2-1992)].",
Section 497. Adultery,
Whoever has sexual intercourse with a person who is and whom he knows or,
"has reason to believe to be the wife of another man, without the consent or",
"connivance of that man, such sexual intercourse not amounting to the offence",
"of rape, is guilty of the offence of adultery, and shall be punished with",
"imprisonment of either description for a term which may extend to five years,",
"or with fine, or with both. In such case the wife shall not be punishable as an",
abettor.,
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 5 years, or fine, or both—Non-cognizable—",
Bailable—Triable by Magistrate of the first class—Non-compoundable.,
STATE AMENDMENT,
Andhra Pradesh,
"Punishment—Imprisonment for 5 years, or fine, or both—Cognizable—",
Bailable—Triable by Magistrate of the first class—Non-compoundable.,
"[Vide Andhra Pradesh Act 3 of 1992, sec. 2 (w.e.f. 15-2-1992)].",
Section 498. Enticing or taking away or detaining with criminal intent a married woman,
Whoever takes or entices away any woman who is and whom he knows or has,
"reason to believe to be the wife of any other man, from that man, or from any",
"person having the care of her on behalf of that man, with intent that she may",
"have illicit intercourse with any person, or conceals or detains with that intent",
"any such woman, shall be punished with imprisonment of either description",
"for a term which may extend to two years, or with fine, or with both.",
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 2 years, or fine, or both—Non-cognizable—",
Bailable—Triable by any Magistrate—Compoundable by the person with,
whom the offender has contracted.,
Section 498A. Husband or relative of husband of a woman,
subjecting her to cruelty,
[498A. Husband or relative of husband of a woman subjecting her to cruelty.,
1,
"—Whoever, being the husband or the relative of the husband of a woman,",
subjects such woman to cruelty shall be punished with imprisonment for a,
term which may extend to three years and shall also be liable to fine.,
Explanation,
"For the purpose of this section, “cruelty” means",
(a) any wilful conduct which is of such a nature as is likely to drive the woman,
"to commit suicide or to cause grave injury or danger to life, limb or health",
(whether mental or physical) of the woman; or,
(b) harassment of the woman where such harassment is with a view to,
coercing her or any person related to her to meet any unlawful demand for any,
property or valuable security or is on account of failure by her or any person,
related to her to meet such demand.],
CLASSIFICATION OF OFFENCE,
Punishment—Imprisonment for 3 years and fine-Cognizable if information,
relating to the commission of the offence is given to an officer in charge of a,
police station by the person aggrieved by the offence or by any person related,
"to her by blood, marriage or adoption or if there is no such relative, by any",
public servant belonging to such class or category as may be notified by the,
State Government in this behalf—Non-bailable—Triable by Magistrate of the,
first class—Non-compoundable.,
Section 498A vis-a-vis section 113 of Evidence Act,
Section 498A of the Indian Penal Code or section 113A of the Indian Evidence,
Act has not introduced invidious classification qua the treatment of a married,
woman by her husband or relatives of her husband vis-a-vis the other,
"offenders. On the other hand, such women form a class apart whom from",
those who are married more than seven years earlier to the commission of,
"such offence, because, with the passage of time after marriage and birth of",
"children, there are remote chances of treating a married woman with cruelty",
"by her husband or his relatives. Thus, the classification is reasonable and has",
"close nexus with the object sought to be achieved, i.e., eradication of the evil of",
dowry in the Indian social set-up and to ensure that the married women live,
"with dignity at their matrimonial homes; Krishan Lal v. Union of India, 1994",
Cr LJ 3472.,
Unhappiness between husband and wife,
Where the prosecution relied only on incident of unhappiness of deceased,
"with her husband and the allegation was only in form of suggestion, it does not",
"establish criminal offence under either or both of the charges, hence",
"conviction under section 498A is improper; State v. K. Sridhar, 2000 Cr LJ",
328 (Kant).,
Wilful Conduct,
"The allegations against the husband were that he abused and beat his wife,",
"forced her to have a common kitchen with a harijan family, accused her of",
"adultery and of carrying in her womb someone else’s child, pressurizing her to",
"agree for an abortion, and such other acts. This amounted to a wilful conduct",
"of cruelty towards wife; Rishi Kumar v. State of Haryana, Criminal Appeal No.",
335-B of 1985.,
–,
"1. Ins. by Act 46 of 1983, sec. 2 (w.e.f. 25-12-1983).",
Section 499. Defamation,
"Whoever, by words either spoken or intended to be read, or by signs or by",
"visible representations, makes or publishes any imputation concerning any",
"person intending to harm, or knowing or having reason to believe that such",
"imputation will harm, the reputation of such person, is said, except in the",
"cases hereinafter expected, to defame that person.",
Explanation 1,
"It may amount to defamation to impute anything to a deceased person, if the",
"imputation would harm the reputation of that person if living, and is intended",
to be hurtful to the feelings of his family or other near relatives.,
Explanation 2,
It may amount to defamation to make an imputation concerning a company or,
an association or collection of persons as such.,
Explanation 3,
"An imputation in the form of an alternative or expressed ironically, may",
amount to defamation.,
Explanation 4,
"No imputation is said to harm a person’s reputation, unless that imputation",
"directly or indirectly, in the estimation of others, lowers the moral or",
"intellectual character of that person, or lowers the character of that person in",
"respect of his caste or of his calling, or lowers the credit of that person, or",
"causes it to be believed that the body of that person is in a loathsome state, or",
in a state generally considered as disgraceful.,
Illustrations,
(a) A says—“Z is an honest man; he never stole B’s watch”; intending to cause,
"it to be believed that Z did steal B’s watch. This is defamation, unless it fall",
within one of the exceptions.,
"(b) A is asked who stole B’s watch. A points to Z, intending to cause it to be",
believed that Z stole B’s watch. This is defamation unless it fall within one of,
the exceptions.,
"(c) A draws a picture of Z running away with B’s watch, intending it to be",
"believed that Z stole B’s watch. This is defamation, unless it fall within one of",
the exceptions.,
First Exception.—Imputation of truth which public good requires to,
be made or published.—It is not defamation to impute anything which is,
"true concerning any person, if it be for the public good that the imputation",
should be made or published. Whether or not it is for the public good is a,
question of fact.,
Second Exception.—Public conduct of public servants.—It is not,
defamation to express in a good faith any opinion whatever respecting the,
"conduct of a public servant in the discharge of his public functions, or",
"respecting his character, so far as his character appears in that conduct, and",
no further.,
Third Exception.—Conduct of any person touching any public,
question.—It is not defamation to express in good faith any opinion whatever,
"respecting the conduct of any person touching any public question, and",
"respecting his character, so far as his character appears in that conduct, and",
no further.,
Illustration,
It is not defamation in A to express in good faith any opinion whatever,
"respecting Z’s conduct in petitioning Government on a public question, in",
"signing a requisition for a meeting on a public question, in presiding or",
"attending a such meeting, in forming or joining any society which invites the",
"public support, in voting or canvassing for a particular candidate for any situa-",
tion in the efficient discharges of the duties of which the public is interested.,
Fourth Exception.—Publication of reports of proceedings of Courts.—,
It is not defamation to publish substantially true report of the proceedings of a,
"Court of Justice, or of the result of any such proceedings.",
Explanation,
A Justice of the Peace or other officer holding an inquiry in open Court,
"preliminary to a trial in a Court of Justice, is a Court within the meaning of the",
above section.,
Fifth Exception.—Merits of case decided in Court or conduct of,
witnesses and others concerned.—It is not defamation to express in good,
"faith any opinion whatever respecting the merits of any case, civil or criminal,",
"which has been decided by a Court of Justice, or respecting the conduct of any",
"person as a party, witness or agent, in any such case, or respecting the",
"character of such person, as far as his character appears in that conduct, and",
no further.,
Illustrations,
(a) A says—“I think Z’s evidence on that trial is so contradictory that he must,
be stupid or dishonest”. A is within this exception if he says this is in good,
"faith, in as much as the opinion which he expresses respects Z’s character as it",
"appears in Z’s conduct as a witness, and no further.",
(b) But if A says—“I do not believe what Z asserted at that trial because I know,
"him to be a man without veracity”; A is not within this exception, in as much",
"as the opinion which he express of Z’s character, is an opinion not founded on",
Z’s conduct as a witness.,
Sixth Exception.—Merits of public performance.—It is not defamation to,
express in good faith any opinion respecting the merits of any performance,
"which its author has submitted to the judgment of the public, or respecting the",
"character of the author so far as his character appears in such performance,",
and no further.,
Explanation,
A performance may be submitted to the judgment of the public expressly or by,
acts on the part of the author which imply such submission to the judgment of,
the public.,
Illustrations,
"(a) A person who publishes a book, submits that book to the judgment of the",
public.,
"(b) A person who makes a speech in public, submits that speech to the",
judgment of the public.,
"(c) An actor or singer who appears on a public stage, submits his acting or",
signing in the judgment of the public.,
(d) A says of a book published by Z—“Z’s book is foolish; Z must be a weak,
man. Z’s book is indecent; Z must be a man of impure mind”. A is within the,
"exception, if he says this in good faith, in as much as the opinion which he",
"expresses of Z respects Z’s character only so far as it appears in Z’s book, and",
no further.,
"(e) But if A says—“I am not surprised that Z’s book is foolish and indecent, for",
"he is a weak man and a libertine”. A is not within this exception, in as much as",
the opinion which he expresses of Z’s character is an opinion not founded on,
Z’s book.,
Seventh Exception.—Censure passed in good faith by person having,
lawful authority over another.—It is not defamation in a person having,
"over another any authority, either conferred by law or arising out of a lawful",
"contract made with that other, to pass in good faith any censure on the",
conduct of that other in matters to which such lawful authority relates.,
Illustration,
"A Judge censuring in good faith the conduct of a witness, or of an officer of the",
Court; a head of a department censuring in good faith those who are under his,
orders; a parent censuring in good faith a child in the presence of other,
"children; a school-master, whose authority is derived from a parent, censuring",
in good faith a pupil in the presence of other pupils; a master censuring a,
servant in good faith for remissness in service; a banker censuring in good,
faith the cashier of his bank for the conduct of such cashier as such cashier—,
are within this exception.,
Eighth Exception.—Accusation preferred in good faith to authorised,
person.—It is not defamation to prefer in good faith an accusation against any,
person to any of those who have lawful authority over that person with respect,
to the subject-matter of accusation.,
Illustration,
If A in good faith accuse Z before a Magistrate; if A in good faith complains of,
"the conduct of Z, a servant, to Z’s master; if A in good faith complains of the",
"conduct of Z, and child, to Z’s father—A is within this exception.",
Ninth Exception.—Imputation made in good faith by person for,
protection of his or other’s interests.—It is not defamation to make an,
imputation on the character of another provided that the imputation be made,
"in good faith for the protection of the interests of the person making it, or of",
"any other person, or for the public good.",
Illustrations,
"(a) A, a shopkeeper, says to B, who manages his business—“Sell nothing to Z",
"unless he pays you ready money, for I have no opinion of his honesty”. A is",
"within the exception, if he has made this imputation on Z in good faith for the",
protection of his own interests.,
"(b) A, a Magistrate, in making a report of his own superior officer, casts an",
"imputation on the character of Z. Here, if the imputation is made in good",
"faith, and for the public good, A is within the exception.",
Tenth Exception.—Caution intended for good of person to whom,
"conveyed or for public good.—It is not defamation to convey a caution, in",
"good faith, to one person against another, provided that such caution be",
"intended for the good of the person to whom it is conveyed, or of some person",
"in whom that person is interested, or for the public good.",
Section 500. Punishment for defamation,
Whoever defames another shall be punished with simple imprisonment for a,
"term which may extend to two years, or with fine, or with both.",
CLASSIFICATION OF OFFENCE,
Para I,
"Punishment—Simple imprisonment for 2 years, or fine, or both—Non-",
cognizable—Bailable—Triable by Court of Session—Compoundable by the,
person defamed.,
Para II,
"Punishment—Simple imprisonment for 2 years, or fine, or both—Non-",
cognizable—Bailable—Triable by Magistrate of the first class—Compoundable,
by the person defamed with the permission of the court.,
Section 501. Printing or engraving matter known to be defamatory,
"Whoever prints or engraves any matter, knowing or having good reason to",
"believe that such matter is defamatory of any person, shall be punished with",
"simple imprisonment for a term which may extend to two years, or with fine,",
or with both.,
CLASSIFICATION OF OFFENCE,
Para I,
"Punishment—Simple imprisonment for 2 years, or fine, or both—Non-",
cognizable—Bailable—Triable by Court of Session—Compoundable by the,
person defamed.,
Para II,
"Punishment—Simple imprisonment for 2 years, or fine, or both—Non-",
cognizable—Bailable—Triable by Magistrate of the first class—Non-,
compoundable.,
Section 502. Sale of printed or engraved substance containing defamatory matter,
Whoever sells or offers for sale any printed or engraved substance containing,
"defamatory matter, knowing that it contains such matter, shall be punished",
"with simple imprisonment for a term which may extend to two years, or with",
"fine, or with both.",
CLASSIFICATION OF OFFENCE,
Para I,
"Punishment—Simple imprisonment for 2 years, or fine, or both—Non-",
cognizable—Bailable—Triable by Court of Session—Compoundable by the,
person defamed.,
Para II,
"Punishment—Simple imprisonment for 2 years, or fine, or both—Non-",
cognizable—Bailable—Triable by Magistrate of the first class—Non-,
compoundable.,
Section 503. Criminal intimidation,
"Whoever threatens another with any injury to his person, reputation or",
"property, or to the person or reputation of any one in whom that person is",
"interested, with intent to cause alarm to that person, or to cause that person to",
"do any act which he is not legally bound to do, or to omit to do any act which",
"that person is legally entitled to do, as the means of avoiding the execution of",
"such threat, commits criminal intimidation.",
Explanation,
A threat to injure the reputation of any deceased person in whom the person,
"threatened is interested, is within this section.",
Illustration,
"A, for the purpose of inducing B to desist from prosecuting a civil suit,",
threatens to burn B’s house. A is guilty of criminal intimidation.,
Section 504. Intentional insult with intent to provoke breach of the peace,
"Whoever intentionally insults, and thereby gives provocation to any person,",
intending or knowing it to be likely that such provocation will cause him to,
"break the public peace, or to commit any other offence, shall be punished with",
"imprisonment of either description for a term which may extend to two years,",
"or with fine, or with both.",
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 2 years, or fine, or both—Non-cognizable—",
Bailable—Triable by any Magistrate—Compoundable by the person insulted.,
Section 505. Statements conducing to public mischief,
"[505. Statements conducing to public mischief.— [(1)] Whoever makes,",
1 2,
"publishes or circulates any statement, rumour or report,",
"(a) with intent to cause, or which is likely to cause, any officer, soldier, [sailor",
3,
"or airman] in the Army, [Navy or Air Force] [of India] to mutiny or otherwise",
4 5,
disregard or fail in his duty as such; or,
"(b) with intent to cause, or which is likely to cause, fear or alarm to the public,",
or to any section of the public whereby any person may be induced to commit,
an offence against the State or against the public tranquility; or,
"(c) with intent to incite, or which is likely to incite, any class or community of",
"persons to commit any offence against any other class or community,",
"shall be punished with imprisonment which may extend to [three years], or",
6,
"with fine, or with both.",
"7[(2) Statements creating or promoting enmity, hatred or ill-will",
"between classes.—Whoever makes, publishes or circulates any statement or",
"report containing rumour or alarming news with intent to create or promote,",
"or which is likely to create or promote, on grounds of religion, race, place of",
"birth, residence, language, caste or community or any other ground",
"whatsoever, feelings of enmity, hatred or ill-will between different religious,",
"racial, language or regional groups or castes or communities, shall be",
"punished with imprisonment which may extend to three years, or with fine, or",
with both.,
"(3) Offence under sub-section (2) committed in place of worship, etc.",
—Whoever commits an offence specified in sub-section (2) in any place of,
worship or in an assembly engaged in the performance of religious worship or,
"religious ceremonies, shall be punished with imprisonment which may extend",
to five years and shall also be liable to fine.],
"Exception.—It does not amount to an offence, within the meaning of this",
"section when the person making, publishing or circulating any such statement,",
"rumour or report, has reasonable grounds for believing that such statement,",
"rumour or report is true and makes, publishes or circulates it [in good faith",
8,
and] without any such intent as aforesaid.],
CLASSIFICATION OF OFFENCE,
Para I,
"Punishment—Imprisonment for 3 years, or fine, or both—Non-cognizable—",
Non-bailable—Triable by any Magistrate—Non-compoundable.,
Para II,
"Punishment—Imprisonment for 3 years, or fine, or both—Cognizable—Non-",
bailable—Triable by any Magistrate—Non-compoundable.,
Para III,
Punishment—Imprisonment for 5 years and fine—Cognizable—Non-bailable—,
Triable by any Magistrate—Non-compoundable.,
"1. Subs. by Act 4 of 1898, sec. 6, for the original section 505.",
"2. Section 505 renumbered as sub-section (1) of that section by Act 35 of 1969,",
sec. 3.,
"3. Subs. by Act 10 of 1927, sec. 2 and Sch. I, for “or sailor”.",
"4. Subs. by Act 10 of 1927, sec. 2 and Sch. I, for “or Navy”.",
5. Subs. by A.O. 1950 for “of Her Majesty or in the Imperial Service Troops”.,
The words “or in the Royal Indian Marine” occurring after the words,
"“Majesty” were omitted by Act 35 of 1934, sec. 2 and Sch.",
"6. Subs. by Act 41 of 1961, sec. 4, for “two years” (w.e.f. 12-9-1961).",
"7. Ins. by Act 35 of 1969, sec. 3 (w.e.f. 4-6-1969).",
8. Subs. by A.O. 1950 for “of Her Majesty or in the Imperial Service Troops”.,
The words “or in the Royal Indian Marine” occurring after the words,
"“Majesty” were omitted by Act 35 of 1934, sec. 2 and Sch.",
Section 506. Punishment for criminal intimidation,
"Whoever commits, the offence of criminal intimidation shall be punished with",
"imprisonment of either description for a term which may extend to two years,",
"or with fine, or with both;",
"If threat be to cause death or grievous hurt, etc.—And if the threat be",
"to cause death or grievous hurt, or to cause the destruction of any property by",
"fire, or to cause an offence punishable with death or [imprisonment for life],",
1,
"or with imprisonment for a term which may extend to seven years, or to",
"impute, unchastity to a woman, shall be punished with imprisonment of either",
"description for a term which may extend to seven years, or with fine, or with",
both.,
CLASSIFICATION OF OFFENCE,
Para I,
"Punishment—Imprisonment for 2 years, or fine, or both—Non-cognizable-",
Bailable—Triable by any Magistrate—Compoundable by the person,
intimidated.,
Para II,
"Punishment—Imprisonment for 7 years, or fine, or both—Non-cognizable—",
Bailable—Triable by Magistrate of the first class—Non-compoundable.,
State Amendment,
Uttar Pradesh,
"Imprisonment of 7 years, or fine or both—Cognizable—Non-bailable—Triable",
by Magistrate of the first class—Non-compoundable.,
"Vide Notification No. 777/VIII 9-4(2)—87, dated 31st July, 1989, published in",
"U.P. Gazette, Extra., Pt. A, Sec. (kha), dated 2nd August, 1989.",
–,
"1. Subs. by Act 26 of 1955, sec. 117 and Sch., for “transportation for life” (w.e.f.",
1-1-1956).,
Section 507. Criminal intimidation by an anonymous communication,
Whoever commits the offence of criminal intimidation by an anonymous,
"communication, or having taken precaution to conceal the name or abode of",
"the person from whom the threat comes, shall be punished with imprisonment",
"of either description for a term which may extend to two years, in addition to",
the punishment provided for the offence by the last preceding section.,
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 2 years, in addition to the punishment under",
above section—Non-cognizable—Bailable—Triable by Magistrate of the first,
class—Non-compoundable.,
Section 508. Act caused by inducing person to believe that he will be rendered an object,
of the Divine displeasure,
Whoever voluntarily causes or attempts to cause any person to do anything,
"which that person is not legally bound to do, or to omit to do anything which",
"he is legally entitled to do, by inducing or attempting to induce that person to",
believe that he or any person in whom he is interested will become or will be,
rendered by some act of the offender an object of Divine displeasure if he does,
"not do the thing which it is the object of the offender to cause him to do, or if",
"he does the thing which it is the object of the offender to cause him to omit,",
shall be punished with imprisonment of either description for a tem which,
"may extend to one year, or with fine, or with both.",
Illustrations,
"(a) A sits dharna at Z’s door with the intention of causing it to be believed that,",
"by so sitting, he renders Z an object of Divine displeasure. A has committed",
the offence defined in this section.,
"(b) A threatens Z that, unless Z performs a certain act, A will kill one of A’s",
"own children, under such circumstances that the killing would be believed to",
render Z an object of Divine displeasure. A has committed the offence defined,
in this section.,
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 1 year, or fine, or both—Non-cognizable—",
Bailable—Triable by any Magistrate—Compoundable by the person against,
whom the offence was committed.,
"Section 509. Word, gesture or act intended to insult the modesty of a woman",
"Whoever, intending to insult the modesty of any woman, utters any word,",
"makes any sound or gesture, or exhibits any object, intending that such word",
"or sound shall be heard, of that such gesture or object shall be seen, by such",
"woman, or intrudes upon the privacy of such woman, 1[shall be punished with",
"simple imprisonment for a term which may extend to three years, and also",
with fine.],
CLASSIFICATION OF OFFENCE,
"Punishment—Simple imprisonment for 1 year, or fine, or both—Cognizable—",
Bailable—Triable by any Magistrate—Compoundable by the woman whom it,
was intended to insult or whose privacy was intruded upon with the,
permission of the court.,
"1. Inserted by Section 509 of ‘The Criminal Law (Amendment) Act, 2013′",
Section 510. Misconduct in public by a drunken person,
"Whoever, in a state of intoxication, appears in any public place, or in any",
"place, or in any place which it is a trespass in him to enter, and there conducts",
"himself in such a manner as to cause annoyance to any person, shall be",
punished with simple imprisonment for a term which may extend to twenty-,
"four hours, or with fine which may extend to ten rupees, or with both.",
CLASSIFICATION OF OFFENCE,
"Punishment—Simple imprisonment for 24 hours, or fine of 10 rupees, or both",
—Non-cognizable—Bailable—Triable by any Magistrate—Non-compoundable.,
Section 511. Punishment for attempting to commit offences punishable with,
imprisonment for life or other imprisonment,
Whoever attempts to commit an offence punishable by this Code,
"with [imprisonment for life] or imprisonment, or to cause such an offence to",
1,
"be committed, and in such attempts does any act towards the commission of",
"the offence, shall, where no express provision is made by this Code for the",
"punishment of such attempt, be punished with [imprisonment of any",
2,
"description provided for the offence, for a term which may extend to one-half",
"of the imprisonment for life or, as the case may be, one-half of the longest",
"term of imprisonment provided for that offence], or with such fine as is",
"provided for the offence, or with both.",
Illustrations,
"(a) A makes an attempt to steal some jewels by breaking open a box, and finds",
"after so opening the box, that there is no jewel in it. He has done an act",
"towards the commission of theft, and therefore is guilty under this section.",
(b) A makes an attempt to pick the pocket of Z by thrusting his hand into Z’s,
pocket. A fails in the attempt in consequence of Z’s having nothing in his,
pocket. A is guilty under this section.,
CLASSIFICATION OF OFFENCE,
Punishment—Imprisonment for life or imprisonment not exceeding half of the,
"longest term provided for the offence, or fine, or both—According as the",
offence is cognizable or non-cognizable—According as the offence attempted,
by the offender is bailable or not—Triable by the court by which the offence,
attempted is triable—Non-compoundable.,
—-,
"1. Subs. by Act 26 of 1955, sec. 117 and Sch., for “transportation for life” (w.e.f.",
1-1-1956).,
"2. Subs. by Act 26 of 1955, sec. 117 and Sch., for certain original words (w.e.f.",
1-1-1956).,
"326A. Whoever causes permanent or partial damage or deformity to, or burns",
"or maims or disfigures or disables, any part or parts of the body of a person or",
causes grievous hurt by throwing acid on or by administering acid to that,
"person, or by using any other means with the intention of causing or with the",
"knowledge that he is likely to cause such injury or hurt, shall be punished with",
imprisonment of either description for a term which shall not be less than ten,
"years but which may extend to imprisonment for life, and with fine:",
Provided that such fine shall be just and reasonable to meet the medical,
expenses of the treatment of the victim:,
Provided further that any fine imposed under this section shall be paid to the,
victim.,
326B. Whoever throws or attempts to throw acid on any person or attempts to,
"administer acid to any person, or attempts to use any other means, with the",
intention of causing permanent or partial damage or deformity or burns or,
"maiming or disfigurement or disability or grievous hurt to that person, shall",
be punished with imprisonment of either description for a term which shall,
"not be less than five years but which may extend to seven years, and shall also",
be liable to fine.,
"Explanation 1.—For the purposes of section 326A and this section, “acid”",
includes any substance which has acidic or corrosive character or burning,
"nature, that is capable of causing bodily injury leading to scars or",
disfigurement or temporary or permanent disability.,
"Explanation 2.— For the purposes of section 326A and this section, permanent",
or partial damage or deformity shall not be required to be irreversible.,
"DISTRICT COURT, PATHANAMTHITTA",
Know the IPC (Indian Penal Code) Sections.,
Section1.(Introduction) Title and extant of operation of the Code,
Section 2.(Introduction) Punishment of offences committed within India,
"Section 3.(Introduction) Punishment of offences committed beyond, but which by law may be tried within, India",
Section 4.(Introduction) Extension of Code to extra-territorial offences,
Section 5.(Introduction) Certain laws not to be affected by this Act,
Section 6.(General explanations) Definitions in the Code to be understood subject to exceptions,
Section 7.(General explanations) Sense of expression once explained,
Section 8.(General explanations) Gender,
Section 9.(General explanations) Number,
"Section 10.(General explanations) Man, Woman",
Section 11.(General explanations) Person,
Section 12.(General explanations) Public,
Section 13.(General explanations) Queen,
Section 14. (General explanations)Servant of Government,
Section 15. (General explanations)British India,
Section 16. (General explanations)Government of India,
Section 17. (General explanations)Government,
Section 18.(General explanations) India,
Section 19.(General explanations) Judge,
Section 20.(General explanations) Court of Justice,
Section 21. (General explanations)Public Servant,
Section 22.(General explanations)Moveable property,
Section 23.(General explanations) Wrongful gain,
Section 24.(General explanations) Dishonestly,
Section 25. (General explanations)Fraudulently,
Section 26.(General explanations) Reason to believe,
"Section 27.(General explanations) Property in possession of wife, clerk or servant",
Section 28.(General explanations)Counterfeit,
Section 29.(General explanations)Document,
Section 29A.(General explanations)Electronic record,
Section 30. (General explanations)Valuable security,
Section 31.(General explanations) A will,
Section 32.(General explanations) Words referring to acts include illegal omissions,
Section 33.(General explanations) Act Omission,
Section 34.(General explanations) Acts done by several persons in furtherance of common intention,
Section 35.(General explanations) When such an act is criminal by reason of its being done with a criminal,
knowledge or intention,
"e­Court, Pathanamthitta District,Kerala. Page 1 of 15",
Section 36.(General explanations) Effect caused partly by act and partly by omission,
Section 37.(General explanations) Co-operation by doing one of several acts constituting an offence,
Section 38.(General explanations) Persons concerned in criminal act may be guilty of different offences,
Section 39.(General explanations) Voluntarily,
Section 40.(General explanations). Offence,
Section 41.(General explanations). Special law,
Section 42. (General explanations)Local law,
"Section 43.(General explanations) Illegal, Legally bound to do",
Section 44.(General explanations) Injury,
Section 45.(General explanations) Life,
Section 46. (General explanations)Death,
Section 47.(General explanations) Animal,
Section 48.(General explanations) Vessel,
"Section 49.(General explanations) Year, Month",
Section 50.(General explanations) Section,
Section 51. (General explanations)Oath,
Section 52. (General explanations)Good faith,
Section 52A. (General explanations) Harbour,
Section 53. Punishment,
Section 53A. Construction of reference to transportation,
Section 54. Commutation of sentence of death,
Section 55. Commutation of sentence of imprisonment for life,
Section 55A. Definition of appropriate Government,
Section 56. Sentence of Europeans and Americans to penal servitude.,
Section 57. Fractions of terms of punishment,
Section 58. Offenders sentenced to transportation how dealt with until transported,
Section 59. Transportation instead of imprisonment.,
Section 60. Sentence may be (in certain cases of imprisonment) wholly or partly rigorous or simple,
Section 61. Sentence of forfeiture of property,
"Section 62. Forfeiture of property, in respect of offenders punishable with death, transportation or imprisonment",
Section 63. Amount of fine,
Section 64. Sentence of imprisonment for non-payment of fine,
"Section 65. Limit to imprisonment for non-payment of fine, when imprisonment and fine awardable",
Section 66. Description of imprisonment for non-payment of fine,
Section 67. Imprisonment for non-payment of fine when offence punishable with fine only,
Section 68. Imprisonment to terminate on payment of fine,
Section 69. Termination of imprisonment on payment of proportional part of fine,
"Section 70. Fine levied within six years, or during imprisonment- Death not to discharge property from liability",
Section 71. Limit of punishment of offence made up of several offences,
"Section 72. Punishment of person guilty of one of several offences, the judgment stating that it is doubtful of",
which,
Section 73. Solitary confinement,
Section 74. Limit of solitary confinement,
"e­Court, Pathanamthitta District,Kerala. Page 2 of 15",
Section 75. Enhanced punishment for certain offences under Chapter XII or Chapter XVII after previous,
conviction,
"Section 76. Act done by a person bound, or by mistake of fact believing himself bound, by law",
Section 77. Act of Judge when acting judicially,
Section 78. Act done pursuant to the judgment or order of Court,
"Section 79. Act done by a person justified, or by mistake of fact believing himself justified, by law",
Section 80. Accident in doing a lawful act,
"Section 81. Act likely to cause harm, but done without criminal intent, and to prevent other harm",
Section 82. Act of a child under seven years of age,
Section 83. Act of a child above seven and under twelve of immature understanding,
Section 84. Act of a person of unsound mind,
Section 85. Act of a person incapable of judgment by reason of intoxication caused against his will,
Section 86. Offence requiring a particular intent of knowledge committed by one who is intoxicated,
"Section 87. Act not intended and not known to be likely to cause death or grievous hurt, done by consent",
"Section 88. Act not intended to cause death, done by consent in good faith for person’s benefit.",
"Section 89. Act done in good faith for benefit of child or insane person, by or by consent of guardian",
Section 90. Consent known to be given under fear or misconception,
Section 91. Exclusion of acts which are offences independently of harm caused,
Section 92. Act done in good faith for benefit of a person without consent,
Section 93. Communication made in good faith,
Section 94. Act to which a person is compelled by threats,
Section 95. Act causing slight harm,
Section 96. Things done in private defence,
Section 97. Right of private defence of the body and of property,
"Section 98. Right of private defence against the act of a person of unsound mind, etc.",
Section 99. Act against which there is no right of private defence,
Section 100. When the right of private defence of the body extends to causing death,
Section 101. When such right extends to causing any harm other than death,
Section 102. Commencement and continuance of the right of private defence of the body,
Section 103. When the right of private defence of property extends to causing death,
Section 104. When such right extends to causing any harm other than death,
Section 105. Commencement and continuance of the right of private defence of property,
Section 106. Right of private defence against deadly assault when there is risk of harm to innocent person,
Section 107. Abetment of a thing,
Section 108. Abettor,
Section 108A. Abetment in India of offences outside India,
"Section 109. Punishment of abetment if the act abetted is committed in consequence, and where no express",
provision is made for its punishment,
Section 110. Punishment of abetment if person abetted does act with different intention from that of abettor,
Section 111. Liability of abettor when one act abetted and different act done,
Section 112. Abettor when liable to cumulative punishment for act abetted and for act done,
"e­Court, Pathanamthitta District,Kerala. Page 3 of 15",
Section 113. Liability of abettor for an effect caused by the act abetted different from that intended by the,
abettor,
Section 114. Abettor present when offence is committed,
Section 115. Abetment of offence punishable with death or imprisonment for life-if offence not committed,
Section 116. Abetment of offence punishable with imprisonment-if offence be not committed,
Section 117. Abetting commission of offence by the public or by more than ten persons,
Section 118. Concealing design to commit offence punishable with death or imprisonment for life,
Section 119. Public servant concealing design to commit offence which it is his duty to prevent,
Section 120. Concealing design to commit offence punishable with imprisonment,
Section120A. Definition of criminal conspiracy.,
Section 120B. Punishment of criminal conspiracy,
"Section 121. Waging, or attempting to wage war, or abetting waging of war, against the Government of India",
Section 121A. Conspiracy to commit offences punishable by section 121,
"Section 122. Collecting arms, etc., with intention of waging war against the Government of India",
Section 123. Concealing with intent to facilitate design to wage war,
"Section 124. Assaulting President, Governor, etc., with intent to compel or restrain the exercise of any lawful",
power,
Section 124A. Sedition,
Section 125. Waging war against any Asiatic Power in alliance with the Government of India.,
Section 126. Committing depredation on territories of Power at peace with the Government of India,
Section 127. Receiving Property taken by war on depredation mention in Sections 125 and 126,
Section 128. Public servant voluntary allowing prisoner of State or war to escape,
Section 129. Public servant negligently suffering such prisoner to escape,
"Section 130. Aiding escape of, rescuing or harbouring such prisoner",
"Section 131. Abetting mutiny, or attempting to seduce a soldier, sailor or airman from his duty",
"Section 132. Abetment of mutiny, if mutiny is committed in consequence thereof",
"Section 133. Abetment of assault by soldier, sailor or airman on his superior officer, when in execution of his",
office,
"Section 134. Abetment of such assault, if the assault is committed",
"Section 135. Abetment of desertion of soldier, sailor or airman",
Section 136. Harbouring deserter,
Section 137. Deserter concealed on board merchant vessel through negligence of master,
"Section 138. Abetment of act of insubordination by soldier, sailor or airman",
Section 138A. Application of foregoing sections to the Indian Marine Service,
Section 139. Persons subject to certain Acts,
"Section 140. Wearing garb or carrying token used by soldier, sailor or airman",
Section 141. Unlawful assembly,
Section 142. Being member of unlawful assembly,
Section 143. Punishment,
Section 144. Joining unlawful assembly armed with deadly weapon,
"Section 145. Joining or continuing in unlawful assembly, knowing it has been commanded to disperse",
Section 146. Rioting,
Section 147. Punishment for rioting,
"e­Court, Pathanamthitta District,Kerala. Page 4 of 15",
"Section 148. Rioting, armed with deadly weapon",
Section 149. Every member of unlawful assembly guilty of offence committed in prosecution of common object,
"Section 150. Hiring, or conniving at hiring, of persons to join unlawful assembly",
Section 151. Knowingly joining or continuing in assembly of five or more persons after it has been commanded,
to disperse,
"Section 152. Assaulting or obstructing public servant when suppressing riot, etc.",
Section 153. Wantonly giving provocation with intent to cause riot-if rioting be committed-if not committed,
"Section 153A. Promoting enmity between different groups on grounds of religion, race, place of birth,",
"residence, language, etc., and doing acts prejudicial to maintenance of harmony",
"Section153AA. Punishment for knowingly carrying arms in any procession or organising, or holding or taking",
part in any mass drill or mass training with arms,
"Section 153B. Imputations, assertions prejudicial to national-integration",
Section 154. Owner or occupier of land on which an unlawful assembly is held,
Section 155. Liability of person for whose benefit riot is committed,
Section 156. Liability of agent of owner of occupier for whose benefit riot is committed,
Section 157. Harbouring persons hired for an unlawful assembly,
Section 158. Being hired to take part in an unlawful assembly or riot,
Section 159. Affray,
Section 160. Punishment for committing affray,
Section 161-165A. Repealed,
"Section 166. Public servant disobeying law, with intent to cause injury to any person",
Section 167. Public servant farming an incorrect document with intent to cause injury,
Section 168. Public servant unlawfully engaging in trade,
Section 169. Public servant unlawfully buying or bidding for property,
Section 170. Personating a public servant,
Section 171. Wearing garb or carrying token used by public servant with fraudulent intent,
"Section 171A. Candidate, Electoral right defined",
Section 171B. Bribery,
Section 171C. Undue influence at elections,
Section 171D. Personation at elections,
Section 171E. Punishment for bribery,
Section 171F. Punishment for undue influence or personation at an election,
Section 171G. False statement in connection with an election,
Section 171H. Illegal payments in connection with an election,
Section 171I. Failure to keep election accounts,
Section 172. Absconding to avoid service of summons or other proceeding,
"Section 173. Preventing service of summons or other proceeding, or preventing publication thereof",
Section 174. Non-attendance in obedience to an order form public servant,
Section 174A. Non-appearance in response to a proclamation under section 82 of Act 2 of 1974,
Section 175. Omission to produce document or electronic record to public servant by person legally bound to,
produce it.,
Section 176. Omission to give notice or information to public servant by person legally bound to give it,
"e­Court, Pathanamthitta District,Kerala. Page 5 of 15",
Section 177. Furnishing false information,
Section 178. Refusing oath or affirmation when duly required by public servant to make it,
Section 179. Refusing to answer public servant authorised to question,
Section 180. Refusing to sign statement,
Section 181. False statement on oath or affirmation to public servant or person authorised to administer an oath,
or affirmation,
"Section 182. False information, with intent to cause public servant to use his lawful power to the injury of",
another person,
Section 183. Resistance to the taking of property by the lawful authority of a public servant,
Section 184. Obstructing sale of property offered for sale by authority of public servant,
Section 185. Illegal purchase or bid for property offered for sale by authority of public servant,
Section 186. Obstructing public servant in discharge of public functions,
Section 187. Omission to assist public servant when bound by law to give assistance,
Section 188. Disobedience to order duly promulgated by public servant,
Section 189. Threat of injury to public servant,
Section 190. Threat of injury to induce person to refrain from applying for protection to public servant,
Section 191. Giving false evidence,
Section 192. Fabricating false evidence,
Section 193. Punishment for false evidence,
Section 194. Giving or fabricating false evidence with intent to procure conviction of capital offence,
Section 195. Giving or fabricating false evidence with intent to procure conviction of offence punishable with,
imprisonment for life or imprisonment,
Section 195A. Threatening any person to give false evidence,
Section 196. Using evidence known to be false,
Section 197. Issuing or signing false certificate,
Section 198. Using as true a certificate known to be false,
Section 199. False statement made in declaration which is by law receivable as evidence,
Section 200. Using as true such declaration knowing it to be false,
"Section 201. Causing disappearance of evidence of offence, or giving false information to screen offender",
Section 202. Intentional omission to give information of offence by person bound to inform,
Section 203. Giving false information respecting an offence committed,
Section 204. Destruction of document or electronic record to prevent its production as sevidence,
Section 205. False personation for purpose of act or proceeding in suit or prosecution,
Section 206. Fraudulent removal or concealment of property to prevent its seizure as forfeited or in execution,
Section 207. Fraudulent claim to property to prevent its seizure as forfeited or in execution,
Section 208. Fraudulently suffering decree for sum not due,
Section 209. Dishonestly making false claim in Court,
Section 210. Fraudulently obtaining decree for sum not due,
Section 211. False charge of offence made with intent to injure,
Section 212. Harbouring offender,
"Section 213. Taking gift, etc., to screen an offender from punishment",
Section 214. Offering gift or restoration of property in consideration of screening offender,
"e­Court, Pathanamthitta District,Kerala. Page 6 of 15",
"Section 215. Taking gift to help to recover stolen property, etc.",
Section 216. Harbouring offender who has escaped from custody or whose apprehension has been ordered,
Section 216A. Penalty for harbouring robbers or dacoits,
"Section 216B. Definition of “harbour” in sections 212, 216 and 216A",
Section 217. Public servant disobeying direction of law with intent to save person from punishment or property,
from forfeiture,
Section 218. Public servant framing incorrect record or writing with intent to save person from punishment or,
property from forfeiture,
"Section 219. Public servant in judicial proceeding corruptly making report, etc., contrary to law",
Section 220. Commitment for trial or confinement by person having authority who knows that he is acting,
contrary to law,
Section 221. Intentional omission to apprehend on the part of public servant bound to apprehend,
Section 222. Intentional omission to apprehend on the part of public servant bound to apprehend person under,
sentence or lawfully committed,
Section 223. Escape from confinement or custody negligently suffered by public servant,
Section 224. Resistance or obstruction by a person to his lawful apprehension,
Section 225. Resistance or obstruction to lawful apprehension of another person,
"Section 225A. Omission to apprehend, or sufferance of escape, on part of public servant, in cases not",
"otherwise, provided for",
"Section 225B. Resistance or obstruction to lawful apprehension, or escape or rescue in cases not otherwise",
provided for,
Section 226. Unlawful return from transportation,
Section 227. Violation of condition of remission of punishment,
Section 228. Intentional insult or interruption to public servant sitting in judicial proceeding,
Section 228A. Disclosure of identity of the victim of certain offences etc,
Section 229. Personation of a juror or assessor,
Section 229A. Failure by person released on bail or bond to appear in Court,
Section 230. Coin defined,
Section 231. Counterfeiting coin,
Section 232. Counterfeiting Indian coin,
Section 233. Making or selling instrument for counterfeiting coin,
Section 234. Making or selling instrument for counterfeiting Indian coin,
"Section 235. Possession of instrument, or material for the purpose of using the same for counterfeiting coin",
Section 236. Abetting in India the counterfeiting out of India of coin,
Section 237. Import or export of counterfeit coin,
Section 238. Import or export of counterfeits of the India coin,
"Section 239. Delivery of coin, possessed with knowledge that it is counterfeit",
"Section 240. Delivery of Indian coin, possessed with knowledge that it is counterfeit",
"Section 241. Delivery of coin as genuine, which, when first possessed, the deliverer did not know to be",
counterfeit,
Section 242. Possession of counterfeit coin by person who knew it to be counterfeit when he became,
possessed thereof,
Section 243. Possession of Indian coin by person who knew it to be counterfeit when he became possessed,
thereof,
"e­Court, Pathanamthitta District,Kerala. Page 7 of 15",
Section 244. Person employed in mint causing coin to be of different weight or composition from that fixed by,
law,
Section 245. Unlawfully taking coining instrument from mint,
Section 246. Fraudulently or dishonestly diminishing weight or altering composition of coin,
Section 247. Fraudulently or dishonestly diminishing weight or altering composition of Indian coin,
Section 248. Altering appearance of coin with intent that it shall pass as coin of different description,
Section 249. Altering appearance of Indian coin with intent that it shall pass as coin of different description,
"Section 250. Delivery of coin, possessed with knowledge that it is altered",
"Section 251. Delivery of Indian coin, possessed with knowledge that it is altered",
Section 252. Possession of coin by person who knew it to be altered when he became possessed thereof,
Section 253. Possession of Indian coin by person who knew it to be altered when he became possessed,
thereof,
"Section 254. Delivery of coin as genuine, which, when first possessed, the deliverer did not know to be altered",
Section 255. Counterfeiting Government stamp,
Section 256. Having possession of instrument or material for counterfeiting Government stamp,
Section 257. Making or selling instrument for counterfeiting Government stamp,
Section 259. Having possession of counterfeit Government stamp,
Section 260. Using as genuine a Government stamp known to be a counterfeit,
"Section 261. Effacing, writing from substance bearing Government stamp, or removing from document a stamp",
"used for it, with intent to cause loss to Government",
Section 262. Using Government stamp known to have been before used,
Section 263. Erasure of mark denoting that stamp has been used,
Section 263A. Prohibition of fictitious stamps,
Section 264. Fraudulent use of false instrument for weighing,
Section 265. Fraudulent use of false weight or measure,
Section 266. Being in possession of false weight or measure,
Section 267. Making or selling false weight or measure,
Section 268. Public nuisance,
Section 269. Negligent act likely to spread infection of disease dangerous to life,
Section 270. Malignant act likely to spread infection of disease dangerous to life,
Section 271. Disobedience to quarantine rule,
Section 272. Adulteration of food or drink intended for sale,
Section 273. Sale of noxious food or drink,
Section 274. Adulteration of drugs,
Section 275. Sale of adulterated drugs,
Section 276. Sale of drug as a different drug or preparation,
Section 277. Fouling water of public spring or reservoir,
Section 278. Making atmosphere noxious to health,
Section 279. Rash driving or riding on a public way,
Section 279. Rash driving or riding on a public way,
Section 280. Rash navigation of vessel,
"Section 281. Exhibition of false light, mark or buoy",
Section 282. Conveying person by water for hire in unsafe or overloaded vessel,
"e­Court, Pathanamthitta District,Kerala. Page 8 of 15",
Section 283. Danger or obstruction in public way or line of navigation,
Section 284. Negligent conduct with respect to poisonous substance,
Section 285. Negligent conduct with respect to fire or combustible matter,
Section 286. Negligent conduct with respect to explosive substance,
Section 287. Negligent conduct with respect to machinery,
Section 288. Negligent conduct with respect to pulling down or repairing buildings,
Section 289. Negligent conduct with respect to animal,
Section 290. Punishment for public nuisance in cases not otherwise provided for,
Section 291. Continuance of nuisance after injunction to discontinue,
"Section 292. Sale, etc., or obscene books, etc",
"Section 293. Sale, etc., of obscene objects to young person",
Section 294. Obscene acts and songs,
Section 294A. Keeping lottery office,
Section 295. Injuring or defiling place of worship with intent to insult the religion of any class,
"Section 295A. Deliberate and malicious acts, intended to outrage religious feelings or any class by insulting its",
religion or religious beliefs,
Section 296. Disturbing religious assembly,
"Section 297. Trespassing on burial places, etc.",
"Section 298. Uttering, words, etc., with deliberate intent to wound the religious feelings of any person",
Section 299. Culpable homicide,
Section 300. Murder,
Section 301. Culpable homicide by causing death of person other than person whose death was intended,
Section 302. Punishment for murder,
Section 303. Punishment for murder by life-convict,
Section 304. Punishment for culpable homicide not amounting to murder,
Section 304A. Causing death by negligence,
Section 304B. Dowery death,
Section 305. Abetment of suicide of child or insane person,
Section 306. Abetment of suicide,
Section 307. Attempt to murder,
Section 308. Attempt to commit culpable homicide,
Section 309. Attempt to commit suicide,
Section 310. Thug,
Section 311. Punishment,
Section 312. Causing miscarriage,
Section 313. Causing miscarriage without woman’s consent,
Section 314. Death caused by act done with intent to cause miscarriage-,
Section 315. Act done with intent to prevent child being born alive or to cause it to die after birth,
Section 316. Causing death of quick unborn child by act amounting to culpable homicide,
"Section 317. Exposure and abandonment of child under twelve years, by parent or person having care of it.",
Section 318. Concealment of birth by secret disposal of dead body.,
Section 319. Hurt.,
"e­Court, Pathanamthitta District,Kerala. Page 9 of 15",
Section 320. Grievous hurt.,
Section 321. Voluntarily causing hurt.,
Section 322. Voluntarily causing grievous hurt,
Section 323. Punishment for voluntarily causing hurt,
Section 324. Voluntarily causing hurt by dangerous weapons or means,
Section 325. Punishment for voluntarily causing grievous hurt,
Section 326. Voluntarily causing grievous hurt by dangerous weapons or means,
Section 326A. Acid Attack.,
Section 326B. Attempt to Acid Attack.,
"Section 327. Voluntarily causing hurt to extort property, or to constrain to an illegal act",
"Section 328. Causing hurt by means of poison, etc., with intent to commit an offence",
"Section 329. Voluntarily causing grievous hurt to extort property, or to constrain to an illegal act",
"Section 330. Voluntarily causing hurt to extort confession, or to compel restoration of property",
"Section 331. Voluntarily causing grievous hurt to extort confession, or to compel restoration of property",
Section 332. Voluntarily causing hurt to deter public servant from his duty,
Section 333. Voluntarily causing grievous hurt to deter public servant from his duty,
Section 334. Voluntarily causing hurt on provocation,
Section 335. Voluntarily causing grievous hurt on provocation,
Section 336. Act endangering life or personal safety of others,
Section 337. Causing hurt by act endangering life or personal safety of others,
Section 338. Causing grievous hurt by act endangering life or personal safety of others,
Section 339. Wrongful restraint,
Section 340. Wrongful confinement.,
Section 341. Punishment for wrongful restraint,
Section 342. Punishment for wrongful Confinement,
Section 343. Wrongful confinement for three or more days,
Section 344. Wrongful confinement for ten or more days,
Section 345. Wrongful confinement of person for whose liberation writ has been issued,
Section 346. Wrongful confinement in secret,
"Section 347. Wrongful confinement to extort property, or constrain to illegal act",
"Section 348. Wrongful confinement to extort confession, or compel restoration of property",
Section 349. Force,
Section 350. Criminal force,
Section 351. Assault,
Section 352. Punishment for assault or criminal force otherwise than on grave provocation,
Section 353. Assault or criminal force to deter public servant from discharge of his duty,
Section 354. Assault or criminal force to woman with intent to outrage her modesty,
Section 354 A. Sexual harassment.,
Section 354 B. Act with intendent to disrobe a woman,
Section 354 C. Voyevrism,
Section 354 D. Stalking,
"Section 355. Assault or criminal force with intent to dishonour person, otherwise than on grave provocation",
"e­Court, Pathanamthitta District,Kerala. Page 10 of 15",
Section 356. Assault or criminal force in attempt to commit theft of property carried by a person,
Section 357. Assault or criminal force in attempt wrongfully to confine a person,
Section 358. Assault or criminal force on grave provocation,
Section 359. Kidnapping,
Section 360. Kidnapping from India,
Section 361. Kidnapping from lawful guardianship,
Section 362. Abduction,
Section 363. Punishment for kidnapping,
Section 363A. Kidnapping or maiming a minor for purposes of begging,
Section 364. Kidnapping or abducting in order to murder,
"Section 364A. Kidnapping for ransom, etc.",
Section 365. Kidnapping or abducting with intent secretly and wrongfully to confine person,
"Section 366. Kidnapping, abducting or inducing woman to compel her marriage, etc.",
Section 366A. Procreation of minor girl,
Section 366B. Importation of girl from foreign country,
"Section 367. Kidnapping or abducting in order to subject person to grievous hurt, slavery, etc.",
"Section 368. Wrongfully concealing or keeping in confinement, kidnapped or abducted person",
Section 369. Kidnapping or abducting child under ten years with intent to steal from its person,
Section 370. Substitution of new sections 370 and 370A for section 370.,
Section 371. Habitual dealing in slaves,
"Section 372. Selling minor for purposes of prostitution, etc.",
"Section 373. Buying minor for purposes of prostitution, etc.",
Section 374. Unlawful compulsory labour,
Section 375. Rape,
Section 376. Punishment for rape,
Section 376A. Intercourse by a man with his wife during separation,
Section 376B. Intercourse by public servant with woman is his custody,
"Section 376C. Intercourse by superintendent of jail, remand home, etc.",
Section 376D. Intercourse by any member of the management or staff of a hospital with any woman in that,
hospital,
Section 377. Unnatural offences,
Section 378. Theft,
Section 379. Punishment for theft,
"Section 380. Theft in dwelling house, etc",
"Section 382. Theft after preparation made for causing death, hurt or restraint in order to the committing of the",
theft,
Section 383. Extortion,
Section 384. Punishment for extortion,
Section 385. Putting person in fear of injury in order to commit extortion,
Section 386. Extortion by putting a person in fear of death or grievous hurt,
"Section 387. Putting person in fear of death or of grievous hurt, in order to commit extortion",
"e­Court, Pathanamthitta District,Kerala. Page 11 of 15",
"Section 388. Extortion by threat of accusation of an offence punishable with death or imprisonment for life, etc.",
"Section 389. Putting person in fear of accusation of offence, in order to commit extortion",
Section 390. Robbery,
Section 391. Dacoity,
Section 392. Punishment for robbery,
Section 393. Attempt to commit robbery,
Section 394. Voluntarily causing hurt in committing robbery,
Section 395. Punishment for dacoity,
Section 396. Dacoity with murder,
"Section 397. Robbery, or dacoity, with attempt to cause death or grievous hurt",
Section 398. Attempt to commit robbery or dacoity when armed with deadly weapon,
Section 399. Making preparation to commit dacoity,
Section 400. Punishment for belonging to gang of dacoits,
Section 401. Punishment for belonging to gang of thieves,
Section 402. Assembling for purpose of committing dacoity,
Section 403. Dishonest misappropriation of property,
Section 404. Dishonest misappropriation of property possessed by deceased person at the time of his death,
Section 405. Criminal breach of trust,
Section 406. Punishment for criminal breach of trust,
"Section 407. Criminal breach of trust by carrier, etc.",
Section 408. Criminal breach of trust by clerk or servant,
"Section 409. Criminal breach of trust by public servant, or by banker, merchant or agent",
Section 410. Stolen Property,
Section 411. Dishonestly receiving stolen property,
Section 412. Dishonestly receiving property stolen in the commission of a dacoity,
Section 413. Habitually dealing in stolen property,
Section 414. Assisting in concealment of stolen property,
Section 415. Cheating,
Section 416. Cheating by personation,
Section 417. Punishment for cheating,
Section 418. Cheating with knowledge that wrongful loss may ensue to person whose interest offender is,
bound to protect,
Section 419. Punishment for cheating by personation,
Section 420. Cheating and dishonestly inducing delivery of property,
Section 421. Dishonest or fraudulent removal or concealment of property to prevent distribution among,
creditors,
Section 422. Dishonestly or fraudulently preventing debt being available for creditors,
Section 423. Dishonest or fraudulent execution of deed of transfer containing false statement of consideration,
Section 424. Dishonest or fraudulent removal or concealment of property,
Section 425. Mischief,
Section 426. Punished for mischief,
"e­Court, Pathanamthitta District,Kerala. Page 12 of 15",
Section 427. Mischief causing damage to the amount of fifty rupees,
Section 428. Mischief by killing or maiming animal of the value of ten rupees,
"Section 429. Mischief by killing or maiming cattle, etc., of any value or any animal of the value of fifty rupees",
Section 430. Mischief by injury to works of irrigation or by wrongfully diverting water,
"Section 431. Mischief by injury to public road, bridge, river or channel",
Section 432. Mischief by causing inundation or obstruction to public drainage attended with damage,
"Section 433. Mischief by destroying, moving or rendering less useful a light-house or sea-mark",
"Section 434. Mischief by destroying or moving, etc., a land- mark fixed by public authority",
Section 435. Mischief by fire or explosive substance with intent to cause damage to amount of one hundred or,
(in case of agricultural produce) ten rupees,
"Section 436. Mischief by fire or explosive substance with intent to destroy house, etc.",
Section 437. Mischief with intent to destroy or make unsafe a decked vessel or one of twenty tons burden,
Section 438. Punishment for the mischief described in section 437 committed by fire or explosive substance,
"Section 439. Punishment for intentionally running vessel aground or ashore with intent to commit theft, etc",
Section 440. Mischief committed after preparation made for causing death or hurt,
Section 441. Criminal trespass,
Section 442. House trespass,
Section 443. Lurking house-trespass,
Section 444. Lurking house-trespass by night,
Section 445. Housing breaking,
Section 446. House-breaking by night,
Section 447. Punishment for criminal trespass,
Section 448. Punishment for house-trespass,
Section 449. House-trespass in order to commit offence punishable with death,
Section 450. House-trespass in order to commit offence punishable with imprisonment for life,
Section 451. House-trespass in order to commit offence punishable with imprisonment,
"Section 452. House-trespass after preparation for hurt, assault or wrongful restraint",
Section 453. Punishment for lurking house-trespass or house-breaking,
Section 454. Lurking house-trespass or house-breaking in order to commit offence punishable with,
imprisonment,
"Section 455. Lurking house-trespass or house-breaking after preparation for hurt, assault or wrongful restraint",
Section 456. Punishment for lurking house-trespass or house-breaking by night,
Section 457. Lurking house trespass or house-breaking by night in order to commit offence punishable with,
imprisonment,
"Section 458. Lurking house-trespass or house-breaking by night after preparation for hurt, assault, or wrongful",
restraint,
Section 459. Grievous hurt caused whilst committing lurking house trespass or house-breaking,
Section 460. All persons jointly concerned in lurking house-trespass or house-breaking by night punishable,
where death or grievous hurt caused by one of them,
Section 461. Dishonestly breaking open receptacle containing property,
Section 462. Punishment for same offence when committed by person entrusted with custody,
Section463. Forgery,
Section 464. Making a false document,
"e­Court, Pathanamthitta District,Kerala. Page 13 of 15",
Section 465. Punishment for forgery,
"Section 466. Forgery of record of court or of public register, etc.",
"Section 467. Forgery of valuable security, will, etc.",
Section 468. Forgery for purpose of cheating,
Section 469. Forgery for purpose of harming reputation,
Section 470. Forged document or electronic record,
Section 471. Using as genuine a forged document or electronic record,
"Section 472. Making or possessing counterfeit seal, etc., with intent to commit forgery punishable under section",
467,
"Section 473. Making or possessing counterfeit seal, etc., with intent to commit forgery punishable otherwise",
"Section 474. Having possession of document described in Section 466 or 467, knowing it to be forged and",
intending to use it as genuine,
"Section 475. Counterfeiting device or mark used for authenticating documents described in Section 467, or",
possessing counterfeit marked material,
Section 476. Counterfeiting device or mark used for authenticating docu ments other than those described in,
"section 467, or possessing counterfeit marked material",
"Section 477. Fraudulent cancellation, destruction, etc., of will, authority to adopt, or valuable security",
Section 477A. Falsification of accounts,
Section 478. Trade marks,
Section 479. Property mark,
Section 480. Using a false trade mark,
Section 481. Using a false property mark,
Section 482. Punishment for using a false property mark,
Section 483. Counterfeiting a property mark used by another,
Section 484. Counterfeiting a mark used by a public servant,
Section 485. Making or possession of any instrument for counterfeiting a property mark,
Section 486. Selling goods marked with a counterfeit property mark,
Section 487. Making a false mark upon any receptacle containing goods,
Section 488. Punishment for making use of any such false mark,
Section 489. Tampering with property mark with intent to cause injury,
Section 489A. Counterfeiting currency-notes or bank-notes,
"Section 489B. Using as genuine, forged or counterfeit currency-notes or bank-notes",
Section 489C. Possession of forged or counterfeit currency-notes or bank-notes,
Section 489D. Making or possessing instruments or materials for forgoing or counterfeiting currency-notes or,
bank-notes,
Section 489E. Making or using documents resembling currency-notes or bank-notes,
Section 490. Breach of contract of service during voyage or journey,
Section 491. Breach of contract to attend on and supply wants of helpless person,
Section 492. Breach of contract to serve at distant place to which servant is conveyed at master’s expense,
Section 493. Cohabitation caused by a man deceitfully inducing a belief of lawful marriage,
Section 494. Marrying again during lifetime of husband or wife,
Section 495. Same offence with concealment of former marriage from person with whom subsequent marriage,
is contracted,
"e­Court, Pathanamthitta District,Kerala. Page 14 of 15",
Section 496. Marriage ceremony fraudulently gone through without lawful marriage,
Section 497. Adultery,
Section 498. Enticing or taking away or detaining with criminal intent a married woman,
Section 499. Defamation,
Section 500. Punishment for defamation,
Section 501. Printing or engraving matter known to be defamatory,
Section 502. Sale of printed or engraved substance containing defamatory matter,
Section 503. Criminal intimidation,
Section 504. Intentional insult with intent to provoke breach of the peace,
Section 505. Statements conducing to public mischief,
Section 506. Punishment for criminal intimidation,
Section 507. Criminal intimidation by an anonymous communication,
Section 508. Act caused by inducing person to believe that he will be rendered an object of the Divine,
displeasure,
"Section 509. Word, gesture or act intended to insult the modesty of a woman",
Section 510. Misconduct in public by a drunken person,
Section511. Punishment for attempting to commit offences punishable with imprisonment for life or other,
imprisonment,
This is Sections in IPC (Indian Penal Code) and the titles only. If you want to download the Indian Penal,
"Code (IPC) full PDF version click the Rules & Regulations in the Official website of District Court,",
"Pathanmathitta, Kerala, www.ecourts.gov.in/kerala/pathanamthitta",
"e­Court, Pathanamthitta District,Kerala. Page 15 of 15",
"e­Court, Pathanamthitta District,Kerala. Page 16 of 15",
Bare Acts & Rules,
Free Downloadable Formats,
Hello Good People !,
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LLaaLLttaaeettsseettssLLttaaLLwwaawwss..sscc..ooccmmoomm,
1,
"INDIAN PENAL CODE,1860",
Introduction,
List of Amending Acts and Adaption Orders,
Preamble,
CHAPTER I – INTRODUCTION,
• Section 1. Title and extent of operation of the Code,
• Section 2. Punishment of offences committed within India,
"• Section 3. Punishment of offences committed beyond, but which by law may be tried within,",
India,
• Section 4. Extension of Code to extra-territorial offences,
• Section 5. Certain laws not to be affected by this Act,
CHAPTER II – GENERAL EXPLANATIONS,
• Section 6. Definitions in the Code to be understood subject to exceptions,
• Section 7. Sense of expression once explained,
• Section 8. Gender,
• Section 9. Number,
"• Section 10. Man, Woman",
• Section 11. Person,
• Section 12. Public,
• Section 13. Queen,
• Section 14. Servant of Government,
• Section 15. British India,
• Section 16. Government of India,
• Section 17. Government,
• Section 18. India,
• Section 19. Judge,
• Section 20. Court of Justice,
• Section 21. Public Servant,
• Section 22. Moveable property,
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• Section 23. Wrongful gain,
• Section 24. Dishonestly,
• Section 25. Fraudulently,
• Section 26. Reason to believe,
"• Section 27. Property in possession of wife, clerk or servant",
• Section 28. Counterfeit,
• Section 29. Document,
• Section 29A. Electronic record,
• Section 30. Valuable security,
• Section 31. A will,
• Section 32. Words referring to acts include illegal omissions,
• Section 33. Act Omission,
• Section 34. Acts done by several persons in furtherance of common intention,
• Section 35. When such an act is criminal by reason of its being done with a criminal knowledge,
or intention,
• Section 36. Effect caused partly by act and partly by omission,
• Section 37. Co-operation by doing one of several acts constituting an offence,
• Section 38. Persons concerned in criminal act may be guilty of different offences,
• Section 39. Voluntarily,
• Section 40. Offence,
• Section 41. Special law,
• Section 42. Local law,
"• Section 43. Illegal, Legally bound to do",
• Section 44. Injury,
• Section 45. Life,
• Section 46. Death,
• Section 47. Animal,
• Section 48. Vessel,
"• Section 49. Year, Month",
• Section 50. Section,
• Section 51. Oath,
• Section 52. Good faith,
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• Section 52A. Harbour,
CHAPTER III – OF PUNISHMENTS,
• Section 53. Punishment,
• Section 53A. Construction of reference to transportation,
• Section 54. Commutation of sentence of death,
• Section 55. Commutation of sentence of imprisonment for life,
• Section 55A. Definition of appropriate Government,
• Section 56. Sentence of Europeans and Americans to penal servitude.,
• Section 57. Fractions of terms of punishment,
• Section 58. Offenders sentenced to transportation how dealt with until transported,
• Section 59. Transportation instead of imprisonment.,
• Section 60. Sentence may be (in certain cases of imprisonment) wholly or partly rigorous or,
simple,
• Section 61. Sentence of forfeiture of property,
"• Section 62. Forfeiture of property, in respect of offenders punishable with death, transportation",
or imprisonment,
• Section 63. Amount of fine,
• Section 64. Sentence of imprisonment for non-payment of fine,
"• Section 65. Limit to imprisonment for non-payment of fine, when imprisonment and fine",
awardable,
• Section 66. Description of imprisonment for non-payment of fine,
• Section 67. Imprisonment for non-payment of fine when offence punishable with fine only,
• Section 68. Imprisonment to terminate on payment of fine,
• Section 69. Termination of imprisonment on payment of proportional part of fine,
"• Section 70. Fine levied within six years, or during imprisonment- Death not to discharge",
property from liability,
• Section 71. Limit of punishment of offence made up of several offences,
"• Section 72. Punishment of person guilty of one of several offences, the judgment stating that it",
is doubtful of which,
• Section 73. Solitary confinement,
• Section 74. Limit of solitary confinement,
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• Section 75. Enhanced punishment for certain offences under Chapter XII or Chapter XVII after,
previous conviction,
CHAPTER IV – GENERAL EXCEPTIONS,
"• Section 76. Act done by a person bound, or by mistake of fact believing himself bound, by law",
• Section 77. Act of Judge when acting judicially,
• Section 78. Act done pursuant to the judgment or order of Court,
"• Section 79. Act done by a person justified, or by mistake of fact believing himself justified, by",
law,
• Section 80. Accident in doing a lawful act,
"• Section 81. Act likely to cause harm, but done without criminal intent, and to prevent other",
harm,
• Section 82. Act of a child under seven years of age,
• Section 83. Act of a child above seven and under twelve of immature understanding,
• Section 84. Act of a person of unsound mind,
• Section 85. Act of a person incapable of judgment by reason of intoxication caused against his,
will,
• Section 86. Offence requiring a particular intent of knowledge committed by one who is,
intoxicated,
"• Section 87. Act not intended and not known to be likely to cause death or grievous hurt, done",
by consent,
"• Section 88. Act not intended to cause death, done by consent in good faith for person’s benefit.",
"• Section 89. Act done in good faith for benefit of child or insane person, by or by consent of",
guardian,
• Section 90. Consent known to be given under fear or misconception,
• Section 91. Exclusion of acts which are offences independently of harm caused,
• Section 92. Act done in good faith for benefit of a person without consent,
• Section 93. Communication made in good faith,
• Section 94. Act to which a person is compelled by threats,
Of the Right of Private Defence,
• Section 95. Act causing slight harm,
• Section 96. Things done in private defence,
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• Section 97. Right of private defence of the body and of property,
"• Section 98. Right of private defence against the act of a person of unsound mind, etc.",
• Section 99. Act against which there is no right of private defence,
• Section 100. When the right of private defence of the body extends to causing death,
• Section 101. When such right extends to causing any harm other than death,
• Section 102. Commencement and continuance of the right of private defence of the body,
• Section 103. When the right of private defence of property extends to causing death,
• Section 104. When such right extends to causing any harm other than death,
• Section 105. Commencement and continuance of the right of private defence of property,
• Section 106. Right of private defence against deadly assault when there is risk of harm to,
innocent person,
CHAPTER V – OF ABETMENT,
• Section 107. Abetment of a thing,
• Section 108. Abettor,
• Section 108A. Abetment in India of offences outside India,
"• Section 109. Punishment of abetment if the act abetted is committed in consequence, and where",
no express provision is made for its punishment,
• Section 110. Punishment of abetment if person abetted does act with different intention from,
that of abettor,
• Section 111. Liability of abettor when one act abetted and different act done,
• Section 112. Abettor when liable to cumulative punishment for act abetted and for act done,
• Section 113. Liability of abettor for an effect caused by the act abetted different from that,
intended by the abettor,
• Section 114. Abettor present when offence is committed,
• Section 115. Abetment of offence punishable with death or imprisonment for life-if offence,
not committed,
• Section 116. Abetment of offence punishable with imprisonment-if offence be not committed,
• Section 117. Abetting commission of offence by the public or by more than ten persons,
• Section 118. Concealing design to commit offence punishable with death or imprisonment for,
life,
• Section 119. Public servant concealing design to commit offence which it is his duty to prevent,
• Section 120. Concealing design to commit offence punishable with imprisonment,
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CHAPTER VA – CRIMINAL CONSPIRACY,
• 120A. Definition of criminal conspiracy.,
• Section 120B. Punishment of criminal conspiracy,
CHAPTER VI – OF OFFENCES AGAINST THE STATE,
"• Section 121. Waging, or attempting to wage war, or abetting waging of war, against the",
Government of India,
• Section 121A. Conspiracy to commit offences punishable by section 121,
"• Section 122. Collecting arms, etc., with intention of waging war against the Government of",
India,
• Section 123. Concealing with intent to facilitate design to wage war,
"• Section 124. Assaulting President, Governor, etc., with intent to compel or restrain the exercise",
of any lawful power,
• Section 124A. Sedition,
• Section 125. Waging war against any Asiatic Power in alliance with the Government of India.,
• Section 126. Committing depredation on territories of Power at peace with the Government of,
India,
• Section 127. Receiving Property taken by war on depredation mention in Sections 125 and 126,
• Section 128. Public servant voluntary allowing prisoner of State or war to escape,
• Section 129. Public servant negligently suffering such prisoner to escape,
"• Section 130. Aiding escape of, rescuing or harbouring such prisoner",
"CHAPTER VII – OF OFFENCES RELATING TO THE ARMY, NAVY AND AIR FORCE",
"• Section 131. Abetting mutiny, or attempting to seduce a soldier, sailor or airman from his duty",
"• Section 132. Abetment of mutiny, if mutiny is committed in consequence thereof",
"• Section 133. Abetment of assault by soldier, sailor or airman on his superior officer, when in",
execution of his office,
"• Section 134. Abetment of such assault, if the assault is committed",
"• Section 135. Abetment of desertion of soldier, sailor or airman",
• Section 136. Harbouring deserter,
• Section 137. Deserter concealed on board merchant vessel through negligence of master,
"• Section 138. Abetment of act of insubordination by soldier, sailor or airman",
• Section 138A. Application of foregoing sections to the Indian Marine Service,
• Section 139. Persons subject to certain Acts,
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"• Section 140. Wearing garb or carrying token used by soldier, sailor or airman",
CHAPTER VIII – OF OFFENCES AGAINST THE PUBLIC TRANQUILLITY,
• Section 141. Unlawful assembly,
• Section 142. Being member of unlawful assembly,
• Section 143. Punishment,
• Section 144. Joining unlawful assembly armed with deadly weapon,
"• Section 145. Joining or continuing in unlawful assembly, knowing it has been commanded to",
disperse,
• Section 146. Rioting,
• Section 147. Punishment for rioting,
"• Section 148. Rioting, armed with deadly weapon",
• Section 149. Every member of unlawful assembly guilty of offence committed in prosecution,
of common object,
"• Section 150. Hiring, or conniving at hiring, of persons to join unlawful assembly",
• Section 151. Knowingly joining or continuing in assembly of five or more persons after it has,
been commanded to disperse,
"• Section 152. Assaulting or obstructing public servant when suppressing riot, etc.",
• Section 153. Wantonly giving provocation with intent to cause riot-if rioting be committed-if,
not committed,
"• Section 153A. Promoting enmity between different groups on grounds of religion, race, place",
"of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony",
"• Section 153AA. Punishment for knowingly carrying arms in any procession or organising, or",
holding or taking part in any mass drill or mass training with arms,
"• Section 153B. Imputations, assertions prejudicial to national-integration",
• Section 154. Owner or occupier of land on which an unlawful assembly is held,
• Section 155. Liability of person for whose benefit riot is committed,
• Section 156. Liability of agent of owner of occupier for whose benefit riot is committed,
• Section 157. Harbouring persons hired for an unlawful assembly,
• Section 158. Being hired to take part in an unlawful assembly or riot,
• Section 159. Affray,
• Section 160. Punishment for committing affray,
CHAPTER IX – OF OFFENCES BY OR RELATING TO PUBLIC SERVANTS,
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• Section 161-165A. Repealed,
"• Section 166. Public servant disobeying law, with intent to cause injury to any person",
• Section 166A. (Punishment for non recording of information),
• Section 166B. Punishment for non treatment of victim,
• Section 167. Public servant farming an incorrect document with intent to cause injury,
• Section 168. Public servant unlawfully engaging in trade,
• Section 169. Public servant unlawfully buying or bidding for property,
• Section 170. Personating a public servant,
• Section 171. Wearing garb or carrying token used by public servant with fraudulent intent,
CHAPTER IXA – OF OFFENCES RELATING TO ELECTIONS,
"• Section 171A. Candidate, Electoral right defined",
• Section 171B. Bribery,
• Section 171C. Undue influence at elections,
• Section 171D. Personation at elections,
• Section 171E. Punishment for bribery,
• Section 171F. Punishment for undue influence or personation at an election,
• Section 171G. False statement in connection with an election,
• Section 171H. Illegal payments in connection with an election,
• Section 171I. Failure to keep election accounts,
CHAPTER X – OF CONTEMPTS OF THE LAWFUL AUTHORITY OF PUBLIC,
SERVANTS,
• Section 172. Absconding to avoid service of summons or other proceeding,
"• Section 173. Preventing service of summons or other proceeding, or preventing publication",
thereof,
• Section 174. Non-attendance in obedience to an order form public servant,
• Section 174A. Non-appearance in response to a proclamation under section 82 of Act 2 of 1974,
• Section 175. Omission to produce document or electronic record to public servant by person,
legally bound to produce it.,
• Section 176. Omission to give notice or information to public servant by person legally bound,
to give it,
• Section 177. Furnishing false information,
• Section 178. Refusing oath or affirmation when duly required by public servant to make it,
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• Section 179. Refusing to answer public servant authorised to question,
• Section 180. Refusing to sign statement,
• Section 181. False statement on oath or affirmation to public servant or person authorised to,
administer an oath or affirmation,
"• Section 182. False information, with intent to cause public servant to use his lawful power to",
the injury of another person,
• Section 183. Resistance to the taking of property by the lawful authority of a public servant,
• Section 184. Obstructing sale of property offered for sale by authority of public servant,
• Section 185. Illegal purchase or bid for property offered for sale by authority of public servant,
• Section 186. Obstructing public servant in discharge of public functions,
• Section 187. Omission to assist public servant when bound by law to give assistance,
• Section 188. Disobedience to order duly promulgated by public servant,
• Section 189. Threat of injury to public servant,
• Section 190. Threat of injury to induce person to refrain from applying for protection to public,
servant,
CHAPTER XI – OF FALSE EVIDENCE AND OFFENCES AGAINST PUBLIC JUSTICE,
• Section 191. Giving false evidence,
• Section 192. Fabricating false evidence,
• Section 193. Punishment for false evidence,
• Section 194. Giving or fabricating false evidence with intent to procure conviction of capital,
offence,
• Section 195. Giving or fabricating false evidence with intent to procure conviction of offence,
punishable with imprisonment for life or imprisonment,
• Section 195A. Threatening any person to give false evidence,
• Section 196. Using evidence known to be false,
• Section 197. Issuing or signing false certificate,
• Section 198. Using as true a certificate known to be false,
• Section 199. False statement made in declaration which is by law receivable as evidence,
• Section 200. Using as true such declaration knowing it to be false,
"• Section 201. Causing disappearance of evidence of offence, or giving false information to",
screen offender,
• Section 202. Intentional omission to give information of offence by person bound to inform,
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• Section 203. Giving false information respecting an offence committed,
• Section 204. Destruction of document or electronic record to prevent its production as,
sevidence,
• Section 205. False personation for purpose of act or proceeding in suit or prosecution,
• Section 206. Fraudulent removal or concealment of property to prevent its seizure as forfeited,
or in execution,
• Section 207. Fraudulent claim to property to prevent its seizure as forfeited or in execution,
• Section 208. Fraudulently suffering decree for sum not due,
• Section 209. Dishonestly making false claim in Court,
• Section 210. Fraudulently obtaining decree for sum not due,
• Section 211. False charge of offence made with intent to injure,
• Section 212. Harbouring offender,
"• Section 213. Taking gift, etc., to screen an offender from punishment",
• Section 214. Offering gift or restoration of property in consideration of screening offender,
"• Section 215. Taking gift to help to recover stolen property, etc.",
• Section 216. Harbouring offender who has escaped from custody or whose apprehension has,
been ordered,
• Section 216A. Penalty for harbouring robbers or dacoits,
"• Section 216B. Definition of “harbour” in sections 212, 216 and 216A",
• Section 217. Public servant disobeying direction of law with intent to save person from,
punishment or property from forfeiture,
• Section 218. Public servant framing incorrect record or writing with intent to save person from,
punishment or property from forfeiture,
"• Section 219. Public servant in judicial proceeding corruptly making report, etc., contrary to",
law,
• Section 220. Commitment for trial or confinement by person having authority who knows that,
he is acting contrary to law,
• Section 221. Intentional omission to apprehend on the part of public servant bound to,
apprehend,
• Section 222. Intentional omission to apprehend on the part of public servant bound to,
apprehend person under sentence or lawfully committed,
• Section 223. Escape from confinement or custody negligently suffered by public servant,
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11,
• Section 224. Resistance or obstruction by a person to his lawful apprehension,
• Section 225. Resistance or obstruction to lawful apprehension of another person,
"• Section 225A. Omission to apprehend, or sufferance of escape, on part of public servant, in",
"cases not otherwise, provided for",
"• Section 225B. Resistance or obstruction to lawful apprehension, or escape or rescue in cases",
not otherwise provided for,
• Section 226. Unlawful return from transportation,
• Section 227. Violation of condition of remission of punishment,
• Section 228. Intentional insult or interruption to public servant sitting in judicial proceeding,
• Section 228A. Disclosure of identity of the victim of certain offences etc,
• Section 229. Personation of a juror or assessor,
• Section 229A. Failure by person released on bail or bond to appear in Court,
CHAPTER XII – OF OFFENCES RELATING TO COIN AND GOVERNMENT STAMPS,
• Section 230. Coin defined,
• Section 231. Counterfeiting coin,
• Section 232. Counterfeiting Indian coin,
• Section 233. Making or selling instrument for counterfeiting coin,
• Section 234. Making or selling instrument for counterfeiting Indian coin,
"• Section 235. Possession of instrument, or material for the purpose of using the same for",
counterfeiting coin,
• Section 236. Abetting in India the counterfeiting out of India of coin,
• Section 237. Import or export of counterfeit coin,
• Section 238. Import or export of counterfeits of the India coin,
"• Section 239. Delivery of coin, possessed with knowledge that it is counterfeit",
"• Section 240. Delivery of Indian coin, possessed with knowledge that it is counterfeit",
"• Section 241. Delivery of coin as genuine, which, when first possessed, the deliverer did not",
know to be counterfeit,
• Section 242. Possession of counterfeit coin by person who knew it to be counterfeit when he,
became possessed thereof,
• Section 243. Possession of Indian coin by person who knew it to be counterfeit when he became,
possessed thereof,
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• Section 244. Person employed in mint causing coin to be of different weight or composition,
from that fixed by law,
• Section 245. Unlawfully taking coining instrument from mint,
• Section 246. Fraudulently or dishonestly diminishing weight or altering composition of coin,
• Section 247. Fraudulently or dishonestly diminishing weight or altering composition of Indian,
coin,
• Section 248. Altering appearance of coin with intent that it shall pass as coin of different,
description,
• Section 249. Altering appearance of Indian coin with intent that it shall pass as coin of different,
description,
"• Section 250. Delivery of coin, possessed with knowledge that it is altered",
"• Section 251. Delivery of Indian coin, possessed with knowledge that it is altered",
• Section 252. Possession of coin by person who knew it to be altered when he became possessed,
thereof,
• Section 253. Possession of Indian coin by person who knew it to be altered when he became,
possessed thereof,
"• Section 254. Delivery of coin as genuine, which, when first possessed, the deliverer did not",
know to be altered,
• Section 255. Counterfeiting Government stamp,
• Section 256. Having possession of instrument or material for counterfeiting Government stamp,
• Section 257. Making or selling instrument for counterfeiting Government stamp,
• Section 259. Having possession of counterfeit Government stamp,
• Section 260. Using as genuine a Government stamp known to be a counterfeit,
"• Section 261. Effacing, writing from substance bearing Government stamp, or removing from",
"document a stamp used for it, with intent to cause loss to Government",
• Section 262. Using Government stamp known to have been before used,
• Section 263. Erasure of mark denoting that stamp has been used,
• Section 263A. Prohibition of fictitious stamps,
CHAPTER XIII – OF OFFENCES RELATING TO WEIGHTS AND MEASURES,
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• Section 264. Fraudulent use of false instrument for weighing,
• Section 265. Fraudulent use of false weight or measure,
• Section 266. Being in possession of false weight or measure,
• Section 267. Making or selling false weight or measure,
"CHAPTER XIV – OF OFFENCES AFFECTING THE PUBLIC HEALTH, SAFETY,",
"CONVENIENCE, DECENCY AND MORALS",
• Section 268. Public nuisance,
• Section 269. Negligent act likely to spread infection of disease dangerous to life,
• Section 270. Malignant act likely to spread infection of disease dangerous to life,
• Section 271. Disobedience to quarantine rule,
• Section 272. Adulteration of food or drink intended for sale,
• Section 273. Sale of noxious food or drink,
• Section 274. Adulteration of drugs,
• Section 275. Sale of adulterated drugs,
• Section 276. Sale of drug as a different drug or preparation,
• Section 277. Fouling water of public spring or reservoir,
• Section 278. Making atmosphere noxious to health,
• Section 279. Rash driving or riding on a public way,
• Section 279. Rash driving or riding on a public way,
• Section 280. Rash navigation of vessel,
"• Section 281. Exhibition of false light, mark or buoy",
• Section 282. Conveying person by water for hire in unsafe or overloaded vessel,
• Section 283. Danger or obstruction in public way or line of navigation,
• Section 284. Negligent conduct with respect to poisonous substance,
• Section 285. Negligent conduct with respect to fire or combustible matter,
• Section 286. Negligent conduct with respect to explosive substance,
• Section 287. Negligent conduct with respect to machinery,
• Section 288. Negligent conduct with respect to pulling down or repairing buildings,
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• Section 289. Negligent conduct with respect to animal,
• Section 290. Punishment for public nuisance in cases not otherwise provided for,
• Section 291. Continuance of nuisance after injunction to discontinue,
"• Section 292. Sale, etc., or obscene books, etc",
"• Section 293. Sale, etc., of obscene objects to young person",
• Section 294. Obscene acts and songs,
• Section 294A. Keeping lottery office,
CHAPTER XV – OF OFFENCES RELATING TO RELIGION,
• Section 295. Injuring or defiling place of worship with intent to insult the religion of any class,
"• Section 295A. Deliberate and malicious acts, intended to outrage religious feelings or any class",
by insulting its religion or religious beliefs,
• Section 296. Disturbing religious assembly,
"• Section 297. Trespassing on burial places, etc.",
"• Section 298. Uttering, words, etc., with deliberate intent to wound the religious feelings of any",
person,
CHAPTER XVI – OF OFFENCES AFFECTING THE HUMAN BODY,
Of Offences affecting Life,
• Section 299. Culpable homicide,
• Section 300. Murder,
• Section 301. Culpable homicide by causing death of person other than person whose death was,
intended,
• Section 302. Punishment for murder,
• Section 303. Punishment for murder by life-convict,
• Section 304. Punishment for culpable homicide not amounting to murder,
• Section 304A. Causing death by negligence,
• Section 304B. Dowry death,
• Section 305. Abetment of suicide of child or insane person,
• Section 306. Abetment of suicide,
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• Section 307. Attempt to murder,
• Section 308. Attempt to commit culpable homicide,
• Section 309. Attempt to commit suicide,
• Section 310. Thug,
• Section 311. Punishment,
"Of the Causing of Miscarriage, of Injuries to Unborn Children, of the Exposure of Infants, and",
of the Concealment of Births,
• Section 312. Causing miscarriage,
• Section 313. Causing miscarriage without woman’s consent,
• Section 314. Death caused by act done with intent to cause miscarriage-,
• Section 315. Act done with intent to prevent child being born alive or to cause it to die after,
birth,
• Section 316. Causing death of quick unborn child by act amounting to culpable homicide,
"• Section 317. Exposure and abandonment of child under twelve years, by parent or person",
having care of it.,
• Section 318. Concealment of birth by secret disposal of dead body.,
Of Hurt,
• Section 319. Hurt.,
• Section 320. Grievous hurt.,
• Section 321. Voluntarily causing hurt.,
• Section 322. Voluntarily causing grievous hurt,
• Section 323. Punishment for voluntarily causing hurt,
• Section 324. Voluntarily causing hurt by dangerous weapons or means,
• Section 325. Punishment for voluntarily causing grievous hurt,
• Section 326. Voluntarily causing grievous hurt by dangerous weapons or means,
• Section 326A. Voluntarily causing grievous hurt by use of acid etc.,
• Section 326B. Voluntarily throwing or attempting to throw acid,
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"• Section 327. Voluntarily causing hurt to extort property, or to constrain to an illegal act",
"• Section 328. Causing hurt by means of poison, etc., with intent to commit an offence",
"• Section 329. Voluntarily causing grievous hurt to extort property, or to constrain to an illegal",
act,
"• Section 330. Voluntarily causing hurt to extort confession, or to compel restoration of property",
"• Section 331. Voluntarily causing grievous hurt to extort confession, or to compel restoration",
of property,
• Section 332. Voluntarily causing hurt to deter public servant from his duty,
• Section 333. Voluntarily causing grievous hurt to deter public servant from his duty,
• Section 334. Voluntarily causing hurt on provocation,
• Section 335. Voluntarily causing grievous hurt on provocation,
• Section 336. Act endangering life or personal safety of others,
• Section 337. Causing hurt by act endangering life or personal safety of others,
• Section 338. Causing grievous hurt by act endangering life or personal safety of others,
Of Wrongful Restraint and Wrongful Confinement,
• Section 339. Wrongful restraint,
• Section 340. Wrongful confinement.,
• Section 341. Punishment for wrongful restraint,
• Section 342. Punishment for wrongful Confinement,
• Section 343. Wrongful confinement for three or more days,
• Section 344. Wrongful confinement for ten or more days,
• Section 345. Wrongful confinement of person for whose liberation writ has been issued,
• Section 346. Wrongful confinement in secret,
"• Section 347. Wrongful confinement to extort property, or constrain to illegal act",
"• Section 348. Wrongful confinement to extort confession, or compel restoration of property",
Of Criminal Force and Assault,
• Section 349. Force,
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• Section 350. Criminal force,
• Section 351. Assault,
• Section 352. Punishment for assault or criminal force otherwise than on grave provocation,
• Section 353. Assault or criminal force to deter public servant from discharge of his duty,
• Section 354. Assault or criminal force to woman with intent to outrage her modesty,
• Section 354A. Sexual harassment and punishment for Sexual Harassment,
• Section 354B. Assault or use of criminal force with intent to disrobe,
• Section 354C. Voyeurism,
• Section 354D. Stalking,
"• Section 355. Assault or criminal force with intent to dishonour person, otherwise than on grave",
provocation,
• Section 356. Assault or criminal force in attempt to commit theft of property carried by a person,
• Section 357. Assault or criminal force in attempt wrongfully to confine a person,
• Section 358. Assault or criminal force on grave provocation,
"Of Kidnapping, Abduction, Slavery and Forced Labour",
• Section 359. Kidnapping,
• Section 360. Kidnapping from India,
• Section 361. Kidnapping from lawful guardianship,
• Section 362. Abduction,
• Section 363. Punishment for kidnapping,
• Section 363A. Kidnapping or maiming a minor for purposes of begging,
• Section 364. Kidnapping or abducting in order to murder,
"• Section 364A. Kidnapping for ransom, etc.",
• Section 365. Kidnapping or abducting with intent secretly and wrongfully to confine person,
"• Section 366. Kidnapping, abducting or inducing woman to compel her marriage, etc.",
• Section 366A. Procreation of minor girl,
• Section 366B. Importation of girl from foreign country,
"• Section 367. Kidnapping or abducting in order to subject person to grievous hurt, slavery, etc.",
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"• Section 368. Wrongfully concealing or keeping in confinement, kidnapped or abducted person",
• Section 369. Kidnapping or abducting child under ten years with intent to steal from its person,
• Section 370. Trafficking of person,
• Section 370A.Exploitation of a trafficked person,
• Section 371. Habitual dealing in slaves,
"• Section 372. Selling minor for purposes of prostitution, etc.",
"• Section 373. Buying minor for purposes of prostitution, etc.",
• Section 374. Unlawful compulsory labour,
Sexual Offences,
• Section 375. Rape,
• Section 376. Punishment for rape,
• Section 376A. Punishment for causing death or resulting in persistent vegitative state of victim,
• Section 376B. Intercourse by a man with his wife during separation,
• Section 376C. Intercourse by person in authority,
• Section 376D. Gang Rape,
• Section 376E.Punishment for repeat offenders,
Of Unnatural Offences,
• Section 377. Unnatural offences,
CHAPTER XVII – OF OFFENCES AGAINST PROPERTY,
Of Theft,
• Section 378. Theft,
• Section 379. Punishment for theft,
"• Section 380. Theft in dwelling house, etc",
"• Section 382. Theft after preparation made for causing death, hurt or restraint in order to the",
committing of the theft,
Of Extortion,
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• Section 383. Extortion,
• Section 384. Punishment for extortion,
• Section 385. Putting person in fear of injury in order to commit extortion,
• Section 386. Extortion by putting a person in fear of death or grievous hurt,
"• Section 387. Putting person in fear of death or of grievous hurt, in order to commit extortion",
• Section 388. Extortion by threat of accusation of an offence punishable with death or,
"imprisonment for life, etc.",
"• Section 389. Putting person in fear of accusation of offence, in order to commit extortion",
Of Robbery and Dacoity,
• Section 390. Robbery,
• Section 391. Dacoity,
• Section 392. Punishment for robbery,
• Section 393. Attempt to commit robbery,
• Section 394. Voluntarily causing hurt in committing robbery,
• Section 395. Punishment for dacoity,
• Section 396. Dacoity with murder,
"• Section 397. Robbery, or dacoity, with attempt to cause death or grievous hurt",
• Section 398. Attempt to commit robbery or dacoity when armed with deadly weapon,
• Section 399. Making preparation to commit dacoity,
• Section 400. Punishment for belonging to gang of dacoits,
• Section 401. Punishment for belonging to gang of thieves,
• Section 402. Assembling for purpose of committing dacoity,
Of Criminal Misappropriation of Property,
• Section 403. Dishonest misappropriation of property,
• Section 404. Dishonest misappropriation of property possessed by deceased person at the time,
of his death,
Of Criminal Breach of Trust,
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• Section 405. Criminal breach of trust,
• Section 406. Punishment for criminal breach of trust,
"• Section 407. Criminal breach of trust by carrier, etc.",
• Section 408. Criminal breach of trust by clerk or servant,
"• Section 409. Criminal breach of trust by public servant, or by banker, merchant or agent",
Of the Receiving of Stolen Property,
• Section 410. Stolen Property,
• Section 411. Dishonestly receiving stolen property,
• Section 412. Dishonestly receiving property stolen in the commission of a dacoity,
• Section 413. Habitually dealing in stolen property,
• Section 414. Assisting in concealment of stolen property,
Of Cheating,
• Section 415. Cheating,
• Section 416. Cheating by personation,
• Section 417. Punishment for cheating,
• Section 418. Cheating with knowledge that wrongful loss may ensue to person whose interest,
offender is bound to protect,
• Section 419. Punishment for cheating by personation,
• Section 420. Cheating and dishonestly inducing delivery of property,
Of Fraudulent Deeds and Disposition of Property,
• Section 421. Dishonest or fraudulent removal or concealment of property to prevent,
distribution among creditors,
• Section 422. Dishonestly or fraudulently preventing debt being available for creditors,
• Section 423. Dishonest or fraudulent execution of deed of transfer containing false statement,
of consideration,
• Section 424. Dishonest or fraudulent removal or concealment of property,
Of Mischief,
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• Section 425. Mischief,
• Section 426. Punished for mischief,
• Section 427. Mischief causing damage to the amount of fifty rupees,
• Section 428. Mischief by killing or maiming animal of the value of ten rupees,
"• Section 429. Mischief by killing or maiming cattle, etc., of any value or any animal of the value",
of fifty rupees,
• Section 430. Mischief by injury to works of irrigation or by wrongfully diverting water,
"• Section 431. Mischief by injury to public road, bridge, river or channel",
• Section 432. Mischief by causing inundation or obstruction to public drainage attended with,
damage,
"• Section 433. Mischief by destroying, moving or rendering less useful a light-house or sea-mark",
"• Section 434. Mischief by destroying or moving, etc., a land- mark fixed by public authority",
• Section 435. Mischief by fire or explosive substance with intent to cause damage to amount of,
one hundred or (in case of agricultural produce) ten rupees,
"• Section 436. Mischief by fire or explosive substance with intent to destroy house, etc.",
• Section 437. Mischief with intent to destroy or make unsafe a decked vessel or one of twenty,
tons burden,
• Section 438. Punishment for the mischief described in section 437 committed by fire or,
explosive substance,
• Section 439. Punishment for intentionally running vessel aground or ashore with intent to,
"commit theft, etc",
• Section 440. Mischief committed after preparation made for causing death or hurt,
Of Criminal Trespass,
• Section 441. Criminal trespass,
• Section 442. House trespass,
• Section 443. Lurking house-trespass,
• Section 444. Lurking house-trespass by night,
• Section 445. Housing breaking,
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• Section 446. House-breaking by night,
• Section 447. Punishment for criminal trespass,
• Section 448. Punishment for house-trespass,
• Section 449. House-trespass in order to commit offence punishable with death,
• Section 450. House-trespass in order to commit offence punishable with imprisonment for life,
• Section 451. House-trespass in order to commit offence punishable with imprisonment,
"• Section 452. House-trespass after preparation for hurt, assault or wrongful restraint",
• Section 453. Punishment for lurking house-trespass or house-breaking,
• Section 454. Lurking house-trespass or house-breaking in order to commit offence punishable,
with imprisonment,
"• Section 455. Lurking house-trespass or house-breaking after preparation for hurt, assault or",
wrongful restraint,
• Section 456. Punishment for lurking house-trespass or house-breaking by night,
• Section 457. Lurking house trespass or house-breaking by night in order to commit offence,
punishable with imprisonment,
"• Section 458. Lurking house-trespass or house-breaking by night after preparation for hurt,",
"assault, or wrongful restraint",
• Section 459. Grievous hurt caused whilst committing lurking house trespass or house-breaking,
• Section 460. All persons jointly concerned in lurking house-trespass or house-breaking by,
night punishable where death or grievous hurt caused by one of them,
• Section 461. Dishonestly breaking open receptacle containing property,
• Section 462. Punishment for same offence when committed by person entrusted with custody,
CHAPTER XVIII – OF OFFENCES RELATING TO DOCUMENTS AND TO PROPERTY,
MARKS,
• Section 463. Forgery,
• Section 464. Making a false document,
• Section 465. Punishment for forgery,
"• Section 466. Forgery of record of court or of public register, etc.",
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"• Section 467. Forgery of valuable security, will, etc.",
• Section 468. Forgery for purpose of cheating,
• Section 469. Forgery for purpose of harming reputation,
• Section 470. Forged document or electronic record,
• Section 471. Using as genuine a forged document or electronic record,
"• Section 472. Making or possessing counterfeit seal, etc., with intent to commit forgery",
punishable under section 467,
"• Section 473. Making or possessing counterfeit seal, etc., with intent to commit forgery",
punishable otherwise,
"• Section 474. Having possession of document described in Section 466 or 467, knowing it to be",
forged and intending to use it as genuine,
• Section 475. Counterfeiting device or mark used for authenticating documents described in,
"Section 467, or possessing counterfeit marked material",
• Section 476. Counterfeiting device or mark used for authenticating documents other than those,
"described in section 467, or possessing counterfeit marked material",
"• Section 477. Fraudulent cancellation, destruction, etc., of will, authority to adopt, or valuable",
security,
• Section 477A. Falsification of accounts,
Of Property and Other Marks,
• Section 478. Trade marks,
• Section 479. Property mark,
• Section 480. Using a false trade mark,
• Section 481. Using a false property mark,
• Section 482. Punishment for using a false property mark,
• Section 483. Counterfeiting a property mark used by another,
• Section 484. Counterfeiting a mark used by a public servant,
• Section 485. Making or possession of any instrument for counterfeiting a property mark,
• Section 486. Selling goods marked with a counterfeit property mark,
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• Section 487. Making a false mark upon any receptacle containing goods,
• Section 488. Punishment for making use of any such false mark,
• Section 489. Tampering with property mark with intent to cause injury,
Of Currency-Notes and Bank-Notes,
• Section 489A. Counterfeiting currency-notes or bank-notes,
"• Section 489B. Using as genuine, forged or counterfeit currency-notes or bank-notes",
• Section 489C. Possession of forged or counterfeit currency-notes or bank-notes,
• Section 489D. Making or possessing instruments or materials for forgoing or counterfeiting,
currency-notes or bank-notes,
• Section 489E. Making or using documents resembling currency-notes or bank-notes,
CHAPTER XIX – OF THE CRIMINAL BREACH OF CONTRACTS OF SERVICE,
• Section 490. Breach of contract of service during voyage or journey,
• Section 491. Breach of contract to attend on and supply wants of helpless person,
• Section 492. Breach of contract to serve at distant place to which servant is conveyed at,
master’s expense,
CHAPTER XX – OF OFFENCES RELATING TO MARRIAGE,
• Section 493. Cohabitation caused by a man deceitfully inducing a belief of lawful marriage,
• Section 494. Marrying again during lifetime of husband or wife,
• Section 495. Same offence with concealment of former marriage from person with whom,
subsequent marriage is contracted,
• Section 496. Marriage ceremony fraudulently gone through without lawful marriage,
• Section 497. Adultery,
• Section 498. Enticing or taking away or detaining with criminal intent a married woman,
CHAPTER XXA – OF CRUELTY BY HUSBAND OR RELATIVES OF HUSBAND,
• Section 498A. Husband or relative of husband of a women subjecting her to cruelty,
CHAPTER XXI – OF DEFAMATION,
• Section 499. Defamation,
• Section 500. Punishment for defamation,
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• Section 501. Printing or engraving matter known to be defamatory,
• Section 502. Sale of printed or engraved substance containing defamatory matter,
"CHAPTER XXII – OF CRIMINAL INTIMIDATION, INSULT AND ANNOYANCE",
• Section 503. Criminal intimidation,
• Section 504. Intentional insult with intent to provoke breach of the peace,
• Section 505. Statements conducing to public mischief,
• Section 506. Punishment for criminal intimidation,
• Section 507. Criminal intimidation by an anonymous communication,
• Section 508. Act caused by inducing person to believe that he will be rendered an object of the,
Divine displeasure,
"• Section 509. Word, gesture or act intended to insult the modesty of a woman",
• Section 510. Misconduct in public by a drunken person,
CHAPTER XXIII – OF ATTEMPTS TO COMMIT OFFENCES,
• Section 511. Punishment for attempting to commit offences punishable with imprisonment for,
life or other imprisonment,
•,
Section 1. Title and extent of operation of,
the Code,
Act No. 45 of 1860.,
"This Act shall be called the Indian Penal Code, and shall [extend to the whole of India [except the",
1 2,
State of Jammu and Kashmir].],
————————,
"1. The original words have successively been amended by Act 12 of 1891, sec. 2 and Sch. I,",
"the A.O. 1937, the A.O. 1948 and the A.O. 1950 to read as above.",
"2. Subs. by Act 3 of 1951, sec. 3 and Sch., for “except Part B States”.",
Section 2. Punishment of offences committed,
within India,
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26,
Every person shall be liable punishment under this Code and not otherwise for every act or omission,
"contrary to the provisions thereof, of which, he shall be guilty within [India] [***].",
1 2,
——————————-,
"1. The original words “the said territories” have successively been amended by the A.O. 1937,",
"the A.O. 1948, the A.O. 1950 and Act 3 of 1951, sec. 3 and Sch., to read as above.",
"2. The words and figures “on or after the said first day of May, 1861” rep. by Act 12 of 1891,",
sec. 2 and Sch. I.,
Section 3. Punishment of offences committed,
"beyond, but which by law may be tried",
"within, India",
"Any person liable, by any (Indian law) to be tried for an offence committed beyond (India) shall",
1 2,
be dealt with according to the provisions of this Code for any act committed beyond (India) in the,
2,
same manner as if such act had been committed within [India].,
3,
——————————–,
1. Subs. by the A.O. 1937 for “law passed by the Governor General of India in Council”.,
2. The original words “the limits of the said territories” have successively been amended by,
"the A.O. 1937, the A.O. 1948, the A.O. 1950 and Act 3 of 1951, sec. 3 and Sch., to read as",
above.,
"3. The original words “the said territories” have successively been amended by the A.O. 1937,",
"the A.O. 1948, the A.O. 1950 and Act 3 of 1951, sec. 3 and Sch., to read as above.",
4. Extension of Code to extra-territorial,
offences,
[4. Extension of Code to extra-territorial offences.,
1,
The provisions of this Code apply also to any offence committed by,
[(1) Any citizen of India in any place without and beyond India;,
2,
(2) Any person on any ship or aircraft registered in India wherever it may be.],
Explanation. -In this section the word “offence” includes every act committed outside [India],
3,
"which, If committed in [India], would be punishable under this code.",
3,
LLaatteessttLLaawwss..ccoomm,
27,
[Illustration],
4,
"[*** A, [who is [a citizen of India]], commits a murder in Uganda. He can be tried and convicted",
5 6 7,
of murder in any place in 3[India] in which he may be found.,
[* * *],
8,
—————————-,
"1 Subs. by Act 4 of 1898, sec. 2, for the original section.",
"2 Subs. by the A.O. 1950, for clauses (1) to (4).",
"3 The words “British India” have been successively amended by the A.O. 1948, the A.O. 1950",
"and Act 3 of 1951, sec. 3 and Sch. to read as above.",
"4 Subs. by Act 36 of 1957, sec. 3 and Sch. II, for “Illustrations” (w.e.f. 17-9-1957).",
"5 The brackets and letter “(a)” omitted by Act 36 of 1957, sec. 3 and Sch. II (w.e.f. 17-9-1957).",
"6 Subs. by the A.O. 1948, for “a coolie, who is a Native Indian subject”.",
"7 Subs. by the A.O. 1950, for “a British subject of Indian domicile”.",
"8 Illustrations (b), (c) and (d) omitted by the A.O. 1950.",
5. Certain laws not to be affected by this Act,
5. Certain laws not to be affected by this Act.- Nothing in this Act shall affect the provisions of,
1,
"any Act for punishing mutiny and desertion of officers, soldiers, sailors or airmen in the service of",
the Government of India or the provisions of any special or local law.,
————————,
"1. Subs. by the A.O. 1950, for the original section.",
6. Definitions in the Code to be understood,
subject to exceptions,
"Throughout this Code every definition of an offence, every penal provision, and every illustration",
of every such definition or penal provision shall be understood subject to the exceptions contained,
"in the Chapter entitled “General Exceptions”, though those exceptions are not repeated in such",
"definition, penal provision, or illustration.",
Illustrations,
"(a) The sections, in this Code, which contain definitions of offences, do not express that a child",
under seven years of age can not commit such offences; but the definitions are to be understood,
LLaatteessttLLaawwss..ccoomm,
28,
subject to the general exception which provides that nothing shall be an offence which is done by,
a child under seven years of age.,
"(b) A, a police officer, without warrant, apprehends Z, who has committed murder. Here A is not",
guilty of the offence of wrongful confinement for he was bound by law to apprehend Z and,
therefore the case falls within the general exception which provides that “nothing is an offence,
which is done by a person who is bound by law to do it”.,
7. Sense of expression once explained,
"Every expression, which is explained in any part of this Code, is used in every part of this Code in",
conformity with the explanation.,
8. Gender,
"The pronoun “he” and its derivatives are used of any person, whether male or female.",
9. Number,
"Unless the contrary appears from the context, words importing the singular number include the",
"plural number, and words importing the plural number include the singular number.",
"10. Man, Woman",
The word “man” denotes a male human being of any age; the word “woman” denotes a female,
human being of any age.,
11. Person,
"The word “person” includes any Company or Association or body of persons, whether incorporated",
or not.,
12. Public,
The word “public” includes any class of the public or any community.,
13. Queen,
[Definition of “Queen”.] Rep. by the A. O. 1950.,
LLaatteessttLLaawwss..ccoomm,
29,
14. Servant of Government,
14. “Servant of Government”.- The words “servant of Government” denote any officer or servant,
1,
"continued, appointed or employed in India by or under the authority of Government.",
———————————,
"1. Subs. by the A.O. 1950, for the original section.",
15. British India,
[Definition of “British India”.] Rep. by the A. O. 1937.,
16. Government of India,
Rep. By the A.O. 1937.,
17. Government,
17. “Government”.- The word “Government” denotes the Central Government or the Government,
1,
of a [***] State.,
2,
—————————,
"1. Subs. by the A.O. 1950, for the original section.",
"2. The word and letter “Part A” omitted by Act 3 of 1951, sec. 3 and Sch.",
18. India,
18. India.- “India” means the territory of India excluding the State of Jammu and Kashmir.,
1,
——————————,
"1 Subs. by Act 3 of 1951, sec. 3 and Sch., for the former section which was ins. by the A.O.",
1950. The original section 18 was rep. by the A.O. 1937.,
Section 19. Judge,
"“Judge”.–The word “Judge” denotes not only every person who is officially designated as a Judge,",
"but also every person who is empowered by law to give, in any legal proceeding, civil or criminal,",
"a definitive judgment, or a judgment which, if not appealed against, would be definitive, or a",
"judgment which, if confirmed by some other authority, would be definitive, or",
LLaatteessttLLaawwss..ccoomm,
30,
"who is one of a body of persons, which body of persons is empowered by law to give such a",
judgment.,
Illustrations,
"(a) A Collector exercising jurisdiction in a suit under Act 10 of 1859, is a judge.",
(b) A Magistrate exercising jurisdiction in respect of a charge on which he has power to sentence,
"to fine or imprisonment, with or without appeal, is a judge.",
"(c) A member of a Panchayat which has power, under Regulation VII, 1816, of the Madras Code,",
1,
"to try and determine suits, is a judge.",
(d) A Magistrate exercising jurisdiction in respect of a charge on which he has power only to,
"commit for trial to another Court, is not a judge.",
————————–,
"1. Rep. by the Madras Civil Courts Act, 1873 (3 of 1873).",
Section 20. Court of Justice,
"The words “Court of Justice” denote a judge who is empowered by law to act judicially alone, or a",
"body of judges, which is empowered by law to act judicially as a body, when such judge or body",
of judges is acting judicially,
Illustration,
"A panchayat acting under Regulation VII, 1816, of the Madras Code, having power to try and",
1,
"determine suits, is a Court of Justice.",
————————–,
"1. Rep. by the Madras Civil Courts Act, 1873 (3 of 1873).",
Section 21. Public Servant,
The words “public servant” denote a person falling under any of the descriptions hereinafter,
following namely:-,
[* ****],
1,
"Second.- Every Commissioned Officer in the Military, [Naval or Air] Forces [[* * *] of India];",
2 3 4,
LLaatteessttLLaawwss..ccoomm,
31,
"[Third.- Every Judge including any person empowered by law to discharge, whether by himself or",
5,
"as a member of any body of persons, any adjudicatory function;]",
"Fourth.- Every officer of a Court of justice [(including a liquidator, receiver or commissioner)]",
6,
"whose duty it s, as such officer, to investigate or report on any matter of law or fact, or to make,",
"authenticate, or keep any document, or to take charge or dispose of any property, or to execute any",
"judicial process, or to administer any oath, or to interpret, or to preserve order in the Court, and",
every person specially authorized by a Court of Justice to perform any of such duties.,
"Fifth.- Every juryman, assessor, or member of a panchayat assisting a Court of justice or public",
servant;,
Sixth.- Every arbitrator or other person to whom any cause or matter has been referred for decision,
"or report by any Court of justice, or by any other competent public authority;",
Seventh.- Every person who holds any office by virtue of which he is empowered to place or keep,
any person in confinement;,
"Eight. -Every officer of [the Government] whose duty it is, as such officer, to prevent offences, to",
7,
"give information of offences, to bring offenders to justice, or to protect the public health, safety or",
convenience;,
"Ninth.- Every officer whose duty it is, as such officer, to take, receive, keep or extend any property",
"on behalf of [the Government], or to make any survey, assessment or contract on behalf of the [the",
7 7,
"Government], or to execute any revenue process, or to investigate, or to report, on any matter",
"affecting the pecuniary interests of [the Government], or to make, authenticate or keep any",
7,
"document relating to the pecuniary interests of[the Government], or to prevent the infraction of",
7,
any law for the protection of the pecuniary interests of [the Government][***];.,
7 8,
"Tenth. – Every officer whose duty it is, as such officer, to take, receive, keep or expend any",
"property, to make any survey or assessment or to levy any rate or tax for any secular common",
"purpose of any village, town or district, or to make, authenticate or keep any document for the",
"ascertaining of the rights of the people of any village, town or district;",
"[Eleventh.- Every persons who holds any office in virtue of which he is empowered to prepare,",
9,
publish maintain or revise an electoral roll or to conduct an election or part of an election; ],
[twelfth.- Every person.,
10,
LLaatteessttLLaawwss..ccoomm,
32,
(a) In the service or pay of the Government or remunerated by fees or commission for the,
performance of any public duty by the Government;,
"(b) In the service or pay of a local authority, a corporation established by or under a Central,",
"Provincial or State Act or a Government company as defined in section 617 of the Companies Act,",
1956 (1 of 1956.],
Illustration,
A Municipal Commissioner is a public servant.,
Explanation 1,
"Persons falling under any of the above descriptions are public servants, whether appointed by the",
Government or not.,
Explanation 2,
"Wherever the words “public servant” occur, they shall be understood of every person who is in",
"actual possession of the situation of a public servant, whatever legal defect there may be in his right",
to hold that situation.,
Explanation 3,
11,
"The word “election” denotes an election for the purpose of selecting members of any legislative,",
"municipal or other public authority, of whatever character, the method of selection to which is by,",
"or under, any law prescribed as by election.",
[***],
12,
STATE AMENDMENT,
State of Rajasthan,
"In Section 21 of the Indian Penal Code, 1860 (Central Act 45 of 1860), in its application to the",
"State of Rajasthan, after clause twelfth, the following new clause shall be added namely: –",
“Thirteenth.- Every person employed or engaged by any public body in the conduct and supervision,
of any examination recognized or approved under any law.,
Explanation,
LLaatteessttLLaawwss..ccoomm,
33,
The expression ‘Public Body’ includes:-,
"(a) A University, Board of Education, or other body, either established by or under a Central or",
State Act or under the provisions of the Constitution of India or constituted by the Government;,
and,
(b) A local authority.”,
"[Vide Rajasthan Act, 1993 4 of 1993, Sec. 2 (w.e.f. 11-2-1993)].",
—————————-,
1. Clause First omitted by the A.O. 1950.,
"2. Subs. by Act 10 of 1927, sec. 2 and Sch. I, for “or Naval”.",
"3. The original words “of the Queen while serving under the Government of India, or any",
"Government” have successively been amended by the A.O. 1937, the A.O. 1948 and the A.O.",
1950 to read as above.,
4. The words “of the Dominion” omitted by the A.O. 1950.,
"5. Subs. by Act 40 of 1964, sec. 2, for the former clause (w.e.f. 18-12-1964).",
"6. Ins. by Act 40 of 1964, sec. 2 (w.e.f. 18-12-1964).",
"7. Subs. by the A.O. 1950, for “the Crown” which had been subs. by the A.O. 1937, for",
“Government”.,
"8. Certain words omitted by Act 40 of 1964, sec. 2 (w.e.f. 18-12-1964).",
"9. Ins. by Act 39 of 1920, sec. 2.",
"10. Subs. by Act 40 of 1964, sec. 2, for the former clause (w.e.f. 18-12-1964).",
"11. Ins. by Act 39 of 1920, sec. 2.",
"12. Explanation 4 ins. by Act 2 of 1958, sec. 2 (w.e.f. 12-2-1958) and omitted by Act 40 of 1964,",
sec. 2 (w.e.f. 18-12-1964).,
Section 22. Moveable property,
"The words “moveable property” are intended to include corporeal property of every description,",
"except land and things attached to the earth or permanently fastened to anything, which is attached",
to the earth.,
Section 23. Wrongful gain,
LLaatteessttLLaawwss..ccoomm,
34,
23. “Wrongful gain”.–“Wrongful gain” is gain by unlawful meansof property to which the person,
gaining is not legally entitled.,
“Wrongful loss”.–“Wrongful loss” is the loss by unlawful meansof property to which the person,
losing it is legally entitled. Gaining wrongfully.,
"Losing wrongfully.–A person is said to gainwrongfully when such person retains wrongfully, as",
well as when suchperson acquires wrongfully.,
"A person is said to lose wrongfully whensuch person is wrongfully kept out of any property, as",
well as whensuch person is wrongfully deprived of property.,
Section 24. Dishonestly,
Whoever does anything with the intention of causing wrongful gain to one person or wrongful loss,
"to another person, is said to do that thing “dishonestly”.",
Section 25. Fraudulently,
A person is said to do a thing fraudulently if he does that thing with intent to defraud but not,
otherwise.,
Section 26. Reason to believe,
"A person is said to have “reason to believe” a thing, if he has sufficient cause to believe that thing",
but not otherwise.,
"Section 27. Property in possession of wife,",
clerk or servant,
"When property is in the possession of a person’s wife, clerk or servant, on account of that person,",
it is in that person’s possession within the meaning of this Code.,
Explanation,
"A person employed temporarily or on a particular occasion in the capacity of a clerk or servant, is",
a clerk or servant within the meaning of this section.,
LLaatteessttLLaawwss..ccoomm,
35,
Section 28. Counterfeit,
"A person is said to “counterfeit” who causes one thing to resemble another thing, intending by",
"means of that resemblance to practice deception, or knowing it to be likely that deception will",
thereby be practiced.,
Explanation 1,
1,
It is not essential to counterfeiting that the imitation should be exact.,
Explanation 2,
"When a person causes one thing to resemble another thing, and the resemblance is such that a",
"person might be deceived thereby, it shall be presumed, until the contrary is proved, that the person",
so causing the one thing to resemble the other thing intended by means of that resemblance to,
practice deception or knew it to be likely that deception would thereby be practiced.,
—————————,
"1. Subs. by Act 1 of 1889, sec. 9, for the original Explanation.",
Section 29. Document,
The word “document” denotes any matter expressed or described upon any substance by means of,
"letters, figures, or marks, or by more than one of those means, intended to be used, or which may",
"be used, as evidence of that matter.",
Explanation 1,
"It is immaterial by what means or upon what substance the letters, figures or marks are formed, or",
"whether the evidence is intended for, or may be used in, a Court of Justice, or not.",
Illustrations,
"A writing expressing the terms of a contract, which may be used as evidence of the contract, is a",
document.,
A cheque upon a banker is a document.,
A power-of-attorney is a document.,
LLaatteessttLLaawwss..ccoomm,
36,
"A map or plan which is intended to be used or which may be used as evidence, is a document.",
A writing containing directions or instructions is a document.,
Explanation 2,
"Whatever is expressed by means of letters, figures or marks as explained by mercantile or other",
"usage, shall be deemed to be expressed by such letters, figures or marks within the meaning of this",
"section, although the same may not be actually expressed.",
Illustration,
A writes his name on the back of a bill of exchange payable to his order. The meaning of the,
"endorsement, as explained by mercantile usage, is that the bill is to be paid to the holder. The",
"endorsement is a document, and must be construed in the same manner as if the words “pay to the",
holder” or words to that effect had been written over the signature.,
Section 29A. Electronic record,
29A. Electronic record.- The words “electronic record” shall have the meaning assigned to them,
1,
"in clause (t) of sub-section (1) of section 2 of the Information Technology Act, 2000.",
————————,
"1. Ins. by Act 21 of 2000, sec. 91 and Sch. I, (w.e.f. 17-10-2000).",
Section 30. Valuable security,
"The words “valuable security” denote a document which is, or purports to be, a document whereby",
"any legal right is created, extended, transferred, restricted, extinguished or released, or where by",
"any person acknowledges that he lies under legal liability, or has not a certain legal right.",
Illustration,
A writes his name on the back of a bill of exchange. As the effect of this endorsement is transfer,
"the right to the bill to any person who may become the lawful holder of it, the endorsement is a",
“valuable security”.,
COMMENTS,
Certificates,
LLaatteessttLLaawwss..ccoomm,
37,
The certificates which are found as forged for being admitted in the college could be described as,
"valuable security; Kansaheb Kalu Patil v. State of Maharashtra, AIR 1981 SC 80: 1980 Cr LJ 1312.",
Section 31. A will,
The words “a will” denote any testamentary document.,
Section 32. Words referring to acts include,
illegal omissions,
"In every part of this Code, except where a contrary intention appears from the context, words which",
refer to acts done extend also to illegal omissions.,
COMMENTS,
Attempt to murder – illegal omission,
"The appellant and his wife’s relation were strained, she was deliberately starved and was not",
allowed to leave the house and only sometimes a morsel of bread or grass husk mixed in water after,
"five or six days used to be given. One day availing the opportunity, she went out of the house and",
manage to reach to the hospital where doctor found her condition critical and informed the police.,
It was held by the Supreme Court that the appellant’s husband liable under section 307 for attempt,
"to commit murder of his wife, by deliberately and systematically starving her for days together by",
depriving her of the food necessary for human existence. The act amounts to intentional act of,
"attempt to murder; Om Prakash v. State of Punjab, AIR 1961 SC 1782.",
Section 33. Act Omission,
The word “act” denotes as well a series of acts as a single act: the word “omission” denotes as well,
as series of omissions as a single omission.,
Section 34. Acts done by several persons in,
furtherance of common intention,
34. Acts done by several persons in furtherance of common intention.- When a criminal act is done,
1,
"by several persons in furtherance of the common intention of all, each of such persons is liable for",
that act in the same manner as if it were done by him alone.,
COMMENTS,
LLaatteessttLLaawwss..ccoomm,
38,
Common intention,
(i) The burden lies on prosecution to prove that actual participation of more than one person for,
commission of criminal act was done in furtherence of common intention at a prior concert; State,
"of Orissa v. Arjun Das, AIR 1999 SC 3229: 1999 (8) SCC 154: 1999 (6) JT 14: 1999 (4) Crimes",
78 (SC).,
(ii) Where the evidence did not establish that particular accused has dealt blow the liability would,
devolve on others also who were involved with common intention and as such conviction not,
"sustainable; State v. T.K. Sadashivaiah Din Kodimallappa, 1999 (1) CCR 152 (Kant).",
(iii) When the accused rushed with sword drawn itself showed that he shared the common intention,
"hence liable for conviction under section 300, read with section 34; Abdulla Kunhi v. State of",
"Kerala, AIR 1991 SC 452.",
(iv) The contention that the appellant was physically not in a position because of the sixty per cent.,
"disability due to polio on his lower limbs, to hold the hand of the deceased cannot be accepted. The",
"fact that the accused held the hand of one of the deceased to facilitate assailants to assault deceased,",
is said to have shared common intention of committing murder of deceased; Major Singh v. State,
"of Punjab, AIR 2003 SC 342.",
Distinction between ’common intention’ and ‘common object’,
A clear distinction is made out between common intention and common object is that common,
intention denotes action in concert and necessarily postulates the existence of a pre-arranged plan,
"implying a prior meeting of the minds, while common object does not necessarily require proof of",
prior meeting of minds or pre-concert. Though there is a substantial difference between the two,
"sections namely 34 and 149, they also to some extent overlap and it is a question to be determined",
"on the facts of each case; Chittarmal v. State of Rajasthan, AIR 2003 SC 796.",
Difference in operation of section 34 and section 149,
(i) Both sections 149 and 34 deal with a combination of persons who become liable to be punished,
"as sharers in the commission of offences. The non-applicability of section is, therefore, no bar in",
convicting the accused under substantive section read with section 34 if the evidence discloses,
commission of an offence in furtherance of the common intention of them all; Nethala Pothuraju,
"v. State of Andhra Pradesh, (1991) Cr LJ 3133 (SC).",
LLaatteessttLLaawwss..ccoomm,
39,
(ii) In order to convict a person vicariously liable under section 34 or section 149 it is not necessary,
to prove that each and everyone of them had indulged in overts acts; Ram Blias Singh v. State of,
"Bihar, (1989) Cr LJ 1782: AIR 1989 SC 1593.",
Ingredients,
"(i) When an offence is sought to be proved only on circumstantial evidence, the allegations of",
"common intention under section 34 normally cannot be established in absence of meeting of mind,",
"the overt act of the accused, by their conduct, by using the weapons by their utterance of words;",
"Santosh Desai v. State of Goa, (1997) 2 Crimes 666 (Bom).",
(ii) In order to bring a case under section 34 it is not necessary that there must be a prior conspiracy,
"or pre-meditation, the common intention can be formed in the course of occurrence; Hari Om v.",
"State of Uttar Pradesh, (1993) 1 Crimes 294 (SC).",
(iii) Mere surrender by appellant alongwith accused before police does not show meeting of minds,
"as to bring the case within ambit of section 34; Rangaswami v. State of Tamil Nadu, (1989) Cr LJ",
875: AIR 1989 SC 1137.,
(iv) It has been held that the requirement of statute is sharing the common intention upon being,
present at the place of occurrence. Mere distancing from the scene cannot absolve the accused;,
"Lallan Bhai v. State of Bihar, AIR 2003 SC 333.",
Participation in the Criminal Act,
"(i) To apply section 34, apart from the fact that there should be two or more accused, two factors",
"must be established: (i) common intention, and (ii) participation of accused in the commission of",
"an offence. If common intention is proved but no overt act is attributed to the individual accused,",
section 34 will be attracted as essentially it involves vicarious liability but if participation of the,
"accused in the crime is proved and common intention is absent, section 34 cannot be invoked; Jai",
"Bhagwan v. State of Haryana, AIR 1999 SC 1083.",
(ii) It requires a pre-arranged plan and pre-supposes prior concert therefore there must be prior,
meeting of mind. It can also be developed at the spur of moment but there must be pre-arrangement,
"or premeditated concert: Ramashish Yadav v. State of Bihar, 1999 (8) SCC 555: 1999(6) JT 560:",
1999 (2) JCC (SC) 471.,
LLaatteessttLLaawwss..ccoomm,
40,
"(iii) If some act is done by the accused person in furtherance of common intention of his co-accused,",
"he is equally liable like his co-accused; State of Punjab v. Fauja Singh, (1997) 3 Crimes 170 (P&H).",
"(iv) In the instant case, there was a long standing enmity between two rival factions in a village,",
and proceedings under the Criminal Procedure Code were pending against members of both,
"factions. On the day fixed for a hearing in the Magistrate’s Court in a neighbouring town, members",
of both factions left their village armed with sticks and lathis. While one faction was waiting on,
"the roadside for a bus, the other faction arrived and a fight ensued in which severe injuries were",
"caused on both sides, as a result of which one man died. The members of the opposite faction were",
charged and convicted under sections 302/34 I.P.C. It was held that the mere presence of a person,
armed with a deadly weapon at the spot of a crime does not necessarily make him a participator in,
"a joint crime in every case, because for the purpose of section 34 only such presence makes a man",
a participant in a joint crime as is established to be with the intention of lending weight to the,
"commission of a joint crime; Jamun v. State of Punjab, AIR 1957 SC 469.",
—————————–,
"1. Subs. by Act 27 of 1870, sec. 1, for the original section.>",
Section 35. When such an act is criminal by,
reason of its being done with a criminal,
knowledge or intention,
"Whenever an act, which is criminal only be reason of its being done with a criminal knowledge or",
"intention, is done by several persons, each of such persons who joins in the act with such knowledge",
or intention is liable for the act in the same manner as if the act were done by him alone with that,
knowledge or intention.,
Section 36. Effect caused partly by act and,
partly by omission,
"Wherever the causing of a certain effect, or an attempt to cause that effect, by an act or by an",
"omission, is an offence, it is to be understood that the causing of that effect partly by an act and",
partly by an omission is the same offence.,
LLaatteessttLLaawwss..ccoomm,
41,
Illustration,
"A intentionally causes Z’s death, partly by illegally omitting to give Z food, and partly by beating",
Z. A has committed murder.,
Section 37. Co-operation by doing one of,
several acts constituting an offence,
"When an offence is committed by means of several acts, whoever intentionally co-operates in the",
"commission of that offence by doing any one of those acts, either singly or jointly with any other",
person commits that offence.,
Illustrations,
(a) A and B agree to murder Z by severally and at different times giving him small doses of poison.,
A and B administer the poison according to the agreement with intent to murder Z. Z dies from the,
effects of the several doses of poison so administered to him. Here A and B intentionally co-,
"operates in the commission of murder and as each of them does an act by which the death is caused,",
they are both guilty of the offence though their acts are separate.,
"(b) A and B are joint jailors, and as such have the charge of Z, a prisoner, alternately for six hours",
"at a time. A and B, intending to cause Z’s death, knowingly co-operate in causing that effect by",
"illegally omitting, each during the time of his attendance, to furnish Z with food supplied to them",
for that purpose. Z dies of hunger. Both A and B are guilty of the murder of Z.,
"(c) A, a jailor, has the charge of Z, a prisoner. A, intending to cause Z’s death illegally omits to",
"supply Z with food in consequence of which Z is much reduced in strength, but the starvation is",
"not sufficient to cause his death. A is dismissed from his office, and B succeeds him. B, without",
"collusion or co-operation with A, illegally omits to supply Z with food, knowing that he is likely",
"thereby to cause Z’s death. Z dies of hunger. B is guilty of murder, but, as A did not co-operate",
with B. A is guilty only of an attempt to commit murder.,
Section 38. Persons concerned in criminal act,
may be guilty of different offences,
"Where several persons are engaged or concerned in the commission of a criminal act, they may be",
guilty of different offences by means of that act.,
LLaatteessttLLaawwss..ccoomm,
42,
Illustration,
A attacks Z under such circumstances of grave provocation that his killing of Z would be only,
"culpable homicide not amounting to murder. B, having ill-will towards Z and intending to kill him,",
"and not having been subject to the provocation, assists A in killing Z. Here, though A and B are",
"both engaged in causing Z’s death, B is guilty of murder, and A is guilty only of culpable homicide.",
Section 39. Voluntarily,
A person is said to cause an effect “voluntarily” when he causes it by means whereby he intended,
"to cause it, or by means which, at the time of employing those means, he knew or had reason to",
believe to be likely to cause it.,
Illustration,
"A sets fire, by night, to an inhabited house in a large town, for the purpose of facilitating a robbery",
"and thus causes the death of a person. Here, A may not have intended to cause death; and may even",
"be sorry that death has been caused by his act; yet, if he knew that he was likely to cause death, he",
has caused death voluntarily.,
Section 40. Offence,
"40 “Offence”.- Except in the [Chapters] and sections mentioned in clauses 2 and 3 of this section,",
1 2,
the word “offence” denotes a thing made punishable by this code.,
"In Chapter IV, [Chapter V A] and in the following sections, namely Sections [64, 65, 66, [67],",
3 4 5,
"71], 109, 110, 112, 114, 115, 116, 117, 187, 194, 195, 203, 211, 213, 214, 221, 222, 223, 224, 225,",
"327, 328, 329, 330, 331, 347, 348, 388, 389 and 445, the words “offence” denotes a thing",
"punishable under this Code, or under any special or local law as hereinafter defined.",
"And in Sections 141, 176, 177, 201, 202, 212, 216 and 441, the word “offence” has the same",
meaning when the thing punishable under the special or local law is punishable under such law,
"with imprisonment for a term of six months or upwards, whether with or without fine.",
—————————-,
"1. Subs. by Act 27 of 1870, sec. 1, for the original section.",
"2. Subs. by Act 8 of 1930, sec. 2 and Sch. I, for “Chapter”.",
"3. Ins. by Act 8 of 1913, sec. 2.",
LLaatteessttLLaawwss..ccoomm,
43,
"4. Ins. by Act 8 of 1882, sec. 1.",
"5. Ins. by Act 10 of 1886, sec. 21(1).",
Section 41. Special law,
A “special law” is a law applicable to a particular subject.,
Section 42. Local law,
A “local law” is a law applicable only to a particular part of [[***] [India]].,
1 2 3,
—————————–,
"1. Subs. by the A.O. 1948, for “British India”.",
"2. The words “the territories comprised in” omitted by Act 48 of 1952, sec. 3 and Sch. II (w.e.f.",
2-8-1952).,
"3. Subs. by Act 3 of 1951, sec. 3 and Sch., for “the States” which had been subs. by the A.O.",
"1950, for “the Provinces”.",
"Section 43. Illegal, Legally bound to do",
"The word “illegal” is applicable to everything which is an offence or which is prohibited by law,",
or which furnishes ground for a civil action; and a person is said to be “legally bound to do”,
whatever it is illegal in him to omit.,
Section 44. Injury,
"The word “injury” denotes any harm whatever illegally caused to any person, in body, mind,",
reputation or property.,
Section 45. Life,
"The word “life” denotes the life of a human being, unless the contrary appears from the context.",
Section 46. Death,
The word “death” denotes the death of a human being unless the contrary appears from the context.,
Section 47. Animal,
"The word “animal” denotes any living creature, other than a human being.",
LLaatteessttLLaawwss..ccoomm,
44,
Section 48. Vessel,
The word “vessel” denotes anything made for the conveyance by water of human beings or of,
property.,
"Section 49. Year, Month",
"Wherever the word “year” or the word “month” is used, it is to be understood that the year or the",
month is to be reckoned according to the British calendar.,
Section 50. Section,
The word “section” denotes one of those portions of a chapter of this Code which are distinguished,
by prefixed numeral figures.,
Section 51. Oath,
"The word “oath” includes a solemn affirmation substituted by law for an oath, and any declaration",
required or authorized by law to be made before a public servant or to be used for the purpose of,
"proof, whether in a Court of Justice or not.",
Section 52. Good faith,
Nothing is said to be done or believed in “good faith” which is done or believed without due care,
and attention.,
Section 52A. Harbour,
"52A “Harbour”.- Except in Section 157, and in Section 130 in the case in which the harbour is",
1,
"given by the wife or husband of the person harboured, the word “harbour” includes the supplying",
"a person with shelter, food, drink, money, clothes, arms, ammunition or means of conveyance, or",
"the assisting a person by any means, whether of the same kind as those enumerated in this section",
"or not, to evade apprehension.",
—————————-,
"1. Ins. by Act 8 of 1942, sec. 2 (w.e.f. 14-2-1942).",
Section 53. Punishment,
The punishments to which offenders are liable under the provisions of this Code are—,
LLaatteessttLLaawwss..ccoomm,
45,
First.— Death;,
[Secondly.—Imprisonment for life;],
1,
[***],
2,
"Fourthly. —Imprisonment, which is of two descriptions, namely:—",
"(1) Rigorous, that is, with hard labour;",
(2) Simple;,
Fifthly. —Forfeiture of property;,
Sixthly. —Fine.,
Comments,
Compensation of victims of crime,
Punishment and sentence both are clubbed together for their similarity in between; Ramesh,
"Chandra v. State of Madhya Pradesh, 1999 (1) JCJ 223.",
Reformative theory,
"(i) The reformative approach to punishment should be the object of criminal law, in order to",
promote rehabilitation without offending communal conscience and to secure social justice;,
"Narotam Singh v. State of Punjab, AIR 1978 SC 1542.",
"(ii) The punishment till the rising of the Court, for the offence of grievous hurt and related offences,",
committed conjointly on a group by an accused person which had resulted in the hospitalisation of,
"victim for four weeks, did not conform to any rational legal theory of behaviour, much less the",
"reformatory theory of punishment; Raman v. Francis, (1988) Cr LJ 1359 (Ker).",
—————————-,
"1. Subs. by Act 26 of 1955, sec. 117 and Sch., for “Secondly—Transportation” (w.e.f. 1-1-",
1956).,
"2. Clause “Thirdly” omitted by Act 17 of 1949, sec. 2 (w.e.f. 6-4-1949).",
Section 53A. Construction of reference to,
transportation,
LLaatteessttLLaawwss..ccoomm,
46,
53A. Construction of reference to transportation.- (1) Subject to the provisions of sub-section (2),
1,
"and sub-section (3), any reference to “transportation for life” in any other law for the time being in",
force or in any instrument or order having effect by virtue of any such law or of any enactment,
repealed shall be construed as a reference to “imprisonment for life”.,
(2) In every case in which a sentence of transportation for a term has been passed before the,
"commencement of the Code of Criminal Procedure (Amendment) Act, [1955] (26 of 1955), the",
2,
offender shall be dealt with in the same manner as if sentenced to rigorous imprisonment for the,
same term.,
(3) Any reference to transportation for a term or to transportation for any shorter term (by whatever,
name called) in any other law for the time being in force shall be deemed to have been omitted.,
"(4) Any reference to “transportation” in any other law for the time being in force shall,-",
"(a) If the expression means transportation for life, be construed as a reference to imprisonment for",
life;,
"(b) If the expression means transportation for any shorter term, be deemed to have been omitted.",
comments,
Transportation for life,
"A person sentenced to transportation for life, or any other term before the enactment of the",
"impugned section, was to be treated as a person sentenced to rigorous imprisonment for life or for",
"a lesser period as the case might be; Gopal Vinayak Godse v. State of Maharashtra, AIR 1961 SC",
600.,
—————————,
"1. Ins. by Act 26 of 1955, sec. 117 and Sch. (w.e.f. 1-1-1956).",
"2. Subs. by Act 36 of 1957, sec. 3 and Sch. II, for “1954” (w.e.f. 17-9-1957).",
Section 54. Commutation of sentence of,
death,
"In every case in which sentence of death shall have been passed, [the appropriate Government]",
1,
"may, without the consent of the offender, commute the punishment for any other punishment",
provided by this code.,
LLaatteessttLLaawwss..ccoomm,
47,
——————————–,
"1. Subs. by the A.O. 1950, for “the Central Government or the Provincial Government of the",
Province within which the offender shall have been sentenced”. The words in italics were,
"subs. by the A.O. 1937, for “the Government of India or the Government of the place”.",
Section 55. Commutation of sentence of,
imprisonment for life,
"In every case in which sentence of [imprisonment] for life shall have been passed, [the appropriate",
1 2,
"Government] may, without the consent of the offender, commute the punishment for imprisonment",
of either description for a term not exceeding fourteen years.,
—————————–,
"1. Subs. by Act 26 of 1955, sec. 117 and Sch., for “transportation” (w.e.f. 1-1-1956).",
"2. Subs. by the A.O. 1950, for “the Provincial Government of the Province within which the",
"offender shall have been sentenced”. The words in italics were subs. by the A.O. 1937, for",
“the Government of India or the Government of the place”.,
Section 55A. Definition of appropriate,
Government,
55A. Definition of “appropriate Government”.- In sections fifty-four and fifty-five the expression,
1,
"“appropriate Government” means, –",
(a) In case where the sentence is a sentence of death or is for an offence against any law relating to,
"a matter to which the executive power of the Union extends, the Central Government; and",
(b) In case where the sentence (whether of death or not) is for an offence against any law relating,
"to a matter to which the executive power of the State extends, the Government of the State within",
which the offender is sentenced.,
——————————–,
"1. Subs. by the A.O. 1950, for section 55A which had been ins. by the A.O. 1937.",
Section 56. Sentence of Europeans and,
Americans to penal servitude.,
LLaatteessttLLaawwss..ccoomm,
48,
Proviso as to sentence for term exceeding ten years but not for life,
"[Rep. by the Criminal Law (Removal of Racial Discriminations) Act, 1949 (17 of 1949) (w.e.f. 6-",
4-1949).],
Section 57. Fractions of terms of punishment,
"In calculating fractions of terms of punishment, [imprisonment] for life shall be reckoned as",
1,
equivalent to[imprisonment] for twenty years.,
1,
——————————–,
"1. Subs. by Act 26 of 1955, sec. 117 and Sch., for “transportation” (w.e.f. 1-1-1956).",
Section 58. Offenders sentenced to,
transportation how dealt with until,
transported,
"[Rep. by the Code of Criminal Procedure (Amendment) Act, 1955 (26 of 1955), see. 117and Sch.",
(w.e.f. 1-1-1956).,
Section 59. Transportation instead of,
imprisonment.,
"[Rep. by the Code of Criminal procedure(Amendment) Act, 1955(26 0f 1955), s.117 and Sch..",
(w.e.f. 1.1.1956).],
Section 60. Sentence may be (in certain cases,
of imprisonment) wholly or partly rigorous or,
simple,
In every case in which an offender is punishable with imprisonment which may be of either,
"description, it shall be competent to the Court which sentences such offender to direct in the",
"sentence that such imprisonment shall be wholly rigorous, or that such imprisonment shall be",
"wholly simple, or that any part of such imprisonment shall be rigorous and the rest simple",
Section 61. Sentence of forfeiture of property,
LLaatteessttLLaawwss..ccoomm,
49,
"[Rep. by the Indian Penal Code (Amendment) Act, 1921 (16 of 1921), sec. 4.]",
"Section 62. Forfeiture of property, in respect",
"of offenders punishable with death,",
transportation or imprisonment,
"Rep. by the Indian Penal Code (Amendment) Act, 1921 (16of 1921), sec. 4.",
Section 63. Amount of fine,
"Where no sum is expressed to which a fine may extend, the amount of fine to which the offender",
"is liable is unlimited, but shall not be excessive.",
Section 64. Sentence of imprisonment for,
non-payment of fine,
"[In every case, of an offence punishable with imprisonment as well as fine, in which the offender",
1,
"is sentenced to a fine, whether with or without imprisonment,",
"and in every case of an offence punishable [with imprisonment or fine, or] with fine only, in which",
2,
"the offender is sentenced to a fine,]",
"it shall be competent to the Court which sentences such offender to direct by the sentence that, in",
"default of payment of the fine, the offender shall suffer imprisonment for a certain term, in which",
imprisonment shall be in excess of any other imprisonment to which he may have been sentenced,
or to which he may be liable under a commutation of a sentence.,
————————–,
"1. Subs. by Act 8 of 1882, sec. 2, for “In every case in which an offender is sentenced to a fine”.",
"2. Ins. by Act 10 of 1886, sec. 21(2).",
Section 65. Limit to imprisonment for non-,
"payment of fine, when imprisonment and fine",
awardable,
LLaatteessttLLaawwss..ccoomm,
50,
The term for which the Court directs the offender to be imprisoned in default of payment of a fine,
shall not exceed one-fourth of the term of imprisonment which is the maximum fixed for the,
"offence, if the offence be punishable with imprisonment as well as fine.",
Section 66. Description of imprisonment for,
non-payment of fine,
The imprisonment which the Court imposes in default of payment of a fine may be of any,
description to which the offender might have been sentenced for the offence.,
Section 67. Imprisonment for non-payment,
of fine when offence punishable with fine,
only,
"If the offence be punishable with fine only, [the imprisonment which the Court imposes in default",
1,
"of payment of the fine shall be simple, and] the term for which the Court directs the offender to be",
"imprisoned, in default of payment of fine, shall not exceed the following scale, that is to say, for",
"any terms not exceeding two months when the amount of the fine shall not exceed fifty rupees, and",
"for any terms not exceeding four months when the amount shall not exceed one hundred rupees,",
and for any term not exceeding six months in any other case.,
————————–,
"1. Ins. by Act 8 of 1882, sec. 3.",
Section 68. Imprisonment to terminate on,
payment of fine,
The imprisonment which is imposed in default of payment of a fine shall terminate when ever that,
fine is either paid or levied by process of law.,
Section 69. Termination of imprisonment on,
payment of proportional part of fine,
"If, before the expiration of the term of imprisonment fixed in default of payment, such a proportion",
of the fine be paid or levied that the term of imprisonment suffered in default of payment is not less,
"than proportional to the part of the fine still unpaid, the imprisonment shall terminate.",
LLaatteessttLLaawwss..ccoomm,
51,
Illustration,
A is sentenced to a fine of one hundred rupees and to four month’ imprisonment in default of,
"payment. Here, if seventy-five rupees of the fine be paid or levied before the expiation of one month",
of the imprisonment. A will be discharged as soon as the first month has expired. If seventy-five,
"rupees be paid or levied at the time of the expiration of the first month, or at any later time while",
A continues in imprisonment. A will be immediately discharged. If fifty rupees of the fine be paid,
"or levied before the expiration of two months of the imprisonment, A will be discharged as soon as",
the two months are completed. If fifty rupees be paid or levied at the time of the expiration of those,
"two months, or at any later time while A continues in imprisonment, A will be immediately",
discharged.,
"Section 70. Fine levied within six years, or",
during imprisonment- Death not to discharge,
property from liability,
"The fine, or any part thereof which remains unpaid, may e levied at any time within six years after",
"the passing of the sentence, and if, under the sentence, the offender be liable to imprisonment for a",
"longer period than six years, then at any time previous to the expiration of that period; and the death",
"of the offender does not discharge from the liability any property which would, after his death, be",
legally liable for his debts.,
Section 71. Limit of punishment of offence,
made up of several offences,
"Where anything which is an offence is made up of parts, any of which parts is itself an offence, the",
"offender shall not be punished with the punishment of more than one of such his offences, unless",
it be so expressly provided.,
[Where anything is an offence falling within two or more separate definitions of any law in force,
1,
"for the time being by which offences are defined or punished, or",
"where several acts, of which one or more than one would by itself or themselves constitute an",
"offence, constitute, when combined, a different offence,",
LLaatteessttLLaawwss..ccoomm,
52,
the offender shall not be punished with a more severe punishment than the Court which tries him,
could award for any one of such offences.],
Illustrations,
(a) A gives Z fifty strokes with a stick. Here A may have committed the offence of voluntarily,
"causing hurt to Z by the whole beating, and also by each of the blows which make up the whole",
"beating. If A were liable to punishment for every blow, he might be imprisoned for fifty years, one",
for each blow. But he is liable only to one punishment for the whole beating.,
"(b) But if, while A is beating Z, Y interferes, and A intentionally strikes Y, here, as the blow given",
"to Y is no part of the act whereby A voluntarily causes hurt to Z, A is liable to one punishment for",
"voluntarily causing hurt to Z, and to another for the blow given to Y.",
—————————-,
"1. Added by Act 8 of 1882, sec. 4.",
Section 72. Punishment of person guilty of,
"one of several offences, the judgment stating",
that it is doubtful of which,
In all cases in which judgment is given that a person is guilty of one of several offences specified,
"in the judgment, but that it is doubtful of which of these offences he is guilty, the offender shall be",
punished for the offence for which the lowest punishment is provided if the same punishment is,
not provided for all.,
Section 73. Solitary confinement,
Whenever any person is convicted of an offence for which under this Code the Court has power to,
"sentence him to rigorous imprisonment, the Court may, by its sentence, order that the offender shall",
be kept in solitary confinement for any portion or portions of the imprisonment to which he is,
"sentenced, not exceeding three months in the whole, according to the following scale, that is to",
say—,
a time not exceeding one month if the term of imprisonment shall not exceed six months;,
LLaatteessttLLaawwss..ccoomm,
53,
a time not exceeding two months if the term of imprisonment shall exceed six months and [shall,
1,
not exceed one] year;,
a time not exceeding three months if the term of imprisonment shall exceed one year.,
——————————–,
"1. Subs. by Act 8 of 1882, sec. 5, for “be less than a”.",
Section 74. Limit of solitary confinement,
"In executing a sentence of solitary confinement, such confinement shall in no case exceed fourteen",
"days at a time, with intervals between the periods of solitary confinement of not less duration than",
"such periods: and when the imprisonment awarded shall exceed three months, the solitary",
"confinement shall not exceed seven days in any one month of the whole imprisonment awarded,",
with intervals between the periods of solitary confinement of not less duration than such periods.,
Section 75. Enhanced punishment for certain,
offences under Chapter XII or Chapter XVII,
after previous conviction,
75. Enhanced punishment for certain offences under Chapter XII or Chapter XVII after previous,
1,
"conviction.- Whoever, having been convicted,—",
"(a) by a Court in [India], of an offence punishable under Chapter XII or Chapter XVII of this Code",
2,
"with imprisonment of either description for a term of three years or upwards, [***]",
3,
[***],
3,
shall be guilty of any offence punishable under either of those Chapters with like imprisonment for,
"the like term, shall be subject for every such subsequent offence to [imprisonment for life], or to",
4,
imprisonment of either description for a term which may extend to ten years.],
—————————,
"1. Subs. by Act 3 of 1910, sec. 2, for the original section.",
"2. The words “British India” have successively been subs. by the A.O. 1948, the A.O. 1950",
"and Act 3 of 1951, sec. 3 and Sch., to read as above.",
"3. The word “or” at the end of clause (a) and clause (b) omitted by Act 3 of 1951, sec. 3 and",
Sch.,
LLaatteessttLLaawwss..ccoomm,
54,
"4. Subs. by Act 26 of 1955, sec. 117 and Sch., for “transportation for life” (w.e.f. 1-1-1956).",
"Section 76. Act done by a person bound, or",
"by mistake of fact believing himself bound,",
by law,
"Nothing is an offence which is done by a person who is, or who by reason of a mistake of fact and",
"not by reason of a mistake of law in good faith believes himself to be, bound by law to do it.",
Illustrations,
"(a) A, a soldier, fires on a mob by the order of his superior officer, in conformity with the commands",
of the law. A has committed no offence.,
"(b) A, an officer of a Court of Justice, being ordered by that Court to arrest Y, and, after due enquiry,",
"believing Z to be Y, arrests Z. A has Committed no offence.",
Section 77. Act of Judge when acting,
judicially,
Nothing is an offence which is done by a Judge when acting judicially in the exercise of any power,
"which is, or which in good faith he believes to be, given to him by law.",
Section 78. Act done pursuant to the,
judgment or order of Court,
"Nothing which is done in pursuance of, or which is warranted by the judgment or order of, a Court",
"of Justice ; if done whilst such judgment or order remains in force, is an offence, notwithstanding",
"the Court may have had no jurisdiction to pass such judgment or order, provided the person doing",
the act in good faith believes that the Court had such jurisdiction.,
"Section 79. Act done by a person justified, or",
"by mistake of fact believing himself justified,",
by law,
LLaatteessttLLaawwss..ccoomm,
55,
"Nothing is an offence which is done by any person who is justified by law, or who by reason of a",
"mistake of fact and not by reason of a mistake of law in good faith, believes himself to be justified",
"by law, in doing it.",
Illustration,
"A sees Z commit what appears to A to be a murder. A, in the exercise, to the best of his judgment",
"exerted in good faith, of the power which the law gives to all person of apprehending murderers in",
"the fact, seizes Z, in order to bring Z before the proper authorities. A has committed no offence,",
though it may turn out that Z was acting in self-defence.,
Section 80. Accident in doing a lawful act,
"Nothing is an offence which is done by accident or misfortune, and without any criminal intention",
or knowledge in the doing of a lawful act in a lawful manner by lawful means and with proper care,
and caution.,
Illustration,
"A is at work with a hatchet; the head flies off and kills a man who is standing by. Here, if there was",
"no want of proper caution on the part of A, his act is excusable and not an offence.",
"Section 81. Act likely to cause harm, but done",
"without criminal intent, and to prevent other",
harm,
Nothing is an offence merely by reason of its being done with the knowledge that it is likely to,
"cause harm, it if be done without any criminal intention to cause harm, and in good faith for the",
purpose of preventing or avoiding other harm to person or property.,
Explanation,
It is question of fact in such a case whether the harm to be prevented or avoided was of such a,
nature and so imminent as to justify or excuse the risk of doing the act with the knowledge that it,
was likely to cause harm.,
Illustrations,
LLaatteessttLLaawwss..ccoomm,
56,
"(a) A, the captain of a steam vessel, suddenly and without any fault or negligence on his part, finds",
"himself in such a position that, before he can stop his vessel, he must inevitably run down a boat",
"B, with twenty or thirty passengers on board, unless he changes the course of his vessel, and that,",
"by changing his course, he must incur risk of running down a boat C with only two passengers on",
"board, which he may possibly clear. Here, if A alters his course without any intention to run down",
"the boat C and in good faith for the purpose of avoiding the danger to the passengers in the boat B,",
"he is not guilty of an offence, though he may run down the boat C by doing an act which he knew",
"was likely to cause that effect, if it be found as a matter of fact that the danger which he intended",
to avoid was such as to excuse him in incurring the risk of running down the boat C.,
"(b) A, in great fire, pulls down houses in order to prevent the conflagration from spreading. He",
"does this with the intention in good faith of saving human life or property. Here, if it be found that",
the harm to be prevented was of such a nature and so imminent as to excuse A’s act. A is not guilty,
of the offence.,
Section 82. Act of a child under seven years,
of age,
Nothing is an offence which is done by a child under seven years of age.,
Section 83. Act of a child above seven and,
under twelve of immature understanding,
"Nothing is an offence which is done by a child above seven years of age and under twelve, who",
has not attained sufficient maturity of understanding to judge of the nature and consequences of his,
conduct on that occasion,
Section 84. Act of a person of unsound mind,
"Nothing is an offence which is done by a person who, at the time of doing it, by reason of",
"unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing what is",
either wrong or contrary to law.,
COMMENTS,
Insanity needs to be proved,
LLaatteessttLLaawwss..ccoomm,
57,
"The accused was charged and committed under section 302, I.P.C. for having caused the death of",
his wife and a female child with a chopper. Rejecting the plea of insanity the Supreme Court,
observed that the law presumes every person of the age of discretion to be sane unless the contrary,
is proved. It would be most dangerous to admit the defence of insanity upon arguments derived,
merely from the character of the crime. The mere fact that no motive was proved as to why the,
accused murdered his wife and child nor the fact that he made no attempt to run away when the,
"door was broken open, could not indicate that he was insane or that he did not have the necessary",
"mens rea for the commission of the offence; Seralli Wali Mohammed v. State of Maharashtra, AIR",
1972 SC 2443.,
Section 85. Act of a person incapable of,
judgment by reason of intoxication caused,
against his will,
"Nothing is an offence which is done by a person who, at the time of doing it, is, by reason of",
"intoxication, incapable of knowing the nature of the act, or that he is doing what is either wrong,",
or contrary to law: provided that the thing which intoxicated him was administered to him without,
his knowledge or against his will.,
COMMENTS,
Ingredients of involuntary drunkenness,
Voluntary drunkenness is no excuse for commission of a crime; Mirza Ghani Baig v. State of,
"Andhra Pradesh, (1997) 2 Crimes 19 (AP).",
Principle,
"(i) So far as knowledge is concerned, the standard of test is same as in case of intention; Mirza",
"Ghani Baig v. State of Andhra Pradesh, (1997) 2 Crimes 19 (AP).",
(ii) The court must attribute to the intoxicated man the same knowledge as if he was quite sober,
unless he was besides his mind altogether at the time of incident; Mirza Ghani Baig v. State of,
"Andhra Pradesh, (1997) 2 Crimes 19 (AP).",
LLaatteessttLLaawwss..ccoomm,
58,
Section 86. Offence requiring a particular,
intent of knowledge committed by one who is,
intoxicated,
"In cases where an act done is not an offence unless done with a particular knowledge or intent, a",
person who does the act in a state of intoxication shall be liable to be dealt with as if he had the,
"same knowledge as he would have had if he had not been intoxicated, unless the thing which",
intoxicated him was administered to him without his knowledge or against his will.,
COMMENTS,
Ingredients,
(i) The prosecution has to prove that in spite of drunkenness the accused had intention to commit,
"the act forbidden by law; Mirza Ghani Baig v. State of Andhra Pradesh, (1997) 2 Crimes 19 (AP).",
(ii) Sometimes intention on the part of the person who is drunk can also be assessed from the nature,
of weapon used in the commission of the offence. If a person uses a weapon which is not dangerous,
"and the attack results in death, a malicious intention cannot be drawn against him even though",
"drunkenness is no excuse; Mirza Ghani Baig v. State of Andhra Pradesh, (1997) 2 Crimes 19 (AP).",
Section 87. Act not intended and not known,
"to be likely to cause death or grievous hurt,",
done by consent,
"Nothing which is not intended to cause death, or grievous hurt, and which is not known by the doer",
"to be likely to cause death or grievous hurt, is an offence by reason of any harm which it may cause,",
"or be intended by the doer to cause, to any person, above eighteen years of age, who has given",
"consent, whether express or implied, to suffer that harm; or by reason of any harm which it may be",
known by the doer to be likely to cause to any such person who has consented to take the risk of,
that harm.,
Illustration,
A and Z agrees to fence with each other for amusement. This agreement implies the consent of,
"each to suffer any harm which, in the course of such fencing, may be caused without foul play ;",
"and if A, while playing fairly, hurts Z, A commits no offence.",
LLaatteessttLLaawwss..ccoomm,
59,
"Section 88. Act not intended to cause death,",
done by consent in good faith for person’s,
benefit.,
"Nothing which is not intended to cause death, is an offence by reason of any harm which it may",
"cause, or be intended by the doer to cause, or be known by the doer to be likely to cause, to any",
"person for whose benefit it is done in good faith, and who has given a consent, whether express or",
"implied, to suffer that harm, or to take the risk of that harm",
Illustration,
"A, a surgeon, knowing that a particular operation is likely to cause the death of Z, who suffers",
"under a painful complaint, but not intending to cause Z’s death, and intending in good faith, Z’s",
"benefit performs that operation on Z, with Z’s consent. A has committed no offence.",
comments,
Scope,
Consent is good defence to all offences in general. But if once it is proved in a case of rape that the,
"girl in question was below 16 years, her consent becomes wholly irrelevant and the accused is liable",
"for the offence as if no consent were obtained; Harpal Singh v. State of Himachal Pradesh, AIR",
1981 SC 361.,
Section 89. Act done in good faith for benefit,
"of child or insane person, by or by consent of",
guardian,
"Nothing which is done in good faith for the benefit of a person under twelve years of age, or of",
"unsound mind, by or by consent, either express or implied, of the guardian or other person having",
"lawful charge of that person, is an offence by reason of any harm which it may cause, or be intended",
by the doer to cause or be known by the doer to be likely to cause to that person :,
Provisos—Provided—,
"First.— That this exception shall not extend to the intentional causing of death, or to the attempting",
to cause death;,
LLaatteessttLLaawwss..ccoomm,
60,
Secondly.—That this exception shall not extend to the doing of anything which the person doing it,
"knows to be likely to cause death, for any purpose other than the preventing of death or grievous",
"hurt, or the curing of any grievous disease or infirmity;",
"Thirdly.— That this exception shall not extend to the voluntary causing of grievous hurt, or to the",
"attempting to cause grievous hurt, unless it be for the purpose of preventing death or grievous hurt,",
or the curing of any grievous disease or infirmity;,
"Fourthly.—That this exception shall not extend to the abetment of any offence, to the committing",
of which offence it would not extend.,
Illustration,
"A, in good faith, for his child’s benefit without his child’s consent, has his child cut for the stone",
"by a surgeon. Knowing it to be likely that the operation will cause the child’s death, but not",
"intending to cause the child’s death. A is within the exception, inasmuch as his object was the cure",
of the child.,
Section 90. Consent known to be given under,
fear or misconception,
"A consent is not such a consent as it intended by any section of this Code, if the consent is given",
"by a person under fear of injury, or under a misconception of fact, and if the person doing the act",
"knows, or has reason to believe, that the consent was given in consequence of such fear or",
misconception ; or,
Consent of insane person,
"if the consent is given by a person who, from unsoundness of mind, or intoxication, is unable to",
understand the nature and consequence of that to which he gives his consent; or,
Consent of child,
"unless the contrary appears from the context, if the consent is given by a person who is under twelve",
years of age.,
Section 91. Exclusion of acts which are,
offences independently of harm caused,
LLaatteessttLLaawwss..ccoomm,
61,
"The exceptions in sections 87, 88 and 89 do not extend to acts which are offences independently of",
"any harm which they may cause, or be intended to cause, or be known to be likely to cause, to the",
"person giving the consent, or on whose behalf the consent is given.",
Illustration,
Causing miscarriage (unless caused in good faith for the purpose of saving the life of the woman),
is an offence independently of any harm which it may cause or be intended to cause to the woman.,
"Therefore, it is not an offence “by reason of such harm”; and the consent of the woman or of her",
guardian to the causing of such miscarriage does not justify the act.,
Section 92. Act done in good faith for benefit,
of a person without consent,
Nothing is an offence by reason of any harm which it may cause to a person for whose benefit it is,
"done in good faith, even without that person’s consent, if the circumstances are such that it is",
"impossible for that person to signify consent, or if that person is incapable of giving consent, and",
has no guardian or other person in lawful charge of him from whom it is possible to obtain consent,
in time for the thing to be done with benefit:,
Provisos – Provided-,
"First.— That this exception shall not extend to the intentional causing of death, or the attempting",
to cause death;,
Secondly.—That this exception shall not extend to the doing of anything which the person doing it,
"knows to be likely to cause death, for any purpose other than the preventing of death or grievous",
"hurt, or the curing of any grievous disease or infirmity;",
"Thirdly.-— That this exception shall not extend to the voluntary causing of hurt, or to the",
"attempting to cause hurt, for any purpose other than the preventing of death or hurt;",
"Fourthly.—That this exception shall not extend to the abetment of any offence, to the committing",
of which offence it would not extend.,
Illustrations,
LLaatteessttLLaawwss..ccoomm,
62,
"(a) Z is thrown from his horse, and is insensible. A, a surgeon, finds that Z requires to be trepanned.",
"A, not intending Z’s death, but in good faith, for Z’s benefit, performs the trepan before Z recovers",
his power of judging for himself. A has committed no offence.,
"(b) Z is carried off by a tiger. A fires at the tiger knowing it to be likely that the shot may kill Z,",
"but not intending to kill Z, and in good faith intending Z’s benefit. A’s ball gives Z a mortal wound.",
A has committed on offence.,
"(c) A, a surgeon, sees a child suffer an accident which is likely to prove fatal unless an operation",
be immediately performed. There is not time to apply to the child’s guardian. A performs the,
"operation in spite of the entreaties of the child, intending, in good faith, the child’s benefit. A has",
committed no offence.,
"(d) A is in a house which is on fire, with Z, a child. People below hold out a blanket. A drops the",
"child from the housetop, knowing it to be likely that the fall may kill the child, but not intending to",
"kill the child, and intending, in good faith, the child’s benefit. Here, even if the child is killed by",
"the fall, A has committed no offence.",
Explanation,
"Mere pecuniary benefit is not benefit within the meaning of Sections 88, 89 and 92.",
Section 93. Communication made in good,
faith,
No communication made in good faith is an offence by reason of any harm to the person to whom,
"it is made, if it is made for the benefit of that person.",
Illustration,
"A, a surgeon in good faith, communicates to a patient his opinion that he cannot live. The patient",
"dies in consequence of the shock. A has committed no offence, though he knew it to be likely that",
the communication might cause the patient’s death.,
Section 94. Act to which a person is,
compelled by threats,
LLaatteessttLLaawwss..ccoomm,
63,
"Except murder, and offences against the State punishable with death, nothing is an offence which",
"is done by a person who is compelled to do it by threats, which, at the time of doing it, reasonably",
cause the apprehension that instant death to that person will otherwise be the consequence:,
"Provided the person doing the act did not of his own accord, or from a reasonable apprehension of",
"harm to himself short of instant death, place himself in the situation by which he became subject",
to such constraint.,
Explanation 1,
"A person who, of his own accord, or by reason of a threat of being beaten, joins a gang of dacoits,",
"knowing their character, is not entitled to the benefit of this exception, on the ground of his having",
been compelled by his associates to do anything that is an offence by law.,
Explanation 2,
"A person seized by a gang of dacoits, and forced, by threat of instant death, to do a thing which is",
"an offence by law ; for example, a smith compelled to take his tools and to force the door of a house",
"for the dacoits to enter and plunder it, is entitled to the benefit of this exception.",
Section 95. Act causing slight harm,
"Nothing is an offence by reason that it causes, or that it is intended to cause, or that it is known to",
"be likely to cause, any harm, if that harm is so slight that no person of ordinary sense and temper",
would complain of such harm.,
Section 96. Things done in private defence,
Nothing is an offence which is done in the exercise of the right of private defence.,
COMMENTS,
Harm,
"The fraternity of the non-gazetted employees, who were on strike, sought to make fun of the",
"complainant, who was a loyalists co-worker and was not participating in the strike. The fun was in",
the nature of having taken a photograph of the loyalist worker with a garland of shoes around his,
neck. The photograph was neither shown to the complainant nor published. In a prosecution under,
"section 504 against the accused for having insulted the complainant, the submission was made on",
LLaatteessttLLaawwss..ccoomm,
64,
behalf of the accused that the triviality of the act with a view to befooling a member of the fraternity,
should operate as a bar to the wrong alleged. The plea was not sustained and it was held that the,
complainant had been subjected to indignity although the Court took a lenient view of the matter,
"by merely admonishing the accused; Kishori Mohan v. State of Bihar, 1976 Cri LJ 654.",
Private defence: object,
(i) In judging whether accused has exceeded his right to private defence or not the court has to take,
"into account the weapons used; Madan Mohan Pandey v. State of Uttar Pradesh, (1991) Cr LJ 467",
(SC).,
(ii) The defence version regarding accused acting in self defence was liable to be proved by,
"accused; Rasikbhai Ram Singh Rana v. State of Gujarat, 1999 (1) Guj CR 176.",
"(iii) Where the right of private defence is pleaded, the defence must be a reasonable and probable",
version satisfying the cast that the harm caused by the accused was necessary for either warding,
off the attack or for forestalling the further reasonable apprehension from the side of the accused.,
The burden of establishing the plea of self-defence is on the accused and the burden stands,
discharged by showing preponderance of probabilities in favour of that plea on the basis of the,
"material on record; Rizan v. State of Chattisgarh, AIR 2003 SC 976.",
Right to private defence,
(i) The accused is not required to prove the plea of private defence of person beyond reasonable,
manner of doubt. The onus on the accused is only to show that the defence version is probable one,
which is reflected from the salient features and the circumstances in the prosecution case itself;,
"Sawai Ram v. State of Rajasthan, (1997) 2 Crimes 148 (Raj).",
(ii) Divergent views expressed by court where prosecution failed to explain the injuries sustained,
by accused in same occurrence. Hence referred to larger Bench; Ram Sunder Yadav v. State of,
"Bihar, 1999 Cr LJ 3671 (SC).",
Section 97. Right of private defence of the,
body and of property,
"Every person has a right, subject to the restrictions contained in section 99, to defend—",
LLaatteessttLLaawwss..ccoomm,
65,
"First.— His own body, and the body of any other person, against any offence affecting the human",
body;,
"Secondly.—The property, whether movable or immovable, of himself or of any other person,",
"against any act which is an offence falling under the definition of theft, robbery, mischief or",
"criminal trespass, or which is an attempt to commit theft, robbery, mischief or criminal trespass.",
Comments,
Defence of body and property: scope,
Where the accused persons armed with guns started continuous firing at members of prosecution,
"parties, even if accused has a claim of right to the property should have approached to Magistrate",
"it is difficult to concede right of private defence; Ayodhya Ram v. State, 1999 (4) Crimes 113: 1999",
SCC (Cr) 564.,
Section 98. Right of private defence against,
"the act of a person of unsound mind, etc.",
"When an act, which would otherwise be a certain offence, is not that offence, by reason of the",
"youth, the want of maturity of understanding, the unsoundness of mind or the intoxication of the",
"person doing that act, or by reason of any misconception on the part of that person, every person",
has the same right of private defence against that act which he would have if the act were that,
offence.,
Illustrations,
"(a) Z, under the influence of madness, attempts to kill A; Z is guilty of no offence. But A has the",
same right of private defence which he would have if Z were sane.,
"(b) A enters by night a house which he is legally entitled to enter Z, in good faith, taking A for a",
"house-breaker, attacks A. Here Z, by attacking A under this misconception, commits no offence.",
"But A has the same right of private defence against Z, which he would have if Z were not acting",
under that misconception.,
Section 99. Act against which there is no right,
of private defence,
LLaatteessttLLaawwss..ccoomm,
66,
There is no right of private defence against an act which does not reasonable cause the apprehension,
"of death or of grievous hurt, if done, or attempted to be done, by a public servant acting in good",
"faith under colour of his office, though that act, may not be strictly justifiable by law.",
There is no right of private defence against an act which does not reasonable cause the apprehension,
"of death or of grievous hurt, if done, or attempted to be done, by the direction of a public servant",
"acting in good faith under colour of his office, though that direction may not be strictly justifiable",
by law.,
There is no right of private defence in cases in which there is time to have recourse to the protection,
of the public authorities.,
Extent to which the right may be exercised,
The right to private defence in no case extends to the inflicting of more harm that it is necessary to,
inflict for the purpose of defence.,
Explanation 1,
"A person is not deprived of the right of private defence against an act done, or attempted to be done,",
"by a public servant, as such, unless he knows or has reason to believe, that the person doing the act",
is such public servant.,
Explanation 2,
"A person is not deprived of the right of private defence against an act done, or attempted to be done,",
"by the direction of a public servant, unless he knows, or has reason to believe, that the person doing",
"the act is acting by such direction, or unless such person states the authority under which he acts,",
"or if he has authority in writing, unless he produces such authority, if demanded.",
Comments,
Time to have recourse to the protection of the public authority,
Where there is an element of invasion or aggression on the property by a person who has right to,
"possession, then there is obviously no room to have recourse to the public authorities and the",
accused has the undoubted right to resist the attack and use even force if necessary; Puran Singh v.,
"State of Punjab, 1975 Cr LJ 1479 SC.",
LLaatteessttLLaawwss..ccoomm,
67,
Section 100. When the right of private,
defence of the body extends to causing death,
"The right of private defence of the body extends, under the restrictions mentioned in the last",
"preceding section, to the voluntary causing of death or of any other harm to the assailant, if the",
offence which occasions the exercise of the right be of any of the descriptions hereinafter,
"enumerated, namely:—",
First.— Such an assault as may reasonably cause the apprehension that death will otherwise be the,
consequence of such assault;,
Secondly.—Such an assault as may reasonably cause the apprehension that grievous hurt will,
otherwise be the consequence of such assault;,
Thirdly.— An assault with the intention of committing rape;,
Fourthly.—An assault with the intention of gratifying unnatural lust;,
Fifthly.— An assault with the intention of kidnapping or abducting;,
"Sixthly.— An assault with the intention of wrongfully confining a person, under circumstances",
which may reasonably cause him to apprehend that he will be unable to have recourse to the public,
authorities for his release.,
1[Seventhly.–– An act of throwing or administering acid or an attempt to throw or administer acid,
which may reasonably cause the apprehension that grievous hurt will otherwise be the consequence,
of such act],
COMMENTS,
Appreciation of death or grievious hurt cases,
"If the accused had already dealt several blows on the deceased, he could not have been in a position",
"to shoot at the accused persons. Having regard to some of the admissions made by the witnesses, it",
"appears that the accused took forcible possession of the land some days ago. Therefore, even",
"assuming that they came into possession after committing trespassing, if the deceased and others",
had gone to the land they cannot be held to be aggressors as pleaded by the defence; Khuddu v.,
"State of Uttar Pradesh, AIR 1993 SC 1538 (1540).",
LLaatteessttLLaawwss..ccoomm,
68,
Ingredients,
(i) Self inflicted injuries not explained by prosecution except the reliance on medical evidence,
"acquittal of accused not justified; Chuhar Singh v. State of Punjab, AIR 1999 SC 1052: 1991 SCC",
(Cr) 1066: 1998 (4) JT 449.,
(ii) The inmates clearly had a right of private defence against the intruders who tried to extract,
"money by force; Kishore Shambhudatta Mishra v. State of Maharashtra, (1989) Cr LJ 1149: AIR",
1989 SC 1173.,
Right of private defence to cause death,
(i) Under what circumstances accused gave knife blow to the deceased could not be explained by,
"accused, acquittal on ground of self defence not justified; State of Uttar Pradesh v. Laeeg, AIR",
1999 SC 1942: 1999 (5) SCC 588.,
"(ii) While being chased by deceased appellant attacked on deceased caused fire incised wound,",
"held exceeded the right of private defence, conviction under section 304 Part I proper; Suresh Singh",
"v. State, AIR 1999 SC 1773: 1999 (2) Crimes 42.",
(iii) Attack by single blow on the neck of deceased proved fatal. Held accused exceeded right of,
"private defence; Amar Singh v. State of Madhya Pradesh, 1997 SCC (Cr) 630.",
——————————————————————–,
"1. Inserted by Section 2 of ‘The Criminal Law (Amendment) Act, 2013′",
Section 101. When such right extends to,
causing any harm other than death,
"If the offence be not of any of the descriptions enumerated in the last preceding section, the right",
"of private defence of the body does not extend to the voluntary causing of death to the assailant,",
"but does extend, under the restrictions mentioned in Section 99, to the voluntary causing to the",
assailant of any harm other than death.,
LLaatteessttLLaawwss..ccoomm,
69,
Section 102. Commencement and,
continuance of the right of private defence of,
the body,
The right of private defence of the body commences as soon as a reasonable apprehension of danger,
to the body arises from an attempt or threat to commit the offence though the offence may not have,
been committed; and it continues as long as such apprehension of danger to the body continues.,
Section 103. When the right of private,
defence of property extends to causing death,
"The right of private defence of property extends, under the restrictions mentioned in section 99, to",
"the voluntary causing of death or of any other harm to the wrong-doer, if the offence, the",
"committing of which, or the attempting to commit which, occasions the exercise of the right, be an",
"offence of any of the descriptions hereinafter enumerated, namely:—",
First.— Robbery;,
Secondly.—House-breaking by night;,
"Thirdly.— Mischief by fire committed on any building, tent or vessel, which building, tent or vessel",
"is used as a human dwelling, or as a place for the custody of property;",
"Fourthly.—Theft, mischief, or house-trespass, under such circumstances as may reasonably cause",
"apprehension that death or grievous hurt will be the consequence, if such right of private defence",
is not exercised.,
STATE AMENDMENTS,
Karnataka,
"(1) In section 103, in clause Thirdly,—",
"(i) after the words “mischief by fire”, insert the words “or any explosive substance”;",
"(ii) after the words “as a human dwelling, or” insert the words “as a place of worship, or”.",
"(2) After clause Fourthly, insert the following clause, namely:—",
LLaatteessttLLaawwss..ccoomm,
70,
“Fifthly.—Mischief by fire or any explosive substance committed on any property used or intended,
"to be used for the purpose of Government or any local authority, statutory body or company owned",
or controlled by Government or railway or any vehicle used or adapted to be used for the carriage,
of passengers for hire or reward.”,
"[Vide Karnataka Act 8 of 1972, sec. 2 (w.e.f. 7-10-1972)].",
Maharashtra,
"In section 103, add the following at the end, namely:—",
“Fifthly.—Mischief by fire or any explosive substance committed on any property used or intended,
"to be used for the purposes of Government or any local authority, statutory body, company owned",
"or controlled by Government, railway or tramway, or on any vehicle used or adapted to be used,",
for the carriage of passengers for hire or reward”.,
"[Vide Maharashtra Act 19 of 1971, sec. 26 (w.e.f. 31-12-1971)].",
Uttar Pradesh,
"In section 103, after clause fourthly, add the following clause, namely:—",
“Fifthly.—Mischief by fire or any explosive substance committed on—,
"(a) Any property used or intended to be used for the purpose of Government, or any local authority",
"or other corporation owned or controlled by the Government, or",
"(b) any railway as defined in clause (4) of section 3 of the Indian Railways Act, 1890 or railways",
"stores as defined in the Railways Stores (Unlawful Possession) Act, 1955, or",
"(c) any transport vehicle as defined in *clause (33) of section 2 of the Motor Vehicles Act, 1939.”",
"[Vide Uttar Pradesh Act 29 of 1970, sec. 2 (w.e.f. 17-7-1970)].",
"* See clause (47) of sec. 2 of the Motor Vehicles Act, 1988.",
Section 104. When such right extends to,
causing any harm other than death,
LLaatteessttLLaawwss..ccoomm,
71,
"If the offence , the committing of which, or the attempting to commit which, occasions the exercise",
"of the right of private defence, be theft, mischief, or criminal trespass, not of any of the descriptions",
"enumerated in the last preceding section, that right does not extend to the voluntary causing of",
"death, but does extend, subject to the restrictions mentioned in section 99, to the voluntary causing",
to the wrong -doer of any harm other than death.,
Comments,
Right of private defence short of death,
Section 104 will apply if the wrong doers commit or attempt to commit any of the following,
"offences: (1) theft, (2) mischief or trespass not of the description which is covered under section",
"103, subject of course to restrictions mentioned in section 99; and in such a case the right of private",
defence of property would extend only to causing harm other than death to him; Jai Bhagwan v.,
"State of Haryana, AIR 1999 SC 1083.",
Section 105. Commencement and,
continuance of the right of private defence of,
property,
The Right of private defence of property commences when a reasonable apprehension of danger to,
the property commences.,
The right of private defence of property against theft continues till the offender has effected his,
"retreat with the property or either the assistance of the public authorities is obtained, or the property",
has been recovered.,
The right of private defence of property against robbery continues as long as the offender causes,
or attempts to cause to any person death or hurt or wrongful restraint of as long as the fear of instant,
death or of instant hurt or of instant personal restraint continues.,
The right of private defence of property against criminal trespass or mischief continues as long as,
the offender continues in the commission of criminal trespass or mischief.,
The right of private defence of property against house-breaking by night continues as long as the,
house-trespass which has been begun by such house-breaking continues.,
LLaatteessttLLaawwss..ccoomm,
72,
Section 106. Right of private defence against,
deadly assault when there is risk of harm to,
innocent person,
If in the exercise of the right of private defence against an assault which reasonably causes the,
"apprehension of death, the defender be so situated that he cannot effectually exercise that right",
without risk of harm to an innocent person his right or private defence extends to the running of,
that risk.,
Illustration,
A is attacked by a mob who attempt to murder him. He cannot effectually exercise his right of,
"private defence without firing on the mob, and he cannot fire without risk of harming young",
children who are mingled with the mob. A commits no offence if by so firing he harms any of the,
children.,
Section 107. Abetment of a thing,
"A person abets the doing of a thing, who—",
First.— Instigates any person to do that thing; or,
Secondly.—Engages with one or more other person or persons in any conspiracy for the doing of,
"that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to",
the doing of that thing; or,
"Thirdly.— Intentionally aids, by any act or illegal omission, the doing of that thing.",
Explanation 1,
"A person who, by wilful misrepresentation, or by wilful concealment of a material fact which he is",
"bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be",
"done, is said to instigate the doing of that thing.",
Illustration,
LLaatteessttLLaawwss..ccoomm,
73,
"A, a public officer, is authorized by a warrant from a Court of Justice to apprehend Z. B, knowing",
"that fact and also that C is not Z, wilfully represents to A that C is Z, and thereby intentionally",
causes A to apprehend C. Here B abets by instigation the apprehension of C.,
Explanation 2,
"Whoever, either prior to or at the time of the commission of an act, does anything in order to",
"facilitate the commission of that act, and thereby facilitate the commission thereof, is said to aid",
the doing of that act.,
Section 108. Abettor,
"A person abets an offence, who abets either the commission of an offence, or the commission of",
"an act which would be an offence, if committed by a person capable of law of committing an",
offence with the same intention or knowledge as that of the abettor.,
Explanation 1,
The abetment of the illegal omission of an act may amount to an offence although the abettor may,
not himself be bound to do that act.,
Explanation 2,
"To constitute the offence of abetment it is not necessary that the act abetted should be committed,",
or that the effect requisite to constitute the offence should be caused.,
Illustrations,
(a) A instigates B to murder C. B refuses to do so. A is guilty of abetting B to commit murder.,
(b) A instigates B to murder D. B in pursuance of the instigation stabs D. D recovers from the,
wound. A is guilty of instigating B to commit murder.,
Explanation 3,
"It is not necessary that the person abetted should be capable by law of committing an offence, or",
"that he should have the same guilty intention or knowledge as that of abettor, or any guilty intention",
or knowledge.,
LLaatteessttLLaawwss..ccoomm,
74,
Illustrations,
"(a) A, with a guilty intention, abets a child or a lunatic to commit an act which would be an offence,",
"if committed by a person capable by law of committed an offence, and having the same intention",
"as A. Here A, whether the act be committed or not, is guilty of abetting an offence.",
"(b) A, with the intention of murdering Z, instigates B, a child under seven years of age, to do an act",
"which causes Z’s death. B, in consequence of the abetment, does the act in the absence of A and",
"thereby causes Z’s death. Here, though B was not capable by law of committing an offence. A is",
"liable to be punished in the same manner as if B had been capable by law of committing an offence,",
"and had committed murder, and he is therefore subject to the punishment of death.",
"(c) A instigates B to set fire to a dwelling-house, B, in consequence of the unsoundness of his mind,",
"being incapable of knowing the nature of the act, or that he is doing what is wrong or contrary to",
"law, sets fire to the house in consequence of A’s instigation. B has committed no offence, but A is",
"guilty of abetting the offence of setting fire to a dwelling house, and is liable to the punishment",
provided for that offence.,
"(d) A, intending to cause a theft to be committed, instigates B to take property belonging to Z out",
of Z’s possession. A induces B to believe that the property belongs to A. B takes the property out,
"of Z’s possession, in good faith, believing it to be A’s property. B, acting under this misconception,",
"does not take dishonestly, and therefore does not commit theft. But A is guilty of abetting theft,",
and is liable to the same punishment as if B had committed theft.,
Explanation 4,
"The abetment of an offence being an offence, the abetment of such an abetment is also as offence.",
Illustration,
"A instigates B to instigate C to murder Z. B accordingly instigates C to murder Z, and C commits",
that offence in consequence of B’s instigation. B is liable to be punished for his offence with the,
"punishment for murder; and, as A instigated B to commit the offence, A is also liable to the same",
punishment.,
Explanation 5,
LLaatteessttLLaawwss..ccoomm,
75,
It is not necessary to the commission of the offence of abetment by conspiracy that the abettor,
should concert the offence with the person who commits it. It is sufficient if he engages in the,
conspiracy in pursuance of which the offence is committed.,
Illustration,
A concerts with B a plan for poisoning Z. It is agreed that A shall administer the poison. B then,
"explains the plan to C mentioning that a third person is to administer the poison, but without",
"mentioning A’s name. C agrees to procure the poison, and procures and delivers it to B for the",
purpose of its being used in the manner explained. A administers the poison; Z dies in consequence.,
"Here, though A and C have not conspired together, yet C has been engaged in the conspiracy in",
pursuance of which Z has been murdered. C has therefore committed the offence defined in this,
section and is liable to the punishment for murder.,
Section 108A. Abetment in India of offences,
outside India,
108A. Abetment in India of offences outside India.- A person abets an offence within the meaning,
1,
"of this Code who, in [India], abets the commission of any act without and beyond 2[India] which",
2,
would constitute an offence if committed in [India].,
2,
Illustration,
"A, in [India], instigates B, a foreigner in Goa, to commit a murder in Goa.",
2,
A is guilty of abetting murder.,
——————————,
"1. Added by Act 4 of 1898, sec. 3.",
"2. The words “British India” have successively been subs. by the A.O. 1948, the A.O. 1950",
"and Act 3 of 1951, sec. 3 and Sch., to read as above.",
Section 109. Punishment of abetment if the,
"act abetted is committed in consequence, and",
where no express provision is made for its,
punishment,
LLaatteessttLLaawwss..ccoomm,
76,
"Whoever abets any offence shall, if the act abetted is committed in consequence of the abetment,",
"and no express provision is made by this Code for the punishment of such abetment, be punished",
with the punishment provided for the offence.,
Explanation,
"An act or offence is said to be committed in consequence of abetment, when it is committed in",
"consequence of the instigation or in pursuance of the conspiracy, or with the aid, which constitutes",
the abetment.,
Illustrations,
"(a) A offers a bribe to B, a public servant, as a reward for showing A some favour in the exercise",
of B’s official functions. B accepts the bribe. A has abetted the offence defined in Section 161.,
"(b) A instigates B to give false evidence. B, in consequence of the instigation, commits that offence.",
"A is guilty of abetting that offence, and is liable to the same punishment as B.",
"(c) A and B conspire to poison Z. A in pursuance of the conspiracy, procures the poison and delivers",
"it to B in order that he may administer it to Z. B in pursuance of the conspiracy, administers the",
poison to Z in A’s absence and thereby causes Z’s death. Here B is guilty of murder. A is guilty of,
"abetting that offence by conspiracy, and is liable to the punishment for murder.",
CLASSIFICATION OF OFFENCE,
Punishment—Same as for offence abetted—According as offence abetted is cognizable or non-,
cognizable—According as offence abetted is bailable or non-bailable—Triable by court by which,
offence abetted is triable—Non-compoundable.,
Section 110. Punishment of abetment if,
person abetted does act with different,
intention from that of abettor,
"Whoever abets the commission of an offence shall, if the person abetted does the act with a different",
"intention or knowledge from that of the abettor, be punished with the punishment provided for the",
offence which would have been committed if the act had been done with the intention or knowledge,
of the abettor and with no other.,
LLaatteessttLLaawwss..ccoomm,
77,
CLASSIFICATION OF OFFENCE,
Punishment—Same as for offence abetted—According as offence abetted is cognizable or non-,
cognizable—According as offence abetted is bailable or non-bailable—Triable by court by which,
offence abetted is triable—Non-compoundable.,
Section 111. Liability of abettor when one act,
abetted and different act done,
"When an act is abetted and a different act is done, the abettor is liable for the act done, in the same",
manner and to the same extent as if he had directly abetted it:,
Proviso,
"Provided the act done was a probable consequence of the abetment, and was committed under the",
"influence of the instigation, or with the aid or in pursuance of the conspiracy which constituted the",
abetment.,
Illustrations,
"(a) A instigates a child to put poison into the food of Z, and gives him poison for that purpose. The",
"child, in consequence of the instigation, by mistake puts the poison into the food of Y, which is by",
"the side of that of Z. Here, if the child was acting under the influence of A’s instigation, and the act",
done was under the circumstances a probable consequence of the abetment. A is liable in the same,
manner and to the same extent as if he had instigated the child to put the poison into the food of Y.,
(b) A instigates B to burn Z’s house. B sets fire to the house and at the same time commits theft of,
"property there. A, though guilty of abetting the burning of the house, is not guilty of abetting the",
"theft; for the theft was a distinct act, and not a probable consequence of the burning.",
"(c) A instigates B and C to break into an inhabited house at midnight for the purpose of robbery,",
"and provides them with arms for that purpose. B and C break into the house, and being resisted by",
"Z, one of the inmates, murder Z. Here, if that murder was the probable consequence of the abetment,",
A is liable to the punishment provided for murder.,
CLASSIFICATION OF OFFENCE,
LLaatteessttLLaawwss..ccoomm,
78,
Punishment—Same as for offence intended to be abetted—According as offence abetted is,
cognizable or non-cognizable—According as offence abetted is bailable or non-bailable—Triable,
by court by which offence abetted is triable—Non-compoundable.,
Section 112. Abettor when liable to,
cumulative punishment for act abetted and,
for act done,
If the act for which the abettor is liable under the last preceding section is committed in addition to,
"the act abetted, and constitutes a distinct offence, the abettor is liable to punishment for each of the",
offences.,
Illustration,
"A instigates B to resist by force a distress made by a public servant. B, in consequence, resists that",
"distress. In offering the resistance, B voluntarily causes grievous hurt to the officer executing the",
"distress. As be has committed both the offence of resisting the distress, and the offence of",
"voluntarily causing grievous hurt, B is liable to punishment for both these offences; and, if A knew",
that B was likely voluntarily to cause grievous hurt in resisting the distress A will Also be liable to,
punishment for each of the offences.,
Section 113. Liability of abettor for an effect,
caused by the act abetted different from that,
intended by the abettor,
"When an act is abetted with the intention on the part of the abettor of causing a particular effect,",
"and an act for which the abettor is liable in consequence of the abetment, cause a different effect",
"from that intended by the abettor, the abettor is liable for the effect caused, in the same manner and",
"to the same extent as if he had abetted the act with the intention of causing that effect, provided he",
knew that the act abetted was likely to cause that effect.,
Illustration,
"A instigates B to cause grievous hurt to Z. B, in consequence of the instigation, causes grievous",
"hurt to Z. Z dies in consequence. Here, if A knew that the grievous hurt abetted was likely to cause",
"death, A is liable to be punished with the punishment provided for murder.",
LLaatteessttLLaawwss..ccoomm,
79,
CLASSIFICATION OF OFFENCE,
Punishment—Same as for offence committed—According as offence abetted is cognizable or non-,
cognizable—According as offence abetted is bailable or non-bailable—Triable by court by which,
offence abetted is triable—Non-compoundable.,
Section 114. Abettor present when offence is,
committed,
"Whenever any person, who is absent would be liable to be punished as an abettor, is present when",
"the act or offence for which he would be punishable in consequence of the abetment is committed,",
he shall be deemed to have committed such act or offence.,
CLASSIFICATION OF OFFENCE,
Punishment—Same as for offence committed—According as offence abetted is cognizable or non-,
cognizable—According as offence abetted is bailable or non-bailable—Triable by court by which,
offence abetted is triable—Non-compoundable.,
Section 115. Abetment of offence punishable,
with death or imprisonment for life-if offence,
not committed,
"Whoever abets the commission of an offence punishable with death or [imprisonment for life],",
1,
"shall, if that offence be not committed in consequence of the abetment, and no express provision is",
"made by this Code for the punishment of such abetment, be punished with imprisonment of either",
"description for a term which may extend to seven years, and shall also be liable to fine;",
If act causing harm be done in consequence- and if any act for which the abettor is liable in,
"consequence of the abetment, and which causes hurt to any person, is done, the abettor shall be",
"liable to imprisonment of either description for a term which may extend to fourteen years, and",
shall also be liable to fine.,
Illustration,
"A instigates B to murder Z. The offence is not committed. If B had murdered Z, he would have",
been subject to the punishment of death or 1[imprisonment for life]. Therefore A is liable to,
imprisonment for a term which may extend to seven years and also to a fine; and if any hurt be,
LLaatteessttLLaawwss..ccoomm,
80,
"done to Z in consequence of the abetment, he will be liable to imprisonment for a term which may",
"extend to fourteen years, and to fine.",
CLASSIFICATION OF OFFENCE,
Para I,
Punishment—Imprisonment for 7 years and fine—According as offence abetted is cognizable or,
non-cognizable—non-bailable—Triable by court by which offence abetted is triable—Non-com-,
poundable.,
Para II,
Punishment—Imprisonment for 14 years and fine—According as offence abetted is cognizable or,
non-cognizable—non-bailable—Triable by court by which offence abetted is triable—Non-com-,
poundable.,
————————-,
"1. Subs. by Act 26 of 1955, sec. 117 and Sch., for “transportation for life” (w.e.f. 1-1-1956).",
Section 116. Abetment of offence punishable,
with imprisonment-if offence be not,
committed,
"Whoever abets an offence punishable with imprisonment shall, if that offence be not committed in",
"consequence of the abetment, and no express provision is made by this Code for the punishment of",
"such abetment, be punished with imprisonment of any description provided for that offence for a",
term which may extend to one-fourth part of the longest term provided for that offence; or with,
"such fine as is provided for the offence, or with both ;",
If abettor or person abetted be a public servant whose duty it is to prevent offence.— and if,
"the abettor or the person abetted is a public servant, whose duty it is to prevent the commission of",
"such offence, the abettor shall be punished with imprisonment of any description provided for that",
"offence, for a term which may extend to one-half of the longest term provided for that offence, or",
"with such fine as is provided for the offence, or with both.",
Illustrations,
LLaatteessttLLaawwss..ccoomm,
81,
"(a) A offers a bribe to B, a public servant, as a reward for showing A some favour in the exercise",
of B’s official functions. B refuses to accept the bribe. A is punishable under this section.,
"(b) A instigates B to give false evidence. Here, if B does not give false evidence, A has s",
"nevertheless committed the offence defined in this section, and is punishable accordingly.",
"(c) A, a police-officer, whose duty it is to prevent robbery, abets the commission of robbery. Here,",
"though the robbery be not committed, A is liable to one-half of the longest term of imprisonment",
"provided for that offence, and also to fine.",
"(d) B abets the commission of a robbery by A, a police-officer, whose duty it is to prevent that",
"offence. Here, though the robbery be not committed, B is liable to one-half of the longest term of",
"imprisonment provided for the offence of robbery, and also to fine.",
CLASSIFICATION OF OFFENCE,
Para I,
"Punishment—Imprisonment extending to a quarter part of the longest term, provided for the",
"offence, or fine, or both—According to offence abetted is cognizable or non-cognizable—",
According as offence abetted is bailable or non-bailable—Triable by court by which offence,
abetted is triable—Non-compoundable.,
Para II,
"Punishment—Imprisonment extending to half of the longest term, provided for the offence, or fine,",
or both—According as offence abetted is cognizable or non-cognizable—According as offence,
abetted is bailable or non-bailable—Triable by court by which offence abetted is triable—Non-,
compoundable.,
Section 117. Abetting commission of offence,
by the public or by more than ten persons,
Whoever abets the commission of an offence by the public generally or by any number or class of,
"persons exceeding ten, shall be punished with imprisonment of either description for a term which",
"may extend to three years, or with fine, or with both.",
Illustration,
LLaatteessttLLaawwss..ccoomm,
82,
A affixes in a public place a placard instigating a sect consisting of more than ten members to meet,
"at a certain time and place, for the purpose of attacking the members of an adverse sect, while",
engaged in a procession. A has committed the offence defined in this section.,
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 3 years, or fine, or both—According as offence abetted is",
cognizable or non-cognizable—According as offence abetted is bailable or non-bailable—Triable,
by court by which offence abetted is triable—Non-compoundable.,
Section 118. Concealing design to commit,
offence punishable with death or,
imprisonment for life,
Whoever intending to facilitate or knowing it to be likely that he will thereby facilitate the commis-,
sion of an offence punishable with death or [imprisonment for life];,
1,
[Voluntarily conceals by any act or omission or by the use of encryption or any other information,
2,
"hiding tool, the existence of a design] to commit such offence or makes any representation which",
"he knows to be false respecting such design,",
"If offence be committed—if offence be not committed.—shall, if that offence be committed, be",
"punished with imprisonment of either description for a term which may extend to seven years, or,",
"if the offence be not committed, with imprisonment of either description, for a term which may",
extend to three years; and in either case shall also be liable to fine.,
Illustration,
"A, knowing that dacoity is about to be committed at B, falsely informs the Magistrate that a dacoity",
"is about to be committed at C, a place in an opposite direction, and thereby misleads the Magistrate",
with intent to facilitate the commission of the offence. The dacoity is committed at B in pursuance,
of the design. A is punishable under this section.,
CLASSIFICATION OF OFFENCE,
Para I,
Punishment—Imprisonment for 7 years and fine—According as offence abetted is cognizable or,
non-cognizable—Non-bailable—Triable by court by which offence abetted is triable—Non-com-,
poundable.,
LLaatteessttLLaawwss..ccoomm,
83,
Para II,
Punishment—Imprisonment for 3 years and fine—According as offence abetted is cognizable or,
non-cognizable—Bailable—Triable by court by which offence abetted is triable—Non-,
compoundable.,
—————————–,
"1. Subs. by Act 26 of 1955, sec. 117 and Sch., for “transportation for life” (w.e.f. 1-1-1956).",
"2. Subs. by Act 10 of 2009, sec. 51(c), for “Voluntarily conceals, by any act or illegal omission,,",
the existence of a design”.,
Section 119. Public servant concealing,
design to commit offence which it is his duty,
to prevent,
"Whoever, being a public servant, intending to facilitate or knowing it to be likely that he will",
thereby facilitate the commission of an offence which it is his duty as such public servant to prevent;,
[Voluntarily conceals by any act or omission or by the use of encryption or any other information,
1,
"hiding tool, the existence of a design] to commit such offence or makes any representation which",
"he knows to be false respecting such design,",
"If offence be committed.—shall, if the offence be committed, be punished with imprisonment of",
"any description provided for the offence, for a term which may extend to one-half of the longest",
"term of such imprisonment, or with such fine as is provided for that offence, or with both;",
"If offence be punishable with death, etc.—or, if the offence be punishable with death",
"or [imprisonment for life], with imprisonment of either description for a term which may extend",
2,
to ten years;,
"If offence be not committed.—or if the offence be not committed, shall be punished with",
imprisonment of any description provided for the offence for a term which may extend to one-,
"fourth part of the longest term of such imprisonment or with such fine as is provided for the offence,",
or with both.,
Illustration,
"A, an officer of police, being legally bound to give information of all designs to commit robbery",
"which may come to his knowledge, and knowing that B designs to commit robbery, omits to give",
LLaatteessttLLaawwss..ccoomm,
84,
"such information, with intent to facilitate the commission of that offence. Here A has by an illegal",
"omission concealed the existence of B’s design, and is liable to punishment according to the",
provision of this section.,
CLASSIFICATION OF OFFENCE,
Para I,
"Punishment—Imprisonment extending to half of the longest term provided for the offence, or fine,",
or both—According as offence abetted is cognizable or non-cognizable—According as offence,
abetted is bailable or non-bailable—Triable by court which offence abetted is triable—Non-com-,
poundable.,
Para II,
Punishment—Imprisonment for 10 years—According as offence abetted is cognizable or non-,
cognizable—Non-bailable—Triable by court by which offence abetted is triable—Non-,
compoundable.,
Para III,
Punishment—Imprisonment extending to a quarter part of the longest term provided for the,
"offence, or fine, or both—According as offence abetted is cognizable or non-cognizable—",
Bailable—Triable by court by which offence abetted is triable—Non-compoundable.,
——————————-,
"1. Subs. by Act 10 of 2009, sec. 51(d), “voluntarily conceals,” by any Act or illegal ommission,",
the existence of a design”.,
"2. Subs. by Act 26 of 1955, sec. 117 and Sch., for “transportation for life” (w.e.f 1-1-1956).",
Section 120. Concealing design to commit,
offence punishable with imprisonment,
"Whoever, intending to facilitate or knowing it to be likely that he will thereby facilitate the",
"commission of an offence punishable with imprisonment,",
"voluntarily conceals, by any act or illegal omission, the existence of a design to commit such",
"offence, or makes any representation which he knows to be false respecting such design,",
LLaatteessttLLaawwss..ccoomm,
85,
"If offence be committed—if offence be not committed.—shall, if the offence be committed, be",
"punished with imprisonment of the description provided for the offence, for a term which may",
"extend to one-fourth, and, if the offence be not committed, to one-eighth, of the longest term of",
"such imprisonment, or with such fine as is provided for the offence, or with both.",
CLASSIFICATION OF OFFENCE,
Para I,
Punishment—Imprisonment extending to a quarter part of the longest term provided for the,
"offence, or fine, or both—According as offence abetted is cognizable or non-cognizable—",
According as offence abetted is bailable or non-bailable—Triable by court by which offence,
abetted is triable—Non-compoundable.,
Para II,
Punishment—Imprisonment extending to one-eighth part of the longest term provided for the,
"offence, or fine, or both—According as offence abetted is cognizable or non-cognizable—",
Bailable—Triable by court by which offence abetted is triable—Non-compoundable.,
Comments,
Allegations of conspiracy in committing murder by group of 30 to 40 persons even though a strong,
"suspicion raised regarding involvement of respondent where incident led to murder, prosecution",
"evidence inconsistent – reversal of acquittal was proper; State of Haryana v. Pradeep Kumar, 1999",
SCC (Cr) 358: 1999 (1) Crime 8 (SC).,
120A. Definition of criminal conspiracy.,
"120A. Definition of criminal conspiracy.- When two or more persons agree to do, or cause to be",
1,
"done,—",
"(1) an illegal act, or",
"(2) an act which is not illegal by illegal means, such an agreement is designated a criminal",
conspiracy:,
Provided that no agreement except an agreement to commit an offence shall amount to a criminal,
conspiracy unless some act besides the agreement is done by one or more parties to such agreement,
in pursuance thereof.,
LLaatteessttLLaawwss..ccoomm,
86,
Explanation,
"It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely",
incidental to that object.],
COMMENTS,
Appraisal of law of conspiracy,
The prosecution is not required to prove that perpetrators agreed to do or cause to be done the,
"illegal act; Mohd. Usman Mohd. Hussain Maniyar v. State of Maharashtra, AIR 1981 SC 162:",
(1981) SC Cr 381: (1981) Cr LJ 597.,
The evidence as to transmission of thoughts sharing the unlawful design may be sufficient; Kehar,
"Singh v. State (Delhi Admn.), (1989) Cr LJ 1: AIR 1988 SC 1883.",
————————,
"1. Ins. by Act 8 of 1913, sec. 3.",
Section 120B. Punishment of criminal,
conspiracy,
120B. Punishment of criminal conspiracy.—(1) Whoever is a party to a criminal conspiracy to,
1,
"commit an offence punishable with death, [imprisonment for life] or rigorous imprisonment for a",
2,
"term of two years or upwards, shall, where no express provision is made in this Code for the",
"punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence.",
(2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an,
offence punishable as aforesaid shall be punished with imprisonment of either description for a,
"term not exceeding six months, or with fine or with both.",
CLASSIFICATION OF OFFENCE,
Para I,
Punishment—Same as for abetment of the offence which is the object of the conspiracy—,
According as the offence which is the object of conspiracy is cognizable or non-cognizable—,
According as offence which is object of conspiracy is bailable or non-bailable—Triable by court,
by which abetment of the offence which is the object of conspiracy is triable—Non-compoundable.,
LLaatteessttLLaawwss..ccoomm,
87,
Para II,
"Punishment—Imprisonment for six months or fine, or both—non-cognizable—Bailable—Triable",
by Magistrate of the first class—Non-compoundable.,
Comments,
Common intention,
"(i) Before a person can be convicted with the aid of section 34 IPC, the ingredients that are required",
to be satisfied are that he along with others committed a criminal act and act was done in furtherance,
"of common intention; Chandra Kant v. State of Madhya Pradesh, AIR 1999 SC 1557.",
(ii) The offence under section 120B is an agreement between the parties to do a particular act.,
Association or relation to lead a conspiracy is not enough to establish the intention to kill the,
"deceased; Sanjiv Kumar v. State of Himachal Pradesh, AIR 1999 SC 782: 1999 (1) JT 716.",
(iii) To bring home the charge of conspiracy within the ambit of section 120B it is necessary to,
establish that there was an agreement between the parties for doing an unlawful Act. It is difficult,
"to establish conspiracy by direct evidence; Vijayan v. State of Kerala, 1999 (3) SCC 54: AIR 1999",
SC 1086.,
————————,
"1. Ins. by Act 8 of 1913, sec. 3.",
"2. Subs. by Act 26 of 1955, sec. 117 and Sch., for “transportation for life” (w.e.f. 1-1-1956).",
"Section 121. Waging, or attempting to wage",
"war, or abetting waging of war, against the",
Government of India,
"Whoever wages war against the [Government of India], or attempts to wage such war, or abets the",
1,
"waging of such war, shall be punished with death, or [imprisonment for life] [and shall also be",
2 3,
liable to fine].,
[Illustration],
4,
[***] A joins an insurrection against the [Government of India]. A has committed the offence,
5 6,
defined in this section.,
[* * *],
7,
LLaatteessttLLaawwss..ccoomm,
88,
CLASSIFICATION OF OFFENCE,
Punishment—Death or imprisonment for life and fine—Cognizable—Non-bailable—Triable by,
Court of Session—Non-compoundable.,
————————-,
"1. Subs. by the A.O. 1950, for “Queen”.",
"2. Subs. by Act 26 of 1955, sec. 117 and Sch., for “transportation for life” (w.e.f. 1-1-1956).",
"3. Subs. by Act 16 of 1921, sec. 2, for “and shall forfeit all his property”.",
"4. Subs. by Act 36 of 1957, sec. 3 and Sch. II, for “Illustrations” (w.e.f. 17-9-1957).",
"5. The brackets and letter “(a)” omitted by Act 36 of 1957, sec. 3 and Sch. II (w.e.f. 17-9-",
1957).,
"6. Subs. by the A.O. 1950, for “Queen”.",
7. Illustration (b) omitted by the A.O. 1950.,
Section 121A. Conspiracy to commit,
offences punishable by section 121,
121A. Conspiracy to commit offences punishable by section 121.— Whoever within or,
1,
"without [India] conspires to commit any of the offences punishable by Section 121, [***] or",
2 3,
"conspires to overawe, by means of criminal force or the show of criminal force, [the Central",
4,
"Government or any [State] Government [***], shall be punished with [imprisonment for life], or",
5 6 7,
"with imprisonment of either description which may extend to ten years, [and shall also be liable to",
8,
fine].,
Explanation,
"To constitute a conspiracy under this section, it is not necessary that any act or illegal omission",
shall take place in pursuance thereof.,
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for life, or imprisonment for 10 years and fine—Cognizable—Non-",
bailable—Triable by Court of Session—Non-compoundable.,
—————————,
"1. Ins. by Act 27 of 1870, sec. 4.",
LLaatteessttLLaawwss..ccoomm,
89,
"2. The words “British India” have successively been subs. by the A.O. 1948, the A.O. 1950",
"and Act 3 of 1951, sec. 3 and Sch., to read as above.",
3. The words “or to deprive the Queen of the sovereignty of the Provinces or of any part,
thereof” omitted by the A.O. 1950.,
"4. Subs. by the A.O. 1937, for “the Government of India” or any “Local Government”.",
"5. Subs. by the A.O. 1950, for “Provincial”.",
6. The words “or the Government of Burma” omitted by the A.O. 1948.,
"7. Subs. by Act 26 of 1955, sec. 117 and Sch., for “transportation for life or any shorter term”",
(w.e.f. 1-1-1956).,
"8. Subs. by Act 16 of 1921, sec. 3, for “and shall forfeit all his property”.",
"Section 122. Collecting arms, etc., with",
intention of waging war against the,
Government of India,
"Whoever collects men, arms or ammunition or otherwise prepares to wage war with the intention",
"of either waging or being prepared to wage war against the [Government of India], shall be",
1,
punished with[imprisonment for life] or imprisonment of either description for a term not,
2,
"exceeding ten years, [and shall also be liable to fine].",
3,
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for life, or imprisonment for 10 years and fine—Cognizable—Non-",
bailable—Triable by Court of Session—Non-compoundable.,
——————————–,
"1. Subs. by the A.O. 1950, for “Queen”.",
"2. Subs. by Act 26 of 1955, sec. 117 and Sch., for “transportation for life” (w.e.f. 1-1-1956).",
"3. Subs. by Act 16 of 1921, sec. 3, for “and shall forfeit all his property”.",
Section 123. Concealing with intent to,
facilitate design to wage war,
"Whoever by any act, or by any illegal omission, conceals the existence of a design to wage war",
"against the[Government of India], intending by such concealment to facilitate, or knowing it to be",
1,
"likely that such concealment will facilitate, the waging of such war, shall be punished with",
LLaatteessttLLaawwss..ccoomm,
90,
"imprisonment of either description for a term which may extend to ten years, and shall also be liable",
to fine.,
CLASSIFICATION OF OFFENCE,
Punishment—Imprisonment for 10 years and fine—Cognizable—Non-bailable—Triable by court,
of Session—Non-compoundable.,
"1. Subs. by the A.O. 1950, for “Queen”.",
"Section 124. Assaulting President, Governor,",
"etc., with intent to compel or restrain the",
exercise of any lawful power,
"Whoever, with the intention of including or compelling the [President] of India, or",
1,
"the [Governor [* * *]] of any [State], [* * *] [* * * ] [* * *] to exercise or refrain from exercising",
2 3 4 5 6 7,
"in any manner any of the lawful powers of such [President] or [Governor [* * *]],",
8 2 3,
"Assault or wrongfully restrains, or attempts wrongfully to restrain, or overawes, by means of",
"criminal force or the show of criminal force, or attempts so to overawe, such [President",
8,
"or [Governor [* * *]],",
2 3,
Shall be punished with imprisonment of either description for a term which may extend to seven,
"years, and shall also be liable to fine.",
CLASSIFICATION OF OFFENCE,
Punishment—Imprisonment for 7 years and fine—Cognizable—Non-bailable—Triable by Court,
of Session—Non-compoundable.,
——————————-,
"1. Subs. by the A.O. 1950, for “Governor General”.",
"2. Subs. by Act 3 of 1951, sec. 3 and Sch., for “Governor”.",
3. The words “or Rajpramukh” omitted by the A.O. 1956.,
"4. Subs. by the A.O. 1950, for “Province” which had been subs. by the A.O. 1937, for",
“Presidency”.,
5. The words “or a Lieutenant-Governor” omitted by the A.O. 1937.,
6. The words “or a Member of the Council of the Governor General of India” omitted by the,
A.O. 1948.,
LLaatteessttLLaawwss..ccoomm,
91,
7. The words “or of the Council of any Presidency” omitted by the A.O. 1937.,
"8. The original words “Governor General, Governor, Lieutenant-Governor or Member of",
"Council” have successfully been amended by the A.O. 1937, the A.O. 1948 and the A.O. 1950",
to read as above.,
Section 124A. Sedition,
"124A. Sedition.— Whoever, by words, either spoken or written, or by signs, or by visible",
1,
"representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or",
"attempts to excite disaffection towards. [* * *] the Government established by law in [India], [* *",
2 3 4,
"*] shall be punished with [imprisonment for life], to which fine may be added, or with",
5,
"imprisonment which may extend to three years, to which fine may be added, or with fine.",
Explanation 1,
The expression “disaffection” includes disloyalty and all feelings of enmity.,
Explanation 2,
Comments expressing disapprobation of the measures of the Government with a view to obtain,
"their alteration by lawful means, without exciting or attempting to excite hatred, contempt or",
"disaffection, do not constitute an offence under this section.",
Explanation 3,
Comments expressing disapprobation of the administrative or other action of the Government,
"without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an",
offence under this section.,
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for life and fine, or imprisonment for 3 years and fine, or fine—",
Cognizable—Non-bailable—Triable by Court of Session—Non-compoundable.,
COMMENTS,
Sedition: meaning,
The offence of sedition under section 124A is the doing of certain acts which would bring the,
"Government established by law in India into hatred or contempt, or create disaffection against it;",
"Bilal Ahmed Kaloo v. State of Andhra Pradesh, (1997) Supreme Today 127.",
LLaatteessttLLaawwss..ccoomm,
92,
————————————-,
"1. Subs. by Act 4 of 1898, sec. 4, for section 124A which had been ins. by Act 27 of 1870, sec.",
5.,
2. The words “Her Majesty or” omitted by the A.O. 1950. The words “or the Crown,
Representative ins. after the word “Majesty” by the A.O. 1937 were omitted by the A.O. 1948.,
"3. The words “British India” have successively been subs. by the A.O. 1948, the A.O. 1950",
"and Act 3 of 1951, sec. 3 and Sch., to read as above.",
4 The words “or British Burma” ins. by the A.O. 1937 omitted by the A.O. 1948.,
"5. Subs. by Act 26 of 1955, sec. 117 and Sch., for “transportation for life or any shorter term”",
(w.e.f. 1-1-1956).,
Section 125. Waging war against any Asiatic,
Power in alliance with the Government of,
India.,
Whoever wages war against the Government of any Asiatic Power in alliance or at peace with,
"the[Government of India] or attempts to wage such war, or abets the waging of such war, shall be",
1,
"punished with [imprisonment for life], to which fine may be added, or with imprisonment of either",
2,
"description for a term which may extend to seven years, to which fine may be added, or with fine.",
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for life and fine, or imprisonment for 7 years and fine, or fine—",
Cognizable—Non-bailable—Triable by Court of Session—Non-compoundable.,
———————————,
"1. Subs. by the A.O. 1950, for “Queen”.",
"2. Subs. by Act 26 of 1955, sec. 117 and Sch., for “transportation for life” (w.e.f. 1-1-1956).",
Section 126. Committing depredation on,
territories of Power at peace with the,
Government of India,
"Whoever commits depredation, or makes preparation to commit depredation, on the territories of",
"any Power in alliance or at peace with the [Government of India], shall be punished with",
1,
LLaatteessttLLaawwss..ccoomm,
93,
"imprisonment of either description for a term which may extend to seven years, and shall also be",
liable to fine and to forfeiture of any property used or intended to be used in committing such,
"depredation, or acquired by such depredation.",
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 7 years and fine, and forfeiture of certain property—Cognizable—",
Non-bailable—Triable by Court of Session—Non-compoundable.,
——————————–,
"1. Subs. by the A.O. 1950, for “Queen”.",
Section 127. Receiving Property taken by war,
on depredation mention in Sections 125 and,
126,
Whoever receives any property knowing the same to have been taken in the commission of any of,
"the offences mentioned in Sections 125 and 126, shall be punished with imprisonment of either",
"description for a term which may extend to seven years, and shall also be liable to fine and to",
forfeiture of the property so received.,
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 7 years and fine, and forfeiture of certain property—Cognizable—",
Non-bailable—Triable by Court of Session—Non-compoundable.,
Section 128. Public servant voluntary,
allowing prisoner of State or war to escape,
"Whoever, being a public servant and having the custody of any State prisoner or prisoner of war,",
"voluntarily allows such prisoner to escape from any place in which such prisoner is confined, shall",
"be punished with[imprisonment for life], or imprisonment of either description for a term which",
1,
"may extend to ten years, and shall also be liable to fine.",
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for life, or imprisonment for 10 years and fine—Cognizable—Non-",
bailable—Triable by Court of Session—Non-compoundable.,
LLaatteessttLLaawwss..ccoomm,
94,
—————————-,
"1. Subs. by Act 26 of 1955, sec. 117 and Sch., for “transportation for life” (w.e.f. 1-1-1956).",
Section 129. Public servant negligently,
suffering such prisoner to escape,
"Whoever, being a public servant and having the custody of any State prisoner or prisoner of war,",
negligently suffers such prisoner to escape from any place of confinement in which such prisoner,
"is confined, shall be punished with simple imprisonment for a term which may extend to three",
"years, and shall also be liable to fine.",
CLASSIFICATION OF OFFENCE,
Punishment—Simple Imprisonment for 3 years and fine—Cognizable—Bailable—Triable by,
Magistrate of the first class—Non-compoundable.,
"Section 130. Aiding escape of, rescuing or",
harbouring such prisoner,
Whoever knowingly aids or assists any State prisoner or prisoner of war in escaping from lawful,
"custody, or rescues or attempts to rescue any such prisoner, or harbours or conceals any such",
"prisoner who has escaped from lawful custody, or offers or attempts to offer any resistance to the",
"recapture of such prisoner, shall be punished with [imprisonment for life], or with imprisonment",
1,
"of either description for a term which may extend to ten years, and shall also be liable to fine.",
Explanation,
"A State prisoner or prisoner of war, who is permitted to be at large on his parole within certain",
"limits in[India], is said to escape from lawful custody if he goes beyond the limits within which he",
2,
is allowed to be at large.,
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for life, or imprisonment for 10 years and fine—Cognizable—Non-",
bailable—Triable by Court of Session—Non-compoundable.,
————————————,
"1. Subs. by Act 26 of 1955, sec. 117 and Sch., for “transportation for life” (w.e.f. 1-1-1956).",
LLaatteessttLLaawwss..ccoomm,
95,
"2. The words “British India” have sucessively been subs. by the A.O. 1948, the A.O. 1950 and",
"Act 3 of 1951, sec. 3 and Sch., to read as above.",
"Section 131. Abetting mutiny, or attempting",
"to seduce a soldier, sailor or airman from his",
duty,
"Whoever abets the committing of mutiny by an officer, soldier, [sailor or airman], in the",
1,
"Army, [Navy or Air Force] of the [Government of India] or attempts to seduce any such officer,",
2 3,
"soldier, [sailor or airman] from his allegiance or his duty, shall be punished with [imprisonment",
4 5,
"for life], or with imprisonment of either description for a term which may extend to ten years, and",
shall also be liable to fine.,
"[Explanation.—In this section the words “officer”, [“soldier”, [“sailor”] and “airman”] include",
6 7 8,
"any person subject to the [Army Act, [the Army Act, 1950 (46 of 1950, [the Naval Discipline",
9 10 11,
"Act, [***] the [Indian Navy (Discipline) Act, 1934 (34 of 1934)] [the Air Force Act or [the Air",
12 11 13 14,
"Force Act, 1950 (45 of 1950)], as the case may be]].",
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for life, or imprisonment for 10 years and fine—Cognizable—Non-",
bailable—Triable by Court of Session—Non-compoundable.,
—————————-,
"1. Subs. by Act 10 of 1927, sec. 2 and Sch. I, for “or sailor”.",
"2. Subs. by Act 10 of 1927, sec. 2 and Sch. I, for “or Navy”.",
"3. Subs. by the A.O. 1950, for “Queen”.",
"4. Subs. by Act 10 of 1927, sec. 2 and Sch. I, for “or sailor”.",
"5. Subs. by Act 26 of 1955, sec. 117 and Sch., for “transportation for life” (w.e.f. 1-1-1956).",
"6. Ins. by Act 27 of 1870, sec. 6.",
"7. Subs. by Act 10 of 1927, sec. 2 and Sch. I, for “and soldier”.",
"8. Ins. by Act 35 of 1934, sec. 2 and Sch.",
"9. Subs. by Act 10 of 1927, sec. 2 and Sch. I, for “Articles of War for the better government",
"of Her Majesty’s Army, or to the Articles of War contained in Act No. 5 of 1869″.",
"10. Subs. by Act 3 of 1951, sec. 3 and Sch., for “the Indian Army Act, 1911”.",
"11. Now see the Navy Act, 1957 (62 of 1957).",
LLaatteessttLLaawwss..ccoomm,
96,
12. The words “or that Act as modified by” omitted by the A.O. 1950.,
"13. Subs. by Act 14 of 1932, sec. 130 and Sch., for “or the Air Force Act”.",
"14. Subs. by Act 3 of 1951, sec. 3 and Sch., for “the Indian Air Force Act, 1932”.",
"Section 132. Abetment of mutiny, if mutiny",
is committed in consequence thereof,
"Whoever abets the committing of mutiny by an officer, soldier, [sailor or airman] in the",
1,
"Army, [Navy or Air Force] of the [Government of India], shall, if mutiny be committed in",
2 3,
"consequence of that abetment, be punished with death or with [imprisonment for life], or",
4,
"imprisonment of either description for a term which may extend to ten years, and shall also be liable",
to fine.,
CLASSIFICATION OF OFFENCE,
"Punishment—Death, or imprisonment for life, or imprisonment for 10 years and fine-Cognizable—",
Non-bailable—Triable by Court of Session—Non-compoundable.,
————————————-,
"1. Subs. by Act 10 of 1927, sec. 2 and Sch. I, for “or sailor”.",
"2. Subs. by Act 10 of 1927, sec 2 and Sch. I, for “or Navy”.",
"3. Subs. by the A.O. 1950, for “Queen”.",
"4. Subs. by Act 26 of 1955, sec. 117 and Sch., for “transportation for life” (w.e.f. 1-1-1956).",
"Section 133. Abetment of assault by soldier,",
"sailor or airman on his superior officer, when",
in execution of his office,
"Whoever abets an assault by an office, soldier, [sailor or airman], in the Army, [Navy or Air force]",
1 2,
"of the[Government of India], on any superior officer being in the execution of his office, shall be",
3,
"punished with imprisonment of either description for a term which may extend to three years, and",
shall also be liable to fine.,
CLASSIFICATION OF OFFENCE,
Punishment—Imprisonment for 3 years and fine—Cognizable—Non-Bailable—Triable by,
Magistrate of the first class—Non-compoundable.,
LLaatteessttLLaawwss..ccoomm,
97,
—————————,
"1. Subs. by Act 10 of 1927, sec. 2 and Sch. I, for “or sailor”.",
"2. Subs. by Act 10 of 1927, sec 2 and Sch. I, for “or Navy”.",
"3. Subs. by the A.O. 1950, for “Queen”.",
"Section 134. Abetment of such assault, if the",
assault is committed,
"Whoever abets an assault by an officer, soldier, [sailor, or airman], in the Army, [navy or Air",
1 2,
"force] of the[Government of India], on any superior officer being in the execution of his office,",
3,
"shall, if such assault be committed in consequence of that abetment be punished with imprisonment",
"of either description for a term which may extend to seven years, and shall also be liable to fine.",
CLASSIFICATION OF OFFENCE,
Punishment—Imprisonment for 7 years and fine—Cognizable—Non-bailable—Triable by,
Magistrate of the first class—Non-compoundable.,
——————————-,
"1. Subs. by Act 10 of 1927, sec. 2 and Sch. I, for “or sailor”.",
"2. Subs. by Act 10 of 1927, sec. 2 and Sch. I, for “or Navy”.",
"3. Subs. by the A.O. 1950, for “Queen”.",
Section 135. Abetment of desertion of,
"soldier, sailor or airman",
"Whoever abets the desertion of any officer, soldier, [sailor or airman], in the Army, [Navy or Air",
1 2,
"Force] of the[Government of India], shall be punished with imprisonment of either description for",
3,
"a term which may extend to two years, or with fine, or with both.",
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 2 years, or fine, or both—Cognizable—Bailable—Triable by any",
Magistrate—Non-compoundable.,
——————————-,
"1. Subs. by Act 10 of 1927, sec. 2 and Sch. I, for “or sailor”.",
"2. Subs. by Act 10 of 1927, sec. 2 and Sch. I, for “or Navy”.",
LLaatteessttLLaawwss..ccoomm,
98,
"3. Subs. by the A.O. 1950, for “Queen”.",
Section 136. Harbouring deserter,
"Whoever, except as hereinafter expected, knowing or having reason to believe that an officer,",
"soldier, [sailor or airman], in the Army, [Navy or air force] of the [Government of India], has",
1 2 3,
"deserted, harbours such officer, soldier, [sailor airman], shall be punished with imprisonment of",
1,
"either description for a term which may extend to two years, or with fine, or with both.",
Exception,
This provision does not extend to the case in which the harbour is given by a wife to her husband.,
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 2 years, or fine, or both—Cognizable—Bailable—Triable by any",
Magistrate—Non-compoundable.,
——————————-,
"1. Subs. by Act 10 of 1927, sec. 2 and Sch. I, for “or sailor”.",
"2. Subs. by Act 10 of 1927, sec. 2 and Sch. I, for “or Navy”.",
"3. Subs. by the A.O. 1950, for “Queen”.",
Section 137. Deserter concealed on board,
merchant vessel through negligence of master,
"The master or person in charge of a merchant vessel, on board of which any deserter from the",
"Army, [Navy or Air force] of the [Government of India] is concealed, shall, though ignorant of",
1 2,
"such concealment, be liable to a penalty not exceeding five hundred rupees, if he might have known",
"of such concealment but for some neglect of his duty as such master or person in charge, or but for",
some want of discipline on board of the vessel.,
CLASSIFICATION OF OFFENCE,
Punishment—Fine of 500 rupees—Non-Cognizable—Bailable—Triable by any Magistrate—Non-,
compoundable.,
——————————-,
"1. Subs. by Act 10 of 1927, sec. 2 and Sch. I, for “or Navy”.",
LLaatteessttLLaawwss..ccoomm,
99,
"2. Subs. by the A.O. 1950, for “Queen”.",
Section 138. Abetment of act of,
"insubordination by soldier, sailor or airman",
"Whoever abets what he knows to be an act of insubordination by an officer, soldier, [sailor or",
1,
"airman], in the Army,[Navy or Air Force] of the [Government of India], shall, if such act of",
2 3,
"insubordination be committed in consequence of that abetment, be punished with imprisonment of",
"either description for a term which may extend to six months, or with fine, or with both.",
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 6 months, or fine, or both—Cognizable—Bailable—Triable by",
any Magistrate—Non-compoundable.,
——————————–,
"1. Subs. by Act 10 of 1927, sec. 2 and Sch. I, for “or sailor”.",
"2. Subs. by Act 10 of 1927, sec. 2 and Sch. I, for “or Navy”.",
"3. Subs. by the A.O. 1950, for “Queen”.",
Section 138A. Application of foregoing,
sections to the Indian Marine Service,
"[Ins. by Act 14 of 1887, sec.79 and Rep. by the Amending Act, 1934 (35 of 1934), s. 2 and Sch.]",
Section 139. Persons subject to certain Acts,
"No person subject to [the Army Act, [the Army Act, 1950 (46 of 1950), or the Naval Discipline",
1 2,
"Act, [[***][the Indian Navy (Discipline) Act, 1934 (34 of 1934)], [the Air Force Act [the Air",
3 4 5 6 7,
"Force Act, 1950 (45 of 1950)]]], is subject to punishment under this Code for any of the offences",
defined in this Chapter.,
————————————-,
"1. Subs. by Act 10 of 1927, sec. 2 and Sch. I, for “any Article of War for the Army or Navy of",
"the Queen, or for any part of such Army or Navy”.",
"2. Subs. by Act 3 of 1951, sec. 3 and Sch., for “the Indian Army Act, 1911”.",
"3. Ins. by Act 35 of 1934, sec. 2 and Sch.",
4. The words “or that Act as modified” omitted by the A.O. 1950.,
LLaatteessttLLaawwss..ccoomm,
100,
"5. Now see the Navy Act, 1957 (62 of 1957).",
"6. Subs. by Act 14 of 1932, sec. 130 and Sch., for “or the Air Force Act”.",
"7. Subs. by Act 3 of 1951, sec. 3 and Sch., for “the Indian Air Force Act, 1932”.",
Section 140. Wearing garb or carrying token,
"used by soldier, sailor or airman",
"Whoever, not being a soldier, [sailor or airman] in the Military, [Naval or Air] service of",
1 2,
"the [Government of India], wears any garb or carries any token resembling any garb or token used",
3,
"by such a soldier, [sailor or airman] with the intention that it may be believed that he is such a",
1,
"soldier, [sailor or airman], shall be punished with imprisonment of either description for a term",
1,
"which may extend to three month, or with fine which may extend to five hundred rupees, or with",
both,
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 3 months, or fine of 500 rupees, or both—Cognizable—Bailable—",
Triable by any Magistrate—Non- compoundable.,
———————————-,
"1. Subs. by Act 10 of 1927, sec. 2 and Sch. I, for “or sailor”.",
"2. Subs. by Act 10 of 1927, sec. 2 and Sch. I, for “or Navy”.",
"3. Subs. by the A.O. 1950, for “Queen”.",
Section 141. Unlawful assembly,
"An assembly of five or more persons is designated an “unlawful assembly”, if the common object",
of the persons composing that assembly is—,
"First.— To overawe by criminal force, or show of criminal force, 1[the Central or any State",
"Government or Parliament or the Legislature of any State], or any public servant in the exercise of",
the lawful power of such public servant; or,
"Second.— To resist the execution of any law, or of any legal process; or",
"Third.— To commit any mischief or criminal trespass, or other offence; or",
LLaatteessttLLaawwss..ccoomm,
101,
"Fourth.— By means of criminal force, or show of criminal force, to any person, to take or obtain",
"possession of any property, or to deprive any person of the enjoyment of a right of way, or of the",
"use of water or other incorporeal right of which he is in possession or enjoyment, or to enforce any",
right or supposed right; or,
"Fifth.— By means of criminal force, or show of criminal force, to compel any person to do what",
"he is not legally bound to do, or to omit to do what he is legally entitled to do.",
Explanation,
"An assembly which was not unlawful when it assembled, may subsequently become an unlawful",
assembly.,
————————————,
"1. Subs. by the A.O. 1950, for “Central or any Provincial Government or Legislature”.",
Section 142. Being member of unlawful,
assembly,
"Whoever, being aware of facts which render any assembly an unlawful assembly, intentionally",
"joins that assembly, or continues in it, is said to be a member of an unlawful assembly.",
Section 143. Punishment,
"Whoever is a member of an unlawful assembly, shall be punished with imprisonment of either",
"description for a term which may extend to six month, or with fine, or with both.",
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 6 months, or fine, or both—cognizable—Bailable—Triable by any",
Magistrate—Non-compoundable.,
Section 144. Joining unlawful assembly,
armed with deadly weapon,
"Whoever, being armed with any deadly weapon, or with anything which, used as a weapon of",
"offence, is likely to cause death, is a member of an unlawful assembly, shall be punished with",
LLaatteessttLLaawwss..ccoomm,
102,
"imprisonment of either description for a term which may extend to two years, or with fine, or with",
both.,
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 2 years, or fine, or both—Cognizable—Bailable—Triable by any",
Magistrate—Non-compoundable.,
Section 145. Joining or continuing in,
"unlawful assembly, knowing it has been",
commanded to disperse,
"Whoever joins or continues in an unlawful assembly, knowing that such unlawful assembly has",
"been commanded in the manner prescribed by law to disperse, shall be punished with imprisonment",
"of either description for a term which may extend to two years, or with fine, or with both.",
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 2 years, or fine, or both—Cognizable—Bailable—Triable by any",
Magistrate—Non-compoundable.,
Section 146. Rioting,
"Whenever force or violence is used by an unlawful assembly, or by any member thereof, in",
"prosecution of the common object of such assembly, every member of such assembly is guilty of",
the offence of rioting.,
Section 147. Punishment for rioting,
"Whoever is guilty of rioting, shall be punished with imprisonment of either description for a term",
"which may extend to two years, or with fine, or with both.",
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 2 years, or fine, or both—Cognizable—Bailable—Triable by any",
Magistrate—Non-compoundable.,
"Section 148. Rioting, armed with deadly",
weapon,
LLaatteessttLLaawwss..ccoomm,
103,
"Whoever is guilty of rioting, being armed with a deadly weapon or with anything which, used as a",
"weapon of offence, is likely to cause death, shall be punished with imprisonment of either",
"description for a term which may extend to three years, or with fine, or with both.",
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 3 years, or fine, or both—Cognizable—Bailable—Triable by",
Magistrate of the first class—Non-compoundable.,
COMMENTS,
Unlawful Assembly to cause death,
Where the presence of injured eye witnesses at the place of occurrence was undoubtful and their,
"evidence corroborated by medical evidence supported by prompt FIR against all 16 accused, merely",
non-explanation of injuries sustained by accused persons by these witnesses is not fatal for,
prosecution and as such common object of unlawful assembly to cause death is established; State,
"of Madhya Pradesh v. Bhagwan Singh, 2000 Cr LJ 123 (MP).",
Nexus between common object and offence,
There must be nexus between the common object and the offence committed and if it is found that,
the same was committed to accomplish the common object every member of the assembly will,
"become liable for the same; Allauddin Mian Sharif Mian v. State of Bihar, (1989) Cr LJ 1466: AIR",
1989 SC 1456.,
Section 149. Every member of unlawful,
assembly guilty of offence committed in,
prosecution of common object,
If an offence is committed by any member of an unlawful assembly in prosecution of the common,
"object of that assembly, or such as the members or that assembly knew to be likely to be committed",
"in prosecution of that object, every person who, at the time of the committing of that offence, is a",
"member of the same assembly, is guilty of that offence.",
CLASSIFICATION OF OFFENCE,
LLaatteessttLLaawwss..ccoomm,
104,
Punishment—The same as for the offence—According as offence is cognizable or non-,
cognizable—According as offence is bailable or non-bailable—Triable by court by which the,
offence is triable—Non-compoundable.,
COMMENTS,
Scope and applicability,
"(i) When the charge is under section 149, the presence of the accused as part of unlawful assembly",
is sufficient for conviction even if no overt act is imputed to him; Yunis alias Kariya v. State of,
"Madhya Pradesh, AIR 2003 SC 539.",
(ii) Conviction by taking recourse to section 149 cannot be made out unless five specified objects,
"enumerated in section 141 are not proved; Ramashish v. State of Bihar, 1999 (6) JT 560: 1999 (2)",
JCC (SC) 471.,
"(iii) Even if no overt act is imputed to a particular person, when the charge is under section 149,",
the presence of the accused as part of unlawful assembly is sufficient for conviction; Yunis alias,
"Kariya v. State of Madhya Pradesh, AIR 2003 SC 539.",
Joint liability of members of unlawful assembly,
"(i) It is well settled that once a membership of an unlawful assembly is established, it is not",
incumbent on the prosecution to establish whether any specific overt act has been assigned to any,
accused. Mere membership of the unlawful assembly is sufficient; State of Maharashtra v. Joseph,
"Mingel Koli, (1997) 2 Crimes 228 (Bom).",
(ii) Every member of an unlawful assembly is vicariously liable for the acts done by others either,
in the prosecution of the common object of the unlawful assembly or such which the members of,
the unlawful assembly knew were likely to be committed; State of Maharashtra v. Joseph Mingel,
"Koli, (1997) 2 Crimes 228 (Bom).",
"Section 150. Hiring, or conniving at hiring, of",
persons to join unlawful assembly,
"Whoever hires or engages, or employs, or promotes, or connives at the hiring, engagement or",
"employment of any person to join or become a member of any unlawful assembly, shall be",
"punishable as a member of such unlawful assembly, and for any offence which may be committed",
LLaatteessttLLaawwss..ccoomm,
105,
"by any such person as a member of such unlawful assembly in pursuance of such hiring,",
"engagement or employment, in the same manner as if he had been a member of such unlawful",
"assembly, or himself had committed such offence.",
CLASSIFICATION OF OFFENCE,
"Punishment—The same as for a member of such assembly, and for any offence committed by any",
members of such assembly—Cognizable—According as offence is bailable or non-bailable—,
Triable by court by which the offence is triable—Non-compoundable.,
Section 151. Knowingly joining or,
continuing in assembly of five or more,
persons after it has been commanded to,
disperse,
Whoever knowingly joins or continues in any assembly of five or more persons likely to cause a,
"disturbance of the public peace, after such assembly has been lawfully commanded to disperse,",
shall be punished with imprisonment of either description for a term which may extend to six,
"months, or with fine, or with both.",
Explanation,
"If the assembly is an unlawful assembly with the meaning of section 141, the offender will be",
punishable under section 145.,
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 6 months, or fine, or both—Cognizable—Bailable—Triable by",
any Magistrate—Non-compoundable.,
Section 152. Assaulting or obstructing public,
"servant when suppressing riot, etc.",
"Whoever assaults or threatens to assault, or obstructs or attempts to obstruct, any public servant in",
"the discharge of his duty as such public servant, in endeavouring to disperse an unlawful assembly,",
"or to suppress a riot or affray, or uses, or threatens, or attempts to use criminal force to such public",
LLaatteessttLLaawwss..ccoomm,
106,
"servant, shall be punishable with imprisonment of either description for a term which may extend",
"to three years, or with fine, or with both.",
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 3 years, or fine, or both—Cognizable—Bailable—Triable by",
Magistrate of the first class—Non-compoundable.,
Section 153. Wantonly giving provocation,
with intent to cause riot-if rioting be,
committed-if not committed,
"Whoever malignantly, or wantonly, by doing anything which is illegal, gives provocation to any",
person intending of knowing it to be likely that such provocation will cause the offence of rioting,
"to be committed, shall, if the offence of rioting be committed in consequence of such provocation,",
"be punished with imprisonment of either description for a term which may extend to one year, or",
"with fine, or with both ; and if the offence of rioting be not committed, imprisonment of either",
"description for a term which may extend to six months, or with fine, or with both.",
CLASSIFICATION OF OFFENCE,
Para I,
"Punishment—Imprisonment for 1 year, or fine, or both—Cognizable—Bailable—Triable by any",
Magistrate—Non-compoundable.,
Para II,
"Punishment—Imprisonment for 6 months, or fine, or both—Cognizable—Bailable—Triable by",
Magistrate of the first class—Non-compoundable.,
Section 153A. Promoting enmity between,
"different groups on grounds of religion, race,",
"place of birth, residence, language, etc., and",
doing acts prejudicial to maintenance of,
harmony,
LLaatteessttLLaawwss..ccoomm,
107,
"[153A. Promoting enmity between different groups on grounds of religion, race, place of birth,",
1,
"residence, language, etc., and doing acts prejudicial to maintenance of harmony.—(1) Whoever—",
"(a) By words, either spoken or written, or by signs or by visible representations or otherwise,",
"promotes or attempts to promote, on grounds of religion, race, place or birth, residence, language,",
"caste or community or any other ground whatsoever, disharmony or feelings of enmity, hatred or",
"ill-will between different religious, racial, language or regional groups or castes or communities,",
or,
(b) Commits any act which is prejudicial to the maintenance of harmony between different,
"religious, racial, language or regional groups or castes or communities, and which disturbs or is",
"likely to disturb the public tranquility, 2[or]",
"[(c) Organizes any exercise, movement, drill or other similar activity intending that the participants",
2,
in such activity shall use or be trained to use criminal force or violence of knowing it to be likely,
"that the participants in such activity will use or be trained to use criminal force or violence, or",
participates in such activity intending to use or be trained to use criminal force or violence or,
knowing it to be likely that the participants in such activity will use or be trained to use criminal,
"force or violence, against any religious, racial, language or regional group or caste or community",
and such activity for any reason whatsoever causes or is likely to cause fear or alarm or a feeling,
"of insecurity amongst members of such religious, racial, language or regional group or caste or",
"community,]",
"Shall be punished with imprisonment which may extend to three years, or with fine, or with both.",
"Offence committed in place of worship, etc.— (2) Whoever commits an offence specified in sub-",
section (1) in any place of worship or in any assembly engaged in the performance of religious,
"worship or religious ceremonies, shall be punished with imprisonment which may extend to five",
years and shall also be liable to fine.],
CLASSIFICATION OF OFFENCE,
Para I,
"Punishment—Imprisonment for 3 years, or fine, or both—Cognizable—Non-bailable—Triable by",
any Magistrate of the first class—Non-compoundable.,
Para II,
LLaatteessttLLaawwss..ccoomm,
108,
Punishment—Imprisonment for 5 years and fine—Cognizable—Non-bailable—Triable by,
Magistrate of the first class—Non-compoundable.,
Comments,
Mens rea,
Mens rea is a necessary ingredient for the offence under section 153A of the Indian Penal Code;,
"Bilal Ahmed Kaloo v. State of Andhra Pradesh, (1997) 7 Supreme Today 127.",
Publication,
Publication of the words or representation is not necessary under section 153A of the Indian Penal,
"Code; Bilal Ahmed Kaloo v. State of Andhra Pradesh, (1997) Supreme Today 127.",
—————————-,
"1. Section 153A subs. by Act 41 of 1961, sec. 2 (w.e.f. 12-9-1961) and again subs. by Act 35 of",
"1969, sec. 2, for the former section (w.e.f. 4-9-1969).",
"2. Ins. by Act 31 of 1972, sec. 2 (w.e.f. 14-6-1972).",
153AA. Punishment for knowingly carrying,
"arms in any procession or organising, or",
holding or taking part in any mass drill or,
mass training with arms,
"[153AA. Punishment for knowingly carrying arms in any procession or organising, or holding or",
1,
taking part in any mass drill or mass training with arms.—Whoever knowingly carries arms in any,
procession or organizes or holds or takes part in any mass drill or mass training with arms in any,
public place in contravention of any public notice or order issued or made under section 144A of,
"the Code of Criminal Procedure, 1973 shall be punished with imprisonment for a term which may",
extend to six months and with fine which may extend to two thousand rupees.,
Explanation,
”Arms” means articles of any description designed or adapted as weapons for offence or defence,
"and includes fire-arms, sharp edged weapons, lathis, dandas and sticks.]",
CLASSIFICATION OF OFFENCE,
LLaatteessttLLaawwss..ccoomm,
109,
Punishment—Imprisonment for 6 months and fine of 2000 rupees—Cognizable—Non-bailable—,
Triable by any Magistrate—Non-compoundable.,
——————————-,
"1. Ins. by Act 25 of 2005, sec. 44.",
"Section 153B. Imputations, assertions",
prejudicial to national-integration,
"[153B. Imputations, assertions prejudicial to national-integration.— (1) Whoever, by words either",
1,
"spoken or written or by signs or by visible representations or otherwise, –",
"(a) Makes or publishes any imputation that any class of persons cannot, by reason or their being",
"members of any religious, racial, language or regional group or caste or community, bear true faith",
and allegiance to Constitution of India as by law established or uphold the sovereignty and integrity,
"of India, or",
"(b) Asserts, counsels, advises, propagates or publishes that any class or persons shall, by reason of",
"their being members of any religious, racial, language or regional group or caste or community, be",
denied or deprived of their rights as citizens of India or,
"(c) makes or publishes any assertion, counsel, plea or appeal concerning the obligation of any class",
"of persons, by reason of their being members of any religious, racial, language or regional group",
"or caste or community, and such assertion, counsel, plea or appeal causes or is likely to cause",
"disharmony or feelings of enmity or hatred or ill-will between such members and other persons,",
"shall be punished with imprisonment which may extend to three years, or with fine, or with both.",
"(2) Whoever commits an offence specified in sub-section (1), in any place of worship or in any",
"assembly engaged in the performance of religious worship or religious ceremonies, shall be",
punished with imprisonment which may extend to five years and shall also be liable to fine.],
CLASSIFICATION OF OFFENCE,
Para I,
"Punishment—Imprisonment for 3 years, or fine, or both—Cognizable—Non-bailable—Triable by",
Magistrate of the first class—Non-compoundable.,
LLaatteessttLLaawwss..ccoomm,
110,
Para II,
Punishment—Imprisonment for 5 years and fine—Cognizable—Non-bailable—Triable by,
Magistrate of the first class—Non-compoundable.,
————————————-,
"1. Ins. by Act 31 of 1972, sec. 2 (w.e.f. 14-6-1972).",
Section 154. Owner or occupier of land on,
which an unlawful assembly is held,
"Whenever any unlawful assembly or riot takes place, the owner or occupier of the land upon which",
"such unlawful assembly is held, or such riot is committed, and any person having or claiming an",
"interest in such land, shall be punishable with fine not exceeding one thousand rupees, if he or his",
"agent or manager, knowing that such offence is being or has been committed, or having reason to",
"believe it is likely to be committed, do not give the earliest notice thereof in his or their power to",
"the principal officer at the nearest police-station, and do not, in the case of his or their having reason",
"to believe that it was about to be committed, use all lawful means in his or their power to prevent,",
"it and, in the event of its taking place, do not use all lawful means in his or their power to disperse",
or suppress the riot or unlawful assembly.,
CLASSIFICATION OF OFFENCE,
"Punishment—Fine of 1,000 rupees—Non-cognizable—Bailable—Triable by any Magistrate—",
Non-compoundable.,
Section 155. Liability of person for whose,
benefit riot is committed,
Whenever a riot is committed for the benefit or on behalf of any person who is the owner or,
"occupier of any land, respecting which such riot takes place or who claims any interest in such",
"land, or in the subject of any dispute which gave rise to the riot, or who has accepted or derived",
"any benefit there from, such person shall be punishable with fine, if he or his agent of manage,",
having reason to believe that such riot was likely to be committed or that the unlawful assembly by,
"which such riot was committed was likely to be held, shall not respectively use all lawful means in",
LLaatteessttLLaawwss..ccoomm,
111,
"his or their power to prevent such assembly or riot from taking place, and for suppressing and",
dispersing the same.,
CLASSIFICATION OF OFFENCE,
Punishment—Fine—Non-cognizable—Bailable—Triable by any Magistrate—Non-,
compoundable.,
Section 156. Liability of agent of owner of,
occupier for whose benefit riot is committed,
Whenever a riot is committed for the benefit or on behalf of any person who is the owner or,
"occupier of any land respecting which such riot takes place, or who claims any interest in such",
"land, or in the subject or nay dispute which gave rise to the riot, or who has accepted or derived",
"any benefit there from,",
"the agent or manager or such person shall be punishable with fine, if such agent or manager, having",
"reason to believe that such riot was likely to be committed, or that the unlawful assembly by which",
"such riot was committed was likely to be held, shall not use all lawful means in his power to prevent",
such riot or assembly from taking place and for suppressing and dispersing the same.,
CLASSIFICATION OF OFFENCE,
Punishment—Fine—Non-cognizable—Bailable—Triable by any Magistrate—Non-,
compoundable.,
Section 157. Harbouring persons hired for an,
unlawful assembly,
"Whoever harbours, receives or assembles, in any house or premises in his occupation or charge, or",
"under his control any persons, knowing that such persons have been hired, engaged or employed,",
"or are about to be hired, engaged or employed, to join or become members of an unlawful assembly,",
shall be punished with imprisonment of either description for a term which may extend to six,
"months, or with fine, or with both.",
CLASSIFICATION OF OFFENCE,
LLaatteessttLLaawwss..ccoomm,
112,
"Punishment—Imprisonment for 6 months, or fine, or both—Cognizable—Bailable—Triable by",
any Magistrate—Non-compoundable.,
Section 158. Being hired to take part in an,
unlawful assembly or riot,
"Whoever is engaged, or hired, or offers or attempts to be hired or engaged, to do or assist in doing",
"any of the acts specified in Section 141, shall be punished with imprisonment of either description",
"for a term which may extend to six months, or with fine, or with both,",
"or to go armed.— and whoever, being so engaged or hired as aforesaid, goes armed, or engages",
"or offers to go armed, with any deadly weapon or with anything which used as a weapon of offence",
"is likely to cause death, shall be punished with imprisonment of either description for a term which",
"may extend to two years, or with fine, or with both.",
CLASSIFICATION OF OFFENCE,
Para I,
"Punishment—Imprisonment for 6 months, or fine, or both—Cognizable—Bailable—Triable by",
any Magistrate—Non-compoundable.,
Para II,
"Punishment—Imprisonment for 2 years, or fine, or both—Cognizable—Bailable—Triable by any",
Magistrate—Non-compoundable.,
Section 159. Affray,
"When two or more persons, by fighting in a public place, disturb the public peace, they are said to",
“commit an affray”.,
Section 160. Punishment for committing,
affray,
"Whoever commits an affray, shall be punished with imprisonment of either description for a term",
"which may extend to one month, or with fine which may extend to one hundred rupees, or with",
both.,
CLASSIFICATION OF OFFENCE,
LLaatteessttLLaawwss..ccoomm,
113,
"Punishment—Imprisonment for one month, or fine of 100 rupees, or both—Cognizable—",
Bailable—Triable by any Magistrate—Non-compoundable.,
Section 161-165A. Repealed,
"[Rep. by the Prevention of Corruption Act, 1988 (49 or 1988), sec. 31.]",
"Section 166. Public servant disobeying law,",
with intent to cause injury to any person,
"Whoever, being a public servant, knowingly disobeys any direction of the law as to the way in",
"which he is to conduct himself as such public servant, intending to cause, or knowing it to be likely",
"that he will, by such disobedience, cause injury to any person, shall be punished with simple",
"imprisonment for a term which may extend to one year, or with fine, or with both.",
Illustration,
"A, being an officer directed by law to take property in execution, in order to satisfy a decree",
"pronounced in Z’s favour by a Court of Justice, knowingly disobeys that direction of law, with the",
knowledge that he is likely thereby to cause injury to Z. A has committed the offence defined in,
this section.,
CLASSIFICATION OF OFFENCE,
"Punishment—Simple imprisonment for 1 year, or fine, or both—Non-cognizable—Bailable—",
Triable by Magistrate of the first class—Non-compoundable.,
1[Section 166A.(Punishment for non,
recording of information),
"Whoever, being a public servant,–",
(a) knowingly disobeys any direction of the law which prohibits him from requiring the attendance,
"at any place of any person for the purpose of investigation into an offence or any other matter, or",
"(b) knowingly disobeys, to the prejudice of any person, any other direction of the law regulating",
"the manner in which he shall conduct such investigation, or",
(c) fails to record any information given to him under sub-section (1) of section 154 of the Code of,
"Criminal Procedure, 1973, in relation to cognizable offence punishable under section 326A, section",
LLaatteessttLLaawwss..ccoomm,
114,
"326B, section 354, section 354B, section 370, section 370A, section 376, section 376A, section",
"376B, section 376C, section 376D, section 376E or section 509, shall be punished with rigorous",
"imprisonment for a term which shall not be less than six months but which may extend to two years,",
and shall also be liable to fine.,
Section 166B. Punishment for non,
treatment of victim,
"Whoever, being in charge of a hospital, public or private, whether run by the Central Government,",
"the State Government, local bodies or any other person, contravenes the provisions of section 357C",
"of the Code of Criminal Procedure, 1973, shall be punished with imprisonment for a term which",
may extend to one year or with fine or with both],
——————————————————-,
"1 Inserted by Section 3 of ‘The Criminal Law (Amendment) Act, 2013′",
Section 167. Public servant farming an,
incorrect document with intent to cause,
injury,
"Whoever, being a public servant, and being, as [such public servant, charged with the preparation",
1,
"or translation of any document or electronic record, frames, prepares or translates that document or",
"electronic record] in a manner which he knows or believes to be incorrect, intending thereby to",
"cause or knowing it to be likely that he may thereby cause injury to any person, shall be punished",
"with imprisonment of either description for a term which may extend to three years, or with fine,",
or with both.,
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 3 years, or fine, or both—Cognizable—Bailable—Triable by",
Magistrate of the first class—Non-compoundable.,
—————————,
"1. Subs. by Act 21 of 2000, sec. 91 and Sch. I, for certain words (w.e.f. 17-10-2000).",
LLaatteessttLLaawwss..ccoomm,
115,
Section 168. Public servant unlawfully,
engaging in trade,
"Whoever, being a public servant, and being legally bound as such public servant not to engage in",
"trade, engages in trade, shall be punished with simple imprisonment for a term which may extend",
"to one year, or with fine, or with both.",
CLASSIFICATION OF OFFENCE,
"Punishment—Simple imprisonment for 1 year, or fine, or both—Non-cognizable—Bailable—",
Triable by Magistrate of the first class—Non-compoundable.,
Section 169. Public servant unlawfully,
buying or bidding for property,
"Whoever, being a public servant, and being legally bound as such public servant, not to purchase",
"or bid for certain property, purchases or bids for that property, either in his own name or in the",
"name of another, or jointly, or in shares with others, shall be punished with simple imprisonment",
"for a term which may extend to two years, or with fine, or with both; and the property, if purchased,",
shall be confiscated.,
CLASSIFICATION OF OFFENCE,
"Punishment—Simple imprisonment for 2 years, or fine, or both and confiscation of property, if",
purchased—Non-cognizable—Bailable—Triable by Magistrate of the first class—Non-,
compoundable.,
Section 170. Personating a public servant,
"Whoever pretends to hold any particular office as a public servant, knowing that he does not hold",
"such office or falsely personates any other person holding such office, and in such assumed",
"character does or attempts to do any act under colour of such office, shall be punished with",
"imprisonment of either description for a term which may extend to two years, or with fine, or with",
both.,
CLASSIFICATION OF OFFENCE,
LLaatteessttLLaawwss..ccoomm,
116,
"Punishment—Imprisonment for 2 years, or fine, or both—Cognizable—Non-bailable—Triable by",
any Magistrate—Non Compoundable.,
Section 171. Wearing garb or carrying token,
used by public servant with fraudulent intent,
"Whoever, not belonging to a certain class of public servants, wear any garb or carries any token",
"resembling any garb or token used by that class of public servants, with the intention that it may be",
"believed, or with the knowledge that it is likely to be believed, that he belongs to that class of public",
"servants, shall be punished with imprisonment of either description for a term which may extend",
"to three months, or with fine which may extend to two hundred rupees, or with both.",
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 3 months, or fine of 200 rupees, or both—Cognizable—Bailable—",
Triable by any Magistrate—Non-compoundable.,
"Section 171A. Candidate, Electoral right",
defined,
"[171A. “Candidate”, “Electoral right” defined.— For the purposes of this Chapter—",
1,
[(a) “candidate” means a person who has been nominated as a candidate at an election;],
2,
"(b) “electoral right” means the right of a person to stand, or not to stand as, or to withdraw from",
"being, a candidate or to vote or refrain from voting at any election.]",
———————————-,
"1. Section 171A ins. by Act 39 of 1920, sec. 2.",
"2. Subs. by Act 40 of 1975, sec. 9, for clause (a) (w.e.f. 6-8-1975).",
Section 171B. Bribery,
[171B. Bribery.—(1) Whoever—,
1,
(i) gives a gratification to any person with the object of inducing him or any other person to exercise,
any electoral right or of rewarding any person for having exercised any such right; or,
(ii) accepts either for himself or for any other person any gratification as a reward for exercising,
any such right or for inducing or attempting to induce any other person to exercise any such right;,
LLaatteessttLLaawwss..ccoomm,
117,
commits the offence of bribery:,
Provided that a declaration of public policy or a promise of public action shall not be an offence,
under this section.,
"(2) A person who offers, or agrees to give, or offers or attempts to procure, a gratification shall be",
deemed to give a gratification.,
(3) A person who obtains or agrees to accept or attempts to obtain a gratification shall be deemed,
"to accept a gratification, and a person who accepts a gratification as a motive for doing what he",
"does not intend to do, or as a reward for doing what he has not done, shall be deemed to have",
accepted the gratification as a reward.],
———————————-,
"1. Section 171B ins. by Act 39 of 1920, sec. 2.",
Section 171C. Undue influence at elections,
[171C. Undue influence at elections.— (1) Whoever voluntarily interferes or attempts to interfere,
1,
with the free exercise of any electoral right commits the offence of undue influence at an election.,
"(2) Without prejudice to the generality of the provisions of sub-section (1), whoever—",
"(a) threatens any candidate or voter, or any person in whom a candidate or voter is interested, with",
"injury of any kind, or",
(b) induces or attempts to induce a candidate or voter to believe that he or any person in whom he,
"is interested will become or will be rendered an object of Divine displeasure or of spiritual censure,",
"shall be deemed to interfere with the free exercise of the electoral right of such candidate or voter,",
within the meaning of sub-section (1).,
"(3) A declaration of public policy or a promise of public action, or the mere exercise of a legal right",
"without intent to interfere with an electoral right, shall not be deemed to be interference within the",
meaning of this section.],
———————————-,
LLaatteessttLLaawwss..ccoomm,
118,
"1. Section 171C ins. by Act 39 of 1920, sec. 2.",
Section 171D. Personation at elections,
[171D. Personation at elections.— Whoever at an election applies for a voting paper or votes in,
1,
"the name of any other person, whether living or dead, or in a fictitious name, or who having voted",
"once at such election applies at the same election for a voting paper in his own name, and whoever",
"abets, procures or attempts to procure the voting by any person in any such way, commits the",
offence or personation at an election:,
[Provided that nothing in this section shall apply to a person who has been authorised to vote as,
2,
proxy for an elector under any law for the time being in force in so far as he votes as a proxy for,
such elector.]],
———————————-,
"1. Section 171D ins. by Act 39 of 1920, sec. 2.",
"2. Ins. by Act 24 of 2003, sec. 5 (w.e.f. 22-9-2003)",
Section 171E. Punishment for bribery,
[171E. Punishment for bribery.— Whoever commits the offence of bribery shall be punished with,
1,
"imprisonment of either description for a term which may extend to one year, or with fine, or with",
both:,
Provided that bribery by treating shall be punished with fine only.,
Explanation,
"“Treating” means that form of bribery where the gratification consists in food, drink, entertainment,",
or provision.],
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 1 year, or fine, or both or if treating only, fine only—Non-",
cognizable—Bailable—Triable by Magistrate of the first class—Non-compoundable.,
———————————-,
"1. Section 171E ins. by Act 39 of 1920, sec. 2.",
LLaatteessttLLaawwss..ccoomm,
119,
Section 171F. Punishment for undue,
influence or personation at an election,
[171F. Punishment for undue influence or personation at an election.— Whoever commits the,
1,
offence of undue influence or personation at an election shall be punished with imprisonment of,
"either description for a term which may extend to one year or with fine, or with both.]",
CLASSIFICATION OF OFFENCE,
Para I,
"Punishment—Imprisonment for 1 year, or fine, or both or if treating only, fine only—Non-cog-",
nizable—Bailable—Triable by Magistrate of the first class—Non-compoundable.,
Para II,
"Punishment—Imprisonment for 1 year, or fine, or both—Cognizable—Bailable—Triable by",
Magistrate of the first class—Non-compoundable.,
———————————-,
"1. Section 171F ins. by Act 39 of 1920, sec. 2.",
Section 171G. False statement in connection,
with an election,
[171G. False statement in connection with an election.— Whoever with intent to affect the result,
1,
of an election makes or publishes any statement purporting to be a statement of fact which is false,
"and which he either knows or believes to be false or does not believe to be true, in relation to the",
personal character or conduct of any candidate shall be punished with fine.],
CLASSIFICATION OF OFFENCE,
Punishment—Fine—Non-cognizable—Bailable—Triable by Magistrate of the first class—Non-,
compoundable.,
———————————-,
"1. Section 171G ins. by Act 39 of 1920, sec. 2.",
Section 171H. Illegal payments in connection,
with an election,
LLaatteessttLLaawwss..ccoomm,
120,
[171H. Illegal payments in connection with an election.— Whoever without the general or special,
1,
authority in writing of a candidate incurs or authorises expenses on account of the holding of any,
"public meeting, or upon any advertisement, circular or publication, or in any other way whatsoever",
"for the purpose of promoting or procuring the election of such candidate, shall be punished with",
fine which may extend to five hundred rupees:,
Provided that if any person having incurred any such expenses not exceeding the amount of ten,
rupees without authority obtains within ten days from the date on which such expenses were in-,
"curred the approval in writing of the candidate, he shall be deemed to have incurred such expenses",
with the authority of the candidate.],
CLASSIFICATION OF OFFENCE,
Punishment—Fine of 500 rupees—Non cognizable—Bailable—Triable by Magistrate of the first,
class—Non-compoundable.,
———————————-,
"1. Section 171H ins. by Act 39 of 1920, sec. 2.",
Section 171I. Failure to keep election,
accounts,
[171-I. Failure to keep election accounts.— Whoever being required by any law for the time being,
1,
in force or any rule having the force of law to keep accounts of expenses incurred at or in connection,
with an election fails to keep such accounts shall be punished with fine which may extend to five,
hundred rupees.],
CLASSIFICATION OF OFFENCE,
Punishment—Fine of 500 rupees—Non-cognizable—Bailable—Triable by Magistrate of the first,
class—Non-compoundable.,
———————————-,
"1. Section 171-I ins. by Act 39 of 1920, sec. 2.",
Section 172. Absconding to avoid service of,
summons or other proceeding,
LLaatteessttLLaawwss..ccoomm,
121,
"Whoever absconds in order to avoid being served with a summons, notice or order, proceeding",
"from any public servant legally competent, as such public servant, to issue such summons, notice",
"or order, shall be punished with simple imprisonment for a term which may extend to one month,",
"or with fine which may extend to five hundred rupees, or with both;",
"or, if the summons or notice or order is to attend in person or by agent, or to [produce a document",
1,
"or an electronic record in a Court of Justice], with simple imprisonment for a term which may",
"extend to six months, or with fine which may extend to one thousand rupees, or with both.",
CLASSIFICATION OF OFFENCE,
Para I,
"Punishment—Simple imprisonment for 1 month, or fine of 500 rupees, or both—Non-cognizable—",
Bailable—Triable by any Magistrate—Non-compoundable.,
Para II,
"Punishment—Simple imprisonment for 6 months, or fine of 1,000 rupees, or both—Non-",
cognizable—Bailable—Triable by any Magistrate—Non-compoundable.,
—————————,
"1. Subs. by Act 21 of 2000, sec. 91 and Sch. I, for “produce a document in a Court of Justice”",
(w.e.f. 17-10-2000).,
Section 173. Preventing service of summons,
"or other proceeding, or preventing",
publication thereof,
"Whoever in any manner intentionally prevents the serving on himself, or on any other person, of",
"any summons, notice or order proceeding from any public servant legally competent, as such public",
"servant, to issue such summons, notice or order,",
"or intentionally prevents the lawful affixing to any place of any such summons, notice or order,",
"or intentionally removes any such summons, notice or order from any place to which it is lawfully",
"affixed,",
LLaatteessttLLaawwss..ccoomm,
122,
"or intentionally prevents the lawful making of any proclamation, under the authority of any public",
"servant legally competent, as such public servant, to direct such proclamation to be made,",
"shall be punished with simple imprisonment for a term which may extend to one month, or with",
"fine which may extend to five hundred rupees, or with both;",
"or, if the summons, notice, order or proclamation is to attend in person or by agent, or [to produce",
1,
"a document or electronic record in a Court of Justice], with simple imprisonment for a term which",
"may extend to six months, or with fine which may extend to one thousand rupees, or with both.",
CLASSIFICATION OF OFFENCE,
Para I,
"Punishment—Simple imprisonment for 1 month, or fine of 500 rupees, or both—Non-cognizable—",
Bailable—Triable by any Magistrate—Non-compoundable.,
Para II,
"Punishment—Simple imprisonment for 6 months, or fine of 1,000 rupees, or both—Non-",
cognizable—Bailable—Triable by any Magistrate—Non-compoundable.,
—————————–,
"1. Subs. by Act 21 of 2000, sec. 91 and Sch. I, for “to produce a document in a Court of",
Justice” (w.e.f. 17-10-2000).,
Section 174. Non-attendance in obedience to,
an order form public servant,
"Whoever, being legally bound to attend in person or by an agent at a certain place and time in",
"obedience to a summons, notice, order or proclamation proceeding from any public servant legally",
"competent, as such public servant, to issue the same,",
"intentionally omits to attend at that place or time, or departs from the place where he is bound to",
"attend before the time at which it is lawful for him to depart,",
"shall be punished with simple imprisonment for a term which may extend to one month, or with",
"fine which may extend to five hundred rupees, or with both,",
LLaatteessttLLaawwss..ccoomm,
123,
"or, if the summons, notice, order or proclamation is to attend in person or by agent in a Court of",
"Justice, with simple imprisonment for a term which may extend to six months, or with fine which",
"may extend to one thousand rupees, or with both.",
Illustrations,
"(a) A, being legally bound to appear before the [High Court] at Calcutta, in obedience to a subpoena",
1,
"issuing from that Court, intentionally omits to appear. A has committed the offence defined in this",
section,
"(b) A, being legally bound to appear before a [District Judge], as a witness, in obedience to a",
2,
summons issued by that [District Judge] intentionally omits to appear. A has committed the offence,
2,
defined in this section.,
CLASSIFICATION OF OFFENCE,
Para I,
"Punishment—Simple imprisonment for 1 month, or fine of 500 rupees, or both—Non-cognizable—",
Bailable—Triable by any Magistrate—Non-compoundable.,
Para II,
"Punishment—Simple imprisonment for 6 months, or fine of 1,000 rupees, or both—Non-",
cognizable—Bailable—Triable by any Magistrate—Non-compoundable.,
——————————–,
"1. Subs. by the A.O. 1950, for “Supreme Court”.",
"2. Subs. by the A.O. 1950, for “Zila Judge”.",
Section 174A. Non-appearance in response to,
a proclamation under section 82 of Act 2 of,
1974,
[174A. Non-appearance in response to a proclamation under section 82 of Act 2 of 1974.—,
1,
Whoever fails to appear at the specified place and the specified time as required by a proclamation,
"published under sub-section (1) of section 82 of the Code of Criminal Procedure, 1973 shall be",
"punished with imprisonment for a term which may extend to three years or with fine or with both,",
and where a declaration has been made under sub-section (4) of that section pronouncing him as a,
LLaatteessttLLaawwss..ccoomm,
124,
"proclaimed offender, he shall be punished with imprisonment for a term which may extend to seven",
years and shall also be liable to fine.],
CLASSIFICATION OF OFFENCE,
Para I,
"Punishment—Imprisonment for 3 years or fine, or with both—Cognizable—Non-bailable—",
Triable by Magistrate of the first class—Non-compoundable.,
Para II,
Punishment—Imprisonment for 7 years and fine—Cognizable—Non-bailable—Triable by,
Magistrate of the first class—Non-compoundable.,
——————————–,
"1. Ins. by Act 25 of 2005, sec. 44 (w.e.f. 23-6-2006).",
Section 175. Omission to produce document,
or electronic record to public servant by,
person legally bound to produce it.,
175. Omission to produce [document or electronic record] to public servant by person legally,
1,
"bound to produce it.—Whoever, being legally bound to produce or deliver up any [document or",
1,
"electronic record] of any public servant, as such, intentionally omits so to produce or deliver up the",
"same, shall be punished with simple imprisonment for a term which may extend to one month, or",
"with fine which may extend to five hundred rupees, or with both,",
"or, if the [document or electronic record] is to be produced or delivered up to a Court of Justice,",
1,
"with simple imprisonment for a term which may extend to six months, or with fine which may",
"extend to one thousand rupees, or with both.",
Illustration,
"A, being legally bound to produce a document before a [District Court], intentionally omits to",
2,
produce the same. A has committed the offence defined in this section.,
CLASSIFICATION OF OFFENCE,
Para I,
LLaatteessttLLaawwss..ccoomm,
125,
"Punishment—Simple imprisonment for 1 month, or fine of 500 rupees, or both—Non-cognizable—",
"Bailable—Triable by the Court in which the offence is committed, subject to the provisions of",
"Chapter XXVI or, if not committed in a Court, any Magistrate—Non-compoundable.",
Para II,
"Punishment—Simple imprisonment for 6 months, or fine of 1,000 rupees, or both—Non-",
"cognizable—Bailable—Triable by the Court in which the offence is committed, subject to the",
"provisions of Chapter XXVI; or, if not committed in a Court, any Magistrate—Non-compoundable.",
——————————-,
"1. Subs. by Act 21 of 2000, sec. 91 and Sch. I, for “document” (w.e.f. 17-10-2000).",
"2 Subs. by the A.O. 1950, for “Zila Court”.",
Section 176. Omission to give notice or,
information to public servant by person,
legally bound to give it,
"Whoever, being legally bound to give any notice or to furnish information on any subject to any",
"public servant, as such, intentionally omits to give such notice or to furnish such information in the",
"manner and at the time required by law, shall be punished with simple imprisonment for a term",
"which may extend to one month, or with fine which may extend to five hundred rupees, or with",
both;,
"or, if the notice or information required to be given respects the commission of an offence, or is",
required for the purpose of preventing the commission of an,
"offence, or in order to the apprehension of an offender, with simple imprisonment for a term which",
"may extend to six months, or with fine which may extend to one thousand rupees, or with both;",
"[or, if the notice or information required to be given is required by an order passed under sub-",
1,
"section (1) of section 565 of the Code of Criminal Procedure, 1898 (5 of 1898) with imprisonment",
"of either description for a term which may extend to six months, or with fine which may extend to",
"one thousand rupees, or with both.]",
CLASSIFICATION OF OFFENCE,
LLaatteessttLLaawwss..ccoomm,
126,
Para I,
"Punishment—Simple imprisonment for 1 month, or fine of 500 rupees, or both—Non-cognizable—",
Bailable—Triable by any Magistrate—Non-compoundable.,
Para II,
"Punishment—Simple imprisonment for 6 months, or fine of 1,000 rupees, or both—Non-",
cognizable—Bailable—Triable by any Magistrate—Non-compoundable.,
Para III,
"Punishment—Imprisonment for 6 months, or fine of 1,000 rupees, or both—Non-cognizable—",
Bailable—Triable by any Magistrate—Non-compoundable.,
————————,
"1. Added by Act 22 of 1939, sec. 2.",
Section 177. Furnishing false information,
"Whoever, being legally bound to furnish information on any subject to any public servant, as such,",
"furnishes, as true, information on the subject which he knows or has reason to believe to be false,",
"shall be punished with simple imprisonment for a term which may extend to six months, or with",
"fine which may extend to one thousand rupees, or with both;",
"or, if the information which he is legally bound to give respects the commission of an offence, or",
"is required for the purpose of preventing the commission of an offence, or in order to the",
"apprehension of an offender, with imprisonment of either description for a term which may extend",
"to two years, or with fine, or with both.",
Illustrations,
"(a) A, a landholder, knowing of the commission of a murder within the limits of his estate, willfully",
misinforms the Magistrate of the district that the death has occurred by accident in consequence of,
the bite of a snake. A is guilty of the offence defined in this section,
"(b) A, a village watchman, knowing that a considerable body of strangers has passed through his",
"village in order to commit a dacoity in the house of Z, a wealthy merchant residing in a",
"neighbouring place, and being being bound under clause 5, section VII, [Regulation III, 1821], of",
1,
"the Bengal Code, to give early and punctual information of the above fact to the officer of the",
LLaatteessttLLaawwss..ccoomm,
127,
"nearest police-station, willfully misinforms the police-officer that a body of suspicious characters",
passed through the village with a view to commit dacoity in a certain distant place in a different,
direction. Here A is guilty of the offence defined in the later part of this section.,
Explanation,
2,
In section 176 and in this section the word “offence” includes any act committed at any place out,
"of [India], which, if committed in [India], would be punishable under any of the following sections,",
3 3,
"namely, 302, 304, 382, 392, 393, 394, 395, 396, 397, 398, 399, 402, 435, 436, 449, 450, 457, 458,",
459 and 460; and the word “offender” includes any person who is alleged to have been guilty of,
any such act.,
CLASSIFICATION OF OFFENCE,
Para I,
"Punishment—Imprisonment for 6 months, or fine of 1,000 rupees, or both—Non-cognizable—",
Bailable—Triable by any Magistrate—Non-compoundable.,
Para II,
"Punishment—Imprisonment for 2 years, or fine, or both—Non-cognizable—Bailable—Triable by",
any Magistrate—Non-compoundable.,
———————,
1. Rep. by Act 17 of 1862.,
2. Added by Act 3 of 1894.,
"3. The words “British India” have successively been subs. by the A.O. 1948, the A.O. 1950",
"and Act 3 of 1951, sec. 3 and Sch. to read as above.",
Section 178. Refusing oath or affirmation,
when duly required by public servant to make,
it,
"Whoever refuses to bind himself by an oath [or affirmation] to state the truth, when required so to",
1,
"bind himself by a public servant legally competent to require that he shall so bind himself, shall be",
"punished with simple imprisonment for a term which may extend to six months, or with fine which",
"may extend to one thousand rupees, or with both.",
CLASSIFICATION OF OFFENCE,
LLaatteessttLLaawwss..ccoomm,
128,
"Punishment—Simple imprisonment for 6 months, or fine of 1,000 rupees, or both—Non-",
"cognizable—Bailable—Triable by the court in which the offence is committed, subject to the",
"provisions of Chapter XXVI; or, if not committed in a court, any Magistrate—Non-compoundable.",
———————,
1. Rep. by Act 17 of 1862.,
Section 179. Refusing to answer public,
servant authorised to question,
"Whoever, being legally bound to state the truth on any subject to any public servant, refuses to",
answer any question demanded of him touching that subject by such public servant in the exercise,
"of the legal powers of such public servant, shall be punished with simple imprisonment for a term",
"which may extend to six months, or with fine which may extend to one thousand rupees, or with",
both.,
CLASSIFICATION OF OFFENCE,
"Punishment—Simple imprisonment for 6 months, or fine of 1,000 rupees, or both—Non-",
"cognizable—Bailable—Triable by the court in which the offence is committed, subject to the",
"provisions of Chapter XXVI; or, if not committed in a court, any Magistrate—Non-compoundable.",
Section 180. Refusing to sign statement,
"Whoever refuses to sign any statement made by him, when required to sign that statement by a",
"public servant legally competent to require that he shall sign that statement, shall be punished with",
"simple imprisonment for a term which may extend to three months, or with fine which may extend",
"to five hundred rupees, or with both.",
CLASSIFICATION OF OFFENCE,
"Punishment—Simple imprisonment for 3 months, or fine of 500 rupees, or both—Non-",
"cognizable—Bailable—Triable by the court in which the offence is committed, subject to the",
"provisions of Chapter XXVI; or, if not committed in a court, any Magistrate—Non-compoundable.",
Section 181. False statement on oath or,
affirmation to public servant or person,
LLaatteessttLLaawwss..ccoomm,
129,
authorised to administer an oath or,
affirmation,
"Whoever, being legally bound by an oath [or affirmation] to state the truth on any subject to any",
1,
"public servant or other person authorized by law to administer such oath [or affirmation], makes,",
2,
"to such public servant or other person as aforesaid, touching the subject, any statement which is",
"false, and which he either knows or believes to be false or does not believe to be true, shall be",
"punished with imprisonment of either description for a term which may extend to three years, and",
shall also be liable to fine.,
CLASSIFICATION OF OFFENCE,
Punishment—Imprisonment for 3 years and fine—Non-cognizable—Bailable—Triable by,
Magistrate of the first class—Non-compoundable.,
————————-,
"1. Ins. by Act 10 of 1873, sec. 15.",
"2. Ins. by Act 10 of 1873, sec. 15.",
"Section 182. False information, with intent to",
cause public servant to use his lawful power,
to the injury of another person,
"[182. False information, with intent to cause public servant to use his lawful power to the injury of",
1,
another person.— Whoever gives to any public servant any information which he knows or believes,
"to be false, intending thereby to cause, or knowing it to be likely that he will thereby cause, such",
public servant—,
(a) to do or omit anything which such public servant ought not to do or omit if the true state of facts,
"respecting which such information is given were known by him, or",
"(b) to use the lawful power of such public servant to the injury or annoyance of any person,",
shall be punished with imprisonment of either description for a term which may extend to six,
"months, or with fine which may extend to one thousand rupees, or with both.",
Illustrations,
LLaatteessttLLaawwss..ccoomm,
130,
"(a) A informs a Magistrate that Z, a police-officer, subordinate to such Magistrate, has been guilty",
"of neglect of duty or misconduct, knowing such information to be false, and knowing it to be likely",
that the information will cause the Magistrate to dismiss Z. A has committed the offence defined,
in this section.,
(b) A falsely informs a public servant that Z has contraband salt in a secret place knowing such,
"information to be false, and knowing that it is likely that the consequence of the information will",
"be a search of Z’s premises, attended with annoyance to Z. A has committed the offence defined in",
this section.,
(c) A falsely informs a policeman that he has been assaulted and robbed in the neighbourhood of a,
"particular village. He does not mention the name of any person as one of his assistants, but knows",
it to be likely that in consequence of this information the police will make enquiries and institute,
searches in the village to the annoyance of the villages or some of them. A has committed an offence,
under this section.],
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 6 months or fine of 1,000 rupees, or both—Non-cognizable—",
Bailable—Triable by any Magistrate—Non-compoundable.,
—————————,
"1. Subs. by Act 3 of 1895, sec. 1, for the original section.",
Section 183. Resistance to the taking of,
property by the lawful authority of a public,
servant,
Whoever offers any resistance to the taking of any property by the lawful authority of any public,
"servant, knowing or having reason to believe that he is such public servant, shall be punished with",
"imprisonment of either description for a term which may extend to six months, or with fine which",
"may extend to one thousand rupees, or with both.",
CLASSIFICATION OF OFFENCE,
LLaatteessttLLaawwss..ccoomm,
131,
"Punishment—Imprisonment for 6 months or fine of 1,000 rupees, or both—Non-cognizable—",
Bailable—Triable by any Magistrate—Non-compoundable.,
Section 184. Obstructing sale of property,
offered for sale by authority of public servant,
Whoever intentionally obstructs any sale of property offered for sale by the lawful authority of any,
"public servant as such, shall be punished with imprisonment of either description for a term which",
"may extend to one month, or with fine which may extend to five hundred rupees, or with both.",
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 1 month or fine of 500 rupees, or both—Non-cognizable—",
Bailable—Triable by any Magistrate—Non-compoundable.,
Section 185. Illegal purchase or bid for,
property offered for sale by authority of,
public servant,
"Whoever, at any sale of property held by the lawful authority of a public servant, as such, purchases",
"or bids for any property on account of any person, whether himself or any other, whom he knows",
"to be under a legal incapacity to purchase that property at that sale, or bids for such property not",
"intending to perform the obligations under which he lays himself by such bidding, shall be punished",
"with imprisonment of either description for a term which may extend to one month, or with fine",
"which may extend to two hundred rupees, or with both.",
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 1 month, or fine of 200 rupees, or both—Non-cognizable—",
Bailable—Triable by any Magistrate—Non-compoundable.,
Section 186. Obstructing public servant in,
discharge of public functions,
"Whoever voluntarily obstructs any public servant in the discharge of his public functions, shall be",
"punished with imprisonment of either description for a term which may extend to three months, or",
"with fine which may extend to five hundred rupees, or with both.",
LLaatteessttLLaawwss..ccoomm,
132,
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 3 months, or fine of 500 rupees, or both—Non-cognizable—",
Bailable—Triable by any Magistrate—Non-compoundable.,
State Amendment,
Andhra Pradesh,
Offence under section 186 is cognizable.,
"[Vide A.P.G.O. Ms. No. 732, dated 5th December, 1991]",
Section 187. Omission to assist public servant,
when bound by law to give assistance,
"Whoever, being bound by law to render or furnish assistance to any public servant in the execution",
"of his public duty, intentionally omits to give such assistance, shall be punished with simple",
"imprisonment for a term which may extend to one month, or with fine which may extend to two",
"hundred rupees, or with both;",
and if such assistance be demanded to him by a public servant legally competent to make such,
"demand for the purposes of executing any process lawfully issued by a Court of Justice, or of",
"preventing the commission of an offence, or of suppressing a riot, or affray, or of apprehending a",
"person charged with or guilty of an offence, or of having escaped from lawful custody, shall be",
"punished with simple imprisonment for a term which may extend to six months, or with fine which",
"may extend to five hundred rupees, or with both.",
CLASSIFICATION OF OFFENCE,
Para I,
"Punishment—Simple imprisonment for 1 month, or the fine of 200 rupees, or both—Non-",
cognizable—Bailable—Triable by any Magistrate—Non-compoundable.,
Para II,
"Punishment—Simple imprisonment for 6 months, or fine of 500 rupees, or both—Non-",
cognizable—Bailable—Triable by any Magistrate—Non-compoundable.,
LLaatteessttLLaawwss..ccoomm,
133,
Section 188. Disobedience to order duly,
promulgated by public servant,
"Whoever, knowing that, by an order promulgated by a public servant lawfully empowered to",
"promulgate such order, he is directed to abstain from a certain act, or to take certain order with",
"certain property in his possession or under his management, disobeys such direction,",
"shall, if such disobedience causes to tender to cause obstruction, annoyance or injury, or risk of",
"obstruction, annoyance of injury, to any persons lawfully employed, be punished with simple",
imprisonment for a term which may extend to one month or with fine which may extend to two,
"hundred rupees, or with both;",
"and if such disobedience causes or trends to cause danger to human life, health or safety, or causes",
"or tends to cause a riot or affray, shall be punished with imprisonment of either description for a",
"term which may extend to six months, or with fine which may extend to one thousand rupees, or",
with both.,
Explanation,
"It is not necessary that the offender should intend to produce harm, or contemplate his disobedience",
"as likely to produce harm. It is sufficient that he knows of the order which he disobeys, and that his",
"disobedience produces, or is likely to produce, harm.",
Illustration,
"An order is promulgated by a public servant lawfully empowered to promulgate such order,",
directing that a religious procession shall not pass down a certain street. A knowingly disobeys the,
"order, and thereby causes danger of riot. A has committed the offence defined in this section.",
CLASSIFICATION OF OFFENCE,
Para I,
"Punishment—Simple imprisonment for 1 month, or fine of 200 rupees, or both—Cognizable—",
Bailable—Triable by any Magistrate—Non-compoundable.,
Para II,
LLaatteessttLLaawwss..ccoomm,
134,
"Punishment—Imprisonment for 6 months, or fine of 1,000 rupees, or both—Cognizable—",
Bailable—Triable by any Magistrate—Non-compoundable.,
Section 189. Threat of injury to public,
servant,
"Whoever holds out any threat of injury to any public servant, or to any person in whom he believes",
"that public servant to be interested, for the purpose of inducing that public servant to do any act, or",
"to forbear or delay to do any act, connected with the exercise of the public functions of such public",
"servant, shall be punished with imprisonment of either description for a term which may extend to",
"two years, or with fine, or with both.",
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 2 years, or fine, or both—Non-cognizable—Bailable—Triable by",
any Magistrate—Non-compoundable.,
State Amendments,
Andhra Pradesh,
In Andhra Pradesh offence under section 189 is cognizable.,
"[Vide A.P.G.O. Ms. No. 732, dated 5th December, 1991]",
Section 190. Threat of injury to induce person,
to refrain from applying for protection to,
public servant,
Whoever holds out any threat of injury to any person for the purpose of inducing that person to,
refrain or desist from making a legal application for protection against any injury to any public,
"servant legally empowered as such to give such protection, or to cause such protection to be given,",
"shall be punished with imprisonment of either description for a term which may extend to one year,",
"or with fine, or with both.",
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 1 year, or fine, or both—Non-cognizable—Bailable—Triable by",
any Magistrate—Non-compoundable.,
LLaatteessttLLaawwss..ccoomm,
135,
State Amendment,
Andhra Pradesh,
Offence under section 190 is cognizable.,
"[Vide A.P.G.O. Ms. No. 732, dated 5th December, 1991].",
Section 191. Giving false evidence,
"Whoever, being legally bound by an oath or by an express provision of law to state the truth, or",
"being bound by law to make a declaration upon any subject, makes any statement which is false,",
"and which he either knows or believes to be false or does not believe to be true, is said to give false",
evidence.,
Explanation 1,
"A statement is within the meaning of this section, whether it is made verbally or otherwise.",
Explanation 2,
"A false statement as to the belief of the person attesting is within the meaning of this section, and",
a person may be guilty of giving false evidence by stating that he believes a thing which he does,
"not believe, as well as by stating that he knows a thing which he does not know.",
Illustrations,
"(a) A, in support of a just claim which B has against Z for one thousand rupees, falsely swears on",
a trial that he heard Z admit the justice of B’s claim. A has given false evidence.,
"(b) A, being bound by an oath to state the truth, states that he believes a certain signature to be the",
"handwriting of Z, when he does not believe it to be the handwriting of Z. Here A states that which",
"he knows to be false, and therefore gives false evidence.",
"(c) A, knowing the general character of Z’s handwriting, states that he believes a certain signature",
to be the handwriting of Z; A in good faith believing it to be so. Here A’s statement is merely as to,
"his belief, and is true as to his belief, and therefore, although the signature may not be the",
"handwriting of Z, A has not given false evidence.",
LLaatteessttLLaawwss..ccoomm,
136,
"(d) A, being bound by an oath to state the truth, states that he knows that Z was at a particular place",
"on a particular day, not knowing anything upon the subject. A gives false evidence whether Z was",
at that place on the day named or not.,
"(e) A, an interpreter or translator, gives or certifies as a true interpretation or translation of a",
"statement or document which he is bound by oath to interpret or translate truly, that which is not",
and which he does not believed to be a true interpretation or translation. A has given in false,
evidence.,
Section 192. Fabricating false evidence,
Whoever causes any circumstance to exist or [makes any false entry in any book or record or,
1,
"Electronic Record, or makes any document or Electronic Rercord containing a false statement],",
"intending that such circumstance, false entry or false statement may appear in evidence in a judicial",
"proceeding, or in a proceeding taken by law before a public servant as such, or before an arbitrator,",
"and that such circumstance, false entry or false statement, so appearing in evidence, may cause any",
"person who in such proceeding is to form an opinion upon the evidence, to entertain an erroneous",
"opinion touching any point material to the result of such proceeding, is said “to fabricate false",
evidence”.,
Illustrations,
"(a) A puts jewels into a box belonging to Z, with the intention that they may be found in that box,",
and that this circumstance may cause Z to be convicted of theft. A has fabricated false evidence.,
(b) A makes a false entry in his shop-book for the purpose of using it as corroborative evidence in,
a Court of Justice. A has fabricated false evidence.,
"(c) A, with the intention of causing Z to be convicted of a criminal conspiracy, writes a letter in",
"imitation of Z’s handwriting, purporting to be addressed to an accomplice in such criminal",
"conspiracy, and puts the letter in a place which he knows that the officers of the Police are likely",
to search. A has fabricated false evidence.,
————————–,
"1. Subs. by Act 21 of 2000, sec. 91 and Sch. I, for certain words (w.e.f. 17-10-2000).",
Section 193. Punishment for false evidence,
LLaatteessttLLaawwss..ccoomm,
137,
"Whoever intentionally gives false evidence in any stage of a judicial proceeding, or fabricates false",
"evidence for the purpose of being used in any stage of a judicial proceeding, shall be punished with",
"imprisonment of either description for a term which may extend to seven years, and shall also be",
"liable to fine,",
"and whoever intentionally gives or fabricates false evidence in any other case, shall be punished",
"with imprisonment of either description for a term which may extend to three years, and shall also",
be liable to fine.,
Explanation 1,
A trial before a Court-martial; [* * *] is a judicial proceeding.,
1,
Explanation 2,
"An investigation directed by law preliminary to a proceeding before a Court of Justice, is a stage",
"of a judicial proceeding, though that investigation may not take place before a Court of Justice.",
Illustration,
"A, in an enquiry before a Magistrate for the purpose of ascertaining whether Z ought to be",
"committed for trial, makes on oath a statement which he knows to be false. A this enquiry is a stage",
"of a judicial proceeding, A has given false evidence.",
Explanation 3,
"An investigation directed by a Court of Justice, according to law, and conducted under the authority",
"of a Court of Justice, is a stage of a judicial proceeding, though that investigation may not take",
place before a Court of Justice.,
Illustration,
"A, in any enquiry before an officer deputed by a Court of Justice to ascertain on the spot the",
"boundaries of land, makes on oath a statement which he knows to be false. As this enquiry is a",
stage of a judicial proceeding. A has given false evidence.,
CLASSIFICATION OF OFFENCE,
Para I,
LLaatteessttLLaawwss..ccoomm,
138,
Punishment—Imprisonment for 7 years and fine—Non-cognizable—Bailable—Triable by,
Magistrate of the first class—Non-compoundable.,
Para II,
Punishment—Imprisonment for 3 years and fine—Non-cognizable—Bailable—Triable by any,
Magistrate.,
————————-,
"1. The words “or before a Military Court of Request” omitted by Act 13 of 1889, sec. 2 and",
Sch.,
Section 194. Giving or fabricating false,
evidence with intent to procure conviction of,
capital offence,
"Whoever gives or fabricates false evidence, intending thereby to cause, or knowing it to be likely",
"that he will thereby cause, any person to be convicted of an offence which is capital [by the law",
1,
"for the time being in force in [India]] shall be punished with [imprisonment for life], or with",
2 3,
"rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine;",
if innocent person be thereby convicted and executed.— and if an innocent person be convicted,
"and executed in consequence of such false evidence, the person who gives such false evidence shall",
be punished either with death or the punishment hereinbefore described.,
CLASSIFICATION OF OFFENCE,
Para I,
"Punishment—Imprisonment for life, or rigorous imprisonment for 10 years and fine—Non-",
cognizable—Non-bailable—Triable by Court of Session—Non-compoundable.,
Para II,
Punishment—Death or as above—Non-cognizable—Non-bailable—Triable by Court of Session—,
Non-compoundable.,
—————————-,
"1. Subs. by the A.O. 1948, for “by the law of British India or England”.",
LLaatteessttLLaawwss..ccoomm,
139,
"2. Subs. by Act 3 of 1951, sec. 3 and Sch., for “the States”.",
"3. Subs. by Act 26 of 1955, sec. 117 and Sch., for “transportation for life” (w.e.f. 1-1-1956).",
Section 195. Giving or fabricating false,
evidence with intent to procure conviction of,
offence punishable with imprisonment for,
life or imprisonment,
"Whoever gives or fabricates false evidence intending thereby to cause, or knowing it to be likely",
"that he will thereby cause, any person to be convicted of an offence which [by the law for the time",
1,
"being in force in[India] is not capital, but punishable with [imprisonment for life], or imprisonment",
2 3,
"for a term of seven years or upwards, shall be punished as a person convicted of that offence would",
be liable to be punished.,
Illustration,
A gives false evidence before a Court of Justice intending thereby to cause Z to be convicted of a,
"dacoity. The punishment of dacoity is [imprisonment for life], or rigorous imprisonment for a term",
3,
"which may extend to ten years, with or without fine. A, therefore, is liable to [imprisonment for",
3,
"life] or imprisonment, with or without fine.",
CLASSIFICATION OF OFFENCE,
Punishment—The same as for the offence—Non-cognizable—Non-bailable—Triable by Court of,
Session—Non-compoundable.,
————————,
"1. Subs. by the A.O. 1948, for “by the law of British India or England”.",
"2. Subs. by Act 3 of 1951, sec. 3 and Sch., for “the States”.",
"3. Subs. by Act 26 of 1955, sec. 117 and Sch., for “transportation for life” (w.e.f. 1-1-1956).",
Section 195A. Threatening any person to give,
false evidence,
[195A. [Threatening any person to give false evidence].— Whoever threatens another with any,
1 2,
"injury to his person, reputation or property or to the person or reputation of any one in whom that",
"person is interested, with intent to cause that person to give false evidence shall be punished with",
LLaatteessttLLaawwss..ccoomm,
140,
"imprisonment of either description for a term which may extend to seven years, or with fine, or",
with both;,
"and if innocent person is convicted and sentenced in consequence of such false evidence, with death",
"or imprisonment for more than seven years, the person who threatens shall be punished with the",
same punishment and sentence in the same manner and to the same extent such innocent person is,
punished and sentenced.],
CLASSIFICATION OF OFFENCE,
Para I,
Punishment—Imprisonment for 7 years or fine or both—Cognizable—Non-bailable—Triable by,
Court by which offence of giving false evidence is triable—Non-compoundable.,
Para II,
Punishment—Same as for the offence for which the false evidence was given—Cognizable—Non-,
bailable—Triable by Court by which offence of giving false evidence is triable—Non-,
compoundable.,
—————————,
"1. Ins. by Act 2 of 2006, sec. 2 (w.e.f. 16-4-2006).",
"2. Corrected vide Corrigendum, dated 3rd March, 2006.",
Section 196. Using evidence known to be,
false,
Whoever corruptly uses or attempts to use as true or genuine evidence any evidence which he,
"knows to be false or fabricated, shall be punished in the same manner as if he gave or fabricated",
false evidence.,
CLASSIFICATION OF OFFENCE,
Punishment—The same as for the giving or fabricating false evidence—Non-cognizable—,
According as offence of giving such evidence is bailable or non-bailable—Triable by court by,
which offence of giving or fabricating false evidence is triable—Non-compoundable.,
LLaatteessttLLaawwss..ccoomm,
141,
Section 197. Issuing or signing false,
certificate,
"Whoever issues or signs any certificate required by law to be given or signed, or relating to any",
"fact of which such certificate is by law admissible in evidence, knowing or believing that such",
"certificate is false in any material point, shall be punished in the same manner as if he gave false",
evidence.,
CLASSIFICATION OF OFFENCE,
Punishment—The same as for the giving or fabricating false evidence—Non-cognizable—,
Bailable.—Triable by court by which offence of giving false evidence is triable—Non-,
compoundable.,
Section 198. Using as true a certificate known,
to be false,
"Whoever corruptly uses or attempts to use any such certificate as a true certificate, knowing the",
"same to be false in any material point, shall be punished in the same manner as if he gave false",
evidence.,
CLASSIFICATION OF OFFENCE,
Punishment—The same as for the giving or fabricating false evidence—Non-cognizable—,
Bailable—Triable by court by which offence of giving false evidence is triable—Non-,
compoundable.,
Section 199. False statement made in,
declaration which is by law receivable as,
evidence,
"Whoever, in any declaration made or subscribed by him, which declaration any Court of Justice,",
"or any public servant or other person, is bound or authorized by law to receive as evidence of any",
"fact, makes any statement which is false, and which he either knows or believes to be false or does",
"not believe to be true, touching any point material to the object for which the declaration is made",
"or used, shall be punished in the same manner as if he gave false evidence.",
LLaatteessttLLaawwss..ccoomm,
142,
CLASSIFICATION OF OFFENCE,
Punishment—The same as for the giving or fabricating false evidence—Non-cognizable-,
Bailable—Triable by court by which offence of giving false evidence is triable—Non-,
compoundable.,
COMMENTS,
False statement in declaration,
No specific averment in the complaint that certain averments in the affidavit before Rent Control,
"Officer are false complaint cannot be held as maintainable; Chandrapal Singh v. Maharaj Singh,",
AIR 1982 SC 1236.,
Section 200. Using as true such declaration,
knowing it to be false,
"Whoever corruptly uses or attempts to use as true any such declaration, knowing the same to be",
"false in any material point, shall be punished in the same manner as if he gave false evidence.",
Explanation,
"A declaration which is inadmissible merely upon the ground of some informality, is a declaration",
within the meaning of sections 199 to 200.,
CLASSIFICATION OF OFFENCE,
Punishment—The same as for giving or fabricating false evidence—Non-cognizable—Bailable—,
Triable by court by which offence of giving false evidence is triable—Non-compoundable.,
Section 201. Causing disappearance of,
"evidence of offence, or giving false",
information to screen offender,
"Whoever, knowing or having reason to believe that an offence has been committed, causes any",
"evidence of the commission of that offence to disappear, with the intention of screening the offend-",
"er from legal punishment, or with that intention gives any information respecting the offence which",
he knows or believes to be false;,
LLaatteessttLLaawwss..ccoomm,
143,
"if a capital offence.—shall, if the offence which he knows or believes to have been committed is",
"punishable with death, be punished with imprisonment of either description for a term which may",
"extend to seven years, and shall also be liable to fine;",
if punishable with imprisonment for life.—and if the offence is punishable with 1[imprisonment,
"for life], or with imprisonment which may extend to ten years, shall be punished with imprisonment",
"of either description for a term which may extend to three years, and shall also be liable to fine;",
if punishable with less than ten years’ imprisonment.—and if the offence is punishable with,
"imprisonment for any term not extending to ten years, shall be punished with imprisonment of the",
"description provided for the offence, for a term which may extend to one-fourth part of the longest",
"term of the imprisonment provided for the offence, or with fine, or with both.",
Illustration,
"A, knowing that B has murdered Z, assists B to hide the body with the intention of screening B",
"from punishment. A is liable to imprisonment of either description for seven years, and also to fine.",
CLASSIFICATION OF OFFENCE,
Para I,
Punishment—Imprisonment for 7 years and fine—According as the offence in relation to which,
disappearance of evidence is caused is cognizable or non-cognizable—Bailable—Triable by Court,
of Session—Non-compoundable.,
Para II,
Punishment—Imprisonment for 3 years and fine—Non-cognizable—Bailable—Triable by,
Magistrate of the first class—Non-compoundable.,
Para III,
"Punishment—Imprisonment for a quarter of the longest term provided for the offence, or fine or",
both—Non-cognizable—Bailable—Triable by court by which the offence is triable—Non-,
compoundable.,
————————–,
"1. Subs. by Act 26 of 1955, sec. 117 and Sch., for “transportation for life” (w.e.f. 1-1-1956).",
LLaatteessttLLaawwss..ccoomm,
144,
Section 202. Intentional omission to give,
information of offence by person bound to,
inform,
"Whoever, knowing or having reason to believe that an offence has been committed, intentionally",
"omits to give any information respecting that offence which he is legally bound to give, shall be",
"punished with imprisonment of either description for a term which may extend to six months, or",
"with fine, or with both.",
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 6 months, or fine, or both—Non-cognizable—Bailable—Triable",
by any Magistrate—Non-compoundable.,
COMMENTS,
Ingredients,
Assuming that the prosecution has not positively proved that the death was homicidal yet from the,
medical evidence it is clear that it was not a natural death and consequently the death should at,
least be noted as one of suicide. Even in the cause of suicide an offence of abetment punishable,
"under section 306 is inherent. Therefore, even in the case of suicide there is an obligation on the",
"person who knows or has reason to believe that such a suicidal death has occurred, to give",
"information; Bhagwan Swarup v. State of Rajasthan, (1991) Cr LJ 3123 (3133) (SC).",
Section 203. Giving false information,
respecting an offence committed,
"Whoever knowing or having reason to believe that an offence has been committed, gives any",
"information respecting that offence which he knows or believes to be false, shall be punished with",
"imprisonment of either description for a term which may extend to two year, or with fine, or with",
both.,
"[Explanation.—In sections 201 and 202 and in this section the word “offence”, includes any act",
1,
"committed at any place out of 2[India], which, if committed in [India], would be punishable under",
2,
"any of the following sections, namely, 302, 304, 382, 392 393, 394, 395, 396, 397, 398, 399, 402,",
"435, 436, 449, 450, 457, 458, 459 and 460.]",
LLaatteessttLLaawwss..ccoomm,
145,
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 2 years, or fine, or both—Non-cognizable—Bailable—Triable by",
any Magistrate—Non-compoundable.,
————————-,
"1. Added by Act 3 of 1894, sec. 6.",
"2. The words “British India” have successively been subs. by the A.O. 1948, the A.O. 1950",
"and Act 3 of 1951, sec. 3 and Sch., to read as above.",
Section 204. Destruction of document or,
electronic record to prevent its production as,
sevidence,
Destruction of [document or electronic record] to prevent its production as sevidence.— Whoever,
1,
secretes or destroys any [document or Electronic Record] which he may be lawfully compelled to,
1,
"produce as evidence in a Court of Justice, or in any proceeding lawfully held before a public",
"servant, as such, or obliterates or renders illegible the whole or any part of such [document or",
1,
Electronic Record] with the intention of preventing the same from being produced or used as,
"evidence before such Court or public servant as aforesaid, or after he shall have been lawfully",
"summoned or required to produce the same for that purpose, shall be punishable with imprisonment",
"of either description for a term which may extend to two years, or with fine, or with both.",
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 2 years, or fine, or both—Non-cognizable—Bailable—Triable by",
Magistrate of the first class—Non-compoundable.,
————————-,
"1. Subs. by Act 21 of 2000, sec. 91 and Sch. I, for “document” (w.e.f. 17-10-2000).",
Section 205. False personation for purpose of,
act or proceeding in suit or prosecution,
"Whoever falsely personates another, and in such assumed character makes any admission or",
"statement, or confesses judgment, or causes any process to be issued or becomes bail or security,",
LLaatteessttLLaawwss..ccoomm,
146,
"or does any other act in any suit or criminal prosecution, shall be punished with imprisonment of",
"either description for a term which may extend to three years or with fine, or with both.",
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 3 years, or fine, or both—Non-cognizable—Bailable—Triable by",
Magistrate of the first class—Non-compoundable.,
Section 206. Fraudulent removal or,
concealment of property to prevent its seizure,
as forfeited or in execution,
"Whoever fraudulently removes, conceals, transfers or delivers to any person any property or any",
"interest therein, intending thereby to prevent that property or interest therein from being taken as a",
"forfeiture or in satisfaction of a fine, under a sentence which has been pronounced, or which he",
"knows to be likely to be pronounced, by a Court of Justice or other competent authority, or from",
"being taken in execution of a decree or order which has been made, or which he knows to be likely",
"to be made by a Court of Justice in a civil suit, shall be punished with imprisonment of either",
"description for a term which may extend to two years, or with fine, or with both.",
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 2 years, or fine, or both—Non-cognizable—Bailable—Triable by",
any Magistrate—Non-compoundable.,
Section 207. Fraudulent claim to property to,
prevent its seizure as forfeited or in execution,
"Whoever fraudulently accepts, receives or claims any property or any interest therein, knowing that",
"he has no right or rightful claim to such property or interest, or practices any deception touching",
"any right to any property or any interest therein, intending thereby to prevent that property or",
"interest therein from being taken as a forfeiture or a satisfaction of a fine, under a sentence which",
"has been pronounced, or which he knows to be likely to be pronounced by a Court of Justice or",
"other competent authority, or from being taken in execution of a decree or order which has been",
"made or which knows to be likely to be made by a Court of Justice in a civil suit, shall be punished",
LLaatteessttLLaawwss..ccoomm,
147,
"with imprisonment of either description for a term which may extend to two years, or with fine, or",
with both.,
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 2 years, or fine, or both—Non-cognizable—Bailable—Triable by",
any Magistrate—Non-compoundable.,
Section 208. Fraudulently suffering decree,
for sum not due,
Whoever fraudulently causes or suffer a decree or order to be passed against him at the suit of any,
person for a sum not due or for a larger sum than is due to such person or for any property or interest,
"in property to which such person is not entitled, or fraudulently causes or suffers a decree order to",
"be executed against him after it has been satisfied, or for anything in respect of which it has been",
"satisfied, shall be punished with imprisonment of either description for a term which may extend",
"to two years, or with fine, or with both.",
Illustration,
"A institutes a suit against Z. Z knowing that A is likely to obtain a decree against him, fraudulently",
"suffers a judgment to pass against him for a larger amount at the suit of B, who has no just claim",
"against him, in order that B, either on his own account or for the benefit of Z, may share in the",
proceeds of any sale of Z’s property which may be made under A’s decree. Z has committed an,
office under this section.,
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 2 years, or fine, or both—Non-cognizable—Bailable—Triable by",
Magistrate of the first class—Non-compoundable.,
Section 209. Dishonestly making false claim,
in Court,
"Whoever fraudulently or dishonestly, or with intent to injure or any person, makes in a Court of",
"Justice any claim which he knows to be false, shall be punished with imprisonment of either",
"description for a term which may extend to two years, and shall also be liable to fine.",
LLaatteessttLLaawwss..ccoomm,
148,
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 2 years, or fine, or both—Non-cognizable—Bailable—Triable by",
Magistrate of the first class—Non-compoundable.,
Section 210. Fraudulently obtaining decree,
for sum not due,
Whoever fraudulently obtains a decree or order against any person for a sum not due or for a larger,
"sum than is due, or for any property or interest in property to which he is not entitled, or fraudulently",
causes a decree or order to be executed against any person after it has been satisfied or for anything,
"in respect of which it has been satisfied, or fraudulently suffers or permits any such act to be done",
"in his name, shall be punished with imprisonment of either description for a term which may extend",
"to two years, or with fine, or with both.",
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 2 years, or fine, or both—Non-cognizable—Bailable—Triable by",
Magistrate of the first class—Non-compoundable.,
Section 211. False charge of offence made,
with intent to injure,
"Whoever, with intent to cause injury to any person, institutes or causes to be instituted any criminal",
"proceeding against that person, or falsely charges any person with having committed an offence,",
"knowing that there is no just or lawful ground for such proceeding or charge against that person,",
shall be punished with imprisonment of either description for a term which may extend to two,
"years, or with fine, or with both;",
and if such criminal proceeding be instituted on a false charge of an offence punishable with,
"death[imprisonment for life], or imprisonment for seven years or upwards, shall be punishable with",
1,
"imprisonment of either description for a term which may extend to seven years, and shall also be",
liable to fine.,
CLASSIFICATION OF OFFENCE,
Para I,
LLaatteessttLLaawwss..ccoomm,
149,
"Punishment—Imprisonment for 2 years, or fine, or both—Non-cognizable—Bailable—Triable by",
Magistrate of the first class—Non-compoundable.,
Para II,
Punishment—Imprisonment for 7 years and fine—Non-cognizable—Bailable—Triable by,
Magistrate of the first class—Non-compoundable.,
Para III,
"Punishment—Imprisonment for 7 years, and fine—No",
n-cognizable—Bailable—Triable by Court of Session—Non-compoundable.,
———————–,
"1. Subs. by Act 26 of 1955, sec. 117 and Sch., for “transportation for life” (w.e.f. 1-1-1956).",
Section 212. Harbouring offender,
"Whenever an offence has been committed, whoever harbours or conceals a person whom he knows",
"or has reason to believe to be the offender, with the intention of screening him from legal",
punishment;,
"if a capital offence.—shall, if the offence is punishable with death, be punished with imprisonment",
"of either description for a term which may extend to five years, and shall also be liable to fine;",
"if punishable with imprisonment for life, or with imprisonment.—and if the offence is",
"punishable with[imprisonment for life], or with imprisonment which may extend to ten years, shall",
1,
"be punished with imprisonment of either description for a term which may extend to three years,",
and shall also be liable to fine;,
"and if the offence is punishable with imprisonment which may extend to one year, and not to ten",
"years, shall be punished with imprisonment of the description provided for the offence for a term",
"which may extend to one-fourth part of the longest term of imprisonment provided for the offence,",
"or with fine, or with both.",
"[“Offence” in this section includes any act committed at any place out of [India], which, if",
2 3,
"committed in[India], would be punishable under any of the following sections, namely, 302, 304,",
3,
"382, 392, 393, 394, 395, 396, 397, 398, 399, 402, 435, 436, 449, 450, 457, 458, 459 and 460; and",
LLaatteessttLLaawwss..ccoomm,
150,
"every such act shall, for the purposes of this section, be deemed to be punishable as if the accused",
person had been guilty of it in[India].],
3,
Exception.—This provision shall not extend to any case in which the harbour or concealment is by,
the husband or wife of the offender.,
Illustration,
"A, knowing that B has committed dacoity, knowingly conceals B in order to screen him from legal",
"punishment. Here, as B is liable to [imprisonment for life], A is liable to imprisonment of either",
1,
"description for a term not exceeding three years, and is also liable to fine.",
CLASSIFICATION OF OFFENCE,
Para I,
Punishment—Imprisonment for 5 years and fine—Cognizable—Bailable—Triable by Magistrate,
of the first class—Non-compoundable.,
Para II,
Punishment—Imprisonment for 3 years and fine—Cognizable—Bailable—Triable by Magistrate,
of the first class—Non-compoundable.,
Para III,
"Punishment—Imprisonment for a quarter of the longest term, and of the description, provided for",
"the offence, or fine, or both—Cognizance—Bailable—Triable by Magistrate of the first class—",
Non-compoundable.,
Comments,
"To attract the provision of section 212 it is necessary to establish commission of offence,",
harbouring or concealing the person known or believed to be the offender and such concealment,
must be with the intention of screening him from legal punishment; Sanjeev Kumar v. State of,
"Himachal Pradesh, AIR 1999 SC 782: 1999 (1) JT 116.",
————————-,
"1. Subs. by Act 26 of 1955, sec. 117 and Sch., for “transportation for life” (w.e.f. 1-1-1956).",
"2. Ins. by Act 3 of 1894, sec. 7.",
LLaatteessttLLaawwss..ccoomm,
151,
"3. The words “British India” have successively been subs. by the A.O. 1948, the A.O. 1950",
"and Act 3 of 1951, sec. 3 and Sch., to read as above.",
"Section 213. Taking gift, etc., to screen an",
offender from punishment,
"Whoever accepts or attempts to obtain, or agrees to accept, any gratification for himself or any",
"other person, or any restitution of property to himself or any other person, in consideration of his",
"concealing an offence or of his screening any person from legal punishment for any offence, or of",
"his not proceeding against any person for the purpose of bringing him to legal punishment,",
"if a capital offence.—shall, if the offence is punishable with death, be punished with imprisonment",
"of either description for a term which may extend to seven years, and shall also be liable to fine;",
"if punishable with imprisonment for life, or with imprisonment.—and if the offence is",
"punishable with[imprisonment for life], or with imprisonment which may extend to ten years, shall",
1,
"be punished with imprisonment of either description for a term which may extend to three years,",
and shall also be liable to fine;,
"and if the offence is punishable with imprisonment not extending to ten years, shall be punished",
with imprisonment of the description provided for the offence for a term which may extend to one-,
"fourth part of the longest term of imprisonment provided for the offence, or with fine, or with both.",
CLASSIFICATION OF OFFENCE,
Para I,
Punishment—Imprisonment for 7 years and fine—Cognizable—Bailable—Triable by Magistrate,
of the first class—Non-compoundable.,
Para II,
Punishment—Imprisonment for 3 years and fine—Cognizable—Bailable—Triable by Magistrate,
of the first class—Non-compoundable.,
Para III,
"Punishment—Imprisonment for a quarter of the longest term, provided for the offence, or fine, or",
both—Cognizable—Bailable—Triable by Magistrate of the first class—Non-compoundable.,
————————–,
LLaatteessttLLaawwss..ccoomm,
152,
"1. Subs. by Act 26 of 1955, sec. 117 and Sch., for “transportation for life” (w.e.f. 1-1-1956).",
Section 214. Offering gift or restoration of,
property in consideration of screening,
offender,
"Whoever gives or causes, or offers or agrees to give or cause, any gratification to any person,",
"or [restores or causes the restoration of] any property to any person, in consideration of that",
1,
"person’s concealing an offence, or of his screening any person from legal punishment for any",
"offence, or of his not proceeding against any person for the purpose of bringing him to legal",
punishment;,
"if a capital offence.—shall, if the offence is punishable with death, be punished with imprisonment",
"of either description for a term which may extend to seven years, and shall also be liable to fine;",
"if punishable with imprisonment for life, or with imprisonment.—and if the offence is",
"punishable with[imprisonment for life], or with imprisonment which may extend to ten years, shall",
2,
"be punished with imprisonment of either description for a term which may extend to three years,",
and shall also be liable to fine;,
"and if the offence is punishable with imprisonment not extending to ten years, shall be punished",
with imprisonment of the description provided for the offence for a term which may extend to one-,
"fourth part of the longest term of imprisonment provided for the offence, or with fine, or with both.",
[Exception.—The provisions of sections 213 and 214 do not extend to any case in which the,
3,
offence may lawfully be compounded.],
[***],
4,
CLASSIFICATION OF OFFENCE,
Para I,
Punishment—Imprisonment for 7 years and fine—Non-cognizable—Bailable—Triable by,
Magistrate of the first class—Non-compoundable.,
Para II,
Punishment—Imprisonment for 3 years and fine-—Non-cognizable—Bailable—Triable by,
Magistrate of the first class—Non-compoundable.,
Para III,
LLaatteessttLLaawwss..ccoomm,
153,
"Punishment—Imprisonment for a quarter of the longest term provided for the offence, or fine, or",
both—Non-cognizable—Bailable—Triable by Magistrate of the first class—Non-compoundable.,
———————-,
"1. Subs. by Act 26 of 1955, sec. 117 and Sch., for “transportation for life” (w.e.f. 1-1-1956).",
"2. Subs. by Act 42 of 1953, sec. 4 and Sch. III, for “to restore or cause the restoration of”",
(w.e.f. 23-12-1953).,
"3. Subs. by Act 8 of 1882, sec. 6, for the original Exception.",
"4. Illustrations rep. by Act 10 of 1882, sec. 2 and Sch. I.",
Section 215. Taking gift to help to recover,
"stolen property, etc.",
Whoever takes or agrees or consents to take any gratification under pretence or on account of,
helping any person to recover any movable property of which he shall have been deprived by any,
"offence punishable under this Code, shall, unless he uses all means in his power to cause the",
"offender to be apprehended and convicted of the offence, be punished with imprisonment of either",
"description for a term which may extend to two years, or with fine, or with both.",
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 2 years, or fine, or both—Cognizable—Bailable—Triable by",
Magistrate of the first class—Non-compoundable.,
Section 216. Harbouring offender who has,
escaped from custody or whose apprehension,
has been ordered,
"Whenever any person convicted of or charged with an offence, being in lawful custody for that",
"offence, escapes from such custody;",
"or whenever a public servant, in the exercise of the lawful powers of such public servant, orders a",
"certain person to be apprehended for an offence, whoever, knowing of such escape or order for",
"apprehension, harbours of conceals that person with the intention of preventing him from being",
"apprehended, shall be punished in the manner following that is to say,—",
LLaatteessttLLaawwss..ccoomm,
154,
if a capital offence.—if the offence for which the person was in custody or is ordered to be,
"apprehended is punishable with death, he shall be punished with imprisonment of either description",
"for a term which may extend to seven years, and shall also be liable to fine;",
"if punishable with imprisonment for life, or with imprisonment.—if the offence is punishable",
"with[imprisonment for life], or imprisonment for ten years, he shall be punished with imprisonment",
1,
"of either description for a term which may extend to three years, with or without fine;",
and if the offence is punishable with imprisonment which may extend to one year and not to ten,
"years, he shall be punished with imprisonment of the description provided for the offence for a term",
which may extend to one-fourth part of the longest term of the imprisonment provided for such,
"offence, or with fine, or with both.",
[“Offence” in this section includes also any act or omission of which a person is alleged to have,
2,
"been guilty out of [India], which, if he had been guilty of it in [India], would have been punishable",
3 3,
"as an offence, and for which he is, under any law relating to extradition, [***] or otherwise, liable",
4,
"to be apprehended or detained in custody in [India]; and every such act or omission shall, for the",
3,
"purposes of this section, be deemed to be punishable as if the accused person had been guilty of it",
in [India].],
3,
Exception.—This provision does not extend to the case in which the harbour or concealment is by,
the husband or wife of the person to be apprehended.,
CLASSIFICATION OF OFFENCE,
Para I,
Punishment—Imprisonment for 7 years and fine—Cognizable—Bailable—Triable by Magistrate,
of the first class—Non-compoundable.,
Para II,
"Punishment—Imprisonment for 3 years, with or without fine—Cognizable—Bailable—Triable by",
Magistrate of the first class—Non-compoundable.,
Para III,
"Punishment—Imprisonment for a quarter of the longest term provided for the offence, or fine, or",
both—Cognizable—Bailable—Triable by Magistrate of the first class—Non-compoundable.,
——————-,
LLaatteessttLLaawwss..ccoomm,
155,
"1. Subs. by Act 26 of 1955, sec. 117 and Sch., for “transportation for life” (w.e.f. 1-1-1956).",
"2. Ins. by Act 10 of 1886, sec. 23.",
"3. The words “British India” have successively been subs. by the A.O. 1948, the A.O. 1950",
"and Act 3 of 1951, sec. 3 and Sch., to read as above.",
"4. The words “or under the Fugitive Offenders Act, 1881,” omitted by Act 3 of 1951, sec. 3",
and Sch.,
Section 216A. Penalty for harbouring robbers,
or dacoits,
"[216A. Penalty for harbouring robbers or dacoits.— Whoever, knowing or having reason to believe",
1,
"that any persons are about to commit or have recently committed robbery or dacoity, harbours them",
"or any of them, with the intention of facilitating the commission of such robbery or dacoity or of",
"screening them or any of them from punishment, shall be punished with rigorous imprisonment for",
"a term which may extend to seven years, and shall also be liable to fine.",
Explanation,
For the purposes of this section it is immaterial whether the robbery or dacoity is intended to be,
"committed, or has been committed, within or without [India]",
2,
Exception.— This provision does not extend to the case in which the harbour is by the husband or,
wife of the offender.],
CLASSIFICATION OF OFFENCE,
Punishment—Rigorous imprisonment for 7 years and fine—Cognizable—Bailable—Triable by,
Magistrate of the first class—Non-compoundable.,
———————–,
"1. Ins. by Act 3 of 1894, sec. 8.",
"2. The words “British India” have successively been subs. by the A.O. 1948, the A.O. 1950",
"and Act 3 of 1951, sec. 3 and Sch., to read as above.",
Section 216B. Definition of “harbour” in,
"sections 212, 216 and 216A",
LLaatteessttLLaawwss..ccoomm,
156,
"[216B. Definition of “harbour” in sections 212, 216 and 216A.— [Rep. by the Indian Penal Code",
1,
"(Amendment) Act, 1942 (8 of 1942), sec. 3.]]",
——————–,
"1. Ins. by Act 3 of 1894, sec. 8.",
Section 217. Public servant disobeying,
direction of law with intent to save person,
from punishment or property from forfeiture,
"Whoever, being a public servant, knowingly disobeys any direction of the law as to the way in",
"which he is conduct himself as such public servant, intending thereby to save, or knowing it to be",
"likely that he will thereby save, any person from legal punishment, or subject him to a less",
"punishment than that to which he is liable, or with intent to save, or knowing that he is likely thereby",
"to save, any property from forfeiture or any charge to which it is liable by law, shall be punished",
"with imprisonment of either description for a term which may extend to two years, or with fine, or",
with both.,
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 2 years, or fine, or both—Non-cognizable—Bailable—Triable by",
any Magistrate—Non-compoundable.,
Section 218. Public servant framing incorrect,
record or writing with intent to save person,
from punishment or property from forfeiture,
"Whoever, being a public servant, and being as such public servant, charged with the preparation of",
"any record or other writing, frames that record or writing in a manner which he knows to be",
"incorrect, with intent to cause, or knowing it to be likely that he will thereby cause, loss or injury",
"to the public or to any person, or with intent thereby to save, or knowing it to be likely that he will",
"thereby save, any person from legal punishment, or with intent to save, or knowing that he is likely",
"thereby to save, any property from forfeiture or other charge to which it is liable by law, shall be",
"punished with imprisonment of either description for a term which may extend to three years, or",
"with fine, or with both.",
LLaatteessttLLaawwss..ccoomm,
157,
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 3 years, or fine, or both—Cognizable—Bailable—Triable by",
Magistrate of the first class—Non-compoundable.,
Section 219. Public servant in judicial,
"proceeding corruptly making report, etc.,",
contrary to law,
"Whoever, being a public servant, corruptly or maliciously makes or pronounces in any stage of a",
"judicial proceeding, any report, order, verdict, or decision which he knows to be contrary to law,",
shall be punished with imprisonment of either description for a term which may extend to seven,
"years, or with fine, or with both.",
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 7 years, or fine, or both—Non-Cognizable—Bailable—Triable by",
Magistrate of the first class—Non-compoundable,
Section 220. Commitment for trial or,
confinement by person having authority who,
knows that he is acting contrary to law,
"Whoever, being in any office which gives legal authority to commit persons for trial or to",
"confinement, or to keep persons in confinement, corruptly or maliciously commits any person for",
"trial or to confinement, or keeps any person in confinement, in the exercise of that authority",
"knowing that in so doing he is acting contrary to law, shall be punished with imprisonment of either",
"description for a term which may extend to seven years, or with fine, or with both.",
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 7 years, or fine, or both—Non-cognizable—Bailable—Triable by",
Magistrate of the first class—Non-compoundable.,
LLaatteessttLLaawwss..ccoomm,
158,
Section 221. Intentional omission to,
apprehend on the part of public servant bound,
to apprehend,
"Whoever, being a public servant, legally bound as such public servant to apprehend or to keep in",
"confinement any person charged with or liable to apprehended for an offence, intentionally omits",
"to apprehend such person, or intentionally suffers such person to escape, or intentionally aids such",
"person in escaping or attempting to escape from such confinement, shall be punished as follows,",
that is to say:—,
"with imprisonment of either description for a term which may extend to seven years, with or without",
"fine, if the person in confinement, or who ought to have been apprehended, was charged with, or",
"liable to be apprehended for, an offence punishable with death; or",
"with imprisonment of either description for a term which may extend to three years, with or without",
"fine, if the person in confinement, or who ought to have been apprehended, was charged with, or",
"liable to be apprehended for, an offence punishable with [imprisonment for life] or imprisonment",
1,
for a term which may extend to ten years; or,
"with imprisonment of either description for a term which may extend to two years, with or without",
"fine, if the person in confinement, or who ought to have been apprehended, was charged with, or",
"liable to be apprehended for, an offence punishable with imprisonment for a term less than ten",
years.,
CLASSIFICATION OF OFFENCE,
Para I,
"Punishment—Imprisonment for 7 years, with or without fine—According as the offence in relation",
to which such omission has been made in cognizable or non-cognizable—Bailable—Triable by,
Magistrate of the first class—Non-compoundable.,
Para II,
"Punishment—Imprisonment for 3 years, with or without fine—Cognizable—Bailable—Triable by",
Magistrate of the first class—Non-compoundable.,
Para III,
LLaatteessttLLaawwss..ccoomm,
159,
"Punishment—Imprisonment for 2 years, with or without fine—Cognizable—Bailable—Triable by",
Magistrate of the first class—Non-compoundable.,
————————,
"1. Subs. by Act 26 of 1955, sec. 117 and Sch., for “transportation for life” (w.e.f. 1-1-1956).",
Section 222. Intentional omission to,
apprehend on the part of public servant bound,
to apprehend person under sentence or,
lawfully committed,
"Whoever, being a public servant, legally bound as such public servant to apprehend or to keep in",
confinement any person under sentence of a Court of Justice for any offence [or lawfully,
1,
"committed to custody], intentionally omits to apprehend such person, or intentionally suffers such",
"person to escape, or intentionally aids such person in escaping or attempting to escape from such",
"confinement, shall be punished as follows, that is to say :—",
with [imprisonment of life] or with imprisonment of either description for a term which may extend,
2,
"to fourteen years, with or without fine, if the person in confinement, or who ought to have been",
"apprehended, is under sentence of death; or",
"with imprisonment of either description for a term which may extend to seven years, with or without",
"fine, if the person in confinement or who ought to have been apprehended, is subject, by a sentence",
"of a Court of Justice, or by virtue of a commutation of such sentence, to [imprisonment for",
2,
life][***] [***] [***] [***] or imprisonment for a term of ten years or upwards; or,
3 4 5 6,
"with imprisonment of either description for a term which may extend to two years, or with fine, or",
"with both, if the person in confinement, or who ought to have been apprehended is subject, by a",
"sentence of a Court of Justice, to imprisonment for a term not exceeding to ten years [or if the",
7,
person was lawfully committed to custody].,
CLASSIFICATION OF OFFENCE,
Para I,
"Punishment—Imprisonment for life, or imprisonment for 14 years, with or without fine—",
Cognizable—Non-bailable—Triable by Court of Session—Non-compoundable.,
Para II,
LLaatteessttLLaawwss..ccoomm,
160,
"Punishment—Imprisonment for 7 years, with or without fine—Cognizable—Non-bailable—",
Triable by Magistrate of the first class—Non-compoundable.,
Para III,
"Punishment—Imprisonment for 3 years, or fine, or both—Cognizable—Bailable—Triable by",
Magistrate of the first class—Non-compoundable.,
————————,
"1. Ins. by Act 27 of 1870, sec. 8.",
"2. Subs. by Act 26 of 1955, sec. 117 and Sch., for “transportation for life” (w.e.f. 1-1-1956).",
"3. The words “or penal servitude for life” omitted by Act 17 of 1949, sec. 2 (w.e.f. 6-4-1949).",
"4. The words “or to” omitted by Act 36 of 1957, sec. 3 and Sch. II (w.e.f. 17-9-1957).",
"5. The word “transportation” omitted by Act 26 of 1955, sec. 117 and Sch. (w.e.f. 1-1-1956).",
"6. The words “or penal servitude” omitted by Act 17 of 1949, sec. 2 (w.e.f. 6-4-1949).",
"7. Ins. by Act 27 of 1870, sec. 8.",
Section 223. Escape from confinement or,
custody negligently suffered by public,
servant,
"Whoever, being a public servant legally bound as such public servant to keep in confinement any",
"person charged with or convicted of any offence [or lawfully committed to custody], negligently",
1,
"suffers such person to escape from confinement, shall be punished with simple imprisonment for a",
"term which may extend to two years, or with fine, or with both.",
CLASSIFICATION OF OFFENCE,
"Punishment—Simple imprisonment for 2 years, or fine, or both—Non-cognizable—Bailable—",
Triable by any Magistrate—Non-compoundable.,
————————–,
"1. Ins. by Act 27 of 1870, sec. 8.",
Section 224. Resistance or obstruction by a,
person to his lawful apprehension,
LLaatteessttLLaawwss..ccoomm,
161,
Whoever intentionally offers any resistance or illegal obstruction to the lawful apprehension of,
"himself for any offence with which he is charged or of which he has been convicted, or escapes or",
"attempts to escape from custody in which he is lawfully detained for any such offence, shall be",
"punished with imprisonment of either description for a term which may extend to two years, or",
"with fine, or with both.",
Explanation,
The punishment in this section is in addition to the punishment for which the person to be,
"apprehended or detained in custody was liable for the offence with which he was charged, or of",
which he was convicted.,
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 2 years, or fine, or both—Cognizable—Bailable—Triable by any",
Magistrate—Non-compoundable.,
Section 225. Resistance or obstruction to,
lawful apprehension of another person,
Whoever intentionally offers any resistance or illegal obstruction to the lawful apprehension of any,
"other person for an offence, or rescues or attempts to rescue any other person from any custody in",
"which that person is lawfully detained for an offence, shall be punished with imprisonment of either",
"description for a term which may extend to two years, or with fine, or with both;",
"or, if the person to be apprehended, or the person rescued or attempted to be rescued, is charged",
with or liable to be apprehended for an offence punishable with [imprisonment for life] or,
1,
"imprisonment for a term which may extend to ten years, shall be punished with imprisonment of",
"either description for a term which may extend to three years, and shall also be liable to fine;",
"or, if the person to be apprehended, or the person attempted to be rescued, is charged with or liable",
"to be apprehended for an offence punishable with death, shall be punished with imprisonment of",
"either description for a term which may extend to seven years, and shall also be liable to fine;",
"or, if the person to be apprehended or rescued, or attempted to be rescued, is liable under the",
"sentence of a Court of Justice, or by virtue of a commutation of such a sentence, to [imprisonment",
1,
"for life] [***] [***] [***] or imprisonment, for a term of ten years or upwards, shall be punished",
2 3 4,
LLaatteessttLLaawwss..ccoomm,
162,
"with imprisonment of either description for a term which may extend to seven years, and shall also",
be liable to fine;,
"or, if the person to be apprehended or rescued, or attempted to be rescued, is under sentence of",
"death, shall be punished with [imprisonment for life] or imprisonment of either description for a",
1,
"term not exceeding ten years, and shall also be liable to fine",
CLASSIFICATION OF OFFENCE,
Para I,
"Punishment—Imprisonment for 2 years, or fine, or both—Cognizable—Bailable—Triable by any",
Magistrate—Non-compoundable.,
Para II,
Punishment—Imprisonment for 3 years and fine—Cognizable—Non-bailable—Triable by,
Magistrate of the first class—Non-compoundable.,
Para III & IV,
Punishment—Imprisonment for 7 years and fine—Cognizable—Non-bailable—Triable by,
Magistrate of the first class.,
Para V,
Punishment—Imprisonment for life or imprisonment for 10 years and fine—Cognizable—Non-,
bailable—Triable by Court of Session.,
————————-,
"1. Subs. by Act 26 of 1955, sec. 117 and Sch., for “transportation for life” (w.e.f. 1-1-1956).",
"2. The words “or to” omitted by Act 36 of 1957, sec. 3 and Sch. II (w.e.f. 17-9-1957).",
"3. The word “transportation” omitted by Act 26 of 1955, sec. 117 and Sch. (w.e.f. 1-1-1956).",
"4. The words “penal servitude” omitted by Act 17 of 1949, sec. 2 (w.e.f. 6-4-1949).",
"Section 225A. Omission to apprehend, or",
"sufferance of escape, on part of public",
"servant, in cases not otherwise, provided for",
"[225A. Omission to apprehend, or sufferance of escape, on part of public servant, in cases not",
1,
"otherwise, provided for.— Whoever, being a public servant legally bound as such public servant",
LLaatteessttLLaawwss..ccoomm,
163,
"to apprehend, or to keep in confinement, any person in any case not provided for in section 221,",
"section 222 or section 223, or in any other law for the time being in force, omits to apprehend that",
"person or suffers him to escape from confinement, shall be punished—",
"(a) if he does so intentionally, with imprisonment of either description for a term which may extend",
"to three years, or with fine, or with both; and",
"(b) if he does so negligently, with simple imprisonment for a term which may extend to two years,",
"or with fine, or with both.]",
CLASSIFICATION OF OFFENCE,
Para I,
"Punishment—Imprisonment for 3 years, or fine, or both—Non-cognizable—Bailable—Triable by",
Magistrate of the first class—Non-compoundable.,
Para II,
"Punishment—Simple imprisonment for 2 years, or fine, or both—Non-cognizable—Bailable—",
Triable by any Magistrate.,
———————–,
"1. Sections 225A and 225B subs. by Act 10 of 1886, sec. 24(1), for section 225A which had",
"been ins. by Act 27 of 1870, sec. 9.",
Section 225B. Resistance or obstruction to,
"lawful apprehension, or escape or rescue in",
cases not otherwise provided for,
"[225B. Resistance or obstruction to lawful apprehension, or escape or rescue in cases not otherwise",
1,
"provided for.— Whoever, in any case not provided for in section 224 or section 225 or in any other",
"law for the time being in force, intentionally offers any resistance or illegal obstruction to the lawful",
"apprehension of himself or of any other person, or escapes or attempts to escape from any custody",
"in which he is lawfully detained, or rescues or attempts to rescue any other person from any custody",
"in which that person is lawfully detained, shall be punished with imprisonment of either description",
"for a term which may extend to six months, or with fine, or with both.]",
CLASSIFICATION OF OFFENCE,
LLaatteessttLLaawwss..ccoomm,
164,
"Punishment—Imprisonment for 6 months, or fine, or both—Cognizable—Bailable—Triable by",
any Magistrate—Non-compoundable.,
———————–,
"1. Sections 225A and 225B subs. by Act 10 of 1886, sec. 24(1), for section 225A which had",
"been ins. by Act 27 of 1870, sec. 9.",
Section 226. Unlawful return from,
transportation,
"[Rep. by the Code of Criminal Procedure (Amendment) Act, 1995 (26 of 1995), sec. 117 and Sch.",
(w.e.f. 1.1.1956).],
Section 227. Violation of condition of,
remission of punishment,
"Whoever, having accepted any conditional remission of punishment, knowingly violates any",
"condition on which such remission was granted, shall be punished with the punishment to which",
"he was originally sentenced, if he has already suffered no part of that punishment, and if he has",
"suffered any part of that punishment, then with so much of that punishment as he has not already",
suffered.,
CLASSIFICATION OF OFFENCE,
"Punishment—Punishment of original sentence, or if part of the punishment has been undergone,",
the residue—Cognizable—Non-bailable—Triable by the court by which the original offence was,
triable—Non-compoundable.,
Section 228. Intentional insult or interruption,
to public servant sitting in judicial proceeding,
"Whoever intentionally offers any insult, or causes any interruption to any public servant, while",
"such public servant is sitting in any stage of a judicial proceeding, shall be punished with simple",
"imprisonment for a term which may extend to six months, or with fine which may extend to one",
"thousand rupees, or with both.",
LLaatteessttLLaawwss..ccoomm,
165,
State Amendment,
Andhra Pradesh,
In Andhra Pradesh offence under section 228 is cognizable.,
"[Vide A.P.G.O. Ms. No. 732, dated 5th December, 1991].",
CLASSIFICATION OF OFFENCE,
"Punishment—Simple Imprisonment for 6 months, or fine of 1,000 rupees or both—Non-",
"cognizable—Bailable—Triable by the Court in which the offence is committed, subject to the",
provisions of Chapter XXVI—Non-compoundable.,
Section 228A. Disclosure of identity of the,
victim of certain offences etc,
[228A. Disclosure of identity of the victim of certain offences etc.— (1) Whoever prints or,
1,
publishes the name or any matter which may make known the identity of any person against whom,
"an 2[“offence under section 376, section 376A, section 376B, section 376C, section 376D or section",
376E”] is alleged or found to have been committed (hereafter in this section referred to as the,
victim) shall be punished with imprisonment of either description for a term which may extend to,
two years and shall also be liable to fine.,
(2) Nothing in sub-section (1) extends to any printing or publication of the name or any matter,
which may make known the identity of the victim if such printing or publication is—,
(a) by or under the order in writing of the officer-in-charge of the police station or the police officer,
making the investigation into such offence acting in good faith for the purposes of such,
investigation; or,
"(b) by, or with the authorisation in writing of, the victim; or",
"(c) where the victim is dead or minor or of unsound mind, by, or with the authorisation in writing",
"of, the next of kin of the victim:",
Provided that no such authorisation shall be given by the next of kin to anybody other than the,
"chairman or the secretary, by whatever name called, of any recognised welfare institution or",
organisation.,
LLaatteessttLLaawwss..ccoomm,
166,
Explanation,
"For the purposes of this sub-section, “recognised welfare institution or organisation” means a social",
welfare institution or organisation recognised in this behalf by the Central or State Government.,
(3) Whoever prints or publishes any matter in relation to any proceeding before a court with respect,
to an offence referred to in sub-section (1) without the previous permission of such Court shall be,
punished with imprisonment of either description for a term which may extend to two years and,
shall also be liable to fine.,
Explanation,
The printing or publication of the judgment of any High Court or the Supreme Court does not,
amount to an offence within the meaning of this section.],
CLASSIFICATION OF OFFENCE,
Para I,
Punishment—Imprisonment for two years and fine—Cognizable—Bailable—Triable by any,
Magistrate—Non-compoundable.,
Para II,
Punishment—Imprisonment for two years and fine—Cognizable—Bailable—Triable by any,
Magistrate—Non-compoundable.,
Comments,
Name of victim to be suppressed,
Section 228A of I.P.C. makes disclosure of identity of victim of certain offences punishable.,
Printing or publishing of any matter which may make known the identity of any person against,
"whom an offence under section 376, 376A, 376B, 376C or 376D is alleged or found to have been",
"committed can be punished. True it is, the restriction does not relate to printing or publication of",
judgment by High Court or Supreme Court. But in view of the social object of preventing social,
victimization or ostracism of the victim of a sexual offence for which section 228A has been,
"enacted, it would be appropriate that in the judgements, be it of Supreme Court, High Court or",
"lower court, the name of the victim should not be indicated; State of Punjab v. Ramdev Singh, AIR",
2004 SC 1290.,
LLaatteessttLLaawwss..ccoomm,
167,
———————,
"1. Ins. by Act 43 of 1983, sec. 2 (w.e.f. 25-12-1983).",
"2. Inserted by Section 4 of ‘The Criminal Law (Amendment) Act, 2013′",
Section 229. Personation of a juror or,
assessor,
"Whoever by personation or otherwise, shall intentionally cause, or knowingly suffer himself to be",
"returned, empanelled or sworn as a juryman or assessor in any case in which he knows that he is",
"not entitled by law to be so returned, empanelled or sworn, or knowing himself to have been so",
"returned, empanelled or sworn contrary to law, shall voluntarily serve on such jury or as such",
"assessor, shall be punished with imprisonment of either description for a term which may extend",
"to two years, or with fine, or with both.",
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 2 years, or fine, or both—Non-cognizable—Bailable—Triable by",
Magistrate of the first class—Non-compoundable.,
Section 229A. Failure by person released on,
bail or bond to appear in Court,
"[229A. Failure by person released on bail or bond to appear in Court.— Whoever, having been",
1,
"charged with an offence and released on bail or on bond without sureties, fails without sufficient",
"cause (the burden of proving which shall lie upon him), to appear in Court in accordance with the",
"terms of the bail or bond, shall be punished with imprisonment of either description for a term",
"which may extend to one year, or with fine, or with both.",
Explanation,
The punishment under this section is—,
(a) in addition to the punishment to which the offender would be liable on a conviction for the,
offence with which he has been charged; and,
(b) without prejudice to the power of the Court to order forfeiture of the bond.],
LLaatteessttLLaawwss..ccoomm,
168,
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 1 year, or fine, or both—Cognizable—Non-bailable—Triable by",
any Magistrate—Non-compoundable.,
—————————–,
"1. Ins. by Act 25 of 2005, sec. 44 (w.e.f. 23-6-2006)",
Section 230. Coin defined,
"[Coin is metal used for the time being as money, and stamped and issued by the authority of some",
1,
State or Sovereign Power in order to be so used.],
Indian coin.—[Indian coin is metal stamped and issued by the authority of the Government of,
2,
India in order to be used as money; and metal which has been so stamped and issued shall continue,
"to be Indian coin for the purposes of this Chapter, notwithstanding that it may have ceased to be",
used as money.],
Illustrations,
(a) Cowries are not coin.,
"(b) Lumps of unstamped copper, though used as money, are not coin.",
"(c) Medals are not coin, in as much as they are not intended to be used as money.",
(d) The coin denominated as the Company’s rupee is [Indian coin].,
3,
[(e) The “Farukhabad rupee” which was formerly used as money under the authority of the,
4,
Government of India is 4[Indian coin] although it is no longer so used].,
————————,
"1. Subs. by Act 19 of 1872, sec. 1, for the original first paragraph.",
"2. Subs. by A.O. 1950, for the former paragraph.",
"3. Subs. by the A.O. 1950, for “the Queen’s coin”",
"4. Ins. by Act 6 of 1896, sec. 1.",
Section 231. Counterfeiting coin,
"Whoever counterfeits or knowingly performs any part of the process of counterfeiting coin, shall",
"be punished with imprisonment of either description for a term which may extend to seven years,",
and shall also be liable to fine.,
LLaatteessttLLaawwss..ccoomm,
169,
Explanation,
"A person commits this offence who intending to practice deception, or knowing it to be likely that",
"deception will thereby be practiced, causes a genuine coin to appear like a different coin.",
CLASSIFICATION OF OFFENCE,
Punishment—Imprisonment for 7 years and fine—Cognizable—Non-bailable—Triable by,
Magistrate of the first class—Non-compoundable.,
Section 232. Counterfeiting Indian coin,
"Whoever counterfeits, or knowingly performs any part of the process of counterfeiting [Indian",
1,
"coin], shall be punished with [imprisonment for life], or with imprisonment of either description",
2,
"for a term which may extent to ten years, and shall also be liable to fine.",
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for life, or imprisonment for 10 years and fine—Cognizable—Non-",
bailable—Triable by Court of Session—Non-compoundable.,
———————-,
"1. Subs. by the A.O. 1950, for “the Queen’s coin”.",
"2. Subs. by Act 26 of 1955, sec. 117 and Sch., for “transportation for life” (w.e.f. 1-1-1956).",
Section 233. Making or selling instrument for,
counterfeiting coin,
"Whoever makes or mends, or performs any part of the process of making or mending, or buys, sells",
"or disposes of, any die or instrument, for the purpose of being used, or knowing or having reason",
"to believe that it is intended to be used, for the purpose of counterfeiting coin, shall be punished",
"with imprisonment of either description for a term which may extend to three years, and shall also",
be liable to fine.,
CLASSIFICATION OF OFFENCE,
Punishment—Imprisonment for 3 years and fine—Cognizable—Non-Bailable—Triable by,
Magistrate of the first class—Non-compoundable.,
LLaatteessttLLaawwss..ccoomm,
170,
Section 234. Making or selling instrument for,
counterfeiting Indian coin,
"Whoever makes or mends, or performs any part of the process of making or mending, or buys, sells",
"or disposes of , any die or instrument, for the purpose of being used, or knowing or having reason",
"to believe that it is intended to be used, for the purpose of counterfeiting [Indian coin], shall be",
1,
"punished with imprisonment of either description for a term which may extend to seven years, and",
shall also be liable to fine.,
CLASSIFICATION OF OFFENCE,
Punishment—Imprisonment for 7 years and fine—Cognizable—Non-bailable—Triable by Court,
of Session—Non-compoundable.,
———————–,
"1. Subs. by the A.O. 1950, for “the Queen’s coin”.",
"Section 235. Possession of instrument, or",
material for the purpose of using the same for,
counterfeiting coin,
"Whoever is in possession of any instrument or material, for the purpose of using the same for",
"counterfeiting coin, or knowing or having reason to believe that the same is intended to be used for",
"that purpose, shall be punished with imprisonment of either description for a term which may",
"extend to three years, and shall also be liable to fine;",
"if Indian coin.—and if the coin to be counterfeited is [Indian coin], shall be punished with",
1,
"imprisonment of either description for a term which may extend to ten years, and shall also be liable",
to fine.,
CLASSIFICATION OF OFFENCE,
Para I,
Punishment—Imprisonment for 3 years and fine—Cognizable—Non-bailable—Triable by,
Magistrate of the first class—Non-compoundable.,
Para II,
LLaatteessttLLaawwss..ccoomm,
171,
Punishment—Imprisonment for 10 years and fine—Cognizable—Non-bailable—Triable by Court,
of Session—Non-compoundable.,
———————-,
"1. Subs. by the A.O. 1950, for “the Queen’s coin”.",
Section 236. Abetting in India the,
counterfeiting out of India of coin,
"Whoever, being within [India], abets the counterfeiting of coin out of [India], shall be punished in",
1 1,
the same manner as if he abetted the counterfeiting of such coin within [India].,
1,
CLASSIFICATION OF OFFENCE,
Punishment—The punishment provided for abetting the counterfeiting of such coin within India—,
Cognizable—Non-bailable—Triable by Court of Session—Non-compoundable.,
—————————,
"1. The words “British India” have successively been subs. by the A.O. 1948, the A.O. 1950",
"and Act 3 of 1951, sec. 3 and Sch., to read as above.",
Section 237. Import or export of counterfeit,
coin,
"Whoever imports into [India],or exports there from, any counterfeit coin, knowing or having reason",
1,
"to believe that the same is counterfeit, shall be punished with imprisonment of either description",
for a term which may extend to three years and shall also be liable to fine.,
CLASSIFICATION OF OFFENCE,
Punishment—Imprisonment for 3 years and fine—Cognizable—Non-bailable—Triable by,
Magistrate of the first class—Non-compoundable.,
—————————,
"1. The words “British India” have successively been subs. by the A.O. 1948, the A.O. 1950",
"and Act 3 of 1951, sec. 3 and Sch., to read as above.",
LLaatteessttLLaawwss..ccoomm,
172,
Section 238. Import or export of counterfeits,
of the India coin,
"Whoever imports into [India], or exports there from any counterfeit coin, which he knows or has",
1,
"reason to believe to be a counterfeit of [Indian coin], shall be punished with imprisonment",
2,
"with [imprisonment for life], or with imprisonment of either description for a term which may",
3,
"extend to ten years, and shall also be liable to fine.",
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for life, or imprisonment for 10 years and fine—Cognizable—Non-",
bailable—Triable by Court of Session—Non-compoundable.,
—————————,
"1. The words “British India” have successively been subs. by the A.O. 1948, the A.O. 1950",
"and Act 3 of 1951, sec. 3 and Sch., to read as above.",
"2. Subs. by the A.O. 1950, for “the Queen’s coin”.",
"3. Subs. by Act 26 of 1955, sec. 117 and Sch., for “transportation for life” (w.e.f. 1-1-1956).",
"Section 239. Delivery of coin, possessed with",
knowledge that it is counterfeit,
"Whoever, having any counterfeit coin, which at the time when he became possessed of it knew to",
"be counterfeit, fraudulently or with intent that fraud may be committed, delivers the same to any",
"person, or attempts to induce any person to receive it shall be punished with imprisonment of either",
"description for a term which may extend to five years, and shall also be liable to fine.",
CLASSIFICATION OF OFFENCE,
Punishment—Imprisonment for 5 years and fine—Cognizable—Non-bailable—Triable by,
Magistrate of the first class—Non-compoundable.,
"Section 240. Delivery of Indian coin,",
possessed with knowledge that it is,
counterfeit,
LLaatteessttLLaawwss..ccoomm,
173,
"Whoever, having any counterfeit coin which is a counterfeit of [Indian coin], and which, at the",
1,
"time when he became possessed of it, he knew to be a counterfeit of [Indian coin], fraudulently or",
1,
"with intent that fraudulently or with intent that fraud may be committed, delivers the same to any",
"person, or attempts to induce any person to receive it shall be punished with imprisonment of either",
"description for a term which may extend to ten years, and shall also be liable to fine.",
CLASSIFICATION OF OFFENCE,
Punishment—Imprisonment for 10 years and fine—Cognizable—Non-bailable—Triable by Court,
of Session—Non-compoundable.,
————————-,
"1. Subs. by the A.O. 1950, for “Queen’s coin”.",
"Section 241. Delivery of coin as genuine,",
"which, when first possessed, the deliverer did",
not know to be counterfeit,
"Whoever delivers to any other person as genuine, or attempts to induce any other person to receive",
"as genuine, any counterfeit coin which he knows to be counterfeit, but which he did not know to",
"be counterfeit at the time when he took it into his possession, shall be punished with imprisonment",
"of either description for a term which may extend to two years, or with fine to an amount which",
"may extend to ten times the value of the coin counterfeited, or with both.",
Illustration,
"A, a coiner, delivers counterfeit Company’s rupees to his accomplice B, for the purpose of uttering",
"them. B sells the rupees to C, another utterer, who buys them knowing them to be counterfeit. C",
"pays away the rupees for good to D, who receives them, not knowing them to be counterfeit. D,",
"after receiving the rupees, discovers that they are counterfeit and pays them away as if they were",
"good. Here D is punishable only under his section, but B and C are punishable under section 239",
"or 240, as the case may be.",
CLASSIFICATION OF OFFENCE,
"Punishment—Imprisonment for 2 years, or fine, or 10 times the value of the coin counterfeited, or",
both—Cognizable—Non-bailable—Triable by any Magistrate—Non-compoundable.,
LLaatteessttLLaawwss..ccoomm,
174,
Section 242. Possession of counterfeit coin,
by person who knew it to be counterfeit when,
he became possessed thereof,
"Whoever, fraudulently or with intent that fraud may be committed, is in possession of counterfeit",
"coin, having known at the time when he became possessed thereof that such coin was counterfeit,",
shall be punished with imprisonment of either description for a term which may extend to three,
"years, and shall also be liable to fine.",
CLASSIFICATION OF OFFENCE,
Punishment—Imprisonment for 3 years and fine—Cognizable—Non-bailable—Triable by,
Magistrate of the first class—Non-compoundable.,
Section 243. Possession of Indian coin by,
person who knew it to be counterfeit when he,
became possessed thereof,
"Whoever, fraudulently or with intent that fraud may be committed, is in possession of counterfeit",
"coin, which is a counterfeit of [Indian coin], having known at the time when he became possessed",
1,
"of it that it was counterfeit, shall be punished with imprisonment of either description for a term",
"which may extend to seven years, and shall also be liable to fine.",
CLASSIFICATION OF OFFENCE,
Punishment—Imprisonment for 7 years and fine—Cognizable—Non-bailable—Triable by,
Magistrate of the first class—Non-compoundable.,
——————————,
"1. Subs. by the A.O. 1950, for “Queen’s coin”.",
Section 244. Person employed in mint,
causing coin to be of different weight or,
composition from that fixed by law,
"Whoever, being employed in any mint lawfully established in [India], does any act, or omits what",
1,
"he is legally bound to do, with the intention of causing any coin issued from that mint to be of a",
LLaatteessttLLaawwss..ccoomm,
175,
"different weight or composition from the weight or composition fixed by law, shall be punished",
"with imprisonment of either description for a term which may extend to seven years, and shall also",
be liable to fine.,
CLASSIFICATION OF OFFENCE,
Punishment—Imprisonment for 7 years and fine—Cognizable—Non-bailable—Triable by,
Magistrate of the first class—Non-compoundable.,
—————————,
"1. The words “British India” have successively been subs. by the A.O. 1948, the A.O. 1950",
"and Act 3 of 1951, sec. 3 and Sch., to read as above.",
Section 245. Unlawfully taking coining,
instrument from mint,
"Whoever, without lawful authority, takes out of any mint, lawfully established in [India], any",
1,
"coining tool or instrument, shall be punished with imprisonment of either description for a term",
"which may extend to seven years, and shall also be liable to fine.",
CLASSIFICATION OF OFFENCE,
Punishment—Imprisonment for 7 years and fine—Cognizable—Non-bailable—Triable by,
Magistrate of the first class—Non-compoundable.,
————————,
"1. The words “British India” have successively been subs. by the A.O. 1948, the A.O. 1950",
"and Act 3 of 1951, sec. 3 and Sch., to read as above.",
Section 246. Fraudulently or dishonestly,
diminishing weight or altering composition,
of coin,
Whoever fraudulently or dishonestly performs on any coin any operation which diminishes the,
"weight or alters the composition of that coin, shall be punished with imprisonment of either",
"description for a term which may extend to three years, and shall also be liable to fine.",
Explanation,
LLaatteessttLLaawwss..ccoomm,
176,
A person who scoops out part of the coin and puts anything else into the cavity alters the,
composition of that coin.,
Section 247. Fraudulently or dishonestly,
diminishing weight or altering composition,
of Indian coin,
Whoever fraudulently or dishonestly performs on [any Indian coin] any operation which,
1,
"diminishes the weight or alters the composition of that coin, shall be punished with imprisonment",
"of either description for a term which may extend to seven years, and shall also be liable to fine.",
CLASSIFICATION OF OFFENCE,
Punishment—Imprisonment for 7 years and fine—Cognizable—Non-bailable—Triable by,
Magistrate of the first class—Non-compoundable.,
—————————,
"1. Subs. by the A.O. 1950, for “any of the Queen’s coin”.",
Section 248. Altering appearance of coin with,
intent that it shall pass as coin of different,
description,
"Whoever performs on any coin any operation which alters the appearance of that coin, with the",
"intention that the said coin shall pass as a coin of a different description, shall be punished with",
"imprisonment of either description for a term which may extend to three years, and shall also be",
liable to fine.,
CLASSIFICATION OF OFFENCE,
Punishment—Imprisonment for 3 years and fine—Cognizable—Non-bailable—Triable by,
Magistrate of the first class—Non-compoundable.,
Section 249. Altering appearance of Indian,
coin with intent that it shall pass as coin of,
different description,
LLaatteessttLLaawwss..ccoomm,
177,
"whoever performs on [any Indian coin] any operation which alters the appearance of that coin,",
1,
"with the intention that the said coin shall pass as a coin of a different description, shall be punished",
"with imprisonment of either description for a term which may extend to seven years, and shall also",
be liable to fine.,
CLASSIFICATION OF OFFENCE,
Punishment—Imprisonment for 7 years and fine—Cognizable—Non-bailable—Triable by,
Magistrate of the first class—Non-compoundable.,
————————-,
"1. Subs. by the A.O. 1950, for “any of the Queen’s coin”.",
"Section 250. Delivery of coin, possessed with",
knowledge that it is altered,
"Whoever, having coin in his possession with respect to which the offence defined in section 246 or",
"248 has been committed, and having known at the time when he became possessed of such coin",
"that such offence had been committed with respect to it, fraudulently or with intent that fraud may",
"be committed, delivers such coin to any other person, or attempts to induce any other person to",
"receive the same, shall be punished with imprisonment of either description for a term which may",
"extend to five years, and shall also be liable to fine.",
CLASSIFICATION OF OFFENCE,
Punishment—Imprisonment for 5 years and fine—Cognizable—Non-bailable—Triable by,
Magistrate of the first class—Non-compoundable.,
"Section 251. Delivery of Indian coin,",
possessed with knowledge that it is altered,
"Whoever, having coin in his possession with respect to which the offence defined in section",
"247 or 249 has been committed, and having known at the time when he became possessed",
"of such coin that such offence had been committed, delivers such coin to any other person, or",
"attempts to induce any other person to receive the same, shall be punished with imprisonment",
"of either description for a term which may extend to ten years, and shall also be liable to fine.",
LLaatteessttLLaawwss..ccoomm,
178,
CLASSIFICATION OF OFFENCE Punishment—Imprisonment for 10 years and fine—,
Cognizable—Non-bailable—Triable by Court of Session—Non-compoundable.,
Section 252. Possession of coin by person,
who knew it to be altered when he became,
possessed thereof,
"Whoever, fraudulently or with intent that fraud may be committed, is in possession of coin with",
"respect to which the offence defined in either of the section 246 or 248 has been committed,",
having known at the time of becoming possessed thereof that such offence had been,
"committed with respect to such coin, shall be punished with imprisonment of either description",
for a term which may extend to three years and shall also be liable to fine.,
CLASSIFICATION OF OFFENCE Punishment—Imprisonment for 3 years and fine—,
Cognizable—Non-bailable—Triable by Magistrate of the first class—Non-compoundable.,
Section 253. Possession of Indian coin by,
person who knew it to be altered when he,
became possessed thereof,
"Whoever, fraudulently or with intent that fraud may be committed, is in possession of coin with",
"respect to which the offence defined in either of the section 247 or 249 has been committed,",
"having known at the time of becoming possessed thereof, that such offence had been",
"committed with respect to such coin, shall be punished with imprisonment of either description",
"for a term which may extend to five years, and shall also be liable to fine.",
CLASSIFICATION OF OFFENCE Punishment—Imprisonment for 5 years and fine—,
Cognizable—Non-bailable—Triable by Magistrate of the first class—Non-compoundable.,
LLaatteessttLLaawwss..ccoomm,
179,
"Section 254. Delivery of coin as genuine,",
"which, when first possessed, the deliverer",
did not know to be altered,
Whoever delivers to any other person as genuine or as a coin of a different description from,
"what it is, or attempts to induce any person to receive as genuine, or as a different coin from",
"what it is, any coin in respect of which he knows that any such operation as that mentioned in",
"section 246, 247, 248 or 249 has been performed, but in respect of which he did not, at the",
"time when he took it into his possession, know that such operation had been performed, shall",
"be punished with imprisonment of either description for a term which may extend to two years,",
or with fine to an amount which may extend to ten times the value of the coin for which the,
"altered coin is passed, or attempted to be passed.",
"CLASSIFICATION OF OFFENCE Punishment—Imprisonment for 2 years, or fine, or 10",
times the value of the coin—Cognizable—Non-bailable—Triable by any Magistrate—Non-,
compoundable.,
Section 255. Counterfeiting Government,
stamp,
"Whoever counterfeits, or knowingly performs any part of the process of counterfeiting, any",
"stamp issued by Government for the purpose of revenue, shall be punished",
"with [imprisonment for life], or with imprisonment of either description for a term which may",
1,
"extend to ten years, and shall also be liable to fine.",
Explanation A person commits this offence who counterfeits by causing a genuine stamp of,
one denomination to appear like a genuine stamp of a different denomination.,
"CLASSIFICATION OF OFFENCE Punishment—Imprisonment for life, or imprisonment for",
"10 years, and fine—Cognizable—Non-bailable—Triable by Court of Session—Non-",
compoundable. —————————–,
LLaatteessttLLaawwss..ccoomm,
180,
"1. Subs. by Act 26 of 1955, sec. 117 and Sch., for “transportation for life” (w.e.f. 1-1-",
1956).,
Section 256. Having possession of,
instrument or material for counterfeiting,
Government stamp,
"Whoever has in his possession any instrument or material for the purpose of being used, or",
"knowing or having reason to believe that it is intended to be used, for the purpose of",
"counterfeiting any stamp issued by Government for the purpose of revenue, shall be punished",
"with imprisonment of either description for a term which may extend to seven years, and shall",
also be liable to fine.,
CLASSIFICATION OF OFFENCE Punishment—Imprisonment for 7 years and fine—,
Cognizable—Non-bailable—Triable by Magistrate of the first class—Non-compoundable.,
Section 257. Making or selling instrument,
for counterfeiting Government stamp,
"Whoever makes or performs any part of the process of making, or buys, or sells, or dispose",
"of, any instrument for the purpose of being used, or knowing or having reason to believe that",
"it is intended to be used, for the purpose of counterfeiting any stamp issued by Government",
"for the purpose of revenue, shall be punished with imprisonment of either description for a",
"term which may extend to seven years, and shall also be liable to fine.",
CLASSIFICATION OF OFFENCE Punishment—Imprisonment for 7 years and fine—,
Cognizable—Non-bailable—Triable by Magistrate of the first class—Non-compoundable.,
Section 258. Sale of counterfeit Government stamp,
"Whoever, sells, or offers for sale, any stamp which he knows or has reason to believe to be a",
"counterfeit of any stamp issued by the Government for the purpose of revenue, shall be",
LLaatteessttLLaawwss..ccoomm,
181,
"punished with imprisonment of either description for a term which may extend to seven years,",
and shall also be liable to fine.,
CLASSIFICATION OF OFFENCE Punishment—Imprisonment for 7 years and fine—,
Cognizable—Non-bailable—Triable by Magistrate of the first class—Non-compoundable.,
Section 259. Having possession of,
counterfeit Government stamp,
Whoever has in his possession any stamp which he knows to be a counterfeit of any stamp,
"issued by Government for the purpose of revenue, intending to use, or dispose of the same",
"as a genuine stamp, or in order that it may be used as a genuine stamp, shall be punished",
"with imprisonment of either description for a term which may extend to seven years, and shall",
also be liable to fine.,
CLASSIFICATION OF OFFENCE Punishment—Imprisonment for 7 years and fine—,
Cognizable—Bailable—Triable by Magistrate of the first class—Non-compoundable.,
Section 260. Using as genuine a,
Government stamp known to be a,
counterfeit,
"Whoever uses a s genuine any stamp, knowing it to be counterfeit of any stamp issued by",
"Government for the purpose of revenue, shall be punished with imprisonment of either",
"description for a term which may extend to seven years, or with fine, or with both.",
"CLASSIFICATION OF OFFENCE Punishment—Imprisonment for 7 years, or fine, or both—",
Cognizable—Bailable—Triable by Magistrate of the first class—Non-compoundable.,
"Section 261. Effacing, writing from",
"substance bearing Government stamp, or",
LLaatteessttLLaawwss..ccoomm,
182,
removing from document a stamp used for,
"it, with intent to cause loss to Government",
"Whoever, fraudulently or with intent to cause loss to the Government, removes or effaces from",
"any substance, bearing any stamp issued by Government for the purpose of revenue, any",
"writing or document for which such stamp has been used, or removes from any writing or",
"document a stamp which has been used for such writing or document, in order that such stamp",
"may be used for a different writing or document, shall be punished with imprisonment of either",
"description for a term which may extend to three years, or with fine, or with both.",
"CLASSIFICATION OF OFFENCE Punishment—Imprisonment for 3 years, or fine, or both—",
Cognizable—Bailable—Triable by Magistrate of the first class—Non-compoundable.,
Section 262. Using Government stamp,
known to have been before used,
"Whoever, fraudulently or with intent to cause loss to the Government, uses for any purpose a",
"stamp issued by Government for the purpose of revenue, which he knows to have been before",
"used, shall be punished with imprisonment of either description for a term which may extend",
"to two years, or with fine, or with both.",
"CLASSIFICATION OF OFFENCE Punishment—Imprisonment for 2 years, or fine, or both—",
Cognizable—Bailable—Triable by any Magistrate—Non-compoundable.,
Section 263. Erasure of mark denoting that,
stamp has been used,
"Whoever, fraudulently or with intent to cause loss to Government, erase or removes from a",
"stamp issued by the Government for the purpose of revenue, any mark, put or impressed upon",
"such stamp for the purpose of denoting that the same has been used, or knowingly has in his",
possession or sells or disposes of any such stamp from which such mark has been erased or,
"removed, or sell or disposes of any such stamp which he knows to have been used, shall be",
LLaatteessttLLaawwss..ccoomm,
183,
"punished with imprisonment of either description for a term which may extend to three years,",
"or with fine, or with both.",
"CLASSIFICATION OF OFFENCE Punishment—Imprisonment for 3 years, or fine, or both—",
Cognizable—Bailable—Triable by Magistrate of the first class—Non-compoundable.,
Section 263A. Prohibition of fictitious,
stamps,
"[263A. Prohibition of fictitious stamps.—(1) Whoever— (a) makes, knowingly utters, deals in",
1,
"or sells any fictitious stamps, or knowingly uses for any postal purpose any fictitious stamp, or",
"(b) has in his possession, without lawful excuse, any fictitious stamp, or (c) makes or, without",
"lawful excuse, has in his possession any die, plate, instrument or materials for making any",
"fictitious stamp, shall be punished with fine which may extend to two hundred rupees.",
"(2) Any such stamps, die, plate, instrument or materials in the possession of any person for",
"making any fictitious stamp 2[may be seized and, if seized] shall be forfeited.",
(3) In this section “fictitious stamp” means any stamp falsely purporting to be issued by the,
"Government for the purpose of denoting a rate of postage, or any facsimile or imitation or",
"representation, whether on paper or otherwise, of any stamp issued by Government for that",
purpose.,
"(4) In this section and also in sections 255 to 263, both inclusive, the word “Government”,",
"when used in connection with, or in reference to, any stamp issued for the purpose of denoting",
"a rate of postage, shall, notwithstanding anything in section 17, be deemed to include the",
"person or persons authorized by law to administer executive Government in any part of India,",
and also in any part of Her Majesty’s dominions or in any foreign country.],
CLASSIFICATION OF OFFENCE Punishment—Fine of 200 rupees—Cognizable—,
Bailable—Triable by any Magistrate—Non-compoundable. ————————–,
"1. Ins. by Act 3 of 1895, sec. 2.",
LLaatteessttLLaawwss..ccoomm,
184,
"2. Subs. by Act 42 of 1953, sec. 4 and Sch. III, for “may be seized and” (w.e.f. 23-12-",
1953).,
Section 264. Fraudulent use of false,
instrument for weighing,
"Whoever fraudulently uses any instrument for weighing which he knows to be false, shall be",
"punished with imprisonment or either description for a term which may extend to one year, or",
"with fine, or with both.",
"CLASSIFICATION OF OFFENCE Punishment—Imprisonment for 1 year, or fine, or both—",
Non-cognizable—Bailable—Triable by any Magistrate—Non-compoundable.,
Section 265. Fraudulent use of false weight,
or measure,
"Whoever fraudulently uses any false weight or false measure of length or capacity, or",
fraudulently uses any weight or any measure of length or capacity as different weight or,
"measure form what it is, shall be punished with imprisonment of either description for a term",
"which may extend to one year, or with fine, or with both.",
"CLASSIFICATION OF OFFENCE Punishment—Imprisonment for 1 year, or fine, or both—",
Non-cognizable—Bailable—Triable by any Magistrate—Non-compoundable.,
Section 266. Being in possession of false,
weight or measure,
"Whoever is in possession of any instrument for weighing, or of any weight, or of any measure",
"of length or capacity, which he knows to be false, [* * *] intending that the same may be",
1,
"fraudulently used, shall be punished with imprisonment of either description for a term which",
"may extend to one year, or with fine, or with both.",
"CLASSIFICATION OF OFFENCE Punishment—Imprisonment for 1 year, or fine, or both—",
Non-cognizable—Bailable—Triable by any Magistrate—Non-compoundable. ——————–,
LLaatteessttLLaawwss..ccoomm,
185,
"1. The word “and” omitted by Act 42 of 1953, sec. 4 and Sch. III (w.e.f. 23-12-1953).",
Section 267. Making or selling false weight,
or measure,
"Whoever makes, sells or disposes of any instrument for weighing, or any weight, or any",
"measure of length or capacity which he knows to be false, in order that the same may be used",
"as true, or knowing that the same is likely to be used as true, shall be punished with",
"imprisonment of either description for a term which may extend to one year, or with fine, or",
with both.,
"LASSIFICATION OF OFFENCE Punishment—Imprisonment for 1 year, or fine, or both—",
Cognizable—Non-bailable—Triable by any Magistrate—Non-compoundable.,
Section 268. Public nuisance,
A person is guilty of a public nuisance who does not act or is guilty of an illegal omission which,
"causes any common injury, danger or annoyance to the public or to the people in general who",
"dwell or occupy property in the vicinity, or which must necessarily cause injury, obstruction,",
danger or annoyance to persons who may have occasion to use any public right. A common,
nuisance is not excused on the ground that it causes some convenience or advantage.,
Section 269. Negligent act likely to spread,
infection of disease dangerous to life,
"Whoever unlawfully or negligently does any act which is, and which he knows or has reason",
"to believe to be, likely to spread the infection of any disease dangerous to life, shall be",
"punished with imprisonment of either description for a term which may extend to six month, or",
"with fine, or with both.",
"CLASSIFICATION OF OFFENCE Punishment—Imprisonment for 6 months, or fine, or",
both—Cognizable—Bailable—Triable by any Magistrate—Non-compoundable.,
LLaatteessttLLaawwss..ccoomm,
186,
Section 270. Malignant act likely to spread,
infection of disease dangerous to life,
"Whoever malignantly does any act which is, and which he knows or has reason to believe to",
"be, likely to spread the infection of any disease dangerous to life, shall be punished with",
"imprisonment of either description for a term which may extend to two years, or with fine, or",
with both.,
"CLASSIFICATION OF OFFENCE Punishment—Imprisonment for 2 years, or fine, or both—",
Cognizable—Bailable—Triable by any Magistrate—Non-compoundable.,
Comments HIV infection (i) In a case the petitioner has raised the question whether a person,
suffering from HIV (+) contracting marriage with a willing partner after disclosing the factors of,
disease to that partner will be committing an offence under sections 269 and 270.,
(ii) The court held that there was no need for this cast to go further and declare in general as,
to what rights and obligations arise in such context as to right to privacy or confidentiality or,
whether such persons are entitled to be married or not or in the event such persons marry,
they would commit an offence under law or whether such right is suspended during the period,
"of illness. Therefore, all those observations made by this court in the aforesaid matter were",
"unnecessary, particularly when there was no consideration of the matter after notice to all the",
"parties concerned; Mr. “X” v. Hospital “Z”, AIR 2003 SC 664.",
Section 271. Disobedience to quarantine,
rule,
Whoever knowingly disobeys any rule made and promulgated [by the [* * *] Government [* *,
1 2 3,
"*] for putting any vessel into a state of quarantine, or for regulating the intercourse of vessels",
"in a state of quarantine with the shore or with other vessels, or for regulating the intercourse",
"between places where an infectious disease prevails and other places, shall be punished with",
"imprisonment of either description for a term which may extend to six months, or with fine, or",
with both.,
LLaatteessttLLaawwss..ccoomm,
187,
"CLASSIFICATION OF OFFENCE Punishment—Imprisonment for 6 months, or fine, or",
both—Non-cognizable—Bailable—Triable by any Magistrate—Non-compoundable. ————,
————–,
"1. Subs. by the A.O. 1937, for “by the Government of India or by any Government”.",
2. The words “Central or any Provincial” omitted by the A.O. 1950.,
3. The words “or the Crown Representative” omitted by the A.O. 1948.,
272. Adulteration of food or drink intended,
for sale,
"Whoever adulterates any article of food or drink, so as to make such article noxious as food",
"or drink, intending to sell such article as food or drink, or knowing it to be likely that the same",
"will be sold as food or drink, shall be punished with imprisonment of either description for a",
"term which may extend to six months, or with fine which may extend to one thousand rupees,",
or with both.,
"CLASSIFICATION OF OFFENCE Punishment—Imprisonment for 6 months, or fine of 1,000",
"rupees, or both—Non-Cognizable—Bailable—Triable by any Magistrate—Non-com-",
poundable.,
STATE AMENDMENTS Orissa In section 272 for the words “shall be punished with,
"imprisonment of either description for a term which may extend to six months, or with fine",
"which may extend to one thousand rupees, or with both”, the following shall be substituted,",
namely:— “shall be punished with imprisonment for life and shall also be liable to fine:,
"Provided that the Court may, for adequate and special reasons to be mentioned in the",
"judgment, impose a sentence of imprisonment which is less than imprisonment for life.” [Vide",
"Orissa Act 3 of 1999, sec. 2 (w.e.f. 27-1-1999)].",
Uttar Pradesh In section 272 for the words “shall be punished with imprisonment of either,
"description for a term which may extend to six months, or with fine which may extend to one",
"thousand rupees, or with both” the following shall be substituted, namely:— “shall be punished",
"with imprisonment for life and shall also be liable to fine: Provided that the court may, for",
LLaatteessttLLaawwss..ccoomm,
188,
"adequate reasons to be mentioned in the judgment, impose a sentence of imprisonment which",
"is less than imprisonment for life.” [Vide Uttar Pradesh Act 47 of 1975, sec. 3 (w.e.f. 15-9-",
1975)].,
West Bengal In section 272 for the words “of either description for a term which may extend,
"to six months, or with fine which may extend to one thousand rupees, or with both” the",
"following shall be substituted, namely:— “for life with or without fine: Provided that the Court",
"may, for adequate and special reasons to be mentioned in the judgment, impose a sentence",
"of imprisonment which is less than imprisonment for life.” [Vide West Bengal Act 42 of 1973,",
sec. 3 (w.e.f. 29-4-1973)].,
Section 273. Sale of noxious food or drink,
"Whoever sells, or offers or exposes for sale, as food or drink, any article which has been",
"rendered or has become noxious, or is in a state unfit for food or drink, knowing or having",
"reason to believe that the same is noxious as food or drink, shall be punished with",
"imprisonment of either description for a term which may extend to six months, or with fine",
"which may extend to one thousand rupees, or with both.",
"CLASSIFICATION OF OFFENCE Punishment—Imprisonment for 6 months, or fine of 1,000",
"rupees, or both—Non-cognizable—Bailable—Triable by any Magistrate—Non-com-",
poundable.,
"State Amendments In section 273, State Amendments are the same as under section 272.",
Section 274. Adulteration of drugs,
Whoever adulterates any drug or medical preparation in such a manner as to lessen the,
"efficacy or change the operation of such drug or medical preparation, or to make it noxious,",
"intending that it shall be sold or used for, or knowing it to be likely that it will be sold or used",
"for, any medicinal purpose, as if it had not undergone such adulteration, shall be punished",
"with imprisonment of either description for a term which may extend to six months, or with fine",
"which may extend to one thousand rupees, or with both.",
LLaatteessttLLaawwss..ccoomm,
189,
"CLASSIFICATION OF OFFENCE Punishment—Imprisonment for 6 months, or fine of 1,000",
"rupees, or both—Non-cognizable—Non-Bailable—Triable by any Magistrate—Non-com-",
poundable.,
"State Amendments In section 274, State Amendments are the same as under section 272.",
Section 275. Sale of adulterated drugs,
"Whoever, knowing any drug or medical preparation to have been adulterated in such a manner",
"as to lessen its efficacy, to change its operation, or to render it noxious, sells the same, or",
"offers or exposes it for sale, or issues it from any dispensary for medicinal purposes as",
"unadulterated, or causes it to be used for medicinal purposes by any person not knowing of",
"the adulteration, shall be punished with imprisonment of either description for a term which",
"may extend to six months, or with fine which may extend to one thousand rupees, or with both.",
"CLASSIFICATION OF OFFENCE Punishment—Imprisonment for 6 months, or fine of 1,000",
"rupees, or both—Non-cognizable—Bailable—Triable by any Magistrate—Non-com-",
poundable.,
"State Amendments In section 275, State Amendments are the same as under section 272.",
Section 276. Sale of drug as a different,
drug or preparation,
"Whoever knowingly sells, or offers or exposes for sale, or issues from a dispensary for",
"medicinal purposes, any drug or medical preparation, as a different drug or medical",
"preparation, shall be punished with imprisonment of either description for a term which may",
"extend to six months, or with fine which may extend to one thousand rupees, or with both.",
"CLASSIFICATION OF OFFENCE Punishment—Imprisonment for 6 months, or fine of 1,000",
"rupees, or both—Non-cognizable—Bailable—Triable by any Magistrate—Non-com-",
poundable.,
"State Amendments In section 276, State Amendments are the same as under section 272.",
LLaatteessttLLaawwss..ccoomm,
190,
Section 277. Fouling water of public spring,
or reservoir,
"Whoever voluntarily corrupts or fouls the water of any public spring or reservoir, so as to render",
"it less fit for the purpose for which it is ordinarily used, shall be punished with imprisonment of",
"either description for a term which may extend to three months, or with fine which may extend",
"to five hundred rupees, or with both.",
"CLASSIFICATION OF OFFENCE Punishment—Imprisonment for 3 months, or fine of 500",
"rupees, or both—Cognizable—Bailable—Triable by any Magistrate—Non-compoundable.",
Section 278. Making atmosphere noxious,
to health,
Whoever voluntarily vitiates the atmosphere in any place so as to make it noxious to the health,
of persons in general dwelling or carrying on business in the neighborhood or passing along,
"a public way, shall be punished with fine which may extend to five hundred rupees.",
CLASSIFICATION OF OFFENCE Punishment—Fine of 500 rupees—Cognizable—,
Bailable—Triable by any Magistrate—Non-compoundable.,
Section 279. Rash driving or riding on a,
public way,
"Whoever drives any vehicle, or rides, on any public way in a manner so rash or negligent as",
"to endanger human life, or to be likely to cause hurt or injury to any other person, shall be",
"punished with imprisonment of either description for a term which may extend to six months,",
"or with fine which may extend to one thousand rupees, or with both.",
"CLASSIFICATION OF OFFENCE Punishment—Imprisonment for 6 months, or fine of 1,000",
"rupees, or both—Cognizable—Bailable—Triable by any Magistrate—Non-compoundable.",
LLaatteessttLLaawwss..ccoomm,
191,
Section 279. Rash driving or riding on a,
public way,
"Whoever drives any vehicle, or rides, on any public way in a manner so rash or negligent as",
"to endanger human life, or to be likely to cause hurt or injury to any other person, shall be",
"punished with imprisonment of either description for a term which may extend to six months,",
"or with fine which may extend to one thousand rupees, or with both.",
"CLASSIFICATION OF OFFENCE Punishment—Imprisonment for 6 months, or fine of 1,000",
"rupees, or both—Cognizable—Bailable—Triable by any Magistrate—Non-compoundable.",
Section 280. Rash navigation of vessel,
"Whoever navigates any vessel in a manner so rash or negligent as to endanger human life,",
"or to be likely to cause hurt or injury to any other person, shall be punished with imprisonment",
"of either description for a term which may extend to six months, or with fine which may extend",
"to one thousand rupees, or with both.",
"CLASSIFICATION OF OFFENCE Punishment—Imprisonment for 6 months, or fine of 1,000",
"rupees, or both—Cognizable—Bailable—Triable by any Magistrate—Non-compoundable.",
"Section 281. Exhibition of false light, mark",
or buoy,
"Whoever exhibits any false light, mark or buoy, intending or knowing it to be likely that such",
"exhibition will mislead any navigator, shall be punished with imprisonment of either description",
"for a term which may extend to seven years, or with fine, or with both.",
"CLASSIFICATION OF OFFENCE Punishment—Imprisonment for 7 years, or fine, or both—",
Cognizable—Bailable—Triable by Magistrate of the first class—Non-compoundable.,
Section 282. Conveying person by water,
for hire in unsafe or overloaded vessel,
LLaatteessttLLaawwss..ccoomm,
192,
"Whoever knowingly or negligently conveys, or causes to be conveyed for hire, any person by",
"water in any vessel, when that vessel is in such a state or so loaded as to endanger the life of",
"that person , shall be punished with imprisonment or either description for a term which may",
"extend to six months, or with fine which may extend to one thousand rupees, or with both.",
"CLASSIFICATION OF OFFENCE Punishment—Imprisonment for 6 months, or fine of 1,000",
"rupees, or both—Cognizable—Bailable—Triable by any Magistrate—Non-compoundable.",
Section 283. Danger or obstruction in,
public way or line of navigation,
"Whoever, by doing any act, or by omitting to take order with any property in his possession or",
"under his charge, causes danger, obstruction or injury to any person in any public way or",
"public line of navigation, shall be punished with fine which may extend to two hundred rupees.",
CLASSIFICATION OF OFFENCE Punishment—Fine of 200 rupees—Cognizable—,
Bailable—Triable by any Magistrate—Non-compoundable.,
Section 284. Negligent conduct with,
respect to poisonous substance,
"Whoever does, with any poisonous substance, any act in a manner so rash or negligent as to",
"endanger human life, or to be likely to cause hurt or injury to any person, or knowingly or",
negligently omits to take such order with any poisonous substance in his possession as is,
"sufficient to guard against any probable danger to human life from such poisonous substance,",
shall be punished with imprisonment of either description for a term which may extend to six,
"months, or with fine which may extend to one thousand rupees, or with both.",
"CLASSIFICATION OF OFFENCE Punishment—Imprisonment for 6 months, or fine of 1,000",
"rupees, or both—Cognizable—Bailable—Triable by any Magistrate—Non-compoundable.",
LLaatteessttLLaawwss..ccoomm,
193,
Section 285. Negligent conduct with,
respect to fire or combustible matter,
"Whoever does, with fire or any combustible matter, any act so rashly or negligently as to",
"endanger human life, or to be likely to cause hurt or injury to any other person, or knowingly",
or negligently omits to take such order with any fire or any combustible matter in his,
possession as is sufficient to guard against any probable danger to human life from such fire,
"or combustible matter, shall be punished with imprisonment of either description for a term",
"which may extend to six months, or with fine which may extend to one thousand rupees, or",
with both.,
"CLASSIFICATION OF OFFENCE Punishment—Imprisonment for 6 months, or fine of 1,000",
"rupees, or both—Cognizable—Bailable—Triable by any Magistrate—Non-compoundable.",
Section 286. Negligent conduct with,
respect to explosive substance,
"Whoever does, with any explosive substance, any act so rashly or negligently as to endanger",
"human life, or to be likely to cause hurt or injury to any other person, or knowingly or negligently",
omits to take such order with any explosive substance in his possession as is sufficient to,
"guard against any probable danger to human life from that substance, shall be punished with",
"imprisonment of either description for a term which may extend to six months, or with fine",
"which may extend to one thousand rupees, or with both.",
"CLASSIFICATION OF OFFENCE Punishment—Imprisonment for 6 months, or fine of 1,000",
"rupees, or both—Cognizable—Bailable—Triable by any Magistrate—Non-compoundable.",
Section 287. Negligent conduct with,
respect to machinery,
"Whoever does, with any machinery, any act so rashly or negligently as to endanger human",
"life or to be likely to cause hurt or injury to any other person, or knowingly or negligently omits",
LLaatteessttLLaawwss..ccoomm,
194,
to take such order with any machinery in his possession or under his care as is sufficient to,
"guard against any probable danger to human life from such machinery, shall be punished with",
"imprisonment of either description for a term which may extend to six months, or with fine",
"which may extend to one thousand rupees, or with both.",
"CLASSIFICATION OF OFFENCE Punishment—Imprisonment for 6 months, or fine of 1,000",
"rupees, or both—Non-cognizable—Bailable—Triable by any Magistrate—Non-",
compoundable.,
Section 288. Negligent conduct with,
respect to pulling down or repairing,
buildings,
"Whoever, in pulling down or repairing any building, knowingly or negligently omits to take such",
order with that building as is sufficient to guard against any probable danger to human life from,
"the fall of that building, or of any part thereof, shall be punished with imprisonment of either",
"description for a term which may extend to six months, or with fine which may extend to one",
"thousand rupees, or with both.",
"CLASSIFICATION OF OFFENCE Punishment—Imprisonment for 6 months, or fine of 1,000",
"rupees, or both—Non-cognizable—Bailable—Triable by any Magistrate—Non-compoundable",
Section 289. Negligent conduct with,
respect to animal,
Whoever knowingly or negligently omits to take such order with any animal in his possession,
"as is sufficient to guard against any probable danger to human life, or any probable danger of",
"grievous hurt from such animal, shall be punished with imprisonment of either description for",
"a term which may extend to six months, or with fine which may extend to one thousand rupees,",
or with both.,
LLaatteessttLLaawwss..ccoomm,
195,
"CLASSIFICATION OF OFFENCE Punishment—Imprisonment for 6 months, or fine of 1,000",
"rupees, or both—Cognizable—Bailable—Triable by any Magistrate—Non-compoundable.",
Section 290. Punishment for public,
nuisance in cases not otherwise provided,
for,
"Whoever commits a public nuisance in any case not otherwise punishable by this Code, shall",
be punished with fine which may extend to two hundred rupees.,
CLASSIFICATION OF OFFENCE Punishment—Fine of 200 rupees—Non-cognizable—,
Bailable—Triable by any Magistrate—Non-compoundable.,
Section 291. Continuance of nuisance after,
injunction to discontinue,
"Whoever repeats or continues a public nuisance, having been enjoined by any public servant",
"who has lawful authority to issue such injunction not to repeat or continue such nuisance, shall",
"be punished with simple imprisonment for a term which may extend to six months, or with fine,",
or with both.,
"CLASSIFICATION OF OFFENCE Punishment—Simple imprisonment for 6 months, or fine,",
or both—Cognizable-Bailable—Triable by any Magistrate—Non-compoundable.,
"Section 292. Sale, etc., or obscene books,",
etc,
"[292. Sale, etc., of obscene books, etc.— [(1) For the purposes of sub-section (2), a book,",
1 2,
"pamphlet, paper, writing, drawing, painting, representation, figure or any other object, shall be",
"deemed to be obscene if it is lascivious or appeals to the prurient interest or if its effect, or",
"(where it comprises two or more distinct items) the effect of any one of its items, is, if taken as",
LLaatteessttLLaawwss..ccoomm,
196,
"a whole, such as to tend to deprave and corrupt person, who are likely, having regard to all",
"relevant circumstances, to read, see or hear the matter contained or embodied in it.]",
3,
"[(2)] Whoever— (a) sells, lets to hire, distributes, publicly exhibits or in any manner puts into",
"circulation, or for purposes of sale, hire, distribution, public exhibition or circulation, makes,",
"produces or has in his possession any obscene book, pamphlet, paper, drawing, painting,",
"representation or figure or any other obscene object whatsoever, or",
"(b) imports, exports or conveys any obscene object for any of the purposes aforesaid, or",
"knowing or having reason to believe that such object will be sold, let to hire, distributed or",
"publicly exhibited or in any manner put into circulation, or",
(c) takes part in or receives profits from any business in the course of which he knows or has,
"reason to believe that any such obscene objects are for any of the purposes aforesaid, made,",
"produced, purchased, kept, imported, exported, conveyed, publicly exhibited or in any manner",
"put into circulation, or",
(d) advertises or makes known by any means whatsoever that any person is engaged or is,
"ready to engage in any act which is an offence under this section, or that any such obscene",
"object can be procured from or through any person, or",
"(e) offers or attempts to do any act which is an offence under this section, shall be",
punished [on first conviction with imprisonment of either description for a term which may,
4,
"extend to two years, and with fine which may extend to two thousand rupees, and, in the event",
"of a second or subsequent conviction, with imprisonment of either description for a term which",
"may extend to five years, and also with fine which may extend to five thousand rupees].",
"[Exception.—This section does not extend to— (a) any book, pamphlet, paper, writing,",
5,
"drawing, painting, representation or figure— (i) the publication of which is proved to be justified",
"as being for the public good on the ground that such book, pamphlet, paper, writing, drawing,",
"painting, representation or figure is in the interest of science, literature, art or learning or other",
"objects of general concern, or (ii) which is kept or used bona fide for religious purposes;",
LLaatteessttLLaawwss..ccoomm,
197,
"(b) any representation sculptured, engraved, painted or otherwise represented on or in— (i)",
any ancient monument within the meaning of the Ancient Monuments and Archaeological,
"Sites and Remains Act, 1958 (24 of 1958), or (ii) any temple, or on any car used for the",
"conveyance of idols, or kept or used for any religious purpose.]]",
"CLASSIFICATION OF OFFENCE Punishment—On first conviction, with imprisonment for",
"2 years, and with fine of 2,000 rupees, and, in the event of second of subsequent conviction,",
"with imprisonment for five years and with fine of 5,000 rupees—Cognizable—Bailable—",
Triable by any Magistrate—Non-compoundable.,
"STATE AMENDMENTS Orissa Same as in Tamil Nadu. [Vide Orissa Act 13 of 1962, sec. 2",
(w.e.f. 16-5-1962)].,
"Tamil Nadu In section 292, for the words “shall be punished with imprisonment of either",
description for a term which may extend to three months or with fine or with both” substitute,
"the following, namely:— “shall be punished with imprisonment of either description for a term",
which may extend to two years or with fine or with both: Provided that for a second or any,
"subsequent offence under this section, he shall be punished with imprisonment of either de-",
scription for a term which shall not be less than six months and not more than two years and,
"with fine. [Vide Tamil Nadu Act 25 of 1960, sec. 2 (w.e.f. 9-11-1960)].",
"Orissa Section 292A Same as in Tamil Nadu. [Vide Orissa Act 13 of 1962, sec. 3 (w.e.f. 16-",
5-1962)].,
"Tamil Nadu After section 292, insert the following new section namely:— 292A. Printing, etc.,",
"of grossly indecent or scurrilous matter or matter intended for blackmail.—Whoever,— (a)",
"prints or causes to be printed in any newspaper, periodical or circular, or exhibits or causes to",
"be exhibited, to public view or distributes or causes to be distributed or in any manner puts",
"into circulation any picture or any printed or written document which is grossly indecent, or in",
scurrilous or intended for blackmail; or,
"(b) sells or lets for hire, or for purposes of sale or hire makes, produces or has in his",
"possession, any picture or any printed or written document which is grossly indecent or is",
scurrilous or intended for blackmail; or,
LLaatteessttLLaawwss..ccoomm,
198,
(c) conveys any picture or any printed or written document which is grossly indecent or is,
scurrilous or intended for blackmail knowing or having reason to believe that such picture or,
"document will be printed, sold, let for hire distributed or publicly exhibited or in any manner put",
into circulation; or,
"(d) takes part in, or receives profits from, any business in the course of which he knows or has",
"reason to believe that any such newspaper, periodical, circular, picture or other printed or",
"written document is printed, exhibited, distributed, circulated, sold, let for hire, made,",
"produced, kept, conveyed or purchased; or",
(e) advertises or makes known by any means whatsoever that any person is engaged or is,
"ready to engage in any Act which is an offence under this section, or that any such newspaper,",
"periodical, circular, picture or other printed or written document which is grossly indecent or is",
"scurrilous or intended for blackmail, can be procured from or through any person; or",
(f) offers or attempts to do any act which is an offence under this section *[shall be punished,
"with imprisonment of either description for a term which may extend to two years, or with fine,",
"or with both]: Provided that for a second or any subsequent offence under this section, he",
shall be punished with imprisonment of either description for a term which shall not be less,
than six months **[and not more than two years].,
"Explanation I For the purposes of this section, the word scurrilous shall be deemed to include",
any matter which is likely to be injurious to morality or is calculated to injure any person:,
Provided that it is not scurrilous to express in good faith anything whatever respecting the,
conduct of—,
(i) a public servant in the discharge of his public functions or respecting his character so far,
as his character appears in that conduct and no further; or,
"(ii) any person touching any public question, and respecting his character, so far as his",
character appears in that conduct and no further.,
LLaatteessttLLaawwss..ccoomm,
199,
"Explanation II In deciding whether any person has committed an offence under this section,",
"the court shall have regard inter alia, to the following considerations— (",
"a) The general character of the person charged, and where relevant the nature of his business;",
(b) the general character and dominant effect of the matter alleged to be grossly indecent or,
scurrilous or intended for blackmail;,
(c) any evidence offered or called by or on behalf of the accused person as to his intention in,
"committing any of the acts specified in this section. [Vide Tamil Nadu Act 25 of 1960, sec. 3",
(w.e.f. 9-11-1960)]. * Subs. by Tamil Nadu Act 30 of 1984. ** Ins. by Tamil Nadu Act 30 of,
"1984, sec. 2 (w.e.f. 28-6-1984).———————–",
"1. Subs. by Act 8 of 1925, sec. 2, for the original section.",
"2. Ins. by Act 36 of 1969, sec. 2 (w.e.f. 7-9-1969).",
"3. Section 292 renumbered as sub-section (2) thereof by Act 36 of 1969, sec. 2 (w.e.f. 7-",
9-1969).,
"4. Subs. by Act 36 of 1969, sec. 2, for certain words (w.e.f. 7-9-1969).",
"5. Subs. by Act 36 of 1969, sec. 2, for Exception (w.e.f. 7-9-1969).",
"Section 293. Sale, etc., of obscene objects",
to young person,
"[293. Sale, etc., of obscene objects to young person.—Whoever sells, lets to hire, distributes,",
1,
exhibits or circulates to any person under the age of twenty years any such obscene object as,
"is referred to in the last preceding section, or offers or attempts so to do, shall be punished [on",
2,
first conviction with imprisonment of either description for a term which may extend to three,
"years, and with fine which may extend to two thousand rupees, and, in the event of a second",
"or subsequent conviction, with imprisonment of either description for a term which may extend",
"to seven years, and also with fine which may extend to five thousand rupees].]",
"CLASSIFICATION OF OFFENCE Punishment—On first conviction, with imprisonment for",
"3 years, and with fine of 2,000 rupees, and, in the event of second of subsequent conviction,",
LLaatteessttLLaawwss..ccoomm,
200,
"with imprisonment for 7 years, and with fine of 5,000 rupees—Cognizable—Bailable—Triable",
by any Magistrate—Non-compoundable.,
"STATE AMENDMENTS Orissa Same as in Tamil Nadu. [Vide Orissa Act 13 of 1962, sec. 4",
(w.e.f. 16-5-1962)].,
"Tamil Nadu In Section 293,— (a) for the words “any such obscene object as is referred to in",
"the last preceding section” the words, figures and letter “any such obscene object as is referred",
"to in section 292 or any such newspaper, periodical, circular, picture or other printed or written",
document as is referred to in section 292-A” shall be substituted; (b) for the words “which may,
extend to six months” the words “which may extend to three years” shall be substituted; (c) in,
"the marginal note, after the words “obscene objects” the words “any grossly indecent or",
"scurrilous matter intended for blackmail shall be inserted.” [Vide Tamil Nadu Act 25 of 1960,",
sec. 4 (w.e.f. 9-11-1960)]. ———————-,
"1. Subs. by Act 8 of 1925, sec. 2, for the original section.",
"2. Subs. by Act 36 of 1969, sec. 2, for certain words (w.e.f. 7-9-1969).",
Section 294. Obscene acts and songs,
"[294. Obscene acts and songs.—Whoever, to the annoyance of others—",
1,
"(a) does any obscene act in any public place, or",
"(b) sings, recites or utters any obscene song, ballad or words, in or near any public place,",
shall be punished with imprisonment of either description for a term which may extend to three,
"months, or with fine, or with both.]",
"CLASSIFICATION OF OFFENCE Punishment—Imprisonment for 3 months, or fine, or",
both—Cognizable—Bailable—Triable by any Magistrate—Non-compoundable. ——————,
———,
"1. Subs. by Act 3 of 1895, sec. 3, for the original section.",
Section 294A. Keeping lottery office,
LLaatteessttLLaawwss..ccoomm,
201,
[294A. Keeping lottery office.—Whoever keeps any office or place for the purpose of drawing,
1,
"any lottery[not being [a State lottery] or a lottery authorised by the [State] Government], shall",
2 3 4,
be punished with imprisonment of either description for a term which may extend to six,
"months, or with fine, or with both. And whoever publishes any proposal to pay any sum, or to",
"deliver any goods, or to do or forbear doing anything for the benefit of any person, on any",
"event or contingency relative or applicable to the drawing of any ticket, lot, number or figure",
"in any such lottery, shall be punished with fine which may extend to one thousand rupees.]",
CLASSIFICATION OF OFFENCE,
"Para I Punishment—Imprisonment for 6 months, or fine, or both—Non-cognizable—",
Bailable—Triable by any Magistrate—Non-compoundable.,
"Para II Punishment—Fine of 1,000 rupees—Non-Cognizable—Bailable—Triable by any",
Magistrate—Non-compoundable.,
STATE AMENDMENTS Andhra Pradesh Section 294A is repealed. [Vide Andhra Pradesh,
"Act 16 of 1968, sec. 27 (w.e.f. 1-2-1969)]. Gujarat Section 294A is repealed. [Vide Bombay",
"Act 82 of 1958, sec. 33 read with Bombay Act 11 of 1960, sec. 87]. Karnataka In Karnataka",
"area except Ballary District, section 294A is repealed. [Vide Mysore Act 27 of 1957, sec.",
"33]. Maharashtra Section 294A is repealed. [Vide Bombay Act 82 of 1958, sec. 33 (w.e.f. 1-",
"5-1959)] Manipur Section 294A is repealed. [Vide Manipur Act 2 of 1992, sec. 30 (w.e.f. 6-8-",
"1992)]. Uttar Pradesh Section 294A Omitted. [Vide Uttar Pradesh Act 24 of 1995, sec. 11]. —",
————————-,
"1. Ins. by Act 27 of 1870, sec. 10.",
"2. Subs. by the A.O. 1937, for “not authorised by Government”.",
"3. Subs. by Act 3 of 1951, sec. 3 and Sch., for “a lottery organised by the Central",
Government or the Government of a Part A State or a Part B State”.,
"4. Subs. by the A.O. 1950, for “Provincial”.",
LLaatteessttLLaawwss..ccoomm,
202,
Section 295. Injuring or defiling place of,
worship with intent to insult the religion of,
any class,
"Whoever destroys, damages or defiles any place of worship, or any object held sacred by any",
class of persons with the intention of thereby insulting the religion of any class of persons or,
"with the knowledge that any class of persons is likely to consider such destruction, damage or",
"defilement as a insult to their religion, shall be punished with imprisonment of either description",
"for a term which may extend to two years, or with fine, or with both.",
"CLASSIFICATION OF OFFENCE Punishment—Imprisonment for 2 years, or fine, or both—",
Cognizable—Non-bailable—Triable by any Magistrate—Non-compoundable.,
Section 295A. Deliberate and malicious,
"acts, intended to outrage religious feelings",
or any class by insulting its religion or,
religious beliefs,
"[295A. Deliberate and malicious acts, intended to outrage religious feelings or any class by",
1,
"insulting its religion or religious beliefs.— Whoever, with deliberate and malicious intention of",
"outraging the religious feelings of any class of [citizens of India], [by words, either spoken or",
2 3,
"written, or by signs or by visible representations or otherwise], insults or attempts to insult the",
"religion or the religious beliefs of that class, shall be punished with imprisonment of either",
"description for a term which may extend to [three years], or with fine, or with both.]",
4,
"CLASSIFICATION OF OFFENCE Punishment—Imprisonment for 3 years, or fine, or both—",
Cognizable—Non-bailable—Triable by Magistrate of the first class—Non-compoundable. —,
———————,
"1. Ins. by Act 25 of 1927, sec. 2.",
"2. Subs. by the A.O. 1950, for “His Majesty’s subjects”.",
"3. Subs. by Act 41 of 1961, sec. 3, for certain words (w.e.f. 27-9-1961).",
LLaatteessttLLaawwss..ccoomm,
203,
"4. Subs. by Act 41 of 1961, sec. 3, for “two years” (w.e.f. 27-9-1961).",
Section 296. Disturbing religious assembly,
Whoever voluntarily causes disturbance to any assembly lawfully engaged in the performance,
"of religious worship, or religious ceremonies, shall be punished with imprisonment of either",
"description for a term which may extend to one year, or with fine, or with both.",
"CLASSIFICATION OF OFFENCE Punishment—Imprisonment for 1 year, or fine, or both—",
Cognizable—Bailable—Triable by any Magistrate—Non-compoundable.,
"Section 297. Trespassing on burial places,",
etc.,
"Whoever, with the intention of wounding the feelings of any person, or of insulting the religion",
"of any person, or with the knowledge that the feelings of any person are likely to be wounded,",
"or that the religion or any person is likely to be insulted thereby, commits any trespass in any",
"place of worship or on any place of sepulture, or any place set apart from the performance of",
"funeral rites or as a depository for the remains of the dead, or offers any indignity to any human",
"corpse, or causes disturbance to any persons assembled for the performance of funeral",
"ceremonies, shall be punished with imprisonment of either description for a term which may",
"extend to one year, or with fine, or with both.",
"CLASSIFICATION OF OFFENCE Punishment—Imprisonment for 1 year, or fine, or both—",
Cognizable—Bailable—Triable by any Magistrate—Non-compoundable.,
"Section 298. Uttering, words, etc., with",
deliberate intent to wound the religious,
feelings of any person,
"Whoever, with the deliberate intention of wounding the religious feelings of any person, utters",
any word or makes any sound in the hearing of that person or makes any gesture in the sight,
"of that person or places any object in the sight of that person, shall be punished with",
LLaatteessttLLaawwss..ccoomm,
204,
"imprisonment of either description for a term which may extend to one year, or with fine, or",
with both.,
"CLASSIFICATION OF OFFENCE Punishment—Imprisonment for 1 year, or fine, or both—",
Non-cognizable—Bailable—Triable by any Magistrate—Compounded by the person whose,
religious feelings are intended to be wounded.,
State Amendment Andhra Pradesh In Andhra Pradesh offence under section 298 is,
"cognizable. [Vide A.P.G.O. Ms. No. 732, dated 5th December, 1991].",
Section 299. Culpable homicide,
"Who ever causes death by doing an act with the intention of causing death, or with the intention",
"of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely",
"by such act to cause death, commits the offence of culpable homicide.",
"Illustrations (a) A lays sticks and turf over a pit, with the intention of there by causing death,",
or with the knowledge that death is likely to be thereby caused. Z believing the ground to be,
"firm, treads on it, falls in and is killed. A has committed the offence of culpable homicide.",
"(b) A knows Z to be behind a bush. B does not know it A, intending to cause, or knowing it to",
"be likely to cause Z’s death, induces B fires and kills Z. Here B may be guilty of no offence;",
but A has committed the offence of culpable homicide.,
"(c) A, by shooting at a fowl with intent to kill and steal it, kills B who is behind a bush; A not",
"knowing that he was there. Here, although A was doing an unlawful act, he was not guilty of",
"culpable homicide, as he did not intend to kill B, or to cause death by doing an act that he",
knew was likely to cause death.,
"Explanation 1 A person who causes bodily injury to another who is labouring under a disorder,",
"disease or bodily infirmity, and thereby accelerates the death of that other, shall be deemed",
to have caused his death.,
LLaatteessttLLaawwss..ccoomm,
205,
"Explanation 2 Where death is caused by bodily injury, the person who causes such bodily",
"injury shall be deemed to have caused the death, although by resorting to proper remedies",
and skilful treatment the death might have been prevented.,
Explanation 3 The causing of the death of child in the mother’s womb is not homicide. But it,
"may amount to culpable homicide to cause the death of a living child, if any part of that child",
"has been brought forth, though the child may not have breathed or been completely born.",
"COMMENTS Death caused of person other than intended The accused, with the intention of",
"killing A or whose life he had taken out considerable insurance without latter’s knowledge, in",
order to obtain the insured amount gave him some sweets mixed with a well known poison,
like arsenic. The intended victim ate some of the sweets and threw the rest away which were,
picked up by two children who ate them and died of poisoning. It was held that the accused,
was liable for the murder of the children though he intended only to kill A; Public Prosecutor,
"v. Mushunooru Suryanarayana Moorty, (1942) 2 MWN 136: (1912) 13 Cr LJ 145.",
"Murder distinguished from culpable homicide “Culpable homicide” is genus, and “murder” is",
the specie. All “murder” are culpable homicide but not vice-versa; Narasingh Challan v. State,
"of Orissa, (1997) 2 Crimes 78 (Ori).",
Presumption regarding intention or knowledge The accused struck his wife a violent blow on,
the head with the plougshare which rendered her unconscious and hanged his wife soon,
afterwards under the impression that she was already dead intending to create false evidence,
as to the cause of the death and to conceal his own crime. It was held that the intention of the,
"accused must be judged not in the light of the actual circumstances, but in the light of what he",
"supposed to be the circumstances. Hence, the accused cannot be convicted either of murder",
"or culpable homicide, he could of course be punished both for his original assault on his wife",
"and for his attempt to create fake evidence by hanging her; Palani Gaindan v. Emperor, (1919)",
42 Mad 547.,
LLaatteessttLLaawwss..ccoomm,
206,
Provocation caused by act The assault for murder cannot be said to be sudden and without,
meditation as the deceased was not armed; State of Maharashtra v. Krishna Murti Lazmipatti,
"Naidu, AIR 1981 SC 617: (1981) SC Cr R 398: (1981) Cr LJ 9: (1981) SCC (Cr) 354.",
Section 300. Murder,
"Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the",
"death is caused is done with the intention of causing death, or—",
Secondly.—If it is done with the intention of causing such bodily injury as the offender knows,
"to be likely to cause the death of the person to whom the harm is caused, or—",
Thirdly.—If it is done with the intention of causing bodily injury to any person and the bodily,
"injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or—",
Fourthly.—If the person committing the act knows that it is so imminently dangerous that it,
"must, in all probability, cause death or such bodily injury as is likely to cause death, and",
commits such act without any excuse for incurring the risk of causing death or such injury as,
aforesaid.,
Illustrations (a) A shoots Z with the intention of killing him. Z dies in consequence. A commits,
murder.,
"(b) A, knowing that Z is labouring under such a disease that a blow is likely to cause his death,",
strikes him with the intention of causing bodily injury. Z dies in consequence of the blow. A is,
"guilty of murder, although the blow might not have been sufficient in the ordinary course of",
"nature to cause the death of a person in a sound state of health. But if A, not knowing that Z",
"is labouring under any disease, gives him such a blow as would not in the ordinary course of",
"nature kill a person in a sound state of health, here A, although he may intend to cause bodily",
"injury, is not guilty of murder, if he did not intend to cause death, or such bodily injury as in the",
ordinary course of nature would cause death.,
LLaatteessttLLaawwss..ccoomm,
207,
(c) A intentionally gives Z a sword-cut or club-wound sufficient to cause the death of a man in,
"the ordinary course of nature. Z dies in consequence. Here, A is guilty of murder, although he",
may not have intended to cause Z’s death.,
(d) A without any excuse fires a loaded cannon into a crowd of persons and kills one of them.,
"A is guilty of murder, although he may not have had a premeditated design to kill any particular",
individual.,
Exception 1.—When culpable homicide is not murder.—Culpable homicide is not murder if,
"the offender, whilst deprived of the power of self-control by grave and sudden provocation,",
causes the death of the person who gave the provocation or causes the death of any other,
person by mistake or accident.,
The above exception is subject to the following provisos:—,
First.—That the provocation is not sought or voluntarily provoked by the offender as an excuse,
for killing or doing harm to any person.,
"Secondly.—That the provocation is not given by anything done in obedience to the law, or by",
a public servant in the lawful exercise of the powers of such public servant.,
Thirdly.—That the provocation is not given by anything done in the lawful exercise of the right,
of private defence. Explanation Whether the provocation was grave and sudden enough to,
prevent the offence from amounting to murder is a question of fact.,
"Illustrations (a) A, under the influence of passion excited by a provocation given by Z,",
"intentionally kills. Y, Z’s child. This is murder, in as much as the provocation was not given by",
"the child, and the death of the child was not caused by accident or misfortune in doing an act",
caused by the provocation.,
"(b) Y gives grave and sudden provocation to A. A, on this provocation, fires a pistol at Y,",
"neither intending nor knowing himself to be likely to kill Z, who is near him, but out of sight. A",
"kills Z. Here A has not committed murder, but merely culpable homicide.",
LLaatteessttLLaawwss..ccoomm,
208,
"(c) A is lawfully arrested by Z, a bailiff. A is excited to sudden and violent passion by the arrest,",
"and kills Z. This is murder, in as much as the provocation was given by a thing done by a",
public servant in the exercise of his powers.,
"(d) A appears as witness before Z, a Magistrate, Z says that he does not believe a word of A’s",
"deposition, and that A has perjured himself. A is moved to sudden passion by these words,",
and kills Z. This is murder.,
"(e) A attempts to pull Z’s nose, Z, in the exercise of the right of private defence, lays hold of A",
"to prevent him from doing so. A is moved to sudden and violent passion in consequence, and",
"kills Z. This is murder, in as much as the provocation was given by a thing done in the exercise",
of the right of private defence.,
"(f) Z strikes B. B is by this provocation excited to violent rage. A, a bystander, intending to take",
"advantage of B’s rage, and to cause him to kill Z, puts a knife into B’s hand for that purpose.",
"B kills Z with the knife. Here B may have committed only culpable homicide, but A is guilty of",
murder.,
"Exception 2.—Culpable homicide is not murder if the offender, in the exercise in good faith of",
"the right of private defence of person or property, exceeds the power given to him by law and",
causes the death of the person against whom he is exercising such right of defence without,
"premeditation, and without any intention of doing more harm than is necessary for the purpose",
of such defence.,
"Illustration Z attempts to horsewhip A, not in such a manner as to cause grievous hurt to A.",
A draws out a pistol. Z persists in the assault. A believing in good faith that he can by no other,
"means prevent himself from being horsewhipped, shoots Z dead. A has not committed murder,",
but only culpable homicide.,
"Exception 3.—Culpable homicide is not murder if the offender, being a public servant or aiding",
"a public servant acting for the advancement of public justice, exceeds the powers given to him",
"by law, and causes death by doing an act which he, in good faith, believes to be lawful and",
LLaatteessttLLaawwss..ccoomm,
209,
necessary for the due discharge of his duty as such public servant and without ill-will towards,
the person whose death is caused.,
Exception 4.—Culpable homicide is not murder if it is committed without premeditation in a,
sudden fight in the heat of passion upon a sudden quarrel and without the offender having,
taken undue advantage or acted in a cruel or unusual manner. Explanation It is immaterial in,
such cases which party offers the provocation or commits the first assault.,
"Exception 5.—Culpable homicide is not murder when the person whose death is caused,",
"being above the age of eighteen years, suffers death or takes the risk of death with his own",
consent.,
"Illustration A, by instigation, voluntarily causes, Z, a person under eighteen years of age to",
"commit suicide. Here, on account of Z’s youth, he was incapable of giving consent to his own",
death; A has therefore abetted murder.,
"Comments Act by which the death is caused, to done with intention of cuasing death (i)",
"Statement by a child witness who was son of deceased, that his father tied hands and legs of",
his mother and burnt her cannot be discarded on the basis of stray statement in cross-,
examination where he has stated that when his mother caught fire he was in his grand,
"mother’s house, is fairly reliable on the factum of the incident and the same cannot be",
"discarded, held accused was liable to be convicted; State of Karnataka v. Shariff, AIR 2003",
SC 1074.,
(ii) Where the extra judicial confession made by the accused admitting the crime of throwing,
his three minor children into a well was proved and dead bodies of children were also,
"recovered from well, the accused is liable for offence of murder punishable under section 302;",
"Narayana Swamy v. State of Karnataka, 2000 Cr LJ 262 (Kant).",
(iii) The establishment of the involvement of the accused in the incident and misgiving of a,
Barchhi blow to the grandson of the deceased when he tried to go to the rescue of his grand-,
LLaatteessttLLaawwss..ccoomm,
210,
"father, is sufficient to convict the accused under section 300 read with section 34; Banta Singh",
"v. State of Punjab, (1991) Cr LJ 1342 (SC).",
(iv) The totality of the injuries caused to the victim clearly supports the finding of both the,
courts below that the accused/appellants went on belabouring the deceased till he died on the,
"spot. In the circumstances, the contention that the accused did not intend to cause the murder",
"of the deceased cannot be upheld by the Supreme Court; Prabhu v. State of Madhya Pradesh,",
(1991) Cr LJ 1373 (1373-1374) (SC).,
"(v) Where the accused set fire to the single room hut, in which the deceased was sleeping,",
after locking the door of the room from outside and also prevented the villagers from going to,
"the rescue of the helpless inmate of the room, it was held that the intention of the accused to",
kill the deceased was clear and they were liable for murder; Rawalpenta Venkalu,
"171. State of Hyderabad, AIR 1956 SC 171.",
‘And commits such act without any excuse for incurring the risk of causing death’ Merely,
"causing death, by doing an act with the knowledge that is so imminently dangerous that it",
"must, in all probability cause death, is not murder. In order that an act, done with such",
"knowledge, should constitute murder, it is necessary that it should be committed without any",
"excuse for incurring the risk of causing the death or bodily injury. An act, done with the",
"knowledge of its consequences, is not prima facie murder, it becomes murder only if it can be",
positively affirmed that there was no excuse. The requirements of the section are not satisfied,
"by the act of homicide being one of extreme recklessness. It must, in addition, be wholly in",
inexcusable. When a risk in incurred even a risk of the gravest possible character which must,
"normally result in death, the taking of that risk is not murder unless it was inexcuatble to take",
"it; Emperor v. Dhirajia, AIR 1940 All 486; Gyarsibai w/o Jagannath v. State, AIR 1953 MB 61.",
Clause ‘thirdly’ of section 300 distinguished from the second clause of section 299 The,
difference between the second clause of section 299 and clause ‘thirdly’ of section 300 to one,
of degree of probability of death resulting from the intended bodily injury. To put it more,
"broadly, it is the degree of probability of death which determines whether a culpable homicide",
LLaatteessttLLaawwss..ccoomm,
211,
"is of the gravest, medium, or lowest degree. The word likely in second clause of section 299",
conveys the sense of probable as distinguished from a mere possibility. The words ‘bodily,
"injury ………… sufficient in the ordinary course of nature to cause death’, in clause thirdly of",
"section 300, mean that death will be the most probable result of the injury having regard to the",
"ordinary course of nature; State of Andhra Pradesh v. Rayavarpu Punayya, AIR 1977 SC 45.",
Consent Circumstantial evidence is not sufficient to convict accused when possibility of,
"deceased receiving fatal injury by fall cannot be ruled out; State of Rajasthan v. Kamla, (1991)",
Cr LJ 602 (SC).,
Essential of murder (i) Having regard to the number of injuries inflicted on the deceased it was,
not possible to uphold the contention that there was no intention to kill; Prabhu v. State of,
"Madhya Pradesh, (1991) Cr LJ 1373 (1373-1374) (SC). (ii) When there was no evidence as",
"to how death came about, evidence relating to charge of murder was held to be insufficient",
"and unacceptable; Kedar Nath v. State of Madhya Pradesh, (1991) Cr LJ 989 (SC).",
Exception 4: Heat of passion Mere sudden quarrel would not entitle the accused to seek for,
"Exception 4 to section 300; Samuthram alias Samudra Rajan v. State of Tamil Nadu, (1997)",
2 Crimes 185 (Mad).,
"Exception 4: Scope and applicability of To invoke Exception 4 to section 300, four",
"requirements must be satisfied, namely",
(i) it was a sudden fight;,
(ii) there was no premeditation;,
(iii) the act was done in a heat of passion; and,
(iv) the assailant had not taken any undue advantage or acted in a cruel manner… The number,
of wounds caused during the occurrence is not a decisive factor but what is important is that,
the occurrence must have been sudden and unpremeditated and the offender must have acted,
"in a fit of anger. Of course, the offender must not have taken any undue advantage or acted",
"in a cruel manner. Where, on a sudden quarrel, a person in the heat of the moment picks up",
"a weapon which is handy and causes injuries, one of which proves fatal, he would be entitled",
LLaatteessttLLaawwss..ccoomm,
212,
to the benefit of this Exception provided he has not acted cruelly; Samuthram alias Samudra,
"Rajan v. State of Tamil Nadu, (1997) 2 Crimes 185 (Mad).",
Fight Where a mutual conflict develops and there is no reliable and acceptable evidence as,
"to how it started and as to who was the aggressor, it will not be correct to assume private",
defence for both sides. Such a case will be a case of sudden fight and conflict and has to be,
"dealt with under Exception 4 to section 300 of the Code; Januram v. State of Madhya Pradesh,",
(1997) 2 Crimes 582 (MP).,
Injuries on vital and non-vital parts of body of the deceased Infliction of the injury on the vital,
part of the body with the agricultural instrument by the enraged accused in a sudden quarrel—,
"Held, accused did not cause the injury intentionally; Patel Rasiklal Becharbhai v. State of",
"Gujarat, AIR 1992 SC 1150.",
Injury which is likely to cause death and injury which is sufficient in ordinary course of,
nature to cause death,
(i) Accused inflicted 18 injuries in the arms and legs of the deceased with a gandasa. None of,
the injuries was on a vital part of the body of the deceased. The obvious motive was revenge,
because the deceased’s son had caused a serious leg injury which resulted in the amputations,
"of the leg of P, the son of appellant. The Court held that one of the injuries inflicted by the",
appellant was on a vital part of the body of the deceased whom the appellant had no intention,
"to kill, at the same time though he had no intention to kill, the appellant must have known that",
he was inflicting such bodily injuries as were likely to cause death as a consequence of which,
death did happen. The appellants conviction for murder was accordingly altered to one for,
"culpable homicide; Kapur Singh v. State of Pepsu, AIR 1956 SC 654.",
(ii) It was held by the Supreme Court that whether the injury intended by the accused and,
"actually inflicted by him is sufficient in the ordinary course of nature to cause death or not,",
must be determined in each case on the basis of the facts and circumstances. In the instant,
"case, the injury caused was the result of blow with a knife in the stomach which was given",
with such force that the weapon had penetrated the abdomen and had injured the bowels.,
LLaatteessttLLaawwss..ccoomm,
213,
According to the doctor the injury was sufficient in the ordinary course of nature to cause,
"death. Therefore, in the absence of any circumstances to show that the injury was caused",
"accidentally or unintentionally, it had to be presumed that the accused had intended to cause",
"the inflicted injury and the condition of cl. (3) of section 300, I.P.C. were satisfied. Conviction",
"under section 302 was upheld; Virsa Singh v. State of Punjab, AIR 1958 SC 465.",
"(iii) The appellant had given six blows with a lathi stick on the head of the deceased, one of",
which fractured his skull. The deceased died three weeks after the incident. The injury which,
broke the skull had caused a depression in the brain and death was due to brain hemorrhage.,
It was held that the accused was liable under section 304 for culpable homicide. The Court,
held that even though the blows were inflicted by the appellant on the head of the deceased,
"with force, the lathi not being an iron rod and the deceased being a young man strongly built",
the appellant could not under the circumstances be held to have been actuated with the,
intention of causing the death of the deceased nor do one could think despite the medical,
evidence that the injury was sufficient in the ordinary course of nature to cause death. Seeing,
that he survived for three weeks and looking on the doctor’s admission that an injury of that,
"kind is not incurable; Inder Singh Bagga Singh v. State of Pepsu, AIR 1955 SC 439.",
"Intention and knowledge It is fallacious to contend that when death is caused by a single blow,",
"clause thirdly is not attracted and, therefore, it would not amount to murder. The ingredient",
‘intention’ in that clause gives clue in a given case whether offence involved is murder or not;,
"Jai Prakash v. State (Delhi Administration), (1991) 1 Crimes 474 (SC).",
Proof of sufficiency of the injury to cause death,
(i) Where evidence of both eye witnesses reliable and well corroborated by medical and other,
evidence on record inspires confidence that accused had intention to kill deceased then,
"conviction is liable to be sustained; Robba Ramanna Dora v. State of Andhra Pradesh, 2000",
Cr LJ 118 (AP).,
(ii) Where the ocular evidence is explicit and fully supported by medical evidence and evidence,
of other witnesses and evidence of witnesses who apprehended the accused after some hours,
LLaatteessttLLaawwss..ccoomm,
214,
of occurrence with blood stained weapon then absence of proof of motive will not render the,
"entire prosecution case unbelievable, therefore, charge of murder against accused proved",
"beyond all reasonable doubt; Ram Nath Novia v. State of Bihar, 2000 Cr LJ 318 (Pat).",
(iii) Where the evidence of eye witnesses regarding assault to deceased by accused persons,
"was truthful, reliable and clearly corroborated by medical evidence and common intention of",
accused persons to commit murder of deceased also proved therefore conviction under,
"section 300/34 is proper; Ratan Debnath v. State of Tripura, 2000 Cr LJ 237 (Gau).",
(iv) Chain of evidence must be complete with fully established circumstances not to leave any,
reasonable ground for a conclusion consistent with the innocence of accused. It should be of,
"conclusive nature; Arvind v. State (Delhi Admn.), 1999 (4) SCC 4861: 1999 (3) JT 554.",
Provocation must be grave The test of “grave and sudden” provocation is whether a,
"reasonable man, belonging to the same class of society as the accused, placed in the situation",
in which the accused was placed would be so provoked as to lose his self-control.,
"(2) In India, words and gestures may also, under certain circumstances, cause grave and",
sudden provocation to an accused so as to bring his act within the First Exception to section,
300.,
(3) The mental background created by the previous act of the victim may be taken into,
consideration in ascertaining whether the subsequent act caused grave and sudden,
"provocation for committing the offence; Venkatesan v. State of Tamil Nadu, (1997) 3 Crimes",
146 (Mad).,
"Reasonable man’s—Test The accused, a naval officer, was charged with the murder of P, a",
"businessman of Bombay, for having illicit intimacy with his wife. On coming to know from his",
"wife about the illicit relationship with the deceased, he went to the ship, took from the stores a",
"semi-automatic revolver and six cartridges on a false pretext, loaded the same, went to the",
flat of P entered in his bedroom and shot him dead after a heated exchange of words. The,
court held that the test to be applied is that of the effect of the provocation on a reasonable,
LLaatteessttLLaawwss..ccoomm,
215,
man; and in applying that test it is of particular importance to consider whether a sufficient,
interval has elapsed since the receiving of the information which caused the provocation to,
"allow a reasonable man to cool down; K.M. Nanavati v. State of Maharasthra, AIR 1962 SC",
605.,
"Scope It is now well settled principle of law that if two views are possible, one in favour of the",
"accused and the other adversely against it, the view favouring the accused must be accepted;",
"Raghunath v. State of Haryana, AIR 2003 SC 165.",
"With the knowledge that he is likely, by such act, to cause death (i) In case of murder in which",
the conclusion of guilt is drawn by prosecution it must be fully established beyond all,
"reasonable doubt and consistent with the guilt of the accused; S.D. Soni v. State of Gujarat,",
(1991) Cr LJ 330 (SC).,
(ii) Legislature had advisedly used the words: “bodily injury as the offender knows to be likely,
"to cause death”. Therefore, from an understanding of the legislative intent of section 300,",
"I.P.C., a culpable homicide becomes murder if the attacker causes an injury which he knows",
"is likely to cause death and, of course, consequent to such injury, the victim should die; State",
"of Rajashtan v. Dhool Singh, AIR 2004 SC 1264.",
Section 301. Culpable homicide by causing,
death of person other than person whose,
death was intended,
"If a person, by doing anything which he intends or knows to be likely to cause death, commits",
"culpable homicide by causing the death of any person, whose death he neither intends nor",
"knows himself to be likely to cause, the culpable homicide committed by the offender is of the",
description of which it would have been if he had caused the death of the person whose death,
he intended or knew himself to be likely to cause.,
COMMENTS Accused is punishable for murder under doctrine of transfer of malice under,
section 301 when he aimed at one person but killed another person; Jagpal Singh v. State of,
"Punjab, (1991) Cr LJ 597 (SC).",
LLaatteessttLLaawwss..ccoomm,
216,
Section 302. Punishment for murder,
"Whoever commits murder shall be punished with death, or [imprisonment for life] and shall",
1,
also be liable to fine.,
"CLASSIFICATION OF OFFENCE Punishment—Death, or imprisonment for life, and fine—",
Cognizable—Non-bailable—Triable by Court of Session—Non-compoundable.,
COMMENTS Alteration of conviction In case where facts and circumstances from which,
conclusion of guilt was sought to be drawn by prosecution was not established beyond,
reasonable doubt the conviction under section 302 read with section 34 and under section 392,
"had to be quashed; Hardyal and Prem v. State of Rajasthan, (1991) Cr LJ 345 (SC).",
Appreciation of evidence Conviction can be based on testimony of a single eye witness,
provided his testimony is found reliable and inspires confidence; Anil Phukan v. State of,
"Assam, 1993 (1) Crimes 1180 (SC).",
Benefit of doubt When ocular evidence in murder case is unreliable benefit of doubt to be,
"given to all accused; Chandu Bhai Shana Bhai Parmar v. State of Gujarat, AIR 1982 SC 1022:",
(1981) SCC (Cr) 682.,
Blood stained article Presence of blood stains on floor of room of house and the shawl by,
"themselves are not such circumstances to establish the guilt of accused, grant of benefit of",
"doubt proper; Ramesh Chandra Sao v. State of Bihar, AIR 1999 SC 1574.",
Circumstantial evidence (i) Evidence that gun of brother of deceased placed beneath pillow,
was removed from that place indicate participation in crime. Words uttered just before killing,
deceased and in manner he was killed immediately thereafter leaving no manner of doubt of,
"murder; State of Haryana v. Pradeep Kumar, 1999 SCC (Cr) 358: 1999 (1) Crimes 8 (SC).",
(ii) In cases depending on circumstantial evidence it is true that the chain of events proved by,
the prosecution must show that within all human probability the offence has been committed,
"by the accused, but the court is expected to consider the total cumulative effect of all the",
proved facts along with the motive suggested by the prosecution which induced the accused,
"to follow a particular path; Sarbir Singh v. State of Punjab, 1993(1) Crimes 616 (SC).",
LLaatteessttLLaawwss..ccoomm,
217,
Circumstantial evidence – Importance It is well settled that if the evidence of the eye-,
witnesses are held to be reliable and inspire confidence then the accused cannot be acquitted,
solely on the ground that some superficial injuries found on the person of the accused,
"concerned, had not been explained by the prosecution; A.M. Kunnikoya v. State of Kerala,",
(1993) 1 Crimes 1192 (SC).,
Constructive liability (i) Accused charged under section 302/149 can be convicted under,
"section 302/34; State of Orissa v. Arjun Das, AIR 1999 SC 3229: 1999 (7) Supreme 165.",
(ii) Two offences under section 302 and section 306 of the Indian Penal Code are of distinct,
"and different categories; Sangarabonia Sreenu v. State of Andhra Pradesh, (1997) 4 Supreme",
214.,
(iii) Non-explanation of the injuries on the person of the accused by the prosecution may not,
affect the prosecution case if the injuries sustained by the accused are minor or superficial or,
where the evidence produced by the prosecution is clear and cogent and is of independent,
and dis-interested persons and is consistent with credit worthiness; Sawai Ram v. State of,
"Rajasthan, (1997) 2 Crimes 148 (Raj).",
(iv) Crime of murder committed against public servant doing official duties must be,
"discouraged and dealt with firm hand; Gayasi v. State of Uttar Pradesh, AIR 1981 SC 1160:",
(1981) ALJ 441: (1981) Cr LJ 883: (1981) SCC (Cr) 590: (1981) Cr App R (SC) 385: (1981) 2,
SCC 713.,
Effect of acquittal of some accused on conviction of others Though section 34 is not added to,
"section 302, the accused had clear notice that they were being charged with the offence of",
committing murder in pursuance of their common intentions to put an end to the life of,
"deceased. Hence, the omission to mention section 34 in the charge had only an academic",
"significance, and has not in any way misled the accused; Rawalpenta Venkalu v. State of",
"Hyderabad, AIR 1956 SC 171.",
LLaatteessttLLaawwss..ccoomm,
218,
Importance of motive (i) In dowry deaths motive for murder exists and what is required of,
"courts is to examine as to who translated it into action as motive viz., whether individual or",
"family; Ashok Kumar v. State of Rajasthan, (1991) 1 Crimes 116 (SC).",
"(ii) Accused committed murder in professional manner with planned motivation, accused",
deserved no sympathy even when the accused had no personal motive; Kuljeet Singh v. Union,
"of India, AIR 1981 SC 1572: (1981) Cr LJ 1045: (1981) Cr LR (SC) 328.",
Intention of causing death When the appellant dealt a severe knife blow on the stomach of,
deceased without provocation and when deceased was unarmed and had already been,
injured by co-accused the appellant cannot be held that he had no intention to cause a,
murderous assault by mere fact that only one blow was inflicted; Nashik v. State of,
"Maharashtra, 1993 (1) Crimes 1197 (SC).",
"Medical evidence – importance Mere variance of prosecution story with the medical evidence,",
"in all cases, should not lead to conclusion inevitably to reject the prosecution story. Court to",
"make out efforts within judicial sphere to know truth; Mohan Singh v. State of Madhya Pradesh,",
AIR 1999 SC 883: 1999 (2) SCC 428.,
Mental derangement short of insanity Where feeling life unbearable on account of domestic,
"quarrels, a woman (accused) jumped into a well with her children, it was held that the only",
"sentence that could be passed, was the lesser sentence of imprisonment for life; Gyarsibai",
"w/o Jagannath v. State, AIR 1953 MB 61.",
Rarest of the rare cases (i) Undoubtedly brutality is involved in every incidence of murder but,
"that brutality by itself will not bring it within the ambit of the rarest of the rare cases, for the",
"purposes of the death penalty; Subhash Ramkumar Bina @ Vakil v. State of Maharashtra,",
AIR 2003 SC 269.,
(ii) It is alleged that all the four accused expressed their resentment and held Mrs. Gandhi,
responsible for operation ‘Blue Star’ at Amritsar. To avenge they entered into a conspiracy to,
"kill Mrs. Gandhi. In pursuance of the aforesaid conspiracy, two accused being security guards,",
who had prior knowledge that Smt. Gandhi was scheduled to go on the morning of 31st,
"October, 1984 from her residence at Safdar Jang Road to her office at Akbar Road via TMC",
LLaatteessttLLaawwss..ccoomm,
219,
"gate for an interview with Irish Television team, got manipulated their duties in such a way that",
one of the accused would be present at the TMC gate and another at TMC sentry booth,
between 7.00 AM to 10.00 AM. While Mrs. Gandhi was approaching to TMC gate towards her,
office one of the accused fired five rounds and another accused 25 shots at her from their,
respective weapons. Smt. Gandhi sustained injuries and fell down and succumbed to her,
"injuries same day at the All India Institute of Medical Sciences, New Delhi. The Supreme Court",
confirmed the death sentence awarded by the trial Court and maintained by High Court to,
three appellants for entering into conspiracy and committing murder of leader under sections,
"302, 120B, 34, 107 and 109 of the Penal Code and held that the murder by the security guards",
is one of the rarest of rare case in which extreme penalty of death is called for to assassin and,
"his conspirators; Kehar Singh v. Delhi Administration, AIR 1988 SC 1883.",
"(iii) On the night of 21st May, 1991 a diabolical (wicked) crime was committed. It stunned the",
"whole nation. Rajiv Gandhi, former Prime Minister of India, was assassinated by a human",
bomb. With him 15 persons including a policeman perished and 43 suffered grievous or simple,
"injuries. Assassin Dhanu one of the LTTE activist, who detonated (exploded) the belt bomb",
"concealed under her waist and Haribabu, a photographer (and also a conspirator) engaged to",
"take photographs of the horrific sight, also died in the blast. A camera was found intact on the",
body of Haribabu at the scene of the crime. Film of the camera when developed led to,
unfolding of the dastardly act committed by the accused and others. A charge of conspiracy,
"for offences under TADA, I.P.C., Explosive Substances Act, 1908, Arms Act, 1959, Passport",
"Act, 1967, Foreigners Act, 1946 and the Indian Wireless Telegraphy Act, 1933 was laid against",
"41 persons, 12 of whom were already dead having committed suicide and three absconded.",
Out of these 26 faced the trial before the Designated Court. Prosecution examined 288,
witnesses and produced numerous documents and material objects. The Court found them,
guilty of the offences charged against them and awarded death sentence to 21 of them on the,
"charge of conspiracy to murder under section 120B read with section 203, I.P.C. The apex",
Court by a unanimous verdict set at liberty 19 accused for charges under section 120B read,
"with section 302, I.P.C. and confirmed the death sentence awarded by the trial Court. As",
LLaatteessttLLaawwss..ccoomm,
220,
regards the extreme penalty of death to Nalani was concerned it was confirmed by a majority,
of 2 to 1. Considering the fact that she belonged to the weaker section and she was led into,
"the conspiracy by players on her feminine sentiments, she became an obedient participant",
without doing any dominator’s role. She was persistently brainwashed by A3 who became her,
husband and then the father of her child and her helplessness in escaping from the cobweb,
of Sivarasan and company. The mere fact that she became obedient to all the instructions of,
"Sivarasan, need not be used for treating her conduct as amounting to rarest of the rare cases.",
The President of India commuted the death sentence of Nalani to life imprisonment on,
"humanitarian ground, as she was mother of an infant child; State of Tamil Nadu through",
"Superintendent of Police CBI/SIT v. Nalani, AIR 1999 (5) SC 2640.",
"Relevant factors to ascertain murder The basic constituent of an offence under section 302,",
"is homicidal death; Sangarabonia Sreenu v. State of Andhra Pradesh, (1997) 4 Supreme 214.",
Sentence – General Provisions of death sentence being an alternative punishment for murder,
"is not unreasonable; Bachhan Singh v. State of Punjab, AIR 1980 SC 898: (1980) 2 SCC 864:",
(1980) Cr LJ 636 : (1980) Cr LR (SC) 388: 1980 (2) SCJ 475.,
"Strangulation, throttling and hanging cases Where post mortem report showed that there was",
"ligaltive mark on the neck of the deceased wife which was anti-mortem, the opinion of the",
doctor was clear and definite that such ligaltive mark of 5 cm width in horizontal position could,
"not be caused by strangulation, the medical evidence, therefore, completely pacified the case",
of the accused husband that on his return from the field to his house he had found his wife,
"hanging, and thus she had committed suicide; Madhari v. State of Chattisgarh, 2002 Cr LJ",
2630 (SC). ———————,
"1. Subs. by Act 26 of 1955, sec. 117 and Sch., for “transportation for life” (w.e.f. 1-1-",
1956).,
Section 303. Punishment for murder by,
life-convict,
LLaatteessttLLaawwss..ccoomm,
221,
"Whoever, being under sentence of [imprisonment for life], commits murder, shall be punished",
1,
with death.,
CLASSIFICATION OF OFFENCE Punishment—Death—Cognizable—Non-bailable—,
Triable by Court of Session—Non-compoundable. ———————–,
"1. Subs. by Act 26 of 1955, sec. 117 and Sch., for “transportation for life” (w.e.f. 1-1-",
1956).,
Section 304. Punishment for culpable,
homicide not amounting to murder,
Whoever commits culpable homicide not amounting to murder shall be punished,
"with [imprisonment for life], or imprisonment of either description for a term which may extend",
1,
"to ten years, and shall also be liable to fine, if the act by which the death is caused is done",
"with the intention of causing death, or of causing such bodily injury as is likely to cause death,",
"or with imprisonment of either description for a term which may extend to ten years, or with",
"fine, or with both, if the act is done with the knowledge that it is likely to cause death, but",
"without any intention to cause death, or to cause such bodily injury as is likely to cause death.",
CLASSIFICATION OF OFFENCE,
"Para I Punishment—Imprisonment for life, or imprisonment for 10 years and fine—",
Cognizable—Non-bailable—Triable by Court of Session—Non-compoundable.,
"Para II Punishment—Imprisonment for 10 years, or fine, or both—Cognizable—Non-",
bailable—Triable by Court of Session—Non-compoundable.,
"COMMENTS Alteration of conviction (i) Where the accused, who inflicted fatal injury on",
"head of deceased which caused his death, without intention to kill him is liable to be convicted",
under section 304 Part II while other accused who inflicted sword injury liable to be convicted,
"under section 324 IPC; Asu v. State of Rajasthan, 2000 Cr LJ 207 (Raj). (ii) Where the accused",
"was about 80 years at the time of occurrence and is totally bedridden, sentence reduced to",
"period already under gone for the ends of justice; Dev Singh v. State of Punjab, 2000 Cr LJ",
347 (Punj).,
LLaatteessttLLaawwss..ccoomm,
222,
Punishment (i) Where there were contradictions in evidence of prosecution witnesses on,
"major issues including location of place of occurrence, number of persons participating in",
commission of offence and non-examination of doctor to establish cause of death and also,
"non-examination of i.o., conviction of accused cannot be sustained; Sahdeo Prasad Sao v.",
"State of Bihar, 2000 Cr LJ 242 (Pat). (ii) Whether the plea of drunkenness can be taken as",
defence for claiming acquittal or for lessening sentence depends upon ‘intention’ and,
"‘knowledge’ of the accused; Mirza Ghani Baig v. State of Andhra Pradesh, (1997) 2 Crimes",
19 (AP).,
Scope (i) Before an accused is held guilty and punished under first part or second part of,
section 304 a death must have been caused by the assailant under any of the circumstances,
"mentioned in the five exceptions to section 300; Harendra Nath Mandal v. State of Bihar,",
(1993) 1 Crimes 984 (SC).,
(ii) The accused inflicted bodily injuries on the deceased which were of such nature that they,
were likely to cause death. There can be no doubt that the accused intended to cause and did,
"cause the injuries, therefore liable to be punished under the first part of section 304 of Indian",
"Penal Code; Shanmugam alias Kulandaivelu v. State of Tamil Nadu, AIR 2003 SC 209. ——",
——————,
"1. Subs. by Act 26 of 1955, sec. 117 and Sch., for “transportation for life” (w.e.f. 1-1-",
1956).,
Section 304A. Causing death by,
negligence,
[304A. Causing death by negligence.—Whoever causes the death of any person by doing any,
1,
"rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment",
"of either description for a term which may extend to two years, or with fine, or with both.]",
"CLASSIFICATION OF OFFENCE Punishment—Imprisonment for 2 years, or fine, or both—",
Cognizable—Bailable—Triable by Magistrate of the first class—Non-compoundable.,
LLaatteessttLLaawwss..ccoomm,
223,
Comments Automobile accidents If there is an accident because of the negligence of the,
"gateman in keeping the gate open and inviting the vehicles to pass, the driver of the bus",
"cannot be held guilty of negligence; S.N. Hussain v. State of Andhra Pradesh, AIR 1972 SC",
685.,
Distinction between rash and negligent act The appellant was charged with an offence under,
section 304A for causing death of one M by contact with the electrically charged copper wire,
which he had fixed up at the back of his house with a view to prevent the entry of intruders,
into his latrine. It was held that the voltage of the current passing through the naked wire being,
"high enough to be lethal, there could be no dispute that charging it with current of that voltage",
was a rash act done in reckless disregard of the serious consequences to people coming into,
contact with it for which the accused is solely responsible under section 304A; Cherupin,
"Gregory v. State of Bihar, 1964 (1) Cr LJ 138: AIR 1965 SC 205.",
"Scope In order to impose criminal liability on the accused, it must be found as a fact that",
collusion was entirely or mainly due to the rashness or negligence; Munile Sao v. State of,
"Bihar, (1997) 3 Crimes 200 (Pat). ————————",
"1. Ins. by Act 27 of 1870, sec. 12.",
Section 304B. Dowry death,
[304B. Dowry death.—(1) Where the death of a woman is caused by any burns or bodily injury,
1,
or occurs otherwise than under normal circumstances within seven years of her marriage and,
it is shown that soon before her death she was subjected to cruelty or harassment by her,
"husband or any relative of her husband for, or in connection with, any demand for dowry, such",
"death shall be called “dowry death”, and such husband or relative shall be deemed to have",
caused her death.,
"Explanation For the purpose of this sub-section, “dowry” shall have the same meaning as in",
"section 2 of the Dowry Prohibition Act, 1961 (28 of 1961).",
LLaatteessttLLaawwss..ccoomm,
224,
(2) Whoever commits dowry death shall be punished with imprisonment for a term which shall,
not be less than seven years but which may extend to imprisonment for life.],
CLASSIFICATION OF OFFENCE Punishment—Imprisonment of not less than 7 years but,
which may extend to imprisonment for life—Cognizable—Non-bailable—Triable by Court of,
Session—Non-compoundable.,
COMMENTS Applicability It was argued that the husband or any of his relative could be,
guilty of the offence only if he or she directly participated in the actual commission of the,
offence. This contention was rejected by the Andhra Pradesh High Court. It observed that in,
"its real import, section 304B of the Indian Penal Code would be applicable if cruelty or",
"harassment was inflicted by the husband on any of his relative for, or in connection with",
"demand for dowry, immediately preceding the death by bodily injury or by burning. In short",
she should have died in abnormal circumstances within seven years of the marriage. In such,
"circumstances the husband or the relative, as the case may be, will be deemed to have caused",
"her death and will be liable to punishment; Vadde Rama Rao v. State of Andhra Pradesh,",
1990 Cr LJ 1666.,
Burden of Proof The prosecution under section 304B of Indian Penal Code cannot escape,
from the burden of proof that the harassment to cruelty was related to the demand for dowry,
and such was caused “soon before her death”. The word “dowry” has to be understood as it,
"is defined in section 2 of the Dowry Prohibition Act, 1961. Thus, there are three occasions",
"related to dowry, i.e., before marriage, at the time of marriage and at an unending period. The",
"customary payment in connection with the birth of child or other ceremonies, are not involved",
"within ambit of “dowry”; Satvir Singh v. State of Punjab, AIR 2001 SC 2828: (2001) 8 SCC",
633.,
Dowry (i) Where the evidence revealed that accused—husband killed deceased—wife for not,
satisfying his dowry demand but nothing on record to show involvement of co-accused in-laws,
"with the offence committed by the accused, co-accused in-laws are not guilty of offence under",
"sections 304B; Patil Paresh Kumar Jayanti Lal v. State of Gujarat, 2000 Cr LJ 223 (Guj). (ii)",
"The parties were married on 24-5-1962. After staying in the matrimonial home for two months,",
LLaatteessttLLaawwss..ccoomm,
225,
she returned to her parents’ house and told them that her husband wanted a television set,
"and a fridge. Her father gave her a sum of Rs. 6,000 and she left for the matrimonial home.",
"Her husband again demanded a sum of Rs. 25,000 for purchasing a plot. Thereafter the",
husband took his wife to her parents’ home saying that he would not take her back unless a,
"sum of Rs. 25,000 was paid to him. After one year he took her back but he did not give up the",
"demand for Rs. 25,000. Soon thereafter she left for her parents’ home and came back with a",
"sum of Rs. 15,000 with a promise that the rest of the amount would be paid later on. In her",
husband’s home she died of strangulation. The trial court found the accused guilty. The death,
of the deceased took place within seven years of marriage and persistent demands of dowry,
were made on her and she died under mysterious circumstances. The trial court framed,
charge under section 304B. The Supreme Court held that no ground for quashing the charge,
"was made out; Nem Chand v. State of Haryana, (1994) 3 Crimes 608 (SC).",
"Essential ingredients To attract the provisions of section 304B, one of the main ingredients of",
the offence which is required to be established is that “soon before her death” she was,
subjected to cruelty and harassment “in connection with the demand of dowry”; Prema S. Rao,
"v. Yadla Srinivasa Rao, AIR 2003 SC 11.",
Expression ‘soon before her death’: meaning of The expression ‘soon before her death’ used,
"in the substantive section 304B, I.P.C. and section 113B of the Evidence Act is present with",
the idea of proximity text. No definite period has been indicated and the expression ‘soon,
before her death’ is not defined. The determination of the period which can come within the,
"term ‘soon before’ is left to be determined by the courts, depending upon facts and",
"circumstances of each case. Suffice, however, to indicate that the expression ‘soon before",
would normally imply that the interval should not be much between the concerned cruelty or,
harassment and the death in question. There must be existence of a proximate and live-link,
between the effect of cruelty based on dowry demand and the concerned death. If alleged,
incident of cruelty is remote in time and has become stale enough not to disturb mental,
"equilibrium of the woman concerned, it would be of no consequence; Kaliyaperumal v. State",
LLaatteessttLLaawwss..ccoomm,
226,
"of Tamil Nadu, AIR 2003 SC 3828. See also Yashoda v. State of Madhya Pradesh, (2004) 3",
SCC 98.,
Presumption: Applicability,
(i) The presumption shall be raised only on proof of the following essentials:—,
(1) The question before the court must be whether the accused has committed the dowry,
death of a woman.,
(2) The woman was subjected to cruelty or harassment by her husband or his relatives.,
"(3) Such cruelty or harassment was for, or in connection with, any demand for dowry.",
(4) Such cruelty or harassment was soon before her death. Kaliyaperumal v. State of Tamil,
"Nadu, AIR 2003 SC 3828.",
(ii) In dowry death cases and in most of such offences direct evidence is hardly available and,
such cases are usually proved by circumstantial evidence. This section as well as section,
"113B of the Evidence Act enact a rule of presumption, i.e., if death occurs within seven years",
of marriage in suspicious circumstances. This may be caused by burns or any other bodily,
"injury. Thus, it is obligatory on the part of the prosecution to show that death occurred within",
seven years of marriage. If the prosecution would fail to establish that death did not occur,
"within seven years of marriage, this section will not apply; Ratan Lal v. State of Madhya",
"Pradesh, 1994 Cri LJ 1684. See also, N.V. Satyanandam v. Public Prosecutor, AP High Court,",
AIR 2004 SC 1708.,
Section 304B and Section 498A – Distinction Section 304B is a substantive provision creating,
a new offence and not merely a provision effecting a change in procedure for trial of a pre-,
"existing substantive offence. As a consequence, accused cannot be tried and punished for",
the offence of dowry death provided in section 304B with the minimum sentence of seven,
years’ imprisonment for an act done by them prior to creation of the new offence of dowry,
"death; Soni Devrajbhai Babubhai v. State of Gujarat, 1991 Cr LJ (313) (SC).",
LLaatteessttLLaawwss..ccoomm,
227,
Scope (i) A perusal of section 304B clearly shows that if a married woman dies otherwise than,
under normal circumstances within seven years of her marriage and it is shown that soon,
before her death she was subjected to cruelty or harassment by her husband or any relative,
"of her husband in connection with demand for dowry, such death shall be called “dowry death”",
and such husband or relative shall be deemed to have caused the death.,
The conditions precedent for establishing an offence under this section are as follows:,
(a) that a married woman had died otherwise than under normal circumstances;,
(b) such death was within seven years of her marriage; and,
(c) the prosecution has established that there was cruelty and harassment in connection with,
"demand for dowry soon before her death; Baljit Singh v. State of Haryana, AIR 2004 SC 1714:",
(2004) 3 SCC 122.,
(ii) Offence under section 304B of the Indian Penal Code is triable by the Court of Session. It,
is a cognizable and non-bailable offence. The minimum punishment for the offence is seven,
years imprisonment which may extend to life imprisonment. Section 304B applies not only,
when death is caused by her husband or in-laws but also when death occurs unnaturally,
whoever might have caused it. The section will apply whenever the occurrence of death is,
preceded by cruelty or harassment by husband or in-laws for dowry and death occurs in,
unnatural circumstances. It may be emphasised that occurrence of death in such,
circumstances is enough though death might not have been in fact caused by the husband or,
in-laws. Thus the intention behind the section is to fasten death on the husband or in-laws,
though they did not in fact caused the death. Thus a fiction has been created. It is because in,
"these circumstances, the misery and agony created thereby which compels the unfortunate",
"married woman to end her life; Premwati v. State of Uttar Pradesh, 1991 Cr LJ 263.",
"Unnatural death In-laws insisted dowry demands on one married young woman. Ultimately,",
it appeared that she was done to death and her body was cremated without sending any,
"information to her parents or any relatives. The Supreme Court held that, if it was natural",
LLaatteessttLLaawwss..ccoomm,
228,
"death, there was no need for the appellants to act in such unnatural manner and cremate the",
body in great and unholy haste without even informing the parents. In the result it was an,
"unnatural death, either homicidal or suicidal. But even assuming that it is a case of suicide",
even then it would be death which had occurred in unnatural circumstances. Even in such a,
"case, section 304B is attracted and this position is not disputed. Therefore, the prosecution",
has established that the appellants have committed an offence punishable under section 304B,
"beyond all reasonable doubts; Shanti v. State of Haryana, AIR 1991 SC 1226. ——————",
"——– 1 Ins. by Act 43 of 1986, sec. 10 (w.e.f. 19-11-1986).",
Section 305. Abetment of suicide of child or,
insane person,
"If any person under eighteen years of age, any insane person, any delirious person, any idiot,",
"or any person in a state of intoxication, commits suicide, whoever abets the commission of",
"such suicide, shall be punished with death or [ imprisonment for life], or imprisonment for a",
1,
"term not exceeding ten years, and shall also be liable to fine.",
"CLASSIFICATION OF OFFENCE Punishment—Death, or imprisonment for life, or",
imprisonment for 10 years and fine—Cognizable—Non-bailable—Triable by Court of,
Session—Non-compoundable. ————————-,
"1. Subs. by Act 26 of 1955, sec. 117 and Sch., for “transportation for life” (w.e.f. 1-1-",
1956).,
Section 306. Abetment of suicide,
"If any person commits suicide, whoever abets the commission of such suicide, shall be",
"punished with imprisonment of either description for a term which may extend to ten years,",
and shall also be liable to fine.,
CLASSIFICATION OF OFFENCE Punishment—Imprisonment for 10 years and fine—,
Cognizable—Non-bailable—Triable by Court of Session—Non-compoundable.,
LLaatteessttLLaawwss..ccoomm,
229,
Comments Abetment of attempt to commit suicide (i) It has been held that once the offence,
"of abatement of committing suicide is clearly made out against accused, despite the fact that",
"specific charge under section 306 was not framed against accused, would not preclude court",
"from convicting accused for offence found proved; Prema S. Rao v. Yadla Srinivasa Rao, AIR",
2003 SC 11.,
"(ii) The basic constituents of an offence under section 306, are suicidal death and abetment",
"thereof; Sangarabonia Sreenu v. State of Andhra Pradesh, (1997) 4 Supreme 214.",
"(iii) To attract the ingredients of abetment, the intention of the accused to aid or instigate or",
abet the deceased to commit suicide is necessary; Pallem Deniel Victoralions Victor Manter,
"v. State of Andhra Pradesh, (1997) 1 Crimes 499 (AP).",
Sec. 302 and Sec. 306 – Basic distinction Two offences under section 302 and section 306 are,
"of distinct and different categories; Sangarabonia Sreenu v. State of Andhra Pradesh, (1997)",
4 Supreme 214.,
Sentence For offence under section 306 the sentence may extend to ten years. In case the,
"husband is found to have harassed his wife to such an extent as to drive her to commit suicide,",
sentence of five years would be proper sentence for the crime with the amount of fine of Rs.,
"20000 to be paid to the parents of the deceased; Prema S. Rao v. Yadla Srinivasa Rao, AIR",
2003 SC 11.,
Suicide—Meaning of The ‘suicide’ is stated to mean as the intentional killing of oneself. As,
"per Concise Oxford Dictionary, 9th Edition, p. 1393 A finding of suicide must be on evidence",
"of intention. Every act of self destruction is, in common language described by the word",
‘suicide’ provided it is an intentional act of a party knowing the probable consequence of what,
he is about. Suicide is never to be presumed. Intention is the essential legal ingredient. As per,
"Halsbury’s Laws of England, Fourth Edition, Ninth Volume, pg. 686.",
Section 307. Attempt to murder,
LLaatteessttLLaawwss..ccoomm,
230,
"Whoever does any act with such intention or knowledge, and under such circumstances that,",
"if he by that act caused death, he would be guilty of murder, shall be punished with",
"imprisonment of either description for a term which may extend to ten years, and shall also be",
"liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either",
"to [imprisonment for life], or to such punishment as is hereinbefore mentioned.",
1,
Attempts by life convicts.—[When any person offending under this section is under sentence,
2,
"of[imprisonment for life], he may, if hurt is caused, be punished with death.]",
1,
"llustrations (a) A shoots at Z with intention to kill him, under such circumstances that, if death",
ensued. A would be guilty of murder. A is liable to punishment under this section.,
"(b) A, with the intention of causing the death of a child of tender years, exposes it in a desert",
"place. A has committed the offence defined by this section, though the death of the child does",
not ensue.,
"(c) A, intending to murder Z, buys a gun and loads it. A has not yet committed the offence. A",
"fires the gun at Z. He has committed the offence defined in this section, and if by such firing",
"he wounds Z, he is liable to the punishment provided by the latter part of [the first paragraph",
3,
of] this section.,
"(d) A, intending to murder Z by poison, purchases poison and mixes the same with food which",
remains in A’s keeping; A has not yet committed the offence defined in this section. A places,
the food on Z’s table or delivers it to Z’s servant to place it on Z’s table. A has committed the,
offence defined in this section.,
CLASSIFICATION OF OFFENCE Para I Punishment—Imprisonment for 10 years and,
fine—Cognizable—Non-bailable—Triable by Court of Session—Non-compoundable.,
"Para II Punishment—Imprisonment for life, or imprisonment for 10 years and fine—",
Cognizable—Non-bailable—Triable by Court of Session—Non-compoundable.,
"Para III Punishment—Death, or imprisonment for 10 years and fine—Cognizable—Non-",
bailable—Triable by Court of Session—Non-compoundable.,
LLaatteessttLLaawwss..ccoomm,
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COMMENTS Knowledge The intention of knowledge of the accused must be such as is,
"necessary to constitute murder; Hari Kishan and State of Haryana v. Sukhbir Singh, (1989) Cr",
LJ 116: AIR 1988 SC 2127.,
Scope and applicability (i) The question of intention to kill or the knowledge of death in terms,
"of section 307, is a question of fact and not one of law. It would all depend on the facts of a",
"given case; Vasant Virthu Jadhav v. State of Maharashtra, (1997) 2 Crimes 539 (Bom).",
(ii) The important thing to be borne in mind in determining the question whether an offence,
"under section 307, is made out is the intention and not the injury (even if simple or minor);",
"Vasant Virthu Jadhav v. State of Maharashtra, (1997) 2 Crimes 539 (Bom).",
"(iii) It is not necessary that injury, capable of causing death, should have been inflicted. What",
"is material to attract, the provisions of section 307 is the guilty intention or knowledge with",
"which the all was done, irrespective of its result. The intention and knowledge are the matters",
of inference from totality of circumstances and cannot be measured merely from the results;,
"Ansarudin v. State of Madhya Pradesh, (1997) 2 Crimes 157 (MP). ———————-",
"1. Subs. by Act 26 of 1955, sec. 117 and Sch., for “transportation for life” (w.e.f. 1-1-",
1956).,
"2. Ins. by Act 27 of 1870, sec. 11.",
"3. Ins. by Act 12 of 1891, sec. 2 and Sch. II.",
Section 308. Attempt to commit culpable,
homicide,
"Whoever does any Act with such intention or knowledge and under such circumstances that,",
"if he by that Act caused death, he would be guilty of culpable homicide not amount to murder,",
shall be punished with imprisonment of either description for a term which may extend to three,
"years, or with fine, or with both, and if hurt is caused to any person by such Act, shall be",
"punished with imprisonment of either description for a term which may extend to seven years,",
"or with fine, or with both.",
LLaatteessttLLaawwss..ccoomm,
232,
"Illustration A, on grave and sudden provocation, fires a pistol at Z, under such circumstances",
that if he thereby caused death he would be guilty of culpable homicide not amounting to,
murder. A has committed the offence defined in this section.,
CLASSIFICATION OF OFFENCE,
"Para I Punishment—Imprisonment for 3 years, or fine, or both—Cognizable—Non-bailable—",
Triable by Court of Session—Non-compoundable.,
"Para II Punishment—Imprisonment for 7 years, or fine, or both Cognizable—Non-bailable—",
Triable by Court of Session—Non-compoundable.,
Section 309. Attempt to commit suicide,
Whoever attempts to commit suicide and does any act towards the commission of such,
"offence, shall be punished with simple imprisonment for term which may extend to one year[",
1,
"or with fine, or with both].",
"CLASSIFICATION OF OFFENCE Punishment—Simple imprisonment for 1 year, or fine or",
both—Cognizable—Bailable—Triable by any Magistrate—Non-compoundable.,
COMMENTS ‘Attempts to commit suicide’ as under sections 306 and 307 A person who,
jumps into a well in order to avoid and escape from her husband and subsequently comes out,
"of the well herself, cannot be convicted under this section if there is no evidence to show that",
"she wanted to commit suicide; Emperor v. Dhirajia, AIR 1940 All 486.",
Right to die vis-a-vis Right not to die The Supreme Court has set aside its earlier judgment in,
"P. Rathinam/ Nagbhushan Patnaik v. Union of India, JT 1994 (3) SC 392, wherein the Court",
had struck down section 309 as unconstitutional. In a country where one-half of its population,
"still live below the poverty line, the right to die by suicide cannot be granted to any person.",
"Article 21 of the Constitution, which gives right to life and personal liberty, by no stretch of",
imagination can be said to impliedly include right to death by committing suicide. The section,
is also not violative of article 14. There is no requirement of awarding any minimum sentence.,
The sentence of imprisonment or fine is not compulsory but discretionary; Gian Kaur v. State,
"of Punjab, JT 1996 (3) SC 339. —————————-",
LLaatteessttLLaawwss..ccoomm,
233,
"1. Subs. by Act 8 of 1882, sec. 7, for “and shall also be liable to fine”.",
Section 310. Thug,
"Whoever, at any time after the passing of this act, shall have been habitually associated with",
any other or others for the purpose of committing robbery or child-stealing by means of or,
"accompanied with murder, is a thug.",
Section 311. Punishment,
"Whoever is a thug, shall be punished with [imprisonment for life] and shall also be liable to",
1,
fine.,
CLASSIFICATION OF OFFENCE Punishment—Imprisonment for life and fine—,
Cognizable—Non-bailable—Triable by Court of Session—Non-compoundable. ——————,
——-,
"1. Subs. by Act 26 of 1955, sec. 117 and Sch., for “transportation for life” (w.e.f. 1-1-",
1956).,
Section 312. Causing miscarriage,
"Whoever voluntarily causes a woman with child to miscarry, shall, if such miscarriage be not",
"caused in good faith for the purpose of saving the life of the woman, be punished with",
"imprisonment of either description for a term which may extend to three years, or with fine, or",
"with both, and, if the woman be quick with child, shall be punished with imprisonment of either",
"description for a term which may extend to seven years, and shall also be liable to fine.",
"Explanation A woman who causes herself to miscarry, is within the meaning of this section.",
CLASSIFICATION OF OFFENCE,
"Para I Punishment—Imprisonment for 3 years, or fine or both—Non-cognizable—Non-",
bailable—Triable by Magistrate of the first class—Non-compoundable.,
Para II Punishment—Imprisonment for 7 years and fine—Non-cognizable—Bailable—Triable,
by Magistrate of the first class—Non-compoundable.,
LLaatteessttLLaawwss..ccoomm,
234,
Section 313. Causing miscarriage without,
woman’s consent,
Whoever commits the offence defined in the last preceding section without the consent of the,
"woman, whether the woman is quick with child or not, shall be punished with [ imprisonment",
1,
"for life] or with imprisonment of either description for a term which may extend to ten years,",
and shall also be liable to fine.,
"CLASSIFICATION OF OFFENCE Para I Punishment—Imprisonment for life, or",
imprisonment for 10 years and fine—Cognizable—Non-bailable—Triable by Court of Ses-,
sion—Non-compoundable. ———————-,
"1. Subs. by Act 26 of 1955, sec. 117 and Sch., for “transportation for life” (w.e.f. 1-1-",
1956).,
Section 314. Death caused by act done,
with intent to cause miscarriage-,
"Whoever, with intent to cause the miscarriage of woman with child, does any act which causes",
"the death of such woman, shall be punished with imprisonment of either description for a term",
"may extend to ten years, and shall also be liable to fine.",
If act done without woman’s consent.— And if the act is done without the consent of the,
"woman, shall be punished either with [imprisonment for life] or with the punishment above",
1,
mentioned,
Explanation It is not essential to this offence that the offender should know that the act is likely,
to cause death.,
CLASSIFICATION OF OFFENCE Para I Punishment—Imprisonment for 10 years and,
fine—Cognizable—Non-bailable—Triable by Court of Session—Non-compoundable. Para,
"II Punishment—Imprisonment for life, or as above—Cognizable—Non-bailable—Triable by",
Court of Session—Non-compoundable. ———————-,
LLaatteessttLLaawwss..ccoomm,
235,
"1. Subs. by Act 26 of 1955, sec. 117 and Sch., for “transportation for life” (w.e.f. 1-1-",
1956).,
Section 315. Act done with intent to prevent,
child being born alive or to cause it to die,
after birth,
Whoever before the birth of any child does any act with the intention of thereby preventing that,
"child from being born alive or causing it to die after its birth, and does by such act prevent that",
"child from being born alive, or causes it to die after its birth, shall, if such act be not caused in",
"good faith for the purpose of saving the life of the mother, be punished with imprisonment of",
"either description for a term which may extend to ten years, or with fine, or with both.",
"CLASSIFICATION OF OFFENCE Punishment—Imprisonment for 10 years, or fine, or",
both—Cognizable—Non-bailable—Triable by Court of Session—Non-compoundable.,
Section 316. Causing death of quick,
unborn child by act amounting to culpable,
homicide,
"Whoever does any act under such circumstances, that if he thereby caused death he would",
"be guilty of culpable homicide, and does by such act cause the death of a quick unborn child,",
shall be punished with imprisonment of either description for a term which may extend to ten,
"years, and shall also be liable to fine.",
"Illustration A, knowing that he is likely to cause the death of a pregnant woman, does an act",
"which, if it caused the death of the woman, would amount to culpable homicide. The woman",
"is injured, but does not die, but the death of an unborn quick child with which she is pregnant",
is thereby caused. A is guilty of the offence defined in this section.,
CLASSIFICATION OF OFFENCE Punishment—Imprisonment for 10 years and fine—,
Cognizable—Non-bailable—Triable by Court of Session—Non-compoundable.,
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236,
Section 317. Exposure and abandonment,
"of child under twelve years, by parent or",
person having care of it.,
"Whoever being the father or mother of a child under the age of twelve years, having the care",
"of such child, shall expose or leave such child in any place with the intention of wholly",
"abandoning such child, shall be punished with imprisonment of either description for a term",
"which may extend to seven years; or with fine, or with both.",
Explanation This section is not intended to prevent the trial of the offender for murder or,
"culpable homicide, as the case may be, if the child dies in consequence of the exposure.",
"CLASSIFICATION OF OFFENCE Punishment—Imprisonment for 7 years, or fine, or both—",
Cognizable—Bailable—Triable by Magistrate of the first class—Non-compoundable.,
Section 318. Concealment of birth by,
secret disposal of dead body.,
"Whoever, by secretly burying or otherwise disposing of the death body of a child whether such",
"child die before or after or during its birth, intentionally conceals or endeavours to conceal the",
"birth of such child, shall be punished with imprisonment of either description for a term which",
"may extend to two years, or with fine, or with both.",
"CLASSIFICATION OF OFFENCE Punishment—Imprisonment for 2 years, or fine, or both—",
Cognizable—Bailable—Triable by Magistrate of the first class—Non-compoundable.,
Section 319. Hurt.,
"Whoever causes bodily pain, disease or infirmity to any person is said to cause hurt.",
Section 320. Grievous hurt.,
The following kinds of hurt only are designated as “grievous”:—,
First.— Emasculation.,
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237,
Secondly.—Permanent privation of the sight of either eye.,
"Thirdly.— Permanent privation of the hearing of either ear,",
Fourthly.—Privation of any member or joint.,
Fifthly.— Destruction or permanent impairing of the powers of any member or joint.,
Sixthly.— Permanent disfiguration of the head or face.,
Seventhly.—Fracture or dislocation of a bone or tooth.,
Eighthly.—Any hurt which endangers life or which causes the sufferer to be during the space,
"of twenty days in severe bodily pain, or unable to follow his ordinary pursuits.",
COMMENTS The act of squeezing the testicles of a person would be an offence of causing,
"grievous hurt; State of Karnataka v. Shivalingaiah, (1988) Cr LJ 394: AIR 1988 SC 115.",
Section 321. Voluntarily causing hurt.,
"Whoever does any act with the intention of thereby causing hurt to any person, or with the",
"knowledge that he is likely thereby to cause hurt to any person, and does thereby cause hurt",
"to any person, is said “voluntarily to cause hurt”.",
Section 322. Voluntarily causing grievous,
hurt,
"Whoever voluntarily causes hurt, if the hurt which the intends to cause or knows himself to be",
"likely to cause is grievous hurt, and if the hurt which he causes is grievous hurt, is said",
“voluntarily to cause grievous hurt”.,
Explanation A person is not said voluntarily to cause grievous hurt except when he both,
causes grievous hurt and intends or knows himself to be likely to cause grievous hurt. But he,
"is said voluntarily to cause grievous hurt, if intending or knowing himself to be likely to cause",
grievous hurt of one kind; he actually causes grievous hurt of another kind.,
LLaatteessttLLaawwss..ccoomm,
238,
"Illustration A, intending or knowing himself to be likely permanently to disfigure Z’s face, gives",
"Z a blow which does not permanently disfigure Z’s face, but which cause Z to suffer severe",
bodily pain for the space of twenty days. A has voluntarily caused grievous hurt.,
Comments Explanation The offence of grievous hurt is not caused unless the offender both,
"causes grievous hurt and intends, or knows himself to be likely, to cause grievous hurt;",
"Ramkaran Mohton v. State, AIR 1958 Pat 452.",
Section 323. Punishment for voluntarily,
causing hurt,
"Whoever, except in the case provided for by section 334,voluntarily causes hurt, shall be",
"punished with imprisonment of either description for a term which may extend to one year, or",
"with fine which may extend to one thousand rupees, or with both. CLASSIFICATION OF",
"OFFENCE Punishment—Imprisonment for 1 year, or fine of 1,000 rupees, or both—Non-",
cognizable—Bailable—Triable by any Magistrate—Compounded by the person to whom the,
hurt is caused.,
"Comments Essential ingredients of an offence If hurt actually caused is simple, a person",
cannot be held guilty of voluntarily causing grievous hurt even if it was in his contemplation. If,
"he intended, or knew himself to be likely to cause only simple hurt, he cannot be convicted for",
"the offence under section 325 even if the resultant hurt was grievous. In other words, to",
"constitute the offence of voluntarily causing hurt, these must be complete correspondence",
between the result and the intention or the knowledge of the accused; Ramkaran Mohton v.,
"State, AIR 1958 Pat 452.",
Section 324. Voluntarily causing hurt by,
dangerous weapons or means,
"Whoever, except in the case provided for by section 334, voluntarily causes hurt by means of",
"any instrument for shooting, stabbing or cutting, or any instrument which, used as weapon of",
"offence, is likely to cause death, or by means of fire or any heated substance, or by means of",
LLaatteessttLLaawwss..ccoomm,
239,
"any poison or any corrosive substance, or by means of any explosive substance or by means",
"of any substance which it is deleterious to the human body to inhale, to swallow, or to receive",
"into the blood, or by means of any animal, shall be punished with imprisonment of either",
"description for a term which may extend to three years, or with fine, or with both.",
"CLASSIFICATION OF OFFENCE Punishment—Imprisonment for 3 years, or fine,",
or both—Cognizable—Non-Bailable—Triable by any Magistrate—Compoundable by the,
person to whom hurt is caused with the permission of the court.,
Section 325. Punishment for voluntarily,
causing grievous hurt,
"Whoever, except in the case provided for by section 335, voluntarily causes grievous hurt,",
shall be punished with imprisonment of either description for a term which may extend to seven,
"years, and shall also be liable to fine.",
"CLASSIFICATION OF OFFENCE Punishment—Imprisonment for 7 years, and fine—",
Cognizable—Bailable—Triable by any Magistrate—Compoundable by the person to whom,
hurt is caused with the permission of the court.,
Section 326. Voluntarily causing grievous,
hurt by dangerous weapons or means,
"Whoever, except in the case provided for by section 335, voluntarily causes grievous hurt by",
"means of any instrument for shooting, stabbing or cutting, or any instrument which, used as a",
"weapon of offence, is likely to cause death, or by means of fire or any heated substance, or",
"by means of any poison or any corrosive substance, or by means of any explosive substance,",
"or by means of any substance which it is deleterious to the human body inhale, to swallow, or",
"to receive into the blood, or by means of any animal, shall be punished with [imprisonment for",
1,
"life], or with imprisonment of either description for a term which may extend to ten years, and",
shall also be liable to fine.,
LLaatteessttLLaawwss..ccoomm,
240,
"CLASSIFICATION OF OFFENCE Punishment—Imprisonment for life, or imprisonment for",
10 years and fine—Cognizable—Non-bailable—Triable by Magistrate of the first class—Non-,
compoundable. ————————–,
"1. Subs. by Act 26 of 1955, sec. 117 and Sch., for “transportation for life” (w.e.f. 1-1-",
1956).,
1[Section 326A. Voluntarily causing grievious hurt by use of acid etc.,
"Whoever causes permanent or partial damage or deformity to, or burns or maims or disfigures",
"or disables, any part or parts of the body of a person or causes grievous hurt by throwing acid",
"on or by administering acid to that person, or by using any other means with the intention of",
"causing or with the knowledge that he is likely to cause such injury or hurt, shall be punished",
with imprisonment of either description for a term which shall not be less than ten years but,
"which may extend to imprisonment for life, and with fine:",
Provided that such fine shall be just and reasonable to meet the medical expenses of the,
treatment of the victim:,
Provided further that any fine imposed under this section shall be paid to the victim.,
Section 326B. Voluntarily throwing or attempting to throw acid-,
Whoever throws or attempts to throw acid on any person or attempts to administer acid to any,
"person, or attempts to use any other means, with the intention of causing permanent or partial",
damage or deformity or burns or maiming or disfigurement or disability or grievous hurt to that,
"person, shall be punished with imprisonment of either description for a term which shall not",
"be less than five years but which may extend to seven years, and shall also be liable to fine.",
"Explanation 1.—For the purposes of section 326A and this section, “acid” includes any",
"substance which has acidic or corrosive character or burning nature, that is capable of causing",
bodily injury leading to scars or disfigurement or temporary or permanent disability.,
"Explanation 2.— For the purposes of section 326A and this section, permanent or partial",
damage or deformity shall not be required to be irreversible.] —,
"1 Inserted by Section 5 of ‘The Criminal Law (Amendment) Act, 2013′",
LLaatteessttLLaawwss..ccoomm,
241,
Section 327. Voluntarily causing hurt to,
"extort property, or to constrain to an illegal",
act,
"Whoever voluntarily causes hurt, for the purpose of extorting from the sufferer, or from any",
"person interested in the sufferer, any property or valuable security, or of constraining the",
sufferer or any person interested in such sufferer to do anything which is illegal or which may,
"facilitate the commission of an offence, shall be punished with imprisonment of either",
"description for a term which may extend to ten years, and shall also be liable to fine.",
CLASSIFICATION OF OFFENCE Punishment—Imprisonment for 10 years and fine—,
Cognizable—Non-bailable—Triable by Magistrate of the first class—Non-compoundable.,
Section 328. Causing hurt by means of,
"poison, etc., with intent to commit an",
offence,
"Whoever administers to or causes to be taken by any person any poison or any stupefying,",
"intoxicating or unwholesome drug, or other thing with intent to cause hurt such person, or with",
intent to commit or to facilitate the commission of an offence or knowing in to be likely that he,
"will thereby cause hurt, shall be punished with imprisonment of either description for a term",
"which may extend to ten years, and shall also be liable to fine.",
CLASSIFICATION OF OFFENCE Punishment—Imprisonment for 10 years and fine—,
Cognizable—Non-bailable—Triable by Court of Session—Non-compoundable.,
Section 329. Voluntarily causing grievous,
"hurt to extort property, or to constrain to an",
illegal act,
Whoever voluntarily causes grievous hurt for the purpose of extorting from the sufferer or from,
"any person interested in the sufferer any property or valuable security, or of constraining the",
LLaatteessttLLaawwss..ccoomm,
242,
sufferer or any person interested in such sufferer to do anything that is illegal or which may,
"facilitate the commission of an offence, shall be punished with [imprisonment for life], or",
1,
"imprisonment of either description for a term which may extend to ten years, and shall also be",
liable to fine.,
"CLASSIFICATION OF OFFENCE Punishment—Imprisonment for life, or imprisonment for",
10 years and fine—Cognizable—Non-bailable—Triable by Court of Session—Non-,
compoundable. —————————,
"1. Subs. by Act 26 of 1955, sec. 117 and Sch., for “transportation for life” (w.e.f. 1-1-",
1956).,
Section 330. Voluntarily causing hurt to,
"extort confession, or to compel restoration",
of property,
Whoever voluntarily causes hurt for the purpose of extorting from the sufferer or from any,
"person interested in the sufferer, any confession or any information which may lead to the",
"detection of an offence or misconduct, or for the purpose of constraining the sufferer or any",
person interested in the sufferer to restore or to cause the restoration of any property or,
"valuable security or to satisfy any claim or valuable security, shall be punished with",
"imprisonment of either description for a term which may extend to seven years, shall also be",
liable to fine.,
"Illustrations (a) A, a police-officer, tortures Z in order to induce Z to confess that he committed",
a crime. A guilty of an offence under this section.,
"(b) A, a police officer, tortures B to induce him to point out where certain stolen property is",
deposited. A is guilty of an offence under this section.,
"(c) A, a revenue officer, tortures Z in order to compel him to pay certain arrears of revenue",
due from Z. A is guilty of an offence under this section.,
LLaatteessttLLaawwss..ccoomm,
243,
"(d) A, a zamindar, tortures a raiyat in order to compel him to pay his rent. A is guilty of an",
offence under this section.,
CLASSIFICATION OF OFFENCE Punishment—Imprisonment for 7 years and fine—,
Cognizable—Bailable—Triable by Magistrate of the first class—Non-compoundable.,
Section 331. Voluntarily causing grievous,
"hurt to extort confession, or to compel",
restoration of property,
Whoever voluntarily causes grievous hurt for the purpose of extorting from the sufferer or from,
any person interested in the sufferer any confession or any information which may lead to the,
"detection of an offence or misconduct, or for the purpose of constraining the sufferer or any",
person interested in the sufferer to restore or to cause the restoration of any property or,
"valuable security, or to satisfy any claim or demand or to give information which may lead to",
"the restoration of any property or valuable security, shall be punished with imprisonment of",
"either description for a term which may extend to ten years, and shall also be liable to fine.",
CLASSIFICATION OF OFFENCE Punishment—Imprisonment for 10 years and fine—,
Cognizable—Non-bailable—Triable by Court of Session—Non-compoundable.,
Section 332. Voluntarily causing hurt to,
deter public servant from his duty,
Whoever voluntarily causes hurt to any person being a public servant in the discharge of his,
"duty as such public servant, or with intent to prevent or deter that person or any other public",
"servant from discharging his duty as such public servant, or in consequence of anything done",
or attempted to be done by that person in the lawful discharge of his duty as such public,
"servant, shall be punished with imprisonment of either description for a term which may extend",
"to three years, or with fine, or with both.",
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"CLASSIFICATION OF OFFENCE Punishment—Imprisonment for 3 years, or fine, or both—",
Cognizable—Non-Bailable—Triable by Magistrate of the first class—Non-compoundable.,
Section 333. Voluntarily causing grievous,
hurt to deter public servant from his duty,
Whoever voluntarily causes grievous hurt to any person being a public servant in the discharge,
"of his duty as such public servant, or with intent to prevent or deter that person or any other",
"public servant from discharging his duty as such public servant, or in consequence of anything",
done or attempted to be done by that person in the lawful discharge of his duty as such public,
"servant, shall be punished with imprisonment of either description for a term which may extend",
"to ten years, and shall also be liable to fine.",
Section 334. Voluntarily causing hurt on,
provocation,
"Whoever voluntarily causes hurt on grave and sudden provocation, if he neither intends nor",
knows himself to be likely to cause hurt to any person other than the person who gave the,
"provocation, shall be punished with imprisonment of either description for a term which may",
"extend to one month, or with fine which may extend to five hundred rupees, or with both.",
"CLASSIFICATION OF OFFENCE Punishment—Imprisonment for 1 month, or fine of 500",
"rupees, or both—Non-cognizable—Bailable—Triable by any Magistrate—Compoundable by",
the person to whom the hurt is caused.,
Section 335. Voluntarily causing grievous,
hurt on provocation,
"Whoever [voluntarily] causes grievous hurt on grave and sudden provocation, if he neither",
1,
intends nor knows himself to be likely to cause grievous hurt to any person other than the,
"person who gave the provocation, shall be punished with imprisonment of either description",
for a term which may extend to four years or with fine which may extend to two thousand,
LLaatteessttLLaawwss..ccoomm,
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"rupees, or with both Explanation The last two sections are subject to the same provisos as",
"Explanation 1, section 300.",
"CLASSIFICATION OF OFFENCE Punishment—Imprisonment for 4 years, or fine of 2000",
"rupees, or both—Cognizable-Bailable—Triable by Magistrate of the first class—",
Compoundable by the person to whom hurt is caused with the permission of the court. ———,
—————-,
"1. Ins. by Act 8 of 1882, sec. 8.",
Section 336. Act endangering life or,
personal safety of others,
Whoever does any act so rashly or negligently as to endanger human life or the personal,
"safety of others, shall be punished with imprisonment of either description for term which may",
"extend to three months, or with fine which may extend to two hundred and fifty rupees, or with",
both.,
"CLASSIFICATION OF OFFENCE Punishment—Imprisonment for 3 months, or fine of 250",
"rupees, or both—Cognizable—Bailable—Triable by any Magistrate—Non-compoundable.",
Section 337. Causing hurt by act,
endangering life or personal safety of,
others,
Whoever causes hurt to any person by doing any act so rashly or negligently as to endanger,
"human life, or the personal safety of others, shall be punished with imprisonment of either",
"description for term which may extend to six months, or with fine which may extend to five",
"hundred rupees, or with both.",
"CLASSIFICATION OF OFFENCE Punishment—Imprisonment for 6 months, or fine of 500",
"rupees, or both—Cognizable—Bailable—Triable by any Magistrate—Compoundable by the",
person to whom hurt is caused with the permission of the court.,
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Section 338. Causing grievous hurt by act,
endangering life or personal safety of,
others,
Whoever causes grievous hurt to any person by doing any act so rashly or negligently as to,
"endanger human life, or the personal safety of others, shall be punished with imprisonment of",
"either description for a term which may extend to two years, or with fine which may extend to",
"one thousand rupees, or with both.",
"CLASSIFICATION OF OFFENCE Punishment—Imprisonment for 2 years, or fine of 1,000",
"rupees, or both—Cognizable—Bailable—Triable by any Magistrate—Compoundable by the",
person to whom hurt is caused with the permission of the court.,
Section 339. Wrongful restraint,
Whoever voluntarily obstructs any person so as to prevent that person from proceeding in any,
"direction in which that person has right to proceed, is said wrongfully to restrain that person.",
Exception: – The obstruction of a private way over land or water which a person in good faith,
"believes himself to have lawful right to obstruct, is not an offence within the meaning of this",
section.,
Illustration A obstructs a path along which Z has a right to pass. A not believing in good faith,
that he has a right to stop the path. Z is thereby prevented from passing. A wrongfully restrains,
Z.,
Section 340. Wrongful confinement.,
Whoever wrongfully restrains any person in such a manner as to prevent that person from,
"proceedings beyond certain circumscribing limits, is said “wrongfully to confine” that person.",
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"Illustrations (a) A causes Z to go within a walled space, and locks Z in. A is thus prevented",
from proceeding in any direction beyond the circumscribing line of wall. A wrongfully confines,
Z.,
"(b) A places men with firearms at the outlets of a building, and tells Z that they will fire at Z if",
Z attempts to leave the building. A wrongfully confines Z.,
Section 341. Punishment for wrongful,
restraint,
Whoever wrongfully restrains any person shall be punished with simple imprisonment for a,
"term, which may extend to one month, or with fine which may extend to five hundred rupees,",
or with both.,
"CLASSIFICATION OF OFFENCE Punishment—Simple imprisonment for 1 month, or fine",
"of 500 rupees, or both—Cognizable—Bailable—Triable by any Magistrate—Compoundable",
by the person restrained or confined.,
Section 342. Punishment for wrongful,
Confinement,
Whoever wrongfully confines any person shall be punished with imprisonment of either,
"description for a term which may extend to one year, or with fine which may extend to one",
"thousand rupees, or with both.",
"CLASSIFICATION OF OFFENCE Punishment—Imprisonment for 1 year, or fine of 1,000",
"rupees, or both—Cognizable—Bailable—Triable by any Magistrate—Compoundable by the",
person restrained or confined.,
Section 343. Wrongful confinement for,
three or more days,
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"Whoever wrongfully confines any person for three days, or more, shall be punished with",
"imprisonment of either description for a term which may extend to two years, or with fine, or",
with both.,
"CLASSIFICATION OF OFFENCE Punishment—Imprisonment for 2 years, or fine, or both—",
Cognizable—Bailable—Triable by any Magistrate—Compoundable by the person confined,
with the permission of the court.,
Section 344. Wrongful confinement for ten,
or more days,
"Whoever wrongfully confines any person for ten days, or more, shall be punished with",
"imprisonment of either description for a term which any extend to three years, and shall also",
be liable to fine.,
CLASSIFICATION OF OFFENCE Punishment—Imprisonment for 3 years and fine—,
Cognizable—Bailable—Triable by any Magistrate—Compoundable by the person confined,
with the permission of court.,
Section 345. Wrongful confinement of,
person for whose liberation writ has been,
issued,
"Whoever keeps any person in wrongful confinement, knowing that a writ for the liberation of",
"that person has been duly issued, shall be punished with imprisonment of either description",
for a term which may extend to two years in addition to any term of imprisonment to which he,
may be liable under any other section of this chapter.,
CLASSIFICATION OF OFFENCE Punishment—Imprisonment for 2 years in addition to,
imprisonment under any other section—Cognizable—Bailable—Triable by Magistrate of the,
first class—Non-compoundable.,
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Section 346. Wrongful confinement in,
secret,
Whoever wrongfully confines any person in such manner as to indicate an intention that the,
confinement of such person may not be known to any person interested in the person so,
"confined, or to any public servant, or that the place of such confinement may not be known to",
"or discovered by any such person or public servant as hereinbefore mentioned, shall be",
punished with imprisonment of either description for a term which may extend to two years in,
addition to any other punishment to which he may be liable for such wrongful confinement.,
"CLASSIFICATION OF OFFENCE Punishment—Imprisonment for 2 years, in addition to",
imprisonment under any other section—Cognizable—Bailable—Triable by Magistrate of the,
first class—Compoundable by the person confined with the permission of the court.,
Section 347. Wrongful confinement to,
"extort property, or constrain to illegal act",
"Whoever wrongfully confines any person for the purpose of extorting from the person confined,",
"or from any person interested in the person confined, any property or valuable security or of",
constraining the person confined or any person interested in such person to do anything illegal,
"or to give any information which may facilitate the commission of an offence, shall be punished",
"with imprisonment of either description for a term which may extend to three years, and shall",
also be liable to fine.,
CLASSIFICATION OF OFFENCE Punishment—Imprisonment for 3 years and fine—,
Cognizable—Bailable—Triable by any Magistrate—Non-compoundable.,
Section 348. Wrongful confinement to,
"extort confession, or compel restoration of",
property,
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Whoever wrongfully confines any person for the purpose of extorting from the person confined,
or any person interested in the person confined any confession or any information which may,
"led to the detection of an offence or misconduct, or for the purpose of constraining the person",
confined or any person interested in the person confined to restore or to cause the restoration,
"of any property or valuable security or to satisfy any claim or demand, or to give information",
"which may lead to the restoration of any property or valuable security, shall be punished with",
"imprisonment of either description for a term which may extend to three years, and shall also",
be liable to fine.,
CLASSIFICATION OF OFFENCE Punishment—Imprisonment for 3 years and fine—,
Cognizable—Bailable—Triable by any Magistrate—Non-compoundable.,
Section 349. Force,
"A person is said to use force to another if he causes motion, change of motion, or cessation",
"of motion to that other, or if he causes to any substance such motion, or change of motion, or",
"cessation of motion as brings that substance into contact with any part of that other’s body, or",
"with anything which that other is wearing or carrying, or with anything so situated that such",
contact affects that other’s sense of feeling:,
"Provided that the person causing the motion, or change of motion, or cessation of motion,",
"causes that motion, change of motion, or cessation of motion in one of the three ways",
hereinafter described.,
First.— By his own bodily power.,
Secondly.—By disposing any substance in such a manner that the motion or change or,
"cessation of motion takes place without any further act on his part, or on the part of any other",
person.,
"Thirdly.— By inducing any animal to move, to change its motion, or to cease to move.",
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Section 350. Criminal force,
"Whoever intentionally uses force to any person, without that person’s consent, in order to the",
"committing of any offence, or intending by the use of such force to cause, or knowing it to be",
"likely that by the use of such force he will cause injury, fear or annoyance to the person to",
"whom the force is used, is said to use criminal force to that other.",
"Illustrations (a) Z is sitting in a moored boat on a river. A unfastens the moorings, and thus",
intentionally causes the boat to drift down the stream. Here A intentionally causes motion to,
"Z, and he does this by disposing substances in such a manner that the motion is produced",
"without any other act on any person’s part, A has therefore intentionally used force to Z; and",
"if he has done so without Z’s consent, in order to the committing of any offence, or intending",
"or knowing in to be likely that this use of force will cause injury, fear or annoyance to Z, A has",
used criminal force to Z.,
"(b) Z is reading in a chariot. A lashes Z’s horses, and thereby causes them to quicken there",
pace. Here Z has caused change of motion to Z by inducing the animals to change their,
"motion. A has therefore used force to Z; and if A has done this without Z’s consent, intending",
"or knowing it to be likely that he may thereby injure, frighten or annoy Z, A has used criminal",
force to Z.,
"(c) Z is riding in a palanquin. A, intending to rob Z, seizes the pole and stops the palanquin.",
"Here A has caused therefore used force to Z; and as A has acted thus intentionally, without",
"Z’s consent, in order to the commission of an offence. A has used criminal force to Z.",
(d) A intentionally pushes against Z in the street. Here A has by his own bodily power moved,
his own person so as to bring it into contact with Z. He has therefore intentionally used force,
"to Z; and if he has done so without Z’s consent, intending or knowing it to be likely that he may",
"thereby injure, frighten or annoy Z, he has used criminal force to Z.",
(e) A throws a stone intending or knowing it to be likely that the stone will be thus brought in,
"to contact with Z, or with Z’s clothes, or with something carried by Z, or that it will strike water",
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"and dash up the water against Z’s clothes or something carried by Z. Here, if the throwing of",
"the stone produce the effect of causing any substance to come into contact with Z, or Z’s",
"clothes. A has used force to Z; and if he did so without Z’s consent, intending thereby to injure,",
"frighten or annoy Z, he has criminal force by Z.",
"(f) A intentionally pulls up a woman’s veil. Here A intentionally uses force to her, and if he does",
"so without her consent intending or knowing it to be likely that he may thereby injure, frighten",
"or annoy her, he has used criminal force to her.",
"(g) Z is bathing, A pours into the bath water which he knows to be boiling. Here A intentionally",
by his own bodily power causes such motion in the boiling water as brings that water into,
"contact with Z, or with that water so situated that such contact must affect Z’s sense of feeling;",
A has therefore intentionally used force to Z; and he has done this without Z’s consent,
"intending or knowing it to be likely that he may thereby cause injury, fear, or annoyance to Z,",
A has used criminal force.,
"(h) A incites a dog to spring upon Z, without Z; s consent. Here, if A intends to cause injury,",
"fear or annoyance to Z, he uses criminal force to Z.",
Section 351. Assault,
"Whoever makes any gesture, or any preparation intending or knowing it to be likely that such",
gesture or preparation will cause any person present to apprehend that he who makes that,
"gesture or preparation is about to use criminal force to that person, is said to commit as",
assault.,
Explanation Mere words do not amount to an assault. But the words which a person uses may,
give to his gestures or preparation such a meaning as may make those gestures or,
preparations amount to an assault.,
"Illustrations (a) A shakes his fist at Z, intending or knowing it to be likely that he may thereby",
"cause Z to believe that A is about to strike Z, A has committed an assault.",
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253,
"(b) A begins to unloose the muzzle of a ferocious dog, intending or knowing it to be likely that",
he may thereby cause Z to believe that he is about to cause the dog to attack Z. A has,
committed an assault upon Z.,
"(c) A takes up a stick, saying to Z, “I will give you a beating” Here, though the words used by",
"A could in no case amount to an assault, and though the mere gesture, unaccompanied by",
"any other circumstances, might not amount to an assault, the gesture explained by the words",
may amount to an assault.,
Section 352. Punishment for assault or,
criminal force otherwise than on grave,
provocation,
Whoever assaults or uses criminal force to any person otherwise than on grave and sudden,
"provocation given by that person, shall be punished with imprisonment of either description",
"for a term which may extend to three months, or with fine which may extend to five hundred",
"rupees, or with both.",
Explanation Grave and sudden provocation will not mitigate the punishment for an offence,
under this section. If the provocation is sought or voluntarily provoked by the offender as an,
"excuse for the offence, or if the provocation is given by anything done in obedience to the law,",
"or by a public servant, in the lawful exercise of the powers of such public servant, or if the",
provocation is given by anything done in the lawful exercise of the right of private defence.,
"Whether the provocation was grave and sudden enough to mitigate the offence, is a question",
of fact.,
"CLASSIFICATION OF OFFENCE Punishment—Imprisonment for 3 months, or fine of 500",
"rupees, or both—Non-Cognizable—Bailable—Triable by any Magistrate—Compoundable by",
the person assaulted or to whom criminal force is used.,
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Comments Thumb impression taken forcibly Forcibly taking the thumb-impression of a,
person on a blank piece of paper amounts to an offence of assault or use of criminal force,
"punishable under this section; Jadunandan Singh v. Emperor, AIR 1941 Pat 129",
Section 353. Assault or criminal force to,
deter public servant from discharge of his,
duty,
Whoever assaults or uses criminal force to any person being a public servant in the execution,
"of his duty as such public servant, or with intent to prevent or deter that person from",
"discharging his duty as such public servant, or in consequence of anything done or attempted",
"to be done by such person in the lawful discharge of his duty as such public servant, shall be",
"punished with imprisonment of either description for a term which may extend to two years, or",
"with fine, or with both.",
"CLASSIFICATION OF OFFENCE Punishment—Imprisonment for 2 years, or fine, or both—",
Cognizable—Non-Bailable—Triable by any Magistrate—Non-compoundable.,
Section 354. Assault or criminal force to,
woman with intent to outrage her modesty,
"Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to",
"be likely that he will thereby outrage her modesty, 1[shall be punished with imprisonment of",
either description for a term which shall not be less than one year but which may extend to,
"five years, and shall also be liable to fine.]",
"CLASSIFICATION OF OFFENCE Punishment—Imprisonment for 2 years, or fine, or both—",
Cognizable—Bailable—Triable by any Magistrate—Non-compoundable.,
"State Amendments Andhra Pradesh For section 354, the following section shall be",
"substituted, namely—354- —Whoever assaults or",
Assault or criminal force to woman with intent to outrage her modesty.,
uses criminal force to any woman intending to outrage or knowing it to be likely that he will,
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255,
"thereby outrage her modesty, shall be punished with imprisonment of either description for a",
term which shall not be less than five years but which may extend to seven years and shall,
also be liable to fine:,
"Provided that the court may, for adequate and special reasons to be mentioned in the",
"judgment, impose a sentence of imprisonment of either description for a term which may be",
less than five years but which shall not be less than two years. [Vide Andhra Pradesh Act 6 of,
1991].,
"Madhya Pradesh After section 354, the following new section shall be inserted, namely—",
354A. Assault or use Criminal force to woman with intent to disrobe her.—Whoever assaults,
or uses criminal force to any woman or abets or conspires to assault or uses such criminal,
"force to any woman intending to outrage or knowing it to be likely that by such assault, he will",
thereby outrage or causes to be outraged the modesty of the woman by disrobing or compel,
"her to be naked on any public place, shall be punished with imprisonment of either description",
for a term which shall not be less than one year but which may extend to ten years and shall,
"also be liable to fine.”. [Vide Madhya Pradesh Act 14 of 2004, sec. 3 (w.e.f. 2-12-2004)].",
"Orissa In the First Schedule to the Code of Criminal Procedure, 1973 in the entry under column",
5 relating to section 354 of the Indian Penal Code 1860 for the word ‘bailable’ the word ‘non-,
"bailable’ shall be substituted. [Vide Orissa Act 6 of 1995, sec. 3 (w.e.f. 10-3-1995)].",
Comments Ingredients What constitutes an outrage to female modesty is nowhere defined.,
The essence of a woman’s modesty is her sex. The culpable intention of the accused is the,
"crux of the matter. The reaction of the woman is very relevant, but its absence is not always",
decisive. Modesty in this section is an attribute associated with female human beings as a,
"class. It is a virtue which attaches to a female owing to her sex. The act of pulling a woman,",
"removing her saree, coupled with a request for sexual intercourse, is such as would be an",
"outrage to the modesty of a woman; and knowledge, that modesty is likely to be outraged, is",
sufficient to constitute the offence without any deliberate intention having such outrage alone,
"for its object. As indicated above, the word ‘modesty’ is not defined in I.P.C.; Raju Pandurang",
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256,
"Mahale v. State of Maharashtra, AIR 2004 SC 1677. —————————————————",
"———- 1 Inserted by Section 6 of ‘The Criminal Law (Amendment) Act, 2013′",
1[Section 354A. Sexual harassment and,
punishment for Sexual Harassment-,
(1) A man committing any of the following acts—,
(i) physical contact and advances involving unwelcome and explicit sexual overtures; or,
(ii) a demand or request for sexual favours; or,
(iii) showing pornography against the will of a woman; or,
"(iv) making sexually coloured remarks, shall be guilty of the offence of sexual harassment.",
(2) Any man who commits the offence specified in clause (i) or clause (ii) or clause (iii) of sub-,
section (1) shall be punished with rigorous imprisonment for a term which may extend to three,
"years, or with fine, or with both.",
(3) Any man who commits the offence specified in clause (iv) of sub-section (1) shall be,
"punished with imprisonment of either description for a term which may extend to one year, or",
"with fine, or with both.",
Section 354B. Assault or use of criminal,
force to woman with intent to disrobe-,
Any man who assaults or uses criminal force to any woman or abets such act with the intention,
of disrobing or compelling her to be naked shall be punished with imprisonment of either,
description for a term which shall not be less than three years but which may extend to seven,
"years, and shall also be liable to fine.",
Section 354C. Voyeurism-,
"Any man who watches, or captures the image of a woman engaging in a private act in",
circumstances where she would usually have the expectation of not being observed either by,
the perpetrator or by any other person at the behest of the perpetrator or disseminates such,
image shall be punished on first conviction with imprisonment of either description for a term,
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257,
"which shall not be less than one year, but which may extend to three years, and shall also be",
"liable to fine, and be punished on a second or subsequent conviction, with imprisonment of",
"either description for a term which shall not be less than three years, but which may extend to",
"seven years, and shall also be liable to fine.",
"Explanation 1.—For the purpose of this section, “private act” includes an act of watching carried",
"out in a place which, in the circumstances, would reasonably be expected to provide privacy",
"and where the victim’s genitals, posterior or breasts are exposed or covered only in",
underwear; or the victim is using a lavatory; or the victim is doing a sexual act that is not of a,
kind ordinarily done in public.,
"Explanation 2.—Where the victim consents to the capture of the images or any act, but not to",
"their dissemination to third persons and where such image or act is disseminated, such",
dissemination shall be considered an offence under this section.,
Section 354D. Stalking-,
(1) Any man who—,
"(i) follows a woman and contacts, or attempts to contact such woman to foster personal",
interaction repeatedly despite a clear indication of disinterest by such woman; or,
"(ii) monitors the use by a woman of the internet, email or any other form of electronic",
"communication, commits the offence of stalking:",
Provided that such conduct shall not amount to stalking if the man who pursued it proves,
that—,
(i) it was pursued for the purpose of preventing or detecting crime and the man accused of,
stalking had been entrusted with the responsibility of prevention and detection of crime by the,
State; or,
(ii) it was pursued under any law or to comply with any condition or requirement imposed,
by any person under any law; or,
(iii) in the particular circumstances such conduct was reasonable and justified.,
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258,
(2) Whoever commits the offence of stalking shall be punished on first conviction with,
"imprisonment of either description for a term which may extend to three years, and shall also",
"be liable to fine; and be punished on a second or subsequent conviction, with imprisonment",
"of either description for a term which may extend to five years, and shall also be liable to fine.]",
—————————————————————-,
"1. Inserted by Section 7 of ‘The Criminal Law (Amendment) Act, 2013′",
Section 355. Assault or criminal force with,
"intent to dishonour person, otherwise than",
on grave provocation,
"Whoever assaults or uses criminal force to any person, intending thereby to dishonour that",
"person, otherwise than on grave and sudden provocation given by that person, shall be",
"punished with imprisonment for a term which may extend to two years, or with fine, or with",
both.,
"CLASSIFICATION OF OFFENCE Punishment—Imprisonment for 2 years, or fine, or both—",
Non-Cognizable—Bailable—Triable by any Magistrate—Compounded by the person,
assaulted or to whom criminal force is used.,
"State Amendment Andhra Pradesh Offence under section 355 is non-cognizable, bailable",
"and triable by any Magistrate. [Vide Andhra Pradesh Act 3 of 1992, sec. 2 (w.e.f. 15-2-1992)].",
Section 356. Assault or criminal force in,
attempt to commit theft of property carried,
by a person,
"Whoever assault or uses criminal force to any person, in attempting to commit theft on any",
"property which that person is then wearing or carrying, shall be punished with imprisonment",
"of either description for a term which may extend to two years, with fine, or with both.",
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259,
"CLASSIFICATION OF OFFENCE Punishment—Imprisonment for 2 years, or fine, or both—",
Cognizable—Bailable—Triable by any Magistrate—Non-compoundable.,
Section 357. Assault or criminal force in,
attempt wrongfully to confine a person,
"Whoever assaults or uses criminal force to any person, in attempting wrongfully to confine that",
"person, shall be punished with imprisonment of either description for a term which may extend",
"to one year, or with fine which may extend to one thousand rupees, or with both.",
"CLASSIFICATION OF OFFENCE Punishment—Imprisonment for 1 year, or fine of 1,000",
"rupees, or both—Cognizable—Bailable—Triable by any Magistrate—Compoundable by the",
person assaulted or to whom the force was used with the permission of the court.,
Section 358. Assault or criminal force on,
grave provocation,
Whoever assaults or uses criminal force to any person on grave and sudden provocation given,
"by that person, shall be punished with simple imprisonment for a term which may extend to",
"one month, or with fine which may extend to two hundred rupees, or with both.",
Explanation The last section is subject to the same Explanation as section 352.,
"CLASSIFICATION OF OFFENCE Punishment—Simple imprisonment for one month, or",
"fine of 200 rupees, or both—Non-cognizable—Bailable—Triable by any Magistrate—",
Compoundable by the person assaulted or to whom criminal force is used.,
Section 359. Kidnapping,
"Kidnapping is of two kinds: kidnapping from [India], and kidnapping from lawful guardianship.",
1,
———————–,
"1. The words “British India” have successively been subs. by the A.O. 1948, the A.O.",
"1950 and Act 3 of 1951, sec. 3 and Sch. to read as above.",
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Section 360. Kidnapping from India,
"Whoever conveys any person beyond the limits of [India] without the consent of that person,",
1,
"or of some person legally authorised to consent on behalf of that person, is said to kidnap that",
person from [India]. ———————-,
1,
"1. The words “British India” have successively been subs. by the A.O. 1948, the A.O.",
"1950 and Act 3 of 1951, sec. 3 and Sch. to read as above.",
Section 361. Kidnapping from lawful,
guardianship,
"Whoever takes or entices any minor under [sixteen] years of age if a male, or under [eighteen]",
1 2,
"years of age if a female, or any person of unsound mind, out of the keeping of the lawful",
"guardian of such minor or person of unsound mind, without the consent of such guardian, is",
said to kidnap such minor or person from lawful guardianship. Explanation The words “lawful,
guardian” in this section include any person lawfully entrusted with the care or custody of such,
minor or other person. Exception This section does not extend to the act of any person who,
"in good faith believes himself to be the father of an illegitimate child, or who in good faith",
"believes himself to be entitled to lawful custody of such child, unless such act is committed for",
an immoral or unlawful purpose. STATE AMENDMENT Manipur In section 361 for the,
"words ‘eighteen’ substitute the word ‘fifteen’. [Vide Manipur Act 30 of 1950, sec. 3 (w.e.f. 16-",
"4-1950), read with Act 81 of 1971, sec. 3 (w.e.f. 25-1-1972)]. COMMENTS Inducement not",
"immediate cause The accused was charged for kidnapping a minor girl, below 15 years of age",
from the lawful guardianship of her father. It was established that the accused had an earlier,
stage solicited or induced minor girl to leave her father’s protection by conveying or indicating,
"an encouraging suggestion, that he would give her shelter. Holding the accused liable for",
"kidnapping under section 363, the Supreme Court said that the mere circumstances that his",
act was not the immediate cause of her leaving her parental home or guardian’s custody would,
constitute no valid defence and would not absolve him from the offence of kidnapping. The,
question truly falls for determination on the facts and circumstances of each case; Thakorilal,
LLaatteessttLLaawwss..ccoomm,
261,
"D Vadgama v. State of Gujarat, AIR 1973 SC 2314: (1973) 2 SCC 413. Lawful",
"guardian Where facts indicate that a girl left her father’s protection, knowing and having",
"capacity to know the full import of what she was doing and voluntarily joined the accused, the",
"offence of kidnapping cannot be said to have been made out; S. Varadrajan v. State of Madras,",
AIR 1965 SC 942. Use of word ‘keeping’: Meaning of The use of the word “keeping” in the,
"context connotes the idea of charge, protection, maintenance and control; further the",
guardian’s charge and control appears to be compatible with the independence of action and,
"movement in the minor, the guardian’s protection and control of the minor being available,",
whenever necessity arises. On plain reading of this section the consent of the minor who is,
taken or enticed is wholly immaterial: it is only the guardian’s consent which takes the case,
out of its purview. Nor is it necessary that the taking or enticing must be shown to have been,
by means of force or fraud. Persuasion by the accused person which creates willingness on,
the part of the minor to be taken out of the keeping of the lawful guardian would be sufficient,
"to attract the section; Prakash v. State of Haryana, AIR 2004 SC 227. ————————",
"1. Subs. by Act 42 of 1949, sec. 2, for “fourteen”.",
"2. Subs. by Act 42 of 1949, sec. 2, for “sixteen”.",
Section 362. Abduction,
"Whoever by force compels, or by any deceitful means induces, any person to go from any",
"place, is said to abduct that person. COMMENTS Abduction distinguished from",
kidnapping It is well known that the ingredients of the two offences—‘kidnapping’ and,
‘abduction’—are entirely different. These are two distinct offences; Abhaya Jena v. State of,
"Orissa, (1997) Crimes 531 (Ori).",
Section 363. Punishment for kidnapping,
"Whoever kidnaps any person from [India] or from lawful guardianship, shall be punished with",
1,
"imprisonment of either description for a term which may extend to seven years, and shall also",
be liable to fine.CLASSIFICATION OF OFFENCE Punishment—Imprisonment for 7 years,
and fine—Cognizable—Bailable—Triable by Magistrate of the first class—Non-,
LLaatteessttLLaawwss..ccoomm,
262,
compoundable. State Amendment Uttar Pradesh In Uttar Pradesh the offence under section,
"363, I.P.C. is non-bailable. [Vide Uttar Pradesh Act 1 of 1984, sec. 12 (w.e.f. 1-5-1984)]. ——",
——————-,
"1. The words “British India” have successively been subs. by the A.O. 1948, the A.O.",
"1950 and Act 3 of 1951, sec. 3 and Sch., to read as above.",
Section 363A. Kidnapping or maiming a,
minor for purposes of begging,
[363A. Kidnapping or maiming a minor for purposes of begging.—(1) Whoever kidnaps any,
1,
"minor or, not being the lawful guardian of a minor, obtains the custody of the minor, in order",
that such minor may be employed or used for the purpose of begging shall be punishable with,
"imprisonment of either description for a term which may extend to ten years, and shall also be",
liable to fine. (2) Whoever maims any minor in order that such minor may be employed or used,
"for the purposes of begging shall be punishable with imprisonment for life, and shall also be",
"liable to fine. (3) Where any person, not being the lawful guardian of a minor, employs or uses",
"such minor for the purposes of begging, it shall be presumed, unless the contrary is proved,",
that he kidnapped or otherwise obtained the custody of that minor in order that the minor might,
"be employed or used for the purposes of begging. (4) In this section,— (a) ‘begging’ means—",
"(i) soliciting or receiving alms in a public place, whether under the pretence of singing, dancing,",
"fortune-telling, performing tricks or selling articles or otherwise; (ii) entering on any private",
"premises for the purpose of soliciting or receiving alms; (iii) exposing or exhibiting, with the",
"object of obtaining or extorting alms, any sore, wound, injury, deformity or disease, whether of",
himself or of any other person or of an animal; (iv) using a minor as an exhibit for the purpose,
"of soliciting or receiving alms; (b) ‘minor’ means— (i) in the case of a male, a person under",
"sixteen years of age; and (ii) in the case of a female, a person under eighteen years of",
age.]CLASSIFICATION OF OFFENCE Para I Punishment—Imprisonment for 10 years and,
LLaatteessttLLaawwss..ccoomm,
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fine—Cognizable—Non-bailable—Triable by Magistrate of the first class—Non-com-,
poundable. Para II Punishment—Imprisonment for life and fine—Cognizable—Non-,
bailable—Triable by Court of Session—Non-compoundable. ——————————,
"1. Ins. by Act 52 of 1959, sec. 2 (w.e.f. 15-1-1960).",
Section 364. Kidnapping or abducting in,
order to murder,
Whoever kidnaps or abducts any person in order that such person may be murdered or may,
"be so disposed of as to be put in danger of being murdered, shall be punished",
"with [imprisonment for life] or rigorous imprisonment for a term which may extend to ten years,",
1,
"and shall also be liable to fine. Illustrations (a) A kidnaps Z from [India], intending or knowing",
2,
it to be likely that Z may be sacrificed to an idol. A has committed the offence defined in this,
section. (b) A forcibly carries or entices B away from his home in order that B may be,
murdered. A has committed the offence defined in this section.. CLASSIFICATION OF,
"OFFENCE Punishment—Imprisonment for life, or rigorous imprisonment for 10 years and",
fine—Cognizable—Non-bailable—Triable by Court of Session—Non-compoundable. ———,
—————–,
"1. Subs. by Act 26 of 1955, sec. 117 and Sch., for “transportation for life” (w.e.f. 1-1-",
1956).,
"2. The words “British India” have successively been subs. by the A.O. 1948, the A.O.",
"1950 and Act 3 of 1951, sec. 3 and Sch. to read as above.",
"Section 364A. Kidnapping for ransom, etc.",
"[364A. Kidnapping for ransom, etc.—Whoever kidnaps or abducts any person or keeps a",
1,
person in detention after such kidnapping or abduction and threatens to cause death or hurt,
"to such person, or by his conduct gives rise to a reasonable apprehension that such person",
"may be put to death or hurt, or causes hurt or death to such person in order to compel the",
Government or [any foreign State or international inter-governmental organization or any,
2,
"other person] to do or abstain from doing any act or to pay a ransom, shall be punishable with",
LLaatteessttLLaawwss..ccoomm,
264,
"death, or imprisonment for life, and shall also be liable to fine]. Classification of",
"OffencePunishment—Death, or imprisonment for life and fine—Cognizable—Non-bailable—",
Triable by Court of Session—Non-compoundable. ————————–,
"1. Ins. by Act 42 of 1993, sec. 2 (w.e.f. 22-5-1993).",
"2. Subs. by Act 24 of 1995, for “any other person” (w.e.f. 26-5-1995).",
Section 365. Kidnapping or abducting with,
intent secretly and wrongfully to confine,
person,
Whoever kidnaps or abducts any person with intent to cause that person to be secretly and,
"wrongfully confined, shall be punished with imprisonment of either description for a term which",
"may extend to seven years, and shall also be liable to fine. CLASSIFICATION OF",
OFFENCE Punishment—Imprisonment for 7 years and fine—Cognizable—Non-bailable—,
Triable by Magistrate of the first class—Non-compoundable.,
"Section 366. Kidnapping, abducting or",
"inducing woman to compel her marriage,",
etc.,
"Whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it",
"to be likely that she will be compelled, to marry any person against her will, or in order that",
"she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be",
forced or seduced to illicit intercourse shall be punished with imprisonment of either description,
"for a term which may extend to ten years, and shall also be liable to fine; [and whoever, by",
1,
means of criminal intimidation as defined in this Code or of abuse of authority or any other,
"method of compulsion, induces any woman to go from any place with intent that she may be,",
"or knowing that it is likely she will be, forced or seduced to illicit intercourse with another person",
shall be punished as aforesaid]. CLASSIFICATION OF OFFENCE Punishment—,
LLaatteessttLLaawwss..ccoomm,
265,
Imprisonment for 10 years and fine—Cognizable—Non-bailable—Triable by Court of,
Session—Non-compoundable. ————————–,
"1. Added by Act 20 of 1923, sec. 2.",
Section 366A. Procreation of minor girl,
"[366A. procreation of minor girl.—Whoever, by any means whatsoever, induces any minor girl",
1,
under the age of eighteen years to go from any place or to do any act with intent that such girl,
"may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with",
"another person shall be punishable with imprisonment which may extend to ten years, and",
shall also be liable to fine.] CLASSIFICATION OF OFFENCE Punishment—Imprisonment,
for 10 years and fine—Cognizable—Non-bailable—Triable by Court of Session—Non-,
compoundable. ——————–,
"1. Ins. by Act 20 of 1923, sec. 3.",
Section 366B. Importation of girl from,
foreign country,
[366B. Importation of girl from foreign country.—Whoever imports into [India] from any country,
1 2,
outside India[or from the State of Jammu and Kashmir] any girl under the age of twenty-one,
3,
"years with intent that she may be, or knowing it to be likely that she will be, forced or seduced",
"to illicit intercourse with another person,[***] shall be punishable with imprisonment which may",
4,
extend to ten years and shall also be liable to fine.]CLASSIFICATION OF,
OFFENCE Punishment—Imprisonment for 10 years and fine—Cognizable—Non-bailable—,
Triable by Court of Session—Non-compoundable. Comments Age of the prosecutrix (i) Where,
the age of prosecutrix was 14 years at the time of incident not proved while test report,
suggested her age about 40 years and further she had willingly gone with accused without,
making complaints to any body on way thus no offence is made out and as such conviction is,
"liable to set aside; Shakeel alias Pappoo v. State of Uttar Pradesh, 2000 Cr LJ 153 (All). (ii)",
Consent of a minor prosecutrix does not matter if she was taken to separate places for making,
"sexual intercourse away from her lawful guardians, her name as different in FIR does not",
LLaatteessttLLaawwss..ccoomm,
266,
"matter as it was her pet name, under such circumstances accused is guilty of kidnapping and",
"raping a minor for days long; Mohandas Suryavanshi v. State of Madhya Pradesh, 1999 Cr LJ",
3451 (MP). ————————-,
"1. Ins. by Act 20 of 1923, sec. 3.",
"2. The words “British India” have successively been subs. by the A.O. 1948, the A.O.",
"1950 and Act 3 of 1951, sec. 3 and Sch., to read as above.",
"3. Ins. by Act 3 of 1951, sec. 3 and Sch.",
"4. Certain words omitted by Act 3 of 1951, sec. 3 and Sch.",
Section 367. Kidnapping or abducting in,
"order to subject person to grievous hurt,",
"slavery, etc.",
"Whoever kidnaps or abducts any person in order that such person may be subjected, or may",
"be so disposed of as to be put in danger of being subject to grievous hurt, or slavery, or to",
"unnatural lust of any person, or knowing it to be likely that such person will be so subjected or",
"disposed of, shall be punished with imprisonment of either description for a term which may",
"extend to ten years, and shall also be liable to fine.CLASSIFICATION OF",
OFFENCE Punishment—Imprisonment for 10 years and fine—Cognizable—Non-bailable—,
Triable by Court of Session—Non-compoundable.,
Section 368. Wrongfully concealing or,
"keeping in confinement, kidnapped or",
abducted person,
"Whoever, knowing that any person has been kidnapped or has been abducted, wrongfully",
"conceals or confines such person, shall be punished in the same manner as if he had",
"kidnapped or abducted such person with the same intention or knowledge, or for the same",
purpose as that with or for which he conceals or detains such person in,
confinement. CLASSIFICATION OF OFFENCE Punishment—Punishment for kidnapping,
LLaatteessttLLaawwss..ccoomm,
267,
or abduction—Cognizance—Non-bailable—Triable by court by which the kidnapping or,
abduction is triable—Non-compoundable.,
Section 369. Kidnapping or abducting child,
under ten years with intent to steal from its,
person,
Whoever kidnaps or abducts any child under the age of ten years with the intention of taking,
"dishonestly any movable property from the person of such child, shall be punished with",
"imprisonment of either description for a term which may extend to seven years, and shall also",
be liable to fine. CLASSIFICATION OF OFFENCEPunishment—Imprisonment for 7 years,
and fine—Cognizable—Non-bailable—Triable by Magistrate of the first class—Non-,
compoundable.,
Section 370. Substitution of new sections 370,
and 370A for section 370.,
"1Section [370. Trafficking of person (1) Whoever, for the purpose of exploitation, (a) recruits,",
"(b) transports, (c) harbours, (d) transfers, or (e) receives, a person or persons, by—",
"First.— using threats, or",
"Secondly.— using force, or any other form of coercion, or",
"Thirdly.— by abduction, or",
"Fourthly.— by practising fraud, or deception, or",
"Fifthly.— by abuse of power, or",
"Sixthly.— by inducement, including the giving or receiving of payments or benefits, in order to",
"achieve the consent of any person having control over the person recruited, transported,",
"harboured, transferred or received, commits the offence of trafficking.",
Explanation 1.— The expression “exploitation” shall include any act of physical exploitation or,
"any form of sexual exploitation, slavery or practices similar to slavery, servitude, or the forced",
removal of organs,
LLaatteessttLLaawwss..ccoomm,
268,
Explanation 2.— The consent of the victim is immaterial in determination of the offence of,
trafficking.,
(2) Whoever commits the offence of trafficking shall be punished with rigorous imprisonment,
"for a term which shall not be less than seven years, but which may extend to ten years, and",
shall also be liable to fine.,
"(3) Where the offence involves the trafficking of more than one person, it shall be punishable",
with rigorous imprisonment for a term which shall not be less than ten years but which may,
"extend to imprisonment for life, and shall also be liable to fine.",
"(4) Where the offence involves the trafficking of a minor, it shall be punishable with rigorous",
"imprisonment for a term which shall not be less than ten years, but which may extend to",
"imprisonment for life, and shall also be liable to fine.",
"(5) Where the offence involves the trafficking of more than one minor, it shall be punishable",
"with rigorous imprisonment for a term which shall not be less than fourteen years, but which",
"may extend to imprisonment for life, and shall also be liable to fine.",
"(6) If a person is convicted of the offence of trafficking of minor on more than one occasion,",
"then such person shall be punished with imprisonment for life, which shall mean imprisonment",
"for the remainder of that person’s natural life, and shall also be liable to fine.",
"(7) When a public servant or a police officer is involved in the trafficking of any person then,",
"such public servant or police officer shall be punished with imprisonment for life, which shall",
"mean imprisonment for the remainder of that person’s natural life, and shall also be liable to",
fine.,
"Section 370A. Exploitation of trafficked person (1) Whoever, knowingly or having reason to",
"believe that a minor has been trafficked, engages such minor for sexual exploitation in any",
"manner, shall be punished with rigorous imprisonment for a term which shall not be less than",
"five years, but which may extend to seven years, and shall also be liable to fine.",
"(2) Whoever, knowingly by or having reason to believe that a person has been trafficked,",
"engages such person for sexual exploitation in any manner, shall be punished with rigorous",
LLaatteessttLLaawwss..ccoomm,
269,
"imprisonment for a term which shall not be less than three years, but which may extend to five",
"years, and shall also be liable to fine.] ————————————————————",
"1. Inserted by Section 8 of ‘The Criminal Law (Amendment) Act, 2013′",
Section 371. Habitual dealing in slaves,
"Whoever habitually imports, exports, removes, buys, sells, traffics or deals in slaves, shall be",
punished with[imprisonment for life] or with imprisonment of either description for a term not,
1,
"exceeding the years, and shall also be liable to fine. CLASSIFICATION OF",
"OFFENCE Punishment—Imprisonment for life, or imprisonment for 10 years, and fine—",
Cognizable—Non-bailable—Triable by Court of Session—Non-compoundable. ——————,
—,
"1. Subs. by Act 26 of 1955, sec. 117 and Sch., for “transportation for life” (w.e.f. 1-1-",
1956).,
Section 372. Selling minor for purposes of,
"prostitution, etc.",
"Whoever sells, lets to hire, or otherwise disposes of any [person under the age of eighteen",
1,
years with intent that such person shall at any age be employed or used for the purpose of,
"prostitution or illicit intercourse with any person or for any unlawful and immoral purpose, or",
knowing it to be likely that such person will at any age be] employed or used for any such,
"purpose, shall be punished with imprisonment of either description for a term which may",
"extend to ten years, and shall be liable to fine. [Explanation I When a female under the age of",
2,
"eighteen years sold, let for hire, or otherwise disposed of to a prostitute or to any person who",
"keeps or manages a brothel, the person so disposing of such female shall, until the contrary",
"is proved, be presumed to have disposed of her with the intent that she shall be used for the",
purpose of prostitution. Explanation II For the purposes of this section “illicit intercourse”,
means sexual intercourse between persons not united by marriage or by any union or tie,
"which, though not amounting to a marriage, is recognised by the personal law or custom of",
"the community to which they belong or, where they belong to different communities, of both",
LLaatteessttLLaawwss..ccoomm,
270,
"such communities, as constituting between them a quasi -marital",
relation]. CLASSIFICATION OF OFFENCEPunishment—Imprisonment for 10 years and,
fine—Cognizable—Non-bailable—Triable by Court of Session—Non-compoundable. ———,
——————,
"1. Subs. by Act 18 of 1924, sec. 2, for certain words.",
"2. Ins. by Act 18 of 1924, sec. 3.",
Section 373. Buying minor for purposes of,
"prostitution, etc.",
"Whoever buys, hires or otherwise obtains possession of any [person under the age of",
1,
eighteen years with intent that such person shall at any age be employed or used for the,
purpose of prostitution or illicit intercourse with any person or for any unlawful and immoral,
"purpose, of knowing it to be likely that such person will at any age be] employed or used for",
"any purpose, shall be punished with imprisonment of either description for a term which may",
"extend to ten years, and shall also be liable to fine. [Explanation I Any prostitute or any person",
2,
"keeping or managing a brothel, who buys, hires or otherwise obtains possession of a female",
"under the age of eighteen years shall, until the contrary is proved, be presumed to have",
obtained possession of such female with the intent that she shall be used for the purpose of,
prostitution. Explanation II “Illicit intercourse” has the same meaning as in section,
372.] CLASSIFICATION OF OFFENCE Punishment—Imprisonment for 10 years and fine—,
Cognizable—Non-bailable—Triable by Court of Session—Non-compoundable. ——————,
——–,
"1. Subs. by Act 18 of 1924, sec. 2, for certain words.",
"2. Ins. by Act 18 of 1924, sec. 4.",
Section 374. Unlawful compulsory labour,
"Whoever unlawfully compels any person to labour against the will of that person, shall be",
"punished with imprisonment of either description for a term which may extend to one year, or",
with both.,
LLaatteessttLLaawwss..ccoomm,
271,
"CLASSIFICATION OF OFFENCE Punishment—Imprisonment for 1 year, or fine, or both—",
Cognizable—Bailable—Triable by any Magistrate—Non-compoundable.,
Section 375. Rape,
1[375. A man is said to commit “rape” if he—,
"(a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or",
makes her to do so with him or any other person; or,
"(b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina,",
the urethra or anus of a woman or makes her to do so with him or any other person; or,
"(c) manipulates any part of the body of a woman so as to cause penetration into the vagina,",
"urethra, anus or any part of body of such woman or makes her to do so with him or any other",
person; or,
"(d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him",
"or any other person, under the circumstances falling under any of the following seven",
descriptions:—,
First.—Against her will.,
Secondly.—Without her consent.,
"Thirdly.—With her consent, when her consent has been obtained by putting her or any person",
"in whom she is interested, in fear of death or of hurt.",
"Fourthly.—With her consent, when the man knows that he is not her husband and that her",
consent is given because she believes that he is another man to whom she is or believes,
herself to be lawfully married.,
"Fifthly.—With her consent when, at the time of giving such consent, by reason of unsoundness",
of mind or intoxication or the administration by him personally or through another of any,
"stupefying or unwholesome substance, she is unable to understand the nature and",
consequences of that to which she gives consent.,
"Sixthly.—With or without her consent, when she is under eighteen years of age.",
Seventhly.—When she is unable to communicate consent.,
LLaatteessttLLaawwss..ccoomm,
272,
"Explanation 1.—For the purposes of this section, “vagina” shall also include labia majora.",
Explanation 2.—Consent means an unequivocal voluntary agreement when the woman by,
"words, gestures or any form of verbal or non-verbal communication, communicates",
willingness to participate in the specific sexual act: Provided that a woman who does not,
"physically resist to the act of penetration shall not by the reason only of that fact, be regarded",
as consenting to the sexual activity.,
Exception 1.—A medical procedure or intervention shall not constitute rape.,
"Exception 2.—Sexual intercourse or sexual acts by a man with his own wife, the wife not being",
"under fifteen years of age, is not rape.] —————————–",
"1. Inserted by Section 9 of ‘The Criminal Law (Amendment) Act, 2013′",
Section 376. Punishment for rape,
"[376. (1) Whoever, except in the cases provided for in sub-section (2), commits rape, shall be",
1,
punished with rigorous imprisonment of either description for a term which shall not be less,
"than seven years, but which may extend to imprisonment for life, and shall also be liable to",
fine.,
"(2) Whoever,—",
"(a) being a police officer, commits rape—",
(i) within the limits of the police station to which such police officer is appointed; or,
(ii) in the premises of any station house; or,
(iii) on a woman in such police officer’s custody or in the custody of a police officer,
subordinate to such police officer; or,
"(b) being a public servant, commits rape on a woman in such public servant’s custody or in",
the custody of a public servant subordinate to such public servant; or,
(c) being a member of the armed forces deployed in an area by the Central or a State,
Government commits rape in such area; or,
LLaatteessttLLaawwss..ccoomm,
273,
"(d) being on the management or on the staff of a jail, remand home or other place of custody",
established by or under any law for the time being in force or of a women’s or children’s,
"institution, commits rape on any inmate of such jail, remand home, place or institution; or",
"(e) being on the management or on the staff of a hospital, commits rape on a woman in that",
hospital; or,
"(f) being a relative, guardian or teacher of, or a person in a position of trust or authority towards",
"the woman, commits rape on such woman; or",
(g) commits rape during communal or sectarian violence; or,
(h) commits rape on a woman knowing her to be pregnant; or,
(i) commits rape on a woman when she is under sixteen years of age; or,
"(j) commits rape, on a woman incapable of giving consent; or",
"(k) being in a position of control or dominance over a woman, commits rape on such woman;",
or,
(l) commits rape on a woman suffering from mental or physical disability; or,
(m) while committing rape causes grievous bodily harm or maims or disfigures or endangers,
the life of a woman; or,
"(n) commits rape repeatedly on the same woman, shall be punished with rigorous",
"imprisonment for a term which shall not be less than ten years, but which may extend to",
"imprisonment for life, which shall mean imprisonment for the remainder of that person’s natural",
"life, and shall also be liable to fine.",
"Explanation.—For the purposes of this sub-section,—",
"(a) “armed forces” means the naval, military and air forces and includes any member of the",
"Armed Forces constituted under any law for the time being in force, including the paramilitary",
forces and any auxiliary forces that are under the control of the Central Government or the,
State Government;,
(b) “hospital” means the precincts of the hospital and includes the precincts of any institution,
for the reception and treatment of persons during convalescence or of persons requiring,
medical attention or rehabilitation;,
LLaatteessttLLaawwss..ccoomm,
274,
(c) “police officer” shall have the same meaning as assigned to the expression “police” under,
"the Police Act, 1861;",
"(d) “women’s or children’s institution” means an institution, whether called an orphanage or a",
home for neglected women or children or a widow’s home or an institution called by any other,
"name, which is established and maintained for the reception and care of women or children.]",
—————————–,
"1. Inserted by Section 9 of ‘The Criminal Law (Amendment) Act, 2013′.",
Section 376A. Punishment for causing,
death or resulting in persistent vegetative,
state of victim,
"[376A. Whoever, commits an offence punishable under sub-section (1) or subsection (2) of",
1,
section 376 and in the course of such commission inflicts an injury which causes the death of,
"the woman or causes the woman to be in a persistent vegetative state, shall be punished with",
"rigorous imprisonment for a term which shall not be less than twenty years, but which may",
"extend to imprisonment for life, which shall mean imprisonment for the remainder of that",
"person’s natural life, or with death.] ———————– 1.Inserted by Section 376A of ‘The",
"Criminal Law (Amendment) Act, 2013′.",
Section 376B. Sexual intercourse by,
husband upon his wife during separation,
"1[376B. Whoever has sexual intercourse with his own wife, who is living separately, whether",
"under a decree of separation or otherwise, without her consent, shall be punished with",
imprisonment of either description for a term which shall not be less than two years but which,
"may extend to seven years, and shall also be liable to fine.",
"Explanation.—In this section, “sexual intercourse” shall mean any of the acts mentioned in",
clauses (a) to (d) of section 375.] ———————–,
"1. Inserted by Section 9 of ‘The Criminal Law (Amendment) Act, 2013′.",
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Section 376C. Sexual intercourse by,
person in authority.,
"[376C. Whoever, being—",
1,
(a) in a position of authority or in a fiduciary relationship; or,
(b) a public servant; or,
"(c) superintendent or manager of a jail, remand home or other place of custody established by",
"or under any law for the time being in force, or a women’s or children’s institution; or",
"(d) on the management of a hospital or being on the staff of a hospital, abuses such position",
or fiduciary relationship to induce or seduce any woman either in his custody or under his,
"charge or present in the premises to have sexual intercourse with him, such sexual intercourse",
"not amounting to the offence of rape, shall be punished with rigorous imprisonment of either",
"description for a term which shall not be less than five years, but which may extend to ten",
"years, and shall also be liable to fine.",
"Explanation 1.—In this section, “sexual intercourse” shall mean any of the acts mentioned in",
clauses (a) to (d) of section 375.,
"Explanation 2. —For the purposes of this section, Explanation 1 to section 375 shall also be",
applicable.,
"Explanation 3.—”Superintendent”, in relation to a jail, remand home or other place of custody",
"or a women’s or children’s institution, includes a person holding any other office in such jail,",
"remand home, place or institution by virtue of which such person can exercise any authority",
or control over its inmates.,
Explanation 4.—The expressions “hospital” and “women’s or children’s institution” shall,
respectively have the same meaning as in Explanation to sub-section (2) of section 376.] ——,
—————–,
"1. Inserted by Section 9 of ‘The Criminal Law (Amendment) Act, 2013′.",
Section 376D. Gang rape,
[376D. Where a woman is raped by one or more persons constituting a group or acting in,
1,
"furtherance of a common intention, each of those persons shall be deemed to have committed",
LLaatteessttLLaawwss..ccoomm,
276,
the offence of rape and shall be punished with rigorous imprisonment for a term which shall,
"not be less than twenty years, but which may extend to life which shall mean imprisonment for",
"the remainder of that person’s natural life, and with fine:",
Provided that such fine shall be just and reasonable to meet the medical expenses and,
rehabilitation of the victim: Provided further that any fine imposed under this section shall be,
paid to the victim.] ———————–,
"1. Inserted by Section 9 of ‘The Criminal Law (Amendment) Act, 2013′.",
Section 376E. Punishment for repeat,
offenders,
1[376E. Whoever has been previously convicted of an offence punishable under section 376,
or section 376A or section 376D and is subsequently convicted of an offence punishable under,
any of the said sections shall be punished with imprisonment for life which shall mean,
"imprisonment for the remainder of that person’s natural life, or with death.’] ————————",
—————————,
"1. Inserted by Section 9 of ‘The Criminal Law (Amendment) Act, 2013′.",
Section 377. Unnatural offences,
"Whoever voluntarily has carnal intercourse against the order of nature with any man, woman",
"or animal, shall be punished with [imprisonment for life], or with imprisonment of either",
1,
"description for term which may extend to ten years, and shall also be liable to fine. Explanation",
Penetration is sufficient to constitute the carnal intercourse necessary to the offence described,
in this section.,
"CLASSIFICATION OF OFFENCE Punishment—Imprisonment for life, or imprisonment for",
10 years and fine—Cognizable—Non-Bailable—Triable by Magistrate of the first class—Non-,
compoundable. ————————,
"1. Subs. by Act 26 of 1955, sec. 117 and Sch., for “transportation for life” (w.e.f. 1-1-",
1956).,
LLaatteessttLLaawwss..ccoomm,
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Section 378. Theft,
"Whoever, intending to take dishonestly any moveable property out of the possession of any",
"person without that person’s consent, moves that property in order to such taking, is said to",
commit theft.,
"Explanation 1 A thing so long as it is attached to the earth, not being movable property, is not",
the subject of theft; but it becomes capable of being the subject of theft as soon as it is severed,
from the earth.,
Explanation 2 A moving effected by the same act which affects the severance may be a theft.,
Explanation 3 A person is said to cause a thing to move by removing an obstacle which,
"prevented it from moving or by separating it from any other thing, as well as by actually moving",
it.,
"Explanation 4 A person, who by any means causes an animal to move, is said to move that",
"animal, and to move everything which, in consequence of the motion so caused, is moved by",
that animal.,
"Explanation 5 The consent mentioned in the definition may be express or implied, and may",
"be given either by the person in possession, or by any person having for that purpose authority",
either express or implied.,
"Illustrations (a) A cuts down a tree on Z’s ground, with the intention of dishonestly taking the",
"tree out of Z’s possession without Z’s consent. Here, as soon as A has severed the tree in",
"order to such taking, he has committed theft. (b) A puts a bait for dogs in his pocket, and thus",
"induces Z’s dog to follow it. Here, if A’s intention be dishonestly to take the dog out of Z’s",
possession without Z’s consent. A has committed theft as soon as Z’s dog has begun to follow,
"A. (c) A meets a bullock carrying a box of treasure. He drives the bullock in a certain direction,",
"in order that he may dishonestly take the treasure. As soon as the bullock begins to move, A",
"has committed theft of the treasure. (d) A, being Z’s servant, and entrusted by Z with the care",
LLaatteessttLLaawwss..ccoomm,
278,
"of Z’s plate, dishonestly runs away with the plate, without Z’s consent. A has committed theft.",
"(e) Z, going on a journey, entrusts his plate to A, the keeper of the warehouse, till Z shall",
return. A carries the plate to a goldsmith and sells it. Here the plate was not in Z’s possession.,
"It could not therefore be taken out of Z’s possession, and A has not committed theft, though",
he may have committed criminal breach of trust. (f) A finds a ring belonging to Z on a table in,
"the house which Z occupies. Here the ring is in Z’s possession, and if A dishonestly removes",
"it, A commits theft. (g) A finds a ring lying on the highroad, not in the possession of any person.",
"A by taking it, commits no theft, though he may commit criminal misappropriation of property.",
(h) A sees a ring belonging to Z lying on a table in Z’s house. Not venturing to misappropriate,
"the ring immediately for fear of search and detection, A hides the ring in a place where it is",
"highly improbable that it will ever be found by Z, with the intention of taking the ring from the",
"hiding place and selling it when the loss is forgotten. Here A, at the time of first moving the",
"ring, commits theft. (i) A delivers his watch to Z, a jeweller, to be regulated. Z carries it to his",
"shop. A, not owing to the jeweller any debt for which the jeweller might lawfully detain the",
"watch as a security, enters the shop openly, takes his watch by force out of Z’s hand, and",
"carries it away. Here A, though he may have committed criminal trespass and assault, has not",
"committed theft, in as much as what he did was not done dishonestly. (j) If A owes money to",
"Z for repairing the watch, and if Z retains the watch lawfully as a security for the debt, and A",
"takes the watch out of Z’s possession, with the intention of depriving Z of the property as a",
"security for his debt, he commits theft, in as much as he takes it dishonestly. (k) Again, if A,",
"having pawned his watch to Z, takes it out of Z’s possession without Z’s consent, not having",
"paid what he borrowed on the watch, he commits theft, though the watch is his own property",
"in as much as he takes it dishonestly. (l) A takes an article belonging to Z out of Z’s possession,",
"without Z’s consent, with the intention of keeping it until he obtains money from Z as a reward",
"for its restoration. Here A takes dishonestly; A has therefore committed theft. (m) A, being on",
"friendly terms with Z, goes into Z’s library in Z’s absence, and takes away a book without Z’s",
"express consent for the purpose merely of reading it, and with the intention of returning it.",
"Here, it is probable that A may have conceived that he had Z’s implied consent to use Z’s",
LLaatteessttLLaawwss..ccoomm,
279,
"book. If this was A’s impression, A has not committed theft. (n) A asks charity from Z’s wife.",
"She gives A money, food and clothes, which A knows to belong to Z her husband. Here it is",
probable that A may conceive that Z’s wife is authorised to give away alms. If this was A’s,
"impression, A has not committed theft. (o) A is the paramour of Z’s wife. She gives a valuable",
"property, which A knows to belong to her husband Z, and to be such property as she has no",
"authority from Z to give. If A takes the property dishonestly, he commits theft. (p) A, in good",
"faith, believing property belonging to Z to be A’s own property, takes that property out of B’s",
"possession. Here, as A does not take dishonestly, he does not commit",
theft. Comments Ingredients The delay in hearing of appeal for long period is no cause for not,
"interfering with an order of acquittal which was based on conjectures and surmises, resulting",
"in gross failure of justice; State of Rajasthan v. Shanker, 2000 Cr LJ 266 (Raj). Taking need",
"not be permanent It is not necessary that the taking should be of a permanent character, or",
that the accused should have derived any profit. A temporary removal of an office file from the,
office of a Chief Engineer and making it available to a private person for a day or two amounts,
"to the offence of theft; Pyare Lal Bhargava v. State of Rajasthan, AIR 1963 SC 1094.",
Section 379. Punishment for theft,
Whoever commits theft shall be punished with imprisonment of either description for a term,
"which may extend to three years, or with fine, or with both. CLASSIFICATION OF",
"OFFENCE Punishment—Imprisonment for 3 years, or fine, or both—Cognizable—Non-",
bailable—Triable by any Magistrate—Compoundable by the owner of the property stolen with,
the permission of the court.,
"Section 380. Theft in dwelling house, etc",
"Whoever commits theft in any building, tent or vessel, which building, tent or vessel is used",
"as a human dwelling, or used for the custody of property, shall be punished with imprisonment",
"of either description for a term which may extend to seven years, and shall also be liable to",
fine.,
LLaatteessttLLaawwss..ccoomm,
280,
CLASSIFICATION OF OFFENCE Punishment—Imprisonment for 7 years and fine—,
Cognizable—Non-bailable—Triable by any Magistrate—Non-compoundable. STATE,
AMENDMENT Tamil Nadu Section 380 shall be renumbered as sub-section (1) of that,
"section and after sub-section (1) as so renumbered, the following sub-section shall be added,",
namely:— “(2) Whoever commits theft in respect of any idol or icon in any building used as a,
place of worship shall be punished with rigorous imprisonment for a term which shall not be,
less than two years but which may extend to three years and with fine which shall not be less,
"than two thousand rupees: Provided that the court may, for adequate and special reasons to",
be mentioned in the judgment impose a sentence of imprisonment for a term of less than two,
"years.” [Vide Tamil Nadu Act 28 of 1993, sec. 2 (w.e.f. 13-7-1993)].Section 381. Theft by clerk",
"or servant of property in possession of master Whoever, being a clerk or servant, or being",
"employed in the capacity of a clerk or servant, commits theft in respect of any property in the",
"possession of his master or employer, shall be punished with imprisonment of either",
"description for a term which may extend to seven years, and shall also be liable to fine.",
CLASSIFICATION OF OFFENCE Punishment—Imprisonment for 7 years and fine—,
Cognizable—Non-bailable—Triable by any Magistrate—Compounded by the owner of the,
property stolen with the permission of the court.,
Section 382. Theft after preparation made,
"for causing death, hurt or restraint in order",
to the committing of the theft,
"Whoever commits theft, having made preparation for causing death, or hurt, or restrain, or",
"fear of death, or of hurt, or of restraint, to any person, in order to the committing of such theft,",
"or in order to the effecting of his escape after the committing of such theft, or in order to the",
"retaining of property taken by such theft, shall be punished with rigorous imprisonment for a",
"term which may extend to ten years, and shall also be liable to fine.",
LLaatteessttLLaawwss..ccoomm,
281,
"Illustrations (a) A commits theft on property in Z’s possession; and, while committing this",
"theft, he has a loaded pistol under his garment, having provided this pistol for the purpose of",
hurting Z in case Z should resist. A has committed the offence defined in this section.,
"(b) A picks Z’s pocket, having posted several of his companions near him, in order that they",
"may restrain Z, if Z should perceive what is passing and should resist, or should attempt to",
apprehend A. A has committed the offence defined in this section,
CLASSIFICATION OF OFFENCE Punishment—Rigorous imprisonment for 10 years and,
fine—Cognizable—Non-bailable—Triable by Magistrate of the first class—Non-,
compoundable.,
Section 383. Extortion,
"Whoever intentionally puts any person in fear of any injury to that person, or to any other, and",
thereby dishonestly induces the person so put in fear to deliver to any property or valuable,
"security, or anything signed or sealed which may be converted into a valuable security,",
commits “extortion”.,
Illustrations (a) A threatens to publish a defamatory libel concerning Z unless Z give him,
money. He thus induces Z to give him money. A has committed extortion.,
"(b) A threatens Z that he will keep Z’s child in wrongful confinement, unless Z will sign and",
deliver to A promissory note binding Z to pay certain monies to A. Z signs and delivers the,
note. A has committed extortion.,
(c) A threatens to send club-men to plough up Z’s field unless Z will sign and deliver to B bond,
"binding Z under a penalty to deliver certain produce to B, and thereby induces Z to sing and",
deliver the bond. A has committed extortion.,
"(d) A, by putting Z in fear of grievous hurt, dishonestly induces Z to sign or affix his seal to a",
"blank paper and deliver it to A. Z signs and delivers the paper to A. Here, as the paper so",
signed may be converted into a valuable security. A has committed extortion.,
LLaatteessttLLaawwss..ccoomm,
282,
Section 384. Punishment for extortion,
Whoever commits extortion shall be punished with imprisonment of either description for a,
"term which may extend to three years, or with fine or with both.",
"CLASSIFICATION OF OFFENCE Punishment—Imprisonment for 3 years, or fine, or both—",
Cognizable—Non-bailable—Triable by any Magistrate—Non-compoundable.,
Section 385. Putting person in fear of injury,
in order to commit extortion,
"Whoever, in order to the committing of extortion, puts any person in fear, or attempts to put",
"any person in fear, of any injury, shall be punished with imprisonment of either description for",
"a term which may extend to two years, or with fine, or with both.",
"CLASSIFICATION OF OFFENCE Punishment—Imprisonment for 2 years, or fine, or both—",
Cognizable—Bailable—Triable by any Magistrate—Non-compoundable.,
Section 386. Extortion by putting a person,
in fear of death or grievous hurt,
Whoever commits extortion by putting any person in fear of death or of grievous hurt o that,
"person or to any other, shall be punished with imprisonment of either description for a term",
"which may extend to ten years, and shall also be liable to fine.",
CLASSIFICATION OF OFFENCE Punishment—Imprisonment for 10 years and fine—,
Cognizable—Non-bailable—Triable by Magistrate of the first class—Non-compoundable.,
Section 387. Putting person in fear of death,
"or of grievous hurt, in order to commit",
extortion,
"Whoever, in order to the committing of extortion, puts or attempts to put any person in fear of",
"death or of grievous hurt to that person or to any other, shall be punished with imprisonment",
LLaatteessttLLaawwss..ccoomm,
283,
"of either description for a term which may extend to seven years, and shall also be liable to",
fine.,
CLASSIFICATION OF OFFENCE Punishment—Imprisonment for 7 years and fine—,
Cognizable—Non-bailable—Triable by Magistrate of the first class—Non-compoundable.,
Section 388. Extortion by threat of,
accusation of an offence punishable with,
"death or imprisonment for life, etc.",
Whoever commits extortion by putting any person in fear of an accusation against that person,
"or any other, of having committed or attempted to commit any offence punishable with death,",
"or with [imprisonment for life], or with imprisonment for a term which may extend to ten years",
1,
"or of having attempted to induce any other person to commit such offence, shall be punished",
"with imprisonment of either description for a term which may extend to ten years, and shall",
"also be liable to fine; and, if the offence be one punishable under section 377 of this Code,",
may be punished with [imprisonment for life].,
1,
CLASSIFICATION OF OFFENCE Punishment—Imprisonment for 10 years and fine—,
Cognizable—Bailable—Triable by Magistrate of the first class—Non-compoundable. ———,
—————,
"1. Subs. by Act 26 of 1955, sec. 117 and Sch., for “transportation for life” (w.e.f. 1-1-",
1956).,
Section 389. Putting person in fear of,
"accusation of offence, in order to commit",
extortion,
"Whoever, in order to the committing of extortion, puts or attempts to put any person in fear of",
"an accusation, against that person or any other, of having committed, or attempted to commit",
"an offence punished with death or with [imprisonment for life], or with imprisonment for a term",
1,
"which may extend to ten years, shall be punished with imprisonment of either description for",
LLaatteessttLLaawwss..ccoomm,
284,
"term which may extend to ten years, and shall also be liable to fine; and, if the offence be",
"punished under section 377 of this Code, may be punished with[imprisonment for life].",
1,
CLASSIFICATION OF OFFENCE,
Para I Punishment—Imprisonment for 10 years and fine—Cognizable—Non-bailable—Triable,
by Magistrate of the first class—Non-compoundable.,
Para II Punishment—Imprisonment for life—Cognizable—Bailable—Triable by Magistrate of,
the first class—Non-compoundable. ————————,
"1. Subs. by Act 26 of 1955, sec. 117 and Sch., for “transportation for life” (w.e.f. 1-1-",
1956).,
Section 390. Robbery,
"In all robbery there is either theft or extortion. When theft is robbery.—Theft is “robbery” if, in",
"order to the committing of the theft, or in committing the theft, or in carrying away or attempting",
"to carry away property obtained by the theft, the offender, for that end, voluntarily causes or",
"attempts to cause to any person death or hurt or wrongful restraint, or fear of instant death or",
"of instant hurt, or of instant wrongful restraint.",
"When extortion is robbery.—Extortion is “robbery” if the offender, at the time of committing",
"the extortion, is in the presence of the person put in fear, and commits the extortion by putting",
"that person in fear of instant death, of instant hurt, or of instant wrongful restraint to that person",
"or to some other person, and, by so putting in fear, induces the person so put in fear then and",
there to deliver up the thing extorted. Explanation The offender is said to be present if he is,
"sufficiently near to put the other person in fear of instant death, of instant hurt, or of instant",
wrongful restraint. I,
llustrations (a) A holds Z down and fraudulently takes Z’s money and jewels from Z’s clothes,
"without Z’s consent. Here A has committed theft, and in order to the committing of that theft,",
has voluntarily caused wrongful restraint to Z. A has therefore committed robbery.,
"(b) A meets Z on the high roads, shows a pistol, and demands Z’s purse. Z in consequence,",
surrenders his purse. Here A has extorted the purse from Z by putting him in fear of instant,
LLaatteessttLLaawwss..ccoomm,
285,
"hurt, and being at the time of committing the extortion in his presence. A has therefore",
committed robbery.,
(c) A meets Z and Z’s child on the high road. A takes the child and threatens to fling it down a,
"precipice, unless Z delivers his purse. Z, in consequence delivers his purse. Here A has",
"extorted the purse from Z, by causing Z to be in fear of instant hurt to the child who is there",
present. A has therefore committed robbery on Z.,
"(d) A obtains property from Z by saying—“Your child is in the hands of my gang, and will be",
"put to death unless you send us ten thousand rupees”. This is extortion, and punishable as",
"such; but it is not robbery, unless Z is put in fear of the instant death of his child.",
"COMMENTS In order that theft may constitute robbery, prosecution has to establish—",
(a) if in order to the committing of theft; or,
(b) in committing the theft; or,
(c) in carrying away or attempting to carry away property obtained by theft;,
(d) the offender for that end i.e. any of the ends contemplated by (a) to (c);,
(e) voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint or,
"fear of instant death or of instant hurt or instant wrongful restraint. In other words, theft would",
only be robbery if for any of the ends mentioned in (a) to (c) the offender voluntarily causes or,
attempts to cause to any person death or hurt or wrongful restraint or fear of instant death or,
"of instant hurt or instant wrongful restraint. If the ends does not fall within (a) to (c) but, the",
offender still causes or attempts to cause to any person death or hurt or wrongful restraint or,
"fear of instant death or of instant hurt or instant wrongful restraint, the offence would not be",
robbery. That (a) or (b) or (c) have to be read conjunctively with (d) and (e). It is only when (a),
"or (b) or (c) co-exist with (d) and (e) or there is a nexus between any of them and (d), (e) would",
"amount to robbery; State of Maharashtra v. Joseph Mingel Koli, (1997) 2 Crimes 228 (Bom).",
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286,
Section 391. Dacoity,
"When five or more persons conjointly commit or attempt to commit a robbery, or where the",
"whole number of persons conjointly committing or attempting to commit a robbery, and",
"persons present and aiding such commission or attempt, amount to five or more, every person",
"so committing, attempting or aiding, is said to commit “dacoity”.",
COMMENTS Dacoity – Defined When robbery is either committed or an attempt to commit it,
"is made by five or more persons then all such persons, who are present or aiding in its",
"commission or in an attempt to commit it, would commit the offence of dacoity; State of",
"Maharashtra v. Joseph Mingel Koli, (1997) 2 Crimes 228 (Bom).",
Section 392. Punishment for robbery,
Whoever commits robbery shall be punished with rigorous imprisonment for a term which may,
"extend to ten years, and shall also be liable to fine; and, if the robbery be committed on the",
"highway between sunset and sunrise, the imprisonment may be extended to fourteen years.",
CLASSIFICATION OF OFFENCE,
Para I Punishment—Rigorous imprisonment for 10 years and fine—Cognizable—Non-,
bailable—Triable by Magistrate of the first class—Non-compoundable.,
"Para II Punishment—Rigorous imprisonment for 14 years, and fine—Cognizable—Non-",
bailable—Triable by Magistrate of the first class—Non-compoundable.,
Section 393. Attempt to commit robbery,
Whoever attempts to commit robbery shall be punished with rigorous imprisonment for a term,
"which may extend to seven years, and shall also be liable to fine.",
LLaatteessttLLaawwss..ccoomm,
287,
CLASSIFICATION OF OFFENCE Punishment—Rigorous imprisonment for 7 years and,
fine—Cognizable—Non-bailable—Triable by Magistrate of the first class—Non-compound-,
able.,
Section 394. Voluntarily causing hurt in,
committing robbery,
"If any person, in committing or in attempting to commit robbery, voluntarily causes hurt, such",
"person, and any other person jointly concerned in committing or attempting to commit such",
"robbery, shall be punished with[imprisonment for life], or with rigorous imprisonment for a term",
1,
"which may extend to ten years, and shall also be liable to fine.",
"CLASSIFICATION OF OFFENCE Punishment—Imprisonment for life, or rigorous",
imprisonment for 10 years and fine—Cognizable—Non-bailable—Triable by Magistrate of the,
first class—Non-compoundable.,
Comments Ingredients Not only the person who actually causes hurt but an associate of,
his/her would equally be liable for the mischief contemplated by this section; Shravan Dashrath,
"Darange v. State of Maharashtra, (1997) 2 Crimes 47 (Bom).",
Section 395. Punishment for dacoity,
"Whoever commits dacoity shall be punished with [imprisonment for life], or with rigorous",
1,
"imprisonment for a term which may extend to ten years, and shall also be liable to fine.",
"CLASSIFICATION OF OFFENCE Punishment—Imprisonment for life, or rigorous",
imprisonment for 10 years and fine—Cognizable—Non-bailable—Triable by Court of,
Session—Non-compoundable.,
Comments Witness Where the presence of informant and other witnesses at the time and,
place of incident was established and their positive evidence regarding the way in which the,
"dacoity was committed found reliable having no previous enmity with accused, no case of",
"false implication established therefore, conviction of accused under section 395 was just and",
"proper; Chhedu v. State of Uttar Pradesh, 2000 Cr LJ 78 (All). ————————-",
"1. Subs. by Act 26 of 1955, sec.117 and sch., for “transportation for life” (w.e.f.1-1-1956).",
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Section 396. Dacoity with murder,
"If any one of five or more persons, who are conjointly committing dacoity, commits murder in",
"so committing dacoity, every one of those persons shall be punished with death,",
"or [imprisonment for life], or rigorous imprisonment for term which may extend to ten years,",
1,
and shall also be liable to fine.,
"CLASSIFICATION OF OFFENCE Punishment—Death, imprisonment for life, or rigorous",
imprisonment for 10 years and fine—Cognizable—Non-bailable—Triable by Court of,
Session—Non-compoundable.,
COMMENTS Ingredients When prosecution failed to establish any nexus between death and,
"commission of dacoity charge under section 396 will fail; Wakil Singh v. State of Bihar, (1981)",
"BLJ 462. In circumstantial evidences utter importance is of linking of chain, as soon as the",
"chain of link is broken, the value of circumstantial evidence gets reduced; State v. Lakshmisher",
"Das, 1999 Cr LJ 2839 (Kant).",
"Punishment On considering special facts of the case, i.e., the age of accused persons and",
"their status in life as also their antecedents, sentence of 10 years in place of sentence of life",
"imprisonment would meet the ends of justice; K.M. Ibrahim alias Bava v. State of Karnataka,",
2000 Cr LJ 197 (Karn). When it is evidentially proved that accused were participating in loot,
"and murder during transaction of offence, each of them is liable to be punished under section",
"396; Kunwar Lal v. State of Madhya Pradesh, 1999 Cr LJ 3632 (MP). ————————",
"1. Subs. by Act 26 of 1955, sec. 117 and Sch., for “transportation for life” (w.e.f. 1-1-",
1956).,
"Section 397. Robbery, or dacoity, with",
attempt to cause death or grievous hurt,
"If, at the time of committing robbery or dacoity, the offender uses any deadly weapon, or",
"causes grievous hurt to any person, or attempts to cause death or grievous hurt to any person,",
the imprisonment with which such offender shall be punished shall not be less than seven,
years.,
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CLASSIFICATION OF OFFENCE Punishment—Rigorous imprisonment for not less than 7,
years—Cognizable—Non-bailable—Triable by Court of Session—Non-compoundable.,
COMMENTS Deadly weapon (i) There can be no quarrel that knife is a deadly weapon within,
"the meaning of section 397; State of Maharashtra v. Vinayak Tukaram Utekar, (1997) 2 Crimes",
615 (Bom).,
(ii) An act would only fall within the mischief of this section if at the time of committing robbery,
or dacoity the offender— (a) uses any deadly weapon; or (b) causes grievous hurt to any,
person; or (c) attempts to cause death or grievous hurt to any person; Shravan Dashrath,
"Datrange v. State of Maharashtra, (1997) 2 Crimes 47 (Bom).",
Purport behind word ‘uses’ What is essential to satisfy the word “uses” for the purposes of,
"section 397, I.P.C. is the robbery being committed by an offender who was armed with a",
deadly weapon which was within the vision of the victim so as to be capable of creating a,
terror in the mind of victim and not that it should be further shown to have been actually used,
"for cutting, stabbing, shooting, as the case may be; Ashfaq v. State (Government of NCT of",
"Delhi), AIR 2004 SC 1253.",
Recovery of weapon When identification of articles alleged to have been recovered from,
accused is not properly proved nor victim could identify accused in identification parade or in,
"court accused cannot be convicted under section 397; Bhurekhan v. State of Madhya Pradesh,",
AIR 1982 SC 948: (1982) Cr LJ 818: (1982) 1 SCC 174: (1982) SCC (Cr) 128.,
Section 398. Attempt to commit robbery or,
dacoity when armed with deadly weapon,
"If, at the time of attempting to commit robbery or dacoity, the offender armed with any deadly",
"weapon, the imprisonment with which such offender shall be punished shall not be less than",
seven years.,
CLASSIFICATION OF OFFENCE Punishment—Rigorous imprisonment for not less than 7,
years—Cognizable—Non-bailable—Triable by Court of Session—Non-compoundable.,
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Section 399. Making preparation to commit,
dacoity,
"Whoever makes, any preparation for committing dacoity, shall be punished with rigorous",
"imprisonment for a term which may extend to ten years, and shall also be liable to fine.",
CLASSIFICATION OF OFFENCE Punishment—Rigorous imprisonment for 10 years and,
fine—Cognizable—Non-bailable—Triable by Court of Session—Non-compoundable.,
Section 400. Punishment for belonging to,
gang of dacoits,
"Whoever, at any time after the passing of this Act, shall belong to a gang of persons associated",
"for the purpose of habitually committing dacoity, shall be punished with [imprisonment for life],",
1,
"or with rigorous imprisonment for a term which may extend to ten years, and shall also be",
liable to fine.,
"CLASSIFICATION OF OFFENCE Punishment—Imprisonment for life, or rigorous",
imprisonment for 10 years and fine—Cognizable—Non-bailable—Triable by Court of,
Session—Non-compoundable. ————————-,
"1. Subs. by Act 26 of 1955, sec. 117 and Sch., for “transportation for life” (w.e.f. 1-1-",
1956).,
Section 401. Punishment for belonging to,
gang of thieves,
"Whoever, at any time after the passing of this Act, shall belong to any wandering or other gang",
"of persons associated for the purpose of habitually committing theft or robbery, and not being",
"a gang of thugs or dacoits, shall be punished with rigorous imprisonment for a term which may",
"extend to seven years, and shall also be liable to fine.",
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CLASSIFICATION OF OFFENCE Punishment—Rigorous imprisonment for 7 years and,
fine—Cognizable—Non-bailable—Triable by Magistrate of the first class—Non-,
compoundable.,
Section 402. Assembling for purpose of,
committing dacoity,
"Whoever, at any time after the passing of this Act, shall be one of five or more persons",
"assembled for the purpose of committing dacoity, shall be punished with rigorous",
"imprisonment for a term which may extend to seven years, and shall also be liable to fine.",
CLASSIFICATION OF OFFENCE Punishment—Rigorous imprisonment for 7 years and,
fine—Cognizable—Non-bailable—Triable by Court of Session—Non-compoundable.,
Section 403. Dishonest misappropriation of,
property,
"Whoever dishonestly mis-appropriates or converts to his own use any movable property, shall",
"be punished with imprisonment of either description for a term which may extend to two years,",
"or with fine, or with both. I",
"llustrations (a) A takes property belonging to Z out of Z’s possession, in good faith, believing,",
"at any time when he takes it, that the property belongs to himself. A is not guilty of theft; but if",
"A, after discovering his mistake, dishonestly appropriates the property to his own use, he is",
guilty of an offence under this section.,
"(b) A, being on friendly terms with Z, goes into Z’s library in Z’s absence, and takes away a",
"book without Z’s express consent. Here, if A was under the impression that he had Z’s implied",
"consent to take the book for the purpose of reading it, A has not committed theft. But, if A",
"afterwards sells the book for his own benefit, he is guilty of an offence under this section.",
"(c) A and B, being joint owners of a horse, A takes the horse out of B’s possession, intending",
"to use it. Here, as A has a right to use the horse, he does not dishonestly misappropriate it.",
LLaatteessttLLaawwss..ccoomm,
292,
"But, if A sells the horse and appropriates the whole proceeds to his own use, he is guilty of an",
offence under this section.,
Explanation I A dishonest misappropriation for a time only is a misappropriation with the,
meaning of this section.,
"Illustration A finds a Government promissory note belonging to Z, bearing a blank",
"endorsement. A, knowing that the note belongs to Z, pledges it with a banker as a security for",
"a loan, intending at a future time to restore it to Z. A has committed an offence under this",
section.,
"Explanation 2 A person who finds property not in the possession of any other person, and",
"takes such property for the purpose of protecting if for, or of restoring it to, the owner does not",
"take or misappropriate it dishonestly, and is not guilty of an offence; but he is guilty of the",
"offence above defined, if he appropriates it to his own use, when he knows or has the means",
"of discovering the owner, or before he has used reasonable means to discover and give notice",
to the owner and has kept the property a reasonable time to enable the owner to claim it. What,
"are reasonable means or what is a reasonable time in such a case, is a question of fact. It is",
"not necessary that the finder should know who is the owner of the property, or that any",
"particular person is the owner of it; it is sufficient if, at the time of appropriating it, he does not",
"believe it to be his own property, or in good faith believe that the real owner cannot be found.",
"Illustrations (a) A finds a rupee on the high road, not knowing to whom the rupee belongs. A",
picks up the rupee. Here A has not committed the offence defined in this section.,
"(b) A finds a letter on the road, containing a bank note. From the direction and contents of the",
letter he learns to whom the note belongs. He appropriates the note. He is guilty of an offence,
under this section.,
(c) A finds a cheque payable to bearer. He can form no conjecture as to the person who has,
"lost the cheque. But the name of the person, who has drawn the cheque, appears. A knows",
that this person can direct him to the person in whose favour the cheque was drawn. A,
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293,
appropriates the cheque without attempting to discover the owner. He is guilty of an offence,
under this section.,
(d) A sees Z drop his purse with money in it. A picks up the purse with the intention of restoring,
"it to Z, but afterwards appropriates it to his own use. A has committed an offence under this",
section.,
"(e) A finds a purse with money, not knowing to whom it belongs; he afterwards discovers that",
"it belongs to Z, and appropriates it to his own use. A is guilty of an offence under this section.",
"(f) A finds a valuable ring, not knowing to whom it belongs. A sells it immediately without",
attempting to discover the owner. A is guilty of an offence under this section.,
"CLASSIFICATION OF OFFENCE Punishment—Imprisonment for 2 years, or fine, or both—",
Non-cognizable—Bailable—Triable by any Magistrate—Compoundable by the owner of the,
property misappropriated with the permission of the court.,
Comments Dishonest misappropriation or conversion of property The words ’converts to his,
own use’ necessarily connote the use or dealing with the property in derogation of the rights,
"of the owner; Ramaswami Nadar v. State of Madras, AIR 1958 SC 56.",
Ingreidents It has been held that the word ‘dishonestly’ and ‘misappropriate’ are necessary,
ingredients of an offence under section 403. Any dispute being about recovery of money is,
"purely of civil nature. Hence a criminal complaint regarding such a matter is not maintainable,",
"U. Dhar v. State of Jharkhand, AIR 2003 SC 974.",
Section 404. Dishonest misappropriation of,
property possessed by deceased person at,
the time of his death,
"Whoever dishonestly misappropriates or converts to his own use property, knowing that such",
"property was in the possession of a deceased person at the time of that person’s decease,",
"and has not since been in the possession of any person legally entitled to such possession,",
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294,
shall be punished with imprisonment of either description for a term which may extend to three,
"years, and shall also be liable to fine; and if the offender at the time of such person’s decease",
"was employed by him as a clerk or servant, the imprisonment may extend to seven years.",
"Illustration Z dies in possession of furniture and money. His servant A, before the money",
"comes into the possession of any person entitled to such possession, dishonestly",
misappropriates it. A has committed the offence defined in this section.,
CLASSIFICATION OF OFFENCE Punishment—Imprisonment for 3 years and fine—Non-,
Cognizable—Bailable—Triable by Magistrate of the first class—Non-compoundable. If by,
clerk or person employed by deceased: Punishment—Imprisonment for 7 years and fine—,
Non-Cognizable—Bailable—Triable by Magistrate of the first class—Non-compoundable.,
Section 405. Criminal breach of trust,
"Whoever, being in any manner entrusted with property, or with any dominion over property,",
"dishonestly misappropriates or converts to his own use that property, or dishonestly uses or",
disposes of that property in violation of any direction of law prescribing the mode in which such,
"trust is to be discharged, or of any legal contract, express or implied, which he has made",
"touching the discharge of such trust, or willfully suffers any other person so to do, commits",
“criminal breach of trust”.,
"[Explanation [1] A person, being an employer [of an establishment whether exempted under",
1 2 3,
"section 17 of the Employees’ Provident funds and Miscellaneous Provisions Act, 1952 (19 of",
"1952), or not] who deducts the employee’s contribution from the wages payable to the",
employee for credit to a Provident Fund or Family Pension Fund established by any law for,
"the time being in force, shall be deemed to have been entrusted with the amount of the",
contribution so deducted by him and if he makes default in the payment of such contribution,
"to said Fund in violation of the said law, shall be deemed to have dishonestly used the amount",
of the said contribution in violation of a direction of law as aforesaid.],
LLaatteessttLLaawwss..ccoomm,
295,
"[Explanation 2 A person, being an employer, who deducts the employees’ contribution from",
4,
the wages payable to the employee for credit to the Employees’ State Insurance Fund held,
and administered by the Employees’ State Insurance Corporation established under the,
"Employees’ State Insurance Act, 1948 (34 of 1948), shall be deemed to have been entrusted",
with the amount of the contribution so deducted by him and if he makes default in the payment,
"of such contribution to the said Fund in violation of the said Act, shall be deemed to have",
dishonestly used the amount of the said contribution in violation of a direction of law as,
aforesaid.],
"Illustrations (a) A, being executor to the will of a deceased person, dishonestly disobeys the",
"law which directs him to divide the effects according to the will, and appropriate them to his",
own use. A has committed criminal breach of trust,
". (b) A is a warehouse-keeper. Z gong on a Journey, entrusts his furniture to A, under a",
contract that it shall be returned on payment of a stipulated sum for warehouse room. A,
dishonestly sells the goods. A has committed criminal breach of trust.,
"(c) A, residing in Calcutta, is agent for Z, residing at Delhi. There is an express or implied",
"contract between A and Z, that all sums remitted by Z to A shall be invested by A, according",
"to Z’s direction. Z remits a lakh of rupees to A, with directions to A to invest the same in",
Company’s paper. A dishonestly disobeys the direction and employs the money in his own,
business. A has committed criminal breach of trust. (,
"d) But if A, in the last illustration, not dishonestly but in good faith, believing that it will be more",
"for Z’s advantage to hold shares in the Bank of Bengal, disobeys Z’s directions, and buys",
"shares in the Bank of Bengal, for Z, instead of buying Company’s paper, here, though Z should",
"suffer loss, and should be entitled to bring a civil action against A, on account of that loss, yet",
"A, not having acted dishonestly, has not committed criminal breach of trust.",
"(e) A, a revenue-officer, is entrusted with public money and is either directed by law, or bound",
"by a contract, express or implied, with the Government, to pay into a certain treasury all the",
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296,
public money which he holds. A dishonestly appropriates the money. A has committed criminal,
breach of trust.,
"(f) A, a carrier, is entrusted by Z with Property to be carried by land or by water. A dishonestly",
misappropriates the property. A has committed criminal breach of trust.,
Comments Criminal Conspiracy Sanction for prosecution is not necessary if a public servant,
is charged for offence of entering into a criminal conspiracy for committed breach of trust;,
"State of Kerala v. Padmanabham Nair, 1999 Cr LJ 3696 (SC).",
Criminal breach of trust: Meaning and extent It must be proved that the beneficial interest in,
the property in respect of which the offence is alleged to have been committed was vested in,
"some person other than the accused, and that the accused held that property on behalf of that",
"person. A relationship is created between the transferor and transferee, whereunder the",
transferor remains the owner of the property and the transferee has legal custody of the,
property for the benefit of the transferor himself or transferee has only the custody of the,
"property for the benefit of the transferor himself or someone else. At best, the transferee",
obtains in the property entrusted to him only special interest limited to claim for his charges in,
"respect of its safe retention, and under no circumstances does he acquire a right to dispose",
of that property in contravention of the condition of the entrustment; Jaswantrai Manilal,
"Akhaney v. State of Bombay, AIR 1956 SC 575.",
"Entrustment The word entrusted in the section is very important unless there is entrustment,",
"there can be no offence under the section; Ramaswami Nadar v. State of Madras, AIR 1958",
SC 56. ————————,
"1. Ins. by Act 40 of 1973, sec. 9 (w.e.f. 1-11-1973).",
"2. Explanation renumbered as Explanation 1 by Act 38 of 1975, sec. 9 (w.e.f. 1-9-1975).",
"3. Ins. by Act 33 of 1988, sec. 27 (w.e.f. 1-8-1988).",
"4.Ins. by Act 38 of 1975, sec. 9 (w.e.f. 1-9-1975).",
LLaatteessttLLaawwss..ccoomm,
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Section 406. Punishment for criminal,
breach of trust,
Whoever commits criminal breach of trust shall be punished with imprisonment of either,
"description for a term which may extend to three years, or with fine, or with both.",
"CLASSIFICATION OF OFFENCE Punishment—Imprisonment for 3 years and fine, or",
both—Cognizable—Non-bailable—Triable by Magistrate of the first class—Compoundable by,
"the owner of the property in respect of which breach of trust has been committed, with the",
permission of the court.,
Section 407. Criminal breach of trust by,
"carrier, etc.",
"Whoever, being entrusted with property as a carrier, wharfinger or warehouse-keeper,",
"commits criminal breach of trust in respect of such property, shall be punished with",
"imprisonment of either description for a term which may extend to seven years, and shall also",
be liable to fine.,
CLASSIFICATION OF OFFENCE Punishment—Imprisonment for 7 years and fine—,
Cognizable—Non-bailable—Triable by Magistrate of the first class—Compoundable by the,
owner of the property in respect of which the breach of trust has been committed with the,
permission of the court.,
Section 408. Criminal breach of trust by,
clerk or servant,
"Whoever, being a clerk or servant or employed as a clerk or servant, and being in any manner",
"entrusted in such capacity with property, or with any dominion over property, commits criminal",
"breach of trust in respect of that property, shall be punished with imprisonment of either",
"description for a term which may extend to seven years, and shall also be liable to fine.",
LLaatteessttLLaawwss..ccoomm,
298,
CLASSIFICATION OF OFFENCE Punishment—Imprisonment for 7 years and fine—,
Cognizable—Non-bailable—Triable by Magistrate of the first class—Compounded by the,
owner of the property in respect of which the breach of trust has been committed with the,
permission of the court.,
Section 409. Criminal breach of trust by,
"public servant, or by banker, merchant or",
agent,
"Whoever, being in any manner entrusted with property, or with any dominion over property in",
"his capacity of a public servant or in the way of his business as a banker, merchant, factor,",
"broker, attorney or agent, commits breach of trust in respect of that property, shall be punished",
"with [imprisonment for life], or with imprisonment of either description for a term which may",
1,
"extend to ten years, and shall also be liable to fine.",
"CLASSIFICATION OF OFFENCE Punishment—Imprisonment for life, or imprisonment for",
10 years and fine—Cognizable—Non-bailable—Triable by Magistrate of the first class—Non-,
compoundable.,
Comments Misappropriation of amount Where the amount was not paid by passengers to,
the accused as such but to the Indian Airlines Corporation and as soon as the receipt for the,
amount actually received from the passengers was given by the accused on behalf of the,
"corporation, he was entrusted with that amount. His conduct in falsifying the counter foil and",
fraudentently misappropriating the amounts would make him guilty of criminal breach of trust,
"punishable under section 409; Som Nath v. State of Rajasthan, AIR 1972 SC 1990. ————",
————,
"1. Subs. by Act 26 of 1955, sec. 117 and Sch., for “transportation for life” (w.e.f. 1-1-",
1956).,
Section 410. Stolen Property,
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299,
"Property, the possession whereof has been transferred by theft, or by extortion, or by robbery,",
and property which has been criminally misappropriated or in respect of which [***] criminal,
1,
"breach of trust has been committed, is designed as “stolen property”, [whether the transfer",
2,
"has been made, or the misappropriation or breach of trust has been committed, within or",
"without [India]]. But, if such property subsequently comes into the possession of a person",
3,
"legally entitled to the possession thereof, it then ceases to be stolen property. ——————",
—–,
"1. The words “the” and “offence of” rep. by Act 12 of 1891, sec. 2 and Sch. I and Act 8",
"of 1882, sec. 9, respectively.",
"2. Ins. by Act 8 of 1882, sec. 9.",
"3. The words “British India” have successively been subs. by the A.O. 1948, the A.O.",
"1950 and Act 3 of 1951, sec. 3 and Sch., to read as above.",
Section 411. Dishonestly receiving stolen,
property,
"Whoever dishonestly receives or retains any stolen property, knowing or having reason to",
"believe the same to be stolen property, shall be punished with imprisonment of either",
"description for a term which may extend to three years, or with fine, or with both.",
"CLASSIFICATION OF OFFENCE Punishment—Imprisonment for 3 years, or fine, or both—",
Cognizable—Non-bailable—Triable by any Magistrate—Compoundable by the owner of the,
property stolen with the permission of the court.,
STATE AMENDMENT Tamil Nadu: Section 411 shall be renumbered as sub-section (1) of,
"that section and after sub-section (1) as so renumbered, the following sub-section shall be",
"added, namely:— “(2) Whoever dishonestly receives or retains any idol or icon stolen from",
any building used as a place of worship knowing or having reason to believe the same to be,
"stolen property shall, notwithstanding anything contained in sub-section (1), be punished with",
rigorous imprisonment which shall not be less than two years but which shall not be less than,
two thousand rupees:,
LLaatteessttLLaawwss..ccoomm,
300,
"Provided that the court may, for adequate and special reasons to be mentioned in the",
"judgment, impose a sentence of imprisonment for a term of less than two years.”. [Vide Tamil",
"Nadu Act 28 of 1993, sec. 3 (w.e.f. 13-7-1993)].",
Section 412. Dishonestly receiving,
property stolen in the commission of a,
dacoity,
"Whoever dishonestly receives or retains any stolen property, the possession whereof he",
"knows or has reason to believe to have been transferred by the commission of dacoity, or",
"dishonestly receives from a person, whom he knows or has reason to believe to belong or to",
"have belonged to a gang of dacoity, property which he knows or has reason to believe to have",
"been stolen, shall be punished with [imprisonment for life], or with rigorous imprisonment for",
1,
"a term which may extend to ten years, and shall also be liable to fine.",
"CLASSIFICATION OF OFFENCE Punishment—Imprisonment for life, or rigorous",
imprisonment for 10 years and fine—Cognizable—Non-bailable—Triable by Court of Ses-,
sion—Non-compoundable.,
Comments (i) When no part of prosecution case is found reliable including the alleged,
recovery of stolen property at the instance of accused it seems to be on effort by police to,
involve the accused persons by hook or by crook therefore conviction of co-accused is also,
"liable to be set aside; State v. Chhotey Lal, 1999 Cr LJ 3411 (Del).",
"(ii) When articles were received soon after dacoity and proved to have been stolen in dacoity,",
offence falls under section 412 and not under section 395; Amar Singh v. State of Madhya,
"Pradesh, AIR 1982 SC 129: (1982) Cr LJ 610. —————————",
"1. Subs. by Act 26 of 1955, sec. 117 and Sch., for “transportation for life” (w.e.f. 1-1-",
1956).,
Section 413. Habitually dealing in stolen,
property,
LLaatteessttLLaawwss..ccoomm,
301,
Whoever habitually receives or deals in property which he knows or has reason to believe to,
"be stolen property, shall be punished with [imprisonment for life], or with imprisonment of",
1,
"either description for a term which may extend to ten years, and shall also be liable to fine.",
"CLASSIFICATION OF OFFENCE Punishment—Imprisonment for life, or imprisonment for",
10 years and fine—Cognizable—Non-bailable—Triable by Court of Session—Non-,
compoundable. —————————-,
"1. Subs. by Act 26 of 1955, sec. 117 and Sch., for “transportation for life” (w.e.f. 1-1-",
1956).,
Section 414. Assisting in concealment of,
stolen property,
Whoever voluntarily assists in concealing or disposing of or making away with property which,
"he knows or has reason to believe to be stolen property, shall be punished with imprisonment",
"of either description for a term which may extend to three years, or with fine, or with both.",
"CLASSIFICATION OF OFFENCE Punishment—Imprisonment for 3 years, or fine, or both—",
Cognizable—Non-bailable—Triable by any Magistrate—Compounded by the owner of the,
property stolen with the permission of the court.,
Section 415. Cheating,
"Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived",
"to deliver any property to any person, or to consent that any person shall retain any property,",
or intentionally induces the person so deceived to do or omit to do anything which he would,
"not do or omit if he were not so deceived, and which act or omission causes or is likely to",
"cause damage or harm to that person in body, mind, reputation or property, is said to “cheat”.",
Explanation A dishonest concealment of facts is deception within the meaning of this section.,
LLaatteessttLLaawwss..ccoomm,
302,
"Illustrations (a) A, by falsely pretending to be in the Civil Service, intentionally deceives Z,",
and thus dishonestly induces Z to let him have on credit goods for which he does not mean to,
pay. A cheats.,
"(b) A, by putting a counterfeit make on an article, intentionally deceives Z into a belief that this",
"article was made by a certain celebrated manufacturer, and thus dishonestly induces Z to buy",
and pay for the article. A cheats.,
"(c) A, by exhibiting to Z a false sample of an article, intentionally deceives Z into believer that",
"the article corresponds with the sample, and thereby, dishonestly induces Z to buy and pay",
for the article. A cheats.,
"(d) A, by tendering in payment for an article a bill on a house with which A keeps on money,",
"and by which A expects that the will be dishonored, intentionally deceives Z, and thereby",
"dishonestly induces Z to deliver the article, intending not to pay for it. A cheats.",
"(e) A, by pledging as diamonds article which he knows are not diamonds, intentionally",
"deceives Z, and thereby dishonestly induces Z to lend money. A cheats.",
(f) A intentionally deceives Z into a belief that A means to repay any money that Z may led to,
him and thereby dishonestly induces Z to lend him money. A not intending to repay it A cheats.,
(g) A intentionally deceives Z into a belief that A means to deliver to Z a certain quantity of,
indigo plant which he does not intend to deliver and thereby dishonestly induces Z to advance,
"money upon the faith of such deliver. A cheats; but if A, at the of obtaining the money, intends",
"to deliver the indigo plant, and afterwards breaks his contract and does not deliver it, he does",
"not cheat, but is liable only to a civil action for breach of contract.",
(h) A intentionally deceives Z into a belief that A has performed A’s part of a contract made,
"with Z, which he has not performed, and thereby dishonestly induces Z to pay money. A",
cheats.,
LLaatteessttLLaawwss..ccoomm,
303,
"(i) A sells and coveys an estate to B.A, knowing that in consequence of such sale he has no",
"right to the property, sells or mortgages the same to Z, without disclosing the fact of the",
"previous sale and conveyance to B, and receives the purchase or mortgage money for Z. A",
cheats.,
Section 416. Cheating by personation,
"A person is said to “cheat by personation” if he cheats by pretending to be some other person,",
"or by knowingly substituting one person for another, or representing that he or any other",
person is a person other than he or such other person really is.,
Explanation The offence is committed whether the individual personated is a real or imaginary,
person.,
Illustration (a) A cheats by pretending to be a certain rich banker of the same name. A cheats,
by personation.,
"(b) A cheats by pretending to be B, a person who is deceased. A cheats by personation.",
Section 417. Punishment for cheating,
Whoever cheats shall be punished with imprisonment of either description for a term which,
"may extend to one year, or with fine, or with both. CLASSIFICATION OF OFFENCE",
"Punishment—Imprisonment for 1 year, or fine, or both—Non-cognizable—Bailable—Triable",
by any Magistrate—Compoundable by the person cheated with the permission of the court.,
Section 418. Cheating with knowledge that,
wrongful loss may ensue to person whose,
interest offender is bound to protect,
Whoever cheats with the knowledge that he is likely thereby to cause wrongful loss to a person,
"whose interest in the transaction to which the cheating relates, he was bound, either by law,",
"or by a legal contract, to protect, shall be punished with imprisonment of either description for",
"a term which may extend to three years, or with fine, or with both.",
LLaatteessttLLaawwss..ccoomm,
304,
"CLASSIFICATION OF OFFENCE Punishment—Imprisonment for 3 years, or fine, or both—",
Non-cognizable—Bailable—Triable by any Magistrate—Compoundable by the person,
cheated with the permission of the court.,
Section 419. Punishment for cheating by,
personation,
Whoever cheats by personation shall be punished with imprisonment of either description for,
"a term which may extend to three years, or with fine, or with both.",
"CLASSIFICATION OF OFFENCE Punishment—Imprisonment for 3 years, or fine, or both—",
Cognizable—Bailable—Triable by any Magistrate—Compoundable by the person cheated,
with the permission of the court.,
Section 420. Cheating and dishonestly,
inducing delivery of property,
Whoever cheats and thereby dishonestly induces the person deceived any property to any,
"person, or to make, alter or destroy the whole or any part of a valuable security, or anything",
"which is signed or sealed, and which is capable of being converted into a valuable security,",
shall be punished with imprisonment of either description for a term which may extend to seven,
"years, and shall also be liable to fine.",
CLASSIFICATION OF OFFENCE Punishment—Imprisonment for 7 years and fine—,
Cognizable—Non-bailable—Triable by Magistrate of the first class—Compoundable by the,
person cheated with the permission of the court.,
Comments Ingredients (i) Even if the allegation made in the complaint are accepted to be true,
"and correct, the appellants cannot be said to have committed any offence of cheating. Since",
the appellants were not in picture at all the time when the complainant alleges to have spent,
"money in improving the bottling plant, neither any guilty intention can be attributed to them nor",
LLaatteessttLLaawwss..ccoomm,
305,
there can possibly be any intention on their part to deceive complainant; Ajay Mitra v. State of,
"Madhya Pradesh, AIR 2003 SC 1069.",
(ii) The offence of cheating is established when the accused thereby induced that person to,
deliver any property or to do or to omit to do something which he would otherwise not have,
"done or omitted; Mahadeo Prasad v. State of Bengal, AIR 1954 SC 724.",
Section 421. Dishonest or fraudulent,
removal or concealment of property to,
prevent distribution among creditors,
"Whoever dishonestly or fraudulently removes, conceals or delivers to any person, or transfer",
"or causes to be transferred to any person, without adequate consideration, any property,",
"intending thereby to prevent, or knowing it to be likely that he will thereby prevent, the",
distribution of that property according to law among his creditors or the creditors of any other,
"person, shall be punished with imprisonment of either description for a term which may extend",
"to two years, or with fine, or with both.",
"CLASSIFICATION OF OFFENCE Punishment—Imprisonment for 2 years, or fine, or both—",
Non-cognizable—Bailable—Triable by any Magistrate—Compoundable by the creditor who,
are affected thereby with the permission of the court.,
Section 422. Dishonestly or fraudulently,
preventing debt being available for,
creditors,
Whoever dishonestly or fraudulently prevents any debt or demand due to himself or to any,
other person from being made available according to law for payment of his debts or the debts,
"of such other person, shall be punished with imprisonment of either description for a term",
"which may extend to two years, or with fine, or with both.",
LLaatteessttLLaawwss..ccoomm,
306,
"CLASSIFICATION OF OFFENCE Punishment—Imprisonment for 2 years, or fine, or both—",
Non-cognizable—Bailable—Triable by any Magistrate—Compoundable by the creditors who,
are affected thereby with the permission of the court.,
Section 423. Dishonest or fraudulent,
execution of deed of transfer containing,
false statement of consideration,
"Whoever dishonestly or fraudulently signs, executes or becomes a party to any deed or",
"instrument which purports to transfer or subjects to any charge any property , or any interest",
"therein, and which contains any false statement relating to the consideration for such transfer",
"or charge, or relating to the person or persons for whose use or benefit it is really intended to",
"operate, shall be punished with imprisonment of either description for a term which may extend",
"to two years, or with fine , or with both.",
"CLASSIFICATION OF OFFENCE Punishment—Imprisonment for 2 years, or fine, or both—",
Non-cognizable—Bailable—Triable by any Magistrate—Compoundable by the person,
affected thereby with the permission of the court.,
Section 424. Dishonest or fraudulent,
removal or concealment of property,
Whoever dishonestly or fraudulently conceals or removes any property of himself or any other,
"person, or dishonestly or fraudulently assists in the concealment or removal thereof, or",
"dishonestly releases any demand or claim to which he is entitled, shall be punished with",
"imprisonment of either description for a term which may extend to two years, or with fine, or",
with both.,
"CLASSIFICATION OF OFFENCE Punishment—Imprisonment for 2 years, or fine, or both—",
Non-cognizable—Bailable—Triable by any Magistrate—Compoundable by the person,
affected thereby with the permission of the court.,
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307,
Section 425. Mischief,
"Whoever with intent to cause, or knowing that he is likely to cause, wrongful loss or damage",
"to the public or to any person, cause the destruction of any property, or any such change in",
"any property or in the situation thereof as destroys or diminishes its value or utility, or affects",
"it injuriously, commits “mischief”.",
Explanation 1 It is not essential to the offence of mischief that the offender should intend to,
cause loss or damage to the owner of the property injured or destroyed. It is sufficient if he,
"intends to cause, or knows that he is likely to cause, wrongful loss or damage to any person",
"by injuring any property, whether it belongs to that person or not.",
Section 426. Punished for mischief,
Whoever commits mischief shall be punished with imprisonment of either description for a,
"term which may extend to three months, or with fine, or with both.",
"CLASSIFICATION OF OFFENCE Punishment—Imprisonment for 3 months, or fine, or",
both—Non-cognizable—Bailable—Triable by any Magistrate—Compoundable by the person,
to whom the loss or damage is caused.,
Section 427. Mischief causing damage to the,
amount of fifty rupees,
Whoever commits mischief and thereby causes loss or damage to the amount of fifty rupees,
"or upwards, shall be punished with imprisonment of either description for a term which may",
"extend to two years, or with fine, or with both.",
"CLASSIFICATION OF OFFENCE Punishment—Imprisonment for 2 years, or fine, or both—",
Non-cognizable—Bailable—Triable by any Magistrate—Compoundable by the person to,
whom the loss or damage is caused.,
Section 428. Mischief by killing or maiming,
animal of the value of ten rupees,
LLaatteessttLLaawwss..ccoomm,
308,
"Whoever commits mischief by killing, poisoning, maiming or rendering useless any animal or",
"animals of the value of ten rupees or upwards, shall be punished with imprisonment of either",
"description for a term which may extend to two years, or with fine, or with both.",
"CLASSIFICATION OF OFFENCE Punishment—Imprisonment for 2 years, or fine, or both—",
Cognizable—Bailable—Triable by any Magistrate—Compoundable by the owner of the animal,
with the permission of the court.,
Section 429. Mischief by killing or maiming,
"cattle, etc., of any value or any animal of the",
value of fifty rupees,
"Whoever commits mischief by killing, poisoning, maiming or rendering useless, any elephant,",
"camel, horse, mule, buffalo, bull, cow or ox, whatever may be the value thereof, or any other",
"animal of the value of fifty rupees or upwards, shall be punished with imprisonment of either",
"description for a term which may extend to five years, or with fine, or with both.",
"CLASSIFICATION OF OFFENCE Punishment—Imprisonment for 5 years, or fine, or both—",
Cognizable—Bailable—Triable by any Magistrate of the first class—Compoundable by the,
owner of the cattle or animal with the permission of the court.,
Section 430. Mischief by injury to works of,
irrigation or by wrongfully diverting water,
"Whoever commits mischief by doing any act which causes, or which he knows to be likely to",
"cause, a diminution of the supply of the water for agricultural purposes, or for food or drink for",
"human beings or for animals which are property, or for cleanliness or for carrying on any",
"manufacture, shall be punished with imprisonment of either description far a term which may",
"extend to five years, or with fine, or with both.",
"CLASSIFICATION OF OFFENCE Punishment—Imprisonment for 5 years, or fine, or both—",
Cognizable—Bailable—Triable by Magistrate of the first class—Compoundable by the person,
to whom the loss or damage is caused with the permission of the court.,
LLaatteessttLLaawwss..ccoomm,
309,
Section 431. Mischief by injury to public,
"road, bridge, river or channel",
Whoever commits mischief by doing any act which renders or which he knows to be likely to,
"render any public road, bridge, navigable river or navigable channel, natural or artificial,",
"impassable or less safe for traveling or conveying property, shall be punished with",
"imprisonment of either description for a term which may extend to five years, or with fine, or",
with both.,
"CLASSIFICATION OF OFFENCE Punishment—Imprisonment for 5 years, or fine, or both—",
Cognizable—Bailable—Triable by Magistrate of the first class—Non-compoundable.,
Section 432. Mischief by causing inundation,
or obstruction to public drainage attended,
with damage,
Whoever commits mischief by doing any act which causes or which he knows to be likely to,
"cause an inundation or an obstruction to any public drainage attended with injury or damage,",
shall be punished with imprisonment of either description for term which may extend to five,
"years, or with fine, or with both.",
"CLASSIFICATION OF OFFENCE Punishment—Imprisonment for 5 years, or fine, or both—",
Cognizable—Bailable—Triable by Magistrate of the first class—Non-compoundable.,
"Section 433. Mischief by destroying, moving",
or rendering less useful a light-house or sea-,
mark,
Whoever commits mischief by destroying or moving any light-house or other light used as a,
"sea-mark or any sea-mark or buoy or other thing placed as a guide for navigators, or by any",
"act which renders any such light-house, sea-mark, buoy or other such thing as aforesaid less",
"useful as a guide for navigators, shall be punished with imprisonment of either description for",
"a term which may extend to seven years, or with fine, or with both.",
LLaatteessttLLaawwss..ccoomm,
310,
"CLASSIFICATION OF OFFENCE Punishment—Imprisonment for 7 years, or fine, or both—",
Cognizable—Bailable—Triable by Magistrate of the first class—Non-compoundable.,
Section 434. Mischief by destroying or,
"moving, etc., a land- mark fixed by public",
authority,
Whoever commits mischief by destroying or moving any land-mark fixed by the authority of a,
"public servant, or by any act which renders such land-mark less useful as such, shall be",
"punished with imprisonment of either description for a term which may extend to one years,",
"or with fine, or with both.",
"CLASSIFICATION OF OFFENCE Punishment—Imprisonment for 1 year, or fine, or both—",
Non-cognizable—Bailable—Triable by any Magistrate—Non-compoundable.,
Section 435. Mischief by fire or explosive,
substance with intent to cause damage to,
amount of one hundred or (in case of,
agricultural produce) ten rupees,
"Whoever commits mischief by fire or any explosive substance intending to cause, or knowing",
"it to be likely that he will thereby cause, damage to any property to the amount of one hundred",
"rupees or upwards[or(where the property is agricultural produce) ten rupees or upwards], shall",
1,
be punished with imprisonment of either description for a term which may extend to seven,
"years, and shall also be liable to fine.",
CLASSIFICATION OF OFFENCE Punishment—Imprisonment for 7 years and fine—,
Cognizable—Bailable—Triable by Magistrate of the first class—Non-compoundable. ———,
"—————– 1. Ins. by Act 8 of 1882, sec. 10.",
Section 436. Mischief by fire or explosive,
"substance with intent to destroy house, etc.",
LLaatteessttLLaawwss..ccoomm,
311,
"Whoever commits mischief by fire or any explosive substance, intending to cause, or knowing",
"it to be likely that he will thereby cause, the destruction of any building which is ordinarily used",
"as a place of worship or as a human dwelling or as a place for the custody of property, shall",
"be punished with [imprisonment for life], or with imprisonment of either description for a term",
1,
"which may extend to ten years, and shall also be liable to fine.",
"CLASSIFICATION OF OFFENCE Punishment—Imprisonment for life, or imprisonment for",
10 years and fine—Cognizable—Non-bailable—Triable by Court of Session—Non-,
"compoundable. —————————– 1. Subs. by Act 26 of 1955, sec. 117 and Sch., for",
“transportation for life” (w.e.f. 1-1-1956).,
Section 437. Mischief with intent to destroy,
or make unsafe a decked vessel or one of,
twenty tons burden,
Whoever commits mischief to any decked vessel or any vessel of a burden of twenty tons or,
"upwards, intending to destroy or render unsafe, or knowing it to be likely that he will thereby",
"destroy or render unsafe, that vessel, shall be punished with imprisonment of either description",
"for a term which may extend to ten years, and shall also be liable to fine.",
CLASSIFICATION OF OFFENCE Punishment—Imprisonment for 10 years and fine—,
Cognizable—Non-bailable—Triable by Court of Session—Non-compoundable.,
Section 438. Punishment for the mischief,
described in section 437 committed by fire or,
explosive substance,
"Whoever commits, or attempts to commit, by fire or any explosive substance, such mischief",
"as is described in the last preceding section, shall be punished with [imprisonment for life], or",
1,
"with imprisonment or either description for a term which may extend to ten years, and shall",
also be liable to fine.,
"CLASSIFICATION OF OFFENCE Punishment—Imprisonment for life, or imprisonment for",
10 years and fine—Cognizable—Non-bailable—Triable by Court of Session—Non-,
LLaatteessttLLaawwss..ccoomm,
312,
"compoundable. ———————— 1. Subs. by Act 26 of 1955, sec. 117 and Sch., for",
“transportation for life” (w.e.f. 1-1-1956).,
Section 439. Punishment for intentionally,
running vessel aground or ashore with intent,
"to commit theft, etc",
"Whoever intentionally runs any vessel aground or ashore, intending to commit theft of any",
"property contained therein or to dishonestly misappropriate any such property, or with intent",
"that such theft or misappropriation of property may be committed, shall be punished with",
"imprisonment of either description for a term which may extend to ten years, and shall also be",
liable to fine.,
CLASSIFICATION OF OFFENCE Punishment—Imprisonment for 10 years and fine—,
Cognizable—Non-bailable—Triable by Court of Session—Non-compoundable.,
Section 440. Mischief committed after,
preparation made for causing death or hurt,
"Whoever commits mischief having made preparation for causing to any person death, or hurt,",
"or wrongful restraint, or fear of death or of hurt, or of wrongful restraint, shall be punished with",
imprisonment of either description for a term which may extend to five years and shall also be,
liable to fine.,
CLASSIFICATION OF OFFENCE Punishment—Imprisonment for 5 years and fine—,
Cognizable—Bailable—Triable by Magistrate of the first class—Non-compoundable.,
Section 441. Criminal trespass,
Whoever enters into or upon property in the possession of another with intent to commit an,
"offence or to intimidate, insult or annoy any person in possession of such property, or having",
"lawfully entered into or upon such property, unlawfully remains there with intent thereby to",
"intimidate, insult or annoy any such person, or with intent to commit an offence, is said to",
commit “criminal trespass”.,
LLaatteessttLLaawwss..ccoomm,
313,
"STATE AMENDMENT Orissa For section 441, the following section shall be substituted,",
namely:— “441. Criminal Trespass.—Whoever enters into or upon property in possession of,
"another with intent to commit an offence or to intimidate, insult or annoy any person in",
"possession of such property, or, having lawfully entered into or upon such property, unlawfully",
"remains there with intent thereby to intimidate, insult or annoy any such person or with intent",
"to commit an offence, or having lawfully entered into or upon such property, remains there",
with the intention of taking unauthorised possession or making unauthorised use of such,
"property and fails to withdraw such property or its possession or use, when called upon to do",
"so by that another person by notice in writing, duly served on him, is said to have commit",
"“criminal trespass.“ [Vide Orissa Act 22 of 1986, sec. 2 (w.e.f. 6-12-1986)].",
"Uttar Pradesh For section 441, substitute the following:— “441. Criminal Trespass.—Whoever",
enters into or upon property in possession of another with intent to commit an offence or to,
"intimidate, insult or annoy and person in possession of such property, or having lawfully",
"entered into or upon such property, unlawfully remains therewith intent thereby to intimidate,",
"insult or annoy any such person, or with intent to commit an offence, or, having entered into",
"or upon such property, whether before or after the coming into force of the Criminal Law (U.P.",
"Amendment) Act, 1961, with the intention of taking unauthorised possession or making",
unauthorised use of such property fails to withdraw from such property or its possession or,
"use, when called upon to do so by that another person by notice in writing, duly served upon",
"him, by the date specified in the notice, is said to commit “criminal trespass”. [Vide Uttar",
"Pradesh Act 31 of 1961, sec. 2 (w.e.f. 13-11-1961)].",
Section 442. House trespass,
"Whoever commits criminal trespass by entering into or remaining in any building, tent or vessel",
"used as a human dwelling or any building used as a place for worship, or as a place for the",
"custody of property, is said to commit “house-trespass”.",
Explanation The introduction of any part of the criminal trespasser’s body is entering sufficient,
to constitute house-trespass.,
LLaatteessttLLaawwss..ccoomm,
314,
Section 443. Lurking house-trespass,
Whoever commits house-trespass having taken precautions to conceal such house-trespass,
"from some person who has a right to exclude or eject the trespasser from the building, tent or",
"vessel which is the subject of the trespass, is said to commit “lurking house-trespass”.",
Section 444. Lurking house-trespass by night,
"Whoever commits lurking house-trespass after sunset and before sunrise, is said to commit",
“lurking house-trespass by night”.,
Section 445. Housing breaking,
A person is said to commit “house-breaking” who commits house-trespass if he effects his,
"entrance into the house or any part of it in any of the six ways hereinafter described; or if,",
"being in the house or any part of it for the purpose of committing an offence, or, having",
"committed an offence therein, he quits the house or any part of it in any of such six ways, that",
is to say—,
"First.—If he enters or quits through a passage by himself, or by any abettor of the house-",
"trespass, in order to the committing of the house-trespass.",
"Secondly.—If he enters or quits through any passage not intended by any person, other than",
"himself or an abettor of the offence, for human entrance; or through any passage to which he",
has obtained access by scaling or climbing over any wall or building.,
Thirdly.—If he enters or quits through any passage which he or any abettor of the house-,
"trespass has opened, in order to the committing of the house-trespass by any means by which",
that passage was not intended by the occupier of the house to be opened.,
Fourthly.—If he enters or quits by opening any lock in order to the committing of the house-,
"trespass, or in order to the quitting of the house after a house-trespass.",
LLaatteessttLLaawwss..ccoomm,
315,
Fifthly.—If he effects his entrance or departure by using criminal force or committing an assault,
or by threatening any person with assault.,
Sixthly.—If he enters or quits by any passage which he knows to have been fastened against,
"such entrance or departure, and to have been unfastened by himself or by an abettor of the",
house-trespass.,
"Explanation Any out-house or building occupied with a house, and between which and such",
"house there is an immediate internal communication, is part of the house within the meaning",
of this section.,
"Illustrations (a) A commits house-trespass by making a hole through the wall of Z’s house,",
and putting his hand through the aperture. This is house-breaking.,
(b) A commits house-trespass by creeping into a ship at a port-hole between decks. This is,
house-breaking.,
(c) A commits house-trespass by entering Z’s house through a window. This is house-,
breaking.,
"(d) A commits house-trespass by entering Z’s house through the door, having opened a door",
which was fastened. This is house-breaking.,
"(e) A commits house-trespass by entering Z’s house through the door, having lifted a latch by",
putting a wire through a hole in the door. This is house-breaking.,
"(f) A finds the key of Z’s house door, which Z had lost, and commits house-trespass by entering",
"Z’s house, having opened the door with that key. This is house-breaking.",
"(g) Z is standing in his doorway. A forces a passage by knocking Z down, and commits house-",
trespass by entering the house. This is house-breaking.,
LLaatteessttLLaawwss..ccoomm,
316,
"(h) Z, the door-keeper of Y, is standing in Y’s doorway. A commits house-trespass by entering",
"the house, having deterred Z from opposing him by threatening to beat him. This is house-",
breaking.,
Section 446. House-breaking by night,
"Whoever commits house-breaking after sunset and before sunrise, is said to commit “house-",
breaking by night”.,
Section 447. Punishment for criminal,
trespass,
Whoever commits criminal trespass shall be punished with imprisonment of either description,
"for a term which may extend to three months, with fine or which may extend to five hundred",
"rupees, or with both.",
"CLASSIFICATION OF OFFENCE Punishment—Imprisonment for 3 months, or fine of 500",
"rupees, or both—Cognizable—Bailable—Triable by any Magistrate—Compoundable by the",
person in possession of the property trespassed upon.,
Comments Mere vague allegations are not sufficient for conviction under section 447 for,
"criminal trespass; Bhaskar Chattoraj v. State of West Bengal, (1991) Cr LJ 429 (SC).",
Section 448. Punishment for house-trespass,
Whoever commits house-trespass shall be punished with imprisonment of either description,
"for a term which may extend to one year, or with fine or which may extend to one thousand",
"rupees, or with both.",
"CLASSIFICATION OF OFFENCE Punishment—Imprisonment for one year, or fine of 1,000",
"rupees, or both—Cognizable—Bailable—Triable by any Magistrate—Compoundable by the",
person in possession of the property trespassed upon.,
Section 449. House-trespass in order to,
commit offence punishable with death,
LLaatteessttLLaawwss..ccoomm,
317,
Whoever commits house-trespass in order to the committing of any offence punishable with,
"death, shall be punishable with [imprisonment for life], or with rigorous imprisonment for a",
1,
"term not exceeding ten years, and shall also be liable to fine.",
"CLASSIFICATION OF OFFENCE Punishment—Imprisonment for life, or rigorous",
imprisonment for 10 years and fine—Cognizable—Non-bailable—Triable by Court of Ses-,
"sion—Non-compoundable. —————————- 1. Subs. by Act 26 of 1955, sec. 117 and Sch.,",
for “transportation for life” (w.e.f. 1-1-1956).,
Section 450. House-trespass in order to,
commit offence punishable with,
imprisonment for life,
Whoever commits house-trespass in order to the committing of any offence punishable,
"with [imprisonment for life], shall be punished with imprisonment of either description for a",
1,
"term not exceeding ten years, and shall also be liable to fine.",
CLASSIFICATION OF OFFENCE Punishment—Imprisonment for 10 years and fine—,
Cognizable—Non-bailable—Triable by Court of Session—Non-compoundable. ——————,
"———- 1. Subs. by Act 26 of 1955, sec. 117 and Sch., for “transportation for life” (w.e.f. 1-1-",
1956).,
Section 451. House-trespass in order to,
commit offence punishable with,
imprisonment,
Whoever commits house-trespass in order to the committing of any offence punishable with,
"imprisonment, shall be punished with imprisonment of either description for a term which may",
"extend to two years, and shall also be liable to fine; and if the offence intended to be committed",
"is theft, the term of the imprisonment may be extended to seven years.",
CLASSIFICATION OF OFFENCE,
Para I Punishment—Imprisonment for 2 years and fine—Cognizable—Bailable—Triable by,
any Magistrate.,
LLaatteessttLLaawwss..ccoomm,
318,
Para II Punishment—Imprisonment for 7 years and fine—Cognizable—Non-bailable—Triable,
by any Magistrate—Compoundable by the person in possession of the house trespassed upon,
with the permission of the court.,
Section 452. House-trespass after preparation,
"for hurt, assault or wrongful restraint",
"Whoever commits house-trespass, having made preparation for causing hurt to any person or",
"for assaulting any person, or for wrongfully restraining any person, or for putting any person",
"in fear of hurt, or of assault, or of wrongful restraint, shall be punished with imprisonment of",
"either description for a term which may extend to seven years, and shall also be liable to fine.",
CLASSIFICATION OF OFFENCE Punishment—Imprisonment for 7 years and fine—,
Cognizable—Non-bailable—Triable by any Magistrate—Non-compoundable.,
Section 453. Punishment for lurking house-,
trespass or house-breaking,
"Whoever commits lurking house-trespass or house-breaking, shall be punished with",
"imprisonment of either description for a term which may extend to two years, and shall also",
be liable to fine.,
CLASSIFICATION OF OFFENCE Punishment—Imprisonment for 2 years and fine—,
Cognizable—Non-bailable—Triable by any Magistrate—Non-compoundable.,
Section 454. Lurking house-trespass or,
house-breaking in order to commit offence,
punishable with imprisonment,
"Whoever commits lurking house-trespass or house-breaking, in order to the committing of any",
"offence punishable with imprisonment, shall be punished with imprisonment of either",
"description for a term which may extend to three years, and shall also be liable to fine ; and if",
"the offence intended to be committed is theft, the term of the imprisonment may be extended",
to ten years.,
LLaatteessttLLaawwss..ccoomm,
319,
CLASSIFICATION OF OFFENCE,
Para I Punishment—Imprisonment for 3 years and fine—Cognizable—Non-bailable—Triable,
by any Magistrate—Non-compoundable.,
Para II Punishment—Imprisonment for 10 years and fine—Cognizable—Non-bailable—,
Triable by Magistrate of the first class—Non-compounded.,
STATE AMENDMENT Tamil Nadu Section 454 shall be renumbered as sub-section (1) of,
"that section and after sub-section (1) as so renumbered, the following sub-section shall be",
"added, namely:— “(2) Whoever commits lurking house-trespass or house-breaking in any",
"building used as a place of worship, in order to the committing of the offence of theft of any",
"idol or icon from such building, shall notwithstanding anything contained in sub-section (1), be",
punished with rigorous imprisonment which shall not be less than three years but which may,
extend to ten years and with fine which shall not be less than five thousand rupees: Provided,
"that the court may, for adequate and special reasons to be mentioned in the judgment, impose",
a sentence of imprisonment for a term of less than three years.” [Vide Tamil Nadu Act 28 of,
"1993, sec. 4 (w.e.f. 13-7-1993)].",
Section 455. Lurking house-trespass or,
"house-breaking after preparation for hurt,",
assault or wrongful restraint,
"Whoever commits lurking house-trespass, or house-breaking, having made preparation for",
"causing hurt to any person, or for assaulting any person, or for wrongfully restraining any",
"person, or for putting any person in fear of hurt or of assault or of wrongful restraint, shall be",
"punished with imprisonment of either description for a term which may extend to ten years,",
and shall also be liable to fine.,
CLASSIFICATION OF OFFENCE Punishment—Imprisonment for 10 years and fine—,
Cognizable—Non-bailable—Triable by Magistrate of the first class—Non-compoundable.,
Section 456. Punishment for lurking house-,
trespass or house-breaking by night,
LLaatteessttLLaawwss..ccoomm,
320,
"Whoever commits lurking house-trespass by night, or house-breaking by night, shall be",
"punished with imprisonment of either description for a term which may extend to three years,",
and shall also be liable to fine.,
CLASSIFICATION OF OFFENCE Punishment—Imprisonment for 3 years and fine—,
Cognizable—Non-bailable—Triable by any Magistrate—Non-compoundable.,
Section 457. Lurking house trespass or,
house-breaking by night in order to commit,
offence punishable with imprisonment,
"Whoever commits lurking house-trespass by night, or house-breaking by night, in order to the",
"committing of any offence punishable with imprisonment, shall be punished with imprisonment",
"of either description for a term which may extend to five years, and shall also be liable to fine;",
"and, if the offence intended to be committed is theft, the term of the imprisonment may be",
extended to fourteen years.,
CLASSIFICATION OF OFFENCE,
Para I Punishment—Imprisonment for 5 years and fine—Cognizable—Non-bailable—Triable,
by Magistrate of the first class—Non-compoundable.,
Para II Punishment—Imprisonment for 14 years and fine—Cognizable—Non-bailable—,
Triable by Magistrate of the first class.,
STATE AMENDMENT Tamil Nadu Section 457 shall be renumbered as sub-section (1) of,
"that section and after sub-section (1) as so renumbered, the following sub-section shall be",
"added, namely:— “(2) Whoever commits lurking house-trespass by night or house-breaking",
"by night in any building used as a place of worship, in order to the committing of the offence",
"of theft of any idol or icon from such building, shall, notwithstanding anything contained in sub-",
"section (1), be punished with rigorous imprisonment which shall not be less than three years",
but which may extend to fourteen years and with fine which shall not be less than five thousand,
"rupees: Provided that the court may, for adequate and special reasons to be mentioned in the",
LLaatteessttLLaawwss..ccoomm,
321,
"judgment, impose a sentence of imprisonment for a term of less than three years.” [Vide Tamil",
"Nadu Act 28 of 1993, sec. 5 (w.e.f. 13-7-1993)].",
Uttar Pradesh Section 457 shall be renumbered as sub-section (1) of that section and after,
"sub section (1) as so renumbered, the following sub-section shall be added namely— “(2)",
Whoever commits lurking house trespass by night or house breaking by night in any building,
used as a place of worship in order to the committing of the offence of theft of any idol or icon,
from such buildings shall notwithstanding any thing contained in sub-section (1) be punished,
with rigorous imprisonment which shall not be less than three years but which may extend to,
fourteen years and with fine which shall not be less than five thousand rupees: Provided that,
"the court may, for adequate and special reasons to be mentioned in the judgment, impose a",
sentence of imprisonment for a term of less than three years.” [Vide Uttar Pradesh Act 24 of,
"1995, sec. 11].",
Section 458. Lurking house-trespass or,
house-breaking by night after preparation for,
"hurt, assault, or wrongful restraint",
"Whoever commits lurking house-trespass by night, or house-breaking by night, having made",
"preparation for causing hurt to any person or for assaulting any person, or for wrongfully",
"restraining any person, or for putting any person in fear of hurt, or of assault, or of wrongful",
"restraint, shall be punished with imprisonment of either description for a term which may",
"extend to fourteen years, and shall also be liable to fine.",
CLASSIFICATION OF OFFENCE Punishment—Imprisonment for 14 years and fine—,
Cognizable—Non-bailable—Triable by Magistrate of the first class—Non-compoundable.,
Section 459. Grievous hurt caused whilst,
committing lurking house trespass or house-,
breaking,
"Whoever, whilst committing lurking house-trespass or house-breaking, causes grievous hurt",
"to any person or attempts to cause death or grievous hurt to any person, shall be punished",
LLaatteessttLLaawwss..ccoomm,
322,
"with [imprisonment for life], or imprisonment of either description for a term which may extend",
1,
"to ten years, and shall also be liable to fine.",
"CLASSIFICATION OF OFFENCE Punishment—Imprisonment for life, or imprisonment for",
10 years and fine—Cognizable—Non-bailable—Triable by Court of Session—Non-,
"compoundable. ————————- 1. Subs. by Act 26 of 1955, sec. 117 and Sch., for",
“transportation for life” (w.e.f. 1-1-1956).,
Section 460. All persons jointly concerned in,
lurking house-trespass or house-breaking by,
night punishable where death or grievous hurt,
caused by one of them,
"If, at the time of the committing of lurking house-trespass by night or house-breaking by night,",
any person guilty of such offence shall voluntarily cause or attempt to cause death or grievous,
"hurt to any person, every person jointly concerned in committing such lurking house-trespass",
"by night or house-breaking by night, shall be punished with [imprisonment for life], or with",
1,
"imprisonment of either description for a term which may extend to ten years, and shall also be",
liable to fine.,
"CLASSIFICATION OF OFFENCE Punishment—Imprisonment for life, or imprisonment for",
10 years and fine—Cognizable—Non-bailable—Triable by Court of Session—Non-,
"compoundable. ————————- 1. Subs. by Act 26 of 1955, sec. 117 and Sch., for",
“transportation for life” (w.e.f. 1-1-1956).,
Section 461. Dishonestly breaking open,
receptacle containing property,
"Whoever dishonestly or with intent to commit mischief, breaks open or unfastens any closed",
"receptacle which contains or which be believes to contain property, shall be punished with",
"imprisonment of either description for a term which may extend to two years, or with fine, or",
with both.,
LLaatteessttLLaawwss..ccoomm,
323,
"CLASSIFICATION OF OFFENCE Punishment—Imprisonment for 2 years, or fine, or both—",
Cognizable—Bailable—Triable by any Magistrate—Non-compoundable.,
Section 462. Punishment for same offence,
when committed by person entrusted with,
custody,
"Whoever, being entrusted with any closed receptacle which contains or which he believes to",
"contain property, without having authority to open the same, dishonestly, or with intent to",
"commit mischief, breaks open or unfastens that receptacle, shall be punished with",
"imprisonment of either description for a term which may extend to three years, or with fine, or",
with both.,
"CLASSIFICATION OF OFFENCE Punishment—Imprisonment for 3 years, or fine, or both—",
Cognizable—Bailable—Triable by any Magistrate—Non-compoundable.,
463. Forgery,
[Whoever makes any false documents or false electronic record or part of a document or,
1,
"electronic record, with intent to cause damage or injury], to the public or to any person, or to",
"support any claim or title, or to cause any person to part with property, or to enter into any",
"express or implied contract, or with intent to commit fraud or that fraud may be committed,",
"commits forgery. ———————– 1. Subs. by Act 21 of 2000, sec. 91 and Sch. I, for certain",
words (w.e.f. 17-10-2000).,
Section 464. Making a false document,
[A person is said to make a false document or false electronic record—,
1,
"First—Who dishonestly or fradulently— (a) makes, signs, seals or executes a document or",
part of a document; (b) makes or transmits any electronic record or part of any electronic,
record; (c) affixes anyelectronic signature on any electronic record; (d) makes any mark,
3,
"denoting the execution of a document or the authenticity of the electronic signature, with the",
3,
"intention of causing it to be believed that such document or part of document, electronic record",
"or electronic signature was made, signed, sealed, executed, transmitted or affixed by or by",
LLaatteessttLLaawwss..ccoomm,
324,
"the authority of a person by whom or by whose authority he knows that it was not made,",
"signed, sealed, executed or affixed; or",
"Secondly—Who, without lawful authority, dishonestly or fraudulently, by cancellation or",
"otherwise, alters a document or an electronic record in any material part thereof, after it has",
"been made, executed or affixed with electronic signature either by himself or by any other",
3,
"person, whether such person be living or dead at the time of such alteration; or",
"Thirdly—Who dishonestly or fraudulently causes any person to sign, seal, execute or alter a",
document or an electronic record or to affix his electronic signature on any electronic record,
3,
"knowing that such person by reason of unsoundness of mind or intoxication cannot, or that by",
"reason of deception practised upon him, he does not know the contents of the document or",
electronic record or the nature of the alteration.],
"Illustrations (a) A has a letter of credit upon B for rupees 10,000 written by Z. A, in order to",
"defraud B, adds a cipher to the 10,000, and makes the sum 1,00,000 intending that it may be",
believed by B that Z so wrote the letter. A has committed forgery.,
"(b) A, without Z’s authority, affixes Z’s seal to a document purporting to be a conveyance of",
"an estate from Z to A, with the intention of selling the estate to B, and thereby of obtaining",
from B the purchase-money. A has committed forgery.,
"(c) A picks up a cheque on a banker signed by B, payable to bearer, but without any sum",
having been inserted in the cheque. A fraudulently fills up the cheque by inserting the sum of,
ten thousand rupees. A commits forgery.,
"(d) A leaves with B, his agent, a cheque on a banker, signed by A, without inserting the sum",
payable and authorizes B to fill up the cheque by inserting a sum not exceeding ten thousand,
rupees for the purpose of making certain payment. B fraudulently fills up the cheque by,
inserting the sum of twenty thousand rupees. B commits forgery.,
"(e) A draws a bill of exchange on himself in the name of B without B’s authority, intending to",
"discount it as a genuine bill with a banker and intending to take up the bill on its maturity. Here,",
LLaatteessttLLaawwss..ccoomm,
325,
as A draws the bill with intent to deceive the banker by leading him to suppose that he had the,
"security of B, and thereby to discount the bill, A is guilty of forgery.",
(f) Z’s will contains the these words—“I direct that all my remaining property be equally divided,
"between A, B and C.” A dishonestly scratches out B’s name, intending that it may be believed",
that the whole was left to himself and C. A has committed forgery.,
(g) A endorses a Government promissory note and makes it payable to Z or his order by,
writing on the bill the words “Pay to Z or his order” and signing the endorsement. B dishonestly,
"erases the words “Pay to Z or his order”, and thereby converts the special endorsement into",
a blank endorsement. B commits forgery.,
"(h) A sells and conveys an estate to Z. A afterwards, in order to defraud Z of his estate,",
"executes a conveyance of the same estate to B, dated six months earlier than the date of the",
"conveyance to Z, intending it to be believed that he had conveyed the estate to B before he",
conveyed it to Z. A has committed forgery.,
(i) Z dictates his will to A. A intentionally writes down a different legatee from the legatee,
"named by Z, and by representing to Z that he has prepared the will according to his",
"instructions, induces Z to sign the will. A has committed forgery.",
"(j) A writes a letter and signs it with B’s name without B’s authority, certifying that A is a man",
"of good character and in distressed circumstances from unforeseen misfortune, intending by",
"means of such letter to obtain alms from Z and other persons. Here, as A made a false",
document in order to induce Z to part with property. A has committed forgery.,
"(k) A without B’s authority writes a letter and signs it in B’s name certifying to A’s character,",
intending thereby to obtain employment under Z. A has committed forgery in as much as he,
"intended to deceive Z by the forged certificate, and thereby to induce Z to enter into an express",
or implied contract for service. Explanation 1 A man’s signature of his own name may amount,
to forgery.,
LLaatteessttLLaawwss..ccoomm,
326,
"Illustrations (a) A signs his own name to a bill of exchange, intending that it may be believed",
that the bill was drawn by another person of the same name. A has committed forgery.,
"(b) A writes the word “accepted” on a piece of paper and signs it with Z’s name, in order that",
"B may afterwards write on the paper a bill of exchange drawn by B upon Z, and negotiate the",
"bill as though it had been accepted by Z. A is guilty of forgery; and if B, knowing the fact, draws",
"the bill upon the paper pursuant to A’s intention, B is also guilty of forgery.",
(c) A picks up a bill of exchange payable to the order of a different person of the same name.,
"A endorses the bill in his own name, intending to cause it to be believed that it was endorsed",
by the person whose order it was payable; here A has committed forgery.,
"(d) A purchases an estate sold under execution of a decree against B. B, after the seizure of",
"the estate, in collusion with Z, executes a lease of the estate of Z at a nominal rent and for a",
"long period and dates the lease six months prior to the seizure, with intent to defraud A, and",
"to cause it to be believed that the lease was granted before the seizure. B, though he executes",
"the lease in his own name, commits forgery by antedating it.",
"(e) A, a trader, in anticipation of insolvency, lodges effects with B for A’s benefit, and with",
"intent to defraud his creditors; and in order to give a colour to the transaction, writes a",
"promissory note binding himself to pay to B a sum for value received, and antedates the note,",
intending that it may be believed to have been made before. A was on the point of insolvency.,
A has committed forgery under the first head of the definition.,
"Explanation 2 The making of a false document in the name of a fictitious person, intending it",
"to be believed that the document was made by a real person, or in the name of a deceased",
"person, intending it to be believed that the document was made by the person in his lifetime,",
may amount to forgery.,
"Illustration A draws a bill of exchange upon a fictitious person, and fraudulently accepts the",
bill in the name of such fictitious person with intent to negotiate it. A commits,
"forgery. [Explanation 3 For the purposes of this section, the expression “affixing electronic",
2 3,
LLaatteessttLLaawwss..ccoomm,
327,
signature” shall have the meaning assigned to it in clause (d) of sub-section (1) of section 2 of,
"the Information Technology Act, 2000.] ———————————– 1. Subs. by Act 21 of 2000,",
"sec. 91 and Sch. I, for certain words (w.e.f. 17-10-2000). 2. Ins. by Act 21 of 2000, sec. 91 and",
"Sch. I (w.e.f. 17-10-2000). 3. Subs by Act 10 of 2009, sec. 51(e), for “digital signature”.",
Section 465. Punishment for forgery,
Whoever commits forgery shall be punished with imprisonment of either description for a term,
"which may extend to two years, or with fine, or with both.",
"CLASSIFICATION OF OFFENCE Punishment—Imprisonment for 2 years, or fine, or both—",
Non-cognizable—Bailable—Triable by Magistrate of the first class—Non-compoundable.,
Section 466. Forgery of record of court or of,
"public register, etc.",
"[Whoever forges a document or an electronic record], purporting to be a record or proceeding",
1,
"of or in a Court of Justice, or a register of birth, baptism, marriage or burial, or a register kept",
"by a public servant as such, or a certificate or document purporting to be made by a public",
"servant in his official capacity, or an authority to institute or defend a suit, or to take any",
"proceedings therein, or to confess judgment, or a power of attorney, shall be punished with",
"imprisonment of either description for a term which may extend to seven years, and shall also",
"be liable to fine. [Explanation For the purposes of this section, “register” includes any list, data",
1,
or record of any entries maintained in the electronic form as defined in clause (r) of sub-section,
"(1) of section 2 of the Information Technology Act, 2000.]",
CLASSIFICATION OF OFFENCE Punishment—Imprisonment for 7 years and fine—Non-,
cognizable—Non-bailable—Triable by Magistrate of the first class—Non-compoundable. ——,
"——————- 1. Subs. by Act 21 of 2000, sec. 91 and Sch. I, for “Whoever forges a document”",
(w.e.f. 17-10-2000).,
"Section 467. Forgery of valuable security,",
"will, etc.",
LLaatteessttLLaawwss..ccoomm,
328,
"Whoever forges a document which purports to be a valuable security or a will, or an authority",
"to adopt a son, or which purports to give authority to any person to make or transfer any",
"valuable security, or to receive the principal, interest or dividends thereon, or to receive or",
"deliver any money, moveable property, or valuable security, or any document purporting to be",
"an acquittance or receipt acknowledging the payment of money, or an acquittance or receipt",
"for the delivery of any moveable property or valuable security, shall be punished",
"with [imprisonment for life], or with imprisonment of either description for a term which may",
1,
"extend to ten years, and shall also be liable to fine.",
CLASSIFICATION OF OFFENCE,
"Para I Punishment—Imprisonment for life, or imprisonment for 10 years and fine—Non-",
cognizable—Non-bailable—Triable by Magistrate of the first class—Non-compoundable.,
"Para II Punishment—Imprisonment for life, or imprisonment for 10 years and fine—",
Cognizable—Non-bailable—Triable by Magistrate of the first class—Non-compoundable. —,
"—————— 1. Subs. by Act 26 of 1955, sec. 117 and Sch., for “transportation for life” (w.e.f.",
1-1-1956).,
Section 468. Forgery for purpose of cheating,
"Whoever commits forgery, intending that the [document or Electronic Record forged] shall be",
1,
"used for the purpose of cheating, shall be punished with imprisonment of either description for",
"a term which may extend to seven years, and shall also be liable to fine.",
CLASSIFICATION OF OFFENCE Punishment—Imprisonment for 7 years and fine—,
Cognizable—Non-bailable—-Triable by Magistrate of the first class—Non-compoundable. —,
"—————- 1. Subs. by Act 21 of 2000, sec. 91 and Sch. I, for “document forged” (w.e.f. 17-",
10-2000).,
Section 469. Forgery for purpose of harming,
reputation,
"Whoever commits forgery, [intending that the document or Electronic Record forged] shall",
1,
"harm the reputation of any party, or knowing that it is likely to used for that purpose, shall be",
LLaatteessttLLaawwss..ccoomm,
329,
"punished with imprisonment of either description for a term which may extend to three years,",
and shall also be liable to fine.,
CLASSIFICATION OF OFFENCE Punishment—Imprisonment for 3 years and fine—,
Cognizable—Bailable—Triable by Magistrate of the first class—Non-compoundable. ———,
"———— 1. Subs. by Act 21 of 2000, sec. 91 and Sch. I, for “intending that the document",
forged” (w.e.f. 17-10-2000).,
Section 470. Forged document or electronic,
record,
Forged [document or electronic record].—A false [document or electronic record] made wholly,
1 1,
or in part by forgery is designated “a forged [document or electronic record]”. ——————,
1,
"- 1. Subs. by Act 21 of 2000, sec. 91 and Sch. I, for “document” (w.e.f. 17-10-2000).",
Section 471. Using as genuine a forged,
document or electronic record,
Using as genuine a forged [document or electronic record].—Whoever fraudulently or,
1,
dishonestly uses as genuine any [document or electronic record] which he knows or has,
1,
"reason to believe to be a forged[document or electronic record], shall be punished in the same",
1,
manner as if he had forged such [document or electronic record].,
1,
CLASSIFICATION OF OFFENCE Punishment—Punishment for forgery of such,
document—Cognizable—Bailable—Triable by Magistrate of the first class—Non-compound-,
"able. ——————- 1. Subs. by Act 21 of 2000, sec. 91 and Sch. I, for “document” (w.e.f. 17-",
10-2000).,
Section 472. Making or possessing,
"counterfeit seal, etc., with intent to commit",
forgery punishable under section 467,
"Whoever makes or counterfeits any seal, plate or other instrument for making an impression,",
intending that the same shall be used for the purpose of committing any forgery which would,
"be punishable under Section 467 of this Code, or, with such intent, has in his possession any",
LLaatteessttLLaawwss..ccoomm,
330,
"such seal, plate or other instrument, knowing the same to be counterfeit, shall be punished",
"with [imprisonment for life], or with imprisonment of either description for a term which may",
1,
"extend to seven years, and shall also be liable to fine.",
"CLASSIFICATION OF OFFENCE Punishment—Imprisonment for life, or imprisonment for",
7 years and fine—Cognizable—Bailable—Triable by Magistrate of the first class—Non-,
"compoundable. ——————— 1. Subs. by Act 26 of 1955, sec. 117 and Sch., for “transporta-",
tion for life” (w.e.f. 1-1-1956).,
Section 473. Making or possessing,
"counterfeit seal, etc., with intent to commit",
forgery punishable otherwise,
"Whoever makes or counterfeit any seal, plate or other instrument for making an impression,",
intending that the same shall be used for the purpose of committing any forgery which would,
"be punishable under any section of this Chapter other than Section 467, or, with such intent,",
"has in his possession any such seal, plate or other instrument, knowing the same to be",
"counterfeit, shall be punished with imprisonment of either description for a term which may",
"extend to seven years, and shall also be liable to fine.",
CLASSIFICATION OF OFFENCE Punishment—Imprisonment for 7 years and fine—,
Cognizable—Bailable—Triable by Magistrate of the first class—Non-compoundable.,
Section 474. Having possession of document,
"described in Section 466 or 467, knowing it",
to be forged and intending to use it as genuine,
"[Whoever has in his possession any document or electronic record, knowing the same to be",
1,
"forged, and intending that the same shall fraudulently or dishonestly be used as genuine, shall,",
"if the document or electronic record, is one of the description mentioned in section 466 of this",
"Code], be punished with imprisonment of either description for a term which may extend to",
"seven years, and shall also be liable to fine; and if the document is one of the description",
"mentioned in section 467, shall be punished with[imprisonment for life], or with imprisonment",
2,
LLaatteessttLLaawwss..ccoomm,
331,
"of either description, for a term which may extend to seven years, and shall also be liable to",
fine.,
CLASSIFICATION OF OFFENCE Para I Punishment—Imprisonment for 7 years and fine—,
Cognizable—Bailable—Triable by Magistrate of the first class—Non-compoundable. Para,
"II Punishment—Imprisonment for life, or imprisonment for 7 years and fine—Non-",
cognizable—Bailable—Triable by Magistrate of the first class—Non-compoundable. ————,
"———— 1. Subs. by Act 21 of 2000, sec. 91 and Sch. I, for certain words (w.e.f. 17-10-2000). 2.",
"Subs. by Act 26 of 1955, sec. 117 and Sch., for “transportation for life” (w.e.f. 1-1-1956).",
Section 475. Counterfeiting device or mark,
used for authenticating documents described,
"in Section 467, or possessing counterfeit",
marked material,
"Whoever counterfeits upon, or in the substance of, any material, any device or mark used for",
"the purpose of authenticating any document described in Section 467 of this Code, intending",
that such device or mark shall be used for the purpose of giving the appearance of authenticity,
"to any document then forged or thereafter to be forged on such material, or who, with such",
"intent, has in his possession any material upon or in the substance of which any such device",
"or mark has been counterfeited, shall be punished with [imprisonment for life], or with",
1,
"imprisonment of either description for a term which may extend to seven years, and shall also",
be liable to fine.,
"CLASSIFICATION OF OFFENCE Punishment—Imprisonment for life, or imprisonment for",
7 years and fine—Non-cognizable—Bailable—Triable by Magistrate of the first class—Non-,
"compoundable. —————————– 1. Subs. by Act 26 of 1955, sec. 117 and Sch., for",
“transportation for life” (w.e.f. 1-1-1956).,
Section 476. Counterfeiting device or mark,
used for authenticating documents other than,
LLaatteessttLLaawwss..ccoomm,
332,
"those described in section 467, or possessing",
counterfeit marked material,
"Whoever counterfeits upon, or in the substance of, any material, any device or mark used for",
the purpose of authenticating [any document or electronic record] other than the documents,
1,
"described in section 467 of this Code, intending that such device or mark shall be used for the",
purpose of giving the appearance of authenticity to any document then forged or thereafter to,
"be forged on such material, or who, with such intent, has in his possession any material upon",
"or in the substance of which any such device or mark has been counterfeited, shall be",
"punished with imprisonment of either description for a term which may extend to seven years,",
and shall also be liable to fine.,
CLASSIFICATION OF OFFENCE Punishment—Imprisonment for 7 years and fine—Non-,
cognizable—Non-bailable—Triable by Magistrate of the first class—Non-compoundable. ——,
"——————- 1. Subs. by Act 21 of 2000, sec. 91 and Sch. I, for “any document” (w.e.f. 17-",
10-2000).,
"Section 477. Fraudulent cancellation,",
"destruction, etc., of will, authority to adopt, or",
valuable security,
"Whoever fraudulently or dishonestly, or with intent to cause damage or injury to the public or",
"to any person, cancels, destroys or defaces, or attempts to cancel, destroy or deface, or",
"secretes or attempts to secrete any document which is or purports to be a will, or an authority",
"to adopt a son, or any valuable security, or commits mischief in respect of such document,",
"shall be punished with [imprisonment for life], or with imprisonment of either description for a",
1,
"term which may extend to seven years, and shall also be liable to fine.",
"CLASSIFICATION OF OFFENCE Punishment—Imprisonment for life, or imprisonment for",
7 years and fine—Non-cognizable—Non-bailable—Triable by Magistrate of the first class—,
"Non-compoundable. —————————- 1. Subs. by Act 26 of 1955, sec. 117 and Sch., for",
“transportation for life” (w.e.f. 1-1-1956).,
LLaatteessttLLaawwss..ccoomm,
333,
Section 477A. Falsification of accounts,
"[477A. Falsification of accounts.—Whoever, being a clerk, officer or servant, or employed or",
1,
"acting in the capacity of a clerk, officer or servant, wilfully, and with intent to defraud, destroys,",
"alters, mutilates or falsifies any [book, electronic record, paper, writing], valuable security or",
2,
"account which belongs to or is in the possession of his employer, or has been received by him",
"for or on behalf of his employer, or wilfully, and with intent to defraud, makes or abets the",
"making of any false entry in, or omits or alters or abets the omission or alteration of any",
"material particular from or in, any such [book, electronic record, paper, writing], valuable",
2,
"security or account, shall be punished with imprisonment of either description for a term which",
"may extend to seven years, or with fine, or with both. Explanation It shall be sufficient in any",
charge under this section to allege a general intent to defraud without naming any particular,
person intended to be defrauded or specifying any particular sum of money intended to be the,
"subject of the fraud, or any particular day on which the offence was committed.]",
"CLASSIFICATION OF OFFENCE Punishment—Imprisonment for 7 years, or fine, or both—",
Non-cognizable—Bailable—Triable by Magistrate of the first class—Non-compoundable. ——,
"—————- 1. Added by Act 3 of 1895, sec. 4. 2. Subs. by Act 21 of 2000, sec. 91 and Sch. I,",
"for “book, paper, writing” (w.e.f. 17-10-2000).",
Section 478. Trade marks,
"[Rep. by the Trade and Merchandise Marks Act, 1958 (43 of 1958, sec. 135 and Sch. (w.e.f.",
25-11-1959).],
Section 479. Property mark,
A mark used for denoting that moveable property belongs to a particular person is called a,
property mark.,
Section 480. Using a false trade mark,
"[Rep. by the Trade and Merchandise Marks Act, 1958 (43 of 1958), s. 135 and Sch., (w.e.f.",
25-11-1959).],
LLaatteessttLLaawwss..ccoomm,
334,
Section 481. Using a false property mark,
"Whoever marks any moveable property or goods or any case, package or other receptacle",
"containing moveable property or goods, or uses any case, package or other receptacle having",
"any mark thereon, in a manner reasonably calculated to cause it to be believed that the",
"property or goods so marked, or any property or goods contained in any such receptacle so",
"marked, belong to a person to whom they do not belong, is said to use a false property mark.",
Section 482. Punishment for using a false,
property mark,
"Whoever uses [* * *] any false property mark shall, unless he proves that he acted without",
1,
"intent to defraud, be punished with imprisonment of either description for a term which may",
"extend to one year, or with fine, or with both",
"CLASSIFICATION OF OFFENCE Punishment—Imprisonment for 1 year, or fine, or both—",
Non-cognizable—Bailable—Triable by any Magistrate—Compoundable by the person to,
whom loss or injury is caused by such use with the permission of the court. ——————– 1.,
"The words “any false trade mark or” omitted by Act 43 of 1958, sec. 135 and Sch. (w.e.f. 25-",
11-1959).,
Section 483. Counterfeiting a property mark,
used by another,
Whoever counterfeits any [* * *] property mark used by any other person shall be punished,
1,
"with imprisonment of either description for a term which may extend to two years, or with fine,",
or with both,
"CLASSIFICATION OF OFFENCE Punishment—Imprisonment for 2 years, or fine, or both—",
Non-cognizable—Bailable—Triable by any Magistrate—Compoundable by the person whose,
trade or property mark is counterfeited with the permission of the court. ———————- 1.,
"The words “trade mark or” omitted by Act 43 of 1958, sec. 135 and Sch. (w.e.f. 25-11-1959).",
LLaatteessttLLaawwss..ccoomm,
335,
Section 484. Counterfeiting a mark used by a,
public servant,
[484. Counterfeiting a mark used by a public servant.—Whoever counterfeits any property,
1,
"mark used by a public servant, or any mark used by a public servant to denote that any",
"property has been manufactured by a particular person or at a particular time or place, or that",
"the property is of a particular quality or has passed through a particular office, or that it is",
"entitled to any exemption, or uses as genuine any such mark knowing the same to be",
"counterfeit, shall be punished with imprisonment of either description for a term which may",
"extend to three years, and shall also be liable to fine.]",
CLASSIFICATION OF OFFENCE Punishment—Imprisonment for 3 years and fine—Non-,
cognizable—Bailable—Triable by Magistrate of the first class—Non-compoundable. ————,
"——— 1. Subs. by Act 4 of 1889, sec. 3, for the original section 484.",
Section 485. Making or possession of any,
instrument for counterfeiting a property mark,
[485. Making or possession of any instrument for counterfeiting a property mark.—Whoever,
1,
"makes or has in his possession any die, plate or other instrument for the purpose of",
"counterfeiting a property mark, or has in his possession a property mark for the purpose of",
"denoting that any goods belong to a person to whom they do not belong, shall be punished",
"with imprisonment of either description for a term which may extend to three years or with fine,",
or with both.],
"CLASSIFICATION OF OFFENCE Punishment—Imprisonment for 3 years, or fine, or both—",
Non-cognizable—Bailable—Triable by Magistrate of the first class—Non-compoundable. ——,
"——————– 1. Subs. by Act 43 of 1958, sec. 135 and Sch., for the original section 485 (w.e.f.",
25-11-1959).,
Section 486. Selling goods marked with a,
counterfeit property mark,
LLaatteessttLLaawwss..ccoomm,
336,
"[486. Selling goods marked with a counterfeit property mark.—[Whoever sells, or exposes,",
1 2,
"or has in possession for sale, any goods or things with a counterfeit property mark] affixed to",
"or impressed upon the same or to or upon any case, package or other receptacle in which",
"such goods are contained, shall, unless he proves— (a) that, having taken all reasonable",
"precautions against committing an offence against this section, he had at the time of the",
"commission of the alleged offence no reason to suspect the genuineness of the mark, and",
"(b) that, on demand made by or on behalf of the prosecutor, he gave all the information in his",
"power with respect to the persons from whom he obtained such goods or things, or",
"(c) that otherwise he had acted innocently, be punished with imprisonment of either description",
"for a term which may extend to one year, or with fine, or with both.]",
"CLASSIFICATION OF OFFENCE Punishment—Imprisonment for 1 year, or fine, or both—",
Non-cognizable—Bailable—Triable by any Magistrate—Compoundable by the person whose,
trade or property mark is counterfeited with the permission of the court. ———————— 1.,
"Subs. by Act 4 of 1889, sec. 3, for the original section 486. 2. Subs. by Act 43 of 1958, sec. 135",
"and Sch., for certain words (w.e.f. 25-11-1959).",
Section 487. Making a false mark upon any,
receptacle containing goods,
[487. Making a false mark upon any receptacle containing goods.—Whoever makes any false,
1,
"mark upon any case, package or other receptacle containing goods, in a manner reasonably",
calculated to cause any public servant or any other person to believe that such receptacle,
contains goods which it does not contain or that it does not contain goods which it does,
"contain, or that the goods contained in such receptacle are of a nature or quality different from",
"the real nature or quality thereof, shall, unless he proves that he acted without intent to",
"defraud, be punished with imprisonment of either description for a term which may extend to",
"three years, or with fine, or with both.]",
LLaatteessttLLaawwss..ccoomm,
337,
"CLASSIFICATION OF OFFENCE Punishment—Imprisonment for 3 years, or fine, or both—",
Non-cognizable—Bailable—Triable by any Magistrate—Non-compoundable. ———————,
"——- 1. Subs. by Act 4 of 1889, sec. 3, for the original section 487.",
Section 488. Punishment for making use of,
any such false mark,
[488. Punishment for making use of any such false mark.—Whoever makes use of any such,
1,
"false mark in any manner prohibited by the last foregoing section shall, unless he proves that",
"he acted without intent to defraud, be punished as if he had committed an offence against that",
section.],
"CLASSIFICATION OF OFFENCE Punishment—Imprisonment for 3 years, or fine, or both—",
Non-cognizable—Bailable—Triable by any Magistrate—Non-compoundable. ———————,
"- 1. Subs. by Act 4 of 1889, sec. 3, for the original section 488.",
Section 489. Tampering with property mark,
with intent to cause injury,
"[489. Tampering with property mark with intent to cause injury.—Whoever removes, destroys,",
1,
"defaces or adds to any property mark, intending or knowing it to be likely that he may thereby",
"cause injury to any person, shall be punished with imprisonment of either description for a",
"term which may extend to one year, or with fine, or with both.]",
"CLASSIFICATION OF OFFENCE Punishment—Imprisonment for 1 year, or fine, or both—",
Non-cognizable—Bailable—Triable by any Magistrate—Non-compoundable. ———————,
"—– 1. Subs. by Act 4 of 1889, sec. 3, for the original section 489.",
Section 489A. Counterfeiting currency-notes,
or bank-notes,
"[489A. Counterfeiting currency-notes or bank-notes.—Whoever counter-feits, or knowingly",
1,
"performs any part of the process of counterfeiting, any currency-note or bank-note, shall be",
"punished with [imprisonment for life], or with imprisonment of either description for a term",
2,
"which may extend to ten years, and shall also be liable to fine. Explanation For the purposes",
LLaatteessttLLaawwss..ccoomm,
338,
"of this section and of sections 489B, [489C, 489D and 489E], the expression “bank-note”",
3,
means a promissory note or engagement for the payment of money to bearer on demand,
"issued by any person carrying on the business of banking in any part of the world, or issued",
"by or under the authority of any State or Sovereign Power, and intended to be used as equiva-",
"lent to, or as a substitute for money.]",
"CLASSIFICATION OF OFFENCE Punishment—Imprisonment for life, or imprisonment for",
10 years and fine—Cognizable—Non-bailable—Triable by Court of Session—Non-,
"compoundable. ————————– 1. Added by Act 12 of 1899, sec. 2. 2. Subs. by Act 26 of",
"1955, sec. 117 and Sch., for “transportation for life” (w.e.f. 1-1-1956). 3. Subs. by Act 35 of",
"1950, sec. 3 and Sch. II, for “489C and 489D”.",
"Section 489B. Using as genuine, forged or",
counterfeit currency-notes or bank-notes,
"[489B. Using as genuine, forged or counterfeit currency-notes or bank-notes.—Whoever sells",
1,
"to, or buys or receives from, any other person, or otherwise traffics in or uses as genuine, any",
"forged or counterfeit currency-note or bank-note, knowing or having reason to believe the",
"same to be forged or counterfeit, shall be punished with [imprisonment for life], or with impris-",
2,
"onment of either description for a term which may extend to ten years, and shall also be liable",
to fine.],
"CLASSIFICATION OF OFFENCE Punishment—Imprisonment for life, or imprisonment for",
10 years and fine—Cognizable—Non-bailable—Triable by Court of Session—Non-,
"compoundable. ————————- 1. Added by Act 12 of 1899, sec. 2. 2. Subs. by Act 26 of",
"1955, sec. 117 and Sch., for “transportation for life” (w.e.f. 1-1-1956).",
Section 489C. Possession of forged or,
counterfeit currency-notes or bank-notes,
[489C. Possession of forged or counterfeit currency-notes or bank-notes.—Whoever has in,
1,
"his possession any forged or counterfeit currency-note or bank-note, knowing or having",
reason to believe the same to be forged or counterfeit and intending to use the same as,
LLaatteessttLLaawwss..ccoomm,
339,
"genuine or that it may be used as genuine, shall be punished with imprisonment of either",
"description for a term which may extend to seven years, or with fine, or with",
"both.] CLASSIFICATION OF OFFENCE Punishment—Imprisonment for 7 years, or fine, or",
both—Cognizable—Bailable—Triable by Court of Session—Non-compoundable. —————,
"————- 1. Added by Act 12 of 1899, sec. 2.",
Section 489D. Making or possessing,
instruments or materials for forgoing or,
counterfeiting currency-notes or bank-notes,
[489D. Making or possessing instruments or materials for forging or counterfeiting currency-,
1,
"notes or bank-notes.—Whoever makes, or performs, any part of the process of making, or",
"buys or sells or disposes of, or has in his possession, any machinery, instrument or material",
"for the purpose of being used, or knowing or having reason to believe that it is intended to be",
"used, for forging or counterfeiting any currency-note or bank-note, shall be punished",
"with [imprisonment for life], or with imprisonment of either description for a term which may",
2,
"extend to ten years, and shall also be liable to fine.]",
"CLASSIFICATION OF OFFENCE Punishment—Imprisonment for life, or imprisonment for",
10 years and fine—Cognizable—Non-bailable—Triable by Court of Session—Non-,
"compoundable. ———————– 1. Added by Act 12 of 1899, sec. 2. 2. Subs. by Act 26 of",
"1955, sec. 117 and Sch., for “transportation for life” (w.e.f. 1-1-1956).",
Section 489E. Making or using documents,
resembling currency-notes or bank-notes,
[489E. Making or using documents resembling currency-notes or bank-notes.—(1) Whoever,
1,
"makes, or causes to be made, or uses for any purpose whatsoever, or delivers to any person,",
"any document purporting to be, or in any way resembling, or so nearly resembling as to be",
"calculated to deceive, any currency-note or bank-note shall be punished with fine which may",
extend to one hundred rupees.,
LLaatteessttLLaawwss..ccoomm,
340,
"(2) If any person, whose name appears on a document the making of which is an offence",
"under sub-section (1), refuses, without lawful excuse, to disclose to a police-officer on being",
"so required the name and address of the person by whom it was printed or otherwise made,",
he shall be punished with fine which may extend to two hundred rupees.,
(3) Where the name of any person appears on any document in respect of which any person,
is charged with an offence under sub-section (1) or on any other document used or distributed,
"in connection with that document it may, until the contrary is proved, be presumed that person",
caused the document to be made.],
LASSIFICATION OF OFFENCE Punishment—Fine of 100 rupees—Non-Cognizable—,
Bailable—Triable by any Magistrate—Non-compoundable. ————————– 1. Ins. by Act,
"6 of 1943, sec. 2.",
Section 490. Breach of contract of service,
during voyage or journey,
"[Rep. by the Workmen’s Breach of Contract (Repealing) Act, 1925 (3 of 1925), sec. 2 and",
Sch.],
Section 491. Breach of contract to attend on,
and supply wants of helpless person,
"Whoever, being bound by a lawful contract to attend on or to supply the wants of any person",
"who, by reason of youth, or of unsoundness of mind, or of a disease or bodily weakness, is",
"helpless or incapable of providing for his own safety or of supplying his own wants, voluntarily",
"omits so to do, shall be punished with imprisonment of either description for a term which may",
"extend to three months, or with fine which may extend to two hundred rupees, or with both.",
"CLASSIFICATION OF OFFENCE Punishment—Imprisonment for 3 months, or fine of 200",
"rupees, or both—Non-cognizable—Bailable—Triable by any Magistrate—Compoundable by",
the person with whom the offender has contracted.,
LLaatteessttLLaawwss..ccoomm,
341,
Section 492. Breach of contract to serve at,
distant place to which servant is conveyed at,
master’s expense,
"[Rep. by the workmen’s Breach of Contract (Repealing) Act, 1925 (3 of 1925), sec. 2 and Sch.]",
Section 493. Cohabitation caused by a man,
deceitfully inducing a belief of lawful,
marriage,
Every man who by deceit causes any woman who is not lawfully married to him to believe that,
"she is lawfully married to him and to cohabit or have sexual intercourse with him in that belief,",
shall be punished with imprisonment of either description for a term which may extend to ten,
"years, and shall also be liable to fine.",
CLASSIFICATION OF OFFENCE Punishment—Imprisonment for 10 years and fine—Non-,
cognizable—Non-bailable—Triable by Magistrate of the first class—Non-compoundable.,
Section 494. Marrying again during lifetime,
of husband or wife,
"Whoever, having a husband or wife living, marries in any case in which such marriage is void",
"by reason of its taking place during the life of such husband or wife, shall be punished with",
"imprisonment of either description for a term which may extend to seven years, and shall also",
be liable to fine.,
Exception.—This section does not extend to any person whose marriage with such husband,
"or wife has been declared void by a Court of competent jurisdiction, nor to any person who",
"contracts a marriage during the life of a former husband or wife, if such husband or wife, at",
"the time of the subsequent marriage, shall have been continually absent from such person for",
"the space of seven years, and shall not have been heard of by such person as being alive",
"within that time provided the person contracting such subsequent marriage shall, before such",
LLaatteessttLLaawwss..ccoomm,
342,
"marriage takes place, inform the person with whom such marriage is contracted of the real",
state of facts so far as the same are within his or her knowledge.,
CLASSIFICATION OF OFFENCE Punishment—Imprisonment for 7 years and fine—Non-,
cognizable—Bailable—Triable by Magistrate of the first class—Compoundable by the,
husband or wife of the person so marrying with the permission of the court.,
State Amendment Andhra Pradesh Punishment—Imprisonment for 7 years and fine—,
Cognizable—Non-bailable—Triable by Magistrate of the first class—Non-compoundable.,
"[Vide Andhra Pradesh Act 3 of 1992, sec. 2 (w.e.f. 15-2-1992)].",
Section 495. Same offence with concealment,
of former marriage from person with whom,
subsequent marriage is contracted,
Whoever commits the offence defined in the last preceding section having concealed from the,
"person with whom the subsequent marriage is contracted, the fact of the former marriage,",
shall be punished with imprisonment of either description for a term which may extend to ten,
"years, and shall also be liable to fine.",
CLASSIFICATION OF OFFENCE Punishment—Imprisonment for 10 years and fine—Non-,
cognizable—Bailable—Triable by Magistrate of the first class—Non-compoundable.,
STATE AMENDMENT Andhra Pradesh Punishment—Imprisonment for 10 years and fine—,
Cognizable—Non-bailable—Triable by Magistrate of the first class—Non-compoundable.,
"[Vide Andhra Pradesh Act 3 of 1992, sec. 2 (w.e.f. 15-2-1992)]",
Section 496. Marriage ceremony fraudulently,
gone through without lawful marriage,
"Whoever, dishonestly or with a fraudulent intention, goes through the ceremony of being",
"married, knowing that he is not thereby lawfully married, shall be punished with imprisonment",
"of either description for a term which may extend to seven years, and shall also be liable to",
fine.,
LLaatteessttLLaawwss..ccoomm,
343,
CLASSIFICATION OF OFFENCE Punishment—Imprisonment for 7 years and fine—Non-,
cognizable—Bailable—Triable by Magistrate of the first class—Non-compoundable.,
State Amendment Andhra Pradesh Punishment—Imprisonment for 7 years and fine—,
Cognizable—Non-bailable—Triable by Magistrate of the first class—Non-compoundable.,
"[Vide Andhra Pradesh Act 3 of 1992, sec. 2 (w.e.f. 15-2-1992)].",
Section 497. Adultery,
Whoever has sexual intercourse with a person who is and whom he knows or has reason to,
"believe to be the wife of another man, without the consent or connivance of that man, such",
"sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery,",
and shall be punished with imprisonment of either description for a term which may extend to,
"five years, or with fine, or with both. In such case the wife shall not be punishable as an abettor.",
"CLASSIFICATION OF OFFENCE Punishment—Imprisonment for 5 years, or fine, or both—",
Non-cognizable—Bailable—Triable by Magistrate of the first class—Non-compoundable.,
"STATE AMENDMENT Andhra Pradesh Punishment—Imprisonment for 5 years, or fine, or",
both—Cognizable—Bailable—Triable by Magistrate of the first class—Non-compoundable.,
"[Vide Andhra Pradesh Act 3 of 1992, sec. 2 (w.e.f. 15-2-1992)].",
Section 498. Enticing or taking away or,
detaining with criminal intent a married,
woman,
Whoever takes or entices away any woman who is and whom he knows or has reason to,
"believe to be the wife of any other man, from that man, or from any person having the care of",
"her on behalf of that man, with intent that she may have illicit intercourse with any person, or",
"conceals or detains with that intent any such woman, shall be punished with imprisonment of",
"either description for a term which may extend to two years, or with fine, or with both.",
"CLASSIFICATION OF OFFENCE Punishment—Imprisonment for 2 years, or fine, or both—",
Non-cognizable—Bailable—Triable by any Magistrate—Compoundable by the person with,
whom the offender has contracted.,
LLaatteessttLLaawwss..ccoomm,
344,
Section 498A. Husband or relative of husband of a woman subjecting her to cruelty [498A.,
1,
"Husband or relative of husband of a woman subjecting her to cruelty.—Whoever, being the",
"husband or the relative of the husband of a woman, subjects such woman to cruelty shall be",
punished with imprisonment for a term which may extend to three years and shall also be,
"liable to fine. Explanation For the purpose of this section, “cruelty” means—",
(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit,
"suicide or to cause grave injury or danger to life, limb or health (whether mental or physical)",
of the woman; or,
(b) harassment of the woman where such harassment is with a view to coercing her or any,
person related to her to meet any unlawful demand for any property or valuable security or is,
on account of failure by her or any person related to her to meet such demand.],
CLASSIFICATION OF OFFENCE Punishment—Imprisonment for 3 years and,
fine-Cognizable if information relating to the commission of the offence is given to an officer,
in charge of a police station by the person aggrieved by the offence or by any person related,
"to her by blood, marriage or adoption or if there is no such relative, by any public servant",
belonging to such class or category as may be notified by the State Government in this,
behalf—Non-bailable—Triable by Magistrate of the first class—Non-compoundable.,
Comments Demand for Dowry and Ill-treatment (i) The wife petitioned for divorce on the,
ground of persistent demand made on her by her husband and in-laws. The High Court took,
the view that there was nothing wrong in these demands as money was needed by the,
husband for his personal use and in such a case wife should extend help. Reversing the,
"judgment, the Supreme Court held that demand for dowry is prohibited under the law. That",
"itself was bad enough; Shobha Rani v. Madhukar, AIR 1988 SC 121; see also Prakash Kaur",
"v. Harijinderpal Singh, AIR 1999 Raj 46. (",
ii) The husband and his parents were greedy people. Their desire for dowry was insatiable.,
"They went on demanding dowry even after two years of marriage, and since the parents of",
"wife could not meet these, they started ill-treating her with a view to coercing her parens to",
LLaatteessttLLaawwss..ccoomm,
345,
"give dowry. The Delhi High Court held that this amounted to cruelty; Adarsh Parkash v. Sarita,",
AIR 1987 Del 203.,
"Demand for money Demand for money after four years of marriage for a specific purpose, no",
where related to marriage demand but causing of harassment to deceased wife so much so,
that she was bound to end her life is sufficient for conviction under section 498A; State of,
"Punjab v. Daljit Singh, 1999 Cr LJ 2723 (P&H). Drunkenness No doubt drinking is a constituent",
"of culture all over the world, and is almost a cult in certain societies. Yet, even here as",
elsewhere a habit of excessive drinking is a vice and cannot be considered a reasonable wear,
and tear of married life. No reasonable person marries to bargain to endure habitual,
"drunkenness, a disgusting conduct. And yet it is not an independent ground of any matrimonial",
"relief in India. But it may constitute treatment with cruelty, if indulged in by a spouse and",
"continued, in spite of remonstrances, by the other. It may cause great anguish and distress to",
the wife who never suspected what she was bargaining for and may sooner or later find living,
"together not only miserable but unbearable. If it was so, she may leave him and may, apart",
"from cruelty, even complain of constructive desertion; Rita v. Brij Kishore, AIR 1984 Del 291.",
Object Section 498A was added with a view to punishing husband and his relatives who,
harass or torture the wife to coerce her or her relatives to satisfy unlawful demands of dowry.,
The hyper-technical view would be counter productive and would act against interests of,
women and against the object for which the provision was added. There is every likelihood,
that non-exercise of inherent power to quash the proceedings to meet the ends of justice would,
prevent woman from settling earlier. That is not the object of Chapter XXA; B.S. Joshi v. State,
"of Haryana,AIR 2003 SC 1386.",
Section 498A vis-a-vis section 113 of Evidence Act Section 498A of the Indian Penal Code or,
section 113A of the Indian Evidence Act has not introduced invidious classification qua the,
treatment of a married woman by her husband or relatives of her husband vis-a-vis the other,
"offenders. On the other hand, such women form a class apart whom from those who are",
"married more than seven years earlier to the commission of such offence, because, with the",
"passage of time after marriage and birth of children, there are remote chances of treating a",
LLaatteessttLLaawwss..ccoomm,
346,
"married woman with cruelty by her husband or his relatives. Thus, the classification is",
"reasonable and has close nexus with the object sought to be achieved, i.e., eradication of the",
evil of dowry in the Indian social set-up and to ensure that the married women live with dignity,
"at their matrimonial homes; Krishan Lal v. Union of India, 1994 Cr LJ 3472.",
Unhappiness between husband and wife Where the prosecution relied only on incident of,
"unhappiness of deceased with her husband and the allegation was only in form of suggestion,",
"it does not establish criminal offence under either or both of the charges, hence conviction",
"under section 498A is improper; State v. K. Sridhar, 2000 Cr LJ 328 (Kant). Wilful Conduct",
"The allegations against the husband were that he abused and beat his wife, forced her to have",
"a common kitchen with a harijan family, accused her of adultery and of carrying in her womb",
"someone else’s child, pressurizing her to agree for an abortion, and such other acts. This",
"amounted to a wilful conduct of cruelty towards wife; Rishi Kumar v. State of Haryana, Criminal",
"Appeal No. 335-B of 1985. ————————- 1. Ins. by Act 46 of 1983, sec. 2 (w.e.f. 25-12-",
1983).,
Section 499. Defamation,
"Whoever, by words either spoken or intended to be read, or by signs or by visible",
"representations, makes or publishes any imputation concerning any person intending to harm,",
"or knowing or having reason to believe that such imputation will harm, the reputation of such",
"person, is said, except in the cases hereinafter expected, to defame that person.",
"Explanation 1 It may amount to defamation to impute anything to a deceased person, if the",
"imputation would harm the reputation of that person if living, and is intended to be hurtful to",
the feelings of his family or other near relatives.,
Explanation 2 It may amount to defamation to make an imputation concerning a company or,
an association or collection of persons as such.,
"Explanation 3 An imputation in the form of an alternative or expressed ironically, may amount",
to defamation.,
"Explanation 4 No imputation is said to harm a person’s reputation, unless that imputation",
"directly or indirectly, in the estimation of others, lowers the moral or intellectual character of",
LLaatteessttLLaawwss..ccoomm,
347,
"that person, or lowers the character of that person in respect of his caste or of his calling, or",
"lowers the credit of that person, or causes it to be believed that the body of that person is in a",
"loathsome state, or in a state generally considered as disgraceful.",
Illustrations (a) A says—“Z is an honest man; he never stole B’s watch”; intending to cause it,
"to be believed that Z did steal B’s watch. This is defamation, unless it fall within one of the",
exceptions.,
"(b) A is asked who stole B’s watch. A points to Z, intending to cause it to be believed that Z",
stole B’s watch. This is defamation unless it fall within one of the exceptions.,
"(c) A draws a picture of Z running away with B’s watch, intending it to be believed that Z stole",
"B’s watch. This is defamation, unless it fall within one of the exceptions.",
First Exception.—Imputation of truth which public good requires to be made or published.—,
"It is not defamation to impute anything which is true concerning any person, if it be for the",
public good that the imputation should be made or published. Whether or not it is for the public,
good is a question of fact.,
Second Exception.—Public conduct of public servants.—It is not defamation to express in a,
good faith any opinion whatever respecting the conduct of a public servant in the discharge of,
"his public functions, or respecting his character, so far as his character appears in that",
"conduct, and no further.",
Third Exception.—Conduct of any person touching any public question.—It is not defamation,
to express in good faith any opinion whatever respecting the conduct of any person touching,
"any public question, and respecting his character, so far as his character appears in that",
"conduct, and no further.",
Illustration It is not defamation in A to express in good faith any opinion whatever respecting,
"Z’s conduct in petitioning Government on a public question, in signing a requisition for a",
"meeting on a public question, in presiding or attending a such meeting, in forming or joining",
"any society which invites the public support, in voting or canvassing for a particular candidate",
for any situation in the efficient discharges of the duties of which the public is interested.,
LLaatteessttLLaawwss..ccoomm,
348,
Fourth Exception.—Publication of reports of proceedings of Courts.—It is not defamation to,
"publish substantially true report of the proceedings of a Court of Justice, or of the result of any",
such proceedings. Explanation A Justice of the Peace or other officer holding an inquiry in,
"open Court preliminary to a trial in a Court of Justice, is a Court within the meaning of the",
above section.,
Fifth Exception.—Merits of case decided in Court or conduct of witnesses and others,
concerned.—It is not defamation to express in good faith any opinion whatever respecting the,
"merits of any case, civil or criminal, which has been decided by a Court of Justice, or",
"respecting the conduct of any person as a party, witness or agent, in any such case, or",
"respecting the character of such person, as far as his character appears in that conduct, and",
no further.,
Illustrations (a) A says—“I think Z’s evidence on that trial is so contradictory that he must be,
"stupid or dishonest”. A is within this exception if he says this is in good faith, in as much as",
the opinion which he expresses respects Z’s character as it appears in Z’s conduct as a,
"witness, and no further.",
(b) But if A says—“I do not believe what Z asserted at that trial because I know him to be a,
"man without veracity”; A is not within this exception, in as much as the opinion which he",
"express of Z’s character, is an opinion not founded on Z’s conduct as a witness.",
Sixth Exception.—Merits of public performance.—It is not defamation to express in good,
faith any opinion respecting the merits of any performance which its author has submitted to,
"the judgment of the public, or respecting the character of the author so far as his character",
"appears in such performance, and no further. Explanation A performance may be submitted",
to the judgment of the public expressly or by acts on the part of the author which imply such,
submission to the judgment of the public.,
"Illustrations (a) A person who publishes a book, submits that book to the judgment of the",
public.,
"(b) A person who makes a speech in public, submits that speech to the judgment of the public.",
(,
LLaatteessttLLaawwss..ccoomm,
349,
"c) An actor or singer who appears on a public stage, submits his acting or signing in the",
judgment of the public.,
(d) A says of a book published by Z—“Z’s book is foolish; Z must be a weak man. Z’s book is,
"indecent; Z must be a man of impure mind”. A is within the exception, if he says this in good",
"faith, in as much as the opinion which he expresses of Z respects Z’s character only so far as",
"it appears in Z’s book, and no further.",
"(e) But if A says—“I am not surprised that Z’s book is foolish and indecent, for he is a weak",
"man and a libertine”. A is not within this exception, in as much as the opinion which he",
expresses of Z’s character is an opinion not founded on Z’s book.,
Seventh Exception.—Censure passed in good faith by person having lawful authority over,
"another.—It is not defamation in a person having over another any authority, either conferred",
"by law or arising out of a lawful contract made with that other, to pass in good faith any censure",
on the conduct of that other in matters to which such lawful authority relates.,
"Illustration A Judge censuring in good faith the conduct of a witness, or of an officer of the",
Court; a head of a department censuring in good faith those who are under his orders; a parent,
"censuring in good faith a child in the presence of other children; a school-master, whose",
"authority is derived from a parent, censuring in good faith a pupil in the presence of other",
pupils; a master censuring a servant in good faith for remissness in service; a banker censur-,
ing in good faith the cashier of his bank for the conduct of such cashier as such cashier—are,
within this exception.,
Eighth Exception.—Accusation preferred in good faith to authorised person.—It is not,
defamation to prefer in good faith an accusation against any person to any of those who have,
lawful authority over that person with respect to the subject-matter of accusation.,
Illustration If A in good faith accuse Z before a Magistrate; if A in good faith complains of the,
"conduct of Z, a servant, to Z’s master; if A in good faith complains of the conduct of Z, and",
"child, to Z’s father—A is within this exception.",
LLaatteessttLLaawwss..ccoomm,
350,
Ninth Exception.—Imputation made in good faith by person for protection of his or other’s,
interests.—It is not defamation to make an imputation on the character of another provided,
that the imputation be made in good faith for the protection of the interests of the person,
"making it, or of any other person, or for the public good.",
"Illustrations (a) A, a shopkeeper, says to B, who manages his business—“Sell nothing to Z",
"unless he pays you ready money, for I have no opinion of his honesty”. A is within the",
"exception, if he has made this imputation on Z in good faith for the protection of his own",
interests.,
"(b) A, a Magistrate, in making a report of his own superior officer, casts an imputation on the",
"character of Z. Here, if the imputation is made in good faith, and for the public good, A is within",
the exception.,
Tenth Exception.—Caution intended for good of person to whom conveyed or for public,
"good.—It is not defamation to convey a caution, in good faith, to one person against another,",
"provided that such caution be intended for the good of the person to whom it is conveyed, or",
"of some person in whom that person is interested, or for the public good.",
COMMENTS Imputation without publication In section 499 the words “makes or publishes,
any imputation” should be interpreted as words supplementing to each other. A maker of,
imputation without publication is not liable to be punished under that section; Bilal Ahmed,
"Kaloo v. State of Andhra Pradesh, (1997) 7 Supreme Today 127.",
Section 500. Punishment for defamation,
Whoever defames another shall be punished with simple imprisonment for a term which may,
"extend to two years, or with fine, or with both.",
CLASSIFICATION OF OFFENCE,
"Para I Punishment—Simple imprisonment for 2 years, or fine, or both—Non-cognizable—",
Bailable—Triable by Court of Session—Compoundable by the person defamed.,
LLaatteessttLLaawwss..ccoomm,
351,
"Para II Punishment—Simple imprisonment for 2 years, or fine, or both—Non-cognizable—",
Bailable—Triable by Magistrate of the first class—Compoundable by the person defamed with,
the permission of the court.,
"COMMENTS A person cannot be said to have committed an offence under section 500, or",
501 or 502 or 504 of the Code merely because some news item or article is published,
"attributing certain utterances to that person; Laloo Prasad v. State of Bihar, (1997) 2 Crimes",
498 (Pat).,
Section 501. Printing or engraving matter,
known to be defamatory,
"Whoever prints or engraves any matter, knowing or having good reason to believe that such",
"matter is defamatory of any person, shall be punished with simple imprisonment for a term",
"which may extend to two years, or with fine, or with both.",
CLASSIFICATION OF OFFENCE,
"Para I Punishment—Simple imprisonment for 2 years, or fine, or both—Non-cognizable—",
Bailable—Triable by Court of Session—Compoundable by the person defamed.,
"Para II Punishment—Simple imprisonment for 2 years, or fine, or both—Non-cognizable—",
Bailable—Triable by Magistrate of the first class—Non-compoundable.,
Section 502. Sale of printed or engraved,
substance containing defamatory matter,
Whoever sells or offers for sale any printed or engraved substance containing defamatory,
"matter, knowing that it contains such matter, shall be punished with simple imprisonment for",
"a term which may extend to two years, or with fine, or with both.",
CLASSIFICATION OF OFFENCE,
"Para I Punishment—Simple imprisonment for 2 years, or fine, or both—Non-cognizable—",
Bailable—Triable by Court of Session—Compoundable by the person defamed.,
"Para II Punishment—Simple imprisonment for 2 years, or fine, or both—Non-cognizable—",
Bailable—Triable by Magistrate of the first class—Non-compoundable.,
LLaatteessttLLaawwss..ccoomm,
352,
Section 503. Criminal intimidation,
"Whoever threatens another with any injury to his person, reputation or property, or to the",
"person or reputation of any one in whom that person is interested, with intent to cause alarm",
"to that person, or to cause that person to do any act which he is not legally bound to do, or to",
"omit to do any act which that person is legally entitled to do, as the means of avoiding the",
"execution of such threat, commits criminal intimidation. Explanation A threat to injure the",
"reputation of any deceased person in whom the person threatened is interested, is within this",
section.,
"Illustration A, for the purpose of inducing B to desist from prosecuting a civil suit, threatens",
to burn B’s house. A is guilty of criminal intimidation.,
Section 504. Intentional insult with intent to,
provoke breach of the peace,
"Whoever intentionally insults, and thereby gives provocation to any person, intending or",
"knowing it to be likely that such provocation will cause him to break the public peace, or to",
"commit any other offence, shall be punished with imprisonment of either description for a term",
"which may extend to two years, or with fine, or with both.",
"CLASSIFICATION OF OFFENCE Punishment—Imprisonment for 2 years, or fine, or both—",
Non-cognizable—Bailable—Triable by any Magistrate—Compoundable by the person,
insulted.,
Section 505. Statements conducing to public,
mischief,
[505. Statements conducing to public mischief.—,
1,
"[(1)] Whoever makes, publishes or circulates any statement, rumour or report,— (a) with intent",
2,
"to cause, or which is likely to cause, any officer, soldier, [sailor or airman] in the Army, [Navy",
3 4,
or Air Force] [of India] to mutiny or otherwise disregard or fail in his duty as such; or (b) with,
5,
"intent to cause, or which is likely to cause, fear or alarm to the public, or to any section of the",
LLaatteessttLLaawwss..ccoomm,
353,
public whereby any person may be induced to commit an offence against the State or against,
"the public tranquility; or (c) with intent to incite, or which is likely to incite, any class or",
"community of persons to commit any offence against any other class or community, shall be",
"punished with imprisonment which may extend to [three years], or with fine, or with both.",
6,
"[(2) Statements creating or promoting enmity, hatred or ill-will between classes.—Whoever",
7,
"makes, publishes or circulates any statement or report containing rumour or alarming news",
"with intent to create or promote, or which is likely to create or promote, on grounds of religion,",
"race, place of birth, residence, language, caste or community or any other ground whatsoever,",
"feelings of enmity, hatred or ill-will between different religious, racial, language or regional",
"groups or castes or communities, shall be punished with imprisonment which may extend to",
"three years, or with fine, or with both.",
"(3) Offence under sub-section (2) committed in place of worship, etc.—Whoever commits an",
offence specified in sub-section (2) in any place of worship or in an assembly engaged in the,
"performance of religious worship or religious ceremonies, shall be punished with imprisonment",
which may extend to five years and shall also be liable to fine.] Exception.—It does not amount,
"to an offence, within the meaning of this section when the person making, publishing or",
"circulating any such statement, rumour or report, has reasonable grounds for believing that",
"such statement, rumour or report is true and makes, publishes or circulates it [in good faith",
8,
and] without any such intent as aforesaid.],
CLASSIFICATION OF OFFENCE,
"Para I Punishment—Imprisonment for 3 years, or fine, or both—Non-cognizable—Non-",
bailable—Triable by any Magistrate—Non-compoundable.,
"Para II Punishment—Imprisonment for 3 years, or fine, or both—Cognizable—Non-bailable—",
Triable by any Magistrate—Non-compoundable.,
Para III Punishment—Imprisonment for 5 years and fine—Cognizable—Non-bailable—,
Triable by any Magistrate—Non-compoundable.,
COMMENTS Mens rea Mens rea is a necessary postulate for the offence under section,
"505(2) of the Code; Bilal Ahmed Kaloo v. State of Andhra Pradesh, (1997) 7 Supreme Today",
LLaatteessttLLaawwss..ccoomm,
354,
127. Mischief leading to breach of public peace Publication or circulation is sine qua non under,
"section 505(2) of the Code; Bilal Ahmed Kaloo v. State of Andhra Pradesh, (1997) 7 Supreme",
"Today 127. ———————— 1. Subs. by Act 4 of 1898, sec. 6, for the original section 505. 2.",
"Section 505 renumbered as sub-section (1) of that section by Act 35 of 1969, sec. 3. 3. Subs.",
"by Act 10 of 1927, sec. 2 and Sch. I, for “or sailor”. 4. Subs. by Act 10 of 1927, sec. 2 and Sch.",
"I, for “or Navy”. 5. Subs. by A.O. 1950 for “of Her Majesty or in the Imperial Service",
Troops”. The words “or in the Royal Indian Marine” occurring after the words “Majesty”,
"were omitted by Act 35 of 1934, sec. 2 and Sch. 6. Subs. by Act 41 of 1961, sec. 4, for “two",
"years” (w.e.f. 12-9-1961). 7. Ins. by Act 35 of 1969, sec. 3 (w.e.f. 4-6-1969). 8. Subs. by A.O.",
1950 for “of Her Majesty or in the Imperial Service Troops”. The words “or in the Royal,
"Indian Marine” occurring after the words “Majesty” were omitted by Act 35 of 1934, sec. 2",
and Sch.,
Section 506. Punishment for criminal,
intimidation,
"Whoever commits, the offence of criminal intimidation shall be punished with imprisonment of",
"either description for a term which may extend to two years, or with fine, or with both;",
"If threat be to cause death or grievous hurt, etc.—And if the threat be to cause death or",
"grievous hurt, or to cause the destruction of any property by fire, or to cause an offence",
"punishable with death or[imprisonment for life], or with imprisonment for a term which may",
1,
"extend to seven years, or to impute, unchastity to a woman, shall be punished with imprison-",
"ment of either description for a term which may extend to seven years, or with fine, or with",
both.,
CLASSIFICATION OF OFFENCE,
"Para I Punishment—Imprisonment for 2 years, or fine, or both—Non-cognizable-Bailable—",
Triable by any Magistrate—Compoundable by the person intimidated.,
"Para II Punishment—Imprisonment for 7 years, or fine, or both—Non-cognizable—Bailable—",
Triable by Magistrate of the first class—Non-compoundable.,
LLaatteessttLLaawwss..ccoomm,
355,
"State Amendment Uttar Pradesh Imprisonment of 7 years, or fine or both—Cognizable—Non-",
bailable—Triable by Magistrate of the first class—Non-compoundable. Vide Notification No.,
"777/VIII 9-4(2)—87, dated 31st July, 1989, published in U.P. Gazette, Extra., Pt. A, Sec. (kha),",
"dated 2nd August, 1989.",
Comments Threat to reputation Where criminal intimidation was committed by threatening X,
and his daughter with injury to their reputation by having the indecent photographs published;,
"the intent mentioned was to cause alarm to X and his daughter, hence the appellant was",
clearly guilty of the criminal intimidation and it was held that the conviction of the appellant,
"under section 506 is correct; Romesh Chandra v. State, AIR 1960 SC 154. ————————",
"– 1. Subs. by Act 26 of 1955, sec. 117 and Sch., for “transportation for life” (w.e.f. 1-1-1956).",
Section 507. Criminal intimidation by an,
anonymous communication,
"Whoever commits the offence of criminal intimidation by an anonymous communication, or",
having taken precaution to conceal the name or abode of the person from whom the threat,
"comes, shall be punished with imprisonment of either description for a term which may extend",
"to two years, in addition to the punishment provided for the offence by the last preceding",
section.,
"CLASSIFICATION OF OFFENCE Punishment—Imprisonment for 2 years, in addition to the",
punishment under above section—Non-cognizable—Bailable—Triable by Magistrate of the,
first class—Non-compoundable.,
Section 508. Act caused by inducing person,
to believe that he will be rendered an object,
of the Divine displeasure,
Whoever voluntarily causes or attempts to cause any person to do anything which that person,
"is not legally bound to do, or to omit to do anything which he is legally entitled to do, by inducing",
or attempting to induce that person to believe that he or any person in whom he is interested,
will become or will be rendered by some act of the offender an object of Divine displeasure if,
LLaatteessttLLaawwss..ccoomm,
356,
"he does not do the thing which it is the object of the offender to cause him to do, or if he does",
"the thing which it is the object of the offender to cause him to omit, shall be punished with",
"imprisonment of either description for a tem which may extend to one year, or with fine, or with",
both.,
"Illustrations (a) A sits dharna at Z’s door with the intention of causing it to be believed that,",
"by so sitting, he renders Z an object of Divine displeasure. A has committed the offence",
defined in this section.,
"(b) A threatens Z that, unless Z performs a certain act, A will kill one of A’s own children, under",
such circumstances that the killing would be believed to render Z an object of Divine,
displeasure. A has committed the offence defined in this section.,
"CLASSIFICATION OF OFFENCE Punishment—Imprisonment for 1 year, or fine, or both—",
Non-cognizable—Bailable—Triable by any Magistrate—Compoundable by the person against,
whom the offence was committed.,
"Section 509. Word, gesture or act intended to",
insult the modesty of a woman,
"Whoever, intending to insult the modesty of any woman, utters any word, makes any sound",
"or gesture, or exhibits any object, intending that such word or sound shall be heard, of that",
"such gesture or object shall be seen, by such woman, or intrudes upon the privacy of such",
"woman, 1[shall be punished with simple imprisonment for a term which may extend to three",
"years, and also with fine.]",
CLASSIFICATION OF OFFENCE,
"Punishment—Simple imprisonment for 1 year, or fine, or both—Cognizable—Bailable—",
Triable by any Magistrate—Compoundable by the woman whom it was intended to insult or,
whose privacy was intruded upon with the permission of the court. ———————————,
"———————- 1. Inserted by Section 509 of ‘The Criminal Law (Amendment) Act, 2013′",
LLaatteessttLLaawwss..ccoomm,
357,
Section 510. Misconduct in public by a,
drunken person,
"Whoever, in a state of intoxication, appears in any public place, or in any place, or in any place",
"which it is a trespass in him to enter, and there conducts himself in such a manner as to cause",
"annoyance to any person, shall be punished with simple imprisonment for a term which may",
"extend to twenty-four hours, or with fine which may extend to ten rupees, or with both.",
CLASSIFICATION OF OFFENCE,
"Punishment—Simple imprisonment for 24 hours, or fine of 10 rupees, or both—Non-",
cognizable—Bailable—Triable by any Magistrate—Non-compoundable.,
Section 511. Punishment for attempting to commit offences punishable with imprisonment for life,
or other imprisonment,
"Whoever attempts to commit an offence punishable by this Code with 1[imprisonment for life] or imprisonment, or to cause such an",
"offence to be committed, and in such attempts does any act towards the commission of the offence, shall, where no express provision",
"is made by this Code for the punishment of such attempt, be punished with 2[imprisonment of any description provided for the offence,",
"for a term which may extend to one-half of the imprisonment for life or, as the case may be, one-half of the longest term of",
"imprisonment provided for that offence], or with such fine as is provided for the offence, or with both.",
"Illustrations (a) A makes an attempt to steal some jewels by breaking open a box, and finds",
"after so opening the box, that there is no jewel in it. He has done an act towards the",
"commission of theft, and therefore is guilty under this section.",
(b) A makes an attempt to pick the pocket of Z by thrusting his hand into Z’s pocket. A fails in,
the attempt in consequence of Z’s having nothing in his pocket. A is guilty under this section.,
CLASSIFICATION OF OFFENCE Punishment—Imprisonment for life or imprisonment not,
"exceeding half of the longest term provided for the offence, or fine, or both—According as the",
offence is cognizable or non-cognizable—According as the offence attempted by the offender,
is bailable or not—Triable by the court by which the offence attempted is triable—Non-,
compoundable.,
Comments Moral guilt and injury Section 511 is a general provision dealing with attempts to,
commit offences not made punishable by other specific sections. It makes punishable all,
LLaatteessttLLaawwss..ccoomm,
358,
attempts to commit offences punishable with imprisonment and not only those punishable with,
"death. An attempt is made punishable, because every attempt, although it falls short of",
"success, must create alarm, which by itself is an injury, and the moral guilt of the offender is",
the same as if he had succeeded. Moral guilt must be united to injury in order to justify,
"punishment. As the injury is not as great as if the act had been committed, only half the",
punishment is awarded. Attempt to commit an offence can be said to begin when the,
preparations are complete and the culprit commences to do something with the intention of,
committing the offence and which is a step towards the commission of the offence. The,
"moment culprit commences to do an act with the necessary intention, he commences his",
"attempt to commit the offence. The word “attempt” is not itself defined, and must, therefore,",
be taken in its ordinary meaning. This is exactly what the provisions of section 511 require;,
"Koppula Venkat Rao v. State of Andhra Pradesh, (2004) 3 SCC 602.",
LLaatteessttLLaawwss..ccoomm,
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,Sixth Edition
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,ABOUT THE AUTHOR
,M Laxmikanth obtained his postgraduate degree in Political
,Science from Osmania University in 1989. He is the former
,founder and director of an erstwhile coaching institute called
,"Laxmikanth’s IAS Academy, Hyderabad. Other books authored by"
,"him include Governance in India, Objective Indian Polity,"
,Public Administration and Constitution of India.
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,Sixth Edition
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,M Laxmikanth
,Former Founder-Director
,Laxmikanth’s IAS Academy (Closed)
,Hyderabad
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,McGraw Hill Education (India) Private Limited
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,
,
,Preface to the
,Sixth Edition
,
,
,"I  am pleased to place before the readers a thoroughly revised,"
,enlarged and updated edition of this widely read book on Indian
,Polity.
,"In 2011 and 2013, the UPSC changed the pattern and syllabus"
,"of the preliminary and main examinations, respectively. Both"
,"times, the scope of Indian Polity has been considerably increased."
,"Hence, this new edition of the book is more relevant now and is"
,aimed to meet the expanded needs of the aspirants.
,In the course of revision and updation of this edition of the
,"book, various new developments related to the subject, like recent"
,"constitutional amendments, parliamentary legislations, executive"
,"decisions and supreme court judgments, have been taken into"
,account.
,Changes in this Edition:
,1. Addition of 6 new chapters.
,"2. Inclusion of 2017, 2018 and 2019 preliminary questions with"
,answers.
,"3. Inclusion of 2016, 2017, 2018 and 2019 mains questions."
,4. Updation of the year-wise break-up of the UPSC questions
,in the preliminary and main examinations.
,5. Inclusion of additional updated information on a number of
,topics.
,6. New items included in various chapters.
,New Chapters:
,1. Goods and Services Tax Council
,2. National Commission for Backward Classes
,3. National Investigation Agency
,4. National Disaster Management Authority
,5. Role of Regional Parties
,6. Coalition Government
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,
,
,
,I firmly believe that this is now a very comprehensive and
,updated manual. It is a matter of immense satisfaction that the
,previous five editions of this book have received an overwhelming
,response from readers. I am confident that readers would
,continue to repose their faith in this edition as well.
,Constructive comments and concrete suggestions to further
,improve the book are welcome and shall be gratefully
,acknowledged.
,M. LAXMIKANTH
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,
,
,
,Preface to the
,First Edition
,
,
,I  have great pleasure in placing this book before the aspirants of
,the top administrative services. The book has been written to
,meet the growing requirements of the candidates appearing for
,the Civil Services Examinations (Preliminary and Main) conducted
,by the Union Public Service Commission. It directly and fully
,covers the Indian Polity section of the paper on General Studies
,and is also useful for certain optional subjects like Public
,"Administration, Political Science, Law, Sociology and"
,Anthropology.
,This comprehensive volume would enable the readers to
,acquire a complete and detailed understanding of the subject. It
,"covers all dimensions (constitutional, non-constitutional, political"
,and administrative) of the subject. My first-hand experience of
,coaching the candidates for the Civil Services Examinations has
,been a great source of inspiration and has helped me immensely
,in writing this book.
,An effort has been made to make the contents of the book
,"relevant, authentic, and up-to-date. The constitutional provisions"
,are explained in the light of the debates of the Constituent
,Assembly of India as well as the judgements of the Supreme
,Court and the high courts. I have also used tables to make the
,"presentation more clear. The Appendices, provided at the end of"
,"the book, serve as a reference section."
,I welcome all constructive comments and concrete suggestions
,from the readers of this book.
,M. LAXMIKANTH
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,
,
,
,Acknowledgements
,
,
,"D     uring the course of writing this book, I have received help,"
,"encouragement and assistance from my teachers, students,"
,"family members, colleagues, friends, library staff and others."
,I am thankful to all of them.
,"I am particularly grateful to my wife, Smt. M. Vidya, for the"
,encouragement and support that she provided during the
,preparation of the book.
,I am deeply indebted to the eminent political scientists and
,"constitutional experts (Granville Austin, Moris Jones, K.C."
,"Wheare, Rajni Kothari, Paul Appleby, K. Santhanam, N.A."
,"Palkhivala, Soli Sorabji, D.D. Basu, V.N. Shukla, M.P. Jain,"
,Subhash Kashyap) and other scholars of repute whose valuable
,works have been highly useful in the writing of this book.
,"My thanks are also due to Mr. Tanmoy Roychowdhury, Mr."
,"Deepak Singh, Ms. Shukti Mukherjee, Ms. Shalini Jha, Ms."
,Shreya Soni and Ms. Anjali Chakravarty of McGraw Hill India
,Private Limited for their unstinted cooperation in bringing out this
,updated edition on time.
,M. LAXMIKANTH
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,
,
,
,Year-Wise Break-up of the UPSC
,Questions on Indian Polity
,(General Studies—Prelims)
,
,
,Sl.No.      Year           No. of Questions Asked
,1.        2000                     12
,2.        2001                     12
,3.        2002                     19
,4.        2003                     19
,5.        2004                     22
,6.        2005                     10
,7.        2006                     13
,8.        2007                     12
,9.        2008                     13
,10.        2009                     14
,11.        2010                     10
,12.        2011                     12
,13.        2012                     20
,14.        2013                     18
,15.        2014                     13
,16.        2015                     15
,17.        2016                     06
,18.        2017                     22
,19.        2018                     15
,20.        2019                     15
,"Note I: In 2011, the UPSC changed the pattern and syllabus of"
,"the Preliminary Examination. In the new scheme, the Indian Polity"
,section has been renamed as “Indian Polity and Governance”. It
,"covers Constitution, Political System, Panchayati Raj, Public"
,"Policy, Rights Issues, etc. Also, now each question carries two"
,marks (previously one mark).
,"Note II: In the above table, the number of questions asked on"
,“Governance” (since 2011) are also included.
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,
,
,
,Year-Wise Break-up of the UPSC
,Marks on Indian Polity
,(General Studies—Mains)
,
,
,Sl.No.      Year            No. of Questions Asked
,1.        2000                      130
,2.        2001                      100
,3.        2002                      130
,4.        2003                      100
,5.        2004                      100
,6.        2005                      100
,7.        2006                      100
,8.        2007                      100
,9.        2008                      130
,10.        2009                       66
,11.        2010                       66
,12.        2011                      111
,13.        2012                       47
,14.        2013                      100
,15.        2014                       88
,16.        2015                      100
,17.        2016                      112
,18.        2017                      110
,19.        2018                      125
,20.        2019                      125
,"Note I: In 2013, the UPSC changed the pattern and syllabus of"
,"the Main Examination. In the new scheme, a separate and full"
,"paper on “Governance, Constitution, Polity, Social Justice and"
,International Relations” has been introduced. It carries 250 marks.
,"Note II: In the above table, the number of marks allotted to the"
,questions relating to the “Governance Social Justice and
,International Relations” (since 2013) are not included.
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,
,
,
,About the Civil Services
,Examination
,The Civil Services examination comprises two successive
,stages:
,(i) Civil Services (Preliminary) Examination (Objective Type) for
,the selection of candidates for Main Examination; and
,(ii) Civil Services (Main) Examination (Written and Interview) for
,the selection of candidates for the various services and posts.
,Scheme and         subjects   for   the   Preliminary    and   Main
,Examination.
,
,A. PRELIMINARY EXAMINATION
,The Examination shall comprise two compulsory Papers of 200
,marks each.
,Note:
,(i) Both the question papers will be of the objective type (multiple
,choice questions).
,(ii) The question papers will be set both in Hindi and English.
,"However, questions relating to English Language"
,Comprehension Skills of Class X level will be tested through
,passages from English language only without providing Hindi
,translation thereof in the question paper.
,
,B. MAIN EXAMINATION
,The written examination will consist of the following papers:
,
,Qualifying Papers:
,Paper A: (One of the Indian Language to be selected by the
,candidate from the Languages included in the Eighth Schedule to
,the Constitution).
,300 Marks
,Paper B: English
,300 Marks
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,
,
,
,The papers on Indian Languages and English (Paper A and Paper
,B) will be of Matriculation or equivalent standard and will be of
,qualifying nature. The marks obtained in these papers will not be
,counted for ranking.
,Papers to be counted for merit
,Paper I: Essay
,250 Marks
,Paper II: General Studies–I
,"(Indian Heritage and Culture, History and Geography of the World"
,and Society)
,250 Marks
,Paper III: General Studies –II
,250 Marks
,"(Governance, Constitution, Polity, Social Justice and International"
,Relations)
,Paper IV: General Studies –III
,250 Marks
,"(Technology, Economic Development, Bio-diversity, Environment,"
,Security and Disaster Management)
,Paper V: General Studies –IV
,250 Marks
,"(Ethics, Integrity and Aptitude)"
,Paper VI: Optional Subject – Paper 1
,250 Marks
,Paper VII: Optional Subject – Paper 2
,250 Marks
,Sub Total (Written test):
,1750 Marks
,Personality Test:
,275 Marks
,Grand Total:
,2025 Marks
,Candidates may choose any one of the optional subjects
,from amongst the list of subjects given below:
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,
,
,
,List of optional subjects for Main Examination:
,(i)   Agriculture
,(ii)   Animal Husbandry and Veterinary Science
,(iii)   Anthropology
,(iv)    Botany
,(v)    Chemistry
,(vi)    Civil Engineering
,(vii)    Commerce and Accountancy
,(viii)    Economics
,(ix)    Electrical Engineering
,(x)    Geography
,(xi)    Geology
,(xii)    History
,(xiii)    Law
,(xiv)     Management
,(xv)     Mathematics
,(xvi)     Mechanical Engineering
,(xvii)     Medical Science
,(xviii)     Philosophy
,(xix)     Physics
,(xx)     Political Science and International Relations
,(xxi)     Psychology
,(xxii)     Public Administration
,(xxiii)     Sociology
,(xxiv)      Statistics
,(xxv)      Zoology
,(xxvi)      Literature of any one of the following
,"Assamese, Bengali, Bodo, Dogri, Gujarati, Hindi, Kannada,"
,"Kashmiri, Konkani, Maithili, Malayalam, Manipuri, Marathi, Nepali,"
,"Oriya, Punjabi, Sanskrit, Santhali, Sindhi, Tamil, Telugu, Urdu and"
,English.
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,
,
,Contents
,
,Preface to the Sixth Edition
,Preface to the First Edition
,Acknowledgements
,Year-Wise Break-up of the UPSC Questions on Indian Polity
,(General Studies—Prelims)
,Year-Wise Break-up of the UPSC Marks on Indian Polity (General
,Studies—Mains)
,About the Civil Services Examination
,List of Tables
,
,PART-I
,Constitutional Framework
,
,1   Historical Background
,The Company Rule (1773–1858)
,The Crown Rule (1858–1947)
,Notes and References
,
,2   Making of the Constitution
,Demand for a Constituent Assembly
,Composition of the Constituent Assembly
,Working of the Constituent Assembly
,Committees of the Constituent Assembly
,Enactment of the Constitution
,Enforcement of the Constitution
,Experts Committee of the Congress
,Criticism of the Constituent Assembly
,Important Facts
,Hindi Text of the Constitution
,Notes and References
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,
,
,
,3   Salient Features of the Constitution
,Salient Features of the Constitution
,Criticism of the Constitution
,Notes and References
,
,4   Preamble of the Constitution
,Text of the Preamble
,Ingredients of the Preamble
,Key Words in the Preamble
,Significance of the Preamble
,Preamble as Part of the Constitution
,Amendability of the Preamble
,Notes and References
,
,5   Union and its Territory
,Union of States
,Parliament’s Power to Reorganise the States
,Exchange of Territories with Bangladesh
,Evolution of States and Union Territories
,Notes and References
,
,6   Citizenship
,Meaning and Significance
,Constitutional Provisions
,"Citizenship Act, 1955"
,Single Citizenship
,Overseas Citizenship of India
,Notes and References
,
,7   Fundamental Rights
,Features of Fundamental Rights
,Definition of State
,Laws Inconsistent with Fundamental Rights
,Right to Equality
,Right to Freedom
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,
,
,
,Right Against Exploitation
,Right to Freedom of Religion
,Cultural and Educational Rights
,Right to Constitutional Remedies
,Writs—Types and Scope
,Armed Forces and Fundamental Rights
,Martial Law and Fundamental Rights
,Effecting Certain Fundamental Rights
,Present Position of Right to Property
,Exceptions to Fundamental Rights
,Criticism of Fundamental Rights
,Significance of Fundamental Rights
,Rights Outside Part III
,Notes and References
,
,8   Directive Principles of State Policy
,Features of the Directive Principles
,Classification of the Directive Principles
,New Directive Principles
,Sanction Behind Directive Principles
,Criticism of the Directive Principles
,Utility of Directive Principles
,Conflict Between Fundamental Rights and Directive
,Principles
,Implementation of Directive Principles
,Directives Outside Part IV
,Notes and References
,
,9   Fundamental Duties
,Swaran Singh Committee Recommendations
,List of Fundamental Duties
,Features of the Fundamental Duties
,Criticism of Fundamental Duties
,Significance of Fundamental Duties
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,
,
,
,Verma Committee Observations
,Notes and References
,
,10 Amendment of the Constitution
,Procedure for Amendment
,Types of Amendments
,Criticism of the Amendment Procedure
,Notes and References
,
,11 Basic Structure of the Constitution
,Emergence of the Basic Structure
,Elements of the Basic Structure
,Notes and References
,
,PART-II
,System of Government
,
,12 Parliamentary System
,Features of Parliamentary Government
,Features of Presidential Government
,Merits of the Parliamentary System
,Demerits of the Parliamentary System
,Reasons for Adopting Parliamentary System
,Distinction between Indian and British Models
,Notes and References
,
,13 Federal System
,Federal Features of the Constitution
,Unitary Features of the Constitution
,Critical Evaluation of the Federal System
,Notes and References
,
,14 Centre–State Relations
,Legislative Relations
,Administrative Relations
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,
,
,
,Financial Relations
,Trends in Centre–State Relations
,Notes and References
,
,15 Inter-State Relations
,Inter-State Water Disputes
,Inter-State Councils
,"Public Acts, Records and Judicial Proceedings"
,Inter-State Trade and Commerce
,Zonal Councils
,Notes and References
,
,16 Emergency Provisions
,National Emergency
,President’s Rule
,Financial Emergency
,Criticism of the Emergency Provisions
,Notes and References
,
,PART-III
,Central Government
,
,17 President
,Election of the President
,"Qualifications, Oath and Conditions"
,"Term, Impeachment and Vacancy"
,Powers and Functions of the President
,Veto Power of the President
,Ordinance-Making Power of the President
,Pardoning Power of the President
,Constitutional Position of the President
,Notes and References
,
,18 Vice-President
,Election
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,
,
,
,"Qualifications, Oath and Conditions"
,Term and Vacancy
,Powers and Functions
,Indian and American Vice-Presidents Compared
,Notes and References
,
,19 Prime Minister
,Appointment of the Prime Minister
,"Oath, Term and Salary"
,Powers and Functions of the Prime Minister
,Role Descriptions
,Relationship with the President
,Chief Ministers who became Prime Ministers
,Notes and References
,
,20 Central Council of Ministers
,Constitutional Provisions
,Nature of Advice by Ministers
,Appointment of Ministers
,Oath and Salary of Ministers
,Responsibility of Ministers
,Composition of the Council of Ministers
,Council of Ministers vs Cabinet
,Role of Cabinet
,Role Descriptions
,Kitchen Cabinet
,Notes and References
,
,21 Cabinet Committees
,Features of Cabinet Committees
,List of Cabinet Committees
,Functions of Cabinet Committees
,Groups of Ministers
,Notes and References
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,
,
,
,22 Parliament
,Organisation of Parliament
,Composition of the Two Houses
,System of Elections to Lok Sabha
,Duration of Two Houses
,Membership of Parliament
,Presiding Officers of Parliament
,Leaders in Parliament
,Sessions of Parliament
,Devices of Parliamentary Proceedings
,Legislative Procedure in Parliament
,Joint Sitting of Two Houses
,Budget in Parliament
,Multifunctional Role of Parliament
,Ineffectiveness of Parliamentary Control
,Position of Rajya Sabha
,Parliamentary Privileges
,Sovereignty of Parliament
,Notes and References
,
,23 Parliamentary Committees
,Meaning
,Classification
,Financial Committees
,Departmental Standing Committees
,Committees to Inquire
,Committees to Scrutinise and Control
,Committees Relating to the Day-to-Day Business of the
,House
,House-Keeping Committees
,Consultative Committees
,Notes and References
,
,24 Parliamentary Forums
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,
,
,
,Establishment of the Forums
,Objectives of the Forums
,Composition of the Forums
,Functions of the Forums
,Notes and References
,
,25 Parliamentary Group
,Rationale of the Group
,Composition of the Group
,Objectives of the Group
,Functions of the Group
,The Group and IPU
,The Group and CPA
,Notes and References
,
,26 Supreme Court
,Composition and Appointment
,"Qualifications, Oath and Salaries"
,Tenure and Removal
,"Acting, Adhoc and Retired Judges"
,Seat and Procedure
,Independence of Supreme Court
,Jurisdiction and Powers of Supreme Court
,Supreme Court Advocates
,Notes and References
,
,27 Judicial Review
,Meaning of Judicial Review
,Importance of Judicial Review
,Constitutional Provisions for Judicial Review
,Scope of Judicial Review
,Judicial Review of the Ninth Schedule
,Notes and References
,
,28 Judicial Activism
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,
,
,
,Meaning of Judicial Activism
,Judicial Review and Judicial Activism
,Justification of Judicial Activism
,Activators of Judicial Activism
,Apprehensions of Judicial Activism
,Judicial Activism vs. Judicial Restraint
,Notes and References
,
,29 Public Interest Litigation
,Meaning of PIL
,Features of PIL
,Scope of PIL
,Principles of PIL
,Guidelines for Admitting PIL
,Notes and References
,
,PART-IV
,State Government
,
,30 Governor
,Appointment of Governor
,Conditions of Governor’s Office
,Term of Governor’s Office
,Powers and Functions of Governor
,Constitutional Position of Governor
,Notes and References
,
,31 Chief Minister
,Appointment of Chief Minister
,"Oath, Term and Salary"
,Powers and Functions of Chief Minister
,Relationship with the Governor
,Notes and References
,
,32 State Council of Ministers
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,
,
,
,Constitutional Provisions
,Nature of Advice by Ministers
,Appointment of Ministers
,Oath and Salary of Ministers
,Responsibility of Ministers
,Composition of the Council of Ministers
,Cabinet
,Notes and References
,
,33 State Legislature
,Organisation of State Legislature
,Composition of Two Houses
,Duration of Two Houses
,Membership of State Legislature
,Presiding Officers of State Legislature
,Sessions of State Legislature
,Legislative Procedure in State Legislature
,Position of Legislative Council
,Privileges of State Legislature
,Notes and References
,
,34 High Court
,Composition and Appointment
,"Qualifications, Oath and Salaries"
,"Tenure, Removal and Transfer"
,"Acting, Additional and Retired Judges"
,Independence of High Court
,Jurisdiction and Powers of High Court
,Notes and References
,
,35 Tribunals
,Administrative Tribunals
,Tribunals for Other Matters
,Notes and References
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,
,
,
,36 Subordinate Courts
,Constitutional Provisions
,Structure and Jurisdiction
,National Legal Services Authority
,Lok Adalats
,Permanent Lok Adalats
,Family Courts
,Gram Nyayalayas
,Notes and References
,
,37 Special Provisions for Some States
,Provisions for Maharashtra and Gujarat
,Provisions for Nagaland
,Provisions for Assam and Manipur
,Provisions for Andhra Pradesh or Telangana
,Provisions for Sikkim
,Provisions for Mizoram
,Provisions for Arunachal Pradesh and Goa
,Provisions for Karnataka
,Notes and References
,
,PART-V
,Local Government
,
,38 Panchayati Raj
,Evolution of Panchayati Raj
,73rd Amendment Act of 1992
,Compulsory and Voluntary Provisions
,PESA Act of 1996 (Extension Act)
,Finances of Panchayati Raj
,Reasons for Ineffective Performance
,Notes and References
,
,39 Municipalities
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,
,
,
,Evolution of Urban Bodies
,74th Amendment Act of 1992
,Types of Urban Governments
,Municipal Personnel
,Municipal Revenue
,Central Council of Local Government
,Notes and References
,
,PART-VI
,Union Territories and Special Areas
,
,40 Union Territories
,Creation of Union Territories
,Administration of Union Territories
,Special Provisions for Delhi
,Advisory Committees of Union Territories
,Notes and References
,
,41 Scheduled and Tribal Areas
,Administration of Scheduled Areas
,Administration of Tribal Areas
,Notes and References
,
,PART-VII
,Constitutional Bodies
,
,42 Election Commission
,Composition
,Independence
,Powers and Functions
,"Vision, Mission and Principles"
,Notes and References
,
,43 Union Public Service Commission
,Composition
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,
,
,
,Removal
,Independence
,Functions
,Limitations
,Role
,Notes and References
,
,44 State Public Service Commission
,Composition
,Removal
,Independence
,Functions
,Limitations
,Role
,Joint State Public Service Commission
,Notes and References
,
,45 Finance Commission
,Composition
,Functions
,Advisory Role
,Notes and References
,
,46 Goods and Services Tax Council
,Establishment of the Council
,Vision and Mission of the Council
,Composition of the Council
,Working of the Council
,Functions of the Council
,Other Functions of the Council
,Notes and References
,
,47 National Commission for SCs
,Evolution of the Commission
,Functions of the Commission
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,
,
,
,Report of the Commission
,Powers of the Commission
,Notes and References
,
,48 National Commission for STs
,Separate Commission for STs
,Functions of the Commission
,Other Functions of the Commission
,Report of the Commission
,Powers of the Commission
,Notes and References
,
,49 National Commission for BCs
,Establishment of the Commission
,Functions of the Commission
,Report of the Commission
,Powers of the Commission
,Notes and References
,
,50 Special Officer for Linguistic Minorities
,Constitutional Provisions
,Commissioner for Linguistic Minorities
,Role of the Commissioner
,Vision and Mission
,Functions and Objectives
,Notes and References
,
,51 Comptroller and Auditor General of India
,Appointment and Term
,Independence
,Duties and Powers
,Role
,Cag and Corporations
,Appleby’s Criticism
,Notes and References
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,
,
,52 Attorney General of India
,Appointment and Term
,Duties and Functions
,Rights and Limitations
,Solicitor General of India
,Notes and References
,
,53 Advocate General of the State
,Appointment and Term
,Duties and Functions
,Notes and References
,
,PART-VIII
,Non-Constitutional Bodies
,
,54 NITI Aayog
,Establishment
,Rationale
,Composition
,Specialised Wings
,Objectives
,Functions
,Guiding Principles
,Cooperative Federalism
,Criticism
,Attached Offices
,Erstwhile Planning Commission
,National Development Council
,Notes and References
,
,55 National Human Rights Commission
,Establishment of the Commission
,Composition of the Commission
,Functions of the Commission
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,
,
,
,Working of the Commission
,Role of the Commission
,Performance of the Commission
,Notes and References
,
,56 State Human Rights Commission
,Composition of the Commission
,Functions of the Commission
,Working of the Commission
,Human Rights Courts
,2019 Amendment Act
,Notes and References
,
,57 Central Information Commission
,Composition
,Tenure and Service Conditions
,Powers and Functions
,Notes and References
,
,58 State Information Commission
,Composition
,Tenure and Service Conditions
,Powers and Functions
,"RTI Amendment Act, 2019"
,Notes and References
,
,59 Central Vigilance Commission
,Establishment
,Composition
,Organisation
,Functions
,Jurisdiction
,Working
,Vigilance Units in the Ministries
,Whistle Blowers Protection Act (2014)
,    Notes and References
,
,60 Central Bureau of Investigation
,Establishment of CBI
,"Motto, Mission and Vision of CBI"
,Organisation of CBI
,Composition of CBI
,Functions of CBI
,Provision of Prior Permission
,CBI vs. State Police
,CBI Academy
,Notes and References
,
,61 Lokpal and Lokayuktas
,Global Scenario
,Position in India
,Lokpal
,Lokpal and Lokayuktas Act (2013)
,Lokayuktas
,Notes and References
,
,62 National Investigation Agency
,Establishment of the NIA
,Rationale of the NIA
,Functions of the NIA
,Vision of the NIA
,Mission of the NIA
,Jurisdiction of the NIA
,"NIA (Amendment) Act, 2019"
,Notes and References
,
,63 National Disaster Management Authority
,Establishment of the NDMA
,Objectives of the NDMA
,Functions of the NDMA
,    Additional Functions of the NDMA
,State Disaster Management Authority
,District Disaster Management Authority
,Notes and References
,
,PART-IX
,Other Constitutional Dimensions
,
,64 Co-operative Societies
,Constitutional Provisions
,Reasons for the 97th Amendment
,Notes and References
,
,65 Official Language
,Language of the Union
,Regional Languages
,Language of the Judiciary and Texts of Laws
,Special Directives
,Committee of Parliament on Official Language
,Classical Language Status
,Notes and References
,
,66 Public Services
,Classification of Services
,Constitutional Provisions
,Notes and References
,
,67 Rights and Liabilities of the Government
,Property of the Union and the States
,Suits by or Against the Government
,Suits Against Public Officials
,Notes and References
,
,68 Special Provisions Relating to Certain Classes
,Rationale of Special Provisions
,    Specification of Classes
,Components of Special Provisions
,Notes and References
,
,PART-X
,Political Dynamics
,
,69 Political Parties
,Meaning and Types
,Party System in India
,Recognition of National and State Parties
,Notes and References
,
,70 Role of Regional Parties
,Features of Regional Parties
,Classification of Regional Parties
,Rise of Regional Parties
,Role of Regional Parties
,Dysfunctions of Regional Parties
,Notes and References
,
,71 Elections
,Electoral System
,Election Machinery
,Election Process
,Notes and References
,
,72 Election Laws
,"Representation of the People Act, 1950"
,"Representation of the People Act, 1951"
,"Delimitation Act, 2002"
,Other Acts Relating to Elections
,Rules Relating to Elections
,Orders Relating to Elections
,Notes and References
,73 Electoral Reforms
,Committees Related to Electoral Reforms
,Electoral Reforms Before 1996
,Electoral Reforms of 1996
,Electoral Reforms After 1996
,Electoral Reforms Since 2010
,Notes and References
,
,74 Voting Behaviour
,Meaning of Voting Behaviour
,Significance of Voting Behaviour
,Determinants of Voting Behaviour
,Role of Media in Elections and Voting Behaviour
,Notes and References
,
,75 Coalition Government
,Meaning of Coalition Government
,Features of Coalition Government
,Formation of Coalition Governments
,Merits of Coalition Government
,Demerits of Coalition Government
,Notes and References
,
,76 Anti-Defection Law
,Provisions of the Act
,Evaluation of the Act
,91st Amendment Act (2003)
,Notes and References
,
,77 Pressure Groups
,Meaning and Techniques
,Pressure Groups in India
,Notes and References
,
,78 National Integration
,    Meaning of National Integration
,Obstacles to National Integration
,National Integration Council
,National Foundation for Communal Harmony
,Notes and References
,
,79 Foreign Policy
,Principles of Indian Foreign Policy
,Objectives of Indian Foreign Policy
,Gujral Doctrine of India
,Nuclear Doctrine of India
,Connect Central Asia Policy of India
,Act East Policy of India
,Notes and References
,
,PART-XI
,Working of the Constitution
,
,80 National Commission to Review the Working of the
,Constitution
,I. Terms of Reference of the Commission
,II. Fifty Years of Working of the Constitution
,III. Areas of Concern: Commission’s Perception
,IV. Recommendations of the Commission
,V. Earlier Efforts to Review the Constitution
,Notes and References
,
,Appendices
,
,Appendix I: Articles of the Constitution (1–395)
,"Appendix II: Subjects of Union, State and Concurrent Lists"
,Appendix III: Table of Precedence
,Appendix IV: Constitutional Amendments at a Glance
,"Appendix V: Presidents, Vice-Presidents, Prime Ministers, etc."
,Appendix VI: Chairpersons of the National Commissions
,Appendix VII: UPSC Questions on Indian Polity (General Studies
,—Prelims 2010–2019)
,Appendix VIII: Practice Questions on Indian Polity (General
,Studies—Prelims)
,Appendix IX: UPSC Questions on Indian Polity (General Studies
,—Mains 2010–2019)
,Appendix X: Practice Questions on Indian Polity (General Studies
,—Mains)
,
,Additional reading material available at the weblink given below:
,http://www.mhhe.com./indianpolity6e
,
,1. Oath by the Constitutional and Other Authorities
,2. Definitions Under the Constitution
,3. Allied Amending Acts at a Glance
,4. Model Code of Conduct Relating to Elections
,"5. Representation of the People Act, 1950 at a Glance"
,"6. Representation of the People Act, 1951 at a Glance"
,7. Flag Code of India
,8. UPSC Questions on Indian Polity (General Studies—
,Prelims 2000–2009)
,9. UPSC Questions on Indian Polity (General Studies—Mains
,2000–2009)
,                                             List of Tables
,
,Table 1.1    Interim Government (1946)
,Table 1.2    First Cabinet of Free India (1947)
,Table 2.1    Allocation of seats in the Constituent Assembly of
,India (1946)
,Table 2.2    Results of the Elections to the Constituent Assembly
,(July–August 1946)
,Table 2.3    Community-wise Representation in the Constituent
,Assembly (1946)
,Table 2.4    State-wise Membership of the Constituent Assembly
,"of India as on December 31, 1947"
,Table 2.5    Sessions of the Constituent Assembly at a Glance
,Table 2.6    Time Taken by the Framers of Other Constitutions
,"Table 2.7    Articles Related to Short Title, Commencement, Hindi"
,Text and Repeals at a Glance
,Table 3.1    The Constitution of India at a Glance
,Table 3.2    Important Articles of the Constitution at a Glance
,Table 3.3    Schedules of the Constitution at a Glance
,Table 3.4    Sources of the Constitution at a Glance
,Table 5.1    Territory of India in 1950
,Table 5.2    Original Parts of the Constitution Dealing with States
,and Territories
,Table 5.3    Territory of India in 1956
,Table 5.4    Territory of India in 2019
,Table 5.5    Laws Made by Parliament Under Article 3 of the
,Constitution
,Table 5.6    Articles Related to Union and its Territory at a Glance
,"Table 6.1    Comparing NRI, PIO and OCI Cardholder"
,Table 6.2    Articles Related to Citizenship at a Glance
,Table 7.1    Fundamental Rights at a Glance
,Table 7.2    Fundamental Rights (FR) of Foreigners
,Table 7.3     Martial Law Vs National Emergency
,Table 7.4     Articles Related to Fundamental Rights at a Glance
,Table 8.1     Distinction Between Fundamental Rights and
,Directive Principles
,Table 8.2     Articles Related to Directive Principles of State Policy
,at a Glance
,Table 11.1    Evolution of the Basic Structure of the Constitution
,Table 12.1    Comparing Parliamentary and Presidential Systems
,Table 13.1    Comparing Features of Federal and Unitary
,Governments
,Table 14.1    Articles Related to Centre-State Legislative Relations
,at a Glance
,Table 14.2    Articles Related to Centre-State Administrative
,Relations at a Glance
,Table 14.3    Articles Related to Centre-State Financial Relations
,at a Glance
,Table 15.1    Inter-State Water Dispute Tribunals Set-up So Far
,Table 15.3    Articles Related to Inter-State Relations at a Glance
,Table 15.2    Zonal Councils at a Glance
,Table 16.1    Comparing National Emergency and President’s
,Rule
,Table 16.2    Imposition of President’s Rule (1951–2019)
,Table 16.3    Articles Related to Emergency Provisions at a
,Glance
,Table 17.1    Elections of the Presidents (1952–2017)
,Table 17.2    Veto Power of the President At a Glance
,Table 17.3    Articles Related to President at a Glance
,Table 18.1    Elections of the Vice-Presidents (1952–2017)
,Table 18.2    Articles Related to Vice-President at a Glance
,Table 19.1    Articles Related to Prime Minister at a Glance
,Table 20.1    Distinction Between Council of Ministers and Cabinet
,Table 20.2    Articles Related to Central Council of Ministers at a
,Glance
,Table 22.1    Adjournment vs Prorogation
,Table 22.2    Censure Motion vs No Confidence Motion
,Table 22.3    Public Bill vs Private Bill
,Table 22.4    Ordinary Bill vs Money Bill
,Table 22.5    Allocation of Seats in Parliament for States and
,Union Territories (2019)
,Table 22.6    Seats Reserved for SCs and STs in the Lok Sabha
,(2019)
,Table 22.7    Durations of the Lok Sabha (from First Lok Sabha to
,Present Lok Sabha)
,Table 22.8    Speakers of the Lok Sabha (from First Lok Sabha to
,Present Lok Sabha)
,Table 22.9    Articles Related to Parliament at a Glance
,Table 23.1    Departmental Standing Committees and their
,Jurisdiction (2019)
,Table 26.1    Comparing Indian and American Supreme Courts
,Table 26.2    Articles Related to Supreme Court at a Glance
,Table 27.1    Number of Acts and Regulations Included in the
,Ninth Schedule
,Table 30.1    Comparing Veto Powers of President and Governor
,Table 30.2    Comparing Ordinance-Making Power of President
,and Governor
,Table 30.3    Comparing Pardoning Powers of President and
,Governor
,Table 30.4    Articles Related to Governor at a Glance
,Table 31.1    Articles Related to Chief Minister at a Glance
,Table 32.1    Articles Related to State Council of Ministers at a
,Glance
,Table 33.1    Comparing Legislative Procedure in the Parliament
,and State Legislature
,Table 33.2    Strength of Legislative Assemblies and Legislative
,Councils (2019)
,Table 33.3    Seats Reserved for SCs and STs in the Legislative
,Assemblies (2019)
,Table 33.4    Articles Related to State Legislature at a Glance
,Table 33.5    Laws made by Parliament under Article 169 of the
,Constitution
,Table 34.1    Name and Jurisdiction of High Courts
,Table 34.2    Articles Related to High Courts at a Glance
,Table 35.1    Name and Jurisdiction of Benches of CAT
,Table 35.2    Circuit Sittings of Benches of CAT
,Table 35.3    Articles Related to Tribunals at a Glance
,Table 36.1    Articles Related to Subordinate Courts at a Glance
,Table 37.1    Articles Related to Special Provisions for some
,States at a Glance
,Table 38.1    Study Teams and Committees on Panchayati Raj
,Table 38.2    Articles Related to Panchayats at a Glance
,Table 38.3    Name of Panchayati Raj Institutions in the States
,(2019)
,Table 38.4    Milestones in the Evolution of Panchayati Raj
,Table 38.5    Committees Related to Panchayati Raj (After
,Constitutionalisation)
,Table 39.1    Committees and Commissions on Urban Local
,Governments
,Table 39.2    Classification of Cantonment Boards
,Table 39.3    Articles Related to Municipalities at a Glance
,Table 39.4    Name of Urban Local Bodies in the States (2019)
,Table 40.1    Administrative System of Union Territories at a
,Glance
,Table 40.2    Comparing States and Union Territories
,Table 40.3    Articles Related to Union Territories at a Glance
,Table 41.1    Tribal Areas at a Glance (2019)
,Table 41.2    Articles Related to Scheduled and Tribal Areas at a
,Glance
,Table 41.3    Parliamentary Laws Related to the Fifth and Sixth
,Schedules of the Constitution
,Table 43.1    Articles Related to UPSC at a Glance
,Table 44.1    Articles Related to SPSC at a Glance
,Table 45.1    Finance Commissions Appointed so far
,Table 45.2    Articles Related to Finance Commission at a Glance
,Table 51.1    Articles Related to Comptroller and Auditor-General
,of India at a Glance
,Table 52.1    Articles Related to Attorney-General of India at a
,Glance
,Table 53.1    Articles Related to Advocate-General of the state at a
,Glance
,Table 53.2    Articles Related to Constitutional Bodies at a Glance
,Table 57.1    National Commissions / Central Bodies and the
,Related Ministries
,Table 61.1    Establishment of Lokayukta in States (Chronological
,Order)
,Table 64.1    Articles Related to Co-operative Societies at a
,Glance
,Table 65.1    Languages conferred with Classical Language
,Status
,Table 65.2    Articles Related to Official Language at a Glance
,Table 66.1    Articles Related to Public Services at a Glance
,Table 67.1    Articles Related to Rights and Liabilities of the
,Government at a Glance
,Table 68.1    Articles Related to Special Provisions for Certain
,Classes at a Glance
,Table 69.1    Recognised National Parties and State Parties (First
,to Seventeenth General Elections)
,Table 69.2    Recognised National Parties and their Symbols
,(2019)
,Table 69.3    Recognised State Parties and their Symbols (2019)
,Table 69.4    Formation of Political Parties (Chronological Order)
,Table 71.1    Results of Lok Sabha Elections
,Table 71.2    Prime Ministers after each Lok Sabha General
,Election
,Table 71.3    Participation in Lok Sabha Elections
,Table 71.4    Women in Lok Sabha Elections
,Table 71.5    Cost of Lok Sabha Elections
,Table 71.6    Largest and Smallest (Area-wise) Lok Sabha
,Constituencies in Fourteenth General Elections
,(2004)
,Table 71.7    Largest and Smallest (Electors-wise) Lok Sabha
,Constituencies in Sixteenth General Elections (2014)
,Table 71.8    Articles Related to Elections at a Glance
,Table 73.1    Limit on Election Expenditure (As declared in 2014)
,Table 75.1    Formation of Coalition Governments at the Centre
,Table 78.1    Meetings of the National Integration Council
,                  PART-I
,CONSTITUTIONAL FRAMEWORK
,
,1. Historical Background
,2. Making of the Constitution
,3. Salient Features of the Constitution
,4. Preamble of the Constitution
,5. Union and its Territory
,6. Citizenship
,7. Fundamental Rights
,8. Directive Principles of State Policy
,9. Fundamental Duties
,10. Amendment of the Constitution
,11. Basic Structure of the Constitution
, 1      Historical Background
,
,
,
,
,T
,"he British came to India in 1600 as traders, in the form of"
,"East India Company, which had the exclusive right of"
,trading in India under a charter granted by Queen Elizabeth
,"I. In 1765, the Company, which till now had purely trading"
,"functions obtained the ‘diwani’ (i.e., rights over revenue and civil"
,"justice) of Bengal, Bihar and Orissa.1 This started its career as a"
,"territorial power. In 1858, in the wake of the ‘sepoy mutiny’, the"
,British Crown assumed direct responsibility for the governance of
,India. This rule continued until India was granted independence
,"on August 15, 1947."
,
,
,"With Independence came the need for a Constitution. Hence, a"
,Constituent Assembly was formed for this purpose in 1946 and on
,"January 26, 1950, the Constitution came into being. However,"
,various features of the Indian Constitution and polity have their
,roots in the British rule. There were certain events in the British
,rule that laid down the legal framework for the organisation and
,functioning of government and administration in British India.
,These events have greatly influenced our constitution and polity.
,They are explained here in a chronological order under two major
,headings :
,1. The Company Rule (1773 – 1858)
,2. The Crown Rule (1858 – 1947)
, THE COMPANY RULE (1773–1858)
,
,Regulating Act of 1773
,This act was of great constitutional importance as (a) it was the
,first step taken by the British Government to control and regulate
,"the affairs of the East India Company in India; (b) it recognised,"
,"for the first time, the political and administrative functions of the"
,Company; and (c) it laid the foundations of central administration
,in India.
,The features of this Act were as follows:
,1. It designated the Governor of Bengal as the ‘Governor-
,General of Bengal’ and created an Executive Council of four
,members to assist him. The first such GovernorGeneral was
,Lord Warren Hastings.
,2. It made the governors of Bombay and Madras presidencies
,"subordinate to the governor-general of Bengal, unlike earlier,"
,when the three presidencies were independent of one
,another.
,3. It provided for the establishment of a Supreme Court at
,Calcutta (1774) comprising one chief justice and three other
,judges.
,4. It prohibited the servants of the Company from engaging in
,any private trade or accepting presents or bribes from the
,‘natives’.
,5. It strengthened the control of the British Government over
,the Company by requiring the Court of Directors (governing
,"body of the Company) to report on its revenue, civil, and"
,military affairs in India.
,
,Amending Act of 1781
,"In a bid to rectify the defects of the Regulating Act of 1773, the"
,"British Parliament passed the Amending Act of 1781, also known"
,as the Act of Settlement.
,The features of this Act were as follows:
,  1. It exempted the Governor-General and the Council from the
,jurisdiction of the Supreme Court for the acts done by them
,"in their official capacity. Similarly, it also exempted the"
,servants of the company from the jurisdiction of the
,Supreme Court for their official actions.
,2. It excluded the revenue matters and the matters arising in
,the collection of revenue from the jurisdiction of the Supreme
,Court.
,3. It provided that the Supreme Court was to have jurisdiction
,over all the inhabitants of Culcutta. It also required the court
,"to administer the personal law of the defendants i.e., Hindus"
,were to be tried according to the Hindu law and Muslims
,were to be tried according to the Mohammedan law.
,4. It laid down that the appeals from the Provincial Courts
,could be taken to the Governor-General-in-Council and not
,to the Supreme Court.
,5. It empowered the Governor-General-inCouncil to frame
,regulations for the Provincial Courts and Councils.
,
,Pitt’s India Act of 1784
,The next important act was the Pitt’s India Act2 of 1784.
,The features of this Act were as follows:
,1. It distinguished between the commercial and political
,functions of the Company.
,2. It allowed the Court of Directors to manage the commercial
,"affairs, but created a new body called Board of Control to"
,"manage the political affairs. Thus, it established a system of"
,double government.
,3. It empowered the Board of Control to supervise and direct
,all operations of the civil and military government or
,revenues of the British possessions in India.
,"Thus, the act was significant for two reasons: first, the"
,Company’s territories in India were for the first time called the
,"‘British possessions in India’; and second, the British Government"
,was given the supreme control over Company’s affairs and its
,administration in India.
,Act of 1786
,"In 1786, Lord Cornwallis was appointed as the Governor-General"
,"of Bengal. He placed two demands to accept that post, viz.,"
,1. He should be given power to override the decision of his
,council in special cases.
,2. He would also be the Commander-in-Chief.
,"Accordingly, the Act of 1786 was enacted to make both the"
,provisions.
,
,Charter Act of 1793
,The features of this Act were as follows:
,1. It extended the overriding power given to Lord Cornwallis
,"over his council, to all future Governor-Generals and"
,Governors of Presidencies.
,2. It gave the Governor-General more powers and control over
,the governments of the subordinate Presidencies of Bombay
,and Madras.
,3. It extended the trade monopoly of the Company in India for
,another period of twenty years.
,4. It provided that the Commander-in-Chief was not to be a
,"member of the Governor-General’s council, unless he was"
,so appointed.
,5. It laid down that the members of the Board of Control and
,"their staff were, henceforth, to be paid out of the Indian"
,revenues.
,
,Charter Act of 1813
,The features of this Act were as follows:
,"1. It abolished the trade monopoly of the company in India i.e.,"
,the Indian trade was thrown open to all British merchants.
,"However, it continued the monopoly of the company over"
,trade in tea and trade with China.
,2. It asserted the sovereignty of the British Crown over the
,Company’s territories in India.
,3. It allowed the Christian missionaries to come to India for the
,purpose of enlightening the people.
,  4. It provided for the spread of western education among the
,inhabitants of the British territories in India.
,5. It authorised the Local Governments in India to impose
,taxes on persons. They could also punish the persons for
,not paying taxes.
,
,Charter Act of 1833
,This Act was the final step towards centralisation in British India.
,The features of this Act were as follows:
,1. It made the Governor-General of Bengal as the Governor-
,General of India and vested in him all civil and military
,"powers. Thus, the act created, for the first time, Government"
,of India having authority over the entire territorial area
,possessed by the British in India. Lord William Bentick was
,the first Governor-General of India.
,2. It deprived the Governor of Bombay and Madras of their
,legislative powers. The Governor-General of India was given
,exclusive legislative powers for the entire British India. The
,laws made under the previous acts were called as
,"Regulations, while laws made under this act were called as"
,Acts.
,3. It ended the activities of the East India Company as a
,"commercial body, which became a purely administrative"
,body. It provided that the Company’s territories in India were
,"held by it ‘in trust for His Majesty, His heirs and successors’."
,4. The Charter Act of 1833 attempted to introduce a system of
,open competition for selection of civil servants and stated
,that the Indians should not be debarred from holding any
,"place, office and employment under the Company. However,"
,this provision was negated after opposition from the Court of
,Directors.
,
,Charter Act of 1853
,This was the last of the series of Charter Acts passed by the
,British Parliament between 1793 and 1853. It was a significant
,constitutional landmark.
,The features of this Act were as follows:
,"1. It separated, for the first time, the legislative and executive"
,functions of the Governor-General’s council. It provided for
,addition of six new members called legislative councillors to
,"the council. In other words, it established a separate"
,Governor-General’s legislative council which came to be
,known as the Indian (Central) Legislative Council. This
,legislative wing of the council functioned as a mini-
,"Parliament, adopting the same procedures as the British"
,"Parliament. Thus, legislation, for the first time, was treated"
,"as a special function of the government, requiring special"
,machinery and special process.
,2. It introduced an open competition system of selection and
,recruitment of civil servants. The covenanted civil service3
,"was, thus, thrown open to the Indians also. Accordingly, the"
,Macaulay Committee (the Committee on the Indian Civil
,Service) was appointed in 1854.
,3. It extended the Company’s rule and allowed it to retain the
,possession of Indian territories on trust for the British Crown.
,"But, it did not specify any particular period, unlike the"
,previous Charters. This was a clear indication that the
,Company’s rule could be terminated at any time the
,Parliament liked.
,"4. It introduced, for the first time, local representation in the"
,Indian (Central) Legislative Council. Of the six new
,"legislative members of the GovernorGeneral’s council, four"
,members were appointed by the local (provincial)
,"governments of Madras, Bombay, Bengal and Agra."
, THE CROWN RULE (1858–1947)
,
,Government of India Act of 1858
,This significant Act was enacted in the wake of the Revolt of
,1857–also known as the First War of Independence or the ‘sepoy
,mutiny’. The act known as the Act for the Good Government of
,"India, abolished the East India Company, and transferred the"
,"powers of Government, territories and revenues to the British"
,Crown.
,The features of this Act were as follows:
,"1. It provided that India, henceforth, was to be governed by,"
,"and in the name of, Her Majesty. It changed the designation"
,of the Governor-General of India to that of Viceroy of India.
,He (Viceroy) was the direct representative of the British
,"Crown in India. Lord Canning, thus, became the first Viceroy"
,of India.
,2. It ended the system of double Government by abolishing the
,Board of Control and Court of Directors.
,"3. It created a new office, Secretary of State for India, vested"
,with complete authority and control over Indian
,administration. The secretary of state was a member of the
,British Cabinet and was responsible ultimately to the British
,Parliament.
,4. It established a 15-member council of India to assist the
,Secretary of State for India. The council was an advisory
,body. The secretary of state was made the Chairman of the
,council.
,5. It constituted the Secretary of State-inCouncil as a body
,"corporate, capable of suing and being sued in India and in"
,England.
,"‘The Act of 1858 was, however, largely confined to the"
,improvement of the administrative machinery by which the Indian
,Government was to be supervised and controlled in England. It
,did not alter in any substantial way the system of Government that
,prevailed in India4 .’
,Indian Councils Act of 1861
,"After the great revolt of 1857, the British Government felt the"
,necessity of seeking the cooperation of the Indians in the
,administration of their country. In pursuance of this policy of
,"association, three acts were enacted by the British Parliament in"
,"1861, 1892 and 1909. The Indian Councils Act of 1861 is an"
,important landmark in the constitutional and political history of
,India.
,The features of this Act were as follows:
,1. It made a beginning of the representative institutions by
,"associating Indians with the law-making process. It, thus,"
,provided that the Viceroy should nominate some Indians as
,"non-official members of his expanded council. In 1862, Lord"
,"Canning, the then Viceroy, nominated three Indians to his"
,"legislative council–the Raja of Benaras, the Maharaja of"
,Patiala and Sir Dinkar Rao.
,2. It initiated the process of decentralisation by restoring the
,legislative powers to the Bombay and Madras Presidencies.
,"It, thus, reversed the centralising tendency that started from"
,the Regulating Act of 1773 and reached its climax under the
,Charter Act of 1833. This policy of legislative devolution
,resulted in the grant of almost complete internal autonomy to
,the provinces in 1937.
,3. It also provided for the establishment of new legislative
,"councils for Bengal, North-Western Provinces and Punjab,"
,"which were established in 1862, 1886 and 1897,"
,respectively.
,4. It empowered the Viceroy to make rules and orders for the
,more convenient transaction of business in the council. It
,"also gave a recognition to the ‘portfolio’ system, introduced"
,"by Lord Canning in 1859. Under this, a member of the"
,Viceroy’s council was made in-charge of one or more
,departments of the Government and was authorised to issue
,final orders on behalf of the council on matters of his
,department(s).
,"5. It empowered the Viceroy to issue ordinances, without the"
,"concurrence of the legislative council, during an emergency."
,     The life of such an ordinance was six months.
,
,Indian Councils Act of 1892
,The features of this Act were as follows:
,1. It increased the number of additional (non-official) members
,"in the Central and provincial legislative councils, but"
,maintained the official majority in them.
,2. It increased the functions of legislative councils and gave
,them the power of discussing the budget5 and addressing
,questions to the executive.
,3. It provided for the nomination of some non-official members
,of the (a) Central Legislative Council by the viceroy on the
,recommendation of the provincial legislative councils and the
,"Bengal Chamber of Commerce, and (b) that of the provincial"
,legislative    councils   by     the    Governors    on   the
,"recommendation of the district boards, municipalities,"
,"universities, trade associations, zamin-dars and chambers."
,‘The act made a limited and indirect provision for the use of
,election in filling up some of the non-official seats both in the
,Central and provincial legislative councils. The word “election”
,"was, however, not used in the Act. The process was described as"
,nomination made on the recommendation of certain bodies6 .’
,
,Indian Councils Act of 1909
,This Act is also known as Morley-Minto Reforms (Lord Morley was
,the then Secretary of State for India and Lord Minto was the then
,Viceroy of India).
,The features of this Act were as follows:
,"1. It considerably increased the size of the legislative councils,"
,both Central and provincial. The number of members in the
,Central legislative council was raised from 16 to 60. The
,number of members in the provincial legislative councils was
,not uniform.
,"2. It retained official majority in the Central legislative council,"
,but allowed the provincial legislative councils to have non-
,official majority.
,  3. It enlarged the deliberative functions of the legislative
,"councils at both the levels. For example, members were"
,"allowed to ask supplementary questions, move resolutions"
,on the budget and so on.
,4. It provided (for the first time) for the association of Indians
,with the executive councils of the Viceroy and Governors.
,Satyendra Prasad Sinha became the first Indian to join the
,Viceroy’s executive council. He was appointed as the Law
,Member.
,5. It introduced a system of communal representation for
,Muslims by accepting the concept of ‘separate electorate’.
,"Under this, the Muslim members were to be elected only by"
,"Muslim voters. Thus, the Act ‘legalised communalism’ and"
,Lord Minto came to be known as the Father of Communal
,Electorate.
,6. It also provided for the separate representation of
,"presidency     corporations,     chambers     of    commerce,"
,universities and zamindars.
,
,Government of India Act of 1919
,"On August 20, 1917, the British Government declared, for the first"
,"time, that its objective was the gradual introduction of responsible"
,Government in India7 .
,"The Government of India Act of 1919 was thus enacted, which"
,came into force in 1921. This Act is also known as Montagu-
,Chelmsford Reforms (Montagu was the Secretary of State for
,India and Lord Chelmsford was the Viceroy of India).
,The features of this Act were as follows:
,1. It relaxed the central control over the provinces by
,demarcating and separating the central and provincial
,subjects. The central and provincial legislatures were
,authorised to make laws on their respective list of subjects.
,"However, the structure of government continued to be"
,centralised and unitary.
,2. It further divided the provincial subjects into two parts–
,transferred and reserved. The transferred subjects were to
,be administered by the Governor with the aid of Ministers
,"       responsible to the legislative council. The reserved subjects,"
,"on the other hand, were to be administered by the Governor"
,and his executive council without being responsible to the
,legislative council. This dual scheme of governance was
,known as ‘dyarchy’–a term derived from the Greek word di-
,"arche which means double rule. However, this experiment"
,was largely unsuccessful.
,"3.   It introduced, for the first time, bicameralism and direct"
,"elections in the country. Thus, the Indian legislative council"
,was replaced by a bicameral legislature consisting of an
,Upper House (Council of State) and a Lower House
,(Legislative Assembly). The majority of members of both the
,Houses were chosen by direct election.
,4.   It required that the three of the six members of the Viceroy’s
,executive Council (other than the Commander-in-Chief)
,were to be Indian.
,5.   It extended the principle of communal representation by
,"providing separate electorates for Sikhs, Indian Christians,"
,Anglo-Indians and Europeans.
,6.   It granted franchise to a limited number of people on the
,"basis of property, tax or education."
,7.   It created a new office of the High Commissioner for India in
,London and transferred to him some of the functions hitherto
,performed by the Secretary of State for India.
,8.   It provided for the establishment of a public service
,"commission. Hence, a Central Public Service Commission"
,was set up in 1926 for recruiting civil servants8 .
,"9.   It separated, for the first time, provincial budgets from the"
,Central budget and authorised the provincial legislatures to
,enact their budgets.
,10.    It provided for the appointment of a statutory commission to
,inquire into and report on its working after ten years of its
,coming into force.
,
,Simon Commission
,"In November 1927 itself (i.e., 2 years before the schedule), the"
,British Government announced the appointment a seven-member
,statutory commission under the chairmanship of Sir John Simon
,to report on the condition of India under its new Constitution. All
,"the members of the commission were British and hence, all the"
,parties boycotted the commission. The commission submitted its
,"report in 1930 and recommended the abolition of dyarchy,"
,"extension of responsible Government in the provinces,"
,"establishment of a federation of British India and princely states,"
,continuation of communal electorate and so on. To consider the
,"proposals of the commission, the British Government convened"
,three round table conferences of the representatives of the British
,"Government, British India and Indian princely states. On the basis"
,"of these discussions, a ‘White Paper on Consitutional Reforms’"
,was prepared and submitted for the consideration of the Joint
,Select Committee of the British Parliament. The recommendations
,of this committee were incorporated (with certain changes) in the
,next Government of India Act of 1935.
,
,Communal Award
,"In August 1932, Ramsay MacDonald, the British Prime Minister,"
,"announced a scheme of representation of the minorities, which"
,came to be known as the Communal Award. The award not only
,"continued separate electorates for the Muslims, Sikhs, Indian"
,"Christians, Anglo-Indians and Europeans but also extended it to"
,the depressed classes (Scheduled Castes). Gandhiji was
,distressed over this extension of the principle of communal
,representation to the depressed classes and undertook fast unto
,"death in Yerawada Jail (Poona) to get the award modified. At last,"
,there was an agreement between the leaders of the Congress and
,"the depressed classes. The agreement, known as Poona Pact,"
,retained the Hindu joint electorate and gave reserved seats to the
,depressed classes.
,
,Government of India Act of 1935
,The Act marked a second milestone towards a completely
,responsible government in India. It was a lengthy and detailed
,document having 321 Sections and 10 Schedules.
,The features of this Act were as follows:
,1. It provided for the establishment of an All-India Federation
,consisting of provinces and princely states as units. The Act
,divided the powers between the Centre and units in terms of
,"three lists–Federal List (for Centre, with 59 items), Provincial"
,"List (for provinces, with 54 items) and the Concurrent List"
,"(for both, with 36 items). Residuary powers were given to the"
,"Viceroy. However, the federation never came into being as"
,the princely states did not join it.
,2. It abolished dyarchy in the provinces and introduced
,‘provincial autonomy’ in its place. The provinces were
,allowed to act as autonomous units of administration in their
,"defined spheres. Moreover, the Act introduced responsible"
,"Governments in provinces, that is, the Governor was"
,required to act with the advice of ministers responsible to the
,provincial legislature. This came into effect in 1937 and was
,discontinued in 1939.
,3. It provided for the adoption of dyarchy at the Centre.
,"Consequently, the federal subjects were divided into"
,"reserved subjects and transferred subjects. However, this"
,provision of the Act did not come into operation at all.
,4. It introduced bicameralism in six out of eleven provinces.
,"Thus, the legislatures of Bengal, Bombay, Madras, Bihar,"
,Assam and the United Provinces were made bicameral
,consisting of a legislative council (upper house) and a
,"legislative assembly (lower house). However, many"
,restrictions were placed on them.
,5. It further extended the principle of communal representation
,by providing separate electorates for depressed classes
,"(Scheduled Castes), women and labour (workers)."
,"6. It abolished the Council of India, established by the"
,Government of India Act of 1858. The secretary of state for
,India was provided with a team of advisors.
,7. It extended franchise. About 10 per cent of the total
,population got the voting right.
,8. It provided for the establishment of a Reserve Bank of India
,to control the currency and credit of the country.
,9. It provided for the establishment of not only a Federal Public
,"Service Commission, but also a Provincial Public Service"
,     Commission and Joint Public Service Commission for two or
,more provinces.
,"10. It provided for the establishment of a Federal Court, which"
,was set up in 1937.
,
,Indian Independence Act of 1947
,"On February 20, 1947, the British Prime Minister Clement Atlee"
,"declared that the British rule in India would end by June 30,1948;"
,after which the power would be transferred to responsible Indian
,hands. This announcement was followed by the agitation by the
,Muslim League demanding partition of the country. Again on June
,"3, 1947, the British Government made it clear that any"
,Constitution framed by the Constituent Assembly of India (formed
,in 1946) cannot apply to those parts of the country which were
,"unwilling to accept it. On the same day (June 3, 1947), Lord"
,"Mountbatten, the Viceroy of India, put forth the partition plan,"
,known as the Mountbatten Plan. The plan was accepted by the
,Congress and the Muslim League. Immediate effect was given to
,the plan by enacting the Indian Independence Act9 (1947).
,The features of this Act were as follows:
,1. It ended the British rule in India and declared India as an
,"independent and sovereign state from August 15, 1947."
,2. It provided for the partition of India and creation of two
,independent dominions of India and Pakistan with the right
,to secede from the British Commonwealth.
,"3. It abolished the office of Viceroy and provided, for each"
,"dominion, a governorgeneral, who was to be appointed by"
,the British King on the advice of the dominion cabinet. His
,Majesty’s Government in Britain was to have no
,responsibility with respect to the Government of India or
,Pakistan.
,4. It empowered the Constituent Assemblies of the two
,dominions to frame and adopt any constitution for their
,respective nations and to repeal any act of the British
,"Parliament, including the Independence act itself."
,5. It empowered the Constituent Assemblies of both the
,dominions to legislate for their respective territories till the
,      new constitutions were drafted and enforced. No Act of the
,"British Parliament passed after August 15, 1947 was to"
,extend to either of the new dominions unless it was
,extended thereto by a law of the legislature of the dominion.
,6. It abolished the office of the Secretary of State for India and
,transferred his functions to the Secretary of State for
,Commonwealth Affairs.
,7. It proclaimed the lapse of British paramountcy over the
,Indian princely states and treaty relations with tribal areas
,"from August 15, 1947."
,8. It granted freedom to the Indian princely states either to join
,the Dominion of India or Dominion of Pakistan or to remain
,independent.
,9. It provided for the governance of each of the dominions and
,"the provinces by the Government of India Act of 1935, till the"
,new Constitutions were framed. The dominions were
,however authorised to make modifications in the Act.
,10. It deprived the British Monarch of his right to veto bills or ask
,"for reservation of certain bills for his approval. But, this right"
,was reserved for the GovernorGeneral. The Governor-
,General would have full power to assent to any bill in the
,name of His Majesty.
,11. It designated the Governor-General of India and the
,provincial governors as constitutional (nominal) heads of the
,states. They were made to act on the advice of the
,respective council of ministers in all matters.
,12. It dropped the title of Emperor of India from the royal titles of
,the King of England.
,13. It discontinued the appointment to civil services and
,reservation of posts by the secretary of state for India. The
,"members of the civil services appointed before August 15,"
,1947 would continue to enjoy all benefits that they were
,entitled to till that time.
,"At the stroke of midnight of 14-15 August, 1947, the British rule"
,came to an end and power was transferred to the two new
,independent Dominions of India and Pakistan10. Lord Mountbatten
,became the first GovernorGeneral of the new Dominion of India.
,He swore in Jawaharlal Nehru as the first Prime Minister of
,independent India. The Constituent Assembly of India formed in
,1946 became the Parliament of the Indian Dominion.
,
,Table 1.1 Interim Government (1946)
,Sl. Members                 Portfolios Held
,No.
,1.    Jawaharlal Nehru     Vice-President of the Council;
,External Affairs & Commonwealth
,Relations
,"2.    Sardar Vallabhbhai   Home, Information & Broadcasting"
,Patel
,3.    Dr. Rajendra Prasad Food & Agriculture
,4.    Dr. John Mathai      Industries & Supplies
,5.    Jagjivan Ram         Labour
,6.    Sardar Baldev Singh Defence
,"7.    C.H. Bhabha          Works, Mines & Power"
,8.    Liaquat Ali Khan     Finance
,9.    Abdur Rab Nishtar    Posts & Air
,10.   Asaf Ali             Railways & Transport
,11.   C. Rajagopalachari   Education & Arts
,12.   I.I. Chundrigar      Commerce
,13.   Ghaznafar Ali Khan   Health
,14.   Joginder Nath        Law
,Mandal
,Note: The members of the interim Government were members of
,the Viceroy’s Executive Council. The Viceroy continued to be the
,"head of the Council. But, Jawaharlal Nehru was designated as the"
,Vice-President of the Council.
,
,Table 1.2 First Cabinet of Free India (1947)
,Sl.   Members              Portfolios Held
,No.
,1.     Jawaharlal Nehru      Prime Minister; External Affairs &
,Commonwealth Relations; Scientific
,Research
,"2.     Sardar Vallabhbhai    Home, Information & Broadcasting;"
,Patel                 States
,3.     Dr. Rajendra Prasad Food & Agriculture
,4.     Maulana Abul Kalam Education
,Azad
,5.     Dr. John Mathai       Railways & Transport
,6.     R.K. Shanmugham       Finance
,Chetty
,7.     Dr. B.R. Ambedkar     Law
,8.     Jagjivan Ram          Labour
,9.     Sardar Baldev Singh Defence
,10.    Raj Kumari Amrit      Health
,Kaur
,11.    C.H. Bhabha           Commerce
,12.    Rafi Ahmed Kidwai     Communication
,13.    Dr. Shayama Prasad Industries & Supplies
,Mukherji
,"14.    V.N. Gadgil           Works, Mines & Power"
,
,
,NOTES AND REFERENCES
,"1. The Mughal Emperor, Shah Alam, granted ‘Diwani’ to"
,the Company after its victory in the Battle of Buxar
,(1764).
,2. It was introduced in the British Parliament by the then
,"Prime Minister, William Pitt."
,"3. At that time, the Civil Services of the company were"
,classified into covenanted civil services (higher civil
,services) and uncovenanted civil services (lower civil
,      services). The former was created by a law of the
,"Company, while the later was created otherwise."
,"4.   Subhash C. Kashyap, Our Constitution, National Book"
,"Trust, Third Edition, 2001, P. 14."
,5.   The system of Budget was introduced in British India in
,1860
,"6.   V. N. Shukla, The Constitution of India, Eastern Book"
,"Company, Tenth Edition, 2001, P. A-10."
,7.   The declaration thus stated: ‘The policy of His Majesty’s
,Government is that of the increasing association of
,"Indians in every branch of the administration, and the"
,"gradual development of self-government institutions,"
,with a view to the progressive realisation of responsible
,government in India as an integral part of the British
,Empire’.
,8.   This was done on the recommendation of the Lee
,Commission on Superior Civil Services in India (1923-
,24).
,9.   The Indian Independence Bill was introduced in the
,"British Parliament on July 4, 1947 and received the"
,"Royal Assent on July 18, 1947. The act came into force"
,"on August 15, 1947."
,10.    The boundaries between the two Dominions were
,determined by a Boundary Commission headed by
,Radcliff. Pakistan included the provinces of West
,"Punjab, Sind, Baluchistan, East Bengal, North-Western"
,Frontier Province and the district of sylhet in Assam.
,The referendum in the North-Western Frontier Province
,and Sylhet was in favour of Pakistan.
, 2     Making of the Constitution
,
,
,DEMAND FOR A CONSTITUENT ASSEMBLY
,It was in 1934 that the idea of a Constituent Assembly for India
,"was put forward for the first time by M.N. Roy, a pioneer of"
,"communist movement in India. In 1935, the Indian National"
,"Congress (INC), for the first time, officially demanded a"
,"Constituent Assembly to frame the Constitution of India. In 1938,"
,"Jawaharlal Nehru, on behalf the INC declared that ‘the"
,"Constitution of free India must be framed, without outside"
,"interference, by a Constituent Assembly elected on the basis of"
,adult franchise’.
,The demand was finally accepted in principle by the British
,Government in what is known as the ‘August Offer’ of 1940. In
,"1942, Sir Stafford Cripps, a Member of the Cabinet, came to India"
,with a draft proposal of the British Government on the framing of
,an independent Constitution to be adopted after the World War II.
,"The Cripps Proposals were rejected by the Muslim League, which"
,wanted India to be divided into two autonomous states with two
,"separate Constituent Assemblies. Finally, a Cabinet Mission1 was"
,sent to India. While it rejected the idea of two Constituent
,"Assemblies, it put forth a scheme for the Constituent Assembly"
,which more or less satisfied the Muslim League.
, COMPOSITION OF THE CONSTITUENT ASSEMBLY
,
,The Constituent Assembly was constituted in November 1946
,under the scheme formulated by the Cabinet Mission Plan.
,The features of the scheme were:
,1. The total strength of the Constituent Assembly was to be
,"389. Of these, 296 seats were to be allotted to British India"
,and 93 seats to the princely states. Out of 296 seats allotted
,"to the British India, 292 members were to be drawn from the"
,eleven governors’ provinces2 and four from the four Chief
,"Commissioners’ provinces3 , one from each."
,2. Each province and princely state (or group of states in case
,of small states) were to be allotted seats in proportion to
,"their respective population. Roughly, one seat was to be"
,allotted for every million population.
,3. Seats allocated to each British province were to be divided
,"among the three principal communities–Muslims, Sikhs and"
,"General (all except Muslims and Sikhs), in proportion to their"
,population.
,4. The representatives of each community were to be elected
,by members of that community in the provincial legislative
,assembly and voting was to be by the method of
,proportional representation by means of single transferable
,vote.
,5. The representatives of the princely states were to be
,nominated by the heads of the princely states.
,"It is, thus, clear that the Constituent Assembly was to be a"
,"partly elected and partly nominated body. Moreover, the members"
,were to be indirectly elected by the members of the provincial
,"assemblies, who themselves were elected on a limited franchise4 ."
,The elections to the Constituent Assembly (for 296 seats
,allotted to the British Indian Provinces) were held in July-August
,"1946. The Indian National Congress won 208 seats, the Muslim"
,League 73 seats and the small groups and independents got the
,"remaining 15 seats. However, the 93 seats allotted to the princely"
,states were not filled as they decided to stay away from the
,Constituent Assembly.
,   Although the Constituent Assembly was not directly elected by
,"the people of India on the basis of adult franchise, the Assembly"
,comprised representatives of all sections of the Indian society–
,"Hindus, Muslims, Sikhs, Parsis, Anglo-Indians, Indian Christians,"
,"SCs, STs including women of all these sections. The Assembly"
,"included all important personalities of India at that time, with the"
,exception of Mahatma Gandhi.
, WORKING OF THE CONSTITUENT ASSEMBLY
,
,"The Constituent Assembly held its first meeting on December 9,"
,1946. The Muslim League boycotted the meeting and insisted on
,"a separate state of Pakistan. The meeting was, thus, attended by"
,"only 211 members. Dr. Sachchidananda Sinha, the oldest"
,"member, was elected as the temporary President of the Assembly,"
,following the French practice.
,"Later, Dr. Rajendra Prasad was elected as the President of the"
,"Assembly. Similarly, both H.C. Mukherjee and V.T. Krishnamachari"
,were elected as the Vice-Presidents of the Assembly. In other
,"words, the Assembly had two Vice-Presidents."
,
,Objectives Resolution
,"On December 13, 1946, Jawaharlal Nehru moved the historic"
,‘Objectives Resolution’ in the Assembly. It laid down the
,fundamentals and philosophy of the constitutional structure. It
,read:
,1. “This Constituent Assembly declares its firm and solemn
,resolve to proclaim India as an Independent Sovereign
,Republic and to draw up for her future governance a
,Constitution:
,"2. Wherein the territories that now comprise British India, the"
,territories that now form the Indian States and such other
,parts of India as are outside India and the States as well as
,other territories as are willing to be constituted into the
,"independent sovereign India, shall be a Union of them all;"
,and
,"3. wherein the said territories, whether with their present"
,boundaries or with such others as may be determined by the
,Constituent Assembly and thereafter according to the law of
,"the Constitution, shall possess and retain the status of"
,autonomous units together with residuary powers and
,exercise all powers and functions of Government and
,administration save and except such powers and functions
,as are vested in or assigned to the Union or as are inherent
,or implied in the Union or resulting therefrom; and
,   4. wherein all power and authority of the sovereign
,"independent India, its constituent parts and organs of"
,Government are derived from the people; and
,5. wherein shall be guaranteed and secured to all the people of
,"India justice, social, economic and political; equality of status"
,"of opportunity, and before the law; freedom of thought,"
,"expression, belief, faith, worship, vocation, association and"
,"action, subject to law and public morality; and"
,6. wherein adequate safeguards shall be provided for
,"minorities, backward and tribal areas, and depressed and"
,other backward classes; and
,7. whereby shall be maintained the integrity of the territory of
,"the Republic and its sovereign rights on land, sea and air"
,according to justice and the law of civilized nations; and
,8. This ancient land attains its rightful and honoured place in
,the world and makes its full and willing contribution to the
,promotion of world peace and the welfare of mankind.”
,This Resolution was unanimously adopted by the Assembly on
,"January 22, 1947. It influenced the eventual shaping of the"
,constitution through all its subsequent stages. Its modified version
,forms the Preamble of the present Constitution.
,
,Changes by the Independence Act
,"The representatives of the princely states, who had stayed away"
,"from the Constituent Assembly, gradually joined it. On April 28,"
,"1947, representatives of the six states5 were part of the Assembly."
,"After the acceptance of the Mountbatten Plan of June 3, 1947, for"
,"the partition of the country, the representatives of most of the"
,other princely states took their seats in the Assembly. The
,members of the Muslim League from the Indian Dominion also
,entered the Assembly.
,The Indian Independence Act of 1947 made the following three
,changes in the position of the Assembly:
,"1. The Assembly was made a fully sovereign body, which could"
,frame any Constitution it pleased. The act empowered the
,Assembly to abrogate or alter any law made by the British
,Parliament in relation to India.
,  2. The Assembly also became a legislative body. In other
,"words, two separate functions were assigned to the"
,"Assembly, that is, making of the Constitution for free India"
,and enacting of ordinary laws for the country. These two
,"tasks were to be performed on separate days. Thus, the"
,Assembly became the first Parliament of free India
,(Dominion Legislature). Whenever the Assembly met as the
,Constituent body it was chaired by Dr. Rajendra Prasad and
,"when it met as the legislative body6 , it was chaired by G.V."
,"Mavlankar. These two functions continued till November 26,"
,"1949, when the task of making the Constitution was over."
,3. The Muslim League members (hailing from the areas7
,included in the Pakistan) withdrew from the Constituent
,"Assembly for India. Consequently, the total strength of the"
,Assembly came down to 299 as against 389 originally fixed
,in 1946 under the Cabinet Mission Plan. The strength of the
,Indian provinces (formerly British Provinces) was reduced
,from 296 to 229 and those of the princely states from 93 to
,70. The state-wise membership of the Assembly as on
,"December 31, 1947, is shown in Table 2.4 of this chapter."
,
,Other Functions Performed
,In addition to the making of the Constitution and enacting of
,"ordinary laws, the Constituent Assembly also performed the"
,following functions:
,1. It ratified the India’s membership of the Commonwealth in
,May 1949.
,"2. It adopted the national flag on July 22, 1947."
,"3. It adopted the national anthem on January 24, 1950."
,"4. It adopted the national song on January 24, 1950."
,5. It elected Dr. Rajendra Prasad as the first President of India
,"on January 24, 1950."
,"In all, the Constituent Assembly had 11 sessions over two"
,"years, 11 months and 18 days. The Constitution-makers had gone"
,"through the Constitutions of about 60 countries, and the Draft"
,Constitution was considered for 114 days. The total expenditure
,incurred on making the Constitution amounted to ₹64 lakh.
,"  On January 24, 1950, the Constituent Assembly held its final"
,"session. It, however, did not end, and continued as the provisional"
,"parliament of India from January 26, 1950, till the formation of new"
,Parliament8 after the first general elections in 1951–52.
, COMMITTEES OF THE CONSTITUENT ASSEMBLY
,
,The Constituent Assembly appointed a number of committees to
,"deal with different tasks of constitution-making. Out of these, eight"
,were major committees and the others were minor committees.
,The names of these committees and their Chairman are given
,below:
,
,Major Committees
,1. Union Powers Committee - Jawaharlal Nehru
,2. Union Constitution Committee -Jawaharlal Nehru
,3. Provincial Constitution Committee -Sardar Patel
,4. Drafting Committee - Dr. B.R. Ambedkar
,"5. Advisory Committee on Fundamental Rights, Minorities and"
,Tribal and Excluded Areas - Sardar Patel. This committee
,had the following five sub-committees:
,(a) Fundamental Rights Sub-Committee - J.B. Kripalani
,(b) Minorities Sub-Committee - H.C. Mukherjee
,(c) North-East Frontier Tribal Areas and Assam Excluded &
,Partially Excluded Areas Sub-Committee -Gopinath
,Bardoloi
,(d) Excluded and Partially Excluded Areas (other than those
,in Assam) Sub-Committee - A.V. Thakkar
,(e) North-West Frontier Tribal Areas Sub-Committee8a
,6. Rules of Procedure Committee - Dr. Rajendra Prasad
,7. States Committee (Committee for Negotiating with States) -
,Jawaharlal Nehru
,8. Steering Committee - Dr. Rajendra Prasad
,
,Minor Committees
,1.   Finance and Staff Committee - Dr. Rajendra Prasad
,2.   Credentials Committee - Alladi Krishnaswami Ayyar
,3.   House Committee - B. Pattabhi Sitaramayya
,4.   Order of Business Committee - Dr. K.M. Munshi
,5.   Ad-hoc Committee on the National Flag - Dr. Rajendra
,Prasad
,  6. Committee on the Functions of the Constituent Assembly -
,G.V. Mavalankar
,7. Ad-hoc Committee on the Supreme Court - S. Varadachari
,(Not an Assembly Member)
,8. Committee on Chief Commissioners’ Provinces - B. Pattabhi
,Sitaramayya
,9. Expert Committee on the Financial Provisions of the Union
,Constitution -Nalini Ranjan Sarkar (Not an Assembly
,Member)
,10. Linguistic Provinces Commission - S.K. Dar (Not an
,Assembly Member)
,11. Special Committee to Examine the Draft Constitution -
,Jawaharlal Nehru
,12. Press Gallery Committee - Usha Nath Sen
,13. Ad-hoc Committee on Citizenship - S. Varadachari (Not an
,Assembly Member)
,
,Drafting Committee
,"Among all the committees of the Constituent Assembly, the most"
,important committee was the Drafting Committee set up on
,"August 29, 1947. It was this committee that was entrusted with the"
,task of preparing a draft of the new Constitution. It consisted of
,seven members. They were:
,1. Dr. B.R. Ambedkar (Chairman)
,2. N. Gopalaswamy Ayyangar
,3. Alladi Krishnaswamy Ayyar
,4. Dr. K.M. Munshi
,5. Syed Mohammad Saadullah
,6. N. Madhava Rau (He replaced B.L. Mitter who resigned due
,to ill-health)
,7. T.T. Krishnamachari (He replaced D.P. Khaitan who died in
,1948)
,"The Drafting Committee, after taking into consideration the"
,"proposals of the various committees, prepared the first draft of the"
,"Constitution of India, which was published in February, 1948. The"
,people of India were given eight months to discuss the draft and
,"propose amendments. In the light of the public comments,"
,"criticisms and suggestions, the Drafting Committee prepared a"
,"second draft, which was published in October, 1948."
,The Drafting Committee took less than six months to prepare
,its draft. In all it sat only for 141 days.
, ENACTMENT OF THE CONSTITUTION
,
,Dr. B.R. Ambedkar introduced the final draft of the Constitution in
,"the Assembly on November 4, 1948 (first reading). The Assembly"
,"had a general discussion on it for five days (till November 9,"
,1948).
,The second reading (clause by clause consideration) started on
,"November 15, 1948, and ended on October 17, 1949. During this"
,"stage, as many as 7653 amendments were proposed and 2473"
,were actually discussed in the Assembly.
,"The third reading of the draft started on November 14, 1949."
,Dr. B.R. Ambedkar moved a motion–‘the Constitution as settled by
,the Assembly be passed’. The motion on Draft Constitution was
,"declared as passed on November 26, 1949, and received the"
,signatures of the members and the president. Out of a total 299
,"members of the Assembly, only 284 were actually present on that"
,day and signed the Constitution. This is also the date mentioned
,in the Preamble as the date on which the people of India in the
,"Constituent Assembly adopted, enacted and gave to themselves"
,this Constitution.
,"The Constitution as adopted on November 26, 1949,"
,"contained a Preamble, 395 Articles and 8 Schedules. The"
,Preamble was enacted after the entire Constitution was already
,enacted.
,"Dr. B.R. Ambedkar, the then Law Minister, piloted the Draft"
,Constitution in the Assembly. He took a very prominent part in the
,"deliberations of the Assembly. He was known for his logical,"
,forceful and persuasive arguments on the floor of the Assembly.
,He is recognised as the ‘Father of the Constitution of India’. This
,"brilliant writer, constitutional expert, undisputed leader of the"
,Scheduled Castes and the ‘chief architect of the Constitution of
,India’ is also known as a ‘Modern Manu’.
, ENFORCEMENT OF THE CONSTITUTION
,
,"Some provisions of the Constitution pertaining to citizenship,"
,"elections, provisional parliament, temporary and transitional"
,"provisions, and short title contained in Articles 5, 6, 7, 8, 9, 60,"
,"324, 366, 367, 379, 380, 388, 391, 392 and 393 came into force"
,"on November 26, 1949, itself."
,The remaining provisions (the major part) of the Constitution
,"came into force on January 26, 1950. This day is referred to in the"
,"Constitution as the ‘date of its commencement’, and celebrated as"
,the Republic Day.
,January 26 was specifically chosen as the ‘date of
,commencement’ of the Constitution because of its historical
,importance. It was on this day in 1930 that Purna Swaraj day was
,"celebrated, following the resolution of the Lahore Session"
,(December 1929) of the INC.
,"With the commencement of the Constitution, the Indian"
,Independence Act of 1947 and the Government of India Act of
,"1935, with all enactments amending or supplementing the latter"
,"Act, were repealed. The Abolition of Privy Council Jurisdiction Act"
,(1949) was however continued.
, EXPERTS COMMITTEE OF THE CONGRESS
,
,"While elections to the Constituent Assembly were still in progress,"
,"on July 8, 1946, the Congress Party (Indian National Congress)"
,appointed an Experts Committee for the purpose of preparing
,material for the Constituent Assembly. This committee consisted
,of the following members8b :
,1. Jawaharlal Nehru (Chairman)
,2. M. Asaf Ali
,3. K.M. Munshi
,4. N. Gopalaswami Ayyangar
,5. K.T. Shah
,6. D.R. Gadgil
,7. Humayun Kabir
,8. K. Santhanam
,"Later, on the Chairman’s proposal, it was resolved that Krishna"
,Kripalani be co-opted as member and convener of the committee.
,"The committee had two sittings, the first at New Delhi from July"
,"20 to 22, 1946, and the second at Bombay from August 15 to 17,"
,1946
,"Apart from a number of notes prepared by its members, the"
,committee discussed the procedure to be adopted by the
,"Constituent Assembly, the question of the appointment of various"
,committees and the draft of a resolution on the objectives of the
,constitution to be moved during the first session of the Constituent
,Assembly8c .
,On the role played by this committee in the making of the
,"Constitution, Granville Austin, a British constitutional expert,"
,observed: “It was the Congress Experts Committee that set India
,"on the road to her present Constitution. The committee members,"
,"working within the framework of the Cabinet Mission Scheme,"
,"made general suggestions about autonomous areas, the powers"
,"of provincial Governments and the Centre, and about such issues"
,as the princely states and the amending power. They also drafted
,"a resolution, closely resembling the Objectives Resolution”.8d"
, CRITICISM OF THE CONSTITUENT ASSEMBLY
,
,The critics have criticised the Constituent Assembly on various
,grounds. These are as follows:
,1. Not a Representative Body: The critics have argued that the
,Constituent Assembly was not a representative body as its
,members were not directly elected by the people of India on
,the basis of universal adult franchise.
,2. Not a Sovereign Body: The critics maintained that the
,Constituent Assembly was not a sovereign body as it was
,"created by the proposals of the British Government. Further,"
,they said that the Assembly held its sessions with the
,permission of the British Government.
,"3. Time Consuming: According to the critics, the Constituent"
,Assembly took unduly long time to make the Constitution.
,They stated that the framers of the American Constitution
,took only four months to complete their work8e. In this
,"context, Naziruddin Ahmed, a member of the Constituent"
,"Assembly, coined a new name for the Drafting Committee to"
,show his contempt for it. He called it a “Drifting
,Committee”.
,4. Dominated by Congress: The critics charged that the
,Constituent Assembly was dominated by the Congress
,"party. Granville Austin, an American Constitutional expert,"
,remarked: ‘The Constituent Assembly was a one-party body
,in an essentially one-party country. The Assembly was the
,Congress and the Congress was India’9 .
,5. Lawyer-Politician Domination: It is also maintained by the
,critics that the Constituent Assembly was dominated by
,lawyers and politicians. They pointed out that other sections
,"of the society were not sufficiently represented. This, to"
,"them, is the main reason for the bulkiness and complicated"
,language of the Constitution.
,"6. Dominated by Hindus: According to some critics, the"
,Constituent Assembly was a Hindu dominated body. Lord
,"Viscount Simon called it ‘a body of Hindus’. Similarly,"
,Winston Churchill commented that the Constituent Assembly
,represented ‘only one major community in India’.
,IMPORTANT FACTS
,
,1. Elephant was adopted as the symbol (seal) of the
,Constituent Assembly.
,2. Sir B.N. Rau was appointed as the constitutional advisor
,(Legal advisor) to the Constituent Assembly.
,3. H.V.R. Iyengar was the Secretary to the Constituent
,Assembly.
,4. S.N. Mukerjee was the chief draftsman of the constitution in
,the Constituent Assembly.
,5. Prem Behari Narain Raizada was the calligrapher of the
,Indian Constitution. The original constitution was handwritten
,by him in a flowing italic style.
,6. The original version was beautified and decorated by artists
,from Shantiniketan including Nand Lal Bose and Beohar
,Rammanohar Sinha.
,"7. Beohar Rammanohar Sinha illuminated, beautified and"
,ornamented the original Preamble calligraphed by Prem
,Behari Narain Raizada.
,8. The calligraphy of the Hindi version of the original
,constitution was done by Vasant Krishan Vaidya and
,elegantly decorated and illuminated by Nand Lal Bose.
, HINDI TEXT OF THE CONSTITUTION
,
,"Originally, the Constitution of India did not make any provision with"
,respect to an authoritative text of the Constitution in the Hindi
,"language. Later, a provision in this regard was made by the 58th"
,Constitutional Amendment Act of 19878f. This amendment
,"inserted a new Article 394-A in the last part of the Constitution i.e.,"
,Part XXII8g. This article contains the following provisions:
,1. The President shall cause to be published under his
,authority:
,(i) The translation of the Constitution in Hindi language. The
,modifications which are necessary to bring it in
,"conformity with the language, style and terminology"
,adopted in the authoritative texts of the Central Acts in
,Hindi can be made in it. All the amendments of the
,Constitution made before such publication should be
,incorporated in it.
,(ii) The translation in Hindi of every amendment of the
,constitution made in English.
,2. The translation of the Constitution and its every amendment
,published shall be construed to have the same meaning as
,the original text in English. If any difficulty arises in this
,"matter, the President shall cause the Hindi text to be revised"
,suitably.
,3. The translation of the Constitution and its every amendment
,"published shall be deemed to be, for all purposes, its"
,authoritative text in Hindi.
,
,Table 2.1 Allocation of seats in the Constituent Assembly of India
,(1946)
,Sl.No. Areas                                                 Seats
,1.   British Indian Provinces (11)                          292
,2.   Princely States (Indian States)                         93
,3.   Chief Commissioners’ Provinces (4)                       4
,Total                                                  389
,Table 2.2 Results of the Elections to the Constituent Assembly
,(July–August 1946)
,Sl.No. Name of the Party                                Seats
,won
,1.    Congress                                          208
,2.    Muslim League                                      73
,3.    Unionist Party                                      1
,4.    Unionist Muslims                                    1
,5.    Unionist Scheduled Castes                           1
,6.    Krishak - Praja Party                               1
,7.    Scheduled Castes Federation                         1
,8.    Sikhs (Non-Congress)                                1
,9.    Communist Party                                     1
,10.   Independents                                        8
,Total                                             296
,
,Table 2.3 Community-wise Representation in the Constituent
,Assembly (1946)
,Sl.No. Community                                       Strength
,1.    Hindus                                           163
,2.    Muslims                                            80
,3.    Scheduled Castes                                   31
,4.    Indian Christians                                   6
,5.    Backward Tribes                                     6
,6.    Sikhs                                               4
,7.    Anglo-Indians                                       3
,8.    Parsees                                             3
,Total                                            296
,Table 2.4 State-wise Membership of the Constituent Assembly of
,"India as on December 31, 1947"
,Sl.No.   Name                               No. of Members
,A. Provinces (Indian Provinces)–229
,1.     Madras                                    49
,2.     Bombay                                    21
,3.     West Bengal                               19
,4.     United Provinces                          55
,5.     East Punjab                               12
,6.     Bihar                                     36
,7.     C.P. and Berar                            17
,8.     Assam                                      8
,9.     Orissa                                     9
,10.     Delhi                                      1
,11.     Ajmer-Merwara                              1
,12.     Coorg                                      1
,B. Indian States (Princely States)–70
,1.     Alwar                                      1
,2.     Baroda                                     3
,3.     Bhopal                                     1
,4.     Bikaner                                    1
,5.     Cochin                                     1
,6.     Gwalior                                    4
,7.     Indore                                     1
,8.     Jaipur                                     3
,9.     Jodhpur                                    2
,10.     Kolhapur                                   1
,11.     Kotah                                      1
,12.     Mayurbhanj                                 1
,   13.     Mysore                                     7
,14.     Patiala                                    2
,15.     Rewa                                       2
,16.     Travancore                                 6
,17.     Udaipur                                    2
,18.     Sikkim and Cooch Behar Group               1
,"19.     Tripura, Manipur and Khasi States          1"
,Group
,20.     U.P. States Group                          1
,21.     Eastern Rajputana States Group             3
,22.     Central India States Group                 3
,(including Bundelkhand and Malwa)
,23.     Western India States Group                 4
,24.     Gujarat States Group                       2
,25.     Deccan and Madras States Group             2
,26.     Punjab States Group                        3
,27.     Eastern States Group I                     4
,28.     Eastern States Group II                    3
,29.     Residuary States Group                     4
,Total                                    299
,
,Table 2.5 Sessions of the Constituent Assembly at a Glance
,Sessions             Period
,"First Session        December 9–23, 1946"
,"Second Session January 20–25, 1947"
,"Third Session        April 28-May 2, 1947"
,"Fourth Session       July 14–31, 1947"
,"Fifth Session        August 14–30, 1947"
,"Sixth Session        January 27, 1948"
,"Seventh Session November 4, 1948-January 8, 1949"
,"Eighth Session    May 16-June 16, 1949"
,"Ninth Session     July 30-September 18, 1949"
,"Tenth Session     October 6–17, 1949"
,"Eleventh          November 14–26, 1949"
,Session
,"Note: The Assembly met once again on January 24, 1950, when"
,the members appended their signatures to the Constitution of
,India.
,
,Table 2.6 Time Taken by the Framers of Other Constitutions8h
,Sl.    Country No. of Working Period             Time Taken
,No.            Articles
,"1      U.S.A.    7          May 25, 1787 to      Less than 4"
,"September 17,        months"
,1787
,"2      Canada    147        October 10, 1864 to About 2 years"
,March 1867          and 6 months
,3      Australia 128        March 1891 to July About 9 years
,"9, 1900"
,4      South     153        October 1908 to      1 year
,"Africa               September 20,"
,1909
,
,"Table 2.7 Articles Related to Short Title, Commencement, Hindi"
,Text and Repeals at a Glance
,Article No.       Subject Matter
,393               Short title
,394               Commencement
,394A              Authoritative text in the hindi language
,395               Repeals
,NOTES AND REFERENCES
,1. The Cabinet Mission consisting of three members (Lord
,"Pethick Lawrence, Sir Stafford Cripps and A.V."
,"Alexander) arrived in India on March 24, 1946. The"
,"Cabinet Mission published its plan on May 16, 1946."
,"2. These include Madras, Bombay, UP, Bihar, Central"
,"Provinces, Orissa, Punjab, NWFP, Sindh, Bengal and"
,Assam.
,"3. These include Delhi, Ajmer-Merwara, Coorg and British"
,Baluchistan.
,4. The Government of India Act of 1935 granted limited
,"franchise on the basis of tax, property and education."
,"5. These include Baroda, Bikaner, Jaipur, Patiala, Rewa"
,and Udaipur.
,"6. For the first time, the Constituent Assembly met as"
,"Dominion Legislature on November 17, 1947 and"
,elected G.V. Mavlankar as its speaker.
,"7. These are West Punjab, East Bengal, NWFP, Sindh,"
,Baluchistan and Sylhet District of Assam. A separate
,Constituent Assembly was set up for Pakistan.
,"8. The Provisional Parliament ceased to exist on April 17,"
,1952. The first elected Parliament with the two Houses
,came into being in May 1952.
,8a. One of the political consequences of the British
,"Government’s statement of June 3, 1947, was that"
,"following a referendum, the North-West Frontier"
,Province and Baluchistan became part of the territory of
,the Dominion of Pakistan and as a result the tribal areas
,in this region became a concern of that Dominion. The
,Sub-Committee on the Tribal Areas in the North-West
,Frontier Province and Baluchistan was not therefore
,called upon to function on behalf of the Constituent
,"Assembly of India. (B. Shiva Rao, The Framing of"
,"India’s Constitution : Select Documents, Volume III,"
,P.681.)
,The members of this Sub-Committee were : Khan
,"Abdul Ghaffar Khan, Khan Abdul Samad Khan and"
,    Mehr Chand Khanna. The information about the
,Chairman is not found.
,"8b. B. Shiva Rao, The Framing of India’s Constitution,"
,"Select Documents, Volume 1, p.326."
,8c. Ibid.
,"8d. Granville Austin, The Indian Constitution - Cornerstone"
,"of a Nation, Oxford, 1966, pp. 32–33."
,8e. See Table 2.6 at the end of this chapter.
,"8f. The 56th Constitutional Amendment Bill of 1987, after"
,being passed by both the Houses of Parliament and
,"assented by the President, finally emerged as the 58th"
,Constitutional Amendment Act of 1987.
,"8g. Part XXII is entitled as ‘Short Title, Commencement,"
,"Authoritative Text in Hindi and Repeals’. Originally, this"
,part consisted of three Articles only - Article 393 (short
,"title), Article 394 (commencement) and Article 395"
,(repeals).
,"8h. J.R. Siwach, Dynamics of Indian Government and"
,"Politics, Sterling Publishers Private Limited, Second"
,"Edition, 1990, p.10."
,"9. Granville Austin, The Indian Constitution–Cornerstone"
,"of a Nation, Oxford, 1966, P. 8."
, 3      Salient Features of the Constitution
,
,
,
,
,T
,he Indian Constitution is unique in its contents and spirit.
,Though borrowed from almost every Constitution of the
,"world, the Constitution of India has several salient features"
,that distinguish it from the Constitutions of the other countries.
,It should be noted at the outset that a number of original
,features of the Constitution (as adopted in 1949) have undergone
,"a substantial change, on account of several amendments,"
,"particularly 7th, 42nd, 44th, 73rd, 74th, 97th and 101st"
,"Amendments. In fact, the 42nd Amendment Act (1976) is known"
,as ‘Mini-Constitution’ due to the important and large number of
,"changes made by it in various parts of the Constitution. However,"
,"in the Kesavananda Bharati case1 (1973), the Supreme Court"
,ruled that the constituent power of Parliament under Article 368
,does not enable it to alter the ‘basic structure’ of the Constitution.
, SALIENT FEATURES OF THE CONSTITUTION
,
,"The salient features of the Constitution, as it stands today, are as"
,follows:
,
,1. Lengthiest Written Constitution
,"Constitutions are classified into written, like the American"
,"Constitution, or unwritten, like the British Constitution. The"
,Constitution of India is the lengthiest of all the written
,"Constitutions of the world. It is a very comprehensive, elaborate"
,and detailed document.
,"Originally (1949), the Constitution contained a Preamble, 395"
,"Articles (divided into 22 Parts) and 8 Schedules. Presently (2019),"
,"it consists of a Preamble, about 470 Articles (divided into 25"
,Parts) and 12 Schedules2. The various amendments carried out
,since 1951 have deleted about 20 Articles and one Part (VII) and
,"added about 95 Articles, four Parts (IVA, IXA, IXB and XIVA) and"
,"four Schedules (9, 10, 11 and 12). No other Constitution in the"
,world has so many Articles and Schedules3 .
,Four factors have contributed to the elephantine size of our
,Constitution. They are:
,"(a) Geographical factors, that is, the vastness of the country and"
,its diversity.
,"(b) Historical factors, e.g., the influence of the Government of"
,"India Act of 1935, which was bulky."
,(c) Single Constitution for both the Centre and the states4 .
,(d) Dominance of legal luminaries in the Constituent Assembly.
,The Constitution contains not only the fundamental principles of
,"governance, but also detailed administrative provisions. Further,"
,those matters which in other modern democratic countries have
,been left to the ordinary legislation or established political
,conventions have also been included in the constitutional
,document itself in India.
,
,2. Drawn From Various Sources
,The Constitution of India has borrowed most of its provisions from
,the Constitutions of various other countries as well as from the
,Government of India Act5 of 1935. Dr. B.R. Ambedkar proudly
,acclaimed that the Constitution of India has been framed after
,‘ransacking all the known Constitutions of the World6 ’.
,"The structural part of the Constitution is, to a large extent,"
,derived from the Government of India Act of 1935. The
,philosophical part of the Constitution (the Fundamental Rights and
,the Directive Principles of State Policy) derive their inspiration
,"from the American and Irish Constitutions, respectively. The"
,political part of the Constitution (the principle of Cabinet
,Government and the relations between the Executive and the
,Legislature) have been largely drawn from the British Constitution7
,.
,The other provisions of the Constitution have been drawn from
,"the Constitutions of Canada, Australia, Germany, USSR (now"
,"Russia), France, South Africa, Japan and so on8 ."
,The most profound influence and material source of the
,"Constitution is the Government of India Act, 1935. The Federal"
,"Scheme, Judiciary, Governors, Emergency Powers, the Public"
,Service Commissions and most of the administrative details are
,drawn from this Act. More than half of the provisions of
,Constitution are identical to or bear a close resemblance to the
,Act of 19359 .
,
,3. Blend of Rigidity and Flexibility
,Constitutions are also classified into rigid and flexible. A rigid
,Constitution is one that requires a special procedure for its
,"amendment, as for example, the American Constitution. A flexible"
,"constitution, on the other hand, is one that can be amended in the"
,"same manner as the ordinary laws are made, as for example, the"
,British Constitution.
,"The Constitution of India is neither rigid nor flexible, but a"
,synthesis of both. Article 368 provides for two types of
,amendments:
,(a) Some provisions can be amended by a special majority of
,"the Parliament, i.e., a two-third majority of the members of"
,"     each House present and voting, and a majority of the total"
,membership of each House.
,(b) Some other provisions can be amended by a special majority
,of the Parliament and with the ratification by half of the total
,states.
,"At the same time, some provisions of the Constitution can be"
,amended by a simple majority of the Parliament in the manner of
,"ordinary legislative process. Notably, these amendments do not"
,come under Article 368.
,
,4. Federal System with Unitary Bias
,The Constitution of India establishes a federal system of
,"Government. It contains all the usual features of a federation, viz.,"
,"two Government, division of powers, written Constitution,"
,"supremacy of Constitution, rigidity of Constitution, independent"
,judiciary and bicameralism.
,"However, the Indian Constitution also contains a large number"
,"of unitary or non-federal features, viz., a strong Centre, single"
,"Constitution, single citizenship, flexibility of Constitution,"
,"integrated judiciary, appointment of state governor by the Centre,"
,"all-India services, emergency provisions and so on."
,"Moreover, the term ‘Federation’ has nowhere been used in the"
,"Constitution. Article 1, on the other hand, describes India as a"
,"‘Union of States’ which implies two things: one, Indian Federation"
,"is not the result of an agreement by the states; and two, no state"
,has the right to secede from the federation.
,"Hence, the Indian Constitution has been variously described as"
,"‘federal in form but, unitary in spirit’, ‘quasi-federal’ by K.C."
,"Wheare, ‘bargaining federalism’ by Morris Jones, ‘co-operative"
,federalism’ by Granville
,"Austin, ‘federation with a centralising tendency’ by Ivor"
,Jennings and so on.
,
,5. Parliamentary Form of Government
,The Constitution of India has opted for the British Parliamentary
,System of Government rather than American Presidential System
,of Government. The parliamentary system is based on the
,principle of co-operation and co-ordination between the legislative
,and executive organs while the presidential system is based on
,the doctrine of separation of powers between the two organs.
,The parliamentary system is also known as the ‘Westminster’10
,"Model of Government, responsible Government and Cabinet"
,Government. The Constitution establishes the parliamentary
,"system not only at the Centre, but also in the states."
,The features of parliamentary government in India are:
,(a) Presence of nominal and real executives;
,"(b) Majority party rule,"
,"(c) Collective responsibility of the executive to the legislature,"
,"(d) Membership of the ministers in the legislature,"
,"(e) Leadership of the Prime Minister or the Chief Minister,"
,(f) Dissolution of the lower House (Lok Sabha or Assembly).
,Even though the Indian parliamentary system is largely based
,"on the British pattern, there are some fundamental differences"
,"between the two. For example, the Indian Parliament is not a"
,"sovereign body like the British Parliament. Further, the Indian"
,State has an elected head (republic) while the British State has
,hereditary head (monarchy).
,"In a parliamentary system whether in India or Britain, the role of"
,the Prime Minister has become so significant and crucial that the
,political scientists like to call it a ‘Prime Ministerial Government’.
,
,6. Synthesis of Parliamentary Sovereignty and Judicial
,Supremacy
,The doctrine of sovereignty of Parliament is associated with the
,"British Parliament, while the principle of judicial supremacy with"
,that of the American Supreme Court.
,Just as the Indian parliamentary system differs from the British
,"system, the scope of judicial review power of the Supreme Court"
,in India is narrower than that of what exists in US. This is because
,the American Constitution provides for ‘due process of law’
,against that of ‘procedure established by law’ contained in the
,Indian Constitution (Article 21).
,"Therefore, the framers of the Indian Constitution have preferred"
,a proper synthesis between the British principle of parliamentary
,sovereignty and the American principle of judicial supremacy. The
,"Supreme Court, on the one hand, can declare the parliamentary"
,laws as unconstitutional through its power of judicial review. The
,"Parliament, on the other hand, can amend the major portion of the"
,Constitution through its constituent power.
,
,7. Integrated and Independent Judiciary
,The Indian Constitution establishes a judicial system that is
,integrated as well as independent.
,The Supreme Court stands at the top of the integrated judicial
,"system in the country. Below it, there are high courts at the state"
,"level. Under a high court, there is a hierarchy of subordinate"
,"courts, that is, district courts and other lower courts. This single"
,system of courts enforces both the central laws as well as the
,"state laws, unlike in USA, where the federal laws are enforced by"
,the federal judiciary and the state laws are enforced by the state
,judiciary.
,"The Supreme Court is a federal court, the highest court of"
,"appeal, the guarantor of the fundamental rights of the citizens and"
,"the guardian of the Constitution. Hence, the Constitution has"
,made various provisions to ensure its independence–security of
,"tenure of the judges, fixed service conditions for the judges, all the"
,expenses of the Supreme Court charged on the Consolidated
,"Fund of India, prohibition on discussion on the conduct of judges"
,"in the legislatures, ban on practice after retirement, power to"
,"punish for its contempt vested in the Supreme Court, separation"
,"of the judiciary from the executive, and so on."
,
,8. Fundamental Rights
,Part III of the Indian Constitution guarantees six11 fundamental
,rights to all the citizens:
,(a) Right to Equality (Articles 14–18);
,(b) Right to Freedom (Articles 19–22);
,(c) Right against Exploitation (Articles 23–24);
,(d) Right to Freedom of Religion (Articles 25–28);
,(e) Cultural and Educational Rights (Articles 29–30); and
,(f) Right to Constitutional Remedies (Article 32).
,   The Fundamental Rights are meant for promoting the idea of
,political democracy. They operate as limitations on the tyranny of
,the executive and arbitrary laws of the legislature. They are
,"justiciable in nature, that is, they are enforceable by the courts for"
,their violation. The aggrieved person can directly go to the
,"Supreme Court which can issue the writs of habeas corpus,"
,"mandamus, prohibition, certiorari and quo warranto for the"
,restoration of his rights.
,"However, the Fundamental Rights are not absolute and subject"
,"to reasonable restrictions. Further, they are not sacrosanct and"
,can be curtailed or repealed by the Parliament through a
,Constitutional Amendment Act. They can also be suspended
,during the operation of a National Emergency except the rights
,guaranteed by Articles 20 and 21.
,
,9. Directive Principles of State Policy
,"According to Dr. B.R. Ambedkar, the Directive Principles of State"
,Policy is a ‘novel feature’ of the Indian Constitution. They are
,enumerated in Part IV of the Constitution. They can be classified
,"into three broad cat-egories–socialistic, Gandhian and"
,liberalintellectual.
,The Directive Principles are meant for promoting the ideal of
,social and economic democracy. They seek to establish a ‘welfare
,"state’ in India. However, unlike the Fundamental Rights, the"
,"directives are non-justiciable in nature, that is, they are not"
,"enforceable by the courts for their violation. Yet, the Constitution"
,itself declares that ‘these principles are fundamental in the
,governance of the country and it shall be the duty of the state to
,"apply these principles in making laws’. Hence, they impose a"
,"moral obligation on the state authorities for their application. But,"
,"the real force (sanction) behind them is political, that is, public"
,opinion.
,"In the Minerva Mills case12 (1980), the Supreme Court held that"
,‘the Indian Constitution is founded on the bedrock of the balance
,between the Fundamental Rights and the Directive Principles’.
,
,10. Fundamental Duties
,The original constitution did not provide for the Fundamental
,Duties of the citizens. These were added during the operation of
,internal emergency (1975–77) by the 42nd Constitutional
,Amendment Act of 1976 on the recommendation of the Swaran
,Singh Committee. The 86th Constitutional Amendment Act of
,2002 added one more fundamental duty.
,The Part IV-A of the Constitution (which consists of only one
,"Article 51-A) specifies the eleven Fundamental Duties viz., to"
,"respect the Constitution, national flag and national anthem; to"
,"protect the sovereignty, unity and integrity of the country; to"
,promote the spirit of common brotherhood amongst all the people;
,to preserve the rich heritage of our composite culture and so on.
,The fundamental duties serve as a reminder to citizens that
,"while enjoying their rights, they have also to be quite conscious of"
,"duties they owe to their country, their society and to their fellow-"
,"citizens. However, like the Directive Principles, the duties are also"
,non-justiciable in nature.
,
,11. A Secular State
,"The Constitution of India stands for a Secular State. Hence, it"
,does not uphold any particular religion as the official religion of the
,Indian State. The following provisions of the Constitution reveal
,the secular character of the Indian State:
,(a) The term ‘secular’ was added to the Preamble of the Indian
,Constitution by the 42nd Constitutional Amendment Act of
,1976
,"(b) The Preamble secures to all citizens of India liberty of belief,"
,faith and worship.
,(c) The State shall not deny to any person equality before the
,law or equal protection of the laws (Article 14).
,(d) The State shall not discriminate against any citizen on the
,ground of religion (Article 15).
,(e) Equality of opportunity for all citizens in matters of public
,employment (Article 16).
,(f) All persons are equally entitled to freedom of conscience and
,"the right to freely profess, practice and propagate any religion"
,(Article 25).
,  (g) Every religious denomination or any of its section shall have
,the right to manage its religious affairs (Article 26).
,(h) No person shall be compelled to pay any taxes for the
,promotion of a particular religion (Article 27).
,(i) No religious instruction shall be provided in any educational
,institution maintained by the State (Article 28).
,(j) Any section of the citizens shall have the right to conserve its
,"distinct language, script or culture (Article 29)."
,(k) All minorities shall have the right to establish and administer
,educational institutions of their choice (Article 30).
,(l) The State shall endeavour to secure for all the citizens a
,Uniform Civil Code (Article 44).
,The Western concept of secularism connotes a complete
,separation between the religion (the church) and the state (the
,politics). This negative concept of secularism is inapplicable in the
,"Indian situation where the society is multireligious. Hence, the"
,"Indian Constitution embodies the positive concept of secularism,"
,"i.e., giving equal respect to all religions or protecting all religions"
,equally.
,"Moreover, the Constitution has also abolished the old system of"
,"communal repre-sentation13 , that is, reservation of seats in the"
,"legislatures on the basis of religion. However, it provides for the"
,temporary reservation of seats for the scheduled castes and
,scheduled tribes to ensure adequate representation to them.
,
,12. Universal Adult Franchise
,The Indian Constitution adopts universal adult franchise as a
,basis of elections to the Lok Sabha and the state legislative
,assemblies. Every citizen who is not less than 18 years of age has
,"a right to vote without any discrimination of caste, race, religion,"
,"sex, literacy, wealth and so on. The voting age was reduced to 18"
,years from 21 years in 1989 by the 61st Constitutional
,Amendment Act of 1988.
,The introduction of universal adult franchise by the
,Constitution-makers was a bold experiment and highly remarkable
,"in view of the vast size of the country, its huge population, high"
,"poverty, social inequality and overwhelming illiteracy.14"
,"   Universal adult franchise makes democracy broad-based,"
,"enhances the self-respect and prestige of the common people,"
,"upholds the principle of equality, enables minorities to protect their"
,interests and opens up new hopes and vistas for weaker sections.
,
,13. Single Citizenship
,Though the Indian Constitution is federal and envisages a dual
,"polity (Centre and states), it provides for only a single citizenship,"
,"that is, the Indian citizenship."
,"In countries like USA, on the other hand, each person is not"
,"only a citizen of USA, but also a citizen of the particular state to"
,"which he belongs. Thus, he owes allegiance to both and enjoys"
,dual sets of rights–one conferred by the National government and
,another by the state government.
,"In India, all citizens irrespective of the state in which they are"
,born or reside enjoy the same political and civil rights of
,citizenship all over the country and no discrimination is made
,between them.
,Despite the constitutional provision for a single citizenship and
,"uniform rights for all the people, India has been witnessing the"
,"communal riots, class conflicts, caste wars, linguistic clashes and"
,ethnic disputes. This means that the cherished goal of the
,Constitution-makers to build a united and integrated Indian nation
,has not been fully realised.
,
,14. Independent Bodies
,"The Indian Constitution not only provides for the legislative,"
,executive and judicial organs of the Government (Central and
,state) but also establishes certain independent bodies. They are
,envisaged by the Constitution as the bulkworks of the democratic
,system of Government in India. These are:
,(a) Election Commission to ensure free and fair elections to the
,"Parliament, the state legislatures, the office of President of"
,India and the office of Vice-president of India.
,(b) Comptroller and Auditor-General of India to audit the
,accounts of the Central and state governments. He acts as
,      the guardian of public purse and comments on the legality
,and propriety of Government expenditure.
,(c) Union Public Service Commission to conduct examinations
,for recruitment to all-India services15 and higher Central
,services and to advise the President on disciplinary matters.
,(d) State Public Service Commission in every state to conduct
,examinations for recruitment to state services and to advice
,the governor on disciplinary matters.
,The Constitution ensures the independence of these bodies
,"through various provisions like security of tenure, fixed service"
,"conditions, expenses being charged on the Consolidated Fund of"
,"India, and so on."
,
,15. Emergency Provisions
,The Indian Constitution contains elaborate emergency provisions
,to enable the President to meet any extraordinary situation
,effectively. The rationality behind the incorporation of these
,"provisions is to safeguard the sovereignty, unity, integrity and"
,"security of the country, the democratic political system and the"
,Constitution.
,"The Constitution envisages three types of emergencies,"
,namely:
,(a) National emergency on the ground of war or external
,aggression or armed rebellion16 (Article 352);
,(b) State emergency (President’s Rule) on the ground of failure
,of Constitutional machinery in the states (Article 356) or
,failure to comply with the directions of the Centre (Article
,365); and
,(c) Financial emergency on the ground of threat to the financial
,stability or credit of India (Article 360).
,"During an emergency, the Central Government becomes all-"
,powerful and the states go into the total control of the centre. It
,converts the federal structure into a unitary one without a formal
,amendment of the Constitution. This kind of transformation of the
,political system from federal (during normal times) to unitary
,(during emergency) is a unique feature of the Indian Constitution.
,16. Three-tier Government
,"Originally, the Indian Constitution, like any other federal"
,"Constitution, provided for a dual polity and contained provisions"
,with regard to the organisation and powers of the Centre and the
,"states. Later, the 73rd and 74th Constitutional Amendment Acts"
,"(1992) have added a third-tier of Government (i.e., local) which is"
,not found in any other Constitution of the world.
,The 73rd Amendment Act of 1992 gave constitutional
,recognition to the panchay-ats (rural local governments) by adding
,a new Part IX17 and a new Schedule 11 to the Constitution.
,"Similarly, the 74th Amendment Act of 1992 gave constitutional"
,recognition to the municipalities (urban local governments) by
,adding a new Part IX-A18 and a new Schedule 12 to the
,Constitution.
,
,17. Co-operative Societies
,The 97th Constitutional Amendment Act of 2011 gave a
,constitutional status and protection to co-operative societies. In
,"this context, it made the following three changes in the"
,Constitution:
,1. It made the right to form co-operative societies a
,fundamental right (Article 19).
,2. It included a new Directive Principle of State Policy on
,promotion of co-operative societies (Article 43-B).
,3. It added a new Part IX-B in the Constitution which is entitled
,as “The Co-operative Societies” (Articles 243-ZH to 243-ZT).
,The new Part IX-B contains various provisions to ensure that
,"the co-operative societies in the country function in a democratic,"
,"professional, autonomous and economically sound manner. It"
,empowers the Parliament in respect of multi-state cooperative
,societies and the state legislatures in respect of other co-operative
,societies to make the appropriate law.
, CRITICISM OF THE CONSTITUTION
,
,"The Constitution of India, as framed and adopted by the"
,"Constituent Assembly of India, has been criticized on the following"
,grounds:
,1. A Borrowed Constitution
,The critics opined that the Indian Constitution contains nothing
,new and original. They described it as a ‘borrowed Constitution’ or
,a ‘bag of borrowings’ or a ‘hotch-potch Constitution’ or a
,‘patchwork’ of several documents of the world constitutions.
,"However, this criticism is unfair and illogical. This is because, the"
,framers of the Constitution made necessary modifications in the
,features borrowed from other constitutions for their suitability to
,"the Indian conditions, at the same time avoiding their faults."
,While answering the above criticism in the Constituent
,"Assembly, Dr. B.R. Ambedkar, the Chairman of the Drafting"
,"Committee, said : “One likes to ask whether there can be anything"
,new in a Constitution framed at this hour in the history of the
,world. More than hundred years have rolled over when the first
,written Constitution was drafted. It has been followed by many
,countries reducing their constitutions to writing. What the scope of
,"a Constitution should be has long been settled. Similarly, what are"
,the fundamentals of a Constitution are recognized all over the
,"world. Given these facts, all Constitutions in their main provisions"
,"must look similar. The only new things, if there can be any, in a"
,Constitution framed so late in the day are the variations made to
,remove the faults and to accommodate it to the needs of the
,country. The charge of producing a blind copy of the Constitutions
,"of other countries is based, I am sure, on an inadequate study of"
,the Constitution”.19
,2. A Carbon Copy of the 1935 Act
,The critics said that the framers of the Constitution have included
,a large number of the provisions of the Government of India Act of
,"1935 into the Constitution of India. Hence, they called the"
,Constitution as a “Carbon Copy of the 1935 Act” or an “Amended
,"Version of the 1935 Act”. For example, N. Srinivasan observed"
,that the Indian Constitution is “both in language and substance a
,"close copy of the Act of 1935”. Similarly, Sir Ivor Jennings, a"
,"British Constitutionalist, said that “the Constitution derives directly"
,"from the Government of India Act of 1935 from which, in fact,"
,many of its provisions are copied almost textually”.
,"Further, P.R. Deshmukh, a member of the Constituent"
,"Assembly, commented that “the Constitution is essentially the"
,Government of India Act of 1935 with only adult franchise added”.
,The same Dr. B.R. Ambedkar answered the above criticism in
,the Constituent Assembly in the following way : “As to the
,accusation that the Draft Constitution has reproduced a good part
,"of the provisions of the Government of India Act, 1935, I make no"
,apologies. There is nothing to be ashamed of in borrowing. It
,involves no plagiarism. Nobody holds any patent rights in the
,fundamental ideas of a Constitution. What I am sorry about is that
,"the provisions taken from the Government of India Act, 1935,"
,relate mostly to the details of administration”.20
,3. Un-Indian or Anti-Indian
,"According to the critics, the Indian Constitution is ‘un-Indian’ or"
,‘anti-Indian’ because it does not reflect the political traditions and
,the spirit of India. They said that the foreign nature of the
,Constitution makes it unsuitable to the Indian situation or
,"unworkable in India. In this context, K. Hanumanthaiya, a member"
,"of the Constituent Assembly, commented : “We wanted the music"
,"of Veena or Sitar, but here we have the music of an English band."
,That was because our Constitution-makers were educated that
,"way”.21 Similarly, Lokanath Misra, another member of the"
,"Constituent Assembly, criticized the Constitution as a “slavish"
,"imitation of the west, much more - a slavish surrender to the"
,"west”.22 Further, Lakshminarayan Sahu, also a member of the"
,"Constituent Assembly, observed: “The ideals on which this draft"
,Constitution is framed have no manifest relation to the
,fundamental spirit of India. This Constitution would not prove
,suitable and would break down soon after being brought into
,operation”.23
,4. An Un-Gandhian Constitution
,"According to the critics, the Indian Constitution is un-Gandhian"
,because it does not contain the philosophy and ideals of Mahatma
,"Gandhi, the father of the Indian Nation. They opined that the"
,Constitution should have been raised and built upon village
,"panchayats and district panchayats. In this context, the same"
,"member of the Constituent Assembly, K. Hanumanthaiya, said:"
,“That is exactly the kind of Constitution Mahatma Gandhi did not
,"want and did not envisage”.24 T. Prakasam, another member of"
,"the Constituent Assembly, attributed this lapse to Ambedkar’s"
,non-participation in the Gandhian movement and the antagonism
,towards the Gandhian ideas.25
,5. Elephantine Size
,The critics stated that the Indian Constitution is too bulky and too
,detailed and contains some unnecessary elements. Sir Ivor
,"Jennings, a British Constitutionalist, observed that the provisions"
,"borrowed were not always well-selected and that the constitution,"
,"generally speaking, was too long and complicated.26"
,"In this context, H.V. Kamath, a member of the Constituent"
,"Assembly, commented : “The emblem and the crest that we have"
,selected for our assembly is an elephant. It is perhaps in
,consonance with that our constitution too is the bulkiest that the
,"world has produced”.27 He also said: “I am sure, the House does"
,not agree that we should make the Constitution an elephantine
,one”.28
,6. Paradise of the Lawyers
,"According to the critics, the Indian Constitution is too legalistic and"
,very complicated. They opined that the legal language and
,phraseology adopted in the constitution makes it a complex
,document. The same Sir Ivor Jennings called it a “lawyer’s
,paradise”.
,"In this context, H.K. Maheswari, a member of the Constituent"
,"Assembly, observed : “The draft tends to make people more"
,"litigious, more inclined to go to law courts, less truthful and less"
,likely to follow the methods of truth and non-violence. If I may say
,"so, the draft is really a lawyer’s paradise. It opens up vast"
,avenues of litigation and will give our able and ingenious lawyers
,plenty of work to do”.29
,"   Similarly, P.R. Deshmukh, another member of the Constituent"
,"Assembly, said : “I should, however, like to say that the draft of the"
,articles that have been brought before the House by Dr.
,Ambedkar seems to my mind to be far too ponderous like the
,ponderous tomes of a law manual. A document dealing with a
,constitution hardly uses so much of padding and so much of
,verbiage. Perhaps it is difficult for them to compose a document
,"which should be, to my mind, not a law manual but a socio-"
,"political document, a vibrating, pulsating and life-giving document."
,"But, to our misfortune, that was not to be, and we have been"
,"burdened with so much of words, words and words which could"
,have been very easily eliminated.”30
,
,Table 3.1 The Constitution of India at a Glance
,Parts           Subject Matter                        Articles
,Covered
,I    The Union and its territory                  1 to 4
,II    Citizenship                                  5 to 11
,III   Fundamental Rights                           12 to 35
,IV     Directive Principles of State Policy         36 to 51
,IV-A     Fundamental Duties                           51-A
,V     The Union Government                         52 to 151
,Chapter I - The Executive                    52 to 78
,Chapter II - Parliament                      79 to 122
,Chapter III - Legislative Powers of          123
,President
,Chapter IV - The Union Judiciary             124 to 147
,Chapter V - Comptroller and Auditor-         148 to 151
,General of India
,VI     The State Governments                        152 to 237
,Chapter I - General                          152
,Chapter II - The Executive                   153 to 167
,       Chapter III - The State Legislature          168 to 212
,Chapter IV - Legislative Powers of           213
,Governor
,Chapter V - The High Courts                  214 to 232
,Chapter VI - Subordinate Courts              233 to 237
,VII   The States in Part B of the First Schedule   238
,(deleted)                                    (deleted)
,VIII   The Union Territories                        239 to 242
,IX   The Panchayats                               243 to 243–
,0
,IX-A   The Municipalities                           243-P to
,243-ZG
,IX-B   The Co-operative Societies                   243-ZH to
,243-ZT
,X    The Scheduled and Tribal Areas               244 to 244-
,A
,XI   Relations between the Union and the          245 to 263
,States
,Chapter I - Legislative Relations            245 to 255
,Chapter II - Administrative Relations        256 to 263
,"XII   Finance, Property, Contracts and Suits       264 to 300-"
,A
,Chapter I - Finance                          264 to 291
,Chapter II - Borrowing                       292 to 293
,"Chapter III - Property, Contracts, Rights,   294 to 300"
,"Liabilities, Obligations and Suits"
,Chapter IV - Right to Property               300-A
,"XIII   Trade, Commerce and Intercourse within       301 to 307"
,the Territory of India
,XIV    Services under the Union and the States      308 to 323
,Chapter I - Services                         308 to 314
,         Chapter II - Public Service Commissions      315 to 323
,XIV-A    Tribunals                                    323-A to
,323-B
,XV    Elections                                    324 to 329-
,A
,XVI   Special Provisions relating to Certain       330 to 342-
,Classes                                      A
,XVII   Official Language                            343 to 351-
,A
,Chapter I - Language of the Union            343 to 344
,Chapter II - Regional Languages              345 to 347
,Chapter III–Language of the Supreme          348 to 349
,"Court, High Courts, and so on"
,Chapter IV–Special Directives                350 to 351
,XVIII   Emergency Provisions                         352 to 360
,XIX   Miscellaneous                                361 to 367
,XX    Amendment of the Constitution                    368
,"XXI   Temporary, Transitional and Special          369 to 392"
,Provisions
,"XXII   Short title, Commencement, Authoritative     393 to 395"
,Text in Hindi and Repeals
,Note: Part VII (dealing with Part-B states) was deleted by the 7th
,"Amendment Act (1956). On the other hand, both Part IV-A and"
,"Part XIV-A were added by the 42nd Amendment Act (1976), while"
,"Part IX-A was added by the 74th Amendment Act (1992), and Part"
,IX-B was added by the 97th Amendment Act (2011).
,
,Table 3.2 Important Articles of the Constitution at a Glance
,Articles                        Deals with
,1    Name and territory of the Union
,"3    Formation of new states and alteration of areas,"
,boundaries or names of existing states
, 13   Laws inconsistent with or in derogation of the
,fundamental rights
,14   Equality before law
,16   Equality of opportunity in matters of public
,employment
,17   Abolition of untouchability
,19   Protection of certain rights regarding freedom of
,"speech, etc."
,21   Protection of life and personal liberty
,21A   Right to elementary education
,"25   Freedom of conscience and free profession,"
,practice and propagation of religion
,30   Right of minorities to establish and administer
,educational institutions
,31C   Saving of laws giving effect to certain directive
,principles
,32   Remedies for enforcement of fundamental rights
,including writs
,38   State to secure a social order for the promotion of
,welfare of the people
,40   Organisation of village panchayats
,44   Uniform civil code for the citizens
,45   Provision for early childhood care and education
,to children below the age of 6 years.
,46   Promotion of educational and economic interests
,"of scheduled castes, scheduled tribes and other"
,weaker sections
,50   Separation of judiciary from executive
,51   Promotion of international peace and security
,51A   Fundamental duties
,"72   Power of president to grant pardons, etc., and to"
,"suspend, remit or commute sentences in certain"
,        cases
,74   Council of ministers to aid and advise the
,president
,78   Duties of prime minister as respects the furnishing
,"of information to the president, etc."
,110   Definition of Money Bills
,112   Annual financial statement (Budget)
,123   Power of president to promulgate ordinances
,during recess of Parliament
,143   Power of president to consult Supreme Court
,155   Appointment of governor
,"161   Power of governor to grant pardons, etc., and to"
,"suspend, remit or commute sentences in certain"
,cases
,163   Council of ministers to aid and advise the
,governor
,167   Duties of chief minister with regard to the
,"furnishing of information to governor, etc."
,169   Abolition or creation of legislative councils in
,states
,200   Assent to bills by governor (including reservation
,for President)
,213   Power of governor to promulgate ordinances
,during recess of the state legislature
,226   Power of high courts to issue certain writs
,239AA   Special provisions with respect to Delhi
,249   Power of Parliament to legislate with respect to a
,matter in the State List in the national interest
,262   Adjudication of disputes relating to waters of inter-
,state rivers or river valleys
,263   Provisions with respect to an inter-state council
,265   Taxes not to be imposed save by authority of law
,        275   Grants from the Union to certain states
,280   Finance Commission
,300   Suits and proceedings
,300A    Persons not to be deprived of property save by
,authority of law (Right to property)
,"311   Dismissal, removal or reduction in rank of persons"
,employed in civil capacities under the Union or a
,state.
,312   All-India Services
,315   Public service commissions for the Union and for
,the states
,320   Functions of Public service commissions
,323-A    Administrative tribunals
,"324   Superintendence, direction and control of"
,elections to be vested in an Election Commission
,330   Reservation of seats for scheduled castes and
,scheduled tribes in the House of the People
,335   Claims of scheduled castes and scheduled tribes
,to services and posts
,352   Proclamation of Emergency (National Emergency)
,356   Provisions in case of failure of constitutional
,machinery in states (President’s Rule)
,360   Provisions as to financial emergency.
,"365   Effect of failure to comply with, or to give effect to,"
,directions given by the Union (President’s Rule)
,368   Power of Parliament to amend the Constitution
,and procedure therefor
,370   Temporary provisions with respect to the state of
,Jammu and Kashmir31
,
,Table 3.3 Schedules of the Constitution at a Glance
,Numbers Subject Matter                            Articles
,                                               Covered
,First    1. Names of the States and their      1 and 4
,Schedule territorial jurisdiction.
,2. Names of the Union Territories
,and their extent.
,"Second   Provisions relating to the            59, 65, 75, 97,"
,"Schedule emoluments, allowances,               125, 148, 158,"
,"privileges and so on of:              164, 186 and"
,221
,1. The President of India
,2. The Governors of States
,3. The Speaker and the Deputy
,Speaker of the Lok Sabha
,4. The Chairman and the Deputy
,Chairman of the Rajya Sabha
,5. The Speaker and the Deputy
,Speaker of the Legislative
,Assembly in the states
,6. The Chairman and the Deputy
,Chairman of the Legislative
,Council in the states
,7. The Judges of the Supreme
,Court
,8. The Judges of the High Courts
,9. The Comptroller and Auditor-
,General of India
,"Third    Forms of Oaths or Affirmations for: 75, 84, 99, 124,"
,"Schedule                                     146, 173, 188"
,and 219
,1. The Union ministers
,2. The candidates for election to
,the Parliament
,3. The members of Parliament
,            4. The judges of the Supreme
,Court
,5. The Comptroller and Auditor-
,General of India
,6. The state ministers
,7. The candidates for election to
,the state legislature
,8. The members of the state
,legislature
,9. The judges of the High Courts
,Fourth   Allocation of seats in the Rajya         4 and 80
,Schedule Sabha to the states and the union
,territories.
,Fifth    Provisions relating to the               244
,Schedule administration and control of
,scheduled areas and scheduled
,tribes.
,Sixth    Provisions relating to the            244 and 275
,Schedule administration of tribal areas in the
,"states of Assam, Meghalaya,"
,Tripura and Mizoram.
,Seventh Division of powers between the             246
,Schedule Union and the States in terms of
,"List I (Union List), List II (State List)"
,and List III (Concurrent List).
,"Presently, the Union List contains"
,"98 subjects (originally 97), the"
,State List contains 59 subjects
,(originally 66) and the Concurrent
,List contains 52 subjects (originally
,47).
,Eighth   Languages recognized by the              344 and 351
,"Schedule Constitution. Originally, it had 14"
,languages but presently there are
,22 languages. They are:
,"           Assamese, Bengali, Bodo, Dogri"
,"(Dongri), Gujarati, Hindi, Kannada,"
,"Kashmiri, Konkani, Mathili"
,"(Maithili), Malayalam, Manipuri,"
,"Marathi, Nepali, Odia, Punjabi,"
,"Sanskrit, Santhali, Sindhi, Tamil,"
,Telugu and Urdu. Sindhi was
,added by the 21st Amendment Act
,"of 1967; Konkani, Manipuri and"
,Nepali were added by the 71st
,Amendment Act of 1992; and
,"Bodo, Dongri, Maithili and Santhali"
,were added by the 92nd
,Amendment Act of 2003. Oriya
,was renamed as ‘Odia’ by the 96th
,Amendment Act of 2011.
,Ninth    Acts and Regulations (originally 13 31-B
,Schedule but presently 282)32 of the state
,legislatures dealing with land
,reforms and abolition of the
,zamindari system and of the
,Parliament dealing with other
,matters. This schedule was added
,by the 1st Amendment (1951) to
,protect the laws included in it from
,judicial scrutiny on the ground of
,violation of fundamental rights.
,"However, in 2007, the Supreme"
,Court ruled that the laws included
,"in this schedule after April 24,"
,"1973, are now open to judicial"
,review.
,Tenth    Provisions relating to                  102 and 191
,Schedule disqualification of the members of
,Parliament and State Legislatures
,on the ground of defection. This
,schedule was added by the 52nd
,"            Amendment Act of 1985, also"
,known as Anti-defection Law.
,"Eleventh Specifies the powers, authority and 243-G"
,Schedule responsibilities of Panchayats. It
,has 29 matters. This schedule was
,added by the 73rd Amendment Act
,of 1992.
,"Twelfth  Specifies the powers, authority and 243-W"
,Schedule responsibilities of Municipalities. It
,has 18 matters. This schedule was
,added by the 74th Amendment Act
,of 1992.
,
,Table 3.4 Sources of the Constitution at a Glance
,Sources                Features Borrowed
,"1.   Government of India Federal Scheme, Office of"
,"Act of 1935         governor, Judiciary, Public Service"
,"Commissions, Emergency"
,provisions and administrative
,details.
,"2.   British Constitution   Parliamentary government, Rule of"
,"Law, legislative procedure, single"
,"citizenship, cabinet system,"
,"prerogative writs, parliamentary"
,privileges and bicameralism.
,"3.   US Constitution        Fundamental rights, independence"
,"of judiciary, judicial review,"
,"impeachment of the president,"
,removal of Supreme Court and high
,court judges and post of vice-
,president.
,"4.   Irish Constitution     Directive Principles of State Policy,"
,nomination of members to Rajya
,Sabha and method of election of
,president.
," 5.     Canadian              Federation with a strong Centre,"
,Constitution          vesting of residuary powers in the
,"Centre, appointment of state"
,"governors by the Centre, and"
,advisory jurisdiction of the Supreme
,Court.
,"6.     Australian            Concurrent List, freedom of trade,"
,"Constitution          commerce and inter-course, and"
,joint sitting of the two Houses of
,Parliament.
,7.     Weimar Constitution Suspension of Fundamental Rights
,of Germany          during Emergency.
,8.     Soviet Constitution Fundamental duties and the ideal of
,"(USSR, now Russia) justice (social, economic and"
,political) in the Preamble.
,"9.     French Constitution   Republic and the ideals of liberty,"
,equality and fraternity in the
,Preamble.
,10.     South African         Procedure for amendment of the
,Constitution          Constitution and election of
,members of Rajya Sabha.
,11.     Japanese              Procedure established by Law.
,Constitution
,
,
,NOTES AND REFERENCES
,"1. Kesavananda Bharati v. State of Kerala, (1973)"
,"2. For details on Parts, important Articles and Schedules,"
,"see Tables 3.1, 3.2 and 3.3 at the end of this chapter."
,3. The American Constitution originally consisted of only 7
,"Articles, the Australian 128, the Chinese 138, and the"
,Canadian 147.
,"4. Till 2019, the erstwhile State of Jammu and Kashmir"
,had its own constitution and thus enjoyed a special
,status by virtue of Article 370 of the Constitution of
,"India. In 2019, this special status was abolished by a"
,      presidential order known as “The Constitution
,"(Application to Jammu and Kashmir) Order, 2019”. This"
,order superseded the earlier order known as “The
,"Constitution (Application to Jammu and Kashmir) Order,"
,1954”. The 2019 order extended all the provisions of the
,Constitution of India to Jammu and Kashmir also.
,"However, the inoperative Article 370 continue to remain"
,in the text of the Constitution of India.
,"Further, the Jammu and Kashmir Reorganisation Act,"
,"2019, bifurcated the erstwhile State of Jammu and"
,"Kashmir into two separate Union territories, namely, the"
,Union territory of Jammu & Kashmir and the Union
,territory of Ladakh.
,5.   About 250 provisions of the 1935 Act have been
,included in the Constitution.
,"6.   Constituent Assembly Debates, Volume VII, P.35–38."
,"7.   P.M. Bakshi, The Constitution of India, Universal, Fifth"
,"Edition, 2002, P. 4."
,8.   See Table 3.4 at the end of this chapter.
,"9.   Brij Kishore Sharma, Introduction to the Constitution of"
,"India, Seventh Edition, 2015, PHI Learning Private"
,"Limited, P.42."
,10.    Westminster is a place in London where the British
,Parliament is located. It is often used as a
,symbol/synonym of the British Parliament.
,"11.   Originally, the Constitution provided for seven"
,"Fundamental Rights. However, the Right to Property"
,(Article 31) was deleted from the list of Fundamental
,Rights by the 44th Amendment Act of 1978. It is made a
,legal right under Article 300-A in Part XII of the
,constitution.
,"12.    Minerva Mills v. Union of India, (1980)."
,"13.    The 1909, 1919, and 1935 Acts provided for communal"
,representation.
,"14.    Even in the western countries, the right to vote was"
,"extended only gradually. For example, USA gave"
,"franchise to women in 1920, Britain in 1928, USSR"
,"      (now Russia) in 1936, France in 1945, Italy in 1948 and"
,Switzerland in 1971.
,"15.    At present, there are three All-India services, namely"
,"Indian Administrative Service (IAS), Indian Police"
,"Service (IPS) and Indian Forest Service (IFS). In 1947,"
,Indian Civil Service (ICS) was replaced by IAS and the
,Indian Police (IP) was replaced by IPS and were
,recognised by the Constitution as AllIndia Services. In
,"1963, IFS was created and it came into existence in"
,1966
,16.    The 44th Amendment Act (1978) has replaced the
,original term ‘internal disturbance’ by the new term
,‘armed rebellion’.
,17.    Part IX of the Constitution provides for a three-tier
,"system of panchayati raj in every state, that is,"
,"panchayats at the village, intermediate and district"
,levels.
,18.    Part IX-A of the Constitution provides for three types of
,"municipalities in every state, that is, nagar panchayat for"
,"a transitional area, municipal council for a smaller urban"
,area and municipal corporation for a larger urban area.
,"19.    Constituent Assembly Debates, Volume VII, pp.35–38."
,20.    Ibid.
,"21.    Constituent Assembly Debates, Volume XI, P.616."
,"22.    Constituent Assembly Debates, Volume VII, P.242."
,"23.    Constituent Assembly Debates, Volume XI, P.613."
,"24.    Constituent Assembly Debates, Volume XI, P.617."
,"25.    Constituent Assembly Debates, Volume VII, P.387."
,"26.    Ivor Jennings, Some Characteristics of the Indian"
,"Constitution, Oxford University Press, Madras, 1953,"
,PP.9–16.
,"27.    Constituent Assembly Debates, Volume VII, P.1042."
,"28.    Constituent Assembly Debates, Volume VIII, P.127."
,"29.    Constituent Assembly Debates, Volume VII, P.293."
,"30.    Constituent Assembly Debates, Volume IX, P.613."
,"31.    Till 2019, the erstwhile State of Jammu and Kashmir"
,had its own constitution and thus enjoyed a special
,status by virtue of Article 370 of the Constitution of
,"    India. In 2019, this special status was abolished by a"
,presidential order known as “The Constitution
,"(Application to Jammu and Kashmir) Order, 2019”. This"
,order superseded the earlier order known as “The
,"Constitution (Application to Jammu and Kashmir) Order,"
,1954”. The 2019 order extended all the provisions of the
,Constitution of India to Jammu and Kashmir also.
,"However, the inoperative Article 370 continue to remain"
,in the text of the Constitution of India.
,"Further, the Jammu and Kashmir Reorganisation Act,"
,"2019, bifurcated the erstwhile State of Jammu and"
,"Kashmir into two separate Union territories, namely, the"
,Union territory of Jammu & Kashmir and the Union
,territory of Ladakh.
,"32. Though the last entry is numbered 284, the actual total"
,"number is 282. This is because, three entries (87,92"
,and 130) have been deleted and one entry is numbered
,as 257-A.
, 4     Preamble of the Constitution
,
,
,
,
,T
,he American Constitution was the first to begin with a
,"Preamble. Many countries, including India, followed this"
,practice. The term ‘Preamble’ refers to the introduction or
,preface to the Constitution. It contains the summary or essence of
,"the Constitution. N.A. Palkhivala, an eminent jurist and"
,"constitutional expert, called the Preamble as the ‘identity card of"
,the Constitution.’
,The Preamble to the Indian Constitution is based on the
,"‘Objectives Resolution’, drafted and moved by Pandit Nehru, and"
,adopted by the Constituent Assembly1. It has been amended by
,"the 42nd Constitutional Amendment Act (1976), which added"
,"three new words–Socialist, Secular and Integrity."
, TEXT OF THE PREAMBLE
,
,The Preamble in its present form reads:
,
,"“We, THE PEOPLE OF INDIA, having solemnly resolved to constitute"
,India into a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC
,and to secure to all its citizens:
,"JUSTICE, Social, Economic and Political;"
,
,"LIBERTY of thought, expression, belief, faith and worship;"
,EQUALITY of status and of opportunity; and to promote among
,them all; FRATERNITY assuring the dignity of the individual and
,the unity and integrity of the Nation;
,IN OUR CONSTITUENT ASSEMBLY this twenty-sixth day of
,"November, 1949, do HEREBY ADOPT, ENACT AND GIVE TO"
,OURSELVES THIS CONSTITUTION”.
, INGREDIENTS OF THE PREAMBLE
,The Preamble reveals four ingredients or components:
,1. Source of authority of the Constitution: The Preamble states
,that the Constitution derives its authority from the people of
,India.
,"2. Nature of Indian State: It declares India to be of a sovereign,"
,"socialist, secular democratic and republican polity."
,"3. Objectives of the Constitution: It specifies justice, liberty,"
,equality and fraternity as the objectives.
,4. Date of adoption of the Constitution: It stipulates November
,"26, 1949, as the date."
, KEY WORDS IN THE PREAMBLE
,
,"Certain key words–Sovereign, Socialist, Secular, Democratic,"
,"Republic, Justice, Liberty, Equality and Fraternity–are explained"
,as follows:
,
,1. Sovereign
,The word ‘sovereign’ implies that India is neither a dependency
,"nor a dominion of any other nation, but an independent state2."
,"There is no authority above it, and it is free to conduct its own"
,affairs (both internal and external).
,"Though in 1949, India declared the continuation of her full"
,membership of the Commonwealth of Nations and accepted the
,"British Crown as the head of the Commonwealth, this extra-"
,constitutional declaration does not affect India’s sovereignty in any
,"manner3. Further, India’s membership of the United Nations"
,Organisation (UNO) also in no way constitutes a limitation on her
,sovereignty4 .
,"Being a sovereign state, India can either acquire a foreign"
,territory or cede a part of its territory in favour of a foreign state.
,
,2. Socialist
,Even before the term was added by the 42nd Amendment in
,"1976, the Constitution had a socialist content in the form of certain"
,"Directive Principles of State Policy. In other words, what was"
,hitherto implicit in the Constitution has now been made explicit.
,"Moreover, the Congress party itself adopted a resolution5 to"
,establish a ‘socialistic pattern of society’ in its Avadi session as
,early as in 1955 and took measures accordingly.
,"Notably, the Indian brand of socialism is a ‘democratic"
,socialism’ and not a ‘communistic socialism’ (also known as ‘state
,socialism’) which involves the nationalisation of all means of
,production and distribution and the abolition of private property.
,"Democratic socialism, on the other hand, holds faith in a ‘mixed"
,economy’ where both public and private sectors co-exist side by
,"side6. As the Supreme Court says, ‘Democratic socialism aims to"
,"end poverty, ignorance, disease and inequality of opportunity7."
,"Indian socialism is a blend of Marxism and Gandhism, leaning"
,heavily towards the Gandhian socialism’8 .
,"The new Economic Policy (1991) of liberalisation, privatisation"
,"and globalisation has, however, diluted the socialist credentials of"
,the Indian State.
,
,3. Secular
,The term ‘secular’ too was added by the 42nd Constitutional
,"Amendment Act of 1976. However, as the Supreme Court said in"
,"1974, although the words ‘secular state’9 were not expressedly"
,"mentioned in the Constitution, there can be no doubt that"
,Constitutionmakers wanted to establish such a state and
,accordingly Articles 25 to 28 (guaranteeing the fundamental right
,to freedom of religion) have been included in the constitution.
,The Indian Constitution embodies the positive concept of
,"secularism ie, all religions in our country (irrespective of their"
,strength) have the same status and support from the state10 .
,
,4. Democratic
,"A democratic11 polity, as stipulated in the Preamble, is based on"
,"the doctrine of popular sovereignty, that is, possession of supreme"
,power by the people.
,Democracy is of two types–direct and indirect. In direct
,"democracy, the people exercise their supreme power directly as is"
,the case in Switzerland. There are four devices of direct
,"democracy, namely, Referendum, Initiative, Recall and"
,"Plebiscite12. In indirect democracy, on the other hand, the"
,representatives elected by the people exercise the supreme
,power and thus carry on the government and make the laws. This
,"type of democracy, also known as representative democracy, is of"
,two kinds–parliamentary and presidential.
,The Indian Constitution provides for representative
,parliamentary democracy under which the executive is
,responsible to the legislature for all its policies and actions.
,"Universal adult franchise, periodic elections, rule of law,"
,"independence of judiciary, and absence of discrimination on"
,certain grounds are the manifestations of the democratic
,character of the Indian polity.
,The term ‘democratic’ is used in the Preamble in the broader
,sense embracing not only political democracy but also social and
,economic democracy.
,This dimension was stressed by Dr. Ambedkar in his
,"concluding speech in the Constituent Assembly on November 25,"
,"1949, in the following way:"
,“Political democracy cannot last unless there lies at the base of
,it social democracy. What does social democracy mean ? It
,"means a way of life which recognises liberty, equality and"
,"fraternity. The principles of liberty, equality and fraternity are not to"
,be treated as separate items in a trinity. They form a union of
,trinity in the sense that to divorce one from the other is to defeat
,the very purpose of democracy. Liberty cannot be divorced from
,"equality, equality cannot be divorced from liberty. Nor can liberty"
,"and equality be divorced from fraternity. Without equality, liberty"
,would produce the supremacy of the few over the many. Equality
,"without liberty, would kill individual initiative”.12a"
,"In the same context, the Supreme Court observed in 1997 that:"
,“The Constitution envisions to establish an egalitarian social order
,"rendering to every citizen social, economic and political justice in"
,a social and economic democracy of the Bharat Republic”.
,
,5. Republic
,A democratic polity can be classified into two categories–
,"monarchy and republic. In a monarchy, the head of the state"
,"(usually king or queen) enjoys a hereditary position, that is, he"
,"comes into office through succession, e.g., Britain. In a republic,"
,"on the other hand, the head of the state is always elected directly"
,"or indirectly for a fixed period, e.g., USA."
,"Therefore, the term ‘republic’ in our Preamble indicates that"
,India has an elected head called the president. He is elected
,indirectly for a fixed period of five years.
,"A republic also means two more things: one, vesting of political"
,sovereignty in the people and not in a single individual like a king;
,"second, the absence of any privileged class and hence all public"
,offices being opened to every citizen without any discrimination.
,
,6. Justice
,The term ‘justice’ in the Preamble embraces three distinct forms–
,"social, economic and political, secured through various provisions"
,of Fundamental Rights and Directive Principles.
,Social justice denotes the equal treatment of all citizens without
,"any social distinction based on caste, colour, race, religion, sex"
,and so on. It means absence of privileges being extended to any
,"particular section of the society, and improvement in the"
,"conditions of backward classes (SCs, STs and OBCs) and"
,women.
,Economic justice denotes the non-discrimination between
,people on the basis of economic factors. It involves the elimination
,"of glaring inequalities in wealth, income and property. A"
,combination of social justice and economic justice denotes what is
,known as ‘distributive justice’.
,Political justice implies that all citizens should have equal
,"political rights, equal access to all political offices and equal voice"
,in the government.
,"The ideal of justice–social, economic and political–has been"
,taken from the Russian Revolution (1917).
,
,7. Liberty
,The term ‘liberty’ means the absence of restraints on the activities
,"of individuals, and at the same time, providing opportunities for"
,the development of individual personalities.
,"The Preamble secures to all citizens of India liberty of thought,"
,"expression, belief, faith and worship, through their Fundamental"
,"Rights, enforceable in court of law, in case of violation."
,Liberty as elaborated in the Preamble is very essential for the
,"successful functioning of the Indian democratic system. However,"
,"liberty does not mean ‘license’ to do what one likes, and has to be"
,enjoyed within the limitations mentioned in the Constitution itself.
,"In brief, the liberty conceived by the Preamble or Fundamental"
,Rights is not absolute but qualified.
,"  The ideals of liberty, equality and fraternity in our Preamble"
,have been taken from the French Revolution (1789–1799).
,
,8. Equality
,The term ‘equality’ means the absence of special privileges to any
,"section of the society, and the provision of adequate opportunities"
,for all individuals without any discrimination.
,The Preamble secures to all citizens of India equality of status
,and opportunity. This provision embraces three dimensions of
,"equality–civic, political and economic."
,The following provisions of the chapter on Fundamental Rights
,ensure civic equality:
,(a) Equality before the law (Article 14).
,"(b) Prohibition of discrimination on grounds of religion, race,"
,"caste, sex or place of birth (Article 15)."
,(c) Equality of opportunity in matters of public employment
,(Article 16).
,(d) Abolition of untouchability (Article 17).
,(e) Abolition of titles (Article 18).
,There are two provisions in the Constitution that seek to
,"achieve political equality. One, no person is to be declared"
,"ineligible for inclusion in electoral rolls on grounds of religion,"
,"race, caste or sex (Article 325). Two, elections to the Lok Sabha"
,and the state assemblies to be on the basis of adult suffrage
,(Article 326).
,The Directive Principles of State Policy (Article 39) secures to
,men and women equal right to an adequate means of livelihood
,and equal pay for equal work.
,
,9. Fraternity
,Fraternity means a sense of brotherhood. The Constitution
,promotes this feeling of fraternity by the system of single
,"citizenship. Also, the Fundamental Duties (Article 51-A) say that it"
,shall be the duty of every citizen of India to promote harmony and
,the spirit of common brotherhood amongst all the people of India
,"transcending religious, linguistic, regional or sectional diversities."
,   The Preamble declares that fraternity has to assure two things–
,the dignity of the individual and the unity and integrity of the
,nation. The word ‘integrity’ has been added to the preamble by the
,42nd Constitutional Amendment (1976).
,"According to K.M. Munshi, a member of the Drafting Committee"
,"of the Constituent Assembly, the phrase ‘dignity of the individual’"
,signifies that the Constitution not only ensures material betterment
,"and maintain a democratic set-up, but that it also recognises that"
,the personality of every individual is sacred. This is highlighted
,through some of the provisions of the Fundamental Rights and
,"Directive Principles of State Policy, which ensure the dignity of"
,"individuals. Further, the Fundamental Duties (Article 51-A) also"
,protect the dignity of women by stating that it shall be the duty of
,every citizen of India to renounce practices derogatory to the
,"dignity of women, and also makes it the duty of every citizen of"
,"India to uphold and protect the sovereignty, unity and integrity of"
,India.
,The phrase ‘unity and integrity of the nation’ embraces both the
,psychological and territorial dimensions of national integration.
,Article 1 of the Constitution describes India as a ‘Union of States’
,to make it clear that the states have no right to secede from the
,"Union, implying the indestructible nature of the Indian Union. It"
,aims at overcoming hindrances to national integration like
,"communalism, regionalism, casteism, linguism, secessionism and"
,so on.
, SIGNIFICANCE OF THE PREAMBLE
,
,The Preamble embodies the basic philosophy and fundamental
,"values–political, moral and religious–on which the Constitution is"
,based. It contains the grand and noble vision of the Constituent
,"Assembly, and reflects the dreams and aspirations of the founding"
,fathers of the Constitution. In the words of Sir Alladi Krishnaswami
,"Iyer, a member of the Constituent Assembly who played a"
,"significant role in making the Constitution, ‘The Preamble to our"
,Constitution expresses what we had thought or dreamt so long’.
,"According to K.M. Munshi, a member of the Drafting Committee"
,"of the Constituent Assembly, the Preamble is the ‘horoscope of"
,our sovereign democratic republic’.
,"Pandit Thakur Das Bhargava, another member of the"
,"Constituent Assembly, summed up the importance of the"
,Preamble in the following words: ‘The Preamble is the most
,precious part of the Constitution. It is the soul of the Constitution.
,It is a key to the Constitution. It is a jewel set in the Constitution. It
,is a proper yardstick with which one can measure the worth of the
,Constitution’.
,"Sir Ernest Barker, a distinguished English political scientist,"
,paid a glowing tribute to the political wisdom of the authors of the
,Preamble. He described the Preamble as the ‘key-note’13 to the
,Constitution. He was so moved by the text of the preamble that he
,"quoted14 it at the opening of his popular book, Principles of Social"
,and Political Theory (1951).
,"M. Hidayatullah, a former Chief Justice of India, observed,"
,‘Preamble resembles the Declaration of Independence of the
,"United States of America, but is more than a declaration. It is the"
,"soul of our Constitution, which lays down the pattern of our"
,"political society. It contains a solemn resolve, which nothing but a"
,revolution can alter15 .
, PREAMBLE AS PART OF THE CONSTITUTION
,
,One of the controversies about the Preamble is as to whether it is
,a part of the Constitution or not.
,"In the Berubari Union16 case (1960), the Supreme Court said"
,that the Preamble shows the general purposes behind the several
,"provisions in the Constitution, and is thus a key to the minds of the"
,"makers of the Constitution. Further, where the terms used in any"
,"article are ambiguous or capable of more than one meaning,"
,some assistance at interpretation may be taken from the
,objectives enshrined in the Preamble. Despite this recognition of
,"the significance of the Preamble, the Supreme Court specifically"
,opined that Preamble is not a part of the Constitution.
,"In the Kesavananda Bharati case17 (1973), the Supreme Court"
,rejected the earlier opinion and held that Preamble is a part of the
,Constitution. It observed that the Preamble is of extreme
,importance and the Constitution should be read and interpreted in
,the light of the grand and noble vision expressed in the Preamble.
,"In the LIC of India case18 (1995) also, the Supreme Court again"
,held that the Preamble is an integral part of the Constitution.
,"Like any other part of the Constitution, the Preamble was also"
,"enacted by the Constituent Assembly; but, after the rest of the"
,Constitution was already enacted. The reason for inserting the
,Preamble at the end was to ensure that it was in conformity with
,the Constitution as adopted by the Constituent Assembly. While
,"forwarding the Preamble for votes, the President of the"
,"Constituent Assembly said, ‘The question is that Preamble stands"
,"part of the Constitution’19. The motion was then adopted. Hence,"
,the current opinion held by the Supreme Court that the Preamble
,"is a part of the Constitution, is in consonance with the opinion of"
,the founding fathers of the Constitution.
,"However, two things should be noted:"
,1. The Preamble is neither a source of power to legislature nor
,a prohibition upon the powers of legislature.
,"2. It is non-justiciable, that is, its provisions are not enforceable"
,in courts of law.
, AMENABILITY OF THE PREAMBLE
,
,The question as to whether the Preamble can be amended under
,Article 368 of the Constitution arose for the first time in the historic
,Kesavananda Bharati case (1973). It was urged that the Preamble
,cannot be amended as it is not a part of the Constitution. The
,petitioner contended that the amending power in Article 368
,cannot be used to destroy or damage the basic elements or the
,"fundamental features of the Constitution, which are enshrined in"
,the Preamble.
,"The Supreme Court, however, held that the Preamble is a part"
,of the Constitution. The Court stated that the opinion tendered by
,"it in the Berubari Union (1960) in this regard was wrong, and held"
,"that the Preamble can be amended, subject to the condition that"
,"no amendment is done to the ‘basic features’. In other words, the"
,Court held that the basic elements or the fundamental features of
,the Constitution as contained in the Preamble cannot be altered
,by an amendment under Article 36820 .
,"The Preamble has been amended only once so far, in 1976, by"
,"the 42nd Constitutional Amendment Act, which has added three"
,"new words–Socialist, Secular and Integrity–to the Preamble. This"
,amendment was held to be valid.
,
,
,NOTES AND REFERENCES
,"1. Moved by Nehru on December 13, 1946 and adopted"
,"by the Constituent Assembly on January 22, 1947."
,"2. Till the passage of the Indian Independence Act, 1947,"
,India was a dependency (colony) of the British Empire.
,"From August 15, 1947 to January 26, 1950, India’s"
,political status was that of a dominion in the British
,Commonwealth of Nations. India ceased to be a British
,"dominion on January 26, 1950, by declaring herself a"
,"sovereign republic. However, Pakistan continued to be a"
,British Dominion until 1956.
,3. To dispel the lurking fears of some members of the
,"Constituent Assembly, Pandit Nehru said in 1949 thus:"
,     ‘We took pledge long ago to achieve Purna Swaraj. We
,have achieved it. Does a nation lose its independence
,by an alliance with another country? Alliance normally
,means commitments. The free association of the
,sovereign Commonwealth of Nations does not involve
,such commitments. Its very strength lies in its flexibility
,and its complete freedom. It is well-known that it is open
,to any member-nation to go out of the commonwealth if
,"it so chooses’. He further stated, ‘It is an agreement by"
,"free will, to be terminated by free will’."
,4.   India became a member of the UNO in 1945.
,5.   The Resolution said: ‘In order to realise the object of
,Congress and to further the objectives stated in the
,Preamble and Directive Principles of State Policy of the
,"Constitution of India, planning should take place with a"
,view to the establishment of a socialistic pattern of
,"society, where the principal means of production are"
,"under social ownership or control, production is"
,progressively speeded up and there is equitable
,distribution of the national wealth’.
,"6.   The Prime Minister, Indira Gandhi, said, ‘We have"
,always said that we have our own brand of socialism.
,We will nationalise the sectors where we feel the
,necessity. Just nationalisation is not our type of
,socialism’.
,7.   G.B. Pant University of Agriculture and Technology v.
,State of Uttar Pradesh (2000).
,8.   Nakara v. Union of India (1983).
,"9.   On the basis of the attitude of the state towards religion,"
,three types of states can be conceived of:
,"(a) Atheistic State: The state is anti-religion and hence,"
,condemns all religions.
,(b) Theocratic State: The state is pro-religion and
,"hence, declares one particular religion as the state"
,"religion, as for example, Bangladesh, Burma, Sri"
,"Lanka, Pakistan, and so on."
,(c) Secular State: The state is neutral in the matter of
,"religion and hence, does not uphold any particular"
,"          religion as the state religion, as for example, USA"
,and India.
,"G.S. Pande, Constitutional Law of India, Allahabad"
,"Law Agency, eighth edition, 2002, P. 222."
,"10. The then Union Law Minister, H.R. Gokhale defined this"
,"concept as: ‘There will be freedom, liberty of faith and"
,"worship, whatever religion you belong to. The State will"
,"not have anything to do, as a state, with any religion"
,"excepting to treat every religion equally, but the State"
,"will not have any foundation of religion’. Similarly, P.B."
,"Gajendragadkar, a former Chief Justice of India, defined"
,secularism as in the Indian Constitution in the following
,way: ‘The State does not owe loyalty to any particular
,religion as such: it is not irreligious or anti-religious; it
,gives equal freedom to all religions’.
,"11. The term ‘democracy’ is derived from two Greek words,"
,"namely, Demos and Kratia meaning ‘People’ and ‘rule’"
,respectively.
,12. Referendum is a procedure whereby a proposed
,legislation is referred to the electorate for settlement by
,their direct votes.
,Initiative is a method by means of which the people can
,propose a bill to the legislature for enactment.
,Recall is a method by means of which the voters can
,remove a representative or an officer before the expiry
,"of his term, when he fails to discharge his duties"
,properly.
,Plebiscite is a method of obtaining the opinion India’s of
,people on any issue of public importance. It is generally
,used to solve the territorial disputes.
,"12a. B. Shiva Rao, The Framing of India’s Constitution:"
,"Select Documents, Volume IV, P. 944."
,13. He said that the Preamble of the Indian Constitution
,states ‘in a brief and pithy form the argument of much of
,the book; and it may accordingly serve as a key-note’.
,14. He wrote: ‘I am all the more moved to quote it because I
,am proud that the people of India should begin their
,independent life by subscribing to the principles of a
,"      political tradition which we in the west call western, but"
,which is now something more than the western’.
,"15.    M Hidayatullah, Democracy in India and the Judicial"
,"Process, p. 51."
,16.    Reference by the President of India under Article 143 of
,the Constitution on the implementation of the Indo-
,Pakistan agreement relating to Berubari union and
,exchange of enclaves (1960).
,17.    Kesavananda Bharati v. State of Kerala (1973).
,18.    LIC of India v. Consumer Education and Research
,Centre (1995).
,"19.    ‘Constituent Assembly Debates’, Volume 10, P. 450–"
,456
,"20.    The Court observed, ‘The edifice of our Constitution is"
,based upon the basic elements mentioned in the
,"Preamble. If any of these elements are removed, the"
,structure will not survive and it will not be the same
,Constitution or it cannot maintain its identity. An
,amending power cannot be interpreted so as to confer
,power on the Parliament to take away any of these
,fundamental and basic characteristics of the polity’.
,5   Union and its Territory
,
,
,
,
,A
,rticles 1 to 4 under Part-I of the Constitution deal with the
,Union and its territory.
, UNION OF STATES
,"Article 1 describes India, that is, Bharat as a ‘Union of States’"
,rather than a ‘Federation of States’. This provision deals with two
,"things: one, name of the country; and two, type of polity."
,There was no unanimity in the Constituent Assembly with
,regard to the name of the country. Some members suggested the
,"traditional name (Bharat), while other advocated the modern"
,"name (India). Hence, the Constituent Assembly had to adopt a"
,"mix of both (‘India, that is, Bharat’)"
,"Secondly, the country is described as ‘Union’ although its"
,Constitution is federal in structure. According to Dr. B.R.
,"Ambedkar, the phrase ‘Union of States’ has been preferred to"
,"‘Federation of States’ for two reasons: one, the Indian Federation"
,is not the result of an agreement among the states like the
,"American Federation; and two, the states have no right to secede"
,from the federation. The federation is an Union because it is
,indestructible. The country is an integral whole and divided into
,different states only for the convenience of administration1 .
,"According to Article 1, the territory of India can be classified into"
,three categories:
,1. Territories of the states
,2. Union territories
,3. Territories that may be acquired by the Government of India
,at any time.
,The names of states and union territories and their territorial
,extent are mentioned in the first schedule of the Constitution. At
,"present, there are 28 states and 9 union territories. The provisions"
,of the Constitution pertaining to the states are applicable to all the
,"states in the same manner2. However, the special provisions"
,"(under Part XXI) applicable to the States of Maharashtra, Gujarat,"
,"Nagaland, Assam, Manipur, Andhra Pradesh, Telangana, Sikkim,"
,"Mizoram, Arunanchal Pradesh, Goa and Karnataka override the"
,"general provisions relating to the states as a class. Further, the"
,Fifth and Sixth Schedules contain separate provisions with
,respect to the administration of scheduled areas and tribal areas
,within the states.
,"Notably, the ‘Territory of India’ is a wider expression than the"
,‘Union of India’ because the latter includes only states while the
,"former includes not only the states, but also union territories and"
,territories that may be acquired by the Government of India at any
,future time. The states are the members of the federal system and
,share a distribution of powers with the Centre. The union
,"territories and the acquired territories, on the other hand, are"
,directly administered by the Central government.
,"Being a sovereign state, India can acquire foreign territories"
,"according to the modes recognised by international law, i.e.,"
,"cession (following treaty, purchase, gift, lease or plebiscite),"
,"occupation (hitherto unoccupied by a recognised ruler), conquest"
,"or subjugation. For example, India acquired several foreign"
,"territories such as Dadra and Nagar Haveli; Goa, Daman and Diu;"
,Puducherry; and Sikkim since the commencement of the
,Constitution. The acquisition of these territories are discussed
,later in this chapter.
,Article 2 empowers the Parliament to ‘admit into the Union of
,"India, or establish, new states on such terms and conditions as it"
,"thinks fit’. Thus, Article 2 grants two powers to the Parliament: (a)"
,the power to admit into the Union of India new states; and (b) the
,power to establish new states. The first refers to the admission of
,"states which are already in existence, while the second refers to"
,the establishment of states which were not in existence before.
,"Notably, Article 2 relates to the admission or establishment of new"
,"states that are not part of the Union of India. Article 3, on the other"
,"hand, relates to the formation of or changes in the existing states"
,"of the Union of India. In other words, Article 3 deals with the"
,internal re-adjustment inter se of the territories of the constituent
,states of the Union of India.
, PARLIAMENT’S POWER TO REORGANISE THE
,STATES
,
,Article 3 authorises the Parliament to:
,(a) form a new state by separation of territory from any state or
,by uniting two or more states or parts of states or by uniting
,any territory to a part of any state;
,(b) increase the area of any state;
,(c) diminish the area of any state;
,(d) alter the boundaries of any state; and
,(e) alter the name of any state.
,"However, Article 3 lays down two conditions in this regard: one,"
,a bill contemplating the above changes can be introduced in the
,Parliament only with the prior recommendation of the President;
,"and two, before recommending the bill, the President has to refer"
,the same to the state legislature concerned for expressing its
,views within a specified period.
,"Further, the power of Parliament to form new states includes"
,the power to form a new state or union territory by uniting a part of
,any state or union territory to any other state or union territory3 .
,The President (or Parliament) is not bound by the views of the
,"state legislature and may either accept or reject them, even if the"
,"views are received in time. Further, it is not necessary to make a"
,fresh reference to the state legislature every time an amendment
,to the bill is moved and accepted in Parliament4. In case of a
,"union territory, no reference need be made to the concerned"
,legislature to ascertain its views and the Parliament can itself take
,any action as it deems fit.
,"It is, thus, clear that the Constitution authorises the Parliament"
,"to form new states or alter the areas, boundaries or names of the"
,"existing states without their consent. In other words, the"
,Parliament can redraw the political map of India according to its
,"will. Hence, the territorial integrity or continued existence of any"
,"state is not guaranteed by the Constitution. Therefore, India is"
,rightly described as ‘an indestructible union of destructible states’.
,The Union Government can destroy the states whereas the state
,"governments cannot destroy the Union. In USA, on the other"
,"hand, the territorial integrity or continued existence of a state is"
,guaranteed by the Constitution. The American Federal
,Government cannot form new states or alter the borders of
,existing states without the consent of the states concerned. That
,is why the USA is described as ‘an indestructible union of
,indestructible states.’
,"Moreover, the Constitution (Article 4) itself declares that laws"
,made for admission or establishment of new states (under Article
,"2) and formation of new states and alteration of areas, boundaries"
,or names of existing states (under Articles 3) are not to be
,considered as amendments of the Constitution under Article 368.
,This means that such laws can be passed by a simple majority
,and by the ordinary legislative process.
,Does the power of Parliament to diminish the areas of a state
,(under Article 3) include also the power to cede Indian territory to
,a foreign country? This question came up for examination before
,the Supreme Court in a reference made by the President in 1960.
,The decision of the Central Government to cede part of a territory
,known as Berubari Union (West Bengal) to Pakistan led to political
,agitation and controversy and thereby necessitated the
,Presidential reference. The Supreme Court held that the power of
,Parliament to diminish the area of a state (under Article 3) does
,"not cover cession of Indian territory to a foreign country. Hence,"
,Indian territory can be ceded to a foreign state only by amending
,"the Constitution under Article 368. Consequently, the 9th"
,Constitutional Amendment Act (1960) was enacted to transfer the
,said territory to Pakistan.
,"On the other hand, the Supreme Court in 1969 ruled that,"
,settlement of a boundary dispute between India and another
,country does not require a constitutional amendment. It can be
,done by executive action as it does not involve cession of Indian
,territory to a foreign country.
, EXCHANGE OF TERRITORIES WITH BANGLADESH
,
,The 100th Constitutional Amendment Act (2015) was enacted to
,give effect to the acquiring of certain territories by India and
,transfer of certain other territories to Bangladesh in pursuance of
,the agreement and its protocol entered into between the
,"Governments of India and Bangladesh. Under this deal, India"
,"transferred 111 enclaves to Bangladesh, while Bangladesh"
,"transferred 51 enclaves to India. In addition, the deal also involved"
,the transfer of adverse possessions and the demarcation of a 6.1
,"km undemarcated border stretch. For these three purposes, the"
,amendment modified the provisions relating to the territories of
,"four states (Assam, West Bengal, Meghalaya and Tripura) in the"
,First Schedule of the Constitution. The background of this
,amendment is as follows:
,1. India and Bangladesh have a common land boundary of
,approximately 4096.7 kms. The India-East Pakistan land
,boundary was determined as per the Radcliffe Award of
,1947. Disputes arose out of some provisions in the Radcliffe
,"Award, which were sought to be resolved through the Bagge"
,Award of 1950. Another effort was made to settle these
,"disputes by the Nehru-Noon Agreement of 1958. However,"
,the issue relating to division of Berubari Union was
,challenged before the Supreme Court. To comply with the
,"opinion rendered by the Supreme Court, the Constitution"
,"(9th Amendment) Act, 1960 was passed by the Parliament."
,Due to the continuous litigation and other political
,"developments at that time, the Constitution (9th"
,"Amendment) Act, 1960 could not be notified in respect of"
,territories in former East Pakistan (presently Bangladesh).4a
,"2. On May 16, 1974, the Agreement between India and"
,Bangladesh concerning the demarcation of the land
,boundary and related matters was signed between both the
,countries to find a solution to the complex nature of the
,border demarcation involved. This Agreement was not
,"ratified as it involved, inter alia, transfer of territory which"
,"requires a Constitutional Amendment. In this connection, it"
,was also required to identify the precise area on the ground
,"which would be transferred. Subsequently, the issues"
,relating to demarcation of un-demarcated boundary; the
,territories in adverse possession; and exchange of enclaves
,were identified and resolved by signing a Protocol on
,"September 6, 2011, which forms an integral part of the Land"
,"Boundary Agreement between India and Bangladesh, 1974."
,The Protocol was prepared with support and concurrence of
,"the concerned state governments of Assam, Meghalaya,"
,Tripura and West Bengal.4b
, EVOLUTION OF STATES AND UNION TERRITORIES
,
,Integration of Princely States
,"At the time of independence, India comprised two categories of"
,"political units, namely, the British provinces (under the direct rule"
,of British government) and the princely states (under the rule of
,native princes but subject to the paramountcy of the British
,Crown). The Indian Independence Act (1947) created two
,independent and separate dominions of India and Pakistan and
,"gave three options to the princely states viz., joining India, joining"
,Pakistan or remaining independent. Of the 552 princely states
,"situated within the geographical boundaries of India, 549 joined"
,"India and the remaining 3 (Hyderabad, Junagarh and Kashmir)"
,"refused to join India. However, in course of time, they were also"
,"integrated with India–Hyderabad by means of police action,"
,Junagarh by means of referendum and Kashmir by the Instrument
,of Accession.
,"In 1950, the Constitution contained a four-fold classification of"
,"the states and territories of the Indian Union–Part A, Part B and"
,"Part C states and Part D territories5. In all, they numbered 29. Part"
,A states comprised nine erstwhile governor’s provinces of British
,India. Part B states consisted of nine erstwhile princely states with
,legislatures. Part C states consisted of erstwhile chief
,commissioner’s provinces of British India and some of the
,erstwhile princely states. These Part C states (in all 10 in number)
,were centrally administered. The Andaman and Nicobar Islands
,were kept as the solitary Part D territories.
,
,Dhar Commission and JVP Committee
,The integration of princely states with the rest of India has purely
,an ad hoc arrangement. There has been a demand from different
,"regions, particularly South India, for reorganisation of states on"
,"linguistic basis. Accordingly, in June 1948, the Government of"
,India appointed the Linguistic Provinces Commission under the
,chairmanship of S.K. Dhar to examine the feasibility of this. The
,"commission submitted its report in December, 1948, and"
,recommended the reorganisation of states on the basis of
,administrative convenience rather than linguistic factor. This
,created much resentment and led to the appointment of another
,"Linguistic Provinces Committee by the Congress in December,"
,"1948, itself to examine the whole question afresh. It consisted of"
,"Jawaharlal Nehru, Vallahbhai Patel and Pattabhi Sitaramayya and"
,"hence, was popularly known as JVP Committee6. It submitted its"
,"report in April, 1949, and formally rejected language as the basis"
,for reorganisation of states.
,
,Table 5.1 Territory of India in 1950
,States in      States in      States in     Territories in Part D
,Part A         Part B         Part C
,1. Assam       1. Hyderabad 1. Ajmer        1. Andaman and
,Nicobar Islands
,2. Bihar       2. Jammu    2. Bhopal
,and Kashmir
,3. Bombay      3. Madhya      3. Bilaspur
,Bharat
,4. Madhya      4. Mysore      4. Cooch-
,Pradesh                       Behar
,5. Madras      5. Patiala     5. Coorg
,and East
,Punjab
,6. Orissa      6. Rajasthan 6. Delhi
,7. Punjab      7. Saurashtra 7. Himachal
,Pradesh
,8. United      8.             8. Kutch
,Provinces      Travancore-
,Cochin
,9. West        9. Vindhya     9. Manipur
,Bengal         Pradesh
,10. Tripura
,Table 5.2 Original Parts of the Constitution Dealing with States
,and Territories
,Parts                  Original Heading      Articles covered
,VI                     The States in Part A 152–237
,of the First Schedule
,VII                    The States in Part B 238
,of the First Schedule
,VIII                   The States in Part C 239–242
,of the First Schedule
,IX                     The Territories in    243
,Part D of the First
,Schedule and other
,Territories not
,specified in that
,Schedule
,
,"However, in October, 1953, the Government of India was forced"
,"to create the first linguistic state, known as Andhra state, by"
,separating the Telugu speaking areas from the Madras state. This
,followed a prolonged popular agitation and the death of Potti
,"Sriramulu, a Congress person of standing, after a 56-day hunger"
,strike for the cause.
,
,Fazl Ali Commission
,The creation of Andhra state intensified the demand from other
,regions for creation of states on linguistic basis. This forced the
,"Government of India to appoint (in December, 1953) a three-"
,member States Reorganisation Commission under the
,chairmanship of Fazl Ali to re-examine the whole question. Its
,other two members were K.M. Panikkar and H.N. Kunzru. It
,submitted its report in September 1955 and broadly accepted
,"language as the basis of reorganisation of states. But, it rejected"
,the theory of ‘one language-one state’. Its view was that the unity
,of India should be regarded as the primary consideration in any
,redrawing of the country’s political units. It identified four major
,factors that can be taken into account in any scheme of
,reorganisation of states:
,(a) Preservation and strengthening of the unity and security of
,the country.
,(b) Linguistic and cultural homogeneity.
,"(c) Financial, economic and administrative considerations."
,(d) Planning and promotion of the welfare of the people in each
,state as well as of the nation as a whole.
,
,Table 5.3 Territory of India in 1956
,States                      Union Territories
,1. Andra Pradesh             1. Andaman and Nicobar Islands
,2. Assam                     2. Delhi
,3. Bihar                     3. Himachal Pradesh
,"4. Bombay                    4. Laccadive, Minicoy and Amindivi"
,Islands
,5. Jammu and Kashmir         5. Manipur
,6. Kerala                    6. Tripura
,7. Madhya Pradesh
,8. Madras
,9. Mysore
,10. Orissa
,11. Punjab
,12. Rajasthan
,13. Uttar Pradesh
,14. West Bengal
,
,The commission suggested the abolition of the four-fold
,classification of states and territories under the original
,Constitution and creation of 16 states and 3 centrally administered
,territories. The Government of India accepted these
,recommendations with certain minor modifications. By the States
,Reorganisation Act (1956) and the 7th Constitutional Amendment
,"Act (1956), the distinction between Part A and Part B states was"
,done away with and Part C states were abolished. Some of them
,were merged with adjacent states and some other were
,"designated as union territories. As a result, 14 states and 6 union"
,"territories were created on November 1, 1956.7"
,The States Reorganisation Act (1956) established the new
,state of Kerala by merging the Travancore - Cochin State with the
,Malabar District of Madras state and Kasargode of South Canara
,(Dakshina Kannada). It merged the Telugu-speaking areas of
,Hyderabad state with the Andhra state to create the Andhra
,"Pradesh state. Further, it merged the Madya Bharat state, Vindya"
,Pradesh state and Bhopal state into the Madya Pradesh state.
,"Similarly, it merged the Saurashtra state and Kutch state into that"
,"of the Bombay state, the Coorg state into that of Mysore state; the"
,Patiala and East Punjab States Union (Pepsu) into that of Punjab
,"state; and the Ajmer state into that of Rajastan state. Moreover, it"
,"created the new union territory of Laccadive, Minicoy and Amindivi"
,Islands from the territory detached from the Madras state.
,
,New States and Union Territories Created After 1956
,"Even after the large-scale reorganisation of the states in 1956, the"
,political map of India underwent continuous changes due to the
,pressure of popular agitations and political conditions. The
,demand for the creation of some more states on the basis of
,language or cultural homogeneity resulted in the bifurcation of
,existing states.
,
,Maharashtra and Gujarat
,"In 1960, the bilingual state of Bombay was divided8 into two"
,separate states–Maharashtra for Marathispeaking people and
,Gujarat for Gujaratispeaking people. Gujarat was established as
,the 15th state of the Indian Union.
,
,Dadra and Nagar Haveli
,The Portuguese ruled this territory until its liberation in 1954.
,"Subsequently, the administration was carried on till 1961 by an"
,administrator chosen by the people themselves. It was converted
,into a union territory of India by the 10th Constitutional
,"Amendment Act, 1961."
,
,"Goa, Daman and Diu"
,India acquired these three territories from the Portuguese by
,means of a police action in 1961. They were constituted as a
,"union territory by the 12th Constitutional Amendment Act, 1962."
,"Later, in 1987, Goa was conferred a statehood.9 Consequently,"
,Daman and Diu was made a separate union territory.
,
,Puducherry
,The territory of Puducherry comprises the former French
,"establishments in India known as Puducherry, Karaikal, Mahe and"
,Yanam. The French handed over this territory to India in 1954.
,"Subsequently, it was administered as an ‘acquired territory’, till"
,1962 when it was made a union territory by the 14th Constitutional
,Amendment Act.
,
,Nagaland
,"In 1963, the State of Nagaland was formed10 by taking the Naga"
,Hills and Tuensang area out of the state of Assam. This was done
,"to satisfy the movement of the hostile Nagas. However, before"
,"giving Nagaland the status of the 16th state of the Indian Union, it"
,was placed under the control of governor of Assam in 1961.
,
,"Haryana, Chandigarh and Himachal Pradesh"
,"In 1966, the State of Punjab was bifurcated11 to create Haryana,"
,"the 17th state of the Indian Union, and the union territory of"
,Chandigarh. This followed the demand for a separate ‘Sikh
,Homeland’ (Punjabi Subha) raised by the Akali Dal under the
,leadership of Master Tara Singh. On the recommendation of the
,"Shah Commission (1966), the Punjabi-speaking areas were"
,"constituted into the unilingual state of Punjab, the Hindi-speaking"
,areas were constituted into the State of Haryana and the hill areas
,were merged with the adjoining union territory of Himachal
,"Pradesh. In 1971, the union territory of Himachal Pradesh was"
,elevated12 to the status of a state (18th state of the Indian Union).
,
,"Manipur, Tripura and Meghalaya"
,"In 1972, the political map of Northeast India underwent a major"
,"change.13 Thus, the two union territories of Manipur and Tripura"
,and the sub-state of Meghalaya got statehood and the two union
,territories of Mizoram and Arunachal Pradesh (originally known as
,"North-East Frontier Agency–NEFA) came into being. With this, the"
,number of states of the Indian Union increased to 21 (Manipur
,"19th, Tripura 20th and Meghalaya 21st). Initially, the 22nd"
,Constitutional Amendment Act (1969) created Meghalaya as an
,‘autonomous state’ or ‘sub-state’ within the state of Assam with its
,"own legislature and council of ministers. However, this did not"
,satisfy the aspirations of the people of Meghalaya. The union
,territories of Mizoram and Arunachal Pradesh were also formed
,out of the territories of Assam.
,
,Sikkim
,"Till 1947, Sikkim was an Indian princely state ruled by Chogyal. In"
,"1947, after the lapse of British paramountcy, Sikkim became a"
,"‘protectorate’ of India, whereby the Indian Government assumed"
,"responsibility for the defence, external affairs and communications"
,"of Sikkim. In 1974, Sikkim expressed its desire for greater"
,"association with India. Accordingly, the 35th Constitutional"
,Amendment Act (1974) was enacted by the parliament. This
,amendment introduced a new class of statehood under the
,constitution by conferring on Sikkim the status of an ‘associate
,"state’ of the Indian Union. For this purpose, a new Article 2-A and"
,a new schedule (10th Schedule containing the terms and
,conditions of association) were inserted in the Constitution. This
,"experiment, however, did not last long as it could not fully satisfy"
,the aspirations of the people of Sikkim. In a referendum held in
,"1975, they voted for the abolition of the institution of Chogyal and"
,"Sikkim becoming an integral part of India. Consequently, the 36th"
,Constitutional Amendment Act (1975) was enacted to make
,Sikkim a full-fledged state of the Indian Union (the 22nd state).
,This amendment amended the First and the Fourth Schedules to
,the Constitution and added a new Article 371-F to provide for
,certain special provisions with respect to the administration of
,Sikkim. It also repealed Article 2-A and the 10th Schedule that
,were added by the 35th Amendment Act of 1974.
,"Mizoram, Arunachal Pradesh and Goa"
,"In 1987, three new States of Mizoram,14 Arunachal Pradesh15"
,"and Goa16 came into being as the 23rd, 24th and 25th states of"
,the Indian Union respectively. The union territory of Mizoram was
,conferred the status of a full state as a sequel to the signing of a
,memorandum of settlement (Mizoram Peace Accord) in 1986
,"between the Central government and the Mizo National Front,"
,ending the two-decade-old insurgency. Arunachal Pradesh had
,also been a union territory from 1972. The State of Goa was
,created by separating the territory of Goa from the Union Territory
,"of Goa, Daman and Diu."
,
,"Chhattisgarh, Uttarakhand and Jharkhand"
,"In 2000, three more new States of Chhattisgarh,17 Uttarakhand18"
,and Jharkhand19 were created out of the territories of Madhya
,"Pradesh, Uttar Pradesh and Bihar, respectively. These became"
,"the 26th, 27th and 28th states of the Indian Union, respectively."
,
,Telangana
,"In 2014, the new state of Telangana came into existence as the"
,29th state of the Indian Union. It was carved out of the territories
,of Andhra Pradesh.
,The Andhra State Act (1953) formed the first linguistic state of
,"India, known as the state of Andhra, by taking out the Telugu"
,speaking areas from the State of Madras (now Tamil Nadu).
,Kurnool was the capital of Andhra state and the state high court
,was established at Guntur.
,The States Reorganisation Act (1956) merged the Telugu-
,speaking areas of Hyderabad state with the Andhra state to create
,the enlarged Andhra Pradesh state. The capital of the state was
,shifted to Hyderabad.
,"Again, the Andhra Pradesh Reorganisation Act (2014)"
,"bifurcated the Andhra Pradesh into two separate states, namely,"
,the Andhra Pradesh (residuary) and the Telangana.
,
,Jammu & Kashmir and Ladakh
,"Till 2019, the erstwhile State of Jammu and Kashmir had its own"
,constitution and thus enjoyed a special status by virtue of Article
,"370 of the Constitution of India. In 2019, this special status was"
,abolished by a presidential order known as “The Constitution
,"(Application to Jammu and Kashmir) Order, 2019”. This order"
,superseded the earlier order known as “The Constitution
,"(Application to Jammu and Kashmir) Order, 1954”. The 2019"
,order extended all the provisions of the Constitution of India to
,"Jammu and Kashmir also. However, the inoperative Article 370"
,continue to remain in the text of the Constitution of India.
,"Further, the Jammu and Kashmir Reorganisation Act, 2019,"
,bifurcated the erstwhile State of Jammu and Kashmir into two
,"separate union territories, namely, the union territory of Jammu &"
,Kashmir and the union territory of Ladakh.
,The union territory of Jammu and Kashmir comprises all the
,districts of the erstwhile State of Jammu and Kashmir except the
,Kargil and Leh districts which have gone to the union territory of
,Ladakh.
,"Thus, the number of states and union territories increased from"
,"14 and 6 in 1956 to 28 and 9 in 2019, respectively20 ."
,
,Change of Names
,The names of some states and union territories have also been
,changed. The United Provinces was the first state to have a new
,"name. It was renamed ‘Uttar Pradesh’ in 1950. In 1969, Madras"
,"was renamed21 ‘Tamil Nadu’. Similarly, in 1973, Mysore was"
,"renamed22 ‘Karnataka’. In the same year, Laccadive, Minicoy and"
,"Amindivi Islands were renamed23 ‘Lakshadweep’. In 1992, the"
,Union Territory of Delhi was redesignated as the National Capital
,Territory of Delhi (without being conferred the status of a full-
,"fledged state) by the 69th Constitutional Amendment Act, 1991.24"
,"In 2006, Uttaranchal was renamed25 as ‘Uttarakhand’. In the"
,"same year, Pondicherry was renamed26 as ‘Puducherry’. In 2011,"
,Orissa was renamed27 as ‘Odisha’.
,
,Table 5.4 Territory of India in 2019
,States                    Union Territories
,1. Andhra Pradesh                1. Andaman and Nicobar
,Islands
, 2. Arunachal Pradesh   2. Chandigarh
,3. Assam               3. Dadra and Nagar Haveli
,4. Bihar               4. Daman and Diu
,5. Chhattisgarh        5. Delhi (National Capital
,Territory)
,6. Goa                 6. Jammu and Kashmir
,7. Gujarat             7. Ladakh
,8. Haryana             8. Lakshadweep
,9. Himachal Pradesh    9. Puducherry
,10. Jharkhand
,11. Karnataka
,12. Kerala
,13. Madhya Pradesh
,14. Maharashtra
,15. Manipur
,16. Meghalaya
,17. Mizoram
,18. Nagaland
,19. Odisha
,20. Punjab
,21. Rajasthan
,22. Sikkim
,23. Tamil Nadu
,24. Telangana
,25. Tripura
,26. Uttarakhand
,27. Uttar Pradesh
,28. West Bengal
,Table 5.5 Laws Made by Parliament Under Article 3 of the
,Constitution
,Sl.    Acts                         Provisions
,No.
,1.     Assam (Alteration of         Altered the boundaries of
,"Boundaries) Act, 1951        the State of Assam by"
,ceding a strip of territory
,comprised in that State to
,Bhutan.
,"2.     Andhra State Act, 1953       Formed the first linguistic"
,"state, known as the State of"
,"Andhra, by taking out the"
,Telugu speaking areas from
,the State of Madras.
,Kurnool was the capital of
,Andhra State and the state
,high court was established
,at Guntur.
,3.     Himachal Pradesh and         Formed the new state of
,"Bilaspur (New State) Act,    Himachal Pradesh by"
,1954                         Uniting the existing States of
,Himachal Pradesh and
,Bilaspur.
,4.     Chandernagore (Merger)       Merged the territory of
,"Act, 1954                    Chandernagore (a former"
,enclave of French India) into
,the State of West Bengal.
,"5      States Reorganisation Act,   Made the extensive"
,1956                         changes in the boundaries
,of various states for the
,purpose of meeting the
,"linguistic, regional and local"
,demands. It created 14
,states and 6 union
,territories. The States were:
,"Andhra Pradesh, Assam,"
,"Bihar, Bombay, Jammu and"
,"Kashmir, Kerala, Madhya"
,"Pradesh, Madras, Mysore,"
,"Orissa, Punjab, Rajasthan,"
,Uttar Pradesh and West
,Bengal. The Union
,Territories were: Andaman
,"and Nicobar Islands, Delhi,"
,"Himachal Pradesh,"
,"Laccadive, Minicoy and"
,"Amindivi Islands, Manipur"
,and Tripura. It established
,the new state of Kerala by
,merging the Travancore-
,Cochin State with the
,Malabar district of Madras
,State and the Kasargode of
,South Canara (Dakshina
,Kannada). It merged the
,Teluguspeaking areas of
,Hyderabad State with the
,Andhra State to create the
,Andhra Pradesh State.
,"Further, it merged the"
,"Madhya Bharat State,"
,Vindhya Pradesh State and
,Bhopal State into the
,Madhya Pradesh State.
,"Similarly, it merged the"
,Saurashtra State and Kutch
,State into that of the
,Bombay State; the Coorg
,State into that of Mysore
,State; the Patiala and East
,Punjab States Union
,(Pepsu) into that of Punjab
,State; and the Ajmer State
,into that of Rajasthan State.
,"                                     Moreover, it created the new"
,"union territory of Laccadive,"
,Minicoy and Amindivi
,Islands from the territory
,detached from the Madras
,State.
,6     Bihar and West Bengal          Provided for the transfer of
,"(Transfer of Territories) Act, certain territories from the"
,1956                           State of Bihar to the State of
,West Bengal.
,7.    Rajasthan and Madhya           Provided for the transfer of
,Pradesh (Transfer of           certain territories from the
,"Territories) Act, 1959         State of Rajasthan to the"
,State of Madhya Pradesh.
,8.    Andhra Pradesh and             Provided for the alteration of
,Madras (Alteration of          boundaries of the States of
,"Boundaries) Act, 1959          Andhra Pradesh and"
,Madras.
,9.    Bombay Reorganisation          Formed the new State of
,"Act, 1960                      Gujarat (15th state) by taking"
,out the Gujarati speaking
,areas from the state of
,Bombay and renamed the
,other part of the Bombay
,State as Maharashtra State.
,The city of Ahmedabad was
,made the capital of Gujarat.
,10.   Acquired Territories           Provided for the merger into
,"(Merger) Act, 1960             the States of Assam, Punjab"
,and West Bengal of Certain
,territories acquired from
,Pakistan under the
,agreements entered into
,between the Governments
,"of India and Pakistan, in"
,1958 and 1959.
,"11.   State of Nagaland Act, 1962 Formed the new State of"
,Nagaland (16th state) by
,taking out the Naga Hills -
,Tuensang Area from the
,State of Assam. The Naga
,Hills - Tuensang Area was a
,tribal area of Assam
,specified in the Sixth
,Schedule of the
,Constitution.
,"12.   Punjab Reorganisation Act, Formed the new State of"
,1966                       Haryana (17th state) by
,taking out the Hindi
,speaking areas from the
,State of Punjab. It also
,made Chandigarh a new
,Union Territory as well as a
,common capital for both
,Punjab and Haryana.
,13.   Bihar and Uttar Pradesh       Provided for the alteration of
,(Alteration of Boundaries)    boundaries of the States of
,"Act, 1968                     Bihar and Uttar Pradesh."
,14.   Andhra Pradesh and            Provided for the transfer of
,Mysore (Transfer of           certain territory from the
,"Territory) Act, 1968          State of Mysore to the State"
,of Andhra Pradesh.
,15.   Madras State (Alteration of   Changed the name of the
,"Name) Act, 1968               State of Madras to that of"
,State of Tamil Nadu.
,16.   Assam Reorganisation          Formed an autonomous
,"(Meghalaya) Act, 1969         state (sub-state) known as"
,"Meghalaya, within the State"
,of Assam.
,17.   State of Himachal Pradesh     Elevated the Union Territory
,"Act, 1970                     of Himachal Pradesh to the"
,status of a state (18th state).
,18.   North-Eastern Areas           Elevated the two Union
,"(Reorganisation) Act, 1971    Territories of Manipur and"
,Tripura to the status of
,states (19th state and 20th
,state respectively). It also
,conferred full statehood on
,"Meghalaya (21st state),"
,which was previously a sub-
,state within the State of
,"Assam. Further, it formed"
,the two Union Territories of
,Mizoram and Arunachal
,Pradesh out of the territories
,of Assam.
,19.   Mysore State (Alteration of   Changed the name of the
,"Name) Act, 1973               state of Mysore to that of the"
,State of Karnataka.
,"20.   Laccadive, Minicoy and       Changed the name of the"
,Amindivi Islands (Alteration Union Territory of the
,"of Name) Act, 1973           Laccadive, Minicoy and"
,Amindivi Islands to that of
,the Union Territory of
,Lakshadweep.
,21.   Haryana and Uttar Pradesh Provided for the alteration of
,(Alteration of Boundaries) boundaries of the States of
,"Act, 1979                  Haryana and Uttar Pradesh."
,"22.   State of Mizoram Act, 1986 Elevated the Union Territory"
,of Mizoram to the status of a
,state (23rd state).
,23.   State of Arunachal Pradesh Elevated the Union Territory
,"Act, 1986                  of Arunachal Pradesh to the"
,status of a State (24th state).
,"24.   Goa, Daman and Diu            Formed the new State of"
,"Reorganisation Act, 1987      Goa (25th State) by"
,separating the territory of
,                                   Goa from the Union Territory
,"of Goa, Daman and Diu."
,25.   Madhya Pradesh               Formed the new state of
,"Reorganisation Act, 2000     Chhattisgarh (26th state) out"
,of the territories of the State
,of Madhya Pradesh.
,26.   Uttar Pradesh                Created the new State of
,"Reorganisation Act, 2000     Uttaranchal (27th state) by"
,carving out its territory from
,that of the territories of the
,state of Uttar Pradesh.
,"27.   Bihar Reorganisation Act,    Established the new State of"
,2000                         Jharkhand (28th state) by
,separating its territory from
,the territories of the State of
,Bihar.
,28.   Uttaranchal (Alteration of   Changed the name of the
,"Name) Act, 2006              State of Uttaranchal to that"
,of the State of Uttarakhand.
,29.   Pondicherry (Alteration of   Renamed the Union
,"Name) Act, 2006              Territory of Pondicherry as"
,the Union Territory of
,Puducherry.
,30.   Orissa (Alteration of Name) Changed the name of the
,"Act, 2011                   State of Orissa to that of the"
,State of Odisha.
,31.   Andhra Pradesh               Formed the new state of
,"Reorganisation Act, 2014     Telangana (29th state) by"
,carving out its territory from
,the territories of the state of
,Andhra Pradesh.
,32.   Jammu and Kashmir            Bifurcated the erstwhile
,"Reorganisation Act, 2019     state of Jammu and"
,Kashmir into two separate
,"Union territories, namely,"
,                                      the Union territory of Jammu
,& Kashmir and the Union
,territory of Ladakh.
,
,Table 5.6 Articles Related to Union and its Territory at a Glance
,Article No. Subject-matter
,1.       Name and territory of the Union
,2.       Admission or establishment of new states
,2A.       Sikkim to be associated with the Union–
,(Repealed)
,"3.       Formation of new states and alteration of areas,"
,boundaries or names of existing states
,4.       Laws made under Articles 2 and 3 to provide for
,the amendment of the First and the Fourth
,"Schedules and supplemental, incidental and"
,consequential matters.
,
,
,NOTES AND REFERENCES
,"1. Constituent Assembly Debates, volume 7, P, 43."
,"2. Till 2019, the erstwhile State of Jammu and Kashmir"
,enjoyed a special position by virtue of Article 370 of the
,Indian Constitution. It had its own separate State
,Constitution.
,3. Added by the 18th Constitutional Amendment Act of
,1966
,4. Babulal v. State of Bombay (1960).
,4a. This information is downloaded from the website of
,"Ministry of Law and Justice (Legislative Department),"
,Government of India.
,4b. Ibid.
,5. See Table 5.1.
,6. It had no chairman or convenor.
,7. See Table 5.3.
,"8. By the Bombay Reorganisation Act, 1960."
," 9. By the Goa, Daman and Diu Reorganisation Act, 1987."
,"10. By the State of Nagaland Act, 1962, with effect from"
,"December 1, 1963."
,"11. By Punjab Reorganisation Act, 1966."
,"12. By the State of Himachal Pradesh Act, 1970, with effect"
,"from January 25, 1971."
,"13. By the North-Eastern Areas (Reorganisation) Act, 1971,"
,"with effect from January 21, 1972."
,"14. By the State of Mizoram Act, 1986, with effect from"
,"February 20, 1987."
,"15. By the State of Arunachal Pradesh Act, 1986, with"
,"effect from February 20, 1987."
,"16. By the Goa, Daman and Diu Reorganisation Act, 1987."
,"17. By the Madhya Pradesh Reorganisation Act, 2000."
,"18. By the Uttar Pradesh Reorganisation Act, 2000."
,"19. By the Bihar Reorganisation Act, 2000."
,20. See Table 5.4.
,"21. By the Madras State (Alteration of Name) Act, 1968,"
,"with effect from January 14, 1969."
,"22. By the Mysore State (Alteration of Name) Act, 1973."
,"23. By the Laccadive, Minicoy and Amindivi Islands"
,"(Alteration of Name) Act, 1973."
,"24. With effect from February 1, 1992."
,"25. By the Uttaranchal (Alteration of Name) Act, 2006."
,"26. By the Pondicherry (Alteration of Name) Act, 2006."
,"27. By the Orissa (Alteration of Name) Act, 2011."
, 6      Citizenship
,
,
,MEANING AND SIGNIFICANCE
,"Like any other modern state, India has two kinds of people–citizens and"
,aliens. Citizens are full members of the Indian State and owe allegiance to
,"it. They enjoy all civil and political rights. Aliens, on the other hand, are the"
,"citizens of some other state and hence, do not enjoy all the civil and"
,political rights. They are of two categories–friendly aliens or enemy aliens.
,Friendly aliens are the subjects of those countries that have cordial
,"relations with India. Enemy aliens, on the other hand, are the subjects of"
,that country that is at war with India. They enjoy lesser rights than the
,"friendly aliens, eg, they do not enjoy protection against arrest and"
,detention (Article 22).
,The Constitution confers the following rights and privileges on the
,citizens of India (and denies the same to aliens):
,"1. Right against discrimination on grounds of religion, race, caste, sex"
,or place of birth (Article 15).
,2. Right to equality of opportunity in the matter of public employment
,(Article 16).
,"3. Right to freedom of speech and expression, assembly, association,"
,"movement, residence and profession (Article 19)."
,4. Cultural and educational rights (Articles 29 and 30).
,5. Right to vote in elections to the Lok Sabha and state legislative
,assembly.
,6. Right to contest for the membership of the Parliament and the state
,legislature.
,"7. Eligibility to hold certain public offices, that is, President of India,"
,"Vice-President of India, judges of the Supreme Court and the high"
,"courts, Governor of states, Attorney General of India and Advocate"
,General of states.
,"Along with the above rights, the citizens also owe certain duties"
,"towards the Indian State, as for example, paying taxes, respecting the"
,"national flag and national anthem, defending the country and so on."
,In India both a citizen by birth as well as a naturalised citizen are
,"eligible for the office of President while in USA, only a citizen by birth and"
,not a naturalised citizen is eligible for the office of President.
, CONSTITUTIONAL PROVISIONS
,The Constitution deals with the citizenship from Articles 5 to 11 under Part
,"II. However, it contains neither any permanent nor any elaborate"
,provisions in this regard. It only identifies the persons who became
,"citizens of India at its commencement (i.e., on January 26, 1950). It does"
,not deal with the problem of acquisition or loss of citizenship subsequent
,to its commencement. It empowers the Parliament to enact a law to
,provide for such matters and any other matter relating to citizenship.
,"Accordingly, the Parliament has enacted the Citizenship Act (1955), which"
,has been amended from time to time.
,"According to the Constitution, the following four categories of persons"
,"became the citizens of India at its commencement i.e., on January 26,"
,1950:
,1. A person who had his domicile in India and also fulfilled any one of
,"the three conditions, viz., if he was born in India; or if either of his"
,parents was born in India; or if he has been ordinarily resident in
,India for five years immediately before the commencement of the
,"Constitution, became a citizen of India."
,2. A person who migrated to India from Pakistan became an Indian
,citizen if he or either of his parents or any of his grandparents was
,born in undivided India and also fulfilled any one of the two
,"conditions viz., in case he migrated to India before July 19, 19481 ,"
,he had been ordinarily resident in India since the date of his
,"migration; or in case he migrated to India on or after July 19, 1948,"
,"he had been registered as a citizen of India. But, a person could be"
,so registered only if he had been resident in India for six months
,preceding the date of his application for registration.
,"3. A person who migrated to Pakistan from India after March 1, 1947,"
,but later returned to India for resettlement could become an Indian
,"citizen. For this, he had to be resident in India for six months"
,preceding the date of his application for registration2 .
,"4. A person who, or any of whose parents or grandparents, was born"
,in undivided India but who is ordinarily residing outside India shall
,become an Indian citizen if he has been registered as a citizen of
,India by the diplomatic or consular representative of India in the
,"country of his residence, whether before or after the commencement"
,"of the Constitution. Thus, this provision covers the overseas Indians"
,who may want to acquire Indian citizenship.
,"To sum up, these provisions deal with the citizenship of (a) persons"
,domiciled in India; (b) persons migrated from Pakistan; (c) persons
,migrated to Pakistan but later returned; and (d) persons of Indian origin
,residing outside India.
,The other constitutional provisions with respect to the citizenship are as
,follows:
,1. No person shall be a citizen of India or be deemed to be a citizen of
,"India, if he has voluntarily acquired the citizenship of any foreign"
,state.
,2. Every person who is or is deemed to be a citizen of India shall
,"continue to be such citizen, subject to the provisions of any law"
,made by Parliament.
,3. Parliament shall have the power to make any provision with respect
,to the acquisition and termination of citizenship and all other matters
,relating to citizenship.
," CITIZENSHIP ACT, 1955"
,The Citizenship Act (1955) provides for acquisition and loss of citizenship
,after the commencement of the Constitution.
,"Originally, the Citizenship Act (1955) also provided for the"
,"Commonwealth Citizenship. But, this provision was repealed by the"
,"Citizenship (Amendment) Act, 2003."
,
,Acquisition of Citizenship
,"The Citizenship Act of 1955 prescribes five ways of acquiring citizenship,"
,"viz, birth, descent, registration, naturalisation and incorporation of"
,territory:
,
,1. By Birth
,"A person born in India on or after January 26, 1950 but before July 1,"
,1987 is a citizen of India by birth irrespective of the nationality of his
,parents.
,"A person born in India on or after July 1, 1987 is considered as a"
,citizen of India only if either of his parents is a citizen of India at the time
,of his birth.
,"Further, those born in India on or after December 3, 2004 are"
,considered citizens of India only if both of their parents are citizens of
,India or one of whose parents is a citizen of India and the other is not an
,illegal migrant at the time of their birth.
,The children of foreign diplomats posted in India and enemy aliens
,cannot acquire Indian citizenship by birth.
,
,2. By Descent
,"A person born outside India on or after January 26, 1950 but before"
,"December 10, 1992 is a citizen of India by descent, if his father was a"
,citizen of India at the time of his birth.
,"A person born outside India on or after December 10, 1992 is"
,considered as a citizen of India if either of his parents is a citizen of India
,at the time of his birth.
,"December 3, 2004 onwards, a person born outside India shall not be a"
,"citizen of India by descent, unless his birth is registered at an Indian"
,consulate within one year of the date of birth or with the permission of the
,"Central Government, after the expiry of the said period. An application, for"
,"registration of the birth of a minor child, to an Indian consulate shall be"
,accompanied by an undertaking in writing from the parents of such minor
,child that he or she does not hold the passport of another country.
,"   Further, a minor who is a citizen of India by virtue of descent and is"
,also a citizen of any other country shall cease to be a citizen of India if he
,does not renounce the citizenship or nationality of another country within
,six months of his attaining full age.
,
,3. By Registration
,"The Central Government may, on an application, register as a citizen of"
,India any person (not being an illegal migrant) if he belongs to any of the
,"following categories, namely:-"
,(a) a person of Indian origin who is ordinarily resident in India for seven
,years before making an application for registration;
,(b) a person of Indian origin who is ordinarily resident in any country or
,place outside undivided India;
,(c) a person who is married to a citizen of India and is ordinarily resident
,in India for seven years before making an application for registration;
,(d) minor children of persons who are citizens of India;
,(e) a person of full age and capacity whose parents are registered as
,citizens of India;
,"(f) a person of full age and capacity who, or either of his parents, was"
,"earlier citizen of independent India, and is ordinarily resident in India"
,for twelve months immediately before making an application for
,registration;
,(g) a person of full age and capacity who has been registered as an
,"overseas citizen of India cardholder for five years, and who is"
,ordinarily resident in India for twelve months before making an
,application for registration.
,"A person shall be deemed to be of Indian origin if he, or either of his"
,"parents, was born in undivided India or in such other territory which"
,"became part of India after the August 15, 1947."
,All the above categories of persons must take an oath of allegiance
,before they are registered as citizens of India2a.
,
,4. By Naturalisation
,"The Central Government may, on an application, grant a certificate of"
,naturalisation to any person (not being an illegal migrant) if he possesses
,the following qualifications:
,(a) that he is not a subject or citizen of any country where citizens of
,India are prevented from becoming subjects or citizens of that
,country by naturalisation;
,"(b) that, if he is a citizen of any country, he undertakes to renounce the"
,citizenship of that country in the event of his application for Indian
,citizenship being accepted;
, (c) that he has either resided in India or been in the service of a
,"Government in India or partly the one and partly the other,"
,throughout the period of twelve months immediately preceding the
,date of the application;
,(d) that during the fourteen years immediately preceding the said period
,"of twelve months, he has either resided in India or been in the"
,"service of a Government in India, or partly the one and partly the"
,"other, for periods amounting in the aggregate to not less than eleven"
,years;
,(e) that he is of good character;
,(f) that he has an adequate knowledge of a language specified in the
,Eighth Schedule to the Constitution3 ; and
,(g) that in the event of a certificate of naturalisation being granted to
,"him, he intends to reside in India, or to enter into or continue in,"
,service under a Government in India or under an international
,"organisation of which India is a member or under a society, company"
,"or body of persons established in India. However, the Government of"
,India may waive all or any of the above conditions for naturalisation
,in the case of a person who has rendered distinguished service to
,"the science, philosophy, art, literature, world peace or human"
,progress. Every naturalised citizen must take an oath of allegiance to
,the Constitution of India.
,
,5. By Incorporation of Territory
,"If any foreign territory becomes a part of India, the Government of India"
,specifies the persons who among the people of the territory shall be the
,citizens of India. Such persons become the citizens of India from the
,"notified date. For example, when Pondicherry became a part of India, the"
,"Government of India issued the Citizenship (Pondicherry) Order (1962),"
,under the Citizenship Act (1955).
,
,6. Special Provisions as to Citizenship of Persons Covered by the
,Assam Accord
,"The Citizenship (Amendment) Act, 1985, added the following special"
,provisions as to citizenship of persons covered by the Assam Accord
,(which related to the foreigners’ issue):
,(a) All persons of Indian origin who came to Assam before the January
,"1, 1966 from Bangladesh and who have been ordinarily residents in"
,Assam since the date of their entry into Assam shall be deemed to
,"be citizens of India as from the January 1, 1966."
,(b) Every person of Indian origin who came to Assam on or after the
,"January 1, 1966 but before the March 25, 1971 from Bangladesh and"
,who has been ordinarily resident in Assam since the date of his entry
,     into Assam and who has been detected to be a foreigner shall
,register himself. Such a registered person shall be deemed to be a
,citizen of India for all purposes as from the date of expiry of a period
,"of ten years from the date of detection as a foreigner. But, in the"
,"intervening period of ten years, he shall have the same rights and"
,"obligations as a citizen of India, excepting the right to vote."
,
,Loss of Citizenship
,The Citizenship Act (1955) prescribes three ways of losing citizenship
,"whether acquired under the Act or prior to it under the Constitution, viz,"
,"renunciation, termination and deprivation:"
,
,1. By Renunciation
,Any citizen of India of full age and capacity can make a declaration
,"renouncing his Indian citizenship. Upon the registration of that declaration,"
,"that person ceases to be a citizen of India. However, if such a declaration"
,"is made during a war in which India is engaged, its registration shall be"
,withheld by the Central Government.
,"Further, when a person renounces his Indian citizenship, every minor"
,"child of that person also loses Indian citizenship. However, when such a"
,"child attains the age of eighteen, he may resume Indian citizenship."
,
,2. By Termination
,"When an Indian citizen voluntarily (consciously, knowingly and without"
,"duress, undue influence or compulsion) acquires the citizenship of"
,"another country, his Indian citizenship automatically terminates. This"
,"provision, however, does not apply during a war in which India is"
,engaged.
,
,3. By Deprivation
,It is a compulsory termination of Indian citizenship by the Central
,"government, if:"
,(a) the citizen has obtained the citizenship by fraud:
,(b) the citizen has shown disloyalty to the Constitution of India:
,(c) the citizen has unlawfully traded or communicated with the enemy
,during a war;
,"(d) the citizen has, within five years after registration or naturalisation,"
,been imprisoned in any country for two years; and
,(e) the citizen has been ordinarily resident out of India for seven years
,continuously.4
, SINGLE CITIZENSHIP
,Though the Indian Constitution is federal and envisages a dual polity
,"(Centre and states), it provides for only a single citizenship, that is, the"
,Indian citizenship. The citizens in India owe allegiance only to the Union.
,There is no separate state citizenship. The other federal states like USA
,"and Switzerland, on the other hand, adopted the system of double"
,citizenship.
,"In USA, each person is not only a citizen of USA but also of the"
,"particular state to which he belongs. Thus, he owes allegiance to both and"
,enjoys dual sets of rights–one set conferred by the national government
,and another by the state government. This system creates the problem of
,"discrimination, that is, a state may discriminate in favour of its citizens in"
,"matters like right to vote, right to hold public offices, right to practice"
,professions and so on. This problem is avoided in the system of single
,citizenship prevalent in India.
,"In India, all citizens irrespective of the state in which they are born or"
,reside enjoy the same political and civil rights of citizenship all over the
,"country and no discrimination is made between them. However, this"
,"general rule of absence of discrimination is subject to some exceptions,"
,"viz,"
,1. The Parliament (under Article 16) can prescribe residence within a
,state or union territory as a condition for certain employments or
,"appointments in that state or union territory, or local authority or"
,"other authority within that state or union territory. Accordingly, the"
,Parliament enacted the Public Employment (Requirement as to
,"Residence) Act, 1957, and thereby authorised the Government of"
,India to prescribe residential qualification only for appointment to
,"non-Gazetted posts in Andhra Pradesh, Himachal Pradesh, Manipur"
,"and Tripura. As this Act expired in 1974, there is no such provision"
,for any state except Andhra Pradesh5 and Telangana5a.
,2. The Constitution (under Article 15) prohibits discrimination against
,"any citizen on grounds of religion, race, caste, sex or place of birth"
,and not on the ground of residence. This means that the state can
,provide special benefits or give preference to its residents in matters
,that do not come within the purview of the rights given by the
,"Constitution to the Indian citizens. For example, a state may offer"
,concession in fees for education to its residents.
,3. The freedom of movement and residence (under Article 19) is
,subjected to the protection of interests of any schedule tribe. In other
,"words, the right of outsiders to enter, reside and settle in tribal areas"
,"is restricted. Of course, this is done to protect the distinctive culture,"
,"      language, customs and manners of schedule tribes and to"
,safeguard their traditional vocation and property against exploitation.
,"4. Till 2019, the legislature of the erstwhile state of Jammu and"
,Kashmir was empowered to:
,(a) define the persons who are permanent residents of the state;
,and
,(b) confer any special rights and privileges on such permanent
,residents as respects:
,(i) employment under the state government;
,(ii) acquisition of immovable property in the state;
,(iii) settlement in the state; and
,(iv) right to scholarships and such other forms of aid provided by th
,government.
,The above provision was based on Article 35-A of the Constitution of
,India. This Article was inserted in the constitution by “The Constitution
,"(Application to Jammu and Kashmir) Order, 1954”. This order was issued"
,by the President under Article 370 of the Constitution which had provided
,"a special status to the erstwhile state of Jammu and Kashmir. In 2019,"
,this special status was abolished by a new presidential order known as
,"“The Constitution (Application to Jammu and Kashmir) Order, 2019”. This"
,order superseded the earlier 1954 order.
,"The Constitution of India, like that of Canada, has introduced the"
,system of single citizenship and provided uniform rights (except in few
,cases) for the people of India to promote the feeling of fraternity and unity
,"among them and to build an integrated Indian nation. Despite this, India"
,"has been witnessing the communal riots, class conflicts, caste wars,"
,"linguistic clashes and ethnic disputes. Thus, the cherished goal of the"
,founding fathers and the Constitution-makers to build an united and
,integrated Indian nation has not been fully realised.
, OVERSEAS CITIZENSHIP OF INDIA
,
,"In September 2000, the Government of India (Ministry of External Affairs)"
,had set-up a High Level Committee on the Indian Diaspora under the
,Chairmanship of L.M. Singhvi. The mandate of the Committee was to
,make a comprehensive study of the global Indian Diaspora and to
,recommend measures for a constructive relationship with them.
,"The committee submitted its report in January, 2002. It recommended"
,the amendment of the Citizenship Act (1955) to provide for grant of dual
,citizenship to the Persons of Indian Origin (PIOs) belonging to certain
,specified countries.
,"Accordingly, the Citizenship (Amendment) Act, 2003, made provision"
,for acquisition of Overseas Citizenship of India (OCI) by the PIOs of 16
,specified countries other than Pakistan and Bangladesh. It also omitted all
,"provisions recognizing, or relating to the Commonwealth Citizenship from"
,the Principal Act.
,"Later, the Citizenship (Amendment) Act, 2005, expanded the scope of"
,grant of OCI for PIOs of all countries except Pakistan and Bangladesh as
,long as their home countries all dual citizenship under their local laws. It
,must be noted here that the OCI is not actually a dual citizenships as the
,Indian Constitution forbids dual citizenship or dual nationality (Article 9).
,"Again, the Citizenship (Amendment) Act, 2015, has modified the"
,provisions pertaining to the OCI in the Principal Act. It has introduced a
,new scheme called “Overseas Citizen of India Cardholder” by merging the
,PIO card scheme and the OCI card scheme.
,"The PIO card scheme was introduced on August 19, 2002 and"
,"thereafter the OCI card scheme was introduced w.e.f. December 2, 2005."
,Both the schemes were running in parallel even though the OCI card
,scheme had become more popular. This was causing unnecessary
,confusion in the minds of applicants. Keeping in view some problems
,"being faced by applicants and to provide enhanced facilities to them, the"
,Government of India decided to formulate one single scheme after
,"merging the PIO and OCI schemes, containing positive attributes of both."
,"Hence, for achieving this objective, the Citizenship (Amendment)"
,"Act, 2015, was enacted. The PIO scheme was rescinded w.e.f. January"
,"9, 2015 and it was also notified that all existing PIO cardholders shall be"
,"deemed to be OCI cardholders w.e.f. January 9, 2015.7"
,"The Citizenship (Amendment) Act, 2015, replaced the nomenclature of"
,“Overseas Citizen of India” with that of “Overseas Citizen of India
,Cardholder” and made the following provisions in the Principal Act :
,I. Registration of Overseas Citizen of India Cardholder
,"(1) The Central Government may, on an application made in this behalf,"
,register as an overseas citizen of India cardholder–
,"(a) any person of full age and capacity,–"
,"(i) who is a citizen of another country, but was a citizen of India"
,"time of, or at any time after the commencement of the Constitu"
,"(ii) who is a citizen of another country, but was eligible to bec"
,citizen of India at the time of the commencement of the Cons
,or
,"(iii) who is a citizen of another country, but belonged to a territo"
,"became part of India after the 15th August, 1947; or"
,(iv) who is a child or a grandchild or a great grandchild of such a
,or
,"(b) a person, who is a minor child of a person mentioned in clause"
,(a); or
,"(c) a person, who is a minor child, and whose both parents are"
,citizens of India or one of the parents is a citizen of India; or
,(d) spouse of foreign origin of a citizen of India or spouse of foreign
,origin of an Overseas Citizen of India Cardholder and whose
,marriage has been registered and subsisted for a continuous
,period of not less than two years immediately preceding the
,presentation of the application.
,"No person, who or either of whose parents or grandparents or great"
,"grandparents is or had been a citizen of Pakistan, Bangladesh or"
,"such other country as the Central Government may, specify, shall be"
,eligible for registration as an Overseas Citizen of India Cardholder.
,(2) The Central Government may specify the date from which the
,existing persons of Indian origin cardholders shall be deemed to be
,overseas citizens of India cardholders.
,"(3) Notwithstanding anything contained in point (1), the Central"
,"Government may, if it is satisfied that special circumstances exist,"
,"after recording the circumstances in writing, register a person as an"
,Overseas Citizen of India Cardholder.
,
,II. Conferment of Rights on Overseas Citizen of India
,Cardholder
,(1) An overseas citizen of India cardholder shall be entitled to such
,"rights, as the Central Government may specify in this behalf."
,(2) An overseas citizen of India cardholder shall not be entitled to the
,following rights (which are conferred on a citizen of India)–
,    (a) He shall not be entitled to the right to equality of opportunity in
,matters of public employment.
,(b) He shall not be eligible for election as President.
,(c) He shall not be eligible for election as Vice-President.
,(d) He shall not be eligible for appointment as a Judge of the
,Supreme Court.
,(e) He shall not be eligible for appointment as a Judge of the High
,Court.
,(f) He shall not be entitled for registration as a voter.
,(g) He shall not be eligible for being a member of the House of the
,People or of the Council of States.
,(h) He shall not be eligible for being a member of the State
,Legislative Assembly or the State Legislative Council.
,(i) He shall not be eligible for appointment to public services and
,posts in connection with affairs of the Union or of any State
,except for appointment in such services and posts as the Central
,Government may specify.
,
,III. Renunciation of Overseas Citizen of India Card
,(1) If any overseas citizen of India cardholder makes in prescribed
,manner a declaration renouncing the card registering him as an
,"overseas citizen of India cardholder, the declaration shall be"
,"registered by the Central Government, and upon such registration,"
,that person shall cease to be an overseas citizen of India cardholder.
,(2) Where a person ceases to be an overseas citizen of India
,"cardholder, the spouse of foreign origin of that person, who has"
,obtained overseas citizen of India card and every minor child of that
,person registered as an overseas citizen of India cardholder shall
,thereupon cease to be an overseas citizen of India cardholder.
,
,IV. Cancellation of Registration as Overseas Citizen of India
,Cardholder
,The Central Government may cancel the registration of a person as an
,"overseas citizen of India cardholder, if it is satisfied that–"
,(a) the registration as an overseas citizen of India cardholder was
,"obtained by means of fraud, false representation or the concealment"
,of any material fact; or
,(b) the overseas citizen of India cardholder has shown disaffection
,towards the Constitution of India; or
,"(c) the overseas citizen of India cardholder has, during any war in which"
,"India may be engaged, unlawfully traded or communicated with an"
,      enemy; or
,"(d) the overseas citizen of India cardholder has, within five years after"
,"registration, been sentenced to imprisonment for a term of not less"
,than two years; or
,(e) it is necessary so to do in the interests of the sovereignty and
,"integrity of India, the security of India, friendly relations of India with"
,"any foreign country, or in the interests of the general public; or"
,(f) the marriage of an overseas citizen of India cardholder–
,(i) has been dissolved by a competent court of law or otherwise; or
,"(ii) has not been dissolved but, during the subsistence of such marria"
,he has solemnised marriage with any other person.
,
,"Table 6.1 Comparing NRI, PIO and OCI Cardholder8"
,Sl. Elements of          Non-      Person of     Overseas Citizen of
,No. Comparison         Resident      Indian    India (OCI) Cardholder
,Indian (NRI) Origin (PIO)
,1.   Who ?           An     Indian   A person        A person registered as
,citizen who     who        or   Overseas Citizen of
,is ordinarily   whose any       India (OCI) Cardholder
,residing        of              under the Citizenship
,"outside         ancestors       Act, 1955"
,India    and    was       an
,holds      an   Indian
,Indian          national
,Passport        and who is
,presently
,holding
,another
,country’s
,citizenship /
,nationality
,i.e. he/she
,is holding
,foreign
,passport
,2.   Who       is --                 --              Following categories of
,eligible?                                       foreign nationals are
,eligible for registration
,as Overseas Citizen of
,India (OCI) Cardholder:-
,(1) Who was a citizen of
,"India at the time of,"
,or at any time after
,the commencement
,of the Constitution
,i.e. 26.01.1950; or
,(2) who was eligible to
,become a citizen of
,India on 26.01.1950;
,or
,(3) who belonged to a
,territory that became
,part of India after
,15.08.1947; or
,(4) who is a child or a
,grandchild or a great
,grandchild of such a
,citizen; or
,(5) who is a minor child
,of such persons
,mentioned above; or
,(6) who is a minor child
,and whose both
,parents are citizens
,of India or one of the
,parents is a citizen
,of India; or
,(7) spouse of foreign
,origin of a citizen of
,India or spouse of
,foreign origin of an
,Overseas Citizen of
,India       Cardholder
,registered under the
,"Citizenship        Act,"
,1955 and whose
,marriage has been
,registered         and
,subsisted      for   a
,continuous period of
,not less than two
,years immediately
,preceding          the
,                                presentation of the
,application.
,3.   How     can --    --   Eligible persons to apply
,one get ?              online.
,4.   Where     to --   --   Till such time the online
,apply ?                payment         facility     is
,"introduced, the following"
,instructions shall be
,followed:-
,(i) The print out of the
,online       application
,"form, completed in"
,"all respects, along"
,"with        enclosures,"
,demand draft and
,photograph              in
,duplicate should be
,submitted to the
,Indian Mission/Post
,having       jurisdiction
,over the country of
,which the applicant
,is a citizen or if
,he/she is not living in
,the      country        of
,"his/her citizenship,"
,to      the        Indian
,Mission/ Post having
,jurisdiction over the
,country of which the
,applicant               is
,ordinarily a resident.
,(ii) If the applicant is
,"residing in India, the"
,print out of the
,online       application
,"form, completed in"
,"all respects, along"
,"with        enclosures,"
,demand draft and
,photographs             in
,duplicate should be
,                                                      submitted to the
,Foreigners Regional
,Registration Offices
,(FRROs) according
,to their jurisdictional
,control.
,5.   Fees ?           --            --            (a) in      case     of
,application
,submitted in Indian
,Mission/       Post
,abroad-US ₹275 or
,equivalent in local
,currency.
,(b) in      case     of
,application
,submitted in India-
,"Rs.15,000/-"
,"6.   Which            --            --            No person, who or either"
,nationals                                    of whose parents or
,are                                          grandparents or great
,ineligible ?                                 grandparents is or had
,been a citizen of
,"Pakistan, Bangladesh or"
,such other country as
,the Central Government
,"may specify, shall be"
,eligible for registration
,as an Overseas Citizen
,of India Cardholder.
,7.   What             All benefits No specific (i) Multiple entry lifelong
,benefits         as available benefits        visa for visiting India
,one         is   to     Indian                for any purpose
,entitled to ?    citizens                     (However            OCI
,subject     to               Cardholders         will
,notifications                require a special
,issued     by                permission            to
,the                          undertake research
,Government                   work in India for
,from time to                 which they may
,time                         submit              the
,application to the
,      Indian Mission/ Post/
,FRRO concerned).
,(ii) Exemption             from
,registration          with
,Foreigners Regional
,Registration Officer
,(FRRO)                  or
,Foreigners
,Registration Officer
,(FRO) for any length
,of stay in India.
,(iii) Parity with Non-
,Resident          Indians
,(NRIs) in respect of
,all facilities available
,"to them in economic,"
,"financial,            and"
,educational         fields
,except in matters
,relating       to      the
,acquisition              of
,agricultural            or
,plantation
,properties.
,(iv) Registered
,Overseas Citizen of
,India        Cardholder
,shall be treated at
,par       with       Non-
,Resident Indians in
,the matter of inter-
,country adoption of
,Indian children.
,(v) Registered
,Overseas Citizen of
,India        Cardholder
,shall be treated at
,par with resident
,Indian nationals in
,the matter of tariffs
,in air fares in
,domestic sectors in
,India.
,(vi) Registered
,Overseas Citizen of
,India       Cardholder
,shall be charged the
,same entry fee as
,domestic          Indian
,visitors      to    visit
,national parks and
,wildlife sanctuaries
,in India.
,(vii) Parity with Non-
,Resident         Indians
,(NRI) in respect of:-
,(A) entry fees to be
,charged          for
,visiting        the
,national
,"monuments,"
,historical sites
,and museums in
,India.
,(B) pursuing         the
,following
,professions       in
,"India,            in"
,pursuance of the
,provisions
,contained in the
,"relevant      Acts,"
,namely:-
,"(a) doctors,"
,"dentists,"
,nurses and
,pharmacists;
,(b) advocates;
,(c) architects;
,and
,(d) chartered
,accountants.
,(C) to      appear
,for the All
,India     Pre-
,Medical Test
,                                                or       such
,other tests
,to      make
,them eligible
,for
,admission in
,pursuance
,of        the
,provisions
,contained in
,the relevant
,Acts.
,(viii) State Governments
,should ensure that
,the OCI Cardholder
,registration booklets
,of OCI Cardholders
,are treated as their
,identification for any
,services rendered to
,them. In case proof
,of     residence     is
,"required, Overseas"
,Citizens of India
,Cardholder may give
,an affidavit stating
,that a particular/
,specific      address
,may be treated as
,their     place      of
,residence in India.
,8.   Does         No   Yes       Can visit India without
,he/she                      visa for life long.
,require visa
,for visiting
,India ?
,9.   Is   he/she No    Yes if the No
,required to       period   of
,register          stay is for
,with     the      more than
,local police      180 days
,      authorities
,in India ?
,10. What          All Activities    Activity as     All   activities except
,activities                      per      the    research work for which
,can        be                   type of visa    special permission is
,undertaken                      obtained        required from the Indian
,in India ?                                      Mission/Post/     FRRO
,concerned.
,11. How      can He/she      is     As per the      As per the Citizenship
,"one acquire an      Indian      Citizenship     Act,1955,      a    person"
,"Indian       citizen            Act, 1955,      registered as an OCI"
,citizenship?                    he/she has      cardholder for 5 years
,to         be   and who is ordinarily
,ordinarily      resident in India for
,resident in     twelve months before
,India for a     making an application
,period of 7     for registration is eligible
,years           for grant of Indian
,before          citizenship.
,making an
,application
,for
,registration.
,
,Table 6.2 Articles Related to Citizenship at a Glance
,Article No.      Subject Matter
,5.          Citizenship at the commencement of the Constitution
,6.          Rights of citizenship of certain persons who have
,migrated to India from Pakistan
,7.          Rights of citizenship of certain migrants to Pakistan
,8.          Rights of citizenship of certain persons of Indian origin
,residing outside India
,9.          Persons voluntarily acquiring citizenship of a foreign
,State not to be citizens
,10.          Continuance of the rights of citizenship
,11.         Parliament to regulate the right of citizenship by law
,NOTES AND REFERENCES
,"1. On this date, the permit system for such migration was"
,introduced.
,"2. This provision refers to migration after 1 March, 1947 but before"
,"26 January, 1950. The question of citizenship of persons who"
,"migrated after 26 January, 1950, has to be decided under the"
,"provisions of the Citizenship Act, 1955."
,2a. The form of the oath is as follows:
,"I, A/B................... do solemnly affirm (or swear) that I will bear"
,true faith and allegiance to the Constitution of India as by law
,"established, and that I will faithfully observe the laws of India"
,and fulfill my duties as a citizen of India.
,3. The 8th Schedule of the Constitution recognises presently 22
,(originally 14) languages.
,"4. This will not apply if he is a student abroad, or is in the service"
,of a government in India or an international organisation of
,"which India is a member, or has registered annually at an Indian"
,consulate his intention to retain his Indian citizenship.
,5. By virtue of Article 371-D inserted by the 32nd Constitutional
,"Amendment Act, 1973."
,5a. Article 371D has been extended to the State of Telangana by
,"the Andhra Pradesh Reorganisation Act, 2014."
,"6. Further, the Jammu and Kashmir Reorganisation Act, 2019,"
,bifurcated the erstwhile State of Jammu and Kashmir into two
,"separate Union territories, namely, the Union territory of Jammu"
,& Kashmir and the Union territory of Ladakh.
,"7. Annual Report 2015–16, Ministry of Home Affairs, Government"
,"of India, p. 262."
,8. This Table is downloaded from the website of Ministry of Home
,"Affairs, Government of India."
, 7      Fundamental Rights
,
,
,
,
,T
,he Fundamental Rights are enshrined in Part III of the
,"Constitution from Articles 12 to 35. In this regard, the framers of"
,the Constitution derived inspiration from the Constitution of
,"USA (i.e., Bill of Rights)."
,Part III of the Constitution is rightly described as the Magna Carta
,of India.1 It contains a very long and comprehensive list of ‘justiciable’
,"Fundamental Rights. In fact, the Fundamental Rights in our"
,Constitution are more elaborate than those found in the Constitution of
,"any other country in the world, including the USA."
,The Fundamental Rights are guaranteed by the Constitution to all
,persons without any discrimination. They uphold the equality of all
,"individuals, the dignity of the individual, the larger public interest and"
,unity of the nation.
,The Fundamental Rights are meant for promoting the ideal of
,political democracy. They prevent the establishment of an
,"authoritarian and despotic rule in the country, and protect the liberties"
,and freedoms of the people against the invasion by the State. They
,operate as limitations on the tyranny of the executive and arbitrary
,"laws of the legislature. In short, they aim at establishing ‘a government"
,of laws and not of men’.
,The Fundamental Rights are named so because they are
,"guaranteed and protected by the Constitution, which is the"
,fundamental law of the land. They are ‘fundamental’ also in the sense
,"that they are most essential for the all-round development (material,"
,"intellectual, moral and spiritual) of the individuals."
,"Originally, the Constitution provided for seven Fundamental Rights"
,"viz,"
,1. Right to equality (Articles 14–18)
,2. Right to freedom (Articles 19–22)
,3. Right against exploitation (Articles 23–24)
,4. Right to freedom of religion (Articles 25–28)
,5. Cultural and educational rights (Articles 29–30)
,6. Right to property (Article 31)
,7. Right to constitutional remedies (Article 32)
,"   However, the right to property was deleted from the list of"
,"Fundamental Rights by the 44th Amendment Act, 1978. It is made a"
,legal right under Article 300-A in Part XII of the Constitution. So at
,"present, there are only six Fundamental Rights."
, FEATURES OF FUNDAMENTAL RIGHTS
,
,The Fundamental Rights guaranteed by the Constitution are
,characterised by the following:
,1. Some of them are available only to the citizens while others are
,"available to all persons whether citizens, foreigners or legal"
,persons like corporations or companies.
,2. They are not absolute but qualified. The state can impose
,"reasonable restrictions on them. However, whether such"
,restrictions are reasonable or not is to be decided by the courts.
,"Thus, they strike a balance between the rights of the individual"
,"and those of the society as a whole, between individual liberty"
,and social control.
,3. All of them are available against the arbitrary action of the state.
,"However, some of them are also available against the action of"
,private individuals.
,"4. Some of them are negative in character, that is, place limitations"
,"on the authority of the State, while others are positive in nature,"
,conferring certain privileges on the persons.
,"5. They are justiciable, allowing persons to move the courts for"
,"their enforcement, if and when they are violated."
,6. They are defended and guaranteed by the Supreme Court.
,"Hence, the aggrieved person can directly go to the Supreme"
,"Court, not necessarily by way of appeal against the judgement of"
,the high courts.
,7. They are not sacrosanct or permanent. The Parliament can
,curtail or repeal them but only by a constitutional amendment act
,"and not by an ordinary act. Moreover, this can be done without"
,affecting the ‘basic structure’ of the Constitution. (The
,amenability of fundamental rights is explained in detail in
,Chapter 11).
,8. They can be suspended during the operation of a National
,Emergency except the rights guaranteed by Articles 20 and 21.
,"Further, the six rights guaranteed by Article 19 can be"
,suspended only when emergency is declared on the grounds of
,"war or external aggression (i.e., external emergency) and not on"
,"the ground of armed rebellion (i.e., internal emergency). (The"
,suspension of fundamental rights during a national Emergency is
,explained in detail in Chapter 16).
, 9. Their scope of operation is limited by Article 31A (saving of laws
,"providing for acquisition of estates, etc.), Article 31B (validation"
,of certain acts and regulations included in the 9th Schedule) and
,Article 31C (saving of laws giving effect to certain directive
,principles).
,"10. Their application to the members of armed forces, para-military"
,"forces, police forces, intelligence agencies and analogous"
,services can be restricted or abrogated by the Parliament (Article
,33).
,11. Their application can be restricted while martial law is in force in
,any area. Martial law means ‘military rule’ imposed under
,abnormal circumstances to restore order (Article 34). It is
,different from the imposition of national emergency.
,12. Most of them are directly enforceable (self-executory) while a
,few of them can be enforced on the basis of a law made for
,giving effect to them. Such a law can be made only by the
,Parliament and not by state legislatures so that uniformity
,throughout the country is maintained (Article 35).
, DEFINITION OF STATE
,
,The term ‘State’ has been used in different provisions concerning the
,"fundamental rights. Hence, Article 12 has defined the term for the"
,"purposes of Part III. According to it, the State includes the following:"
,"(a) Government and Parliament of India, that is, executive and"
,legislative organs of the Union government.
,"(b) Government and legislature of states, that is, executive and"
,legislative organs of state government.
,"(c) All local authorities, that is, municipalities, panchayats, district"
,"boards, improvement trusts, etc."
,"(d) All other authorities, that is, statutory or non-statutory authorities"
,"like LIC, ONGC, SAIL, etc."
,"Thus, State has been defined in a wider sense so as to include all"
,its agencies. It is the actions of these agencies that can be challenged
,in the courts as violating the Fundamental Rights.
,"According to the Supreme Court, even a private body or an agency"
,working as an instrument of the State falls within the meaning of the
,‘State’ under Article 12.
, LAWS INCONSISTENT WITH FUNDAMENTAL RIGHTS
,Article 13 declares that all laws that are inconsistent with or in
,derogation of any of the fundamental rights shall be void. In other
,"words, it expressively provides for the doctrine of judicial review. This"
,power has been conferred on the Supreme Court (Article 32) and the
,high courts (Article 226) that can declare a law unconstitutional and
,invalid on the ground of contravention of any of the Fundamental
,Rights.
,The term ‘law’ in Article 13 has been given a wide connotation so
,as to include the following:
,(a) Permanent laws enacted by the Parliament or the state
,legislatures;
,(b) Temporary laws like ordinances issued by the president or the
,state governors;
,(c) Statutory instruments in the nature of delegated legislation
,"(executive legislation) like order, bye-law, rule, regulation or"
,notification; and
,"(d) Non-legislative sources of law, that is, custom or usage having"
,the force of law.
,"Thus, not only a legislation but any of the above can be challenged"
,"in the courts as violating a Fundamental Right and hence, can be"
,declared as void.
,"Further, Article 13 declares that a constitutional amendment is not a"
,"law and hence cannot be challenged. However, the Supreme Court"
,held in the Kesavananda Bharati case2 (1973) that a Constitutional
,amendment can be challenged on the ground that it violates a
,fundamental right that forms a part of the ‘basic structure’ of the
,"Constitution and hence, can be declared as void."
,
,Table 7.1 Fundamental Rights at a Glance
,Category                           Consists of
,1. Right to equality (Articles    (a) Equality before law and equal
,14–18)                             protection of laws (Article 14).
,(b) Prohibition of discrimination on
,"grounds of religion, race, caste,"
,sex or place of birth (Article
,15).
,                                (c) Equality of opportunity in
,matters of public employment
,(Article 16).
,(d) Abolition of untouchability and
,prohibition of its practice
,(Article 17).
,(e) Abolition of titles except military
,and academic (Article 18).
,2. Right to freedom (Articles   (a) Protection       of    six     rights
,19–22)                           regarding freedom of: (i)
,"speech and expression, (ii)"
,"assembly, (iii) association, (iv)"
,"movement, (v) residence, and"
,(vi) profession (Article 19).
,(b) Protection      in    respect      of
,conviction for offences (Article
,20).
,(c) Protection of life and personal
,liberty (Article 21).
,(d) Right to elementary education
,(Article 21A).
,(e) Protection against arrest and
,detention in certain cases
,(Article 22).
,3. Right against exploitation   (a) Prohibition of traffic in human
,(Articles 23–24)                 beings and forced labour
,(Article 23).
,(b) Prohibition of employment of
,"children in factories, etc."
,(Article 24).
,4. Right to freedom of          (a) Freedom of conscience and
,"religion (Article 25–28)         free profession, practice and"
,propagation of religion (Article
,25).
,(b) Freedom to manage religious
,affairs (Article 26).
,(c) Freedom from payment of
,taxes for promotion of any
,religion (Article 27).
,(d) Freedom         from       attending
,                                        religious instruction or worship
,in       certain       educational
,institutions (Article 28).
,"5. Cultural and educational       (a) Protection of language, script"
,rights (Articles 29–30)             and culture of minorities (Article
,29).
,(b) Right of minorities to establish
,and administer educational
,institutions (Article 30).
,6. Right to constitutional         Right to move the Supreme Court
,remedies (Article 32)           for       the     enforcement       of
,fundamental rights including the
,"writs of (i) habeas corpus, (ii)"
,"mandamus, (iii) prohibition, (iv)"
,"certiorari, and (v) quo war-rento"
,(Article 32).
,
,Table 7.2 Fundamental Rights (FR) of Foreigners
,FR available only to citizens         FR available to both citizens
,and not to foreigners             and foreigners (except enemy
,aliens)
,1. Prohibition of discrimination      1. Equality before law and equal
,"on grounds of religion, race,         protection of laws (Article 14)."
,"caste, sex or place of birth"
,(Article 15).
,2. Equality of opportunity in         2. Protection in respect of
,matters of public employment          conviction    for offences
,(Article 16).                         (Article 20).
,3. Protection of six rights 3. Protection of life and personal
,regarding freedom of : (i)    liberty (Article 21).
,"speech and expression, (ii)"
,"assembly, (iii) association,"
,"(iv) movement, (v) residence,"
,and (vi) profession (Article
,19).
,4. Protection    of     life   and 4. Right      to      elementary
,personal liberty (Article 21).     education (Article 21A).
,5. Right   of    minorities      to   5. Protection against arrest and
,establish and    administer        detention in certain cases
,educational     institutions       (Article 22).
,(Article 30).
,6. Prohibition of traffic in human
,beings and forced labour
,(Article 23).
,7. Prohibition of employment of
,"children in factories etc.,"
,(Article 24).
,8. Freedom of conscience and
,"free profession, practice and"
,propagation     of     religion
,(Article 25).
,9. Freedom to manage religious
,affairs (Article 26).
,10. Freedom from payment of
,taxes for promotion of any
,religion (Article 27).
,11. Freedom       from      attending
,religious      instruction     or
,worship in certain educational
,institutions (Article 28).
, RIGHT TO EQUALITY
,
,1. Equality before Law and Equal Protection of Laws
,Article 14 says that the State shall not deny to any person equality
,before the law or the equal protection of the laws within the territory of
,India. This provision confers rights on all persons whether citizens or
,"foreigners. Moreover, the word ‘person’ includes legal persons, viz,"
,"statutory corporations, companies, registered societies or any other"
,type of legal person.
,The concept of ‘equality before law’ is of British origin while the
,concept of ‘equal protection of laws’ has been taken from the
,American Constitution. The first concept connotes: (a) the absence of
,"any special privileges in favour of any person, (b) the equal subjection"
,of all persons to the ordinary law of the land administered by ordinary
,"law courts, and (c) no person (whether rich or poor, high or low, official"
,or non-official) is above the law.
,"The second concept, on the other hand, connotes: (a) the equality"
,"of treatment under equal circumstances, both in the privileges"
,"conferred and liabilities imposed by the laws, (b) the similar"
,"application of the same laws to all persons who are similarly situated,"
,and (c) the like should be treated alike without any discrimination.
,"Thus, the former is a negative concept while the latter is a positive"
,"concept. However, both of them aim at establishing equality of legal"
,"status, opportunity and justice."
,The Supreme Court held that where equals and unequals are
,"treated differently, Article 14 does not apply. While Article 14 forbids"
,"class legislation, it permits reasonable classification of persons,"
,objects and transactions by the law. But the classification should not
,"be arbitrary, artificial or evasive. Rather, it should be based on an"
,intelligible differential and substantial distinction.
,Rule of Law The concept of ‘equality before law’ is an element of the
,"concept of ‘Rule of Law’, propounded by A.V. Dicey, the British jurist."
,His concept has the following three elements or aspects:
,"(i) Absence of arbitrary power, that is, no man can be punished"
,except for a breach of law.
,"(ii) Equality before the law, that is, equal subjection of all citizens (rich"
,"or poor, high or low, official or non-official) to the ordinary law of"
,the land administered by the ordinary law courts3 .
,"(iii) The primacy of the rights of the individual, that is, the constitution"
,is the result of the rights of the individual as defined and enforced
,by the courts of law rather than the constitution being the source
,of the individual rights.
,The first and the second elements are applicable to the Indian
,"System and not the third one. In the Indian System, the constitution is"
,the source of the individual rights.
,The Supreme Court held that the ‘Rule of Law’ as embodied in
,"Article 14 is a ‘basic feature’ of the constitution. Hence, it cannot be"
,destroyed even by an amendment.
,Exceptions to Equality The rule of equality before law is not absolute
,and there are constitutional and other exceptions to it. These are
,mentioned below:
,1. The President of India and the Governor of States enjoy the
,following immunities (Article 361):
,(i) The President or the Governor is not answerable to any court
,the exercise and performance of the powers and duties of
,office.
,(ii) No criminal proceedings shall be instituted or continued aga
,the President or the Governor in any court during his term
,office.
,(iii) No process for the arrest or imprisonment of the President or
,Governor shall be issued from any court during his term of offic
,(iv) No civil proceedings against the President or the Governor s
,be instituted during his term of office in any court in respect of
,"act done by him in his personal capacity, whether before or a"
,"he entered upon his office, until the expiration of two months n"
,after notice has been delivered to him.
,2. No person shall be liable to any civil or criminal proceedings in
,any court in respect of the publication in a newspaper (or by
,radio or television) of a substantially true report of any
,proceedings of either House of Parliament or either House of the
,Legislature of a State (Article 361-A).
,3. No member of Parliament shall be liable to any proceedings in
,any court in respect of anything said or any vote given by him in
,Parliament or any committee thereof (Article 105).
,4. No member of the Legislature of a state shall be liable to any
,proceedings in any court in respect of anything said or any vote
,given by him in the Legislature or any committee thereof (Article
,194).
,  5. Article 31-C is an exception to Article 14. It provides that the
,laws made by the state for implementing the Directive Principles
,contained in clause (b) or clause (c) of Article 39 cannot be
,challenged on the ground that they are violative of Article 14.
,"The Supreme Court held that “where Article 31-C comes in,"
,Article 14 goes out”.
,"6. The foreign sovereigns (rulers), ambassadors and diplomats"
,enjoy immunity from criminal and civil proceedings.
,7. The UNO and its agencies enjoy the diplomatic immunity.
,
,2. Prohibition of Discrimination on Certain Grounds
,Article 15 provides that the State shall not discriminate against any
,"citizen on grounds only of religion, race, caste, sex or place of birth."
,The two crucial words in this provision are ‘discrimination’ and ‘only’.
,The word ‘discrimination’ means ‘to make an adverse distinction with
,regard to’ or ‘to distinguish unfavourably from others’. The use of the
,word ‘only’ connotes that discrimination on other grounds is not
,prohibited.
,The second provision of Article 15 says that no citizen shall be
,"subjected to any disability, liability, restriction or condition on grounds"
,"only of religion, race, caste, sex, or place of birth with regard to (a)"
,"access to shops, public restaurants, hotels and places of public"
,"entertainment; or (b) the use of wells, tanks, bathing ghats, road and"
,places of public resort maintained wholly or partly by State funds or
,dedicated to the use of general public. This provision prohibits
,"discrimination both by the State and private individuals, while the"
,former provision prohibits discrimination only by the State.
,There are four exceptions to this general rule of non-discrimination:
,(a) The state is permitted to make any special provision for women
,"and children. For example, reservation of seats for women in"
,local bodies or provision of free education for children.
,(b) The state is permitted to make any special provision for the
,advancement of any socially and educationally backward classes
,of citizens or for the scheduled castes and scheduled tribes4. For
,"example, reservation of seats or fee concessions in public"
,educational institutions.
,(c) The state is empowered to make any special provision for the
,advancement of any socially and educationally backward classes
,of citizens or for the scheduled castes or the scheduled tribes
,regarding their admission to educational institutions including
,"     private educational institutions, whether aided or unaided by the"
,"state, except the minority educational institutions."
,(d) The state is empowered to make any special provision for the
,advancement of any economically weaker sections of citizens.
,"Further, the state is allowed to make a provision for the"
,reservation of upto 10% of seats for such sections in admission
,to educational institutions including private educational
,"institutions, whether aided or unaided by the state, except the"
,minority educational institutions. This reservation of upto 10%
,would be in addition to the existing reservations. For this
,"purpose, the economically weaker sections would be notified by"
,the state from time to time on the basis of family income and
,other indicators of economic disadvantage.
,
,Reservation for OBCs in Educational Institutions
,The above exception(c) was added by the 93rd Amendment Act of
,"2005. In order to give effect to this provision, the Centre enacted the"
,"Central Educational Institutions (Reservation in Admission) Act, 2006,"
,providing a quota of 27% for candidates belonging to the Other
,Backward Classes (OBCs) in all central higher educational institutions
,including the Indian Institutes of Technology (IITs) and the Indian
,"Institutes of Management (IIMs). In April 2008, the Supreme Court"
,"upheld the validity of both, the Amendment Act and the OBC Quota"
,"Act. But, the Court directed the central government to exclude the"
,‘creamy layer’ (advanced sections) among the OBCs while
,implementing the law.
,The children of the following different categories of people belong
,to ‘creamy layer’ among OBCs and thus will not get the quota benefit :
,"1. Persons holding constitutional posts like President, Vice-"
,"President, Judges of SC and HCs, Chairman and Members of"
,"UPSC and SPSCs, CEC, CAG and so on."
,2. Group ‘A’ / Class I and Group ‘B’ / Class II Officers of the All
,"India, Central and State Services; and Employees holding"
,"equivalent posts in PSUs, Banks, Insurance Organisations,"
,"Universities etc., and also in private employment."
,3. Persons who are in the rank of colonel and above in the Army
,"and equivalent posts in the Navy, the Air Force and the"
,Paramilitary Forces.
,"4. Professionals like doctors, lawyers, engineers, artists, authors,"
,consultants and so on.
,"5. Persons engaged in trade, business and industry."
,  6. People holding agricultural land above a certain limit and vacant
,land or buildings in urban areas.
,7. Persons having gross annual income of more than ₹8 lakh or
,"possessing wealth above the exemption limit. In 1993, when the"
,"“creamy layer” ceiling was introduced, it was ₹1 lakh. It was"
,"subsequently revised to ₹2.5 lakh in 2004, ₹4.5 lakh in 2008, ₹6"
,lakh in 2013 and ₹8 lakh in 2017.
,
,Reservation for EWSs in Educational Institutions
,The above exception (d) was added by the 103rd Amendment Act of
,"2019. In order to give effect to this provision, the central government"
,issued an order (in 2019) providing 10% reservation to the
,Economically Weaker Sections (EWSs) in admission to educational
,institutions. The benefit of this reservation can be availed by the
,persons belonging to EWSs who are not covered under any of the
,"existing schemes of reservations for SCs, STs and OBCs. The"
,eligibility criteria laid down in this regard is as follows:
,1. Persons whose family has gross annual income below ₹8 lakh
,are to be identified as EWSs for the benefit of reservation. The
,"income would include income from all sources i.e., salary,"
,"agriculture, business, profession etc. and it would be income for"
,the financial year prior to the year of application.
,2. Persons whose family owns or possesses any one of the
,following assets are to be excluded from being identified as
,"EWSs, irrespective of the family income:"
,(a) 5 acres of Agricultural land and above.
,(b) Residential flat of 1000 sq.ft. and above.
,(c) Residential plot of 100 sq.yards and above in notified
,municipalities.
,(d) Residential plot of 200 sq.yards and above in areas other
,than the notified municipalities.
,3. The property held by a family in different locations or different
,places / cities would be clubbed while applying the land or
,property holding test to determine EWS status.
,4. Family for this purpose would include the person who seeks
,"benefit of reservation, his/her parents and siblings below the age"
,of 18 years as also his/ her spouse and children below the age
,of 18 years.
,
,3. Equality of Opportunity in Public Employment
,Article 16 provides for equality of opportunity for all citizens in matters
,of employment or appointment to any office under the State. No
,citizen can be discriminated against or be ineligible for any
,"employment or office under the State on grounds of only religion, race,"
,"caste, sex, descent, place of birth or residence."
,There are four exceptions to this general rule of equality of
,opportunity in public employment:
,(a) Parliament can prescribe residence as a condition for certain
,employment or appointment in a state or union territory or local
,authority or other authority. As the Public Employment
,"(Requirement as to Residence) Act of 1957 expired in 1974,"
,there is no such provision for any state except Andhra Pradesh5
,and Telangana5a.
,(b) The State can provide for reservation of appointments or posts in
,favour of any backward class that is not adequately represented
,in the state services.
,(c) A law can provide that the incumbent of an office related to
,religious or denominational institution or a member of its
,governing body should belong to the particular religion or
,denomination.
,(d) The state is permitted to make a provision for the reservation of
,upto 10% of appointments or posts in favour of any economically
,weaker sections of citizens. This reservation of upto 10% would
,"be in addition to the existing reservation. For this purpose, the"
,economically weaker sections would be notified by the state from
,time to time on the basis of family income and other indicators of
,economic disadvantage.
,
,Mandal Commission and Aftermath
,"In 1979, the Morarji Desai Government appointed the Second6"
,Backward Classes Commission under the chairmanship of B.P.
,"Mandal, a Member of Parliament, in terms of Article 340 of the"
,Constitution to investigate the conditions of the socially and
,educationally backward classes and suggest measures for their
,advancement. The commission submitted its report in 1980 and
,identified as many as 3743 castes as socially and educationally
,backward classes. They constitute nearly 52% component of the
,"population, excluding the scheduled castes (SCs) and the scheduled"
,tribes (STs). The commission recommended for reservation of 27%
,government jobs for the Other Backward Classes (OBCs) so that the
,"total reservation for all ((SCs, STs and OBCs) amounts to 50%.7 It"
,was after ten years in 1990 that the V.P. Singh Government declared
,"reservation of 27% government jobs for the OBCs. Again in 1991, the"
,Narasimha Rao Government introduced two changes: (a) preference
,"to the poorer sections among the OBCs in the 27% quota, i.e.,"
,"adoption of the economic criteria in granting reservation, and (b)"
,reservation of another 10% of jobs for poorer (economically backward)
,sections of higher castes who are not covered by any existing
,schemes of reservation.
,"In the famous Mandal case8 (1992), the scope and extent of Article"
,"16(4), which provides for reservation of jobs in favour of backward"
,"classes, has been examined thoroughly by the Supreme Court."
,Though the Court has rejected the additional reservation of 10% for
,"poorer sections of higher castes, it upheld the constitutional validity of"
,"27% reservation for the OBCs with certain conditions, viz,"
,(a) The advanced sections among the OBCs (the creamy layer)
,should be excluded from the list of beneficiaries of reservation.
,(b) No reservation in promotions; reservation should be confined to
,initial appointments only. Any existing reservation in promotions
,"can continue for five years only (i.e., upto 1997)."
,(c) The total reserved quota should not exceed 50% except in some
,extraordinary situations. This rule should be applied every year.
,(d) The ‘carry forward rule’ in case of unfilled (backlog) vacancies is
,valid. But it should not violate 50% rule.
,(e) A permanent statutory body should be established to examine
,complaints of over-inclusion and under-inclusion in the list of
,OBCs.
,"With regard to the above rulings of the Supreme Court, the"
,government has taken the following actions:
,(a) Ram Nandan Committee was appointed to identify the creamy
,"layer among the OBCs. It submitted its report in 1993, which was"
,accepted.
,(b) National Commission for Backward Classes was established in
,1993 by an act of Parliament. Its mandate was to examine the
,"complaints of under-inclusion, over-inclusion or non-inclusion of"
,any class of citizens in the list of backward classes for the
,"purpose of job reservation. Later, the 102nd Amendment Act of"
,2018 conferred a constitutional status on the commission and
,"also enlarged its functions. For this purpose, the amendment"
,inserted a new Article 338-B in the constitution.
, (c) In order to nullify the ruling with regard to reservation in
,"promotions, the 77th Amendment Act was enacted in 1995. It"
,added a new provision in Article 16 that empowers the State to
,provide for reservation in promotions of any services under the
,State in favour of the SCs and STs that are not adequately
,"represented in the state services. Again, the 85th Amendment"
,Act of 2001 provides for ‘consequential seniority’ in the case of
,promotion by virtue of rule of reservation for the government
,servants belonging to the SCs and STs with retrospective effect
,from June 1995.
,(d) The ruling with regard to backlog vacancies was nullified by the
,81st Amendment Act of 2000. It added another new provision in
,Article 16 that empowers the State to consider the unfilled
,reserved vacancies of a year as a separate class of vacancies to
,be filled up in any succeeding year or years. Such class of
,vacancies are not to be combined with the vacancies of the year
,in which they are being filled up to determine the ceiling of 50%
,"reservation on total number of vacancies of that year. In brief, it"
,ends the 50% ceiling on reservation in backlog vacancies.
,(e) The 76th Amendment Act of 1994 has placed the Tamil Nadu
,Reservations Act9 of 1994 in the Ninth Schedule to protect it from
,"judicial review as it provided for 69 per cent of reservation, far"
,exceeding the 50 per cent ceiling.
,
,Reservation for EWSs in Public Employment
,The above exception (d) was added by the 103rd Amendment Act of
,"2019. In order to give effect to this provision, the central government"
,issued an order (in 2019) providing 10% reservation to the
,Economically Weaker Sections (EWSs) in civil posts and services in
,the Government of India. The benefit of this reservation can be availed
,by the persons belonging to EWSs who are not covered under any of
,"the existing schemes of reservation for SCs, STs and OBCs. The"
,eligibility criteria laid down in this regard has already been explained
,under Article 15.
,"Further, the scientific and technical posts which satisfy all the"
,following conditions can be exempted from the purview of this
,reservation:
,(i) The posts should be in grades above the lower grade in Group A
,of the service concerned.
,(ii) They should be classified as “scientific or technical” in terms of
,"      Cabinet Secretariat Order (1961), according to which scientific"
,and technical posts for which qualifications in the natural sciences
,or exact sciences or applied sciences or in technology are
,prescribed and the incumbents of which have to use that
,knowledge in the discharge of their duties.
,"(iii) The posts should be for conducting research or for organizing,"
,guiding and directing research.
,
,4. Abolition of Untouchability
,Article 17 abolishes ‘untouchability’ and forbids its practice in any
,form. The enforcement of any disability arising out of untouchability
,shall be an offence punishable in accordance with law.
,"In 1976, the Untouchability (Offences) Act, 1955 has been"
,comprehensively amended and renamed as the Protection of Civil
,"Rights Act, 1955 to enlarge the scope and make penal provisions"
,more stringent. The act defines civil right as any right accruing to a
,person by reason of the abolition of untouchability by Article 17 of the
,Constitution.
,The term ‘untouchability’ has not been defined either in the
,"Constitution or in the Act. However, the Mysore High Court held that"
,the subject matter of Article 17 is not untouchability in its literal or
,grammatical sense but the ‘practice as it had developed historically in
,the country’. It refers to the social disabilities imposed on certain
,"classes of persons by reason of their birth in certain castes. Hence, it"
,does not cover social boycott of a few individuals or their exclusion
,"from religious services, etc."
,The Supreme Court held that the right under Article 17 is available
,against private individuals and it is the constitutional obligation of the
,State to take necessary action to ensure that this right is not violated.
,
,5. Abolition of Titles
,Article 18 abolishes titles and makes four provisions in that regard:
,(a) It prohibits the state from conferring any title (except a military or
,"academic distinction) on any body, whether a citizen or a"
,foreigner.
,(b) It prohibits a citizen of India from accepting any title from any
,foreign state.
,(c) A foreigner holding any office of profit or trust under the state
,cannot accept any title from any foreign state without the consent
,       of the president.
,(d) No citizen or foreigner holding any office of profit or trust under
,"the State is to accept any present, emolument or office from or"
,under any foreign State without the consent of the president.
,"From the above, it is clear that the hereditary titles of nobility like"
,"Maharaja, Raj Bahadur, Rai Bahadur, Rai Saheb, Dewan Bahadur,"
,"etc, which were conferred by colonial States are banned by Article 18"
,as these are against the principle of equal status of all.
,"In 199610 , the Supreme Court upheld the constitutional validity of"
,"the National Awards–Bharat Ratna, Padma Vibhushan, Padma"
,Bhushan and Padma Sri. It ruled that these awards do not amount to
,‘titles’ within the meaning of Article 18 that prohibits only hereditary
,"titles of nobility. Therefore, they are not violative of Article 18 as the"
,theory of equality does not mandate that merit should not be
,"recognised. However, it also ruled that they should not be used as"
,"suffixes or prefixes to the names of awardees. Otherwise, they should"
,forfeit the awards.
,These National Awards were instituted in 1954. The Janata Party
,government headed by Morarji Desai discontinued them in 1977. But
,they were again revived in 1980 by the Indira Gandhi government.
, RIGHT TO FREEDOM
,
,1. Protection of Six Rights
,Article 19 guarantees to all citizens the six rights. These are:
,(i) Right to freedom of speech and expression.
,(ii) Right to assemble peaceably and without arms.
,(iii) Right to form associations or unions or co-operative societies.10a
,(iv) Right to move freely throughout the territory of India.
,(v) Right to reside and settle in any part of the territory of India.
,"(vi) Right to practice any profession or to carry on any occupation,"
,trade or business.
,"Originally, Article 19 contained seven rights. But, the right to"
,"acquire, hold and dispose of property was deleted by the 44th"
,Amendment Act of 1978.
,These six rights are protected against only state action and not
,"private individuals. Moreover, these rights are available only to the"
,citizens and to shareholders of a company but not to foreigners or
,"legal persons like companies or corporations, etc."
,The State can impose ‘reasonable’ restrictions on the enjoyment of
,these six rights only on the grounds mentioned in the Article 19 itself
,and not on any other grounds.
,
,Freedom of Speech and Expression
,"It implies that every citizen has the right to express his views,"
,"opinions, belief and convictions freely by word of mouth, writing,"
,"printing, picturing or in any other manner. The Supreme Court held"
,that the freedom of speech and expression includes the following:
,(a) Right to propagate one’s views as well as views of others.
,(b) Freedom of the press.
,(c) Freedom of commercial advertisements.
,(d) Right against tapping of telephonic conversation.
,"(e) Right to telecast, that is, government has no monopoly on"
,electronic media.
,(f) Right against bundh called by a political party or organisation.
,(g) Right to know about government activities.
,(h) Freedom of silence.
,(i) Right against imposition of pre-censorship on a newspaper.
,(j) Right to demonstration or picketing but not right to strike.
,   The State can impose reasonable restrictions on the exercise of the
,freedom of speech and expression on the grounds of sovereignty and
,"integrity of India, security of the state, friendly relations with foreign"
,"states, public order, decency or morality, contempt of court,"
,"defamation, and incitement to an offence."
,
,Freedom of Assembly
,Every citizen has the right to assemble peaceably and without arms. It
,"includes the right to hold public meetings, demonstrations and take"
,out processions. This freedom can be exercised only on public land
,and the assembly must be peaceful and unarmed. This provision does
,"not protect violent, disorderly, riotous assemblies, or one that causes"
,breach of public peace or one that involves arms. This right does not
,include the right to strike.
,The State can impose reasonable restrictions on the exercise of
,"right of assembly on two grounds, namely, sovereignty and integrity of"
,India and public order including the maintenance of traffic in the area
,concerned.
,"Under Section 144 of Criminal Procedure Code (1973), a"
,"magistrate can restrain an assembly, meeting or procession if there is"
,"a risk of obstruction, annoyance or danger to human life, health or"
,safety or a disturbance of the public tranquillity or a riot or any affray.
,"Under Section 141 of the Indian Penal Code, as assembly of five or"
,more persons becomes unlawful if the object is (a) to resist the
,execution of any law or legal process; (b) to forcibly occupy the
,property of some person; (c) to commit any mischief or criminal
,trespass; (d) to force some person to do an illegal act; and (e) to
,threaten the government or its officials on exercising lawful powers.
,
,Freedom of Association
,All citizens have the right to form associations or unions or co-
,"operative societies10b. It includes the right to form political parties,"
,"companies, partnership firms, societies, clubs, organisations, trade"
,unions or any body of persons. It not only includes the right to start an
,association or union but also to continue with the association or union
,"as such. Further, it covers the negative right of not to form or join an"
,association or union.
,Reasonable restrictions can be imposed on the exercise of this
,"right by the State on the grounds of sovereignty and integrity of India,"
,"public order and morality. Subject to these restrictions, the citizens"
,have complete liberty to form associations or unions for pursuing
,"lawful objectives and purposes. However, the right to obtain"
,recognition of the association is not a fundamental right.
,The Supreme Court held that the trade unions have no guaranteed
,right to effective bargaining or right to strike or right to declare a lock-
,out. The right to strike can be controlled by an appropriate industrial
,law.
,
,Freedom of Movement
,This freedom entitles every citizen to move freely throughout the
,territory of the country. He can move freely from one state to another
,or from one place to another within a state. This right underline the
,"idea that India is one unit so far as the citizens are concerned. Thus,"
,the purpose is to promote national feeling and not parochialism.
,The grounds of imposing reasonable restrictions on this freedom
,"are two, namely, the interests of general public and the protection of"
,interests of any scheduled tribe. The entry of outsiders in tribal areas
,"is restricted to protect the distinctive culture, language, customs and"
,manners of scheduled tribes and to safeguard their traditional vocation
,and properties against exploitation.
,The Supreme Court held that the freedom of movement of
,prostitutes can be restricted on the ground of public health and in the
,interest of public morals. The Bombay High Court validated the
,restrictions on the movement of persons affected by AIDS.
,"The freedom of movement has two dimensions, viz, internal (right"
,to move inside the country) and external (right to move out of the
,country and right to come back to the country). Article 19 protects only
,the first dimension. The second dimension is dealt by Article 21 (right
,to life and personal liberty).
,
,Freedom of Residence
,Every citizen has the right to reside and settle in any part of the
,territory of the country. This right has two parts: (a) the right to reside
,"in any part of the country, which means to stay at any place"
,"temporarily, and (b) the right to settle in any part of the country, which"
,means to set up a home or domicile at any place permanently.
,This right is intended to remove internal barriers within the country
,or between any of its parts. This promotes nationalism and avoids
,narrow mindedness.
,The State can impose reasonable restrictions on the exercise of
,"this right on two grounds, namely, the interest of general public and"
,the protection of interests of any scheduled tribes. The right of
,outsiders to reside and settle in tribal areas is restricted to protect the
,"distinctive culture, language, customs and manners of scheduled"
,tribes and to safeguard their traditional vocation and properties
,"against exploitation. In many parts of the country, the tribals have"
,been permitted to regulate their property rights in accordance with
,their customary rules and laws.
,The Supreme Court held that certain areas can be banned for
,certain kinds of persons like prostitutes and habitual offenders.
,"From the above, it is clear that the right to residence and the right"
,to movement are overlapping to some extent. Both are
,complementary to each other.
,
,"Freedom of Profession, etc."
,All citizens are given the right to practise any profession or to carry on
,"any occupation, trade or business. This right is very wide as it covers"
,all the means of earning one’s livelihood.
,The State can impose reasonable restrictions on the exercise of
,"this right in the interest of the general public. Further, the State is"
,empowered to:
,(a) prescribe professional or technical qualifications necessary for
,"practising any profession or carrying on any occupation, trade or"
,business; and
,"(b) carry on by itself any trade, business, industry or service whether"
,to the exclusion (complete or partial) of citizens or otherwise.
,"Thus, no objection can be made when the State carries on a trade,"
,"business, industry or service either as a monopoly (complete or"
,partial) to the exclusion of citizens (all or some only) or in competition
,with any citizen. The State is not required to justify its monopoly.
,This right does not include the right to carry on a profession or
,business or trade or occupation that is immoral (trafficking in women
,"or children) or dangerous (harmful drugs or explosives, etc,). The"
,State can absolutely prohibit these or regulate them through licencing.
,
,2. Protection in Respect of Conviction for Offences
,Article 20 grants protection against arbitrary and excessive
,"punishment to an accused person, whether citizen or foreigner or legal"
,person like a company or a corporation. It contains three provisions in
,that direction:
,(a) No ex-post-facto law: No person shall be (i) convicted of any
,offence except for violation of a law in force at the time of the
,"       commission of the act, nor (ii) subjected to a penalty greater than"
,that prescribed by the law in force at the time of the commission
,of the act.
,(b) No double jeopardy: No person shall be prosecuted and
,punished for the same offence more than once.
,(c) No self-incrimination: No person accused of any offence shall be
,compelled to be a witness against himself.
,An ex-post-facto law is one that imposes penalties retrospectively
,"(retroactively), that is, upon acts already done or which increases the"
,penalties for such acts. The enactment of such a law is prohibited by
,"the first provision of Article 20. However, this limitation is imposed only"
,"on criminal laws and not on civil laws or tax laws. In other words, a"
,"civil liability or a tax can be imposed retrospectively. Further, this"
,provision prohibits only conviction or sentence under an ex-post-facto
,"criminal law and not the trial thereof. Finally, the protection (immunity)"
,under this provision cannot be claimed in case of preventive detention
,or demanding security from a person.
,The protection against double jeopardy is available only in
,"proceedings before a court of law or a judicial tribunal. In other words,"
,it is not available in proceedings before departmental or administrative
,authorities as they are not of judicial nature.
,The protection against self-incrimination extends to both oral
,"evidence and documentary evidence. However, it does not extend to"
,"(i) compulsory production of material objects, (ii) compulsion to give"
,"thumb impression, specimen signature, blood specimens, and (iii)"
,"compulsory exhibition of the body. Further, it extends only to criminal"
,proceedings and not to civil proceedings or proceedings which are not
,of criminal nature.
,
,3. Protection of Life and Personal Liberty
,Article 21 declares that no person shall be deprived of his life or
,personal liberty except according to procedure established by law.
,This right is available to both citizens and non-citizens.
,"In the famous Gopalan case11 (1950), the Supreme Court has"
,taken a narrow interpretation of the Article 21. It held that the
,protection under Article 21 is available only against arbitrary executive
,action and not from arbitrary legislative action. This means that the
,State can deprive the right to life and personal liberty of a person
,based on a law. This is because of the expression ‘procedure
,"established by law’ in Article 21, which is different from the expression"
,"‘due process of law’ contained in the American Constitution. Hence,"
,the validity of a law that has prescribed a procedure cannot be
,"questioned on the ground that the law is unreasonable, unfair or"
,"unjust. Secondly, the Supreme Court held that the ‘personal liberty’"
,"means only liberty relating to the person or body of the individual. But,"
,"in Menaka case12 (1978), the Supreme Court overruled its judgement"
,in the Gopalan case by taking a wider interpretation of the Article 21.
,"Therefore, it ruled that the right to life and personal liberty of a person"
,can be deprived by a law provided the procedure prescribed by that
,"law is reasonable, fair and just. In other words, it has introduced the"
,"American expression ‘due process of law’. In effect, the protection"
,under Article 21 should be available not only against arbitrary
,"executive action but also against arbitrary legislative action. Further,"
,the court held that the ‘right to life’ as embodied in Article 21 is not
,merely confined to animal existence or survival but it includes within
,its ambit the right to live with human dignity and all those aspects of
,"life which go to make a man’s life meaningful, complete and worth"
,living. It also ruled that the expression ‘Personal Liberty’ in Article 21 is
,of the widest amplitude and it covers a variety of rights that go to
,constitute the personal liberties of a man.
,The Supreme Court has reaffirmed its judgement in the Menaka
,case in the subsequent cases. It has declared the following rights as
,part of Article 21:
,(1) Right to live with human dignity.
,(2) Right to decent environment including pollution free water and air
,and protection against hazardous industries.
,(3) Right to livelihood.
,(4) Right to privacy.
,(5) Right to shelter.
,(6) Right to health.
,(7) Right to free education up to 14 years of age.
,(8) Right to free legal aid.
,(9) Right against solitary confinement.
,(10) Right to speedy trial.
,(11) Right against handcuffing.
,(12) Right against inhuman treatment.
,(13) Right against delayed execution.
,(14) Right to travel abroad.
,(15) Right against bonded labour.
,(16) Right against custodial harassment.
,(17)   Right to emergency medical aid.
,(18)   Right to timely medical treatment in government hospital.
,(19)   Right not to be driven out of a state.
,(20)   Right to fair trial.
,(21)   Right of prisoner to have necessities of life.
,(22)   Right of women to be treated with decency and dignity.
,(23)   Right against public hanging.
,(24)   Right to road in hilly areas.
,(25)   Right to information.
,(26)   Right to reputation.
,(27)   Right of appeal from a judgement of conviction
,(28)   Right to family pension
,(29)   Right to social and economic justice and empowerment
,(30)   Right against bar fetters
,(31)   Right to appropriate life insurance policy
,(32)   Right to sleep
,(33)   Right to freedom from noise pollution
,(34)   Right to sustainable development
,(35)   Right to opportunity.
,
,4. Right to Education
,Article 21 A declares that the State shall provide free and compulsory
,education to all children of the age of six to fourteen years in such a
,"manner as the State may determine. Thus, this provision makes only"
,elementary education a Fundamental Right and not higher or
,professional education.
,This provision was added by the 86th Constitutional Amendment
,Act of 2002. This amendment is a major milestone in the country’s aim
,to achieve ‘Education for All’. The government described this step as
,‘the dawn of the second revolution in the chapter of citizens’ rights’.
,"Even before this amendment, the Constitution contained a"
,provision for free and compulsory education for children under Article
,"45 in Part IV. However, being a directive principle, it was not"
,"enforceable by the courts. Now, there is scope for judicial intervention"
,in this regard.
,This amendment changed the subject matter of Article 45 in
,directive principles. It now reads–‘The state shall endeavour to provide
,early childhood care and education for all children until they complete
,the age of six years.’ It also added a new fundamental duty under
,Article 51A that reads–‘It shall be the duty of every citizen of India to
,provide opportunities for education to his child or ward between the
,age of six and fourteen years’.
,"In 1993 itself, the Supreme Court recognised a Fundamental Right"
,to primary education in the right to life under Article 21. It held that
,every child or citizen of this country has a right to free education until
,"he completes the age of 14 years. Thereafter, his right to education is"
,subject to the limits of economic capacity and development of the
,"state. In this judgement, the Court overruled its earlier judgement"
,(1992) which declared that there was a fundamental right to education
,up to any level including professional education like medicine and
,engineering.
,"In pursuance of Article 21A, the Parliament enacted the Right of"
,Children to Free and
,"Compulsory Education (RTE) Act, 2009. This Act seeks to provide"
,that every child has a right to be provided full time elementary
,education of satisfactory and equitable quality in a formal school which
,satisfies certain essential norms and standards. This legislation is
,"anchored in the belief that the values of equality, social justice and"
,democracy and the creation of a just and humane society can be
,achieved only through provision of inclusive elementary education to
,all.12a
,
,5. Protection Against Arrest and Detention
,Article 22 grants protection to persons who are arrested or detained.
,"Detention is of two types, namely, punitive and preventive. Punitive"
,detention is to punish a person for an offence committed by him after
,"trial and conviction in a court. Preventive detention, on the other hand,"
,means detention of a person without trial and conviction by a court. Its
,purpose is not to punish a person for a past offence but to prevent him
,"from committing an offence in the near future. Thus, preventive"
,detention is only a precautionary measure and based on suspicion.
,The Article 22 has two parts–the first part deals with the cases of
,ordinary law and the second part deals with the cases of preventive
,detention law.
,(a) The first part of Article 22 confers the following rights on a person
,who is arrested or detained under an ordinary law:
,(i) Right to be informed of the grounds of arrest.
,(ii) Right to consult and be defended by a legal practitioner.
,(iii) Right to be produced before a magistrate within 24 hou
,including the journey time.
,    (iv) Right to be released after 24 hours unless the magistra
,authorises further detention.
,These safeguards are not available to an enemy alien or a
,person arrested or detained under a preventive detention law.
,The Supreme Court also ruled that the arrest and detention in
,the first part of Article 22 do not cover arrest under the orders of
,"a court, civil arrest, arrest on failure to pay the income tax, and"
,deportation of an alien. They apply only to an act of a criminal or
,quasi-criminal nature or some activity prejudicial to public
,interest.
,(b) The second part of Article 22 grants protection to persons who
,are arrested or detained under a preventive detention law. This
,protection is available to both citizens as well as aliens and
,includes the following:
,(i) The detention of a person cannot exceed three months unless
,advisory board reports sufficient cause for extended detentio
,The board is to consist of judges of a high court.
,(ii) The grounds of detention should be communicated to the deten
,"However, the facts considered to be against the public intere"
,need not be disclosed.
,(iii) The detenu should be afforded an opportunity to make
,representation against the detention order.
,Article 22 also authorises the Parliament to prescribe (a) the
,circumstances and the classes of cases in which a person can be
,detained for more than three months under a preventive detention law
,without obtaining the opinion of an advisory board; (b) the maximum
,period for which a person can be detained in any classes of cases
,under a preventive detention law; and (c) the procedure to be followed
,by an advisory board in an inquiry.
,The 44th Amendment Act of 1978 has reduced the period of
,detention without obtaining the opinion of an advisory board from
,"three to two months. However, this provision has not yet been brought"
,"into force, hence, the original period of three months still continues."
,The Constitution has divided the legislative power with regard to
,preventive detention between the Parliament and the state
,legislatures. The Parliament has exclusive authority to make a law of
,"preventive detention for reasons connected with defence, foreign"
,affairs and the security of India. Both the Parliament as well as the
,state legislatures can concurrently make a law of preventive detention
,"for reasons connected with the security of a state, the maintenance of"
,public order and the maintenance of supplies and services essential to
,the community.
,The preventive detention laws made by the Parliament are:
,"(a) Preventive Detention Act, 1950. Expired in 1969."
,"(b) Maintenance of Internal Security Act (MISA), 1971. Repealed in"
,1978
,(c) Conservation of Foreign Exchange and Prevention of Smuggling
,"Activities Act (COFEPOSA), 1974."
,"(d) National Security Act (NASA), 1980."
,(e) Prevention of Blackmarketing and Maintenance of Supplies of
,"Essential Commodities Act (PBMSECA), 1980."
,"(f) Terrorist and Disruptive Activities (Prevention) Act (TADA), 1985."
,Repealed in 1995.
,(g) Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic
,"Substances Act (PITNDPSA), 1988."
,"(h) Prevention of Terrorism Act (POTA), 2002. Repealed in 2004."
,"(i) Unlawful Activities (Prevention) Act (UAPA), 1967, as amended in"
,"2004, 2008, 2012 and 2019."
,It is unfortunate to know that no democratic country in the world has
,made preventive detention as an integral part of the Constitution as
,has been done in India. It is unknown in USA. It was resorted to in
,"Britain only during first and second world war time. In India, preventive"
,"detention existed even during the British rule. For example, the Bengal"
,State Prisoners Regulation of 1818 and the Defence of India Act of
,1939 provided for preventive detention.
, RIGHT AGAINST EXPLOITATION
,
,1. Prohibition of Traffic in Human Beings and Forced
,Labour
,"Article 23 prohibits traffic in human beings, begar (forced labour) and"
,other similar forms of forced labour. Any contravention of this provision
,shall be an offence punishable in accordance with law. This right is
,available to both citizens and non-citizens. It protects the individual not
,only against the State but also against private persons.
,The expression ‘traffic in human beings’ include (a) selling and
,"buying of men, women and children like goods; (b) immoral traffic in"
,"women and children, including prostitution; (c) devadasis; and (d)"
,"slavery. To punish these acts, the Parliament has made the Immoral"
,"Traffic (Prevention) Act13 , 1956."
,The term ‘begar ’ means compulsory work without remuneration. It
,was a peculiar Indian system under which the local zamin-dars
,sometimes used to force their tenants to render services without any
,"payment. In addition to begar, the Article 23 prohibits other ‘similar"
,forms of forced labour’ like ‘bonded labour’. The term ‘forced labour’
,means compelling a person to work against his will. The word ‘force’
,includes not only physical or legal force but also force arising from the
,"compulsion of economic circumstances, that is, working for less than"
,"the minimum wage. In this regard, the Bonded Labour System"
,"(Abolition) Act, 1976; the Minimum Wages Act, 1948; the Contract"
,"Labour Act, 1970 and the Equal Remuneration Act, 1976 were made."
,Article 23 also provides for an exception to this provision. It permits
,"the State to impose compulsory service for public purposes, as for"
,"example, military service or social service, for which it is not bound to"
,"pay. However, in imposing such service, the State is not permitted to"
,"make any discrimination on grounds only of religion, race, caste or"
,class.
,
,"2. Prohibition of Employment of Children in Factories, etc."
,Article 24 prohibits the employment of children below the age of 14
,"years in any factory, mine or other hazardous activities like"
,construction work or railway. But it does not prohibit their employment
,in any harmless or innocent work.
,"   The Child Labour (Prohibition and Regulation) Act, 1986, is the"
,"most important law in this direction. In addition, the Employment of"
,"Children Act, 1938; the Factories Act, 1948; the Mines Act, 1952; the"
,"Merchant Shipping Act, 1958; the Plantation Labour Act, 1951; the"
,"Motor Transport Workers Act, 1951; Apprentices Act, 1961; the Bidi"
,"and Cigar Workers Act, 1966; and other similar acts prohibit the"
,employment of children below certain age.
,"In 1996, the Supreme Court directed the establishment of Child"
,Labour Rehabilitation Welfare Fund in which the offending employer
,"should deposit a fine of ₹20,000 for each child employed by him. It"
,"also issued directions for the improvement of education, health and"
,nutrition of children.
,"The Commissions for Protection of Child Rights Act, 2005 was"
,enacted to provide for the establishment of a National Commission
,and State Commissions for Protection of Child Rights and Children’s
,Courts for providing speedy trial of offences against children or of
,violation of child rights.
,"In 2006, the government banned the employment of children as"
,"domestic servants or workers in business establishments like hotels,"
,"dhabas, restaurants, shops, factories, resorts, spas, tea-shops and so"
,on. It warned that anyone employing children below 14 years of age
,would be liable for prosecution and penal action.
,"The Child Labour (Prohibition and Regulation) Amendment Act,"
,"2016, amended the Child Labour (Prohibition and Regulation) Act,"
,1986. It has renamed the Principal Act as the Child and Adolescent
,"Labour (Prohibition and Regulation) Act, 1986."
, RIGHT TO FREEDOM OF RELIGION
,
,"1. Freedom of Conscience and Free Profession, Practice"
,and Propagation of Religion
,Article 25 says that all persons are equally entitled to freedom of
,"conscience and the right to freely profess, practice and propagate"
,religion. The implications of these are:
,(a) Freedom of conscience: Inner freedom of an individual to mould
,his relation with God or Creatures in whatever way he desires.
,(b) Right to profess: Declaration of one’s religious beliefs and faith
,openly and freely.
,"(c) Right to practice: Performance of religious worship, rituals,"
,ceremonies and exhibition of beliefs and ideas.
,(d) Right to propagate: Transmission and dissemination of one’s
,religious beliefs to others or exposition of the tenets of one’s
,"religion. But, it does not include a right to convert another person"
,to one’s own religion. Forcible conversions impinge on the
,‘freedom of conscience’ guaranteed to all the persons alike.
,"From the above, it is clear that Article 25 covers not only religious"
,"beliefs (doctrines) but also religious practices (rituals). Moreover,"
,these rights are available to all persons–citizens as well as non-
,citizens.
,"However, these rights are subject to public order, morality, health"
,"and other provisions relating to fundamental rights. Further, the State"
,is permitted to:
,"(a) regulate or restrict any economic, financial, political or other"
,secular activity associated with religious practice; and
,(b) provide for social welfare and reform or throw open Hindu
,religious institutions of a public character to all classes and
,sections of Hindus.
,"Article 25 also contains two explanations: one, wearing and"
,carrying of kirpans is to be included in the profession of the Sikh
,"religion; and two, the Hindus, in this context, include Sikhs, Jains and"
,Buddhists.14
,
,2. Freedom to Manage Religious Affairs
,"According to Article 26, every religious denomination or any of its"
,section shall have the following rights:
,  (a) Right to establish and maintain institutions for religious and
,charitable purposes;
,(b) Right to manage its own affairs in matters of religion;
,(c) Right to own and acquire movable and immovable property; and
,(d) Right to administer such property in accordance with law.
,"Article 25 guarantees rights of individuals, while Article 26"
,guarantees rights of religious denominations or their sections. In other
,"words, Article 26 protects collective freedom of religion. Like the rights"
,"under Article 25, the rights under Article 26 are also subject to public"
,"order, morality and health but not subject to other provisions relating to"
,the Fundamental Rights.
,The Supreme Court held that a religious denomination must satisfy
,three conditions:
,(a) It should be a collection of individuals who have a system of
,beliefs (doctrines) which they regard as conducive to their
,spiritual well-being;
,(b) It should have a common organisation; and
,(c) It should be designated by a distinctive name.
,"Under the above criteria, the Supreme Court held that the"
,‘Ramakrishna Mission’ and ‘Ananda Marga’ are religious
,denominations within the Hindu religion. It also held that Aurobindo
,Society is not a religious denomination.
,
,3. Freedom from Taxation for Promotion of a Religion
,Article 27 lays down that no person shall be compelled to pay any
,taxes for the promotion or maintenance of any particular religion or
,"religious denomination. In other words, the State should not spend the"
,public money collected by way of tax for the promotion or
,maintenance of any particular religion. This provision prohibits the
,"State from favouring, patronising and supporting one religion over the"
,other. This means that the taxes can be used for the promotion or
,maintenance of all religions.
,This provision prohibits only levy of a tax and not a fee. This is
,because the purpose of a fee is to control secular administration of
,"religious institutions and not to promote or maintain religion. Thus, a"
,fee can be levied on pilgrims to provide them some special service or
,"safety measures. Similarly, a fee can be levied on religious"
,endowments for meeting the regulation expenditure.
,
,4. Freedom from Attending Religious Instruction
,"Under Article 28, no religious instruction shall be provided in any"
,"educational institution wholly maintained out of State funds. However,"
,this provision shall not apply to an educational institution administered
,"by the State but established under any endowment or trust, requiring"
,imparting of religious instruction in such institution.
,"Further, no person attending any educational institution recognised"
,by the State or receiving aid out of State funds shall be required to
,attend any religious instruction or worship in that institution without his
,"consent. In case of a minor, the consent of his guardian is needed."
,"Thus, Article 28 distinguishes between four types of educational"
,institutions:
,(a) Institutions wholly maintained by the State.
,(b) Institutions administered by the State but established under any
,endowment or trust.
,(c) Institutions recognised by the State.
,(d) Institutions receiving aid from the State.
,"In (a), religious instruction is completely prohibited while in (b),"
,"religious instruction is permitted. In (c) and (d), religious instruction is"
,permitted on a voluntary basis.
, CULTURAL AND EDUCATIONAL RIGHTS
,
,1. Protection of Interests of Minorities
,Article 29 provides that any section of the citizens residing in any part
,"of India having a distinct language, script or culture of its own, shall"
,"have the right to conserve the same. Further, no citizen shall be"
,denied admission into any educational institution maintained by the
,"State or receiving aid out of State funds on grounds only of religion,"
,"race, caste, or language."
,The first provision protects the right of a group while the second
,provision guarantees the right of a citizen as an individual irrespective
,of the community to which he belongs.
,Article 29 grants protection to both religious minorities as well as
,"linguistic minorities. However, the Supreme Court held that the scope"
,"of this article is not necessarily restricted to minorities only, as it is"
,commonly assumed to be. This is because of the use of words
,‘section of citizens’ in the Article that include minorities as well as
,majority.
,The Supreme Court also held that the right to conserve the
,language includes the right to agitate for the protection of the
,"language. Hence, the political speeches or promises made for the"
,conservation of the language of a section of the citizens does not
,amount to corrupt practice under the Representation of the People
,"Act, 1951."
,
,2. Right of Minorities to Establish and Administer
,Educational Institutions
,"Article 30 grants the following rights to minorities, whether religious or"
,linguistic:
,(a) All minorities shall have the right to establish and administer
,educational institutions of their choice.
,(b) The compensation amount fixed by the State for the compulsory
,acquisition of any property of a minority educational institution
,shall not restrict or abrogate the right guaranteed to them. This
,provision was added by the 44th Amendment Act of 1978 to
,protect the right of minorities in this regard. The Act deleted the
,right to property as a Fundamental Right (Article 31).
,"  (c) In granting aid, the State shall not discriminate against any"
,educational institution managed by a minority.
,"Thus, the protection under Article 30 is confined only to minorities"
,(religious or linguistic) and does not extend to any section of citizens
,"(as under Article 29). However, the term ‘minority’ has not been"
,defined anywhere in the Constitution.
,The right under Article 30 also includes the right of a minority to
,impart education to its children in its own language.
,Minority educational institutions are of three types:
,(a) institutions that seek recognition as well as aid from the State;
,(b) institutions that seek only recognition from the State and not aid;
,and
,(c) institutions that neither seek recognition nor aid from the State.
,The institutions of first and second type are subject to the
,"regulatory power of the state with regard to syllabus prescription,"
,"academic standards, discipline, sanitation, employment of teaching"
,staff and so on. The institutions of third type are free to administer
,"their affairs but subject to operation of general laws like contract law,"
,"labour law, industrial law, tax law, economic regulations, and so on."
,In a judgement delivered in the Secretary of Malankara Syrian
,"Catholic College case14a (2007), the Supreme Court has summarized"
,the general principles relating to establishment and administration of
,minority educational institutions in the following way :
,1. The right of minorities to establish and administer educational
,institutions of their choice comprises the following rights :
,(i) To choose its governing body in whom the founders of
,institution have faith and confidence to conduct and manage
,affairs of the institution;
,(ii) To appoint teaching staff (teachers/ lecturers and he
,masters/princi-pals) as also non-teaching staff; and to take ac
,if there is dereliction of duty on the part of any of its employees
,(iii) To admit eligible students of their choice and to set u
,reasonable fee structure; and
,(iv) To use its properties and assets for the benefit of the institution
,2. The right conferred on minorities under Article 30 is only to
,ensure equality with the majority and not intended to place the
,minorities in a more advantageous position vis-a-vis the majority.
,There is no reverse discrimination in favour of minorities. The
,"general laws of the land relating to national interest, national"
,"security, social welfare, public order, morality, health, sanitation,"
,"   taxation etc., applicable to all, will equally apply to minority"
,institutions also.
,3. The right to establish and administer educational institutions is
,not absolute. Nor does it include the right to maladminister.
,There can be regulatory measures for ensuring educational
,character and standards and maintaining academic excellence.
,There can be checks on administration as are necessary to
,"ensure that the administration is efficient and sound, so as to"
,serve the academic needs of the institution. Regulations made
,by the State concerning generally the welfare of students and
,"teachers, regulations laying down eligibility criteria and"
,"qualifications for appointment, as also conditions of service of"
,"employees (both teaching and non-teaching), regulations to"
,"prevent exploitation or oppression of employees, and regulations"
,prescribing syllabus and curriculum of study fall under this
,category. Such regulations do not in any manner interfere with
,the right under Article 30(1).
,4. Subject to the eligibility conditions/ qualifications prescribed by
,"the State being met, the unaided minority educational institutions"
,will have the freedom to appoint teachers/lecturers by adopting
,any rational procedure of selection.
,"5. Extention of aid by the State, does not alter the nature and"
,character of the minority educational institutions. The conditions
,can be imposed by the State to ensure proper utilization of the
,"aid, without however diluting or abridging the right under Article"
,30(1).
, RIGHT TO CONSTITUTIONAL REMEDIES
,A mere declaration of fundamental rights in the Constitution is
,"meaningless, useless and worthless without providing an effective"
,"machinery for their enforcement, if and when they are violated. Hence,"
,Article 32 confers the right to remedies for the enforcement of the
,"fundamental rights of an aggrieved citizen. In other words, the right to"
,get the Fundamental Rights protected is in itself a fundamental right.
,This makes the fundamental rights real. That is why Dr. Ambedkar
,called Article 32 as the most important article of the Constitution–‘an
,Article without which this constitution would be a nullity. It is the very
,soul of the Constitution and the very heart of it’. The Supreme Court
,"has ruled that Article 32 is a basic feature of the Constitution. Hence, it"
,cannot be abridged or taken away even by way of an amendment to
,the Constitution. It contains the following four provisions:
,(a) The right to move the Supreme Court by appropriate
,proceedings for the enforcement of the Fundamental Rights is
,guaranteed.
,(b) The Supreme Court shall have power to issue directions or
,orders or writs for the enforcement of any of the fundamental
,"rights. The writs issued may include habeas corpus, mandamus,"
,"prohibition, certiorari and quo-warranto."
,"(c) Parliament can empower any other court to issue directions,"
,"orders and writs of all kinds. However, this can be done without"
,prejudice to the above powers conferred on the Supreme Court.
,Any other court here does not include high courts because Article
,226 has already conferred these powers on the high courts.
,(d) The right to move the Supreme Court shall not be suspended
,except as otherwise provided for by the Constitution. Thus the
,Constitution provides that the President can suspend the right to
,move any court for the enforcement of the fundamental rights
,during a national emergency (Article 359).
,It is thus clear that the Supreme Court has been constituted as the
,defender and guarantor of the fundamental rights of the citizens. It has
,been vested with the ‘original’ and ‘wide’ powers for that purpose.
,"Original, because an aggrieved citizen can directly go to the Supreme"
,"Court, not necessarily by way of appeal. Wide, because its power is"
,not restricted to issuing of orders or directions but also writs of all
,kinds.
,"   The purpose of Article 32 is to provide a guaranteed, effective,"
,"expeditious, inexpensive and summary remedy for the protection of"
,the fundamental rights. Only the Fundamental Rights guaranteed by
,the Constitution can be enforced under Article 32 and not any other
,"right like non-fundamental constitutional rights, statutory rights,"
,customary rights and so on. The violation of a fundamental right is the
,sine qua non for the exercise of the right conferred by Article 32. In
,"other words, the Supreme Court, under Article 32, cannot determine a"
,question that does not involve Fundamental Rights. Article 32 cannot
,be invoked simply to determine the constitutionality of an executive
,order or a legislation unless it directly infringes any of the fundamental
,rights.
,"In case of the enforcement of Fundamental Rights, the jurisdiction"
,of the Supreme Court is original but not exclusive. It is concurrent with
,the jurisdiction of the high court under Article 226. It vests original
,"powers in the high court to issue directions, orders and writs of all"
,kinds for the enforcement of the Fundamental Rights. It means when
,"the Fundamental Rights of a citizen are violated, the aggrieved party"
,has the option of moving either the high court or the Supreme Court
,directly.
,"Since the right guaranteed by Article 32 (ie, the right to move the"
,Supreme Court where a fundamental right is infringed) is in itself a
,"fundamental right, the availability of alternate remedy is no bar to relief"
,"under Article 32. However, the Supreme Court has ruled that where"
,"relief through high court is available under Article 226, the aggrieved"
,party should first move the high court.
, WRITS–TYPES AND SCOPE
,
,The Supreme Court (under Article 32) and the high courts (under
,"Article 226) can issue the writs of habeas corpus, mandamus,"
,"prohibition, certiorari and quo-warranto. Further, the Parliament (under"
,Article 32) can empower any other court to issue these writs. Since no
,"such provision has been made so far, only the Supreme Court and the"
,"high courts can issue the writs and not any other court. Before 1950,"
,"only the High Courts of Calcutta, Bombay and Madras had the power"
,to issue the writs. Article 226 now empowers all the high courts to
,issue the writs.
,These writs are borrowed from English law where they are known
,as ‘prerogative writs’. They are so called in England as they were
,"issued in the exercise of the prerogative of the King who was, and is"
,"still, described as the ‘fountain of justice’. Later, the high court started"
,issuing these writs as extraordinary remedies to uphold the rights and
,liberties of the British people.
,The writ jurisdiction of the Supreme Court differs from that of a high
,court in three respects:
,1. The Supreme Court can issue writs only for the enforcement of
,fundamental rights whereas a high court can issue writs not only
,for the enforcement of Fundamental Rights but also for any other
,purpose. The expression ‘for any other purpose’ refers to the
,"enforcement of an ordinary legal right. Thus, the writ jurisdiction"
,"of the Supreme Court, in this respect, is narrower than that of"
,high court.
,2. The Supreme Court can issue writs against a person or
,government throughout the territory of India whereas a high
,court can issue writs against a person residing or against a
,government or authority located within its territorial jurisdiction
,only or outside its territorial jurisdiction only if the cause of action
,"arises within its territorial jurisdiction.15 Thus, the territorial"
,jurisdiction of the Supreme Court for the purpose of issuing writs
,is wider than that of a high court.
,3. A remedy under Article 32 is in itself a Fundamental Right and
,"hence, the Supreme Court may not refuse to exercise its writ"
,"jurisdiction. On the other hand, a remedy under Article 226 is"
,"discretionary and hence, a high court may refuse to exercise its"
,writ jurisdiction. Article 32 does not merely confer power on the
,      Supreme Court as Article 226 does on a high court to issue writs
,for the enforcement of fundamental rights or other rights as part
,of its general jurisdiction. The Supreme Court is thus constituted
,as a defender and guarantor of the fundamental rights.
,"Now, we will proceed to understand the meaning and scope of"
,different kinds of writs mentioned in Articles 32 and 226 of the
,Constitution:
,
,Habeas Corpus
,It is a Latin term which literally means ‘to have the body of’. It is an
,order issued by the court to a person who has detained another
,"person, to produce the body of the latter before it. The court then"
,examines the cause and legality of detention. It would set the detained
,"person free, if the detention is found to be illegal. Thus, this writ is a"
,bulwark of individual liberty against arbitrary detention.
,The writ of habeas corpus can be issued against both public
,"authorities as well as private individuals. The writ, on the other hand,"
,"is not issued where the (a) detention is lawful, (b) the proceeding is for"
,"contempt of a legislature or a court, (c) detention is by a competent"
,"court, and (d) detention is outside the jurisdiction of the court."
,
,Mandamus
,It literally means ‘we command’. It is a command issued by the court
,to a public official asking him to perform his official duties that he has
,failed or refused to perform. It can also be issued against any public
,"body, a corporation, an inferior court, a tribunal or government for the"
,same purpose.
,The writ of mandamus cannot be issued (a) against a private
,individual or body; (b) to enforce departmental instruction that does
,not possess statutory force; (c) when the duty is discretionary and not
,mandatory; (d) to enforce a contractual obligation; (e) against the
,president of India or the state governors; and (f) against the chief
,justice of a high court acting in judicial capacity.
,
,Prohibition
,"Literally, it means ‘to forbid’. It is issued by a higher court to a lower"
,court or tribunal to prevent the latter from exceeding its jurisdiction or
,"usurping a jurisdiction that it does not possess. Thus, unlike"
,"mandamus that directs activity, the prohibition directs inactivity."
,   The writ of prohibition can be issued only against judicial and quasi-
,"judicial authorities. It is not available against administrative authorities,"
,"legislative bodies, and private individuals or bodies."
,
,Certiorari
,"In the literal sense, it means ‘to be certified’ or ‘to be informed’. It is"
,issued by a higher court to a lower court or tribunal either to transfer a
,case pending with the latter to itself or to squash the order of the latter
,in a case. It is issued on the grounds of excess of jurisdiction or lack of
,"jurisdiction or error of law. Thus, unlike prohibition, which is only"
,"preventive, certiorari is both preventive as well as curative."
,"Previously, the writ of certiorari could be issued only against judicial"
,and quasi-judicial authorities and not against administrative
,"authorities. However, in 1991, the Supreme Court ruled that the"
,certiorari can be issued even against administrative authorities
,affecting rights of individuals.
,"Like prohibition, certiorari is also not available against legislative"
,bodies and private individuals or bodies.
,
,Quo-Warranto
,"In the literal sense, it means ‘by what authority or warrant’. It is issued"
,by the court to enquire into the legality of claim of a person to a public
,"office. Hence, it prevents illegal usurpation of public office by a"
,person.
,The writ can be issued only in case of a substantive public office of
,a permanent character created by a statute or by the Constitution. It
,cannot be issued in cases of ministerial office or private office.
,"Unlike the other four writs, this can be sought by any interested"
,person and not necessarily by the aggrieved person.
, ARMED FORCES AND FUNDAMENTAL RIGHTS
,Article 33 empowers the Parliament to restrict or abrogate the
,"fundamental rights of the members of armed forces, para-military"
,"forces, police forces, intelligence agencies and analogous forces. The"
,objective of this provision is to ensure the proper discharge of their
,duties and the maintenance of discipline among them.
,The power to make laws under Article 33 is conferred only on
,Parliament and not on state legislatures. Any such law made by
,Parliament cannot be challenged in any court on the ground of
,contravention of any of the fundamental rights.
,"Accordingly, the Parliament has enacted the Army Act (1950), the"
,"Navy Act (1950), the Air Force Act (1950), the Police Forces"
,"(Restriction of Rights) Act, 1966, the Border Security Force Act and so"
,"on. These impose restrictions on their freedom of speech, right to form"
,"associations, right to be members of trade unions or political"
,"associations, right to communicate with the press, right to attend"
,"public meetings or demonstrations, etc."
,
,Table 7.3 Martial Law Vs National Emergency
,Martial Law                         National Emergency
,1. It affects only Fundamental      1. It     affects    not      only
,Rights.                             Fundamental Rights but also
,"Centre-state         relations,"
,distribution of revenues and
,legislative powers between
,centre and states and may
,extend the tenure of the
,Parliament.
,2. It suspends the government       2. It continues the government
,and ordinary law courts.            and ordinary law courts.
,3. It is imposed to restore the     3. I t can be imposed only on
,"breakdown of law and order          three grounds–war, external"
,due to any reason.                  aggression    or    armed
,rebellion.
,4. It is imposed in some specific   4. It is imposed either in the
,area of the country.                whole country or in any part
,                                           of it.
,5. I t has no specific provision in    5. I t has specific and detailed
,the Constitution. It is implicit.      provision in the Constitution.
,It is explicit.
,
,The expression‘members of the armed forces’ also covers such
,"employees of the armed forces as barbers, carpenters, mechanics,"
,"cooks, chowkidars, bootmakers, tailors who are non-combatants."
,A parliamentary law enacted under Article 33 can also exclude the
,court martial (tribunals established under the military law) from the writ
,"jurisdiction of the Supreme Court and the high courts, so far as the"
,enforcement of Fundamental Rights is concerned.
, MARTIAL LAW AND FUNDAMENTAL RIGHTS
,
,Article 34 provides for the restrictions on fundamental rights while
,martial law is in force in any area within the territory of India. It
,empowers the Parliament to indemnify any government servant or any
,other person for any act done by him in connection with the
,maintenance or restoration of order in any area where martial law was
,"in force. The Parliament can also validate any sentence passed,"
,"punishment inflicted, forfeiture ordered or other act done under martial"
,law in such area.
,The Act of Indemnity made by the Parliament cannot be challenged
,in any court on the ground of contravention of any of the fundamental
,rights.
,The concept of martial law has been borrowed in India from the
,"English common law. However, the expression ‘martial law’ has not"
,"been defined anywhere in the Constitution. Literally, it means ‘military"
,rule’. It refers to a situation where civil administration is run by the
,military authorities according to their own rules and regulations framed
,outside the ordinary law. It thus imply the suspension of ordinary law
,and the government by military tribunals. It is different from the military
,law that is applicable to the armed forces.
,There is also no specific or express provision in the Constitution
,"that authorises the executive to declare martial law. However, it is"
,implicit in Article 34 under which martial law can be declared in any
,area within the territory of India. The martial law is imposed under the
,"extraordinary circumstances like war, invasion, insurrection, rebellion,"
,riot or any violent resistance to law. Its justification is to repel force by
,force for maintaining or restoring order in the society.
,"During the operation of martial law, the military authorities are"
,vested with abnormal powers to take all necessary steps. They
,"impose restrictions and regulations on the rights of the civilians, can"
,punish the civilians and even condemn them to death.
,The Supreme Court held that the declaration of martial law does
,not ipso facto result in the suspension of the writ of habeas corpus.
,The declaration of a martial law under Article 34 is different from
,the declaration of a national emergency under Article 352. The
,differences between the two are summarised in Table 7.3.
, EFFECTING CERTAIN FUNDAMENTAL RIGHTS
,
,"Article 35 lays down that the power to make laws, to give effect to"
,certain specified fundamental rights shall vest only in the Parliament
,and not in the state legislatures. This provision ensures that there is
,uniformity throughout India with regard to the nature of those
,fundamental rights and punishment for their infringement. In this
,"direction, Article 35 contains the following provisions:"
,1. The Parliament shall have (and the legislature of a state shall not
,have) power to make laws with respect to the following matters:
,(a) Prescribing residence as a condition for certain employments or
,appointments in a state or union territory or local authority or
,other authority (Article 16).
,(b) Empowering courts other than the Supreme Court and the high
,"courts to issue directions, orders and writs of all kinds for the"
,enforcement of fundamental rights (Article 32).
,(c) Restricting or abrogating the application of Fundamental Rights
,"to members of armed forces, police forces, etc. (Article 33)."
,(d) Indemnifying any government servant or any other person for
,any act done during the operation of martial law in any area
,(Article 34).
,2. Parliament shall have (and the legislature of a state shall not have)
,powers to make laws for prescribing punishment for those acts that
,are declared to be offences under the fundamental rights. These
,include the following:
,(a) Untouchability (Article 17).
,(b) Traffic in human beings and forced labour (Article 23).
,"Further, the Parliament shall, after the commencement of the"
,"Constitution, make laws for prescribing punishment for the above acts,"
,thus making it obligatory on the part of the Parliament to enact such
,laws.
,3. Any law in force at the commencement of the Constitution with
,respect to any of the matters specified above is to continue in force
,until altered or repealed or amended by the Parliament.
,It should be noted that Article 35 extends the competence of the
,"Parliament to make a law on the matters specified above, even though"
,some of those matters may fall within the sphere of the state
,"legislatures (i.e., State List)."
, PRESENT POSITION OF RIGHT TO PROPERTY
,"Originally, the right to property was one of the seven fundamental"
,rights under Part III of the Constitution. It was dealt by Article 19(1) (f)
,and Article 31. Article 19(1)(f) guaranteed to every citizen the right to
,"acquire, hold and dispose of property. Article 31, on the other hand,"
,"guaranteed to every person, whether citizen or non-citizen, right"
,against deprivation of his property. It provided that no person shall be
,deprived of his property except by authority of law. It empowered the
,State to acquire or requisition the property of a person on two
,"conditions: (a) it should be for public purpose, and ( b) it should"
,provide for payment of compensation (amount) to the owner.
,"Since the commencement of the Constitution, the Fundamental"
,Right to Property has been the most controversial. It has caused
,confrontations between the Supreme Court and the Parliament. It has
,"led to a number of Constitutional amendments, that is, 1st, 4th, 7th,"
,"25th, 39th, 40th and 42nd Amendments. Through these amendments,"
,"Articles 31A, 31B and 31C have been added and modified from time"
,to time to nullify the effect of Supreme Court judgements and to
,protect certain laws from being challenged on the grounds of
,contravention of Fundamental Rights. Most of the litigation centred
,around the obligation of the state to pay compensation for acquisition
,or requisition of private property.
,"Therefore, the 44th Amendment Act of 1978 abolished the right to"
,property as a Fundamental Right by repealing Article 19(1) (f) and
,"Article 31 from Part III. Instead, the Act inserted a new Article 300A in"
,Part XII under the heading ‘Right to Property’. It provides that no
,person shall be deprived of his property except by authority of law.
,"Thus, the right to property still remains a legal right or a constitutional"
,"right, though no longer a fundamental right. It is not a part of the basic"
,structure of the Constitution.
,The right to property as a legal right (as distinct from the
,Fundamental Rights) has the following implications:
,"(a) It can be regulated ie, curtailed, abridged or modified without"
,constitutional amend-ment by an ordinary law of the Parliament.
,(b) It protects private property against executive action but not
,against legislative action.
,"(c) In case of violation, the aggrieved person cannot directly move"
,the Supreme Court under Article 32 (right to constitutional
,     remedies including writs) for its enforcement. He can move the
,High Court under Article 226.
,(d) No guaranteed right to compensation in case of acquisition or
,requisition of the private property by the state.
,Though the Fundamental Right to Property under Part III has been
,"abolished, the Part III still carries two provisions which provide for the"
,guaranteed right to compensation in case of acquisition or requisition
,of the private property by the state. These two cases where
,compensation has to be paid are:
,(a) When the State acquires the property of a minority educational
,institution (Article 30); and
,(b) When the State acquires the land held by a person under his
,personal cultivation and the land is within the statutory ceiling
,limits (Article 31 A).
,"The first provision was added by the 44th Amendment Act (1978),"
,while the second provision was added by the 17th Amendment Act
,(1964).
,"Further, Articles 31A, 31B and 31C have been retained as"
,exceptions to the fundamental rights.
, EXCEPTIONS TO FUNDAMENTAL RIGHTS
,
,"1. Saving of Laws Providing for Acquisition of Estates,"
,etc.
,Article 31A16 saves five categories of laws from being challenged and
,invalidated on the ground of contravention of the fundamental rights
,conferred by Article 14 (equality before law and equal protection of
,"laws) and Article 19 (protection of six rights in respect of speech,"
,"assembly, movement, etc.). They are related to agricultural land"
,"reforms, industry and commerce and include the following:"
,(a) Acquisition of estates17 and related rights by the State;
,(b) Taking over the management of properties by the State;
,(c) Amalgamation of corporations;
,(d) Extinguishment or modification of rights of directors or
,shareholders of corporations; and
,(e) Extinguishment or modification of mining leases.
,Article 31A does not immunise a state law from judicial review
,unless it has been reserved for the president’s consideration and has
,received his assent.
,This Article also provides for the payment of compensation at
,market value when the state acquires the land held by a person under
,his personal cultivation and the land is within the statutory ceiling limit.
,
,2. Validation of Certain Acts and Regulations
,Article 31B saves the acts and regulations included in the Ninth
,Schedule18 from being challenged and invalidated on the ground of
,"contravention of any of the fundamental rights. Thus, the scope of"
,Article 31B is wider than Article 31A. Article 31B immunises any law
,included in the Ninth Schedule from all the fundamental rights whether
,or not the law falls under any of the five categories specified in Article
,31A.
,"However, in a significant judgement delivered in I.R. Coelho"
,"case18a (2007), the Supreme Court ruled that there could not be any"
,blanket immunity from judicial review of laws included in the Ninth
,Schedule. The court held that judicial review is a ‘basic feature’ of the
,constitution and it could not be taken away by putting a law under the
,Ninth Schedule. It said that the laws placed under the Ninth Schedule
,"after April 24, 1973, are open to challenge in court if they violated"
,"fundamentals rights guaranteed under Articles 14, 15, 19 and 21 or"
,"the ‘basic structure’ of the constitution. It was on April 24, 1973, that"
,the Supreme Court first propounded the doctrine of ‘basic structure’ or
,‘basic features’ of the constitution in its landmark verdict in the
,Kesavananda Bharati Case.19
,"Originally (in 1951), the Ninth Schedule contained only 13 acts and"
,"regulations but at present (in 2016) their number is 282.20 Of these,"
,the acts and regulations of the state legislature deal with land reforms
,and abolition of the zamindari system and that of the Parliament deal
,with other matters.
,
,3. Saving of Laws Giving Effect to Certain Directive
,Principles
,"Article 31C, as inserted by the 25th Amendment Act of 1971,"
,contained the following two provisions:
,(a) No law that seeks to implement the socialistic directive principles
,specified in Article 39(b)21 or (c)22 shall be void on the ground of
,contravention of the fundamental rights conferred by Article 14
,(equality before law and equal protection of laws) or Article 19
,"(protection of six rights in respect of speech, assembly,"
,"movement, etc.)"
,(b) No law containing a declaration that it is for giving effect to such
,policy shall be questioned in any court on the ground that it does
,not give effect to such a policy.
,"In the Kesavananda Bharati case23 (1973), the Supreme Court"
,declared the above second provision of Article 31C as unconstitutional
,and invalid on the ground that judicial review is a basic feature of the
,"Constitution and hence, cannot be taken away. However, the above"
,first provision of Article 31C was held to be constitutional and valid.
,The 42nd Amendment Act (1976) extended the scope of the above
,first provision of Article 31C by including within its protection any law
,to implement any of the directive principles specified in Part IV of the
,"Constitution and not merely in Article 39 (b) or (c). However, this"
,extention was declared as unconstitutional and invalid by the
,Supreme Court in the Minerva Mills case24 (1980).
, CRITICISM OF FUNDAMENTAL RIGHTS
,The Fundamental Rights enshrined in Part III of the Constitution have
,met with a wide and varied criticism. The arguments of the critics are:
,
,1. Excessive Limitations
,"They are subjected to innumerable exceptions, restrictions,"
,"qualifications and explanations. Hence, the critics remarked that the"
,Constitution grants Fundamental Rights with one hand and takes them
,away with the other. Jaspat Roy Kapoor went to the extent of saying
,that the chapter dealing with the fundamental rights should be
,renamed as ‘Limitaions on Fundamental Rights’ or ‘Fundamental
,Rights and Limitations Thereon’.
,
,2. No Social and Economic Rights
,The list is not comprehensive as it mainly consists of political rights. It
,makes no provision for important social and economic rights like right
,"to social security, right to work, right to employment, right to rest and"
,leisure and so on. These rights are made available to the citizens of
,"advanced democratic countries. Also, the socialistic constitutions of"
,erstwhile USSR or China provided for such rights.
,
,3. No Clarity
,"They are stated in a vague, indefinite and ambiguous manner. The"
,"various phrases and words used in the chapter like ‘public order’,"
,"‘minorities’, ‘reasonable restriction’, ‘public interest’ and so on are not"
,clearly defined. The language used to describe them is very
,complicated and beyond the comprehension of the common man. It is
,alleged that the Constitution was made by the lawyers for the lawyers.
,Sir Ivor Jennings called the Constitution of India a ‘paradise for
,lawyers’.
,
,4. No Permanency
,They are not sacrosanct or immutable as the Parliament can curtail or
,"abolish them, as for example, the abolition of the fundamental right to"
,"property in 1978. Hence, they can become a play tool in the hands of"
,politicians having majority support in the Parliament. The judicially
,innovated ‘doctrine of basic structure’ is the only limitation on the
,authority of Parliament to curtail or abolish the fundamental right.
,
,5. Suspension During Emergency
,The suspension of their enforcement during the operation of National
,Emergency (except Articles 20 and 21) is another blot on the efficacy
,of these rights. This provision cuts at the roots of democratic system in
,the country by placing the rights of the millions of innocent people in
,"continuous jeopardy. According to the critics, the Fundamental Rights"
,should be enjoyable in all situations–Emergency or no Emergency.
,
,6. Expensive Remedy
,The judiciary has been made responsible for defending and protecting
,these rights against the interference of the legislatures and
,"executives. However, the judicial process is too expensive and hinders"
,the common man from getting his rights enforced through the courts.
,"Hence, the critics say that the rights benefit mainly the rich section of"
,the Indian Society.
,
,7. Preventive Detention
,The critics assert that the provision for preventive detention (Article
,22) takes away the spirit and substance of the chapter on fundamental
,rights. It confers arbitrary powers on the State and negates individual
,liberty. It justifies the criticism that the Constitution of India deals more
,with the rights of the State against the individual than with the rights of
,"the individual against the State. Notably, no democratic country in the"
,world has made preventive detention as an integral part of their
,Constitutions as has been made in India.
,
,8. No Consistent Philosophy
,"According to some critics, the chapter on fundamental rights is not the"
,product of any philosophical principle. Sir Ivor Jennings expressed this
,view when he said that the Fundamental Rights proclaimed by the
,Indian Constitution are based on no consistent phi-losophy.25 The
,critics say that this creates difficulty for the Supreme Court and the
,high courts in interpreting the fundamental rights.
, SIGNIFICANCE OF FUNDAMENTAL RIGHTS
,"In spite of the above criticism and shortcomings, the Fundamental"
,Rights are significant in the following respects:
,1. They constitute the bedrock of democratic system in the country.
,2. They provide necessary conditions for the material and moral
,protection of man.
,3. They serve as a formidable bulwark of individual liberty.
,4. They facilitate the establishment of rule of law in the country.
,5. They protect the interests of minorities and weaker sections of
,society.
,6. They strengthen the secular fabric of the Indian State.
,7. They check the absoluteness of the authority of the government.
,8. They lay down the foundation stone of social equality and social
,justice.
,9. They ensure the dignity and respect of individuals.
,10. They facilitate the participation of people in the political and
,administrative process.
, RIGHTS OUTSIDE PART III
,
,"Besides the Fundamental Rights included in Part III, there are certain"
,other rights contained in other parts of the Constitution. These rights
,are known as constitutional rights or legal rights or non-fundamental
,rights. They are:
,1. No tax shall be levied or collected except by authority of law
,(Article 265 in Part XII).
,2. No person shall be deprived of his property save by authority of
,law (Article 300-A in Part XII).
,"3. Trade, commerce and intercourse throughout the territory of"
,India shall be free (Article 301 in Part XIII).
,"Even though the above rights are also equally justiciable, they are"
,different from the Fundamental Rights. In case of violation of a
,"Fundamental Right, the aggrieved person can directly move the"
,"Supreme Court for its enforcement under Article 32, which is in itself a"
,"fundamental right. But, in case of violation of the above rights, the"
,aggrieved person cannot avail this constitutional remedy. He can
,move the High Court by an ordinary suit or under Article 226 (writ
,jurisdiction of high court).
,
,Table 7.4 Articles Related to Fundamental Rights at a Glance
,Article No.     Subject Matter
,General
,12.         Definition of State
,13.         Laws inconsistent with or in derogation of the
,Fundamental Rights
,Right to Equality
,14.         Equality before law
,"15.         Prohibition of discrimination on grounds of religion,"
,"race, caste, sex or place of birth"
,16.         Equality of opportunity in matters of public
,employment
,17.         Abolition of untouchability
,18.         Abolition of titles
,              Right to Freedom
,19.    Protection of certain rights regarding freedom of
,"speech, etc."
,20.    Protection in respect of conviction for offences
,21.    Protection of life and personal liberty
,21A.   Right to education
,22.    Protection against arrest and detention in certain
,cases
,Right against Exploitation
,23.    Prohibition of traffic in human beings and forced
,labour
,"24.    Prohibition of employment of children in factories,"
,etc.
,Right to Freedom of Religion
,"25.    Freedom of conscience and free profession,"
,practice and propagation of religion
,26.    Freedom to manage religious affairs
,27.    Freedom as to payment of taxes for promotion of
,any particular religion
,28.    Freedom as to attendance at religious instruction
,or religious worship in certain educational
,institutions.
,Cultural and Educational Rights
,29.    Protection of interests of minorities
,30.    Right of minorities to establish and administer
,educational institutions
,Right to Property (Repealed)
,31.    Compulsory acquisition of property–(Repealed)
,Saving of Certain Laws
,"31A.   Saving of laws providing for acquisition of estates,"
,etc.
,31B.   Validation of certain Acts and Regulations
,31C.   Saving of laws giving effect to certain directive
,                principles
,31D.        Saving of laws in respect of anti-national activities–
,(Repealed)
,Right to Constitutional Remedies
,32.        Remedies for enforcement of rights conferred by
,this part
,32A.        Constitutional validity of State laws not to be
,considered in proceedings under Article 32–
,(Repealed)
,33.        Power of Parliament to modify the rights conferred
,"by this part in their application to forces, etc."
,34.        Restriction on rights conferred by this part while
,martial law is in force in any area
,35.        Legislation to give effect to the provisions of this
,part
,
,
,NOTES AND REFERENCES
,1. ‘Magna Carta’ is the Charter of Rights issued by King John
,of England in 1215 under pressure from the barons. This is
,the first written document relating to the Fundamental Rights
,of citizens.
,"2. Kesavananda Bharati vs. State of Kerala, (1973)."
,"3. Dicey observe: “No man is above the law, but every man,"
,"whatever be his rank or condition, is subject to the ordinary"
,law of the realm and amenable to the jurisdiction of the
,ordinary tribunals. Every official from the Prime Minister
,"down to a constable or a collector of taxes, is under the"
,same responsibility for every act done without legal
,"justification as any other citizen”. (A.V. Dicey, Introduction to"
,"the Study of the Law of the Constitution, Macmillan, 1931"
,Edition P. 183–191).
,4. This second provision was added by the first Amendment
,Act of 1951.
,5. By virtue of Article 371D inserted by the 32nd Amendment
,Act of 1973.
,5a. Article 371D has been extended to the state of Telangana
,"by the Andhra Pradesh Reorganisation Act, 2014."
,  6. The first Backward Classes Commission was appointed in
,1953 under the chairmanship of Kaka Kalelkar. It submitted
,its report in 1955.
,"7. In 1963, the Supreme Court ruled that more than 50%"
,reservation of jobs in a single year would be
,unconstitutional.
,"8. Indra Sawhney v. Union of India, (1992)."
,"9. The Tamil Nadu Backward Classes, Scheduled Castes and"
,Scheduled Tribes (Reservation of seats in educational
,institutions and of appointments or posts in the services
,"under the state) Act, 1994."
,"10. Balaji Raghavan v. Union of India, (1996)."
,10a. The provision for “co-operative societies” was made by the
,97th Constitutional Amendment Act of 2011.
,10b. Ibid.
,"11. A K Gopalan v. State of Madras, (1950)."
,"12. Menaka Gandhi v. Union of India, (1978)."
,"12a. The Constitution (Eighty-sixth amendment) Act, 2002 and"
,the Right of Children to Free and Compulsory Education
,"Act, 2009 have come into force w.e.f. 1 April 2010."
,13. Originally known as the Suppression of Immoral Traffic in
,"Women and Girls Act, 1956."
,"14. In this clause, the reference to Hindus shall be construed as"
,"including a reference to persons professing the Sikh, Jaina"
,and Buddhist religion and the reference to Hindu religious
,institutions shall be construed accordingly (Article 25).
,14a. Secretary of the Malankara Syrian Catholic College vs. T.
,Jose (2007).
,15. The second provision was added by the 15th Constitutional
,Amendment Act of 1963.
,16. Added by the 1st Constitutional Amendment Act of 1951
,"and amended by the 4th, 17th and 44th Amendments."
,"17. The expression ‘estate’ includes any jagir, inam, muafi or"
,"other similar grant, any janmam right in Tamil Nadu and"
,Kerala and any land held for agricultural purposes.
,18. Article 31B along with the Ninth Schedule was added by the
,1st Constitutional Amendment Act of 1951.
,18a. I.R. Coelho vs. State of Tamil Nadu (2007).
,"19. Kesavananda Bharati v. State of Kerala, (1973)."
,"20. Though the last entry is numbered 284, the actual total"
,"number is 282. This is because, the three entries (87, 92"
,and 130) have been deleted and one entry is numbered as
,257A.
,21. Article 39 (b) says–The State shall direct its policy towards
,securing that the ownership and control of the material
,resources of the community are so distributed as best to
,subserve the common good.
,22. Article 39 (c) says–The state shall direct its policy towards
,securing that the operation of the economic system does
,not result in the concentration of wealth and means of
,production to the common detriment.
,"23. Kesavananda Bharati v. State of Kerala, (1973)."
,"24. Minerva Mills v. Union of India, (1980)."
,25. Sir Ivor Jennings wrote: ‘A thread of nineteenth century
,liberalism runs through it; there are consequences of the
,political problems of Britain in it; there are relics of the bitter
,experience in opposition to British rule; and there is
,evidence of a desire to reform some of the social institutions
,which time and circumstances have developed in India. The
,"result is a series of complex formulae, in twenty-four"
,"articles, some of them lengthy, which must become the"
,basis of a vast and complicated case law’.
, 8      Directive Principles of State Policy
,
,
,
,
,T
,he Directive Principles of State Policy are enumerated in
,Part IV of the Constitution from Articles 36 to 511. The
,framers of the Constitution borrowed this idea from the Irish
,"Constitution of 1937, which had copied it from the Spanish"
,Constitution. Dr. B.R. Ambedkar described these principles as
,‘novel features’ of the Indian Constitution. The Directive Principles
,along with the Fundamental Rights contain the philosophy of the
,Constitution and is the soul of the Constitution. Granville Austin
,has described the Directive Principles and the Fundamental
,Rights as the ‘Conscience of the Constitution’2 .
,FEATURES OF THE DIRECTIVE PRINCIPLES
,
,1. The phrase ‘Directive Principles of State Policy’ denotes the
,ideals that the State should keep in mind while formulating
,policies and enacting laws. These are the constitutional
,"instructions or recommendations to the State in legislative,"
,executive and administrative matters. According to Article
,"36, the term ‘State’ in Part IV has the same meaning as in"
,"Part III dealing with Fundamental Rights. Therefore, it"
,includes the legislative and executive organs of the central
,"and state governments, all local authorities and all other"
,public authorities in the country.
,2. The Directive Principles resemble the ‘Instrument of
,Instructions’ enumerated in the Government of India Act of
,"1935. In the words of Dr. B.R. Ambedkar, ‘the Directive"
,"Principles are like the instrument of instructions, which were"
,issued to the Governor-General and to the Governors of the
,colonies of India by the British Government under the
,Government of India Act of 1935. What is called Directive
,Principles is merely another name for the instrument of
,instructions. The only difference is that they are instructions
,to the legislature and the executive’.
,3. The Directive Principles constitute a very comprehensive
,"economic, social and political programme for a modern"
,democratic State. They aim at realising the high ideals of
,"justice, liberty, equality and fraternity as outlined in the"
,Preamble to the Constitution. They embody the concept of a
,"‘welfare state’ and not that of a ‘police state’, which existed"
,"during the colonial era3. In brief, they seek to establish"
,economic and social democracy in the country.
,"4. The Directive Principles are non-justiciable in nature, that is,"
,they are not legally enforceable by the courts for their
,"violation. Therefore, the government (Central, state and"
,local) cannot be compelled to implement them.
,"Nevertheless, the Constitution (Article 37) itself says that"
,these principles are fundamental in the governance of the
,   country and it shall be the duty of the State to apply these
,principles in making laws.
,"5. The Directive Principles, though non-justiciable in nature,"
,help the courts in examining and determining the
,constitutional validity of a law. The Supreme Court has ruled
,many a times that in determining the constitutionality of any
,"law, if a court finds that the law in question seeks to give"
,"effect to a Directive Principle, it may consider such law to be"
,‘reasonable’ in relation to Article 14 (equality before law) or
,Article 19 (six freedoms) and thus save such law from
,unconstitutionality.
, CLASSIFICATION OF THE DIRECTIVE PRINCIPLES
,
,The Constitution does not contain any classification of Directive
,"Principles. However, on the basis of their content and direction,"
,"they can be classified into three broad categories, viz, socialistic,"
,Gandhian and liberal-intellectual.
,
,Socialistic Principles
,These principles reflect the ideology of socialism. They lay down
,"the framework of a democratic socialist state, aim at providing"
,"social and economic justice, and set the path towards welfare"
,state. They direct the state:
,1. To promote the welfare of the people by securing a social
,"order permeated by justice–social, economic and politi-cal–"
,"and to minimise inequalities in income, status, facilities and"
,opportuni-ties4 (Article 38).
,2. To secure (a) the right to adequate means of livelihood for all
,citizens; (b) the equitable distribution of material resources
,of the community for the common good; (c) prevention of
,concentration of wealth and means of production; (d) equal
,pay for equal work for men and women; (e) preservation of
,the health and strength of workers and children against
,forcible abuse; and (f) opportunities for healthy development
,of children5 (Article 39).
,3. To promote equal justice and to provide free legal aid to the
,poor6 (Article 39 A).
,"4. To secure the right to work, to education and to public"
,"assistance in cases of unemployment, old age, sickness and"
,disablement (Article 41).
,5. To make provision for just and humane conditions of work
,and maternity relief (Article 42).
,"6. To secure a living wage7 , a decent standard of life and"
,social and cultural opportunities for all workers (Article 43).
,7. To take steps to secure the participation of workers in the
,management of indus-tries8 (Article 43 A).
,  8. To raise the level of nutrition and the standard of living of
,people and to improve public health (Article 47).
,
,Gandhian Principles
,These principles are based on Gandhian ideology. They represent
,the programme of reconstruction enunciated by Gandhi during the
,"national movement. In order to fulfil the dreams of Gandhi, some"
,of his ideas were included as Directive Principles. They require
,the State:
,1. To organise village panchayats and endow them with
,necessary powers and authority to enable them to function
,as units of self-government (Article 40).
,2. To promote cottage industries on an individual or co-
,operation basis in rural areas (Article 43).
,"3. To promote voluntary formation, autonomous functioning,"
,democratic control and professional management of
,cooperative societies8a (Article 43B).
,"4. To promote the educational and economic interests of SCs,"
,"STs, and other weaker sections of the society and to protect"
,them from social injustice and exploitation (Article 46).
,5. To prohibit the consumption of intoxicating drinks and drugs
,which are injurious to health (Article 47).
,"6. To prohibit the slaughter of cows, calves and other milch and"
,draught cattle and to improve their breeds (Article 48).
,
,Liberal-Intellectual Principles
,The principles included in this category represent the ideology of
,liberalism. They direct the state:
,1. To secure for all citizens a uniform civil code throughout the
,country (Article 44).
,2. To provide early childhood care and education for all
,children until they complete the age of six years9 (Article 45).
,3. To organise agriculture and animal husbandry on modern
,and scientific lines (Article 48).
,4. To protect and improve the environment and to safeguard
,forests and wild life10 (Article 48 A).
,"5. To protect monuments, places and objects of artistic or"
,historic interest which are declared to be of national
,importance (Article 49).
,6. To separate the judiciary from the executive in the public
,services of the State (Article 50).
,7. To promote international peace and security and maintain
,just and honourable relations between nations; to foster
,"respect for international law and treaty obligations, and to"
,encourage settlement of international disputes by arbitration
,(Article 51).
, NEW DIRECTIVE PRINCIPLES
,
,The 42nd Amendment Act of 1976 added four new Directive
,Principles to the original list. They require the State:
,1. To secure opportunities for healthy development of children
,(Article 39).
,2. To promote equal justice and to provide free legal aid to the
,poor (Article 39 A).
,3. To take steps to secure the participation of workers in the
,management of industries (Article 43 A).
,4. To protect and improve the environment and to safeguard
,forests and wild life (Article 48 A).
,The 44th Amendment Act of 1978 added one more Directive
,"Principle, which requires the State to minimise inequalities in"
,"income, status, facilities and opportunities (Article 38)."
,The 86th Amendment Act of 2002 changed the subject-matter
,of Article 45 and made elementary education a fundamental right
,under Article 21 A. The amended directive requires the State to
,provide early childhood care and education for all children until
,they complete the age of six years.
,The 97th Amendment Act of 2011 added a new Directive
,Principle relating to cooperative societies. It requires the state to
,"promote voluntary formation, autonomous functioning, democratic"
,control and professional management of co-operative societies
,(Article 43B).
, SANCTION BEHIND DIRECTIVE PRINCIPLES
,
,"Sir B.N. Rau, the Constitutional Advisor to the Constituent"
,"Assembly, recommended that the rights of an individual should be"
,"divided into two categories–justiciable and non-justiciable, which"
,"was accepted by the Drafting Committee. Consequently, the"
,"Fundamental Rights, which are justiciable in nature, are"
,"incorporated in Part III and the Directive Principles, which are non-"
,"justiciable in nature, are incorporated in Part IV of the"
,Constitution.
,"Though the Directive Principles are non-justiciable, the"
,Constitution (Article 37) makes it clear that ‘these principles are
,fundamental in the governance of the country and it shall be the
,"duty of the state to apply these principles in making laws’. Thus,"
,they impose a moral obligation on the state authorities for their
,"application, but the real force behind them is political, that is,"
,"public opinion. As observed by Alladi Krishna Swamy Ayyar, ‘no"
,ministry responsible to the people can afford light-heartedly to
,"ignore the provisions in Part IV of the Constitution’. Similarly, Dr."
,B.R. Ambedkar said in the Constituent Assembly that ‘a
,government which rests on popular vote can hardly ignore the
,Directive Principles while shaping its policy. If any government
,"ignores them, it will certainly have to answer for that before the"
,electorate at the election time’11 .
,The framers of the Constitution made the Directive Principles
,non-justiciable and legally non-enforceable because:
,1. The country did not possess sufficient financial resources to
,implement them.
,2. The presence of vast diversity and backwardness in the
,country would stand in the way of their implementation.
,3. The newly born independent Indian State with its many
,preoccupations might be crushed under the burden unless it
,"was free to decide the order, the time, the place and the"
,mode of fulfilling them.
,"‘The Constitution makers, therefore, taking a pragmatic view,"
,refrained from giving teeth to these principles. They believed more
,in an awakened public opinion rather than in court procedures as
,the ultimate sanction for the fulfilment of these principles’12 .
, CRITICISM OF THE DIRECTIVE PRINCIPLES
,
,The Directive Principles of State Policy have been criticised by
,some members of the Constituent Assembly as well as other
,constitutional and political experts on the following grounds:
,
,1. No Legal Force
,The Directives have been criticised mainly because of their non-
,justiciable character. While K.T. Shah dubbed them as ‘pious
,"superfluities’ and compared them with ‘a cheque on a bank,"
,"payable only when the resources of the bank permit’13 ,"
,Nasiruddin contended that these principles are ‘no better than the
,"new year’s resolutions, which are broken on the second of"
,January’. Even as T.T. Krishnamachari described the Directives as
,"‘a veritable dustbin of sentiments’, K C Wheare called them as a"
,‘manifesto of aims and aspirations’ and opined that they serve as
,"mere ‘moral homily’, and Sir Ivor Jennings thought they are only"
,as ‘pious aspirations’.
,
,2. Illogically Arranged
,Critics opine that the Directives are not arranged in a logical
,manner based on a consistent philosophy. According to N
,"Srinivasan, ‘the Directives are neither properly classified nor"
,logically arranged. The declaration mixes up relatively unimportant
,issues with the most vital economic and social questions. It
,combines rather incongruously the modern with the old and
,provisions suggested by the reason and science with provisions
,based purely on sentiment and prejudice’14. Sir Ivor Jennings too
,pointed out that these principles have no consistent philosophy.
,
,3. Conservative
,"According to Sir Ivor Jennings, the Directives are based on the"
,political philosophy of the 19th century England. He remarked:
,‘The ghosts of Sydney Webb and Beatrice Webb stalk through the
,pages of the text. Part IV of the Constitution expresses Fabian
,Socialism without the socialism’. He opined that the Directives ‘are
,deemed to be suitable in India in the middle of the twentieth
,century. The question whether they are suitable for the twenty-first
,century cannot be answered; but it is quite probable that they will
,be entirely out moded.15
,
,4. Constitutional Conflict
,K Santhanam has pointed out that the Directives lead to a
,"constitutional conflict (a) between the Centre and the states, (b)"
,"between the President and the Prime Minister, and (c) between"
,"the governor and the chief minister. According to him, the Centre"
,can give directions to the states with regard to the implementation
,"of these principles, and in case of non-compliance, can dismiss"
,"the state government. Similarly, when the Prime Minister gets a"
,bill (which violates the Directive Principles) passed by the
,"Parliament, the president may reject the bill on the ground that"
,these principles are fundamental to the governance of the country
,"and hence, the ministry has no right to ignore them. The same"
,constitutional conflict may occur between the governor and the
,chief minister at the state level.
, UTILITY OF DIRECTIVE PRINCIPLES
,
,"In spite of the above criticisms and shortcomings, the Directive"
,Principles are not an unnecessary appendage to the Constitution.
,The Constitution itself declares that they are fundamental to the
,"governance of the country. According to L.M. Singhvi, an eminent"
,"jurist and diplomat, ‘the Directives are the life giving provisions of"
,the Constitution. They constitute the stuff of the Constitution and
,"its philosophy of social justice’16. M.C. Chagla, former Chief"
,"Justice of India, is of the opinion that, ‘if all these principles are"
,"fully carried out, our country would indeed be a heaven on earth."
,"India would then be not only democracy in the political sense, but"
,also a welfare state looking after the welfare of its citizens’17. Dr.
,B.R. Ambedkar had pointed out that the Directives have great
,value because they lay down that the goal of Indian polity is
,‘economic democracy’ as distinguished from ‘political democracy’.
,Granville Austin opined that the Directive Principles are ‘aimed at
,furthering the goals of the social revolution or to foster this
,revolution by establishing the conditions necessary for its
,"achivement’18. Sir B.N. Rau, the constitutional advisor to the"
,"Constituent Assembly, stated that the Directive Principles are"
,intended as ‘moral precepts for the authorities of the state. They
,have at least an educative value.’
,"According to M.C. Setalvad, the former Attorney General of"
,"India, the Directive Principles, although confer no legal rights and"
,"create no legal remedies, are significant and useful in the"
,following ways:
,1. They are like an ‘Instrument of Instructions’ or general
,recommendations addressed to all authorities in the Indian
,Union. They remind them of the basic principles of the new
,"social and economic order, which the Constitution aims at"
,building.
,2. They have served as useful beacon-lights to the courts.
,They have helped the courts in exercising their power of
,"judicial review, that is, the power to determine the"
,constitutional validity of a law.
,"  3. They form the dominating background to all State action,"
,legislative or executive and also a guide to the courts in
,some respects.
,"4. They amplify the Preamble, which solemnly resolves to"
,"secure to all citizens of India justice, liberty, equality and"
,fraternity.
,The Directives also play the following roles:
,1. They facilitate stability and continuity in domestic and foreign
,"policies in political, economic and social spheres in spite of"
,the changes of the party in power.
,2. They are supplementary to the fundamental rights of the
,citizens. They are intended to fill in the vacuum in Part III by
,providing for social and economic rights.
,3. Their implementation creates a favourable atmosphere for
,the full and proper enjoyment of the fundamental rights by
,"the citizens. Political democracy, without economic"
,"democracy, has no meaning."
,4. They enable the opposition to exercise influence and control
,over the operations of the government. The Opposition can
,blame the ruling party on the ground that its activities are
,opposed to the Directives.
,5. They serve as a crucial test for the performance of the
,government. The people can examine the policies and
,programmes of the government in the light of these
,constitutional declarations.
,"6. They serve as common political manifesto. ‘A ruling party,"
,"irrespective of its political ideology, has to recognise the fact"
,"that these principles are intended to be its guide,"
,philosopher and friend in its legislative and executive acts’19
,.
, CONFLICT BETWEEN FUNDAMENTAL RIGHTS AND
,DIRECTIVE PRINCIPLES
,
,The justiciability of Fundamental Rights and non-justiciability of
,Directive Principles on the one hand and the moral obligation of
,State to implement Directive Principles (Article 37) on the other
,hand have led to a conflict between the two since the
,commencement of the Constitution. In the Champakam Dorairajan
,"case20 (1951), the Supreme Court ruled that in case of any"
,conflict between the Fundamental Rights and the Directive
,"Principles, the former would prevail. It declared that the Directive"
,Principles have to conform to and run as subsidiary to the
,"Fundamental Rights. But, it also held that the Fundamental Rights"
,could be amended by the Parliament by enacting constitutional
,"amendment acts. As a result, the Parliament made the First"
,"Amendment Act (1951), the Fourth Amendment Act (1955) and"
,the Seventeenth Amendment Act (1964) to implement some of the
,Directives.
,The above situation underwent a major change in 1967
,following the Supreme Court’s judgement in the Golaknath case21
,"(1967). In that case, the Supreme Court ruled that the Parliament"
,"cannot take away or abridge any of the Fundamental Rights,"
,"which are ‘sacrosanct’ in nature. In other words, the Court held"
,that the Fundamental Rights cannot be amended for the
,implementation of the Directive Principles.
,The Parliament reacted to the Supreme Court’s judgement in
,the Golaknath Case (1967) by enacting the 24th Amendment Act
,(1971) and the 25th Amendment Act (1971). The 24th
,Amendment Act declared that the Parliament has the power to
,abridge or take away any of the Fundamental Rights by enacting
,Constitutional Amendment Acts. The 25th Amendment Act
,inserted a new Article 31C which contained the following two
,provisions:
,1. No law which seeks to implement the socialistic Directive
,Principles specified in Article 39 (b)22 and (c)23 shall be void
,on the ground of contravention of the Fundamental Rights
,conferred by Article 14 (equality before law and equal
,"      protection of laws), Article 19 (protection of six rights in"
,"respect of speech, assembly, movement, etc) or Article 31"
,(right to property).
,2. No law containing a declaration for giving effect to such
,policy shall be questioned in any court on the ground that it
,does not give effect to such a policy.
,"In the Kesavananda Bharati case24 (1973), the Supreme Court"
,declared the above second provision of Article 31C as
,unconstitutional and invalid on the ground that judicial review is a
,"basic feature of the Constitution and hence, cannot be taken"
,"away. However, the above first provision of Article 31C was held"
,to be constitutional and valid.
,
,Table 8.1 Distinction Between Fundamental Rights and Directive
,Principles
,Fundamental Rights                  Directive Principles
,1. These are negative as they       1. These are positive as they
,prohibit the State from             require the State to do
,doing certain things.               certain things.
,"2. These are justiciable, that      2. These are non-justiciable,"
,"is,   they     are     legally      that is, they are not legally"
,enforceable by the courts in        enforceable by the courts
,case of their violation.            for their violation.
,3. They aim at establishing         3. They aim at establishing
,political democracy in the          social  and      economic
,country.                            democracy in the country.
,4. These      have         legal    4. These have moral         and
,sanctions.                          political sanctions.
,5. They promote the welfare         5. They promote the welfare
,"of the individual. Hence,           of the community. Hence,"
,they are personal and               they are societarian and
,individualistic.                    socialistic.
,6. They do not require any          6. They require legislation for
,legislation for    their            their implementation. They
,     implementation. They are          are    not     automatically
,automatically enforced.           enforced.
,7. The courts are bound to         7. The courts cannot declare
,declare a law violative of         a law violative of any of the
,any of the Fundamental             Directive    Principles     as
,Rights as unconstitutional         unconstitutional and invalid.
,"and invalid.                       However, they can uphold"
,the validity of a law on the
,ground that it was enacted
,to give effect to a directive.
,
,"Later, the 42nd Amendment Act (1976) extended the scope of"
,the above first provision of Article 31C by including within its
,protection any law to implement any of the Directive Principles
,and not merely those specified in Article 39 (b) and (c). In other
,"words, the 42nd Amendment Act accorded the position of legal"
,primacy and supremacy to the Directive Principles over the
,"Fundamental Rights conferred by Articles 14, 19 and 31."
,"However, this extension was declared as unconstitutional and"
,invalid by the Supreme Court in the Minerva Mills case25 (1980). It
,means that the Directive Principles were once again made
,subordinate to the Fundamental Rights. But the Fundamental
,Rights conferred by Article 14 and Article 19 were accepted as
,subordinate to the Directive Principles specified in Article 39 (b)
,"and (c). Further, Article 31 (right to property) was abolished by the"
,44th Amendment Act (1978).
,"In the Minerva Mills case (1980), the Supreme Court also held"
,that ‘the Indian Constitution is founded on the bedrock of the
,balance between the Fundamental Rights and the Directive
,Principles. They together constitute the core of commitment to
,"social revolution. They are like two wheels of a chariot, one no"
,less than the other. To give absolute primacy to one over the other
,is to disturb the harmony of the Constitution. This harmony and
,balance between the two is an essential feature of the basic
,structure of the Constitution. The goals set out by the Directive
,Principles have to be achieved without the abrogation of the
,means provided by the Fundamental Rights’.
,"   Therefore, the present position is that the Fundamental Rights"
,"enjoy supremacy over the Directive Principles. Yet, this does not"
,mean that the Directive Principles cannot be implemented. The
,Parliament can amend the Fundamental Rights for implementing
,"the Directive Principles, so long as the amendment does not"
,damage or destroy the basic structure of the Constitution.
, IMPLEMENTATION OF DIRECTIVE PRINCIPLES
,
,"Since 1950, the successive governments at the Centre and in the"
,states have made several laws and formulated various
,programmes for implementing the Directive Principles. These are
,mentioned below:
,1. The Planning Commission was established in 1950 to take
,up the development of the country in a planned manner. The
,successive Five Year Plans aimed at securing socio-
,"economic justice and reducing inequalities of income, status"
,"and opportunities. In 2015, the Planning Commission was"
,replaced by a new body called NITI Aayog (National
,Institution for Transforming India).
,2. Almost all the states have passed land reform laws to bring
,changes in the agrarian society and to improve the
,conditions of the rural masses. These measures include (a)
,"abolition of intermediaries like zamindars, jagirdars,"
,"inamdars, etc; (b) tenancy reforms like security of tenure, fair"
,"rents, etc; (c) imposition of ceilings on land holdings; (d)"
,distribution of surplus land among the landless labourers;
,and (e) cooperative farming.
,"3. The Minimum Wages Act (1948), the Payment of Wages Act"
,"(1936), the Payment of Bonus Act (1965), the Contract"
,"Labour Regulation and Abolition Act (1970), the Child"
,"Labour Prohibition and Regulation Act (1986), the Bonded"
,"Labour System Abolition Act (1976), the Trade Unions Act"
,"(1926), the Factories Act (1948), the Mines Act (1952), the"
,"Industrial     Disputes    Act    (1947),  the     Workmen’s"
,Compensation Act (1923) and so on have been enacted to
,"protect the interests of the labour sections. In 2006, the"
,"government banned the child labour. In 2016, the Child"
,Labour Prohibition and Regulation Act (1986) was renamed
,as the Child and Adolescent Labour Prohibition and
,"Regulation Act, 1986."
,4. The Maternity Benefit Act (1961) and the Equal
,Remuneration Act (1976) have been made to protect the
,interests of women workers.
, 5. Various measures have been taken to utilise the financial
,resources for promoting the common good.These include
,"nationalisation of life insurance (1956), the nationalisation of"
,"fourteen leading commercial banks (1969), nationalisation of"
,"general insurance (1971), abolition of Privy Purses (1971)"
,and so on.
,6. The Legal Services Authorities Act (1987) has established a
,nation-wide network to provide free and competent legal aid
,to the poor and to organise lok adalat for promoting equal
,justice. Lok adalat is a statutory forum for conciliatory
,settlement of legal disputes. It has been given the status of a
,"civil court. Its awards are enforceable, binding on the parties"
,and final as no appeal lies before any court against them.
,"7. Khadi and Village Industries Board, Khadi and Village"
,"Industries Commission, Small-Scale Industries Board,"
,"National Small Industries Corporation, Handloom Board,"
,"Handicrafts Board, Coir Board, Silk Board and so on have"
,been set up for the development of cottage industries in rural
,areas.
,"8. The Community Development Programme (1952), Hill Area"
,"Development Programme (1960), Drought-Prone Area"
,"Programme (1973), Minimum Needs Programme (1974),"
,"Integrated Rural Development Programme (1978), Jawahar"
,"Rozgar Yojana (1989), Swarnajayanti Gram Swarozgar"
,"Yojana (1999), Sampoorna Grameena Rozgar Yojana"
,"(2001), National Rural Employment Guarantee Programme"
,(2006) and so on have been launched for raising the
,standard of living of people.
,"9. The Wildlife (Protection) Act, 1972 and the Forest"
,"(Conservation) Act, 1980, have been enacted to safeguard"
,"the wildlife and the forests respectively. Further, the Water"
,and Air Acts have provided for the establishment of the
,"Central and State Pollution Control Boards, which are"
,engaged in the protection and improvement of environment.
,"The National Forest Policy (1988) aims at the protection,"
,conservation and development of forests.
,10. Agriculture has been modernised by providing improved
,"agricultural inputs, seeds, fertilisers and irrigation facilities."
,     Various steps have also been taken to organise animal
,husbandry on modern and scientific lines.
,"11. Three-tier panchayati raj system (at village, taluka and zila"
,levels) has been introduced to translate into reality
,Gandhiji’s dream of every village being a republic. The 73rd
,Amendment Act (1992) has been enacted to provide
,constitutional status and protection to these panchayati raj
,institutions.
,"12. Seats are reserved for SCs, STs and other weaker sections"
,"in educational institutions, government services and"
,"representative bodies. The Untouchability (Offences) Act,"
,"1955, which was renamed as the Protection of Civil Rights"
,Act in 1976 and the Scheduled Castes and Scheduled
,"Tribes (Prevention of Atrocities) Act, 1989, have been"
,enacted to protect the SCs and STs from social injustice and
,exploitation. The 65th Constitutional Amendment Act of 1990
,established the National Commission for Scheduled Castes
,and Scheduled Tribes to protect the interests of SCs and
,"STs. Later, the 89th Constitutional Amendment Act of 2003"
,bifurcated this combined commission into two separate
,"bodies, namely, National Commission for Schedule Castes"
,and National Commission for Schedule Tribes.
,12a. Various national-level commissions have been established
,"to promote and protect the social, educational and economic"
,interests of the weaker sections of the society. These include
,"the National Commission for Backward Classes (1993), the"
,"National Commission for Minorities (1993), the National"
,Commission for Women (1992) and the National
,"Commission for Protection of Child Rights (2007). Further,"
,the 102nd Amendment Act of 2018 conferred a constitutional
,status on the National Commission for Backward Classes
,and also enlarged its functions.
,"12b. In 2019, the central government issued orders providing"
,10% reservation to the Economically Weaker Sections
,(EWSs) in admission to educational institutions and civil
,posts and services in the Government of India. The benefit
,of this reservation can be availed by the persons belonging
,to EWSs who are not covered under any of the existing
,"      schemes of reservations for SCs, STs and OBCs. This"
,reservation was facilitated by the 103rd Amendment Act of
,2019
,13. The Criminal Procedure Code (1973) separated the judiciary
,from the executive in the public services of the state. Prior to
,"this separation, the district authorities like the collector, the"
,"sub-divisional officer, the tehsildar and so on used to"
,exercise judicial powers along with the traditional executive
,"powers. After the separation, the judicial powers were taken"
,away from these executive authorities and vested in the
,hands of district judicial magistrates who work under the
,direct control of the state high court.
,14. The Ancient and Historical Monument and Archaeological
,Sites and Remains Act (1951) has been enacted to protect
,"the monuments, places and objects of national importance."
,15. Primary health centres and hospitals have been established
,"throughout the country to improve the public health. Also,"
,special programmes have been launched to eradicate
,"widespread diseases like malaria, TB, leprosy, AIDS, cancer,"
,"filaria, kala-azar, guineaworm, yaws, Japanese encephalitis"
,and so on.
,"16. Laws to prohibit the slaughter of cows, calves, and bullocks"
,have been enacted in some states.
,17. Some states have initiated the old age pension schemes for
,people above 65 years.
,18. India has been following the policy of non-alignment and
,panchsheel to promote international peace and security.
,In spite of the above steps by the Central and state
,"governments, the Directive Principles have not been implemented"
,fully and effectively due to several reasons like inadequate
,"financial resources, unfavourable socio-economic conditions,"
,"population explosion, strained Centre-state relations and so on."
, DIRECTIVES OUTSIDE PART IV
,"Apart from the Directives included in Part IV, there are some other"
,Directives contained in other Parts of the Constitution. They are:
,1. Claims of SCs and STs to Services: The claims of the
,members of the Scheduled Castes and the Scheduled
,"Tribes shall be taken into consideration, consistently with the"
,"maintenance of efficiency of administration, in the making of"
,appointments to services and posts in connection with the
,affairs of the Union or a State (Article 335 in Part XVI).
,2. Instruction in mother tongue: It shall be the endeavour of
,every state and every local authority within the state to
,provide adequate facilities for instruction in the mother-
,tongue at the primary stage of education to children
,belonging to linguistic minority groups (Article 350-A in Part
,XVII).
,3. Development of the Hindi Language: It shall be the duty of
,the Union to promote the spread of the Hindi language and
,to develop it so that it may serve as a medium of expression
,for all the elements of the composite culture of India (Article
,351 in Part XVII).
,The above Directives are also non-jus-ticiable in nature.
,"However, they are also given equal importance and attention by"
,the judiciary on the ground that all parts of the constitution must
,be read together.
,
,Table 8.2 Articles Related to Directive Principles of State Policy at
,a Glance
,Article No.    Subject Matter
,36.        Definition of State
,37.        Application of the principles contained in this
,part
,38.        State to secure a social order for the promotion
,of welfare of the people
,39.        Certain principles of policy to be followed by the
,          State
,39A.    Equal justice and free legal aid
,40.    Organisation of village panchayats
,"41.    Right to work, to education and to public"
,assistance in certain cases
,42.    Provision for just and humane conditions of
,work and maternity relief
,"43.    Living wage, etc., for workers"
,43A.    Participation of workers in management of
,industries
,43B.    Promotion of co-operative societies
,44.    Uniform civil code for the citizens
,45.    Provision for early childhood care and
,education to children below the age of six years
,46.    Promotion of educational and economic
,"interests of Scheduled Castes, Scheduled"
,Tribes and other weaker sections
,47.    Duty of the State to raise the level of nutrition
,and the standard of living and to improve public
,health
,48.    Organisation of agriculture and animal
,husbandry
,48A.    Protection and improvement of environment
,and safeguarding of forests and wildlife
,49.    Protection of monuments and places and
,objects of national importance
,50.    Separation of judiciary from executive
,51.    Promotion of international peace and security
,
,
,NOTES AND REFERENCES
," 1. Actually, Directive Principles are mentioned in Articles"
,38 to 51. Article 36 deals with the definition of State
,while Article 37 deals with the nature and significance of
,Directive Principles.
,"2. Granville Austin, The Indian Constitution–Cornerstone"
,"of a Nation, Oxford, 1966, P. 75."
,3. A ‘Police State’ is mainly concerned with the
,maintenance of law and order and defence of the
,country against external aggression. Such a restrictive
,concept of state is based on the nineteenth century
,theory of individualism or laissez-faire.
,4. This second provision was added by the 44th
,Constitutional Amendment Act of 1978.
,5. The last point (f) was modified by the 42nd
,Constitutional Amendment Act of 1976.
,6. This Directive was added by the 42nd Constitutional
,Amendment Act of 1976.
,"7. ‘Living wage’ is different from ‘minimum wage’, which"
,"includes the bare needs of life like food, shelter and"
,"clothing. In addition to these bare needs, a ‘living wage’"
,"includes education, health , insurance, etc. A ‘fair wage’"
,is a mean between ‘living wage’ and ‘minimum wage’.
,8. This Directive was added by the 42nd Constitutional
,Amendment Act of 1976. 8a. This Directive was added
,by the 97th Constitutional Amendment Act of 2011.
,9. This Directive was changed by the 86th Constitutional
,"Amendment Act of 2002. Originally, it made a provision"
,for free and compulsory education for all children until
,they complete the age of 14 years.
,10. This Directive was added by the 42nd Constitutional
,Amendment Act of 1976.
,"11. Constituent Assembly Debates, volume VII, P. 476."
,"12. M.P. Jain, Indian Constitutional Law, Wadhwa, Third"
,"Edition (1978), P. 595."
,"13. Constituent Assembly Debates, volume VII, P. 470."
,"14. N. Srinivasan, Democratic Government in India, P. 182."
,"15. Sir Ivor Jennings, Some Characteristics of the Indian"
,"Constitution, 1953, P. 31–33."
,"16. Journal of Constitutional and Parliamentary Studies,"
,June 1975.
,"17. M.C. Chagla, An Ambassador Speaks, P. 35."
,"18. Granville Austin, The Indian Constitution–Cornerstone"
,"of a Nation, Oxford, 1966, P. 50–52."
,"19. P.B. Gajendragadker, The Constitution of India (Its"
,"Philosophy and Postulates), P. 11."
,"20. State of Madras v. Champakam Dorairajan, (1951)."
,"21. Golak Nath v. State of Punjab, (1967)."
,22. Article 39 (b) says: The State shall direct its policy
,towards securing that the ownership and control of the
,material resources of the community are so distributed
,as best to subserve the common good.
,23. Article 39 (c) says: The state shall direct its policy
,towards securing that the operation of the economic
,system does not result in the concentration of wealth
,and means of production to the common detriment.
,"24. Kesavananda Bharati v. State of Kerala, (1973)."
,"25. Minerva Mills v. Union of India, (1980)."
, 9      Fundamental Duties
,
,
,
,
,T
,hough the rights and duties of the citizens are correlative
,"and inseparable, the original constitution contained only the"
,fundamental rights and not the fundamental duties. In other
,"words, the framers of the Constitution did not feel it necessary to"
,incorporate the fundamental duties of the citizens in the
,"Constitution. However, they incorporated the duties of the State in"
,the Constitution in the form of Directive Principles of State Polity.
,"Later in 1976, the fundamental duties of citizens were added in"
,"the Constitution. In 2002, one more Fundamental Duty was"
,added.
,The Fundamental Duties in the Indian Constitution are inspired
,"by the Constitution of erstwhile USSR. Notably, none of the"
,"Constitutions of major democratic countries like USA, Canada,"
,"France, Germany, Australia and so on specifically contain a list of"
,"duties of citizens. Japanese Constitution is, perhaps, the only"
,democratic Constitution in world which contains a list of duties of
,"citizens. The socialist countries, on the contrary, gave equal"
,importance to the fundamental rights and duties of their citizens.
,"Hence, the Constitution of erstwhile USSR declared that the"
,citizen’s exercise of their rights and freedoms was inseparable
,from the performance of their duties and obligations.
, SWARAN SINGH COMMITTEE RECOMMENDATIONS
,
,"In 1976, the Congress Party set up the Sardar Swaran Singh"
,"Committee to make recommendations about fundamental duties,"
,the need and necessity of which was felt during the operation of
,the internal emergency (1975–1977). The committee
,recommended the inclusion of a separate chapter on fundamental
,duties in the Constitution. It stressed that the citizens should
,"become conscious that in addition to the enjoyment of rights, they"
,also have certain duties to perform as well. The Congress
,Government at Centre accepted these recommendations and
,enacted the 42nd Constitutional Amendment Act in 1976. This
,"amendment added a new part, namely, Part IVA to the"
,"Constitution. This new part consists of only one Article, that is,"
,Article 51A which for the first time specified a code of ten
,fundamental duties of the citizens. The ruling Congress party
,declared the non-inclusion of fundamental duties in the
,Constitution as a historical mistake and claimed that what the
,framers of the Constitution failed to do was being done now.
,Though the Swaran Singh Committee suggested the
,"incorporation of eight Fundamental Duties in the Constitution, the"
,42nd Constitutional Amendment Act (1976) included ten
,Fundamental Duties.
,"Interestingly, certain recommendations of the Committee were"
,"not accepted by the Congress Party and hence, not incorporated"
,in the Constitution. These include:
,1. The Parliament may provide for the imposition of such
,penalty or punishment as may be considered appropriate for
,any non-compliance with or refusal to observe any of the
,duties.
,2. No law imposing such penalty or punishment shall be called
,in question in any court on the ground of infringement of any
,of Fundamental Rights or on the ground of repugnancy to
,any other provision of the Constitution.
,3. Duty to pay taxes should also be a Fundamental Duty of the
,citizens.
, LIST OF FUNDAMENTAL DUTIES
,"According to Article 51A, it shall be the duty of every citizen of"
,India:
,(a) to abide by the Constitution and respect its ideals and
,"institutions, the National Flag and the National Anthem;"
,(b) to cherish and follow the noble ideals that inspired the
,national struggle for freedom;
,"(c) to uphold and protect the sovereignty, unity and integrity of"
,India;
,(d) to defend the country and render national service when
,called upon to do so;
,(e) to promote harmony and the spirit of common brotherhood
,"amongst all the people of India transcending religious,"
,linguistic and regional or sectional diversities and to
,renounce practices derogatory to the dignity of women;
,(f) to value and preserve the rich heritage of the country’s
,composite culture;
,(g) to protect and improve the natural environment including
,"forests, lakes, rivers and wildlife and to have compassion for"
,living creatures;
,"(h) to develop scientific temper, humanism and the spirit of"
,inquiry and reform;
,(i) to safeguard public property and to abjure violence;
,(j) to strive towards excellence in all spheres of individual and
,collective activity so that the nation constantly rises to higher
,levels of endeavour and achievement; and
,(k) to provide opportunities for education to his child or ward
,between the age of six and fourteen years. This duty was
,"added by the 86th Constitutional Amendment Act, 2002."
, FEATURES OF THE FUNDAMENTAL DUTIES
,
,Following points can be noted with regard to the characteristics of
,the Fundamental Duties:
,1. Some of them are moral duties while others are civic duties.
,"For instance, cherishing noble ideals of freedom struggle is"
,"a moral precept and respecting the Constitution, National"
,Flag and National Anthem is a civic duty.
,2. They refer to such values which have been a part of the
,"Indian tradition, mythology, religions and practices. In other"
,"words, they essentially contain just a codification of tasks"
,integral to the Indian way of life.
,3. Unlike some of the Fundamental Rights which extend to all
,"persons whether citizens or foreigners1 , the Fundamental"
,Duties are confined to citizens only and do not extend to
,foreigners.
,"4. Like the Directive Principles, the fundamental duties are also"
,non-justiciable. The Constitution does not provide for their
,"direct enforcement by the courts. Moreover, there is not legal"
,"sanction against their violation. However, the Parliament is"
,free to enforce them by suitable legislation.
, CRITICISM OF FUNDAMENTAL DUTIES
,
,The Fundamental Duties mentioned in Part IVA of the Constitution
,have been criticised on the following grounds:
,1. The list of duties is not exhaustive as it does not cover other
,"important duties like casting vote, paying taxes, family"
,"planning and so on. In fact, duty to pay taxes was"
,recommended by the Swaran Singh Committee.
,"2. Some of the duties are vague, ambiguous and difficult to be"
,"understood by the common man. For example, different"
,interpretations can be given to the phrases like ‘noble
,"ideals’, ‘composite culture’, ‘scientific temper’ and so on2 ."
,3. They have been described by the critics as a code of moral
,"precepts due to their non-justiciable character. Interestingly,"
,the Swaran Singh Committee had suggested for penalty or
,punishment for the non-performance of Fundamental Duties.
,4. Their inclusion in the Constitution was described by the
,critics as superfluous. This is because the duties included in
,the Constitution as fundamental would be performed by the
,people even though they were not incorporated in the
,Constitution3 .
,5. The critics said that the inclusion of fundamental duties as
,an appendage to Part IV of the Constitution has reduced
,their value and significance. They should have been added
,after Part III so as to keep them on par with Fundamental
,Rights.
, SIGNIFICANCE OF FUNDAMENTAL DUTIES
,
,"In spite of criticisms and opposition, the fundamental duties are"
,considered significant from the following viewpoints:
,1. They serve as a reminder to the citizens that while enjoying
,"their rights, they should also be conscious of duties they owe"
,"to their country, their society and to their fellow citizens."
,2. They serve as a warning against the antinational and
,"antisocial activities like burning the national flag, destroying"
,public property and so on.
,3. They serve as a source of inspiration for the citizens and
,promote a sense of discipline and commitment among them.
,They create a feeling that the citizens are not mere
,spectators but active participants in the realisation of
,national goals.
,4. They help the courts in examining and determining the
,"constitutional validity of a law. In 1992, the Supreme Court"
,"ruled that in determining the constitutionality of any law, if a"
,court finds that the law in question seeks to give effect to a
,"fundamental duty, it may consider such law to be"
,‘reasonable’ in relation to Article 14 (equality before law) or
,Article 19 (six freedoms) and thus save such law from
,unconstitutionality.
,"5. They are enforceable by law. Hence, the Parliament can"
,provide for the imposition of appropriate penalty or
,punishment for failure to fulfil any of them.
,"H.R. Gokhale, the then Law Minister, gave the following reason"
,for incorporating the fundamental duties in the Constitution after
,"twenty-six years of its inauguration: ‘In post-independent India,"
,"particularly on the eve of emergency in June 1975, a section of"
,the people showed no anxiety to fulfil their fundamental
,obligations of respecting the established legal order ..... the
,provisions of chapter on fundamental duties would have a
,sobering effect on these restless spirits who have had a host of
,anti-national subversive and unconstitutional agitations in the
,past’.
,"   Indira Gandhi, the then Prime Minister, justified the inclusion of"
,fundamental duties in the Constitution and argued that their
,"inclusion would help to strengthen democracy. She said, ‘the"
,moral value of fundamental duties would be not to smoother rights
,but to establish a democratic balance by making the people
,conscious of their duties equally as they are conscious of their
,rights’.
,The Opposition in the Parliament strongly opposed the
,inclusion of fundamental duties in the Constitution by the
,"Congress government. However, the new Janata Government"
,headed by Morarji Desai in the post-emergency period did not
,"annul the Fundamental Duties. Notably, the new government"
,sought to undo many changes introduced in the Constitution by
,the 42nd Amendment Act (1976) through the 43rd Amendment
,Act (1977) and the 44th Amendment Act (1978). This shows that
,there was an eventual consensus on the necessity and desirability
,of including the Fundamental Duties in the Constitution. This is
,more clear with the addition of one more Fundamental Duty in
,2002 by the 86th Amendment Act.
, VERMA COMMITTEE OBSERVATIONS
,
,The Verma Committee on Fundamental Duties of the Citizens
,(1999) identified the existence of legal provisions for the
,implementation of some of the Fundamental Duties. They are
,mentioned below:
,1. The Prevention of Insults to National Honour Act (1971)
,"prevents disrespect to the Constitution of India, the National"
,Flag and the National Anthem.
,2. The various criminal laws in force provide for punishments
,for encouraging enmity between different sections of people
,"on grounds of language, race, place of birth, religion and so"
,on.
,3. The Protection of Civil Rights Act4 (1955) provides for
,punishments for offences related to caste and religion.
,4. The Indian Penal Code (IPC) declares the imputations and
,assertions prejudicial to national integration as punishable
,offences.
,5. The Unlawful Activities (Prevention) Act of 1967 provides for
,the declaration of a communal organisation as an unlawful
,association.
,6. The Representation of People Act (1951) provides for the
,disqualification of members of the Parliament or a state
,"legislature for indulging in corrupt practice, that is, soliciting"
,votes on the ground of religion or promoting enmity between
,"different sections of people on grounds of caste, race,"
,"language, religion and so on."
,7. The Wildlife (Protection) Act of 1972 prohibits trade in rare
,and endangered species.
,8. The Forest (Conservation) Act of 1980 checks indiscriminate
,deforestation and diversion of forest land for nonforest
,purposes.
,
,
,NOTES AND REFERENCES
,"1. The Fundamental Rights guaranteed by Articles 14, 20,"
,"21, 21A, 22, 23, 24, 25, 26, 27 and 28 are available to"
,   all persons whether citizens or foreigners.
,"2. D.D. Chawla, the then president of the National Forum"
,"of Lawyers and Legal Aid, Delhi, observed: ‘The duties"
,"may be spelt out in a more concrete form, one is left"
,guessing the noble ideals. To some even the Bhagat
,Singh cult may be such an ideal as inspired our national
,struggle. Again what is the rich heritage of our
,"composite culture and what is scientific temper,"
,humanism and the spirit of inquiry and reform? The
,values are beyond the ken of the general run of the
,people and carry no meaning to them. Duties should be
,such and so worded as to catch the imagination of the
,common man.’
,"D.D. Chawla, ‘The Concept of Fundamental Duties’,"
,"Socialist India (New Delhi), October 23, 1976, P. 44–45."
,"3. C.K. Daphtary, former Attorney General of India, while"
,opposing the inclusion of fundamental duties in the
,"Constitution, said that more than 99.9 per cent of the"
,citizens were law-abiding and there was no need to tell
,them about their duties. He argued that as long as the
,"people are satisfied and contended, they willingly"
,"perform their duties. He said, ‘To tell them what their"
,duties are implies that they are not content. If that is the
,"case after 26 years, it is not their fault’. A.K. Sen also"
,opposed the inclusion of fundamental duties in the
,"Constitution and remarked, ‘A democratic set-up,"
,instead of thriving on the willing cooperation and
,"confidence of people, is reduced to the position of a"
,harsh school master asking the student to stand up on
,the class room bench because he has not done the
,"home work. To begin with, it were the people of India"
,who created the Sovereign Democratic Republic of
,"India in 1950, but the Republic is now claiming to be the"
,master of the citizens enjoining habitual obedience to its
,command to do his duty. The state’s confidence in the
,citizens is obviously shaken’.
,4. This Act was known as the Untouchability (Offences)
,Act till 1976.
, 10       Amendment of the Constitution
,
,
,
,
,L
,"ike any other written Constitution, the Constitution of India"
,also provides for its amendment in order to adjust itself to
,"the changing conditions and needs. However, the"
,procedure laid down for its amendment is neither as easy as in
,"Britain nor as difficult as in USA. In other words, the Indian"
,Constitution is neither flexible nor rigid but a synthesis of both.
,Article 368 in Part XX of the Constitution deals with the powers
,of Parliament to amend the Constitution and its procedure. It
,"states that the Parliament may, in exercise of its constituent"
,"power, amend by way of addition, variation or repeal any provision"
,of the Constitution in accordance with the procedure laid down for
,"the purpose. However, the Parliament cannot amend those"
,provisions which form the ‘basic structure’ of the Constitution. This
,was ruled by the Supreme Court in the Kesavananda Bharati
,case1 (1973).
, PROCEDURE FOR AMENDMENT
,
,The procedure for the amendment of the Constitution as laid down
,in Article 368 is as follows:
,1. An amendment of the Constitution can be initiated only by
,the introduction of a bill for the purpose in either House of
,Parliament and not in the state legislatures.
,2. The bill can be introduced either by a minister or by a private
,member and does not require prior permission of the
,president.
,"3. The bill must be passed in each House by a special majority,"
,"that is, a majority of the total membership of the House and"
,a majority of two-thirds of the members of the House present
,and voting.
,4. Each House must pass the bill separately. In case of a
,"disagreement between the two Houses, there is no provision"
,for holding a joint sitting of the two Houses for the purpose of
,deliberation and passage of the bill.
,5. If the bill seeks to amend the federal provisions of the
,"Constitution, it must also be ratified by the legislatures of half"
,"of the states by a simple majority, that is, a majority of the"
,members of the House present and voting.
,6. After duly passed by both the Houses of Parliament and
,"ratified by the state legislatures, where necessary, the bill is"
,presented to the president for assent.
,7. The president must give his assent to the bill. He can neither
,withhold his assent to the bill nor return the bill for
,reconsideration of the Parliament.2
,"8. After the president’s assent, the bill becomes an Act (i.e., a"
,constitutional amendment act) and the Constitution stands
,amended in accordance with the terms of the Act.
, TYPES OF AMENDMENTS
,"Article 368 provides for two types of amendments, that is, by a"
,special majority of Parliament and also through the ratification of
,"half of the states by a simple majority. But, some other articles"
,provide for the amendment of certain provisions of the
,"Constitution by a simple majority of Parliament, that is, a majority"
,of the members of each House present and voting (similar to the
,"ordinary legislative process). Notably, these amendments are not"
,deemed to be amendments of the Constitution for the purposes of
,Article 368.
,"Therefore, the Constitution can be amended in three ways:"
,"(a) Amendment by simple majority of the Parliament,"
,"(b) Amendment by special majority of the Parliament, and"
,(c) Amendment by special majority of the Parliament and the
,ratification of half of the state legislatures.
,
,By Simple Majority of Parliament
,A number of provisions in the Constitution can be amended by a
,simple majority of the two Houses of Parliament outside the scope
,of Article 368. These provisions include:
,1. Admission or establishment of new states.
,"2. Formation of new states and alteration of areas, boundaries"
,or names of existing states.
,3. Abolition or creation of legislative councils in states.
,"4. Second Schedule–emoluments, allowances, privileges and"
,"so on of the president, the governors, the Speakers, judges,"
,etc.
,5. Quorum in Parliament.
,6. Salaries and allowances of the members of Parliament.
,7. Rules of procedure in Parliament.
,"8. Privileges of the Parliament, its members and its"
,committees.
,9. Use of English language in Parliament.
,10. Number of puisne judges in the Supreme Court.
,11. Conferment of more jurisdiction on the Supreme Court.
,12. Use of official language.
, 13. Citizenship–acquisition and termination.
,14. Elections to Parliament and state legislatures.
,15. Delimitation of constituencies.
,16. Union territories.
,17. Fifth Schedule–administration of scheduled areas and
,scheduled tribes.
,18. Sixth Schedule–administration of tribal areas.
,
,By Special Majority of Parliament
,The majority of the provisions in the Constitution need to be
,"amended by a special majority of the Parliament, that is, a"
,majority of the total membership of each House and a majority of
,two-thirds of the members of each House present and voting. The
,expression ‘total membership’ means the total number of
,members comprising the House irrespective of fact whether there
,are vacancies or absentees.
,"‘Strictly speaking, the special majority is required only for voting"
,at the third reading stage of the bill but by way of abundant
,caution the requirement for special majority has been provided for
,in the rules of the Houses in respect of all the effective stages of
,the bill’3 .
,The provisions which can be amended by this way includes: (i)
,Fundamental Rights; (ii) Directive Principles of State Policy; and
,(iii) All other provisions which are not covered by the first and third
,categories.
,
,By Special Majority of Parliament and Consent of
,States
,Those provisions of the Constitution which are related to the
,federal structure of the polity can be amended by a special
,majority of the Parliament and also with the consent of half of the
,state legislatures by a simple majority. If one or some or all the
,"remaining states take no action on the bill, it does not matter; the"
,"moment half of the states give their consent, the formality is"
,completed. There is no time limit within which the states should
,give their consent to the bill.
,The following provisions can be amended in this way:
,1.   Election of the President and its manner.
,2.   Extent of the executive power of the Union and the states.
,3.   Supreme Court and high courts.
,4.   Distribution of legislative powers between the Union and the
,states.
,5.   Goods and Services Tax Council3a.
,6.   Any of the lists in the Seventh Schedule.
,7.   Representation of states in Parliament.
,8.   Power of Parliament to amend the Constitution and its
,procedure (Article 368 itself).
, CRITICISM OF THE AMENDMENT PROCEDURE
,
,Critics have criticised the amendment procedure of the
,Constitution on the following grounds:
,1. There is no provision for a special body like Constitutional
,Convention (as in USA) or Constitutional Assembly for
,amending the Constitution. The constituent power is vested
,"in the Parliament and only in few cases, in the state"
,legislatures.
,2. The power to initiate an amendment to the Constitution lies
,"with the Parliament. Hence, unlike in USA4 , the state"
,legislatures cannot initiate any bill or proposal for amending
,"the Constitution except in one case, that is, passing a"
,resolution requesting the Parliament for the creation or
,"abolition of legislative councils in the states. Here also, the"
,Parliament can either approve or disapprove such a
,resolution or may not take any action on it.
,3. Major part of the Constitution can be amended by the
,Parliament alone either by a special majority or by a simple
,"majority. Only in few cases, the consent of the state"
,"legislatures is required and that too, only half of them, while"
,"in USA, it is three-fourths of the states."
,4. The Constitution does not prescribe the time frame within
,which the state legislatures should ratify or reject an
,"amendment submitted to them. Also, it is silent on the issue"
,whether the states can withdraw their approval after
,according the same.
,5. There is no provision for holding a joint sitting of both the
,Houses of Parliament if there is a deadlock over the
,passage of a constitutional amendment bill. On the other
,"hand, a provision for a joint sitting is made in the case of an"
,ordinary bill.
,6. The process of amendment is similar to that of a legislative
,"process. Except for the special majority, the constitutional"
,amendment bills are to be passed by the Parliament in the
,same way as ordinary bills.
,   7. The provisions relating to the amendment procedure are too
,"sketchy. Hence, they leave a wide scope for taking the"
,matters to the judiciary.
,"Despite these defects, it cannot be denied that the process has"
,proved to be simple and easy and has succeeded in meeting the
,changed needs and conditions. The procedure is not so flexible as
,to allow the ruling parties to change it according to their whims.
,Nor is it so rigid as to be incapable of adopting itself to the
,"changing needs. It, as rightly said by K.C. Wheare, ‘strikes a good"
,"balance between flexibility and rigidity’5. In this context, Pandit"
,"Jawaharlal Nehru said in the Constituent Assembly, ‘While we"
,want this Constitution to be as solid and permanent as we can
,"make it, there is no permanence in a Constitution. There should"
,be a certain flexibility. If you make any Constitution rigid and
,"permanent, you stop the nation’s growth, the growth of a living,"
,"vital, organic people’6 ."
,"Similarly, Dr. B.R. Ambedkar observed in the Constituent"
,"Assembly that, ‘The Assembly has not only refrained from putting"
,a seal of finality and infallibility upon this Constitution by denying
,the people the right to amend the Constitution as in Canada or by
,making the amendment of the Constitution subject to the fulfilment
,"of extraordinary terms and conditions as in America or Australia,"
,but has provided for a facile procedure for amending the
,Constitution’7 .
,K.C. Wheare has admired the variety of amendment
,"procedures contained in the Constitution of India. He said, ‘this"
,variety in the amending process is wise but rarely found’.
,"According to Granville Austin, ‘the amending process has proved"
,itself one of the most ably conceived aspects of the Constitution.
,"Although it appears complicated, it is merely diverse’.8"
,
,
,NOTES AND REFERENCES
,"1. Kesavananda Bharati v. State of Kerala, (1973)."
,2. The 24th Constitutional Amendment Act of 1971 made it
,obligatory for the President to give his assent to a
,constitutional Amendment Bill.
," 3. Subhas C. Kashyap, Our Parliament, National Book"
,"Trust, 1999, P. 168."
,3a. This provision was added by the 101st Amendment Act
,of 2016. This is related to Article 279-A.
,"4. In USA, an amendment can also be proposed by a"
,constitutional convention called by the Congress
,(American Legislature) on the petition of two-thirds of
,the state legislatures.
,"5. K.C. Wheare, Modern Constitutions, 1966, P. 43."
,"6. Constituent Assembly Debates, Vol. VII, P. 322–23."
,"7. Constituent Assembly Debates, Vol. IX, P. 976."
,"8. Granville Austin, The Indian Constitution: Cornerstone"
,"of a Nation, Oxford, 1966, P. 25."
, 11       Basic Structure of the Constitution
,
,
,EMERGENCE OF THE BASIC STRUCTURE
,The question whether Fundamental Rights can be amended by
,the Parliament under Article 368 came for consideration of the
,Supreme Court within a year of the Constitution coming into force.
,"In the Shankari Prasad case1 (1951), the constitutional validity of"
,"the First Amendment Act (1951), which curtailed the right to"
,"property, was challenged. The Supreme Court ruled that the"
,power of the Parliament to amend the Constitution under Article
,368 also includes the power to amend Fundamental Rights. The
,word ‘law’ in Article 13 includes only ordinary laws and not the
,"constitutional amendment acts (constituent laws). Therefore, the"
,Parliament can abridge or take away any of the Fundamental
,Rights by enacting a constitutional amendment act and such a law
,will not be void under Article 13.
,"But in the Golak Nath case2 (1967), the Supreme Court"
,"reversed its earlier stand. In that case, the constitutional validity of"
,"the Seventeenth Amendment Act (1964), which inserted certain"
,"state acts in the Ninth Schedule, was challenged. The Supreme"
,Court ruled that the Fundamental Rights are given a
,"‘transcendental and immutable’ position and hence, the"
,Parliament cannot abridge or take away any of these rights. A
,constitutional amendment act is also a law within the meaning of
,"Article 13 and hence, would be void for violating any of the"
,Fundamental Rights.
,The Parliament reacted to the Supreme Court’s judgement in
,the Golak Nath case (1967) by enacting the 24th Amendment Act
,(1971). This Act amended Articles 13 and 368.
,It declared that the Parliament has the power to abridge or take
,away any of the Fundamental Rights under Article 368 and such
,an act will not be a law under the meaning of Article 13.
,"   However, in the Kesavananda Bharati case3 (1973), the"
,Supreme Court overruled its judgement in the Golak Nath case
,(1967). It upheld the validity of the 24th Amendment Act (1971)
,and stated that Parliament is empowered to abridge or take away
,"any of the Fundamental Rights. At the same time, it laid down a"
,new doctrine of the ‘basic structure’ (or ‘basic features’) of the
,Constitution. It ruled that the constituent power of Parliament
,under Article 368 does not enable it to alter the ‘basic structure’ of
,the Constitution. This means that the Parliament cannot abridge
,or take away a Fundamental Right that forms a part of the ‘basic
,structure’ of the Constitution.
,The doctrine of basic structure of the constitution was
,reaffirmed and applied by the Supreme Court in the Indira Nehru
,"Gandhi case3a (1975). In this case, the Supreme Court invalidated"
,a provision of the 39th Amendment Act (1975) which kept the
,election disputes involving the Prime Minister and the Speaker of
,Lok Sabha outside the jurisdiction of all courts. The court said that
,this provision was beyond the amending power of Parliament as it
,affected the basic structure of the constitution.
,"Again, the Parliament reacted to this judicially innovated"
,doctrine of ‘basic structure’ by enacting the 42nd Amendment Act
,(1976). This Act amended Article 368 and declared that there is
,no limitation on the constituent power of Parliament and no
,amendment can be questioned in any court on any ground
,including that of the contravention of any of the Fundamental
,Rights.
,"However, the Supreme Court in the Minerva Mills case4 (1980)"
,invalidated this provision as it excluded judicial review which is a
,‘basic feature’ of the Constitution. Applying the doctrine of ‘basic
,"structure’ with respect to Article 368, the court held that:"
,“Since the Constitution had conferred a limited amending power
,"on the Parliament, the Parliament cannot under the exercise of"
,that limited power enlarge that very power into an absolute power.
,"Indeed, a limited amending power is one of the basic features of"
,"the Constitution and, therefore, the limitations on that power"
,"cannot be destroyed. In other words, Parliament cannot, under"
,"article 368, expand its amending power so as to acquire for itself"
,the right to repeal or abrogate the Constitution or to destroy its
,basic features. The donee of a limited power cannot by the
,exercise of that power convert the limited power into an unlimited
,one”.
,"Again in the Waman Rao case5 (1981), the Supreme Court"
,adhered to the doctrine of the ‘basic structure’ and further clarified
,that it would apply to constitutional amendments enacted after
,"April 24, 1973 (i.e., the date of the judgement in the Kesavananda"
,Bharati case).
, ELEMENTS OF THE BASIC STRUCTURE
,
,The present position is that the Parliament under Article 368 can
,amend any part of the Constitution including the Fundamental
,Rights but without affecting the ‘basic structure’ of the
,"Constitution. However, the Supreme Court is yet to define or"
,clarify as to what constitutes the ‘basic structure’ of the
,"Constitution. From the various judgements, the following have"
,emerged as ‘basic features’ of the Constitution or elements of the
,‘basic structure’ of the constitution:
,1. Supremacy of the Constitution
,"2. Sovereign, democratic and republican nature of the Indian"
,polity
,3. Secular character of the Constitution
,"4. Separation of powers between the legislature, the executive"
,and the judiciary
,5. Federal character of the Constitution
,6. Unity and integrity of the nation
,7. Welfare state (socio-economic justice)
,8. Judicial review
,9. Freedom and dignity of the individual
,10. Parliamentary system
,11. Rule of law
,12. Harmony and balance between Fundamental Rights and
,Directive Principles
,13. Principle of equality
,14. Free and fair elections
,15. Independence of Judiciary
,16. Limited power of Parliament to amend the Constitution
,17. Effective access to justice
,18. Principles (or essence) underlying fundamental rights
,"19. Powers of the Supreme Court under Articles 32, 136, 141"
,and 1426
,20. Powers of the High Courts under Articles 226 and 2277
,
,Table 11.1 Evolution of the Basic Structure of the Constitution
,Sl.   Name of the Case (Year)      Elements of the Basic
,No.                                Structure (As Declared by
,the Supreme Court)
,1.    Kesavananda Bharati case3     1. Supremacy       of   the
,(1973) (popularly known as       Constitution
,the Fundamental Rights        2. Separation of powers
,"Case)                            between the legislature,"
,the executive and the
,judiciary
,3. Republic            and
,democratic     form    of
,government
,4. Secular character of the
,constitution
,5. Federal character of the
,constitution
,6. Sovereignty and unity of
,India
,7. Freedom and dignity of
,the individual
,8. Mandate to build a
,welfare state
,9. Parliamentary System
,2.    Indira Nehru Gandhi case3a    1. India as a sovereign
,(1975) (popularly known as       democratic republic
,the Election Case)            2. Equality of status and
,opportunity     of   an
,individual
,3. Secularism          and
,freedom of conscience
,and religion
,4. Government of laws
,"and not of men (i.e.,"
,Rule of Law)
,5. Judicial review
,6. Free and fair elections
,which is implied in
,democracy
,3.    Minerva Mills case4 (1980)    1. Limited      power of
,Parliament to amend
,the constitution
,2. Judicial review
,3. Harmony and balance
,between fundamental
,rights and directive
,principles
,4.    Central Coal Fields Ltd.     Effective access to justice
,Case8 (1980)
,5.    Bhim Singhji Case9 (1981)    Welfare State (Socio-
,economic justice)
,6.    S.P. Sampath Kumar            1. Rule of law
,Case10 (1987)                 2. Judicial review
,7.    P. Sambamurthy Case11         1. Rule of law
,(1987)                        2. Judicial review
,8.    Delhi Judicial Service       Powers of the Supreme
,"Association Case12 (1991)    Court under Articles 32,"
,"136, 141 and 142"
,9.    Indra Sawhney Case13       Rule of law
,(1992) (popularly known as
,the Mandal Case)
,10.   Kumar Padma Prasad           Independence of judiciary
,Case14 (1992)
,11.   Kihoto Hollohon Case15        1. Free and fair elections
,"(1993) (popularly known as    2. Sovereign, democratic,"
,Defection case)                  republican structure
,12.   Raghunath Rao Case16          1. Principle of equality
,(1993)                        2. Unity and integrity of
,India
,13.   S.R. Bommai Case17 (1994)     1. Federalism
,2. Secularism
,3. Democracy
,                                      4. Unity and integrity of
,the nation
,5. Social justice
,6. Judicial review
,14.     L. Chandra Kumar Case18      Powers of the High Courts
,(1997)                       under Articles 226 and 227
,15.     Indra Sawhney II Case19      Principle of equality
,(2000)
,16.     All India Judge’s            Independent judicial system
,Association Case20 (2002)
,17.     Kuldip Nayar Case21 (2006)    1. Democracy
,2. Free and fair elections
,18.     M. Nagaraj Case22 (2006)     Principle of equality
,19.     I.R. Coelho Case23 (2007)     1. Rule of law
,(popularly known as IX        2. Separation of powers
,Schedule Case)                3. Principles (or essence)
,underlying fundamental
,rights
,4. Judicial review
,5. Principle of equality
,20.     Ram Jethmalani Case24        Powers of the Supreme
,(2011)                       Court under Article 32
,21.     Namit Sharma Case25          Freedom and dignity of the
,(2013)                       individual
,22.     Madras Bar Association        1. Judicial review
,Case26 (2014)                 2. Powers of the High
,Courts under Articles
,226 and 227
,
,
,NOTES AND REFERENCES
,"1. Shankari Prasad v. Union of India, (1951)"
,"2. Golak Nath v. State of Punjab, (1967)"
,"3. Kesavananda Bharati v. State of Kerala, (1973)"
,3a.    Indira Nehru Gandhi v. Raj Narain (1975)
,"4.   Minerva Mills v. Union of India, (1980)"
,"5.   Waman Rao v. Union of India, (1981)"
,"6.   For the subject-matter of these Articles, see Appendix-"
,1
,7.   Ibid.
,"8.   Central Coal Fields Ltd., v. Jaiswal Coal Co. (1980)"
,9.   Bhim Singhji v. Union of India (1981)
,10.   S.P. Sampath Kumar v. Union of India (1987)
,11.   P. Sambamurthy v. State of A.P. (1987)
,12.   Delhi Judicial Service Association v. State of Gujarat
,(1991)
,13.   Indra Sawhney v. Union of India (1992)
,14.   Kumar Padma Prasad v. Union of India (1992)
,15.   Kihoto Hollohon v. Zachilhu (1993)
,16.   Raghunath Rao v. Union of India (1993)
,17.   S.R. Bommai v. Union of India (1994)
,18.   L. Chandra Kumar v. Union of India (1997)
,19.   Indra Sawhney II v. Union of India (2000)
,20.   All India Judge’s Association v. Union of India (2002)
,21.   Kuldip Nayar v. Union of India (2006)
,22.   M. Nagaraj v. Union of India (2006)
,23.   I.R. Coelho v. State of Tamil Nadu (2007)
,24.   Ram Jethmalani v. Union of India (2011)
,25.   Namit Sharma v. Union of India (2013)
,26.   Madras Bar Association v. Union of India (2014)
,                   PART-II
,SYSTEM OF GOVERNMENT
,
,12. Parliamentary System
,13. Federal System
,14. Centre-State Relations
,15. Inter-State Relations
,16. Emergency Provisions
, 12       Parliamentary System
,
,
,
,
,T
,he Constitution of India provides for a parliamentary form of
,"government, both at the Centre and in the states. Articles"
,74 and 75 deal with the parliamentary system at the Centre
,and Articles 163 and 164 in the states.
,Modern democratic governments are classified into
,parliamentary and presidential on the basis of nature of relations
,between the executive and the legislative organs of the
,government. The parliamentary system of government is the one
,in which the executive is responsible to the legislature for its
,"policies and acts. The presidential system of government, on the"
,"other hand, is one in which the executive is not responsible to the"
,"legislature for its policies and acts, and is constitutionally"
,independent of the legislature in respect of its term of office.
,The parliamentary government is also known as cabinet
,government or responsible government or Westminster model of
,"government and is prevalent in Britain, Japan, Canada, India"
,"among others. The presidential government, on the other hand, is"
,also known as non-responsible or non-parliamentary or fixed
,"executive system of government and is prevalent in USA, Brazil,"
,"Russia, Sri Lanka among others."
,Ivor Jennings called the parliamentary system as ‘cabinet
,system’ because the cabinet is the nucleus of power in a
,parliamentary system. The parliamentary government is also
,known as ‘responsible government’ as the cabinet (the real
,executive) is accountable to the Parliament and stays in office so
,long as it enjoys the latter’s confidence. It is described as
,‘Westminster model of government’ after the location of the British
,"Parliament, where the parliamentary system originated."
,"In the past, the British constitutional and political experts"
,described the Prime Minister as ‘primus inter pares’ (first among
,"equals) in relation to the cabinet. In the recent period, the Prime"
,"Minister’s power, influence and position have increased"
,significantly vis-a-vis the cabinet. He has come to play a
,"‘dominant’ role in the British politico-administrative system. Hence,"
,"the later political analysts, like Cross-man, Mackintosh and others"
,have described the British system of government as ‘prime
,ministerial government’. The same description holds good in the
,Indian context too.
, FEATURES OF PARLIAMENTARY GOVERNMENT
,The features or principles of parliamentary government in India
,are:
,
,1. Nominal and Real Executives
,The President is the nominal executive (de jure executive or titular
,executive) while the Prime Minister is the real executive (de facto
,"executive). Thus, the President is head of the State, while the"
,Prime Minister is head of the government. Article 74 provides for a
,council of ministers headed by the Prime Minister to aid and
,advise the President in the exercise of his functions. The advice
,so tendered is binding on the President1 .
,
,2. Majority Party Rule
,The political party which secures majority seats in the Lok Sabha
,forms the government. The leader of that party is appointed as the
,Prime Minister by the President; other ministers are appointed by
,"the President on the advice of the prime minister. However, when"
,"no single party gets the majority, a coalition of parties may be"
,invited by the President to form the government.
,
,3. Collective Responsibility
,This is the bedrock principle of parliamentary government. The
,ministers are collectively responsible to the Parliament in general
,and to the Lok Sabha in particular (Article 75). They act as a
,"team, and swim and sink together. The principle of collective"
,responsibility implies that the Lok Sabha can remove the ministry
,"(i.e., council of ministers headed by the prime minister) from office"
,by passing a vote of no confidence.
,
,4. Political Homogeneity
,Usually members of the council of ministers belong to the same
,"political party, and hence they share the same political ideology. In"
,"case of coalition government, the ministers are bound by"
,consensus.
,
,5. Double Membership
,The ministers are members of both the legislature and the
,executive. This means that a person cannot be a minister without
,being a member of the Parliament. The Constitution stipulates that
,a minister who is not a member of the Parliament for a period of
,six consecutive months ceases to be a minister.
,
,6. Leadership of the Prime Minister
,The Prime Minister plays the leadership role in this system of
,"government. He is the leader of council of ministers, leader of the"
,"Parliament and leader of the party in power. In these capacities,"
,he plays a significant and highly crucial role in the functioning of
,the government.
,
,7. Dissolution of the Lower House
,The lower house of the Parliament (Lok Sabha) can be dissolved
,by the President on recommendation of the Prime Minister. In
,"other words, the prime minister can advise the President to"
,dissolve the Lok Sabha before the expiry of its term and hold fresh
,elections. This means that the executive enjoys the right to get the
,legislature dissolved in a parliamentary system.
,
,8. Secrecy
,The ministers operate on the principle of secrecy of procedure
,"and cannot divulge information about their proceedings, policies"
,and decisions. They take the oath of secrecy before entering their
,office. The oath of secrecy to the ministers is administered by the
,President.
, FEATURES OF PRESIDENTIAL GOVERNMENT
,
,"Unlike the Indian Constitution, the American Constitution provides"
,for the presidential form of government. The features of the
,American presidential system of government are as follows:
,(a) The American President is both the head of the State and
,"the head of government. As the head of State, he occupies a"
,"ceremonial position. As the head of government, he leads the"
,executive organ of government.
,(b) The President is elected by an electoral college for a fixed
,tenure of four years. He cannot be removed by the Congress
,except by impeachment for a grave unconstitutional act.
,(c) The President governs with the help of a cabinet or a smaller
,body called ‘Kitchen Cabinet’. It is only an advisory body and
,consists of non-elected departmental secretaries. They are
,"selected and appointed by him, are responsible only to him,"
,and can be removed by him any time.
,(d) The President and his secretaries are not responsible to the
,Congress for their acts. They neither possess membership in
,the Congress nor attend its sessions.
,(e) The      President    cannot    dissolve     the   House     of
,Representatives–the lower house of the Congress.
,(f) The doctrine of separation of powers is the basis of the
,"American presidential system. The legislative, executive and"
,judicial powers of the government are separated and vested
,in the three independent organs of the government.
, MERITS OF THE PARLIAMENTARY SYSTEM
,
,The parliamentary system of government has the following merits:
,
,1. Harmony Between Legislature and Executive
,The greatest advantage of the parliamentary system is that it
,ensures harmonious relationship and cooperation between the
,legislative and executive organs of the government. The executive
,is a part of the legislature and both are interdependent at work. As
,"a result, there is less scope for disputes and conflicts between the"
,two organs.
,
,2. Responsible Government
,"By its very nature, the parliamentary system establishes a"
,responsible government. The ministers are responsible to the
,Parliament for all their acts of omission and commission. The
,Parliament exercises control over the ministers through various
,"devices like question hour, discussions, adjournment motion, no"
,"confidence motion, etc."
,
,3. Prevents Despotism
,"Under this system, the executive authority is vested in a group of"
,individuals (council of ministers) and not in a single person. This
,dispersal of authority checks the dictatorial tendencies of the
,"executive. Moreover, the executive is responsible to the"
,Parliament and can be removed by a no-confidence motion.
,
,4. Ready Alternative Government
,"In case the ruling party loses its majority, the Head of the State"
,can invite the opposition party to form the government. This
,means an alternative government can be formed without fresh
,"elections. Hence, Dr. Jennings says, ‘the leader of the opposition"
,is the alternative prime minister’.
,
,5. Wide Representation
,"In a parliamentary system, the executive consists of a group of"
,"individuals (i.e., ministers who are representatives of the people)."
,"Hence, it is possible to provide representation to all sections and"
,regions in the government. The prime minister while selecting his
,ministers can take this factor into consideration.
, DEMERITS OF THE PARLIAMENTARY SYSTEM
,
,"In spite of the above merits, the parliamentary system suffers from"
,the following demerits:
,
,1. Unstable Government
,The parliamentary system does not provide a stable government.
,There is no guarantee that a government can survive its tenure.
,The ministers depend on the mercy of the majority legislators for
,their continuity and survival in office. A no-confidence motion or
,political defection or evils of multiparty coalition can make the
,"government unstable. The Government headed by Morarji Desai,"
,"Charan Singh, V.P. Singh, Chandra Sekhar, Deva Gowda and I.K."
,Gujral are some such examples.
,
,2. No Continuity of Policies
,The parliamentary system is not conductive for the formulation
,and implementation of longterm policies. This is due to the
,uncertainty of the tenure of the government. A change in the ruling
,party is usually followed by changes in the policies of the
,"government. For example, the Janata Government headed by"
,Morarji Desai in 1977 reversed a large number of policies of the
,previous Congress Government. The same was repeated by the
,Congress government after it came back to power in 1980.
,
,3. Dictatorship of the Cabinet
,"When the ruling party enjoys absolute majority in the Parliament,"
,the cabinet becomes autocratic and exercises nearly unlimited
,powers. H.J. Laski says that the parliamentary system gives the
,"executive an opportunity for tyranny. Ramsay Muir, the former"
,"British Prime Minister, also complained of the ‘dictatorship of the"
,cabinet’2. This phenomena was witnessed during the era of Indira
,Gandhi and Rajiv Gandhi.
,
,4. Against Separation of Powers
,"In the parliamentary system, the legislature and the executive are"
,together and inseparable. The cabinet acts as the leader of
,"legislature as well as the executive. As Bagehot points out, ‘the"
,cabinet is a hyphen that joins the buckle that binds the executive
,"and legislative departments together.’ Hence, the whole system of"
,government goes against the letter and spirit of the theory of
,"separation of powers3. In fact, there is a fusion of powers."
,
,5. Government by Amateurs
,The parliamentary system is not conducive to administrative
,efficiency as the ministers are not experts in their fields. The
,Prime Minister has a limited choice in the selection of ministers;
,his choice is restricted to the members of Parliament alone and
,"does not extend to external talent. Moreover, the ministers devote"
,"most of their time to parliamentary work, cabinet meetings and"
,party activities.
,"Now, let us compare the parliamentary and presidential"
,"systems in terms of their features, merits and demerits."
, REASONS FOR ADOPTING PARLIAMENTARY
,SYSTEM
,
,A plea was made in favour of US presidential system of
,"government in the Constituent Assembly4. But, the founding"
,fathers preferred the British parliamentary system due to the
,following reasons:
,
,Table 12.1 Comparing Parliamentary and Presidential Systems
,Parliamentary System      Presidential System
,Features:                Features:
,1. Dual executive.       1. Single executive.
,2. Majority party rule   2. President and legislators elected
,3. Collective               separately for a fixed term.
,responsibility.       3. Non-responsibility
,4. Political homogeneity 4. Political homogeneity may not
,5. Double membership.       exist.
,6. Leadership of prime 5. Single membership
,minister.             6. Domination of president.
,7. Dissolution of Lower 7. No dissolution of Lower House.
,House.                8. Separation of powers.
,8. Fusion of powers.
,Merits:                  Demerits:
,1. Harmony     between 1. Conflict between legislature and
,legislature      and     executive.
,executive.            2. Non-responsible government.
,2. Responsible           3. May lead to autocracy.
,government.           4. Narrow representation.
,3. Prevents despotism.
,4. Wide representation.
,Demerits:                 Merits:
,1. Unstable               1. Stable government.
,government.            2. Definiteness in policies.
,2. No     continuity   of 3. Based on separation of powers.
,policies.              4. Government by experts
, 3. Against separation of
,powers
,4. Government        by
,amateurs.
,
,1. Familiarity with the System
,The Constitution-makers were somewhat familiar with the
,parliamentary system as it had been in operation in India during
,"the British rule. K.M. Munshi argued that, ‘For the last thirty or"
,"forty years, some kind of responsibility has been introduced in the"
,governance of this country. Our constitutional traditions have
,"become Parliamentary. After this experience, why should we go"
,back and buy a novel experience.’5
,
,2. Preference to More Responsibility
,Dr. B.R. Ambedkar pointed out in the Constituent Assembly that ‘a
,democratic executive must satisfy two conditions: stability and
,"responsibility. Unfortunately, it has not been possible so far to"
,devise a system which can ensure both in equal degree. The
,American system gives more stability but less responsibility. The
,"British system, on the other hand, gives more responsibility but"
,less stability. The Draft Constitution in recommending the
,parliamentary system of Executive has preferred more
,responsibility to more stability.’6
,
,3. Need to Avoid Legislative–Executive Conflicts
,The framers of the Constitution wanted to avoid the conflicts
,between the legislature and the executive which are bound to
,occur in the presidential system prevalent in USA. They thought
,that an infant democracy could not afford to take the risk of a
,"perpetual cleavage, feud or conflict or threatened conflict between"
,these two organs of the government. They wanted a form of
,government that would be conductive to the manifold
,development of the country.
,
,4. Nature of Indian Society
,India is one of the most heterogeneous States and most complex
,"plural societies in the world. Hence, the Constitution-makers"
,adopted the parliamentary system as it offers greater scope for
,"giving representation to various section, interests and regions in"
,the government. This promotes a national spirit among the people
,and builds a united India.
,Whether the parliamentary system should be continued or
,should be replaced by the presidential system has been a point of
,discussion and debate in our country since the 1970s. This matter
,was considered in detail by the Swaran Singh Committee
,appointed by the Congress government in 1975. The committee
,opined that the parliamentary system has been doing well and
,"hence, there is no need to replace it by the presidential system."
, DISTINCTION BETWEEN INDIAN AND BRITISH
,MODELS
,
,The parliamentary system of government in India is largely based
,"on the British parliamentary system. However, it never became a"
,replica of the British system and differs in the following respects:
,1. India has a republican system in place of British monarchical
,"system. In other words, the Head of the State in India (that"
,"is, President) is elected, while the Head of the State in"
,"Britain (that is, King or Queen) enjoys a hereditary position."
,2. The British system is based on the doctrine of the
,"sovereignty of Parliament, while the Parliament is not"
,supreme in India and enjoys limited and restricted powers
,"due to a written Constitution, federal system, judicial review"
,and fundamental rights7 .
,"3. In Britain, the prime minister should be a member of the"
,Lower House (House of Commons) of the Parliament. In
,"India, the prime minister may be a member of any of the two"
,Houses of Parliament.8
,"4. Usually, the members of Parliament alone are appointed as"
,"ministers in Britain. In India, a person who is not a member"
,"of Parliament can also be appointed as minister, but for a"
,maximum period of six months.
,5. Britain has the system of legal responsibility of the minister
,"while India has no such system. Unlike in Britain, the"
,ministers in India are not required to countersign the official
,acts of the Head of the State.
,6. ‘Shadow cabinet’ is an unique institution of the British
,cabinet system. It is formed by the opposition party to
,balance the ruling cabinet and to prepare its members for
,future ministerial office. There is no such institution in India.
,
,
,NOTES AND REFERENCES
,1. The 42nd and 44th Amendment Acts of 1976 and 1978
,respectively have made the ministerial advice binding
,     on the president.
,2.   How Britain is Governed is a popular book written by
,him.
,"3.   This theory was propounded by Montesquieu, a French"
,"political thinker, in his book The Spirit of Laws (1748) to"
,promote individual liberty. He stated that concentration
,of powers in one person or a body of persons would
,result in despotism and negate individual liberty.
,4.   K.T. Shah favoured the adoption of the presidential
,system.
,"5.   Constituent Assembly Debates, Volume VII, p. 284–5."
,"6.   Constituent Assembly Debates, Volume VII, p. 32."
,"7.   For details in this regard, see the section on the"
,‘Sovereignty of Parliament’ in Chapter 22.
,"8.   For example, three prime ministers, Indira Gandhi"
,"(1966), Deve Gowda (1996), and Manmohan Singh"
,"(2004), were members of the Rajya Sabha."
, 13      Federal System
,
,
,
,
,P
,olitical scientists have classified governments into unitary
,and federal on the basis of the nature of relations between
,the national government and the regional governments. By
,"definition, a unitary government is one in which all the powers are"
,"vested in the national government and the regional governments, if"
,"at all exist, derive their authority from the national government. A"
,"federal government, on the other hand, is one in which powers are"
,divided between the national government and the regional
,governments by the Constitution itself and both operate in their
,"respective jurisdictions independently. Britain, France, Japan,"
,"China, Italy, Belgium, Norway, Sweden, Spain and so on have the"
,"unitary model of government while the US, Switzerland, Australia,"
,"Canada, Russia, Brazil, Argentina and so on have the federal"
,"model of government. In a federal model, the national government"
,is known as the Federal government or the Central government or
,the Union government and the regional government is known as the
,state government or the provincial government.
,The specific features of the federal and unitary governments are
,mentioned below in a comparative manner:
,The term ‘federation’ is drived from a Latin word foedus which
,"means ‘treaty’ or ‘agreement’. Thus, a federation is a new state"
,(political system) which is formed through a treaty or an agreement
,between the various units. The units of a federation are known by
,various names like states (as in US) or cantons (as in Switzerland)
,or provinces (as in Canada) or republics (as in Russia).
,
,Table 13.1 Comparing Features of Federal and Unitary
,Governments
,Federal Government             Unitary Government
, Federal Government              Unitary Government
,"1. Dual Government (that        1. Single government, that is,"
,"is, national                    the national government"
,government and                  which may create regional
,regional government)            governments
,2. Written Constitution         2. Constitution may be written
,(France) or unwritten (Britain)
,3. Division of powers           3. No division of powers. All
,between the national            powers are vested in the
,and regional                    national government
,government
,4. Supremacy of the             4. Constitution may be supreme
,Constitution                    (Japan) or may not be
,supreme (Britain)
,5. Rigid Constitution           5. Constitution may be rigid
,(France) or flexible (Britain)
,6. Independent judiciary        6. Judiciary may be independent
,or may not be independent
,7. Bicameral legislature        7. Legislature may be bicameral
,(Britain) or unicameral
,(China)
,
,"A federation can be formed in two ways, that is, by way of"
,"integration or by way of disintegration. In the first case, a number of"
,militarily weak or economically backward states (independent)
,"come together to form a big and a strong union, as for example, the"
,"US. In the second case, a big unitary state is converted into a"
,federation by granting autonomy to the provinces to promote
,"regional interest (for example, Canada). The US is the first and the"
,oldest federation in the world. It was formed in 1787 following the
,American Revolution (1775–83). It comprises 50 states (originally
,13 states) and is taken as the model of federation. The Canadian
,"Federation, comprising 10 provinces (originally 4 provinces) is also"
,quite old–formed in 1867.
,The Constitution of India provides for a federal system of
,government in the country. The framers adopted the federal system
,due to two main reasons–the large size of the country and its socio-
,cultural diversity. They realised that the federal system not only
,ensures the efficient governance of the country but also reconciles
,national unity with regional autonomy.
,"However, the term ‘federation’ has no where been used in the"
,"Constitution. Instead, Article 1 of the Constitution describes India"
,"asa ‘Union of States’. According to Dr. B.R. Ambedkar, the phrase"
,‘Union of States’ has been preferred to ‘Federation of States’ to
,indicate two things: (i) the Indian federation is not the result of an
,agreement among the states like the American federation; and (ii)
,the states have no right to secede from the federation. The
,federation is union because it is indestructible.1
,The Indian federal system is based on the ‘Canadian model’ and
,not on the ‘American model’. The ‘Canadian model’ differs
,fundamentally from the ‘American model’ in so far as it establishes
,a very strong centre. The Indian federation resembles the Candian
,"federation (i) in its formation (i.e., by way of disintegration); (ii) in its"
,preference to the term ‘Union’ (the Canadian federation is also
,"called a ‘Union’); and (iii) in its centralising tendency (i.e., vesting"
,more powers in the centre vis-a-vis the states).
, FEDERAL FEATURES OF THE CONSTITUTION
,The federal features of the Constitution of India are explained
,below:
,
,1. Dual Polity
,The Constitution establishes a dual polity consisting the Union at
,the Centre and the states at the periphery. Each is endowed with
,sovereign powers to be exercised in the field assigned to them
,respectively by the Constitution. The Union government deals with
,"the matters of national importance like defence, foreign affairs,"
,"currency, communication and so on. The state governments, on the"
,"other hand, look after the matters of regional and local importance"
,"like public order, agriculture, health, local government and so on."
,
,2. Written Constitution
,The Constitution is not only a written document but also the
,"lengthiest Constitution of the world. Originally, it contained a"
,"Preamble, 395 Articles (divided into 22 Parts) and 8 Schedules.2 At"
,"present (2019), it consists of a Preamble, about 470 Articles"
,"(divided into 25 Parts) and 12 Schedules.3 It specifies the structure,"
,"organisation, powers and functions of both the Central and state"
,governments and prescribes the limits within which they must
,"operate. Thus, it avoids the misunderstandings and disagreements"
,between the two.
,
,3. Division of Powers
,The Constitution divided the powers between the Centre and the
,"states in terms of the Union List, State List and Concurrent List in"
,the Seventh Schedule. The Union List consists of 98 subjects
,"(originally 97), the State List 59 subjects (originally 66) and the"
,Concurrent List 52 subjects (originally 47). Both the Centre and the
,"states can make laws on the subjects of the concurrent list, but in"
,"case of a conflict, the Central law prevails. The residuary subjects"
,"(ie, which are not mentioned in any of the three lists) are given to"
,the Centre.
,4. Supremacy of the Constitution
,The Constitution is the supreme (or the highest) law of the land.
,The laws enacted by the Centre and the states must conform to its
,"provisions. Otherwise, they can be declared invalid by the Supreme"
,"Court or the high courts through their power of judicial review. Thus,"
,"the organs of the government (legislative, executive and judicial) at"
,both the levels must operate within the jurisdiction prescribed by the
,Constitution.
,
,5. Rigid Constitution
,The division of powers established by the Constitution as well as
,the supremacy of the Constitution can be maintained only if the
,"method of its amendment is rigid. Hence, the Constitution is rigid to"
,the extent that those provisions which are concerned with the
,"federal structure (i.e., Centre-state relations and judicial"
,organisation) can be amended only by the joint action of the Central
,and state governments. Such provisions require for their
,amendment a special majority4 of the Parliament and also an
,approval of half of the state legislatures.
,
,6. Independent Judiciary
,The Constitution establishes an independent judiciary headed by
,"the Supreme Court for two purposes: one, to protect the supremacy"
,of the Constitution by exercising the power of judicial review; and
,"two, to settle the disputes between the Centre and the states or"
,between the states. The Constitution contains various measures
,"like security of tenure to judges, fixed service conditions and so on"
,to make the judiciary independent of the government.
,
,7. Bicameralism
,The Constitution provides for a bicameral legislature consisting of
,an Upper House (Rajya Sabha) and a Lower House (Lok Sabha).
,"The Rajya Sabha represents the states of Indian Federation, while"
,the Lok Sabha represents the people of India as a whole. The
,Rajya Sabha (even though a less powerful chamber) is required to
,maintain the federal equilibrium by protecting the interests of the
,states against the undue interference of the Centre.
, UNITARY FEATURES OF THE CONSTITUTION
,"Besides the above federal features, the Indian Constitution also"
,possesses the following unitary or non-federal features:
,
,1. Strong Centre
,The division of powers is in favour of the Centre and highly
,"inequitable from the federal angle. Firstly, the Union List contains"
,"more subjects than the State List. Secondly, the more important"
,"subjects have been included in the Union List. Thirdly, the Centre"
,"has overriding authority over the Concurrent List. Finally, the"
,"residuary powers have also been left with the Centre, while in the"
,"US, they are vested in the states. Thus, the Constitution has made"
,the Centre very strong.
,
,2. States Not Indestructible
,"Unlike in other federations, the states in India have no right to"
,territorial integrity. The Parliament can by unilateral action change
,"the area, boundaries or name of any state. Moreover, it requires"
,"only a simple majority and not a special majority. Hence, the Indian"
,Federation is “an indestructible Union of destructible states”. The
,"American Federation, on the other hand, is described as “an"
,indestructible Union of indestructible states”.
,
,3. Single Constitution
,"Usually, in a federation, the states have the right to frame their own"
,"Constitution separate from that of the Centre. In India, on the"
,"contrary, no such power is given to the states. The Constitution of"
,India embodies not only the Constitution of the Centre but also
,those of the states. Both the Centre and the states must operate
,within this single-frame. The only exception in this regard was the
,case of Jammu and Kashmir which had its own (state)
,Constitution.5
,
,4. Flexibility of the Constitution
,The process of constitutional amendment is less rigid than what is
,found in other federations. The bulk of the Constitution can be
,"amended by the unilateral action of the Parliament, either by simple"
,"majority or by special majority. Further, the power to initiate an"
,"amendment to the Constitution lies only with the Centre. In US, the"
,states can also propose an amendment to the Constitution.
,
,5. No Equality of State Representation
,The states are given representation in the Rajya Sabha on the
,"basis of population. Hence, the membership varies from 1 to 31. In"
,"US, on the other hand, the principle of equality of representation of"
,"states in the Upper House is fully recognised. Thus, the American"
,"Senate has 100 members, two from each state. This principle is"
,regarded as a safeguard for smaller states.
,
,6. Emergency Provisions
,"The Constitution stipulates three types of emergencies–national,"
,"state and financial. During an emergency, the Central government"
,becomes all powerful and the states go into the total control of the
,Centre. It converts the federal structure into a unitary one without a
,formal amendment of the Constitution. This kind of transformation is
,not found in any other federation.
,
,7. Single Citizenship
,"In spite of a dual polity, the Constitution of India, like that of"
,"Canada, adopted the system of single citizenship. There is only"
,Indian Citizenship and no separate state citizenship. All citizens
,irrespective of the state in which they are born or reside enjoy the
,"same rights all over the country. The other federal states like US,"
,"Switzerland and Australia have dual citizenship, that is, national"
,citizenship as well as state citizenship.
,
,8. Integrated Judiciary
,The Indian Constitution has established an integrated judicial
,system with the Supreme Court at the top and the state high courts
,below it. This single system of courts enforces both the Central laws
,"as well as the state laws. In US, on the other hand, there is a"
,double system of courts whereby the federal laws are enforced by
,the federal judiciary and the state laws by the state judiciary.
,
,9. All-India Services
,"In US, the Federal government and the state governments have"
,"their separate public services. In India also, the Centre and the"
,"states have their separate public services. But, in addition, there are"
,"all-India services (IAS, IPS, and IFS) which are common to both the"
,Centre and the states. The members of these services are recruited
,and trained by the Centre which also possess ultimate control over
,"them. Thus, these services violate the principle of federalism under"
,the Constitution.
,
,10. Integrated Audit Machinery
,The Comptroller and Auditor-General of India audits the accounts of
,"not only the Central government but also those of the states. But,"
,his appointment and removal is done by the president without
,"consulting the states. Hence, this office restricts the financial"
,"autonomy of the states. The American Comptroller-General, on the"
,"contrary, has no role with respect to the accounts of the states."
,
,11. Parliament’s Authority Over State List
,"Even in the limited sphere of authority allotted to them, the states"
,do not have exclusive control. The Parliament is empowered to
,legislate on any subject of the State List if Rajya Sabha passes a
,resolution to that effect in the national interest. This means that the
,legislative competence of the Parliament can be extended without
,"amending the Constitution. Notably, this can be done when there is"
,no emergency of any kind.
,
,12. Appointment of Governor
,"The governor, who is the head of the state, is appointed by the"
,President. He holds office during the pleasure of the President. He
,"also acts as an agent of the Centre. Through him, the Centre"
,"exercises control over the states. The American Constitution, on the"
,"contrary, provided for an elected head in the states. In this respect,"
,India adopted the Canadian system.
,
,13. Integrated Election Machinery
,The Election Commission conducts elections not only to the Central
,"legislature but also to the state legislatures. But, this body is"
,constituted by the President and the states have no say in this
,matter. The position is same with regard to the removal of its
,"members as well. On the other hand, US has separate machineries"
,for the conduct of elections at the federal and state levels.
,
,14. Veto Over State Bills
,The governor is empowered to reserve certain types of bills passed
,by the state legislature for the consideration of the President. The
,President can withhold his assent to such bills not only in the first
,"instance but also in the second instance. Thus, the President"
,enjoys absolute veto (and not suspensive veto) over state bills. But
,"in US and Australia, the states are autonomous within their fields"
,and there is no provision for any such reservation.
, CRITICAL EVALUATION OF THE FEDERAL SYSTEM
,"From the above, it is clear that the Constitution of India has"
,"deviated from the traditional federal systems like US, Switzerland"
,and Australia and incorporated a large number of unitary or non-
,"federal features, tilting the balance of power in favour of the Centre."
,This has prompted the Constitutional experts to challenge the
,"federal character of the Indian Constitution. Thus, KC Wheare"
,described the Constitution of India as “quasi-federal”. He remarked
,that “Indian Union is a unitary state with subsidiary federal features
,rather than a federal state with subsidiary unitary features.”6
,"According to K Santhanam, the two factors have been"
,responsible for increasing the unitary bias (tendency of
,centralisation) of the Constitution. These are: (i) the dominance of
,the Centre in the financial sphere and the dependence of the states
,upon the Central grants; and (ii) the emergence of a powerful
,erstwhile planning commission which controlled the developmental
,process in the states6a. He observed: “India has practically
,functioned as a unitary state though the Union and the states have
,tried to function formally and legally as a federation.”7
,"However, there are other political scientists who do not agree"
,"with the above descriptions. Thus, Paul Appleby8 characterises the"
,Indian system as “extremely federal”. Morris Jones9 termed it as a
,“bargaining federalism”. Ivor Jennings10 has described it as a
,“federation with a strong centralising tendency”. He observed that
,“the Indian Constitution is mainly federal with unique safeguards for
,enforcing national unity and growth”. Alexandrowicz11 stated that
,"“India is a case sui generis (i.e., unique in character). Granville"
,Austin12 called the Indian federalism as a “cooperative federalism”.
,He said that though the Constitution of India has created a strong
,"Central government, it has not made the state governments weak"
,and has not reduced them to the level of administrative agencies for
,the execution of policies of the Central government. He described
,the Indian federation as “a new kind of federation to meet India’s
,peculiar needs”.
,"On the nature of Indian Constitution, Dr. B.R. Ambedkar made"
,the following observation in the Constituent Assembly: “The
,Constitution is a Federal Constitution in as much as it establishes a
,"dual polity. The Union is not a league of states, united in a loose"
,"relationship, nor are the states the agencies of the Union, deriving"
,powers from it. Both the Union and the states are created by the
,"Constitution, both derive their respective authority from the"
,Constitution.”13 He further observed: “Yet the Constitution avoids
,the tight mould of federalism and could be both unitary as well as
,federal according to the requirements of time and circum-
,stances”.14 While replying to the criticism of over-centralisation in
,"the Constitution, he stated: “A serious complaint is made on the"
,ground that there is too much centralisation and the states have
,been reduced to municipalities. It is clear that this view is not only
,an exaggeration but is also founded on a misunderstanding of what
,exactly the Constitution contrives to do. As to the relations between
,"the Centre and the states, it is necessary to bear in mind the"
,fundamental principle on which it rests. The basic principle of
,federalism is that the legislative and executive authority is
,partitioned between the Centre and the states not by any law to be
,made by the Centre but by the Constitution itself. This is what the
,Constitution does. The states are in no way dependent upon the
,Centre for their legislative or executive authority. The states and the
,Centre are coequal in this matter. It is difficult to see how such a
,"Constitution can be called centralism. It is, therefore, wrong to say"
,that the states have been placed under the Centre. The Centre
,cannot by its own will alter the boundary of this partition. Nor can
,the judiciary”.15
,"In Bommai case16 (1994), the Supreme Court laid down that the"
,Constitution is federal and characterised federalism as its ‘basic
,feature’. It observed: “The fact that under the scheme of our
,"Constitution, greater power is conferred upon the Centre vis-a-vis"
,the states does not mean that the states are mere appendages of
,the Centre. The states have an independent constitutional
,existence. They are not satellites or agents of the Centre. Within the
,"sphere allotted to them, the states are supreme. The fact that"
,during emergency and in certain other eventualities their powers
,are overridden or invaded by the Centre is not destructive of the
,essential federal feature of the Constitution. They are exceptions
,and the exceptions are not a rule. Let it be said that the federalism
,in the Indian Constitution is not a matter of administrative
,"convenience, but one of principle–the outcome of our own process"
,and a recognition of the ground realities”.
,"In fact, the federalism in India represents a compromise between"
,the following two conflicting considerations17 :
,(i) normal division of powers under which states enjoy autonom
,within their own spheres; and
,(ii) need for national integrity and a strong Union government unde
,exceptional circumstances.
,The following trends in the working of Indian political system
,"reflects its federal spirit: (i) Territorial disputes between states, for"
,"example, between Maharashtra and Karnataka over Belgaum; (ii)"
,"Disputes between states over sharing of river water, for example,"
,between Karnataka and Tamil Nadu over Cauvery Water; (iii) The
,emergence of regional parties and their coming to power in states
,"like Andhra Pradesh, Tamil Nadu, etc.; (iv) The creation of new"
,"states to fulfil the regional aspirations, for example, Mizoram or"
,Jharkhand; (v) Demand of the states for more financial grants from
,the Centre to meet their developmental needs; (vi) Assertion of
,autonomy by the states and their resistance to the interference from
,the Centre; (vii) Supreme Court’s imposition of several procedural
,limitations on the use of Article 356 (President’s Rule in the States)
,by the Centre.18
,
,
,NOTES AND REFERENCES
,"1. Constituent Assembly Debates, Volume VII, P. 43."
,2. The American Constitution originally consisted only 7
,"Articles, the Australian 128 and the Canadian 147."
,3. The various amendments carried out since 1951 have
,deleted about 20 Articles and one Part (VII) and added
,"about 95 Articles, four Parts (IVA, IXA, IXB and XIVA) and"
,"four Schedules (9,10,11 and 12)."
,4. A majority of 2/3 of the members of each House present
,and voting and a majority of the total membership of each
,House.
,"5. Till 2019, the erstwhile state of Jammu and Kashmir"
,enjoyed a special status by virtue of Article 370 of the
,Constitution of India.
," 6. K.C. Wheare: Federal Government, 1951, P. 28."
,"6a. In 2015, the Planning Commission was replaced by a"
,new body called NITI Aayog (National Institution for
,Transforming India).
,"7. K. Santhanam: Union-State Relations in India, 1960, PP."
,50–70.
,"8. Paul Appleby: Public Administration in India, 1953, P. 51."
,"9. Morris Jones: The Government and Politics in India,"
,"1960, P. 14."
,10. Ivor Jennings: Some Characteristics of the Indian
,"Constitution, 1953, P. 1."
,"11. C.H. Alexandrowicz: Constitutional Development in India,"
,"1957, PP. 157–70."
,12. Granville Austin: The Indian Constitution–Cornerstone of
,"a Nation, Oxford, 1966, PP. 186–88."
,"13. Constituent Assembly Debates, Vol. VIII, P. 33."
,"14. Ibid, Vol.VII, PP. 33–34."
,15. Dr. B.R. Ambedkar’s speech in the Constituent Assembly
,on 25.11.1949 reproduced in The Constitution and the
,"Constituent Assembly; Lok Sabha Secretariat, 1990, P."
,176
,16. S.R. Bommai v. Union of India (1994).
,"17. Subash C. Kashyap: Our Parliament, National Book"
,"Trust, 1999 Edition, P. 40."
,18. S.R. Bommai v. Union of India (1994). For the details of
,"the judgement, see “President’s Rule” in Chapter 16."
, 14      Centre-State Relations
,
,
,
,
,T
,"he Constitution of India, being federal in structure, divides all"
,"powers (legislative, executive and financial) between the"
,"Centre and the states. However, there is no division of judicial"
,power as the Constitution has established an integrated judicial
,system to enforce both the Central laws as well as state laws.
,Though the Centre and the states are supreme in their respective
,"fields, the maximum harmony and coordination between them is"
,"essential for the effective operation of the federal system. Hence, the"
,Constitution contains elaborate provisions to regulate the various
,dimensions of the relations between the Centre and the states.
,The Centre-state relations can be studied under three heads:
,• Legislative relations.
,• Administrative relations.
,• Financial relations.
, LEGISLATIVE RELATIONS
,Articles 245 to 255 in Part XI of the Constitution deal with the
,"legislative relations between the Centre and the states. Besides these,"
,there are some other articles dealing with the same subject.
,"Like any other Federal Constitution, the Indian Constitution also"
,divides the legislative powers between the Centre and the states with
,"respect to both the territory and the subjects of legislation. Further, the"
,Constitution provides for the parliamentary legislation in the state field
,under five extraordinary situations as well as the centre’s control over
,"state legislation in certain cases. Thus, there are four aspects in the"
,"Centre-states legislative relations, viz.,"
,• Territorial extent of Central and state legislation;
,• Distribution of legislative subjects;
,• Parliamentary legislation in the state field; and
,• Centre’s control over state legislation.
,
,1. Territorial Extent of Central and State Legislation
,The Constitution defines the territorial limits of the legislative powers
,vested in the Centre and the states in the following way:
,(i) The Parliament can make laws for the whole or any part of the
,"territory of India. The territory of India includes the states, the"
,"union territories, and any other area for the time being included in"
,the territory of India.
,(ii) A state legislature can make laws for the whole or any part of the
,state. The laws made by a state legislature are not applicable
,"outside the state, except when there is a sufficient nexus between"
,the state and the object.
,"(iii) The Parliament alone can make ‘extraterritorial legislation’. Thus,"
,the laws of the Parliament are also applicable to the Indian
,citizens and their property in any part of the world.
,"However, the Constitution places certain restrictions on the plenary"
,"territorial jurisdiction of the Parliament. In other words, the laws of"
,Parliament are not applicable in the following areas:
,"(i) The President can make regulations for the peace, progress and"
,good government of the five Union Territories– the Andaman and
,"Nicobar Islands, Lakshadweep, Dadra and Nagar Haveli, Daman"
,and Diu and Ladakh. A regulation so made has the same force
,      and effect as an act of Parliament. It may also repeal or amend
,any act of Parliament in relation to these union territories.
,(ii) The governor is empowered to direct that an act of Parliament
,does not apply to a scheduled area in the state or apply with
,specified modifications and exceptions.
,(iii) The Governor of Assam may likewise direct that an act of
,Parliament does not apply to a tribal area (autonomous district) in
,the state or apply with specified modifications and exceptions.
,The President enjoys the same power with respect to tribal areas
,"(autonomous districts) in Meghalaya, Tripura and Mizoram."
,
,2. Distribution of Legislative Subjects
,The Constitution provides for a three-fold distribution of legislative
,"subjects between the Centre and the states, viz., List-I (the Union"
,"List), List-II (the State List) and List-III (the Concurrent List) in the"
,Seventh Schedule:
,(i) The Parliament has exclusive powers to make laws with respect
,to any of the matters enumerated in the Union List. This list has at
,"present 98 subjects (originally 971 subjects) like defence,"
,"banking, foreign affairs, currency, atomic energy, insurance,"
,"communication, inter-state trade and commerce, census, audit"
,and so on.
,(ii) The state legislature has “in normal circumstances” exclusive
,powers to make laws with respect to any of the matters
,enumerated in the State List. This has at present 59 subjects
,"(originally 662 subjects) like public order, police, public health and"
,"sanitation, agriculture, prisons, local government, fisheries,"
,"markets, theaters, gambling and so on."
,"(iii) Both, the Parliament and state legislature can make laws with"
,respect to any of the matters enumerated in the Concurrent List.
,This list has at present 52 subjects (originally 473 subjects) like
,"criminal law and procedure, civil procedure, marriage and divorce,"
,"population control and family planning, electricity, labour welfare,"
,"economic and social planning, drugs, newspapers, books and"
,"printing press, and others. The 42nd Amendment Act of 1976"
,"transferred five subjects to Concurrent List from State List, that is,"
,"(a) education, (b) forests, (c) weights and measures, (d)"
,"protection of wild animals and birds, and (e) administration of"
,justice; constitution and organisation of all courts except the
,Supreme Court and the high courts.
,(iv) Parliament has power to make laws with respect to any matter for
,any part of the territory of India not included in a state even
,though that matter is one which is enumerated in the State List.
,This provision has reference to the Union Territories or the
,Acquired Territories (if any).
,(v) The 101st Amendment Act of 2016 has made a special provision
,"with respect to goods and services tax. Accordingly, the"
,Parliament and the state legislature have power to make laws
,with respect to goods and services tax imposed by the Union or
,"by the State. Further, the parliament has exclusive power to make"
,laws with respect to goods and services tax where the supply of
,goods or services or both takes place in the course of inter-state
,trade or commerce.
,"(vi) The power to make laws with respect to residuary subjects (i.e.,"
,the matters which are not enumerated in any of the three lists) is
,vested in the Parliament. This residuary power of legislation
,includes the power to levy residuary taxes.
,"From the above scheme, it is clear that the matters of national"
,importance and the matters which require uniformity of legislation
,nationwide are included in the Union List. The matters of regional and
,local importance and the matters which permit diversity of interest are
,specified in the State List. The matters on which uniformity of
,legislation throughout the country is desirable but not essential are
,"enumerated in the concurrent list. Thus, it permits diversity along with"
,uniformity.
,"In US, only the powers of the Federal Government are enumerated"
,in the Constitution and the residuary powers are left to the states. The
,Australian Constitution followed the American pattern of single
,"enumeration of powers. In Canada, on the other hand, there is a"
,"double enumeration– Federal and Provincial, and the residuary"
,powers are vested in the Centre.
,The Government of India Act of 1935 provided for a three-fold
,"enumeration, viz., federal, provincial and concurrent. The present"
,"Constitution follows the scheme of this act but with one difference, that"
,"is, under this act, the residuary powers were given neither to the"
,federal legislature nor to the provincial legislature but to the governor-
,"general of India. In this respect, India follows the Canadian precedent."
,The Constitution expressly secures the predominance of the Union
,List over the State List and the Concurrent List and that of the
,"Concurrent List over the State List. Thus, in case of overlapping"
,"between the Union List and the State List, the former should prevail. In"
,"case of overlapping between the Union List and the Concurrent List, it"
,is again the former which should prevail. Where there is a conflict
,"between the Concurrent List and the State List, it is the former that"
,should prevail.
,In case of a conflict between the Central law and the state law on a
,"subject enumerated in the Concurrent List, the Central law prevails"
,"over the state law. But, there is an exception. If the state law has been"
,reserved for the consideration of the president and has received his
,"assent, then the state law prevails in that state. But, it would still be"
,competent for the Parliament to override such a law by subsequently
,making a law on the same matter.
,
,3. Parliamentary Legislation in the State Field
,The above scheme of distribution of legislative powers between the
,"Centre and the states is to be maintained in normal times. But, in"
,"abnormal times, the scheme of distribution is either modified or"
,"suspended. In other words, the Constitution empowers the Parliament"
,to make laws on any matter enumerated in the State List under the
,following five extraordinary circumstances:
,
,When Rajya Sabha Passes a Resolution
,If the Rajya Sabha declares that it is necessary in the national interest
,that Parliament should make laws with respect to goods and services
,"tax3a or a matter in the State List, then the Parliament becomes"
,competent to make laws on that matter. Such a resolution must be
,supported by two-thirds of the members present and voting. The
,resolution remains in force for one year; it can be renewed any
,number of times but not exceeding one year at a time. The laws cease
,to have effect on the expiration of six months after the resolution has
,ceased to be in force.
,This provision does not restrict the power of a state legislature to
,"make laws on the same matter. But, in case of inconsistency between"
,"a state law and a parliamentary law, the latter is to prevail."
,
,During a National Emergency
,The Parliament acquires the power to legislate with respect to goods
,"and services tax3b or matters in the State List, while a proclamation of"
,national emergency is in operation. The laws become inoperative on
,the expiration of six months after the emergency has ceased to
,operate.
,"Here also, the power of a state legislature to make laws on the"
,"same matter is not restricted. But, in case of repugnancy between a"
,"state law and a parliamentary law, the latter is to prevail."
,
,When States Make a Request
,When the legislatures of two or more states pass resolutions
,"requesting the Parliament to enact laws on a matter in the State List,"
,then the Parliament can make laws for regulating that matter. A law so
,enacted applies only to those states which have passed the
,"resolutions. However, any other state may adopt it afterwards by"
,passing a resolution to that effect in its legislature. Such a law can be
,amended or repealed only by the Parliament and not by the
,legislatures of the concerned states.
,The effect of passing a resolution under the above provision is that
,the Parliament becomes entitled to legislate with respect to a matter
,"for which it has no power to make a law. On the other hand, the state"
,legislature ceases to have the power to make a law with respect to
,that matter. The resolution operates as abdication or surrender of the
,power of the state legislature with respect to that matter and it is
,placed entirely in the hands of Parliament which alone can then
,legislate with respect to it.
,Some examples of laws passed under the above provision are
,"Prize Competition Act, 1955; Wild Life (Protection) Act, 1972; Water"
,"(Prevention and Control of Pollution) Act, 1974; Urban Land (Ceiling"
,"and Regulation) Act, 1976; and Transplantation of Human Organs Act,"
,1994
,
,To Implement International Agreements
,The Parliament can make laws on any matter in the State List for
,"implementing the international treaties, agreements or conventions."
,This provision enables the Central government to fulfil its international
,obligations and commitments.
,Some examples of laws enacted under the above provision are
,"United Nations (Privileges and Immunities) Act, 1947; Geneva"
,"Convention Act, 1960; Anti-Hijacking Act, 1982 and legislations"
,relating to environment and TRIPS.
,
,During President’s Rule
,"When the President’s rule is imposed in a state, the Parliament"
,becomes empowered to make laws with respect to any matter in the
,State List in relation to that state. A law made so by the Parliament
,continues to be operative even after the president’s rule. This means
,that the period for which such a law remains in force is not
,"coterminous with the duration of the President’s rule. But, such a law"
,can be repealed or altered or re-enacted by the state legislature.
,
,4. Centre’s Control Over State Legislation
,Besides the Parliament’s power to legislate directly on the state
,"subjects under the exceptional situations, the Constitution empowers"
,the Centre to exercise control over the state’s legislative matters in the
,following ways:
,(i) The governor can reserve certain types of bills passed by the
,state legislature for the consideration of the President. The
,president enjoys absolute veto over them.
,(ii) Bills on certain matters enumerated in the State List can be
,introduced in the state legislature only with the previous sanction
,"of the president. (For example, the bills imposing restrictions on"
,the freedom of trade and commerce).
,(iii) The Centre can direct the states to reserve money bills and other
,financial bills passed by the state legislature for the President’s
,consideration during a financial emergency.
,"From the above, it is clear that the Constitution has assigned a"
,position of superiority to the Centre in the legislative sphere. In this
,"context, the Sarkaria Commission on Centre-State Relations (1983–"
,88) observed: “The rule of federal supremacy is a technique to avoid
,"absurdity, resolve conflict and ensure harmony between the Union and"
,"state laws. If this principle of union supremacy is excluded, it is not"
,difficult to imagine its deleterious results. There will be every
,possibility of our two-tier political system being stultified by
,"interference, strife, legal chaos and confusion caused by a host of"
,"conflicting laws, much to the bewilderment of the common citizen."
,Integrated legislative policy and uniformity on basic issues of common
,Union-state concern will be stymied. The federal principle of unity in
,"diversity will be very much a casualty. This rule of federal supremacy,"
,"therefore, is indispensable for the successful functioning of the federal"
,system”.4
, ADMINISTRATIVE RELATIONS
,
,Articles 256 to 263 in Part XI of the Constitution deal with the
,administrative relations between the Centre and the states. In
,"addition, there are various other articles pertaining to the same matter."
,
,Distribution of Executive Powers
,The executive power has been divided between the Centre and the
,"states on the lines of the distribution of legislative powers, except in"
,"few cases. Thus, the executive power of the Centre extends to the"
,whole of India: (i) to the matters on which the Parliament has
,"exclusive power of legislation (i.e., the subjects enumerated in the"
,"Union List); and (ii) to the exercise of rights, authority and jurisdiction"
,"conferred on it by any treaty or agreement. Similarly, the executive"
,power of a state extends to its territory in respect of matters on which
,"the state legislature has exclusive power of legislation (i.e., the"
,subjects enumerated in the State List).
,In respect of matters on which both the Parliament and the state
,"legislatures have power of legislation (i.e., the subjects enumerated in"
,"the Concurrent List), the executive power rests with the states except"
,when a Constitutional provision or a parliamentary law specifically
,"confers it on the Centre. Therefore, a law on a concurrent subject,"
,"though enacted by the Parliament, is to be executed by the states"
,except when the Constitution or the Parliament has directed
,otherwise.5
,
,Obligation of States and the Centre
,The Constitution has placed two restrictions on the executive power of
,the states in order to give ample scope to the Centre for exercising its
,"executive power in an unrestricted manner. Thus, the executive power"
,of every state is to be exercised in such a way (a) as to ensure
,compliance with the laws made by the Parliament and any existing law
,which apply in the state; and (b) as not to impede or prejudice the
,exercise of executive power of the Centre in the state. While the
,"former lays down a general obligation upon the state, the latter"
,imposes a specific obligation on the state not to hamper the executive
,power of the Centre.
,Table 14.1 Articles Related to Centre-State Legislative Relations at a
,Glance
,Article No.     Subject Matter
,245.        Extent of laws made by Parliament and by the
,legislatures of states
,246.        Subject-matter of laws made by Parliament and by
,the legislatures of states
,246A.        Special provision with respect to goods and
,services tax
,247.        Power of Parliament to provide for the
,establishment of certain additional courts
,248.        Residuary powers of legislation
,249.        Power of Parliament to legislate with respect to a
,matter in the state list in the national interest
,250.        Power of Parliament to legislate with respect to
,any matter in the state list if a Proclamation of
,Emergency is in operation
,251.        Inconsistency between laws made by Parliament
,under articles 249 and 250 and laws made by the
,legislatures of states
,252.        Power of Parliament to legislate for two or more
,states by consent and adoption of such legislation
,by any other state
,253.        Legislation for giving effect to international
,agreements
,254.        Inconsistency between laws made by Parliament
,and laws made by the legislatures of states
,255.        Requirements as to recommendations and
,previous sanctions to be regarded as matters of
,procedure only
,"In both the cases, the executive power of the Centre extends to"
,giving of such directions to the state as are necessary for the purpose.
,The sanction behind these directions of the Centre is coercive in
,"nature. Thus, Article 365 says that where any state has failed to"
,"comply with (or to give effect to) any directions given by the Centre, it"
,will be lawful for the President to hold that a situation has arisen in
,which the government of the state cannot be carried on in accordance
,"with the provisions of the Constitution. It means that, in such a"
,"situation, the President’s rule can be imposed in the state under"
,Article 356.
,
,Centre’s Directions to the States
,"In addition to the above two cases, the Centre is empowered to give"
,directions to the states with regard to the exercise of their executive
,power in the following matters:
,(i) the construction and maintenance of means of communication
,(declared to be of national or military importance) by the state;
,(ii) the measures to be taken for the protection of the railways within
,the state;
,(iii) the provision of adequate facilities for instruction in the mother-
,tongue at the primary stage of education to children belonging to
,linguistic minority groups in the state; and
,(iv) the drawing up and execution of the specified schemes for the
,welfare of the Scheduled Tribes in the state.
,The coercive sanction behind the Central directions under Article
,365 (mentioned above) is also applicable in these cases.
,
,Mutual Delegation of Functions
,The distribution of legislative powers between the Centre and the
,"states is rigid. Consequently, the Centre cannot delegate its legislative"
,powers to the states and a single state cannot request the Parliament
,to make a law on a state subject. The distribution of executive power
,"in general follows the distribution of legislative powers. But, such a"
,rigid division in the executive sphere may lead to occasional conflicts
,"between the two. Hence, the Constitution provides for inter-"
,government delegation of executive functions in order to mitigate
,rigidity and avoid a situation of deadlock.
,"Accordingly, the President may, with the consent of the state"
,"government, entrust to that government any of the executive functions"
,"of the Centre. Conversely, the governor of a state may, with the"
,"consent of the Central government, entrust to that government any of"
,the executive functions of the state.6 This mutual delegation of
,administrative functions may be conditional or unconditional.
,The Constitution also makes a provision for the entrustment of the
,executive functions of the Centre to a state without the consent of that
,"state. But, in this case, the delegation is by the Parliament and not by"
,"the president. Thus, a law made by the Parliament on a subject of the"
,"Union List can confer powers and impose duties on a state, or"
,authorise the conferring of powers and imposition of duties by the
,Centre upon a state (irrespective of the consent of the state
,"concerned). Notably, the same thing cannot be done by the state"
,legislature.
,"From the above, it is clear that the mutual delegation of functions"
,between the Centre and the state can take place either under an
,agreement or by a legislation. While the Centre can use both the
,"methods, a state can use only the first method."
,
,Cooperation Between the Centre and States
,The Constitution contains the following provisions to secure
,cooperation and coordination between the Centre and the states:
,(i) The Parliament can provide for the adjudication of any dispute or
,"complaint with respect to the use, distribution and control of"
,waters of any inter-state river and river valley.
,(ii) The President can establish (under Article 263) an Inter-State
,Council to investigate and discuss subject of common interest
,between the Centre and the states. Such a council was set up in
,1990.7
,(iii) Full faith and credit is to be given throughout the territory of India
,"to public acts, records and judicial proceedings of the Centre and"
,every state.
,(iv) The Parliament can appoint an appropriate authority to carry out
,the purposes of the constitutional provisions relating to the
,"interstate freedom of trade, commerce and intercourse. But, no"
,such authority has been appointed so far.
,
,All-India Services
,"Like in any other federation, the Centre and the states also have their"
,separate public services called as the Central Services and the State
,"Services respectively. In addition, there are all-India services–IAS, IPS"
,and IFS. The members of these services occupy top positions (or key
,posts) under both the Centre and the states and serve them by turns.
,"But, they are recruited and trained by the Centre."
,These services are controlled jointly by the Centre and the states.
,The ultimate control lies with the Central government while the
,immediate control vests with the state governments.
,"In 1947, Indian Civil Service (ICS) was replaced by IAS and the"
,Indian Police (IP) was replaced by IPS and were recognised by the
,"Constitution as All-India Services. In 1966, the Indian Forest Service"
,(IFS) was created as the third All-India Service. Article 312 of the
,Constitution authorises the Parliament to create new All-India Services
,on the basis of a Rajya Sabha resolution to that effect.
,"Each of these three all-India services, irrespective of their division"
,"among different states, form a single service with common rights and"
,status and uniform scales of pay throughout the country.
,Though the all-India services violate the principle of federalism
,under the Constitution by restricting the autonomy and patronage of
,"the states, they are supported on the ground that (i) they help in"
,maintaining high standard of administration in the Centre as well as in
,the states; (ii) they help to ensure uniformity of the administrative
,"system throughout the country; and (iii) they facilitate liaison,"
,"cooperation, coordination and joint action on the issues of common"
,interest between the Centre and the states.
,While justifying the institution of all-India services in the Constituent
,"Assembly, Dr. B.R. Ambedkar observed that: “The dual polity which is"
,inherent in a federal system is followed in all federations by a dual
,"service. In all federations, there is a Federal Civil Service and a State"
,"Civil Service. The Indian federation, though a dual polity, will have a"
,"dual service, but with one exception. It is recognised that in every"
,country there are certain posts in its administrative set up which might
,be called strategic from the point of view of maintaining the standard
,of administration. There can be no doubt that the standard of
,administration depends upon the calibre of the civil servants who are
,appointed to the strategic posts. The Constitution provides that without
,"depriving the states of their rights to form their own civil services, there"
,"shall be an all-India service, recruited on an allIndia basis with"
,"common qualifications, with uniform scale of pay and members of"
,which alone could be appointed to those strategic posts throughout
,the Union”.8
,
,Public Service Commissions
,"In the field of public service commissions, the Centre-state relations"
,are as follows:
,(i) The Chairman and members of a state public service
,"commission, though appointed by the governor of the state, can"
,      be removed only by the President.
,(ii) The Parliament can establish a Joint State Public Service
,Commission (JSPSC) for two or more states on the request of the
,state legislatures concerned. The chairman and members of the
,JSPSC are appointed by the president.
,(iii) The Union Public Service Commission (UPSC) can serve the
,needs of a state on the request of the state governor and with the
,approval of the President.
,(iv) The UPSC assists the states (when requested by two or more
,states) in framing and operating schemes of joint recruitment for
,any services for which candidates possessing special
,qualifications are required.
,
,Integrated Judicial System
,"Though India has a dual polity, there is no dual system of"
,"administration of justice. The Constitution, on the other hand,"
,established an integrated judicial system with the Supreme Court at
,the top and the state high courts below it. This single system of courts
,enforces both the Central laws as well as the state laws. This is done
,to eliminate diversities in the remedial procedure.
,The judges of a state high court are appointed by the president in
,consultation with the Chief Justice of India and the governor of the
,state. They can also be transferred and removed by the president.
,The Parliament can establish a common high court for two or more
,"states. For example, Maharashtra and Goa or Punjab and Haryana"
,have a common high court.
,
,Relations During Emergencies
,"(i) During the operation of a national emergency (under Article 352),"
,the Centre becomes entitled to give executive directions to a state
,"on ‘any’ matter. Thus, the state governments are brought under"
,"the complete control of the Centre, though they are not"
,suspended.
,(ii) When the President’s Rule is imposed in a state (under Article
,"356), the President can assume to himself the functions of the"
,state government and powers vested in the Governor or any other
,executive authority in the state.
,"(iii) During the operation of a financial emergency (under Article 360),"
,the Centre can direct the states to observe canons of financial
,    propriety and can give other necessary directions including the
,reduction of salaries of persons serving in the state.
,
,Other Provisions
,The Constitution contains the following other provisions which enable
,the Centre to exercise control over the state administration:
,(i) Article 355 imposes two duties on the Centre: (a) to protect every
,state against external aggression and internal disturbance; and
,(b) to ensure that the government of every state is carried on in
,accordance with the provisions of the Constitution.
,(ii) The governor of a state is appointed by the president. He holds
,office during the pleasure of the President. In addition to the
,"Constitutional head of the state, the governor acts as an agent of"
,the Centre in the state. He submits periodical reports to the
,Centre about the administrative affairs of the state.
,"(iii) The state election commissioner, though appointed by the"
,"governor of the state, can be removed only by the President."
,
,Extra-Constitutional Devices
,"In addition to the above-mentioned constitutional devices, there are"
,extra-constitutional devices to promote cooperation and coordination
,between the Centre and the states. These include a number of
,advisory bodies and conferences held at the Central level.
,The non-constitutional advisory bodies include the NITI Ayog
,"(which succeeded the planning commission),9 the National Integration"
,"Council,10 the Central Council of Health and Family Welfare, the"
,"Central Council of Local Government, the Zonal Councils,11 the North-"
,"Eastern Council, the Central Council of Indian Medicine, the Central"
,"Council of Homoeopathy, the Transport Development Council, the"
,University Grants Commission and so on.
,The important conferences held either annually or otherwise to
,facilitate Centrestate consultation on a wide range of matters are as
,follows: (i) The governors’ conference (presided over by the
,President). (ii) The chief ministers’ conference (presided over by the
,prime minister). (iii) The chief secretaries’ conference (presided over
,by the cabinet secretary). (iv) The conference of inspector-general of
,police. (v) The chief justices’ conference (presided over by the chief
,justice of India). (vi) The conference of vice-chancellors. (vii) The
,home ministers’ conference (presided over by the Central home
,minister). (viii) The law ministers’ conference (presided over by the
,Central law minister).
, FINANCIAL RELATIONS
,
,Articles 268 to 293 in Part XII of the Constitution deal with Centre-
,"state financial relations. Besides these, there are other provisions"
,dealing with the same subject. These together can be studied under
,the following heads:
,
,Allocation of Taxing Powers
,The Constitution divides the taxing powers between the Centre and
,the states in the following way:
,• The Parliament has exclusive power to levy taxes on subjects
,enumerated in the Union List (which are 13 in number12 ).
,• The state legislature has exclusive power to levy taxes on
,subjects enumerated in the State List (which are 18 in number13
,).
,"• There are no tax entries in the Concurrent List. In other words,"
,the concurrent jurisdiction is not available with respect to tax
,"legislation. But, the 101st Amendment Act of 2016 has made an"
,exception by making a special provision with respect to goods
,and services tax. This Amendment has conferred concurrent
,power upon Parliament and State Legislatures to make laws
,governing goods and services tax14 .
,"• The residuary power of taxation (that is, the power to impose"
,taxes not enumerated in any of the three lists) is vested in the
,"Parliament. Under this provision, the Parliament has imposed gift"
,"tax, wealth tax and expenditure tax."
,
,Table 14.2 Articles Related to Centre-State Administrative Relations
,at a Glance
,Article No.    Subject Matter
,256.        Obligation of states and the Union
,257.        Control of the Union over states in certain cases
,257A.       Assistance to states by deployment of armed
,forces or other forces of the Union (Repealed)
,"258.        Power of the Union to confer powers, etc., on"
,states in certain cases
,      258A.         Power of the states to entrust functions to the
,Union
,259.         Armed Forces in states in Part B of the First
,Schedule (Repealed)
,260.         Jurisdiction of the Union in relation to territories
,outside India
,"261.         Public acts, records and judicial proceedings"
,262.         Adjudication of disputes relating to waters of inter-
,state rivers or river valleys
,263.         Provisions with respect to an inter-state Council
,
,The Constitution also draws a distinction between the power to levy
,and collect a tax and the power to appropriate the proceeds of the tax
,"so levied and collected. For example, the income-tax is levied and"
,collected by the Centre but its proceeds are distributed between the
,Centre and the states.
,"Further, the Constitution has placed the following restrictions on the"
,taxing powers of the states:
,"(i) A state legislature can impose taxes on professions, trades,"
,"callings and employments. But, the total amount of such taxes"
,"payable by any person should not exceed ₹2,500 per annum.15"
,(ii) A state legislature is prohibited from imposing a tax on the supply
,of goods or services or both in the following two cases : (a) where
,such supply takes place outside the state; and (b) where such
,"supply takes place in the course of import or export. Further, the"
,Parliament is empowered to formulate the principles for
,determining when a supply of goods or services or both takes
,"place outside the state, or in the course of import or export16 ."
,(iii) A state legislature can impose tax on the consumption or sale of
,"electricity. But, no tax can be imposed on the consumption or sale"
,of electricity which is (a) consumed by the Centre or sold to the
,"Centre; or (b) consumed in the construction, maintenance or"
,operation of any railway by the Centre or by the concerned
,railway company or sold to the Centre or the railway company for
,the same purpose.
,(iv) A state legislature can impose a tax in respect of any water or
,"electricity stored, generated, consumed, distributed or sold by any"
,authority established by Parliament for regulating or developing
,"any inter-state river or river valley. But, such a law, to be effective,"
,    should be reserved for the president’s consideration and receive
,his assent.
,
,Distribution of Tax Revenues
,The 80th Amendment Act of 2000 and the 101st Amendment Act of
,2016 have introduced major changes in the scheme of the distribution
,of tax revenues between the centre and the states.
,The 80th Amendment was enacted to give effect to the
,recommendations of the 10th Finance Commission. The Commission
,recommended that out of the total income obtained from certain
,"central taxes and duties, 29% should go to the states. This is known"
,as the ‘Alternative Scheme of Devolution’ and came into effect
,"retrospectively from April 1, 1996. This amendment has brought"
,several central taxes and duties like Corporation Tax and Customs
,Duties at par with Income Tax (taxes on income other than agricultural
,income) as far as their constitutionally mandated sharing with the
,states is concerned.17
,The 101st Amendment has paved the way for the introduction of a
,"new tax regime (i.e., goods and services tax - GST) in the country."
,"Accordingly, the Amendment conferred concurrent taxing powers upon"
,the Parliament and the State Legislatures to make laws for levying
,GST on every transaction of supply of goods or services or both. The
,GST replaced a number of indirect taxes levied by the Union and the
,State Governments and is intended to remove cascading effect of
,taxes and provide for a common national market for goods and
,services. The Amendment provided for subsuming of various central
,"indirect taxes and levies such as (i) Central Excise Duty, (ii) Additional"
,"Excise Duties, (iii) Excise Duty levied under the Medicinal and Toilet"
,"Preparations (Excise Duties) Act, 1955, (iv) Service Tax, (v) Additional"
,"Customs Duty commonly known as Countervailing Duty, (vi) Special"
,"Additional Duty of Customs, and (vii) Central Surcharges and Cesses"
,"so far as they related to the supply of goods and services. Similarly,"
,the Amendment provided for subsuming of (i) State Value Added Tax /
,"Sales Tax, (ii) Entertainment Tax (other than the tax levied by the local"
,"bodies), (iii) Central Sales Tax (levied by the Centre and collected by"
,"the States), (iv) Octroi and Entry Tax, (v) Purchase Tax, (vi) Luxury"
,"Tax, (vii) Taxes on lottery, betting and gambling, and (viii) State"
,Surcharges and Cesses in so far as they related to the supply of
,"goods and services. Further, the Amendment deleted Article 268-A as"
,"well as Entry 92-C in the Union List, both were dealing with service"
,tax. They were added earlier by the 88th Amendment Act of 2003. The
,service tax was levied by the Centre but collected and appropriated by
,both the Centre and the States.
,"After the above two amendments (i.e., 80th Amendment and 101st"
,"Amendment), the present position with respect to the distribution of"
,tax revenues between the centre and the states is as follows:
,A. Taxes Levied by the Centre but Collected and Appropriated by
,the States (Article 268): This category includes the stamp duties on
,"bills of exchange, cheques, promissory notes, policies of insurance,"
,transfer of shares and others.
,The proceeds of these duties levied within any state do not form a
,"part of the Consolidated Fund of India, but are assigned to that state."
,B. Taxes Levied and Collected by the Centre but Assigned to the
,States (Article 269): The following taxes fall under this category:
,(i) Taxes on the sale or purchase of goods (other than newspapers)
,in the course of inter-state trade or commerce.
,(ii) Taxes on the consignment of goods in the course of inter-state
,trade or commerce.
,The net proceeds of these taxes do not form a part of the
,Consolidated Fund of India. They are assigned to the concerned
,states in accordance with the principles laid down by the Parliament.
,C. Levy and Collection of Goods and Services Tax in Course of
,Inter-State Trade or Commerce (Article 269-A): The Goods and
,Services Tax (GST) on supplies in the course of inter-state trade or
,"commerce are levied and collected by the Centre. But, this tax is"
,divided between the Centre and the States in the manner provided by
,"Parliament on the recommendations of the GST Council. Further, the"
,Parliament is also authorized to formulate the principles for
,"determining the place of supply, and when a supply of goods or"
,services or both takes place in the course of inter-state trade or
,commerce.
,D. Taxes Levied and Collected by the Centre but Distributed
,between the Centre and the States (Article 270): This category
,includes all taxes and duties referred to in the Union List except the
,following:
,"(i) Duties and taxes referred to in Articles 268, 269 and 269-A"
,(mentioned above);
,(ii) Surcharge on taxes and duties referred to in Article 271
,      (mentioned below); and
,(iii) Any cess levied for specific purposes.
,The manner of distribution of the net proceeds of these taxes and
,duties is prescribed by the President on the recommendation of the
,Finance Commission.
,E. Surcharge on Certain Taxes and Duties for Purposes of the
,Centre (Article 271):    The Parliament can at any time levy the
,surcharges on taxes and duties referred to in Articles 269 and 270
,(mentioned above). The proceeds of such surcharges go to the Centre
,"exclusively. In other words, the states have no share in these"
,surcharges.
,"However, the Goods and Services Tax (GST) is exempted from this"
,"surcharge. In other words, this surcharge can not be imposed on the"
,GST.
,F. Taxes Levied and Collected and Retained by the States: These
,are the taxes belonging to the states exclusively. They are
,enumerated in the state list and are 18 in number. These are18 : (i)
,land revenue; (ii) taxes on agricultural income; (iii) duties in respect of
,succession to agricultural land; (iv) estate duty in respect of
,agricultural land; (v) taxes on lands and buildings; (vi) taxes on
,mineral rights; (vii) Duties of excise on alcoholic liquors for human
,"consumption; opium, Indian hemp and other narcotic drugs and"
,"narcotics, but not including medicinal and toilet preparations"
,containing alcohol or narcotics; (viii) taxes on the consumption or sale
,"or electricity; (ix) taxes on the sale of petroleum crude, high speed"
,"diesel, motor spirit (commonly known as petrol), natural gas, aviation"
,"turbine fuel and alcoholic liquor for human consumption, but not"
,including sale in the course of inter-state trade or commerce or sale in
,the course of international trade or commerce of such goods; (x) taxes
,on goods and passengers carried by road or inland waterways; (xi)
,taxes on vehicles; (xii) taxes on animals and boats; (xiii) tolls; (xiv)
,"taxes on professions, trades, callings and employments; (xv)"
,capitation taxes; (xvi) taxes on entertainments and amusements to the
,extent levied and collected by a Panchayat or a Municipality or a
,Regional Council or a District Council; (xvii) stamp duty on documents
,(except those specified in the Union List); and (xviii) fees on the
,matters enumerated in the State List (except court fees).
,
,Distribution of Non-tax Revenues
,A. The Centre
,The receipts from the following form the major sources of non-tax
,revenues of the Centre: (i) posts and telegraphs; (ii) railways; (iii)
,banking; (iv) broadcasting (v) coinage and currency; (vi) central public
,sector enterprises; (vii) escheat and lapse;19 and (viii) others.
,
,B. The States
,The receipts from the following form the major sources of non-tax
,revenues of the states: (i) irrigation; (ii) forests; (iii) fisheries; (iv) state
,public sector enterprises; (v) escheat and lapse;20 and (vi) others.
,
,Grants-in-Aid to the States
,"Besides sharing of taxes between the Centre and the states, the"
,Constitution provides for grants-in-aid to the states from the Central
,"resources. There are two types of grants-in-aid, viz, statutory grants"
,and discretionary grants:
,
,Statutory Grants
,Article 275 empowers the Parliament to make grants to the states
,"which are in need of financial assistance and not to every state. Also,"
,different sums may be fixed for different states. These sums are
,charged on the Consolidated Fund of India every year.
,"Apart from this general provision, the Constitution also provides for"
,specific grants for promoting the welfare of the scheduled tribes in a
,state or for raising the level of administration of the scheduled areas in
,a state including the State of Assam.
,The statutory grants under Article 275 (both general and specific)
,are given to the states on the recommendation of the Finance
,Commission.
,
,Discretionary Grants
,Article 282 empowers both the Centre and the states to make any
,"grants for any public purpose, even if it is not within their respective"
,"legislative competence. Under this provision, the Centre makes grants"
,to the states.
,"“These grants are also known as discretionary grants, the reason"
,being that the Centre is under no obligation to give these grants and
,the matter lies within its discretion. These grants have a two-fold
,purpose: to help the state financially to fulfil plan targets; and to give
,some leverage to the Centre to influence and coordinate state action
,to effectuate the national plan.”21
,
,Other Grants
,"The Constitution also provided for a third type of grants-in-aid, but for"
,"a temporary period. Thus, a provision was made for grants in lieu of"
,"export duties on jute and jute products to the States of Assam, Bihar,"
,Orissa and West Bengal. These grants were to be given for a period
,of ten years from the commencement of the Constitution. These sums
,were charged on the Consolidated Fund of India and were made to
,the states on the recommendation of the Finance Commission.
,
,Goods and Services Tax Council
,The smooth and efficient administration of the goods and services tax
,(GST) requires a co-operation and co-ordination between the Centre
,"and the States. In order to facilitate this consultation process, the"
,101st Amendment Act of 2016 provided for the establishment of a
,Goods and Services Tax Council or the GST Council.
,Article 279-A empowered the President to constitute a GST Council
,by an order22. The Council is a joint forum of the Centre and the
,States. It is required to make recommendations to the Centre and the
,States on the following matters:
,"(a) The taxes, cesses and surcharges levied by the Centre, the"
,States and the local bodies that would get merged in GST.
,(b) The goods and services that may be subjected to GST or
,exempted from GST.
,"(c) Model GST Laws, principles of levy, apportionment of GST levied"
,on supplies in the course of inter-state trade or commerce and
,the principles that govern the place of supply.
,(d) The threshold limit of turnover below which goods and services
,may be exempted from GST.
,(e) The rates including floor rates with bands of GST.
,(f) Any special rate or rates for a specified period to raise additional
,resources during any natural calamity or disaster.
,
,Finance Commission
,Article 280 provides for a Finance Commission as a quasi-judicial
,body. It is constituted by the President every fifth year or even earlier.
,It is required to make recommendations to the President on the
,following matters:
,• The distribution of the net proceeds of taxes to be shared
,"between the Centre and the states, and the allocation between"
,"the states, the respective shares of such proceeds."
,• The principles which should govern the grants-in-aid to the states
,"by the Centre (i.e., out of the Consolidated Fund of India)."
,• The measures needed to augment the Consolidated fund of a
,state to supplement the resources of the panchayats and the
,municipalities in the state on the basis of the recommendations
,made by the State Finance Commission.23
,• Any other matter referred to it by the President in the interests of
,sound finance.
,"Till 1960, the Commission also suggested the amounts paid to the"
,"States of Assam, Bihar, Orissa and West Bengal in lieu of assignment"
,of any share of the net proceeds in each year of export duty on jute
,and jute products.
,The Constitution envisages the Finance Commission as the
,balancing wheel of fiscal federalism in India.
,
,Protection of the States’ Interest
,"To protect the interest of states in the financial matters, the"
,Constitution lays down that the following bills can be introduced in the
,Parliament only on the recommendation of the President:
,• A bill which imposes or varies any tax or duty in which states are
,interested;
,• A bill which varies the meaning of the expression ‘agricultural
,income’ as defined for the purposes of the enactments relating to
,Indian income tax;
,• A bill which affects the principles on which moneys are or may be
,distributable to states; and
,• A bill which imposes any surcharge on any specified tax or duty
,for the purpose of the Centre.
,The expression “tax or duty in which states are interested” means:
,(a) a tax or duty the whole or part of the net proceeds whereof are
,assigned to any state; or (b) a tax or duty by reference to the net
,"proceeds whereof sums are for the time being payable, out of the"
,Consolidated Fund of India to any state.
,The phrase ‘net proceeds’ means the proceeds of a tax or a duty
,minus the cost of collection. The net proceeds of a tax or a duty in any
,area is to be ascertained and certified by the Comptroller and Auditor-
,General of India. His certificate is final.
,
,Borrowing by the Centre and the States
,The Constitution makes the following provisions with regard to the
,borrowing powers of the Centre and the states:
,• The Central government can borrow either within India or outside
,upon the security of the Consolidated Fund of India or can give
,"guarantees, but both within the limits fixed by the Parliament. So"
,"far, no such law has been enacted by the Parliament."
,"• Similarly, a state government can borrow within India (and not"
,abroad) upon the security of the Consolidated Fund of the State
,"or can give guarantees, but both within the limits fixed by the"
,legislature of that state.
,• The Central government can make loans to any state or give
,guarantees in respect of loans raised by any state. Any sums
,required for the purpose of making such loans are to be charged
,on the Consolidated Fund of India.
,"• A state cannot raise any loan without the consent of the Centre, if"
,there is still outstanding any part of a loan made to the state by
,the Centre or in respect of which a guarantee has been given by
,the Centre.
,
,Inter-Governmental Tax Immunities
,"Like any other federal Constitution, the Indian Constitution also"
,contain the rule of ‘immunity from mutual taxation’ and makes the
,following provisions in this regard:
,
,Exemption of Central Property from State Taxation
,The property of Centre is exempted from all taxes imposed by a state
,"or any authority within a state like municipalities, district boards,"
,"panchayats and so on. But, the Parliament is empowered to remove"
,"this ban. The word ‘property’ includes lands, buildings, chattels,"
,"shares, debts, everything that has a money value, and every kind of"
,"property–movable or immovable and tangible or intangible. Further,"
,the property may be used for sovereign (like armed forces) or
,commercial purposes.
,The corporations or the companies created by the Central
,government are not immune from state taxation or local taxation. The
,reason is that a corporation or a company is a separate legal entity.
,
,Exemption of State Property or Income from Central Taxation
,The property and income of a state is exempted from Central taxation.
,Such income may be derived from sovereign functions or commercial
,functions. But the Centre can tax the commercial operations of a state
,"if Parliament so provides. However, the Parliament can declare any"
,particular trade or business as incidental to the ordinary functions of
,the government and it would then not be taxable.
,"Notably, the property and income of local authorities situated within"
,"a state are not exempted from the Central taxation. Similarly, the"
,property or income of corporations and companies owned by a state
,can be taxed by the Centre.
,"The Supreme Court, in an advisory opinion24 (1963), held that the"
,immunity granted to a state in respect of Central taxation does not
,"extend to the duties of customs or duties of excise. In other words, the"
,Centre can impose customs duty on goods imported or exported by a
,"state, or an excise duty on goods produced or manufactured by a"
,state.
,
,Effects of Emergencies
,The Centre-state financial relations in normal times (described above)
,undergo changes during emergencies. These are as follows:
,
,National Emergency
,While the proclamation of national emergency (under Article 352) is in
,"operation, the president can modify the constitutional distribution of"
,revenues between the Centre and the states. This means that the
,president can either reduce or cancel the transfer of finances (both tax
,sharing and grants-in-aid) from the Centre to the states. Such
,modification continues till the end of the financial year in which the
,emergency ceases to operate.
,
,Financial Emergency
,While the proclamation of financial emergency (under Article 360) is in
,"operation, the Centre can give directions to the states: (i) to observe"
,the specified canons of financial propriety; (ii) to reduce the salaries
,and allowances of all class of persons serving in the state; and (iii) to
,reserve all money bills and other financial bills for the consideration of
,the President.
,Table 14.3 Articles Related to Centre-State Financial Relations at a
,Glance
,Article No.    Subject Matter
,Distribution of Revenues between the Union and the States
,268.        Duties levied by the Union but collected and
,appropriated by the states
,268A.       Service tax levied by Union and collected and
,appropriated by the Union and the states
,(Repealed)
,269.        Taxes levied and collected by the Union but
,assigned to the states
,269A.       Levy and collection of goods and services tax in
,course of inter-state trade or commerce
,270.        Taxes levied and distributed between the Union
,and the states
,271.        Surcharge on certain duties and taxes for
,purposes of the Union
,272.        Taxes which are levied and collected by the Union
,and may be distributed between the Union and the
,states (Repealed)
,273.        Grants in lieu of export duty on jute and jute
,products
,274.        Prior recommendation of President required to bills
,affecting taxation in which states are interested
,275.        Grants from the Union to certain states
,"276.        Taxes on professions, trades, callings and"
,employments
,277.        Savings
,278.        Agreement with states in Part B of the First
,Schedule with regard to certain financial matters
,(Repealed)
,"279.        Calculation of “net proceeds”, etc."
,279A.       Goods and Services Tax Council
,280.        Finance Commission
,281.      Recommendations of the Finance Commission
,Miscellaneous Financial Provisions
,282.      Expenditure defrayable by the Union or a state out
,of its revenues
,"283.      Custody, etc., of Consolidated Funds, Contingency"
,Funds and moneys credited to the public accounts
,284.      Custody of suitors’ deposits and other moneys
,received by public servants and courts
,285.      Exemption of property of the Union from state
,taxation
,286.      Restrictions as to imposition of tax on the sale or
,purchase of goods
,287.      Exemption from taxes on electricity
,288.      Exemption from taxation by states in respect of
,water or electricity in certain cases
,289.      Exemption of property and income of a state from
,Union taxation
,290.      Adjustment in respect of certain expenses and
,pensions
,290A.     Annual payment to certain Devaswom Funds
,291.      Privy purse sums of Rulers (Repealed)
,Borrowing
,292.      Borrowing by the Government of India
,293.      Borrowing by states
, TRENDS IN CENTRE-STATE RELATIONS
,
,"Till 1967, the centre-state relations by and large were smooth due to"
,one-party rule at the Centre and in most of the states. In 1967
,"elections, the Congress party was defeated in nine states and its"
,position at the Centre became weak. This changed political scenario
,heralded a new era in the Centre-state relations. The non-Congress
,Governments in the states opposed the increasing centralisation and
,intervention of the Central government. They raised the issue of state
,autonomy and demanded more powers and financial resources to the
,states. This caused tensions and conflicts in Centre-state relations.
,
,Tension Areas in Centre-State Relations
,The issues which created tensions and conflicts between the Centre
,and states are: (1) Mode of appointment and dismissal of governor;
,(2) Discriminatory and partisan role of governors; (3) Imposition of
,President’s Rule for partisan interests; (4) Deployment of Central
,forces in the states to maintain law and order; (5) Reservation of state
,bills for the consideration of the President; (6) Discrimination in
,financial allocations to the states; (7) Role of Planning Commission in
,"approving state projects; (8) Management of All-India Services (IAS,"
,"IPS, and IFS); (9) Use of electronic media for political purposes; (10)"
,Appointment of enquiry commissions against the chief ministers; (11)
,Sharing of finances (between Centre and states); and (12)
,Encroachment by the Centre on the State List.
,The issues in Centre-State relations have been under consideration
,"since the mid 1960s. In this direction, the following developments"
,have taken place:
,
,Administrative Reforms Commission
,The Central government appointed a six-member Administrative
,Reforms Commission (ARC) in 1966 under the chairmanship of
,Morarji Desai (followed by K Hanumanthayya). Its terms of references
,"included, among others, the examination of Centre-State relations. In"
,order to examine thoroughly the various issues in Centre-state
,"relations, the ARC constituted a study team under M.C. Setalvad. On"
,"the basis of the report of this study team, the ARC finalised its own"
,report and submitted it to the Central government in 1969. It made 22
,recommendations for improving the Centre-state relations. The
,important recommendations are:
,• Establishment of an Inter-State Council under Article 263 of the
,Constitution.
,• Appointment of persons having long experience in public life and
,administration and non-partisan attitude as governors.
,• Delegation of powers to the maximum extent to the states.
,• Transferring of more financial resources to the states to reduce
,their dependency upon the Centre.
,• Deployment of Central armed forces in the states either on their
,request or otherwise.
,No action was taken by the Central government on the
,recommendations of the ARC.
,
,Rajamannar Committee
,"In 1969, the Tamil Nadu Government (DMK) appointed a three-"
,member committee under the chairmanship of Dr. P.V. Rajamannar to
,examine the entire question of Centre-state relations and to suggest
,amendments to the Constitution so as to secure utmost autonomy to
,the states.25 The committee submitted its report to the Tamil Nadu
,Government in 1971.
,The Committee identified the reasons for the prevailing unitary
,trends (tendencies of centralisation) in the country. They include: (i)
,certain provisions in the Constitution which confer special powers on
,the Centre; (ii) one-party rule both at the Centre and in the states; (iii)
,inadequacy of states’ fiscal resources and consequent dependence
,on the Centre for financial assistance; and (iv) the institution of Central
,planning and the role of the Planning Commission.
,The important recommendations of the committee are as follows: (i)
,An Inter-State Council should be set up immediately; (ii) Finance
,Commission should be made a permanent body; (iii) Planning
,Commission should be disbanded and its place should be taken by a
,"statutory body; (iv) Articles 356, 357 and 365 (dealing with President’s"
,Rule) should be totally omitted; (v) The provision that the state
,ministry holds office during the pleasure of the governor should be
,omitted; (vi) Certain subjects of the Union List and the Concurrent List
,should be transferred to the State List; (vii) the residuary powers
,"should be allocated to the states; and (viii) All-India services (IAS, IPS"
,and IFS) should be abolished.
,   The Central government completely ignored the recommendations
,of the Rajamannar Committee.
,
,Anandpur Sahib Resolution
,"In 1973, the Akali Dal adopted a resolution containing both political"
,and religious demands in a meeting held at Anandpur Sahib in
,"Punjab. The resolution, generally known as Anandpur Sahib"
,"Resolution, demanded that the Centre’s jurisdiction should be"
,"restricted only to defence, foreign affairs, communications, and"
,currency and the entire residuary powers should be vested in the
,states. It stated that the Constitution should be made federal in the
,real sense and should ensure equal authority and representation to all
,the states at the Centre.
,
,West Bengal Memorandum
,"In 1977, the West Bengal Government (led by the Communists)"
,published a memorandum on Centre-state relations and sent to the
,Central government. The memorandum inter alia suggested the
,following: (i) The word ‘union’ in the Constitution should be replaced
,by the word ‘federal’; (ii) The jurisdiction of the Centre should be
,"confined to defence, foreign affairs, currency, communications and"
,economic co-ordination; (iii) All other subjects including the residuary
,should be vested in the states; (iv) Articles 356 and 357 (President’s
,Rule) and 360 (financial emergency) should be repealed; (v) State’s
,consent should be made obligatory for formation of new states or
,reorganisation of existing states; (vi) Of the total revenue raised by the
,"Centre from all sources, 75 per cent should be allocated to the states;"
,(vii) Rajya Sabha should have equal powers with that of the Lok
,Sabha; and (viii) There should be only Central and state services and
,the allIndia services should be abolished.
,The Central government did not accept the demands made in the
,memorandum.
,
,Sarkaria Commission
,"In 1983, the Central government appointed a three-member"
,Commission on Centrestate relations under the chairmanship of R.S.
,"Sarkaria, a retired judge of the Supreme Court.26 The commission"
,was asked to examine and review the working of existing
,arrangements between the Centre and states in all spheres and
,recommend appropriate changes and measures. It was initially given
,"one year to complete its work, but its term was extended four times. It"
,submitted it’s report in 1988.
,The Commission did not favour structural changes and regarded
,the existing constitutional arrangements and principles relating to the
,"institutions basically sound. But, it emphasised on the need for"
,changes in the functional or operational aspects. It observed that
,federalism is more a functional arrangement for co-operative action
,than a static institutional concept. It outrightly rejected the demand for
,curtailing the powers of the Centre and stated that a strong Centre is
,essential to safeguard the national unity and integrity which is being
,"threatened by the fissiparious tendencies in the body politic. However,"
,it did not equate strong Centre with centralisation of powers. It
,observed that over-centralisation leads to blood pressure at the centre
,and anaemia at the periphery.
,The Commission made 247 recommendations to improve Centre-
,state relations. The important recommendations are mentioned below:
,1. A permanent Inter-State Council called the Inter-Governmental
,Council should be set up under Article 263.
,"2. Article 356 (President’s Rule) should be used very sparingly, in"
,extreme cases as a last resort when all the available alternatives
,fail.
,3. The institution of All-India Services should be further
,strengthened and some more such services should be created.
,4. The residuary powers of taxation should continue to remain with
,"the Parliament, while the other residuary powers should be"
,placed in the Concurrent List.
,"5. When the president withholds his assent to the state bills, the"
,reasons should be communicated to the state government.
,6. The National Development Council (NDC) should be renamed
,and reconstituted as the National Economic and Development
,Council (NEDC).
,7. The zonal councils should be constituted afresh and reactivated
,to promote the spirit of federalism.
,"8. The Centre should have powers to deploy its armed forces, even"
,"without the consent of states. However, it is desirable that the"
,states should be consulted.
,9. The Centre should consult the states before making a law on a
,subject of the Concurrent List.
,  10. The procedure of consulting the chief minister in the
,appointment of the state governor should be prescribed in the
,Constitution itself.
,11. The net proceeds of the corporation tax may be made
,permissibly shareable with the states.
,12. The governor cannot dismiss the council of ministers so long as
,it commands a majority in the assembly.
,13. The governor’s term of five years in a state should not be
,disturbed except for some extremely compelling reasons.
,14. No commission of enquiry should be set up against a state
,minister unless a demand is made by the Parliament.
,15. The surcharge on income tax should not be levied by the Centre
,except for a specific purpose and for a strictly limited period.
,16. The present division of functions between the Finance
,Commission and the Planning Commission is reasonable and
,should continue.
,17. Steps should be taken to uniformly implement the three
,language formula in its true spirit.
,18. No autonomy for radio and television but decentralisation in their
,operations.
,19. No change in the role of Rajya Sabha and Centre’s power to
,reorganise the states.
,20. The commissioner for linguistic minorities should be activated.
,The Central government has implemented 180 (out of 247)
,recommendations of the Sarkaria Commission. The most important is
,the establishment of the Inter-State Council in 1990.
,
,Punchhi Commission
,The Second commission on Centre-State Relations was set-up by the
,Government of India in April 2007 under the Chairmanship of Madan
,"Mohan Punchhi, former Chief Justice of India.27 It was required to look"
,into the issues of Centre-State relations keeping in view the sea-
,changes that have taken place in the polity and economy of India
,since the Sarkaria Commission had last looked at the issue of Centre-
,State relations over two decades ago.
,The terms of reference of the Commission were as follows:
,(i) The Commission was required to examine and review the working
,of the existing arrangements between the Union and States as
,"per the Constitution of India, the healthy precedents being"
,"followed, various pronouncements of the Courts in regard to"
,"      powers, functions and responsibilities in all spheres including"
,"legislative relations, administrative relations, role of governors,"
,"emergency provisions, financial relations, economic and social"
,"planning, Panchayati Raj institutions, sharing of resources"
,including inter-state river water and recommend such changes or
,other measures as may be appropriate keeping in view the
,practical difficulties.
,(ii) In examining and reviewing the working of the existing
,arrangements between the Union and States and making
,"recommendations as to the changes and measures needed, the"
,Commission was required to keep in view the social and
,"economic developments that have taken place over the years,"
,particularly over the last two decades and have due regard to the
,scheme       and      framework    of    the    Constitution.   Such
,recommendations were also needed to address the growing
,challenges of ensuring good governance for promoting the
,welfare of the people whilst strengthening the unity and integrity of
,"the country, and of availing emerging opportunities for sustained"
,and rapid economic growth for alleviating poverty and illiteracy in
,the early decades of the new millennium.
,"(iii) While examining and making its recommendations on the above,"
,"the Commission was required to have particular regard, but not"
,limit its mandate to the following:-
,"(a) The role, responsibility and jurisdiction of the Centre vis-a-vis"
,States during major and prolonged outbreaks of communal
,"violence, caste violence or any other social conflict leading to"
,prolonged and escalated violence.
,"(b) The role, responsibility and jurisdiction of the Centre vis-a-vis"
,States in the planning and implementation of the mega
,"projects like the inter-linking of rivers, that would normally"
,take 15–20 years for completion and hinge vitally on the
,support of the States.
,"(c) The role, responsibility and jurisdiction of the Centre vis-a-vis"
,States in promoting effective devolution of powers and
,autonomy to Panchayati Raj Institutions and Local Bodies
,including the Autonomous Bodies under the sixth Schedule of
,the Constitution within a specified period of time.
,"(d) The role, responsibility and jurisdiction of the Centre vis-a-vis"
,States in promoting the concept and practice of independent
,planning and budgeting at the District level.
,"     (e) The role, responsibility and jurisdiction of the Centre vis-a-vis"
,States in linking Central assistance of various kinds with the
,performance of the States.
,"(f) The role, responsibility and jurisdiction of the Centre in"
,adopting approaches and policies based on positive
,discrimination in favour of backward States.
,(g) The impact of the recommendations made by the 8th to 12th
,Finance Commissions on the fiscal relations between the
,"Centre and the States, especially the greater dependence of"
,the States on devolution of funds from the Centre.
,(h) The need and relevance of separate taxes on the production
,and on the sales of goods and services subsequent to the
,introduction of Value Added Tax regime.
,(i) The need for freeing inter-State trade in order to establish a
,unified and integrated domestic market as also in the context
,of the reluctance of State Governments to adopt the relevant
,Sarkaria Commission’s recommendation in chapter XVIII of its
,report.
,(j) The need for setting up a Central Law Enforcement Agency
,empowered to take up suo moto investigation of crimes
,having inter-State and/ or international ramifications with
,serious implications on national security.
,(k) The feasibility of a supporting legislation under Article 355 for
,the purpose of suo moto deployment of Central forces in the
,States if and when the situation so demands.
,The Commission submitted its report to the government in April
,"2010. In finalising the 1,456 page report, in seven volumes, the"
,Commission took extensive help from the Sarkaria Commission
,"report, the National Commission to Review the Working of the"
,Constitution (NCRWC) report and the Second Administrative Reforms
,"Commission report. However, in a number of areas, the Commission"
,report differed from the Sarkaria Commission recommendations.
,After examining at length the issues raised in its Terms of
,"Reference and the related aspects in all their hues and shades, the"
,Commission came to the conclusion that ‘cooperative federalism’ will
,"be the key for sustaining India’s unity, integrity and social and"
,economic development in future. The principles of cooperative
,federalism thus may have to act as a practical guide for Indian polity
,and governance.
,"  In all, the Commission made over 310 recommendations, touching"
,upon several significant areas in the working of Centre-state relations.
,The important recommendations are mentioned below:
,1. To facilitate effective implementation of the laws on List III
,"subjects, it is necessary that some broad agreement is reached"
,between the Union and states before introducing legislation in
,Parliament on matters in the Concurrent List.
,2. The Union should be extremely restrained in asserting
,Parliamentary supremacy in matters assigned to the states.
,Greater flexibility to states in relation to subjects in the State List
,and “transferred items” in the Concurrent List is the key for better
,Centre-state relations.
,3. The Union should occupy only that many of subjects in
,concurrent or overlapping jurisdiction which are absolutely
,necessary to achieve uniformity of policy in demonstrable
,national interest.
,4. There should be a continuing auditing role for the Inter-state
,Council in the management of matters in concurrent or
,overlapping jurisdiction.
,5. The period of six months prescribed in Article 201 for State
,Legislature to act when the bill is returned by the President can
,be made applicable for the President also to decide on assenting
,or withholding assent to a state bill reserved for consideration of
,the President.
,6. Parliament should make a law on the subject of Entry 14 of List I
,(treaty making and implementing it through Parliamentary
,legislation) to streamline the procedures involved. The exercise
,of the power obviously cannot be absolute or unchartered in
,view of the federal structure of legislative and executive powers.
,7. Financial obligations and its implications on state finances
,arising out of treaties and agreements should be a permanent
,term of reference to the Finance Commissions constituted from
,time to time.
,"8. While selecting Governors, the Central Government should"
,adopt the following strict guidelines as recommended in the
,Sarkaria Commission report and follow its mandate in letter and
,spirit :
,(i) He should be eminent in some walk of life
,(ii) He should be a person from outside the state
,(iii) He should be a detached figure and not too intimately connec
,with the local politics of the state
,   (iv) He should be a person who has not taken too great a par
,politics generally and particularly in the recent past
,9. Governors should be given a fixed tenure of five years and their
,removal should not be at the sweet will of the Government at the
,Centre.
,"10. The procedure laid down for impeachment of President, mutatis"
,mutandis can be made applicable for impeachment of Governors
,as well.
,11. Article 163 does not give the Governor a general discretionary
,power to act against or without the advice of his Council of
,"Ministers. In fact, the area for the exercise of discretion is limited"
,"and even in this limited area, his choice of action should not be"
,"arbitrary or fanciful. It must be a choice dictated by reason,"
,activated by good faith and tempered by caution.
,"12. In respect of bills passed by the Legislative Assembly of a state,"
,the Governor should take the decision within six months whether
,to grant assent or to reserve it for consideration of the President.
,13. On the question of Governor’s role in appointment of Chief
,"Minister in the case of an hung assembly, it is necessary to lay"
,down certain clear guidelines to be followed as Constitutional
,conventions. These guidelines may be as follows:
,(i) The party or combination of parties which commands the wid
,support in the Legislative Assembly should be called upon to f
,the Government.
,"(ii) If there is a pre-poll alliance or coalition, it should be treated"
,"one political party and if such coalition obtains a majority,"
,leader of such coalition shall be called by the Governor to f
,the Government.
,"(iii) In case no party or pre-poll coalition has a clear majority,"
,Governor should select the Chief Minister in the order
,preference indicated here.
,(a) The group of parties which had pre-poll alliance
,commanding the largest number
,(b) The largest single party staking a claim to form the
,government with the support of others
,(c) A post-electoral coalition with all partners joining the
,government
,(d) A post-electoral alliance with some parties joining the
,government and the remaining including independents
,supporting the government from outside
,"14. On the question of dismissal of a Chief Minister, the Governor"
,should invariably insist on the Chief Minister proving his majority
,on the floor of the House for which he should prescribe a time
,limit.
,15. The Governor should have the right to sanction for prosecution
,"of a state minister against the advice of the Council of Ministers,"
,if the Cabinet decision appears to the Governor to be motivated
,by bias in the face of overwhelming material.
,16. The convention of Governors acting as Chancellors of
,Universities and holding other statutory positions should be done
,away with. His role should be confined to the Constitutional
,provisions only.
,17. When an external aggression or internal disturbance paralyses
,the state administration creating a situation of a potential break
,"down of the Constitutional machinery of the state, all alternative"
,courses available to the Union for discharging its paramount
,responsibility under Article 355 should be exhausted to contain
,the situation and the exercise of the power under Article 356
,should be limited strictly to rectifying a “failure of the
,Constitutional machinery in the state”.
,18. On the question of invoking Article 356 in case of failure of
,"Constitutional machinery in states, suitable amendments are"
,required to incorporate the guidelines set forth in the landmark
,judgement of the Supreme Court in S.R. Bommai V. Union of
,India (1994). This would remove possible misgivings in this
,regard on the part of states and help in smoothening Centre-
,state relations.
,19. Given the strict parameters now set for invoking the emergency
,provisions under Articles 352 and 356 to be used only as a
,"measure of “last resort”, and the duty of the Union to protect"
,"states under Article 355, it is necessary to provide a"
,Constitutional or legal framework to deal with situations which
,require Central intervention but do not warrant invoking the
,extreme steps under Articles 352 and 356. Providing the
,framework for “localised emergency” would ensure that the state
,government can continue to function and the Assembly would
,not have to be dissolved while providing a mechanism to let the
,Central Government respond to the issue specifically and locally.
,The imposition of local emergency is fully justified under the
,mandate of Article 355 read with Entry 2A of List I and Entry 1 of
,List II of the Seventh Schedule.
,20. Suitable amendments to Article 263 are required to make the
,"Inter-State Council a credible, powerful and fair mechanism for"
,management of interstate and Centre-state differences.
,21. The Zonal Councils should meet at least twice a year with an
,agenda proposed by states concerned to maximise co-ordination
,and promote harmonisation of policies and action having inter-
,state ramification. The Secretariat of a strengthened Inter-State
,Council can function as the Secretariat of the Zonal Councils as
,well.
,22. The Empowered Committee of Finance Ministers of States
,proved to be a successful experiment in inter-state coordination
,on fiscal matters. There is need to institutionalise similar models
,"in other sectors as well. A forum of Chief Ministers, Chaired by"
,one of the Chief Minister by rotation can be similarly thought
,"about particularly to co-ordinate policies of sectors like energy,"
,"food, education, environment and health."
,"23. New all-India services in sectors like health, education,"
,engineering and judiciary should be created.
,24. Factors inhibiting the composition and functioning of the Second
,Chamber as a representative forum of states should be removed
,or modified even if it requires amendment of the Constitutional
,"provisions. In fact, Rajya Sabha offers immense potential to"
,negotiate acceptable solutions to the friction points which
,"emerge between Centre and states in fiscal, legislative and"
,administrative relations.
,25. A balance of power between states inter se is desirable and this
,is possible by equality of representation in the Rajya Sabha. This
,requires amendment of the relevant provisions to give equality of
,"seats to states in the Rajya Sabha, irrespective of their"
,population size.
,26. The scope of devolution of powers to local bodies to act as
,institutions of self-government should be constitutionally defined
,through appropriate amendments.
,27. All future Central legislations involving states’ involvement
,should provide for cost sharing as in the case of the RTE Act.
,Existing Central legislations where the states are entrusted with
,the responsibility of implementation should be suitably amended
,providing for sharing of costs by the Central Government.
,28. The royalty rates on major minerals should be revised at least
,every three years without any delay. States should be properly
,      compensated for any delay in the revision of royalty beyond
,three years.
,29.    The current ceiling on profession tax should be completely done
,away with by a Constitutional amendment.
,30.    The scope for raising more revenue from the taxes mentioned in
,article 268 should be examined afresh. This issue may be either
,referred to the next Finance Commission or an expert committee
,be appointed to look into the matter.
,"31.    To bring greater accountability, all fiscal legislations should"
,provide for an annual assessment by an independent body and
,the reports of these bodies should be laid in both Houses of
,Parliament/state legislature.
,32.    Considerations specified in the Terms of Reference (ToR) of the
,Finance Commission should be even handed as between the
,Centre and the states. There should be an effective mechanism
,to involve the states in the finalisation of the ToR of the Finance
,Commissions.
,33.    The Central Government should review all the existing cesses
,and surcharges with a view to bringing down their share in the
,gross tax revenue.
,34.    Because of the close linkages between the plan and non-plan
,"expenditure, an expert committee may be appointed to look into"
,the issue of distinction between the plan and non-plan
,expenditure.
,35.    There should be much better coordination between the Finance
,Commission and the Planning Commission. The synchronisation
,of the periods covered by the Finance Commission and the Five-
,Year Plan will considerably improve such coordination.
,36.    The Finance Commission division in the Ministry of Finance
,"should be converted into a full-fledged department, serving as"
,the permanent secretariat for the Finance Commissions.
,37.    The Planning Commission has a crucial role in the current
,situation. But its role should be that of coordination rather that of
,micro managing sectoral plans of the Central ministries and the
,states.
,38.    Steps should be taken for the setting up of an Inter-State Trade
,and Commerce Commission under Article 307 read with Entry
,42 of List-I. This Commission should be vested with both
,advisory and executive roles with decision making powers. As a
,"Constitutional body, the decisions of the Commission should be"
,final and binding on all states as well as the Union of India. Any
,      party aggrieved with the decision of the Commission may prefer
,an appeal to the Supreme Court.
,The Report of the Commission was circulated to all stakeholders
,including State Governments / UT Administrations and Union
,Ministries / Departments concerned for their considered views on the
,recommendations of the Commission. The comments received from
,the Union Ministries / Departments and the State Governments / UT
,Administrations are under the consideration of the Inter-State
,Council.28
,
,
,NOTES AND REFERENCES
,"1. Even now, the last entry is numbered as 97 but the total"
,"number of entries is 98. The entries numbered as 2A, 92A"
,"and 92B have been added and entries 33, 92 and 92C have"
,been omitted. See Appendix II.
,"2. Even now, the last entry is numbered as 66 but the total"
,"number of entries is 59. The entries numbered as 11, 19,"
,"20, 29, 36, 52 and 55 have been omitted. See Appendix II."
,"3. Even now, the last entry is numbered as 47 but the total"
,"number of entries is 52. The entries numbered as 11A, 17A,"
,"17B, 20A and 33A have been added. See Appendix II."
,3a. The provision for goods and services tax was added by the
,101st Amendment Act of 2016.
,3b. Ibid.
,"4. Report of the Commission on centre-state Relations, Part I"
,"(Government of India, 1988) PP. 28–29."
,"5. For example, under the Essential Commodities Act, made"
,"by the Parliament on a concurrent subject, the executive"
,power is vested in the Centre.
,6. This provision (the power of the states to entrust functions
,to the Centre) was added by the 7th Constitutional
,"Amendment Act of 1956. Before that, only the Centre had"
,the power.
,"7. For details in this regard, see Chapter 15."
,"8. Constituent Assembly Debates, Volume VII, PP. 41–42."
,"9. For details, see Chapter 54."
,"10. For details, see Chapter 78."
,"11. For details, see Chapter 15."
,"12. Entries–82, 83, 84, 85, 86, 87, 88, 89, 90, 91, 92A, 92B and"
,96. See Appendix II.
,"13. Entries–45, 46, 47, 48, 49, 50, 51, 53, 54, 56, 57, 58, 59,"
,"60, 61, 62, 63, and 66. See Appendix II."
,"14. In this regard, the 101st Amendment Act of 2016 inserted"
,Article 246-A in the Constitution.
,"15. Originally, this limit was only ₹250 per annum. The 60th"
,"Amendment Act of 1988 raised it to ₹2,500 per annum."
,"16. These provisions are contained in Article 286, as amended"
,by the 101st Amendment Act of 2016.
,17. This amendment deleted Article 272 (Taxes which are
,levied and collected by the Centre and may be distributed
,between the Centre and the states).
,18. Entry 52 (taxes on the entry of goods into a local area for
,"consumption, use or sale therein) and entry 55 (taxes on"
,advertisements other than advertisements published in the
,newspapers and advertisements broadcast by radio or
,television) were omitted by the 101st Amendment Act of
,2016
,19. See ‘Property of the Union’ in Chapter 67.
,20. See ‘Property of the States’ in Chapter 67.
,"21. M.P. Jain: Indian Constitutional Law, Wadhwa, Fourth"
,"Edition, PP. 342–43."
,"22. Article 279-A(1) says that the President shall, within sixty"
,days from the commencement of the Constitution (One
,"Hundred and First Amendment) Act, 2016, by order,"
,constitute a Council to be called the Goods and Services
,Tax Council.
,23. This function was added by the 73rd and 74th Amendment
,Acts of 1992 which have granted constitutional status on the
,panchayats and the municipalities respectively.
,24. In Re. Sea Customs Act (1963).
,25. The other two members of the committee were Dr.
,Lakshmanswamy Mudaliar and P.C. Chandra Reddy.
,26. B. Sivaraman and S.R. Sen were two other members of the
,Commission.
,27. The other four Members of the Commission were Dhirendra
,"Singh (Former Secretary to the Government of India), Vinod"
,Kumar Duggal (Former Secretary to the Government of
,"India), Prof. N.R. Madhava Menon (Former Director,"
,"    National Judicial Academy, Bhopal and National Law School"
,"of India, Bangalore) and Dr. Amaresh Bagchi (Emeritus"
,"Professor, National Institute of Public Finance and Policy,"
,New Delhi). With the passing away of Dr. Bagchi in
,"February 2008, Vijay Shanker (Former Director, Central"
,"Bureau of Investigation, Government of India) was"
,appointed in his place as a Member of the Commission in
,October 2008.
,"28. Annual Report 2018–19, Ministry of Home Affairs,"
,"Government of India, p.52."
, 15     Inter-State Relations
,
,
,
,
,T
,he successful functioning of the Indian federal system
,depends not only on the harmonious relations and close
,cooperation between the Centre and the states but also
,"between the states inter se. Hence, the Constitution makes the"
,following provisions with regard to inter-state comity:
,1. Adjudication of inter-state water disputes.
,2. Coordination through inter-state councils.
,"3. Mutual recognition of public acts, records and judicial"
,proceedings.
,"4. Freedom of inter-state trade, commerce and intercourse."
,"In addition, the zonal councils have been established by the"
,Parliament to promote inter-state cooperation and coordination.
, INTER-STATE WATER DISPUTES
,
,Article 262 of the Constitution provides for the adjudication of inter-
,state water disputes. It makes two provisions:
,(i) Parliament may by law provide for the adjudication of any dispute
,"or complaint with respect to the use, distribution and control of"
,waters of any inter-state river and river valley.
,(ii) Parliament may also provide that neither the Supreme Court nor
,any other court is to exercise jurisdiction in respect of any such
,dispute or complaint.
,"Under this provision, the Parliament has enacted two laws [the"
,River Boards Act (1956) and the Inter-State Water Disputes Act
,(1956)]. The River Boards Act provides for the establishment of river
,boards for the regulation and development of inter-state river and
,river valleys. A river board is established by the Central government
,on the request of the state governments concerned to advise them.
,The Inter-State Water Disputes Act empowers the Central
,government to set up an ad hoc tribunal for the adjudication of a
,dispute between two or more states in relation to the waters of an
,inter-state river or river valley. The decision of the tribunal would be
,final and binding on the parties to the dispute. Neither the Supreme
,Court nor any other court is to have jurisdiction in respect of any
,water dispute which may be referred to such a tribunal under this
,Act.
,The need for an extra judicial machinery to settle inter-state water
,disputes is as follows: “The Supreme Court would indeed have
,jurisdiction to decide any dispute between states in connection with
,"water supplies, if legal rights or interests are concerned; but the"
,experience of most countries has shown that rules of law based
,upon the analogy of private proprietary interests in water do not
,afford a satisfactory basis for settling disputes between the states
,where the interests of the public at large in the proper use of water
,supplies are involved.”1
,"So far (2019), the Central government has set up nine inter-state"
,"water dispute tribunals. The name of the tribunals, the years in which"
,they were constituted and the states involved in the dispute are
,mentioned in Table 15.1.
,Table 15.1 Inter-State Water Dispute Tribunals Set-up So Far
,SI. Name                    Set-up in   States Involved
,No.
,"1.   Krishna Water            1969      Maharashtra,"
,Disputes Tribunal-I                Karnataka and
,Andhra Pradesh
,"2.   Godavari Water           1969      Maharashtra,"
,"Disputes Tribunal                  Karnataka, Andhra"
,"Pradesh, Madhya"
,Pradesh and
,Odisha
,"3.   Narmada Water            1969      Rajasthan, Gujarat,"
,Disputes Tribunal                  Madhya Pradesh
,and Maharashtra
,"4.   Ravi and Beas            1986      Punjab, Haryana"
,Water Disputes                     and Rajasthan
,Tribunal
,"5.   Cauvery Water            1990      Karnataka, Kerala,"
,Disputes Tribunal                  Tamil Nadu and
,Puducherry
,"6.   Krishna Water            2004      Maharashtra,"
,Disputes Tribunal-II               Karnataka and
,Andhra Pradesh
,7.   Vansadhara Water         2010      Odisha and Andhra
,Disputes Tribunal                  Pradesh
,"8.   Mahadayi Water           2010      Goa, Karnataka"
,Disputes Tribunal                  and Maharashtra
,9.   Mahanadi Water           2018      Odisha and
,Disputes Tribunal                  Chhattisgarh
, INTER-STATE COUNCILS
,
,Article 263 contemplates the establishment of an Inter-State Council
,to effect coordination between the states and between Centre and
,"states. Thus, the President can establish such a council if at any"
,time it appears to him that the public interest would be served by its
,establishment. He can define the nature of duties to be performed by
,such a council and its organisation and procedure.
,Even though the president is empowered to define the duties of
,"an inter-state council, Article 263 specifies the duties that can be"
,assigned to it in the following manner:
,(a) enquiring into and advising upon disputes which may arise
,between states;
,(b) investigating and discussing subjects in which the states or the
,Centre and the states have a common interest; and
,"(c) making recommendations upon any such subject, and"
,particularly for the better co-ordination of policy and action on it.
,“The council’s function to enquire and advice upon inter-state
,disputes is complementary to the Supreme Court’s jurisdiction under
,Article 131 to decide a legal controversy between the governments.
,The Council can deal with any controversy whether legal or non-
,"legal, but its function is advisory unlike that of the court which gives a"
,binding decision.”2
,"Under the above provisions of Article 263, the president has"
,established the following councils to make recommendations for the
,better coordination of policy and action in the related subjects:
,• Central Council of Health and Family Welfare.
,• Central Council of Local Government3
,"• Four Regional Councils for Sales Tax for the Northern, Eastern,"
,Western and Southern Zones.4
,
,Establishment of Inter-State Council
,The Sarkaria Commission on Centre-State Relations (1983–88)
,made a strong case for the establishment of a permanent Inter-State
,Council under Article 263 of the Constitution. It recommended that in
,order to differentiate the Inter-State Council from other bodies
,"established under the same Article 263, it must be called as the"
,Inter-Governmental Council. The Commission recommended that
,the Council should be charged with the duties laid down in clauses
,(b) and (c) of Article 263 (see above).
,In pursuance of the above recommendations of the Sarkaria
,"Commission, the Janata Dal Government headed by V. P. Singh"
,established the Inter-State Council in 1990.5 It consists of the
,following members:
,(i) Prime minister as the Chairman
,(ii) Chief ministers of all the states
,(iii) Chief ministers of union territories having legislative assemblies
,(iv) Administrators of union territories not having legislative
,assemblies
,(v) Governors of States under President’s rule
,"(vi) Six Central cabinet ministers, including the home minister, to be"
,nominated by the Prime Minister.
,Five Ministers of Cabinet rank / Minister of State (independent
,"charge) nominated by the Chairman of the Council (i.e., Prime"
,Minister) are permanent invitees to the Council.
,The council is a recommendatory body on issues relating to inter-
,"state, Centre-state and Centre-union territories relations. It aims at"
,"promoting coordination between them by examining, discussing and"
,"deliberating on such issues. Its duties, in detail, are as follows:"
,• investigating and discussing such subjects in which the states
,or the centre have a common interest;
,• making recommendations upon any such subject for the better
,coordination of policy and action on it; and
,• deliberating upon such other matters of general interest to the
,states as may be referred to it by the chairman.
,The Council may meet at least thrice in a year. Its meetings are
,held in camera and all questions are decided by consensus.
,There is also a Standing Committee of the Council. It was set up
,in 1996 for continuous consultation and processing of matters for the
,consideration of the Council. It consists of the following members:
,(i) Union Home Minister as the Chairman
,(ii) Five Union Cabinet Ministers
,(iii) Nine Chief Ministers
,The Council is assisted by a secretariat called the Inter-State
,Council Secretariat. This secretariat was set-up in 1991 and is
,"headed by a secretary to the Government of India. Since 2011, it is"
,also functioning as the secretariat of the Zonal Councils.
," PUBLIC ACTS, RECORDS AND JUDICIAL"
,PROCEEDINGS
,
,"Under the Constitution, the jurisdiction of each state is confined to its"
,"own territory. Hence, it is possible that the acts and records of one"
,state may not be recognised in another state. To remove any such
,"difficulty, the Constitution contains the “Full Faith and Credit” clause"
,which lays down the following:
,(i) Full faith and credit is to be given throughout the territory of India
,"to public acts, records and judicial proceedings of the Centre"
,and every state. The expression ‘public acts’ includes both
,legislative and executive acts of the government. The
,"expression ‘public record’ includes any official book, register or"
,record made by a public servant in the discharge of his official
,duties.
,"(ii) The manner in which and the conditions under which such acts,"
,records and proceedings are to be proved and their effect
,determined would be as provided by the laws of Parliament. This
,means that the general rule mentioned above is subject to the
,power of Parliament to lay down the mode of proof as well as
,"the effect of such acts, records and proceedings of one state in"
,another state.
,(iii) Final judgements and orders of civil courts in any part of India
,are capable of execution anywhere within India (without the
,necessity of a fresh suit upon the judgement). The rule applies
,only to civil judgements and not to criminal judgements. In other
,"words, it does not require the courts of a state to enforce the"
,penal laws of another state.
, INTER-STATE TRADE AND COMMERCE
,
,"Articles 301 to 307 in Part XIII of the Constitution deal with the trade,"
,commerce and intercourse within the territory of India.
,"Article 301 declares that trade, commerce and intercourse"
,throughout the territory of India shall be free. The object of this
,provision is to break down the border barriers between the states
,and to create one unit with a view to encourage the free flow of
,"trade, commerce and intercourse in the country. The freedom under"
,"this provision is not confined to interstate trade, commerce and"
,"intercourse but also extends to intra-state trade, commerce and"
,"intercourse. Thus, Article 301 will be violated whether restrictions are"
,imposed at the frontier of any state or at any prior or subsequent
,stage.
,The freedom guaranteed by Article 301 is a freedom from all
,"restrictions, except those which are provided for in the other"
,provisions (Articles 302 to 305) of Part XIII of the Constitution itself.
,These are explained below:
,(i) Parliament can impose restrictions on the freedom of trad
,commerce and intercourse between the states or within a sta
,"in public interest.6 But, the Parliament cannot give preference"
,one state over another or discriminate between the stat
,except in the case of scarcity of goods in any part of India.
,(ii) The legislature of a state can impose reasonable restrictions
,"the freedom of trade, commerce and intercourse with that sta"
,"or within that state in public interest. But, a bill for this purpo"
,can be introduced in the legislature only with the previo
,"sanction of the president. Further, the state legislature cann"
,give preference to one state over another or discrimina
,between the states.
,(iii) The legislature of a state can impose on goods imported fro
,other states or the union territories any tax to which simi
,goods manufactured in that state are subject. This provisi
,prohibits the imposition of discriminatory taxes by the state.
,(iv) The freedom (under Article 301) is subject to the nationalisati
,"laws (i.e., laws providing for monopolies in favour of the Cent"
,"or the states). Thus, the Parliament or the state legislature c"
,make laws for the carrying on by the respective government
,"        any trade, business, industry or service, whether to t"
,"exclusion, complete or partial, of citizens or otherwise."
,The Parliament can appoint an appropriate authority for carrying
,out the purposes of the above provisions relating to the freedom of
,"trade, commerce and intercourse and restrictions on it. The"
,Parliament can also confer on that authority the necessary powers
,"and duties. But, no such authority has been appointed so far.7"
, ZONAL COUNCILS
,
,The Zonal Councils are the statutory (and not the constitutional)
,"bodies. They are established by an Act of the Parliament, that is,"
,States Reorganisation Act of 1956. The act divided the country into
,"five zones (Northern, Central, Eastern, Western and Southern) and"
,provided a zonal council for each zone.
,"While forming these zones, several factors have been taken into"
,"account which include: the natural divisions of the country, the river"
,"systems and means of communication, the cultural and linguistic"
,"affinity and the requirements of economic development, security and"
,law and order.
,Each zonal council consists of the following members: (a) home
,minister of Central government. (b) chief ministers of all the States in
,the zone. (c) Two other ministers from each state in the zone. (d)
,Administrator of each union territory in the zone.
,"Besides, the following persons can be associated with the zonal"
,"council as advisors (i.e., without the right to vote in the meetings):"
,(i) a person nominated by the Planning Commission; (ii) chief
,secretary of the government of each state in the zone; and (iii)
,development commissioner of each state in the zone.
,The home minister of Central government is the common
,chairman of the five zonal councils. Each chief minister acts as a
,"vice-chairman of the council by rotation, holding office for a period of"
,one year at a time.
,The zonal councils aim at promoting cooperation and coordination
,"between states, union territories and the Centre. They discuss and"
,make recommendations regarding matters like economic and social
,"planning, linguistic minorities, border disputes, interstate transport,"
,and so on. They are only deliberative and advisory bodies.
,"The objectives (or the functions) of the zonal councils, in detail,"
,are as follows:
,• To achieve an emotional integration of the country.
,"• To help in arresting the growth of acute state-consciousness,"
,"regionalism, lingu-ism and particularistic trends."
,• To help in removing the after-effects of separation in some
,"cases so that the process of reorganisation, integration and"
,economic advancement may synchronise.
,  • To enable the Centre and states to cooperate with each other in
,social and economic matters and exchange ideas and
,experience in order to evolve uniform policies.
,• To cooperate with each other in the successful and speedy
,execution of major development projects.
,• To secure some kind of political equilibrium between different
,regions of the country.
,"North-Eastern Council In addition to the above Zonal Councils, a"
,North-Eastern Council was created by a separate Act of Parliament–
,"the North-Eastern Council Act of 1971.8 Its members include Assam,"
,"Manipur, Mizoram, Arunchal Pradesh, Nagaland, Meghalaya, Tripura"
,"and Sikkim.9 Its functions are similar to those of the zonal councils,"
,but with few additions. It has to formulate a unified and coordinated
,regional plan covering matters of common importance. It has to
,review from time to time the measures taken by the member states
,for the maintenance of security and public order in the region.
,
,Table 15.2 Zonal Councils at a Glance
,Name             Members                             Headquarters
,"1. Northern   Himachal Pradesh, Haryana,             New Delhi"
,"Zonal Council Punjab, Rajasthan, Delhi,"
,"Chandigarh, Jammu and Kashmir"
,and Ladakh
,"2. Central    Uttar Pradesh, Uttarakhand,      Allahabad"
,"Zonal Council Chhattisgarh, and Madhya Pradesh"
,"3. Eastern    Bihar, Jharkhand, West Bengal and Kolkata"
,Zonal Council Odisha
,"4. Western    Gujarat, Maharastra, Goa, Dadra        Mumbai"
,Zonal Council and Nagar Haveli and Daman and
,Diu
,"5. Southern Andhra Pradesh, Telangana,          Chennai"
,"Zonal Council Karnataka, Tamil Nadu, Kerala and"
,Puducherry
,
,Table 15.3 Articles Related to Inter-State Relations at a Glance
,Article No.     Subject Matter
,"          Mutual Recognition of Public Acts, etc."
,"261.       Public acts, records and judicial proceedings"
,Disputes Relating to Waters
,262.       Adjudication of disputes relating to waters of
,inter-state rivers or river valleys
,Co-ordination between States
,263.       Provisions with respect to an inter-state council
,Inter-State Trade and Commerce
,"301.       Freedom of trade, commerce and intercourse"
,302.       Power of Parliament to impose restrictions on
,"trade, commerce and intercourse"
,303.       Restrictions on the legislative powers of the
,Union and of the states with regard to trade and
,commerce
,"304.       Restrictions on trade, commerce and intercourse"
,among states
,305.       Saving of existing laws and laws providing for
,state monopolies
,306.       Power of certain states in Part B of the First
,Schedule to impose restrictions on trade and
,commerce (Repealed)
,307.       Appointment of authority for carrying out the
,purposes of Articles 301 to 304
,
,
,NOTES AND REFERENCES
,1. Report of the Joint Parliamentary Committee. Select
,Committee of the House of Lords appointed to join with a
,Committee of the House of Commons to consider the
,future Government of India.
,"2. M.P. Jain: Indian Constitutional Law, Wadhwa, Fourth"
,"Edition, P. 382."
,3. It was originally known as the Central Council of Local
,Self-Government (1954).
,4. The Central Council of Indian Medicine and the Central
,Council of Homoeopathy were set up under the Acts of
,Parliament.
,"5. The Inter-State Council Order dated May 28, 1990."
,"6. For example, the Parliament has made the Essential"
,Commodities Act (1955). This Act enables the Central
,"government to control the production, supply and"
,distribution of certain essential commodities like
,"petroleum, coal, iron and steel and so on."
,7. In USA such authority is known as the Inter-State
,Commerce Commission.
,"8. It came into existence on August 8, 1972."
,"9. In 2002, Sikkim was added as the eighth member of the"
,North-Eastern Council.
, 16       Emergency Provisions
,
,
,
,
,T
,he Emergency provisions are contained in Part XVIII of the
,"Constitution, from Articles 352 to 360. These provisions"
,enable the Central government to meet any abnormal
,situation effectively. The rationality behind the incorporation of
,these provisions in the Constitution is to safeguard the
,"sovereignty, unity, integrity and security of the country, the"
,"democratic political system, and the Constitution."
,"During an Emergency, the Central government becomes all"
,powerful and the states go into the total control of the Centre. It
,converts the federal structure into a unitary one without a formal
,amendment of the Constitution. This kind of transformation of the
,political system from federal during normal times to unitary during
,Emergency is a unique feature of the Indian Constitution. In this
,"context, Dr. B.R. Ambedkar observed in the Constituent Assembly"
,that1 :
,‘All federal systems including American are placed in a tight
,"mould of federalism. No matter what the circumstances, it"
,cannot change its form and shape. It can never be unitary. On
,"the other hand, the Constitution of India can be both unitary as"
,well as federal according to the requirements of time and
,"circumstances. In normal times, it is framed to work as a federal"
,"system. But in times of Emergency, it is so designed as to make"
,it work as though it was a unitary system.’
,The Constitution stipulates three types of emergencies:
,"1. An emergency due to war, external aggression or armed"
,rebellion2 (Article 352). This is popularly known as ‘National
,"Emergency’. However, the Constitution employs the"
,expression ‘proclamation of emergency’ to denote an
,emergency of this type.
,2. An Emergency due to the failure of the constitutional
,machinery in the states (Article 356). This is popularly known
,as ‘President’s Rule’. It is also known by two other
,   names–‘State Emergency’ or ‘constitutional Emergency’.
,"However, the Constitution does not use the word"
,‘emergency’ for this situation.
,3. Financial Emergency due to a threat to the financial stability
,or credit of India (Article 360).
, NATIONAL EMERGENCY
,
,Grounds of Declaration
,"Under Article 352, the President can declare a national"
,emergency when the security of India or a part of it is threatened
,by war or external aggression or armed rebellion. It may be noted
,that the president can declare a national emergency even before
,the actual occurrence of war or external aggression or armed
,"rebellion, if he is satisfied that there is an imminent danger."
,The President can also issue different proclamations on
,"grounds of war, external aggression, armed rebellion, or imminent"
,"danger thereof, whether or not there is a proclamation already"
,issued by him and such proclamation is in operation. This
,provision was added by the 38th Amendment Act of 1975.
,When a national emergency is declared on the ground of ‘war’
,"or ‘external aggression’, it is known as ‘External Emergency’. On"
,"the other hand, when it is declared on the ground of ‘armed"
,"rebellion’, it is known as ‘Internal Emergency’."
,A proclamation of national emergency may be applicable to the
,entire country or only a part of it. The 42nd Amendment Act of
,1976 enabled the president to limit the operation of a National
,Emergency to a specified part of India.
,"Originally, the Constitution mentioned ‘internal disturbance’ as"
,"the third ground for the proclamation of a National Emergency, but"
,the expression was too vague and had a wider connotation.
,"Hence, the 44th Amendment Act of 1978 substituted the words"
,"‘armed rebellion’ for ‘internal disturbance’. Thus, it is no longer"
,possible to declare a National Emergency on the ground of
,‘internal disturbance’ as was done in 1975 by the Congress
,government headed by Indira Gandhi.
,"The President, however, can proclaim a national emergency"
,only after receiving a written recommendation from the cabi-net3.
,This means that the emergency can be declared only on the
,concurrence of the cabinet and not merely on the advice of the
,"prime minister. In 1975, the then Prime Minister, Indira Gandhi"
,advised the president to proclaim emergency without consulting
,her cabinet. The cabinet was informed of the proclamation after it
,"was made, as a fait accompli. The 44th Amendment Act of 1978"
,introduced this safeguard to eliminate any possibility of the prime
,minister alone taking a decision in this regard.
,The 38th Amendment Act of 1975 made the declaration of a
,"National Emergency immune from the judicial review. But, this"
,provision was subsequently deleted by the 44th Amendment Act
,"of 1978. Further, in the Minerva Mills case4 , (1980), the Supreme"
,Court held that the proclamation of a national emergency can be
,challenged in a court on the ground of malafide or that the
,declaration was based on wholly extraneous and irrelevant facts
,or is absurd or perverse.
,
,Parliamentary Approval and Duration
,The proclamation of Emergency must be approved by both the
,Houses of Parliament within one month from the date of its issue.
,"Originally, the period allowed for approval by the Parliament was"
,"two months, but was reduced by the 44th Amendment Act of"
,"1978. However, if the proclamation of emergency is issued at a"
,time when the Lok Sabha has been dissolved or the dissolution of
,the Lok Sabha takes place during the period of one month without
,"approving the proclamation, then the proclamation survives until"
,30 days from the first sitting of the Lok Sabha after its
,"reconstitution, provided the Rajya Sabha has in the meantime"
,approved it.
,"If approved by both the Houses of Parliament, the emergency"
,"continues for six months, and can be extended to an indefinite"
,period with an approval of the Parliament for every six months.
,This provision for periodical parliamentary approval was also
,"added by the 44th Amendment Act of 1978. Before that, the"
,"emergency, once approved by the Parliament, could remain in"
,"operation as long as the Executive (cabinet) desired. However, if"
,the dissolution of the Lok Sabha takes place during the period of
,six months without approving the further continuance of
,"Emergency, then the proclamation survives until 30 days from the"
,"first sitting of the Lok Sabha after its reconstitution, provided the"
,Rajya Sabha has in the mean-time approved its continuation.
,    Every resolution approving the proclamation of emergency or
,its continuance must be passed by either House of Parliament by
,"a special majority, that is,"
,"(a) a majority of the total membership of that house, and (b) a"
,majority of not less than two-thirds of the members of that
,house present and voting. This special majority provision was
,"introduced by the 44th Amendment Act of 1978. Previously,"
,such resolution could be passed by a simple majority of the
,Parliament.
,
,Revocation of Proclamation
,A proclamation of emergency may be revoked by the President at
,any time by a subsequent proclamation. Such a proclamation
,does not require the parliamentary approval.
,"Further, the President must revoke a proclamation if the Lok"
,"Sabha passes a resolution disapproving its continuation. Again,"
,this safeguard was introduced by the 44th Amendment Act of
,"1978. Before the amendment, a proclamation could be revoked by"
,the president on his own and the Lok Sabha had no control in this
,regard.
,"The 44th Amendment Act of 1978 also provided that, where"
,one-tenth of the total number of members of the Lok Sabha give a
,written notice to the Speaker (or to the president if the House is
,"not in session), a special sitting of the House should be held"
,within 14 days for the purpose of considering a resolution
,disapproving the continuation of the proclamation.
,A resolution of disapproval is different from a resolution
,approving the continuation of a proclamation in the following two
,respects:
,1. The first one is required to be passed by the Lok Sabha
,"only, while the second one needs to be passed by the both"
,Houses of Parliament.
,"2. The first one is to be adopted by a simple majority only,"
,while the second one needs to be adopted by a special
,majority.
,
,Effects of National Emergency
,A proclamation of Emergency has drastic and wide ranging effects
,on the political system. These consequences can be grouped into
,three categories:
,"1. Effect on the Centre-state relations,"
,"2. Effect on the life of the Lok Sabha and State assembly, and"
,3. Effect on the Fundamental Rights.
,
,Effect on the Centre-State Relations
,"While a proclamation of Emergency is in force, the normal fabric"
,of the Centre-state relations undergoes a basic change. This can
,"be studied under three heads, namely, executive, legislative and"
,financial.
,"(a) Executive During a national emergency, the executive power"
,of the Centre extends to directing any state regarding the manner
,"in which its executive power is to be exercised. In normal times,"
,the Centre can give executive directions to a state only on certain
,"specified matters. However, during a national emergency, the"
,Centre becomes entitled to give executive directions to a state on
,"‘any’ matter. Thus, the state governments are brought under the"
,"complete control of the Centre, though they are not suspended."
,"(b) Legislative      During a national emergency, the Parliament"
,becomes empowered to make laws on any subject mentioned in
,the State List. Although the legislative power of a state legislature
,"is not suspended, it becomes subject to the overriding power of"
,"the Parliament. Thus, the normal distribution of the legislative"
,"powers between the Centre and states is suspended, though the"
,"state Legislatures are not suspended. In brief, the Constitution"
,becomes unitary rather than federal.
,The laws made by Parliament on the state subjects during a
,National Emergency become inoperative six months after the
,emergency has ceased to operate.
,"Notably, while a proclamation of national emergency is in"
,"operation, the President can issue ordinances on the state"
,"subjects also, if the Parliament is not in session."
,"Further, the Parliament can confer powers and impose duties"
,upon the Centre or its officers and authorities in respect of matters
,"outside the Union List, in order to carry out the laws made by it"
,under its extended jurisdiction as a result of the proclamation of a
,National Emergency.
,The 42nd Amendment Act of 1976 provided that the two
,consequences mentioned above (executive and legislative)
,extends not only to a state where the Emergency is in operation
,but also to any other state.
,(c) Financial While a proclamation of national emergency is in
,"operation, the President can modify the constitutional distribution"
,of revenues between the centre and the states. This means that
,the president can either reduce or cancel the transfer of finances
,from Centre to the states. Such modification continues till the end
,of the financial year in which the Emergency ceases to operate.
,"Also, every such order of the President has to be laid before both"
,the Houses of Parliament.
,
,Effect on the Life of the Lok Sabha and State Assembly
,"While a proclamation of National Emergency is in operation, the"
,life of the Lok Sabha may be extended beyond its normal term
,(five years) by a law of Parliament for one year at a time (for any
,"length of time). However, this extension cannot continue beyond a"
,period of six months after the emergency has ceased to operate.
,"For example, the term of the Fifth Lok Sabha (1971–1977) was"
,extended two times by one year at a time5 .
,"Similarly, the Parliament may extend the normal tenure of a"
,state legislative assembly (five years) by one year each time (for
,"any length of time) during a national emergency, subject to a"
,maximum period of six months after the Emergency has ceased to
,operate.
,
,Effect on the Fundamental Rights
,Articles 358 and 359 describe the effect of a National Emergency
,on the Fundamental Rights. Article 358 deals with the suspension
,"of the Fundamental Rights guaranteed by Article 19, while Article"
,359 deals with the suspension of other Fundamental Rights
,(except those guaranteed by Articles 20 and 21). These two
,provisions are explained below:
,
,(a) Suspension of Fundamental Rights under Article 19
,"According to Article 358, when a proclamation of national"
,"emergency is made, the six Fundamental Rights under Article 19"
,are automatically suspended. No separate order for their
,suspension is required.
,"While a proclamation of national emergency is in operation, the"
,state is freed from the restrictions imposed by Article 19. In other
,"words, the state can make any law or can take any executive"
,action abridging or taking away the six Fundamental Rights
,guaranteed by Article 19. Any such law or executive action cannot
,be challenged on the ground that they are inconsistent with the six
,Fundamental Rights guaranteed by Article 19. When the National
,"Emergency ceases to operate, Article 19 automatically revives"
,"and comes into force. Any law made during Emergency, to the"
,"extent of inconsistency with Article 19, ceases to have effect."
,"However, no remedy lies for anything done during the Emergency"
,even after the Emergency expires. This means that the legislative
,and executive actions taken during the emergency cannot be
,challenged even after the Emergency ceases to operate.
,The 44th Amendment Act of 1978 restricted the scope of Article
,"358 in two ways. Firstly, the six Fundamental Rights under Article"
,19 can be suspended only when the National Emergency is
,declared on the ground of war or external aggression and not on
,"the ground of armed rebellion. Secondly, only those laws which"
,are related with the Emergency are protected from being
,"challenged and not other laws. Also, the executive action taken"
,only under such a law is protected.
,
,(b) Suspension of other Fundamental Rights
,Article 359 authorises the president to suspend the right to move
,any court for the enforcement of Fundamental Rights during a
,"National Emergency. This means that under Article 359, the"
,"Fundamental Rights as such are not suspended, but only their"
,enforcement. The said rights are theoretically alive but the right to
,seek remedy is suspended. The suspension of enforcement
,relates to only those Fundamental Rights that are specified in the
,"Presidential Order. Further, the suspension could be for the period"
,during the operation of emergency or for a shorter period as
,"mentioned in the order, and the suspension order may extend to"
,the whole or any part of the country. It should be laid before each
,House of Parliament for approval.
,"While a Presidential Order is in force, the State can make any"
,law or can take any executive action abridging or taking away the
,specified Fundamental Rights. Any such law or executive action
,cannot be challenged on the ground that they are inconsistent
,with the specified Fundamental Rights. When the Order ceases to
,"operate, any law so made, to the extent of inconsistency with the"
,"specified Fundamental Rights, ceases to have effect. But no"
,remedy lies for anything done during the operation of the order
,even after the order ceases to operate. This means that the
,legislative and executive actions taken during the operation of the
,Order cannot be challenged even after the Order expires.
,The 44th Amendment Act of 1978 restricted the scope of Article
,"359 in two ways. Firstly, the President cannot suspend the right to"
,move the Court for the enforcement of fundamental rights
,"guaranteed by Articles 20 to 21. In other words, the right to"
,protection in respect of conviction for offences (Article 20) and the
,right to life and personal liberty (Article 21) remain enforceable
,"even during emergency. Secondly, only those laws which are"
,related with the emergency are protected from being challenged
,and not other laws and the executive action taken only under such
,"a law, is protected."
,
,Distinction Between Articles 358 and 359
,The differences between Articles 358 and 359 can be summarised
,as follows:
,1. Article 358 is confined to Fundamental Rights under Article
,19 only whereas Article 359 extends to all those
,Fundamental Rights whose enforcement is suspended by
,the Presidential Order.
,2. Article 358 automatically suspends the fundamental rights
,under Article 19 as soon as the emergency is declared. On
,"the other hand, Article 359 does not automatically suspend"
,any Fundamental Right. It only empowers the president to
,suspend the enforcement of the specified Fundamental
,Rights.
,   3. Article 358 operates only in case of External Emergency
,"(that is, when the emergency is declared on the grounds of"
,war or external aggression) and not in the case of Internal
,"Emergency (ie, when the Emergency is declared on the"
,"ground of armed rebellion). Article 359, on the other hand,"
,operates in case of both External Emergency as well as
,Internal Emergency.
,4. Article 358 suspends Fundamental Rights under Article 19
,for the entire duration of Emergency while Article 359
,suspends the enforcement of Fundamental Rights for a
,period specified by the president which may either be the
,entire duration of Emergency or a shorter period.
,5. Article 358 extends to the entire country whereas Article 359
,may extend to the entire country or a part of it.
,6. Article 358 suspends Article 19 completely while Article 359
,does not empower the suspension of the enforcement of
,Articles 20 and 21.
,7. Article 358 enables the State to make any law or take any
,executive action inconsistent with Fundamental Rights under
,Article 19 while Article 359 enables the State to make any
,law or take any executive action inconsistent with those
,Fundamental Rights whose enforcement is suspended by
,the Presidential Order.
,There is also a similarity between Article 358 and Article 359.
,Both provide immunity from challenge to only those laws which
,"are related with the Emergency and not other laws. Also, the"
,executive action taken only under such a law is protected by both.
,
,Declarations Made So Far
,This type of Emergency has been proclaimed three times so far–
,"in 1962, 1971 and 1975."
,The first proclamation of National Emergency was issued in
,October 1962 on account of Chinese aggression in the NEFA
,"(North-East Frontier Agency–now Arunachal Pradesh), and was in"
,"force till January 1968. Hence, a fresh proclamation was not"
,needed at the time of war against Pakistan in 1965.
,The second proclamation of national emergency was made in
,December 1971 in the wake of attack by Pakistan. Even when this
,"Emergency was in operation, a third proclamation of National"
,Emergency was made in June 1975. Both the second and third
,proclamations were revoked in March 1977.
,The first two proclamations (1962 and 1971) were made on the
,"ground of ‘external aggression’, while the third proclamation"
,"(1975) was made on the ground of ‘internal disturbance’, that is,"
,certain persons have been inciting the police and the armed
,forces against the discharge of their duties and their normal
,functioning.
,The Emergency declared in 1975 (internal emergency) proved
,to be the most controversial. There was widespread criticism of
,the misuse of Emergency powers. In the elections held to the Lok
,"Sabha in 1977 after the Emergency, the Congress Party led by"
,Indira Gandhi lost and the Janta Party came to power. This
,government appointed the Shah Commission to investigate the
,circumstances that warranted the declaration of an Emergency in
,1975. The commission did not justify the declaration of the
,"Emergency. Hence, the 44th Amendment Act was enacted in"
,1978 to introduce a number of safeguards against the misuse of
,Emergency provisions.
, PRESIDENT’S RULE
,
,Grounds of Imposition
,Article 355 imposes a duty on the Centre to ensure that the
,government of every state is carried on in accordance with the
,provisions of the Constitution. It is this duty in the performance of
,which the Centre takes over the government of a state under
,Article 356 in case of failure of constitutional machinery in state.
,This is popularly known as ‘President’s Rule’. It is also known as
,‘State Emergency’ or ‘Constitutional Emergency’.
,The President’s Rule can be proclaimed under Article 356 on
,two grounds–one mentioned in Article 356 itself and another in
,Article 365:
,"1. Article 356 empowers the President to issue a proclamation,"
,if he is satisfied that a situation has arisen in which the
,government of a state cannot be carried on in accordance
,"with the provisions of the Constitution. Notably, the president"
,can act either on a report of the governor of the state or
,"otherwise too (ie, even without the governor’s report)."
,2. Article 365 says that whenever a state fails to comply with or
,"to give effect to any direction from the Centre, it will be lawful"
,for the president to hold that a situation has arisen in which
,the government of the state cannot be carried on in
,accordance with the provisions of the Constitution.
,
,Parliamentary Approval and Duration
,A proclamation imposing President’s Rule must be approved by
,both the Houses of Parliament within two months from the date of
,"its issue. However, if the proclamation of President’s Rule is"
,issued at a time when the Lok Sabha has been dissolved or the
,dissolution of the Lok Sabha takes place during the period of two
,"months without approving the proclamation, then the proclamation"
,survives until 30 days from the first sitting of the Lok Sabha after
,"its reconstitution, provided the Rajya Sabha approves it in the"
,mean time.
,"    If approved by both the Houses of Parliament, the President’s"
,Rule continues for six months6. It can be extended for a maximum
,"period of three years7 with the approval of the Parliament, every"
,"six months. However, if the dissolution of the Lok Sabha takes"
,place during the period of six months without approving the further
,"continuation of the President’s Rule, then the proclamation"
,survives until 30 days from the first sitting of the Lok Sabha after
,"its reconstitution, provided the Rajya Sabha has in the meantime"
,approved its continuance.
,Every resolution approving the proclamation of President’s Rule
,or its continuation can be passed by either House of Parliament
,"only by a simple majority, that is, a majority of the members of that"
,House present and voting.
,The 44th Amendment Act of 1978 introduced a new provision
,to put restraint on the power of Parliament to extend a
,"proclamation of President’s Rule beyond one year. Thus, it"
,"provided that, beyond one year, the President’s Rule can be"
,extended by six months at a time only when the following two
,conditions are fulfilled:
,1. a proclamation of National Emergency should be in
,"operation in the whole of India, or in the whole or any part of"
,the state; and
,2. the Election Commission must certify that the general
,elections to the legislative assembly of the concerned state
,cannot be held on account of difficulties.
,A proclamation of President’s Rule may be revoked by the
,President at any time by a subsequent proclamation. Such a
,proclamation does not require the parliamentary approval.
,
,Consequences of President’s Rule
,The President acquires the following extraordinary powers when
,the President’s Rule is imposed in a state:
,1. He can take up the functions of the state government and
,powers vested in the governor or any other executive
,authority in the state.
,2. He can declare that the powers of the state legislature are to
,be exercised by the Parliament.
,    3. He can take all other necessary steps including the
,suspension of the constitutional provisions relating to any
,body or authority in the state.
,"Therefore, when the President’s Rule is imposed in a state, the"
,President dismisses the state council of ministers headed by the
,"chief minister. The state governor, on behalf of the President,"
,carries on the state administration with the help of the chief
,secretary of the state or the advisors appointed by the President.
,This is the reason why a proclamation under Article 356 is
,popularly known as the imposition of ‘President’s Rule’ in a state.
,"Further, the President either suspends or dissolves the state"
,legislative assembly8. The Parliament passes the state legislative
,bills and the state budget.
,When the state legislature is thus suspended or dissolved:
,1. the Parliament can delegate the power to make laws for the
,state to the President or to any other authority specified by
,"him in this regard,"
,"2. the Parliament or in case of delegation, the President or any"
,other specified authority can make laws conferring powers
,and imposing duties on the Centre or its officers and
,"authorities,"
,"3. the President can authorise, when the Lok Sabha is not in"
,"session, expenditure from the state consolidated fund"
,"pending its sanction by the Parliament, and"
,"4. the President can promulgate, when the Parliament is not in"
,"session, ordinances for the governance of the state."
,A law made by the Parliament or president or any other
,specified authority continues to be operative even after the
,President’s Rule. This means that the period for which such a law
,remains in force is not coterminous with the duration of the
,proclamation. But it can be repealed or altered or re-enacted by
,the state legislature.
,It should be noted here that the President cannot assume to
,himself the powers vested in the concerned state high court or
,suspend the provisions of the Constitution relating to it. In other
,"words, the constitutional position, status, powers and functions of"
,the concerned state high court remain same even during the
,President’s Rule.
,Use of Article 356
,"Since 1950, the President’s Rule has been imposed on more than"
,"125 occasions, that is, on an average twice a year. Further, on a"
,"number of occasions, the President’s Rule has been imposed in"
,"an arbitrary manner for political or personal reasons. Hence,"
,Article 356 has become one of the most controversial and most
,criticised provision of the Constitution.
,
,Table 16.1 Comparing National Emergency and President’s Rule
,National Emergency (Article President’s            Rule    (Article
,352)                        356)
,1. It can be proclaimed only        1. It can be proclaimed when
,when the security of India          the government of a state
,or a part of it is threatened       cannot be carried on in
,"by war, external aggression         accordance       with    the"
,or armed rebellion.                 provisions       of      the
,Constitution due to reasons
,which may not have any
,"connection     with     war,"
,external    aggression    or
,armed rebellion.
,"2. During its operation, the        2. During its operation, the"
,state      executive      and       state       executive      is
,legislature     continue    to      dismissed and the state
,function and exercise the           legislature     is    either
,powers assigned to them             suspended or dissolved.
,under the Constitution. Its         The president administers
,effect is that the Centre           the state through the
,gets concurrent powers of           governor       and       the
,administration            and       Parliament makes laws for
,"legislation in the state.           the state. In brief, the"
,executive and legislative
,powers of the state are
,assumed by the Centre.
,"3. Under this, the Parliament       3. Under this, the Parliament"
,can make laws on the                can delegate the power to
,   subjects enumerated in the           make laws for the state to
,"State List only by itself, that      the President or to any"
,"is, it cannot delegate the           other authority specified by"
,"same to any other body or            him. So far, the practice"
,authority.                           has been for the president
,to make laws for the state
,in consultation with the
,members of Parliament
,from that state. Such laws
,are known as President’s
,Acts.
,4. There is no maximum               4. There is a maximum period
,"period prescribed for its            prescribed for its operation,"
,"operation.    It  can   be           that    is,   three   years."
,"continued indefinitely with          Thereafter, it must come to"
,the approval of Parliament           an end and the normal
,for every six months.                constitutional     machinery
,must be restored in the
,state.
,"5. Under this, the relationship      5. Under this, the relationship"
,of the Centre with all the           of only the state under
,states     undergoes       a         emergency with the Centre
,modification.                        undergoes a modification.
,6. Every     resolution  of          6. Every      resolution       of
,Parliament approving its             Parliament approving its
,proclamation      or its             proclamation       or      its
,continuance    must  be              continuance can be passed
,passed by a special                  only by a simple majority.
,majority.
,7. It affects fundamental rights     7. It has no effect on
,of the citizens.                     Fundamental Rights of the
,citizens.
,8. Lok Sabha can pass a              8. There is no such provision.
,resolution for its revocation.       It can be revoked by the
,President only on his own.
,"   For the first time, the President’s Rule was imposed in Punjab"
,"in 1951. By now, all most all the states have been brought under"
,"the President’s Rule, once or twice or more. The details in this"
,regard are given in Table 16.2 at the end of this chapter.
,When general elections were held to the Lok Sabha in 1977
,"after the internal emergency, the ruling Congress Party lost and"
,the Janta Party came to power. The new government headed by
,Morarji Desai imposed President’s Rule in nine states9 (where the
,Congress Party was in power) on the ground that the assemblies
,in those states no longer represented the wishes of the electorate.
,"When the Congress Party returned to power in 1980, it did the"
,same in nine states10 on the same ground.
,"In 1992, President’s Rule was imposed in three BJP-ruled"
,"states (Madhya Pradesh, Himachal Pradesh and Rajasthan) by"
,the Congress Party on the ground that they were not
,implementing sincerely the ban imposed by the Centre on
,religious organisations. In a landmark judgement in Bommai
,"case11 (1994), the Supreme Court upheld the validity of this"
,proclamation on the ground that secularism is a ‘basic feature’ of
,"the Constitution. But, the court did not uphold the validity of the"
,"imposition of the President’s Rule in Nagaland in 1988, Karnataka"
,in 1989 and Meghalaya in 1991.
,"Dr. B.R. Ambedkar, while replying to the critics of this provision"
,"in the Constituent Assembly, hoped that the drastic power"
,conferred by Article 356 would remain a ‘deadletter’ and would be
,used only as a measure of last resort. He observed12 :
,"“The intervention of the Centre must be deemed to be barred,"
,because that would be an invasion on the sovereign authority
,of the province (state). That is a fundamental proposition which
,we must accept by reason of the fact that we have a Federal
,"Constitution. That being so, if the Centre is to interfere in the"
,"administration of provincial affairs, it must be under some"
,obligation which the Constitution imposes upon the Centre. The
,proper thing we ought to expect is that such Articles will never
,be called into operation and that they would remain a dead-
,"letter. If at all they are brought into operation, I hope the"
,President who is endowed with this power will take proper
,   precautions before actually suspending the administration of
,the province.”
,"However, the subsequent events show that what was hoped to"
,be a ‘dead-letter’ of the Constitution has turned to be a ‘deadly-
,weapon’ against a number of state governments and legislative
,"assemblies. In this context, H.V. Kamath, a member of the"
,Constituent Assembly commented a decade ago: ‘Dr. Ambedkar
,is dead and the Articles are very much alive’.
,
,Scope of Judicial Review
,The 38th Amendment Act of 1975 made the satisfaction of the
,President in invoking Article 356 final and conclusive which could
,"not be challenged in any court on any ground. But, this provision"
,was subsequently deleted by the 44th Amendment Act of 1978
,implying that the satisfaction of the President is not beyond
,judicial review.
,"In Bommai case (1994), the following propositions have been"
,laid down by the Supreme Court on imposition of President’s Rule
,in a state under Article 356:
,1. The presidential proclamation imposing President’s Rule is
,subject to judicial review.
,2. The satisfaction of the President must be based on relevant
,material. The action of the president can be struck down by
,the court if it is based on irrelevant or extraneous grounds or
,if it was found to be malafide or perverse.
,3. Burden lies on the Centre to prove that relevant material
,exist to justify the imposition of the President’s Rule.
,4. The court cannot go into the correctness of the material or
,its adequacy but it can see whether it is relevant to the
,action.
,5. If the court holds the presidential proclamation to be
,"unconstitutional and invalid, it has power to restore the"
,dismissed state government and revive the state legislative
,assembly if it was suspended or dissolved.
,6. The state legislative assembly should be dissolved only after
,the Parliament has approved the presidential proclamation.
,"Until such approval is given, the president can only suspend"
,       the assembly. In case the Parliament fails to approve the
,"proclamation, the assembly would get reactivated."
,7.   Secularism is one of the ‘basic features’ of the Constitution.
,"Hence, a state government pursuing anti-secular politics is"
,liable to action under Article 356.
,8.   The question of the state government losing the confidence
,of the legislative assembly should be decided on the floor of
,the House and until that is done the ministry should not be
,unseated.
,"9.   Where a new political party assumes power at the Centre, it"
,will not have the authority to dismiss ministries formed by
,other parties in the states.
,10.    The power under Article 356 is an exceptional power and
,should be used only occassionally to meet the requirements
,of special situations.
,
,Cases of Proper and Improper Use
,Based on the report of the Sarkaria Commission on Centre-state
,"Relations (1988), the Supreme Court in Bommai case (1994)"
,enlisted the situations where the exercise of power under Article
,356 could be proper or improper13 .
,Imposition of President’s Rule in a state would be proper in the
,following situations:
,"1. Where after general elections to the assembly, no party"
,"secures a majority, that is, ‘Hung Assembly’."
,2. Where the party having a majority in the assembly declines
,to form a ministry and the governor cannot find a coalition
,ministry commanding a majority in the assembly.
,3. Where a ministry resigns after its defeat in the assembly and
,no other party is willing or able to form a ministry
,commanding a majority in the assembly.
,4. Where a constitutional direction of the Central government is
,disregarded by the state government.
,"5. Internal subversion where, for example, a government is"
,deliberately acting against the Constitution and the law or is
,fomenting a violent revolt.
,6. Physical breakdown where the government wilfully refuses
,to discharge its constitutional obligations endangering the
,     security of the state.
,The imposition of President’s Rule in a state would be improper
,under the following situations:
,1. Where a ministry resigns or is dismissed on losing majority
,support in the assembly and the governor recommends
,imposition of President’s Rule without probing the possibility
,of forming an alternative ministry.
,2. Where the governor makes his own assessment of the
,support of a ministry in the assembly and recommends
,imposition of President’s Rule without allowing the ministry
,to prove its majority on the floor of the Assembly.
,3. Where the ruling party enjoying majority support in the
,assembly has suffered a massive defeat in the general
,elections to the Lok Sabha such as in 1977 and 1980.
,4. Internal disturbances not amounting to internal subversion or
,physical breakdown.
,5. Maladministration in the state or allegations of corruption
,against the minis-tryor stringent financial exigencies of the
,state.
,6. Where the state government is not given prior warning to
,rectify itself except in case of extreme urgency leading to
,disastrous consequences.
,7. Where the power is used to sort out intraparty problems of
,"the ruling party, or for a purpose extraneous or irrelevant to"
,the one for which it has been conferred by the Constitution.
, FINANCIAL EMERGENCY
,
,Grounds of Declaration
,Article 360 empowers the president to proclaim a Financial
,Emergency if he is satisfied that a situation has arisen due to
,which the financial stability or credit of India or any part of its
,territory is threatened.
,The 38th Amendment Act of 1975 made the satisfaction of the
,president in declaring a Financial Emergency final and conclusive
,"and not questionable in any court on any ground. But, this"
,provision was subsequently deleted by the 44th Amendment Act
,of 1978 implying that the satisfaction of the president is not
,beyond judicial review.
,
,Parliamentary Approval and Duration
,A proclamation declaring financial emergency must be approved
,by both the Houses of Parliament within two months from the date
,"of its issue. However, if the proclamation of Financial Emergency"
,is issued at a time when the Lok Sabha has been dissolved or the
,dissolution of the Lok Sabha takes place during the period of two
,"months without approving the proclamation, then the proclamation"
,survives until 30 days from the first sitting of the Lok Sabha after
,"its reconstitution, provided the Rajya Sabha has in the meantime"
,approved it.
,"Once approved by both the Houses of Parliament, the Financial"
,Emergency continues indefinitely till it is revoked. This implies two
,things:
,1. there is no maximum period prescribed for its operation; and
,2. repeated parliamentary approval is not required for its
,continuation.
,A resolution approving the proclamation of financial emergency
,can be passed by either House of Parliament only by a simple
,"majority, that is, a majority of the members of that house present"
,and voting.
,   A proclamation of Financial Emergency may be revoked by the
,president at anytime by a subsequent proclamation. Such a
,proclamation does not require the parliamentary approval.
,
,Effects of Financial Emergency
,The consequences of the proclamation of a Financial Emergency
,are as follows:
,1. The executive authority of the Centre extends to the giving
,of (a) directions to any state to observe such canons of
,financial propriety as may be specified in the directions; and
,(b) such other directions to any state as the President may
,deem necessary and adequate for the purpose.
,2. Any such direction may include a provision requiring (a) the
,reduction of salaries and allowances of all or any class of
,persons serving in the state; and (b) the reservation of all
,money bills or other financial bills for the consideration of the
,President after they are passed by the legislature of the
,state.
,3. The President may issue directions for the reduction of
,salaries and allowances of (a) all or any class of persons
,serving the Union; and (b) the judges of the Supreme Court
,and the high court.
,"Thus, during the operation of a financial emergency, the Centre"
,acquires full control over the states in financial matters. H.N.
,"Kunzru, a member of the Constituent Assembly, stated that the"
,financial emergency provisions pose a serious threat to the
,financial autonomy of the states. Explaining the reasons for their
,"inclusion in the Constitution, Dr. B.R. Ambedkar observed in the"
,Constituent Assembly14 :
,“This Article more or less follows the pattern of what is called
,"the National Recovery Act of the United States passed in 1933,"
,which gave the president power to make similar provisions in
,"order to remove the difficulties, both economical and financial, that"
,"had overtaken the American people, as a result of the Great"
,Depression.”
,"No Financial Emergency has been declared so far, though"
,there was a financial crisis in 1991.
, CRITICISM OF THE EMERGENCY PROVISIONS
,Some members of the Constituent Assembly criticised the
,incorporation of emergency provisions in the Constitution on the
,following grounds15 :
,1. ‘The federal character of the Constitution will be destroyed
,and the Union will become all powerful.
,2. The powers of the State–both the Union and the units–will
,entirely be concentrated in the hands of the Union executive.
,3. The President will become a dictator.
,4. The financial autonomy of the state will be nullified.
,"5. Fundamental rights will become meaningless and, as a"
,"result, the democratic foundations of the Constitution will be"
,destroyed.’
,"Thus, H.V. Kamath observed: ‘I fear that by this single chapter"
,"we are seeking to lay the foundation of a totalitarian state, a police"
,"state, a state completely opposed to all the ideals and principles"
,"that we have held aloft during the last few decades, a State where"
,the rights and liberties of millions of innocent men and women will
,"be in continuous jeopardy, a State where if there be peace, it will"
,be the peace of the grave and the void of the desert(. . .) It will be
,a day of shame and sorrow when the President makes use of
,these Powers having no parallel in any Constitution of the
,democratic countries of the world’16 .
,K.T. Shah described them as: ‘A chapter of reaction and
,retrogression. (. . .) I find one cannot but notice two distinct
,currents of thought underlying and influencing throughout the
,provisions of this chapter: (a) to arm the Centre with special
,powers against the units and (b) to arm the government against
,the people . . . Looking at all the provisions of this chapter
,particularly and scrutinising the powers that have been given in
,"almost every article, it seems to me, the name only of liberty or"
,democracy will remain under the Constitution’.
,T.T. Krishnamachari feared that ‘by means of these provisions
,the President and the Executive would be exercising a form of
,constitutional dictatorship’17 .
,   H.N. Kunzru opined that ‘the emergency financial provisions
,pose a serious threat to the financial autonomy of the States.’
,"However, there were also protagonists of the emergency"
,"provisions in the Constituent Assembly. Thus, Sir Alladi"
,Krishnaswami Ayyar labelled them as ‘the very life-breath of the
,Constitution’. Mahabir Tyagi opined that they would work as a
,‘safety-valve’ and thereby help in the maintenance of the
,Constitution18 .
,While defending the emergency provisions in the Constituent
,"Assembly, Dr. B.R. Ambedkar also accepted the possibility of their"
,"misuse. He observed, ‘I do not altogether deny that there is a"
,possibility of the Articles being abused or employed for political
,purposes’19 .
,
,Table 16.2 Imposition of President’s Rule (1951–2019)
,Sl. States/Union         No. of Times        Years of
,No. Territories          Imposed             Imposition
,I. States:
,"1.     Andhra Pradesh     3                   195420 , 1973,"
,2014
,"2.     Arunachal          2                   1979, 2016"
,Pradesh
,"3.     Assam              4                   1979, 1981, 1982,"
,1990
,"4.     Bihar              8                   1968, 1969, 1972,"
,"1977, 1980, 1995,"
,"1999, 2005"
,5.     Chhattisgarh       --                  --
,"6.     Goa                5                   1966, 1979, 1990,"
,"1999, 2005"
,"7.     Gujarat            5                   1971, 1974, 1976,"
,"1980, 1996"
,"8.     Haryana            3                   1967, 1977, 1991"
,"9.     Himachal Pradesh 2                     1977, 1992"
,"10.   Jharkhand       3    2009, 2010, 2013"
,"11.   Karnataka       6    1971, 1977, 1989,"
,"1990, 2007, 2007"
,"12.   Kerala          5    195621 , 1959,"
,"1964, 1970, 1979"
,"13.   Madhya Pradesh22 3   1977, 1980, 1992"
,"14.   Maharashtra     2    1980, 2014"
,"15.   Manipur         10   1967, 1967, 1969,"
,"1973, 1977, 1979,"
,"1981, 1992, 1993,"
,2001
,"16.   Meghalaya       2    1991, 2009"
,"17.   Mizoram         3    1977, 1978, 1988"
,"18.   Nagaland        4    1975, 1988, 1992,"
,2008
,"19.   Odisha          6    1961, 1971, 1973,"
,"1976, 1977, 1980"
,"20.   Punjab23        8    1951, 1966, 1968,"
,"1971, 1977, 1980,"
,"1983, 1987"
,"21.   Rajasthan       4    1967, 1977, 1980,"
,1992
,"22.   Sikkim          2    1978, 1984"
,"23.   Tamil Nadu      4    1976, 1980, 1988,"
,1991
,24.   Telangana       --   --
,"25.   Tripura         3    1971, 1977, 1993"
,"26.   Uttarakhand     2    2016, 2016"
,"27.   Uttar Pradesh   9    1968, 1970, 1973,"
,"1975, 1977, 1980,"
,"1992, 1995, 2002"
,"28.   West Bengal     4    1962, 1968, 1970,"
,                                                 1971
,II. Union Territories:
,1.     Delhi                1                    2014
,"2.     Puducherry           6                    1968, 1974, 1974,"
,"1978, 1983, 1991"
,3.     Jammu and            1                    2019
,Kashmir24
,
,Table 16.3 Articles Related to Emergency Provisions at a Glance
,Article No. Subject-matter
,352.      Proclamation of Emergency
,353.      Effect of Proclamation of Emergency
,354.      Application of provisions relating to distribution of
,revenues while a Proclamation of Emergency is in
,operation
,355.      Duty of the Union to protect states against external
,aggression and internal disturbance
,356.      Provisions in case of failure of constitutional
,machinery in states
,357.      Exercise of legislative powers under proclamation
,issued under Article 356
,358.      Suspension of provisions of Article 19 during
,Emergencies
,359.      Suspension of the enforcement of the rights
,conferred by Part III during Emergencies
,359A.     Application of this part to the state of Punjab
,(Repealed)
,360.      Provisions as to Financial Emergency
,
,
,NOTES AND REFERENCES
,"1. Constituent Assembly Debates, Volume VII, p. 34."
, 2. The phrase ‘armed rebellion’ was inserted by the 44th
,"Amendment Act of 1978, replacing the original phrase"
,‘internal disturbance’.
,3. Article 352 defines the term ‘Cabinet’ as the council
,consisting of the Prime Minister and other ministers of
,the Cabinet rank.
,"4. Minerva Mills v. Union of India, (1980)."
,5. The term of the Fifth Lok Sabha which was to expire on
,"18 March, 1976 was extended by one year upto 18"
,"March, 1977 by the House of the People (Extension of"
,"Duration) Act, 1976. It was extend for a further period of"
,"one year upto 18 March, 1978 by the House of the"
,"People (Extension of Duration) Amendment Act, 1976."
,"However, the House was dissolved on 18 January,"
,"1977, after having been in existence for a period of five"
,"years, ten months and six days."
,6. The 42nd Amendment Act of 1976 had raised the
,"period of six months to one year. Thus, once approved"
,"by both the Houses of Parliament, the proclamation of"
,"President’s Rule could continue for one year. But, the"
,44th Amendment Act of 1978 again reduced the period
,to six months.
,"7. The President’s Rule imposed in May, 1987 in Punjab"
,was allowed to continue for five years under the 68th
,Amendment Act of 1991.
,"8. In case of dissolution, fresh elections are held for"
,constituting a new legislative assembly in the state.
,"9. Those nine States include Rajasthan, Uttar Pradesh,"
,"Madhya Pradesh, Punjab, Bihar, Himachal Pradesh,"
,"Orissa, West Bengal and Haryana."
,"10. Those nine states include Uttar Pradesh, Bihar,"
,"Rajasthan, Madhya Pradesh, Punjab, Orissa, Gujarat,"
,Maharashtra and Tamil Nadu.
,11. S.R. Bommai v. Union of India (1994).
,"12. Constituent Assembly Debates, Volume IX, p. 133 and"
,177
,"13. Report of the Commission on Centre- State Relations,"
,"Part I, p. 165–180 (1988)."
,"14. Constituent Assembly Debates, Volume X, p. 361–372."
,"15. Quoted from M.V. Pylee, India’s Constitution, S Chand,"
,"Fifth Edition, 1994, p. 280."
,"16. Constituent Assembly Debates, Volume IX, p. 105."
,"17. Ibid, p. 123."
,"18. Ibid, p. 547."
,"19. Ibid, p. 177."
,20. This was imposed in Andhra State.
,21. This was imposed in Travancore-Cochin.
,22. Vindhya Pradesh had President’s Rule from 1949–
,1952. This state was merged into that of Madhya
,Pradesh State in 1956.
,"23. In 1953, the President’s Rule was imposed in Patiala"
,and East Punjab States Union (PEPSU) which was
,merged into that of Punjab State in 1956.
,24. The President’s Rule was imposed in the erstwhile state
,"of Jammu and Kashmir on 8 times, that is, in 1977,"
,"1986, 1990, 2002, 2015, 2016, 2018."
,                   PART-III
,CENTRAL GOVERNMENT
,
,17. President
,18. Vice-President
,19. Prime Minister
,20. Central Council of Ministers
,21. Cabinet Committees
,22. Parliament
,23. Parliamentary Committees
,24. Parliamentary Forums
,25. Parliamentary Group
,26. Supreme Court
,27. Judicial Review
,28. Judicial Activism
,29. Public Interest Litigation
, 17       President
,
,
,
,
,A
,rticles 52 to 78 in Part V of the Constitution deal with the Union
,executive.
,"The Union executive consists of the President, the Vice-"
,"President, the Prime Minister, the council of ministers and the attorney"
,general of India.
,The President is the head of the Indian State. He is the first citizen
,"of India and acts as the symbol of unity, integrity and solidarity of the"
,nation.
, ELECTION OF THE PRESIDENT
,The President is elected not directly by the people but by members of
,electoral college consisting of:
,1. the elected members of both the Houses of Parliament;
,2. the elected members of the legislative assemblies of the states;
,and
,3. the elected members of the legislative assemblies of the Union
,Territories of Delhi and Puducherry1 .
,"Thus, the nominated members of both of Houses of Parliament, the"
,"nominated members of the state legislative assemblies, the members"
,(both elected and nominated) of the state legislative councils (in case
,of the bicameral legislature) and the nominated members of the
,Legislative Assemblies of Delhi and Puducherry do not participate in
,"the election of the President. Where an assembly is dissolved, the"
,"members cease to be qualified to vote in presidential election, even if"
,fresh elections to the dissolved assembly are not held before the
,presidential election.
,The Constitution provides that there shall be uniformity in the scale
,of representation of different states as well as parity between the
,states as a whole and the Union at the election of the President. To
,"achieve this, the number of votes which each elected member of the"
,legislative assembly of each state and the Parliament is entitled to
,cast at such election shall be determined in the following manner:
,1. Every elected member of the legislative assembly of a state
,shall have as many votes as there are multiples of one thousand
,in the quotient obtained by dividing the population of the state by
,the total number of the elected members of the assembly2. This
,can be expressed as:
,
,
,
,
,2. Every elected member of either House of Parliament shall have
,such number of votes as may be obtained by dividing the total
,number of votes assigned to members of the legislative
,assemblies of the states by the total number of the elected
,     members of both the Houses of Parliament. This can be
,expressed as:
,
,
,
,
,The President’s election is held in accordance with the system of
,proportional representation by means of the single transferable vote
,and the voting is by secret ballot. This system ensures that the
,successful candidate is returned by the absolute majority of votes. A
,"candidate, in order to be declared elected to the office of President,"
,must secure a fixed quota of votes. The quota of votes is determined
,by dividing the total number of valid votes polled by the number of
,candidates to be elected (here only one candidate is to be elected as
,President) plus one and adding one to the quotient. The formula can
,be expressed as:
,
,
,
,
,Each member of the electoral college is given only one ballot paper.
,"The voter, while casting his vote, is required to indicate his"
,"preferences by marking 1, 2, 3, 4, etc. against the names of"
,candidates. This means that the voter can indicate as many
,preferences as there are candidates in the fray.
,"In the first phase, the first preference votes are counted. In case a"
,"candidate secures the required quota in this phase, he is declared"
,"elected. Otherwise, the process of transfer of votes is set in motion."
,The ballots of the candidate securing the least number of first
,preference votes are cancelled and his second preference votes are
,transferred to the first preference votes of other candidates. This
,process continues till a candidate secures the required quota.
,All doubts and disputes in connection with election of the President
,are inquired into and decided by the Supreme Court whose decision is
,final. The election of a person as President cannot be challenged on
,"the ground that the electoral college was incomplete (ie, existence of"
,any vacancy among the members of electoral college). If the election
,"of a person as President is declared void by the Supreme Court, acts"
,done by him before the date of such declaration of the Supreme Court
,are not invalidated and continue to remain in force.
,   Some members of the Constituent Assembly criticised the system
,of indirect election for the President as undemocratic and proposed
,"the idea of direct election. However, the Constitution makers chose"
,the indirect election due to the following reasons3 :
,1. The indirect election of the President is in harmony with the
,parliamentary system of government envisaged in the
,"Constitution. Under this system, the President is only a nominal"
,executive and the real powers are vested in the council of
,ministers headed by the prime minister. It would have been
,anomalous to have the President elected directly by the people
,and not give him any real power.
,2. The direct election of the President would have been very costly
,and time- and energy-consuming due to the vast size of the
,electorate. This is unwarranted keeping in view that he is only a
,symbolic head.
,Some members of the Constituent Assembly suggested that the
,President should be elected by the members of the two Houses of
,Parliament alone. The makers of the Constitution did not prefer this as
,"the Parliament, dominated by one political party, would have invariably"
,chosen a candidate from that party and such a President could not
,represent the states of the Indian Union. The present system makes
,the President a representative of the Union and the states equally.
,"Further, it was pointed out in the Constituent Assembly that the"
,expression ‘proportional representation’ in the case of presidential
,election is a misnomer. Proportional representation takes place where
,"two or more seats are to be filled. In case of the President, the"
,vacancy is only one. It could better be called a preferential or
,"alternative vote system. Similarly, the expression ‘single transferable"
,vote’ was also objected on the ground that no voter has a single vote;
,every voter has plural votes.
," QUALIFICATIONS, OATH AND CONDITIONS"
,
,Qualifications for Election as President
,A person to be eligible for election as President should fulfil the
,following qualifications:
,1. He should be a citizen of India.
,2. He should have completed 35 years of age.
,3. He should be qualified for election as a member of the Lok
,Sabha.
,4. He should not hold any office of profit under the Union
,government or any state government or any local authority or
,any other public authority. A sitting President or VicePresident of
,"the Union, the Governor of any state and a minister of the Union"
,or any state is not deemed to hold any office of profit and hence
,qualified as a presidential candidate.
,"Further, the nomination of a candidate for election to the office of"
,President must be subscribed by at least 50 electors as proposers and
,50 electors as seconders. Every candidate has to make a security
,"deposit of ₹15,000 in the Reserve Bank of India. The security deposit"
,is liable to be forfeited in case the candidate fails to secure one-sixth
,"of the votes polled. Before 1997, number of proposers and seconders"
,"was ten each and the amount of security deposit was ₹2,500. In 1997,"
,they were increased to discourage the non-serious candidates4 .
,
,Oath or Affirmation by the President
,"Before entering upon his office, the President has to make and"
,"subscribe to an oath or affirmation. In his oath, the President swears:"
,1. to faithfully execute the office;
,"2. to preserve, protect and defend the Constitution and the law;"
,and
,3. to devote himself to the service and well-being of the people of
,India.
,
,Table 17.1 Elections of the Presidents (1952–2017)
,Sl. Election Victorious          No. of    Main Rival       No. of
,No. Year     Candidate           Votes     Candidate        Votes
,                              secured                 secured
,(%)                     (%)
,1.   1952     Dr. Rajendra   507400    K.T. Shah     92827
,Prasad         (83.81)                 (15.3)
,2.   1957     Dr. Rajendra   459698    N.N. Das      2000 (0.4)
,Prasad         (99.35)
,3.   1962     Dr. S.        553067     Ch.Hari Ram   6341 (1.1)
,Radhakrishnan (98.24)
,4.   1967     Dr. Zakir      471244    K. Subba Rao 363971
,Hussain        (56.23)                (43.4)
,5.   1969     V.V. Giri      420077    N. Sanjeeva   405427
,(50.22)   Reddy         (48.5)
,6.   1974     Fakhruddin Ali 756587    Tridev        189186
,Ahmed          (80.18)   Chaudhuri     (19.8)
,7.   1977     N. Sanjeeva    —         Unopposed     —
,Reddy
,8.   1982     Giani Zail     754113    H.R. Khanna   282685
,Singh          (72.73)                 (27.6)
,9.   1987     R.           740148      V.Krishna     281550
,Venkataraman (72.29)     Ayyer         (27.1)
,10. 1992      Dr. Shankar  675564      George Swell 346485
,Dayal Sharma (65.86)                  (33.21)
,11. 1997      K.R.           956290    T.N. Sheshan 50431
,Narayanan      (94.97)                (5.07)
,12. 2002      Dr. A.P.J.     922844    Laxmi Sehgal 107366
,Abdul Kalam    (89.58)                (10.42)
,13. 2007      Ms. Pratibha   638116    B.S.          331306
,Patil          (65.82)   Shekhawat     (34.17)
,14. 2012      Pranab         713763    P.A. Sangma   315987
,Mukherjee      (68.12)                 (30.15)
,15. 2017      Ram Nath       702044    Meira Kumar   367314
,Kovind         (65.65)                 (34.35)
,The oath of office to the President is administered by the Chief
,"Justice of India and in his absence, the seniormost judge of the"
,Supreme Court available.
,   Any other person acting as President or discharging the functions
,of the President also undertakes the similar oath or affirmation.
,
,Conditions of President’s Office
,The Constitution lays down the following conditions of the President’s
,office:
,1. He should not be a member of either House of Parliament or a
,House of the state legislature. If any such person is elected as
,"President, he is deemed to have vacated his seat in that House"
,on the date on which he enters upon his office as President.
,2. He should not hold any other office of profit.
,"3. He is entitled, without payment of rent, to the use of his official"
,residence (the Rastrapathi Bhavan).
,"4. He is entitled to such emoluments, allowances and privileges as"
,may be determined by Parliament.
,5. His emoluments and allowances cannot be diminished during
,his term of office.
,"In 2018, the Parliament increased the salary of the President from"
,"₹1.50 lakh to ₹5 lakh per month4a. Earlier in 2008, the pension of the"
,retired President was increased from ₹3 lakh per annum to 50% of his
,"salary per month5. In addition, the former Presidents are entitled to"
,"furnished residence, phone facilities, car, medical treatment, travel"
,"facility, secretarial staff and office expenses upto ₹1,00,000 per"
,annum. The spouse of a deceased President is also entitled to a
,"family pension at the rate of 50% of pension of a retired President,"
,"furnished residence, phone facility, car, medical treatment, travel"
,"facility, secretarial staff and office expenses upto ₹20,000 per annum."
,The President is entitled to a number of privileges and immunities.
,He enjoys personal immunity from legal liability for his official acts.
,"During his term of office, he is immune from any criminal proceedings,"
,even in respect of his personal acts. He cannot be arrested or
,"imprisoned. However, after giving two months’ notice, civil"
,proceedings can be instituted against him during his term of office in
,respect of his personal acts.
," TERM, IMPEACHMENT AND VACANCY"
,
,Term of President’s Office
,The President holds office for a term of five years from the date on
,"which he enters upon his office. However, he can resign from his"
,office at any time by addressing the resignation letter to the Vice-
,"President. Further, he can also be removed from the office before"
,completion of his term by the process of impeachment.
,The President can hold office beyond his term of five years until his
,successor assumes charge. He is also eligible for re-election to that
,"office. He may be elected for any number of terms6. However, in USA,"
,a person cannot be elected to the office of the President more than
,twice.
,
,Impeachment of President
,The President can be removed from office by a process of
,"impeachment for ‘violation of the Constitution’. However, the"
,Constitution does not define the meaning of the phrase ‘violation of
,the Constitution’.
,The impeachment charges can be initiated by either House of
,Parliament. These charges should be signed by one-fourth members
,"of the House (that framed the charges), and a 14 days’ notice should"
,be given to the President. After the impeachment resolution is passed
,"by a majority of two-thirds of the total membership of that House, it is"
,"sent to the other House, which should investigate the charges. The"
,President has the right to appear and to be represented at such
,investigation. If the other House also sustains the charges and passes
,the impeachment resolution by a majority of two-thirds of the total
,"membership, then the President stands removed from his office from"
,the date on which the resolution is so passed.
,"Thus, an impeachment is a quasi-judicial procedure in the"
,"Parliament. In this context, two things should be noted: (a) the"
,nominated members of either House of Parliament can participate in
,the impeachment of the President though they do not participate in his
,election; (b) the elected members of the legislative assemblies of
,states and the Union Territories of Delhi and Puducherry do not
,participate in the impeachment of the President though they
,participate in his election.
,  No President has so far been impeached.
,
,Vacancy in the President’s Office
,A vacancy in the President’s office can occur in any of the following
,ways:
,1. On the expiry of his tenure of five years.
,2. By his resignation.
,3. On his removal by the process of impeachment.
,4. By his death7 .
,"5. Otherwise, for example, when he becomes disqualified to hold"
,office or when his election is declared void.
,When the vacancy is going to be caused by the expiration of the
,"term of the sitting President, an election to fill the vacancy must be"
,held before the expiration of the term. In case of any delay in
,"conducting the election of new President by any reason, the outgoing"
,President continues to hold office (beyond his term of five years) until
,his successor assumes charge. This is provided by the Constitution in
,"order to prevent an ‘interregnum’. In this situation, the VicePresident"
,does not get the opportunity to act as President or to discharge the
,functions of the President.
,"If the office falls vacant by resignation, removal, death or otherwise,"
,then election to fill the vacancy should be held within six months from
,the date of the occurrence of such a vacancy. The newly-elected
,President remains in office for a full term of five years from the date he
,assumes charge of his office.
,When a vacancy occurs in the office of the President due to his
,"resignation, removal, death or otherwise, the Vice-President acts as"
,"the President until a new President is elected. Further, when the sitting"
,"President is unable to discharge his functions due to absence, illness"
,"or any other cause, the Vice-President discharges his functions until"
,the President resumes his office.
,"In case the office of Vice-President is vacant, the Chief Justice of"
,"India (or if his office is also vacant, the seniormost judge of the"
,Supreme Court available) acts as the President or discharges the
,functions of the President8 .
,"When any person, ie, Vice-President, chief justice of India, or the"
,seniormost judge of the Supreme Court is acting as the President or
,"discharging the functions of the President, he enjoys all the powers"
,"and immunities of the President and is entitled to such emoluments,"
,allowances and privileges as are determined by the Parliament.
, POWERS AND FUNCTIONS OF THE PRESIDENT
,
,The powers enjoyed and the functions performed by the President can
,be studied under the following heads.
,1. Executive powers
,2. Legislative powers
,3. Financial powers
,4. Judicial powers
,5. Diplomatic powers
,6. Military powers
,7. Emergency powers
,
,Executive Powers
,The executive powers and functions of the President are:
,(a) All executive actions of the Government of India are formally
,taken in his name.
,(b) He can make rules specifying the manner in which the orders
,and other instruments made and executed in his name shall be
,authenticated.
,(c) He can make rules for more convenient transaction of business
,"of the Union government, and for allocation of the said business"
,among the ministers.
,(d) He appoints the prime minister and the other ministers. They
,hold office during his pleasure.
,(e) He appoints the attorney general of India and determines his
,remuneration. The attorney general holds office during the
,pleasure of the President.
,"(f) He appoints the comptroller and auditor general of India, the chief"
,"election commissioner and other election commissioners, the"
,"chairman and members of the Union Public Service Commission,"
,"the governors of states, the chairman and members of finance"
,"commission, and so on."
,(g) He can seek any information relating to the administration of
,"affairs of the Union, and proposals for legislation from the prime"
,minister.
,"(h) He can require the Prime Minister to submit, for consideration of"
,"the council of ministers, any matter on which a decision has been"
,"taken by a minister but, which has not been considered by the"
,council.
, (i) He can appoint a commission to investigate into the conditions of
,"SCs, STs and other backward classes."
,(j) He can appoint an inter-state council to promote Centre-state and
,inter-state cooperation.
,(k) He directly administers the union territories through
,administrators appointed by him.
,(l) He can declare any area as scheduled area and has powers with
,respect to the administration of scheduled areas and tribal areas.
,
,Legislative Powers
,"The President is an integral part of the Parliament of India, and enjoys"
,the following legislative powers.
,(a) He can summon or prorogue the Parliament and dissolve the Lok
,Sabha. He can also summon a joint sitting of both the Houses of
,"Parliament, which is presided over by the Speaker of the Lok"
,Sabha.
,(b) He can address the Parliament at the commencement of the first
,session after each general election and the first session of each
,year.
,"(c) He can send messages to the Houses of Parliament, whether"
,with respect to a bill pending in the Parliament or otherwise.
,(d) He can appoint any member of the Lok Sabha to preside over its
,proceedings when the offices of both the Speaker and the
,"Deputy Speaker fall vacant. Similarly, he can also appoint any"
,member of the Rajya Sabha to preside over its proceedings
,when the offices of both the Chairman and the Deputy Chairman
,fall vacant.
,(e) He nominates 12 members of the Rajya Sabha from amongst
,persons having special knowledge or practical experience in
,"literature, science, art and social service."
,(f) He can nominate two members to the Lok Sabha from the Anglo-
,Indian Community.
,(g) He decides on questions as to disqualifications of members of
,"the Parliament, in consultation with the Election Commission."
,(h) His prior recommendation or permission is needed to introduce
,"certain types of bills in the Parliament. For example, a bill"
,"involving expenditure from the Consolidated Fund of India, or a"
,bill for the alteration of boundaries of states or creation of a new
,state.
, (i) When a bill is sent to the President after it has been passed by
,"the Parliament, he can:"
,"(i) give his assent to the bill, or"
,"(ii) withhold his assent to the bill, or"
,(iii) return the bill (if it is not a money bill) for reconsideration of
,Parliament.
,"However, if the bill is passed again by the Parliament, with or"
,"without amendments, the President has to give his assent to the"
,bill.
,(j) When a bill passed by a state legislature is reserved by the
,"governor for consideration of the President, the President can:"
,"(i) give his assent to the bill, or"
,"(ii) withhold his assent to the bill, or"
,(iii) direct the governor to return the bill (if it is not a money bill)
,reconsideration of the state legislature. It should be noted h
,that it is not obligatory for the President to give his assent eve
,the bill is again passed by the state legislature and sent agai
,him for his consideration.
,(k) He can promulgate ordinances when the Parliament is not in
,session. These ordinances must be approved by the Parliament
,within six weeks from its reassembly. He can also withdraw an
,ordinance at any time.
,"(l) He lays the reports of the Comptroller and Auditor General, Union"
,"Public Service Commission, Finance Commission, and others,"
,before the Parliament.
,"(m) He can make regulations for the peace, progress and good"
,"government of the Andaman and Nicobar Islands, Lakshadweep,"
,"Dadra and Nagar Haveli, Daman and Diu and Ladakh. In the"
,"case of Puducherry also, the President can legislate by making"
,regulations but only when the assembly is suspended or
,dissolved.
,
,Financial Powers
,The financial powers and functions of the President are:
,(a) Money bills can be introduced in the Parliament only with his
,prior recommendation.
,(b) He causes to be laid before the Parliament the annual financial
,"statement (ie, the Union Budget)."
,(c) No demand for a grant can be made except on his
,recommendation.
, (d) He can make advances out of the contingency fund of India to
,meet any unforeseen expenditure.
,(e) He constitutes a finance commission after every five years to
,recommend the distribution of revenues between the Centre and
,the states.
,
,Judicial Powers
,The judicial powers and functions of the President are:
,(a) He appoints the Chief Justice and the judges of Supreme Court
,and high courts.
,(b) He can seek advice from the Supreme Court on any question of
,"law or fact. However, the advice tendered by the Supreme Court"
,is not binding on the President.
,"(c) He can grant pardon, reprieve, respite and remission of"
,"punishment, or suspend, remit or commute the sentence of any"
,person convicted of any offence:
,(i) In all cases where the punishment or sentence is by a c
,martial;
,(ii) In all cases where the punishment or sentence is for an offe
,against a Union law; and
,(iii) In all cases where the sentence is a sentence of death.
,
,Diplomatic Powers
,The international treaties and agreements are negotiated and
,"concluded on behalf of the President. However, they are subject to the"
,approval of the Parliament. He represents India in international forums
,"and affairs and sends and receives diplomats like ambassadors, high"
,"commissioners, and so on."
,
,Military Powers
,He is the supreme commander of the defence forces of India. In that
,"capacity, he appoints the chiefs of the Army, the Navy and the Air"
,"Force. He can declare war or conclude peace, subject to the approval"
,of the Parliament.
,
,Emergency Powers
,"In addition to the normal powers mentioned above, the Constitution"
,confers extraordinary powers on the President to deal with the
,following three types of emergencies9 :
,(a) National Emergency (Article 352);
,(b) President’s Rule (Article 356 & 365); and
,(c) Financial Emergency (Article 360)
, VETO POWER OF THE PRESIDENT
,
,A bill passed by the Parliament can become an act only if it receives
,the assent of the President. When such a bill is presented to the
,"President for his assent, he has three alternatives (under Article 111 of"
,the Constitution):
,"1. He may give his assent to the bill, or"
,"2. He may withhold his assent to the bill, or"
,3. He may return the bill (if it is not a Money bill) for reconsideration
,"of the Parliament. However, if the bill is passed again by the"
,Parliament with or without amendments and again presented to
,"the President, the President must give his assent to the bill."
,"Thus, the President has the veto power over the bills passed by the"
,"Parliament10 , that is, he can withhold his assent to the bills. The"
,object of conferring this power on the President is two-fold–(a) to
,prevent hasty and ill-considered legislation by the Parliament; and (b)
,to prevent a legislation which may be unconstitutional.
,The veto power enjoyed by the executive in modern states can be
,classified into the following four types:
,"1. Absolute veto, that is, withholding of assent to the bill passed by"
,the legislature.
,"2. Qualified veto, which can be overridden by the legislature with a"
,higher majority.
,"3. Suspensive veto, which can be overridden by the legislature with"
,an ordinary majority.
,"4. Pocket veto, that is, taking no action on the bill passed by the"
,legislature.
,"Of the above four, the President of India is vested with three–"
,"absolute veto, suspensive veto and pocket veto. There is no qualified"
,veto in the case of Indian President; it is possessed by the American
,President. The three vetos of the President of India are explained
,below:
,
,Absolute Veto
,It refers to the power of the President to withhold his assent to a bill
,passed by the Parliament. The bill then ends and does not become an
,"act. Usually, this veto is exercised in the following two cases:"
,"(a) With respect to private members’ bills (ie, bills introduced by any"
,member of Parliament who is not a minister); and
,  (b) With respect to the government bills when the cabinet resigns
,(after the passage of the bills but before the assent by the
,President) and the new cabinet advises the President not to give
,his assent to such bills.
,"In 1954, President Dr. Rajendra Prasad withheld his assent to the"
,PEPSU Appropriation Bill. The bill was passed by the Parliament
,when the President’s Rule was in operation in the state of PEPSU.
,"But, when the bill was presented to the President for his assent, the"
,President’s Rule was revoked.
,"Again in 1991, President R Venkataraman withheld his assent to"
,"the Salary, Allowances and Pension of Members of Parliament"
,(Amendment) Bill. The bill was passed by the Parliament (on the last
,day before dissolution of Lok Sabha) without obtaining the previous
,recommendation of the President.
,
,Suspensive Veto
,The President exercises this veto when he returns a bill for
,"reconsideration of the Parliament. However, if the bill is passed again"
,by the Parliament with or without amendments and again presented to
,"the President, it is obligatory for the President to give his assent to the"
,bill. This means that the presidential veto is overridden by a re-
,passage of the bill by the same ordinary majority (and not a higher
,majority as required in USA).
,"As mentioned earlier, the President does not possess this veto in"
,the case of money bills. The President can either give his assent to a
,money bill or withhold his assent to a money bill but cannot return it for
,"the reconsideration of the Parliament. Normally, the President gives"
,his assent to money bill as it is introduced in the Parliament with his
,previous permission.
,
,Pocket Veto
,"In this case, the President neither ratifies nor rejects nor returns the"
,"bill, but simply keeps the bill pending for an indefinite period. This"
,power of the President not to take any action (either positive or
,negative) on the bill is known as the pocket veto. The President can
,exercise this veto power as the Constitution does not prescribe any
,time-limit within which he has to take the decision with respect to a bill
,"presented to him for his assent. In USA, on the other hand, the"
,President has to return the bill for reconsideration within 10 days.
,"Hence, it is remarked that the pocket of the Indian President is bigger"
,than that of the American President.
,"In 1986, President Zail Singh exercised the pocket veto with"
,"respect to the Indian Post Office (Amendment) Bill. The bill, passed by"
,"the Rajiv Gandhi Government, imposed restrictions on the freedom of"
,"press and hence, was widely criticised. After three years, in 1989, the"
,"next President R Venkataraman sent the bill back for reconsideration,"
,but the new National Front Government decided to drop the bill.
,It should be noted here that the President has no veto power in
,respect of a constitutional amendment bill. The 24th Constitutional
,Amendment Act of 1971 made it obligatory for the President to give
,his assent to a constitutional amendment bill.
,
,Presidential Veto over State Legislation
,The President has veto power with respect to state legislation also. A
,bill passed by a state legislature can become an act only if it receives
,the assent of the governor or the President (in case the bill is reserved
,for the consideration of the President).
,"When a bill, passed by a state legislature, is presented to the"
,"governor for his assent, he has four alternatives (under Article 200 of"
,the Constitution):
,"1. He may give his assent to the bill, or"
,"2. He may withhold his assent to the bill, or"
,3. He may return the bill (if it is not a money bill) for reconsideration
,"of the state legislature, or"
,4. He may reserve the bill for the consideration of the President.
,
,Table 17.2 Veto Power of the President At a Glance
,Central Legislation                   State Legislation
,With Regard to Ordinary Bills
,1. Can be ratified                     1. Can be ratified
,2. Can be rejected                     2. Can be rejected
,3. Can be returned                     3. Can be returned
,With Regard to Money Bills
,1. Can be ratified                     1. Can be ratified
,2. Can be rejected (but cannot         2. Can be rejected (but cannot
,be returned)                           be returned)
,With Regard to Constitutional Amendment Bills
,"Can only be ratified (that is,        Constitutional amendment bills"
,cannot be rejected or returned)       cannot be introduced in the state
,legislature.
,
,When a bill is reserved by the governor for the consideration of the
,"President, the President has three alternatives (Under Article 201 of"
,the Constitution):
,"1. He may give his assent to the bill, or"
,"2. He may withhold his assent to the bill, or"
,3. He may direct the governor to return the bill (if it is not a money
,bill) for the reconsideration of the state legislature. If the bill is
,passed again by the state legislature with or without
,amendments and presented again to the President for his
,"assent, the President is not bound to give his assent to the bill."
,This means that the state legislature cannot override the veto
,"power of the President. Further, the Constitution has not"
,prescribed any time limit within which the President has to take
,decision with regard to a bill reserved by the governor for his
,"consideration. Hence, the President can exercise pocket veto in"
,respect of state legislation also.
,Table 17.2 summarises the discussion on the veto power of the
,President with regard to Central as well as state legislation.
, ORDINANCE-MAKING POWER OF THE PRESIDENT
,
,Article 123 of the Constitution empowers the President to promulgate
,ordinances during the recess of Parliament. These ordinances have
,"the same force and effect as an act of Parliament, but are in the"
,nature of temporary laws.
,The ordinance-making power is the most important legislative
,power of the President. It has been vested in him to deal with
,"unforeseen or urgent matters. But, the exercises of this power is"
,subject to the following four limitations:
,1. He can promulgate an ordinance only when both the Houses of
,Parliament are not in session or when either of the two Houses of
,Parliament is not in session. An ordinance can also be issued when
,only one House is in session because a law can be passed by both
,the Houses and not by one House alone. An ordinance made when
,"both the Houses are in session is void. Thus, the power of the"
,President to legislate by ordinance is not a parallel power of
,legislation.
,2. He can make an ordinance only when he is satisfied that the
,circumstances exist that render it necessary for him to take immediate
,"action. In Cooper case11 , (1970), the Supreme Court held that the"
,President’s satisfaction can be questioned in a court on the ground of
,malafide. This means that the decision of the President to issue an
,ordinance can be questioned in a court on the ground that the
,President has prorogued one House or both Houses of Parliament
,deliberately with a view to promulgate an ordinance on a controversial
,"subject, so as to bypass the parliamentary decision and thereby"
,circumventing the authority of the Parliament. The 38th Constitutional
,Amendment Act of 1975 made the President’s satisfaction final and
,"conclusive and beyond judicial review. But, this provision was deleted"
,"by the 44th Constitutional Amendment Act of 1978. Thus, the"
,President’s satisfaction is justiciable on the ground of malafide.
,3. His ordinance-making power is coextensive as regards all
,"matters except duration, with the law-making powers of the"
,Parliament. This has two implications:
,(a) An ordinance can be issued only on those subjects on which the
,Parliament can make laws.
,(b) An ordinance is subject to the same constitutional limitation as
,"an act of Parliament. Hence, an ordinance cannot abridge or take"
,     away any of the fundamental rights12 .
,4. Every ordinance issued by the President during the recess of
,Parliament must be laid before both the Houses of Parliament when it
,"reassembles. If the ordinance is approved by both the Houses, it"
,"becomes an act. If Parliament takes no action at all, the ordinance"
,ceases to operate on the expiry of six weeks from the reassembly of
,Parliament. The ordinance may also cease to operate even earlier
,"than the prescribed six weeks, if both the Houses of Parliament pass"
,resolutions disapproving it. If the Houses of Parliament are summoned
,"to reassemble on different dates, the period of six weeks is calculated"
,from the later of those dates. This means that the maximum life of an
,"ordinance can be six months and six weeks, in case of non-approval"
,by the Parliament (six months being the maximum gap between the
,two sessions of Parliament). If an ordinance is allowed to lapse
,"without being placed before Parliament, then the acts done and"
,"completed under it, before it ceases to operate, remain fully valid and"
,effective.
,The President can also withdraw an ordinance at any time.
,"However, his power of ordinance-making is not a discretionary power,"
,and he can promulgate or withdraw an ordinance only on the advice of
,the council of ministers headed by the prime minister.
,"An ordinance like any other legislation, can be retrospective, that is,"
,it may come into force from a back date. It may modify or repeal any
,act of Parliament or another ordinance. It can alter or amend a tax law
,"also. However, it cannot be issued to amend the Constitution."
,The ordinance-making power of the President in India is rather
,unusual and not found in most of the democratic Constitutions of the
,"world including that of USA, and UK. In justification of the ordinance-"
,"making power of the President, Dr. B.R. Ambedkar said in the"
,Constituent Assembly that the mechanism of issuing an ordinance has
,been devised in order to enable the Executive to deal with a situation
,that may suddenly and immediately arise when the Parliament is not
,in session13. It must be clarified here that the ordinance-making power
,of the President has no necessary connection with the national
,emergency envisaged in Article 352. The President can issue an
,ordinance even when there is no war or external aggression or armed
,rebellion.
,The rules of Lok Sabha require that whenever a bill seeking to
,"replace an ordinance is introduced in the House, a statement"
,explaining the circumstances that had necessitated immediate
,legislation by ordinance should also be placed before the House.
,"So far, no case has gone to the Supreme Court regarding"
,promulgation of ordinance by the President.
,"But, the judgement of the Supreme Court in the D.C. Wadhwa"
,"case14 (1987) is highly relevant here. In that case, the court pointed"
,out that between 1967–1981 the Governor of Bihar promulgated 256
,ordinances and all these were kept in force for periods ranging from
,one to fourteen years by promulgation from time to time. The court
,ruled that successive repromulgation of ordinances with the same text
,without any attempt to get the bills passed by the assembly would
,amount to violation of the Constitution and the ordinance so
,repromulgated is liable to be struck down. It held that the exceptional
,power of law-making through ordinance cannot be used as a
,substitute for the legislative power of the state legislature.
, PARDONING POWER OF THE PRESIDENT
,
,Article 72 of the Constitution empowers the President to grant pardons
,to persons who have been tried and convicted of any offence in all
,cases where the:
,1. Punishment or sentence is for an offence against a Union Law;
,2. Punishment or sentence is by a court martial (military court); and
,3. Sentence is a sentence of death.
,The pardoning power of the President is independent of the
,"Judiciary; it is an executive power. But, the President while exercising"
,"this power, does not sit as a court of appeal. The object of conferring"
,this power on the President is two-fold: (a) to keep the door open for
,"correcting any judicial errors in the operation of law; and, (b) to afford"
,"relief from a sentence, which the President regards as unduly harsh."
,The pardoning power of the President includes the following:
,
,1. Pardon
,It removes both the sentence and the conviction and completely
,"absolves the convict from all sentences, punishments and"
,disqualifications.
,
,2. Commutation
,It denotes the substitution of one form of punishment for a lighter form.
,"For example, a death sentence may be commuted to rigorous"
,"imprisonment, which in turn may be commuted to a simple"
,imprisonment.
,
,3. Remission
,It implies reducing the period of sentence without changing its
,"character. For example, a sentence of rigorous imprisonment for two"
,years may be remitted to rigorous imprisonment for one year.
,
,4. Respite
,It denotes awarding a lesser sentence in place of one originally
,"awarded due to some special fact, such as the physical disability of a"
,convict or the pregnancy of a woman offender.
,
,5. Reprieve
,It implies a stay of the execution of a sentence (especially that of
,death) for a temporary period. Its purpose is to enable the convict to
,have time to seek pardon or commutation from the President.
,"Under Article 161 of the Constitution, the governor of a state also"
,"possesses the pardoning power. Hence, the governor can also grant"
,"pardons, reprieves, respites and remissions of punishment or"
,"suspend, remit and commute the sentence of any person convicted of"
,"any offence against a state law. But, the pardoning power of the"
,governor differs from that of the President in following two respects:
,1. The President can pardon sentences inflicted by court martial
,(military courts) while the governor cannot.
,2. The President can pardon death sentence while governor
,"cannot. Even if a state law prescribes death sentence, the power"
,to grant pardon lies with the President and not the governor.
,"However, the governor can suspend, remit or commute a death"
,"sentence. In other words, both the governor and the President"
,"have concurrent power in respect of suspension, remission and"
,commutation of death sentence.
,The Supreme Court examined the pardoning power of the
,President under different cases and laid down the following principles:
,1. The petitioner for mercy has no right to an oral hearing by the
,President.
,2. The President can examine the evidence afresh and take a view
,different from the view taken by the court.
,3. The power is to be exercised by the President on the advice of
,the union cabinet.
,4. The President is not bound to give reasons for his order.
,5. The President can afford relief not only from a sentence that he
,regards as unduly harsh but also from an evident mistake.
,6. There is no need for the Supreme Court to lay down specific
,guidelines for the exercise of power by the President.
,7. The exercise of power by the President is not subject to judicial
,"review except where the presidential decision is arbitrary,"
,"irrational, mala fide or discriminatory."
,8. Where the earlier petition for mercy has been rejected by the
,"President, stay cannot be obtained by filing another petition."
, CONSTITUTIONAL POSITION OF THE PRESIDENT
,
,The Constitution of India has provided for a parliamentary form of
,"government. Consequently, the President has been made only a"
,nominal executive; the real executive being the council of ministers
,"headed by the prime minister. In other words, the President has to"
,exercise his powers and functions with the aid and advise of the
,council of ministers headed by the prime minister.
,Dr. B.R. Ambedkar summed up the true position of the President in
,the following way15 :
,"“In the Indian Constitution, there is placed at the head of the Indian"
,Union a functionary who is called the President of the Union. The title
,of the functionary reminds of the President of the United States. But
,"beyond the identity of names, there is nothing in common between the"
,form of government prevalent in America and the form of government
,adopted under the Indian Constitution. The American form of
,government is called the presidential system of government and what
,the Indian Constitution adopted is the Parliamentary system. Under
,"the presidential system of America, the President is the Chief head of"
,the Executive and administration is vested in him. Under the Indian
,"Constitution, the President occupies the same position as the King"
,under the English Constitution. He is the head of the State but not of
,the Executive. He represents the nation but does not rule the nation.
,He is the symbol of the nation. His place in administration is that of a
,ceremonial device or a seal by which the nation’s decisions are made
,known. He is generally bound by the advice of his ministers. He can
,do nothing contrary to their advice nor can he do anything without
,their advice. The President of the United States can dismiss any
,secretary at any time. The President of the Indian Union has no power
,"to do so, so long as his ministers command a majority in Parliament”."
,"In estimating the constitutional position of the President, particular"
,"reference has to be made to the provisions of Articles 53, 74 and 75."
,These are:
,1. The executive power of the Union shall be vested in President
,and shall be exercised by him either directly or through officers
,subordinate to him in accordance with this Constitution (Article
,53).
,2. There shall be a council of ministers with the Prime Minister at
,"the head to aid and advise the President who ‘shall’, in the"
,"         exercise of his functions, act in accordance with such advice"
,(Article 74).
,3. The council of ministers shall be collectively responsible to the
,Lok Sabha (Article 75). This provision is the foundation of the
,parliamentary system of government.
,The 42nd Constitutional Amendment Act of 1976 (enacted by the
,Indira Gandhi Government) made the President bound by the advice
,of the council of ministers headed by the prime minister16. The 44th
,Constitutional Amendment Act of 1978 (enacted by the Janata Party
,Government headed by Morarji Desai) authorised the President to
,require the council of ministers to reconsider such advice either
,"generally or otherwise. However, he ‘shall’ act in accordance with the"
,"advice tendered after such reconsideration. In other words, the"
,President may return a matter once for reconsideration of his
,"ministers, but the reconsidered advice shall be binding."
,"In October 1997, the cabinet recommended President K.R."
,Narayanan to impose President’s Rule (under Article 356) in Uttar
,Pradesh. The President returned the matter for the reconsideration of
,"the cabinet, which then decided not to move ahead in the matter."
,"Hence, the BJP-led government under Kalyan Singh was saved."
,"Again in September 1998, the President KR Narayanan returned a"
,recommendation of the cabinet that sought the imposition of the
,"President’s Rule in Bihar. After a couple of months, the cabinet re-"
,advised the same. It was only then that the President’s Rule was
,"imposed in Bihar, in February 1999."
,"Though the President has no constitutional discretion, he has some"
,"situational discretion. In other words, the President can act on his"
,"discretion (that is, without the advice of the ministers) under the"
,following situations:
,(i) Appointment of Prime Minister when no party has a clear majority
,in the Lok Sabha or when the Prime Minister in office dies
,suddenly and there is no obvious successor.
,(ii) Dismissal of the council of ministers when it cannot prove the
,confidence of the Lok Sabha.
,(iii) Dissolution of the Lok Sabha if the council of ministers has lost its
,majority.
,
,Table 17.3 Articles Related to President at a Glance
,Article No.     Subject-matter
,52.    The President of India
,53.    Executive power of the Union
,54.    Election of President
,55.    Manner of election of President
,56.    Term of office of President
,57.    Eligibility for re-election
,58.    Qualifications for election as President
,59.    Conditions of President’s office
,60.    Oath or affirmation by the President
,61.    Procedure for impeachment of the President
,62.    Time of holding election to fill vacancy in the office
,of President
,65.    Vice-President to act as President or to discharge
,his functions
,71.    Matters relating to the election of President
,"72.    Power of President to grant pardons etc., and to"
,"suspend, remit or commute sentences in certain"
,cases
,74.    Council of ministers to aid and advise the
,President
,"75.    Other provisions as to ministers like appointment,"
,"term, salaries, etc."
,76.    Attorney-General of India
,77.    Conduct of business of the Government of India
,78.    Duties of Prime Minister in respect to furnishing of
,"information to the President, etc."
,"85.    Sessions of Parliament, prorogation and"
,dissolution
,111.   Assent to bills passed by the Parliament
,112.   Union Budget (annual financial statement)
,123.   Power of President to promulgate ordinances
,143.   Power of President to consult Supreme Court
,NOTES AND REFERENCES
,1. This provision was added by the 70th Constitutional
,"Amendment Act of 1992 with effect from June 1, 1995."
,2. According to the 84th Constitutional Amendment Act of
,"2001, the expression ‘population’ means the population as"
,"ascertained at the 1971 census, until the relevant figures for"
,the first census taken after 2026 have been published.
,"3. Constituent Assembly Debates, Volume-IV,p. 733–736."
,"4. The presidential and vice-presidential Elections Act of 1952,"
,as amended in 1997.
,"4a. Vide the Finance Act, 2018, with effect from 1st January,"
,2016. This Act amended the President’s Emoluments and
,"Pension Act, 1951."
,5. The President’s Emoluments and Pension Amendment Act
,of 2008.
,6. No person except Dr. Rajendra Prasad has occupied the
,office for two terms.
,"7. So far two Presidents, Dr. Zakir Hussain and Fakhruddin Ali"
,"Ahmed, have died during their term of office."
,"8. For example, when President Dr. Zakir Hussain died in May,"
,"1969, the then Vice-President, V.V. Giri was acting as the"
,President. Soon after V.V. Giri resigned to contest the
,"election of the President. Then the Chief Justice of India, M."
,Hidayatullah worked as the officiating President from 20
,"July, 1969 to 24 August, 1969."
,"9. For details in this regard, see Chapter 16."
,10. ‘Veto’ is a Latin word that connotes ‘forbid’.
,"11. Cooper v. Union of India, (1970)."
,12. The definition of ‘law’ contained in Article 13 expressly
,"includes ordinances. See, Chapter 7."
,"13. Constituent Assembly Debates, Volume VIII, p. 213."
,"14. D.C. Wadhwa v. State of Bihar, (1987)."
,"15. Constituent Assembly Debates, Volume VII, p. 32–34."
,"16. In the original Constitution, there was no such specific"
,provision in Article 74.
, 18      Vice-President
,
,
,
,
,T
,he Vice-President occupies the second highest office in the
,country. He is accorded a rank next to the President in the
,official warrant of precedence. This office is modelled on
,the lines of the American Vice-President.
, ELECTION
,
,"The Vice-President, like the president, is elected not directly by"
,the people but by the method of indirect election. He is elected by
,the members of an electoral college consisting of the members of
,"both Houses of Parliament.1 Thus, this electoral college is"
,different from the electoral college for the election of the President
,in the following two respects:
,1. It consists of both elected and nominated members of the
,"Parliament (in the case of president, only elected members)."
,2. It does not include the members of the state legislative
,"assemblies (in the case of President, the elected members"
,of the state legislative assemblies are included). Explaining
,"the reason for this difference, Dr. B.R. Ambedkar observed:2"
,“The President is the head of the State and his power extends
,both to the administration by the Centre as well as to the states.
,"Consequently, it is necessary that in his election, not only"
,"members of Parliament should play their part, but the members of"
,"the state legislatures should have a voice. But, when we come to"
,"the Vice-President, his normal functions are to preside over the"
,"council of states. It is only on a rare occasion, and that too for a"
,"temporary period, that he may be called upon to assume the"
,"duties of the president. That being so, it does not seem necessary"
,that the members of the state legislatures should also be invited to
,take part in the election of the Vice-President”.
,"But, the manner of election is same in both the cases. Thus,"
,"the Vice-President’s election, like that of the President’s election,"
,is held in accordance with the system of proportional
,representation by means of the single transferable vote and the
,voting is by secret ballot.3
,All doubts and disputes in connection with election of the Vice-
,President are inquired into and decided by the Supreme Court
,whose decision is final. The election of a person as Vice-President
,cannot be challenged on the ground that the electoral college was
,"incomplete (i.e., existence of any vacancy among the members of"
,electoral college). If the election of a person as VicePresident is
,"declared void by the Supreme Court, acts done by him before the"
,date of such declaration of the Supreme Court are not invalidated
,"(i.e., they continue to remain in force)."
," QUALIFICATIONS, OATH AND CONDITIONS"
,
,Qualifications
,"To be eligible for election as Vice-President, a person should fulfil"
,the following qualifications:
,1. He should be a citizen of India.
,2. He should have completed 35 years of age.
,3. He should be qualified for election as a member of the Rajya
,Sabha.
,4. He should not hold any office of profit under the Union
,government or any state government or any local authority
,or any other public authority.
,
,Table 18.1 Elections of the Vice-Presidents (1952–2017)
,Sl. Election Victorious          No. of Runner-up No. of
,No.   Year Candidate             Votes Candidate Votes
,secured           secured
,1.    1952    Dr. S.               –     Unopposed          –
,Radhakrishnan
,2.    1957    Dr. S.               –     Unopposed          –
,Radhakrishnan
,3.    1962    Dr. Zakir           568    N. Samant         14
,Hussain                    Singh
,4.    1967    V.V. Giri           486    Prof. Habib      192
,5.    1969    G.S. Pathak         400    H.V.             156
,Kamath
,6.    1974    B.D. Jatti          521    N.E. Horo        141
,7.    1979    M.                   –     unopposed          –
,Hidayatullah
,8.    1984    R.                  508    B.C.             207
,Venkataraman               Kambley
,9.    1987    Dr. Shankar          –     unopposed          –
,                Dayal Sharma
,10.    1992    K.R.                700    Kaka              01
,Narayanan                  Joginder
,Singh
,11.    1997    Krishna Kant        441    Surjeet          273
,Singh
,Barnala
,12.    2002    B.S.                454    Shushil          305
,Shekhawat                  Kumar
,Shinde
,13.    2007    Mohd. Hamid         455    Najma            222
,Ansari                     Heptullah
,14.    2012    Mohd. Hamid         490    Jaswant          238
,Ansari                     Singh
,15.    2017    Venkaiah            516    Gopal            244
,Naidu                      Krishna
,Gandhi
,"But, a sitting President or Vice-President of the Union, the"
,governor of any state and a minister for the Union or any state is
,not deemed to hold any office of profit and hence qualified for
,being a candidate for Vice-President.
,"Further, the nomination of a candidate for election to the office"
,of Vice-President must be subscribed by at least 20 electors as
,proposers and 20 electors as seconders. Every candidate has to
,"make a security deposit of ₹15,000 in the Reserve Bank of India.4"
,
,Oath or Affirmation
,"Before entering upon his office, the VicePresident has to make"
,"and subscribe to an oath or affirmation. In his oath, the"
,VicePresident swears:
,1. to bear true faith and allegiance to the Constitution of India;
,and
,2. to faithfully discharge the duties of his office.
,The oath of office to the Vice-President is administered by the
,President or some person appointed in that behalf by him.
,Conditions of Office
,The Constitution lays down the following two conditions of the
,Vice-President’s office:
,1. He should not be a member of either House of Parliament or
,a House of the state legislature. If any such person is
,"elected Vice-President, he is deemed to have vacated his"
,seat in that House on the date on which he enters upon his
,office as Vice-President.
,2. He should not hold any other office of profit.
, TERM AND VACANCY
,
,Term of Office
,The Vice-President holds office for a term of five years from the
,"date on which he enters upon his office. However, he can resign"
,from his office at any time by addressing the resignation letter to
,the President. He can also be removed from the office before
,completion of his term. A formal impeachment is not required for
,his removal. He can be removed by a resolution passed by a
,majority of all the then members of the Rajya Sabha and agreed
,to by the Lok Sabha. This means that this resolution should be
,passed in the Rajya Sabha by an effective majority and in the Lok
,Sabha by a simple majority. It must be noted here that the
,effective majority in India is only a type of special majority and not
,"a separate one. Further, this resolution can be introduced only in"
,"the Rajya Sabha and not in the Lok Sabha. But, no such"
,resolution can be moved unless at least 14 days’ advance notice
,"has been given. Notably, no ground has been mentioned in the"
,Constitution for his removal.
,The Vice-President can hold office beyond his term of five
,years until his successor assumes charge. He is also eligible for
,reelection to that office. He may be elected for any number of
,terms.5
,
,Vacancy in Office
,A vacancy in the Vice-President’s office can occur in any of the
,following ways:
,1. On the expiry of his tenure of five years.
,2. By his resignation.
,3. On his removal.
,4. By his death.6
,"5. Otherwise, for example, when he becomes disqualified to"
,hold office or when his election is declared void.
,When the vacancy is going to be caused by the expiration of
,"the term of the sitting vicepresident, an election to fill the vacancy"
,must be held before the expiration of the term.
,"If the office falls vacant by resignation, removal, death or"
,"otherwise, then election to fill the vacancy should be held as soon"
,as possible after the occurrence of the vacancy. The newly-
,elected vice-president remains in office for a full term of five years
,from the date he assumes charge of his office.
, POWERS AND FUNCTIONS
,
,The functions of Vice-President are two-fold:
,1. He acts as the ex-officio Chairman of Rajya Sabha. In this
,"capacity, his powers and functions are similar to those of the"
,"Speaker of Lok Sabha. In this respect, he resembles the"
,American vicepresident who also acts as the Chairman of
,the Senate–the Upper House of the American legislature.
,2. He acts as President when a vacancy occurs in the office of
,"the President due to his resignation, impeachment, death or"
,otherwise.7 He can act as President only for a maximum
,period of six months within which a new President has to be
,"elected. Further, when the sitting President is unable to"
,"discharge his functions due to absence, illness or any other"
,"cause, the Vice-President discharges his functions until the"
,President resumes his office.8
,While acting as President or discharging the functions of
,"President, the Vice-President does not perform the duties of the"
,"office of the chairman of Rajya Sabha. During this period, those"
,duties are performed by the Deputy Chairman of Rajya Sabha.
,The Constitution has not fixed any emoluments for the Vice-
,President in that capacity. He draws his regular salary in his
,"capacity as the ex-officio Chairman of the Rajya Sabha. In 2018,"
,the Parliament increased the salary of the Chairman of the Rajya
,"Sabha from ₹1.25 lakh to ₹4 lakh per month9. Earlier in 2008, the"
,"pension of the retired Vice-President was increased from ₹20,000"
,"per month to 50% of his salary per month10. In addition, he is"
,"entitled to daily allowance, free furnished residence, medical,"
,travel and other facilities.
,During any period when the Vice-President acts as President or
,"discharges the functions of the President, he is not entitled to the"
,"salary or allowance payable to the Chairman of Rajya Sabha, but"
,the salary and allowance of the President.
, INDIAN AND AMERICAN VICEPRESIDENTS
,COMPARED
,
,Though the office of the Indian VicePresident is modelled on the
,"lines of the American Vice-President, there is a difference. The"
,American Vice-President succeeds to the presidency when it falls
,"vacant, and remains President for the unexpired term of his"
,"predecessor. The Indian Vice-President, on the other hand, does"
,not assume the office of the President when it falls vacant for the
,unexpired term. He merely serves as an acting President until the
,new President assumes charge.
,From the above it is clear that the Constitution has not
,assigned any significant function to the Vice-President in that
,"capacity. Hence, some scholars call him ‘His Superfluous"
,Highness’. This office was created with a view to maintain the
,political continuity of the Indian State.
,
,Table 18.2 Articles Related to Vice-President at a Glance
,Article No.    Subject-matter
,63.        The Vice-President of India
,64.        The Vice-President to be ex-officio Chairman of
,the Council of States
,65.        The Vice-President to act as President or to
,discharge his functions during casual vacancies
,"in the office, or during the absence, of"
,President
,66.        Election of Vice-President
,67.        Term of office of Vice-President
,68.        Time of holding election to fill vacancy in the
,office of Vice-President and the term of office of
,person elected to fill casual vacancy
,69.        Oath or affirmation by the Vice-President
,70.        Discharge of President’s functions in other
,contingencies
,"    71.        Matters relating to, or connected with, the"
,election of Vice-President
,
,
,NOTES AND REFERENCES
,1. The original Constitution provided that the Vice-
,President would be elected by the two Houses of
,Parliament assembled at a joint meeting. This
,cumbersome procedure was done away by the 11th
,Constitutional Amendment Act of 1961.
,"2. Constituent Assembly Debates, Volume VII, p. 1001."
,3. This method is discussed in Chapter 17.
,"4. Presidential and Vice-Presidential Elections Act, 1952"
,as amended in 1997.
,5. Dr. S. Radhakrishnan was elected for a second term.
,6. Krishna Kant was the first Vice-President to die in office.
,"7. When two Presidents, Dr. Zakir Hussain and Fakruddin"
,"Ali Ahmed, died in office, the then respective Vice-"
,"Presidents, V.V. Giri and B.D. Jatti acted as President."
,8. The Vice-President Dr. S. Radhakrishnan discharged
,the functions of the President in June 1960 when the
,then President Dr. Rajendra Prasad was on a 15-day
,tour to the USSR and again in July 1961 when he (Dr.
,Rajendra Prasad) was very ill.
,"9. Vide the Finance Act, 2018, with effect from 1st January,"
,2016. This Act amended the Salaries and Allowances of
,"Officers of Parliament Act, 1953."
,"10. The Vice-President’s Pension (Amendment) Act, 2008."
, 19      Prime Minister
,
,
,
,
,I
,n the scheme of parliamentary system of government provided
,"by the constitution, the President is the nominal executive"
,authority (de jure executive) and Prime Minister is the real
,"executive authority (de facto executive). In other words, president"
,is the head of the State while Prime Minister is the head of the
,government.
, APPOINTMENT OF THE PRIME MINISTER
,
,The Constitution does not contain any specific procedure for the
,selection and appointment of the Prime Minister. Article 75 says
,only that the Prime Minister shall be appointed by the president.
,"However, this does not imply that the president is free to appoint"
,any one as the Prime Minister. In accordance with the conventions
,"of the parliamentary system of government, the President has to"
,appoint the leader of the majority party in the Lok Sabha as the
,"Prime Minister. But, when no party has a clear majority in the Lok"
,"Sabha, then the President may exercise his personal discretion in"
,the selection and appointment of the Prime Minister. In such a
,"situation, the President usually appoints the leader of the largest"
,party or coalition in the Lok Sabha as the Prime Minister and asks
,him to seek a vote of confidence in the House within a month.
,"This discretion was exercised by the President, for the first time in"
,"1979, when Neelam Sanjiva Reddy (the then President) appointed"
,Charan Singh (the coalition leader) as the Prime Minister after the
,fall of the Janata Party government headed by Morarji Desai.
,There is also one more situation when the president may have
,to exercise his individual judgement in the selection and
,"appointment of the Prime Minister, that is, when the Prime"
,Minister in office dies suddenly and there is no obvious successor.
,This is what happened when Indira Gandhi was assassinated in
,1984. The then President Zail Singh appointed Rajiv Gandhi as
,the Prime Minister by ignoring the precedent of appointing a
,"caretaker Prime Minister.1 Later on, the Congress parliamentary"
,"party unanimously elected him as its leader. However, if, on the"
,"death of an incumbent Prime Minister, the ruling party elects a"
,"new leader, the President has no choice but to appoint him as"
,Prime Minister.
,"In 1980, the Delhi High Court held that the Constitution does"
,not require that a person must prove his majority in the Lok Sabha
,before he is appointed as the Prime Minister. The President may
,first appoint him the Prime Minister and then ask him to prove his
,majority in the Lok Sabha within a reasonable period. For
,"example, Charan Singh (1979), V.P. Singh (1989), Chandrasekhar"
,"(1990), P.V. Narasimha Rao (1991), A.B. Vajyapee (1996), Deve"
,"Gowda (1996), I.K. Gujral (1997) and again A.B. Vajpayee (1998)"
,were appointed as Prime Ministers in this way.
,"In 1997, the Supreme Court held that a person who is not a"
,member of either House of Parliament can be appointed as Prime
,"Minister for six months, within which, he should become a"
,"member of either House of Parliament; otherwise, he ceases to be"
,the Prime Minister.
,"Constitutionally, the Prime Minister may be a member of any of"
,"the two Houses of parliament. For example, three Prime Ministers,"
,"Indira Gandhi (1966), Deve Gowda (1996) and Manmohan Singh"
,"(2004), were members of the Rajya Sabha. In Britain, on the other"
,"hand, the Prime Minister should definitely be a member of the"
,Lower House (House of Commons).
," OATH, TERM AND SALARY"
,
,"Before the Prime Minister enters upon his office, the president"
,administers to him the oaths of office and secrecy.2 In his oath of
,"office, the Prime Minister swears:"
,"1. to bear true faith and allegiance to the Constitution of India,"
,"2. to uphold the sovereignty and integrity of India,"
,3. to faithfully and conscientiously discharge the duties of his
,"office, and"
,4. to do right to all manner of people in accordance with the
,"Constitution and the law, without fear or favour, affection or"
,ill will.
,"In his oath of secrecy, the Prime Minister swears that he will not"
,directly or indirectly communicate or reveal to any person(s) any
,matter that is brought under his consideration or becomes known
,to him as a Union Minister except as may be required for the due
,discharge of his duties as such minister.
,The term of the Prime Minister is not fixed and he holds office
,"during the pleasure of the president. However, this does not mean"
,that the president can dismiss the Prime Minister at any time. So
,long as the Prime Minister enjoys the majority support in the Lok
,"Sabha, he cannot be dismissed by the President. However, if he"
,"loses the confidence of the Lok Sabha, he must resign or the"
,President can dismiss him.3
,The salary and allowances of the Prime Minister are
,determined by the Parliament from time to time. He gets the
,salary and allowances that are payable to a member of
,"Parliament. Additionally, he gets a sumptuary allowance, free"
,"accommodation, travelling allowance, medical facilities, etc. In"
,"2001, the Parliament increased his sumptuary allowance from"
,"₹1,500 to ₹3,000 per month."
, POWERS AND FUNCTIONS OF THE PRIME
,MINISTER
,
,The powers and functions of Prime Minister can be studied under
,the following heads:
,
,In Relation to Council of Ministers
,The Prime Minister enjoys the following powers as head of the
,Union council of ministers:
,1. He recommends persons who can be appointed as ministers
,by the president. The President can appoint only those
,persons as ministers who are recommended by the Prime
,Minister.
,2. He allocates and reshuffles various portfolios among the
,ministers.
,3. He can ask a minister to resign or advise the President to
,dismiss him in case of difference of opinion.
,4. He presides over the meeting of council of ministers and
,influences its decisions.
,"5. He guides, directs, controls, and coordinates the activities of"
,all the ministers.
,6. He can bring about the collapse of the council of ministers
,by resigning from office.
,Since the Prime Minister stands at the head of the council of
,"ministers, the other ministers cannot function when the Prime"
,"Minister resigns or dies. In other words, the resignation or death of"
,an incumbent Prime Minister automatically dissolves the council of
,ministers and thereby generates a vacuum. The resignation or
,"death of any other minister, on the other hand, merely creates a"
,vacancy which the Prime Minister may or may not like to fill.
,
,In Relation to the President
,The Prime Minister enjoys the following powers in relation to the
,President:
,1. He is the principal channel of communication between the
,President and the council of ministers.4 It is the duty of the
,     prime minister:
,(a) to communicate to the President all decisions of the
,council of ministers relating to the administration of the
,affairs of the Union and proposals for legislation;
,(b) to furnish such information relating to the administration
,of the affairs of the Union and proposals for legislation as
,the President may call for; and
,"(c) if the President so requires, to submit for the"
,consideration of the council of ministers any matter on
,which a decision has been taken by a minister but which
,has not been considered by the council.
,2. He advises the president with regard to the appointment of
,"important officials like attorney general of India, Comptroller"
,"and Auditor General of India, chairman and members of the"
,"UPSC, election commissioners, chairman and members of"
,the finance commission and so on.
,
,In Relation to Parliament
,The Prime Minister is the leader of the Lower House. In this
,"capacity, he enjoys the following powers:"
,1. He advises the President with regard to summoning and
,proroguing of the sessions of the Parliament.
,2. He can recommend dissolution of the Lok Sabha to
,President at any time.
,3. He announces government policies on the floor of the
,House.
,
,Other Powers & Functions
,"In addition to the above-mentioned three major roles, the Prime"
,Minister has various other roles. These are:
,1. He is the chairman of the NITI Ayog (which succeded the
,"planning commission), National Integration Council,"
,"InterState Council, National Water Resources Council and"
,some other bodies.
,2. He plays a significant role in shaping the foreign policy of the
,country.
,3. He is the chief spokesman of the Union government.
,   4. He is the crisis manager-in-chief at the political level during
,emergencies.
,"5. As a leader of the nation, he meets various sections of"
,people in different states and receives memoranda from
,"them regarding their problems, and so on."
,6. He is leader of the party in power.
,7. He is political head of the services.
,"Thus, the Prime Minister plays a very significant and highly"
,crucial role in the politico-administrative system of the country. Dr.
,"B.R. Ambedkar stated, ‘If any functionary under our constitution is"
,"to be compared with the US president, he is the Prime Minister"
,and not the president of the Union’.
, ROLE DESCRIPTIONS
,
,The various comments made by the eminent political scientists
,and constitutional experts on the role of Prime Minister in Britain
,holds good in the Indian context also. These are mentioned
,below:
,
,Lord Morely
,He described Prime Minister as ‘primus inter pares’ (first among
,"equals) and ‘key stone of the cabinet arch’. He said, “The head of"
,"the cabinet is ‘primus inter pares’, and occupied a position which"
,"so long as it lasts, is one of exceptional and peculiar authority”."
,
,Herbert Marrison
,"“As the head of the Government, he (prime minister) is ‘primus"
,"inter pares’. But, it is today for too modest an appreciation of the"
,Prime Minister’s position”.
,
,Sir William Vernor Harcourt
,He described Prime Minister as ‘inter stellas luna minores’ (a
,moon among lesser stars).
,
,Jennings
,"“He is, rather, a sun around which planets revolve. He is the key-"
,stone of the constitution. All roads in the constitution lead to the
,Prime Minister.”
,
,H.J. Laski
,"On the relationship between the Prime Minister and the cabinet,"
,"he said that the Prime Minister “is central to its formation, central"
,"to its life, and central to its death”. He described him as “the pivot"
,around which the entire governmental machinery revolves.”
,
,H.R.G. Greaves
,“The Government is the master of the country and he (Prime
,Minister) is the master of the Government.”
,
,Munro
,He called Prime Minister as “the captain of the ship of the state”.
,
,Ramsay Muir
,He described Prime Minister as “the steersman of steering wheel
,of the ship of the state.”
,The role of the Prime Minister in the British parliamentary
,government is so significant and crucial that observers like to call
,"it a ‘Prime Ministerial government.’ Thus, R.H. Crossman says,"
,‘The post-war epoch has been the final transformation of cabinet
,"government into Prime Ministerial government.’ Similarly,"
,"Humphrey Berkely points out, ‘Parliament is not, in practice,"
,sovereign. The parliamentary democracy has now collapsed at
,Westminster. The basic defect in the British system of governing is
,the super-ministerial powers of the Prime Minister.’ The same
,description holds good to the Indian context too.
, RELATIONSHIP WITH THE PRESIDENT
,
,The following provisions of the Constitution deal with the
,relationship between the President and the Prime Minister:
,
,1. Article 74
,There shall be a council of ministers with the Prime Minister at the
,"head to aid and advise the President who shall, in the exercise of"
,"his functions, act in accordance with such advice. However, the"
,President may require the council of ministers to reconsider such
,advice and the President shall act in accordance with the advice
,tendered after such reconsideration.
,
,2. Article 75
,(a) The Prime Minister shall be appointed by the President and
,the other ministers shall be appointed by the president on the
,advice of the Prime Minister; (b) The ministers shall hold office
,during the pleasure of the president; and (c) The council of
,ministers shall be collectively responsible to the House of the
,People.
,
,3. Article 78
,It shall be the duty of the Prime Minister:
,(a) to communicate to the President all decisions of the council
,of ministers relating to the administration of the affairs of the
,Union and proposals for legislation;
,(b) to furnish such information relating to the administration of
,the affairs of the Union and proposals for legislation as the
,President may call for; and
,"(c) if the President so requires, to submit for the consideration of"
,the council of ministers any matter on which a decision has
,been taken by a minister but which has not been considered
,by the council.
, CHIEF MINISTERS WHO BECAME PRIME MINISTERS
,
,"Six people–Morarji Desai, Charan Singh, V.P. Singh, P.V."
,"Narasimha Rao, H.D. Deve Gowda and Narendra Modi–became"
,Prime Ministers after being Chief Ministers of their respective
,"States. Morarji Desai, Chief Minister of the erstwhile Bombay"
,"State during 1952–56, became the first non-Congress Prime"
,"Minister in March 1977. Charan Singh, who succeeded him, was"
,the Chief Minister of the undivided Uttar Pradesh in 1967–1968
,"and again in 1970. V.P. Singh, also from U.P., became Prime"
,Minister in the short lived National Front government (December
,"1989-November 1990). P.V. Narasimha Rao, the first Prime"
,"Minister from South India, who held the post from 1991–1996,"
,was Chief Minister of Andhra Pradesh between 1971–1973. H.D.
,Deve Gowda was Chief Minister of Karnataka when he was
,chosen to lead the United Front government in June 19965 .
,Narendra Modi (BJP) was the Chief Minister of Gujarat when
,he became the Prime Minister in May 2014. He served as the
,Chief Minister of Gujarat for four times during 2001 to 2014.
,
,Table 19.1 Articles Related to Prime Minister at a Glance
,Article No.   Subject-matter
,74.       Council of Ministers to aid and advise President
,75.       Other provisions as to Ministers
,77.       Conduct of business of the Government of
,India
,78.       Duties of Prime Minister as respects the
,"furnishing of information to the President, etc."
,88.       Rights of Ministers as respects the Houses.
,
,
,NOTES AND REFERENCES
,1. On the death of Jawaharlal Nehru and Lal Bahadur
,"Shastri when the leadership was contested, the"
,     president made temporary arrangements by appointing
,"the seniormost minister as the Prime Minister, until the"
,formal election of the leader by the party. Both the
,"times, it was Gulzari Lal Nanda who acted as the Prime"
,Minister.
,2.   The form of oath of office and secrecy for the Prime
,Minister is similar to that for any Union minister. See
,Chapter 20.
,"3.   For example, V.P. Singh in 1990 and Deve Gowda in"
,1997 resigned after defeat in the Lok Sabha.
,4.   Article 78 specifically deals with this function of the
,Prime Minister.
,"5.   The Hindu, April 6, 2009."
, 20       Central Council of Ministers
,
,
,
,
,A
,s the Constitution of India provides for a parliamentary
,"system of government modelled on the British pattern, the"
,council of ministers headed by the prime minister is the
,real executive authority is our politico-administrative system.
,The principles of parliamentary system of government are not
,"detailed in the Constitution, but two Articles (74 and 75) deal with"
,"them in a broad, sketchy and general manner. Article 74 deals"
,with the status of the council of ministers while Article 75 deals
,"with the appointment, tenure, responsibility, qualification, oath and"
,salaries and allowances of the ministers.
, CONSTITUTIONAL PROVISIONS
,
,Article 74—Council of Ministers to aid and advise
,President
,1. There shall be a Council of Ministers with the Prime Minister
,"at the head to aid and advise the President who shall, in the"
,"exercise of his functions, act in accordance with such"
,"advice. However, the President may require the Council of"
,Ministers to reconsider such advice and the President shall
,act in accordance with the advice tendered after such
,reconsideration.
,2. The advice tendered by Ministers to the President shall not
,be inquired into in any court.
,
,Article 75–Other Provisions as to Ministers
,1. The Prime Minister shall be appointed by the President and
,the other Ministers shall be appointed by the President on
,the advice of the Prime Minister.
,"2. The total number of ministers, including the Prime Minister,"
,in the Council of Ministers shall not exceed 15% of the total
,strength of the Lok Sabha. This provision was added by the
,91st Amendment Act of 2003.
,3. A member of either house of Parliament belonging to any
,political party who is disqualified on the ground of defection
,shall also be disqualified to be appointed as a minister. This
,provision was also added by the 91st Amendment Act of
,2003
,4. The ministers shall hold office during the pleasure of the
,President.
,5. The council of ministers shall be collectively responsible to
,the Lok Sabha.
,6. The President shall administer the oaths of office and
,secrecy to a minister.
,7. A minister who is not a member of the Parliament (either
,house) for any period of six consecutive months shall cease
,     to be a minister.
,8. The salaries and allowances            of   ministers   shall   be
,determined by the Parliament.
,
,Article 77–Conduct of Business of the Government of
,India
,1. All executive action of the Government of India shall be
,expressed to be taken in the name of the President.
,2. Orders and other instruments made and executed in the
,name of the President shall be authenticated in such manner
,as may be specified in rules to be made by the President.
,"Further, the validity of an order or instrument which is so"
,authenticated shall not be called in question on the ground
,that it is not an order or instrument made or executed by the
,President.
,3. The President shall make rules for the more convenient
,"transaction of the business of the Government of India, and"
,for the allocation among Ministers of the said business.
,
,Article 78–Duties of Prime Minister
,It shall be the duty of the Prime Minister
,1. To communicate to the President all decisions of the Council
,of Ministers relating to the administration of the affairs of the
,Union and proposals for legislation
,2. To furnish such information relating to the administration of
,the affairs of the Union and proposals for legislation as the
,President may call for
,"3. If the President so requires, to submit for the consideration"
,of the Council of Ministers any matter on which a decision
,has been taken by a Minister but which has not been
,considered by the Council
,
,Article 88–Rights of Ministers as Respects the Houses
,Every minister shall have the right to speak and take part in the
,"proceedings of either House, any joint sitting of the Houses and"
,any Committee of Parliament of which he may be named a
,member. But he shall not be entitled to vote.
, NATURE OF ADVICE BY MINISTERS
,
,Article 74 provides for a council of ministers with the Prime
,Minister at the head to aid and advise the President in the
,exercise of his functions. The 42nd and 44th Constitutional
,Amendment Acts have made the advice binding on the
,"President.1 Further, the nature of advice tendered by ministers to"
,the President cannot be enquired by any court. This provision
,emphasises the intimate and the confidential relationship between
,the President and the ministers.
,"In 1971, the Supreme Court held that ‘even after the dissolution"
,"of the Lok Sabha, the council of ministers does not cease to hold"
,"office. Article 74 is mandatory and, therefore, the president cannot"
,exercise the executive power without the aid and advise of the
,council of ministers. Any exercise of executive power without the
,aid and advice will be unconstitutional as being violative of Article
,"74’. Again in 1974, the court held that ‘wherever the Constitution"
,"requires the satisfaction of the President, the satisfaction is not"
,the personal satisfaction of the President but it is the satisfaction
,of the council of ministers with whose aid and on whose advice
,the President exercises his powers and functions’.
, APPOINTMENT OF MINISTERS
,
,"The Prime Minister is appointed by the President, while the other"
,ministers are appointed by the President on the advice of the
,Prime Minister. This means that the President can appoint only
,those persons as ministers who are recommended by the Prime
,minister.
,"Usually, the members of Parliament, either Lok Sabha or Rajya"
,"Sabha, are appointed as ministers. A person who is not a member"
,of either House of Parliament can also be appointed as a minister.
,"But, within six months, he must become a member (either by"
,"election or by nomination) of either House of Parliament,"
,"otherwise, he ceases to be a minister."
,A minister who is a member of one House of Parliament has
,the right to speak and to take part in the proceedings of the other
,"House also, but he can vote only in the House of which he is a"
,member.
, OATH AND SALARY OF MINISTERS
,
,"Before a minister enters upon his office, the president administers"
,"to him the oaths of office and secrecy. In his oath of office, the"
,minister swears:
,"1. to bear true faith and allegiance to the Constitution of India,"
,"2. to uphold the sovereignty and integrity of India,"
,3. to faithfully and conscientiously discharge the duties of his
,"office, and"
,4. to do right to all manner of people in accordance with the
,"Constitution and the law, without fear or favour, affection or"
,ill will.
,"In his oath of secrecy, the minister swears that he will not"
,directly or indirectly communicate or reveal to any person(s) any
,matter that is brought under his consideration or becomes known
,to him as a Union minister except as may be required for the due
,discharge of his duties as such minister.
,"In 1990, the oath by Devi Lal as deputy prime minister was"
,challenged as being unconstitutional as the Constitution provides
,only for the Prime Minister and ministers. The Supreme Court
,upheld the oath as valid and stated that describing a person as
,Deputy Prime Minister is descriptive only and such description
,does not confer on him any powers of Prime Minister. It ruled that
,the description of a minister as Deputy Prime Minister or any other
,type of minister such as minister of state or deputy minister of
,which there is no mention in the Constitution does not vitiate the
,oath taken by him so long as the substantive part of the oath is
,correct.
,The salaries and allowances of ministers are determined by
,Parliament from time to time.2 A minister gets the salary and
,allowances that are payable to a member of Parliament.
,"Additionally, he gets a sumptuary allowance (according to his"
,"rank), free accommodation, travelling allowance, medical facilities,"
,"etc. In 2001, the sumptuary allowance for the prime minister was"
,"raised from ₹1,500 to ₹3,000 per month, for a cabinet minister"
,"from ₹1,000 to ₹2,000 per month, for a minister of state from ₹500"
,"to ₹1,000 per month and for a deputy minister from ₹300 to ₹600"
,per month.
, RESPONSIBILITY OF MINISTERS
,
,Collective Responsibility
,The fundamental principle underlying the working of parliamentary
,system of government is the principle of collective responsibility.
,Article 75 clearly states that the council of ministers is collectively
,responsible to the Lok Sabha. This means that all the ministers
,own joint responsibility to the Lok Sabha for all their acts of
,ommission and commission. They work as a team and swim or
,sink together. When the Lok Sabha passes a no-confidence
,"motion against the council of ministers, all the ministers have to"
,resign including those ministers who are from the Rajya Sabha.3
,"Alternatively, the council of ministers can advise the president to"
,dissolve the Lok Sabha on the ground that the House does not
,represent the views of the electorate faithfully and call for fresh
,elections. The President may not oblige the council of ministers
,that has lost the confidence of the Lok Sabha.
,The principle of collective responsibility also means that the
,Cabinet decisions bind all cabinet ministers (and other ministers)
,even if they differed in the cabinet meeting. It is the duty of every
,minister to stand by cabinet decisions and support them both
,within and outside the Parliament. If any minister disagrees with a
,"cabinet decision and is not prepared to defend it, he must resign."
,Several ministers have resigned in the past owing to their
,"differences with the cabinet. For example, Dr. B.R. Ambedkar"
,resigned because of his differences with his colleagues on the
,Hindu Code Bill in 1953. C.D. Deshmukh resigned due to his
,differences on the policy of reorganisation of states. Arif
,Mohammed resigned due to his opposition to the Muslim Women
,"(Protection of Rights on Divorce) Act, 1986."
,
,Individual Responsibility
,Article 75 also contains the principle of individual responsibility. It
,states that the ministers hold office during the pleasure of the
,"president, which means that the President can remove a minister"
,even at a time when the council of ministers enjoys the confidence
,"of the Lok Sabha. However, the President removes a minister only"
,on the advice of the Prime Minister. In case of a difference of
,"opinion or dissatisfaction with the performance of a minister, the"
,Prime Minister can ask him to resign or advice the President to
,"dismiss him. By exercising this power, the Prime Minister can"
,ensure the realisation of the rule of collective responsibility. In this
,"context, Dr. B.R. Ambedkar observed:"
,“Collective responsibility can be achieved only through the
,"instrumentality of the Prime Minister. Therefore, unless and"
,until we create that office and endow that office with statutory
,"authority to nominate and dismiss ministers, there can be no"
,collective responsibility.”4
,
,No Legal Responsibility
,"In Britain, every order of the King for any public act is"
,"countersigned by a minister. If the order is in violation of any law,"
,the minister would be held responsible and would be liable in the
,"court. The legally accepted phrase in Britain is, “The king can do"
,"no wrong.” Hence, he cannot be sued in any court."
,"In India, on the other hand, there is no provision in the"
,Constitution for the system of legal responsibility of a minister. It is
,not required that an order of the President for a public act should
,"be countersigned by a minister. Moreover, the courts are barred"
,from enquiring into the nature of advice rendered by the ministers
,to the president.
, COMPOSITION OF THE COUNCIL OF MINISTERS
,
,"The council of ministers consists of three categories of ministers,"
,"namely, cabinet ministers, ministers of state,5 and deputy"
,ministers. The difference between them lies in their respective
,"ranks, emoluments, and political importance. At the top of all"
,these ministers stands the Prime Minister–the supreme governing
,authority of the country.
,The cabinet ministers head the important ministries of the
,"Central government like home, defence, finance, external affairs"
,"and so forth. They are members of the cabinet, attend its"
,"meetings and play an important role in deciding policies. Thus,"
,their responsibilities extend over the entire gamut of Central
,government.
,The ministers of state can either be given independent charge
,of ministries/ departments or can be attached to cabinet ministers.
,"In case of attachment, they may either be given the charge of"
,departments of the ministries headed by the cabinet ministers or
,allotted specific items of work related to the ministries headed by
,"cabinet ministers. In both the cases, they work under the"
,supervision and guidance as well as under the overall charge and
,responsibility of the cabinet ministers. In case of independent
,"charge, they perform the same functions and exercise the same"
,powers in relation to their ministries/departments as cabinet
,"ministers do. However, they are not members of the cabinet and"
,do not attend the cabinet meetings unless specially invited when
,something related to their ministries/ departments are considered
,by the cabinet.
,Next in rank are the deputy ministers. They are not given
,independent charge of ministries/departments. They are attached
,to the cabinet ministers or ministers of state and assist them in
,"their administrative, political, and parliamentary duties. They are"
,not members of the cabinet and do not attend cabinet meetings.
,It must also be mentioned here that there is one more category
,"of ministers, called parliamentary secretaries. They are the"
,members of the last category of the council of ministers (which is
,also known as the ‘ministry’). They have no department under
,their control. They are attached to the senior ministers and assist
,"them in the discharge of their parliamentary duties. However,"
,"since 1967, no parliamentary secretaries have been appointed"
,except during the first phase of Rajiv Gandhi Government.
,"At times, the council of ministers may also include a deputy"
,prime minister. The deputy prime ministers are appointed mostly
,for political reasons.
, COUNCIL OF MINISTERS VS CABINET
,
,The words ‘council of ministers’ and ‘cabinet’ are often used
,interchangeably though there is a definite distinction between
,"them. They differ from each other in respects of composition,"
,"functions, and role. These differences are shown in Table 20.1."
, ROLE OF CABINET
,
,1. It is the highest decision-making authority in our politico-
,administrative system.
,2. It is the chief policy formulating body of the Central
,government.
,3. It is the supreme executive authority of the Central
,government.
,4. It is chief coordinator of Central administration.
,5. It is an advisory body to the president and its advice is
,binding on him.
,6. It is the chief crisis manager and thus deals with all
,emergency situations.
,7. It deals with all major legislative and financial matters.
,8. It exercises control over higher appointments like
,constitutional      authorities     and     senior      secretariat
,administrators.
,9. It deals with all foreign policies and foreign affairs.
,
,Table 20.1 Distinction Between Council of Ministers and Cabinet
,Council of ministers                Cabinet
,1. It is a wider body consisting    1. It is a       smaller body
,of 60 to 70 ministers.              consisting    of 15 to 20
,ministers.
,2. It includes all the three        2. It includes the cabinet
,"categories of ministers, that       ministers only. Thus, it is a"
,"is,    cabinet    ministers,        part of the council of"
,"ministers of state, and             ministers."
,deputy ministers.
,"3. It does not meet, as a body, 3. It meets, as a body,"
,to transact government          frequently and usually once
,business.     It   has   no     in a week to deliberate and
,collective functions.           take decisions regarding
,the      transaction      of
,government         business.
,"                                     Thus, it     has   collective"
,functions.
,"4. It is vested with all powers   4. It exercises, in practice, the"
,but in theory.                    powers of the council of
,"ministers and thus, acts for"
,the latter.
,5. Its     functions      are     5. It directs the council of
,determined by the cabinet.        ministers by taking policy
,decisions which are binding
,on all ministers.
,6. It implements the decisions    6. It      supervises     the
,taken by the cabinet.             implementation     of    its
,decisions by the council of
,ministers.
,"7. It is a constitutional body, 7. It was inserted in Article"
,dealt in detail by the          352 of the Constitution in
,Articles 74 and 75 of the       1978      by     the     44th
,Constitution. Its size and      Constitutional Amendment
,"classification are, however,    Act. Thus, it did not find a"
,not mentioned in the            place in the original text of
,"Constitution. Its size is       the Constitution. Now also,"
,determined by the prime         Article 352 only defines the
,minister according to the       cabinet saying that it is ‘the
,exigencies of the time and      council consisting of the
,requirements        of    the   prime minister and other
,situation. Its classification   ministers of cabinet rank
,into a three-tier body is       appointed under Article 75’
,based on the conventions        and does not describe its
,of              parliamentary   powers and functions. In
,"government as developed         other words, its role in our"
,"in Britain. It has, however,    politico-administrative"
,got a legislative sanction.     system is based on the
,"Thus, the Salaries and          conventions                  of"
,Allowances Act of 1952          parliamentary government
,defines a ‘minister’ as a       as developed in Britain.
,‘member of the council of
,"ministers, by whatever"
,"   name called, and includes"
,a deputy minister’.
,8. It is collectively responsible   8. It enforces the collective
,to the Lower House of the           responsibility of the council
,Parliament.                         of ministers to the Lower
,House of Parliament.
, ROLE DESCRIPTIONS
,
,The various comments made by the eminent political scientists
,and constitutional experts on the role of cabinet in Britain holds
,good in the Indian context also. These are mentioned below.
,
,Ramsay Muir
,“The Cabinet is the steering wheel of the ship of the state.”
,
,Lowell
,“The Cabinet is the keystone of the political arch”.
,
,Sir John Marriott
,“The Cabinet is the pivot around which the whole political
,machinery revolves”.
,
,Gladstone
,“The Cabinet is the solar orb around which the other bodies
,revolve”.
,
,Barker
,“The Cabinet is the magnet of policy”.
,
,Bagehot
,"“The Cabinet is a hyphen that joins, the buckle that binds the"
,executive and legislative departments together”.
,
,Sir Ivor Jennings
,“The Cabinet is the core of the British Constitutional System. It
,provides unity to the British system of Government”.
,
,L.S. Amery
,“The Cabinet is the central directing instrument of Government”.
,The position of the Cabinet in the British Government has
,become so strong that Ramsay Muir referred to it as the
,‘Dictatorship of the Cabinet’. In his book ‘How Britain is
,"Governed’, he writes “A body which wields such powers as these"
,"may fairly be described as ‘omnipotent’ in theory, however,"
,"incapable it may be of using its omnipotence. Its position,"
,"whenever it commands a majority, is a dictatorship only qualified"
,by publicity. This dictatorship is far more absolute that it was two
,generations ago”. The same description holds good in the Indian
,context too.
, KITCHEN CABINET
,"The cabinet, a small body consisting of the prime minister as its"
,"head and some 15 to 20 most important ministers, is the highest"
,"decision-making body in the formal sense. However, a still smaller"
,body called the ‘Inner Cabinet’ or ‘Kitchen Cabinet’ has become
,the real centre of power. This informal body consists of the Prime
,Minister and two to four influential colleagues in whom he has
,faith and with whom he can discuss every problem. It advises the
,prime minister on important political and administrative issues and
,assists him in making crucial decisions. It is composed of not only
,cabinet ministers but also outsiders like friends and family
,members of the prime minister.
,Every prime minister in India has had his ‘Inner Cabinet’–a
,"circle within a circle. During the era of Indira Gandhi, the ‘Inner"
,Cabinet’ which came to be called the ‘Kitchen Cabinet’ was
,particularly powerful.
,The prime ministers have resorted to the device of ‘inner
,"cabinet’ (extra-constitutional body) due to its merits, namely:"
,"1. It being a small unit, is much more efficient decision-making"
,body than a large cabinet.
,2. It can meet more often and deal with business much more
,expeditiously than the large cabinet.
,3. It helps the Prime Minister in maintaining secrecy in making
,decisions on important political issues.
,"However, it has many demerits also. Thus,6"
,1. It reduces the authority and status of the cabinet as the
,highest decision-making body.
,2. It circumvents the legal process by allowing outside persons
,to play an influential role in the government functioning.
,The phenomenon of ‘kitchen cabinet’ (where decisions are
,cooked and placed before the cabinet for formal approval) is not
,unique to India. It also exists in USA and Britain and is quite
,powerful in influencing government decisions there.
,
,Table 20.2 Articles Related to Central Council of Ministers at a
,Glance
,Article   Subject Matter
,No.
,74.    Council of Ministers to aid and advise President
,75.    Other provisions as to Ministers
,77.    Conduct of business of the Government of India
,78.    Duties of Prime Minister as respects the furnishing of
,"information to the President, etc."
,88.    Rights of Ministers as respects the Houses.
,
,
,NOTES AND REFERENCES
,1. This Article was amended by the 42nd Constitutional
,Amendment Act of 1976 to the effect that the president
,"shall, in the exercise of his functions, act in accordance"
,with the advice rendered by the council of ministers.
,The 44th Constitutional Amendment Act of 1978 further
,added a proviso to this article to the effect that the
,president may require the council of ministers to
,reconsider such advice and the president shall act in
,accordance with the advice tendered after such
,reconsideration.
,"2. The Salaries and Allowances of Ministers Act, 1952,"
,has been passed for this purpose.
,3. Each minister need not resign separately; the
,resignation of the prime minister amounts to the
,resignation of the entire council of ministers.
,"4. Constituent Assembly Debates, Volume VIII, p. 1160"
,"5. In 1952, the minister of state was given the new"
,"designation of ‘Minister of Cabinet Rank’. But in 1957,"
,the earlier designation was restored.
,"6. Avasthi and Avasthi, Indian Administration, Laksmi"
,"Narain Agarwal, First Edition, 1993, p. 79."
, 21      Cabinet Committees
,
,
,FEATURES OF CABINET COMMITTEES
,The following are the features of Cabinet Committees:
,"1. They are extra-constitutional in emergence. In other words,"
,"they are not mentioned in the Constitution. However, the"
,Rules of Business provide for their establishment.
,2. They are of two types–standing and ad hoc. The former are
,of a permanent nature while the latter are of a temporary
,nature. The ad hoc committees are constituted from time to
,time to deal with special problems. They are disbanded after
,their task is completed.1
,3. They are set up by the Prime Minister according to the
,exigencies of the time and requirements of the situation.
,"Hence, their number, nomenclature, and composition varies"
,from time to time.
,4. Their membership varies from three to eight. They usually
,"include only Cabinet Ministers. However, the non-cabinet"
,Ministers are not debarred from their membership.
,5. They not only include the Ministers in charge of subjects
,covered by them but also include other senior Ministers.
,6. They are mostly headed by the Prime Minister. Some times
,"other Cabinet Ministers, particularly the Home Minister or the"
,"Finance Minister, also acts as their Chairman. But, in case"
,"the Prime Minister is a member of a committee, he invariably"
,presides over it.
,7. They not only sort out issues and formulate proposals for the
,"consideration of the Cabinet, but also take decisions."
,"However, the Cabinet can review their decisions."
,8. They are an organisational device to reduce the enormous
,workload of the Cabinet. They also facilitate in-depth
,examination of policy issues and effective coordination. They
,are based on the principles of division of labour and effective
,delegation.
, LIST OF CABINET COMMITTEES
,"In 1994, there were the following 13 Cabinet Committees:"
,1. Cabinet Committee on Political Affairs
,2. Cabinet Committee on Natural Calamities
,3. Cabinet Committee on Parliamentary Affairs
,4. Appointments Committee of the Cabinet
,5. Cabinet Committee on Accommodation
,6. Cabinet Committee on Foreign Investment
,7. Cabinet Committee on Drug Abuse Control
,8. Cabinet Committee on Prices
,9. Cabinet Committee on Minority Welfare
,10. Cabinet Committee on Economic Affairs
,11. Cabinet Committee on Trade and Investment
,12. Cabinet Committee on Expenditure
,13. Cabinet Committee on Infrastructure
,"In 2013, the following 10 Cabinet Committees were in existence:"
,1. Cabinet Committee on Economic Affairs
,2. Cabinet Committee on Prices
,3. Cabinet Committee on Political Affairs
,4. Appointments Committee of the Cabinet
,5. Cabinet Committee on Security
,6. Cabinet Committee on World Trade Organisation (WTO)
,Matters
,7. Cabinet Committee on Investment
,8. Cabinet Committee on Unique Identification Authority of
,India (UIDAI) related issues
,9. Cabinet Committee on Parliamentary Affairs
,10. Cabinet Committee on Accommodation
,"At present (2019), the following 8 Cabinet Committees are"
,functional:
,1. Cabinet Committee on Political Affairs
,2. Cabinet Committee on Economic Affairs
,3. Appointments Committee of the Cabinet
,4. Cabinet Committee on Security
,5. Cabinet Committee on Parliamentary Affairs
,6. Cabinet Committee on Accommodation
,7. Cabinet Committee on Investment and Growth
,8. Cabinet Committee on Employment and Skill Development
, FUNCTIONS OF CABINET COMMITTEES
,
,The following four are the more important cabinet committees:
,1. The Political Affairs Committee deals with all policy matters
,pertaining to domestic and foreign affairs.
,2. The Economic Affairs Committee directs and coordinates
,the governmental activities in the economic sphere.
,3. Appointments Committee decides all higher level
,"appointments in the Central Secretariat, Public Enterprises,"
,Banks and Financial Institutions.
,4. Parliamentary Affairs Committee looks after the progress of
,government business in the Parliament.
,The first three committees are chaired by the Prime Minister
,and the last one by the Home Minister. Of all the Cabinet
,"Committees, the most powerful is the Political Affairs Committee,"
,often described as a “Super-Cabinet”.
, GROUPS OF MINISTERS
,
,"In addition to cabinet committees, several Groups of Ministers"
,(GoMs) are constituted to look into different issues / subjects.
,Some of these GoMs are empowered to take decisions on behalf
,of the Cabinet whereas the others make recommendations to the
,Cabinet.2
,The institution of GoMs has become a viable and effective
,instrument of coordination among the ministries. These are ad hoc
,bodies formed to give recommendations to the cabinet on certain
,emergent issues and critical problem areas. Ministers heading the
,concerned ministries are inducted into the relevant GoMs and
,when the advice is crystallised they are disbanded.3
,The Second Administrative Reforms Commission (2005–2009)
,made the following observations and recommendations with
,respect to the working of the GoMs4 :
,1. The Commission observed that the constitution of a large
,number of GoMs has resulted in many GoMs not being able
,to meet regularly to complete their work thus leading to
,significant delays on many major issues.
,2. The Commission felt that more selective use of the
,institution of GoMs would perhaps lead to more effective
,coordination particularly if they are empowered to arrive at a
,decision on behalf of the Cabinet with time limits that are
,prescribed for completing the work entrusted to them.
,3. The Commission recommended that there is need to ensure
,that the existing coordination mechanism of GoMs function
,"effectively and helps in early resolution of issues. Selective,"
,but effective use of GoMs with clear mandate and prescribed
,time limits would be helpful.
,
,
,NOTES AND REFERENCES
,"1. For example, the Emergency Committee was set-up in"
,1962 after the Chinese invasion.
,"2. Second      Administrative   Reforms     Commission,"
,"Government of India, Report on Organizational"
,"Structure of Government of India, 2009, P.136. This"
,"commission was headed by Veerappa Moily, a senior"
,Congress leader and former Karnataka Chief Minister.
,"3. Ramesh K. Arora and Rajni Goyal, Indian Public"
,"Administration, New Age International Publishers, Third"
,"Edition, 2013, pp. 238–239."
,"4. Second      Administrative   Reforms     Commission,"
,"Government of India, Report on Organisational"
,"Structure of Government of India, 2009, pp. 136–137"
,and 140.
, 22      Parliament
,
,
,
,
,T
,he Parliament is the legislative organ of the Union
,government. It occupies a pre-eminent and central position
,in the Indian democratic political system due to adoption of
,"the parliamentary form of government, also known as"
,‘Westminster’ model of government1 .
,Articles 79 to 122 in Part V of the Constitution deal with the
,"organisation, composition, duration, officers, procedures,"
,"privileges, powers and so on of the Parliament."
, ORGANISATION OF PARLIAMENT
,
,"Under the Constitution, the Parliament of India consists of three"
,"parts viz, the President, the Council of States and the House of"
,"the People. In 1954, the Hindi names ‘Rajya Sabha’ and ‘Lok"
,Sabha’ were adopted by the Council of States and the House of
,People respectively. The Rajya Sabha is the Upper House
,(Second Chamber or House of Elders) and the Lok Sabha is the
,Lower House (First Chamber or Popular House). The former
,"represents the states and union territories of the Indian Union,"
,while the latter represents the people of India as a whole.
,Though the President of India is not a member of either House
,of Parliament and does not sit in the Parliament to attend its
,"meetings, he is an integral part of the Parliament. This is because"
,a bill passed by both the Houses of Parliament cannot become
,law without the President’s assent. He also performs certain
,"functions relating to the proceedings of the Parliament, for"
,"example, he summons and pro-rogues both the Houses, dissolves"
,"the Lok Sabha, addresses both the Houses, issues ordinances"
,"when they are not in session, and so on."
,"In this respect, the framers of the Indian Constitution relied on"
,"the British pattern rather than the American pattern. In Britain, the"
,"Parliament consists of the Crown (King or Queen), the House of"
,Lords (Upper House) and the House of Commons (Lower House).
,"By contrast, the American president is not an integral part of the"
,"legislature. In USA, the legislature, which is known as Congress,"
,consists of the Senate (Upper House) and the House of
,Representatives (Lower House).
,The parliamentary form of government emphasises on the
,interdependence between the legislative and executive organs.
,"Hence, we have the ‘President-in-Parliament’ like the ‘Crown-in-"
,"Parliament’ in Britain. The presidential form of government, on the"
,"other hand, lays stress on the separation of legislative and"
,"executive organs. Hence, the American president is not regarded"
,as a constituent part of the Congress.
, COMPOSITION OF THE TWO HOUSES
,
,Composition of Rajya Sabha
,"The maximum strength of the Rajya Sabha is fixed at 250, out of"
,"which, 238 are to be the representatives of the states and union"
,territories (elected indirectly) and 12 are nominated by the
,president.
,"At present, the Rajya Sabha has 245 members. Of these, 229"
,"members represent the states, 4 members represent the union"
,territories and 12 members are nominated by the president.
,The Fourth Schedule of the Constitution deals with the
,allocation of seats in the Rajya Sabha to the states and union
,territories2 .
,
,1. Representation of States
,The representatives of states in the Rajya Sabha are elected by
,the elected members of state legislative assemblies. The election
,is held in accordance with the system of proportional
,representation by means of the single transferable vote. The seats
,are allotted to the states in the Rajya Sabha on the basis of
,"population. Hence, the number of representatives varies from"
,"state to state. For example, Uttar Pradesh has 31 members while"
,"Tripura has 1 member only. However, in USA, all states are given"
,equal representation in the Senate irrespective of their population.
,USA has 50 states and the Senate has 100 members–2 from
,each state.
,
,2. Representation of Union Territories
,The representatives of each union territory in the Rajya Sabha are
,indirectly elected by members of an electoral college specially
,constituted for the purpose. This election is also held in
,accordance with the system of proportional representation by
,means of the single transferable vote. Out of the nine union
,"territories, only three (Delhi, Puducherry and Jammu & Kashmir)"
,have representation in Rajya Sabha. The populations of other six
,union territories are too small to have any representative in the
,Rajya Sabha.
,
,3. Nominated Members
,The president nominates 12 members to the Rajya Sabha from
,"people who have special knowledge or practical experience in art,"
,"literature, science and social service. The rationale behind this"
,principle of nomination is to provide eminent persons a place in
,the Rajya Sabha without going through the process of election. It
,should be noted here that the American Senate has no nominated
,members.
,
,Composition of Lok Sabha
,The maximum strength of the Lok Sabha is fixed at 552. Out of
,"this, 530 members are to be the representatives of the states, 20"
,members are to be the representatives of the union territories and
,2 members are to be nominated by the president from the Anglo-
,Indian community3 .
,"At present, the Lok Sabha has 545 members. Of these, 530"
,"members represent the states, 13 members represent the union"
,territories and 2 Anglo-Indian members are nominated by the
,President4 .
,
,1. Representation of States
,The representatives of states in the Lok Sabha are directly elected
,by the people from the territorial constituencies in the states. The
,election is based on the principle of universal adult franchise.
,Every Indian citizen who is above 18 years of age and who is not
,disqualified under the provisions of the Constitution or any law is
,eligible to vote at such election. The voting age was reduced from
,"21 to 18 years by the 61st Constitutional Amendment Act, 1988."
,
,2. Representation of Union Territories
,The Constitution has empowered the Parliament to prescribe the
,manner of choosing the representatives of the union territories in
,"the Lok Sabha. Accordingly, the Parliament has enacted the"
,"Union Territories (Direct Election to the House of the People) Act,"
,"1965, by which the members of Lok Sabha from the union"
,territories are also chosen by direct election.
,
,3. Nominated Members
,The president can nominate two members from the Anglo-Indian
,community if the community is not adequately represented in the
,"Lok Sabha. Originally, this provision was to operate till 1960 but"
,"has been extended till 2020 by the 95th Amendment Act, 2009."
, SYSTEM OF ELECTIONS TO LOK SABHA
,
,The various aspects related to the system of elections to the Lok
,Sabha are as follows:
,
,Territorial Constituencies
,"For the purpose of holding direct elections to the Lok Sabha, each"
,"state is divided into territorial constituencies. In this respect, the"
,Constitution makes the following two provisions:
,1. Each state is allotted a number of seats in the Lok Sabha in
,such a manner that the ratio between that number and its
,population is the same for all states. This provision does not
,apply to a state having a population of less than six millions.
,2. Each state is divided into territorial constituencies in such a
,manner that the ratio between the population of each
,constituency and the number of seats allotted to it is the
,same throughout the state.
,"In brief, the Constitution ensures that there is uniformity of"
,"representation in two respects: (a) between the different states,"
,and b) between the different constituencies in the same state.
,The expression ‘population’ means the population as
,ascertained at the preceding census of which the relevant figures
,have been published.
,
,Readjustment after each Census
,"After every census, a readjustment is to be made in (a) allocation"
,"of seats in the Lok Sabha to the states, and (b) division of each"
,state into territorial constituencies. Parliament is empowered to
,determine the authority and the manner in which it is to be made.
,"Accordingly, the Parliament has enacted the Delimitation"
,"Commission Acts in 1952, 1962, 1972 and 2002 for this purpose."
,The 42nd Amendment Act of 1976 froze the allocation of seats
,in the Lok Sabha to the states and the division of each state into
,territorial constituencies till the year 2000 at the 1971 level. This
,"ban on readjustment was extended for another 25 years (ie, upto"
,"year 2026) by the 84th Amendment Act of 2001, with the same"
,objective of encouraging population limiting measures.
,The 84th Amendment Act of 2001 also empowered the
,government to undertake readjustment and rationalisation of
,territorial constituencies in the states on the basis of the
,"population figures of 1991 census. Later, the 87th Amendment Act"
,of 2003 provided for the delimitation of constituencies on the basis
,"of 2001 census and not 1991 census. However, this can be done"
,without altering the number of seats allotted to each state in the
,Lok Sabha.
,
,Reservation of Seats for SCs and STs
,Though the Constitution has abandoned the system of communal
,"representation, it provides for the reservation of seats for"
,scheduled castes and scheduled tribes in the Lok Sabha on the
,basis of population ratios5 .
,"Originally, this reservation was to operate for ten years (ie, up"
,"to 1960), but it has been extended continuously since then by 10"
,"years each time. Now, under the 95th Amendment Act of 2009,"
,this reservation is to last until 2020.
,Though seats are reserved for scheduled castes and scheduled
,"tribes, they are elected by all the voters in a constituency, without"
,any separate electorate. A member of scheduled castes and
,scheduled tribes is also not debarred from contesting a general
,(non-reserved) seat.
,The 84th Amendment Act of 2001 provided for refixing of the
,reserved seats on the basis of the population figures of 1991
,"census as applied to rationalisation of the general seats. Later, the"
,87th Amendment Act of 2003 provided for the refixing of the
,reserved seats on the basis of 2001 census and not 1991 census.
,
,First-Past-The-Post System
,Though the Constitution has adopted the system of proportional
,"representation in the case of Rajya Sabha, it has not preferred the"
,"same system in the case of Lok Sabha. Instead, it has adopted"
,the system of territorial representation (First-past-the-post system)
,for the election of members to the Lok Sabha.
,"    Under territorial representation, every member of the legislature"
,represents a geographical area known as a constituency. From
,"each constituency, only one representative is elected. Hence such"
,a constituency is known as single-member constituency. In this
,"system, a candidate who secures majority of votes is declared"
,elected. This simple majority system of representation does not
,"represent the whole electorate. In other words, it does not secure"
,due representation to minorities (small groups).
,The system of proportional representation aims at removing the
,"defects of territorial representation. Under this system, all sections"
,of the people get representation in proportion to their number.
,Even the smallest section of the population gets its due share of
,representation in the legislature.
,"There are two kinds of proportional representation, namely,"
,"single transferable vote system and list system. In India, the first"
,kind is adopted for the election of members to the Rajya Sabha
,and state legislative council and for electing the President and the
,Vice-President.
,Though some members of the Constituent Assembly had
,advocated the system of proportional representation for the
,"election of members to the Lok Sabha, the Constitution has not"
,adopted the system due to two reasons.
,1. Difficulty for the voters to understand the system (which is
,complicated) due to low literacy scale in the country.
,2. Unsuitability to the parliamentary government due to the
,tendency of the system to multiply political parties leading to
,instability in government.
,"Additionally, the system of proportional representation has the"
,following demerits:
,1. It is highly expensive.
,2. It does not give any scope for organising by-elections.
,3. It eliminates intimate contacts between voters and
,representatives.
,4. It promotes minority thinking and group interests.
,5. It increases the significance of party system and decreases
,that of voter.
, DURATION OF TWO HOUSES
,
,Duration of Rajya Sabha
,The Rajya Sabha (first constituted in 1952) is a continuing
,"chamber, that is, it is a permanent body and not subject to"
,"dissolution. However, one-third of its members retire every second"
,year. Their seats are filled up by fresh elections and presidential
,nominations at the beginning of every third year. The retiring
,members are eligible for re-election and renomination any number
,of times.
,The Constitution has not fixed the term of office of members of
,"the Rajya Sabha and left it to the Parliament. Accordingly, the"
,Parliament in the Representation of the People Act (1951)
,provided that the term of office of a member of the Rajya Sabha
,shall be six years. The act also empowered the president of India
,to curtail the term of members chosen in the first Rajya Sabha. In
,"the first batch, it was decided by lottery as to who should retire."
,"Further, the act also authorised the President to make provisions"
,to govern the order of retirement of the members of the Rajya
,Sabha6 .
,
,Duration of Lok Sabha
,"Unlike the Rajya Sabha, the Lok Sabha is not a continuing"
,chamber. Its normal term is five years from the date of its first
,"meeting after the general elections, after which it automatically"
,"dissolves. However, the President is authorised to dissolve the"
,Lok Sabha at any time even before the completion of five years
,and this cannot be challenged in a court of law.
,"Further, the term of the Lok Sabha can be extended during the"
,period of national emergency be a law of Parliament for one year
,"at a time7 for any length of time. However, this extension cannot"
,continue beyond a period of six months after the emergency has
,ceased to operate.
, MEMBERSHIP OF PARLIAMENT
,
,Qualifications
,The Constitution lays down the following qualifications for a
,person to be chosen a member of the Parliament:
,1. He must be a citizen of India.
,2. He must make and subscribe to an oath or affirmation
,before the person authorised by the election commission for
,"this purpose. In his oath or affirmation, he swears"
,(a) To bear true faith and allegiance to the Constitution of
,India
,(b) To uphold the sovereignty and integrity of India
,3. He must be not less than 30 years of age in the case of the
,Rajya Sabha and not less than 25 years of age in the case
,of the Lok Sabha.
,4. He must posses other qualifications prescribed by
,Parliament.
,The Parliament has laid down the following additional
,qualifications in the Representation of People Act (1951).
,1. He must be registered as an elector for a parliamentary
,"constituency. This is same in the case of both, the Rajya"
,Sabha and the Lok Sabha. The requirement that a candidate
,contesting an election to the Rajya Sabha from a particular
,state should be an elector in that particular state was
,"dispensed with in 2003. In 2006, the Supreme Court upheld"
,the constitutional validity of this change.
,2. He must be a member of a scheduled caste or scheduled
,"tribe in any state or union territory, if he wants to contest a"
,"seat reserved for them. However, a member of scheduled"
,castes or scheduled tribes can also contest a seat not
,reserved for them.
,
,Disqualifications
,"Under the Constitution, a person shall be disqualified for being"
,elected as a member of Parliament:
,   1. if he holds any office of profit under the Union or state
,government (except that of a minister or any other office
,exempted by Parliament).8
,2. if he is of unsound mind and stands so declared by a court.
,3. if he is an undischarged insolvent.
,4. if he is not a citizen of India or has voluntarily acquired the
,citizenship of a foreign state or is under any
,acknowledgement of allegiance to a foreign state; and
,5. if he is so disqualified under any law made by Parliament.
,The Parliament has laid down the following additional
,disqualifications in the Representation of People Act (1951):
,1. He must not have been found guilty of certain election
,offences or corrupt practices in the elections.
,2. He must not have been convicted for any offence resulting in
,"imprisonment for two or more years. But, the detention of a"
,person under a preventive detention law is not a
,disqualification.
,3. He must not have failed to lodge an account of his election
,expenses within the time.
,"4. He must not have any interest in government contracts,"
,works or services.
,5. He must not be a director or managing agent nor hold an
,office of profit in a corporation in which the government has
,at least 25 per cent share.
,6. He must not have been dismissed from government service
,for corruption or disloyalty to the State.
,7. He must not have been convicted for promoting enmity
,between different groups or for the offence of bribery.
,8. He must not have been punished for preaching and
,"practising social crimes such as untouchability, dowry and"
,sati.
,On the question whether a member is subject to any of the
,"above disqualifications, the president’s decision is final. However,"
,he should obtain the opinion of the election commission and act
,accordingly.
,
,Disqualification on Ground of Defection
,The Constitution also lays down that a person shall be disqualified
,from being a member of Parliament if he is so disqualified on the
,ground of defection under the provisions of the Tenth Schedule. A
,member incurs disqualification under the defection law:
,1. if he voluntary gives up the membership of the political party
,on whose ticket he is elected to the House;
,2. if he votes or abstains from voting in the House contrary to
,any direction given by his political party;
,3. if any independently elected member joins any political
,party; and
,4. if any nominated member joins any political party after the
,expiry of six months.
,The question of disqualification under the Tenth Schedule is
,decided by the Chairman in the case of Rajya Sabha and Speaker
,in the case of Lok Sabha (and not by the president of India). In
,"1992, the Supreme Court ruled that the decision of the Chairman/"
,Speaker in this regard is subject to judicial review.
,
,Vacating of Seats
,"In the following cases, a member of Parliament vacates his seat."
,
,1. Double Membership
,A person cannot be a member of both Houses of Parliament at
,"the same time. Thus, the Representation of People Act (1951)"
,provides for the following:
,"(a) If a person is elected to both the Houses of Parliament, he"
,must intimate within 10 days in which House he desires to
,"serve. In default of such intimation, his seat in the Rajya"
,Sabha becomes vacant.
,(b) If a sitting member of one House is also elected to the other
,"House, his seat in the first House becomes vacant."
,"(c) If a person is elected to two seats in a House, he should"
,"exercise his option for one. Otherwise, both seats become"
,vacant.
,"Similarly, a person cannot be a member of both the Parliament"
,and the state legislature at the same time. If a person is so
,"elected, his seat in Parliament becomes vacant if he does not"
,resign his seat in the state legislature within 14 days9 .
,2. Disqualification
,If a member of Parliament becomes subject to any of the
,"disqualifications specified in the Constitution, his seat becomes"
,"vacant. Here, the list of disqualifications also include the"
,disqualification on the grounds of defection under the provisions of
,the Tenth Schedule of the Constitution.
,
,3. Resignation
,A member may resign his seat by writing to the Chairman of Rajya
,"Sabha or Speaker of Lok Sabha, as the case may be. The seat"
,"falls vacant when the resignation is accepted. However, the"
,Chairman/ Speaker may not accept the resignation if he is
,satisfied that it is not voluntary or genuine.
,
,4. Absence
,A House can declare the seat of a member vacant if he is absent
,from all its meetings for a period of sixty days without its
,"permission. In computing the period of sixty days, no account"
,shall be taken of any period during which the House is prorogued
,or adjourned for more than four consecutive days.
,
,5. Other cases
,A member has to vacate his seat in the Parliament:
,(a) if his election is declared void by the court;
,(b) if he is expelled by the House;
,(c) if he is elected to the office of President or Vice-President;
,and
,(d) if he is appointed to the office of governor of a state.
,"If a disqualified person is elected to the Parliament, the"
,Constitution lays down no procedure to declare the election void.
,This matter is dealt by the Representation of the People Act
,"(1951), which enables the high court to declare an election void if"
,a disqualified candidate is elected. The aggrieved party can
,appeal to the Supreme Court against the order of the high court in
,this regard.
,
,Oath or Affirmation
,"Every member of either House of Parliament, before taking his"
,"seat in the House, has to make and subscribe to an oath or"
,affirmation before the President or some person appointed by him
,"for this purpose. In his oath or affirmation, a member of Parliament"
,swears:
,1. to bear true faith and allegiance to the Constitution of India;
,2. to uphold the sovereignty and integrity of India; and
,3. to faithfully discharge the duty upon which he is about to
,enter.
,"Unless a member takes the oath, he cannot vote and"
,participate in the proceedings of the House and does not become
,eligible to parliamentary privileges and immunities.
,A person is liable to a penalty of ₹500 for each day he sits or
,votes as a member in a House in the following conditions:
,1. Before taking and subscribing to the prescribed oath or
,affirmation; or
,2. When he knows that he is not qualified or that he is
,disqualified for its membership; or
,3. When he knows that he is prohibited from sitting or voting in
,the House by virtue of any parliamentary law.
,
,Salaries and Allowances
,Members of either House of Parliament are entitled to receive
,such salaries and allowances as may be determined by
,"Parliament, and there is no provision of pension in the"
,"Constitution. However, Parliament has provided pension to the"
,members.
,"In 1954, the Parliament enacted the Salaries, Allowances and"
,"Pension of Members of Parliament Act. In 2018, the salary of"
,"members was increased from ₹50,000 to ₹1,00,000 per month,"
,"the constituency allowance from ₹45,000 to ₹70,000 per month"
,"and the office expenses allowance from ₹45,000 to ₹60,000 per"
,"month. Earlier in 2010, the daily allowance was increased from"
,"₹1,000 to ₹2,000 for each day of residence on duty."
,"From 1976, the members are also entitled to a pension on a"
,graduated scale for each five-year-term as members of either
,"House of Parliament. Besides, they are provided with travelling"
,"facilities, free accommodation, telephone, vehicle advance,"
,medical facilities and so on.
,The salaries and allowances of the Speaker and Deputy
,Speaker of Lok Sabha and the Chairman and Deputy Chairman of
,Rajya Sabha are also determined by Parliament. They are
,charged on the Consolidated Fund of India and thus are not
,subject to the annual vote of Parliament.
,"In 1953, the Parliament enacted the Salaries and Allowances of"
,"Officers of Parliament Act. Under this Act, “Officer of Parliament”"
,"means any of the following officers, namely, the Chairman and"
,Deputy Chairman of the Rajya Sabha and the Speaker and the
,"Deputy Speaker of the Lok Sabha. In 2018, the Parliament"
,increased the salary of the Chairman of the Rajya Sabha from
,"₹1.25 lakh to ₹4 lakh per month9a. Similarly, other Officers of"
,"Parliament (i.e., the Speaker and the Deputy Speaker of the Lok"
,Sabha and the Deputy Chairman of the Rajya Sabha) are entitled
,to receive a salary per month at the same rates as are payable to
,"the Members of Parliament.9b Further, each Officer of Parliament"
,(other than the Chairman of the Rajya Sabha) is entitled to receive
,a daily allowance (for each day during the whole of his term) at
,"the same rate as is payable to the Members of Parliament.9c Also,"
,each Officer of Parliament (other than the Chairman of the Rajya
,Sabha) is entitled to receive a constituency allowance at the same
,rate as is payable to the Members of Parliament.9d
,"According to the same Act, the sumptuary allowance is paid to"
,the Speaker of the Lok Sabha at the same rate as is payable to a
,"Cabinet Minister9e (i.e., ₹2,000 per month). Likewise, the"
,sumptuary allowance is paid to the Deputy Speaker of the Lok
,Sabha and the Deputy Chairman of the Rajya Sabha at the same
,"rate as is payable to a Minister of State9f (i.e., ₹1000 per month)."
, PRESIDING OFFICERS OF PARLIAMENT
,
,Each House of Parliament has its own presiding officer. There is a
,Speaker and a Deputy Speaker for the Lok Sabha and a
,Chairman and a Deputy Chairman for the Rajya Sabha. A panel of
,chairpersons for the Lok Sabha and a panel of vice-chairpersons
,for the Rajya Sabha is also appointed.
,
,Speaker of Lok Sabha
,
,Election and Tenure
,The Speaker is elected by the Lok Sabha from amongst its
,"members (as soon as may be, after its first sitting). Whenever the"
,"office of the Speaker falls vacant, the Lok Sabha elects another"
,member to fill the vacancy. The date of election of the Speaker is
,fixed by the President.
,"Usually, the Speaker remains in office during the life of the Lok"
,"Sabha. However, he has to vacate his office earlier in any of the"
,following three cases:
,1. if he ceases to be a member of the Lok Sabha;
,2. if he resigns by writing to the Deputy Speaker; and
,3. if he is removed by a resolution passed by a majority of all
,then members of the Lok Sabha. Such a resolution can be
,moved only after giving 14 days’ advance notice.
,When a resolution for the removal of the Speaker is under
,"consideration of the House, he cannot preside at the sitting of the"
,"House, though he may be present. However, he can speak and"
,take part in the proceedings of the House at such a time and vote
,"in the first instance, though not in the case of an equality of votes."
,"It should be noted here that, whenever the Lok Sabha is"
,"dissolved, the Speaker does not vacate his office and continues"
,till the newly-elected Lok Sabha meets.
,
,"Role, Powers and Functions"
,"The Speaker is the head of the Lok Sabha, and its representative."
,"He is the guardian of powers and privileges of the members, the"
,House as a whole and its committees. He is the principal
,"spokesman of the House, and his decision in all Parliamentary"
,matters is final. He is thus much more than merely the presiding
,"officer of the Lok Sabha. In these capacities, he is vested with"
,"vast, varied and vital responsibilities and enjoys great honour,"
,high dignity and supreme authority within the House.
,The Speaker of the Lok Sabha derives his powers and duties
,"from three sources, that is, the Constitution of India, the Rules of"
,"Procedure and Conduct of Business of Lok Sabha, and"
,Parliamentary Conventions (residuary powers that are unwritten
,"or unspecified in the Rules). Altogether, he has the following"
,powers and duties:
,1. He maintains order and decorum in the House for
,conducting its business and regulating its proceedings. This
,is his primary responsibility and he has final power in this
,regard.
,2. He is the final interpreter of the provisions of (a) the
,"Constitution of India, (b) the Rules of Procedure and"
,"Conduct of Business of Lok Sabha, and (c) the"
,"parliamentary precedents, within the House."
,3. He adjourns the House or suspends the meeting in absence
,of a quorum. The quorum to constitute a meeting of the
,House is one-tenth of the total strength of the House.
,4. He does not vote in the first instance. But he can exercise a
,"casting vote in the case of a tie. In other words, only when"
,"the House is divided equally on any question, the Speaker is"
,"entitled to vote. Such vote is called casting vote, and its"
,purpose is to resolve a deadlock.
,5. He presides over a joint setting of the two Houses of
,Parliament. Such a sitting is summoned by the President to
,settle a deadlock between the two Houses on a bill.
,6. He can allow a ‘secret’ sitting of the House at the request of
,"the Leader of the House. When the House sits in secret, no"
,"stranger can be present in the chamber, lobby or galleries"
,except with the permission of the Speaker.
,7. He decides whether a bill is a money bill or not and his
,decision on this question is final. When a money bill is
,transmitted to the Rajya Sabha for recommendation and
,"     presented to the President for assent, the Speaker endorses"
,on the bill his certificate that it is a money bill.
,8. He decides the questions of disqualification of a member of
,"the Lok Sabha, arising on the ground of defection under the"
,"provisions of the Tenth Schedule. In 1992, the Supreme"
,Court ruled that the decision of the Speaker in this regard is
,subject to judicial review10 .
,9. He acts as the ex-officio chairman of the Indian
,Parliamentary Group which is a link between the Parliament
,of India and the various parliaments of the world. He also
,acts as the ex-officio chairman of the conference of
,presiding officers of legislative bodies in the country.
,10. He appoints the chairman of all the parliamentary
,committees of the Lok Sabha and supervises their
,functioning. He himself is the chairman of the Business
,"Advisory Committee, the Rules Committee and the General"
,Purpose Committee.
,
,Independence and Impartiality
,"As the office of the Speaker is vested with great prestige, position"
,"and authority, independence and impartiality becomes its sine qua"
,non11 .
,The following provisions ensure the independence and
,impartiality of the office of the Speaker:
,1. He is provided with a security of tenure. He can be removed
,only by a resolution passed by the Lok Sabha by a special
,"majority (ie, a majority of all the then members of the House)"
,"and not by an ordinary majority (ie, a majority of the"
,members present and voting in the House). This motion of
,removal can be considered and discussed only when it has
,the support of at least 50 members.
,2. His salaries and allowances are fixed by Parliament. They
,are charged on the Consolidated Fund of India and thus are
,not subject to the annual vote of Parliament.
,3. His work and conduct cannot be discussed and criticised in
,the Lok Sabha except on a substantive motion.
,4. His powers of regulating procedure or conducting business
,or maintaining order in the House are not subject to the
,      jurisdiction of any Court.
,5. He cannot vote in the first instance. He can only exercise a
,casting vote in the event of a tie. This makes the position of
,Speaker impartial.
,6. He is given a very high position in the order of precedence.
,"He is placed at seventh rank, along with the Chief Justice of"
,"India. This means, he has a higher rank than all cabinet"
,"ministers, except the Prime Minister or Deputy Prime"
,Minister.
,"In Britain, the Speaker is strictly a nonparty man. There is a"
,convention that the Speaker has to resign from his party and
,remain politically neutral. This healthy convention is not fully
,established in India where the Speaker does not resign from the
,membership of his party on his election to the exalted office.
,
,Deputy Speaker of Lok Sabha
,"Like the Speaker, the Deputy Speaker is also elected by the Lok"
,Sabha itself from amongst its members. He is elected after the
,election of the Speaker has taken place. The date of election of
,the Deputy Speaker is fixed by the Speaker. Whenever the office
,"of the Deputy Speaker falls vacant, the Lok Sabha elects another"
,member to fill the vacancy.
,"Like the Speaker, the Deputy Speaker remains in office usually"
,"during the life of the Lok Sabha. However, he may vacate his"
,office earlier in any of the following three cases:
,1. if he ceases to be a member of the Lok Sabha;
,2. if he resigns by writing to the Speaker; and
,3. if he is removed by a resolution passed by a majority of all
,the then members of the Lok Sabha. Such a resolution can
,be moved only after giving 14 days’ advance notice.
,The Deputy Speaker performs the duties of the Speaker’s office
,when it is vacant. He also acts as the Speaker when the latter is
,"absent from the sitting of the House. In both the cases, he"
,assumes all the powers of the Speaker. He also presides over the
,"joint sitting of both the Houses of Parliament, in case the Speaker"
,is absent from such a sitting.
,It should be noted here that the Deputy Speaker is not
,subordinate to the Speaker. He is directly responsible to the
,House.
,"The Deputy Speaker has one special privilege, that is,"
,whenever he is appointed as a member of a parliamentary
,"committee, he automatically becomes its chairman."
,"Like the Speaker, the Deputy Speaker, while presiding over the"
,"House, cannot vote in the first instance; he can only exercise a"
,"casting vote in the case of a tie. Further, when a resolution for the"
,removal of the Deputy Speaker is under consideration of the
,"House, he cannot preside at the sitting of the House, though he"
,may be present.
,"When the Speaker presides over the House, the Deputy"
,Speaker is like any other ordinary member of the House. He can
,"speak in the House, participate in its proceedings and vote on any"
,question before the House.
,The Deputy Speaker is entitled to a regular salary and
,"allowance fixed by Parliament, and charged on the Consolidated"
,Fund of India.
,"Upto the 10th Lok Sabha, both the Speaker and the Deputy"
,Speaker were usually from the ruling party. Since the 11th Lok
,"Sabha, there has been a consensus that the Speaker comes from"
,the ruling party (or ruling alliance) and the post of Deputy Speaker
,goes to the main opposition party.
,"The Speaker and the Deputy Speaker, while assuming their"
,"offices, do not make and subscribe any separate oath or"
,affirmation.
,The institutions of Speaker and Deputy Speaker originated in
,India in 1921 under the provisions of the Government of India Act
,"of 1919 (Montague-Chelmsford Reforms). At that time, the"
,Speaker and the Deputy Speaker were called the President and
,Deputy President respectively and the same nomenclature
,"continued till 1947. Before 1921, the Governor-General of India"
,used to preside over the meetings of the Central Legislative
,"Council. In 1921, the Frederick Whyte and Sachidanand Sinha"
,were appointed by the Governor-General of India as the first
,Speaker and the first Deputy Speaker (respectively) of the central
,"legislative assembly. In 1925, Vithalbhai J. Patel became the first"
,Indian and the first elected Speaker of the central legislative
,assembly. The Government of India Act of 1935 changed the
,nomenclatures of President and Deputy President of the Central
,Legislative Assembly to the Speaker and Deputy Speaker
,"respectively. However, the old nomenclature continued till 1947 as"
,the federal part of the 1935 Act was not implemented. G.V.
,Mavalankar and Ananthasayanam Ayyangar had the distinction of
,being the first Speaker and the first Deputy Speaker (respectively)
,of the Lok Sabha. G.V. Mavalankar also held the post of Speaker
,in the Constituent Assembly (Legislative) as well as the
,provisional Parliament. He held the post of Speaker of Lok Sabha
,continuously for one decade from 1946 to 1956.
,
,Panel of Chairpersons of Lok Sabha
,"Under the Rules of Lok Sabha, the Speaker nominates from"
,amongst the members a panel of not more than ten chairpersons.
,Any of them can preside over the House in the absence of the
,Speaker or the Deputy Speaker. He has the same powers as the
,Speaker when so presiding. He holds office until a new panel of
,chairpersons is nominated. When a member of the panel of
,"chairpersons is also not present, any other person as determined"
,by House acts as the Speaker.
,It must be emphasised here that a member of the panel of
,"chairpersons cannot preside over the House, when the office of"
,"the Speaker or the Deputy Speaker is vacant. During such time,"
,the Speaker’s duties are to be performed by such member of the
,House as the President may appoint for the purpose. The
,"elections are held, as soon as possible, to fill the vacant posts."
,
,Speaker Pro Tem
,"As provided by the Constitution, the Speaker of the last Lok"
,Sabha vacates his office immediately before the first meeting of
,"the newly-elected Lok Sabha. Therefore, the President appoints a"
,"member of the Lok Sabha as the Speaker Pro Tem. Usually, the"
,seniormost member is selected for this. The President himself
,administers oath to the Speaker Pro Tem.
,The Speaker Pro Tem has all the powers of the Speaker. He
,presides over the first sitting of the newly-elected Lok Sabha. His
,main duty is to administer oath to the new members. He also
,enables the House to elect the new Speaker.
,"When the new Speaker is elected by the House, the office of"
,"the Speaker Pro Tem ceases to exist. Hence, this office is a"
,"temporary office, existing for a few days12 ."
,
,Chairman of Rajya Sabha
,The presiding officer of the Rajya Sabha is known as the
,Chairman. The vice-president of India is the ex-officio Chairman of
,the Rajya Sabha. During any period when the VicePresident acts
,"as President or discharges the functions of the President, he does"
,not perform the duties of the office of the Chairman of Rajya
,Sabha.
,The Chairman of the Rajya Sabha can be removed from his
,office only if he is removed from the office of the Vice-President.
,"As a presiding officer, the powers and functions of the Chairman"
,in the Rajya Sabha are similar to those of the Speaker in the Lok
,"Sabha. However, the Speaker has two special powers which are"
,not enjoyed by the Chairman:
,1. The Speaker decides whether a bill is a money bill or not
,and his decision on this question is final.
,2. The Speaker presides over a joint sitting of two Houses of
,Parliament.
,"Unlike the Speaker (who is a member of the House), the"
,"Chairman is not a member of the House. But like the Speaker, the"
,Chairman also cannot vote in the first instance. He too can cast a
,vote in the case of an equality of votes.
,The Vice-President cannot preside over a sitting of the Rajya
,Sabha as its Chairman when a resolution for his removal is under
,"consideration. However, he can be present and speak in the"
,"House and can take part in its proceedings, without voting, even"
,at such a time (while the Speaker can vote in the first instance
,when a resolution for his removal is under consideration of the
,Lok Sabha).
,"As in case of the Speaker, the salaries and allowances of the"
,Chairman are also fixed by the Parliament. They are charged on
,the Consolidated Fund of India and thus are not subject to the
,annual vote of Parliament.
,   During any period when the Vice-President acts as President or
,"discharges the functions of the President, he is not entitled to any"
,salary or allowance payable to the Chairman of the Rajya Sabha.
,But he is paid the salary and allowance of the President during
,such a time.
,
,Deputy Chairman of Rajya Sabha
,The Deputy Chairman is elected by the Rajya Sabha itself from
,amongst its members. Whenever the office of the Deputy
,"Chairman falls vacant, the Rajya Sabha elects another member to"
,fill the vacancy.
,The Deputy Chairman vacates his office in any of the following
,three cases:
,1. if he ceases to be a member of the Rajya Sabha;
,2. if he resigns by writing to the Chairman; and
,3. if he is removed by a resolution passed by a majority of all
,the then members of the Rajya Sabha. Such a resolution
,can be moved only after giving 14 days’ advance notice.
,The Deputy Chairman performs the duties of the Chairman’s
,office when it is vacant or when the Vice-President acts as
,President or discharges the functions of the President. He also
,acts as the Chairman when the latter is absent from the sitting of
,"the House. In both the cases, he has all the powers of the"
,Chairman.
,It should be emphasised here that the Deputy Chairman is not
,subordinate to the Chairman. He is directly responsible to the
,Rajya Sabha.
,"Like the Chairman, the Deputy Chairman, while presiding over"
,"the House, cannot vote in the first instance; he can only exercise"
,"a casting vote in the case of a tie. Further, when a resolution for"
,the removal of the Deputy Chairman is under consideration of the
,"House, he cannot preside over a sitting of the House, though he"
,may be present.
,"When the Chairman presides over the House, the Deputy"
,Chairman is like any other ordinary member of the House. He can
,"speak in the House, participate in its proceedings and vote on any"
,question before the House.
,"   Like the Chairman, the Deputy Chairman is also entitled to a"
,regular salary and allowance. They are fixed by Parliament and
,are charged on the Consolidated Fund of India.
,
,Panel of Vice-Chairpersons of Rajya Sabha
,"Under the Rules of Rajya Sabha, the Chairman nominates from"
,amongst the members a panel of vice-chairpersons. Any one of
,them can preside over the House in the absence of the Chairman
,or the Deputy Chairman. He has the same powers as the
,Chairman when so presiding. He holds office until a new panel of
,vice-chairpersons is nominated.
,When a member of the panel of vicechairpersons is also not
,"present, any other person as determined by the House acts as the"
,Chairman.
,It must be emphasised here that a member of the panel of vice-
,"chairpersons cannot preside over the House, when the office of"
,the Chairman or the Deputy Chairman is vacant. During such
,"time, the Chairman’s duties are to be performed by such member"
,of the House as the president may appoint for the purpose. The
,"elections are held, as soon as possible, to fill the vacant posts."
,
,Secretariat of Parliament
,Each House of Parliament has separate secretarial staff of its
,"own, though there can be some posts common to both the"
,Houses. Their recruitment and service conditions are regulated by
,Parliament. The secretariat of each House is headed by a
,secretary-general. He is a permanent officer and is appointed by
,the presiding officer of the House.
, LEADERS IN PARLIAMENT
,
,Leader of the House
,"Under the Rules of Lok Sabha, the ‘Leader of the House’ means"
,"the prime minister, if he is a member of the Lok Sabha, or a"
,minister who is a member of the Lok Sabha and is nominated by
,the prime minister to function as the Leader of the House. There is
,also a ‘Leader of the House’ in the Rajya Sabha. He is a minister
,and a member of the Rajya Sabha and is nominated by the prime
,minister to function as such. The leader of the house in either
,House is an important functionary and exercises direct influence
,on the conduct of business. He can also nominate a deputy leader
,of the House. The same functionary in USA is known as the
,‘majority leader’.
,
,Leader of the Opposition
,"In each House of Parliament, there is the ‘Leader of the"
,Opposition’. The leader of the largest Opposition party having not
,less than one-tenth seats of the total strength of the House is
,recognised as the leader of the Opposition in that House. In a
,"parliamentary system of government, the leader of the opposition"
,has a significant role to play. His main functions are to provide a
,constructive criticism of the policies of the government and to
,"provide an alternative government. Therefore, the leader of"
,Opposition in the Lok Sabha and the Rajya Sabha were accorded
,"statutory recognition in 1977. They are also entitled to the salary,"
,allowances and other facilities equivalent to that of a cabinet
,minister. It was in 1969 that an official leader of the opposition was
,recognised for the first time. The same functionary in USA is
,known as the ‘minority leader’.
,The British political system has an unique institution called the
,‘Shadow Cabinet’. It is formed by the Opposition party to balance
,the ruling cabinet and to prepare its members for future ministerial
,"offices. In this shadow cabinet, almost every member in the ruling"
,cabinet is ‘shadowed’ by a corresponding member in the
,opposition cabinet. This shadow cabinet serves as the ‘alternate
,cabinet’ if there is change of government. That is why Ivor
,Jennings described the leader of Opposition as the ‘alternative
,Prime Minister’. He enjoys the status of a minister and is paid by
,the government.
,
,Whip
,Though the offices of the leader of the House and the leader of
,"the Opposition are not mentioned in the Constitution of India, they"
,are mentioned in the Rules of the House and Parliamentary
,"Statute respectively. The office of ‘whip’, on the other hand, is"
,mentioned neither in the Constitution of India nor in the Rules of
,the House nor in a Parliamentary Statute. It is based on the
,conventions of the parliamentary government.
,"Every political party, whether ruling or Opposition has its own"
,whip in the Parliament. He is appointed by the political party to
,serve as an assistant floor leader. He is charged with the
,responsibility of ensuring the attendance of his party members in
,large numbers and securing their support in favour of or against a
,particular issue. He regulates and monitors their behaviour in the
,Parliament. The members are supposed to follow the directives
,"given by the whip. Otherwise, disciplinary action can be taken."
, SESSIONS OF PARLIAMENT
,
,Summoning
,The president from time to time summons each House of
,"Parliament to meet. But, the maximum gap between two sessions"
,"of Parliament cannot be more than six months. In other words, the"
,Parliament should meet at least twice ayear. There are usually
,"three sessions in a year, viz,"
,1. the Budget Session (February to May);
,2. the Monsoon Session (July to September); and
,3. the Winter Session (November to December).
,A ‘session’ of Parliament is the period spanning between the
,first sitting of a House and its prorogation (or dissolution in the
,"case of the Lok Sabha). During a session, the House meets"
,everyday to transact business. The period spanning between the
,prorogation of a House and its reassembly in a new session is
,called ‘recess’.
,
,Adjournment
,A session of Parliament consists of many meetings. Each meeting
,"of a day consists of two sittings, that is, a morning sitting from 11"
,am to 1 pm and post-lunch sitting from 2 pm to 6 pm. A sitting of
,Parliament can be terminated by adjournment or adjournment sine
,die or prorogation or dissolution (in the case of the Lok Sabha).
,An adjournment suspends the work in a sitting for a specified
,"time, which may be hours, days or weeks."
,
,Adjournment Sine Die
,Adjournment sine die means terminating a sitting of Parliament for
,"an indefinite period. In other words, when the House is adjourned"
,"without naming a day for reassembly, it is called adjournment sine"
,die. The power of adjournment as well as adjournment sine die
,lies with the presiding officer of the House. He can also call a
,sitting of the House before the date or time to which it has been
,adjourned or at any time after the House has been adjourned sine
,die.
,
,Prorogation
,The presiding officer (Speaker or Chairman) declares the House
,"adjourned sine die, when the business of a session is completed."
,"Within the next few days, the President issues a notification for"
,"prorogation of the session. However, the President can also"
,prorogue the House while in session.
,The specific differences between adjournment and prorogation
,are summarised in Table 22.1.
,
,Dissolution
,"Rajya Sabha, being a permanent House, is not subject to"
,dissolution. Only the Lok Sabha is subject to dissolution. Unlike a
,"prorogation, a dissolution ends the very life of the existing House,"
,and a new House is constituted after general elections are held.
,The dissolution of the Lok Sabha may take place in either of two
,ways:
,"1. Automatic dissolution, that is, on the expiry of its tenure of"
,five years or the terms as extended during a national
,emergency; or
,"2. Whenever the President decides to dissolve the House,"
,which he is authorised to do. Once the Lok Sabha is
,"dissolved before the completion of its normal tenure, the"
,dissolution is irrevocable.
,"When the Lok Sabha is dissolved, all business including bills,"
,"motions, resolutions, notices, petitions and so on pending before it"
,or its committees lapse. They (to be pursued further) must be
,"reintroduced in the newly-constituted Lok Sabha. However, some"
,pending bills and all pending assurances that are to be examined
,by the Committee on Government Assurances do not lapse on the
,dissolution of the Lok Sabha. The position with respect to lapsing
,of bills is as follows:
,1. A bill pending in the Lok Sabha lapses (whether originating
,in the Lok Sabha or transmitted to it by the Rajya Sabha).
,  2. A bill passed by the Lok Sabha but pending in the Rajya
,Sabha lapses.
,3. A bill not passed by the two Houses due to disagreement
,and if the president has notified the holding of a joint sitting
,"before the dissolution of Lok Sabha, does not lapse."
,4. A bill pending in the Rajya Sabha but not passed by the Lok
,Sabha does not lapse.
,5. A bill passed by both Houses but pending assent of the
,president does not lapse.
,6. A bill passed by both Houses but returned by the president
,for reconsideration of Houses does not lapse.
,
,Table 22.1 Adjournment vs Prorogation
,Adjournment                       Prorogation
,1. It only terminates a sitting   1. It not only terminates a
,and not a session of the          sitting but also a session of
,House.                            the House.
,2. It is done by presiding        2. It is done by the president of
,officer of the House.             India.
,3. It does not affect the bills or 3. It also does not affect the
,any other business pending         bills or any other business
,before the House and the           pending before the House.13
,"same can be resumed when           However, all pending"
,the House meets again.             notices (other than those for
,introducing bills) lapse on
,prorogation and fresh
,notices have to be given for
,"the next session. In Britain,"
,prorogation brings to an end
,all bills or any other
,business pending before the
,House.
,
,Quorum
,Quorum is the minimum number of members required to be
,present in the House before it can transact any business. It is one-
,tenth of the total number of members in each House including the
,presiding officer. It means that there must be at least 55 members
,present in the Lok Sabha and 25 members present in the Rajya
,"Sabha, if any business is to be conducted. If there is no quorum"
,"during a meeting of the House, it is the duty of the presiding"
,officer either to adjourn the House or to suspend the meeting until
,there is a quorum.
,
,Voting in House
,All matters at any sitting of either House or joint sitting of both the
,Houses are decided by a majority of votes of the members
,"present and voting, excluding the presiding officer. Only a few"
,"matters, which are specifically mentioned in the Constitution like"
,"impeachment of the President, amendment of the Constitution,"
,"removal of the presiding officers of the Parliament and so on,"
,"require special majority, not ordinary majority."
,The presiding officer of a House does not vote in the first
,"instance, but exercises a casting vote in the case of an equality of"
,votes. The proceedings of a House are to be valid irrespective of
,any unauthorised voting or participation or any vacancy in its
,membership.
,The following points can be noted with respect to the voting
,procedure in the Lok Sabha:
,"1. On the conclusion of a debate, the Speaker shall put the"
,question and invite those who are in favour of the motion to
,say ‘Aye’ and those against the motion to say ‘No’.
,"2. The Speaker shall then say: ‘I think the Ayes (or the Noes,"
,as the case may be) have it.’ If the opinion of the Speaker as
,"to the decision of a question is not challenged, he shall say"
,"twice: The Ayes (or the Noes, as the case may be) have it’"
,and the question before the House shall be determined
,accordingly.
,3. (a) If the opinion of the Speaker as to the decision of a
,"question is challenged, he shall order that the Lobby be"
,cleared.
,"(b) After the lapse of three minutes and thirty seconds, he"
,shall put the question a second time and declare
,whether in his opinion the ‘Ayes’ or the ‘Noes’ have it.
,"     (c) If the opinion so declared is again challenged, he shall"
,direct that the votes be recorded either by operating the
,automatic vote recorder or by using ‘Aye’ and ‘No’ Slips
,in the House or by the Members going into the Lobbies.
,"4. If in the opinion of the Speaker, the Division is unnecessarily"
,"claimed, he may ask the members who are for ‘Aye’ and"
,"those for ‘No’ respectively to rise in their places and, on a"
,"count being taken, he may declare the determination of the"
,"House. In such a case, the names of the voters shall not be"
,recorded.
,
,Language in Parliament
,The Constitution has declared Hindi and English to be the
,"languages for transacting business in the Parliament. However,"
,the presiding officer can permit a member to address the House in
,"his mother-tongue. In both the Houses, arrangements are made"
,for simultaneous translation. Though English was to be
,discontinued as a floor language after the expiration of fifteen
,"years from the commencement of the Constitution (that is, in"
,"1965), the Official Languages Act (1963) allowed English to be"
,continued along with Hindi.
,
,Rights of Ministers and Attorney General
,"In addition to the members of a House, every minister and the"
,attorney general of India have the right to speak and take part in
,"the proceedings of either House, any joint sitting of both the"
,Houses and any committee of Parliament of which he is a
,"member, without being entitled to vote. There are two reasons"
,underlying this constitutional provision:
,"1. A minister can participate in the proceedings of a House, of"
,"which he is not a member. In other words, a minister"
,belonging to the Lok Sabha can participate in the
,proceedings of the Rajya Sabha and vice-versa.
,"2. A minister, who is not a member of either House, can"
,participate in the proceedings of both the Houses. It should
,be noted here that a person can remain a minister for six
,"     months, without being a member of either House of"
,Parliament.
,
,Lame-duck Session
,"It refers to the last session of the existing Lok Sabha, after a new"
,Lok Sabha has been elected. Those members of the existing Lok
,Sabha who could not get re-elected to the new Lok Sabha are
,called lame-ducks.
, DEVICES OF PARLIAMENTARY PROCEEDINGS
,
,Question Hour
,The first hour of every parliamentary sitting is slotted for this.
,"During this time, the members ask questions and the ministers"
,"usually give answers. The questions are of three kinds, namely,"
,"starred, unstarred and short notice."
,A starred question (distinguished by an asterisk) requires an
,oral answer and hence supplementary questions can follow.
,"An unstarred question, on the other hand, requires a written"
,"answer and hence, supplementary questions cannot follow."
,A short notice question is one that is asked by giving a notice
,of less than ten days. It is answered orally.
,"In addition to the ministers, the questions can also be asked to"
,"the private members. Thus, a question may be addressed to a"
,private member if the subject matter of the question relates to
,"some Bill, resolution or other matter connected with the business"
,of the House for which that member is responsible. The procedure
,in regard to such question is the same as that followed in the case
,of questions addressed to a minister.
,"The list of starred, unstarred, short notice questions and"
,"questions to private members are printed in green, white, light"
,"pink and yellow colour, respectively, to distinguish them from one"
,another.
,
,Zero Hour
,"Unlike the question hour, the zero hour is not mentioned in the"
,Rules of Procedure. Thus it is an informal device available to the
,members of the Parliament to raise matters without any prior
,notice. The zero hour starts immediately after the question hour
,"and lasts until the agenda for the day (ie, regular business of the"
,"House) is taken up. In other words, the time gap between the"
,question hour and the agenda is known as zero hour. It is an
,Indian innovation in the field of parliamentary procedures and has
,been in existence since 1962.
,Motions
,No discussion on a matter of general public importance can take
,place except on a motion made with the consent of the presiding
,officer. The House expresses its decisions or opinions on various
,issues through the adoption or rejection of motions moved by
,either ministers or private members.
,The motions moved by the members to raise discussions on
,various matters fall into three principal categories:14
,1. Substantive Motion: It is a self-contained independent
,proposal dealing with a very important matter like
,impeachment of the President or removal of Chief Election
,Commissioner.
,2. Substitute Motion: It is a motion that is moved in substitution
,of an original motion and proposes an alternative to it. If
,"adopted by the House, it supersedes the original motion."
,"3. Subsidiary Motion: It is a motion that, by itself, has no"
,meaning and cannot state the decision of the House without
,reference to the original motion or proceedings of the House.
,It is divided into three sub-categories:
,(a) Ancillary Motion: It is used as the regular way of
,proceeding with various kinds of business.
,(b) Superseding Motion: It is moved in the course of debate
,on another issue and seeks to supersede that issue.
,(c) Amendment: It seeks to modify or substitute only a part
,of the original motion.
,
,Closure Motion
,It is a motion moved by a member to cut short the debate on a
,"matter before the House. If the motion is approved by the House,"
,debate is stopped forthwith and the matter is put to vote. There
,are four kinds of closure motions15 :
,(a) Simple Closure: It is one when a member moves that the
,‘matter having been sufficiently discussed be now put to
,vote’.
,"(b) Closure by Compartments: In this case, the clauses of a bill"
,or a lengthy resolution are grouped into parts before the
,commencement of the debate. The debate covers the part as
,a whole and the entire part is put to vote.
," (c) Kangaroo Closure: Under this type, only important clauses"
,are taken up for debate and voting and the intervening
,clauses are skipped over and taken as passed.
,(d) Guillotine Closure: It is one when the undiscussed clauses of
,a bill or a resolution are also put to vote along with the
,discussed ones due to want of time (as the time allotted for
,the discussion is over).
,
,Privilege Motion
,It is concerned with the breach of parliamentary privileges by a
,minister. It is moved by a member when he feels that a minister
,has committed a breach of privilege of the House or one or more
,of its members by withholding facts of a case or by giving wrong
,or distorted facts. Its purpose is to censure the concerned
,minister.
,
,Calling Attention Motion
,It is introduced in the Parliament by a member to call the attention
,"of a minister to a matter of urgent public importance, and to seek"
,an authoritative statement from him on that matter. Like the zero
,"hour, it is also an Indian innovation in the parliamentary procedure"
,"and has been in existence since 1954. However, unlike the zero"
,"hour, it is mentioned in the Rules of Procedure."
,
,Adjournment Motion
,It is introduced in the Parliament to draw attention of the House to
,"a definite matter of urgent public importance, and needs the"
,support of 50 members to be admitted. As it interrupts the normal
,"business of the House, it is regarded as an extraordinary device. It"
,involves an element of censure against the government and
,hence Rajya Sabha is not permitted to make use of this device.
,The discussion on an adjournment motion should last for not less
,than two hours and thirty minutes.
,The right to move a motion for an adjournment of the business
,of the House is subject to the following restrictions:
,"1. It should raise a matter which is definite, factual, urgent and"
,of public importance;
,2. It should not cover more than one matter;
,  3. It should be restricted to a specific matter of recent
,occurrence and should not be framed in general terms;
,4. It should not raise a question of privilege;
,5. It should not revive discussion on a matter that has been
,discussed in the same session;
,6. It should not deal with any matter that is under adjudication
,by court; and
,7. It should not raise any question that can be raised on a
,distinct motion.
,
,No-Confidence Motion
,Article 75 of the Constitution says that the council of ministers
,shall be collectively responsible to the Lok Sabha. It means that
,the ministry stays in office so long as it enjoys confidence of the
,"majority of the members of the Lok Sabha. In other words, the Lok"
,Sabha can remove the ministry from office by passing a no-
,confidence motion. The motion needs the support of 50 members
,to be admitted.
,
,Confidence Motion
,The motion of confidence has come up as a new procedural
,device to cope with the emerging situations of fractured mandates
,"resulting in hung parliament, minority governments and coalition"
,governments. The governments formed with wafer-thin majority
,have been called upon by the President to prove their majority on
,"the floor of the House. The government of the day, sometimes, on"
,"its own, seeks to prove its majority by moving a motion of"
,confidence and winning the confidence of the House. If the
,"confidence motion is negatived, it results in the fall of the"
,government15a.
,
,Censure Motion
,A censure motion is different from a no-confidence motion as
,shown in Table 22.2.
,
,Motion of Thanks
,The first session after each general election and the first session
,"of every fiscal year is addressed by the president. In this address,"
,the president outlines the policies and programmes of the
,government in the preceding year and ensuing year. This address
,"of the president, which corresponds to the ‘speech from the"
,"Throne in Britain’, is discussed in both the Houses of Parliament"
,on a motion called the ‘Motion of Thanks’. At the end of the
,"discussion, the motion is put to vote. This motion must be passed"
,"in the House. Otherwise, it amounts to the defeat of the"
,government. This inaugural speech of the president is an
,occasion available to the members of Parliament to raise
,discussions and debates to examine and criticise the government
,and administration for its lapses and failures.
,
,No-Day-Yet-Named Motion
,It is a motion that has been admitted by the Speaker but no date
,"has been fixed for its discussion. The Speaker, after considering"
,the state of business in the House and in consultation with the
,leader of the House or on the recommendation of the Business
,"Advisory Committee, allots a day or days or part of a day for the"
,discussion of such a motion.
,
,Dilatory Motion
,It is a motion for the adjournment of the debate on a bill / motion /
,resolution etc. or a motion to retard or delay the progress of a
,business under consideration of the House. It can be moved by a
,member at any time after a motion has been made. The debate
,on a dilatory motion must be restricted to the matter contained in
,such motion. If the Speaker is of the opinion that such a motion is
,"an abuse of the rules of the House, he may either forthwith put the"
,question thereon or decline to propose the question.
,
,Point of Order
,A member can raise a point of order when the proceedings of the
,House do not follow the normal rules of procedure. A point of
,order should relate to the interpretation or enforcement of the
,Rules of the House or such articles of the Constitution that
,regulate the business of the House and should raise a question
,that is within the cognizance of the Speaker. It is usually raised by
,an opposition member in order to control the government. It is an
,extraordinary device as it suspends the proceedings before the
,House. No debate is allowed on a point of order.
,
,Table 22.2 Censure Motion vs No Confidence Motion
,Censure Motion                    No-Confidence Motion
,1. It should state the reasons 1. It need not state the
,for its adoption in the Lok    reasons for its adoption in
,Sabha.                         the Lok Sabha.
,2. It can be moved against an 2. It can be moved against the
,individual minister or a      entire council of ministers
,group of ministers or the     only.
,entire council of ministers.
,3. It is moved for censuring 3. It is moved for ascertaining
,the council of ministers for the confidence of Lok
,specific    policies    and  Sabha in the council of
,actions.                     ministers.
,4. If it is passed in the Lok 4. If it is passed in the Lok
,"Sabha, the council of         Sabha, the council of"
,ministers need not resign     ministers must resign from
,from the office.              office.
,
,Half-an-Hour Discussion
,"It is meant for discussing a matter of sufficient public importance,"
,which has been subjected to a lot of debate and the answer to
,which needs elucidation on a matter of fact. The Speaker can allot
,three days in a week for such discussions. There is no formal
,motion or voting before the House.
,
,Short Duration Discussion
,It is also known as two-hour discussion as the time allotted for
,such a discussion should not exceed two hours. The members of
,the Parliament can raise such discussions on a matter of urgent
,public importance. The Speaker can allot two days in a week for
,such discussions. There is neither a formal motion before the
,house nor voting. This device has been in existence since 1953.
,Special Mention
,A matter which is not a point of order or which cannot be raised
,"during question hour, half-an hour discussion, short duration"
,"discussion or under adjournment motion, calling attention notice"
,or under any rule of the House can be raised under the special
,mention in the Rajya Sabha. Its equivalent procedural device in
,the Lok Sabha is known as ‘Notice (Mention) Under Rule 377’.
,
,Resolutions
,The members can move resolutions to draw the attention of the
,House or the government to matters of general public interest.
,The discussion on a resolution is strictly relevant to and within the
,scope of the resolution. A member who has moved a resolution or
,amendment to a resolution cannot withdraw the same except by
,leave of the House.
,Resolutions are classified into three categories:16
,1. Private Member’s Resolution: It is one that is moved by a
,private member (other than a minister). It is discussed only
,on alternate Fridays and in the afternoon sitting.
,2. Government Resolution: It is one that is moved by a
,minister. It can be taken up any day from Monday to
,Thursday.
,3. Statutory Resolution: It can be moved either by a private
,member or a minister. It is so called because it is always
,tabled in pursuance of a provision in the Constitution or an
,Act of Parliament.
,Resolutions are different from motions in the following respects:
,"“All resolutions come in the category of substantive motions,"
,"that is to say, every resolution is a particular type of motion. All"
,"motions need not necessarily be substantive. Further, all"
,"motions are not necessarily put to vote of the House, whereas"
,all the resolutions are required to be voted upon.”17
,
,Youth Parliament
,The scheme of Youth Parliament was started on the
,recommendation of the Fourth All India Whips Conference. Its
,objectives are:
,1. to acquaint the younger generations with practices and
,procedures of Parliament;
,2. to imbibe the spirit of discipline and tolerance cultivating
,character in the minds of youth; and
,3. to inculcate in the student community the basic values of
,democracy and to enable them to acquire a proper
,perspective on the functioning of democratic institutions.
,The ministry of parliamentary affairs provides necessary
,training and encouragement to the states in introducing the
,scheme.
, LEGISLATIVE PROCEDURE IN PARLIAMENT
,The legislative procedure is identical in both the Houses of
,Parliament. Every bill has to pass through the same stages in
,each House. A bill is a proposal for legislation and it becomes an
,act or law when duly enacted.
,Bills introduced in the Parliament are of two kinds: public bills
,and private bills (also known as government bills and private
,members’ bills respectively). Though both are governed by the
,same general procedure and pass through the same stages in the
,"House, they differ in various respects as shown in Table 22.3."
,The bills introduced in the Parliament can also be classified into
,four categories:
,"1. Ordinary bills, which are concerned with any matter other"
,than financial subjects.
,"2. Money bills, which are concerned with the financial matters"
,"like taxation, public expenditure, etc."
,"3. Financial bills, which are also concerned with financial"
,matters (but are different from money bills).
,"4. Constitution amendment bills, which are concerned with the"
,amendment of the provisions of the Constitution.
,The Constitution has laid down separate procedures for the
,enactment of all the four types of bills. The procedures with regard
,"to ordinary bills, money bills and financial bills are explained here."
,The procedure with regard to Constitution amendment bills is
,explained in detail in Chapter 10.
,
,Ordinary Bills
,Every ordinary bill has to pass through the following five stages in
,the Parliament before it finds a place on the Statute Book:
,
,1. First Reading
,An ordinary bill can be introduced in either House of Parliament.
,Such a bill can be introduced either by a minister or by any other
,member. The member who wants to introduce the bill has to ask
,for the leave of the House. When the House grants leave to
,"introduce the bill, the mover of the bill introduces it by reading its"
,title and objectives. No discussion on the bill takes place at this
,"stage. Later, the bill is published in the Gazette of India. If a bill is"
,"published in the Gazette before its introduction, leave of the"
,House to introduce the bill is not necessary.18 The introduction of
,the bill and its publication in the Gazette constitute the first
,reading of the bill.
,
,Table 22.3 Public Bill vs Private Bill
,Public Bill                          Private Bill
,1. It is introduced in the          1. It is introduced by any
,Parliament by a minister.           member of Parliament other
,than a minister.
,2. It reflects of the policies of   2. It reflects the stand of
,the government (ruling              opposition party on public
,party).                             matter.
,3. It has greater chance to be 3. It has lesser chance to be
,approved by the Parliament.    approved by the Parliament.
,4. Its rejection by the House       4. Its rejection by the House
,amounts to the expression           has no implication on the
,of want of parliamentary            parliamentary confidence in
,confidence in the                   the government or its
,government and may lead             resignation.
,to its resignation.
,5. Its introduction in the House    5. Its introduction in the House
,requires seven days’ notice.        requires one month’s notice.
,6. It is drafted by the             6. Its drafting is the
,concerned department in             responsibility of the member
,consultation with the law           concerned.
,department.
,
,2. Second Reading
,"During this stage, the bill receives not only the general but also"
,"the detailed scrutiny and assumes its final shape. Hence, it forms"
,"the most important stage in the enactment of a bill. In fact, this"
,"stage involves three more sub-stages, namely, stage of general"
,"discussion, committee stage and consideration stage."
,
,(a) Stage of General Discussion
,The printed copies of the bill are distributed to all the members.
,The principles of the bill and its provisions are discussed
,"generally, but the details of the bill are not discussed."
,"At this stage, the House can take any one of the following four"
,actions:
,(i) It may take the bill into consideration immediately or on
,some other fixed date;
,(ii) It may refer the bill to a select committee of the House;
,(iii) It may refer the bill to a joint committee of the two Houses;
,and
,(iv) It may circulate the bill to elicit public opinion.
,A Select Committee consists of members of the House where
,the bill has originated and a joint committee consists of members
,of both the Houses of Parliament.
,
,(b) Committee Stage
,The usual practice is to refer the bill to a select committee of the
,"House. This committee examines the bill thoroughly and in detail,"
,"clause by clause. It can also amend its provisions, but without"
,altering the principles underlying it. After completing the scrutiny
,"and discussion, the committee reports the bill back to the House."
,
,(c) Consideration Stage
,"The House, after receiving the bill from the select committee,"
,considers the provisions of the bill clause by clause. Each clause
,is discussed and voted upon separately. The members can also
,"move amendments and if accepted, they become part of the bill."
,
,3. Third Reading
,"At this stage, the debate is confined to the acceptance or rejection"
,"of the bill as a whole and no amendments are allowed, as the"
,general principles underlying the bill have already been
,scrutinised during the stage of second reading. If the majority of
,"members present and voting accept the bill, the bill is regarded as"
,"passed by the House. Thereafter, the bill is authenticated by the"
,presiding officer of the House and transmitted to the second
,House for consideration and approval. A bill is deemed to have
,been passed by the Parliament only when both the Houses have
,"agreed to it, either with or without amendments."
,
,4. Bill in the Second House
,"In the second House also, the bill passes through all the three"
,"stages, that is, first reading, second reading and third reading."
,There are four alternatives before this House:
,"(a) it may pass the bill as sent by the first house (ie, without"
,amendments);
,(b) it may pass the bill with amendments and return it to the first
,House for reconsideration;
,(c) it may reject the bill altogether; and
,(d) it may not take any action and thus keep the bill pending.
,If the second House passes the bill without any amendments or
,the first House accepts the amendments suggested by the second
,"House, the bill is deemed to have been passed by both the"
,Houses and the same is sent to the president for his assent. On
,"the other hand, if the first House rejects the amendments"
,suggested by the second House or the second House rejects the
,bill altogether or the second House does not take any action for
,"six months, a deadlock is deemed to have taken place. To resolve"
,"such a deadlock, the president can summon a joint sitting of the"
,two Houses. If the majority of members present and voting in the
,"joint sitting approves the bill, the bill is deemed to have been"
,passed by both the Houses.
,
,5. Assent of the President
,Every bill after being passed by both Houses of Parliament either
,"singly or at a joint sitting, is presented to the president for his"
,assent. There are three alternatives before the president:
,(a) he may give his assent to the bill; or
,(b) he may withhold his assent to the bill; or
,(c) he may return the bill for reconsideration of the Houses.
,"If the president gives his assent to the bill, the bill becomes an"
,act and is placed on the Statute Book. If the President withholds
,"his assent to the bill, it ends and does not become an act. If the"
,President returns the bill for reconsideration and if it is passed by
,both the Houses again with or without amendments and
,"presented to the President for his assent, the president must give"
,"his assent to the bill. Thus, the President enjoys only a"
,“suspensive veto.”19
,
,Money Bills
,Article 110 of the Constitution deals with the definition of money
,bills. It states that a bill is deemed to be a money bill if it contains
,‘only’ provisions dealing with all or any of the following matters:
,"1. The imposition, abolition, remission, alteration or regulation"
,of any tax;
,2. The regulation of the borrowing of money by the Union
,government;
,3. The custody of the Consolidated Fund of India or the
,"contingency fund of India, the payment of moneys into or the"
,withdrawal of money from any such fund;
,4. The appropriation of money out of the Consolidated Fund of
,India;
,5. Declaration of any expenditure charged on the Consolidated
,Fund of India or increasing the amount of any such
,expenditure;
,6. The receipt of money on account of the Consolidated Fund
,of India or the public account of India or the custody or issue
,"of such money, or the audit of the accounts of the Union or"
,of a state; or
,7. Any matter incidental to any of the matters specified above.
,"However, a bill is not to be deemed to be a money bill by"
,reason only that it provides for:
,"1. the imposition of fines or other pecuniary penalties, or"
,2. the demand or payment of fees for licenses or fees for
,services rendered; or
,"3. the imposition, abolition, remission, alteration or regulation"
,of any tax by any local authority or body for local purposes.
,"If any question arises whether a bill is a money bill or not, the"
,decision of the Speaker of the Lok Sabha is final. His decision in
,this regard cannot be questioned in any court of law or in the
,either House of Parliament or even the president. When a money
,bill is transmitted to the Rajya Sabha for recommendation and
,"presented to the president for assent, the Speaker endorses it as"
,a money bill.
,The Constitution lays down a special procedure for the passing
,of money bills in the Parliament. A money bill can only be
,introduced in the Lok Sabha and that too on the recommendation
,of the president. Every such bill is considered to be a government
,bill and can be introduced only by a minister.
,"After a money bill is passed by the Lok Sabha, it is transmitted"
,to the Rajya Sabha for its consideration. The Rajya Sabha has
,restricted powers with regard to a money bill. It cannot reject or
,amend a money bill. It can only make the recommendations. It
,"must return the bill to the Lok Sabha within 14 days, whether with"
,or without recommendations. The Lok Sabha can either accept or
,reject all or any of the recommendations of the Rajya Sabha.
,"If the Lok Sabha accepts any recommendation, the bill is then"
,deemed to have been passed by both the Houses in the modified
,"form. If the Lok Sabha does not accept any recommendation, the"
,bill is then deemed to have passed by both the Houses in the form
,originally passed by the Lok Sabha without any change.
,If the Rajya Sabha does not return the bill to the Lok Sabha
,"within 14 days, the bill is deemed to have been passed by both"
,"the Houses in the form originally passed by the Lok Sabha. Thus,"
,the Lok Sabha has more powers than Rajya Sabha with regard to
,"a money bill. On the other hand, both the Houses have equal"
,powers with regard to an ordinary bill.
,"Finally, when a money bill is presented to the president, he may"
,either give his assent to the bill or withhold his assent to the bill
,but cannot return the bill for reconsideration of the Houses.
,"Normally, the president gives his assent to a money bill as it is"
,introduced in the Parliament with his prior permission.
,Table 22.4 shows the differences between the procedures for
,the enactment of ordinary bills and money bills.
,
,Financial Bills
,"Financial bills are those bills that deal with fiscal matters, that is,"
,"revenue or expenditure. However, the Constitution uses the term"
,‘financial bill’ in a technical sense. Financial bills are of three
,kinds:
,   1. Money bills–Article 110
,2. Financial bills (I)–Article 117 (1)
,3. Financial bills (II)–Article 117 (3)
,This classification implies that money bills are simply a species
,"of financial bills. Hence, all money bills are financial bills but all"
,financial bills are not money bills. Only those financial bills are
,money bills which contain exclusively those matters which are
,mentioned in Article 110 of the Constitution. These are also
,certified by the Speaker of Lok Sabha as money bills. The
,"financial bills (I) and (II), on the other hand, have been dealt with"
,in Article 117 of the Constitution.
,
,Table 22.4 Ordinary Bill vs Money Bill
,Ordinary Bill                      Money Bill
,1. It can be introduced either in 1. It can be introduced only in
,the Lok Sabha or the Rajya        the Lok Sabha and not in
,Sabha.                            the Rajya Sabha.
,2. It can be introduced either     2. It can be introduced only by
,by a minister or by a private      a minister.
,member.
,3. It is introduced without the    3. It can be introduced only on
,recommendation of the              the recommendation of the
,president.                         President.
,4. It can be amended or            4. It cannot be amended or
,rejected by the Rajya              rejected by the Rajya
,Sabha.                             Sabha. The Rajya Sabha
,should return the bill with or
,"without recommendations,"
,which may be accepted or
,rejected by the Lok Sabha.
,5. It can be detained by the 5. It can be detained by the
,Rajya Sabha for a maximum    Rajya Sabha for a maximum
,period of six months.        period of 14 days only.
,6. It does not require the         6. It requires the certification of
,certification of the Speaker       the Speaker when
,    when transmitted to the            transmitted to the Rajya
,Rajya Sabha (if it has             Sabha.
,originated in the Lok
,Sabha).
,7. It is sent for the President’s 7. It is sent for the President’s
,assent only after being           assent even if it is approved
,approved by both the              by only Lok Sabha. There is
,Houses. In case of a              no chance of any
,deadlock due to                   disagreement between the
,"disagreement between the          two Houses and hence,"
,"two Houses, a joint sitting of    there is no provision of joint"
,both the houses can be            sitting of both the Houses in
,summoned by the president         this regard.
,to resolve the deadlock.
,8. Its defeat in the Lok Sabha     8. Its defeat in the Lok Sabha
,may lead to the resignation        leads to the resignation of
,of the government (if it is        the government.
,introduced by a minister).
,"9. It can be rejected,             9. It can be rejected or"
,"approved, or returned for          approved but cannot be"
,reconsideration by the             returned for reconsideration
,President.                         by the President.
,
,Financial Bills (I)
,A financial bill (I) is a bill that contains not only any or all the
,"matters mentioned in Article 110, but also other matters of general"
,"legislation. For instance, a bill that contains a borrowing clause,"
,"but does not exclusively deal with borrowing. In two respects, a"
,financial bill (I) is similar to a money bill–(a) both of them can be
,"introduced only in the Lok Sabha and not in the Rajya Sabha, and"
,(b) both of them can be introduced only on the recommendation of
,"the president. In all other respects, a financial bill (I) is governed"
,by the same legislative procedure applicable to an ordinary bill.
,"Hence, it can be either rejected or amended by the Rajya Sabha"
,(except that an amendment other than for reduction or abolition of
,a tax cannot be moved in either House without the
,"recommendation of the president i.e., the recommendation of"
,president is not required for moving an amendment making
,provision for the reduction or aboli-sition of a tax). In case of a
,"disagreement between the two Houses over such a bill, the"
,president can summon a joint sitting of the two Houses to resolve
,"the deadlock. When the bill is presented to the President, he can"
,either give his assent to the bill or withhold his assent to the bill or
,return the bill for reconsideration of the Houses.
,
,Financial Bills (II)
,A financial bill (II) contains provisions involving expenditure from
,"the Consolidated Fund of India, but does not include any of the"
,matters mentioned in Article 110. It is treated as an ordinary bill
,"and in all respects, it is governed by the same legislative"
,procedure which is applicable to an ordinary bill. The only special
,feature of this bill is that it cannot be passed by either House of
,Parliament unless the President has recommended to that House
,"the consideration of the bill. Hence, financial bill (II) can be"
,introduced in either House of Parliament and recommendation of
,"the President is not necessary for its introduction. In other words,"
,the recommendation of the President is not required at the
,introduction stage but is required at the consideration stage. It can
,be either rejected or amended by either House of Parliament. In
,"case of a disagreement between the two Houses over such a bill,"
,the President can summon a joint sitting of the two Houses to
,"resolve the deadlock. When the bill is presented to the President,"
,he can either give his assent to the bill or withhold his assent to
,the bill or return the bill for reconsideration of the Houses.
, JOINT SITTING OF TWO HOUSES
,Joint sitting is an extraordinary machinery provided by the
,Constitution to resolve a deadlock between the two Houses over
,the passage of a bill. A deadlock is deemed to have taken place
,under any one of the following three situations after a bill has
,been passed by one House and transmitted to the other House:
,1. if the bill is rejected by the other House;
,2. if the Houses have finally disagreed as to the amendments
,to be made in the bill; or
,3. if more than six months have elapsed from the date of the
,receipt of the bill by the other House without the bill being
,passed by it.
,"In the above three situations, the president can summon both"
,the Houses to meet in a joint sitting for the purpose of deliberating
,and voting on the bill. It must be noted here that the provision of
,joint sitting is applicable to ordinary bills or financial bills only and
,not to money bills or Constitutional amendment bills. In the case
,"of a money bill, the Lok Sabha has overriding powers, while a"
,Constitutional amendment bill must be passed by each House
,separately.
,"In reckoning the period of six months, no account can be taken"
,of any period during which the other House (to which the bill has
,been sent) is prorogued or adjourned for more than four
,consecutive days.
,If the bill (under dispute) has already lapsed due to the
,"dissolution of the Lok Sabha, no joint sitting can be summoned."
,"But, the joint sitting can be held if the Lok Sabha is dissolved after"
,the President has notified his intention to summon such a sitting
,(as the bill does not lapse in this case). After the President notifies
,"his intention to summon a joint sitting of the two Houses, none of"
,the Houses can proceed further with the bill.
,The Speaker of Lok Sabha presides over a joint sitting of the
,"two Houses and the Deputy Speaker, in his absence. If the"
,"Deputy Speaker is also absent from a joint sitting, the Deputy"
,"Chairman of Rajya Sabha presides. If he is also absent, such"
,other person as may be determined by the members present at
,"the joint sitting, presides over the meeting. It is clear that the"
,Chairman of Rajya Sabha does not preside over a joint sitting as
,he is not a member of either House of Parliament.
,The quorum to constitute a joint sitting is one-tenth of the total
,number of members of the two Houses. The joint sitting is
,governed by the Rules of Procedure of Lok Sabha and not of
,Rajya Sabha.
,If the bill in dispute is passed by a majority of the total number
,of members of both the Houses present and voting in the joint
,"sitting, the bill is deemed to have been passed by both the"
,"Houses. Normally, the Lok Sabha with greater number wins the"
,battle in a joint sitting.
,"The Constitution has specified that at a joint sitting, new"
,amendments to the bill cannot be proposed except in two cases:
,1. those amendments that have caused final disagreement
,between the Houses; and
,2. those amendments that might have become necessary due
,to the delay in the passage of the bill.
,"Since 1950, the provision regarding the joint sitting of the two"
,Houses has been invoked only thrice. The bills that have been
,passed at joint sittings are:
,"1. Dowry Prohibition Bill, 1960.20"
,2. Banking Service Commission (Repeal)
,"Bill, 1977.21"
,"3. Prevention of Terrorism Bill, 2002.22"
, BUDGET IN PARLIAMENT
,The Constitution refers to the budget as the ‘annual financial
,"statement’. In other words, the term ‘budget’ has nowhere been"
,used in the Constitution. It is the popular name for the ‘annual
,financial statement’ that has been dealt with in Article 112 of the
,Constitution.
,The budget is a statement of the estimated receipts and
,"expenditure of the Government of India in a financial year, which"
,begins on 1 April and ends on 31 March of the following year.
,"In addition to the estimates of receipts and expenditure, the"
,"budget contains certain other elements. Overall, the budget"
,contains the following:
,1. Estimates of revenue and capital receipts;
,2. Ways and means to raise the revenue;
,3. Estimates of expenditure;
,4. Details of the actual receipts and expenditure of the closing
,financial year and the reasons for any deficit or surplus in
,that year; and
,"5. Economic and financial policy of the coming year, that is,"
,"taxation proposals, prospects of revenue, spending"
,programme and introduction of new schemes/projects.
,"Till 2017, the Government of India had two budgets, namely,"
,the Railway Budget and the General Budget. While the former
,consisted of the estimates of receipts and expenditures of only the
,"Ministry of Railways, the latter consisted of the estimates of"
,receipts and expenditure of all the ministries of the Government of
,India (except the railways).
,The Railway Budget was separated from the General Budget in
,1924 on the recommendations of the Acworth Committee Report
,(1921). The reasons or objectives of this separation were as
,follows:
,1. To introduce flexibility in railway finance.
,2. To facilitate a business approach to the railway policy.
,3. To secure stability of the general revenues by providing an
,assured annual contribution from railway revenues.
,   4. To enable the railways to keep their profits for their own
,development (after paying a fixed annual contribution to the
,general revenues).
,"In 2017, the Central Government merged the railway budget"
,"into the general budget. Hence, there is now only one budget for"
,"the Government of India i.e., Union Budget."
,
,Constitutional Provisions
,The Constitution of India contains the following provisions with
,regard to the enactment of budget:
,1. The President shall in respect of every financial year cause
,to be laid before both the Houses of Parliament a statement
,of estimated receipts and expenditure of the Government of
,India for that year.
,2. No demand for a grant shall be made except on the
,recommendation of the President.
,3. No money shall be withdrawn from the Consolidated Fund of
,India except under appropriation made by law.
,4. No money bill imposing tax shall be introduced in the
,"Parliament except on the recommendation of the President,"
,and such a bill shall not be introduced in the Rajya Sabha.
,5. No tax shall be levied or collected except by authority of law.
,6. Parliament can reduce or abolish a tax but cannot increase
,it.
,7. The Constitution has also defined the relative roles or
,position of both the Houses of Parliament with regard to the
,enactment of the budget in the following way:
,(a) A money bill or finance bill dealing with taxation cannot
,be introduced in the Rajya Sabha–it must be introduced
,only in the Lok Sabha.
,(b) The Rajya Sabha has no power to vote on the demand
,for grants; it is the exclusive privilege of the Lok Sabha.
,(c) The Rajya Sabha should return the Money bill (or
,Finance bill) to the Lok Sabha within fourteen days. The
,Lok Sabha can either accept or reject the
,recommendations made by Rajya Sabha in this regard.
,8. The estimates of expenditure embodied in the budget shall
,show separately the expenditure charged on the
,     Consolidated Fund of India and the expenditure made from
,the Consolidated Fund of India.
,9. The budget shall distinguish expenditure on revenue
,account from other expenditure.
,10. The expenditure charged on the Consolidated Fund of India
,"shall not be submitted to the vote of Parliament. However, it"
,can be discussed by the Parliament.
,
,Charged Expenditure
,The budget consists of two types of expen-diture–the expenditure
,‘charged’ upon the Consolidated Fund of India and the
,expenditure ‘made’ from the Consolidated Fund of India. The
,"charged expenditure is non-votable by the Parliament, that is, it"
,"can only be discussed by the Parliament, while the other type has"
,to be voted by the Parliament. The list of the charged expenditure
,is as follows:
,1. Emoluments and allowances of the President and other
,expenditure relating to his office.
,2. Salaries and allowances of the Chairman and the Deputy
,Chairman of the Rajya Sabha and the Speaker and the
,Deputy Speaker of the Lok Sabha.
,"3. Salaries, allowances and pensions of the judges of the"
,Supreme Court.
,4. Pensions of the judges of high courts.
,"5. Salary, allowances and pension of the Comptroller and"
,Auditor General of India.
,"6. Salaries, allowances and pension of the chairman and"
,members of the Union Public Service Commission.
,"7. Administrative expenses of the Supreme Court, the office of"
,the Comptroller and Auditor General of India and the Union
,"Public Service Commission including the salaries,"
,allowances and pensions of the persons serving in these
,offices.
,8. The debt charges for which the Government of India is
,"liable, including interest, sinking fund charges and"
,redemption charges and other expenditure relating to the
,raising of loans and the service and redemption of debt.
,"  9. Any sum required to satisfy any judgement, decree or award"
,of any court or arbitral tribunal.
,10. Any other expenditure declared by the Parliament to be so
,charged.
,
,Stages in Enactment
,The budget goes through the following six stages in the
,Parliament:
,1. Presentation of budget.
,2. General discussion.
,3. Scrutiny by departmental committees.
,4. Voting on demands for grants.
,5. Passing of appropriation bill.
,6. Passing of finance bill.
,
,1. Presentation of Budget
,"Conventionally, the budget is presented to the Lok Sabha by the"
,"finance minister on the last working day of February. Since 2017,"
,the presentation of the budget has been advanced to 1st of
,February.
,The Budget can also be presented to the House in two or more
,"parts and when such presentation takes place, each part shall be"
,"dealt with as if it were the budget. Further, there shall be no"
,discussion of the budget on the day on which it is presented to the
,House.
,The finance minister presents the budget with a speech known
,as the ‘budget speech’. At the end of the speech in the Lok
,"Sabha, the budget is laid before the Rajya Sabha, which can only"
,discuss it and has no power to vote on the demands for grants.
,The budget documents presented to the Parliament comprise
,of the following :
,(i) Budget Speech
,(ii) Annual Financial Statement
,(iii) Demands for Grants
,(iv) Appropriation Bill
,(v) Finance Bill
,(vi) Statements mandated under the FRBM Act:
,(a) Macro-Economic Framework Statement
,       (b) Fiscal Policy Strategy Statement
,(c) Medium Term Fiscal Policy Statement
,(vii) Expenditure Budget
,(viii) Receipts Budget
,(ix) Expenditure Profile
,(x) Memorandum Explaining the Provisions in the Finance Bill
,(xi) Budget at a Glance
,(xii) Outcome Budget
,"Earlier, the Economic Survey also used to be presented to the"
,"Parliament along with the budget. Now, it is presented one day or"
,a few days before the presentation of the budget. This report is
,prepared by the finance ministry and indicates the status of the
,national economy.
,
,2. General Discussion
,The general discussion on budget begins a few days after its
,presentation. It takes place in both the Houses of Parliament and
,lasts usually for three to four days.
,"During this stage, the Lok Sabha can discuss the budget as a"
,whole or on any question of principle involved therein but no cut
,motion can be moved nor can the budget be submitted to the vote
,of the House. The finance minister has a general right of reply at
,the end of the discussion.
,
,3. Scrutiny by Departmental Committees
,"After the general discussion on the budget is over, the Houses are"
,"adjourned for about three to four weeks. During this gap period,"
,the 24 departmental standing committees of Parliament examine
,and discuss in detail the demands for grants of the concerned
,ministers and prepare reports on them. These reports are
,submitted to both the Houses of Parliament for consideration.
,The standing committee system established in 1993 (and
,expanded in 2004) makes parliamentary financial control over
,"ministries much more detailed, close, in-depth and"
,comprehensive.
,
,4. Voting on Demands for Grants
,In the light of the reports of the departmental standing
,"committees, the Lok Sabha takes up voting of demands for"
,grants. The demands are presented ministrywise. A demand
,becomes a grant after it has been duly voted.
,"Two points should be noted in this context. One, the voting of"
,"demands for grants is the exclusive privilege of the Lok Sabha,"
,"that is, the Rajya Sabha has no power of voting the demands."
,"Second, the voting is confined to the votable part of the budget–"
,the expenditure charged on the Consolidated Fund of India is not
,submitted to the vote (it can only be discussed).
,Each demand is voted separately by the Lok Sabha. During this
,"stage, the members of Parliament can discuss the details of the"
,budget. They can also move motions to reduce any demand for
,"grant. Such motions are called as ‘cut motion’, which are of three"
,kinds:
,
,(a) Policy Cut Motion
,It represents the disapproval of the policy underlying the demand.
,It states that the amount of the demand be reduced to Re 1. The
,members can also advocate an alternative policy.
,
,(b) Economy Cut Motion
,It represents the economy that can be affected in the proposed
,expenditure. It states that the amount of the demand be reduced
,by a specified amount (which may be either a lumpsum reduction
,in the demand or ommission or reduction of an item in the
,demand).
,
,(c) Token Cut Motion
,It ventilates a specific grievance that is within the sphere of
,responsibility of the Government of India. It states that the amount
,of the demand be reduced by ₹100.
,"A cut motion, to be admissible, must satisfy the following"
,conditions:
,(i) It should relate to one demand only.
,(ii) It should be clearly expressed and should not contain
,arguments or defamatory statements.
,(iii) It should be confined to one specific matter.
,(iv) It should not make suggestions for the amendment or repeal
,of existing laws.
,(v) It should not refer to a matter that is not primarily the
,       concern of Union government.
,(vi) It should not relate to the expenditure charged on the
,Consolidated Fund of India.
,(vii) It should not relate to a matter that is under adjudication by a
,court.
,(viii) It should not raise a question of privilege.
,(ix) It should not revive discussion on a matter on which a
,decision has been taken in the same session.
,(x) It should not relate to a trivial matter.
,(xi) It should not reflect on the character or conduct of any
,person whose conduct can only be challenged on a
,substantive motion.
,(xii) It should not anticipate a matter which has been previously
,appointed for consideration in the same session.
,(xiii) It should not seek to raise a discussion on a matter pending
,before any statutory tribunal or statutory authority performing
,judicial or quasi-judicial functions or any commission or court
,of enquiry.
,The significance of a cut motion lies in: (a) facilitating the
,initiation of concentrated discussion on a specific demand for
,grant; and (b) upholding the principle of responsible government
,"by probing the activities of the government. However, the cut"
,motion do not have much utility in practice. They are only moved
,and discussed in the House but not passed as the government
,enjoys majority support. Their passage by the Lok Sabha amounts
,to the expressions of want of parliamentary confidence in the
,government and may lead to its resignation.
,On the last day of the days allotted for discussion and voting on
,"the demands for grants, the Speaker puts all the remaining"
,demands to vote and disposes them whether they have been
,discussed by the members or not. This is known as ‘guillotine’.
,
,5. Passing of Appropriation Bill
,The Constitution states that ‘no money shall be withdrawn from
,the Consolidated Fund of India except under appropriation made
,"by law’. Accordingly, an appropriation bill is introduced to provide"
,"for the appropriation, out of the Consolidated Fund of India, all"
,money required to meet:
,  (a) The grants voted by the Lok Sabha.
,(b) The expenditure charged on the Consolidated Fund of India.
,No such amendment can be proposed to the appropriation bill
,in either house of the Parliament that will have the effect of
,"varying the amount or altering the destination of any grant voted,"
,or of varying the amount of any expenditure charged on the
,Consolidated Fund of India.
,The Appropriation Bill becomes the Appropriation Act after it is
,assented to by the President. This act authorises (or legalises) the
,payments from the Consolidated Fund of India. This means that
,the government cannot withdraw money from the Consolidated
,Fund of India till the enactment of the appropriation bill. This takes
,time and usually goes on till the end of April. But the government
,needs money to carry on its normal activities after 31 March (the
,"end of the financial year). To overcome this functional difficulty, the"
,Constitution has authorised the Lok Sabha to make any grant in
,advance in respect to the estimated expenditure for a part of the
,"financial year, pending the completion of the voting of the"
,demands for grants and the enactment of the appropriation bill.
,This provision is known as the ‘vote on account’. It is passed (or
,granted) after the general discussion on budget is over. It is
,generally granted for two months for an amount equivalent to one-
,sixth of the total estimation.
,
,6. Passing of Finance Bill
,The Finance Bill is introduced to give effect to the financial
,proposals of the Government of India for the following year. It is
,subjected to all the conditions applicable to a Money Bill. Unlike
,"the Appropriation Bill, the amendments (seeking to reject or"
,reduce a tax) can be moved in the case of finance bill.
,"According to the Provisional Collection of Taxes Act of 1931,"
,"the Finance Bill must be enacted (i.e., passed by the Parliament"
,and assented to by the president) within 75 days.
,The Finance Act legalises the income side of the budget and
,completes the process of the enactment of the budget.
,
,Other Grants
,In addition to the budget that contains the ordinary estimates of
,"income and expenditure for one financial year, various other"
,grants are made by the Parliament under extraordinary or special
,circumstances:
,
,Supplementary Grant
,It is granted when the amount authorised by the Parliament
,through the appropriation act for a particular service for the
,current financial year is found to be insufficient for that year.
,
,Additional Grant
,It is granted when a need has arisen during the current financial
,year for additional expenditure upon some new service not
,contemplated in the budget for that year.
,
,Excess Grant
,It is granted when money has been spent on any service during a
,financial year in excess of the amount granted for that service in
,the budget for that year. It is voted by the Lok Sabha after the
,financial year. Before the demands for excess grants are
,"submitted to the Lok Sabha for voting, they must be approved by"
,the Public Accounts Committee of Parliament.
,
,Vote of Credit
,It is granted for meeting an unexpected demand upon the
,"resources of India, when on account of the magnitude or the"
,"indefinite character of the service, the demand cannot be stated"
,"with the details ordinarily given in a budget. Hence, it is like a"
,blank cheque given to the Executive by the Lok Sabha.
,
,Exceptional Grant
,It is granted for a special purpose and forms no part of the current
,service of any financial year.
,
,Token Grant
,It is granted when funds to meet the proposed expenditure on a
,new service can be made available by reappropriation. A demand
,for the grant of a token sum (of Re 1) is submitted to the vote of
,"the Lok Sabha and if assented, funds are made available."
,Reappropriation involves transfer of funds from one head to
,another. It does not involve any additional expenditure.
,"Supplementary, additional, excess and exceptional grants and"
,vote of credit are regulated by the same procedure which is
,applicable in the case of a regular budget.
,
,Funds
,The Constitution of India provides for the following three kinds of
,funds for the Central government:
,1. Consolidated Fund of India (Article 266)
,2. Public Account of India (Article 266)
,3. Contingency Fund of India (Article 267)
,
,Consolidated Fund of India
,It is a fund to which all receipts are credited and all payments are
,"debited. In other words, (a) all revenues received by the"
,Government of India; (b) all loans raised by the Government by
,"the issue of treasury bills, loans or ways and means of advances;"
,and (c) all money received by the government in repayment of
,loans forms the Consolidated Fund of India. All the legally
,authorised payments on behalf of the Government of India are
,made out of this fund. No money out of this fund can be
,appropriated (issued or drawn) except in accordance with a
,parliamentary law.
,
,Public Account of India
,All other public money (other than those which are credited to the
,Consolidated Fund of India) received by or on behalf of the
,Government of India shall be credited to the Public Account of
,"India. This includes provident fund deposits, judicial deposits,"
,"savings bank deposits, departmental deposits, remittances and so"
,"on. This account is operated by executive action, that is, the"
,payments from this account can by made without parliamentary
,appropriation. Such payments are mostly in the nature of banking
,transactions.
,
,Contingency Fund of India
,The Constitution authorised the Parliament to establish a
,"‘Contingency Fund of India’, into which amounts determined by"
,"law are paid from time to time. Accordingly, the Parliament"
,enacted the contingency fund of India Act in 1950. This fund is
,"placed at the disposal of the president, and he can make"
,advances out of it to meet unforeseen expenditure pending its
,authorisation by the Parliament. The fund is held by the finance
,secretary on behalf of the president. Like the public account of
,"India, it is also operated by executive action."
, MULTIFUNCTIONAL ROLE OF PARLIAMENT
,"In the ‘Indian politico-administrative system’, the Parliament"
,occupies a central position and has a multifunctional role. It enjoys
,extensive powers and performs a variety of functions towards the
,fulfilment of its constitutionally expected role. Its powers and
,functions can be classified under the following heads:
,1. Legislative Powers and Functions
,2. Executive Powers and Functions
,3. Financial Powers and Functions
,4. Constituent Powers and Functions
,5. Judicial Powers and Functions
,6. Electoral Powers and Functions
,7. Other powers and functions.
,
,1. Legislative Powers and Functions
,The primary function of Parliament is to make laws for the
,governance of the country. It has exclusive power to make laws on
,the subjects enumerated in the Union List (which at present has
,"98 subjects, originally 97 subjects) and on the residuary subjects"
,"(that is, subjects not enumerated in any of the three lists). With"
,"regard to Concurrent List (which has at present 52 subjects,"
,"originally 47 subjects), the Parliament has overriding powers, that"
,"is, the law of Parliament prevails over the law of the state"
,legislature in case of a conflict between the two.
,The Constitution also empowers the Parliament to make laws
,on the subjects enumerated in the State List (which at present has
,"59 subjects, originally 66 subjects) under the following five"
,abnormal circumstances:
,(a) when Rajya Sabha passes a resolution to that effect.
,(b) when a proclamation of National Emergency is in operation.
,(c) when two or more states make a joint request to the
,Parliament.
,"(d) when necessary to give effect to international agreements,"
,treaties and conventions.
,(e) when President’s Rule is in operation in the state.
,   All the ordinances issued by the president (during the recess of
,the Parliament) must be approved by the Parliament within six
,weeks after its reassembly. An ordinance becomes inoperative if it
,is not approved by the parliament within that period.
,The Parliament makes laws in a skeleton form and authorises
,the Executive to make detailed rules and regulations within the
,framework of the parent law. This is known as delegated
,legislation or executive legislation or subordinate legislation. Such
,rules and regulations are placed before the Parliament for its
,examination.
,
,2. Executive Powers and Functions
,The Constitution of India established a parliamentary form of
,government in which the Executive is responsible to the
,"Parliament for its policies and acts. Hence, the Parliament"
,"exercises control over the Executive through question-hour, zero"
,"hour, half-an-hour discussion, short duration discussion, calling"
,"attention motion, adjournment motion, no-confidence motion,"
,censure motion and other discussions. It also supervises the
,activities of the Executive with the help of its committees like
,"committee on government assurance, committee on subordinate"
,"legislation, committee on petitions, etc."
,The ministers are collectively responsible to the Parliament in
,general and to the Lok Sabha in particular. As a part of collective
,"responsibility, there is individual responsibility, that is, each"
,minister is individually responsible for the efficient administration
,of the ministry under his charge. This means that they continue in
,office so long as they enjoy the confidence of the majority
,"members in the Lok Sabha. In other words, the council of"
,ministers can be removed from office by the Lok Sabha by
,passing a noconfidence motion. The Lok Sabha can also express
,lack of confidence in the government in the following ways:
,(a) By not passing a motion of thanks on the President’s
,inaugural address.
,(b) By rejecting a money bill.
,(c) By passing a censure motion or an adjournment motion.
,(d) By defeating the government on a vital issue.
,(e) By passing a cut motion.
,"   Therefore, “the first function of Parliament can be said to be to"
,"select the group which is to form the government, support and"
,"sustain it in power so long as it enjoys its confidence, and to expel"
,"it when it ceases to do so, and leave it to the people to decide at"
,the next general election.”23
,
,3. Financial Powers and Functions
,No tax can be levied or collected and no expenditure can be
,incurred by the Executive except under the authority and with the
,"approval of Parliament. Hence, the budget is placed before the"
,Parliament for its approval. The enactment of the budget by the
,Parliament legalises the receipts and expenditure of the
,government for the ensuing financial year.
,The Parliament also scrutinises government spending and
,financial performance with the help of its financial committees.
,"These include public accounts committee, estimates committee"
,and committee on public undertakings. They bring out the cases
,"of illegal, irregular, unauthorised, improper usage and wastage"
,and extravagance in public expenditure.
,"Therefore, the parliamentary control over the Executive in"
,financial matters operates in two stages:
,"(a) budgetary control, that is, control before the appropriation of"
,grants through the enactment of the budget; and
,"(b) post-budgetary control, that is, control after the appropriation"
,of grants through the three financial committees.
,"The budget is based on the principle of annuity, that is, the"
,Parliament grants money to the government for one financial year.
,"If the granted money is not spent by the end of the financial year,"
,then the balance expires and returns to the Consolidated Fund of
,India. This practice is known as the ‘rule of lapse’. It facilitates
,effective financial control by the Parliament as no reserve funds
,"can be built without its authorisation. However, the observance of"
,this rule leads to heavy rush of expenditure towards the close of
,the financial year. This is popularly called as ‘March Rush’.
,
,4. Constituent Powers and Functions
,The Parliament is vested with the powers to amend the
,"Constitution by way of addition, variation or repeal of any"
,provision. The major part of the Constitution can be amended by
,"the Parliament with special majority, that is, a majority of the total"
,membership of each House and a majority of not less than two-
,thirds of the members present and voting in each House. Some
,other provisions of the Constitution can be amended by the
,"Parliament with simple majority, that is, a majority of the members"
,present and voting in each House of Parliament. Only a few
,provisions of the Constitution can be amended by the Parliament
,(by special majority) and with the consent of at least half of the
,"state Legislatures (by simple majority). However, the power to"
,initiate the process of the amendment of the Constitution (in all the
,three cases) lies exclusively in the hands of the Parliament and
,"not the state legislature. There is only one exception, that is, the"
,state legislature can pass a resolution requesting the Parliament
,for the creation or abolition of the legislative council in the state.
,"Based on the resolution, the Parliament makes an act for"
,"amending the Constitution to that effect. To sum up, the"
,Parliament can amend the Constitution in three ways:
,(a) By simple majority;
,(b) By special majority; and
,(c) By special majority but with the consent of half of all the state
,legislatures.
,The constituent power of the Parliament is not unlimited; it is
,"subject to the ‘basic structure’ of the Constitution. In others words,"
,the Parliament can amend any provision of the Constitution
,except the ‘basic features’ of the Constitution. This was ruled by
,the Supreme Court in the Kesavananda Bharati case (1973) and
,reaffirmed in the Minerva Mills case (1980)24 .
,
,5. Judicial Powers and Functions
,The judicial powers and functions of the Parliament include the
,following:
,(a) It can impeach the President for the violation of the
,Constitution.
,(b) It can remove the Vice-President from his office.
, (c) It can recommend the removal of judges (including chief
,"justice) of the Supreme Court and the high courts, chief"
,"election commissioner, comptroller and auditor general to the"
,president.
,(d) It can punish its members or outsiders for the breach of its
,privileges or its contempt.
,
,6. Electoral Powers and Functions
,The Parliament participates in the election of the President (along
,with the state legislative assemblies) and elects the Vice-
,"President. The Lok Sabha elects its Speaker and Deputy Speaker,"
,while the Rajya Sabha elects its Deputy Chairman.
,The Parliament is also authorised to make laws to regulate the
,"elections to the offices of President and Vice-President, to both"
,the Houses of Parliament and to both the Houses of state
,"legislature. Accordingly, Parliament enacted the Presidential and"
,"Vice-Presidential Election Act (1952), the Representation of"
,"People Act (1950), the Representation of People Act (1951), etc."
,
,7. Other Powers and Functions
,The various other powers and functions of the Parliament include:
,(a) It serves as the highest deliberative body in the country. It
,discusses various issues of national and international
,significance.
,"(b) It approves all the three types of emergencies (national, state"
,and financial) proclaimed by the President.
,(c) It can create or abolish the state legislative councils on the
,recommendation of the concerned state legislative
,assemblies.
,"(d) It can increase or decrease the area, alter the boundaries"
,and change the names of states of the Indian Union.
,(e) It can regulate the organisation and jurisdiction of the
,Supreme Court and high courts and can establish a common
,high court for two or more states.
, INEFFECTIVENESS OF PARLIAMENTARY CONTROL
,The parliamentary control over government and administration in
,"India is more theoretical than practical. In reality, the control is not"
,as effective as it ought to be. The following factors are responsible
,for this:
,(a) The Parliament has neither time nor expertise to control the
,administration which has grown in volume as well as
,complexity.
,(b) Parliament’s financial control is hindered by the technical
,nature of the demands for grants. The parliamentarians being
,laymen cannot understand them properly and fully.
,(c) The legislative leadership lies with the Executive and it plays
,a significant role in formulating policies.
,(d) The very size of the Parliament is too large and
,unmanagable to be effective.
,(e) The majority support enjoyed by the Executive in the
,Parliament reduces the possibility of effective criticism.
,(f) The financial committees like Public Accounts Committee
,examines the public expenditure after it has been incurred by
,"the Executive. Thus, they do post mortem work."
,(g) The increased recourse to ‘guillotine’ reduced the scope of
,financial control.
,(h) The growth of ‘delegated legislation’ has reduced the role of
,Parliament in making detailed laws and has increased the
,powers of bureaucracy.
,(i) The frequent promulgation of ordinances by the president
,dilutes the Parliament’s power of legislation.
,"(j) The Parliament’s control is sporadic, general and mostly"
,political in nature.
,"(k) Lack of strong and steady opposition in the Parliament, and a"
,"setback in the parliamentary behaviour and ethics, have also"
,contributed to the ineffectiveness of legislative control over
,administration in India.
, POSITION OF RAJYA SABHA
,The Constitutional position of the Rajya Sabha (as compared with
,the Lok Sabha) can be studied from three angles:
,1. Where Rajya Sabha is equal to Lok Sabha.
,2. Where Rajya Sabha is unequal to Lok Sabha.
,3. Where Rajya Sabha has special powers that are not at all
,shared with the Lok Sabha.
,
,Equal Status with Lok Sabha
,"In the following matters, the powers and status of the Rajya"
,Sabha are equal to that of the Lok Sabha:
,1. Introduction and passage of ordinary bills.
,2. Introduction and passage of Constitutional amendment bills.
,3. Introduction and passage of financial bills involving
,expenditure from the Consolidated Fund of India.
,4. Election and impeachment of the president.
,"5. Election and removal of the Vice-President. However, Rajya"
,Sabha alone can initiate the removal of the vice-president.
,He is removed by a resolution passed by the Rajya Sabha
,by an effective majority (which is a type of special majority)
,and agreed to by the Lok Sabha by a simple majority.
,6. Making recommendation to the President for the removal of
,"Chief Justice and judges of Supreme Court and high courts,"
,chief election commissioner and comptroller and auditor
,general.
,7. Approval of ordinances issued by the President.
,8. Approval of proclamation of all three types of emergencies
,by the President.
,9. Selection of ministers including the Prime Minister. Under
,"the Constitution, the ministers including the Prime Minister"
,"can be members of either House. However, irrespective of"
,"their membership, they are responsible only to the Lok"
,Sabha.
,10. Consideration of the reports of the constitutional bodies like
,"Finance Commission, Union Public Service Commission,"
,"comptroller and auditor general, etc."
, 11. Enlargement of the jurisdiction of the Supreme Court and
,the Union Public Service Commission.
,
,Unequal Status with Lok Sabha
,"In the following matters, the powers and status of the Rajya"
,Sabha are unequal to that of the Lok Sabha:
,1. A Money Bill can be introduced only in the Lok Sabha and
,not in the Rajya Sabha.
,2. Rajya Sabha cannot amend or reject a Money Bill. It should
,"return the bill to the Lok Sabha within 14 days, either with"
,recommendations or without recommendations.
,3. The Lok Sabha can either accept or reject all or any of the
,"recommendations of the Rajya Sabha. In both the cases, the"
,money bill is deemed to have been passed by the two
,Houses.
,"4. A financial bill, not containing solely the matters of Article"
,"110, also can be introduced only in the Lok Sabha and not in"
,"the Rajya Sabha. But, with regard to its passage, both the"
,Houses have equal powers.
,5. The final power to decide whether a particular bill is a Money
,Bill or not is vested in the Speaker of the Lok Sabha.
,6. The Speaker of Lok Sabha presides over the joint sitting of
,both the Houses.
,7. The Lok Sabha with greater number wins the battle in a joint
,sitting except when the combined strength of the ruling party
,in both the Houses is less than that of the opposition parties.
,8. Rajya Sabha can only discuss the budget but cannot vote
,on the demands for grants (which is the exclusive privilege
,of the Lok Sabha).
,9. A resolution for the discontinuance of the national
,emergency can be passed only by the Lok Sabha and not by
,the Rajya Sabha.
,10. The Rajya Sabha cannot remove the council of ministers by
,passing a no-confidence motion. This is because the Council
,of ministers is collectively responsible only to the Lok Sabha.
,"But, the Rajya Sabha can discuss and criticise the policies"
,and activities of the government.
,Special Powers of Rajya Sabha
,The Rajya Sabha has been given four exclusive or special powers
,that are not enjoyed by the Lok Sabha:
,1. It can authorise the Parliament to make a law on a subject
,enumerated in the State List (Article 249).
,2. It can authorise the Parliament to create new All-India
,Services common to both the Centre and states (Article
,312).
,3. It alone can initiate a move for the removal of the vice-
,"president. In other words, a resolution for the removal of the"
,vice-president can be introduced only in the Rajya Sabha
,and not in the Lok Sabha (Article 67).
,4. If a proclamation is issued by the President for imposing
,national emergency or president’s rule or financial
,emergency at a time when the Lok Sabha has been
,dissolved or the dissolution of the Lok Sabha takes place
,"within the period allowed for its approval, then the"
,proclamation can remain effective even if it is approved by
,"the Rajya Sabha alone (Articles 352, 356 and 360)."
,An analysis of the above points makes it clear that the position
,of the Rajya Sabha in our constitutional system is not as weak as
,that of the House of Lords in the British constitutional system nor
,as strong as that of the Senate in the American constitutional
,system. Except in financial matters and control over the council of
,"ministers, the powers and status of the Rajya Sabha in all other"
,spheres are broadly equal and coordinate with that of the Lok
,Sabha.
,Even though the Rajya Sabha has been given less powers as
,"compared with the Lok Sabha, its utility is supported on the"
,following grounds:
,"1. It checks hasty, defective, careless and ill-considered"
,legislation made by the Lok Sabha by making provision of
,revision and thought.
,2. It facilitates giving representation to eminent professionals
,and experts who cannot face the direct election. The
,President nominates 12 such persons to the Rajya Sabha.
,3. It maintains the federal equilibrium by protecting the
,interests of the states against the undue interference of the
,Centre.
, PARLIAMENTARY PRIVILEGES
,
,Meaning
,"Parliamentary privileges are special rights, immunities and"
,"exemptions enjoyed by the two Houses of Parliament, their"
,committees and their members. They are necessary in order to
,secure the independence and effectiveness of their actions.
,"Without these privileges, the Houses can neither maintain their"
,"authority, dignity and honour nor can protect their members from"
,any obstruction in the discharge of their parliamentary
,responsibilities.
,The Constitution has also extended the parliamentary privileges
,to those persons who are entitled to speak and take part in the
,proceedings of a House of Parliament or any of its committees.
,These include the attorney general of India and Union ministers.
,It must be clarified here that the parliamentary privileges do not
,extend to the president who is also an integral part of the
,Parliament.
,
,Classification
,Parliamentary privileges can be classified into two broad
,categories:
,1. those that are enjoyed by each House of Parliament
,"collectively, and"
,2. those that are enjoyed by the members individually.
,
,Collective Privileges
,The privileges belonging to each House of Parliament collectively
,are:
,"1. It has the right to publish its reports, debates and"
,proceedings and also the right to prohibit others from
,publishing the same. The 44th Amendment Act of 1978
,restored the freedom of the press to publish true reports of
,parliamentary proceedings without prior permission of the
,House. But this is not applicable in the case of a secret
,sitting of the House.
,  2. It can exclude strangers from its proceedings and hold
,secret sittings to discuss some important matters.
,3. It can make rules to regulate its own procedure and the
,conduct of its business and to adjudicate upon such matters.
,4. It can punish members as well as outsiders for breach of its
,"privileges or its contempt by reprimand, admonition or"
,"imprisonment (also suspension or expulsion, in case of"
,members).25
,5. It has the right to receive immediate information of the
,"arrest, detention, conviction, imprisonment and release of a"
,member.
,6. It can institute inquiries and order the attendance of
,witnesses and send for relevant papers and records.
,7. The courts are prohibited to inquire into the proceedings of a
,House or its committees.
,"8. No person (either a member or outsider) can be arrested,"
,and no legal process (civil or criminal) can be served within
,the precincts of the House without the permission of the
,presiding officer.
,
,Individual Privileges
,The privileges belonging to the members individually are:
,1. They cannot be arrested during the session of Parliament
,and 40 days before the beginning and 40 days after the end
,of a session. This privilege is available only in civil cases
,and not in criminal cases or preventive detention cases.
,2. They have freedom of speech in Parliament. No member is
,liable to any proceedings in any court for anything said or
,any vote given by him in Parliament or its committees. This
,freedom is subject to the provisions of the Constitution and
,to the rules and standing orders regulating the procedure of
,Parliament.26
,3. They are exempted from jury service. They can refuse to
,give evidence and appear as a witness in a case pending in
,a court when Parliament is in session.
,
,Breach of Privilege and Contempt of the House
,   “When any individual or authority disregards or attacks any of
,"the privileges, rights and immunities, either of the member"
,"individually or of the House in its collective capacity, the offence"
,is termed as breach of privilege and is punishable by the
,House.”27
,"Any act or omission which obstructs a House of Parliament, its"
,member or its officer in the performance of their functions or which
,"has a tendency, directly or indirectly to produce results against the"
,"dignity, authority and honour of the House is treated as a"
,contempt of the House.28
,"Though the two phrases, ‘breach of privilege’ and ‘contempt of"
,"the House’ are used interchangeably, they have different"
,"implications. ‘Normally, a breach of privilege may amount to"
,"contempt of the House. Likewise, contempt of the House may"
,"include a breach of privilege also. Contempt of the House,"
,"however, has wider implications. There may be a contempt of the"
,House without specifically committing a breach of privilege’.29
,"Similarly, ‘actions which are not breaches of any specific privilege"
,but are offences against the dignity and authority of the House
,"amount to contempt of the House’.30 For example, disobedience"
,"to a legitimate order of the House is not a breach of privilege, but"
,can be punished as contempt of the House.
,
,Sources of Privileges
,"Originally, the Constitution (Article 105) expressedly mentioned"
,"two privileges, that is, freedom of speech in Parliament and right"
,"of publication of its proceedings. With regard to other privileges, it"
,provided that they were to be the same as those of the British
,"House of Commons, its committees and its members on the date"
,"of its commencement (ie, 26 January, 1950), until defined by"
,Parliament. The 44th Amendment Act of 1978 provided that the
,"other privileges of each House of Parliament, its committees and"
,its members are to be those which they had on the date of its
,"commencement (ie, 20 June, 1979), until defined by Parliament."
,This means that the position with regard to other privileges
,"remains same. In other words, the amendment has made only"
,verbal changes by dropping a direct reference to the British House
,"of Commons, without making any change in the implication of the"
,provision.31
,"It should be noted here that the Parliament, till now, has not"
,made any special law to exhaustively codify all the privileges.
,"They are based on five sources, namely,"
,"1. Constitutional provisions,"
,"2. Various laws made by Parliament,"
,"3. Rules of both the Houses,"
,"4. Parliamentary conventions, and"
,5. Judicial interpretations.
, SOVEREIGNTY OF PARLIAMENT
,The doctrine of ‘sovereignty of Parliament’ is associated with the
,British Parliament. Sovereignty means the supreme power within
,the State. That supreme power in Great Britain lies with the
,Parliament. There are no ‘legal’ restrictions on its authority and
,jurisdiction.
,"Therefore, the sovereignty of Parliament (parliamentary"
,supremacy) is a cardinal feature of the British constitutional
,"system. According to AV Dicey, the British jurist, this principle has"
,three implications:32
,"1. The Parliament can make, amend, substitute or repeal any"
,"law. De Lolme, a British political analyst, said, ‘The British"
,Parliament can do every thing except make a woman a man
,and a man a woman’.
,2. The Parliament can make constitutional laws by the same
,"procedure as ordinary laws. In other words, there is no legal"
,distinction between the constituent authority and the
,legislative authority of the British Parliament.
,3. The Parliamentary laws cannot be declared invalid by the
,"Judiciary as being unconstitutional. In other words, there is"
,no system of judicial review in Britain.
,"The Indian Parliament, on the other hand, cannot be regarded"
,as a sovereign body in the similar sense as there are ‘legal’
,restrictions on its authority and jurisdiction. The factors that limit
,the sovereignty of Indian Parliament are:
,
,1. Written Nature of the Constitution
,The Constitution is the fundamental law of the land in our country.
,It has defined the authority and jurisdiction of all the three organs
,of the Union government and the nature of interrelationship
,"between them. Hence, the Parliament has to operate within the"
,limits prescribed by the Constitution. There is also a legal
,distinction between the legislative authority and the constituent
,"authority of the Parliament. Moreover, to effect certain"
,"amendments to the Constitution, the ratification of half of the"
,"states is also required. In Britain, on the other hand, the"
,Constitution is neither written nor there is anything like a
,fundamental law of the land.
,
,2. Federal System of Government
,India has a federal system of government with a constitutional
,division of powers between the Union and the states. Both have to
,"operate within the spheres allotted to them. Hence, the law-"
,making authority of the Parliament gets confined to the subjects
,enumerated in the Union List and Concurrent List and does not
,extend to the subjects enumerated in the State List (except in five
,"abnormal circumstances and that too for a short period). Britain,"
,"on the other hand, has a unitary system of government and"
,"hence, all the powers are vested in the Centre."
,
,3. System of Judicial Review
,The adoption of an independent Judiciary with the power of
,judicial review also restricts the supremacy of our Parliament.
,Both the Supreme Court and high courts can declare the laws
,enacted by the Parliament as void and ultra vires
,"(unconstitutional), if they contravene any provision of the"
,"Constitution. On the other hand, there is no system of judicial"
,review in Britain. The British Courts have to apply the
,"Parliamentary laws to specific cases, without examining their"
,"constitutionality, legality or reasonableness."
,
,4. Fundamental Rights
,The authority of the Parliament is also restricted by the
,incorporation of a code of justiciable fundamental rights under
,Part III of the Constitution. Article 13 prohibits the State from
,making a law that either takes away totally or abrogates in part a
,"fundamental right. Hence, a Parliamentary law that contravenes"
,"the fundamental rights shall be void. In Britain, on the other hand,"
,there is no codification of justiciable fundamental rights in the
,Constitution. The British Parliament has also not made any law
,"that lays down the fundamental rights of the citizens. However, it"
,does not mean that the British citizens do not have rights. Though
,"there is no charter guaranteeing rights, there is maximum liberty in"
,Britain due to the existence of the Rule of Law.
,"Therefore, even though the nomenclature and organisational"
,pattern of our Parliament is similar to that of the British
,"Parliament, there is a substantial difference between the two. The"
,Indian Parliament is not a sovereign body in the sense in which
,the British Parliament is a sovereign body. Unlike the British
,"Parliament, the authority and jurisdiction of the Indian Parliament"
,"are defined, limited and restrained."
,"In this regard, the Indian Parliament is similar to the American"
,"Legislature (known as Congress). In USA also, the sovereignty of"
,Congress is legally restricted by the written character of the
,"Constitution, the federal system of government, the system of"
,judicial review and the Bill of Rights.
,
,Table 22.5 Allocation of Seats in Parliament for States and Union
,Territories (2019)
,S.No.         States/UTs                  No. of Seats     No. of
,in Rajya       Seats in
,Sabha           Lok
,Sabha
,I. States
,1.    Andhra Pradesh                    11            25
,2.    Arunachal Pradesh                  1             2
,3.    Assam                              7            14
,4.    Bihar                             16            40
,5.    Chhattisgarh                       5            11
,6.    Goa                                1             2
,7.    Gujarat                           11            26
,8.    Haryana                            5            10
,9.    Himachal Pradesh                   3             4
,10.      Jharkhand                          6            14
,    11.      Karnataka                     12   28
,12.      Kerala                        9    20
,13.      Madhya Pradesh                11   29
,14.      Maharashtra                   19   48
,15.      Manipur                       1    2
,16.      Meghalaya                     1    2
,17.      Mizoram                       1    1
,18.      Nagaland                      1    1
,19.      Odisha                        10   21
,20.      Punjab                        7    13
,21.      Rajasthan                     10   25
,22.      Sikkim                        1    1
,23.      Tamil Nadu                    18   39
,24.      Telangana                     7    17
,25.      Tripura                       1    2
,26.      Uttarakhand                   3    5
,27.      Uttar Pradesh                 31   80
,28.      West Bengal                   16   42
,II. Union Territories
,1.     Andaman and Nicobar           –    1
,Islands
,2.     Chandigarh                    –    1
,3.     Dadra and Nagar Haveli        –    1
,4.     Daman and Diu                 –    1
,5.     Delhi (The National           3    7
,Capital Territory of Delhi)
,6.     Lakshadweep                   –    1
,7.     Puducherry                    1    1
,8.     Jammu and Kashmir             4    5
,      9       Ladakh                           –          1
,III. Nominated members                        12          2
,Total                           245      545
,
,Table 22.6 Seats Reserved for SCs and STs in the Lok Sabha
,(2019)
,Name of the State/Union       Total   Reserved Reserved for
,Territory                               for the    the
,Scheduled Scheduled
,Castes     Tribes
,I. STATES:
,1.           Andhra Pradesh    25         4           1
,2.           Arunachal          2         –           –
,Pradesh
,3.           Assam             14         1           2
,4.           Bihar             40         6           –
,5.           Chhattisgarh      11         1           4
,6.           Goa                2         –           –
,7.           Gujarat           26         2           4
,8.           Haryana           10         2           –
,9.           Himachal           4         1           –
,Pradesh
,10.          Jharkhand         14         1           5
,11.          Karnataka         28         5           2
,12.          Kerala            20         2           –
,13.          Madhya Pradesh    29         4           6
,14.          Maharashtra       48         5           4
,15.          Manipur            2         –           1
,16.          Meghalaya          2         –           2
,17.          Mizoram            1         –           1
,18.         Nagaland               1      –             –
,19.         Odisha                21      3             5
,20.         Punjab                13      4             –
,21.         Rajasthan             25      4             3
,22.         Sikkim                 1      –             –
,23.         Tamil Nadu            39      7             –
,24.         Telangana             17      3             2
,25.         Tripura                2      –             1
,26.         Uttarakhand            5      1             –
,27.         Uttar Pradesh         80      17            –
,28.         West Bengal           42      10             2
,II. UNION TERRITORIES:
,1.          Andaman and            1      –             –
,Nicobar Islands
,2.          Chandigarh             1      –             –
,3.          Dadra and              1      –             1
,Nagar Haveli
,4.          Daman and Diu          1      –             –
,5.          Delhi (The             7       1            –
,National Capital
,Territory of Delhi)
,6.          Lakshadweep            1      –             1
,7.          Puducherry             1      –             –
,8.          Jammu and              5      –             –
,Kashmir
,9.          Ladakh                 1      –             –
,Total                 543    84            47
,
,Table 22.7 Durations of the Lok Sabha (from First Lok Sabha to
,Present Lok Sabha)
,Lok Sabha    Duration    Remarks
,First        1952–1957   Dissolved 38 days before expiry of
,its term.
,Second       1957–1962   Dissolved 40 days before expiry of
,its term.
,Third        1962–1967   Dissolved 44 days before expiry of
,its term.
,Fourth       1967–1970   Dissolved one year and 79 days
,before expiry of its term.
,Fifth        1971–1977   Term of the Lok Sabha was
,extended two times by one year at
,"a time. However, the House was"
,dissolved after having been in
,"existence for a period of five years,"
,10 months and six days.
,Sixth        1977–1979   Dissolved after having been in
,"existence for a period of two years,"
,four months and 28 days.
,Seventh      1980–1984   Dissolved 20 days before expiry of
,its term.
,Eighth       1985–1989   Dissolved 48 days before expiry of
,its term.
,Ninth        1989–1991   Dissolved after having been in
,"existence for a period of one year,"
,two months and 25 days.
,Tenth        1991–1996   –
,Eleventh     1996–1997   Dissolved after having been in
,"existence for a period of one year,"
,six months and 13 days.
,Twelfth      1998–1999   Dissolved after having been in
,"existence for a period of one year,"
,one month and four days.
,Thirteenth   1999–2004   Dissolved 253 days before expiry of
,its term.
,Fourteenth    2004–2009       –
,Fifteenth     2009–2014       –
,Sixteenth     2014–2019       –
,Seventeenth   2019-           –
,Continuing
,
,Table 22.8 Speakers of the Lok Sabha (from First Lok Sabha to
,Present Lok Sabha)
,Lok Sabha     Name                        Tenure (Remarks)
,First         1. Ganesh Vasudev           1952 to 1956 (Died)
,Mavalanker
,2. Ananthasayanam           1956 to 1957
,Ayyangar
,Second        Ananthasayanam Ayyangar 1957 to 1962
,Third         Hukum Singh                 1962 to 1967
,Fourth        1. Neelam Sanjiva Reddy     1967 to 1969
,(Resigned)
,2. Gurdial Singh Dhillan    1969 to 1971
,Fifth         1. Gurdial Singh Dhillan    1971 to 1975
,(Resigned)
,2. Bali Ram Bhagat          1976 to 1977
,Sixth         1. Neelam Sanjiva Reddy     1977 to 1977
,(Resigned)
,2. K.S. Hegde               1977 to 1980
,Seventh       Balram Jakhar               1980 to 1985
,Eighth        Balram Jakhar               1985 to 1989
,Ninth         Rabi Ray                    1989 to 1991
,Tenth         Shivraj Patil               1991 to 1996
,Eleventh      P.A. Sangma                 1996 to 1998
,Twelfth       G.M.C. Balayogi             1998 to 1999
,Thirteenth    1. G.M.C. Balayogi          1999 to 2002 (Died)
,                 2. Manohar Joshi               2002 to 2004
,Fourteenth       Somnath Chatterjee             2004 to 2009
,Fifteenth        Ms. Meira Kumar                2009 – 2014
,Sixteenth        Ms. Sumitra Mahajan            2014 – 2019
,Seventeenth      Om Birla                       2019 - till date
,
,Table 22.9 Articles Related to Parliament at a Glance
,Article No.     Subject Matter
,General
,79.         Constitution of Parliament
,80.         Composition of the Council of States
,81.         Composition of the House of the People
,82.         Readjustment after each census
,83.         Duration of Houses of Parliament
,84.         Qualification for membership of Parliament
,"85.         Sessions of Parliament, prorogation and"
,dissolution
,86.         Right of President to address and send
,messages to Houses
,87.         Special address by the President
,88.         Rights of Ministers and Attorney-General as
,respects Houses
,Officers of Parliament
,89.         The Chairman and Deputy Chairman of the
,Council of States
,"90.         Vacation and resignation of, and removal from,"
,the office of Deputy Chairman
,91.         Power of the Deputy Chairman or other person
,"to perform the duties of the office of, or to act"
,"as, Chairman"
,    92.       The Chairman or the Deputy Chairman not to
,preside while a resolution for his removal from
,office is under consideration
,93.       The Speaker and Deputy Speaker of the
,House of the People
,"94.       Vacation and resignation of, and removal from,"
,the offices of Speaker and Deputy Speaker
,95.       Power of the Deputy Speaker or other person
,"to perform the duties of the office of, or to act"
,"as, Speaker"
,96.       The Speaker or the Deputy Speaker not to
,preside while a resolution for his removal from
,office is under consideration
,97.       Salaries and allowances of the Chairman and
,Deputy Chairman and the Speaker and Deputy
,Speaker
,98.       Secretariat of Parliament
,Conduct of Business
,99.       Oath or affirmation by members
,"100.       Voting in Houses, power of Houses to act"
,notwithstanding vacancies and quorum
,Disqualifications of Members
,101.       Vacation of seats
,102.       Disqualifications for membership
,103.       Decision on questions as to disqualifications of
,members
,104.       Penalty for sitting and voting before making
,oath or affirmation under Article 99 or when not
,qualified or when disqualified
,"Powers, Privileges and Immunities of Parliament and its"
,Members
,"105.       Powers, privileges, etc., of the Houses of"
,Parliament and of the members and
,           committees thereof
,106.       Salaries and allowances of members
,Legislative Procedure
,107.       Provisions as to introduction and passing of
,Bills
,108.       Joint sitting of both Houses in certain cases
,109.       Special procedure in respect of Money Bills
,110.       Definition of “Money Bills”
,111.       Assent to Bills
,Procedures in Financial Matters
,112.       Annual financial statement
,113.       Procedure in Parliament with respect to
,estimates
,114.       Appropriation Bills
,"115.       Supplementary, additional or excess grants"
,"116.       Votes on account, votes of credit and"
,exceptional grants
,117.       Special provisions as to financial Bills
,Procedure Generally
,118.       Rules of procedure
,119.       Regulation by law of procedure in Parliament
,in relation to financial business
,120.       Language to be used in Parliament
,121.       Restriction on discussion in Parliament
,122.       Courts not to inquire into proceedings of
,Parliament
,Legislative Powers of the President
,123.       Power of President to promulgate Ordinances
,during recess of Parliament
,NOTES AND REFERENCES
,1. Westminster is a place in London where the British
,Parliament is located. It is often used as a symbol of the
,British Parliament.
,2. See Table 22.5 at the end of this chapter.
,3. An Anglo-Indian is a person whose father or any of
,whose other male progenitors in the male line is or was
,of European descent but who is domiciled within the
,territory of India and is or was born within such territory
,of parents habitually resident therein and not merely
,established there for temporary purposes.
,4. See Table 22.5 at the end of this chapter.
,5. This means that the number of Lok Sabha seats
,reserved in a state or union territory for such castes and
,tribes is to bear the same proportion to the total number
,of seats allotted to that state or union territory in the Lok
,Sabha as the population of such castes and tribes in the
,concerned state or union territory bears to the total
,population of state or union territory.
,"6. Under this, the president has made the Rajya Sabha"
,"(Term of Office of Members) Order, 1952."
,7. The term of the fifth Lok Sabha that was to expire on 18
,"March, 1976, was extended by one year upto 18 March,"
,1977 by the House of the People (Extension of
,"Duration) Act, 1976. It was extended for a further period"
,"of one year up to 18 March, 1978 by the House of the"
,"People (Extension of Duration) Amendment Act, 1976."
,"However, the House was dissolved on 18 January 1977,"
,"after having been in existence for a period of five years,"
,10 months and six days.
,8. A minister in the Union or state government is not
,"considered as holding the office of profit. Also, the"
,Parliament can declare that a particular office of profit
,will notdisqualify its holder from parliamentary
,membership.
,9. According to the Prohibition of Simultaneous
,Membership Rules (1950) made by the President.
,9a. Section 3 of the Salaries and Allowances of Officers of
,"Parliament Act, 1953 (as amended)."
,9b. Ibid.
,9c. Ibid.
,9d. Ibid.
,9e. Section 5 of the Salaries and Allowances of Officers of
,"Parliament Act, 1953 (as amended)."
,9f. Ibid.
,10. Kihota Hollohan Vs. Zachilhu (1992).
,"11. In this context, V.V. Giri observed: “The holder of an"
,office provided with such extensive authority and power
,must discharge the duties of his office impartially. So
,impartiality is regarded as an indispensable condition of
,"the office of the Speaker, who is the guardian of the"
,powers and privileges of the House and not of the
,political party with whose support he might have been
,elected to the office. It is not possible for him to maintain
,order in the House unless he enjoys the confidence of
,the minority parties by safeguarding their rights and
,privileges”. (‘Powers of the Presiding Officers in Indian
,Legislature’ in Journal of Consitutional and
,"Parliamentary Studies, New Delhi, Vol II, No. 4, Oct-"
,"Dec. 1968, p. 22)"
,"12. For example, in the 13th Lok Sabha, Mr. Indrajit Gupta"
,was appointed as Speaker Pro Tem on 20 October 1999
,and remained in that office till 22 October 1999 when
,"the new Speaker, Mr. G.M.C. Balayogi was elected."
,"13. Under Article 107 (3) of the Constitution, a bill pending"
,in Parliament shall not lapse by reason of the
,prorogation of the Houses.
,"Under Rule 336 of the Lok Sabha, a motion, resolution"
,"or an amendment, which has been moved and is"
,"pending in the House, shall not lapse by reason only of"
,the prorogation of the House.
,"14. Subhash C. Kashyap: Our Parliament, National Book"
,"Trust, 1999 Edition, P. 135–136."
,"15. J.C. Johari: Indian Government and Politics, Vishal,"
,"Volume II, Thirteenth Edition, 2001, P. 360."
,"15a. T.K. Viswanathan (Editor), The Indian Parliament, Lok"
,"Sabha Secretariat, Fourteenth Edition, 2011, p.21."
,"16. Subhash C. Kashyap: Our Parliament, National Book"
,"Trust, 1999 Edition, P. 139–141."
,"17. Ibid, P. 139."
,"18. Under Rule 64 of Lok Sabha, the Speaker may, on"
,"request being made to him, order the publication of any"
,"bill in the Gazette, although no motion has been made"
,"for leave to introduce the bill. In that case, it shall not be"
,necessary to move for leave to introduce the bill and if
,"the bill is afterwards introduced, it shall not be"
,necessary to publish it again.
,"19. For different kinds of veto, see ‘Veto Power of the"
,President’ under Chapter 17.
,20. The Lok Sabha did not agree to the amendments made
,by the Rajya Sabha. A joint siting was held on 6 May
,1961
,21. The bill was passed by the Lok Sabha but rejected by
,the Rajya Sabha. A joint sitting was held on 16 May
,1978
,22. The bill was passed by the Lok Sabha but rejected by
,the Rajya Sabha. A joint sitting was held on 26 March
,2002. The bill was passed when 425 members voted for
,it and 296 against.
,"23. N.N. Mallya: Indian Parliament, P. 39."
,24. Kesavananda Bharati V. State of Kerala (1973);
,Minerva Mills V. Union of India (1980).
,"25. In 1977, the sixth Lok Sabha expelled Mrs. Indira"
,Gandhi from its membership and sentenced her to jail
,for a week for committing a contempt of House while
,"she was Prime Minister. But, the seventh Lok Sabha"
,rescinded the resolution expelling her by describing it as
,"politically motivated. In 1990, a former Minister, K.K."
,"Tiwari, was reprimanded by the Rajya Sabha."
,26. Article 121 of the Constitution says that no discussion
,shall take place in Parliament with respect to the
,conduct of any judge of the Supreme Court or of a high
,court in the discharge of his duties except upon a
,      motion for presenting an address to the president
,praying for the removal of the judge. Under Rules 349 to
,"350 of the Lok Sabha, use of unparliamentary language"
,or unparliamentary conduct of a member is prohibited.
,27.    Kaul and Shakdher: Practice and Procedure of
,"Parliament, First Edition, P. 157."
,"28.    Thomas Erskine May: Parliamentary Practice, 15th"
,"Edition, P. 109."
,"29.    Subhash C. Kashyap: Our Parliament, National Book"
,"Trust, 1999 Edition, P. 241."
,"30.    Thomas Erskine May: Parliamentary Practice, 16th"
,"Edition, P. 43."
,31.    The then law minister gave the following reason for
,dropping reference to the British House of Commons:
,“That the original provision–there was no escape from
,it–had referred to the British House of Commons. Now a
,proud country like India would like to avoid making any
,reference to a foreign institution in its own solemn
,"constitutional document. Therefore, this verbal change"
,is being introduced so that there may not be any
,reference to a foreign institution.”
,32.    A.V. Dicey: Introduction to the Study of the Law of the
,"Constitution, Macmillan, 1965 Edition, P. 39–40."
, 23       Parliamentary Committees
,
,
,MEANING
,The Parliament is too unwieldy a body to deliberate effectively the
,issues that come up before it. The functions of the Parliament are
,"varied, complex and voluminous. Moreover, it has neither the"
,adequate time nor necessary expertise to make a detailed
,"scrutiny of all legislative measures and other matters. Therefore, it"
,is assisted by a number of committees in the discharge of its
,duties.
,The Constitution of India makes a mention of these committees
,"at different places, but without making any specific provisions"
,"regarding their composition, tenure, functions, etc. All these"
,"matters are dealt by the rules of two Houses. Accordingly, a"
,parliamentary committee means a committee that:
,1. Is appointed or elected by the House or nominated by the
,Speaker / Chairman1
,2. Works under the direction of the Speaker / Chairman
,3. Presents its report to the House or to the Speaker /
,Chairman
,4. Has a secretariat provided by the Lok Sabha / Rajya Sabha
,"The consultative committees, which also consist of members of"
,"Parliament, are not parliamentary committees as they do not fulfill"
,above four conditions.2
, CLASSIFICATION
,
,"Broadly, parliamentary committees are of two kinds–Standing"
,Committees and Ad Hoc Committees. The former are permanent
,(constituted every year or periodically) and work on a continuous
,"basis, while the latter are temporary and cease to exist on"
,completion of the task assigned to them.
,
,Standing Committees
,"On the basis of the nature of functions performed by them,"
,standing committees can be classified into the following six
,categories:
,
,1. Financial Committees
,(a) Public Accounts Committee
,(b) Estimates Committee
,(c) Committee on Public Undertakings
,
,2. Departmental Standing Committees (24)
,
,3. Committees to Inquire
,(a) Committee on Petitions
,(b) Committee of Privileges
,(c) Ethics Committee
,
,4. Committees to Scrutinise and Control
,(a) Committee on Government Assurances
,(b) Committee on Subordinate Legislation
,(c) Committee on Papers Laid on the Table
,(d) Committee on Welfare of SCs and STs
,(e) Committee on Empowerment of Women
,(f) Joint Committee3 on Offices of Profit
,
,5. Committees Relating to the Day-to-Day Business of the
,House
,(a) Business Advisory Committee
,(b) Committee on Private Members’ Bills and Resolutions
, (c) Rules Committee
,(d) Committee on Absence of Members from Sittings of the
,House
,
,"6. House-Keeping Committees or Service Committees (i.e.,"
,Committees concerned with the Provision of Facilities and
,Services to Members):
,(a) General Purposes Committee
,(b) House Committee
,(c) Library Committee
,(d) Joint Committee on Salaries and Allowances of Members
,
,Ad Hoc Committees
,"Ad hoc committees can be divided into two categories, that is,"
,Inquiry Committees and Advisory Committees.
,"1. Inquiry Committees are constituted from time to time, either"
,"by the two Houses on a motion adopted in that behalf, or by"
,"the Speaker / Chairman, to inquire into and report on"
,specific subjects. For example:
,(a) Committee on the Conduct of Certain Members during
,President’s Address
,(b) Committee on Draft Five-Year Plan
,(c) Railway Convention Committee4
,(d) Committee on Members of Parliament Local Area
,Development Scheme (MPLADS)
,(e) Joint Committee on Bofors Contract
,(f) Joint Committee on Fertilizer Pricing
,(g) Joint Committee to Enquire into Irregularities in
,Securities and Banking Transactions
,(h) Joint Committee on Stock Market Scam
,(i) Joint Committee on Security in Parliament Complex
,(j) Committee on Provision of Computers to Members of
,"Parliament, Offices of Political Parties and Officers of the"
,Lok Sabha Secretariat
,(k) Committee on Food Management in Parliament House
,Complex
,(l) Committee on Installation of Portraits / Statues of
,National Leaders and Parliamentarians in Parliament
,           House Complex
,(m) Joint Committee on Maintenance of Heritage Character
,and Development of Parliament House Complex
,(n) Committee on Violation of Protocol Norms and
,Contemptuous Behaviour of Government Officers with
,Members of Lok Sabha
,(o) Joint Committee to Examine Matters Relating to
,Allocation and Pricing of Telecom Licences and
,Spectrum
,2. Advisory Committees include select or joint committees on
,"bills, which are appointed to consider and report on"
,particular bills. These committees are distinguishable from
,the other ad hoc committees in as much as they are
,concerned with bills and the procedure to be followed by
,them is laid down in the Rules of Procedure and the
,Directions by the Speaker / Chairman.
,"When a Bill comes up before a House for general discussion, it"
,is open to that House to refer it to a Select Committee of the
,House or a Joint Committee of the two Houses. A motion to this
,effect has to be moved and adopted in the House in which the Bill
,comes up for consideration. In case the motion adopted is for
,"reference of the Bill to a Joint Committee, the decision is"
,"conveyed to the other House, requesting the members to"
,nominate members of the other House to serve on the Committee.
,The Select or Joint Committee considers the Bill clause by
,clause just as the two Houses do. Amendments to various clauses
,can be moved by members of the Committee. The Committee can
,"also take evidence of associations, public bodies or experts who"
,"are interested in the Bill. After the Bill has thus been considered,"
,the Committee submits its report to the House. Members who do
,not agree with the majority report may append their minutes of
,dissent to the report.
, FINANCIAL COMMITTEES
,
,Public Accounts Committee
,This committee was set up first in 1921 under the provisions of the
,Government of India Act of 1919 and has since been in existence.
,"At present, it consists of 22 members (15 from the Lok Sabha and"
,7 from the Rajya Sabha). The members are elected by the
,Parliament every year from amongst its members according to the
,principle of proportional representation by means of the single
,"transferable vote. Thus, all parties get due representation in it."
,The term of office of the members is one year. A minister cannot
,be elected as a member of the committee. The chairman of the
,committee is appointed from amongst its members by the
,"Speaker. Until 1966 - ‘67, the chairman of the committee belonged"
,"to the ruling party. However, since 1967 a convention has"
,developed whereby the chairman of the committee is selected
,invariably from the Opposition.
,The function of the committee is to examine the annual audit
,"reports of the Comptroller and Auditor General of India (CAG),"
,which are laid before the Parliament by the President. The CAG
,"submits three audit reports to the President, namely, audit report"
,"on appropriation accounts, audit report on finance accounts and"
,audit report on public undertakings.
,The committee examines public expenditure not only from legal
,and formal point of view to discover technical irregularities but
,"also from the point of view of economy, prudence, wisdom and"
,"propriety to bring out the cases of waste, loss, corruption,"
,"extravagance, inefficiency and nugatory expenses."
,"In more detail, the functions of the committee are:"
,1. To examine the appropriation accounts and the finance
,accounts of the Union government and any other accounts
,laid before the Lok Sabha. The appropriation accounts
,compare the actual expenditure with the expenditure
,"sanctioned by the Parliament through the Appropriation Act,"
,while the finance accounts shows the annual receipts and
,disbursements of the Union Government.
,    2. In scrutinising the appropriation accounts and the audit
,"report of CAG on it, the committee has to satisfy itself that"
,(a) The money that has been disbursed was legally
,available for the applied service or purpose
,(b) The expenditure conforms to the authority that governs it
,(c) Every re-appropriation has been made in accordance
,with the related rules
,"3. To examine the accounts of state corporations, trading"
,concerns and manufacturing projects and the audit report of
,CAG on them (except those public undertakings which are
,allotted to the Committee on Public Undertakings)
,4. To examine the accounts of autonomous and semi-
,"autonomous bodies, the audit of which is conducted by the"
,CAG
,5. To consider the report of the CAG relating to the audit of any
,receipt or to examine the accounts of stores and stocks
,6. To examine the money spent on any service during a
,financial year in excess of the amount granted by the Lok
,Sabha for that purpose
,"In the fulfillment of the above functions, the committee is"
,"assisted by the CAG. In fact, the CAG acts as a guide, friend and"
,philosopher of the committee.
,"On the role played by the committee, Ashok Chanda (who"
,himself has been a CAG of India) observed: “Over a period of
,"years, the committee has entirely fulfilled the expectation that it"
,should develop into a powerful force in the control of public
,expenditure. It may be claimed that the traditions established and
,conventions developed by the Public Accounts Committee
,conform to the highest traditions of a parliamentary democracy.”5
,"However, the effectiveness of the role of the committee is"
,limited by the following:
,(a) It is not concerned with the questions of policy in broader
,sense.
,(b) It conducts a post-mortem examination of accounts (showing
,the expenditure already incurred).
,(c) It cannot intervene in the matters of day-to-day
,administration.
, (d) Its recommendations are advisory and not binding on the
,ministries.
,(e) It is not vested with the power of disallowance of
,expenditures by the departments.
,"(f) It is not an executive body and hence, cannot issue an order."
,Only the Parliament can take a final decision on its findings.
,
,Estimates Committee
,The origin of this committee can be traced to the standing
,financial committee set up in 1921. The first Estimates Committee
,in the post-independence era was constituted in 1950 on the
,"recommendation of John Mathai, the then finance minister."
,"Originally, it had 25 members but in 1956 its membership was"
,raised to 30. All the thirty members are from Lok Sabha only. The
,Rajya Sabha has no representation in this committee. These
,members are elected by the Lok Sabha every year from amongst
,"its own members, according to the principles of proportional"
,"representation by means of a single transferable vote. Thus, all"
,parties get due representation in it. The term of office is one year.
,A minister cannot be elected as a member of the committee. The
,chairman of the committee is appointed by the Speaker from
,amongst its members and he is invariably from the ruling party.
,The function of the committee is to examine the estimates
,included in the budget and suggest ‘economies’ in public
,"expenditure. Hence, it has been described as a ‘continuous"
,economy committee’.
,"In more detail, the functions of the committee are:"
,"1. To report what economies, improvements in organisation,"
,efficiency and administrative reform consistent with the
,"policy underlying the estimates, can be affected"
,2. To suggest alternative policies in order to bring about
,efficiency and economy in administration
,3. To examine whether the money is well laid out within the
,limits of the policy implied in the estimates
,4. To suggest the form in which the estimates are to be
,presented to Parliament
,The Committee shall not exercise its functions in relation to
,such public undertakings as are allotted to the Committee on
,Public Undertakings. The Committee may continue the
,"examination of the estimates from time to time, throughout the"
,financial year and report to the House as its examination
,proceeds. It shall not be incumbent on the Committee to examine
,the entire estimates of any one year. The demands for grants may
,be finally voted despite the fact that the Committee has made no
,report.
,"However, the effectiveness of the role of the committee is"
,limited by the following:
,(a) It examines the budget estimates only after they have been
,"voted by the Parliament, and not before that."
,(b) It cannot question the policy laid down by the Parliament.
,(c) Its recommendations are advisory and not binding on the
,ministries.
,(d) It examines every year only certain selected ministries and
,"departments. Thus, by rotation, it would cover all of them"
,over a number of years.
,(e) It lacks the expert assistance of the CAG which is available
,to the Public Accounts Committee.
,(f) Its work is in the nature of a postmortem.
,
,Committee on Public Undertakings
,This committee was created in 1964 on the recommendation of
,"the Krishna Menon Committee. Originally, it had 15 members (10"
,"from the Lok Sabha and 5 from the Rajya Sabha). However, in"
,"1974, its membership was raised to 22 (15 from the Lok Sabha"
,and 7 from the Rajya Sabha). The members of this committee are
,elected by the Parliament every year from amongst its own
,members according to the principle of proportional representation
,"by means of a single transferable vote. Thus, all parties get due"
,representation in it. The term of office of the members is one year.
,A minister cannot be elected as a member of the committee. The
,chairman of the committee is appointed by the Speaker from
,amongst its members who are drawn from the Lok Sabha only.
,"Thus, the members of the committee who are from the Rajya"
,Sabha cannot be appointed as the chairman.
,The functions of the committee are:
,1. To examine the reports and accounts of public undertakings
,     2. To examine the reports of the Comptroller and Auditor
,General on public undertakings
,3. To examine (in the context of autonomy and efficiency of
,public undertakings) whether the affairs of the public
,undertakings are being managed in accordance with sound
,business principles and prudent commercial practices
,4. To exercise such other functions vested in the public
,accounts committee and the estimates committee in relation
,to public undertakings which are allotted to it by the Speaker
,from time to time
,The committee is not to examine and investigate any of the
,following:
,(i) Matters of major government policy as distinct from business
,or commercial functions of the public undertakings
,(ii) Matters of day-to-day administration
,(iii) Matters for the consideration of which machinery is
,established by any special statute under which a particular
,public undertaking is established
,"Further, the effectiveness of the role of the committee is limited"
,by the following:
,(a) It cannot take up the examination of more than ten to
,twelve public undertakings in a year.
,(b) Its work is in the nature of a post-mortem.
,(c) It does not look into technical matters as its members
,are not technical experts.
,(d) Its recommendations are advisory and not binding on
,the ministries.
, DEPARTMENTAL STANDING COMMITTEES
,
,On the recommendation of the Rules Committee of the Lok
,"Sabha, 17 Departmentally-Related Standing Committees"
,"(DRSCs) were set up in the Parliament in 1993.6 In 2004, seven"
,"more such committees were setup, thus increasing their number"
,from 17 to 24.
,The main objective of the standing committees is to secure
,"more accountability of the Executive (i.e., the Council of Ministers)"
,"to the Parliament, particularly financial accountability. They also"
,assist the Parliament in debating the budget more effectively.7
,The 24 standing committees cover under their jurisdiction all
,the ministries / departments of the Central Government.
,Each standing committee consists of 31 members (21 from Lok
,Sabha and 10 from Rajya Sabha). The members of the Lok
,Sabha are nominated by the Speaker from amongst its own
,"members, just as the members of the Rajya Sabha are nominated"
,by the Chairman from amongst its members.8
,A minister is not eligible to be nominated as a member of any of
,"the standing committees. In case a member, after his nomination"
,"to any of the standing committees, is appointed a minister, he then"
,ceases to be a member of the committee.
,The term of office of each standing committee is one year from
,the date of its constitution.
,"Out of the 24 standing committees, 8 work under the Rajya"
,Sabha and 16 under the Lok Sabha.9
,The 24 standing committees and the ministries / departments
,placed under their jurisdiction are shown below in Table 23.1.
,The functions of each of the standing committees are:
,1. To consider the demands for grants of the concerned
,ministries / departments before they are discussed and
,voted in the Lok Sabha. Its report should not suggest
,anything of the nature of cut motions
,2. To examine bills pertaining to the concerned ministries /
,departments
,3. To consider annual reports of ministries / departments
,    4. To consider national basic long-term policy documents
,presented to the Houses
,The following limitations are imposed on the functioning of
,these standing committees:
,(i) They should not consider the matters of day-to-day
,administration of the concerned ministries / departments.
,
,Table 23.1 Departmental Standing Committees and their
,Jurisdiction (2019)
,Sl.No. Name of the Committees      Ministries / Departments
,Covered
,I. Committees under Rajya Sabha
,1.    Committee on Commerce      Commerce and Industry
,2.    Committee on Home Affairs (1) Home Affairs
,(2) Development of North-
,Eastern Region
,3.    Committee on Human         (1) Human        Resource
,Resource Development           Development
,(2) Youth   Affairs   and
,Sports
,(3) Women    and    Child
,Development
,4.    Committee on Industry      (1) Heavy Industries and
,Public Enterprises
,"(2) Micro,    Small    and"
,Medium Enterprises
,5.    Committee on Science &    (1) Science           and
,"Technology, Environment &     Technology"
,Forests                   (2) Space
,(3) Earth Sciences
,(4) Atomic Energy
,"(5) Environment, Forests"
,and Climate Change
,"6.    Committee on Transport,    (1) Civil Aviation"
,Tourism and Culture
,                                 (2) Road     Transport    &
,Highways
,(3) Shipping
,(4) Culture
,(5) Tourism
,7.    Committee on Health &      (1) Health   and  Family
,Family Welfare                 Welfare
,"(2) Ayurveda, Yoga and"
,"Naturopathy,  Unani,"
,Siddha          and
,Homoeopathy (AYUSH)
,"8.    Committee on Personnel,    (1) Law and Justice"
,"Public Grievances, Law and (2) Personnel,      Public"
,Justice                        Grievances        and
,Pensions
,II. Committees under Lok Sabha
,9.    Committee on Agriculture   (1) Agriculture        and
,Farmers’ Welfare
,"(2) Fisheries,      Animal"
,Husbandry and Dairing
,(3) Food        Processing
,Industries
,10.   Committee on Information   (1) Communication
,Technology                 (2) Electronics           &
,Information Technology
,(3) Information           &
,Broadcasting
,11.   Committee on Defence       Defence
,12.   Committee on Energy        (1) New and        Renewable
,Energy
,(2) Power
,13.   Committee on External      External Affairs
,Affairs
,14.   Committee on Finance       (1) Finance
,(2) Corporate Affairs
,                                   (3) Planning
,(4) Statistics           and
,Programme
,Implementation
,"15.   Committee on Food,         Consumer Affairs, Food and"
,Consumer Affairs and       Public Distribution
,Public Distribution
,16.   Committee on Labour        (1) Labour & Employment
,(2) Skill Development &
,Entrepreneurship
,(3) Textiles
,17.   Committee on Petroleum & Petroleum and Natural Gas
,Natural Gas
,18.   Committee on Railways      Railways
,19.   Committee on Urban         Housing and Urban Affairs
,Development
,20.   Committee on Water         Jal Shakti
,Resources
,21.   Committee on Chemicals     Chemicals and Fertilizers
,and Fertilizers
,22.   Committee on Rural         (1) Rural Development
,Development                (2) Panchayati Raj
,23.   Committee on Coal and      (1) Coal
,Steel                      (2) Mines
,(3) Steel
,24.   Committee on Social        (1) Social     Justice   and
,Justice and Empowerment        Empowerment
,(2) Tribal Affairs
,(3) Minority Affairs
,
,(ii) They should not generally consider the matters which are
,considered by other parliamentary committees.
,It should be noted here that the recommendations of these
,committees are advisory in nature and hence not binding on the
,Parliament.
,    The following procedure shall be followed by each of the
,standing committees in their consideration of the demands for
,"grants, and making a report thereon to the Houses."
,"(a) After general discussion on the budget in the Houses is over,"
,the Houses shall be adjourned for a fixed period.
,(b) The committees shall consider the demands for grants of the
,concerned ministries during the aforesaid period.
,(c) The committees shall make their report within the period and
,shall not ask for more time.
,(d) The demands for grants shall be considered by the House in
,the light of the reports of the committees.
,(e) There shall be a separate report on the demands for grants
,of each ministry.
,The following procedure shall be followed by each of the
,standing committees in examining the bills and making report
,thereon.
,(a) The committee shall consider the general principles and
,clauses of bills referred to it.
,(b) The Committee shall consider only such bills as introduced in
,either of the Houses and referred to it.
,(c) The Committee shall make report on bills in a given time.
,The merits of the standing committee system in the Parliament
,are:
,(1) Their proceedings are devoid of any party bias.
,(2) The procedure adopted by them is more flexible than in the
,Lok Sabha.
,(3) The system makes parliamentary control over executive
,"much more detailed, close, continuous, in-depth and"
,comprehensive.
,(4) The system ensures economy and efficiency in public
,expenditure as the ministries / departments would now be
,more careful in formulating their demands.
,(5) They facilitate opportunities to all the members of Parliament
,to participate and understand the functioning of the
,government and contribute to it.
,(6) They can avail of expert opinion or public opinion to make the
,reports. They are authorised to invite experts and eminent
,    persons to testify before them and incorporate their opinions
,in their reports.
,(7) The opposition parties and the Rajya Sabha can now play a
,greater role in exercising financial control over the executive.
, COMMITTEES TO INQUIRE
,
,Committee on Petitions
,This committee examines petitions on bills and on matters of
,general public importance. It also entertains representations from
,individuals and associations on matters pertaining to Union
,"subjects. The Lok Sabha committee consists of 15 members,"
,while the Rajya Sabha committee consists of 10 members.
,
,Committee of Privileges
,The functions of this committee are semi-judicial in nature. It
,examines the cases of breach of privileges of the House and its
,members and recommends appropriate action. The Lok Sabha
,"committee has 15 members, while the Rajya Sabha committee"
,has 10 members.
,
,Ethics Committee
,This committee was constituted in Rajya Sabha in 1997 and in
,Lok Sabha in 2000. It enforces the code of conduct of members of
,Parliament. It examines the cases of misconduct and
,"recommends appropriate action. Thus, it is engaged in"
,maintaining discipline and decorum in Parliament.
, COMMITTEES TO SCRUTINISE AND CONTROL
,
,Committee on Government Assurances
,"This committee examines the assurances, promises and"
,undertakings given by ministers from time to time on the floor of
,the House and reports on the extent to which they have been
,"carried through. In the Lok Sabha, it consists of 15 members and"
,"in the Rajya Sabha, it consists of 10 members. It was constituted"
,in 1953.
,
,Committee on Subordinate Legislation
,This committee examines and reports to the House whether the
,"powers to make regulations, rules, sub-rules and bye-laws"
,delegated by the Parliament or conferred by the Constitution to
,the Executive are being properly exercised by it. In both the
,"Houses, the committee consists of 15 members. It was constituted"
,in 1953.
,
,Committee on Papers Laid on the Table
,This committee was constituted in 1975. The Lok Sabha
,"Committee has 15 members, while the Rajya Sabha Committee"
,has 10 members. It examines all papers laid on the table of the
,House by ministers to see whether they comply with provisions of
,"the Constitution, or the related Act or Rule. It does not examine"
,statutory notifications and orders that fall under the jurisdiction of
,the Committee on Subordinate Legislation.
,
,Committee on Welfare of SCs and STs
,This committee consists of 30 members (20 from Lok Sabha and
,10 from Rajya Sabha). Its functions are: (i) to consider the reports
,of the National Commission for the SCs and the National
,Commission for the STs; (ii) to examine all matters relating to the
,"welfare of SCs and STs, like implementation of constitutional and"
,"statutory safeguards, working of welfare programmes, etc."
,
,Committee on Empowerment of Women
,This committee was constituted in 1997 and consists of 30
,members (20 from Lok Sabha and 10 from Rajya Sabha). It
,considers the reports of the National Commission for Women and
,examines the measures taken by the Union Government to
,"secure status, dignity and equality for women in all fields."
,
,Joint Committee on Offices of Profit
,This committee examines the composition and character of
,"committees and other bodies appointed by the Central, state and"
,union territory governments and recommends whether persons
,holding these offices should be disqualified from being elected as
,members of Parliament or not. It consists of 15 members (10 from
,Lok Sabha and 5 from Rajya Sabha).
, COMMITTEES RELATING TO THE DAY-TO-DAY
,BUSINESS OF THE HOUSE
,
,Business Advisory Committee
,This committee regulates the programme and time table of the
,House. It allocates time for the transaction of legislative and other
,business brought before the House by the government. The Lok
,Sabha committee consists of 15 members including the Speaker
,"as its chairman. In the Rajya Sabha, it has 11 members including"
,the Chairman as its exofficio chairman.
,
,Committee on Private Members’ Bills and Resolutions
,This committee classifies bills and allocates time for the
,discussion on bills and resolutions introduced by private members
,(other than ministers). This is a special committee of the Lok
,Sabha and consists of 15 members including the Deputy Speaker
,as its chairman. The Rajya Sabha does not have any such
,committee. The same function in the Rajya Sabha is performed by
,the Business Advisory Committee of that House.
,
,Rules Committee
,This committee considers the matters of procedure and conduct of
,business in the House and recommends necessary amendments
,or additions to the rules of the House. The Lok Sabha committee
,consists of 15 members including the Speaker as its ex-officio
,"chairman. In the Rajya Sabha, it consists of 16 members including"
,the Chairman as its exofficio chairman.
,
,Committee on Absence of Members
,This committee considers all applications from members for leave
,"of absence from the sittings of the House, and examines the"
,cases of members who have been absent for a period of 60 days
,or more without permission. It is a special committee of the Lok
,Sabha and consists of 15 members. There is no such committee
,in the Rajya Sabha and all such matters are dealt by the House
,itself.
, HOUSE-KEEPING COMMITTEES
,
,General Purposes Committee
,This committee considers and advises on matters concerning
,"affairs of the House, which do not fall within the jurisdiction of any"
,"other parliamentary committee. In each House, this committee"
,consists of the presiding officer (Speaker / Chairman) as its ex-
,"officio chairman, Deputy Speaker (Deputy Chairman in the case of"
,"Rajya Sabha), members of panel of chairpersons (panel of vice-"
,"chairpersons in the case of Rajya Sabha), chairpersons of all the"
,"departmental standing committees of the House, leaders of"
,recognised parties and groups in the House and such other
,members as nominated by the presiding officer.
,
,House Committee
,This committee deals with residential accommodation of members
,"and other amenities like food, medical aid, etc., accorded to them"
,in their houses and hostels in Delhi. Both the Houses have their
,"respective House Committees. In the Lok Sabha, it consists of 12"
,members.
,
,Library Committee
,This committee considers all matters relating to library of the
,Parliament and assists the members in utilising the library’s
,services. It consists of nine members (six from Lok Sabha and
,three from Rajya Sabha).
,
,Joint Committee on Salaries and Allowances of Members
,"This committee was constituted under the Salary, Allowances and"
,"Pension of Members of Parliament Act, 1954. It consists of 15"
,members (10 from Lok Sabha and 5 from Rajya Sabha). It frames
,"rules for regulating payment of salary, allowances and pension to"
,members of Parliament.
, CONSULTATIVE COMMITTEES
,Consultative committees are attached to various ministries /
,departments of the Central Government. They consist of members
,of both the Houses of Parliament. The Minister / Minister of State
,in charge of the Ministry concerned acts as the chairman of the
,consultative committee of that ministry.
,These committees provide a forum for informal discussions
,between the ministers and the members of Parliament on policies
,and programmes of the government and the manner of their
,implementation.
,These committees are constituted by the Ministry of
,"Parliamentary Affairs. The guidelines regarding the composition,"
,functions and procedures of these committees are formulated by
,this Ministry. The Ministry also makes arrangements for holding
,their meetings both during the session and the inter-session
,period of Parliament.
,The membership of these committees is voluntary and is left to
,the choice of the members and the leaders of their parties. The
,maximum membership of a committee is 30 and the minimum is
,10
,These committees are normally constituted after the new Lok
,"Sabha is constituted, after General Elections for the Lok Sabha. In"
,"other words, these committees shall stand dissolved upon"
,dissolution of every Lok Sabha and shall be reconstituted upon
,constitution of each Lok Sabha.
,"In addition, separate Informal Consultative Committees of the"
,members of Parliament are also constituted for all the Railway
,Zones. Members of Parliament belonging to the area falling under
,a particular Railway Zone are nominated on the Informal
,Consultative Committee of that Railway Zone.
,Unlike the Consultative Committees attached to various
,"ministries / departments, the meetings of the Informal Consultative"
,Committees are to be arranged during the session periods only.
,
,
,NOTES AND REFERENCES
,1. A Minister is not eligible for election or nomination to the
,"Financial     Committees,        Departmental      Standing"
,"Committees, and Committees on Empowerment of"
,"Women,        Government         Assurances,      Petitions,"
,Subordinate Legislation and Welfare of Scheduled
,Castes and Scheduled Tribes.
,2. Consultative Committees are explained at the end of
,this Chapter.
,3. A joint committee consists of members of both the
,Houses of Parliament.
,"4. The Railway Convention Committee, 1949 was the first"
,Committee after independence. This Committee and
,subsequent Committees confined themselves to
,determining the Rate of Dividend payable by the
,"Railways to General Revenues. Since 1971, the"
,Railway Convention Committees have been taking up
,subjects which have a bearing on the working of the
,Railways and Railway Finances.
,"5. Ashok Chanda: Indian Administration, George Allen &"
,"Unwin Ltd, London, 1967, P. 180."
,"6. In 1989, three Standing Committees were constituted"
,"which dealt with Agriculture, Science & Technology and"
,"Environment & Forests. In 1993, they were superseded"
,by the Departmentally-Related Standing Committees
,(DRSCs).
,7. While inaugurating the Standing Committee system in
,"the Central Hall of Parliament on 31st March 1993, the"
,then Vice-President of India and the Chairman of Rajya
,"Sabha, K.R. Narayanan observed that the main purpose"
,of these Committees is: “to ensure the accountability of
,Government to Parliament through more detailed
,consideration of measures in these Committees. The
,intention is not to weaken or criticise the administration
,but to strengthen it by investing it with more meaningful
,Parliamentary support”.
,"8. Till 13th Lok Sabha, each Standing Committee"
,consisted of not more than 45 members - 30 to be
,nominated by the Speaker from amongst the members
,   of Lok Sabha and 15 to be nominated by the Chairman
,"from amongst the members of Rajya Sabha. However,"
,"with restructuring of DRSCs in July 2004, each DRSC"
,consists of 31 members - 21 from Lok Sabha and 10
,from Rajya Sabha.
,9. The procedure regarding constitution and functioning of
,"DRSCs, serviced by Lok Sabha, has been enumerated"
,in Rules 331C to 331Q of the Rules of Procedure and
,Conduct of Business in the Lok Sabha. Rules 268 to
,277 of the Rules of Procedure and Conduct of Business
,in the Rajya Sabha govern DRSCs serviced by Rajya
,Sabha.
, 24      Parliamentary Forums
,
,
,ESTABLISHMENT OF THE FORUMS
,The first Parliamentary Forum on Water Conservation and
,"Management was constituted in the year 2005.1 Subsequently,"
,"seven more Parliamentary forums were constituted. At present,"
,there are eight Parliamentary forums.2
,1. Parliamentary Forum on Water Conservation and
,Management (2005)
,2. Parliamentary Forum on Youth (2006)
,3. Parliamentary Forum on Children (2006)
,4. Parliamentary Forum on Population and Public Health
,(2006)
,5. Parliamentary Forum on Global Warming and Climate
,Change (2008)
,6. Parliamentary Forum on Disaster Management (2011)
,7. Parliamentary Forum on Artisans and Crafts-people (2013)
,8. Parliamentary Forum on Millennium Development Goals
,(2013)
, OBJECTIVES OF THE FORUMS
,
,The objectives behind the constitution of the Parliamentary forums
,are:
,(i) To provide a platform to the members to have interactions
,"with the ministers concerned, experts and key officials from"
,the nodal ministries with a view to have a focused and
,meaningful discussion on critical issues with a result-oriented
,approach for speeding up the implementation process;
,(ii) To sensitise members about the key areas of concern and
,also about the ground level situation and equip them with the
,"latest information, knowledge, technical know-how and"
,valuable inputs from experts both from the country and
,abroad for enabling them to raise these issues effectively on
,the Floor of the House and in the meetings of the
,Departmentally-Related Standing Committees (DRSCs); and
,(iii) To prepare a data-base through collection of data on critical
,"issues from ministries concerned, reliable NGOs,"
,"newspapers, United Nations, Internet, etc. and circulation"
,thereof to the members so that they can meaningfully
,participate in the discussions of the forums and seek
,clarifications from experts or officials from the Ministry present
,in the meetings.
,It has been mandated that the Parliamentary Fora will not
,interfere with or encroach upon the jurisdiction of the
,Departmentally-Related Standing Committees of the Ministry/
,Department concerned.
, COMPOSITION OF THE FORUMS
,The Speaker of Lok Sabha is the ex-officio President of all the
,Forums except the Parliamentary Forum on Population and Public
,Health wherein the Chairman of Rajya Sabha is the ex-officio
,President and the Speaker is the ex-officio Co-President. The
,"Deputy Chairman of Rajya Sabha, the Deputy Speaker of Lok"
,"Sabha, the concerned Ministers and the Chairman of"
,Departmentally-Related Standing Committees are the ex-officio
,VicePresidents of the respective Forums.
,Each Forum consists of not more than 31 members (excluding
,"the President, Co-President and Vice-Presidents) out of whom not"
,more than 21 are from the Lok Sabha and not more than 10 are
,from the Rajya Sabha.
,"Members (other than the President, Co-President and Vice-"
,Presidents) of these forums are nominated by the Speaker/
,Chairman from amongst the leaders of various political
,"parties/groups or their nominees, who have special"
,knowledge/keen interest in the subject.3
,The duration of the office of members of the forum is co-
,terminus with their membership in the respective Houses. A
,member may also resign from the forum by writing to the
,Speaker/Chairman.
,The President of the forum appoints a member-convener for
,"each forum to conduct regular, approved programmes/meetings of"
,the forum in consultation with the President. The meetings of the
,"forums are held from time to time, as may be necessary, during"
,Parliament sessions.
, FUNCTIONS OF THE FORUMS
,
,Parliamentary Forum on Water Conservation and
,Management
,The functions of the forum are:
,1. To identify problems relating to water and make
,suggestions/recommenda-tions for consideration and
,appropriate action by Government/organisations concerned
,2. To identify the ways of involving members of Parliament in
,conservation and augmentation of water resources in their
,respective states/constituencies
,3. To organise seminars/workshops to create awareness for
,conservation and efficient management of water
,4. To undertake such other related task as it may deem fit
,
,Parliamentary Forum on Youth
,The functions of this forum are:
,1. To have focused deliberations on strategies to leverage
,human capital in the youth for accelerating development
,initiatives
,2. To build greater awareness amongst public leaders and at
,the grass-roots level of the potential of youth for effecting
,socio-economic change
,3. To interact on a regular basis with youth representatives and
,"leaders, in order to better appreciate their hopes,"
,"aspirations, concerns and problems"
,4. To consider ways for improving Parliament’s out-reach to
,"different sections of youth, in order to reinforce their faith"
,and commitment in democratic institutions and encourage
,their active participation therein
,"5. To hold consultations with experts, national and international"
,academicians and government agencies concerned on
,redesigning of public policy in the matter of youth
,empowerment.4
,Parliamentary Forum on Children
,The functions of the forum are:
,1. To further enhance awareness and attention of
,Parliamentarians towards critical issues affecting children’s
,well being so that they may provide due leadership to ensure
,their rightful place in the development process
,2. To provide a platform to Parliamentarians to exchange
,"ideas, views, experiences, expert practices in relation to"
,"children, in a structured manner, through workshops,"
,"seminars, orientation programmes, etc."
,3. To provide Parliamentarians an interface with civil society for
,"highlighting children’s issues, including, inter-alia, the"
,"voluntary sector, media and corporate sector, and thereby to"
,foster effective strategic partnerships in this regard
,"4. To enable Parliamentarians to interact, in an institutionalised"
,manner with specialised UN agencies like the UNICEF and
,"other comparable multilateral agencies on expert reports,"
,"studies, news and trend-analyses, etc., world-wide, which"
,are germane to developments in the sector
,"5. To undertake any other tasks, projects, assignments, etc., as"
,the Forum may deem fit.
,
,Parliamentary Forum on Population and Public Health
,The functions of the forum are:
,1. To have focused deliberations on strategies relating to
,population stabilisation and matters connected therewith
,2. To discuss and prepare strategies on issues concerning
,public health
,"3. To build greater awareness in all sections of the society,"
,"particularly at the grassroot level, regarding population"
,control and public health
,4. To hold comprehensive dialogue and discussion in the
,matter of population and public health with experts at the
,national and international levels and to have interactions
,"with multilateral organisations like WHO, United Nations"
,"Population Fund, and academicians and government"
,agencies concerned.
,Parliamentary Forum on Global Warming and Climate
,Change
,The functions of the forum are:
,1. To identify problems relating to global warming and climate
,change and make suggestions/recommendations for
,consideration      and     appropriate    action     by    the
,government/organisations concerned to reduce the extent of
,global warming
,2. To identify the ways of involving members of Parliament to
,interact with specialists of national and international bodies
,working on global warming and climate change with
,increased effort to develop new technologies to mitigate
,global warming
,3. To organise seminars/workshops to create awareness about
,the causes and effects of global warming and climate
,change among the members of Parliament
,4. To identify the ways of involving members of Parliament to
,spread awareness to prevent global warming and climate
,change
,5. To undertake such other related task as it may deem fit
,
,Parliamentary Forum on Disaster Management
,The functions of the forum are:
,1. To identify problems relating to Disaster Management and
,make suggestions / recommendations for consideration and
,appropriate action by the Government / Organizations
,concerned to reduce the effects of disasters.
,2. To identify the ways of involving Members of Parliament to
,interact with specialists of National and International Bodies
,working on Disaster Management with increased effort to
,develop new technologies to mitigate the effect of disasters.
,3. To organize seminars / workshops to create awareness
,about the causes and effects of disasters among the
,Members of Parliament.
,4. To identify the ways of involving Members of Parliament to
,spread awareness about disaster management.
,5. To undertake such other related task as it may deem fit.
,Parliamentary Forum on Artisans and Craftspeople
,The functions of the forum are:
,1. To further enhance awareness and attention to
,Parliamentarians towards critical issues affecting artisans
,and craftspeople so as to preserve and promote traditional
,art and crafts through various mechanisms.
,2. To provide a platform to Parliamentarians to exchange
,"ideas, views, experiences, expertise and best practices in"
,"relation to artisans and craftspeople, in a structured manner,"
,"through Workshops, Seminars, Orientation Programmes,"
,etc.
,3. To provide Parliamentarians an interface with civil society for
,"highlighting issues related to craftspeople and artisans,"
,"including inter alia, the Voluntary Sector, Media and"
,Corporate Sector and thereby to foster effective strategic
,partnerships in this regard
,"4. To enable Parliamentarians to interact, in an institutionalized"
,"manner with representatives of various Union Ministries,"
,Government Organizations like Khadi and Village Industries
,"Commission (KVIC), Coir Board, The Council for"
,Advancement of People’s Action and Rural Technology
,(CAPART) and other related Organizations/Bodies.
,5. To hold comprehensive dialogue and discussion on the
,matters relating to preservation of art and traditional craft
,and the promotion of artisans and craftspeople with
,experts/Organizations at the national and international
,levels.
,"6. To undertake any other Tasks, Projects, Assignments, etc."
,as the Forum may deem fit.
,
,Parliamentary Forum on Millennium Development
,Goals
,The functions of the forum are:
,1. To review and enhance awareness and attention of
,Parliamentarians towards critical issues which have bearing
,on achievement of goals/targets set under Millennium
,Development Goals by 2015.
,2. To provide a platform to Parliamentarians to exchange
,"ideas, views, experiences, expertise and best practices in"
,relation to implementation of Millennium Development Goals
,"in a structured manner, through Workshops, Seminars,"
,"Orientation Programmes, etc."
,3. To provide Parliamentarians an interface with civil society for
,highlighting issues related to Millennium Development
,"Goals, viz. eradication of poverty; hunger; achievement of"
,universal primary education; promotion of gender equality
,and empowerment of women; reduction of child mortality;
,improving maternal health; combating HIV/ AIDS; Malaria
,and other diseases; ensuring environmental sustainability
,and developing a global partnership for development.
,"4. To enable parliamentarians to interact, in an institutionalized"
,manner with specialized UN Agencies and other comparable
,"Multilateral Agencies, Expert Report, Studies, News and"
,"Trendanalyses, etc. regarding achievement of Millennium"
,Development Goals.
,"5. To undertake any other Tasks, Projects, Assignments, etc."
,as the Forum may deem fit.
,
,
,NOTES AND REFERENCES
,"1. On 12th May 2005, the then Speaker of Lok Sabha,"
,Somnath Chatterjee informed the House of his decision
,to constitute a Parliamentary forum on water
,conservation and management so that the members of
,Parliament may discuss the critical issue of water in a
,structured manner and also to raise the issue more
,"effectively on the floor of the House. Accordingly, the"
,"forum was constituted on 12th August, 2005."
,2. The years mentioned in the brackets indicate the years
,of their establishment.
,3. The Secretary-General of Lok Sabha is the Secretary to
,the forums.
,4. The Speaker also constituted four sub-forums of the
,"Parliamentary Forum on Youth, viz. (i) Sub-Forum on"
,Sports and Youth Development (ii) Sub-Forum on
,Health (iii) Sub-Forum on Education (iv) Sub-Forum on
,Employment. Each Sub-Forum has its own convener.
, 25      Parliamentary Group
,
,
,RATIONALE OF THE GROUP
,M.N. Kaul and S.L. Shakdher have nicely explained the rationale
,of the Indian Parliamentary Group (IPG) in the following way:
,The establishment and development of relations among
,parliaments constitutes part of the regular activities of national
,parliaments. Although promotion of inter-parliamentary relations
,has for many years been a significant part of the work of
,"parliamentarians, recently it has received a new thrust due to the"
,increased inter-dependence of nations in a global environment. It
,is imperative that parliamentarians will join hands to safeguard
,democracy and work in synergy to confront the challenges before
,the world and convert them into opportunities to facilitate peace
,and prosperity in their countries as well as globally.
,"Parliamentarians from different parts of the world, therefore, have"
,a forum where they can meet to discuss and find out solutions to
,their common problems. It is here that some sort of cross-
,fertilisation of ideas can take place not only between the older and
,"the younger parliaments, but also between parliamentarians"
,working under different parliamentary systems. These problems
,are no doubt discussed in inter-governmental conferences;
,"however, those discussions are not so frank and free as they can"
,be at a conclave of legislators.1
,Inter-parliamentary relations thus assume great importance
,today when the whole world is beset with many pressing
,problems. The problems that are faced by one parliament today
,"may confront another tomorrow. It is, therefore, essential that a"
,link should exist between various parliaments of the world. This
,"link is maintained by India through the exchange of delegations,"
,"goodwill missions, correspondence, documents, etc. with foreign"
,parliaments through the machinery of the IPG that acts both as
,the National Group of the Inter-Parliamentary Union (IPU) and
,also as the India Branch of the Commonwealth Parliamentary
,Association (CPA).2
, COMPOSITION OF THE GROUP
,
,IPG3 is an autonomous body. It was formed in the year 1949 in
,pursuance of a motion adopted by the Constituent Assembly
,(Legislative).4
,The membership of IPG is open to all members of Parliament.
,The former members of Parliament can also become associate
,"members of the Group.5 But, the associate members are entitled"
,to limited rights only. They are not entitled to representation at
,meetings and conferences of the IPU and the CPA. They are also
,not entitled to the travel concessions provided to members by
,certain branches of the CPA.
,The Speaker of the Lok Sabha is the ex officio president of the
,Group. The Deputy Speaker of the Lok Sabha and the Deputy
,Chairman of the Rajya Sabha are the ex officio vice-presidents of
,the Group. The SecretaryGeneral of the Lok Sabha acts as the ex
,officio Secretary-General of the Group.
, OBJECTIVES OF THE GROUP
,
,The aims and objects of the Group are mentioned below:
,1. To promote personal contacts between members of the
,Parliament of India.
,2. To study questions of public importance that are likely to
,"come up before the Parliament; arrange seminars,"
,discussions and orientation courses; and bring out
,publications for the dissemination of information to the
,members of the Group.
,"3. To arrange lectures on political, defence, economic, social"
,and educational problems by the members of the Parliament
,and distinguished persons.
,4. To arrange visits to foreign countries with a view to develop
,contacts with members of other parliaments.
, FUNCTIONS OF THE GROUP
,
,The various functions performed and activities undertaken by the
,Group are as follows:
,1. The Group acts as a link between the Parliament of India
,and the various parliaments of the world. This link is
,"maintained through exchange of delegations, goodwill"
,"missions, correspondence, documents, etc. with foreign"
,parliaments.
,2. The Group functions as the (a) National Group of the IPU
,and (b) main branch of the CPA in India.
,3. Addresses to the members of the Parliament by visiting
,Heads of State and Government of foreign countries and
,talks by eminent persons are arranged under the auspices of
,the Group.
,4. Seminars and symposia on parliamentary subjects of topical
,interest are organised periodically at national as well as
,international level.
,"5. Members of the Group, when visiting abroad, are given"
,letters of introduction to the Secretaries of the National
,Groups of the IPU and Secretaries of the CPA branches.
,The Indian Missions in the countries of visit are also suitably
,informed so as to enable them to get assistance and usual
,courtesies.
,6. Only those members of the Parliament who are members of
,the Group of at least six months’ standing at the time of the
,"composition of the delegation, may be included in the Indian"
,Parliamentary delegations to foreign countries.
,7. An uninterrupted flow of information to members regarding
,the activities of the Group is maintained through the IPG
,Newsletter brought out every quarter. It is sent regularly to
,"all members of the Group, including associate members."
,"8. As per decision of the Group, an award of Outstanding"
,Parliamentarian was instituted in the year 1995 to be given
,"annually. A committee of five persons, constituted by the"
,"Speaker of the Lok Sabha, invites and finalises the"
,nomination for the award.
,"9. To encourage bilateral relations, the Group constitutes"
,Parliamentary Friendship Groups with other countries in the
,Parliament.6 The aims and objectives of the Friendship
,"Group are to maintain political, social and cultural contacts"
,between the two countries and to assist in exchanges of
,information and experiences on issues relating to
,parliamentary activities.
, THE GROUP AND IPU7
,
,The IPU is an international organisation of the parliaments of
,"sovereign states. At present, the IPU consists of 153 parliaments"
,of sovereign nations. Its aim is to work for peace and cooperation
,among peoples and for the firm establishment of representative
,"institutions. It fosters contacts, coordination and the exchange of"
,experience among parliaments and parliamentarians of all
,member countries and contributes to better knowledge of the
,working of representative institutions. It also expresses its views
,on all burning questions of international importance for necessary
,effective implementation of parliamentary actions and suggests
,avenues for improving the working standard and capacity of
,international institutions.
,"The main advantages of membership of the Group, insofar as"
,"its functions as the National Group of the IPU are concerned, are"
,as follows:
,1. It helps members of Indian Parliamentary delegations to
,develop contacts with the parliamentarians of the member
,countries of the IPU.
,2. The events provide an opportunity to study and understand
,contemporary changes/reforms taking place in various
,countries of the world.
,3. It provides facilities to meet parliamentarians in different
,countries during tours in abroad or in India when visiting
,Parliamentarians are here.
,4. The members of the Group are eligible to visit foreign
,countries as members of the Indian Parliamentary
,delegations to Inter-Parliamentary Conferences.
,"In the recent past, members of the Group have been holding"
,"various positions in the IPU bodies, namely, office bearers in"
,"different committees of the IPU, Rapporteurs, Chairman of"
,"Drafting Committees, etc. and by virtue of the same, the Group"
,has been successful in putting forward effectively the view point of
,India on various important issues dealt in the IPU meetings.
, THE GROUP AND CPA8
,
,The CPA is an association of about 17000 Commonwealth
,"Parliamentarians spread over 175 National, State, Provincial and"
,Territorial Parliaments. Its aims are to promote knowledge and
,"understanding of the constitutional, legislative, economic, social"
,and cultural systems within a parliamentary democratic framework
,with particular reference to the countries of the Commonwealth of
,Nations and to countries having close historical and parliamentary
,associations with it. Its mission is to promote the advancement of
,parliamentary democracy by enhancing knowledge and
,understanding of democratic governance and by building an
,informed parliamentary community able to deepen the
,Commonwealth’s democratic commitment and to further co-
,operation among its parliaments and legislatures.
,"The main advantages of membership of the Group, insofar as"
,its functions as the main branch of the CPA in India are
,"concerned, are as follows:"
,1. Conferences and Seminars: Membership provides an
,opportunity for participation in the plenary and regional
,"conferences, seminars, visits and exchanges of delegations."
,2. Publications: All members of the Group are entitled to
,"receive, free of charge, ‘The Parliamentarian’ quarterly and"
,"the newsletter, ‘First Reading’, every second month.9"
,3. Information: The Parliamentary Information and Reference
,Centre of the CPA Secretariat provides information to
,"members        on      parliamentary,    constitutional    and"
,Commonwealth matters.
,4. Introductions: The CPA branches readily assist in
,arranging introductions for members visiting other
,jurisdictions.
,5. Parliamentary       Facilities:    Members     visiting   other
,Commonwealth         countries     are   normally     accorded
,"parliamentary courtesies, especially access to debates and"
,local members.
,6. Travel Facilities: Some branches provide for a designated
,number of their members annually to undertake study tours
,  of Commonwealth and other countries to compare political
,and procedural developments. Other branches arrange ad
,hoc visits.
,
,
,NOTES AND REFERENCES
,"1. M.N. Kaul and S.L. Shakdher, Practice and Procedure"
,"of Parliament, Lok Sabha Secretariat, Sixth Edition,"
,"2009, p. 1160."
,2. Ibid.
,3. Hereafter referred to as ‘the Group’.
,"4. The concerned motion was adopted on August 16,"
,1948
,5. A member or ex-member of Parliament can become a
,life member of the Group on payment of a fixed life
,subscription.
,6. Each Friendship Group consists of 22 sitting members
,of Parliament (15 from the Lok Sabha and 7 from the
,Rajya Sabha) in proportion to the strength of parties in
,the Lok Sabha and the Rajya Sabha. The Speaker of
,the Lok Sabha appoints the President and two Vice-
,Presidents (one from each House) of the Friendship
,Group.
,"7. Hand Book for Members of Lok Sabha, Fifteenth"
,"Edition, 2009, pp. 207–208."
,"8. Ibid, pp. 208–209."
,"9. These are published by the CPA Secretariat, London."
, 26      Supreme Court
,
,
,
,
,U
,"nlike the American Constitution, the Indian Constitution"
,has established an integrated judicial system with the
,Supreme Court at thetop and the high courts below it.
,"Under a high court (and below the state level), there is a hierarchy"
,"of subordinate courts, that is, district courts and other lower"
,"courts. This single system of courts, adopted from the"
,"Government of India Act of 1935, enforces both Central laws as"
,"well as the state laws. In USA, on the other hand, the federal laws"
,are enforced by the federal judiciary and the state laws are
,enforced by the state judiciary. There is thus a double system of
,courts in USA–one for the centre and the other for the states. To
,"sum up, India, although a federal country like the USA, has a"
,unified judiciary and one system of fundamental law and justice.
,"The Supreme Court of India was inaugurated on January 28,"
,"1950. It succeeded the Federal Court of India, established under"
,"the Government of India Act of 1935. However, the jurisdiction of"
,the Supreme Court is greater than that of its predecessor. This is
,"because, the Supreme Court has replaced the British Privy"
,Council as the highest court of appeal.1
,Articles 124 to 147 in Part V of the Constitution deal with the
,"organisation, independence, jurisdiction, powers, procedures and"
,so on of the Supreme Court. The Parliament is also authorised to
,regulate them.
, COMPOSITION AND APPOINTMENT
,
,"At present, the Supreme Court consists of thirty-four judges (one"
,"chief justice and thirty three other judges). In 2019, the centre"
,notified an increase in the number of Supreme Court judges from
,"thirty-one to thirty-four, including the Chief Justice of India. This"
,followed the enactment of the Supreme Court (Number of Judges)
,"Amendment Act, 2019. Originally, the strength of the Supreme"
,Court was fixed at eight (one chief justice and seven other
,judges). The Parliament has increased this number of other
,"judges progressively to ten in 1956, to thirteen in 1960, to"
,"seventeen in 1977, to twenty-five in 1986, to thirty in 2008 and to"
,thirty-three in 2019.
,
,Appointment of Judges
,The judges of the Supreme Court are appointed by the president.
,The chief justice is appointed by the president after consultation
,with such judges of the Supreme Court and high courts as he
,deems necessary. The other judges are appointed by president
,after consultation with the chief justice and such other judges of
,the Supreme Court and the high courts as he deems necessary.
,The consultation with the chief justice is obligatory in the case of
,appointment of a judge other than Chief justice.
,
,Controversy over Consultation
,The Supreme Court has given different interpretation of the word
,‘consultation’ in the above provision. In the First Judges case
,"(1982), the Court held that consultation does not mean"
,"concurrence and it only implies exchange of views. But, in the"
,"Second Judges case (1993), the Court reversed its earlier ruling"
,and changed the meaning of the word consultation to
,"concurrence. Hence, it ruled that the advice tendered by the Chief"
,Justice of India is binding on the President in the matters of
,"appointment of the judges of the Supreme Court. But, the Chief"
,Justice would tender his advice on the matter after consulting two
,"of his seniormost colleagues. Similarly, in the Third Judges case2"
,"(1998), the Court opined that the consultation process to be"
,adopted by the Chief justice of India requires ‘consultation of
,plurality judges’. The sole opinion of the chief justice of India does
,not constitute the consultation process. He should consult a
,collegium of four seniormost judges of the Supreme Court and
,"even if two judges give an adverse opinion, he should not send"
,the recommendation to the government. The court held that the
,recommendation made by the chief justice of India without
,complying with the norms and requirements of the consultation
,process are not binding on the government.
,The 99th Constitutional Amendment Act of 2014 and the
,National Judicial Appointments Commission Act of 2014 have
,replaced the collegium system of appointing judges to the
,Supreme Court and High Courts with a new body called the
,"National Judicial Appointments Commission (NJAC). However, in"
,"2015, the Supreme Court has declared both the 99th"
,Constitutional Amendment as well as the NJAC Act as
,"unconstitutional and void. Consequently, the earlier collegium"
,system became operative again. This verdict was delivered by the
,Supreme Court in the Fourth Judges case2a (2015). The court
,"opined that the new system (i.e., NJAC) would affect the"
,independence of the judiciary.
,
,Appointment of Chief
,"Justice From 1950 to 1973, the practice has been to appoint the"
,seniormost judge of the Supreme Court as the chief justice of
,India. This established convention was violated in 1973 when A.N.
,Ray was appointed as the Chief Justice of India by superseding
,"three senior judges.3 Again in 1977, M.U. Beg was appointed as"
,the chief justice of India by superseding the then senior-most
,judge.4 This discretion of the government was curtailed by the
,"Supreme Court in the Second Judges Case (1993), in which the"
,Supreme Court ruled that the seniormost judge of the Supreme
,Court should alone be appointed to the office of the chief justice of
,India.
," QUALIFICATIONS, OATH AND SALARIES"
,
,Qualifications of Judges
,A person to be appointed as a judge of the Supreme Court should
,have the following qualifications:
,1. He should be a citizen of India.
,2. (a) He should have been a judge of a High Court (or high
,courts in succession) for five years; or (b) He should have
,been an advocate of a High Court (or High Courts in
,succession) for ten years; or (c) He should be a
,distinguished jurist in the opinion of the president.
,"From the above, it is clear that the Constitution has not"
,prescribed a minimum age for appointment as a judge of the
,Supreme Court.
,
,Oath or Affirmation
,"A person appointed as a judge of the Supreme Court, before"
,"entering upon his Office, has to make and subscribe an oath or"
,"affirmation before the President, or some person appointed by him"
,"for this purpose. In his oath, a judge of the Supreme Court"
,swears:
,1. to bear true faith and allegiance to the Constitution of India;
,2. to uphold the sovereignty and integrity of India;
,"3. to duly and faithfully and to the best of his ability, knowledge"
,and judgement perform the duties of the Office without fear
,"or favour, affection or ill-will; and"
,4. to uphold the Constitution and the laws.
,
,Salaries and Allowances
,"The salaries, allowances, privileges, leave and pension of the"
,judges of the Supreme Court are determined from time to time by
,the Parliament. They cannot be varied to their disadvantage after
,"their appointment except during a financial emergency. In 2018,"
,the salary of the chief justice was increased from ₹1 lakh to ₹2.80
,"lakh per month and that of a judge from ₹90,000 to ₹2.50 lakh per"
,month6. They are also paid sumptuary allowance and provided
,"with free accommodation and other facilities like medical, car,"
,"telephone, etc."
,The retired chief justice and judges are entitled to 50 per cent
,of their last drawn salary as monthly pension.
, TENURE AND REMOVAL
,
,Tenure of Judges
,The Constitution has not fixed the tenure of a judge of the
,"Supreme Court. However, it makes the following three provisions"
,in this regard:
,1. He holds office until he attains the age of 65 years. Any
,question regarding his age is to be determined by such
,authority and in such manner as provided by Parliament.
,2. He can resign his office by writing to the president.
,3. He can be removed from his office by the President on the
,recommendation of the Parliament.
,
,Removal of Judges
,A judge of the Supreme Court can be removed from his Office by
,an order of the president. The President can issue the removal
,order only after an address by Parliament has been presented to
,him in the same session for such removal.5 The address must be
,"supported by a special majority of each House of Parliament (ie, a"
,majority of the total membership of that House and a majority of
,not less than two-thirds of the members of that House present and
,voting). The grounds of removal are two–proved misbehaviour or
,incapacity.
,The Judges Enquiry Act (1968) regulates the procedure relating
,to the removal of a judge of the Supreme Court by the process of
,impeachment:
,1. A removal motion signed by 100 members (in the case of
,Lok Sabha) or 50 members (in the case of Rajya Sabha) is
,to be given to the Speaker/ Chairman.
,2. The Speaker/Chairman may admit the motion or refuse to
,admit it.
,"3. If it is admitted, then the Speaker/ Chairman is to constitute"
,a three-member committee to investigate into the charges.
,4. The committee should consist of (a) the chief justice or a
,"judge of the Supreme Court, (b) a chief justice of a high"
,"court, and (c) a distinguished jurist."
,   5. If the committee finds the judge to be guilty of misbehaviour
,"or suffering from an incapacity, the House can take up the"
,consideration of the motion.
,6. After the motion is passed by each House of Parliament by
,"special majority, an address is presented to the president for"
,removal of the judge.
,"7. Finally, the president passes an order removing the judge."
,It is interesting to know that no judge of the Supreme Court has
,been impeached so far. The first case of impeachment is that of
,Justice V. Ramaswami of the Supreme Court (1991–1993).
,"Though the enquiry Committee found him guilty of misbehaviour,"
,he could not be removed as the impeachment motion was
,defeated in the Lok Sabha. The Congress Party abstained from
,voting.
," ACTING, ADHOC AND RETIRED JUDGES"
,
,Acting Chief Justice
,The President can appoint a judge of the Supreme Court as an
,acting Chief Justice of India when:
,1. the office of Chief Justice of India is vacant; or
,2. the Chief Justice of India is temporarily absent; or
,3. the Chief Justice of India is unable to perform the duties of
,his office.
,
,Ad hoc Judge
,When there is a lack of quorum of the permanent judges to hold or
,"continue any session of the Supreme Court, the Chief Justice of"
,India can appoint a judge of a High Court as an ad hoc judge of
,the Supreme Court for a temporary period. He can do so only
,after consultation with the chief justice of the High Court
,concerned and with the previous consent of the president. The
,judge so appointed should be qualified for appointment as a judge
,of the Supreme Court. It is the duty of the judge so appointed to
,"attend the sittings of the Supreme Court, in priority to other duties"
,"of his office. While so attending, he enjoys all the jurisdiction,"
,powers and privileges (and discharges the duties) of a judge of
,the Supreme Court.
,
,Retired Judge
,"At any time, the chief justice of India can request a retired judge of"
,the Supreme Court or a retired judge of a high court (who is duly
,qualified for appointment as a judge of the Supreme Court) to act
,as a judge of the Supreme Court for a temporary period. He can
,do so only with the previous consent of the president and also of
,the person to be so appointed. Such a judge is entitled to such
,allowances as the president may determine. He will also enjoy all
,"the jurisdiction, powers and privileges of a judge of Supreme"
,"Court. But, he will not otherwise be deemed to be a judge of the"
,Supreme Court.
, SEAT AND PROCEDURE
,
,Seat of Supreme Court
,The Constitution declares Delhi as the seat of the Supreme Court.
,"But, it also authorises the chief justice of India to appoint other"
,place or places as seat of the Supreme Court. He can take
,decision in this regard only with the approval of the President.
,This provision is only optional and not compulsory. This means
,that no court can give any direction either to the President or to
,the Chief Justice to appoint any other place as a seat of the
,Supreme Court.
,
,Procedure of the Court
,"The Supreme Court can, with the approval of the president, make"
,rules for regulating generally the practice and procedure of the
,Court. The Constitutional cases or references made by the
,President under Article 143 are decided by a Bench consisting of
,at least five judges. All other cases are decided by single judges
,and division benches. The judgements are delivered by the open
,"court. All judgements are by majority vote but if differing, then"
,judges can give dissenting judgements or opinions.
, INDEPENDENCE OF SUPREME COURT
,
,The Supreme Court has been assigned a very significant role in
,"the Indian democratic political system. It is a federal court, the"
,"highest court of appeal, the guarantor of the fundamental rights of"
,"the citizens and guardian of the Constitution. Therefore, its"
,independence becomes very essential for the effective discharge
,of the duties assigned to it. It should be free from the
,"encroachments, pressures and interferences of the executive"
,(council of ministers) and the Legislature (Parliament). It should
,be allowed to do justice without fear or favour.
,The Constitution has made the following provisions to
,safeguard and ensure the independent and impartial functioning
,of the Supreme Court:
,
,1. Mode of Appointment
,The judges of the Supreme Court are appointed by the President
,(which means the cabinet) in consultation with the members of the
,"judiciary itself (ie, judges of the Supreme Court and the high"
,courts). This provision curtails the absolute discretion of the
,executive as well as ensures that the judicial appointments are not
,based on any political or practical considerations.
,
,2. Security of Tenure
,The judges of the Supreme Court are provided with the Security of
,Tenure. They can be removed from office by the President only in
,the manner and on the grounds mentioned in the Constitution.
,This means that they do not hold their office during the pleasure of
,"the President, though they are appointed by him. This is obvious"
,from the fact that no judge of the Supreme Court has been
,removed (or impeached) so far.
,
,3. Fixed Service Conditions
,"The salaries, allowances, privileges, leave and pension of the"
,judges of the Supreme Court are determined from time to time by
,the Parliament. They cannot be changed to their disadvantage
,"after their appointment except during a financial emergency. Thus,"
,the conditions of service of the judges of the Supreme Court
,remain same during their term of Office.
,
,4. Expenses Charged on Consolidated Fund
,"The salaries, allowances and pensions of the judges and the staff"
,as well as all the administrative expenses of the Supreme Court
,"are charged on the Consolidated Fund of India. Thus, they are"
,non-votable by the Parliament (though they can be discussed by
,it).
,
,5. Conduct of Judges cannot be Discussed
,The Constitution prohibits any discussion in Parliament or in a
,State Legislature with respect to the conduct of the judges of the
,"Supreme Court in the discharge of their duties, except when an"
,impeachment motion is under consideration of the Parliament.
,
,6. Ban on Practice after Retirement
,The retired judges of the Supreme Court are prohibited from
,pleading or acting in any Court or before any authority within the
,territory of India. This ensures that they do not favour any one in
,the hope of future favour.
,
,7. Power to Punish for its Contempt
,"The Supreme Court can punish any person for its contempt. Thus,"
,its actions and decisions cannot be criticised and opposed by any
,body. This power is vested in the Supreme Court to maintain its
,"authority, dignity and honour."
,
,8. Freedom to Appoint its Staff
,The Chief Justice of India can appoint officers and servants of the
,Supreme Court without any interference from the executive. He
,can also prescribe their conditions of service.
,
,9. Its Jurisdiction cannot be Curtailed
,The Parliament is not authorised to curtail the jurisdiction and
,powers of the Supreme Court. The Constitution has guaranteed to
,"the Supreme Court, jurisdiction of various kinds. However, the"
,Parliament can extend the same.
,10. Separation from Executive
,The Constitution directs the State to take steps to separate the
,Judiciary from the Executive in the public services. This means
,that the executive authorities should not possess the judicial
,"powers. Consequently, upon its implementation, the role of"
,executive authorities in judicial administration came to an end.7
, JURISDICTION AND POWERS OF SUPREME COURT
,
,The Constitution has conferred a very extensive jurisdiction and
,vast powers on the Supreme Court. It is not only a Federal Court
,like the American Supreme Court but also a final court of appeal
,like the British House of Lords (the Upper House of the British
,Parliament). It is also the final interpreter and guardian of the
,Constitution and guarantor of the fundamental rights of the
,"citizens. Further, it has advisory and supervisory powers."
,"Therefore, Alladi Krishnaswamy Ayyar, a member of the Drafting"
,"Committee of the Constitution, rightly remarked: “The Supreme"
,Court of India has more powers than any other Supreme Court in
,any part of the world.” The jurisdiction and powers of the Supreme
,Court can be classified into the following:
,1. Original Jurisdiction.
,2. Writ Jurisdiction.
,3. Appellate Jurisdiction.
,4. Advisory Jurisdiction.
,5. A Court of Record.
,6. Power of Judicial Review.
,7. Constitutional Interpretation
,8. Other Powers.
,
,1. Original Jurisdiction
,"As a federal court, the Supreme Court decides the disputes"
,"between different units of the Indian Federation. More elaborately,"
,any dispute:
,(a) Between the Centre and one or more states; or
,(b) Between the Centre and any state or states on one side and
,one or more other states on the other side; or
,(c) Between two or more states.
,"In the above federal disputes, the Supreme Court has exclusive"
,"original jurisdiction. Exclusive means, no other court can decide"
,"such disputes and original means, the power to hear such"
,"disputes in the first instance, not by way of appeal."
,With regard to the exclusive original jurisdiction of the Supreme
,"Court, two points should be noted. One, the dispute must involve"
,a question (whether of law or fact) on which the existence or
,"extent of a legal right depends. Thus, the questions of political"
,"nature are excluded from it. Two, any suit brought before the"
,Supreme Court by a private citizen against the Centre or a state
,cannot be entertained under this.
,"Further, this jurisdiction of the Supreme Court does not extend"
,to the following:
,"(a) A dispute arising out of any pre-Constitution treaty,"
,"agreement, covenant, engagement, sanad or other similar"
,instrument.8
,"(b) A dispute arising out of any treaty, agreement, etc., which"
,specifically provides that the said jurisdiction does not extent
,to such a dispute.9
,(c) Inter-state water disputes.10
,(d) Matters referred to the Finance Commission.
,(e) Adjustment of certain expenses and pensions between the
,Centre and the states.
,(f) Ordinary dispute of Commercial nature between the Centre
,and the states.
,(g) Recovery of damages by a state against the Centre.
,"In 1961, the first suit, under the original jurisdiction of the"
,"Supreme Court, was brought by West Bengal against the Centre."
,The State Government challenged the Constitutional validity of the
,"Coal Bearing Areas (Acquisition and Development) Act, 1957,"
,"passed by the Parliament. However, the Supreme Court"
,dismissed the suit by upholding the validity of the Act.
,
,2. Writ Jurisdiction
,The Constitution has constituted the Supreme Court as the
,guarantor and defender of the fundamental rights of the citizens.
,The Supreme Court is empowered to issue writs including habeas
,"corpus, mandamus, prohibition, quo warranto and certiorari for the"
,enforcement of the fundamental rights of an aggrieved citizen. In
,"this regard, the Supreme Court has original jurisdiction in the"
,sense that an aggrieved citizen can directly go to the Supreme
,"Court, not necessarily by way of appeal. However, the writ"
,jurisdiction of the Supreme Court is not exclusive. The high courts
,are also empowered to issue writs for the enforcement of the
,"Fundamental Rights. It means, when the Fundamental Rights of a"
,"citizen are violated, the aggrieved party has the option of moving"
,either the high court or the Supreme Court directly.
,"Therefore, the original jurisdiction of the Supreme Court with"
,regard to federal disputes is different from its original jurisdiction
,with regard to disputes relating to fundamental rights. In the first
,"case, it is exclusive and in the second case, it is concurrent with"
,"high courts jurisdiction. Moreover, the parties involved in the first"
,case are units of the federation (Centre and states) while the
,dispute in the second case is between a citizen and the
,Government (Central or state).
,There is also a difference between the writ jurisdiction of the
,Supreme Court and that of the high court. The Supreme Court can
,issue writs only for the enforcement of the Fundamental Rights
,"and not for other purposes. The high court, on the other hand, can"
,issue writs not only for the enforcement of the fundamental rights
,but also for other purposes. It means that the writ jurisdiction of
,"the high court is wider than that of the Supreme Court. But, the"
,"Parliament can confer on the Supreme Court, the power to issue"
,writs for other purposes also.
,
,3. Appellate Jurisdiction
,"As mentioned earlier, the Supreme Court has not only succeeded"
,the Federal Court of India but also replaced the British Privy
,Council as the highest court of appeal. The Supreme Court is
,primarily a court of appeal and hears appeals against the
,judgements of the lower courts. It enjoys a wide appellate
,jurisdiction which can be classified under four heads:
,(a) Appeals in constitutional matters.
,(b) Appeals in civil matters.
,(c) Appeals in criminal matters.
,(d) Appeals by special leave.
,
,(a) Constitutional Matters
,"In the constitutional cases, an appeal can be made to the"
,Supreme Court against the judgement of a high court if the high
,court certifies that the case involves a substantial question of law
,that requires the interpretation of the Constitution. Based on the
,"certificate, the party in the case can appeal to the Supreme Court"
,on the ground that the question has been wrongly decided.
,
,(b) Civil Matters
,"In civil cases, an appeal lies to the Supreme Court from any"
,judgement of a high court if the high court certifies–
,(i) that the case involves a substantial question of law of general
,importance; and
,(ii) that the question needs to be decided by the Supreme Court.
,"Originally, only those civil cases that involved a sum of ₹20,000"
,could be appealed before the Supreme Court. But this monetary
,limit was removed by the 30th Constitutional Amendment Act of
,1972
,
,(c) Criminal Matters
,The Supreme Court hears appeals against the judgement in a
,criminal proceeding of a high court if the high court–
,(i) has on appeal reversed an order of acquittal of an accused
,person and sentenced him to death; or
,(ii) has taken before itself any case from any subordinate court
,and convicted the accused person and sentenced him to
,death; or
,(iii) certifies that the case is a fit one for appeal to the Supreme
,Court.
,"In the first two cases, an appeal lies to the Supreme Court as a"
,"matter of right (ie, without any certificate of the high court). But if"
,the high court has reversed the order of conviction and has
,"ordered the acquittal of the accused, there is no right to appeal to"
,the Supreme Court.
,"In 1970, the Parliament had enlarged the Criminal Appellate"
,"Jurisdiction of the Supreme Court. Accordingly, an appeal lies to"
,the Supreme Court from the judgement of a high court if the high
,court:
,"(i) has on appeal, reversed an order of acquittal of an accused"
,person and sentenced him to imprisonment for life or for ten
,years; or
,(ii) has taken before itself any case from any subordinate court
,and convicted the accused person and sentenced him to
,    imprisonment for life or for ten years.
,"Further, the appellate jurisdiction of the Supreme Court extends"
,to all civil and criminal cases in which the Federal Court of India
,had jurisdiction to hear appeals from the high court but which are
,not covered under the civil and criminal appellate jurisdiction of
,the Supreme Court mentioned above.
,
,(d) Appeal by Special Leave
,The Supreme Court is authorised to grant in its discretion special
,leave to appeal from any judgement in any matter passed by any
,court or tribunal in the country (except military tribunal and court
,martial). This provision contains the four aspects as under:
,"(i) It is a discretionary power and hence, cannot be claimed as a"
,matter of right.
,(ii) It can be granted in any judgement whether final or
,interlocutory.
,"(iii) It may be related to any matter–constitutional, civil, criminal,"
,"income-tax, labour, revenue, advocates, etc."
,(iv) It can be granted against any court or tribunal and not
,"necessarily against a high court (of course, except a military"
,court).
,"Thus, the scope of this provision is very wide and it vests the"
,Supreme Court with a plenary jurisdiction to hear appeals. On the
,"exercise of this power, the Supreme Court itself held that ‘being"
,"an exceptional and overriding power, it has to be exercised"
,sparingly and with caution and only in special extraordinary
,situations. Beyond that it is not possible to fetter the exercise of
,this power by any set formula or rule’.
,
,4. Advisory Jurisdiction
,The Constitution (Article 143) authorises the president to seek the
,opinion of the Supreme Court in the two categories of matters:
,(a) On any question of law or fact of public importance which
,has arisen or which is likely to arise.
,"(b) On any dispute arising out of any pre-constitution treaty,"
,"agreement, covenant, engagement, sanad or other similar"
,instruments.11
,"   In the first case, the Supreme Court may tender or may refuse"
,"to tender its opinion to the president. But, in the second case, the"
,Supreme Court ‘must’ tender its opinion to the president. In both
,"the cases, the opinion expressed by the Supreme Court is only"
,"advisory and not a judicial pronouncement. Hence, it is not"
,binding on the president; he may follow or may not follow the
,"opinion. However, it facilitates the government to have an"
,authoritative legal opinion on a matter to be decided by it.
,"So far (2019), the President has made fifteen references to the"
,Supreme Court under its advisory jurisdiction (also known as
,consultative jurisdiction). These are mentioned below in the
,chronological order.
,1. Delhi Laws Act in 1951
,2. Kerala Education Bill in 1958
,3. Berubari Union in 1960
,4. Sea Customs Act in 1963
,5. Keshav Singh’s case relating to the privileges of the
,Legislature in 1964
,6. Presidential Election in 1974
,7. Special Courts Bill in 1978
,8. Jammu and Kashmir Resettlement Act in 1982
,9. Cauvery Water Disputes Tribunal in 1992
,10. Rama Janma Bhumi case in 1993
,11. Consultation process to be adopted by the chief justice of
,India in 1998
,12. Legislative competence of the Centre and States on the
,subject of natural gas and liquefied natural gas in 2001
,13. The constitutional validity of the Election Commission’s
,decision on deferring the Gujarat Assembly Elections in
,2002
,14. Punjab Termination of Agreements Act in 2004
,15. 2G spectrum case verdict and the mandatory auctioning of
,natural resources across all sectors in 2012
,
,5. A Court of Record
,"As a Court of Record, the Supreme Court has two powers:"
,"(a) The judgements, proceedings and acts of the Supreme Court"
,are recorded for perpetual memory and testimony. These
,      records are admitted to be of evidentiary value and cannot be
,questioned when produced before any court. They are
,recognised as legal precedents and legal references.
,"(b) It has power to punish for contempt of court, either with"
,simple imprisonment for a term up to six months or with fine
,"up to ₹2,000 or with both. In 1991, the Supreme Court has"
,ruled that it has power to punish for contempt not only of
,"itself but also of high courts, subordinate courts and tribunals"
,functioning in the entire country.
,Contempt of court may be civil or criminal. Civil contempt
,"means wilful disobedience to any judgement, order, writ or other"
,process of a court or wilful breach of an undertaking given to a
,court. Criminal contempt means the publication of any matter or
,doing an act which–(i) scandalises or lowers the authority of a
,court; or (ii) prejudices or interferes with the due course of a
,judicial proceeding; or (iii) interferes or obstructs the
,administration of justice in any other manner.
,"However, innocent publication and distribution of some matter,"
,"fair and accurate report of judicial proceedings, fair and"
,reasonable criticism of judicial acts and comment on the
,administrative side of the judiciary do not amount to contempt of
,court.
,
,6. Power of Judicial Review
,Judicial review is the power of the Supreme Court to examine the
,constitutionality of legislative enactments and executive orders of
,"both the Central and state governments. On examination, if they"
,"are found to be violative of the Constitution (ultra-vires), they can"
,"be declared as illegal, unconstitutional and invalid (null and void)"
,"by the Supreme Court. Consequently, they cannot be enforced by"
,the Government.
,
,7. Constitutional Interpretation
,The Supreme Court is the ultimate interpreter of the Constitution.
,It can give final version to the spirit and content of the provisions
,of the constitution and the verbiage used in the constitution.
,"   While interpreting the constitution, the Supreme Court is guided"
,"by a number of doctrines. In other words, the Supreme Court"
,applies various doctrines in interpreting the constitution. The
,important doctrines are mentioned below:
,1. Doctrine of Severability
,2. Doctrine of Waiver
,3. Doctrine of Eclipse
,4. Doctrine of Territorial Nexus
,5. Doctrine of Pith and Substance
,6. Doctrine of Colourable Legislation
,7. Doctrine of Implied Powers
,8. Doctrine of Incidental and Ancillary Powers
,9. Doctrine of Precedent
,10. Doctrine of Occupied Field
,11. Doctrine of Prospective Overruling
,12. Doctrine of Harmonious Construction
,13. Doctrine of Liberal Interpretation
,
,8. Other Powers
,"Besides the above, the Supreme Court has numerous other"
,powers:
,(a) It decides the disputes regarding the election of the president
,"and the vicepresident. In this regard, it has the original,"
,exclusive and final authority.
,(b) It enquires into the conduct and behaviour of the chairman
,and members of the Union Public Service Commission on a
,reference made by the president. If it finds them guilty of
,"misbehaviour, it can recommend to the president for their"
,removal. The advice tendered by the Supreme Court in this
,regard is binding on the President.
,"(c) It has power to review its own judgement or order. Thus, it is"
,not bound by its previous decision and can depart from it in
,"the interest of justice or community welfare. In brief, the"
,"Supreme Court is a self-correcting agency. For example, in"
,"the Kesavananda Bharati case (1973), the Supreme Court"
,departed from its previous judgement in the Golak Nath case
,(1967).
, (d) It is authorised to withdraw the cases pending before the
,high courts and dispose them by itself. It can also transfer a
,case or appeal pending before one high court to another high
,court.
,(e) Its law is binding on all courts in India. Its decree or order is
,enforceable throughout the country. All authorities (civil and
,judicial) in the country should act in aid of the Supreme
,Court.
,(f) It has power of judicial superintendence and control over all
,the courts and tribunals functioning in the entire territory of
,the country.
,The Supreme Court’s jurisdiction and powers with respect to
,matters in the Union list can be enlarged by the Parliament.
,"Further, its jurisdiction and powers with respect to other matters"
,can be enlarged by a special agreement of the Centre and the
,states.
, SUPREME COURT ADVOCATES
,Three categories of Advocates are entitled to practice law before
,the Supreme Court. They are:
,
,1. Senior Advocates
,These are Advocates who are designated as Senior Advocates by
,the Supreme Court of India or by any High Court. The Court can
,"designate any Advocate, with his consent, as Senior Advocate if"
,"in its opinion by virtue of his ability, standing at the Bar or special"
,knowledge or experience in law the said Advocate is deserving of
,such distinction. A Senior Advocate is not entitled to appear
,without an Advocate-on-Record in the Supreme Court or without a
,junior in any other court or tribunal in India. He is also not entitled
,"to accept instructions to draw pleadings or affidavits, advise on"
,evidence or do any drafting work of an analogous kind in any
,court or tribunal in India or undertake conveyancing work of any
,kind whatsoever but this prohibition shall not extend to settling any
,such matter as aforesaid in consultation with a junior.
,
,2. Advocates-on-Record
,Only these advocates are entitled to file any matter or document
,before the Supreme Court. They can also file an appearance or
,act for a party in the Supreme Court.
,
,3. Other Advocates
,These are advocates whose names are entered on the roll of any
,"State Bar Council maintained under the Advocates Act, 1961 and"
,they can appear and argue any matter on behalf of a party in the
,Supreme Court but they are not entitled to file any document or
,matter before the Court.
,
,Table 26.1 Comparing Indian and American Supreme Courts
,Indian Supreme Court               American Supreme Court
,1. Its original jurisdiction is    1. Its original jurisdiction covers
,confined to federal cases.         not only federal cases but
,also cases relating to naval
,"                                      forces, maritime activities,"
,"ambassadors, etc."
,2. Its appellate jurisdiction      2. Its appellate jurisdiction is
,"covers constitutional, civil       confined to constitutional"
,and criminal cases.                cases only.
,3. It has a very wide discretion 3. It has no such plenary
,to grant special leave to        power.
,appeal in any matter against
,the judgement of any court
,or tribunal (except military).
,4. It has advisory jurisdiction.   4. It has no advisory
,jurisdiction.
,5. Its scope of judicial review is 5. Its scope of judicial review is
,limited.                           very wide.
,6. It defends rights of the        6. It defends rights of the
,citizen according to the           citizen according to the ‘due
,‘procedure established by          process of law’.
,law’.
,7. Its jurisdiction and powers     7. Its jurisdiction and powers
,can be enlarged by                 are limited to that conferred
,Parliament.                        by the Constitution.
,8. It has power of judicial      8. It has no such power due to
,superintendence and control      double (or separated) judicial
,over state high courts due to    system.
,integrated judicial system.
,
,Table 26.2 Articles Related to Supreme Court at a Glance
,Article No.      Subject Matter
,124.          Establishment and Constitution of Supreme Court
,124A.          National Judicial Appointments Commission
,124B.          Functions of Commission
,124C.          Power of Parliament to make law
,"125.          Salaries, etc., of Judges"
, 126.   Appointment of acting Chief Justice
,127.   Appointment of ad hoc Judges
,128.   Attendance of retired Judges at sittings of the
,Supreme Court
,129.   Supreme Court to be a court of record
,130.   Seat of Supreme Court
,131.   Original jurisdiction of the Supreme Court
,131A.   Exclusive jurisdiction of the Supreme Court in
,regard to questions as to constitutional validity of
,Central Laws (Repealed)
,132.   Appellate jurisdiction of Supreme Court in
,appeals from High Courts in certain cases
,133.   Appellate jurisdiction of Supreme Court in
,appeals from High Courts in regard to civil
,matters
,134.   Appellate jurisdiction of Supreme Court in regard
,to criminal matters
,134A.   Certificate for appeal to the Supreme Court
,135.   Jurisdiction and powers of the Federal Court
,under existing law to be exercisable by the
,Supreme Court
,136.   Special leave to appeal by the Supreme Court
,137.   Review of judgments or orders by the Supreme
,Court
,138.   Enlargement of the jurisdiction of the Supreme
,Court
,139.   Conferment on the Supreme Court of powers to
,issue certain writs
,139A.   Transfer of certain cases
,140.   Ancillary powers of Supreme Court
,141.   Law declared by Supreme Court to be binding on
,all courts
, 142.        Enforcement of decrees and orders of Supreme
,"Court and orders as to discovery, etc."
,143.        Power of President to consult Supreme Court
,144.        Civil and judicial authorities to act in aid of the
,Supreme Court
,144A.        Special provisions as to disposal of questions
,relating to constitutional validity of laws
,(Repealed)
,"145.        Rules of court, etc."
,146.        Officers and servants and the expenses of the
,Supreme Court
,147.        Interpretation
,
,
,NOTES AND REFERENCES
,"1. Before 1950, the British Privy Council had the"
,jurisdiction to hear appeals from India.
,2. In Re-Presidential Reference (1998). The president
,sought the Supreme Court’s opinion (under Article 143)
,on certain doubts over the Consultation process to be
,adopted by the chief justice of India as stipulated in the
,1993 case.
,2a. Supreme Court Advocates-on-Record Association and
,another Vs. Union of India (2015).
,3. A.N. Ray was fourth in seniority. The three superseded
,"judges were J.M. Shelat, K.S. Hegde and A.N. Grover."
,All the three judges resigned from the Supreme Court.
,They were superseded due to their judgement in
,"Kesavananda Bharati case (1973), which was not"
,favourable to the Government.
,4. He was H.R. Khanna and he too resigned. His
,dissenting judgement upholding the right to life even
,during emergency in the ADM Jabalpur v Shivkant
,Shukla case (1976) was not appreciated by the
,Government.
, 5. An impeachment motion for the removal of a judge does
,not lapse on the dissolution of the Lok Sabha.
,"6. In 1950, their salaries were fixed at ₹5,000 per month"
,"and ₹4,000 per month respectively. In 1986, their"
,"salaries were raised to ₹10,000 per month and ₹9,000"
,"per month respectively. In 1998, their salaries were"
,"raised to ₹33,000 per month and ₹30,000 per month"
,"respectively. In 2009, their salaries were raised to ₹1"
,"lakh per month and ₹90,000 per month respectively."
,7. The Criminal Procedure Code (1973) has effected the
,separation of Judiciary from the Executive (Article 50
,under the Directive Principles of State Policy).
,"8. Pre-Constitution means that, which have been entered"
,into or executed before the commencement of the
,Constitution and which continues to be in operation after
,such commencement.
,"9. This means that the inter-government agreements (i.e.,"
,the agreements between states or between Centre and
,states) can exclude the original jurisdiction of the
,Supreme Court in so far as the disputes arising out of
,them are concerned.
,10. The Inter-State Water Disputes Act of 1956 has
,excluded the original jurisdiction of the Supreme Court
,"in disputes between states with respect to the use,"
,distribution or control of the water of inter-state river or
,river valley.
,"11. These include treaties, covenants, etc. between the"
,Central Government and the formerly princely states
,during 1947 to 1950.
, 27      Judicial Review
,
,
,
,
,T
,he doctrine of judicial review originated and developed in
,the USA. It was propounded for the first time in the famous
,"case of Marbury versus Madison (1803) by John Marshall,"
,the then chief justice of the American Supreme Court.
,"In India, on the other hand, the Constitution itself confers the"
,power of judicial review on the judiciary (both the Supreme Court
,"as well as High Courts). Further, the Supreme Court has declared"
,the power of judicial review as a basic feature of the Constitution
,"or an element of the basic structure of the Constitution. Hence,"
,the power of judicial review cannot be curtailed or excluded even
,by a constitutional amendment.
, MEANING OF JUDICIAL REVIEW
,
,Judicial review is the power of the judiciary to examine the
,constitutionality of legislative enactments and executive orders of
,"both the Central and State governments. On examination, if they"
,"are found to be violative of the Constitution (ultra vires), they can"
,"be declared as illegal, unconstitutional and invalid (null and void)"
,"by the judiciary. Consequently, they cannot be enforced by the"
,Government.
,Justice Syed Shah Mohamed Quadri has classified the judicial
,review into the following three categories1 :
,1. Judicial review of constitutional amendments.
,2. Judicial review of legislation of the Parliament and State
,Legislatures and subordinate legislations.
,3. Judicial review of administrative action of the Union and
,State and authorities under the state.
,The Supreme Court used the power of judicial review in various
,"cases, as for example, the Golaknath case (1967), the Bank"
,"Nationalisation case (1970), the Privy Purses Abolition case"
,"(1971), the Kesavananda Bharati case (1973), the Minerva Mills"
,"case (1980), and so on."
,"In 2015, the Supreme Court declared both the 99th"
,"Constitutional Amendment, 2014 and the National Judicial"
,"Appointments Commission (NJAC) Act, 2014 as unconstitutional"
,and null and void.
, IMPORTANCE OF JUDICIAL REVIEW
,Judicial review is needed for the following reasons:
,(a) To uphold the principle of the supremacy of the Constitution.
,(b) To maintain federal equilibrium (balance between the Centre
,and the states).
,(c) To protect the Fundamental Rights of the citizens.
,"In a number of cases, the Supreme Court has pointed out the"
,significance of the power of judicial review in our country. Some of
,"the observations made by it, in this regard, are given below:"
,“In India it is the Constitution that is supreme and that a statute
,"law to be valid, must be in conformity with the constitutional"
,requirements and it is for the judiciary to decide whether any
,enactment is constitutional or not”.2
,“Our constitution contains express provisions for judicial review
,of legislation as to its conformity with the constitution. This is
,"especially true as regards the Fundamental Rights, to which the"
,court has been assigned the role of sentinel on the qui vive”.3
,“As long as some Fundamental Rights exist and are a part of
,"the Constitution, the power of judicial review has also to be"
,exercised with a view to see that the guarantees afforded by these
,Rights are not contravened”.4
,"“The Constitution is supreme lex, the permanent law of the"
,"land, and there is no branch of government above it. Every organ"
,"of government, be it the executive or the legislature of the"
,"judiciary, derives its authority from the Constitution and it has to"
,act within the limits of its authority. No one however highly placed
,"and no authority howsoever lofty, can claim that it shall be the sole"
,judge of the extent of its power under the Constitution or whether
,its action is within the confines of such power laid down by the
,constitution. This Court is the ultimate interpreter of the
,Constitution and to this Court is assigned the delicate task of
,determining what is the power conferred on each branch of
,"government, whether it is limited, and if so, what are the limits and"
,whether any action of that branch transgresses such limits”.5
,"“It is the function of the Judges, may their duty, to pronounce"
,upon the validity of laws. If courts are totally deprived of that
,"power, the Fundamental Rights conferred on the people will"
,become a mere adornment because rights without remedies are
,as writ in water. A controlled Constitution will then become
,uncontrolled”.6
,“The judges of the Supreme Court have been entrusted with
,"the task of upholding the Constitution and to this end, have been"
,conferred the power to interpret it. It is they who have to ensure
,that the balance of power envisaged by the Constitution is
,"maintained and that the legislature and the executive do not, in"
,"the discharge of their functions, transgress constitutional"
,limitations”7 .
,"“The founding fathers very wisely, therefore, incorporated in the"
,Constitution itself the provisions of judicial review so as to
,"maintain the balance of federalism, to protect the Fundamental"
,Rights and Fundamental Freedoms guaranteed to the citizens and
,"to afford a useful weapon for availability, availment and enjoyment"
,"of equality, liberty and Fundamental Freedoms and to help to"
,create a healthy nationalism. The function of judicial review is a
,part of the constitutional interpretation itself. It adjusts the
,Constitution to meet new conditions and needs of the time”.8
, CONSTITUTIONAL PROVISIONS FOR JUDICIAL
,REVIEW
,
,Though the phrase ‘Judicial Review’ has nowhere been used in
,"the Constitution, the provisions of several Articles explicitly confer"
,the power of judicial review on the Supreme Court and the High
,Courts. These provisions are explained below:
,1. Article 13 declares that all laws that are inconsistent with or
,in derogation of the Fundamental Rights shall be null and
,void.
,2. Article 32 guarantees the right to move the Supreme Court
,for the enforcement of the Fundamental Rights and
,empowers the Supreme Court to issue directions or orders
,or writs for that purpose.
,3. Article 131 provides for the original jurisdiction of the
,Supreme Court in centre-state and inter-state disputes.
,4. Article 132 provides for the appellate jurisdiction of the
,Supreme Court in constitutional cases.
,5. Article 133 provides for the appellate jurisdiction of the
,Supreme Court in civil cases.
,6. Article 134 provides for the appellate jurisdiction of the
,Supreme Court in criminal cases.
,7. Article 134-A deals with the certificate for appeal to the
,Supreme Court from the High Courts.9
,8. Article 135 empowers the Supreme Court to exercise the
,jurisdiction and powers of the Federal Court under any
,preconstitution law.
,9. Article 136 authorises the Supreme Court to grant special
,leave to appeal from any court or tribunal (except military
,tribunal and court martial).
,10. Article 143 authorises the President to seek the opinion of
,the Supreme Court on any question of law or fact and on
,any pre-constitution legal matters.
,11. Article 226 empowers the High Courts to issue directions or
,orders or writs for the enforcement of the Fundamental
,Rights and for any other purpose.
,12. Article 227 vests in the High Courts the power of
,superintendence over all courts and tribunals within their
,respective territorial jurisdictions (except military courts or
,tribunals).
,13. Article 245 deals with the territorial extent of laws made by
,Parliament and by the Legislatures of States.
,14. Article 246 deals with the subject matter of laws made by
,"Parliament and by the Legislatures of States (i.e., Union List,"
,State List and Concurrent List).
,15. Articles 251 and 254 provide that in case of a conflict
,"between the central law and state law, the central law"
,prevails over the state law and the state law shall be void.
,16. Article 372 deals with the continuance in force of the pre-
,constitution laws.
, SCOPE OF JUDICIAL REVIEW
,
,The constitutional validity of a legislative enactment or an
,executive order can be challenged in the Supreme Court or in the
,High Courts on the following three grounds.
,"(a) it infringes the Fundamental Rights (Part III),"
,(b) it is outside the competence of the authority which has
,"framed it, and"
,(c) it is repugnant to the constitutional provisions.
,"From the above, it is clear that the scope of judicial review in"
,"India is narrower than what exists in the USA, though the"
,American Constitution does not explicitly mention the concept of
,"judicial review in any of its provisions. This is because, the"
,American Constitution provides for ‘due process of law’ against
,that of ‘procedure established by law’ which is contained in the
,Indian Constitution. The difference between the two is: “The due
,process of law gives wide scope to the Supreme Court to grant
,protection to the rights of its citizens. It can declare laws violative
,of these rights void not only on substantive grounds of being
,"unlawful, but also on procedural grounds of being unreasonable."
,"Our Supreme Court, while determining the constitutionality of a"
,"law, however examines only the substantive question i.e., whether"
,the law is within the powers of the authority concerned or not. It is
,"not expected to go into the question of its reasonableness,"
,suitability or policy implications”.10
,The exercise of wide power of judicial review by the American
,Supreme Court in the name of ‘due process of law’ clause has
,made the critics to describe it as a ‘third chamber’ of the
,"Legislature, a super-legislature, the arbiter of social policy and so"
,on. This American principle of judicial supremacy is also
,"recognised in our constitutional system, but to a limited extent."
,Nor do we fully follow the British Principle of parliamentary
,supremacy. There are many limitations on the sovereignty of
,"Parliament in our country, like the written character of the"
,"Constitution, the federalism with division of powers, the"
,"Fundamental Rights and the judicial review. In effect, what exists"
,"in India is a synthesis of both, that is, the American principle of"
,judicial supremacy and the British principle of parliamentary
,supremacy.
, JUDICIAL REVIEW OF THE NINTH SCHEDULE
,
,Article 31B saves the acts and regulations included in the Ninth
,Schedule from being challenged and invalidated on the ground of
,contravention of any of the Fundamental Rights. Article 31B along
,with the Ninth Schedule was added by the 1st Constitutional
,Amendment Act of 1951.
,"Originally (in 1951), the Ninth Schedule contained only 13 acts"
,and regulations but at present (in 2016) their number is 282.11 Of
,"these, the acts and regulations of the state legislature deal with"
,land reforms and abolition of the zamindari system and that of the
,Parliament deal with other matters.
,"However, in a significant judgement delivered in I.R. Coelho"
,"case (2007)12 , the Supreme Court ruled that there could not be"
,any blanket immunity from judicial review of laws included in the
,Ninth Schedule. The court held that judicial review is a ‘basic
,feature’ of the constitution and it could not be taken away by
,putting a law under the Ninth Schedule. It said that the laws
,"placed under the Ninth Schedule after April 24, 1973, are open to"
,challenge in court if they violated Fundamental Rights guaranteed
,"under the Articles 14, 15, 19 and 21 or the ‘basic structure’ of the"
,"Constitution. It was on April 24, 1973, that the Supreme Court first"
,propounded the doctrine of ‘basic structure’ or ‘basic features’ of
,the constitution in its landmark verdict in the Kesavananda Bharati
,case.13
,"While delivering the above judgement, the Supreme Court"
,made the following conclusions:
,1. A law that abrogates or abridges rights guaranteed by Part
,III of the Constitution may violate the basic structure
,"doctrine, or it may not. If former is the consequence of law,"
,whether by an amendment of any Article of Part III or by an
,"insertion in the Ninth Schedule, such law will have to be"
,invalidated in the exercise of judicial review power of the
,Court. The constitutional validity of the Ninth Schedule laws
,on the touchstone of basic structure doctrine can be
,"adjudged by applying the direct impact and effect test, i.e.,"
,"rights test, which means the form of an amendment is not"
,"   the relevant factor, but the consequence thereof would be"
,the determinative factor.
,2. The majority judgement in the Kesavanand Bharati Case14
,read with Indira Gandhi case15 requires the validity of each
,new constitutional Amendment to be judged on its own
,merits. The actual effect and impact of the law on the rights
,guaranteed under Part III has to be taken into account for
,determining whether or not it destroys basic structure. The
,impact test would determine the validity of the challenge.
,3. All amendments to the Constitution made on or after 24th
,"April, 1973 by which the Ninth Schedule is amended by"
,inclusion of various laws therein shall have to be tested on
,the touchstone of the basic or essential features of the
,Constitution as reflected in Article 21 read with Articles 14
,and 19 and the principles underlying them. To put it
,"differently, even though an act is put in the Ninth Schedule"
,"by a Constitutional Amendment, its provisions would be"
,open to attack on the ground that they destroy or damage
,the basic structure if the Fundamental Right or rights taken
,away or abrogated pertains or pertain to the basic structure.
,"4. Justification for conferring protection, not blanket protection,"
,on the laws included in the Ninth Schedule by Constitutional
,Amendments shall be a matter of constitutional adjudication
,by examining the nature and extent of infraction of a
,"Fundamental Right by a statute, sought to be constitutionally"
,"protected, and on the touchstone of the basic structure"
,doctrine as reflected in Article 21 read with Articles 14 and
,19 by application of the “rights test” and the “essence of the
,right” test taking the synoptic view of the articles in Part III as
,held in the Indira Gandhi Case.16 Applying the above test to
,"the Ninth Schedule laws, if the infraction affects the basic"
,"structure, then such a law or laws will not get the protection"
,of the Ninth Schedule. When the triangle of Article 21 read
,with Article 14 and Article 19 is sought to be eliminated not
,only the “essence of the right” test but also the “rights test”
,has to apply. There is also a difference between the “rights
,test” and the “essence of the right” test. Both form part of
,application of the basic structure doctrine. When in a
,     controlled constitution conferring limited power of
,"amendment, an entire chapter is made in applicable, the"
,“essence of the right” test as applied in Nagaraj case17 will
,"have no applicability. In such a situation, to judge the validity"
,"of the law, it is the “rights test” which is more appropriate."
,5. If the validity of any Ninth Schedule law has already been
,"upheld by this Court, it would not be open to challenge such"
,law again on the principles declared by this judgment.
,"However, if a law held to be violative of any rights in Part III"
,is subsequently incorporated in the Ninth Schedule after 24th
,"April, 1973, such a violation / infraction shall be open to"
,challenge on the ground that it destroys or damages the
,basic structure as indicated in Article 21 read with Articles 14
,and 19 and the principles underlying them.
,6. Action taken and transactions finalized as a result of the
,impugned Acts shall not be open to challenge.
,The number of acts and regulations included in the Ninth
,"Schedule before and after April 24, 1973 are mentioned below in"
,Table 27.1.
,
,Table 27.1 Number of Acts and Regulations Included in the Ninth
,Schedule
,Serial             Amendment Number             Number of Acts
,Number                  (Year)                  and Regulations
,Included in the
,Ninth Schedule
,"I. Included Before April 24, 1973"
,1.             First Amendment (1951)              13 (1 to 13)
,2.             Fourth Amendment (1955)             7 (14 to 20)
,3.             Seventh Amendment (1964)            44 (21 to 64)
,4.             Twenty-Ninth Amendment              2 (65 to 66)
,(1972)
,"II. Included After April 24, 1973"
,5.             Thirty-Fourth Amendment             20 (67 to 86)
,(1974)
,6.               Thirty-Ninth Amendment             38 (87 to 124)
,(1975)
,7.               Fortieth Amendment (1976)          64 (125 to 188)
,8.               Forty-Seventh Amendment            14 (189 to 202)
,(1984)
,9.               Sixty-Sixth Amendment              55 (203 to 257)
,(1990)
,10.              Seventy-Sixth Amendment            1 (257A)
,(1994)
,11.              Seventy-Eighth Amendment           27 (258 to 284)
,(1995)
,"Note: Entries 87, 92 and 130 have been omitted by the Forty-"
,Fourth Amendment (1978).
,
,
,NOTES AND REFERENCES
,"1. Justice Syed Shah Mohamed Quadri, “Judicial Review"
,"of Administrative Action”, 2001, 6 SCC (J), p. 3."
,2. Chief Justice Kania in A.K. Gopalan v. State of Madras
,(1950).
,3. Chief Justice Patanjali Shastri in State of Madras v. V.G.
,Row (1952).
,4. Justice Khanna in Kesavananda Bharati v. State of
,Kerala (1973).
,5. Justice Bhagwati in Rajasthan v. Union of India (1977).
,6. Chief Justice Chandrachud in Minerva Mills v. Union of
,India (1980).
,7. Chief Justice Ahmadi in L. Chandra Kumar v. Union of
,India (1997).
,8. Justice Ramaswami in S.S. Bola v. B.D. Sharma (1997).
,9. This provision was added by the 44th Constitutional
,Amendment Act of 1978.
,"10. Subhash C. Kashyap, Our Constitution, National Book"
,"Trust, Third Edition, 2001, p. 232."
,"11. Though the last entry is numbered 284, the actual total"
,"number is 282. This is because, the three entries (87,"
,92 and 130) have been deleted and one entry is
,numbered as 257A.
,12. I.R. Coelho v. State of Tamil Nadu (2007).
,13. Kesavananda Bharati v. State of Kerala (1973).
,14. Ibid.
,15. Indira Nehru Gandhi v. Raj Narain (1975).
,16. Ibid.
,17. M. Nagaraj v. Union of India (2006)
, 28       Judicial Activism
,
,
,
,
,T
,he concept of judicial activism originated and developed in
,the USA. This term was first coined in 1947 by Arthur
,"Schlesinger Jr., an American historian and educator.1"
,"In India, the doctrine of judicial activism was introduced in mid-"
,"1970s. Justice V.R. Krishna Iyer, Justice P.N. Bhagwati, Justice O."
,Chinnappa Reddy and Justice D.A. Desai laid the foundations of
,judicial activism in the country.
, MEANING OF JUDICIAL ACTIVISM
,
,Judicial activism denotes the proactive role played by the judiciary
,in the protection of the rights of citizens and in the promotion of
,"justice in the society. In other words, it implies the assertive role"
,played by the judiciary to force the other two organs of the
,government (legislature and executive) to discharge their
,constitutional duties.
,Judicial activism is also known as “judicial dynamism”. It is the
,"antithesis of “judicial restraint”, which means the self-control"
,exercised by the judiciary.
,Judicial activism is defined in the following way:
,1. “Judicial activism is a way of exercising judicial power that
,motivates judges to depart from normally practised strict
,adherence to judicial precedent in favour of progressive and
,new social policies. It is commonly marked by decision
,"calling for social engineering, and occasionally these"
,decisions represent intrusion in the legislative and executive
,matters”.2
,2. “Judicial activism is the practice in the judiciary of protecting
,or expanding individual rights through decisions that depart
,"from established precedent, or are independent of, or in"
,opposition to supposed constitutional or legislation intent”.3
,3. “Judicial activism can be defined as the process of law-
,making by judges. It means an active interpretation of
,"existing legislation by a judge, made with a view to enhance"
,the utility of that legislation for social betterment. Judicial
,activism is different from judicial pessimism which means
,"interpretation of existing provisions of law, without an"
,attempt to enhance its beneficial aspects”.3a
,4. “Judicial activism is a philosophy of judicial decision-making
,whereby judges allow their personal views about public
,"policy, among other factors, to guide their decisions”.3b"
,"5. “Judicial activism is a procedure to evolve new principles,"
,"concepts, maxims, formulae and relief to do justice or to"
,expand the standing of the litigant and open the door of
,     courts for needy or to entertain litigation affecting the entire
,society or a section of it”.3c
,The concept of judicial activism is closely related to the concept
,of Public Interest Litigation (PIL). It is the judicial activism of the
,Supreme Court which is the major factor for the rise of PIL. In
,"other words, PIL is an outcome of judicial activism. In fact, PIL is"
,the most popular form (or manifestation) of judicial activism.
, JUDICIAL REVIEW AND JUDICIAL ACTIVISM
,
,The concepts of judicial review and judicial activism are closely
,"related to each other. But, there is a difference between them. The"
,following points bring out this difference:
,"1. Since about the mid-20th century, a version of judicial review"
,"has acquired the nick-name of judicial activism, especially in"
,"the USA. In India, the participants in the debate mix up"
,judicial activism with judicial review. The former is that form
,"of latter in which judges participate in law-making policies,"
,"i.e., not only they uphold or invalidate laws in terms of"
,"constitutional provisions, but also exercise their policy"
,preferences in doing so.3d
,"2. The concept of judicial activism is inherent in judicial review,"
,which empowers the court to uphold the constitution and
,declare the laws and action inconsistent with the constitution
,as void. Judicial activism is necessary for ensuring proper
,discharge of duties by other organs.3e
,3. The term “judicial activism” came into currency some time in
,the twentieth century to describe the act of judicial legislation
,"i.e., judges making positive law. However, there is no"
,standard definition of the term “judicial activism”. As a whole
,it can be said that judicial activism stresses the importance
,of judicial review and a powerful judiciary in the protection
,and promotion of certain core rights.3f
,4. The expanded concept of locus standi in connection with
,"PIL, by judicial interpretation from time-to-time, has"
,expanded the jurisdictional limits of the courts exercising
,judicial review. This expanded role has been given the title of
,“judicial activism” by those who are critical of this expanded
,role of the judiciary.3g
,"5. Judicial activism, as regards constitutional cases, falls under"
,"the rubric of what is commonly called judicial review, and at"
,"the broadest level, it is any occasion where a court"
,intervenes and strikes down a piece of duly enacted
,legislation.3h
, JUSTIFICATION OF JUDICIAL ACTIVISM
,
,"According to Dr. B.L. Wadehra, the reasons for judicial activism"
,are as follows:4
,"(i) There is near collapse of the responsible government, when"
,the Legislature and Executive fail to discharge their
,respective functions. This results in erosion of the confidence
,in the Constitution and democracy amongst the citizens.
,(ii) The citizens of the country look up to the judiciary for the
,protection of their rights and freedoms. This leads to
,tremendous pressure on judiciary to step in aid for the
,suffering masses.
,"(iii) Judicial Enthusiasm, that is, the judges like to participate in"
,the social reforms that take place in the changing times. It
,encourages the Public Interest Litigation and liberalises the
,principle of ‘Locus Standi’.
,"(iv) Legislative Vacuum, that is, there may be certain areas, which"
,"have not been legislated upon. It is therefore, upon court to"
,indulge in judicial legislation and to meet the changing social
,needs.
,"(v) The Constitution of India has itself adopted certain provisions,"
,which gives judiciary enough scope to legislate or to play an
,active role.
,"Similarly, Subhash Kashyap observes that certain eventualities"
,may be conceived when the judiciary may have to overstep its
,normal jurisdiction and intervene in areas otherwise falling within
,the domain of the legislature and the executive:5
,(i) When the legislature fails to discharge its responsibilities.
,(ii) In case of a ‘hung’ legislature when the government it
,"provides is weak, insecure and busy only in the struggle for"
,"survival and, therefore, unable to take any decision which"
,"displeases any caste, community, or other group."
,(iii) Those in power may be afraid of taking honest and hard
,"decisions for fear of losing power and, for that reason, may"
,have public issues referred to courts as issues of law in order
,to mark time and delay decisions or to pass on the odium of
,strong decision-making to the courts.
,(iv) Where the legislature and the executive fail to protect the
,"basic rights of citizens, like the right to live a decent life,"
,"healthy surroundings, or to provide honest, efficient and just"
,system of laws and administration.
,(v) Where the court of law is misused by a strong authoritarian
,"parliamentary party government for ulterior motives, as was"
,sought to be done during the emergency aberration.
,"(vi) Sometimes, the courts themselves knowingly or unknowingly"
,"become victims of human, all too human, weaknesses of"
,"craze for populism, publicity, playing to the media and"
,hogging the headlines.
,"According to Dr. Vandana, the concept of judicial activism can"
,"be seen to be reflecting from the following trends, namely:5a"
,(i) Expansion of rights of hearing in the administrative process.
,(ii) Excessive delegation without limitation.
,(iii) Expansion of judicial control over discretionary powers.
,(iv) Expansion of judicial review over the administration.
,(v) Promotion of open government.
,(vi) Indiscriminate exercise of contempt power.
,(vii) Exercise of jurisdiction when non-exist.
,(viii) Over extending the standard rules of interpretation in its
,"search to achieve economic, social and educational"
,objectives.
,(ix) Passing of orders which are per se unworkable.
, ACTIVATORS OF JUDICIAL ACTIVISM
,
,"Upendra Baxi, an eminent jurist, has delineated the following"
,typology of social / human rights activists who activated judicial
,activism6 :
,1. Civil Rights Activists: These groups primarily focus on civil
,and political rights issues.
,2. People Rights Activists: These groups focus on social and
,economic rights within the contexts of state repression of
,people’s movements.
,3. Consumer Rights Groups: These formations raise issues
,of consumer rights within the framework of accountability of
,the polity and the economy.
,4. Bonded Labour Groups: These groups ask for judicial
,activism is nothing short of annihilation of wage slavery in
,India.
,5. Citizens for Environmental Action: These groups activate
,an activist judiciary to combat increasing environmental
,degradation and pollution.
,6. Citizen Groups against Large Irrigation Projects: These
,activist formations ask the Indian judiciary the impossible for
,"any judiciary in the world, namely, cease to and desist from"
,ordering against mega irrigation projects.
,7. Rights of Child Groups: These groups focus on child
,"labour, the right to literacy, juveniles in custodial institutions"
,and rights of children born to sex workers.
,8. Custodial Rights Groups: These groups include social
,"action by prisoners’ rights groups, women under state"
,‘protective’ custody and persons under preventive detention.
,9. Poverty Rights Groups: These groups litigate issues
,concerning draught and famine relief and urban
,impoverished.
,10. Indigenous People’s Rights Groups: These groups
,"agitate for issues of forest dwellers, citizens of the Fifth and"
,Sixth Schedules of the Indian Constitution and identity rights.
,11. Women’s Rights Groups: These groups agitate for issues
,"of gender equality, gender-based violence and harassment,"
,      rape and dowry murders.
,12.    Bar-based Groups: These associations agitate for issues
,concerning autonomy and accountability of the Indian
,judiciary.
,13.    Media Autonomy Groups: These groups focus on the
,autonomy and accountability of the press and instruments of
,mass media owned by the State.
,14.    Assorted Lawyer-Based Groups: This category includes
,the critically influential lawyers’ groups which agitate for
,various causes.
,15.    Assorted Individual Petitioners: This category includes
,freelance activist individuals.
, APPREHENSIONS OF JUDICIAL ACTIVISM
,
,The same jurist Upendra Baxi also presented a typology of fears
,which are generated by judicial activism. He observes: “The facts
,entail invocation of a wide range of fears. The invocation is
,designed to bring into a nervous rationality among India’s most
,conscientious justices”. He described the following types of fears7
,:
,1. Ideological fears: (Are they usurping powers of the
,"legislature, the executive or of other autonomous institutions"
,in a civil society?)
,2. Epistemic fears: (Do they have enough knowledge in
,"economic matters of a Manmohan Singh, in scientific"
,"matters of the Czars of the atomic energy establishment, the"
,"captains of the Council of Scientific and Industrial Research,"
,and so on?)
,3. Management fears: (Are they doing justice by adding this
,kind of litigation work load to a situation of staggering growth
,of arrears?)
,4. Legitimation fears: (Are not they causing depletion of their
,symbolic and instrumental authority by passing orders in
,public interest litigation which the executive may bypass or
,"ignore? Would not the people’s faith in judiciary, a"
,"democratic recourse, be thus eroded?)"
,5. Democratic fears: (Is a profusion of public interest litigation
,nurturing democracy or depleting its potential for the future?)
,6. Biographic fears: (What would be my place in national
,affairs after superannuation if I overdo this kind of litigation?)
, JUDICIAL ACTIVISM VS. JUDICIAL RESTRAINT
,
,Meaning of Judicial Restraint
,Judicial activism and judicial restraint are the two alternative
,judicial philosophies in the United States. Those who subscribe to
,judicial restraint contend that the role of judges should be
,"scrupulously limited; their job is merely to say what the law is,"
,"leaving the business of lawmaking where it properly belongs, that"
,"is, with the legislators and the executives. Under no"
,"circumstances, moreover, should judges allow their personal"
,political values and policy agendas to colour their judicial opinions.
,This view holds that the ‘original intent’ of the authors of the
,"constitution and its amendments is knowable, and must guide the"
,courts.8
,
,Assumptions of Judicial Restraint
,"In the USA, the doctrine of judicial restraint is based on the"
,following six assumptions9 :
,1. The Court is basically undemocratic because it is non-
,elective and presumably non-responsive to the popular will.
,Because of its alleged oligarchic composition the court
,should defer wherever possible to the ‘more’ democratic
,branches of government.
,2. The questionable origins of the great power of judicial
,"review, a power not specifically granted by the Constitution."
,3. The doctrine of separation of powers.
,"4. The concept of federalism, dividing powers between the"
,nation and the states requires of the Court deference toward
,the action of state governments and officials.
,5. The non-ideological but pragmatic assumption that since the
,Court is dependent on the Congress for its jurisdiction and
,"resources, and dependent on public acceptance for its"
,"effectiveness, it ought not to overstep its boundaries without"
,consideration of the risks involved.
,"  6. The aristocratic notion that, being a court of law, and"
,"inheritor and custodian of the Anglo-American legal tradition,"
,it ought not to go too far to the level of politics–law being the
,process of reason and judgment and politics being
,concerned only with power and influence.
,"From the above, it is clear that all the assumptions (except the"
,second dealing with the judicial review) hold good in the Indian
,context too.
,
,Supreme Court Observations
,"While delivering a judgement in December 2007, the Supreme"
,Court of India called for judicial restraint and asked courts not to
,"take over the functions of the legislature or the executive, saying"
,there is a broad separation of powers under the Constitution and
,each organ of the state must have respect for others and should
,"not encroach on others’ domain. In this context, the concerned"
,Bench of the court made the following observations10 :
,"1. The Bench said, “We are repeatedly coming across cases"
,where judges are unjustifiably trying to perform executive or
,legislative functions. This is clearly unconstitutional. In the
,"name of judicial activism, judges cannot cross their limits"
,and try to take over functions which belong to another organ
,of the state”.
,"2. The Bench said, “Judges must know their limits and must"
,not try to run the government. They must have modesty and
,"humility, and not behave like emperors.”"
,3. Quoting from the book ‘The Spirit of Laws’ by Montesquieu
,on the consequences of not maintaining separation of
,"powers among the three organs, the Bench said the French"
,political philosopher’s “warning is particularly apt and timely
,"for the Indian judiciary today, since very often it is rightly"
,criticised for ‘overreach’ and encroachment on the domain of
,the other two organs.”
,"4. Judicial activism must not become judicial adventurism, the"
,Bench warned the courts Adjudication must be done within
,the system of historically validated restraints and conscious
,minimisation of judges’ preferences.
,5. “The courts must not embarrass administrative authorities
,and must realise that administrative authorities have
,expertise in the field of administration while the court does
,not.”
,"6. The Bench said, “The justification often given for judicial"
,encroachment on the domain of the executive or the
,legislature is that the other two organs are not doing their
,"jobs properly. Even assuming this is so, the same"
,allegations can be made against the judiciary too because
,there are cases pending in courts for half-a-century.”
,7. If the legislature or the executive was not functioning
,"properly, it was for the people to correct the defects by"
,exercising their franchise properly in the next elections and
,voting for candidates who would fulfil their expectations or by
,"other lawful methods, e.g., peaceful demonstrations."
,8. “The remedy is not in the judiciary taking over the legislative
,"or the executive functions, because that will not only violate"
,the delicate balance of power enshrined in the Constitution
,but also (because) the judiciary has neither the expertise nor
,the resources to perform these functions.”
,9. The Bench said: “Judicial restraint is consistent with and
,complementary to the balance of power among the three
,independent branches of the state. It accomplishes this in
,"two ways: first, judicial restraint not only recognises the"
,"equality of the other two branches with the judiciary, it also"
,fosters that equality by minimising inter-branch interference
,"by the judiciary. Second, judicial restraint tends to protect the"
,independence of the judiciary. When courts encroach on the
,"legislative or administrative fields almost inevitably voters,"
,"legislators, and other elected officials will conclude that the"
,activities of judges should be closely monitored.
,
,
,NOTES AND REFERENCES
,1. His article entitled as “The Supreme Court: 1947” was
,published in the Fortune magazine.
,2. Black’s Law Dictionary.
,3. Merriam Webster’s Dictionary of Law.
,"3a. V.G. Palishikar, Judicial Activism, AIR 1998, Journal"
,"volume 8, p. 201."
,3b. Black’s Law Dictionary.
,"3c. P.B. Sawant, Judicial Independence - Myth and Reality,"
,"(Pune: Board of Extra Mural Studies), 1987, p. 70."
,"3d. V.N. Shukla and Mahendra Pal Singh, Constitution of"
,"India, Eastern Book Company, Thirteenth Edition, 2017,"
,p. A-51.
,"3e. Adish C. Aggarwal, Judicial Activism in India, Chapter"
,12 in Judicial Activism in India: A Festschrift in honour
,"of Justice V.R. Krishna Iyer, Edited by Lokendra Malik,"
,"Universal Law Publishing Co., First Edition, 2013, p."
,126
,"3f. Dr. Vishal Guleria, Judicial Activism: A Ray of Hope for"
,"the Marginalised Masses, Chapter 22 in Judicial"
,Activism in India : A Festschrift in honour of Justice V.R.
,"Krishna Iyer, Edited by Lokendra Malik, Universal Law"
,"Publishing co., First Edition, 2013, pp. 292–293."
,"3g. Justice A.S. Anand, Judicial Review-Judicial Activism-"
,"Need for Caution, Chapter 1 in Judicial Activism in"
,India: A Festschrift in honour of Justice V.R. Krishna
,"Iyer, Edited by Lokendra Malik, Universal Law"
,"Publishing Co., First Edition, 2013, p. 7."
,"3h. Rabindra Kr. Pathak, Judicial Process, First Edition,"
,"2019, Thomson Reuters, p. 259."
,"4. Dr. B.L. Wadehra, Public Interest Litigation: A"
,"Handbook, Second Edition, 2009, Universal Law"
,"Publishing Co., pp. 161–162."
,"5. Subhash C. Kashyap, “Judiciary Legislature Interface”,"
,"in Politics India, New Delhi, April 1997, p. 22."
,"5a. Dr. Vandana, Dimensions of Judicial Activism in India,"
,"2016, Raj Publications, New Delhi PP.33–34."
,"6. Upendra Baxi, “The Avatars of Indian Judicial Activism:"
,Explorations in the Geographies of [in] Justice” in S.K.
,"Verma and Kusum (Ed.), Fifty Years of the Supreme"
,"Court of India–Its Grasp and Reach, Indian Law Institute"
,"and Oxford University Press, 2000, pp. 173–175."
," 7. Upendra Baxi, “Judicial Activism: Legal Education and"
,"Research in Globalising India” in Mainstream, New"
,"Delhi, 24 February, 1996, p. 16."
,"8. Iain McLean and Alistair McMillan, Oxford Concise"
,"Dictionary of Politics, First Indian Edition, 2004, p. 284."
,"9. Joel B. Grossman and Richard S. Wells (ed),"
,"Constitutional Law and Judicial Policy Making, 1972, pp."
,56–57.
,"10. The Hindu, “Don’t cross limits, apex court asks judges”,"
,"December 11, 2007."
, 29       Public Interest Litigation
,
,
,
,
,T
,he concept of Public Interest Litigation (PIL) originated and
,"developed in the USA in the 1960s. In the USA, it was"
,designed to provide legal representation to previously
,unrepresented groups and interests. It was undertaken in
,recognition of the fact that the ordinary marketplace for legal
,services fails to provide such services to significant segments of
,the population and to significant interests. Such groups and
,"interests include the poor, environmentalists, consumers, racial"
,"and ethnic minorities, and others.1"
,"In India, the PIL is a product of the judicial activism role of the"
,Supreme Court. It was introduced in the early 1980s. Justice V.R.
,Krishna Iyer and Justice P.N. Bhagwati were the pioneers of the
,concept of PIL.
,"PIL is also known variously as Social Action Litigation (SAL),"
,Social Interest Litigation (SIL) and Class Action Litigation (CAL).
, MEANING OF PIL
,
,The introduction of PIL in India was facilitated by the relaxation of
,"the traditional rule of ‘locus standi’. According to this rule, only that"
,person whose rights are infringed alone can move the court for
,"the remedies, whereas, the PIL is an exception to this traditional"
,"rule. Under the PIL, any public-spirited citizen or a social"
,organisation can move the court for the enforcement of the rights
,of any person or group of persons who because of their poverty or
,ignorance or socially or economically disadvantaged position are
,"themselves unable to approach the court for the remedies. Thus,"
,"in a PIL, any member of the public having ‘sufficient interest’ can"
,approach the court for enforcing the rights of other persons and
,redressal of a common grievance.
,The Supreme Court has defined the PIL as “a legal action
,initiated in a court of law for the enforcement of public interest or
,general interest in which the public or a class of the community
,have pecuniary interest or some interest by which their legal rights
,or liabilities are affected.”2
,"PIL is absolutely necessary for maintaining the rule of law,"
,furthering the cause of justice and accelerating the pace of
,"realisation of the constitutional objectives. In other words, the real"
,purposes of PIL are:
,"(i) vindication of the rule of law,"
,(ii) facilitating effective access to justice to the socially and
,"economically weaker sections of the society, and"
,(iii) meaningful realisation of the fundamental rights.
, FEATURES OF PIL
,The various features of the PIL are explained below:
,1. PIL is a strategic arm of the legal aid movement and is
,"intended to bring justice within the reach of the poor masses,"
,who constitute the low visibility area of humanity.
,2. PIL is a totally different kind of litigation from the ordinary
,traditional litigation which is essentially of an adversary
,character where there is a dispute between two litigating
,"parties, one making claims seeking relief against the other"
,and that other opposing such claim or resisting such relief.
,3. PIL is brought before the Court not for the purpose of
,enforcing the right of one individual against another as
,"happens in the case of ordinary litigation, but it is intended to"
,promote and vindicate public interest.
,4. PIL demands that violations of constitutional and legal rights
,"of large numbers of people who are poor, ignorant or in a"
,socially or economically disadvantaged position should not
,go unnoticed and unredressed.
,5. PIL is essentially a co-operative effort on the part of the
,"petitioner, the State or Public Authority, and the Court to"
,"secure observance of the constitutional or legal rights,"
,benefits and privileges conferred upon the vulnerable
,sections of the community and to reach social justice to
,them.
,"6. In PIL, litigation is undertaken for the purpose of redressing"
,"public injury, enforcing public duty, protecting social,"
,"collective, diffused rights and interests or vindicating public"
,interest.
,"7. In PIL, the role held by the Court is more assertive than in"
,traditional actions; it is creative rather than passive and it
,assumes a more positive attitude in determining acts.
,8. Though in PIL court enjoys a degree of flexibility unknown to
,"the trial of traditional private law litigations, whatever the"
,procedure adopted by the court it must be procedure known
,to judicial tenets and characteristics of a judicial proceeding.
,"9. In a PIL, unlike traditional dispute resolution mechanism,"
,there is no determination on adjudication of individual rights.
, SCOPE OF PIL
,
,"In 1998, the Supreme Court formulated a set of guidelines to be"
,followed for entertaining letters or petitions received by it as PIL.
,These guidelines were modified in 1993 and 2003. According to
,"them, the letters or petitions falling under the following categories"
,alone will ordinarily be entertained as PIL:
,1. Bonded labour matters
,2. Neglected children
,3. Non-payment of minimum wages to workers and exploitation
,of casual workers and complaints of violation of Labour
,Laws (except in individual cases)
,"4. Petitions from jails complaining of harassment, for pre-"
,mature release and seeking release after having completed
,"14 years in jail, death in jail, transfer, release on personal"
,"bond, speedy trial as a fundamental right"
,"5. Petitions against police for refusing to register a case,"
,harassment by police and death in police custody
,"6. Petitions against atrocities on women, in particular"
,"harassment of bride, brideburning, rape, murder, kidnapping,"
,etc.
,7. Petitions complaining of harassment or torture of villagers by
,co-villagers or by police from persons belonging to
,Scheduled Caste and Scheduled Tribes and economically
,backward classes
,"8. Petitions pertaining to environmental pollution, disturbance"
,"of ecological balance, drugs, food adulteration, maintenance"
,"of heritage and culture, antiques, forest and wild life and"
,other matters of public importance
,9. Petitions from riot-victims
,10. Family pension
,The cases falling under the following categories will not be
,entertained as PIL:
,1. Landlord-tenant matters
,2. Service matter and those pertaining to pension and gratuity
,3. Complaints against Central/ State Government departments
,and Local Bodies except those relating to item numbers (1)
,   to (10) above
,4. Admission to medical and other educational institution
,5. Petitions for early hearing of cases pending in High Courts
,and Subordinate Courts
, PRINCIPLES OF PIL
,
,The Supreme Court evolved the following principles in regard to
,PIL3 :
,1. The Court in exercise of powers under Articles 32 and 226
,of the Constitution can entertain a petition filed by any
,interested person in the welfare of the people who are in a
,disadvantaged position and thus not in a position to knock
,the doors of the Court. The Court is constitutionally bound to
,protect the Fundamental Rights of such disadvantaged
,people and direct the State to fulfil its constitutional
,promises.
,"2. When the issues of public importance, enforcement of the"
,fundamental rights of large number of people vis-a-vis the
,"constitutional duties and functions of the State are raised,"
,"the court treat a letter or a telegram as a PIL. In such cases,"
,the court relaxes the procedural laws and also the law
,relating to pleadings.
,3. Whenever injustice is meted out to a large number of
,"people, the court will not hesitate to step in to invoke Articles"
,14 and 21 of the Constitution of India as well as the
,International Conventions on Human Rights which provide
,for a reasonable and fair trial.
,4. The common rule of locus standi is relaxed so as to enable
,the court to look into the grievances complained on behalf of
,"the poor, deprived, illiterate and the disabled who cannot"
,vindicate the legal wrong or legal injury caused to them for
,violation of any constitutional or legal right.
,5. When the Court is prima facie satisfied about violation of any
,constitutional right of a group of people belonging to the
,"disadvantaged category, it may not allow the State or the"
,Government from raising the question as to the
,maintainability of the petition.
,"6. Although procedural laws apply on PIL cases, the question"
,as to whether the principles of res judicata4 or principles
,analogous thereto would apply depend on the nature of the
,petition and also facts and circumstances of the case.
, 7. The dispute between two warring groups purely in the realm
,of private law would not be allowed to be agitated as a PIL.
,"8. However, in an appropriate case, although the petitioner"
,might have moved a Court in his private interest and for
,"redressal of the personal grievances, the Court in"
,furtherance of the public interest may treat it necessary to
,enquire into the state of affairs of the subject of litigation in
,the interest of justice.
,9. The Court in special situations may appoint Commission or
,other bodies for the purpose of investigating into the
,allegations and finding out facts. It may also direct
,management of a public institution taken over by such
,Commission.
,10. The Court will not ordinarily transgress into a policy. It shall
,also take utmost care not to transgress its jurisdiction while
,purporting to protect the rights of the people from being
,violated.
,11. The Court would ordinarily not step out of the known areas
,of judicial review. The High Court although may pass an
,"order for doing complete justice to the parties, it does not"
,have a power akin to Article 142 of the Constitution of India.
,12. Ordinarily the High Court should not entertain a writ petition
,by way of PIL questioning constitutionality or validity of a
,statute or a statutory rule.
, GUIDELINES FOR ADMITTING PIL
,
,The PIL has now come to occupy an important field in the
,administration of law. It should not be allowed to become ‘Publicity
,Interest Litigation’ or ‘Politics Interest Litigation’ or ‘Private Interest
,Litigation’ or ‘Paisa Interest Litigation’ or ‘Middle-class Interest
,Litigation’ (MIL).
,"The Supreme Court, in this context, observed: “PIL is not a pill"
,or a panacea for all wrongs. It was essentially meant to protect
,basic human rights of the weak and the disadvantaged and was a
,procedure which was innovated where a public-spirited person
,files a petition in effect on behalf of such persons who on account
,"of poverty, helplessness or economic and social disabilities could"
,"not approach the court for relief. There have been, in recent times"
,"increasingly instances of abuse of PIL. Therefore, there is a need"
,to re-emphasise the parameters within which PIL can be resorted
,to by a petitioner and entertained by the court.”5
,"Therefore, the Supreme Court laid down the following"
,guidelines for checking the misuse of the PIL6 :
,1. The court must encourage genuine and bona fide PIL and
,effectively discourage and curb the PIL field for extraneous
,considerations.
,2. Instead of every individual Judge devising his own
,"procedure for dealing with PIL, it would be appropriate for"
,each High Court to properly formulate rules for encouraging
,the genuine PIL filed and discouraging PIL filed with oblique
,motives.
,3. The Court should prima facie verify the credentials of the
,petitioner before entertaining the PIL.
,4. The Court shall be prima facie satisfied regarding the
,correctness of the contents of petition before entertaining the
,PIL.
,5. The Court should be fully satisfied that substantial public
,interest is involved before entertaining the petition.
,6. The Court should ensure that the petition which involves
,"larger public interest, gravity and urgency must be given"
,priority over other petitions.
,7. The Court before entertaining the PIL must ensure that the
,PIL is aimed at redressal of genuine public harm and public
,injury. The Court should also ensure that there is no
,"personal gain, private motive or oblique motive behind filing"
,PIL.
,8. The Court should also ensure that the petition filed by
,busybodies for extraneous and ulterior motives must be
,discouraged by imposing exemplary costs or adopting
,similar novel methods to curb frivolous petitions and the
,petitions filed for extraneous considerations.
,
,
,NOTES AND REFERENCES
,1. Balancing the Scales of Justice - Financing Public
,Interest Law in America (A Report by the Council for
,"Public Interest Law) 1976, pp. 6–7."
,"2. Janata Dal v. H.S. Chowdhary, 1992."
,3. Guruvayur Devaswom Managing Committee v. C.K.
,"Rajan, 2003."
,4. The principle that when a matter has been finally
,adjudicated upon by a court of competent jurisdiction it
,may not be reopened or challenged by the original
,parties or their successors in interest. Its justification is
,the need for finality in litigation. Oxford Dictionary of
,"Law, Eighth Edition, 2015, p. 537."
,"5. BALCO Employees Union v. Union of India, 2002."
,"6. State of Uttaranchal v. Balwant Singh Chaupal, 2010."
,                     PART-IV
,STATE GOVERNMENT
,
,30. Governor
,31. Chief Minister
,32. State Council of Ministers
,33. State Legislature
,34. High Court
,35. Tribunals
,36. Subordinate Courts
,37. Special Provisions for Some States
, 30       Governor
,
,
,
,
,T
,he Constitution of India envisages the same pattern of government
,"in the states as that for the Centre, that is, a parliamentary system."
,Part VI of the Constitution deals with the government in the states.
,Articles 153 to 167 in Part VI of the Constitution deal with the state
,"executive. The state executive consists of the governor, the chief minister,"
,"the council of ministers and the advocate general of the state. Thus, there"
,is no office of vice-governor (in the state) like that of Vice-President at the
,Centre.
,"The governor is the chief executive head of the state. But, like the"
,"president, he is a nominal executive head (titular or constitutional head)."
,"The governor also acts as an agent of the central government. Therefore,"
,the office of governor has a dual role.
,"Usually, there is a governor for each state, but the 7th Constitutional"
,Amendment Act of 1956 facilitated the appointment of the same person
,as a governor for two or more states.
, APPOINTMENT OF GOVERNOR
,The governor is neither directly elected by the people nor indirectly
,elected by a specially constituted electoral college as is the case with the
,president. He is appointed by the president by warrant under his hand and
,"seal. In a way, he is a nominee of the Central government. But, as held by"
,"the Supreme Court in 1979, the office of governor of a state is not an"
,employment under the Central government. It is an independent
,constitutional office and is not under the control of or subordinate to the
,Central government.
,The Draft Constitution provided for the direct election of the governor
,on the basis of universal adult suffrage. But the Constituent Assembly
,opted for the present system of appointment of governor by the president
,because of the following reasons1 :
,1. The direct election of the governor is incompatible with the
,parliamentary system established in the states.
,2. The mode of direct election is more likely to create conflicts between
,the governor and the chief minister.
,"3. The governor being only a constitutional (nominal) head, there is no"
,point in making elaborate arrangements for his election and
,spending huge amount of money.
,4. The election of a governor would be entirely on personal issues.
,"Hence, it is not in the national interest to involve a large number of"
,voters in such an election.
,5. An elected governor would naturally belong to a party and would not
,be a neutral person and an impartial head.
,6. The election of governor would create separatist tendencies and
,thus affect the political stability and unity of the country.
,7. The system of presidential nomination enables the Centre to
,maintain its control over the states.
,8. The direct election of the governor creates a serious problem of
,leadership at the time of a general election in the state.
,9. The chief minister would like his nominee to contest for
,"governorship. Hence, a second rate man of the ruling party is"
,elected as governor.
,"Therefore, the American model, where the Governor of a state is"
,"directly elected, was dropped and the Canadian model, where the"
,governor of a province (state) is appointed by the Governor-General
,"(Centre), was accepted in the Constituent Assembly."
,The Constitution lays down only two qualifications for the appointment
,of a person as a governor. These are:
,1. He should be a citizen of India.
,   2. He should have completed the age of 35 years.
,"Additionally, two conventions have also developed in this regard over"
,"the years. First, he should be an outsider, that is, he should not belong to"
,"the state where he is appointed, so that he is free from the local politics."
,"Second, while appointing the governor, the president is required to consult"
,"the chief minister of the state concerned, so that the smooth functioning of"
,"the constitutional machinery in the state is ensured. However, both the"
,conventions have been violated in some of the cases.
, CONDITIONS OF GOVERNOR’S OFFICE
,The Constitution lays down the following conditions for the the governor’s
,office:
,1. He should not be a member of either House of Parliament or a
,House of the state legislature. If any such person is appointed as
,"governor, he is deemed to have vacated his seat in that House on"
,the date on which he enters upon his office as the governor.
,2. He should not hold any other office of profit.
,3. He is entitled without payment of rent to the use of his official
,residence (the Raj Bhavan).
,"4. He is entitled to such emoluments, allowances and privileges as"
,may be determined by Parliament.
,5. When the same person is appointed as the governor of two or more
,"states, the emoluments and allowances payable to him are shared"
,by the states in such proportion as determined by the president.
,6. His emoluments and allowances cannot be diminished during his
,term of office.
,"In 2018, the Parliament has increased the salary of the governor from"
,₹1.10 lakh to ₹3.50 lakh per month.2
,"Like the President, the governor is also entitled to a number of"
,privileges and immunities. He enjoys personal immunity from legal liability
,"for his official acts. During his term of office, he is immune from any"
,"criminal proceedings, even in respect of his personal acts. He cannot be"
,"arrested or imprisoned. However, after giving two months’ notice, civil"
,proceedings can be instituted against him during his term of office in
,respect of his personal acts.
,"Before entering upon his office, the governor has to make and"
,"subscribe to an oath or affirmation. In his oath, the governor swears:"
,(a) to faithfully execute the office;
,"(b) to preserve, protect and defend the Constitution and the law; and"
,(c) to devote himself to the service and well-being of the people of the
,state.
,The oath of office to the governor is administered by the chief justice of
,"the concerned state high court and in his absence, the senior-most judge"
,of that court available.
,Every person discharging the functions of the governor also undertakes
,the similar oath or affirmation.
, TERM OF GOVERNOR’S OFFICE
,
,A governor holds office for a term of five years from the date on which he
,"enters upon his office. However, this term of five years is subject to the"
,"pleasure of the President. Further, he can resign at any time by"
,addressing a resignation letter to the President.
,The Supreme Court held that the pleasure of the President is not
,justifiable. The governor has no security of tenure and no fixed term of
,office. He may be removed by the President at any time.3
,The Constitution does not lay down any grounds upon which a
,"governor may be removed by the President. Hence, the National Front"
,Government headed by V.P. Singh (1989) asked all the governors to
,"resign as they were appointed by the Congress government. Eventually,"
,some of the governors were replaced and some were allowed to continue.
,"The same thing was repeated in 1991, when the Congress Government"
,headed by P.V. Narasimha Rao changed fourteen governors appointed by
,the V.P. Singh and Chandra Sekhar governments.
,The President may transfer a Governor appointed to one state to
,"another state for the rest of the term. Further, a Governor whose term has"
,expired may be reappointed in the same state or any other state.
,A governor can hold office beyond his term of five years until his
,successor assumes charge. The underlying idea is that there must be a
,governor in the state and there cannot be an interregnum.
,The President can make such provision as he thinks fit for the
,discharge of the functions of the governor in any contingency not provided
,"for in the Constitution, for example, the death of a sitting governor. Thus,"
,the chief justice of the concerned state high court may be appointed
,temporarily to discharge the functions of the governor of that state.
, POWERS AND FUNCTIONS OF GOVERNOR
,
,"A governor possesses executive, legislative, financial and judicial powers"
,"more or less analogous to the President of India. However, he has no"
,"diplomatic, military or emergency powers like the president."
,The powers and functions of the governor can be studied under the
,following heads:
,1. Executive powers.
,2. Legislative powers.
,3. Financial powers.
,4. Judicial powers.
,
,Executive Powers
,The executive powers and functions of the Governor are:
,1. All executive actions of the government of a state are formally taken
,in his name.
,2. He can make rules specifying the manner in which the Orders and
,other instruments made and executed in his name shall be
,authenticated.
,3. He can make rules for more convenient transaction of the business
,of a state government and for the allocation among the ministers of
,the said business.
,4. He appoints the chief minister and other ministers. They also hold
,office during his pleasure. There should be a Tribal Welfare minister
,"in the states of Chattisgarh, Jharkhand, Madhya Pradesh and"
,Odisha appointed by him. The state of Bihar was excluded from this
,provision by the 94th Amendment Act of 2006.
,5. He appoints the advocate general of a state and determines his
,remuneration. The advocate general holds office during the pleasure
,of the governor.
,6. He appoints the state election commissioner and determines his
,"conditions of service and tenure of office. However, the state"
,election commissioner can be removed only in like manner and on
,the like grounds as a judge of a high court.
,7. He appoints the chairman and members of the state public service
,"commission. However, they can be removed only by the president"
,and not by a governor.
,8. He can seek any information relating to the administration of the
,affairs of the state and proposals for legislation from the chief
,minister.
,  9. He can require the chief minister to submit for the consideration of
,the council of ministers any matter on which a decision has been
,taken by a minister but which has not been considered by the
,council.
,10. He can recommend the imposition of constitutional emergency in a
,state to the president. During the period of President’s rule in a
,"state, the governor enjoys extensive executive powers as an agent"
,of the President.
,11. He acts as the chancellor of universities in the state. He also
,appoints the vicechancellors of universities in the state.
,
,Legislative Powers
,"A governor is an integral part of the state legislature. In that capacity, he"
,has the following legislative powers and functions:
,1. He can summon or prorogue the state legislature and dissolve the
,state legislative assembly.
,2. He can address the state legislature at the commencement of the
,first session after each general election and the first session of each
,year.
,3. He can send messages to the house or houses of the state
,"legislature, with respect to a bill pending in the legislature or"
,otherwise.
,4. He can appoint any member of the State legislative assembly to
,preside over its proceedings when the offices of both the Speaker
,"and the Deputy Speaker fall vacant. Similarly, he can appoint any"
,member of the state legislature council to preside over its
,proceedings when the offices of both Chairman and Deputy
,Chairman fall vacant.
,5. He nominates one-sixth of the members of the state legislative
,council from amongst persons having special knowledge or practical
,"experience in literature, science, art, cooperative movement and"
,social service.
,6. He can nominate one member to the state legislature assembly from
,the Anglo-Indian Community.
,7. He decides on the question of disqualification of members of the
,state legislature in consultation with the Election Commission.
,8. When a bill is sent to the governor after it is passed by state
,"legislature, he can:"
,"(a) Give his assent to the bill, or"
,"(b) Withhold his assent to the bill, or"
,(c) Return the bill (if it is not a money bill) for reconsideration of the
,"state legislature. However, if the bill is passed again by the state"
,"         legislature with or without amendments, the governor has to give"
,"his assent to the bill, or"
,(d) Reserve the bill for the consideration of the president. In one
,"case such reservation is obligatory, that is, where the bill passed"
,by the state legislature endangers the position of the state high
,"court. In addition, the governor can also reserve the bill if it is of"
,the following nature:4
,"(i) Ultra-vires, that is, against the provisions of the Constitution."
,(ii) Opposed to the Directive Principles of State Policy.
,(iii) Against the larger interest of the country.
,(iv) Of grave national importance.
,(v) Dealing with compulsory acquisition of property under Article
,the Constitution.
,9. He can promulgate ordinances when the state legislature is not in
,session. These ordinances must be approved by the state
,legislature within six weeks from its reassembly. He can also
,withdraw an ordinance anytime. This is the most important
,legislative power of the governor.
,"10. He lays the reports of the State Finance Commission, the State"
,Public Service Commission and the Comptroller and Auditor-
,"General relating to the accounts of the state, before the state"
,legislature.
,
,Financial Powers
,The financial powers and functions of the governor are:
,1. He sees that the Annual Financial Statement (state budget) is laid
,before the state legislature.
,2. Money bills can be introduced in the state legislature only with his
,prior recommendation.
,3. No demand for a grant can be made except on his recommendation.
,4. He can make advances out of the Contingency Fund of the state to
,meet any unforeseen expenditure.
,5. He constitutes a finance commission after every five years to review
,the financial position of the panchayats and the municipalities.
,
,Judicial Powers
,The judicial powers and functions of the governor are:
,"1. He can grant pardons, reprives, respites and remissions of"
,"punishment or suspend, remit and commute the sentence of any"
,person convicted of any offence against any law relating to a matter
,to which the executive power of the state extends.5
,   2. He is consulted by the president while appointing the judges of the
,concerned state high court.
,"3. He makes appointments, postings and promotions of the district"
,judges in consultation with the state high court.
,4. He also appoints persons to the judicial service of the state (other
,than district judges) in consultation with the state high court and the
,State Public Service Commission.
,"Now, we will study in detail the three important powers of the governor"
,"(veto power, ordinance-making power and pardoning power) by"
,comparing them with that of the President.
,
,Table 30.1 Comparing Veto Powers of President and Governor
,President                                 Governor
,With Regard to Ordinary Bills             With Regard to Ordinary Bills
,"Every ordinary bill, after it is passed   Every ordinary bill, after it is passed"
,by both the Houses of the                 by the legislative assembly in case
,Parliament either singly or at a joint    of a unicameral legislature or by
,"sitting, is presented to the President    both the Houses in case of a"
,for his assent. He has three              bicameral legislature either in the
,alternatives:                             first instance or in the second
,"instance, is presented to the"
,1. He may give his assent to the
,"bill, the bill then becomes an act.    governor for his assent. He has four"
,alternatives:
,2. He may withhold his assent to
,1. He may give his assent to the
,"the bill, the bill then ends and"
,"bill, the bill then becomes an act."
,does not become an act.
,2. He may withhold his assent to
,3. He may return the bill for
,"the bill, the bill then ends and"
,reconsideration of the Houses. If
,does not become an act.
,the bill is passed by both the
,3. He may return the bill for
,Houses again with or without
,amendments and presented to                reconsideration of the House or
,Houses. If the bill is passed by
,"the President for his assent, the"
,the House or Houses again with
,president must give his assent to
,or without amendments and
,the bill. Thus the president
,presented to the governor for his
,enjoys only a ‘suspensive veto’.
,"assent, the governor must give"
,"his assent to the bill. Thus, the"
,governor enjoys only a
,‘suspensive veto’.
,4. He may reserve the bill for the
,consideration of the President.
,When a state bill is reserved by the When the governor reserves a bill
,governor for the consideration of          for the consideration of the
,"the President, the President has           President, he will not have any"
,three alternatives:                        further role in the enactment of the
,(a) He may give his assent to          bill. If the bill is returned by the
,"the bill, the bill then           President for the reconsideration of"
,becomes an act.                   the House or Houses and is passed
,"(b) He may withhold his assent         again, the bill must be presented"
,"to the bill, the bill then ends   again for the presidential assent"
,and does not become an            only. If the President gives his
,"Act.                              assent to the bill, it becomes an act."
,(c) He may return the bill for         This means that the assent of the
,reconsideration         of  the   Governor is no longer required.
,House or Houses of the
,state legislature. When a
,"bill is so returned, the"
,House or Houses have to
,reconsider it within six
,months. If the bill is passed
,by the House or Houses
,again with or without
,amendments                  and
,presented to the president
,"for his assent, the president"
,is not bound to give his
,assent to the bill. He may
,give his assent to such a
,bill or withhold his assent.
,"Every money bill after it is passed    Every money bill, after it is passed"
,"by the Parliament, is presented to     by the state legislature (unicameral"
,"the President for his assent. He has   or bicameral), is presented to the"
,two alternatives:                      governor for his assent. He has
,1. He may give his assent to the       three alternatives:
,"bill, the bill then becomes an act. 1. He may give his assent to the"
,"2. He may withhold his assent to          bill, the bill then becomes an act."
,"the bill, the bill then ends and    2. He may withhold his assent to"
,"does not become an act.                the bill, the bill then ends and"
,does not become an act.
,3. He may reserve the bill for the
,consideration of the president.
,"Thus, the President cannot return a Thus, the governor cannot return a"
,money bill for the reconsideration of money bill for the reconsideration of
,"the Parliament. Normally, the         the state legislature. Normally, the"
,president gives his assent to a          governor gives his assent to a
,money bill as it is introduced in the money bill as it is introduced in the
,Parliament with his previous             state legislature with his previous
,permission.                              permission.
,When a Money Bill is reserved by When the governor reserves a
,the Governor for the consideration money bill for the consideration of
,"of the President, the President has the President, he will not have any"
,two alternatives:                        further role in the enactment of the
,(a) He may give his assent to bill. If the President gives his assent
,"the bill, the bill then to the bill, it becomes an Act. This"
,becomes an Act.                 means that the assent of the
,(b) He may withhold his assent governor is no longer required.
,"to the bill, the bill then ends"
,and does not become an
,act.
,"Thus, the President cannot return a"
,money bill for the reconsideration of
,the state legislature (as in the case
,of the Parliament).
,
,Table 30.2 Comparing Ordinance-Making Power of President and
,Governor
,President                               Governor
,1. He     can   promulgate     an      1. He     can     promulgate      an
,ordinance only when both the           ordinance only when the
,Houses of Parliament are not in        legislative assembly (in case of
,session or when either of the          a unicameral legislature) is not
,two Houses of Parliament is            in session or (in case of a bi-
,not in session. The second             cameral legislature) when both
,provision implies that an              the Houses of the state
,ordinance    can   also     be         legislature are not in session or
,promulgated by the president           when either of the two Houses
,when only one House is in              of the state legislature is not in
,session because a law can be           session. The last provision
,passed by both the Houses              implies that an ordinance can
,and not by one House alone.            be     promulgated      by    the
,governor when only one House
,(in case of a bicameral
,legislature) is in session
,because a law can be passed
,                                          by both the Houses and not by
,one House alone.
,2. He      can   promulgate    an      2. He      can   promulgate    an
,ordinance only when he is              ordinance only when he is
,satisfied that circumstances           satisfied that circumstances
,exist which render it necessary        exist which render it necessary
,for him to take immediate              for him to take immediate
,action.                                action.
,3. His ordinance-making power is       3. His ordinance-making power is
,co-extensive with the legislative      co-extensive with the legislative
,power of the Parliament. This          power of the state legislature.
,means that he can issue                This means that he can issue
,ordinances only on those               ordinances only on those
,subjects    on     which      the      subjects on which the state
,Parliament can make laws.              legislature can make laws.
,4. An ordinance issued by him          4. An ordinance issued by him
,has the same force and effect          has the same force and effect
,as an act of the Parliament.           as an act of the state
,legislature.
,5. An ordinance issued by him is       5. An ordinance issued by him is
,subject to the same limitations        subject to the same limitations
,as an act of Parliament. This          as an act of the state
,means that an ordinance                legislature. This means that an
,issued by him will be invalid to       ordinance issued by him will be
,the extent it makes any                invalid to the extent it makes
,provision which the Parliament         any provision which the state
,cannot make.                           legislature cannot make.
,6. He can withdraw an ordinance        6. He can withdraw an ordinance
,at any time.                           at any time.
,7. His ordinance-making power is       7. His ordinance-making power is
,not a discretionary power. This        not a discretionary power. This
,means that he can promulgate           means that he can promulgate
,or withdraw an ordinance only          or withdraw an ordinance only
,on the advice of the council of        on the advice of the council
,ministers of ministers headed          headed by the chief minister.
,by the prime minister.
,8. An ordinance issued by him          8. An ordinance issued by him
,should be laid before both the         should be laid before the
,Houses of Parliament when it           legislative assembly or both the
,reassembles.                           Houses of the state legislature
,                                          (in case of        a bicameral
,legislature)       when      it
,reassembles.
,9. An ordinance issued by him         9. An ordinance issued by him
,ceases to operate on the expiry       ceases to operate on the expiry
,of six weeks from the                 of six weeks from the
,reassembly of Parliament. It          reassembly      of   the     state
,may cease to operate even             legislature. It may cease to
,earlier than the prescribed six       operate even earlier than the
,"weeks, if both the Houses of          prescribed six weeks, if a"
,Parliament passes resolutions         resolution disapproving it is
,disapproving it.                      passed by the legislative
,assembly and is agreed to by
,the legislative council (in case
,of a bicameral legislature).
,10. He needs no instruction for 10. He cannot make an ordinance
,making an ordinance.            without the instructions from
,the President in three cases:
,(a) If a bill containing the same
,provisions      would      have
,required      the      previous
,sanction of the President
,for its introduction into the
,state legislature.
,(b) If he would have deemed it
,necessary to reserve a bill
,containing       the      same
,provisions         for      the
,consideration        of     the
,President.
,(c) If an act of the state
,legislature containing the
,same provisions would
,have been invalid without
,receiving the President’s
,assent.
,
,Table 30.3 Comparing Pardoning Powers of President and Governor
,President                              Governor
,"1. He can pardon, reprive, respite,   1. He can pardon, reprieve,"
,"remit, suspend or commute the         respite, remit, suspend or"
,   punishment or sentence of any         commute the punishment or
,person convicted of any               sentence of any person
,offence against a Central law.        convicted of any offence
,against a state law.
,"2. He can pardon, reprieve,            2. He cannot pardon a death"
,"respite, remit, suspend or             sentence. Even if a state law"
,"commute a death sentence. He           prescribes for death sentence,"
,is the only authority to pardon a      the power to grant pardon lies
,death sentence.                        with the President and not the
,"governor. But, the governor can"
,"suspend, remit or commute a"
,death sentence.
,"3. He can grant pardon, reprieve, 3. He does not possess any such"
,"respite, suspension, remission    power."
,or commutation in respect to
,punishment or sentence by a
,court-martial (military court).
, CONSTITUTIONAL POSITION OF GOVERNOR
,The Constitution of India provides for a parliamentary form of government
,"in the states as in the Centre. Consequently, the governor has been made"
,"only a nominal executive, the real executive constitutes the council of"
,"ministers headed by the chief minister. In other words, the governor has to"
,exercise his powers and functions with the aid and advise of the council of
,"ministers headed by the chief minister, except in matters in which he is"
,"required to act in his discretion (i.e., without the advice of ministers)."
,"In estimating the constitutional position of the governor, particular"
,"reference has to be made to the provisions of Articles 154, 163 and 164."
,These are:
,(a) The executive power of the state shall be vested in the governor and
,shall be exercised by him either directly or through officers
,subordinate to him in accordance with this Constitution (Article 154).
,(b) There shall be a council of ministers with the chief minister as the
,"head to aid and advise the governor in the exercise of his functions,"
,except in so far as he is required to exercise his functions in his
,discretion (Article 163).
,(c) The council of ministers shall be collectively responsible to the
,legislative assembly of the state (Article 164). This provision is the
,foundation of the parliamentary system of government in the state.
,"From the above, it is clear that constitutional position of the governor"
,differs from that of the president in the following two respects:6
,1. While the Constitution envisages the possibility of the governor
,"acting at times in his discretion, no such possibility has been"
,envisaged for the President.
,"2. After the 42nd Constitutional Amendment (1976), ministerial advice"
,"has been made binding on the President, but no such provision has"
,been made with respect to the governor.
,The Constitution makes it clear that if any question arises whether a
,"matter falls within the governor’s discretion or not, the decision of the"
,governor is final and the validity of anything done by him cannot be called
,in question on the ground that he ought or ought not to have acted in his
,discretion. The governor has constitutional discretion in the following
,cases:
,1. Reservation of a bill for the consideration of the President.
,2. Recommendation for the imposition of the President’s Rule in the
,state.
,3. While exercising his functions as the administrator of an adjoining
,union territory (in case of additional charge).
,"   4. Determining the amount payable by the Government of Assam,"
,"Meghalaya, Tripura and Mizoram to an autonomous Tribal District"
,Council as royalty accruing from licenses for mineral exploration7 .
,5. Seeking information from the chief minister with regard to the
,administrative and legislative matters of the state.
,"In addition to the above constitutional discretion (i.e., the express"
,"discretion mentioned in the Constitution), the governor, like the president,"
,"also has situational discretion (i.e., the hidden discretion derived from the"
,exigencies of a prevailing political situation) in the following cases:
,1. Appointment of chief minister when no party has a clear-cut majority
,in the state legislative assembly or when the chief minister in office
,dies suddenly and there is no obvious successor.
,2. Dismissal of the council of ministers when it cannot prove the
,confidence of the state legislative assembly.
,3. Dissolution of the state legislative assembly if the council of
,ministers has lost its majority.
,
,Table 30.4     Articles Related to Governor at a Glance
,Article No.       Subject Matter
,153.          Governors of states
,154.          Executive power of state
,155.          Appointment of Governor
,156.          Term of office of Governor
,157.          Qualifications for appointment as Governor
,158.          Conditions of Governor’s office
,159.          Oath or affirmation by the Governor
,160.          Discharge of the functions of the Governor in certain
,contingencies
,161.          Power of the Governor to grant pardons and others
,162.          Extent of executive power of state
,163.          Council of ministers to aid and advise the Governor
,"164.          Other provisions as to ministers like appointments,"
,"term, salaries, and others"
,165.          Advocate-General for the state
,166.          Conduct of business of the government of a state
,167.          Duties of the Chief Minister regarding furnishing of
,"information to the Governor, and so on"
,"        174.         Sessions of the state legislature, prorogation and"
,dissolution
,175.         Right of the Governor to address and send
,messages to the house or houses of state
,legislature
,176.         Special address by the Governor
,200.         Assent to bills (i.e. assent of the Governor to the
,bills passed by the state legislature)
,201.         Bills reserved by the Governor for consideration of
,the President
,213.         Power of Governor to promulgate ordinances
,217.         Governor being consulted by the President in the
,matter of the appointments of the judges of the High
,Courts
,233.         Appointment of district judges by the Governor
,234.         Appointments of persons (other than district judges)
,to the judicial service of the state by the Governor.
,
,"Moreover, the governor has certain special responsibilities to discharge"
,"according to the directions issued by the President. In this regard, the"
,"governor, though has to consult the council of ministers led by the chief"
,"minister, acts finally on his discretion. They are as follows:"
,1. Maharashtra–Establishment of separate development boards for
,Vidarbha and Marathwada.
,2. Gujarat–Establishment of separate development boards for
,Saurashtra and Kutch.
,3. Nagaland–With respect to law and order in the state for so long as
,the internal disturbance in the Naga Hills-TUensang Area continues.
,4. Assam–With respect to the administration of tribal areas.
,5. Manipur–Regarding the administration of the hill areas in the state.
,6. Sikkim–For peace and for ensuring social and economic
,advancement of the different sections of the population.
,7. Arunachal Pradesh–With respect to law and order in the state.
,8. Karnataka - Establishment of a separate development board for
,Hyderabad-Karnataka region8 .
,"Thus, the Constitution has assigned a dual role to the office of a"
,governor in the Indian federal system. He is the constitutional head of the
,"state as well as the representative of the Centre (i.e., President)."
,NOTES AND REFERENCES
,"1. Constituent Assembly Debates, Volume IV, pp. 588–607."
,"2. Vide the Finance Act, 2018, with effect from 1st January, 2016."
,"This Act amended the Governor’s (Emoluments, Allowances"
,"and Privileges) Act, 1982."
,"3. Surya Narain v Union of India, (1982)."
,"4. Soli Sorabji, The Governor: Sage or Saboteur, Roli Books (New"
,"Delhi), 1985, p. 25."
,"5. For the meanings of these legal terms, see ‘Pardoning Power of"
,the President’ under Chapter 17.
,"6. M.P. Jain, Indian Constitutional Law, Wadhwa, Fourth Ed, p."
,186
,7. Paragraph 9(2) of the Sixth Schedule says: ‘If any dispute
,arises as to the share of such royalties to be made over to a
,"district council, it shall be referred to the governor for"
,determination and the amount determined by the governor in
,his discretion shall be deemed to be the amount payable to the
,district council and the decision of the governor shall be final’.
,The Sixth Schedule contains the provisions as to the
,"administration of tribal areas in the States of Assam,"
,"Meghalaya, Tripura and Mizoram."
,8. This provision was added by the 98th Constitutional
,Amendment Act of 2012.
, 31      Chief Minister
,
,
,
,
,I
,n the scheme of parliamentary system of government provided
,"by the Constitution, the governor is the nominal executive"
,authority (de jure executive) and the Chief Minister is the real
,"executive authority (de facto executive). In other words, the governor"
,is the head of the state while the Chief Minister is the head of the
,government. Thus the position of the Chief Minister at the state level
,is analogous to the position of prime minister at the Centre.
, APPOINTMENT OF CHIEF MINISTER
,
,The Constitution does not contain any specific procedure for the
,selection and appointment of the Chief Minister. Article 164 only says
,"that the Chief Minister shall be appointed by the governor. However,"
,this does not imply that the governor is free to appoint any one as
,the Chief Minister. In accordance with the conventions of the
,"parliamentary system of government, the governor has to appoint"
,the leader of the majority party in the state legislative assembly as
,"the Chief Minister. But, when no party has a clear majority in the"
,"assembly, then the governor may exercise his personal discretion in"
,the selection and appointment of the Chief Minister. In such a
,"situation, the governor usually appoints the leader of the largest"
,party or coalition in the assembly as the Chief Minister and ask him
,to seek a vote of confidence in the House within a month.1
,The governor may have to exercise his individual judgement in
,the selection and appointed of the Chief Minister when the Chief
,Minister in office dies suddenly and there is no obvious successor.
,"However, on the death of a Chief Minister, the ruling party usually"
,elects a new leader and the governor has no choice but to appoint
,him as Chief Minister.
,The Constitution does not require that a person must prove his
,majority in the legislative assembly before he is appointed as the
,Chief Minister. The governor may first appoint him as the Chief
,Minister and then ask him to prove his majority in the legislative
,assembly within a reasonable period. This is what has been done in
,a number of cases2 .
,A person who is not a member of the state legislature can be
,"appointed as Chief Minister for six months, within which time, he"
,"should be elected to the state legislature, failing which he ceases to"
,be the Chief Minister.3
,"According to the Constitution, the Chief Minister may be a"
,member of any of the two Houses of a state legislature. Usually
,Chief Ministers have been selected from the Lower House
,"(legislative assembly), but, on a number of occasions, a member of"
,the Upper House (legislative council) has also been appointed as
,Chief Minister.4
," OATH, TERM AND SALARY"
,
,"Before the Chief Minister enters his office, the governor administers"
,"to him the oaths of office and secrecy.5 In his oath of office, the Chief"
,Minister swears:
,"1. to bear true faith and allegiance to the Constitution of India,"
,"2. to uphold the sovereignty and integrity of India,"
,3. to faithfully and conscientiously discharge the duties of his
,"office, and"
,4. to do right to all manner of people in accordance with the
,"Constitution and the law, without fear or favour, affection or ill-"
,will.
,"In his oath of secrecy, the Chief Minister swears that he will not"
,directly or indirectly communicate or reveal to any person(s) any
,matter that is brought under his consideration or becomes known to
,him as a state minister except as may be required for the due
,discharge of his duties as such minister.
,The term of the Chief Minister is not fixed and he holds office
,"during the pleasure of the governor. However, this does not mean"
,that the governor can dismiss him at any time. He cannot be
,dismissed by the governor as long as he enjoys the majority support
,"in the legislative assembly.6 But, if he loses the confidence of the"
,"assembly, he must resign or the governor can dismiss him."
,The salary and allowances of the Chief Minister are determined
,"by the state legislature. In addition to the salary and allowances,"
,"which are payable to a member of the state legislature, he gets a"
,"sumptuary allowance, free accommodation, travelling allowance,"
,"medical facilities, etc."
, POWERS AND FUNCTIONS OF CHIEF MINISTER
,
,The powers and functions of the Chief Minister can be studied under
,the following heads:
,
,In Relation to Council of Ministers
,The Chief Minister enjoys the following powers as head of the state
,council of ministers:
,(a) The governor appoints only those persons as ministers who are
,recommended by the Chief Minister.
,(b) He allocates and reshuffles the portfolios among ministers.
,(c) He can ask a minister to resign or advise the governor to
,dismiss him in case of difference of opinion.
,(d) He presides over the meetings of the council of ministers and
,influences its decisions.
,"(e) He guides, directs, controls and coordinates the activities of all"
,the ministers.
,(f) He can bring about the collapse of the council of ministers by
,resigning from office. Since the Chief Minister is the head of the
,"council of ministers, his resignation or death automatically"
,dissolves the council of ministers. The resignation or death of
,"any other minister, on the other hand, merely creates a"
,"vacancy, which the Chief Minister may or may not like to fill."
,
,In Relation to the Governor
,The Chief Minister enjoys the following powers in relation to the
,governor:
,(a) He is the principal channel of communication between the
,governor and the council of ministers.7 It is the duty of the Chief
,Minister:
,(i) to communicate to the Governor of the state all decisions of t
,council of ministers relating to the administration of the affairs
,the state and proposals for legislation;
,(ii) to furnish such information relating to the administration of t
,affairs of the state and proposals for legislation as the govern
,may call for; and
,"(iii) if the governor so requires, to submit for the consideration of t"
,       council of ministers any matter on which a decision has be
,taken by a minister but which has not been considered by t
,council.
,(b) He advises the governor with regard to the appointment of
,"important officials like advocate general, chairman and"
,"members of the state public service commission, state election"
,"commissioner, and so on."
,
,In Relation to State Legislature
,The Chief Minister enjoys the following powers as the leader of the
,house:
,(a) He advises the governor with regard to the summoning and
,proroguing of the sessions of the state legislature.
,(b) He can recommend the dissolution of the legislative assembly
,to the governor at any time.
,(c) He announces the government policies on the floor of the
,house.
,
,Other Powers and Functions
,"In addition, the Chief Minister also performs the following functions:"
,(a) He is the chairman of the State Planning Board.
,(b) He acts as a vice-chairman of the concerned zonal council by
,"rotation, holding office for a period of one year at a time.8"
,(c) He is a member of the Inter-State Council and the Governing
,"Council of NITI Aayog, both headed by the prime minister."
,(d) He is the chief spokesman of the state government.
,(e) He is the crisis manager-in-chief at the political level during
,emergencies.
,"(f) As a leader of the state, he meets various sections of the people"
,"and receives memoranda from them regarding their problems,"
,and so on.
,(g) He is the political head of the services.
,"Thus, he plays a very significant and highly crucial role in the"
,"state administration. However, the discretionary powers enjoyed by"
,"the governor reduces to some extent the power, authority, influence,"
,prestige and role of the Chief Minister in the state administration.
, RELATIONSHIP WITH THE GOVERNOR
,
,The following provisions of the Constitution deal with the relationship
,between the governor and the Chief Minister:
,1. Article 163: There shall be a council of ministers with the Chief
,Minister as the head to aid and advise the governor on the
,"exercise of his functions, except in so far as he is required to"
,exercise his functions or any of them in his discretion.
,2. Article 164:
,(a) The Chief Minister shall be appointed by the governor and
,other ministers shall be appointed by the governor on the
,advise of the Chief Minister;
,(b) The ministers shall hold office during the pleasure of the
,governor; and
,(c) The council of ministers shall be collectively responsible to
,the legislative assembly of the state.
,3. Article 167: It shall be the duty of the Chief Minister:
,(a) to communicate to the governor of the state all decisions of
,the council of ministers relating to the administration of the
,affairs of the state and proposals for legislation;
,(b) to furnish such information relating to the administration of
,the affairs of the state and proposals for legislation as the
,governor may call for; and
,"(c) if the governor so requires, to submit for the consideration"
,of the council of ministers any matter on which a decision
,has been taken by a minister but which has not been
,considered by the council.
,
,Table 31.1 Articles Related to Chief Minister at a Glance
,Article No.     Subject Matter
,163.         Council of Ministers to aid and advise Governor
,164.         Other provisions as to Ministers
,166.         Conduct of business of the Government of a
,State
,167.         Duties of Chief Minister as respects the
,"furnishing of information to Governor, etc."
,   177.        Rights of Ministers as respects the Houses
,
,
,NOTES AND REFERENCES
,"1. For example, the governors of Tamil Nadu (1951),"
,"Rajasthan (1967), and Haryana (1982) invited the leader"
,of the largest party to form the ministry. The governors of
,"Punjab (1967), West Bengal (1970), and Maharashtra"
,"(1978), on the other hand, invited the leader of the"
,coalition to form the ministry.
,"2. For example, the governor of J & K (Jagmohan) appointed"
,G.M. Shah as the Chief Minister and asked him to prove
,his majority on the floor of the House within a month. He
,"proved his majority. Similarly, the Governor of Andhra"
,Pradesh (Ram Lal) appointed Bhasker Rao as the Chief
,Minister and gave him one month to prove his majority on
,"the floor of the House. However, he could not prove his"
,majority.
,"3. For example, Bansilal and S.B. Chavan were appointed as"
,"Chief Ministers of Haryana and Maharashtra respectively,"
,even though they were not members of the state
,"legislature. Subsequently, they were elected to the state"
,legislature.
,"4. For example, C. Rajagopalachari in Madras (now Tamil"
,"Nadu) in 1952, Morarji Desai in Bombay (now"
,"Maharashtra) in 1952, C.B. Gupta in UP in 1960 and B.P."
,Mandal in Bihar in 1968 were appointed as Chief
,"Ministers, while they were members of the state legislative"
,council.
,5. The form of oath of office and secrecy for the Chief
,Minister is similar to that for any state minister. See
,Chapter 32.
,6. This was ruled by the Supreme Court in S.R. Bommai v.
,"Union of India, (1994). However, there have been many"
,"violations of this rule, whereby the governors have"
,dismissed the Chief Ministers without giving them an
,opportunity to prove their majority in the legislative
,assembly.
,7. Article 167 specifically deals with this function of the Chief
,Minister.
,8. Union home minister is the chairman of all the zonal
,councils.
, 32      State Council of Ministers
,
,
,
,
,A
,s the Constitution of India provides for a parliamentary
,"system of government in the states on the Union pattern,"
,the council of ministers headed by the chief minister is the
,real executive authority in the politico-administrative system of a
,state. The council of ministers in the states is constituted and
,function in the same way as the council of ministers at the Centre.
,The principles of parliamentary system of government are not
,detailed in the Constitution; but two Articles (163 and 164) deal
,"with them in a broad, sketchy and general manner. Article 163"
,deals with the status of the council of ministers while Article 164
,"deals with the appointment, tenure, responsibility, qualifications,"
,oath and salaries and allowances of the ministers.
, CONSTITUTIONAL PROVISIONS
,
,Article 163–Council of Ministers to aid and advise
,Governor
,1. There shall be a Council of Ministers with the Chief Minister
,as the head to aid and advise the Governor in the exercise
,"of his functions, except in so far as he is required to exercise"
,his functions in his discretion.
,2. If any question arises whether a matter falls within the
,"Governor’s discretion or not, decision of the Governor shall"
,"be final, and the validity of anything done by the Governor"
,shall not be called in question on the ground that he ought or
,ought not to have acted in his discretion.
,3. The advice tendered by Ministers to the Governor shall not
,be inquired into in any court.
,
,Article 164–Other Provisions as to Ministers
,1. The Chief Minister shall be appointed by the Governor and
,the other Ministers shall be appointed by the Governor on
,"the advice of the Chief Minister. However, in the states of"
,"Chhattisgarh, Jharkhand, Madhya Pradesh and Odisha,"
,there shall be a Minister in charge of tribal welfare who may
,in addition be in charge of the welfare of the scheduled
,castes and backward classes or any other work. The state of
,Bihar was excluded from this provision by the 94th
,Amendment Act of 2006.
,"2. The total number of ministers, including the chief minister, in"
,the council of ministers in a state shall not exceed 15 per
,cent of the total strength of the legislative assembly of that
,"state. But, the number of ministers, including the chief"
,"minister, in a state shall not be less than 12. This provision"
,was added by the 91st Amendment Act of 2003.
,3. A member of either House of state legislature belonging to
,any political party who is disqualified on the ground of
,defection shall also be disqualified to be appointed as a
,       minister. This provision was also added by the 91st
,Amendment Act of 2003.
,4.   The ministers shall hold office during the pleasure of the
,Governor.
,5.   The council of ministers shall be collectively responsible to
,the state Legislative Assembly.
,6.   The Governor shall administer the oaths of office and
,secrecy to a minister.
,7.   A minister who is not a member of the state legislature for
,any period of six consecutive months shall cease to be a
,minister.
,8.   The salaries and allowances of ministers shall be
,determined by the state legislature.
,
,Article 166–Conduct of Business of the Government of
,a State
,1. All executive action of the Government of a State shall be
,expressed to be taken in the name of the Governor.
,2. Orders and other instruments made and executed in the
,name of the Governor shall be authenticated in such manner
,as may be specified in rules to be made by the Governor.
,"Further, the validity of an order or instrument which is so"
,authenticated shall not be called in question on the ground
,that it is not an order or instrument made or executed by the
,Governor.
,3. The Governor shall make rules for the more convenient
,"transaction of the business of the government of the state,"
,and for the allocation among ministers of the said business
,in so far as it is not business with respect to which the
,Governor is required to act in his discretion.
,
,Article 167–Duties of Chief Minister
,It shall be the duty of the Chief Minister of each state
,1. To communicate to the governor of the state all decisions of
,the council of ministers relating to the administration of the
,affairs of the state and proposals for legislation
,  2. To furnish such information relating to the administration of
,the affairs of the state and proposals for legislation as the
,governor may call for
,"3. If the governor so requires, to submit for the consideration of"
,the council of ministers any matter on which a decision has
,been taken by a minister but which has not been considered
,by the council
,
,Article 177–Rights of Ministers as Respects the
,Houses
,Every minister shall have the right to speak and take part in the
,proceedings of the Assembly (and also the Council where it
,exists) and any Committee of the State Legislature of which he
,may be named a member. But he shall not be entitled to vote.
, NATURE OF ADVICE BY MINISTERS
,
,Article 163 provides for a council of ministers with the chief
,minister at the head to aid and advise the governor in the exercise
,of his functions except the discretionary ones. If any question
,arises whether a matter falls within the governor’s discretion or
,"not, the decision of the governor is final and the validity of"
,anything done by him cannot be called in question on the ground
,"that he ought or ought not to have acted in his discretion. Further,"
,the nature of advice tendered by ministers to the governor cannot
,be enquired by any court. This provision emphasises the intimate
,and the confidential relationship between the governor and the
,ministers.
,"In 1971, the Supreme Court ruled that a council of ministers"
,"must always exist to advise the governor, even after the"
,dissolution of the state legislative assembly or resignation of a
,"council of ministers. Hence, the existing ministry may continue in"
,"the office until its successor assumes charge. Again in 1974, the"
,Court clarified that except in spheres where the governor is to act
,"in his discretion, the governor has to act on the aid and advice of"
,the council of ministers in the exercise of his powers and
,functions. He is not required to act personally without the aid and
,advice of the council of ministers or against the aid and advice of
,the council of ministers. Wherever the Constitution requires the
,"satisfaction of the governor, the satisfaction is not the personal"
,satisfaction of the governor but it is the satisfaction of the council
,of ministers.
, APPOINTMENT OF MINISTERS
,
,The chief minister is appointed by the governor. The other
,ministers are appointed by the governor on the advice of the chief
,minister. This means that the governor can appoint only those
,persons as ministers who are recommended by the chief minister.
,"But, there should be a tribal welfare minister in Chhattisgarh,"
,"Jharkhand, Madhya Pradesh and Odisha1. Originally, this"
,"provision was applicable to Bihar, Madhya Pradesh and Odisha."
,The 94th Amendment Act of 2006 freed Bihar from the obligation
,of having a tribal welfare minister as there are no Scheduled
,Areas in Bihar now and the fraction of population of the Scheduled
,Tribes is very small. The same Amendment also extended the
,above provision to the newly formed states of Chhattisgarh and
,Jharkhand.
,"Usually, the members of the state legislature, either the"
,"legislative assembly or the legislative council, are appointed as"
,ministers. A person who is not a member of either House of the
,"state legislature can also be appointed as a minister. But, within"
,"six months, he must become a member (either by election or by"
,"nomination) of either House of the state legislature, otherwise, he"
,ceases to be a minister.
,A minister who is a member of one House of the state
,legislature has the right to speak and to take part in the
,"proceedings of the other House. But, he can vote only in the"
,House of which he is a member.
, OATH AND SALARY OF MINISTERS
,
,"Before a minister enters upon his office, the governor administers"
,"to him the oaths of office and secrecy. In his oath of office, the"
,minister swears:
,"1. to bear true faith and allegiance to the Constitution of India,"
,"2. to uphold the sovereignty and integrity of India,"
,3. to faithfully and conscientiously discharge the duties of his
,"office, and"
,4. to do right to all manner of people in accordance with the
,"Constitution and the law, without fear or favour, affection or"
,ill-will.
,"In his oath of secrecy, the minister swears that he will not"
,directly or indirectly communicate or reveal to any person(s) any
,matter that is brought under his consideration or becomes known
,to him as a state minister except as may be required for the due
,discharge of his duties as such minister.
,The salaries and allowances of ministers are determined by the
,state legislature from time to time. A minister gets the salary and
,allowances which are payable to a member of the state
,"legislature. Additionally, he gets a sumptuary allowance"
,"(according to his rank), free accommodation, travelling allowance,"
,"medical facilities, etc."
, RESPONSIBILITY OF MINISTERS
,
,Collective Responsibility
,The fundamental principle underlying the working of parliamentary
,system of government is the principle of collective responsibility.
,Article 164 clearly states that the council of ministers is collectively
,responsible to the legislative assembly of the state. This means
,that all the ministers own joint responsibility to the legislative
,assembly for all their acts of omission and commission. They work
,as a team and swim or sink together. When the legislative
,assembly passes a no-confidence motion against the council of
,"ministers, all the ministers have to resign including those ministers"
,"who are from the legislative council2. Alternatively, the council of"
,ministers can advice the governor to dissolve the legislative
,assembly on the ground that the House does not represent the
,views of the electorate faithfully and call for fresh elections. The
,governor may not oblige the council of ministers which has lost
,the confidence of the legislative assembly.
,The principle of collective responsibility also mean that the
,cabinet decisions bind all cabinet ministers (and other ministers)
,even if they deferred in the cabinet meeting. It is the duty of every
,minister to stand by the cabinet decisions and support them both
,within and outside the state legislature. If any minister disagrees
,"with a cabinet decision and is not prepared to defend it, he must"
,resign. Several ministers have resigned in the past owing to their
,differences with the cabinet.
,
,Individual Responsibility
,Article 164 also contains the principle of individual responsibility. It
,states that the ministers hold office during the pleasure of the
,governor. This means that the governor can remove a minister at
,a time when the council of ministers enjoys the confidence of the
,"legislative assembly. But, the governor can remove a minister only"
,on the advice of the chief minister. In case of difference of opinion
,"or dissatisfaction with the performance of a minister, the chief"
,minister can ask him to resign or advice the governor to dismiss
,"him. By exercising this power, the chief minister can ensure the"
,realisation of the rule of collective responsibility.
,
,No Legal Responsibility
,"As at the Centre, there is no provision in the Constitution for the"
,system of legal responsibility of the minister in the states. It is not
,required that an order of the governor for a public act should be
,"countersigned by a minister. Moreover, the courts are barred from"
,enquiring into the nature of advice rendered by the ministers to
,the governor.
, COMPOSITION OF THE COUNCIL OF MINISTERS
,
,The Constitution does not specify the size of the state council of
,ministers or the ranking of ministers. They are determined by the
,chief minister according to the exigencies of the time and
,requirements of the situation.
,"Like at the Centre, in the states too, the council of ministers"
,"consists of three categories of ministers, namely, cabinet"
,"ministers, ministers of state, and deputy ministers. The difference"
,"between them lies in their respective ranks, emoluments, and"
,political importance. At the top of all these ministers stands the
,chief minister–supreme governing authority in the state.
,The cabinet ministers head the important departments of the
,"state government like home, education, finance, agriculture and"
,"so forth3. They are members of the cabinet, attend its meetings"
,"and play an important role in deciding policies. Thus, their"
,responsibilities extend over the entire gamut of state government.
,The ministers of state can either be given independent charge
,"of departments or can be attached to cabinet ministers. However,"
,they are not members of the cabinet and do not attend the cabinet
,meetings unless specially invited when something related to their
,departments are considered by the cabinet.
,Next in rank are the deputy ministers. They are not given
,independent charge of departments. They are attached to the
,"cabinet ministers and assist them in their administrative, political"
,and parliamentary duties. They are not members of the cabinet
,and do not attend cabinet meetings.
,"At times, the council of ministers may also include a deputy"
,chief minister. The deputy chief ministers are appointed mostly for
,local political reasons.
, CABINET
,
,A smaller body called cabinet is the nucleus of the council of
,ministers. It consists of only the cabinet ministers. It is the real
,centre of authority in the state government. It performs the
,following role:
,1. It is the highest decisionmaking authority in the politico-
,administrative system of a state.
,2. It is the chief policy formulating body of the state
,government.
,3. It is the supreme executive authority of the state
,government.
,4. It is the chief coordinator of state administration.
,5. It is an advisory body to the governor.
,6. It is the chief crisis manager and thus deals with all
,emergency situations.
,7. It deals with all major legislative and financial matters.
,8. It exercises control over higher appointments like
,constitutional     authorities     and      senior    secretariat
,administrators.
,
,Cabinet Committees
,The cabinet works through various committees called cabinet
,committees. They are of two types–standing and ad hoc. The
,former are of a permanent nature while the latter are of a
,temporary nature.
,They are set up by the chief minister according to the
,"exigencies of the time and requirements of the situation. Hence,"
,"their number, nomenclature and composition varies from time to"
,time.
,They not only sort out issues and formulate proposals for the
,"consideration of the cabinet but also take decisions. However, the"
,cabinet can review their decisions.
,
,Table 32.1 Articles Related to State Council of Ministers at a
,Glance
,Article No.      Subject Matter
,163.          Council of Ministers to aid and advise
,Governor
,164.          Other provisions as to Ministers
,166.          Conduct of business of the Government of a
,State
,167.          Duties of Chief Minister as respects the
,"furnishing of information to Governor, etc."
,177.          Rights of Ministers as respects the Houses
,
,
,NOTES AND REFERENCES
,"1. They may, in addition, be in charge of the welfare of the"
,SCs and BCs or any other work.
,2. Each minister need not resign separately; the
,resignation of the chief minister amounts to the
,resignation of the entire council of ministers.
,3. The term ‘ministry’ or ‘ministries’ is used only in the
,"centre and not in the states. In other words, the state"
,government is divided into departments and not
,ministries.
, 33       State Legislature
,
,
,
,
,T
,he state legislature occupies a preeminent and central position
,in the political system of a state.
,Articles 168 to 212 in Part VI of the Constitution deal with the
,"organisation, composition, duration, officers, procedures, privileges,"
,powers and so on of the state legislature. Though these are similar to
,"that of Parliament, there are some differences as well."
, ORGANISATION OF STATE LEGISLATURE
,There is no uniformity in the organisation of state legislatures. Most of
,"the states have an unicameral system, while others have a bicameral"
,"system. At present (2019), only six states have two Houses"
,"(bicameral). These are Andhra Pradesh, Telangana, Uttar Pradesh,"
,"Bihar, Maharashtra and Karnataka. The Jammu and Kashmir"
,Legislative Council was abolishes by the Jammu and Kashmir
,"Reorganisation Act, 2019.1 The Tamil Nadu Legislative Council Act,"
,2010 has not come into force. The Legislative Council in Andhra
,"Pradesh was revived by the Andhra Pradesh Legislative Council Act,"
,2005. The 7th Amendment Act of 1956 provided for a Legislative
,"Council in Madhya Pradesh. However, a notification to this effect has"
,"to be made by the President. So far, no such notification has been"
,"made. Hence, Madhya Pradesh continues to have one House only."
,"The twenty-two states have unicameral system. Here, the state"
,legislature consists of the governor and the legislative assembly. In
,"the states having bicameral system, the state legislature consists of"
,"the governor, the legislative council and the legislative assembly. The"
,legislative council (Vidhan Parishad) is the upper house (second
,"chamber or house of elders), while the legislative assembly (Vidhan"
,Sabha) is the lower house (first chamber or popular house).
,The Constitution provides for the abolition or creation of legislative
,"councils in states. Accordingly, the Parliament can abolish a legislative"
,"council (where it already exists) or create it (where it does not exist), if"
,the legislative assembly of the concerned state passes a resolution to
,that effect. Such a specific resolution must be passed by the state
,"assembly by a special majority, that is, a majority of the total"
,membership of the assembly and a majority of not less than two-thirds
,of the members of the assembly present and voting. This Act of
,Parliament is not to be deemed as an amendment of the Constitution
,for the purposes of Article 368 and is passed like an ordinary piece of
,"legislation (ie, by simple majority)."
,“The idea of having a second chamber in the states was criticised
,in the Constituent Assembly on the ground that it was not
,"representative of the people, that it delayed legislative process and"
,that it was an expensive institution2 .” Consequently the provision was
,made for the abolition or creation of a legislative council to enable a
,state to have a second chamber or not according to its own
,"willingness and financial strength. For example, Andhra Pradesh got"
,the legislative council created in 1957 and got the same abolished in
,1985. The Legislative Council in Andhra Pradesh was again revived in
,"2007, after the enactment of the Andhra Pradesh Legislative Council"
,"Act, 2005. The legislative council of Tamil Nadu had been abolished in"
,1986 and that of Punjab and West Bengal in 1969.
,"In 2010, the Legislative Assembly of Tamil Nadu passed a"
,resolution for the revival of the Legislative Council in the state.
,"Accordingly, the Parliament enacted the Tamil Nadu Legislative"
,"Council Act, 2010 which provided for the creation of Legislative"
,"Council in the state. However, before this Act was enforced, the"
,Legislative Assembly of Tamil Nadu passed another resolution in 2011
,seeking the abolition of the proposed Legislative Council.
, COMPOSITION OF TWO HOUSES
,
,Composition of Assembly
,
,Strength
,The legislative assembly consists of representatives directly elected
,by the people on the basis of universal adult franchise. Its maximum
,strength is fixed at 500 and minimum strength at 60. It means that its
,strength varies from 60 to 500 depending on the population size of the
,"state3. However, in case of Arunachal Pradesh, Sikkim and Goa, the"
,"minimum number is fixed at 30 and in case of Mizoram and Nagaland,"
,"it is 40 and 46 respectively. Further, some members of the legislative"
,assemblies in Sikkim and Nagaland are also elected indirectly.
,
,Nominated Member
,The governor can nominate one member from the Anglo-Indian
,"community, if the community is not adequately represented in the"
,"assembly.4 Originally, this provision was to operate for ten years (ie,"
,upto 1960). But this duration has been extended continuously since
,"then by 10 years each time. Now, under the 95th Amendment Act of"
,"2009, this is to last until 2020."
,
,Territorial Constituencies
,"For the purpose of holding direct elections to the assembly, each state"
,is divided into territorial constituencies. The demarcation of these
,constituencies is done in such a manner that the ratio between the
,population of each constituency and the number of seats allotted to it
,"isthe same throughout the state. In other words, the Constitution"
,ensures that there is uniformity of representation between different
,"constituencies in the state. The expression ‘population’ means, the"
,population as ascertained at the last preceding census of which the
,relevant figures have been published.
,
,Readjustment after each census
,"After each census, a readjustment is to be made in the (a) total"
,number of seats in the assembly of each state and (b) the division of
,each state into territorial constituencies. The Parliament is empowered
,to determine the authority and the manner in which it is to be made.
,"Accordingly, Parliament has enacted the Delimitation Commission"
,"Acts in 1952, 1962, 1972 and 2002 for this purpose."
,The 42nd Amendment Act of 1976 had frozen total number of seats
,in the assembly of each state and the division of such state into
,territorial constituencies till the year 2000 at the 1971 level. This ban
,"on readjustment has been extended for another years (i.e., upto year"
,2026) by the 84th Amendment Act of 2001 with the same objective of
,encouraging population limiting measures.
,The 84th Amendment Act of 2001 also empowered the government
,to undertake readjustment and rationalisation of territorial
,constituencies in a state on the basis of the population figures of 1991
,"census. Later, the 87th Amendment Act of 2003 provided for the"
,delimitation of constituencies on the basis of 2001 census and not
,"1991 census. However, this can be done without altering the total"
,number of seats in the assembly of each state.
,
,Reservation of seats for SCs and STs
,The Constitution provided for the reservation of seats for scheduled
,castes and scheduled tribes in the assembly of each state on the
,basis of population ratios.5
,"Originally, this reservation was to operate for ten years (i.e., up to"
,1960). But this duration has been extended continuously since then by
,"10 years each time. Now, under the 95th Amendment Act of 2009, this"
,reservation is to last until 2020.
,
,Composition of Council
,Strength
,"Unlike the members of the legislative assembly, the members of the"
,legislative council are indirectly elected. The maximum strength of the
,council is fixed at one-third of the total strength of the assembly and
,the minimum strength is fixed at 406. It means that the size of the
,council depends on the size of the assembly of the concerned state.
,This is done to ensure the predominance of the directly elected House
,(assembly) in the legislative affairs of the state. Though the
,"Constitution has fixed the maximum and the minimum limits, the"
,actual strength of a Council is fixed by Parliament7 .
,
,Manner of Election
,Of the total number of members of a legislative council:
,   1. 1/3 are elected by the members of local bodies in the state like
,"municipalities, district boards, etc.,"
,2. 1/12 are elected by graduates of three years standing and
,"residing within the state,"
,"3. 1/12 are elected by teachers of three years standing in the state,"
,"not lower in standard than secondary school,"
,4. 1/3 are elected by the members of the legislative assembly of
,the state from amongst persons who are not members of the
,"assembly, and"
,5. the remainder are nominated by the governor from amongst
,persons who have a special knowledge or practical experience
,"of literature, science, art, cooperative movement and social"
,service.
,"Thus, 5/6 of the total number of members of a legislative council"
,are indirectly elected and 1/6 are nominated by the governor. The
,members are elected in accordance with the system of proportional
,representation by means of a single transferable vote. The bonafide or
,propriety of the governor’s nomination in any case cannot be
,challenged in the courts.
,This scheme of composition of a legislative council as laid down in
,the Constitution is tentative and not final. The Parliament is authorised
,"to modify or replace the same. However, it has not enacted any such"
,law so far.
, DURATION OF TWO HOUSES
,
,Duration of Assembly
,"Like the Lok Sabha, the legislative assembly is not a continuing"
,chamber. Its normal term is five years from the date of its first meeting
,after the general elections8. The expiration of the period of five years
,"operates as automatic dissolution of the assembly. However, the"
,"governor is authorised to dissolve the assembly at any time (i.e., even"
,before the completion of five years) to pave the way for fresh
,elections.
,"Further, the term of the assembly can be extended during the"
,period of national emergency by a law of Parliament for one year at a
,"time (for any length of time). However, this extension cannot continue"
,beyond a period of six months after the emergency has ceased to
,operate. This means that the assembly should be re-elected within six
,months after the revocation of emergency.
,
,Duration of Council
,"Like the Rajya Sabha, the legislative council is a continuing chamber,"
,"that is, it is a permanent body and is not subject to dissolution. But,"
,one-third of its members retire on the expiration of every second year.
,"So, a member continues as such for six years. The vacant seats are"
,filled up by fresh elections and nominations (by governor) at the
,beginning of every third year. The retiring members are also eligible
,for re-election and re-nomination any number of times.
, MEMBERSHIP OF STATE LEGISLATURE
,
,1. Qualifications
,The Constitution lays down the following qualifications for a person to
,be chosen a member of the state legislature.
,(a) He must be a citizen of India.
,(b) He must make and subscribe to an oath or affirmation before the
,person authorised by the Election Commission for this purpose.
,"In his oath or affirmation, he swears"
,(i) To bear true faith and allegiance to the Constitution of India
,(ii) To uphold the sovereignty and integrity of India
,(c) He must be not less than 30 years of age in the case of the
,legislative council and not less than 25 years of age in the case
,of the legislative assembly.
,(d) He must posses other qualifications prescribed by Parliament.
,"Accordingly, the Parliament has laid down the following additional"
,qualifications in the Representation of People Act (1951):
,(a) A person to be elected to the legislative council must be an
,elector for an assembly constituency in the concerned state and
,"to be qualified for the governor’s nomination, he must be a"
,resident in the concerned state.
,(b) A person to be elected to the legislative assembly must be an
,elector for an assembly constituency in the concerned state.
,(c) He must be a member of a scheduled caste or scheduled tribe if
,"he wants to contest a seat reserved for them. However, a"
,member of scheduled castes or scheduled tribes can also
,contest a seat not reserved for them.
,
,2. Disqualifications
,"Under the Constitution, a person shall be disqualified for being chosen"
,as and for being a member of the legislative assembly or legislative
,council of a state:
,(a) if he holds any office of profit under the Union or state
,government (except that of a minister or any other office
,"exempted by state legislature9 ),"
,"(b) if he is of unsound mind and stands so declared by a court,"
,"(c) if he is an undischarged insolvent,"
,  (d) if he is not a citizen of India or has voluntarily acquired the
,citizenship of a foreign state or is under any acknowledgement of
,"allegiance to a foreign state, and"
,(e) if he is so disqualified under any law made by Parliament.
,"Accordingly, the Parliament has prescribed a number of additional"
,disqualifications in the Representation of People Act (1951). These
,are similar to those for Parliament. These are mentioned here:
,1. He must not have been found guilty of certain election offences
,or corrupt practices in the elections.
,2. He must not have been convicted for any offence resulting in
,"imprisonment for two or more years. But, the detention of a"
,person under a preventive detention law is not a disqualification.
,3. He must not have failed to lodge an account of his election
,expenses within the time.
,"4. He must not have any interest in government contracts, works or"
,services.
,5. He must not be a director or managing agent nor hold an office
,of profit in a corporation in which the government has at least 25
,per cent share.
,6. He must not have been dismissed from government service for
,corruption or disloyalty to the state.
,7. He must not have been convicted for promoting enmity between
,different groups or for the offence of bribery.
,8. He must not have been punished for preaching and practicing
,"social crimes such as untouchability, dowry and sati."
,On the question whether a member has become subject to any of
,"the above disqualifications, the governor’s decision is final. However,"
,he should obtain the opinion of the Election Commission and act
,accordingly.
,
,Disqualification on Ground of Defection
,The Constitution also lays down that a person shall be disqualified for
,being a member of either House of state legislature if he is so
,disqualified on the ground of defection under the provisions of the
,Tenth Schedule.
,The question of disqualification under the Tenth Schedule is
,"decided by the Chairman, in the case of legislative council and,"
,"Speaker, in the case of legislative assembly (and not by the governor)."
,"In 1992, the Supreme Court ruled that the decision of"
,Chairman/Speaker in this regard is subject to judicial review10 .
,3. Oath or Affirmation
,"Every member of either House of state legislature, before taking his"
,"seat in the House, has to make and subscribe an oath or affirmation"
,before the governor or some person appointed by him for this
,purpose.
,"In this oath, a member of the state legislature swears:"
,(a) to bear true faith and allegiance to the Constitution of India;
,(b) to uphold the sovereignty and integrity of India; and
,(c) to faithfully discharge the duty of his office.
,"Unless a member takes the oath, he cannot vote and participate in"
,the proceedings of the House and does not become eligible to the
,privileges and immunities of the state legislature.
,A person is liable to a penalty of ₹500 for each day he sits or votes
,as a member in a House:
,(a) before taking and subscribing the prescribed oath or affirmation;
,or
,(b) when he knows that he is not qualified or that he is disqualified
,for its membership; or
,(c) when he knows that he is prohibited from sitting or voting in the
,House by virtue of any law made by Parliament or the state
,legislature.
,Members of a state legislature are entitled to receive such salaries
,and allowances as may from time to time be determined by the state
,legislature.
,
,4. Vacation of Seats
,"In the following cases, a member of the state legislature vacates his"
,seat:
,(a) Double Membership: A person cannot be a member of both
,Houses of state legislature at one and the same time. If a person
,"is elected to both the Houses, his seat in one of the Houses falls"
,vacant as per the provisions of a law made by the state
,legislature.
,(b) Disqualification: If a member of the state legislature becomes
,"subject to any of the disqualifications, his seat becomes vacant."
,(c) Resignation: A member may resign his seat by writing to the
,Chairman of legislative council or Speaker of legislative
,"assembly, as the case may be. The seat falls vacant when the"
,resignation is accepted11 .
,(d) Absence: A House of the state legislature can declare the seat of
,a member vacant if he absents himself from all its meeting for a
,period of sixty days without its permission.
,(e) Other Cases: A member has to vacate his seat in the either
,"House of state legislature,"
,"(i) if his election is declared void by the court,"
,"(ii) if he is expelled by the House,"
,(iii) if he is elected to the office of president or office of vice-presid
,and
,(iv) if he is appointed to the office of governor of a state.
, PRESIDING OFFICERS OF STATE LEGISLATURE
,
,Each House of state legislature has its own presiding officer. There is
,a Speaker and a Deputy Speaker for the legislative assembly and a
,Chairman and a Deputy Chairman for the legislative council. A panel
,of chairman for the assembly and a panel of vice-chairman for the
,council is also appointed.
,
,Speaker of Assembly
,The Speaker is elected by the assembly itself from amongst its
,members.
,"Usually, the Speaker remains in office during the life of the"
,"assembly. However, he vacates his office earlier in any of the following"
,three cases:
,1. if he ceases to be a member of the assembly;
,2. if he resigns by writing to the deputy speaker; and
,3. if he is removed by a resolution passed by a majority of all the
,then members of the assembly. Such a resolution can be moved
,only after giving 14 days advance notice.
,The Speaker has the following powers and duties:
,1. He maintains order and decorum in the assembly for conducting
,its business and regulating its proceedings. This is his primary
,responsibility and he has final power in this regard.
,2. He is the final interpreter of the provisions of (a) the Constitution
,"of India, (b) the rules of procedure and conduct of business of"
,"assembly, and (c) the legislative precedents, within the"
,assembly.
,3. He adjourns the assembly or suspends the meeting in the
,absence of a quorum.
,"4. He does not vote in the first instance. But, he can exercise a"
,casting vote in the case of a tie.
,5. He can allow a ‘secret’ sitting of the House at the request of the
,leader of the House.
,6. He decides whether a bill is a Money Bill or not and his decision
,on this question is final.
,7. He decides the questions of disqualification of a member of the
,"assembly, arising on the ground of defection under the"
,provisions of the Tenth Schedule.
,  8. He appoints the chairman of all the committees of the assembly
,and supervises their functioning. He himself is the chairman of
,"the Business Advisory Committee, the Rules Committee and the"
,General Purpose Committee.
,
,Deputy Speaker of Assembly
,"Like the Speaker, the Deputy Speaker is also elected by the assembly"
,itself from amongst its members. He is elected after the election of the
,Speaker has taken place.
,"Like the Speaker, the Deputy Speaker remains in office usually"
,"during the life of the assembly. However, he also vacates his office"
,earlier in any of the following three cases:
,1. if he ceases to be a member of the assembly;
,2. if he resigns by writing to the speaker; and
,3. if he is removed by a resolution passed by a majority of all the
,then members of the assembly. Such a resolution can be moved
,only after giving 14 days’ advance notice.
,The Deputy Speaker performs the duties of the Speaker’s office
,when it is vacant. He also acts as the Speaker when the latter is
,"absent from the sitting of assembly. In both the cases, he has all the"
,powers of the Speaker.
,The Speaker nominates from amongst the members a panel of
,chairman. Any one of them can preside over the assembly in the
,absence of the Speaker or the Deputy Speaker. He has the same
,powers as the speaker when so presiding. He holds office until a new
,panel of chairman is nominated.
,
,Chairman of Council
,The Chairman is elected by the council itself from amongst its
,members.
,The Chairman vacates his office in any of the following three cases:
,1. if he ceases to be a member of the council;
,2. if he resigns by writing to the deputy chairman; and
,3. if he is removed by a resolution passed by a majority of all the
,then members of the council. Such a resolution can be moved
,only after giving 14 days advance notice.
,"As a presiding officer, the powers and functions of the Chairman in"
,the council are similar to those of the Speaker in the assembly.
,"However, the Speaker has one special power which is not enjoyed by"
,the Chairman. The Speaker decides whether a bill is a Money Bill or
,not and his decision on this question is final.
,The salaries and allowances of the Speaker and the Deputy
,Speaker of the assembly and the Chairman and the Deputy Chairman
,of the council are fixed by the state legislature. They are charged on
,the Consolidated Fund of the State and thus are not subject to the
,annual vote of the state legislature.
,
,Deputy Chairman of Council
,"Like the Chairman, the Deputy Chairman is also elected by the council"
,itself from amongst its members.
,The deputy chairman vacates his office in any of the following three
,cases:
,1. if he ceases to be a member of the council;
,2. if he resigns by writing to the Chairman; and
,3. if he is removed by a resolution passed by a majority of all the
,then members of the council. Such a resolution can be moved
,only after giving 14 days advance notice.
,The Deputy Chairman performs the duties of the Chairman’s office
,when it is vacant. He also acts as the Chairman when the latter is
,"absent from the sitting of the council. In both the cases, he has all the"
,powers of the Chairman.
,The Chairman nominates from amongst the members a panel of
,vice-chairman. Any one of them can preside over the council in the
,absence of the Chairman or the Deputy Chairman. He has the same
,powers as the chairman when so presiding. He holds office until a new
,panel of vice-chairman is nominated.
, SESSIONS OF STATE LEGISLATURE
,
,Summoning
,The governor from time to time summons each House of state
,legislature to meet. The maximum gap between the two sessions of
,"state legislature cannot be more than six months, ie, the state"
,legislature should meet at least twice a year. A session of the state
,legislature consists of many sittings.
,
,Adjournment
,An adjournment suspends the work in a sitting for a specified time
,"which may be hours, days or weeks."
,Adjournment sine die means terminating a sitting of the state
,legislature for an indefinite period. The power of the adjournment as
,well as adjournment sine die lies with the presiding officer of the
,House.
,
,Prorogation
,The presiding officer (Speaker or Chairman) declares the House
,"adjourned sine die, when the business of the session is completed."
,"Within the next few days, the governor issues a notification for"
,prorogation of the session.
,"However, the governor can also prorogue the House which is in"
,"session. Unlike an adjournment, a prorogation terminates a session of"
,the House.
,
,Dissolution
,"The legislative council, being a permanent house, is not subject to"
,dissolution. Only the legislative assembly is subject to dissolution.
,"Unlike a prorogation, a dissolution ends the very life of the existing"
,"House, and a new House is constituted after the general elections are"
,held.
,The position with respect to lapsing of bills on the dissolution of the
,assembly is mentioned below:
,1. A Bill pending in the assembly lapses (whether originating in the
,assembly or transmitted to it by the council).
,  2. A Bill passed by the assembly but pending in the council lapses.
,3. A Bill pending in the council but not passed by the assembly
,does not lapse.
,4. A Bill passed by the assembly (in a unicameral state) or passed
,by both the houses (in a bicameral state) but pending assent of
,the governor or the President does not lapse.
,5. A Bill passed by the assembly (in a unicameral state) or passed
,by both the Houses (in a bicameral state) but returned by the
,president for reconsideration of House (s) does not lapse.
,
,Quorum
,Quorum is the minimum number of members required to be present in
,the House before it can transact any business. It is ten members or
,one-tenth of the total number of members of the House (including the
,"presiding officer), whichever is greater. If there is no quorum during a"
,"meeting of the House, it is the duty of the presiding officer either to"
,adjourn the House or to suspend the meeting until there is a quorum.
,
,Voting in House
,All matters at any sitting of either House are decided by a majority of
,votes of the members present and voting excluding the presiding
,officer. Only a few matters which are specifically mentioned in the
,"Constitution like removal of the speaker of the assembly, removal of"
,"the Chairman of the council and so on require special majority, not"
,"ordinary majority. The presiding officer (i.e., Speaker in the case of"
,assembly or chairman in the case of council or the person acting as
,"such) does not vote in the first instance, but exercises a casting vote"
,in the case of an equality of votes.
,
,Language in State Legislature
,The Constitution has declared the official language(s) of the state or
,"Hindi or English, to be the languages for transacting business in the"
,"state legislature. However, the presiding officer can permit a member"
,to address the House in his mother-tongue. The state legislature is
,authorised to decide whether to continue or discontinue English as a
,floor language after the completion of fifteen years from the
,"commencement of the Constitution (i.e., from 1965). In case of"
,"Himachal Pradesh, Manipur, Meghalaya and Tripura, this time limit is"
,"twenty-five years and that of Arunachal Pradesh, Goa and Mizoram, it"
,is forty years.
,
,Rights of Ministers and Advocate General
,"In addition to the members of a House, every minister and the"
,advocate general of the state have the right to speak and take part in
,the proceedings of either House or any of its committees of which he
,"is named a member, without being entitled to vote. There are two"
,reasons underlying this constitutional provision:
,"1. A minister can participate in the proceedings of a House, of"
,which he is not a member.
,"2. A minister, who is not a member of either House, can participate"
,in the proceedings of both the Houses12 .
, LEGISLATIVE PROCEDURE IN STATE LEGISLATURE
,
,Ordinary Bills
,
,Bill in the Originating House
,An ordinary bill can originate in either House of the state legislature (in
,case of a bicameral legislature). Such a bill can be introduced either
,by a minister or by any other member. The bill passes through three
,"stages in the originating House, viz,"
,"1. First reading,"
,"2. Second reading, and"
,3. Third reading.
,"After the bill is passed by the originating House, it is transmitted to"
,the second House for consideration and passage. A bill is deemed to
,have been passed by the state legislature only when both the Houses
,"have agreed to it, either with or without amendments. In case of a"
,"unicameral legislature, a bill passed by the legislative assembly is sent"
,directly to the governor for his assent.
,
,Bill in the Second House
,"In the second House also, the bill passes through all the three stages,"
,"that is, first reading, second reading and third reading."
,When a bill is passed by the legislative assembly and transmitted to
,"the legislative council, the latter has four alternatives before it:"
,"1. it may pass the bill as sent by the assembly (i.e., without"
,amendments);
,2. it may pass the bill with amendments and return it to the
,assembly for reconsideration;
,3. it may reject the bill altogether; and
,4. it may not take any action and thus keep the bill pending.
,If the council passes the bill without amendments or the assembly
,"accepts the amendments suggested by the council, the bill is deemed"
,to have been passed by both the Houses and the same is sent to the
,"the governor for his assent. On the other hand, if the assembly rejects"
,the amendments suggested by the council or the council rejects the
,"bill altogether or the council does not take any action for three months,"
,then the assembly may pass the bill again and transmit the same to
,the council. If the council rejects the bill again or passes the bill with
,amendments not acceptable to the assembly or does not pass the bill
,"within one month, then the bill is deemed to have been passed by"
,both the Houses in the form in which it was passed by the assembly
,for the second time.
,"Therefore, the ultimate power of passing an ordinary bill is vested in"
,"the assembly. At the most, the council can detain or delay the bill for a"
,period of four months–three months in the first instance and one
,month in the second instance. The Constitution does not provide for
,the mechanism of joint sitting of both the Houses to resolve the
,"disagreement between the two Houses over a bill. On the other hand,"
,there is a provision for joint sitting of the Lok Sabha and the Rajya
,Sabha to resolve a disagreement between the two over an ordinary
,"bill. Moreover, when a bill, which has originated in the council and was"
,"sent to the assembly, is rejected by the assembly, the bill ends and"
,becomes dead.
,"Thus, the council has been given much lesser significance, position"
,and authority than that of the Rajya Sabha at the Centre.
,
,Assent of the Governor
,"Every bill, after it is passed by the assembly or by both the Houses in"
,"case of a bicameral legislature, is presented to the governor for his"
,assent. There are four alternatives before the governor:
,1. he may give his assent to the bill;
,2. he may withhold his assent to the bill;
,3. he may return the bill for reconsideration of the House or
,Houses; and
,4. he may reserve the bill for the consideration of the President.
,"If the governor gives his assent to the bill, the bill becomes an Act"
,and is placed on the Statute Book. If the governor withholds his
,"assent to the bill, the bill ends and does not become an Act. If the"
,governor returns the bill for reconsideration and if the bill is passed by
,"the House or both the Houses again, with or without amendments,"
,"and presented to the governor for his assent, the governor must give"
,"his assent to the bill. Thus, the governor enjoys only a suspensive"
,veto. The position is same at the Central level also13 .
,
,Assent of the President
,When a bill is reserved by the governor for the consideration of the
,"President, the President may either give his assent to the bill or"
,withhold his assent to the bill or return the bill for reconsideration of
,the House or Houses of the state legislature. When a bill is so
,"returned, the House or Houses have to reconsider it within a period of"
,six months. The bill is presented again to the presidential assent after
,it is passed by the House or Houses with or without amendments. It is
,not mentioned in the Constitution whether it is obligatory on the part of
,the president to give his assent to such a bill or not.
,
,Money Bills
,The Constitution lays down a special procedure for the passing of
,Money Bills in the state legislature. This is as follows:
,A Money Bill cannot be introduced in the legislative council. It can
,be introduced in the legislative assembly only and that too on the
,recommendation of the governor. Every such bill is considered to be a
,government bill and can be introduced only by a minister.
,"After a Money Bill is passed by the legislative assembly, it is"
,transmitted to the legislative council for its consideration. The
,legislative council has restricted powers with regard to a Money Bill. It
,cannot reject or amend a Money Bill. It can only make
,recommendations and must return the bill to the legislative assembly
,within 14 days. The legislative assembly can either accept or reject all
,or any of the recommendations of the legislative council.
,"If the legislative assembly accepts any recommendation, the bill is"
,then deemed to have been passed by both the Houses in the modified
,"form. If the legislative assembly does not accept any recommendation,"
,the bill is then deemed to have been passed by both the Houses in
,the form originally passed by the legislative assembly without any
,change.
,If the legislative council does not return the bill to the legislative
,"assembly within 14 days, the bill is deemed to have been passed by"
,both Houses at the expiry of the said period in the form originally
,"passed by the legislative assembly. Thus, the legislative assembly has"
,more powers than legislative council with regard to a money bill. At the
,"most, the legislative council can detain or delay a money bill for a"
,period of 14 days.
,"Finally, when a Money Bill is presented to the governor, he may"
,"either give his assent, withhold his assent or reserve the bill for"
,presidential assent but cannot return the bill for reconsideration of the
,"state legislature. Normally, the governor gives his assent to a money"
,bill as it is introduced in the state legislature with his prior permission.
,"When a money bill is reserved for consideration of the President,"
,the president may either give his assent to the bill or withhold his
,assent to the bill but cannot return the bill for reconsideration of the
,state legislature.
,
,Table 33.1 Comparing Legislative Procedure in the Parliament and
,State Legislature
,Parliament                        State Legislature
,A. With Regard to Ordinary Bills
,1. It can be introduced in either     1. It can be introduced in either
,House of the Parliament.              House of the state legislature.
,2. It can be introduced either by     2. I t can be introduced either by
,a minister or by a private            a minister or by private
,member.                               member.
,3. It passes through first            3. It   passes     through     first
,"reading, second reading and           reading, second reading and"
,third reading in the originating      third reading in the originating
,House.                                House.
,4. It is deemed to have been          4. It is deemed to have been
,passed by the Parliament              passed      by     the   state
,only when both the Houses             legislature only when both the
,"have agreed to it, either with        Houses have agreed to it,"
,or without amendments.                either    with    or   without
,amendments.
,5. A deadlock between the two         5. A deadlock between the two
,Houses takes place when the           Houses takes place when the
,"second         House,     after       legislative     council,   after"
,receiving a bill passed by the        receiving a bill passed by the
,"first House, rejects the bill or      legislative assembly, rejects"
,proposes amendments that              the      bill    or    proposes
,are not acceptable to the first       amendments that are not
,House or does not pass the            acceptable to the legislative
,bill within six months.               assembly or does not pass
,the bill within three months.
,6. The Constitution provides for      6. The Constitution does not
,the mechanism of joint sitting        provide for the mechanism of
,of two Houses of the                  joint sitting of two Houses of
,Parliament to resolve a               the state legislature to
,resolve a deadlock between
,   deadlock between them over              them over the passage of a
,the passage of a bill.                  bill.
,7. The Lok Sabha cannot 7. The legislative assembly can
,override the Rajya Sabha by     override       the   legislative
,passing the bill for the        council by passing the bill for
,second time and vice versa.     the second time and not vice
,A joint sitting is the only way versa. When a bill is passed
,to    resolve     a    deadlock by the assembly for the
,between the two Houses.         second time and transmitted
,"to the legislative council, if"
,the legislative council rejects
,"the bill again, or proposes"
,amendments that are not
,acceptable to the legislative
,"assembly, or does not pass"
,"the bill within one month, then"
,the bill is deemed to have
,been passed by both the
,Houses in the form in which it
,was passed by the legislative
,assembly for the second
,time.
,8. The mechanism of joint               8. The mechanism of passing
,sitting     for      resolving  a       the bill for the second time to
,deadlock applies to a bill              resolve a deadlock applies to
,whether originating in the Lok          a bill originating in the
,Sabha or the Rajya Sabha. If            legislative assembly only.
,"a     joint     sitting    is  not      When a bill, which has"
,"summoned by the president,              originated in the legislative"
,the bill ends and becomes               council and sent to the
,"dead.                                   legislative     assembly,    is"
,"rejected by the latter, the bill"
,ends and becomes dead.
,B. With Regard to Money Bills
,1. It can be introduced only in         1. It can be introduced only in
,the Lok Sabha and not in the            the legislative assembly and
,Rajya Sabha.                            not in the legislative council.
,2. It can be introduced only on         2. It can be introduced only on
,the recommendation of the               the recommendation of the
,   president.                          governor.
,3. I t can be introduced only by    3. It can be introduced only by a
,a minister and not by a             minister and not by a private
,private member.                     member.
,4. It cannot be rejected or         4. It cannot be rejected or
,amended by the Rajya                amended by the legislative
,Sabha. It should be returned        council. It should be returned
,to the Lok Sabha within 14          to the legislative assembly
,"days, either with or without        within 14 days, either with or"
,recommendations.                    without amendments.
,5. The Lok Sabha can either         5. The legislative assembly can
,accept or reject all or any of      either accept or reject all or
,the recommendations of the          any of the recommendations
,Rajya Sabha.                        of the legislative council.
,6. If the Lok Sabha accepts any     6. If the legislative assembly
,"recommendation, the bill is         accepts                 any"
,"then deemed to have been            recommendation, the bill is"
,passed by both the Houses in        then deemed to have been
,the modified form.                  passed by both the Houses in
,the modified form.
,7. If the Lok Sabha does not        7. If the legislative assembly
,"accept any recommendation,          does     not     accept   any"
,"the bill is then deemed to          recommendation, the bill is"
,have been passed by both            then deemed to have been
,the Houses in the form              passed by both the Houses in
,originally passed by the Lok        the form originally passed by
,Sabha without any change.           the    legislative   assembly
,without any change.
,8. If the Rajya Sabha does not 8. If the legislative council does
,return the bill to the Lok     not return the bill to the
,"Sabha within 14 days, the bill legislative assembly within 14"
,"is deemed to have been         days, the bill is deemed to"
,passed by both the Houses      have been passed by both
,at the expiration of the said  the Houses at the expiration
,period in the form originally  of the said period in the form
,passed by the Lok Sabha.       originally passed by the
,legislative assembly.
,9. The Constitution does not        9. The Constitution does not
,provide for the resolution of    provide for the resolution of
,any deadlock between the         any deadlock between the
,"two Houses. This is because,     two Houses. This is because,"
,the will of the Lok Sabha is     the will of the legislative
,made to prevail over that of     assembly is made to prevail
,"the Rajya Sabha, if the latter   over that of legislative"
,"does not agree to the bill       council, if the latter does not"
,passed by the former.            agree to the bill passed by
,the former.
, POSITION OF LEGISLATIVE COUNCIL
,The constitutional position of the council (as compared with the
,assembly) can be studied from two angles:
,A. Spheres where council is equal to assembly.
,B. Spheres where council is unequal to assembly.
,
,Equal with Assembly
,"In the following matters, the powers and status of the council are"
,broadly equal to that of the assembly:
,"1. Introduction and passage of ordinary bills. However, in case of"
,"disagreement between the two Houses, the will of the assembly"
,prevails over that of the council.
,2. Approval of ordinances issued by the governor14 .
,3. Selection of ministers including the chief minister. Under the
,"Constitution the, ministers including the chief minister can be"
,"members of either House of the state legislature. However,"
,"irrespective of their membership, they are responsible only to the"
,assembly.
,4. Consideration of the reports of the constitutional bodies like
,"State Finance Commission, state public service commission and"
,Comptroller and Auditor General of India.
,5. Enlargement of the jurisdiction of the state public service
,commission.
,
,Unequal with Assembly
,"In the following matters, the powers and status of the council are"
,unequal to that of the assembly:
,1. A Money Bill can be introduced only in the assembly and not in
,the council.
,2. The council cannot amend or reject a money bill. It should return
,"the bill to the assembly within 14 days, either with"
,recommendations or without recommendations.
,3. The assembly can either accept or reject all or any of the
,"recommendation of the council. In both the cases, the money bill"
,is deemed to have been passed by the two Houses.
,4. The final power to decide whether a particular bill is a money bill
,or not is vested in the Speaker of the assembly.
,   5. The final power of passing an ordinary bill also lies with the
,"assembly. At the most, the council can detain or delay the bill for"
,the period of four months–three months in the first instance and
,"one month in the second instance. In other words, the council is"
,not even a revising body like the Rajya Sabha; it is only a
,dilatory chamber or an advisory body.
,6. The council can only discuss the budget but cannot vote on the
,demands for grants (which is the exclusive privilege of the
,assembly).
,7. The council cannot remove the council of ministers by passing a
,"no-confidence motion. This is because, the council of ministers"
,"is collectively responsible only to the assembly. But, the council"
,can discus and criticise the policies and activities of the
,Government.
,"8. When an ordinary bill, which has originated in the council and"
,"was sent to the assembly, is rejected by the assembly, the bill"
,ends and becomes dead.
,9. The council does not participate in the election of the president
,of India and representatives of the state in the Rajya Sabha.
,10. The council has no effective say in the ratification of a
,"constitutional amendment bill. In this respect also, the will of the"
,assembly prevails over that of the council15 .
,"11. Finally, the very existence of the council depends on the will of"
,the assembly. The council can be abolished by the Parliament
,on the recommendation of the assembly.
,"From the above, it is clear that the position of the council vis-a-vis"
,the assembly is much weaker than the position of the Rajya Sabha
,vis-a-vis the Lok Sabha. The Rajya Sabha has equal powers with the
,Lok Sabha in all spheres except financial matters and with regard to
,"the control over the Government. On the other hand, the council is"
,"subordinate to the assembly in all respects. Thus, the predominance"
,of the assembly over the council is fully established.
,Even though both the council and the Rajya Sabha are second
,"chambers, the Constitution has given the council much lesser"
,importance than the Rajya Sabha due to the following reasons:
,1. The Rajya Sabha consists of the representatives of the states
,and thus reflect the federal element of the polity. It maintains the
,federal equilibrium by protecting the interests of the states
,"against the undue interference of the Centre. Therefore, it has to"
,be an effective revising body and not just an advisory body or
,"       dilatory body like that of the council. Onthe other hand, the issue"
,of federal significance does not arise in the case of a council.
,2. The council is heterogeneously constituted. It represents
,different interests and consists of differently elected members
,and also include some nominated members. Its very composition
,makes its position weak and reduces its utility as an effective
,"revising body. On the other hand, the Rajya Sabha is"
,homogeneously constituted. It represents only the states and
,consists of mainly elected members (only 12 out of 250 are
,nominated).
,3. The position accorded to the council is in accordance with the
,principles of democracy. The council should yield to the
,"assembly, which is a popular house. This pattern of relationship"
,between the two Houses of the state legislature is adopted from
,"the British model. In Britain, the House of Lords (Upper House)"
,cannot oppose and obstruct the House of Commons (Lower
,House). The House of Lords is only a dilatory chamber–it can
,delay an ordinary bill for a maximum period of one year and a
,money bill for one month.16
,"Keeping in view its weak, powerless and insignificant position and"
,"role, the critics have described the council as a ‘secondary chamber’,"
,"‘costly ornamental luxury’, ‘white elephant’, etc. The critics have"
,opined that the council has served as a refuge for those who are
,"defeated in the assembly elections. It enabled the unpopular, rejected"
,and ambitious politicians to occupy the post of a chief minister or a
,minister or a member of the state legislature.
,Even though the council has been given less powers as compared
,"with the assembly, its utility is supported on the following grounds:"
,"1. It checks the hasty, defective, careless and ill-considered"
,legislation made by the assembly by making provision for
,revision and thought.
,2. It facilitates representation of eminent professionals and experts
,who cannot face direct elections. The governor nominates one-
,sixth members of the council to provide representation to such
,people.
, PRIVILEGES OF STATE LEGISLATURE
,
,"Privileges of a state legislature are a sum of special rights, immunities"
,"and exemptions enjoyed by the Houses of state legislature, their"
,committees and their members. They are necessary in order to secure
,the independence and effectiveness of their actions. Without these
,"privileges, the Houses can neither maintain their authority, dignity and"
,honour nor can protect their members from any obstruction in the
,discharge of their legislative responsibilities.
,The Constitution has also extended the privileges of the state
,legislature to those persons who are entitled to speak and take part in
,the proceedings of a House of the state legislature or any of its
,committees. These include advocate-general of the state and state
,ministers.
,It must be clarified here that the privileges of the state legislature do
,not extend to the governor who is also an integral part of the state
,legislature.
,The privileges of a state legislature can be classified into two broad
,categories–those that are enjoyed by each House of the state
,"legislature collectively, and those that are enjoyed by the members"
,individually.
,
,Collective Privileges
,The privileges belonging to each House of the state legislature
,collectively are:
,"1. It has the right to publish its reports, debates and proceedings"
,and also the right to prohibit others from publishing the same17 .
,2. It can exclude strangers from its proceedings and hold secret
,sittings to discuss some important matters.
,3. It can make rules to regulate its own procedure and the conduct
,of its business and to adjudicate upon such matters.
,4. It can punish members as well as outsiders for breach of its
,"privileges or its contempt by reprimand, admonition or"
,"imprisonment (also suspension or expulsion, in case of"
,members).
,"5. It has the right to receive immediate information of the arrest,"
,"detention, conviction, imprisonment and release of a member."
,6. It can institute inquiries and order the attendance of witnesses
,and send for relevant papers and records.
,  7. The courts are prohibited to inquire into the proceedings of a
,House or its Committes.
,"8. No person (either a member or outsider) can be arrested, and"
,no legal process (civil or criminal) can be served within the
,precincts of the House without the permission of the presiding
,officer.
,
,Individual Privileges
,The privileges belonging to the members individually are:
,1. They cannot be arrested during the session of the state
,legislature and 40 days before the beginning and 40 days after
,the end of such session. This privilege is available only in civil
,cases and not in criminal cases or preventive detention cases.
,2. They have freedom of speech in the state legislature. No
,member is liable to any proceedings in any court for anything
,said or any vote given by him in the state legislature or its
,committees. This freedom is subject to the provisions of the
,Constitution and to the rules and standing orders regulating the
,procedure of the state legislature18 .
,3. They are exempted from jury service. They can refuse to give
,evidence and appear as a witness in a case pending in a court
,when the state legislature is in session.
,
,Table 33.2 Strength of Legislative Assemblies and Legislative
,Councils (2019)
,S.        Name of the        Number of Seats      Number of Seats
,No.       State/Union         in Legislative       in Legislative
,Territory            Assembly              Council
,I. STATES
,1.   Andhra Pradesh                175                  5818a
,2.   Arunachal Pradesh             60                    –
,3.   Assam                         126                   –
,4.   Bihar                         243                   75
,5.   Chhattisgarh                  90                    –
,6.   Goa                           40                    –
,7.   Gujarat                       182                   –
,  8.   Haryana                        90                 –
,9.   Himachal Pradesh               68                 –
,10.   Jharkhand                      81                 –
,11.   Karnataka                      224               75
,12.   Kerala                         140                –
,13.   Madhya Pradesh                 230                –
,14.   Maharashtra                    288               78
,15.   Manipur                        60                 –
,16.   Meghalaya                      60                 –
,17.   Mizoram                        40                 –
,18.   Nagaland                       60                 –
,19.   Odisha                         147                –
,20.   Punjab                         117                –
,21.   Rajasthan                      200                –
,22.   Sikkim                         32        –
,23.   Tamil Nadu                     234                –
,24.   Telangana                      119               40
,25.   Tripura                        60                 –
,26.   Uttarakhand                    70                 –
,27.   Uttar Pradesh                  403               100
,28.   West Bengal                    294                –
,II. UNION TERRITORIES
,1.   Delhi                          70                 –
,2.   Puducherry                     30                 –
,3.   Jammu and                      8319               –
,Kashmir
,
,Table 33.3 Seats Reserved for SCs and STs in the Legislative
,Assemblies (2019)
,Name of the State/     Total      Reserved for   Reserved
,Union Territory                 the Scheduled    for the
,Castes
,                                           Scheduled
,Tribes
,I. STATES
,1.    Andhra Pradesh       175        29       7
,2.    Arunachal Pradesh     60        –       59
,3.    Assam                126        8       16
,4.    Bihar                243        38       2
,5.    Chhattisgarh          90        10      29
,6.    Goa                   40        1        –
,7.    Gujarat              182        13      27
,8.    Haryana               90        17       –
,9.    Himachal Pradesh      68        17       3
,10.   Jharkhand             81        9       28
,11.   Karnataka            224        36      15
,12.   Kerala               140        14       2
,13.   Madhya Pradesh       230        35      47
,14.   Maharashtra          288        29      25
,15.   Manipur               60        1       19
,16.   Meghalaya             60        –       55
,17.   Mizoram               40        –       38
,18.   Nagaland              60        –       59
,19.   Odisha               147        24      33
,20.   Punjab               117        34       –
,21.   Rajasthan            200        34      25
,22.   Sikkim                32        2       12
,23.   Tamil Nadu           234        44       2
,24.   Telangana            119        19      12
,25.   Tripura               60        10      20
,26.   Uttarakhand           70        13       2
,27.   Uttar Pradesh        403        85       –
,28.   West Bengal          294        68      16
,                      II. UNION TERRITORIES
,1.    Delhi                    70              12              –
,2.    Puducherry               30              5               –
,3.    Jammu and                83              6               –
,Kashmir
,
,Table 33.4 Articles Related to State Legislature at a Glance
,Article No.   Subject-matter
,General
,168.     Constitution of Legislatures in states
,169.     Abolition or creation of Legislative Councils in states
,170.     Composition of the Legislative Assemblies
,171.     Composition of the Legislative Councils
,172.     Duration of State Legislatures
,173.     Qualification for membership of the State Legislature
,"174.     Sessions of the State Legislature, prorogation and"
,dissolution
,175.     Right of Governor to address and send messages to
,the House or Houses
,176.     Special address by the Governor
,177.     Rights of Ministers and Advocate-General as
,respects the Houses
,Officers of the State Legislature
,178.     The Speaker and Deputy Speaker of the Legislative
,Assembly
,"179.     Vacation and resignation of, and removal from, the"
,offices of Speaker and Deputy Speaker
,180.     Power of the Deputy Speaker or other person to
,"perform the duties of the office of, or to act as,"
,Speaker
,181.     The Speaker or the Deputy Speaker not to preside
,while a resolution for his removal from office is under
,consideration
,  182.      The Chairman and Deputy Chairman of the
,Legislative Council
,"183.      Vacation and resignation of, and removal from, the"
,offices of Chairman and Deputy Chairman
,184.      Power of the Deputy Chairman or other person to
,"perform the duties of the office of, or to act as,"
,Chairman
,185.      The Chairman or the Deputy Chairman not to preside
,while a resolution for his removal from office is under
,consideration
,186.      Salaries and allowances of the Speaker and Deputy
,Speaker and the Chairman and Deputy Chairman
,187.      Secretariat of State Legislature
,Conduct of Business
,188.      Oath or affirmation by members
,"189.      Voting in Houses, power of Houses to act"
,notwithstanding vacancies and quorum
,Disqualifications of Members
,190.      Vacation of seats
,191.      Disqualifications for membership
,192.      Decision on questions as to disqualifications of
,members
,193.      Penalty for sitting and voting before making oath or
,affirmation under Article 188 or when not qualified or
,when disqualified
,"Powers, Privileges and Immunities of State Legislatures and"
,their Members
,"194.      Powers, privileges, etc., of the House of Legislatures"
,and of the members and committees thereof
,195.      Salaries and allowances of members
,Legislative Procedure
,196.      Provisions as to introduction and passing of Bills
,197.      Restriction on powers of Legislative Council as to
,Bills other than Money Bills
,       198.     Special procedure in respect of Money Bills
,199.     Definition of “Money Bills”
,200.     Assent to Bills
,201.     Bills reserved for consideration
,Procedure in Financial Matters
,202.     Annual financial statement
,203.     Procedure in Legislature with respect to estimates
,204.     Appropriation Bills
,"205.     Supplementary, additional or excess grants"
,"206.     Votes on account, votes of credit and exceptional"
,grants
,207.     Special provisions as to financial Bills
,Procedure Generally
,208      Rules of procedure
,209.     Regulation by law of procedure in the Legislature of
,the state in relation to financial business
,210.     Language to be used in the Legislature
,211.     Restriction on discussion in the Legislature
,212.     Courts not to inquire into proceedings of the
,Legislature
,Legislative Powers of the Governor
,213.     Power of Governor to promulgate Ordinances during
,recess of Legislature
,
,Table 33.5 Laws made by Parliament under Article 169 of the
,Constitution
,Sl. Acts                               Provisions
,No.
,1.    West Bengal Legislative         Provided for the abolition of
,"Council (Abolition) Act, 1969   the Legislative Council of the"
,State of West Bengal.
,2.    Punjab Legislative Council      Provided for the abolition of
,"(Abolition) Act, 1969           the Legislative Council of the"
,                                        State of Punjab.
,3.     Andhra Pradesh Legislative       Provided for the abolition of
,"Council (Abolition) Act, 1985    the Legislative Council of the"
,State of Andhra Pradesh.
,4.     Tamil Nadu Legislative           Provided for the abolition of
,"Council (Abolition) Act, 1986    the Legislative Council of the"
,State of Tamil Nadu.
,5.     Andhra Pradesh Legislative       Provided for the creation of
,"Council Act, 2005                Legislative Council for the"
,State of Andhra Pradesh.
,6.     Tamil Nadu Legislative           Provided for the creation of
,"Council Act, 2010                Legislative Council for the"
,State of Tamil Nadu.
,
,
,NOTES AND REFERENCES
,1. The erstwhile state of Jammu and Kashmir had adopted a
,"bicameral legislature by its own state Constitution, which"
,was separate from the Indian Constitution.
,"2. M.P. Jain, Indian Constitutional Law, Wadhwa Fourth"
,"edition, P. 159"
,3. See Table 33.2 at the end of this chapter.
,4. An Anglo-Indian means a person whose father or any other
,male progenitor in the male line is or was of European
,"descent, but who is domiciled within the territory of India"
,and is or was born within such territory of parents habitually
,resident therein and not established there for temporary
,purposes only.
,5. This means that the number of assembly seats reserved in
,a state for such castes and tribes is to bear the same
,proportion to the total number of seats in the assembly as
,the population of such castes and tribes in the concerned
,state bears to the total population of the state.
,6. The minimum strength fixed at 40 by the Constitution of
,India was not applicable to the erstwhile state of Jammu
,and Kashmir. Its council had 36 members under the
,provisions of its own state Constitution.
,7. See Table 33.2 at the end of this chapter.
, 8. The term of the legislative assembly of the erstwhile state of
,Jammu and Kashmir was six years under its own state
,Constitution.
,9. A minister in the union or state government is not
,"considered as holding an office of profit. Also, the state"
,legislature can declare that a particular office of profit will
,not disqualify its holder from its membership.
,"10. Kihota Hollohan v. Zachilhu, (1992)."
,"11. However, the Chairman/Speaker need not accept the"
,resignation if he is satisfied that it is not voluntary or
,genuine.
,"12. A person can remain a minister for six months, without"
,being a member of either house of the state legislature.
,13. For a comparative study of the veto power of the president
,"and the governor, see Chapter 30."
,14. For a comparative study of the ordinance-making power of
,"the president and the governor, see Chapter 30."
,"15. The position, in this regard, is very well analysed by J.C."
,Johari in the following way: ‘The Constitution is not clear on
,this point whether a bill of constitutional amendment
,referred to the states for ratification by their legislatures shall
,"include the Vidhan Parishad or not. In practice, it may be"
,understood that the will of the Vidhan Sabha has to prevail.
,In case the Vidhan Parishad concurs with the view of the
,"Vidhan Sabha, it is all right; in case it differs, the Vidhan"
,Sabha may pass it again and thereby ignore the will of the
,Vidhan Parishad as it can do in case of a non-money bill’.
,"(Indian Government and Politics, Vishal, Thirteenth Edition,"
,"2001, P. 441)."
,"16. The Parliament Act of 1911, and the Amending Act of 1949,"
,have curtailed the powers of the House of Lords and
,established the supremacy of the House of Commons.
,17. The 44th Amendment Act of 1978 restored the freedom of
,the press to publish true reports of state legislature without
,"its prior permission. But, this is not applicable in the case of"
,a secret sitting of the House.
,18. Article 211 of the Constitution says that no discussion shall
,take place in the legislature of a state with respect to the
,conduct of any judge of the Supreme Court or of a high
,court in the discharge of his duties. Under the rules of a
,"House(s) of the state legislature, use of unparliamentary"
,     language or unparliamentary conduct of a member is
,prohibited.
,"18a. The Andhra Pradesh Reorganisation (Amendment) Act,"
,"2015, increased the number of seats in the Legislative"
,Council of Andhra Pradesh from 50 to 58.
,"19. Under the Jammu and Kashmir Reorganisation Act, 2019,"
,the total number of seats fixed for the Legislative Assembly
,"of the Union territory of Jammu and Kashmir is 107. But, 24"
,seats fall in the Pakistan-occupied-Kashmir (PoK). These
,seats are vacant and are not to be taken into account for
,"reckoning the total membership of the Assembly. In addition,"
,the Lieutenant Governor of the Union territory of Jammu
,and Kashmir may nominate two members to the Assembly
,"to give representation to women, if in his opinion, women"
,are not adequately represented in the Assembly.
, 34       High Court
,
,
,
,
,I
,"n the Indian single integrated judicial system, the high court"
,operates below the Supreme Court but above the subordinate
,courts. The judiciary ina state consists of a high court and a
,hierarchy of subordinate courts. The high court occupies the top
,position in the judicial administration of a state.
,The institution of high court originated in India in 1862 when the
,"high courts were set up at Calcutta, Bombay and Madras1. In"
,"1866, a fourth high court was established at Allahabad. In the"
,"course of time, each province in British India came to have its own"
,"high court. After 1950, a high court existing in a province became"
,the high court for the corresponding state.
,The Constitution of India provides for a high court for each
,"state, but the Seventh Amendment Act of 1956 authorised the"
,Parliament to establish a common high court for two or more
,states or for two or more states and a union territory. The territorial
,jurisdiction of a high court is co-terminus with the territory of a
,"state. Similarly, the territorial jurisdiction of a common high court is"
,co-terminus with the territories of the concerned states and union
,territory.
,"At present (2019), there are 25 high courts in the country2. Out"
,"of them, only three high courts have jurisdiction over more than"
,"one state. Among the nine union territories, Delhi alone has a"
,separate high court (since 1966). The union territories of Jammu
,and Kashmir and Ladakh have a common high court. The other
,union territories fall under the jurisdiction of different state high
,courts. The Parilament can extend the jurisdiction of a high court
,to any union territory or exclude the jurisdiction of a high court
,from any union territory.
,"The name, year of establishment, territorial jurisdiction and seat"
,(with bench or benches) of all the 25 high courts are mentioned in
,Table 34.1 at the end of this chapter.
,   Articles 214 to 231 in Part VI of the Constitution deal with the
,"organisation, independence, jurisdiction, powers, procedures and"
,so on of the high courts.
, COMPOSITION AND APPOINTMENT
,Every high court (whether exclusive or common) consists of a
,chief justice and such other judges as the president may from time
,"to time deem necessary to appoint. Thus, the Constitution does"
,not specify the strength of a high court and leaves it to the
,"discretion of the president. Accordingly, the President determines"
,the strength of a high court from time to time depending upon its
,workload.
,
,Appointment of Judges
,The judges of a high court are appointed by the President. The
,chief justice is appointed by the President after consultation with
,the chief justice of India and the governor of the state concerned.
,"For appointment of other judges, the chief justice of the concerned"
,high court is also consulted. In case of a common high court for
,"two or more states, the governors of all the states concerned are"
,consulted by the president.
,"In the Second Judges case3 (1993), the Supreme Court ruled"
,"that no appointment of a judge of the high court can be made,"
,unless it is in conformity with the opinion of the chief justice of
,"India. In the Third Judges case4 (1998), the Supreme Court"
,"opined that in case of the appointment of high court judges, the"
,chief justice of India should consult a collegium of two senior-most
,"judges of the Supreme Court. Thus, the sole opinion of the chief"
,justice of India alone does not constitute the ‘consultation’
,process.
,The 99th Constitutional Amendment Act of 2014 and the
,National Judicial Appointments Commission Act of 2014 have
,replaced the Collegium System of appointing judges to the
,Supreme Court and High Courts with a new body called the
,"National Judicial Appointments Commission (NJAC). However, in"
,"2015, the Supreme Court has declared both the 99th"
,Constitutional Amendment as well as the NJAC Act as
,"unconstitutional and void. Consequently, the earlier collegium"
,system became operative again. This verdict was delivered by the
,Supreme Court in the Fourth Judges case4a (2015). The Court
,"opined that the new system (i.e., NJAC) would affect the"
,independence of the judiciary.
," QUALIFICATIONS, OATH AND SALARIES"
,
,Qualifications of Judges
,"A person to be appointed as a judge of a high court, should have"
,the following qualifications:
,1. He should be a citizen of India.
,2. (a) He should have held a judicial office in the territory of
,India for ten years; or
,(b) He should have been an advocate of a high court (or
,high courts in succession) for ten years.
,"From the above, it is clear that the Constitution has not"
,prescribed a minimum age for appointment as a judge of a high
,"court. Moreover, unlike in the case of the Supreme Court, the"
,Consitution makes no provision for appointment of a distinguished
,jurist as a judge of a high court.
,
,Oath or Affirmation
,"A person appointed as a judge of a high court, before entering"
,"upon his office, has to make and subscribe an oath or affirmation"
,before the governor of the state or some person appointed by him
,"for this purpose. In his oath, a judge of a high court swears:"
,1. to bear true faith and allegiance to the Constitution of India;
,2. to uphold the sovereignty and integrity of India;
,"3. to duly and faithfully and to the best of his ability, knowledge"
,and judgement perform the duties of the office without fear
,"or favour, affection or ill-will; and"
,4. to uphold the Constitution and the laws.
,
,Salaries and Allowances
,"The salaries, allowances, privileges, leave and pension of the"
,judges of a high court are determined from time to time by the
,Parliament. They cannot be varied to their disadvantage after their
,"appointment except during a financial emergency. In 2018, the"
,"salary of the chief justice was increased from ₹90,000 to 2.50 lakh"
,"per month and that of a judge from ₹80,000 to 2.25 lakh per"
,month6. They are also paid sumptuary allowance and provided
,"with free accommodation and other facilities like medical, car,"
,"telephone, etc."
,The retired chief justice and judges are entitled to 50% of their
,last drawn salary as monthly pension.
," TENURE, REMOVAL AND TRANSFER"
,
,Tenure of Judges
,The Constitution has not fixed the tenure of a judge of a high
,"court. However, it makes the following four provisions in this"
,regard:
,1. He holds office until he attains the age of 62 years5. Any
,questions regarding his age is to be decided by the
,president after consultation with the chief justice of India and
,the decision of the president is final.
,2. He can resign his office by writing to the president.
,3. He can be removed from his office by the President on the
,recommendation of the Parliament.
,4. He vacates his office when he is appointed as a judge of the
,Supreme Court or when he is transferred to another high
,court.
,
,Removal of Judges
,A judge of a high court can be removed from his office by an order
,of the President. The President can issue the removal order only
,after an address by the Parliament has been presented to him in
,the same session for such removal. The address must be
,"supported by a special majority of each House of Parliament (i.e.,"
,a majority of the total membership of that House and majority of
,not less than two-thirds of the members of that House present and
,voting). The grounds of removal are two–proved misbehaviour or
,"incapacity. Thus, a judge of a high court can be removed in the"
,same manner and on the same grounds as a judge of the
,Supreme Court.
,The Judges Enquiry Act (1968) regulates the procedure relating
,to the removal of a judge of a high court by the process of
,impeachment:
,1. A removal motion signed by 100 members (in the case of
,Lok Sabha) or 50 members (in the case of Rajya Sabha) is
,to be given to the Speaker/Chairman.
,2. The Speaker/Chairman may admit the motion or refuse to
,admit it.
,"   3. If it is admitted, then the Speaker/ Chairman is to constitute"
,a three-member committee to investigate into the charges.
,4. The committee should consist of (a) the chief justice or a
,"judge of the Supreme Court, (b) a chief justice of a high"
,"court, and (c) a distinguished jurist."
,5. If the committee finds the judge to be guilty of misbehaviour
,"or suffering from an incapacity, the House can take up the"
,consideration of the motion.
,6. After the motion is passed by each House of Parliament by
,"special majority, an address is presented to the president for"
,removal of the judge.
,"7. Finally, the president passes an order removing the judge."
,"From the above, it is clear that the procedure for the"
,impeachment of a judge of a high court is the same as that for a
,judge of the Supreme Court.
,It is interesting to know that no judge of a high court has been
,impeached so far.
,
,Transfer of Judges
,The President can transfer a judge from one high court to another
,"after consulting the Chief Justice of India. On transfer, he is"
,entitled to receive in addition to his salary such compensatory
,allowance as may be determined by Parliament.
,"In 1977, the Supreme Court ruled that the transfer of high court"
,judges could be resorted to only as an exceptional measure and
,only in public interest and not by way of punishment. Again in
,"1994, the Supreme Court held that judicial review is necessary to"
,"check arbitrariness in transfer of judges. But, only the judge who"
,is transferred can challenge it.
,"In the Third Judges case (1998), the Supreme Court opined"
,"that in case of the transfer of high court judges, the Chief Justice"
,"of India should consult, in addition to the collegium of four"
,"seniormost judges of the Supreme Court, the chief justice of the"
,two high courts (one from which the judge is being transferred and
,"the other receiving him). Thus, the sole opinion of the chief justice"
,of India does not constitute the ‘consultation’ process.
," ACTING, ADDITIONAL AND RETIRED JUDGES"
,
,Acting Chief Justice
,The President can appoint a judge of a high court as an acting
,chief justice of the high court when:
,1. the office of chief justice of the high court is vacant; or
,2. the chief justice of the high court is temporarily absent; or
,3. the chief justice of the high court is unable to perform the
,duties of his office.
,
,Additional and Acting Judges
,The President can appoint duly qualified persons as additional
,judges of a high court for a temporary period not exceeding two
,years when:
,1. there is a temporary increase in the business of the high
,court; or
,2. there are arrears of work in the high court.
,The President can also appoint a duly qualified person as an
,acting judge of a high court when a judge of that high court (other
,than the chief justice) is:
,1. unable to perform the duties of his office due to absence or
,any other reason; or
,2. appointed to act temporarily as chief justice of that high
,court.
,An acting judge holds office until the permanent judge resumes
,"his office. However, both the additional or acting judge cannot"
,hold office after attaining the age of 62 years.
,
,Retired Judges
,"At any time, the chief justice of a high court of a state can request"
,a retired judge of that high court or any other high court to act as a
,judge of the high court of that state for a temporary period. He can
,do so only with the previous consent of the President and also of
,the person to be so appointed. Such a judge is entitled to such
,allowances as the President may determine. He will also enjoy all
,"the jurisdiction, powers and privileges of a judge of that high court."
,"But, he will not otherwise be deemed to be a judge of that high"
,court.
, INDEPENDENCE OF HIGH COURT
,
,The independence of a high court is very essential for the
,effective discharge of the duties assigned to it. It should be free
,"from the encroachments, pressures and interferences of the"
,executive (council of ministers) and the legislature. It should be
,allowed to do justice without fear or favour.
,The Constitution has made the following provisions to
,safeguard and ensure the independent and impartial functioning
,of a high court.
,
,1. Mode of Appointment
,The judges of a high court are appointed by the president (which
,means the cabinet) in consultation with the members of the
,"judiciary itself (i.e., chief justice of India and the chief justice of the"
,high court). This provision curtails the absolute discretion of the
,executive as well as ensures that the judicial appointments are not
,based on any political or practical considerations.
,
,2. Security of Tenure
,The judges of a high court are provided with the security of tenure.
,They can be removed from office by the president only in the
,manner and on the grounds mentioned in the Constitution. This
,means that they do not hold their office during the pleasure of the
,"president, though they are appointed by him. This is obvious from"
,the fact that no judge of a high court has been removed (or
,impeached) so far.
,
,3. Fixed Service Conditions
,"The salaries, allowances, privileges, leave and pension of the"
,judges of a high court are determined from time to time by the
,"Parliament. But, they cannot be changed to their disadvantage"
,"after their appointment except during a financial emergency. Thus,"
,the conditions of service of the judges of a high court remain
,same during their term of office.
,
,4. Expenses Charged on Consolidated Fund
,"The salaries and allowances of the judges, the salaries,"
,allowances and pensions of the staff as well as the administrative
,expenses of a high court are charged on the consolidated fund of
,"the state. Thus, they are non-votable by the state legislature"
,(though they can be discussed by it). It should be noted here that
,the pension of a high court judge is charged on the Consolidated
,Fund of India and not the state.
,
,5. Conduct of Judges cannot be Discussed
,The Constitution prohibits any discussion in Parliament or in a
,state legislature with respect to the conduct of the judges of a high
,"court in the discharge of their duties, except when an"
,impeachment motion is under consideration of the Parliament.
,
,6. Ban on Practice after Retirement
,The retired permanent judges of a high court are prohibited from
,pleading or acting in any court or before any authority in India
,except the Supreme Court and the other high courts. This ensures
,that they do not favour any one in the hope of future favour.
,
,7. Power to Punish for its Contempt
,"A high court can punish any person for its contempt. Thus, its"
,actions and decisions cannot be criticised and opposed by
,anybody. This power is vested in a high court to maintain its
,"authority, dignity and honour."
,
,8. Freedom to Appoint its Staff
,The chief justice of a high court can appoint officers and servants
,of the high court without any interference from the executive. He
,can also prescribe their conditions of service.
,
,9. Its Jurisdiction cannot be Curtailed
,The jurisdiction and powers of a high court in so far as they are
,specified in the Constitution cannot be curtailed both by the
,"Parliament and the state legislature. But, in other respects, the"
,jurisdiction and powers of a high court can be changed both by
,the parliament and the state legislature.
,
,10. Separation from Executive
,The Constitution directs the state to take steps to separate the
,judiciary from the executive in public services. This means that the
,executive authorities should not possess the judicial powers.
,"Consequent upon its implementation, the role of executive"
,authorities in judicial administration came to an end7 .
, JURISDICTION AND POWERS OF HIGH COURT
,
,"Like the Supreme Court, the high court has been vested with quite"
,extensive and effective powers. It is the highest court of appeal in
,the state. It is the protector of the Fundamental Rights of the
,citizens. It is vested with the power to interpret the Constitution.
,"Besides, it has supervisory and consultative roles."
,"However, the Constitution does not contain detailed provisions"
,with regard to the jurisdiction and powers of a high court. It only
,lays down that the jurisdiction and powers of a high court are to be
,the same as immediately before the commencement of the
,"Constitution. But, there is one addition, that is, the Constitution"
,gives a high court jurisdiction over revenue matters (which it did
,not enjoy in the pre-con-stitution era). The Constitution also
,confers (by other provisions) some more additional powers on a
,"high court like writ jurisdiction, power of superintendence,"
,"consultative power, etc. Moreover, it empowers the Parliament"
,and the state legislature to change the jurisdiction and powers of a
,high court.
,"At present, a high court enjoys the following jurisdiction and"
,powers:
,1. Original jurisdiction.
,2. Writ jurisdiction.
,3. Appellate jurisdiction.
,4. Supervisory jurisdiction.
,5. Control over subordinate courts.
,6. A court of record.
,7. Power of judicial review.
,The present jurisdiction and powers of a high court are
,"governed by (a) the constitutional provisions, (b) the Letters"
,"Patent, (c) the Acts of Parliament, (d) the Acts of State"
,"Legislature, (e) Indian Penal Code, 1860, (f) Cirminal Procedure"
,"Code, 1973, and (g) Civil Procedure Code, 1908."
,
,1. Original Jurisdiction
,It means the power of a high court to hear disputes in the first
,"instance, not by way of appeal. It extends to the following:"
,  (a) Matters of admirality and contempt of court.
,(b) Disputes relating to the election of members of Parliament
,and state legislatures.
,(c) Regarding revenue matter or an act ordered or done in
,revenue collection.
,(d) Enforcement of fundamental rights of citizens.
,(e) Cases ordered to be transferred from a subordinate court
,involving the interpretation of the Constitution to its own file.
,"(f) The four high courts (i.e., Calcutta, Bombay, Madras and"
,Delhi High Courts) have original civil jurisdiction in cases of
,higher value.
,"Before 1973, the Calcutta, Bombay and Madras High Courts"
,also had original criminal jurisdiction. This was fully abolished by
,"the Criminal Procedure Code, 1973."
,
,2. Writ Jurisdiction
,Article 226 of the Constitution empowers a high court to issue
,"writs including habeas corpus, mandamus, certiorari, prohibition"
,and quo warranto for the enforcement of the fundamental rights of
,the citizens and for any other purpose. The phrase ‘for any other
,purpose’ refers to the enforcement of an ordinary legal right. The
,"high court can issue writs to any person, authority and"
,government not only within its territorial jurisdiction but also
,outside its territorial jurisdiction if the cause of action arises within
,its territorial jurisdiction8 .
,The writ jurisdiction of the high court (under Article 226) is not
,exclusive but concurrent with the writ jurisdiction of the Supreme
,"Court (under Article 32). It means, when the fundamental rights of"
,"a citizen are violated, the aggrieved party has the option of"
,moving either the high court or the Supreme Court directly.
,"However, the writ jurisdiction of the high court is wider than that of"
,"the Supreme Court. This is because, the Supreme Court can"
,issue writs only for the enforcement of fundamental rights and not
,"for any other purpose, that is, it does not extend to a case where"
,the breach of an ordinary legal right is alleged.
,"In the Chandra Kumar case9 (1997), the Supreme Court ruled"
,that the writ jurisdiction of both the high court and the Supreme
,Court constitute a part of the basic structure of the Constitution.
,"Hence, it cannot be ousted or excluded even by way of an"
,amendment to the Constitution.
,
,3. Appellate Jurisdiction
,A high court is primarily a court of appeal. It hears appeals against
,the judgements of subordinate courts functioning in its territorial
,jurisdiction. It has appellate jurisdiction in both civil and criminal
,"matters. Hence, the appellate jurisdiction of a high court is wider"
,than its original jurisdiction.
,
,(a) Civil Matters
,The civil appellate jurisdiction of a high court is as follows:
,(i) First appeals from the orders and judgements of the district
,"courts, additional district courts and other subordinate courts"
,"lie directly to the high court, on both questions of law and fact,"
,if the amount exceeds the stipulated limit.
,(ii) Second appeals from the orders and judgements of the
,district court or other subordinate courts lie to the high court in
,the cases involving questions of law only (and not questions
,of fact).
,"(iii) The Calcutta, Bombay and Madras High Courts have"
,provision for intra-court appeals. When a single judge of the
,high court has decided a case (either under the original or
,"appellate jurisdiction of the high court), an appeal from such a"
,decision lies to the division bench of the same high court.
,(iv) Appeals from the decisions of the administrative and other
,tribunals lie to the division bench of the state high court. In
,"1997, the Supreme Court ruled that the tribunals are subject"
,"to the writ jurisdiction of the high courts. Consequently, it is"
,not possible for an aggrieved person to approach the
,"Supreme Court directly against the decisions of the tribunals,"
,without first going to the high courts.
,
,(b) Criminal Matters
,The criminal appellate jurisdiction of a high court is as follows:
,(i) Appeals from the judgements of sessions court and additional
,sessions court lie to the high court if the sentence is one of
,     imprisonment for more than seven years. It should also be
,noted here that a death sentence (popularly known as capital
,punishment) awarded by a sessions court or an additional
,sessions court should be confirmed by the high court before it
,"can be executed, whether there is an appeal by the convicted"
,person or not.
,(ii) In some cases specified in various provisions of the Criminal
,"Procedure Code (1973), the appeals from the judgements of"
,"the assistant sessions judge, metropolitan magistrate or other"
,magistrates (judicial) lie to the high court.
,
,4. Supervisory Jurisdiction
,A high court has the power of superintendence over all courts and
,tribunals functioning in its territorial jurisdiction (except military
,"courts or tribunals). Thus, it may–"
,(a) call for returns from them;
,"(b) make and issue, general rules and prescribe forms for"
,regulating the practice and proceedings of them;
,"(c) prescribe forms in which books, entries and accounts are to"
,be kept by them; and
,"(d) settle the fees payable to the sheriff, clerks, officers and legal"
,practitioners of them.
,This power of superintendence of a high court is very broad
,"because, (i) it extends to all courts and tribunals whether they are"
,subject to the appellate jurisdiction of the high court or not; (ii) it
,covers not only administrative superintendence but also judicial
,superintendence; (iii) it is a revisional jurisdiction; and (iv) it can be
,suo-motu (on its own) and not necessarily on the application of a
,party.
,"However, this power does not vest the high court with any"
,unlimited authority over the subordinate courts and tribunals. It is
,an extraordinary power and hence has to be used most sparingly
,"and only in appropriate cases. Usually, it is limited to, (i) excess of"
,"jurisdiction, (ii) gross violation of natural justice, (iii) error of law,"
,"(iv) disregard to the law of superior courts, (v) perverse findings,"
,and (vi) manifest injustice.
,5. Control over Subordinate Courts
,In addition to its appellate jurisdiction and supervisory jurisdiction
,"over the subordinate courts as mentioned above, a high court has"
,an administrative control and other powers over them. These
,include the following:
,"(a) It is consulted by the governor in the matters of appointment,"
,posting and promotion of district judges and in the
,appointments of persons to the judicial service of the state
,(other than district judges).
,"(b) It deals with the matters of posting, promotion, grant of leave,"
,transfers and discipline of the members of the judicial service
,of the state (other than district judges).
,(c) It can withdraw a case pending in a subordinate court if it
,involves a substantial question of law that require the
,interpretation of the Constitution. It can then either dispose of
,the case itself or determine the question of law and return the
,case to the subordinate court with its judgement.
,(d) Its law is binding on all subordinate courts functioning within
,its territorial jurisdiction in the same sense as the law
,declared by the Supreme Court is binding on all courts in
,India.
,
,6. A Court of Record
,"As a court of record, a high court has two powers:"
,"(a) The judgements, proceedings and acts of the high courts are"
,recorded for perpetual memory and testimony. These records
,are admitted to be of evidentiary value and cannot be
,questioned when produced before any subordinate court.
,They are recognised as legal precedents and legal
,references.
,"(b) It has power to punish for contempt of court, either with"
,simple imprisonment or with fine or with both.
,The expression ‘contempt of court’ has not been defined by the
,"Constitution. However, the expression has been defined by the"
,"Contempt of Court Act of 1971. Under this, contempt of court may"
,be civil or criminal. Civil contempt means wilful disobedience to
,"any judgement, order, writ or other process of a court or wilful"
,breach of an undertaking given to a court. Criminal contempt
,means the publication of any matter or doing an act which–(i)
,scandalises or lowers the authority of a court; or (ii) prejudices or
,interferes with the due course of a judicial proceeding; or (iii)
,interferes or obstructs the administration of justice in any other
,manner.
,"However, innocent publication and distribution of some matter,"
,"fair and accurate report of judicial proceedings, fair and"
,reasonable criticism of judicial acts and comment on the
,administrative side of the judiciary do not amount to contempt of
,court.
,"As a court of record, a high court also has the power to review"
,"and correct its own judgement or order or decision, even though"
,no specific power of review is conferred on it by the Constitution.
,"The Supreme Court, on the other hand, has been specifically"
,conferred with the power of review by the constitution.
,
,7. Power of Judicial Review
,Judicial review is the power of a high court to examine the
,constitutionality of legislative enactments and executive orders of
,"both the Central and state governments. On examination, if they"
,"are found to be violative of the Constitution (ultra-vires), they can"
,"be declared as illegal, unconstitutional and invalid (null and void)"
,"by the high court. Consequently, they cannot be enforced by the"
,government.
,Though the phrase ‘judicial review’ has no where been used in
,"the Constitution, the provisions of Articles 13 and 226 explicitly"
,confer the power of judicial review on a high court. The
,constitutional validity of a legislative enactment or an executive
,order can be challenged in a high court on the following three
,grounds:
,"(a) it infringes the fundamental rights (Part III),"
,(b) it is outside the competence of the authority which has
,"framed it, and"
,(c) it is repugnant to the constitutional provisions.
,The 42nd Amendment Act of 1976 curtailed the judicial review
,power of high court. It debarred the high courts from considering
,"the constitutional validity of any central law. However, the 43rd"
,Amendment Act of 1977 restored the original position.
,
,Table 34.1 Name and Jurisdiction of High Courts
,Name             Year of    Territorial       Seat
,establishment Jurisdiction
,1. Allahabad          1866       Uttar Pradesh    Allahabad
,(Bench at
,Lucknow)
,2. Andhra             2019       Andhra Pradesh Amaravati
,Pradesh
,"3. Bombay13           1862       Maharashta,      Mumbai"
,"Goa, Dadra and   (Benches at"
,"Nagar Haveli     Nagpur,"
,and Daman and    Panaji and
,Diu              Aurangabad)
,4. Calcutta13         1862       West Bengal      Kolkata
,and Andaman      (Circuit
,and Nicobar      Bench at
,Islands          Port Blair)
,5. Chhattisgarh       2000       Chhattisgarh     Bilaspur
,6. Delhi              1966       Delhi            Delhi
,"7. Guwahati          194810      Assam,           Guwahati"
,"Nagaland,        (Benches at"
,"Mizoram and      Kohima,"
,Arunachal        Aizawl and
,Pradesh14        Itanagar)
,8. Gujarat            1960       Gujarat          Ahmedabad
,9. Himachal           1971       Himachal         Simla
,Pradesh                       Pradesh
,10. Jammu and          1928       Jammu and        Srinagar and
,Kashmir                       Kashmir and      Jammu
,Ladakh
,11. Jharkhand          2000       Jharkhand        Ranchi
,12. Karnataka         188411       Karnataka           Bengaluru
,13. Kerala             1956        Kerala and          Ernakulam
,Lakshadweep
,14. Madhya             1956        Madhya              Jabalpur
,Pradesh                        Pradesh             (Benches at
,Gwalior and
,Indore)
,15. Madras13           1862        Tamil Nadu and Chennai
,Puducherry
,16. Manipur15          2013        Manipur             Imphal
,17. Meghalaya15        2013        Meghalaya           Shillong
,18. Orissa16           1948        Odisha              Cuttack
,19. Patna              1916        Bihar               Patna
,"20. Punjab and        187512       Punjab,             Chandigarh"
,Haryana                        Haryana and
,Chandigarh
,21. Rajasthan          1949        Rajasthan           Jodhpur
,(Bench at
,Jaipur)
,22. Sikkim             1975        Sikkim              Gangtok
,23. Telangana17        1954        Telangana           Hyderabad
,24. Tripura15          2013        Tripura             Agartala
,25. Uttarakhand        2000        Uttarakhand         Nainital
,
,Table 34.2 Articles Related to High Courts at a Glance
,Article No.    Subject Matter
,214.        High Courts for states
,215.        High Courts to be courts of record
,216.        Constitution of High Courts
,217.        Appointment and conditions of the office of a
,Judge of a High Court
,218.    Application of certain provisions relating to
,Supreme Court to High Courts
,219.    Oath or affirmation by judges of High Courts
,220.    Restriction on practice after being a permanent
,judge
,"221.    Salaries etc., of judges"
,222.    Transfer of a judge from one High Court to
,another
,223.    Appointment of acting Chief Justice
,224.    Appointment of additional and acting judges
,224A.   Appointment of retired judges at sittings of
,High Courts
,225.    Jurisdiction of existing High Courts
,226.    Power of High Courts to issue certain writs
,226A.   Constitutional validity of Central laws not to be
,considered in proceedings under Article 226
,(Repealed)
,227.    Power of superintendence over all courts by
,the High Court
,228.    Transfer of certain cases to High Court
,228A.   Special provisions as to disposal of questions
,relating to constitutional validity of state laws
,(Repealed)
,229.    Officers and servants and the expenses of
,High Courts
,230.    Extension of jurisdiction of High Courts to
,union territories
,231.    Establishment of a common High Court for two
,or more states
,232.    Interpretation (Repealed)
,NOTES AND REFERENCES
,1. These three high courts were set up under the
,"provisions of the Indian High Courts Act, 1861."
,"2. With the creation of three more new states in 2000, the"
,"number of high courts increased from 18 to 21. Again,"
,with the creation of separate high courts for the three
,"north-eastern states of Manipur, Meghalaya and Tripura"
,"in 2013, the number of high courts increased from 21 to"
,"24. Further, with the establishment of a separate high"
,"court for the state of Andhra Pradesh in 2019, the"
,number of high courts increased from 24 to 25.
,3. Supreme Court Advocates v. Union of India (1993).
,4. In re Presidential Reference (1998). The president
,sought the Supreme Court’s opinion (under Article 143)
,on certain doubts over the consultation process to be
,adopted by the chief justice of India as stipulated in the
,1993 case.
,4a. Supreme Court Advocates-on-Record Association and
,another vs. Union of India (2015).
,5. The retirement age has been raised from 60 to 62 years
,by the 15th Amendment Act of 1963.
,"6. In 1950, their salaries were fixed at ₹4,000 per month"
,"and ₹3,500 per month respectively. In 1986, their"
,"salaries were raised to ₹9,000 per month and ₹8,000"
,"per month respectively. In 1998, their salaries were"
,"raised to ₹30,000 per month and ₹26,000 per month"
,"respectively. In 2009, their salaries were raised to"
,"₹90,000 per month and ₹80,000 per month respectively."
,7. The Criminal Procedure Code (1973) has effected the
,separation of judiciary from the executive (Article 50
,under the Directive Principles of State Policy).
,8. The second provision was added by the 15th
,Constitutional Amendment Act of 1963.
,9. L. Chandra Kumar v. Union of India (1997).
,10. Originally known as Assam High Court and renamed
,Guwahati High Court in 1971.
,11. Originally known as Mysore High Court and renamed
,Karnataka High Court in 1973.
,12. Originally known as Punjab High Court and renamed
,Punjab and Haryana High Court in 1966.
,"13. Though the names of Bombay, Calcutta and Madras"
,"are changed to Mumbai, Kolkata and Chennai"
,"respectively, the names of respective high courts are"
,not changed.
,"14. In 2013, separate high courts were created for the three"
,"north-eastern states of Manipur, Meghalaya and Tripura."
,15. Established      by     the     North-Eastern     Areas
,(Reorganisation) and other Related Laws (Amendment)
,"Act, 2012."
,"16. Though the name of Orissa is changed to Odisha, the"
,name of Orissa High Court is not changed.
,17. Originally known as Andhra Pradesh High Court
,"(established in 1954). In 2014, it was renamed as the"
,“High Court of Judicature at Hyderabad” and was made
,a common high court for the states of Andhra Pradesh
,"and Telangana. Again, with the establishment of a"
,separate high court for the state of Andhra Pradesh in
,"2019, it became the high court for the state of"
,Telangana.
, 35       Tribunals
,
,
,
,
,T
,he original Constitution did not contain provisions with
,respect to tribunals. The 42nd Amendment Act of 1976
,added a new Part XIV-A to the Constitution. This part is
,entitled as ‘Tribunals’ and consists of only two Articles–Article 323
,A dealing with administrative tribunals and Article 323 B dealing
,with tribunals for other matters.
, ADMINISTRATIVE TRIBUNALS
,
,Article 323 A empowers the Parliament to provide for the
,establishment of administrative tribunals for the adjudication of
,disputes relating to recruitment and conditions of service of
,"persons appointed to public services of the Centre, the states,"
,"local bodies, public corporations and other public authorities. In"
,"other words, Article 323 A enables the Parliament to take out the"
,adjudication of disputes relating to service matters from the civil
,courts and the high courts and place it before the administrative
,tribunals.
,"In pursuance of Article 323 A, the Parliament has passed the"
,Administrative Tribunals Act in 1985. The act authorises the
,Central government to establish one Central administrative
,tribunal and the state administrative tribunals. This act opened a
,new chapter in the sphere of providing speedy and inexpensive
,justice to the aggrieved public servants.
,
,Central Administrative Tribunal (CAT)
,The Central Administrative Tribunal (CAT) was set up in 1985 with
,the principal bench at Delhi and additional benches in different
,"states. At present, it has 17 regular benches, 15 of which operate"
,at the principal seats of high courts and the remaining two at
,Jaipur and Lucknow1. These benches also hold circuit sittings at
,other seats of high courts.
,The CAT exercises original jurisdiction in relation to recruitment
,and all service matters of public servants covered by it. Its
,"jurisdiction extends to the all-India services, the Central civil"
,"services, civil posts under the Centre and civilian employees of"
,"defence services. However, the members of the defence forces,"
,officers and servants of the Supreme Court and the secretarial
,staff of the Parliament are not covered by it.
,The CAT is a multi-member body consisting of a chairman and
,"members. Originally, the CAT consisted of a Chairman, Vice-"
,"Chairman and members. Later, in 2006, the provision for the Vice-"
,Chairman was removed by the Administrative Tribunals
,"(Amendment) Act, 2006. Hence, there are now no Vice-Chairman"
,"in the CAT. At present (2019), the sanctioned strength of the"
,Chairman is one and sanctioned strength of the Members is 65.
,They are drawn from both judicial and administrative streams and
,are appointed by the president. They hold office for a term of five
,years or until they attain the age of 65 years in case of chairman
,"and 62 years in case of members, whichever is earlier."
,The appointment of Members in CAT is made on the basis of
,recommendations of a high powered selection committee chaired
,by a sitting Judge of Supreme Court who is nominated by the
,Chief Justice of India. After obtaining the concurrence of Chief
,"Justice of India, appointments are made with the approval of"
,Appointments Committee of the Cabinet (ACC).
,The CAT is not bound by the procedure laid down in the Civil
,Procedure Code of 1908. It is guided by the principles of natural
,justice. These principles keep the CAT flexible in approach. Only a
,nominal fee of ₹50 is to be paid by the applicant. The applicant
,may appear either in person or through a lawyer.
,"Originally, appeals against the orders of the CAT could be"
,made only in the Supreme Court and not in the high courts.
,"However, in the Chandra Kumar case2 (1997), the Supreme Court"
,declared this restriction on the jurisdiction of the high courts as
,"unconstitutional, holding that judicial review is a part of the basic"
,structure of the Constitution. It laid down that appeals against the
,orders of the CAT shall lie before the division bench of the
,"concerned high court. Consequently, now it is not possible for an"
,aggrieved public servant to approach the Supreme Court directly
,"against an order of the CAT, without first going to the concerned"
,high court.
,
,State Administrative Tribunals
,The Administrative Tribunals Act of 1985 empowers the Central
,government to establish the State Administrative Tribunals (SATs)
,on specific request of the concerned state governments. So far
,"(2019), the SATs have been set up in the nine states of Andhra"
,"Pradesh, Himachal Pradesh, Odisha, Karnataka, Madhya"
,"Pradesh, Maharashtra, Tamil Nadu, West Bengal and Kerala."
,"However, the Madhya Pradesh, Tamil Nadu and Himachal"
,Pradesh Tribunals have since been abolished.
,"But subsequently, the Himachal Pradesh reestablished the SAT"
,and the state of Tamil Nadu has also requested now to re-
,"establish the same. Further, the state government of Haryana has"
,"requested to establish the SAT for their state. On the other hand,"
,the state government of Odisha has submitted a proposal for
,abolition of Odisha Administrative Tribunal.
,"Like the CAT, the SATs exercise original jurisdiction in relation"
,to recruitment and all service matters of state government
,employees.
,The chairman and members of the SATs are appointed by the
,president after consultation with the governor of the state
,concerned.
,The act also makes a provision for setting up of joint
,administrative tribunal (JAT) for two or more states. A JAT
,exercises all the jurisdiction and powers exercisable by the
,administrative tribunals for such states.
,The chairman and members of a JAT are appointed by the
,president after consultation with the governors of the concerned
,states.
, TRIBUNALS FOR OTHER MATTERS
,
,"Under Article 323 B, the Parliament and the state legislatures are"
,authorised to provide for the establishment of tribunals for the
,adjudication of disputes relating to the following matters:
,(a) Taxation
,"(b) Foreign exchange, import and export"
,(c) Industrial and labour
,(d) Land reforms
,(e) Ceiling on urban property
,(f) Elections to Parliament and state legislatures
,(g) Food stuffs
,(h) Rent and tenancy rights3
,Articles 323 A and 323 B differs in the following three aspects:
,1. While Article 323 A contemplates establishment of tribunals
,"for public service matters only, Article 323 B contemplates"
,establishment of tribunals for certain other matters
,(mentioned above).
,2. While tribunals under Article 323 A can be established only
,"by Parliament, tribunals under Article 323 B can be"
,established both by Parliament and state legislatures with
,respect to matters falling within their legislative competence.
,"3. Under Article 323 A, only one tribunal for the Centre and one"
,for each state or two or more states may be established.
,"There is no question of hierarchy of tribunals, whereas under"
,Article 323 B a hierarchy of tribunals may be created.
,"In Chandra Kumar case4 (1997), the Supreme Court declared"
,those provisions of these two articles which excluded the
,jurisdiction of the high courts and the Supreme Court as
,"unconstitutional. Hence, the judicial remedies are now available"
,against the orders of these tribunals.
,
,Table 35.1 Name and Jurisdiction of Benches of CAT
,Sl. Bench                     Territorial Jurisdiction of the
,No.                           Bench
,"1.    Principal Bench,       Delhi"
,        Delhi
,2.    Allahabad Bench      Uttar Pradesh (except the districts
,covered by Lucknow Bench) and
,Uttarakhand
,3.    Lucknow Bench        Uttar Pradesh (except the districts
,covered by the Allahabad Bench)
,4.    Cuttack Bench        Odisha
,5.    Hyderabad Bench      Andhra Pradesh and Telangana
,6.    Bangalore Bench      Karnataka
,7.    Madras Bench         Tamil Nadu and Puducherry
,8.    Ernakulam Bench      Kerala and Lakshadweep
,"9.    Bombay Bench         Maharashtra, Goa, Dadra and"
,"Nagar Haveli, and Daman and Diu"
,10.   Ahmedabad Bench      Gujarat
,11.   Jodhpur Bench        Rajasthan (except the districts
,covered by the Jaipur Bench)
,12.   Jaipur Bench         Rajasthan (except the districts
,covered by the Jodhpur Bench)
,"13.   Chandigarh Bench     Haryana, Himachal Pradesh,"
,"Punjab, Chandigarh, J&K and"
,Ladakh
,14.   Jabalpur Bench       Madhya Pradesh and Chhattisgarh
,15.   Patna Bench          Bihar and Jharkhand
,"16.   Calcutta Bench       West Bengal, Sikkim and Andaman"
,and Nicobar Islands
,"17.   Guwahati Bench       Assam, Meghalaya, Manipur,"
,"Tripura, Nagaland, Mizoram and"
,Arunachal Pradesh
,
,Table 35.2 Circuit Sittings of Benches of CAT
,Sl. Bench                   Circuit Sittings held at
,No.
,  1.     Allahabad Bench       Nainital
,"2.     Calcutta Bench        Port Blair, Gangtok"
,"3.     Chandigarh Bench      Shimla, Jammu, Srinagar"
,4.     Madras Bench          Puducherry
,"5.     Guwahati Bench        Shillong, Itanagar, Kohima,"
,"Agartala, Imphal, Aizwal"
,"6.     Jabalpur Bench        Indore, Gwalior, Bilaspur"
,"7.     Bombay Bench          Nagpur, Aurangabad, Panaji"
,8.     Patna Bench           Ranchi
,9.     Ernakulam Bench       Lakshadweep
,
,Table 35.3 Articles Related to Tribunals at a Glance
,Article No. Subject-matter
,323A.       Administrative tribunals
,323B.       Tribunals for other matters
,
,
,NOTES AND REFERENCES
,1. See Table 35.1 at the end of this chapter.
,"2. L. Chandra Kumar v. Union of India, (1997). Clause 2(d)"
,of Article 323 A was declared as unconstitutional.
,3. Added by the 75th Amendment Act of 1993.
,"4. L. Chandra Kumar v. Union of India, (1997). Clause 2(d)"
,of Article 323 A and Clause 3(d) of Article 323 B were
,declared as unconstitutional.
, 36      Subordinate Courts
,
,
,
,
,T
,he state judiciary consists of a high court and a hierarchy of
,"subordinate courts, also known as lower courts. The"
,subordinate courts are so called because of their subordination
,to the state high court. They function below and under the high court
,at district and lower levels.
, CONSTITUTIONAL PROVISIONS
,Articles 233 to 237 in Part VI of the Constitution make the following
,provisions to regulate the organization of subordinate courts and to
,ensure their independence from the executive1 .
,
,1. Appointment of District Judges
,"The appointment, posting and promotion of district judges in a state"
,are made by the governor of the state in consultation with the high
,court.
,A person to be appointed as district judge should have the following
,qualifications:
,(a) He should not already be in the service of the Central or the state
,government.
,(b) He should have been an advocate or a pleader for seven years.
,(c) He should be recommended by the high court for appointment.
,
,2. Appointment of District Judges
,Appointment of persons (other than district judges) to the judicial
,service of a state are made by the governor of the state after
,consultation with the State Public Service Commission and the high
,court2 .
,
,3. Control over Subordinate Courts
,The control over district courts and other subordinate courts including
,"the posting, promotion and leave of persons belonging to the judicial"
,service of a state and holding any post inferior to the post of district
,judge is vested in the high court.
,
,4. Interpretation
,"The expression ‘district judge’ includes judge of a city civil court,"
,"additional district judge, joint district judge, assistant district judge,"
,"chief judge of a small cause court, chief presidency magistrate,"
,"additional chief presidency magistrate, sessions judge, additional"
,sessions judge and assistant sessions judge.
,The expression ‘judicial service’ means a service consisting
,exclusively of persons intended to fill the post of district judge and
,other civil judicial posts inferior to the post of district judge.
,
,5. Application of the above Provisions to Certain Magistrates
,The Governor may direct that the above mentioned provisions relating
,to persons in the state judicial service would apply to any class or
,classes of magistrates in the state.
, STRUCTURE AND JURISDICTION
,"The organisational structure, jurisdiction and nomenclature of the"
,"subordinate judiciary are laid down by the states. Hence, they differ"
,"slightly from state to state. Broadly speaking, there are three tiers of"
,civil and criminal courts below the High Court. This is shown as
,follows:
,
,
,
,
,The district judge is the highest judicial authority in the district. He
,possesses original and appellate jurisdiction in both civil as well as
,"criminal matters. In other words, the district judge is also the sessions"
,"judge. When he deals with civil cases, he is known as the district"
,"judge and when he hears the criminal cases, he is called as the"
,sessions judge. The district judge exercises both judicial and
,administrative powers. He also has supervisory powers over all the
,subordinate courts in the district. Appeals against his orders and
,judgements lie to the High Court. The sessions judge has the power to
,impose any sentence including life imprisonment and capital
,"punishment (death sentence). However, a capital punishment passed"
,"by him is subject to confirmation by the High Court, whether there is"
,an appeal or not.
,Below the District and Sessions Court stands the Court of
,Subordinate Judge on the civil side and the Court of Chief Judicial
,Magistrate on the criminal side. The subordinate judge exercises
,unlimited pecuniary jurisdiction over civil suits3. The chief judicial
,magistrate decides criminal cases which are punishable with
,imprisonment for a term up to seven years.
,"At the lowest level, on the civil side, is the Court of Munsiff and on"
,"the criminal side, is the Court of Judicial Magistrate. The munsiff"
,possesses limited jurisdiction and decides civil cases of small
,pecuniary stake4. The judicial magistrate tries criminal cases which
,are punishable with imprisonment for a term up to three years.
,"In some metropolitan cities, there are city civil courts (chief judges)"
,on the civil side and the courts of metropolitan magistrates on the
,criminal side.
,Some of the States and Presidency towns have established small
,causes courts5. These courts decide the civil cases of small value in a
,"summary manner. Their decisions are final, but the High Court"
,possesses a power of revision.
,"In some states, Panchayat Courts try petty civil and criminal cases."
,"They are variously known as Nyaya Panchayat, Gram Kutchery,"
,"Adalati Panchayat, Panchayat Adalat and so on."
,
,Table 36.1 Articles Related to Subordinate Courts at a Glance
,Article No.     Subject Matter
,233.         Appointment of district judges
,"233A.        Validation of appointments of, and judgements,"
,"etc., delivered by certain district judges"
,234.         Recruitment of persons other than district judges
,to the judicial service
,235.         Control over subordinate courts
,236.         Interpretation
,237.         Application of the provisions of this Chapter to
,certain class or classes of Magistrates
, NATIONAL LEGAL SERVICES AUTHORITY6
,
,Article 39A of the Constitution of India provides for free legal aid to the
,poor and weaker sections of the society and ensures justice for all.
,Articles 14 and 22(1) of the Constitution also make it obligatory for the
,State to ensure equality before law and a legal system which
,promotes justice on the basis of equal opportunity to all. In the year
,"1987, the Legal Services Authorities Act was enacted by the"
,"Parliament which came into force on 9th November, 1995 to establish"
,a nationwide uniform network for providing free and competent legal
,services to the weaker sections of the society on the basis of equal
,opportunity. The National Legal Services Authority (NALSA) has been
,"constituted under the Legal Services Authorities Act, 1987 to monitor"
,and evaluate implementation of legal aid programmes and to lay down
,policies and principles for making legal services available under the
,Act.
,"In every State, a State Legal Services Authority and in every High"
,"Court, a High Court Legal Services Committee have been constituted."
,"The District Legal Services Authorities, Taluk Legal Services"
,Committees have been constituted in the Districts and most of the
,Taluks to give effect to the policies and directions of the NALSA and to
,provide free legal services to the people and conduct Lok Adalats in
,the State.
,The Supreme Court Legal Services Committee has been
,constituted to administer and implement the legal services programme
,insofar as it relates to the Supreme Court of India.
,"The NALSA lays down policies, principles, guidelines and frames"
,effective and economical schemes for the State Legal Services
,Authorities to implement the Legal Services Programmes throughout
,the country.
,"Primarily, the State Legal Services Authorities, District Legal"
,"Services Authorities, Taluk Legal Services Committees, etc. have"
,been asked to discharge the following main functions on regular basis:
,1. To provide free and competent legal services to the eligible
,persons.
,2. To organise Lok Adalats for amicable settlement of disputes.
,3. To organise legal awareness camps in the rural areas.
,The free legal services include:
,"(a) Payment of court fee, process fees and all other charges payable"
,or incurred in connection with any legal proceedings.
,(b) Providing service of lawyers in legal proceedings.
,(c) Obtaining and supply of certified copies of orders and other
,documents in legal proceedings.
,"(d) Preparation of appeal, paper book including printing and"
,translation of documents in legal proceedings.
,The persons eligible for getting free legal services include:
,(i) Women and children
,(ii) Members of SC/ST
,(iii) Industrial workmen
,"(iv) Victims of mass disaster, violence, f lood, drought, earthquak"
,industrial disaster
,(v) Disabled persons
,(vi) Persons in custody
,(vii) Persons whose annual income does not exceed ₹1 lakh (in t
,Supreme Court Legal Services Committee the limit
,"₹1,25,000/-)"
,(viii) Victims of trafficking in human beings or begar.
, LOK ADALATS
,
,The Lok Adalat is a forum where the cases (or disputes) which are
,pending in a court or which are at pre-litigation stage (not yet brought
,before a court) are compromised or settled in an amicable manner.
,
,Meaning
,The Supreme Court has explained the meaning of the institution of
,Lok Adalat in the following way7 :
,The ‘Lok Adalat’ is an old form of adjudicating system prevailed in
,ancient India and it’s validity has not been taken away even in the
,modern days too. The word ‘Lok Adalat’ means ‘People’s Court’. This
,system is based on Gandhian principles. It is one of the components
,of ADR (Alternative Dispute Resolution) system. As the Indian courts
,are overburdened with the backlog of cases and the regular courts are
,"to decide the cases involving a lengthy, expensive and tedious"
,procedure. The court takes years together to settle even petty cases.
,"The Lok Adalat, therefore, provides alternative resolution or devise for"
,expeditious and inexpensive justice.
,"In Lok Adalat proceedings, there are no victors and vanquished"
,"and, thus, no rancour."
,The experiment of ‘Lok Adalat’ as an alternate mode of dispute
,"settlement has come to be accepted in India, as a viable, economic,"
,efficient and informal one.
,The Lok Adalat is another alternative in judicial justice. This is a
,"recent strategy for delivering informal, cheap and expeditious justice"
,"to the common man by way of settling disputes, which are pending in"
,"courts and also those, which have not yet reached courts by"
,"negotiation, conciliation and by adopting persuasive, common sense"
,"and human approach to the problems of the disputants, with the"
,assistance of specially trained and experienced members of a team of
,conciliators.
,
,Statutory Status
,The first Lok Adalat camp in the postindependence era was organised
,in Gujarat in 1982. This initiative proved very successful in the
,"settlement of disputes. Consequently, the institution of Lok Adalat"
,"started spreading to other parts of the country. At that time, this"
,institution was functioning as a voluntary and conciliatory agency
,without any statutory backing for its decisions. In view of its growing
,"popularity, there arose a demand for providing a statutory backing to"
,"this institution and the awards given by Lok Adalats. Hence, the"
,institution of Lok Adalat has been given statutory status under the
,"Legal Services Authorities Act, 1987."
,The Act makes the following provisions relating to the organisation
,and functioning of the Lok Adalats:
,1. The State Legal Services Authority or the District Legal Services
,Authority or the Supreme Court Legal Services Committee or the
,High Court Legal Services Committee or the Taluk Legal
,Services Committee may organise Lok Adalats at such intervals
,and places and for exercising such jurisdiction and for such
,areas as it thinks fit.
,2. Every Lok Adalat organised for an area shall consist of such
,number of serving or retired judicial officers and other persons of
,the area as may be specified by the agency organizing such Lok
,"Adalat. Generally, a Lok Adalat consists of a judicial officer as"
,the chairman and a lawyer (advocate) and a social worker as
,members.
,3. A Lok Adalat shall have jurisdiction to determine and to arrive at
,a compromise or settlement between the parties to a dispute in
,respect of:
,(i) any case pending before any court; or
,(ii) any matter which is falling within the jurisdiction of any court an
,not brought before such court.
,"Thus, the Lok Adalat can deal with not only the cases pending"
,before a court but also with the disputes at pre-litigation stage.
,"The various matters such as Matri-monial/Family Disputes,"
,"Criminal (Compoundable Offences) cases, Land Acquisition"
,"cases, Labour disputes, Workmen’s compensation cases, Bank"
,"Recovery cases, Pension cases, Housing Board and Slum"
,"Clearance cases, Housing Finance cases, Consumer Grievance"
,"cases, Electricity matters, Disputes relating to Telephone Bills,"
,"Municipal matters including House Tax cases, Disputes with"
,Cellular Companies etc. are being taken up in the Lok Adalats.7a
,"But, the Lok Adalat shall have no jurisdiction in respect of any"
,case or matter relating to an offence not compoundable under
,"any law. In other words, the offences which are non-"
,     compoundable under any law fall outside the purview of the Lok
,Adalat.
,4. Any case pending before the court can be referred to the Lok
,Adalat for settlement if:
,(i) the parties thereof agree to settle the dispute in the Lok Adalat
,(ii) one of the parties thereof makes an application to the court
,referring the case to the Lok Adalat; or
,(iii) the court is satisfied that the matter is an appropriate one to
,taken cognizance of by the Lok Adalat.
,"In the case of a pre-litigation dispute, the matter can be"
,referred to the Lok Adalat for settlement by the agency
,"organizing the Lok Adalat, on receipt of an application from any"
,one of the parties to the dispute.
,5. The Lok Adalat shall have the same powers as are vested in a
,"Civil Court under the Code of Civil Procedure (1908), while trying"
,a suit in respect of the following matters:
,(a) the summoning and enforcing the attendance of any witness
,examining him on oath;
,(b) the discovery and production of any document;
,(c) the reception of evidence on affidavits;
,(d) the requisitioning of any public record or document from any
,court or office; and
,(e) such other matters as may be prescribed.
,"Further, a Lok Adalat shall have the requisite powers to"
,specify its own procedure for the determination of any dispute
,"coming before it. Also, all proceedings before a Lok Adalat shall"
,be deemed to be judicial proceedings within the meaning of the
,Indian Penal Code (1860) and every Lok Adalat shall be deemed
,to be a Civil Court for the purpose of the Code of Criminal
,Procedure (1973).
,6. An award of a Lok Adalat shall be deemed to be a decree of a
,Civil Court or an order of any other court. Every award made by
,a Lok Adalat shall be final and binding on all the parties to the
,dispute. No appeal shall lie to any court against the award of the
,Lok Adalat.
,
,Benefits
,"According to the Supreme Court, the benefits under Lok Adalat are as"
,follows8 :
,   1. There is no court fee and if court fee is already paid the amount
,will be refunded if the dispute is settled at Lok Adalat.
,2. The basic features of Lok Adalat are the procedural f lexibility
,and speedy trial of the disputes. There is no strict application of
,procedural laws like the Civil Procedure Code and the Evidence
,Act while assessing the claim by Lok Adalat.
,3. The parties to the dispute can directly interact with the judge
,through their counsel which is not possible in regular courts of
,law.
,4. The award by the Lok Adalat is binding on the parties and it has
,"the status of a decree of a civil court and it is non-appealable,"
,which does not cause the delay in the settlement of disputes
,finally.
,"In view of above facilities provided by the Act, Lok Adalats are boon"
,to the litigating public as they can get their disputes settled fast and
,free of cost amicably.
,The Law Commission of India summarized the advantages of ADR
,(Alternative Dispute Resolution) in the following way9 :
,1. It is less expensive.
,2. It is less time-consuming.
,3. It is free from technicalities vis-a-vis conducting of cases in law
,courts.
,4. Parties are free to discuss their differences of opinion without
,any fear of disclosure before any law courts.
,5. Parties have the feeling that there is no losing or winning side
,between them but at the same time their grievance is redressed
,and their relationship is restored.
, PERMANENT LOK ADALATS
,
,"The Legal Services Authorities Act, 1987 was amended in 2002 to"
,provide for the establishment of the Permanent Lok Adalats to deal
,with cases pertaining to the public utility services.
,
,Reasons
,The reasons for the establishment of Permanent Lok Adalats are as
,follows:
,"1. The Legal Services Authorities Act, 1987 was enacted to"
,constitute legal services authorities for providing free and
,competent legal services to the weaker sections of the society to
,ensure that opportunities for securing justice were not denied to
,any citizen by reason of economic or other disabilities and to
,organise Lok Adalats to ensure that the operation of the legal
,system promotes justice on a basis of equal opportunity.
,"2. The system of Lok Adalat, which is an innovative mechanism for"
,"alternate dispute resolution, has proved effective for resolving"
,disputes in a spirit of conciliation outside the courts.
,"3. However, the major drawback in the existing scheme of"
,organization of the Lok Adalats under the said Act is that the
,system of Lok Adalats is mainly based on compromise or
,settlement between the parties. If the parties do not arrive at any
,"compromise or settlement, the case is either returned to the"
,court of law or the parties are advised to seek remedy in a court
,of law. This causes unnecessary delay in the dispensation of
,justice. If Lok Adalats are given power to decide the cases on
,merits in case parties fails to arrive at any compromise or
,"settlement, this problem can be tackled to a great extent."
,"4. Further, the cases which arise in relation to public utility services"
,"such as Mahanagar Telephone Nigam Limited, Delhi Vidyut"
,"Board, etc., need to be settled urgently so that people get justice"
,without delay even at pre-litigation stage and thus most of the
,petty cases which ought not to go in the regular courts would be
,settled at the pre-litigation stage itself which would result in
,reducing the workload of the regular courts to a great extent.
,"5. It is, therefore, proposed to amend the Legal Services"
,"Authorities Act, 1987 to set up Permanent Lok Adalats for"
,     providing compulsory pre-litigative mechanism for conciliation
,and settlement of cases relating to public utility services.
,
,Features
,The salient features of the new institution of Permanent Lok Adalats
,are as follows:
,1. The Permanent Lok Adalat shall consist of a Chairman who is or
,has been a district judge or additional district judge or has held
,judicial office higher in rank than that of the district judge and two
,other persons having adequate experience in public utility
,services.
,2. The Permanent Lok Adalat shall exercise jurisdiction in respect
,of one or more public utility services such as transport services
,"of passengers or goods by air, road and water; postal, telegraph"
,"or telephone services; supply of power, light or water to the"
,public by any establishment; public conservancy or sanitation;
,services in hospitals or dispensaries; and insurance services.
,3. The pecuniary jurisdiction of the Permanent Lok Adalat shall be
,"up to rupees ten lakhs. However, the Central Government may"
,increase the said pecuniary jurisdiction from time to time.
,4. The Permanent Lok Adalat shall have not jurisdiction in respect
,of any matter relating to an offence not compoundable under any
,law.
,"5. Before the dispute is brought before any court, any party to the"
,dispute may make an application to the Permanent Lok Adalat
,for settlement of the dispute. After an application is made to the
,"Permanent Lok Adalat, no party to that application shall invoke"
,jurisdiction of any court in the same dispute.
,6. Where it appears to the Permanent Lok Adalat that there exist
,"elements of a settlement, which may be acceptable to the"
,"parties, it shall formulate the terms of a possible settlement and"
,submit them to the parties for their observations and in case the
,"parties reach an agreement, the Permanent Lok Adalat shall"
,pass an award in terms thereof. In case parties to the dispute fail
,"to reach an agreement, the Permanent Lok Adalat shall decide"
,the dispute on merits.
,7. Every award made by the Permanent Lok Adalat shall be final
,and binding on all the parties thereto and shall be by a majority
,of the persons constituting the Permanent Lok Adalat.
, FAMILY COURTS
,
,"The Family Courts Act, 1984 was enacted to provide for the"
,establishment of Family Courts with a view to promote conciliation and
,secure speedy settlement of disputes relating to marriage and family
,affairs.
,
,Reasons
,The reasons for the establishment of separate Family Courts are as
,follows:
,"1. Several associations of women, other organizations and"
,"individuals have urged, from time to time, that Family Courts, be"
,"set up for the settlement of family disputes, where emphasis"
,should be laid on conciliation and achieving socially desirable
,results and adherence to rigid rules of procedure and evidence
,should be eliminated.
,2. The Law Commission in its 59th report (1974) had also stressed
,that in dealing with disputes concerning the family the Court
,ought to adopt an approach radically different from the adopted
,in ordinary civil proceedings and that it should make reasonable
,efforts at settlement before the commencement of the trial. The
,Code of Civil Procedure was amended in 1976 to provide for a
,special procedure to be adopted in suits or proceedings relating
,to matters concerning the family.
,"3. However, not much use has been made by the Courts in"
,adopting this conciliatory procedure and the Courts continue to
,deal with family disputes in the same manner as other civil
,matters and the same adversary approach prevails. The need
,"was, therefore, felt, in the public interest, to establish Family"
,Courts for speedy settlement of family disputes.
,"Therefore, the main objectives and reasons for setting up of Family"
,Courts are:10
,(i) To create a Specialized Court which will exclusively deal w
,family matters so that such a court may have the necess
,expertise to deal with these cases expeditiously. Thus exper
,and expeditious disposal are two main factors for establish
,such a court;
,(ii) To institute a mechanism for conciliation of the disputes relatin
,family;
,     (iii) To provide an inexpensive remedy; and
,(iv) To have f lexibility and an informal atmosphere in the conduc
,proceedings.
,
,Features
,"The salient features of the Family Courts Act, 1984 are as follows:"
,1. It provides for the establishment of Family Courts by the State
,Governments in consultation with the High Courts.
,2. It makes it obligatory on the State Governments to set up a
,Family Court in every city or town with a population exceeding
,one million.
,3. It enables the State Governments to set up Family Courts in
,"other areas also, if they deem it necessary."
,4. It exclusively provides within the jurisdiction of the Family Courts
,the matters relating to:
,"(i) matrimonial relief, including nullity of marriage, judicial separat"
,"divorce, restitution of conjugal rights, or declaration as to"
,validity of marriage or as to the matrimonial status of any perso
,(ii) the property of the spouses or of either of them;
,(iii) declaration as to the legitimacy of any person;
,(iv) guardianship of a person or the custody of any minor; and
,"(v) maintenance of wife, children and parents."
,5. It makes it obligatory on the part of the Family Court to
,"endeavour, in the first instance to effect a reconciliation or a"
,settlement between the parties to a family dispute. During this
,"stage, the proceedings will be informal and rigid rules of"
,procedure shall not apply.
,"6. It provides for the association of social welfare agencies,"
,"counsellors, etc., during conciliation stage and also to secure the"
,service of medical and welfare experts.
,7. It provides that the parties to a dispute before a Family Court
,"shall not be entitled, as of right, to be represented by legal"
,"practitioner. However, the Court may, in the interest of justice,"
,seek assistance of a legal expert as amicus curiae.
,8. It simplifies the rules of evidence and procedure so as to enable
,a Family Court to deal effectively with a dispute.
,9. It provides for only one right of appeal which shall lie to the High
,Court.
, GRAM NYAYALAYAS
,
,"The Gram Nyayalayas Act, 2008 has been enacted to provide for the"
,establishment of the Gram Nyayalayas at the grass roots level for the
,purposes of providing access to justice to the citizens at their
,doorsteps and to ensure that opportunities for securing justice are not
,"denied to any citizen due to social, economic or other disabilities."
,
,Reasons
,The reasons for the establishment of Gram Nyayalayas are as follows:
,1. Access to justice by the poor and disadvantaged remains a
,worldwide problem despite diverse approaches and strategies
,that have been formulated and implemented to address it. In our
,"country, Article 39A of the Constitution directs the State to"
,"secure that the operation of the legal system promotes justice,"
,on a basis of equal opportunity and shall provide free legal aid to
,ensure that opportunities for securing justice are not denied to
,any citizen by reason of economic or other disabilities.
,"2. In the recent past, the Government has taken various measures"
,"to strengthen judicial system, inter alia, by simplifying the"
,procedural laws; incorporating various alternative dispute
,"resolution mechanisms such as arbitration, conciliation and"
,"mediation; conducting of Lok Adalats, etc. These measures are"
,required to be strengthened further.
,3. The Law Commission of India in its 114th Report on Gram
,Nyayalaya suggested establishment of Gram Nyayalayas so that
,"speedy, inexpensive and substantial justice could be provided to"
,"the common man. The Gram Nyayalayas Act, 2008 is broadly"
,based on the recommendations of the Law Commission.
,4. Justice to the poor at their door step is a dream of the poor.
,Setting up of Gram Nyayalayas in the rural areas would bring to
,"the people of rural areas speedy, affordable and substantial"
,justice.
,
,Features
,The salient features of the Gram Nyayalayas Act are as follows11 :
,1. The Gram Nyayalaya shall be court of Judicial Magistrate of the
,first class and its presiding officer (Nyayadhikari) shall be
,      appointed by the State Government in consultation with the High
,Court.
,2.   The Gram Nyayalaya shall be established for every Panchayat
,at intermediate level or a group of contiguous Panchayats at
,intermediate level in a district or where there is no Panchayat at
,"intermediate level in any State, for a group of contiguous"
,Panchayats.
,3.   The Nyayadhikaris who will preside over these Gram
,Nyayalayas are strictly judicial officers and will be drawing the
,"same salary, deriving the same powers as First Class"
,Magistrates working under High Courts.
,4.   The Gram Nyayalaya shall be a mobile court and shall exercise
,the powers of both Criminal and Civil Courts.
,5.   The seat of the Gram Nyayalaya will be located at the
,"headquarters of the intermediate Panchayat, they will go to"
,"villages, work there and dispose of the cases."
,"6.   The Gram Nyayalaya shall try criminal cases, civil suits, claims"
,or disputes which are specified in the First Schedule and the
,Second Schedule to the Act.
,7.   The Central as well as the State Governments have been given
,power to amend the First Schedule and the Second Schedule of
,"the Act, as per their respective legislative competence."
,8.   The Gram Nyayalaya shall follow summary procedure in criminal
,trial.
,9.   The Gram Nyayalaya shall exercise the powers of a Civil Court
,with certain modifications and shall follow the special procedure
,as provided in the Act.
,10.    The Gram Nyayalaya shall try to settle the disputes as far as
,possible by bringing about conciliation between the parties and
,"for this purpose, it shall make use of the conciliators to be"
,appointed for this purpose.
,11.   The judgment and order passed by the Gram Nyayalaya shall be
,"deemed to be a decree and to avoid delay in its execution, the"
,Gram Nyayalaya shall follow summary procedure for its
,execution.
,12.    The Gram Nyayalaya shall not be bound by the rules of
,"evidence provided in the Indian Evidence Act, 1872 but shall be"
,guided by the principles of natural justice and subject to any rule
,made by the High Court.
,"13.    Appeal in criminal cases shall lie to the Court of Session, which"
,shall be heard and disposed of within a period of six months
,     from the date of filing of such appeal.
,"14. Appeal in civil cases shall lie to the District Court, which shall be"
,heard and disposed of within a period of six months from the
,date of filing of the appeal.
,15. A person accused of an offence may file an application for plea
,bargaining.
,
,Establishment
,The Central Government has decided to meet the non-recurring
,expenditure on the establishment of these Gram Nyayalayas subject
,to a ceiling of ₹18.00 lakhs out of which ₹10.00 lakhs is for
,"construction of the court, ₹5.00 lakhs for vehicle and ₹3.00 lakhs for"
,office equipment.
,More than 5000 Gram Nyayalayas are expected to be set up under
,the Act for which the Central Government would provide about ₹1400
,crores by way of assistance to the concerned States/Union Territories.
,"Under of the Gram Nyayalayas Act, 2008, it is for the State"
,Governments to establish Gram Nyayalayas in consultation with the
,respective High Courts.
,Majority of States have now set up regular courts at Taluka level.
,"Further, reluctance of police officials and other State functionaries to"
,"invoke jurisdiction of Gram Nyayalayas, lukewarm response of the"
,"Bar, non-availability of notaries and stamp vendors, problem of"
,concurrent jurisdiction of regular courts are other issues indicated by
,the States which are coming in the way of operationalization of the
,Gram Nyayalayas.
,The issues affecting operationalization of the Gram Nyayalayas
,were discussed in the Conference of Chief Justices of High Courts
,"and Chief Ministers of the States in April, 2013. It was decided in the"
,Conference that the State Government and High Court should decide
,"the question of establishment of Gram Nyayalayas wherever feasible,"
,taking into account their local problems. The focus is on setting up
,Gram Nayayalayas in the Talukas where regular courts have not been
,set up.
,
,
,NOTES AND REFERENCES
,1. The 20th Constitutional Amendment Act of 1966 added a
,new Article 233-A which retrospectively validated the
,      appointment of certain district judges as well as the
,judgements delivered by them.
,"2.   In practice, the State Public Service Commission conducts"
,a competitive examination for recruitment to the judicial
,service of the state.
,3.   A subordinate judge is also known as civil judge (senior
,"division), civil judge (class I) and so on. He may also be"
,given the powers of an assistant sessions judge. In such a
,"case, he combines in himself both civil as well as criminal"
,powers like that of a District Judge.
,"4.   A munsiff is also known as civil judge (junior division), civil"
,judge (class-II) and so on.
,"5.   Delhi, Bombay, Calcutta and Madras were formerly called"
,presidency towns.
,"6.   Annual Report 2015–16, Ministry of Law and Justice,"
,"Government of India, pp.91–92."
,7.   P.T. Thomas v. Thomas Job (2005).
,"7a.    India 2010 : A Reference Annual, Publications Division,"
,"Ministry of Information and Broadcasting, Government of"
,"India, p.711."
,8.   P.T. Thomas v. Thomas Job (2005).
,"9.   Law Commission of India, Report No.222 entitled as “Need"
,"for Justicedispensation through ADR etc.,” April 2009,"
,pp.22–23.
,"10.    Annual Report 2015–16, Ministry of Law and Justice,"
,"Government of India, p.85."
,"11.   Press Information Bureau, Government of India, September"
,"29, 2009."
, 37       Special Provisions for Some States
,
,
,
,
,A
,rticles 371 to 371-J in Part XXI of the constitution contain
,"special provisions for twelve states1 viz., Maharashtra, Gujarat,"
,"Nagaland, Assam, Manipur, Andhra Pradesh, Telangana,"
,"Sikkim, Mizoram, Arunachal Pradesh, Goa and Karnataka. The"
,intention behind them is to meet the aspirations of the people of
,backward regions of the states or to protect the cultural and economic
,interests of the tribal people of the states or to deal with the disturbed
,law and order condition in some parts of the states or to protect the
,interests of the local people of the states.
,"Originally, the constitution did not make any special provisions for"
,these states. They have been incorporated by the various subsequent
,amendments made in the context of reorganisation of the states or
,conferment of statehood on the Union Territories.
, PROVISIONS FOR MAHARASHTRA AND GUJARAT
,"Under Article 371, the President is authorised to provide that the"
,Governor of Maharashtra and that of Gujarat would have special
,responsibility for2 :
,1. the establishment of separate development boards for (i)
,"Vidarbha, Marathwada and the rest of Maharashtra, (ii)"
,"Saurashtra, Kutch and the rest of Gujarat;"
,2. making a provision that a report on the working of these boards
,would be placed every year before the State Legislative
,Assembly;
,3. the equitable allocation of funds for developmental expenditure
,over the above-mentioned areas; and
,4. an equitable arrangement providing adequate facilities for
,"technical education and vocational training, and adequate"
,employment opportunities in the state services in respect of the
,abovementioned areas.
, PROVISIONS FOR NAGALAND
,
,Article 371-A makes the following special provisions for Nagaland3 :
,1. The Acts of Parliament relating to the following matters would
,not apply to Nagaland unless the State Legislative Assembly so
,decides:
,(i) religious or social practices of the Nagas;
,(ii) Naga customary law and procedure;
,(iii) administration of civil and criminal justice involving decisi
,according to Naga customary law; and
,(iv) ownership and transfer of land and its resources.
,2. The Governor of Nagaland shall have special responsibility for
,law and order in the state so long as internal disturbances
,caused by the hostile Nagas continue. In the discharge of this
,"responsibility, the Governor, after consulting the Council of"
,"Ministers, exercises his individual judgement and his decision is"
,final4. This special responsibility of the Governor shall cease
,when the President so directs.
,3. The Governor has to ensure that the money provided by the
,Central Government for any specific purpose is included in the
,demand for a grant relating to that purpose and not in any other
,demand moved in the State Legislative Assembly.
,4. A regional council consisting of 35 members should be
,established for the Tuensang district of the state. The Governor
,"should make rules for the composition of the council, manner of"
,"choosing its members5 , their qualifications, term, salaries and"
,allowances; the procedure and conduct of business of the
,council; the appointment of officers and staff of the council and
,their service conditions; and any other matter relating to the
,constitution and proper functioning of the council.
,5. For a period of ten years from the formation of Nagaland or for
,such further period as the Governor may specify on the
,"recommendation of the regional council, the following provisions"
,would be operative for the Tuensang district:
,(i) The administration of the Tuensang district shall be carried on
,the Governor.
,(ii) The Governor shall in his discretion arrange for equita
,distribution of money provided by the Centre between Tuens
,district and the rest of Nagaland.
, (iii) Any Act of Nagaland Legislature shall not apply to Tuens
,district unless the Governor so directs on the recommendatio
,the regional council.
,"(iv) The Governor can make Regulations for the peace, progress"
,good government of the Tuensang district. Any such Regula
,may repeal or amend an Act of Parliament or any other
,applicable to that district.
,(v) There shall be a Minister for Tuensang affairs in the S
,Council of Ministers. He is to be appointed from amongst
,members representing Tuensang district in the Nagal
,Legislative Assembly.
,(vi) The final decision on all matters relating to Tuensang district s
,be made by the Governor in his discretion.
,(vii) Members in the Nagaland Legislative Assembly from
,Tuensang district are not elected directly by the people but by
,regional council.
, PROVISIONS FOR ASSAM AND MANIPUR
,
,Assam
,"Under Article 371-B6 , the President is empowered to provide for the"
,creation of a committee of the Assam Legislative Assembly consisting
,of the members elected from the Tribal Areas of the state and such
,other members as he may specify7 .
,
,Manipur
,Article 371-C makes the following special provisions for Manipur8 :
,1. The President is authorized to provide for the creation of a
,committee of the Manipur Legislative Assembly consisting of the
,members elected from the Hill Areas of the state9 .
,2. The President can also direct that the Governor shall have
,special responsibility to secure the proper functioning of that
,committee.
,3. The Governor should submit an annual report to the President
,regarding the administration of the Hill Areas.
,4. The Central Government can give directions to the State
,Government as to the administration of the Hill Areas.
, PROVISIONS FOR ANDHRA PRADESH OR TELANGANA
,Articles 371-D and 371-E contain the special provisions for Andhra
,"Pradesh10. In 2014, Article 371-D has been extended to the state of"
,Telangana by the Andhra Pradesh Re-organisation Act of 2014. Under
,"Article 371-D, the following are mentioned:"
,1. The President is empowered to provide for equitable
,opportunities and facilities for the people belonging to different
,parts of the state in the matter of public employment and
,education and different provisions can be made for various parts
,of the state.
,"2. For the above purpose, the President may require the State"
,Government to organise civil posts in local cadres for different
,parts of the state and provide for direct recruitment to posts in
,any local cadre. He may specify parts of the state which shall be
,regarded as the local area for admission to any educational
,institution. He may also specify the extent and manner of
,preference or reservation given in the matter of direct
,recruitment to posts in any such cadre or admission to any such
,educational institution.
,3. The President may provide for the establishment of an
,Administrative Tribunal in the state to deal with certain disputes
,"and grievances relating to appointment, allotment or promotion"
,to civil posts in the state11. The tribunal is to function outside the
,purview of the state High Court. No court (other than the
,Supreme Court) is to exercise any jurisdiction in respect of any
,matter subject to the jurisdiction of the tribunal. The President
,may abolish the tribunal when he is satisfied that its continued
,existence is not necessary.
,Article 371-E empowers the Parliament to provide for the
,establishment of a Central University in the state of Andhra Pradesh.
, PROVISIONS FOR SIKKIM
,
,The 36th Constitutional Amendment Act of 1975 made Sikkim a full-
,fledged state of the Indian Union. It included a new Article 371-F
,containing special provisions with respect to Sikkim. These are as
,follows:
,1. The Sikkim Legislative Assembly is to consist of not less than 30
,members.
,2. One seat is allotted to Sikkim in the Lok Sabha and Sikkim forms
,one Parliamentary constituency.
,3. For the purpose of protecting the rights and interests of the
,"different sections of the Sikkim population, the Parliament is"
,empowered to provide for the:
,(i) number of seats in the Sikkim Legislative Assembly which may
,filled by candidates belonging to such sections; and
,(ii) delimitation of the Assembly constituencies from which candida
,belonging to such sections alone may stand for election to
,Assembly.
,4. The Governor shall have special responsibility for peace and for
,an equitable arrangement for ensuring the social and economic
,advancement of the different sections of the Sikkim population.
,"In the discharge of this responsibility, the Governor shall act in"
,"his discretion, subject to the directions issued by the President."
,5. The President can extend (with restrictions or modifications) to
,Sikkim any law which is in force in a state of the Indian Union.
, PROVISIONS FOR MIZORAM
,
,Article 371-G specifies the following special provisions for Mizoram12 :
,1. The Acts of Parliament relating to the following matters would
,not apply to Mizoram unless the State Legislative Assembly so
,decides:
,(i) religious or social practices of the Mizos;
,(ii) Mizo customary law and procedure;
,(iii) administration of civil and criminal justice involving decisi
,according to Mizo customary law; and
,(iv) ownership and transfer of land.
,2. The Mizoram Legislative Assembly is to consist of not less than
,40 members.
, PROVISIONS FOR ARUNACHAL PRADESH AND GOA
,
,Arunachal Pradesh
,"Under Article 371-H, the following special provisions are made for"
,Arunachal Pradesh13 :
,1. The Governor of Arunachal Pradesh shall have special
,responsibility for law and order in the state. In the discharge of
,"this responsibility, the Governor, after consulting the Council of"
,"Ministers, exercises his individual judgement and his decision is"
,final. This special responsibility of the Governor shall cease
,when the President so directs.
,2. The Arunachal Pradesh Legislative Assembly is to consist of not
,less than 30 members.
,
,Goa
,Article 371-I provides that the Goa Legislative Assembly is to consist
,of not less than 30 members14 .
, PROVISIONS FOR KARNATAKA
,
,"Under Article 371-J, the President is empowered to provide that the"
,Governor of Karnataka would have special responsibility for
,1. The establishment of a separate development board for
,Hyderabad-Karnataka region15
,2. Making a provision that a report on the working of the board
,would be placed every year before the State Legislative
,Assembly
,3. The equitable allocation of funds for developmental expenditure
,over the region
,4. The reservation of seats in educational and vocational training
,institutions in the region for students who belong to the region
,5. The reservation in state government posts in the region for
,persons who belong to the region
,Article 371-J (which provided for special provisions for the
,Hyderabad-Karnataka region of the state of Karnataka) was inserted
,in the Constitution by the 98th Constitutional Amendment Act of 2012.
,The special provisions aim to establish an institutional mechanism for
,equitable allocation of funds to meet the development needs over the
,"region, as well as to enhance human resources and promote"
,employment from the region by providing for local cadres in service
,and reservation in educational and vocational training institutions.
,"In 2010, the Legislative Assembly as well as the Legislative Council"
,of Karnataka passed separate resolutions seeking special provisions
,for the Hyderabad-Karnataka region of the state of Karnataka. The
,government of Karnataka also endorsed the need for special
,provisions for the region. The resolutions sought to accelerate
,development of the most backward region of the state and promote
,inclusive growth with a view to reducing inter-district and inter-regional
,disparities in the state.
,
,Table 37.1 Articles Related to Special Provisions for some States at a
,Glance
,Article No.     Subject-matter
,371.     Special provision with respect to the states of
,Maharashtra and Gujarat
,371A.    Special provision with respect to the state of
,            Nagaland
,371B.    Special provision with respect to the state of Assam
,371C.    Special provision with respect to the state of Manipur
,371D.    Special provisions with respect to the state of Andhra
,Pradesh or the state of Telangana
,371E.    Establishment of Central University in Andhra
,Pradesh
,371F.    Special provisions with respect to the state of Sikkim
,371G.    Special provision with respect to the state of Mizoram
,371H.    Special provision with respect to the state of
,Arunachal Pradesh
,371-I.   Special provision with respect to the state of Goa
,371J.    Special provisions with respect to the state of
,Karnataka
,
,
,NOTES AND REFERENCES
,"1. Part XXI is entitled as ‘Temporary, Transitional and Special"
,Provisions’.
,2. This Article was amended by the 7th Constitutional
,Amendment Act of 1956 and the Bombay Reorganisation
,Act of 1960. Andhra Pradesh was taken out of this Article by
,the 32nd Constitutional Amendment Act of 1973 and
,provided for separately in two new Articles 371-D and 371-
,E.
,3. This Article was added by the 13th Constitutional
,Amendment Act of 1962.
,4. The validity of anything done by the Governor shall not be
,called in question on the ground that he ought or ought not
,to have acted in the exercise of his individual judgement.
,5. The Deputy Commissioner of the Tuensang district shall be
,the ex-officio Chairman of the regional council and the Vice-
,Chairman shall be elected by the members of the council
,from amongst themselves.
,6. This Article was added by the 22nd Constitutional
,Amendment Act of 1969.
, 7. The Tribal Areas of Assam are specified in the Sixth
,Schedule of the Constitution. They are North Cachar Hills
,"District, Karbi Anglong District and Bodoland Territorial"
,Areas District.
,8. This Article was added by the 27th Constitutional
,Amendment Act of 1971.
,"9. In this Article, the expression ‘Hill Areas’ means such areas"
,"as the President may, by order, declare to be Hill Areas."
,10. Both the Articles were added by the 32nd Constitutional
,Amendment Act of 1973.
,11. The tribunal has been set up by the Andhra Pradesh
,"Administrative Tribunal Order, 1975."
,12. This Article was added by the 53rd Constitutional
,Amendment Act of 1986.
,13. This Article was added by the 55th Constitutional
,Amendment Act of 1986.
,14. This Article was added by the 56th Constitutional
,Amendment Act of 1987.
,15. The Hyderabad - Karnataka region includes the six
,"backward districts of Northern Karnataka, viz., Gulbarga,"
,"Bidar, Raichur, Koppal, Yadgir and Bellary."
,                    PART-V
,LOCAL GOVERNMENT
,
,38. Panchayati Raj
,39. Municipalities
, 38      Panchayati Raj
,
,
,
,
,T
,he term Panchayati Raj in India signifies the system of rural
,local selfgovernment. It has been established in all the states of
,India by the Acts of the state legislatures to build democracy at
,the grass root level1. It is entrusted with rural development. It was
,constitutionalised through the 73rd Constitutional Amendment Act of
,1992
, EVOLUTION OF PANCHAYATI RAJ
,
,Balwant Rai Mehta Committee
,"In January 1957, the Government of India appointed a committee to"
,examine the working of the Community Development Programme
,(1952) and the National Extension Service (1953) and to suggest
,measures for their better working. The chairman of this committee was
,Balwant Rai G Mehta. The committee submitted its report in
,November 1957 and recommended the establishment of the scheme
,"of ‘democratic decentralisation’, which ultimately came to be known as"
,Panchayati Raj. The specific recommendations made by it are:
,1. Establishment of a three-tier panchayati raj system–gram
,"panchayat at the village level, panchayat samiti at the block level"
,and zila parishad at the district level. These tiers should be
,organically linked through a device of indirect elections.
,2. The village panchayat should be constituted with directly elected
,"representatives, whereas the panchayat samiti and zila parishad"
,should be constituted with indirectly elected members.
,3. All planning and development activities should be entrusted to
,these bodies.
,4. The panchayat samiti should be the executive body while the
,"zila parishad should be the advisory, coordinating and"
,supervisory body.
,5. The district collector should be the chairman of the zila parishad.
,6. There should be a genuine transfer of power and responsibility
,to these democratic bodies.
,7. Adequate resources should be transferred to these bodies to
,enable them to discharge their functions and fulfil their
,responsibilities.
,8. A system should be evolved to effect further devolution of
,authority in future.
,These recommendations of the committee were accepted by the
,National Development Council in January 1958. The council did not
,insist on a single rigid pattern and left it to the states to evolve their
,own patterns suitable to local conditions. But the basic principles and
,broad fundamentals should be identical throughout the country.
,Rajasthan was the first state to establish Panchayati Raj. The
,"scheme was inaugurated by the prime minister on October 2, 1959, in"
,"Nagaur district. Rajasthan was followed by Andhra Pradesh, which"
,"also adopted the system in 1959. Thereafter, most of the states"
,adopted the system.
,Though most of the states created panchayati raj institutions by mid
,"1960s, there were differences from one state to another with regard to"
,"the number of tiers, relative position of samiti and parishad, their"
,"tenure, composition, functions, finances and so on. For example,"
,Rajasthan adopted the three-tier system while Tamil Nadu adopted the
,"two-tier system. West Bengal, on the other hand, adopted the four-tier"
,"system. Further, in the Rajasthan-Andhra Pradesh pattern, panchayat"
,samiti was powerful as the block was the unit of planning and
,"development, while in Maharashtra-Gujarat pattern, zila parishad was"
,powerful as the district was the unit of planning and development.
,"Some states also established nyaya panchayats, that is, judicial"
,panchayats to try petty civil and criminal cases.
,
,Study Teams and Committees
,"Since 1960, many study teams, committees and working groups have"
,been appointed to examine the various aspects of functioning of
,Panchayati Raj system. They are mentioned below in Table 38.1.
,
,Table 38.1 Study Teams and Committees on Panchayati Raj
,Sl.     Year    Name of the study Team /           Chairman
,No.             Committee
,1.    1960    Committee on Rationalisation of    V.R. Rao
,Panchayat Statistics
,2.    1961    Working Group on Panchayats        S.D. Mishra
,and Cooperatives
,3.    1961    Study Team on Panchayati Raj       V. Iswaran
,Administration
,4.    1962    Study Team on Nyaya                G.R. Rajgopal
,Panchayats
,5.    1963    Study Team on the Position of      R.R. Diwakar
,Gram Sabha in Panchayati Raj
,Movement
,6.    1963    Study Group on Budgeting and       M. Rama
,Accounting Procedure of            Krishnayya
,                 Panchayati Raj Institutions
,7.   1963     Study Team on Panchayati Raj          K. Santhanam
,Finances
,8.   1965     Committee on Panchayati Raj           K. Santhanam
,Elections
,9.   1965     Study Team on the Audit and           R.K. Khanna
,Accounts of Panchayati Raj
,Bodies
,10.   1966     Committee on Panchayati Raj           G. Ramachandran
,Training Centres
,11.   1969     Study Team on Involvement of       V. Ramanathan
,Community Development Agency
,and Panchayati Raj Institutions in
,the Implementation of Basic Land
,Reform Measures
,12.   1972     Working Group for Formulation of N.
,Fifth Five Year Plan on          Ramakrishnayya
,Community Development and
,Panchayati Raj
,13.   1976     Committee on Community         Smt. Daya
,Development and Panchayati Raj Choubey
,
,Ashok Mehta Committee
,"In December 1977, the Janata Government appointed a committee on"
,panchayati raj institutions under the chairmanship of Ashok Mehta. It
,submitted its report in August 1978 and made 132 recommendations
,to revive and strengthen the declining panchayati raj system in the
,country. Its main recommendations were:
,1. The three-tier system of panchayati raj should be replaced by
,"the two-tier system, that is, zila parishad at the district level, and"
,"below it, the mandal panchayat consisting of a group of villages"
,"with a total population of 15,000 to 20,000."
,2. A district should be the first point for decentralisation under
,popular supervision below the state level.
,3. Zila parishad should be the executive body and made
,responsible for planning at the district level.
,   4. There should be an official participation of political parties at all
,levels of panchayat elections.
,5. The panchayati raj institutions should have compulsory powers
,of taxation to mobilise their own financial resources.
,6. There should be a regular social audit by a district level agency
,and by a committee of legislators to check whether the funds
,allotted for the vulnerable social and economic groups are
,actually spent on them.
,7. The state government should not supersede the panchayati raj
,"institutions. In case of an imperative supersession, elections"
,should be held within six months from the date of supersession.
,8. The nyaya panchayats should be kept as separate bodies from
,that of development panchayats. They should be presided over
,by a qualified judge.
,9. The chief electoral officer of a state in consultation with the chief
,election commissioner should organise and conduct the
,panchayati raj elections.
,10. Development functions should be transferred to the zila parishad
,and all development staff should work under its control and
,supervision.
,11. The voluntary agencies should play an important role in
,mobilising the support of the people for panchayati raj.
,12. A minister for panchayati raj should be appointed in the state
,council of ministers to look after the affairs of the panchayati raj
,institutions.
,13. Seats for SCs and STs should be reserved on the basis of their
,population.
,14. A constitutional recognition should be accorded to the
,Panchayati Raj institutions. This would give them the requisite
,status (sanctity and stature) and an assurance of continuous
,functioning.
,Due to the collapse of the Janata Government before the
,"completion of its term, no action could be taken on the"
,recommendations of the Ashok Mehta Committee at the central level.
,"However, the three states of Karnataka, West Bengal and Andhra"
,"Pradesh took steps to revitalise the panchayati raj, keeping in view"
,some of the recommendations of the Ashok Mehta Committee.
,
,G.V.K. Rao Committee
,The Committee to review the existing Administrative Arrangements for
,Rural Development and Poverty Alleviation Programmes under the
,chairmanship of G.V.K. Rao was appointed by the Planning
,Commission in 1985. The Committee came to conclusion that the
,developmental process was gradually bureaucratised and divorced
,from the Panchayati Raj. This phenomena of bureaucratisation of
,development administration as against the democratisation weakened
,the Panchayati Raj institutions resulting in what is aptly called as
,"‘grass without roots’. Hence, the Committee made the following"
,recommendations to strengthen and revitalise the Panchayati Raj
,system:
,"(i) The district level body, that is, the Zila Parishad should be of"
,pivotal importance in the scheme of democratic decentralisation.
,It stated that “the district is the proper unit for planning and
,development and the Zila Parishad should become the principal
,body for management of all development programmes which can
,be handled at that level.”
,(ii) The Panchayati Raj institutions at the district and lower levels
,"should be assigned an important role with respect to planning,"
,implementation and monitoring of rural development programmes.
,(iii) Some of the planning functions at the state level should be
,transferred to the district level planning units for effective
,decentralized district planning.
,(iv) A post of District Development Commissioner should be created.
,He should act as the chief executive officer of the Zila Parishad
,and should be in charge of all the development departments at
,the district level.
,(v) Elections to the Panchayati Raj institutions should be held
,regularly. It found that elections became overdue for one or more
,tiers in 11 states.
,"Thus the committee, in its scheme of decentralised system of field"
,"administration, assigned a leading role to the Panchayati Raj in local"
,planning and development. It is in this respect that the
,recommendation of the G.V.K. Rao Committee Report (1986) differed
,from those of the Dantwala Committee Report on Block-Level
,Planning (1978) and the Hanumantha Rao Committee Report on
,District Planning (1984). Both the committees have suggested that the
,basic decentralised planning function should be done at the district
,level. The Hanumantha Rao Committee advocated separate district
,planning bodies under either the District Collector or a minister. In both
,"the models, the Collector should play a significant role in the"
,decentralised planning though the Committee stated that Panchayati
,Raj institutions would also be associated with this process (of
,decentralised planning). The committee recommended that the
,"Collector should be the coordinator, at the district level, of all"
,"developmental and planning activities. Thus the, Hanumantha Rao"
,Committee differed in this respect from those of Balwantray Mehta
,"Committee, the Administrative Reforms Commission of India, the"
,Ashok Mehta Committee and finally the G.V.K. Rao Committee which
,recommended reduction in the developmental role of the District
,Collector and which assigned a major role to the Panchayati Raj in
,development administration.
,
,L M Singhvi Committee
,"In 1986, Rajiv Gandhi government appointed a committee to prepare"
,a concept paper on ‘Revitalisation of Panchayati Raj Institutions for
,Democracy and Development’ under the chairmanship of L.M.
,Singhvi. It made the following recommendations.
,(i) The Panchayati Raj institutions should be constitutionally
,"recognised, protected and preserved. For this purpose, a new"
,chapter should be added in the Constitution of India. This will
,make their identity and integrity reasonably and substantially
,inviolate. It also suggested constitutional provisions to ensure
,"regular, free and fair elections to the Panchayati Raj bodies."
,(ii) Nyaya Panchayats should be established for a cluster of villages.
,(iii) The villages should be reorganised to make Gram Panchayats
,more viable. It also emphasised the importance of the Gram
,Sabha and called it as the embodiment of direct democracy.
,(iv) The Village Panchayats should have more financial resources.
,(v) The judicial tribunals should be established in each state to
,adjudicate controversies about election to the Panchayati Raj
,"institutions, their dissolution and other matters related to their"
,functioning.
,
,Thungon Committee
,"In 1988, a sub-committee of the Consultative Committee of Parliament"
,was constituted under the chairmanship of P.K. Thungon to examine
,the political and administrative structure in the district for the purpose
,of district planning. This committee suggested for the strengthening of
,the Panchayati Raj system. It made the following recommendations:
,  1. The Panchayati Raj bodies should be constitutionally
,recognized.
,2. A three-tier system of Panchayati Raj with panchayats at the
,"village, block and district levels."
,3. Zilla Parishad should be the pivot of the Panchayati Raj system.
,It should act as the planning and development agency in the
,district.
,4. The Panchayati Raj bodies should have a fixed tenure of five
,years.
,5. The maximum period of super session of a body should be six
,months.
,6. A planning and co-ordination committee should be set-up at the
,state level under the chairmanship of the minister for planning.
,The presidents of Zilla Parishads should be its members.
,7. A detailed list of subjects for Panchayati Raj should be prepared
,and incorporated in the Constitution.
,8. Reservation of seats in all the three-tiers should be on the basis
,of population. There should also be reservation for women.
,9. A state finance commission should be set-up in each state. It
,would lay down the criteria and guidelines for the devolution of
,finances to the Panchayati Raj institutions.
,10. The district collector should be the chief executive officer of the
,Zilla Parishad.
,
,Gadgil Committee
,The Committee on Policy and Programmes was constituted in 1988 by
,the Congress party under the chairmanship of V.N. Gadgil. This
,committee was asked to consider the question of “how best
,"Panchayati Raj institutions could be made effective”. In this context,"
,the committee made the following recommendations:
,1. A constitutional status should be bestowed on the Panchayati
,Raj institutions.
,2. A three-tier system of Panchayati Raj with panchayats at the
,"village, block and district levels."
,3. The term of Panchayati Raj institutions should be fixed at five
,years.
,4. The members of the Panchayats at all the three levels should be
,directly elected.
,"5. Reservation for SCs, STs and women."
,  6. The Panchayati Raj bodies should have the responsibility of
,preparation and implementation of plans for socioeconomic
,"development. For this purpose, a list of subjects should be"
,specified in the constitution.
,"7. The Panchayat Raj bodies should be empowered to levy, collect"
,and appropriate taxes and duties.
,8. Establishment of a State Finance Commission for the allocation
,of finances to the Panchayats.
,9. Establishment of a State Election Commission for the
,conduction of elections to the panchayats.
,The above recommendations of the Gadgil Committee became the
,basis for drafting an amendment bill aimed at conferring the
,constitutional status and protection to the Panchayati Raj institutions.
,
,Constitutionalisation
,
,Rajiv Gandhi Government
,The Rajiv Gandhi Government introduced the 64th Constitutional
,Amendment Bill in the Lok Sabha in July 1989 to constitutionalise
,panchayati raj institutions and make them more powerful and broad
,"based. Although, the Lok Sabha passed the bill in August 1989, it was"
,not approved by the Rajya Sabha. The bill was vehemently opposed
,by the Opposition on the ground that it sought to strengthen
,centralisation in the federal system.
,
,V.P. Singh Government
,"The National Front Government, soon after assuming office in"
,"November 1989 under the Prime Ministership of V.P. Singh,"
,announced that it would take steps to strengthen the panchayati raj
,"institutions. In June 1990, a two-day conference of the state chief"
,ministers under the chairmanship of V.P. Singh was held to discuss
,the issues relating to the strengthening of the panchayati raj bodies.
,The conference approved the proposals for the introduction of a fresh
,"constitutional amendment bill. Consequently, a constitutional"
,amendment bill was introduced in the Lok Sabha in September 1990.
,"However, the fall of the government resulted in the lapse of the bill."
,
,Narasimha Rao Government
,The Congress Government under the prime ministership of P.V.
,Narasimha Rao once again considered the matter of the
,constitutionalisation of panchayati raj bodies. It drastically modified the
,proposals in this regard to delete the controversial aspects and
,introduced a constitutional amendment bill in the Lok Sabha in
,"September, 1991. This bill finally emerged as the 73rd Constitutional"
,"Amendment Act, 1992 and came into force on 24 April, 19932 ."
, 73RD AMENDMENT ACT OF 1992
,
,Significance of the Act
,This act has added a new Part-IX to the Constitution of India. This part
,is entitled as ‘The Panchayats’ and consists of provisions from Articles
,"243 to 243 O. In addition, the act has also added a new Eleventh"
,Schedule to the Constitution. This schedule contains 29 functional
,items of the panchayats. It deals with Article 243-G.
,The act has given a practical shape to Article 40 of the Constitution
,"which says that, “The State shall take steps to organise village"
,panchayats and endow them with such powers and authority as may
,be necessary to enable them to function as units of self-government.”
,This article forms a part of the Directive Principles of State Policy.
,The act gives a constitutional status to the panchayati raj
,institutions. It has brought them under the purview of the justiciable
,"part of the Constitution. In other words, the state governments are"
,under constitutional obligation to adopt the new panchayati raj system
,"in accordance with the provisions of the act. Consequently, neither the"
,formation of panchayats nor the holding of elections at regular
,intervals depend on the will of the state government any more.
,The provisions of the act can be grouped into two categories–
,compulsory and voluntary. The compulsory (mandatory or obligatory)
,provisions of the act have to be included in the state laws creating the
,"new panchayati raj system. The voluntary provisions, on the other"
,"hand, may be included at the discretion of the states. Thus the"
,voluntary provisions of the act ensures the right of the states to take
,"local factors like geographical, politico-administrative and others, into"
,consideration while adopting the new panchayati raj system.
,The act is a significant landmark in the evolution of grassroot
,democratic institutions in the country. It transfers the representative
,democracy into participatory democracy. It is a revolutionary concept
,to build democracy at the grassroot level in the country.
,
,Salient Features
,The salient features of the act are:
,
,Gram Sabha
,The act provides for a Gram Sabha as the foundation of the
,panchayati raj system. It is a body consisting of persons registered in
,the electoral rolls of a village comprised within the area of Panchayat
,"at the village level. Thus, it is a village assembly consisting of all the"
,registered voters in the area of a panchayat. It may exercise such
,powers and perform such functions at the village level as the
,legislature of a state determines.
,
,Three-Tier System
,The act provides for a three-tier system of panchayati raj in every
,"state, that is, panchayats at the village, intermediate, and district"
,"levels3. Thus, the act brings about uniformity in the structure of pan-"
,"chayati raj throughout the country. However, a state having a"
,population not exceeding 20 lakh may not constitute panchayats at
,the intermediate level.
,
,Election of Members and Chairpersons
,"All the members of panchayats at the village, intermediate and district"
,"levels shall be elected directly by the people. Further, the chairperson"
,of panchayats at the intermediate and district levels shall be elected
,indi-rectly–by and from amongst the elected members thereof.
,"However, the chairperson of a panchayat at the village level shall be"
,elected in such manner as the state legislature determines.
,The chairperson of a panchayat and other members of a panchayat
,elected directly or indirectly shall have the right to vote in the meetings
,of the panchayats.
,
,Reservation of Seats
,The act provides for the reservation of seats for scheduled castes and
,"scheduled tribes in every panchayat (i.e., at all the three levels) in"
,proportion of their population to the total population in the panchayat
,"area. Further, the state legislature shall provide for the reservation of"
,offices of chairperson in the panchayat at the village or any other level
,for the SCs and STs.
,The act provides for the reservation of not less than one-third of the
,total number of seats for women (including the number of seats
,"reserved for women belonging the SCs and STs). Further, not less"
,than one-third of the total number of offices of chairpersons in the
,panchayats at each level shall be reserved for women.
,The act also authorises the legislature of a state to make any
,provision for reservation of seats in any panchayat or offices of
,chairperson in the panchayat at any level in favour of backward
,classes.
,The reservation of seats as well as the reservation of offices of
,chairpersons in the panchayats for the scheduled castes and
,scheduled tribes shall cease to have effect after the expiration of the
,"period specified in Article 334 (which is presently seventy years, that"
,"is, till 2020)."
,It must be noted here that the above provision relating to the
,reservation of seats in panchayats (both members and chairpersons)
,for the scheduled castes is not applicable to the state of Arunachal
,Pradesh. This is because the state is inhabited fully by indigenous
,tribal people and there are no scheduled castes. This provision was
,added later by the 83rd Constitutional Amendment Act of 2000.
,
,Duration of Panchayats
,The act provides for a five-year term of office to the panchayat at
,"every level. However, it can be dissolved before the completion of its"
,"term. Further, fresh elections to constitute a panchayat shall be"
,completed (a) before the expiry of its duration of five years; or (b) in
,"case of dissolution, before the expiry of a period of six months from"
,the date of its dissolution.
,"But, where the remainder of the period (for which the dissolved"
,"panchayat would have continued) is less than six months, it shall not"
,be necessary to hold any election for constituting the new panchayat
,for such period.
,"Moreover, a panchayat constituted upon the dissolution of a"
,panchayat before the expiration of its duration shall continue only for
,the remainder of the period for which the dissolved panchayat would
,"have continued had it not been so dissolved. In other words, a"
,panchayat reconstituted after premature dissolution does not enjoy
,the full period of five years but remains in office only for the remainder
,of the period.
,
,Disqualifications
,A person shall be disqualified for being chosen as or for being a
,"member of panchayat if he is so disqualified, (a) under any law for the"
,time being in force for the purpose of elections to the legislature of the
,"state concerned, or (b) under any law made by the state legislature."
,"However, no person shall be disqualified on the ground that he is less"
,"than 25 years of age if he has attained the age of 21 years. Further, all"
,questions of disqualifications shall be referred to such authority as the
,state legislature determines.
,
,State Election Commission
,"The superintendence, direction and control of the preparation of"
,electoral rolls and the conduct of all elections to the panchayats shall
,be vested in the state election commission. It consists of a state
,election commissioner to be appointed by the governor. His conditions
,of service and tenure of office shall also be determined by the
,governor. He shall not be removed from the office except in the
,manner and on the grounds prescribed for the removal of a judge of
,the state high court4. His conditions of service shall not be varied to
,his disadvantage after his appointment.
,The state legislature may make provision with respect to all matters
,relating to elections to the panchayats.
,
,Powers and Functions
,The state legislature may endow the Panchayats with such powers
,and authority as may be necessary to enable them to function as
,institutions of self-government. Such a scheme may contain provisions
,for the devolution of powers and responsibilities upon Panchayats at
,the appropriate level with respect to (a) the preparation of plans for
,economic development and social justice; (b) the implementation of
,schemes for economic development and social justice as may be
,"entrusted to them, including those in relation to the 29 matters listed in"
,the Eleventh Schedule.
,
,Finances
,"The state legislature may (a) authorise a panchayat to levy, collect"
,"and appropriate taxes, duties, tolls and fees; (b) assign to a panchayat"
,"taxes, duties, tolls and fees levied and collected by the state"
,government; (c) provide for making grants-in-aid to the panchayats
,from the consolidated fund of the state; and (d) provide for constitution
,of funds for crediting all moneys of the panchayats.
,
,Finance Commission
,"The governor of a state shall, after every five years, constitute a"
,finance commission to review the financial position of the panchayats.
,It shall make the following recommendations to the Governor:
,1. The principles that should govern:
,      (a) The distribution between the state and the panchayats of the
,"net proceeds of the taxes, duties, tolls and fees levied by the"
,state and allocation of shares amongst the panchay-ats at all
,levels.
,"(b) The determination of taxes, duties, tolls and fees that may"
,be assigned to the panchayats.
,(c) The grants-in-aid to the panchayats from the consolidated
,fund of the state.
,2. The measures needed to improve the financial position of the
,panchayats.
,3. Any other matter referred to it by the governor in the interests of
,sound finance of the panchayats.
,The state legislature may provide for the composition of the
,"commission, the required qualifications of its members and the"
,manner of their selection.
,The governor shall place the recommendations of the commission
,along with the action taken report before the state legislature.
,The Central Finance Commission shall also suggest the measures
,needed to augment the consolidated fund of a state to supplement the
,resources of the panchayats in the states (on the basis of the
,recommendations made by the finance commission of the state).
,
,Audit of Accounts
,The state legislature may make provisions with respect to the
,maintenance of accounts by the panchayats and the auditing of such
,accounts.
,
,Application to Union Territories
,"The provisions of this Part are applicable to the Union territories. But,"
,the President may direct that they would apply to a Union territory
,subject to such exceptions and modifications as he may specify.
,
,Exempted States and Areas
,"The act does not apply to the states of Nagaland, Meghalaya and"
,"Mizoram and certain other areas. These areas include, (a) the"
,scheduled areas and the tribal areas in the states5 ; (b) the hill areas
,of Manipur for which district councils exist; and (c) Darjeeling district of
,West Bengal for which Darjeeling Gorkha Hill Council exists.
,"However, the Parliament may extend the provisions of this Part to"
,the scheduled areas and tribal areas subject to such exceptions and
,"modifications as it may specify. Under this provision, the Parliament"
,has enacted the “Provisions of the Panchayats (Extension to the
,"Scheduled Areas Act”, 1996, popularly known as the PESA Act or the"
,Extension Act.
,
,Continuance of Existing Laws and Panchayats
,All the state laws relating to panchayats shall continue to be in force
,until the expiry of one year from the commencement of this act. In
,"other words, the states have to adopt the new panchayati raj system"
,based on this act within the maximum period of one year from 24
,"April, 1993, which was the date of the commencement of this act."
,"However, all the panchayats existing immediately before the"
,"commencement of act shall continue till the expiry of their term, unless"
,dissolved by the state legislature sooner.
,"Consequently, majority of states passed the panchayati raj acts in"
,1993 and 1994 to adopt the new system in accordance with the 73rd
,Constitutional Amendment Act of 1992.
,
,Bar to Interference by Courts in Electoral Matters
,The act bars the interference by courts in the electoral matters of
,panchayats. It declares that the validity of any law relating to the
,delimitation of constituencies or the allotment of seats to such
,constituencies cannot be questioned in any court. It further lays down
,that no election to any panchayat is to be questioned except by an
,election petition presented to such authority and in such manner as
,provided by the state legislature.
,
,Eleventh Schedule
,It contains the following 29 functional items placed within the purview
,of panchayats:
,"1. Agriculture, including agricultural extension"
,"2. Land improvement, implementation of land reforms, land"
,consolidation and soil conservation
,"3. Minor irrigation, water management and watershed development"
,"4. Animal husbandry, dairying and poultry"
,5. Fisheries
,6. Social forestry and farm forestry
,7. Minor forest produce
,"8. Small-scale industries, including food processing industries"
,"9. Khadi, village and cottage industries"
,10. Rural housing
,11. Drinking water
,12. Fuel and fodder
,"13. Roads, culverts, bridges, ferries, waterways and other means of"
,communication
,"14. Rural electrification, including distribution of electricity"
,15. Non-conventional energy sources
,16. Poverty alleviation programme
,"17. Education, including primary and secondary schools"
,18. Technical training and vocational education
,19. Adult and non-formal education
,20. Libraries
,21. Cultural activities
,22. Markets and fairs
,"23. Health and sanitation including hospitals, primary health centres"
,and dispensaries
,24. Family welfare
,25. Women and child development
,"26. Social welfare, including welfare of the handicapped and"
,mentally retarded
,"27. Welfare of the weaker sections, and in particular, of the"
,scheduled castes and the scheduled tribes
,28. Public distribution system
,29. Maintenance of community assets.
, COMPULSORY AND VOLUNTARY PROVISIONS
,
,"Now, we will identify separately the compulsory (obligatory or"
,mandatory) and voluntary (discretionary or optional) provisions
,(features) of the 73rd Constitutional Amendment Act (1992) or the Part
,IX of the Constitution:
,
,A. Compulsory Provisions
,1. Organisation of Gram Sabha in a village or group of villages.
,"2. Establishment of panchayats at the village, intermediate and"
,district levels.
,"3. Direct elections to all seats in panchay-ats at the village,"
,intermediate and district levels.
,4. Indirect elections to the post of chairperson of panchayats at the
,intermediate and district levels.
,5. Voting rights of the chairperson and other members of a
,panchayat elected directly or indirectly.
,6. 21 years to be the minimum age for contesting elections to
,panchayats.
,7. Reservation of seats (both members and chairpersons) for SCs
,and STs in panchayats at all the three levels.
,8. Reservation of one-third seats (both members and chairpersons)
,for women in panchayats at all the three levels.
,9. Fixing tenure of five years for panchay-ats at all levels and
,holding fresh elections within six months in the event of
,supersession of any panchayat.
,10. Establishment of a State Election Commission for conducting
,elections to the panchayats.
,11. Constitution of a State Finance Commission after every five
,years to review the financial position of the panchayats.
,
,B. Voluntary Provisions
,1. Endowing the Gram Sabha with powers and functions at the
,village level.
,2. Determining the manner of election of the chairperson of the
,village panchayat.
,3. Giving representation to the chairpersons of the village
,panchayats in the intermediate panchayats or in the case of a
,"      state not having intermediate panchayats, in the district"
,panchayats.
,4.   Giving representation to the chairpersons of the intermediate
,panchayats in the district panchayats.
,5.   Giving representation to members of the Parliament (both the
,Houses) and the state legislature (both the Houses) in the
,panchayats at different levels falling within their constituencies.
,6.   Providing reservation of seats (both members and chairpersons)
,for backward classes in panchayats at any level.
,7.   Granting powers and authority to the panchayats to enable them
,"to function as institutions of self-government (in brief, making"
,them autonomous bodies).
,8.   Devolution of powers and responsibilities upon panchayats to
,prepare plans for economic development and social justice; and
,to perform some or all of the 29 functions listed in the Eleventh
,Schedule of the Constitution.
,"9.   Granting financial powers to the panchayats, that is, authorizing"
,"them to levy, collect and appropriate taxes, duties, tolls and fees."
,"10.    Assigning to a panchayat the taxes, duties, tolls and fees levied"
,and collected by the state government.
,11.   Making the grants-in-aid to the panchay-ats from the
,consolidated fund of the state.
,12.    Providing for constitution of funds for crediting all moneys of the
,panchayats.
, PESA ACT OF 1996 (EXTENSION ACT)
,
,The provisions of Part IX of the constitution relating to the Panchayats
,"are not applicable to the Fifth Schedule areas. However, the"
,"Parliament may extend these provisions to such areas, subject to"
,such exceptions and modifications as it may specify. Under this
,"provision, the Parliament has enacted the “Provisions of the"
,"Panchayats (Extension to the Scheduled Areas) Act”, 1996, popularly"
,known as the PESA Act or the Extension Act.
,"At present (2019), ten states have Fifth Schedule Areas. These are:"
,"Andhra Pradesh, Telangana, Chhatisgarh, Gujarat, Himachal Pradesh,"
,"Jharkhand, Madhya Pradesh, Maharashtra, Odisha and Rajasthan. All"
,the ten states have enacted requisite compliance legislations by
,amending the respective Panchayati Raj Acts.
,
,Objectives of the Act
,The objectives of the PESA Act are as follows6 :
,1. To extend the provisions of Part IX of the Constitution relating to
,the panchayats to the scheduled areas with certain modifications
,2. To provide self-rule for the bulk of the tribal population
,3. To have village governance with participatory democracy and to
,make the gram sabha a nucleus of all activities
,4. To evolve a suitable administrative framework consistent with
,traditional practices
,5. To safeguard and to preserve the traditions and customs of tribal
,communities
,6. To empower panchayats at the appropriate levels with specific
,powers conducive to tribal requirements
,7. To prevent panchayats at the higher level from assuming the
,powers and authority of panchayats at the lower level of the
,gram sabha
,
,Features of the Act
,The features (or the provisions) of the PESA Act are as follows:
,1. A state legislation on the Panchayats in the Scheduled Areas
,"shall be in consonance with the customary law, social and"
,religious practices and traditional management practices of
,community resources.
,2. A village shall ordinarily consist of a habitation or a group of
,habitations or a hamlet or a group of hamlets comprising a
,community and managing its affairs in accordance with traditions
,and customs.
,3. Every village shall have a Gram Sabha consisting of persons
,whose names are included in the electoral rolls for the
,Panchayat at the village level.
,4. Every Gram Sabha shall be competent to safeguard and
,"preserve the traditions and customs of the people, their cultural"
,"identity, community resources and the customary mode of"
,dispute resolution.
,5. Every Gram Sabha shall–
,"(i) approve of the plans, programmes and projects for social"
,economic development before they are taken up
,implementation by the Panchayat at the village level; and
,(ii) be responsible for the identification of beneficiaries under
,poverty alleviation and other programmes.
,6. Every Panchayat at the village level shall be required to obtain
,from the Gram Sabha a certification of utilisation of funds for the
,"above plans, programmes and projects."
,7. The reservation of seats in the Scheduled Areas in every
,Panchayat shall be in proportion to the population of the
,communities for whom reservation is sought to be given under
,"Part IX of the Constitution. However, the reservation for the"
,Scheduled Tribes shall not be less than one-half of the total
,"number of seats. Further, all seats of Chairpersons of"
,Panchayats at all levels shall be reserved for the Scheduled
,Tribes.
,8. The state government may nominate such Scheduled Tribes
,which have no representation in the Panchayat at the
,intermediate level or the Panchayat at the district level. But such
,nomination shall not exceed one-tenth of the total members to
,be elected in that Panchayat.
,9. The Gram Sabha or the Panchayats at the appropriate level
,shall be consulted before making the acquisition of land in the
,Scheduled Areas for development projects and before resettling
,or rehabilitating persons affected by such projects in the
,"Scheduled Areas. However, the actual planning and"
,implementation of the projects in the Scheduled Areas shall be
,coordinated at the state level.
,10. Planning and management of minor water bodies in the
,Scheduled Areas shall be entrusted to Panchayats at the
,appropriate level.
,11. The recommendations of the Gram Sabha or the Panchayats at
,the appropriate level shall be mandatory for grant of prospecting
,licence or mining lease for minor minerals in the Scheduled
,Areas.
,12. The prior recommendation of the Gram Sabha or the
,Panchayats at the appropriate level shall be mandatory for grant
,of concession for the exploitation of minor minerals by auction.
,13. While endowing Panchayats in the Scheduled Areas with such
,powers and authority as may be necessary to enable them to
,"function as institutions of self-government, a State Legislature"
,shall ensure that the Panchayats at the appropriate level and the
,Gram Sabha are endowed specifically with–
,(i) the power to enforce prohibition or to regulate or restrict the s
,and consumption of any intoxicant
,(ii) the ownership of minor forest produce
,(iii) the power to prevent alienation of land in the Scheduled Ar
,and to take appropriate action to restore any unlawfully aliena
,land of a Scheduled Tribe
,(iv) the power to manage village markets
,(v) the power to exercise control over money lending to
,Scheduled Tribes
,(vi) the power to exercise control over institutions and functionarie
,all social sectors
,(vii) the power to control local plans and resources for such pl
,including tribal sub-plans
,14. The State Legislations shall contain safeguards to ensure that
,Panchayats at the higher level do not assume the powers and
,authority of any Panchayat at the lower level or of the Gram
,Sabha.
,15. The State Legislature shall endeavour to follow the pattern of
,the Sixth Schedule to the Constitution while designing the
,administrative arrangements in the Panchayats at district levels
,in the Scheduled Areas.
,16. Any provision of any law (relating to Panchayats in the
,Scheduled Areas) which is inconsistent with the provisions of
,this Act shall cease to be in force at the expiry of one year from
,the date on which this Act receives the assent of the President7.
,"However, all the Panchayats existing immediately before such"
,"date shall continue till the expiry of their term, unless dissolved"
,by the State Legislature sooner.
, FINANCES OF PANCHAYATI RAJ
,
,The Second Administrative Reforms Commission of India (2005–
,2009) has summarized the sources of revenue of the Panchayati Raj
,Institutions (PRIs) and their financial problems in the following way7a:
,1. A major portion of Part IX of the Constitution deals with
,structural empowerment of the PRIs but the real strength in
,terms of both autonomy and efficiency of these institutions is
,dependent on their financial position (including their capacity to
,"generate own resources). In general, Panchayats in our country"
,receive funds in the following ways:
,(i) Grants from the Union Government based on
,recommendations of the Central Finance Commission as
,Article 280 of the Constitution.
,(ii) Devolution from the State Government based on
,recommendations of the State Finance Commission as per Art
,243-I.
,(iii) Loans / grants from the State Government.
,(iv) Programme-specific allocation under Centrally Sponso
,Schemes and Additional Central Assistance.
,(v) Internal Resource Generation (tax and non-tax).
,"2. Across the country, States have not given adequate attention to"
,fiscal empowerment of the Panchayats. The Panchayats own
,"resources are meager. Kerala, Karnataka and Tamil Nadu are"
,the states which are considered to be progressive in PRIs
,"empowerment but even there, the Panchayats are heavily"
,dependent on government grants. One can draw the following
,broad conclusions:
,(i) Internal resource generation at the Panchayat level is weak. T
,is partly due to a thin tax domain and partly due to Panchay
,own reluctance in collecting revenue.
,(ii) Panchayats are heavily dependent on grants from Union
,State Governments.
,(iii) A major portion of the grants both from Union as well as the S
,Governments is scheme specific. Panchayats have lim
,discretion and flexibility in incurring expenditure.
,"(iv) In view of their own tight fiscal position, State Governments"
,not keen to devolve funds to Panchayats.
,(v) In most of the critical Eleventh Schedule matters like prim
,"        education, healthcare, water supply, sanitation and m"
,"irrigation even now, it is the State Government which is dire"
,responsible for implementation of these programmes and he
,expenditure.
,"(vi) Overall, a situation has been created where Panchayats h"
,responsibility but grossly inadequate resources.
,"3. Though, in absolute terms, the quantum of funds the"
,Union/State Government transfers to a Panchayat forms the
,"major component of its receipt, the PRI’s own resource"
,generation is the soul behind its financial standing. It is not only
,a question of resources; it is the existence of a local taxation
,system which ensures people’s involvement in the affairs of an
,elected body. It also makes the institution accountable to its
,citizens.
,"4. In terms of own resource collection, the Gram Panchayats are"
,comparatively in a better position because they have a tax
,"domain of their own, while the other two tiers are dependent only"
,"on tolls, fees and non-tax revenue for generating internal"
,resources.
,5. State Panchayati Raj Acts have given most of the taxation
,powers to Village Panchayats. The revenue domain of the
,intermediate and District Panchayats (both tax as well as non-
,tax) has been kept much smaller and remains confined to
,"secondary areas like ferry services, markets, water and"
,"conservancy services, registration of vehicles, cess on stamp"
,duty and a few others.
,6. A study of various State Legislations indicates that a number of
,"taxes, duties, tolls and fees come under the jurisdiction of the"
,"Village Panchayats. These interalia include octroi, prop-"
,"erty/house tax, profession tax, land tax/cess, taxes/tolls on"
,"vehicles, entertainment tax/fees, license fees, tax on non-"
,"agriculture land, fee on registration of cattle, sanitation/drainage/"
,"conservancy tax, water rate/ tax, lighting rate/tax, education cess"
,and tax on fairs and festivals.
, REASONS FOR INEFFECTIVE PERFORMANCE
,Even after conferring the constitutional status and protection through
,"the 73rd Amendment Act (1992), the performance of the Panchayati"
,Raj Institutions (PRIs) has not been satisfactory and not upto the
,expected level. The various reasons for this sub-optimal performance
,are as follows7b:
,1. Lack of adequate devolution: Many States have not taken
,"adequate steps to devolve 3Fs (i.e., functions, funds and"
,functionaries) to the PRIs to enable them to discharge their
,"constitutionally stipulated function. Further, it is imperative that"
,the PRIs have resources to match the responsibilities entrusted
,to them. While SFCs (state finance commissions) have
,"submitted their recommendations, not many few States have"
,implemented these or taken steps to ensure the fiscal viability of
,the PRIs.
,"2. Excessive control by bureaucracy: In some States, the Gram"
,Panchayats have been placed in a position of subordination.
,"Hence, the Gram Panchayat Sarpanches have to spend"
,extraordinary amount of time visiting Block Offices for funds
,and/or technical approval. These interactions with the Block staff
,office distort the role of Sarpanches as elected representatives.
,3. Tied nature of funds: This has two implications. The activities
,stated under a certain scheme are not always appropriate for all
,parts of the district. This results in unsuitable activities being
,promoted or an under-spend of the funds.
,4. Overwhelming dependency on government funding: A
,review of money received and own source funds shows the
,overwhelming dependence of Panchayats on government
,funding. When Panchayats do not raise resources and instead
,"receive funds from outside, people are less likely to request a"
,social audit.
,5. Reluctance to use fiscal powers: An important power
,devolved to GP (Gram Panchayat) is the right to levy tax on
,"property, business, markets, fairs and also for services provided,"
,"like street lighting or public toilets, etc. Very few Panchayats use"
,their fiscal power to levy and collect taxes. The argument
,pushed by Panchayat heads is that it is difficult to levy tax on
,"     your own constituency, especially when you live in the"
,community.
,6. Status of the Gram Sabha: Empowering the Gram Sabhas
,"could have been a powerful weapon for transparency,"
,accountability and for involvement of the marginalized sections.
,"However, a number of the State Acts have not spelt the powers"
,of Gram Sabhas nor have any procedures been laid down for
,the functioning of these bodies or penalties for the officials.
,"7. Creation of Parallel Bodies: Often, Parallel Bodies (PBs) are"
,created for supposedly speedy implementation and greater
,"accountability. However, there is little evidence to show that such"
,"PBs have avoided the evils including that of partisan politics,"
,"sharing of spoils, corruption and elite capture. Missions (in"
,"particular) often bypassing mainstream programmes, create"
,"disconnect, duality, and alienation between the existing and the"
,new structures and functions. PBs usurp the legitimate space of
,PRIs and demoralize the PRIs by virtue of their superior
,resource endowments.
,8. Poor Infrastructure: A large number of Gram Panchayats in the
,country do not have even full time Secretary. Around 25 percent
,of the Gram Panchayats do not have basic office buildings. The
,"database for planning, monitoring etc., are lacking in most of the"
,cases.
,A large number of elected representatives of PRIs are semi-
,literate or literate and know little about their roles &
,"responsibilities, programmes, procedures, systems. Often for"
,"want of good, relevant and periodic training, they are not able to"
,perform their functions properly.
,Although all the District and Intermediate Panchayats are
,"connected with computers, only around 20% Gram Panchayats"
,"reported to be having computing facility. In some States, Village"
,Panchayats do not have any computing facility.
,
,Table 38.2 Articles Related to Panchayats at a Glance
,Article No.   Subject-matter
,243.       Definitions
,243A.       Gram Sabha
,243B.       Constitution of panchayats
,    243C.      Composition of panchayats
,243D.      Reservation of seats
,"243E.      Duration of panchayats, and so on"
,243F.      Disqualifications for membership
,"243G.      Powers, authority and responsibilities of panchayats"
,"243H.      Powers to impose taxes by, and funds of, the"
,panchayats
,243-I.     Constitution of finance commission to review financial
,position
,243J.      Audit of accounts of panchayats
,243K.      Elections to the panchayats
,243L.      Application to union territories
,243M.      Part not to apply to certain areas
,243N.      Continuance of existing laws and panchayats
,243-O.     Bar to interference by courts in electoral matters
,
,Table 38.3 Name of Panchayati Raj Institutions in the States (2019)8
,Sl. No.    State                        Panchayati Raj
,Institutions
,1.      Andhra Pradesh                 1. Gram Panchayats
,2. Mandal Parishads
,3. Zilla Parishads
,2.      Arunachal Pradesh              1. Gram Panchayats
,2. Anchal Samities
,3. Zilla Parishads
,3.      Assam                          1. Goan Panchayats
,2. Anchalic Panchayats
,3. Zilla Parishads
,4.      Bihar                          1. Village Panchayats
,2. Panchayat Samities
,3. Zilla Parishads
,5.      Chattisgarh                    1. Gram Panchayats
,2. Janpad Panchayats
,3. Zilla Panchayats
,6.    Goa                1. Village Panchayats
,2. Zilla Panchayats
,7.    Gujarat            1. Village Panchayats
,2. Taluka Panchayats
,3. District Panchayats
,8.    Haryana            1. Gram Panchayats
,2. Panchayat Samities
,3. Zilla Parishads
,9.    Himachal Pradesh   1. Gram Panchayats
,2. Panchayat Samities
,3. Zilla Panchayats
,10.   Jharkhand          1. Gram Panchayats
,2. Panchayat Samities
,3. Zilla Panchayats
,11.   Karnataka          1. Gram Panchayats
,2. Taluka Panchayats
,3. Zilla Panchayats
,12.   Kerala             1. Village Panchayats
,2. Block Panchayats
,3. District Panchayats
,13.   Madhya Pradesh     1. Village Panchayats
,2. Block Panchayats
,3. District Panchayats
,14.   Maharashtra        1. Village Panchayats
,2. Panchayat Samities
,3. Zilla Parishads
,15.   Manipur            1. Gram Panchayats
,2. Zilla Panchayats
,16.   Odisha             1. Gram Panchayats
,2. Panchayat Samities
,3. Zilla Parishads
,17.   Punjab             1. Gram Panchayats
,2. Panchayat Samities
,3. Zilla Parishads
,18.   Rajasthan          1. Gram Panchayats
,2. Panchayat Samities
,3. Zilla Parishads
,     19.      Sikkim                       1. Gram Panchayats
,2. Zilla Panchayats
,20.      Tamil Nadu                   1. Village Panchayats
,2. Panchayat Unions
,3. District Panchayats
,21.      Telangana                    1. Gram Panchayats
,2. Mandal Parishads
,3. Zilla Parishads
,22.      Tripura                      1. Gram Panchayats
,2. Panchayat Samities
,3. Zilla Panchayats
,23.      Uttar Pradesh                1. Gram Panchayats
,2. Kshetra Panchayats
,3. Zilla Panchayats
,24.      Uttarakhand                  1. Gram Panchayats
,2. Intermediate
,Panchayats
,3. District Panchayats
,25.      West Bengal                  1. Gram Panchayats
,2. Panchayat Samities
,3. Zilla Parishads
,
,Table 38.4 Milestones in the Evolution of Panchayati Raj9
,I. Towards First Generation Panchayats
,1948– Constituent Assembly debates on the role of Panchayati Raj
,49    in Indian polity
,1950 The Constitution of India comes into force on 26 January;
,Directive Principles of State Policy mention village panchayats
,as ‘units of self-government’ (Art 40)
,1952 Community Development Programme starts on 2nd October
,"1957 Balvantrai Mehta Committee, appointed in January, submits"
,its report on 24 November
,1958– Several state governments enact new Panchayat Acts
,60    bringing in three-tier panchayat system
,1959 Jawaharlal Nehru inaugurates the first generation panchayat
,       at Nagaur in Rajasthan on 2nd October Kerala District Council
,Bill is introduced in Kerala Assembly; lapses after Assembly is
,dissolved
,1964– Decline of first generation Panchayati Raj Institutions
,77
,II. Growth and Decline of Second Generation Panchayats
,1978 Panchayat elections are held in West Bengal on party basis
,on 4th June–marking the beginning of second generation of
,Panchayati Raj.
,"Ashok Mehta Committee on working of panchayats, appointed"
,"on 12 December 1977, submits its report on 21 August"
,1983 Karnataka government enacts new PR Act
,"1984 Hanumantha Rao Committee on district level planning,"
,"appointed by Planning Commission in September 1982,"
,submits its report in May
,1985 Karnataka PR Act receives President’s assent in July; comes
,into force on 14th August
,1985 G.V.K. Rao Committee on administrative aspects of rural
,"development, appointed by Planning Commission on 25"
,"March, submits its report in December"
,1986 Andhra Pradesh follows West Bengal and Karnataka
,Panchayati Raj Model
,1987 Karnataka holds panchayat elections in January
,1990– Panchayats are dissolved and brought under administrators in
,92    Karnataka
,III. Constitutionalisation of Panchayati Raj
,1986 L.M. Singhvi Committee submits its report on 27 November;
,recommends constitutional status for panchayats
,1988 Consultative Committee of Parliament appoints a sub-
,committee under chairpersonship of P.K. Thungon to consider
,Constitutional Amendment
,1989 64th Constitutional Amendment Bill is introduced in Parliament
,on 15 May; is defeated in Rajya Sabha on 15 October
,1990 74th Constitutional Amendment Bill is introduced in Parliament
,on 7 September; lapses on dissolution of Lok Sabha
,1991 72nd (Panchayats) and 73rd (Municipalities) Amendment Bills
,are introduced in Parliament; referred to the Parliament’s Joint
,Select Committee in September
,1992 Lok Sabha passes both the Bills on 22 December; Rajya
,Sabha passes them on 23 December
,"1993 73rd Amendment Act, 1992 comes into force on 24 April"
,"74th Amendment Act, 1992 comes into force on 1 June"
,"1993– All state governments pass Conformity Acts between 30 May,"
,"94    1993 and 23 April, 1994"
,1994 Madhya Pradesh holds panchayat elections under the 73rd
,Amendment dispensation on 30 May
,1996 Provisions of the Panchayats (Extension to the Scheduled
,"Areas) Act, 1996, extending 73rd Amendment Act to"
,"Scheduled Areas, comes into force on 24 December."
,Kerala launches People’s Plan Campaign on 16 August
,2001 Bihar holds panchayat elections after 23 years (11–30 April)
,"2001 83rd Constitutional Amendment Act, 2000 amends Art. 243-M"
,to dispense with reservations for Scheduled Castes in
,Arunachal Pradesh–paving way for panchayat elections in the
,only state yet to hold them under the new dispensation
,
,Table 38.5 Committees Related to Panchayati Raj (After
,Constitutionalisation)
,Sl. Name of the Committee Chairman             Appointed Reported
,No.                                               in        in
,1. Task Force on Devolution Lalit Mathur         2001       2001
,of Powers and Functions
,to Panchayati Raj
,Institutions
,2. Expert Group on           V.                  2005       2006
,Planning at the           Ramachandran
,Grassroots Level
,3. Task Force for            Smt. Rajwant        2008       2008
,Preparation of a Manual   Sandhu
,for District Planning
,4. Committee on                V.                  2010       2012
,Restructuring of DRDA       Ramachandran
,(District Rural
,Development Agency)
,5. Expert Committee on         Mani Shankar        2012       2013
,Leveraging Panchayats       Aiyar
,for Efficient Delivery of
,Public Goods and
,Services
,
,
,NOTES AND REFERENCES
,1. The subject of ‘Local Government’ is mentioned in the State
,List under the Seventh Schedule of the Constitution.
,"2. This bill was passed by the Lok Sabha on 22 December,"
,"1992, and by the Rajya Sabha on 23 December, 1992."
,"Later, it was approved by the 17 state assemblies and"
,"received the assent of the president on 20 April, 1993."
,3. The Act defines all these terms in the following manner:
,(a) Panchayat means an institution (by whatever name
,called) of selfgovernment for rural areas.
,(b) Village means a village specified by the governor by
,"public notification to be a village for this purpose, and"
,includes a group of villages so specified.
,(c) Intermediate level means a level between the village
,and district levels specified by the governor by public
,notification for this purpose.
,(d) District means a district in a state.
,4. A judge of a high court can be removed from his office by
,the president on the recommendation of the Parliament.
,This means that a state election commissioner cannot be
,"removed by the governor, though appointed by him."
,"5. At present (2019), ten states of India have scheduled areas."
,"These are: Andhra Pradesh, Telangana, Jharkhand,"
,"Chhatisgarh, Gujarat, Himachal Pradesh, Madhya Pradesh,"
,"Maharashtra, Odisha and Rajasthan. Presently (2019),"
,there are a total of ten tribal areas (autonomous districts) in
,"the four states of Assam (3), Meghalaya (3), Tripura (1) and"
,Mizoram (3).
," 6. S.K. Singh, Panchayats in Scheduled Areas, Kurukshetra,"
,"May 2001, p. 26."
,7. This Act received the assent of the President on 24
,"December, 1996."
,"7a. Second Administrative Reforms Commission, Government"
,"of India, Report on Local Governance, 2007, pp. 151–154."
,"7b. Ministry of Panchayati Raj, Government of India, Roadmap"
,"for the Panchayati Raj (2011–16), pp. 11–12, 23 and 7–8."
,"8. Report of the Thirteenth Finance Commission (2010–2015),"
,"Volume II, December 2009, pp. 424–426."
,"9. Panchayati Raj Update, October, 2002, Institute of Social"
,"Sciences, New Delhi."
, 39      Municipalities
,
,
,
,
,T
,he term ‘Urban Local Government’ in India signifies the
,governance of an urban area by the people through their
,elected representatives. The jurisdiction of an urban local
,government is limited to a specific urban area which is demarcated for
,this purpose by the state government1 .
,There are eight types of urban local governments in India–
,"municipal corporation, municipality, notified area committee, town area"
,"committee, cantonment board, township, port trust and special"
,purpose agency.
,The system of urban government was constitutionalised through
,"the 74th Constitutional Amendment Act of 1992. At the Central level,"
,the subject of ‘urban local government’ is dealt with by the following
,three ministries:
,(i) Ministry of Housing and Urban Affairs.
,(ii) Ministry of Defence in the case of cantonment boards
,(iii) Ministry of Home Affairs in the case of Union Territories
, EVOLUTION OF URBAN BODIES
,
,Historical Perspective
,The institutions of urban local government originated and developed in
,modern India during the period of British rule. The major events in this
,context are as follows:
,"(i) In 1688, the first municipal corporation in India was set up at"
,Madras.
,"(ii) In 1726, the municipal corporations were set up in Bombay and"
,Calcutta.
,(iii) Lord Mayo’s Resolution of 1870 on financial decentralisation
,visualised the development of local self-government institutions.
,(iv) Lord Ripon’s Resolution of 1882 has been hailed as the ‘Magna
,Carta’ of local self-government. He is called as the father of
,local-self government in India.
,(v) The Royal Commission on decentralisation was appointed in
,1907 and it submitted its report in 1909. Its chairman was
,Hobhouse.
,(vi) Under the dyarchical scheme introduced in Provinces by the
,"Government of India Act of 1919, local self-government became"
,a transferred subject under the charge of a responsible Indian
,minister.
,"(vii) In 1924, the Cantonments Act was passed by the Central"
,legislature.
,(viii) Under the provincial autonomy scheme introduced by the
,"Government of India Act of 1935, local self-government was"
,declared a provincial subject.
,
,Committees and Commissions
,The committees and commissions appointed by the Central
,Government to improve the functioning of urban local governments
,are mentioned below in Table 39.1.
,
,Constitutionalisation
,"In August 1989, the Rajiv Gandhi government introduced the 65th"
,"Constitutional Amendment Bill (i.e., Nagarpalika Bill) in the Lok Sabha."
,The bill aimed at strengthening and revamping the municipal bodies
,by conferring a constitutional status on them. Although the bill was
,"passed in the Lok Sabha, it was defeated in the Rajya Sabha in"
,"October 1989 and hence, lapsed."
,
,Table 39.1 Committees and Commissions on Urban Local
,Governments
,Sl. Year           Name of the Committee / Chairman
,No.                Commission
,1.   1949–51      Local Finance Enquiry       P.K. Wattal
,Committee
,2.   1953–54      Taxation Enquiry            John Matthai
,Commission
,3.   1963–65      Committee on the Training Nur-Ud-din Ahmed
,of Municipal Employees
,4.   1963–66      Rural-Urban Relationship    A.P. Jain
,Committee
,5.   1963         Committee of Ministers on Rafiq Zakaria
,Augmentation of Financial
,Resources of Urban Local
,Bodies
,6.   1965–68      Committee on Service        –
,Conditions of Municipal
,Employees
,7.   1974         Committee on Budgetary      Girijapati Mukharji
,Reform in Municipal
,Administration
,8.   1982         Study Group on              K.N. Sahaya
,"Constitution, Powers and"
,Laws of Urban Local
,Bodies and Municipal
,Corporations
,9.   1985–88      National Commission on      C.M. Correa
,Urbanisation
,
,The National Front Government under V P Singh introduced the
,revised Nagarpalika Bill in the Lok Sabha again in September 1990.
,"However, the bill was not passed and finally lapsed due to the"
,dissolution of the Lok Sabha.
,P V Narasimha Rao’s Government also introduced the modified
,Municipalities Bill inthe Lok Sabha in September 1991. It finally
,emerged as the 74th Constitutional Amendment Act of 1992 and came
,into force on 1 June 19932 .
, 74TH AMENDMENT ACT OF 1992
,
,This Act has added a new Part IX-A to the Constitution of India. This
,part is entitled as ‘The Municipalities’ and consists of provisions from
,"Articles 243-P to 243-ZG. In addition, the act has also added a new"
,Twelfth Schedule to the Constitution. This schedule contains eighteen
,functional items of municipalities. It deals with Article 243-W.
,The act gave constitutional status to the municipalities. It has
,brought them under the purview of justiciable part of the Constitution.
,"In other words, state governments are under constitutional obligation"
,to adopt the new system of municipalities in accordance with the
,provisions of the act.
,The act aims at revitalising and strengthening the urban
,governments so that they function effectively as units of local
,government.
,
,Salient Features
,The salient features of the act are:
,
,Three Types of Municipalities
,The act provides for the constitution of the following three types of
,municipalities in every state.
,1. A nagar panchayat (by whatever name called) for a transitional
,area3 .
,2. A municipal council for a smaller urban area.
,3. A municipal corporation for a larger urban area.
,"But, there is one exception. If there is an urban area where"
,"municipal services are being provided by an industrial establishment,"
,then the governor may specify that area to be an industrial township.
,"In such a case, a municipality may not be constituted."
,"The governor has to specify a transitional area, a smaller urban"
,"area or a larger urban area, keeping in view the following factors:"
,(a) Population of the area.
,(b) Density of the population therein.
,(c) Revenue generated for local administration.
,(d) Percentage of employment in non-agricultural activities.
,(e) Economic importance.
,(f) Such other factors as he may deem fit.
,Composition
,All the members of a municipality shall be elected directly by the
,"people of the municipal area. For this purpose, each municipal area"
,shall be divided into territorial constituencies to be known as wards.
,The state legislature may provide the manner of election of the
,chairperson of a municipality. It may also provide for the
,representation of the following persons in a municipality.
,1. Persons having special knowledge or experience in municipal
,administration without the right to vote in the meetings of
,municipality.
,2. The members of the Lok Sabha and the state legislative
,assembly representing constituencies that comprise wholly or
,partly the municipal area.
,3. The members of the Rajya Sabha and the state legislative
,council registered as electors within the municipal area.
,4. The chairpersons of committees (other than wards committees).
,
,Wards Committees
,"There shall be constituted a wards committee, consisting of one or"
,"more wards, within the territorial area of a municipality having"
,population of three lakh or more. The state legislature may make
,provision with respect to the composition and the territorial area of a
,wards committee and the manner in which the seats in a wards
,committee shall be filled.
,
,Other Committees
,"In addition to the wards committees, the state legislature is also"
,allowed to make any provision for the constitution of other committees.
,The chairpersons of such committees may be made members of the
,municipality.
,
,Reservation of Seats
,The act provides for the reservation of seats for the scheduled castes
,and the scheduled tribes in every municipality in proportion of their
,"population to the total population in the municipal area. Further, it"
,provides for the reservation of not less than one-third of the total
,number of seats for women (including the number of seats reserved
,for woman belonging to the SCs and the STs).
,The state legislature may provide for the manner of reservation of
,"offices of chairpersons in the municipalities for SCs, STs and women."
,It may also make any provision for the reservation of seats in any
,municipality or offices of chairpersons in municipalities in favour of
,backward classes.
,The reservation of seats as well as the reservation of offices of
,chairpersons in the municipalities for the scheduled castes and
,scheduled tribes shall cease to have effect after the expiration of the
,"period specified in Article 334 (which is presently seventy years, that"
,"is, till 2020)."
,
,Duration of Municipalities
,The act provides for a five-year term of office for every municipality.
,"However, it can be dissolved before the completion of its term."
,"Further, the fresh elections to constitute a municipality shall be"
,completed (a) before the expiry of its duration of five years; or (b) in
,"case of dissolution, before the expiry of a period of six months from"
,the date of its dissolution.
,"But, where the remainder of the period (for which the dissolved"
,"municipality would have continued) is less than six months, it shall not"
,be necessary to hold any election for constituting the new municipality
,for such period.
,"Moreover, a municipality constituted upon the dissolution of a"
,municipality before the expiration of its duration shall continue only for
,the remainder of the period for which the dissolved municipality would
,"have continued had it not been so dissolved. In other words, a"
,municipality reconstituted after premature dissolution does not enjoy
,the full period of five years but remains in office only for the remainder
,of the period.
,The act also makes two more provisions with respect to dissolution:
,(a) a municipality must be given a reasonable opportunity of being
,heard before its dissolution; and (b) no amendment of any law for the
,time being in force shall cause dissolution of a municipality before the
,expiry of the five years term.
,
,Disqualifications
,A person shall be disqualified for being chosen as or for being a
,member of a municipality if he is so disqualified (a) under any law for
,the time being in force for the purposes of elections to the legislature
,of the state concerned; or (b) under any law made by the state
,"legislature. However, no person shall be disqualified on the ground"
,that he is less than 25 years of age if he has attained the age of 21
,"years. Further, all questions of disqualifications shall be referred to"
,such authority as the state legislature determines.
,State Election Commission
,"The superintendence, direction and control of the preparation of"
,electoral rolls and the conduct of all elections to the municipalities
,shall be vested in the state election commission.
,The state legislature may make provision with respect to all matters
,relating to elections to the municipalities.
,
,Powers and Functions
,The state legislature may endow the municipalities with such powers
,and authority as may be necessary to enable them to function as
,institutions of self-government. Such a scheme may contain provisions
,for the devolution of powers and responsibilities upon municipalities at
,the appropriate level with respect to (a) the preparation of plans for
,economic development and social justice; (b) the implementation of
,schemes for economic development and social justice as may be
,"entrusted to them, including those in relation to the eighteen matters"
,listed in the Twelfth Schedule.
,
,Finances
,"The state legislature may (a) authorise a municipality to levy, collect"
,"and appropriate taxes, duties, tolls and fees; (b) assign to a"
,"municipality taxes, duties, tolls and fees levied and collected by state"
,government; (c) provide for making grants-in-aid to the municipalities
,from the consolidated fund of the state; and (d) provide for constitution
,of funds for crediting all moneys of the municipalities.
,
,Finance Commission
,The finance commission (which is constituted for the panchayats)
,"shall also, for every five years, review the financial position of"
,municipalities and make recommendation to the governor as to:
,1. The principles that should govern:
,(a) The distribution between the state and the municipalities of
,"the net proceeds of the taxes, duties, tolls and fees levied by"
,the state and allocation of shares amongst the municipalities
,at all levels.
,"(b) The determination of the taxes, duties, tolls and fees that"
,may be assigned to the municipalities.
,(c) The grants-in-aid to the municipalities from the consolidated
,fund of the state.
,2. The measures needed to improve the financial position of the
,municipalities.
,   3. Any other matter referred to it by the governor in the interests of
,sound finance of municipalities.
,The governor shall place the recommendations of the commission
,along with the action taken report before the state legislature.
,The central finance commission shall also suggest the measures
,needed to augment the consolidated fund of a state to supplement the
,resources of the municipalities in the state (on the basis of the
,recommendations made by the finance commission of the state).
,
,Audit of Accounts
,The state legislature may make provisions with respect to the
,maintenance of accounts by municipalities and the auditing of such
,accounts.
,
,Application to Union Territories
,"The provisions of this part are applicable to the Union territories. But,"
,the President may direct that they would apply to a Union territory
,subject to such exceptions and modifications as he may specify.
,
,Exempted Areas
,The act does not apply to the scheduled areas and tribal areas in the
,states4. It shall also not affect the functions and powers of the
,Darjeeling Gorkha Hill Council of the West Bengal.
,"However, the Parliament may extend the provisions of this part to"
,the scheduled areas and tribal areas subject to such exceptions and
,modifications as it may specify.
,
,District Planning Committee
,"Every state shall constitute at the district level, a district planning"
,committee to consolidate the plans prepared by panchayats and
,"municipalities in the district, and to prepare a draft development plan"
,for the district as a whole. The state legislature may make provisions
,with respect to the following:
,1. The composition of such committees;
,2. The manner of election of members of such committees;
,3. The functions of such committees in relation to district planning;
,and
,4. The manner of the election of the chairpersons of such
,committees.
,The act lays down that four-fifths of the members of a district
,planning committee should be elected by the elected members of the
,district panchayat and municipalities in the district from amongst
,themselves. The representation of these members in the committee
,should be in proportion to the ratio between the rural and urban
,populations in the district.
,The chairperson of such committee shall forward the development
,plan to the state government.
,"In preparing the draft development plan, a district planning"
,committee shall
,(a) Have regard to–
,(i) matters of common interest between the Panchayats and
,"Municipalities including spatial planning, sharing of water"
,"other physical and natural resources, the integrated developm"
,of infrastructure and environmental conservation;
,(ii) the extent and type of available resources whether financia
,otherwise; and
,(b) Consult such institutions and organisations as the Governor may
,specify.
,
,Metropolitan Planning Committee
,Every metropolitan area shall have a metropolitan planning committee
,to prepare a draft development plan5. The state legislature may make
,provisions with respect to the following:
,1. The composition of such committees;
,2. The manner of election of members of such committees;
,3. The representation in such committes of the Central
,"government, state government and other organisations;"
,4. The functions of such committees in relation to planning and
,coordination for the metropolitan area; and
,5. The manner of election of chairpersons of such committees.
,The act lays down that two-thirds of the members of a metropolitan
,planning committee should be elected by the elected members of the
,municipalities and chairpersons of the panchayats in the metropolitan
,area from amongst themselves. The representation of these members
,in the committee should be in proportion to the ratio between the
,population of the municipalities and the panchayats in that
,metropolitan area.
,The chairpersons of such committees shall forward the
,development plan to the state government.
,"In preparing the draft development plan, a metropolitan planning"
,committee shall
,(a) Have regard to–
,     (i) the plans prepared by the Municipalities and the Panchayats
,the Metropolitan area;
,(ii) matters of common interest between the Municipalities and t
,"Pan-chayats, including co-ordinated spatial planning of the are"
,"sharing of water and other physical and natural resources, t"
,integrated development of infrastructure and environmen
,conservation;
,(iii) the overall objectives and priorities set by the Government
,India and the government of the state;
,(iv) the extent and nature of investments likely to be made in t
,Metropolitan area by agencies of the Government of India and
,the Government of the State and other available resourc
,whether financial or otherwise; and
,(b) consult such institutions and organisations as the Governor may
,specify.
,
,Continuance of Existing Laws and Municipalities
,All the state laws relating to municipalities shall continue to be in force
,until the expiry of one year from the commencement of this act. In
,"other words, the states have to adopt the new system of municipalities"
,"based on this act within the maximum period of one year from 1 June,"
,"1993, which is the date of commencement of this act. However, all"
,municipalities existing immediately before the commencement of this
,"act shall continue till the expiry of their term, unless dissolved by the"
,state legislature sooner.
,
,Bar to Interference by Courts in Electoral Matters
,The act bars the interference by courts in the electoral matters of
,municipalities. It declares that the validity of any law relating to the
,delimitation of constituencies or the allotment of seats to such
,constituencies cannot be questioned in any court. It further lays down
,that no election to any municipality is to be questioned except by an
,election petition presented to such authority and in such manner as
,provided by the state legislature.
,
,Twelfth Schedule
,It contains the following 18 functional items placed within the purview
,of municipalities:
,1. Urban planning including town planning;
,2. Regulation of land use and construction of buildings;
,3. Planning for economic and social development;
, 4. Roads and bridges;
,"5. Water supply for domestic, industrial and commercial purposes;"
,"6. Public health, sanitation, conservancy and solid waste"
,management;
,7. Fire services;
,"8. Urban forestry, protection of the environment and promotion of"
,ecological aspects;
,"9. Safeguarding the interests of weaker sections of society,"
,including the handicapped and mentally retarded;
,10. Slum improvement and upgradation;
,11. Urban poverty alleviation;
,"12. Provision of urban amenities and facilities such as parks,"
,"gardens, playgrounds;"
,"13. Promotion of cultural, educational and aesthetic aspects;"
,"14. Burials and burial grounds, cremations and cremation grounds"
,and electric crematoriums;
,"15. Cattle ponds, prevention of cruelty to animals;"
,16. Vital statistics including registration of births and deaths;
,"17. Public amenities including street lighting, parking lots, bus stops"
,and public conveniences; and
,18. Regulation of slaughter houses and tanneries.
, TYPES OF URBAN GOVERNMENTS
,The following eight types of urban local bodies are created in India for
,the administration of urban areas:
,• Municipal Corporation
,• Municipality
,• Notified Area Committee
,• Town Area Committee
,• Cantonment Board
,• Township
,• Port Trust
,• Special Purpose Agency
,
,1. Municipal Corporation
,Municipal corporations are created for the administration of big cities
,"like Delhi, Mumbai, Kolkata, Hyderabad, Bangalore and others. They"
,are established in the states by the acts of the concerned state
,"legislatures, and in the union territories by the acts of the Parliament"
,of India. There may be one common act for all the municipal
,corporations in a state or a separate act for each municipal
,corporation.
,"A municipal corporation has three authorities, namely, the council,"
,the standing committees and the commissioner.
,The Council is the deliberative and legislative wing of the
,corporation. It consists of the Councillors directly elected by the
,"people, as well as a few nominated persons having knowledge or"
,"experience of municipal administration. In brief, the composition of the"
,"Council including the reservation of seats for SCs, STs and women is"
,governed by the 74th Constitutional Amendment Act.
,The Council is headed by a Mayor. He is assisted by a Deputy
,Mayor. He is elected in a majority of the states for a one-year
,renewable term. He is basically an ornamental figure and a formal
,head of the corporation. His main function is to preside over the
,meetings of the Council.
,The standing committees are created to facilitate the working of the
,"council, which is too large in size. They deal with public works,"
,"education, health, taxation, finance and so on. They take decisions in"
,their fields.
,   The municipal commissioner is responsible for the implementation
,of the decisions taken by the council and its standing committees.
,"Thus, he is the chief executive authority of the corporation. He is"
,appointed by the state government and is generally a member of the
,IAS.
,
,2. Municipality
,The municipalities are established for the administration of towns and
,"smaller cities. Like the corporations, they are also set up in the states"
,by the acts of the concerned state legislatures and in the union
,territory by the acts of the Parliament of India. They are also known by
,"various other names like municipal council, municipal committee,"
,"municipal board, borough municipality, city municipality and others."
,"Like a municipal corporation, a municipality also has three"
,"authorities, namely, the council, the standing committees and the chief"
,executive officer.
,The council is the deliberative and legislative wing of the
,municipality. It consists of the councillors directly elected by the
,people.
,The council is headed by a president/chair-man. He is assisted by a
,vice-president/vice-chairman. He presides over the meetings of the
,"council. Unlike the Mayor of a municipal corporation, he plays a"
,significant role and is the pivot of the municipal administration. Apart
,"from presiding over the meetings of the Council, he enjoys executive"
,powers.
,The standing committees are created to facilitate the working of the
,"council. They deal with public works, taxation, health, finance and so"
,on.
,The chief executive officer/chief municipal officer is responsible for
,day-to-day general administration of the municipality. He is appointed
,by the state government.
,
,3. Notified Area Committee
,A notified area committee is created for the administration of two types
,"of areas–a fast developing town due to industrialisation, and a town"
,which does not yet fulfil all the conditions necessary for the
,"constitution of a municipality, but which otherwise is considered"
,important by the state government. Since it is established by a
,"notification in the government gazette, it is called as notified area"
,committee. Though it functions within the framework of the State
,"Municipal Act, only those provisions of the act apply to it which are"
,notified in the government gazette by which it is created. It may also
,be entrusted to exercise powers under any other act. Its powers are
,almost equivalent to those of a municipality. But unlike the
,"municipality, it is an entirely nominated body, that is, all the members"
,of a notified area committee including the chairman are nominated by
,"the state government. Thus, it is neither an elected body nor a"
,statutory body.
,
,4. Town Area Committee
,A town area committee is set up for the administration of a small town.
,It is a semimunicipal authority and is entrusted with a limited number
,"of civic functions like drainage, roads, street lighting, and conservancy."
,"It is created by a separate act of a state legislature. Its composition,"
,functions and other matters are governed by the act. It may be wholly
,elected or wholly nominated by the state government or partly elected
,and partly nominated6 .
,
,5. Cantonment Board
,A cantonment board is established for municipal administration for
,civilian population in the cantonment area7. It is set up under the
,provisions of the Cantonments Act of 2006–a legislation enacted by
,the Central government. It works under the administrative control of
,"the defence ministry of the Central government. Thus, unlike the"
,"above four types of urban local bodies, which are created and"
,"administered by the state government, a cantonment board is created"
,as well as administered by the Central government.
,The Cantonments Act of 2006 was enacted to consolidate and
,amend the law relating to the administration of cantonments with a
,"view to impart greater democratisation, improvement of their financial"
,base to make provisions for developmental activities and for matters
,connected with them. This Act has repealed the Cantonments Act of
,1924
,"At present (2019), there are 62 cantonment boards in the country."
,They are grouped into four categories on the basis of the civil
,population. This is shown below in Table 39.2.
,
,Table 39.2 Classification of Cantonment Boards
,  Category      Civil Population
,"I        above 50,000"
,"II       10,000 to 50,000"
,"III      2,500 to 10,000"
,"IV        Below 2,500"
,
,A cantonment board consists of partly elected and partly nominated
,members. The elected members hold office for a term of five years
,"while the nominated members (i.e., ex-officio members) continue so"
,long as they hold the office in that station. The military officer
,commanding the station is the ex-officio president of the board and
,presides over its meetings. The vice-president of the board is elected
,by the elected members from amongst themselves for a term of five
,years.
,The Category I cantonment board consists of the following
,members:
,(i) A military officer commanding the station
,(ii) An executive engineer in the cantonment
,(iii) A health officer in the cantonment
,(iv) A first class magistrate nominated by the district magistrate
,(v) Three military officers nominated by the officer commanding the
,station
,(vi) Eight members elected by the people of the cantonment area
,(vii) Chief Executive Officer of the cantonment board
,The functions performed by a cantonment board are similar to
,those of a municipality. These are statutorily categorised into
,obligatory functions and discretionary functions. The sources of
,"income includes both, tax revenue and non-tax revenue."
,The executive officer of the cantonment board is appointed by the
,president of India. He implements all the resolutions and decisions of
,the board and its committees. He belongs to the central cadre
,established for the purpose.
,
,6. Township
,This type of urban government is established by the large public
,enterprises to provide civic amenities to its staff and workers who live
,in the housing colonies built near the plant. The enterprise appoints a
,town administrator to look after the administration of the township. He
,is assisted by some engineers and other technical and non-technical
,"staff. Thus, the township form of urban government has no elected"
,"members. In fact, it is an extension of the bureaucratic structure of the"
,enterprises.
,
,7. Port Trust
,"The port trusts are established in the port areas like Mumbai, Kolkata,"
,Chennai and so on for two purposes: (a) to manage and protect the
,ports; and (b) to provide civic amenities. Aport trust is created by an
,Act of Parliament. It consists of both elected and nominated members.
,Its chairman is an official. Its civic functions are more or less similar to
,those of a municipality.
,
,8. Special Purpose Agency
,In addition to these seven area-based urban bodies (or multipurpose
,"agencies), the states have set up certain agencies to undertake"
,designated activities or specific functions that ‘legitimately’ belong to
,the domain of municipal corporations or municipalities or other local
,"urban governments. In other words, these are function-based and not"
,"areabased. They are known as ‘single purpose’, ‘uni-purpose’ or"
,‘special purpose’ agencies or ‘functional local bodies’. Some such
,bodies are:
,1. Town improvement trusts.
,2. Urban development authorities.
,3. Water supply and sewerage boards.
,4. Housing boards.
,5. Pollution control boards.
,6. Electricity supply boards.
,7. City transport boards.
,These functional local bodies are established as statutory bodies by
,an act of state legislature or as departments by an executive
,resolution. They function as autonomous bodies and deal with the
,functions allotted to them independently of the local urban
,"governments, that is, municipal corporations or municipalities and so"
,"forth. Thus, they are not subordinate agencies of the local municipal"
,bodies.
, MUNICIPAL PERSONNEL
,
,There are three types of municipal personnel systems in India. The
,personnel working in the urban governments may belong to any one
,or all the three types. These are
,"1. Separate Personnel System: Under this system, each local body"
,"appoints, administers, and controls its own personnel. They are not"
,transferable to other local bodies. It is the most widely prevalent
,system. This system upholds the principle of local autonomy and
,promotes undivided loyalty.
,"2. Unified Personnel System: In this system, the state government"
,"appoints, administers, and controls the municipal personnel. In other"
,"words, state-wide services (cadres) are created for all the urban"
,bodies in the state. They are transferable between the local bodies in
,"the state. This system is prevalent in Andhra Pradesh, Tamil Nadu,"
,"Uttar Pradesh, Rajasthan, Madhya Pradesh and so on."
,"3. Integrated Personnel System: Under this system, the personnel"
,of the state government and those of the local bodies form part of the
,"same service. In other words, the municipal personnel are the"
,members of the state services. They are transferable not only
,between the local bodies in the state but also between local bodies
,"and departments of state government. Thus, there is no distinction"
,between local civil service and state civil service. This system is
,"prevalent in Odisha, Bihar, Karnataka, Punjab, Haryana and others."
,The various national level institutions providing training to the
,municipal personnel are
,1. All-India Institute of Local SelfGovernment (Mumbai) constituted
,in 1927; it is a private registered society
,2. Centre for Urban and Environmental Studies (New Delhi) set up
,in 1967 on the recommendation of Nur-uddin Ahmed Committee
,on Training of Municipal Employees (1963–1965)
,"3. Regional Centres for Urban and Environmental Studies (Kolkata,"
,"Lucknow, Hyderabad and Mumbai) set up in 1968 on the"
,recommendation of Nur-ud-din Ahmed Committee on Training of
,Municipal Employees (1963–1965)
,"4. National Institute of Urban Affairs, established in 1976"
,"5. Human Settlement Management Institute, established in 1985"
, MUNICIPAL REVENUE
,
,There are five sources of income of the urban local bodies. These are
,as follows:
,1. Tax Revenue: The revenue from the local taxes include
,"property tax, entertainment tax, taxes on advertisements,"
,"professional tax, water tax, tax on animals, lighting tax, pilgrim"
,"tax, market tax, toll on new bridges, octroi and so on. In addition,"
,"the municipal bodies imposes various cesses like library cess,"
,"education cess, beggary cess and so on. Octroi (i.e., taxes on"
,"the entry of goods into a local area for consumption, use or sale"
,therein) has been abolished in most of the states. Property tax is
,the most important tax revenue.
,2. Non-Tax Revenue: This source include rent on municipal
,"properties, fees and fines, royalty, profits and dividends, interest,"
,"user charges and miscellaneous receipts. The user charges (i.e.,"
,"payment for public utilities) include water charges, sanitation"
,"charges, sewerage charges and so on."
,3. Grants: These include the various grants given to municipal
,bodies by the Central and State Governments for several
,"development programmes, infrastructure schemes, urban reform"
,initiatives and so on.
,4. Devolution: This consists of the transfer of funds to the urban
,local bodies from the state government. This devolution is made
,on the basis of the recommendations of the state finance
,commission.
,5. Loans: The urban local bodies raise loans from the state
,government as well as financial institutions to meet their capital
,expenditure. They can borrow from the financial institutions or
,other bodies only with the approval of the state government.
, CENTRAL COUNCIL OF LOCAL GOVERNMENT
,
,The Central Council of Local Government was set up in 1954. It was
,constituted under Article 263 of the Constitution of India by an order of
,"the President of India. Originally, it was known as the Central Council"
,"of Local Self-Government. However, the term ‘selfgovernment’ was"
,found to be superfluous and hence was replaced by the term
,"‘government’ in the 1980s. Till 1958, it dealt with both urban as well as"
,"rural local governments, but after 1958 it has been dealing with"
,matters of urban local government only.
,The Council is an advisory body. It consists of the Minister for
,Urban Development in the Government of India and the ministers for
,local self government in states. The Union minister acts as the
,Chairman of the Council.
,The Council performs the following functions with regard to local
,government:
,(i) Considering and recommending the policy matters
,(ii) Making proposals for legislation
,(iii) Examining the possibility of cooperation between the Centre and
,the states
,(iv) Drawing up a common programme of action
,(v) Recommending Central financial assistance
,(vi) Reviewing the work done by the local bodies with the Central
,financial assistance
,
,Table 39.3 Articles Related to Municipalities at a Glance
,Article No.   Subject-matter
,243P       Definitions
,243Q       Constitution of municipalities
,243R       Composition of municipalities
,"243S       Constitution and composition of wards committees,"
,and so on
,243T       Reservation of seats
,"243U       Duration of municipalities, and so on"
,243V       Disqualifications for membership
,"243W       Powers, authority and responsibilities of"
,"               municipalities, and so on"
,"243X       Powers to impose taxes by, and funds of, the"
,municipalities
,243Y       Finance commission
,243Z       Audit of accounts of municipalities
,243ZA      Elections to the municipalities
,243ZB      Application to union territories
,243ZC      Part not to apply to certain areas
,243ZD      Committee for district planning
,243ZE      Committee for metropolitan planning
,243ZF      Continuance of existing laws and municipalities
,243ZG      Bar to interference by courts in electoral matters
,
,
,Table 39.4 Name of Urban Local Bodies in the States (2019)8
,Sl. No.   State                  Urban Local Bodies
,1.      Andhra Pradesh           1. Municipal Corporations
,2. Municipalities
,3. Nagar Panchayats
,2.      Arunachal Pradesh      (ULBs do not exist)
,3.      Assam                    1. Municipal Corporations
,2. Municipalities
,3. Town Panchayats
,4.      Bihar                    1. Municipal Corporations
,2. Municipal Councils
,3. Nagar Panchayats
,5.      Chattisgarh              1. Municipal Corporations
,2. Municipalities
,3. Town Panchayats
,6.      Goa                      1. Municipal Corporations
,2. Municipal Councils
,7.      Gujarat                  1. Municipal Corporations
,2. Municipalities
,3. Notified Area Councils
,8.    Haryana            1. Municipal Corporations
,2. Municipal Councils
,3. Municipal Committees
,9.    Himachal Pradesh   1. Municipal Corporations
,2. Municipal Councils
,3. Nagar Panchayats
,10.   Jharkhand          1. Municipal Corporations
,2. Municipalities / Municipal
,Councils
,3. Town Panchayats / Notified
,Area Councils
,11.   Karnataka          1. Municipal / City Corporations
,2. Municipal / City Councils
,3. Town Panchayats
,12.   Kerala             1. Municipal Corporations
,2. Municipalities
,13.   Madhya Pradesh     1. Municipal Corporations
,2. Municipalities
,3. Nagar Panchayats
,14.   Maharashtra        1. Municipal Corporations
,2. Municipal Councils
,3. Nagar Panchayats
,15.   Manipur            1. Municipal Councils
,2. Nagar Panchayats
,16.   Meghalaya          1. Municipalities
,17.   Mizoram            1. Municipalities
,18.   Nagaland           1. Municipal Councils
,2. Town Councils
,19.   Odisha             1. Municipal Corporations
,2. Municipalities
,3. Notified Area Councils
,20.   Punjab             1. Municipal Corporations
,2. Municipalities
,3. Nagar Panchayats
,21.   Rajasthan          1. Municipal Corporations
,2. Municipal Councils
,                                 3. Municipal Boards
,22.    Sikkim                   1. Municipal Corporations
,2. Municipal Councils
,3. Nagar Panchayats
,23.    Tamil Nadu               1. Municipal Corporations
,2. Municipalities
,3. Town Panchayats
,24.    Telangana                1. Municipal Corporations
,2. Municipalities
,3. Nagar Panchayats
,25.    Tripura                  1. Municipal Councils
,2. Nagar Panchayats
,26.    Uttar Pradesh            1. Nagar Nigam
,2. Nagar Palika Parishads
,3. Nagar Panchayats
,27.    Uttarakhand              1. Nagar Nigam
,2. Nagar Palika Parishads
,3. Nagar Panchayats
,28.    West Bengal              1. Municipal Corporations
,2. Municipalities
,3. Notified Area Authorities
,
,
,NOTES AND REFERENCES
,1. ‘Local Government’ is a subject mentioned in the State List
,under the 7th Schedule of the Constitution.
,2. The bill was passed in both the Lok Sabha and the Rajya
,"Sabha in December 1992. After that, the bill was approved"
,by the required number of state legislatures. It was
,assented by the president in April 1993.
,3. A transitional area means an area which is in transition from
,a rural area to an urban area.
,"4. At present (2019), ten states of India have scheduled areas."
,"These are: Andhra Pradesh, Telangana, Jharkhand,"
,"Chhattisgarh, Gujarat, Himachal Pradesh, Madhya Pradesh,"
,"Maharashtra, Orissa and Rajasthan. Presently (2019), there"
,are a total of ten tribal areas (autonomous districts) in the
,"     four states of Assam (3), Meghalaya (3), Tripura (1) and"
,Mizoram (3).
,5.   Metropolitan area means an area having a population of 10
,"lakh or more, in one or more districts and consisting of two"
,or more municipalities or panchayats or other contiguous
,areas.
,6.   The Rural-Urban Relationship Committee (1963–66)
,headed by A.P. Jain recommended that small town area
,committees should be merged with the panchayati raj
,institutions to avoid multiplicity in the pattern of local bodies.
,7.   A cantonment area is a delimited area where the military
,forces and troops are permanently stationed.
,"8.   Report of the Thirteenth Finance Commission (2010–2015),"
,"Volume II, December 2009, P. 424–426."
,              PART-VI
,UNION TERRITORIES AND SPECIAL AREAS
,
,40. Union Territories
,41. Scheduled and Tribal
, 40       Union Territories
,
,
,
,
,U
,"nder Article 1 of the Constitution, the territory of India"
,comprises three categories of territories: (a) territories of
,the states; (b) union territories; and (c) territories that may
,"be acquired by the Government of India at any time. At present,"
,"there are twenty-nine states, seven union territories and no"
,acquired territories.
,The states are the members of the federal system in India and
,"share a distribution of power with the Centre. The union territories,"
,"on the other hand, are those areas which are under the direct"
,"control and administration of the Central government. Hence, they"
,"are also known as ‘centrally administered territories’. ‘In this way,"
,existence of these territories constitutes a conspicuous departure
,from federalism in India; the Government of India is plainly unitary
,in so far as the relationship between New Delhi and these Central
,enclaves is concerned’1 .
, CREATION OF UNION TERRITORIES
,
,"During the British Rule, certain areas were constituted as"
,"‘scheduled districts’ in 1874. Later, they came to be known as"
,"‘chief commissioners provinces’. After independence, they were"
,placed in the category of Part ‘C’ States and Part ‘D’ Territories2.
,"In 1956, they were constituted as the ‘union territories’ by the 7th"
,Constitutional Amendment Act (1956) and the States
,"Reorganisation Act (1956). Gradually, some of these union"
,"territories have been elevated to statehood. Thus, Himachal"
,"Pradesh, Manipur, Tripura, Mizoram, Arunachal Pradesh and Goa,"
,which are states today were formerly union territories. On the
,"other hand, the territories that were acquired from the Portuguese"
,"(Goa, Daman and Diu, and Dadra and Nagar Haveli) and the"
,French (Puducherry) were constituted as the union territories.
,"At present, there are nine Union Territories. They are (along"
,with the year of creation): (1) Andaman and Nicobar Islands–
,"1956, (2) Delhi–1956, (3) Lakshadweep–1956, (4) Dadra and"
,"Nagar Haveli–1961, (5) Daman and Diu–1962, (6) Puducherry–"
,"1962, (7) Chandigarh–1966, (8) Jammu and Kashmir–2019 and"
,"(9) Ladakh–2019. Till 1973, Lakshadweep was known by the"
,"name of Laccadive, Minicoy and Amindivi Islands. In 1992, Delhi"
,was redesignated as the National Capital Territory of Delhi. Till
,"2006, Puducherry was known as Pondicherry."
,The union territories have been created for a variety of reasons.
,These are mentioned below3 :
,1. Political and administrative consider-ation–Delhi and
,Chandigarh.
,"2. Cultural distinctiveness–Puducherry, Dadra and Nagar"
,"Haveli, and Daman and Diu."
,3. Strategic importance–Andaman and Nicobar Islands and
,Lakshadweep.
,4. Special treatment and care of the backward and tribal
,"people–Mizoram, Manipur, Tripura and Arunachal Pradesh"
,which later became states.
,"In 2019, the erstwhile state of Jammu and Kashmir was"
,"bifurcated into two separate union territories, namely, the Union"
,"territory of Jammu and Kashmir, and the Union territory of Ladakh."
,"While introducing the Jammu and Kashmir Reorganisation Bill,"
,"2019, in the Parliament, the central government gave the following"
,reasons for the creation of these two new union territories:
,1. The Ladakh division of the state of Jammu and Kashmir has
,a large area but is sparsely populated with a very difficult
,terrain. There has been a long pending demand of people of
,"Ladakh, to give it the status of a Union territory to enable"
,them to realize their aspirations. The Union territory of
,Ladakh will be without a legislature.
,"2. Further, keeping in view the prevailing internal security"
,"situation, fuelled by cross border terrorism in the existing"
,"state of Jammu and Kashmir, a separate Union territory for"
,Jammu and Kashmir is being created. The Union territory of
,Jammu and Kashmir will be with a legislature.
, ADMINISTRATION OF UNION TERRITORIES
,
,Articles 239 to 241 in Part VIII of the Constitution deal with the
,union territories. Even though all the union territories belong to
,"one category, there is no uniformity in their administrative system."
,Every union territory is administered by the President acting
,through an administrator appointed by him. An administrator of a
,union territory is an agent of the President and not head of state
,like a governor. The President can specify the designation of an
,administrator; it may be Lieutenant Governor or Chief
,"Commissioner or Administrator. At present, it is Lieutenant"
,"Governor in the case of Delhi, Puducherry, Andaman and Nicobar"
,"Islands, Jammu and Kashmir and Ladakh and Administrator in the"
,"case of Chandigarh, Dadra and Nagar Haveli, Daman and Diu"
,and Lakshadweep. The President can also appoint the governor
,of a state as the administrator of an adjoining union territory. In
,"that capacity, the governor is to act independently of his council of"
,ministers.
,"The Union Territories of Puducherry (in 1963), Delhi (in 1992)"
,and Jammu and Kashmir (in 2019) are provided with a legislative
,assembly4 and a council of ministers headed by a chief minister.
,The remaining six union territories do not have such popular
,"political institutions. But, the establishment of such institutions in"
,the union territories does not diminish the supreme control of the
,president and Parliament over them.
,The Parliament can make laws on any subject of the three lists
,(including the State List) for the union territories. This power of
,"Parliament also extends to Puducherry, Delhi and Jammu and"
,"Kashmir, which have their own local legislatures. This means that,"
,the legislative power of Parliament for the union territories on
,subjects of the State List remain unaffected even after
,"establishing a local legislature for them. But, the legislative"
,assembly of Puducherry can also make laws on any subject of the
,"State List and the Concurrent List. Similarly, the legislative"
,assembly of Delhi can make laws on any subject of the State List
,"(except public order, police and land) and the Concurrent List."
,"Likewise, the legislative assembly of Jammu and Kashmir can"
,make laws on any subject of the State List (except public order
,and police) and the Concurrent List.
,"The President can make regulations for the peace, progress"
,"and good government of the Andaman and Nicobar Islands,"
,"Lakshadweep, Dadra and Nagar Haveli, Daman and Diu and"
,"Ladakh. In the case of Puducherry also, the President can"
,legislate by making regulations but only when the assembly is
,suspended or dissolved. A regulation made by the President has
,the same force and effect as an act of Parliament and can also
,repeal or amend any act of Parliament in relation to these union
,territories.
,The Parliament can establish a high court for a union territory
,or put it under the jurisdiction of the high court of adjacent state.
,Delhi is the only union territory that has a high court of its own
,(since 1966). The Bombay High Court has got jurisdiction over
,"two union territo-ries–Dadra and Nagar Haveli, and Daman and"
,"Diu. Andaman and Nocobar Islands, Chandigarh, Lakshadweep"
,"and Puducherry are placed under the Calcutta, Punjab and"
,"Haryana, Kerala, and Madras High Courts respectively. The"
,Jammu and Kashmir High Court is the common high court for the
,"two union territories of Jammu and Kashmir, and Ladakh."
,The Constitution does not contain any separate provisions for
,"the administration of acquired territories. But, the constitutional"
,provisions for the administration of union territories also apply to
,the acquired territories.
, SPECIAL PROVISIONS FOR DELHI
,
,The 69th Constitutional Amendment Act of 19915 provided a
,"special status to the Union Territory of Delhi, and redesignated it"
,the National Capital Territory of Delhi and designated the
,administrator of Delhi as the lieutenant (lt.) governor. It created a
,legislative assembly and a council of ministers for Delhi.
,"Previously, Delhi had a metropolitan council and an executive"
,council.
,"The strength of the assembly is fixed at 70 members, directly"
,elected by the people. The elections are conducted by the election
,commission of India. The assembly can make laws on all the
,matters of the State List and the Concurrent List except the three
,"matters of the State List, that is, public order, police and land. But,"
,the laws of Parliament prevail over those made by the Assembly.
,The strength of the council of ministers is fixed at ten per cent
,"of the total strength of the assembly, that is, seven–one chief"
,minister and six other ministers. The chief minister is appointed by
,the President (not by the lt. governor). The other ministers are
,appointed by the president on the advice of the chief minister. The
,ministers hold office during the pleasure of the president. The
,council of ministers is collectively responsible to the assembly.
,The council of ministers headed by the chief minister aid and
,advise the lt. governor in the exercise of his functions except in so
,far as he is required to act in his discretion. In the case of
,"difference of opinion between the lt. governor and his ministers,"
,the lt. governor is to refer the matter to the president for decision
,and act accordingly.
,When a situation arises in which the administration of the
,territory cannot be carried on in accordance with the above
,"provisions, the president can suspend their (above provisions)"
,operation and make the necessary incidental or consequential
,"provisions for administering the territory. In brief, in case of failure"
,"of constitutional machinery, the president can impose his rule in"
,the territory. This can be done on the report of the lt. governor or
,otherwise. This provision resembles Article 356 which deals with
,the imposition of President’s Rule in the states.
,   The lt. governor is empowered to promulgate ordinances during
,recess of the assembly. An ordinance has the same force as an
,act of the assembly. Every such ordinance must be approved by
,the assembly within six weeks from its reassembly. He can also
,"withdraw an ordinance at any time. But, he cannot promulgate an"
,"ordinance when the assembly is dissolved or suspended. Further,"
,no such ordinance can be promulgated or withdrawn without the
,prior permission of the President.
, ADVISORY COMMITTEES OF UNION TERRITORIES
,
,Under the Government of India (Allocation of Business) Rules
,"1961, Ministry of Home Affairs is the nodal ministry for all matters"
,"of Union Territories relating to legislation, finance and budget,"
,services and appointment of Lt. Governors and Administrators.
,All the six UTs without legislature (Andaman and Nicobar
,"Islands, Chandigarh, Daman and Diu, Dadra and Nagar Haveli,"
,Lakshadweep and Ladakh) have the forum of Home Minister’s
,Advisory Committee (HMAC)/Administrator’s Advisory Committee
,"(AAC). While HMAC is chaired by the Union Home Minister, AAC"
,is chaired by the Administrator of the concerned UTs. The
,Member of Parliament and elected members from the local bodies
,e.g. District Panchayats and Municipal Council of the respective
,UTs are members of these committees among others. The
,Committee discusses the general issues relating to social and
,economic development of the UTs.6
,
,Table 40.1 Administrative System of Union Territories at a Glance
,Union            Executive       Legislature Judiciary
,Territories
,1. Andaman and      Lt. Governor         –        Under Calcutta
,Nicobar                                        High Court
,Islands
,2. Chandigarh       Administrator        –        Under Punjab and
,Haryana High
,Court
,3. Dadra and        Administrator        –        Under Bombay
,Nagar Haveli                                   High Court
,4. Daman and        Administrator        –        Under Bombay
,Diu                                            High Court
,5. Delhi            (a) Lt.         Legislative   Separate High
,Governor        Assembly      Court
,(b) Chief
,minister
,                    (c) Council of
,ministers
,6. Lakshadweep      Administrator          –       Under Kerala
,High Court
,7. Puducherry       (a) Lt.        Legislative     Under Madras
,Governor       Assembly        High Court
,(b) Chief
,minister
,(c) Council of
,ministers
,8. Jammu and        (a) Lt.        Legislative     Under Jammu
,Kashmir          Governor       Assembly        and Kashmir High
,(b) Chief                      Court
,Minister
,(c) Council of
,Ministers
,9. Ladakh           Lt. Governor           –       Under Jammu
,and Kashmir High
,Court
,Note: The Governor of Punjab is concurrently the Administrator of
,Chandigarh. The Administrator of Dadra and Nagar Haveli is
,concurrently the Administrator of Daman and Diu. Lakshadweep
,has a separate Administrator7 .
,
,Table 40.2 Comparing States and Union Territories
,States                               Union Territories
,1. Their relationship with           1. Their relationship with
,Centre is federal.                   Centre is unitary.
,2. They share a distribution of      2. They are under the direct
,power with the Centre.               control and administration of
,the Centre.
,3. They have autonomy.               3. They do not have any
,autonomy.
,4. There is uniformity in their      4. There is no uniformity in
,   administrative set-up.             their administrative set-up.
,5. Their executive head is        5. Their executive head is
,known as governor.                known by various designa-
,tions–administrator or
,lieutenant governor or chief
,commissioner.
,6. A governor is a                6. An administrator is an agent
,constitutional head of the        of the president.
,state.
,7. Parliament cannot make        7. Parliament can make laws
,laws on the subjects of the      on any subject of the three
,state list in relation to the    lists the state list in relation
,states except under              to the states except under in
,extraordinary circumstances.     relation to the union
,territories.
,
,Table 40.3 Articles Related to Union Territories at a Glance
,Article No. Subject-matter
,239.     Administration of Union territories
,239A.    Creation of local Legislatures or Council of
,Ministers or both for certain Union territories
,239AA. Special provisions with respect to Delhi
,239AB. Provision in case of failure of constitutional
,machinery
,239B.    Power of administrator to promulgate
,Ordinances during recess of Legislature
,240.     Power of President to make regulations for
,certain Union territories
,241.     High Courts for Union territories
,242.     Coorg (Repealed)
,
,
,NOTES AND REFERENCES
,"1. S.R. Maheshwari, State Governments in India,"
,"Macmillan, 2000 Edition, p. 131."
,"2. In 1950, the constitution contained a four-fold"
,classification of the states and territories of the Indian
,"Union - Part A, Part B and Part C states and Part D"
,territories.
,"3. J.C. Johari : Indian Government and Politics, Vishal,"
,"volume II, 13th Edition, 2001, p. 499."
,4. The Assembly of Puducherry consists of 30 members
,while that of Delhi 70 members and that of Jammu and
,Kashmir 83 members.
,5. With effect from 1 February 1992.
,"6. Annual Report 2018–19, Ministry of Home Affairs,"
,"Government of India, p. 70."
,"7. India 2019: A Reference Annual, Publications Division,"
,"Government of India, p. 47."
, 41       Scheduled and Tribal Areas
,
,
,
,
,A
,rticle 244 in Part X of the Constitution envisages a special
,system of administration for certain areas designated as
,‘scheduled areas’ and ‘tribal areas’. The Fifth Schedule of
,the Constitution deals with the administration and control of
,scheduled areas and scheduled tribes in any state except the four
,"states of Assam, Meghalaya, Tripura and Mizoram1. The Sixth"
,"Schedule of the Constitution, on the other hand, deals with the"
,administration of the tribal areas in the four northeastern states of
,"Assam, Meghalaya, Tripura and Mizoram."
, ADMINISTRATION OF SCHEDULED AREAS
,
,‘The scheduled areas are treated differently from the other areas
,in the country because they are inhabited by ‘aboriginals’ who are
,"socially and economically rather backward, and special efforts"
,"need to be made to improve their condition. Therefore, the whole"
,of the normal administrative machinery operating in a state is not
,extended to the scheduled areas and the Central government has
,somewhat greater responsibility for these areas’2 .
,The various features of administration contained in the Fifth
,Schedule are as follows:
,1. Declaration of Scheduled Areas: The president is
,empowered to declare an area to be a scheduled area. He
,"can also increase or decrease its area, alter its boundary"
,"lines, rescind such designation or make fresh orders for"
,such redesignation on an area in consultation with the
,governor of the state concerned.
,2. Executive Power of State and Centre: The executive
,power of a state extends to the scheduled areas therein. But
,the governor has a special responsibility regarding such
,areas. He has to submit a report to the president regarding
,"the administration of such areas, annually or whenever so"
,required by the president. The executive power of the Centre
,extends to giving directions to the states regarding the
,administration of such areas.
,3. Tribes Advisory Council: Each state having scheduled
,areas has to establish a tribes advisory council to advise on
,welfare and advancement of the scheduled tribes. It is to
,"consist of 20 members, three-fourths of whom are to be the"
,representatives of the scheduled tribes in the state
,legislative assembly. A similar council can also be
,established in a state having scheduled tribes but not
,"scheduled areas therein, if the president so directs."
,4. Law applicable to Scheduled Areas: The governor is
,empowered to direct that any particular act of Parliament or
,the state legislature does not apply to a scheduled area or
,apply with specified modifications and exceptions. He can
,     also make regulations for the peace and good government
,of a scheduled area after consulting the tribes advisory
,council. Such regulations may prohibit or restrict the transfer
,"of land by or among members of the scheduled tribes,"
,regulate the allotment of land to members of the scheduled
,tribes and regulate the business of money-lending in relation
,"to the scheduled tribes. Also, a regulation may repeal or"
,"amend any act of Parliament or the state legislature, which"
,"is applicable to a scheduled area. But, all such regulations"
,require the assent of the president.
,The Constitution requires the president to appoint a
,commission to report on the administration of the scheduled areas
,and the welfare of the scheduled tribes in the states. He can
,appoint such a commission at any time but compulsorily after ten
,"years of the commencement of the Constitution. Hence, a"
,commission was appointed in 1960. It was headed by U.N.
,"Dhebar and submitted its report in 1961. After four decades, the"
,second commission was appointed in 2002 under the
,chairmanship of Dilip Singh Bhuria. It submitted its report in 2004.
, ADMINISTRATION OF TRIBAL AREAS
,
,"The Constitution, under Sixth Schedule, contains special"
,provisions for the administration of tribal areas in the four north-
,"eastern states of Assam, Meghalaya, Tripura and Mizoram. The"
,rationality behind the special arrangements in respect of only
,these four states lies in the following:
,"“The tribes in Assam, Meghalaya, Tripura and Mizoram have"
,not assimilated much the life and ways of the other people in
,these states. These areas have hitherto been anthropological
,specimens. The tribal people in other parts of India have more
,or less adopted the culture of the majority of the people in
,"whose midst they live. The tribes in Assam, Meghalaya, Tripura"
,"and Mizoram, on the other hand, still have their roots in their"
,"own culture, customs and civilization. These areas are,"
,"therefore, treated differently by the Constitution and sizeable"
,amount of autonomy has been given to these people for self-
,government.3 ”
,The various features of administration contained in the Sixth
,Schedule are as follows:
,"1. The tribal areas in the four states of Assam, Meghalaya,"
,Tripura and Mizoram have been constituted as autonomous
,"districts4. But, they do not fall outside the executive authority"
,of the state concerned.
,2. The governor is empowered to organise and re-organise the
,"autonomous districts. Thus, he can increase or decrease"
,their areas or change their names or define their boundaries
,and so on.
,"3. If there are different tribes in an autonomous district, the"
,governor can divide the district into several autonomous
,regions.
,4. Each autonomous district has a district council consisting of
,"30 members, of whom four are nominated by the governor"
,and the remaining 26 are elected on the basis of adult
,franchise. The elected members hold office for a term of five
,years (unless the council is dissolved earlier) and nominated
,members hold office during the pleasure of the governor.
,       Each autonomous region also has a separate regional
,council.
,5.   The district and regional councils administer the areas under
,their jurisdiction. They can make laws on certain specified
,"matters like land, forests, canal water, shifting cultivation,"
,"village administration, inheritance of property, marriage and"
,"divorce, social customs and so on. But all such laws require"
,the assent of the governor.
,6.   The district and regional councils within their territorial
,jurisdictions can constitute village councils or courts for trial
,of suits and cases between the tribes. They hear appeals
,from them. The jurisdiction of high court over these suits and
,cases is specified by the governor.
,"7.   The district council can establish, construct or manage"
,"primary schools, dispensaries, markets, ferries, fisheries,"
,roads and so on in the district. It can also make regulations
,for the control of money lending and trading by nontribals.
,"But, such regulations require the assent of the governor."
,8.   The district and regional councils are empowered to assess
,and collect land revenue and to impose certain specified
,taxes.
,9.   The acts of Parliament or the state legislature do not apply
,to autonomous districts and autonomous regions or apply
,with specified modifications and exceptions5 .
,10.    The governor can appoint a commission to examine and
,report on any matter relating to the administration of the
,autonomous districts or regions. He may dissolve a district
,or regional council on the recommendation of the
,commission.
,
,Table 41.1 Tribal Areas at a Glance (2019)
,States                 Tribal Areas
,1.     Assam          1.      The North Cachar Hills District.
,2.      The Karbi Anglong District.
,3.      The Bodoland Territorial Areas
,District.
,  2.     Meghalaya        1.      Khasi Hills District.
,2.      Jaintia Hills District.
,3.      The Garo Hills District.
,3.     Tripura                  Tripura Tribal Areas District.
,4.     Mizoram          1.      The Chakma District.
,2.      The Mara District.
,3.      The Lai District.
,
,Table 41.2 Articles Related to Scheduled and Tribal Areas at a
,Glance
,Article No. Subject-matter
,244.        Administration of Scheduled Areas and Tribal
,Areas
,244A.          Formation of an autonomous state comprising
,certain tribal areas in Assam and creation of local
,legislature or Council of Ministers or both therefore
,339.        Control of the Union over the administration of
,Scheduled Areas and the welfare of Scheduled
,Tribes
,
,Table 41.3 Parliamentary Laws Related to the Fifth and Sixth
,Schedules of the Constitution
,Sl. Acts                         Provisions
,No.
,1.     Lushai Hills District    Renamed the Lushai Hills District
,(Change of Name)         as the Mizo District. The Lushai
,"Act, 1954                Hills District was one of the six"
,autonomous districts in the tribal
,areas of Assam specified in the
,Sixth Schedule of the Constitution.
,2.     Government of            Amended the Sixth Schedule of the
,Union Territories        constitution to include certain
,provisions with respect to the
,"     (Amendment) Act,        autonomous districts and"
,1971                    autonomous regions of the Union
,Territory of Mizoram.
,3.   Repealing and      Repealed certain enactments and
,"Amending Act, 1974 amended certain other enactments."
,It also substituted the words “cattle
,pounds” for “cattle ponds” in the
,Sixth Schedule of the Constitution.
,4.   Fifth Schedule to the   Empowered the President of India:
,Constitution            (i) to increase the area of any
,"(Amendment) Act,        Scheduled Area in a State after"
,1976                    consultation with the Governor of
,that state; and (ii) to rescind any
,order made for the designation of
,an area in any state to be a
,"Scheduled Area, or in consultation"
,with the Governor of the State
,"concerned, make fresh order"
,redefining the area which is to be a
,Scheduled Area.
,5.   Sixth Schedule to       Included certain modifications in the
,the Constitution        Sixth Schedule of the Constitution
,"(Amendment) Act,        in its application to the States of"
,1988                    Tripura and Mizoram. These (i)
,provided that the Governors shall
,act in their discretion in the
,discharge of some of their
,functions; (ii) made provisions
,relating to the application of Acts of
,Parliament and the State
,Legislatures to autonomous
,districts and autonomous regions;
,and (iii) provided for a time-limit in
,making over the share of royalties
,to the District Councils.
,6.   Sixth Schedule to       Included certain modifications in the
,the Constitution        Sixth Schedule of the Constitution
,"     (Amendment) Act,    in its application to the State of"
,1995                Assam. These (i) provided that the
,District Council constituted for the
,North Cachar Hills District shall be
,called as the North Cachar Hills
,Autonomous Council and the
,District Council constituted for the
,Karbi-Anglong District shall be
,called as the Karbi-Anglong
,Autonomous Council; (ii) made
,provisions for the additional powers
,of the North Cachar Hills
,Autonomous Council and the Karbi-
,Anglong Autonomous Council to
,make laws; and (iii) made it
,mandatory for the Governor to
,consult the North Cachar Hills
,Autonomous Council or the Karbi-
,"Anglong Autonomous Council, as"
,"the case may be, in the exercise of"
,his discretionary powers.
,7.   Sixth Schedule to   Included certain modifications in the
,the Constitution    Sixth Schedule of the Constitution
,"(Amendment) Act,    in its application to the State of"
,2003                Assam. This was done to meet the
,aspirations of the Bodos in Assam
,and in pursuance of the
,Memorandum of Settlement signed
,"between the Central Government,"
,the Government of Assam and
,Bodo Liberation Tigers (BLT) on
,10–02-2003 for a durable solution
,"to the Bodo issues. In this context,"
,the Act made the following
,provisions : (i) specified the
,Bodoland Territorial Areas District in
,the list of the tribal areas of the
,State of Assam; (ii) created an
,                           autonomous selfgoverning body
,known as the Bodoland Territorial
,Council (BTC) within the state of
,Assam; (iii) vested the council with
,"legislative, administrative and"
,financial powers in respect of
,specified subjects; and (iv) provided
,for adequate safeguards for the
,non-tribals in the BTC area.
,
,
,NOTES AND REFERENCES
,"1. At present (2019), ten states of India have scheduled"
,"areas. These are: Andhra Pradesh, Telangana,"
,"Jharkhand, Chhattisgarh, Gujarat, Himachal Pradesh,"
,"Madhya Pradesh, Maharashtra, Odisha and Rajasthan."
,"2. M.P. Jain, Indian Constitutional Law, Wadhwa, Fourth"
,"Edition, 1987, p. 236."
,"3. Ibid, p. 237."
,"4. Presently (2019), there are a total of ten tribal areas."
,See Table 41.1.
,"5. The power of direction, in this regard, lies either with the"
,"president or governor. Thus, in the case of Assam, it lies"
,"with the Governor, both in respect of acts of Parliament"
,"or state legislature. In the case of Meghalaya, Tripura"
,"and Mizoram, it lies with the president in respect of acts"
,of Parliament and governor in respect of acts of state
,legislature.
,                   PART-VII
,CONSTITUTIONAL BODIES
,
,42. Election Commission
,43. Union Public Service Commission
,44. State Public Service Commission
,45. Finance Commission
,46. Goods and Services Tax Council
,47. National Commission for SCs
,48. National Commission for STs
,49. National Commission for BCs
,50. Special Officer for Linguistic Minorities
,51. Comptroller and Auditor General of India
,52. Attorney General of India
,53. Advocate General of the State
, 42       Election Commission
,
,
,
,
,T
,he Election Commission is a permanent and an
,independent body established by the Constitution of India
,directly to ensure free and fair elections in the country.
,Article 324 of the Constitution provides that the power of
,"superintendence, direction and control of elections to parliament,"
,"state legislatures, the office of president of India and the office of"
,vice-president of India shall be vested in the election commission.
,"Thus, the Election Commission is an all-India body in the sense"
,that it is common to both the Central government and the state
,governments.
,It must be noted here that the election commission is not
,concerned with the elections to panchayats and municipalities in
,"the states. For this, the Constitution of India provides for a"
,separate State Election Commission1 .
, COMPOSITION
,
,Article 324 of the Constitution has made the following provisions
,with regard to the composition of election commission:
,1. The Election Commission shall consist of the chief election
,commissioner and such number of other election
,"commissioners, if any, as the president may from time to"
,time fix.
,2. The appointment of the chief election commissioner and
,other election commissioners shall be made by the
,president.
,"3. When any other election commissioner is so appointed, the"
,chief election commissioner shall act as the chairman of the
,election commission.
,4. The president may also appoint after consultation with the
,election commission such regional commissioners as he
,may consider necessary to assist the election commission.
,5. The conditions of service and tenure of office of the election
,commissioners and the regional commissioners shall be
,determined by the president.
,"Since its inception in 1950 and till 15 October 1989, the election"
,commission functioned as a single member body consisting of the
,"Chief Election Commissioner. On 16 October 1989, the president"
,appointed two more election commissioners to cope with the
,increased work of the election commission on account of lowering
,"of the voting age from 21 to 18 years.2 Thereafter, the Election"
,Commission functioned as a multimember body consisting of
,"three election commissioners. However, the two posts of election"
,commissioners were abolished in January 1990 and the Election
,Commission was reverted to the earlier position. Again in October
,"1993, the president appointed two more election commissioners."
,"Since then and till today, the Election Commission has been"
,functioning as a multi-member body consisting of three election
,commissioners.
,The chief election commissioner and the two other election
,"commissioners have equal powers and receive equal salary,"
,"allowances and other perquisites, which are similar to those of a"
,judge of the Supreme Court.3 In case of difference of opinion
,amongst the Chief Election Commissioner and/or two other
,"election commissioners, the matter is decided by the Commission"
,by majority.
,They hold office for a term of six years or until they attain the
,"age of 65 years, whichever is earlier. They can resign at any time"
,or can also be removed before the expiry of their term.
, INDEPENDENCE
,
,Article 324 of the Constitution has made the following provisions
,to safeguard and ensure the independent and impartial
,functioning of the Election Commission:
,1. The chief election commissioner is provided with the security
,of tenure. He cannot be removed from his office except in
,same manner and on the same grounds as a judge of the
,"Supreme Court. In other words, he can be removed by the"
,president on the basis of a resolution passed to that effect
,"by both the Houses of Parliament with special majority,"
,either on the ground of proved misbehaviour or incapacity.
,"Thus, he does not hold his office till the pleasure of the"
,"president, though he is appointed by him."
,2. The service conditions of the chief election commissioner
,cannot be varied to his disadvantage after his appointment.
,3. Any other election commissioner or a regional commissioner
,cannot be removed from office except on the
,recommendation of the chief election commissioner.
,Though the constitution has sought to safeguard and ensure
,"the independence and impartiality of the Election Commission,"
,"some flaws can be noted, viz.,"
,"1. The Constitution has not prescribed the qualifications (legal,"
,"educational, administrative or judicial) of the members of the"
,Election Commission.
,2. The Constitution has not specified the term of the members
,of the Election Commission.
,3. The Constitution has not debarred the retiring election
,commissioners from any further appointment by the
,government.
, POWERS AND FUNCTIONS
,
,The powers and functions of the Election Commission with regard
,"to elections to the Parliament, state legislatures and offices of"
,President and Vice-President can be classified into three
,"categories, viz,"
,1. Administrative
,2. Advisory
,3. Quasi-Judicial
,"In detail, these powers and functions are:"
,1. To determine the territorial areas of the electoral
,constituencies throughout the country on the basis of the
,Delimitation Commission Act of Parliament.4
,2. To prepare and periodically revise electoral rolls and to
,register all eligible voters.
,3. To notify the dates and schedules of elections and to
,scrutinise nomination papers.
,4. To grant recognition to political parties and allot election
,symbols to them.
,5. To act as a court for settling disputes related to granting of
,recognition to political parties and allotment of election
,symbols to them.
,6. To appoint officers for inquiring into disputes relating to
,electoral arrangements.
,7. To determine the code of conduct to be observed by the
,parties and the candidates at the time of elections.
,8. To prepare a roster for publicity of the policies of the political
,parties on radio and TV in times of elections.
,9. To advise the president on matters relating to the
,disqualifications of the members of Parliament.
,10. To advise the governor on matters relating to the
,disqualifications of the members of state legislature.
,"11. To cancel polls in the event of rigging, booth capturing,"
,violence and other irregularities.
,12. To request the president or the governor for requisitioning
,the staff necessary for conducting elections.
,  13. To supervise the machinery of elections throughout the
,country to ensure free and fair elections.
,14. To advise the president whether elections can be held in a
,state under president’s rule in order to extend the period of
,emergency after one year.
,15. To register political parties for the purpose of elections and
,grant them the status of national or state parties on the basis
,of their poll performance5 .
,The Election Commission is assisted by deputy election
,commissioners. They are drawn from the civil service and
,appointed by the commission with tenure system. They are
,"assisted, in turn, by the secretaries, joint secretaries, deputy"
,secretaries and under secretaries posted in the secretariat of the
,commission.
,"At the state level, the Election Commission is assisted by the"
,chief electoral officer who is appointed by the chief election
,commissioner in consultation with the state government. Below
,"this, at the district level, the collector acts as the district returning"
,officer. He appoints a returning officer for every constituency in the
,district and presiding officer for every polling booth in the
,constituency.
," VISION, MISSION AND PRINCIPLES6"
,
,Vision
,The Election Commission of India strives to be an Institution of
,"Excellence by enhancing active engagement, participation; and"
,deepening and strengthening electoral democracy in India and
,globally.
,
,Mission
,"The Election Commission of India maintains independence,"
,"integrity and autonomy; ensures accessibility, inclusiveness, and"
,"ethical participation of stakeholders; and, adopts highest"
,"standards of professionalism for delivering free, fair, and"
,transparent elections to strengthen the trust in electoral
,democracy and governance.
,
,Guiding Principles
,The Commission has laid down for itself guiding principles of good
,governance:
,"1. To uphold the values enshrined in the Constitution viz,"
,"equality, equity, impartiality, independence; and rule of law in"
,"superintendence, direction and control over the electoral"
,governance;
,"2. To conduct elections with highest standard of credibility,"
,"freeness, fairness, transparency, integrity, accountability,"
,autonomy and professionalism;
,3. To ensure participation of all eligible citizens in the electoral
,process in an inclusive voter centric and voterfriendly
,environment;
,4. To engage with political parties and all stakeholders in the
,interest of electoral process;
,5. To promote awareness about the electoral process and
,"electoral governance amongst stakeholders namely, voters,"
,"political parties, election functionaries, candidates and"
,people at large; and to enhance and strengthen confidence
,and trust in the electoral system of this country;
, 6. To develop the human resource for effective and
,professional delivery of electoral services;
,7. To build quality infrastructure for smooth conduct of electoral
,process;
,8. To adopt technology for improvement in all areas of electoral
,process;
,9. To strive for adoption of innovative practices for achieving
,excellence and overall realization of the vision and mission;
,10. To contribute towards the reinforcement of democratic
,values by maintaining and reinforcing confidence and trust of
,the people in the electoral system of the country.
,
,
,NOTES AND REFERENCES
,1. Vide 73rd and 74th Constitutional Amendment Acts of
,1992
,"2. By the 61st Constitutional Amendment Act of 1988,"
,which came into force in 1989.
,"3. In 2018, the salary of a judge of the Supreme Court had"
,been fixed at ₹2.50 lakh per month.
,4. The Parliament has made the Delimitation Commission
,"Acts in 1952, 1962, 1972 and 2002."
,"5. For details in this regard, see Chapter 69 (Political"
,Parties).
,"6. Strategic Plan 2016–2025, Election Commission of"
,"India, pp. 8–9."
, 43      Union Public Service Commission
,
,
,
,
,T
,he Union Public Service Commission (UPSC) is the central
,recruiting agency in India. It is an independent constitutional
,body in the sense that it has been directly created by the
,Constitution. Articles 315 to 323 in Part XIV of the Constitution
,"contain elaborate provisions regarding the composition, appointment"
,"and removal of members along with the independence, powers and"
,functions of the UPSC.
, COMPOSITION
,
,The UPSC consists of a chairman and other members appointed by
,"the president of India. The Constitution, without specifying the"
,strength of the Commission has left the matter to the discretion of
,"the president, who determines its composition. Usually, the"
,Commission consists of nine to eleven members including the
,"chairman. Further, no qualifications are prescribed for the"
,Commission’s membership except that one-half of the members of
,the Commission should be such persons who have held office for at
,least ten years either under the Government of India or under the
,government of a state. The Constitution also authorises the
,president to determine the conditions of service of the chairman and
,other members of the Commission.
,The chairman and members of the Commission hold office for a
,"term of six years or until they attain the age of 65 years, whichever is"
,"earlier. However, they can relinquish their offices at any time by"
,addressing their resignation to the president. They can also be
,removed before the expiry of their term by the president in the
,manner as provided in the Constitution.
,The President can appoint one of the members of the UPSC as
,an acting chairman in the following two circumstances1 :
,(a) When the office of the chairman falls vacant; or
,(b) When the chairman is unable to perform his functions due to
,absence or some other reason.
,The acting chairman functions till a person appointed as chairman
,enters on the duties of the office or till the chairman is able to
,resume his duties.
, REMOVAL
,
,The President can remove the chairman or any other member of
,UPSC from the office under the following circumstances:
,"(a) If he is adjudged an insolvent (that is, has gone bankrupt);"
,"(b) If he engages, during his term of office, in any paid employment"
,outside the duties of his office; or
,"(c) If he is, in the opinion of the president, unfit to continue in office"
,by reason of infirmity of mind or body.
,"In addition to these, the president can also remove the chairman"
,"or any other member of UPSC for misbehaviour. However, in this"
,"case, the president has to refer the matter to the Supreme Court for"
,"an enquiry. If the Supreme Court, after the enquiry, upholds the"
,"cause of removal and advises so, the president can remove the"
,"chairman or a member. Under the provisions of the Constitution, the"
,advise tendered by the Supreme Court in this regard is binding on
,"the president. During the course of enquiry by the Supreme Court,"
,the president can suspend the chairman or the member of UPSC.
,"Defining the term ‘misbehaviour’ in this context, the Constitution"
,states that the chairman or any other member of the UPSC is
,deemed to be guilty of misbehaviour if he (a) is concerned or
,interested in any contract or agreement made by the Government of
,"India or the government of a state, or (b) participates in any way in"
,the profit of such contract or agreement or in any benefit therefrom
,otherwise than as a member and in common with other members of
,an incorporated company.
, INDEPENDENCE
,
,The Constitution has made the following provisions to safeguard and
,ensure the independent and impartial functioning of the UPSC:
,(a) The chairman or a member of the UPSC can be removed from
,office by the president only in the manner and on the grounds
,"mentioned in the Constitution. Therefore, they enjoy security of"
,tenure.
,"(b) The conditions of service of the chairman or a member, though"
,"determined by the president, cannot be varied to his"
,disadvantage after his appointment.
,"(c) The entire expenses including the salaries, allowances and"
,pensions of the chairman and members of the UPSC are
,"charged on the Consolidated Fund of India. Thus, they are not"
,subject to vote of Parliament.
,(d) The chairman of UPSC (on ceasing to hold office) is not eligible
,for further employment in the Government of India or a state2 .
,(e) A member of UPSC (on ceasing to hold office) is eligible for
,appointment as the chairman of UPSC or a State Public Service
,"Commission (SPSC), but not for any other employment in the"
,Government of India or a state3 .
,(f) The chairman or a member of UPSC is (after having completed
,"his first term) not eligible for reappointment to that office (i.e.,"
,not eligible for second term).
, FUNCTIONS
,
,The UPSC performs the following functions:
,(a) It conducts examinations for appointments to the all-India
,"services, Central services and public services of the centrally"
,administered territories.
,(b) It assists the states (if requested by two or more states to do
,so) in framing and operating schemes of joint recruitment for
,any services for which candidates possessing special
,qualifications are required.
,(c) It serves all or any of the needs of a state on the request of the
,state governor and with the approval of the president of India.
,(d) It is consulted on the following matters related to personnel
,management:
,(i) All matters relating to methods of recruitment to civil servic
,and for civil posts.
,(ii) The principles to be followed in making appointments to c
,services and posts and in making promotions and transfers fro
,one service to another.
,(iii) The suitability of candidates for appointments to civil servic
,and posts; for promotions and transfers from one service
,another; and appointments by transfer or deputation. T
,concerned departments make recommendations for promotio
,and request the UPSC to ratify them.
,(iv) All disciplinary matters affecting a person serving under t
,Government of India in a civil capacity including memorials
,petitions relating to such matters. These include:
,– Censure (Severe disapproval)
,– Withholding of increments
,– Withholding of promotions
,– Recovery of pecuniary loss
,– Reduction to lower service or rank (Demotion)
,– Compulsory retirement
,– Removal from service
,– Dismissal from service4
,(v) Any claim for reimbursement of legal expenses incurred by
,civil servant in defending legal proceedings instituted again
,him in respect of acts done in the execution of his offic
,duties.
,      (vi) Any claim for the award of a pension in respect of injuri
,sustained by a person while serving under the Government
,India and any question as to the amount of any such award.
,(vii) Matters of temporary appointments for period exceeding o
,year and on regularisation of appointments.
,(viii) Matters related to grant of extension of service and r
,employment of certain retired civil servants.
,(ix) Any other matter related to personnel management.
,The Supreme Court has held that if the government fails to
,"consult UPSC in the matters (mentioned above), the aggrieved"
,"public servant has no remedy in a court. In other words, the court"
,held that any irregularity in consultation with the UPSC or acting
,without consultation does not invalidate the decision of the
,"government. Thus, the provision is directory and not mandatory."
,"Similarly, the court held that a selection by the UPSC does not"
,"confer any right to the post upon the candidate. However, the"
,government is to act fairly and without arbitrariness or mala fides.
,The additional functions relating to the services of the Union can
,be conferred on UPSC by the Parliament. It can also place the
,"personnel system of any authority, corporate body or public"
,institution within the jurisdiction of the UPSC. Hence the jurisdiction
,of UPSC can be extended by an act made by the Parliament.
,"The UPSC presents, annually, to the president a report on its"
,performance. The President places this report before both the
,"Houses of Parliament, along with a memorandum explaining the"
,cases where the advice of the Commission was not accepted and
,the reasons for such non-acceptance. All such cases of non-
,acceptance must be approved by the Appointments Committee of
,the Union cabinet. An individual ministry or department has no power
,to reject the advice of the UPSC.
, LIMITATIONS
,
,The following matters are kept outside the functional jurisdiction of
,"the UPSC. In other words, the UPSC is not consulted on the"
,following matters:
,(a) While making reservations of appointments or posts in favour of
,any backward class of citizens.
,(b) While taking into consideration the claims of scheduled castes
,and scheduled tribes in making appointments to services and
,posts.
,(c) With regard to the selections for chairmanship or membership
,"of commissions or tribunals, posts of the highest diplomatic"
,nature and a bulk of group C and group D services.
,(d) With regard to the selection for temporary or officiating
,appointment to a post if the person appointed is not likely to
,hold the post for more than a year.
,"The president can exclude posts, services and matters from the"
,"purview of the UPSC. The Constitution states that the president, in"
,respect to the all-India services and Central services and posts may
,"make regulations specifying the matters in which, it shall not be"
,necessary for UPSC to be consulted. But all such regulations made
,by the president shall be laid before each House of Parliament for at
,least 14 days. The Parliament can amend or repeal them.
, ROLE
,The Constitution visualises the UPSC to be the ‘watch-dog of merit
,system’ in India. It is concerned with the recruitment to the all-India
,services and Central services–group A and group B and advises the
,"government, when consulted, on promotion and disciplinary matters."
,"It is not concerned with the classification of services, pay and service"
,"conditions, cadre management, training, and so on. These matters"
,are handled by the Department of Personnel and Training–one of the
,"three departments of the Ministry of Personnel, Public Grievances"
,"and Pensions5. Therefore, UPSC is only a central recruiting agency"
,while the Department of Personnel and Training is the central
,personnel agency in India.
,"The role of UPSC is not only limited, but also recommendations"
,"made by it are only of advisory nature and hence, not binding on the"
,government. It is upto the Union government to accept or reject that
,advise. The only safeguard is the answerability of the government to
,the Parliament for departing from the recommendation of the
,"Commission. Further, the government can also make rules which"
,regulate the scope of the advisory functions of UPSC6 .
,The emergence of Central Vigilance Commission (CVC) in 1964
,affected the role of UPSC in disciplinary matters. This is because
,both are consulted by the government while taking disciplinary action
,against a civil servant. The problem arises when the two bodies
,"tender conflicting advise. However, the UPSC, being an independent"
,"constitutional body, has an edge over the CVC, which is created by"
,an executive resolution of the Government of India and conferred a
,statutory status in October 2003.
,
,Table 43.1 Articles Related to UPSC at a Glance
,Article No.   Subject-matter
,315        Public Service Commissions for the Union and for
,the states
,316        Appointment and term of office of members
,317        Removal and suspension of a member of a Public
,Service Commission
,  318      Power to make regulations as to conditions of
,service of members and staff of the Commission
,319      Prohibition as to the holding of office by members of
,commission on ceasing to be such members
,320      Functions of Public Service Commissions
,321      Power to extend functions of Public Service
,Commissions
,322      Expenses of Public Service Commissions
,323      Reports of Public Service Commissions
,
,
,NOTES AND REFERENCES
,1. Added by the 15th Amendment Act of 1963.
,"2. In 1979, the Supreme Court upheld the validity of"
,"appointment of A.R. Kidwai, a former Chairman of UPSC,"
,as the governor of Bihar. It ruled that the office of the
,governor is a ‘constitutional office’ and not an employment
,under the government.
,"3. When a member of UPSC is appointed as its chairman, he"
,holds the new office for six years or until the age of
,"superannuation, whichever is earlier."
,4. The difference between removal and dismissal is that the
,former does not disqualify for future employment under the
,government while the latter disqualifies for future
,employment under the government.
,"5. In 1985, a new full-fledged Ministry of Personnel, Public"
,Grievances and Pensions was created with three separate
,departments. These are Department of Personnel and
,"Training, Department of Administrative Reforms and Public"
,"Grievances, and Department of Pensions and Pensioners’"
,Welfare.
,6. Such Rules are known as the UPSC (Exemption From
,Consultation) Regulations.
, 44      State Public Service Commission
,
,
,
,
,P
,arallel to the Union Public Service Commission (UPSC) at the
,"Centre, there is a State Public Service Commission (SPSC)"
,"in a state. The same set of Articles (i.e., 315 to 323 in Part"
,"XIV) of the Constitution also deal with the composition, appointment"
,"and removal of members, power and functions and independence of"
,a SPSC.
, COMPOSITION
,
,A State Public Service Commission consists of a chairman and other
,members appointed by the governor of the state. The Constitution
,does not specify the strength of the Commission but has left the
,"matter to the discretion of the Governor. Further, no qualifications are"
,prescribed for the commission’s membership except that one-half of
,the members of the commission should be such persons who have
,held office for at least ten years either under the government of India
,or under the Government of a state. The Constitution also authorises
,the governor to determine the conditions of service of the chairman
,and members of the Commission.
,The chairman and members of the Commission hold office for a
,"term of six years or until they attain the age of 62 years1 , whichever"
,"is earlier (in the case of UPSC, the age limit is 65 years). However,"
,they can relinquish their offices at any time by addressing their
,resignation to the governor.
,The governor can appoint one of the members of the SPSC as an
,acting chairman in the following two circumstances2 :
,(a) When the office of the chairman falls vacant; or
,(b) When the chairman is unable to perform his functions due to
,absence or some other reason.
,The acting chairman functions till the person appointed as
,chairman enters on the duties of the office or till the chairman is able
,to resume his duties.
, REMOVAL
,
,Although the chairman and members of a SPSC are appointed by
,"the governor, they can be removed only by the president (and not by"
,the governor). The president can remove them on the same grounds
,and in the same manner as he can remove a chairman or a member
,"of the UPSC. Thus, he can remove him under the following"
,circumstances:
,"(a) If he is adjudged an insolvent (i.e., has gone bankrupt); or"
,"(b) If he engages, during his term of office, in any paid employment"
,outside the duties of his office; or
,"(c) If he is, in the opinion of the president, unfit to continue in office"
,by reason of infirmity of mind or body3 .
,"In addition to these, the president can also remove the chairman"
,"or any other member of SPSC for misbehaviour. However, in this"
,"case, the president has to refer the matter to the Supreme Court for"
,"an enquiry. If the Supreme Court, after the enquiry, upholds the"
,"cause of removal and advises so, the president can remove the"
,"chairman or a member. Under the provisions of the Constitution, the"
,advise tendered by the Supreme Court in this regard is binding on
,"the president. However, during the course of enquiry by the Supreme"
,"Court, the governor can suspend the concerned chairman or"
,"member, pending the final removal order of the president on receipt"
,of the report of the Supreme Court.
,"Further, the Constitution has also defined the term ‘misbehaviour’"
,in this context. The Constitution states that the chairman or any other
,"member of a SPSC is deemed to be guilty of misbehaviour, if he (a)"
,is concerned or interested in any contract or agreement made by the
,"Government of India or the government of a state, or (b) participates"
,in any way in the profit of such contract or agreement or in any
,benefit therefrom otherwise than as a member and in common with
,other members of an incorporated company.
, INDEPENDENCE
,
,"As in the case of UPSC, the Constitution has made the following"
,provisions to safeguard and ensure the independent and impartial
,functioning of a SPSC:
,(a) The chairman or a member of a SPSC can be removed from
,office by the president only in the manner and on the grounds
,"mentioned in the Constitution. Therefore, they enjoy the"
,security of tenure.
,"(b) The conditions of service of the chairman or a member, though"
,"determined by the governor, cannot be varied to his"
,disadvantage after his appointment.
,"(c) The entire expense including the salaries, allowances and"
,pensions of the chairman and members of a SPSC are charged
,"on the consolidated fund of the state. Thus, they are not subject"
,to vote of the state legislature.
,(d) The chairman of a SPSC (on ceasing to hold office) is eligible
,for appointment as the chairman or a member of the UPSC or
,"as the chairman of any other SPSC, but not for any other"
,employment under the Government of India or a state.
,(e) A member of a SPSC (on ceasing to hold office) is eligible for
,"appointment as the chairman or a member of the UPSC, or as"
,"the chairman of that SPSC or any other SPSC, but not for any"
,other employment under the Government of India or a state.
,(f) The chairman or a member of a SPSC is (after having
,completed his first term) not eligible for reappointment to that
,"office (that is, not eligible for second term)."
, FUNCTIONS
,
,A SPSC performs all those functions in respect of the state services
,as the UPSC does in relation to the Central services:
,(a) It conducts examinations for appointments to the services of
,the state.
,(b) It is consulted on the following matters related to personnel
,management:
,(i) All matters relating to methods of recruitment to civil servic
,and for civil posts.
,(ii) The principles to be followed in making appointments to c
,services and posts and in making promotions and transfers fro
,one service to another.
,(iii) The suitability of candidates for appointments to civil servic
,and posts; for promotions and transfers from one service
,another; and appointments by transfer or deputation. T
,concerned departments make recommendations for promotio
,and request the SPSC to ratify them.
,(iv) All disciplinary matters affecting a person serving under t
,government of the state in a civil capacity including memorials
,petitions relating to such matters. These include:
,– Censure (severe disapproval)
,– Withholding of increments
,– Withholding of promotions
,– Recovery of pecuniary loss
,– Reduction to lower service or rank (demotion)
,– Compulsory retirement
,– Removal from service
,– Dismissal from service4
,(v) Any claim for reimbursement of legal expenses incurred by
,civil servant in defending legal proceedings instituted again
,him in respect of acts done in the execution of his official dutie
,(vi) Any claim for the award of a pension in respect of injuri
,sustained by a person while serving under the government
,the state and any question as to the amount of any such awar
,(vii) Any other matter related to the personnel management.
,The Supreme Court has held that if the government fails to
,"consult the SPSC in these matters, the aggrieved public servant has"
,"no remedy in a court. In other words, the court held that any"
,irregularity in consultation with the SPSC or acting without
,consultation does not invalidate the decision of the government.
,"Thus, the provision is directory and not mandatory. Similarly, the"
,court held that a selection by the SPSC does not confer any right to
,"the post upon the candidate. However, the government is to act fairly"
,and without arbitrariness or malafides.
,The additional functions relating to the services of the state can
,be conferred on SPSC by the state legislature. It can also place the
,"personnel system of any local authority, corporate body or public"
,institution within the jurisdiction of the SPSC. Hence the jurisdiction
,of SPSC can be extended by an Act made by the state legislature.
,"The SPSC presents, annually, to the governor a report on its"
,performance. The governor places this report before both the
,"Houses of the state legislature, along with a memorandum"
,explaining the cases where the advice of the Commission was not
,accepted and the reasons for such non-acceptance.
, LIMITATIONS
,
,The following matters are kept outside the functional jurisdiction of
,"the SPSC. In other words, the SPSC is not consulted on the"
,following matters:
,(a) While making reservations of appointments or posts in favour of
,any backward class of citizens.
,(b) While taking into consideration the claims of scheduled castes
,and scheduled tribes in making appointments to services and
,posts.
,"The governor can exclude posts, services and matters from the"
,"purview of the SPSC. The Constitution states that the governor, in"
,respect to the state services and posts may make regulations
,"specifying the matters in which, it shall not be necessary for SPSC to"
,be consulted. But all such regulations made by the governor shall be
,laid before each House of the state legislature for at least 14 days.
,The state legislature can amend or repeal them.
, ROLE
,The Constitution visualises the SPSC to be the ‘watchdog of merit
,system’ in the state. It is concerned with the recruitment to the state
,"services and advises the government, when consulted, on promotion"
,and disciplinary matters. It is not concerned with the classification of
,"services, pay and service conditions, cadre management, training"
,and so on. These matters are handled by the Department of
,"Personnel or the General Administration Department. Therefore, the"
,SPSC is only a central recruiting agency in the state while the
,Department of Personnel or the General Administration Department
,is the central personnel agency in the state.
,"The role of SPSC is not only limited, but also recommendations"
,"made by it are only of advisory nature and hence, not binding on the"
,government. It is up to the state government to accept or reject that
,advice. The only safeguard is the answerability of the government to
,the state legislature for departing from the recommendation of the
,"Commission. Further, the government can also make rules which"
,regulate the scope of the advisory functions of SPSC5 .
,"Also, the emergence of State Vigilance Commission (SVC) in"
,1964 affected the role of SPSC in disciplinary matters. This is
,because both are consulted by the government while taking
,disciplinary action against a civil servant. The problem arises when
,"the two bodies tender conflicting advice. However, the SPSC, being"
,"an independent constitutional body, has an edge over the SVC."
,"Finally, the SPSC is consulted by the governor while framing rules"
,for appointment to judicial service of the state other than the posts of
,"district judges. In this regard, the concerned state high court is also"
,consulted.
, JOINT STATE PUBLIC SERVICE COMMISSION
,
,The Constitution makes a provision for the establishment of a Joint
,State Public Service Commission (JSPSC) for two or more states.
,While the UPSC and the SPSC are created directly by the
,"Constitution, a JSPSC can be created by an act of Parliament on the"
,"request of the state legislatures concerned. Thus, a JSPSC is a"
,statutory and not a constitutional body. The two states of Punjab and
,"Haryana had a JSPSC for a short period, after the creation of"
,Haryana out of Punjab in 1966.
,The chairman and members of a JSPSC are appointed by the
,president. They hold office for a term of six years or until they attain
,"the age of 62 years, whichever is earlier. They can be suspended or"
,removed by the president. They can also resign from their offices at
,any time by submitting their resignation letters to the president.
,The number of members of a JSPSC and their conditions of
,service are determined by the president.
,A JSPSC presents its annual performance report to each of the
,concerned state governors. Each governor places the report before
,the state legislature.
,The UPSC can also serve the needs of a state on the request of
,the state governor and with the approval of the president.
,"As provided by the Government of India Act of 1919, a Central"
,Public Service Commission was set up in 1926 and entrusted with
,the task of recruiting civil servants. The Government of India Act of
,1935 provided for the establishment of not only a Federal Public
,Service Commission but also a Provincial Public Service
,Commission and Joint Public Service Commission for two or more
,provinces.
,
,Table 44.1 Articles Related to SPSC at a Glance
,Article No.   Subject-matter
,315        Public Service Commissions for the Union and for
,the states
,316        Appointment and term of office of member
,317        Removal and suspension of a member of a Public
,Service Commission
,  318      Power to make regulations as to conditions of
,service of members and staff of the Commission
,319      Prohibition as to the holding of office by members of
,commission on ceasing to be such members
,320      Functions of Public Service Commissions
,321      Power to extend functions of Public Service
,Commissions
,322      Expenses of Public Service Commissions
,323      Reports of Public Service Commissions
,
,
,NOTES AND REFERENCES
,"1. Originally, it was 60 years. The 41st Amendment Act of"
,1976 raised it to 62 years.
,2. Added by the 15th Amendment Act of 1963.
,"3. In 1993, the Supreme Court ruled that appointment of a"
,university professor (known to be blind) as a member of a
,SPSC cannot be set aside on the ground of infirmity of
,body or mind.
,4. The difference between removal and dismissal is that the
,former does not disqualify for future employment under the
,government while the latter disqualifies for future
,employment under the government.
,5. Such Rules are known as the SPSC (Exemption from
,consultation) Regulations.
, 45      Finance Commission
,
,
,
,
,A
,rticle 280 of the Constitution of India provides for a Finance
,Commission as a quasi judicial body. It is constituted by the
,president of India every fifth year or at such earlier time as he
,considers necessary.
, COMPOSITION
,The Finance Commission consists of a chairman and four other
,members to be appointed by the president. They hold office for such
,period as specified by the president in his order. They are eligible for
,reappointment.
,The Constitution authorises the Parliament to determine the
,qualifications of members of the commission and the manner in which
,"they should be selected. Accordingly, the Parliament has specified the"
,qualifications of the chairman and members of the com-mission1. The
,chairman should be a person having experience in public affairs and the
,four other members should be selected from amongst the following:
,1. A judge of high court or one qualified to be appointed as one.
,2. A person who has specialised knowledge of finance and accounts
,of the government.
,3. A person who has wide experience in financial matters and in
,administration.
,4. A person who has special knowledge of economics.
, FUNCTIONS
,The Finance Commission is required to make recommendations to the
,president of India on the following matters:
,1. The distribution of the net proceeds of taxes to be shared
,"between the Centre and the states, and the allocation between"
,the states of the respective shares of such proceeds.
,2. The principles that should govern the grants-in-aid to the states by
,"the Centre (i.e., out of the consolidated fund of India)."
,3. The measures needed to augment the consolidated fund of a
,state to supplement the resources of the panchayats and the
,municipalities in the state on the basis of the recommendations
,made by the state finance commission2 .
,4. Any other matter referred to it by the president in the interests of
,sound finance.
,"Till 1960, the commission also suggested the grants given to the"
,"States of Assam, Bihar, Odisha and West Bengal in lieu of assignment"
,of any share of the net proceeds in each year of export duty on jute and
,jute products. These grants were to be given for a temporary period of
,ten years from the commencement of the Constitution.
,The commission submits its report to the president. He lays it before
,both the Houses of Parliament along with an explanatory memorandum
,as to the action taken on its recommendations.
, ADVISORY ROLE
,
,It must be clarified here that the recommendations made by the
,"Finance Commission are only of advisory nature and hence, not binding"
,on the government. It is up to the Union government to implement its
,recommendations on granting money to the states.
,"To put it in other words, ‘It is nowhere laid down in the Constitution"
,that the recommendations of the commission shall be binding upon the
,Government of India or that it would give rise to a legal right in favour of
,the beneficiary states to receive the money recommended to be offered
,to them by the Commission’3 .
,"As rightly observed by Dr. P.V. Rajamannar, the Chairman of the"
,"Fourth Finance Commission, “Since the Finance Commission is a"
,"constitutional body expected to be quasijudicial, its recommendations"
,should not be turned down by the Government of India unless there are
,very compelling reasons”.
,The Constitution of India envisages the Finance commission as the
,"balancing wheel of fiscal federalism in India. However, till 2014, its role"
,in the Centre-state fiscal relations was undermined by the erstwhile
,"Planning Commission, a non-constitutional and a non-statutory body."
,"Dr. P.V. Rajamannar, the Chairman of the Fourth Finance commission,"
,highlighted the overlapping of functions and responsibilities between
,the Finance Commission and the erstwhile Planning Commission in
,"federal fiscal trans-fers.4 In 2015, the Planning Commission was"
,replaced by a new body called NITI Aayog (National Institution for
,Transforming India).
,
,Table 45.1 Finance Commissions Appointed so far
,Finance           Chairman       Appointed Submitted    Period of
,Commission                          in     Report in implementation
,of Report
,First          K.C. Neogy           1951         1952         1952–57
,Second         K. Santhanam         1956         1957         1957–62
,Third          A.K. Chanda          1960         1961         1962–66
,Fourth         Dr. P.V.             1964         1965         1966–69
,Rajamannar
,Fifth          Mahavir Tyagi        1968         1969         1969–74
,Sixth           Brahamananda       1972     1973         1974–79
,Reddy
,Seventh         J.M. Shelat        1977     1978         1979–84
,Eighth          Y.B. Chavan        1982     1984         1984–89
,Ninth           N.K.P. Salve       1987     1989         1989–95
,Tenth           K.C. Pant          1992     1994       1995–2000
,Eleventh        A.M. Khusro        1998     2000       2000–2005
,Twelfth         Dr. C.             2002     2004       2005–2010
,Rangarajan
,Thirteenth      Dr. Vijay Kelkar   2007     2009       2010–2015
,Fourteenth      Y.V. Reddy         2013     2014       2015–2020
,Fifteenth       N.K. Singh         2017      2020      2020–2026
,(expected)
,
,Table 45.2 Articles Related to Finance Commission at a Glance
,Article No.    Subject-matter
,280.     Finance Commission
,281.     Recommendations of the Finance Commission
,
,
,NOTES AND REFERENCES
,"1. Vide the Finance Commission Act, 1951."
,2. This function was added by the 73rd and 74th Constitutional
,"Amendment Acts of 1992, which have granted constitutional"
,status and protection on the panchayats and the
,municipalities respectively.
,"3. D.D. Basu, Introduction to the Constitution of India, Wadhwa"
,"19th Edition, 2001, p. 331."
,"4. Report of the Fourth Finance Commission, New Delhi,"
,"Government of India, 1965, p. 88–90."
, 46      Goods and Services Tax Council
,
,
,ESTABLISHMENT OF THE COUNCIL
,The 101st Amendment Act of 2016 paved the way for the
,introduction of a new tax regime (i.e. goods and services tax - GST)
,in the country. The smooth and efficient administration of this tax
,requires co-operation and coordination between the centre and the
,"states. In order to facilitate this consultation process, the amendment"
,provided for the establishment of a Goods and Services Tax Council
,or the GST Council.
,The amendment inserted a new Article 279-A in the Constitution.
,This Article empowered the President to constitute a GST Council by
,"an order1. Accordingly, the President issued the order in 2016 and"
,constituted the Council2 .
,The Secretariat of the Council is located at New Delhi. The Union
,Revenue Secretary3 acts as the ex-officio Secretary to the Council.
, VISION AND MISSION OF THE COUNCIL
,
,"While discharging its functions, the Council is to be guided by the"
,need for a harmonised structure of GST and the development of a
,"harmonised national market for goods and services. Further, the"
,Council has to determine the procedure in the performance of its
,functions.
,The vision and mission of the Council are as follows:
,Vision: To establish the highest standards of co-operative federation
,"in the functioning of the Council, which is the first constitutional"
,federal body vested with powers to take all major decisions relating
,to GST.
,"Mission: Evolving by a process of wider consultation, a GST"
,"structure, which is information technology driven and user friendly."
, COMPOSITION OF THE COUNCIL
,
,The Council is a joint forum of the centre and the states and consists
,of the following members:
,(a) The Union Finance Minister as the Chairperson
,(b) The Union Minister of State in-charge of Revenue or Finance
,(c) The Minister in-charge of Finance or Taxation or any other
,Minister nominated by each state government
,The members of the Council from the states have to choose one
,amongst themselves to be the Vice-Chairperson of the Council. They
,can also decide his term.
,The Union Cabinet also decided to include the Chairperson of the
,Central Board of Excise and Customs (CBEC) as a permanent
,invitee (non-voting) to all proceedings of the Council.
, WORKING OF THE COUNCIL
,
,The decisions of the Council are taken at its meetings. One-half of
,the total number of members of the Council is the quorum for
,conducting a meeting. Every decision of the Council is to be taken by
,a majority of not less than three-fourths of the weighted votes of the
,members present and voting at the meeting. The decision is taken in
,accordance with the following principles:
,(i) The vote of the central government shall have a weightage
,one-third of the total votes cast in that meeting.
,(ii) The votes of all the state governments combined shall have
,weightage of two-thirds of the total votes cast in that meeting.
,Any act or proceedings of the Council will not become invalid on
,the following grounds:
,(i) any vacancy or defect in the constitution of the Council; or
,(ii) any defect in the appointment of a person as a member of the
,Council; or
,(iii) any procedural irregularity of the Council not affecting the merits
,of the case.
, FUNCTIONS OF THE COUNCIL
,
,The Council is required to make recommendations to the centre and
,the states on the following matters:
,"(a) The taxes, cesses and surcharges levied by the centre, the"
,states and the local bodies that would get merged in GST.
,(b) The goods and services that may be subjected to GST or
,exempted from GST.
,"(c) Model GST Laws, principles of levy, apportionment of GST"
,levied on supplies in the course of inter-state trade or
,commerce and the principles that govern the place of supply.
,(d) The threshold limit of turnover below which goods and services
,may be exempted from GST.
,(e) The rates including floor rates with bands of GST.
,(f) Any special rate or rates for a specified period to raise additional
,resources during any natural calamity or disaster.
,(g) Special provision with respect to the states of Arunachal
,"Pradesh, Assam, Jammu and Kashmir4 , Manipur, Meghalaya,"
,"Mizoram, Nagaland, Sikkim, Tripura, Himachal Pradesh and"
,Uttarakhand.
,"(h) Any other matter relating to GST, as the Council may decide."
, OTHER FUNCTIONS OF THE COUNCIL
,
,"In addition to the above, the Council has the following other"
,functions:
,1. The Council shall recommend the date on which the GST may
,"be levied on petroleum crude, high speed diesel, motor spirit"
,"(petrol), natural gas and aviation turbine fuel."
,2. When there is a dispute with respect to its recommendations or
,"their implementation, the Council shall establish a mechanism"
,to adjudicate upon the dispute:
,(a) between the centre and one or more states; or
,(b) between the centre and any state or states on one side and
,one or more other states on the other side; or
,(c) between two or more states.
,3. The Council has to recommend the compensation to the states
,for loss of revenue arising on account of introduction of GST for
,"a period of five years. Based on this recommendation, the"
,"Parliament determines the compensation. Accordingly, the"
,Parliament enacted the law in 20175 .
,
,
,NOTES AND REFERENCES
,"1. Article 279-A(1) says that the President shall, within sixty"
,days from the commencement of the Constitution (One
,"Hundred and First Amendment) Act, 2016, by order,"
,constitute a Council to be called the Goods and Services
,Tax Council.
,2. The Presidential order was issued on 15 September 2016.
,"3. Department of Revenue, the Ministry of Finance,"
,Government of India.
,"4. The Jammu and Kashmir Reorganisation Act, 2019,"
,bifurcated the erstwhile state of Jammu and Kashmir into
,"two separate Union territories, namely, the Union territory"
,of Jammu and Kashmir and the Union territory of Ladakh.
,5. The Goods and Services Tax (Compensation to States)
,"Act, 2017."
, 47      National Commission for SCs
,
,
,
,
,T
,he National Commission for Scheduled Castes (SCs) is a
,constitutional body in the sense that it is directly
,established by Article 338 of the Constitu-tion1. On the
,"other hand, the other national commissions like the National"
,"Commission for Women (1992), the National Commission for"
,"Minorities (1993), the National Human Rights Commission (1993)"
,and the National Commission for Protection of Child Rights (2007)
,are statutory bodies in the sense that they are established by acts
,of the Parliament2 .
, EVOLUTION OF THE COMMISSION
,
,"Originally, Article 338 of the Constitution provided for the"
,appointment of a Special Officer for Scheduled Castes (SCs) and
,Scheduled Tribes (STs) to investigate all matters relating to the
,constitutional safeguards for the SCs and STs and to report to the
,President on their working3. He was designated as the
,Commissioner for SCs and STs and assigned the said duty.
,"In 1978, the Government (through a Resolution) set up a non-"
,statutory multimember Commission for SCs and STs; the Office of
,Commissioner for SCs and STs also continued to exist.
,"In 1987, the Government (through another Resolution) modified"
,the functions of the Commission and renamed it as the National
,Commission for SCs and STs4 .
,"Later, the 65th Constitutional Amendment Act of 19905 provided"
,for the establishment of a high level multi-member National
,Commission for SCs and STs in the place of a single Special
,Officer for SCs and STs. This constitutional body replaced the
,Commissioner for SCs and STs as well as the Commission set up
,under the Resolution of 1987.
,"Again, the 89th Constitutional Amendment Act of 20036"
,bifurcated the combined National Commission for SCs and STs
,"into two separate bodies, namely, National Commission for"
,Scheduled Castes (under Article 338) and National Commission
,for Scheduled Tribes (under Article 338-A).
,The separate National Commission for SCs came into
,"existence in 2004. It consists of a chairperson, a vice-chairperson"
,and three other members. They are appointed by the President by
,warrant under his hand and seal. Their conditions of service and
,tenure of office are also determined by the President7 .
, FUNCTIONS OF THE COMMISSION
,The functions of the Commission are:
,(a) To investigate and monitor all matters relating to the
,constitutional and other legal safeguards for the SCs and to
,evaluate their working;
,(b) To inquire into specific complaints with respect to the
,deprivation of rights and safeguards of the SCs;
,(c) To participate and advise on the planning process of socio-
,economic development of the SCs and to evaluate the
,progress of their development under the Union or a state;
,"(d) To present to the President, annually and at such other times"
,"as it may deem fit, reports upon the working of those"
,safeguards;
,(e) To make recommendations as to the measures that should
,be taken by the Union or a state for the effective
,implementation of those safeguards and other measures for
,"the protection, welfare and socio-economic development of"
,the SCs; and
,"(f) To discharge such other functions in relation to the protection,"
,welfare and development and advancement of the SCs as
,the president may specify.
, REPORT OF THE COMMISSION
,
,The commission presents an annual report to the president. It can
,also submit a report as and when it thinks necessary.
,"The President places all such reports before the Parliament,"
,along with a memorandum explaining the action taken on the
,recommendations made by the Commission. The memorandum
,should also contain the reasons for the non-acceptance of any of
,such recommendations.
,The President also forwards any report of the Commission
,pertaining to a state government to the state governor. The
,"governor places it before the state legislature, along with a"
,memorandum       explaining    the     action   taken  on     the
,recommendations of the Commission. The memorandum should
,also contain the reasons for the non-acceptance of any of such
,recommendations.
, POWERS OF THE COMMISSION
,
,The Commission is vested with the power to regulate its own
,procedure.
,"The Commission, while investigating any matter or inquiring"
,"into any complaint, has all the powers of a civil court trying a suit"
,and in particular in respect of the following matters:
,(a) summoning and enforcing the attendance of any person from
,any part of India and examining him on oath;
,(b) requiring the discovery and production of any document;
,(c) receiving evidence on affidavits;
,(d) requisitioning any public record from any court or office;
,(e) issuing summons for the examination of witnesses and
,documents; and
,(f) any other matter which the President may determine.
,The Central government and the state governments are
,required to consult the Commission on all major policy matters
,affecting the SCs.
,The Commission is also required to discharge similar functions
,with regard to the Anglo-Indian Community as it does with respect
,"to the SCs. In other words, the Commission has to investigate all"
,matters relating to the constitutional and other legal safeguards for
,the Anglo-Indian Community and report to the President upon
,their working8 .
,"Till 2018, the commission was also required to discharge"
,similar functions with regard to the other backward classes
,(OBCs). It was relieved from this responsibility by the 102nd
,Amendment Act of 2018.
,
,
,NOTES AND REFERENCES
,1. Article 338 is contained in Part XVI entitled as ‘Special
,Provisions Relating to Certain Classes’.
,2. The years in the bracket indicate the years of their
,establishment.
,3. The constitutional safeguards for the SCs and STs are
,explained in Chapter 68.
,4. It was made as a National Level Advisory Body to
,advise the Government on broad policy issues and
,levels of development of SCs and STs.
,5. The Act came into force on 12–03-1992.
,6. The Act came into force on 19–02-2004.
,"7. Under the Rules, they hold office for a term of three"
,years.
,"8. Clause 10 of Article 338 reads as follows: “In this article,"
,references to the Scheduled Castes shall be construed
,as including references to the Anglo-Indian Community”.
, 48      National Commission for STs
,
,
,
,
,L
,"ike the National Commission for Schedules Castes (SCs),"
,the National Commission for Scheduled Tribes (STs) is also
,a constitutional body in the sense that it is directly
,established by Article 338-A of the Constitution1 .
, SEPARATE COMMISSION FOR STS
,
,The National Commission for SCs and STs came into being
,consequent upon passing of the 65th Constitutional Amendment
,Act of 19902. The Commission was established under Article 338
,of the Constitution with the objective of monitoring all the
,safeguards provided for the SCs and STs under the Constitution
,or other laws3 .
,"Geographically and culturally, the STs are different from the"
,SCs and their problems are also different from those of SCs. In
,"1999, a new Ministry of Tribal Affairs was created to provide a"
,sharp focus to the welfare and development of the STs. It was felt
,necessary that the Ministry of Tribal Affairs should coordinate all
,activities relating to the STs as it would not be administratively
,feasible for the Ministry of Social Justice and Empowerment to
,perform this role4 .
,"Hence, in order to safeguard the interests of the STs more"
,"effectively, it was proposed to set up a separate National"
,Commission for STs by bifurcating the existing combined National
,Commission for SCs and STs. This was done by passing the 89th
,Constitutional Amendment Act of 20035. This Act further amended
,Article 338 and inserted a new Article 338-A in the Constitution.
,The separate National Commission for STs came into existence
,"in 2004. It consists of a chairperson, a vice-chairperson and three"
,other members. They are appointed by the President by warrant
,under his hand and seal. Their conditions of service and tenure of
,office are also determined by the President6 .
, FUNCTIONS OF THE COMMISSION
,The functions of the Commission are:
,(a) To investigate and monitor all matters relating to the
,constitutional and other legal safeguards for the STs and to
,evaluate their working;
,(b) To inquire into specific complaints with respect to the
,deprivation of rights and safeguards of the STs;
,(c) To participate and advise on the planning process of socio-
,economic development of the STs and to evaluate the
,progress of their development under the Union or a state;
,"(d) To present to the President, annually and at such other times"
,"as it may deem fit, reports upon the working of those"
,safeguards;
,(e) To make recommendations as to the measures that should
,be taken by the Union or a state for the effective
,implementation of those safeguards and other measures for
,"the protection, welfare and socio-economic development of"
,the STs; and
,"(f) To discharge such other functions in relation to the protection,"
,welfare and development and advancement of the STs as the
,President may specify.
, OTHER FUNCTIONS OF THE COMMISSION
,
,"In 2005, the President specified the following other functions of"
,"the Commission in relation to the protection, welfare and"
,development and advancement of the STs7 :
,(i) Measures to be taken over conferring ownership rights in
,respect of minor forest produce to STs living in forest areas
,(ii) Measures to be taken to safeguard rights of the tribal
,"communities over mineral resources, water resources etc.,"
,as per law
,(iii) Measures to be taken for the development of tribals and to
,work for more viable livelihood strategies
,(iv) Measures to be taken to improve the efficacy of relief and
,rehabilitation measures for tribal groups displaced by
,development projects
,(v) Measures to be taken to prevent alienation of tribal people
,from land and to effectively rehabilitate such people in whose
,case alienation has already taken place
,(vi) Measures to be taken to elicit maximum cooperation and
,involvement of tribal communities for protecting forests and
,undertaking social afforestation
,(vii) Measures to be taken to ensure full implementation of the
,Provisions of Panchayats (Extension to the Scheduled
,"Areas) Act, 1996"
,(viii) Measures to be taken to reduce and ultimately eliminate the
,practice of shifting cultivation by tribals that lead to their
,continuous disempowerment and degradation of land and
,the environment
, REPORT OF THE COMMISSION
,
,The Commission presents an annual report to the President. It
,can also submit a report as and when it thinks necessary.
,"The President places all such reports before the Parliament,"
,along with a memorandum explaining the action taken on the
,recommendations made by the Commission. The memorandum
,should also contain the reasons for the non-acceptance of any of
,such recommendations.
,The President also forwards any report of the Commission
,pertaining to a state government to the state governor. The
,"governor places it before the state legislature, along with a"
,memorandum       explaining    the    action    taken    on  the
,recommendations of the Commission. The memorandum should
,also contain the reasons for the non-acceptance of any of such
,recommendations.
, POWERS OF THE COMMISSION
,
,The Commission is vested with the power to regulate its own
,procedure.
,"The Commission, while investigating any matter or inquiring"
,"into any complaint, has all the powers of a civil court trying a suit"
,and in particular in respect of the following matters:
,(a) summoning and enforcing the attendance of any person from
,any part of India and examining him on oath;
,(b) requiring the discovery and production of any document;
,(c) receiving evidence on affidavits;
,(d) requisitioning any public record from any court or office;
,(e) issuing summons for the examination of witnesses and
,documents; and
,(f) any other matter which the President may determine.
,The Central government and the state governments are
,required to consult the Commission on all major policy matters
,affecting the STs.
,
,
,NOTES AND REFERENCES
,1. Article 338-A is contained in Part XVI entitled as
,‘Special Provisions Relating to Certain Classes’. This
,Article was inserted by the 89th Constitutional
,Amendment Act of 2003.
,2. The Act came into force on 12–03-1992.
,3. The constitutional safeguards for the SCs and STs are
,explained in Chapter 68.
,4. The Ministry of Social Justice and Empowerment co-
,ordinates all activities relating to the SCs.
,5. The Act came into force on 19–02-2004.
,"6. Under the Rules, they hold office for a term of three"
,years.
,7. The National Commission for the Scheduled Tribes
,"(Specification of Other Functions) Rules, 2005."
, 49      National Commission for BCs
,
,
,ESTABLISHMENT OF THE COMMISSION
,
,"In the Mandal case1 judgement (1992), the Supreme Court"
,directed the central government to constitute a permanent
,"statutory body to examine the complaints of underinclusion, over-"
,inclusion or non-inclusion of any class of citizens in the list of
,"backward classes. Accordingly, the National Commission for"
,Backward Classes (NCBC) was set up in 19932 .
,"Later, the 102nd Amendment Act of 2018 conferred a"
,"constitutional status on the Commission. For this purpose, the"
,amendment inserted a new Article 338-B in the constitution.
,"Hence, the Commission ceased to be a statutory body and"
,became a constitutional body3 .
,"Further, the scope of functions assigned to the Commission is"
,also enlarged under the new dispensation. This was done in order
,to safeguard the interests of the socially and educationally
,"backward classes more effec-tively4. In other words, the"
,constitutional status of the new Commission is at par with the
,National Commission for Scheduled Castes (NCSC) and the
,National Commission for Scheduled Tribes (NCST).
,"The Commission consists of a chairperson, a vice-chairperson"
,and three other members. They are appointed by the President by
,warrant under his hand and seal. Their conditions of service and
,tenure of office are also determined by the President5 .
, FUNCTIONS OF THE COMMISSION
,
,The functions of the Commission are the following:
,(a) To investigate and monitor all matters relating to the
,constitutional and other legal safeguards for the socially and
,educationally backward classes and to evaluate their
,working.
,(b) To inquire into specific complaints with respect to the
,deprivation of rights and safeguards of the socially and
,educationally backward classes.
,(c) To participate and advise on the socioeconomic development
,of the socially and educationally backward classes and to
,evaluate the progress of their development under the Union
,or a state.
,"(d) To present to the President, annually and at such other times"
,"as it may deem fit, reports upon the working of those"
,safeguards.
,(e) To make recommendations as to the measures that should
,be taken by the Union or a state for the effective
,implementation of those safeguards and other measures for
,"the protection, welfare and socio-economic development of"
,the socially and educationally backward classes.
,"(f) To discharge such other functions in relation to the protection,"
,"welfare, development and advancement of the socially and"
,educationally backward classes as the President may
,specify.
, REPORT OF THE COMMISSION
,The Commission presents an annual report to the President. It
,can also submit a report as and when it thinks necessary.
,"The President places all such reports before the Parliament,"
,along with a memorandum explaining the action taken on the
,recommendations made by the Commission. The memorandum
,should also contain the reasons for the non-acceptance of any of
,such recommendations.
,The President also forwards any report of the Commission
,pertaining to a state government to the state government. The
,"government places it before the state legislature, along with a"
,memorandum       explaining    the    action    taken    on  the
,recommendations of the Commission. The memorandum should
,also contain the reasons for the non-acceptance of any of such
,recommendations.
, POWERS OF THE COMMISSION
,
,The Commission is vested with the power to regulate its own
,procedure.
,"The Commission, while investigating any matter or enquiring"
,"into any complaint, has all the powers of a civil court trying a suit"
,and in particular in respect of the following matters:
,(a) Summoning and enforcing the attendance of any person
,from any part of India and examining him on oath
,(b) Requiring the discovery and production of any document
,(c) Receiving evidence on affidavits
,(d) Requisitioning any public record from any court or office
,(e) Issuing summons for the examination of witnesses and
,documents
,(f) Any other matter which the President may determine
,The central government and the state governments are
,required to consult the Commission on all major policy matters
,affecting the socially and educationally backward classes.
,
,
,NOTES AND REFERENCES
,1. Indra Sawhney Vs. Union of India (1992).
,2. Vide the National Commission for Backward Classes
,"Act, 1993."
,3. The National Commission for Backward Classes
,"(Repeal) Act, 2018, repealed the National Commission"
,"for Backward Classes Act, 1993."
,4. The 102nd Amendment Act of 2018 inserted a new
,Article 342-A enabling the President to specify the
,socially and educationally backward classes.
,"5. Under the Rules, they hold office for a term of three"
,years.
, 50 Special Officer for Linguistic
,Minorities
,
,
,CONSTITUTIONAL PROVISIONS
,"Originally, the Constitution of India did not make any provision with"
,"respect to the Special Officer for Linguistic Minorities1. Later, the"
,States Reorganisation Commission (1953–55) made a
,"recommendation in this regard. Accordingly, the Seventh"
,Constitutional Amendment Act of 1956 inserted a new Article 350-
,B in Part XVII of the Consti-tution2. This article contains the
,following provisions:
,1. There should be a Special Officer for Linguistic Minorities.
,He is to be appointed by the President of India.
,2. It would be the duty of the Special Officer to investigate all
,matters relating to the safeguards provided for linguistic
,minorities under the Constitution3. He would report to the
,President upon those matters at such intervals as the
,President may direct. The President should place all such
,reports before each House of Parliament and send to the
,governments of the states concerned.
,It must be noted here that the Constitution does not specify the
,"qualifications, tenure, salaries and allowances, service conditions"
,and procedure for removal of the Special Officer for Linguistic
,Minorities.
, COMMISSIONER FOR LINGUISTIC MINORITIES
,
,"In pursuance of the provision of Article 350-B of the Constitution,"
,the office of the Special Officer for Linguistic Minorities was
,created in 1957. He is designated as the Commissioner for
,Linguistic Minorities.
,The Commissioner has his headquarters at Allahabad (Uttar
,"Pradesh). He has three regional offices at Belgaum (Karnataka),"
,Chennai (Tamil Nadu) and Kolkata (West Bengal). Each is headed
,by an Assistant Commissioner.
,The Commissioner is assisted at headquarters by Deputy
,Commissioner and an Assistant Commissioner. He maintains
,liaison with the State Governments and Union Territories through
,nodal officers appointed by them.
,"At the Central level, the Commissioner falls under the Ministry"
,"of Minority Affairs. Hence, he submits the annual reports or other"
,reports to the President through the Union Minority Affairs
,Minister4 .
, ROLE OF THE COMMISSIONER
,The Commissioner takes up all the matters pertaining to the
,grievances arising out of the non-implementation of the
,Constitutional and Nationally Agreed Scheme of Safeguards
,provided to linguistic minorities that come to its notice or are
,"brought to its knowledge by the linguistic minority individuals,"
,"groups, associations or organisations at the highest political and"
,administrative levels of the state governments and UT
,administrations and recommends remedial actions to be taken5 .
,"To promote and preserve linguistic minority groups, the Ministry"
,of Minority Affairs has requested the State Governments / Union
,Territories to give wide publicity to the constitutional safeguards
,provided to linguistic minorities and to take necessary
,administrative measures. The state governments and UT
,Administrations were urged to accord priority to the
,implementation of the scheme of safeguards for linguistic
,minorities. The Commissioner launched a 10 point programme to
,lend fresh impetus to Governmental efforts towards the
,preservation of the language and culture of linguistic minorities6 .
, VISION AND MISSION
,
,The vision and mission of the Commissioner are mentioned here.7
,
,Vision
,Streamlining and strengthening implementation machinery and
,mechanism for effective implementation of the Constitutional
,"safeguards for the Linguistic Minorities, thereby ensuring"
,protection of the rights of speakers of the minority languages so
,as to provide them equal opportunities for inclusive and integrated
,development.
,
,Mission
,To ensure that all the states / U.T.s effectively implement the
,Constitutional safeguards and the nationally agreed scheme of
,safeguards for the linguistic minorities for providing them equal
,opportunities for inclusive development.
, FUNCTIONS AND OBJECTIVES
,
,"In more detail, the functions and objectives of the Commissioner"
,are as follows8 :
,
,Functions
,1. To investigate all matters related to safeguards provided to
,the linguistic minorities
,"2. To submit to the President of India, the reports on the status"
,of implementation of the Constitutional and the nationally
,agreed safeguards for the linguistic minorities
,3. To monitor the implementation of safeguards through
,"questionnaires, visits, conferences, seminars, meetings,"
,"review mechanism, etc"
,
,Objectives
,1. To provide equal opportunities to the linguistic minorities for
,inclusive development and national integration
,2. To spread awareness amongst the linguistic minorities about
,the safeguards available to them
,3. To ensure effective implementation of the safeguards
,provided for the linguistic minorities in the Constitution and
,"other safeguards, which are agreed to by the states / U.T.s"
,4. To handle the representations for redress of grievances
,related to the safeguards for linguistic minorities
,
,
,NOTES AND REFERENCES
,1. A linguistic minority is a group of people whose mother
,tongue is different from that of the majority in the state
,"or part of a state. Thus, the linguistic minorities are"
,determined on a state-wise basis.
,2. Part XVII is entitled as ‘Official Language’ and consists
,of four chapters. Article 350-B is contained in the fourth
,chapter entitled as ‘Special Directives’.
,3. The constitutional safeguards for linguistic minorities
,are explained in Chapter 65.
,"4. So far, 52 reports have been presented."
,"5. India 2013, Publications Division, Government of India,"
,p. 1012.
,"6. Annual Report 2011–2012, Ministry of Minority Affairs,"
,"Government of India, p. 38."
,7. 47th Report of the Commissioner for Linguistic
,"Minorities, July 2008 to June 2010, p. 222."
,8. Ibid.
, 51 Comptroller and Auditor General of
,India
,
,
,
,
,T
,he Constitution of India (Article 148) provides for an
,independent office of the Comptroller and Auditor General
,of India (CAG). He is the head of the Indian Audit and
,Accounts Department1. He is the guardian of the public purse and
,controls the entire financial system of the country at both the
,levels–the Centre and the state. His duty is to uphold the
,Constitution of India and laws of Parliament in the field of financial
,administration. This is the reason why Dr. B.R. Ambedkar said
,that the CAG shall be the most important Officer under the
,Constitution of India2. He is one of the bulwarks of the democratic
,system of government in India; the others being the Supreme
,"Court, the Election Commission and the Union Public Service"
,Commission.
, APPOINTMENT AND TERM
,
,The CAG is appointed by the president of India by a warrant
,"under his hand and seal. The CAG, before taking over his office,"
,makes and subscribes before the president an oath or affirmation:
,1. to bear true faith and allegiance to the Constitution of India;
,2. to uphold the sovereignty and integrity of India;
,"3. to duly and faithfully and to the best of his ability, knowledge"
,and judgement perform the duties of his office without fear or
,"favour, affection or ill-will; and"
,4. to uphold the Constitution and the laws.
,He holds office for a period of six years or upto the age of 65
,"years, whichever is earlier. He can resign any time from his office"
,by addressing the resignation letter to the president. He can also
,be removed by the president on same grounds and in the same
,"manner as a judge of the Supreme Court. In other words, he can"
,be removed by the president on the basis of a resolution passed
,to that effect by both the Houses of Parliament with special
,"majority, either on the ground of proved misbehaviour or"
,incapacity.
, INDEPENDENCE
,The Constitution has made the following provisions to safeguard
,and ensure the independence of CAG:
,1. He is provided with the security of tenure. He can be
,removed by the president only in accordance with the
,"procedure mentioned in the Constitution. Thus, he does not"
,"hold his office till the pleasure of the president, though he is"
,appointed by him.
,"2. He is not eligible for further office, either under the"
,"Government of India or of any state, after he ceases to hold"
,his office.
,3. His salary and other service conditions are determined by
,the Parliament. His salary is equal to that of a judge of the
,Supreme Court3 .
,4. Neither his salary nor his rights in respect of leave of
,"absence, pension or age of retirement can be altered to his"
,disadvantage after his appointment.
,5. The conditions of service of persons serving in the Indian
,Audit and Accounts Department and the administrative
,powers of the CAG are prescribed by the president after
,consultation with the CAG.
,"6. The administrative expenses of the office of the CAG,"
,"including all salaries, allowances and pensions of persons"
,serving in that office are charged upon the Consolidated
,"Fund of India. Thus, they are not subject to the vote of"
,Parliament.
,"Further, no minister can represent the CAG in Parliament (both"
,Houses) and no minister can be called upon to take any
,responsibility for any actions done by him.
, DUTIES AND POWERS
,
,The Constitution (Article 149) authorises the Parliament to
,prescribe the duties and powers of the CAG in relation to the
,accounts of the Union and of the states and of any other authority
,"or body. Accordingly, the Parliament enacted the CAG’s (Duties,"
,"Powers and Conditions of Service) act, 1971. This Act was"
,amended in 1976 to separate accounts from audit in the Central
,government.
,The duties and functions of the CAG as laid down by the
,Parliament and the Constitution are:
,1. He audits the accounts related to all expenditure from the
,"Consolidated Fund of India, consolidated fund of each state"
,and consolidated fund of each union territory having a
,Legislative Assembly.
,2. He audits all expenditure from the Contingency Fund of
,India and the Public Account of India as well as the
,contingency fund of each state and the public account of
,each state.
,"3. He audits all trading, manufacturing, profit and loss"
,"accounts, balance sheets and other subsidiary accounts"
,kept by any department of the Central Government and state
,governments.
,4. He audits the receipts and expenditure of the Centre and
,each state to satisfy himself that the rules and procedures in
,that behalf are designed to secure an effective check on the
,"assessment, collection and proper allocation of revenue."
,5. He audits the receipts and expenditure of the following:
,(a) All bodies and authorities substantially financed from the
,Central or state revenues;
,(b) Government companies; and
,"(c) Other corporations and bodies, when so required by"
,related laws.
,6. He audits all transactions of the Central and state
,"governments related to debt, sinking funds, deposits,"
,"advances, suspense accounts and remittance business. He"
,"also audits receipts, stock accounts and others, with"
,"       approval of the President, or when required by the"
,President.
,7. He audits the accounts of any other authority when
,"requested by the President or Governor. For example, the"
,audit of local bodies.
,8. He advises the President with regard to prescription of the
,form in which the accounts of the Centre and the states shall
,be kept (Article 150).
,9. He submits his audit reports relating to the accounts of the
,"Centre to President, who shall, in turn, place them before"
,both the Houses of Parliament (Article 151).
,10. He submits his audit reports relating to the accounts of a
,"state to governor, who shall, in turn, place them before the"
,state legislature (Article 151).
,11. He ascertains and certifies the net proceeds of any tax or
,duty (Article 279). His certificate is final. The ‘net proceeds’
,means the proceeds of a tax or a duty minus the cost of
,collection.
,"12. He acts as a guide, friend and philosopher of the Public"
,Accounts Committee of the Parliament.
,13. He compiles and maintains the accounts of state
,"governments. In 1976, he was relieved of his responsibilities"
,with regard to the compilation and maintenance of accounts
,of the Central Government due to the separation of accounts
,"from audit, that is, departmentalisation of accounts."
,The CAG submits three audit reports to the President–audit
,"report on appropriation accounts, audit report on finance"
,"accounts, and audit report on public undertakings. The President"
,lays these reports before both the Houses of Parliament. After
,"this, the Public Accounts Committee examines them and reports"
,its findings to the Parliament.
,The appropriation accounts compare the actual expenditure
,with the expenditure sanctioned by the Parliament through the
,"Appropriation Act, while the finance accounts show the annual"
,receipts and disbursements of the Union government.
, ROLE
,
,The role of CAG is to uphold the Constitution of India and the laws
,of Parliament in the field of financial administration. The
,"accountability of the executive (i.e., council of ministers) to the"
,Parliament in the sphere of financial administration is secured
,through audit reports of the CAG. The CAG is an agent of the
,Parliament and conducts audit of expenditure on behalf of the
,"Parliament. Therefore, he is responsible only to the Parliament."
,The CAG has more freedom with regard to audit of expenditure
,"than with regard to audit of receipts, stores and stock. “Whereas"
,in relation to expenditure he decides the scope of audit and
,"frames his own audit codes and manuals, he has to proceed with"
,the approval of the executive government in relation to rules for
,the conduct of the other audits.”3a
,The CAG has ‘to ascertain whether money shown in the
,accounts as having been disbursed was legally available for and
,applicable to the service or the purpose to which they have been
,applied or charged and whether the expenditure conforms to the
,authority that governs it’. In addition to this legal and regulatory
,"audit, the CAG can also conduct the propriety audit, that is, he"
,"can look into the ‘wisdom, faithfulness and economy’ of"
,government expenditure and comment on the wastefulness and
,"extravagance of such expenditure. However, unlike the legal and"
,"regulatory audit, which is obligatory on the part of the CAG, the"
,propriety audit is discretionary.
,The secret service expenditure is a limitation on the auditing
,"role of the CAG. In this regard, the CAG cannot call for particulars"
,"of expenditure incurred by the executive agencies, but has to"
,accept a certificate from the competent administrative authority
,that the expenditure has been so incurred under his authority.
,The Constitution of India visualises the CAG to be Comptroller
,"as well as Auditor General. However, in practice, the CAG is"
,fulfilling the role of an Auditor-General only and not that of a
,"Comptroller. In other words, ‘the CAG has no control over the"
,issue of money from the consolidated fund and many departments
,are authorised to draw money by issuing cheques without specific
,"authority from the CAG, who is concerned only at the audit stage"
,"when the expenditure has already taken place’4. In this respect,"
,the CAG of India differs totally from the CAG of Britain who has
,powers of both Comptroller as well as Auditor General. In other
,"words, in Britain, the executive can draw money from the public"
,exchequer only with the approval of the CAG.
, CAG AND CORPORATIONS
,
,The role of CAG in the auditing of public corporations is limited.
,"Broadly speaking, his relationship with the public corporations falls"
,into the following three categories:
,(i) Some corporations are audited totally and directly by the
,"CAG, for example, Damodar Valley Corporation, Oil and"
,"Natural Gas Commission, Air India, Indian Airlines"
,"Corporation, and others."
,(ii) Some other corporations are audited by private professional
,auditors who are appointed by the Central Government in
,"consultation with the CAG. If necessary, the CAG can conduct"
,"supplementary audit. The examples are, Central Warehousing"
,"Corporation, Industrial Finance Corporation, and others."
,(iii) Some other corporations are totally subjected to private audit.
,"In other words, their audit is done exclusively by private"
,professional auditors and the CAG does not come into the
,picture at all. They submit their annual reports and accounts
,directly to the Parliament. Examples of such corporations are
,"Life Insurance Corporation of India, Reserve Bank of India,"
,"State Bank of India, Food Corporation of India, and others."
,The role of the CAG in the auditing of Government companies
,is also limited. They are audited by private auditors who are
,appointed by the Government on the advise of the CAG. The CAG
,can also undertake supplementary audit or test audit of such
,companies.
,"In 1968, an Audit Board was established as a part of the office"
,of CAG to associate outside specialists and experts to handle the
,technical aspects of audit of specialised enterprises like
,"engineering, iron and steel, chemicals and so on. This board was"
,established on the recommendations of the Administrative
,Reforms Commission of India. It consists of a Chairman and two
,members appointed by the CAG.
, APPLEBY’S CRITICISM
,
,"Paul H Appleby, in his two reports on Indian Administration, was"
,very critical of the role of CAG and attacked the significance of his
,work5. He also suggested that the CAG should be relieved of the
,"responsibility of audit. In other words, he recommended the"
,abolition of the office of CAG. His points of criticism of Indian audit
,are as follows:
,"1. The function of the CAG in India, is in a large measure, an"
,inheritance from the colonial rule.
,2. The CAG is today a primary cause of widespread and
,paralysing unwillingness to decide and to act. Auditing has a
,repressive and negative influence.
,3. The Parliament has a greatly exaggerated notion of the
,"importance of auditing to Parliamentary responsibility, and"
,so has failed to define the functions of the CAG as the
,Constitution contemplated it would do.
,4. The CAG’s function is not really a very important one.
,Auditors do not know and cannot be expected to know very
,much about good administration; their prestige is highest
,with others who do not know much about administration.
,"5. Auditors know what is auditing, which is not administration; it"
,"is a necessary, but a highly pedestrian function with a"
,narrow perspective and a very limited usefulness.
,6. A deputy secretary in the department knows more about the
,problems in his department than the CAG and his entire
,staff.
,
,Table 51.1 Articles Related to Comptroller and Auditor-General of
,India at a Glance
,Article No. Subject-matter
,148.       Comptroller and Auditor-General of India
,149.       Duties and powers of the Comptroller and Auditor-
,General
,150.       Form of accounts of the Union and of the States
,  151.     Audit reports
,
,
,NOTES AND REFERENCES
,1. The Indian Audit and Accounts Department was created
,during the British rule in 1753.
,"2. Constituent Assembly Debates, Volume VIII, p. 405."
,"3. In 2018, the salary of a judge of the Supreme Court had"
,been fixed at ₹2.50 lakh per month.
,"3a. Wattal, P.K., Parliamentary Financial Control in India,"
,"Second Edition. Bombay: Minerva Book Shop, 1962, p."
,235
,"4. D.D. Basu, Introduction to the Constitution of India,"
,"Wadhwa, 19th Edition, 2001, p. 198."
,5. The two reports are: Public Administration in India
,(1953) and Re-examination of India’s Administrative
,"System, 1956."
,52     Attorney General of India
,
,
,
,
,T
,he Constitution (Article 76) has provided for the office of
,the Attorney General for India1. He is the highest law officer
,in the country.
, APPOINTMENT AND TERM
,
,The Attorney General (AG) is appointed by the president. He must
,be a person who is qualified to be appointed a judge of the
,"Supreme Court. In other words, he must be a citizen of India and"
,he must have been a judge of some high court for five years or an
,"advocate of some high court for ten years or an eminent jurist, in"
,the opinion of the president.
,The term of office of the AG is not fixed by the Constitution.
,"Further, the Constitution does not contain the procedure and"
,grounds for his removal. He holds office during the pleasure of the
,president. This means that he may be removed by the president
,at any time. He may also quit his office by submitting his
,"resignation to the president. Conventionally, he resigns when the"
,"government (council of ministers) resigns or is replaced, as he is"
,appointed on its advice.
,The remuneration of the AG is not fixed by the Constitution. He
,receives such remuneration as the president may determine.
, DUTIES AND FUNCTIONS
,"As the chief law officer of the Government of India, the duties of"
,the AG include the following:
,1. To give advice to the Government of India upon such legal
,"matters, which are referred to him by the president."
,2. To perform such other duties of a legal character that are
,assigned to him by the president.
,3. To discharge the functions conferred on him by the
,Constitution or any other law.
,The president has assigned the following duties to the AG2 :
,1. To appear on behalf of the Government of India in all cases
,in the Supreme Court in which the Government of India is
,concerned.
,2. To represent the Government of India in any reference made
,by the president to the Supreme Court under Article 143 of
,the Constitution.
,3. To appear (when required by the Government of India) in
,any high court in any case in which the Government of India
,is concerned.
, RIGHTS AND LIMITATIONS
,
,"In the performance of his official duties, the Attorney General has"
,"the right of audience in all courts in the territory of India. Further,"
,he has the right to speak and to take part in the proceedings of
,both the Houses of Parliament or their joint sitting and any
,committee of the Parliament of which he may be named a
,"member, but without a right to vote. He enjoys all the privileges"
,and immunities that are available to a member of Parliament.
,Following limitations are placed on the Attorney General in
,order to avoid any complication and conflict of duty:
,1. He should not advise or hold a brief against the Government
,of India.
,2. He should not advise or hold a brief in cases in which he is
,called upon to advise or appear for the Government of India.
,3. He should not defend accused persons in criminal
,prosecutions without the permission of the Government of
,India.
,4. He should not accept appointment as a director in any
,company or corporation without the permission of the
,Government of India.
,5. He should not advise any ministry or department of
,Government of India or any statutory organization or any
,public sector undertaking unless the proposal or a reference
,in this regard is received through the Ministry of Law and
,"Justice, Department of Legal Affairs2a."
,"However, the Attorney General is not a fulltime counsel for the"
,Government. He does not fall in the category of government
,"servants. Further, he is not debarred from private legal practice."
, SOLICITOR GENERAL OF INDIA
,
,"In addition to the AG, there are other law officers of the"
,Government of India. They are the solicitor general of India and
,additional solicitor general of India. They assist the AG in the
,fulfilment of his official responsibilities. It should be noted here that
,only the office of the AG is created by the Constitution. In other
,"words, Article 76 does not mention about the solicitor general and"
,additional solicitor general.
,The AG is not a member of the Central cabinet. There is a
,separate law minister in the Central cabinet to look after legal
,matters at the government level3 .
,
,Table 52.1 Articles Related to Attorney-General of India at a
,Glance
,Article No. Subject-matter
,76.       Attorney-General of India
,88.       Rights of Attorney-General as respects the
,Houses of Parliament and its Committee
,"105.       Powers, privileges and immunities of Attorney-"
,General
,
,
,NOTES AND REFERENCES
,1. Article 76 of Chapter 1 (The Executive) in Part V (The
,Union) of the Constitution deals with the office of the
,Attorney General of India. This is the only Article dealing
,with this office.
,"2. Notification No. F. 43–50C, 26 January 1950, Gazette of"
,"India, Extraordinary, Volume VII, p. 33–34."
,"2a. Inserted vide G.S.R..... (E) dated 25th February, 2005."
,"3. During the prime ministership of Jawaharlal Nehru, a"
,proposal was put forward by the Central government
,that the office of the Attorney General be merged with
,the office of the law minister. It did not materialise.
, 53      Advocate General of the State
,
,
,
,
,T
,he Constitution (Article 165) has provided for the office of
,the advocate general for the states.1 He is the highest law
,officer in the state. Thus he corresponds to the Attorney
,General of India.
, APPOINTMENT AND TERM
,
,The advocate general is appointed by the governor. He must be a
,person who is qualified to be appointed a judge of a high court. In
,"other words, he must be a citizen of India and must have held a"
,judicial office2 for ten years or been an advocate of a high court
,for ten years3 .
,The term of office of the advocate general is not fixed by the
,"Constitution. Further, the Constitution does not contain the"
,procedure and grounds for his removal. He holds office during the
,pleasure of the governor. This means that he may be removed by
,the governor at any time. He may also quit his office by submitting
,"his resignation to the governor. Conventionally, he resigns when"
,"the government (council of ministers) resigns or is replaced, as he"
,is appointed on its advice.
,The remuneration of the advocate general is not fixed by the
,Constitution. He receives such remuneration as the governor may
,determine.
, DUTIES AND FUNCTIONS
,"As the chief law officer of the government in the state, the duties"
,of the advocate general include the following:
,1. To give advice to the government of the state upon such
,legal matters which are referred to him by the governor.
,2. To perform such other duties of a legal character that are
,assigned to him by the governor.
,3. To discharge the functions conferred on him by the
,Constitution or any other law.
,"In the performance of his official duties, the advocate general is"
,"entitled to appear before any court of law within the state. Further,"
,he has the right to speak and to take part in the proceedings of
,both the Houses of the state legislature or any committee of the
,"state legislature of which he may be named a member, but without"
,a right to vote. He enjoys all the privileges and immunities that are
,available to a member of the state legislature.
,
,Table 53.1 Articles Related to Advocate-General of the state at a
,Glance
,Article No. Subject-matter
,165.      Advocate-General of the State
,177.      Rights of Advocate-General as respects the
,Houses of State Legislature and its Committee
,"194.      Powers, privileges and immunities of Advocate-"
,General
,
,Table 53.2 Articles Related to Constitutional Bodies at a Glance
,Article No. Constitutional Bodies
,76.       Attorney-General of India
,148.      Comptroller and Auditor-General of India
,165.      Advocate-General of the State
,243-I.     State Finance Commission
, 243-K.    State Election Commission
,243ZD.     District Planning Committee
,243ZE.     Metropolitan Planning Committee
,263.     Inter-State Council
,279A.     Goods and Services Tax Council
,280.     Finance Commission
,307.     Inter-State Trade and Commerce Commission
,315.     Union Public Service Commission and State
,Public Service Commission
,324.     Election Commission
,338.     National Commission for Scheduled Castes
,338A.     National Commission for Scheduled Tribes
,338B.     National Commission for Backward Classes
,339.     Scheduled Areas and Scheduled Tribes
,Commission
,340.     Backward Classes Commission
,344.     Official Language Commission and Official
,Language Committee of Parliament
,350B.     Special Officer for Linguistic Minorities
,
,
,NOTES AND REFERENCES
,1. Article 165 of Chapter 2 (The Executive) in Part VI (The
,States) of the Constitution deals with the office of the
,advocate general of the state. This is the only article
,dealing with this office.
,2. Judicial office means an office within the judicial service
,of the state.
,"3. Unlike the Supreme Court, the Constitution makes no"
,provision for appointment of an eminent jurist as a judge
,of high court.
,                PART-VIII
,NON-CONSTITUTIONAL BODIES
,
,54. NITI Aayog
,55. National Human Rights Commission
,56. State Human Rights Commission
,57. Central Information Commission
,58. State Information Commission
,59. Central Vigilance Commission
,60. Central Bureau of Investigation
,61. Lokpal and Lokayuktas
,62. National Investigation Agency
,63. National Disaster Management Authority
, 54       NITI Aayog
,
,
,ESTABLISHMENT
,"On the 13th of August, 2014, the Modi Government scrapped the 65-"
,year-old Planning Commission and announced that it would be
,"replaced by a new body. Accordingly, on January 1, 2015, the NITI"
,Aayog (National Institution for Transforming India) was established
,as the successor to the planning commission.
,"However, it must be noted here that the NITI Aayog, like that of"
,"the Planning Commission, was also created by an executive"
,"resolution1 of the Government of India (i.e., Union Cabinet). Hence,"
,it is also neither a constitutional body nor a statutory body. In other
,"words, it is a non-constitutional or extra-constitutional body (i.e., not"
,created by the Constitution) and a non-statutory body (not created by
,an Act of the Parliament).
,NITI Aayog is the premier policy ‘Think Tank’ of the Government
,"of India, providing both directional and policy inputs. While designing"
,strategic and long-term policies and programmes for the
,"Government of India, NITI Aayog also provides relevant technical"
,advice to the Centre and States.
,"The centre-to-state one-way flow of policy, that was the hallmark"
,"of the Planning Commission era, is now sought to be replaced by a"
,genuine and continuing partnership of states.
,In a paradigmatic shift from the command and control approach of
,"the past, NITI Aayog accommodates diverse points of view in a"
,"collaborative, rather than confrontationist, setting. In the spirit of"
,"federalism, NITI’s own policy thinking too is shaped by a ‘bottom-up’"
,approach rather than a ‘top-down’ model.
, RATIONALE
,
,While explaining the reason for replacing the Planning Commission
,"with the NITI Aayog, the Union Government made the following"
,observation: “India has undergone a paradigm shift over the past six
,"decades–politically, economically, socially, technologically as well as"
,demographically. The role of Government in national development
,"has seen a parallel evolution. Keeping with these changing times,"
,the Government of India has decided to set up NITI Aayog (National
,"Institution for Transforming India), in place of the erstwhile Planning"
,"Commission, as a means to better serve the needs and aspirations"
,of the people of India.”2
,The new institution will be a catalyst to the developmental
,"process; nurturing an overall enabling environment, through a"
,holistic approach to development going beyond the limited sphere of
,the Public Sector and Government of India. This will be built on the
,foundations of:3
,1. An empowered role of States as equal partners in national
,development; operationalising the principle of Cooperative
,Federalism.
,2. A knowledge hub of internal as well as external resources;
,"serving as a repository of good governance best practices, and"
,a Think Tank offering domain knowledge as well as strategic
,expertise to all levels of government.
,3. A collaborative platform facilitating implementation; by
,"monitoring progress, plugging gaps and bringing together the"
,"various ministries at the Centre and in States, in the joint"
,pursuit of developmental goals.
,"In the same context, the then Union Finance Minister Arun Jaitley"
,said: “The 65-year-old Planning Commission had become a
,redundant organisation. It was relevant in a command economy
,"structure, but not any longer. India is a diversified country and its"
,states are in various phases of economic development along with
,"their own strengths and weaknesses. In this context, a ‘one-size-fits-"
,all’ approach to economic planning is obsolete. It cannot make India
,competitive in today’s global economy.”4
,"The Resolution observed: “Perhaps most importantly, the"
,institution must adhere to the tenet that while incorporating positive
,"influences from the world, no single model can be transplanted from"
,outside into the Indian scenario. We need to find our own strategy for
,growth. The new institution has to zero in on what will work in and for
,India. It will be a Bharatiya approach to development.”
, COMPOSITION
,
,The composition of the NITI Aayog is as follows:
,(a) Chairperson: The Prime Minister of India
,(b) Governing Council: It comprises the Chief Ministers of all the
,"States, Chief Ministers of Union Territories with Legislatures"
,"(i.e., Delhi, Puducherry and Jammu and Kashmir) and Lt."
,Governors of other Union Territories.
,(c) Regional Councils: These are formed to address specific issues
,and contingencies impacting more than one state or a region.
,These are formed for a specified tenure. These are convened
,by the Prime Minister and comprises of the Chief Ministers of
,States and Lt. Governors of Union Territories in the region.
,These are chaired by the Chairperson of the NITI Aayog or his
,nominee.
,"(d) Special Invitees: Experts, specialists and practitioners with"
,relevant domain knowledge as special invitees nominated by
,the Prime Minister.
,"(e) Full-time Organisational Framework: It comprises, in addition to"
,the Prime Minister as the Chairperson:
,(i) Vice-Chairperson: He is appointed by the Prime Minister. H
,enjoys the rank of a Cabinet Minister.
,(ii) Members: Full-time. They enjoy the rank of a Minister of State.
,"(iii) Part-time Members: Maximum of 2, from leading universitie"
,research organisations and other relevant institutions in an e
,officio capacity. Part-time members would be on a rotation.
,(iv) Ex-Officio Members: Maximum of 4 members of the Uni
,Council of Ministers to be nominated by the Prime Minister.
,(v) Chief Executive Officer: He is appointed by the Prime Minist
,"for a fixed tenure, in the rank of Secretary to the Government"
,India.
,(vi) Secretariat: As deemed necessary.
, SPECIALISED WINGS
,
,"NITI Aayog houses a number of specialised wings, including5 :"
,1. Research Wing: It develops in-house sectoral expertise as a
,"dedicated think tank of top notch domain experts, specialists"
,and scholars.
,2. Consultancy Wing: It provides a marketplace of whetted panels
,"of expertise and funding, for the Central and State"
,Governments to tap into matching their requirements with
,"solution providers, public and private, national and"
,international. By playing match-maker instead of providing the
,"entire service itself, NITI Aayog is able to focus its resources"
,"on priority matters, providing guidance and an overall quality"
,check to the rest.
,3. Team India Wing: It comprises of the representatives from
,every State and Ministry and serves as a permanent platform
,for national collaboration. Each representative:
,(a) Ensures that every State/Ministry has a continuous voice
,and stake in the NITI Aayog.
,(b) Establishes a direct communication channel between the
,State/Ministry and NITI Aayog for all development related
,"matters, as the dedicated liaison interface."
,"NITI Aayog functions in close cooperation, consultation and"
,"coordination with the Ministries of the Central Government, and"
,State Governments. While it makes recommendations to the Central
,"and State Governments, the responsibility for taking and"
,implementing decisions rests with them.
, OBJECTIVES
,
,The objectives of the NITI Aayog are mentioned below:
,"1. To evolve a shared vision of national development priorities,"
,sectors and strategies with the active involvement of States.
,2. To foster cooperative federalism through structured support
,initiatives and mechanisms with the States on a continuous
,"basis, recognising that strong States make a strong nation."
,3. To develop mechanisms to formulate credible plans at the
,village level and aggregate these progressively at higher levels
,of government.
,"4. To ensure, on areas that are specifically referred to it, that the"
,interests of national security are incorporated in economic
,strategy and policy.
,5. To pay special attention to the sections of our society that may
,be at risk of not benefitting adequately from economic
,progress.
,6. To design strategic and long-term policy and programme
,"frameworks and initiatives, and monitor their progress and their"
,efficacy. The lessons learnt through monitoring and feedback
,"will be used for making innovative improvements, including"
,necessary midcourse corrections.
,7. To provide advice and encourage partnerships between key
,stakeholders and national and international like-minded think
,"tanks, as well as educational and policy research institutions."
,"8. To create a knowledge, innovation and entrepreneurial support"
,system through a collaborative community of national and
,"international experts, practitioners and other partners."
,9. To offer a platform for resolution of inter-sectoral and inter-
,departmental issues in order to accelerate the implementation
,of the development agenda.
,"10. To maintain a state-of-the-art Resource Centre, be a repository"
,of research on good governance and best practices in
,sustainable and equitable development as well as help their
,dissemination to stake-holders.
,11. To actively monitor and evaluate the implementation of
,"programmes and initiatives, including the identification of the"
,needed resources so as to strengthen the probability of
,success and scope of delivery.
,  12. To focus on technology upgradation and capacity building for
,implementation of programmes and initiatives.
,13. To undertake other activities as may be necessary in order to
,"further the execution of the national development agenda, and"
,the objectives mentioned above.
,"Through the above, the NITI Aayog aims to accomplish the"
,following objectives and opportunities:6
,1. An administration paradigm in which the Government is an
,“enabler” rather than a “provider of first and last resort.”
,2. Progress from “food security” to focus on a mix of agricultural
,"production, as well as actual returns that farmers get from their"
,produce.
,3. Ensure that India is an active player in the debates and
,deliberations on the global commons.
,4. Ensure that the economically vibrant middle-class remains
,"engaged, and its potential is fully realised."
,"5. Leverage India’s pool of entrepreneurial, scientific and"
,intellectual human capital.
,6. Incorporate the significant geo-economic and geo-political
,strength of the Non-Resident Indian Community.
,7. Use urbanisation as an opportunity to create a wholesome and
,secure habitat through the use of modern technology.
,8. Use technology to reduce opacity and potential for
,misadventures in governance.
,The NITI Aayog aims to enable India to better face complex
,"challenges, through the following:7"
,"1. Leveraging of India’s demographic dividend, and realisation of"
,"the potential of youth, men and women, through education, skill"
,"development, elimination of gender bias, and employment"
,"2. Elimination of poverty, and the chance for every Indian to live a"
,life of dignity and self-respect
,"3. Redressal of inequalities based on gender bias, caste and"
,economic disparities
,4. Integrate villages institutionally into the development process
,"5. Policy support to more than 50 million small businesses, which"
,are a major source of employment creation
,6. Safeguarding our environmental and ecological assets
, FUNCTIONS
,The various functions performed by the NITI Aayog can be divided
,into four main heads:
,1. Design policy and programme framework.
,2. Foster co-operative federalism.
,3. Monitoring and evaluation.
,"4. Think-tank, and Knowledge and Innovation Hub."
,The NITI Aayog is functionally divided into various Verticals which
,are responsible for examining and looking into sectoral issues and
,priorities for national development and economic growth.
,"By dividing the entire gamut of activities in the NITI Aayog, the"
,"Team India and Knowledge and Innovation Hubs were constituted,"
,and accordingly Verticals and Core Divisions were created. The two
,hubs are at the core of NITI’s efficient functioning. The Team India
,Hub carries out the mandate of fostering ‘Cooperative Federalism’
,and ‘Designing Policy and Programme Frameworks’. It provides
,requisite coordination and support framework to NITI Aayog in its
,"engagement with the States. On the other hand, the Knowledge &"
,Innovation Hub ensures fulfilling the mandate of maintaining a State-
,of-the-Art Resource Centre; to be a repository of research of good
,governance and best practices and their dissemination to
,stakeholders; and to provide advice and encourage partnerships
,across key areas.
,The NITI Aayog uniquely focus thematic policy interventions
,"which encourages convergence across central ministries, state"
,"governments, development partners, sector experts and"
,professionals. This convergence approach to governance is applied
,to achieve the objectives of NITI Aayog.
,The different Verticals of NITI Aayog provide the requisite co-
,ordination and support framework for NITI Aayog to carry out its
,mandate. The list of Verticals is as follows:
,1. Agriculture
,2. Data Management & Analysis
,3. Energy
,4. Financial Resources
,5. Governance & Research
,6. Governing Council Secretariat
,7. Health
, 8.   Human Resource Development
,9.   Industry
,10.   Infrastructure Connectivity
,11.   Land & Water Resources
,12.   Managing Urbanisation
,13.   Natural Resources & Environment
,14.   NGO Darpan
,15.   Project Appraisal & Management Division (PAMD)
,16.   Public-Private Partnerships
,17.   Rural Development
,18.   Science & Technology
,19.   Skill Development & Employment
,20.   Social Justice & Empowerment
,21.   State Coordination and Decentralized Planning
,22.   Sustainable Development Goals
,23.   Voluntary Action Cell
,24.   Women & Child Development
, GUIDING PRINCIPLES
,"In carrying out the above functions, the NITI Aayog is guided by the"
,following principles8 :
,"1. Antyodaya: Prioritise service and uplift of the poor,"
,"marginalised and downtrodden, as enunciated in Pandit"
,Deendayal Upadhyay’s idea of ‘Antyodaya’.
,"2. Inclusion: Empower vulnerable and marginalised sections,"
,"redressing identitybased inequalities of all kinds–gender,"
,"region, religion, caste or class."
,"3. Village: Integrate our villages into the development process, to"
,"draw on the vitality and energy of the bedrock of our ethos,"
,culture and sustenance.
,"4. Demographic dividend: Harness our greatest asset, the people"
,"of India; by focussing on their development, through education"
,"and skilling, and their empowerment, through productive"
,livelihood opportunities.
,5. People’s Participation: Transform the developmental process
,"into a people-driven one, making an awakened and"
,participative citizenry–the driver of good governance.
,"6. Governance: Nurture an open, transparent, accountable, pro-"
,"active and purposeful style of governance, transitioning focus"
,from Outlay to Output to Outcome.
,7. Sustainability: Maintain sustainability at the core of our
,"planning and developmental process, building on our ancient"
,tradition of respect for the environment.
,"Therefore, the NITI Aayog is based on the following seven pillars"
,of effective governance:
,(i) Pro-people agenda that fulfils the aspirations of the society as
,well as individuals.
,(ii) Pro-active in anticipating and responding to citizen needs.
,"(iii) Participative, by involvement of citizens."
,(iv) Empowering women in all aspects.
,"(v) Inclusion of all groups with special attention to the SCs, STs,"
,OBCs and minorities.
,(vi) Equality of opportunity for the youth.
,(vii) Transparency through the use of technology to make
,government visible and responsive.
,"    Through its commitment to a cooperative federalism, promotion of"
,"citizen engagement, egalitarian access to opportunity, participative"
,"and adaptive governance and increasing use of technology, the NITI"
,Aayog seeks to provide a critical directional and strategic input into
,"the development process. This, along with being the incubator of"
,"ideas for development, is the core mission of NITI Aayog."
, COOPERATIVE FEDERALISM
,The NITI Aayog has been constituted to actualize the important goal
,"of cooperative federalism and to enable good governance in India, to"
,build strong states that will make a strong nation. In a truly federal
,"state, several objectives that ought to be achieved may carry political"
,ramifications throughout the country. It is impossible for any federal
,government to achieve the national objectives without active
,"cooperation from state governments. It is, therefore, crucial that the"
,Centre and State governments work together as equals8a.
,The two key features or aspects of Cooperative Federalism are:
,(i) Joint focus on the National Development Agenda by the Centr
,and the States; and
,(ii) Advocacy of State perspectives with Central Ministries8b.
,"In keeping with this, the NITI Aayog has been mandated the task"
,"of evolving a shared vision of national development priorities, sectors"
,and strategies with the active involvement of States. These priorities
,ought to reflect the national objectives and foster cooperative
,federalism through structured support to States on a continuous
,basis. The NITI Aayog ought also to help states develop
,mechanisms to formulate credible plans at the village level and
,aggregate these progressively at higher levels of government. The
,aim is to progress from a stage when the Centre decided
,development policies to a truly federal government wherein States
,are equal stakeholders in the planning process8c.
,The policy of the Government to involve State governments is
,reflected in changes in the interaction processes of the NITI Aayog.
,"Consistent with its mandate, the NITI Aayog has undertaken several"
,crucial initiatives to ensure that States are equal partners in the
,policy making and implementing process8d.
,"At the meetings of the Governing Council of NITI Aayog, the"
,Prime Minister highlighted the importance of NITI Aayog as a
,"platform to inspite cooperative federalism, stressing on the need for"
,effective center-state cooperation to advance development
,outcomes and achieve double-digit and inclusive growth for India.
,It is the constant endeavor of NITI Aayog to evolve a shared
,"vision of national priorities, sectors, and strategies with the active"
,"involvement of States, wherein States are equal stakeholders in the"
,"planning process as well. In keeping with this, the Vice-Chairman of"
,"NITI Aayog committed himself to visit all States, to develop and offer"
,a platform for resolution of inter-sectoral and inter-departmental
,issues in order to accelerate the implementation of the development
,agenda.
,The NITI Aayog has also established models and programmes for
,development of infrastructure and to reignite and establish Private-
,"Public Partnership, such as the Centre-State partnership model:"
,Development Support Services to States (DSSS); and the
,Sustainable Action For Transforming Human Capital (SATH)
,programme which is designed to help States improve their social
,sector indicators by providing them technical support.
,"Further, with the aim of correcting regional development"
,"imbalance, the NITI Aayog has taken special steps for regions"
,"needing special attention and support, like the North Eastern States,"
,Island States and hilly Himayalan States by constituting special
,"forums to identify their specific constraints, formulating special"
,policies to ensure sustainable development takes place in these
,regions while also protecting their abundant natural resources.
,"From the above discussion, we can summarise the various"
,manifestions of Cooperative Federalism in the working of the NITI
,Aayog:
,1. Meetings of Governing Council
,2. Sub-groups of Chief Ministers on different subjects
,3. Task Forces on specific subjects
,4. NITI Forum for North East
,5. Sustainable Development in the Indian Himayalan Region
,6. Development Support Services to States
,7. Sustainable Action For Transforming Human Capital (SATH)
, CRITICISM
,Hitting out at the government for its decision to restructure the
,"Planning Commission and rechristen it as “NITI Aayog”, the"
,Opposition said the move is just a “fluff” and mere “gimmickry”. They
,also expressed their apprehension that the new body will pave the
,"way for discrimination, as “corporates will call the shots” in policy-"
,making in the country.
,CPI(M) leader Sitaram Yechury termed the renaming of the
,Planning Commission as aniti aur durniti (no policy and bad policy).
,"Mr. Yechury said, “just a change of nomenclature and gimmickry"
,does not serve any purpose. Let us see what the government plans
,to do with it”.
,“If the government wants to greet people with fluff and not
,"substance on the first day of 2015, then there is nothing more that"
,can be said... If the North Block or the Finance Ministry has a very
,short-term view of both fiscal and monetary objective and is going to
,be the final arbiter between the states and the Centre... it being the
,"stakeholder in the process... I am afraid, is going to discriminate"
,"against the states,” Congress leader Manish Tewari said."
,"“After all, what was the Planning Commission doing? It used to"
,plan policy. So by changing the nomenclature from Planning
,Commission to NITI Aayog what is the message this government is
,"trying to send,” Mr. Tewari said, adding that Congress’ opposition to"
,restructuring of the Planning Commission was based on “principles”.
,"“It’s not a question of fighting a war, it’s a matter of principle. The"
,Opposition Bharatiya Janata Party used to go extra lengths talking
,about federalism and how the sanctity and sacrosanct of federalism
,"has to be maintained. And now they are going exactly the reverse,”"
,the Congress leader said.
,Veteran CPI leader Gurudas Dasgupta said that dismantling of the
,Planning Commission and bringing in a new body in its place will
,lead to an unregulated economy. “It is not a change of name. The
,Planning Commission is being abolished because they (government)
,"don’t believe in planning,” he said."
,“The government would like to have a fullmarket economy (which
,"is) totally unregulated,” Mr. Dasgupta said adding. “If this becomes"
,"the policy of the government to not help advance the country, control"
,"inflation and create job opportunities, it will not be good for the"
,country”.9
,“Mere change of name from Yojana Aayog to NITI is not
,"objectionable if it is coupled with real reform. Otherwise, it will be"
,"purely cosmetic like earlier naming ceremonies,” Congress"
,spokesperson Abhishek Manu Singhvi said. He said the Congress
,would have supported constructive reform of the Planning
,"Commission. But the “alteration of identity and basic structure”, he"
,"said, “is being done because of anti-Nehruvianism and anti-"
,Congression.”10
,"CPI(M) central committee member Md Selim, MP, said no"
,meaningful purpose would be served by just renaming the Planning
,Commission. Alleging that the BJP government had decided to
,"dissolve the planning commission “to dilute the planning process”, he"
,said the government should have given more teeth to the National
,Development Council instead.11
, ATTACHED OFFICES
,
,There are two offices attached to the NITI Aayog. They are
,explained below:
,
,1. National Institute of Labour Economics Research and
,Development
,The National Institute of Labour Economics Research and
,Development (NILERD) was formerly known as the Institute of
,Applied Manpower Research (IAMR). It is a central autonomous
,organization attached to the NITI Aayog. Its primary objectives are
,"research, data collection, education and training in all aspects of"
,"human capital planning, human resource development, and"
,monitoring and evaluation.
,The IAMR was established in 1962 under the Societies
,Registration Act of 1860 as an institution that would function as a
,clearinghouse of ideas and undertake policy research on human
,capital development to inform perspective planning and promote
,policy integration. The main object of the Institute is to advance
,"knowledge about the nature, characteristics and utilisation of human"
,"resources through research, education and training, consultancy,"
,etc.
,The IAMR has been renamed as NILERD in 2014. The NILERD is
,mainly funded by grants-in-aid from the NITI Aayog (formerly
,"Planning Commission), and supplemented by its own revenue from"
,"contracted research projects, and education and training activities."
,The prime objective of NILERD has been to develop an institutional
,framework capable of sustaining and steering a systematic applied
,human resource planning research process.
,"Since its inception, the Institute has carved out its own trajectory"
,"to achieve academic heights, and in the process, developed a range"
,of academic activities not only in the field of human resource
,"planning and development, but also in monitoring and evaluation of"
,"public policies and programmes. During the past few years, the"
,Institute has exhibited remarkable dynamism in addressing the
,issues of national priorities. The Institute has emerged as a
,pioneering institute in providing academic training on human
,resource planning and development for both international and
,national participants.
,   The Institute moved to its own campus at Narela in 2002. Narela
,is a developing urban and institutional hub declared as a special
,economic zone for knowledge in the National Capital Region.
,
,2. Development Monitoring and Evaluation Office:
,The need for an efficient and independent evaluation mechanism in
,India was recognized by the planners and policy-makers right from
,"the introduction of planning process in the country and resultantly,"
,the Programme Evaluation Organization was established by the
,Government in 1952 to carry out independent and objective impact
,evaluation of the Central Government funded programmes.
,The Development Monitoring and Evaluation Office (DMEO) was
,established by the Government in 2015 as an attached office of the
,NITI Aayog by merging the erstwhile Programme Evaluation
,Organization and the Independent Evaluation Office. The DMEO is
,headed by the Director General who is equivalent to an Additional
,Secretary to the Government of India. To ensure that DMEO is able
,"to function independently and effectively, it has been provided with"
,separate budgetary allocations and manpower in addition to
,complete functional autonomy.
,The DMEO has been mandated to actively monitor and evaluate
,the implementation of the programmes and initiatives of the
,"Government of India, including the identification of the needed"
,resources so as to strengthen the probability of the success and
,scope of delivery.
,The functions of DMEO are:
,1. Monitor the implementation of Government programmes
,2. Help Ministries in designing TORs for evaluation studies
,3. Monitor the implementation and progress of SDGs
,4. Promote the spirit of Cooperative Federalism
,5. Conduct evaluation of the Government programmes
,"At the NITI Aayog level, the programme evaluation work is being"
,"looked after under the overall guidance of the Vice-Chairman, NITI"
,"Aayog. In addition to the Director General, the DMEO has been"
,provided with 4 Deputy Director Generals (SAG level) to look after
,the functional mandate in addition to the Joint Secretary (Adm. &
,Fin.) who is to provide administrative and logistics support. The
,"Headquarter of DMEO is in NITI Aayog, New Delhi."
,The DMEO had 15 Regional Offices known as Regional
,Development Monitoring and Evaluation Offices (RDMEOs). Each
,RDMEO was headed by a Director level officer. The RDMEOs
,conducted field surveys and data/ information collection work for
,"evaluation studies, and they also played an important role in"
,promoting cooperative federalism by their interaction with the States
,"and UT administrations. However, keeping in view the changed"
,"functional requirements, they were closed in 2017 and the staff were"
,transferred to DMEO Hqrs in New Delhi.
, ERSTWHILE PLANNING COMMISSION
,The erstwhile Planning Commission was established in March 1950
,"by an executive resolution of the Government of India, (i.e., the"
,Union Cabinet) on the recommendation of the Advisory Planning
,Board constituted in
,"1946, under the chairmanship of K.C. Neogi. Thus, the erstwhile"
,Planning Commission was neither a constitutional body nor a
,"statutory body. In India, it was the supreme organ of planning for"
,social and economic development.
,
,Functions
,The functions of the erstwhile Planning Commission included the
,following:
,"1. To make an assessment of material, capital and human"
,"resources of the country, and investigate the possibilities of"
,augmenting them.
,2. To formulate a plan for the most effective and balanced
,utilisation of the country’s resources.
,3. To determine priorities and to define the stages in which the
,plan should be carried out.
,4. To indicate the factors that retard economic development.
,5. To determine the nature of the machinery required for
,successful implementation of the plan in each stage.
,"6. To appraise, from time to time, the progress achieved in"
,execution of the plan and to recommend necessary
,adjustments.
,7. To make appropriate recommendations for facilitating the
,"discharge of its duties, or on a matter referred to it for advice by"
,Central or state governments.
,The Allocation of Business Rules had assigned the following
,matters (in addition to the above) to the erstwhile Planning
,Commission:
,1. Public Co-operation in National Development
,2. Specific programmes for area development notified from time
,to time
,3. Perspective Planning
,4. Institute of Applied Manpower Research
,5. Unique Identification Authority of India (UIDAI)
,   6. All matters relating to National Rainfed Area Authority (NRAA)
,"Earlier, the National Informatics Centre was also under the"
,"erstwhile Planning Commission. Later, it was brought under the"
,Ministry of Information Technology.
,It should be noted that the erstwhile Planning Commission was
,only a staff agency–an advisory body and had no executive
,responsibility. It was not responsible for taking and implementing
,decisions. This responsibility rested with the Central and State
,Governments.
,
,Composition
,The following points can be noted in context of the composition
,(membership) of the erstwhile Planning Commission:
,1. The Prime Minister of India was the chairman of the
,commission. He presided over the meetings of the commission.
,2. The commission had a deputy chairman. He was the de facto
,"executive head (i.e., full-time functional head) of the"
,commission. He was responsible for the formulation and
,submission of the draft of Five-Year Plan to the Central cabinet.
,He was appointed by the Central cabinet for a fixed tenure and
,enjoyed the rank of a Cabinet Minister. Though he was not a
,"member of cabinet, he was invited to attend all its meetings"
,(without a right to vote).
,3. Some Central Ministers were appointed as part-time members
,"of the commission. In any case, the finance minister and"
,planning minister were the exofficio (by virtue of) members of
,the commission.
,4. The commission had four to seven fulltime expert members.
,They enjoyed the rank of a minister of state.
,5. The commission had a member-secretary. He was usually a
,senior member of IAS. The state governments were not
,"represented in the commission in any way. Thus, the erstwhile"
,Planning Commission was wholly a Centre-constituted body.
,
,Critical Evaluation
,The erstwhile Planning Commission was originally established as a
,staff agency with advisory role but in the course of time it had
,emerged as a powerful and directive authority whereby its
,recommendations were considered both by the Union and states.
,"The critics had described it as a ‘Super Cabinet’, an ‘Economic"
,"Cabinet’, a ‘Parallel Cabinet’, the ‘Fifth Wheel of the Coach’ and so"
,on.
,The following observations were made on the domineering role
,played by the erstwhile Planning Commission.
,1. Administrative Reforms Commission (ARC) of India: The ARC
,"observed: ‘Under the Constitution, the ministers, whether in the"
,"Centre or the states, are in effect, the ultimate executive"
,"authorities. Unfortunately, the Planning Commission has, in"
,"some measures, earned the reputation of being a Parallel"
,"Cabinet and sometimes, a Super Cabinet’.12"
,"2. K. Santhanam This eminent constitutional expert stated that,"
,‘Planning has superseded the federation and our country is
,functioning like a unitary system in many respects.13
,"3. P.V. Rajamannar Rajamannar, the Chairman of the Fourth"
,"Finance Commission, highlighted the overlapping of functions"
,and responsibilities between the erstwhile Planning
,Commission and Finance Commission in federal fiscal
,transfers.14
, NATIONAL DEVELOPMENT COUNCIL
,
,"On the 1st of January, 2016, it was reported15 that the Modi"
,government is also going to abolish the National Development
,Council (NDC) and transfer its powers to the Governing Council of
,"the NITI Aayog. However, till now (October 2019), such a resolution"
,has not been passed.
,It must also be noted here that the last meeting (57th) of the NDC
,"was held on the 27th of December, 2012 to approve the 12th Plan"
,(2012–2017).
,The National Development Council (NDC) was established in
,August 1952 by an executive resolution of the Government of India
,on the recommendation of the First Five Year Plan (draft outline).
,"Like the erstwhile Planning Commission, it is neither a constitutional"
,body nor a statutory body.16
,
,Composition
,The NDC is composed of the following members.
,1. The Prime Minister of India (as its chairman/head).
,2. All Union Cabinet Ministers (since 1967).17
,3. The Chief Ministers of all the states.
,4. The Chief Ministers/administrators of all union territories.
,5. Members of the Planning Commission (now NITI Aayog).
,The secretary of the Planning Commission (now NITI Aayog) acts
,as the secretary to the NDC. It (NDC) is also provided with
,administrative and other assistance for its work by the Planning
,Commission (now NITI Aayog).
,
,Objectives
,The NDC was established with the following objectives.
,1. To secure cooperation of states in the execution of the Plan.
,2. To strengthen and mobilise the efforts and resources of the
,nation in support of the Plan.
,3. To promote common economic policies in all vital spheres.
,4. To ensure balanced and rapid development of all parts of the
,country.
,
,Functions
,"To realise the above objectives, the NDC is assigned with the"
,following functions:
,1. To prescribe guidelines for preparation of the national Plan.
,2. To consider the national Plan as prepared by the Planning
,Commission (now NITI Aayog).
,3. To make an assessment of the resources required for
,implementing the Plan and to suggest measures for
,augmenting them.
,4. To consider important questions of social and economic policy
,affecting national development.
,5. To review the working of the national Plan from time to time.
,6. To recommend measures for achievement of the aims and
,targets set out in the national Plan.
,The Draft Five-Year Plan prepared by the Planning Commission
,(now NITI Aayog) is first submitted to the Union Cabinet. After its
,"approval, it is placed before the NDC, for its acceptance. Then, the"
,"Plan is presented to the Parliament. With its approval, it emerges as"
,the official Plan and published in the official gazette.
,"Therefore, the NDC is the highest body, below the Parliament,"
,responsible for policy matters with regard to planning for social and
,"economic development. However, it is listed as an advisory body to"
,the Planning Commission (now NITI Aayog) and its
,recommendations are not binding. It makes its recommendations to
,the Central and state governments and should meet at least twice
,every year.
,Critical Evaluation The first and foremost function of NDC is to act
,"as a bridge and link between the Central Government, the State"
,Governments and the Planning Commission (now NITI Aayog)
,"especially in the field of planning, to bring about coordination of"
,"policies and programmes of plans. It has been, to a large extent"
,"successful in this regard. Besides, it has also served as a forum for"
,"Centre-State deliberations on matters of national importance, and"
,also as a device for sharing responsibility between them in the
,federal political system.
,"However, two diametrically opposite views have been expressed"
,"on its working. On one hand, it has been described as a ‘Super"
,"Cabinet’ due to its wide and powerful composition, though its"
,"recommendations are only advisory and not binding, and can hardly"
,be ignored as they are backed by a national mandate. On the other
,"hand, it has been described as a mere ‘rubber stamp’ of the policy"
,decisions already taken by the Union government. This is mainly due
,to the Congress Party rule both at the Centre and states for a long
,"period. However, due to the emergence of regional parties in various"
,"states, the NDC is steadily acquiring its federal character and thus"
,providing a greater say to the states in the preparation of national
,plans.
,
,
,NOTES AND REFERENCES
,1. Resolution of the Cabinet Secretariat vide No.
,"511/2/1/2015-Cab., dated the 1st of January, 2015,"
,"published in the Gazette of India, Extraordinary, Part I,"
,"Section 1, dated the 7th of January, 2015."
,2. Government of India document on NITI Aayog entitled as
,“From Planning to NITI–Transforming India’s Development
,"Agenda”, dated February 8, 2015."
,3. Ibid.
,4. “We will use every provision in the Constitution to push
,"reforms”, OPEN Magazine, January 9, 2015."
,5. See Reference 2 above.
,"6. Press Information Bureau release on NITI Aayog, dated"
,"January 1, 2015."
,7. Ibid.
,8. See Reference 2 above.
,"8a. Annual Report 2017–2018, NITI Aayog, Government of"
,"India, p.14."
,8b. Ibid.
,8c. Ibid.
,8d. Ibid.
,9. “Opposition attacks government over plan panel new
,"avatar”, The Asian Age, page No.2, dated January 2,"
,2015
,10. “Renaming of Plan Panel due to ‘anti-Nehruvianism’:
,"Congress”, The Indian Express, page No.9, dated January"
,"2, 2015."
,"11. “Left parties slam Centre for renaming plan panel”, The"
,"Statesman, dated January 2, 2015."
,"12. Interim Report on the Machinery for Planning, 1967, Para"
,15
,"13. K. Santhanam, Union-State Relations in India, Asia"
,"Publishing House, 1960, p. 70."
,"14. Report of the Fourth Finance Commission, New Delhi,"
,"Government of India, 1965, pp. 88–90."
,"15. “NDC to be scrapped, NITI Aayog council likely to get its"
,"powers”, The Hindu, dated January 1, 2016."
,16. The Sarkaria Commission on Centre-State Relations
,(1983–1987) recommended that the NDC should be given
,a constitutional status under Article 263 of the Constitution
,and should be renamed as National Economic and
,Development Council.
,"17. Before 1967, only selected cabinet ministers like Home,"
,"Finance, Defence, External Affairs, and so on were"
,members of the NDC.
, 55       National Human Rights Commission
,
,
,ESTABLISHMENT OF THE COMMISSION
,The National Human Rights Commission is a statutory (and not a
,constitutional) body. It was established in 1993 under a legislation
,"enacted by the Parliament, namely, the Protection of Human"
,"Rights Act, 19931 ."
,"The commission is the watchdog of human rights in the country,"
,"that is, the rights relating to life, liberty, equality and dignity of the"
,individual guaranteed by the Constitution or embodied in the
,international covenants2 and enforceable by courts in India.
,The specific objectives of the establishment of the commission
,are3 :
,(a) To strengthen the institutional arrangements through which
,human rights issues could be addressed in their entirety in a
,more focussed manner;
,"(b) To look into allegations of excesses, independently of the"
,"government, in a manner that would underline the"
,government’s commitment to protect human rights; and
,(c) To complement and strengthen the efforts that have already
,been made in this direction.
, COMPOSITION OF THE COMMISSION
,
,The commission is a multi-member body consisting of a
,chairperson and five members. The chairperson should be a
,retired chief justice of India or a judge of the Supreme Court and
,members should be a serving or retired judge of the Supreme
,"Court, a serving or retired chief justice of a high court and three"
,persons (out of which atleast one should be a woman) having
,knowledge or practical experience with respect to human rights. In
,"addition to these full-time members, the commission also has"
,seven ex-officio members–the chairpersons of the National
,"Commission for Minorities, the National Commission for SCs, the"
,"National Commission for STs, the National Commission for"
,"Women, the National Commission for BCs and the National"
,Commission for Protection of Child Rights and the Chief
,Commissioner for Persons with Disabilities.
,The chairperson and members are appointed by the president
,on the recommendations of a six-member committee consisting of
,"the prime minister as its head, the Speaker of the Lok Sabha, the"
,"Deputy Chairman of the Rajya Sabha, leaders of the Opposition in"
,both the Houses of Parliament and the Central home minister.
,"Further, a sitting judge of the Supreme Court or a sitting chief"
,justice of a high court can be appointed only after consultation
,with the chief justice of India.
,The chairperson and members hold office for a term of three
,"years or until they attain the age of 70 years, whichever is earlier."
,"They are elligible for re-appointment. After their tenure, the"
,chairperson and members are not eligible for further employment
,under the Central or a state government.
,The president can remove the chairperson or any member from
,the office under the following circumstances:
,(a) If he is adjudged an insolvent; or
,"(b) If he engages, during his term of office, in any paid"
,employment outside the duties of his office; or
,(c) If he is unfit to continue in office by reason of infirmity of mind
,or body; or
,  (d) If he is of unsound mind and stand so declared by a
,competent court; or
,(e) If he is convicted and sentenced to imprisonment for an
,offence.
,"In addition to these, the president can also remove the"
,chairperson or any member on the ground of proved misbehaviour
,"or incapacity. However, in these cases, the president has to refer"
,the matter to the Supreme Court for an inquiry. If the Supreme
,"Court, after the inquiry, upholds the cause of removal and advises"
,"so, then the president can remove the chairperson or a member."
,"The salaries, allowances and other conditions of service of the"
,chairperson or a member are determined by the Central
,"government. But, they cannot be varied to his disadvantage after"
,his appointment.
,"All the above provisions are aimed at securing autonomy,"
,independence and impartiality in the functioning of the
,Commission.
, FUNCTIONS OF THE COMMISSION
,
,The functions of the Commission are:
,(a) To inquire into any violation of human rights or negligence in
,"the prevention of such violation by a public servant, either"
,suo motu or on a petition presented to it or on an order of a
,court.
,(b) To intervene in any proceeding involving allegation of
,violation of human rights pending before a court.
,(c) To visit jails and detention places to study the living
,conditions of inmates and make recommendation thereon.
,(d) To review the constitutional and other legal safeguards for
,the protection of human rights and recommend measures for
,their effective implementation.
,(e) To review the factors including acts of terrorism that inhibit
,the enjoyment of human rights and recommend remedial
,measures.
,(f) To study treaties and other international instruments on
,human rights and make recommendations for their effective
,implementation.
,(g) To undertake and promote research in the field of human
,rights.
,(h) To spread human rights literacy among the people and
,promote awareness of the safeguards available for the
,protection of these rights.
,(i) To encourage the efforts of nongovernmental organisations
,(NGOs) working in the field of human rights.
,(j) To undertake such other functions as it may consider
,necessary for the promotion of human rights.
, WORKING OF THE COMMISSION
,
,The commission’s headquarters is at Delhi and it can also
,establish offices at other places in India. It is vested with the
,power to regulate its own procedure. It has all the powers of a civil
,court and its proceedings have a judicial character. It may call for
,information or report from the Central and state governments or
,any other authority subordinate thereto.
,The commission has its own nucleus of investigating staff for
,"investigation into complaints of human rights violations. Besides, it"
,is empowered to utilise the services of any officer or investigation
,agency of the Central government or any state government for the
,purpose. It has also established effective cooperation with the
,NGOs with first-hand information about human rights violations.
,The commission is not empowered to inquire into any matter
,after the expiry of one year from the date on which the act
,constituting violation of human rights is alleged to have been
,"committed. In other words, it can look into a matter within one"
,year of its occurrence4 .
,The commission may take any of the following steps during or
,upon the completion of an inquiry:
,(a) it may recommend to the concerned government or authority
,to make payment of compensation or damages to the victim;
,(b) it may recommend to the concerned government or authority
,the initiation of proceedings for prosecution or any other
,action against the guilty public servant;
,(c) it may recommend to the concerned government or authority
,for the grant of immediate interim relief to the victim;
,(d) it may approach the Supreme Court or the high court
,"concerned for the necessary directions, orders or writs."
, ROLE OF THE COMMISSION
,
,"From the above, it is clear that the functions of the commission"
,are mainly recommendatory in nature. It has no power to punish
,"the violators of human rights, nor to award any relief including"
,"monetary relief to the victim. Notably, its recommendations are not"
,"binding on the concerned government or authority. But, it should"
,be informed about the action taken on its recommendations within
,"one month. In this context, a former member of the Commission"
,observed5 : ‘The government cannot wash away the
,recommendations made by the Commission. The commission’s
,"role may be recommendatory, advisory, yet the Government"
,"considers the cases forwarded by it. It is, therefore, improper to"
,say that the commission is powerless. It enjoys great material
,authority and no government can ignore its recommendation’.
,"Moreover, the commission has limited role, powers and"
,jurisdiction with respect to the violation of human rights by the
,"members of the armed forces6. In this sphere, the commission"
,may seek a report from the Central government and make its
,recommendations. The Central government should inform the
,Commission of the action taken on the recommendations within
,three months.
,The commission submits its annual or special reports to the
,Central government and to the state government concerned.
,"These reports are laid before the respective legislatures, along"
,with a memorandum of action taken on the recommendations of
,the commission and the reasons for non-acceptance of any of
,such recommendations.
, PERFORMANCE OF THE COMMISSION
,
,The various human rights issues taken up by the Commission are
,as follows:
,1. Abolition of Bonded Labour
,"2. Functioning of the Mental Hospitals at Ranchi, Agra and"
,Gwalior
,"3. Functioning of the Government Protective Home (Women),"
,Agra
,4. Issues Concerning Right to Food
,"5. Review of the Child Marriage Restraint Act, 1929"
,6. Protocols to the Convention on the Rights of the Child
,7. Preventing Employment of Children by Government
,Servants: Amendment of Service Rules
,8. Abolition of Child Labour
,9. Guidebook for the Media on Sexual Violence against
,Children
,10. Trafficking in Women and Children: Manual for the Judiciary
,for Gender Sensitisation
,11. Sensitisation Programme on Prevention of Sex Tourism and
,Trafficking
,12. Maternal Anemia and Human Rights
,13. Rehabilitation of Destitute Women in Vrindavan
,14. Combating Sexual Harassment of Women at the Work
,Place
,15. Harassment of Women Passengers in Trains
,16. Abolition of Manual Scavenging
,17. Dalits Issues including Atrocities Perpetrated on them
,18. Problems Faced by Denotified and Nomadic Tribes
,19. Rights of the Disabled Persons
,20. Issues Related to Right to Health
,21. Rights of Persons Affected by HIV / AIDS
,22. Relief Work for the Victims of 1999 Orissa Cyclone
,23. Monitoring of Relief Measures undertaken after Gujarat
,Earthquake (2001)
,24. District Complaints Authority
,25. Population Policy - Development and Human Rights
,"26. Review of Statutes, including Terrorist & Disruptive Activities"
,"Act, and (Draft) Prevention of Terrorism Bill, 2000"
,27. Protection of Human Rights in Areas of Insurgency and
,Terrorism
,28. Guidelines to Check Misuse of the Power of Arrest by the
,Police
,29. Setting up of Human Rights Cells in the State / City Police
,Headquarters
,"30. Steps to Check Custodial Deaths, Rape and Torture"
,"31. Accession to the Convention against Torture, Additional"
,Protocols to the Geneva Conventions.
,32. Discussion on Adoption of a Refugee Law for the Country
,"33. Systemic Reforms of Police, Prisons and other Centers of"
,Detention
,"34. Review of Laws, Implementation of Treaties, and the"
,International Instruments on Human Rights
,35. Promotion of Human Rights Literacy and Awareness in the
,Educational System
,"36. Human Rights Training for the Armed Forces and Police,"
,Public Authorities and Civil Society
,37. Action Research on Trafficking.
,38. Research through well-known academic institutions and
,NGOs on various issues relating to human rights.
,39. Constitution with NGOs and experts / specialists on human
,rights issues.
,
,
,NOTES AND REFERENCES
,1. The president promulgated the Protection of Human
,"Rights     Ordinance  on     September     28,   1993."
,"Subsequently, the Protection of Human Rights Bill,"
,"1993, was passed by both the Houses of Parliament"
,"and received the assent of the President on January 8,"
,1994. The act came into force with retrospective effect
,"from September 28, 1993."
,2. ‘International covenants’ means the International
,Covenant on Civil and Political Rights and the
,"International Covenant on Economic, Social and"
,     Cultural Rights adopted by the General Assembly of the
,"United Nations on December 16, 1966 and such other"
,Covenant or Convention adopted by the General
,Assembly of the UN as the Central Government may
,specify. The Indian government acceded to these two
,International Covenants on April 10 1979.
,"3.   T.K. Thommen, ‘Human Rights Commission’, Cochin"
,"University Law Review, Vol. XVII, nos. 1 and 2, March-"
,"June 1993, p. 67–68."
,4.   A.M. Ahmadi Committee set up by the Commission
,recommended that the Commission should be
,empowered to inquire into any matter after the expiry of
,"one year, if there is sufficient reason for not filing the"
,complaint within the said period.
,"5.   Justice V.S. Malimath, ‘Role of Human Rights"
,"Commission’, Human Rights in India: Problems and"
,"Perspectives, B.P. Singh Sehgal (ed.), Deep"
,"Publications, 1995, p. 17–20."
,"6.   Under the Act, ‘armed forces’ means the naval, military"
,and air forces and includes any other armed forces of
,the Union. A.M. Ahmadi Committee set up by the
,commission recommended that the definition of the
,‘armed forces’ should be changed in a way that it
,"includes only navy, army and air force, not para-military"
,forces.
, 56       State Human Rights Commission
,
,
,
,
,T
,he Protection of Human Rights Act of 1993 provides for the
,creation of not only the National Human Rights
,Commission but also a State Human Rights Commission at
,"the state level1. Accordingly, twenty six states have constituted the"
,State Human Rights Commissions through Official Gazette
,Notifications2 .
,A State Human Rights Commission can inquire into violation of
,human rights only in respect of subjects mentioned in the State
,List (List-II) and the Concurrent List (List-III) of the Seventh
,"Schedule of the Constitution. However, if any such case is already"
,being inquired into by the National Human Rights Commission or
,"any other Statutory Commission, then the State Human Rights"
,Commission does not inquire into that case.
,The central government may confer upon the State Human
,Rights Commissions the functions relating to human rights being
,"discharged by the union territories, except the union territory of"
,Delhi. The functions relating to human rights in case of union
,territory of Delhi are to be dealt with by the National Human Rights
,Commission.
, COMPOSITION OF THE COMMISSION
,
,The State Human Rights Commission is a multi-member body
,consisting of a chairperson and two members3. The chairperson
,should be a retired Chief Justice or a Judge of a High Court and
,members should be a serving or retired judge of a High Court or a
,District Judge in the state with a minimum of seven years
,experience as District Judge and a person having knowledge or
,practical experience with respect to human rights.
,The chairperson and members are appointed by the Governor
,on the recommendations of a committee consisting of the chief
,"minister as its head, the speaker of the Legislative Assembly, the"
,state home minister and the leader of the opposition in the
,Legislative Assembly. In the case of a state having Legislative
,"Council, the chairman of the Council and the leader of the"
,opposition in the Council would also be the members of the
,"committee. Further, a sitting judge of a High Court or a sitting"
,District Judge can be appointed only after consultation with the
,Chief Justice of the High Court of the concerned state.
,The chairperson and members hold office for a term of three
,"years or until they attain the age of 70 years, whichever is earlier."
,"They are elligible for re-appointment. After their tenure, the"
,chairperson and members are not eligible for further employment
,under a state government or the Central government.
,Although the chairperson and members of a State Human
,"Rights Commission are appointed by the governor, they can be"
,removed only by the President (and not by the governor). The
,President can remove them on the same grounds and in the same
,manner as he can remove the chairperson or a member of the
,"National Human Rights Commission. Thus, he can remove the"
,chairperson or a member under the following circumstances:
,(a) If he is adjudged an insolvent; or
,"(b) If he engages, during his term of office, in any paid"
,employment outside the duties of his office; or
,(c) If he is unfit to continue in office by reason of infirmity of mind
,or body; or
,  (d) If he is of unsound mind and stands so declared by a
,competent court; or
,(e) If he is convicted and sentenced to imprisonment for an
,offence.
,"In addition to these, the president can also remove the"
,chairperson or a member on the ground of proved misbehaviour
,"or incapacity. However, in these cases, the President has to refer"
,the matter to the Supreme Court for an inquiry. If the Supreme
,"Court, after the inquiry, upholds the cause of removal and advises"
,"so, then the President can remove the chairperson or a member."
,"The salaries, allowances and other conditions of service of the"
,chairperson or a member are determined by the state
,"government. But, they cannot be varied to his disadvantage after"
,his appointment.
,"All the above provisions are aimed at securing autonomy,"
,independence and impartiality in the functioning of the
,Commission.
, FUNCTIONS OF THE COMMISSION
,
,The functions of the Commission are:
,(a) To inquire into any violation of human rights or negligence in
,"the prevention of such violation by a public servant, either"
,suo motu or on a petition presented to it or on an order of a
,court.
,(b) To intervene in any proceeding involving allegation of
,violation of human rights pending before a court.
,(c) To visit jails and detention places to study the living
,conditions of inmates and make recommendation thereon.
,(d) To review the constitutional and other legal safeguards for
,the protection of human rights and recommend measures for
,their effective implementation.
,(e) To review the factors including acts of terrorism that inhibit
,the enjoyment of human rights and recommend remedial
,measures.
,(f) To undertake and promote research in the field of human
,rights.
,(g) To spread human rights literacy among the people and
,promote awareness of the safeguards available for the
,protection of these rights.
,(h) To encourage the efforts of non-governmental organizations
,(NGOs) working in the field of human rights.
,(i) To undertake such other functions as it may consider
,necessary for the promotion of human rights.
, WORKING OF THE COMMISSION
,
,The Commission is vested with the power to regulate its own
,procedure. It has all the powers of a civil court and its proceedings
,have a judicial character. It may call for information or report from
,the state government or any other authority subordinate thereto.
,The Commission is not empowered to inquire into any matter
,after the expiry of one year from the date on which the act
,constituting violation of human rights is alleged to have been
,"committed. In other words, it can look into a matter within one"
,year of its occurrence.
,The Commission may take any of the following steps during or
,upon the completion of an inquiry:
,(a) it may recommend to the state government or authority to
,make payment of compensation or damages to the victim;
,(b) it may recommend to the state government or authority the
,initiation of proceedings for prosecution or any other action
,against the guilty public servant;
,(c) it may recommend to the state government or authority for
,the grant of immediate interim relief to the victim;
,(d) it may approach the Supreme Court or the state high court
,"for the necessary directions, orders or writs."
,"From the above, it is clear that the functions of the commission"
,are mainly recommendatory in nature. It has no power to punish
,"the violators of human rights, nor to award any relief including"
,"monetary relief to the victim. Notably, its recommendations are not"
,"binding on the state government or authority. But, it should be"
,informed about the action taken on its recommendations within
,one month.
,The Commission submits its annual or special reports to the
,state government. These reports are laid before the state
,"legislature, along with a memorandum of action taken on the"
,recommendations of the Commission and the reasons for non-
,acceptance of any of such recommendations4 .
, HUMAN RIGHTS COURTS
,
,The Protection of Human Rights Act (1993) also provides for the
,establishment of Human Rights Court in every district for the
,speedy trial of violation of human rights.
,These courts can be set up by the state government only with
,the concurrence of the Chief Justice of the High Court of that
,state.
,"For every Human Rights Court, the state government specifies"
,a public prosecutor or appoints an advocate (who has practiced
,for seven years) as a special public prosecutor.
, 2019 AMENDMENT ACT
,
,The various provisions or features of the Protection of Human
,"Rights (Amendment) Act, 2019, are as follows:"
,1. It provided that a person who has been a judge of the
,Supreme Court is also made eligible to be appointed as
,Chairperson of the National Human Rights Commission (in
,addition to the person who has been the Chief Justice of
,India).
,2. It increased the number of members of the National Human
,Rights Commission (who are to be appointed from amongst
,persons having knowledge or practical experience with
,respect to human rights) from two to three out of which at
,least one has to be a woman.
,3. It made the chairpersons of the National Commission for
,BCs and the National Commission for Protection of Child
,Rights as well as the Chief Commissioner for Persons with
,Disabilities as the exofficio members of the National Human
,Rights Commission.
,4. It reduced the term of the chairperson of members of the
,National Human Rights Commission as well as the State
,Human Rights Commission from five to three years. It also
,made them eligible for re-appointment.
,5. It provided that a person who has been a judge of a High
,Court is also made eligible to be appointed as Chairperson
,of the State Human Rights Commission (in addition to the
,person who has been the Chief Justice of a High Court).
,6. It provided that the central government may confer upon the
,State Human Rights Commissions the functions relating to
,"human rights being discharged by the union territories,"
,except the union territory of Delhi. The functions relating to
,human rights in case of union territory of Delhi are to be
,dealt with by the National Human Rights Commission.
,7. It provided that the Secretary-General of the National
,Human Rights Commission shall exercise all administrative
,and financial powers (except judicial functions and the power
,"to make regulations), subject to control of the chairperson."
,8. It provided that the Secretary of the State Human Rights
,Commission shall exercise all administrative and financial
,"powers of the Commission, subject to control of the"
,chairperson.
,
,
,NOTES AND REFERENCES
,1. The Headquarters of the State Human Rights
,Commission shall be at such place as the state
,"government may, by notification, specify."
,"2. These are (in 2019): Assam, Andhra Pradesh,"
,Telangana (combined Commission for Andhra Pradesh
,"and Telangana), Bihar, Chhattisgarh, Gujarat, Goa,"
,"Himachal Pradesh, Jammu and Kashmir, Kerala,"
,"Karnataka, Madhya Pradesh, Maharashtra, Manipur,"
,"Odisha, Punjab, Rajasthan, Tamil Nadu, Uttar Pradesh,"
,"West Bengal, Jharkhand, Sikkim, Uttarakhand,"
,"Haryana, Tripura and Meghalaya."
,3. The 2006 Amendment reduced the number of members
,of State Human Rights Commission from five to three
,and also changed the eligibility condition for
,appointment of member of the Commission.
,4. Before each House of State Legislature where it
,"consists of two Houses, or where such Lagislature"
,"consist of one House, before that House."
, 57      Central Information Commission
,
,
,
,
,T
,he Central Information Commission was established by the
,Central Government in 2005. It was constituted through an
,Official Gazette Notification under the provisions of the
,"Right to Information Act (2005). Hence, it is not a constitutional"
,body. The Central Information Commission is a high-powered
,independent body which inter alia looks into the complaints made
,to it and decide the appeals. It entertains complaints and appeals
,"pertaining to offices, financial institutions, public sector"
,"undertakings, etc., under the Central Government and the Union"
,Territories.
, COMPOSITION
,
,The Commission consists of a Chief Information Commissioner
,and not more than ten Information Commissioners. The
,"Commission, when constituted initially, had five commissioners"
,"including the Chief Information Commissioner. At present (2019),"
,the Commission has six Information Commissioners apart from
,the Chief Information Commissioner1. They are appointed by the
,President on the recommendation of a committee consisting of the
,"Prime Minister as Chairperson, the Leader of Opposition in the"
,Lok Sabha and a Union Cabinet Minister nominated by the Prime
,Minister2. They should be persons of eminence in public life with
,"wide knowledge and experience in law, science and technology,"
,"social service, management, journalism, mass media or"
,administration and governance. They should not be a Member of
,Parliament or Member of the Legislature of any State or Union
,Territory. They should not hold any other office of profit or
,connected with any political party or carrying on any business or
,pursuing any profession.
, TENURE AND SERVICE CONDITIONS
,The Chief Information Commissioner and an Information
,Commissioner shall hold office for such term as prescribed by the
,"Central Government or until they attain the age of 65 years,"
,whichever is earlier. They are not eligible for reappointment3 .
,The President can remove the Chief Information Commissioner
,or any Information Commissioner from the office under the
,following circumstances:
,(a) if he is adjudged an insolvent; or
,(b) if he has been convicted of an offence which (in the opinion
,of the President) involves a moral turpitude; or
,(c) if he engages during his term of office in any paid
,employment outside the duties of his office; or
,(d) if he is (in the opinion of the President) unfit to continue in
,office due to infirmity of mind or body; or
,(e) if he has acquired such financial or other interest as is likely
,to affect prejudicially his official functions.
,"In addition to these, the President can also remove the Chief"
,Information Commissioner or any Information Commissioner on
,"the ground of proved misbehaviour or incapac-ity4. However, in"
,"these cases, the President has to refer the matter to the Supreme"
,"Court for an enquiry. If the Supreme Court, after the enquiry,"
,"upholds the cause of removal and advises so, then the President"
,can remove him.
,"The salary, allowances and other service conditions of the"
,Chief      Information     Commissioner         and   an  Information
,Commissioner shall be such as prescribed by the Central
,"Government. But, they cannot be varied to his disadvantage"
,during service.
, POWERS AND FUNCTIONS
,
,The powers and functions of the Central Information Commission
,are:
,1. It is the duty of the Commission to receive and inquire into a
,complaint from any person:
,(a) who has not been able to submit an information request
,because of non-appointment of a Public Information
,Officer;
,(b) who has been refused information that was requested;
,(c) who has not received response to his information
,request within the specified time limits;
,(d) who thinks the fees charged are unreasonable;
,"(e) who thinks information given is incomplete, misleading"
,or false; and
,(f) any other matter relating to obtaining information.
,2. The Commission can order inquiry into any matter if there
,are reasonable grounds (suo-moto power).
,"3. While inquiring, the Commission has the powers of a civil"
,court in respect of the following matters:
,(a) summoning and enforcing attendance of persons and
,compelling them to give oral or written evidence on oath
,and to produce documents or things;
,(b) requiring the discovery and inspection of documents;
,(c) receiving evidence on affidavit;
,(d) requisitioning any public record from any court or office;
,(e) issuing summons for examination of witnesses or
,documents; and
,(f) any other matter which may be prescribed.
,"4. During the inquiry of a complaint, the Commission may"
,examine any record which is under the control of the public
,authority and no such record may be withheld from it on any
,"grounds. In other words, all public records must be given to"
,the Commission during inquiry for examination.
,5. The Commission has the power to secure compliance of its
,decisions from the public authority. This includes:
,(a) providing access to information in a particular form;
,     (b) directing the public authority to appoint a Public
,Information Officer where none exists;
,(c) publishing information or categories of information;
,(d) making necessary changes to the practices relating to
,"management, maintenance and destruction of records;"
,(e) enhancing training provision for officials on the right to
,information;
,(f ) seeking an annual report from the public authority on
,compliance with this Act;
,(g) requiring the public authority to compensate for any loss
,or other detriment suffered by the applicant;
,(h) imposing penalties under this Act5 ; and
,(i) rejecting the application.
,6. The Commission submits an annual report to the Central
,Government on the implementation of the provisions of this
,Act. The Central Government places this report before each
,House of Parliament.
,7. When a public authority does not conform to the provisions
,"of this Act, the Commission may recommend (to the"
,authority) steps which ought to be taken for promoting such
,conformity.
,
,Table 57.1 National Commissions / Central Bodies and the
,Related Ministries
,Sl. Commission / Body               Falls Under
,No.
,1.   Central Information           Ministry of Personnel
,Commission
,2.   Finance Commission            Ministry of Finance
,3.   Union Public Service          Ministry of Personnel
,Commission
,4.   Inter-State Council           Ministry of Home Affairs
,5.   Staff Selection Commission Ministry of Personnel
,6.   National Commission for       Ministry of Social Justice &
,SCs                           Empowerment
,7.    National Commission for      Ministry of Tribal Affairs
,STs
,8.    Central Vigilance            Ministry of Personnel
,Commission
,9.    Zonal Councils               Ministry of Home Affairs
,10.   Central Bureau of            Ministry of Personnel
,Investigation
,11.   National Investigation       Ministry of Home Affairs
,Agency
,12.   Commissioner for Linguistic Ministry of Minority Affairs
,Minorities
,13.   National Commission for      Ministry of Women and
,Protection of Child Rights   Child Development
,14.   National Commission for      Ministry of Social Justice &
,Backward Classes             Empowerment
,15.   Central Commissioner for     Ministry of Social Justice &
,Disabled Persons             Empowerment
,16.   Central Social Welfare       Ministry of Women and
,Board                        Child Development
,17.   North Eastern Council        Ministry of Development of
,the North Eastern Region
,18.   Central Administrative       Ministry of Personnel
,Tribunal
,19.   National Commission for      Ministry of Minority Affairs
,Minorities
,20.   National Human Rights        Ministry of Home Affairs
,Commission
,21.   National Commission for      Ministry of Women and
,Women                        Child Development
,22.   Good and Services Tax        Ministry of Finance
,Council
,23.   Lokpal                       Ministry of Personnel
,24.   National Investigation       Ministry of Home Affairs
,      Agency
,25.   National Disaster            Ministry of Home Affairs
,Management Authority
,26.   Attorney General of India    Ministry of Law and Justice
,27.   Solicitor General of India   Ministry of Law and Justice
,28.   Law Commission of India      Ministry of Law and Justice
,29.   Election Commission of       Ministry of Law and Justice
,India
,30.   Delimitation Commission of Ministry of Law and Justice
,India
,
,
,NOTES AND REFERENCES
,"1. Annual Report 2018–2019, Ministry of Personnel,"
,"Government of India, p. 144."
,2. Where the Leader of Opposition in the Lok Sabha has
,"not been recognized as such, the Leader of the single"
,largest group in opposition of the Government in the Lok
,Sabha shall be deemed to be the Leader of the
,Opposition.
,3. The Information Commissioner is eligible for
,appointment as Chief Information Commissioner but
,cannot hold office for more than a total of five years
,including his term as Information Commissioner.
,"4. He is deemed to be guilty of misbehaviour, if he is"
,concerned or interested in any contract or agreement
,made by the Central Government or participates in any
,way in the profit of such contract or agreement or in any
,benefit or emolument arising there from otherwise than
,as a member and in common with the other members of
,an incorporated company.
,5. The Commission can impose a penalty on the Public
,Information Officer at the rate of ₹250 per day upto a
,"maximum of ₹25,000. It can also recommend for"
,disciplinary action against the errant official.
, 58      State Information Commission
,
,
,
,
,T
,he Right to Information Act of 2005 provides for the
,creation of not only the Central Information Commission
,but also a State Information Commission at the state level.
,"Accordingly, all the states have constituted the State Information"
,Commissions through Official Gazette Notifications.
,The State Information Commission is a high-powered
,independent body which interalia looks into the complaints made
,to it and decide the appeals. It entertains complaints and appeals
,"pertaining to offices, financial institutions, public sector"
,"undertakings, etc., under the concerned state government."
, COMPOSITION
,
,The Commission consists of a State Chief Information
,Commissioner and not more than ten State Information
,Commissioners1. They are appointed by the Governor on the
,recommendation of a committee consisting of the Chief Minister
,"as Chairperson, the Leader of Opposition in the Legislative"
,Assembly and a State Cabinet Minister nominated by the Chief
,Minister2. They should be persons of eminence in public life with
,"wide knowledge and experience in law, science and technology,"
,"social service, management, journalism, mass media or"
,administration and governance. They should not be a Member of
,Parliament or Member of the Legislature of any State or Union
,Territory. They should not hold any other office of profit or
,connected with any political party or carrying on any business or
,pursuing any profession.
, TENURE AND SERVICE CONDITIONS
,The State Chief Information Commissioner and a State
,Information Commissioner shall hold office for such term as
,prescribed by the Central Government or until they attain the age
,"of 65 years, whichever is earlier. They are not eligible for"
,reappointment3 .
,The Governor can remove the State Chief Information
,Commissioner or any State Information Commissioner from the
,office under the following circumstances:
,(a) if he is adjudged an insolvent; or
,(b) if he has been convicted of an offence which (in the opinion
,of the Governor) involves a moral turpitude; or
,(c) if he engages during his term of office in any paid
,employment outside the duties of his office; or
,(d) if he is (in the opinion of the Governor) unfit to continue in
,office due to infirmity of mind or body; or
,(e) if he has acquired such financial or other interest as is likely
,to affect prejudicially his official functions.
,"In addition to these, the Governor can also remove the State"
,Chief Information Commissioner or any State Information
,Commissioner on the ground of proved misbehaviour or
,"incapacity4. However, in these cases, the Governor has to refer"
,the matter to the Supreme Court for an enquiry. If the Supreme
,"Court, after the enquiry, upholds the cause of removal and"
,"advises so, then the Governor can remove him."
,"The salary, allowances and other service conditions of the"
,State Chief Information
,Commissioner and a State Information Commissioner shall be
,"such as prescribed by the Central Government. But, they cannot"
,be varied to his disadvantage during service.
, POWERS AND FUNCTIONS
,
,The powers and functions of the State Information Commission
,are:
,1. It is the duty of the Commission to receive and inquire into a
,complaint from any person:
,(a) who has not been able to submit an information request
,because of non-appointment of a Public Information
,Officer;
,(b) who has been refused information that was requested;
,(c) who has not received response to his information
,request within the specified time limits;
,(d) who thinks the fees charged are unreasonable;
,"(e) who thinks information given is incomplete, misleading"
,or false; and
,(f) any other matter relating to obtaining information.
,2. The Commission can order inquiry into any matter if there
,are reasonable grounds (suo-moto power).
,"3. While inquiring, the Commission has the powers of a civil"
,court in respect of the following matters:
,(a) summoning and enforcing attendance of persons and
,compelling them to give oral or written evidence on oath
,and to produce documents or things;
,(b) requiring the discovery and inspection of documents;
,(c) receiving evidence on affidavit;
,(d) requisitioning any public record from any court or office;
,(e) issuing summons for examination of witnesses or
,documents; and
,(f) any other matter which may be prescribed.
,"4. During the inquiry of a complaint, the Commission may"
,examine any record which is under the control of the public
,authority and no such record may be withheld from it on any
,"grounds. In other words, all public records must be given to"
,the Commission during inquiry for examination.
,5. The Commission has the power to secure compliance of its
,decisions from the public authority. This includes:
,(a) providing access to information in a particular form;
,   (b) directing the public authority to appoint a Public
,Information Officer where none exists;
,(c) publishing information or categories of information;
,(d) making necessary changes to the practices relating to
,"management, maintenance and destruction of records;"
,(e) enhancing training provision for officials on the right to
,information;
,(f) seeking an annual report from the public authority on
,compliance with this Act;
,(g) requiring the public authority to compensate for any loss
,or other detriment suffered by the applicant;
,(h) imposing penalties under this Act5 ; and
,(i) rejecting the application.
,6. The Commission submits an annual report to the State
,Government on the implementation of the provisions of this
,Act. The State Government places this report before the
,State Legislature.
,7. When a public authority does not conform to the provisions
,"of this Act, the Commission may recommend (to the"
,authority) steps which ought to be taken for promoting such
,conformity.
," RTI AMENDMENT ACT, 2019"
,
,The various features or provisions of the Right to Information
,"(Amendment) Act, 2019 are as follows:"
,1. It provided that the Chief Information Commissioner and an
,Information Commissioner shall hold office for such term as
,prescribed by the Central Government. Before this
,"amendment, their term was fixed for 5 years."
,"2. It provided that the salary, allowances and other service"
,conditions of the Chief Information Commissioner and an
,Information Commissioner shall be such as prescribed by
,"the Central Government. Before this amendment, the salary,"
,allowances and other service conditions of the Chief
,Information Commissioner were similar to those of the Chief
,Election Commissioner and that of an Information
,Commissioner were similar to those of an Election
,Commissioner.
,3. It provided that the State Chief Information Commissioner
,and a State Information Commissioner shall hold office for
,such term as prescribed by the Central government. Before
,"this amendment, their term was fixed for 5 years."
,"4. It provided that the salary, allowances and other service"
,conditions of the State Chief Information Commissioner and
,a State Information Commissioner shall be such as
,prescribed by the Central Government. Before this
,"amendment, the salary, allowances and other service"
,conditions of the State Chief Information Commissioner were
,similar to those of an Election Commissioner and that of a
,State Information Commissioner were similar to those of the
,Chief Secretary of the state government.
,5. It removed the provisions regarding deductions in salary of
,"the Chief Information Commissioner, an Information"
,"Commissioner, the State Chief Information Commissioner"
,and a State Information Commissioner due to pension or
,any other retirement benefits received by them for their
,previous government service.
,NOTES AND REFERENCES
,1. The number of State Information Commissioners varies
,from one state to another state.
,2. Where the Leader of Opposition in the Legislative
,"Assembly has not been recognized as such, the Leader"
,of the single largest group in opposition of the
,Government in the Legislative Assembly shall be
,deemed to be the Leader of the Opposition.
,3. The State Information Commissioner is eligible for
,appointment as State Chief Information Commissioner
,but cannot hold office for more than a total of five years
,including his term as State Information Commissioner.
,"4. He is deemed to be guilty of misbehaviour, if he is"
,concerned or interested in any contract or agreement
,made by the State Government or participates in any
,way in the profit of such contract or agreement or in any
,benefit or emolument arising there from otherwise than
,as a member and in common with the other members of
,an incorporated company.
,5. The Commission can impose a penalty on the Public
,Information Officer at the rate of ₹250 per day up to a
,"maximum of ₹25,000. It can also recommend for"
,disciplinary action against the errant official.
, 59      Central Vigilance Commission
,
,
,ESTABLISHMENT
,The Central Vigilance Commission (CVC) is the main agency for
,preventing corruption in the Central government. It was
,established in 1964 by an executive resolution of the Central
,government. Its establishment was recommended by the
,Santhanam Committee on Prevention of Corruption1 (1962–64).
,"Thus, originally the CVC was neither a constitutional body nor a"
,"statutory body. Later, in 2003, the Parliament enacted a law"
,conferring statutory status on the CVC2 .
,"In 2004, the CVC has been designated as the agency to"
,receive and act on complaints or disclosure on any allegation of
,corruption or misuse of office from whistle blowers under the
,“Public Interest Disclosure and Protection of Informers’
,"Resolution” (PIDPI), which is popularly known as “Whistle"
,Blowers” Resolution. The Commission is also empowered as the
,only designated agency to take action against complainants
,making motivated or vexatious complaints.2a
,"The CVC is conceived to be the apex vigilance institution, free"
,"of control from any executive authority, monitoring all vigilance"
,activity under the Central Government and advising various
,"authorities in Central Government organisations in planning,"
,"executing, reviewing and reforming their vigilance work."
, COMPOSITION
,
,The CVC is a multi-member body consisting of a Central Vigilance
,Commissioner (chairperson) and not more than two vigilance
,commissioners. They are appointed by the president by warrant
,under his hand and seal on the recommendation of a three-
,"member committee consisting of the prime minister as its head,"
,the Union minister of home affairs and the Leader of the
,Opposition in the Lok Sabha. They hold office for a term of four
,"years or until they attain the age of sixty five years, whichever is"
,"earlier. After their tenure, they are not eligible for further"
,employment under the Central or a state government.
,The president can remove the Central Vigilance Commissioner
,or any vigilance commissioner from the office under the following
,circumstances:
,(a) If he is adjudged an insolvent; or
,(b) If he has been convicted of an offence which (in the opinion
,of the Central government) involves a moral turpitude; or
,"(c) If he engages, during his term of office, in any paid"
,employment outside the duties of his office; or
,"(d) If he is (in the opinion of the president), unfit to continue in"
,office by reason of infirmity of mind or body; or
,(e) If he has acquired such financial or other interest as is likely
,to affect prejudicially his official functions.
,"In addition to these, the president can also remove the Central"
,Vigilance Commissioner or any vigilance commissioner on the
,"ground of proved misbehaviour or incapacity. However, in these"
,"cases, the president has to refer the matter to the Supreme Court"
,"for an enquiry. If the Supreme Court, after the enquiry, upholds the"
,"cause of removal and advises so, then the president can remove"
,"him. He is deemed to be guilty of misbehaviour, if he (a) is"
,concerned or interested in any contract or agreement made by the
,"Central government, or (b) participates in any way in the profit of"
,such contract or agreement or in any benefit or emolument arising
,therefrom otherwise than as a member and in common with the
,other members of an incorporated company.
,"   The salary, allowances and other conditions of service of the"
,Central Vigilance Commissioner are similar to those of the
,Chairman of UPSC and that of the vigilance commissioner are
,similar to those of a member of UPSC. But they cannot be varied
,to his disadvantage after his appointment.
, ORGANISATION
,
,"The CVC has its own Secretariat, Chief Technical Examiners’"
,Wing (CTE) and a wing of Commissioners for Departmental
,Inquiries (CDIs).
,"Secretariat: The Secretariat consists of a Secretary, Joint"
,"Secretaries, Deputy Secretaries, Under Secretaries and office"
,staff.
,Chief Technical Examiners’ Wing: The Chief Technical
,Examiners’ Organisation constitutes the technical wing of the
,CVC. It consists of Chief Engineers (designated as Chief
,Technical Examiners) and supporting engineering staff. The main
,functions assigned to this organisation are as follows:
,(i) Technical audit of construction works of Government
,organisations from a vigilance angle
,(ii) Investigation of specific cases of complaints relating to
,construction works
,(iii) Extension of assistance to CBI in their investigations involving
,technical matters and for evaluation of properties in Delhi
,(iv) Tendering of advice / assistance to the CVC and Chief
,Vigilance Officers in vigilance cases involving technical
,matters
,Commissioners for Departmental Inquiries: The CDIs function
,as Inquiry Officers to conduct oral inquiries in departmental
,proceedings initiated against public servants.
, FUNCTIONS
,
,The functions of the CVC are:
,1. To inquire or cause an inquiry or investigation to be
,conducted on a reference made by the Central government
,wherein it is alleged that a public servant being an employee
,"of the Central government or its authorities3 , has committed"
,"an offence under the Prevention of Corruption Act, 1988."
,2. To inquire or cause an inquiry or investigation to be
,conducted into any complaint against any official belonging
,to the below mentioned category of officials wherein it is
,alleged that he has committed an offence under the
,"Prevention of Corruption Act, 1988:"
,(a) Members of all-India services4 serving in the Union and
,Group ‘A’ officers of the Central government; and
,(b) Specified level of officers of the authorities of the Central
,government.
,3. To exercise superintendence over the functioning of the
,Delhi Special Police Establishment (CBI) insofar as it relates
,to the investigation of offences under the Prevention of
,"Corruption Act, 1988."
,4. To give directions to the Delhi Special Police Establishment
,(CBI) for superintendence insofar as it relates to the
,investigation of offences under the Prevention of Corruption
,"Act, 1988."
,5. To review the progress of investigations conducted by the
,Delhi Special Police Establishment into offences alleged to
,have been committed under the prevention of Corruption
,"Act, 1988."
,6. To review the progress of applications pending with the
,competent authorities for sanction of prosecution under the
,"Prevention of Corruption Act, 1988."
,7. To tender advise to the Central government and its
,authorities on such matters as are referred to it by them.
,8. To exercise superintendence over the vigilance
,administration in the ministries of the Central government or
,its authorities.
,   9. To undertake or cause an inquiry into complaints received
,under the Public Interest Disclosure and Protection of
,Informers’ Resolution and recommend appropriate action.
,10. The Central Government is required to consult the CVC in
,making rules and regulations governing the vigilance and
,disciplinary matters relating to the members of Central
,Services and AllIndia Services.
,11. The Central Vigilance Commissioner (CVC) is the
,Chairperson and the two Vigilance Commissioners along
,"with Secretaries of M/o Home Affairs, D/o Personnel and"
,Training and the D/o Revenue in M/o Finance are the
,"Members of the Selection Committees, on whose"
,recommendation the Central Government appoints the
,"Director of Enforcement. Further, this Committee, in"
,"consultation with the Director of Enforcement, recommends"
,officers for appointments to the posts above the level of
,Deputy Director of Enforcement.
,12. The Central Vigilance Commission has been notified as a
,specific authority to receive information relating to suspicious
,"transactions under the Prevention of Money Laundering Act,"
,2002
,The Lokpal and Lokayuktas Act (2013) amended both the CVC
,Act (2003) and the Delhi Special Police Establishment Act (1946)
,and made the following changes with respect to the functions of
,the CVC.4a
,13. The Director of Prosecution under the Directorate of
,Prosecution in CBI shall be appointed by the Central
,Government on the recommendation of the Central Vigilance
,Commission.
,14. The Central Vigilance Commissioner (CVC) is the
,Chairperson and the two Vigilance Commissioners alongwith
,Secretaries of M/o Home Affairs and D/o Personnel and
,"Training are the Members of the Selection Committees, on"
,whose recommendation the Central Government appoints
,officers to the posts of the level of SP and above in the CBI
,except Director of CBI.
,15. The Commission has been empowered to conduct
,preliminary inquiry into complaints referred by Lokpal in
,"respect of officers and officials of Groups A, B, C & D, for"
,which a Directorate of Inquiry for making preliminary inquiry
,is to be set up in the Commission. The preliminary inquiry
,reports in such matters referred by Lokpal in respect of
,Group A and B officers are required to be sent to the Lokpal
,"by the Commission. Further, as per mandate, the"
,Commission is to cause further investigation into such
,Lokpal references in respect of Group C and D officials and
,decide on further course of action against them.
, JURISDICTION
,
,The jurisdiction of the CVC extends to the following:
,1. Members of All India Services serving in connection with the
,affairs of the Union and Group A officers of the Central
,Government.
,2. Officers of the rank of Scale V and above in the Public
,Sector Banks.
,"3. Officers in Grade D and above in Reserve Bank of India,"
,NABARD and SIDBI.
,4. Chief Executives and Executives on the Board and other
,officers of E-8 and above in Schedule ‘A’ and ‘B’ Public
,Sector Undertakings.
,5. Chief Executives and Executives on the Board and other
,officers of E-7 and above in Schedule ‘C’ and ‘D’ Public
,Sector Undertakings.
,6. Managers and above in General Insurance Companies.
,7. Senior Divisional Managers and above in Life Insurance
,Corporation.
,8. Officers drawing salary of ₹8700/- per month (pre-revised)
,"and above on Central Government D.A. pattern, as may be"
,"revised from time to time, in societies and local authorities"
,owned or controlled by the Central Government.
, WORKING
,
,The CVC conducts its proceedings at its headquarters (New
,Delhi). It is vested with the power to regulate its own procedure. It
,has all the powers of a civil court and its proceedings have a
,judicial character. It may call for information or report from the
,Central government or its authorities so as to enable it to exercise
,general supervision over the vigilance and anti-corruption work in
,them.
,"The CVC, on receipt of the report of the inquiry undertaken by"
,"any agency on a reference made by it, advises the Central"
,government or its authorities as to the further course of action.
,The Central government or its authorities shall consider the advice
,"of the CVC and take appropriate action. However, where the"
,Central government or any of its authorities does not agree with
,"the advice of the CVC, it shall communicate the reasons (to be"
,recorded in writing) to the CVC.
,The CVC has to present annually to the President a report on
,its performance. The President places this report before each
,House of Parliament.
, VIGILANCE UNITS IN THE MINISTRIES
,
,All ministries/departments in the Union Government have a Chief
,Vigilance Officer (CVO) who heads the Vigilance Division of the
,"organisation concerned, assisting and advising the Secretary or"
,Head of Office in all matters pertaining to vigilance. He also
,provides a link between his organisation and the Central Vigilance
,Commission on the one hand and his organisation and the Central
,Bureau of Investigation on the other. Vigilance functions
,performed by the CVO include
,(i) Collecting intelligence about corrupt practices of the
,employees of his organisation
,(ii) Investigating verifiable allegations reported to him
,(iii) Processing investigation reports for further consideration of
,the disciplinary authority concerned
,(iv) Referring matters to the Central Vigilance Commission for
,advice wherever necessary5
, WHISTLE BLOWERS PROTECTION ACT (2014)
,
,The salient features of the Whistle Blowers Protection Act (2014)6
,are as follows7 :
,1. The Act provides a mechanism for protecting the identity of
,whistle blowers (a term given to people who expose
,corruption). People who expose corruption in Government or
,irregularities by public functionaries can now be free of any
,fear of victimization.
,2. The Act also provides for a system to encourage people to
,disclose information about corruption or the wilful misuse of
,"power by public servants, including ministers."
,"3. As per the Act, a person can make a public interest"
,disclosure on corruption before a competent authority -
,which is at present the Central Vigilance Commission (CVC).
,"The government, by notification, can appoint any other body"
,also for receiving such complaints about corruption.
,"4. The Act, however, lays down punishment of up to two years"
,"in prison and a fine of up to ₹30,000 for false or frivolous"
,complaints.
,5. The Act says that every disclosure shall be made in good
,faith and the person making the disclosure shall provide a
,personal declaration stating that he reasonably believes that
,the information disclosed by him and the allegation
,contained therein is substantially true.
,6. Disclosures can be made in writing or by email message in
,accordance with the procedure as may be prescribed and
,contain full particulars and be accompanied by supporting
,"documents, or other material."
,"7. However, no action shall be taken on a disclosure if it does"
,not indicate the identity of the complainant or public servant
,or if “the identity of the complainant or public servant is
,found to be incorrect.”
,8. The Act is not applicable to the Special Protection Group.
,
,
,NOTES AND REFERENCES
, 1. The Committee on Prevention of Corruption with
,"parliamentarian K. Santhanam as the Chairman, four"
,"other MPs and two senior officers as members, was"
,appointed by the Government of India in 1962.
,2. The Central Vigilance Commission Bill having been
,passed by both the Houses of Parliament received the
,assent of the president on 11 September 2003. It came
,on the statute Book as the Central Vigilance
,"Commission Act, 2003."
,"2a. Annual Report 2015–16, Ministry of Personnel,"
,"Government of India, p. 101."
,3. The authorities of the Central government include a
,corporation established by or under any Central act and
,"government company, society and any local authority"
,owned or controlled by the Central government.
,4. The All-India Services include Indian Administrative
,"Service (IAS), Indian Police Service (IPS) and Indian"
,Forest Service (IFS).
,"4a. Annual Report 2015, Central Vigilance Commission, pp."
,2–4.
,"5. Report on Ethics in Governance, January 2007, Second"
,"Administrative Reforms Commission, Government of"
,"India, p. 106."
,"6. Originally, the year of the Act was 2011. Later, it was"
,changed to 2014.
,"7. The Indian Express, “Whistleblowers Protection Act"
,"gets President’s nod”, May 13, 2014."
, 60       Central Bureau of Investigation
,
,
,ESTABLISHMENT OF CBI
,The Central Bureau of Investigation (CBI) was set up in 1963 by a
,"resolution of the Ministry of Home Affairs. Later, it was transferred"
,to the Ministry of Personnel and now it enjoys the status of an
,attached office1. The Special Police Establishment (which looked
,into vigilance cases) setup in 1941 was also merged with the CBI.
,The establishment of the CBI was recommended by the
,Santhanam Committee on Prevention of Corruption (1962–1964).
,The CBI is not a statutory body. It derives its powers from the
,"Delhi Special Police Establishment Act, 1946."
,The CBI is the main investigating agency of the Central
,Government. It plays an important role in the prevention of
,corruption and maintaining integrity in administration. It also
,provides assistance to the Central Vigilance Commission and
,Lokpal.
,There is a difference between the nature of cases investigated
,by the National Investigation Agency (NIA) and the CBI. The NIA
,has been constituted after the Mumbai terror attack in 2008 mainly
,"for investigation of incidents of terrorist attacks, funding of"
,"terrorism and other terror related crime, whereas the CBI"
,"investigates crime of corruption, economic offences and serious"
,and organized crime other than terrorism.
," MOTTO, MISSION AND VISION OF CBI"
,
,"Motto: Industry, Impartiality and Integrity Mission: To uphold the"
,Constitution of India and law of the land through in-depth
,investigation and successful prosecution of offences; to provide
,leadership and direction to police forces and to act as the nodal
,agency for enhancing inter-state and international cooperation in
,law enforcement
,"Vision: Based on its motto, mission and the need to develop"
,"professionalism, transparency, adaptability to change and use of"
,"science and technology in its working, the CBI will focus on"
,"1. Combating corruption in public life, curbing economic and"
,violent crimes through meticulous investigation and
,prosecution
,2. Evolving effective systems and procedures for successful
,investigation and prosecution of cases in various law courts
,3. Helping fight cyber and high technology crime
,4. Creating a healthy work environment that encourages team-
,"building, free communication and mutual trust"
,5. Supporting state police organisations and law enforcement
,"agencies in national and international cooperation,"
,particularly relating to enquiries and investigation of cases
,6. Playing a lead role in the war against national and
,transnational organised crime
,"7. Upholding human rights, protecting the environment, arts,"
,antiques and heritage of our civilisation
,"8. Developing a scientific temper, humanism and the spirit of"
,inquiry and reform
,9. Striving for excellence and professionalism in all spheres of
,functioning so that the organisation rises to high levels of
,endeavor and achievement.
, ORGANISATION OF CBI
,"Originally (1963), the CBI was set up with the following six"
,divisions:
,(i) Investigation and Anti-Corruption Division (Delhi Special
,Police Establishment)
,(ii) Technical Division
,(iii) Crime Records and Statistics Division
,(iv) Research Division
,(v) Legal and General Division
,(vi) Administration Division
,"At present (2019), the CBI has the following seven divisions:"
,1. Anti-Corruption Division
,2. Economic Offences Division
,3. Special Crimes Division
,4. Policy and Coordination Division
,5. Administration Division
,6. Directorate of Prosecution
,7. Central Forensic Science Laboratory
, COMPOSITION OF CBI
,
,The CBI is headed by a Director. He is assisted by a special
,"director or an additional director. Additionally, it has a number of"
,"joint directors, deputy inspector generals, superintendents of"
,"police and all other usual ranks of police personnel. In total, it has"
,"about 5000 staff members, about 125 forensic scientists and"
,about 250 law officers.
,"The Director of CBI as Inspector-General of Police, Delhi"
,"Special Police Establishment, is responsible for the administration"
,"of the organisation. With the enactment of CVC Act, 2003, the"
,superintendence of Delhi Special Police Establishment vests with
,the Central Government save investigations of offences under the
,"Prevention of Corruption Act, 1988, in which, the superintendence"
,vests with the Central Vigilance Commission. The Director of CBI
,has been provided security of two-year tenure in office by the
,"CVC Act, 2003."
,The Lokpal and Lokayuktas Act (2013) amended the Delhi
,Special Police Establishment Act (1946) and made the following
,changes with respect to the composition of the CBI:
,1. The Central Government shall appoint the Director of CBI on
,the recommendation of a three-member committee
,"consisting of the Prime Minister as Chairperson, the Leader"
,of Opposition in the Lok Sabha and the Chief Justice of India
,or Judge of the Supreme Court nominated by him.
,2. There shall be a Directorate of prosecution headed by a
,Director for conducting the prosecution of cases under the
,"Lokpal and Lokayuktas Act, 2013. The Director of"
,Prosecution shall be an officer not below the rank of Joint
,Secretary to the Government of India. He shall function
,under the overall supervision and control of the Director of
,CBI. He shall be appointed by the Central Government on
,the recommendation of the Central Vigilance Commission.
,He shall hold office for a period of two years.
,3. The Central Government shall appoint officers of the rank of
,SP and above in the CBI on the recommendation of a
,committee consisting of the Central Vigilance Commissioner
,"      as Chairperson, the Vigilance Commissioners, the Secretary"
,of the Home Ministry and the Secretary of the Department of
,Personnel.
,"Later, the Delhi Special Police Establishment (Amendment) Act,"
,2014 made a change in the composition of the committee related
,to the appointment of the Director of C.B.I. It states that where
,"there is no recognized leader of opposition in the Lok Sabha, then"
,the leader of the single largest opposition party in the Lok Sabha
,would be a member of that committee.
, FUNCTIONS OF CBI
,
,The functions of CBI are:
,"(i) Investigating cases of corruption, bribery and misconduct of"
,Central government employees.
,(ii) Investigating cases relating to infringement of fiscal and
,"economic laws, that is, breach of laws concerning export and"
,"import control, customs and central excise, income tax,"
,"foreign exchange regulations and so on. However, such"
,cases are taken up either in consultation with or at the
,request of the department concerned.
,"(iii) Investigating serious crimes, having national and international"
,"ramifications, committed by organised gangs of professional"
,criminals.
,(iv) Coordinating the activities of the anticorruption agencies and
,the various state police forces
,"(v) Taking up, on the request of a state government, any case of"
,public importance for investigation.
,(vi) Maintaining crime statistics and disseminating criminal
,information.
,The CBI is a multidisciplinary investigation agency of the
,Government of India and undertakes investigation of corruption-
,"related cases, economic offences and cases of conventional"
,crime. It normally confines its activities in the anti-corruption field
,to offences committed by the employees of the Central
,Government and Union Territories and their public sector
,undertakings. It takes up investigation of conventional crimes like
,"murder, kidnapping, rape etc., on reference from the state"
,governments or when directed by the Supreme Court/High Courts.
,The CBI acts as the “National Central Bureau” of Interpol in
,India. The Interpol Wing of the CBI coordinates requests for
,investigation-related activities originating from Indian law
,enforcement agencies and the member countries of the Interpol.
, PROVISION OF PRIOR PERMISSION
,
,The CBI is required to obtain the prior approval of the Central
,Government before conducting any inquiry or investigation into an
,offence committed by officers of the rank of joint secretary and
,above in the Central Government and its authorities.
,"However, on May 6, 2014, the Supreme Court held as invalid"
,the legal provision that makes prior sanction mandatory for the
,Central Bureau of Investigation to conduct a probe against senior
,bureaucrats in corruption cases under the Prevention of
,Corruption Act.2
,A Constitution Bench held that Section 6A of the Delhi Special
,"Police Establishment Act, which granted protection to joint"
,secretary and above officers from facing even a preliminary
,"inquiry by the CBI in corruption cases, was violative of Article 14."
,"Welcoming the court order, CBI Director said: “It is a landmark"
,judgment that will empower the agency in the investigations into
,several cases pending due to the provision that has now been
,struck down by the Constitution Bench. We had for long been of
,the view that inquiry against senior officials need not require any
,prior permission.”
,"Writing the judgment, the CJI said, “Corruption is an enemy of"
,"[the] nation and tracking down a corrupt public servant,"
,"howsoever high he may be, and punishing such person is a"
,"necessary mandate under the PC Act, 1988. The status or"
,position of a public servant does not qualify the person from
,exemption from equal treatment. The decision-making power does
,not segregate corrupt officers into two classes as they are
,common crime doers and have to be tracked down by the same
,process of inquiry and investigation.”
,"The Bench said, “Section 6A of the DSPE Act [granting"
,protection to one set of officers] is directly destructive and runs
,"counter to the object and reason of the PC Act, 1988. It also"
,undermines the object of detecting and punishing high-level
,corruption. How can two public servants against whom there are
,allegations of corruption or graft or bribe taking or criminal
,"misconduct under the PC Act, 1988, be made to be treated"
,differently because one happens to be a junior officer and the
,other a senior decision maker?”
,“The provision in Section 6A impedes tracking down the corrupt
,senior bureaucrats as without previous approval of the Central
,"Government, the CBI cannot even hold preliminary inquiry much"
,less an investigation into the allegations. The protection under
,"Section 6A has propensity of shielding the corrupt,” the Bench"
,added.
,Observing that there could not be any protection to corrupt
,"public servants, the Bench said, “The aim and object of"
,investigation is ultimately to search for truth and any law that
,impedes that object may not stand the test of Article 14. Breach of
,"rule of law, in our opinion, amounts to negation of equality under"
,Article 14. Section 6-A fails in the context of these facets of Article
,14.”
, CBI VS. STATE POLICE
,
,The role of the Special Police Establishment (a division of CBI) is
,supplementary to that of the state police forces. Along with state
,"police forces, the Special Police Establishment (SPE) enjoys the"
,concurrent powers of investigation and prosecution for offences
,"under the Delhi Police Establishment Act, 1946. However, to avoid"
,"duplication and overlapping of cases between these two agencies,"
,the following administrative arrangements have been made:
,(i) The SPE shall take up such cases which are essentially and
,substantially concerned with the Central Government’s affairs
,"or employees, even if they also involve certain state"
,government employees.
,(ii) The state police force shall take up such cases which are
,substantially concerned with the state government’s affairs or
,"employees, even if they also involve certain Central"
,Government employees.
,(iii) The SPE shall also take up cases against employees of
,public undertakings or statutory bodies established and
,financed by the Central Government.
, CBI ACADEMY
,
,"The CBI Academy is located at Ghaziabad, Uttar Pradesh and"
,"started functioning in 1996. Earlier, training programmes were"
,"being conducted at the CBI Training Centre, New Delhi."
,The vision of the CBI Academy is “Excellence in Training in the
,"Fields of Crime Investigation, Prosecution and Vigilance"
,Functioning” and its mission is to train the human resources of
,"CBI, state police and the vigilance organisations to become"
,"professional, industrious, impartial, upright and dedicated to the"
,service of the nation.
,The academy is the focal point of training activities within the
,organisation and is responsible for identification of suitable
,"training programmes, regulation of nominations of trainees and"
,preparation of the annual training calendar.
,"Beside the CBI Academy at Ghaziabad, there are three"
,regional training centres imparting training at regional levels at
,"Kolkata, Mumbai and Chennai."
,There are two kinds of training courses which are being
,conducted in the CBI Academy:
,"(i) Short Term In-service Courses: For officers of the CBI, state"
,"police, central para-military forces and central government"
,undertakings
,(ii) Long Term Basic Courses: For directly recruited deputy
,"superintendents of police, sub-inspectors and constables of"
,CBI.3
,
,
,NOTES AND REFERENCES
,1. The CBI comes under the administrative control of the
,Department of Personnel and Training (DoPT) of the
,Ministry of Personnel.
,"2. The Hindu, “No sanction needed for CBI to probe"
,"bureaucrats: SC,” May 7, 2014."
,"3. Annual Report 2012, Central Bureau of Investigation,"
,"Government of India, pp. 92–93."
, 61      Lokpal and Lokayuktas
,
,
,GLOBAL SCENARIO
,
,Modern democratic states are characterised by a welfare orientation.
,"Hence, the government has come to play an important role in the"
,socio-economic development of a nation. This has resulted in the
,expansion of bureaucracy and the multiplication of administrative
,"process, which in turn increased the administrative power and"
,discretion enjoyed by the civil servants at different levels of the
,government. The abuse of this power and discretion by civil servants
,"opens up scope for harassment, malpractices, maladministration and"
,corruption. Such a situation gives rise to citizens’ grievances against
,administration1 .
,The success of democracy and the realisation of socio-economic
,development depends on the extent to which the citizens’ grievances
,"are redressed. Therefore, the following institutional devices have"
,been created in different parts of the world to deal with the redressal
,of these grievances:
,1. The Ombudsman System
,2. The Administrative Courts System
,3. The Procurator System
,The earliest democratic institution created in the world for the
,redressal of citizens’ grievance is the Scandinavian institution of
,"Ombudsman. Donald C. Rowat, an international authority on the"
,"Ombudsman, calls it a “uniquely appropriate institution for dealing"
,with the average citizens’ complaints about unfair administrative
,actions.”
,The institution of Ombudsman was first created in Sweden in
,1809. ‘Ombud’ is a Swedish term and refers to a person who acts as
,the representative or spokesman of another person. According to
,"Donald C. Rowat, Ombudsman refers to “an officer appointed by the"
,legislature to handle complaints against administrative and judicial
,action.”
,The Swedish Ombudsman deals with the citizens’ grievances in
,the following matters:
,"  (i) Abuse of administrative discretion, that is, misuse of official"
,power and authority
,"(ii) Maladministration, that is, inefficiency in achieving the targets"
,"(iii) Administrative corruption, that is, demanding bribery for doing"
,things
,"(iv) Nepotism, that is supporting one’s own kith and kin in matters"
,like providing employment
,"(v) Discourtesy, that is, misbehaviour of various kinds, for instance,"
,use of abusive language.
,The Swedish Ombudsman is appointed by the Parliament for a
,term of four years. He can be removed only by the Parliament on
,ground of its loss of confidence in him. He submits his annual report
,"to the Parliament and hence, is also known as ‘Parliamentary"
,Ombudsman.’ But he is independent of the Parliament (legislature)
,as well as the executive and judiciary.
,The Ombudsman is a constitutional authority and enjoys the
,powers to supervise the compliance of laws and regulations by the
,"public officials, and see that they discharge their duties properly. In"
,"other words, he keeps a watch over all public officials–civil, judicial"
,"and military–so that they function impartially, objectively and legally,"
,"that is, in accordance with the law. However, he has no power to"
,reverse or quash a decision and has no direct control over
,administration or the courts.
,The Ombudsman can act either on the basis of a complaint
,received from the citizen against unfair administrative action or suo
,moto (i.e. on his own initiative). He can prosecute any erring official
,"including the judges. However, he himself cannot inflict any"
,punishment. He only reports the matter to the higher authorities for
,taking the necessary corrective action.
,"In sum, the characteristics of the Swedish institution of"
,Ombudsman are as follows:
,(i) Independence of action from the executive
,(ii) Impartial and objective investigation of complaints
,(iii) Suo moto power to start investigations
,(iv) Uninterrupted access to all the files of administration
,(v) Right to report to the Parliament as opposed to the executive;
,the institution of ombudsman is based on the doctrine of
,administrative accountability to legislature.
,(vi) Wide publicity given to its working in press and other media
,"(vii) Direct, simple, informal, cheap and speedy method of handling"
,      complaints
,"From Sweden, the institution of Ombudsman spread to other"
,"Scandinavian countries– Finland (1919), Denmark (1955) and"
,Norway (1962). New Zealand is the first Commonwealth country in
,the world to have adopted the Ombudsman system in the form of a
,Parliamentary Commissioner for Investigation in 1962. The United
,Kingdom adopted Ombudsman-like institution called Parliamentary
,"Commissioner for Administration in 1967. Since then, more than 40"
,counties of the world have adopted Ombudsman-like institutions with
,different nomenclature and functions. The Ombudsman in India is
,called Lokpal/Lokayukta. Donald. C. Rowat says that the institution of
,Ombudsman is a “bulkwork of democratic government against the
,tyranny of officialdom.” While Gerald E. Caiden described the
,Ombudsman as “institutionalised public conscience.”
,Another unique institutional device created for the redressal of
,"citizens’ grievances against administrative authorities, is the French"
,"system of Administrative Courts. Due to its success in France, the"
,system has gradually spread to many other European and African
,"countries like Belgium, Greece and Turkey."
,"The socialist countries like the former USSR (now Russia), China,"
,"Poland, Hungary, Czechoslovakia and Romania have created their"
,own institutional device for the redressal of citizens’ grievances. It is
,called ‘Procurator System’ in these countries. It should be noted here
,that the office of the Procurator-General is still functioning in Russia.
,He is appointed for a tenure of seven years.
, POSITION IN INDIA
,
,The existing legal and institutional framework to check corruption and
,redress citizens’ grievances in India consists of the following:
,"1. Public Servants (Enquiries) Act, 1850"
,"2. Indian Penal Code, 1860"
,"3. Special Police Establishment, 1941"
,"4. Delhi Police Establishment Act, 1946"
,"5. Prevention of Corruption Act, 1988"
,"6. Commissions of Inquiry Act, 1952 (against political leaders and"
,eminent public men)
,"7. All-India Services (Conduct) Rules, 1968"
,"8. Central Civil Services (Conduct) Rules, 1964"
,"9. Railway Services (Conduct) Rules, 1966"
,"10. Vigilance organisations in ministries / departments, attached"
,and subordinate offices and public undertakings
,"11. Central Bureau of Investigation, 1963"
,"12. Central Vigilance Commission, 1964"
,"13. State Vigilance Commissions, 1964"
,14. Anti corruption bureaus in states
,15. Lokpal (Ombudsman) at the Centre
,16. Lokayukta (Ombudsman) in states
,17. Divisional Vigilance Board
,18. District Vigilance Officer
,19. National Consumer Disputes Redressal Commission
,20. National Commission for SCs
,21. National Commission for STs
,22. Supreme Court and High Courts in states
,23. Administrative Tribunals (quasi-judicial bodies)
,"24. Directorate of Public Grievances in the Cabinet Secretariat,"
,1988
,25. Parliament and its committees
,26. ‘File to Field’ programme in some states like Kerala. In this
,"innovative scheme, the administrator goes to the village/area"
,and hears public grievances and takes immediate action
,wherever possible.
, LOKPAL
,
,The Administrative Reforms Commission (ARC) of India (1966–1970)
,recommended the setting up of two special authorities designated as
,‘Lokpal’ and ‘lokayukta’ for the redressal of citizens’ grievances2.
,These institutions were to be set up on the pattern of the institution of
,Ombudsman in Scandinavian countries and the parliamentary
,commissioner for investigation in New Zealand. The Lokpal would
,deal with complaints against ministers and secretaries at Central and
,"state levels, and the lokayukta (one at the Centre and one in every"
,state) would deal with complaints against other specified higher
,officials. The ARC kept the judiciary outside the purview of Lokpal
,"and lokayukta as in New Zealand. But, in Sweden the judiciary is"
,within the purview of Ombudsman.
,"According to the ARC, the Lokpal would be appointed by the"
,"president after consultation with the chief justice of India, the"
,Speaker of Lok Sabha and the Chairman of the Rajya Sabha.
,The ARC also recommended that the institutions of Lokpal and
,lokayukta should have the following features:
,1. They should be demonstratively independent and impartial.
,2. Their investigations and proceedings should be conducted in
,private and should be informal in character.
,"3. Their appointment should be, as far as possible, non-political."
,4. Their status should compare with the highest judicial
,functionaries in the country.
,5. They should deal with matters in the discretionary field
,"involving acts of injustice, corruption or favouritism."
,6. Their proceedings should not be subject to judicial interference.
,7. They should have the maximum latitude and powers in
,obtaining information relevant to their duties.
,8. They should not look forward to any benefit or pecuniary
,advantage from the executive government.
,The Government of India accepted the recommendations of ARC
,"in this regard. So far, ten official attempts have been made to bring"
,about legislation on this subject. Bills were introduced in the
,Parliament in the following years:
,"1. In May 1968, by the Congress Government headed by Indira"
,Gandhi.
,"   2. In April 1971, again by the Congress Government headed by"
,Indira Gandhi.
,"3. In July 1977, by the Janata Government headed by Morarji"
,Desai.
,"4. In August 1985, by the Congress Government headed by Rajiv"
,Gandhi.
,"5. In December 1989, by the National Front Government headed"
,by V.P. Singh.
,"6. In September 1996, by the United Front Government headed"
,by Deve Gowda.
,"7. In August 1998, by the BJP-led coalition Government headed"
,by A.B. Vajpayee.
,"8. In August 2001, by the NDA government headed by A.B."
,Vajpayee.
,"9. In August 2011, by the UPA government headed by Manmohan"
,Singh.
,"10. In December 2011, by the UPA government headed by"
,Manmohan Singh.
,"The first four bills lapsed due to the dissolution of Lok Sabha,"
,while the fifth one was withdrawn by the government. The sixth and
,seventh bills also lapsed due to the dissolution of the 11th and 12th
,"Lok Sabha. Again, the eighth bill (2001) lapsed due to the dissolution"
,of the 13th Lok Sabha in 2004. The ninth bill (2011) was withdrawn by
,the government.
, LOKPAL AND LOKAYUKTAS ACT (2013)
,
,Features
,The salient features of the Lokpal and Lokayuktas Act (2013) are as
,follows.3
,1. It seeks to establish the institution of the Lokpal at the Centre
,and the Lokayukta at the level of the State and thus seeks to
,provide a uniform vigilance and anti-corruption road map for the
,nation both at the Centre and at the States. The jurisdiction of
,"Lokpal includes the Prime Minister, Ministers, Members of"
,"Parliament and Groups A, B, C and D officers and officials of"
,the Central Government.
,2. The Lokpal to consist of a Chairperson with a maximum of 8
,members of which 50% shall be judicial members.
,3. 50% of the members of the Lokpal shall come from amongst
,"the SCs, the STs, the OBCs, minorities and women."
,4. The selection of the Chairperson and the members of Lokpal
,shall be through a Selection Committee consisting of the Prime
,"Minister, the Speaker of the Lok Sabha, the Leader of the"
,"Opposition in the Lok Sabha, the Chief Justice of India or a"
,sitting Supreme Court Judge nominated by the Chief Justice of
,India and an eminent jurist to be nominated by the President of
,India on the basis of recommendations of the first four
,members of the selection committee.
,5. A Search Committee will assist the Selection Committee in the
,process of selection. 50% of the members of the Search
,"Committee shall also be from amongst the SCs, the STs, the"
,"OBCs, minorities and women."
,6. The Prime Minister has been brought under the purview of the
,Lokpal with subject matter exclusions and specific process for
,handling complaints against the Prime Minister.
,"7. Lokpal’s jurisdiction will cover all categories of public servants,"
,"including Group A, Group B, Group C, and Group D officers and"
,employees of Government. On complaints referred to the CVC
,"by the Lokpal, the CVC will send its report of preliminary"
,enquiry in respect of Group A and Group B Officers back to the
,Lokpal for further decision. With respect to categories of
,"employees from Group C and Group D, the CVC will proceed"
,     further in exercise of its own powers under the CVC Act subject
,to reporting and review by the Lokpal.
,8. The Lokpal will have the power of superintendence and
,"direction over any investigating agency, including the CBI, for"
,cases referred to them by the Lokpal.
,9. A High-Powered Committee chaired by the Prime Minister will
,recommend the selection of the Director of CBI.
,10. It incorporates provisions for attachment and confiscation of
,"property of public servants acquired by corrupt means, even"
,while the prosecution is pending.
,"11. It lays down clear timelines. For preliminary enquiry, it is three"
,"months extendable by three months. For investigation, it is six"
,months which may be extended by six months at a time. For
,"trial, it is one year extendable by one year and to achieve this,"
,special courts to be set up.
,12. It enhances maximum punishment under the Prevention of
,Corruption Act from seven years to ten years. The minimum
,"punishment under sections 7, 8, 9 and 12 of the Prevention of"
,"Corruption Act will now be three years, and the minimum"
,punishment under section 15 (punishment for attempt) will now
,be two years.
,13. Institutions which are financed fully or partly by Government
,"are under the jurisdiction of Lokpal, but institutions aided by"
,Government are excluded.
,14. It provides adequate protection for honest and upright public
,servants.
,15. Lokpal conferred with power to grant sanction for prosecution
,of public servants in place of the Government or competent
,authority.
,16. It contains a number of provisions aimed at strengthening the
,CBI such as:
,(i) setting up of a Directorate of Prosecution headed by a Director
,Prosecution under the overall control of the Director of CBI;
,(ii) appointment of the Director of Prosecution on t
,recommendation of the CVC;
,(iii) maintenance of a panel of advocates by CBI other th
,Government advocates with the consent of the Lokpal
,handling Lokpal-referred cases;
,(iv) transfer of officers of CBI investigating cases referred by Lok
,with the approval of Lokpal;
,   (v) provision of adequate funds to CBI for investigating cas
,referred by Lokpal.
,17. All entities receiving donations from foreign source in the
,context of the Foreign Contribution Regulation Act (FCRA) in
,excess of ₹10 lakhs per year are brought under the jurisdiction
,of Lokpal.
,18. It contains a mandate for setting up of the institution of
,Lokayukta through enactment of a law by the State Legislature
,within a period of 365 days from the date of commencement of
,"this Act. Thus, the Act provides freedom to the states to decide"
,upon the contours of the Lokayukta mechanism in their
,respective states.
,
,Drawbacks
,The following are the drawbacks (shortcomings) of the Lokpal and
,"Lokayuktas Act, 20133a:"
,1. Lokpal cannot suo motu proceed against any public servant.
,2. Emphasis on form of complaint rather than substance.
,3. Heavy punishment for false and frivolous complaints against
,public servants may deter complaints being filed to Lokpal.
,4. Anonymous complaints not allowed -Can’t just make a
,complaint on plain paper and drop it in a box with supporting
,documents.
,5. Legal assistance to public servant against whom complaint is
,filed.
,6. Limitation period of 7 years to file complaints.
,7. Very non-transparent procedure for dealing with complaints
,against the PM.
, LOKAYUKTAS
,
,Even much before the enactment of the Lokpal and Lokayuktas Act
,"(2013) itself, many states had already set up the institution of"
,Lokayuktas.
,It must be noted here that the institution of lokayukta was
,established first in Maharashtra in 1971. Although Odisha had
,"passed the Act in this regard in 1970, it came into force only in 1983."
,"Till 2013, 21 states and 1 Union Territory (Delhi) have established"
,the institution of Lokyuktas. The details in this regard are mentioned
,below in Table 61.1.
,
,Table 61.1 Establishment of Lokayukta in States (Chronological
,Order)
,Sl.   States/UTs                              Created in (enacted
,No.                                                   in)
,1.    Odisha                                          1970
,2.    Maharashtra                                     1971
,3.    Rajasthan                                       1973
,4.    Bihar                                           1974
,5.    Uttar Pradesh                                   1975
,6.    Madhya Pradesh                                  1981
,7.    Andhra Pradesh                                  1983
,8.    Himachal Pradesh                                1983
,9.    Karnataka                                       1985
,10.   Assam                                           1985
,11.   Gujarat                                         1986
,12.   Punjab                                          1995
,13.   Delhi                                           1995
,14.   Kerala                                          1999
,15.   Jharkhand                                       2001
,16.   Chattisgarh                                     2002
,  17.   Haryana                                           2002
,18.   Uttarakhand                                       2002
,19.   Jammu and Kashmir3b                               2002
,20.   West Bengal                                       2003
,21.   Tripura                                           2008
,22.   Goa                                               2011
,
,The various aspects of the institution of lokayukta are:
,
,Structural Variations
,The structure of the lokayukta is not same in all the states. Some
,"States like Rajasthan, Karnataka, Andhra Pradesh and Maharashtra"
,"have created the lokayukta as well as upalo-kayukta, while some"
,"others like Bihar, Uttar Pradesh and Himachal Pradesh have created"
,only the lokayukta. There are still other states like Punjab and Orissa
,that have designated officials as Lokpal. This pattern was not
,suggested by the ARC in the states.
,
,Appointment
,The lokayukta and upalokayukta are appointed by the governor of
,"the state. While appointing, the governor in most of the states"
,"consults (a) the chief justice of the state high court, and (b) the leader"
,of Opposition in the state legislative assembly4 .
,
,Qualifications
,Judicial qualifications are prescribed for the lokayukta in the States of
,"Uttar Pradesh, Himachal Pradesh, Andhra Pradesh, Gujarat, Orissa,"
,Karnataka and Assam. But no specific qualifications are prescribed in
,"the states of Bihar, Maharashtra and Rajasthan."
,
,Tenure
,"In most of the states, the term of office fixed for lokayukta is of 5"
,"years duration or 65 years of age, whichever is earlier. He is not"
,eligible for reappointment for a second term.
,Jurisdiction
,There is no uniformity regarding the jurisdiction of lokayukta in all the
,states. The following points can be noted in this regard:
,(a) The chief minister is included within the jurisdiction of lokayukta
,"in the states of Himachal Pradesh, Andhra Pradesh, Madhya"
,"Pradesh and Gujarat, while he is excluded from the purview of"
,"loka-yukta in the states of Maharashtra, Uttar Pradesh,"
,"Rajasthan, Bihar and Orissa."
,(b) Ministers and higher civil servants are included in the purview of
,lokayukta in almost all the states. Maharashtra has also
,included former ministers and civil servants.
,(c) Members of state legislatures are included in the purview of
,"lokayukta in the States of Andhra Pradesh, Himachal Pradesh,"
,"Gujarat, Uttar Pradesh and Assam."
,"(d) The authorities of the local bodies, corporations, companies and"
,societies are included in the jurisdiction of the lokayukta in most
,of the states.
,
,Investigations
,"In most of the states, the lokayukta can initiate investigations either"
,on the basis of a complaint received from the citizen against unfair
,administrative action or suo moto. But he does not enjoy the power to
,start investigations on his own initiative (suo moto) in the States of
,"Uttar Pradesh, Himachal Pradesh and Assam."
,
,Scope of Cases Covered
,The lokayukta can consider the cases of ‘grievances’ as well as
,"‘allegations’ in the States of Maharashtra, Uttar Pradesh, Assam,"
,"Bihar and Karnataka. But, in Himachal Pradesh, Andhra Pradesh,"
,"Rajasthan and Gujarat, the job of lokayuktas is confined to"
,investigating allegations (corruption) and not grievances
,(maladministration).
,
,Other Features
,"1. The lokayukta presents, annually, to the governor of the state a"
,consolidated report on his performance. The governor places
,this report along with an explanatory memorandum before the
,   state legislature. The lokayukta is responsible to the state
,legislature.
,2. He takes the help of the state investigating agencies for
,conducting inquiries.
,3. He can call for relevant files and documents from the state
,government departments.
,4. The recommendations made by the loka-yukta are only
,advisory and not binding on the state government.
,
,
,NOTES AND REFERENCES
,"1. According to the Chambers Dictionary, grievance means ‘a"
,ground of complaint; a condition felt to be oppressive or
,wrongful’.
,2. The ARC headed by Morarji Desai submitted a special
,interim report on the ‘Problems of Redressal of Citizens’
,Grievances’ in 1966.
,"3. Press Information Bureau, Government of India, December"
,"23, 2013."
,"3a. Tixmann’s Guide to Lokpal and Lokayuktas Act 2013, pp.I-"
,9 to I-11.
,"3b. In Jammu and Kashmir, the institution is known as State"
,Accountability Commission (SAC).
,"4. But, in Andhra Pradesh, the leader of the Opposition in the"
,state legislative assembly is not required to be consulted in
,"this regard. In Karnataka, on the other hand, the Chairman"
,"of the state legislative council, the Speaker of the state"
,legislative assembly and the leader of Opposition in the
,state legislative council are also required to be consulted
,on this matter.
, 62      National Investigation Agency
,
,
,ESTABLISHMENT OF THE NIA
,The National Investigation Agency (NIA) was constituted in 2009
,"under the provisions of the National Investigation Agency Act,"
,2008 (NIA Act). It is the central counter-terrorism law enforcement
,agency in the country.
,The NIA was established in the backdrop of the 2008 Mumbai
,"terror attacks, popularly known as the 26/11 incident. This national"
,horror led to the realisation of the need for a separate federal
,agency to deal with terror-related crimes in the country.
,The headquarters of the NIA is at New Delhi. The branch
,"offices of the NIA are located at Hyderabad, Guwahati, Mumbai,"
,"Lucknow, Kochi, Kolkata, Jammu and Raipur. In addition, the NIA"
,has a separate specialised cell known as TFFC Cell dealing with
,the subjects of fake currency notes and terror funding.
,The NIA is headed by a Director-General. He is appointed by
,the central government. His powers are similar to the powers
,exercisable by a Director-General of Police in respect of the police
,force in a state.
,The NIA works under the administrative control of the Ministry
,"of Home Affairs, Government of India. The state government"
,extends all assistance and co-operation to the NIA for
,investigation of the offences specified under the NIA Act.
, RATIONALE OF THE NIA
,
,"While introducing the NIA Bill in the Parliament, the Government"
,of India gave the following reasons for creating the NIA1 :
,"1. Over the past several years, India has been the victim of"
,large-scale terrorism sponsored from across the borders.
,"There have been innumerable incidents of terrorist attacks,"
,not only in the militancy and insurgency affected areas and
,"areas affected by left-wing extremism, but also in the form of"
,"terrorist attacks and bomb blasts, etc., in various parts of the"
,"hinterland and major cities, etc."
,2. A large number of such incidents are found to have complex
,"inter-state and international linkages, and possible"
,connection with other activities like the smuggling of arms
,"and drugs, pushing in and circulation of fake Indian currency,"
,"infiltration from across the borders, etc."
,"3. Keeping all these in view, it was felt that there was a need"
,for setting up of an agency at the central level for the
,investigation of offences related to terrorism and certain
,"other Acts, which have national ramifications."
,4. Several expert committees and the Second Administrative
,Reforms Commission2 have also made recommendations
,for establishing such an agency.
,"5. The Government, after due consideration and examination"
,"of the issues involved, proposed to enact a legislation to"
,make provisions for establishment of an NIA in a concurrent
,"jurisdiction framework, with provisions for taking up specific"
,cases under specific Acts for investigation. These provisions
,are proposed to be incorporated in the National Investigation
,"Agency Bill, 2008."
, FUNCTIONS OF THE NIA
,The NIA is mandated to investigate and prosecute offences under
,the various Acts mentioned in the Schedule of the NIA Act. In
,"pursuance of its mandate, the NIA collects, collates and analyses"
,counter-terrorism investigation. It also shares inputs with its sister
,intelligence agencies and law enforcement units both at central
,and state governments level.
,"In more detail, the functions assigned to the NIA are as follows3"
,:
,(a) To investigate and prosecute offences in respect of the Acts
,specified in the Schedule of the NIA Act.
,"(b) To provide assistance to, and seek assistance from, other"
,intelligence and investigation agencies of the central
,government and state governments.
,(c) To take other such measures which may be necessary for
,speedy and effective implementation of the provisions of the
,NIA Act.
, VISION OF THE NIA
,
,The following points highlight the vision of the NIA:
,1. The NIA aims to be a thoroughly professional investigative
,agency matching the best international standards.
,2. The NIA aims to set the standards of excellence in counter-
,terrorism and other national security-related investigations at
,"the national level by developing into a highly trained,"
,partnership-oriented workforce.
,3. The NIA aims at creating deterrence for existing and
,potential terrorist groups/ individuals.
,4. The NIA aims to develop as a storehouse of all terrorist-
,related information.
, MISSION OF THE NIA
,
,The mission of the NIA is as follows:
,1. In-depth professional investigation of scheduled offences
,using the latest scientific methods of investigation and
,setting up such standards as to ensure that all cases
,entrusted to the NIA are detected.
,2. Ensuring effective and speedy trial.
,"3. Developing into a thoroughly professional, result-oriented"
,"organisation, upholding the Constitution of India and laws of"
,"the land, giving prime importance to the protection of human"
,rights and dignity of the individual.
,4. Developing a professional workforce through regular training
,and exposure to the best practices and procedures.
,5. Displaying scientific temper and progressive spirit while
,discharging the duties assigned.
,6. Inducting modern methods and latest technology in every
,sphere of activities of the agency.
,7. Maintaining professional and cordial relations with the
,governments of states and union territories and other law
,enforcement agencies in compliance with the legal
,provisions of the NIA Act.
,8. Assisting all states and other investigating agencies in
,investigation of terrorist cases.
,9. Building a database on all terrorist-related information and
,sharing the available database with the states and other
,agencies.
,10. Studying and analysing laws relating to terrorism in other
,countries and regularly evaluating the adequacy of existing
,laws in India and proposing changes as and when
,necessary.
,11. Winning the confidence of the citizens of India through
,selfless and fearless endeavours.
, JURISDICTION OF THE NIA
,
,The NIA has concurrent jurisdiction to investigate and prosecute
,"the offences affecting the sovereignty, security and integrity of"
,"India, security of state, friendly relations with foreign states and"
,offences under various Acts enacted to implement international
,"treaties, agreements, conventions and resolutions of the UNO, its"
,agencies and other international organisations.
,The NIA is empowered to probe terror attacks including bomb
,"blasts, hijacking of aircrafts and ships, attacks on nuclear"
,installations and use of weapons of mass destruction.
,"In 2019, the jurisdiction of the NIA was extended4."
,"Consequently, the NIA is also empowered to probe the offences"
,"relating to human trafficking, counterfeit currency or bank notes,"
,"manufacture or sale of prohibited arms, cyber-terrorism and"
,explosive substances.
," NIA (AMENDMENT) ACT, 2019"
,
,The various features or provisions of the amendment are as
,follows5 :
,1. It applied the provisions of the NIA Act also to persons who
,commit a scheduled offence beyond India against Indian
,citizens or affecting the interest of India.
,2. It provided that the officers of the NIA shall have the similar
,"powers, duties, privies and liabilities being exercised by the"
,police officers in connection with the investigation of
,"offences, not only in India but also outside India."
,"3. It empowered the central government, with respect to a"
,"scheduled offence committed outside India, to direct the NIA"
,to register the case and take up investigation as if such
,offence has taken place in India.
,4. It provided that the central government and the state
,governments may designate Sessions Courts as Special
,Courts for conducting the trial of offences under the NIA Act.
,5. It inserted certain new offences in the Schedule of the NIA
,Act6 .
,
,
,NOTES AND REFERENCES
,1. Based on the statement of objects and reasons
,"appended to the NIA Bill, 2008."
,2. The second Administrative Reforms Commission
,"(Chairman: Veerappa Moily), 2005–09, in its report"
,entitled ‘Combating Terrorism’ (2008).
,3. The National Investigation Agency (Manner of
,"Constitution) Rules, 2008."
,"4. Vide the NIA (Amendment) Act, 2019."
,5. Based on the Statement of Objects and Reasons
,"appended to the NIA (Amendment) Bill, 2019."
,6. See the last paragraph under the above heading
,(Jurisdiction of the NIA).
, 63 National Disaster Management
,Authority
,
,
,ESTABLISHMENT OF THE NDMA
,"The Government of India, recognising the importance of disaster"
,"management as a national priority, had set up a High Powered"
,Committee in 1999 and a National Committee in 2001 after the
,"Gujarat earthquake, to make recommendations on the preparation"
,of disaster management plans and suggest effective mitigation
,"mechanisms. However, after the Indian Ocean tsunami of 2004,"
,the Government of India took a defining step in the legislative
,"history of the country by enacting the Disaster Management Act,"
,20051 .
,The Act provided for the creation of the National Disaster
,Management Authority (NDMA) to spearhead and implement a
,holistic and integrated approach to disaster management in the
,"country. Initially, the NDMA was constituted in 2005 by an"
,"Executive Order of the Government of India. Subsequently, the"
,NDMA was notified in 2006 under the provisions of the Act2 .
,"The NDMA consists of a chairperson and other members, not"
,exceeding nine. The Prime Minister is the ex-officio chairperson of
,the NDMA. The other members are nominated by the chairperson
,of the NDMA. The chairperson of the NDMA designates one of the
,members as the vice-chairperson of the NDMA. The vice-
,chairperson has the status of a Cabinet Minister while the other
,members have the status of a Minister of State.
,The NDMA is the apex body for disaster management in the
,country. It works under the administrative control of the Union
,Ministry of Home Affairs.
,The NDMA was established with this vision: ‘To build a safer
,"and disaster resilient India by a holistic, pro-active, technology"
,driven and sustainable development strategy that involves all
,"stakeholders and fosters a culture of prevention, preparedness"
,and mitigation’.
, OBJECTIVES OF THE NDMA
,The objectives of the NDMA are as follows:
,"1. To promote a culture of prevention, preparedness and"
,"resilience at all levels through knowledge, innovation and"
,education.
,"2. To encourage mitigation measures based on technology,"
,traditional wisdom and environmental sustainability.
,3. To mainstream disaster management into the developmental
,planning process.
,4. To establish institutional and techno-legal frameworks to
,create an enabling regulatory environment and a compliance
,regime.
,"5. To ensure efficient mechanism for identification, assessment"
,and monitoring of disaster risks.
,6. To develop contemporary forecasting and early warning
,systems backed by responsive and failsafe communication
,with information technology support.
,7. To ensure efficient response and relief with a caring
,approach towards the needs of the vulnerable sections of
,the society.
,8. To undertake reconstruction as an opportunity to build
,disaster resilient structures and habitat for ensuring safer
,living.
,9. To promote a productive and proactive partnership with the
,media for disaster management.
, FUNCTIONS OF THE NDMA
,
,"The NDMA has the responsibility for laying down the policies,"
,plans and guidelines for disaster management for ensuring timely
,and effective response to disaster.
,The functions of the NDMA are as follows:
,1. To lay down policies on disaster management.
,2. To approve the National Plan.
,3. To approve plans prepared by the Ministries or Departments
,of the Government of India in accordance with the National
,Plan.
,4. To lay down guidelines to be followed by the State Disaster
,Management Authorities (SDMAs)3 in drawing up the State
,Plan.
,5. To lay down guidelines to be followed by the different
,Ministries or Departments of the Government of India for the
,purpose of integrating the measures for prevention of
,disaster or the mitigation of its effects in their development
,plans and projects.
,6. To coordinate the enforcement and implementation of the
,policy and plan for disaster management.
,7. To recommend provision of funds for the purpose of
,mitigation.
,8. To provide such support to other countries affected by major
,disasters as may be determined by the central government.
,"9. To take other such measures for the prevention of disaster,"
,"or the mitigation, or preparedness and capacity building for"
,dealing with the threatening disaster situation or disaster as
,it may consider necessary.
,10. To lay down broad policies and guidelines for the functioning
,of the National Institute of Disaster Management4 .
, ADDITIONAL FUNCTIONS OF THE NDMA
,
,"In addition to the above, the NDMA also performs the following"
,functions:
,1. It recommends guidelines for the minimum standards of
,relief to be provided to persons affected by disaster.
,"2. It recommends, in cases of disasters of severe magnitude,"
,relief in repayment of loans or grant of fresh loans on
,concessional terms to the persons affected by such
,disasters.
,"3. It exercises the general superintendence, direction and"
,control of the National Disaster Response Force (NDRF).
,This force has been constituted for the purpose of specialist
,response to a threatening disaster situation or disaster.
,4. It authorises the concerned department or authority to make
,the emergency procurement of provisions or materials for
,rescue or relief in any threatening disaster situation or
,"disaster. In such case, the standard procedure requiring"
,inviting of tenders is deemed to be waived.
,5. It prepares an annual report on its activities and submits it to
,the central government. The central government causes it to
,be laid before both Houses of Parliament5 .
, STATE DISASTER MANAGEMENT AUTHORITY
,
,Composition
,Every state government should establish a State Disaster
,Management Authority (SDMA) for the state. An SDMA consists
,"of a chairperson and other members, not exceeding nine. The"
,Chief Minister of the state is the ex-officio chairperson of the
,SDMA. The chairperson of the State Executive Committee is the
,"ex-officio member of the SDMA. The other members, not"
,"exceeding eight, are nominated by the chairperson of the SDMA."
,The chairperson of the SDMA designates one of the members as
,the vice-chairperson of the SDMA. The chairperson of the State
,Executive Committee acts as the ex-officio chief executive officer
,of the SDMA.
,
,Functions
,An SDMA has the responsibility for laying down policies and plans
,for disaster management in the state. Its functions include the
,following:
,1. To lay down the state disaster management policy.
,2. To approve the State Plan in accordance with the guidelines
,laid down by the NDMA.
,3. To approve the disaster management plans prepared by the
,departments of the government of the state.
,4. To lay down guidelines to be followed by the departments of
,the government of the state for the purposes of integration of
,measures for prevention of disasters and mitigation in their
,development plans and projects and provide necessary
,technical assistance thereof.
,5. To coordinate the implementation of the State Plan.
,6. To recommend provision of funds for mitigation and
,preparedness measures.
,7. To review the development plans of the different
,departments of the state and ensure that prevention and
,mitigation measures are integrated therein.
,"8. To review the measures being taken for mitigation, capacity"
,building and preparedness by the departments of the
,government of the state and issue such guidelines as may
,be necessary.
, DISTRICT DISASTER MANAGEMENT AUTHORITY
,
,Composition
,Every state government should establish a District Disaster
,Management Authority (DDMA) for every district in the state. A
,"DDMA consists of a chairperson and other members, not"
,exceeding seven. The Collector (or District Magistrate or Deputy
,Commissioner) of the district is the ex-officio chairperson of the
,DDMA. The elected representative of the local authority is the ex-
,"officio co-chairperson of the DDMA. But, in case of Tribal Areas"
,"(as referred to in the Sixth Schedule to the Constitution of India),"
,the chief executive member of the district council of autonomous
,district is the ex-officio co-chairperson of the DDMA. The chief
,"executive officer of the DDMA, the superintendent of police and"
,the chief medical officer of the district are the ex-officio members
,of the DDMA. Not more than two other district level officers are
,appointed by the state government as the members of the DDMA.
,"In case of a district where Zilla Parishad exists, the chairperson of"
,that Zilla Parishad is the co-chairperson of the DDMA. The chief
,executive officer of the DDMA is appointed by the state
,government.
,
,Functions
,"The DDMA acts as the district planning, coordinating and"
,implementing body for disaster management and takes all
,measures for the purposes of disaster management in the district
,in accordance with the guidelines laid down by the NDMA and the
,SDMA. Its functions are as follows:
,1. To prepare a disaster management plan including district
,response plan for the district.
,2. To coordinate and monitor the implementation of the
,"National Policy, State Policy, National Plan, State Plan and"
,District Plan.
,3. To ensure that the areas in the district vulnerable to
,disasters are identified and measures for the prevention of
,      disasters and the mitigation of its effects are undertaken by
,the departments of the government at the district level as
,well as by the local authorities.
,"4.   To ensure that the guidelines for prevention of disasters,"
,"mitigation of its effects, preparedness and response"
,measures as laid down by the NDMA and the SDMA are
,followed by all departments of the government at the district
,level and the local authorities in the district.
,5.   To organise and coordinate specialised training programmes
,"for different levels of officers, employees and voluntary"
,rescue workers in the district.
,6.   To facilitate community training and awareness programmes
,for prevention of disaster or mitigation with the support of
,"local authorities, governmental and non-governmental"
,organisations.
,"7.   To set up, maintain, review and upgrade the mechanism for"
,early warnings and dissemination of proper information to
,the public.
,"8.   To advise, assist and coordinate the activities of the"
,"departments of the government at the district level, statutory"
,bodies and other governmental and nongovernmental
,organisations in the district engaged in disaster
,management.
,"9.   To identify buildings and places which could, in the event of"
,"any threatening disaster situation or disaster, be used as"
,relief centres or camps and make arrangements for water
,supply and sanitation in such buildings or places.
,10.    To perform such other functions as the state government or
,SDMA may assign to it or as it deems necessary for disaster
,management in the District.
,
,
,NOTES AND REFERENCES
,"1. Annual Report 2016–17, National Disaster Management"
,"Authority, Government of India, p. 2."
,2. Ibid.
,3. The Act also provided for the establishment of the State
,Disaster Management Authorities and the District
,   Disaster Management Authorities.
,4. The National Institute of Disaster Management is
,located at New Delhi.
,5. The Disaster Management (Annual Report of National
,"Authority) Rules, 2006."
,               PART-IX
,OTHER CONSTITUTIONAL DIMENSIONS
,
,64. Co-operative Societies
,65. Official Language
,66. Public Services
,67. Rights and Liabilities of the Government
,68. Special Provisions Relating to Certain Classes
, 64      Co-operative Societies
,
,
,
,
,T      he 97th Constitutional Amendment Act of 2011 gave a
,constitutional status and protection to co-operative
,"societies. In this context, it made the following three"
,changes in the constitution:
,1. It made the right to form co-operative societies a
,fundamental right (Article 191 ).
,2. It included a new Directive Principle of State Policy on
,promotion of co-operative societies (Article 43-B2 ).
,3. It added a new Part IX-B in the Constitution which is entitled
,“The Co-operative Societies” (Articles 243-ZH to 243-ZT).
, CONSTITUTIONAL PROVISIONS
,
,Part IX-B of the constitution contains the following provisions with
,respect to the cooperative societies:
,Incorporation of Co-operative Societies: The state legislature
,"may make provisions for the incorporation, regulation and"
,winding-up of co-operative societies based on the principles of
,"voluntary formation, democratic membercontrol, member-"
,economic participation and autonomous functioning.
,Number and Term of Members of Board and its Office
,Bearers: The board shall consist of such number of directors as
,"may be provided by the state legislature.3 But, the maximum"
,number of directors of a co-operative society shall not exceed
,twenty-one.
,The state legislature shall provide for the reservation of one
,seat for the Scheduled Castes or the Scheduled Tribes and two
,seats for women on the board of every co-operative society
,having members from such a category of persons.
,The term of office of elected members of the board and its
,office bearers shall be five years from the date of election.4
,The state legislature shall make provisions for co-option of
,"persons having experience in the field of banking, management,"
,"finance or specialisation in any other related field, as members of"
,"the board. But, the number of such co-opted members shall not"
,"exceed two (in addition to twenty-one directors). Further, the co-"
,opted members shall not have the right to vote in any election of
,the co-operative society or be eligible to be elected as office
,bearers of the board.
,The functional directors of a co-operative society shall also be
,the members of the board and such members shall be excluded
,"for the purpose of counting the total number of directors (that is,"
,twenty-one).
,Election of Members of Board: The election of a board shall be
,conducted before the expiry of the term of the board so as to
,ensure that the newly elected members assume office
,immediately on the expiry of the term of the office of members of
,the outgoing board.
,"The superintendence, direction and control of the preparation of"
,electoral rolls and the conduct of elections to a co-operative
,"society shall vest in such body, as may be provided by the state"
,legislature.
,Supersession and Suspension of Board and Interim
,Management: No board shall be superseded or kept under
,suspension for a period exceeding six months.5 The board may be
,superseded or kept under suspension in case
,(i) Of its persistent default
,(ii) Of negligence in the performance of its duties
,(iii) Of committing any act prejudicial to the interests of the co-
,operative society or its members
,(iv) Of there being a stalement in the constitution or functions of
,the board
,(v) Of the election body having failed to conduct elections in
,accordance with the provisions of the State Act.
,"However, the board of any such co-operative society shall not"
,be superseded or kept under suspension where there is no
,Government shareholding or loan or financial assistance or any
,guarantee by the Government.
,"In case of supersession of a board, the administrator appointed"
,to manage the affairs of such a co-operative society shall arrange
,for conduct of elections within the period of six months and hand-
,over the management to the elected board.
,Audit of Accounts of Co-operative Societies: The state
,legislature may make provisions for the maintenance of accounts
,by the co-operative societies and the auditing of such accounts at
,least once in each financial year. It shall lay down the minimum
,qualifications and experience of auditors and auditing firms that
,shall be eligible for auditing the accounts of the co-operative
,societies.
,Every co-operative society shall be audited by an auditor or
,"auditing firm, appointed by the general body of the co-operative"
,"society. But, such an auditor or auditing firm shall be appointed"
,from a panel approved by the State Government or a body
,authorised by the State Government on this behalf.
,The accounts of every co-operative society shall be audited
,within six months of the close of the financial year.
,The audit report of the accounts of an apex co-operative
,society shall be laid before the state legislature.
,Convening of General Body Meetings: The state legislature
,may provide that the annual general body meeting of every co-
,operative society shall be convened within a period of six months
,of the close of the financial year. Right of a Member to Get
,Information: The state legislature may provide for access to every
,"member of a co-operative society to the books, information and"
,accounts of the co-operative society. It may also make provisions
,to ensure the participation of members in the management of the
,"co-operative society. Further, it may provide for co-operative"
,education and training for its members.
,"Returns: Every co-operative society shall file returns, within six"
,"months of the close of every financial year, to the authority"
,designated by the State Government. These returns shall include
,the following matters:
,(a) Annual report of its activities
,(b) Its audited statement of accounts
,(c) Plan for surplus disposal as approved by the general body of
,the co-operative society
,(d) List of amendments to the by-laws of the co-operative
,society
,(e) Declaration regarding date of holding of its general body
,meeting and conduct of elections when due
,(f) Any other information required by the Registrar in pursuance
,of any of the provisions of the State Act.6
,Offences and Penalties: The state legislature may make
,provisions for the offences relating to the co-operative societies
,and penalties for such offences. Such a law shall include the
,commission or omission of the following acts as offences:
,(a) A co-operative society wilfully makes a false return or
,furnishes false information
," (b) Any person wilfully disobeys any summon, requisition or"
,order issued under the State Act
,"(c) Any employer who, without sufficient cause, fails to pay to a"
,co-operative society the amount deducted from its employee
,within a period of fourteen days
,"(d) Any officer who wilfully fails to handover custody of books,"
,"accounts, documents, records, cash, security and other"
,property belonging to a co-operative society to an authorised
,person
,"(e) Any person who adopts corrupt practices before, during or"
,after the election of members of the board or office bearers.
,Application to Multi-state Co-operative Societies: The
,provisions of this part shall apply to the multi-state co-operative
,societies subject to the modification that any reference to the
,"“State Legislature”, “State Act” or “State Government” shall be"
,"construed as a reference to “Parliament”, “Central Act” or “Central"
,Government” respectively.
,Application to Union Territories: The provisions of this part shall
,"apply to the Union territories. But, the President may direct that"
,the provisions of this part shall not apply to any Union territory or
,part thereof as he may specify in the notification.
,Continuance of Existing Laws: Any provision of any law relating
,to co-operative societies in force in a state immediately before the
,commencement of the Constitution (Ninetyseventh Amendment)
,"Act, 2011, which is inconsistent with the provisions of this part,"
,shall continue to be in force until amended or repealed or until the
,"expiration of one year from such commencement, whichever is"
,less.7
, REASONS FOR THE 97TH AMENDMENT
,
,The reasons for adding the above provisions in the Constitution by
,the 97th Constitutional Amendment Act of 2011 are as follows:
,"1. The co-operative sector, over the years, has made"
,significant contribution to various sectors of national
,"economy and has achieved voluminous growth. However, it"
,has shown weaknesses in safeguarding the interests of the
,members and fulfilment of objects for which these
,institutions were organised. There have been instances
,where elections have been postponed indefinitely and
,nominated office bearers or administrators have remained
,in-charge of these institutions for a long time. This reduces
,the accountability in the management of co-operative
,societies to their members. Inadequate professionalism in
,management in many of the co-operative institutions has led
,to poor services and low productivity. Co-operatives need to
,run on well established democratic principles and elections
,"held on time and in a free and fair manner. Therefore, there"
,was a need to initiate fundamental reforms to revitalise these
,institutions in order to ensure their contribution in the
,economic development of the country and to serve the
,interests of members and public at large and also to ensure
,"their autonomy, democratic functioning and professional"
,management.
,2. The “co-operative societies” is a subject enumerated in
,Entry 32 of the state list of the Seventh Schedule of the
,Constitution and the state legislatures have accordingly
,enacted legislations on co-operative societies. Within the
,"framework of State Acts, growth of co-operatives on large"
,scale was envisaged as part of the efforts for securing social
,and economic justice and equitable distribution of the fruits
,"of development. It has, however, been experienced that in"
,"spite of considerable expansion of co-operatives, their"
,performance in qualitative terms has not been up to the
,desired level. Considering the need for reforms in the Co-
,"operative Societies Acts of the States, consultations with the"
,     State Governments have been held at several occasions
,and in the conferences of state co-operative ministers. A
,strong need has been felt for amending the Constitution so
,as to keep the co-operatives free from unnecessary outside
,interferences and also to ensure their autonomous
,organisational set up and their democratic functioning.
,3. The Central Government was committed to ensure that the
,co-operative societies in the country function in a
,"democratic, professional, autonomous and economically"
,"sound manner. With a view to bring the necessary reforms, it"
,was proposed to incorporate a new part in the Constitution
,so as to provide for certain provisions covering the vital
,"aspects of working of co-operative societies like democratic,"
,autonomous and professional functioning. It was expected
,that these provisions will not only ensure the autonomous
,"and democratic functioning of co-operatives, but also ensure"
,the accountability of management to the members and other
,stakeholders and shall provide for deterrence for violation of
,the provisions of the law.
,
,Table 64.1 Articles Related to Co-operative Societies at a Glance
,Article No. Subject-matter
,243ZH      Definitions
,243ZI     Incorporation of Co-operative Societies
,243ZJ     Number and Term of Members of Board and its
,Office Bearers
,243ZK      Election of Members of Board
,243ZL     Supersession and Suspension of Board and
,Interim Management
,243ZM      Audit of Accounts of Co-operative Societies
,243ZN      Convening of General Body Meetings
,243ZO      Right of a Member to Get Information
,243ZP      Returns
,243ZQ      Offences and Penalties
, 243ZR      Application to Multi-state Co-operative Societies
,243ZS      Application to Union Territories
,243ZT      Continuance of Existing Laws
,
,
,NOTES AND REFERENCES
,"1. In Part III of the Constitution, in Article 19, in clause (1),"
,"in sub-clause (c), the words “co-operative societies”"
,were inserted.
,"2. In Part IV of the Constitution, a new Article 43-B was"
,"inserted, which says: “The state shall endeavour to"
,"promote voluntary formation, autonomous functioning,"
,democratic control and professional management of
,cooperative societies”.
,3. The “board” means the board of directors or the
,"governing body of a cooperative society, by whatever"
,"name called, to which the direction and control of the"
,management of the affairs of a society is entrusted to.
,"4. An “office bearer” means a president, vice-president,"
,"chairperson, vicechairperson, secretary or treasurer of a"
,co-operative society and includes any other person to
,be elected by the board of any co-operative society.
,"5. In case of cooperative banks, other than multi-state"
,"cooperative banks, this period cannot exceed one year."
,6. The “Registrar” means the Central Registrar appointed
,by the Central Government in relation to the multi-state
,co-operative societies and the Registrar for co-operative
,societies appointed by the state government under the
,law made by the legislature of a state in relation to co-
,operative societies.
,"7. February 15, 2012, is the date of commencement of the"
,"Constitution (Ninety-seventh Amendment) Act, 2011."
,The Centre has asked state governments to amend
,their respective State Cooperative Society Act in tune
,"with the Constitution (97th Amendment) Act, 2011 before"
,"February 14, 2013."
, 65      Official Language
,
,
,
,
,P
,art XVII of the Constitution deals with the official language
,in Articles 343 to 351. Its provisions are divided into four
,"heads–Language of the Union, Regional languages,"
,Language of the judiciary and texts of laws and Special directives.
, LANGUAGE OF THE UNION
,
,The Constitution contains the following provisions in respect of the
,official language of the Union.
,1. Hindi written in Devanagari script is to be the official
,"language of the Union. But, the form of numerals to be used"
,for the official purposes of the Union has to be the
,international form of Indian numerals and not the Devanagari
,form of numerals.
,"2. However, for a period of fifteen years from the"
,"commencement of the Constitution (i.e., from 1950 to 1965),"
,the English language would continue to be used for all the
,official purposes of the Union for which it was being used
,before 1950.
,"3. Even after fifteen years, the Parliament may provide for the"
,continued use of English language for the specified
,purposes.
,"4. At the end of five years, and again at the end of ten years,"
,"from the commencement of the Constitution, the president"
,should appoint a commission to make recommendations
,"with regard to the progressive use of the Hindi language,"
,restrictions on the use of the English language and other
,related issues1 .
,5. A committee of Parliament is to be constituted to examine
,the recommendations of the commission and to report its
,views on them to the president2 .
,"Accordingly, in 1955, the president appointed an Official"
,Language Commission under the chairmanship of B.G. Kher. The
,commission submitted its report to the President in 1956. The
,report was examined by a committee of Parliament constituted in
,"1957 under the chairmanship of Gobind Ballabh Pant. However,"
,another Official Language Commission (as envisaged by the
,Constitution) was not appointed in 1960.
,"Subsequently, the Parliament enacted the Official Languages"
,Act in 1963. The act provides for the continued use of English
,"(even after 1965), in addition to Hindi, for all official purposes of"
,the Union and also for the transaction of business in Parliament.
,"Notably, this act enables the use of English indefinitely (without"
,"any time-limit). Further, this act was amended in 1967 to make the"
,"use of English, in addition to Hindi, compulsory in certain cases3 ."
, REGIONAL LANGUAGES
,
,The Constitution does not specify the official language of different
,"states. In this regard, it makes the following provisions:"
,1. The legislature of a state may adopt any one or more of the
,languages in use in the state or Hindi as the official
,"language of that state. Until that is done, English is to"
,continue as official language of that state.
,"Under this provision, most of the states have adopted the"
,major regional language as their official language. For
,"example, Andhra Pradesh has adopted Telugu, Kerala–"
,"Malayalam, Assam–Assamese, West Bengal–Bengali,"
,Odisha–Odia. The nine northern states of Himachal
,"Pradesh, Uttar Pradesh, Uttarakhand, Madhya Pradesh,"
,"Chhattisgarh, Bihar, Jharkhand, Haryana and Rajasthan"
,have adopted Hindi. Gujarat has adopted Hindi in addition to
,"Gujarati. Similarly, Goa has adopted Marathi in addition to"
,Konkani. Jammu and Kashmir has adopted Urdu (and not
,"Kashmiri). On the other hand, certain north-eastern States"
,"like Meghalaya, Arunachal Pradesh and Nagaland have"
,"adopted English. Notably, the choice of the state is not"
,limited to the languages enumerated in the Eighth Schedule
,of the Constitution.
,"2. For the time being, the official language of the Union (i.e.,"
,English) would remain the link language for communications
,between the Union and the states or between various states.
,"But, two or more states are free to agree to use Hindi"
,(instead of English) for communication between themselves.
,"Rajasthan, Uttar Pradesh, Madhya Pradesh and Bihar are"
,some of the states that have entered into such agreements.
,The Official Languages Act (1963) lays down that English
,should be used for purposes of communication between the
,"Union and the non-Hindi states (that is, the states that have"
,"not adopted Hindi as their official language). Further, where"
,Hindi is used for communication between a Hindi and a non-
,"Hindi state, such communication in Hindi should be"
,accompanied by an English translation.
,3. When the President (on a demand being made) is satisfied
,that a substantial proportion of the population of a state
,desire the use of any language spoken by them to be
,"recognised by that state, then he may direct that such"
,language shall also be officially recognised in that state. This
,provision aims at protecting the linguistic interests of
,minorities in the states.
, LANGUAGE OF THE JUDICIARY AND TEXTS OF
,LAWS
,The constitutional provisions dealing with the language of the
,courts and legislation are as follows:
,"1. Until Parliament provides otherwise, the following are to be"
,in the English language only:
,(a) All proceedings in the Supreme Court and in every high
,court.
,"(b) The authoritative texts of all bills, acts, ordinances,"
,"orders, rules, regulations and bye-laws at the Central"
,and state levels4 .
,"2. However, the governor of a state, with the previous consent"
,"of the president, can authorise the use of Hindi or any other"
,"official language of the state, in the proceedings in the high"
,"court of the state, but not with respect to the judgements,"
,"decrees and orders passed by it. In other words, the"
,"judgements, decrees and orders of the high court must"
,continue to be in English only (until Parliament otherwise
,provides).
,"3. Similarly, a state legislature can prescribe the use of any"
,"language (other than English) with respect to bills, acts,"
,"ordinances, orders, rules, regulations or bye-laws, but a"
,translation of the same in the English language is to be
,published. The Official Languages Act of 1963 lays down
,"that Hindi translation of acts, ordinances, orders, regulations"
,and bye-laws published under the authority of the president
,"are deemed to be authoritative texts. Further, every bill"
,introduced in the Parliament is to be accompanied by a Hindi
,"translation. Similarly, there is to be a Hindi translation of"
,state acts or ordinances in certain cases.
,"The act also enables the governor of a state, with the previous"
,"consent of the president, to authorise the use of Hindi or any other"
,"official language of the state for judgements, decrees and orders"
,passed by the high court of the state but they should be
,"accompanied by an English translation. For example, Hindi is"
,"used in Uttar Pradesh, Madhya Pradesh, Bihar and Rajasthan for"
,this purpose.
,"However, the Parliament has not made any provision for the"
,"use of Hindi in the Supreme Court. Hence, the Supreme Court"
,"hears only those who petition or appeal in English. In 1971, a"
,petitioner insisted on arguing in Hindi a habeas corpus petition in
,"the Supreme Court. But, the Court cancelled his petition on the"
,ground that the language of the Court was English and allowing
,Hindi would be unconstitutional.
,The Authorised Translations (Central Laws) Act of 1973 lays
,down that a Translation in any regional language specified in the
,Eight Schedule to the Constitution (other than Hindi) of any central
,"act, ordinance, order, rule, regulation and bye-law published under"
,the authority of the President in the Official Gazette is deemed to
,be the authoritative texts thereof in such language.
, SPECIAL DIRECTIVES
,
,The Constitution contains certain special directives to protect the
,interests of linguistic minorities and to promote the development of
,Hindi language. There are:
,
,Protection of Linguistic Minorities
,"In this regard, the Constitution makes the following provisions:"
,1. Every aggrieved person has the right to submit a
,representation for the redress of any grievance to any officer
,or authority of the Union or a state in any of the languages
,"used in the Union or in the state, as the case may be. This"
,means that a representation cannot be rejected on the
,ground that it is not in the official language.
,2. Every state and a local authority in the state should provide
,adequate facilities for instruction in the mother-tongue at the
,primary stage of education to children belonging to linguistic
,minority groups. The president can issue necessary
,directions for this purpose5 .
,3. The president should appoint a special officer for linguistic
,minorities to investigate all matters relating to the
,constitutional safeguards for linguistic minorities and to
,report to him. The president should place all such reports
,before the Parliament and send to the state government
,concerned6 .
,
,Development of Hindi Language
,The Constitution imposes a duty upon the Centre to promote the
,spread and development of the Hindi language so that it may
,become the lingua franca of the composite culture of India7 .
,"Further, the Centre is directed to secure the enrichment of Hindi"
,"by assimilating the forms, style and expressions used in"
,hindustani and in other languages specified in the Eighth
,"Schedule and by drawing its vocabulary, primarily on sanskrit and"
,secondarily on other languages.
,"   At present (2019), the Eighth Schedule of the Constitution"
,specifies 22 languages (originally 14 languages). These are
,"Assamese, Bengali, Bodo, Dogri (Dongri), Gujarati, Hindi,"
,"Kannada, Kashmiri, Konkani, Mathili (Maithili), Malayalam,"
,"Manipuri, Marathi, Nepali, Odia8 , Punjabi, Sanskrit, Santhali,"
,"Sindhi, Tamil, Telugu and Urdu. Sindhi was added by the 21st"
,"Amendment Act of 1967; Konkani, Manipuri and Nepali were"
,"added by the 71st Amendment Act of 1992; and Bodo, Dongri,"
,Maithili and Santhali were added by the 92nd Amendment Act of
,2003
,"In terms of the Constitution provisions, there are two objectives"
,behind the specification of the above regional languages in the
,Eighth Schedule:
,(a) the members of these languages are to be given
,representation in the Official Language Commission; and
,"(b) the forms, style and expression of these languages are to be"
,used for the enrichment of the Hindi language.
, COMMITTEE OF PARLIAMENT ON OFFICIAL
,LANGUAGE9
,
,The Official Languages Act (1963) provided for the setting up of a
,Committee of Parliament on Official Language to review the
,progress made in the use of Hindi for the official purpose of the
,"Union. Under the Act, this Committee was to be constituted after"
,"ten years of the promulgation of the Act (i.e., 26th January, 1965)."
,"Accordingly, this Committee was set up in 1976. This Committee"
,"comprises of 30 members of Parliament, 20 from Lok Sabha and"
,10 from Rajya Sabha.
,The Act contains the following provisions relating to the
,composition and functions of the committee:
,1. After the expiration of ten years from the date on which the
,"Act comes into force, there shall be constituted a Committee"
,"on Official Language, on a resolution to that effect being"
,moved in either House of Parliament with the previous
,sanction of the President and passed by both Houses.
,"2. The Committee shall consist of thirty members, of whom"
,twenty shall be members of the House of the People and ten
,shall be members of the Council of States to be elected
,respectively by the members of the House of the People and
,the members of the Council of States in accordance with the
,system of proportional representation by means of the single
,transferable vote.
,3. It shall be the duty of the Committee to review the progress
,made in the use of Hindi for the official purposes of the
,Union and submit a report to the President making
,recommendations thereon and the President shall cause the
,report to be laid before each House of Parliament and sent it
,to all the State Governments.
,"4. The President may, after consideration of the report, and the"
,"views, expressed by the State Governments thereon, issue"
,directions in accordance with the whole or any part of the
,report.
,The Chairman of the Committee is elected by the members of
,"the Committee. As a convention, the Union Home Minister has"
,been elected as Chairman of the Committee from time to time.
,The Committee is required to submit its report alongwith its
,recommendations to the President after reviewing the position
,regarding the use of Hindi in Central Government Offices on the
,basis of its observations. Apart from adopting other methods for
,"assessing the factual position, the Committee decided to inspect"
,certain Central Government offices representing various fields of
,activities to motivate the Central Government offices to adopt
,maximum usage of Hindi so that the objectives of the Constitution
,and Official Languages Act provisions could be achieved. With
,"this end in view, the Committee set up three sub-Committees and"
,"for the purpose of inspection by the three sub-Committees, the"
,various Ministries/Departments etc. were divided into three
,different groups.
,"Further, in order to assess the use of Official Language for"
,"various purposes and other matters connected therewith, it was"
,also decided to invite eminent persons from various fields such as
,"from education, judiciary, voluntary organizations and the"
,"Secretaries of the Ministries/Departments etc., for oral evidence."
,The progressive use of Hindi in the Central Government offices
,is being reviewed by the Committee in the background of the
,provisions relating to Official Language as provided by the
,"Constitution; the Official Languages Act, 1963 and the Rules"
,framed thereunder. The Committee also takes note of the
,circulars/ instructions etc. issued by the Government in this regard
,from time to time. The terms of reference of the Committee being
,"comprehensive, it has also been examining other relevant aspects"
,"like the medium of instructions in schools, colleges and the"
,universities; mode of recruitment to Central Government services
,and medium of departmental examination etc. Taking into
,consideration the magnitude of various aspects of the Official
,"Language policy and keeping in view the present circumstances,"
,"the Committee in its meeting held in June, 1985 and August, 1986"
,decided to present its report to the President in parts; each part
,relating to a particular aspect of the Official Language policy.
,The Secretariat of the Committee is headed by the Secretary of
,the Committee. The Secretary is assisted by the officers of the
,level of Under Secretary and other officials. They extend all
,required assistance in performing the various activities of the
,"Committee. For administrative purposes, this office is subordinate"
,"office of Department of Official Language, Ministry of Home"
,Affairs.
, CLASSICAL LANGUAGE STATUS
,
,"In 2004, the Government of India decided to create new category"
,"of languages called as “classical languages”. In 2006, it laid down"
,the criteria for conferring the classical language status.
,"So far (2019), the six languages are granted the classical"
,language status. This is shown below in Table 65.1.
,
,Benefits
,"Once a language is declared classical, it gets financial assistance"
,for setting up a centre of excellence for the study of that language
,and also opens up an avenue for two major awards for scholars of
,"eminence. Besides, the University Grants Commission can be"
,requested to create - to begin with at least in Central Universities -
,a certain number of professional chairs for classical languages for
,scholars of eminence in the language.10
,
,Table 65.1 Languages conferred with Classical Language Status
,Sl. No.     Languages                  Year of Declaration
,1.       Tamil                      2004
,2.       Sanskrit                   2005
,3.       Telugu                     2008
,4.       Kannada                    2008
,5.       Malayalam                  2013
,6.       Odia                       2014
,
,Table 65.2 Articles Related to Official Language at a Glance
,Article No.                      Subject-matter
,Language of the Union
,343.       Official language of the Union
,344.       Commission and Committee of Parliament on
,official language
,                      Regional Languages
,345.      Official language or languages of a state
,346.      Official language for communication between one
,state and another or between a state and the
,Union
,347.      Special provision relating to language spoken by a
,section of the population of a state
,"Language of the Supreme Court, High Courts, etc."
,348.      Language to be used in the Supreme Court and in
,"the High Courts and for Acts, Bills, etc."
,349.      Special procedure for enactment of certain laws
,relating to language
,Special Directives
,350.      Language to be used in representation for redress
,of grievances
,350A.      Facilities for instruction in mother-tongue at
,primary stage
,350B.      Special Officer for linguistic minorities
,351.      Directive for development of the Hindi language
,
,Criteria
,The criteria for declaring a language as classical mandates high
,"antiquity of its early texts/recorded history over a period of 1,500–"
,"2,000 years, a body of ancient lit-erature/texts which is considered"
,a valuable heritage by generations of speakers and a literary
,tradition that is original and not borrowed from another speech
,community. Also since the classical language and literature is
,"distinct from the modern, there can also be a discontinuity"
,between the classical language and its later forms or its
,offshoots.11
,
,
,NOTES AND REFERENCES
, 1. The Commission was to consist of a chairman and
,other members representing the different languages
,specified in the Eighth Schedule of the Constitution.
,2. The Committee was to consist of 30 members (20 from
,"Lok Sabha and 10 from Rajya Sabha), to be elected in"
,accordance with the system of proportional
,representation by means of the single transferable vote.
,"3. These include: (a) resolutions, general orders, rules,"
,"notifications, administrative or other reports or press"
,communications issued by the Central government; (b)
,administrative and other reports and official papers laid
,before Parliament; and (c) contracts and agreements
,"executed, licences, permits, notices, etc, issued by the"
,Central government or by a corporation or a company
,owned by the Central government.
,"4. For language in Parliament and a state legislature, see"
,"the respective Chapters (i.e., 22 and 33)."
,5. This provision was added by the 7th Amendment Act of
,1956 on the recommendation of the States
,Reorganisation Commission.
,6. Ibid.
,"7. In 1976, the Supreme Court declared Tamil Nadu’s"
,pension      scheme     to   anti-Hindi    agitators  as
,unconstitutional.
,8. The 96th Amendment Act of 2011 substituted “Odia” for
,“Oriya”.
,9. This information is down loaded from the website of the
,"Committee of Parliament on Official Language, Ministry"
,"of Home Affairs, Government of India."
,"10. The Hindu, “Odia gets classical language status”,"
,"February 20, 2014."
,11. Ibid.
, 66      Public Services
,
,
,CLASSIFICATION OF SERVICES
,The public services (civil services or government services) in India
,"are classified into three categories–all-India services, Central"
,services and state services. Their meaning and composition are
,explained below:
,
,All-India Services
,All-India services are those services which are common to both
,Central and state governments. The members of these services
,occupy top positions (or key posts) under both the Centre and the
,states and serve them by turns.
,"At present, there are three all-India services. They are:"
,1. Indian Administrative Service (IAS)
,2. Indian Police Service (IPS)
,3. Indian Forest Service (IFS)
,"In 1947, the Indian Civil Service (ICS) was replaced by IAS,"
,and the Indian Police (IP) was replaced by IPS and were
,"recognised by the Constitution as all-India services. In 1966, the"
,Indian Forest Service was established as the third all-India
,service1 .
,The All-India Services Act of 1951 authorised the Central
,government to make rules in consultation with the state
,governments for the regulation of recruitment and service
,conditions of the members of all-India services. The members of
,these services are recruited and trained by the Central
,government but are assigned to different states for work. They
,belong to different state cadres; the Centre having no cadre of its
,own in this regard. They serve the Central government on
,deputation and after completing their fixed tenure they go back to
,their respective states. The Central government obtains the
,services of these officers on deputation under the well-known
,tenure system. It must be noted here that irrespective of their
,"division among different states, each of these all-India services"
,form a single service with common rights and status and uniform
,scales of pay throughout the country. Their salaries and pensions
,are met by the states.
,The all-India services are controlled jointly by the Central and
,state governments. The ultimate control lies with the Central
,government while the immediate control is vested in the state
,governments. Any disciplinary action (imposition of penalties)
,against these officers can only be taken by the Central
,government.
,Sardar Vallabhbhai Patel was the chief protagonist of all-India
,"services in the Constituent Assembly. Hence, he came to be"
,regarded as the ‘Father of all-India Services’.
,
,Central Services
,The personnel of Central services work under the exclusive
,jurisdiction of the Central government. They hold specialised
,(functional and technical) positions in various departments of the
,Central government.
,"Before Independence, the Central services were classified into"
,"class-I, class-II, subordinate and inferior services. After"
,"Independence, the nomenclature of subordinate and inferior"
,services was replaced by class-III and class-IV services. Again in
,"1974, the classification of Central services into class-I, class-II,"
,"class-III and class-IV was changed to group A, group B, group C"
,"and group D, respectively2 ."
,"At present, there are 62 group A Central services. Some of"
,them are:
,1. Central Engineering Service.
,2. Central Health Service.
,3. Central Information Service.
,4. Central Legal Service.
,5. Central Secretariat Service.
,6. Indian Audit and Accounts Service.
,7. Indian Defence Accounts Service.
,8. Indian Economic Service.
,   9. Indian Foreign Service.
,10. Indian Meteorological Service.
,11. Indian Postal Service.
,"12. Indian Revenue Service (Customs, Excise and Income Tax)"
,13. Indian Statistical Service.
,14. Overseas Communication Service.
,15. Railway Personnel Service.
,Most of the above cadres of group A Central services have also
,corresponding group B services. The group C Central services
,consists of clerical personnel while group D consists of manual
,personnel. Thus group A and group B comprises of gazetted
,officers while group C and group D are non-gazetted.
,"Among all, the Indian Foreign Service (IFS) is the highest"
,"central service in terms of prestige, status, pay and emoluments."
,"In fact, it (though a central service) competes with the all-India"
,"services in position, status and pay scales. It comes next to the"
,IAS in ranking and its pay scale is higher than the IPS.
,
,State Services
,The personnel of state services work under the exclusive
,jurisdiction of the state government. They hold different positions
,"(general, functional and technical) in the departments of the state"
,"government. However, they occupy lower positions (in the"
,administrative hierarchy of the state) than those held by the
,"members of the all-India services (IAS, IPS and IFS)."
,The number of services in a state differ from state to state. The
,services that are common to all the states are:
,1. Civil Service.
,2. Police Service.
,3. Forest Service.
,4. Agricultural Service.
,5. Medical Service.
,6. Veterinary Service.
,7. Fisheries Service.
,8. Judicial Service.
,9. Public Health Service.
,10. Educational Service.
,11. Co-operative Service.
,  12. Registration Service.
,13. Sales Tax Service.
,14. Jail Service.
,15. Service of Engineers.
,"Each of these services is named after the state, that is, name of"
,"the state is added as a prefix. For example, in Andhra Pradesh"
,"(AP), they are known as AP Civil Service, AP Police Service, AP"
,"Forest Service, AP Agricultural Service, AP Medical Service, AP"
,"Veterinary Service, AP Fisheries Service, AP Judicial Service, and"
,"so on. Among all the state services, the civil service (also known"
,as the administrative service) is the most prestigious.
,"Like the Central services, the state services are also classified"
,"into four categories: class I (group I or group A), class II (group II"
,"or group B), class III (group III or group C) and class IV (group IV"
,or group D).
,"Further, the state services are also classified into gazetted"
,"class and non-gazetted class. Usually, Class I (Group-A) and"
,Class-II (Group-B) Services are gazetted classes while Class-III
,(Group-C) and Class-IV (Group-D) services are non-gazetted
,classes. The names of the members of gazetted class are
,"published in the Government Gazette for appointment, transfer,"
,"promotion and retirement, while those of the non-gazetted are not"
,"published. Further, the members of the gazetted class enjoy some"
,privileges which are denied to the members of non-gazetted class.
,"Also, the members of the gazetted class are called ‘officers’ while"
,those of non-gazetted are called ‘employees’.
,The All-India Services Act of 1951 specifies that senior posts
,not exceeding thirty-three and one third per cent in the Indian
,"Administrative Service (IAS), Indian Police Service (IPS) and"
,Indian Forest Service (IFS) are required to be filled in by
,promotion of officers employed in the state services. Such
,promotions are made on the recommendation of selection
,committee constituted for this purpose in each state. Such a
,committee is presided over by the Chairman or a member of
,UPSC.
, CONSTITUTIONAL PROVISIONS
,
,Articles 308 to 314 in part XIV of the Constitution contain
,"provisions with regard to all-India services, Central services and"
,state services.
,
,1. Recruitment and Service Conditions
,Article 309 empowers the Parliament and the state legislatures to
,regulate the recruitment and the conditions of service of the
,persons appointed to public services and posts under the Centre
,"and the states, respectively. Until such laws are made, the"
,president or the governor can make rules to regulate these
,matters.
,Recruitment includes any method provided for inducting a
,"person in public service like appointment, selection, deputation,"
,promotion and appointment by transfer.
,"The conditions of service of a public servant includes pay,"
,"allowances, periodical increments, leave, promotion, tenure or"
,"termination of service, transfer, deputation, various types of rights,"
,"disciplinary action, holidays, hours of work and retirement benefits"
,"like pension, provident fund, gratuity and so on."
,"Under this provision, the Parliament or the state legislature can"
,impose ‘reasonable’ restrictions on the Fundamental Rights of
,"public servants in the interests of integrity, honesty, efficiency,"
,"discipline, impartiality, secrecy, neutrality, anonymity, devotion to"
,duty and so on. Such restrictions are mentioned in the conduct
,"rules like Central Services (Conduct) Rules, Railway Services"
,(Conduct) Rules and so on.
,
,2. Tenure of Office
,"According to Article 310, members of the defence services, the"
,civil services of the Centre and the all-India services or persons
,"holding military posts or civil posts3 under the Centre, hold office"
,"during the pleasure of the president. Similarly, members of the"
,civil services of a state or persons holding civil posts under a
,"state, hold office during the pleasure of the governor of the state."
,"   However, there is an exception to this general rule of dismissal"
,at pleasure. The president or the governor may (in order to secure
,the services of a person having special qualifications) provide for
,the payment of compensation to him in two cases: (i) if the post is
,"abolished before the expiration of the contractual period, or (ii) if"
,he is required to vacate that post for reasons not connected with
,"misconduct on his part. Notably, such a contract can be made only"
,"with a new entrant, that is, a person who is not already a member"
,"of a defence service, a civil service of the Centre, an all-India"
,service or a civil service of a state.
,
,3. Safeguards to Civil Servants
,Article 311 places two restrictions on the above ‘doctrine of
,"pleasure’. In other words, it provides two safeguards to civil"
,servants against any arbitrary dismissal from their posts:
,(a) A civil servant cannot be dismissed or removed4 by an
,authority subordinate to that by which he was appointed.
,(b) A civil servant cannot be dismissed or removed or reduced in
,rank5 except after an inquiry in which he has been informed
,of the charges against him and given a reasonable
,opportunity of being heard in respect of those charges.
,The above two safeguards are available only to the members of
,"the civil services of the Centre, the all-India services, the civil"
,services of a state or to persons holding civil posts under the
,Centre or a state and not to the members of defence services or
,persons holding military posts.
,"However, the second safeguard (holding inquiry) is not"
,available in the following three cases:
,(a) Where a civil servant is dismissed or removed or reduced in
,rank on the ground of conduct which has led to his conviction
,on a criminal charge; or
,(b) Where the authority empowered to dismiss or remove a civil
,servant or to reduce him in rank is satisfied that for some
,"reason (to be recorded in writing), it is not reasonably"
,practicable to hold such inquiry; or
,(c) Where the president or the governor is satisfied that in the
,"interest of the security of the state, it is not expedient to hold"
,      such inquiry.
,"Originally, the opportunity of being heard was given to a civil"
,"servant at two stages–at the inquiry stage, and at the punishment"
,"stage. But, the 42nd Amendment Act of 1976 abolished the"
,"provision for second opportunity (that is, the right of a civil servant"
,to make representation against the punishment proposed as a
,"result of the findings of the inquiry). Hence, the present position is"
,that where it is proposed (after inquiry) to impose upon a civil
,"servant the punishment of dismissal, removal or reduction in rank,"
,it may be imposed on the basis of the evidence adduced at the
,inquiry without giving him any opportunity of making
,representation on the penalty proposed.
,The Supreme Court held that the expression ‘reasonable
,opportunity of being heard’ envisaged to a civil servant (in the
,second safeguard mentioned above) includes:
,(a) an opportunity to deny his guilt and establish his innocence
,which he can only do if he is told what the charges levelled
,against him are and the allegations on which such charges
,are based;
,(b) an opportunity to defend himself by cross-examining the
,witnesses produced against him and by examining himself or
,any other witnesses in support of his defence; and
,(c) the disciplinary authority must supply a copy of the inquiry
,officer’s report to the delinquent civil servant for observations
,and comments before the disciplinary authority considers the
,report.
,
,4. All-India Services
,Article 312 makes the following provisions in respect of all-India
,services:
,(a) The Parliament can create new allIndia services (including
,"an all-India judicial service), if the Rajya Sabha passes a"
,resolution declaring that it is necessary or expedient in the
,national interest to do so. Such a resolution in the Rajya
,Sabha should be supported by two-thirds of the members
,present and voting. This power of recommendation is given
,to the Rajya Sabha to protect the interests of states in the
,Indian federal system.
,  (b) Parliament can regulate the recruitment and conditions of
,service of persons appointed to all-India services.
,"Accordingly, the Parliament has enacted the All-India"
,"Services Act, 1951 for the purpose."
,(c) The services known at the commencement of the
,"Constitution (that is, January 26, 1950) as the Indian"
,Administrative Service and the Indian Police Service are
,deemed to be services created by Parliament under this
,provision.
,(d) The all-India judicial service should not include any post
,inferior to that of a district judge6. A law providing for the
,creation of this service is not to be deemed as an
,amendment of the Constitution for the purposes of Article
,368
,Though the 42nd Amendment Act of 1976 made the provision
,"for the creation of allIndia judicial service, no such law has been"
,made so far.
,
,5. Other Provisions
,Article 312 A (inserted by the 28th Amendment Act of 1972)
,confers powers on the Parliament to vary or revoke the conditions
,of service of persons who were appointed to a civil service of the
,Crown in India before 1950. Article 313 deals with transitional
,"provisions and says that until otherwise provided, all the laws in"
,force before 1950 and applicable to any public service would
,continue. Article 314 which made provision for protection of
,existing officers of certain services was repealed by the 28th
,Amendment Act of 1972.
,
,Table 66.1 Articles Related to Public Services at a Glance
,Article No. Subject-matter
,308.      Interpretation
,309.      Recruitment and conditions of service of persons
,serving the Union or a state
,310.      Tenure of office of persons serving the Union or a
,state
,"  311.     Dismissal, removal or reduction in rank of persons"
,employed in civil capacities under the Union or a
,state
,312.      All-India Services
,312A.     Power of Parliament to vary or revoke conditions
,of service of officers of certain services
,313.      Transitional provisions
,314.      Provision for protection of existing officers of
,certain services (Repealed)
,
,
,NOTES AND REFERENCES
,"1. In 1963, a provision was made for the creation of three"
,more all-India services. They were Indian Forest
,"Service, Indian Medical and Health Service and Indian"
,"Service of Engineers. However, out of these three, only"
,the Indian Forest Service came into existence in 1966.
,2. This was done on the recommendation of the Third Pay
,Commission (1970–1973) while the earlier change was
,done on the recommendation of the First Pay
,Commission (1946–1947).
,3. A ‘civil post’ means an appointment or office or
,employment on the civil side of the administration as
,distinguished from the military side.
,4. The difference between dismissal and removal is that
,the former disqualifies for future employment under the
,government while the latter does not disqualify for future
,employment under the government.
,5. ‘Reduction in rank’ means reduction from a higher to a
,lower rank or post. It is a penalty imposed on a civil
,servant.
,6. The expression ‘district judge’ includes judge of a city
,"civil court, additional district judge, joint district judge,"
,"assistant district judge, chief judge of a small cause"
,"court, chief presidency magistrate, additional chief"
,"presidency magistrate, sessions judge, additional"
,sessions judge and assistant sessions judge.
, 67 Rights and Liabilities of the
,Government
,
,
,
,
,A
,rticles 294 to 300 in Part XII of the Constitution deal with
,"the property, contracts, rights, liabilities, obligations and"
,"suits of the Union and the states. In this regard, the"
,Constitution makes the Union or the states as juristic (legal)
,persons.
, PROPERTY OF THE UNION AND THE STATES
,
,1. Succession
,All property and assets that were vested in the Dominion of India
,"or a province or an Indian princely state, before the"
,"commencement of the present Constitution, became vested in the"
,Union or the corresponding state.
,"Similarly, all rights, liabilities and obligations of the government"
,of the dominion of India or a province or an Indian state would
,"now be the rights, liabilities and obligations of the Government of"
,India or the corresponding state.
,
,"2. Escheat, Lapse and Bona Vacantia"
,Any property in India that would have accrued to King of England
,or ruler of Indian state (princely) by escheat (death of a person
,"inte-state without any heir), lapse (termination of rights through"
,disuse or failure to follow appropriate procedures) or bona
,vacantia (property found without any owner) for want of a rightful
,"owner, would now vest in the state if the property is situated there,"
,"and in the Union, in any other case. In all these three cases, the"
,property accrues to the government as there is no rightful owner
,(claimant).
,
,3. Sea-Wealth
,"All lands, minerals and other things of value under the waters of"
,"the ocean within the territorial waters of India, the continental shelf"
,of India and the exclusive economic zone of India vests in the
,"Union. Hence, a state near the ocean cannot claim jurisdiction"
,over these things.
,India’s territorial waters extend to a distance of 12 nautical
,"miles from the appropriate base line. Similarly, India’s exclusive"
,economic zone extends upto 200 nautical miles1 .
,
,4. Compulsory Acquisition by Law
,The Parliament as well as the state legislatures are empowered to
,make laws for the compulsory acquisition and requisitioning of
,"private property by the governments. Further, the 44th"
,Amendment Act (1978) has also abolished the constitutional
,obligation to pay compensation in this regard except in two cases:
,(a) when the government acquires the property of a minority
,educational institution; and (b) when the government acquires the
,land held by a person under his personal cultivation and the land
,is within the statutory ceiling limits2 .
,
,5. Acquisition under Executive Power
,"The Union or a state can acquire, hold and dispose property"
,under the exercise of its executive power.
,"Further, the executive power of the Union or a state extends to"
,the carrying on any trade or business within and in other states
,also.
, SUITS BY OR AGAINST THE GOVERNMENT
,
,Article 300 of the Constitution deals with the suits by or against
,the Government in India. It lays down that the Government of
,India may sue or be sued by the name of the Union of India and
,government of a state may sue or be sued by the name of that
,"state, eg, State of Andhra Pradesh or State of Uttar Pradesh and"
,"so on. Thus, the Union of India and states are legal entities"
,"(juristic personalities) for purposes of suits and proceedings, not"
,the Government of the Union or government of states.
,"Regarding the extent of the governmental liability, the"
,Constitution (Article 300) declares that the Union of India or states
,can sue or be sued in relation to their respective affairs in the like
,cases as the dominion of India and the corresponding provinces
,or Indian states might have sued or been sued before the
,Constitution. This provision is subject to any law made by
,"Parliament or a state legislature. But, no such law has been"
,"enacted so far. Hence, at present, the position in this respect"
,remains the same as it existed before the Constitution. In the pre-
,"Constitution period (i.e., from the days of the East India Company"
,"up to the commencement of the Constitution in 1950), the"
,government was suable for contracts but not for torts (wrongs
,committed by its servants) in respect of its sovereign functions.
,This is explained in detail as follows:
,
,1. Liability for Contracts
,"Under the exercise of its executive power, the Union or a state"
,"can enter into contracts for the acquisition, holding and disposal of"
,"property, or to carry on any trade or business, or for any other"
,"purpose. But, the Constitution lays down three conditions which"
,must be fulfilled by such contracts:
,(a) They must be expressed to be made by the president or
,"governor, as the case may be;"
,(b) They must be executed on behalf of the president or
,"governor, as the case may be; and"
,(c) They must be executed by such person or in such manner as
,the president or governor may direct or authorise.
,   These conditions are mandatory and not merely directory in
,nature. Failure to comply with them nullifies the contracts and
,renders them void and unenforceable in the courts.
,"Further, the president or the governor is not personally liable in"
,"respect of any contract executed in his name. Similarly, the officer"
,executing the contract is also not personally liable. This immunity
,is purely personal and does not immunize the government from a
,"contractual liability, making the government suable in contracts."
,This means that the contractual liability of the Union government
,and the state governments is the same as that of an individual
,"under the ordinary law of contract, which has been the position in"
,India since the days of the East India Company.
,
,2. Liability for Torts
,"In the beginning, the East India Company was only a trading body."
,"Gradually, it acquired territories in India and became a sovereign"
,authority. The Company was suable for its functions as a trader
,but not as a sovereign. This immunity of the Company in respect
,of its sovereign functions was based on the English Common Law
,"maxim that the ‘King can do no wrong’, which means that the King"
,was not liable for wrongs of his servants. This traditional immunity
,"of the State (i.e., Crown) in Britain from any legal liability for any"
,action has been done away by the Crown Proceedings Act (1947).
,"However, the position in India still remains the same."
,"Therefore, the government (Union or states) in India can be"
,sued for torts (civil wrongs) committed by its officials only in the
,exercise of its non-sovereign functions but not in the sovereign
,"functions like administering justice, constructing a military road,"
,"commandeering goods during war, etc. This distinction between"
,the sovereign and nonsovereign functions of the Government in
,India and the immunity of the government in respect of its
,sovereign functions was established in the famous P and O
,Steam Navigation Company case3 (1861). This was reaffirmed by
,the Supreme Court in the post-independence era in the Kasturilal
,"case4 (1965). However, after this case, the Supreme Court started"
,giving a restrictive interpretation to sovereign functions of the
,government and awarded compensation to victims in a large
,number of cases.
,"In Nagendra Rao Case4a (1994), the Supreme Court criticised"
,the doctrine of sovereign immunity of the State and adopted a
,liberal approach with respect to the tortuous liability of the State. It
,ruled that when a citizen suffers any damage due to the negligent
,"act of the servants of the State, the State would be liable to pay"
,compensation for it and the State cannot avoid this liability on the
,"ground of sovereign immunity. It held that in the modern sense,"
,the distinction between sovereign and non-sovereign functions
,does not exist. It laid down the proposition that barring a few
,"functions, the State cannot claim any immunity. Its observations,"
,"in this case, are as follows:"
,1. No civilised system can permit an executive to play with the
,people of its country and claim that it is entitled to act in any
,manner as it is sovereign. The concept of public interest has
,changed with structural change in the society. No legal or
,political system today can place the State above law as it is
,unjust and unfair for a citizen to be deprived of his property
,illegally by negligent act of officers of the State without any
,remedy.
,2. The modern social thinking of progressive societies and the
,judicial approach is to do away with archaic State protection
,and place the State or the Government at par with any other
,juristic legal entity. Any water-tight compartmen-talisation of
,the functions of the State as “sovereign” and “non-sovereign”
,or “governmental” and “non-governmental” is not sound. It is
,contrary to modern jurisprudential thinking.
,"3. The need of the State, duty of its officials and right of the"
,citizens are required to be reconciled so that the rule of law
,"in a welfare State is not shaken. In a welfare State, the"
,functions of the State are not only the defence of the country
,or administration of justice or maintaining law and order but
,it extends to regulating and controlling the activities of the
,"people in almost every sphere–educational, commercial,"
,"social, economic, political and even marital."
,4. The demarcating line between sovereign and non-sovereign
,powers for which no rational basis survives has largely
,"       disappeared. Therefore, barring functions such as"
,"administration of justice, maintenance of law and order and"
,"repression of crime etc., which are among the primary and"
,"inalienable functions of a constitutional Government, the"
,State cannot claim any immunity.
,"In the above case, the Supreme Court did not overrule its"
,"judgement in the Kasturilal case (1965). However, it said that it is"
,applicable to rare and limited cases.
,"In Common Cause Case4b (1999), the Supreme Court again"
,examined the whole doctrine and rejected the sovereign immunity
,rule. The Court held that the rule of State liability as laid down in
,P. & O. Steam Navigation Company case is very outmoded. It said
,that in modern times when the State activities have been
,considerably increased it is very difficult to draw a line between its
,sovereign and non-sovereign functions. The increased activities of
,the State have made a deep impression on all facets of citizens’
,"life, and therefore, the liability of the State must be made co-"
,extensive with the modern concept of a welfare State. The State
,"must be liable for all tortuous acts of its employees, whether done"
,"in exercise of sovereign or non-sovereign powers4c. Finally, the"
,court observed that the efficacy of Kasturilal case as a binding
,precedent has been eroded.
,"In the Prisoner’s Murder case4d (2000), the Supreme Court"
,ruled that in the process of judicial advancement Kasturilal case
,has paled into insignificance and is no longer of any binding value.
, SUITS AGAINST PUBLIC OFFICIALS
,
,1. President and Governor
,The Constitution confers certain immunities to the president of
,India and governor of states with regard to their official acts and
,personal acts. These are:
,
,(a) Official Acts
,The president and the governors cannot be sued during the term
,"of their office or thereafter, for any act done by them in the"
,exercise and performance of their official powers and duties.
,"However, the official conduct of the president can be reviewed by"
,"a court, tribunal or any other body authorised by either House of"
,"Parliament to investigate charges for impeachment. Further, the"
,aggrieved person can bring appropriate proceedings against the
,Union of India instead of the president and the state instead of the
,Governor of that state.
,
,(b) Personal Acts
,No criminal proceedings can be started against the president and
,the governors in respect of their personal acts nor can they be
,arrested or imprisoned. This immunity is limited to the period of
,the term of their office only and does not extend beyond that.
,"However, civil proceedings can be started against them during"
,their term of office in respect of their personal acts after giving two
,months’ advance notice.
,
,2. Ministers
,The Constitution does not grant any immunity to the ministers for
,"their official acts. But, since they are not required to countersign"
,"(as in Britain) the official acts of the president and the governors,"
,"they are not liable in the courts for those acts5. Moreover, they are"
,not liable for the official acts done by the president and the
,governors on their advice as the courts are debarred from
,"inquiring into such advice. However, the ministers do not enjoy"
,"any immunity for their personal acts, and can be sued for crimes"
,as well as torts in the ordinary courts like common citizens.
,
,3. Judicial Officers
,The judicial officers enjoy immunity from any liability in respect of
,"their official acts and hence, cannot be sued. The Judicial Officers"
,"Protection Act (1850) lays down that, ‘no judge, magistrate, justice"
,"of peace, collector or other person acting judicially shall be liable"
,to be sued in any civil court for any act done by him in the
,discharge of his official duty’.
,
,4. Civil Servants
,"Under the Constitution, the civil servants are conferred personal"
,immunity from legal liability for official contracts. This means that
,the civil servant who made a contract in his official capacity is not
,personally liable in respect of that contract but it is the government
,"(Central or state) that is liable for the contract. But, if the contract"
,is made without complying the conditions specified in the
,"Constitution, then the civil servant who made the contract is"
,"personally liable. Further, the civil servants also enjoy immunity"
,from legal liability for their tortious acts in respect of the sovereign
,"functions of the government. In other cases, the liability of the civil"
,servants for torts or illegal acts is the same as of any ordinary
,citizen. Civil proceedings can be instituted against them for
,anything done in their official capacity after giving a two months’
,"advance notice. But, no such notice is required when the action is"
,to be brought against them for the acts done outside the scope of
,their official duties. Criminal proceedings can be instituted against
,"them for acts done in their official capacity, with the prior"
,"permission of the president or the governor, where necessary6 ."
,
,Table 67.1 Articles Related to Rights and Liabilities of the
,Government at a Glance
,Article No. Subject-matter
,"294.       Succession to property, assets, rights, liabilities"
,and obligations in certain cases
,"  295.      Succession to property, assets, rights, liabilities"
,and obligations in other cases
,296.      Property accruing by escheat or lapse or as bona
,vacantia
,297.      Things of value within territorial waters or
,continental shelf and resources of the exclusive
,economic zone to vest in the Union
,"298.      Power to carry on trade, etc."
,299.      Contracts
,300.      Suits and proceedings
,361.      Protection (immunities) of President and
,Governors
,
,
,NOTES AND REFERENCES
,"1. Under the Territorial Waters, Continental Shelf,"
,Exclusive Economic Zone and other Maritime Zones
,"Act, 1976, passed by the Parliament after the 40th"
,"Constitutional Amendment Act, 1976."
,2. The first provision was added by the 44th Amendment
,Act (1978). This amendment abolished the
,Fundamental Right to property and made it a legal right.
,The second provision was added by the 17th
,Amendment Act (1964).
,3. Peninsular and Oriental Steam Navigation Company v.
,"Secretary of State for India, (1861)."
,"4. Kasturilal v. State of UP, (1965)."
,4a. N. Nagendra Rao & Co. v. State of Andhra Pradesh
,(1994).
,"4b. Common Cause, Registered Society v. Union of India"
,(1999).
,"4c. J.N. Pandey, The Constitutional Law of India, 49th"
,"Edition, Central Law Agency, p. 682."
,4d. State of A.P. v. Challa Ramkrishna Reddy (2000).
,"5. In Britain, the ministers are required to countersign the"
,official acts of the crown and are held liable in the courts
,for those acts.
,6. Criminal Procedure Code says–where a public servant
,who is not removable from his office save by or with the
,sanction of the Central or state government is accused
,"of an offence, committed by him while acting or"
,"purporting to act in the discharge of his official duty, no"
,court can take cognizance of such offence without the
,previous sanction of the Central government or the state
,"government, as the case may be."
, 68 Special Provisions Relating to
,Certain Classes
,
,
,RATIONALE OF SPECIAL PROVISIONS
,In order to realise the objectives of equality and justice as laid
,"down in the Preamble, the Constitution makes special provisions"
,"for the scheduled castes (SCs), the scheduled tribes (STs), the"
,backward classes (BCs) and the Anglo-Indians. These special
,provisions are contained in Part XVI of the Constitution from
,Articles 330 to 342A. They are related to the following:
,1. Reservation in Legislatures
,2. Special Representation in Legislatures
,3. Reservation in Services and Posts
,4. Educational Grants
,5. Appointment of National Commissions
,6. Appointment of Commissions of Investigation
,These special provisions can be classified into the following
,broad categories:
,(a) Permanent and Temporary – Some of them are a permanent
,"feature of the Constitution, while some others continue to"
,operate only for a specified period.
,(b) Protective and Developmental – Some of them aim at
,protecting these classes from all forms of injustice and
,"exploitation, while some others aim at promoting their socio-"
,economic interests.
, SPECIFICATION OF CLASSES
,
,The Constitution does not specify the castes or tribes which are to
,be called the SCs or the STs. It leaves to the President the power
,to specify as to what castes or tribes in each state and union
,"territory are to be treated as the SCs and STs. Thus, the lists of"
,the SCs or STs vary from state to state and union territory to union
,"territory. In case of the states, the President issues the notification"
,"after consulting the governor of the state concerned. But, any"
,inclusion or exclusion of any caste or tribe from Presidential
,notification can be done only by the Parliament and not by a
,subsequent Presidential notification. Presidents have issued
,several orders specifying the SCs and STs in different states and
,union territories and these have also been amended by the
,Parliament.1
,"Similarly, the constitution has not specified the classes of"
,citizens who are to be called the socially and educationally
,"backward classes, also known as Other Backward Classes"
,(OBCs). The 102nd Amendment Act of 2018 empowered the
,President to specify the socially and educationally backward
,"classes in relation to a state or union territory. In case of a state,"
,the President issues the notification after consultation with the
,"governor of the state concerned. But, any inclusion in or exclusion"
,from the Central List of socially and educationally backward
,classes specified in a Presidential notification can be done only by
,the Parliament and not by a subsequent Presidential notification2 .
,"Unlike in the case of SCs, STs and OBCs, the Constitution has"
,defined the persons who belong to the Anglo-Indian community.
,"Accordingly, ‘an Anglo-Indian means a person whose father or"
,any of whose other male progenitors in the male line is or was of
,European descent but who is domiciled within the territory of India
,and is or was born within such territory of parents habitually
,resident therein and not established there for temporary purposes
,only’.
,COMPONENTS OF SPECIAL PROVISIONS
,1. Reservation for SCs and STs and Special
,Representation for Anglo-Indians in Legislatures: Seats
,are to be reserved for the SCs and STs in the Lok Sabha
,and the state legislative assemblies on the basis of
,population ratios.
,The President can nominate two members of the Anglo-
,"Indian community to the Lok Sabha, if the community is not"
,"adequately represented. Similarly, the governor of a state"
,can nominate one member of the Anglo-Indian community to
,"the state legislative assembly, if the community is not"
,adequately represented.
,"Originally, these two provisions of reservation and special"
,"representation were to operate for ten years (i.e., up to"
,1960) only. But this duration has been extended
,"continuously since then by ten years each time. Now, under"
,"the 95th Amendment Act of 2009, these two provisions of"
,reservation and special representation are to last until 2020.3
,The reasons for the extension of the above two provisions
,of reservation and special representation by the 95th
,Amendment Act of 2009 are as follows3a:
,(i) Article 334 of the Constitution lays down that the
,provisions of the Constitution relating to the reservation
,of seats for the Scheduled Castes and the Scheduled
,Tribes and the representation of the Anglo-Indian
,community by nomination in the House of the People
,and the Legislative Assemblies of the States shall cease
,to have effect on the expiration of the period of sixty
,years from the commencement of the Constitution. In
,"other words, these provisions will cease to have effect on"
,"the 25th January, 2010, if not extended further."
,(ii) Although the Scheduled Castes and the Scheduled
,Tribes have made considerable progress in the last sixty
,"years, the reasons which weighed with the Constituent"
,Assembly in making provisions with regard to the
,aforesaid reservation of seats and nomination of
,"       members have not ceased to exist. It is, therefore,"
,proposed to continue the reservation for the Scheduled
,Castes and the Scheduled Tribes and the representation
,of the Anglo-Indian community by nomination for a
,further period of ten years.
,The reason for this special representation to the Anglo-
,"Indians is as follows: “Anglo-Indians constitute a religious,"
,"social, as well as a linguistic minority. These provisions were"
,"necessary, for, otherwise, being numerically an extremely"
,"small community, and being interspersed all over India, the"
,Anglo-Indians could not hope to get any seat in any
,legislature through election”.4
,2. Claims of SCs and STs to Services and Posts: The
,claims of the SCs and STs are to be taken into consideration
,while making appointments to the public services of the
,"Centre and the states, without sacrificing the efficiency of"
,"administration. However, the 82nd Amendment Act of 2000"
,provides for making of any provision in favour of the SCs
,and STs for relaxation in qualifying marks in any examination
,"or lowering the standards of evaluation, for reservation in"
,matters of promotion to the public services of the Centre and
,the states.
,3. Special Provision in Services and Educational Grants
,"for Anglo-Indians: Before independence, certain posts"
,"were reserved for the Anglo-Indians in the railway, customs,"
,"postal and telegraph services of the Union. Similarly, the"
,Anglo-Indian educational institutions were given certain
,special grants by the Centre and the states. Both the
,benefits were allowed to continue under the Constitution on
,a progressive diminution basis and finally came to an end in
,1960
,4. National Commissions for SCs and STs: The President
,should set up a National Commission for the SCs to
,investigate all matters relating to the constitutional
,safeguards for the SCs and to report to him (Article 338).
,"Similarly, the President should also set up a National"
,Commission for the STs to investigate all matters relating to
,the Constitutional safeguards for the STs and to report to
,   him (Article 338-A). The President should place all such
,"reports before the Parliament, along with the action taken"
,"memorandum. Previously, the Constitution provided for a"
,combined National Commission for SCs and STs. The 89th
,Amendment Act of 2003 bifurcated the combined
,commission into two separate bodies.5
,The National Commission for SCs is also required to
,discharge similar functions with regard to the Anglo-Indian
,Community as it does with respect to the SCs. In other
,"words, the commission has to investigate all matters relating"
,to the Constitutional and other legal safeguards for the
,Anglo-Indian community and report to the President upon
,their working.6
,5. National Commission for BCs: The National Commission
,"for BCs was set-up in 1993 by an Act of Parliament. Later,"
,the 102nd Amendment Act of 2018 conferred a constitutional
,"status on the commission. For this purpose, the amendment"
,"inserted a new Article 338-B in the constitution. Accordingly,"
,the President should set-up a National Commission for the
,socially and educationally BCs to investigate all matters
,relating to the constitutional safeguards for the socially and
,educationally BCs and to report to him. The President
,"should place all such reports before the Parliament, along"
,with the action taken memorandum.
,6. Control of the Union over the Administration of
,Scheduled Areas and the Welfare of STs: The President
,is required to appoint a commission to report on the
,administration of the scheduled areas and the welfare of the
,STs in the states. He can appoint such a commission at any
,time but compulsorily after ten years of the commencement
,"of the Constitution. Hence, a commission was appointed in"
,the year 1960. It was headed by U.N. Dhebar and submitted
,"its report in 1961. After four decades, the second"
,commission was appointed in 2002 under the chairmanship
,of Dilip Singh Bhuria. It submitted its report in 2004.
,"Further, the executive power of the Centre extends to the"
,giving of directions to a state with respect to the drawing up
,     and execution of schemes for the welfare of the STs in the
,state.
,7. Appointment of a Commission to Investigate the
,Conditions of BCs: The President may appoint a
,commission to investigate the conditions of socially and
,educationally backward classes and to recommend the
,steps to improve their condition. The report of the
,"commission is to be placed before the Parliament, along with"
,"action taken memorandum. Under the above provision, the"
,President has appointed two commissions so far. The first
,backward classes commission was appointed in 1953 under
,the chairmanship of Kaka Kalelkar. It submitted its report in
,"1955. But, no action was taken on it as the"
,recommendations were considered to be too vague and
,impractical and also there was a sharp division among the
,members on the criterion of backwardness.
,The second Backward Classes Commission was
,appointed in 1979 with B.P. Mandal as chairman. It
,submitted its report in 1980. Its recommendations were also
,lying unattended till 1990 when the V.P. Singh Government
,declared reservation of 27 percent government jobs for the
,OBCs.7
,
,Table 68.1 Articles Related to Special Provisions for Certain
,Classes at a Glance
,Article No. Subject-matter
,330       Reservation of seats for scheduled castes and
,scheduled tribes in the House of the people
,331       Representation of the Anglo-Indian community in
,the House of the people
,332       Reservation of seats for scheduled castes and
,scheduled tribes in the legislative assemblies of
,the states
,333       Representation of the Anglo-Indian community in
,the legislative assemblies of the states
,334       Reservation of seats and special representation to
,           cease after seventy years
,335      Claims of scheduled castes and scheduled tribes
,to services and posts
,336      Special provision for Anglo-Indian community in
,certain services
,337      Special provision with respect to educational
,grants for the benefit of Anglo-Indian community.
,338      National Commission for scheduled castes
,338A      National Commission for scheduled tribes
,338B      National Commission for backward classes
,339      Control of the Union over the administration of
,scheduled areas and the welfare of scheduled
,tribes
,340      Appointment of a commission to investigate the
,conditions of backward classes
,341      Scheduled castes
,342      Scheduled tribes
,342A      Socially and educationally backward classes
,
,
,NOTES AND REFERENCES
,"1. These are the Constitution (Scheduled Castes) Order,"
,1950; the Constitution (Scheduled Castes) (Union
,"Territories) Order, 1951; the Constitution (Scheduled"
,"Tribes) Order, 1950; the Constitution (Scheduled Tribes)"
,"(Union Territories) Order, 1951 and so on. The"
,Parliament modified the Presidential orders by enacting
,the Scheduled Castes and Scheduled Tribes Orders
,"(Amendment) Act in 1956, in 1976 and in the"
,subsequent years.
,2. The 102nd Amendment Act of 2018 inserted a new
,Article 342A in the constitution.
,3. The 8th Amendment Act of 1959 extended the period of
,"ten years to twenty years, the 23rd Amendment Act of"
,"      1969 to thirty years, the 45th Amendment Act of 1980 to"
,"forty years, the 62nd Amendment Act of 1989 to fifty"
,"years, the 79th Amendment Act of 1999 to sixty years"
,"and the 95th Amendment Act of 2009 to seventy years,"
,"that is, until the year 2020."
,3a.    This information is downloaded from the website of the
,Ministry of Law and Justice (Legislative Department).
,"4.    M.P. Jain, Indian Constitutional Law, Wadhwa, Fourth"
,"Edition, p. 756."
,"5.    For complete details in this regard, see Chapters 47"
,and 48.
,"6.    Clause 10 of Article 338 reads as follows: “In this article,"
,reference to the Scheduled Castes shall be construed
,as including references to the Anglo-Indian community”.
,"7.    For complete details in this regard, see ‘Mandal"
,Commission and Aftermath’ in Chapter 7.
,                      PART-X
,POLITICAL DYNAMICS
,
,69. Political Parties
,70. Role of Regional Parties
,71. Elections
,72. Election Laws
,73. Electoral Reforms
,74. Voting Behaviour
,75. Coalition Government
,76. Anti-Defection Law
,77. Pressure Groups
,78. National Integration
,79. Foreign Policy
, 69       Political Parties
,
,
,MEANING AND TYPES
,Political parties are voluntary associations or organised groups of
,individuals who share the same political views and who try to gain
,political power through constitutional means and who desire to
,work for promoting the national interest. There are four types of
,"political parties in the modern democratic states, viz., (i)"
,reactionary parties which cling to the old socio-economic and
,political institutions; (ii) conservative parties which believe in the
,status-quo; (iii) liberal parties which aim at reforming the existing
,institutions; and (iv) radical parties which aim at establishing a
,new order by overthrowing the existing institutions. In their
,"classification of political parties on the basis of ideologies, the"
,political scientists have placed the radical parties on the left and
,the liberal parties in the centre and reactionary and conservative
,"parties on the right. In other words, they are described as the"
,"leftist parties, centrist parties and the rightist parties. In India, the"
,"CPI and CPM are the examples of leftist parties, the Congress of"
,centrist parties and the BJP is an example of rightist parties.
,"There are three kinds of party systems in the world, viz., (i) one"
,party system in which only one ruling party exists and no
,"opposition is permitted, as for example, in the former communist"
,countries like the USSR and other East European countries; (ii)
,"two-party system in which two major parties exists, as for"
,"example, in USA and Britain1 ; and (iii) multi-party system in which"
,there are a number of political parties leading to the formation of
,"coalition governments, as for example, in France, Switzerland and"
,Italy.
, PARTY SYSTEM IN INDIA
,
,The Indian party system has the following characteristic features:
,
,Multi-Party System
,"The continental size of the country, the diversified character of"
,"Indian society, the adoption of universal adult franchise, the"
,"peculiar type of political process, and other factors have given rise"
,"to a large number of political parties. In fact, India has the largest"
,number of political parties in the world. On the eve of seventeenth
,"Lok Sabha general elections (2019), there were 7 national parties,"
,52 state parties and 2354 registered - unrecognised parties in the
,"country2. Further, India has all categories of parties–left parties,"
,"centrist parties, right parties, communal parties, non-communal"
,"parties and so on. Consequently, the hung Parliaments, hung"
,assemblies and coalition governments have become a common
,phenomena.
,
,One-Dominant Party System
,"In spite of the multiparty system, the political scene in India was"
,"dominated for a long period by the Congress. Hence, Rajni"
,"Kothari, an eminent political analyst, preferred to call the Indian"
,party system as ‘one party dominance system’ or the ‘Congress
,system’3. The dominant position enjoyed by the Congress has
,been declining since 1967 with the rise of regional parties and
,"other national parties like Janata (1977), Janata Dal (1989) and"
,the BJP (1991) leading to the development of a competitive multi-
,party system.
,
,Lack of Clear Ideology
,"Except the BJP and the two communist parties (CPI and CPM), all"
,"other parties do not have a clear-cut ideology. They (i.e., all other"
,parties) are ideologically closer to each other. They have a close
,resemblance in their policies and programmes. Almost every party
,"advocates democracy, secularism, socialism and Gandhism. More"
,"than this, every party, including the so-called ideological parties, is"
,"guided by only one consideration–power capture. Thus, politics"
,has become issuebased rather than the ideology and pragmatism
,has replaced the commitment to the principles.
,
,Personality Cult
,"Quite often, the parties are organised around an eminent leader"
,who becomes more important than the party and its ideology.
,Parties are known by their leaders rather than by their manifesto.
,It is a fact that the popularity of the Congress was mainly due to
,"the leadership of Nehru, Indira Gandhi and Rajiv Gandhi."
,"Similarly, the AIADMK in Tamil Nadu and TDP in Andhra Pradesh"
,got identified with MG Ramachandran and NT Rama Rao
,"respectively. Interestingly, several parties bear the name of their"
,"leader like Biju Janata Dal, Lok Dal (A), Congress (I) and so on."
,"Hence, it is said that “there are political personalities rather than"
,political parties in India”.
,
,Based on Traditional Factors
,"In the western countries, the political parties are formed on the"
,basis of socio-economic and political programme. On the other
,"hand, a large number of parties in India are formed on the basis of"
,"religion, caste, language, culture, race and so on. For example,"
,"Shiv Sena, Muslim League, Hindu Maha Sabha, Akali Dal, Muslim"
,"Majlis, Bahujan Samaj Party, Republican Party of India, Gorkha"
,League and so on. These parties work for the promotion of
,communal and sectional interests and thereby undermine the
,general public interest.
,
,Emergence of Regional Parties
,Another significant feature of the Indian party system is the
,emergence of a large number of regional parties and their growing
,role. They have become the ruling parties in various states like
,"BJD in Orissa, DMK or AIADMK in Tamil Nadu, Akali Dal in"
,"Punjab, AGP in Assam, National Conference in J&K, JD(U) in"
,"Bihar and so on. In the beginning, they were confined to the"
,"regional politics only. But, of late, they have come to play a"
,significant role in the national politics due to coalition governments
,"at the Centre. In the 1984 elections, the TDP emerged as the"
,largest opposition party in the Lok Sabha.
,
,Factions and Defections
,"Factionalism, defections, splits, mergers, fragmentation,"
,polarisation and so on have been an important aspect of the
,functioning of political parties in India. Lust for power and material
,considerations have made the politicians to leave their party and
,join another party or start a new party. The practice of defections
,gained greater currency after the fourth general elections (1967).
,This phenomenon caused political instability both at the Centre
,"and in the states and led to disintegration of the parties. Thus,"
,"there are two Janata Dals, two TDPs, two DMKs, two Communist"
,"Parties, two Congress, three Akali Dals, three Muslim Leagues"
,and so on.
,
,Lack of Effective Opposition
,An effective Opposition is very essential for the successful
,operation of the parliamentary democracy prevalent in India. It
,checks the autocratic tendencies of the ruling party and provides
,"an alternative government. However, in the last 50 years, an"
,"effective, strong, organised and viable national Opposition could"
,never emerge except in flashes. The Opposition parties have no
,unity and very often adopt mutually conflicting positions with
,respect to the ruling party. They have failed to play a constructive
,role in the functioning of the body politic and in the process of
,nation building.
, RECOGNITION OF NATIONAL AND STATE PARTIES
,
,The Election Commission registers political parties for the purpose
,of elections and grants them recognition as national or state
,parties on the basis of their poll performance. The other parties
,are simply declared as registered-unrecognised parties.
,The recognition granted by the Commission to the parties
,determines their right to certain privileges like allocation of the
,"party symbols, provision of time for political broadcasts on the"
,state-owned television and radio stations and access to electoral
,rolls.
,"Further, the recognized parties need only one proposer for filing"
,"the nomination. Also, these parties are allowed to have forty “star"
,campaigners” during the time of elections and the registered-
,unrecognized parties are allowed to have twenty “star
,campaigners”. The travel expenses of these star campaigners are
,not included in the election expenditure of the candidates of their
,parties.
,Every national party is allotted a symbol exclusively reserved
,"for its use throughout the country. Similarly, every state party is"
,allotted a symbol exclusively reserved for its use in the state or
,states in which it is so recognised. A registered-unrecognised
,"party, on the other hand, can select a symbol from a list of free"
,"symbols. In other words, the Commission specifies certain"
,symbols as ‘reserved symbols’ which are meant for the
,candidates set up by the recognised parties and others as ‘free
,symbols’ which are meant for other candidates.
,
,Conditions for Recognition as a National Party
,"At present (2019), a party is recognised as a national party if any"
,of the following conditions is fulfilled4 :
,1. If it secures six per cent of valid votes polled in any four or
,more states at a general election to the Lok Sabha or to the
,"legislative assembly; and, in addition, it wins four seats in"
,the Lok Sabha from any state or states; or
,  2. If it wins two per cent of seats in the Lok Sabha at a general
,election; and these candidates are elected from three states;
,or
,3. If it is recognised as a state party in four states.
,
,Conditions for Recognition as a State Party
,"At present (2019), a party is recognised as a state party in a state"
,if any of the following conditions is fulfilled5 :
,1. If it secures six per cent of the valid votes polled in the state
,at a general election to the legislative assembly of the state
,"concerned; and, in addition, it wins 2 seats in the assembly"
,of the state concerned; or
,2. If it secures six per cent of the valid votes polled in the state
,at a general election to the Lok Sabha from the state
,"concerned; and, in addition, it wins 1 seat in the Lok Sabha"
,from the state concerned; or
,3. If it wins three per cent of seats in the legislative assembly at
,a general election to the legislative assembly of the state
,"concerned or 3 seats in the assembly, whichever is more; or"
,4. If it wins 1 seat in the Lok Sabha for every 25 seats or any
,fraction thereof allotted to the state at a general election to
,the Lok Sabha from the state concerned; or
,5. If it secures eight per cent of the total valid votes polled in
,the state at a General Election to the Lok Sabha from the
,state or to the legislative assembly of the state. This
,condition was added in 2011.
,The number of recognised parties keeps on changing on the
,basis of their performance in the general elections. On the eve of
,"the seventeenth Lok Sabha general elections (2019), there were 7"
,"national parties, 52 state parties and 2354 registered-"
,unrecognised parties in the country6. The national parties and
,state parties are also known as all-India parties and regional
,parties respectively.
,
,Table 69.1 Recognised National Parties and State Parties (First
,to Seventeenth General Elections)
,General Elections                Number of         Number of State
,(Year)                       National Parties          Parties
,First (1952)                          14                 39
,Second (1957)                         4                  11
,Third (1962)                          6                  11
,Fourth (1967)                         7                  14
,Fifth (1971)                          8                  17
,Sixth (1977)                          5                  15
,Seventh (1980)                        6                  19
,Eighth (1984)                         7                  19
,Ninth (1989)                          8                  20
,Tenth (1991)                          9                  28
,Eleventh (1996)                       8                  30
,Twelfth (1998)                        7                  30
,Thirteenth (1999)                     7                  40
,Fourteenth (2004)                     6                  36
,Fifteenth (2009)                      7                  40
,Sixteenth (2014)                      6                  47
,Seventeenth (2019)                    7                  52
,
,Table 69.2 Recognised National Parties and their Symbols (2019)
,Sl. Name of the Party                     Symbol Reserved
,No. (Abbreviation)
,1.     Bahujan Samaj Party (BSP)         Elephant*
,2.     Bharatiya Janata Party (BJP)      Lotus
,3.     Communist Party of India (CPI) Ears of Corn and Sickle
,"4.     Communist Party of India          Hammer, Sickle and Star"
,(Marxist) (CPM)
,5.     Indian National Congress (INC) Hand
,6.     Nationalist Congress Party        Clock
,(NCP)
,  7.   All India Trinamool Congress    Flowers and Grass
,(AITC)
,8.   National People’s Party (NPP)   Book
,"*In all States/U.T.s except in Assam, where its candidates will"
,have to choose a symbol out of the list of free symbols specified
,by the Election Commission.
,
,Table 69.3 Recognised State Parties and their Symbols (2019)
,Sl. Name of        Name of the State Party Symbol
,No. the State /    (Abbreviation)          Reserved
,Union
,Territory
,1.   Andhra        1. Telangana Rashtra     Car
,Pradesh          Samithi (TRS7 )
,2. Telugu Desam (TDP) Bicycle
,3. Yuvajana Sramika      Ceiling Fan
,Rythu Congress
,Party (YSRCP)
,2.   Arunachal     1. People’s Party of     Maize
,Pradesh          Arunachal (PPA)
,2. Janata Dal (United)   Arrow
,(JD(U))
,3. Janata Dal (Secular) A Lady farmer
,(JD(S))              carrying Paddy on
,her head
,3.   Assam         1. All India United      Lock & Key
,Democratic Front
,(AUDF)
,2. Asom Gana             Elephant
,Parishad (AGP)
,3. Bodoland People’s     Nangol
,Front (BPF)
,4.   Bihar         1. Janata Dal (United)   Arrow
,                      (JD(U))
,2. Lok Jan Shakti Party Bungalow
,(LJSP)
,3. Rashtriya Janata Dal Hurricane Lamp
,(RJD)
,4. Rashtriya Lok Samta Ceiling Fan
,Party (RLSP)
,5.   Chhattisgarh Janata Congress          Farmer Ploughing
,Chhattisgarh (JCC)       (within square)
,6.   Goa           1. Maharashtrawadi      Lion
,Gomantak (MAG)
,2. Goa Forward Party    Coconut
,(GFP)
,7.   Haryana     Indian National Lok Dal   Spectacles
,(INLD)
,8.   Jammu &       1. Jammu & Kashmir     Plough
,Kashmir          National Conference
,(JKNC)
,2. Jammu & Kashmir      Bicycle
,National Panthers
,Party (JKNPP)
,3. Jammu and Kashmir Ink Pot & Pen
,People’s Democratic
,Party (JKPDP)
,9.   Jharkhand     1. All Jharkhand        Banana
,Students Union
,(AJSU)
,2. Jharkhand Mukti      Bow & Arrow
,Morcha (JMM)
,3. Jharkhand Vikas      Comb
,Morcha
,(Prajatantrik)
,(JVM(P))
,4. Rashtriya Janata Dal Hurricane Lamp
,                      (RJD)
,10. Karnataka     Janata Dal (Secular)      A Lady Farmer
,(JD(S))                   carrying Paddy on
,her head
,11. Kerala         1. Janata Dal (Secular) A Lady Farmer
,(JD(S))              carrying Paddy on
,her head
,2. Kerala Congress (M) Two Leaves
,(KEC(M))
,3. Indian Union Muslim Ladder
,League (IUML)
,4. Revolutionary         Spade & Stoker
,Socialist Party
,(RSP)
,12. Maharashtra    1. Maharashtra           Railway Engine
,Navnirman Sena
,(MNS)
,2. Shiv Sena (SHS)       Bow and Arrow
,13. Manipur        1. Naga People’s Front Cock
,(NPF)
,2. People’s Democratic Crown
,Alliance (PDA)
,14. Meghalaya      1. United Democratic     Drum
,Party (UDP)
,2. Hill State People’s   Lion
,Democratic Party
,(HSPDP)
,3. People’s Democratic Candles
,Front (PDF)
,15. Mizoram        1. Mizo National Front   Star
,(MNF)
,2. Mizoram People’s      Electric Bulb
,Conference (MPC)
,                  3. Zoram Nationalist   Sun (without rays)
,Party (ZNP)
,16. Nagaland      1. Naga People’s Front Cock
,(NPF)
,2. Nationalist         Globe
,Democratic
,Progressive Party
,(NDPP)
,17. N.C.T. of    Aam Aadmi Party (AAP) Broom
,Delhi
,18. Odisha       Biju Janata Dal (BJD)   Conch
,19. Puducherry    1. All India Anna      Two Leaves
,Dravida Munnetra
,Kazhagam (ADMK)
,or (AIADMK)
,2. All India N.R.      Jug
,Congress (AINRC)
,3. Dravida Munnetra    Rising Sun
,Kazhagam (DMK)
,4. Pattali Makkal Katchi Mango
,(PMK)
,20. Punjab        1. Shiromani Akali Dal Scales
,(SAD)
,2. Aam Aadmi Party     Broom
,(AAP)
,21. Rajasthan    Rashtriya Loktantrik    Bottle
,Party (RLP)
,22. Sikkim        1. Sikkim Democratic   Umbrella
,Front (SDF)
,2. Sikkim Krantikari   Table Lamp
,Morcha (SKM)
,23. Tamil Nadu    1. All India Anna      Two leaves
,Dravida Munnetra
,                         Kazhagam (ADMK)
,or (AIADMK)
,2. Dravida Munnetra       Rising Sun
,Kazhagam (DMK)
,3. Desiya Murpokku        Nagara
,Dravida Kazhagam
,(DMDK)
,24. Telangana        1. All India Majlis-E- Kite
,Ittehadul Muslimeen
,(AIMIM)
,2. Telangana Rashtra      Car
,Samithi (TRS)
,3. Telugu Desam           Bicycle
,(TDP)
,4. Yuvajana Sramika       Ceiling Fan
,Rythu Congress
,Party (YSRCP)8
,25. Tripura         Indigenous People’s        Dao
,Front of Tripura (IPFT)
,26. Uttar            1. Rashtriya Lok Dal      Hand Pump
,Pradesh             (RLD)
,2. Samajwadi Party        Bicycle
,(SP)
,27. West Bengal      1. All India Forward      Lion
,Bloc (AIFB)
,2. Revolutionary          Spade & Stoker
,Socialist Party
,(RSP)
,
,Table 69.4 Formation of Political Parties (Chronological Order)
,Sl. No.     Name of the Party                        Year of
,(Abbreviation)                          Formation
,1.       Indian National Congress (INC)             1885
,2.    Shiromani Akali Dal (SAD)         1920
,3.    Communist Party of India (CPI)    1925
,4.    Jammu & Kashmir National          1939
,Conference (JKNC)
,5.    All India Forward Bloc (AIFB)     1939
,6.    Revolutionary Socialist Party     1940
,(RSP)
,7.    Indian Union Muslim League        1948
,(IUML)
,8.    Dravida Munnetra Kazhagam         1949
,(DMK)
,9.    Mizo National Front (MNF)         1961
,10.   Maharashtrawadi Gomantak          1963
,Party (MAG)
,11.   Communist Party of India          1964
,(Marxist) (CPM)
,12.   Shiv Sena (SHS)                   1966
,13.   Mizoram People’s Conference       1972
,(MPC)
,14.   Jharkhand Mukti Morcha (JMM)      1972
,15.   All India Anna Dravida Munnetra   1972
,Kazhagam (AIADMK)
,16.   Kerala Congress (M) (KEC (M))     1979
,17.   Bharatiya Janata Party (BJP)      1980
,18.   Telugu Desam Party (TDP)          1982
,19.   Bahujan Samaj Party (BSP)         1984
,20.   Asom Gana Parishad (AGP)          1985
,21.   People’s Party of Arunachal       1987
,(PPA)
,22.   Samajwadi Party (SP)              1992
,23.   Sikkim Democratic Front (SDF)     1993
,24.   Rashtriya Lok Dal (RLD)             1996
,25.   Zoram Nationalist Party (ZNP)       1997
,26.   Rashtriya Janata Dal (RJD)          1997
,27.   Biju Janata Dal (BJD)               1997
,28.   All India Trinamool Congress        1998
,(AITC)
,29.   Indian National Lok Dal (INLD)      1998
,30.   Jammu and Kashmir People’s          1999
,Democratic Party (PDP)
,31.   Janata Dal (United) (JD (U))        1999
,32.   Janata Dal (Secular) (JD(S))        1999
,33.   Nationalist Congress Party (NCP)    1999
,34.   Lok Jan Shakti Party (LJSP)         2000
,35.   Telangana Rashtra Samithi (TRS)     2001
,36.   Naga People’s Front (NPF)           2002
,37.   All India United Democratic Front   2004
,(AUDF)
,38.   Desiya Murpokku Dravidar            2005
,Kazhagam (DMDK)
,39.   Maharashtra Navnirman Sena          2006
,(MNS)
,40.   Jharkhand Vikas Morcha              2006
,(Prajatantrik) (JVM - P)
,41.   Indigenous People’s Front of        2009
,Tripura (IPFT)
,42.   Yuvajana Sramika Rythu              2011
,Congress Party (YSRCP)
,43.   All India N.R. Congress (AINRC)     2011
,44.   Aam Aadmi Party (AAP)               2012
,45.   National People’s Party (NPP)       2013
,46.   Rashtriya Lok Samta Party           2013
,          (RLSP)
,47.     Sikkim Krantikari Morcha (SKM)          2013
,48.     Goa Forward Party (GFP)                 2016
,49.     Janata Congress Chhattisgarh            2016
,(JCC)
,50.     People’s Democratic Front (PDF)         2017
,51.     National Democratic Progressive         2018
,Party (NDPP)
,52.     Rashtriya Loktantrik Party (RLP)        2018
,
,
,NOTES AND REFERENCES
,1. The two parties in the US are Democratic and
,"Republican, and in Britain are Conservative and Labour."
,2. As per the Notifications issued by the Election
,"Commission of India dated 15th March, 2019 and 1st"
,"April, 2019."
,"3. Rajni Kothari: Congress System in India, Asian Survey,"
,"Volume 4, No. 12 (December, 1964), pp. 1–18."
,4. The Election Symbols (Reservation and Allotment)
,"Order, 1968, as amended from time to time. The latest"
,amendment to this order was made in 2011.
,5. Ibid.
,6. See Reference 2 above.
,7. As per the Notification issued by the Election
,"Commission of India dated 15th March, 2019."
,8. Ibid.
, 70       Role of Regional Parties
,
,
,
,
,T
,he presence of a large number of regional parties is an
,important feature of the Indian Political System. They have
,"come to play a vital role in Indian politics at all levels, i.e."
,"local, state and national. This is more so in the context of the new"
,era of coalition politics.
, FEATURES OF REGIONAL PARTIES
,
,Following are the features of a regional party:
,1. It generally operates within a particular state or specific
,region. Its electoral base is limited to a single region.
,2. It articulates regional interests and identifies itself with a
,"particular cultural, religious, linguistic or ethnic group."
,3. It is primarily concerned with exploiting the local resources
,of discontent or preserving a variety of primordial demands
,"based on language, caste or community or region1 ."
,4. It focuses on local or regional issues and aims to capture
,political power at the state level. It has no inclination to
,expand and control the central government.
,5. It has a political desire for greater regional autonomy of
,states in the Indian Union2 .
, CLASSIFICATION OF REGIONAL PARTIES
,The various regional parties in India can be classified into the
,following four categories:
,1. Those regional parties which are based on the regional
,"culture or ethnicity. These include Shiromani Akali Dal,"
,"National Conference, DMK, AIADMK, Telugu Desam, Shiv"
,"Sena, Asom Gana Parishad, Mizo National Front, Jharkhand"
,Mukti Morcha and so on.
,2. Those regional parties which have an all-India outlook but
,lack a national electoral base. The examples are Indian
,"National Lok Dal, All-India Forward Bloc, Revolutionary"
,"Socialist Party, Samajwadi Party, Nationalist Congress Party"
,and so on.
,3. Those regional parties which have been formed by a split in
,"national parties. For example, Bangla Congress, Bharatiya"
,"Kranti Dal, Utkal Congress, Kerala Congress, Telangana"
,"Praja Samithi, Biju Janata Dal, Rashtriya Janata Dal, Janata"
,"Party, Samajwadi Janata Party, Samata Party, Trinamool"
,"Congress, YSR Congress and so on."
,4. Those regional parties which have been formed by individual
,leaders on the basis of their charismatic personality. These
,are called as personalised parties and they are short-lived.
,"The examples are Lok Janshakti Party, Haryana Vikas Party,"
,"Himachal Vikas Congress, Congress (J) and so on."
, RISE OF REGIONAL PARTIES
,
,There are multiple reasons for the emergence of regional parties
,in India. These are as follows:
,1. Cultural and ethnic pluralism of the Indian society.
,2. Economic disparities and regional imbalances in the
,development.
,3. Desire of certain sections or areas to maintain separate
,identity due to historical factors.
,4. Self-interest of the deposed Maharajas and dispossessed
,Zamindars.
,5. Failure of national politics to meet the regional aspirations.
,6. Reorganisation of states on the basis of language.
,7. Charismatic personality of the regional leaders.
,8. Factional fights within the larger parties.
,9. Centralising tendencies of the congress party.
,10. Absence of a strong opposition party at the central level.
,11. Role of caste and religion in the political process.
,12. Alienation and discontentment among the tribal groups.
, ROLE OF REGIONAL PARTIES
,
,The following points highlight the role played by the regional
,parties in Indian politics:
,1. They have provided better governance and a stable
,government at the regional level.
,2. They have posed a challenge to the one-party dominant
,system in the country and led to a decline in the domination
,of the Congress party3 .
,3. They have made a strong impact on the nature and course
,of centre-state relations. The tension areas in centre-state
,relations and the demand for grant of greater autonomy
,made the central leadership more responsive to the needs of
,the regional actors4 .
,4. They have made politics more competitive and popular
,participation in the political process more extensive at the
,grass roots5 .
,5. They have widened the choice for voters in both the
,parliamentary and assembly elections. The voters can vote
,for that party which aims to promote the interest of their
,state/region.
,6. They have increased the political consciousness of the
,people and also their interest in politics. They bring into
,focus the local or regional issues which immediately attract
,the attention of the masses.
,7. They provided a check against the dictatorial tendencies of
,the central government. They opposed the ruling congress
,party at the centre on certain issues and forced the dominant
,party to be more reasonable in its approach to the process
,of conflict resolution6 .
,8. They have made a significant contribution for the successful
,functioning of parliamentary democracy. In a parliamentary
,"democracy, the minority must have its say, the majority must"
,"have its way, and the regional parties have played this role"
,successfully by being ruling parties in some states and
,opposition parties at the centre7 .
, 9. The have succeeded in exposing the partisan role of the
,Governors in the appointment and dismissal of the Chief
,"Minister, in issuing of ordinances and reservation of bills for"
,the consideration of the President8 .
,"10. After the dawn of the era of coalition politics, the regional"
,parties have assumed an important role in national politics.
,The have joined the coalition governments formed at the
,centre and shared power with the national parties9 .
, DYSFUNCTIONS OF REGIONAL PARTIES
,
,"However, there are also negative points in the role of regional"
,parties. These are as follows:
,1. They have given more importance to regional interests
,rather than national interests. They have neglected the
,implications and consequences of their narrow approach to
,the resolution of national issues.
,"2. They have encouraged regionalism, cas-teism, linguism,"
,communalism and tribalism which have become hurdles to
,national integration.
,3. They are responsible for the unresolution of the inter-state
,"water disputes, inter-state border disputes and other inter-"
,state issues.
,"4. They have also indulged in corruption, nepotism, favouritism"
,and other forms of misutilisation of power in order to
,promote their self-interest.
,5. They have focused more on the populist schemes and
,measures to expand and strengthen their electoral base.
,This has adversely affected the state economy and
,development.
,6. They bring in regional factor in the decision-making and the
,policy-making by the coalition government at the centre.
,They force the central leadership to yield to their demands10
,.
,
,
,NOTES AND REFERENCES
,1. Observation made by Stanley A. Kochnock in Ram
,"Reddy, G. and Sharma, B.A.V., Regionalism in India - A"
,"Study of Telangana, Concept Publishers, New Delhi,"
,"1979, pp. 87–88."
,"2. Brass, P.R., The Politics of India Since Independence,"
,"Second     Edition,  Cambridge       University Press,"
,"Cambridge, UK, 1993, p. 89."
,"3. Bombwall, K.R., Regional parties in Indian politics: A"
,"preview. In Bhatnagar, S. and Kumar, P. (Eds) Regional"
,"      Political Parties in India, ESS Publications, Delhi, 1988,"
,pp. 1–16.
,4.   Ibid.
,5.   Ibid.
,"6.   Siwach, J.R., Dynamics of Indian Government and"
,"Politics, Second Edition, Sterling Publishers Private"
,"Limited, New Delhi, 1990, p. 865."
,7.   Ibid.
,8.   Ibid.
,"9.   For more details in this regard, see Chapter 75."
,10.   Ibid.
, 71       Elections
,
,
,ELECTORAL SYSTEM
,Articles 324 to 329 in Part XV of the Constitution make the
,following provisions with regard to the electoral system in our
,country:
,1. The Constitution (Article 324) provides for an independent
,Election Commission in order to ensure free and fair
,"elections in the country. The power of superintendence,"
,"direction and conduct of elections to the Parliament, the"
,"state legislatures, the office of the President and the office of"
,"the VicePresident is vested in the Commission1. At present,"
,the commission consists of a chief election commissioner
,and two election commissioners2 .
,2. There is to be only one general electoral roll for every
,territorial constituency for election to the Parliament and the
,"state legislatures. Thus, the Constitution has abolished the"
,system of communal representation and separate
,electorates which led to the partition of the country.
,3. No person is to be ineligible for inclusion in the electoral roll
,"on grounds only of religion, race, caste, sex or any of them."
,"Further, no person can claim to be included in any special"
,"electoral roll for any constituency on grounds only of religion,"
,"race, caste or sex or any of them. Thus, the Constitution has"
,accorded equality to every citizen in the matter of electoral
,franchise.
,4. The elections to the Lok Sabha and the state assemblies are
,"to be on the basis of adult franchise. Thus, every person"
,"who is a citizen of India and who is 183 years of age, is"
,entitled to vote at the election provided he is not disqualified
,under the provisions of the Constitution or any law made by
,the appropriate legislature (Parliament or state legislature)
,"      on the ground of non-residence, unsound mind, crime or"
,corrupt or illegal practice4 .
,5. Parliament may make provision with respect to all matters
,relating to elections to the Parliament and the state
,"legislatures including the preparation of electoral rolls, the"
,delimitation of constituencies and all other matters
,necessary for securing their due constitution.
,6. The state legislatures can also make provision with respect
,to all matters relating to elections to the state legislatures
,including the preparation of electoral rolls and all other
,"matters necessary for securing their due constitution. But,"
,they can make provision for only those matters which are not
,"covered by the Parliament. In other words, they can only"
,supplement the parliamentary law and cannot override it.
,7. The Constitution declares that the validity of any law relating
,to the delimitation of constituencies or the allotment of seats
,to such constituencies cannot be questioned in any court.
,"Consequently, the orders issued by the Delimitation"
,Commission become final and cannot be challenged in any
,court.
,8. The Constitution lays down that no election to the
,Parliament or the state legislature is to be questioned except
,by an election petition presented to such authority and in
,such manner as provided by the appropriate legislature.
,"Since 1966, the election petitions are triable by high courts"
,"alone. But, the appellate jurisdiction lies with the Supreme"
,Court alone.
,Article 323B empowers the appropriate legislature (Parliament
,or state legislature) to establish a tribunal for the adjudication of
,election disputes. It also provides for the exclusion of the
,jurisdiction of all courts (except the special leave appeal
,"jurisdiction of the Supreme Court) in such disputes. So far, no"
,such tribunal has been established. It must be noted here that in
,"Chandra Kumar case5 (1997), the Supreme Court declared this"
,"provision as unconstitutional. Consequently, if at any time an"
,"election tribunal is established, an appeal from its decision lies to"
,the high court.
, ELECTION MACHINERY
,
,Election Commission of India (ECI)
,"Under Article 324 of the Constitution of India, the Election"
,"Commission of India is vested with the power of superintendence,"
,direction and control of conducting the elections to the Lok Sabha
,and State Legislative Assemblies. The Election Commission of
,"India is a three-member body, with one Chief Election"
,Commissioner and two Election Commissioners. The President of
,India appoints the Chief Election Commissioner and the Election
,Commissioners.
,
,Chief Electoral Officer (CEO)
,The Chief Electoral Officer of a state/ Union Territory is authorised
,to supervise the election work in the state/Union Territory subject
,"to the overall superintendence, direction and control of the"
,Election Commission. The Election Commission of India
,nominates or designates an Officer of the Government of the state
,/ Union Territory as the Chief Electoral Officer in consultation with
,that State Government / Union Territory Administration.
,
,District Election Officer (DEO)
,"Subject to the superintendence, direction and control of the Chief"
,"Electoral Officer, the District Election Officer supervises the"
,election work of a district. The Election Commission of India
,nominates or designates an officer of the state Government as the
,District Election Officer in consultation with the state government.
,
,Returning Officer (RO)
,The Returning Officer of a Parliamentary or assembly
,constituency is responsible for the conduct of elections in the
,Parliamentary or assembly constituency concerned. The Election
,Commission of India nominates or designates an officer of the
,Government or a local authority as the Returning Officer for each
,of the assembly and parliamentary constituencies in consultation
,with the State Government / Union Territory Administration. In
,"addition, the Election Commission of India also appoints one or"
,more Assistant Returning Officers for each of the assembly and
,Parliamentary constituencies to assist the Returning Officer in the
,performance of his functions in connection with the conduct of
,elections.
,
,Electoral Registration Officer (ERO)
,The Electoral Registration Officer is responsible for the
,preparation of electoral rolls for a Parliamentary / assembly
,"constituency. The Election Commission of India, in consultation"
,"with the state / UT government, appoints an officer of the"
,government or the local authorities as the Electoral Registration
,"Officer. In addition, the Election Commission of India also appoints"
,one or more Assistant Electoral Registration Officers to assist the
,Electoral Registration Officer in the performance of his functions in
,the matter of preparation / revision of electoral rolls.
,
,Presiding Officer
,The Presiding Officer with the assistance of polling officers
,conducts the poll at a polling station. The District Election Officer
,appoints the Presiding Officers and the Polling Officers. In the
,"case of Union Territories, such appointments are made by the"
,Returning Officers.
,
,Observers
,The Election Commission of India nominates officers of
,Government as Observers for Parliamentary and Assembly
,Constituencies. These observers are of various kinds6 :
,1. General Observers: The Commission deploys General
,Observers in adequate number to ensure smooth conduct of
,elections. These Observers are asked to keep a close watch
,on every stage of the electoral process to ensure free and
,fair elections.
,2. Expenditure Observers: Expenditure Observers from
,Central Government Services are appointed to keep a close
,watch on election expenditure of the candidates and to
,ensure that no inducement is offered to the electors during
,the entire election process for exercise of their franchise.
,3. Police Observers: The Commission deploys IPS officers as
,"Police Observers at State and District levels, depending"
,"   upon the sensitivity of the Constituency, wherever required."
,"They monitors all activities relating to force deployment, law"
,and order situation and co-ordinate between the Civil and
,Police administration to ensure free and fair election.
,4. Awareness Observers: For the first time in the 16th Lok
,"Sabha Elections (2014), the Commission deployed Central"
,Awareness Observers to oversee the efficient and effective
,"management of the electoral process at the field level,"
,mainly in respect of voter awareness and facilitation.
,Awareness Observers are deployed to observe the
,interventions undertaken by the election machinery to bridge
,the gap in people’s participation in the electoral process
,particularly in regard to voters’ turnout. They also monitors
,the various media related aspects of RP Act 1951 and
,observe the mechanism directed by the Commission at
,District levels on checking the problem of ‘Paid News’.
,"5. Micro Observers: In addition to General Observers, the"
,Commission also deploys Micro Observers to observe the
,poll proceedings on the poll day in selected critical polling
,stations. They are chosen from Central Government /
,Central PSUs officials. Micro-Observers verify the BMF at
,the Polling stations and certify the same before start of
,polling. They observe the proceedings at the Polling Stations
,on the poll day right from the mock poll to the completion of
,poll and the process of sealing of EVMs and other
,documents to ensure that all instructions of the Commission
,are complied with by the Polling Parties and the Polling
,Agents. They also report to the General Observers directly
,"about vitiation of the poll proceedings, if any, in their allotted"
,Polling Stations.
,6. Assistant Expenditure Observers: In addition to
,"Expenditure Observers, Assistant Expenditure Observers"
,are appointed for each Assembly segment to ensure that all
,major election campaign events are videographed and
,complaints of electoral malpractices are promptly attended.
, ELECTION PROCESS7
,
,Time of Elections
,Elections for the Lok Sabha and every state Legislative Assembly
,"have to take place every five years, unless called earlier. The"
,President can dissolve Lok Sabha and call a General Election
,"before five years is up, if the Government can no longer command"
,"the confidence of the Lok Sabha, and if there is no alternative"
,government available to take over.
,
,Schedule of Elections
,"When the five-year limit is up, or the legislature has been"
,"dissolved and new elections have been called, the Election"
,Commission puts into effect the machinery for holding an election.
,The Constitution states that there can be no longer than six
,months between the last session of the dissolved Lok Sabha and
,"the recalling of the new House, so elections have to be concluded"
,before then.
,The Commission normally announces the schedule of elections
,in a major press conference a few weeks before the formal
,process is set in motion. The Model Code of Conduct for guidance
,of candidates and political parties comes immediately into effect
,after such announcement.
,The formal process for the elections starts with the Notification
,or Notifications calling upon the electorate to elect Members of a
,"House. As soon as Notifications are issued, candidates can start"
,filing their nominations in the constituencies from where they wish
,to contest. These are scrutinised by the Returning Officer of the
,constituency concerned after the last date for the same is over
,after about a week. The validly nominated candidates can
,withdraw from the contest within two days from the date of
,scrutiny. Contesting candidates get at least two weeks for political
,campaign before the actual date of poll.
,On account of the vast magnitude of operations and the
,"massive size of the electorate, polling is held on a number of days"
,for the national elections. A separate date for counting is fixed and
,the results declared for each constituency by the concerned
,Returning Officer.
,The Commission compiles the complete list of members
,elected and issues an appropriate Notification for the due
,"constitution of the House. With this, the process of elections is"
,"complete and the President, in case of the Lok Sabha, and the"
,"Governors of the concerned states, in case of State Assemblies,"
,can then convene their respective Houses to hold their sessions.
,
,Oath or Affirmation
,It is necessary for a candidate to make and subscribe an oath or
,affirmation before an officer authorised by the Election
,"Commission. For any particular election, the authorised persons"
,"are, principally, the Returning Officer and the Assistant Returning"
,Officer for the constituency. In the case of a candidate confined in
,"a prison or under preventive detention, the superintendent of the"
,prison or commandant of the detention camp in which he is so
,confined or is under such detention is authorised to administer the
,oath. And in the case of a candidate confined to bed in a hospital
,"or elsewhere owing to illness or any other cause, the medical"
,superintendent in charge of the hospital or the medical practitioner
,attending on him is similarly authorised. If a candidate is outside
,"India, the Indian Ambassador or High Commissioner or diplomatic"
,consular authorised by him can also administer oath/affirmation.
,"The candidate, in person, is required to make the oath or"
,affirmation immediately after presenting his nomination papers
,and in any case not later than the day previous to the date of the
,scrutiny8 .
,
,Election Campaign
,The campaign is the period when the political parties put forward
,their candidates and arguments with which they hope to persuade
,people to vote for their candidates and parties. Candidates are
,given a week to put forward their nominations. These are
,scrutinised by the Returning Officers and if not found to be in
,order can be rejected after a summary hearing. Validly nominated
,candidates can withdraw within two days after nominations have
,been scrutinised. The official campaign lasts at least two weeks
,"from the drawing up of the list of nominated candidates, and"
,officially ends 48 hours before polling closes.
,"During the election campaign, the political parties and"
,contesting candidates are expected to abide by a Model Code of
,Conduct evolved by the Election Commission on the basis of a
,consensus among political parties. The model code lays down
,broad guidelines as to how the political parties and candidates
,should conduct themselves during the election campaign. It is
,"intended to maintain the election campaign on healthy lines, avoid"
,clashes and conflicts between political parties or their supporters
,and to ensure peace and order during the campaign period and
,"thereafter, until the results are declared. The model code also"
,prescribes guidelines for the ruling party either at the Centre or in
,the state to ensure that a level field is maintained and that no
,cause is given for any complaint that the ruling party has used its
,official position for the purposes of its election campaign9 .
,"Once an election has been called, parties issue manifestos"
,detailing the programmes they wish to implement if elected to
,"government, the strengths of their leaders, and the failures of"
,opposing parties and their leaders. Slogans are used to
,"popularise and identify parties and issues, and pamphlets and"
,posters distributed to the electorate. Rallies and meetings where
,"the candidates try to persuade, cajole and enthuse supporters,"
,"and denigrate opponents, are held throughout the constituencies."
,"Personal appeals and promises of reform are made, with"
,candidates travelling the length and breadth of the constituency to
,try to influence as many potential supporters as possible.
,
,Polling Days
,Polling is normally held on a number of different days in different
,"constituencies, to enable the security forces and those monitoring"
,the election to keep law and order and ensure that voting during
,the election is fair.
,
,Ballot Papers and Symbols
,"After nomination of candidates is complete, a list of competing"
,"candidates is prepared by the Returning Officer, and ballot papers"
,are printed. Ballot papers are printed with the names of the
,candidates (in languages set by the Election Commission) and the
,symbols allotted to each of the candidates. Candidates of
,recognised parties are allotted their party symbols.
,
,Voting Procedure
,Voting is by secret ballot. Polling stations are usually set up in
,"public institutions, such as schools and community halls. To"
,"enable as many electors as possible to vote, the officials of the"
,Election Commission try to ensure that there is a polling station
,"within two kilometres of every voter, and that no polling stations"
,should have to deal with more than 1500 voters. Each polling
,station is open for at least eight hours on the day of the election.
,"On entering the polling station, the elector is checked against"
,"the electoral roll10 , and allocated a ballot paper. The elector votes"
,by marking the ballot paper with a rubber stamp on or near the
,"symbol of the candidate of his choice, inside a screened"
,compartment in the polling station. The voter then folds the ballot
,paper and inserts it in a common ballot box which is kept in full
,view of the Presiding Officer and polling agents of the candidates.
,This marking system eliminates the possibility of ballot papers
,being surreptitiously taken out of the polling station or not being
,put in the ballot box.
,"Since 1998, the Commission has increasingly used Electronic"
,"Voting Machines (EMVs) instead of ballot boxes. In 2003, all state"
,elections and by elections were held using EVMs. Encouraged by
,"this, the Commission took a historic decision to use only EVMs for"
,the Lok Sabha election in 2004. More than 1 million EVMs were
,used in this election.
,
,Electronic Voting Machine
,An Electronic Voting Machine (EVM) is a simple electronic device
,used to record votes in place of ballot papers and boxes which
,were used earlier in conventional voting system. The advantages
,of the EVM over the traditional ballot paper / ballot box system are
,given here:
,"(i) It eliminates the possibility of invalid and doubtful votes which,"
,"in many cases, are the root causes of controversies and"
,election petitions.
,(ii) It makes the process of counting of votes much faster than
,the conventional system.
,(iii) It reduces to a great extent the quantity of paper used thus
,saving a large number of trees making the process eco-
,friendly.
,(iv) It reduces cost of printing (almost nil) as only one sheet of
,ballot paper is required for each Polling Station11 .
,
,Supervising Elections
,The Election Commission appoints a large number of Observers
,"to ensure that the campaign is conducted fairly, and that people"
,are free to vote as they choose. Election expenditure Observers
,keeps a check on the amount that each candidate and party
,spends on the election.
,
,Counting of Votes
,"After the polling has finished, the votes are counted under the"
,supervision of Returning Officers and Observers appointed by the
,"Election Commission. After the counting of votes is over, the"
,"Returning Officer declares the name of the candidate, to whom"
,"the largest number of votes have been given, as the winner and"
,as having been returned by the constituency to the concerned
,House.
,Elections to the Lok Sabha are carried out using a first-past-
,the-post electoral system. The country is split up into separate
,"geographical areas, known as constituencies, and the electors"
,"can cast one vote each for a candidate, the winner being the"
,candidate who gets the maximum votes.
,Elections to the State Assemblies are carried out in the same
,"manner as for the Lok Sabha election, with the states and union"
,"territories divided into single-member constituencies, and the first-"
,past-the-post electoral system used.
,
,Media Coverage
,In order to bring as much transparency as possible to the electoral
,"process, the media are encouraged and provided with facilities to"
,"cover the election, although subject to maintaining the secrecy of"
,the vote. Media persons are given special passes to enter polling
,stations to cover the poll process and the counting halls during the
,actual counting of votes.
,Election Petitions
,Any elector or candidate can file an election petition if he or she
,thinks there has been malpractice during the election. An election
,"petition is not an ordinary civil suit, but treated as a contest in"
,which the whole constituency is involved. Election petitions are
,"tried by the High Court of the state involved, and if upheld can"
,even lead to the restaging of the election in that constituency.
,
,Table 71.1 Results of Lok Sabha Elections
,General         Elective Seats    Seats won by Parties (Major)
,Elections
,(Year)
,"First (1952)         489          Congress 364, Communist 16,"
,"Socialist 12, KMPP 9, Jana"
,Sangh 3.
,"Second               494          Congress 371, Communist 27,"
,"(1957)                            Praja Socialist 19, Jana Sangh"
,4
,"Third (1962)         494          Congress 361, Communist 29,"
,"Swatantra 18, Jana Sangh 14,"
,"Praja Socialist 12, Socialists 6."
,"Fourth               520          Congress 283, Swatantra 44,"
,"(1967)                            Jana Sangh 35, CPI 23, CPM"
,"19, Sanyukta Socialist 23, Praja"
,Socialist 13.
,"Fifth (1971)         518          Congress 352, CPM 25, CPI"
,"24, DMK 23, Jana Sangh 21,"
,"Swatantra 7, Socialist 5."
,"Sixth (1977)         542          Janata 298, Congress 154,"
,"CPM 22, CPI 7, AIADMK 18."
,"Seventh              542          Congress 353, Janata (Secular)"
,"(1980)                            41, Janata 31, CPM 36, CPI 11,"
,DMK 16.
,"Eight (1984)         542          Congress 415, TDP 28, CPM"
,"22, CPI 6, Janata 10, AIADMK"
,"                     12, BJP 2."
,"Ninth (1989)   543   Congress 197, Janata Dal 141,"
,"BJP 86, CPM 32, CPI 12,"
,"AIADMK 11, TDP 2."
,"Tenth (1991)   543   Congress 232, BJP 119, Janata"
,"Dal 59, CPM 35, CPI 13, TDP"
,"13, AIADMK 11."
,"Eleventh       543   BJP 161, Congress 140, Janata"
,"(1996)               Dal 46, CPM 32, TMCM 20,"
,"DMK 17, SP 17, TDP 16, SS"
,"15, CPI 12, BSP 11."
,"Twelfth        543   BJP 182, Congress 141, CPM"
,"(1998)               32, AIADMK 18, TDP 12, SP"
,"20, Samata 12, RJD 17."
,"Thirteenth     543   BJP 182, Congress 114, CPM"
,"(1999)               33, TDP 29, SP 26, JD (U) 20,"
,"SS 15, BSP 14, DMK 12, BJD"
,"10, AIADMK 10."
,"Fourteenth     543   Congress 145, BJP 138, CPM"
,"(2004)               43, SP 36, RJD 24, BSP 19,"
,"DMK 16, Shiv Sena 12, BJD 11,"
,CPI 10.
,"Fifteenth      543   Congress 206, BJP 116, SP 23,"
,"(2009)               BSP 21, JD(U) 20, Trinamool"
,"19, DMK 18, CPM 16, BJD 14,"
,"Shiv Sena 11, NCP 9, AIADMK"
,"9, TDP 6, RLD 5, CPI 4, RJD 4,"
,SAD 4.
,"Sixteenth      543   BJP 282, Congress 44,"
,"(2014)               AIADMK 37, Trinamool 34, BJD"
,"20, Shiv Sena 18, TDP 16, TRS"
,"11, CPM 9, YSR Congress 9,"
,"NCP 6, LJP 6, SP 5, AAP 4,"
,"RJD 4, SAD 4."
,"Seventeenth    543   BJP 303, Congress 52, DMK"
,"(2019)                          23, Trinamool 22, YSR"
,"Congress 22, Shiv Sena 18, JD"
,"(U) 16, BJD 12, BSP 10, TRS"
,"9, LJP 6, NCP 5, SP 5."
,
,Table 71.2 Prime Ministers after each Lok Sabha General
,Election
,General      National Parties         Prime Minister
,Elections
,(Year)
,"First (1952*) BJS, BPI, CPI, FBL      Jawaharlal Nehru (15th"
,"(MG), FBL (RG), HMS,    August, 1947 to 27, May,"
,"INC, KLP, KMPP, RCPI,   1964)"
,"RRP, RSP, SCF, SP"
,"Second       BJS, CPI, INC, PSP       -do-"
,(1957)
,"Third (1962) CPI, INC, BJS, PSP,      -do-"
,"SSP, SWA"
,Gulzari Lal Nanda (27th
,"May 1964 to 9th June,"
,1964)
,Lal Bahadur Shastri (9th
,"June, 1964 to 11th"
,January 1966)
,Gulzari Lal Nanda (11th
,January 1966 to 24th
,"January, 1966)"
,"Fourth       BJS, CPI, CPM, INC,      Mrs. Indira Gandhi (24th"
,"(1967)       PSP, SSP, SWA            January 1966 to 24th"
,March 1977)
,"Fifth (1971) BJS, CPI, CPM, INC,      -do-"
,"NCO, PSP, SSP, SWA"
,"Sixth (1977) BLD, CPI, CPM, INC,      Morarji Desai (24th"
,"NCO                      March, 1977 to 28th July,"
,                                      1979)
,Charan Singh (28th July
,1979 to 14th January
,1980)
,"Seventh      CPI, CPM, INC (I), INC   Mrs. Indira Gandhi (14th"
,"(1980)       (U), JNP, JNP (S)        January 1980 to 31st"
,"October, 1984)"
,"Eighth       BJP, CPI, CPM, ICS,      Rajiv Gandhi (31st"
,"(1984)       INC, JNP, LKD            October, 1984 to 2nd"
,"December, 1989)"
,"Ninth (1989) BJP, CPI, CPM, ICS       Vishwanath Pratap Singh"
,"(SCS), INC, JD, JNP      (2nd December, 1989 to"
,"(JP), LKD (B)            10th November, 1990)"
,Chandra Shekhar (10th
,"November, 1990 to 21st"
,"June, 1991)"
,"Tenth (1991) BJP, CPI, CPM, ICS       P.V. Narasimha Rao"
,"(SCS), INC, JD, JD(S),   (21st June 1991 to 16th"
,"JP, LKD                  May 1996)"
,"Eleventh     AIIC (T), BJP, CPI, CPM, Atal Bihari Vajpayee"
,"(1996)       INC, JD, JP, SAP         (16th May 1996 to 1st"
,"June, 1996)"
,H.D. Deve Gowda (1st
,"June, 1996 to 21st April"
,1997)
,Inder Kumar Gujral (21st
,"April, 1997 to 19th"
,"March, 1998)"
,"Twelfth      BJP, BSP, CPI, CPM,      Atal Bihari Vajpayee"
,"(1998)       INC, JD, SAP             (19th March, 1998 to"
,"22nd May, 2004)"
,"Thirteenth   BJP, BSP, CPI, CPM,      -do-"
,"(1999)       INC, JD(S), JD(U)"
,"Fourteenth   BJP, BSP, CPI, CPM,      Dr. Man Mohan Singh"
,"(2004)         INC, NCP                (22nd May 2004 to 22nd"
,May 2009)
,"Fifteenth      BJP, BSP, CPI, CPM,     Dr. Man Mohan Singh"
,"(2009)         INC, NCP, RJD           (22nd May 2009 to 26th"
,May 2014)
,"Sixteenth      BJP, BSP, CPI, CPM,     Narendra Modi (26th"
,"(2014)         INC, NCP                May 2014 to 30th May"
,2019)
,"Seventeenth BSP, BJP, CPI, CPM,        Narendra Modi (30th"
,"(2019)      INC, NCP, AITC             May 2019 to till date)"
,* There were 14 recognised parties on all-India basis during 1952
,"elections. After the first general election, 4 parties were"
,"recognized as national parties (Indian National Congress, Praja"
,"Socialist Party, Communist Party of India and All India Bhartiya"
,Jan Sangh) in 1953.
,"Source: Electoral Statistics - Pocket Book (2015), Election"
,"Commission of India, pp. 118–120."
,
,Table 71.3 Participation in Lok Sabha Elections
,General        Number of Electorate Voter Turn- Number of
,Elections      Candidates (Million)      out     Polling
,(Year)                              (Percentage) Stations
,"First (1952)      1,874      173.21        45.7        1,96,084"
,"Second            1,519      193.65       45.74        2,20,478"
,(1957)
,"Third (1962)      1,985      217.68       55.42        2,38,244"
,"Fourth            2,369      274.60       61.33        2,67,255"
,(1967)
,"Fifth (1971)      2,784      274.09       55.29        3,42,944"
,"Sixth (1977)      2,439      321.17       60.49        3,58,208"
,"Seventh           4,462      363.94       56.92        4,34,442"
,(1980)
,"Eighth            5,493      400.10        64.1        5,05,751"
,(1984)
,"Ninth (1989)      6,160    499.00         62.0      5,89,449"
,"Tenth (1991)      8,699    514.00         61.0      5,94,797"
,"Eleventh          13,952   592.57         57.94     7,66,462"
,(1996)
,"Twelfth           4,750    605.58         61.97     7,73,494"
,(1998)
,"Thirteenth        4,648    605.88         59.99     7,75,000"
,(1999)
,"Fourteenth        5,435    671.00         57.86     6,87,402"
,(2004)
,"Fifteenth         8,070    713.77         58.4      8,34,944"
,(2009)
,"Sixteenth         8,251    834.08         66.44     9,27,553"
,(2014)
,"Seventeenth       8,026    910.51         67.4     10,36,295"
,(2019)
,
,Table 71.4 Women in Lok Sabha Elections
,General Elections (Year)     Contested            Elected
,First (1952)                        –               22
,Second (1957)                       45              27
,Third (1962)                        70              34
,Fourth (1967)                       67              31
,Fifth (1971)                        86              22
,Sixth (1977)                        70              19
,Seventh (1980)                   142                28
,Eighth (1984)                    164                44
,Ninth (1989)                     198                27
,Tenth (1991)                     325                39
,Eleventh (1996)                  599                40
,Twelfth (1998)                    274              43
,Thirteenth (1999)                 284              49
,Fourteenth (2004)                 355              45
,Fifteenth (2009)                  556              59
,Sixteenth (2014)                  668              62
,Seventeenth (2019)                724              78
,
,Table 71.5 Cost of Lok Sabha Elections
,General Elections (Year)          Cost Borne by Election
,Commission (₹ In Crores)
,First (1952)                              10.45
,Second (1957)                              5.90
,Third (1962)                               7.81
,Fourth (1967)                             10.95
,Fifth (1971)                              14.43
,Sixth (1977)                              29.81
,Seventh (1980)                            37.07
,Eighth (1984)                             85.51
,Ninth (1989)                             154.22
,Tenth (1991)                             359.10
,Eleventh (1996)                          597.34
,Twelfth (1998)                           626.40
,Thirteenth (1999)                        900.00
,Fourteenth (2004)                        1100.00
,Fifteenth (2009)                         1483.00
,Sixteenth (2014)                         3426.00
,Seventeenth (2019)                         N.A.
,Table 71.6 Largest and Smallest (Area-wise) Lok Sabha
,Constituencies in Fourteenth General Elections (2004)
,Sl. Constituency                State/UT            Area (sq.
,No.                                                 km)
,I. Largest
,Constituencies
,1.   Ladakh                    Jammu & Kashmir 173266.37
,2.   Barmer                    Rajasthan           71601.24
,3.   Kutch                     Gujarat             41644.55
,4.   Arunachal West            Arunachal Pradesh 40572.29
,5.   Arunachal East            Arunachal Pradesh 39749.64
,II. Smallest
,Constituencies
,1.   Chandni Chowk             NCT of Delhi        10.59
,2.   Kolkata North West        West Bengal         13.23
,3.   Mumbai South              Maharashtra         13.73
,4.   Mumbai South Central      Maharashtra         18.31
,5.   Delhi Sadar               NCT of Delhi        28.09
,
,Table 71.7 Largest and Smallest (Electors-wise) Lok Sabha
,Constituencies in Sixteenth General Elections (2014)
,Sl. Constituency                  State / UT        Total No.
,No.                                                 of
,Electors
,I. Largest Constituencies
,"1.   Malkajgiri                  Telangana         29,53,915"
,"2.   Ghaziabad                   Uttar Pradesh     22,63,961"
,"3.   Bangalore North             Karnataka         22,29,063"
,"4.   Unnao                       Uttar Pradesh     21,10,388"
,"5.   North West Delhi            NCT of Delhi      20,93,922"
,        II. Smallest
,Constituencies
,"1.    Lakshadweep                  Lakshadweep         47,972"
,"2.    Daman & Diu                  Daman & Diu         1,02,260"
,"3.    Ladakh                       Jammu &             1,59,949"
,Kashmir
,"4.    Dadra & Nagar Haveli         Dadra & Nagar       1,88,783"
,Haveli
,"5.    Andaman & Nicobar Islands Andaman &              2,57,856"
,Nicobar Islands
,
,Table 71.8 Articles Related to Elections at a Glance
,Article No.    Subject-matter
,"324.       Superintendence, direction and control of"
,elections to be vested in an Election
,Commission
,"325.       No person to be ineligible for inclusion in, or to"
,"claim to be included in a special, electoral roll"
,"on grounds of religion, race, caste or sex"
,326.       Elections to the House of the People and to the
,Legislative Assemblies of states to be on the
,basis of adult suffrage
,327.       Power of Parliament to make provision with
,respect to elections to Legislatures
,328.       Power of Legislature of a state to make
,provision with respect to elections to such
,Legislature
,329.       Bar to interference by courts in electoral
,matters
,329A.      Special provision as to elections to Parliament
,in the case of Prime Minister and Speaker
,(Repealed)
,NOTES AND REFERENCES
,1. There is a separate state election commission to deal
,with elections to the panchayats and municipalities in
,the state.
,"2. For complete details regarding Election Commission,"
,see Chapter 42.
,3. The 61st Amendment Act of 1988 has reduced the
,voting age from 21 to 18 years. This came into force on
,"March 28, 1989."
,"4. For more details in this regard, see ‘universal adult"
,franchise’ in Chapter 3.
,5. L. Chandra Kumar v. Union of India (1997). Clause 3(d)
,of Article 323 B was declared as unconstitutional.
,6. Handbook for Media - General Elections to the 16th Lok
,"Sabha (2014), Election Commission of India, pp. 111–"
,113
,7. This information is downloaded from the website of the
,Election Commission of India.
,"8. General Elections 2009: Reference Handbook, Press"
,"Information Bureau, Government of India, p. 189."
,9. The Model Code of Conduct was agreed to by all the
,political parties in 1968. The Election Commission first
,effectively put to use the Model Code of Conduct in the
,year 1991 to ensure fair elections and a level playing
,field.
,10. The electoral roll is a list of all people in the
,constituency who are registered to vote in Indian
,elections. Only those people with their names on the
,electoral roll are allowed to vote. The electoral roll is
,normally revised every year to add the names of those
,who are to turn 18 on the 1st January of that year or
,have moved into a constituency and to remove the
,names of those who have died or moved out of a
,constituency.
,"11. General Elections 2009: Reference Handbook, Press"
,"Information Bureau, Government of India, p. 181."
, 72       Election Laws
,
,
,"REPRESENTATION OF THE PEOPLE ACT, 1950"
,Articles 81 and 170 of the Constitution of India lay down the
,maximum number of seats in Parliament and in Legislative
,Assemblies of States and also certain principles to be followed in
,allocating seats in the House of People among the States and in
,"the State Legislative Assemblies, but have left the actual"
,allocation of such seats to be provided by the law.
,"Similarly, Article 171 of the Constitution of India lays down the"
,maximum and minimum number of seats in the Legislative
,"Council of a State, and also specify the various methods in which"
,"the seats shall be filled, but the actual number of seats to be filled"
,by each such method has been left to be provided by law.
,"Therefore, the Representation of the People Act, 1950, was"
,enacted to provide for the allocation of seats in the House of the
,People and in the Legislative Assemblies and Legislative Councils
,of States.
,The Act also sought to confer on the President the powers to
,"delimit, after consultation with the Election Commission, the"
,various constituencies for the purpose of elections to fill seats in
,the House of the People and in the Legislative Assemblies and
,Legislative Councils of States.
,The Act further provided for the registration of electors for
,Parliamentary Constituencies and for the Assembly and Council
,"Constituencies, and the qualifications and disqualifications for"
,such registration.
,"To sum-up, the Act makes the following provisions relating to"
,the elections:
,"1. Allocation of seats in the House of the People, the State"
,Legislative Assemblies and the State Legislative Councils.
,"2. Delimitation of Parliamentary, Assembly and Council"
,Constituencies.
,"3. Election officers like chief electoral officers, district election"
,"officers, electoral registration officers and so on."
,"4. Electoral rolls for Parliamentary, Assembly and Council"
,constituencies.
,5. Manner of filling seats in the Council of States to be filled by
,representatives of union territories.
,6. Local authorities for purposes of elections to the State
,Legislative Councils.
,7. Barring the jurisdiction of civil courts.
," REPRESENTATION OF THE PEOPLE ACT, 1951"
,"The Representation of the People Act, 1950 did not contain all the"
,provisions relating to elections but merely provided for the
,allocation of seats in and the delimitation of constituencies for the
,purpose of elections to the House of People and Legislatures of
,"States, the qualifications of voter at such election and the"
,preparations of electoral rolls.
,The provisions for the actual conduct of elections to the Houses
,of Parliament and to the House or Houses of the Legislature of
,"each State, the qualifications and disqualifications for the"
,"membership of these Houses, the corrupt practices and other"
,"election offences, and the decision of election disputes were all"
,left to be made in a subsequent measure. In order to provide for
,"these provisions, the Representation of the People Act, 1951 was"
,enacted.
,"Broadly speaking, this Act contains provisions relating to the"
,following electoral matters:
,1. Qualifications and disqualifications for membership of
,Parliament and State Legislatures
,2. Notification of general elections
,3. Administrative machinery for the conduct of elections
,4. Registration of political parties
,5. Conduct of elections
,6. Free supply of certain material to candidates of recognised
,political parties
,7. Disputes regarding elections
,8. Corrupt practices and electoral offences
,9. Powers of Election Commission in connection with inquiries
,as to disqualifications of members.
,10. Bye-elections and time limit for filling vacancies.
,11. Miscellaneous provisions relating to elections.
,12. Barring the jurisdiction of civil courts.
,The conduct of elections include the following matters:
,(a) Nomination of candidates
,(b) Candidates and their agents
,(c) General procedure at elections
,  (d) The poll
,(e) Counting of votes
,(f) Multiple elections
,(g) Publication of election results and nominations
,(h) Declaration of assets and liabilities
,(i) Election expenses
,The provisions of the Act with respect to disputes regarding
,elections are related to the following matters:
,(i) Presentation of election petitions to High Court
,(ii) Trial of election petitions
,(iii) Withdrawal and abatement of election petitions
,(iv) Appeals to Supreme Court
,(v) Costs and security for costs
," DELIMITATION ACT, 2002"
,
,Articles 82 and 170 of the Constitution of India provide for
,readjustment and the division of each State into territorial
,constituencies (Parliamentary constituencies and Assembly
,constituencies) on the basis of the 2001 census by such authority
,"and in such manner as Parliament may, by law, determine."
,"Further, Articles 330 and 332 of the Constitution of India"
,provide for re-fixing the number of seats reserved for the
,Scheduled Castes and the Scheduled Tribes in the House of the
,People and Legislative Assemblies of the States on the basis of
,the 2001 census.
,The present delimitation of Parliamentary and Assembly
,constituencies is based on the 1971 census. The uneven growth
,of population in different constituencies in different parts of the
,country as well as within the same State as also continuous
,migration of people / electorate from one place to other especially
,from rural areas to urban areas have resulted in strikingly differing
,sizes of electoral constituencies even within the same State.
,"Therefore, the Delimitation Act, 20021 , was enacted to set up a"
,Delimitation Commission for the purpose of effecting delimitation
,on the basis of the 2001 census so as to correct the aforesaid
,distortion in the sizes of electoral constituencies. The proposed
,Delimitation Commission would also re-fix the number of seats for
,the Scheduled Castes and the Scheduled Tribes on the basis of
,"the 2001 census, without affecting total number of seats based on"
,the 1971 census.
,The Act sought to lay down certain guidelines as to the manner
,"in which such delimitation would be undertaken. In the Act, the"
,new Delimitation Commission was given the task of carrying out
,delimitation of Parliamentary and Assembly constituencies. It had
,been specifically provided that the Delimitation Commission shall
,endeavour to complete the work within a period not later than July
,"31, 2008.2"
,The proposed delimitation would apply to every general
,election to the House of the People or to a State Legislative
,Assembly held after the final orders of the Commission are
,published and to every bye-election arising from such general
,election3 .
,OTHER ACTS RELATING TO ELECTIONS
,
,"1. Parliament (Prevention of Disqualification) Act, 19594"
,declares that certain offices of profit under the Government
,shall not disqualify the holders thereof for being chosen as
,(or for being) members of Parliament.
,2. Scheduled Castes and Scheduled Tribes Orders
,"(Amendment) Act, 1976 provides for the inclusion in, and the"
,"exclusion from, the lists of Scheduled Castes and Scheduled"
,"Tribes, of certain castes and tribes, for the readjustment of"
,representation      of     parliamentary    and     assembly
,constituencies.
,"3. Government of Union Territories Act, 1963."
,"4. Government of National Capital Territory of Delhi Act, 1991."
,"5. Presidential and Vice-Presidential Elections Act, 19525"
,regulates certain matters relating to or connected with
,elections to the offices of the President and Vice-President
,of India.
,RULES RELATING TO ELECTIONS
,
,"1. Registration of electors Rules, 19606 provide for the"
,preparation and publication of electoral rolls.
,"2. Conduct of Elections Rules, 19617 facilitates conduct of fair"
,and free elections to the Parliament and State Legislatures.
,"3. Prohibition of Simultaneous Membership Rules, 1950."
,4. Members of Lok Sabha (Disqualification on Ground of
,"Defection) Rules, 1985."
,5. Members of Rajya Sabha (Disqualification on Ground of
,"Defection) Rules, 1985."
,"6. Presidential and Vice-Presidential Elections Rules, 1974.8"
,7. Members of Lok Sabha (Declaration of Assets and
,"Liabilities) Rules, 2004."
,8. Members of Rajya Sabha (Declaration of Assets and
,"Liabilities) Rules, 2004."
,ORDERS RELATING TO ELECTIONS
,
,"1. Election Symbols (Reservation and Allotment) Order, 1968"
,"provides for the specification, reservation, choice and"
,allotment of symbols at elections in parliamentary and
,"assembly constituencies, for the recognition of political"
,parties in relation thereto.
,2. Registration of Political Parties (Furnishing of Additional
,"Particulars) Order, 1992 provides for furnishing of additional"
,particulars by associations or bodies of individual citizens of
,India seeking registration as a political party with the
,Election Commission of India.
,
,
,NOTES AND REFERENCES
,"1. The Delimitation Act (2002) was amended in 2003,"
,2008 and 2016.
,"2. Originally, the Act provided for a period of two years."
,"3. Earlier, the Delimitation Acts were enacted in 1952,"
,1962 and 1972.
,"4. This Act repealed the three earlier Acts, namely, the"
,"Parliament (Prevention of Disqualification) Act, 1950;"
,"the Parliament (Prevention of Disqualification Act, 1951;"
,and the Prevention of Disqualification (Parliament and
,"Part C States Legislatures) Act, 1953."
,"5. This Act was amended in 1974, 1977 and 1997."
,"6. Earlier, the Rules in this regard were made in 1950 and"
,1956. Both the earlier Rules were known by the same
,"nomenclature i.e., the Representation of the People"
,(Preparation of Electoral Rolls) Rules.
,"7. Earlier, the Rules in this regard were made in 1951 and"
,1956. Both the earlier Rules were known by the same
,"nomenclature i.e., the Representation of the People"
,(Conduct of Elections and Election Petitions) Rules.
,8. These Rules repealed the earlier Presidential and Vice-
,"Presidential Elections Rules, 1952."
, 73      Electoral Reforms
,
,
,COMMITTEES RELATED TO ELECTORAL REFORMS
,The various committees and commissions which have examined
,"our electoral system, election machinery as well as election"
,process and suggested reforms are mentioned here.
,1. Joint Parliamentary Committee on Amendments to Election
,Laws (1971–72).
,2. Tarkunde Committee was appointed in 1974 by Jaya
,Prakash Narayan (JP) during his “Total Revolution”
,movement. This unofficial committee submitted its report in
,1975
,3. Dinesh Goswami Committee on Electoral Reforms (1990)1
,4. Vohra Committee on the Nexus between Crime and Politics
,(1993)
,5. Election Commission of India Recommendations on
,Electoral Reforms (1998).
,6. Indrajit Gupta Committee on State Funding of Elections
,(1998)2
,7. Law Commission of India 170th Report on Reform of the
,Electoral Laws (1999)
,8. National Commission to Review the Working of the
,Constitution (2000–2002)3. It was headed by M.N.
,Venkatachaliah.
,9. Election Commission of India Report on Proposed Electoral
,Reforms (2004).
,10. Second Administrative Reforms Commission of India Report
,on Ethics in Governance (2007). It was headed by Veerappa
,Moily.
,11. Tankha Committee (Core Committee) was appointed in 2010
,to look into the whole gamut of the election laws and
,electoral reforms.
,  12. J.S. Verma Committee Report on Amendments to Criminal
,Law (2013).
,13. Law Commission of India 244th Report on Electoral
,Disqualifications (2014).
,14. Law Commission of India 255th Report on Electoral Reforms
,(2015).
,Based on the recommendations made by the above
,"Committees and Commissions, various reforms have been"
,"introduced in our electoral system, election machinery and"
,election process. These can be studied under the following four
,heads.
,• Electoral reforms before 1996
,• Electoral reforms of 1996
,• Electoral reforms after 1996
,• Electoral reforms since 2010
, ELECTORAL REFORMS BEFORE 1996
,
,Lowering of Voting Age
,The 61st Constitutional Amendment Act of 19884 reduced the
,voting age from 21 years to 18 years for the Lok Sabha as well as
,the assembly elections. This was done in order to provide to the
,unrepresented youth of the country an opportunity to express their
,feelings and help them become a part of political process.
,
,Deputation to Election Commission
,"In 19885 , a provision was made that the officers and the staff"
,"engaged in preparation, revision and correction of electoral rolls"
,for elections are deemed to be on deputation to the Election
,"Commission for the period of such employment. These personnel,"
,"during that period, would be under the control, superintendence"
,and discipline of the Election Commission.
,
,Increase in Number of Proposers
,"In 19886 , the number of electors who are required to sign as"
,proposers in nomination papers for elections to the Rajya Sabha
,and state legislative council has been increased to 10 per cent of
,"the electors of the constituency or ten such electors, whichever is"
,less. This was done in order to prevent non-serious candidates
,from contesting frivolously.
,
,Electronic Voting Machines
,"In 19897 , a provision was made to facilitate the use of Electronic"
,Voting Machines (EVMs) in elections. The EVMs were used for
,the first time in 1998 on experimental basis in selected
,"constituencies in the elections to the Assemblies of Rajasthan,"
,Madhya Pradesh and Delhi. The EVMs were used for the first time
,in the general elections (entire state) to the Assembly of Goa in
,1999
,
,Booth Capturing
,"In 19898 , a provision was made for adjournment of poll or"
,countermanding of elections in case of booth capturing. Booth
,capturing includes: (i) seizure of a polling station and making
,polling authorities surrender ballot papers or voting machines (ii)
,taking possession of polling station and allowing only one’s own
,supporters to exercise their franchise (iii) threatening and
,preventing any elector from going to polling station and (iv)
,seizure of the place being used for counting of votes.
,
,Elector’s Photo Identity Card (EPIC)
,The use of electors’ photo identity cards by the Election
,"Commission is surely making the electoral process simple,"
,smoother and quicker. A decision was taken by the Election
,Commission in 1993 to issue photo identity cards to electors
,throughout the country to check bogus voting and impersonation
,of electors at elections. The electoral roll is the basis for issue of
,EPICs to the registered electors. The electoral rolls are normally
,revised every year with 1st January of the year as the qualifying
,date. Every Indian citizen who attain the age of 18 years or above
,as on that date is eligible for inclusion in the electoral roll and can
,"apply for the same. Once he is registered in the roll, he would be"
,"eligible for getting an EPIC. The scheme of issuing the EPICs is,"
,"therefore, a continuous and ongoing process for the completion of"
,which no time limit can be fixed as the registration of electors is a
,continuous and ongoing process (excepting for a brief period
,between the last date for filing nomination and completion of
,electoral process) on account of more number of persons
,becoming eligible for the right of franchise on attaining the age of
,18. It is the continuous effort of the Election Commission to
,provide the EPICs to the electors who have been left out in the
,previous campaigns as well as the new electors.8a
, ELECTORAL REFORMS OF 1996
,
,"In 1990, the National Front Government headed by V.P. Singh"
,appointed a committee on electoral reforms under the
,"chairmanship of Dinesh Goswami, the then Law Minister. The"
,Committee was asked to study the electoral system in detail and
,suggest measures for remedying the drawbacks within it. The
,"Committee, in its report submitted in 1990 itself, made a number"
,of proposals on electoral reforms. Some of these
,recommendations were implemented in 19969. These are
,explained here.
,
,Listing of Names of Candidates
,The candidates contesting elections are to be classified into three
,categories for the purpose of listing of their names. They are
,(i) Candidates of recognised political parties
,(ii) Candidates of registered-unrecognised political parties
,(iii) Other (independent) candidates
,Their names in the list of contesting candidates and in the ballot
,papers has to appear separately in the above order and in each
,category these have to be arranged in the alphabetical order.
,
,Disqualification for Insulting the National Honour Act
,A person who is convicted for the following offences under the
,Prevention of Insults to National Honour Act of 1971 is disqualified
,to contest in the elections to the Parliament and state legislature
,for 6 years.
,(i) Offence of insulting the National Flag
,(ii) Offence of insulting the Constitution of India
,(iii) Offence of preventing the singing of National Anthem
,
,Prohibition on the Sale of Liquor
,No liquor or other intoxicants are to be sold or given or distributed
,"at any shop, eating place, hotel or any other place whether public"
,or private within a polling area during the period of 48 hours
,ending with the hour fixed for the conclusion of poll. Any person
,who violates this rule is to be punished with imprisonment up to 6
,"months or with fine up to ₹2,000 or with both."
,Number of Proposers
,The nomination of a candidate in a Parliamentary or assembly
,constituency should be subscribed by 10 registered electors of the
,"constituency as proposers, if the candidate is not sponsored by a"
,recognised political party. In the case of a candidate sponsored by
,"a recognised political party, only one proposer is required. This"
,was done in order to discourage non-serious people from
,contesting the elections.
,
,Death of a Candidate
,"Earlier, in case of death of a contesting candidate before the"
,"actual polling, the election used to be countermanded."
,"Consequently, the election process had to start all over again in"
,"the concerned constituency. But now, the election would not be"
,countermanded on the death of a contesting candidate before the
,"actual polling. However, if the deceased candidate belonged to a"
,"recognised political party, the party concerned would be given an"
,option to propose another candidate within seven days.
,
,Time Limit for By-Elections
,"Now, by-elections are to be held within six months of occurrence"
,of the vacancy in any House of Parliament or a state legislature.
,"But, this condition is not applicable in two cases:"
,(i) Where the remainder of the term of the member whose
,vacancy is to be filled is less than one year; or
,(ii) When the Election Commission in consultation with the
,"Central Government, certifies that it is difficult to hold the by-"
,elections within the said period.
,
,Holiday to Employees on the Polling Day
,"The registered voters employed in any trade, business, industry or"
,any other establishment are entitled to a paid holiday on the
,polling day. This rule applies even to the daily wagers. Any
,employer who violates this rule is to be punished with a fine up to
,"₹500. However, this rule is not applicable in the case of a voter"
,whose absence may cause danger or substantial loss in respect
,of the employment in which he is engaged.
,
,Contestants Restricted to Two Constituencies
,A candidate would not be eligible to contest from more than two
,Parliamentary or assembly constituencies at a general election or
,at the by-elections which are held simultaneously. Similar
,restrictions are imposed for biennial elections and by-elections to
,the Rajya Sabha and the state legislative councils.
,
,Prohibition of Arms
,Entering into the neighbourhood of a polling station with any kind
,of arms10 is to be considered a cognizable offence. Such an act is
,punishable with imprisonment of up to two years or with fine or
,"with both. Further, the arms found in possession of the offender"
,are to be confiscated and the related licence is to be cancelled.
,"But, these provisions are not applicable to the returning officer,"
,"presiding officer, any police officer or any other person appointed"
,to maintain peace and order at the polling station.
,
,Effective Campaigning Period Reduced
,The minimum gap between the last date for withdrawal of
,candidature and the polling date has been reduced from 20 to 14
,days.
, ELECTORAL REFORMS AFTER 1996
,
,Presidential and Vice Presidential Elections
,"In 199711 , the number of electors as proposers and seconders for"
,contesting election to the office of the President was increased
,from 10 to 50 and to the office of the Vice President from 5 to 20.
,"Further, the amount of security deposit was increased from ₹2,500"
,"to ₹15,000 for contesting election to both the offices of President"
,and Vice-President to discourage frivolous candidates.
,
,Requisitioning of Staff for Election Duty
,"In 199812 , a provision was made whereby the employees of local"
,"authorities, nationalised banks, universities, LIC, government"
,undertakings and other government-aided institutions can be
,requisitioned for deployment on election duty.
,
,Voting through Postal Ballot
,"In 199913 , a provision was made for voting by certain classes of"
,"persons through postal ballot. Thus, any class of persons can be"
,"notified by the Election Commission, in consultation with the"
,"government, and the persons belonging to such notified class can"
,"give their votes by postal ballot, and not in any other manner, at"
,elections in their constituency or constituencies.
,
,Facility to Opt to Vote Through Proxy
,"In 200314 , the facility to opt to vote through proxy was provided to"
,the service voters belonging to the Armed Forces and members
,belonging to a Force to which provisions of the Army Act apply.
,Such service voters who opt to vote through proxy have to appoint
,a proxy in a prescribed format and intimate the Returning Officer
,of the constituency.
,
,"Declaration of Criminal Antecedents, Assets, etc., by"
,Candidates
,"In 2003, the election Commission issued an order15 directing"
,every candidate seeking election to the Parliament or a State
,Legislature to furnish on his nomination paper the information on
,the following matters.
,(i) Whether the candidate has been convicted or acquitted or
,discharged in any criminal offence in the past? Whether
,he/she was imprisoned or fined?
,"(ii) Prior to six months of filing nomination, whether the candidate"
,"is accused in any pending case, of any offence punishable"
,"with imprisonment for two years or more, and in which"
,charges were framed or cognizance was taken by a court; if
,"so, the details thereof"
,"(iii) The assets (immovable, movable, bank balances, etc.) of a"
,candidate and his/ her spouse and that of dependents
,"(iv) Liabilities, if any, particularly whether there are any dues of"
,any public financial institution or government dues
,(v) The educational qualifications of the candidate
,Furnishing of any false information in the affidavit is now an
,electoral offence punishable with imprisonment upto six months or
,fine or both.
,
,Changes in Rajya Sabha Elections:
,"In 2003, the following two changes were introduced with respect"
,to elections to the Rajya Sabha16 :
,(i) Domicile or residency requirement of a candidate contesting
,"an election to the Rajya Sabha was removed. Prior to this, a"
,candidate had to be an elector in the state from where he was
,"to be elected. Now, it would be sufficient if he is an elector in"
,any parliamentary constituency in the country.
,"(ii) Introducing open ballot system, instead of secret ballot"
,"system, for elections to the Rajya Sabha. This was done to"
,curb cross-voting and to wipe out the role of money power
,"during Rajya Sabha elections. Under the new system, an"
,elector belonging to a political party has to show the ballot
,paper after marking his vote to a nominated agent of that
,political party.
,
,Exemption of Travelling Expenditure
,"As per a provision of 200317 , the traveling expenditure incurred"
,by the campaigning leaders of a political party shall be exempted
,from being included in the election expenses of the candidate.
,
,"Free Supply of Electoral Rolls, etc."
,"According to a 2003 provision18 , the Government should supply,"
,"free of cost, the copies of the electoral rolls and other prescribed"
,material to the candidates of recognised political parties for the
,"Lok Sabha and Assembly elections. Further, the Election"
,Commission should supply specified items to the voters in the
,constituencies concerned or to the candidates set up by the
,recognised political parties.
,
,Parties Entitled to Accept Contribution
,"In 200319 , the political parties were entitled to accept any amount"
,of contribution from any person or company other than a
,government company. They have to report any contribution in
,"excess of ₹20,000 to the Election Commission for making any"
,"claim to any income tax relief. Besides, the companies would get"
,income tax exemption on the amount contributed.
,
,Allocation of Time on Electronic Media
,"Under a 2003 provision20 , the Election Commission should"
,allocate equitable sharing of time on the cable television network
,and other electronic media during elections to display or
,propagate any matter or to address public. This allocation would
,be decided on the basis of the past performance of a recognised
,political party.
,
,Introduction of Braille Signage Features in EVMs
,The Commission received representations from the various
,associations of visually impaired persons for introduction of Braille
,signage features in the EVMs to facilitate the visually impaired
,voters to cast their votes without the help of attendant. The
,Commission considered the proposal in detail and tried the Braille
,signage feature in the EVMs during the bye-election to the
,Asifnagar Assembly Constituency of Andhra Pradesh held in
,"2004. In 2005, it was tried in one of the constituency during the"
,"Assembly elections of Bihar, Jharkhand and Haryana. In 2006, it"
,"was tried in one of the constituency of the States of Assam, West"
,"Bengal, Tamil Nadu, Puducherry and Kerala during Assembly"
,"elections. In 2008, it was tried in all the assembly constituencies"
,of NCT of Delhi during Assembly elections.
,The Commission introduced similar Braille signage features on
,the Electronic Voting Machines during the General Elections to the
,Fifteenth Lok Sabha (2009) and simultaneous Assembly elections
,in some States.20a
, ELECTORAL REFORMS SINCE 2010
,
,Restrictions Imposed on Exit Polls
,"According to a 2009 provision21 , conducting exit polls and"
,publishing results of exist polls would be prohibited during the
,"election to Lok Sabha and State Legislative Assemblies. Thus, no"
,person shall conduct any exit poll and publish or publicise by
,means of the print or electronic media or disseminate in any other
,"manner, the result of any exit poll during the period notified by the"
,"Election Commission in this regard. Further, any person who"
,contravenes this provision shall be punishable with imprisonment
,of upto two years or with fine or with both.
,“Exit-poll” is an opinion survey regarding how electors have
,voted at an election or how all the electors have performed with
,regard to the identification of a political party or candidate in an
,election.
,
,Time-Limit for Submitting a Case for Disqualification
,"In 200922 , a provision was made for the simplification of the"
,procedure for disqualification of a person found guilty of corrupt
,practices. It provided for a three-month time-limit within which the
,specified authority will have to submit the case of a person found
,guilty of corrupt practice to the President for determination of the
,question of disqualification.
,
,All Officials Included in Corrupt Practice
,"In 200923 , a provision was made for the inclusion of all officials,"
,"whether in the government service or not, appointed or deputed"
,by the Election Commission in connection with the conduct of
,"elections, within the scope of corrupt practice of obtaining any"
,assistance by a candidate for the furtherance of the prospects of
,his election.
,
,Increase in Security Deposit
,"In 200924 , the amount of security deposit to be paid by the"
,candidates contesting elections to the Lok Sabha was increased
,"from ₹10,000 to ₹25,000 for the general candidates and from"
,"₹5,000 to ₹12,500 for SC and ST candidates. Similarly, the"
,security deposit in the case of elections to the state legislative
,"assembly was increased from ₹5,000 to ₹10,000 for the general"
,"candidates and from ₹2,500 to ₹5,000 for the SC and ST"
,candidates. This was done in order to check the multiplicity of
,non-serious candidates.
,
,Appellate Authority within the District
,"In 200925 , a provision was made for appointment of an appellate"
,authority within the district against the orders of the Electoral
,"Registration Officers, instead of the Chief Electoral Officer of the"
,"state. Thus, an appeal against any order of the Electoral"
,Registration Officer of a constituency (during continuous updation
,of the electoral roll) will now lie before the District Magistrate or
,Additional District Magistrate or Executive Magistrate or District
,Collector or an officer of equivalent rank. A further appeal against
,any order of the District Magistrate or Additional District
,Magistrate will now lie before the Chief Electoral Officer of the
,state.
,
,Voting Rights to Citizens of India Living Abroad
,"In 201026 , a provision was made to confer voting rights to the"
,citizens of India residing outside India due to various reasons.
,"Accordingly, every citizen of India - (a) whose name is not"
,included in the electoral roll (b) who has not acquired the
,citizenship of any other country (c) who is absent from his place of
,"ordinary residence in India owing to his employment, education or"
,otherwise outside India (whether temporarily or not) - shall be
,entitled to have his name registered in the electoral roll in the
,Parliamentary / Assembly constituency in which his place of
,residence in India as mentioned in his passport is located.
,
,Online Enrolment in the Electoral Roll
,"In 2013, a provision was made for online filing of applications for"
,"enrolment in the electoral roll. For this purpose, the Central"
,"Government, after consulting the Election Commission, made the"
,rules known as the Registration of the Electors (Amendment)
,"Rules, 2013.27 These rules made certain amendments in the"
,"Registration of Electors Rules, 1960."
,Introduction of NOTA Option
,"According to the directions of Supreme Court, the Election"
,Commission made provision in the ballot papers / EVMs for None
,of the Above (NOTA) option so that the voters who come to the
,polling booth and decide not to vote for any of the candidates in
,"the fray, are able to exercise their right not to vote for such"
,candidates while maintaining the secrecy of their ballot. The
,provision for NOTA has been made since General Election to
,"State Legislative Assemblies of Chhattisgarh, Madhya Pradesh,"
,"Mizoram, NCT of Delhi and Rajasthan in 2013 and continued in"
,the General Election to State Legislative Assemblies of Andhra
,"Pradesh, Arunachal Pradesh, Odisha and Sikkim in 2014 along"
,with the General Elections to the Sixteenth Lok Sabha (2014).28
,The voters polled against the NOTA option are not taken into
,account for calculating the total valid voters polled by the
,contesting candidates for the purpose of return of security
,deposits to candidates. Even if the number of electors opting for
,NOTA options is more than the number of votes polled by any of
,"the candidates, the candidate who secures the largest number of"
,votes has to be declared elected.29
,"In 2001, the ECI had sent a proposal to the Government to"
,amend the law so as to provide for a neutral vote provision for the
,electors who did not wish to vote for any of the candidates. In
,"2004, PUCL (People’s Union for Civil Liberties) filed a petition"
,seeking a direction to provide the necessary provision in ballot
,papers and EVMs for protection of the right to not vote for any
,"candidate, secretly. The Supreme Court in 2013 held that the ECI"
,may provide for the None of the Above (NOTA) option on EVMs
,and ballot papers.30
,
,Introduction of VVPAT
,The Voter Verifiable Paper Audit Trail is an independent system
,attached with the EVMs that allows the voters to verify that their
,"votes are cast as intended. When a vote is cast, a slip is printed"
,and remains exposed through a transparent window for seven
,"seconds, showing the serial number, name and symbol of the"
,"candidate. Thereafter, the receipt automatically gets cut and falls"
,into the sealed dropbox of the VVPAT. The system allows a voter
,to challenge his/her vote on the basis of the paper receipt. As per
,"rules, the Presiding Officer of the polling booth will have to record"
,"the dissent of the voter, which would have to be taken into"
,"account at the time of counting, if the challenge is found to be"
,false.31
,"The law for using VVPATs was amended in 2013. In 2013, the"
,Supreme Court of India had permitted the ECI to introduce VVPAT
,"in a phased manner, calling it ‘an indispensable requirement of"
,free and fair elections’. The Court had felt that introducing VVPAT
,would ensure the accuracy of the voting system and also help in
,manual counting of votes in case of dispute. VVPATs were first
,used in byeelection to the Noksen Assembly Constituency of
,"Nagaland held in 2013. Thereafter, VVPATs have been used in"
,selected constituencies during every General Election to State
,Legislative Assemblies. VVPATs were used in eight selected
,Parliamentary Constituencies in the country in the 2014 Lok
,Sabha Election. EVMs with VVPAT ensure the accuracy and
,transparency of the voting system.32
,
,Persons in Jail or Police Custody Can Contest Elections
,"In 2013,33 the Supreme Court upheld an order of the Patna High"
,Court declaring that a person who has no right to vote by reason
,"of being in jail or in police custody, is not an elector and is,"
,"therefore, not qualified to contest the elections to the Parliament"
,or the State Legislature. In order to negate this order of the
,"Supreme Court, the following two new provisions34 have been"
,"included in the Representation of the People Act, 1951:"
,(i) The first provision expressly provides that by reason of the
,"prohibition to vote (either due to in jail or in police custody), a"
,person whose name has been entered in the electoral roll
,shall not cease to be an elector.
,(ii) The second provision expressly provides that a Member of
,Parliament or the State Legislature shall be disqualified only if
,he is so disqualified under the provisions contained in the Act
,and on no other ground.
,"Consequently, the persons in jail or in police custody are"
,allowed to contest the elections.
,Immediate Disqualification of Convicted MPs and MLAs
,"In 2013,35 the Supreme Court held that chargesheeted Members"
,"of Parliament and MLAs, on conviction for offences, will be"
,immediately disqualified from holding membership of the House
,"without being given three months’ time for appeal, as was the"
,case before.
,The concerned Bench of the Court struck down as
,unconstitutional Section 8 (4) of the Representation of the People
,Act (1951) that allows convicted lawmakers a three-month period
,for filing appeal to the higher court and to get a stay of the
,"conviction and sentence. The Bench, however, made it clear that"
,the ruling will be prospective and those who had already filed
,appeals in various High Courts or the Supreme Court against their
,convictions would be exempt from it.
,The Bench said: “A reading of the two provisions in Articles 102
,and 191 of the Constitution would make it abundantly clear that
,Parliament is to make one law for a person to be disqualified for
,"being chosen as, and for being, a Member of either House of"
,Parliament or Legislative Assembly or Legislative Council of the
,State. Parliament thus does not have the power under Articles
,102 and 191 of the Constitution to make different laws for a
,person to be disqualified for being chosen as a member and for a
,person to be disqualified for continuing as a Member of
,Parliament or the State Legislature.”
,The Bench said: “Section 8 (4) of the Act which carves out a
,saving in the case of sitting members of Parliament or State
,Legislature from the disqualifications under the Act or which
,defers the date on which the disqualification will take effect in the
,case of a sitting member of Parliament or a State Legislature is
,beyond the powers conferred on Parliament by the Constitution.”
,The Bench held: “Looking at the affirmative terms of Articles
,"102 and 191 of the Constitution, we hold that Parliament has been"
,vested with the powers to make law laying down the same
,disqualifications for person to be chosen as a member of
,Parliament or a State Legislature and for a sitting member of a
,House of Parliament or a House of a State Legislature. We also
,hold that the provisions of Article 101 and 190 of the Constitution
,expressly prohibit Parliament to defer the date from which the
,disqualification will come into effect in case of a sitting member of
,"Parliament or a State Legislature. Parliament, therefore, has"
,exceeded its powers conferred by the Constitution in enacting
,sub-section (4) of Section 8 of the Act and accordingly sub-section
,(4) of Section 8 of the Act is ultra vires the Constitution36 .”
,"In order to nullify the above ruling of the Supreme Court, the"
,Representation of the People (Second Amendment and
,"Validation) Bill, 2013 was introduced in the Parliament. However,"
,the Bill was later withdrawn by the Government.
,
,Ceiling on Election Expenditure
,"Increased In 201437 , the Central Government raised the"
,maximum ceiling on election expenditure by candidates for a Lok
,Sabha seat in bigger states to ₹70 lakhs (from earlier ₹40 lakhs).
,"In other states and union territories, it is ₹54 lakhs (from earlier"
,₹16–40 lakhs).
,"Similarly, the limit for an Assembly seat in the bigger states was"
,increased to ₹28 lakhs (from earlier ₹16 lakhs). In other states
,"and union territories, it is 20 lakhs (from earlier ₹8–16 lakhs)."
,The State-wise limits are mentioned in Table 73.1 at the end of
,this chapter.
,
,Photos of Candidates on EVMs and Ballot Papers
,"According to an Election Commission order, in any election being"
,"held after May 1, 2015, the ballot papers and EVMs will carry the"
,picture of the candidate with his or her name and party symbol to
,avoid confusion among the electorates in constituencies where
,namesakes are contesting.
,The June 2015 by polls to six seats in five states were the first
,elections where photographs of candidates were used on ballot
,papers.
,The Commission has noted that there are many cases where
,candidates with same or similar names contest from the same
,constituency. Although appropriate suffixes are added to the
,names of candidates in the event of two or more candidates
,"having same name, the Commission considers that additional"
,measures are required for removing confusion in the minds of
,electors at the time of voting.
,   The photograph will appear between the name of the candidate
,and his or her election symbol.
,The Commission explained that if a candidate fails to provide
,"the photograph, it “shall not be a ground for the rejection of the"
,nomination of the candidate”.
,The candidates will now be required to submit their recent
,"photograph, either black and white or coloured, to the election"
,authorities at the time of filing nomination. No uniforms would be
,allowed and caps and dark glasses have to be avoided.38
,
,Ceiling on Cash Donations Lowered:
,"In 2017 budget, the limit for anonymous cash donations by any"
,"individual to a political party has been lowered from ₹20,000 to"
,"₹2,000. This means that now the political parties cannot receive"
,"more than ₹2,000 as cash donations. However, they are not"
,required to inform the Election Commission of India the details of
,"persons who donate under ₹2,000. They must keep records of"
,"persons making above ₹2,000 donations."
,
,Cap on Corporate Contributions Lifted:
,"In 2017 budget, the limit on corporate contributions from 7.5 per"
,cent of the net profit of a company’s past three financial years has
,been removed. This means that now a company can donate any
,"amount of money to any political party. Further, the obligation of"
,the company to report such donations in its profit and loss account
,has also been lifted.
,
,Introduction of Electoral Bonds:
,"In 2018, the central government notified the Electoral Bond"
,Scheme. This scheme was announced in the 2017 budget. It is
,touted as an alternative to cash donations made to the political
,parties. It is aimed at bringing clean money and substantial
,transparency into the system of political funding. The salient
,features of the scheme are:
,(i) The electoral bond means a bond issued in the nature of
,promissory note which is a bearer banking instrument and
,does not carry the name of the buyer or payee.
,(ii) The electoral bonds may be purchased by a citizen of India or
,entities incorporated or established in India.
,(iii) The electoral bonds can be used for making donations to only
,those registered political parties which have secured not less
,than one per cent of the votes polled in the last general
,election to the Lok Sabha or the State legislative Assembly.
,(iv) The electoral bonds can be encashed by an eligible political
,party only through a bank account with the authorized bank.
,"(v) The electoral bonds are issued in the denomination of ₹1,000,"
,"₹10,000, ₹1,00,000, ₹10,00,000 and ₹1,00,00,000."
,(vi) The information furnished by the buyer is treated confidential
,by the authorized bank and is not to be disclosed to any
,"authority for any purposes, except when demanded by a"
,competent court or upon registration of criminal case by any
,law enforcement agency.
,
,Foreign Funding Allowed:
,"In 2018 budget, the receiving of foreign funds by the political"
,"parties has been allowed. In other words, the political parties can"
,"now receive funds from the foreign companies. Accordingly, the"
,"Foreign Contribution (Regulation) Act, 2010, has been amended."
,"Under this amendment, the definition of a foreign company has"
,been modified.
,
,Table 73.1 Limit on Election Expenditure (As declared in 2014)
,Sl.    Name of State     Maximum limit of election expenses
,No.      or Union                   in any one
,territory
,Parliamentary          Assembly
,constituency          constituency
,I. STATES                   ₹                    ₹
,"1    Andhra Pradesh         70,00,000             28,00,000"
,"2    Arunachal              54,00,000             20,00,000"
,Pradesh
,"3    Assam                  70,00,000             28,00,000"
,"4    Bihar                  70,00,000             28,00,000"
,"5    Goa                    54,00,000             20,00,000"
,"6    Gujarat         70,00,000   28,00,000"
,"7    Haryana         70,00,000   28,00,000"
,"8    Himachal        70,00,000   28,00,000"
,Pradesh
,"9    Jammu and       70,00,000      –"
,Kashmir
,"10   Karnataka       70,00,000   28,00,000"
,"11   Kerala          70,00,000   28,00,000"
,"12   Madhya          70,00,000   28,00,000"
,Pradesh
,"13   Maharashtra     70,00,000   28,00,000"
,"14   Manipur         70,00,000   20,00,000"
,"15   Meghalaya       70,00,000   20,00,000"
,"16   Mizoram         70,00,000   20,00,000"
,"17   Nagaland        70,00,000   20,00,000"
,"18   Odisha          70,00,000   28,00,000"
,"19   Punjab          70,00,000   28,00,000"
,"20   Rajasthan       70,00,000   28,00,000"
,"21   Sikkim          54,00,000   20,00,000"
,"22   Tamil Nadu      70,00,000   28,00,000"
,"23   Tripura         70,00,000   20,00,000"
,"24   Uttar Pradesh   70,00,000   28,00,000"
,"25   West Bengal     70,00,000   28,00,000"
,"26   Chhattisgarh    70,00,000   28,00,000"
,"27   Uttarakhand     70,00,000   28,00,000"
,"28   Jharkhand       70,00,000   28,00,000"
,"29   Telangana       70,00,000   28,00,000"
,II. UNION
,TERRITORIES
,"1    Andaman and     54,00,000      –"
,    Nicobar Islands
,"2   Chandigarh            54,00,000                 –"
,"3   Dadra and             54,00,000                 –"
,Nagar Haveli
,"4   Daman and Diu         54,00,000                 –"
,"5   Delhi                 70,00,000            28,00,000"
,"6   Lakshadweep           54,00,000                 –"
,"7   Puducherry            54,00,000            20,00,000"
,
,
,NOTES AND REFERENCES
,"1. See “Electoral Reforms of 1996”, discussed later in this"
,chapter.
,"2. In 1998, the BJP-led Government appointed an eight-"
,member committee on state funding of elections under
,"the chairmanship of Indrajit Gupta, a former Home"
,Minister. The committee submitted its report in 1999. It
,upheld the argument for introduction of state funding of
,elections. It stated that state funding of elections is
,constitutionally and legally justified and is in public
,interest.
,"3. For recommendations of the commission in this regard,"
,see Chapter 80.
,"4. This came into force on March 28, 1989. Consequently,"
,amendments were also made in the Representation of
,the People Act of 1950 and 1951.
,5. Representation of the People (Amendment) Act of
,1988
,6. Ibid.
,7. Amendment to the Representation of the People Act of
,"1951 with effect from March 15, 1989."
,8. Section 58-A has been inserted in the Representation of
,the People Act of 1951 by Act 1 of 1989.
,"8a. Annual Report 2013–14, Ministry of Law and Justice,"
,"Government of India, p.67."
,"  9. Representation of the People (Amendment) Act, 1996,"
,"with effect from August 1, 1996."
,"10. As defined in Arms Act, 1959."
,11. Presidential      and     Vice-Presidential Elections
,"(Amendment) Act, 1997."
,"12. Representation of the People (Amendment) Act, 1998."
,"13. Representation of the People (Amendment) Act, 1999."
,"14. Election Laws (Amendment) Act, 2003 and Conduct of"
,"Elections (Amendment) Rules, 2003."
,"15. Order dated March 27, 2003."
,"16. Representation of the People (Amendment) Act, 2003."
,"17. Election and Other Related Laws (Amendment) Act,"
,2003
,18. Ibid.
,19. Ibid.
,20. Ibid.
,20a. Election Commission of India circular dated 12th
,"February, 2009."
,"21. Representation of the People (Amendment) Act, 2009,"
,"with effect from February 1, 2010."
,22. Ibid.
,23. Ibid.
,24. Ibid.
,25. Ibid.
,"26. Representation of the People (Amendment) Act, 2010,"
,"with effect from February 10, 2011."
,27. The amendment was notified vide S.O. 3242 (E) dated
,"24th October, 2013."
,"28. Electoral Statistics : Pocket Book 2015, Election"
,"Commission of India, p.96."
,29. Ibid.
,"30. India Votes : The General Elections 2014, Election"
,"Commission of India, p.18."
,31. Ibid.
,32. Ibid.
,33. Chief Election Commissioner vs. Jan Chaukidar (2013).
,34. Vide the Representation of the People (Amendment
,"and Validation) Act, 2013."
,35. Lily Thomas vs. Union of India and Lok Prahari vs.
,Union of India (2013).
,"36. The Hindu, “MPs, MLAs to be disqualified on date of"
,"criminal conviction”, July 10, 2013."
,"37. Conduct of Election Rules, 1961 as amended in 2014,"
,"with effect from February 28, 2014."
,"38. The Economic Times, “Electronic Voting Machines to"
,"carry photos of candidates : CEC”, September 9, 2015."
, 74       Voting Behaviour
,
,
,MEANING OF VOTING BEHAVIOUR
,
,Voting behaviour is also known as electoral behaviour. It is a form of
,political behaviour. It implies the behaviour of voters in the context of
,elections in a democratic political system.
,Voting behaviour (or the study of voting behaviour) is defined in
,the following way:
,Plano and Riggs: “Voting behaviour is a field of study concerned
,with the ways in which people tend to vote in public elections and the
,reasons why they vote as they do.”
,Gordon Marshall: “The study of voting behaviour invariably focuses
,on the determinants of why people vote as they do and how they
,arrive at the decisions they make”.1
,Oinam Kulabidhu: “Voting behaviour may be defined as the
,"behaviour that explicitly reflects voter’s choices, preferences,"
,"alternatives, ideologies, concerns, agreements, and programmes in"
,"respect of various issues, questions pertaining to the society and"
,nation”.2
,Stephen Wasby: “The study of voting behaviour involves an analysis
,of individual psychological make-up and their relation to political
,"action as well as institutional patterns, such as the communication"
,process and their impact on elections”.3
, SIGNIFICANCE OF VOTING BEHAVIOUR
,
,"Psephology, a branch of political science, deals with the scientific"
,study of voting behaviour. This is a new term popularised by the
,American political scientists and political sociologists.
,"The recorded history of voting goes back, at least, to the Greek"
,"Polis. The modern world for the study of voting behaviour,"
,"psephology, derives from the classical Greek ‘Psephos’, the piece of"
,"pottery on which certain votes, mainly about the banishment of those"
,"seen as dangerous to the state, were inscribed.4"
,The study of voting behaviour is significant for the following
,reasons:5
,1. It helps in comprehending the process of political socialisation.
,2. It helps in examining the internalisation of democracy as a
,value among the elite as well as masses.
,3. It emphasises the real impact of revolutionary ballot box.
,4. It enables to throw light as to how far the electoral politics
,continue or break with the past.
,5. It helps to measure whether it is modern or primordial in the
,context of political development.
,"According to N.G.S. Kini, voting behaviour can be regarded as:"
,1. A mode of legitimising democratic rule;
,2. Instancing “participation” in the political process involving
,integration into the political community;
,3. Instancing an act of decision-making;
,4. A role-action involving definite political orientation imbedded in
,a particular type of political culture; or
,5. A direct relation of the individual citizens to the formal
,government.
, DETERMINANTS OF VOTING BEHAVIOUR
,
,"Indian society is highly diversified in nature and composition. Hence,"
,voting behaviour in India is determined or influenced by multiple
,"factors. These several factors can be divided, into two broad"
,"categories, namely, socioeconomic factors and political factors."
,These are explained below:
,1. Caste: Caste is an important factor influencing the behaviour of
,voters. Politicisation of caste and casteism in politics has been
,a remarkable feature of Indian politics. Rajni Kothari said
,"“Indian politics is casteist, and caste is politi-cised”.6 While"
,"formulating their election strategies, the political parties always"
,take into account the factor of caste.
,Paul Brass has very-well explained the role of caste factor in
,the Indian voting behaviour in the following way: “At the local
,"level, in the country side, by far the most important factor in"
,voting behaviour remains caste solidarity. Large and important
,castes in a constituency tend to back either a respected
,member of their caste or a political party with whom their caste
,"members identify. However, local factions and local-state"
,"factional alignments that involve intercaste coalitions, are also"
,important factors in influencing voting behaviour”.7
,2. Religion: Religion is another significant factor which influences
,the electoral behaviour. Political parties indulge in communal
,propaganda and exploit the religious sentiments of the voters.
,The existence of various communal parties has further added to
,the politicisation of religion. Despite India being a secular
,"nation, no political party ignores the influence of religion in"
,electoral politics.
,3. Language: Linguistic considerations of the people influence
,"their voting behaviour. During elections, the political parties"
,arouse the linguistic feelings of the people and try to influence
,their decision-making. The re-organisation of states (in 1956
,and later) on language basis clearly reflects the significance of
,language factor in Indian politics. The rise of some political
,parties like DMK in Tamil Nadu and TDP in Andhra Pradesh
,can be attributed to the linguism.8
,4. Region: Regionalism and sub-regionalism play an important
,role in voting behaviour. These parochial feelings of
,     subnationalism led to the emergence and perpetuation of
,regional parties in various states. These regional parties appeal
,to the electorate on the ground of regional identities and
,"regional sentiments. Sometimes, the secessionist parties call"
,for the boycott of elections.
,5.   Personality: The charismatic9 personality of the party leader
,"plays an important role in electoral behaviour. Thus, the"
,"towering image of Jawaharlal Nehru, Indira Gandhi, Rajiv"
,"Gandhi, Jay Prakash Narayan, Atal Bihari Vajpayee and"
,Narendra Modi has significantly influenced the electorate to
,"vote in favour of their parties. Similarly, at the state level also,"
,the charismatic personality of the regional party leader has
,been a significant factor of popular support in the elections.
,6.   Money: The role of money factor cannot be overlooked in
,explaining the voting behaviour. Despite the limitations on the
,"election expenditures, crores of rupees are spent on elections."
,The voters seek money or liquor or goods in return for their
,"votes. In other words, ‘votes’ are freely exchanged for ‘notes’."
,"However, money can influence the decisions of the voters only"
,in the normal circumstances and not in a wave election.
,Paul Brass has very-well explained the meaning of a wave
,election in the following way: “A wave election is one in which a
,clear tendency begins to develop among the electorate in a
,single direction and in favour of a national party or its leader. It
,is based upon an issue or set of issues that transcend local
,calculations and coalition and draws the bulk of the
,uncommitted and wavering voters in the same direction as the
,word spreads from village to village and tea stall to tea stall”.10
,"7.   Performance of the Ruling Party: On the eve of elections,"
,every political party releases its election manifesto containing
,the promises made by it to the electorate. The performance of
,the ruling party is judged by the electorate on the basis of its
,election manifesto. The defeat of Congress Party in 1977
,elections and that of Janata Party in 1980 elections illustrates
,that the performance of the ruling party influences the voting
,"behaviour. Thus, the anti-incumbency factor (which means"
,dissatisfaction with the performance of the ruling party) is a
,determinant of electoral behaviour.
,8.   Party Identification: Personal and emotional association with
,political parties plays a role in determining voting behaviour.
,     People who identify themselves with a particular party will
,always vote for that party irrespective of its omissions and
,commissions. Party identification was especially strong in the
,"1950s and 1960s. However, since the 1970s, there has been a"
,decline in the number of strong party identifiers.
,9. Ideology: The political ideology professed by a political party
,has a bearing on the decision-making of the voters. Some
,people in the society are committed to certain ideologies like
,"communism, capitalism, democracy, secularism, patriotism,"
,decentralisation and so on. Such people generally support the
,candidates put up by the parties professing those ideologies.
,"However, it must be printed out here that the number of such"
,people is low.
,"10. Other Factors: In addition to the aboveexplained factors, there"
,are also various other factors which determine the voting
,behaviour of the Indian electorate. These are mentioned below:
,"(i) Political events preceding an election like war, murder of"
,"leader, corruption scandals, etc."
,"(ii) Economic conditions at the time of election like inflation, fo"
,"shortage, unemployment, etc."
,(iii) Factionalism - a feature of Indian politics from bottom to t
,levels
,(iv) Age - old or young
,(v) Sex - men or women
,(vi) Education - educated or uneducated
,(vii) Habitation - rural or urban (viii) Class (income) - rich or poor
,(ix) Family and kinship
,(x) Candidate orientation
,(xi) Election campaign
,(xii) Political family background
,(xiii) Role of media
, ROLE OF MEDIA IN ELECTIONS AND VOTING
,BEHAVIOUR
,
,The following points explain the role of media in elections and voting
,behaviour:11
,
,1. Information Dissemination
,"Information dissemination in relation to elections, particularly during"
,the process of elections is extremely important for all stakeholders.
,"Starting from the announcement of elections to nomination, scrutiny,"
,"campaign, security arrangements, polling, counting, declaration of"
,"results, etc., all of these require widest circulation. The voter comes"
,"to know about the basics like: what, when, where and how of"
,elections generally through the media. Even last minute changes of
,"polling arrangements, violation of Model Code of Conduct (MCC),"
,"and violation of expenditure instructions, any untoward incidents or"
,disturbances promptly come to the notice not only of the people but
,also of the Election Commission through the media.
,Newspapers and news channels have very enthusiastically made
,"use of the information relating to educational, financial and criminal"
,"antecedents of candidates, contained in the affidavit filed by them"
,"along with their nomination paper, which is immediately uploaded on"
,the Election Commission’s website. This has contributed to further
,honesty and transparency in the election system.
,
,2. Enforcement of MCC and other Laws
,"In today’s democratic and political landscape, the watch-dog role of"
,the media is quite vital. Media can highlight incidents of use of
,muscle and money power by political parties or candidates and
,educate the electors on ethical and inducement-free voting practices.
,It can also expose violations of the MCC such as divisive or hate
,speeches or unverified allegations in campaigns aimed at influencing
,electors. Violations reported by media are followed up by the Election
,Commission as in dealing with formal complaints.
,The media can sensitise the political functionaries and the
,electorate about the MCC and relevant laws and instructions
,governing the conduct of elections.
,3. Compliance to Election Laws
,"The Election Commission does not regulate media. It has however,"
,"the responsibility to enforce the provisions of law or Court directions,"
,which might have linkages with media or certain aspects of media
,"functioning. During elections, media is present and active at all"
,stages which would also mean that they too conform to various laws
,governing the elections. These laws are mentioned below:
,"(i) Section 126 of the Representation of the People Act, 1951: It"
,prohibits displaying any election matter by mean of
,"cinematograph, television or other similar apparatus, during the"
,period of 48 hours ending with the hour fixed for conclusion of
,poll.
,"(ii) Section 126A of the Representation of the People Act, 1951:"
,It prohibits conduct of exit poll and dissemination of their results
,"during the period mentioned therein, i.e., the hour fixed for"
,commencement of polls in the first phase and half hour after the
,time fixed for close of poll for the last phase in all the States and
,Union Territories.
,"(iii) Section 127A of the Representation of the People Act, 1951:"
,"The printing and publication of election pamphlets, posters, etc."
,"is governed by its provisions, which make it mandatory to bear"
,on its face the names and addresses of the printer and the
,publisher.
,(iv) Section 171H of the Indian Penal Code: It prohibits incurring of
,"expenditure on, inter alia, advertisement without the authority of"
,the contesting candidate.
,
,4. Voter Education and Participation
,There is scope for a much larger and committed partnership from
,media in the crucial area of voter awareness and participation. This is
,one of the most promising areas of the Election Commission-media
,relationship.
,There is a gap between what the voters ‘should know’ and what
,"they ‘actually know’ in important areas like registration, EPIC/ identity"
,"proofs, Polling Station location, use of EVMs, timings of the poll, use"
,of money/ muscle power by candidates etc. The elector should be
,well-informed when he/she goes to exercise his/ her franchise on the
,day of the polls.
,   Voter education helps build an environment where values of
,democracy are understood and acted upon by the population. Media
,and civil society have an important role to play in fostering such an
,"environment. To improve participation of all sections of the electorate,"
,"awareness levels need to be enhanced, especially amongst the"
,"freshly eligible youth, uneducated, residents of far-flung, inaccessible"
,"and remote areas, and socially and economically weaker sections of"
,"the society. Such segments need to be reached through the Media,"
,apart from civil society and field based organisations. The Election
,Commission has in place a framework of engagement for
,collaboration between the Commission and Media Houses/
,Organisations in this important area of voter participation. The
,Election Commission expects that the Media should volunteer to take
,"up this task of informing, motivating and facilitating citizens to take"
,part in the democratic elections.
,
,5. Responsibility of Government Media
,"In broadcast of election related news or analysis, Public Service"
,Broadcasters are expected to lead by example in terms of neutrality
,"and objectivity, and adhere to various guidelines including their own."
,The Election Commission has a fruitful arrangement with Prasar
,Bharati in providing free broadcast time on All India Radio and
,Doordarshan to recognised National and State parties so as to
,ensure a level playing field in elections. The political parties in this
,"manner can reach out to every corner of the country, even in the"
,"remotest parts. In addition to this, Prasar Bharati’s contribution in"
,spreading voter awareness and educating the public about their
,voting rights and responsibilities is of great consequence to the
,inclusion of all in the electoral process. The contribution of Prasar
,Bharati has come in good measure in this arena.
,"The Election Commission also urges PIB, DAVP, National Film"
,"Development Corporation, Directorate of Field Publicity, Song and"
,Drama Division and many other Central and State Information
,Directorates/ Departments to come forward and shoulder the same
,responsibility.
,
,
,NOTES AND REFERENCES
," 1. Gordon Marshall, Oxford Dictionary of Sociology, First"
,"Indian Edition, 2004, p.696."
,"2. Oinam Kulabidhu, Electoral Politics in Manipur, 1980–1995"
,(Unpublished Ph.D. Thesis submitted to the Manipur
,"University, 1998)."
,"3. Stephen L. Wasby, Political Science: The Discipline and its"
,"Dimensions, 1972, Scientific Book Agency, Calcutta, p.308."
,"4. David Robertson, The Penguin Dictionary of Politics,"
,"Second Edition, 1993, p.485."
,"5. K.R. Acharya (Ed.), Perspectives on Indian Government"
,"and Politics, Second Edition, 1991, S. Chand & Company"
,"Ltd., p.403."
,6. Caste in Indian Politics and Politics in India are the two
,major contributions of Rajni Kothari to the study of Indian
,politics.
,"7. Paul R. Brass, The Politics of India Since Independence,"
,"Second Edition, Cambridge University Press, pp. 97–98."
,8. Linguism means love for one’s language and hatred
,towards other languagespeaking people.
,9. ‘Charisma’ means exceptional and attractive qualities of a
,leader.
,"10. Paul R. Brass, The 1984 Parliamentary Elections in Uttar"
,"Pradesh, Asian Survey, June, 1986."
,"11. Handbook for Media-2014, Election Commission of India,"
,pp.14–17.
, 75       Coalition Government
,
,
,MEANING OF COALITION GOVERNMENT
,The term ‘coalition’ is derived from the Latin word ‘coalitio’ which
,"means ‘to grow together’. Thus, technically, coalition means the"
,"act of uniting parts into one body or whole. Politically, coalition"
,means an alliance of distinct political parties.
,Coalition politics or coalition government has been defined in
,the following way:
,When several political parties join hands to form a government
,and exercise political power on the basis of a common agreed
,"programme/agenda, we can describe the system as coalition"
,politics or coalition government1 .
,Coalitions usually occur in modern parliaments when no single
,"political party can muster a majority of votes. Two or more parties,"
,who have enough elected members between them to form a
,"majority, may then be able to agree on a common programme that"
,does not require too many drastic compromises with their
,"individual policies, and can proceed to form a government2 ."
,Coalition denotes a co-operative arrangement under which
,"distinct political parties, or at all events members of such parties,"
,unite to form a government or ministry3 .
,Coalition is a direct descendant of the exigencies of multi-party
,system in a democratic set-up. It is a phenomenon of a multi-party
,government where a number of minority parties join hands for the
,purpose of running the government. A coalition is formed when
,many splinter groups in a House agree to join hands on a
,common platform by sinking their broad differences and form a
,majority in the House4 .
, FEATURES OF COALITION GOVERNMENT
,
,The features or implications of coalition politics or coalition
,government are very well summarised by J.C. Johari in the
,following way5 :
,"1. Coalitions are formed for the sake of some reward, material"
,or psychic.
,2. A coalition implies the existence of at least two partners.
,3. The underlying principle of a coalition system stands on the
,simple fact of temporary conjunction of specific interest.
,4. Coalition politics is not a static but a dynamic affair as
,coalition players and groups dissolve and form new ones.
,"5. The keynote of coalition politics is compromise, and rigid"
,dogma has no place in it.
,6. A coalition government works on the basis of a minimum
,"programme, which may not be ideal for each partner of the"
,coalition.
,7. Pragmatism and not ideology is the hallmark of coalition
,"politics. In making political adjustments, principles may have"
,to be set aside.
,8. The purpose of a coalition adjustment is to seize power.
,"In our country, we have seen coalitions coming up either before"
,the elections or after the elections. The pre-poll coalition is
,considerably advantageous because it provides a common
,platform to the parties in order to woo the electorate on the basis
,of a joint manifesto. The post-election union is intended to enable
,constituents to share political power and run the government6 .
, FORMATION OF COALITION GOVERNMENTS
,"In the first four Lok Sabha elections (1952, 1957, 1962 and 1967),"
,the Congress party secured the required majority to form the
,government at the Centre. Even though there was a split in the
,"Congress party in 1969, the minority government of Indira Gandhi"
,"managed to continue with the outside support of the CPI, the DMK"
,"and other parties. Again, the Congress party won the 1971"
,elections and formed a single-party government.
,"However, the dominant Congress party was badly defeated in"
,"the 1977 elections. Since then, there have been a number of"
,coalition governments at the Centre. The details are mentioned in
,Table 75.1.
,
,Table 75.1 Formation of Coalition Governments at the Centre
,Sl. Period     Coalition      Prime           Partners
,No.                           Minister
,(Party)
,"1.   1977–     Janata Party   Morarji Desai Congress (O),"
,1979                     (Congress (O)) Bharatiya Jana
,"Sangh, Bharatiya"
,"Lok Dal, Socialist"
,"Party, Congress for"
,"Democracy,"
,Chandra Shekhar
,Group (former
,congressmen) and
,others.
,2.   1979–     Janata Party   Charan Singh    Janata (S) and
,1980      (Secular)      (Janata(S))     Congress (U).
,Congress (I)
,supported from
,outside.
,"3.   1989–     National       V.P. Singh      Janata Dal, TDP,"
,"1990      Front          (Janata Dal)    DMK, AGP and"
,                                                Congress
,(Socialist) BJP and
,Left parties
,supported from
,outside.
,4.   1990–   Janata Dal       Chandra           Janata Dal (S) and
,1991    (Socialist) or   Shekhar           Janata Party.
,Samajwadi        (Janata Dal (S)   Congress (I)
,Janata Party     or Samajwadi      supported from
,Janata Party)     outside.
,"5.   1996–   United Front     H.D. Deve         Janata Dal, CPI,"
,"1997                     Gowda             Congress (T),"
,"(Janata Dal)      DMK, TDP, TMC,"
,"AGP, SP and"
,others. Congress
,and CPM
,supported from
,outside.
,"6.   1997–   United Front     I.K. Gujral       Janata Dal, CPI,"
,"1998                     (Janata Dal)      TMC, SP, DMK,"
,"AGP, TDP and"
,others. Congress
,supported from
,outside.
,"7.   1998–   BJP-led          A.B. Vajpayee BJP, AIADMK,"
,"1999    Coalition        (BJP)         BJD, Shiv Sena,"
,"Lok Shakti,"
,Arunachal
,"Congress, Samata,"
,"Akali Dal, PMK,"
,TRC and others.
,TDP and
,Trinamool
,Congress
,supported from
,outside.
,"8.   1999–   National         A.B. Vajpayee BJP, JD (U),"
,     2004    Democratic     (BJP)         Trinamool
,"Alliance                     Congress, Shiv"
,"(NDA)                        Sena, BJD, LJP,"
,"DMK, PMK, INLD,"
,"MDMK, National"
,"Conference, Akali"
,"Dal, RLD, AGP"
,and others.
,"9.   2004–   United         Manmohan      Congress, NCP,"
,"2009    Progressive    Singh         DMK, RJD, LJP,"
,Alliance       (Congress)    PMK and others.
,(UPA)                        CPI and CPM
,supported from
,outside.
,"10. 2009–    United         Manmohan      Congress, NCP,"
,"2014     Progressive    Singh         DMK, Trinamool"
,"Alliance-II    (Congress)    Congress, National"
,(UPA-II)                     Conference and
,others.
,"11. 2014–    National       Narendra Modi BJP, LJP, TDP,"
,"2019     Democratic     (BJP)         Shiv Sena, Akali"
,"Alliance                     Dal, Rashtriya Lok"
,"(NDA)                        Samata Party,"
,Apna Dal (S) and
,others. TDP left
,NDA in 2018.
,"12. 2019- till National     Narendra Modi BJP, Akali Dal,"
,"date       Democratic   (BJP)         LJP, Shiv Sena"
,Alliance                   and others. Shiv
,(NDA)                      Sena left NDA in
,November 2019.
, MERITS OF COALITION GOVERNMENT
,
,The various advantages or strengths of the coalition governments
,are as follows:
,1. There is an accommodation of diverse interests in the
,functioning of the government. A coalition government acts
,as a channel to meet the expectations and redress the
,grievances of different groups.
,2. India is a highly diversified country. There are different
,"cultures, languages, castes, religions and ethnic groups, and"
,all these get represented in the coalition governments. This
,means that a coalition government is more representative in
,nature and it better reflects the popular opinion of the
,"electorate. In other words, it represents a much more"
,broader spectrum of public opinion than the single-party
,government.
,3. A coalition government comprises different political parties
,"having their own ideologies or agendas. But, the"
,governmental policy requires the concurrence of all the
,"coalition partners. Therefore, a coalition government leads to"
,"consensus-based politics. In other words, there is"
,consensual decision-making in the coalition governments.
,4. Coalition politics strengthens the federal fabric of the Indian
,political system. This is because a coalition government is
,more sensitive and responsive to the regional demands and
,concerns than the single-party government.
,5. A coalition government reduces the tyranny of government
,(despotic rule). This is due to the reduced domination of a
,single political party in the functioning of the government. All
,the members of the coalition participate in the political
,"decision-making. In short, the decisions made are more"
,balanced.
, DEMERITS OF COALITION GOVERNMENT
,
,The various disadvantages or weaknesses of the coalition
,governments are as follows:
,1. They are unstable or prone to instability. The difference of
,opinion among the coalition partners on policy issues leads
,to the collapse of the government.
,2. Leadership of the Prime Minister is a principle of
,parliamentary form of government. This principle is curtailed
,in a coalition government as the Prime Minister is required to
,consult the coalition partners before taking any major
,decision. The critics have called them as ‘Super Prime
,Ministers’ or ‘Ultra Prime Ministers’.
,3. The Steering Committee or the Co-ordination Committee of
,"the coalition partners acts as the ‘Super-Cabinet’, and"
,thereby it undermines the role and position of the cabinet in
,the functioning of the governmental machinery.
,4. There is a possibility of the smaller constituents of the
,coalition government playing the role of a ‘King-maker’. They
,demand more than their strength in the Parliament.
,5. The leaders of regional parties bring in the regional factors
,in the national decision-making. They pressurise the central
,"executive to act on their lines; otherwise, they would"
,threaten to withdraw from the coalition.
,6. The size of the Council of Ministers in a coalition
,government is generally quite large. This is because the
,ministry has to reflect all the constituents of the coalition. For
,"example, the A.B. Vajpayee ministry of 1999 had 70-plus"
,ministers and it was called as ‘Jumbo Ministry’. This creates
,the problem of distribution of portfolios as well as the proper
,coordination among the members.
,7. The members of coalition governments do not assume
,responsibility for the administrative failures and lapses. They
,play blame games and thereby escape from both collective
,responsibility as well as individual responsibility.
,NOTES AND REFERENCES
,"1. Ghai, K.K., Indian Government and Politics, Eighth"
,"Edition, Kalyani Publishers, Ludhiana, 2012, p. 508."
,"2. Robertson, D., The Penguin Dictionary of Politics,"
,"Penguin Books, London, 1993, p. 73."
,"3. Ogg, F.A., Encyclopedia of the Social Sciences, Vol. 2,"
,"New York, 1957, p. 600."
,"4. Sahni, N.C., The theory of coalitions. In Sahni, N.C."
,"(Ed) Coalition Politics in India, Jullundur, 1971, pp. 17–"
,18
,"5. Johari, J.C., Reflections on Indian Politics, New Delhi,"
,"1974, pp. 3–5."
,"6. The Journal of Parliamentary Information, September"
,"2000, XLVI(3), p. 394."
, 76       Anti-Defection Law
,
,
,
,
,T
,he 52nd Amendment Act of 1985 provided for the
,disqualification of the members of Parliament and the state
,legislatures on the ground of defection from one political
,"party to another. For this purpose, it made changes in four"
,Articles1 of the Constitution and added a new Schedule (the Tenth
,Schedule) to the Constitution. This act is often referred to as the
,‘anti-defection law’.
,"Later, the 91st Amendment Act of 2003 made one change in the"
,provisions of the Tenth Schedule. It omitted an exception provision
,"i.e., disqualification on ground of defection not to apply in case of"
,split.
, PROVISIONS OF THE ACT
,
,The Tenth Schedule contains the following provisions with respect
,to the disqualification of members of Parliament and the state
,legislatures on the ground of defection:
,
,1. Disqualification
,Members of Political Parties: A member of a House belonging
,to any political party becomes disqualified for being a member of
,"the House, (a) if he voluntarily gives up his membership of such"
,political party; or (b) if he votes or abstains from voting in such
,House contrary to any direction issued by his political party
,without obtaining prior permission of such party and such act has
,not been condoned by the party within 15 days.
,From the above provision it is clear that a member elected on a
,party ticket should continue in the party and obey the party
,directions.
,Independent Members: An independent member of a House
,(elected without being set up as a candidate by any political party)
,becomes disqualified to remain a member of the House if he joins
,any political party after such election.
,Nominated Members: A nominated member of a House
,becomes disqualified for being a member of the House if he joins
,any political party after the expiry of six months from the date on
,which he takes his seat in the House. This means that he may join
,any political party within six months of taking his seat in the House
,without inviting this disqualification.
,
,2. Exceptions
,The above disqualification on the ground of defection does not
,apply in the following two cases:
,(a) If a member goes out of his party as a result of a merger of
,the party with another party. A merger takes place when two-
,thirds of the members of the party have agreed to such
,merger.
," (b) If a member, after being elected as the presiding officer of"
,"the House, voluntarily gives up the membership of his party"
,or rejoins it after he ceases to hold that office. This
,exemption has been provided in view of the dignity and
,impartiality of this office.
,It must be noted here that the provision of the Tenth Schedule
,pertaining to exemption from disqualification in case of split by
,one-third members of legislature party has been deleted by the
,91st Amendment Act of 2003. It means that the defectors have no
,more protection on grounds of splits.
,
,3. Deciding Authority
,Any question regarding disqualification arising out of defection is
,"to be decided by the presiding officer of the House. Originally, the"
,act provided that the decision of the presiding officer is final and
,"cannot be questioned in any court. However, in Kihoto Hollohan"
,"case2 (1993), the Supreme Court declared this provision as"
,unconstitutional on the ground that it seeks to take away the
,jurisdiction of the Supreme Court and the high courts. It held that
,"the presiding officer, while deciding a question under the Tenth"
,"Schedule, function as a tribunal. Hence, his decision like that of"
,"any other tribunal, is subject to judicial review on the grounds of"
,"mala fides, perversity, etc. But, the court rejected the contention"
,that the vesting of adjudicatory powers in the presiding officer is
,by itself invalid on the ground of political bias3 .
,
,4. Rule-Making Power
,The presiding officer of a House is empowered to make rules to
,give effect to the provisions of the Tenth Schedule. All such rules
,must be placed before the House for 30 days. The House may
,"approve or modify or disapprove them. Further, he may direct that"
,any willful contravention by any member of such rules may be
,dealt with in the same manner as a breach of privilege of the
,House.
,"According to the rules made so, the presiding officer can take"
,up a defection case only when he receives a complaint from a
,"member of the House. Before taking the final decision, he must"
,give the member (against whom the complaint has been made) a
,chance to submit his explanation. He may also refer the matter to
,"the committee of privileges for inquiry. Hence, defection has no"
,immediate and automatic effect.
, EVALUATION OF THE ACT
,
,The Tenth Schedule of the Constitution (which embodies the anti-
,defection law) is designed to prevent the evil or mischief of
,political defections motivated by the lure of office or material
,benefits or other similar considerations. It is intended to
,strengthen the fabric of Indian parliamentary democracy by
,curbing unprincipled and unethical political defections. Rajiv
,"Gandhi, the then Prime Minister, described it as the ‘first step"
,towards cleaning-up public life’. The then Central law minister
,stated that the passing of the 52nd Amendment Bill (anti-defection
,bill) by a unanimous vote by both the Houses of Parliament was ‘a
,"proof, if any, of the maturity and stability of Indian democracy’."
,
,Advantages
,The following can be cited as the advantages of the anti-defection
,law:
,(a) It provides for greater stability in the body politic by checking
,the propensity of legislators to change parties.
,(b) It facilitates democratic realignment of parties in the
,legislature by way of merger of parties.
,(c) It reduces corruption at the political level as well as non-
,developmental expenditure incurred on irregular elections.
,"(d) It gives, for the first time, a clear-cut constitutional"
,recognition to the existence of political parties.
,
,Criticism
,Though the anti-defection law been hailed as a bold step towards
,cleansing our political life and started as new epoch in the political
,"life of the country, it has revealed may lacunae in its operation and"
,failed to prevent defections in toto. It came to be criticised on the
,following grounds:
,1. It does not make a differentiation between dissent and
,defection. It curbs the legislator’s right to dissent and
,"freedom of conscience. Thus, ‘it clearly puts party bossism"
,     on a pedestal and sanctions tyranny of the party in the name
,of the party discipline’4 .
,2.   Its distinction between individual defection and group
,"defection is irrational. In other words, ‘it banned only retail"
,defections and legalised wholesale defections’5 .
,3.   It does not provide for the expulsion of a legislator from his
,party for his activities outside the legislature.
,4.   Its discrimination between an independent member and a
,"nominated member is illogical. If the former joins a party, he"
,is disqualified while the latter is allowed to do the same.
,5.   Its vesting of decision-making authority in the presiding
,"officer is criticised on two grounds. Firstly, he may not"
,exercise this authority in an impartial and objective manner
,"due to political exigencies. Secondly, he lacks the legal"
,knowledge and experience to adjudicate upon the cases. In
,"fact, two Speakers of the Lok Sabha (Rabi Ray–1991 and"
,Shivraj Patil–1993) have themselves expressed doubts on
,their suitability to adjudicate upon the cases related to
,defections6 .
, 91ST AMENDMENT ACT (2003)
,
,Reasons
,The reasons for enacting the 91st Amendment Act (2003) are as
,follows:
,1. Demands have been made from time to time in certain
,quarters for strengthening and amending the Anti-defection
,"Law as contained in the Tenth Schedule, on the ground that"
,these provisions have not been able to achieve the desired
,goal of checking defections. The Tenth Schedule has also
,been criticised on the ground that it allows bulk defections
,while declaring individual defections as illegal. The provision
,for exemption from disqualification in case of splits as
,"provided in the Tenth Schedule has, in particular, come"
,under severe criticism on account of its destabilising effect
,on the Government.
,2. The Committee on Electoral Reforms (Dinesh Goswami
,"Committee) in its report of 1990, the Law Commission of"
,India in its 170th Report on “Reform of Electoral Laws”
,(1999) and the National Commission to Review the Working
,"of the Constitution (NCRWC) in its report of 2002 have, inter"
,"alia, recommended omission of the provision of the Tenth"
,Schedule pertaining to exemption from disqualification in
,case of splits.
,3. The NCRWC was also of the view that a defector should be
,penalised for his action by debarring him from holding any
,public office as a minister or any other remunerative political
,post for at least the duration of the remaining term of the
,"existing Legislature or until, the next fresh elections"
,whichever is earlier.
,4. The NCRWC has also observed that abnormally large
,Councils of Ministers were being constituted by various
,Governments at Centre and states and this practice had to
,be prohibited by law and that a ceiling on the number of
,ministers in a state or the Union Government be fixed at the
,     maximum of 10% of the total strength of the popular House
,of the Legislature.
,
,Provisions
,The 91st Amendment Act of 2003 has made the following
,"provisions to limit the size of Council of Ministers, to debar"
,"defectors from holding public offices, and to strengthen the anti-"
,defection law:
,"1. The total number of ministers, including the Prime Minister,"
,in the Central Council of Ministers shall not exceed 15 per
,cent of the total strength of the Lok Sabha.
,2. A member of either House of Parliament belonging to any
,political party who is disqualified on the ground of defection
,shall also be disqualified to be appointed as a minister.
,"3. The total number of ministers, including the Chief Minister, in"
,the Council of Ministers in a state shall not exceed 15 per
,cent of the total strength of the Legislative Assembly of that
,"state. But, the number of ministers, including the Chief"
,"Minister, in a state shall not be less than 12."
,4. A member of either House of a state legislature belonging to
,any political party who is disqualified on the ground of
,defection shall also be disqualified to be appointed as a
,minister.
,5. A member of either House of Parliament or either House of
,a State Legislature belonging to any political party who is
,disqualified on the ground of defection shall also be
,disqualified to hold any remunerative political post. The
,expression “remunerative political post” means (i) any office
,under the Central Government or a state government where
,the salary or remuneration for such office is paid out of the
,public revenue of the concerned government; or (ii) any
,"office under a body, whether incorporated or not, which is"
,wholly or partially owned by the Central Government or a
,state government and the salary or remuneration for such
,"office is paid by such body, except where such salary or"
,remuneration paid is compensatory in nature.
,6. The provision of the Tenth Schedule (anti-defection law)
,pertaining to exemption from disqualification in case of split
,  by one-third members of legislature party has been deleted.
,It means that the defectors have no more protection on
,grounds of splits.
,
,
,NOTES AND REFERENCES
,"1. These are Articles 101, 102, 190 and 191 which relate"
,to the vacation of seats and disqualification from
,membership of Parliament and the state legislatures.
,"2. Kihoto Hollohan v. Zachilhu, (1993)."
,3. The court observed: ‘The Chairman or Speakers hold a
,pivotal position in the scheme of parliamentary
,democracy and are guardians of the rights and
,privileges of the House. They are expected to and do
,take far-reaching decisions in the functioning of
,parliamentary democracy. Vestiture of power to
,adjudicate questions under the Tenth Schedule in such
,constitutional functionaries should not be considered
,unexceptionable’.
,"4. Soli J. Sorabjee, ‘The Remedy should not be worse"
,"than the Disease’, The Times of India (Sunday Review),"
,"February 1, 1985, p. 1."
,"5. Madhu Limaye, Contemporary Indian Politics, 1989, p."
,190
,6. Speaker Shivraj Patil stated: ‘The advantages in giving
,these cases to the judiciary are many. The Speaker or
,the Chairman may or may not be endowed with legal
,acumen and proficiency in law. It is more apt to have the
,cases decided by the Supreme Court or high court
,judges’.
, 77       Pressure Groups
,
,
,MEANING AND TECHNIQUES
,The term ‘pressure group’ originated in the USA. A pressure
,group is a group of people who are organised actively for
,promoting and defending their common interest. It is so called as
,it attempts to bring a change in the public policy by exerting
,pressure on the government. It acts as a liaison between the
,government and its members.
,The pressure groups are also called interest groups or vested
,groups. They are different from the political parties in that they
,neither contest elections nor try to capture political power. They
,are concerned with specific programmes and issues and their
,activities are confined to the protection and promotion of the
,interests of their members by influencing the government.
,The pressure groups influence the policymaking and policy-
,implementation in the government through legal and legitimate
,"methods like lobbying, correspondence, publicity, propagandising,"
,"petitioning, public debating, maintaining contacts with their"
,"legislators and so forth. However, some times they resort to"
,"illegitimate and illegal methods like strikes, violent activities and"
,corruption which damages public interest and administrative
,integrity.
,"According to Odegard, pressure groups resort to three different"
,"techniques in securing their purposes. First, they can try to place"
,in public office persons who are favourably disposed towards the
,interests they seeks to promote. This technique may be labelled
,"electioneering. Second, they can try to persuade public officers,"
,"whether they are initially favourably disposed toward them or not,"
,to adopt and enforce the policies that they think will prove most
,beneficial to their interests. This technique may be labelled
,"lobbying. Third, they can try to influence public opinion and"
,"thereby gain an indirect influence over government, since the"
,government in a democracy is substantially affected by public
,opinion. This technique may be labelled propagandizing1 .
, PRESSURE GROUPS IN INDIA
,"A large number of pressure groups exist in India. But, they are not"
,developed to the same extent as in the US or the western
,"countries like Britain, France, Germany and so on. The pressure"
,groups in India can be broadly classified into the following
,categories:
,
,1. Business Groups
,The business groups include a large number of industrial and
,"commercial bodies. They are the most sophisticated, the most"
,powerful and the largest of all pressure groups in India. They
,include:
,(i) Federation of Indian Chamber of Commerce and Industry
,(FICCI); major constituents are the Indian Merchants
,"Chamber of Bombay, Indian Merchants Chamber of Calcutta"
,and South Indian Chamber of Commerce of Madras. It
,broadly represents major industrial and trading interests.
,(ii) Associated Chamber of Commerce and Industry of India
,(ASSOCHAM); major constituents are the Bengal Chamber of
,Commerce of Calcutta and Central Commercial Organisation
,of Delhi. ASSOCHAM represents foreign British capital.
,(iii) Federation of All India Foodgrain Dealers Association
,(FAIFDA). FAIFDA is the sole representative of the grain
,dealers.
,(iv) All-India Manufacturers Organisation (AIMO). AIMO raises
,the concerns of the medium-sized industry.
,
,2. Trade Unions
,The trade unions voice the demands of the industrial workers.
,They are also known as labour groups. A peculiar feature of trade
,unions in India is that they are associated either directly or
,indirectly with different political parties. They include:
,(i) All-India Trade Union Congress (AITUC)–affiliated to CPI
,(ii) Indian National Trade Union Congress (INTUC)–affiliated to
,the Congress
,(iii) Hind Mazdoor Sabha (HMS)–affiliated to the Socialists
,(iv) Centre of Indian Trade Unions (CITU)– affiliated to the CPM
,(v) Bharatiya Mazdoor Sangh (BMS)– affiliated to the BJP
,First Trade Union in India: All India Trade Union Congress
,(AITUC) was founded in 1920 with Lala Lajpat Rai as its first
,"president. Upto 1945, Congressmen, Socialists and Communists"
,worked in the AITUC which was the central trade union
,"organisation of workers of India. Subsequently, the trade union"
,movement got split on political lines.
,
,3. Agrarian Groups
,The agrarian groups represent the farmers and the agricultural
,labour class. They include:
,(i) Bhartiya Kisan Union (in the wheat belt of North India)
,(ii) All India Kisan Sabha (the oldest and the largest agrarian
,group)
,(iii) Revolutionary Peasants Convention (organised by the CPM
,in 1967 which gave birth to the Naxalbari Movement)
,(iv) Bhartiya Kisan Sangh (Gujarat)
,(v) R.V. Sangham (Tamil Nadu)
,(vi) Shetkhari Sanghatana (Maharashtra)
,(vii) Hind Kisan Panchayat (controlled by the Socialists)
,(viii) All-India Kisan Sammelan
,(ix) United Kisan Sabha (controlled by the CPM)
,
,4. Professional Associations
,These are associations that raise the concerns and demands of
,"doctors, lawyers, journalists and teachers. Despite various"
,"restrictions, these associations pressurise the government by"
,various methods including agitations for the improvement of their
,service conditions. They include:
,(i) Indian Medical Association (IMA)
,(ii) Bar Council of India (BCI)
,(iii) Indian Federation of Working Journalists (IFWJ)
,(iv) All India Federation of University and College Teachers
,(AIFUCT)
,5. Student Organisations
,Various unions have been formed to represent the student
,"community. However, these unions, like the trade unions, are also"
,affiliated to various political parties. These are:
,(i) Akhil Bharatiya Vidyarthi Parishad (ABVP) (affiliated to BJP)
,(ii) All India Students Federation (AISF) (affiliated to CPI)
,(iii) National Students Union of India (NSUI) (affiliated to
,Congress)
,(iv) Student Federation of India (SFI) (affiliated to CPM)
,
,6. Religious Organisations
,The organisations based on religion have come to play an
,important role in Indian politics. They represent the narrow
,communal interest. They include:
,(i) Rashtriya Swayam Sevak Sangh (RSS)
,(ii) Vishwa Hindu Parishad (VHP)
,(iii) Jamaat-e-Islami
,(iv) Ittehad-ul-Mussalmeen
,(v) Anglo-Indian Association
,(vi) Associations of the Roman Catholics
,(vii) All-India Conference of Indian Christians (viii) Parsi Central
,Association
,(ix) Shiromani Akali Dal
,“The Shiromani Akali Dal should be regarded as more of a
,religious pressure group rather than a political party in view of the
,fact that it has been concerned more with the mission of saving
,the sikh community from being absorbed into the ocean of hindu
,society than with fighting for the cause of a sikh homeland”2 .
,
,7. Caste Groups
,"Like religion, caste has been an important factor in Indian politics."
,The competitive politics in many states of the Indian Union is in
,fact the politics of caste rivalries: Brahmin versus Non-Brahmin in
,"Tamil Nadu and Maharashtra, Rajput versus Jat in Rajasthan,"
,"Kamma versus Reddy in Andhra, Ahir versus Jat in Haryana,"
,Baniya Brahmin versus Patidar in Gujarat. Kayastha versus
,"Rajput in Bihar, Nair versus Ezhava in Kerala and Lingayat versus"
,Okkaliga in Karnataka3. Some of the caste-based organisations
,are:
,(i) Nadar Caste Association in Tamil Nadu
,(ii) Marwari Association
,(iii) Harijan Sevak Sangh
,(iv) Kshatriya Maha Sabha in Gujarat
,(v) Vanniyakul Kshatriya Sangam
,(vi) Kayastha Sabha
,
,8. Tribal Organisations
,"The tribal organisations are active in MP, Chattisgarh, Bihar,"
,"Jharkhand, West Bengal and the North Eastern States of Assam,"
,"Manipur, Nagaland and so on. Their demands range from reforms"
,to that of secession from India and some of them are involved in
,insurgency activities. The tribal organisations include:
,(i) National Socialist Council of Nagaland (NSCN)
,(ii) Tribal National Volunteers (TNU) in Tripura
,(iii) People’s Liberation Army in Manipur
,(iv) All-India Jharkhand
,(v) Tribal Sangh of Assam
,(vi) United Mizo Federal Organisation
,
,9. Linguistic Groups
,Language has been so important factor in Indian politics that it
,became the main basis for the reorganisation of states. The
,"language along with caste, religion and tribe have been"
,responsible for the emergence of political parties as well as
,pressure groups. Some of the linguistic groups are:
,(i) Tamil Sangh
,(ii) Anjuman Tarraki-i-Urdu
,(iii) Andhra Maha Sabha
,(iv) Hindi Sahitya Sammelan
,(v) Nagari Pracharani Sabha
,(vi) Dakshina Bharat Hindi Prachar Sabha
,
,10. Ideology Based Groups
,"In more recent times, the pressure groups are formed to pursue a"
,"particular ideology, i.e., a cause, a principle or a programme."
,These groups include:
,(i) Environmental protection groups like Narmada Bachao
,"Andolan, and Chipko Movement"
,(ii) Democratic rights organisations
,(iii) Civil liberties associations
,(iv) Gandhi Peace Foundation
,(v) Woman rights organisations
,
,11. Anomic Groups
,Almond and Powell observed: “By anomic pressure groups we
,mean more or less a spontaneous breakthrough into the political
,"system from the society such as riots, demonstrations,"
,assassinations and the like. The Indian Government and
,"bureaucratic elite, overwhelmed by the problem of economic"
,"development and scarcity of resources available to them,"
,"inevitably acquires a technocratic and anti-political frame of mind,"
,particularistic demands of whatever kinds are denied legitimacy.
,As a consequence interest groups are alienated from the political
,system”4. Some of the anomic pressure groups are:
,(i) All-India Sikh Student’s Federation.
,(ii) Nava Nirman Samithi of Gujarat.
,(iii) Naxalite Groups.
,(iv) Jammu and Kashmir Liberation Front (JKLF).
,(v) All Assam Student’s Union.
,(vi) United Liberation Front of Assam (ULFA).
,(vii) Dal Khalsa.
,
,
,NOTES AND REFERENCES
,"1. G.A. Almond and G.B. Coleman (eds), The Politics of"
,"the Developing Areas, Princeton, (1970), P. 185."
,"2. J.C. Johari: Indian Government and Politics, Vishal,"
,"Thirteenth Edition, P. 591."
,3. Paul Kolenda: Caste in India since Independence (in
,Social and Economic Development in India by Basu and
,"   Sission, P. 110)."
,"4. G.A. Almond and G.B. Powell: Comparative Politics,"
,"1972, P. 75–76."
, 78      National Integration
,
,
,
,
,I
,"ndia is a land of widespread diversities in terms of religion,"
,"language, caste, tribe, race, region and so on. Hence, the"
,achievement of national integration becomes very essential for
,the all-around development and prosperity of the country.
, MEANING OF NATIONAL INTEGRATION
,
,Definitions and statements on national integration:
,“National integration implies avoidance of divisive movements
,that would balkanise the nation and presence of attitudes
,throughout the society that give preference to national and public
,interest as distinct from parochial interests”1 Myron Weiner.
,“National integration is a socio-psychological and educational
,"process through which a feeling of unity, solidarity and cohesion"
,develops in the hearts of the people and a sense of common
,citizenship or feeling of loyalty to the nation is fostered among
,them”2 HA Gani.
,“National integration is not a house which could be built by
,mortar and bricks. It is not an industrial plan too which could be
,"discussed and implemented by experts. Integration, on the"
,"contrary, is a thought which must go into the heads of the people."
,It is the consciousness which must awaken the people at large”
,Dr. S. Radhakrishna.
,"“National integrations means, and ought to mean, cohesion not"
,"fusion, unity but not uniformity, reconciliation but not merger,"
,agglomeration but not assimilation of the discrete segments of the
,people constituting a political community or state”3 Rasheeduddin
,Khan.
,"To sum-up, the concept of national integration involves political,"
,"economic, social, cultural and psychological dimensions and the"
,inter-relations between them.
, OBSTACLES TO NATIONAL INTEGRATION
,Among the major obstacles to national integration include:
,
,1. Regionalism
,Regionalism refers to sub-nationalism and sub-territorial loyalty. It
,implies the love for a particular region or state in preference to the
,"country as a whole. There is also subregionalism, that is, love for"
,a particular region in preference to the state of which the region
,forms a part.
,Regionalism is “a subsidiary process of political integration in
,India. It is a manifestation of those residual elements which do not
,"find expression in the national polity and national culture, and"
,"being excluded from the centrality of the new polity, express"
,themselves in political discontent and political exclusionism”4 .
,Regionalism is a country-wide phenomenon which manifests
,itself in the following six forms:
,(i) Demand of the people of certain states for secession from the
,"Indian Union (like Khalistan, Dravid Nad, Mizos, Nagas and"
,so on).
,(ii) Demand of the people of certain areas for separate statehood
,"(like    Telengana,      Bodoland,   Uttarkhand,     Vidharbha,"
,Gorkhaland and so on).
,(iii) Demand of people of certain Union Territories for full-fledged
,"statehood (like Manipur, Tripura, Puducherry, Delhi, Goa,"
,Daman and Diu and so on).
,(iv) Inter-state boundary disputes (like Chandigarh and Belgaum)
,"and riverwater disputes (like Cauvery, Krishna, Ravi-Beas and"
,so on).
,(v) Formation of organisations with regional motives which
,advocates a militant approach in pursuing its policies and
,"goals (like Shiv Sena, Tamil Sena, Hindi Sena, Sardar Sena,"
,Lachit Sena and so on).
,(vi) ‘Sons of the soil theory’ which advocates preference to local
,"people in government jobs, private jobs, permits and so on."
,"    Their slogan will be Assam for Assamese, Maharashtra for"
,Maharashtrians and so on.
,
,2. Communalism
,Communalism means love for one’s religious community in
,preference to the nation and a tendency to promote the communal
,interest at the cost of the interest of other religious communities. It
,"has its roots in the British rule where the 1909, 1919 and 1935"
,"Acts had introduced communal representation for the Muslims,"
,Sikhs and others.
,The communalism got accentuated with the politicisation of
,religion. Its various manifestations are:
,"(i) Formation of political parties based on religion (like Akali Dal,"
,"Muslim League, Ram Rajya Parishad, Hindu Mahasabha,"
,Shiv Sena and so on).
,(ii) Emergence of pressure groups (nonpolitical entities) based
,"on religion (like RSS, Vishwa Hindu Parishad, Jamaat-e-"
,"Islami, Anglo-Indian Christians Association and so on)."
,"(iii) Communal riots (between Hindus and Muslims, Hindus and"
,"Sikhs, Hindus and Christians and so on–Benaras, Lucknow,"
,"Mathura,     Hyderabad,      Allahabad,      Aligarh,   Amritsar,"
,Moradabad and some other places are affected by communal
,violence).
,"(iv) Dispute over religious structures like temples, mosques and"
,others (The dispute over Ram Janma Bhoomi in Ayodhya
,where the kar sevaks had demolished a disputed structure on
,"December 6, 1992)."
,The reasons for the persistence of com-munalism include
,"religious orthodoxy of muslims, role of Pakistan, hindu"
,"chauvinism, government’s inertia, role of political parties and other"
,"groups, electoral compulsions, communal media, socio-economic"
,factors and so on.
,
,3. Casteism
,Casteism implies love for one’s own caste-group in preference to
,the general national interest. It is mainly an outcome of the
,politicisation of caste. Its various manifestations include:
,  (i) Formation of political parties on the basis of caste (like
,"Justice Party in Madras, DMK, Kerala Congress, Republican"
,"Party, Bahujan Samaj Party and so on)."
,(ii) Emergence of pressure groups (nonpolitical entities) based
,"on caste (like Nadar Association, Harijan Sevak Sangh,"
,Kshatriya Mahasabha and so on).
,(iii) Allotment of party tickets during elections and the formation of
,council of ministers in the states on caste lines.
,(iv) Caste conflicts between higher and lower castes or between
,"dominant castes in various states like Bihar, Uttar Pradesh,"
,Madhya Pradesh and so on.
,(v) Violent disputes and agitations over the reservation policy.
,B.K. Nehru observed: “The communal electorates (of the British
,days) in a vestigal form still remain in the shape of reservations for
,the Scheduled Castes and Scheduled Tribes. They serve to
,emphasise caste origin and make people conscious of the caste
,in which they were born. This is not conducive to national
,integration”5 .
,"At the state level, the politics is basically a fight between the"
,"major caste groups like Kamma versus Reddy in Andhra Pradesh,"
,"Lingayat versus Vokaligga in Karnataka, Nayar versus Ezhava in"
,"Kerala, Bania versus Patidar in Gujarat, Bhumiar versus Rajput in"
,"Bihar, Jat versus Ahir in Haryana, Jat versus Rajput in Uttar"
,"Pradesh, Kalita versus Ahom in Assam and so on."
,
,4. Linguism
,Linguism means love for one’s language and hatred towards other
,"language-speaking people. The phenomena of linguism, like that"
,"of regionalism, communalism or casteism, is also a consequence"
,of political process. It has two dimensions: (a) the reorganisation
,of states on the basis of language; and (b) the determination of
,the official language of the Union.
,The creation of the first linguistic state of Andhra out of the then
,Madras state in 1953 led to the countrywide demand for the
,"reorganisation of states on the basis of language. Consequently,"
,the states were reorganised on a large-scale in 1956 on the basis
,of the recommendations made by the States Reorganisation
,"Commission6 (1953–1955). Even after this, the political map of"
,India underwent a continuous change due to the pressure of
,"popular agitations and the political conditions, which resulted in"
,"the bifurcation of existing states like Bombay, Punjab, Assam, and"
,"so on. By the end of 2000, the number of states and union"
,territories had reached 28 and 7 from that of 14 and 6 in 1956
,respectively7 .
,The enactment of the Official Language Act (1963) making
,Hindi as the Official Language of the Union led to the rise of anti-
,"Hindi agitation in South India and West Bengal. Then, the Central"
,government assured that English would continue as an ‘associate’
,official language so long as the non-Hindi speaking states desire
,"it. Moreover, the three-language formula (English, Hindi and a"
,regional language) for school system is still not being
,"implemented in Tamil Nadu8. Consequently, Hindi could not"
,emerge as the lingua franca of the composite culture of India as
,desired by the framers of the Constitution.
,The problem of linguism got accentuated with the rise of some
,"regional parties in recent times like the TDP, AGP, Shiv Sena and"
,so on.
, NATIONAL INTEGRATION COUNCIL
,
,"The National Integration Council (NIC) was constituted in 1961,"
,following a decision taken at a national conference on ‘unity in
,"diversity’, convened by the Central government, at New Delhi. It"
,"consisted of the prime minister as chairman, central home"
,"minister, chief ministers of states, seven leaders of political"
,"parties, the chairman of the UGC, two educationists, the"
,commissioner for SCs and STs and seven other persons
,nominated by the prime minister. The council was directed to
,examine the problem of national integration in all its aspects and
,make necessary recommendations to deal with it. The council
,"made various recommendations for national integration. However,"
,these recommendations remained only on paper and no effort
,was made either by the Centre or by the states to implement
,them.
,"In 1968, the Central government revived the National"
,Integration Council. Its size was increased from 39 to 55
,"members. The representatives of industry, business and trade"
,unions were also included in it. The council met at Srinagar and
,adopted a resolution condemning all tendencies that struck at the
,"root of national solidarity. It appealed to the political parties,"
,organisations and the press to mobilise the constructive forces of
,society in the cause of national unity and solidarity. It also set up
,"three committes to report on regionalism, communalism and"
,"linguism respectively. However, nothing tangible was achieved."
,"In 1980, the Central government again revived the National"
,Integration Council which had become defunct. Its membership
,was made more broad-based. It had three items on the agenda
,"for discussion viz., the problem of communal harmony, unrest in"
,the north-eastern region and need for a new education system.
,The council set up a standing committee to keep a constant watch
,on the activities of communal and other divisive forces posing a
,threat to the national unity.
,"In 1986, the NIC was reconstituted and its membership was"
,further increased. It recognised terrorism in Punjab as an attack
,"on the unity, integrity and secular ideals of the country."
,"Accordingly, it passed a resolution to fight terrorism in Punjab. The"
,council also set up a 21-member committee to function on a
,continuing basis. The committee was asked to formulate both
,short-term as well as long-term proposals for maintaining
,communal harmony and preserving national integrity.
,"In 1990, the National Front Government headed by V.P. Singh"
,reconstituted the National Integration Council. Its strength was
,"increased to 101. It included prime minister as chairman, some"
,"Central ministers, state chief ministers, leaders of national and"
,"regional parties, representatives of women, trade and industry,"
,"academicians, journalists and public figures. It had various items"
,"on the agenda for discussion, viz., Punjab problem, Kashmir"
,"problem, violence by secessionists, communal harmony and Ram"
,"Janmabhomi-Babri Masjid problem at Ayodhya. But, there was no"
,concrete result.
,"In 2005, the United Progressive Alliance (UPA) Government"
,reconstituted the National Integration Council under the
,"chairmanship of the Prime Minister, Manmohan Singh. The 103-"
,member NIC was constituted after a gap of 12 years having held
,"its meeting in 1992. Besides some central ministers, state and UT"
,"chief ministers and leaders of national and regional parties, the"
,"NIC included chairpersons of National Commissions, eminent"
,"public figures and representatives from business, media, labour"
,and women. The NIC was to function as a forum for effective
,"initiative and interaction on issues of national concern, review"
,issues      relating  to    national     integration     and    make
,recommendations.
,The 14th meeting of the NIC was held in 2008 in the backdrop
,"of communal violence in various states like Orissa, Karnataka,"
,"Maharashtra, Jammu and Kashmir and Assam and so on."
,"Promotion of education among minorities, scheduled castes and"
,scheduled tribes; elements contributing to national integration;
,"removal of regional imbalances, caste and identity divisions;"
,prevention of extremism; promotion of communal harmony and
,security among minorities; and equitable development were some
,of the important items on the agenda of the meeting.
,"In April 2010, the United Progressive Alliance (UPA)"
,Government again reconstituted the National Integration Council
,"(NIC) under the chairmanship of the Prime Minister, Manmohan"
,"Singh. The NIC has 147 members, including Union Ministers,"
,"Leaders of the Opposition in the Lok Sabha and the Rajya Sabha,"
,the Chief Ministers of all states and union territories with
,Legislatures. It also includes leaders of national and regional
,"political parties, chairpersons of national commissions, eminent"
,"journalists, public figures, and representatives of business and"
,women’s organisations. It is chiefly aimed at suggesting means
,"and ways to combat the menace of communalism, casteism and"
,regionalism.
,"In October 2010, the Government also constituted a Standing"
,Committee of the NIC. It consists of Union Home Minister as
,"Chairman, four Union Ministers, nine Chief Ministers of various"
,states and five co-opted members from NIC. It would finalise the
,agenda items for NIC meetings.
,"The 15th meeting of the NIC was held in September, 2011. The"
,agenda for the meeting included measures to curb communalism
,and communal violence; approach to the Communal Violence Bill;
,measures to promote communal harmony; measures to eliminate
,"discrimination, especially against minorities and scheduled tribes;"
,how the state and the police should handle civil disturbances; and
,how to curb radicalisation of youth in the name of religion and
,caste.
,The 16th meeting of the NIC was held on 23–09-2013. A
,"Resolution was passed in the meeting to condemn violence, take"
,all measures to strengthen harmonious relationship between all
,"communities, to resolve differences and disputes among the"
,"people within the framework of law, to condemn atrocities on"
,"Scheduled Castes and Scheduled Tribes, to condemn sexual"
,abuse and to ensure that all women enjoy the fruits of freedom to
,pursue their social and economic development with equal
,"opportunities, and to safeguard their right of movement in the"
,public space at any time of the day or night.
,
,Table 78.1 Meetings of the National Integration
,Meeting Number                   Held on
,"First Meeting                    2nd and 3rd June, 1962"
,"Second Meeting       20th to 22nd June, 1968"
,"Third Meeting        12th November, 1980"
,"Fourth Meeting       21st January, 1984"
,"Fifth Meeting        7th April, 1986"
,"Sixth Meeting        12th September, 1986"
,"Seventh Meeting      11th April, 990"
,"Eighth Meeting       22nd September, 1990"
,"Ninth Meeting        2nd November, 1991"
,"Tenth Meeting        31st December, 1991"
,"Eleventh Meeting     18th July, 1992"
,"Twelfth Meeting      23rd November, 1992"
,"Thirteenth Meeting   31st August, 2005"
,"Fourteenth Meeting   13th October, 2008"
,"Fifteenth Meeting    10th September, 2011"
,"Sixteenth Meeting    23rd September, 2013"
, NATIONAL FOUNDATION FOR COMMUNAL
,HARMONY
,
,The National Foundation for Communal Harmony (NFCH) was set
,up in 1992. It is an autonomous body under the administrative
,control of the Union Home Ministry. It promotes communal
,"harmony, fraternity and national integration."
,The vision and mission of the NFCH are as follows:
,Vision: India free from communal and all other forms of violence
,where all citizens especially children and youth live together in
,peace and harmony.
,"Mission: Promoting communal harmony, strengthening national"
,integration and fostering unity in diversity through collaborative
,"social action, awareness programs, reaching out to the victims of"
,"violence especially children, encouraging interfaith dialogue for"
,"India’s shared security, peace and prosperity."
,The activities undertaken by the NFCH are mentioned below:
,1. To provide financial assistance to the child victims of societal
,"violence for their care, education and training, aimed at their"
,effective rehabilitation
,2. To promote communal harmony and national integration by
,organising variety of activities either independently or in
,"association with educational institutions, NGOs & other"
,organisations
,3. To conduct studies and grant scholarships to institutions /
,scholars for conducting studies
,4. To confer awards for outstanding contribution to communal
,harmony and national integration
,"5. To involve Central / state governments / UT Administrations,"
,"industrial / commercial organisations, NGOs and others in"
,promoting the objectives of the Foundation
,"6. To provide information services, publish monographs and"
,"books, etc. on the subject"
,
,
,NOTES AND REFERENCES
,1. Myron Weiner: Politics of Scarcity: Public Pressure and
,"Political Response in India, 1963."
,2. H.A. Gani: Muslim Political Issues and National
,"Integration, P. 3."
,3. Rasheeduddin Khan: National Integration and
,"Communal Harmony (in National Integration of India,"
,"Volume II, Edited by Sinha)."
,4. Kousar J. Azam: Political Aspects of National
,"Integration, P. 82."
,5. B.K. Nehru: The Indira Gandhi Memorial Lectures
,"delivered at the University of Kerala in January, 1988."
,6. It was a three-member commission headed by Fazl Ali.
,Its other two members were K.M. Panikkar and H.N.
,Kunzru.
,"7. In 2000, three more new states of Chhattisgarh,"
,Uttarakhand and Jharkhand were created out the
,"territories of Madhya Pradesh, Uttar Pradesh and Bihar"
,respectively.
,8. Tamil Nadu Government opposed the three language
,"formula and continued to teach only two languages, that"
,"is, English and Tamil in the educational institutions of"
,the state.
, 79       Foreign Policy
,
,
,
,
,T
,he foreign policy of India regulates India’s relations with
,other states of the world in promoting its national interests.
,"It is determined by a number of factors, viz., geography,"
,"history and tradition, social structure, political organisation,"
,"international milieu1 , economic position, military strength, public"
,opinion and leadership.
, PRINCIPLES OF INDIAN FOREIGN POLICY
,
,1. Promotion of World Peace
,India’s foreign policy aims at the promotion of international peace
,and security. Article 51 of the Constitution (Directive Principles of
,State Policy) directs the Indian State to promote international
,"peace and security, maintain just and honourable relations"
,"between nations, foster respect for international law and treaty"
,"obligations, and encourage settlement of international disputes by"
,arbitration. Besides peace is necessary to promote the economic
,development of nations. Jawaharlal Nehru said: “Peace to us is
,not just a fervent hope; it is emergent necessity”.
,
,2. Anti-Colonialism
,The foreign policy of India opposes colonialism and imperialism.
,India views that the colonialism and imperialism leads to
,exploitation of the weaker nations by the imperialist powers and
,affects the promotion of international peace. India advocated the
,liquidation of colonialism in all forms and supported the liberation
,"movement in Afro-Asian countries like Indonesia, Malaya, Tunisia,"
,"Algeria, Ghana, Namibia and so on. Thus, India expressed her"
,solidarity with the people of Afro-Asian nations in their struggle
,"against colonial and imperialist forces like Britain, France,"
,"Holland, Portugal and so on. The present neo-colonialism and"
,neo-imperialism is also opposed by India.
,
,3. Anti-Racialism
,Opposition to racialism in all its forms is an important aspect of
,"Indian foreign policy. According to India, racialism (i.e.,"
,"discrimination between people on the basis of race), like"
,"colonialism and imperialism, leads to exploitation of the blacks by"
,"the whites, social inequity and hinders the promotion of world"
,peace. India strongly criticised the policy of apartheid (racial
,discrimination) being followed by the white minority racist regime
,of South Africa. It even snapped diplomatic relations with South
,Africa in 1954 as a protest against the policy of apartheid2.
,"Similarly, India played an important role in the liberation of"
,Zimbabwe (earlier Rhodesia) and Namibia from the white
,domination.
,
,4. Non-Alignment
,"When India became independent in 1947, the world was divided"
,"into two blocs on ideological basis, namely, the capitalist bloc"
,headed by USA and the communist bloc headed by the former
,"USSR. In such a situation of ‘cold war’, India refused to join any of"
,these two blocs and adopted a policy of non-alignment. In this
,"context, Jawaharlal Nehru observed: “We propose to keep away"
,"from the power politics of groups, aligned against one another,"
,which have led in the past to world wars and which may again
,lead to disasters on an even vaster scale. I feel that India can play
,"a big part, and perhaps an effective part, in helping to avoid war."
,"Therefore, it becomes all the more necessary that India should not"
,be lined up with any group of power which for various reasons are
,full of fear of war and prepare for war”.
,"“When we say that India follows a policy of non-alignment, it"
,means (i) that India has no military alliances with countries of
,either bloc or indeed with any nation; (ii) India has an independent
,approach to foreign policy; and (iii) India attempts to maintain
,friendly relations with all countries”3 .
,
,5. Panchsheel
,Panchsheel implies the five principles of conduct in international
,relations. It was embodied in the Preamble of the Indo-China
,"Treaty on Tibet, signed in 1954 by Jawaharlal Nehru and Chou-"
,"En-Lai, the Chinese Premier. The five principles were:"
,(i) mutual respect for each other’s territorial integrity and
,sovereignty;
,(ii) non-aggression;
,(iii) non-interference in each other’s internal affairs;
,(iv) equality and mutual benefit; and
,(v) peaceful co-existence.
,   “India perceived the ‘Panchsheel’ as productive of peaceful
,cooperation of sovereign nations instead of the balance of terror
,"and the degrading cold war tensions, being brought about by the"
,rival great power pacts and alliances. India explained it as based
,on the concept of universalism as against the concept of the
,balance of power”4 .
,Panchsheel became very popular and many countries of the
,"world like Burma, Yugoslavia, Indonesia and so on adopted it."
,Panchsheel and non-alignment are the greatest contributions of
,India to the theory and practice of international relations.
,
,6. Afro-Asian Bias
,Even though the foreign policy of India stands for maintaining
,"friendly relations with all the countries of the world, it has always"
,exhibited a special bias towards the Afro-Asian nations. It aims at
,promoting unity among them and tries to secure for them a voice
,and an influence in the international bodies. India has been
,seeking international assistance for the economic development of
,"these countries. In 1947, India called the first Asian Relations"
,"Conference in New Delhi. In 1949, India brought together the"
,Asian countries on the burning issue of Indonesian freedom. India
,played an active role in the Afro-Asian Conference at Bandung
,(Indonesia) in 1955. India also played an important role in the
,"formation of Group of 77 (1964), Group of 15 (1990), Indian"
,"Ocean Rim Association for Regional Cooperation (1995), BIST"
,"Economic Cooperation (1997), and SAARC (1985). India earned"
,the name of ‘Big Brother’ from many of the neighbouring
,countries.
,
,7. Links with Commonwealth
,"In 1949 itself, India declared the continuation of her full"
,membership of the Commonwealth of the Nations and the
,acceptance of the British Crown as the head of the
,"Commonwealth. But, this extra-constitutional declaration does not"
,affect India’s sovereignty in any manner as the Commonwealth is
,a voluntary association of independent nations. It also does not
,affect India’s republican character as India neither pays final
,allegiance to the British Crown nor the latter has any functions to
,discharge in relation to India.
,India remained a member of the Commonwealth because of
,pragmatic reasons. It thought that the membership in the
,"Commonwealth would be beneficial to her in the economic,"
,"political, cultural and other spheres. It has been playing an"
,important role at the CHOGM (Commonwealth Heads of
,Governments Meet). India hosted the 24th Commonwealth
,Summit at New Delhi in 1983.
,
,8. Support to the UNO
,"India became a member of the UNO in 1945 itself. Since then, it"
,has been supporting the activities and programmes of UNO. It has
,expressed full faith in the objectives and principles of UNO. Some
,of the facets of India’s role in UNO are:
,(i) It is through the UNO that India embarked on the policy of
,"fighting against the colonialism, imperialism and racialism,"
,and now neo-colonialism and neo-imperialism.
,"(ii) In 1953, Vijay Lakshmi Pandit of India was elected as the"
,President of the UN General Assembly.
,(iii) India actively participated in the UN Peace-keeping missions
,"in Korea, Congo, El Salvador, Combodia, Angola, Somalia,"
,"Mozambique, Sierra Leone, Yugoslavia and so on."
,(iv) India continued to participate actively in the open ended
,working groups of the UNO. India was the Co-chairman of the
,working group on the strengthening of the UN which
,submitted its report in 1997.
,"(v) Several times, India has been a nonpermanent member of"
,"the UN Security Council. Now, India is demanding a"
,permanent seat in the Security Council.
,
,9. Disarmament
,The foreign policy of India is opposed to arms race and advocates
,"disarmament, both conventional and nuclear. This is aimed at"
,promoting world peace and security by reducing or ending
,tensions between power blocs and to accelerate economic
,development of the country by preventing the unproductive
,expenditure on the manufacture of arms. India has been using the
,UNO platform to check the arms race and to achieve
,disarmament. India took the initiative of holding a six-nation
,summit at New Delhi in 1985 and made concrete proposals for
,nuclear disarmament.
,By not signing the Nuclear Nonproliferation Treaty (NPT) of
,"1968 and the Comprehensive Test Ban Treaty (CTBT) of 1996,"
,India has kept its nuclear options open. India opposes NPT and
,CTBT due to their discriminatory and hegemonistic nature. They
,perpetuate an international system in which only five nations
,"(USA, Russia, China, UK and France) can legitimately posses"
,nuclear weapons.
, OBJECTIVES OF INDIAN FOREIGN POLICY
,
,India’s foreign policy is directed towards the realisation of the
,following objectives5 :
,1. To protect India’s core national interests and concerns in a
,rapidly changing international environment by fostering
,support and understanding in the international community.
,2. To preserve the autonomy of the decision making process
,and to play a pioneering role in the establishment of a
,"stable, prosperous and secure global order."
,3. To strengthen the international campaign against terrorism
,which is a global threat.
,4. To build an international environment which is supportive of
,"India’s rapid economic growth including higher investments,"
,"trade, access to technology and strengthening India’s"
,energy security.
,5. To work closely with P-5 countries and to build strategic ties
,"with the major powers such as the USA, the EU, Japan,"
,"Russia, and China."
,6. To intensify and strengthen ties with neighbours through
,mutually beneficial cooperation and by acknowledgement of
,each other’s legitimate concerns.
,7. To work for the realisation of SAARC as an economically
,integrated region at peace with itself and engaged with the
,world.
,8. To ensure that cross-border terrorism is brought to an end
,and the entire infrastructure of terrorism operating from
,Pakistan is dismantled.
,9. To further the gains from India’s ‘Act East’ Policy (erstwhile
,‘Look East’ Policy) and aspire for substantive progress in
,several areas of common interest to India and ASEAN.
,10. To strengthen our ties with the countries of the Gulf region
,that has become home to over 4 million Indians and is a
,major source of supply of oil and gas.
,11. To leverage economic growth through support to the
,activities of regional organisations like the Bay of Bengal
,Initiative for Multi-Sectoral Technical and Economic
,"      Cooperation (BIMSTEC), Mekong-Ganga Cooperation and"
,"trans-regional groupings like the India, Brazil and South"
,Africa (IBSA) Initiative and Indian Ocean Rim Association for
,Regional Cooperation (IOR-ARC).
,12.    To continue to work closely with regional groupings like the
,EU and G-20 for furthering India’s interests in the
,international arena.
,13.    To reform and restructure the UN Security Council and
,espouse multi-polarity in a world order that respects the
,principles of sovereignty and non-intervention.
,14.    To promote a more equitable equation between the
,"developed and the developing world in the political,"
,economic and technological domains.
,15.    To work towards the goal of global nuclear disarmament
,within a timebound framework.
,16.    To closely interact with the Indian diaspora on a continuing
,basis in order to strengthen their bonds with India and to
,recognise their pivotal role in India’s international relations.
, GUJRAL DOCTRINE OF INDIA
,
,The Gujral Doctrine is a milestone in India’s foreign policy. It was
,"propounded and initiated in 1996 by I.K. Gujral, the then Foreign"
,Minister in the Deve Gowda Government.
,"The doctrine advocates that India, being the biggest country in"
,"South Asia, should extend unilateral concessions to the smaller"
,"neighbours. In other words, the doctrine is formulated on India’s"
,accommodating approach towards its smaller neighbours on the
,basis of the principle of non-reciprocity. It recognises the supreme
,importance of friendly and cordial relations with India’s
,neighbours.
,The doctrine is a five-point roadmap to guide the conduct of
,India’s foreign relations with its immediate neighbours. These five
,principles are as follows:
,"1. With the neighbours like Bangladesh, Bhutan, Maldives,"
,"Nepal and Sri Lanka, India should not ask for reciprocity, but"
,give to them what it can in good faith.
,2. No South Asian country should allow its territory to be used
,against the interest of another country of the region.
,3. No country should interfere in the internal affairs of another
,country.
,4. All South Asian countries should respect each other’s
,territorial integrity and sovereignty.
,5. All South Asian countries should settle all their disputes
,through peaceful bilateral negotiations.
,Gujral himself explained: “The logic behind the Gujral Doctrine
,was that since we had to face two hostile neighbours in the north
,"and the west, we had to be at ‘total peace’ with all other"
,immediate neighbours in order to contain Pakistan’s and China’s
,influence in the region.”
, NUCLEAR DOCTRINE OF INDIA
,
,India adopted its nuclear doctrine in 2003. The salient features of
,this doctrine are as follows:
,1. Building and maintaining a credible minimum deterrent.
,2. A posture of “No First Use” - nuclear weapons will only be
,used in retaliation against a nuclear attack on Indian territory
,or on Indian forces anywhere.
,3. Nuclear retaliation to a first strike will be massive and
,designed to inflict unacceptable damage.
,4. Nuclear retaliatory attacks can only be authorised by the
,civilian political leadership through the Nuclear Command
,Authority.
,5. Non-use of nuclear weapons against nonnuclear weapon
,states.
,"6. However, in the event of a major attack against India, or"
,"Indian forces anywhere, by biological or chemical weapons,"
,India will retain the option of retaliating with nuclear
,weapons.
,7. A continuance of strict controls on export of nuclear and
,"missile related materials and technologies, participation in"
,"the Fissile Material Cutoff Treaty negotiations, and continued"
,observance of the moratorium on nuclear tests.
,8. Continued commitment to the goal of a nuclear-weapon-free
,"world, through global, verifiable and non-discriminatory"
,nuclear disarmament.
,The Nuclear Command Authority comprises a Political Council
,and an Executive Council. The Political Council is chaired by the
,Prime Minister. It is the sole body which can authorise the use of
,nuclear weapons.
,The Executive Council is chaired by the National Security
,Advisor. It provides inputs for decision making by the Nuclear
,Command Authority and executes the directives given to it by the
,Political Council.
,The Cabinet Committee on Security (CCS) reviewed the
,progress in the operationalising of India’s nuclear doctrine. The
,"CCS reviewed the existing command and control structures, the"
,"state of readiness, the targeting strategy for a retaliatory attack,"
,and operating procedures for various stages of alert and launch.
,The CCS expressed satisfaction with the overall preparedness.
,"The CCS approved the appointment of a Commander-in-Chief,"
,"Strategic Forces Command, to manage and administer all"
,Strategic Forces. The CCS also reviewed and approved the
,arrangements for alternate chains of command for retaliatory
,nuclear strikes in all eventualities.
, CONNECT CENTRAL ASIA POLICY OF INDIA
,
,India launched the “Connect Central Asia” Policy in 2012. This
,policy is aimed at strengthening and expanding of India’s relations
,with the Central Asian countries. These countries include
,"Kazakhstan,       Kyrgyzstan,      Tajikistan,    Turkmenistan   and"
,Uzbekistan.
,India’s “Connect Central Asia” policy is a broad-based
,"approach including political, security, economic and cultural"
,connections. Its features (or elements) are as follows6 :
,1. India will continue to build on its strong political relations
,through the exchange of high level visits. India’s leaders will
,continue to interact closely both in bilateral and multilateral
,fora.
,2. India will strengthen its strategic and security cooperation.
,India already has strategic partnerships with some Central
,"Asian countries. The focus will be on military training, joint"
,"research, counter-terrorism coordination and close"
,consultations on Afghanistan.
,3. India will step up multilateral engagement with Central Asian
,partners using the synergy of joint efforts through existing
,"fora like the SCO, Eurasian Economic Community (EEC)"
,and the Custom Union. India has already proposed a
,Comprehensive Economic Cooperation Agreement to
,integrate its markets with the unifying Eurasian space.
,"4. India looks to Central Asia as a longterm partner in energy,"
,and natural resources. Central Asia possesses large
,cultivable tracts of land and there is potential for India to
,cooperate in production of profitable crops with value
,addition.
,5. The medical field is another area that offers huge potential
,for cooperation. India is ready to extend cooperation by
,setting up civil hospitals/clinics in Central Asia.
,6. India’s higher education system delivers at a fraction of the
,"fees charged by Western universities. Keeping this in mind,"
,India would like to assist in the setting up of a Central Asian
,University in Bishkek that could come up as a centre of
,"      excellence to impart world class education in areas like IT,"
,"management, philosophy and languages."
,7.   India is working on setting up a Central Asian e-network with
,"its hub in India, to deliver, tele-education and tele-medicine"
,"connectivity, linking all the five Central Asian States."
,8.   Indian companies can showcase India’s capability in the
,construction sector and build world class structures at
,"competitive rates. Central Asian countries, especially"
,"Kazakhstan, have almost limitless reserves of iron ore and"
,"coal, as well as abundant cheap electricity. India can help"
,"set up several medium size steel rolling mills, producing its"
,requirement of specific products.
,"9.   As for land connectivity, India has reactivated the"
,International North-South Transport Corridor (INSTC). There
,is a need to discuss ways to bridge the missing links in the
,Corridor at the earliest and also work on other connecting
,spurs along the route.
,10.    Absence of a viable banking infrastructure in the region is a
,major barrier to trade and investment. Indian banks can
,expand their presence if they see a favourable policy
,environment.
,11.   India and Central Asian nations will jointly work to improve
,air connectivity between them. India is one of the biggest
,markets for outbound travelers estimated at USD 21 billion
,in 2011. Many countries have opened tourist offices in India
,to woo Indian tourists. Central Asian countries could emerge
,as attractive holiday destinations for tourists and even for the
,Indian film industry which likes to depict exotic foreign
,locales in its films.
,12.    Connections between the people are the most vital linkages
,to sustain the deep engagement. There is particularly need
,to emphasise exchanges between youth and the future
,leaders of India and Central Asia. There is already a robust
,exchange of students. India and Central Asian nations will
,"encourage regular exchanges of scholars, academics, civil"
,society and youth delegations to gain deeper insights into
,each other’s cultures.
,   India’s “Connect Central Asia” policy is consonant with its
,"overall policy of deepening engagement in Eurasia, its policy of"
,"strengthening relations with China, with Pakistan, and building on"
,its traditional relationship with Russia. India hopes that its
,"membership in numerous regional forums including at the SCO,"
,would bolster India’s renewed linkages with the region.
, ACT EAST POLICY OF INDIA
,
,"In 2014, the Modi Government upgraded India’s “Look East"
,Policy” and re-named it as the “Act East Policy”. The “Look East
,Policy” was first initiated in 1992 by the then Prime Minister P.V.
,Narasimha Rao.
,"While addressing the India-ASEAN Summit (2014), the Prime"
,Minister Narendra Modi said : “A new era of economic
,"development, industrialization and trade has begun in India."
,"Externally, India’s ‘Look East Policy’ has become ‘Act East"
,"Policy’”. Similarly, the External Affairs Minister Sushma Swaraj,"
,"during her visit to Vietnam in 2014, told Indian envoys to ‘Act East’"
,and not just ‘Look East’.
,The features (or elements) of India’s “Act East Policy” are as
,follows7 :
,1. India’s Act East Policy focusses on the extended
,neighbourhood in the Asia-Pacific region. The policy which
,"was originally conceived as an economic initiative, has"
,"gained political, strategic and cultural dimensions including"
,establishment of institutional mechanisms for dialogue and
,cooperation.
,2. India has upgraded its relations to strategic partnership with
,"Indonesia, Vietnam, Malaysia, Japan, Republic of Korea,"
,"Australia, Singapore and Association of Southeast Asian"
,Nations (ASEAN) and forged close ties with all countries in
,the Asia-Pacific region.
,"3. Further, apart from ASEAN, ASEAN Regional Forum (ARF)"
,"and East Asia Summit (EAS), India has also been actively"
,engaged in regional fora such as Bay of Bengal Initiative for
,Multi-Sectoral Technical and Economic Cooperation
,"(BIMSTEC), Asia Cooperation Dialogue (ACD), Mekong"
,Ganga Cooperation (MGC) and Indian Ocean Rim
,Association (IORA).
,4. Act East Policy has placed emphasis on India-ASEAN
,"cooperation in our domestic agenda on infrastructure,"
,"manufacturing, trade, skills, urban renewal, smart cities,"
,"Make in India and other initiatives. Connectivity projects,"
,"      cooperation in space, S&T and people-to-people exchanges"
,could become a springboard for regional integration and
,prosperity.
,5.   The objective of ‘’Act East Policy” is to promote economic
,"cooperation, cultural ties and develop strategic relationship"
,with countries in the Asia-Pacific region through continuous
,"engagement at bilateral, regional and multilateral levels"
,thereby providing enhanced connectivity to the States of
,North Eastern Region including Arunanchal Pradesh with
,other countries in our neighbourhood.
,6.   The North East of India has been a priority in our Act East
,Policy. The policy provides an interface between North East
,India including the state of Arunachal Pradesh and the
,ASEAN region.
,7.   Various plans at bilateral and regional levels include steady
,efforts to develop and strengthen connectivity of Northeast
,"with the ASEAN region through trade, culture, people-to-"
,"people contacts and physical infrastructure (road, airport,"
,"telecommunication, power, etc.)."
,"8.   On the Civilizational front, Buddhist and Hindu links are"
,being energized to develop new contacts and connectivity
,between people.
,"9.   On Connectivity, special efforts are being made to develop a"
,"coherent strategy, particularly for linking ASEAN with North"
,"East India. Measures, including building transport"
,"infrastructure, encouraging airlines to enhance connectivity"
,"in the region, contacts between academic and cultural"
,institutions are underway.
,10.    India’s economic engagement with ASEAN has been
,stepped up - regional integration and implementation of
,projects are priorities. The ASEAN-India Agreement on
,Trade in Service and Investments has entered into force for
,India and seven ASEAN countries from 1 July 2015.
,"11.   On strategic issues, India has increased convergence on"
,security interests with key partners both in bilateral and
,multilateral format. Closer cooperation in combating
,"terrorism, collaborating for peace and stability in the region"
,  and promotion of maritime security based on international
,norms and laws are being pursued.
,
,
,NOTES AND REFERENCES
,"1. It includes world political climate, world public opinion"
,and world organisations.
,2. India again re-established full diplomatic relations with
,South Africa in 1994 when the policy of racial
,discrimination was finally given up and democratic
,government under Nelson Mandela came into
,existence.
,"3. A.S. Narang: Indian Government and Politics, Gitanjali,"
,"2000 Edition, p. 602."
,4. D.N. Mallik: The Development of Non-Alignment in
,"India’s Foreign Policy, p. 165."
,"5. India 2009: A Reference Manual, Publications Division,"
,"Government of India, p. 530."
,6. Based on Keynote address delivered by Minister of
,"State for External Affairs, E. Ahamed, at the first India-"
,"Central Asia Dialogue, June 12, 2012 at Bishkek,"
,Kyrgyzstan.
,"7. Press Information Bureau, Government of India,"
,"December 23, 2015."
,                PART-XI
,WORKING OF THE CONSTITUTION
,
,80. National Commission to Review the Working of the
,Constitution
, 80 National Commission to Review the
,Working of the Constitution
,
,
,
,
,T
,he National Commission to Review the Working of the
,Constitution (NCRWC) was set up by a resolution of the
,Government of India in 20001. The 11-member
,"Commission was headed by M.N. Venkatachaliah, the former"
,Chief Justice of India2. It submitted its report in 20023 .
, I. TERMS OF REFERENCE OF THE COMMISSION
,
,"According to the terms of reference, the commission was required"
,"to examine, in the light of the experience of the past fifty years, as"
,to how far the existing provisions of the Constitution are capable
,"of responding to the needs of efficient, smooth and effective"
,system of governance and socioeconomic development of
,"modern India and to recommend changes, if any. The terms of"
,reference clearly specified that the commission should
,recommend changes that are required to be made in the
,Constitution within the framework of parliamentary democracy and
,without interfering with the ‘basic structure’ or ‘basic features’ of
,the Constitution.
,The commission clarified that its task was to review the working
,of the Constitution and not to rewrite it and its function was only
,recommendatory and advisory in nature. It was left to the
,Parliament to accept or reject any of the recommendations.
,"The commission had no agenda before it. On its own, it"
,identified the eleven areas of study and proposed to examine
,them. They included the following4 :
,1. Strengthening of the institutions of parliamentary democracy
,"(working of the Legislature, the Executive and the Judiciary;"
,"their accountability; problems of administrative, social and"
,economic cost of political instability; exploring the
,possibilities of stability within the discipline of parliamentary
,democracy).
,2. Electoral reforms; standards in political life.
,3. Pace of socio-economic change and development under the
,Constitution (assurance of social and economic rights: how
,fair? how fast? how equal?).
,4. Promoting literacy; generating employment; ensuring social
,security; alleviation of poverty.
,5. Union-State relations.
,6. Decentralization and devolution; empowerment and
,strengthening of Panchayati Raj Institutions.
,7. Enlargement of Fundamental Rights.
,8. Effectuation of Fundamental Duties.
, 9. Effectuation of Directive Principles and achievement of the
,Preambular objectives of the Constitution.
,10. Legal control of fiscal and monetary policies; public audit
,mechanism.
,11. Administrative system and standards in public life.
, II. FIFTY YEARS OF WORKING OF THE
,CONSTITUTION
,
,The observations made by the Commission on the working of the
,Constitution from 1950 to 2000 are as follows5 :
,What are our achievements and failures over the 50 years
,since Independence? How have each of the three organs of the
,"State–the Legislature, the Executive and the Judiciary– redeemed"
,the constitutional pledge of ushering in a social revolution? Has
,the dream of the founding fathers for a life of dignity to the vast
,millions through the process of socioeconomic transformation
,been realized ? What then is the Balance Sheet?
,
,1. Political Accomplishments
,1. India’s democratic base has stabilized as a working federal
,"polity. With the 73rd and 74th Constitutional amendments, the"
,base of democratic debate has widened. There is greater
,push towards noncentralisation. General Elections have
,been held with regularity; and transfers of power consequent
,"upon the results of elections have been orderly, peaceful"
,and democratic.
,2. The educational qualifications of the Members of Parliament
,and State Legislatures have shown marked improvements.
,The Parliament and State Legislatures are increasingly more
,representative of the composition of society. More and more
,members of the hitherto backward classes are moving up in
,the political ladder.
,
,2. Economic Infrastructure–Impressive Performance
,1. There has been marked expansion and diversification of
,production. New technologies and modern management
,techniques are increasingly employed. There are marked
,"advances in Science, Technology, Medicine, Engineering"
,and Information Technology.
,"2. Between 1950–2000, the index of agricultural production"
,increased from 46.2 to 176.8.
,"  3. Between 1960–2000, wheat production went up from 11"
,million tonnes to 75.6 million tonnes.
,"4. Between 1960–2000, rice production went up from 35 million"
,tonnes to 89.5 million tonnes.
,5. Impressive expansion of industrial and service sectors has
,taken place.
,6. Index of industrial production went up from 7.9 in 1950–51 to
,154.7 in 1999–2000.
,7. Electricity generation has increased from 5.1 billion KWH in
,1950–51 to 480.7 billion KWH in 1999–2000.
,8. 6 to 8 per cent annual growth of GNP between 1994–2000
,(except in 1997–98) was achieved.
,9. Revenues from Information Technology industry have grown
,from $ 150 million in 1990 to $ 4 billion in 1999.
,10. India’s per capita Net National Product (NNP) in 1999–2000
,was more than 2.75 times than what it was in 1951.
,
,3. Social Infrastructure– Achievements
,"1. Between 1950 to 1998, infant mortality rate have halved to"
,72 births per 1000 births–down from 146.
,2. Life expectancy at birth has grown up from 32 years in
,1950–51 to 63 years in 2000.
,3. A child born in Kerala today can expect to live longer than a
,child born in Washington.
,4. Life expectancy of women in Kerala is now 75 years.
,5. India has put in place an extensive system of Public Health
,"Services and medical network. In 1951, the country had only"
,"725 primary health centers. By 1995, this has increased to"
,"more than 1,50,000."
,6. The number of primary schools has increased significantly
,"between 1951 and 1995 from 2,10,000 to 5,90,000."
,7. Nearly 95 per cent of the villages have a primary school
,within a walking distance of one kilometer.
,
,4. Political Failures
,1. The main cause and source of politicaldecay is the
,ineptness of the electoral process which has not been able
,"     to keep out criminal, anti-social and undesirable elements"
,from participating in and even dominating the political scene
,and polluting the electoral and parliamentary processes.
,"2.   Though democratic traditions are stabilizing, however,"
,democracy cannot be said to be an inclusive representative
,democracy. The pluralism and diversity of India is not
,reflected in and captured by its democratic institutions;
,"likewise, participation of women in public affairs and"
,decision-making processes is nowhere near proportionate to
,their numbers.
,3.   The enormity of the costs of elections and electoral
,corruption have been having a grievous deleterious effect on
,national progress and has led to the degradation of political
,processes to detriment of common good.
,"4.   Political parties, which have a fair share of the criminal"
,"elements, handle enormous funds collected ostensibly for"
,meeting party and electoral expenditure. Money-power and
,criminal elements have contributed to pervasive
,degeneration of standards in public life and have
,criminalized politics. This is reflected in the quality of
,governments and of the governing processes.
,5.   There are no legal instrumentalities or set of law regulating
,"the conduct of the political parties, legitimacy of fundraising,"
,audit and account requirements and inner-party democracy.
,6.   National political parties are more divided on the definition of
,‘common national purpose’ than ever before; the noble
,purposes of public life have degenerated than ever before
,into opportunistic and self-seeking politics of competitive
,personal gain.
,"7.   ‘Fraternity’, the noble ideal of brotherhood of man, enshrined"
,in the Preamble of the Constitution has remained unrealized.
,The people of India are more divided amongst themselves
,than at the time of the country’s independence.
,8.   There is increasing criminalization and exploitation of the
,political climate and processes and an increasing criminals-
,politicians-bureaucratic nexus.
,9.   There is crisis of confidence. There is crisis of leadership.
,"Political leaders, owing to narrow partisan and sectarian"
,"    interests and desire for short-time political gains, are unable"
,even to agree upon broad common national purposes.
,
,5. Economic Failures
,1. The richest top quintile of population has 85 per cent of the
,income. The poorest quintile has only 1.5 per cent of the
,"country’s income. The second, the third and the fourth"
,"quintile from top have respectively 8 per cent, 3.5 per cent"
,and 2 per cent of the income.
,2. 260 million people live below the poverty line.
,
,6. Social Failures
,"1. India’s maternal mortality rate in 1998 was 407 per 100,000"
,live births. These levels are more than 100 times the levels
,found in the West.
,2. Some 53 per cent children (almost 60 million) under five
,remain malnour-ished–nearly twice the levels reported in
,many parts of sub-Saharan Africa.
,3. The proportion of low birth weight babies born in India is 33
,"per cent. It is only 9 per cent in China and South Korea, 6"
,per cent in Thailand and 8 per cent in Indonesia.
,4. India was a signatory to the Alma Ata Declaration in 1978
,that assured ‘health for all’ by the year 2000. Only 42 per
,cent of the children between 12–23 months are fully
,immunized - 37 per cent in rural areas and 61 per cent in
,urban areas. The coverage is shockingly low in Bihar - 11
,per cent and in Rajasthan - 17 per cent.
,5. While per capita daily consumption of cereals has improved
,only marginally from 400 gms in 1950 to about 440 gms in
,"2000, the per capita pulses (protein intake) have over the 50"
,years decreased.
,6. The promise of social revolution has remained unredeemed.
,There are 270 million Scheduled Castes and Scheduled
,Tribes and the measures for their welfare and uplift have not
,been implemented with sincerity.
,7. There are 380 million children below the age of 14. Almost
,100 million of them are Dalit children. No effective steps are
,     taken to bring them to the level of the “core-mainstream”.
,8. Population control measures in the northern States have not
,succeeded. Fertility rates in Uttar Pradesh indicate that the
,State is almost a century behind Kerala.
,
,7. Administrative Failures
,"1. Corruption, insensitivity and inefficiency of administration"
,have resulted in extralegal systems and parallel economies
,"and even parallel governments. Bureaucratic corruption,"
,"which cause frustration in people in their daily lives, has"
,pushed more and more people into extralegal systems. The
,mal-administration has resulted in a lack of faith in and
,disenchantment with institutions of democracy.
,2. There is an increasing non-accountability. Corruption has
,been pervasive. Public interest has suffered.
,3. Constitutional protection for the Services under Article 311
,has largely been exploited by dishonest officials to protect
,themselves from the consequences of their wrong-doings.
,
,8. Gender Justice and Equality– Failures
,1. The regional disparities in life expectancy is indicated by the
,fact that a woman born in Kerala can expect to live 18 years
,longer than one born in Madhya Pradesh.
,2. In most countries life expectancy among women exceeds
,that of men by about 5 years. In all but a few countries of the
,"world, there are typically 1005 women for every 1000 men."
,Men outnumber women only in societies where women are
,"specifically and systematically discriminated. In India, there"
,are only 933 women for every 1000 men. This is the
,phenomenon about ‘missing’ women.
,3. Overall representation of women in public services is just 4.9
,per cent.
,4. Political participation of women indicates that in 1952 there
,were only 22 women in Lok Sabha against 499 seats (4.41
,"per cent). In 1991, this increased to 49 seats as against 544"
,seats (9.02 per cent).
,"  5. Between 1995–2000, out of 503 judges of the High Court,"
,only 15 were women.
,
,9. Judicial System–Failures
,1. Judicial system has not been able to meet even the modest
,expectations of the society. Its delays and costs are
,"frustrating, its processes slow and uncertain."
,2. People are pushed to seek recourse to extra-legal methods
,for relief.
,3. Trial system both on the civil and criminal side has utterly
,broken down.
,"On an overall assessment, there are more failures than"
,"success stories, making the inference inescapable that the fifty"
,years of the working of the Constitution is substantially a saga of
,missed opportunities.
, III. AREAS OF CONCERN: COMMISSION’S
,PERCEPTION
,
,The following are the important areas of concern according to the
,perception of the Commission6 :
,1. There is a fundamental breach of the constitutional faith on
,the part of Governments and their method of governance
,lies in the neglect of the people who are the ultimate source
,of all political authority. Public servants and institutions are
,not alive to the basic imperative that they are servants of the
,people meant to serve them. The dignity of the individual
,enshrined in the Constitution has remained an unredeemed
,"pledge. There is, thus, a loss of faith in the Governments"
,and governance. Citizens see their Governments besieged
,by uncontrollable events and are losing faith in institutions.
,Society is unable to cope up with current events.
,2. The foremost area of concern is the present nature of the
,Indian State and its inability to anticipate and provide for the
,great global forces of change ushered in by the pace of
,scientific and technological developments.
,3. The next and equally important dimension is the increasing
,cost of government and fiscal deficits which are alarming. In
,"1947, there was a deficit of ₹2 crores in the revenue budget;"
,"in 1997–98, it became ₹88,937 crores; in 2001–02, it is"
,"about ₹1,16,000 crores (4.8 per cent of GDP). India is on its"
,way to a debt-trap.
,4. There is pervasive impurity of the political climate and of
,"political activity. Criminalisation of politics, politicalcorruption"
,and the politician-criminal-bureaucratic nexus have reached
,unprecedented levels needing strong systemic changes.
,5. Issues of national integrity and security have not received
,adequate and thoughtful attention. Mechanisms for the
,assessment of early warning symptoms of social unrest are
,absent. Mechanisms for adequate and immediate state
,responses to emergencies and disaster management are
,"wholly inadequate. Administration, as a system for"
,anticipating coming events and planning responses in
,"      advance, has failed. It has become un-coordinated and"
,directionless amalgam of different departments often with
,"over-lapping and even mutually conflicting jurisdictions,"
,powers and responsibilities which merely acts as a reaction
,to problems. There are no clear-cut standards or basis for
,fixing responsibilities.
,6.   Though India’s overall record and experience as a working
,democracy (despite many centrifugal forces) are worthy to
,mention and though the bases of democratic debate have
,"widened with the 73rd and 74th Constitutional amendments,"
,"the working of the institutions of parliamentary democracy,"
,"however, have thrown-up serious fault-lines, which might, if"
,"unattended, prove destructive of the basic democratic"
,values.
,7.   There is pervasive misuse of the electoral process and the
,electoral system is unable to prevent the entry of persons
,with criminal record into the portal of law-making institutions.
,"8.   The Parliament and the State Legislatures, owing to the"
,"inherent weakness of the electoral system, have failed to"
,acquire adequate representative character. The 13th Lok
,Sabha represents only 27.9 per cent of the total electorate
,and the Legislature of U.P. represents only 22.2 per cent of
,electorate respectively.
,9.   The increasing instability of the elected governments is
,attributable to opportunistic politics and unprincipled
,defections. The economic and administrative costs of
,political instability are unaf-fordably high and their impact on
,the polity is not clearly comprehended and realized. Though
,just four Prime Ministers ruled the country for 40 years out of
,the 54 years of independence and one political party alone
,"was in power for 45 years, however, 1989 onwards the"
,country saw five General Elections to the Lok Sabha. Costs
,of this political instability are simply colossal.
,10.    The state of the Indian economy is disturbing. The economy
,"is gradually sinking into a debt-trap. Economic, fiscal and"
,"monetary policies, coupled with administrative inefficiency,"
,corruption and wasteful expenditure are increasingly pushing
,"the society into extra-legal systems, crime-syndicates, mob-"
,"      rule and hoodlum out-fits. Black-money, parallel economy"
,and even parallel governments are the overarching
,"economic and social realities. Legitimate governments will,"
,"in due course, find it increasingly difficult to confront them. In"
,course of time these illegal criminal out-fits will dictate terms
,to the legitimate governments.
,"11.   Rural de-population, urbanization, urban-congestion and"
,social unrest need immediate attention and solutions.
,Increasing unemployment will prove a serious threat to
,orderly government.
,12.    Future of society is increasingly knowledge-based and
,knowledge-driven. The quality of education and the higher
,research need urgent repair. The country is engaged in a
,unilateral and unthinking educational disarmament.
,13.    System of administration of justice in the country is another
,area of concern.
,14.    Criminal justice system is on the verge of collapse. The
,quality of investigations and prosecutions requires a strong
,second look. Law’s delay and costs of litigation have
,"become proverbial. Victimology, victim-protection and"
,protection of witnesses in sensitive criminal-trials need
,"institutional arrangements. Recruitment, training, refresher"
,"and continuing legal education for lawyers, judges and"
,judicial administrators need immediate attention. The
,increasing utilization of alternative dispute resolution
,"mechanisms such as mediation, conciliation and arbitration"
,as well as mechanisms of auxiliary adjudicative services
,need to be stressed.
,15.    Communal and other inter-group riots in a country like India
,"with its religious, social and cultural diversity cannot be"
,treated as merely law and order problem. They are
,manifestations of collective behavioural disorders. Legal and
,administrative measures are required to be taken to remove
,the insecurity felt by the minorities and for bringing them into
,the mainstream of the national fabric.
,16.    The state of social infrastructure is disturbing. There are 380
,million children below the age of 14. The arrangements for
,"their education, health and well-being are wholly inadequate"
,    both qualitatively and quantitatively. 96.4 per cent of the
,primary education budget goes for salaries alone.
,"17. Rates of infant mortality, blindness, maternal mortality,"
,"maternal-anemia, child malnutrition and child-immunization,"
,"despite significant progress achieved, yet remain at high and"
,disconcerting levels.
,18. Public health and hygiene have not received adequate
,attention. There is alarming increase of infectious diseases
,"such as Tuberculosis, Malaria, Hepatitis, HIV etc."
, IV. RECOMMENDATIONS OF THE COMMISSION
,
,"In all, the commission made 249 recommendations. Of them, 58"
,"recommendations involve amendments to the Constitution, 86"
,involve legislative measures and the remaining 105
,recommendations could be accomplished through executive
,action.
,The various recommendations of the commission are
,mentioned below in an area-wise manner7 :
,
,1. On Fundamental Rights
,1. The scope of prohibition against discrimination (under
,Articles 15 and 16) should be extended to include ‘ethnic or
,"social origin, political or other opinion, property or birth’."
,2. The freedom of speech and expression (under Article 19)
,should be expanded to include explicitly ‘the freedom of the
,"press and other media, the freedom to hold opinions and to"
,"seek, receive and impart information and ideas’."
,3. The following should be added as new Fundamental Rights:
,"(a) Right against torture, cruelty and inhuman treatment or"
,punishment.
,(b) Right to compensation if a person is illegally deprived of
,his right to life or liberty.
,(c) Right to leave and to return to India.
,(d) Right to privacy and family life.
,(e) Right to rural wage employment for a minimum of 80
,days in a year.
,(f) Right to access to courts and tribunals and speedy
,justice.
,(g) Right to equal justice and free legal aid8 .
,(h) Right to care and assistance and protection (in case of
,children).
,"(i) Right to safe drinking water, prevention of pollution,"
,conservation of ecology and sustainable development.
,4. The right to education (under Article 21-A) should be
,enlarged to read as: ‘Every child shall have the right to free
,education until he completes the age of fourteen years; and
,       in the case of girls and members of the SCs and STs until
,they complete the age of eighteen years’.
,5.   Two changes should be made with respect to preventive
,"detention (under Article 22), namely, (i) the maximum period"
,of preventive detention should be six months; and (ii) the
,advisory board should consist of a chairman and two other
,members and they should be serving judges of any high
,court.
,"6.   Sikhism, Jainism and Buddhism should be treated as"
,religions separate from Hinduism and the provisions
,grouping them together (under Article 25) should be deleted.
,"At present, the word ‘Hindu’ is defined to include these"
,religions also.
,7.   The protection from judicial review afforded by Article 31-B
,to the Acts and Regulations specified in the Ninth Schedule
,should be restricted to only those which relate to (i) agrarian
,"reforms, (ii) reservations, and (iii) the implementation of"
,Directive Principles specified in clause (b) or (c) of Article 39.
,8.   No suspension of the enforcement of the Fundamental
,"Rights under Articles 17, 23, 24, 25 and 32 in addition to"
,those under Articles 20 and 21 during the operation of a
,national emergency (under Article 352).
,
,2. On Right to Property
,Article 300-A should be recast as follows:
,1. Deprivation or acquisition of property shall be by authority of
,law and only for a public purpose.
,2. There shall be no arbitrary deprivation or acquisition of
,property.
,"3. No deprivation or acquisition of agricultural, forest and non-"
,urban homestead land belonging to or customarily used by
,the SCs and STs shall take place except by authority of law
,which provides for suitable rehabilitation scheme before
,"taking possession of such land. In brief, a right to ‘suitable"
,rehabilitation’ for the SCs and STs if their land is to be
,acquired.
,3. On Directive Principles
,1. The heading of Part-IV of the Constitution should be
,amended to read as ‘Directive Principles of State Policy and
,Action’.
,2. A new Directive Principle on control of population should be
,added.
,3. An independent National Education Commission should be
,set-up every five years.
,4. An Inter-Faith Commission should be established to promote
,inter-religious harmony and social solidarity.
,5. There must be a body of high status to review the level of
,implementation of the Directive Principles.
,6. A strategic Plan of Action should be initiated to create a
,large number of employment opportunities in five years.
,7. Implementation of the recommendations contained in the
,Report of the National Statistical Commission (2001).
,
,4. On Fundamental Duties
,1. Consideration should be given to the ways and means by
,which Fundamental Duties could be popularized and made
,effective.
,2. The recommendations of the Justice Verma Committee on
,operationalisation of Fundamental Duties should be
,implemented at the earliest9 .
,3. The following new fundamental duties should be included in
,Article 51-A:
,"(a) Duty to vote at elections, actively participate in the"
,democratic process of governance and to pay taxes.
,(b) To foster a spirit of family values and responsible
,"parenthood in the matter of education, physical and"
,moral well-being of children.
,(c) Duty of industrial organizations to provide education to
,children of their employees.
,
,5. On Parliament and State Legislatures
,1. The privileges of legislators should be defined and delimited
,for the free and independent functioning of Parliament and
,      state legislatures.
,2.   Article 105 may be amended to clarify that the immunity
,enjoyed by members under parliamentary privileges does
,not cover corrupt acts committed by them in connection with
,"their duties in the House or otherwise. Further, no court"
,would take cognizance of any offence arising out of a
,member’s action in the House without prior sanction of the
,Speaker / Chairman. Article 194 may also be similarly
,amended in relation to the members of state legislatures.
,3.   The domiciliary requirement for eligibility to contest elections
,to Rajya Sabha from the concerned state should be
,maintained. This is essential to ensure the federal character
,of the Rajya Sabha.
,4.   The MP local area development scheme should be
,discontinued.
,5.   The Election Commission should be empowered to identify
,and declare the various offices under the central and state
,governments to be ‘offices of profit’ for the purposes of being
,"chosen, and for being, a member of the appropriate"
,legislature.
,6.   Immediate steps be taken to set up a Nodal Standing
,Committee on National Economy.
,7.   A Standing Constitution Committee of the two Houses of
,Parliament for a priori scrutiny of constitutional amendment
,proposals should be set up.
,8.   A new Legislation Committee of Parliament to oversee and
,coordinate legislative planning should be constituted.
,"9.   The existing Parliamentary Committees on Estimates, Public"
,Undertakings and Subordinate Legislation may not be
,continued.
,10.    The Parliamentarians must voluntarily place themselves
,open to public scrutiny through a parliamentary ombudsman.
,11.   The State Legislatures with less than 70 members should
,meet for at least 50 days in a year and other State
,"Legislatures for at least 90 days. Similarly, the minimum"
,number of days for sittings of Rajya Sabha and Lok Sabha
,should be fixed at 100 and 120 days respectively.
, 12. A Study Group outside Parliament for study of procedural
,reforms should be set up.
,
,6. On Executive and Administration
,"1. In case of hung Parliament, the Lok Sabha may elect the"
,leader of the House. He may then be appointed as the prime
,minister by the president. The same procedure could be
,followed at the state level also.
,2. A motion of no-confidence against a prime minister must be
,accompanied by a proposal of alternative leader to be voted
,simultaneously. This is called as the ‘system of constructive
,vote of no confidence’.
,3. For a motion of no-confidence to be brought out against the
,"government, at least 20 per cent of the total number of"
,members of the House should give notice.
,4. The practice of having oversized Council of Ministers should
,be prohibited by law. A ceiling on the number of Ministers in
,any State or the Union government be fixed at the maximum
,of 10 per cent of the total strength of the popular house of
,the legislature.
,5. The practice of creating a number of political offices with the
,"position, perks and privileges of a minister should be"
,discouraged. Their number should be limited to 2 per cent of
,the total strength of the lower house.
,6. The Constitution should provide for appointment of Lokpal
,keeping the prime minister outside its purview and the
,institution of lokayuktas in the states.
,7. Lateral entry into government jobs above joint secretary
,level should be allowed.
,8. Article 311 should be amended to ensure not only protection
,to the honest public servants but penalisation to dishonest
,ones.
,"9. The questions of personnel policy including placements,"
,"promotions, transfers and fast-track advancements should"
,be managed by autonomous Civil Service Boards
,constituted under statutory provisions.
,"10. Officials, before starting their career, in addition to the taking"
,"of an oath of loyalty to the Constitution, should swear to"
,     abide by the principles of good governance.
,11. Right to information should be guaranteed and the traditional
,"insistence on secrecy should be discarded. In fact, there"
,should be an oath of transparency in place of an oath of
,secrecy.
,12. Public Interest Disclosure Acts (which are popularly called
,the Whistle-blower Acts) may be enacted to fight corruption
,and mal-administration.
,13. A law should be enacted to provide for forfeiture of benami
,property of corrupt public servants as well as non-public
,servants.
,
,7. On Centre-State and Inter-State Relations
,1. The Inter-State Council Order of 1990 may clearly specify
,the matters that should form the parts of consultations.
,2. Management of disasters and emergencies (both natural
,and manmade) should be included in the List III (Concurrent
,List) of the Seventh Schedule.
,3. A statutory body called the Inter-State Trade and Commerce
,Commission should be established.
,4. The president should appoint the governor of a state only
,after consultation with the chief minister of that state.
,"5. Article 356 should not be deleted, but it must be used"
,sparingly and only as a remedy of the last resort.
,6. The question whether the ministry in a state has lost the
,confidence of the assembly or not should be tested only on
,the floor of the House. The Governor should not be allowed
,"to dismiss the ministry, so long as it enjoys the confidence of"
,the House.
,7. Even without the state being under a proclamation of
,"emergency, President’s Rule may be continued if elections"
,cannot be held. Article 356 should be amended to this effect.
,8. The State Assembly should not be dissolved before the
,proclamation issued under Article 356 has been laid before
,Parliament. Article 356 should be amended to ensure this.
,9. River water disputes between States and / or the Centre
,should be heard and disposed by a bench of not less than
,"     three judges and if necessary, a bench of five judges of the"
,Supreme Court for the final disposal of the suit.
,10. Parliament should replace the River Boards Act of 1956 with
,another comprehensive enactment after consultation with all
,the states.
,11. When the state bill is reserved for consideration of the
,"President, there should be a time-limit (say of three months)"
,within which the President should take a decision whether to
,give his assent or to return the bill.
,
,8. On Judiciary
,1. A National Judicial Commission under the Constitution
,should be established to recommend the appointment of
,judges of the Supreme Court. It should comprise the chief
,"justice of India (as chairman), two senior most Judges of the"
,"Supreme Court, the Union law minister and one person"
,nominated by the president.
,2. A committee of the National Judicial Commission should
,examine complaints of deviant behaviour of the Supreme
,Court and high court judges.
,3. The retirement age of the judges of high courts and
,Supreme Court should be increased to 65 and 68
,respectively.
,4. No court other than the Supreme Court and the High Courts
,should have the power to punish for contempt of itself.
,"5. Except the Supreme Court and the High Courts, no other"
,court should have the power to declare the Acts of
,Parliament and State Legislatures as being unconstitutional
,or beyond legislative competence and so ultra-vires.
,6. A National Judicial Council and Judicial Councils in States
,should be set up for the preparation of plans and annual
,budget proposals.
,"7. In the Supreme Court and the High Courts, judgements"
,should ordinarily be delivered within 90 days from the
,conclusion of the case.
,8. An award of exemplary costs should be given in appropriate
,cases of abuse of process of law.
,  9. Each High Court should prepare a strategic plan for time-
,bound clearance of arrears in courts within its jurisdiction.
,No case to remain pending for more than one year.
,10. The system of plea-bargaining should be introduced as part
,of the process of decriminalization.
,11. The hierarchy of the subordinate courts in the country
,should be brought down to a two-tier of subordinate judiciary
,under the High Court.
,
,9. On Pace of Socio-Economic Change and
,Development
,1. A way could and should be found to bring a reasonable
,"number of SCs, STs and BCs on to the benches of the"
,Supreme Court and high courts.
,"2. Social policy should aim at enabling the SCs, STs and BCs"
,and with particular attention to the girls to compete on equal
,terms with the general category.
,3. Appropriate new institutions should be established to ensure
,that the resources earmarked for the weaker sections are
,optimally used.
,4. The Citizens’ Charters be prepared by every service
,providing department / agency to enumerate the
,"entitlements of the citizens specifically those of the SCs, STs"
,and other deprived classes.
,"5. Reservation for SCs, STs and BCs should be brought under"
,a statute covering all aspects of reservation including setting
,up of Arakshan Nyaya Adalats to adjudicate upon all
,disputes pertaining to reservation.
,"6. Residential schools for SCs, STs and BCs should be"
,established in every district in the country.
,7. All tribal areas governed by the Fifth Schedule of the
,Constitution should be transferred to the Sixth Schedule.
,Other tribal areas should also be brought under the Sixth
,Schedule.
,8. Special courts exclusively to try offences under the SCs and
,"STs (Prevention of Atrocities) Act, 1989, should be"
,established.
,"  9. Prevention of untouchability requires, inter alia, effective"
,"punitive action under the Protection of Civil Rights Act, 1955."
,10. The Employment of Manual Scavengers and Construction of
,"Dry Latrines (Prohibition) Act, 1993, should be strictly"
,enforced.
,11. Steps should be taken for improvement of educational
,standards as well as for increasing the political
,representation of the minority communities.
,12. A fully empowered National Authority for the Liberation and
,Rehabilitation of bonded labour should be set up. Similar
,authorities should also be established at the state level.
,"13. As regards women, action covering reservation,"
,"development, empowerment, health and protection against"
,violence should be taken.
,
,10. On Decentralisation (Panchayats and
,Municipalities)
,1. The Eleventh and Twelfth Schedules of the Constitution
,should be restructured in a manner that creates a separate
,fiscal domain for panchayats and municipalities.
,2. State panchayat council should be established under the
,chairmanship of the chief minister.
,3. Panchayats and Municipalities should be categorically
,declared to be ‘institutions of self-government’ and exclusive
,"functions be assigned to them. For this purpose, Articles"
,243-G and 243-W should be suitably amended.
,4. The Election Commission of India should have the power to
,issue directions to the State Election Commission for the
,discharge of its functions. The State Election Commission
,should submit its annual or special reports to the Election
,Commission of India and to the Governor. This requires the
,amendment of Articles 243-K and 243-ZA.
,5. Article 243-E should be amended to the effect that a
,reasonable opportunity of being heard shall be given to a
,Panchayat before it is dissolved.
,6. To ensure uniformity in the practice relating to audit of
,"accounts, the CAG of India should be empowered to"
,       conduct the audit or lay down accounting standards for
,Panchayats.
,"7.   Whenever a Municipality is superseded, a report stating the"
,grounds for such dissolution should be placed before the
,State Legislature.
,8.   All provisions regarding qualifications and disqualifications
,for elections to local authorities should be consolidated in a
,single law.
,"9.   The functions of delimitation, reservation and rotation of"
,seats should be vested in a Delimitation Commission and
,not in the State Election Commission.
,10.    The concept of a distinct and separate tax domain for
,municipalities should be recognized.
,
,11. On Institutions in North East India
,1. Efforts are to be made to give all the States in this region the
,opportunities provided under the 73rd and 74th Constitutional
,"Amendments. However, this should be done with due regard"
,to the unique political traditions of the region.
,2. The subjects given under the Sixth Schedule and those
,mentioned in the Eleventh Schedule could be entrusted to
,the Autonomous District Councils (ADCs).
,3. Traditional forms of governance should be associated with
,self-governance because of the present dissatisfaction.
,4. A National Immigration Council should be set up to examine
,"a range of issues including review of the Citizenship Act, the"
,"Illegal Migrants Determination by Tribunal Act, the"
,Foreigners Act and so on.
,"5. As regards Nagaland, the Naga Councils should be replaced"
,by elected representatives of various Naga society groups
,with an intermediary tier at the district level.
,"6. As regards Assam, the Sixth Schedule should be extended"
,to the Bodoland Autonomous Council and other Autonomous
,Councils be upgraded to Autonomous Development
,Councils.
,"7. As regards Meghalaya, a tier of village governance should"
,be created for a village or a group of villages in the
,Autonomous District Councils.
,"  8. As regards Tripura, the changes which may be made in"
,respect of other Autonomous Councils should also apply in
,respect of the Autonomous District Councils.
,"9. As regards Mizoram, an intermediary elected tier should be"
,developed at the district level in areas not covered by the
,Sixth Schedule.
,"10. As regards Manipur, the provisions of the Sixth Schedule"
,should be extended to hill districts of the State.
,
,12. On Electoral Processes
,1. Any person charged with any offence punishable with
,"imprisonment for a maximum term of five years or more,"
,should be disqualified for being chosen as or for being a
,member of Parliament or Legislature of a State.
,"2. Any person convicted for any heinous crime like murder,"
,"rape, smuggling, dacoity, etc., should be permanently"
,debarred from contesting for any political office.
,3. Criminal cases against politicians pending before Courts
,"either for trial or in appeal must be disposed of speedily, if"
,"necessary, by appointing Special Courts."
,4. The election petitions should also be decided by special
,"courts. In the alternative, special election benches may be"
,constituted in the High Courts and earmarked exclusively for
,the disposal of election petitions and election disputes.
,5. Any system of State funding of elections bears a close
,nexus to the regulation of working of political parties by law
,and to the creation of a foolproof mechanism under law with
,"a view to implementing the financial limits strictly. Therefore,"
,proposals for State funding should be deferred till these
,regulatory mechanisms are firmly in position.
,6. Candidates should not be allowed to contest election
,simultaneously for the same office from more than one
,constituency.
,7. The election code of conduct should be given the sanctity of
,law and its violation should attract penal action.
,8. The Commission while recognizing the beneficial potential of
,the system of run off contest electing the representative
,"winning on the basis of 50 per cent plus one vote polled, as"
,"       against the present first-past-the-post system, for a more"
,"representative     democracy,        recommends    that   the"
,Government and the Election Commission of India should
,examine this issue of prescribing a minimum of 50 per cent
,plus one vote for election in all its aspects.
,9.   An independent candidate who loses election three times
,consecutively should be permanently debarred from
,contesting election to the same office.
,10.    The minimum number of valid votes polled should be
,increased to 25 per cent from the current 16.67 per cent as a
,condition for the deposit not being forfeited.
,11.   The issue of eligibility of non-Indian born citizens or those
,whose parents or grandparents were citizens of India to hold
,"high offices in the realm such as President, Vice-President,"
,Prime Minister and Chief Justice of India should be
,examined in depth through a political process after a
,national dialogue10 .
,12.    The Chief Election Commissioner and the other Election
,Commissioners        should      be      appointed  on    the
,"recommendation of a body consisting of the Prime Minister,"
,"Leader of the Opposition in the Lok Sabha, Leader of the"
,"Opposition in the Rajya Sabha, the Speaker of the Lok"
,Sabha and the Deputy Chairman of the Rajya Sabha.
,Similar procedure should be adopted in the case of
,appointment of State Election Commissioners.
,
,13. On Political Parties
,1. A comprehensive law regulating the registration and
,functioning of political parties or alliances of parties should
,be made. The proposed law should-
,(a) provide that political party or alliance should keep its
,doors open to all citizens irrespective of any distinctions
,"of caste, community or the like."
,(b) make it compulsory for the parties to maintain accounts
,of the receipt of funds and expenditure in a systematic
,and regular way.
,(c) make it compulsory for the political parties requiring their
,candidates to declare their assets and liabilities at the
,         time of filing their nomination.
,(d) provide that no political party should provide ticket to a
,candidate if he was convicted by any court for any
,criminal offence or if the courts have framed criminal
,charges against him.
,(e) specifically provide that if any party violates the above
,"provision , the candidate involved should be liable to be"
,disqualified     and      the    party    deregistered and
,derecognized.
,2. The Election Commission should progressively increase the
,threshold criterion for eligibility for recognition so that the
,proliferation of smaller political parties is discouraged.
,3. A comprehensive legislation providing for regulation of
,contributions to the political parties and towards election
,expenses should be enacted by consolidating such laws.
,This new law should:
,(a) aim at bringing transparency into political funding;
,(b) permit corporate donations within higher prescribed
,limits;
,(c) make donations up to a specified limit tax exempt;
,(d) make both donors and donees of political funds
,accountable;
,(e) provide that audited political party accounts should be
,published yearly; and
,(f) provide for de-recognition of the party and enforcement
,of penalties for filing false election returns.
,
,14. On Anti-Defection Law
,The provisions of the Tenth Schedule of the Constitution should
,be amended to provide the following:
,1. All persons defecting (whether individually or in groups) from
,"the party or the alliance of parties, on whose ticket they had"
,"been elected, must resign from their parliamentary or"
,assembly seats and must contest fresh elections.
,2. The defectors should be debarred to hold any public office of
,a minister or any other remunerative political post for at least
,the duration of the remaining term of the existing legislature
,or until the next elections whichever is earlier.
,3. The vote cast by a defector to topple a government should
,be treated as invalid.
,4. The power to decide questions regarding disqualification on
,ground of defection should vest in the Election Commission
,instead of in the Speaker / Chairman of the House
,concerned.
, V. EARLIER EFFORTS TO REVIEW THE
,CONSTITUTION
,"Even before the appointment of this Commission in 2000, certain"
,attempts were already made to review the working of the
,Constitution. The Commission itself has summarized those
,attempts in the following way11 :
,1. There was nothing entirely new in the effort at reviewing the
,working of our Constitution. The debate had continued right
,"from the first decade of the life of the Constitution. Also,"
,"every amendment had been an occasion for review. But, in"
,the half-a-century and more since the Constitution came into
,"force, whereas as many as eighty-five amendments have"
,"been instituted, there has been (till the setting up of the"
,National Commission to Review the Working of the
,Constitution) no comprehensive and transparent official
,exercise to review the working of the Constitution in its
,entirety with a view to evaluating its achievements and
,failures in fulfilling the objectives of the Constitution in the
,"context of experience gained, and for future requirements"
,perceived.
,"2. After the Constitution came into force, within two years, it"
,was required to be amended. In the course of his speech on
,"the Constitution (First Amendment) Bill, 1951, on 2 June"
,1951 Nehru once again repeated his views as to the need
,for the Constitution to be amenable to amendment. On this
,"occasion, his words were trenchant and unsparing. He said:"
,"“A Constitution which is unchanging and static, it does not"
,"matter how good it is, but as a Constitution it is past its"
,use. It is in its old age already and gradually approaching
,its death. A Constitution to be living must be growing;
,must be adaptable; must be flexible; must be
,"changeable... Therefore, it is a desirable and a good thing"
,for people to realize that this very fine Constitution that we
,"have fashioned after years of labour, is good in so far as it"
,"goes, but as society changes as conditions change, we"
,amend it in the proper way”.
,"3. Four years later, as an experienced Prime Minister with"
,prolonged firsthand knowledge of the efficacy of the
,"fundamental law of the land, he held the same view."
,"Speaking on the Constitution (Fourth Amendment) Bill, 1955"
,Nehru said:
,"“After all, the Constitution is meant to facilitate the working"
,of the Government and the administrative and other
,structures of this country. It is meant to be not something
,that is static and which has a static form in a changing
,"world, but something which has something dynamic in it,"
,which takes cognizance of the dynamic nature of modern
,"conditions, modern society.”"
,"4. In the years that followed the Fourth Amendment, the"
,Constitution has been amended 81 times. The Union and
,the State Governments and Parliament faced the Supreme
,Court over fundamental rights issues: freedom of expression
,visa-vis national integrity; personal liberty visa-vis political
,stability; special treatment for some segments of society
,visa-vis abstract equality for all; property rights vis-a-vis
,social revolution needs etc. Questions also arose whether
,"the power of constitutional amendment was complete,"
,unrestrained and unlimited and whether there were limits to
,the power of judicial review of constitutional amendments.
,"5. In the period 1950 to 1967, Parliament and most State"
,Assemblies had preponderant Congress majorities. General
,Elections in 1967 were followed by the formation of non-
,Congress coalitions in a number of States in the northern
,region of the country. Certain issues pertaining to Union-
,State relations arose during this period directly from the
,functioning of mechanisms and processes under the
,Constitution. An Administrative Reforms Commission was
,constituted by the Government of India to examine
,administrative aspects of Union-State relations.
,"6. In the period following the fourth General Election, the"
,phenomenon of unprincipled defections for money or
,ministerships etc. came to the fore: legislators changing their
,party allegiance again and again in utter disregard of all
,"moral and political proprieties, constituency choice and"
,   public opinion. Wide-spread concern about the problem was
,"mirrored in Parliament, and led to a unanimous resolution in"
,the Lok Sabha on 8 December 1967. The resolution read:
,“This House is of opinion that a high-level Committee
,consisting of representatives of political parties and
,constitutional experts be set up immediately by
,Government to consider the problem of legislators
,changing their allegiance from one party to another and
,"their frequent crossing of the floor in all its aspects, and"
,make recommendations in this regard.”
,"7. Known subsequently as the Y.B. Chavan Committee, after"
,the then Union Home Minister who was the Chairman of the
,"Committee, this body produced a valuable report which"
,addressed a variety of issues germane to the handling of the
,problem of defections which had basic implications with
,reference to the working of constitutional machinery and
,connected statutory and procedural instrumentalities.
,8. The 25th anniversary of the coming into force of the
,Constitution of the world’s largest democratic republic
,"occurred, ironically, in the year in which the Emergency was"
,clamped on the nation in an atmosphere of burgeoning
,national unrest. It was in this context that the first concerted
,initiative towards a review and revision of the Constitution
,"was undertaken in 1975. At the AICC Session in December,"
,1975 - the ‘Kamagata Maru Session’ -a resolution on the
,political situation stated:
,“If the misery of the poor and vulnerable sections of our
,"society is to be alleviated, vast and far-reaching changes"
,have to be effected in our socio-economic structure... The
,Congress urges that our Constitution be thoroughly
,examined in order to ascertain if the time has not come to
,make adequate alterations to it so that it may continue as
,a living document.”
,9. A document titled ‘A Fresh Look at Our Constitution - Some
,"Suggestions’ surfaced at this time and was circulated but,"
,after the recommendations contained in it had drawn
,"stringent criticism from diverse quarters, it was not pursued."
,Amidst tenacious advocacy about the need for constitutional
,"    change, particularly after the Kamagata Maru Session of the"
,"Indian National Congress, the then Congress President,"
,"D.K. Borooah appointed, on 26 February 1976, a Committee"
,“to study the question of amendment of the Constitution.. in
,"the light of experience.” The twelve-member Committee,"
,"headed by Sardar Swaran Singh, submitted “tentative"
,proposals” to the Congress President in April 1976 and
,these were then circulated among a select few. The then
,"Chairman of the Law Commission of India, Justice P.B."
,Gajendragadkar wrote to the Prime Minister that while
,amendment to the Constitution was necessary to expedite
,"the socio-economic revolution, “ad-hocism is undesirable"
,and adoption of extremist doctrinaire positions is irrelevant
,and inadvisable”. He advised the Prime Minister “to appoint
,a high powered committee to research and discuss the
,problem in depth for a dedicated and comprehensive effort.”
,10. The Swaran Singh Committee Report stated that its
,recommendations had been made with the background of
,the tentative proposals circulated earlier to Congress Chief
,"Ministers and Pradesh Congress Committees, the views of"
,Bar Associations of the Supreme Court and all the High
,"Courts, comments in the Press and in public and"
,"memoranda and opinions received from individuals,"
,professional bodies etc. It said:
,“.....the Committee has kept before it certain important
,objectives. Our Constitution has functioned without any
,serious impediment during the past 26 years or so. While
,"this is so, difficulties have been thrown up from time to"
,"time in the interpretation of some of its provisions, more"
,particularly when they concern the right of Parliament to
,be the most authentic and effective instrument to give
,expression and content to the sovereign will of the
,people”.
,The Committee also declared that:
,"“The Parliamentary system is best suited to our country,"
,and it is unnecessary to abandon it in favour of the
,Presidential or any other system. In a vast country like
,"India, with the kind of regional diversity as we have, the"
,       Parliamentary system preserves best the unity and
,integrity of the country and ensures greater
,responsiveness to the voice of the people.”
,11. The Committee made a series of recommendations on a
,wide range of issues including the Preamble; the Directive
,Principles; the constituent power of Parliament to amend the
,Constitution; the power of judicial review; article 276; service
,matters; industrial and labour disputes; matters relating to
,"revenue, land reform, procurement and distribution of food"
,grains and other essential commodities; Election matters;
,Article 227; disqualification for membership of a house of
,Parliament or either house of the State Legislature; article
,352 and Union State Coordination. The Committee also
,undertook to make separate proposals for the deletion of
,"some provisions of the Constitution which, it observed, had"
,become “obsolete or redundant.”
,12. Reacting to the Swaran Singh Committee and its report as
,"published, Justice P.B. Gajendragadkar, then still the"
,"Chairman of the Law Commission, in a letter to Smt. Indira"
,"Gandhi, reiterated his view that the amendment to the"
,fundamental law of the land should not have been left to a
,"party committee and that the modality could, advisedly, have"
,been a committee of experts to hear all parties and persons.
,"He said, further, that the Committee appointed by Congress"
,"President Borooah had “worked in a hurry, discussed issues"
,in a casual manner and based its recommendations mainly
,on political considerations.”
,"13. When the Forty-Second Amendment Bill was prepared, the"
,Statement of Objects and Reasons echoed some of
,Jawaharlal Nehru’s words. “A Constitution to be living must
,"be growing”, it declared. “If the impediments to the growth of"
,"the Constitution are not removed, the Constitution will suffer"
,"virtual atrophy.” The Prime Minister, in her speech in the Lok"
,"Sabha on 27 October 1976, said that the purpose of the Bill"
,was “to remedy the anomalies that have long been noticed
,and to overcome obstacles put up by economic and political
,"vested interests,” and that the Bill was “responsive to the"
,"    aspirations of the people, and reflects the realities of the"
,present time and the future”.
,"14. After the change of Government, following general elections"
,"in 1977, the then Prime Minister, Morarji Desai appointed a"
,Committee of Members of Parliament as a forum for
,considering substantive changes in the amendments
,"brought about during the Emergency. Subsequently, the"
,Prime Minister set up a Sub-Committee of the Cabinet for
,the same purpose. Issues germane to the 42nd Amendment
,were subject matter of voluminous expression of opinion by
,"jurists, parliamentarians, editors and professional bodies."
,"But, essentially, the effort focused on the correction of the"
,imbalance in the Constitution caused by some provisions of
,the Forty Second Amendment.
,15. The need was felt for a comprehensive review of Union-
,State relations following the experience gained in the period
,after the General Elections of 1977 which had resulted in
,non Congress governments at the Centre and in several
,"major States in the north, but governments formed by the"
,"Congress in the southern States. In 1983, a Commission"
,was constituted under the chairmanship of Justice R.S.
,Sarkaria with fairly wide-ranging terms of reference. These
,included:
,“(i) The Commission will examine and review the working of
,the existing arrangements between the Union and the
,"States in regard to powers, functions and responsibilities"
,in all spheres and recommend such changes or other
,measures as may be appropriate;
,(ii) In examining and reviewing the working of existing
,arrangements between the Union and States and
,making recommendations as to changes and measures
,"needed, the Commission will keep in view the social and"
,economic developments that have taken place over the
,years and have due regard to the scheme and
,framework of the Constitution which the founding fathers
,have so sedulously designed to protect the
,independence and ensure the unity and integrity of the
,           country which is of paramount importance for promoting
,the welfare of the people.”
,16.    There were also some other especially note-worthy studies
,of particular problems in the political system. Deep concern
,had been voiced relative to flaws in the electoral process.
,This had occasioned a Joint Parliamentary Committee on
,"Amendments to Election Law, which submitted its report in"
,1972. The Committee for Democracy set up by Loknayak
,Jaya Prakash Narayan had also studied the subject. Various
,aspects of electoral reforms were reviewed by a Cabinet
,Sub Committee appointed in 1977 and another in 1982. In
,"1990, the Government of India constituted a Committee"
,under the Chairmanship of the then Union Law Minister
,Dinesh Goswami with Members drawn from different political
,parties. The Report of the Committee contained a series of
,"recommendations, most of which were accepted for"
,implementation.
,17.    A Committee to examine issues related to State Funding of
,"Elections was constituted in May 1998, known as the Indrajit"
,Gupta Committee after that outstanding Parliamentarian and
,leader who was its Chairman. Although the Committee had a
,"relatively limited compass of study, its observations are"
,noteworthy and comprise valuable supplementary material
,pertaining to the process of elections.
,18.    Various Reports of the Law Commission of India provide a
,wealth of insights into the working of the machinery of the
,"Constitution. The 170th Report of the Law Commission, on"
,"Reform of Election Laws, presented in May 1999, considers"
,radical approaches seeking to improve the system of
,elections - the very sheet anchor of Parliamentary
,Democracy under the Constitution.
,19.    The most significant of the non-political civil society efforts
,was the seminar organised by 15 national institutions in
,1992 and the committee appointed by the India International
,Centre to review the working of the Constitution. The
,committee which had the senior Congress leader and former
,"cabinet minister, Dr. Karan Singh as the Chairman and"
,included among its members two of the members of this
,"    Commission, presented its report to the President and"
,others. Concluding recommendation of the committee was
,that of a Review Commission being appointed.
,20. The National Agenda for Governance issued by the National
,Democratic Alliance as the NDA Election Manifesto before
,the last general elections contained a pledge that a
,Commission would be appointed to review the Constitution
,in the light of its working for fifty years. The Pledge was
,affirmed in the President’s address to Parliament and was
,followed by the appointment of this Commission in February
,2000
,
,
,NOTES AND REFERENCES
,1. The Ministry of Law and Justice (Department of Legal
,"Affairs), vide its Resolution, dated the 22 February,"
,2000
,2. The other members of the Commission were: B.P.
,"Jeevan Reddy (Chairman of the Law Commission), R.S."
,"Sarkaria (former judge of the Supreme Court), K."
,Punnayya (former judge of the Andhra Pradesh High
,"Court), Soli Sorabjee (Attorney-General of India), K."
,"Parasaran (former Attorney-General of India), Subhash"
,"Kashyap (former Secretary-General of Lok Sabha), C.R."
,"Irani (Chief Editor and MD of the Statesman), Abid"
,"Hussain (former Ambassador of India to the USA), Smt."
,Sumitra Kulkarni (former MP) and P.A. Sangma (former
,Speaker of the Lok Sabha). P.A. Sangma resigned three
,months before the submission of the report by the
,Commission.
,3. The Commission was asked to complete its work and
,make recommendations within one year. After three
,"extensions, the Commission submitted its report on"
,"March 31, 2002. This report is a bulky one, containing"
,"1,979 pages in two-volumes. Volume I contains its"
,"recommendations while Volume II (divided in Books 1, 2"
,"and 3) consists of detailed consultation papers,"
,"      background papers, details of deliberations and the"
,report of its drafting and editorial committee.
,"4.   Report of the Commission, Volume I, Chapter 1."
,"5.   Report of the Commission, Volume I, Chapter 2."
,6.   Ibid.
,7.   Chapters 3 to 10 in Volume I of the Report of the
,Commission        contains     the     detailed   area-wise
,recommendations. The summary of recommendations
,is given in Chapter 11 of the Report.
,"8.   At present, it is a Directive Principle under Article 39-A."
,9.   The Government of India appointed the committee “to
,operationalise the suggestions to teach Fundamental
,Duties to the citizens of India” in the year 1998 under
,the chairmanship of Justice J.S. Verma. The Committee
,submitted its report in October 1999.
,10.    The Commission was deeply divided on this issue and
,"because of this, P.A. Sangma left the Commission."
,"11.   Report of the Commission, Volume I, Chapter 1."
,                    APPENDICES
,
,I: Articles of the Constitution (1–395)
,"II: Subjects of Union, State and Concurrent Lists"
,III: Table of Precedence
,IV: Constitutional Amendments at a Glance
,"V: Presidents, Vice-Presidents, Prime Ministers, etc."
,VI: Chairpersons of the National Commissions
,VII: UPSC Questions on Indian Polity (General Studies—
,Prelims 2010–2019)
,VIII: Practice Questions on Indian Polity (General Studies—
,Prelims)
,IX: UPSC Questions on Indian Polity (General Studies—Mains
,2010–2019)
,X: Practice Questions on Indian Polity (General Studies—
,Mains)
,Appendix I   Articles of the Constitution
,(1–395)
,UNION AND ITS TERRITORY
,1. Name and territory of the union
,2. Admission or establishment of new states
,2A. Sikkim to be associated with the Union (Repealed)
,"3. Formation of new states and alteration of areas,"
,boundaries or names of existing states
,4. Laws made under Articles 2 and 3 to provide for the
,amendment of the First and the Fourth Schedules and
,"supplemental, incidental and consequential matters"
,CITIZENSHIP
,5. Citizenship at the commencement of the Constitution
,6. Rights of citizenship of certain persons who have
,migrated to India from Pakistan
,7. Rights of citizenship of certain migrants to Pakistan
,8. Rights of citizenship of certain persons of Indian origin
,residing outside India
,9. Persons voluntarily acquiring citizenship of a foreign
,state not to be citizens
,10. Continuance of the rights of citizenship
,11. Parliament to regulate the right of citizenship by law
,FUNDAMENTAL RIGHTS
,
,12. Definition of state
,13. Laws inconsistent with or in derogation of the
,fundamental rights
,14. Equality before law
,"15. Prohibition of discrimination on grounds of religion,"
,"race, caste, sex or place of birth"
,16. Equality of opportunity in matters of public employment
,17. Abolition of untouchability
,18. Abolition of titles
,19. Protection of certain rights regarding freedom of
,"speech, etc."
,20. Protection in respect of conviction for offences
,21. Protection of life and personal liberty 21A. Right to
,elementary education
,22. Protection against arrest and detention in certain cases
,23. Prohibition of traffic in human beings and forced labour
,"24. Prohibition of employment of children in factories, etc."
,"25. Freedom of conscience and free profession, practice"
,and propagation of religion
,26. Freedom to manage religious affairs
,27. Freedom as to payment of taxes for promotion of any
,particular religion
,28. Freedom as to attendance at religious instruction or
,religious worship in certain educational institutions
,29. Protection of interests of minorities
,30. Right of minorities to establish and administer
,educational institutions
,31. Compulsory acquisition of property (Repealed)
,"31A. Saving of laws providing for acquisition of estates, etc."
,31B. Validation of certain acts and regulations
,31C. Saving of laws giving effect to certain directive
,principles
,32A. Constitutional validity of State laws not to be
,considered in proceedings under article 32 (Repealed)
,33. Power of Parliament to modify the fundamental rights in
,"their application to forces, etc."
,34. Restriction on fundamental rights while martial law is in
,force in any area
,35. Legislation to give effect to some of the provisions of
,fundamental rights
,DIRECTIVE PRINCIPLES OF STATE POLICY
,
,36. Definition of State
,37. Application of the directive principles
,38. State to secure a social order for the promotion of
,welfare of the people
,39. Certain principles of policy to be followed by the State
,39A. Equal justice and free legal aid
,40. Organisation of village panchayats
,"41. Right to work, to education, and to public assistance in"
,certain cases
,42. Provision for just and humane conditions of work and
,maternity relief
,"43. Living wage, etc. for workers"
,43A. Participation of workers in management of industries
,43B. Promotion of co-operative societies
,44. Uniform civil code for the citizens
,45. Provision for early childhood care and education to
,children below the age of six years
,46. Promotion of educational and economic interests of
,"scheduled castes, scheduled tribes and other weaker"
,sections
,47. Duty of the state to raise the level of nutrition and the
,standard of living and to improve public health
,48. Organisation of agriculture and animal husbandry
,48A. Protection and improvement of environment and
,safeguarding of forests and wild life
,49. Protection of monuments and places and objects of
,national importance
,50. Separation of judiciary from executive
,51. Promotion of international peace and security
,FUNDAMENTAI DUTIES
,
,51A. Fundamental duties
,PRESIDENT AND VICE-PRESIDENT
,
,52.    The President of India
,53.    Executive power of the Union
,54.    Election of President
,55.    Manner of election of President
,56.    Term of office of President
,57.    Eligibility of re-election
,58.    Qualifications for election as President
,59.    Conditions of President’s office
,60.    Oath or affirmation by the President
,61.    Procedure for impeachment of the President
,62.    Time of holding election to fill vacancy in the office of
,President and the term of office of person elected to fill
,casual vacancy
,63.    The Vice-President of India
,64.    The Vice-President to be ex-officio chairman of the
,council of states
,65.    The Vice-President to act as President or to discharge
,"his functions during casual vacancies in the office, or"
,"during the absence, of President"
,66.    Election of Vice-President
,67.    Term of office of Vice-President
,68.    Time of holding election to fill vacancy in the office of
,Vice-President and the term of office of person elected
,to fill casual vacancy.
,69.    Oath or affirmation by the VicePresident
,70.    Discharge of President’s functions in other
,contingencies
,"72.    Power of president to grant pardons, etc., and to"
,"suspend, remit or commute sentences in certain cases"
,73.    Extent of executive power of the Union
,UNION MINISTERS AND ATTORNEY GENERAL
,
,74.    Council of ministers to aid and advise President
,75.    Other provisions as to ministers
,76.    Attorney-General for India
,77.    Conduct of business of the Government of India
,78.    Duties of Prime Minister as respects the furnishing of
,"information to the President, etc."
,PARLIAMENT
,
,79.   Constitution of Parliament
,80.   Composition of the council of states
,81.   Composition of the House of the people
,82.   Readjustment after each census
,83.   Duration of Houses of Parliament
,84.   Qualification for membership of Parliament
,"85.   Sessions of Parliament, prorogation and dissolution"
,86.   Right of President to address and send messages to
,Houses
,87.   Special address by the President
,88.   Rights of ministers and Attorney General as respects
,Houses
,89.   The chairman and deputy chairman of the council of
,states
,"90.   Vacation and resignation of, and removal from, the"
,office of deputy chairman
,91.   Power of the Deputy Chairman or other person to
,"perform the duties of the office of, or to act as,"
,Chairman
,92.   The Chairman or the Deputy Chairman not to preside
,while a resolution for his removal from office is under
,consideration
,95.   Power of the Deputy Speaker or other person to
,"perform the duties of the office of, or to act as, Speaker"
,96.   The Speaker or the Deputy Speaker not to preside
,while a resolution for his removal from office is under
,consideration
,97.   Salaries and allowances of the Chairman and Deputy
,Chairman and the Speaker and Deputy Speaker
,98.   Secretariat of Parliament
,99.   Oath or affirmation by members
,"100.   Voting in Houses, power of Houses to act"
,notwithstanding vacancies and quorum
,101.   Vacation of seats
,102.   Disqualifications for membership
,103. Decision on questions as to disqualifications of
,members
,104. Penalty for sitting and voting before making oath or
,affirmation under Article 99 or when not qualified or
,when disqualified
,"105. powers, privileges, etc., of the Houses of Parliament"
,and of the members and committees thereof
,106. Salaries and allowances of members
,107. Provisions as to introduction and passing of bills
,108. Joint sitting of both Houses in certain cases
,109. Special procedure in respect of money bills
,110. Definition of “money bills’
,111. Assent to bills
,112. Annual financial statement (budget)
,113. Procedure in Parliament with respect to estimates
,114. Appropriation bills
,"115. Supplementary, additional or excess grants"
,"116. Votes on account, votes of credit and exceptional"
,grants
,120. Language to be used in Parliament
,121. Restriction on discussion in Parliament
,122. Courts not to inquire into proceedings of Parliament
,123. Power of President to promulgate ordinances during
,recess of Parliament
,SUPREME COURT
,
,124.   Establishment and Constitution of Supreme Court
,124A.   National Judicial Appointments Commission
,124B.   Functions of Commission
,124C.   Power of Parliament to make law
,"125.   Salaries, etc., of judges"
,126.   Appointment of acting chief justice
,127.   Appointment of adhoc judges
,128.   Attendance of retired judges at sittings of the Supreme
,Court
,129.   Supreme Court to be a court of record
,130.   Seat of Supreme Court
,131.   Original jurisdiction of the Supreme Court
,131A.   Exclusive jurisdiction of the Supreme Court in regard to
,questions as to the constitutional validity of Central
,Laws (Repealed)
,132.   Appellate jurisdiction of Supreme Court in appeals from
,high courts in certain cases
,133.   Appellate jurisdiction of Supreme Court in appeals from
,high courts in regard to civil matters
,134.   Appellate jurisdiction of Supreme Court in regard to
,criminal matters
,134A.   Certificate for appeal to the Supreme Court
,135.   Jurisdiction and powers of the federal court under
,existing law to be exercisable by the Supreme Court
,136.   Special leave to appeal by the Supreme Court
,139.   Conferment on the Supreme Court of powers to issue
,certain writs
,139A.   Transfer of certain cases
,140.   Ancillary powers of Supreme Court
,141.   Law declared by Supreme Court to be binding on all
,courts
,142.   Enforcement of decrees and orders of Supreme Court
,"and orders as to discovery, etc."
,143.   Power of President to consult Supreme Court
, 144. Civil and judicial authorities to act in aid of the
,Supreme Court
,144A. Special provisions as to disposal of questions relating
,to constitutional validity of laws (Repealed)
,"145. Rules of court, etc."
,146. Officers and servants and the expenses of the
,Supreme Court
,147. Interpretation
,COMPTROLLER AND AUDITOR GENERAL OF INDIA
,
,148. Comptroller and Auditor General of India
,149. Duties and powers of the Comptroller and Auditor
,General
,150. Form of accounts of the Union and of the states
,151. Audit reports
,GOVERNOR
,
,152.   Definition of state
,153.   Governors of states
,154.   Executive power of state
,155.   Appointment of governor
,156.   Term of office of governor
,157.   Qualifications for appointment as governor
,158.   Conditions of governor’s office
,159.   Oath or affirmation by the governor
,162.   Extent of executive power of state
,STATE MINISTERS AND ADVOCATE GENERAL
,
,163.    Council of ministers to aid and advise governor
,164.    Other provisions as to ministers
,165.    Advocate General for the state
,166.    Conduct of business of the government of a state
,167.    Duties of chief minister as respects the furnishing of
,"information to Governor, etc."
,STATE LEGISIATURE
,
,168.    Constitution of legislatures in states
,169.    Abolition or creation of legislative councils in states
,170.    Composition of the legislative assemblies
,171.    Composition of the legislative councils
,172.    Duration of state legislatures
,173.    Qualification for membership of the state legislature
,"174.    Sessions of the state legislature, prorogation and"
,dissolution
,175.    Right of governor to address and send messages to
,the House of Houses
,176.    Special address by the governor
,177.    Rights of ministers and Advocate General as respects
,the Houses
,178.    The Speaker and Deputy Speaker of the legislative
,assembly
,"179.    Vacation and resignation of, and removal from, the"
,offices of Speaker and Deputy Speaker
,180.    Power of the Deputy Speaker or other person to
,"perform the duties of the office of, or to act as, speaker"
,182.    The Chairman and Deputy Chairman of the legislative
,council
,"183.    Vacation and resignation of, and removal from, the"
,offices of Chairman and Deputy Chairman
,184.    Power of the Deputy Chairman or other person to
,"perform the duties of the office of, or to act as,"
,Chairman
,185.    The Chairman or the Deputy Chairman not to preside
,while a resolution for his removal from office is under
,consideration
,186.    Salaries and allowances of the Speaker and Deputy
,Speaker and the Chairman and Deputy Chairman
,187.    Secretariat of state legislature
,188.    Oath or affirmation by members
,"189.    Voting in Houses, power of Houses to act"
,notwithstanding vacancies and quorum
,190. Vacation of seats
,191. Disqualifications for membership
,192. Decision on questions as to disqualifications of
,members
,193. Penalty for sitting and voting before making oath or
,affirmation under Article 188 or when not qualified or
,when disqualified
,"194. Powers, privileges, etc, of the House of legislatures"
,and of the members and committees thereof
,195. Salaries and allowances of members
,196. Provisions as to introduction and passing of bills
,197. Restriction on powers of legislative council as to bills
,other than money bills
,198. Special procedure in respect of money bills
,199. Definition of “money bills’
,200. Assent to bills
,201. Bills reserved for consideration of the president
,202. Annual financial statement
,"206. Votes on account, votes of credit and exceptional"
,grants
,207. Special provisions as to financial bills
,208. Rules of procedure
,209. Regulation by law of procedure in the legislature of the
,state in relation to financial business
,210. Language to be used in the legislature
,211. Restriction on discussion in the legislature
,212. Courts not to inquire into proceedings of the legislature
,213. Power of governor to promulgate ordinances during
,recess of legislature
,HIGH COURTS
,214.    High courts for states
,215.    High courts to be courts of record
,216.    Constitution of high courts
,217.    Appointment and conditions of the office of a judge of a
,high court
,218.    Application of certain provisions relating to Supreme
,Court to high courts
,219.    Oath or affirmation by judges of high courts
,220.    Restriction on practice after being a permanent judge
,"221.    Salaries etc., of judges"
,222.    Transfer of a judge from one high court to another
,223.    Appointment of acting chief justice
,224.    Appointment of additional and acting judges
,224A.   Appointment of retired judges at sittings of high courts
,225.    Jurisdiction of existing high courts
,226.    Power of high courts to issue certain writs
,226A.   Constitutional validity of Central laws not to be
,considered in proceedings under Article 226
,(Repealed)
,227.    Power of superintendence over all courts by the high
,court
,228.    Transfer of certain cases to high court 228A. Special
,provisions as to disposal of questions relating to
,constitutional validity of State Laws (Repealed)
,229.    Officers and servants and the expenses of high courts
,230.    Extension of jurisdiction of high courts to union
,territories
,231.    Establishment of a common high court for two or more
,states
,232.    Interpretation (Repealed)
,SUBORDINATE COURTS
,233. Appointment of district judges
,"233A. Validation of appointments of, and judgements, etc.,"
,"delivered by, certain district judges"
,234. Recruitment of persons other than district judges to the
,judicial service
,235. Control over subordinate courts
,236. Interpretation
,237. Application of the provisions of this chapter to certain
,class or classes of magistrates
,STATES IN PART B OF THE FIRST SCHEDUIE
,(REPEAIED)
,238. Application of provisions of Part VI to States in Part B
,of the First Schedule (Repealed)
,UNION TERRITORIES
,239. Administration of union territories
,239A. Creation of local legislatures or council of ministers or
,both for certain union territories
,239AA. Special provisions with respect to Delhi
,239AB. Provision in case of failure of constitutional machinery
,239B. Power of administrator to promulgate ordinances
,during recess of legislature
,PANCHAYATS
,243. Definitions
,243A. Gram sabha
,243B. Constitution of panchayats
,243C. Composition of panchayats 243D. Reservation of seats
,"243E. Duration of panchayats, etc."
,"243F. Disqualifications for membership 243G. Powers,"
,authority and responsibilities of panchayats
,"243H. Powers to impose taxes by, and funds of, the"
,panchayats
,243I. Constitution of finance commission to review financial
,position
,243J. Audit of accounts of panchayats 243K. Elections to the
,panchayats 243L. Application to union territories 243M.
,Part not to apply to certain areas 243N. Continuance of
,existing laws and panchayats
,243O. Bar to interference by courts in electoral matters
,MUNICIPALITIES
,243P. Definitions
,243Q. Constitution of municipalities
,243R. Composition of municipalities
,"243S. Constitution and composition of wards committees, etc."
,243T. Reservation of seats
,"243U. Duration of municipalities, etc."
,243V. Disqualifications for membership
,"243W. Powers, authority and responsibilities of municipalities,"
,etc.
,"243X. Power to impose taxes by, and funds of, the"
,municipalities
,243Y. Finance commission
,243Z. Audit of accounts of municipalities 243ZA. Elections to
,the municipalities 243ZB. Application to union territories
,243ZG. Bar to interference by courts in electoral matters
,CO-OPERATIVE SOCIETIES
,243ZH. Definitions
,243ZI. Incorporation of co-operative societies 243ZJ. Number
,and term of members of Board and its office bearers
,243ZK. Election of members of Board 243ZL. Supersession
,and suspension of Board and interim management
,243ZM. Audit of accounts of co-operative societies
,243ZN. Convening of general body meetings 243ZO. Right of a
,member to get information 243ZP. Returns
,243ZQ. Offences and penalties
,243ZR. Application to multi-State co-operative societies
,243ZS. Application to Union territories
,243ZT. Continuance of existing laws
,SCHEDULED AND TRIBAL AREAS
,244. Administration of scheduled areas and tribal areas
,244A. Formation of an autonomous state comprising certain
,tribal areas in Assam and creation of local legislature or
,council of ministers or both therefor
,CENTRE-STATE LEGISLATIVE RELATIONS
,245. Extent of laws made by Parliament and by the
,legislatures of states
,246. Subject-matter of laws made by Parliament and by the
,legislatures of states
,248. Residuary powers of legislation
,249. Power of Parliament to legislate with respect to a
,matter in the State List in the national interest
,250. Power of Parliament to legislate with respect to any
,matter in the State List if a proclamation of emergency
,is in operation
,251. Inconsistency between laws made by Parliament under
,articles 249 and 250 and laws made by the legislatures
,of states
,252. Power of Parliament to legislate for two or more states
,by consent and adoption of such legislation by any
,other state.
,253. Legislation for giving effect to international agreements
,254. Inconsistency between laws made by Parliament and
,laws made by the legislatures of states
,255. Requirements as to recommendations and previous
,sanctions to be regarded as matters of procedure only
,CENTRE-STATE ADMINISTRATIVE RELATIONS
,256. Obligation of states and the Union
,257. Control of the Union over states in certain cases
,257A. Assistance to States by deployment of armed forces or
,other forces of the Union (Repealed)
,"258. Power of the Union to confer powers, etc., on states in"
,certain cases
,258A. Power of the states to entrust functions to the union
,259. Armed Forces in States in Part B of the First Schedule
,(Repealed)
,260. Jurisdiction of the Union in relation to territories outside
,India
,"261. Public acts, records and judicial proceedings"
,CENTRE-STATE FINANCIAL RELATIONS
,264. Interpretation
,265. Taxes not to be imposed save by authority of law
,266. Consolidated Funds and public accounts of India and
,of the states
,267. Contingency Fund
,268. Duties levied by the Union but collected and
,appropriated by the states
,268A. Service tax levied by Union and collected and
,appropriated by the Union and the states (Repealed)
,269. Taxes levied and collected by the Union but assigned
,to the states
,269A. Levy and collection of goods and services tax in course
,of inter-state trade or commerce
,270. Taxes levied and distributed between the Union and
,the states
,271. Surcharge on certain duties and taxes for purposes of
,the Union
,272. Taxes which are levied and collected by the Union and
,may be distributed between the Union and the States
,(Repealed)
,273. Grants in lieu of export duty on jute and jute products
,274. Prior recommendation of president required to bills
,affecting taxation in which states are interested
,275. Grants from the Union to certain states
,"276. Taxes on professions, trades, callings and"
,employments
,277. Savings
,278. Agreement with States in Part B of the First Schedule
,with regard to certain financial matters (Repealed)
,"279. Calculation of net proceeds, etc."
,299. Contracts
,300. Suits and proceedings
,282. Expenditure defrayable by the Union or a state out of
,its revenues
," 283. Custody, etc., of consolidated funds, contingency funds"
,and moneys credited to the public accounts
,284. Custody of suitors” deposits and other moneys
,received by public servants and courts
,285. Exemption of property of the Union from state taxation
,286. Restrictions as to imposition of tax on the sale or
,purchase of goods
,287. Exemption from taxes on electricity
,288. Exemption from taxation by states in respect of water
,or electricity in certain cases
,289. Exemption of property and income of a state from
,Union taxation
,290. Adjustment in respect of certain expenses and
,pensions
,290A. Annual payment to certain devaswom funds
,291. Privy purse sums of Rulers (Repealed)
,292. Borrowing by the Government of India
,293. Borrowing by states
,RIGHT TO PROPERTY
,300A. Persons not to be deprived of property save by
,authority of law
,"TRADE, COMMERCE AND INTERCOURSE"
,"301. Freedom of trade, commerce and intercourse"
,"302. Power of Parliament to impose restrictions on trade,"
,commerce and intercourse
,303. Restrictions on the legislative powers of the Union and
,of the states with regard to trade and commerce
,"304. Restrictions on trade, commerce and intercourse"
,among states
,305. Saving of existing laws and laws providing for state
,monopolies
,306. Power of certain States in Part B of the First Schedule
,to impose restrictions on trade and commerce
,(Repealed)
,307. Appointment of authority for carrying out the purposes
,of Articles 301 to 304
,RIGHTS AND LIABILITIES OF THE GOVERNMENT
,
,"294. Succession to property, assets, rights, liabilities and"
,obligations in certain cases
,"295. Succession to property, assets, rights, liabilities and"
,obligations in other cases
,296. Property accruing by escheat or lapse or bona vacantia
,297. Things of value within territorial waters or continental
,shelf and resources of the exclusive economic zone to
,vest in the Union
,"298. Power to carry on trade, etc."
,PUBLIC SERVICES
,308. Interpretation
,309. Recruitment and conditions of service of persons
,serving the Union or a state
,310. Tenure of office of persons serving the union or a state
,"311. Dismissal, removal or reduction in rank of persons"
,employed in civil capacities under the Union or a state
,312. All-India services
,312A. Power of Parliament to vary or revoke conditions of
,service of officers of certain services
,313. Transitional provisions
,314. Provision for protection of existing officers of certain
,services (Repealed)
,PUBLIC SERVICE COMMISSIONS
,
,315. Public Service Commissions for the Union and for the
,states
,316. Appointment and term of office of members
,317. Removal and suspension of a member of a Public
,Service Commission
,318. Power to make regulations as to conditions of service
,of members and staff of the commission
,319. Prohibition as to the holding of offices by members of
,the commission on ceasing to be such members
,320. Functions of Public Service Commissions
,321. Power to extend functions of Public Service
,Commissions
,322. Expenses of Public Service Commissions
,323. Reports of Public Service Commissions
,TRIBUNALS
,323A. Administrative tribunals
,323B. Tribunals for other matters
,ELECTIONS
,
,"324. Superintendence, direction and control of elections to"
,be vested in an Election Commission
,"325. No person to be ineligible for inclusion in, or to claim to"
,"be included in a special, electoral roll on grounds of"
,"religion, race, caste or sex"
,326. Elections to the House of the people and to the
,legislative assemblies of states to be on the basis of
,adult suffrage
,327. Power of Parliament to make provision with respect to
,elections to legislatures
,328. Power of legislature of a state to make provision with
,respect to elections to such legislature
,329. Bar to interference by courts in electoral matters
,SPECIAL PROVISIONS RELATING TO CERTAIN
,CLASSES
,330. Reservation of seats for scheduled castes and
,scheduled tribes in the House of the people
,331. Representation of the anglo-Indian community in the
,House of the people
,332. Reservation of seats for scheduled castes and
,scheduled tribes in the legislative assemblies of the
,states
,333. Representation of the anglo-Indian community in the
,legislative assemblies of the states
,334. Reservation of seats and special representation to
,cease after seventy years
,335. Claims of scheduled castes and scheduled tribes to
,services and posts
,336. Special provision for anglo-Indian community in certain
,services
,337. Special provision with respect to educational grants for
,the benefit of anglo-Indian community
,338. National Commission for scheduled castes
,338A. National tribes Commission for scheduled
,338B. National Classes Commission for Backward
,339. Control of the Union over the administration of
,scheduled areas and the welfare of scheduled tribes
,340. Appointment of a commission to investigate the
,conditions of backward classes
,341. Scheduled castes
,342. Scheduled tribes
,342A. Socially and educationally backward classes
,OFFICIAL LANGUAGE
,343. Official language of the Union
,344. Commission and committee of Parliament on official
,language
,347. Special provision relating to language spoken by a
,section of the population of a state
,348. Language to be used in the Supreme Court and in the
,"high courts and for acts, bills, etc."
,349. Special procedure for enactment of certain laws
,relating to language
,350. Language to be used in representations for redress of
,grievances
,350A. Facilities for instruction in mothertongue at primary
,stage
,350B. Special officer for linguistic minorities
,351. Directive for development of the hindi language
,EMERGENCY PROVISIONS
,352. Proclamation of emergency (national emergency)
,353. Effect of proclamation of emergency
,354. Application of provisions relating to distribution of
,revenues while a proclamation of emergency is in
,operation
,355. Duty of the Union to protect states against external
,aggression and internal disturbance
,356. Provisions in case of failure of constitutional machinery
,in states (president’s rule)
,357. Exercise of legislative powers under proclamation
,issued under article 356
,358. Suspension of provisions of Article 19 during
,emergencies
,359. Suspension of the enforcement of fundamental rights
,during emergencies 359A. Application of this part to the
,State of Punjab (Repealed)
,360. Provisions as to financial emergency
,MISCELLANEOUS PROVISIONS
,361. Protection of president and governors and rajpramukhs
,362. Rights and privileges of rulers of Indian States
,(Repealed)
,363. Bar to interference by courts in disputes arising out of
,"certain treaties, agreements, etc."
,363A. Recognition granted to rulers of Indian states to cease
,and privy purses to be abolished
,364. Special provisions as to major ports and aerodromes
,"365. Effect of failure to comply with, or to give effect to"
,directions given by the Union (president’s rule)
,366. Definitions
,367. Interpretation
,AMENDMENT OF THE CONSTITUTION
,368. Power of Parliament to amend the Constitution and
,procedure therefor
,"TEMPORARY, TRANSITIONAL AND SPECIAL"
,PROVISIONS
,369. Temporary power to Parliament to make laws with
,respect to certain matters in the State List as if they
,were matters in the Concurrent List
,370. Temporary provisions with respect to the State of
,Jammu and Kashmir
,371. Special provision with respect to the States of
,Maharashtra and Gujarat 371A. Special provision with
,respect to the State of Nagaland
,371B. Special provision with respect to the State of Assam
,371C. Special provision with respect to the State of Manipur
,371D. Special provisions with respect to the State of Andhra
,Pradesh or the state of Telangana
,371E. Establishment of central university in Andhra Pradesh
,371H. Special provision with respect to the State of Arunachal
,Pradesh
,371I. Special provision with respect to the State of Goa
,371J. Special provision with respect to the State of Karnataka
,372. Continuance in force of existing laws and their
,adaptation
,372A. Power of the president to adapt laws
,373. Power of president to make order in respect of persons
,under preventive detention in certain cases
,374. Provisions as to judges of the federal court and
,proceedings pending in the federal court or before His
,Majesty in council
,"375. Courts, authorities and officers to continue to function"
,subject to the provisions of the Constitution
,376. Provisions as to judges of high courts
,377. Provisions as to Comptroller and Auditor General of
,India
,378. Provisions as to Public Service Commissions
,378A. Special provisions as to duration of Andhra Pradesh
,Legislative Assembly
,379. Provisions as to provisional Parliament and the
,Speaker and Deputy Speaker thereof (Repealed)
,380. Provisions as to President (Repealed)
,381. Council of Ministers of the President (Repealed)
,382. Provisions as to provisional Legislatures for States in
,Part A of the First Schedule (Repealed)
,385. Provisions as to provisional Legislatures in States in
,Part B of the First Schedule (Repealed)
,386. Council of Ministers for States in Part B of the First
,Schedule (Repealed)
,387. Special provision as to determination of population for
,the purposes of certain elections (Repealed)
,388. Provisions as to the filling of casual vacancies in the
,provisional Parliament and provisional Legislatures of
,the States (Repealed)
,389. Provisions as to Bills pending in the Dominion
,Legislature and in the Legislatures of Provinces and
,Indian States (Repealed)
,390. Moneys received or raised or expenditure incurred
,between the commencement of the Constitution and
,"the 31st day of March, 1950 (Repealed)"
,391. Power of the President to amend the First and Fourth
,Schedules in certain contingencies (Repealed)
,392. Power of the President to remove difficulties
,"SHORT TITLE, COMMENCEMENT, ETC."
,393.   Short title
,394.   Commencement
,394A.   Authoritative text in the hindi language
,395.   Repeals
,"Appendix II Subjects of Union, State"
,and Concurrent Lists
,UNION LIST (LIST-I)
,1. Defence of India
,"2. Naval, military and air forces; any other armed forces of"
,the Union
,2A. Deployment of any armed force of the Union in any
,state in aid of the civil power
,3. Cantonment areas and local self-government in such
,areas
,"4. Naval, military and air force works"
,"5. Arms, firearms, ammunition, and explosives"
,6. Atomic energy and mineral resources necessary for its
,production
,7. Defence industries
,8. Central Bureau of Intelligence and investigation
,9. Preventive detention for reasons connected with
,"defence, foreign affairs, or the security of India"
,10. Foreign affairs
,"11. Diplomatic, consular and trade representation"
,12. United Nations Organisation
,"13. International conferences, associations and other"
,bodies
,"14. Treaties, agreements and conventions with foreign"
,countries
,15. War and peace
,16. Foreign jurisdiction
,"17. Citizenship, naturalisation and aliens"
,18. Extradition
,19. Passports and visas
,20. Pilgrimages to places outside India
,21. Piracies and crimes committed on the high seas or in
,the air and offences against the law of nations.
,22. Railways
,23. National highways
,24. Shipping and navigation on national waterways
,25. Maritime shipping and navigation
,26.    Lighthouses for the safety of shipping and aircraft
,27.    Major ports
,"28.    Port quarantine, seaman and marine hospitals"
,29.    Airways; aircraft and air navigation; provision of
,aerodromes
,"30.    Carriage of passengers and goods by railway, sea, air"
,or national waterways
,"31.    Posts     and     telegraphs;   telephones,      wireless,"
,broadcasting and other like forms of communication
,32.    Property of the Union
,33.    (Omitted)
,34.    Courts of wards for the estates of rulers of Indian states
,35.    Public debt of the Union
,"36.    Currency, coinage and legal tender; foreign exchange"
,37.    Foreign loans
,38.    Reserve Bank of India
,39.    Post office savings bank
,40.    Lotteries organised by the Union or state
,41.    Trade and commerce with foreign countries
,42.    Inter-state trade and commerce
,"43.    Trading corporations, including banking, insurance and"
,financial corporations but not including co-operative
,societies
,"44.    Corporations, whether trading or not, with objects not"
,confined to one state
,45.    Banking
,"49.    Patents, inventions and designs; copyright; trade-"
,marks and merchandise marks
,50.    Establishment of standards of weight and measure
,51.    Establishment of standards of quality for goods to be
,exported out of India or transported from one state to
,another
,"52.    Industries, the control of which by the Union is in the"
,public interest
,53.    Oil fields and mineral oil resources; petroleum and
,petroleum products; other liquids and substances which
,are inflammable
,54. Regulation of mines and mineral development in the
,public interest
,55. Regulation of labour and safety in mines and oil fields
,56. Regulation and development of interstate rivers and
,river valleys
,57. Fishing and fisheries beyond territorial waters
,"58. Manufacture, supply and distribution of salt by Union"
,and other agencies
,59. Cultivation and manufacture of opium and its export
,60. Sanctioning of cinematograph films for exhibition
,61. Industrial disputes concerning Union employees
,"62. National Library, the Indian Museum, the Imperial War"
,"Museum, the Victoria Memorial and the Indian War"
,"Memorial, and any other like institution of national"
,importance
,"63. Benaras Hindu University, the Aligarh Muslim"
,University and the Delhi University; any other institution
,of national importance
,64. Scientific or technical education institutions of national
,importance
,"65. Union agencies and institutions for training, research or"
,detection of crime
,66. Standards in institutions for higher education or
,research and scientific and technical institutions
,"68. The Survey of India, the Geological, Botanical,"
,Zoological and Anthropological Surveys of India;
,Meteorological organisations
,69. Census
,70. Union Public Services; All-India Services; Union Public
,Service Commission
,71. Union pensions
,"72. Elections to Parliament, the legislatures of states and"
,the offices of President and Vice-President; the Election
,Commission
,73. Salaries and allowances of members and presiding
,officers of Parliament
,"74. Powers, privileges and immunities of each House of"
,Parliament and of the members and the committees of
,      each House
,"75.    Emoluments and service conditions of the president,"
,"governors, the ministers for the Union and the"
,Comptroller and Auditor General
,76.    Audit of the accounts of the Union and of the states
,"77.    Organisation, jurisdiction and powers of the Supreme"
,Court
,78.    Organisation of the high courts
,79.    Extension of the jurisdiction of a high court to any union
,territory
,80.    Extension of the powers and jurisdiction of members of
,a police force belonging to any state to any area
,outside that state
,81.    Inter-state migration; inter-state quarantine
,82.    Taxes on income other than agricultural income
,83.    Duties of customs including export duties
,84.    Duties of excise on the following goods manufactured
,"or produced in India, namely:-"
,(a) petroleum crude
,(b) high speed diesel
,(c) motor spirit (commonly known as petrol)
,(d) natural gas
,(e) aviation turbine fuel; and
,(f) tobacco and tobacco products
,87.    Estate duty in respect of property other than
,agricultural land
,88.    Duties in respect of succession to property other than
,agricultural land
,"89.    Terminal taxes on goods or passengers, carried by"
,"railway, sea or air; taxes on railway fares and freights"
,90.    Taxes other than stamp duties on transactions in stock
,exchanges and futures markets
,"91.    Rates of stamp duty in respect of bills of exchange,"
,"cheques, promissory notes, bills of lading, letters of"
,"credit, policies of insurance, transfer of shares,"
,"debentures, proxies and receipts"
,92.    (Omitted)
,92A. Taxes on the sale or purchase of goods other than
,"newspapers, where such sale or purchase takes place"
,in the course of inter-state trade or commerce
,92B. Taxes on the consignment of goods in the course of
,inter-state trade or commerce
,92C. (Omitted)
,93. Offences against laws with respect to any of the
,matters in this list
,"94. Inquiries, surveys and statistics for the purpose of any"
,of the matters in this list
,95. Jurisdiction and powers of all courts (except the
,Supreme Court) with respect to any of the matters in
,this list; admiralty jurisdiction
,"96. Fees in respect of any of the matters in this list, but not"
,including fees taken in any court
,97. Any other matter not enumerated in List II or List III
,including any tax not mentioned in either of those lists
,STATE LIST (LIST-II)
,
,1.   Public order
,2.   Police
,3.   Officers and servants of the high court
,"7.   Pilgrimages, other than pilgrimages to places outside"
,India
,8.   Intoxicating liquors
,9.   Relief of the disabled and unemployable
,10.    Burials and burial grounds
,11.   (Omitted)
,"12.    Libraries, museums and other similar institutions;"
,ancient and historical monuments and records other
,than those of national importance
,"13.    Communications, that is, roads, bridges, ferries and"
,other means of communication not specified in List I
,"14.    Agriculture, including agricultural education and"
,research
,15.    Preservation of stock and prevention of animal
,diseases
,16.    Pounds and the prevention of cattle trespass
,"17.    Water, that is, water supplies, irrigation and canals,"
,"drainage and embankments, water storage and water"
,power
,"18.    Land, that is, right in or over land, land tenures and the"
,collection of rents
,19.    (Omitted)
,20.    (Omitted)
,21.    Fisheries
,22.    Courts of wards
,23.    Regulation of mines and mineral development
,24.    Industries
,25.    Gas and gas-works
,26.    Trade and commerce within the state
,"27.    Production, supply and distribution of goods"
,28.    Markets and fairs
,29.    (Omitted)
,30. Money-lending and money-lenders; relief of agricultural
,indebtedness
,31. Inns and inn-keepers
,"32. Corporation, other than those specified in List I, and"
,"universities; unincorporated trading, literacy, scientific,"
,religious and other societies and associations; co-
,operative societies
,36. (Omitted)
,37. Elections to the legislature of the state
,38. Salaries and allowances of members and presiding
,officers of the legislature of the state
,"39. Powers, privileges and immunities of the legislature of"
,the state and of the members and the committees
,thereof
,40. Salaries and allowances of ministers for the state
,41. States public services; State Public Service
,Commission
,42. State pensions
,43. Public debt of the state
,44. Treasure trove
,"45. Land revenue, including maintenance of land records"
,46. Taxes on agricultural income
,47. Duties in respect of succession to agricultural land
,48. Estate duty in respect of agricultural land
,49. Taxes on lands and buildings
,50. Taxes on mineral rights
,51. Duties of excise on alcoholic liquors for human
,"consumption; opium, Indian hemp and other narcotic"
,"drugs and narcotics, but not including medicinal and"
,toilet preparations containing alcohol
,52. (Omitted)
,53. Taxes on the consumption or sale of electricity
,"54. Taxes on the sale of petroleum crude, high speed"
,"diesel, motor spirit (commonly known as petrol), natural"
,"gas, aviation turbine fuel and alcoholic liquor for human"
,"consumption, but not including sale in the course of"
,inter-state trade or commerce or sale in the course of
,international trade or commerce of such goods
,55. (Omitted)
,"60. Taxes on professions, trades, callings and"
,employments
,61. Capitation taxes
,62. Taxes on entertainments and amusements to the
,extent levied and collected by a Panchayat or a
,Municipality or a Regional Council or a District Council
,63. Rates of stamp duty in respect of documents other than
,those specified in List I
,64. Offences against laws with respect to any of the
,matters in this list
,"65. Jurisdiction and powers of all courts, except the"
,"Supreme Court, with respect to any of the matters in"
,this list
,"66. Fees in respect of any of the matters in this list, but not"
,including fees taken in any court
,CQNCURRENT LIST (LIST-M)
,
,"1. Criminal Law, including all matters included in the"
,Indian Penal Code
,"2. Criminal procedure, including all matters included in the"
,Code of Criminal Procedure
,3. Preventive detention for reasons connected with the
,"security of a state, the maintenance of public order, or"
,the maintenance of supplies and services essential to
,the community
,4. Removal from one state to another state of prisoners
,and accused persons
,5. Marriage and divorce; infants and minors; adoption;
,"wills, intestacy and succession; joint family and partition"
,6. Transfer of property other than agricultural land;
,registration of deeds and documents
,7. Contracts
,8. Actionable wrongs
,9. Bankruptcy and insolvency
,10. Trust and Trustees
,11. Administrators-general and official trustees
,11A. Administration of justice; constitution and organisation
,"of all courts, except the Supreme Court and the high"
,courts
,"12. Evidence and oaths; recognition of laws, public acts"
,"and records, and judicial proceedings"
,"13. Civil procedure, including all matters included in the"
,Code of Civil Procedure
,"14. Contempt of court, but not including contempt of the"
,Supreme Court
,15. Vagrancy; nomadic and migratory tribes
,16. Lunacy and mental deficiency
,17. Prevention of cruelty to animals
,17A. Forests
,17B. Protection of wild animals and birds
,18. Adulteration of foodstuffs and other goods
,19. Drugs and poisons
, 20. Economic and social planning
,20A. Population control and family planning
,"21. Commercial and industrial monopolies, combines and"
,trusts
,22. Trade unions; industrial and labour disputes
,23. Social security and social insurance; employment and
,unemployment
,"24. Welfare of labour including conditions of work,"
,"provident funds, employers” liability, workmen’s"
,"compensation, invalidity and old age pensions and"
,maternity benefits
,"25. Education, including technical education, medical"
,education and universities
,"26. Legal, medical and other professions"
,27. Relief and rehabilitation of persons
,"28. Charitable institutions, religious endowments and"
,religious institutions
,29. Infectious or contagious diseases or pests affecting
,"men, animals or plants"
,30. Vital statistics including registration of births and deaths
,31. Ports other than major ports
,32. Shipping and navigation on inland waterways
,"33. Trade and commerce in, and the production, supply"
,"and distribution of, foodstuffs, including edible oilseeds"
,"and oils; cattle fodder; raw cotton, and cotton seeds;"
,and raw jute
,33A. Weights and measures except establishment of
,standards
,34. Price control
,35. Mechanically propelled vehicles including the principles
,on which taxes on such vehicles are to be levied
,36. Factories
,37. Boilers
,38. Electricity
,"39. Newspapers, books and printing presses"
,40. Archaeological sites and remains other than those of
,national importance
,41. Evacuee property (including agricultural land)
,42. Acquisition and requisitioning of property
,43. Recovery in a state of claims in respect of taxes and
,other public demands
,44. Stamp duties other than duties or fees collected by
,"means of judicial stamps, but not including rates of"
,stamp duty
,45. Inquiries and statistics for the purposes of any of the
,matters specified in List II or List III
,"46. Jurisdiction and powers of all courts, except the"
,"Supreme Court, with respect to any of the matters in"
,this list
,"47. Fees in respect of any of the matters in this list, but not"
,including fees taken in any court
, Appendix III           Table of Precedence
,The Table of Precedence is related to the rank and order of the
,"officials of the Union and State Governments. But, the order in"
,this Table is meant for state and ceremonial occassions and has
,no application in the day-to-day business of Government. The
,"present notification on this subject was issued on 26 July, 1979."
,This notification superseded all the previous notifications and
,was also amended many times. The updated version of the
,"Table, containing all the amendments made therein so far (2019),"
,is given below:
,1. President
,2. Vice-President
,3. Prime Minister
,4. Governors of states within their respective states
,5. Former presidents
,5A. Deputy Prime Minister
,6. Chief Justice of India Speaker of Lok Sabha
,7. Cabinet Ministers of the Union
,Chief Ministers of States within their respective States
,"Vice-Chairperson, NITI Aayog Former Prime Ministers"
,Leaders of Opposition in Rajya Sabha and Lok Sabha
,7A. Holders of Bharat Ratna decoration
,8. Ambassadors Extraordinary and Plenipotentiary and
,High Commissioners of Commonwealth countries
,accredited to India
,Chief Ministers of States outside their respective States
,Governors of States outside their respective States
,9. Judges of Supreme Court
,"9A. Chairperson, Union Public Service Commission"
,Chief Election Commissioner
,Comptroller & Auditor General of India
,"10. Deputy Chairman, Rajya Sabha"
,"Deputy Chief Ministers of States Deputy Speaker, Lok"
,Sabha
,Members of the NITI Aayog
,      Ministers of State of the Union (and any other Minister
,in the Ministry of Defence for defence matters)
,11.   Attorney General of India
,Cabinet Secretary
,Lieutenant Governors within their respective Union
,Territories
,12.    Chiefs of Staff holding the rank of full General or
,equivalent rank
,13.    Envoys Extraordinary and Ministers Plenipotentiary
,accredited to India
,14.    Chairmen and Speakers of State Legislatures within
,their respective States
,Chief Justices of High Courts within their respective
,jurisdictions
,15.    Cabinet Ministers in States within their respective
,States
,Chief Ministers of Union Territories and Chief Executive
,"Councillor, Delhi within their respective Union Territories"
,Deputy Ministers of the Union
,16.    Officiating Chiefs of Staff holding the rank of Lieutenant
,General or equivalent rank
,"17.    Chairman, Central Administrative Tribunal"
,"Chairman, Minorities Commission"
,"Chairperson, National Commission for Scheduled"
,Castes
,"Chairperson, National Commission for Scheduled"
,Tribes
,Chief Justices of High Courts outside their respective
,jurisdictions
,Puisne Judges of High Courts within their respective
,jurisdictions
,18.    Cabinet Ministers in States outside their respective
,States
,Chairmen and Speakers of State Legislatures outside
,their respective States
,"Chairman, Monopolies and Restrictive Trade Practices"
,Commission
,Deputy Chairmen and Deputy Speakers of State
,      Legislatures within their respective States
,Ministers of State in States within their respective
,States
,"Ministers of Union Territories and Executive Councilors,"
,"Delhi, within their respective Union Territories"
,Speakers of Legislative Assemblies in Union Territories
,and Chairman of Delhi Metropolitan Council within their
,respective Union Territories
,19.    Chief Commissioners of Union Territories not having
,"Councils of Ministers, within their respective Union"
,Territories
,Deputy Ministers in States within their respective States
,Deputy Speakers of Legislative Assemblies in Union
,Territories and Deputy Chairman of Metropolitan
,"Council, Delhi, within their respective Union Territories"
,20.    Deputy Chairmen and Deputy Speakers of State
,"Legislatures, outside their respective States"
,Ministers of State in States outside their respective
,States
,Puisne Judges of High Courts outside their respective
,jurisdictions
,21.    Members of Parliament
,22.    Deputy Ministers in States outside their respective
,States
,23.    Army Commanders / Vice-Chief of the Army Staff or
,equivalent in other services Chief Secretaries to State
,Governments        within     their    respective    States
,Commissioner for Linguistic Minorities Commissioner
,"for Scheduled Castes and Scheduled Tribes Members,"
,"Minorities Commission Members, National Commission"
,for Scheduled Castes
,"Members, National Commission for Scheduled Tribes"
,Officers of the rank of full General or equivalent rank
,Secretaries to the Government of India (including
,officers holding this office ex-officio)
,"Secretary, Minorities Commission Secretary, Scheduled"
,"Castes Commission Secretary, Scheduled Tribes"
,Commission Secretary to the President Secretary to the
,"    Prime Minister Secretary, Rajya Sabha/Lok Sabha"
,Solicitor General
,"Vice-Chairman, Central Administrative Tribunal"
,24. Officers of the rank of Lieutenant General or equivalent
,rank
,25. Additional Secretaries to the Government of India
,Additional Solicitor General Advocate Generals of
,"States Chairman, Tariff Commission Charge d” Affairs"
,and Acting High Commissioners a pied and ad interim
,Chief Ministers of Union Territories and Chief Executive
,"Councillor, Delhi, outside their respective Union"
,Territories Chief Secretaries of State Governments
,outside their respective States
,Deputy Comptroller and Auditor General Deputy
,Speakers of Legislative Assemblies in Union Territories
,"and Deputy Chairman, Delhi Metropolitan Council,"
,"outside their respective Union Territories Director,"
,"Central Bureau of Investigation Director General,"
,"Border Security Force Director General, Central"
,Reserve Police
,"Director, Intelligence Bureau"
,Lieutenant Governors outside their respective Union
,Territories
,"Members, Central Administrative Tribunal"
,"Members, Monopolies and Restrictive Trade Practices"
,"Commission        Members,     Union    Public    Service"
,Commission
,"Ministers of Union Territories and Executive Councillors,"
,"Delhi, outside their respective Union Territories"
,Principal Staff Officers of the Armed Forces of the rank
,of Major General or equivalent rank
,Speakers of Legislative Assemblies in Union Territories
,"and Chairman of Delhi Metropolitan Council, outside"
,their respective Union Territories
,26. Joint Secretaries to the Government of India and
,officers of equivalent rank.
,Officers of the rank of Major-General or equivalent rank
,Appendix IV Constitutional
,Amendments at a Glance
,Amendment         Amended Provisions of the
,Number and        Constitution
,Year
,First Amendment    1. Empowered the state to make
,"Act, 1951             special provisions for the"
,advancement of socially and
,economically backward classes.
,2. Provided for the saving of laws
,"providing for acquisition of estates,"
,etc.
,3. Added Ninth Schedule to protect the
,land reform and other laws included
,in it from the judicial review.
,4. Added three more grounds of
,restrictions on freedom of speech
,"and expression, viz., public order,"
,friendly relations with foreign states
,"and incitement to an offence. Also,"
,made the restrictions “reasonable”
,"and thus, justiciable in nature."
,5. Provided that state trading and
,nationalisation of any trade or
,business by the state is not to be
,invalid on the ground of violation of
,the right to trade or business.
,Second            Readjusted the scale of representation in
,Amendment         the Lok Sabha by providing that one
,"Act, 1952         member could represent even more than"
,"7,50,000 persons."
,Amendment         Amended Provisions of the
,Number and        Constitution
,Year
,Third Amendment   Empowered the Parliament to control the
,"Act, 1954         production, supply and distribution of the"
,"foodstuffs, cattle fodder, raw cotton,"
,cotton seed and raw jute in the public
,interest.
,Fourth             1. Made the scale of compensation
,Amendment             given in lieu of compulsory
,"Act, 1955             acquisition of private property beyond"
,the scrutiny of courts.
,2. Authorised the state to nationalise
,any trade.
,3. Included some more Acts in the
,Ninth Schedule.
,4. Extended the scope of Article 31 A
,(savings of laws).
,Fifth Amendment   Empowered the president to fix the time-
,"Act, 1955         limit for the state legislatures to express"
,their views on the proposed Central
,"legislation affecting the areas,"
,boundaries and names of the states.
,Sixth Amendment   Included a new subject in the Union list
,"Act, 1956         i.e., taxes on the sale and purchase of"
,goods in the course of inter-state trade
,and commerce and restricted the state’s
,power in this regard.
,Amendment        Amended Provisions of the
,Number and       Constitution
,Year
,Seventh           1. Abolished the existing classification
,"Amendment            of states into four categories i.e., Part"
,"Act, 1956            A, Part B, Part C and Part D states,"
,and reorganised them into 14 states
,and 6 union territories.
,2. Extended the jurisdiction of high
,courts to union territories.
,3. Provided for the establishment of a
,common high court for two or more
,states.
,4. Provided for the appointment of
,additional and acting judges of the
,high court.
,Eighth           Extended the reservation of seats for the
,"Amendment        SCs and STs, and special representation"
,"Act, 1960        for the Anglo-Indians in the Lok Sabha"
,and the state legislative assemblies for a
,"period of ten years (i.e., up to 1970)."
,Ninth            Facilitated the cession of Indian territory
,Amendment        of Berubari Union (located in West
,"Act, 1960        Bengal) to Pakistan as provided in the"
,Indo-Pakistan Agreement (1958).
,Tenth
,Incorporated Dadra and Nagar Haveli in
,"Amendment Act,"
,the Indian Union.
,1961
,Amendment    Amended Provisions of the
,Number and   Constitution
,Year
,Eleventh      1. Changed the procedure of election of
,Amendment        the vice-president by providing for an
,"Act, 1961        electoral college instead of a joint"
,meeting of the two Houses of
,Parliament.
,2. Provided that the election of the
,president or vice-president cannot be
,challenged on the ground of any
,vacancy in the appropriate electoral
,college.
,"Twelfth      Incorporated Goa, Daman and Diu in the"
,Amendment    Indian Union.
,"Act, 1962"
,Thirteenth   Gave the status of a state to Nagaland
,Amendment    and made special provisions for it.
,"Act, 1962"
,Fourteenth    1. Incorporated Puducherry in the
,Amendment        Indian Union.
,"Act, 1962     2. Provided for the creation of"
,legislatures and council of ministers
,for the Union Territories of Himachal
,"Pradesh, Manipur, Tripura, Goa,"
,"Daman and Diu, and Puducherry."
,Amendment    Amended Provisions of the
,Number and   Constitution
,Year
,Fifteenth    1. Enabled the high courts to issue writs
,Amendment       to any person or authority even
,"Act, 1963       outside its territorial jurisdiction if the"
,cause of action arise within its
,territorial limits.
,2. Increased the retirement age of high
,court judges from 60 to 62 years.
,3. Provided for appointment of retired
,judges of the high courts as acting
,judges of the same court.
,4. Provided for compensatory
,allowance to judges who are
,transferred from one high court to
,another.
,5. Enabled the retired judge of a high
,court to act as adhoc judge of the
,Supreme Court.
,6. Provided for the procedure for
,determining the age of the Supreme
,Court and high court judges.
,Sixteenth    1. Empowered the state to impose
,Amendment       further restriction on the rights to
,"Act, 1963       freedom of speech and expression,"
,to assemble peaceably and to form
,associations in the interests of
,sovereignty and integrity of India.
,2. Included sovereignty and integrity in
,the forms of oaths or affirmations to
,be subscribed by contestants to the
,"legislatures, members of the"
,"legislatures, ministers, judges and"
,CAG of India.
,Amendment        Amended Provisions of the
,Number and       Constitution
,Year
,Seventeenth       1. Prohibited the acquisition of land
,Amendment            under personal cultivation unless the
,"Act, 1964            market value of the land is paid as"
,compensation.
,2. Included 44 more Acts in the Ninth
,Schedule.
,Eighteenth       Made it clear that the power of
,Amendment        Parliament to form a new state also
,"Act, 1966        includes a power to form a new state or"
,union territory by uniting a part of a state
,or a union territory to another state or
,union territory.
,Nineteenth       Abolished the system of Election
,Amendment        Tribunals and vested the power to hear
,"Act, 1966        election petitions in the High Courts."
,Twentieth        Validated certain appointments of district
,Amendment        judges in the UP which were declared
,"Act, 1966        void by the Supreme Court."
,Twenty-First     Included sindhi as the 15th language in
,Amendment        the Eight Schedule.
,"Act, 1967"
,Twenty-Second    Facilitated the creation of a new
,"Amendment Act,   autonomous State of Meghalaya within"
,1969             the State of Assam.
,Extended the reservation of seats for the
,"SCs and STs, and special representation"
,Twenty-Third
,for the Anglo-Indians in the Lok Sabha
,"Amendment Act,"
,and the state legislative assemblies for a
,1969
,"further period of ten years (i.e., up to"
,1980).
,Amendment        Amended Provisions of the
,Number and       Constitution
,Year
,Twenty-Fourth     1. Affirmed the power of Parliament to
,"Amendment Act,       amend any part of the Constitution"
,1971                 including fundamental rights.
,2. Made it compulsory for the president
,to give his assent to a Constitutional
,Amendment Bill.
,Twenty-Fifth      1. Curtailed the fundamental right to
,Amendment            property.
,"Act, 1971         2. Provided that any law made to give"
,effect to the Directive Principles
,contained in Article 39 (b) or (c)
,cannot be challenged on the ground
,of violation of the rights guaranteed
,"by Articles 14, 19 and 31."
,Twenty-Sixth     Abolished the privy purses and privileges
,"Amendment Act,   of the former rulers of princely states."
,1971
,Twenty-Seventh    1. Empowered the administrators of
,"Amendment,           certain union territories to promulgate"
,1971                 ordinances.
,2. Made certain special provisions for
,new Union Territories of Arunachal
,Pradesh and Mizoram.
,3. Authorised the Parliament to create
,the legislative assembly and the
,council of ministers for the new state
,of Manipur.
,Twenty-Eighth    Abolished the special privileges of ICS
,"Amendment Act,   officers and empowered the Parliament"
,1972             to determine their service conditions.
,Amendment        Amended Provisions of the
,Number and       Constitution
,Year
,Twenty-Ninth     Included two Kerala Acts on land reforms
,"Amendment Act,   in the Ninth Schedule."
,1972
,Thirtieth        Did away with the provision which
,Amendment        allowed appeal to the Supreme Court in
,"Act, 1972        civil cases involving an amount of"
,"‘20,000, and provided instead that an"
,appeal can be filed in the Supreme Court
,only if the case involves a substantial
,question of law.
,Thirty-First     Increased the number of Lok Sabha
,Amendment        seats from 525 to 545.
,"Act, 1972"
,Thirty-Second    Made special provisions to satisfy the
,"Amendment Act,   aspirations of the people of the"
,1973             Telengana region in Andhra Pradesh.
,Provided that the resignation of the
,members of Parliament and the state
,Thirty-Third
,legislatures may be accepted by the
,Amendment
,Speaker/Chairman only if he is satisfied
,"Act, 1974"
,that the resignation is voluntary or
,genuine.
,Thirty-Fourth    Included twenty more land tenure and
,"Amendment Act,   land reforms acts of various states in the"
,1974             Ninth Schedule.
,Terminated the protectorate status of
,Sikkim and conferred on it the status of
,Thirty-Fifth     an associate state of the Indian Union.
,Amendment        The Tenth Schedule was added laying
,"Act, 1974        down the terms and conditions of"
,association of Sikkim with the Indian
,Union.
,Amendment        Amended Provisions of the
,Number and       Constitution
,Year
,Thirty-Sixth     Made Sikkim a full-fledged State of the
,Amendment        Indian Union and omitted the Tenth
,"Act, 1975        Schedule."
,Thirty-Seventh   Provided legislative assembly and
,"Amendment Act,   council of ministers for the Union Territory"
,1975             of Arunachal Pradesh.
,Thirty-Eighth     1. Made the declaration of emergency
,"Amendment Act,       by the president non-justiciable."
,1975              2. Made the promulgation of ordinances
,"by the president, governors and"
,administrators of union territories
,non-justiciable.
,3. Empowered the president to declare
,different proclamations of national
,emergency on different grounds
,simultaneously.
,Thirty-Ninth      1. Placed the disputes relating to the
,"Amendment            president, vice-president, prime"
,"Act, 1975            minister and Speaker beyond the"
,scope of the judiciary. They are to be
,decided by such authority as may be
,determined by the Parliament.
,2. Included certain Central acts in the
,Ninth Schedule.
,Amendment            Amended Provisions of the
,Number and           Constitution
,Year
,Fortieth              1. Empowered the Parliament to specify
,Amendment                from time to time the limits of the
,"Act, 1976                territorial waters, the continental"
,"shelf, the exclusive economic zone"
,(EEZ) and the maritime zones of
,India.
,2. Included 64 more Central and state
,"laws, mostly relating to land reforms,"
,in the Ninth Schedule.
,Forty-First          Raised the retirement age of members of
,Amendment            State Public Service Commission and
,"Act, 1976            Joint Public Service Commission from 60"
,to 62.
,"Forty-Second          1. Added three new words (i.e.,"
,"Amendment Act,           socialist, secular and integrity) in the"
,1976 (The most           Preamble.
,comprehensive         2. Added Fundamental Duties by the
,amendment                citizens (new Part IV A).
,made so far to
,3. Made the president bound by the
,the Constitution;
,advise of the cabinet.
,it is known as
,“Mini-                4. Provided for administrative tribunals
,Constitution’; it        and tribunals for other matters
,gave effect to the       (Added Part XIV A).
,recommendations       5. Froze the seats in the Lok Sabha
,of Swaran Singh          and state legislative assemblies on
,Committee.)              the basis of 1971 census till 2001.
,6. Made the constitutional amendments
,beyond judicial scrutiny.
,7. Curtailed the power of judicial review
,and writ jurisdiction of the Supreme
,Court and high courts.
,Amendment    Amended Provisions of the
,Number and   Constitution
,Year
,8. Raised the tenure of Lok Sabha and
,state legislative assemblies from 5 to
,6 years.
,9. Provided that the laws made for the
,implementation of Directive
,Principles cannot be declared invalid
,by the courts on the ground of
,violation of some Fundamental
,Rights.
,10. Empowered the Parliament to make
,laws to deal with anti-national
,activities and such laws are to take
,precedence over Fundamental
,Rights.
,11. Added three new Directive Principles
,"viz., equal justice and free-legal aid,"
,participation of workers in the
,management of industries and
,"protection of environment, forests"
,and wild life.
,12. Facilitated the proclamation of
,national emergency in a part of
,territory of India.
,13. Extended the one-time duration of
,the President’s rule in a state from 6
,months to one year.
,14. Empowered the Centre to deploy its
,armed forces in any state to deal with
,a grave situation of law and order.
,15. Shifted five subjects from the state
,"list to the concurrent list, viz,"
,"education, forests, protection of wild"
,"animals and birds, weights and"
,Amendment           Amended Provisions of the
,Number and          Constitution
,Year
,measures and administration of
,"justice, constitution and organisation"
,of all courts except the Supreme
,Court and the high courts.
,16. Did away with the requirement of
,quorum in the Parliament and the
,state legislatures.
,17. Empowered the Parliament to decide
,from time to time the rights and
,privileges of its members and
,committees.
,18. Provided for the creation of the All-
,India Judicial Service.
,19. Shortened the procedure for
,disciplinary action by taking away the
,right of a civil servant to make
,representation at the second stage
,"after the inquiry (i.e., on the penalty"
,proposed).
,Forty-Third          1. Restored the jurisdiction of the
,"Amendment Act,          Supreme Court and the high courts in"
,1977 (Enacted by        respect of judicial review and issue of
,the Janata              writs.
,Government to        2. Deprived the Parliament of its special
,nullify some of         powers to make laws to deal with
,the distortions         anti-national activities.
,introduced by the
,42nd Amendment
,Act of 1976)
,Forty-Fourth         1. Restored the original term of the Lok
,"Amendment Act,          Sabha and the state legislative"
,"1978 (Enacted by        assemblies (i.e., 5 years)."""
,the Janata
,Government
,Amendment            Amended Provisions of the
,mainly
,Number  to and
,nullify   Constitution
,some
,Year of the other
,distortions
,2. Restored the provisions with regard
,introduced by the
,to quorum in the Parliament and
,42nd Amendment
,state legislatures.
,"Act, 1976)"
,3. Omitted the reference to the British
,House of Commons in the provisions
,pertaining to the parliamentary
,privileges.
,4. Gave constitutional protection to
,publication in newspaper of true
,reports of the proceedings of the
,Parliament and the state legislatures.
,5. Empowered the president to send
,back once the advice of cabinet for
,"reconsideration. But, the"
,reconsidered advice is to be binding
,on the president.
,6. Deleted the provision which made
,"the satisfaction of the president,"
,governor and administrators final in
,issuing ordinances.
,7. Restored some of the powers of the
,Supreme Court and high courts.
,8. Replaced the term “internal
,disturbance” by “armed rebellion” in
,respect of national emergency.
,9. Made the President to declare a
,national emergency only on the
,written recommendation of the
,cabinet.
,10. Made certain procedural safeguards
,with respect to national emergency
,and President’s rule.
,Amendment        Amended Provisions of the
,Number and       Constitution
,Year
,11. Deleted the right to property from the
,list of Fundamental Rights and made
,it only a legal right.
,12. Provided that the fundamental rights
,guaranteed by Articles 20 and 21
,cannot be suspended during a
,national emergency.
,13. Omitted the provisions which took
,away the power of the court to decide
,"the election disputes of the president,"
,"the vice-president, the prime minister"
,and the Speaker of the Lok Sabha.
,Forty-Fifth      Extended the reservation of seats for the
,Amendment        SCs and STs and special representation
,"Act, 1980        for the Anglo-Indians in the Lok Sabha"
,and the state legislative assemblies for a
,"further period of ten years (i.e., up to"
,1990).
,Forty-Sixth       1. Enabled the states to plug loopholes
,Amendment            in the laws and realise sales tax
,"Act, 1982            dues."
,2. Brought about some uniformity in tax
,rates on certain items.
,Forty-Seventh    Included 14 land reforms Acts of various
,"Amendment Act,   states in the Ninth Schedule."
,1984
,Forty-Eighth     Facilitated the extension of President’s
,Amendment        rule in Punjab beyond one year without
,"Act, 1984        meeting the two special conditions for"
,such extension.
,Amendment         Amended Provisions of the
,Number and        Constitution
,Year
,Forty-Ninth       Gave a constitutional sanctity to the
,Amendment         Autonomous District Council in Tripura.
,"Act, 1984"
,Fiftieth          Empowered the Parliament to restrict the
,Amendment         Fundamental Rights of persons
,"Act, 1984         employed in intelligence organisations"
,and telecommunication systems set up
,for the armed forces or intelligence
,organisations.
,Fifty-First       Provided for reservation of seats in the
,"Amendment         Lok Sabha for STs in Meghalaya,"
,"Act, 1984         Arunachal Pradesh, Nagaland and"
,Mizoram as well as in the Legislative
,Assemblies of Meghalaya and Nagaland.
,Fifty-Second      Provided for disqualification of members
,"Amendment Act,    of Parliament and state legislatures on"
,1985 (popularly   the ground of defection and added a new
,known as Anti-    Tenth Schedule containing the details in
,Defection Law)    this regard.
,Fifty-Third       Made special provisions in respect of
,Amendment         Mizoram and fixed the strength of its
,"Act, 1986         Assembly at a minimum of 40 members."
,Fifty-Fourth      Increased the salaries of the Supreme
,Amendment         Court and high court judges and enabled
,"Act, 1986         the Parliament to change them in future"
,by an ordinary law.
,Fifty-Fifth       Made special provisions in respect of
,Amendment         Arunachal Pradesh and fixed the strength
,"Act, 1986         of its Assembly at a minimum of 30"
,members.
,Amendment        Amended Provisions of the
,Number and       Constitution
,Year
,Fifty-Sixth      Fixed the strength of the Goa Legislative
,Amendment        Assembly at a minimum of 30 members.
,"Act, 1987"
,Fifty-Seventh    Reserved seats for the STs in the
,"Amendment Act,   legislative assemblies of the states of"
,"1987             Arunachal Pradesh, Meghalaya, Mizoram"
,and Nagaland.
,Fifty-Eighth     Provided for an authoritative text of the
,Amendment        Constitution in hindi language and gave
,"Act, 1987        the same legal sanctity to the Hindi"
,version of the Constitution.
,Fifty-Ninth       1. Facilitated the extension of
,Amendment            President’s Rule in Punjab up to
,"Act, 1988            three years."
,2. Provided for the declaration of
,national emergency in Punjab on the
,ground of internal disturbance.
,Increased the ceiling of taxes on
,Sixtieth
,"professions, trades, callings and"
,"Amendment Act,"
,employments from ‘250 per annum to
,1988
,"‘2,500 per annum."
,Sixty-First      Reduced the voting age from 21 years to
,Amendment        18 years for the Lok Sabha and state
,"Act, 1989        legislative assembly elections."
,Extended the reservation of seats for the
,SCs and STs and special representation
,Sixty-Second
,for the Anglo-Indians in the Lok Sabha
,"Amendment Act,"
,and the state legislative assemblies for
,1989
,"the further period of ten years (i.e., up to"
,2000).
,Amendment        Amended Provisions of the
,Number and       Constitution
,Year
,Repealed the changes introduced by the
,Sixty-Third      59th Amendment Act of 1988 in relation
,"Amendment        to Punjab. In other words, Punjab was"
,"Act, 1989        brought at par with the other states in"
,respect of emergency provisions.
,Sixty-Fourth     Facilitated the extension of the
,Amendment        President’s rule in Punjab upto a total
,"Act, 1990        period of three years and six months."
,Sixty-Fifth      Provided for the establishment of a multi-
,Amendment        member National Commission for SCs
,"Act, 1990        and STs in the place of a Special Officer"
,for SCs and STs.
,Sixty-Sixth      Included 55 more land reforms Acts of
,Amendment        various states in the Ninth Schedule.
,"Act, 1990"
,Sixty-Seventh    Facilitated the extension of the
,"Amendment Act,   President’s rule in Punjab up to a total"
,1990             period of four years.
,Sixty-Eighth     Facilitated the extension of the
,Amendment        President’s rule in Punjab up to a total
,"Act, 1991        period of five years."
,Accorded a special status to the Union
,Territory of Delhi by designing it as the
,Sixty-Ninth      National Capital Territory of Delhi. The
,Amendment        amendment also provided for the
,"Act, 1991        creation of a 70-member legislative"
,assembly and a 7-member council of
,ministers for Delhi.
,Amendment        Amended Provisions of the
,Number and       Constitution
,Year
,Provided for the inclusion of the
,members of the Legislative Assemblies
,Seventieth
,of National Capital Territory of Delhi and
,Amendment
,the Union Territory of Puducherry in the
,"Act, 1992"
,electoral college for the election of the
,president.
,"Seventy-First    Included konkani, manipuri and nepali"
,"Amendment Act,   languages in the Eight Schedule. With"
,"1992             this, the total number of scheduled"
,languages increased to 18.
,Seventy-Second   Provided for reservation of seats for the
,"Amendment Act,   STs in the Legislative Assembly of"
,1992             Tripura.
,Seventy-Third    Granted constitutional status and
,"Amendment Act,   protection to the panchayati raj"
,"1992             institutions. For this purpose, the"
,Amendment has added a new Part-IX
,entitled as “the panchayats” and a new
,Eleventh Schedule containing 29
,functional items of the panchayats.
,Seventy-Fourth   Granted constitutional status and
,"Amendment Act,   protection to the urban local bodies. For"
,"1992             this purpose, the Amendment has added"
,a new Part IX-A entitled as “the
,municipalities” and a new Twelfth
,Schedule containing 18 functional items
,of the municipalities.
,Seventy-Fifth    Provided for the establishment of rent
,"Amendment Act,   tribunals for the adjudication of disputes"
,"1994             with respect to rent, its regulation and"
,control and tenancy issues including the
,"rights, title and interest of landlords and"
,tenants.
,Amendment         Amended Provisions of the
,Number and        Constitution
,Year
,Seventy-Sixth     Included the Tamil Nadu Reservation Act
,"Amendment Act,    of 1994 (which provides for 69 per cent"
,1994              reservation of seats in educational
,institutions and posts in state services) in
,the Ninth Schedule to protect it from
,"judicial review. In 1992, the Supreme"
,Court ruled that the total reservation
,should not exceed 50 per cent.
,Seventy-Seventh   Provided for reservation in promotions in
,"Amendment Act,    government jobs for SCs and STs. This"
,1995              amendment nullified the Supreme Court
,ruling with regard to reservation in
,promotions.
,Seventy-Eighth    Included 27 more land reforms Acts of
,"Amendment Act,    various states in the Ninth Schedule."
,"1995              With this, the total number of Acts in the"
,"Schedule increased to 282. But, the last"
,entry is numbered 284.
,Seventy-Ninth     Extended the reservation of seats for the
,"Amendment Act,    SCs and STs and special representation"
,1999              for the Anglo-Indians in the Lok Sabha
,and the state legislative assemblies for a
,"further period of ten years (i.e., up to"
,2010).
,Eightieth         Provided for an “alternative scheme of
,Amendment         devolution” of revenue between the
,"Act, 2000         Centre and states. This was enacted on"
,the basis of the recommendations of the
,Tenth Finance Commission which has
,recommended that out of the total
,income obtained from Central taxes and
,"duties, twenty-nine per cent should be"
,distributed among the states.
,Amendment        Amended Provisions of the
,Number and       Constitution
,Year
,Eighty-First     Empowered the state to consider the
,Amendment        unfilled reserved vacancies of a year as a
,"Act, 2000        separate class of vacancies to be filled"
,up in any succeeding year or years. Such
,class of vacancies are not to be
,combined with the vacancies of the year
,in which they are being filled up to
,determine the ceiling of 50 per cent
,reservation on total number of vacancies
,"of that year. In brief, this amendment"
,ended the 50 per cent ceiling on
,reservation in backlog vacancies.
,Eighty-Second    Provided for making of any provision in
,"Amendment Act,   favour of the SCs and STs for relaxation"
,2000             in qualifying marks in any examination or
,"lowering the standards of evaluation, for"
,reservation in matters of promotion to the
,public services of the Centre and the
,states.
,Eighty-Third     Provided that no reservation in
,Amendment        panchayats need be made for SCs in
,"Act, 2000        Arunachal Pradesh. The total population"
,of the state is tribal and there are no
,SCs.
,Amendment        Amended Provisions of the
,Number and       Constitution
,Year
,Eighty-Fourth    Extended the ban on readjustment of
,"Amendment Act,   seats in the Lok Sabha and the state"
,2001             legislative assemblies for another 25
,"years (i.e., up to 2026) with the same"
,objective of encouraging population
,"limiting measures. In other words, the"
,number of seats in the Lok Sabha and
,the assemblies are to remain same till
,2026. It also provided for the
,readjustment and rationalisation of
,territorial constituencies in the states on
,the basis of the population figures of
,1991 census.
,Eighty-Fifth     Provided for “consequential seniority” in
,Amendment        the case of promotion by virtue of rule of
,"Act, 2001        reservation for the government servants"
,belonging to the SCs and STs with
,retrospective effect from June 1995.
,Amendment        Amended Provisions of the
,Number and       Constitution
,Year
,Eighty-Sixth      1. Made elementary education a
,Amendment            fundamental right. The newly-added
,"Act, 2002            Article 21-A declares that “the State"
,shall provide free and compulsory
,education to all children of the age of
,six to fourteen years in such manner
,as the State may determine”.
,2. Changed the subject matter of Article
,45 in Directive Principles. It now
,reads—“The State shall endeavour to
,provide early childhood care and
,education for all children until they
,complete the age of six years”.
,3. Added a new fundamental duty
,under Article 51-A which reads—“It
,shall be the duty of every citizen of
,India who is a parent or guardian to
,provide opportunities for education to
,his child or ward between the age of
,six and fourteen years”.
,Eighty-Seventh   Provided for the readjustment and
,"Amendment Act,   rationalisation of territorial constituencies"
,2003             in the states on the basis of the
,population figures of 2001 census and
,not 1991 census as provided earlier by
,the 84th Amendment Act of 2001.
,Eighty-Eighth    Made a provision for service tax. Taxes
,"Amendment Act,   on services are levied by the Centre. But,"
,2003             their proceeds are collected as well as
,appropriated by both the Centre and the
,states in accordance with the principles
,formulated by parliament.
,Amendment      Amended Provisions of the
,Number and     Constitution
,Year
,Eighty-Ninth   Bifurcated the erstwhile combined
,Amendment      National Commission for Scheduled
,"Act, 2003      Castes and Scheduled Tribes into two"
,"separate bodies, namely, National"
,Commission for Scheduled Castes and
,National Commission for Scheduled
,Tribes. Both the Commissions consist of
,"a Chairperson, a ViceChairperson and"
,three other members. They are
,appointed by the President.
,Ninetieth      Provided for maintaining the erstwhile
,Amendment      representation of the Scheduled Tribes
,"Act, 2003      and nonScheduled Tribes in the Assam"
,legislative assembly from the Bodoland
,Territorial Areas District.
,Ninety-First   Made the following provisions to limit the
,"Amendment      size of Council of Ministers, to debar"
,"Act, 2003      defectors from holding public offices, and"
,to strengthen the anti-defection law:
,"1. The total number of ministers,"
,"including the Prime Minister, in the"
,Central Council of Ministers shall not
,exceed 15% of the total strength of
,the Lok Sabha.
,2. A member of either house of
,Parliament belonging to any political
,party who is disqualified on the
,ground of defection shall also be
,disqualified to be appointed as a
,minister.
,"3. The total number of ministers,"
,"including the Chief Minister, in the"
,Council of Ministers in a state shall
,Amendment    Amended Provisions of the
,Number and   Constitution
,Year
,not exceed 15% of the total strength
,of the legislative Assembly of that
,"state. But, the number of ministers,"
,"including the Chief Minister, in a state"
,shall not be less than 12.
,4. A member of either House of a state
,legislature belonging to any political
,party who is disqualified on the
,ground of defection shall also be
,disqualified to be appointed as a
,minister.
,5. A member of either House of
,Parliament or either House of a State
,Legislature belonging to any political
,party who is disqualified on the
,ground of defection shall also be
,disqualified to hold any remunerative
,political post. The expression
,“remunerative political post” means
,(i) any office under the central
,government or a state government
,where the salary or remuneration for
,such office is paid out of the public
,revenue of the concerned
,government; or (ii) any office under a
,"body, whether incorporated or not,"
,which is wholly or partially owned by
,the central government or a state
,government and the salary or
,remuneration for such office is paid
,"by such body, except where such"
,salary or remuneration paid is
,compensatory in nature.
,Amendment        Amended Provisions of the
,Number and       Constitution
,Year
,6. The provision of the Tenth Schedule
,(anti-defection law) pertaining to
,exemption from disqualification in
,case of split by one-third members of
,legislature party has been deleted. It
,means that the defectors have no
,more protection on grounds of splits.
,Ninety-Second    Included four more languages in the
,"Amendment Act,   Eighth Schedule. They are Bodo, Dogri"
,"2003             (Dongri),"
,"Mathilli (Maithili) and Santhali. With this,"
,the total number of constitutionally
,recognised languages increased to 22.
,Ninety-Third     Empowered the state to make special
,"Amendment Act,   provisions for the socially and"
,2005             educationally backward classes or the
,Scheduled Castes or the Scheduled
,Tribes in educational institutions
,including private educational institutions
,"(whether aided or unaided by the state),"
,except the minority educational
,institutions.
,Ninety-Fourth    Freed Bihar from the obligation of having
,"Amendment Act,   a tribal welfare minister and extended the"
,2006             same provision to Jharkhand and
,Chhattisgarh. This provision will now be
,applicable to the two newly formed states
,"and Madhya Pradesh and Odisha, where"
,it has already been in force.
,Amendment        Amended Provisions of the
,Number and       Constitution
,Year
,Ninety-Fifth     Extended the reservation of seats for the
,Amendment        SCs and STs and special representation
,"Act, 2009        for the Anglo-Indians in the Lok Sabha"
,and the state legislative assemblies for a
,"further period of ten years i.e., upto 2020."
,Ninety-Sixth     Substituted “Odia” for “Oriya”.
,"Amendment        Consequently, the “Oriya” language in"
,"Act, 2011        the Eighth Schedule shall be pronounced"
,as “Odia”.
,Ninety-Seventh   Gave a constitutional status and
,"Amendment Act,   protection to co-operative societies. In"
,"2011             this context, it made the following three"
,changes in the constitution:
,1. It made the right to form co-operative
,societies a fundamental right.
,2. It included a new Directive Principle
,of State Policy on promotion of co-
,operative societies.
,3. It added a new Part IX-B in the
,constitution which is entitled as “The
,Co-operative Societies”.
,Ninety-Eighth    Provided for special provisions for the
,"Amendment Act,   Hyderabad- Karnataka region of the"
,2012             State of Karnataka. The special
,provisions aim to establish an institutional
,mechanism for equitable allocation of
,funds to meet the development needs
,"over the region, as well as to enhance"
,human resources and promote
,employment from the region by providing
,for local cadres in service and
,reservation in educational and vocational
,training institutions.
,Amendment         Amended Provisions of the
,Number and        Constitution
,Year
,Ninety-Ninth      Replaced the collegium system of
,"Amendment Act,    appointing judges to the Supreme Court"
,2014              and High Courts with a new body called
,the National Judicial Appointments
,"Commission (NJAC). However, in 2015,"
,the Supreme Court has declared this
,amendment act as unconstitutional and
,"void. Consequently, the earlier collegium"
,system became operative again.
,One Hundredth     Gave effect to the acquiring of certain
,"Amendment Act,    territories by India and transfer of certain"
,2015              other territories to Bangladesh (through
,exchange of enclaves and retention of
,adverse possessions) in pursuance of
,the Land Boundary Agreement of 1974
,and its Protocol of 2011. For this
,"purpose, this amendment act amended"
,the provisions relating to the territories of
,"four states (Assam, West Bengal,"
,Meghalaya and Tripura) in the First
,Schedule of the Constitution.
,One Hundred and   Paved the way for the introduction of the
,First             goods and services tax (GST) regime in
,"Amendment Act,    the country. The GST shall replace a"
,2016              number of indirect taxes being levied by
,the Union and the State Government. It is
,intented to remove cascading effect of
,taxes and provide for a common national
,market for goods and services. The
,proposed Central and State GST will be
,levied on all transactions involving supply
,"of goods and services, except those"
,which are kept out of the purview of the
,Amendment    Amended Provisions of the
,Number and   Constitution
,Year
,"GST. Accordingly, the amendment made"
,the following provisions:
,1. Conferred concurrent taxing powers
,upon the Parliament and the State
,Legislatures to makes laws for
,levying GST on every transaction of
,supply of goods or services or both.
,2. Dispensed the concept of “declared
,goods of special importance” under
,the constitution.
,3. Provided for the levy of Integrated
,GST on inter-state transactions of
,goods and services.
,4. Provided for the establishment of a
,Goods and Services Tax Council by a
,presidential order.
,5. Made the provision of compensation
,to the states for loss of revenue
,arising on account of introduction of
,GST for a period of five years.
,6. Substituted and ommitted certain
,entries in the Union and State Lists of
,the Seventh Schedule.
,Amendment         Amended Provisions of the
,Number and        Constitution
,Year
,One Hundred and   1. Conferred a constitutional status on
,Second               the National Commission for
,"Amendment Act,       Backward Classes which was set-up"
,2018                 in 1993 by an Act of the Parliament.
,2. Relieved the National Commission
,for Scheduled Castes from its
,functions with regard to the backward
,classes.
,3. Empowered the President to specify
,the socially and educationally
,backward classes in relation to a
,state or union territory.
,One Hundred and   1. Empowered the state to make any
,Third                special provision for the
,"Amendment Act,       advancement of any economically"
,2019                 weaker sections of citizens.
,2. Allowed the state to make a provision
,for the reservation of upto 10% of
,seats for such sections in admission
,to educational institutions including
,"private educational institutions,"
,whether aided or unaided by the
,"state, expect the minority educational"
,institutions. This reservation of upto
,10% would be in addition to the
,existing reservations.
,3. Permitted the state to make a
,provision for the reservation of upto
,10% of appointments or posts in
,favour of such sections. This
,reservation of upto 10 % would be in
,addition to the existing reservation.
,"Appendix V Presidents, Vice-"
,"Presidents, Prime Ministers, etc."
,A. PRESIDENTS OF INDIA
,Name                             Tenure
,1.   Dr. Rajendra Prasad              1950 - 1962
,2.   Dr. Sarvepalli Radhakrishnan     1962 - 1967
,3.   Dr. Zakir Husain                 1967 - 1969
,(Died)
,4.   Varahagiri Venkatagiri           1969 - 1969
,(Acting)
,5.   Justice Mohammad Hidayatullah    1969 - 1969
,(Acting)
,6.   Varahagiri Venkatagiri           1969 - 1974
,7.   Fakhruddin Ali Ahmed             1974 - 1977
,(Died)
,8.   B.D. Jatti                       1977 - 1977
,(Acting)
,9.   Neelam Sanjiva Reddy             1977 - 1982
,10.   Giani Zail Singh                 1982 - 1987
,11.   R. Venkataraman                  1987 - 1992
,12.   Dr. Shanker Dayal Sharma         1992 - 1997
,13.   K.R. Narayanan                   1997 - 2002
,14.   Dr. A.P.J. Abdul Kalam           2002 - 2007
,15.   Smt. Pratibha Patil              2007 - 2012
,16.   Pranab Mukherjee                 2012 - 2017
,17.   Ram Nath Kovind                  2017 - till date
,               B. VICE-PRESIDENTS OF INDIA
,Name                             Tenure
,1.        Dr. Sarvepalli Radhakrishnan     1952 - 1962
,2.        Dr. Zakir Husain                 1962 - 1967
,3.       Varahagiri Venkatagiri           1967 - 1969
,4.       Gopal Swarup Pathak              1969 - 1974
,5.       B.D. Jatti                       1974 - 1979
,6.        Justice Mohammad Hidayatullah    1979 - 1984
,7.       R. Venkataraman                  1984 - 1987
,8.       Dr. Shanker Dayal Sharma         1987 - 1992
,9.        K.R. Narayanan                   1992 - 1997
,10.       Krishan Kant                     1997 - 2002
,(Died)
,11.       Bhairon Singh Shekhawat          2002 - 2007
,12.       Mohammed Hamid Ansari            2007 - 2012
,13.       Mohammed Hamid Ansari            2012 - 2017
,14.       Venkaiah Naidu                   2017 - till date
,
,C. PRIME MINISTERS OF INDIA
,Name                       Tenure
,1.   Jawaharlal Nehru           1947 - 1964 (Died)
,2.   Gulzari Lal Nanda          1964 - 1964 (Acting)
,3.   Lal Bahadur Shastri        1964 - 1966 (Died)
,4.   Gulzari Lal Nanda          1966 - 1966 (Acting)
,5.   Indira Gandhi              1966 - 1977
,6.   Morarji Desai              1977 - 1979
,7.   Charan Singh               1979 - 1980
,           Name                       Tenure
,8.   Indira Gandhi              1980 - 1984 (Died)
,9.   Rajiv Gandhi               1984 - 1989
,10.   Vishwanath Pratap Singh    1989 - 1990
,11.   Chandra Shekhar            1990 - 1991
,12.   P.V. Narasimha Rao         1991 - 1996
,13.   Atal Bihari Vajpayee       1996 - 1996
,(For 16 Days)
,14.   H.D. Deve Gowda            1996 - 1997
,15.   I.K. Gujral                1997 - 1998
,16.   Atal Bihari Vajpayee       1998 - 1999
,17.   Atal Bihari Vajpayee       1999 - 2004
,18.   Dr. Manmohan Singh         2004 - 2009
,19.   Dr. Manmohan Singh         2009 - 2014
,20.   Narendra Modi              2014 - 2019
,21.   Narendra Modi              2019 - till date
,
,D. DEPUTY PRIME MINISTERS
,Name                                       Tenure
,1.     Sardar Vallabhbhai Patel                   1947 - 1950
,2.     Morarji Desai                              1967 - 1969
,3.     Charan Singh and Jagjivan Ram (jointly)    1977 - 1979
,4.     Y.B. Chavan                                1979 - 1980
,5.     Devi Lal                                   1989 - 1990
,6.     Devi Lal                                   1990 - 1991
,7.     L.K. Advani                                2002 - 2004
,            E. SPEAKERS OF THE LOK SABHA
,Name                          Tenure
,1.    Ganesh Vasudev                1952 - 1956 (Died)
,Mavalankar
,2.    M. Ananthasayanam             1956 - 1962
,Ayyangar
,3.    Hukam Singh                   1962 - 1967
,4.    Neelam Sanjiva Reddy          1967 - 1969 (Resigned)
,5.    Gurdial Singh Dhillon         1969 - 1975 (Resigned)
,6.    Bali Ram Bhagat               1976 - 1977
,7.    Neelam Sanjiva Reddy          1977 - 1977 (Resigned)
,8.    K.S. Hegde                    1977 - 1980
,9.    Bal Ram Jakhar                1980 - 1989
,10.   Rabi Ray                      1989 - 1991
,11.   Shivraj V. Patil              1991 - 1996
,12.   P.A. Sangma                   1996 - 1998
,13.   G.M.C. Balayogi               1998 - 2002 (Died)
,14.   Manohar Gajanan Joshi         2002 - 2004
,15.   Somnath Chatterjee            2004 - 2009
,16.   Ms. Meira Kumar               2009 - 2014
,17.   Ms. Sumitra Mahajan           2014 - 2019
,18.   Om Birla                      2019 - till date
,
,F. CHIEF JUSTICES OF INDIA
,Name                      Tenure
,1.     Harilal J. Kania          1950 - 1951
,2.     M. Patanjali Sastri       1951 - 1954
,      Name                   Tenure
,3.   M.C. Mahajan           1954 - 1954
,4.   B.K. Mukherjea         1954 - 1956
,5.   S.R. Das               1956 - 1959
,6.   B.P. Sinha             1959 - 1964
,7.   P.B. Gajendragadkar    1964 - 1966
,8.   A.K. Sarkar            1966 - 1966
,9.   K. Subba Rao           1966 - 1967
,10.   K.N. Wanchoo           1967 - 1968
,11.   M. Hidayatullah        1968 - 1970
,12.   J.C. Shah              1970 - 1971
,13.   S.M. Sikri             1971 - 1973
,14.   A.N. Ray               1973 - 1977
,15.   M.H. Beg               1977 - 1978
,16.   Y.V. Chandrachud       1978 - 1985
,17.   P.N. Bhagwati          1985 - 1986
,18.   R.S. Pathak            1986 - 1989
,19.   E.S. Venkataramaiah    1989 - 1989
,20.   S. Mukherjee           1989 - 1990
,21.   Ranganath Mishra       1990 - 1991
,22.   K.N. Singh             1991 - 1991
,23.   M.H. Kania             1991 - 1992
,24.   L.M. Sharma            1992 - 1993
,25.   M.N. Venkatachalaiah   1993 - 1994
,26.   A.M. Ahmadi            1994 - 1997
,27.   J.S. Verma             1997 - 1998
,         Name                Tenure
,28.    M.M. Punchhi        1998 - 1998
,29.    A.S. Anand          1998 - 2001
,30.    S.P. Bharucha       2001 - 2002
,31.    B.N. Kirpal         2002 - 2002
,32.    G.B. Pattanaik      2002 - 2002
,33.    V.N. Khare          2002 - 2004
,34.    S. Rajendra Babu    2004 - 2004
,35.    R.C. Lahoti         2004 - 2005
,36.    Y.K. Sabharwal      2005 - 2007
,37.    K.G. Balakrishnan   2007 - 2010
,38.    S.H. Kapadia        2010 - 2012
,39.    Altamas Kabir       2012 - 2013
,40.    P. Sathasivam       2013 - 2014
,41.    R.M. Lodha          2014 - 2014
,42.    H.L. Dattu          2014 - 2015
,43.    T.S. Thakur         2015 - 2017
,44.    J.S. Khehar         2017 - 2017
,45.    Dipak Misra         2017 - 2018
,46.    Ranjan Gogoi        2018 - 2019
,47.    S.A. Bobde          2019 - till date
,
,G. CHIEF ELECTION COMMISSIONERS OF INDIA
,Name                Tenure
,1.   Sukumar Sen         1950 - 1958
,2.   K.V.K. Sundaram     1958 - 1967
,           Name                  Tenure
,3.   S.P. Sen Verma        1967 - 1972
,4.   Dr. Nagendra Singh    1972 - 1973
,5.   T. Swaminathan        1973 - 1977
,6.   S.L. Shakdhar         1977 - 1982
,7.   R.K. Trivedi          1982 - 1985
,8.   R.V.S. Peri Sastri    1986 - 1990
,9.   Smt. V.S. Rama Devi   1990 - 1990
,10.   T.N. Seshan           1990 - 1996
,11.   M.S. Gill             1996 - 2001
,12.   J.M. Lyngdoh          2001 - 2004
,13.   T.S. Krishna Murthy   2004 - 2005
,14.   B.B. Tandon           2005 - 2006
,15.   N. Gopalaswamy        2006 - 2009
,16.   Naveen Chawla         2009 - 2010
,17.   S.Y. Quraishi         2010 - 2012
,18.   V.S. Sampath          2012 - 2015
,19.   H.S. Brahma           2015 - 2015
,20.   Nasim Zaidi           2015 - 2017
,21.   A.K. Jyoti            2017 - 2018
,22.   Om Prakash Rawat      2018 - 2018
,23.   Sunil Arora           2018 - till date
,
,
,H. CHAIRMEN OF THE UPSC
,Name                            Tenure
,1.    Sir Ross Barker                 1926 - 1932
,      Name                             Tenure
,2.   Sir David Petrie                 1932 - 1936
,3.   Sir Eyre Gorden                  1937 - 1942
,4.   Sir F.W. Robertson               1942 - 1947
,5.   H.K. Kripalani                   1947 - 1949
,6.   R.N. Banerjee                    1949 - 1955
,7.   N. Govindarajan                  1955 - 1955
,8.   V.S. Hejmadi                     1955 - 1961
,9.   B.N. Jha                         1961 - 1967
,10.   K.R. Damle                       1967 - 1971
,11.   R.C.S. Sarkar                    1971 - 1973
,12.   Dr. A.R. Kidwai                  1973 - 1979
,13.   Dr. M.L. Shahare                 1979 - 1985
,14.   H.K.L. Capoor                    1985 - 1990
,15.   J.P. Gupta                       1990 - 1992
,16.   Smt. R.M. Bathew (Kharbuli)      1992 - 1996
,17.   S.J.S. Chhatwal                  1996 - 1996
,18.   J.M. Qureshi                     1996 - 1998
,19.   Lt. Gen. (Retd.) Surinder Nath   1998 - 2002
,20.   P.C. Hota                        2002 - 2003
,21.   Mata Prasad                      2003 - 2005
,22.   Dr. S.R. Hashim                  2005 - 2006
,23.   Gurbachan Jagat                  2006 - 2007
,24.   Subir Dutta                      2007 - 2008
,25.   D.P. Agrawal                     2008 - 2014
,26.   Smt. Rajni Razdan                2014 - 2014
,        Name                           Tenure
,27.    Deepak Gupta                   2014 - 2016
,28.    Alka Sirohi                    2016 - 2017
,29.    David Syiemlieh                2017 - 2018
,30.    Vinay Mittal                   2018 - 2018
,31.    Arvind Saxena                  2018 - till date
,
,I. COMPTROLLER AND AUDITORGENERALS OF INDIA
,Name                 Tenure
,1.   V. Narhari Rao       1948 - 1954
,2.   A.K. Chanda          1954 - 1960
,3.   SH. A.K. Roy         1960 - 1966
,4.   S. Ranganathan       1966 - 1972
,5.   A. Baksi             1972 - 1978
,6.   Gian Prakash         1978 - 1984
,7.   T.N. Chaturvedi      1984 - 1990
,8.   C.G. Somiah          1990 - 1996
,9.   V.K. Shunglu         1996 - 2002
,10.   V.N. Kaul            2002 - 2008
,11.   Vinod Rai            2008 - 2013
,12.   Shashi Kant Sharma   2013 - 2017
,13.   Rajiv Mehrishi       2017 - till date
,
,J. ATTORNEY - GENERALS OF INDIA
,Name                 Tenure
,1.    M.C. Setalvad        1950 - 1963
,      Name                  Tenure
,2.   C.K. Daphtary         1963 - 1963
,3.   Niren De              1968 - 1977
,4.   S.V. Gupte            1977 - 1979
,5.   L.N. Sinha            1979 - 1983
,6.   K. Parasaran          1983 - 1989
,7.   Soli J. Sorabjee      1989 - 1990
,8.   G. Ramaswamy          1990 - 1992
,9.   Milon K. Banerjee     1992 - 1996
,10.   Ashok K. Desai        1996 - 1998
,11.   Soli J. Sorabjee      1998 - 2004
,12.   Milon K. Banerjee     2004 - 2009
,13.   Goolam E. Vahanvati   2009 - 2014
,14.   Mukul Rohatgi         2014 - 2017
,15.   K.K. Venugopal        2017 - till date
,Appendix VI Chairpersons of the
,National Commissions
,A. NATIONAI HUMAN RIGHTS
,COMMISSION
,
,Serial   Name                        Tenure
,Number
,1.      Justice Ranganath Misra     1993 -
,1996
,2.      Justice M.N.                1996 -
,Venkatachaliah              1999
,3.      Justice J.S. Verma          1999 -
,2003
,4.      Justice A.S. Anand          2003 -
,2006
,5.      Justice Shivaraj V. Patil   2006 -
,2007
,6.      Justice S. Rajendra Babu    2007 -
,2009
,7.      Justice Govind Prasad       2009 -
,Mathur                      2010
,8.      Justice K.G.                2010 -
,Balakrishnan                2015
,9.      Justice Cyrial Joseph       2015 -
,2016
,10.     Justice H.L. Datt           2016 - till
,date
,B. NATIONAI COMMISSION FOR WOMEN
,
,Serial   Name                  Tenure
,Number
,1.      Jayanti Patnaik       1992 - 1995
,2.      Dr. V. Mohini Giri    1995 - 1998
,3.      Vibha Parthasarathi   1999 - 2002
,4.      Dr. Poornima Advani   2002 - 2005
,5.      Dr. Girija Vyas       2005 - 2008
,6.      Dr. Girija Vyas       2008 - 2011
,7.      Mamta Sharma          2011 - 2014
,8.      Lalitha               2014 - 2017
,Kumaramangalam
,9.      Rekha Sharma          2018 - till
,date
,C. NATIONAI COMMISSION FOR
,PROTECTION OF CHILD RIGHTS
,
,Serial   Name                  Tenure
,Number
,1.      Dr. Shantha Sinha     2007 - 2010
,2.      Dr. Shantha Sinha     2010 - 2013
,3.      Kushal Singh          2013 - 2014
,4.      Stuti Narain Kacker   2015 - 2018
,5.      Priyank Kanoongo      2018 - till date
,D. NATIONAI COMMISSION FOR
,BACKWARD CLASSES
,
,Serial   Name                      Tenure
,Number
,1.      Justice R.N. Prasad       1993 - 1996
,2.      Justice Shyam Sunder      1997 - 2000
,3.      Justice B.L. Yadav        2000 - 2002
,4.      Justice Ram Surat Singh   2002 - 2005
,5.      Justice S. Ratnavel       2006 - 2009
,Pandian
,6.      Justice M.N. Rao          2010 - 2013
,7.      Justice V. Eswaraiah      2013 - 2016
,8.      Dr. Bhagwan Lal Sahni     2016 - till
,date
,E. NATIONAI COMMISSION FOR
,MINORITIES
,
,Serial   Name                      Tenure
,Number
,1.      Justice Mohammad Sardar   1993 -
,Ali Khan                  1996
,2.      Prof. Tahir Mohammad      1996 -
,1999
,3.      Justice Mohammed          2000 -
,Shamim                    2003
,4.      Tarlochan Singh           2003 -
,2006
,5.      Mohammad Hamid Ansari     2006 -
,2007
,6.      Mohammad Shafi Qureshi    2007 -
,2010
,7.      Wajahat Habibullah        2011 -
,2014
,8.      Naseem Ahmad              2014 -
,2017
,9.      Syed Ghayorul Hasan       2017 - till
,Rizvi                     date
,F. ERSTWHILE NATIONAL COMMISSION
,FOR SCS AND STS (COMBINED)
,
,Serial   Name                   Tenure
,Number
,1.      S.H. Ramdhan           1992 - 1995
,2.      H. Hanumanthappa       1995 - 1998
,3.      Dileep Singh Bhuria    1998 - 2002
,4.      Vijay Sonkar Shastri   2002 - 2004
,G. NATIONAI COMMISSION FOR SCS
,
,Serial   Name                   Tenure
,Number
,1.      Suraj Bhan             2004 - 2006
,2.      Buta Singh             2007 - 2010
,3.      P.L. Punia             2010 - 2013
,4.      P.L. Punia             2013 - 2016
,5.      Ram Shankar Katheria   2017 - till date
,H. NATIONAI COMMISSION FOR STS
,
,Serial   Name              Tenure
,Number
,1.      Kunwar Singh      2004 - 2007
,2.      Urmila Singh      2007 - 2010
,3.      Rameshwar Oraon   2010 - 2013
,4.      Rameshwar Oraon   2013 - 2016
,5.      Nand Kumar Sai    2017 - till date
,Appendix VII UPSC Questions on Indian
,Polity (General Studies— Prelims 2010–
,2019)
,2010 TEST PAPER
,"1. With reference to the Constitution of India, consider the"
,following:
,1. Fundamental Rights
,2. Fundamental Duties
,3. Directive Principles of State Policy
,Which of the above provisions of the Constitution of India
,is/are fulfilled by the National Social Assistance Programme
,launched by the Government of India?
,(a) 1 only
,(b) 3 only
,(c) 1 and 3 only
,"(d) 1, 2 and 3"
,2. Consider the following statements:
,The Supreme Court of India tenders advice to the President of
,India on matters of law or fact
,1. on its own initiative (on any matter of larger public
,interest).
,2. if he seeks such an advice.
,3. only if the matters relate to the Fundamental Rights of the
,citizens.
,Which of the statements given above is/ are correct?
,(a) 1 only
,(b) 2 only
,(c) 3 only
,(d) 1 and 2
,"3. With reference to Lok Adalats, which of the following"
,statements is correct?
,(a) Lok Adalats have the jurisdiction to settle the matters at
,pre-litigative stage and not those matters pending before
,any court
,(b) Lok Adalats can deal with matters which are civil and not
,criminal in nature
,(c) Every Lok Adalat consists of either serving or retired
,judicial officers only and not any other person
,     (d) None of the statements given above is correct
,4.   The “Instrument of Instructions” contained in the Government
,of India Act 1935 have been incorporated in the Constitution
,of India in the year 1950 as
,(a) Fundamental Rights
,(b) Directive Principles of State Policy
,(c) Extent of executive power of State
,(d) Conduct of business of the Government of India
,5.   Who of the following shall cause every recommendation made
,by the Finance Commission to be laid before each House of
,Parliament?
,(a) The President of India
,(b) The Speaker of Lok Sabha
,(c) The Prime Minister of India
,(d) The Union Finance Minister
,6.   Which one of the following is responsible for the preparation
,and presentation of Union Budget to the Parliament?
,(a) Department of Revenue
,(b) Department of Economic Affairs
,(c) Department of Financial Services
,(d) Department of Expenditure
,7.   With reference to the National Rehabilitation and
,"Resettlement Policy, 2007, consider the following statements:"
,1. This policy is applicable only to the persons affected by
,the acquisition of land for projects and not to the
,involuntary displacement due to any other reason.
,2. This policy has been formulated by the Ministry of Social
,Justice and Empowerment.
,Which of the statements given above is/ are correct?
,(a) 1 only
,(b) 2 only
,(c) Both 1 and 2
,(d) Neither 1 nor 2
,8.   With reference to the Consumer Disputes Redressal at district
,"level in India, which one of the following statements is not"
,correct?
,(a) A State Government can establish more than one District
,Forum in a district if it deems fit
,    (b) One of the members of the District Forum shall be a
,woman.
,(c) The District Forum entertains the complaints where the
,value of goods or services does not exceed rupees fifty
,lakhs
,(d) A complaint in relation to any goods sold or any service
,provided may be filed with a District Forum by the State
,Government as a representative of the interests of the
,consumers in general
,9. Which one of the following authorities makes recommendation
,to the Governor of a State as to the principles for determining
,the taxes and duties which may be appropriated by the
,Panchayats in that particular State?
,(a) District Planning Committees
,(b) State Finance Commission
,(c) Finance Ministry of that State
,(d) Panchayati Raj Ministry of that State
,10. Consider the following statements:
,"In India, taxes on transactions in Stock Exchanges and"
,Futures Markets are
,1. levied by the Union
,2. collected by the States
,Which of the statements given above is/ are correct?
,(a) 1 only
,(b) 2 only
,(c) Both 1 and 2
,(d) Neither 1 nor 2
,2011 TEST PAPER
,
,"1. The Constitution (Seventy-Third Amendment) Act, 1992,"
,which aims at promoting the Panchayati Raj Institutions in
,"the country, provides for which of the following?"
,1. Constitution of District Planning Committees.
,2. State Election Commissions to conduct all panchayat
,elections.
,3. Establishment of State Finance Commissions.
,Select the correct answer using the codes given below:
,(a) 1 only
,(b) 1 and 2 only
,(c) 2 and 3 only
,"(d) 1, 2 and 3"
,"2. In India, if a religious sect/community is given the status of a"
,"national minority, what special advantages it is entitled to?"
,1. It can establish and administer exclusive educational
,institutions.
,2. The President of India automatically nominates a
,representative of the community to Lok Sabha.
,3. It can derive benefits from the Prime Minister’s 15-Point
,Programme.
,Which of the statements given above is/ are correct?
,(a) 1 only
,(b) 2 and 3 only
,(c) 1 and 3 only
,"(d) 1, 2 and 3"
,3. India is home to lakhs of persons with disabilities. What are
,the benefits available to them under the law?
,1. Free schooling till the age of 18 years in government-run
,schools.
,2. Preferential allotment of land for setting up business.
,3. Ramps in public buildings.
,Which of the statements given above is/ are correct?
,(a) 1 only
,(b) 2 and 3 only
,(c) 1 and 3 only
,"     (d) 1, 2 and 3"
,4.   The authorization for the withdrawal of funds from the
,Consolidated Fund of India must come from
,(a) The President of India
,(b) The Parliament of India
,(c) The Prime Minister of India
,(d) The Union Finance Minister
,5.   All revenues received by the Union Government by way of
,taxes and other receipts for the conduct of Government
,business are credited to the
,(a) Contingency Fund of India
,(b) Public Account
,(c) Consolidated Fund of India
,(d) Deposits and Advances Fund
,"6.   With reference to “Look East Policy” of India, consider the"
,following statements:
,1. India wants to establish itself as an important regional
,player in the East Asian affairs.
,2. India wants to plug the vacuum created by the termination
,of Cold War.
,3. India wants to restore the historical and cultural ties with
,its neighbours in Southeast and East Asia.
,Which of the statements given above is/ are correct?
,(a) 1 only
,(b) 1 and 3 only
,(c) 3 only
,"(d) 1, 2 and 3"
,7.   When the annual Union Budget is not passed by the Lok
,"Sabha,"
,(a) the Budget is modified and presented again
,(b) the Budget is referred to the Rajya Sabha for suggestions
,(c) the Union Finance Minister is asked to resign
,(d) the Prime Minister submits the resignation of Council of
,Ministers
,"8.   Under the Constitution of India, which one of the following is"
,not a fundamental duty?
,(a) To vote in public elections
,(b) To develop the scientific temper
,      (c) To safeguard public property
,(d) To abide the Constitution and respect its ideals
,"9.   With reference to the Finance Commission of India, which of"
,the following statements is correct?
,(a) It encourages the inflow of foreign capital for
,infrastructure development
,(b) It facilitates the proper distribution of finances among the
,Public Sector Undertakings
,(c) It ensures transparency in financial administration
,"(d) None of the statements (a), (b) and (c) given above is"
,correct in this context
,10.    Consider the following:
,1. Right to education.
,2. Right to equal access to public service.
,3. Right to food.
,Which of the above is/are Human Right/Human Rights under
,“Universal Declaration of Human Rights”?
,(a) 1 only
,(b) 1 and 2 only
,(c) 3 only
,"(d) 1, 2 and 3"
,"11.   Consider the following statements: In India, a Metropolitan"
,Planning Committee
,1. is constituted under the provisions of the Constitution of
,India.
,2. prepares the draft development plans for metropolitan
,area.
,3. has the sole responsibility for implementing Government
,sponsored schemes in the metropolitan area.
,Which of the statements given above is/ are correct?
,(a) 1 and 2 only
,(b) 2 only
,(c) 1 and 3 only
,"(d) 1, 2 and 3"
,12.    What is the difference between “vote-on-account” and
,“interim budget”?
,1. The provision of a “vote-on-account” is used by a regular
,"Government, while an “interim budget” is a provision used"
,    by a caretaker Government.
,2. A “vote-on-account” only deals with the expenditure in
,"Government’s budget, while an “interim budget” includes"
,both expenditure and receipts.
,Which of the statements given above is/ are correct?
,(a) 1 only
,(b) 2 only
,(c) Both 1 and 2
,(d) Neither 1 nor 2
,2012 TEST PAPER
,
,1. The distribution of powers between the Centre and the
,States in the Indian Constitution is based on the scheme
,provided in the
,"(a) Morley-Minto Reforms, 1909"
,"(b) Montagu-Chelmsford Act, 1919"
,"(c) Government of India Act, 1935"
,"(d) Indian Independence Act, 1947"
,2. In the areas covered under the Panchayat (Extension to the
,"Scheduled Areas) Act, 1996, what is the role/power of Gram"
,Sabha?
,1. Gram Sabha has the power to prevent alienation of land
,in the Scheduled Areas.
,2. Gram Sabha has the ownership of minor forest produce.
,3. Recommendation of Gram Sabha is required for granting
,prospecting licence or mining lease for any mineral in the
,Scheduled Areas.
,Which of the statements given above is/ are correct?
,(a) 1 only
,(b) 1 and 2 only
,(c) 2 and 3 only
,"(d) 1, 2 and 3"
,"3. In the Parliament of India, the purpose of an adjournment"
,motion is
,(a) to allow a discussion on a definite matter of urgent public
,importance
,(b) to let opposition members collect information from the
,ministers
,(c) to allow a reduction of specific amount in demand for
,grant
,(d) to postpone the proceedings to check the inappropriate
,or violent behaviour on the part of some members
,"4. The National Green Tribunal Act, 2010 was enacted in"
,consonance with which of the following provisions of the
,Constitution of India?
,"    1. Right to healthy environment, construed as a part of Right"
,to life under Article 21
,2. Provision of grants for raising the level of administration in
,the Scheduled Areas for the welfare of Scheduled Tribes
,under Article 275(1)
,3. Powers and functions of Gram Sabha as mentioned
,under Article 243(A)
,5. Consider the following provisions under the Directive
,Principles of State Policy as enshrined in the Constitution of
,India:
,1. Securing for citizens of India a uniform civil code
,2. Organizing village Panchayats
,3. Promoting cottage industries in rural areas
,4. Securing for all the workers reasonable leisure and
,cultural opportunities
,Which of the above are the Gandhian Principles that are
,reflected in the Directive Principles of State Policy?
,"(a) 1, 2 and 4 only"
,(b) 2 and 3 only
,"(c) 1, 3 and 4 only"
,"(d) 1, 2, 3 and 4"
,6. Consider the following statements:
,1. Union Territories are not represented in the Rajya Sabha.
,2. It is within the purview of the Chief Election
,Commissioner to adjudicate the election disputes.
,"3. According to the Constitution of India, the Parliament"
,consists of the Lok Sabha and the Rajya Sabha only.
,Which of the statements given above is/ are correct?
,(a) 1 only
,(b) 2 and 3
,(c) 1 and 3
,(d) None
,7. With reference to consumers” rights / privileges under the
,"provisions of law in India, which of the following statements"
,is/are correct?
,1. Consumers are empowered to take samples for food
,testing.
,    2. When a consumer files a complaint in any consumer
,"forum, no fee is required to be paid."
,"3. In case of death of a consumer, his/ her legal heir can file"
,a complaint in the consumer forum on his/her behalf.
,Select the correct answer using the codes given below:
,(a) 1 only
,(b) 2 and 3 only
,(c) 1 and 3 only
,"(d) 1, 2 and 3"
,"8. Regarding the office of the Lok Sabha Speaker, consider the"
,following statements:
,1. He/She holds the office during the pleasure of the
,President.
,2. He/She need not be a member of the House at the time
,of his/her election but has to become a member of the
,House within six months from the date of his/her election.
,"3. If he/she intends to resign, the letter of his/her resignation"
,has to be addressed to the Deputy Speaker.
,Which of the statements given above is/ are correct?
,(a) 1 and 2 only
,(b) 3 only
,"(c) 1, 2 and 3"
,(d) None
,9. Which of the following are included in the original jurisdiction
,of the Supreme Court?
,1. A dispute between the Government of India and one or
,more States
,2. A dispute regarding elections to either House of the
,Parliament or that of Legislature of a State
,3. A dispute between the Government of India and a Union
,Territory
,4. A dispute between two or more States
,Select the correct answer using the codes given below:
,(a) 1 and 2
,(b) 2 and 3
,(c) 1 and 4
,(d) 3 and 4
,10. Which of the following is/are the principal feature(s) of the
,"Government of India Act, 1919?"
,1. Introduction of diarchy in the executive government of the
,provinces
,2. Introduction of separate communal electorates for
,Muslims
,3. Devolution of legislative authority by the centre to the
,provinces
,Select the correct answer using the codes given below:
,(a) 1 only
,(b) 2 and 3 only
,(c) 1 and 3 only
,"(d) 1, 2 and 3"
,11. Which of the following special powers have been conferred
,on the Rajya Sabha by the Constitution of India?
,(a) To change the existing territory of a State and to change
,the name of a State
,(b) To pass a resolution empowering the Parliament to make
,laws in the State List and to create one or more All India
,Services
,(c) To amend the election procedure of the President and to
,determine the pension of the President after his/ her
,retirement
,(d) To determine the functions of the Election Commission
,and to determine the number of Election Commissioners
,12. Which of the following are the methods of Parliamentary
,control over public finance in India?
,1. Placing Annual Financial Statement before the Parliament
,2. Withdrawal of moneys from Consolidated Fund of India
,only after passing the Appropriation Bill
,3. Provisions of supplementary grants and vote-on-account
,4. A periodic or at least a mid-year review of programme of
,the Government against macroeconomic forecasts and
,expenditure by a Parliamentary Budget Office
,5. Introducing Finance Bill in the Parliament
,Select the correct answer using the codes given below:
,"(a) 1, 2, 3 and 5 only"
,"(b) 1, 2 and 4 only"
,"    (c) 3, 4 and 5 only"
,"(d) 1, 2, 3, 4 and 5"
,13. Which of the following provisions of the Constitution of India
,have a bearing on Education?
,1. Directive Principles of State Policy
,2. Rural and Urban Local Bodies
,3. Fifth Schedule
,4. Sixth Schedule
,5. Seventh Schedule
,Select the correct answer using the codes given below:
,(a) 1 and 2 only
,"(b) 3, 4 and 5 only"
,"(c) 1, 2 and 5 only"
,"(d) 1, 2, 3, 4 and 5"
,"14. In India, other than ensuring that public funds are used"
,"efficiently and for intended purpose, what is the importance of"
,the office of the Comptroller and Auditor General (CAG)?
,1. CAG exercises exchequer control on behalf of the
,Parliament when the President of India declares national
,emergency / financial emergency
,2. CAG reports on the execution of projects or programmes
,by the ministries are discussed by the Public Accounts
,Committee.
,3. Information from CAG reports can be used by
,investigating agencies to press charges against those
,who have violated the law while managing public
,finances.
,4. While dealing with the audit and accounting of
,"government companies, CAG has certain judicial powers"
,for prosecuting those who violate the law.
,Which of the statements given above is/ are correct?
,"(a) 1, 3 and 4 only"
,(b) 2 only
,(c) 2 and 3 only
,"(d) 1, 2, 3 and 4"
,"15. The Prime Minister of India, at the time of his/her"
,appointment
,    (a) need not necessarily be a member of one of the Houses
,of the Parliament but must become a member of one of
,the Houses within six months
,(b) need not necessarily be a member of one of the Houses
,of the Parliament but must become a member of the Lok
,Sabha within six months
,(c) must be a member of one of the Houses of the
,Parliament
,(d) must be a member of the Lok Sabha
,"16. With reference to the Delimitation Commission, consider the"
,following statements:
,1. The orders of the Delimitation Commission cannot be
,challenged in a Court of Law.
,2. When the orders of the Delimitation Commission are laid
,"before the Lok Sabha or State Legislative Assembly, they"
,cannot effect any modifications in the orders.
,Which of the statements given above is/ are correct?
,(a) 1 only
,(b) 2 only
,(c) Both 1 and 2
,(d) Neither 1 nor 2
,"17. According to the Constitution of India, it is the duty of the"
,President of India to cause to be laid before the Parliament
,which of the following?
,1. The Recommendations of the Union Finance Commission
,2. The Report of the Public Accounts Committee
,3. The Report of the Comptroller and Auditor General
,4. The Report of the National Commission for Scheduled
,Castes
,Select the correct answer using the codes given below:
,(a) 1 only
,(b) 2 and 4 only
,"(c) 1, 3 and 4 only"
,"(d) 1, 2, 3 and 4"
,18. A deadlock between the Lok Sabha and the Rajya Sabha
,calls for a joint sitting of the Parliament during the passage of
,1. Ordinary Legislation
,2. Money Bill
,     3. Constitution Amendment Bill
,Select the correct answer using the codes given below:
,(a) 1 only
,(b) 2 and 3 only
,(c) 1 and 3 only
,"(d) 1, 2 and 3"
,19. Which of the following is/are among the Fundamental Duties
,of citizens laid down in the Indian Constitution?
,1. To preserve the rich heritage of our composite culture
,2. To protect the weaker sections from social injustice
,3. To develop the scientific temper and spirit of inquiry
,4. To strive towards excellence in all spheres of individual
,and collective activity
,Select the correct answer using the codes given below:
,(a) 1 and 2only
,(b) 2 only
,"(c) 1, 3 and 4 only"
,"(d) 1, 2, 3 and 4"
,20. What is the provision to safeguard the autonomy of the
,Supreme Court of India?
,"1. While appointing the Supreme Court Judges, the"
,President of India has to consult the Chief Justice of
,India.
,2. The Supreme Court Judges can be removed by the Chief
,Justice of India only.
,3. The salaries of the Judges are charged on the
,Consolidated Fund of India to which the legislature does
,not have to vote.
,4. All appointments of officers and staff of the Supreme
,Court of India are made by the Government only after
,consulting the Chief Justice of India.
,Which of the statements given above is/ are correct?
,(a) 1 and 3 only
,(b) 3 and 4 only
,(c) 4 only
,"(d) 1, 2, 3 and 4"
,2013 TEST PAPER
,
,1. Who among the following constitute the National
,Development Council?
,1. The Prime Minister
,"2. The Chairman, Finance Commission"
,3. Ministers of the Union Cabinet
,4. Chief Ministers of the States
,Select the correct answer using the codes given below:
,"(a) 1, 2 and 3 only"
,"(b) 1, 3 and 4 only"
,(c) 2 and 4 only
,"(d) 1, 2, 3 and 4"
,2. Consider the following statements:
,The Parliamentary Committee on Public Accounts
,1. consists of not more than 25 Members of the Lok Sabha
,2. scrutinizes appropriation and finance accounts of the
,Government
,3. examines the report of the Comptroller and Auditor
,General of India
,Which of the statements given above is/are correct?
,(a) 1 only
,(b) 2 and 3 only
,(c) 3 only
,"(d) 1, 2 and 3"
,"3. In the context of India, which of the following principles is/are"
,implied institutionally in the parliamentary government?
,1. Members of the Cabinet are Members of the Parliament.
,2. Ministers hold the office till they enjoy confidence in the
,Parliament.
,3. Cabinet is headed by the Head of the State.
,Select the correct answer using the codes given below.
,(a) 1 and 2 only
,(b) 3 only
,(c) 2 and 3 only
,"(d) 1, 2 and 3"
,4. Consider the following statements:
,    1. The Council of Ministers in the Centre shall be collectively
,responsible to the Parliament.
,2. The Union Ministers shall hold the office during the
,pleasure of the President of India.
,3. The Prime Minister shall communicate to the President
,about the proposals for legislation.
,Which of the statements given above is/ are correct?
,(a) 1 only
,(b) 2 and 3 only
,(c) 1 and 3 only
,"(d) 1, 2 and 3"
,5. Consider the following statements:
,1. National Development Council is an organ of the Planning
,Commission.
,2. The Economic and Social Planning is kept in the
,Concurrent List in the Constitution of India.
,3. The Constitution of India prescribes that Panchayats
,should be assigned the task of preparation of plans for
,economic development and social justice.
,Which of the statements given above is/ are correct?
,(a) 1 only
,(b) 2 and 3 only
,(c) 1 and 3 only
,"(d) 1, 2 and 3"
,6. Consider the following statements:
,1. The Chairman and the Deputy Chairman of the Rajya
,Sabha are not the members of that House.
,2. While the nominated members of the two Houses of the
,Parliament have no voting right in the presidential
,"election, they have the right to vote in the election of the"
,Vice President.
,Which of the statements given above is/ are correct?
,(a) 1 only
,(b) 2 only
,(c) Both 1 and 2
,(d) Neither 1 nor 2
,"7. With reference to National Legal Services Authority, consider"
,the following statements:
,     1. Its objective is to provide free and competent legal
,services to the weaker sections of the society on the basis
,of equal opportunity.
,2. It issues guidelines for the State Legal Services
,Authorities to implement the legal programmes and
,schemes throughout the country.
,Which of the statements given above is/ are correct?
,(a) 1 only
,(b) 2 only
,(c) Both 1 and 2
,(d) Neither 1 nor 2
,8. Under the Scheduled Tribes and Other Traditional Forest
,"Dwellers (Recognition of Forest Rights) Act, 2006, who shall"
,be the authority to initiate the process for determining the
,nature and extent of individual or community forest rights or
,both?
,(a) State Forest Department
,(b) District Collector / Deputy Commissioner
,(c) Tahsildar / Block Development Officer / Mandal Revenue
,Officer
,(d) Gram Sabha
,9. “Economic Justice” as one of the objectives of the Indian
,Constitution has been provided in
,(a) the Preamble and the Fundamental Rights
,(b) the Preamble and the Directive Principles of State Policy
,(c) the Fundamental Rights and the Directive Principles of
,State Policy
,(d) None of the above
,(c) Directive Principles of State Policy
,(d) Fundamental Rights and Fundamental Duties
,11. What will follow if a Money Bill is substantially amended by
,the Rajya Sabha?
,"(a) The Lok Sabha may still proceed with the Bill, accepting"
,or not accepting the recommendations of the Rajya
,Sabha
,(b) The Lok Sabha cannot consider the Bill further
,(c) The Lok Sabha may send the Bill to the Rajya Sabha for
,reconsideration
,      (d) The President may call a joint sitting for passing the Bill
,12.   Which one of the following statements is correct?
,"(a) In India, the same person cannot be appointed as"
,Governor for two or more States at the same time
,(b) The Judges of the High Court of the States in India are
,appointed by the Governor of the State just as the
,Judges of the Supreme Court are appointed by the
,President
,(c) No procedure has been laid down in the Constitution of
,India for the removal of a Governor from his/her post
,"(d) In the case of a Union Territory having a legislative setup,"
,the Chief Minister is appointed by the Lt. Governor on the
,basis of majority support
,"13.   With reference to Indian History, the Members of the"
,Constituent Assembly from the Provinces were
,(a) directly elected by the people of those Provinces
,(b) nominated by the Indian National Congress and the
,Muslim League
,(c) elected by the Provincial Legislative Assemblies
,(d) selected by the Government for their expertise in
,constitutional matters
,14.   Consider the following statements:
,1. An amendment to the Constitution of India can be
,initiated by an introduction of a bill in the Lok Sabha only.
,2. If such an amendment seeks to make changes in the
,"federal character of the Constitution, the amendment also"
,requires to be ratified by the legislature of all the States of
,India.
,Which of the statements given above is/ are correct?
,(a) 1 only
,(b) 2 only
,(c) Both 1 and 2
,(d) Neither 1 nor 2
,15.   Consider the following statements: Attorney General of India
,can
,1. take part in the proceedings of the Lok Sabha
,2. be a member of a committee of the Lok Sabha
,3. speak in the Lok Sabha
,     4. vote in the Lok Sabha
,Which of the statements given above is/ are correct?
,(a) 1 only
,(b) 2 and 4 only
,"(c) 1, 2 and 3"
,(d) 1 and 3 only
,16. Which of the following bodies does not/ do not find mention
,in the Constitution?
,1. National Development Council
,2. Planning Commission
,3. Zonal Councils
,Select the correct answer using the codes given below.
,(a) 1 and 2 only
,(b) 2 only
,(c) 1 and 3 only
,"(d) 1, 2 and 3"
,17. The Parliament can make any law for whole or any part of
,India for implementing international treaties
,(a) with the consent of all the States
,(b) with the consent of the majority of States
,(c) with the consent of the States concerned
,(d) without the consent of any State
,18. The Government enacted the Panchayat Extension to
,Scheduled Areas (PESA) Act in 1996. Which one of the
,following is not identified as its objective?
,(a) To provide self-governance
,(b) To recognize traditional rights
,(c) To create autonomous regions in tribal areas
,(d) To free tribal people from exploitation
,2014 TEST PAPER
,1. Consider the following languages:
,1. Gujarati
,2. Kannada
,3. Telugu
,Which of the above has/have been declared as “Classical
,Language/Languages” by the Government?
,(a) 1 and 2 only
,(b) 3 only
,(c) 2 and 3 only
,"(d) 1, 2 and 3"
,2. Which one of the following is the largest Committee of the
,Parliament?
,(a) The Committee on Public Accounts
,(b) The Committee on Estimates
,(c) The Committee on Public Undertakings
,(d) The Committee on Petitions
,3. The sales tax you pay while purchasing a toothpaste is a
,(a) tax imposed by the Central Government
,(b) tax imposed by the Central Government but collected by
,the State Government
,(c) tax imposed by the State Government but collected by
,the Central Government
,(d) tax imposed and collected by the State Government
,4. Which one of the following Schedules of the Constitution of
,India contains provisions regarding anti-defection?
,(a) Second Schedule
,(b) Fifth Schedule
,(c) Eighth Schedule
,(d) Tenth Schedule
,"5. In the Constitution of India, promotion of international peace"
,and security is included in the
,(a) Preamble to the Constitution
,(b) Directive Principles of State Policy
,(c) Fundamental Duties
,(d) Ninth Schedule
,6. Which of the following are associated with ‘Planning’ in
,India?
,1. The Finance Commission
,2. The National Development Council.
,3. The Union Ministry of Rural Development
,4. The Union Ministry of Urban Development
,5. The Parliament
,Select the correct answer using the code given below.
,"(a) 1, 2 and 5 only"
,"(b) 1, 3 and 4 only"
,(c) 2 and 5 only
,"(d) 1, 2, 3, 4 and 5"
,7. Which of the following is/are the function/functions of the
,Cabinet Secretariat?
,1. Preparation of agenda for Cabinet Meetings
,2. Secretarial assistance to Cabinet Committees
,3. Allocation of financial resources to the Ministries
,Select the correct answer using the code given below.
,(a) 1 only
,(b) 2 and 3 only
,(c) 1 and 2 only
,"(d) 1, 2 and 3"
,8. Consider the following statements:
,A Constitutional Government is one which
,1. places effective restrictions on individual liberty in the
,interest of State Authority
,2. places effective restrictions on the Authority of the State
,in the interest of individual liberty
,Which of the statements given above is/ are correct?
,(a) 1 only
,(b) 2 only
,(c) Both 1 and 2
,(d) Neither 1 nor 2
,9. Which of the following are the discretionary powers given to
,the Governor of a State?
,1. Sending a report to the President of India for imposing the
,President’s rule
,2. Appointing the Ministers
,     3. Reserving certain bills passed by the State Legislature for
,consideration of the President of India
,4. Making the rules to conduct the business of the State
,Government
,Select the correct answer using the code given below.
,(a) 1 and 2 only
,(b) 1 and 3 only
,"(c) 2, 3 and 4 only"
,"(d) 1, 2, 3 and 4"
,10. Consider the following statements:
,1. The President shall make rules for the more convenient
,"transaction of the business of the Government of India,"
,and for the allocation among Ministers of the said
,business.
,2. All executive actions of the Government of India shall be
,expressed to be taken in the name of the Prime Minister.
,Which of the statements given above is/ are correct?
,(a) 1 only
,(b) 2 only
,(c) Both 1 and 2
,(d) Neither 1 nor 2
,11. Consider the following statements regarding a No-
,Confidence Motion in India:
,1. There is no mention of a NoConfidence Motion in the
,Constitution of India.
,2. A Motion of No-Confidence can be introduced in the Lok
,Sabha only.
,Which of the statements given above is/ are correct?
,(a) 1 only
,(b) 2 only
,(c) Both 1 and 2
,(d) Neither 1 nor 2
,12. The power of the Supreme Court of India to decide disputes
,between the Centre and the States falls under its
,(a) advisory jurisdiction
,(b) appellate jurisdiction
,(c) original jurisdiction
,(d) writ jurisdiction
,13. The power to increase the number of judges in the Supreme
,Court of India is vested in
,(a) the President of India
,(b) the Parliament
,(c) the Chief Justice of India
,(d) the Law Commission
,2015 TEST PAPER
,1. Consider the following statements regarding the Directive
,Principles of State Policy:
,1. The Principles spell out the socioeconomic democracy in
,the country.
,2. The provisions contained in these Principles are not
,enforceable by any court.
,Which of the statements given above is/ are correct?
,(a) 1 only
,(b) 2 only
,(c) Both 1 and 2
,(d) Neither 1 nor 2
,2. Consider the following statements:
,1. The Rajya Sabha has no power either to reject or to
,amend a Money Bill.
,2. The Rajya Sabha cannot vote on the Demands for
,Grants.
,3. The Rajya Sabha cannot discuss the Annual Financial
,Statement.
,Which of the statements given above is/ are correct?
,(a) 1 only
,(c) 2 and 3 only
,3. The Government clearly defined
,(b) 1 and 2 only
,"(d) 1, 2 and 3 of India Act of 1919"
,(a) the separation of power between the judiciary and the
,legislature
,(b) the jurisdiction of the central and provincial governments
,(c) the powers of the Secretary of State for India and the
,Viceroy
,(d) None of the above
,4. When a bill is referred to a joint sitting of both the Houses of
,"the Parliament, it has to be passed by"
,(a) a simple majority of members present and voting
,(b) three-fourths majority of members present and voting
,(c) two-thirds majority of the Houses
,     (d) absolute majority of the Houses
,5.   The Government of India has established NITI Aayog to
,replace the
,(a) Human Rights Commission
,(b) Finance Commission
,(c) Law Commission
,(d) Planning Commission
,6.   Consider the following statements:
,1. The Executive Power of the Union of India is vested in the
,Prime Minister.
,2. The Prime Minister is the ex officio Chairman of the Civil
,Services Board.
,Which of the statements given above is/are correct?
,(a) 1 only
,(b) 2 only
,(c) Both 1 and 2
,(d) Neither 1 nor 2
,7.   The provisions in Fifth Schedule and Sixth Schedule in the
,Constitution of India are made in order to
,(a) protect the interests of Scheduled Tribes
,(b) determine the boundaries between States
,"(c) determine the powers, authority and responsibilities of"
,Panchayats
,(d) protect the interests of all the border States
,"8.   With reference to the Union Government, consider the"
,following statements:
,1. The Department of Revenue is responsible for the
,preparation of Union Budget that is presented to the
,Parliament.
,2. No amount can be withdrawn from the Consolidated Fund
,of India without the authorization from the Parliament of
,India.
,3. All the disbursements made from Public Account also
,need the authorization from the Parliament of India.
,Which of the statements given above is/ are correct?
,(a) 1 and 2 only
,(b) 2 and 3 only
,(c) 2 only
,"      (d) 1, 2 and 3"
,9.   Who/Which of the following is the custodian of the
,Constitution of India?
,(a) The President of India
,(b) The Prime Minister of India
,(c) The Lok Sabha Secretariat
,(d) The Supreme Court of India
,10.    Which one of the following was given classical language
,status recently?
,(a) Odia
,(b) Konkani
,(c) Bhojpuri
,(d) Assamese
,11.   Consider the following statements:
,1. The Legislative Council of a State in India can be larger in
,size that half of the Legislative Assembly of that particular
,State.
,2. The Governor of State nominates the Chairman of
,Legislative Council of that particular State.
,Which of the statements given above is/ are correct?
,(a) 1 only
,(b) 2 only
,(c) Both 1 and 2
,(d) Neither 1 nor 2
,"12.    “To uphold and protect the Sovereignty, Unity and Integrity of"
,India” is a provision made in the
,(a) Preamble of the Constitution
,(b) Directive Principles of State Policy
,(c) Fundamental Rights
,(d) Fundamental Duries
,13.    The fundamental object of Panchayati Raj system is to
,ensure which among the following
,1. People’s participation in development
,2. Political accountability
,3. Democratic decentralization
,4. Financial mobilization
,Select the correct answer using the code given below.
,"(a) 1, 2 and 3 only"
,    (b) 2 and 4 only
,(c) 1 and 3 only
,"(d) 1, 2, 3 and 4"
,14. The ideal of “Welfare State” in the Indian Constitution is
,enshrined in its
,(a) Preamble
,(b) Directive Principles of State Policy
,(c) Fundamental Rights
,(d) Seventh Schedule
,15. There is a Parliamentary System of Government in India
,because the
,(a) Lok Sabha is elected directly by the people
,(b) Parliament can amend the Constitution
,(c) Rajya Sabha cannot be dissolved
,(d) Council of Ministers is responsible to the Lok Sabha
,2016 TEST PAPER
,1. Which of the following statements is/are correct?
,1. A Bill pending in the Lok Sabha lapses on its prorogation.
,"2. A Bill pending in the Rajya Sabha, which has not been"
,"passed by the Lok Sabha, shall not lapse on dissolution"
,of the Lok Sabha.
,Select the correct answer using the code given below.
,(a) 1 only
,(b) 2 only
,(c) Both 1 and 2
,(d) Neither 1 nor 2
,2. Consider the following statements:
,1. The Chief Secretary in a State is appointed by the
,Governor of that State.
,2. The Chief Secretary in a State has a fixed tenure.
,Which of the statements given above is/ are correct?
,(a) 1 only
,(b) 2 only
,(c) Both 1 and 2
,(d) Neither 1 nor 2
,"3. With reference to the “Gram Nyayalaya Act’, which of the"
,following statements is/are correct?
,"1. As per the Act, Gram Nyayalayas can hear only civil"
,cases and not criminal cases.
,2. The      Act    allows      local   social  activists   as
,mediators/reconciliators.
,Select the correct answer using the code given below.
,(a) 1 only
,(b) 2 only
,(c) Both 1 and 2
,(d) Neither 1 nor 2
,4. The Parliament of India acquires the power to legislate on
,any item in the State List in the national interest if a
,resolution to that effect is passed by the
,(a) Lok Sabha by a simple majority of its total membership
,   (b) Lok Sabha by a majority of not less than two-thirds of its
,total membership
,(c) Rajya Sabha by a simple majority of its total membership
,(d) Rajya Sabha by a majority of not less than two-thirds of
,its members present and voting
,5. Consider the following statements:
,1. The minimum age prescribed for any person to be a
,member of Panchayat is 25 years.
,2. A Panchayat reconstituted after premature dissolution
,continues only for the remainder period.
,Which of the statements given above is/are correct?
,(a) 1 only
,(b) 2 only
,(c) Both 1 and 2
,(d) Neither 1 nor 2
,6. The Montague-Chelmsford Proposals were related to
,(a) Social reforms
,(b) educational reforms
,(c) reforms in police administration
,(d) constitutional reforms
,2017 TEST PAPER
,1. Which one of the following objectives is not embodied in the
,Preamble to the Constitution of India?
,(a) Liberty of thought
,(b) Economic liberty
,(c) Liberty of expression
,(d) Liberty of belief
,2. The mind of the makers of the Constitution of India is
,reflected in which of the following?
,(a) The Preamble
,(b) The Fundamental Rights
,(c) The Directive Principles of State Policy
,(d) The Fundamental Duties
,3. Which of the following are envisaged by the Right against
,Exploitation in the Constitution of India?
,1. Prohibition of traffic in human beings and forced labour
,2. Abolition of untouchability
,3. Protection of the interests of minorities
,4. Prohibition of employment of children in factories and
,mines
,Select the correct answer using the code given below:
,"(a) 1, 2 and 4 only"
,"(b) 2, 3 and 4 only"
,(c) 1 and 4 only
,"(d) 1, 2, 3 and 4"
,4. Which one of the following statements is correct?
,(a) Rights are claims of the State against the citizens.
,(b) Rights are privileges which are incorporated in the
,Constitution of a State.
,(c) Rights are claims of the citizens against the State.
,(d) Rights are privileges of a few citizens against the many.
,5. Which of the following statements is/ are true of the
,Fundamental Duties of an Indian citizen?
,1. A legislative process has been provided to enforce these
,duties.
,2. They are correlative to legal duties.
,     Select the correct answer using the code given below:
,(a) 1 only
,(b) 2 only
,(c) Both 1 and 2
,(d) Neither 1 nor 2
,"6.   In the context of India, which one of the following is the"
,correct relationship between Rights and Duties?
,(a) Rights are correlative with Duties.
,(b) Rights are personal and hence independent of society
,and Duties.
,"(c) Rights, not Duties, are important for the advancement of"
,the personality of the citizen.
,"(d) Duties, not Rights, are important for the stability of the"
,State.
,7.   Which principle among the following was added to the
,Directive Principles of State Policy by the 42nd Amendment
,to the Constitution?
,(a) Equal pay for equal work for both men and women
,(b) Participation of workers in the management of industries
,"(c) Right to work, education and public assistance"
,(d) Securing living wage and human conditions of work to
,workers
,8.   Consider the following statements:
,"With reference to the Constitution of India, the Directive"
,Principles of State Policy constitute limitations upon
,1. Legislative function.
,2. Executive function.
,Which of the above statements is/are correct?
,(a) 1 only
,(b) 2 only
,(c) Both 1 and 2
,(d) Neither 1 nor 2
,"9.   For election to the Lok Sabha, a nomination paper can be"
,filed by
,(a) Anyone residing in India.
,(b) A resident of the constituency from which the election is
,to be contested.
,      (c) Any citizen of India whose name appears in the electoral
,roll of a constituency.
,(d) Any citizen of India.
,10.   Consider the following statements:
,"1. In the election for Lok Sabha or State Assembly, the"
,winning candidate must get at least 50 percent of the
,"votes polled, to be declared elected."
,2. According to the provisions laid down in the Constitution
,"of India, in Lok Sabha, the Speaker’s post goes to the"
,majority party and the Deputy Speaker’s to the
,Opposition.
,Which of the statements given above is/ are correct?
,(a) 1 only
,(b) 2 only
,(c) Both 1 and 2
,(d) Neither 1 nor 2
,11.   Right to vote and to be elected in India is a
,(a) Fundamental Right
,(b) Natural Right
,(c) Constitutional Right
,(d) Legal Right
,12.   Consider the following statements:
,1. The Election Commission of India is a five-member body.
,2. Union Ministry of Home Affairs decides the election
,schedule for the conduct of both general elections and by-
,elections.
,3. Election Commission resolves the disputes relating to
,splits/mergers of recognized political parties.
,Which of the statements given above is/ are correct?
,(a) 1 and 2 only
,(b) 2 only
,(c) 2 and 3 only
,(d) 3 only
,13.   Which of the following are not necessarily the consequences
,of the proclamation of the President’s rule in a State?
,1. Dissolution of the State Legislative Assembly
,2. Removal of the Council of Ministers in the State
,3. Dissolution of the local bodies
,      Select the correct answer using the code given below:
,(a) 1 and 2 only
,(b) 1 and 3 only
,(c) 2 and 3 only
,"(d) 1, 2 and 3"
,14.    Which one of the following is not a feature of Indian
,federalism?
,(a) There is an independent judiciary in India.
,(b) Powers have been clearly divided between the Centre
,and the States.
,(c) The federating units have been given unequal
,representation in the Rajya Sabha.
,(d) It is the result of an agreement among the federating
,units.
,15.    Local self-government can be best explained as an exercise
,in
,(a) Federalism
,(b) Democratic decentralization
,(c) Administrative delegation
,(d) Direct democracy
,16.    The Parliament of India exercises control over the functions
,of the Council of Ministers through
,1. Adjournment motion
,2. Question hour
,3. Supplementary questions
,Select the correct answer using the code given below:
,(a) 1 only
,(b) 2 and 3 only
,(c) 1 and 3 only
,"(d) 1, 2 and 3"
,"17.    With reference to the Parliament of India, consider the"
,following statements:
,1. A private member’s bill is a bill presented by a Member of
,Parliament who is not elected but only nominated by the
,President of India.
,"2. Recently, a private member’s bill has been passed in the"
,Parliament of India for the first time in its history.
,Which of the statements given above is/ are correct?
,      (a) 1 only
,(b) 2 only
,(c) Both 1 and 2
,(d) Neither 1 nor 2
,18.   The main advantage of the parliamentary form of
,government is that
,(a) The executive and legislature work independently.
,(b) It provides continuity of policy and is more efficient.
,(c) The executive remains responsible to the legislature.
,(d) The head of the government cannot be changed without
,election.
,"19.   Out of the following statements, choose the one that brings"
,out the principle underlying the Cabinet form of Government:
,(a) An arrangement for minimizing the criticism against the
,Government whose responsibilities are complex and hard
,to carry out to the satisfaction of all.
,(b) A mechanism for speeding up the activities of the
,Government whose responsibilities are increasing day by
,day.
,(c) A mechanism of parliamentary democracy for ensuring
,collective responsibility of the Government to the people.
,(d) A device for strengthening the hands of the head of the
,Government whose hold over the people is in a state of
,decline.
,"20.   In India, Judicial Review implies"
,(a) The power of the Judiciary to pronounce upon the
,constitutionality of laws and executive orders.
,(b) The power of the Judiciary to question the wisdom of the
,laws enacted by the Legislatures.
,(c) The power of the Judiciary to review all the legislative
,enactments before they are assented to by the President.
,(d) The power of the Judiciary to review its own judgements
,given earlier in similar or different cases.
,21.   Democracy’s superior virtue lies in the fact that it calls into
,activity
,(a) The intelligence and character of ordinary men and
,women.
,(b) The methods for strengthening executive leadership.
,    (c) A superior individual with dynamism and vision.
,(d) A band of dedicated party workers.
,22. One of the implications of equality in society is the absence
,of
,(a) Privileges
,(b) Restraints
,(c) Competition
,(d) Ideology
,2018 TEST PAPER
,
,1. In the federation established by the Government on India Act
,"of 1935, Residuary Power were given to the"
,(a) Federal Legislature
,(b) Governor General
,(c) Provincial Legislature
,(d) Provincial Governors
,2. Consider the following statements :
,1. Aadhaar card can be used as a proof of citizenship or
,domicile.
,"2. Once issued, Aadhaar number cannot be deactivated or"
,omitted by the Issuing Authority.
,Which of the statements given above is/ are correct?
,(a) 1 only
,(b) 2 only
,(c) Both 1 and 2
,(d) Neither 1 nor 2
,3. Right to Privacy is protected as an intrinsic part of Right to
,Life and Personal Liberty. Which of the following in the
,Constitution of India correctly and appropriately imply the
,above statement?
,(a) Article 14 and the provisions under the 42nd Amendment
,to the Constitution
,(b) Article 17 and the Directive Principles of State Policy in
,Part IV
,(c) Article 21 and the freedoms guaranteed in Part. III
,(d) Article 24 and the provisions under the 44th Amendment
,to the Constitution
,"4. With reference to the election of the President of India,"
,consider the following statements:
,1. The value of the vote of each MLA varies from State to
,State.
,2. The value of the vote of MPs of the Lok Sabha is more
,than the value of the vote of MPs of the Rajya Sabha.
,Which of the statements given above is/ are Correct?
,(a) 1 only
,     (b) 2 only
,(c) Both 1 and 2
,(d) Neither 1 or 2
,5.   Consider the following statements:
,1. No criminal proceedings shall be instituted against the
,Governor of a State any court during his term of office.
,2. The emoluments and allowances of the Governor of a
,State shall not be diminished during his term of office.
,Which of the statements given above is/ are correct?
,(a) 1 only
,(b) 2 only
,(c) Both 1 and 2
,(d) Neither 1 nor 2
,"6.   With reference to the Parliament of India, which of the"
,following Parliamentary Committees scrutinizes and reports
,"to the House whether the powers to make regulations, rules,"
,"sub-rules, by-laws, etc. conferred by the Constitution or"
,delegated by the Parliament are being properly exercised by
,the Executive within the scope of such delegation?
,(a) Committee on Government Assurances
,(b) Committee on Subordinate Legislation
,(c) Rules Committee
,(d) Business Advisory Committee
,7.   Consider the following statements:
,1. The Speaker of the Legislative Assembly shall vacate
,his/her office if he/she ceases to be a member of the
,Assembly.
,"2. Whenever the Legislative Assembly is dissolved, the"
,Speaker shall vacate his/her office immediately.
,Which of the statements given above is/ are correct?
,(a) 1 only
,(b) 2 only
,(c) Both 1 and 2
,(d) Neither 1 nor 2
,8.   If the President of India exercises his power as provided
,under Article 356 of the Constitution in respect of a particular
,"State, then"
,(a) the Assembly of the State is automatically dissolved.
,    (b) the powers of the Legislature of that State shall be
,exercisable by or under the authority of the Parliament.
,(c) Article 19 is suspended in that State.
,(d) the President can make laws relating to that State.
,9. Consider the following statements :
,1. The Parliament of India can place a particular law in the
,Ninth Schedule of the Constitution of India.
,2. The validity of a law placed in the Ninth Schedule cannot
,be examined by any court and no judgement can be
,made on it.
,Which of the statements given above is/ are correct ?
,(a) 1 only
,(b) 2 only
,(c) Both 1 and 2
,(d) Neither 1 nor 2
,10. Consider the following statements:
,"1. In the first Lok Sabha, the single largest party in the"
,opposition was the Swatantra Party.
,"2. In the Lok Sabha, a “Leader of the Opposition” was"
,recognized for the first time in1969.
,"3. In the Lok Sabha, if a party does not have a minimum of"
,"75 members, its leader cannot be recognized as the"
,Leader of the Opposition.
,Which of the statements given above is/ are correct?
,(a) 1 and 3 only
,(b) 2 only
,(c) 2 and 3 only
,"(d) 1, 2 and 3"
,"11. Which one of the following reflects the nicest, appropriate"
,relationship between law and liberty?
,"(a) if there are more laws, there is less liberty."
,"(b) If there are no laws, there is no liberty."
,"(c) If there is liberty, laws have to be made by the people."
,"(d) If laws are changed too often, liberty is in danger."
,12. Which of the following are regarded as the main features of
,the “Rule of Law”?
,1. Limitation of powers
,2. Equality before law
,     3. People’s responsibility to the Government
,4. Liberty and civil rights
,Select the correct answer using the code given below:
,(a) 1 and 3 only
,(b) 2 and 4 only
,"(c) 1, 2 and 4 only"
,"(d) 1, 2, 3 and 4"
,13. Consider the following statements:
,"1. As per the Right to Education (RTE) Act, to be eligible for"
,"appointment as a teacher in a State, a person would be"
,required to possess the minimum qualification laid down
,by the concerned State Council of Teacher Education.
,"2. As per the RTE Act, for teaching primary classes, a"
,candidate is required to pass a Teacher Eligibility Test
,conducted in accordance with the National Council of
,Teacher Education guidelines.
,"3. In India, more than 90% of teacher education institutions"
,are directly under the State Governments.
,Which of the statements given above is/ are correct?
,(a) 1 and 2
,(b) 2 only
,(c) 1 and 3
,(d) 3 only
,14. How is the National Green Tribunal (NGT) different from the
,Central Pollution Control Board (CPCB)?
,1. The NGT has been established by an Act whereas the
,CPCB has been created by an executive order of the
,Government.
,2. The NGT provides environmental justice and helps
,reduce the burden of litigation in the higher courts
,whereas the CPCB promotes cleanliness of streams and
,"wells, and aims to improve the quality of air in the country."
,Which of the statements given above is/ are correct?
,(a) 1 only
,(b) 2 only
,(c) Both 1 and 2
,(d) Neither 1 nor 2
,"15. Regarding Money Bill, which of the following statement is not"
,correct?
,(a) A bill shall be deemed to be a Money Bill if it contains
,"only provisions relating to imposition, abolition, remission,"
,alteration or regulation of any tax.
,(b) A Money Bill has provisions for the custody of the
,Consolidated Fund of India or the Contingency Fund of
,India.
,(c) A Money bill is concerned with the appropriation of
,moneys out of the Contingency Fund of India.
,(d) A Money Bill deals with the regulation of borrowing of
,money or giving of any guarantee by the Government of
,India.
,2019 TEST PAPER
,1. Which Article of the Constitution of India safeguards one’s
,right to marry the person of one’s choice?
,(a) Article 19
,(b) Article 21
,(c) Article 25
,(d) Article 29
,2. Under which schedule of the Constitution of India can the
,transfer of tribal land to private parties for mining be declared
,null and void?
,(a) Third Schedule
,(b) Fifth Schedule
,(c) Ninth Schedule
,(d) Twelfth Schedule
,3. Consider the following statements:
,"1. As per recent amendment to the India Forest Act, 1927,"
,forest dwellers have the right to fell the bamboos grown
,on the forest areas.
,2. As per the Scheduled Tribes and Other Traditional Forest
,"Dwellers (Recognition of Forest Rights) Act, 2006,"
,bamboo is a minor forest produce.
,3. The Scheduled Tribes and other Traditional Forest
,"Dwellers (Recognition of Forest Rights) Act, 2006 allows"
,ownership of minor forest produce to forest dwellers.
,Which of the following statements given above is/are correct?
,(a) 1 and 2 only
,(b) 2 and 3 only
,(c) 3 only
,"(d) 1, 2 and 3"
,4. Consider the following statements :
,1. The 44th Amendment to the Constitution of India
,introduced an Article placing the election of the Prime
,Minister beyond judicial review.
,2. The Supreme Court of India struck down the 99th
,Amendment to the Constitution of India as being violative
,of the independence of judiciary.
,     Which of the statements given above is/ are correct?
,(a) 1 only
,(b) 2 only
,(c) Both 1 and 2
,(b) Neither 1 nor 2
,5.   The Ninth Schedule was introduced in the Constitution of
,India during the prime ministership of
,(a) Jawaharlal Nehru
,(b) Lal Bahadur Shastri
,(c) Indira Gandhi
,(d) Morarji Desai
,"6.   With reference to the Constitution of India, consider the"
,following statements :
,1. No High Court shall have the jurisdiction to declare any
,central law to be constitutionally invalid.
,2. An amendment to the Constitution of India cannot be
,called into question by the Supreme Court of India.
,Which of the statements given above is/ are correct?
,(a) 1 only
,(b) 2 only
,(c) Both 1 and 2
,(d) Neither 1 nor 2
,"7.   With reference to the constitution of India, prohibition or"
,limitations or provisions contained in ordinary laws cannot act
,as prohibitions or limitations on the constitutional powers
,under Article 142. It could mean which one of the following?
,(a) The decisions taken by the Election Commission of India
,while discharging its duties can not be challenged in any
,court of law.
,(b) The Supreme Court of India is not constrained in the
,exercise of its powers by laws made by the parliament.
,"(c) In the event of grave financial crises in the country, the"
,President of India can declare Financial Emergency
,without the counsel from the cabinet.
,(d) State Legislatures can not make laws on certain matters
,without the concurrence of the Union legislature.
,8.   Consider the following statements :
,     1. The motion to impeach a judge of the Supreme Court of
,India cannot be rejected by the Speaker of the Lok Sabha
,"as per the Judges (Inquiry) Act, 1968."
,2. The constitution of India defines and gives details of what
,constitutes “incapacity and proved misbehaviour” of the
,judges of the Supreme Court of India.
,3. The details of the process of the impeachment of the
,judges of the Supreme Court of India are given in the
,"judges (Inquiry) Act, 1968."
,4. If the motion of the impeachment of a judge is taken up
,"for voting, the law requires the motion to be backed by"
,each house of the parliament and supported by a majority
,of total membership of that house and by not less than
,two-thirds of total members of that House present and
,voting.
,Which of the statements given above is/ are correct?
,(a) 1 and 2
,(b) 3 only
,(c) 3 and 4 only
,"(d) 1,3 and 4"
,9. Which one of the following suggested that the Governor
,should be an eminent person from outside the State and
,should be a detached figure without intense political links or
,should not have taken part in politics in the recent past?
,(a) First Administrative Reforms Commission (1966)
,(b) Rajamannar Committee (1969)
,(c) Sarkaria Commission (1983)
,(d) National Commission to Review the Working of the
,Constitution (2000)
,10. Consider the following statements:
,"1. The Parliament (Prevention of Disqualification) Act, 1959"
,exempts several posts from disqualification on the
,grounds of ‘Office of Profit’.
,2. The above-mentioned Act was amended five times.
,3. The term “Office of Profit” is well-defined in the
,Constitution of India.
,Which of the following statements given above is/are correct?
,(a) 1 and 2 only
,      (b) 3 only
,(c) 2 and 3 only
,"(d) 1, 2 and 3"
,11.   With reference to the Legislative Assembly of a State in
,"India, consider the following statements:"
,1. The Governor makes a customary address to members of
,the house at the commencement of the first session of the
,year.
,2. When a State Legislature does not have a rule on the
,"particular matter, it follows the Lok Sabha rule on that"
,matter.
,Which of the following statements given above is/are correct?
,(a) 1 only
,(b) 2 only
,(c) Both 1 and 2
,(d) Neither 1 nor 2
,"12.    In the context of polity, which one of the following would you"
,accept as the most appropriate definition of liberty?
,(a) Protection against the tyranny of political rulers
,(b) Absence of restraint
,(c) Opportunity to do whatever one likes
,(d) Opportunity to develop oneself fully.
,13.    Consider the following statements about “the Charter Act of
,1813’:
,1. It ended the trade monopoly of the East India Company in
,India except for trade in tea and trade with China.
,2. It asserted the sovereignty of the British Crown over the
,Indian territories held by the Company.
,3. The revenues of India were now controlled by the British
,Parliament.
,Which of the statements given above are correct?
,(a) 1 and 2 only
,(b) 2 and 3 only
,(c) 1 and 3 only
,"(d) 1, 2 and 3"
,"14.    In India, which of the following review the independent"
,"regulators in sectors like telecommunications, insurance,"
,"electricity, etc.?"
,     1. Ad Hoc Committees set up by the Parliament
,2. Parliamentary Department Related Standing Committees
,3. Finance Commission
,4. Financial Sector Legislative Reforms Commission
,5. NITI Aayog
,Select the correct answer using the code given below.
,(a) 1 and 2
,"(b) 1, 3 and 4"
,"(c) 3, 4 and 5"
,(d) 2 and 5
,15. Consider the following statements:
,1. Petroleum and Natural Gas Regulatory Board (PNGRB)
,is the first regulatory body set up by the Government of
,India.
,2. One of the tasks of PNGRB is to ensure competitive
,markets for gas.
,3. Appeals against the decisions of PNGRB go before the
,Appellate Tribunals for Electricity.
,Which of the statements given above are correct?
,(a) 1 and 2 only
,(b) 2 and 3 only
,(c) 1 and 3 only
,"(d) 1, 2 and 3"
,
,Answers
,
,2010 TEST PAPER
,1.   b
,2.   b
,3.   d
,4.   b
,5.   a
,6.   b
,7.   d
,8.   c
,9.   b
,10.   a
,2011 TEST PAPER
,1.   c
,2.   c
,3.   d
,4.   b
,5.   c
,6.   b
,7.   d
,8.   a
,9.   d
,10.   d
,11.   a
,12.   b
,
,2012 TEST PAPER
,1.   c
,2.   d
,3.   a
,4.   a
,5.   b
,6.   d
,7.   c
,8.   b
,9.   c
,10.   c
,11.   b
,12.   a
,13.   c
,14.   c
,15.   a
,16.   c
,17.   c
,18.   a
,19.   c
,20.   a
,
,2013 TEST PAPER
, 1.   b
,2.   b
,3.   a
,4.   b
,5.   b
,6.   b
,7.   c
,8.   d
,9.   b
,10.   c
,11.   a
,12.   c
,13.   c
,14.   d
,15.   c
,16.   d
,17.   d
,18.   c
,
,2014 TEST PAPER
,1.   c
,2.   b
,3.   d
,4.   d
,5.   b
,6.   c
,7.   c
,8.   b
,9.   b
,10.   a
,11.   c
,12.   c
,13.   b
,
,2015 TEST PAPER
,1. c
,2. b
,3. b
, 4.   a
,5.   d
,6.   d
,7.   a
,8.   c
,9.   d
,10.   a
,11.   d
,12.   d
,13.   c
,14.   b
,15.   d
,
,2016 TEST PAPER
,1.   b
,2.   d
,3.   b
,4.   d
,5.   b
,6.   d
,
,2017 TEST PAPER
,1.   b
,2.   a
,3.   c
,4.   c
,5.   d
,6.   a
,7.   b
,8.   d
,9.   c
,10.   d
,11.   d
,12.   d
,13.   b
,14.   d
,15.   b
,16.   d
,17.   d
,18.   c
,19.   c
,20.   a
,21.   a
,22.   a
,
,2018 TEST PAPER
,1.   b
,2.   d
,3.   c
,4.   a
,5.   c
,6.   b
,7.   a
,8.   b
,9.   a
,10.   b
,11.   b
,12.   c
,13.   b
,14.   b
,15.   c
,
,2019 TEST PAPER
,1.   b
,2.   b
,3.   b
,4.   b
,5.   a
,6.   d
,7.   b
,8.   c
,9.   c
,10.   a
,11.   a
,12.   d
,13.   a
,14. a
,15. b
,Appendix VIII Practice Questions on Indian Polity
,(General Studies—Prelims)
,1. The Chairman of which of the following parliamentary committees is
,invariably from the members of ruling party?
,(a) Committee on Public Undertakings
,(b) Public Accounts Committee
,(c) Estimates Committee
,(d) Committee on Delegated Legislation
,2. Which of the following is not a formally prescribed device available to the
,members of Parliament?
,(a) Question Hour
,(b) Zero Hour
,(c) Half-an-hour discussion
,(d) Short duration discussion
,3. Which of the following is exclusively a committee of the Lower House:
,(a) Committee on Assurances
,(b) Committee on Delegated Legislation
,(c) Committee on Public Undertakings
,(d) Estimates Committee
,4. Which one of the following devices calls the attention of minister towards a
,matter of public importance?
,(a) Half-an-hour discussion
,(b) Calling attention notice
,(c) Short duration discussion
,(d) Adjournment motion
,5. Central Vigilance Commission was set up on the recommendation of:
,(a) Administrative Reforms Commission of India
,(b) Gorwala Report
,(c) Kripalani Committee
,(d) Santhanam Committee
,6. The institution of Lokayukta was created for the first time by the state of:
,(a) Orissa
,b. Bihar
,(c) Punjab
,d. Maharashtra
,7. The correct statements about zero hour includes:
,1. It is the first hour of every sitting in both the houses of Parliament.
,2. It is mentioned in the Rules of Business of the houses of Parliament.
,"3. During this time, matters are raised without any prior notice."
,4. It is the time immediately following the Question Hour in both the houses
,of Parliament.
,5. It is an Indian innovation in parliamentary procedure since 1964.
,"(a) 2, 3 and 4"
,          (b) 3 and 4
,"(c) 1, 2 and 5"
,"(d) 2, 3 and 5"
,8.   The correct statements about calling attention notice are:
,1. It is a device of calling the attention of a minister to a matter of urgent
,public importance.
,2. Its main purpose is to seek an authoritative statement from the minister.
,3. It does not involve any censure against government.
,4. It is an Indian innovation in the parliamentary procedure since 1952.
,5. It is not mentioned in the Rules of Business and Procedure.
,"(a) 1, 2, 3 and 4"
,(b) 4 and 5
,"(c) 1, 2, 3 and 5"
,"(d) 1, 2 and 3"
,9.   Which of the following statements are true of Adjournment Motion?
,1. It is an extraordinary procedure which sets aside the normal business of
,the House.
,2. Its main object is to draw the attention of the House to a recent matter of
,urgent public importance.
,3. The Rajya Sabha can make use of this procedure.
,4. It must be supported by not less than 50 members for introduction.
,5. It involves an element of censure against government.
,"(a) 1, 2, 4 and 5"
,"(b) 2, 3 and 5"
,"(c) 2, 3 and 4"
,"(d) 1, 2 and 4"
,10.   Which of the following statements are incorrect about the difference
,between the writ jurisdiction of the Supreme Court and high courts in India?
,1. The Supreme Court can issue writs not only for the purpose of
,"enforcement of Fundamental Rights but also for any other purpose,"
,whereas high courts can issue writs only for the purpose of enforcement
,of Fundamental Rights.
,"2. High courts can issue the writ of Injunction, whereas the Supreme Court"
,cannot issue the writ of Injunction.
,"3. The Supreme Court can issue writs only in the case of appeal, whereas"
,high courts can issue writs only when the party directly approaches it.
,4. High courts can issue writs not only for the purpose of enforcement of
,"Fundamental Rights but also for any other purpose, whereas the"
,Supreme Court can issue writs only for the purpose of enforcement of
,Fundamental Rights.
,(a) 1 and 2
,"(b) 1, 2 and 3"
,(c) 2 and 3
,(d) 4 only
,"11.   No-confidence Motion, to be admitted in the Lok Sabha, needs the support"
,of:
,    (a) 80 Members
,(b) 140 Members
,(c) 160 Members
,(d) 50 Members
,12. Which of the following statements are incorrect about unstarred question?
,1. It is distinguished by an asterisk mark.
,2. Answer to such a question is given orally.
,3. Answer to such a question is not followed by supplementary questions.
,4. It does not carry an asterisk mark.
,5. Answer to such a question is given in a written form.
,(a) 2 and 3
,"(b) 3, 4 and 5"
,(c) 1 and 2
,"(d) 2, 3 and 4"
,Assertion (A) and Reason (R) Pattern
,Answer the following questions by using the codes given below.
,(a) Both A and R are true and R is the correct explanation of A.
,(b) Both A and R are true but R is not a correct explanation of A.
,(c) A is true but R is false.
,(d) A is false but R is true.
,13. Assertion: The writ jurisdiction of the Supreme Court and high courts in
,"India is same. Reason: Both, the Supreme Court and the High Court can"
,"issue the writs of Habeas Corpus, Mandamus, Prohibition, Certiorari and"
,Quo warranto.
,"14. Assertion: In democracy, the ultimate responsibility of administration is to"
,the people.
,Reason: The democratic government is based on the principle of popular
,sovereignty.
,
,Matching Pattern
,Match List-I with List-II and select correct answer by using the codes given
,below the lists.
,15.               List-I (Writs)                 List-II (Literal meanings)
,A. Mandamus                             1. “By what warrant or authority’
,B. Habeas Corpus                        2. “We command’
,C. Quo warranto                         3. “To be certified’
,D. Certiorari                           4. “You may have the body” or “To
,have the body of’
,Codes:        A     B     C   D
,(a)    2     3     4   1
,(b)    2     4     3   1
,(c)    1     4     2   3
,(d)    2     4     1   3
,16.              List-I (Provisions)                    List-II (Contained in)
,A. Writ jurisdiction of the Supreme      1.   Article 13
,Court                                 2.   Article 226
,B. Suits against government              3.   Article 300
,C. Writ jurisdiction of the High Court   4.   Article 32
,D. Source of the power of judicial       5.   Article 166
,review
,Codes:         A     B     C    D
,(a)     4     3     5    1
,(b)     3     4     2    5
,(c)     4     3     2    1
,(d)     5     4     3    2
,
,17. The final work of UPSC in recruitment process is:
,(a) Selection
,(b) Appointment
,(c) Certification
,(d) Placement
,18. The conditions of service of members of All-India Services are determined
,by:
,(a) President of India
,(b) Constitution of India
,(c) Parliament of India
,(d) Union Public Service Commission
,
,Assertion (A) and Reason (R) Pattern
,Answer the following questions by using the following codes.
,(a) Both A and R are true and R is the correct explanation of A.
,(b) Both A and R are true but R is not a correct explanation of A.
,(c) A is true but R is false.
,(d) A is false but R is true.
,19. Assertion: India has imposed severe restrictions on the political activities of
,civil servants.
,Reason: The civil servants in India enjoy the right to vote.
,20. Assertion: A member of All-India Service can appeal against the order of a
,State Government to the President of India.
,Reason: Article 311 of the Constitution says that a civil servant cannot be
,removed or dismissed by any authority which is subordinate to the authority
,by which he was appointed.
,21. The Vote on Account is passed:
,(a) After the voting of demands
,(b) Before the general discussion
,(c) After the general discussion
,(d) Either after the voting of the demands or after the general discussion.
,22. Arrange the following stages in the enactment of budget in proper order:
,1. General discussion
,2. Appropriation Bill
,3. Finance Bill
,4. Voting of the demands for grant
,5. Presentation to legislature
,"(a) 1, 2, 3, 4, 5"
,"(b) 5, 1, 4, 2, 3"
,"(c) 5, 1, 4, 3, 2"
,"(d) 5, 1, 3, 4, 2"
,23. Which of the following documents are presented to the legislature along
,with the budget?
,1. An explanatory memorandum on the budget
,2. A summary of demands for grants
,3. An Appropriation Bill
,4. A Finance Bill
,5. The economic survey
,"(a) 1, 3 and 5"
,"(b) 1, 2 and 3"
,"(c) 2, 3 and 5"
,"(d) 1, 2, 3 and 4"
,24. Which of the following is not a condition of admissibility of cut motions in
,the Parliament?
,(a) It should not make suggestions for the amendment of existing laws.
,(b) It should not relate to expenditure charged on the Consolidated Fund of
,India.
,(c) It should relate to more than one demand.
,(d) It should not raise a question of privilege.
,25. The ultimate responsibility of taking due action on the comments of the C &
,AG vests with:
,(a) President of India
,(b) Supreme Court
,(c) Parliament
,(d) National Development Council
,26. The word “Budget” is mentioned in which of the following Articles of the
,Constitution of India:
,(a) Art. 266
,(b) Art. 112
,(c) Art. 265
,(d) None
,27. Which of the following statements are incorrect?
,1. Rajya Sabha can reject a Money Bill.
,2. Rajya Sabha can make recommendations on a Money Bill.
,3. Rajya Sabha cannot reject a Money Bill.
,4. Rajya Sabha should return the Money Bill to the Lok Sabha within 14
,days.
,     5. Rajya Sabha can amend a Money Bill.
,"(a) 2, 3 and 4"
,"(b) 1, 2 and 5"
,(c) 1 and 5
,(d) only 1
,28. Which of the following expenditures are charged upon the Consolidated
,Fund of India?
,1. Allowances of the Chairman of Lok Sabha.
,2. Expenditure relating to the raising of loans and the service and
,redemption of debt.
,3. Pensions of the judges of High Courts.
,4. Any sum required to satisfy the award of any arbitration tribunal.
,5. Administrative expenses of the office of the Comptroller and
,AuditorGeneral
,(a) 2 and 5
,"(b) 1, 2 and 5"
,"(c) 2, 3 and 4"
,"(d) 1, 2, 3, 4 and 5"
,29. The correct statements about Public Account of India are:
,1. The public account is the fund to which all public moneys received by or
,on behalf of the government are credited.
,2. No legislative appropriation is required for payments from the Public
,Account of India.
,3. Legislative appropriation is required for payments from the Public
,Account of India.
,"4. All public moneys, other than those credited to the Consolidated Fund of"
,"India, which are received by or on behalf of the government are credited"
,to the Public Account of India.
,5. It is operated by executive action.
,"(a) 1, 2 and 5"
,"(b) 1, 3 and 5"
,"(c) 2, 4 and 5"
,(d) 2 and 4
,30. Which of the following statements are incorrect?
,1. Appropriation Bill cannot be amended while the Finance Bill can be
,amended.
,2. Finance Bill cannot be amended while Appropriation Bill can be
,amended.
,3. Same procedure governs both the Appropriation Bill and the Finance
,Bill.
,4. Appropriation Bill and the Finance Bill are governed by different
,procedures.
,5. Appropriation Bill cannot be rejected by the Rajya Sabha while Finance
,Bill can be rejected by it.
,(a) 2 and 4
,"(b) 2, 4 and 5"
,       (c) 1 and 3
,"(d) 1, 3 and 5"
,
,Matching Pattern
,Match List-I with List-II and select the correct answer by using the codes given
,below the lists.
,31.          List-I                                    List-II
,A. Token Cut Motion 1. “That the amount of the demand be reduced by
,B. Economy            Cut    a specified amount.”
,Motion                2. “That the amount of the demand be reduced by
,C. Policy Cut Motion         ‘1.”
,3. “That the amount of the demand be reduced by
,‘100.”
,4. “That the amount of the demand be reduced to
,‘1.”
,5. “That the amount of the demand be reduced to
,‘100.”
,Codes:         ABC
,(a)     512
,(b)     531
,(c)     314
,(d)     352
,32.               List-I (Terms)              List-II (Defined by)
,A. Consolidated Fund of India           1. Article 110
,B. Money Bill                           2. Article 267
,C. Annual Financial Statement           3. Article 266
,D. Contingency Fund of India            4. Article 265
,5. Article 112
,Codes:             A B C D
,(a)     4 1 5 3
,(b)     2 1 5 4
,(c)     4 1 5 2
,(d)     3 1 5 2
,
,
,Assertion (A) and Reason (R) Pattern
,Answer the following questions by using the codes given below.
,(a) Both A and R are true and R is the correct explanation of A.
,(b) Both A and R are true but R is not a correct explanation of A.
,(c) A is true but R is false.
,(d) A is false but R is true.
,33. Assertion: The budget makes a distinction between the expenditure
,“charged” on the Consolidated Fund of India and the expenditure “made”
,      from the Consolidated Fund of India.
,Reason: The expenditure “charged” on the Consolidated Fund of India is
,not subject to the vote of Parliament.
,34.    Assertion: No expenditure can be incurred without the approval of the
,"Parliament. Reason: Our democratic government, like that of Britain, is"
,based on the concept of sovereignty of the parliament.
,35.    Assertion: The Rajya Sabha has less powers in financial matters.
,Reason: The Lok Sabha alone votes the demands for grants.
,36.    Assertion: The expenditure “charged” on the Consolidated Fund of India is
,not subject to the vote of Parliament. Reason: It is in the nature of obligatory
,payment.
,37.    The Finance Commission does not recommend on:
,(a) The distribution of net proceeds of taxes between the union and the
,states.
,(b) The principles to be followed by the centre while giving grants-in-aid to
,the states out of the consolidated Fund of India.
,(c) The amount of money to be allocated to the states from Public Account
,of India.
,(d) Any other matter referred to the Commission by President in the interest
,of sound finance.
,38.    Which of the following statements about President’s ordinance-making
,power is not correct?
,(a) It is co-extensive with legislative power of Parliament.
,(b) Laid down in Article 123.
,(c) Shall cease to operate on expiry of six weeks from the reassembly of
,the Parliament.
,(d) Cannot be withdrawn at any time by the President.
,"39.    The salient features of the Government of India Act, 1935 are:"
,1. All India Federation
,2. Provincial Autonomy
,3. Dyarchy at the Centre
,4. Abolition of Dyarchy in the states
,(a) 1 and 2
,"(b) 1, 2 and 3"
,"(c) 2, 3 and 4"
,"(d) 1, 2, 3 and 4"
,40.    The accounts of the Union and of the States shall be kept in such form as
,prescribed by:
,(a) Finance Minister of India in consultation with CAG of India.
,(b) CAG of India with the approval of Planning Commission.
,(c) CAG of India with the approval of the President.
,(d) President of India in consultation with CAG of India
,41.    Which of the following acts introduced the principle of election in India?
,(a) Indian Councils Act of 1861
,(b) Indian Councils Act of 1892
,(c) Indian Councils Act of 1909
,      (d) Indian Councils Act of 1919
,42.    The features of Indian federal system are:
,1. Division of powers
,2. Separation of powers
,3. Independent judiciary
,4. Leadership of the Prime Minister
,5. A written Constitution
,"(a) 2, 3 and 5"
,"(b) 1, 4 and 5"
,"(c) 1, 2 and 5"
,"(d) 1, 3 and 5"
,43.    Which of the following is not correct about Finance Commission?
,(a) Constituted at the expiration of every fifth year.
,(b) Recommends the distribution of proceeds of taxes between Centre and
,states.
,(c) Consists of a Chairman and four other members.
,(d) Its advice is binding on the Government.
,44.    Which of the following is correctly matched?
,(a) 1909 Act – Principle of election
,(b) 1919 Act – Provincial autonomy
,(c) 1935 Act – Dyarchy in states
,(d) 1947 Act – Responsible government
,45.    The CAG of India can be removed from the office only in like manner and
,on like grounds as:
,(a) Chairman of the UPSC
,(b) Supreme Court Judge
,(c) Attorney General of India
,(d) Speaker of Lok Sabha
,46.    Statutory recognition to the portfolio system was accorded by:
,(a) Indian Councils Act of 1892
,(b) Indian Councils Act of 1871
,(c) Indian Councils Act of 1861
,(d) Indian Councils Act of 1882
,47.    Dyarchy was introduced by:
,(a) Indian Councils Act of 1909
,(b) Government of India Act of 1919
,(c) Government of India Act of 1935
,(d) Independence Act of 1947
,48.    Which of the following is not a feature of Government of India Act of 1935?
,(a) Dyarchy at the Centre
,(b) All-India Federation
,(c) Provincial autonomy
,(d) Dyarchy in the provinces
,"49.    Which one of the following amendments to the Constitutions, for the first"
,"time, made it obligatory for the President to act on the advice of the council"
,of ministers?
,      (a) 24th amendment
,(b) 42nd amendment
,(c) 44th amendment
,(d) 54th amendment
,50.    The Indian federation is based on the pattern of:
,(a) Switzerland
,(b) USA
,(c) Russia
,(d) Canada
,51.    Who said the “Indian Constitution established a unitary state with subsidiary
,federal features rather than federal state with subsidiary unitary features?”
,(a) Granville Austin
,(b) Ivor Jennings
,(c) B.R. Ambedkar
,(d) K.C. Wheare
,52.    Which of the following are not correct about CAG of India?
,1. He is appointed by the President for a period of five years.
,2. His salary and conditions of service are determined by President.
,3. He shall vacate office on attaining the age of 60 years.
,4. He can be removed by the President on his own.
,5. He is responsible for maintaining the accounts of Central and state
,governments.
,"(a) 1, 4 and 5"
,"(b) 2, 3 and 4"
,"(c) 1, 2, 3, 4 and 5"
,"(d) 3, 4 and 5"
,53.    Which of the following are correct about Vice Chairperson of NITI Aayog?
,1. He is appointed by the President.
,2. He enjoys the status of a Cabinet-rank minister.
,3. He is a member of the Union cabinet.
,4. He attends Cabinet meetings as a special invitee.
,5. He is the de facto executive head of the Aayog.
,"(a) 1, 2, 4 and 5"
,"(b) 2, 3, 4 and 5"
,"(c) 2, 4 and 5"
,"(d) 1, 2, 3 and 5"
,53.    The correct statements about the Directive Principles of State Policy are:
,1. They are borrowed from the Irish Constitution.
,2. They are incorporated in Part V of the Constitution.
,3. They seek to provide social and economic base to democracy.
,4. The state must compulsorily implement them.
,5. All of them are Gandhian in nature.
,"(a) 1, 2, 3 and 5"
,"(b) 1, 3 and 5"
,"(c) 1, 3, 4 and 5"
,(d) 1 and 3
,55. The Governor-General of Bengal became the Governor-General of India
,by:
,(a) Government of India Act of 1858
,(b) Indian Councils Act of 1861
,(c) Pitts India Act of 1784
,(d) Charter Act of 1833
,56. Which is incorrectly matched?
,(a) Prohibition of Discrimination— Article 15
,(b) Right to Association—Article 19.
,(c) Right to Protection of Life—Article 20.
,(d) Right to Constitutional Remedies— Article 32.
,57. Who characterises Indian Union as “a federation with a centralising
,tendency?”
,(a) B.R. Ambedkar
,(b) K.C. Wheare
,(c) Ivor Jennings
,(d) Granville Austin
,58. Which act provided for direct control of Indian affairs by the British
,Government?
,(a) Charter Act of 1858
,(b) Regulating Act of 1773
,(c) Pitts India Act of 1784
,(d) Charter Act of 1833
,59. The correct statements about Fundamental Rights are:
,1. They are enforceable in the court of law.
,2. These rights are absolute.
,"3. They can be suspended during national emergency, except some."
,4. They are available only to Indian citizens.
,5. They are contained in Part IV of the Constitution.
,"(a) 1, 3, 4 and 5"
,"(b) 1, 2, 3 and 5"
,(c) 1 and 3
,"(d) 1, 3 and 5"
,60. The words ‘socialist’ and ‘secular’ were added to the Preamble by:
,(a) 41st amendment
,(b) 44th amendment
,(c) 46th amendment
,(d) 42nd amendment
,61. No demand for a grant is to be made except on the recommendation of:
,(a) Prime Minister
,(b) President
,(c) Finance Minister
,(d) Comptroller and Auditor-General
,62. The features of Government of India Act of 1858 includes:
,1. Replacement of Company rule by the Crown rule.
,2. Establishment of a Board of Control over the Court of Directors.
,       3. Reaffirmation of the system of open competition.
,4. Separating the legislative and executive functions of the Governor-
,General.
,5. Creation of a new office of the Secretary of State for India.
,"(a) 1, 3 and 4"
,"(b) 1, 2 and 4"
,(c) 1 and 5
,"(d) 1, 3 and 5"
,63.   Which of the following are not the federal features of Indian Constitution?
,1. Supremacy of Constitution
,2. All-India services
,3. Single citizenship
,4. Independent judiciary
,5. Bicameral legislature
,6. Integrated judiciary
,"(a) 1, 4 and 5"
,"(b) 1, 5 and 6"
,"(c) 2, 3 and 6"
,"(d) 2, 3 and 4"
,64.   The features of Indian parliamentary system are:
,1. Independent judiciary.
,2. Collective responsibility of the executive to the legislature.
,3. A written Constitution.
,4. Presence of de jure and de facto executives.
,5. Individual responsibility of the executive to the legislature.
,"(a) 2, 3 and 4"
,"(b) 1, 2 and 4"
,"(c) 2, 4 and 5"
,"(d) 1, 2, 4 and 5"
,65.   The President of India is elected by an electoral college consisting of:
,(a) Members of Parliament and state legislatures
,(b) Elected members of Parliament and state legislatures
,(c) Elected members of Parliament and state legislative assemblies
,(d) Elected members of Lok Sabha and members of Rajya Sabha and state
,Legislative Assemblies
,66.   Which of the following acts laid the foundation of Central administration?
,(a) Charter Act of 1833
,(b) Regulating Act of 1773
,(c) Charter Act of 1853
,(d) Pitts India Act of 1784
,
,Matching Pattern
,Match List I with List II and select the correct answers by using codes given
,below the lists.
,67.               List-I                             List-II
,      A.   Bicameral system                 1.   Government of India Act of 1935
,B.   Legislative devolution           2.   Indian Councils Act of 1861
,C.   Separate electorate              3.   Montagu-Chelmsford Reforms
,D.   Provincial autonomy              4.   Indian Councils Act of 1892
,5.   Minto-Morely Reforms.
,Codes:             A B C D
,(a)    5 2 3 1
,(b)    3 4 5 1
,(c)    3 2 5 1
,(d)    5 4 3 1
,68.                        List-I                                    List-II
,A.   Equality in Public employment                  1.   Article 29
,B.   Minorities rights                              2.   Article 21
,C.   Right to personal liberty                      3.   Article 23
,D.   Right against exploitation                     4.   Article 16
,5.   Article 25
,Codes:            A     B   C        D
,(a)     5     2   3        1
,(b)     3     4   5        1
,(c)     3     2   5        1
,(d)     5     4   3        1
,69.                     List-I                                        List-II
,A. Withholding of assent                            1.   Qualified veto
,B. Overridden by an ordinary majority               2.   Pocket veto
,C. Taking no action on the bill                     3.   Absolute veto
,D. Overriden by a higher majority                   4.   Suspensive veto
,5.   Majority veto
,Codes:               A   B   C        D
,(a)      3   4   2        1
,(b)      4   3   2        5
,(c)      5   3   1        2
,(d)      3   4   2        1
,70.                    List-I                                         List-II
,A.   Third Schedule                            1.   Allocation of seats in Upper
,B.   Ninth Schedule                                 House
,C.   Fourth Schedule                           2.   Disqualification on Grounds of
,D.   Tenth Schedule                                 defection
,3.   Validation of certain acts
,4.   Languages
,5.   Forms of affirmations
,Codes:               A   B   C   D
,(a)     5   2   3   1
,                     (b)    3   4   5   1
,(c)    3   2   5   1
,(d)    5   4   3   1
,
,
,Assertion (A) and Reason (R) Pattern
,Answer the following questions by using the codes given below.
,(a) Both A and R are true and R is the correct explanation of A.
,(b) Both A and R are true but R is not a correct explanation of A.
,(c) A is true but R is false.
,(d) A is false but R is true.
,71. Assertion: India has adopted the parliamentary form of government.
,Reason: The President is the titular head of the state while the council of
,ministers headed by the Prime Minister is the real executive authority.
,"72. Assertion: A person who holds, or who has held, office as President shall"
,not be eligible for re-election to that office. Reason: No person shall be
,eligible for election as a President unless he is qualified for election as a
,member of the House of People.
,73. Assertion: All doubts and disputes arising out of or in connection with the
,election of a President or Vice-President shall be inquired into and decided
,by the Supreme Court whose decision shall be final. Reason: Parliament
,"may, by law, regulate any matter relating to or connected with the election of"
,a President or a VicePresident.
,75. The Central Administrative Tribunal deals with:
,(a) Recruitment matters
,(b) Promotion matters
,(c) Disciplinary matters
,(d) Recruitment and all service matters
,76. Which of the following can provide for the appointment of a Joint Public
,Service Commission?
,(a) President of India
,(b) Parliament of India
,(c) UPSC
,(d) State Governors
,77. The origins of UPSC can be traced to:
,(a) 1909 Act
,(b) 1919 Act
,(c) 1930 Act
,(d) 1947 Act
,78. The functions of the UPSC can be extended by:
,(a) President
,(b) Prime Minister
,(c) Ministry of Personnel
,(d) Parliament
,"79. The personnel system of any local authority, corporate body or public"
,institution can be placed within the jurisdiction of the UPSC by:
,(a) President of India
,(b) Central Ministry of Personnel
,(c) Parliament
,(d) Supreme Court
,80. The Chairman and members of the UPSC hold office for a term of:
,(a) Three years
,(b) Four years
,(c) Five years
,(d) Six years
,81. Who is regarded as the “Father of All-India Services?”
,(a) Lord Macaulay
,(b) Lord Cornwallis
,(c) B.R. Ambedkar
,(d) Sardar Patel
,82. A Joint Public Service Commission can be created by:
,(a) An order of the President
,(b) A resolution of the Rajya Sabha
,(c) An act of Parliament
,(d) A resolution of the concerned state legislatures
,82. Which of the following statements are correct?
,1. The Constitution does not fix the number of members of the UPSC.
,2. One-half of the members of the UPSC should be persons who have
,held office under the Government of India or of a state at least for five
,years.
,3. The Chairman and members of the UPSC hold office for a term of five
,years or until they attain the age of 60 years.
,4. The salaries and allowances of the members of the UPSC are
,determined by the Parliament.
,5. The entire expanses of UPSC are charged on the Consolidated Fund of
,India.
,"(a) 2, 4 and 5"
,(b) 1 and 5
,"(c) 2, 3 and 4"
,"(d) 1, 4 and 5"
,84. Which of the following statements related to the Central Administrative
,Tribunal are correct?
,1. It is a statutory body.
,2. Its members are drawn from administrative background only.
,3. It is not bound by the procedure prescribed in the code of civil
,procedure.
,4. Its jurisdiction covers the members of All India Services as well as
,Central Services and Central Government posts.
,5. It was setup in 1985.
,"(a) 2, 3 and 5"
,       (b) 1 and 4
,"(c) 1, 3, 4 and 5"
,(d) 2 and 3
,
,Assertion (A) and Reason (R) Pattern
,Answer the following questions by using the codes given below
,(a) Both A and R are true and R is the correct explanation of A.
,(b) Both A and R are true but R is not the correct explanation of A.
,(c) A is true but R is false.
,(d) A is false but R is true.
,85. Assertion: All-India Services are instruments of national integration.
,Reason: Its members are appointed by President of India.
,86. Assertion: Chairman and members of the UPSC are appointed by
,President. Reason: The UPSC is a constitutional body.
,87. Assertion: The salaries of the members of the UPSC cannot be changed to
,their disadvantage during their tenure. Reason: The independence of the
,Public Service Commission has to be maintained.
,88. Assertion: The Constitution has not fixed the number of members of the
,UPSC.
,Reason: The Chairman and members of the UPSC are appointed by
,President.
,89. Which of the following statements are true about the Governor of a state?
,1. The executive power of the state is vested in him.
,2. He must have attained 35 years of age.
,3. He holds office during the pleasure of the President.
,4. The grounds for his removal are laid down in the Constitution.
,"(a) 1, 2, and 4"
,"(b) 1, 2 and 3"
,"(c) 1, 3 and 4"
,"(d) 1, 2, 3 and 4"
,90. The recommendations of the Ashok Mehta Committee on Panchayati Raj
,are:
,1. Creation of a two-tier system
,2. Reservation of seats for SCs and STs
,3. Compulsory powers of taxation to Panchayati Raj institutions
,4. Open participation of political parties in Panchayati Raj affairs
,"5. If superceded, elections must be held within one year"
,"(a) 1, 3 and 4"
,"(b) 1, 2, 4 and 5"
,"(c) 1, 2, 3 and 4"
,"(d) 1, 3, 4 and 5"
,91. District Judges are appointed by:
,(a) The Chief Justice of High Court
,(b) The State Public Service Commission
,(c) The Chief Minister of state
,      (d) The Governor of state
,92.   Money bill can be introduced in the state legislature only on the
,recommendation of:
,(a) Speaker
,(b) Finance Minister
,(c) Chief Minister
,(d) Governor
,"93.   According to the Balwantray Mehta Committee, the District Collector should"
,be:
,(a) Kept out of the Zila Parishad
,(b) A non-voting member of the Zila Parishad
,(c) A member of the Zila Parishad with the right to vote
,(d) The Chairman of the Zila Parishad
,94.   The Balwantray Mehta Committee was a committee on:
,(a) Democratic-decentralisation
,(b) Panchayati Raj institutions
,(c) Administrative arrangements for rural development
,(d) Community development programme
,95.   Panchayati Raj form of rural local government was adopted first by (in the
,order):
,(a) Rajasthan and Madhya Pradesh
,(b) Andhra Pradesh and West Bengal
,(c) Rajashtan and Andhra Pradesh
,(d) Andhra Pradesh and Rajasthan
,96.   The District and sessions Judge works directly under the control of:
,(a) District Collector
,(b) Governor of the state
,(c) Law Minister of the state
,(d) High Court of the state
,97.   Which of the following is a committee on Panchayati Raj institutions?
,(a) Balwantray Mehta Committee
,(b) G.V.K. Rao Committee
,(c) L.M. Singhvi Committee
,(d) Ashok Mehta Committee
,98.   “The state shall take steps to organise village Panchayats and endow them
,with such powers as may be necessary to enable them to function as units
,of self-government.” This provision is mentioned in:
,(a) Part I of the Constitution
,(b) Part IV-A of the Constitution
,(c) Part III of the Constitution
,(d) Part IV of the Constitution
,99.   A President’s rule can be imposed in a state under the provisions of:
,1. Article 356 2. Article 360
,3. Article 352
,4. Article 365
,(a) only 1
,            (b) 1 and 3
,(c) 1 and 4
,(d) 1 and 2
,100.    Which of the following Constitutional Amendment act provided for the
,appointment of the same person as Governor for two or more states?
,(a) 4th Amendment
,(b) 7th Amendment
,(c) 11th Amendment
,(d) 24th Amendment
,101.    Article 154 states that the Governor can exercise his executive authority
,either directly or through officers subordinate to him. The word subordinates
,includes:
,(a) All the ministers and the Chief Minister
,(b) All the ministers except the Chief Minister
,(c) Only the Chief Minister and the Deputy Chief Minister
,(d) Only the Cabinet Ministers
,"102.    In the event of declaration of constitutional emergency in the state, the"
,President can:
,1. Assume to himself all the functions of the state government including
,the High Court.
,2. Declare that the powers of the state legislature shall be exercisable
,under the authority of the Governor.
,3. Assume to himself all the functions of the state government except the
,High Court.
,4. Declare that the powers of the state legislature shall be exercisable
,under the authority of the parliament.
,"Of the above, the correct statements are:"
,(a) 1 and 2
,(b) 2 and 3
,(c) 3 and 4
,(d) 1 and 4
,103.    The correct statements about ordinance making power of the Governor are:
,1. It is laid down in Article 213.
,2. It can be issued by him after the advice of the President or state council
,of ministers.
,3. It is co-extensive with the legislative power of the state legislature.
,4. It can be issued only during the recess of State Legislative Assembly
,and not the Legislative Council.
,5. It can not be withdrawn by him anytime.
,"(a) 2, 3 and 4"
,"(b) 1, 3 and 5"
,"(c) 1, 2 and 3"
,"(d) 2, 4 and 5"
,104.    Panchayati Raj is a system of:
,(a) Local government
,(b) Local administration
,     (c) Local self-government
,(d) Rural local self-government
,105. Which of the following are the features of 74th Amendment Act on
,municipalities?
,1. Reservation of seats for SCs and STs in proportion of their population
,(to the total population) in municipal Area.
,2. Mandatory periodic elections every 5 years.
,3. The procedure for maintenance of accounts and audit would be decided
,by the State Governor.
,4. Constitution of Nagar Panchayats for smaller urban area.
,"5. One-third of the seats shall be reserved for women, excluding the"
,number of seats reserved for SC and ST women.
,"(a) 1, 2 and 4"
,"(b) 2, 3 and 5"
,"(c) 3, 4 and 5"
,(d) 1 and 2
,
,Assertion (A) and Reason (R) Pattern
,Answer the following questions by using the codes given below:
,(a) Both A and R are true and R is the correct explanation of A.
,(b) Both A and R are true but R is not a correct explanation of A.
,(c) A is true but R is false.
,(d) A is false but R is true.
,"106. Assertion: Under the Constitution, the Chief Minister holds office till the"
,pleasure of the Governor.
,Reason: The Chief Minister is appointed by the Governor.
,107. Assertion: Lord Ripon’s Resolution of 1882 was hailed as the ‘Magna
,Carta’ of local government.
,Reason: Lord Ripon is regarded as the ‘father of local self-government in
,India.’
,108. Assertion: The 73rd amendment to the Constitution gives a constitutional
,status to the Gram Sabha.
,Reason: The Balvantray Mehta Committee report made a formal mention of
,the Gram Sabha.
,110. Assertion: The Governor shall hold office during the pleasure of the
,President. Reason: The Governor of a state shall be appointed by the
,President India.
,
,Matching Pattern
,Match List-I with List-II and select the correct answer by using the codes given
,below the lists.
,111.               List-I                          List-II
,A. Deliberative organisation        1. Commissioner
,B. Formal head                      2. Standing Committee
,        C. Management                                 3. Mayor
,D. Executive body                             4. Council
,Codes:         A       B    C       D
,(a)   4       2    3       1
,(b)   3       2    1       4
,(c)   2       3    1       4
,(d)   4       3    2       1
,112.                 List-I (States)                             List-II (Governor’s special
,responsibilities)
,A.   Madhya Pradesh                                  1.   Law and order
,B.   Gujarat                                         2.   Administration of tribal areas
,C.   Nagaland                                        3.   Development of backward
,D.   Assam                                                areas
,4.   Minister for Tribal Welfare
,5.   Hill Areas Committee working
,Codes:               A       B       C    D
,(a)     3       4       2    5
,(b)     2       1       4    3
,(c)     4       3       1    2
,(d)     5       3       2    4
,113.         List-I                                       List-II (Setup on)
,(Committees)
,A. G.V.K.    Rao        1. Panchayati Raj institutions
,Committee            2. Revitalisation of PRIs for democracy and
,B. Balvantray              development
,Mehta                3. Existing administrative arrangements for Rural
,Committee               Development       and       Poverty   Alleviation
,C. L.M. Singhvi            Programmes.
,Committee            4. Community      Development     Programme     and
,D. Ashok Mehta             National Extension Service.
,Committee            5. Panchayati Raj elections
,Codes: A B C D
,(a)     4312
,(b)     4321
,(c)     3421
,(d)     3412
,
,114. The Governor of a state:
,"1. Possesses executive, legislative and judicial powers analogous to the"
,President.
,2. Has to act with the aid and advice of the council of ministers always.
,3. Has the power to appoint and remove the members of State Public
,Service Commission.
,        4. Has the power to allocate business of the government among the
,various ministers.
,"Of the above, the correct statements are:"
,(a) 1 and 2
,"(b) 2, 3 and 4"
,(c) 1 and 4
,"(d) 1, 3 and 4"
,115.   The Constitution says that the state council of ministers hold office during
,the pleasure of the Governor. The words “during the pleasure of the
,Governor” in reality means:
,(a) Pleasure of the President
,(b) Pleasure of the Prime Minister
,(c) Pleasure of the Chief Minister
,(d) Pleasure of the Legislative Assembly
,116.   The term “Cabinet” is mentioned in which of the following articles of the
,Constitution?
,(a) Article 74
,(b) Article 75
,(c) Article 352
,(d) Not mentioned in the Constitution
,117.   Which of the following statements with regard to the CAG are correct?
,1. He is responsible only to the Parliament.
,2. He certifies the net proceeds of any tax.
,3. He compiles and maintains the accounts of state governments.
,4. He has control over the issue of money from the Consolidated Fund of
,India.
,(a) 2 and 4
,"(b) 1, 3 and 4"
,"(c) 1, 2 and 3"
,"(d) 2, 3 and 4"
,118.   Which of the following statements are correct about the difference between
,a censure motion and a no-confidence motion?
,1. A censure motion should state the reasons for its adoption whereas a
,no-confidence motion need not state the reasons for its adoption.
,2. A no-confidence motion can be moved only against the council of
,"ministers, whereas a censure motion can be moved against the council"
,of ministers or an individual minister or a group of ministers.
,"3. The Government must resign if a noconfidence motion is passed,"
,whereas the Government need not resign if a censure motion is passed.
,"4. A censure motion can be moved in both, the Lok Sabha and the Rajya"
,"Sabha, whereas no-confidence motion can be moved only in the Lok"
,Sabha.
,"(a) 1, 3 and 4"
,"(b) 2, 3 and 4"
,"(c) 2, 3 and 4"
,"(d) 1, 2 and 3"
,119. The first Lokpal Bill was introduced in the Parliament in:
,(a) 1971
,(b) 1967
,(c) 1968
,(d) 1972
,120. The Central Vigilance Commission was set up by:
,(a) Constitutional provision
,(b) Act of the Parliament
,(c) Resolution of the Santhanam Committee
,(d) Executive resolution
,121. The functions of Estimates Committee include:
,1. To suggest alternative policies in order to bring out efficiency and
,economy in administration.
,2. To see that the expenditure conforms to the authority which governs it.
,3. To examine whether the money is well laid out within the limits of the
,policy implied in the estimates.
,4. To suggest the form in which estimates shall be presented to the
,Parliament.
,"Of the above, the correct statements are:"
,(a) 1 and 2
,"(b) 1, 3 and 4"
,"(c) 1, 2 and 4"
,"(d) 1, 2, 3 and 4"
,122. The recommendations of Balwantray Mehta Committee includes:
,1. Open participation of political parties in Panchayati Raj affairs.
,2. Genuine transfer of power and responsibility to the Panchayati Raj
,institutions.
,3. Constitutional protection for Panchayati Raj.
,4. District Collector should be the Chairman of the Zila Parishad.
,5. Panchayat Samiti to be the executive body.
,"(a) 1, 2 and 5"
,"(b) 2, 4 and 5"
,"(c) 2, 3 and 4"
,"(d) 1, 3 and 4"
,123. Which of the following statements is incorrect?
,(a) Adjournment means an interruption in normal business of the Assembly.
,(b) Prorogation means the end of the Assembly.
,(c) Dissolution means the end of the Assembly.
,(d) Proroagation means end of a session of the Assembly.
,124. Which of the following are the compulsory provisions of the 73rd
,Amendment Act on Panchayati Raj?
,1. Indirect elections of the chairpersons of Panchayats at the intermediate
,and district levels.
,2. Fresh elections within six months in case of dissolution.
,3. Provision for reservation of seats for backward classes.
,4. Giving representation to MPs and MLAs in Panchayats.
,"         (a) 1, 3 and 4"
,(b) 2 and 4
,(c) 1 and 2
,"(d) 2, 3 and 4"
,125. Consider the following statements about municipal corporations:
,1. They are established in the states by the acts of the concerned state
,legislatures.
,2. They are established in the union territories by an order of the Chief
,Administrator.
,3. They work under direct control and supervision of state governments.
,4. Their deliberative functions are separated from the executive functions.
,"Of the above, the correct statements are:"
,(a) 1 and 3
,"(b) 1, 3 and 4"
,"(c) 1, 2 and 3"
,"(d) 1, 2, 3 and 4"
,126. Which of the following is not correct about a cantonment board?
,(a) It is created by an executive resolution.
,(b) It works under the administrative control of the Union Defence Ministry.
,(c) It is established for municipal administration for civilian population in the
,cantonment area.
,(d) It is a statutory body.
,"127. Under which of the following conditions, the UPSC can serve the needs of"
,a state?
,1. When requested by the President
,2. When requested by the Governor
,3. With the approval of Parliament
,4. With the approval of President
,5. With the approval of the concerned sate legislature.
,(a) 1 and 3
,(b) 2 and 5
,(c) 2 and 4
,(d) 1 and 5
,
,Assertion (A) and Reason (R) Pattern
,Answer the following questions by using the codes given below:
,(a) Both A and R are true and R is the correct explanation of A.
,(b) Both A and R are true but R is not a correct explanation of A.
,(c) A is true but R is false.
,(d) A is false but R is true.
,128. Assertion: A minister at the Central level can be dismissed by the Prime
,Minister.
,Reason: A minister is appointed by President only on the advice of Prime
,Minister.
,129. Assertion: The Finance Commission facilitates the maintenance of financial
,balance between the Union and the states in the Indian federal system.
,Reason: The Constitution of India has given more financial powers to the
,Union Government.
,131. Assertion: The Governor is dejure head of state administration.
,Reason: The Chief Minister is de-facto head of state administration.
,132. Assertion: The Rajya Sabha has no power to vote on the demands-for-
,grants.
,Reason: A money bill or finance bill dealing with taxation cannot be
,introduced in the Rajya Sabha.
,
,Matching Pattern
,Match List-I with List-II and select the correct answer by using the codes given
,below.
,133.                     List-I (Meaning of writs)                  List-II (Name
,of writs)
,A. It is a command issued by the court to a public official 1. Injunction
,asking him to perform his official duties.
,B. It is issued by a higher court to a lower court when the 2. Mandamu
,latter exceeds its jurisdiction.                               s
,C. It is issued by the courts to enquire into the legality of 3. Certiorari
,claim of a person to a public office.
,D. It is issued by the court asking a person do a thing or 4. Prohibitio
,refrain from doing a thing                                     n
,5. Quo-
,warranto
,Codes:                            A      B   C      D
,(a)   3      4   5      1
,(b)   5      3   4      2
,(c)   2      4   5      1
,(d)   4      5   2      3
,134.    List-I (Committees)                    List-II (Function)
,A. Public     Accounts 1. Examines whether the promises made by the
,Committee              ministers on the floor of the house have been
,fulfilled.
,B. Committee        on 2. Examines the CAG’s report on the
,Subordinate            appropriation accounts and ascertains
,Legislation            whether the funds voted by Parliament are
,spent within the scope of the demand.
,C. Committee        on 3. Examines whether the powers to make rules
,Public                 and regulations delegated by the Parliament
,Undertakings           are properly exercised by the executive.
,D. Committee        on 4. Examines the reports and accounts of the
,          Government                     public undertakings and finds out whether
,Assurances.                    their affairs are being managed in accordance
,with sound business principles and prudent
,commercial practices.
,Codes:     A   B   C   D
,(a)     4   3   1   2
,(b)     2   3   4   1
,(c)     1   4   3   2
,(d)     2   4   1   3
,135.          List-I                                         List-II
,A. Token grant               1.   It is granted for meeting an unexpected
,demand whose details cannot be stated.
,B. Exceptional grant         2.   It is voted by the Lok Sabha before the end of
,the financial year.
,C. Vote of credit            3.   It is voted by the Lok Sabha after the end of
,the financial year.
,D. Excess grant              4.   It forms no part of the current service of any
,financial year.
,5.   It is granted when funds to meet proposed
,expenditure on a new service can be made
,available by reappropriation.
,Codes:     A   B   C   D
,(a)     4   3   5   2
,(b)     5   4   1   3
,(c)     3   4   2   1
,(d)     5   3   1   4
,136. List-I (Schedules in the                 List-II (Provisions)
,Constitution)
,A. Sixth Schedule        1. Administration and control of scheduled
,areas and scheduled tribes.
,B. Second Schedule       2. Administration of tribal areas in states of
,"Assam, Meghalya, Tripura and Mizoram."
,C. Twelfth Schedule      3. Provisions as to the Speaker and Deputy
,Speaker of state Legislative Assemblies.
,"D. Fifth Schedule        4. Powers, authority and responsibilities of"
,municipalities.
,"5. Powers, authority and responsibilities of"
,Panchayats.
,Codes: A B C D
,(a)   1 3 4 2
,(b)   1 2 5 3
,            (c)    2 3 4 1
,(d)    2 3 5 1
,
,137. The most important Legislative power of the Governor is:
,(a) Nominating members to the state legislature.
,(b) Issuing ordinances
,(c) Assenting bills passed by the state legislature
,(d) Dissolving the state legislative Assembly
,138. Assertion: The Chief Minister is the channel of communication between the
,Governor and the council of ministers. Reason: The Chief Minister is the
,head of the state council of ministers.
,Select the correct code:
,(a) Both A and R are true and R is the correct explanation of A.
,(b) Both A and R are true but R is not a correct explanation of A.
,(c) A is true but R is false.
,(d) A is false but R is true.
,139. Which of the following are the voluntary provisions of the 73rd Amendment
,Act on Panchayati Raj?
,1. Making provision for reservation to the backward classes.
,2. Authorising the Panchayats to prepare plans for economic development.
,3. Organisation of Gram Sabhas.
,"4. Conferring financial powers on Pan-chayats with regard to taxes, fees"
,and so on.
,5. Setting up of a State Election Commission to conduct elections to the
,Panchayats.
,"(a) 1, 2, 3 and 4"
,"(b) 1, 2 and 5"
,"(c) 1, 2 and 4"
,"(d) 1, 2, 4 and 5"
,140. Assertion: The UPSC’s function is not to decide but to advise.
,Reason: UPSC is a constitutional body Select the correct code:
,(a) Both A and R are true and R is the correct explanation of A.
,(b) Both A and R are true but R is not a correct explanation of A.
,(c) A is true but R is false.
,(d) A is false but R is true.
,141. Which of the following are true of the Central Administrative Tribunal?
,1. It was established under the provisions of Article 312-A of the
,Constitution.
,2. It was set up by an order of the President of India.
,3. It was set up in 1985
,4. It was set up by an Act of Parliament.
,"(a) 1, 2 and 3"
,"(b) 1, 3 and 4"
,(c) 3 and 4
,"(d) 2, 3 and 4"
,"142. If any question arises as to the age of a judge of a High Court, the question"
,shall be decided by the President after consultation with:
,(a) The Chief Justice of the concerned High Court
,(b) The Governor of the concerned state
,(c) The Attorney-General of India
,(d) The Chief Justice of India
,143. The need for a separate parliamentary committee on public undertakings
,was first visualised by:
,(a) Ashok Mehta
,(b) G.V. Mavalankar
,(c) Lanka Sundaram
,(d) Krishna Menon Committee
,144. Assertion: Parliamentary control over public expenditure is diminished by
,the creation of the Contingency Fund of India. Reason: The Contingency
,Fund of India is operated by the President of India. Select the correct code:
,(a) Both A and R are true and R is the correct explanation of A.
,(b) Both A and R are true but R is not a correct explanation of A.
,(c) A is true but R is false.
,(d) A is false but R is true.
,145. Which of the following pairs are incorrectly matched?
,1. Vote on       — To allow enough time for legislative scrutiny and
,account            discussion of the budget.
,2. Charged       — Not submitted to the Parliament.
,items
,3. Vote of       — Blanck cheque given to the executive.
,credit
,4. Excess        — Submitted directly to the Lok Sabha for its approval
,grant
,(a) 1 and 3
,"(b) 1, 2 and 4"
,(c) 2 and 4
,(d) 3 and 4
,146. Which of the following expenditures are charged on the Consolidated Fund
,of India?
,1. Salaries of the Supreme Court judges
,2. Pensions of the Chairman of UPSC
,3. Debt charges for which the Government of India is liable
,4. Emoluments and allowances of the Prime Minister
,"(a) 1, 2 and 3"
,"(b) 1, 2, 3 and 4"
,"(c) 1, 3 and 4"
,"(d) 1, 2 and 4"
,147. Which of the following are the functions of the Public Accounts Committee
,of Parliament?
,"        1. To examine, in the light of CAG’s report, the accounts showing the"
,appropriation of sums granted by the Parliament.
,"2. To examine, in the light of CAG’s report, the statement of accounts of"
,"state corporations, trading and manufacturing projects except of those"
,as are allotted to the committee on public undertakings.
,3. To examine the statement of accounts of autonomous and semi-
,"autonomous bodies, the audit of which is conducted by the CAG."
,4. To examine if any money has been spent on any service during a
,financial year in excess of the amount granted by house of people for
,that purpose.
,"(a) 1, 2 and 4"
,"(b) 1, 2, 3 and 4"
,"(c) 1, 2 and 3"
,"(d) 1, 3 and 4"
,148.   Assertion: The device of Adjournment Motion is not used by the Rajya
,Sabha. Reason: An Adjournment Motion does not result in removing the
,Government from office.
,Select the correct code:
,(a) Both A and R are true and R is the correct explanation of A.
,(b) Both A and R are true but R is not the correct explanation of A.
,(c) A is true but R is false.
,(d) A is false but R is true.
,149.   Which of the following are true of Central Vigilance Commission?
,1. It was set up in 1964.
,2. It is a statutory body.
,3. Its functions are advisory in the same sense as those of UPSC.
,4. Its mode of receiving complaints is similar to that of the Parliamentary
,Commissioner for Administration in UK.
,"(a) 1, 2, 3 and 4"
,"(b) 1, 3 and 4"
,"(c) 1, 2 and 3"
,(d) 1 and 3
,150.   Which of the following statements related to UPSC are correct?
,1. It derives its functions only from the Constitution.
,2. It is not consulted on matters related to the reservation of posts for the
,"BCs, SCs and STs."
,"3. The President can exclude posts, services and matters from the purview"
,of consultation with UPSC.
,"4. The President can place the personnel system of any local authority,"
,corporate body or public institution within the jurisdiction of UPSC.
,(a) 2 and 3
,"(b) 1, 2 and 3"
,"(c) 2, 3 and 4"
,"(d) 1, 2 and 4"
,151.   The executive officer of the cantonment board is appointed by the:
,(a) President of the board
,       (b) Defence Secretary
,(c) Chief Secretary of the state
,(d) President of India
,152.   The correct statements about municipalities include:
,1. They are known by various other names in different states.
,2. They are controlled by the state governments.
,3. Vesting of the executive authority in the Chairman.
,4. They are statutory bodies.
,"(a) 1, 2 and 4"
,"(b) 1, 2, 3 and 4"
,(c) 1 and 2
,"(d) 1, 2 and 3"
,153.   Who/which of the following can abolish a State Legislative Council.
,(a) Parliament
,(b) President
,(c) Governor
,(d) State Assembly
,"154.   In which of the following recommendations, the Ashok Mehta Committee"
,differed from Balwantray Mehta Committee?
,1. Two-tier system of Panchayati Raj.
,2. Official participation of politicalparties at all levels of Panchayat
,elections.
,3. Zila Parishad as the executive body.
,4. Entrusting development functions to the Zila Parishad.
,"(a) 1, 2 and 4"
,"(b) 1, 2 and 3"
,(c) 1 and 2
,"(d) 1, 3 and 4"
,"155.   Under which of the following circumstances, the Governor can reserve a"
,state bill for the consideration of the President?
,1. If it is ultra vires.
,2. If it is opposed to the Directive Principles of State Policy.
,3. If it endangers the position of the state High Court.
,4. If it is dealing with the compulsory acquisition of property under Article
,31A.
,"(a) 1, 2 and 3"
,"(b) 1, 2, 3 and 4"
,"(c) 2, 3 and 4"
,"(d) 1, 3 and 4"
,156.   Which of the following expenditures are “charged” on the Consolidated
,Fund of India?
,1. Salaries and allowances of Chairman of Council of States.
,2. Salaries and allowances of Comptroller and Auditor-General.
,3. Any sum required to satisfy any judgement of any arbitral tribunal.
,4. Salaries and allowances of Deputy Speaker.
,(a) 2 and 3
,"           (b) 1, 2 and 3"
,"(c) 1, 2, 3 and 4"
,(d) 2 and 4
,157.    Which of the following must be approved by the Public Accounts
,Committee before being submitted to the Lok Sabha for voting?
,(a) Additional grant
,(b) Exceptional grant
,(c) Token grant
,(d) Excess grant
,158.    Which of the following is not involved in the preparation of budget?
,(a) Finance Ministry
,(b) NITI Aayog
,(c) Comptroller and Auditor-General
,(d) Finance Commission
,159.    Which of the following categories of bills require prior consent of the
,President before their introduction?
,1. Bills to reorganise states.
,2. Bills affecting taxes in which the states are interested.
,3. State bills imposing restrictions on freedom of trade.
,4. Bills involving expenditure from the Consolidated Fund of India.
,"(a) 1, 2 and 4"
,"(b) 1, 2, 3 and 4"
,"(c) 2, 3, and 4"
,"(d) 1, 2, 3"
,160.    The Inter-State Council consists of
,1. Prime Minister
,2. Chief Ministers of all states
,3. Chief Ministers of union territories with legislatures
,4. Eight Union Cabinet Ministers
,5. Administrators of union territories with legislatures
,"(a) 1, 2, 3, 4 and 5"
,"(b) 1, 2, 3 and 4"
,"(c) 1, 2 and 3"
,"(d) 1, 2, 3 and 5"
,161.    Which of the following Cabinet Committees is not chaired by the Prime
,Minister?
,(a) Political Affairs Committee
,(b) Appointments Committee
,(c) Committee on Parliamentary Affairs
,(d) Economic Affairs Committee
,"162.    On which of the following items, the Finance Commission makes"
,recommendations to the President?
,1. The distribution between the Union and the states of the net proceeds of
,taxes and the allocation between the states of the respective shares of
,such proceeds.
,      2. The principles which should govern the grants-in-aid of the revenues of
,the states out of the Consolidated Fund of India.
,3. The measures needed to augment the Consolidated Fund of a state to
,supplement the resources of the municipalities in the state on the basis
,of the recommendations made by the Finance Commission of the state.
,4. Any other matter referred to it by the President in the interests of sound
,finance.
,"(a) 1, 2 and 4"
,"(b) 1, 2, 3 and 4"
,(c) 1 and 2
,"(d) 1, 2 and 3"
,163. Fundamental Duties were incorporated in the Constitution on the
,recommendation of:
,(a) Shah Commission
,(b) Administrative Reforms Commission
,(c) Santhanam Committee
,(d) Swaran Singh Committee
,
,Assertion (A) and Reason (R) Pattern
,Answer the following questions by using the codes given below.
,(a) Both A and R are true and R is the correct explanation of A.
,(b) Both A and R are true but R is not a correct explanation of A.
,(c) A is true but R is false.
,(d) A is false but R is true
,164. Assertion: The President of India can be impeached for the violation of    the
,Constitution.
,Reason: The Constitution lays down the procedure for impeachment of        the
,President.
,165. Assertion: The 73rd Amendment Act is a significant landmark in             the
,evolution of grassroots democratic institutions in the country.
,Reason: The Act has brought the Pan-chayati Raj institutions under         the
,purview of justiciable part of the the Constitution.
,166. Consider the following statements about the Governor:
,1. He submits his resignation letter to the Chief Justice of the state.
,2. He should have completed 35 years of age.
,"3. His emoluments, allowances and privileges are determined by            the"
,President.
,4. No criminal proceedings can be instituted against him.
,"Of the above, the incorrect statements are:"
,(a) 1 and 3
,"(b) 2, 3 and 4"
,"(c) 1, 3 and 4"
,(d) 2 and 4
,167. How many members are nominated to the State Legislative Council by         the
,Governor?
,       (a) One-third
,(b) One-twelfth
,(c) One-eighth
,(d) One-sixth
,168.   Assertion: A minister at the state level continues in office till he enjoys the
,confidence of the Chief Minister.
,Reason: The Chief Minister can ask him to resign or advise the Governor to
,dismiss him in case of difference of opinion. Select the correct code:
,(a) Both A and R are true and R is the correct explanation of A.
,(b) Both A and R are true but R is not a correct explanation of A.
,(c) A is true but R is false.
,(d) A is false but R is true.
,169.   Which of the following are true of the recommendations of Ashok Mehta
,Committee on Panchayati Raj?
,"1. Creation of Mandal Panchayat covering a population of 10,000 to"
,"15,000."
,2. The state legislature to have a committee on Panchayati Raj to look
,after the needs of weaker sections.
,"3. If Panchayati Raj institutions are superseded, elections must be held"
,within one year.
,4. Nyaya Panchayats should be presided over by the village development
,officer.
,"(a) 1, 2 and 4"
,(b) 2 and 4
,"(c) 1, 2 and 3"
,(d) only 2
,170.   Which of the following are true of the provisions of the 74th Amendment Act
,on municipalities?
,"1. Wards Committees, for wards with population of two lakhs."
,"2. The state Governor may authorise them to levy, collect and appropriate"
,taxes.
,3. A Municipal council for smaller Urban area.
,4. The Twelfth Schedule contains 20 functional items for the municipalities.
,"(a) 1, 3 and 4"
,"(b) 1, 2 and 4"
,(c) 3 only
,(d) 3 and 4
,171.   Assertion: The number of members of UPSC is determined by the
,President. Reason: The members of the UPSC are appointed by the
,President.
,Select the correct code:
,(a) Both A and R are true and R is the correct explanation of A.
,(b) Both A and R are true and R is not a correct explanation of A.
,(c) A is true but R is false.
,(d) A is false but R is true.
,172. Assertion: The members of All-India Services work in the Central
,"Government, state governments and union territories."
,Reason: They are selected and recruited on the basis of all-India
,competitive examinations conducted by the UPSC.
,Select the correct code:
,(a) Both A and R are true and R is the correct explanation of A.
,(b) Both A and R are true but R is not a correct explanation of A.
,(c) A is true but R is false.
,(d) A is false but R is true.
,173. Assertion: The principle of the rule of lapse leads to “rush of expenditure”
,towards the end of a financial year.
,Reason: The unspent voted expenditure would lapse by the end of the
,financial year.
,Select the correct code:
,(a) Both A and R are true and R is the correct explanation of A.
,(b) Both A and R are true but R is not a correct explanation of A.
,(c) A is true but R is false.
,(d) A is false but R is true.
,174. Match the following:
,List-I (Parliamentary committees)              List-II (Created in)
,A. Committee on Government Assurances                         1. 1923
,B. Committee on Public Undertakings                           2. 1953
,C. Committee on Subordinate Legislation                       3. 1921
,D. Public Accounts Committee                                  4. 1953
,5. 1964
,Codes:          A      B      C       D
,(a)   4      5      1       3
,(b)   2      5      4       1
,(c)   4      5      2       1
,(d)   2      5      4       3
,175. Which of the following are true of Central Vigilance Commission?
,1. It was set up on the recommendation of Santhanam Committee.
,2. It does not exercise superintendence over the functioning of CBI.
,3. It is set up by an executive resolution of the Government of India.
,4. It consists of a chairman and three members.
,"(a) 1, 2 and 4"
,"(b) 1, 3 and 4"
,(c) 1 and 3
,(d) 1 and 4
,176. Which of the following will be the consequences of declaration of national
,emergency by the President?
,1. The President can issue directives to the state executives.
,2. The President can extend the normal tenure of the Lok Sabha.
,3. The President can suspend all the Fundamental Rights of citizens.
,        4. The President can modify the distribution pattern of financial resources
,between Centre and states.
,"(a) 1, 3 and 4"
,(b) 1and 4
,"(c) 1, 2, 3 and 4"
,"(d) 1, 2 and 3"
,177.    Which one of the following pairs is correctly matched?
,(a) 1919 Act - Dyarchy at the Centre
,(b) 1861 Act - Portfolio system
,(c) 1935 Act - Bicameralism
,(d) 1853 Act - Governor-General of India
,178.    Which of the following are true of the President’s ordinance making power?
,1. It is laid down in Article 123.
,2. Its ambit is coextensive with the legislative power of Parliament.
,3. He can promulgate an ordinance only when the Lok Sabha is not in
,session.
,4. It is a discretionary power of the President.
,"(a) 1, 2, 3 and 4"
,"(b) 1, 2 and 4"
,(c) 1 and 2
,"(d) 1, 2, and 3"
,179.    Which of the following are the limitations on the sovereignty of Indian
,Parliament?
,1. Fundamental Rights
,2. Judicial Review
,3. Federalism
,4. Written Constitution
,"(a) 1, 3 and 4"
,"(b) 1, 2 and 3"
,(c) 1 and 2
,"(d) 1, 2, 3 and 4"
,"180.    Assertion: Under the Government of India Act of 1935, the Residuary"
,powers were vested in the Central Legislature. Reason: The Government of
,"India Act of 1935 divided the subjects into three lists viz. the federal,"
,provincial and concurrent. Select the correct code:
,(a) Both A and R are true and R is the correct explanation of A.
,(b) Both A and R are true but R is not a correct explanation of A.
,(c) A is true but R is false.
,(d) A is false but R is true.
,181.    Which of the following are the federal features of the Indian Constitution?
,1. Rigid Constitution
,2. Bicameral legislature
,3. Office of the CAG
,4. Collective responsibility
,5. Office of the Governor
,"(a) 1, 2 and 3"
,"           (b) 1, 2 and 5"
,"(c) 1, 2, 3 and 4"
,(d) 1 and 2
,182.    Assertion: The President of India determines the qualifications of the
,Chairman and members of the Finance Commisson. Reason: The
,Chairman and members of the Finance Commission are appointed by the
,President of India.
,Select the correct code:
,(a) Both A and R are true and R is the correct explanation of A.
,(b) Both A and R are true but R is not a correct explanation of A.
,(c) A is true but R is false.
,(d) A is false but R is true.
,183.    The correct statements about Finance Commission are:
,1. It is to act as the balancing wheel of Indian fiscal federalism
,2. It consists of a chairman and three other members.
,3. Qualifications of the members of the Commission are determined by the
,President.
,4. It is constituted under the provisions of Article 280.
,"(a) 2, 3 and 4"
,(b) 2 and 3
,(c) 1 and 4
,"(d) 1, 2 and 3"
,184.    The Indian President’s veto power is a combination of:
,1. Pocket veto
,2. Absolute veto
,3. Suspensive veto
,4. Qualified veto
,(a) 2 and 3
,"(b) 1, 3 and 4"
,"(c) 2, 3 and 4"
,"(d) 1, 2 and 3"
,185.    The present relationship between the President and the council of ministers
,is governed by the provisions of:
,(a) 42nd Amendment Act
,(b) 48th Amendment Act
,(c) 54th Amendment Act
,(d) 44th Amendment Act
,186.    The Zonal Councils have been established by:
,(a) Article 263 of the Constitution
,(b) States reorganisation Act
,(c) Zonal Councils Act
,(d) An order of the President of India
,187.    Which of the following statements are correct?
,1. Parliament can increase a tax.
,2. Parliament cannot reduce a tax.
,3. Parliament can abolish a tax.
,       4. Parliament cannot increase a tax.
,5. Parliament can reduce a tax.
,"(a) 1, 3 and 5"
,"(b) 3, 4 and 5"
,"(c) 2, 3 and 4"
,(d) 3 and 4
,188.   Which of the following statements are correct with regard to the
,expenditure charged upon the Consolidated Fund of India?
,1. It is subject to the vote of Parliament.
,2. It is subject to the discussion in Parliament.
,3. It is subject to the vote of Lok Sabha only.
,4. It is not subject to the vote of Parliament.
,(a) 1 and 2
,(b) 2 and 3
,(c) 2 and 4
,(d) 1 and 4
,189.   The correct statements regarding the difference between the pardoning
,powers of President and Governor are:
,1. The Governor can pardon sentences inflicted by court martial while the
,President cannot.
,2. The President can pardon death sentence while Governor cannot.
,3. The Governor can pardon death sentence while the President cannot.
,4. The President can pardon sentences inflicted by court martial while the
,Governor cannot.
,(a) 1 and 2
,(b) 2 and 4
,(c) 1 and 3
,(d) 3 and 4
,190.   Which of the following statements are correct regarding the powers of a
,Governor to reserve a bill for the consideration of the President?
,1. It is laid down in Article 200.
,2. It is not a discretionary power of the Governor.
,"3. It is compulsory, if the bill endangers the position of High Court."
,4. He can reserve any bill passed by the state legislature.
,"(a) 1, 2 and 3"
,(b) 3 and 4
,(c) 1 and 3
,"(d) 2, 3 and 4"
,191.   The incorrect statements about Central Vigilance Commission are:
,1. It was set up on the recommendations of Administrative Reforms
,Commission.
,2. It is headed by the Central Vigilance Commissioner appointed by the
,Prime Minister.
,"3. Its functions, in certain cases, overlap with the functions of the UPSC."
,4. It is certainly a substitute for an Ombudsman.
,5. It receives complaints directly from aggrieved persons.
,"        (a) 1, 4 and 5"
,"(b) 1, 2 and 4"
,(c) 3 and 4
,"(d) 3, 4 and 5"
,192. Which of the following civil services find mention in the Constitution?
,1. Indian Administrative Service
,2. Indian Forest Service
,3. Indian Police Service
,4. All-India Judicial Service
,5. Indian Foreign Service
,(a) 1 and 3
,"(b) 1, 2 and 3"
,"(c) 1, 3 and 5"
,"(d) 1, 3 and 4"
,193. In which of the following circumstances the President can remove a
,member of the UPSC without referring the matter to the Supreme Court?
,"1. If he engages, during his term of office, in any paid employment outside"
,the duties of his office.
,2. If he is adjudged an insolvent.
,3. If he is unfit to continue in office by reason of infirmity of mind or body.
,"4. If he becomes, in any way, concerned or interested in any contract or"
,agreement made by or on behalf of the Government of India or the
,government of a state.
,(a) 2 and 3
,(b) 4 only
,(c) 1 only
,"(d) 1, 2 and 3"
,194. Which of the following are not the concerns of the UPSC?
,1. Classification of services
,2. Promotion
,3. Training
,4. Disciplinary matters
,5. Talent hunting
,"(a) 2, 4 and 5"
,"(b) 1, 3 and 4"
,(c) 1 and 3
,(d) 1 and 4
,
,Matching Pattern
,Match List-I with List-II and select the correct answer by using the codes given
,below the respective lists.
,195.        List-I (Acts)                        List-II (Provisions)
,A. Indian Councils Act 1. Introduced Dyarchy
,of 1861.               2. Placed Indian affairs under the direct control
,of the British Government.
,       B. Government        of 3. Introduced representative institutions.
,India Act of 1919    4. Introduced provincial autonomy.
,C. Indian Councils Act 5. Introduced the principle of election.
,of 1892
,D. Pitts India Act of
,1784
,Codes:      A B C D
,(a)    4 3 1 2
,(b)    4 3 2 1
,(c)    3 4 2 1
,(d)    3 4 1 2
,
,
,Assertion (A) and Reason (R) Pattern
,Answer the following questions by using the codes given below:
,(a) Both A and R are true and R is the correct explanation of A.
,(b) Both A and R are true but R is not a correct explanation of A.
,(c) A is true but R is false.
,(d) A is false but R is true.
,196. Assertion: NITI Aayog is neither a statutory body nor a constitutional body.
,Reason: It is established by an executive resolution of the Union Cabinet.
,197. Assertion: The Constitution of India in quasi-federal.
,Reason: It has given more powers to the Central Government than to the
,state governments.
,198. Assertion: The Chief Minister can dismiss a minister of state government.
,Reason: The Chief Minister is the head of the state council of ministers.
,199. Which of the following are correct with regard to the functions of the
,UPSC?
,1. To conduct examinations for appointments to the services of the Union.
,"2. To assist states, if requested, in framing and operating schemes of joint"
,recruitment for any services for which candidates possessing special
,qualifications are required.
,3. To advise the Union and state governments on all matters relating to
,methods of recruitment to civil services and for civil posts.
,"4. To present, annually, to the President a report as to the work done by it."
,"(a) 1, 2 and 3"
,"(b) 1, 3 and 4"
,"(c) 1, 2 and 4"
,"(d) 1, 2, 3 and 4"
,200. Which of the following writs is not specifically provided in the Constitution of
,India?
,(a) Prohibition
,(b) Mandamus
,(c) Quowarranto
,(d) Injunction
,Answers
,1.    c 2.    b 3.    d 4.    b 5.    d 6.    d 7.    b 8.    d 9.    a 10.   b
,11.   d 12.   c 13.   d 14.   a 15.   d 16.   c 17.   c 18.   c 19.   b 20.   a
,21.   c 22.   b 23.   d 24.   c 25.   c 26.   d 27.   c 28.   d 29.   c 30.   b
,31.   c 32.   d 33.   a 34.   c 35.   a 36.   a 37.   c 38.   d 39.   d 40.   d
,41.   b 42.   d 43.   d 44.   d 45.   b 46.   c 47.   b 48.   d 49.   b 50.   d
,51.   d 52.   c 53.   c 54.   d 55.   d 56.   c 57.   c 58.   c 59.   c 60.   d
,61.   b 62.   d 63.   c 64.   c 65.   c 66.   b 67.   c 68.   d 69.   d 70.   b
,71.   a 72.   d 73.   b 74.   b 75.   d 76.   b 77.   b 78.   d 79.   c 80.   d
,81.   d 82.   c 83.   b 84.   c 85.   a 86.   a 87.   a 88.   b 89.   b 90.   c
,91.   d 92.   d 93.   d 94.   d 95.   c 96.   d 97.   d 98.   d 99.   c 100. b
,101. a 102. c 103. c 104. d 105. d 106. a 107. b 108. c 109. a 110. a
,111. d 112. c 113. c 114. c 115. d 116. c 117. c 118. d 119. c 120. d
,121. b 122. b 123. b 124. c 125. b 126. a 127. c 128. d 129. a 130. b
,131. a 132. b 133. c 134. b 135. b 136. c 137. b 138. a 139. c 140. b
,141. c 142. d 143. c 144. d 145. c 146. a 147. b 148. b 149. c 150. a
,151. d 152. b 153. a 154. b 155. b 156. a 157. d 158. d 159. b 160. c
,161. c 162. b 163. d 164. b 165. a 166. a 167. d 168. a 169. d 170. c
,171. b 172. b 173. a 174. d 175. c 176. b 177. b 178. c 179. d 180. d
,181. d 182. d 183. c 184. d 185. d 186. b 187. b 188. c 189. b 190. c
,191. b 192. d 193. d 194. c 195. d 196. a 197. a 198. d 199. c 200. d
,Appendix IX UPSC Questions on Indian
,Polity (General Studies— Mains 2010–
,2019)
,2010 TEST PAPER
,1. Answer the following (in about 250 words): 20
,(a) “Disputes between the riparian states on sharing of river
,waters in postIndependence India are becoming
,increasingly complex.” Objectively analyse the major
,"disputes in this connection, with special reference to the"
,Southern States.
,2. Answer the following (in about 150 words): 12
,(a) With respect to Cooperative Societies what are the
,salient features of the 106th and 111th Constitutional
,Amendment Bills as at present?
,3. Answer the following (in about 150 words): 12
,(a) What are the grounds of disqualification of a Member of
,Parliament from either House? Quote relevant provisions
,in your answer.
,4. Write brief but precise note on the following. Your answer
,should not exceed 50 words. 5
,(a) Legislative powers assigned to the Rajya Sabha under
,Art. 249 and Art. 312 of the Constitution.
,5. Answer the following (in about 150 words): 12
,(a) Bring out the powers and responsibilities attached to the
,office of the Speaker of the Lok Sabha.
,"6. Answer the following, briefly but precisely. Answer should be"
,less than 50 words. 5
,(a) How is disagreement between the Legislative Council
,and the Legislative Assembly of a State in passing of an
,"ordinary Bill, resolved?"
,2011 TEST PAPER
,1. Answer the following (in about 250 words each): 20 ⨯ 3 =
,60
,(a) “Essentially all that is contained in Part IV - A of the
,Constitution is just a codification of tasks integral to the
,Indian way of life’. Critically examine this statement.
,(b) “The exercise of executive clemency is not a privilege but
,"is based on several principles, and discretion has to be"
,exercised in public considerations.” Analyse this
,statement in the context of the judicial powers of the
,President of India.
,"(c) Bring out the salient features of the PCPNDT Act, 1994,"
,and the implications of its amendment in 2003.
,2. Comment on the following (in about 150 words each):           12
,⨯ 3 = 36
,(a) Deendayal Disabled Rehabilitation Scheme (DDRS).
,(b) Evolution of “Green Benches” in our higher judiciary.
,(c) Distinction between “Department Related Parliamentary
,Standing Committees” and “Parliamentary Forums’.
,3. Comment on the following in NOT more than 50 words
,each: 5 ⨯ 2 = 10
,"(b) The Bihar Special Courts Act, 2009 and why it has been"
,in the news recently?
,4. Comment on the following in not more than 50 words: 5
,(a) E-governance initiatives by the Union Public Service
,Commission (UPSC).
,2012 TEST PAPER
,
,1. Answer the following (in about 150 words each): 15 ⨯ 2 =
,30
,(a) The Union Cabinet recently cleared the proposal to
,rename and amend the Child Labour (Prohibition and
,"Regulation) Act, 1986. What are the salient features of"
,the proposed amendments?
,(b) What are the salient features of the Consumer Protection
,"(Amendment) Bill, 2011 introduced in the Lok Sabha in"
,December 2011?
,2. Answer the following (in about 50 words each): 5 ⨯ 3 = 15
,(a) What is the “Parivarik Mahila Lok Adalat’?
,(b) What are the Rights within the ambit of Article 21 of the
,Indian Constitution?
,(c) Comment on the significance of the Preamble contained
,in the Right to Information Act.
,3. Comment on the following (in about 20 words): 2
,(a) Determining the “value” assigned to the vote of a
,Member of a State Legislative Assembly and of a
,Member of Parliament in the Indian Presidential
,elections.
,2013 TEST PAPER
,
,1. The role of individual MPs (Members of Parliament) has
,diminished over the years and as a result healthy
,constructive
,"2. Discuss Section 66A of IT Act, with reference to its alleged"
,violation of Article 19 of the Constitution. [200 words] 10
,3. Recent directives from Ministry of Petroleum and Natural
,Gas are perceived by the ‘Nagas’ as a threat to override the
,exceptional status enjoyed by the State. Discuss in light of
,Article 371A of the Indian Constitution.
,[200 words] 10
,4. “The Supreme Court of India keeps a check on arbitrary
,power of the Parliament in amending the Constitution.”
,Discuss critically.
,[200 words] 10
,5. Many State Governments further bifurcate geographical
,administrative areas like Districts and Talukas for better
,"governance. In light of the above, can it also be justified that"
,more number of smaller States would bring in effective
,governance at State level? Discuss.
,[200 words] 10
,6. Constitutional mechanisms to resolve the inter-state water
,disputes have failed to address and solve the problems. Is
,the failure due to structural or process inadequacy or both?
,Discuss.
,[200 words] 10
,7. Discuss the recommendations of the 13th Finance
,Commission which have been a departure from the previous
,commissions for strengthening the local government
,finances.
,[200 words] 10
,8. Pressure group politics is sometimes seen as the informal
,"face of politics. With regards to the above, assess the"
,   structure and functioning of pressure groups in India.
,[200 words] 10
,"9. “A national Lokpal, however strong it may be, cannot resolve"
,the problems of immorality in public affairs.” Discuss.
,[200 words] 10
,10. What is meant by Gujral doctrine? Does it have any
,relevance today? Discuss.
,[200 words]   10
,2014 TEST PAPER
,
,"1. Starting from inventing the “basic structure” doctrine, the"
,judiciary has played a highly proactive role in ensuring that
,India develops into a thriving democracy. In light of the
,"statement, evaluate the role played by judicial activism in"
,achieving the ideals of democracy.
,[200 words] 12Vz
,2. Though the federal principle is dominant in our Constitution
,"and that principle is one of its basic features, but it is equally"
,true that federalism under the Indian Constitution leans in
,"favour of a strong Centre, a feature that militates against the"
,concept of strong federalism. Discuss.
,[200 words] 12Vz
,"3. The “Powers, Privileges and Immunities of Parliament and its"
,Members” as envisaged in Article 105 of the Constitution
,leave room for a large number of un-codified and un-
,enumerated privileges to continue. Assess the reasons for
,the absence of legal codification of the “parliamentary
,privileges’. How can this problem be addressed?
,[200 words] 12V2
,4. What do you understand by the concept “freedom of speech
,and expression’? Does it cover hate speech also? Why do
,the films in India stand on a slightly different plane from other
,forms of expression? Discuss.
,[200 words] 12V2
,5. Instances of President’s delay in commuting death sentences
,has come under public debate as denial of justice. Should
,there be a time limit specified for the President to
,accept/reject such petitions? Analyse.
,[200 words] 12V2
,6. The size of the cabinet should be as big as governmental
,work justifies and as big as the Prime Minister can manage
,  as a team. How far is the efficacy of a government then
,inversely related to the size of the cabinet? Discuss.
,[200 words] 12V2
,7. National Human Rights Commission (NHRC) in India can be
,most effective when its tasks are adequately supported by
,other mechanisms that ensure the accountability of a
,government. In light of the above observation assess the role
,of NHRC as an effective complement to the judiciary and
,other institutions in promoting and protecting humans rights
,standards.
,[200 words]    12V2
,2015 TEST PAPER
,
,1. Discuss the possible factors that inhibit India from enacting
,for its citizens a uniform civil code as provided for in the
,Directive Principles of State Policy.
,[200 words] 12V2
,2. The concept of cooperative federalism has been increasingly
,emphasized in recent years. Highlight the drawbacks in the
,existing structure and the extent to which cooperative
,federalism would answer the shortcomings.
,[200 words] 12V2
,3. In absence of a well-educated and organized local level
,"government-system, ‘Panchayats’ and ‘Samitis’ have"
,remained mainly political institutions and not effective
,instruments of governance. Critically discuss.
,[200 words] 12V2
,4. Khap Panchayats have been in the news for functioning as
,"extra-constitutional   authorities,    often     delivering"
,pronouncements amounting to human rights violations.
,"Discuss critically the actions taken by the legislative,"
,executive and the judiciary to set the things right in this
,regard.
,[200 words] 12V2
,5. Resorting to ordinances has always raised concern on
,violation of the spirit of separation of powers doctrine. While
,noting the rationales justifying the power to promulgate
,"ordinances, analyze whether the decisions of the Supreme"
,Court on the issue have further facilitated resorting to this
,power. Should the power to promulgate ordinances be
,repealed?
,[200 words] 12V2
,6. What are the major changes brought in the Arbitration and
,"Conciliation Act,"
,7. Does the right to clean environment entail legal regulations
,on burning crackers during Diwali? Discuss in the light of
,Article 21 of the Indian Constitution and Judgement(s) of the
,Apex Court in this regard.
,[200 words] 12½
,"8. ""If amendment bill to the Whistleblowers Act, 2011 tabled in"
,"the Parliament is passed, there may be no one left to"
,"protect."" Critically evaluate."
,[200 words]    12½
,2016 TEST PAPER
,
,1. Discuss the essentials of the 69th Constitutional Amendment
,"Act and anomalies, if any, that have led to recent reported"
,conflicts between the elected representatives and the
,institution of the Lieutenant Governor in the administration of
,Delhi. Do you think that this will give rise to a new trend in the
,functioning of the Indian federal politics?
,[200 words] 12½
,"2. To what extent is Article 370 of the Indian Constitution,"
,bearing marginal note “temporary provision with respect to
,"the State of Jammu and Kashmir”, temporary? Discuss the"
,future prospects of this provision in the context of Indian
,polity.
,[200 words] 12½
,3. “The Indian party system is passing through a phase of
,transition which looks to be full of contradictions and
,paradoxes.” Discuss.
,[200 words] 12½
,4. Exercise of CAG’s powers in relation to the accounts of the
,Union and the States is derived from Article 149 of the Indian
,Constitution. Discuss whether audit of the Government’s
,policy implementation could amount to overstepping its own
,(CAG) jurisdiction.
,[200 words] 12½
,5. Discuss each adjective attached to the word “Republic” in the
,“Preamble’. Are they defendable in the present
,circumstances?
,[200 words] 12½
,"6. What was held in the Coelho case? In this context, can you"
,say that judicial review is of key importance amongst the
,basic features of the Constitution?
,[200 words]     12½
,"7. Did the Government of India Act, 1935 lay down a federal"
,constitution? Discuss.
,[200 words] 12½
,8. What is quasi-judicial body? Explain with the help of concrete
,examples.
,[200 words] 12½
,9. Evaluate the economic the strategic dimensions of India’s
,Look East policy in the context of the post Cold War
,international scenario.
,[200 words]    12½
,2017 TEST PAPER
,
,1. “The local self-government system in India has not proved to
,be effective instrument of governance”. Critically examine the
,statement and give your views to improve the situation.
,[150 words] 10
,2. Critically examine the Supreme Court’s judgement on
,"“National Judicial Appointments Commission Act, 2014” with"
,reference to appointment of judges of higher judiciary in
,India.
,[150 words] 10
,3. “Simultaneous election to the Lok Sabha and the State
,Assemblies will limit the amount of time and money spent in
,electioneering but it will reduce the government’s
,accountability to the people” Discuss.
,[150 words] 10
,4. How do pressure groups influence Indian political process?
,Do you agree with this view that informal pressure groups
,have emerged as powerful than formal pressure groups in
,recent years?
,[150 words] 10
,5. Discuss the role of Public Accounts Committee in
,establishing accountability of the government to the people.
,[150 words] 10
,6. Explain the salient features of the Constitution (One Hundred
,"and First Amendment) Act, 2016. Do you think it is"
,efficacious enough “to remove cascading effect of taxes and
,provide for
,[250 words] 15
,8. The Indian Constitution has provisions for holding joint
,session of the two houses of the Parliament. Enumerate the
,occasions when this would normally happen and also the
,"occasions when it cannot, with reasons thereof."
,                                             [250 words] 15
,9. To enhance the quality of democracy in India the Election
,Commission of India has proposed electoral reforms in 2016.
,What are the suggested reforms and how far are they
,significant to make democracy successful?
,[250 words]   15
,2018 TEST PAPER
,
,1. In the light of recent controversy regarding the use of
,"Electronic Voting Machines (EVM), what are the challenges"
,before the Election Commission of India to ensure the
,trustworthiness of elections in India?
,[150 words] 10
,2. Whether National Commission for Scheduled Castes
,(NCSCJ) can enforce the implementation of constitutional
,reservation for the Scheduled Castes in the religious minority
,institutions? Examine.
,[150 words] 10
,3. Under what circumstances can the Financial Emergency be
,proclaimed by the President of India? What consequences
,follow when such a declaration remains in force?
,[150 words] 10
,4. Why do you think the committees are considered to be useful
,"for parliamentary work? Discuss, in this context, the role or"
,the Estimates Committee.
,[150 words] 10
,5. “The Comptroller and Auditor General (CAG) has a very vital
,role to play.” Explain how this is reflected in the method and
,terms of his appointment as well as the range of powers he
,can exercise.
,[150 words] 10
,6. Whether the Supreme Court Judgement (July 2018) can
,settle the political tussle between the Lt. Governor and
,elected government of Delhi? Examine.
,[250 words] 15
,7. How far do you agree with the view that tribunals curtail the
,"jurisdiction of ordinary courts? In view of the above, discuss"
,the constitutional validity and competency of the tribunals in
,India.
,                                             [250 words] 15
,8. How is the Finance Commission of India constituted? What
,do you about the terms of reference of the recently
,constituted Finance Commission? Discuss.
,[250 words] 15
,9. Assess the importance of Panchayat system in India as a
,"part of local government. Apart from government grants, what"
,sources the Panchayats can look out for financing
,developmental projects.
,[250 words] 15
,10. India and USA are two large democracies. Examine the
,basic tenets on which the two political systems are based.
,[250 words]    15
,2019 TEST PAPER
,
,1. Do you think that constitution of India does not accept
,principle of strict separation of powers rather it is based on
,the principle of “checks and balance’? Explain.
,[150 words] 10
,2. “The Central Administration Tribunal which was established
,for redressal of grievances and complaints by or against
,"central government employees, nowadays is exercising its"
,powers as an independent judicial authority.” Explain.
,[150 words] 10
,3. What are the methods used by the Farmers organizations to
,influence the policymakers in India and how effective are
,these methods?
,[150 words] 10
,4. From the resolution of contentious issues regarding
,"distribution of legislative powers by the courts, “Principle of"
,Federal Supremacy” and “Harmonious Construction” have
,emerged. Explain.
,[150 words] 10
,5. What can France learn from the Indian Constitution’s
,approach to secularism?
,[150 words] 10
,6. On what grounds a people’s representative can be
,"disqualified under the Representation of People Act, 1951?"
,Also mention the remedies available to such person against
,his disqualification.
,[250 words] 15
,7. “Parliament’s power to amend the Constitution is a limited
,power and it cannot be enlarged into absolute power.” In the
,8. “The reservation of seats for women in the institutions of
,local self- government has had a limited impact on the
,patriarchal character of the Indian Political Process.”
,Comment.
,                                                [250 words] 15
,9. “The Attorney-General is the chief legal adviser and lawyer of
,the Government of India.” Discuss.
,[250 words] 15
,10. Individual Parliamentarian’s role as the national lawmaker is
,"on a decline, which in turn, has adversely impacted the"
,quality of debates and their outcome. Discuss.
,[250 words]    15
,Appendix X Practice Questions on
,Indian Polity (General Studies—Mains)
,I. LONG ANSWER QUESTIONS
,Instructions: Answer the following questions. Answer to each
,question should be in about 250 words. Each question carries 30
,Marks.
,1. How does the parliament exercise control over the Union
,Executive? How can it be made more effective?
,2. Explain the ways of acquiring and losing Indian Citizenship.
,3. Explain the right to freedom of religion as envisaged in the
,Indian Constitution.
,4. Evaluate the position of the President of India.
,5. Discuss the features of the party system in India.
,6. Describe the procedure for the amendment of the Indian
,Constitution. What are the criticisms levelled against it?
,7. Critically examine the extent to which the Directive Principles
,of State Policy have been implemented. What measures do
,you suggest for their better implementation?
,8. Explain the principles of Indian foreign policy.
,9. Critically examine the emergency powers of the Indian
,President.
,10. Describe the relative roles of the Rajya Sabha and the Lok
,Sabha in the Indian Political System.
,11. Explain the jurisdiction and powers of the Supreme Court.
,12. Explain the role played by the NITI Aayog in promoting the
,Cooperative Federalism in India.
,13. “The Indian Constitution is federal in form but unitary in
,spirit”. Discuss.
,14. What is the need for promoting National Integration in India?
,What measures do you suggest in this regard?
,15. Describe the various constitutional provisions for the
,protection and development of women and children in India.
,16. What has been the controversy regarding the amenability of
,Fundamental Rights? What constitutes the “basic structure”
,of the Constitution?
,17. What are the changes introduced in the constitutional
,provisions with respect to the centre-state financial relations
,by the 101st Amendment Act? Explain.
,18. Describe the various changes made in the Constitution by
,the 42nd and 44th Amendment Acts.
,19. What are the anti-defection provisions under the
,Constitution? What are the recommendations of the National
,Commission to Review the Working of the Constitution in this
,regard?
,20. What is a coalition government? What has been its
,experience in India at the central level?
,II. SHORT ANSWER QUESTIONS
,Instructions: Answer the following questions. Answer to each
,question should be in about 150 words. Each question carries 15
,Marks.
,1. Describe the composition of the Constituent Assembly of
,India.
,3. How does the writ jurisdiction of the Supreme Court differ
,from that of a High Court?
,4. How the Directive Principles differ from the Fundamental
,Rights?
,5. Explain the role of regional parties in Indian Politics.
,6. Describe the composition and functions of a State Public
,Service Commission.
,7. Explain the ideals contained in the Preamble of the Indian
,Constitution.
,8. Examine the functioning of Judicial Review in the Indian
,Political System.
,9. “India is a secular state”. Explain.
,10. Explain the six freedoms guaranteed under Article 19 of the
,Constitution.
,11. What is meant by President’s Rule? Explain.
,12. Critically examine the discretionary powers of a State
,Governor.
,13. Describe the composition and functions of the National
,Commission for Women.
,14. What are the unitary features of the Indian Constitution?
,15. Explain the procedure for the impeachment of the President.
,16. What are the functions of the VicePresident of India? How
,does he differ from the American Vice-President?
,17. What are the special powers enjoyed by the Rajya Saba?
,What is its utility?
,18. Describe the powers and functions of the Speaker of Lok
,Sabha.
,19. What is a “cut motion’? What are its different kinds? What is
,its significance?
,20. How is the State Legislative Assembly supreme over the
,State Legislative Council?
,21. What is the composition of the Finance Commission? What
,are its functions?
,22. Describe the features of the new Panchayati Raj System as
,introduced by the 73rd Amendment Act.
,23. What is voting behaviour? Explain the determinants of voting
,behaviour in India.
,25. What are the circumstances under which the Parliament can
,legislate on the State List subjects?
,26. What is “Sovereignty of Parliament’? Is Indian Parliament a
,sovereign body?
,27. What are the constitutional provisions with respect to the
,joint sitting of the two Houses of Parliament?
,28. Describe the ordinance-making power of the President of
,India.
,29. Who are linguistic minorities? What are the constitutional
,safeguards for them?
,30. Describe the composition and functions of the National
,Commission for Protection of Child Rights.
,III. VERY SHORT ANSWER QUESTIONS
,Instructions: Answer the following questions. Answer to each
,question should be in about 20 words. Each question carries 2
,Marks.
,1. What is meant by “Gujral Doctrine’?
,2. Distinguish between “Judicial Review” and “Judicial
,Activism’.
,3. What is the significance of Article 355 of the Constitution of
,India?
,4. What is the purpose of the Lok Adalats?
,5. What is meant by “Dilatory Motion’?
,6. What is meant by the “Doctrine of Pith and Substance’?
,7. Why Rajya Sabha is known as a Permanent House?
,8. What is meant by “Non-Alignment’?
,9. Is the Constitution of India flexible or rigid?
,10. What is the present position of the Right to Property?
,11. Write the Directive Principles that were added by the Forty-
,Second Constitutional Amendment Act.
,12. Who do not participate in the election of the President of
,India?
,13. How is the Vice-President of India elected?
,16. What are the changes made in the constitution by the 42nd
,and 44th Amendment Acts with respect to the powers of the
,President in relation to the Central Council of Ministers?
,17. What is the meaning of “Guillotine’?
,18. Distinguish between Public Bill and Private Bill.
,19. What are the qualifications of the judges of State High
,Courts?
,20. What is meant by “Residuary Powers’?
,25. What are the functions of the AttorneyGeneral of India?
,26. What is meant by “Point of Order’?
,27. What are the functions of the Zonal Councils?
,28. What is first-past-the-post system?
,29. What is meant by “Money Bill’?
,30. What is meant by the Doctrine of “Colourable Legislation’?
,
SUPREME COURT OF INDIA,
HANDBOOK,
ON,
PRACTICE AND PROCEDURE,
AND,
OFFICE PROCEDURE,
2017,
CONTENTS,
Page Nos.,
Chapter I - Preliminary 1-4,
1. Seal of the Supreme Court 1,
2. Language 1,
3. Definition 1,
(i) Advocate 1,
(ii) Advocate on-record 1,
(iii) Appointed day 1,
(iv) Allocated Matter 1-2,
(v) Chief Justice 2,
(vi) Code 2,
(vii) Constitution 2,
(viii) Court and this Court 2,
(ix) Court appealed from 2,
(x) Court Fee 2,
(xi) High Court 2,
(xii) Interlocutory Application 2,
(xiii) Judge 3,
(xiv) Judgment 3,
(xv) Main Case 3,
(xvi) Minor 3,
(xvii) Miscellaneous Application 3,
(xviii) Not taken up case 3,
(xix) Prescribed 3,
(xx) Record 3,
(xxi) Respondent 3,
(xxii) The Rules and Rules of the Court 3,
"(xxiii) Secretary General, Registrar and Registry 4",
(xxiv) Senior Advocate 4,
(xxv) Special Bench 4,
(xxvi) Taxing Officer 4,
(xxvii) Terminal List 4,
Chapter II - Court and Jurisdiction 5-15,
1. Appellate Jurisdiction 5,
2. Extra-ordinary Appellate Jurisdiction 5,
3. Original Jurisdiction 5-6,
4. Extra-ordinary Original Jurisdiction 7,
5. Advisory Jurisdiction 7-8,
6. Inherent and Plenary Jurisdiction 8,
7. Notes 8-15,
8. Order XLVIII of the Rules 15,
i,
Chapter III - Classification of Cases 16-21,
1. Arbitration Petition 16,
2. Civil Appeal 16-17,
3. Contempt Petition (Civil) 17,
4. Contempt Petition (Criminal) 17-18,
5. Criminal Appeal 18,
6. Election Petition 18,
7. Original Suit 19,
8. Petition for Special Leave to Appeal 19,
9. Special Reference Case 19,
10. Transferred Case 19,
11. Transfer Petition 20,
12. Writ Petition 20-21,
13. Review Petition 21,
14. Curative Petition 21,
15. General 21,
Chapter IV - Constitution and Jurisdiction of Benches 22-29,
1. Single Bench 22-25,
2. Division Bench 25-26,
3. Constitution Bench 26,
4. Reference to Larger Bench 26,
5. Review Petition 26-27,
6. Curative Petition 27-28,
7. General 28-29,
"Chapter V –Powers, Duties and Functions of the Registrar 30-37",
1. Taxing Officer 35,
2. Powers under Order V Rule 1 of the Rules 36-37,
Chapter VI – Roster 38,
Chapter VII - Working Hours and Vacation 39-41,
1. Court 39,
2. Offices of the Court 39,
3. Vacation Court 40-41,
4. Vacation Officer 41,
"Chapter VIII –Advocate, Vakalatnama and Memo of 42-47",
Appearance,
1. Advocate on-Record 42-43,
2. Advocate 44,
3. Senior Advocate 44-45,
4. Vakalatnama 45-46,
ii,
5. Memo of Appearance 46-47,
6. General 47,
Chapter IX – Affidavits 48-51,
Chapter X - Preparation for Filing of Cases 52-77,
1. Civil Matters 54-69,
2. Arbitration Petition 55,
3. Civil Appeal 56-58,
4. Election Petition 58-59,
5. Reference 59-60,
6. Petition for Special Leave to Appeal 60-64,
7. Original Suit 64-65,
8. Transfer Petition 65-66,
9. Review Petition 66-67,
10. Curative Petition 67,
11. Writ Petition 67-68,
12. Public Interest Litigation 68-69,
13. Interlocutory and Miscellaneous Applications 69,
14. Criminal Matters 69-74,
15. Criminal Appeal 69-71,
16. Petition for Special Leave to Appeal 71-72,
17. Jail Petition 72,
18. Habeas Corpus 72,
19. Transfer Petition 72,
20. Bail Application 72-74,
21. General 74-77,
22. Index 77,
Chapter XI –Filing and Processing of Cases 78-97,
1. Filing Counter 79-82,
(a) Stage One 79-80,
(b) Stage Two 80,
(c) Stage Three 80-81,
(d) Stage Four 81-82,
(e) Stage Five 82,
2. eFiling 82-83,
3. Defective and Fresh Cases 83,
4. Caveat 83-85,
5. Miscellaneous Document Counter 85,
6. Registrar 85-87,
7. Judge in Chambers 87,
8. Elimination Section 87-88,
9. Coram by Filing Counter 88-89,
10. Modified Check List for Scrutiny and 89-92,
Processing of Main Cases,
11. Scrutiny and Processing of Applications 92-95,
12. General 95-97,
iii,
Chapter XII - Limitation 98-101,
Chapter XIII –Listing of Cases 102-115,
1. Cause List and Listing 102-104,
2. Mention Memo/Listing Proforma 104-105,
"3. Case, Coram and Listing 105-112",
4. Note 112-113,
5. Appearance in Court of Party in-person 113,
6. General 113-115,
Chapter XIV –Procedure After Listing 116-133,
1. Original Records 121-124,
"2. Orders granting Stay, Bail, Release, etc. 124-125",
3. Procedure where a case is not being diligently 125,
prosecuted,
4. Writ Petition 125-126,
5. Writ of Habeas Corpus 126,
6. Contempt Petition 126-131,
7. General 131-133,
8. Note 133,
Chapter XV – Jail Petitions 134-137,
Processing 134-137,
Chapter XVI –Constitution and Functions of the Judicial 138-164,
Branch,
1. Preliminary 138-140,
2. Dealing Assistant 140-144,
3. Branch Officer 144-146,
4. Court Master 146-150,
5. Assistant Registrar 150-151,
6. Deputy Registrar 151-152,
7. Additional Registrar 152-153,
8. Listing of Cases 154,
9. Applications 154-155,
10. Peremptory Order 155,
11. Expeditious Communication of bail orders 155-156,
and Release orders,
12. Inclusion of Documents in the Paper Books 156,
13. Decree and Formal Order 157,
14. Linked and Connected Cases 157-158,
15. Translation 158-159,
16. Consignment to the Record Room 159-161,
17. General 161-164,
iv,
"Chapter XVII – Process, Warrants and Service of Documents 165-175",
Chapter XVIII – Paper Books 176-179,
General 178-179,
"Chapter XIX –Judgment, Decree, Order and Report 180-182",
Chapter XX –Certified Copies 183-187,
Chapter XXI – Records 188-193,
1. Inspection or Search 188-189,
2. Reconstruction 189,
3. Preservation and Destruction 190-191,
4. Part I 191-192,
5. Registers 192,
6. Part II 192-193,
Chapter XXII - Payment into and out of Court of Suitor’s Funds 194-197,
General 197,
Chapter XXIII – Distribution of Work on Judicial Side 198-203,
Chapter XXIV – Removal of Difficulties 204,
Chapter XXV – Schedule 205-217,
1. First Schedule 205-207,
2. Second Schedule 207-210,
3. Third Schedule 210-213,
Part I – Original Jurisdiction 210,
Part-II – Appellate Jurisdiction 210-213,
4. Part-III Miscellaneous 213,
5. Note 214,
6. General 214,
7. Part-IV – Subject Categories 214-217,
Subject Categories 218-228,
Forms 229-267,
1. Application for the Registration of a Clerk 229,
2. Form of Summons for an Order in Chambers 229-230,
3. Notice of Appeal from Registrar 230-231,
4. Notice of Motion 231-232,
5. Form of Oath by Translator 232,
6. Application for Production of Record 233,
7. Notice to the Respondent of Lodgment 233-234,
of Petition of Appeal,
v,
8. Memorandum of Appearance in Person 235,
9. Memorandum of Appearance through 235-236,
Advocate on-Record,
10. Certificate to the Advocate Appointed at 236,
the Cost of the State,
11. Notice to Respondent of Lodging of Appeal 236-237,
12. Summons for Disposal of Suit 237-238,
13. Notice of Appearance 238,
14. Summons for Directions 238-239,
15. Notice of Payment of Money into Court 239-240,
16. Acceptance of Sum paid into Court 240-241,
17. Notice to the Attorney-General for India 241,
of Reference under Article 143 of the Constitution of India,
18. Notice to Parties of Reference under Article 241-242,
143 of the Constitution of India,
19. Summons to Attend Taxation 242-243,
20. Affidavit of Service of Summons 243-244,
21. Affidavit of Service by Post 244-245,
22. Certificate of Taxation 245,
23. Notice for Proceedings to Attorney-General 246,
for India or Advocate-General of a State,
24. Writ of Commission 247-248,
25. Form of Lodgment Schedule 248-249,
26. Deposit Repayment Order and Voucher 249-250,
27. Form of Bank Guarantee 250-251,
28. Form for petition or Special Leave to Appeal 251-253,
29. Application for Issue of Certified 253-254,
Copy/Unauthenticated “Copy”,
30. Appearance Slip 254,
31. Computer-Sheet 255-256,
32. Form for Writ Petition under Article 32 of the 256-257,
Constitution of India,
33. Form for Writ Petition under Article 32 258-260,
relating to Public Interest Litigation,
34. Form of Caveat 260-261,
35. Form of Mention Memo/Listing Proforma 261-262,
36. Format of Inspection or Search of Records 262-263,
37. Notice to the Respondent to Show Cause under 263-265,
Order XXI Rule 9(1) of the Rules,
38. Notice to the Respondent to Show Cause under 265-267,
Order XLI Rule 2 of the Rules.,
39. Annexure I: PIL Guidelines 268-270,
__________,
vi,
CHAPTER I,
PRELIMINARY,
This Handbook on Practice and Procedure of the Court and Office,
"Procedure on Judicial side containing orders issued, from time to time, is",
"a ready reckoner in relation to the Supreme Court Rules, 2013, framed",
under Article 145 of the Constitution.,
1. Seal of the Court – The official seal to be used in the Court shall be,
"such as the Chief Justice may from time to time direct, and shall be kept",
"in the custody of the Secretary General as per Order III, Rule 4 of the",
Rules.,
2. Language - The language to be used in the Court and all proceedings in,
"the Court, shall be in English, as per Article 348 of the Constitution read",
with Order VIII of the Rules.,
3. Definitions :-,
(i) ‘Advocate’ means a person whose name is entered on the roll,
of advocates prepared and maintained by a State Bar Council,
"under the Advocates Act, 1961 (25 of 1961);",
"(ii) ‘Advocate-on-record’ means an advocate, who is entitled under",
the Rules to act as well as to plead for a party in the Court;,
"(iii) ‘Appointed day’ means, August 19, 2014, on which date the",
Rules came into force;,
"(iv) ‘Allocated matter’ means a matter, which, by virtue of the",
"Rules, Roster, Practice and Procedure, Judgment or Order, is",
"required to be heard by a Bench, and includes-",
(a) an assigned case or specially directed case;,
(b) case bearing single coram of a Judge;,
(c) a part-heard case;,
1,
(d) subsequent application for bail or suspension of,
sentence;,
(e) an application for cancellation of bail or suspension of,
sentence granted by the Court;,
(v) ‘Chief Justice’ means the Chief Justice of India and includes a,
Judge appointed under Article 126 of the Constitution to,
perform the duties of the Chief Justice;,
"(vi) ‘Code’ means the Code of Civil Procedure, 1908 (5 of 1908) or",
"the Code of Criminal Procedure, 1973 (2 of 1974), as the case",
may be;,
(vii) ‘Constitution’ means the Constitution of India;,
(viii) ‘Court’ and ‘this Court’ means the Supreme Court of India;,
(ix) ‘Court appealed from’ includes a Tribunal or any other judicial,
body from which an appeal is preferred to the Court;,
(x) “Court fee” means Court fee set out in the Third Schedule to,
the Rules;,
(xi) ‘High Court’ means-,
(a) as respects anything done before the commencement of,
"the Constitution, a High Court within the meaning of",
"Section 219 of the Government of India Act, 1935; and",
(b) as respects anything done or to be done after the,
"commencement of the Constitution, a High Court",
established by or recognized under the Constitution;,
(xii) ‘Interlocutory application’ means an application filed in a,
"pending main case praying for relief, interim or otherwise, from",
the Court;,
2,
(xiii) ‘Judge’ means a Judge of the Co urt;,
"(xiv) ‘Judgment’ includes decree, order, sentence or determination of",
"any Court, Tribunal, Judge or Judicial officer;",
(xv) ‘Main Case’ or ‘Case’ means a case classified in Chapter II of,
this Handbook;,
(xvi) ‘Minor’ in relation to Order VII of the Rules means a person,
who has not attained majority within the meaning of Section 3,
"of the Indian Majority Act, 1875 (9 of 1875), where the appeal,",
petition or other proceeding relates to any of the matters,
mentioned in clauses (a) and (b) of Section 2 of that Act or to,
any other matter;,
(xvii) ‘Miscellaneous Application’ means interlocutory application/,
criminal miscellaneous petition/office report for directions in a,
dismissed/disposed of matter;,
(xviii) ‘Not taken up case’ means a case which could not be or was not,
"taken up, for whatever reason, on the date of listing;",
(xix) ‘Prescribed’ means prescribed by or under the Rules or Practice,
and Procedure or administrative orders issued from time to time,
by the Chief Justice;,
(xx) ‘Record’ in Part II of the Rules means the aggregate of papers,
"relating to an appeal (including the pleadings, proceedings,",
evidence and judgments) proper to be laid before the Court at,
the hearing of the appeal;,
(xxi) ‘Respondent’ includes an intervener;,
(xxii) ‘The Rules’ and ‘Rules of the Court’ means the Supreme Court,
"Rules, 2013, and include the forms appended to the Rules;",
3,
(xxiii) (a) ‘Secretary General’ means the Secretary General of the,
Court;,
(b) ‘Registrar’ means the Registrar of the Court and shall,
include Additional Registrar of the Court;,
(c) ‘Registry’ means the Registry of the Court.,
(xxiv) ‘Senior advocate’ means any advocate so designated under sub-,
"section (2) of Section 16 of the Advocates Act, 1961 (25 of",
"1961), and all such advocates whose names were borne on the",
roll of the senior advocates of the Court immediately before the,
"commencement of Chapter III of the Advocates Act, 1961;",
(xxv) ‘Special Bench’ means the Bench constituted by or under the,
orders of the Chief Justice to hear a case or particular class of,
cases;,
(xxvi) Taxing Officer’ means the Officer of the Court whose duty is,
to tax costs of proceedings in the Court;,
(xxvii) ‘Terminal List’ means a list of cases ready for regular hearing,
year-wise in each class separately in the order of their,
registration.,
4,
CHAPTER II,
COURT AND JURISDICTION,
The jurisdiction of the Supreme Court can be broadly categorised as,
under:,
1. Appellate Jurisdiction --,
"(i) appeals permitted under Articles 132, 133 and 134 of the",
Constitution read with Orders XIX and XX;,
(ii) appeals arising out of Statutes or any other law for the time,
"being in force [refer to Orders XIX, XX, XXI, XXII, XXIII and",
XXIV of the Rules];,
(iii) appeals under Section 2 of the Supreme Court [Enlargement of,
"Criminal Appellate Jurisdiction] Act, 1970; and read with Order",
XX of the Rules;,
"(iv) appeals, upon grant of special leave to appeal, under Article 136",
of the Constitution read with Orders XXI and XXII of the,
Rules.,
2. Extra-ordinary Appellate Jurisdiction --,
Petitions for special leave to appeal under Article 136 of the,
Constitution read with Orders XXI and XXII of the Rules.,
3. Original Jurisdiction --,
(i) Petitions under Article 32 of the Constitution read with Order,
"XXXVIII of the Rules for issue of directions or orders or writs,",
"including the writs in the nature of habeas corpus, mandamus,",
"prohibition, quo warranto and certiorari for enforcement of the",
fundamental rights;,
(ii) Original suits under Article 131 of the Constitution read with,
Part III(A) Orders XXV to XXXVII of the Rules;,
5,
(iii) Petitions under Article 139A(1) of the Constitution read with,
Order XL of the Rules seeking transfer of cases involving the,
same or substantial questions of law pending before the,
Supreme Court and one or more High Courts or before two or,
more High Courts;,
(iv) Petitions under Article 139A(2) of the Constitution read with,
"Order XLI of the Rules seeking transfer of any case, appeal or",
other proceedings pending before any High Court to any other,
High Court;,
"(v) Petitions under Section 25 of the Code of Civil Procedure, 1908",
"read with Order XLI of the Rules, seeking transfer of any suit,",
appeal or other proceeding from a High Court or other civil,
court in one State to a High Court or other civil court in any,
other State;,
"(vi) Petitions under Section 406 of the Code of Criminal Procedure,",
"1973 read with Order XXXIX of the Rules, seeking transfer of",
any particular case or appeal from one High Court to another,
High Court or from a criminal court subordinate to one High,
"Court to another criminal court of equal or superior jurisdiction,",
subordinate to another High Court;,
(vii) Petition under Part III of the Presidential and Vice-Presidential,
"Elections Act, 1952 (31 of 1952) read with Article 71 of the",
Constitution and Order XLVI of the Rules relating to doubts,
and disputes in relation to the election of a President or Vice-,
President;,
(viii) Petition under Section 11(5) of the Arbitration and Conciliation,
"Act, 1996, read with Appointment of Arbitrators by the Chief",
"Justice of India Scheme, 1996, relating to appointment of an",
Arbitrator.,
6,
4. Extra-ordinary Original Jurisdiction --,
(i) Petitions under Article 32 of the Constitution read with Part,
III(B) Order XXXVIII of the Rules in the nature of public,
"interest litigation seeking redressal of public injury,",
enforcement of a public duty or vindicating interest of public,
nature;,
(ii) Petitions under Article 32 of the Constitution seeking transfer of,
cases involving the State of Jammu and Kashmir.,
5. Advisory Jurisdiction --,
(i) Reference by the President under Article 143(1) of the,
Constitution read with Order XLII of the Rules on a question of,
law or fact of public importance;,
(ii) Reference by the President under Article 143(2) of the,
Constitution read with Order XLII of the Rules of a dispute of,
the kind mentioned in the proviso to Article 131 of the,
Constitution;,
(iii) Reference by the President under Article 317(1) of the,
Constitution read with Order XLIII of the Rules in relation to,
an inquiry for removal of the Chairman or any other Member of,
a Public Service Commission from his office on the ground of,
misbehaviour;,
(iv) Reference by the President under Section 14(1) of the Right to,
"Information Act, 2005 read with Order XLIII of the Rules;",
(v) Reference by the Governor under Section 17(1) of the Right to,
"Information Act, 2005, or any Statute under Order XLIII of the",
Rules;,
(vi) Reference under Order XLIV of the Rules by the Central,
Government or Statutory Tribunals under the Statutes;,
7,
"(vii) Reference under Section 257 of the Income Tax Act, 1961 read",
"with Order XLV of the Rules, by the Income Tax Appellate",
Tribunal through its President.,
6. Inherent and Plenary Jurisdiction --,
(i) Petitions under Section 3 of the Rules to Regulate Proceedings,
"for Contempt of the Supreme Court, 1975, read with Articles",
129 and 142 of the Constitution;,
(ii) Applications for review under Article 137 of the Constitution,
read with Order XLVII of the Rules;,
(iii) Curative petitions under Order XLVIII of the Rules as per law,
laid down in the case of Rupa Ashok Hurra vs. Ashok Hurra,
and Anr. [2002 (4) SCC 388] to prevent abuse of the process of,
the Court and cure gross miscarriage of justice;,
(iv) Applications under Section 2 of the Supreme Court [Decrees,
"and Orders] Enforcement Order, 1954.",
Note,
Article 129,
The Supreme Court shall be the court of record and has all the powers,
"of such a court, including the power to punish for contempt of itself.",
Article 131,
The Supreme Court has the original jurisdiction in any dispute,
between the Government of India and one or more States; or between,
the Government of India and any State or States on one side and one,
or more other States on the other; or between two or more States.,
8,
Article 132,
"An appeal shall lie to the Supreme Court from any judgment, decree",
"or final order, in a civil, criminal or other proceeding, if the High",
Court certifies under Article 134A that the case involves a substantial,
question of law as to the interpretation of the Constitution.,
Article 133,
"An appeal shall lie to the Supreme Court from any judgment, decree",
or final order in a civil proceeding of a High Court in the territory of,
"India, if the High Court certifies under Article 134A of the",
Constitution that the case involves a substantial question of law of,
"general importance and, in the opinion of the High Court, the said",
question needs to be decided by the Supreme Court.,
"Notwithstanding anything contained in this Article, no appeal",
"shall, unless Parliament by law or otherwise provides, lie to the",
"Supreme Court from the judgment, decree or final order of one Judge",
of a High Court.,
Article 134,
"An appeal shall lie to the Supreme Court from any judgment, final",
order or sentence in a criminal proceeding of a High Court in the,
"territory of India, if the High Court has, on appeal, reversed an order",
of acquittal of an accused person and sentenced him to death; or has,
withdrawn for trial before itself any case from any court subordinate,
"to its authority and has, in such trial, convicted the accused person and",
sentenced him to death; or if the High Court certifies under Article,
"134A that the case is a fit one for appeal to the Supreme Court, subject",
to the proviso thereunder.,
9,
Article 136,
Notwithstanding anything contained in Chapter IV of the,
"Constitution, the Supreme Court may in its discretion, grant special",
"leave to appeal from any judgment, decree, determination, sentence or",
"order in any cause or matter passed or made by any court or tribunal,",
except in relation to any court or tribunal constituted by or under any,
law relating to the armed forces.,
Article 136 does not confer a right of appeal on any party but it,
confers a discretionary power on the Supreme Court to interfere in,
suitable cases.,
The jurisdiction conferred by Article 136 is divisible into two,
stages; first stage is upto the disposal of prayer for special leave to file,
an appeal and the second stage commences if and when the leave to,
appeal is granted and special leave petition is converted into an,
appeal.,
"Under Article 136, the Supreme Court may reverse, modify or",
"affirm the judgment, decree or order appealed against while exercising",
its appellate jurisdiction and not while exercising the discretionary,
jurisdiction disposing of petition for special leave to appeal. The,
"doctrine of merger, therefore, applies to the former and not to the",
latter. Once leave to appeal has been granted and appellate jurisdiction,
"of Supreme Court has been invoked, the order passed in appeal would",
"attract the doctrine of merger; the order may be of reversal,",
modification or merely affirmation.,
On an appeal having been preferred or a petition seeking leave,
to appeal having been converted into an appeal before the Supreme,
"Court, the jurisdiction of the High Court to entertain a review petition",
"is lost thereafter, as provided by sub-rule (1) of Rule (1) of Order 47",
of the Code.,
10,
Article 137,
Subject to the provisions of any law made by the Parliament or any,
"rules made under Article 145, the Supreme Court shall have the power",
to review any judgment pronounced or order made by it.,
The Supreme Court has held that “by describing an,
"application as one for clarification or modification, though",
"it is one for review, a party cannot be permitted to",
circumvent or bypass the circulation procedure and,
indirectly obtain a hearing in the open court. The Court has,
further held that what cannot be done directly cannot be,
permitted to be done indirectly and that an application for,
"‘clarification’, ‘modification’ or ‘recall’ cannot be",
"entertained where, in sum and substance, the same is",
clever move for review [APSRTC and Others v. Abdul,
Kareem [2007 (2) SCC 466].,
Article 139A(1),
Where cases involving the same or substantially the same questions of,
law are pending before the Supreme Court and one or more High,
Courts or before two or more High Courts and the Supreme Court is,
satisfied on its own motion or an application made by the Attorney-,
General of India or by a party to any such case that such questions are,
"substantial questions of general importance, the Supreme Court may",
withdraw the case or cases pending before the High Court or the High,
Courts and dispose of all the cases itself:,
Provided that the Supreme Court may after determining the said,
questions of law return any case so withdrawn together with a copy of,
its judgment on such questions to the High Court from which the case,
"has been withdrawn and the High Court shall, on receipt thereof,",
proceed to dispose of the case in conformity with such judgment.,
11,
Article 139A(2),
"The Supreme Court may, if it deems it expedient so to do for the ends",
"of justice, transfer any case, appeal or other proceedings pending",
before any High Court to any other High Court.,
Article 141,
The law declared by the Supreme Court is binding on all courts within,
the territory of India.,
Article 142,
The Supreme Court may pass such decree or make such order as is,
necessary for doing complete justice in any cause or matter pending,
before it and it shall be enforceable throughout the territory of India in,
such manner as may be prescribed by or under any law made by,
"Parliament and, until provision in that behalf is so made, in such",
manner as the President may by order prescribe.,
Subject to the provisions of any law made in this behalf by,
"Parliament, the Supreme Court shall, as respects the whole of the",
"territory of India, have all and every power to make any order for the",
"purpose of securing the attendance of any person, the discovery or",
"production of any documents, or the investigation or punishment of",
any contempt of itself.,
Article 143,
"Where a question of law or fact, which is of public importance, has",
arisen or is likely to arise and if the President is of the view that it is,
"expedient to obtain the opinion of the Supreme Court upon it, he may",
"refer the question to it for consideration and the Supreme Court may,",
"after such hearing as it thinks fit, report to the President its opinion",
thereon.,
12,
Notwithstanding anything contained in the proviso to Article,
"131, the President may refer a dispute of the kind mentioned in the",
said proviso to the Supreme Court for opinion and the Supreme Court,
"shall, after such hearing as it thinks fit, report to the President its",
opinion thereon.,
Article 144,
All civil and judicial authorities in the territory of India shall act in,
aid of the Supreme Court.,
Article 145,
"Subject to the provisions of any law made by the Parliament, the",
"Supreme Court may, from time to time, with the approval of the",
"President, make rules for regulating generally the practice and",
procedure of the Court.,
Article 32,
The Supreme Court shall have power to issue directions or orders or,
"writs, including writs in the nature of habeas corpus, mandamus,",
"prohibition, quo warranto and certiorari, whichever may be",
"appropriate, for the enforcement of any of the rights conferred by Part",
III of the Constitution.,
"Under the Extra-ordinary Original Jurisdiction, a writ petition",
in the nature of public interest litigation can be filed in the Supreme,
Court.,
"The Supreme Court shall, inter alia, have powers to transfer any",
case relating to the State of Jammu and Kashmir under Article 32 of,
the Constitution. [Anita Kushwaha vs. Pushap Sudan (Transfer,
Petition (C) No. 1343 of 2008)],
Even after a death sentence has been confirmed and is not open,
"to review, the Supreme Court may, under Article 32 read with Article",
"21, commute the sentence of death into one of life imprisonment on",
13,
the ground of undue delay in execution of the death since it was,
confirmed. [Jumman vs. State of Uttar Pradesh [1991 (1) SCC 752].,
Note,
1. The matters of public interest generally include--,
(i) bonded labour matters;,
(ii) matters of neglected children;,
(iii) exploitation of casual labourers and non-payment of wages to,
them (except in individual cases);,
(iv) matters of harassment or torture of persons belonging to,
"Scheduled Castes, Scheduled Tribes and Economically",
"Backward Classes, either by co-villagers or by police;",
"(v) matters relating to environmental pollution, disturbance of",
"ecological balance, drugs, food adulteration, maintenance of",
"heritage and culture, antiques, forests and wild life;",
(vi) petitions from riot victims; and,
(vii) other matters of public importance.,
2. The matters of private nature which do not fall within the contours of,
public interest litigation shall include --,
(i) threat to or harassment of the petitioner by private persons;,
(ii) seeking enquiry by an agency other than local police;,
(iii) seeking police protection;,
(iv) landlord tenant dispute;,
(v) service matters;,
(vi) admission to medical or engineering colleges; and,
(vii) early hearing of cases pending in High Courts and subordinate,
courts.,
3. The petitions received by post are scrutinized as per the prescribed,
"guidelines* and only such of them, as are covered by the parameters",
"laid down therein, are placed before the Judge nominated for the",
purpose.,
* PIL Guidelines as at Annexure 1.,
14,
"4.(a) Letter petitions received by post, even though not in public interest,",
"can be treated as writ petitions, if so directed by the Judge nominated",
for the purpose.,
(b) The following individual cases can also be registered as writ petitions,
under Article 32 of the Constitution:,
(i) complaints about harassment or torture or death in jail or by,
police;,
"(ii) complaints of atrocities on women, such as harassment for",
"dowry, bride burning, rape, murder and kidnapping;",
(iii) complaints relating to family pensions; and,
(iv) complaints of refusal by police to register the case.,
"(c) In such cases, a Report from the concerned Authority shall be",
obtained before placing the matter before the Judge for consideration,
as to the registration of the case as a writ petition.,
Order XLVIII of the Rules,
After dismissal of a case in exercise of review jurisdiction under,
"Article 137 of the Constitution, by way of circulation, a curative",
petition can be filed under the inherent jurisdiction of the Court to,
"prevent abuse of its process and cure gross miscarriage of justice, as",
per the law laid down in the case of Rupa Ashok Hurra vs. Ashok,
Hurra and Anr. [2002 (4) SCC 388].,
15,
CHAPTER III,
CLASSIFICATION OF CASES,
A. The main cases shall ordinarily be classified and abbreviated as follows -,
1. Arbitration Petition [fc],
2. Civil Appeal [ac],
3. Contempt Petition (Civil) [cc],
4. Contempt Petition (Criminal) [cr],
5. Criminal Appeal [ar],
6. Election Petition [ec],
7. Original Suit [oc],
8. Petition for Special Leave to Appeal (Civil) [sc],
9. Petition for Special Leave to Appeal (Criminal) [sr],
10. Special Reference Case [lc],
11. Transferred Case (Civil) [nc],
12. Transferred Case (Criminal) [nr],
13. Transfer Petition (Civil) [tc],
14. Transfer Petition (Criminal) [tr],
15. Tax Reference Case [xc],
16. Writ Petition (Civil) [wc],
17. Writ Petition (Criminal) [wr],
18. Review Petition (Civil) [rc],
19. Review Petition (Criminal) [rr],
20. Curative Petition (Civil) [qc],
21. Curative Petition (Criminal) [qr],
1. Arbitration Petition – A petition under Section 11(5) of the,
"Arbitration and Conciliation Act, 1996, shall be registered as an",
Arbitration Petition.,
"2. Civil Appeal – Ordinarily, the following category of cases shall be",
registered as civil appeals:,
(1) appeals by certificate under Articles 132 and 133 of the,
Constitution read with Order XIX of the Rules;,
"(2) appeal, upon grant of special leave to appeal, under Article 136",
of the Constitution read with Order XXI of the Rules;,
"(3) appeal under Section 130E of the Customs Act, 1962;",
16,
"(4) appeal under Section 35L of the Central Excise and Salt Act,",
1944;,
"(5) appeal under Section 23 of the Consumer Protection Act, 1986;",
"(6) appeal under Section 27A of the Consumer Protection Act,",
1986;,
"(7) appeal under Section 19(1)(b) of the Contempt of Courts Act,",
1971;,
"(8) appeal under Section 38 of the Advocates Act, 1961;",
"(9) appeal under Section 116A of the Representation of People Act,",
1951;,
(10) appeal under Section 18 of the Telecom Regulatory Authority of,
"India Act, 1997;",
(11) appeal under Section 15Z of the Securities and Exchange Board,
"of India Act, 1992;",
"(12) appeal under Section 261 of the Income Tax Act, 1961;",
"(13) appeal under Section 53T of the Competition Act, 2002;",
(14) appeals under Sections 30 and 31 of the Armed Forces Tribunal,
"Act, 2007;",
"(15) appeal under Section 125 of the Electricity Act, 2003;",
"(16) appeal under Section 29(1) of the Wealth Tax Act, 1957;",
"(17) appeal under Section 22 of the National Green Tribunal Act,",
2010;,
(18) appeal under Section 10 of the Special Court (Trial of offences,
"relating to Transaction in Securities) Act, 1992;",
"(19) appeal under Section 423 of the Companies Act, 2013;",
(20) appeal under Sections 17 and 18 of the Airport Economic,
"Regulatory Authority of India Act, 2008.",
3. Contempt Petition (Civil) – A petition under Rule 3 of the,
Rules to Regulate Proceedings for Contempt of the Supreme,
"Court, 1975, read with Section 2(b) of the Contempt of Courts",
"Act, 1971, and Articles 129 and 142(2) of the Constitution shall",
be registered as a Contempt Petition (Civil).,
4. Contempt Petition (Criminal) – A petition under Rule 3 of the,
17,
Rules to Regulate Proceedings for Contempt of the Supreme,
"Court, 1975, read with Section 2(c) of the Contempt of Courts",
"Act, 1971, and Articles 129 and 142(2) of the Constitution shall",
be registered as a Contempt Petition (Criminal).,
"5. Criminal Appeal – Ordinarily, the following cases shall be registered",
as criminal appeals --,
(1) appeals by certificate under Articles 132(1) and 134(1)(c),
read with Order XX of the Rules;,
(2) appeal under Article 134(1)(a) and (b) or made any other,
provision of law under Order XX of the Rules;,
"(3) appeal, upon grant of special leave to appeal, under Article",
136 of the Constitution read with Order XXII of the Rules;,
(4) appeals under Sections 30 and 31 of the Armed Forces,
"Tribunal Act, 2007;",
(5) appeal under Section 10 of the Special Court (Trial of,
"Offences relating to Transaction in Securities) Act, 1992;",
(Criminal);,
(6) appeal under Section 374 of the Code of Criminal,
"Procedure, 1973;",
(7) appeal under Section 380 of the Code of Criminal,
"Procedure, 1973;",
(8) appeal under Section 2 of the Supreme Court (Enlargement,
"of Criminal Appellate Jurisdiction) Act, 1970, as amended",
by the Supreme Court (Enlargement of Criminal Appellate,
"Jurisdiction) Amendment Act, 1972, read with Section 379",
"of the Code of Criminal Procedure, 1973;",
(9) appeal under Section 19(1)(b) of the Contempt of Courts,
"Act, 1971.",
6. Election Petition – A petition under Part III of the Presidential and,
"Vice-Presidential Elections Act, 1952 (31 of 1952) read with Article",
71 of the Constitution and Order XLVI of the Rules relating to,
doubts and disputes in relation to the election of a President or Vice-,
President shall be registered as an Election Petition.,
18,
7. Original Suit – A suit filed under Article 131 of the Constitution,
shall be registered as Original Suit in relation to any dispute--,
(i) between the Government of India and one or more States; or,
(ii) between the Government of India and any State or States on,
one side and one or more other States on the other; or,
(iii) between two or more States.,
8. Petition for Special Leave to Appeal – A petition filed under,
Article 136 of the Constitution from an order of the High Court,
refusing to grant certificate under Article 134A of the Constitution or,
"in any other case from any judgment, decree, determination, sentence",
"or order passed or made by any Court or Tribunal, except relating to",
armed forces. It may be either civil or criminal.,
"9. Special Reference Case – Ordinarily, the following cases shall be",
registered as References:,
1. Reference under Articles 143(1) and (2) of the Constitution;,
2. Reference under Article 317(1) of the Constitution;,
"3. Reference under Section 11 of the Competition Act, 2002;",
"4. Reference under Section 14(1) of the Right to Information Act,",
2005;,
"5. Reference under Section 17(1) of the Right to Information Act,",
2005;,
"6. Reference under Section 257 of the Income Tax Act, 1961;",
7. Reference made by Central Government or Statutory Tribunals,
under Order XLIV of the Rules;,
"8. Reference under Section 27(3A) of the Wealth Tax Act, 1957;",
"9. Reference under Section 11(3) of the Companies Act, 2002;",
10. Reference under Section 7(1) of the Prasar Bharati,
"(Broadcasting Corporation of India) Act, 1990.",
10. Transferred Case – A case under Article 139A(1) of the Constitution,
"read with Order XL of the Rules, upon being transferred by the High",
"Court to this Court, shall be registered as a Transferred Case.",
19,
11. Transfer Petition –,
(i) petition filed under Article 139A(1) of the Constitution of,
India shall be registered as Transfer Petition. It may be either,
civil or criminal;,
(ii) petition filed under Article 139A(2) of the Constitution of,
India shall be registered as Transfer Petition. It may be either,
civil or criminal;,
(iii) petition filed under Section 25 of the Code of Civil,
"Procedure, 1908, shall be registered as Transfer Petition",
(Civil);,
(iv) petition filed under Section 406 of the Code of Criminal,
"Procedure, 1973, shall be registered as Transfer Petition",
(Criminal); and,
(v) petition filed under Section 11 of the Terrorist Affected,
"Areas (Special Courts) Act, 1984, shall be registered as",
Transfer Petition (Criminal).,
Note,
A transfer petition seeking transfer of a case relating to the State of,
Jammu and Kashmir shall be filed in terms of the ratio laid down in,
Anita Kushwaha vs. Pushap Sudan (Transfer Petition (C) No. 1343 of,
2008).,
12. Writ Petition –,
(i) petition under Article 32 of the Constitution relating to an,
infringement of a right in Part III of the Constitution in a civil,
"case, other than habeas corpus, shall be registered as Writ",
Petition (Civil);,
(ii) petition under Article 32 of the Constitution relating to a,
"criminal matter, including habeas corpus, shall be registered as",
Writ Petition (Criminal);,
(iii) petition under Article 32 of the Constitution of India relating,
20,
to public interest litigation shall be registered as Writ Petition,
(PIL). It may be either civil or criminal;,
(iv) petition under Article 32 of the Constitution seeking transfer of,
a case relating to the State of Jammu and Kashmir and shall be,
registered as Writ Petition (Tr.). It may be either civil or,
criminal;,
13. Any other case filed in this Court which does not fall under any of,
the above categories may be classified and registered in accordance,
with or under any other provision of law or orders of the Court or,
special or general orders of the Chief Justice passed in that behalf.,
14. Review Petition – A petition under Article 137 of the Constitution,
read with Order XLVII of the Rules shall be registered as a Review,
Petition. It may be either civil or criminal.,
15. Curative Petition – A petition under Order XLVIII of the Rules,
shall be registered as a Curative Petition. It may be either civil or,
criminal,
General,
The cases arising out of the Terrorist and Disruptive Activities,
"(Prevention) Act, 1987, or the Monopolies and Restrictive Trade",
"Practices Act, 1969, or under any other law, which have since been",
"repealed, have not been indicated in the Chapter though cases arising",
"therefrom, prior to repeal, are pending consideration of the Court.",
21,
CHAPTER IV,
CONSTITUTION AND JURISDICTION OF BENCHES,
I. Single Bench,
"1. Under Order V Rule (2) of the Rules, the powers of the Court in",
relation to the following matters may be exercised by a Single Judge sitting,
"in Chambers, namely:",
(1) Application by advocate-on-record for leave to withdraw or for,
change or discharge of advocate-on-record.,
(2) Application for leave to compromise or discontinue an appeal where,
permission was granted to sue as an indigent person.,
(3) Application for striking out or adding party or for intervention in a,
"suit, appeal or other proceeding.",
(4) Application for separate trials of causes of action.,
(5) Application for separate trials to avoid embarrassment.,
(6) Rejection of plaint.,
(7) Application for setting down for judgment in default of written,
statement.,
(8) Application for better statement of claim or defence.,
(9) Application for particulars.,
(10) Application for striking out any matter in a pleading.,
(11) Application for amendment of pleading and for enlargement of time to,
amend any pleading.,
(12) Application to tax bills returned by the Taxing Officer.,
(13) Application for review of taxation.,
"(14) Application for enlargement or abridgement of time, except",
application for condonation of delay in filing Special Leave Petitions.,
(15) Application for issue of commissions.,
(16) Application for assignment of security Bonds.,
22,
(17) Questions arising in taxation referred by the Taxing Officer.,
(18) Application for orders against clients for payment of costs.,
(19) Application for taxation and delivery of bill of costs and for delivery,
by an advocate of documents and papers.,
(20) Application for registration of advocates as advocates on record.,
(21) Application for leave to proceed as an indigent person.,
(22) Application for grant of bail where the petitioner is confined in jail for,
offence punishable with imprisonment upto seven years.,
(23) Application for stay of execution of a sentence or order in criminal,
proceedings.,
(24) Application by accused persons in custody for being produced before,
the Court at the hearing of the appeal.,
(25) Consent application in interlocutory matters.,
(26) Application by accused persons for engagement of advocate under,
rule 16 of Order XX.,
(27) Fixing the remuneration of a guardian ad litem.,
"(28) Summons for non-prosecution, which includes the power of dismissal",
for non-prosecution.,
(29) Office Report on default.,
(30) Application for exemption from paying court fee or extension of time,
"for paying court fee or for furnishing undertaking, bank guarantee or",
security.,
"(31) Application for substitution, application for condonation of delay in",
seeking substitution and application involving setting aside abatement.,
(32) Application for condonation of delay in re-filing where the delay,
exceeds 60 days from the date of notifying the defects.,
(33) Application for refund of security.,
"(34) Application for withdrawal of any appeal, petition or suit with the",
consent of all the appearing parties or where the other side has not,
appeared.,
23,
"(35) Application for exemption from surrendering, provided that not more",
than one opportunity be granted for surrendering. In case of refusal,
"and/or if accused do(es) not surrender, the matter be placed before the",
Hon’ble Judge in Chambers for non-prosecution.,
(36) Issue of fresh summons and notices.,
"(37) Application of a person who is not a party to the case, appeal or",
"matter, for inspection or search or grant of copies for good cause",
shown.,
(38) Application by third parties for return of documents.,
(39) Application to appoint or discharge a next friend or guardian of a,
minor or a person of unsound mind and direct amendment of the,
record thereon.,
(40) Application for consolidation of appeals and writ petitions for,
"purposes of hearing, and preparation of record.",
(41) Application for amendment of pleadings with the consent of all the,
"appearing parties, or where the other side has not appeared.",
Note :,
(i) “Office Report on Default” includes cases under Order III Rule,
8(vii) proviso of the Rules.,
(ii) An appeal shall lie to the Judge in Chambers against the order,
of the Registrar under Order V Rule 1 and Order VIII Rule 6(3),
and (4) of the Rules within fifteen days from the date of such,
order.,
(iii) The Judge in Chambers may at any time adjourn any matter and,
lay the same before the Court.,
"2. In exercise of powers conferred by Order II Rule 6 of the Rules, the",
Chief Justice may direct matters of urgent nature to be heard by a,
Judge sitting singly during summer vacation or winter holidays.,
"3. Under Order VI Rule 6 of the Rules, the Vacation Judge sitting",
"singly may, in addition to exercising all the powers of a Judge in",
"Chambers under the Rules, exercise the powers of the Court in",
"relation to the following matters, namely:",
24,
(i) Applications for special leave to appeal in urgent cases,
where interim relief is prayed for subject to the condition,
that the Vacation Judge shall not decide such a petition if it,
raises substantial question of law as to the interpretation of,
the Constitution.,
(ii) Applications for stay of execution of a decree or order or,
stay of proceedings in civil matters.,
(iii) Applications for transfer of cases under Section 406 of the,
"Code of Criminal Procedure, 1973 (2 of 1974).",
(iv) Applications for stay of proceedings in criminal matters.,
(v) Applications under Article 32 of the Constitution of an,
urgent nature which do not involve a substantial question of,
law as to the interpretation of the Constitution.,
(vi) Issue of a rule nisi in urgent applications under Article 32 of,
the Constitution which involve a substantial question of law,
as to the interpretation of the Constitution.,
(vii) Applications of an urgent nature for transfer of cases under,
"Section 25 of the Code of Civil Procedure, 1908 (5 of 1908).",
(viii) Issue of notice in applications of an urgent nature under,
Article 139A(1) of the Constitution; and,
(ix) Applications of an urgent nature for transfer of cases under,
Article 139A(2) of the Constitution.,
II. Division Bench,
"(i) Under Order VI Rule 1 of the Rules, subject to other provisions of",
"the Rules, every cause, appeal or matter shall be heard by a Bench",
consisting of not less than two Judges nominated by the Chief,
Justice.,
"(ii) Every cause, appeal or other proceedings arising out of a case in",
which death sentence has been confirmed or awarded by the High,
Court shall be heard by a Bench consisting of not less than three,
Judges.,
25,
"(iii) In exercise of powers conferred by Order II Rule 6 of the Rules,",
the Chief Justice may direct matters of urgent nature to be heard,
by a Division Court during the vacation.,
III. Constitution Bench,
(i) Every case involving a substantial question of law as to the,
interpretation of the Constitution under Article 145(3) or any,
Reference made under Article 143 of the Constitution shall be,
heard by a Bench consisting of not less than five Judges.,
(ii) Every petition calling in question the election of the President and,
Vice-President under Article 71 of the Constitution read with Part,
"III of the Presidential and Vice-Presidential Elections Act, 1952,",
shall be posted before a Bench of five Judges under Order XLVI of,
the Rules.,
"(iii) The Chief Justice may, from time to time, constitute a Bench",
consisting of five or more Judges for the purpose of hearing any,
"other cause, appeal or matter.",
IV. Reference to Larger Bench,
"(i) A Division Bench of two or more Judges may refer any cause,",
"appeal or other proceeding, pending before it, to a larger Bench of",
not less than five Judges involving a substantial question of law as,
"to the interpretation of the Constitution, as per proviso to Article",
145(3) of the Constitution.,
"(ii) Where, in the course of hearing of any cause, appeal or other",
"proceeding, the Division Bench considers that the case should be",
"dealt with by a larger Bench, it shall refer the case to the Chief",
"Justice, who shall thereupon constitute such a Bench for hearing it.",
"(iii) If a Bench of less than three Judges, hearing a cause, appeal or",
"matter, is of the opinion that the accused should be sentenced to",
"death, it shall refer the case to the Chief Justice, who shall",
26,
thereupon constitute a Bench of not less than three Judges for,
hearing it.,
"(iv) After the Reference is answered by a larger Bench, wherever",
"required, the case shall be placed before the Chief Justice for listing",
before an appropriate Bench for hearing and decision in accordance,
with the opinion of the larger Bench.,
V. Review Petition,
(i)(a) An application for review under Order XLVII of the Rules read with,
"Article 137 of the Constitution and shall, as far as practicable, be",
circulated to the same Judge or Bench of Judges that delivered the,
judgment or order sought to be reviewed:,
Provided that in case of non-availability of a Judge or Judges of the,
"Bench, by reason of retirement or otherwise, an application for",
"review shall be heard by a Judge or Bench of Judges, as may be",
ordered by the Chief Justice.,
"(b) Unless otherwise ordered by the Court, an application for review",
shall be disposed of by circulation without any oral arguments.,
"In the case of Mohd. Arif @ Ashfaq vs. The Registrar,",
"Supreme Court of India & Others in 2014 9 SCC 737, the",
Supreme Court held that :-,
“........in review petitions arising out of those cases where,
"the death penalty is awarded, it would be necessary to",
accord oral hearing in the open court......”,
(c) Where an application for review of any judgment and order has,
"been made and disposed of, no further application for review shall",
be entertained in the same matter.,
"(ii)(a) An application seeking a review, clarification or modification of",
"an award, passed by a Bench of Lok Adalat, shall be placed",
before the same Bench at any subsequent Lok Adalat for,
consideration.,
27,
(b) Where any of the members comprising such Bench is/are not,
"available, the application shall be placed before the Chief",
Justice for constitution of a Bench of Lok Adalat for,
consideration.,
"(c) In case settlement, by consent, is not arrived at on the application",
"for review, clarification or modification before the Lok Adalat, the",
"same shall be placed, as per roster, before the Division Bench or",
as ordered by the Chief Justice.,
VI. Curative Petition,
A curative petition under Order XLVIII of the Rules shall be first,
"circulated to, and heard by, a Bench of the three senior-most Judges",
"and the Judges, who passed the judgment or order complained of, if",
available.,
"Unless otherwise ordered by the Court, a curative petition shall",
"be disposed of by circulation, without any oral arguments.",
If the Bench before which the petition was circulated,
"concludes, by a majority, that the matter needs hearing, then it shall",
"be listed before the same Bench, as far as possible.",
VII. General,
(1)Part-heard case - A part-heard case shall be listed before the same,
Bench in seisin of the case:,
Provided that if the case could not be disposed of on account of,
the retirement or non-availability of a Judge or released from part-,
"heard, it shall be listed for hearing before a Bench, subject to any",
directions of the Chief Justice or as per roster.,
(2)Contempt Petition (Civil) - A contempt petition under Rule 3 of the,
"Rules to Regulate Proceedings for Contempt of the Supreme Court,",
"1975, read with Articles 129 and 142(2) of the Constitution",
complaining disobedience or non-compliance of a judgment/order,
28,
passed by the Court or wilful breach of an undertaking given to a Court,
shall be listed before the Bench which passed the judgment/order,
alleged to have been disobeyed and not complied with.,
(3)Contempt Petition (Criminal) - A contempt petition under Rules (2),
and (3) of the Rules to Regulate Proceedings for Contempt of the,
"Supreme Court, 1975, read with Articles 129 and 142(2) of the",
Constitution shall be listed before the Bench where contempt was,
committed in view or presence or hearing of the Court or as per the,
directions of the Chief Justice.,
"Notwithstanding anything contained in this Chapter, the",
"Chief Justice may, by a special or general order, direct a particular",
class or classes of cases to be listed before a particular Bench.,
29,
CHAPTER V,
"POWERS, DUTIES AND FUNCTIONS OF THE REGISTRAR",
"The Registrar shall have the following powers, duties and functions, subject",
to any further special or general orders of the Chief Justice:,
"1. to exercise the functions of the Secretary General, in his absence, upon",
being nominated by the Chief Justice;,
2. to order affixation of seal on a certified copy issued by the Court;,
"3. to keep a list of all cases pending before the Court, and shall, at the",
"commencement of each term, prepare, publish and port on the official",
"website, a list of all cases ready for regular hearing in each class",
"separately, to be called the ‘Terminal List’;",
"4. to prepare, publish and port on the official website at the end of each",
"week, a list of cases, from out of the Terminal List, to be heard in the",
"following week, as far as possible in the order in which they appear in",
"Terminal List, subject to the directions of the Chief Justice, if any, and out",
"of the Weekly List, shall publish at the end of each day, a Daily List of",
cases to be heard by the Court on the following day;,
"5. to prepare, publish and port on the official website, Advance List, Daily",
List and Supplementary List of the admission hearing cases;,
"6. to publish such other Lists, subject to general or special orders of the",
Chief Justice;,
"7. to require any plaint, petition of appeal, petition or other proceeding",
presented to the Court to be amended in accordance with the practice and,
procedure of the Court or to be represented after such requisition as the,
Registrar is empowered to make in relation thereto has been complied,
with;,
"8. to fix the date of hearing of appeals, petitions or other proceedings and",
issue notices thereof;,
9. to settle the index in cases where the record is prepared in the Court;,
10. to make an order for change of advocate on-record with the consent of the,
advocate-on-record;,
11. to direct any formal amendment of record;,
30,
12. to grant leave to inspect and search the records of the Court and order the,
"grant of copies of documents to parties to proceedings, without interfering",
or dispensing with any mandatory requirement of the Rules;,
13. to allow from time to time on a written request any period or periods not,
exceeding twenty eight days in aggregate for furnishing information or for,
"doing any other act necessary to bring the plaint, appeal or other",
proceeding in conformity with the Rules and practice of the Court;,
14. to require the Supreme Court Legal Services Committee to assign an,
advocate in a petition/appeal to a party in-person;,
"15. to interact with a party, who wants to appear and argue the case in-person,",
and give opinion by way of office report whether the party in-person will,
be able to give necessary assistance to the Court for proper disposal of the,
case or an advocate may be appointed as amicus curiae;,
16. to communicate to all the High Courts and the Secretary to the Bar,
Council of India as also the Secretary of the State Bar Council concerned,
"the name of an advocate, who has been designated as a senior advocate",
and the date on which he was so designated;,
17. to publish list of touts under Order IV Rule 14 of the Rules and port it on,
"the official website as also, by general or special order, exclude such",
persons from the precincts of the Court whose names are included in the,
list of touts;,
"18. to pass orders, for reasons to be recorded in writing, declining to register a",
"document, where the party fails to take any steps for removal of the defect",
within a period not exceeding twenty eight days in aggregate under Order,
VIII Rules 6(3) and (4) of the Rules;,
"19.(i) to decide the question of, and determine, deficient or proper amount of the",
court fee payable and if the court fee paid on account of bona fide mistake,
"is insufficient, to call upon that party to make good the deficiency within a",
period not exceeding three months;,
(ii) to make a declaration and forward a requisition for recovery of deficient,
"court fee to the Central Government, from the person liable to pay, as",
"arrear of land revenue, if the deficiency is not made good within a period",
of three months;,
"20. to allow a party to any cause, appeal or matter, on an application, to search",
"or inspect all pleadings and other documents or records in the case, on",
payment of the prescribed fee and charges;,
31,
"21. to permit, in his discretion, any record to be sent to any Court, Tribunal or",
"other public Authority on requisition received from such Court, Tribunal",
or Authority;,
"22. to reconstruct the record with the approval of the Chief Justice, in case the",
record is lost or irretrievably misplaced;,
23. to settle the decree in terms of Order XII of the Rules;,
"24. to certify the accounts every month, duly checked and tallied with the",
monthly statements of receipts and payments received from the Pay and,
Accounts Officer of the Court;,
25. to refuse to receive a petition on the ground that it discloses no reasonable,
cause or is frivolous or contains scandalous matter under Order XV Rule 5,
of the Rules;,
"[The petitioner may, within fifteen days, impugn the order of the",
"Registrar, by way of motion, to the Court.]",
"26. to report to the Court, in the form of special case, as to the nature of the",
proceedings based on a question of law and the record that may be,
necessary for discussion of the case under Order XIX Rule 5 of the Rules;,
27. to issue summons to show cause before the Court why the appeal should,
"not be dismissed for non-prosecution, if the appellant is not prosecuting",
the appeal with due diligence;,
"28. to pass orders, who is the proper person to be substituted or entered on the",
"record in place of, or in addition to, the party on record and the name of",
such person shall thereupon be substituted or entered on the record:,
Provided that no such order of substitution shall be made where a,
question arises whether or not the person is the legal representative of the,
deceased party or a question involving setting aside the abatement of the,
cause is involved.,
29. to prepare roster under the directions of the Chief Justice;,
30. to accept Bank Guarantee furnished by a party “till the disposal of the,
case” under Form No.27 appended to the Rules;,
31. to order an engagement of an advocate from the panel of the Supreme,
Court Legal Services Committee or assign a panel advocate maintained by,
the Registry at the cost of the State in a jail petition/appeal;,
32,
"32. to call, wherever necessary, from the proper officer of the Court appealed",
"from, the relevant documents for determination of the case, upon receipt",
of the jail petition/appeal;,
"33. to direct in which of the newspapers publication, referred to in Order V",
"Rule 20 and in the proviso to Rule 9A of Order XLV of the Code, shall be",
"made, unless specifically directed by the Court;",
34. to direct issue of notice by Dasti;,
35. to give notice to the Attorney General for India on receipt of a Reference,
under Article 143 of the Constitution to appear before the Court on a day,
specified in the notice to take the directions of the Court as to the parties,
who shall be served with notice of such Reference;,
36. to transmit to the President the Report of the Court after hearing of the,
Reference under Article 143 of the Constitution;,
"37. to give, in a Reference under Order XLIII of the Rules, notice to the",
person sought to be removed from the concerned office and to the,
Attorney General for India or the Advocate General of the particular State,
"or to such person as the Statute under which the Reference is made, so",
"provides, to appear before the Court on a day specified in the notice to",
take directions of the Court in the matter of the inquiry in a Reference,
under Article 317(1) of the Constitution or any Statute or a Reference,
made by the Governor under any Statute;,
"38. to record evidence in a Reference, except under Article 143 of the",
"Constitution, and in original suit under Article 131 of the Constitution,",
wherever necessary;,
39. to place before the Chief Justice the Reference under Section 257 of the,
"Income Tax Act, 1961, for the purpose of assigning the case to a Bench of",
not less than three Judges;,
40. to transmit a copy of the order made in a Reference under Section 257 of,
"the Income Tax Act, 1961, to the Income Tax Appellate Tribunal under the",
seal of the Court;,
41. (a) to receive election petition under Order XLVI of the Rules relating to,
the election of the President and Vice- President under Part-III of the,
"Presidential and Vice-Presidential Elections Act, 1952;",
33,
"(b) to require the petitioner to deposit a sum of Rs. 50,000/-, in cash or by",
Bank draft either with himself or an officer nominated by him as security,
for the payment of all costs that may become payable by the petitioner;,
(c) to require an affidavit as regards service of notice on the Secretary to,
"the Election Commission, the Returning Officer and to the Attorney",
General for India to be filed with him within five days of the presentation,
"of the petition or within such further time, as the Court may allow;",
(d) to send a copy of the order made in the election petition to the Central,
Government for publication in the official gazette;,
"42. to receive, register and number a plaint presented to him and to sign the",
"list of documents annexed thereto, if, he on examination, finds it to be",
correct;,
43. to consider an application to be excused from compliance with the,
requirements of any of the Rules under Order LV of the Rules and to take,
instructions of the Judge in Chambers thereon and communicate the same,
"to the parties but, if, in his opinion, it is desirable that the application",
"should be dealt with in open Court, he may direct the applicant to serve",
the other party with a notice of motion returnable before the Court;,
44. (a) to direct any paper assigned to Part II to be transferred to Part I for,
being preserved permanently under Order LVI of the Rules;,
"(b) to decide, on a reference being made, the Part under which a record,",
"which do not fall either under Part I or Part II as classified in the Rules,",
should be included;,
45. to decide any dispute regarding subject category and valuation;,
46. to sign warrants of arrest; bond and bail bond after arrest under a warrant;,
"and warrant of commitment for contempt in Form Nos. II, III and IV",
appended to the Rules to Regulate Proceedings for Contempt of the,
"Supreme Court, 1975;",
47. to require Additional Registrar/Deputy Registrar to submit report as,
regards examination of files relating to ‘Not Ready’ cases and directions,
and guidance given to the subordinate officers/officials to make them,
‘Ready’ for being submitted to the Secretary General;,
"48. to pass orders to ‘Lodge’ a letter petition if, on scrutiny, the same is not",
found to be covered under the Public Interest Litigation guidelines;,
34,
49. to perform any other duties as may be assigned by the Secretary General,
or the Chief Justice.,
Taxing Officer,
The Chief Justice may appoint the Registrar or such other officer as the Taxing,
"Officer of the Court, who shall decide, inter alia, the following questions relating",
to the court fee:,
"(i) Where, in his opinion, a fee ought to be allowed for any matter not",
"provided for in the Rules or a question arises in taxation, he may refer",
"such matter to the Judge in Chambers for orders, wherever he considers it",
necessary.,
"(ii) Wherever, at the stage of scrutiny, a question as regards proper court fee is",
"raised and the document is insufficiently stamped, he shall decide such",
question before the document or the proceeding is acted upon in the,
Registry.,
"(iii) Where, during the course of pendency of a suit, appeal or proceedings, if,",
"on account of mistake or inadvertence, a document which ought to be",
stamped in a certain manner has been received and acted upon without it,
"being stamped or that the court fee paid thereon initially was insufficient,",
"he, after hearing the party, shall record a declaration to that effect and",
determine the amount of deficiency in court fee.,
"(iv) If the court fee paid is insufficient, he, after hearing the advocate on-",
"record or the party in-person, as the case may be, shall decide the dispute",
"and, if required, call upon the party concerned to make good the",
deficiency within a period not exceeding three months in any case.,
"(v) If, after the conclusion of the proceedings, the deficiency is not made",
"good within three months of the declaration made, he shall forward a",
requisition for recovery of the deficient court fee to the Central,
"Government, which shall recover the amount from the person liable to pay",
as arrear of land revenue.,
"(vi) He shall allow all such costs, charges and expenses as appear to him to",
have been necessary or proper for the attainment of justice or for,
"defending the rights of any party, and shall not allow any costs, charges",
and expenses which appear to him to have been incurred or increased,
unnecessarily or through negligence or mistake.,
35,
Powers under Order V Rule 1 of the Rules,
The Registrar shall exercise powers of the Court under Order V Rule 1 of the,
"Rules in relation to the following matters, namely:",
(1) Application for discovery and inspection.,
(2) Application for delivery of interrogatories.,
"(3) Application for substituted service, or for dispensing with service of",
notice of the appeal on any of the respondents to the appeal under Rule 7,
of Order XIX.,
"(4) Application for time to plead, for production of documents, and generally",
"relating to the conduct of cause, appeal or matter save those coming under",
Rule 2 of the Order.,
(5) Application for leave to take documents out of the custody of the Court.,
(6) Questions arising in connection with the payment of court fees.,
(7) Application for the issue of a certificate regarding any excess court fee,
paid under a mistake.,
(8) Application for requisitioning records from the custody of any Court or,
other authority.,
(9) Application for condoning delay in paying deficit court fees.,
"(10) Application for condonation of delay in filing statement of case, provided",
"that where the Registrar does not think fit to excuse the delay, he shall",
refer the application to the Court for Orders.,
(11) Application for appointment and for approval of a translator or interpreter.,
(12) Application for withdrawal of appeal by an appellant prior to his lodging,
the petition of appeal.,
(13) Application for production of documents outside Court premises.,
(14) Application for payment into Court.,
"(15) Application for payment out of Court of money or security, or interest or",
dividend on securities.,
(16) Application for extending returnable dates of warrants.,
"(17) Application for refund of security deposit or part thereof, or for payment",
out of security deposit.,
(18) Application for directions regarding preparation of record.,
36,
"(19) Application for exemption from filing of certified copies of judgments,",
"decrees, orders, certificates or orders granting certificate:",
Provided that application for exemption from filing of certified,
copies of judgments or orders accompanying a special leave petition shall,
be posted before the Court along with the Special Leave Petition.,
"(20) Application for condonation of delay in re-filing, provided the delay does",
not exceed 60 days from the date of notifying the defects.,
(21) Application for condonation of delay in filing process fee.,
"(22) Application for extension of time for filing pleadings, provided that the",
Registrar shall not grant more than one extension for the purpose,
exceeding four weeks.,
(23) Application for cancellation of date on the written joint request of the,
"appearing parties, provided the matter has not appeared in the final cause-",
"list, on the date of filing of application.",
(24) Office Report for renewal of Fixed Deposit Receipts and Bank,
"Guarantees, subject to directions otherwise by the Court.",
(25) Application for exemption from filing official translation.,
(26) Application for exemption from filing process fee and/or spare copies.,
(27) All uncontested Interlocutory Applications of formal nature.,
(28) Any matter which in accordance with orders or directions issued by the,
"Court, is required to be dealt with by the Registrar.",
(29) Imposing costs on the party in default of compliance of the orders passed,
by the Registrar.,
(30) Pre-final hearing matter to certify that the matter is ready in all respects to,
list the same before the Court for final hearing.,
Note,
"The Registrar may, and if so directed by the Judge in Chambers, shall, at any",
time adjourn any matter and lay the same before the Judge in Chambers.,
37,
CHAPTER VI,
ROSTER,
1. The roster shall be prepared by the Registrar (J-I) under the orders of,
the Chief Justice. It may contain general or special instructions regarding,
assignment/allocation of work to a Bench and includes allocation of work,
"of a Bench, on account of non-availability, to another Bench.",
"2. In order to meet contingencies, the Chief Justice may, from time to",
"time, direct the Registrar (J-I) to prepare roster instructions or",
amendments for re-allocation of judicial work.,
3. The roster instructions and amendments shall be prepared in such,
a manner so as to ensure that no judicial time is wasted.,
"4. Where a Bench directs listing of a case before another Bench,",
"particular Bench, appropriate Bench or larger Bench, as the case may",
"be, the Registrar (J-I) shall place the matter before the Chief Justice for",
orders.,
38,
CHAPTER VII,
WORKING HOURS AND VACATION,
A. Court,
"1. The Court shall sit in two terms annually, first commencing from",
the termination of the summer vacation and ending with the day,
"immediately preceding such day in December, as the Court may fix",
for the commencement of the Christmas and New Year holidays;,
and the second commencing from the termination of the Christmas,
and New Year holidays and ending with the commencement of the,
summer vacation.,
"2. The Benches, ordinarily, sit from 10.30 a.m. to 4.00 p.m. on",
"Tuesday, Wednesday and Thursday and from 10.30 a.m. till the",
work is over on Monday and Friday.,
"3. The Court shall not, ordinarily, sit on Saturday, nor any other day",
notified as Court holiday in the Official Gazette.,
"Provided that the Court may sit on a Saturday, holiday or",
"after Court hours on a working day, to hear a matter of urgent",
nature under the orders of the Chief Justice.,
B. Offices of the Court,
"1. Except during vacation and on Saturdays and holidays, the offices",
"of the Court shall, subject to any order of the Chief Justice, remain",
open from 10.00 a.m. to 5.00 p.m. but only work of urgent nature,
shall be admitted after 4.30 p.m.,
"2. Except on days which are holidays, the offices of the Court shall",
remain open from 10.00 a.m. to 1.00 p.m. on Saturdays but only,
work of urgent nature be admitted after 12.00 noon.,
"3. A counter, however, shall remain open from 5:00 p.m. to 7:00 p.m.",
for the purpose of filing of fresh cases where limitation expires on,
the date of filing.,
39,
C. Vacation Court,
"1. The Chief Justice may appoint one or more Judges to hear, during",
"summer vacation or winter holidays, all matters of urgent nature",
"which, under the Rules, may be heard by a Judge sitting singly, and,",
"wherever necessary, may likewise appoint a Division Court for the",
"hearing of such cases during the vacation, which are required to be",
heard by a Bench of Judges.,
2. The Division Courts shall sit regularly during summer vacation to,
hear urgent admission matters as well as old regular hearing cases,
identified by the Registry.,
"3. The Registrar shall prepare, publish and port on the website the",
Advance List of such cases/matters.,
"4. Ordinarily, urgent admission hearing cases shall be heard on",
"Mondays and left over matters, if any, be included in the list of the",
following working day. Old regular hearing cases be ordinarily,
heard from Tuesday to Friday.,
5. No admission hearing case be entertained and considered for listing,
"during vacation or holidays, unless it is, inter alia, accompanied by",
an affidavit indicating all the material facts necessary for formation,
"of opinion about urgency, such as:",
a) nature of the matter;,
"b) date of the impugned order, if any;",
"c) reason for not filing it before the vacation/holidays, if the",
impugned order was made or the cause of action arose on an,
earlier date;,
d) latest date upto which the matter can be heard in view of the,
urgency indicated; and,
e) nature of interim order sought in the matter.,
6. The following cases shall be considered as cases of urgent,
nature:,
(i) cases in which death penalty has been awarded;,
(ii) petitions for habeas corpus and matters relating to it;,
(iii) cases relating to imminent apprehension of demolition of,
40,
property;,
(iv) cases relating to dispossession/eviction;,
(v) cases relating to violation of human rights;,
(vi) cases relating to and of public importance; and,
(vii) cases seeking anticipatory bail and cases filed against order,
refusing/granting bail.,
7. The following category of cases shall not be treated as cases of,
urgent nature for listing during vacation or holidays:,
(i) cases arising out of interlocutory orders;,
(ii) cases relating to remand orders;,
"(iii) cases relating to pre-deposit of tax, penalty, etc., under",
specified statutes;,
(iv) cases arising out of life sentence or sentences for more than,
one year;,
"(v) service matters involving transfer and/or reversion, dismissal",
and removal from service;,
"(vi) transport matters, except those relating to cancellation of",
permits and requiring urgent interim orders; and,
(vii) cases relating to decrees and their execution.,
"8. Notwithstanding anything contained hereinabove, the Chief",
"Justice may, by a special or general order, constitute a Bench of",
any composition and direct a particular case or a particular class,
or classes of cases to be listed before a particular Bench.,
D. Vacation Officer,
1. A Vacation Officer shall be appointed for each month and his,
"name, address and telephone numbers be ported on the website for",
"the purpose of hearing cases of urgent nature on a Saturday, holiday",
or after court hours on a working day.,
2. The procedure for consideration and listing of cases of urgent,
nature during the summer vacation and holidays shall apply,
mutatis mutandis to cases of urgent nature under clause (1),
above.,
41,
CHAPTER VIII,
"ADVOCATE, VAKALATNAMA AND MEMO OF APPEARANCE",
I. Advocate on-Record,
"(a) An advocate on-record shall, on his filing a memorandum of",
appearance on behalf of a party accompanied by a vakalatnama,
"duly executed by the party, be entitled--",
(i) to act as well as to plead for the party in the case and to,
conduct and prosecute before the Court all proceedings that,
may be taken in respect of the said case or any application or,
miscellaneous application connected with the same or any,
"decree or order passed therein, including proceedings in",
"taxation, applications for review and curative petitions; and",
(ii) to deposit and receive money on behalf of the said party.,
(b) No advocate other than an advocate on-record shall be entitled to,
file an appearance or act for a party in the Court.,
(c) Every advocate on-record shall keep such books of account as may,
be necessary to show and distinguish in connection with his,
practice as an advocate on-record--,
(i) moneys received from or on account of and the moneys paid,
to or on account of each of his clients; and,
(ii) the moneys received and the moneys paid on his own,
account.,
"(d) Every advocate on-record shall, before taxation of the Bill of Costs,",
file with the Taxing Officer a certificate showing the amount of fee,
paid to him or agreed to be paid to him by his client.,
(e) No person having an advocate on-record shall file a vakalatnama,
authorizing another advocate on-record to act for him in the same,
case save with the consent of the former advocate on-record or by,
"leave of the Judge in Chambers, unless the former advocate on-",
"record is dead, or is unable, by reason of infirmity of mind or body,",
to continue to act.,
42,
"(f) Where a party changes his advocate on-record, the new advocate",
on-record shall give notice of the change to all other parties,
appearing in the case.,
"(g) No advocate on-record may, without the leave of the Court,",
withdraw from the conduct of any case by reason only of non-,
payment of fees by his client.,
"(h) An advocate on-record who, on being designated as a senior",
"advocate or on being appointed as a Judge or for any other reason,",
cease to be an advocate on-record for any party in a case shall,
forthwith inform the party concerned that he has ceased to represent,
the said party as advocate on-record in the case.,
(i) No person having an advocate on-record shall be heard in-person,
save by special leave of the Court.,
"(j) No advocate on-record shall authorize any person whatsoever,",
"except another advocate on-record, to act for him in any case.",
(k) No advocate other than the advocate on-record for a party shall,
"appear, plead and address the Court in a case unless he is instructed",
by the advocate on-record or permitted by the Court.,
(l) An advocate on-record shall be personally liable to the Court for the,
due payment of all fees and charges payable to the Court.,
(m) An advocate on-record shall notify to the Registrar his/her eMail,
address and the address of his office in Delhi and every change of,
"such address, and any notice, writ, summons, or other document",
sent on such eMail address or served on him or his clerk at the,
address so notified by him shall be deemed to have been properly,
served.,
(n) An advocate on-record shall not involve in mere name lending,
without any further participation in the proceedings of the case as it,
would constitute misconduct or conduct unbecoming of an advocate,
on-record.,
43,
II. Advocate,
"(i) Subject to the provisions of the Rules, an advocate, whose name is",
entered on the roll of any State Bar Council maintained under the,
"Advocates Act, 1961 (25 of 1961), as amended, shall be entitled to",
appear before the Court.,
Provided that an advocate whose name is entered on the roll,
"of any State Bar Council maintained under the Advocates Act,",
"1961, for less than one year, shall be entitled to mention cases in",
"Court for the limited purpose of asking for time, date, adjournment",
"and similar such orders, but shall not be entitled to address the",
Court for the purpose of any effective hearing:,
"Provided further that the Court may, if it thinks desirable to",
"do so for any reason, permit any person to appear and address the",
Court in a particular case.,
"(ii) An advocate, other than a senior advocate, may, on his fulfilling the",
"conditions laid down in Order IV Rule 5 of the Rules, be registered",
in the Court as an advocate on-record.,
III. Senior Advocate,
"(i) The Chief Justice and the Judges may, with the consent of the",
"advocate, designate an advocate as senior advocate if, in their",
"opinion, by virtue of his ability, standing at the Bar or special",
"knowledge or experience in law, the said advocate deserves such a",
distinction.,
"(ii) A senior advocate, on being so designated, shall not appear as",
senior advocate till he reports to the Registry that parties,
represented by him earlier as advocate on-record have been,
informed about his designation as senior advocate and that,
necessary arrangements have been made for the parties to make,
appearance before the Court in all the cases represented by him till,
then.,
44,
A senior advocate shall not--,
(i) file a vakalatnama or act in any Court or Tribunal in India;,
(ii) appear without an advocate on-record in the Court or without a,
junior in any other Court or Tribunal in India;,
"(iii) accept instructions to draw pleadings or affidavit, advise on",
evidence or do any drafting work of an analogous kind in any Court,
or Tribunal in India or undertake conveyancing work of any kind,
whatsoever but this prohibition shall not extend to settling any such,
matter as aforesaid in consultation with a junior; and,
(iv) accept directly from a client any brief or instructions to appear in,
any Court or Tribunal in India.,
Note,
Every advocate appearing before the Court shall wear such robes and,
"costumes as may, from time to time, be directed by the Court.",
III. Vakalatnama,
"(a) Every vakalatnama in any cause, appeal or matter shall be executed by",
the party:,
"Provided that a person, other than a party to the cause, appeal or",
"matter, may file vakalatnama on the basis of Power of Attorney but",
shall annex original Power of Attorney with the vakalatnama.,
(b) A vakalatnama filed by the State or its instrumentality under Article,
12 of the Constitution or any body corporate shall be signed by the,
appropriate authority with official seal.,
(c) A vakalatnama shall –,
(i) be filed on demy-foolscap size paper and one side of the,
paper be used;,
"(ii) mention the name, age, father’s name and address of the",
person(s) appointing the advocate as also the serial number in,
the array of parties;,
"(iii) contain State Bar Council Enrolment Number, postal",
"address, telephone number, mobile number, eMail address",
45,
and registration number of the advocate on-record accepting,
"the vakalatnama, for service;",
(iv) mention name of the person(s) executing the vakalatnama,
"and advocate accepting the same, below their respective",
signatures;,
(d) The Advocates Welfare Fund Stamp shall be pasted on the header of,
"the vakalatnama, without covering any part of the text.",
"(e) Wherever a vakalatnama is found to be defective in any respect,",
the case in which it has been filed shall be dealt with as a defective,
case.,
(f) Where the vakalatnama is executed in the presence of the advocate,
"on-record, he shall certify that it was executed in his presence.",
(g) Where the advocate on-record merely accepts the vakalatnama,
which is already duly executed in the presence of a Notary or an,
"advocate, he shall make an endorsement thereon that he has",
satisfied himself about the due execution of the vakalatnama.,
IV. Memo of Appearance,
"(i) A memo of appearance shall, inter alia, consist of a declaration",
"signed by the advocate on-record that he has been authorized,",
"instructed and engaged to appear, act and plead for the party.",
"(ii) Where the party has personally authorized, instructed and engaged",
"the advocate on-record, memo of appearance shall be counter-",
"signed by the party. Where the party is illiterate, thumb impression",
or other mark of the party on the memo of appearance shall be,
"attested by at least two literate witnesses, who shall furnish their",
"names and addresses, including police station in case of a criminal",
matter.,
"(iii) Where a person, other than a party to the cause, appeal or matter,",
"has authorized, instructed and engaged the advocate on-record on",
"behalf of a party, the memo of appearance shall be accompanied by",
the Power of Attorney signed by the party authorizing such person,
"to authorize, engage and instruct an advocate on-record to appear,",
46,
act and plead on his behalf. Such Power of Attorney shall clearly,
state the nature of relationship of such person with the party.,
"(iv) If such authorization is not accompanied by Power of Attorney, the",
matter shall be dealt with as a defective case.,
General,
Constituted Attorney cannot appear before the Court in a case.,
47,
CHAPTER IX,
AFFIDAVITS,
"1. An affidavit for the purpose of any cause, appeal or matter before",
the Court may be sworn before a Notary or any authority mentioned,
in Section 139 of the Code or before a Registrar of the Court duly,
"authorized in this behalf by the Chief Justice, or before an Oath",
Commissioner generally or specially authorized in that behalf by,
the Chief Justice.,
2. Every affidavit shall be headed “In the Supreme Court of India” and,
"shall be filed in the cause, appeal or matter for which it is sworn.",
"3. Every affidavit shall be drawn up in the first person, and shall be",
"divided into paragraphs to be numbered consecutively, and shall",
"state the description, occupation, if any, and the true place of abode",
of the deponent.,
Every person or place referred to in an affidavit shall be fully,
described in such a manner so as to clearly establish the identity.,
4. An affidavit shall be confined to such facts as the deponent is able,
"of his own knowledge to prove, except on interlocutory applications",
"or miscellaneous applications, on which statements of his belief",
"may be admitted, provided that the grounds thereof are stated.",
5. An affidavit requiring interpretation to the deponent shall be,
"interpreted by an interpreter nominated or approved by the Court, if",
"made within the State of Delhi, and if made elsewhere, shall be",
interpreted by a competent person who shall certify that he has,
correctly interpreted the affidavit to the deponent.,
"6. Where the deponent is a pardahnashin lady, she shall affirm or take",
"oath before a lady Registrar of this Court, which shall include an",
"Additional Registrar, duly authorized by the Chief Justice, or before",
"a lady Oath Commissioner, and shall also be identified by a person",
to whom she is known and the person shall prove the identification,
by a separate affidavit.,
7. Every exhibit annexed to an affidavit shall be marked with the title,
"and number of the cause, appeal or matter and shall be initialled and",
48,
dated by the authority before whom it is sworn.,
"8. No affidavit having any interlineation, alteration or erasure shall be",
filed in Court unless the interlineation or alteration is initialled or,
"unless, in the case of an erasure, the words or figures written on the",
erasure are rewritten in the margin and initialled by the authority,
before whom the affidavit is sworn.,
"No correction in the affidavit after filing shall be permitted, except",
on an application supported by affidavit of the affiant. Such,
correction shall be made in the case of --,
"(i) an affidavit, by filing a fresh affidavit of the affiant; and",
"(ii) a document, by the party or advocate providing the",
document.,
"9. An affidavit may be refused to be received by the Registrar where,",
"in his opinion, the interlineations, alterations, or erasures are so",
numerous as to make it expedient that the affidavit should be,
rewritten.,
"10. Where a special time has been limited for filing affidavits, no",
"affidavit filed after that time shall be used, except by leave of the",
Court.,
"11. Where an affidavit is filed in a pending case, it shall mention the case",
number and names of the first party on either side.,
"12. In the verification of petitions, pleadings or other proceedings,",
statements based on personal knowledge shall be distinguished,
from the statements based on information and belief. In the case of,
"statements based on information, the deponent shall disclose the",
"source of his information, including official records.",
13. In case of affidavits filed in respect of a minor or a person of,
"unsound mind under Order VII of the Rules, the proposed",
guardian/affiant shall state “that he has no interest in the matter in,
question in the appeal or petition adverse to that of the minor and,
that he is a fit and proper person to be so appointed”. The affidavit,
shall also state –,
49,
(a) that the affiant has obtained consent of the person proposed,
to be appointed as guardian for the case and that the latter,
has consented to act as such;,
(b) whether the minor has an appointed guardian or declared,
"guardian, and if so, who that person is;",
"(c) if not, who is the natural guardian, and in the absence of a",
"natural guardian, who actually has the custody of the minor;",
and,
(d) where any person other than one of the above is proposed,
"as guardian for the suit, the reason for not proposing the",
person omitted.,
14. Nothing in this Chapter shall be deemed to limit the power of the,
Court to call for an affidavit in any case and to strike out from the,
"affidavit any averment which is scandalous, frivolous, vexatious and",
irrelevant or which is otherwise an abuse of the process of the Court,
at the cost of the offending party.,
15. The affidavit accompanying a petition for review made upon the,
ground of the discovery of new and important matter of evidence,
within the meaning of Order XLVII Rule 1 of the Code shall state,
"in clear terms what such new and important matter of evidence is,",
"the effect or purport thereof and that the same, after the exercise",
"of due diligence, was not within the knowledge of the petitioner",
or could not be produced by him at the time when the order was,
"made or the judgment was delivered. The documents, if any, relied",
upon shall be annexed to the petition.,
"16. The affidavit, accompanying a main case, an interlocutory",
application or a miscellaneous application dismissed for -,
"(i) default of appearance, or",
"(ii) failure to take any step within the specified time,",
(a) shall state the circumstances under which such,
"default was made, and",
(b) whether or not the party whose main case or,
interlocutory application or miscellaneous,
50,
"application was dismissed, had previous to such",
"dismissal, engaged an advocate to conduct the main",
case or interlocutory application or miscellaneous,
application.,
17. ‘Affidavit’ includes a petition or other document required to be,
sworn or verified and ‘sworn’ includes affirmed.,
"18. The affidavit, accompanying a curative petition, shall state in clear",
terms that the petition is governed by the judgment of the Court in,
the case of Rupa Ashok Hurra vs. Ashok Hurra and Anr.[2002 (4),
SCC 388].,
51,
CHAPTER X,
PREPARATION FOR FILING OF CASES,
1. Every main case shall be accompanied by a ‘computer sheet’ in,
"Form No.31, on demy-foolscap size or standard A4 size paper,",
"duly filled in by the plaintiff, petitioner, appellant or by his",
"advocate on-record or by his duly authorised agent, containing",
following information--,
(i) Class of the Case;,
(ii) Case number (to be filled by the Registry);,
(iii) Name of the first party on either side;,
(iv) Date of filing;,
(v) Date of Registration (to be filled by the Registry);,
(vi) Subject Matter;,
(vii) Provision of law;,
(viii) Subject Category Code (as per Annexure);,
(ix) Name and State Bar Council Enrolment Number as also,
Advocate on-record Registration Number;,
"(x) Particulars of the High Court, lower Court, Authority or",
Tribunal etc.;,
"a) name,",
"b) designation,",
"c) case, file/order number,",
d) date of impugned judgment/order.,
(xi) Whether the party is desirous of getting the matter settled,
through any of the alternative modes of dispute resolution;,
"(xii) Caveat notice, whether received;",
(xiii) Name and signature of the advocate on-record filing the,
main case.,
"2. Every plaint, petition, application and other document shall be",
"presented by the plaintiff, petitioner, applicant, appellant, defendant",
or respondent in-person or by his duly authorised agent or by an,
advocate on-record duly appointed by him for the purpose.,
"3. No plaint, petition, appeal, application, pleading, affidavit or other",
"document, except original exhibits and certified copies of public",
"documents, shall be received, unless it is fairly and legibly written,",
"type-written or lithographed in double-line spacing, on one side of",
52,
"standard petition paper, demy-foolscap size, or of the size of 29.7",
"cm x 21 cm, or paper, which is ordinarily used in the High Courts",
for the purpose.,
"4. Copies filed for the use of the Court shall be neat, clear, sharp and",
"legible without any inter-lining, encircling or unwanted remark on",
the documents. They shall be certified to be true copies by the,
"advocate on-record or by the party in-person, as the case may be.",
5. No document in language other than English shall be used for the,
"purpose of any proceedings before the Court, unless it is",
accompanied by:,
(a) a translation agreed to by both parties; or,
(b) a translation certified to be true translation by a translator,
appointed by the Court; or,
(c) the said document is translated by a translator appointed or,
approved and notified by the Court.,
"6. Every memorandum of appeal, petition or application, shall be",
headed “In the Supreme Court of India”.,
"7. Immediately below the heading, the jurisdiction, case number and",
the cause title under which the main case is filed shall be,
mentioned in that order.,
"8(i) In a pending main case, no interlocutory application, affidavit in",
"opposition, rejoinder affidavit, affidavit or any other document shall",
"be filed, unless a copy thereof has been previously served on the",
"advocate on-record, or his registered clerk, of the opposite party or",
"parties, as the case may be, or party in-person, who has entered",
appearance.,
The advocate on-record or his registered clerk served with such,
copy shall acknowledge the receipt of the same by endorsement on,
"the filing memo, writing his full name below the signature along",
with registration number and phone number.,
(ii)(a) A notice of motion shall be instituted in the suit or case in which the,
application seeking ad interim ex-parte relief is intended to be made,
and shall state the time and place of application and the nature of,
the order sought.,
53,
(b) It shall be addressed to the party or parties intended to be affected,
"by it, unless represented by an advocate on-record, in which case it",
shall be addressed to the advocate on-record.,
(c) It shall be signed by the advocate on-record of the party instituting,
the motion or by the party in-person.,
Note,
"Where the Court orders filing of an affidavit, a copy of the",
affidavit so filed shall be served on the advocate on-record of the,
"opposite party or his registered clerk or the party in-person, as the",
"case may be, a week before the date of hearing or within such time,",
as may be specified by the Court or Rules or otherwise required in,
the given situation:,
Provided that where the advocate on-record for the,
opposite party or his registered clerk or party in-person refuses,
"to accept a copy, he may record his reasons for such refusal on",
the filing memo.,
"(iii) No interlocutory application, affidavit in opposition, rejoinder",
"affidavit, affidavit or document, shall be accepted at the Filing",
"Counter without such acknowledgement, receipt or endorsement",
and no undertaking to effect the service later shall be entertained.,
CIVIL MATTERS,
The cause title of every memorandum of appeal or petition shall,
contain--,
"(1) the name, description, registered address, fax number with",
"S.T.D. code and eMail address, if any, of each appellant,",
"petitioner or applicant, as the case may be, where such appellant,",
petitioner or applicant is a private person;,
"(2) the name, description, registered address, fax number",
"with S.T.D. code and eMail address, if known, of each person",
"arrayed as respondent or opposite party, where such respondent",
or opposite party is a private person;,
"(3) the status (whether plaintiff, defendant, petitioner, appellant,",
"respondent, applicant or non-applicant, etc.) of the parties in the",
54,
Court(s) below;,
"(4) the status (whether plaintiff, defendant, petitioner, appellant,",
"respondent, applicant or non-applicant, etc.) of the parties in",
"appeal, petition, suit, or application in the case of review or",
"curative petition, as the case may be.",
Arbitration Petition,
"1. A petition under Section 11(5) of the Arbitration and Conciliation Act,",
"1996, read with the Appointment of Arbitrators by the Chief Justice of",
"India Scheme, 1996, shall set out concisely, in separate paragraphs,",
"facts and particulars of the case in chronological order. It shall, inter",
"alia, be accompanied by –",
(a) the original arbitration agreement or a duly certified copy,
thereof;,
(b) the names and addresses of the parties to the arbitration,
agreement;,
"(c) the names and address of the Arbitrators, if any, already",
appointed;,
"(d) the name and address of the person or institution, if any, to",
whom or which any function has been entrusted by the parties,
to the arbitration agreement under the appointment procedure,
agreed upon by them;,
"(e) the qualifications required, if any, of the arbitrators by the",
agreement of the parties;,
(f) a brief written statement describing the general nature of the,
dispute and the points at issue;,
(g) the relief or remedy sought; and,
"(h) an affidavit, supported by the relevant document, to the effect",
that the condition to be satisfied under sub-section (4) or sub-,
"section (5) or sub-section (6) of Section 11, as the case may be,",
"before making the petition, has been satisfied.",
(i) The petition shall be lodged along with five copies of the,
petition and all the documents which accompany it;,
"2. The petitioner shall deposit, along with the petition, an amount of",
"Rs.15,000/- towards the costs involved in processing the petition.",
55,
Civil Appeal,
"1. Every memo of petition of appeal, with necessary modifications",
"and adaptation, shall be filed in Form No.28. No separate",
"application for interim relief shall be filed and interim prayer, if",
"any, shall be incorporated in the Form.",
"2. The petition of appeal, shall recite succinctly and in chronological",
"order with relevant dates, the principal steps in the proceedings",
leading up to the appeal from the commencement thereof till the,
grant of the certificate of leave to appeal to the Court or all the,
"relevant facts leading up to the order appealed from/complained of,",
"as the case may be, and shall state the grounds on which the",
judgment under appeal is assailed.,
3. The petition of appeal shall state the amount or value of the,
subject-matter of the suit or case in the Court of first instance,
"and in the High Court, and the amount or value of the subject-",
matter in dispute before the Court with particulars showing how,
the said valuation has been arrived at. Where the appeal is,
"incapable of valuation, it shall be so stated:",
Provided that an appeal under Section 23 of the Consumer,
"Protection Act, 1986 (68 of 1986) shall be accompanied by a Bank",
"draft for Rupees fifty thousand or fifty percent of the amount,",
"whichever is less, required to be paid by the person intending to",
"appeal, in terms of the order of the National Consumer Disputes",
"Redressal Commission, drawn in favour of the Registrar, Supreme",
"Court of India, payable at New Delhi:",
"Provided further that in case of appeal by indigent person, it",
shall be accompanied by an affidavit from the appellant disclosing,
all the property to which he is entitled and the value thereof other,
than his necessary wearing apparel and his interest in the subject-,
matter of the intended appeal and stating that he is unable to,
provide security or surety for the cost of respondent and pay Court,
fees.,
4. The petition of appeal shall be accompanied by a certified copy of–,
56,
(i) judgment and decree or order appealed from or authenticated,
"copy of the order complained of, as the case may be;",
(ii) certificate granted by the High Court under Order XIX of the,
Rules; and,
(iii) the order granting the said certificate.,
"In cases where, according to the practice prevailing in the High",
"Court, the decree or order is not required to be drawn up, it shall be",
so stated upon affidavit.,
5. In appeals falling under any of the categories enumerated in Order,
"XIX Rule 6 of the Rules, however, in addition to the documents",
"mentioned above, a certified copy (or uncertified copy, if such copy",
is affirmed to be true copy upon affidavit) of the judgment or order,
and also of the decree of the Court immediately below or such a,
"copy of the order of the Tribunal, Government Authority or person,",
"as the case may be, shall also be filed.",
Note,
The following categories of appeals have been enumerated in Order,
XIX Rule 6 of the Rules:,
"(a) an appeal from any judgment, decree or final order of a High",
"Court summarily dismissing the appeal or the matter, as the",
"case may be, before it;",
(b) an appeal on a certificate granted by a High Court under,
Article 134A of the Constitution being a certificate of the,
nature referred to in clause (1) of Article 132 or clause (1) of,
Article 133 of the Constitution or under any other provision,
of law if the High Court has not recorded the reasons or the,
grounds for granting the certificate.,
(c) an appeal under clause (b) of sub-section (1) of Section 19 of,
"the Contempt of Courts Act, 1971 (70 of 1971).",
6. Where at any time between the grant of Certificate under Article,
134A of the Constitution for leave to appeal to the Court or making,
"of the impugned judgment and order, as the case may be, and the",
"filing of the petition of appeal, any party to the proceeding in the",
57,
"Court below dies, the petition of appeal may be filed by or against",
"the legal representative, as the case may be, of the deceased party:",
Provided that the petition of appeal is accompanied by a,
"separate application, duly supported by an affidavit, praying for",
bringing on record such person as the legal representative of the,
deceased party and setting out the facts showing him to be the,
proper person to be entered on the record as such legal,
representative.,
7. Any grounds which can be raised only with the leave of the Court,
may be raised by filing a separate application seeking leave to,
appeal on those grounds.,
Election Petition,
1. A petition calling in question an election of the President or the,
Vice-President may be made on one or more of the grounds,
specified in sub-section (1) of Section 18 and Section 19 of the,
"Presidential and Vice-Presidential Elections Act, 1952 (31 of",
"1952) by any candidate at such election, or by twenty or more",
electors joined together as petitioners in the case of Presidential,
"or Vice-Presidential election, as the case may be.",
2. The petitioner shall state the right of the petitioner under the Act,
and briefly set forth the facts and grounds relied on by him to,
sustain the relief or reliefs claimed by him.,
"3. The petition shall be divided into paragraphs, numbered",
"consecutively, each paragraph being confined to a distinct portion",
of the subject and shall be printed or typed legibly on one side of,
standard A-4 size paper.,
4. The allegations of fact contained in the petition shall be verified by,
an affidavit to be made personally by the petitioner or by one of the,
"petitioners, if more than one:",
Provided that where the petitioner is unable to make such,
"affidavit by reason of absence, illness or other sufficient cause, it",
"may, with the sanction of the Judge in Chambers to be given at the",
"time of the presentation of the petition, be made by any person duly",
58,
authorised by the petitioner and competent to make the same.,
5. Every petition calling in question an election shall bear a certificate,
from a senior advocate to the effect that the petition discloses one or,
more substantial questions for challenging the election of the,
"President or the Vice-President, as the case may be.",
"6. Upon the presentation of the petition, the petitioner shall deposit a",
sum of Rupees fifty thousand in cash or by bank draft with the,
Registrar or officer nominated by him as security for the payment,
of all costs that may become payable by the petitioner.,
"The election petition shall be prepared, processed, listed and",
heard in accordance with Order XLVI of the Rules.,
Reference,
1. The President may refer a question of law or fact of public,
importance which has arisen or is likely to arise or a dispute of the,
kind mentioned in the proviso to Article 131 of the Constitution to,
the Court under Article 143 of the Constitution read with Order,
XLII of the Rules to obtain the opinion of the Court.,
2. The President under Article 317(1) of the Constitution or any,
Statute or the Governor under any Statute read with Order XLIII of,
the Rules may make a Reference containing grounds for inquiry,
"and the charges against the person sought to be removed, along with",
"the documents relied upon, in the matter of the inquiry.",
"3. The Central Government or Statutory Tribunal, as the case may be,",
"may, under the provisions of any Act enabling such a Reference,",
make a Reference to the Court under Order XLIV of the Rules,
"containing, inter alia, all the relevant facts of the case, definite",
charges against the person sought to be removed from the,
concerned office by virtue of the enabling provision for such,
removal and the statement of grounds on which each such charge is,
based.,
"Along with the order of Reference, seven copies thereof and",
eight copies of the transcript in English of the documents relating to,
"the grounds on which the removal of the person is sought, one of",
"which shall be duly authenticated, shall be transmitted to the Court.",
59,
"4.(a) The Income Tax Appellate Tribunal, through its President, may",
make a Reference in the form of Statement of Case under Section,
"257 of the Income Tax Act, 1961, read with Order XLV of the Rules",
containing numbered paragraphs setting out all relevant facts and,
"proceedings, having a bearing on the question(s) raised in",
chronological order with relevant dates. It shall contain an account,
of the conflict in the decisions of the High Courts necessitating the,
Reference.,
"(b) Along with the order of Reference, the following documents shall",
be submitted:,
(i) A copy of the order of the Income Tax Officer;,
(ii) Memorandum of appeal to the Appellate Assistant,
Commissioner;,
(iii) A copy of the order of the Appellate Assistant Commissioner;,
(iv) Memorandum of appeal to the Appellate Tribunal;,
(v) A copy of the order of the Income Tax Appellate Tribunal,
"under Section 254 of the Income Tax Act, 1961;",
(vi) A copy of the application for reference under Section 256 of,
"the Income Tax Act, 1961; and",
"(vii) Such other documents, as, in the opinion of the Income Tax",
"Appellate Tribunal, may be required by the Supreme Court at",
the hearing of the reference.,
(c) The Tribunal shall transmit to the Court three copies of the,
"transcript in English of the documents, one of which shall be duly",
authenticated.,
Note,
"The References shall be forwarded to, and received by, the",
Registrar of the Court.,
Petition for Special Leave to Appeal,
1.(a) The petition for special leave to appeal invoking the extra-ordinary,
appellate jurisdiction under Article 136 of the Constitution read,
with Order XXI of the Rules shall be filed in Form No. 28. No,
separate application for interim relief need be filed and interim,
"prayer, if any, be incorporated in the Form.",
(b) The petition shall be accompanied by-,
60,
(i) a certified copy of the judgment or order appealed from; and,
(ii) an affidavit in support of the statement of facts contained in,
the petition.,
(c) It shall be accompanied by list of dates in chronological order with,
relevant material facts or events pertaining to each of the dates.,
(d) It shall be confined only to the pleadings before the Court/Tribunal,
"whose order is challenged. Additional grounds may, however, be",
urged with due notice to the respondent and with leave of the Court.,
"(e) (i) Copies of such petition/documents, which were part of the record",
"in the case before the Court/Tribunal below, as may be necessary to",
answer the question of law arising for consideration in the petition,
"or to make out the grounds urged in the petition, may be produced",
as annexures to the petition. The documents filed as annexures,
shall be arranged in chronological order and numbered as Annexure,
"1, 2, 3 and so on and shall indicate page numbers. They shall be",
indexed separately and not collectively.,
(ii) The petitioner may produce any document not part of the,
records in the Court/Tribunal below by making a separate,
application seeking leave of the Court to produce additional,
document stating the reasons for not producing it in the,
Court/Tribunal below and the necessity for its production in the,
Court.,
(iii) The English version of the relevant provisions of the,
"Constitution, statutes, ordinances, rules, regulations, bye laws,",
"orders, etc., referred to in the impugned judgment or order, shall be",
filed as appendix to the petition.,
(f) Every petition shall be supported by the affidavit of the petitioners,
"or one of the petitioners, as the case may be, or by any person",
authorized by the petitioner in which the deponent shall state that,
the facts stated in the petition are true and the statement of dates,
and facts furnished along with the petition are true to his knowledge,
and/or information and belief.,
2. No petition shall be entertained by the Registry unless it contains a,
statement as to whether the petitioner had filed any petition for,
61,
special leave to appeal against the impugned judgment or order,
"earlier and, if so, with what result, duly supported by an affidavit of",
the petitioner or his pairokar only.,
3. The petition shall contain a statement as to whether the matter was,
"contested in the Court appealed from and if so, the full name and",
address of all the contesting parties shall be given in the statement,
of facts in the petition.,
4. It shall contain a statement as to whether a letters patent appeal or,
writ appeal lies against the impugned judgment or order and,
whether the said remedy has been availed.,
5. No annexures to the petition shall be accepted unless they are,
certified copies of documents which have formed part of the record,
of the case in the Court appealed from:,
Provided that uncertified copies of documents may be,
"accepted as annexures, if such copies are affirmed to be true copies",
upon affidavit.,
6. Where any person is sought to be impleaded in the petition as the,
legal representative of any party to the proceedings in the Court,
"below, the petition shall contain a prayer for bringing on record",
such person as the legal representative and shall be supported by an,
affidavit setting out the facts showing him to be the proper person,
to be entered on the record as such legal representative.,
7. Where at any time between the filing of the petition and the hearing,
"thereof, the record becomes defective by reason of the death or",
"change of status of a party to the appeal or for any other reason, an",
application shall be made to the Court stating who is the proper,
person to be substituted or entered on the record in place of or in,
addition to the party on record.,
8. The petition shall state the amount or value of the subject-matter,
in the same terms as stated in clause 3 of the civil appeal,
hereinbefore.,
"9. In cases relating to Motor Vehicles Act, 1988, the following",
particulars shall be furnished:,
62,
(i) Particulars of the Award:,
(a) Case number: .……………….,
(b) Date of the Award: .…………,
(c) Award passed under Section 163-A/166 of the Motor,
"Vehicles Act, 1988:",
(d) Name of the Member: .……………..,
(e) Designation and place of sitting of the Tribunal: .….,
(ii) Particulars of the Accident:,
(a) Time and date : .….……………,
(b) Place : .……………….. ……,
Near Village/Locality : .…………,
Tehsil and District : .…………….,
(iii) Particulars of the offending vehicle:,
1. Registration No. ………………….,
2. Kind of Vehicle .………………….,
3. Owned by. ….…………..(Appellant/Respondent No.),
4. Driven by……...………..(Appellant/Respondent No.),
5. Insured with ….………. (Appellant/Respondent No.),
(iv) Name and description of the injured/deceased person:,
1. Name ………………………………………,
2. Age.………………………………………..,
3. Father’s/husband’s name .…………………,
4. Occupation ..…………………………..….,
5. Address ……………………………………,
(v) (1) In fatal accident cases:,
(a) Annual income of the deceased: Rs………….….,
(As adjudged by the Tribunal),
(b) Annual dependency of the claimant Rs……….…,
(As assessed by the Tribunal),
(c) Multiplier applied by the Tribunal ……………….,
(d) Number of dependants and their,
relationship with deceased ……………………….,
(e) Amount of compensation Rs………………...,
awarded by Tribunal,
(f) Payable by ………………………………….,
(2) In non-fatal accident cases :,
(a) Nature of injuries suffered …………………….,
63,
with percentage of disability,
(As adjudged by Tribunal),
(b) Amount of expenses on treatment Rs………...,
awarded by the Tribunal,
(c) Amount of damages as loss of Rs……………,
"Income, awarded by Tribunal",
(d) Amount of general damages Rs……………...,
awarded by Tribunal,
(e) Total compensation awarded Rs……………...,
(f) Payable by………………...,
(3) In cases of damage to property:,
(a) Particulars of Property………………………..,
(b) Nature of damage to the Property…………….,
(As adjudged by Tribunal),
(c) Total compensation awarded …………………,
(d) Payable by …………………………………..,
(vi) Details of Interest awarded by the Tribunal:,
(1) Date from which interest is awarded………………….,
(2) Rate at which interest has been awarded………….…%,
(vii) (1) Total amount of compensation awarded by High,
Court.,
(2) Date from which interest awarded…………………….,
(3) Rate at which interest has been awarded....…………%,
(4) Multiplier applied by the High Court……………….,
(5) Gross total………………….,
"(6) Amount, if any, already paid to the claimant(s)",
………..,
(viii) Relief Claimed in appeal:,
(1) Enhancement/Reduction of,
amount of compensation by Rs.……………….,
(2) Exoneration/liability of insurer ……………………….,
(3) Award of interest at the rate of……………………%,
(4) Any other relief,
Original Suit,
1. A suit shall be instituted by the presentation of a plaint to the,
Registrar under Order XXVI of the Rules.,
64,
2. Two or more plaintiffs may join in one suit in whom any,
right to relief in respect of or arising out of the same act or,
transaction or series of acts or transactions is alleged to exist.,
Similar shall be the case with defendants against whom any,
right to relief is alleged to exist.,
3. A plaint shall contain the following particulars --,
(a) names of the plaintiff and of the defendant;,
(b) facts constituting the cause of action and when it arose;,
(c) facts showing that the Court has jurisdiction; and,
(d) declaration or relief which the plaintiff claims.,
"4. The plaintiff shall endorse on the plaint, or annex thereto a",
"list of the documents, if any, which he has produced along",
with it.,
5. Every pleading shall contain only a statement in a concise,
"form of the material facts on which the party pleading relies,",
"but not the evidence by which those facts are to be proved,",
"nor any argumentative matter, and shall be divided into",
paragraphs numbered consecutively.,
6. Every pleading shall be signed by an advocate-on-record on,
behalf of the Attorney General for India or by an advocate-,
"on-record on behalf of the Advocate General for the State, as",
the case may be.,
Note,
"Under Order XXIX of the Rules, ‘pleading’ means plaint or written",
statement.,
Transfer Petition,
1. (i) A petition under Article 139A(1) of the Constitution read with,
"Order XL of the Rules shall set out concisely, in separate",
paragraphs --,
"(a) facts and particulars of the cases, pending before the",
"Supreme Court and one or more High Courts or, as the case",
"may be, before two or more High Courts;",
65,
(b) names and addresses of the parties;,
(c) question(s) of law involved; and,
(d) statement that the same or substantially the same questions of,
law are involved in all the cases and that such questions are,
substantial questions of general importance.,
(ii) (a) In the case of a petition made by the Attorney General for,
"India, no affidavit shall be necessary in support of the",
petition but it shall be accompanied by a certificate of the,
advocate on-record to the effect that such questions are,
substantial questions of general importance in terms of,
Article l39A(1) of the Constitution.,
"(b) In the case of a petition made by a party to a case, it shall be",
accompanied by an affidavit in support thereof and also by a,
"certificate, as stated in clause (1) above.",
2. A petition under Article 139A(2) of the Constitution and/or Section,
25 of the Code filed under Order XLI of the Rules shall state,
"succinctly and clearly all relevant facts and particulars of the case,",
the names of the High Court or other Civil Court in which the case,
is pending and the Court to which the transfer is sought and the,
grounds on which the transfer is sought supported by an affidavit.,
Review Petition,
An application for review under Article 137 of the Constitution read,
with Order XLVII of the Rules shall be filed on the grounds mentioned,
"in Order XLVII Rule 1 of the Code, namely, discovery of new and",
"important matter or evidence which, after exercise of due diligence",
was not within the knowledge or could not be produced by the,
"petitioner at the time when the decree was passed or order made, or on",
"account of some mistake or error apparent on the face of the record, or",
for any other sufficient reason.,
It shall be accompanied by --,
(i) a certified copy or authenticated copy of the order or judgment,
sought to be reviewed; and,
(ii) a certificate of the advocate on-record certifying that it is the first,
application for review and is based on the grounds admissible under,
66,
the Rules.,
Curative Petition,
1. A curative petition shall be governed by the judgment of the Court,
in the case of Rupa Ashok Hurra v. Ashok Hurra and Anr. [2002,
(4) SCC 388] and as per Order XLVIII of the Rules.,
2. It shall contain specifically that no new grounds have been taken,
and the grounds mentioned in the petition had been taken in the,
"application for review, which was dismissed by circulation.",
3. It shall be accompanied by --,
(i) a certificate of the senior advocate that the petition meets,
the requirements delineated in the case mentioned in clause,
(1) above;,
(ii) a certified or authenticated copy of the judgment or order,
complained of; and,
(iii) a certificate of the advocate on-record to the effect that it is,
the first curative petition in the impugned matter.,
I. Writ Petition,
1. A petition under Article 32 of the Constitution read with Order,
"XXXVIII Rule 1 of the Rules for a direction or order or writ,",
"including writs in the nature of mandamus, prohibition, quo",
"warranto and certiorari or any of them, shall be filed in Form",
No. 32 setting out the name and description of the petitioner(s),
"and respondents(s), the nature of fundamental right infringed,",
the relief sought and the grounds on which it is sought.,
2. The petition shall be --,
(a) accompanied by original or certified copy or true copy of,
"the order or decision, if any, complained of;",
(b) supported by an affidavit verifying the facts relied upon.,
3. The petitioner shall state whether the petitioner has moved the,
"High Court for similar relief and, if so, with what result.",
4. When a petitioner relies upon document(s) in his possession or,
"power, he shall file those documents along with the petition. Where",
67,
"such document is handwritten or is not fairly legible, it shall be",
"accompanied by true, typed or printed copy thereof:",
Provided that where such documents are not in his,
"possession, the petition shall annex a list of such documents to the",
petition.,
II. Public Interest Litigation,
1. A writ petition in public interest invoking extraordinary original,
jurisdiction under Article 32 of the Constitution read with Order,
XXXVIII Rules 1 and 12(1)(d) and (2) of the Rules shall be filed in,
Form No. 33 and shall disclose --,
"(a) the full name of the petitioner, his complete postal address,",
"eMail address, phone number, proof regarding personal",
"identification, occupation and annual income, PAN number",
"and National Unique Identity Card number, if any;",
(b) the facts constituting the cause of action;,
(c) the nature of injury caused or likely to be caused to the,
public;,
"(d) the nature and extent of personal interest, if any, of the",
petitioner(s);,
"(e) details regarding any civil, criminal or revenue litigation,",
"involving the petitioner or any of the petitioners, which has",
or could have a legal nexus with the issue(s) involved in the,
public interest litigation; and,
(f) whether the concerned Government Authority was moved for,
"relief(s) sought in the petition and if so, with what result.",
2. It shall be accompanied by an affidavit stating that the petitioner,
"has no personal gain, private motive or oblique reason in filing such",
petition.,
"3. It shall contain a statement/declaration of the petitioner that, to his",
"knowledge, the issue raised was not dealt with or decided and that a",
similar or identical petition was not filed earlier by the petitioner or,
68,
by any other person and in case such an issue was dealt with or a,
"similar or identical petition was filed earlier, its status and the result",
thereof.,
Interlocutory and Miscellaneous applications,
"In interlocutory application and miscellaneous application, so filed in a",
"main case, the class and number of such main case shall be set out in",
the cause title.,
CRIMINAL MATTERS,
The cause title of every memorandum of appeal or petition shall contain--,
"(i) the name, description and address with police station of each",
appellant or petitioner;,
"(ii) the name, description and address with police station of each person,",
who is proposed to be made the opposite party;,
"(iii) the status (whether prosecution, complainant, applicant, accused",
"or non-applicant, etc.) of the parties in the court below, wherever",
required.,
Criminal Appeal,
"1. The memo of petition of appeal shall, with necessary modifications",
"and adaptations, be filed in Form No.28 in accordance with the",
provisions contained in clause (2) below.,
"2. It shall state succinctly and briefly, in chronological order, the",
principal steps in the proceedings from its commencement till its,
conclusion in the Court appealed from and shall state clearly in the,
following order --,
(a) (i) the name of the Judge and designation of the Court;,
(ii) date of the impugned judgment/order; and,
(iii) case number in which such judgment/order was passed,
by the original and/or appellate Court.,
"(b) facts of the case, in brief;",
(c) question(s) of law;,
"(d) grounds, in seriatim;",
(e) grounds for interim relief;,
69,
(f) main prayer; and,
"(g) interim relief, if any.",
3. It shall contain the provisions of law under which the conviction,
"has been recorded and the details of the sentence imposed, including",
"fine, if any.",
4. It shall be accompanied by a certified copy of the judgment or,
"order appealed from and in the case of an appeal on a certificate,",
the certificate granted by the High Court and the order granting the,
said certificate.,
5. In appeals falling under any of the categories enumerated in Order,
"XX Rule 5(1) of the Rules, in addition to the documents mentioned",
"above, a certified copy (or uncertified copy, if such copy is affirmed",
to be true copy upon affidavit) of the judgment or order of the Court,
immediately below shall also be filed.,
Note,
The following categories of appeals have been enumerated in Order,
XX Rule 5 of the Rules:,
"(a) an appeal from any judgment, final order or sentence in a",
criminal proceeding of a High Court summarily dismissing,
"the appeal or the matter, as the case may be, before it;",
(b) an appeal on a certificate granted by a High Court under,
Article 134A of the Constitution being a certificate of the,
nature referred to in clause (1) of Article 132 or sub-clause,
(c) of clause (1) of Article 134 of the Constitution or under,
any other provision of law if the High Court has not recorded,
the reasons or the grounds for granting the certificate;,
(c) an appeal under clause (b) of sub-section (1) of Section 19 of,
"the Contempt of Courts Act, 1971 (70 of 1971).",
6. (a) A memorandum of appeal against conviction shall contain a,
declaration that the convicted person is in custody or has,
surrendered after the conviction as also the prison in which,
he is lodged.,
"(b) Where the appellant has not surrendered to the sentence, the",
"petition of appeal shall not be accepted by the Registry,",
unless it is accompanied by an application for exemption,
from surrendering.,
(c) A certified copy of the order of the Court in which the,
70,
appellant has surrendered or a certificate of the competent,
officer of the Jail in which he is undergoing the sentence,
shall be filed as the proof of surrender.,
(d) A mere attestation of the signatures on the vakalatnama from,
the Jail authorities shall not be considered as sufficient proof,
of surrender.,
Petition for Special Leave to Appeal,
1. The petition for special leave to appeal shall be filed in Form No.28,
in accordance with the provisions contained in Order XXI Rule 3(1),
of the Rules with necessary modifications and adaptations.,
2. The petition shall be accompanied by --,
(i) a certified copy of the judgment or order appealed from; and,
(ii) an affidavit in support of the statement of facts contained in,
the petition.,
3. Every such memorandum shall contain the provision(s) of law,
under which the conviction has been recorded and the details of the,
"sentence imposed, including fine, if any.",
4. No petition shall be entertained by the Registry unless it contains a,
statement as to whether the petitioner had filed any petition for,
special leave to appeal against the impugned judgment or order,
"earlier, and if so, with what result, duly supported by an affidavit of",
the petitioner or his pairokar only.,
5. (a) It shall be confined only to the pleadings before the,
Court/Tribunal whose order is challenged and the other,
documents relied upon in those proceedings.,
"(b) No additional facts, documents or grounds shall be stated or",
relied upon without express prior permission of the Court,
obtained on an application made for this purpose.,
6. No annexures to the petition shall be accepted unless such,
annexures are certified copies of documents which have formed,
part of the record in the Court appealed from:,
71,
Provided that uncertified copies of documents may be,
accepted as annexures if such copies are affirmed to be true copies,
upon affidavit.,
7. The provisions as regards surrender in clause (6) of ‘Criminal,
Appeal’ in this Chapter shall apply mutatis mutandis to the petition,
for special leave to appeal. A similar declaration as regards,
confinement shall also be made in case of a petitioner seeking relief,
under Section 389 or Section 439 of the Code.,
Jail Petition,
The subject has been dealt with independently in Chapter XV.,
Habeas Corpus,
1. A petition for writ of habeas corpus under Order XXXVIII of the,
Rules shall be accompanied by an affidavit of the person,
restrained setting out the nature and circumstances of the restraint:,
Provided that where the person restrained is unable owing to,
"the restraint to make the affidavit, the petition shall be accompanied",
by an affidavit to the like effect made by some other person,
acquainted with the facts and such affidavit shall also state the reason,
why the person restrained is unable to make the affidavit.,
2. The petition shall state whether the petitioner has moved the High,
"Court concerned for similar relief and, if so, with what result.",
Transfer Petition,
A petition under Section 406 of the Code read with Order XXXIX of the,
Rules shall state concisely in separate paragraphs the facts and particulars,
"of the case, the name of the High Court or other criminal court in which",
"the case is pending, and the Court to which the transfer is sought and the",
grounds on which the relief is sought supported by an affidavit or,
affirmation.,
Bail Application,
1. An application under Section 389 or 438 or 439 of the Code,
72,
and a petition in relation thereto shall contain information in,
the following manner:,
Particulars of Crime Particulars of Impugned Order,
Crime No……….. Bail Application / Case No…..…..,
Police Station…… Date of the Order:……………….,
Offence u/s……… Jail in which the ………………….,
"prisoner is lodged, ……………….",
wherever applicable………………,
(a) An application under Section 389 of the Code seeking,
suspension of the sentence pending appeal and release,
on bail shall be accompanied by an affidavit of the,
applicant or his pairokar acquainted with the facts of the,
case.,
(b) An application under Section 438 of the code seeking,
anticipatory or pre-arrest bail shall be supported by an,
affidavit of the applicant or his pairokar acquainted with,
the facts of the case.,
(c) An application under Section 439 of the Code seeking,
bail on the instructions of a person other than the,
accused confined in prison shall be accompanied by an,
affidavit of the pairokar.,
"2. Where the number of accused is more than one, the affidavit shall",
"state that, to the best of the knowledge of the affiant, no bail",
application has been moved by any of the co-accused persons,
"and, if such an application has been moved, details (such as, case",
"number, whether pending; if not, the date of the order deciding the",
application) shall also be disclosed in the following manner:,
S. Name of Date of Case Date of Bench,
"No. the accused Application, If Number the",
Known Order,
"3. No application under Section 389, 438 or 439 of the Code for the",
suspension of sentence and release on bail or grant of,
"anticipatory bail or bail respectively, shall be entertained,",
73,
unless it contains an averment that a similar application relating to,
"the same subject matter has or has not been made to the Court,",
"and, if made, the date of filing, date of disposal and result thereof",
shall also be disclosed in the following manner:,
S. Name of the Date of Case Date of Bench,
"No. accused Application, If Number the",
Known Order,
4. Every subsequent application under Section 389 or 438 or 439 of,
the Code shall be accompanied by certified copies or true copies,
of the orders deciding earlier application(s).,
GENERAL,
"1. No miscellaneous application for intervention, impleadment or",
"direction by a third party shall be entertained, unless otherwise",
directed by the Court.,
2. In the absence of a provision in any Statute or Rule for filing a,
"main case, application for leave to file such case shall accompany",
the main case.,
"3. No case or document shall be accepted, unless prescribed court fee",
is paid.,
4. No application or miscellaneous application shall be entertained,
where review of a judgment or order is sought and where,
provisions of Order XLVII of the Rules are attracted. In such a,
"case, application for review shall be filed.",
5. No miscellaneous application for restoration or recall shall be,
entertained in a main case dismissed peremptorily on account of,
"failure to take steps within the specified period, unless the defects,",
"so notified, have been cured.",
6. A petition for special leave to appeal may be preferred against an,
interlocutory order made in a case under Section 21 of Consumer,
"Protection Act, 1986.",
7. An application for condonation of delay under Section 20 of the,
74,
"Contempt of Courts Act, 1971, shall accompany a contempt",
petition in case such proceeding has been initiated after the expiry,
of a period of one year from the date on which the contempt is,
alleged to have been committed.,
8. Where limitation has not been prescribed by the Rules or under,
"any other provision of law, every interlocutory application or",
miscellaneous application shall be filed within thirty days from the,
date of the order or the cause and shall be accompanied by an,
application for condonation of delay in case the same is barred by,
limitation.,
"9. A copy of the judgment, referred to in the impugned order and",
"reported in the journal, need not be filed, except in cases where the",
"judgment has been reported in a local law journal, a photocopy or",
a typed authenticated copy thereof shall be filed.,
"10. Under Order XVI Rule 4(1) of the Rules, an appellant, whose",
"appeal has been dismissed for default of appearance, may, within",
"thirty days of the order, present a petition praying that the appeal",
may be restored.,
"11. Under Order XVI Rule 4(2) of the Rules, where an appeal is heard",
"ex parte and judgment is pronounced against the respondent, he",
may apply to the Court to re-hear the appeal.,
"12. Under Order XX Rule 11 of the Rules, where an appeal has been",
"dismissed for non-prosecution in terms of Rule 10 thereof, the",
"appellant may, within thirty days of the order, present a petition",
praying that the appeal may be restored.,
13. No petition shall lie against the President and Governors and,
Rajpramukhs of the States as they are not answerable for the,
duties of their offices under Article 361 of the Constitution.,
"14. No Judicial Officer, who has disposed of the case in the Court",
"below, shall be impleaded as the contesting party respondent in the",
main case.,
15. No writ of mandamus shall lie for an order of restatement to an,
"office, which is essentially of a private character, nor can such an",
75,
application be maintained to secure the performance of obligations,
owed by a company towards its workmen or to resolve any private,
dispute.,
16. Whenever the correctness of the judgment of this Court is involved,
"in a writ petition, the certificate by the advocate on-record filing the",
petition shall invariably accompany the petition as under:,
“Though he advised the petitioner that the judgment of this,
"Court binds them and cannot canvass its correctness and still, in",
"spite of such advice, the party insisted upon filing the writ petition.”",
17. The case shall contain the date of drafting that may be of the same,
or prior to the date of filing.,
18. The affidavit enclosed with the petition shall be of the same or,
subsequent date of the drafting of the petition and shall contain the,
"date, number of paragraphs and pages of the petition.",
19. Vakalatnama shall be of the same or the date prior to the drafting,
date of the petition.,
20. The date of attestation on the vakalatnama by the Jail,
Superintendent shall be the same or subsequent to the date on which,
it was executed by the accused person.,
"21. In case of re-filing, the advocate on-record shall give a certificate",
that the defects communicated have been removed and no addition,
"or alteration in the case, as originally filed, has been made. In case",
"of material changes, such as, facts, paragraphs or page numbers,",
fresh affidavit shall be filed.,
"22. Upon re-filing of the case, the advocate on-record or advocate or",
"party in-person, as the case may be, shall get an endorsement from",
the counter Assistant on the converse of the token that the case has,
been re-filed. He shall take back the paper book of the defective,
case retained by the Registry on the same day. No request for,
return of such paper book shall be accepted after two days.,
"23. The case file/paper book shall have one common index, as given",
"below, having running pagination as per Column (iii),",
corresponding to the documents and/or applications to be kept in,
76,
Part I of the case file. The applications to be listed before the Court,
and Judge in Chamber/Court of Registrar shall be placed in Part I,
and Part II respectively. No applications included in Part II shall,
form part of the paper book.,
INDEX,
Sl. Particulars of Document Page No. of part to which it Remarks,
No. belongs,
Part I (Contents Part II,
of Paper Book) (Contents of,
file alone),
(i) (ii) (iii) (iv) (v),
1. O/R on Limitation A A,
2. Listing Proforma A1-A2 A1-A2,
3. Cover Page of Paper A-3,
Book,
4. Index of Record of A-4,
Proceedings,
5. Limitation Report A-5,
prepared by the Registry,
6. Defect List A-6,
7. Note Sheet NS1 to ..,
8. List of Dates B-Q,
9. Impugned Order 1-14 (*),
10. SLP with affidavit 15-45 (*),
11. Appendix 46-47 (*),
12. Annexure P-1 48-59 (*),
13. Annexure P-2 60-68 (*),
14. Application for c/delay 69-74 (*),
15. F/M 75 (*),
16. V/A 76-77 (*),
17. Letter to Advocate 78 (*),
18. I.A. for Substitution 79-83 (*),
19. I.A. for c/delay in filing 84-87 (*),
substitution application,
20. I.A's to be listed before 88-90 (*),
the Hon'ble Court,
Note : (*) Page numbering is for illustration only.,
77,
CHAPTER XI,
FILING AND PROCESSING OF CASES,
"I. 1. Every main case, interlocutory application, miscellaneous application or",
other documents shall be presented by the party in-person or by his duly,
authorised agent or by his advocate-on-record at the Filing Counter during,
"working hours and shall, wherever necessary, be accompanied by the",
documents required under the Rules.,
"2. Every appeal, petition or other proceeding by a minor shall be instituted or",
"defended in his name by his next friend or guardian, as the case may be.",
"3. A party, adjudged as an indigent person in the courts below, may present",
"the document before the Judicial authority of the place where he resides,",
"and the said Judicial authority, after attesting the document and endorsing",
"under his seal and signature the date of presentation, shall transmit the",
same to the Court by Registered Post Acknowledgement Due at the,
expense of the party concerned.,
The date of endorsement by the Judicial authority shall be taken as the,
date of filing in this Court.,
"4. A plaint, petition or appeal not presented at the Filing Counter shall not",
"ordinarily be accepted, unless directed by the Chief Justice or a Judge",
nominated by the Chief Justice for the purpose.,
5. A petition received from a prisoner through Officer in-Charge of the jail,
shall be treated as lodged in the Court.,
"6. A suo motu petition, in pursuance of the order of the Chief Justice or a",
Judge of the Court or an order of the Court to treat a petition as public,
"interest litigation shall be treated as a petition or letter petition, as the case",
may be.,
7. A case presented through eFiling shall be treated as lodged in the,
Court.,
8. The following cases shall be presented before the Registrar (J-I) --,
(i) an election petition under Article 71 of the Constitution read with,
"Presidential and Vice-Presidential Elections Act, 1952 (31 of 1952)",
78,
calling in question the election of a President and Vice-President.,
(ii) Reference made by the President under Article 143 of the,
Constitution.,
(iii) Reference made by the President under Article 317(1) of the,
Constitution or any Statute or by Governor under any Statute.,
(iv) Reference made by the Central Government/Statutory Tribunal,
under the provisions of any Act enabling the making of such,
Reference.,
"(v) Reference made by the Income Tax Appellate Tribunal, through its",
"President, under Section 257 of the Income Tax Act, 1961.",
(vi) Plaint under Order XXVI of the Rules.,
9. No unsigned documents and documents with improper binding shall be,
accepted at the Filing Counter.,
10. No opinion given by a former Judge or senior advocate in a case shall be,
"annexed to any case, interlocutory application or miscellaneous",
"application. If any such opinion is filed, it shall be treated as a defect and",
"shall be notified. Unless the defect is removed, the case shall not be",
registered.,
11. No undertaking in any manner whatsoever in respect of filing of a case,
shall be accepted.,
II. Filing Counter,
Stage One,
"Every main case, except otherwise provided, shall be presented to a",
"dealing Assistant at the Filing Counter, who shall --",
(i) identify the person filing the case on production of identity card in,
"case of advocate on-record, advocate authorized in that behalf or his",
registered clerk or on identification of Aadhar Card or any other,
permissible identification in respect of a party in-person;,
(ii) enter in the computer complete description of the first petitioner/,
applicant/appellant and first respondent/non-applicant and names of,
79,
their advocates;,
"(iii) in case of writ petition and transfer petition, check details through",
cause title and filing memo respectively;,
(iv) check vakalatnama and affidavit duly signed and executed;,
(v) generate Diary number and stamp the date of filing;,
(vi) cancel the court fee stamps by punching out the figure-head so as,
to leave the amount designated on the stamp untouched or by locking,
eCourt fee;,
Stage Two,
"On receipt of the case, the Assistant shall--",
"(i) enter in the computer details of the case, if any, out of which the",
main case has arisen.,
"(ii) enter F.I.R. details, in case of criminal matters;",
"(iii) enter details of the Court, wherefrom and to which Court transfer is",
"sought, in transfer petitions;",
(iv) check whether any similar or link case has been filed or disposed of,
on the basis of filing memo;,
"(v) in case of writ petition/transfer petition, check through cause title of",
the case whether any similar case is pending or has been disposed,
of;,
(vi) check whether any caveat has been lodged in the case;,
(vii) enter data as regards additional parties;,
Stage Three,
"After receipt of a main case, the scrutiny Assistant shall--",
(i) scrutinize the case as to whether it conforms with the Rules and,
practice of the Court or is defective;,
(ii) count the value of court fees stamps affixed on the memo of,
"appeal, petition or interlocutory application, miscellaneous",
"application, affidavit, vakalatnama or document separately;",
80,
(iii) extract subject category of the case;,
(iv) generate limitation report;,
"(v) if the case is found to be defective, the scrutiny Assistant shall",
enter the defects in the computer and notify them to enable the,
"advocate on-record or the party, as the case may be, to remove",
the defects within a period of twenty eight days in aggregate;,
"(vi) if the case is not found to be defective and is found to be in order,",
the scrutiny Assistant shall open the file in respect of Part-I and,
Part-II documents.,
"(vii) place such cases, as he considers to be not maintainable for any",
"reason, before the Branch Officer, who shall place the same",
before the senior officers for orders;,
(viii) where the dealing Assistant is of the opinion that court fee,
payable in a main case cannot be determined for any reason or a,
"question as regards thereto arises, he shall place the matter, through",
"senior officers, before the Registrar/Taxing Officer, who may, in his",
"discretion, require the parties to produce the relevant records to",
enable him to decide the question of court fee.,
Stage Four,
"On receipt of the case from the scrutiny Assistant, the Branch Officer or",
any other superior officer shall make verification/confirmation of --,
(i) scrutiny of the main case;,
(ii) subject category and sub-category of the main case;,
(iii) limitation;,
"(iv) tagging on the basis of identical, similar or linked case;",
(v) section and provision(s) of law under which the case is filed.,
If the main case along with interlocutory applications conforms to the,
"requirements of the Rules and practice and procedure, the main case",
shall be registered. The officer shall cause to enter the said details in the,
computer.,
81,
"If a main case is re-filed after removal of the defect(s), it shall be",
"checked and registered, provisionally, by the scrutiny Assistant if the",
"defect(s) notified has been removed, subject to verification and",
confirmation by a superior officer.,
Note,
"No case shall be tagged or linked to a case, unless ordered by the Court.",
"Any subsequent case, which is identical, similar or linked to a case,",
"shall be informed, by way of office report to the Court and a remark",
may be given in the computer.,
Stage Five,
"(i) Consequent upon registration of a main case, all papers and",
documents forming part of the case file shall be scanned/digitized.,
"(ii) Office report, if required, shall be prepared in the defect-free main",
case and case file be sent to the concerned Court Master of the,
Bench on its first listing.,
III. eFILING,
Any party or advocate on-record may file a case through eFiling by,
accessing www.sci.gov.in.,
1. A case can be filed by paying prescribed court fee and printing,
charges @ Re. 1.50 per page.,
2. No additional court fee or processing fee is required to be paid for,
eFiling.,
3. A password be given to every advocate on-record by the Registry.,
"4. A party in-person is required to submit proof of his identity, such as",
"Aadhar Card, Ration Card, PAN Card, Identity Card or Voter",
Identity Card by scanning the document.,
"5. The text of the case as also application, affidavit in opposition,",
"caveat or additional documents can be typed on the computer,",
"whereas documents, including affidavits and vakalatnamas, shall be",
scanned.,
6. A party shall convert the text and scanned documents into PDF/A,
file and upload the same on the server.,
82,
7. A unique reference number be given to every user for each case.,
8. A case filed through eFiling be scrutinized at the Filing Section in,
order to ensure that it is in conformity with the Rules and practice,
of the Court.,
"9. The defect(s), if any, and the Diary number allotted to the case be",
"communicated to the party in-person or advocate on-record, as the",
"case may be, through eMail and he may remove the defect(s) by",
accessing his case using the Diary number through re-filing option,
available in the eFiling Menu.,
"10. The notice of hearing to the party in-person, office report and",
communications to the party shall be sent through eMail on the,
eMail I.D. furnished by him.,
IV. Defective and Fresh cases,
(i) A defect-free main case shall be listed before the Court through,
"automatic allocation, unless otherwise ordered.",
"(ii) The Branch Officer shall, if he is of the view that the objection",
regarding maintainability taken by the scrutiny Assistant is,
"sustainable, he shall place the case before the In-Charge, Filing",
"Counter, who shall place the same before the Registrar or the",
"Judge in Chambers, as the case may be, on the said aspect.",
"(iii) Every main case shall be posted before the Court, Judge in",
Chambers or the Registrar under the signature of the Branch,
Officer at the Filing Counter.,
(iv) Wherever any party dies after the filing of a case but before its,
"first listing before the Court, the original cause title shall be",
retained and directions on the application to bring on record the,
"legal representative(s), if any, filed shall be sought from the",
Court through appropriate office report. If such application is,
"allowed by the Court, the cause title shall be suitably amended",
thereafter.,
V. Caveat,
1. A person claiming a right to appear before the Court on the hearing,
"of a petition may lodge a caveat in the matter, where such a petition",
83,
is expected to be lodged or has been lodged.,
"2. The caveator shall forthwith, after lodging his caveat, give notice",
"thereof to the petitioner, if the petition has been lodged.",
"3. Where, after a caveat has been lodged, any petition is filed in any",
"matter, the Registrar shall serve a notice of lodging of the petition",
on the caveator.,
"4. Where a notice of any caveat has been served on the petitioner, he",
"shall forthwith furnish the caveator, at the caveator’s expense, with",
a copy of the petition and copies of any papers lodged by the,
petitioner in support of his petition.,
5. A person intending to lodge a caveat shall furnish the following,
particulars in Form No.34:,
(i) date of judgment/order;,
(ii) name of the Court appealed from;,
"(iii) cause title and case number, if any;",
(iv) designation of the Authority; and,
"(v) particulars of the order, etc.",
"6. (a) Where the caveator is represented by an advocate on-record,",
his vakalatnama shall accompany the caveat.,
"(b) If the caveat is filed by the party in-person, his full postal",
"address, telephone number, mobile number, eMail address,",
"fax number with S.T.D. Code, if any, shall be furnished along",
with memo of appearance.,
"7. Where a caveat has been lodged, it shall not remain in force after",
the expiry of ninety days from the date of lodgment unless the,
petition has been made before the expiry of the said period.,
8. The caveat shall be presented at the caveat counter. The,
dealing Assistant shall enter the caveat in special application,
software customized for caveat matching. He shall enter the details,
of the Court appealed from in the computer and lock eCourt fee.,
"If the main case has already been filed, the dealing Assistant shall",
generate and issue caveat notice as also enter ‘IN’ code. Where,
"the main case is filed subsequently, the computer software would",
84,
alert the Assistant about the subsistence of a caveat. In such a,
"case, ‘IN’ code shall be entered in the computer barring automatic",
listing and caveat notice shall be issued.,
Note,
"In the last paragraph of every main case, the appellant/petitioner",
shall unequivocally state that no notice of lodging a caveat by the,
"opposite party is received by him or if notice of caveat is received,",
whether the appellant/petitioner has furnished the copies of the,
"memo of appeal/petition together with copies of the annexure, if",
"any, to the caveator.",
VI. Miscellaneous Document Counter,
"Interlocutory applications, miscellaneous applications, documents,",
"affidavits in opposition, replies, rejoinder affidavits, vakalatnamas, memos",
"and process applications, etc., filed in a main case shall be received by a",
"dealing Assistant at the Miscellaneous Document Counter, who shall --",
"(1) enter the details of interlocutory applications, miscellaneous",
"applications, documents, affidavits in opposition, replies,",
"vakalatnamas, memos and process applications, etc., in the computer",
and write automatically generated annual serial number on such,
documents;,
"(2) after entry in the computer, the receiving Assistant shall send the",
main case accompanied by interlocutory application(s) to the scrutiny,
Assistant.,
"All other subsequently filed interlocutory applications and documents,",
"affidavits in opposition, rejoinder affidavits, vakalatnamas and memos,",
"etc., shall be sent to the concerned Judicial branch for process.",
VII. Registrar,
1. If the defects are removed within sixty days from the date of,
"notifying the defects, but after the expiry of the stipulated period",
"of twenty eight days, an application seeking condonation of delay",
in re-filing the case shall be filed and listed before the Court of,
Registrar under Order V Rule 1(20) of the Rules.,
85,
2. A daily cause list of all cases under Order V Rule 1(20) of the,
Rules listed before the Court of Registrar shall be published and,
files of all such cases shall be sent to such Court by the Filing,
Counter.,
3. The Registrar (J-I) shall require the State and its,
instrumentalities under Article 12 of the Constitution to furnish,
"the names, addresses and eMail I.Ds. of all the advocates on-",
record authorised to appear for them. He shall maintain a,
register of all such advocates on-record and shall effect,
changes from time to time in case of re-allocation or re-,
assignment of work to the advocates on-record by the States,
and their instrumentalities.,
4. The State and its instrumentalities shall furnish their eMail,
I.Ds to Registrar (J-I) who shall get the same updated in the,
computer system. The Departments would also be able to get,
"information about the cases filed against them, which would",
"enable them to prepare for the cases well in advance, even at",
the stage of first listing.,
5.(a) Where a main case has been filed by a party in-person along with,
an application seeking permission to appear and argue in-person or,
"in case where a person has filed caveat in-person, the file of such",
case shall be placed before the Registrar for interaction and opinion,
in terms of Order IV Rule 1(c) proviso of the Rules.,
"(b) Provided that no interaction with an advocate, appearing as party",
"in-person, shall take place, subject to filing proof of his registration",
as advocate on-record or enrolment with the State Bar Council,
"under the Advocates Act, 1961.",
"(c) Consequent upon such interaction, the main case shall be listed",
before the Court for admission along with opinion by way of office,
report.,
"6. When a jail petition/appeal, wherein the accused is unrepresented,",
or a case filed by a party in-person or where a party in-person as,
respondent is not represented by an advocate on-record is placed,
"before the Registrar, he may require the Supreme Court Legal",
86,
"Services Committee to assign an advocate, who may assist the",
"Court on behalf of such person, within a week from the date of",
receipt of communication in that regard.,
"The Registrar, in case of a jail petition/appeal, can also assign an",
advocate to the prisoner from the approved panel of advocates,
maintained by the Registry.,
VIII. Judge in Chambers,
"1.(a) If a case filed, on scrutiny, is found to be defective and defects are",
not removed till ninety days from the date of communication of the,
"defects, it shall be listed with office report on default before the",
Judge in Chambers for appropriate orders.,
(b) If the defects are removed after sixty days from the date of,
"notifying the defects, an application seeking condonation of",
delay in re-filing the main case shall be filed and listed before the,
Judge in Chambers under Order V Rule 2(32) of the Rules.,
(c) Where a period for removal of the defect(s) has been stipulated by,
"the Judge in Chambers, the record of the case shall be sent to the",
"concerned dealing Assistant, who shall get the defect(s) rectified",
"and certified by the Section Officer within the stipulated period,",
failing which the case shall be sent for listing before the Judge,
in Chambers for orders on default.,
"2. If the defect(s) is removed, the case shall be sent for listing before",
the Court for admission.,
3. For the purpose of placement in chronological order for,
"listing, a defective case shall be deemed to have been filed on",
the date on which the defect has been rectified and shall ordinarily,
be listed on the date on which defect-free cases filed on the date of,
such rectification are to be listed.,
IX. Elimination Section,
"(i) Where the cases are dismissed in limine by the Court, the files of",
such cases shall be sent to the Elimination Section directly from the,
"Court. However, where notices have been directed to be issued or",
87,
"where the cases have been admitted for hearing, the files of such",
cases shall be sent to the concerned Judicial branches for follow-up,
action.,
(ii) A communication shall be sent as regards the order of dismissal to,
the Court appealed from.,
"(iii) The respondents, who contested the case in the Court appealed",
"from, shall be informed about the decision on the case after it is",
"heard ex parte, if the case stands dismissed in terms of Order XXI",
of Rule 9(3) of the Rules.,
(iv) The order passed by the Court and the letter of communication to,
"the Court appealed from or any other document, if required, shall be",
scanned/digitized.,
"(v) The case files shall then be consigned to the Record Room, under",
"acknowledgment, after completing all formalities.",
Note,
Communication be made to a party or advocate on-record through,
SMSs on the mobile phone numbers or eMails on the eMail I.Ds.,
furnished at the time of filing of the case or application or,
"documents, wherever applicable.",
Coram by Filing Counter,
"1. Subject to the orders of the Court, every case arising out of or",
relating to--,
(a) the same or common impugned judgment or order;,
(b) a separate order solely relying upon a particular judgment;,
"(c) sequel or identical, having same status, or similar matter;",
(d) same cause of action;,
(e) between cross parties; or,
"(f) an order of the Bench disobeyed, in case of contempt",
petition;,
be tagged or linked together for the purpose of coram and the same,
coram be updated for listing with office report.,
88,
"2.(a) The In-charge, Filing Counter, shall apprise the Registrar (J-I) about",
"the filing of important and sensitive cases and, if he is of the same",
"view, he shall place such cases before the Chief Justice for",
"information and order, if any.",
(b) Such cases shall be listed in accordance with the directions of the,
"Chief Justice, if any, or as per subject category through automatic",
allocation.,
Modified Check List for Scrutiny and Processing of Main Cases,
1. (i) Whether appeal/petition for special leave to appeal Yes/No,
has been filed in Form No.28 with certificate?,
(ii) Whether the prescribed court fee has been paid? Yes/No,
2. (i) Whether proper and required number of paper- Yes/No,
books (1+3) have been filed?,
(ii) Whether brief list of dates/events has been filed? Yes/No,
(iii) Whether paragraphs and pages of paper books Yes/No,
have been numbered consecutively and correctly,
noted in Index?,
"3. Whether the contents of the petition/appeal, Yes/No",
"applications and accompanying documents are clear,",
legible and typed in double space on one side of the,
paper?,
4. Whether the petition and the application bear the Yes/No,
signatures of the counsel/in-person?,
5. Whether an affidavit of the petitioner in support of Yes/No,
"the petition/appeal/application has been filed,",
properly attested and identified?,
6. If there are any vernacular documents/portions/lines Yes/No/,
"and translation of such documents are not filed, NA",
whether application for exemption from filing,
"Official Translation, with affidavit and court fee, has",
been filed?,
"7. If a party in the court below has died, whether Yes/No/",
application for bringing LRs on record indicating the NA,
89,
"date of death, relationship, age and addresses along",
with affidavit and court fee has been filed?,
8. (i) Whether the Vakalatnama has been properly Yes/No,
executed by the petitioners/appellants and accepted,
and identified by the Advocate and Memo of,
Appearance filed?,
(ii) If a petitioner is represented through power of Yes/No,
"attorney, whether the original power of attorney in",
English/translated copy has been filed and whether,
application for permission to appear before the court,
has also been filed?,
(iii)(a) Whether the petition is filed by a body Yes/No,
registered under any Act or Rules?,
"(b) If yes, is copy of the Registration filed? Yes/No",
(iv)(a) Whether the person filing petition for such Yes/No,
incorporated body has authority to file the,
petition?,
"(b) If yes, is proof of such authority filed? Yes/No",
9. Whether the petition/appeal contains a statement in Yes/No,
terms of Order XXI/XXII of Supreme Court Rules as,
to whether the petitioner has filed any petition against,
"the impugned order/judgment earlier, and if so, the",
result thereof stated in the petition?,
10. Whether the certified copy of the impugned judgment Yes/No,
"has been filed and if certified copy is not available,",
whether an application for exemption from filing,
certified copy has been filed?,
11. Whether the particulars of the impugned judgment Yes/No,
passed by the Court(s) below are uniformly written in,
all the documents?,
12. (i) Whether the addresses of the parties and their Yes/No,
representation are complete and set out properly and,
whether detailed cause title has been mentioned in the,
90,
"impugned judgment and if not, whether the memo of",
"parties has been filed, if required?",
(ii) Whether the cause title of the petition/appeal Yes/No,
corresponds to that of the impugned judgment and,
names of parties therein?,
13. Whether in case of appeal by certificate the appeal is Yes/No,
accompanied by judgment and decree appealed from,
and order granting certificate?,
"14. If the petition/appeal is time barred, whether Yes/No/",
application for condonation of delay mentioning the NA,
number of days of delay with affidavit and court fee,
has been filed?,
15. Whether the annexures referred to in the petition are Yes/No,
true copies of the documents before the Court below,
and are filed in chronological order as per list of,
dates?,
16. Whether the petition/appeal is confined only to the Yes/No,
"pleadings in the Court/Tribunal below and – if not,",
whether application for taking additional,
grounds/documents with affidavit and court fee has,
been filed?,
17. (i) In SLP/Appeal against the order passed in Second Yes/No/,
Appeal whether copies of the orders passed by the NA,
Trial Court and First Appellate Court have been filed?,
(ii) Whether required copy of the judgment/order/ Yes/No/,
notification/ award etc. is not filed? NA,
18. In matters involving conviction whether separate Yes/No/,
proof of surrender in respect of all convicts or NA,
application for exemption from surrendering has been,
filed in terms of Order XX/XXII of the Supreme,
Court Rules? (Copy of surrender proof to be included,
in the paper books.),
Whether in case where proof of surrender/separate Yes/No,
"certificate from the jail Authority has not been filed,",
an application for exemption from filing separate,
91,
proof of surrender has been filed?,
19. In case of quashing of FIR whether a copy of the Yes/No,
petition filed before the High Court under section 482,
of Cr.P.C. has been filed?,
20. In case of anticipatory bail whether a copy of FIR or Yes/No,
translated copy has been filed?,
21. (i) Whether the complete listing proforma has been Yes/No,
"filled in, signed and included in the paper-books?",
(ii) If any identical matter is pending/disposed of by Yes/No/,
"Supreme Court, whether complete particulars of such NA",
matters have been given?,
Scrutiny and Processing of Applications,
The following requirements shall be ensured for the purpose of,
"registration of an interlocutory application or miscellaneous application,",
"wherever applicable, in terms of the following check list:",
"1. Whether prescribed Court fee has been paid, wherever applicable?",
2. Whether case number has been correctly mentioned?,
3. Whether cause title of the parties is correct?,
4. Whether the applicant is a party in the main case or not?,
"5. Whether memo of parties has been filed, in case of application for",
directions?,
6. Whether particulars of the impugned order are correct?,
7. Whether the provision of the Rules under which an application is,
filed has been mentioned?,
8. Whether the application has been filed by the advocate on-record in,
"the main case; if not, whether ‘No Objection Certificate’ has been",
"taken from the earlier advocate on-record, subject to the exception",
in Order IV Rule 15 of the Rules?,
9. Whether a copy of the application has been served on the opposite,
"parties, who have entered appearance?",
"10. Whether copies of annexures, if filed, along with the application",
have been certified to be true copies?,
92,
11. Whether annexures marked in the index and body of the application,
have been put in chronological order?,
12. Whether custody certificate from jail authority has been filed in,
case of bail application?,
13. Whether application for exemption from filing certified copy or,
"official translation has been filed, wherever required?",
"14. Whether contents of the application and annexures are clear, sharp,",
"legible, in proper font size and in double space on one side of the",
paper?,
15. Whether relief sought by the petitioner/applicant has been clearly,
stated?,
16. Whether details of the case and particulars of the Trial Court/High,
Court or this Court in the prayer portion have been corrected,
mentioned?,
17. Whether the main prayer clearly indicates the purpose of the,
application?,
18. Whether affidavit has been duly filled/signed by the party and,
notarized by the Notary or any other Authority under Order IX Rule,
"7 of the Rules, without manual corrections, unless initialled?",
19. Whether the application has been properly worded without any,
unnecessary remarks against the Bench or any Judge?,
"20.(a) In case of application for intervention or impleadment, it should be",
clearly mentioned whether impleadment is sought as respondent or,
"petitioner; or intervenor, as the case may be.",
(b)Whether full address of the party seeking impleadment or,
intervention has been given?,
21. No impleadment or intervention application shall be entertained in a,
"disposed of main case, unless otherwise ordered by the Court.",
"22.(a) In case of application for substitution, proper heading shall be given",
and it should clearly indicate as to which petitioner or respondent,
has died.,
(b)The particulars of legal representative(s) of the deceased party,
"should be stated, such as, relationship, address, minor or major, age",
and lineage.,
93,
"(c) Death certificate having proper particulars, including name,",
"parentage, age and date of death should be filed.",
(d) If the application for substitution is filed by the proposed legal,
"representative of the deceased party, it shall be accompanied by",
"vakalatnama, except in the case of an application filed by a party",
other than the proposed legal representative of the deceased party.,
"(e) If the application for substitution is barred by limitation, it shall be",
accompanied by an application to set aside the abatement and,
"application for condonation of delay in filing the said applications,",
wherever applicable.,
(f) Delay shall be calculated from the date of death of a party or,
"abatement, as the case may be.",
Note,
If an application for substitution to bring on record a legal,
representative of a deceased party is not filed within ninety days,
"from the date of death, the case automatically abates. Within sixty",
"days from the date of abatement, an application to set aside the",
abatement along with application for substitution shall be filed.,
"Thereafter, an application under Section 5 of the Limitation Act",
seeking condonation of delay shall also accompany the,
applications.,
"23.(a) If a miscellaneous application for restoration, recall or rehearing a",
case or application has been filed after the expiry of a period of,
"thirty days from the date of order, it shall be accompanied by an",
application for condonation of delay.,
(b) A Record of Proceeding or order dismissing or disposing of the,
main case shall be annexed to the application.,
(c) If a case or an application has been dismissed peremptorily for non-,
"compliance in default or failure to take any steps, the compliance",
shall be pre-requisite for filing and registration of the miscellaneous,
application.,
(d) If a miscellaneous application has been filed after the expiry of a,
"period of two months from the date of the order, the paper books of",
"the main case shall also be filed by the party or advocate on-record,",
94,
"except in case of a transfer petition, where the paper books shall be",
filed after one month.,
(e) If a miscellaneous application is filed within two months from the,
"date of the order and within one month in case of transfer petition,",
the paper books of the main case shall be immediately requisitioned,
"from the Paper Books Section, so that they may not be destructed",
after the stipulated period of preservation.,
"24.(a) In case an application is found to be defective, notice under Order",
VIII Rule 6(3) and (4) of the Rules shall be given to the applicant,
requiring him to cure the defect(s) within a period not exceeding,
"twenty eight days, in aggregate.",
(b) In case the defects are not removed within the period stipulated in,
"the notice, the application shall be placed before the Registrar for",
orders under the said provision.,
25. In case an application discloses no reasonable cause or is frivolous,
"or contains scandalous matter, it shall be placed before the Registrar",
for appropriate orders under Order XV Rule 5 of the Rules.,
General,
1. Wherever Bar Council of India has been arrayed as a party,
"respondent, it shall be indicated in the office report.",
"2. No document, viz., affidavit, affidavit in opposition, rejoinder",
"affidavit, etc., shall be accepted if the date on which it is sworn is",
not mentioned on the affidavit.,
3. If an affidavit contains any blank portions in the body or in the,
"affirmation clause, which have not been duly filled, such affidavit",
shall not be accepted.,
4. No rejoinder or sur-rejoinder shall be accepted without the leave of,
the Court.,
5. In case common affidavit in opposition or rejoinder affidavit or,
other affidavit or document has been filed by or on behalf of a party,
"in a group of cases, it shall be ensured that sufficient number of",
copies for each of the cases shall be filed.,
95,
"6. In cases, like References and suo motu petitions, where there is no",
"rival party, the cause title shall be in accordance with the subject",
"matter, viz.,",
In Re.:,
“Death of 25 chained inmates in Asylum in,
Tamil Nadu”,
7. The advocates on-record are required to inform the Registrar (J-I) –,
(a)the particulars of the cases which have become infructuous by,
efflux of time;,
(b)the cases filed against interlocutory/interim orders of the Court,
appealed from where the main case is pending or disposed of;,
(c)the cases involving identical/similar question(s) of law which,
have not been tagged or linked together.,
"8. Before accepting any document, such as, affidavit in opposition,",
"rejoinder affidavit, affidavit and other documents, it shall be",
ensured that it has been served on the opposite party and the filing,
memo contains such endorsement.,
9. One petition for special leave to appeal/appeal against a common,
judgment/order passed by the Court appealed from in more than,
one case can be filed but separate diary numbers be given in,
accordance with the number of orders impugned.,
"10.Three sets of paper books, excluding the original, shall be accepted",
"in a case, except in case of an arbitration petition and a case relating",
to a Constitution Bench.,
11.A vakalatnama filed on behalf of the respondent(s) shall not be,
accepted in a case where neither notice has been issued nor the case,
"has been admitted, unless it is filed along with a caveat. If filed,",
such vakalatnama shall not be placed on the file of the case and,
shall not be recognized by the Registry.,
12.Any party in-person requiring any information in regard to a case,
"shall contact the Public Relation Officer, who may collect the",
information from the concerned branch and furnish the same to the,
96,
party in-person. The communication shall be made in writing by,
the branch with the said party and no interaction shall take place,
with the officer/officials of the concerned branch.,
97,
CHAPTER XII,
LIMITATION,
Nature of the Case Period of limitation,
Writ Petition (Civil) No limitation,
Writ Petition (Criminal) No limitation,
Transfer Petition (Civil) No limitation,
Transfer Petition (Criminal) No limitation,
Election Petition 30 days from the date of publication,
of declaration of the name of the,
returned candidate.,
Original Suit As per Limitation Act,
Petition for Special Leave to (i) 90 days from the date of the,
Appeal (Civil) impugned order.,
(ii) 60 days from the date of refusal,
of certificate of fitness to appeal.,
Petition for Special Leave to (i) 60 days from the date of the,
Appeal (Criminal) impugned order in cases involving,
sentence of death.,
(ii) 60 days from the date of refusal,
of certificate of fitness to appeal.,
(iii) 90 days from the date of the,
impugned order excluding cases,
involving sentence of death.,
Civil Appeal by Certificate of 60 days from the date of grant of,
fitness under Articles 132(1) certificate of fitness to appeal.,
and 133(1) of the Constitution,
(i) Criminal Appeal by (i) 60 days from the date of grant,
Certificate of fitness under certificate of fitness to appeal.,
Articles 132(1) and 134(1)(c),
of the Constitution,
(ii) Criminal Appeal under (ii) 60 days from the date of,
"Article 134(1)(a) and (b) of the judgment, final order or sentence.",
Constitution or under any other,
provision of law,
Appeal under Section 2 of the 60 days from the date of the,
"Supreme Court (Enlargement judgment, final order or sentence.",
98,
of Criminal Appellate,
"Jurisdiction) Act, 1970",
Appeal under Section 10 of the 30 days from the date of the order.,
Special Court (Trial of,
Offences relating to,
"Transactions in Securities) Act,",
1992,
Appeal under Section 38 of the 60 days from the date of,
"Advocates Act, 1961 communication of the order.",
Appeal under Sections 23 and 30 days from the date of the,
27A of the Consumer impugned order.,
"Protection Act, 1986",
Appeal under Section 116A of 30 days from the date of the order.,
"the Representation Act, 1951",
Appeal under Section 130E of 60 days from the date of the order,
"the Customs Act, 1962 passed by the High Court certifying",
the case to be a fit case for appeal to,
Supreme Court or the order passed,
"by the Customs, Excise and Service",
Tax Appellate Tribunal.,
Appeal under Section 35L of 60 days from the date of the order,
the Central Excise and Salt passed by the High Court certifying,
"Act, 1944 the case to be a fit case for appeal to",
Supreme Court or the order passed,
"by the Customs, Excise and Service",
Tax Appellate Tribunal.,
Appeal under Section 261 of 60 days from the date of the,
"Income Tax Act, 1961 judgment delivered by the High",
Court certifying it to be a fit case,
for appeal to Supreme Court.,
Appeal under Section 19(1)(b) 60 days from the date of the order.,
"of Contempt of Courts Act,",
1971,
Appeal under Section 15Z of 60 days from the date of the,
Securities and Exchange Board communication of the decision.,
"of India Act, 1992",
Appeal under Section 18 of the 90 days from the date of decision.,
Telecom Regulatory Authority,
99,
"of India Act, 1997",
Appeal under Section 53T of 60 days from the date of decision.,
"the Competition Act, 2002",
Appeal under Section 125 of 60 days from the date of,
"Electricity Act, 2003 communication of the",
decision/order of the Appellate,
Tribunal.,
Appeal under Section 29 of the 60 days from the date of impugned,
"Wealth Tax Act, 1957 order.",
Appeal under Section 22 of the 90 days from the date of,
"National Green Tribunal Act, communication of the award,",
2010 decision or order of the Tribunal.,
Appeal under Section 423 of 60 days from the date of receipt of,
"the Companies Act, 2013 order of the Appellate Tribunal.",
Appeal under Section 30 of the 90 days from the date of final,
"Armed Forces Tribunal Act, decision/order passed by the",
2007 Tribunal.,
60 days from the date of order of,
the Tribunal in exercise of its,
jurisdiction to punish for contempt.,
Appeal under Section 31 of the 30 days from the date of order,
"Armed Forces Tribunal Act, passed by the Tribunal.",
2007,
Appeal under Section 31 of the 90 days from the date of,
Airport Economic Regulatory decision/order appealed against.,
"Authority of India Act, 2008",
Review Petition 30 days from the date of order,
sought to be reviewed.,
Note,
"(1) Notwithstanding anything contained to the contrary, the provisions of",
"the Limitation Act do not apply to a curative petition. However, as",
"per Order XLVIII Rule 3 of the Rules, it shall be filed within",
reasonable time from the date of judgment or order passed in the,
review petition.,
100,
"(2) Where any particular number of days is prescribed by the Rules, or is",
"fixed by an order of the Court, in computing the same, the day from",
"which the said period is to be reckoned shall be excluded, and, if the",
"last day expires on a day when the Court is closed, that day and any",
succeeding days on which the Court remains closed shall also be,
excluded.,
101,
CHAPTER XIII,
LISTING OF CASES,
1. (a) The Registrar (J-I) shall list the cases before the Benches in,
accordance with the roster under the directions of the Chief Justice.,
"(b) All cases, so listed, shall be published in a cause list under the",
signature of Registrar (J-I) and ported on the official website of the,
Court.,
2. Publication of the cause list shall be the only mode of intimation of,
"listing of a case, unless otherwise ordered by the Chief Justice.",
"However, notice of hearing may be sent to a party in-person,",
"through usual mode of service, eMail or such other mode, as may",
be permitted.,
Cause List and Listing*,
1. A daily cause list of admission hearing cases shall consist of,
fresh and pending main cases as also interlocutory applications,
and miscellaneous applications in main cases --,
(a) fresh cases shall be sent for listing by the Filing Counter;,
and,
"(b) pending cases, i.e., interlocutory applications,",
"miscellaneous applications, After-notice cases, and final",
"disposal cases, shall be proposed to be listed by the",
"dealing Assistants, unless otherwise ordered.",
2. Unless otherwise directed by the Chief Justice --,
(a) admission hearing cases shall be listed on Monday and,
Friday; and,
"(b) regular hearing cases shall be listed on Tuesday,",
Wednesday and Thursday.,
3. Fresh admission hearing cases shall be included in the daily,
"cause list in chronological order, i.e., in the order of institution.",
4. A draft list of admission hearing old cases shall be uploaded on,
*Daily Cause List of Miscellaneous matters – List containing Miscellaneous matters to be listed on Monday and Friday which is,
issued on Thursday in the previous week and Monday in the same week respectively. List containing Miscellaneous matters on,
"Tuesday, Wednesday and Thursday which is issued on Saturday in the preceding week.",
Daily Cause List of Regular Hearing Matters – List containing regular hearing matters to be listed on Tuesday is issued on,
Saturday in the preceding week and list containing regular hearing matters to be listed on Wednesday and Thursday is issued on,
the previous working day. The matters in these lists are taken from the weekly list.,
"Weekly list – Advance list of Regular hearing matters to be listed on Tuesday, Wednesday and Thursday of a week issued on",
Friday in the preceding week. Specially directed matters and matters from terminal list are included in weekly list.,
Supplementary List – The matters which are directed to be listed after the issue of daily cause list which could not be shown in the,
"main list, are listed through the Supplementary List.",
102,
"the intranet, at least, a fortnight before the date of listing for the",
purpose of verification and confirmation by the dealing,
"Assistant(s) as regards the status, coram and the Court before",
which the cases or applications shall be listed.,
5.(a) An advance list of admission hearing old cases for Monday and,
Friday shall be uploaded on the website on the previous Tuesday and,
Friday respectively.,
A final cause list of admission hearing cases for Monday and Friday,
shall be issued on the previous Thursday and Monday,
respectively.,
"A supplementary list, if necessary, be issued a day before such date of",
hearing.,
(b) A weekly list and daily cause lists containing regular hearing cases,
"and admission hearing cases, if any, for Tuesday, Wednesday and",
Thursday shall be published and ported on the website on the previous,
Friday/Saturday.,
"A supplementary list of cases for Tuesday, if necessary, be issued a",
day before such date of hearing.,
"A supplementary list of cases, including the left over regular hearing",
"cases, specifically directed admission hearing and regular hearing",
"cases, for Wednesday and Thursday be issued a day before such date",
of hearing.,
(c) Separate cause lists shall be prepared and published for the Judge in,
Chambers and the Court of Registrar.,
"(d) Unless otherwise ordered by the Chief Justice or the Court, not",
reached/left over fresh admission cases be listed on the following,
admission hearing day. Such ‘After Notice’ cases shall be assigned,
auto-generated returnable dates spread out in suitable lots after four,
weeks.,
"(e) No change in the cause list, once published, shall be effected.",
"6.(a) Unless otherwise ordered, 60 admission hearing cases be listed",
"on Monday and Friday before the Court consisting of,",
(i) 45 fresh main cases; and,
(ii) 15 ‘After Notice’/final disposal cases.,
"(b) If, for any reason, the aggregate number of admission hearing",
103,
"cases exceeds the computer generated date cases, they shall be",
deferred in suitable lots after four weeks.,
"(c) On regular hearing days (Tuesday, Wednesday and Thursday),",
"unless otherwise ordered by the Chief Justice, upto ten ‘After",
Notice’ (including final disposal) cases and ten regular hearing,
cases be listed before the concerned Bench.,
(d) Regular hearing cases shall be listed in a chronological order on,
"the basis of the date of institution of the case (oldest case first),",
unless otherwise directed.,
7. A case relating to a party in-person shall be listed after giving four,
"weeks’ notice to him, unless a request is made, in writing, to the",
"Registrar (J-I) to list the case earlier, after interaction with the",
Registrar under Order IV Rule 1(c) proviso of the Rules.,
Mention Memo/Listing Proforma,
1. Any party or advocate on-record desirous of out of turn listing or,
early hearing of an admission hearing case or application on the,
ground of urgency may make oral mention before the Bench at,
10.30 a.m. by way of a prescribed listing proforma/mention memo,
in Form No.35.,
2. The Branch Officer of the concerned Judicial branch shall verify,
and endorse the listing proforma/mention memo seeking early or,
out of turn listing of a case by the party or advocate on-record.,
"3. No mention memo shall be presented, unless the concerned main",
case has been filed and case number has been allotted to it.,
"4. The Bench may, in its discretion, permit out of turn or early listing",
of cases or applications in admission hearing through an order,
issued under the authority of the Bench by the Court Master or,
through Record of Proceedings.,
5. A case or application shall be listed on the basis of a mention,
memo only if it is issued by --,
(a) the Bench which is hearing the case in question;,
(b) the Bench which has heard the case in-part;,
(c) the Bench to which the case has been allocated; or,
"(d) the Chief Justice, in case of a fresh admission hearing case",
or which does not have any coram.,
104,
The Chief Justice may also pass any orders on,
mentioning/listing in relation to clauses (a) to (c) above.,
6. The Court Master attached to the Court shall maintain a Register,
of listing proforma permitting early listing of cases by the Court.,
They shall be forwarded to the Listing Section by the Court Master,
immediately.,
7. A party or an advocate on-record may seek urgent relief/direction in,
a case by making a request in the prescribed listing proforma to the,
Registrar (J-I) on week days between 10.00 a.m. and 4.00 p.m. and,
on Saturday from 10.00 a.m. to 12.30 p.m. No request for,
mentioning shall be entertained after 4.00 p.m. on week days and,
after 12.30 p.m. on Saturday. The main case or application can be,
listed before the Court on the following working day only for the,
purpose of mentioning in case it meets the requirement for urgent,
mentioning. No case be listed under “Mentioning” on Monday.,
"8. Mentioning of cases or applications, oral or listed, shall not take",
place before a Constitution Bench.,
9. In case mentioning is not permitted on a particular day before the,
"Bench presided over by the Chief Justice, it may take place before",
the seniormost Bench of that day or as ordered by the Chief Justice.,
"Cases, Coram and Listing",
"1. Ordinarily, fresh cases, including bail cases, registered from",
Saturday to Tuesday be listed on Monday in the next week and,
fresh cases registered from Wednesday to Friday be listed on Friday,
in the following week.,
2. Fresh cases are allocated as per subject category through automatic,
"computer allocation, unless coram is given by the Chief Justice or",
the Filing Counter:,
Provided that such categories of fresh cases shall not be listed,
"before a Judge, which have been so directed. Data entry of such",
"cases be made in the computer, which excludes listing of such cases",
before that Judge.,
The admission hearing cases shall be listed in the following,
manner:,
(a) Personal appearance cases;,
(b) Settlement cases;,
105,
(c) Orders (incomplete cases/interlocutory applications/,
miscellaneous applications);,
(d) Fresh cases;,
(e) ‘After Notice’ cases; and,
(f) Final Disposal cases.,
3. The coram of the Bench where --,
(a) a main case has been listed;,
(b) notice has been issued till grant of special leave to appeal;,
"(c) a case has been dismissed, allowed or disposed of; and",
(d) a case has been heard in-part at admission hearing stage.,
shall be updated in the computer for future listing of admission,
hearing cases.,
4. The coram of the main case shall be updated if a Bench has directed,
"listing or tagging of a case pending before another Bench, unless",
otherwise directed.,
"5. In a review petition, the coram of the Bench, which passed the",
order sought to be reviewed shall be updated in the computer.,
"The case shall be listed before the Bench, which issued",
"notice. On retirement of one of the Judges, the case shall be listed",
before the Judge constituting the second/third coram. In case of,
"retirement of both/all the Judges constituting coram, the case shall",
be listed as per subject category through computer allocation.,
6. If first coram is not available on a particular day on account of,
"retirement, the case shall be listed before the Judge constituting the",
"second coram. If second coram is also not available, the case shall",
not be listed on that day.,
7. A case directed to be listed before some other Bench or before a,
Bench of which one of the Judges is not a member shall be listed as,
per subject category through computer allocation. Such admission,
hearing cases shall be listed in the next final cause list.,
8. A case directed not to be listed before a particular Judge,
constituting the first coram shall be listed before the Judge,
"constituting the second coram in a different composition, if",
"available. In case of non-availability of the second coram, the case",
"shall be listed through computer allocation as per subject category,",
after apprising the Judge constituting the second coram.,
106,
"9. On account of non-availability of the only coram in a case, the case",
shall be listed as per subject category through computer allocation.,
10. Whenever any application is filed in a pending matter after grant of,
"leave, it shall be listed before the Judge constituting the first coram",
of the Bench which granted leave.,
11. A miscellaneous application shall be listed before the Judge,
"constituting the first coram of the Bench, which disposed of the",
main case.,
"12. The Regular hearing cases are allocated as per subject category,",
unless coram is given by the Chief Justice.,
"13.(a) A part-heard case shall be updated and listed before the Bench,",
"which heard it in-part, unless it is released, in writing, from part-",
heard.,
(b) A part-heard admission hearing or a part-heard regular hearing case,
"or a specially directed regular hearing case, adjourned or part-heard,",
"but subsequently released from part-heard, on retirement of the",
Judge holding the first coram shall be listed before the second and,
"then third coram, wherever applicable, which heard the matter in-",
"part, in case such Judges are presiding a Bench. In case of non-",
"availability of the members of the Bench, the case shall be listed as",
per subject category.,
"(c) A regular hearing case bearing the single coram of a Judge, which",
"could not be taken up till the retirement, shall be listed as per the",
subject category.,
"14. If an advocate, whose cases have been directed not to be listed",
"before a Judge or Bench, files a vakalatnama at any stage",
"subsequent to the first listing of the case, it shall be brought to the",
"notice of the Chief Justice and, unless ordered otherwise, it shall be",
listed before the same coram along with an Office Report indicating,
the fact of such vakalatnama.,
15. If a case bearing single coram could not be listed before the other,
member of the Bench of which the Judge holding the coram is,
"sitting, the Judge shall be apprised and, if directed in writing, the",
case be listed before another Bench through computer allocation as,
per subject category.,
16. In the event a Constitution Bench or three-Judge Bench does not sit,
"for any reason, the cases shown before the alternative Bench shall",
be taken up and a list of such cases shall form part of the main,
cause list.,
107,
17. If the Court has directed listing of an admission hearing case as,
early as possible or has adjourned a case on the basis of a letter,
circulated by an advocate on-record without indicating the period of,
"adjournment or future date of listing, the case shall be listed",
through computer allocation on the next available slot.,
18. The admission hearing cases directed to be listed after a particular,
period shall be updated for listing by adding one more week after,
the expiry of the said period.,
"19.(a) In a contempt petition, coram of the Judges, who passed the",
"judgments/orders alleged to have been disobeyed, shall be updated",
in the computer. In case of non-availability of the members of the,
"Bench, due to retirement or otherwise, the contempt petition shall",
be listed through computer allocation as per subject category of,
‘Contempt of Court Matters’.,
"(b) A contempt petition filed in a pending main case, alleging",
disobedience/non-compliance of the order passed either by a,
Vacation Bench or by a Bench other than the one holding the coram,
"for the main case, shall be tagged with the main case and the coram",
of the main case shall be updated.,
20. Whenever a case is referred by a two-Judge Bench to a larger,
"Bench, the coram be allocated by the Chief Justice.",
"21. In curative petition, coram of the three senior-most Judges and the",
"available Judges of the Bench, who decided the case, shall be",
updated in the computer.,
A curative petition filed after modification of the original,
order/judgment be circulated to the three senior-most Judges and,
"the Judges of the Bench, who modified the original judgment/order.",
22. If a case referred to the larger/Constitution Bench is referred back,
"to the Regular Bench, it shall be listed before the Presiding Judge,",
who had initially referred the case to the larger/Constitution Bench.,
"23. A regular hearing case, awaiting the decision of the Constitution",
"Bench, shall be listed as per subject category after the decision.",
24.(a) A regular hearing case awaiting the decision in another case shall be,
"listed before the Presiding Judge of the Bench, which has rendered",
"the decision, subject to the orders of the Chief Justice.",
"(b)In respect of admission hearing cases, the cases shall be listed in",
accordance with the coram.,
25. An application for early hearing of a regular hearing case directed,
to be listed/mentioned before an appropriate Court shall be listed,
before the Presiding Judge having the coram in the case.,
In the absence of a coram and if the category of a regular hearing,
"case has been allocated to more than one Judge, it shall be listed",
through computer allocation.,
108,
26.(a) A regular hearing case directed to be listed in a particular month,
shall be shown in the first weekly list of that month through,
computer allocation as per subject category.,
(b) A regular hearing case directed to be listed in month ‘X/Y’ shall,
shown in the last weekly list of month ‘X’.,
(c) A regular hearing case directed to be listed in the first half of an,
year shall be shown in the weekly list in the first week of April of,
that year and where a case has been directed to be listed in a,
"particular year without specifying any part of that year, it shall be",
"shown in weekly list in the last week of August of that year, unless",
the case has already been taken up and irrespective of the fact,
whether the case is ready for hearing or not.,
(d) Such cases shall be treated as expedited cases and shall be included,
"in the Terminal List, as and when they are ready for hearing.",
27. If a regular hearing case has been adjourned without any direction,
"as to the future date of listing, it shall be listed on its own turn as",
per seniority.,
28. If a specific date case could not be listed on a specified date before,
the Court on account of non-availability of the Bench for any,
"reason, instructions shall be taken from the Presiding Judge as to",
the next date of listing on the file.,
29. A three-Judge Bench case adjourned without a direction as to future,
date of listing shall be listed as and when the Bench is available.,
30. If a three-Judge Bench case has been directed to be listed before a,
"Bench, other than the Bench holding the coram, and if it could not",
"be taken up by that Bench, the case shall restore to its original",
coram.,
31. The coram allotted to a case by the Chief Justice at the admission,
hearing stage shall continue even at the regular hearing stage.,
32. The left over admission or regular hearing cases on a regular,
"hearing day shall be taken up on the following regular hearing day,",
subject to the directions of the Chief Justice.,
"33. The cases taken up by the Vacation Bench shall be listed, during the",
"session of the Court, through computer allocation as per subject",
category.,
34. Five and more connected/linked regular hearing cases shall be,
"treated as a group and be listed together, unless otherwise directed",
by the Chief Justice.,
35. The regular hearing cases shall be shown in the weekly list in the,
"following order, unless otherwise directed by the Chief Justice:",
(a) Over-night part-heard cases.,
(b) Part-heard cases.,
(c) Specially directed/adjourned cases.,
109,
"(d) Other cases, as per subject category and strictly in",
accordance with inter-se ratio of pending cases in each,
subject category and in chronological order (oldest case first).,
"36. Jail petitions, habeas corpus petitions, transfer petitions and bail",
petitions in which the accused is in custody and special Category,
Cases [Subject-Category 701-706: Academic Cases; 3100:,
Admission to Educational Institutions other than Medical and,
Engineering; 3200: Establishment and Recognition of Educational,
Institutions; 4001-4003: Admission/Transfer to Engineering and,
Medical Colleges; 4100: Allocation of 15% All-India Quota in,
Admission/Transfer to Medical Colleges; 300: Direct Tax cases;,
400: Indirect Tax cases; and 1815: Matters relating to Electricity,
"Dispute (connection/disconnection, etc.)], which have been",
adjourned without any direction as regards future date of listing,
"shall be shown in the next advance list, subject to the orders of the",
Court. The same practice shall follow in the case of,
applications/preponement of hearing.,
"37. Jail petitions, habeas corpus petitions, transfer petitions and bail",
"petitions, where the accused is in custody, special category cases",
and applications for early hearing shall not be deleted on account of,
"excess matters, except in unavoidable circumstances.",
"38. A jail petition, where the accused is in custody, shall be processed",
by the concerned Branch within one week and such petition shall be,
listed before the Court on the first admission hearing day,
immediately after two weeks with the typed copy of the petition,
along with copies of the impugned order of the High Court and,
"Trial Court, irrespective of the fact, whether or not, the amicus",
"curiae, so appointed, has furnished the paper books of the case.",
"39. In ‘After Notice’ admission hearing cases, the following order of",
"priority for listing, through computer allocation, shall be followed:",
(i) Specific Date Cases;,
(ii) ‘Adjourned for’/ ‘List after’ cases;,
(iii) Cases directed to be listed in a particular month;,
(iv) Cases where returnable date in notice has been given by,
branch; and,
(v) Adjourned cases where date of listing has not been given by,
the Court/date given by the branch.,
110,
40. Excess admission hearing cases shall be deleted/shifted in the,
following order:,
(i) Cases taken from pool;,
(ii) Adjourned cases where date of listing has not been given by,
the Court;,
(iii) Cases in which notice has been issued by the Court without,
granting stay;,
(iv) Cases directed to be listed after 2/3/4 weeks and so on;,
(v) Cases adjourned for a particular period;,
(vi) Previously deleted cases;,
(vii) Transfer petitions;,
(viii) Interlocutory applications/Miscellaneous applications;,
(ix) Cases in which notice as also stay/status quo has been,
"granted, whether on ‘Mentioning’ or otherwise, and cases in",
"which notice has not been issued or issued earlier, but",
stay/status quo is granted;,
(x) Cases where accused is in jail;,
(xi) Jail petitions;,
"(xii) Bail cases, provided that bail has not been granted by the",
Court;,
(xiii) Cases involving party in-person;,
(xiv) Cases directed to be listed in a particular month;,
(xv) Specific date cases.,
41. Any direction given by the Court to list a case on a specific date or,
in specific week shall over-ride the date given by the Registry and it,
shall be treated as a specific date case.,
42.(a) Where intimation as regards non-availability of a Bench or a Judge,
"of the Bench is received prior to the preparation of final cause list, a",
cause list for that notional court shall be generated in the same,
manner as is done in the ordinary course.,
Provided that the cause list for the notional Bench shall not,
be prepared if a Judge of that regular Bench is made part of another,
regular Bench.,
(b) A note to the effect that the Bench will not sit and the cases which,
could not be taken up on account of non-sitting of the Bench will be,
taken up by the Bench on the following Tuesday/Wednesday/,
Thursday (regular hearing days) in the chronological order shall be,
displayed in the cause list of that Court and on the website.,
"(c) In case of cancellation of a Bench, on receipt of information, before",
"or after preparation of final cause list, the Chief Justice may",
111,
allocate cases from the advance list under Order V Rule 2 of the,
"Rules to the available member of that Bench for that particular day,",
if the said member is not required to sit in another Bench.,
43. If one of the connected cases has been directed to be listed on,
"‘Mentioning’, all the connected cases shall also be listed.",
44. If the Court has directed that a regular hearing case be listed for,
"hearing at an early date, such case, as and when ready, be treated as",
specially directed case and be listed in the next weekly list before,
the appropriate Bench.,
45. If a fresh case filed by party in-person is eliminated due to non-,
"sitting of the sole coram, it shall be deleted after apprising the Judge",
holding the coram and next date of listing shall be given by the,
"Registry by including it in the next advance list, if the petitioner is a",
"local resident. However, fresh date after four weeks shall be given if",
the petitioner in-person is residing outside Delhi,
"46. An interlocutory application filed in a main case, referred to a larger",
"Bench, shall be listed before the Division Bench or the three-Judge",
"Bench, as the case may be, which referred the main case, and if the",
Bench is not available due to the retirement of the Judge(s) or,
"otherwise, the interlocutory application shall be listed as per subject",
category through computer allocation.,
"47. The criminal cases, except writ petition (criminal) but excluding",
"habeas corpus petitions, where service is complete but affidavit in",
"opposition has not been filed, shall be listed before the regular",
Bench having the coram in the case and not under incomplete,
category before the Court of Registrar.,
"48. No case shall be considered for listing without written orders,",
"except in exceptional circumstances, in which case it shall be",
followed by written communication/confirmation.,
"49. The officer/official may seek written instruction/order, in case a",
direction about listing of any case is given to him by his superior. If,
"urgent direction is given verbally, written confirmation shall be",
obtained at the earliest.,
Note,
"1. Save in case of a single coram, wherever a main case or",
"application could not be listed before the first coram, it shall be",
"listed before the second and then third coram, wherever",
"applicable, and, if available, in seniority.",
112,
2. In case of non-availability of the single coram or members of the,
"Bench on account of retirement or otherwise, a case shall be",
"listed as per subject category through computer allocation,",
unless otherwise ordered by the Chief Justice or fresh single,
"coram is given, wherever such coram had been earlier given.",
3. Notwithstanding anything contained expressly or otherwise in,
"this Chapter, the Chief Justice may allocate or assign any appeal,",
cause or matter to any Judge or Judges of the Court.,
Appearance in Court of Party in-person,
"Any person not represented by an advocate on-record, subject to the",
"provisions of Order IV Rule 1(c) proviso of the Rules, can be permitted by",
the Court to appear and argue his case in-person. He can remain present,
in Court at the time of hearing of his case and be escorted by a police,
personnel. A party in-person shall maintain decorum and dignity of the,
Court during the hearing of his case.,
General,
(i) The Court Master shall update the status of the case in the computer,
forthwith. The cause list for the following day shall be prepared,
taking into account also the said updation.,
"(ii) No case shall be listed for regular hearing, unless it is certified by",
the Registrar as ‘Ready’ for regular hearing under Order V Rule,
1(30) of the Rules under pre-final hearing or certified by the,
Registrar during vacation or directed to be listed by the Court.,
(iii) No case shall be listed for regular hearing if the lower Court records,
or any other records requisitioned by the Court have not been,
"received, unless otherwise directed by the Court.",
(iv) A note shall be inserted in every cause list requesting the advocates,
"on-record to furnish list of books, if any, they intend to cite during",
"the course of hearing, well in advance, to the Court Master.",
(v)(a) Where an advocate is not available to appear before the Court on a,
particular date or during a particular period and seeks cancellation,
"of date, he may make an application under Order V Rule 1(23) of",
the Rules if the case has not appeared in the final cause list on the,
date of filing of application.,
113,
(b) Such applications in respect of cases listed on Monday shall be,
"accepted upto previous Monday and for Friday, upto previous",
"Thursday. In respect of cases listed on Tuesday, Wednesday and",
"Thursday, such applications shall be accepted upto Thursday in the",
previous week.,
"(c) Ordinarily, the Registrar shall not give specific dates for listing the",
"cases in the Court, except for adequate and special reasons to be",
recorded in writing.,
(d) A party in-person or advocate on-record may submit a letter for,
adjournment after the preparation of the final cause list to the,
Registrar (J-I) after getting the same noted by the other advocates,
"on-record for the appearing parties, at least two days prior to the",
appointed date of listing. Any objection to the request for,
adjournment shall be indicated in writing.,
"(e) Such letters may be accepted for cases listed on Monday, till",
"previous Saturday upto 11.00 a.m., and for cases listed on Friday,",
"till Wednesday upto 3.00 p.m., unless otherwise ordered by the",
Court.,
(f) A letter for adjournment shall be signed by the party in-person or,
the advocate on-record and shall contain a statement that the letter,
may be circulated at his risk.,
"(g) In case an advocate, other than an advocate on-record requests for",
"circulation of a letter, he must mention the reason why the",
concerned advocate on-record is not circulating the letter.,
(h) No application/request shall be entertained in fresh main cases,
where specific dates have been given by the Bench or cases listed,
"before the Special Bench or in part-heard cases, unless otherwise",
ordered by the Bench.,
(vi) The cases under Order V Rule 1 and Rule 2 of the Rules shall be,
listed before the Registrar and the Judge in Chambers nominated by,
the Chief Justice.,
"(vii) Unless the order passed by the Judge in Chambers is complied with,",
the case shall remain on the board of the said Court and shall not be,
listed before the Court of Registrar for compliance.,
(viii) In case the orders made by the Judge in Chamber or the Court of,
"Registrar are complied with, such cases shall be updated before the",
114,
"regular Court, even if future dates of listing have been given by the",
"Judge in Chambers or the Court of Registrar, as the case may be.",
(ix) No case included in the lists shall be deleted or shifted to a future,
"date, unless otherwise directed by the Chief Justice or the Court or",
the Registrar (J-I).,
(x) No request for listing of a urgent hearing case during vacation shall,
be entertained before 4.00 p.m. on the last working day of the Court,
and the listing of such cases shall be regulated under the orders of,
the Registrar (J-I).,
"(xi) Once a jail petition/bail matter, in which the accused is in custody,",
"has been adjourned without any particular date, week or month, or",
"notice has been issued without a particular date, it shall, subject to",
"the orders of the Court, be listed by way of next advance list.",
"(xii) If a case is referred to mediation, it shall be listed immediately upon",
"receipt of the report, unless a particular date has been given by the",
Court. The Registry shall communicate to the Mediation Centre,
accordingly.,
"(xiii) In case of preponement of a case, notice thereof shall be issued by",
Registered A.D./Speed Post or by electronic mode to the appearing,
parties or advocates on-record on their behalf.,
115,
CHAPTER XIV,
PROCEDURE AFTER LISTING,
1. A fresh main case shall be listed before the Court. If the same stood,
"adjourned for filing of additional documents or otherwise, it shall be",
listed before the Court even in case of non-compliance of the order,
with appropriate office report.,
"2. (a) As soon as notice is directed to be issued, the appellant,",
"petitioner, applicant or plaintiff, as the case may be, shall furnish",
"as many copies of the petition, appeal, suit or application as may",
be necessary for record and for service on the respondent(s),
within seven days from the date of the order:,
"Provided that where Union of India, State Government or",
any of its instrumentalities under Article 12 of the Constitution,
"are respondents/non-applicants, an additional copy shall be",
furnished for service in terms of Order LIII Rule (1)(a)(ii) of the,
Rules.,
(b) Notice to show cause shall be issued to the opposite party under,
the signature of the Assistant Registrar.,
"(c) Service of any notice, order or other document upon a person,",
who is not represented and who resides at a place within the,
"territory of India, may ordinarily be effected through pre-paid",
envelope registered for acknowledgement or speed post or,
"electronic mode, wherever applicable, or through District Judge",
concerned or through such other modes in terms of Order LIII,
"Rule (3) of the Rules or Order V of the Code of Civil Procedure,",
"1908 or Chapter VI of Code of Criminal Procedure, 1973.",
(d) Except where the notice or process has been served through the,
"Registry, the party required to effect the service shall file an",
"affidavit of service along with such proof thereof, as may be",
"available, stating the manner in which the service has been",
116,
effected.,
"3. The mode and manner of service of notice, order or other document",
have been dealt with in Chapter XVII.,
4. In a case arising out of an interlocutory order or any proceeding,
"pending in the Court below, the notice may be served on the advocate",
appearing for the party in the Court/Tribunal before whom the case is,
pending.,
"5. Upon grant of special leave to appeal or the appeal being admitted, the",
"petition for special leave be treated as the petition of appeal, subject to",
"payment of additional court fee, if any, and Notice of Lodgment of",
Petition of appeal be served on the respondent(s) through the Court,
appealed from.,
As soon as the appeal is ready for regular hearing and certified as,
"such by the Registrar under pre-final hearing or during vacation, in",
"office, or by the Court, it shall be updated as ‘Ready’ by the dealing",
Assistant in the Terminal List.,
"6. In case of appeals, statutory or otherwise, notice shall mean show cause",
notice and Notice of Lodgment of Petition of Appeal shall be sent once,
the appeal has been admitted by the Court:,
Provided that if the respondent had been served with notice in,
"the petition/appeal or had filed caveat or had taken notice, no further",
notice is required after the lodging of the appeal.,
7. If the notice sent by registered post does not return within 30 days,
"from the date of issue, postal inquiry shall be made and after",
"ascertaining the status of the delivery from the track report, the case",
shall be listed in the Court of Registrar with office report.,
"8. If any notice is received back unserved, the advocate on-record shall",
"be requested to take necessary steps for completion of service and, if",
"no steps are taken within twenty eight days, the case shall be",
processed before the Judge in Chambers with office report on default.,
117,
9. If Notice of Lodgment of Appeal sent to the Court appealed from is,
"not received back within sixty days, the Registrar of that Court shall",
be requested to expedite the process. The advocate on-record may also,
be required to take steps to effect service on the opposite party.,
"10. The respondents, who contested the matter in the Court appealed",
"from, shall be informed about the decision on the petition/appeal after",
"it is heard ex-parte, if the petition/appeal stands dismissed in terms of",
Order XXI Rule 9(3) of the Rules.,
11. The respondent shall file affidavit in opposition within thirty days from,
the date of receipt of notice or not later than two weeks before the date,
"appointed for hearing, unless otherwise directed by the Court, or where",
separate provision exists in the Rules.,
12. The statement of case/written brief be lodged by the parties in terms of,
"Order XIX Rules 32 to 35, Order XXI Rule 11, Order XXXVIII Rule",
11(3) and Order XL Rule 7 of the Rules.,
Provided that if the appellant does not file a statement of case,
within the stipulated period of forty five days of the service on him of,
"the notice of authentication of the record, it shall be presumed that the",
appellant has adopted the list of dates/synopsis as the statement of,
case and does not desire to file any further statement of case:,
"Provided further that where a respondent, who has entered",
"appearance, does not file a statement of case within thirty five days",
"from the date of service of statement of case of the appellant, it shall",
be presumed that the respondent does not desire to lodge statement of,
case in the appeal.,
"13. Where any party makes an interlocutory application to the Court,",
"including an application for vacating the interim order, that",
application shall be processed within three working days from the date,
of filing of such application and be listed before the appropriate,
118,
"Bench for orders. Similarly, miscellaneous application shall be",
processed within seven days from the date of its filing.,
14. In case the Court has directed deletion of the name of first petitioner,
or first respondent or has dismissed/disposed of the case in relation,
"thereto, the name shall be deleted accordingly and the second",
"petitioner or second respondent, as the case may be, be shown as the",
first party but the serial number of the said party shall not be altered.,
"Similarly, serial number in respect of other parties shall, in no case,",
be altered.,
"15. (i) (a) In criminal cases, as soon as notice is directed to be",
"issued, the appellant/petitioner shall take steps to serve",
notice on the respondent.,
"(b) In cases filed by convicted persons, notice shall be given",
to the Attorney General for India or the Advocate,
General or the Government advocate of the State,
"concerned, or to both, as the case may be; and in cases",
"under Section 341(1) of the Code, to the respondent.",
(c) Where a party in-person as respondent is not represented,
"by an advocate on-record, the Secretary",
General/Registrar may require the Supreme Court Legal,
Services Committee to assign an advocate or an advocate,
may be appointed from a panel of advocates maintained,
"by the Registry, who may assist the Court on behalf of",
such person:,
Provided that where an application to appear and,
"argue in-person is filed by a respondent, it shall be",
placed before the Registrar under Order IV Rule 1(c),
proviso of the Rules for interaction and opinion,
thereon.,
(ii) (a) The advocate appointed as amicus curiae by the Court,
or from the panel of advocates at the cost of the State,
"shall be entitled to fee at the rate of Rs. 6,000/- at the",
119,
"admission hearing stage and Rs. 10,000/- at the final",
"disposal stage or at the regular hearing stage, as fixed",
"by the Chief Justice, or as may be ordered by the Court,",
wherefor a certificate in the Form No. 10 shall be,
issued.,
(b) The advocate shall not be entitled to fee if he,
remained absent at the time of hearing and disposal of,
the case.,
(c) The State concerned shall pay the fee specified in the,
certificate within three months from the date of,
"presenting the claim before it, supported by the",
certificate.,
"(iii) If service of notice is complete, the special leave petitions and",
criminal appeals shall be processed for listing before the,
Court even if affidavit in opposition has not been filed and,
shall not be processed for listing before the Court of Registrar,
in default on this count.,
(iv) The respondent shall file affidavit in opposition within thirty,
days from the date of receipt of notice or not later than two,
"weeks before the date appointed for hearing, whichever be",
earlier.,
"(v) Upon grant of special leave, the petition for special leave shall",
be treated as petition of appeal and shall be registered and,
numbered as such.,
"(vi) A separate register shall be maintained for cases which, in the",
"opinion of the Court, can be disposed of within an hour or two",
and which fact has been indicated in the order made by the,
Court to enable the Chief Justice to constitute the Bench for,
disposal of such cases.,
"(vii) Due notice shall be given to the accused, where he is not",
"represented, of the date fixed for the hearing of the appeal. The",
"accused person may, if he so wishes, present his case by",
120,
submitting his arguments in writing and the same shall be,
considered at the hearing of the appeal.,
"(viii) The Registrar shall, after the disposal of the appeal, with the",
"utmost expedition, send a copy of the Court’s judgment or order",
to the High Court or Tribunal concerned.,
"(ix) No security for costs shall be required to be deposited, and no",
"court-fee, process fee, or search fee shall be charged.",
"(x) Except where specifically otherwise provided in the Rules, the",
"provisions of Order XX of the Rules, with necessary",
"modifications and adaptations, shall apply to statutory appeals",
filed under any enabling Act or provision.,
Note,
(a) Every appeal or petition against sentence and acquittal and,
"every other appeal or petition, except an appeal from a",
sentence of fine shall finally abate on the death of an accused:,
Provided that where the appeal is against conviction,
"and sentence of death or of imprisonment, and the appellant",
"dies during the pendency of the appeal, any of his near",
"relatives (parent, spouse, lineal descendant, brother or sister)",
"may, within thirty days of the death of the appellant, apply to",
the Court for leave to continue the appeal and if leave is,
"granted, the appeal shall not abate.",
(b) The fact of death of an accused on the basis of a death,
certificate or application or otherwise shall immediately be,
brought to the notice of the Court.,
Original Records,
"1. In main civil cases, upon being admitted or grant of special leave",
"to appeal, the original record shall not be requisitioned, unless",
ordered by the Court. The Court appealed from may be requested that,
"the original record may be requisitioned at a later stage, as and when",
121,
"specifically directed by the Court, and the same may not be weeded",
out during the pendency of the case in this Court till a communication,
regarding disposal of the said case is received from the Registry of,
this Court.,
"2. In main criminal cases, upon being admitted or grant of special",
"leave to appeal, the original record shall be requisitioned:",
Provided that the original record in an admission hearing case,
"shall not be requisitioned, unless specifically requisitioned by the Court.",
3. Where the original record of a case is available in digitized/scanned,
"form, the original record of such case shall not be requisitioned in",
"physical form, unless otherwise directed by the Court:",
Provided further that the Court appealed from and the Courts,
immediately below shall be informed that depositions in the original,
record shall be in English language or translated into English language,
and the translation shall be done in that respective Registry before,
transmitting the original record to the Court.,
"Provided further that, if ordered, preparation of record shall be",
done in terms of Order XIX Rules 11 to 24 and Order XX Rules 7 to 13,
of the Rules.,
4. In case any original record has been requisitioned back by the Court in a,
"pending case before it or otherwise, the original record may be sent back,",
"subject to the orders of the Judge in Chambers, with a request to re-",
transmit the same expeditiously.,
"5. Where original record has been requisitioned, it shall be transmitted",
back to the Court(s) concerned immediately after the disposal of the,
main case.,
6. The Original Record branch shall have the custody of the records. It,
shall be responsible for the transmission of the record under,
acknowledgment.,
7. The original records of the cases listed before the Bench shall be,
"transmitted by the Dealing Assistant, under the supervision of the",
122,
"Branch Officer, to the Court Master of the Bench by 10:00 a.m.",
The Court Master shall return the records immediately after the,
"Bench has transacted business for the day, unless otherwise",
ordered by the Bench. The transmission of records shall be under,
acknowledgment.,
"8. (a) In criminal cases, if the High Court paper books are not",
"available, the appellant shall file appeal records containing",
"additional documents, including F.I.R., charge-sheet,",
"evidence/deposition, etc., within a period of six weeks of the",
"intimation as regards receipt of original record, supported by an",
affidavit. Within two weeks of service thereof on the,
"respondent, he may file such documents as are not included by",
the appellant.,
(b) In case sufficient sets of paper books of the Courts below are,
"not available or the impression is dim or illegible, a notice shall",
issue to the advocate on-record for the appellant requiring him,
to get sufficient number of legible paper books prepared within,
one week of receipt of notice.,
9. (a) Where the original record is received in a sealed/packed,
"condition, it shall be opened and checked jointly by two",
"officials, one each from concerned Judicial branch and Section",
"V. However, in case the original record is found to be unsealed,",
"it shall, in addition, be checked jointly by an official from R&I",
branch.,
(b) If the record is found to be in torn/mutilated condition or,
"incomplete, this fact shall be jointly recorded by all the officials",
and stated in the letter of acknowledgment of the record to the,
concerned Court.,
(c) If the original record is received without any list/index of,
"documents, the acknowledgment letter shall mention this fact as",
also the total number of files or sheet contained in the original,
record.,
123,
(d) At the time of transmission of original record to the concerned,
"Court, the forwarding letter shall be prepared by the concerned",
branch and shall mention that “the original record is returned,
herewith duly verified as per the letter/list of documents,
received from the said Court” and a copy of the list shall also be,
"enclosed with the forwarding letter. While returning, it shall be",
"checked, packed and sealed in Section V, custodian of original",
"records, in the presence of the officials from both the branches.",
(e) The concerned Court/Tribunal/lower Court/Authority may be,
requested to depute special messenger to take back the original,
"record. However, the original record relating to the",
Court/Tribunal/lower Court/Authority in far-off places may be,
sent by Registered Post/insured parcel.,
(f) The acknowledgment receipt shall be kept in the file. In case no,
acknowledgment is received within two weeks of the despatch,
"of record, the matter shall be pursued with the concerned Court",
till the acknowledgment is received.,
"Orders granting Stay, Bail, Release, etc.",
"(i) Where an order directing issue of notice and/or grant of stay, status quo,",
"injunction or ad interim directions has been made ex-parte or otherwise,",
a certified copy of the order shall be sent to the Court appealed from.,
"(ii) Where an order granting anticipatory bail, bail or suspension of",
sentence has been made to the satisfaction of the Trial Court or any,
"other Authority, a certified copy of the order shall be sent to the Court",
"appealed from, Courts immediately below and/or the Authority",
concerned.,
"(iii) In case of release or bail, except in clause (ii) above, wireless message,",
"in addition, shall be sent forthwith to the concerned Jail authority.",
"(iv) The Officer In-charge, Courts, shall ensure that the Record of",
"Proceedings, judgments or orders of the Court are immediately sent",
124,
to the concerned branches.,
Procedure Where a Case is not being Diligently Prosecuted,
(i) If a party fails to take requisite steps in the main case and it appears,
"that he is not prosecuting the case with due diligence, the Registrar",
"shall call upon him to explain the default and, if default is not made",
good and no explanation is offered within the stipulated time or if,
"the explanation offered appears to be insufficient, the Registrar may",
issue him show cause before the Court as to why the case should not,
be dismissed for non-prosecution.,
"(ii) If service of any notice, order or document has not been completed",
"within six months from the date of issue of notice, the matter shall be",
reported to the Court for direction after notice to the parties in-person,
or the advocates on-record for the parties. The Court may thereupon,
"dismiss the case for non-prosecution or give such direction in the case,",
as it may deem fit.,
Writ Petition,
"(i) If the Court, on preliminary hearing, orders issue of show cause notice",
"to the respondent, he shall file his objections within thirty days from",
the date of receipt of such notice or not later than two weeks before,
"the date appointed for hearing, whichever is earlier, unless directed",
otherwise by the Court.,
"(ii) Unless otherwise ordered by the Court, rule nisi together with a copy",
of the petition and of the affidavit in support thereof shall be served on,
the respondent not less than twenty one days before the returnable,
date. The rule shall be served on all persons directly affected and on,
"such other persons, as the Court may direct.",
(b) Affidavits in opposition shall be filed in the Registry not later than,
four days before the returnable date and affidavits in reply shall be,
filed within two days of the service of the affidavit in opposition.,
125,
"(c) No further affidavit in opposition, rejoinder, affidavit or document",
"shall be filed by any party, except with the leave of the Court.",
(iii) (a) The petitioner shall file written brief within four weeks of the,
filing of the pleadings. Within four weeks of receipt of,
"petitioner’s brief, the respondent shall file his written brief. The",
reply brief shall be filed by the petitioner within one week of,
the receipt of respondent’s brief.,
(b) No party to a petition shall be entitled to be heard by the Court,
unless he has previously lodged his written brief in the petition.,
Writ of Habeas Corpus,
"(i) The processing, listing, hearing and disposal of a writ petition in the",
nature of habeas corpus shall be expedited.,
"(ii) Rule nisi shall issue, if Court so orders, calling upon the person(s)",
against whom the order is sought to appear on a day to be named,
"therein to show cause why such order should not be made and, at the",
"same time, to produce in Court the body of the person(s) alleged to be",
illegally or improperly detained.,
"(iii) The case shall be listed before the Court on the next date of hearing,",
irrespective of the fact whether or not service of notice has been,
effected or affidavit in opposition has been filed.,
"(iv) The order for release, setting the person(s) improperly detained in",
"custody at liberty, made by the Court shall be a sufficient warrant to",
"any goaler, public official, or other person for the release of the person",
under restraint.,
Contempt Petition,
"(i) If the Court, on preliminary hearing, directs that notice shall issue to the",
"alleged contemnor, notice to the person charged shall be in Form No.1",
given below:,
126,
FORM I,
NOTICE TO PERSON CHARGED WITH CONTEMPT OF COURT,
IN THE SUPREME COURT OF INDIA,
(Inherent Jurisdiction),
Whereas your attendance is necessary to answer a charge of,
contempt of Court by (here briefly state nature of the contempt).,
You are hereby required to appear in person (or by advocate if,
the Court has so ordered) before this Court at New Delhi on the,
………day of ………20………..,
You shall attend the Court in person* on the ………day of,
"…..20……, and shall continue to attend the Court on all days",
thereafter to which the case against you stands adjourned and until,
final orders are passed on the charge against you.,
Herein fail not.,
Dated this……..day of ……….20……,
(SEAL) REGISTRAR,
(*To be omitted where the person charged is allowed or ordered to,
appear by advocate).,
"(ii) The person charged shall, unless otherwise ordered, appear in-person",
"before the Court, as directed, on the date fixed for hearing of the",
proceeding and shall continue to remain present during hearing till the,
proceeding is finally disposed of by order of the Court.,
(iii) A copy of the petition along with the annexures and affidavits shall be,
served upon the person charged and he may file his reply duly,
supported by an affidavit.,
"(iv) No further affidavit or document shall be filed, except with the leave",
of the Court.,
127,
(v) The Court may direct a warrant bailable or non-bailable for arrest of,
"the person charged, if it has reason to believe that he is absconding",
"or is otherwise evading service of notice, or if he fails to appear in",
"person or fails to remain present in-person, in pursuance of the",
notice.,
(vi) The warrant of arrest shall be issued in the prescribed Form No.II,
under the Rules to Regulate Proceedings for Contempt of the Supreme,
"Court, 1975, as given below :",
FORM II,
WARRANT OF ARREST,
IN THE SUPREME COURT OF INDIA,
(Inherent Jurisdiction),
To,
(Name and designation of the person or persons who is or are to,
execute the warrant).,
Whereas ….of …….is charged with committing contempt of,
"this Court, you are hereby directed to arrest the said……….and to",
produce him before this Court.,
Herein fail not.,
"(If the Court has issued a bailable warrant, the following",
endorsement shall be made on the warrant).,
If the said …….shall give bail in the sum of Rs. ……with one,
surety in the sum of Rs. ……(or two sureties each in the sum of,
"Rs……….) to attend before this Court on the …….day of ……….,",
"20….., and to continue so to attend until otherwise directed by this",
"Court, he may be released.",
128,
Dated this ……day of …….20…….,
(SEAL) REGISTRAR,
(vii)(a) The warrant shall be executed by the officer or officers to whom it,
is directed or by any other police officer whose name is endorsed,
upon the warrant by such officer(s).,
(b) If the warrant is to be executed outside the Union Territory of,
"Delhi, it may be forwarded to the Magistrate of the District or the",
Superintendent of Police or Commissioner of Police of the,
"District, within which the person charged is believed to be",
residing.,
(viii) The bond and bail-bond after arrest under a warrant has been,
"prescribed in Form No.III, as under :",
FORM III,
BOND AND BAIL-BOND AFTER ARREST UNDER A WARRANT,
IN THE SUPREME COURT OF INDIA,
(Inherent Jurisdiction),
"I,…………………….(name) of ……….being brought before",
the District Magistrate of ………….(or as the case may be) under a,
warrant issued to compel my appearance to answer to the charge of,
contempt of the Supreme Court do hereby bind myself to attend the,
"Supreme Court on the ……..day of………….next, to answer to the",
"said charge, and to continue so to attend, until otherwise directed by",
"the Supreme Court; and, in case of my making default herein, I bind",
"myself to forfeit to Union of India, the sum of Rupees………….",
Dated this ………day of ………..20…..,
129,
(SIGNATURE),
I do hereby declare myself surety for the above-,
named………………of…………..that he shall attend before,
"………….in the Supreme Court on the……….day of ……….next, to",
"answer to the charge on which he has been arrested, and shall continue",
"so to attend until otherwise directed by the Supreme Court; and, in",
"case of his making default therein, I bind myself to forfeit to Union of",
"India, the sum of Rupees…………….",
Dated this day of ………….20……,
(SIGNATURE),
(ix) Where a person charged with contempt is adjudged guilty and is,
"sentenced to suffer imprisonment, a warrant of commitment for",
"contempt and detention shall be made out in Form No.IV, as given",
"below, under the signature of the Registrar, which shall remain in",
force until it is cancelled by order of the Court or until it is,
executed.,
FORM IV,
WARRANT OF COMMITMENT FOR CONTEMPT,
IN THE SUPREME COURT OF INDIA,
[Inherent Jurisdiction],
To the Superintendent (or Keeper) of the jail at……………,
Whereas at the Court holden on this day (name and description,
of the contemner) has been adjudged by the Court guilty of wilful,
"contempt of Court, and he has been sentenced to suffer imprisonment",
for the period……….(here specify the term) and/or to pay a fine of,
Rupees……..,
"This is to authorize and require you, the Superintendent (or",
"Keeper) of the said Jail, to receive the said (name of the contemner)",
130,
"into your custody, together with this warrant, and to keep him safely",
in the said Jail for the said period of (term of imprisonment) or for,
such shorter period as may hereafter be fixed by order of this Court,
and intimated to you. You are directed to return this warrant with an,
endorsement certifying the manner of its execution.,
You are further directed that while the said……….is in your,
"custody, produce the said…..before the Court, at all times when the",
Court shall so direct.,
"Given under my hand and the seal of the Court, this………day",
of……20…….,
(SEAL) REGISTRAR,
General,
"1. In case any request is received by way of a letter, application or report",
from a subordinate Court/Authority/Arbitrator/Court Commissioner,
"seeking extension of time, the request be converted into miscellaneous",
application and shall be placed before the Court expeditiously with the,
remark “Request from Subordinate Court/Authority/Arbitrator/Court,
"Commissioner, as the case may be, for extension of time”.",
"2. While issuing clearance for urgent mentioning of cases and applications,",
the Branch Officer and the dealing Assistant shall physically verify and,
ensure that paper books of the main case are available and complete in,
all respects.,
3. An appeal against the order of the Registrar under Order XV Rule 5 of,
"the Rules shall be listed expeditiously, not later than a fortnight.",
4. Office report for cases listed on a Friday and Monday shall be circulated,
and uploaded by 6.00 p.m. on the previous Wednesday and Friday,
respectively.,
131,
"Office report mentioning filing of affidavit in opposition,",
"rejoinder affidavit, documents, etc., shall include reference to page",
numbers concerned in bracket.,
5. Fresh office report shall be prepared in case the office report is of a much,
earlier date.,
"6. Where the Court has directed a case to be tagged with another case, the",
"Branch Officer shall, after due care, get the case tagged and updated in",
the computer.,
7. Notion of Motion shall issue only in case where ad interim ex parte,
order is sought and where delay caused by notice would or might entail,
serious hardships.,
"8. No case updated before the Court shall be deleted/eliminated, under any",
"circumstances, except under the orders, in writing, of the Registrar [J-I].",
"9.(a) Where a requisition, in writing or otherwise, has been received by a",
"Judicial branch in respect of paper books in its custody, the Branch",
Officer shall send the said paper books on the same day before 1.00 p.m.,
"without fail. In no case, the Branch Officer and the concerned dealing",
Assistant shall leave the office without acknowledgment of the receipt of,
such paper books from the Paper Books branch.,
(b) The Branch Officer shall ensure that copies of Record of Proceedings,
and other documents are sent to Section I-A Annexe [paper books,
"godown] without any delay, in order to enable the officials to include",
them in the paper books promptly.,
10. The last Record of Proceedings shall be kept on record at the time of,
listing of the case or application either before the Court or Judge in,
Chambers or the Court of Registrar. In case the last Record of,
Proceedings could not be obtained for any reason and if it is obligatory,
"to list the case again, an appropriate office report shall be prepared",
disclosing the previous date of listing and the fact that last Record of,
Proceedings is still awaited.,
132,
11. A dealing Assistant shall make a note in the file that copies of Record of,
Proceedings of the specific dates have been sent to the Paper Books,
branch for inclusion in the paper books or have been included in the,
paper books.,
12. A dealing Assistant shall not again send a Record of Proceedings to the,
"Paper Books branch, which has already been included in the paper",
books.,
"13. No unregistered or defective application shall be listed before the Court,",
unless otherwise directed by the Court.,
Note,
"Where any particular number of days is prescribed by the Rules, or is",
"fixed by an order of the Court, in computing the same, the day from",
"which the said period is to be reckoned shall be excluded, and, if the last",
"day expires on a day when the Court is closed, that day and any",
succeeding days on which the Court remains closed shall also be,
excluded.,
133,
CHAPTER XV,
JAIL PETITION,
A person lodged in jail and not represented by an advocate on-record can,
submit a petition/appeal along with a certified copy of the impugned,
"judgment and written arguments, which he desires to advance in support of",
"his petition/appeal, to the Officer in-Charge of the Jail where he is lodged.",
The Officer in-Charge of the Jail shall forward the petition/appeal to this,
Court. A true copy of the judgment of the Court immediately below is,
required to be filed in cases under Order XX Rule 5(1) of the Rules. In case,
the petition/appeal has been filed after expiry of the prescribed period of,
"limitation, an application for condonation of delay be filed. The date on",
which the petition/appeal is presented before the Officer in-charge of the Jail,
"and is attested by him, is taken as the date of filing of the petition. The",
petition/appeal must contain a statement that no similar petition has been,
filed earlier.,
Processing,
1. The jail petition/appeal shall be processed by the dealing Assistant,
within three days of its receipt.,
"2. The concerned department of the State, Courts and Jail authority shall",
be informed forthwith by telegram or electronic mode about the filing,
"of the case, if it relates to sentence of death. The date, if any, fixed for",
execution shall be ascertained forthwith from the jailor for the,
information of the Court by way of office report.,
3. Having ascertained from the Supreme Court Legal Services,
"Committee that similar petition/appeal has not been received by it, the",
Registry shall process the case.,
"4. The Registrar shall, whenever necessary, call from the proper officer",
of the Court appealed from the relevant documents for determination,
of the petition.,
"5. As soon as all necessary documents are available, the Registrar shall",
134,
require Supreme Court Legal Services Committee to assign an,
advocate or assign an advocate from the panel maintained by the,
Registry to act as an amicus curiae on behalf of the accused and he,
shall be advised to contact the prisoner.,
6. (i) The photocopies of all the documents received from Jail,
authority shall be supplied to the amicus curiae to enable him to,
"draft the petition for special leave to appeal/appeal, prepare the",
paper books and submit the same to the Registry within fifteen,
days.,
"i. The charges for typing, translation, binding and",
"photocopying, except for the photocopies supplied by the",
"Registry, shall be paid to him by the Registry.",
ii. A certificate shall be issued to the amicus curiae engaged,
at the cost of the State specifying the fee payable to him,
"by the State. Unless otherwise ordered by the Court, the",
"fee of amicus curiae shall be Rs. 10,000/- for final",
"disposal stage or the regular hearing stage and Rs. 6,000/-",
for the admission hearing stage.,
iii. The amicus curiae shall not be entitled to any fee in case,
of his absence at the time of hearing and disposal of the,
case.,
7. The petition/appeal accompanied by a certified copy of the impugned,
"judgment, including a true copy of the Court immediately below, if",
"any, shall be sufficient for the purpose of registration and first listing",
"before the Court, without requisitioning other documents at that stage.",
8. In case the petition/appeal is not accompanied by a declaration on,
affidavit that no similar case had been filed earlier or it suffers from,
"defects, such as,",
i. non-disclosure of requisite particulars of the case or Court from,
whose order it arises and such particulars cannot be ascertained,
from the documents filed; or,
135,
ii. it is not accompanied by a certified copy of impugned,
judgment/order; or,
iii. it is barred by limitation and is not accompanied by application,
for condonation of delay; or,
"iv. it suffers from such other defects, which are required to be",
removed to bring the petition/appeal in conformity with the,
Rules on account whereof it will not be possible for the Court,
"to hear the matter,",
the defects shall be communicated to the petitioner/appellant,
through Jail authority requiring him to remove them within,
twenty eight days from the date of receipt of such,
communication failing which the petition/appeal may be,
dismissed for default.,
A copy of the communication shall be endorsed to the Jail authority,
and amicus curiae requiring them to assist the petitioner/appellant to,
remove the defects.,
"9. In case the defect(s) is not removed, despite communication, the",
petition/appeal shall be placed with diary number (unregistered),
before the Court with comprehensive office report indicating the,
"defect(s) and a copy thereof shall be sent to the petitioner/appellant,",
through the officer in-charge of the jail and the amicus curiae.,
"10. A typed transcript copy of the petition/appeal, impugned",
"judgment/order or other documents sent by the petitioner/appellant,",
"which are handwritten in English or have dim impression, shall be",
prepared by the Registry.,
"11. In case the documents are in vernacular language, the same shall be",
translated in English at the Registry.,
"12. If a transfer petition, or a writ petition alleging violation of a",
"fundamental right received from jail, lacks necessary particulars and is",
"found to be defective, the procedure in clause (8) above, with",
136,
"necessary modifications, shall be followed.",
"13. The High Court be requested to furnish complete memo of parties, if",
the same is not indicated in the impugned judgment/order but listing,
of the case shall not be deferred on this count.,
14. If the petition/appeal discloses no reasonable cause or is frivolous or,
"contains scandalous matter, the Registrar may decline to register the",
same and the entire order passed by the Registrar under Order XV,
Rule 5 of the Rules shall be communicated to the petitioner/appellant.,
He shall also be informed of the right to appeal and limitation,
therefor.,
"15. No records shall be requisitioned from the Courts below, unless",
otherwise directed by the Court or found necessary for the purpose.,
16. The fact that the petitioner/appellant stands released from prison,
"during the pendency of the case, having served out the sentence",
"awarded by the Court below, does not render the petition/appeal",
infructuous but the said fact shall expeditiously be brought to the,
notice of the Court.,
17. In case of default in compliance with the directions of the Court or,
"with any requirement of the Rules, practice and procedure, the case",
shall be placed before the Court along with appropriate office report,
for directions.,
General,
1. If an amicus curiae does not appear before the Court on the date of,
"hearing, his name shall be struck off from the panel of amicus curiae",
"under the orders of the Registrar, unless the lapse is condoned by the",
Court and subject to any other directions of the Court.,
2. The period of sentence should invariably be indicated in the office,
report as also on top of the Part II file.,
137,
CHAPTER XVI,
CONSTITUTION AND FUNCTIONS OF THE JUDICIAL BRANCH,
Preliminary,
1. The Judicial branches of the Registry shall be responsible for --,
(i) receipt and processing;,
(ii) listing;,
(iii) requisitioning of original records;,
(iv) compliance with Court orders;,
(v) custody and maintenance of paper-books;,
"(vi) receipt of spare copies and preparation of notices, etc.;",
(vii) receipt and disbursement of Court deposits and suitors’ fund;,
(viii) translation;,
"(ix) preparation of decrees, memos of cost, certificates and writs;",
(x) delivery of certified/unauthenticated copies;,
(xi) maintenance and destruction of records;,
(xii) scanning of records; and,
matters incidental thereto in respect of main cases and/or documents,
filed therein.,
2. There shall be the following Judicial and ancillary branches—,
(i) Filing Counter,
(ii) Civil Branches,
(iii) Writ Branches,
(iv) Criminal Branches,
(v) Listing Branch,
(vi) Transfer Petition Branch,
(vii) Paper-books Branch,
(viii) Translation Branch,
(ix) Copying Branch,
(x) Cash Branch in relation to Court deposits and suitors’ fund,
(xi) Decree Branch,
(xii) Receipt and Issue Branch,
(xiii) Editorial Branch,
138,
(xiv) Scanning Branch,
(xv) Elimination Branch,
(xvi) Record Room,
3. A branch shall be headed by a Branch Officer and an Assistant,
"Registrar. Additional Registrar or a Deputy Registrar, as the case",
"may be, shall be the in-charge of the branch.",
4. All officers and officials of the Judicial branch shall work under,
the control and general supervision of the Registrar.,
5. A Court Assistant or a Junior Court Assistant may be attached to a,
dealing Assistant as a unit. The attached Assistant may assist the,
dealing Assistant in day-to-day work and deal with his case files and,
perform duties in his absence on account of leave by operating through,
the password to be allotted by the Computer Cell for the period of,
"absence or, in case of extreme exigency, through the password allotted",
to the Branch Officer of the branch.,
6. The main cases shall be allotted to the dealing Assistants ordinarily,
"in the lots of twenty five, e.g., first twenty five cases received in the",
"Branch shall be allotted to dealing Assistant No.1, next twenty five",
"to dealing Assistant No.2 and so on, on the basis of State/High Court,",
"wherever applicable, or on the basis of subject category in relation to",
cases arising from Tribunals/Authorities.,
"7. A main case, inclusive of applications, documents, review petitions",
"and curative petitions, except the one to be dealt with by the Filing",
"Counter, allotted to a dealing Assistant shall be dealt with and",
"processed by him till its disposal, irrespective of the stage, i.e.,",
admission hearing or regular hearing stage.,
8. Every miscellaneous application filed by a party or advocate on-,
record shall be placed before an officer not below the rank of Deputy,
Registrar for the purpose of consideration for registration or,
otherwise.,
139,
9. (a) There shall be a diarist in each branch to receive and diarise all,
"receipts, documents and papers in the branch.",
"(b) The receipt and despatch of case files, receipts, documents or",
"any papers within, or from outside, the branch shall be done",
under acknowledgment by the diarist and he shall maintain a,
diary for the purpose of diarising the receipts.,
"(c) Every case file, receipt, document and paper received in the",
"branch shall be first diarised and, along with the Diary Register,",
"be placed before the Branch Officer, who shall suggest action",
"thereon. In respect of important receipts, he shall place them",
before the Assistant Registrar in the first instance or any other,
senior officer and solicit directions thereon.,
(d) It shall be the responsibility of the Branch Officer to ensure that,
each receipt dairised be acknowledged by the concerned dealing,
Assistant by putting his dated initials and action be taken thereon,
without any delay.,
(e) In case any of the dealing Assistant has failed to take timely action,
"on any receipt or Record of Proceedings, the Branch Officer and",
Assistant Registrar shall ensure that action is taken thereon,
forthwith and report the fact to the Officer in-charge for taking,
immediate corrective measures.,
Dealing Assistant,
It shall be the duty of the dealing Assistant --,
"1. to prepare and maintain, either in physical or electronic form--",
(a) Daily Diary/Peshi Register;,
(b) Register of listing of Cases;,
(c) Movement Register; and,
"(d) Register for FDRs, Security and Bank Guarantees.",
"2. to prepare files [Part I and Part II] of the main cases, wherever",
140,
required.,
3. to requisition original records from the Courts appealed from and,
"the Courts below thereto, if the case is to be heard along with the",
records;,
"4. to send timely proposals for listing of main cases, applications and",
office reports on default to the Listing Branch under the orders of,
"the Branch Officer, wherever applicable;",
5. to keep the cases ready for hearing after making compliance with any,
direction given by the Court;,
6. to process interlocutory application within three days and,
miscellaneous application within seven days from the date of,
filing/receipt;,
"7. to take all actions, including service of notice on the parties, bringing",
"legal representatives on record, listing of all applications, sending",
"certified copies to the Court appealed from and Courts below thereto,",
"requisitioning of original records, etc., for making the case ready for",
hearing.,
8. to get the fixed date or cases listed on the date or in the period specified,
"by the Court, even if they are not otherwise ready for hearing, with",
office report;,
9. to prepare and maintain report of service on the parties and,
documents filed in the case.,
10. to send documents for inclusion to the Paper Books branch;,
11. to get the cases certified by the Registrar as ‘Ready’ for regular,
hearing under pre-final hearing under Order V Rule 1(30) of the,
Rules;,
12. to update the regular hearing case as ‘Ready’ in the Terminal List in,
terms of the order of the Court or under Order V Rule 1(30) of the,
141,
Rules;,
"13. to prepare notice, decree, formal order, telegram, schedule of",
costs; to draft and make correspondence with various Authorities,
"and Courts appealed from, Courts below thereto as also parties in",
relation to a main case or application;,
14. to ensure compliance with any special direction given by the Court,
regarding issuance of notice or listing of cases or otherwise and to,
"bring difficulties, if any, in relation to a case to the notice of the",
Branch Officer at the earliest;,
15. to verify and confirm cases for listing shown in the draft list and report,
"error or discrepancy, if any;",
"16. to check and verify cases shown in the advance list, weekly list, daily",
"list and supplementary list and report error or discrepancy, if any;",
17. to arrange and prepare files of disposed of cases for consignment,
to the Record Room and to keep a list thereof;,
18. to ensure that the names of all the advocates on-record and amicus,
curiae in a case as also applications are updated in the computer.,
19. to check notices before initialling them and submitting them for,
signature of the officer concerned;,
20. to examine properly the files of admission and regular hearing cases,
before they are listed before the Court;,
"21. to place before the Court, Report(s), if any, received from an",
Authority in compliance with the order of the Court and keep it in,
"the custody of the Branch Officer and, in his absence, in the custody",
of the Assistant Registrar;,
22. to immediately bring to the notice of the Branch Officer and,
Assistant Registrar about a case received in the Branch relating to,
sentence of death;,
142,
23. to maintain a register of fixed date cases and ensure that no such,
case escapes listing on the due date;,
"24. to maintain a register for Special Bench, Larger Bench and",
Constitution Bench cases.,
"25. A dealing Assistant shall be the custodian of, and responsible for,",
the files of the cases allotted to him. The process shall be undertaken,
by him by operating the password allotted to him. He shall be,
responsible for the safety and security of the files as also for the,
maintenance of the files in a proper manner.,
26. The primary duty to comply with the Court’s order shall lie with the,
dealing Assistant. He shall peruse the order as soon as practicable.,
"In case of any difficulty in understanding the ratio of the order, he",
"shall immediately consult the Branch Officer or Assistant Registrar, as",
"the case may be, and take steps to comply with the order immediately.",
27. Where the Court has directed that the order shall be brought to the,
"notice of the higher Authorities, the dealing Assistant shall forthwith",
"place such matter before such Authority, through the intermediate",
officers.,
28. Whenever any dealing Assistant is transferred from a Branch to,
"another branch on account of promotion or otherwise,",
(a) he shall proceed on transfer only after handing over the charge,
of the seat to the new incumbent in a proper manner and shall,
also inform about the urgent actions to be taken in the files as,
also account for each and every file being dealt with by him;,
(b) a charge report of handing over and taking over shall be,
prepared and counter-signed by the Branch Officer;,
(c) If any urgent action could not be taken by the new incumbent,
on the ground of non-appraisal of the said fact by the outgoing,
"dealing Assistant, both the dealing Assistants shall be held",
responsible for that lapse:,
143,
Provided that due appraisal of urgent action by the outgoing,
dealing Assistant shall not make him liable for the lapse.,
"29. to perform such other duties and work as may, from time to time, be",
assigned by the Branch Officer or senior officers.,
Branch Officer,
It shall be the duty of the Branch Officer --,
1. to supervise overall working of the Branch;,
2. to ensure that all seats in the Branch are manned and work of,
absentees is properly reallocated;,
3. to examine the files thoroughly;,
4. to check and approve formal orders;,
"5. to address communication, and sign letters, to the Courts appealed",
"from, Courts below thereto, Authorities, advocates and parties in-",
person;,
6. to ensure that Jail petitions/appeals and applications are processed by,
the dealing Assistant within the stipulated period;,
7. to ensure that review petitions and curative petitions are processed,
"by the dealing Assistant, expeditiously;",
8. to ensure that notices are issued by the dealing Assistant within three,
"days of the receipt of process, unless otherwise directed by the",
Court;,
9. to examine service reports submitted by the dealing Assistant;,
10. to maintain a register of fixed date cases and ensure that no such case,
escapes listing on the due date;,
11. to note down important directions of the Court;,
"12. to ensure that every case, complete or otherwise, is placed before the",
concerned Court;,
13. to ensure that cases are listed as per the directions of the Court;,
14. to ensure that cases do not remain unattended and required action is,
"taken thereon, including a date before the Court;",
144,
15. to ensure compliance with the orders of the Court;,
16. to go through all the receipts and documents received in the branch,
as also suggest and ensure action thereon;,
"17. to examine the issue of deficient or excess court fee, if any;",
"18. to keep in his custody, Reports, if any, received from any Authority",
in compliance with the order of the Court or otherwise;,
19. to maintain a file containing circulars/directions issued by the senior,
officers and ensure compliance;,
20. to ensure and take orders for registration of the applications within,
the stipulated period;,
"21. to check all Lists, including final cause list, supplementary list,",
"advance list, weekly list and terminal list, and report error, if any, as",
also ensure necessary correction;,
"22. to check, suggest and ensure action on the orders passed by the Court",
on the applications;,
"23. to check, suggest and ensure action on the orders regarding bail,",
release and other interlocutory orders in criminal cases;,
24. to contact immediately the Jail authority in case of death sentence,
"and ascertain date, if any, fixed for execution for the information of",
the Court and indicate the same in the file giving description and,
phone number of the officer contacted;,
"25. to check and approve telegrams to be sent to Jail authorities, State(s)",
"and concerned Courts in criminal cases, including relating to",
sentence of death;,
26. to check and approve office reports of the cases to be placed before,
the Court and Judge in Chambers and sign office reports to be placed,
"before the Court of Registrar, after thoroughly examining the service",
position and status of the case;,
"27. to maintain a register in regard to FDRs, Securities, Bank",
"Guarantees, etc., and shall apprise the Court and senior officers, from",
"time to time, in that regard as also taken action thereon;",
"28. to prepare notice and warrant, if required, in relation to the Rules to",
"Regulate Proceedings for Contempt of the Supreme Court, 1975;",
145,
"29. to liaise with other branches of the Registry, advocates, parties in-",
"person, Courts and Authorities in relation to cases;",
30. to perform duties as may be required in the ICMIS through allotted,
password;,
31. to allot password to an Assistant temporarily in the absence of a,
regular dealing Assistant in extreme exigency of work;,
32. to obtain temporary password from the Computer Cell for an,
attached Assistant during the absence of a regular dealing Assistant,
on account of leave;,
33. to check draft and fair decrees;,
34. to pass orders for consignment in admission hearing cases;,
35. to properly check certified copies of judgments/orders and copies of,
bailable and non-bailable warrants;,
"36. to check endorsements such as, copies of judgments/orders or",
interlocutory orders and documents regarding original records to the,
Courts/Authorities concerned;,
37. to check all registers maintained by the dealing Assistants and,
prepare statistical reports in the branch;,
38. to draft response to the applications under the Right to Information,
"Act, 2005, and submit to the senior officers forthwith;",
"39. to perform such other duties and work as may, from time to time, be",
assigned by the senior officers.,
Court Master,
It shall be the duty of the Court Masters--,
1. to report in Court at 10:00 a.m. sharp and shall arrange the paper,
"books in seriatim. In case any deficiency is noticed, the same shall",
immediately be reported to the concerned Branch Officer or dealing,
"Assistant, as the case may be, and the secretariat of the Judge",
concerned;,
2. to call the cases in the open Court serially and place the paper books,
of the cases listed before the Bench;,
146,
3. to ensure that the case being heard is properly displayed on the Digital,
Display Board;,
4. to maintain a register or list of mentioning cases and forward such,
mentioning memo/listing proforma to Registrar (J-I);,
5. to go through the files of the cases listed before the Bench and shall,
draw broad outline of the issues involved in the case in writing;,
6. to prepare a list of reported cases and judgments/orders on,
similar/identical issues and keep them ready for the perusal of the,
Bench;,
7. to keep the Act(s) concerned in the case ready and shall flag the,
relevant provision(s) thereof for ready reference of the Bench in order,
"to avoid waste of time; to wit, in a tax case, relevant Assessment Year",
shall be noticed and the relevant Act be kept ready with provision(s),
concerned. In case of amendment in any section from retrospective,
"effect, then the Act concerned amending the said section shall be",
made promptly available to the Bench;,
"In criminal cases, the sentence and conviction shall be seen; whether",
"the accused is in jail or on bail; if confined, details of the jail; and",
"whether the case has been filed against an interim order, final order,",
"order rejecting/cancelling bail, etc.;",
8. to make available at the time of hearing all the books cited by the,
advocates;,
9. to receive and return to the concerned branches files of the cases listed,
for hearing before the Bench;,
10. to be ready with the dates and page numbers of the different orders of,
the lower authorities in the paper books;,
"11. to bring to the notice of the Bench immediately, as and when desired,",
the service position and other documents received and placed in the,
"files, i.e., settlement in a marital case by the Legal Services",
Authority/Committee or mediation centre or any other report;,
"12. to bring to the notice of the Bench, at the time of issue of notice or",
"disposal of a main case, the applications for directions, substitution,",
"impleadment, intervention, condonation of delay in filing cases and",
other applications for appropriate orders;,
147,
13. to requisition the files relating to identical/similar issue or cases filed,
against the common/relied upon impugned order in which an order,
has already been made and place them before the Bench at the time of,
"hearing of a case, as and when required;",
14. to note down the direction/order of the Bench in relation to a case and,
update the result in the computer immediately. The cause list would be,
prepared by the Listing branch taking into account also the said,
updation in accordance with the direction of the Bench;,
15. to send the paper books of CAV matters to the residential offices of,
"the Judges and ensure that reference books, if any, required by the",
Judges shall also be sent along with CAV matters;,
16. to maintain a list of CAV matters of the Bench and update the Listing,
branch and secretariat of the Bench;,
17. to keep themselves aware of the important judgments/orders of the,
"Court and make them available to the Bench, if required;",
"18. to provide such information/clarification, as may be required by the",
officials/officers in relation to processing of a case;,
19. to sign the Record of Proceedings and the Court Master (Shorthand),
"shall diligently incorporate the corrections, if any, made in the draft",
"Record of Proceedings/orders by the Judge, which shall be cross-",
checked by the Court Master (Non-Shorthand) and ensure that orders,
are sent to all concerned branches and uploaded on the server,
promptly;,
"20. to work diligently so that no orders, duly approved and signed, and",
Record of Proceedings of the Court shall remain unattended or,
pending;,
21. to be well-versed with the Rules as also practice and procedure and,
"update themselves with latest amendments and extant Rules, which",
"shall be brought to the notice of the Bench, as and when required;",
"22. to receive, and despatch, original records under acknowledgment from",
the concerned Branch. Original records shall be kept ready and be,
"made available for the perusal of the Bench immediately, as and when",
required. The important documents in the records shall be flagged for,
"ready reference of the Court; to wit, in a criminal case, F.I.R., charge-",
148,
"sheet, statements, etc., as also the judgments of the Trial Court and the",
High Court;,
23. to maintain a diary of the cases where future dates have been given by,
the Bench;,
24. to promptly inform the Registrar (J-I) about any specific direction,
given by the Bench concerning any action to be taken by the Registry;,
"25. to ensure that the paper books of all the cases, which have been",
"directed to be listed in the same week or next week, are sent",
"separately to paper books godown expeditiously, preferably on the",
same day but not later than next day. He shall be responsible for the,
paper books of the cases listed before the Bench and shall send them,
"to the paper books godown promptly, under acknowledgment;",
26. to send paper books of part-heard cases or those required by the,
Judges directly to the residential offices under written intimation to,
the Assistant Registrar (Paper Books godown);,
"27. to take directions of the Bench in relation to F.D.Rs., Securities, Bank",
Guarantees or disbursement of the amount deposited in the Court at,
the time of disposal of the case or whenever occasion arises;,
28. to forthwith inform the Registrar (J-I) and the Registrar concerned as,
"also police personnel on duty, either inside or outside Court, about the",
"order of the Bench to take a party or contemnor, present in-person in",
"Court into custody, who has been sentenced to imprisonment under",
the Rules to Regulate Proceedings for Contempt of the Supreme,
"Court, 1975;",
"29. to give preference to orders as regards release, bail, suspension of",
sentence and parole and transmit them to concerned branch,
expeditiously;,
"30. to send orders relating to a main case, in a closed cover, at the",
residential offices of the Judges for signatures;,
"31. to immediately transmit on the server the Record of Proceedings,",
"judgments and orders, upon issuance, after digitally signing the",
"electronic record of such judgments and orders, and report compliance",
to the officer in-charge on the same day;,
149,
"32. to send files, paper books, documents or orders to the R&I branch by",
"5.30 p.m., as far as possible, which are required to be sent to the",
"residential offices of the Judges, and for despatch beyond that time,",
advance intimation be given to the branch telephonically so that such,
documents can be sent by a special messenger;,
"33. to carry out such other work, as may be assigned to them by the",
Bench or senior officers.,
Assistant Registrar,
It shall be the duty of the Assistant Registrar --,
"1. to approve wireless messages; sign notices, except contempt notices;",
and certify documents;,
2. to note down the cases listed in the Court;,
3. to read Record of Proceedings and judgments/orders carefully placed,
before him and ensure compliance;,
4. to examine urgent filing/documents received from the Filing Counter,
and ensure proper action;,
"5. to examine the issue of court fee, if any;",
"6. to examine the issue of, and extract, question of law;",
7. to ensure timely listing of cases;,
"8. to submit proposal, in detail, in applications to the Deputy",
Registrar/Additional Registrar;,
9. to ensure timely transfer of files to the Decree branch for preparation,
of decree after certifying that no action is pending in the file;,
10. to thoroughly examine the service position and status of the case,
before signing Office Reports to be placed before the Judge in,
Chambers and Court;,
11. to ensure that documents mentioned in the office reports have been,
included or circulated for inclusion in the paper books;,
12. to ensure fair and equitable distribution of work;,
"13. to prepare statements/details of cases, received and disposed of,",
relating to the Branch;,
150,
14. to check pendency of receipts once in a week;,
15. to ensure return of original records immediately in case of orders of,
"remand to the Court(s) below as also in disposed of cases, if",
requisitioned;,
16. to pass registration orders in interlocutory applications;,
"17. to maintain a register for F.D.Rs., Bank Guarantees, Securities, etc.,",
and ensure action thereon;,
18. to pass orders for consignment of files in regular hearing cases;,
19. to thoroughly examine and inspect the files of the branch of,
incomplete/not ready cases once in a month and submit the report to,
"the Deputy Registrar/Additional Registrar regarding delay in action, if",
"any, and pendency of various applications lying in the branch as also",
report about the general functioning of the branch;,
20. to ensure that no work of urgent nature is pending with subordinate,
officer and officials before they leave the office;,
21. to check all the cause lists and bring to the notice of the Listing,
"Branch, error or discrepancy, if any, and ensure its correction;",
22. to check ‘After Notice’ cases as to whether proper action has been,
"taken in conformity with the Rules, practice and procedure and other",
"directions. In case proper action has not been taken, he shall give",
necessary guidance accordingly;,
23. to guide the subordinate staff in day-to-day work;,
24. to attend to the work of the Branch Officer in his absence; and,
25. to perform such other duties as may be assigned to him by the senior,
officers.,
Deputy Registrar,
It shall be the duty of the Deputy Registrar --,
1. to sign formal orders where the lis has attained finality; summons for,
"non-prosecution; wireless messages, contempt notices, decrees in civil",
cases and transferred cases;,
2. to pass orders for registration of the miscellaneous applications;,
151,
3. to give guidance to the staff;,
4. to check pendency of receipt at least once in a week;,
5. to check and suggest actions in ‘Not Ready’ cases in order to make,
them ready;,
6. to pass orders in case of difference of opinion between the Branch,
"Officer and Assistant Registrar; and if the matter is complicated, he",
"may refer to, and seek guidance from the Additional Registrar,",
"wherever applicable, or the Registrar, as the case may be;",
7. to ensure smooth functioning of the branch and to effect fair and,
equitable distribution of work;,
"8. to examine the report, if any, regarding delay in action submitted by",
the Assistant Registrar and place the same before the Additional,
"Registrar, wherever applicable, or the Registrar, as the case may be,",
with suggestions;,
9. to inspect the branch once in three months and submit a report to the,
Registrar regarding pendency in the branch of ‘Not Ready’ cases and,
general functioning of the branch;,
"10. to randomly check the status vis-a-vis uploading of office reports, at",
least twice a week;,
11. to act as the Assistant Public Information Officer under the Right to,
"Information Act, 2005;",
12. to attend to the urgent nature of work in the absence of Assistant,
"Registrar, including signing of office reports; and",
13. to get the work done from other officers under his control and perform,
such other duties as may be assigned to him by the senior officers.,
Additional Registrar,
It shall be the duty of the Additional Registrar--,
"1. to take policy decisions with regard to cases pending, with the",
approval of the Registrar;,
"2. to decide any question referred by the Deputy Registrar, wherever",
applicable;,
152,
3. to issue circulars periodically for the purpose of giving proper,
"directions for smooth functioning of the branches under his control,",
with the approval of Registrar;,
4. to ensure speedy action by the branch in Court’s orders of urgent,
nature;,
5. to inspect the branch periodically for the purpose of checking the,
pendency;,
6. to examine the files of ‘Not Ready’ cases and give directions and,
guidance for making them ready;,
7. to attend to the problems faced by the branch;,
"8. to give proposals for amendment of the Rules, wherever necessary;",
9. to ensure prompt action in cases and get the work done in time;,
10. to keep a tab on the pendency of cases and give appropriate directions;,
"11. to randomly check the status vis-a-vis uploading of office reports, at",
least twice a week;,
12. to attend to the queries of the advocates and solve the problems to the,
maximum extent within the ambit of the Rules;,
13. to extract maximum work from the officers/staff working under his,
control;,
14. to act as the Assistant Public Information Officer under the Right to,
"Information Act, 2005;",
15. to attend to the work in the absence of Deputy Registrar under his,
"control, wherever applicable; and",
16. to perform such other duties as may be assigned by senior officers,
from time to time.,
Note,
The afore-stated duties of the dealing Assistant upto the rank of Additional,
"Registrar, as stated in this Chapter, are only illustrative in nature and they",
may perform such other duties as may be assigned to them for the smooth,
and efficient functioning of the Court and the branch.,
153,
Listing of Cases,
"1. Separate registers for civil and criminal cases, to be heard by the",
"Benches, shall be maintained, either in physical or electronic form,",
to show when they are complete in all respects and ready for,
hearing.,
2. Where the Court has directed listing of a case on a particular date or,
"during a particular period, the dealing Assistant shall make a note in",
that regard in the register and prepare the proposal for listing,
accordingly.,
3. The proposal for listing of an admission hearing or regular hearing,
case shall be submitted by the dealing Assistant after approval of the,
"Branch Officer or the Assistant Registrar, as the case may be,",
"sufficiently in advance of the proposed date of listing, excepting the",
case taken from the terminal list.,
"4. The Registrar (J-I) shall take into account the proposals,",
keeping in view the fresh cases to be listed on the admission,
hearing day and the cases to be listed on a regular hearing day,
while preparing the cause lists. He shall also ensure that the cases,
are listed in accordance with the roster and instructions issued by,
the Chief Justice from time to time.,
Applications,
1. On receipt of an interlocutory application or miscellaneous,
"application or any document, the diarist shall hand over the same,",
"under acknowledgment, to the concerned dealing Assistant, who",
shall place the same on the record of the main case in which it has,
"been filed on the same day, if possible, but, in no case later than",
the following working day.,
"2. Every interlocutory application or miscellaneous application,",
besides bearing a centralized annual serial number against which it,
154,
"is registered in the register of petitions in the computer, shall also",
bear a serial number in the chronological order of its presentation,
in the proceeding.,
Peremptory Order,
"1. Where a peremptory order has been made, the dealing Assistant shall",
make a note in the diary register and call for compliance report from,
the concerned official immediately after the expiry of the period,
stipulated in the order.,
"2. If the peremptory order has not been complied with, on the basis of the",
"report of the concerned official, the dealing Assistant shall submit the",
"factum of non-compliance to the Assistant Registrar, and, under",
"approval, the consequence shall ensue and the case shall be updated",
accordingly in the computer within a week of the expiry of the,
stipulated period.,
Explanation: Part compliance of a peremptory order shall be,
deemed to be non-compliance thereof.,
3. A copy of the peremptory order shall be forwarded to the Court,
appealed from within a week of such order.,
Expeditious Communication of Bail Orders and Release Orders,
1. The officer in-charge of the criminal branch shall keep a directory of,
"the Prison officials in India, published by the Bureau of Police",
"Research and Development, Ministry of Home Affairs, New Delhi.",
"2. In case of release or bail order, excepting subject to the satisfaction of",
"the Trial Court or any other Authority, a wireless message shall be",
"sent forthwith to the concerned Jail authority, Registrar of the High",
"Court and Trial Court along a certified copy of the judgment or order,",
"as the case may be, by fax, wherever possible, or electronic mode and",
speed post.,
155,
"3. Where an order directing stay of sentence of death has been made, an",
"intimation thereof shall be immediately sent by speed post, telegram,",
"fax, wherever applicable, or electronic mode, to the concerned State,",
Courts and Jail authority.,
Provided that in case of a petition or appeal involving,
"sentence of death, the filing of such petition or appeal shall be",
intimated in the same manner and the jailor shall be immediately,
"contacted to ascertain the date, if any, fixed for execution of the",
sentence and the information shall be immediately placed before the,
Court by way of office report.,
4. The Registrar of the concerned High Court shall also be requested to,
communicate the order to the Trial Court as well as Jail authority as,
expeditiously as possible.,
5. The Officer in-charge (Courts) shall ensure that the Record of,
"Proceedings, judgments or orders of the Court are immediately sent to",
the concerned Branch after pronouncement.,
Inclusion of Documents in the Paper Books,
"1. (a) The dealing Assistant shall, from time to time, expeditiously",
"include documents, such as Record of Proceedings,",
"judgments/orders, affidavits in opposition, rejoinder affidavits,",
office reports and other documents in the paper books of the case.,
"(b) No documents, other than the part of the record, shall be included",
in the paper books.,
2. The documents shall be sent for inclusion in the paper books in,
"accordance with the Schedule mentioned in Chapter XIX, unless",
otherwise required.,
3. In case the dealing Assistant is unable to send the documents for,
"circulation as per clause 8 of Chapter XVIII, he shall circulate the",
same in a closed envelope through R&I branch.,
4. It shall be the duty of the dealing Assistant to keep the paper books,
"updated with Record of Proceedings, orders and other documents.",
156,
Decree and Formal Order,
1. The decree shall be prepared within one week from the date of the,
judgment and order.,
2. The files shall be sent to the Decree branch within two days from the,
date of judgment/order or from the date of receipt of files from the,
Court Master.,
3. The draft shall be vetted and forwarded to the Additional,
Registrar/Deputy Registrar by the Branch Officer for approval and,
signature.,
4. After the decree is signed by the Additional Registrar/Deputy,
"Registrar, the file shall be sent back to the concerned Judicial",
branch.,
5. The dealing Assistant shall prepare formal order in criminal cases,
"forthwith where the lis has been finally adjudicated by the Court,",
which shall be approved and signed by the Additional,
Registrar/Deputy Registrar with promptitude.,
6. The dealing Assistant shall expeditiously cause to transmit the,
"original records, if received, to the respective Courts below, except",
"in case of remand where the records shall be transmitted forthwith,",
"along with a certified copy of the decree or formal order, as the case",
"may be, wherever required, to such Courts.",
Linked and Connected Cases,
"1. Cases arising from the same judgment/order/notification/F.I.R., etc.,",
shall be referred as the ‘linked cases’ and cases involving similar,
"points of law and/or fact, though arising from different",
"judgment/order/notification/F.I.R., etc., shall be referred as the",
‘connected cases’.,
2. It shall also be the responsibility of the Branch Officer and dealing,
Assistant to keep track of the linked and connected cases for being,
listed together for analogous hearing. All such cases shall be clubbed,
"together High Court/State-wise and allotted to an Assistant, dealing",
157,
with the oldest or main case in the bunch intra-branch.,
"3. No case shall be treated as connected case, unless specifically ordered",
"by the Court. In case the connected cases, owing to the roster, are",
"required to be listed before different Benches, the Registrar (J-I) shall",
place them before the Chief Justice for orders as to the Bench before,
which such cases may be listed for analogous hearing.,
Translation,
"Under Order VIII Rule 2 of the Rules, no documents in language other than",
English shall be used for the purpose of any proceedings before the Court.,
"The documents in languages, other than English, are required to be",
translated into English.,
"(a) Where a party has to incur the expenses for translation, the Branch",
Officer of the concerned Judicial branch shall mark the documents to,
"be translated and, after taking the approval of the Additional Registrar",
"or Deputy Registrar, as the case may be, send the file to the Branch",
"Officer, Translation Cell.",
"(b) The Branch Officer, after calculating the estimated cost of translation",
and obtaining the approval of the Additional Registrar or Deputy,
"Registrar, shall return the file to the Judicial branch so that the",
estimated amount can be deposited by the party concerned.,
"(c) Upon deposit of the estimated amount, the file shall be returned to the",
Translation Cell for translation.,
(d) The Branch Officer shall obtain the approval of the name of the,
translator from the Additional Registrar or Deputy Registrar. A,
register containing the names of translators of different languages,
shall be maintained and work shall be allocated chronologically.,
"(e) After the translation and receipt of the bill from the translator, the",
Branch Officer shall send the file along with the bill to the Registrar/,
"Head of Office, through concerned Registrar, for according financial",
sanction and for payment.,
158,
"(f) After such orders, the file shall be returned to the Branch Officer of",
the concerned Judicial branch.,
Urgent actions should not be held up for want of file from the,
Translation Cell.,
"(g) Since the aspect of cost is not involved in jail petitions, the translation",
of documents shall be done expeditiously.,
(h) A panel of translators is maintained by the Registry for translating,
documents from Hindi/vernacular language to English on payment of,
prescribed charges. The charges payable are as under:,
S. Description Approved rates per,
No. page (200 words),
1. Translation charges for the first 10 pages Rs. 50/- per page,
2. Translation charges for the next 10 pages Rs. 40/- per page,
3. Translation charges for the next 30 pages Rs. 35/- per page,
4. Translation charges for the next 50 pages Rs. 30/- per page,
5. Translation charges for the next 100 Rs. 25/- per page,
pages,
6. Minimum charges upto five pages Rs. 250/-,
7. Approval of translation Rs. 15/- per page,
8. Typing charges Rs.12.00 per page,
for each additional,
copy @ Re.1.20 p.,
per page.,
Consignment to the Record Room,
"1.(a) If no steps, after verification, are required to be taken on the file, such",
"as relating to Security, Bank Guarantee, FDR, Report, if any, received",
"in a sealed cover or the like, the file shall be consigned to the Record",
Room after properly indexing the file within fifteen days from the date,
of disposal of the case.,
(b) An entry of the result of the case and consequent consignment of the,
159,
file to the Record Room shall be made in the relevant register.,
"(c) Where a future date has been given for compliance of the order, such",
"as, vacation of premises in a landlord-tenant case or the like, such",
"cases shall also be consigned, subject to the note that the same shall",
"not be weeded out till the period for preservation, which shall be",
reckoned from that future date.,
"2.(a) Any file consigned to the Record Room may be requisitioned, in",
"writing, under acknowledgment, by an officer not below the rank of",
"Branch Officer in admission hearing cases, and not below the rank of",
"Assistant Registrar in regular hearing cases, indicating the purpose,",
"except in case of requisition by the Court, which shall be made by the",
Court Master indicating the Item number in which such file is,
required.,
"(b) In case of urgent requirement during the course of hearing of any case,",
the Court Master shall inform the concerned Branch Officer on,
"telephone, followed by a proper requisition. Such file shall be sent to",
the Court immediately.,
(c) Any file requisitioned by the Branch Officer or Assistant Registrar,
"shall be transmitted on the same day, if possible, but in no case later",
than the following working day.,
(d) The requisitioned files shall be returned to the Record Room at the,
earliest when no longer required.,
3.(a) In cases where acknowledgments of letters forwarding certified copies,
of judgments/orders or transmitting original records or Registered,
A.D. cards or similar such documents are received in the Judicial,
"Branches, pursuant to the consignment of the case files to the Record",
"Room, such documents shall be included in the concerned files in the",
Record Room and the files in relation thereto shall not be sent to the,
Judicial branch for this purpose.,
"(b) The Judicial branch shall send such documents to the Record Room,",
under acknowledgment.,
160,
4. A register shall be maintained in the Record Room for the purpose of,
requisition/transmission of files.,
5. The requisitions shall not be destroyed for a period of one year.,
General,
"1. Consequent upon service of notice or otherwise, if a respondent",
transmits documents by post for being considered by the Court at the,
"time of hearing and state that he will be unable to appear in-person,",
such documents shall be placed before the Court.,
"2.(a) In case of expedited, short or specially directed cases, the forwarding",
letter shall indicate that the case has been expedited and the original,
"records, if requisitioned, shall be transmitted as also the certificate of",
service within one month of the receipt of the letter.,
"(b) In case the original records and certificate of service are not received,",
the Registrar of the Court appealed from be requested to transmit,
them expeditiously.,
"(c) In cases other than (a) above, if the notice of lodgment of petition of",
appeal sent to the Court appealed from is not received back either,
"served or unserved within sixty days from the date of issue, the",
Registrar of the Court appealed from shall be requested to expedite,
the process.,
(d) Such cases shall be made ready within a period of six months from the,
date of the order.,
(e) While endorsing notice to the appellant in-person or the advocate on-,
"record for the appellant, an option shall be given to him to effect",
service by Registered Post directly upon the respondent by submitting,
additional copies of the paper books.,
3. If any process is received back unserved for want of complete/correct,
"address or it is reported that the addressee is avoiding service, the",
party in-person or the advocate on-record for the,
161,
petitioner/appellant/applicant shall be requested to take necessary,
steps to effect service on the unserved respondent(s).,
"4. Wherever notice has been issued to the Attorney General for India, in",
"such cases, the words ‘Attorney General for India’ shall be shown in",
the cause list along with the names of the advocates on-record.,
5. In cases where any law officer or any other advocate or senior,
"advocate has been appointed as an amicus curiae, the name of such",
law officer or advocate or senior advocate shall be shown in the cause,
list.,
"6. In a case where notice has been issued to a party in-person, it shall be",
"effected on the said party only and none else, regardless of the fact",
"that the said party is an advocate. In the office report, it shall be",
mentioned that the notice has been served on the party concerned,
personally.,
"7. Whenever notice to show cause is issued to the respondent(s), the",
notice shall indicate a note mentioning the availability of the Supreme,
Court Legal Services Committee and Middle Income Group Legal Aid,
"Society in the Supreme Court, wherever required.",
8. The cases which have been adjourned for a particular period/month,
"shall be listed before the Court, irrespective of the fact whether",
affidavit in opposition or rejoinder or any document has been filed or,
not.,
"9. The contempt petition, on a returnable date, shall be listed before the",
"Court, even if service is incomplete or affidavit in opposition has not",
been filed.,
"10. In case where intervention is allowed by the Court, the intervenor(s)",
shall be entitled to receive documents produced and relied upon by the,
"petitioner(s), unless otherwise directed by the Court, and no",
"application shall be received or entertained, unless service thereof is",
effected on the intervenor(s).,
162,
11. (a) Office reports shall be cohesive and comprehensive with latest,
service position indicating the details of mode of service as also,
other details and shall specifically indicate in the concluding,
paragraph the orders sought from the Court.,
(b) The documents enclosed with the office reports shall be duly,
tagged.,
"(c) Whenever a reference is made to any annexure(s), page",
number(s) given to the annexure(s) in the paper book shall be,
mentioned in the office report against the annexure(s).,
(d) Whenever reference is made in the office report about the,
"pendency of another case in the Court, details, in brief,",
regarding position and exact status of that pending case shall be,
mentioned in the office report.,
"(e) In a review petition, if the original paper books are not",
available and have been weeded out after due preservation,
"under the Rules, it shall be indicated in the office report for the",
perusal of the Court.,
12. Where notice has been served on the respondent(s) but no appearance,
"has been filed, such case shall be treated as complete and be updated",
and listed before the Court.,
"13. If a case has been tagged with a case relating to another branch, a",
copy of the Record of Proceedings shall immediately be sent to that,
another branch for necessary action thereon.,
"14. In transferred cases, original records need not be returned. They shall",
be re-numbered and treated as original file.,
15. The Decree branch shall also check whether any action is required to,
"be taken in terms of the orders of the Court and, in such a case, the file",
may be sent back to the Judicial branch.,
163,
16. The officers and officials shall take extra care and caution in regard to,
handling of files and keep strict vigil on the movements thereof. They,
shall ensure that files and records sent to the Courts and other places,
are retrieved back in time and sent to the custodian. The Class III non-,
ministerial staff deputed for transmission of files must be given strict,
instructions to perform their duties effectively and not to leave the,
files unguarded at any unauthorized place.,
17. The advocates on-record and parties may contact the Assistant,
Registrar concerned during the working hours in relation to a case and,
"shall not visit the branch, except with the prior permission of the",
concerned Assistant Registrar.,
18. In cases involving death sentence and where the appellant or the,
"respondent is in jail and is not represented by an advocate on-record,",
the records shall be prepared and filed by the State.,
19. (a) Affidavits in opposition shall be filed five days prior to the,
actual date of hearing.,
(b) Rejoinder affidavits shall be filed before two days before the,
actual date of hearing.,
"(c) Other documents, including letters for adjournments, be filed",
within two days prior to the actual date of hearing.,
(d) No departure from clauses (a) to (c) above shall take place save,
with the permission of the Court.,
20. An application for cancellation of date(s) shall be processed on the,
same day of the receipt in the Judicial branch.,
21. The applications or documents shall be scrutinized carefully and all,
the defects shall be notified in the first instance. Irrelevant defects,
shall not be notified.,
"22. In no case, the file of a case shall be given to any advocate or a party.",
164,
CHAPTER XVII,
"PROCESS, WARRANTS AND SERVICE OF DOCUMENTS",
1. Except where otherwise provided by any statute or prescribed by the,
"Rules, all notices, orders or other documents required to be given to or",
served on any person shall be served by the Registry in the manner,
provided by the Code for service of a summons.,
2.(a) In order to avoid delay in the service of the notice on the Union of,
"India or any State Government or any of its Authorities, the",
petitioner/appellant shall specify the proper department and address,
"of the Union of India or the State Government or its Authorities, as",
"the case may be, on whom the notice is required to be served.",
(b) The service of notice on the Standing counsel/advocate for the,
Union Government or the State Government/In-charge of the,
Central Agency Section/Special Officer/Resident Commissioner,
appointed by the State Government or any of the authorities in Delhi,
shall be treated as sufficient service on the concerned Government,
or any of its department.,
"3. Service of any notice, order or other document on the advocate on-",
record of any party at his address registered with office or registered,
eMail address or by leaving it with a clerk in his employ at his office or,
by sending it at his registered eMail address shall be deemed service on,
the party on whom he represents.,
"4. While issuing notice/communication through registered post/speed post,",
"Bar Coding Slips, in triplicate, containing a unique number shall be used",
in the following manner:,
(i) First copy of the Bar Coding Slip shall be affixed on the,
Registered A.D. and Registered parcel;,
(ii) Second copy of the Bar Coding Slip shall be affixed on the office,
copy of the notice issued by the concerned branch; and,
(iii) Third copy of the Bar Coding Slip shall be retained by the R&I,
branch for its record.,
165,
5. The unique number in the Bar Coding Slip shall be used to ascertain the,
exact status as to the delivery thereof through internet and print out,
thereof can be downloaded from the internet.,
6. The branch shall take out the print of the track report as to the delivery,
status of the notice/communication and enclose it with the office report,
in a case to be placed before the concerned Court.,
7. Where a notice has been issued by Registered A.D./Registered parcel,
and has been properly addressed but neither the unserved envelope,
containing the notice nor the acknowledgment has been received back,
"for a period of thirty days from the date of issue of notice, it shall be",
presumed that notice has been duly served.,
8. Refusal by a party or his advocate on-record or his registered clerk to,
accept notice shall be treated as deemed service.,
"9. Service of any notice, order or other document upon a party residing",
at a place within the territory of India may ordinarily be effected by,
registered post/registered parcel/speed post at his address or,
personally at the place where he ordinarily resides or his agent,
"empowered to accept service, or by eMail or fax or approved courier",
"service, if any, or through the District Judge concerned.",
10. The Registrar may in a particular case or class of cases permit that the,
service shall be effected in the manner provided by the Code for the,
service of summons.,
"11. (a) Where dasti service, i.e., service through party has been",
"directed, the party shall, unless permitted otherwise, within",
"fifteen days of issue of dasti, tender the dasti notice to",
addressee in-person and obtain acknowledgment from him. In,
case the addressee declines to receive or acknowledge the,
"service of notice, the party shall move the principal civil court,",
"other than the High Court, within local limits of whom",
addressee resides or carries on business or personally works for,
"gain, for service through special bailiff.",
(b) The concerned court shall direct expeditious service of notice,
166,
through special bailiff and cause a report of service to be sent to,
"the Registrar of this Court by Registered A.D./speed post,",
charges wherefor shall be paid by the party and forward a copy,
"of the said report through the party, for being submitted to this",
Court.,
"(c) Where service is to be effected by the party, he shall file an",
affidavit of service along with proof thereof stating the manner,
in which the service has been effected.,
"(d) Where service has been effected through another Court, it may",
be proved by the deposition or affidavit of the serving officer,
made before the Court through which the service was effected.,
(e) Where the opposite party or his agent or other person on his,
"behalf refuses to sign the acknowledgment, or where the",
"serving officer, after using all due and reasonable diligence,",
cannot find the opposite party at his residence and in case the,
"notice cannot be served in the ordinary manner, the notice shall",
be served by affixing a copy thereof in some conspicuous place,
in the Court-house and also upon some conspicuous part of the,
"house, if any, in which the respondent is known to have last",
"resided or carried on business or personally worked for gain, or",
"in such other manner, as the Court thinks fit.",
12. In case where notice has been directed to be served through the,
District Judge –,
(a) the petitioner shall furnish complete address of the District,
"Judge within seven days; in default, the case shall be listed with",
office report on default.,
"(b) In case particulars have been given, notice shall be sent to the",
District Judge along with the covering letter in ‘Form A’,
conveying the order that service of such notice is to be effected,
through the concerned District Judge.,
"(c) In case of dasti notice [by hand], the notice along with covering",
letter in ‘Form B’ shall be handed over to the petitioner so that,
167,
it may be delivered to the concerned District Judge.,
The operative portion of the Forms read as under:,
Form ‘A’,
"Whereas in the aforementioned petition, it has been ordered",
"that the notice be served upon the Respondent No(s)…….,",
"through the District Judge concerned. Therefore, notice(s), in",
"duplicate, is/are being sent to you for effecting service upon the",
Respondent No(s)………..,
You are requested to kindly get the notice(s) served in,
accordance with law and submit the service report to this Court,
without delay.,
"Yours faithfully,",
Assistant Registrar,
Form ‘B’,
"Whereas in the aforementioned petition/appeal, it has been",
ordered that the notice(s) be served upon the Respondent No(s),
……… through the District Judge concerned and the petitioner,
"has been permitted to take out the notice(s) in ‘Dasti’ (i.e., by",
hand).,
You are requested to kindly get the notice(s) served in,
accordance with law and submit the service report to this Court,
without delay.,
If Rules require payment of any additional fee (like special,
"bailiff charges and petitioner seeks special bailiff), you may get",
the fee deposited in advance.,
"Yours faithfully,",
Assistant Registrar,
168,
13. Where service of notice is to be effected by substituted service through,
"publication in the newspapers, the newspapers shall be daily",
"newspapers, in English and in vernacular language of the place, having",
wide circulation in the locality in which the respondent is last known to,
"have actually and voluntarily resided, carried on business or personally",
worked for gain.,
"14. Where the opposite party is confined in jail, the notice shall be",
delivered to the officer in-charge of the jail for service on the said,
party.,
15. Service of notice on the respondent/non-applicant/opposite party or,
where a party residing out of India has no agent or Political Agent or,
Court shall be served in terms of Order V of the Code.,
"16. In terms of Circular No. F.No. 12(77)/10-Judl. dated 18th August, 2011,",
"issued by Ministry of L&J, Department of Legal Affairs (Judl.",
"Section), the Department of Legal Affairs shall be the Central",
Authority for service of notices/summons of judicial and extra-judicial,
documents under the Hague Convention of 1965/Mutual Legal,
Assistance Treaties/Reciprocal arrangements with foreign countries in,
civil and commercial matters. The circular reads as under:,
F.No. 12(77)/10-Judl.,
Ministry of Law and Justice,
Department of Legal Affairs,
(Judicial Section),
"Shastri Bhawan, New Delhi",
Dated 18.8.2011,
Office Memorandum,
Sub: Service Abroad of Judicial and Extra-judicial Documents,
under the Hague Convention of 1965/Mutual Legal,
Assistance Treaties/Reciprocal arrangements with foreign,
countries in civil and commercial Matters--regarding.,
169,
The undersigned is directed to refer to the subject cited,
above and to state that this Department is the Central,
Authority for service of summons/notices in foreign,
countries under the provisions of the above Agreements.,
It has been observed by this Department that a large,
number of documents received from the various courts are,
incomplete in one respect or the other and it gets quite,
difficult to process those documents to the foreign countries,
for service.,
It is therefore requested to all Registrar Generals of,
Supreme Court/High Courts to circulate the following,
information to the courts within their jurisdiction with the,
directions to ensure the particulars of documents before,
sending the same to this Department:-,
S. Particulars of information,
No.,
1. Summons/Notices in duplicate shall be issued,
providing 3 months time in advance to this,
Department for effecting the service in foreign,
countries.,
2. Full address of the party and translation of the,
documents in the official language of requesting,
country wherever necessary.,
"3. The Central Authority, USA has authorized to receive",
the summons/notices under Hague Convention of,
"1965 to an agency, Process Forward International.",
The Notice/summons for USA may therefore be sent,
directly by the Courts to Process Forwarding,
"International, 633 Yesler Way, Seattle, WA 98104,",
USA along with the required fee etc. (details available,
at www.hcch.net).,
4. Ministry of Home Affairs is the nodal ministry and,
Central Authority for seeking and providing the,
170,
mutual legal assistance in criminal law matters.,
Ministry of Home Affairs receives all kind of such,
"requests, examines and takes appropriate action (as",
per circular no. T4410/14/2006 dated 30.04.2010 of,
Ministry of External Affairs).,
5. The Central Authorities in Canada are charging a cost,
of $50.00 Canadian for the process of service under,
the Hague Convention of Service Abroad of Judicial,
"and Extra-judicial Matters, 1965. The payment",
accompanying the documents to be served must be in,
"the form of a traveller’s cheque or a cheque, in the",
amount of Can $50 per request. The travellers cheque,
or cheque must be drawn on a Canadian Bank. The,
details may be seen at www.hcch.net.,
6. Consulate General of India in Sydney has informed,
that the Sheriff’s Office of NSW levies a fee of AUD,
54 for serving summons through their office. The fee,
could be remitted in favour of the Consulate General,
"of India, Sydney and the details of the ‘Head of",
Account’ under which such payment has to be debited,
be provided for making necessary action. (details,
available at www.hcch.net).,
7. This Department process the service of,
summons/notices in civil and commercial matters,
issued by an Indian court for service on a person,
residing in a foreign country with which there is any,
reciprocal arrangement. The list of member,
State/non-member State may be seen at,
www.hcch.net,
171,
F.No. 12(20)/2013-Judl.,
FTS No.2144/R&I/2013,
No. 12(80)/2013-Judl.,
Department of Legal Affairs,
Judicial Section,
The Notice/Summon received for processing under the,
provision of ‘The Hague Convention in Civil and Commercial,
Matters’ are returned herewith for the reasons as mentioned below:,
Sl. Particulars of information,
No.,
"1. As per the experience, various foreign authorities are",
not entertaining our request for legal assistance in such,
matters if the date of appearance of,
respondents/hearing of case are less than three months.,
Due to large no. of such requests being received from,
"various courts in India/foreign authorities, this",
Department also needs one-two month time in,
processing the requests in this department as well as,
the time taken by postal department.,
Kindly issue a fresh notice/summon providing 4-5,
months time in advance for effecting the service in,
foreign countries.,
2. Summons/Notices in original are not in duplicate.,
Notice/summon in original along with the copy of,
petition may be provided in duplicate.,
3. Full address of the party and translation of the,
documents in the official language of requesting,
"country wherever necessary (viz. in the case of China,",
Arabic Countries etc.),
"4. The Central Authority, USA has authorized to receive",
the summons/notices under Hague Convention of 1965,
172,
"to an agency, Processing Forward International, 633",
"Yesler Way, Seattle, WA 98104, USA. The",
Notice/summons for service in USA may therefore be,
sent directly by the Courts to Process Forwarding,
International along with the required fee etc. (details,
available at www.hcch.net ).,
5. Ministry of Home Affairs is the nodal ministry and,
Central Authority for seeking and providing the legal,
assistance in criminal law matters. Ministry of Home,
"Affairs receives all kind of such requests, examines and",
takes appropriate action (as per circular no. T,
4410/14/2006 dated 30.04.2010 of Ministry of External,
"Affairs). Please send the documents to Legal Cell,",
"Internal Security-II Dvsn., MHA, Hall-B, floor,",
"NDCC-II Building, Jai Singh Road, New Delhi-",
"110001. PH-23438115/8184/8083 FAX-8045, Email-",
us-legal@mha.gov.in.,
6. The Central Authorities in Canada are charging a cost,
of $50.00 Canadian for the process of service under the,
Hague Convention of Service Abroad of Judicial and,
"Extra-Judicial Matters, 1965. The payment,",
"accompanying the documents to be served, must be in",
"the form of a traveller’s cheque or a cheque, in the",
amount of Can $50. The travellers cheque or cheque,
must be drawn on a Canadian Bank. The details may be,
seen at www.hcch.net.,
7. Consulate General of India in Sydney has informed,
that the Sheriff’s Office of NSW levies a fee of AUD,
54 for serving summons through their office. The fee,
could be remitted in favour of the Consulate General of,
India Sydney and the details of the ‘Head of Account’,
under which such payment has to be debited be,
provided for making necessary action. (details,
available at www.hcch.net).,
173,
8. The documents as received from foreign country along,
with the report in original are sent herewith for taking,
further necessary action at your end.,
"17. (a) In criminal proceedings, to compel appearance of an",
"accused, the Court may direct issuance of warrant and other",
process in the manner provided by the Code.,
"(b) The notice shall, if practicable, be served personally on the",
person concerned.,
"(c) Where the person, by exercise of due diligence, cannot be",
"found, the notice may be served by leaving it with some adult",
"male member of his family residing with him, and the person",
with whom the notice is so left shall sign a receipt therefor.,
"(d) If service, with due diligence, cannot be effected on the person",
"concerned, the serving officer shall affix a copy of the notice on",
some conspicuous part of the house or homestead in which the,
"person ordinarily resides and the Court, after making such",
"inquiries as it thinks fit, may either declare the notice to have",
been duly served or order fresh service in such manner as it,
considers proper.,
(e) Where the person concerned is in the active service of the,
"Government, the Court shall ordinarily send the notice to the",
"head of the office in which such person is employed, who shall",
cause the notice to be served and send receipt to the Court,
under his signature with the endorsement that notice has been,
served.,
"(f) The Court may, if it has reason to believe, that the person",
"charged is absconding or is otherwise evading service of notice,",
or if he fails to appear in person or to continue to remain,
"present in person in pursuance of the notice, wherever required,",
"direct a warrant, bailable or non-bailable, for his arrest,",
174,
addressed to one or more police officers or may order,
attachment of property.,
(g) Every warrant of arrest ordered by the Court shall be issued,
under the signature of the Registrar in Form No. II in Chapter,
"XIV and shall be executed, as far as may be, in the manner",
provided by the Code.,
(h) The manner and mode of execution of the warrant has been,
given in Chapter XIV.,
175,
CHAPTER XVIII,
PAPER BOOKS,
1. In a main case and in relation to any application or document filed,
"therein, unless otherwise provided, at least three copies of the paper",
books shall be filed.,
"2. If the case is referred to a larger Bench, such additional number of",
"copies of paper books, as may be required as per the composition of",
"larger Bench, shall be filed within one week from the date of order",
referring the case to a larger Bench.,
3. The index of the paper books shall tally with the index of the original,
case file.,
4. The documents for inclusion shall be sent by the Judicial branches to the,
"paper book godown [Section IA (Annexe)], under acknowledgment, on",
"weekly basis, except in urgent circumstances.",
"5. The Branch Officers of Judicial branches, shall, wherever a diary",
"number, pursuant to the order/notice by the Court, has been converted",
"into special leave petition or appeal number, intimate the special leave",
"petition or appeal number, in writing, to the Assistant Registrar, in-",
"charge of paper books godown, and send the relevant copies of Record",
of Proceedings for inclusion in the paper books.,
"6. The paper books of the cases shall not be preserved, from the date of",
"order of disposal, for more than two months and shall be destroyed",
"accordingly, except in the case of transfer petitions, which shall be",
destroyed after one month from the date of disposal.,
7. The paper books shall be maintained properly and dust-free.,
8. No documents for circulation shall be accepted on working days after,
"4:00 p.m., except on Saturday after 12.00 noon, for the cases listed on",
the following working day.,
176,
"9. No request for supply, or copy, of paper book shall be accepted, except",
in accordance with Order XIII of the Rules.,
10. Green tags with ‘plastic ends of 1’ shall be used in the paper books.,
11. The inclusion of documents in the paper-books shall be accepted in,
Section 1A (Annexe) as per the following schedule:,
Monday,
II - from 10.30 a.m. to 12.00 noon,
IIB - from 12.00 noon to 1.00 p.m.,
IIC - from 2.30 p.m. to 3.30 p.m.,
IV - from 3.30 p.m. to 4.30 p.m.,
Tuesday,
IIA - from 10.30 a.m. to 12.00 noon,
III - from 12.00 noon to 1.00 p.m.,
IVB - from 2.00 noon to 3.00 p.m.,
IX - from 3.00 p.m. to 4.00 p.m.,
Wednesday,
IVA - from 10.30 a.m. to 12.00 noon,
X - from 12.00 noon to 1.00 p.m.,
XI - from 2.00 p.m. to 3.30 p.m.,
Thursday,
XVII - from 10.30 a.m. to 12.00 noon,
XVIA - from 12.00 noon to 1.00 p.m.,
XIV - from 2.00 p.m. to 3.30 p.m.,
XIA - from 3.30 p.m. to 4.30 p.m.,
Friday,
XV - from 10.30 a.m. to 12.00 noon,
XIIA - from 12.00 noon to 1.00 p.m.,
IIIA - from 2.00 p.m. to 3.00 p.m.,
PIL - from 3.00 p.m. to 4.00 p.m.,
177,
Saturday,
XII - from 10.30 a.m. to 11.30 a.m.,
XVI - from 11.30 a.m. to 12.30 p.m.,
General,
1. The Assistant Registrar and the Branch Officer shall ensure that,
circulation of documents shall be sent to the Paper Books branch as,
soon as they are ready for circulation and shall not send the whole,
circulation together at the eleventh hour.,
2. In case any additional documents have been received in a case which,
"has appeared in the advance list or final list, such documents shall be",
sent to the Paper Books branch with the remark “The matter has,
appeared in the advance list or final list”. In case the paper books are,
"in the custody of Paper Books branch, such documents shall be",
"included forthwith, otherwise they shall be sent by way of circulation.",
3. Letters for adjournment shall be sent for circulation only in cases,
which have appeared in the final cause list.,
4. The Record of Proceedings or other documents shall specifically,
"mention the Court number, item number and date of listing at the top",
"right corner of such documents, if the case has appeared in the final",
cause list.,
"5. De hors the schedule, any Judicial branch can send any Record of",
Proceedings or documents for inclusion between 3.30 p.m. and 4.30,
p.m. on Wednesday.,
"6. A dealing Assistant shall, expeditiously but not later than three days,",
"ensure that Record of Proceedings/orders or other documents, sent by",
"the Judicial branches, are included in the Paper Books.",
7. Whenever any document is received for inclusion in the Paper Books,
"branch, under acknowledgment, it shall be the responsibility of the",
branch to include the document in the concerned paper books.,
178,
"8. A document, Record of Proceedings or order once circulated shall not",
be sent again for inclusion by the Judicial branches.,
"9. Inclusion of documents shall be done carefully, preferably with the",
help of punching machine and paper cutters so that the shape and size,
of the paper books are not disturbed and the documents included do,
not come out of the paper books.,
10. The paper books shall be sent as per schedule/directions given by the,
"Judges. The Branch Officer or dealing Assistant, as the case may be,",
shall confirm the receipt of the paper books or documents from the,
secretariat of the Judges.,
179,
CHAPTER XIX,
"JUDGMENT, DECREE, ORDER AND REPORT",
"1. The Court, after the case has been heard, shall pronounce judgment in",
"open Court, either at once or on some future day, of which due notice",
"shall be given to the parties or their advocates on-record, and the",
decree or order shall be drawn up in accordance therewith.,
2. A member of the Bench may read a judgment prepared by another,
member of the Bench.,
3. Subject to the provisions relating to review contained in Order XLVII,
"of the Rules, a judgment pronounced by the Court or by a majority of",
the Court or by a dissenting Judge in open Court shall not afterwards,
"be altered or added to, except for the purpose of correcting a clerical",
or arithmetical mistake or an error arising from any accidental slip or,
omission.,
"A judgment, decree or order may also be corrected in the like",
manner under Section 152 of the Code.,
4. Every decree passed or order made by the Court shall be drawn up in,
the Registry and be signed by the Additional Registrar/Deputy,
Registrar and sealed with the seal of the Court and shall bear the same,
date as the judgment in the suit or appeal.,
5. The decree passed or order made by the Court in every appeal and any,
order for costs in connection with the proceedings therein shall be,
transmitted by the Registrar to the Court appealed from and steps for,
enforcement of such decree or order shall be taken in that Court in the,
manner prescribed by law.,
6. Orders made by the Court in other proceedings shall be transmitted by,
the Registrar to the Judicial or other authority concerned to whom,
such orders are directed and any party may apply to the Judge in,
"Chambers that any such order, including an order for payment of",
"costs, be transmitted to any other appropriate Court or other authority",
for enforcement.,
180,
7. In case of doubt or difficulty with regard to a decree or order made by,
"the Court, the Additional Registrar or Deputy Registrar, as the case",
"may be, shall, before issuing the draft, submit the same to the Court.",
8. Where the draft of any decree or order is required to be settled in the,
presence of the parties or where the parties require it to be settled in,
"their presence, the Registrar or Additional Registrar or Deputy",
"Registrar shall, by notice in writing, require the parties to appear",
before him on a day and time specified and to produce the briefs and,
"such other documents, as may be necessary, to enable the draft to be",
settled.,
"9. Where any party is dissatisfied with the decree or order, as settled by",
"the Registrar, the Registrar shall not proceed to complete the decree or",
order without allowing that party sufficient time to apply by motion to,
"the Court, which shall not exceed ninety days from the date of order",
of the Registrar failing which the Registrar shall proceed to settle the,
decree.,
10. Where any judgment or order of the Bench contains any direction for,
circulation of such judgment or order amongst the High Courts or any,
"authorities or require that the matter be placed before the Chief Justice,",
the matter shall be placed before the Registrar (J-I) for compliance.,
"11. (i) A copy of every reportable judgment or order, unless",
"otherwise directed, be supplied to:",
(a) the Editor/Assistant Editor for the purpose of,
Headnotes in Supreme Court Reports;,
(b) Bar Library;,
(c) Judges Library;,
(d) secretariat of the Judges of the Bench (two copies,
each);,
"(e) concerned Judicial branch for case files (in case of civil,",
"criminal and death cases; two, four and six copies",
respectively);,
181,
(f) Parliament House; and,
"(g) Ministry of Law & Justice, Shastri Bhawan.",
"(h) Centre for Research & Planning, Supreme Court of",
India,
"(ii) A certified copy of the judgment or final order shall be sent,",
"either in physical or electronic form, under the signature of",
the Assistant Registrar of the concerned Judicial branch--,
(a) to the Court appealed from;,
"(b) in criminal cases where the accused is not in Jail, to the",
Court wherefrom the accused had furnished bail;,
"(c) in criminal cases where the person is in Jail, to the",
Officer in-charge of the Jail for his record;,
(d) in criminal cases where the person is in jail and,
"conviction has been maintained, to the person through",
the Officer in-charge of the Jail;,
"(e) in criminal cases, first copy be given to the accused",
without any fee;,
"(f) in writ cases, to the concerned authorities",
impleaded as parties;,
"(g) in election petitions, to the Central Government for",
publication in the official gazette;,
"(h) in Reference, a Report to the President or the Governor,",
as the case may be;,
(i) in Reference made by the Central Government or,
"Statutory Tribunals under Statute, to the Central",
"Government or Statutory Tribunal, as the case may be.",
12. A copy of the Judgment (reportable and non-reportable) be issued to,
the journals on payment of prescribed charges/annual token fee.,
182,
CHAPTER XX,
CERTIFIED COPIES,
1. A party to a proceeding in the Supreme Court shall be entitled to,
"apply for and receive certified copies of all pleadings, decrees or",
"orders, documents and deposition of witnesses made or exhibited in",
the said proceeding at his expense.,
"2. A person, who is not a party to the case, appeal or matter, pending or",
"disposed of, may apply to the Judge in Chambers in terms of Order",
"VIII, Rule 6(1) read with Order V Rule 2(37) of the Rules for supply",
"of copies other than orders/judgments, who, on good cause shown,",
may allow such person to receive such copies as is or are mentioned,
in the last preceding clause.,
3. An application for ‘certified copy’ or unauthenticated ‘copy’ may be,
presented in Form No. 29 and a copy be given to:,
(i) advocate on-record;,
"(ii) party, even if represented by an advocate on-record;",
(iii) party in-person;,
"(iv) advocate, other than the advocate who argued the case, whose",
name is shown in the Record of Proceedings; and,
"(v) advocate, duly authorized by the advocate on-record in the case.",
4. (a) A party may apply by post or eMail to the Registrar (Copying,
Section) giving full particulars of the case along with the,
requisite copying fee for urgent/ordinary delivery and postal,
"charges, wherever required.",
(b) A non party can apply for certified or unauthenticated copy of,
judgments/orders by moving an application in prescribed Form,
29 along with affidavit as mentioned therein.,
5. (a) An application for certified or unauthenticated copy presented at,
"the Copying branch or sent by Post or eMail, shall be",
scrutinised by the dealing Assistant and in case it is found to,
"be defective, defects shall be notified on the official website",
183,
"and through SMS, if phone number is given, by Post or",
"eMail, as the case may be.",
"(b) If the application is found to be in order, it shall be",
registered and allotted a number. The dealing Assistant shall,
"forthwith issue a receipt therefor. Such receipt shall, inter",
"alia, indicate the registration number of the application and",
the date on which the certified copy is likely to be ready.,
"6. On every copy after it is prepared, the following shall be entered:",
(a) application filed on;,
(b) the date given to receive copy;,
(c) date on which copy is made ready; and,
(d) the date on which the copy is received by the applicant or sent,
to the applicant.,
7. (i) The fee and charges for obtaining certified copy or,
unauthenticated copy shall be as under:,
(a) Re.1/- per folio;,
(b) Rs.5/- for urgent copy;,
(c) Rs.10/- for certification;,
(d) Rs. 5/- in case of application made by a third party;,
(e) Rs. 22/- for postal charges (minimum) in case the request,
is received by registered post or eMail;,
(ii) The copies have been classified into following categories:,
(a) A1- urgent certified copy,
(b) A2 - urgent unauthenticated copy;,
(c) B - ordinary certified copy; and,
(d) C - ordinary unauthenticated copy.,
8. A party can apply for certified or unauthenticated copy of the kind,
mentioned in clause (1) of this Chapter during the working hours on,
all working days of the Registry.,
"9. An accused person shall not be required to pay copying charges,",
except for copies other than the first.,
184,
"10. A copy of Record of Proceedings, judgment or order is issued within a",
"day on urgent basis, whereas ordinary copy is issued within three days",
from the date of registration of the application.,
11. Copies of the documents shall be given within seven days from the,
date of registration of the application or receipt of documents from the,
"concerned Branch, as the case may be.",
12. Every certified copy shall be certified by the Assistant,
"Registrar/Branch Officer or such other officer, as may be authorized in",
"that behalf by the Registrar, to be true copy of the original and shall be",
sealed with the seal of the Court in accordance with Rule 6 of Order,
III of the Rules.,
13. (a) No certified copy shall be given of any registered document or,
of a document which is itself a ‘copy’ of the original document.,
"However, if such a document is a copy annexed with any",
petition/appeal/application/reply or any other pleading,
"presented in Court, then a ‘copy’ may be issued.",
(b) Any copy other than certified copy shall bear an endorsement,
that ‘it is not a certified copy’.,
"14. Notwithstanding anything contained in Order XIII of the Rules, no",
party or person shall be entitled as of right to receive copies of or,
"extracts from any minutes, letter or document of any confidential",
"nature or any paper sent, filed or produced, which the Chief Justice or",
the Court directs to keep in sealed cover or considers to be of,
confidential nature or the publication of which is considered to be not,
"in the interest of the public, except under and in accordance with an",
order specially made by the Chief Justice or by the Court.,
15. The functioning of the Copying branch shall be regulated as per the,
guidelines and directions issued by the Chief Justice from time to,
time.,
185,
16. (a) Where an application for certified or unauthenticated copy is,
"sent by post or eMail, the prescribed fee/charges shall be",
"remitted by postal order/demand draft in favour of Registrar,",
Supreme Court of India.,
"If, on receipt of an application by post or eMail, the",
"amount is found to be deficient, the applicant shall be informed",
"by post or eMail, as the case may be, to make good the",
deficient fee/charges.,
"(b) An application received by post or eMail, shall be acted upon",
only after receipt of the prescribed fee/charges.,
"(c) On receipt of the prescribed fee/charges by post, court fee shall",
be purchased and affixed on the application.,
(d) If the defects are not removed within twenty eight days from,
"the date of communication of the defects, the application shall",
be filed by the Registrar and the Postal Order/Demand Draft,
"may be returned to the applicant, at his expense.",
"(e) Where the defects are removed within the period stipulated, the",
Copying branch shall proceed to prepare the certified or,
unauthenticated copy applied for and despatch it by registered,
post at the address given in the application.,
"17. Where a certified copy of a digitally signed judgment or order,",
"transmitted to the main server of the Court, has been applied for,",
the dealing Assistant shall access the same and shall prepare the,
certified or unauthenticated copy.,
"18. As regards documents, the dealing Assistant shall prepare photocopies",
"of the documents applied for, if a scanned copy thereof is not",
"available, and after completing the formalities, certified copy or",
"unauthenticated copy, as the case may be, shall be prepared and",
issued.,
186,
19. No certified copy shall contain the signature of the Judges. Care shall,
be taken especially to mask the signatures of the Judges while,
scanning or preparing a photocopy from the original document,
containing such signatures.,
"20. A certified or unauthenticated copy, when ready, shall be delivered to",
"the applicant or a person authorized by him, under acknowledgment.",
21. The Copying Branch shall maintain a register and accounts in,
respect of all the applications presented or sent by post or,
eMail.,
General,
1. No certified or unauthenticated copy of an ex parte interim order shall,
"be issued to a petitioner/appellant, unless he produces the proof of",
filing of process in the case.,
2. If a party or advocate on-record desires to obtain a copy of the,
"proceedings of the Court on the same day, he may file the requisite",
application with correct particulars in that behalf before 11.00 a.m.,
affixing the prescribed fee/charges.,
187,
CHAPTER XXI,
RECORDS,
Inspection or Search,
"1. A party to any cause, appeal or matter, subject to the provisions of the",
"Rules, may apply in Form No.36 to the concerned Registrar and shall",
"be allowed to search or inspect records in the case, on payment of the",
prescribed fee and charges.,
"2. Any person, who is not a party to the case, appeal or matter, may",
make an application for inspection or search before the Judge in,
Chambers under Order V Rule 2(37) of the Rules.,
"3. (a) A search or inspection, in a pending case, shall be allowed only",
in the presence of an officer of the Court and after twenty four,
"hours’ notice in writing to the parties, who have appeared.",
"(b) The copies of documents shall not be allowed to be taken, but",
notes of the search or inspection may be made.,
4. A party or his advocate on-record or an advocate duly authorised,
"by him, or party in-person to any cause, appeal or matter, whether",
"pending or disposed of, may be allowed to search or inspect the",
records.,
5. (a) The inspection of the records of a pending case shall be done in,
"the concerned Judicial branch and, in a disposed of case, in the",
Record Room. The inspection may be permitted under the,
orders of the Branch Officer.,
"(b) In case of original records, the inspection or search shall",
take place in the branch having the custody of such records.,
6. A register shall be maintained by the Branch Officer and every,
"person seeking search or inspection shall, beforehand, enter",
necessary particulars therein.,
"7. During search or inspection, no pen or ink shall be used and pencil",
and paper may be used and no marks shall be made on any record or,
papers inspected. Any violation would deprive the person to inspect,
188,
"such records for such period, as the Registrar may direct.",
"8. The fee for search or inspection by means of court fee shall be Rs.50/-,",
which shall be non-refundable.,
9. The inspection shall be done within one week from the date on which,
"inspection has been ordered and, in default, the order shall lapse and",
no inspection shall be permitted without a fresh application.,
Reconstruction,
1. It shall be ensured that record of a case is not lost or misplaced or,
"mutilated by rodents, termites or otherwise.",
"2. Where a record is lost, misplaced or mutilated, either fully or partially,",
"from the custody of any officer or official of the Registry, the matter",
shall immediately be reported to the Registrar.,
3. Any delay in reporting matter to the Registrar may invite adverse,
inference.,
4. The Registrar shall cause such report to be circulated amongst,
all the officers and officials of the Judicial branches of the Registry. If,
such record is in the possession of any officer or official of the,
"Registry, he shall immediately intimate the Registrar.",
5. Every possible effort shall be made to trace the record.,
"6. Where the record could not be traced, the Registrar shall record a",
"finding that the record has been lost, misplaced or mutilated, fully",
or partially. The matter shall then be placed before the Chief Justice,
"for appropriate orders, including orders for part or full",
reconstruction of such record.,
"7. Where reconstruction of the record relates to the Court, it shall be",
reconstructed by the Registrar and where it relates to the High Court,
"or lower Court, it shall be reconstructed by the Registrar of the",
High Court or Presiding Officer of the lower Court under the,
"supervision of the District Judge, as the case may be.",
189,
Preservation and Destruction,
1. There shall be an index of the record in every case in the form,
prescribed below --,
Index of Papers,
in,
Civil Appeal No.________________ of _____________(or Criminal,
Appeal No._________or Petition No.____________or Suit,
No._________________),
Cause Title,
Serial Date of filing Description No. of the Remarks,
No. the paper in of paper part to which,
the record it belongs,
"2. The record in each case shall be divided into two parts, Part I to be",
"preserved permanently in physical, digitized, scanned, microfilmed or",
such other form as may be decided by the Chief Justice and Part II to,
be preserved for the period as hereinafter provided.,
3. Each paper in the record shall be numbered and entered in the Index.,
"On the first page at top right corner of the document, the part shall be",
specified to which it will belong.,
4. (a) The period for preserving the record shall be reckoned from the,
date of the final decree or order and in case an application for,
review is filed from the date of the final decree or order made,
on review:,
Provided that where an order is to be given effect on a,
"future date mentioned in the order, the period shall be reckoned",
from that future date.,
190,
"(b) In the case of registers, the period shall be reckoned from the",
date of last entry in the register.,
"5. (a) The record of admission hearing cases, including cases for",
"preliminary hearing, affidavits in opposition, rejoinder",
"affidavits and documents (except original documents), if any,",
and such like cases may not be retained beyond one year of,
their disposal.,
"(b) Only the index of documents filed, original documents and the",
order disposing of the case may be preserved permanently and,
the rest of the papers be discarded and destroyed.,
6. The Registrar may direct that any paper assigned to Part II be,
transferred to Part I for being preserved permanently.,
"7. Records which do not fall under Part I or Part II, as classified below,",
"shall be referred to the Registrar, who shall decide the Part under",
which they should be included.,
"8. When any record is ripe for destruction, it shall be effectively",
shredded and the shredded strips may be disposed of as waste and the,
sale proceeds shall be credited to the Central Government.,
"9. As soon as the record is destroyed, a note shall be made in the index",
that the record has been destroyed as also the date of destruction by,
the Branch Officer.,
10. A register of records destroyed shall be maintained by the Branch,
Officer and all entries regarding destruction shall be made therein.,
PART I,
The following papers shall be included under Part I:,
1. Index.,
2. Judgment.,
3. Decree or Order.,
"4. Pleadings (Plaint, written statement, set off and counter claim).",
191,
"5. Petition of appeal, reply in petition of appeal and rejoinder to the",
"reply, with such annexures as are original documents.",
6. Statement of Case.,
7. Original petitions including admitted special leave petition and Article,
"32 petitions, objection/reply to the notice and rejoinder to the reply,",
with such annexures as are original documents.,
8. Reference received under Article 143.,
9. Reference received under Article 317(1) or under any Statute.,
"10. Memorandum of compromise, award of arbitrators, which results in a",
decree.,
11. Original documents.,
"12. Papers of historical, sociological, scientific or archival value and such",
"other papers, as in the opinion of the Court or the Registrar should be",
permanently preserved.,
13. Served summons and notices.,
14. Acknowledgments(s) of receipt of summons and notices by the,
respondent(s)/opposite party(ies).,
"15. Affidavit of service, if any, filed under Rule 5, Order LIII of the",
Rules.,
16. Any other document evidencing the service of summons and notices,
on the respondents(s)/opposite party(ies).,
Registers,
"1. Registers of suits, civil and criminal appeals, petitions under Article",
"32, special leave petitions, special references and miscellaneous",
petitions.,
2. Rolls of advocates and enrollment files.,
PART II,
The following papers shall be included in Part II and shall be destroyed after,
the period indicated below:,
"1. Appearance, power of attorney and Vakalatnama. One year",
2. Affidavits. One year,
3. Taxation files including bills of costs. One year,
4. Register of bills of costs. One year,
192,
5. Despatch register. One year,
6. Applications for condonation of delay and such One year,
other formal application,
7. Correspondence in cases. One year,
8. “Unclaimed documents other than original documents” One year,
9. Office notes in the case files One year,
10. Copies of Unserved summons and notices. One year,
11. Copying register. One year,
"12. Surplus copies of printed records, and of pleading One year",
and petitions,
13. Minutes Book of the Judge to be destroyed by One year,
burning on the laying down of office by the,
Judge unless the Judge desires to retain them,
in his personal custody.,
193,
CHAPTER XXII,
PAYMENT INTO AND OUT OF COURT OF SUITORS’ FUNDS,
1. Any amount directed to be paid into the Court to the credit of any case,
"shall be paid into the UCO Bank, Supreme Court Compound, New",
"Delhi (or any other Nationalised Bank(s), as may be directed by the",
Chief Justice from time to time) into an account entitled ‘Government,
Account-P-Deposits and Advances-II Deposits Not Bearing Int.-(c),
other Deposits A/cs.-Deptl. and Judicial Deposits-Civil Deposits-Civil,
Court Deposits’.,
"2. The Registrar may, in appropriate cases, authorise the acceptance of",
"moneys by demand drafts, banker’s cheques or pay orders issued in",
favour of the Registrar and payable in Delhi or New Delhi by a,
Nationalised/Scheduled Bank and direct that the said amount be,
"deposited with the Bank. On encashment, the date of tender in such",
"cases shall be deemed to be the date on which such draft, cheque or",
pay order has been presented for encashment:,
"Provided that such tender by demand draft, banker’s cheque or",
pay order has been made a day prior to the due date.,
3. A Lodgment Schedule in Form No.25 shall be presented by the person,
ordered to pay money into Court to the Branch Officer of the,
Accounts branch for issue of a challan to enable him to make the,
payment into the Bank. It shall be accompanied by a copy of the order,
directing the payment or shall bear a certificate from the Registrar,
endorsed thereon the amount to be paid and the time within which the,
payment is to be made.,
"4. (a) On presentation, a challan, in duplicate, specifying the amount",
"and the date within which payment is to be made but, in no case",
"exceeding ten days from the date of issue of the challan, shall",
"be issued by the Branch Officer to such party, who shall present",
the same at the Bank and make the payment.,
194,
"(b) On receiving payment, a copy of the challan duly signed and",
"dated, acknowledging the receipt of the money shall be returned",
to the person making the payment.,
(c) The Bank shall not accept the payment if the amount is,
tendered beyond the date mentioned in the challan as the last,
date for payment.,
"5. On production of the copy of the challan acknowledging payment, a",
credit entry shall be made in the books maintained by the Accounts,
branch for the said amount. A receipt signed by the Registrar shall be,
issued to him and the said challan shall be retained in the branch.,
6. (a) The Branch Officer shall keep a register causewise in respect of,
"all money, effects and securities. The purpose of deposit and the",
"orders of attachment received, if any, of the funds shall be duly",
entered in the register.,
(b) No money shall be paid out of the funds in Court without an,
order of the Court.,
7. An application shall be made to the Court for payment out of Court.,
It shall be accompanied by a Certificate of Funds signed by the,
"Registrar showing the amount standing to the credit of the case, from",
"which payment out of Court is sought and the claims and attachments,",
"if any, subsisting thereon on the date of the certificate.",
"8. (a) If the Court makes an order in favour of a party, he shall apply",
"to the Registrar for payment in accordance with the said order,",
who shall issue an order for payment in the prescribed form.,
The payment order shall be endorsed at the same time on the,
original challan received from the Bank.,
(b) The payment order together with the challan duly endorsed for,
"payment shall be handed over to such party, who shall present",
"the same to the Pay and Accounts Officer, Supreme Court of",
"India, New Delhi, and obtain payment.",
195,
"(c) Where, however, the entire amount of the challan or the entire",
balance remaining unpaid thereunder is not to be paid out to,
"such party, the original challan shall not be handed over to him,",
but only a copy thereof endorsed for payment shall be given to,
"him for presentation to the Pay and Accounts Officer, the",
original challan being retained in the Accounts branch until the,
funds are fully paid out.,
9. Where a party seeks payment of the moneys or securities paid to the,
"Registrar or deposited with him, a commission will be recovered from",
it at the rate of one per cent and two per cent respectively on the,
"principal amount and the interest drawn on the invested money,",
"subject to the maximum of Rs. 15,000/-.",
"10. (a) The Branch Officer, shall check and tally the accounts",
maintained in the branch every month with the monthly,
statements of receipts and payments to be received from the,
Pay and Accounts Officer.,
(b) The Registrar shall certify under his signature every month that,
the accounts have been duly checked and tallied.,
11. Fees of Rs. 250/- for registration of an advocate on-record shall be,
paid into the Bank to the credit of an account entitled ‘XXI-,
Administration of Justice Receipts of the Supreme Court’.,
12. Fees of Rs. 100/- shall be payable for registering a clerk of an,
advocate or a firm of advocates.,
"13. Fees of Rs. 50/- shall be payable, on requisition, for issue of an",
identity card in substitution of one that is lost or damaged.,
14. Where a party seeks photograph copies or copies of maps filed in any,
"case, he shall pay the actual charges to be incurred in cash for the",
same.,
196,
"15. (a) In a disposed of case in which the amount has been deposited,",
the concerned Judicial branch shall immediately inform the,
Cash and Accounts-II branch by supplying the copy of the order,
so that the requisite information can be updated in the records,
of the branch.,
(b) The list of unclaimed deposits lying in the Suitors’ Fund shall,
"be uploaded on the official website, on monthly basis, so as to",
enable the claimants to present an application seeking payment,
out of moneys in Court within a period of one month from the,
date of disposal of the case.,
(c) Where neither of the parties approach the Court for,
refund/withdrawal of the amount forming part of the Suitors’,
"Fund within six months from the date of disposal of the case,",
such cases with Office Report for Direction shall be placed,
before the Judge in Chambers.,
16. Where an application or a request is not made by the party or his,
"advocate on-record for release of the Bank Guarantee or security, a",
letter shall be sent to the concerned advocate on-record and the party,
to make such application or request. If no reply is received within the,
"period stipulated therein, Office Report for Direction shall be placed",
before the Court.,
General,
"Wherever the Court directs withdrawal of the amount in favour of a party,",
the said party may apply to the Registrar for release of the amount in terms,
of the said direction and no formal application therefor be made.,
197,
CHAPTER XXIII,
DISTRIBUTION OF WORK ON JUDICIAL SIDE,
SECTION ALLOCATION OF WORK,
"I, IA and IA Annexe Custodian of paper books of admission and",
regular hearing cases; maintenance of paper,
books; and despatch of paper books to the,
residential offices of Hon’ble Chief Justice of,
India and Hon’ble Judges.,
"IB Filing of Cases, its scrutiny, categorisation,",
"registration, filing of miscellaneous documents,",
"scanning of fresh cases filed in the Court, etc.",
Extension counter looks after processing of fresh,
"admission cases for listing before the Court,",
"including preparation of office reports, except in",
cases where notice has been issued or where cases,
have been admitted for hearing.,
Listing Listing of Cases.,
"Copying Issue of certified copies of orders, documents, etc.",
copying@sci.nic.in,
Scanning Cell Scanning of disposed of cases.,
"Editorial Preparation of copies of judgments/orders,",
"preparation of headnotes for, and publication of,",
"Supreme Court Reports, accreditation of legal",
correspondents.,
"Judges’ Library Work relating to purchase, receipt and issue of",
books/literature/articles to Hon’ble Chief Justice,
"of India, Hon’ble Judges and Courts.",
Elimination Work relating to all fresh admission hearing,
"cases, which have been dismissed in limine.",
"II Death Cases, Criminal Appeals, Petitions for",
Special Leave to Appeal and Jail Petitions from,
198,
"the States of Assam, Arunachal Pradesh, Manipur,",
"Meghalaya, Nagaland, Sikkim and Tripura,",
"Andhra Pradesh, Telengana, Rajasthan and Uttar",
Pradesh.,
Review Petitions and Curative Petitions arising,
therefrom.,
"IIA Death Cases, Criminal Appeals, Petitions for",
Special Leave to Appeal and Jail Petitions from,
"the States of Bihar, Jharkhand, Madhya Pradesh,",
"Maharashtra, Goa, Union Territory of Dadra and",
"Nagar Haveli, Daman and Diu.",
Review Petitions and Curative Petitions arising,
therefrom.,
"IIB Death Cases, Criminal Appeals, Petitions for",
Special Leave to Appeal and Jail Petitions from,
"the States of Punjab, Haryana, West Bengal,",
"Gujarat, Kerala Odisha, Uttarakhand, Union",
Territories of Andaman and Nicobar Islands and,
Chandigarh.,
Review Petitions and Curative Petitions arising,
therefrom.,
"IIC Death Cases, Criminal Appeals, Petitions for",
"Special Leave to Appeal, Jail Petitions from the",
"States of Chhattisgarh, Delhi, Himachal Pradesh,",
"Jammu and Kashmir, Karnataka, Tamil Nadu and",
Union Territory of Puducherry.,
Review Petitions and Curative Petitions arising,
therefrom.,
III Petitions for Special Leave to Appeal and Civil,
Appeals relating to the State of Gujarat.,
199,
Civil Appeals from 2013 onwards relating to the,
"State of Maharashtra, Goa and Union Territory of",
"Dadra and Nagar Haveli, Daman and Diu.",
Review Petitions and Curative Petitions arising,
therefrom.,
IIIA Civil Appeals from the State of Uttar Pradesh.,
Review Petitions and Curative Petitions arising,
therefrom.,
"IV Civil Appeals from the States of Punjab, Haryana",
and Union Territory of Chandigarh.,
Review Petitions and Curative Petitions arising,
therefrom.,
IVA Petitions for Special Leave to Appeal from the,
"States of Karnataka, Madhya Pradesh and",
Chhattisgarh.,
Civil Appeals from the States of Karnataka and,
Chhattisgarh.,
Review Petitions and Curative Petitions arising,
therefrom.,
IVB Petitions for Special Leave to Appeal from the,
"States of Punjab, Haryana and Union Territory of",
Chandigarh.,
Review Petitions and Curative Petitions arising,
therefrom.,
V/VI Maintenance of Original Records.,
Appointment of Translators and Translation of,
vernacular documents.,
Rolling of Cause Lists.,
200,
"VII [R & I] Receipt and Issue of Dak, including letters/orders/",
"notices, etc.",
"VIII [Record Room] Maintenance of disposed of cases, Advocate-on-",
"Record Examination, Designation of Senior",
Advocates and Amendment of Supreme Court,
Rules.,
IX All Petitions for Special Leave to Appeal and,
Civil Appeals upto the year 2012 from the States,
"of Maharashtra, Goa and Union Territory of",
"Dadra and Nagar Haveli, Daman and Diu.",
Review Petitions and Curative Petitions arising,
therefrom.,
X Writ Petitions relating to infringement of,
fundamental rights under Part-III of the,
Constitution.,
Petitions for Special Leave to Appeal and Civil,
Appeals from the State of Uttarakhand.,
Review Petitions and Curative Petitions arising,
therefrom.,
XI Petitions for Special Leave to Appeal from the,
State of Uttar Pradesh.,
Review Petitions and Curative Petitions arising,
therefrom.,
XIA Petitions for Special Leave to Appeal and Civil,
"Appeals from the States of Kerala, Odisha and",
Union Territory of Lakshadweep.,
Review Petitions and Curative Petitions arising,
therefrom.,
201,
XII Petitions for Special Leave to Appeal and Civil,
Appeals from the States Tamil Nadu and Union,
Territory of Puducherry.,
Review Petitions and Curative Petitions arising,
therefrom.,
XIIA Petitions for Special Leave to Appeal and Civil,
Appeals from the States of Andhra Pradesh and,
Telengana.,
Review Petitions and Curative Petitions arising,
therefrom.,
XIII Preparation of Decrees of the cases allocated to,
"Sections X, XI, XIA, XII, XIIA, XIV, XVI and",
XVIA.,
XIIIB Preparation of Decrees of the cases allocated to,
"Sections IV, IVA, X, XV and XVII.",
XIV Petitions for Special Leave to Appeal and Civil,
"Appeals from the States of Assam, Arunachal",
"Pradesh, Manipur, Meghalaya, Nagaland, Sikkim,",
"Tripura, Delhi and Himachal Pradesh.",
Review Petitions and Curative Petitions arising,
therefrom.,
XV Petitions for Special Leave to Appeal and Civil,
Appeals from the State of Rajasthan.,
Review Petitions and Curative Petitions arising,
therefrom.,
XVI Petitions for Special Leave to Appeal and Civil,
"Appeals from the States of Bihar, West Bengal",
and Union Territory of Andaman and Nicobar,
Islands.,
202,
Review Petitions and Curative Petitions arising,
therefrom.,
"XVIA Arbitration Petitions, Transfer Petitions,",
Transferred Cases from all over India and,
Petitions for Special Leave to Appeal and Civil,
Appeals from the State of Jammu and Kashmir.,
Review Petitions and Curative Petitions arising,
therefrom.,
XVII Petitions for Special Leave to Appeal and Civil,
Appeals from the State of Jharkhand; Election,
Petitions; Petitions for Special Leave to Appeal,
and Appeals arising under various Statutes;,
References; Original Suits; and Suo Motu,
Petitions.,
Review Petitions and Curative Petitions arising,
therefrom.,
"Issue relating to Security Refund, Bill of Costs,",
"Taxation, etc.",
PIL(W) Writ Petitions relating to public interest litigation.,
PIL (English) Letter Petitions.,
Computer Cell Computerisation and generation of Cause Lists.,
Email: supremecourt@nic.in,
"EPBAX Numbers: 011-23388922-24, 23388942",
"FAX: 011-23381508, 23381584",
203,
CHAPTER XXIV,
REMOVAL OF DIFFICULTIES,
In case of any difficulty in relation to the Practice and Procedure of,
the Court and Office Procedure or other matters incidental or ancillary,
"thereto, the Chief Justice may make such order, as may be necessary and",
expedient for removal of such difficulty.,
204,
CHAPTER XXV,
FIRST SCHEDULE,
RULES AS TO PRINTING OF RECORD,
1. The record in appeals to the Court shall be printed in the form known,
as demy quarto on both sides of the paper with single spacing.,
"2. The size of the paper used shall be such that the sheet, when folded",
"and trimmed, will be about 11 inches in height and 81/2 inches in width",
or 29.7 cm. in height and 21 cm. in width.,
3. The type to be used in the text shall be pica type but “Long Primer”,
"shall be used in printing accounts, tabular matter and notes. Every",
tenth line shall be numbered in the margin.,
"4. Records shall be arranged in two parts in the same volume, where",
"practicable, viz.--",
"Part I- The pleadings and proceedings, the transcript of the evidence",
"of the witnesses, the judgments, decrees, etc., of the Courts below,",
down to the orders admitting the appeal.,
Part II- The exhibits and documents.,
"5. The Index to Part I shall be in chronological order, and shall be placed",
at the beginning of the volume.,
"The Index to Part II shall follow the order of the exhibit mark, and",
shall be placed immediately after the Index to Part I.,
"6. Part I shall be arranged strictly in chronological order, i.e., in the same",
order as the index.,
Part II shall be arranged in the most convenient way for the use of the,
"Court, as the circumstances of the case require. The documents shall",
"be printed as far as suitable in chronological order, mixing plaintiff’s",
and defendant’s documents together when necessary. Each document,
"shall show its exhibit mark, and whether it is a plaintiff’s or",
defendant’s document (unless this is clear from the exhibit mark) and,
in all cases documents relating to the same matter such as:-,
205,
"(a) a series of correspondence, or",
"(b) proceedings in a suit other than the one under appeal, shall be",
kept together. The order in the record of the documents in Part,
"II will probably be different from the order of the Index, and the",
proper page number of each document shall be inserted in the,
printed Index.,
The parties will be responsible for arranging the record in,
"proper order for the Court, and in difficult cases counsel may be asked",
to settle it.,
7. The documents in Part I shall be numbered consecutively. The,
"documents in Part II shall not be numbered, apart from the exhibit",
mark.,
8. Each document shall have a heading which shall consist of the,
number of exhibit mark and the description of the document in the,
"Index, without the date.",
9. Each document shall have a heading which shall be repeated at the top,
"of each page over which the document extends, viz.--",
PART I,
(a) Where the case has been before more than one court the short name of,
the court shall first appear. Where the case has been before only one,
"court, the name of the court need not appear.",
(b) The heading of the document shall then appear consisting of the,
"number and the description of the documents in the Index, with the",
"date, except in the case of oral evidence.",
"(c) In the case of oral evidence, ‘plaintiff’s evidence’ or ‘defendant’s",
evidence’ shall appear next to the name of the court and then the,
"number in the Index and the witness’s name, with ‘examination’,",
"‘cross-examination’ or ‘re-examination’, as the case may be.",
206,
PART II,
The word ‘Exhibit’ shall first appear next to it the exhibit mark and the,
description of the document in the Index with the date.,
Sufficient space shall be left after the heading to distinguish it from the rest,
of the matter printed on the page.,
10. The parties shall agree to the omission of formal and irrelevant,
"documents, but the description of the document may appear (both in",
"the Index and the record), if desired, with the words ‘not printed’",
against it.,
"A long series of documents, such as accounts, rent rolls,",
"inventories, etc., shall not be printed in full, unless counsel advises,",
but the parties shall agree to short extracts being printed as specimens.,
11. In case where maps are of an inconvenient size or unsuitable in,
"character, the appellant shall, in agreement with the respondent,",
"prepare maps drawn properly to scale and of reasonable size, showing",
"as far as possible, the claims of the respective parties, in different",
colours.,
-------------,
SECOND SCHEDULE,
FEES PAYABLE TO ADVOCATES,
Part I,
S. Fee on brief not exceeding Refresher,
No. Rs. not,
exceeding,
Rs.,
"1. Defended appeals, suits or Leading Counsel 24,000 24,000",
reference under Article 143,
or Article 317(1) of the,
Constitution or under any,
Statute or defended petitions,
under Article 32 of the,
Constitution.,
207,
"Associate 12,000 6,000",
"Advocate, if any",
Advocate-on-,
Record for,
instructing.,
"2. Undefended appeals. One fee 14,000 No refresher",
"3. Petitions for special leave (or Leading Counsel 8,000 No refresher",
appeals on a certificate heard,
ex-parte).,
"Advocate-on- 4,000 No refresher",
Record when not,
pleading but,
only instructing.,
"4. Undefended petitions under Leading Counsel 15,000 7,500",
Article 32 of the Constitution,
"Advocate-on- 8,000 4,000",
Record when not,
pleading but,
only instructing,
"5. Notices of motion other than Leading Counsel 15,000 per No refresher",
petitions under Article 32 of appea-,
the Constitution when rance,
opposed.,
"Advocate-on- 8,000 per No refresher",
Record appea-,
rance,
"6. Petitions in courts for review. Leading Counsel 15,000 No refresher",
"Advocate-on- 10,000 No refresher",
Record,
"7. Opposed applications for One fee 10,000",
investigations in Chambers.,
"8. Unopposed motions and One fee 5,000",
Chamber applications and,
review applications in,
taxation.,
"9. Attending taxation or hearing One fee 2,500",
judgment.,
"10. Attending settlement of One fee 5,000",
Index and for taking other,
steps for preparation of the,
record.,
208,
"11. Fee to the Amicus Curiae 6,000 upto admission",
"appointed by the Court. stage and 10,000 on final",
disposal stage or hearing,
on regular side after,
"admission/grant of leave,",
or as directed by the,
Court/Chief Justice.,
"12 Fee to the Panel Advocate 6,000 upto admission",
"appointed by the Registry. stage and 10,000 on final",
disposal stage or hearing,
on regular side after,
"admission/grant of leave,",
or as directed by the,
Court/Chief Justice.,
Part II,
S.No. Not exceeding (Rs.),
"1. To junior advocate for drafting petitions for 12,000",
special leave and petitions under Article 32 of the,
Constitution inclusive of the affidavits in support,
of the petition.,
"To the senior for settling petitions for special 10,000",
leave and petitions under Article 32 of the,
Constitution inclusive of the affidavits in support,
of the petition.,
"2. To junior advocate for drafting other petitions or 5,500",
affidavits (other than formal petitions like,
petitions for excusing delay and affidavits in them,
and affidavits of service) or written briefs.,
"To senior advocate for settling other petitions or 7,500",
affidavits (other than formal petitions like,
excusing delay and affidavits in them and,
affidavits of service).,
"3. To junior advocates for drawing statement of case 12,000",
"in appeals, pleadings in suit or special case.",
"To senior advocate for settling statement of case 18,000",
"in appeals, pleadings in suit or special case in",
"consultation with junior, if allowed.",
4. Acting Fees -,
"In appeals (defended and undefended) including 20,000 but not less than",
209,
"suits and References under Article 143 or Article 12,000 as the Taxing",
317(1) of the Constitution or under any statute or Officer may in his,
"defended petitions under Article 32 of the discretion allow,",
Constitution. having regard to the,
nature and duration of,
the ‘Acting’ work,
involved in the case.,
"In undefended petitions under Article 32 of the 10,000",
Constitution.,
Actual postal and telegraph charges where necessary to be allowed in the,
discretion of the Taxing Officer.,
Part III,
1 Printing of paper book Actual cost at a reasonable rate to be allowed,
. by the Taxing Officer,
THIRD SCHEDULE,
TABLE OF COURT FEES,
Part I,
Original Jurisdiction,
S.No. Rs.,
1. Filing and registering plaint 2500,
2. Filing and registering written statement 500,
3. Filing and registering set-off or counter-claim 500,
4. Reply to a counter-claim 500,
5. Petitions under Article 32 of the Constitution other than 500,
petitions for habeas corpus and petitions arising out of,
criminal proceedings,
Part II,
Appellate Jurisdiction,
S.No. Rs.,
"1. Petition for special leave to appeal other than petitions for 1,500",
which Court fee has been distinctly prescribed in entry 2 [At the time of,
below. institution],
"2. Petition for special leave to appeal in the matters falling 5,000",
210,
in any of subject categories mentioned in Part IV of this [At the time of,
Schedule institution],
3. Lodging and registering petition of appeal/SLP at after,
notice stage/other than the matters for which Court Fee,
has been distinctly prescribed in entry 4 below,
Where the amount or value of the subject-matter in,
"dispute does not exceed Rs. 50,000. 1,500",
"For every Rs. 50,000 or part thereof, in excess of Rs.",
"50,000 500",
In case where it is not possible to estimate at a money,
"value the subject-matter in dispute: 1,500",
Provided-,
(1) that the maximum fee payable in any case shall not,
"exceed Rs. 10,00,000 and",
(2) that where an appeal is brought by special leave,
granted by the court or where notice is issued in the,
"special leave petition by the Court, credit shall be given",
"to the appellant/petitioner, as the case may be, for the",
amount of court-fee paid by him at the time of institution,
of SLP/Notice and no more court fee will be charged,
even if leave is subsequently granted in ‘after notice’,
matter and the petition is converted into an appeal.,
4. Lodging and Registering of appeal/SLP at ‘after notice’,
stage/in the matters falling in any of subject categories,
mentioned in Part IV of this Schedule where –,
"(i) value of the subject matter in dispute does not exceed 5,000",
Rupees one lakh.,
"(ii) for every Rs. 50,000 or part thereof in excess of Rs. 1,000",
"1,00,000 till the value reaches Rs. 20,00,000",
"(iii) for every Rs. 1,00,000 or part thereof in excess of 1,000",
"Rs. 20,00,000:",
Provided—,
211,
(1) The maximum fee payable in any case shall not,
"exceed Rs.25,00,000",
(2) That where an appeal is brought by special leave,
granted by the Court or where notice is issued in the,
Special Leave Petition by the Court credit shall be given,
"to the appellant/petitioner, as the case may be, for the",
amount of court-fee paid by him at the time of institution,
of SLP/Notice and no more court fee will be charged,
even if leave is subsequently granted in ‘after notice’,
matter and the petition is converted into an appeal.,
"5,000",
(3) In case where it is not possible to estimate at a money,
value the subject-matter in dispute.,
5. Lodging of caveat 500,
6. Application for review of judgment or order of Court The same fee,
as was paid on,
the original,
proceedings.,
7. Curative Petition The same fee,
as was paid on,
the original,
proceedings.,
"8. Petition of Appeal under Consumer Protection Act, 1986 5,000",
"9. (i) Transfer petitions other than the petitions arising out 2,500 per",
of Matrimonial Disputes matter to be,
transferred .,
(ii) Transfer Petitions arising out of Matrimonial 500 per matter,
Disputes to be,
transferred.,
"10. Election Petition under Order XLVI of these Rules 20,000 along",
with security,
deposit of Rs.,
"50,000",
"11. Appeal under Section 38 of the Advocates Act, 1961 5,000",
"12 Appeal under Section 116A of the Representation of the 20,000",
"Peoples Act, 1951",
212,
For the purpose of this Schedule--,
1. Matter disposed of after hearing the caveator shall be treated to have,
reached “after notice” stage.,
"2. Any dispute regarding subject category, valuation, court fee payable",
or recovery of court fee shall be dealt with and decided by the,
Registrar/Taxing Officer.,
3. Appeal against orders of Registrar/Taxing Officer deciding subject,
"category, valuation, court fee payable or recovery of court fee shall lie",
to the Judge in Chambers whose decision in this regard shall be final.,
4. Registrar/Taxing Officer shall take suitable steps for recovery of,
"unpaid court fee by placing office report before the Court, if the case",
is still pending in the Court.,
Where a matter has been disposed of and for any purpose is pending,
"before any High Court/Subordinate Court/Tribunal, Forum or",
"Authority, the Registrar/Taxing Officer shall report the fact in writing",
"to the concerned High Court/Subordinate Court/Tribunal, Forum or",
"Authority, as the case may be, to direct the petitioner/appellant to first",
"pay/settle unpaid court fee in this Court, or, steps may be taken to",
recover unpaid court fee as arrears of land revenue.,
---------------,
Part III,
Miscellaneous,
S.No Rs.,
1. Vakalatnama 10,
2. Every application to the court not specially 100,
provided for,
3. Every application to the court by notice of motion 200,
where an ad interim ex-parte order is prayed for,
"4. Every application to a Judge in Chambers, the 50",
Registrar or Taxing Officer not specially provided,
for,
5. Every affidavit affirmed or sworn 20,
213,
"N.B.: In the case of references under the Constitution/any statute, such of",
the above fees as may be appropriate shall be charged.,
Note,
No Court fee shall be payable on the following cases:,
"(i) References, but fees in relation to ‘Part-III Miscellaneous’ shall be",
charged.,
(ii) Criminal cases (SLPs/Appeals/WPs/TPs (etc.) .,
(iii) Cases filed by Supreme Court Legal Services Committee .,
(iv) Cases filed by indigent persons.,
(v) Contempt Petitions filed under the Rules to Regulate Proceedings for,
"Contempt of the Supreme Court, 1975.",
General,
"If an applicant seeks transposition as an appellant/petitioner, the court fee",
shall be paid by him as if he was originally a party to the case.,
-----------------,
PART IV,
SUBJECT CATEGORIES,
03 DIRECT TAXES MATTER,
"0301 Income Tax Reference under Section 257 of the Income Tax Act,",
1961,
"0302 Appeals under Section 261 of Income Tax Act, 1961, upon a",
certificate granted by the High Court,
"0303 Other matters under Income Tax Act, 1961",
"0304 Cases relating to Excess Profit Tax Act, 1940",
"0305 Business Profit Tax Act, 1947",
0306 Agricultural Income Tax,
"0307 Reference under Section 27(3)(a) of the Wealth Tax Act, 1957",
"0308 Appeals under Section 29(1) of the Wealth Tax Act, 1957 upon a",
certificate granted by the High Court,
"0309 Gift Tax Act, 1958",
0310 Property Tax,
0311 Valuation,
0312 Capital Gains,
0313 SLPs relating to Wealth Tax,
0314 Income from Salaries,
214,
0315 Income from House Property,
0316 Income from Business or Profession,
0317 Income from other sources,
0318 Deductions/Exemptions,
0319 Penalties/Prosecution/Settlement Commission,
0320 Re-assessment/Revisional Power/Rectification,
0321 CBDT Circular,
0322 Registration,
0323 Others,
0324 Matters relating to recovery of Direct Tax due,
04 INDIRECT TAXES MATTERS,
"0401 Interpretation of the Customs Act, Rules & Regulations",
"0402 Interpretation of Exemption Notification under Customs Act, 1962",
"0403 Interpretation of other Notifications under Customs Act, 1962",
"0404 Valuation of Goods under the Customs Act, 1962",
0405 Sales Tax Act (Central & various States),
"0406 Cess Acts (Rubber, Coffee, Tea, Sugar, etc.)",
0407 Entry Taxes,
0408 Motor Vehicles Taxation,
0409 Purchase Tax,
0410 Licence Fee,
"0411 Classification under the Indian Tariff Act, 1934 & Customs Tariff",
"Act, 1975",
0412 Reference under Section 82C of the Gold Control Act,
0413 Hotel Receipts Tax Act,
0414 Entertainment Tax,
0415 Terminal Tax,
0416 Octroi,
0417 Valuation,
0418 Toll Tax,
0419 Interpretation of the Central Excise Act & the Rules,
"0420 Interpretation of Exemption Notifications under Central Excise Act,",
1944,
"0421 Interpretation of other Notifications under Central Excise Act, 1944",
"0422 Valuation of goods under the Central Excise Act, 1944",
"0423 Tariff classification under the Central Excise Act, 1944 and Central",
"Excise Tariff Act, 1985",
"0424 Import/Export Control Act, 1947",
0425 Import Control Order,
0426 Open General Licence,
215,
0427 Import/Export Policy,
0428 Others,
0429 Professional Tax,
0430 Water & Sewerage Tax,
0431 Service Tax,
"0432 Appeals under Section 130E of the Customs Act, 1962",
"0433 Appeals under section 35L of the Central Excise and Salt Act, 1944",
0434 Anti Dumping Duty,
0435 Value Added Tax,
0436 Matters relating to recover of Indirect Tax due,
"10 COMPANY LAW, MRTP, TRAI, SEBI, IDRAI & RBI",
1001 Matters relating to winding up,
1002 Matters relating to Sick Industries,
1003 Matters arising out of orders of Company Law Board under Sections,
"397 & 398 of Companies Act, 1956",
"1004 Reference under Section 7(2) of the MRTP Act, 1969",
"1005 Appeals under Section 55 of the MRTP Act, 1969",
1006 Others,
1007 Matters relating to disinvestment,
1008 Appeals under section 15Z of Securities and Exchange Board of,
"India Act, 1992.",
1009 Matters filed against the orders of MRTP Commission/ Competition,
Commission.,
1010 Matters pertaining to TRAI/SEBI/IDRAI and RBI including Appeals,
"under Section 18 of TRAI Act, Indian Electricity Acts, 1910 and",
"2003, Electricity Supply Act, 1948 and Electricity Reforms",
"Commission Act, 1998",
1100 ARBITRATION MATTERS,
"28 MERCANTILE LAWS, COMMERCIAL TRANSACTIONS",
INCLUDING BANKING,
2801 Partnership,
2802 Sale of Goods Act,
2803 Contract Act,
2804 Trade Marks/Copy Rights/Patents/Design Act,
2805 Negotiable Instruments Act,
2806 Banks mortgages disputes,
216,
"2807 Hypothecation, Pledge",
2808 Others,
2809 Matters relating to recovery of debts/bank loans due under the banks,
and financial institutions,
2810 Bank Guarantee matters,
2811 Matters relating to Securitisation and Reconstruction of Financial,
"Assets and Reinforcement of Security Interest Act, 2002.",
29 SIMPLY MONEY & MORTGAGE MATTERS ETC.,
2901 Money Lending Act,
2902 Mortgage private,
2903 Others,
"42 MATTERS RELATING TO LEASES, GOVT. CONTRACTS &",
CONTRACTS BY LOCAL BODIES,
4201 Tenders invited or contracts awarded/leases granted or determined,
by Central Government,
4202 Tenders invited or contracts awarded/leases granted or determined,
by public section undertakings.,
4203 Tenders invited or contracts awarded/leases granted or determined,
by State Government/Union Territories,
4204 Tenders invited or contracts awarded/leases granted or determined,
by local bodies,
4205 Others,
"43 STATE EXCISE-TRADING IN LIQUOR – PRIVILEGES,",
LICENCES DISTILLERIES BREWERIES,
217,
SUBJECT CATEGORIES,
01 Labour Matters,
0101 Dismissal,
0102 Retrenchment,
0103 Contract Labour,
"0104 Matters relating to wages, bonus, ad-hoc, casual, daily wages & their",
regularisation,
0105 Matters relating to Workmen Compensation Act,
0106 E.S.I,
0107 Factory Act,
0108 Conditions of Service & Industrial Employment (Standing Orders),
"Act, 1946",
0109 Matters under various States Act,
0110 Others,
0111 Matters relating to Provident Fund,
"0112 Payment of Gratuity Act, 1962",
"0113 Trade Unions Act, 1926",
"0114 Other matters under Industrial Disputes Act, 1947",
02 Rent Act Matters,
0201 Eviction matters of personal necessity,
0202 Eviction matters for re-building and material alteration,
0203 Eviction matters of sub-letting,
0204 Eviction matters of disclaimer of title,
0205 Arrears of rent,
0206 Others,
0207 Eviction on the ground of misuse,
0208 Enhancement of rent,
0209 Eviction on the ground of non-payment of rent,
03 Direct Taxes Matter,
0301 Income Tax Reference under Section 257,
0302 Appeals under Section 261 of Income Tax Act upon a certificate,
granted by the High Court,
"0303 Other matters under Income Tax Act, 1961",
"0304 Cases relating to Excess Profit Tax Act, 1940",
"0305 Business Profit Tax Act, 1947",
0306 Agricultural Income Tax,
"0307 Reference under Section 27(3)(a) of the Wealth Tax Act, 1957",
218,
"0308 Appeals under Section 29(1) of the Wealth Tax Act, 1957 upon a",
certificate granted by the High Court,
"0309 Gift Tax Act, 1958",
0310 Property Tax,
0311 Valuation,
0312 Capital Gains,
0313 SLPs relating to Wealth Tax,
0314 Income from Salaries,
0315 Income from House Property,
0316 Income from Business Profession,
0317 Income from other sources,
0318 Deductions/Exemptions,
0319 Penalties/Prosecution/Settlement Commission,
0320 Re-assessment/Revisional Power/Rectification,
0321 CBDT Circular,
0322 Registration,
0323 Others,
0324 Matters relating to recovery of Direct Tax due,
04 Indirect Taxes Matters,
"0401 Interpretation of the Customs Act, Rules & Regulations",
0402 Interpretation of Exemption Notification under Customs Act,
0403 Interpretation of other Notifications under Customs Act,
0404 Valuation of Goods under the Customs Act,
0405 Sales Tax Act (Central & various States),
"0406 Cess Acts (Rubber, Coffee, Tea, Sugar, etc.)",
0407 Entry Taxes,
0408 Motor Vehicles Taxation,
0409 Purchase Tax,
0410 Licence Fee,
"0411 Classification under the Indian Tariff Act, 1934 & Customs Tariff",
"Act, 1975",
0412 Reference under Section 82C of the Gold Control Act,
0413 Hotel Receipts Tax Act,
0414 Entertainment Tax,
0415 Terminal Tax,
0416 Octroi,
0417 Valuation,
0418 Toll Tax,
0419 Interpretation of the Central Excise Act & the rules,
0420 Interpretation of Exemption Notifications under Central Excise,
Act,
219,
0421 Interpretation of other Notifications under Central Excise Act,
0422 Valuation of goods under the Central Excise Act,
"0423 Tariff classification under the Central Excise Act, 1944 and Central",
"Excise Tariff Act, 1985",
"0424 Import/Export Control Act, 1947",
0425 Import Control Order,
0426 Open General Licence,
0427 Import/Export Policy,
0428 Others,
0429 Professional Tax,
0430 Water & Sewerage Tax,
0431 Service Tax,
"0432 Appeals under section 130E of the Customs Act, 1962",
"0433 Appeals under section 35L of the Central Excise and Salt Act, 1944",
0434 Anti Dumping Duty,
0435 Value Added Tax,
0436 Matters relating to recovery of Indirect Tax due,
05 Land Acquisition &Requisition Matters,
0501 Matters challenging the acquisition proceedings,
0502 Matters challenging compensations,
0503 Requisition & de-requisition of property,
0504 Others,
0505 Acquisition for defence purpose,
06 Service Matters,
0601 Retiral benefits,
0602 Regularisation of ad-hoc employees etc.,
0603 Removal/Dismissal/Termination from service or other major,
penalties,
0604 Suspension,
0605 Compulsory retirement,
0606 Disciplinary proceedings,
0607 Condition of service,
0608 Promotion,
0609 Seniority,
0610 Pay scales,
0611 Reservation in service for SC/ST/OBC,
0612 Equal pay for equal work,
0613 Others,
0614 Medical facilities,
220,
0615 Recruitment/Transfer/Compassionate Appointment,
0616 Minor penalties,
0617 Back wages,
0618 Voluntary Retirement,
0619 Allotment of Accommodation,
0620 Probation & Confirmation,
0621 Temporary Appointments,
0622 Use of forged/false document(s) for securing employment,
07 Academic Matters,
0701 Matters relating to examination,
0702 Introduction/Abolition of languages,
0703 Matters relating to syllabi,
"0704 Matters relating to withholding/cancellation of results, evaluation of",
"marks, expulsion of students.",
0705 Others,
0706 Tuition fee,
0707 Matters relating to management of Educational Institutions,
08 Letter Petition & PIL Matters,
0801 Child labour matters including neglected children,
"0802 Air pollution matters, i.e., Industrial, Vehicular, Power stations etc.",
"0803 Water Pollution: Industrial, domestic, sewage, rivers and sea",
0804 Noise Pollution: Industry & vehicular,
0805 Ecological Imbalance: Protection and conservation of forests,
"throughout the country, protection of wild life, ban on felling of trees",
and falling of underground water level,
0806 Bonded Labour matters,
"0807 Matters relating to custody harassment, jails, complaint of",
"harassment, custodial death, speedy trial, premature release, inaction",
"by police, etc.",
0808 Matters relating to harassment of SC/ST/OBC and women,
0809 Matters relating to unauthorised constructions including,
"encroachments, sealing, demolitions, urban planning",
0810 Matters relating to Election Commissions,
0811 Scam matters,
0812 Others,
0813 Essential Amenities or Services,
0814 Housing,
0815 Natural & Man-made disasters including riots,
0816 SLPs filed against judgments/orders passed by the High Courts in,
Writ Petitions filed as PIL,
221,
0817 Writ Petition (Criminal) & Writ Petition filed as PIL pertaining to,
Criminal investigation/prosecution,
0818 Letter Petition & PIL Matters - Social Justice Matters,
09 Election Matters,
0901 Matters challenging election of President & Vice-President of India,
0902 Elections relating to Gram Panchayats and Zila Parishad,
0903 Matters under Representation of Peoples’ Act involving corrupt,
practices,
0904 Matters relating to re-counting of votes,
0905 Matters under the Cooperative Societies Act,
0906 University election matters,
0907 Delimitation of Constituency,
0908 Others,
0909 Matters challenging Elections of MPs and MLAs,
0910 Elections relating to Municipal Councils,
"0911 Appeals u/s 116A of Representation of People Act, 1951",
0912 Disqualification and expulsion of MPs/MLAs,
"10 Company Law, MRTP, TRAI, SEBI, IDRAI & RBI",
1001 Matters relating to winding up,
1002 Matters relating to Sick Industries,
1003 Matters arising out of orders of Company Law Board under Sections,
"397 & 398 of Companies Act, 1956",
"1004 Reference under Section 7(2) of the MRTP Act, 1969",
"1005 Appeals under Section 55 of the MRTP Act, 1969",
1006 Others,
1007 Matters relating to disinvestment,
1008 Appeals under Section 15Z of the Securities and Exchange Board of,
"India Act, 1992",
1009 Matter filed against the orders of MRTP Commission/Competition,
Commission,
1010 Matters pertaining to TRAI/SEBI/IDRAI and RBI including Appeals,
"u/s 18 of TRAI Act, Indian Electricity Act, 1910 and 2003,",
"Electricity Supply Act, 1948 and Electricity Reforms Commission",
"Act, 1998",
11 Arbitration Matters,
1100 SLPs challenging Arbitration Matters,
1101 Arbitration Petition filed under Section 11 of Arbitration &,
"Conciliation Act, 1996",
222,
12 Compensation Matters,
1201 Motor accident claim matters involving permanent disability/death,
of persons,
1202 Motor accident claim matters relating to other injuries,
1203 Insurer/owners liability matters,
1204 Matters relating to Railway accident including other Railway,
compensation matters,
1205 Matters relating to accidents other than those covered by M.V. Act,
"1206 Matters relating to telephone, electricity etc.",
1207 Others,
13 Habeas Corpus Matters,
14 Criminal Matters,
1401 Matters relating to capital punishment,
1402 Matters relating to maintenance under Section 125 of Cr.P.C.,
"1403 Matters relating to harassment, cruelty to woman for dowry, dowry",
"death, eve-teasing, domestic violence etc.",
"1404 Matters relating to sexual harassment, kidnapping & abduction",
1405 Matters relating to Prevention of Corruption Act,
"1406 Matters relating to Bank scams, cheating, forgery etc.",
1407 Matters relating to Essential Commodities Act,
1408 Criminal matters relating to State Excise Law,
1409 Criminal matters relating to bail/interim bail/ anticipatory bail,
1410 Criminal matters in which sentence awarded is upto five years,
1411 Criminal T.P. under Article 139(A)(2) of the Constitution of India,
1412 Criminal T.P. under section 406 of the Cr.P.C.,
"1413 Criminal matters arising out of Securities Act, 1992",
"1414 Criminal matters relating to Drugs and Cosmetics, NDPS Act",
1415 Criminal matters relating to Food Adulteration,
"1416 Criminal matters relating to preventive detention, TADA/POTA",
national security-COFEPOSA-SAFEMA,
"1417 Matters relating to SC & ST (Prevention of Atrocities) Act, 1989;",
"Untouchability (Offences) Amendment & Misc. Provision Act, 1976",
1418 Others,
1419 Scam matters other than relating to Banks,
1420 Appeals u/s 2 of the Supreme Court (Enlargement of Criminal,
"Appellate Jurisdiction) Act, 1970",
1421 Police atrocities matters,
1422 Matters relating to Foreign Exchange Regulation Act.,
1423 Matters challenging sentence till rising of the court and/or fine only,
223,
1424 Appeals u/s 10 of the Special Courts (Trial of Offences relating to,
"Transactions in Securities) Act, 1992",
1425 Appeals u/s 19 of the Terrorist and Disruptive Activities (Prevention),
"Act, 1987",
1426 Matters filed by State against acquittal,
1427 Matters filed by complainant against acquittal,
1428 Matters under State Police Acts,
1429 Matters for/against quashing of criminal proceedings,
1430 Matters challenging prosecution under Income Tax Act,
1431 Matters challenging Prosecution under Negotiable Instrument Act,
"1432 Criminal matters relating to Central Excise and Salt Act, 1944",
"1433 Criminal matters relating to Customs Act, 1962",
1434 Matters relating to Foreign Exchange Management Act (FEMA),
1435 Criminal Appeals filed against the orders of various Tribunals,
1436 Criminal matters relating to suspension of sentence,
1437 Criminal matters relating to cancellation of bail.,
1438 Criminal matters in which sentence awarded is more than 5 years,
1439 Criminal matters in which sentence awarded is life imprisonment,
15 Appeal against orders of statutory bodies,
1501 Bar Council of India,
1502 Others,
1503 Tribunals,
1504 Appeals and other matters under Sections 30 and 31 of the Armed,
"Forces Tribunal Act, 2007",
1505 Matters filed against the orders of other Regulatory,
Authorities/Bodies,
16 Family Law Matters,
1601 Mutual consent divorce matters,
1602 Other divorce matters,
1603 Restitution of conjugal rights,
1604 Child custody matters,
1605 Adoption & maintenance matters,
1606 Minority & guardianship matters,
1607 Matters under Hindu Marriage Act,
1608 Matters under Muslim Marriage Act,
1609 Matters under Christian Marriage Act,
1610 Alimony,
1611 Others,
224,
17 Contempt of Court Matters,
1701 Suo motu civil contempt matters,
1702 Suo motu criminal contempt matters,
1703 Other civil contempt matters,
1704 Other criminal contempt matters,
"1705 Appeal u/s 19(1)(b) of the Contempt of Courts Act, 1971",
18 Ordinary Civil Matters,
1801 T.P. under Article 139A(1) of the Constitution of India,
1802 T.P. under Section 25 of the C.P.C.,
"1803 Civil matters arising out of the Securities Act, 1992",
1804 Original Civil Suit under Article 131 of the Constitution of India,
1805 Matters relating to specific performance of contract,
"1806 Matters relating to allotment, cancellation, fixation of prices of",
plots/flats,
1807 Others,
1808 Market fee under APMC Act,
1809 Matters relating to Lotteries,
1810 Dealership & distributorship of petroleum products,
1811 Benami transactions,
1812 Royalty of coal etc.,
1813 Stage carriage permits,
1814 Freedom Fighters’ pension,
1815 Matters relating to Electricity Dispute (connection/disconnection,
etc.),
1816 Appeals u/s 10 of the Special Courts (Trial of Offences relating to,
"Transactions in Securities) Act, 1992",
1817 Matters for eviction/dispossession other than Rent Control Act,
matters,
"1818 Appeals u/s 53T of the Competition Act, 2002",
1819 Matters relating to demolition,
19 Three Judges Bench Matter,
20 Five Judges Bench Matter,
21 Eleven Judges Bench Matter,
22 Seven Judges Bench Matter,
23 Nine Judges Bench Matter,
24 Appointments etc. of Constitutional Functionaries,
2401 Appointment of High Courts Judges,
2402 Deleted,
225,
2403 Appointment of Advocate General & Attorney General,
2404 Appointment of members of Election Commissions,
2405 Appointment of Members and Chairman of State Public,
Commission and UPSC,
2406 Appointment of Governors & Lt. Governors,
2407 Others,
25 Statutory Appointments and Appointment of other Law,
Officers,
"2501 Appointment of Members, Vice-Chairman, Chairman of CAT, SAT,",
"other Tribunals, Statutory Corporations/Bodies",
2502 Appointment in Zila Parishad,
2503 Appointment of Vice-Chancellors of University,
2504 Appointment of other Law Officers,
26 Personal Law Matters,
2601 Matters Relating to Inheritance & Succession,
2602 Matters relating to Gift,
2603 Matters relating to Partition,
2604 Matters relating to testamentary succession,
2605 Others,
27 Religious & Charitable Endowments,
"2701 Matters relating to management, administrative disputes of Temples",
"etc. (Priest, Pujari & Mahant)",
2702 Wakf Board matters,
2703 Others,
"28 Mercantile Laws, Commercial Transactions Including",
Banking,
2801 Partnership,
2802 Sale of Goods Act,
2803 Contract Act,
2804 Trade Marks/Copy Rights/Patents/Design Act,
2805 Negotiable Instrument Act,
2806 Banks mortgage disputes,
"2807 Hypothecation, Pledge",
2808 Others,
2809 Matters relating to recovery of debts/bank loans due under the Banks,
and financial institutions,
2810 Bank Guarantee Matters,
226,
2811 Matters relating to Securitisation and Reconstruction of Financial,
"Assets and reinforcement of Security Interest Act, 2002",
29 Simple Money & Mortgage Matters Etc.,
2901 Money Lending Act,
2902 Mortgage Private,
2903 Others,
30 Matters Relating to Judiciary,
3001 Matters pertaining to Judicial Officers,
3002 Matters pertaining to Employees of Supreme Court and High Courts,
3003 Matters pertaining to Employees of District Courts and Tribunals,
"3004 Matters pertaining to service conditions, etc., of individual Judicial",
Officer and other matters not specified above.,
31 Admissions to Educational Institutions other than Medical &,
Engineering,
32 Establishment and Recognition of Educational Institutions,
33 Eviction under the Public Premises (Eviction) Act,
3301 Delhi Development Authority (DDA),
3302 Municipal Corporation of Delhi (MCD),
3303 Govt. of NCT of Delhi,
3304 Union of India,
3305 New Delhi Municipal Council (NDMC),
3306 Other States/Union Territories,
3307 Others,
"34 Mines, Minerals and Mining Leases",
35 Land Laws and Agricultural Tenancies,
3501 Matters relating to sale/transfer of land by SC/ST,
3502 Matters relating to agricultural land ceiling,
3503 Matters relating to urban land ceiling,
3504 Pre-emption matters,
3505 Others,
36 Admiralty and Maritime Laws,
37 Matters relating to Commissions of Enquiry,
227,
38 Matters relating to Consumer Protection,
"3801 Appeals u/s 23 of the Consumer Protection Act, 1986",
3802 SLPs relating to Consumer Protection,
3803 Others,
39 Matters pertaining to Armed Forces & Paramilitary,
Forces,
40 Admission/Transfer to Engineering and Medical Colleges,
4001 Medical Admission Matters,
4002 Engineering Admission Matters,
4003 Others,
41 Allocation of 15% All India Quota in Admission/Transfer to,
Medical Colleges,
"42 Matters relating to Leases, Govt. Contracts & Contracts by",
Local Bodies,
4201 Tenders invited or contracts awarded/leases granted or determined,
by Central Government.,
4202 Tenders invited or contracts awarded/leases granted or determined,
by Public Sector Undertaking,
4203 Tenders invited or contracts awarded/leases granted or determined,
by State Government/Union Territories,
4204 Tenders invited or contracts awarded/leases granted or determined,
by local bodies,
4205 Others,
"43 State Excise-Trading in Liquor-Privileges, Licences-Distilleries",
Breweries,
44 Reference under Article 143 of the Constitution of India,
45 Reference under Article 317(1) of the Constitution of India,
"46 Reference under Section 11 of the Competition Act, 2002",
"47 4700 Reference under Section 14 of the Right to Information Act, 2005",
"4701 Reference under Section 17 of the Right to Information Act, 2005",
8888 Defective matter as not re-filed,
228,
FOURTH SCHEDULE,
FORMS,
NO. 1,
APPLICATION FOR THE REGISTRATION OF A CLERK,
"(S.C.R., Order IV Rule 13)",
IN THE SUPREME COURT OF INDIA,
1. Name of advocate/firm of advocates on whose behalf the clerk is to be registered.,
2. Particulars of the clerk to be registered:,
(i) Full name (In capitals):,
(ii) Father’s name:,
(iii) Age and date of birth:,
(iv) Place of birth and nationality:,
(v) Educational qualifications:,
"(vi) Particulars of previous employment, if any:",
"I, …………………. (clerk above-named), do hereby affirm that the particulars relating to",
me given above are true.,
…………………………,
(Signature of Clerk),
"3. Whether the advocate/firm of advocates has a clerk already registered in his/its employ,",
and whether the clerk sought to be registered is in lieu of or in addition to the clerk,
already registered.,
4. Whether the clerk sought to be registered is already registered as a clerk of any other,
"advocate and if so, the name of such other advocate.",
"I, ………… (advocate) certify that the particulars given above are true to the best of my",
information and belief and that I am not aware of any facts which would render undesirable the,
registration of the said ………………(name) as a clerk.,
……………………..,
(Signature of advocate/partner of firm of advocates),
Dated:………….,
To,
"The Registrar,",
Supreme Court,
----------------------,
NO. 2,
FORM OF SUMMONS FOR AN ORDER IN CHAMBERS,
"(S.C.R., Order V)",
IN THE SUPREME COURT OF INDIA,
[Appellate Jurisdiction],
……………………….,
229,
[Original Jurisdiction],
Appeal,
Case No…………………..of 20……,
[A.B.] [Appellant],
……………… …………….,
[State of A.B.] [Plaintiff],
Vs.,
[C.D.] [Respondent],
……………… …………….,
[State of C.D] [Defendant],
Let all parties concerned attend before …….. in Chambers at the Court House (New,
"Delhi) on the ……. day of …., 20 ……… at ………. o’clock in the forenoon on the hearing of",
"an application on the part of the above-named plaintiff (or appellant, defendant, respondent as",
the case may be) for an order that (here state the precise object of the application).,
Dated this the ……day of ………….20 ………..,
(Take notice that this summons will be attended by counsel for the applicant),
(Signed)……………………..,
Advocate on record for the plaintiff,
This summons was taken out by ………. Advocate on record for the plaintiff.,
To,
………………………………………,
Advocate on record for the defendant.,
__________,
NO. 3,
NOTICE OF APPEAL FROM REGISTRAR,
"(S.C.R., Order V Rule 3)",
IN THE SUPREME COURT OF INDIA,
[Appellate Jurisdiction],
…………………………,
[Original Jurisdiction],
Appeal .,
Case No…………… of 20 …………..,
230,
[A.B.] [Appellant],
……………… …………….,
[State of A.B.] [Plaintiff],
Vs.,
[C.D.] [Respondent],
……………… …………….,
[State of C.D] [Defendant],
"Take notice that the above-named plaintiff (or appellant, respondent, defendant as the",
"case may be) intends to appeal against the decision of the Registrar, given on the ……day of",
……… (ordering or refusing to order) that,
And further take notice that you are required to attend before the Judge in Chambers at,
the Court House (New Delhi) on the ………day of ……….. 20….. at ….. o’clock in the,
"forenoon on the hearing of an application by the said plaintiff (or appellant, respondent,",
defendant as the case may be) for an order that (here state the order sought to be obtained).,
Signed………………..,
Advocate on record for the plaintiff,
To,
Advocate on record for the defendant,
___________,
NO. 4,
NOTICE OF MOTION,
"(S.C.R., Order XI Rule 2)",
IN THE SUPREME COURT OF INDIA,
[Appellate Jurisdiction],
……………………,
[Original Jurisdiction],
Civil/Criminal Misc. Petition No………..of 20……….,
[Appeal],
……………………..,
Case No. of 20……….,
[A.B.] [Petitioner],
……………… …………….,
[Appellant],
[State of A.B.] [Plaintiff],
231,
Vs.,
[C.D.] [Respondent],
……………… …………….,
[State of C.D] [Defendant],
Take notice that the Court will be moved on the ……..day of ………20……… at 10:30,
"o’clock in the forenoon, or so soon thereafter as counsel can be heard, by Mr.",
"……………….counsel for the above-named plaintiff (or defendant, petitioner, appellant,",
"respondent as the case may be), that (or for an order that, or for) (here state the precise object of",
the motion).,
A copy of the application is enclosed herewith.,
Take further notice that meanwhile this Court has been pleased to pass the following,
"order, (here quote the interim order of the Court).",
Dated this the ………….day of …………..20………..,
………………….,
Advocate on record,
for the Petitioner/Appellant/Plaintiff.,
Address:……………………..,
To,
Advocate on record for the,
Opposite party/respondent/defendant,
__________,
NO. 5,
FORM OF OATH BY TRANSLATOR,
"(S.C.R., Order VIII Rule 4)",
IN THE SUPREME COURT OF INDIA,
"In the matter of ……………………, a translator.",
"I, ………………., solemnly affirm and say that I will translate correctly and",
accurately all documents given to me for translations.,
Dated this the ………… day of ……….. 20………..,
Before me.,
…………….,
Registrar,
__________,
232,
NO. 6,
APPLICATION FOR PRODUCTION OF RECORD,
"(S.C.R., Order X Rule 1)",
IN THE SUPREME COURT OF INDIA,
[Appellate Jurisdiction],
………………………,
[Original Jurisdiction],
Appeal,
Case No…………………of 20…………..,
[A.B.] [Appellant],
……………… …………….,
[State of A.B.] [Plaintiff],
Vs.,
[C.D.] [Respondent],
……………… …………….,
[State of C.D] [Defendant],
To,
"The Registrar,",
Supreme Court of India,
"Sir,",
Please produce the records of the within mentioned case before……… no. (here,
insert the number and title of the case of which the records are required.),
Dated this the ………..day of ……….20 …………….,
(Signature),
__________,
NO. 7,
NOTICE TO THE RESPONDENT OF LODGMENT OF PETITION OF APPEAL,
"(S.C.R., Order XIX Rule 8)",
IN THE SUPREME COURT OF INDIA,
Civil Appellate Jurisdiction,
Civil Appeal No……… of 20……………,
(Appeal from the judgment and decree/order of the High Court of judicature at,
………….(full particulars to be given………),
233,
(A.B.) (Appellant),
Vs.,
(C.D.) (Respondent),
To,
Through Shri……….,
Advocate-on-record,
"Supreme Court of India,",
New Delhi.,
OR,
(give the address of the respondent if no appearance of an advocate-on-record has been entered).,
TAKE NOTICE that the Appellant above-named has on ……….. filed in the Registry of,
the Supreme Court a petition of appeal (copy enclosed) from the judgment and decree/order of,
the High Court of Judicature at …………and the said petition has been registered in Supreme,
Court as Civil Appeal No. ………of ……..20………….,
Notice is hereby given to you that if you wish to contest the appeal you may appear,
within thirty days of the receipt of this notice before this Court either personally or by an,
"advocate-on-record of the Court appointed by you in that behalf, and take such part in the",
proceeding as you may be advised.,
Take further notice that in default of your appearance within the time prescribed the,
appeal will be proceeded with and determined in your absence and no further notice in relation,
thereto shall be given to you.,
Dated this the…………day of ………….20…….,
…………………..,
Assistant Registrar,
Address for service on the Appellant:,
"(If the appeal has been filed through an advocate-on-record, the address of the advocate-on-",
record should be given.,
OR,
If the party is appearing in person then a local address should be given).,
NOTE:--,
Where the record of the appeal is required to be prepared under the supervision of,
the Registrar of the Court appealed from the notice shall also state this fact and shall in,
"relation to the preparation of the record, also require the respondent to take steps before",
"the Court appealed from (vide rule 11 of Order XIX of the Supreme Court Rules, 2013).",
__________,
234,
NO. 8,
MEMORANDUM OF APPEARANCE IN PERSON,
"(S.C.R., Order XIX Rule 9)",
IN THE SUPREME COURT OF INDIA,
[Appellate Jurisdiction],
Appeal No……………..of 20…………..,
[A.B.] [Appellant],
Vs.,
[C.D.] [Respondent],
To,
"The Registrar,",
Please enter my/our appearance for the respondent above-named in this appeal.,
Dated this the …………day of ………..20………..,
(Signature)……………..,
Address for Service.,
__________,
NO. 9,
MEMORANDUM OF APPEARANCE THROUGH ADVOCATE-ON-RECORD,
"(S.C.R., Order XIX Rule 9)",
IN THE SUPREME COURT OF INDIA,
[Appellate Jurisdiction],
………………………..,
[Original Jurisdiction],
Appeal No………….of 20……………,
Case,
[A.B.] [Appellant],
……………… …………….,
[State of A.B.] [Plaintiff],
Vs.,
[C.D.] [Respondent],
……………… …………….,
[State of C.D] [Defendant],
To,
"The Registrar,",
235,
Please enter an appearance for the above-named Respondent (or the defendant) in this,
appeal/case.,
Dated this the………..day of ……….20……………,
(Signed)……………………………....,
Advocate on record for the Respondent.,
__________,
NO. 10,
CERTIFICATE TO THE ADVOCATE APPOINTED AT THE COST OF THE STATE,
"[S.C.R., Order XX Rule 16 and Order XXII Rule 7(3)]",
IN THE SUPREME COURT OF INDIA,
Criminal Appellate Jurisdiction,
Petition for Special leave to Appeal (Criminal) No………..of ……….20……..,
Criminal Appeal No……………of 20…………….,
A.B. Petitioner(s)/Appellant(s),
Vs.,
The State of Respondent(s),
CERTIFICATE,
Certified that Shri…………Advocate was engaged at the cost of the State in,
above Petition/Appeal which was heard on ………..and that Rs………only [Rupees (in,
words)………..only] are payable to him as his fees by the State of ………………,
……………………………….,
Registrar/Additional Registrar,
Note:- Strike out whichever is not applicable.,
__________,
NO. 11,
NOTICE TO RESPONDENT OF LODGING OF APPEAL,
"(S.C.R., Order XX Rule 5)",
IN THE SUPREME COURT OF INDIA,
(Appellate Jurisdiction),
Criminal Appeal No………….of 20………….,
[Appeal from the judgment (order sentence or decision) of the High Court of,
Judicature at………….Court or Tribunal],
236,
[A.B.] [Appellant],
Vs.,
[The State] [Respondent],
To,
The Attorney-General for India and /or,
_______________________________,
The Advocate-General concerned,
"Take notice that an appeal from the judgment (order, sentence or decision) of the High",
"Court of judicature at ………………..of the court, in case No………….dated the ………(here",
"give number of Case in High Court, or Judicial Commissioner’s Court) was presented by the",
above-named appellant on the ……………..day of …….20……. and has been registered in this,
Court as Criminal Appeal No……..of………….20…………..,
Dated this the ……….day of …………20……….,
………………,
Registrar,
___________,
NO. 12,
SUMMONS FOR DISPOSAL OF SUIT,
"(S.C.R., Order XXVII Rule 1)",
IN THE SUPREME COURT OF INDIA,
(Original Jurisdiction),
Case No. ……….of………….20……….,
[State of A.B.] [Plaintiff],
Vs.,
[C.D.] [Defendant],
To,
WHEREAS the above-named plaintiff has instituted a suit in the Court against you,
claiming……….you are hereby required to cause an appearance to be entered for you in the,
"Registry of the Court within twenty-eight days from the service upon you of this summons,",
exclusive of the day of such service; and you are summoned to appear before this Court by an,
Advocate on record of the Court to answer the plaintiff’s claim on the day the case is set down,
237,
for hearing upon which date you must be prepared to produce all your witnesses and all,
documents in your possession or power upon which you intend to rely in support of your case.,
And you are hereby required to take notice that in default of your causing an appearance,
"to be so entered, the suit will be liable to be heard and determined in your absence.",
"Witness……………………….. Chief Justice of India, at the Supreme Court, New Delhi.",
The……..day of ……………in the year two thousand and ……………,
Advocate on record,
"At the Supreme Court, New Delhi",
Address:………………………………………………..,
………………,
Registrar,
__________,
NO. 13,
NOTICE OF APPEARANCE,
"(S.C.R., Order XXVII Rule 7)",
IN THE SUPREME COURT OF INDIA,
(Original Jurisdiction),
Case No. ……….of………….20……….,
[State of A.B.] [Plaintiff],
Vs.,
[State of C.D.] [Defendant],
To,
(The plaintiff or his Advocate on record),
Take notice that appearance has been entered for the above-named defendant in this case.,
Dated this the ……………..day of……….20………………,
(Signed)………………,
Advocate on record for the defendant,
__________,
NO. 14,
SUMMONS FOR DIRECTIONS,
"(S.C.R., Order XXVII Rule 8)",
IN THE SUPREME COURT OF INDIA,
(Original Jurisdiction),
Case No. ……….of………….20……….,
238,
[State of A.B.] [Plaintiff],
Vs.,
[State of C.D.] [Defendant],
"Let all parties concerned attend, …………….in Chambers at the Court House",
"(New Delhi) on the ……….day of ……….20……….., at …….. o’clock in the forenoon",
on the hearing of an application by the plaintiff for directions in this action as follows:-,
"(The applicant should specifically state what he applies for, and strike out what he does",
not apply for.),
(Here state the direction required as thus:,
That the plaintiff may be at liberty to amend,
his statement of claim by (State amendments,
proposed); and generally as he may be advised),
Pleadings,
Particulars,
Admission of document and facts,
Discovery,
Interrogatories,
Inspection and production of documents,
Inspection of real or personal property,
Commissions,
Examination of witnesses,
Place of trial,
Mode of trial,
Dated this the ………………day of ……..20…………,
……………,
Registrar,
This summons was taken out by,
Advocate-on-record for the plaintiff.,
To…………………………,
Advocate-on-record for the defendant.,
__________,
NO. 15,
NOTICE OF PAYMENT OF MONEY INTO COURT,
"(S.C.R., Order XXXVI)",
IN THE SUPREME COURT OF INDIA,
(Original Jurisdiction),
Case No. ……….of………….20……….,
239,
[State of A.B.] [Plaintiff],
Vs.,
[State of C.D.] [Defendant],
Take notice that the defendant has paid into Court Rs. …………… and say that (Rs.,
……. Part of) that sum is enough to satisfy the plaintiff’s claim (for ……… and Rs. ………. the,
other part of that sum is enough to satisfy the plaintiff’s claim for ………..) and admits (but,
denies) liability therefor.,
Dated this the ………….day of ………….20............,
(Signed)…………………….,
Advocate-on-record for the defendant,
Address………………………………,
……………………………………….,
To,
……………………….,
Advocate-on-record for the plaintiff,
__________,
NO. 16,
ACCEPTANCE OF SUM PAID INTO COURT,
"(S.C.R., Order XXXVI)",
IN THE SUPREME COURT OF INDIA,
(Original Jurisdiction),
Case No. ……….of 20……….,
[State of A.B.] [Plaintiff],
Vs.,
[State of C.D.] [Defendant],
The Plaintiff accepts the sum of Rs. ……………… paid by the defendant into Court in,
satisfaction of the claim in respect of which it was paid in (and abandons his other claims in this,
action).,
Dated this the …………. day of ………………20 ……,
(Signed)……………………….,
Advocate-on-record for the Plaintiff,
240,
Address……………………………,
To,
………………………………,
"Advocate-on-record for the defendant,",
Address……………………………..,
_________,
NO. 17,
NOTICE TO THE ATTORNEY-GENERAL FOR INDIA OF REFERENCE UNDER,
ARTICLE 143 OF THE CONSTITUTION OF INDIA,
"(S.C.R., Order XLII)",
IN THE SUPREME COURT OF INDIA,
Reference No. ……….of 20……….,
In the matter of a Reference under Article 143 of the Constitution of India,
To,
The Attorney-General for India.,
"WHEREAS under Article 143 of the Constitution of India, the President has referred the",
following question(s) of law (or fact) for consideration and report to this Court:--,
(Here set out the question or questions referred),
Take notice that you are hereby required to appear before this Court on the …………day,
"of …………20……, at ……… o’clock in the forenoon to take the directions of the Court in the",
matter.,
"Witness ……., Chief Justice of India, the ……….day of …….in the year two thousand",
and ……………,
…………………..,
Registrar,
__________,
NO. 18,
NOTICE TO PARTIES OF REFERENCE UNDER ARTICLE 143 OF THE,
CONSTITUTION OF INDIA,
"(S.C.R., Order XLII)",
IN THE SUPREME COURT OF INDIA,
Reference No. ……….of 20……….,
In the matter of (here state the subject matter under reference),
241,
and,
In the matter of a Reference under article 143 of the Constitution of India.,
To,
………………..,
(Name of parties),
"WHEREAS under article 143 of the Constitution of India, the President has referred the",
following question(s) of law (or fact) for consideration and report to this Court:--,
(Here set out the question or questions referred.),
Take notice that you are hereby required if you desire to be heard to cause an appearance,
"to be entered for you in the Registry of this Court on or before the ………..day of ……….20….,",
and to attend on the said day at ……….o’clock in the forenoon before the Court by an advocate,
of the Court to take the directions of the Court with respect to the statements of facts and,
arguments and with respect to the date of the hearing.,
"Witness……………., Chief Justice of India, the ……….day of ………..in the year two",
thousand and …………….,
……………,
Registrar,
__________,
NO. 19,
SUMMONS TO ATTEND TAXATION,
"(S.C.R., Order L, Rule11)",
IN THE SUPREME COURT OF INDIA,
[Appellate Jurisdiction],
………………………..,
[Original Jurisdiction],
Appeal No…………….of 20…………..,
Case,
[A.B.] [Appellant],
……………… …………….,
[State of A.B.] [Plaintiff],
Vs.,
[C.D.] [Respondent],
……………… …………….,
242,
[State of C.D] [Defendant],
Bill No. ………..of 20……(Here state the names of the parties to the bill.),
"WHEREAS Mr. E.F., advocate-on-record for the appellant (or as the case may be) has",
lodged a bill of costs (copy appended hereto) for taxation as between [party and party and also as,
"between] advocate-on-record and client, notice is hereby given that the Taxing Officer of the",
Court will proceed to tax the said bill on the ……….day of ……….20……..at ………..o’clock,
in the forenoon (afternoon) when you may attend the Taxing Officer in his Chambers at the Court,
House and contest the said bill or any items therein.,
Dated this the ………….day of ………..20…,
…………………………..,
Taxing Officer,
__________,
NO. 20,
AFFIDAVIT OF SERVICE OF SUMMONS,
"(S.C.R., Order LIII, Rule 5)",
IN THE SUPREME COURT OF INDIA,
[Original Jurisdiction],
Appeal No…………of 20………,
Case,
[A.B.] [Appellant],
……………… …………….,
[State of A.B.] [Plaintiff],
Vs.,
[C.D.] [Respondent],
……………… …………….,
[State of C.D] [Defendant],
"I, ………………of ……………Advocate-on-record for the above named…………..,",
make oath/solemnly affirm and say as follows:-,
"I, did on the ………day of ……..20…….., serve Mr. …………advocate-on-record for",
the above named…………in this action (or appeal) with a true copy of the summons now,
"produced and shown to me marked A, by leaving it before four o’clock in the afternoon at the",
(office or dwelling house) of the said……………situate………….. being the address for service,
243,
in this action (or appeal) (with his clerk or his servant or as may be there) of by post-envelope,
"addressed to the said……….at………, being the address for service in this action (or appeal).",
Sworn at …………..this …….day of ……………20…..,
Before me.,
This affidavit is filed on behalf of the,
__________,
NO. 21,
AFFIDAVIT OF SERVICE BY POST,
"(S.C.R., Order LIII, Rule 5)",
IN THE SUPREME COURT OF INDIA,
[Appellate Jurisdiction],
……………………………,
[Original Jurisdiction],
Appeal No………of 20………..,
Case,
[A.B.] [Appellant],
……………… …………….,
[State of A.B.] [Plaintiff],
Vs.,
[C.D.] [Respondent],
……………… …………….,
[State of C.D] [Defendant],
"I, …………..of …………Advocate-on-record for the above named……………., make",
oath/solemnly affirm and say as follows:--,
I did serve the advocate-on-record for the above-named…………….in this,
action (or appeal) (or the above-named……………if he has appeared in person),
with the summons (or notice or other documents) now produced and shown to,
"me marked A, by posting it on the ……….day of ……………20………..at",
(name of post office) a true copy of the said summons (or as may be) in a pre-,
paid envelope registered for acknowledgment addressed to the said advocate on,
"record (or respondent or as may be) at …………….., which is his address for",
service.,
244,
The postal acknowledgment is attached hereto.,
Sworn at………..this……….day of ………….20………….,
Before me.,
This affidavit is filed on behalf of the,
__________,
NO. 22,
CERTIFICATE OF TAXATION,
"(S.C.R., Order L)",
IN THE SUPREME COURT OF INDIA,
[Appellate Jurisdiction],
[Original Jurisdiction],
Appeal No………of 20………..,
Case,
[A.B.] [Appellant],
……………… …………….,
[State of A.B.] [Plaintiff],
Vs.,
[C.D.] [Respondent],
……………… …………….,
[State of C.D] [Defendant],
"Bill No…….of 20………,………..(Here state the name of the parties to the bill)",
"I do hereby certify that I have taxed the above bill of costs, lodged in this Court by Mr.",
"E.F., Advocate on record for appellant (or as the case may be) and do allow, as between party and",
party the sum of (amount in figures and words).,
Dated this the …………day of…………..20……….,
……………..,
Taxing Officer,
__________,
245,
NO. 23,
NOTICE FOR PROCEEDINGS TO ATTORNEY-GENERAL FOR INDIA,
OR ADVOCATE-GENERAL OF A STATE,
"(S.C.R., Order LI Rule 1)",
IN THE SUPREME COURT OF INDIA,
[Appellate Jurisdiction],
………………………,
[Original Jurisdiction],
Appeal No………of 20………..,
Case,
[A.B.] [Appellant],
……………… …………….,
[State of A.B.] [Plaintiff],
Vs.,
[C.D.] [Respondent],
……………… …………….,
[State of C.D] [Defendant],
To,
The Attorney-General for India,
or,
Advocate-General of a State,
Take notice that the above-named appeal/case has been filed in this Court [and is fixed,
"for hearing on the ………..day of………20………, and shall be taken up for hearing by the",
"Court on that day, at ……….. o’clock in the forenoon or so soon thereafter as may be convenient",
to the Court][and shall be fixed for hearing on a suitable date of which due notice will be given,
to you.],
As the appeal/case raises [an] important question[s][here state briefly the question(s),
involved] notice is hereby given to you so that you may appear and take such part in the,
proceedings before this Court as you may be advised.,
Dated this the ………..day of ………….20……….,
………………,
Registrar,
__________,
246,
NO. 24,
WRIT OF COMMISSION,
"(S.C.R., Order LIV)",
IN THE SUPREME COURT OF INDIA,
[Original Jurisdiction],
Case No…………..of 20………,
[State of A.B.] [Plaintiff],
Vs.,
[State of C.D.] [Defendant],
To,
The Commissioner appointed to examine the undermentioned witnesses on behalf of,
"I, ……………….., hereby appoint you and give you full power and authority to swear or",
affirm and diligently to examine on ………interrogatories and viva voce………..as shall be,
produced before you as …………..witness(es) ………on behalf of the said …………..in a,
certain Case No…………….of………..now pending in the Supreme Court (wherein) and I,
further command you that you do at certain days and places to be appointed by you for that,
purpose of which reasonable notice shall be given to all parties cause the said witness(es) to,
come before you and then and there examine and cross examine such witness(es) either upon,
oath or solemn affirmation which we hereby give you full power and authority to administer to,
"such witness(es) in the form firstly specified at the foot hereof, and that you do take such",
examination and reduce the same into writing on paper; and when you shall have so taken the,
same you are to send the same before the (returnable date as given in the order for the issue of,
this commission) to the Registrar of the said Supreme Court closed up under your Seal together,
with such documents as shall be spoken to and marked exhibits and this writ.,
"And I further empower you to appoint if necessary, a competent interpreter to interpret",
such of the proceedings under this commission as you may deem necessary to have interpreted,
from or into the English language. And I further command you that the interpreter employed in,
"interpreting the depositions of the said witness(es) to be examined by virtue of this writ shall,",
"before he be permitted to act as such interpreter as aforesaid, take the oath or affirmation lastly",
specified at the foot hereof which I hereby give you power and authority to administer to such,
interpreter. And I do lastly order that parties to this suit do appear before you in person or by,
their pleaders.,
"Witnesses…………, Chief Justice of India at the Supreme Court, New Delhi, the",
…….day of ………in the year two thousand and …………… Advocate-on-record for ……..,
(Names of witnesses to be examined),
…………………,
247,
Registrar,
NOTE 1- The Commissioner shall not be bound to execute this commission unless such a,
sum as he thinks reasonable be deposited with him for the expenses of executing the same and,
also of summoning the witnesses and defraying their travelling and other expenses.,
NOTE 2- After the deposition of any witness has been taken down and before it is signed,
"by him, it shall be distinctly read over, and, where necessary, translated to the witness in order",
that mistakes or omissions may be rectified or supplied. The deposition shall be signed by the,
witness and left with the Commissioner who shall subscribe his name and date of the,
examination.,
Form of the oath or affirmation to be administered to the witness,
I swear in the presence of Almighty God (or solemnly affirm) that the evidence,
"which I shall give in this case shall be true, that I will conceal nothing, and that no part of",
my evidence shall be false.,
So help me God.,
Form of the oath or affirmation to be administered to the interpreter,
I swear in the presence of Almighty God (or solemnly affirm) that I understand and speak,
"the ……………and English language, and that I will well and truly and faithfully interpret,",
"translate and explain to the witness to be produced before the Commissioner, all questions and",
answers and all such matters as the Commissioner may require me to interpret and explain.,
So help me God.,
N.B. The Words “so help me God” are to be omitted when an affirmation is administered.,
The execution of this commission appears by the Schedule hereunto annexed.,
__________,
NO. 25,
FORM OF LODGMENT SCHEDULE,
IN THE SUPREME COURT OF INDIA,
Suit/Appeal/Petition No. ……..of………..,
…………………. Plaintiff(s)/Appellant(s)/Petitioner(s),
Vs.,
………………… Defendant(s)/Respondent(s),
Date of Order Amount Party on whose behalf and Remarks,
the purpose for which the,
payment is made,
248,
Dated……….,
Issue Challan,
Time for payment till………………,
……………………… ………………,
(Signature) (Signature),
Advocate or party making the Payment Registrar,
__________,
NO. 26,
IN THE SUPREME COURT OF INDIA,
REVENUE DEPOSITS,
FORM T.R. 61,
DEPOSIT REPAYMENT ORDER AND VOUCHER,
(See rule 629 of the Treasury Rules),
To,
The Pay & Accounts Officer,
Supreme Court of India,
NEW DELHI – 110201.,
………………………….,
K-Deposits-and-Advances-(B) Deposits-not-bearing-interest-843-Civil,
Deposits-Civil Courts-Deposits-Criminal Courts-Deposits-Supreme Court,
"Original Number Name of Depositor: Registrar, Supreme Court of India,",
of the Challan: New Delhi on behalf of the appellant in,
Date of Deposit. Amount originally deposited: Rs……………,
(Rupees………………………………….....),
Examined & Entered Received this………day of ………20…….the,
sum of Rupees………………………………),
Dated………….. ………………………………………………,
(Pay & Accounts Officer) being the amount payable on account of …………,
……….out of the said deposit as per orders of the,
Supreme Court dated………….made in Civil Misc.,
Petition No. …………..of 20……in………………,
Pay Rupees……………..,
249,
CLAIMANT’S SIGNATURE,
…………………………….,
Pay & Accounts Officer,
Passed for payment to ……..…………………,
Dated………………. ……………………………………………,
for Rupees………..(Rupees…………..) as,
per order of the Supreme Court dated………,
in Civil Misc. Petition No. ……….of 20…,
in New Delhi.,
Dated: DEPUTY REGISTRAR/ADDL.REGISTRAR (ADMN.),
SUPREME COURT OF INDIA,
Encl: Original Challan,
(Under Rupees………),
__________,
NO. 27,
FORM OF BANK GUARANTEE,
In the matter of: ……………….,
Civil Appeal/Petition/C.M.P. ……………(here give the number of Cause/matter/appeal).,
And,
In the matter of : ……………,
…………….. (Give the name of the parties).,
Whereas ………………(Here give the name of the party obtaining the order)……………,
above-named has filed an Appeal in the Supreme Court against the Judgment and decree/order of,
the ……………(here describe the Court and the number of the cause)…………..,
And whereas on a motion made for the purpose on the ………(here give the date) the,
Supreme Court of India has in the aforesaid proceedings been pleased to order inter alia as,
follows:,
(Here quote the relevant terms of the order).,
And whereas (here give the name of the party concerned)……………..the respondent (or,
"appellant, as the case may be) ..……….has requested us…………(here give the name of the",
Bank) having its registered office at ………..(here give the registered address of the place of,
business of the Bank) to guarantee the due payment of the said sum of Rs. ……..(here give the,
amount) by the said ……….(here give the name of the Party) in the event of the Supreme Court,
allowing/modifying/dismissing the said appeal and setting aside the decree or such other lesser,
amount as the Court may order. We ……….(here give the name of the Bank) are hereby held,
250,
firmly bound unto the Supreme Court of India through the Registrar of the said Court for the,
payment to it or to the …………(here give the name of the party concerned) ………on demand,
and without demur of the said sum……. (here give the amount) or such other lesser amount as,
may be ordered by the Supreme Court and require to be paid or refunded by the ……….(here,
"give the name of the party concerned, to the ……….(here give the name of the party to whom",
the amount is to be paid) as a result of the final disposal of the said ………(here indicate the,
"appeal, cause or matter) and the guarantee herein contained shall not be affected by any change",
in the constitution of the Bank and it is HEREBY agreed by and between the parties that this,
guarantee shall remain in full force and virtue till the disposal of the ….(here give the number of,
"the case, appeal, cause or matter) to which the aforesaid order of the Court relates and until an",
order of the Supreme Court is made discharging this guarantee.,
IN WITNESS WHEREOF we the …………..(here give the name of the Bank) has executed this.,
This the ……………day of ……….20…………,
Signed,
For the …………,
(here give the name of the Agent of the Bank),
Witness:…………….,
__________,
NO. 28,
IN THE SUPREME COURT OF INDIA,
"[S.C.R., Order XXI Rule 3(1)(a)]",
CIVIL APPELLATE JURISDICTION,
SPECIAL LEAVE PETITION,
(Under Article 136 of the Constitution of India),
S.L.P. (Civil) No………….of ………….,
BETWEEN Position of Parties In this Court,
In the Court/Tribunal from,
whose order the petition,
arises,
(A) Here insert the name/names Petitioner/ Petitioner,
of the Petitioner Respondent/,
Appellant,
(B),
(C),
251,
AND,
(D) Here insert the name/names Petitioner/ Respondent,
of Respondent Respondent/,
Appellant,
(E),
(F),
To,
Hon’ble the Chief Justice of India and His Companion Judges of the Supreme Court of,
India.,
The Special leave Petition of the Petitioner most respectfully showeth:,
1. The petitioner/petitioners above named respectfully submit(s) this petition seeking,
special leave to appeal against the judgment/order of (Here specify the Court/Tribunal,
"against whose order the leave to appeal is sought for together with number of the case,",
date of the order and nature of the order such as allowing or dismissing the matter or,
"granting or refusing the interim order, etc.)",
2. QUESTIONS OF LAW:,
The following questions of the law arise for consideration by this Hon’ble Court:,
(Here set out the questions of law arising for consideration precisely),
3. DECLARATION IN TERMS OF RULE 3(2):,
The petitioner states that no other petition seeking leave to appeal has been filed by him,
against the impugned judgment and order.,
4. DECLARATION IN TERMS OF RULE 5:,
The Annexures produced alongwith the SLP are true copies of the pleadings/documents,
which formed part of the records of the case in the Court/Tribunal below against whose,
order the leave to appeal is sought for in this petition.,
5. GROUNDS:,
Leave to appeal is sought for on the following grounds.,
(Here specify the grounds precisely and clearly),
6. GROUNDS FOR INTERIM RELIEF:,
(Here specify briefly the grounds on which interim relief is sought for),
7. MAIN PRAYER:,
(Here set out the main prayer),
8. INTERIM RELIEF:,
252,
(Here set out the interim prayer),
Place: Advocate for the petitioner,
Date:,
Settled by:,
(Specify the name of the Advocate in case where the petition is settled by an advocate.),
__________,
NO. 29,
APPLICATION FOR ISSUE OF CERTIFIED COPY/UNAUTHENTICATED “COPY”,
IN THE SUPREME COURT OF INDIA,
"(S.C.R., Order XIII, Rule 3)",
Copy Application No. ………. of 20…… Court No………. Item No……,
(To be filled up by the Office),
Whether pending or disposed of ………….,
"If disposed of, then date of disposal…………",
Between,
…………………………….. Petitioner/Applicant,
And,
……………………………................Respondent,
Name with full address of the applicant ………………………………,
……………………………..,
……………………………,
Whether party to the proceedings……………… [Yes/No],
"If yes, then status as …………………………….",
Nature of the copying application …………………… [Urgent/Ordinary],
Whether the copy is required to be sent by post…………………………,
It is prayed that the certified copy/unauthenticated “copy” of the documents hereunder,
mentioned may be furnished to the applicant:-,
Sl.No. Description of Document Date,
1. ……………………….. …………..,
2. ……………………….. …………..,
Reasons for which copy is required:,
………………………………………………………………………………………………………,
……………………………………………………………………………………………,
Signature/Thumb Impression of,
the Applicant/Advocate on Record,
[With name in Block Letters],
253,
………………………………………………………………………………………………,
Instructions,
1. The application for certified copy/unauthenticated “copy” should contain the full,
description of the documents of which copies are sought and the dates of the documents.,
"2. Applications for certified copy/unauthenticated “copy”, made by person who is not a",
party to the proceedings should also be accompanied by an affidavit of such person specifying,
the grounds or reasons for which the copy is required and stating how the applicant is interested,
in obtaining the copy.,
__________,
NO. 30,
APPEARANCE SLIP,
IN THE SUPREME COURT OF INDIA,
Date of Listing……………………,
Court No ………../In Chambers Item No. ……….,
Case No. …………………………..,
Name of Advocate Enrolment No.,
1………………………….. ……………………………..,
2………………………….. ……………………………..,
Appearing for,
Petitioner Respondent,
No. No.,
…………………………….,
[Signature of AOR],
…………………………….,
[Name of AOR],
Note:,
Court Master shall ensure to record appearance in the Record of Proceedings of all the,
Senior Advocate(s)/AOR/Advocate(s) who are physically present and appearing in the Court at,
"the time of hearing, duly recognized by the AOR.",
__________,
254,
NO.31,
COMPUTER SHEET,
IN THE SUPREME COURT OF INDIA,
Class of Case………… Number*…………… of 20……..,
1. Petitioner:,
Appellant:…………………………………………………………….,
Applicant:,
2. Respondent:…………………………………………………………..,
Non-applicant:,
3. Date of Filing & Registrar:………………………………………….,
4. Subject Matter :……………………………………………………,
…………………………………………………….,
…………………………………………………….,
5. Provision of Law :…………………………………………………….,
…………………………………………………….,
6. Subject Category Code Number:…………………………………….,
Sub-Code Number:……………………………,
(As per Annexure to the Rules),
7. Name of the Main Advocate:………………..,
(with State Bar Council Enrollment Number),
8. Name(s) of Associate Advocate(s):……………………….(with State Bar Council,
Enrollment Number(s),
"9. Particulars of the Lower Court, Authority or Tribunal, viz.",
(a) Name………………………………,
(b) Designation………………………… Place………………,
"(c) Case, File/Order Number,…………….",
(d) Date of Impugned Judgment/Order/Award…………..,
10.Whether the petitioner/appellant/applicant is desirous of getting the matter settled,
through any of the alternative modes of dispute resolution prescribed under,
Section 89 C.P.C. (Yes/No),
"If yes, by which mode? i.e. arbitration/conciliation/Lok Adalat/mediation.",
"11.Caveat notice, whether received (Yes/No)",
Place……….,
Date……….,
Name and Signature,
255,
of the Advocate on-,
Record filing the Case,
*Number to be filled by the office.,
__________,
NO.32,
IN THE SUPREME COURT OF INDIA,
ORIGINAL JURISDICTION,
Writ Petition No………../20………..,
Cause Title,
"Petitioner: The name, age, father/husband’s name, occupation, complete",
"address and fax number with S.T.D. Code and email address, if",
any;,
Vs,
"Respondent: The name, age, father/husband’s name, occupation, complete",
"address and fax number with S.T.D. Code and email address, if",
known;,
(Writ Petition under Article 32 of the Constitution of India),
To,
Hon’ble the Chief Justice of India and His Companion Judges of the Supreme Court of,
India.,
The Writ Petition of the Petitioner most respectfully showeth:,
The petitioner/petitioners above named respectfully submits this petition seeking,
1. Particular of the cause/order against which the petition is made:,
(i) Date of Order/Notification/Circular/Policy/Decision etc:…………………………...,
(ii) Passed in (Case or File Number):……………………………………………………,
"(iii) Passed by (Name and designation of the Court, Authority, Tribunal etc.)",
…………………………………………………………………………………………,
…………………………………………………………………………………………,
……………………………………………………………………………………,
(iv)Subject-matter in brief:…………………………………………………….,
2. Nature of fundamental right infringed:………………………………………,
256,
3. A declaration that no processing on the same subject matter has been previously,
"instituted in any Court. If instituted, the status or result thereof, along with copy",
of the order:,
4. Details of remedies exhausted:,
The petitioner declares that he has availed all statutory and other remedies.,
"5. In the writ of habeas corpus, whether the petitioner has moved the High Court",
"concerned for similar relief and if so, with what result.",
6. Facts of the case:,
(Give a concise statement of facts in chronological order in separate paragraphs),
7. Grounds:,
(Here specify the grounds precisely and clearly).,
8. Grounds for interim relief.,
(Here specify briefly the grounds on which interim relief is sought for),
9. Main prayer:,
(Set out the main prayer),
"10.Interim relief, if any:",
(Set out the interim prayer or writ).,
Place:………………,
Date:………………..,
(Signature),
Advocate on-record for Petitioner(s),
Settled by:,
(Specify the name of the Advocate in case where the petition is settled by an advocate),
__________,
257,
NO. 33,
IN THE SUPREME COURT OF INDIA,
EXTRA-ORDINARY ORIGINAL JURISDICTION,
Writ Petition No………../20……….. (P.I.L.),
PUBLIC INTEREST LITIGATION,
Cause Title,
"Petitioner: The name, age, father/husband’s name, occupation, complete",
postal address and fax number with S.T.D. Code and email,
"address, if any, phone number;",
Vs,
"Respondent: The name, age, father/husband’s name, occupation, complete",
"address and fax number with S.T.D. Code and email address, if",
known;,
To,
Hon’ble the Chief Justice of India and His Companion Judges of the Supreme Court of,
India.,
The Writ Petition of the Petitioner most respectfully showeth:,
The petitioner/petitioners above named respectfully submits this petition seeking,
1. Particular of the cause/order against which the petition is made:,
(1) Date of Order/Notification/Circular/Policy/Decision etc.:………………………….,
(2) Subject-matter in brief……………………………………………………………..,
2. The antecedents of the Petitioner:,
(1) That the petitioner is…………………(give petitioner’s social public,
standing/professional status and public spirited antecedents; if the petitioner is a,
"social group or organization,",
(2) The present petition under Article 32 of the Constitution of India is being filed by,
way of public interest litigation and the petitioner has no personal interest (if he has,
"any personal interest, disclose the nature and extent of such interest). The petition is",
being filed in the interest of……………..(give nature of such interest and particulars,
of the class of persons for whose benefit the petition is filed).,
(3) That the petitioner is filing the present petition on his own and not at the instance of,
"someone else. The litigation cost, including the advocate’s fee and the travelling",
258,
"expense of the lawyers, if any, are being borne by the petitioner himself (if not, the",
petitioner must disclose the source of funds).,
3. Facts constituting the cause of action:,
[Here specify the facts briefly],
4. Source of information:,
Declare the source of information if the statement is based on information or the facts,
pleaded in the Public Interest Litigation; also whether the applicant has verified the facts,
"personally, if yes, in what manner?",
5. Details of remedies exhausted:,
The petitioner declares that he has availed all statutory and other remedies.,
6. Nature and extent of injury caused or likely to be caused to the public:,
[Here specify concisely about the nature of injury caused or likely to be caused],
"7. Nature and extent of personal interest, if any, of the petitioners.",
"[Here specify briefly the nature and extent of personal interest, if any]",
"8. Details regarding any civil, criminal or revenue litigation, involving the",
"petitioner or any of the petitioners, which has or could have a legal nexus with",
the issue(s) involved in the Public Interest Litigation.,
"[Here specify the details, if any]",
"9. Whether issue was raised earlier; if so, what result:",
(Here make a statement/declaration that the issue raised was neither dealt with nor,
"decided by a Court of law at the instance of the petitioner or to the best of his knowledge,",
"at the instance of any other person and in case such an issue was raised or dealt with, the",
status or result thereof).,
"(Also disclose whether in a P.I.L., any cost has been awarded to or imposed upon the",
petitioner; and whether any appreciation or stricture has been passed).,
10.Whether concerned Government Authority was moved for relief(s) sought in the,
"petition and if so, with what result:",
(Here state whether the petitioner has made any representation in this regard to the,
"concerned authority, (if yes, details of such representation and reply, if any, from the",
"authority concerned, along with copies thereof. If not, reason for not making such",
representation).,
259,
11.Grounds:,
(Here specify the grounds precisely and clearly).,
12.Grounds for interim relief:,
(Specify the grounds for interim relief),
13.Main prayer:,
(Specify below the relief(s) prayed for),
"14.Interim relief, if any:",
"(Give the nature of interim order prayed for, with reason).",
Place: …………..,
Date: …………..,
(Signature),
Advocate on-record for Petitioner(s)/,
Petitioner in-person,
Settled by:,
(Specify the name of the advocate in case where the petition is settled by an advocate).,
"* The petitioner shall disclose proof regarding personal identification, occupation and annual",
"income, PAN number, National Unique Identity Card number, if any.",
"** The petitioner shall file an affidavit stating that there is no personal gain, private motive or",
oblique reason in filing the Public Interest Litigation.,
__________,
NO.34,
CAVEAT,
IN THE SUPREME COURT OF INDIA,
Caveat Application No……./20…..,
"Caveator: The name, age, father/husband’s name, occupation, complete",
"address and fax number with S.T.D. Code and email address, if",
any;,
Vs,
"Caveatee: The name, age, father/husband’s name, occupation, complete",
"address and fax number with S.T.D. Code and email address, if",
known;,
1. Name of the Court/designation of the authority,
2. The date of judgment/order etc.,
3. The cause title and case number,
260,
4. Particulars of the order etc.,
Caveat,
The cavetor named above respectfully begs to submit as under:,
1. That it is expected that the caveatee may prefer an appeal/petition to the Supreme,
Court praying for interim relief therein.,
2 That the caveator was party to the proceedings before the High Court as…….,
3. That the caveator has despatched a notice of caveat by registered post with,
"acknowledgment due/by courier service, on the person by whom the",
"appeal/petition has been, or is expected to be filed, furnishing particulars",
"regarding the judgment/order etc. as detailed hereinabove, in respect whereof the",
caveat is filed.,
A receipt evidencing despatch of the caveat is annexed as annexure……….,
4. The postal address of the caveator or his authorized agent:…………………….,
"5. It is, therefore, prayed that, in the event of the caveatee preferring such an",
"appeal/petition within a period of 90 days, with an application seeking any interim",
relief_,
(a) Notice of lodging of the petition may kindly be given to the caveator.,
(Signature),
Advocate for,
Caveator Place:……………,
Date:……………,
No.35,
MENTION MEMO/LISTING PROFORMA,
IN THE SUPREME COURT OF INDIA,
Appellant:,
Applicant:…………………………………….,
Petitioner:,
Versus,
Respondent:,
Non-applicant:………………………………,
Request by…………………………… for listing a Case Urgently.,
261,
(At 10:30 a.m.),
1. Case no. of main case ……………….,
2. Date and time of filing ……………….,
"3. The date on which the defects, ……………….",
"If any, were rectified:",
(Where the Office has pointed out defects),
4. Whether any fixed date has been,
given by the Court: ………………….,
5. Whether any tentative date has been,
appearing in the case: …………………..,
6. Purpose for which listing of the case is,
is requested: …………………….,
……………………,
…………………..,
7. Reasons for urgency: …………………..,
………………….,
………………….,
"8. Date for which the request is made, if any: …………………..",
Place:…………… (Signature),
Date:……………… Advocate on-record for………….,
Note: (i) Not to be presented to the Court before filing of the main case at the,
Filing Counter.,
(ii)Not to be presented for listing of a regular hearing case.,
_______,
No. 36,
INSPECTION OR SEARCH OF RECORDS,
IN THE SUPREME COURT OF INDIA,
Class of Case .................... No. …………… of 20… Listed on ....../disposed of,
on..............,
Appellant :,
Applicant : ……………………………………………………………….,
Petitioner :,
Versus,
Respondent :,
Non-applicant : …………………………………………………………………….,
262,
Application for Inspection of Record,
"To,",
"The Registrar,",
"Supreme Court of India,",
New Delhi.,
"Sir,",
Please make available following record/book/register for inspection:,
Particulars of Record / Book / Register of Capacity in which,
which Inspection is requested Inspection or search is,
sought,
Place: ………… Signature,
Date: …………. Applicant/Advocate on-,
record,
___________,
No. 37,
NOTICE TO THE RESPONDENT TO SHOW CAUSE,
"[SCR, Order XXI Rule 9(1)]",
IN THE SUPREME COURT OF INDIA,
EXTRA-ORDINARYAPPELLATE JURISDICTION,
PETITION FOR SPECIAL LEAVE TO APPEAL (C ) NO…. OF 20…,
(arising from the judgment and decree/order of the High Court…..(full particulars to be given),
[ A.B.] [Petitioner],
Vs.,
[C.D.] [Respondent],
"To,",
Through Shri……..,
"Advocate on-record,",
"Supreme Court of India,",
New Delhi.,
263,
OR,
(give the address of the respondent if no appearance of an advocate on-record has been,
entered.,
Whereas the Petition for Special Leave to Appeal above-mentioned (copy enclosed) filed,
"in the Registry by Mr. ….., advocate on-record, on behalf of the Petitioner(s) above named, was",
"listed for hearing before the Court on May…., 20…. and the Court was pleased to pass the",
following order:-,
“________________”,
"* NOW, THEREFORE, TAKE NOTICE that the above petition will be posted for",
hearing before the Court in due course on _____ when you may appear before this Court,
either in person or through an advocate-on-record of this Court duly appointed by you in,
that behalf within thirty days from the date of service of notice. You may thereafter show,
cause to the Court on the day that may subsequently be specified as to why special leave,
"and interim relief, as prayed for, be not granted and the resultant appeal be not allowed. .",
"* NOW, THEREFORE, TAKE NOTICE that the above Petition with a prayer",
for interim relief will be posted for hearing before this Court on ______ at 10:30 in the,
forenoon or so soon thereafter as may be convenient to the Court when you may appear,
before the Court either in person or through advocate on-record and show cause to the,
Court as to why Special Leave Petition and interim relief as prayed for be not granted and,
the resultant appeal be not allowed.,
You may file your affidavit in opposition to the petition as provided under Rule,
"14(1) of Order XXI, SCR 2013, within thirty days from the date of receipt of notice or",
"not later than two weeks before the date appointed for hearing, whichever be earlier, but",
shall do so only by setting out the grounds in opposition to the questions of law or,
grounds set out in the SLP and may produce such pleadings and documents filed before,
the Court against whose order the SLP is filed and shall also set out the grounds for not,
granting interim order or for vacating interim order if already granted.,
"TAKE FURTHER NOTICE that if you fail to enter appearance, as aforesaid, no",
further notice shall be given to you even after the grant of special leave for hearing of the,
resultant appeal and the matter above mentioned shall be disposed of in your absence.,
"Dated this the 10th March, 2017.",
Assistant Registrar,
"(*Strike out, whichever is not applicable)",
"(This Form, with necessary modifications and adaptations, may be used in S.L.P (Criminal) and",
appeals),
"Copy to:- Mr._______, Advocate",
264,
Note:,
[1] “LEGAL AID: Legal service of an advocate is provided by the Supreme Court Legal,
Services Committee and the Supreme Court Middle Income Group Legal Aid Society to eligible,
Litigants.,
"For further information, please contact the Secretary, Supreme Court Legal Services",
"Committee or the Member Secretary, Supreme Court Middle Income Group Legal Aid Society,",
"107-108, Lawyer’s Chambers, R.K. Jain Block-Near Post Office, Supreme Court compound,",
"Tilak Marg, New Delhi-110201 (Tel. No. 011-23388313, 23388597).",
[2] MEDIATION:The facility of amicable settlement of disputes by trained mediators in,
cases pending in the Supreme Court is available in the Supreme Court.,
"For further information, please contact the Co-ordinator, Supreme Court",
"Mediation Center, 109, Lawyers’ Chambers, R.K. Jain Block-Near Post Office, Supreme",
"Court Compound, Tilak Marg, New Delhi-110201 (Tel No. 011-2307432).",
Copy to:-,
_________,
NO. 38,
NOTICE TO THE RESPONDENT TO SHOW CAUSE,
"(SCR, Order XLI Rule 2)",
IN THE SUPREME COURT OF INDIA,
(ORIGINAL JURISDICTION),
TRANSFER PETITION (C) NO… OF 20…,
WITH,
INTERLOCUTORY APPLICATION NO. …. OF 20….,
(Application for Stay),
[ A.B.] [Petitioner],
Vs.,
[C.D.] [Respondent],
"To,",
Through Shri……..,
"Advocate on-record,",
"Supreme Court of India,",
New Delhi.,
OR,
(give the address of the respondent if no appearance of an advocate on-record has been,
entered.,
265,
"WHEREAS the Petition under Section 25 of the Code of Civil Procedure, 1908, above-",
"mentioned, along with an application for ex-parte stay, seeking transfer of Case No._______ of",
"20____, titled as________ vs._______, pending before the Family Court/Court of___________,",
under the Jurisdiction of High Court of ________ to the Family Court/competent court,
"at_________, under the jurisdiction of the High Court of __________.[Copy enclosed] filed by",
"Mr.________, advocate for the petitioner was listed for preliminary hearing before this Court",
"on__________, and the Court was pleased to pass the following order:",
“___________________”,
"NOW, THEREFORE, TAKE NOTICE that the above petition along with application",
for stay will be taken up by this Court in due course and you may enter appearance before this,
Court either in-person or through an Advocate-on-Record of this Court duly appointed by you,
in that behalf within thirty days from the date of service of notice. You may thereafter show,
cause to the Court on the day that may subsequently be specified as to why the prayer made in,
the transfer petition and application for stay may not be allowed/granted to the petitioner above,
named.,
"NOW, THEREFORE, TAKE NOTICE that the above petition along with application",
for stay will be posted for hearing before this Court on the ___/____/2017 and will be taken,
up by this Court on that day at 10.30 in the forenoon or so soon thereafter as may be,
convenient to the court when you may appear before this Court either in person or through,
an Advocate on record of this Court duly appointed by you in that behalf and show cause,
to the Court as to why the prayer made in the transfer petition and application for stay may not,
"be granted to the petitioner, above named.",
"You may file affidavit in opposition to the petition, as provided under Rule 3 Order XLI,",
"S.C.R. 2013, not later than one week before the date appointed for hearing of the petition.",
"TAKE FURTHER NOTICE that if you fail to enter appearance, as aforesaid, no further",
notice shall be given to you and the matter above mentioned shall be disposed of in your,
absence.,
"Dated this the 30th day of September, 2015.",
ASSISTANT REGISTRAR,
"(*Strike out, whichever is not applicable)",
"(This Form, with necessary modifications and adaptations, may be used in transfer petition",
(criminal) or otherwise.),
"Copy to:- Mr._______, Advocate",
266,
Note:,
[1] “LEGAL AID:Legal service of an advocate is provided by the Supreme Court,
Legal Services Committee and the Supreme Court Middle Income Group Legal Aid,
Society to eligible Litigants.,
"For further information, please contact the Secretary, Supreme Court Legal",
"Services committee or the Member Secretary, Supreme Court Middle Income Group",
"Legal Aid Society, 107- 108, Lawyers' Chambers, R.K. Jain Block- Near Post Office,",
"Supreme Court compound, Tilak Marg, New Delhi-110201 (Tel. No. 011-23388313,",
23388597),
[2] MEDIATION:The facility of amicable settlement of disputes by trained,
mediators in cases pending in the Supreme Court is available in the Supreme Court.,
"For further information, please contact the Co-ordinator, Supreme Court",
"Mediation Center, 109, Lawyers' Chambers, R.K. Jain Block-Near Post Office, Supreme",
"Court Compound, Tilak Marg, New Delhi-110201 ( Tel No. 011-23071432).",
Copy to:,
ASSISTANT REGISTRAR,
267,
Annexure I,
SUPREME COURT OF INDIA,
COMPILATION OF GUIDELINES TO BE FOLLOWED FOR,
ENTERTAINING LETTERS/PETITIONS RECEIVED,
IN THIS COURT AS PUBLIC INTEREST LITIGATION.,
(Based on full Court decision dated 1.12.1988 and subsequent modifications).,
No petition involving individual/ personal matter shall be entertained as a PIL matter except as,
indicated hereinafter.,
Letter-petitions falling under the following categories alone will ordinarily be,
entertained as Public Interest Litigation:-,
1. Bonded Labour matters.,
2. Neglected Children.,
3. Non-payment of minimum wages to workers and exploitation of casual workers and,
complaints of violation of Labour Laws (except in individual cases).,
"4. Petitions from jails complaining of harassment, for (pre-mature release)* and seeking",
"release after having completed 14 years in jail, death in jail, transfer, release on personal",
"bond, speedy trial as a fundamental right.",
"*$ Petitions for premature release, parole etc. are not matters which deserve to be treated",
as petitions u/Article 32 as they can effectively be dealt with by the concerned High,
Court. To save time Registry may simultaneously call for remarks of the jail,
Superintendent and ask him to forward the same to High Court. The main petition may be,
forwarded to the concerned High Court for disposal in accordance with law.,
Even in regard to petitions containing allegations against Jail Authorities there is no,
reason why it cannot be dealt with by the High Court. But petitions complaining of,
"torture, custody death and the like may be entertained by this Court directly if the",
allegations are of a serious nature.,
"(5) Petitions against police for refusing to register a case, harassment by police and death in",
police custody.,
"(6) Petitions against atrocities on women, in particular harassment of bride, bride- burning,",
"rape, murder, kidnapping etc.",
+ In such cases where office calls for police report if letter petitioner asks for copy the same may,
"be supplied, only after obtaining permission of the Hon'ble Judge nominated by the Hon'ble",
Chief Justice of India for PIL matters.,
---------------------------------------------------------------------------------------------------------------------,
$ Added based on Order dated 19.8.1993 of the then Chief Justice of India.,
268,
(7) Petitions complaining of harassment or torture of villagers by co- villagers or by police,
from persons belonging to Scheduled Caste and Scheduled Tribes and economically,
backward classes.,
"(8) Petitions pertaining to environmental pollution, disturbance of ecological balance, drugs,",
"food adulteration, maintenance of heritage and culture, antiques, forest and wild life and",
other matters of public importance.,
(9) Petitions from riot -victims.,
(10) Family Pension.,
All letter-petitions received in the PIL Cell will first be screened in the Cell and only such,
petitions as are covered by the above mentioned categories will be placed before a Judge to be,
nominated by Hon'ble the Chief Justice of India for directions after which the case will be listed,
before the Bench concerned.,
"If a letter-petition is to be lodged, the orders to that effect should be passed by Registrar",
"(Judicial) (or any Registrar nominated by the Hon'ble Chief Justice of India), instead of",
"Additional Registrar, or any junior officer.",
To begin with only one Hon'ble Judge may be assigned this work and number increased to two or,
three later depending on the workload.,
*Submission Notes be put up before an Hon'ble Judge nominated for such periods as may be,
decided by the Hon'ble Chief Justice of India from time to time.,
"**If on scrutiny of a letter petition, it is found that the same is not covered under the PIL",
"guidelines and no public interest is involved, then the same may be lodged only after the",
approval from the Registrar nominated by the Hon'ble the Chief Justice of India.,
**It may be worthwhile to require an affidavit to be filed in support of the statements contained,
in the petition whenever it is not too onerous a requirement.,
---------------------------------------------------------------------------------------------------------------------,
+ Added as per Order dated 29.8.2003 of the Hon'ble Chief Justice of India.,
* As per Order dated 29.8.2003 of the Hon'ble the Chief Justice of India.,
269,
**The matters which can be dealt with by the High Court or any other authority may be sent to,
them without any comment whatsoever instead of all such matters being heard judicially in this,
Court only.,
Cases falling under the following categories will not be entertained as Public Interest Litigation,
"and these may be returned to the petitioners or filed in the PIL Cell, as the case may be:",
(1) Landlord-Tenant matters.,
(2) Service matter and those pertaining to Pension and Gratuity.,
(3) Complaints against Central/ State Government Departments and Local Bodies except,
those relating to item Nos. (1) to (10) above.,
(4) Admission to medical and other educational institution.,
(5) Petitions for early hearing of cases pending in High Courts and Subordinate Courts.,
"In regard to the petitions concerning maintenance of wife, children and parents, the petitioners",
may be asked to file a Petition under sec. 125 of Cr. P.C. Or a Suit in the Court of competent,
jurisdiction and for that purpose to approach the nearest Legal Aid Committee for legal aid and,
advice.,
--------------------------------------------------------------------------------------------------------------------,
** Modified keeping in view the directions dated 29.8.2003 of the Hon'ble Chief Justice of India.,
270,
Subject wise decisions of Supreme Court,
* Please click on Case Title for Details,
Sections Subject Court Name Cases,
Central Board of Secondary education & Anr V/s Aditya,
Bandopadhyay & Ors.,
Section,
Definition of Information Supreme Court Khanapuram Gandaiah V/S Administrative Officer and Ors.,
2 (f),
ThalappalamSer Coop bank Ltd and others V/S State of Kerala and,
ootthheerrss,
Section ThalappalamSer Coop bank Ltd and others V/S State of Kerala and,
Definition of Public authority Supreme Court,
2 (h) others,
"Security, Strategic, Scientific or",
Section 8(1)(a) Supreme court Reserve Bank of India V/S Jayantilal N Mistry,
Economic interests of the state,
The Institute of Chartered Accountants of india V/S Shaunak H Satya,
Section & Ors.,
Commercial Confidence Supreme Court,
8 (1) (d),
Reserve Bank of India V/S Jayantilal N Mistry,
Central Board of Secondary education &Anr V/s Aditya,
Bandopadhyay & Ors.,
Section,
Fiduciary Relationship Supreme Court,
8 (1) (e) Union Public service Commission V/S Gourhari Kamila,
Reserve Bank of India V/S Jayantilal N Mistry,
Sections Subject Court Name Cases,
Central Board of Secondary education & Anr V/s Aditya,
Bandopadhyay & Ors.,
Section,
Danger to Life or Physical Safety Supreme Court,
8 (1) (g),
Bihar Public Service Commission V/S Saiyed Hussain Abbas Rizwi &,
Anr.,
Girish Ramchandra Deshpande V/S Central Information commission,
& Ors.,
Bihar Public Service Commission V/S Saiyed Hussain Abbas Rizwi &,
Anr.,
Section,
Personal Information Supreme Court,
8 (1) (j) R K Jain V/S Union of India and Anr.,
ThalappalamSer Coop bank Ltd and others V/S State of Kerala and,
ootthheerrss,
Canara Bank Rep by its Deputy Gen Manager V/s C S shyam & Anr,
Central Board of Secondary education &Anr V/s Aditya,
Section 10 Severability Supreme Court,
Bandopadhyay & Ors.,
R K Jain V/s Union of India and Anr,
Section 11 Third Party information Supreme Court,
Union Public Service Commission Etc. V/S Angesh Kumar & Ors Etc,
Section 20 Penalty Proceedings Supreme Court Manohar S/O ManikraoAnchule V/S State of Maharashtra & Anr.,
Reportable,
IN THE SUPREME COURT OF INDIA,
CIVIL APPELALTE JURISDICTION,
CIVIL APPEAL NO.6454 OF 2011,
[Arising out of SLP [C] No.7526/2009],
Central Board of Secondary Education & Anr. … Appellants,
Vs.,
Aditya Bandopadhyay & Ors. … Respondents,
With,
CA No. 6456 of 2011 (@ SLP (C) No.9755 of 2009),
CA Nos.6457-6458 of 2011 (@ SLP (C) Nos.11162-11163 of 2009),
CA No.6461 of 2011 (@ SLP (C) No.11670 of 2009),
CA Nos.6462 of 2011 (@ SLP (C) No.13673 of 2009),
CA Nos.6464 of 2011 (@ SLP (C) No.17409 of 2009),
CA Nos. 6459 of 2011 (@ SLP (C) No.9776 of 2010),
CA Nos.6465-6468 of 2011 (@ SLP (C) Nos.30858-30861 of 2009),
J U D G M E N T,
"R.V.RAVEENDRAN, J.",
"Leave granted. For convenience, we will refer to the facts of the first",
case.,
"2. The first respondent appeared for the Secondary School Examination,",
2008 conducted by the Central Board of Secondary Education (for short,
2,
‘CBSE’ or the ‘appellant’). When he got the mark sheet he was disappointed,
with his marks. He thought that he had done well in the examination but his,
answer-books were not properly valued and that improper valuation had,
resulted in low marks. Therefore he made an application for inspection and,
re-evaluation of his answer-books. CBSE rejected the said request by letter,
dated 12.7.2008. The reasons for rejection were:,
(i) The information sought was exempted under Section 8(1)(e) of RTI,
Act since CBSE shared fiduciary relationship with its evaluators and,
maintain confidentiality of both manner and method of evaluation.,
(ii) The Examination Bye-laws of the Board provided that no candidate,
shall claim or is entitled to re-evaluation of his answers or disclosure,
or inspection of answer book(s) or other documents.,
(iii) The larger public interest does not warrant the disclosure of such,
information sought.,
"(iv) The Central Information Commission, by its order dated 23.4.2007 in",
appeal no. ICPB/A-3/CIC/2006 dated 10.2.2006 had ruled out such,
disclosure.”,
3. Feeling aggrieved the first respondent filed W.P. No.18189(W)/2008,
before the Calcutta High Court and sought the following reliefs : (a) for a,
declaration that the action of CBSE in excluding the provision of re-,
"evaluation of answer-sheets, in regard to the examinations held by it was",
"illegal, unreasonable and violative of the provisions of the Constitution of",
3,
India; (b) for a direction to CBSE to appoint an independent examiner for re-,
evaluating his answer-books and issue a fresh marks card on the basis of re-,
evaluation; (c) for a direction to CBSE to produce his answer-books in,
regard to the 2008 Secondary School Examination so that they could be,
properly reviewed and fresh marks card can be issued with re-evaluation,
marks; (d) for quashing the communication of CBSE dated 12.7.2008 and,
for a direction to produce the answer-books into court for inspection by the,
first respondent. The respondent contended that section 8(1)(e) of Right to,
"Information Act, 2005 (‘RTI Act’ for short) relied upon by CBSE was not",
applicable and relied upon the provisions of the RTI Act to claim inspection.,
"4. CBSE resisted the petition. It contended that as per its Bye-laws, re-",
evaluation and inspection of answer-books were impermissible and what,
was permissible was only verification of marks. They relied upon the CBSE,
"Examination Bye-law No.61, relevant portions of which are extracted",
below:,
“61. Verification of marks obtained by a Candidate in a subject,
(i) A candidate who has appeared at an examination conducted by the,
Board may apply to the concerned Regional Officer of the Board for,
verification of marks in any particular subject. The verification will be,
restricted to checking whether all the answer's have been evaluated and,
that there has been no mistake in the totalling of marks for each question,
in that subject and that the marks have been transferred correctly on the,
title page of the answer book and to the award list and whether the,
4,
supplementary answer book(s) attached with the answer book mentioned,
by the candidate are intact. No revaluation of the answer book or,
supplementary answer book(s) shall be done.,
(ii) Such an application must be made by the candidate within 21 days,
from the date of the declaration of result for Main Examination and 15,
days for Compartment Examination.,
(iii) All such applications must be accompanied by payment of fee as,
prescribed by the Board from time to time.,
"(iv) No candidate shall claim, or be entitled to, revaluation of his/her",
answers or disclosure or inspection of the answer book(s) or other,
documents.,
xxxx,
(vi) In no case the verification of marks shall be done in the presence of,
"the candidate or anyone else on his/her behalf, nor will the answer books",
be shown to him/her or his/her representative.,
(vii) Verification of marks obtained by a candidate will be done by the,
officials appointed by or with the approval of the Chairman.,
"(viii) The marks, on verification will be revised upward or downward, as",
per the actual marks obtained by the candidate in his/her answer book.,
xxxx,
62. Maintenance of Answer Books,
The answer books shall be maintained for a period of three months and,
shall thereafter be disposed of in the manner as decided by the Chairman,
from time to time.”,
(emphasis supplied),
CBSE submitted that 12 to 13 lakhs candidates from about 9000 affiliated,
schools across the country appear in class X and class XII examinations,
conducted by it and this generates as many as 60 to 65 lakhs of answer-,
"books; that as per Examination Bye-law No.62, it maintains the answer",
5,
books only for a period of three months after which they are disposed of. It,
was submitted that if candidates were to be permitted to seek re-evaluation,
"of answer books or inspection thereof, it will create confusion and chaos,",
subjecting its elaborate system of examinations to delay and disarray. It was,
"stated that apart from class X and class XII examinations, CBSE also",
conducts several other examinations (including the All India Pre-Medical,
"Test, All India Engineering Entrance Examination and Jawahar Navodaya",
Vidyalaya’s Selection Test). If CBSE was required to re-evaluate the,
answer-books or grant inspection of answer-books or grant certified copies,
"thereof, it would interfere with its effective and efficient functioning, and",
will also require huge additional staff and infrastructure. It was submitted,
that the entire examination system and evaluation by CBSE is done in a,
scientific and systemic manner designed to ensure and safeguard the high,
academic standards and at each level utmost care was taken to achieve the,
"object of excellence, keeping in view the interests of the students. CBSE",
referred to the following elaborate procedure for evaluation adopted by it :,
“The examination papers are set by the teachers with at least 20 years of,
teaching experience and proven integrity. Paper setters are normally,
appointed from amongst academicians recommended by then Committee,
of courses of the Board. Every paper setter is asked to set more than one,
set of question papers which are moderated by a team of moderators who,
are appointed from the academicians of the University or from amongst,
the Senior Principals. The function of the moderation team is to ensure,
correctness and consistency of different sets of question papers with the,
curriculum and to assess the difficulty level to cater to the students of,
6,
different schools in different categories. After assessing the papers from,
"every point of view, the team of moderators gives a declaration whether",
"the whole syllabus is covered by a set of question papers, whether the",
distribution of difficulty level of all the sets is parallel and various other,
aspects to ensure uniform standard. The Board also issues detailed,
instructions for the guidance of the moderators in order to ensure uniform,
criteria for assessment.,
The evaluation system on the whole is well organized and fool-proof. All,
the candidates are examined through question papers set by the same,
paper setters. Their answer books are marked with fictitious roll numbers,
so as to conceal their identity. The work of allotment of fictitious roll,
number is carried out by a team working under a Chief Secrecy Officer,
having full autonomy. The Chief Secrecy Officer and his team of,
assistants are academicians drawn from the Universities and other,
autonomous educational bodies not connected with the Board. The Chief,
Secrecy Officer himself is usually a person of the rank of a University,
professor. No official of the Board at the Central or Regional level is,
associated with him in performance of the task assigned to him. The codes,
of fictitious roll numbers and their sequences are generated by the Chief,
Secrecy Officer himself on the basis of mathematical formula which,
randomize the real roll numbers and are known only to him and his team.,
This ensures complete secrecy about the identification of the answer book,
"so much so, that even the Chairman, of the Board and the Controller of",
Examination of the Board do not have any information regarding the,
fictitious roll numbers granted by the Chief Secrecy Officer and their real,
counterpart numbers.,
"At the evaluation stage, the Board ensures complete fairness and",
uniformity by providing a marking scheme which is uniformity applicable,
to all the examiners in order to eliminate the chances of subjectivity.,
These marking schemes are jointly prepared at the Headquarters of the,
Board in Delhi by the Subject Experts of all the regions. The main purpose,
of the marking scheme is to maintain uniformity in the evaluation of the,
answer books.,
The evaluation of the answer books in all major subjects including,
"mathematics, science subjects is done in centralized “on the spot”",
evaluation centers where the examiners get answer book in interrupted,
"serial orders. Also, the answer books are jumbled together as a result of",
"which the examiners, say in Bangalore may be marking the answer book",
"of a candidate who had his examination in Pondicherry, Goa, Andaman",
"and Nicobar islands, Kerala, Andhra Pradesh, Tamil Nadu or Karnataka",
itself but he has no way of knowing exactly which answer book he is,
examining. The answer books having been marked with fictitious roll,
numbers give no clue to any examiner about the state or territory it,
7,
belongs to. It cannot give any clue about the candidate’s school or centre,
of examination. The examiner cannot have any inclination to do any,
favour to a candidate because he is unable to decodify his roll number or,
"to know as to which school, place or state or territory he belongs to.",
The examiners check all the questions in the papers thoroughly under the,
supervision of head examiner and award marks to the sub parts,
individually not collectively. They take full precautions and due attention,
is given while assessing an answer book to do justice to the candidate. Re-,
evaluation is administratively impossible to be allowed in a Board where,
lakhs of students take examination in multiple subjects.,
There are strict instructions to the additional head examiners not to allow,
any shoddy work in evaluation and not to issue more than 20-25 answer,
books for evaluation to an examiner on a single day. The examiners are,
practicing teachers who guard the interest of the candidates. There is no,
ground to believe that they do unjust marking and deny the candidates,
their due. It is true that in some cases totaling errors have been detected at,
the stage of scrutiny or verification of marks. In order to minimize such,
"errors and to further strengthen and to improve its system, from 1993",
checking of totals and other aspects of the answers has been trebled in,
order to detect and eliminate all lurking errors.,
The results of all the candidates are reviewed by the Results Committee,
functioning at the Head Quarters. The Regional Officers are not the,
number of this Committee. This Committee reviews the results of all the,
regions and in case it decides to standardize the results in view of the,
"results shown by the regions over the previous years, it adopts a uniform",
policy for the candidates of all the regions. No special policy is adopted,
"for any region, unless there are some special reasons. This practice of",
awarding standardized marks in order to moderate the overall results is a,
practice common to most of the Boards of Secondary Education. The,
exact number of marks awarded for the purpose of standardization in,
different subjects varies from year to year. The system is extremely,
impersonalized and has no room for collusion infringement. It is in a word,
a scientific system.”,
CBSE submitted that the procedure evolved and adopted by it ensures,
fairness and accuracy in evaluation of answer-books and made the entire,
process as foolproof as possible and therefore denial of re-evaluation or,
8,
inspection or grant of copies cannot be considered to be denial of fair play or,
unreasonable restriction on the rights of the students.,
5. A Division Bench of the High Court heard and disposed of the said,
writ petition along with the connected writ petitions (relied by West Bengal,
Board of Secondary Education and others) by a common judgment dated,
5.2.2009. The High Court held that the evaluated answer-books of an,
examinee writing a public examination conducted by statutory bodies like,
"CBSE or any University or Board of Secondary Education, being a",
"‘document, manuscript record, and opinion’ fell within the definition of",
“information” as defined in section 2(f) of the RTI Act. It held that the,
provisions of the RTI Act should be interpreted in a manner which would,
lead towards dissemination of information rather than withholding the same;,
"and in view of the right to information, the examining bodies were bound to",
provide inspection of evaluated answer books to the examinees.,
Consequently it directed CBSE to grant inspection of the answer books to,
the examinees who sought information. The High Court however rejected,
"the prayer made by the examinees for re-evaluation of the answer-books, as",
that was not a relief that was available under RTI Act. RTI Act only,
"provided a right to access information, but not for any consequential reliefs.",
9,
"Feeling aggrieved by the direction to grant inspection, CBSE has filed this",
appeal by special leave.,
6. Before us the CBSE contended that the High Court erred in (i),
"directing CBSE to permit inspection of the evaluated answer books, as that",
"would amount to requiring CBSE to disobey its Examination Bye-law 61(4),",
which provided that no candidate shall claim or be entitled to re-evaluation,
of answer books or disclosure/inspection of answer books; (ii) holding that,
"Bye-law 61(4) was not binding upon the examinees, in view of the",
"overriding effect of the provisions of the RTI Act, even though the validity",
of that bye-law had not been challenged; (iii) not following the decisions of,
this court in Maharashtra State Board of Secondary Education vs. Paritosh,
"B. Sheth [1984 (4) SCC 27], Parmod Kumar Srivastava vs. Chairman, Bihar",
"PAC [2004 (6) SCC 714], Board of Secondary Education vs. Pavan Ranjan",
"P [2004 (13) SCC 383], Board of Secondary Education vs. S [2007 (1) SCC",
"603] and Secretary, West Bengal Council of Higher Secondary Education",
vs. I Dass [2007 (8) SCC 242]; and (iv) holding that the examinee had a,
right to inspect his answer book under section 3 of the RTI Act and the,
examining bodies like CBSE were not exempted from disclosure of,
information under section 8(1)(e) of the RTI Act. The appellants contended,
"that they were holding the “information” (in this case, the evaluated answer",
10,
books) in a fiduciary relationship and therefore exempted under section,
8(1)(e) of the RTI Act.,
7. The examinees and the Central Information Commission contended,
that the object of the RTI Act is to ensure maximum disclosure of,
information and minimum exemptions from disclosure; that an examining,
"body does not hold the evaluated answer books, in any fiduciary relationship",
either with the student or the examiner; and that the information sought by,
"any examinee by way of inspection of his answer books, will not fall under",
any of the exempted categories of information enumerated in section 8 of the,
RTI Act. It was submitted that an examining body being a public authority,
"holding the ‘information’, that is, the evaluated answer-books, and the",
inspection of answer-books sought by the examinee being exercise of ‘right,
"to information’ as defined under the Act, the examinee as a citizen has the",
right to inspect the answer-books and take certified copies thereof. It was,
"also submitted that having regard to section 22 of the RTI Act, the",
provisions of the said Act will have effect notwithstanding anything,
"inconsistent in any law and will prevail over any rule, regulation or bye law",
of the examining body barring or prohibiting inspection of answer books.,
11,
"8. On the contentions urged, the following questions arise for our",
consideration :,
(i) Whether an examinee’s right to information under the RTI Act,
includes a right to inspect his evaluated answer books in a public,
examination or taking certified copies thereof?,
(ii) Whether the decisions of this court in Maharashtra State Board of,
Secondary Education [1984 (4) SCC 27] and other cases referred to,
"above, in any way affect or interfere with the right of an examinee",
seeking inspection of his answer books or seeking certified copies,
thereof?,
(iii) Whether an examining body holds the evaluated answer books “in a,
fiduciary relationship” and consequently has no obligation to give,
inspection of the evaluated answer books under section 8 (1)(e) of,
RTI Act?,
(iv) If the examinee is entitled to inspection of the evaluated answer books,
"or seek certified copies thereof, whether such right is subject to any",
"limitations, conditions or safeguards?",
Relevant Legal Provisions,
"9. To consider these questions, it is necessary to refer to the statement of",
"objects and reasons, the preamble and the relevant provisions of the RTI",
12,
"Act. RTI Act was enacted in order to ensure smoother, greater and more",
effective access to information and provide an effective framework for,
effectuating the right of information recognized under article 19 of the,
Constitution. The preamble to the Act declares the object sought to be,
achieved by the RTI Act thus:,
“An Act to provide for setting out the practical regime of right to,
information for citizens to secure access to information under the control,
"of public authorities, in order to promote transparency and accountability",
"in the working of every public authority, the constitution of a Central",
Information Commission and State Information Commissions and for,
matters connected therewith or incidental thereto.,
Whereas the Constitution of India has established democratic Republic;,
And whereas democracy requires an informed citizenry and transparency,
of information which are vital to its functioning and also to contain,
corruption and to hold Governments and their instrumentalities,
accountable to the governed;,
And whereas revelation of information in actual practice is likely to,
conflict with other public interests including efficient operations of the,
"Governments, optimum use of limited fiscal resources and the",
preservation of confidentiality of sensitive information;,
And whereas it is necessary to harmonise these conflicting interests while,
preserving the paramountcy of the democratic ideal.”,
Chapter II of the Act containing sections 3 to 11 deals with right to,
information and obligations of public authorities. Section 3 provides for,
"right to information and reads thus: “Subject to the provisions of this Act,",
all citizens shall have the right to information.” This section makes it clear,
13,
"that the RTI Act gives a right to a citizen to only access information, but not",
seek any consequential relief based on such information. Section 4 deals,
with obligations of public authorities to maintain the records in the manner,
provided and publish and disseminate the information in the manner,
provided. Section 6 deals with requests for obtaining information. It,
provides that applicant making a request for information shall not be,
required to give any reason for requesting the information or any personal,
details except those that may be necessary for contacting him. Section 8,
deals with exemption from disclosure of information and is extracted in its,
entirety:,
“8. Exemption from disclosure of information -- (1) Notwithstanding,
"anything contained in this Act, there shall be no obligation to give any",
"citizen,-",
"(a) information, disclosure of which would",
"prejudicially affect the sovereignty and integrity of India, the security,",
"strategic, scientific or economic interests of the State, relation with foreign",
State or lead to incitement of an offence;,
(b) information which has been expressly forbidden to,
be published by any court of law or tribunal or the disclosure of which,
may constitute contempt of court;,
"(c) information, the disclosure of which would cause a",
breach of privilege of Parliament or the State Legislature;,
"(d) information including commercial confidence, trade",
"secrets or intellectual property, the disclosure of which would harm the",
"competitive position of a third party, unless the competent authority is",
satisfied that larger public interest warrants the disclosure of such,
information;,
14,
(e) information available to a person in his fiduciary,
"relationship, unless the competent authority is satisfied that the larger",
public interest warrants the disclosure of such information;,
(f) information received in confidence from foreign,
Government;,
"(g) information, the disclosure of which would",
endanger the life or physical safety of any person or identify the source of,
information or assistance given in confidence for law enforcement or,
security purposes;,
(h) information which would impede the process of,
investigation or apprehension or prosecution of offenders;,
(i) cabinet papers including records of deliberations of,
"the Council of Ministers, Secretaries and other officers:",
"Provided that the decisions of Council of Ministers, the reasons thereof,",
and the material on the basis of which the decisions were taken shall be,
"made public after the decision has been taken, and the matter is complete,",
or over:,
Provided further that those matters which come under the exemptions,
specified in this section shall not be disclosed;,
(j) information which relates to personal information,
the disclosure of which has no relationship to any public activity or,
"interest, or which would cause unwarranted invasion of the privacy of the",
individual unless the Central Public Information Officer or the State,
"Public Information Officer or the appellate authority, as the case may be,",
is satisfied that the larger public interest justifies the disclosure of such,
information:,
Provided that the information which cannot be denied to the Parliament or,
a State Legislature shall not be denied to any person.,
(2) Notwithstanding anything in the Official Secrets,
"Act, 1923 (19 of 1923) nor any of the exemptions permissible in",
"accordance with sub-section (1), a public authority may allow access to",
"information, if public interest in disclosure outweighs the harm to the",
protected interests.,
"(3) Subject to the provisions of clauses (a), (c) and (i)",
"of sub-section (1), any information relating to any occurrence, event or",
"matter which has taken place, occurred or happened twenty years before",
15,
the date on which any request is made under secton 6 shall be provided to,
any person making a request under that section:,
Provided that where any question arises as to the date from which the said,
"period of twenty years has to be computed, the decision of the Central",
"Government shall be final, subject to the usual appeals provided for in this",
Act.”,
(emphasis supplied),
"Section 9 provides that without prejudice to the provisions of section 8, a",
request for information may be rejected if such a request for providing,
access would involve an infringement of copyright. Section 10 deals with,
severability of exempted information and sub-section (1) thereof is extracted,
below:,
“(1) Where a request for access to information is rejected on the ground,
"that it is in relation to information which is exempt from disclosure, then,",
"notwithstanding anything contained in this Act, access may be provided to",
that part of the record which does not contain any information which is,
exempt from disclosure under this Act and which can reasonably be,
severed from any part that contains exempt information.”,
Section 11 deals with third party information and sub-section (1) thereof is,
extracted below:,
“(1) Where a Central Public Information Officer or a State Public,
"Information Officer, as the case may be, intends to disclose any",
"information or record, or part thereof on a request made under this Act,",
which relates to or has been supplied by a third party and has been treated,
"as confidential by that third party, the Central Public Information Officer",
"or State Public Information Officer, as the case may be, shall, within five",
"days from the receipt of the request, give a written notice to such third",
party of the request and of the fact that the Central Public Information,
"Officer or State Public Information Officer, as the case may be, intends to",
16,
"disclose the information or record, or part thereof, and invite the third",
"party to make a submission in writing or orally, regarding whether the",
"information should be disclosed, and such submission of the third party",
shall be kept in view while taking a decision about disclosure of,
information:,
Provided that except in the case of trade or commercial secrets protected,
"by law, disclosure may be allowed if the public interest in disclosure",
outweighs in importance any possible harm or injury to the interests of,
such third party.”,
"The definitions of information, public authority, record and right to",
"information in clauses (f), (h), (i) and (j) of section 2 of the RTI Act are",
extracted below:,
"“(f) ""information"" means any material in any form, including records,",
"documents, memos, e-mails, opinions, advices, press releases, circulars,",
"orders, logbooks, contracts, reports, papers, samples, models, data material",
held in any electronic form and information relating to any private body,
which can be accessed by a public authority under any other law for the,
time being in force;,
"(h) ""public authority"" means any authority or body or institution of self-",
government established or constituted-,
(a) by or under the Constitution;,
(b) by any other law made by Parliament;,
(c) by any other law made by State Legislature;,
"(d) by notification issued or order made by the appropriate Government,",
and includes any-,
"(i) body owned, controlled or substantially financed;",
"(ii) non-Government organisation substantially financed,",
directly or indirectly by funds provided by the appropriate Government;,
17,
"(i) ""record"" includes-",
"(a) any document, manuscript and file;",
"(b) any microfilm, microfiche and facsimile copy of a document;",
(c) any reproduction of image or images embodied in such microfilm,
(whether enlarged or not); and,
(d) any other material produced by a computer or any other device;,
"(j) ""right to information"" means the right to information accessible under",
this Act which is held by or under the control of any public authority and,
includes the right to-,
"(i) inspection of work, documents, records;",
"(ii) taking notes, extracts or certified copies of documents or records;",
(iii) taking certified samples of material;,
"(iv) obtaining information in the form of diskettes, floppies, tapes,",
video cassettes or in any other electronic mode or through printouts,
where such information is stored in a computer or in any other,
device;,
Section 22 provides for the Act to have overriding effect and is extracted,
below:,
“The provisions of this Act shall have effect notwithstanding anything,
"inconsistent therewith contained in the Official Secrets Act, 1923 (19 of",
"1923), and any other law for the time being in force or in any instrument",
having effect by virtue of any law other than this Act.”,
10. It will also be useful to refer to a few decisions of this Court which,
considered the importance and scope of the right to information. In State of,
"Uttar Pradesh v. Raj Narain - (1975) 4 SCC 428, this Court observed:",
18,
"“In a government of responsibility like ours, where all the agents of the",
"public must be responsible for their conduct, there can but few secrets.",
"The people of this country have a right to know every public act,",
"everything, that is done in a public way, by their public functionaries.",
They are entitled to know the particulars of every public transaction in all,
"its bearing. The right to know, which is derived from the concept of",
"freedom of speech, though not absolute, is a factor which should make one",
"wary, when secrecy is claimed for transactions which can, at any rate,",
have no repercussion on public security.”,
(emphasis supplied),
"In Dinesh Trivedi v. Union of India – (1997) 4 SCC 306, this Court held:",
"“In modern constitutional democracies, it is axiomatic that citizens have a",
"right to know about the affairs of the Government which, having been",
"elected by them, seeks to formulate sound policies of governance aimed at",
"their welfare. However, like all other rights, even this right has recognised",
"limitations; it is, by no means, absolute. ………………Implicit in this",
assertion is the proposition that in transaction which have serious,
"repercussions on public security, secrecy can legitimately be claimed",
because it would then be in the public interest that such matters are not,
publicly disclosed or disseminated.,
To ensure the continued participation of the people in the democratic,
"process, they must be kept informed of the vital decisions taken by the",
"Government and the basis thereof. Democracy, therefore, expects",
openness and openness is a concomitant of a free society. Sunlight is the,
best disinfectant. But it is equally important to be alive to the dangers that,
lie ahead. It is important to realise that undue popular pressure brought to,
bear on decision-makers is Government can have frightening side-effects.,
If every action taken by the political or executive functionary is,
transformed into a public controversy and made subject to an enquiry to,
"soothe popular sentiments, it will undoubtedly have a chilling effect on the",
independence of the decision-maker who may find it safer not to take any,
decision. It will paralyse the entire system and bring it to a grinding halt.,
So we have two conflicting situations almost enigmatic and we think the,
answer is to maintain a fine balance which would serve public interest.”,
"In People’s Union for Civil Liberties v. Union of India - (2004) 2 SCC 476,",
this Court held that right of information is a facet of the freedom of “speech,
19,
and expression” as contained in Article 19(1)(a) of the Constitution of India,
and such a right is subject to any reasonable restriction in the interest of the,
security of the state and subject to exemptions and exceptions.,
Re : Question (i),
11. The definition of ‘information’ in section 2(f) of the RTI Act refers to,
"any material in any form which includes records, documents, opinions,",
papers among several other enumerated items. The term ‘record’ is defined,
"in section 2(i) of the said Act as including any document, manuscript or file",
among others. When a candidate participates in an examination and writes,
his answers in an answer-book and submits it to the examining body for,
"evaluation and declaration of the result, the answer-book is a document or",
record. When the answer-book is evaluated by an examiner appointed by the,
"examining body, the evaluated answer-book becomes a record containing",
the ‘opinion’ of the examiner. Therefore the evaluated answer-book is also,
an ‘information’ under the RTI Act.,
12. Section 3 of RTI Act provides that subject to the provisions of this,
Act all citizens shall have the right to information. The term ‘right to,
information’ is defined in section 2(j) as the right to information accessible,
20,
under the Act which is held by or under the control of any public authority.,
"Having regard to section 3, the citizens have the right to access to all",
information held by or under the control of any public authority except those,
excluded or exempted under the Act. The object of the Act is to empower,
the citizens to fight against corruption and hold the Government and their,
"instrumentalities accountable to the citizens, by providing them access to",
information regarding functioning of every public authority. Certain,
safeguards have been built into the Act so that the revelation of information,
will not conflict with other public interests which include efficient operation,
"of the governments, optimum use of limited fiscal resources and",
preservation of confidential and sensitive information. The RTI Act provides,
access to information held by or under the control of public authorities and,
not in regard to information held by any private person. The Act provides,
the following exclusions by way of exemptions and exceptions (under,
"sections 8, 9 and 24) in regard to information held by public authorities:",
(i) Exclusion of the Act in entirety under section 24 to intelligence and,
security organizations specified in the Second Schedule even though,
"they may be “public authorities”, (except in regard to information",
with reference to allegations of corruption and human rights,
violations).,
21,
(ii) Exemption of the several categories of information enumerated in,
section 8(1) of the Act which no public authority is under an,
"obligation to give to any citizen, notwithstanding anything contained",
"in the Act [however, in regard to the information exempted under",
"clauses (d) and (e), the competent authority, and in regard to the",
"information excluded under clause (j), Central Public Information",
"Officer/State Public Information Officer/the Appellate Authority, may",
"direct disclosure of information, if larger public interest warrants or",
justifies the disclosure].,
(iii) If any request for providing access to information involves an,
"infringement of a copyright subsisting in a person other than the State,",
the Central/State Public Information Officer may reject the request,
under section 9 of RTI Act.,
"Having regard to the scheme of the RTI Act, the right of the citizens to",
"access any information held or under the control of any public authority,",
should be read in harmony with the exclusions/exemptions in the Act.,
"13. The examining bodies (Universities, Examination Boards, CBSC etc.)",
are neither security nor intelligence organisations and therefore the,
exemption under section 24 will not apply to them. The disclosure of,
information with reference to answer-books does not also involve,
infringement of any copyright and therefore section 9 will not apply.,
22,
"Resultantly, unless the examining bodies are able to demonstrate that the",
evaluated answer-books fall under any of the categories of exempted,
"‘information’ enumerated in clauses (a) to (j) of sub-section (1) section 8,",
they will be bound to provide access to the information and any applicant,
"can either inspect the document/record, take notes, extracts or obtain",
certified copies thereof.,
14. The examining bodies contend that the evaluated answer-books are,
"exempted from disclosure under section 8(1)(e) of the RTI Act, as they are",
‘information’ held in its fiduciary relationship. They fairly conceded that,
evaluated answer-books will not fall under any other exemptions in sub-,
section (1) of section 8. Every examinee will have the right to access his,
"evaluated answer-books, by either inspecting them or take certified copies",
"thereof, unless the evaluated answer-books are found to be exempted under",
section 8(1)(e) of the RTI Act.,
Re : Question (ii),
"15. In Maharashtra State Board, this Court was considering whether",
denial of re-evaluation of answer-books or denial of disclosure by way of,
"inspection of answer books, to an examinee, under Rule 104(1) and (3) of",
23,
"the Maharashtra Secondary and Higher Secondary Board Rules, 1977 was",
violative of principles of natural justice and violative of Articles 14 and 19,
of the Constitution of India. Rule 104(1) provided that no re-evaluation of,
the answer books shall be done and on an application of any candidate,
verification will be restricted to checking whether all the answers have been,
examined and that there is no mistake in the totalling of marks for each,
question in that subject and transferring marks correctly on the first cover,
page of the answer book. Rule 104(3) provided that no candidate shall claim,
or be entitled to re-evaluation of his answer-books or inspection of answer-,
books as they were treated as confidential. This Court while upholding the,
validity of Rule 104(3) held as under :,
“…. the “process of evaluation of answer papers or of subsequent,
verification of marks” under Clause (3) of Regulation 104 does not attract,
the principles of natural justice since no decision making process which,
brings about adverse civil consequences to the examinees in involved. The,
principles of natural justice cannot be extended beyond reasonable and,
rational limits and cannot be carried to such absurd lengths as to make it,
necessary that candidates who have taken a public examination should be,
allowed to participate in the process of evaluation of their performances or,
to verify the correctness of the evaluation made by the examiners by,
themselves conducting an inspection of the answer-books and determining,
whether there has been a proper and fair valuation of the answers by the,
"examiners.""",
So long as the body entrusted with the task of framing the rules or,
"regulations acts within the scope of the authority conferred on it, in the",
sense that the rules or regulations made by it have a rational nexus with,
"the object and purpose of the statute, the court should not concern itself",
with the wisdom or efficaciousness of such rules or regulations…. The,
Legislature and its delegate are the sole repositories of the power to decide,
what policy should be pursued in relation to matters covered by the Act …,
24,
and there is no scope for interference by the Court unless the particular,
provision impugned before it can be said to suffer from any legal,
"infirmity, in the sense of its being wholly beyond the scope of the",
regulation making power or its being inconsistent with any of the,
provisions of the parent enactment or in violation of any of the limitations,
imposed by the Constitution.,
"It was perfectly within the competence of the Board, rather it was its plain",
"duty, to apply its mind and decide as a matter of policy relating to the",
conduct of the examination as to whether disclosure and inspection of the,
"answer books should be allowed to the candidates, whether and to what",
extent verification of the result should be permitted after the results have,
already been announced and whether any right to claim revaluation of the,
answer books should be recognised or provided for. All these are,
undoubtedly matters which have an intimate nexus with the objects and,
"purposes of the enactment and are, therefore, with in the ambit of the",
general power to make regulations….”,
This Court held that Regulation 104(3) cannot be held to be unreasonable,
"merely because in certain stray instances, errors or irregularities had gone",
unnoticed even after verification of the concerned answer books according,
to the existing procedure and it was only after further scrutiny made either,
on orders of the court or in the wake of contentions raised in the petitions,
"filed before a court, that such errors or irregularities were ultimately",
discovered. This court reiterated the view that “the test of reasonableness is,
not applied in vacuum but in the context of life’s realities” and concluded,
"that realistically and practically, providing all the candidates inspection of",
their answer books or re-evaluation of the answer books in the presence of,
the candidates would not be feasible. Dealing with the contention that every,
25,
student is entitled to fair play in examination and receive marks matching his,
"performance, this court held :",
“What constitutes fair play depends upon the facts and circumstances,
relating to each particular given situation. If it is found that every possible,
precaution has been taken and all necessary safeguards provided to ensure,
that the answer books inclusive of supplements are kept in safe custody so,
as to eliminate the danger of their being tampered with and that the,
evaluation is done by the examiners applying uniform standards with,
checks and crosschecks at different stages and that measures for detection,
"of malpractice, etc. have also been effectively adopted, in such cases it",
"will not be correct on the part of the Courts to strike down, the provision",
prohibiting revaluation on the ground that it violates the rules of fair play.,
It appears that the procedure evolved by the Board for ensuring fairness,
and accuracy in evaluation of the answer books has made the system as,
fool proof as can be possible and is entirely satisfactory. The Board is a,
very responsible body. The candidates have taken the examination with,
full awareness of the provisions contained in the Regulations and in the,
declaration made in the form of application for admission to the,
examination they have solemnly stated that they fully agree to abide by the,
"regulations issued by the Board. In the circumstances, when we find that",
"all safeguards against errors and malpractices have been provided for,",
there cannot be said to be any denial of fair play to the examinees by,
reason of the prohibition against asking for revaluation…. “,
This Court concluded that if inspection and verification in the presence of,
"the candidates, or revaluation, have to be allowed as of right, it may lead to",
"gross and indefinite uncertainty, particularly in regard to the relative ranking",
"etc. of the candidate, besides leading to utter confusion on account of the",
enormity of the labour and time involved in the process. This court,
concluded :,
26,
“… the Court should be extremely reluctant to substitute its own views as,
"to what is wise, prudent and proper in relation to academic matters in",
preference to those formulated by professional men possessing technical,
expertise and rich experience of actual day-to-day working of educational,
institutions and the departments controlling them. It will be wholly wrong,
for the court to make a pedantic and purely idealistic approach to the,
"problems of this nature, isolated from the actual realities and grass root",
problems involved in the working of the system and unmindful of the,
consequences which would emanate if a purely idealistic view as opposed,
to a pragmatic one were to be propounded.”,
16. The above principles laid down in Maharashtra State Board have,
"been followed and reiterated in several decisions of this Court, some of",
which are referred to in para (6) above. But the principles laid down in,
decisions such as Maharashtra State Board depend upon the provisions of,
the rules and regulations of the examining body. If the rules and regulations,
"of the examining body provide for re-evaluation, inspection or disclosure of",
"the answer-books, then none of the principles in Maharashtra State Board or",
"other decisions following it, will apply or be relevant. There has been a",
gradual change in trend with several examining bodies permitting inspection,
and disclosure of the answer-books.,
17. It is thus now well settled that a provision barring inspection or,
disclosure of the answer-books or re-evaluation of the answer-books and,
restricting the remedy of the candidates only to re-totalling is valid and,
"binding on the examinee. In the case of CBSE, the provisions barring re-",
27,
"evaluation and inspection contained in Bye-law No.61, are akin to Rule 104",
considered in Maharashtra State Board. As a consequence if an examination,
is governed only by the rules and regulations of the examining body which,
"bar inspection, disclosure or re-evaluation, the examinee will be entitled",
only for re-totalling by checking whether all the answers have been,
evaluated and further checking whether there is no mistake in totaling of,
marks for each question and marks have been transferred correctly to the,
"title (abstract) page. The position may however be different, if there is a",
"superior statutory right entitling the examinee, as a citizen to seek access to",
"the answer books, as information.",
"18. In these cases, the High Court has rightly denied the prayer for re-",
evaluation of answer-books sought by the candidates in view of the bar,
contained in the rules and regulations of the examining bodies. It is also not,
a relief available under the RTI Act. Therefore the question whether re-,
"evaluation should be permitted or not, does not arise for our consideration.",
What arises for consideration is the question whether the examinee is,
entitled to inspect his evaluated answer-books or take certified copies,
"thereof. This right is claimed by the students, not with reference to the rules",
"or bye-laws of examining bodies, but under the RTI Act which enables them",
28,
and entitles them to have access to the answer-books as ‘information’ and,
inspect them and take certified copies thereof. Section 22 of RTI Act,
"provides that the provisions of the said Act will have effect, notwithstanding",
anything inconsistent therewith contained in any other law for the time being,
in force. Therefore the provisions of the RTI Act will prevail over the,
provisions of the bye-laws/rules of the examining bodies in regard to,
"examinations. As a result, unless the examining body is able to demonstrate",
that the answer-books fall under the exempted category of information,
"described in clause (e) of section 8(1) of RTI Act, the examining body will",
be bound to provide access to an examinee to inspect and take copies of his,
"evaluated answer-books, even if such inspection or taking copies is barred",
under the rules/bye-laws of the examining body governing the examinations.,
"Therefore, the decision of this Court in Maharashtra State Board (supra)",
"and the subsequent decisions following the same, will not affect or interfere",
with the right of the examinee seeking inspection of answer-books or taking,
certified copies thereof.,
Re : Question (iii),
19. Section 8(1) enumerates the categories of information which are,
exempted from disclosure under the provisions of the RTI Act. The,
29,
examining bodies rely upon clause (e) of section 8(1) which provides that,
"there shall be no obligation on any public authority to give any citizen,",
information available to it in its fiduciary relationship. This exemption is,
subject to the condition that if the competent authority (as defined in section,
2(e) of RTI Act) is satisfied that the larger public interest warrants the,
"disclosure of such information, the information will have to be disclosed.",
Therefore the question is whether the examining body holds the evaluated,
answer-books in its fiduciary relationship.,
20. The term ‘fiduciary’ and ‘fiduciary relationship’ refer to different,
"capacities and relationship, involving a common duty or obligation.",
"20.1) Black’s Law Dictionary (7th Edition, Page 640) defines ‘fiduciary",
relationship’ thus:,
“A relationship in which one person is under a duty to act for the benefit,
of the other on matters within the scope of the relationship. Fiduciary,
"relationships – such as trustee-beneficiary, guardian-ward, agent-principal,",
and attorney-client – require the highest duty of care. Fiduciary,
relationships usually arise in one of four situations : (1) when one person,
"places trust in the faithful integrity of another, who as a result gains",
"superiority or influence over the first, (2) when one person assumes",
"control and responsibility over another, (3) when one person has a duty to",
act for or give advice to another on matters falling within the scope of the,
"relationship, or (4) when there is a specific relationship that has",
"traditionally been recognized as involving fiduciary duties, as with a",
lawyer and a client or a stockbroker and a customer.”,
30,
20.2) The American Restatements (Trusts and Agency) define ‘fiduciary’ as,
one whose intention is to act for the benefit of another as to matters relevant,
to the relation between them. The Corpus Juris Secundum (Vol. 36A page,
381) attempts to define fiduciary thus :,
“A general definition of the word which is sufficiently comprehensive to,
"embrace all cases cannot well be given. The term is derived from the civil,",
"or Roman, law. It connotes the idea of trust or confidence, contemplates",
"good faith, rather than legal obligation, as the basis of the transaction,",
"refers to the integrity, the fidelity, of the party trusted, rather than his",
"credit or ability, and has been held to apply to all persons who occupy a",
"position of peculiar confidence toward others, and to include those",
informal relations which exist whenever one party trusts and relies on,
"another, as well as technical fiduciary relations.",
"The word ‘fiduciary,’ as a noun, means one who holds a thing in trust for",
"another, a trustee, a person holding the character of a trustee, or a",
"character analogous to that of a trustee, with respect to the trust and",
confidence involved in it and the scrupulous good faith and candor which,
"it requires; a person having the duty, created by his undertaking, to act",
primarily for another’s benefit in matters connected with such,
"undertaking. Also more specifically, in a statute, a guardian, trustee,",
"executor, administrator, receiver, conservator, or any person acting in any",
"fiduciary capacity for any person, trust, or estate. Some examples of what,",
"in particular connections, the term has been held to include and not to",
include are set out in the note.”,
"20.3) Words and Phrases, Permanent Edition (Vol. 16A, Page 41) defines",
‘fiducial relation’ thus :,
“There is a technical distinction between a ‘fiducial relation’ which is,
"more correctly applicable to legal relationships between parties, such as",
"guardian and ward, administrator and heirs, and other similar",
"relationships, and ‘confidential relation’ which includes the legal",
"relationships, and also every other relationship wherein confidence is",
rightly reposed and is exercised.,
"Generally, the term ‘fiduciary’ applies to any person who occupies a",
position of peculiar confidence towards another. It refers to integrity and,
31,
"fidelity. It contemplates fair dealing and good faith, rather than legal",
"obligation, as the basis of the transaction. The term includes those",
informal relations which exist whenever one party trusts and relies upon,
"another, as well as technical fiduciary relations.”",
20.4) In Bristol and West Building Society vs. Mothew [1998 Ch. 1] the term,
fiduciary was defined thus :,
“A fiduciary is someone who has undertaken to act for and on behalf of,
another in a particular matter in circumstances which give rise to a,
relationship of trust and confidence. The distinguishing obligation of a,
fiduciary is the obligation of loyalty….. A fiduciary must act in good faith;,
he must not make a profit out of his trust; he must not place himself in a,
position where his duty and his interest may conflict; he may not act for,
his own benefit or the benefit of a third person without the informed,
consent of his principal.”,
"20.5) In Wolf vs. Superior Court [2003 (107) California Appeals, 4th 25] the",
California Court of Appeals defined fiduciary relationship as under :,
“any relationship existing between the parties to the transaction where one,
of the parties is duty bound to act with utmost good faith for the benefit of,
the other party. Such a relationship ordinarily arises where confidence is,
"reposed by one person in the integrity of another, and in such a relation the",
"party in whom the confidence is reposed, if he voluntarily accepts or",
"assumes to accept the confidence, can take no advantage from his acts",
relating to the interests of the other party without the latter’s knowledge,
and consent.”,
21. The term ‘fiduciary’ refers to a person having a duty to act for the,
"benefit of another, showing good faith and condour, where such other person",
reposes trust and special confidence in the person owing or discharging the,
duty. The term ‘fiduciary relationship’ is used to describe a situation or,
32,
transaction where one person (beneficiary) places complete confidence in,
"another person (fiduciary) in regard to his affairs, business or transaction/s.",
The term also refers to a person who holds a thing in trust for another,
(beneficiary). The fiduciary is expected to act in confidence and for the,
"benefit and advantage of the beneficiary, and use good faith and fairness in",
dealing with the beneficiary or the things belonging to the beneficiary. If the,
"beneficiary has entrusted anything to the fiduciary, to hold the thing in trust",
"or to execute certain acts in regard to or with reference to the entrusted thing,",
the fiduciary has to act in confidence and expected not to disclose the thing,
or information to any third party. There are also certain relationships where,
both the parties have to act in a fiduciary capacity treating the other as the,
beneficiary. Examples of these are : a partner vis-à-vis another partner and,
an employer vis-à-vis employee. An employee who comes into possession,
of business or trade secrets or confidential information relating to the,
"employer in the course of his employment, is expected to act as a fiduciary",
"and cannot disclose it to others. Similarly, if on the request of the employer",
"or official superior or the head of a department, an employee furnishes his",
"personal details and information, to be retained in confidence, the employer,",
the official superior or departmental head is expected to hold such personal,
"information in confidence as a fiduciary, to be made use of or disclosed only",
33,
if the employee’s conduct or acts are found to be prejudicial to the employer.,
"22. In a philosophical and very wide sense, examining bodies can be said",
"to act in a fiduciary capacity, with reference to students who participate in an",
"examination, as a government does while governing its citizens or as the",
present generation does with reference to the future generation while,
preserving the environment. But the words ‘information available to a,
person in his fiduciary relationship’ are used in section 8(1)(e) of RTI Act in,
"its normal and well recognized sense, that is to refer to persons who act in a",
"fiduciary capacity, with reference to a specific beneficiary or beneficiaries",
who are to be expected to be protected or benefited by the actions of the,
"fiduciary – a trustee with reference to the beneficiary of the trust, a guardian",
"with reference to a minor/physically/infirm/mentally challenged, a parent",
"with reference to a child, a lawyer or a chartered accountant with reference",
"to a client, a doctor or nurse with reference to a patient, an agent with",
"reference to a principal, a partner with reference to another partner, a",
"director of a company with reference to a share-holder, an executor with",
"reference to a legatee, a receiver with reference to the parties to a lis, an",
employer with reference to the confidential information relating to the,
"employee, and an employee with reference to business dealings/transaction",
of the employer. We do not find that kind of fiduciary relationship between,
34,
"the examining body and the examinee, with reference to the evaluated",
"answer-books, that come into the custody of the examining body.",
23. The duty of examining bodies is to subject the candidates who have,
completed a course of study or a period of training in accordance with its,
"curricula, to a process of verification/examination/testing of their",
"knowledge, ability or skill, or to ascertain whether they can be said to have",
successfully completed or passed the course of study or training. Other,
specialized Examining Bodies may simply subject candidates to a process of,
"verification by an examination, to find out whether such person is suitable",
"for a particular post, job or assignment. An examining body, if it is a public",
"authority entrusted with public functions, is required to act fairly,",
"reasonably, uniformly and consistently for public good and in public",
interest. This Court has explained the role of an examining body in regard to,
the process of holding examination in the context of examining whether it,
"amounts to ‘service’ to a consumer, in Bihar School Examination Board vs.",
"Suresh Prasad Sinha – (2009) 8 SCC 483, in the following manner:",
"“The process of holding examinations, evaluating answer scripts,",
declaring results and issuing certificates are different stages of a single,
statutory non-commercial function. It is not possible to divide this,
function as partly statutory and partly administrative. When the,
Examination Board conducts an examination in discharge of its statutory,
"function, it does not offer its ""services"" to any candidate. Nor does a",
35,
"student who participates in the examination conducted by the Board, hires",
or avails of any service from the Board for a consideration. On the other,
"hand, a candidate who participates in the examination conducted by the",
"Board, is a person who has undergone a course of study and who requests",
the Board to test him as to whether he has imbibed sufficient knowledge to,
be fit to be declared as having successfully completed the said course of,
"education; and if so, determine his position or rank or competence vis-a-",
vis other examinees. The process is not therefore availment of a service by,
"a student, but participation in a general examination conducted by the",
Board to ascertain whether he is eligible and fit to be considered as having,
successfully completed the secondary education course. The examination,
fee paid by the student is not the consideration for availment of any,
"service, but the charge paid for the privilege of participation in the",
examination.……… The fact that in the course of conduct of the,
"examination, or evaluation of answer-scripts, or furnishing of mark-books",
"or certificates, there may be some negligence, omission or deficiency,",
"does not convert the Board into a service-provider for a consideration, nor",
convert the examinee into a consumer ………”,
It cannot therefore be said that the examining body is in a fiduciary,
relationship either with reference to the examinee who participates in the,
examination and whose answer-books are evaluated by the examining body.,
24. We may next consider whether an examining body would be entitled,
"to claim exemption under section 8(1)(e) of the RTI Act, even assuming that",
it is in a fiduciary relationship with the examinee. That section provides that,
"notwithstanding anything contained in the Act, there shall be no obligation",
to give any citizen information available to a person in his fiduciary,
"relationship. This would only mean that even if the relationship is fiduciary,",
the exemption would operate in regard to giving access to the information,
36,
"held in fiduciary relationship, to third parties. There is no question of the",
"fiduciary withholding information relating to the beneficiary, from the",
beneficiary himself. One of the duties of the fiduciary is to make thorough,
disclosure of all relevant facts of all transactions between them to the,
"beneficiary, in a fiduciary relationship. By that logic, the examining body, if",
"it is in a fiduciary relationship with an examinee, will be liable to make a full",
disclosure of the evaluated answer-books to the examinee and at the same,
"time, owe a duty to the examinee not to disclose the answer-books to anyone",
"else. If A entrusts a document or an article to B to be processed, on",
"completion of processing, B is not expected to give the document or article",
to anyone else but is bound to give the same to A who entrusted the,
"document or article to B for processing. Therefore, if a relationship of",
fiduciary and beneficiary is assumed between the examining body and the,
"examinee with reference to the answer-book, section 8(1)(e) would operate",
as an exemption to prevent access to any third party and will not operate as a,
"bar for the very person who wrote the answer-book, seeking inspection or",
disclosure of it.,
25. An evaluated answer book of an examinee is a combination of two,
different ‘informations’. The first is the answers written by the examinee and,
37,
second is the marks/assessment by the examiner. When an examinee seeks,
inspection of his evaluated answer-books or seeks a certified copy of the,
"evaluated answer-book, the information sought by him is not really the",
"answers he has written in the answer-books (which he already knows), nor",
the total marks assigned for the answers (which has been declared). What he,
"really seeks is the information relating to the break-up of marks, that is, the",
specific marks assigned to each of his answers. When an examinee seeks,
"‘information’ by inspection/certified copies of his answer-books, he knows",
the contents thereof being the author thereof. When an examinee is,
"permitted to examine an answer-book or obtain a certified copy, the",
examining body is not really giving him some information which is held by,
"it in trust or confidence, but is only giving him an opportunity to read what",
he had written at the time of examination or to have a copy of his answers.,
"Therefore, in furnishing the copy of an answer-book, there is no question of",
"breach of confidentiality, privacy, secrecy or trust. The real issue therefore is",
not in regard to the answer-book but in regard to the marks awarded on,
evaluation of the answer-book. Even here the total marks given to the,
examinee in regard to his answer-book are already declared and known to,
the examinee. What the examinee actually wants to know is the break-up of,
"marks given to him, that is how many marks were given by the examiner to",
38,
each of his answers so that he can assess how is performance has been,
evaluated and whether the evaluation is proper as per his hopes and,
"expectations. Therefore, the test for finding out whether the information is",
"exempted or not, is not in regard to the answer book but in regard to the",
evaluation by the examiner.,
26. This takes us to the crucial issue of evaluation by the examiner. The,
examining body engages or employs hundreds of examiners to do the,
evaluation of thousands of answer books. The question is whether the,
information relating to the ‘evaluation’ (that is assigning of marks) is held,
by the examining body in a fiduciary relationship. The examining bodies,
contend that even if fiduciary relationship does not exist with reference to,
"the examinee, it exists with reference to the examiner who evaluates the",
answer-books. On a careful examination we find that this contention has no,
merit. The examining body entrusts the answer-books to an examiner for,
evaluation and pays the examiner for his expert service. The work of,
evaluation and marking the answer-book is an assignment given by the,
examining body to the examiner which he discharges for a consideration.,
"Sometimes, an examiner may assess answer-books, in the course of his",
"employment, as a part of his duties without any specific or special",
39,
remuneration. In other words the examining body is the ‘principal’ and the,
"examiner is the agent entrusted with the work, that is, evaluation of answer-",
"books. Therefore, the examining body is not in the position of a fiduciary",
"with reference to the examiner. On the other hand, when an answer-book is",
"entrusted to the examiner for the purpose of evaluation, for the period the",
answer-book is in his custody and to the extent of the discharge of his,
"functions relating to evaluation, the examiner is in the position of a fiduciary",
with reference to the examining body and he is barred from disclosing the,
contents of the answer-book or the result of evaluation of the answer-book to,
anyone other than the examining body. Once the examiner has evaluated the,
"answer books, he ceases to have any interest in the evaluation done by him.",
"He does not have any copy-right or proprietary right, or confidentiality right",
in regard to the evaluation. Therefore it cannot be said that the examining,
"body holds the evaluated answer books in a fiduciary relationship, qua the",
examiner.,
"27. We, therefore, hold that an examining body does not hold the",
evaluated answer-books in a fiduciary relationship. Not being information,
"available to an examining body in its fiduciary relationship, the exemption",
under section 8(1)(e) is not available to the examining bodies with reference,
to evaluated answer-books. As no other exemption under section 8 is,
40,
"available in respect of evaluated answer books, the examining bodies will",
have to permit inspection sought by the examinees.,
Re : Question (iv),
28. When an examining body engages the services of an examiner to,
"evaluate the answer-books, the examining body expects the examiner not to",
disclose the information regarding evaluation to anyone other than the,
examining body. Similarly the examiner also expects that his name and,
particulars would not be disclosed to the candidates whose answer-books are,
"evaluated by him. In the event of such information being made known, a",
disgruntled examinee who is not satisfied with the evaluation of the answer,
"books, may act to the prejudice of the examiner by attempting to endanger",
"his physical safety. Further, any apprehension on the part of the examiner",
"that there may be danger to his physical safety, if his identity becomes",
"known to the examinees, may come in the way of effective discharge of his",
"duties. The above applies not only to the examiner, but also to the",
"scrutiniser, co-ordinator, and head-examiner who deal with the answer book.",
The answer book usually contains not only the signature and code number of,
"the examiner, but also the signatures and code number of the scrutiniser/co-",
ordinator/head examiner. The information as to the names or particulars of,
the examiners/co-ordinators/scrutinisers/head examiners are therefore,
41,
"exempted from disclosure under section 8(1)(g) of RTI Act, on the ground",
"that if such information is disclosed, it may endanger their physical safety.",
"Therefore, if the examinees are to be given access to evaluated answer-",
"books either by permitting inspection or by granting certified copies, such",
access will have to be given only to that part of the answer-book which does,
not contain any information or signature of the examiners/co-,
"ordinators/scrutinisers/head examiners, exempted from disclosure under",
section 8(1)(g) of RTI Act. Those portions of the answer-books which,
contain information regarding the examiners/co-ordinators/scrutinisers/head,
examiners or which may disclose their identity with reference to signature or,
"initials, shall have to be removed, covered, or otherwise severed from the",
"non-exempted part of the answer-books, under section 10 of RTI Act.",
29. The right to access information does not extend beyond the period,
during which the examining body is expected to retain the answer-books. In,
"the case of CBSE, the answer-books are required to be maintained for a",
period of three months and thereafter they are liable to be disposed,
of/destroyed. Some other examining bodies are required to keep the answer-,
books for a period of six months. The fact that right to information is,
available in regard to answer-books does not mean that answer-books will,
have to be maintained for any longer period than required under the rules,
42,
and regulations of the public authority. The obligation under the RTI Act is,
to make available or give access to existing information or information,
which is expected to be preserved or maintained. If the rules and regulations,
governing the functioning of the respective public authority require,
"preservation of the information for only a limited period, the applicant for",
information will be entitled to such information only if he seeks the,
"information when it is available with the public authority. For example, with",
"reference to answer-books, if an examinee makes an application to CBSE for",
inspection or grant of certified copies beyond three months (or six months or,
such other period prescribed for preservation of the records in regard to,
"other examining bodies) from the date of declaration of results, the",
application could be rejected on the ground that such information is not,
available. The power of the Information Commission under section 19(8) of,
the RTI Act to require a public authority to take any such steps as may be,
"necessary to secure compliance with the provision of the Act, does not",
"include a power to direct the public authority to preserve the information, for",
any period larger than what is provided under the rules and regulations of the,
public authority.,
"30. On behalf of the respondents/examinees, it was contended that having",
"regard to sub-section (3) of section 8 of RTI Act, there is an implied duty on",
43,
the part of every public authority to maintain the information for a minimum,
period of twenty years and make it available whenever an application was,
made in that behalf. This contention is based on a complete misreading and,
misunderstanding of section 8(3). The said sub-section nowhere provides,
that records or information have to be maintained for a period of twenty,
years. The period for which any particular records or information has to be,
maintained would depend upon the relevant statutory rule or regulation of,
the public authority relating to the preservation of records. Section 8(3),
"provides that information relating to any occurrence, event or matters which",
has taken place and occurred or happened twenty years before the date on,
"which any request is made under section 6, shall be provided to any person",
making a request. This means that where any information required to be,
maintained and preserved for a period beyond twenty years under the rules,
"of the public authority, is exempted from disclosure under any of the",
"provisions of section 8(1) of RTI Act, then, notwithstanding such",
"exemption, access to such information shall have to be provided by",
"disclosure thereof, after a period of twenty years except where they relate to",
"information falling under clauses (a), (c) and (i) of section 8(1). In other",
"words, section 8(3) provides that any protection against disclosure that may",
"be available, under clauses (b), (d) to (h) and (j) of section 8(1) will cease to",
44,
be available after twenty years in regard to records which are required to be,
preserved for more than twenty years. Where any record or information is,
required to be destroyed under the rules and regulations of a public authority,
"prior to twenty years, section 8(3) will not prevent destruction in accordance",
with the Rules. Section 8(3) of RTI Act is not therefore a provision requiring,
"all ‘information’ to be preserved and maintained for twenty years or more,",
nor does it override any rules or regulations governing the period for which,
"the record, document or information is required to be preserved by any",
public authority.,
31. The effect of the provisions and scheme of the RTI Act is to divide,
‘information’ into the three categories. They are :,
(i) Information which promotes transparency and accountability in,
"the working of every public authority, disclosure of which may",
also help in containing or discouraging corruption (enumerated in,
clauses (b) and (c) of section 4(1) of RTI Act).,
(ii) Other information held by public authority (that is all information,
other than those falling under clauses (b) and (c) of section 4(1) of,
RTI Act).,
(iii) Information which is not held by or under the control of any,
public authority and which cannot be accessed by a public,
authority under any law for the time being in force.,
Information under the third category does not fall within the scope of RTI,
"Act. Section 3 of RTI Act gives every citizen, the right to ‘information’ held",
45,
"by or under the control of a public authority, which falls either under the first",
or second category. In regard to the information falling under the first,
"category, there is also a special responsibility upon public authorities to suo",
moto publish and disseminate such information so that they will be easily,
and readily accessible to the public without any need to access them by,
having recourse to section 6 of RTI Act. There is no such obligation to,
publish and disseminate the other information which falls under the second,
category.,
"32. The information falling under the first category, enumerated in",
sections 4(1)(b) & (c) of RTI Act are extracted below :,
“4. Obligations of public authorities.-(1) Every public authority shall--,
(a) xxxxxx,
(b) publish within one,
"hundred and twenty days from the enactment of this Act,--",
"(i) the particulars of its organisation, functions and duties;",
(ii) the powers and duties of its officers and employees;,
(iii) the procedure followed in the decision making,
"process, including channels of supervision and",
accountability;,
(iv) the norms set by it for the discharge of its functions;,
"(v) the rules, regulations, instructions, manuals and records,",
held by it or under its control or used by its employees for,
discharging its functions;,
(vi) a statement of the categories of documents that are held,
by it or under its control;,
46,
(vii) the particulars of any arrangement that exists for,
"consultation with, or representation by, the members of the",
public in relation to the formulation of its policy or,
implementation thereof;,
"(viii) a statement of the boards, councils, committees and",
other bodies consisting of two or more persons constituted,
"as its part or for the purpose of its advice, and as to whether",
"meetings of those boards, councils, committees and other",
"bodies are open to the public, or the minutes of such",
meetings are accessible for public;,
(ix) a directory of its officers and employees;,
(x) the monthly remuneration received by each of its,
"officers and employees, including the system of",
compensation as provided in its regulations;,
"(xi) the budget allocated to each of its agency, indicating",
"the particulars of all plans, proposed expenditures and",
reports on disbursements made;,
"(xii) the manner of execution of subsidy programmes,",
including the amounts allocated and the details of,
beneficiaries of such programmes;,
"(xiii) particulars of recipients of concessions, permits or",
authorisations granted by it;,
"(xiv) details in respect of the information, available to or",
"held by it, reduced in an electronic form;",
(xv) the particulars of facilities available to citizens for,
"obtaining information, including the working hours of a",
"library or reading room, if maintained for public use;",
"(xvi) the names, designations and other particulars of the",
Public Information Officers;,
(xvii) such other information as may be prescribed; and,
thereafter update these publications every year;,
(c) publish all relevant facts,
while formulating important policies or announcing the decisions,
which affect public;,
(emphasis supplied),
47,
"Sub-sections (2), (3) and (4) of section 4 relating to dissemination of",
information enumerated in sections 4(1)(b) & (c) are extracted below:,
“(2) It shall be a constant endeavour of every public,
authority to take steps in accordance with the requirements of clause (b) of,
sub-section (1) to provide as much information suo motu to the public,
"at regular intervals through various means of communications,",
"including internet, so that the public have minimum resort to the use",
of this Act to obtain information.,
"(3) For the purposes of sub-section (1), every",
information shall be disseminated widely and in such form and,
manner which is easily accessible to the public.,
(4) All materials shall be disseminated taking into,
"consideration the cost effectiveness, local language and the most effective",
method of communication in that local area and the information should be,
"easily accessible, to the extent possible in electronic format with the",
"Central Public Information Officer or State Public Information Officer, as",
"the case may be, available free or at such cost of the medium or the print",
cost price as may be prescribed.,
"Explanation.--For the purposes of sub-sections (3) and (4), ""disseminated""",
means making known or communicated the information to the public,
"through notice boards, newspapers, public announcements, media",
"broadcasts, the internet or any other means, including inspection of offices",
of any public authority.”,
(emphasis supplied),
33. Some High Courts have held that section 8 of RTI Act is in the nature,
of an exception to section 3 which empowers the citizens with the right to,
"information, which is a derivative from the freedom of speech; and that",
"therefore section 8 should be construed strictly, literally and narrowly. This",
may not be the correct approach. The Act seeks to bring about a balance,
"between two conflicting interests, as harmony between them is essential for",
preserving democracy. One is to bring about transparency and accountability,
by providing access to information under the control of public authorities.,
48,
"The other is to ensure that the revelation of information, in actual practice,",
does not conflict with other public interests which include efficient operation,
"of the governments, optimum use of limited fiscal resources and",
preservation of confidentiality of sensitive information. The preamble to the,
Act specifically states that the object of the Act is to harmonise these two,
conflicting interests. While sections 3 and 4 seek to achieve the first,
"objective, sections 8, 9, 10 and 11 seek to achieve the second objective.",
"Therefore when section 8 exempts certain information from being disclosed,",
"it should not be considered to be a fetter on the right to information, but as",
an equally important provision protecting other public interests essential for,
the fulfilment and preservation of democratic ideals.,
34. When trying to ensure that the right to information does not conflict,
with several other public interests (which includes efficient operations of the,
"governments, preservation of confidentiality of sensitive information,",
"optimum use of limited fiscal resources, etc.), it is difficult to visualise and",
enumerate all types of information which require to be exempted from,
disclosure in public interest. The legislature has however made an attempt to,
do so. The enumeration of exemptions is more exhaustive than the,
enumeration of exemptions attempted in the earlier Act that is section 8 of,
"Freedom to Information Act, 2002. The Courts and Information",
49,
Commissions enforcing the provisions of RTI Act have to adopt a purposive,
"construction, involving a reasonable and balanced approach which",
"harmonises the two objects of the Act, while interpreting section 8 and the",
other provisions of the Act.,
"35. At this juncture, it is necessary to clear some misconceptions about",
the RTI Act. The RTI Act provides access to all information that is,
available and existing. This is clear from a combined reading of section 3,
and the definitions of ‘information’ and ‘right to information’ under clauses,
(f) and (j) of section 2 of the Act. If a public authority has any information in,
"the form of data or analysed data, or abstracts, or statistics, an applicant may",
"access such information, subject to the exemptions in section 8 of the Act.",
But where the information sought is not a part of the record of a public,
"authority, and where such information is not required to be maintained under",
"any law or the rules or regulations of the public authority, the Act does not",
"cast an obligation upon the public authority, to collect or collate such non-",
available information and then furnish it to an applicant. A public authority,
is also not required to furnish information which require drawing of,
inferences and/or making of assumptions. It is also not required to provide,
"‘advice’ or ‘opinion’ to an applicant, nor required to obtain and furnish any",
‘opinion’ or ‘advice’ to an applicant. The reference to ‘opinion’ or ‘advice’,
50,
"in the definition of ‘information’ in section 2(f) of the Act, only refers to",
such material available in the records of the public authority. Many public,
"authorities have, as a public relation exercise, provide advice, guidance and",
opinion to the citizens. But that is purely voluntary and should not be,
confused with any obligation under the RTI Act.,
36. Section 19(8) of RTI Act has entrusted the Central/State Information,
"Commissions, with the power to require any public authority to take any",
such steps as may be necessary to secure the compliance with the provisions,
"of the Act. Apart from the generality of the said power, clause (a) of section",
"19(8) refers to six specific powers, to implement the provision of the Act.",
Sub-clause (i) empowers a Commission to require the public authority to,
provide access to information if so requested in a particular ‘form’ (that is,
"either as a document, micro film, compact disc, pendrive, etc.). This is to",
secure compliance with section 7(9) of the Act. Sub-clause (ii) empowers a,
Commission to require the public authority to appoint a Central Public,
Information Officer or State Public Information Officer. This is to secure,
compliance with section 5 of the Act. Sub-clause (iii) empowers the,
Commission to require a public authority to publish certain information or,
categories of information. This is to secure compliance with section 4(1) and,
(2) of RTI Act. Sub-clause (iv) empowers a Commission to require a public,
51,
authority to make necessary changes to its practices relating to the,
"maintenance, management and destruction of the records. This is to secure",
compliance with clause (a) of section 4(1) of the Act. Sub-clause (v),
empowers a Commission to require the public authority to increase the,
training for its officials on the right to information. This is to secure,
"compliance with sections 5, 6 and 7 of the Act. Sub-clause (vi) empowers a",
Commission to require the public authority to provide annual reports in,
regard to the compliance with clause (b) of section 4(1). This is to ensure,
compliance with the provisions of clause (b) of section 4(1) of the Act. The,
power under section 19(8) of the Act however does not extend to requiring a,
public authority to take any steps which are not required or contemplated to,
secure compliance with the provisions of the Act or to issue directions,
beyond the provisions of the Act. The power under section 19(8) of the Act,
is intended to be used by the Commissions to ensure compliance with the,
"Act, in particular ensure that every public authority maintains its records",
duly catalogued and indexed in the manner and in the form which facilitates,
"the right to information and ensure that the records are computerized, as",
required under clause (a) of section 4(1) of the Act; and to ensure that the,
information enumerated in clauses (b) and (c) of sections 4(1) of the Act are,
"published and disseminated, and are periodically updated as provided in sub-",
52,
sections (3) and (4) of section 4 of the Act. If the ‘information’ enumerated,
in clause (b) of section 4(1) of the Act are effectively disseminated (by,
"publications in print and on websites and other effective means), apart from",
"providing transparency and accountability, citizens will be able to access",
relevant information and avoid unnecessary applications for information,
under the Act.,
37. The right to information is a cherished right. Information and right to,
information are intended to be formidable tools in the hands of responsible,
citizens to fight corruption and to bring in transparency and accountability.,
The provisions of RTI Act should be enforced strictly and all efforts should,
be made to bring to light the necessary information under clause (b) of,
section 4(1) of the Act which relates to securing transparency and,
accountability in the working of public authorities and in discouraging,
"corruption. But in regard to other information,(that is information other than",
"those enumerated in section 4(1)(b) and (c) of the Act), equal importance",
and emphasis are given to other public interests (like confidentiality of,
"sensitive information, fidelity and fiduciary relationships, efficient operation",
"of governments, etc.). Indiscriminate and impractical demands or directions",
under RTI Act for disclosure of all and sundry information (unrelated to,
transparency and accountability in the functioning of public authorities and,
53,
eradication of corruption) would be counter-productive as it will adversely,
affect the efficiency of the administration and result in the executive getting,
bogged down with the non-productive work of collecting and furnishing,
"information. The Act should not be allowed to be misused or abused, to",
"become a tool to obstruct the national development and integration, or to",
"destroy the peace, tranquility and harmony among its citizens. Nor should it",
be converted into a tool of oppression or intimidation of honest officials,
striving to do their duty. The nation does not want a scenario where 75% of,
the staff of public authorities spends 75% of their time in collecting and,
furnishing information to applicants instead of discharging their regular,
duties. The threat of penalties under the RTI Act and the pressure of the,
authorities under the RTI Act should not lead to employees of a public,
"authorities prioritising ‘information furnishing’, at the cost of their normal",
and regular duties.,
Conclusion,
"38. In view of the foregoing, the order of the High Court directing the",
examining bodies to permit examinees to have inspection of their answer,
"books is affirmed, subject to the clarifications regarding the scope of the RTI",
54,
Act and the safeguards and conditions subject to which ‘information’ should,
be furnished. The appeals are disposed of accordingly.,
……………………….J,
[R. V. Raveendran],
……………………….J,
[A. K. Patnaik],
New Delhi;,
"August 9, 2011.",
REPORTABLE,
IN THE SUPREME COURT OF INDIA,
CIVIL APPELLATE JURISDICTION,
SPECIAL LEAVE PETITION (CIVIL) NO.34868 OF 2009,
Khanapuram Gandaiah … Petitioner,
Vs.,
Administrative Officer & Ors. … Respondents,
O R D E R,
1. This special leave petition has been filed against the judgment and,
order dated 24.4.2009 passed in Writ Petition No.28810 of 2008 by the High,
Court of Andhra Pradesh by which the writ petition against the order of,
dismissal of the petitioner’s application and successive appeals under the,
"Right to Information Act, 2005 (hereinafter called the “RTI Act”) has been",
"dismissed. In the said petition, the direction was sought by the Petitioner to",
the Respondent No.1 to provide information as asked by him vide his,
application dated 15.11.2006 from the Respondent No.4 – a Judicial Officer,
"as for what reasons, the Respondent No.4 had decided his Miscellaneous",
Appeal dishonestly.,
2,
"2. The facts and circumstances giving rise to this case are, that the",
petitioner claimed to be in exclusive possession of the land in respect of,
"which civil suit No.854 of 2002 was filed before Additional Civil Judge,",
Ranga Reddy District praying for perpetual injunction by Dr. Mallikarjina,
"Rao against the petitioner and another, from entering into the suit land.",
Application filed for interim relief in the said suit stood dismissed. Being,
"aggrieved, the plaintiff therein preferred CMA No.185 of 2002 and the same",
was also dismissed. Two other suits were filed in respect of the same,
property impleading the Petitioner also as the defendant. In one of the suits,
"i.e. O.S. No.875 of 2003, the Trial Court granted temporary injunction",
"against the Petitioner. Being aggrieved, Petitioner preferred the CMA No.67",
"of 2005, which was dismissed by the Appellate Court – Respondent No.4",
vide order dated 10.8.2006.,
3. Petitioner filed an application dated 15.11.2006 under Section 6 of the,
RTI Act before the Administrative Officer-cum-Assistant State Public,
Information Officer (respondent no.1) seeking information to the queries,
mentioned therein. The said application was rejected vide order dated,
23.11.2006 and an appeal against the said order was also dismissed vide,
order dated 20.1.2007. Second Appeal against the said order was also,
3,
dismissed by the Andhra Pradesh State Information Commission vide order,
dated 20.11.2007. The petitioner challenged the said order before the High,
"Court, seeking a direction to the Respondent No.1 to furnish the information",
as under what circumstances the Respondent No.4 had passed the Judicial,
Order dismissing the appeal against the interim relief granted by the Trial,
Court. The Respondent No.4 had been impleaded as respondent by name.,
The Writ Petition had been dismissed by the High Court on the grounds that,
the information sought by the petitioner cannot be asked for under the RTI,
"Act. Thus, the application was not maintainable. More so, the judicial",
"officers are protected by the Judicial Officers’ Protection Act, 1850",
"(hereinafter called the “Act 1850”). Hence, this petition.",
"4. Mr. V. Kanagaraj, learned Senior Counsel appearing for the petitioner",
has submitted that right to information is a fundamental right of every,
citizen. The RTI Act does not provide for any special protection to the,
"Judges, thus petitioner has a right to know the reasons as to how the",
"Respondent No. 4 has decided his appeal in a particular manner. Therefore,",
the application filed by the petitioner was maintainable. Rejection of the,
application by the Respondent No. 1 and Appellate authorities rendered the,
petitioner remediless. Petitioner vide application dated 15.11.2006 had asked,
4,
as under what circumstances the Respondent No.4 ignored the written,
"arguments and additional written arguments, as the ignorance of the same",
"tantamount to judicial dishonesty, the Respondent No.4 omitted to examine",
the fabricated documents filed by the plaintiff; and for what reason the,
respondent no.4 omitted to examine the documents filed by the petitioner.,
Similar information had been sought on other points.,
"5. At the outset, it must be noted that the petitioner has not challenged",
"the order passed by the Respondent No. 4. Instead, he had filed the",
application under Section 6 of the RTI Act to know why and for what,
reasons Respondent No. 4 had come to a particular conclusion which was,
against the petitioner. The nature of the questions posed in the application,
was to the effect why and for what reason Respondent No. 4 omitted to,
examine certain documents and why he came to such a conclusion.,
"Altogether, the petitioner had sought answers for about ten questions raised",
in his application and most of the questions were to the effect as to why,
Respondent No. 4 had ignored certain documents and why he had not taken,
note of certain arguments advanced by the petitioner’s counsel.,
5,
6. Under the RTI Act “information” is defined under Section 2(f) which,
provides:,
"“information” means any material in any form, including",
"records, documents, memos, e-mails, opinions, advices, press",
"releases, circulars, orders, logbooks, contracts, report, papers,",
"samples, models, data material held in any electronic form and",
information relating to any private body which can be accessed,
by a public authority under any other law for the time being in,
force.”,
This definition shows that an applicant under Section 6 of the RTI Act can,
get any information which is already in existence and accessible to the,
"public authority under law. Of course, under the RTI Act an applicant is",
"entitled to get copy of the opinions, advices, circulars, orders, etc., but he",
"cannot ask for any information as to why such opinions, advices, circulars,",
"orders, etc. have been passed, especially in matters pertaining to judicial",
decisions. A judge speaks through his judgments or orders passed by him. If,
"any party feels aggrieved by the order/judgment passed by a judge, the",
remedy available to such a party is either to challenge the same by way of,
appeal or by revision or any other legally permissible mode. No litigant can,
be allowed to seek information as to why and for what reasons the judge had,
come to a particular decision or conclusion. A judge is not bound to explain,
later on for what reasons he had come to such a conclusion.,
6,
"7. Moreover, in the instant case, the petitioner submitted his application",
under Section 6 of the RTI Act before the Administrative Officer-cum-,
Assistant State Public Information Officer seeking information in respect of,
"the questions raised in his application. However, the Public Information",
Officer is not supposed to have any material which is not before him; or any,
information he could have obtained under law. Under Section 6 of the RTI,
"Act, an applicant is entitled to get only such information which can be",
accessed by the “public authority” under any other law for the time being in,
force. The answers sought by the petitioner in the application could not have,
been with the public authority nor could he have had access to this,
information and Respondent No. 4 was not obliged to give any reasons as to,
why he had taken such a decision in the matter which was before him. A,
judge cannot be expected to give reasons other than those that have been,
enumerated in the judgment or order. The application filed by the petitioner,
before the public authority is per se illegal and unwarranted. A judicial,
officer is entitled to get protection and the object of the same is not to protect,
"malicious or corrupt judges, but to protect the public from the dangers to",
which the administration of justice would be exposed if the concerned,
"judicial officers were subject to inquiry as to malice, or to litigation with",
those whom their decisions might offend. If anything is done contrary to,
7,
"this, it would certainly affect the independence of the judiciary. A judge",
should be free to make independent decisions.,
"8. As the petitioner has misused the provisions of the RTI Act, the High",
Court had rightly dismissed the writ petition.,
"9. In view of the above, the Special Leave Petition is dismissed",
accordingly.,
………………………….CJI.,
(K.G. BALAKRISHNAN),
…………………………….J.,
(Dr. B.S. CHAUHAN),
"New Delhi,",
"January 4, 2010",
1,
REPORTABLE,
IN THE SUPREME COURT OF INDIA,
CIVIL APPEALLATE JURISDICTION,
CIVIL APPEAL NO. 9017 OF 2013,
(Arising out of SLP (C) No.24290 of 2012),
Thalappalam Ser. Coop. Bank,
Ltd. and others Appellants,
Versus,
State of Kerala and others,
Respondents,
WITH,
"CIVIL APPEAL NOs. 9020, 9029 & 9023 OF 2013",
"(Arising out of SLP (C) No.24291 of 2012, 13796 and 13797",
of 2013),
J U D G M E N T,
"K.S. Radhakrishnan, J.",
1. Leave granted.,
"2. We are, in these appeals, concerned with the question",
whether a co-operative society registered under the Kerala,
"Co-operative Societies Act, 1969 (for short “the Societies",
Page 1,
2,
Act”) will fall within the definition of “public authority” under,
"Section 2(h) of the Right to Information Act, 2005 (for short",
“the RTI Act”) and be bound by the obligations to provide,
information sought for by a citizen under the RTI Act.,
"3. A Full Bench of the Kerala High Court, in its judgment",
"reported in AIR 2012 Ker 124, answered the question in the",
affirmative and upheld the Circular No.23 of 2006 dated,
"01.06.2006, issued by the Registrar of the Co-operative",
"Societies, Kerala stating that all the co-operative institutions",
"coming under the administrative control of the Registrar, are",
“public authorities” within the meaning of Section 2(h) of the,
RTI Act and obliged to provide information as sought for.,
The question was answered by the Full Bench in view of the,
conflicting views expressed by a Division Bench of the Kerala,
"High Court in Writ Appeal No.1688 of 2009, with an earlier",
judgment of the Division Bench reported in Thalapalam,
Service Co-operative Bank Ltd. v. Union of India AIR,
"2010 Ker 6, wherein the Bench took the view that the",
question as to whether a co-operative society will fall under,
Page 2,
3,
"Section 2(h) of the RTI Act is a question of fact, which will",
depend upon the question whether it is substantially,
"financed, directly or indirectly, by the funds provided by the",
"State Government which, the Court held, has to be decided",
depending upon the facts situation of each case.,
"4. Mr. K. Padmanabhan Nair, learned senior counsel",
appearing for some of the societies submitted that the views,
expressed by the Division Bench in Thalapalam Service,
"Co-operative Bank Ltd. (supra) is the correct view, which",
calls for our approval. Learned senior counsel took us,
through the various provisions of the Societies Act as well as,
of the RTI Act and submitted that the societies are,
autonomous bodies and merely because the officers,
functioning under the Societies Act have got supervisory,
control over the societies will not make the societies public,
authorities within the meaning of Section 2(h) of the RTI Act.,
Learned senior counsel also submitted that these societies,
"are not owned, controlled or substantially financed, directly",
"or indirectly, by the State Government. Learned senior",
Page 3,
4,
counsel also submitted that the societies are not statutory,
bodies and are not performing any public functions and will,
not come within the expression “state” within the meaning,
under Article 12 of the Constitution of India.,
"5. Mr. Ramesh Babu MR, learned counsel appearing for",
"the State, supported the reasoning of the impugned",
judgment and submitted that such a circular was issued by,
the Registrar taking into consideration the larger public,
interest so as to promote transparency and accountability in,
the working of every co-operative society in the State of,
Kerala. Reference was also made to various provisions of,
the Societies Act and submitted that those provisions would,
indicate that the Registrar has got all pervading control over,
"the societies, including audit, enquiry and inspection and the",
power to initiate surcharge proceedings. Power is also,
vested on the Registrar under Section 32 of the Societies Act,
to supersede the management of the society and to appoint,
an administrator. This would indicate that though societies,
"are body corporates, they are under the statutory control of",
Page 4,
5,
the Registrar of Co-operative Societies. Learned counsel,
submitted that in such a situation they fall under the,
definition of “pubic authority” within the meaning of Section,
"2(h) of the RTI Act. Shri Ajay, learned counsel appearing for",
"the State Information Commission, stated that the",
applicability of the RTI Act cannot be excluded in terms of,
the clear provision of the Act and they are to be interpreted,
to achieve the object and purpose of the Act. Learned,
counsel submitted that at any rate having regard to the,
"definition of “information” in Section 2(f) of the Act, the",
access to information in relation to Societies cannot be,
denied to a citizen.,
Facts:,
"6. We may, for the disposal of these appeals, refer to the",
facts pertaining to Mulloor Rural Co-operative Society Ltd. In,
"that case, one Sunil Kumar stated to have filed an",
application dated 8.5.2007 under the RTI Act seeking,
particulars relating to the bank accounts of certain members,
"of the society, which the society did not provide. Sunil",
Page 5,
6,
Kumar then filed a complaint dated 6.8.2007 to the State,
"Information Officer, Kerala who, in turn, addressed a letter",
dated 14.11.2007 to the Society stating that application filed,
"by Sunil Kumar was left unattended. Society, then, vide",
letter dated 24.11.2007 informed the applicant that the,
information sought for is “confidential in nature” and one,
"warranting “commercial confidence”. Further, it was also",
pointed out that the disclosure of the information has no,
relationship to any “public activity” and held by the society,
"in a “fiduciary capacity”. Society was, however, served with",
an order dated 16.1.2008 by the State Information,
"Commission, Kerala, stating that the Society has violated the",
mandatory provisions of Section 7(1) of the RTI Act,
rendering themselves liable to be punished under Section 20,
of the Act. State Information Officer is purported to have,
relied upon a circular No.23/2006 dated 01.06.2006 issued,
"by the Registrar, Co-operative Societies bringing in all",
societies under the administrative control of the Registrar of,
"Co-operative Societies, as “public authorities” under Section",
2(h) of the RTI Act.,
Page 6,
7,
7. Mulloor Co-operative Society then filed Writ Petition,
"No.3351 of 2008 challenging the order dated 16.1.2008,",
which was heard by a learned Single Judge of the High Court,
along with other writ petitions. All the petitions were,
disposed of by a common judgment dated 03.04.2009,
holding that all co-operative societies registered under the,
Societies Act are public authorities for the purpose of the RTI,
Act and are bound to act in conformity with the obligations in,
Chapter 11 of the Act and amenable to the jurisdiction of the,
State Information Commission. The Society then preferred,
Writ Appeal No.1688 of 2009. While that appeal was,
"pending, few other appeals including WA No.1417 of 2009,",
filed against the common judgment of the learned Single,
Judge dated 03.04.2009 came up for consideration before,
another Division Bench of the High Court which set aside the,
"judgment of the learned Single Judge dated 03.04.2009, the",
judgment of which is reported in AIR 2010 Ker 6. The Bench,
held that the obedience to Circular No.23 dated 1.6.2006 is,
optional in the sense that if the Society feels that it satisfies,
Page 7,
8,
"the definition of Section 2(h), it can appoint an Information",
Officer under the RTI Act or else the State Information,
Commissioner will decide when the matter reaches before,
"him, after examining the question whether the Society is",
"substantially financed, directly or indirectly, by the funds",
"provided by the State Government. The Division Bench,",
"therefore, held that the question whether the Society is a",
public authority or not under Section 2(h) is a disputed,
question of fact which has to be resolved by the authorities,
under the RTI Act.,
8. Writ Appeal No.1688 of 2009 later came up before,
"another Division Bench, the Bench expressed some",
reservations about the views expressed by the earlier,
Division Bench in Writ Appeal No.1417 of 2009 and vide its,
"order dated 24.3.2011 referred the matter to a Full Bench, to",
examine the question whether co-operative societies,
registered under the Societies Act are generally covered,
under the definition of Section 2(h) of the RTI Act. The Full,
Bench answered the question in the affirmative giving a,
Page 8,
9,
"liberal construction of the words “public authority”, bearing",
"in mind the “transformation of law” which, according to the",
"Full Bench, is to achieve transparency and accountability",
with regard to affairs of a public body.,
"9. We notice, the issue raised in these appeals is of",
considerable importance and may have impact on similar,
other Societies registered under the various State,
enactments across the country.,
10. The State of Kerala has issued a letter dated 5.5.2006,
"to the Registrar of Co-operative Societies, Kerala with",
"reference to the RTI Act, which led to the issuance of Circular",
"No.23/2006 dated 01.06.2006, which reads as under:",
“G1/40332/05,
"Registrar of Co-operative Societies,",
"Thiruvananthapuram, Dated 01.06.2006",
Circular No.23/2006,
"Sub: Right to Information Act, 2005- Co-operative",
Institutions included in the definition of “Public Authority”,
Ref: Governments Letter No.3159/P.S.1/06,
Dated 05.05.2006,
Page 9,
10,
"According to Right to Information Act, 2005, sub-section",
(1) and (2) of Section 5 of the Act severy public authority,
within 100 days of the enactment of this Act designate as,
many officers as public information officers as may be,
necessary to provide information to persons requesting for,
information under the Act. In this Act Section 2(h) defines,
institutions which come under the definition of public,
authority. As per the reference letter the government,
"informed that, according to Section 2(h) of the Act all",
institutions formed by laws made by state legislature is a,
“public authority” and therefore all co-operative,
institutions coming under the administrative control of,
The Registrar of co-operative societies are also public,
authorities.,
In the above circumstance the following directions are,
issued:,
1. All co-operative institutions coming under the,
administrative control of the Registrar of co-operative,
societies are “public authorities” under the Right to,
"Information Act, 2005 (central law No.22 of 2005). Co-",
operative institutions are bound to give all information,
"to applications under the RTI Act, if not given they will",
be subjected to punishment under the Act. For this all,
co-operative societies should appoint public,
information/assistant public information officers,
immediately and this should be published in the,
government website.,
2. For giving information for applicants government order,
No.8026/05/government administration department act,
Page 10,
11,
and rule can be applicable and 10 rupees can be,
charged as fees for each application. Also as per GAD,
Act and rule and the government Order No.2383/06,
dated 01.04.2006.,
3. Details of Right to Information Act are available in the,
government website (www.kerala.gov.in..... ) or right to,
information gov.in ) other details regarding the Act are,
also available in the government website.,
4. Hereafter application for information from co-operative,
institutions need not be accepted by the information,
officers of this department. But if they get such,
applications it should be given back showing the,
reasons or should be forwarded to the respective co-,
operative institutions with necessary directions and the,
applicant should be informed about this. In this case it,
is directed to follow the time limit strictly.,
5. It is directed that all joint registrars/assistant registrars,
should take immediate steps to bring this to the urgent,
notice of all co-operative institutions. They should,
inform to this office the steps taken within one week.,
The Government Order No.2389/06 dated 01.04.2006 is,
also enclosed.,
Sd/-,
V. Reghunath,
Registrar of co-operative societies (in,
charge)”,
"11. The State Government, it is seen, vide its letter dated",
5.5.2006 has informed the Registrar of Co-operative,
Page 11,
12,
"Societies that, as per Section 2(h) of the Act, all institutions",
formed by laws made by State Legislature is a “public,
"authority” and, therefore, all co-operative institutions",
coming under the administrative control of the Registrar of,
Co-operative Societies are also public authorities.,
12. We are in these appeals concerned only with the co-,
operative societies registered or deemed to be registered,
"under the Co-operative Societies Act, which are not owned,",
controlled or substantially financed by the State or Central,
"Government or formed, established or constituted by law",
made by Parliament or State Legislature.,
Co-operative Societies and Article 12 of the,
Constitution:,
"13. We may first examine, whether the Co-operative",
"Societies, with which we are concerned, will fall within the",
expression “State” within the meaning of Article 12 of the,
"Constitution of India and, hence subject to all constitutional",
limitations as enshrined in Part III of the Constitution. This,
Page 12,
13,
Court in U.P. State Co-operative Land Development,
Bank Limited v. Chandra Bhan Dubey and others,
"(1999) 1 SCC 741, while dealing with the question of the",
maintainability of the writ petition against the U.P. State Co-,
operative Development Bank Limited held the same as an,
instrumentality of the State and an authority mentioned in,
"Article 12 of the Constitution. On facts, the Court noticed",
that the control of the State Government on the Bank is all,
pervasive and that the affairs of the Bank are controlled by,
the State Government though it is functioning as a co-,
"operative society, it is an extended arm of the State and",
thus an instrumentality of the State or authority as,
mentioned under Article 12 of the Constitution. In All India,
Sainik Schools employees’ Association v. Defence,
"Minister-cum-Chairman Board of Governors, Sainik",
"Schools Society, New Delhi and others (1989)",
"Supplement 1 SCC 205, this Court held that the Sainik",
School society is “State” within the meaning of Article 12 of,
the Constitution after having found that the entire funding is,
by the State Government and by the Central Government,
Page 13,
14,
and the overall control vests in the governmental authority,
and the main object of the society is to run schools and,
prepare students for the purpose feeding the National,
Defence Academy.,
14. This Court in Executive Committee of Vaish Degree,
"College, Shamli and Others v. Lakshmi Narain and",
"Others (1976) 2 SCC 58, while dealing with the status of",
the Executive Committee of a Degree College registered,
"under the Co-operative Societies Act, held as follows:",
“10………It seems to us that before an institution,
can be a statutory body it must be created by or,
under the statute and owe its existence to a,
statute. This must be the primary thing which has,
got to be established. Here a distinction must be,
made between an institution which is not created,
by or under a statute but is governed by certain,
statutory provisions for the proper maintenance,
and administration of the institution. There have,
been a number of institutions which though not,
created by or under any statute have adopted,
"certain statutory provisions, but that by itself is",
"not, in our opinion, sufficient to clothe the",
institution with a statutory character……….”,
"15. We can, therefore, draw a clear distinction between a",
"body which is created by a Statute and a body which, after",
Page 14,
15,
"having come into existence, is governed in accordance with",
"the provisions of a Statute. Societies, with which we are",
"concerned, fall under the later category that is governed by",
"the Societies Act and are not statutory bodies, but only body",
corporate within the meaning of Section 9 of the Kerala Co-,
operative Societies Act having perpetual succession and,
"common seal and hence have the power to hold property,",
"enter into contract, institute and defend suites and other",
legal proceedings and to do all things necessary for the,
"purpose, for which it was constituted. Section 27 of the",
Societies Act categorically states that the final authority of a,
society vests in the general body of its members and every,
society is managed by the managing committee constituted,
in terms of the bye-laws as provided under Section 28 of the,
Societies Act. Final authority so far as such types of,
"Societies are concerned, as Statute says, is the general body",
and not the Registrar of Cooperative Societies or State,
Government.,
Page 15,
16,
16. This Court in Federal Bank Ltd. v. Sagar Thomas,
"and Others (2003) 10 SCC 733, held as follows:",
“32.Merely because Reserve Bank of India,
lays the banking policy in the interest of the,
banking system or in the interest of monetary,
stability or sound economic growth having due,
regard to the interests of the depositors etc. as,
provided under Section 5(c)(a) of the Banking,
Regulation Act does not mean that the private,
companies carrying on the business or commercial,
"activity of banking, discharge any public function",
or public duty. These are all regulatory measures,
applicable to those carrying on commercial,
activity in banking and these companies are to act,
according to these provisions failing which certain,
consequences follow as indicated in the Act itself.,
As to the provision regarding acquisition of a,
"banking company by the Government, it may be",
pointed out that any private property can be,
acquired by the Government in public interest. It is,
now a judicially accepted norm that private,
interest has to give way to the public interest. If a,
private property is acquired in public interest it,
does not mean that the party whose property is,
acquired is performing or discharging any function,
or duty of public character though it would be so,
for the acquiring authority”.,
"17. Societies are, of course, subject to the control of the",
"statutory authorities like Registrar, Joint Registrar, the",
"Government, etc. but cannot be said that the State exercises",
any direct or indirect control over the affairs of the society,
Page 16,
17,
which is deep and all pervasive. Supervisory or general,
"regulation under the statute over the co-operative societies,",
which are body corporate does not render activities of the,
body so regulated as subject to such control of the State so,
as to bring it within the meaning of the “State” or,
instrumentality of the State. Above principle has been,
"approved by this Court in S.S. Rana v. Registrar, Co-",
operative Societies and another (2006) 11 SCC 634. In,
that case this Court was dealing with the maintainability of,
the writ petition against the Kangra Central Co-operative,
"Society Bank Limited, a society registered under the",
provisions of the Himachal Pradesh Co-operative Societies,
"Act, 1968. After examining various provisions of the H.P. Co-",
operative Societies Act this Court held as follows:,
“9. It is not in dispute that the Society has not,
been constituted under an Act. Its functions like,
any other cooperative society are mainly,
"regulated in terms of the provisions of the Act,",
except as provided in the bye-laws of the Society.,
The State has no say in the functions of the,
"Society. Membership, acquisition of shares and all",
other matters are governed by the bye-laws,
framed under the Act. The terms and conditions of,
"an officer of the cooperative society, indisputably,",
"are governed by the Rules. Rule 56, to which",
Page 17,
18,
"reference has been made by Mr Vijay Kumar, does",
not contain any provision in terms whereof any,
legal right as such is conferred upon an officer of,
the Society.,
10. It has not been shown before us that the State,
exercises any direct or indirect control over the,
affairs of the Society for deep and pervasive,
control. The State furthermore is not the majority,
shareholder. The State has the power only to,
"nominate one Director. It cannot, thus, be said",
that the State exercises any functional control,
over the affairs of the Society in the sense that the,
majority Directors are nominated by the State. For,
arriving at the conclusion that the State has a,
"deep and pervasive control over the Society,",
several other relevant questions are required to be,
"considered, namely, (1) How was the Society",
created? (2) Whether it enjoys any monopoly,
character? (3) Do the functions of the Society,
partake to statutory functions or public functions?,
and (4) Can it be characterised as public,
authority?,
"11. Respondent 2, the Society does not answer",
any of the aforementioned tests. In the case of a,
"non-statutory society, the control thereover would",
mean that the same satisfies the tests laid down,
by this Court in Ajay Hasia v. Khalid Mujib,
Sehravardi. [See Zoroastrian Coop. Housing,
"Society Ltd. v. Distt. Registrar, Coop. Societies",
(Urban).],
12. It is well settled that general regulations under,
"an Act, like the Companies Act or the Cooperative",
"Societies Act, would not render the activities of a",
company or a society as subject to control of the,
State. Such control in terms of the provisions of,
the Act are meant to ensure proper functioning of,
Page 18,
19,
the society and the State or statutory authorities,
would have nothing to do with its day-to-day,
functions.”,
"18. We have, on facts, found that the Co-operative",
"Societies, with which we are concerned in these appeals, will",
not fall within the expression “State” or “instrumentalities of,
the State” within the meaning of Article 12 of the,
Constitution and hence not subject to all constitutional,
limitations as enshrined in Part III of the Constitution. We,
"may, however, come across situations where a body or",
organization though not a State or instrumentality of the,
"State, may still satisfy the definition of public authority",
"within the meaning of Section 2(h) of the Act, an aspect",
which we may discuss in the later part of this Judgment.,
Constitutional provisions and Co-operative autonomy:,
19. Rights of the citizens to form co-operative societies,
"voluntarily, is now raised to the level of a fundamental right",
and State shall endeavour to promote their autonomous,
"functioning. The Parliament, with a view to enhance public",
faith in the co-operative institutions and to insulate them to,
Page 19,
20,
avoidable political or bureaucratic interference brought in,
"Constitutional (97th Amendment) Act, 2011, which received",
"the assent of the President on 12.01.2012, notified in the",
Gazette of India on 13.01.2012 and came into force on,
15.02.2012.,
20. Constitutional amendment has been effected to,
encourage economic activities of co-operatives which in turn,
help progress of rural India. Societies are expected not only,
to ensure autonomous and democratic functioning of co-,
"operatives, but also accountability of the management to the",
members and other share stake-holders. Article 19 protects,
certain rights regarding freedom of speech. By virtue of,
above amendment under Article 19(1)(c) the words “co-,
operative societies” are added. Article 19(1)(c) reads as,
under:,
“19(1)(c) – All citizens shall have the right to form,
associations or unions or co-operative societies”.,
"Article 19(1)(c), therefore, guarantees the freedom to form",
"an association, unions and co-operative societies. Right to",
Page 20,
21,
"form a co-operative society is, therefore, raised to the level",
"of a fundamental right, guaranteed under the Constitution of",
India. Constitutional 97th Amendment Act also inserted a,
new Article 43B with reads as follows :-,
“the State shall endeavour to promote voluntary,
"formation, autonomous functioning, democratic",
control and professional management of co-,
operative societies”.,
"21. By virtue of the above-mentioned amendment, Part IX-",
B was also inserted containing Articles 243ZH to 243ZT.,
"Cooperative Societies are, however, not treated as units of",
"self-government, like Panchayats and Municipalities.",
22. Article 243(ZL) dealing with the supersession and,
suspension of board and interim management states that,
notwithstanding anything contained in any law for the time,
"being in force, no board shall be superseded or kept under",
suspension for a period exceeding six months. It provided,
further that the Board of any such co-operative society shall,
not be superseded or kept under suspension where there is,
no government shareholding or loan or financial assistance,
Page 21,
22,
or any guarantee by the Government. Such a constitutional,
restriction has been placed after recognizing the fact that,
there are co-operative societies with no government share,
holding or loan or financial assistance or any guarantee by,
the government.,
23. Co-operative society is a state subject under Entry 32,
List I Seventh Schedule to the Constitution of India. Most of,
the States in India enacted their own Co-operative Societies,
Act with a view to provide for their orderly development of,
the cooperative sector in the state to achieve the objects of,
"equity, social justice and economic development, as",
"envisaged in the Directive Principles of State Policy,",
enunciated in the Constitution of India. For co-operative,
"societies working in more than one State, The Multi State Co-",
"operative Societies Act, 1984 was enacted by the Parliament",
under Entry 44 List I of the Seventh Schedule of the,
Constitution. Co-operative society is essentially an,
association or an association of persons who have come,
Page 22,
23,
together for a common purpose of economic development or,
for mutual help.,
Right to Information Act,
24. The RTI Act is an Act enacted to provide for citizens to,
"secure, access to information under the control of public",
authorities and to promote transparency and accountability,
in the working of every public authority. The preamble of,
the Act reads as follows:,
“An Act to provide for setting out the,
practical regime of right to information for citizens,
to secure access to information under the control,
"of public authorities, in order to promote",
transparency and accountability in the working of,
"every public authority, the constitution of a",
Central Information Commission and State,
Information Commissions and for matters,
connected therewith or incidental thereto.,
WHEREAS the Constitution of India has,
established democratic Republic;,
AND WHEREAS democracy requires an,
informed citizenry and transparency of information,
which are vital to its functioning and also to,
contain corruption and to hold Governments and,
their instrumentalities accountable to the,
governed;,
Page 23,
24,
AND WHEREAS revelation of information in,
actual practice is likely to conflict with other public,
interests including efficient operations of the,
"Governments, optimum use of limited fiscal",
resources and the preservation of confidentiality of,
sensitive information;,
AND WHEREAS it is necessary to harmonise,
these conflicting interests while preserving the,
paramountcy of the democratic ideal;,
"NOW, THEREFORE, it is expedient to provide",
for furnishing certain information to citizens who,
desire to have it.”,
25. Every public authority is also obliged to maintain all its,
record duly catalogued and indexed in a manner and the,
form which facilitates the right to information under this Act,
and ensure that all records that are appropriate to be,
"computerized are, within a reasonable time and subject to",
"availability of resources, computerized and connected",
through a network all over the country on different systems,
so that access to such record is facilitated. Public authority,
"has also to carry out certain other functions also, as provided",
under the Act.,
26. The expression “public authority” is defined under,
"Section 2(h) of the RTI Act, which reads as follows:",
Page 24,
25,
"“2. Definitions._ In this Act, unless the context",
otherwise requires :,
"(h) ""public authority"" means any authority or",
body or institution of self-government,
established or constituted—,
(a) by or under the Constitution;,
(b) by any other law made by Parliament;,
(c) by any other law made by State,
Legislature;,
(d) by notification issued or order made by,
"the appropriate Government, and",
includes any—,
"(i) body owned, controlled or",
substantially financed;,
(ii) non-Government organisation,
"substantially financed, directly or",
indirectly by funds provided by the,
appropriate Government”,
"27. Legislature, in its wisdom, while defining the expression",
"“public authority” under Section 2(h), intended to embrace",
"only those categories, which are specifically included, unless",
the context of the Act otherwise requires. Section 2(h) has,
used the expressions ‘means’ and includes’. When a word is,
"defined to ‘mean’ something, the definition is prima facie",
restrictive and where the word is defined to ‘include’ some,
Page 25,
26,
"other thing, the definition is prima facie extensive. But when",
"both the expressions “means” and “includes” are used, the",
categories mentioned there would exhaust themselves.,
Meanings of the expressions ‘means’ and ‘includes’ have,
been explained by this Court in Delhi Development,
Authority v. Bhola Nath Sharma (Dead) by LRs and,
"others (2011) 2 SCC 54, (in paras 25 to 28). When such",
"expressions are used, they may afford an exhaustive",
"explanation of the meaning which for the purpose of the Act,",
must invariably be attached to those words and expressions.,
28. Section 2(h) exhausts the categories mentioned,
therein. The former part of 2(h) deals with:,
(1) an authority or body or institution of self-government,
"established by or under the Constitution,",
(2) an authority or body or institution of self-,
government established or constituted by any other,
"law made by the Parliament,",
(3) an authority or body or institution of self-government,
established or constituted by any other law made by,
"the State legislature, and",
Page 26,
27,
(4) an authority or body or institution of self-government,
established or constituted by notification issued or,
order made by the appropriate government.,
"29. Societies, with which we are concerned, admittedly, do",
"not fall in the above mentioned categories, because none of",
"them is either a body or institution of self-government,",
"established or constituted under the Constitution, by law",
"made by the Parliament, by law made by the State",
Legislature or by way of a notification issued or made by the,
appropriate government. Let us now examine whether they,
"fall in the later part of Section 2(h) of the Act, which",
embraces within its fold:,
"(5) a body owned, controlled or substantially financed,",
directly or indirectly by funds provided by the,
"appropriate government,",
(6) non-governmental organizations substantially financed,
directly or indirectly by funds provided by the,
appropriate government.,
30 The expression ‘Appropriate Government’ has also,
"been defined under Section 2(a) of the RTI Act, which reads",
as follows :,
Page 27,
28,
“2(a). “appropriate Government” means in,
relation to a public authority which is,
"established, constituted, owned, controlled",
or substantially financed by funds provided,
directly or indirectly-,
(i) by the Central Government or the,
"Union territory administration, the",
Central Government;,
"(ii) by the State Government, the State",
Government.”,
"31. The RTI Act, therefore, deals with bodies which are",
"owned, controlled or substantially financed, directly or",
"indirectly, by funds provided by the appropriate government",
and also non-government organizations substantially,
"financed, directly or indirectly, by funds provided by the",
"appropriate government, in the event of which they may fall",
within the definition of Section 2(h)(d)(i) or (ii) respectively.,
"As already pointed out, a body, institution or an organization,",
which is neither a State within the meaning of Article 12 of,
"the Constitution or instrumentalities, may still answer the",
definition of public authority under Section 2(h)d (i) or (ii).,
(a) Body owned by the appropriate government – A,
body owned by the appropriate government clearly falls,
"under Section 2(h)(d)(i) of the Act. A body owned, means to",
Page 28,
29,
have a good legal title to it having the ultimate control over,
"the affairs of that body, ownership takes in its fold control,",
finance etc. Further discussion of this concept is,
"unnecessary because, admittedly, the societies in question",
are not owned by the appropriate government.,
(b) Body Controlled by the Appropriate Government,
A body which is controlled by the appropriate,
government can fall under the definition of public authority,
under Section 2h(d)(i). Let us examine the meaning of the,
expression “controlled” in the context of RTI Act and not in,
the context of the expression “controlled” judicially,
interpreted while examining the scope of the expression,
“State” under Article 12 of the Constitution or in the context,
of maintainability of a writ against a body or authority under,
Article 226 of the Constitution of India. The word,
"“control” or “controlled” has not been defined in the RTI Act,",
"and hence, we have to understand the scope of the",
expression ‘controlled’ in the context of the words which,
exist prior and subsequent i.e. “body owned” and,
Page 29,
30,
“substantially financed” respectively. The meaning of the,
word “control” has come up for consideration in several,
cases before this Court in different contexts. In State of,
"West Bengal and another v. Nripendra Nath Bagchi,",
AIR 1966 SC 447 while interpreting the scope of Article 235,
"of the Constitution of India, which confers control by the",
"High Court over District Courts, this Court held that the word",
“control” includes the power to take disciplinary action and,
all other incidental or consequential steps to effectuate this,
end and made the following observations :,
"“The word ‘control’, as we have seen, was used for",
the first time in the Constitution and it is,
accompanied by the word ‘vest’ which is a strong,
word. It shows that the High Court is made the,
sole custodian of the control over the judiciary.,
"Control, therefore, is not merely the power to",
arrange the day to day working of the court but,
contemplates disciplinary jurisdiction over the,
"presiding Judge.... In our judgment, the control",
which is vested in the High Court is a complete,
control subject only to the power of the Governor,
in the matter of appointment (including dismissal,
and removal) and posting and promotion of,
District Judges. Within the exercise of the control,
"vested in the High Court, the High Court can hold",
"enquiries, impose punishments other than",
"dismissal or removal, ...”",
Page 30,
31,
32. The above position has been reiterated by this Court in,
Chief Justice of Andhra Pradesh and others v. L.V.A.,
Dixitulu and others (1979) 2 SCC 34. In Corporation of,
"the City of Nagpur Civil Lines, Nagpur and another v.",
"Ramchandra and others (1981) 2 SCC 714, while",
interpreting the provisions of Section 59(3) of the City of,
"Nagpur Corporation Act, 1948, this Court held as follows :",
“4. It is thus now settled by this Court that the,
term “control” is of a very wide connotation and,
amplitude and includes a large variety of powers,
which are incidental or consequential to achieve,
the powers-vested in the authority,
concerned…….”,
33. The word “control” is also sometimes used synonyms,
"with superintendence, management or authority to direct,",
restrict or regulate by a superior authority in exercise of its,
supervisory power. This Court in The Shamrao Vithal Co-,
operative Bank Ltd. v. Kasargode Pandhuranga,
"Mallya (1972) 4 SCC 600, held that the word “control” does",
not comprehend within itself the adjudication of a claim,
made by a co-operative society against its members. The,
Page 31,
32,
meaning of the word “control” has also been considered by,
this Court in State of Mysore v. Allum Karibasappa &,
"Ors. (1974) 2 SCC 498, while interpreting Section 54 of the",
"Mysore Cooperative Societies Act, 1959 and Court held that",
"the word “control” suggests check, restraint or influence and",
intended to regulate and hold in check and restraint from,
action. The expression “control” again came up for,
consideration before this Court in Madan Mohan,
"Choudhary v. State of Bihar & Ors. (1999) 3 SCC 396, in",
the context of Article 235 of the Constitution and the Court,
held that the expression “control” includes disciplinary,
"control, transfer, promotion, confirmation, including transfer",
of a District Judge or recall of a District Judge posted on ex-,
cadre post or on deputation or on administrative post etc. so,
also premature and compulsory retirement. Reference may,
also be made to few other judgments of this Court reported,
in Gauhati High Court and another v. Kuladhar Phukan,
"and another (2002) 4 SCC 524, State of Haryana v.",
"Inder Prakash Anand HCS and others (1976) 2 SCC 977,",
High Court of Judicature for Rajasthan v. Ramesh,
Page 32,
33,
"Chand Paliwal and Another (1998) 3 SCC 72, Kanhaiya",
"Lal Omar v. R.K. Trivedi and others (1985) 4 SCC 628,",
TMA Pai Foundation and others v. State of Karnataka,
"(2002) 8 SCC 481, Ram Singh and others v. Union",
"Territory, Chandigarh and others (2004) 1 SCC 126, etc.",
34. We are of the opinion that when we test the meaning of,
expression “controlled” which figures in between the words,
"“body owned” and “substantially financed”, the control by",
the appropriate government must be a control of a,
substantial nature. The mere ‘supervision’ or ‘regulation’ as,
such by a statute or otherwise of a body would not make,
that body a “public authority” within the meaning of Section,
2(h)(d)(i) of the RTI Act. In other words just like a body,
owned or body substantially financed by the appropriate,
"government, the control of the body by the appropriate",
government would also be substantial and not merely,
supervisory or regulatory. Powers exercised by the Registrar,
of Cooperative Societies and others under the Cooperative,
"Societies Act are only regulatory or supervisory in nature,",
Page 33,
34,
which will not amount to dominating or interfering with the,
management or affairs of the society so as to be controlled.,
Management and control are statutorily conferred on the,
Management Committee or the Board of Directors of the,
Society by the respective Cooperative Societies Act and not,
on the authorities under the Co-operative Societies Act.,
"35. We are, therefore, of the view that the word",
“controlled” used in Section 2(h)(d)(i) of the Act has to be,
understood in the context in which it has been used vis-a-vis,
a body owned or substantially financed by the appropriate,
"government, that is the control of the body is of such a",
degree which amounts to substantial control over the,
management and affairs of the body.,
SUBSTANTIALLY FINANCED,
36. The words “substantially financed” have been used in,
"Sections 2(h)(d)(i) & (ii), while defining the expression public",
Page 34,
35,
"authority as well as in Section 2(a) of the Act, while defining",
the expression “appropriate Government”. A body can be,
"substantially financed, directly or indirectly by funds",
provided by the appropriate Government. The expression,
"“substantially financed”, as such, has not been defined",
under the Act. “Substantial” means “in a substantial,
manner so as to be substantial”. In Palser v. Grimling,
"(1948) 1 All ER 1, 11 (HL), while interpreting the provisions",
of Section 10(1) of the Rent and Mortgage Interest,
"Restrictions Act, 1923, the House of Lords held that",
“substantial” is not the same as “not unsubstantial” i.e. just,
enough to avoid the de minimis principle. The word,
"“substantial” literally means solid, massive etc. Legislature",
has used the expression “substantially financed” in Sections,
2(h)(d)(i) and (ii) indicating that the degree of financing must,
"be actual, existing, positive and real to a substantial extent,",
"not moderate, ordinary, tolerable etc.",
37. We often use the expressions “questions of law” and,
“substantial questions of law” and explain that any question,
Page 35,
36,
of law affecting the right of parties would not by itself be a,
substantial question of law. In Black's Law Dictionary,
"(6th Edn.), the word 'substantial' is defined as 'of real worth",
and importance; of considerable value; valuable. Belonging,
to substance; actually existing; real: not seeming or,
imaginary; not illusive; solid; true; veritable. Something,
worthwhile as distinguished from something without value or,
merely nominal. Synonymous with material.' The word,
'substantially' has been defined to mean 'essentially; without,
material qualification; in the main; in substance; materially.',
"In the Shorter Oxford English Dictionary (5th Edn.), the word",
'substantial' means 'of ample or considerable amount of size;,
"sizeable, fairly large; having solid worth or value, of real",
"significance; sold; weighty; important, worthwhile; of an act,",
"measure etc. having force or effect, effective, thorough.' The",
word 'substantially' has been defined to mean 'in substance;,
"as a substantial thing or being; essentially, intrinsically.'",
Therefore the word 'substantial' is not synonymous with,
'dominant' or 'majority'. It is closer to 'material' or,
'important' or 'of considerable value.' 'Substantially' is closer,
Page 36,
37,
to 'essentially'. Both words can signify varying degrees,
depending on the context.,
"38. Merely providing subsidiaries, grants, exemptions,",
"privileges etc., as such, cannot be said to be providing",
"funding to a substantial extent, unless the record shows that",
the funding was so substantial to the body which practically,
"runs by such funding and but for such funding, it would",
struggle to exist. The State may also float many schemes,
generally for the betterment and welfare of the cooperative,
"sector like deposit guarantee scheme, scheme of assistance",
"from NABARD etc., but those facilities or assistance cannot",
be termed as “substantially financed” by the State,
Government to bring the body within the fold of “public,
"authority” under Section 2(h)(d)(i) of the Act. But, there are",
"instances, where private educational institutions getting",
ninety five per cent grant-in-aid from the appropriate,
"government, may answer the definition of public authority",
under Section 2(h)(d)(i).,
Page 37,
38,
NON-GOVERNMENT ORGANISATIONS:,
"39. The term “Non-Government Organizations” (NGO), as",
"such, is not defined under the Act. But, over a period of",
"time, the expression has got its own meaning and, it has to",
"be seen in that context, when used in the Act. Government",
"used to finance substantially, several non-government",
"organizations, which carry on various social and welfare",
"activities, since those organizations sometimes carry on",
"functions which are otherwise governmental. Now, the",
"question, whether an NGO has been substantially financed or",
"not by the appropriate Government, may be a question of",
"fact, to be examined by the authorities concerned under the",
RTI Act. Such organization can be substantially financed,
either directly or indirectly by funds provided by the,
appropriate Government. Government may not have any,
"statutory control over the NGOs, as such, still it can be",
established that a particular NGO has been substantially,
financed directly or indirectly by the funds provided by the,
"appropriate Government, in such an event, that organization",
Page 38,
39,
will fall within the scope of Section 2(h)(d)(ii) of the RTI Act.,
"Consequently, even private organizations which are, though",
not owned or controlled but substantially financed by the,
appropriate Government will also fall within the definition of,
“public authority” under Section 2(h)(d)(ii) of the Act.,
BURDEN TO SHOW:,
"40. The burden to show that a body is owned, controlled or",
substantially financed or that a non-government,
organization is substantially financed directly or indirectly by,
the funds provided by the appropriate Government is on the,
applicant who seeks information or the appropriate,
Government and can be examined by the State Information,
Commission or the Central Information Commission as the,
"case may be, when the question comes up for consideration.",
"A body or NGO is also free to establish that it is not owned,",
controlled or substantially financed directly or indirectly by,
the appropriate Government.,
Page 39,
40,
41. Powers have been conferred on the Central Information,
Commissioner or the State Information Commissioner under,
Section 18 of the Act to inquire into any complaint received,
from any person and the reason for the refusal to access to,
"any information requested from a body owned, controlled or",
"substantially financed, or a non-government organization",
substantially financed directly or indirectly by the funds,
provided by the appropriate Government. Section 19 of the,
Act provides for an appeal against the decision of the Central,
Information Officer or the State Information Officer to such,
officer who is senior in rank to the Central Information,
"Officer or the State Information Officer, as the case may be,",
"in each public authority. Therefore, there is inbuilt",
mechanism in the Act itself to examine whether a body is,
"owned, controlled or substantially financed or an NGO is",
"substantially financed, directly or indirectly, by funds",
provided by the appropriate authority.,
42. Legislative intention is clear and is discernible from,
"Section 2(h) that intends to include various categories,",
Page 40,
41,
discussed earlier. It is trite law that the primarily language,
employed is the determinative factor of the legislative,
intention and the intention of the legislature must be found,
in the words used by the legislature itself. In Magor and,
St. Mellons Rural District Council v. New Port,
Corporation (1951) 2 All ER 839(HL) stated that the courts,
are warned that they are not entitled to usurp the legislative,
function under the guise of interpretation. This Court in,
D.A. Venkatachalam and others v. Dy. Transport,
"Commissioner and others (1977) 2 SCC 273, Union of",
India v. Elphinstone Spinning and Weaving Co. Ltd.,
"and others (2001) 4 SCC 139, District Mining Officer",
and others v. Tata Iron & Steel Co. and another (2001),
"7 SCC 358, Padma Sundara Rao (Dead) and others v.",
"State of Tamil Nadu and others (2002) 3 SCC 533,",
Maulvi Hussain Haji Abraham Umarji v. State of,
Gujarat and another (2004) 6 SCC 672 held that the court,
must avoid the danger of an apriori determination of the,
meaning of a provision based on their own preconceived,
notions of ideological structure or scheme into which the,
Page 41,
42,
provisions to be interpreted is somehow fitted. It is trite law,
"that words of a statute are clear, plain and unambiguous i.e.",
"they are reasonably susceptible to only one meaning, the",
courts are bound to give effect to that meaning irrespective,
"of the consequences, meaning thereby when the language is",
"clear and unambiguous and admits of only one meaning, no",
"question of construction of a statute arises, for the statute",
speaks for itself. This Court in Kanai Lal Sur v.,
Paramnidhi Sadhukhan AIR 1957 SC 907 held that “if the,
words used are capable of one construction only then it,
would not be open to courts to adopt any other hypothetical,
construction on the ground that such construction is more,
consistent with the alleged object and policy of the Act.”,
43. We are of the view that the High Court has given a,
complete go-bye to the above-mentioned statutory,
principles and gone at a tangent by mis-interpreting the,
meaning and content of Section 2(h) of the RTI Act. Court,
has given a liberal construction to expression “public,
"authority” under Section 2(h) of the Act, bearing in mind the",
Page 42,
43,
“transformation of law” and its “ultimate object” i.e. to,
"achieve “transparency and accountability”, which according",
to the court could alone advance the objective of the Act.,
"Further, the High Court has also opined that RTI Act will",
certainly help as a protection against the mismanagement of,
the society by the managing committee and the society’s,
liabilities and that vigilant members of the public body by,
"obtaining information through the RTI Act, will be able to",
"detect and prevent mismanagement in time. In our view,",
the categories mentioned in Section 2(h) of the Act exhaust,
"themselves, hence, there is no question of adopting a liberal",
construction to the expression “public authority” to bring in,
"other categories into its fold, which do not satisfy the tests",
"we have laid down. Court cannot, when language is clear",
"and unambiguous, adopt such a construction which,",
"according to the Court, would only advance the objective of",
the Act. We are also aware of the opening part of the,
definition clause which states “unless the context otherwise,
requires”. No materials have been made available to show,
"that the cooperative societies, with which we are concerned,",
Page 43,
44,
"in the context of the Act, would fall within the definition of",
Section 2(h) of the Act.,
Right to Information and the Right to Privacy,
44. People’s right to have access to an official information,
finds place in Resolution 59(1) of the UN General Assembly,
held in 1946. It states that freedom of information is a,
fundamental human right and the touchstone to all the,
freedoms to which the United Nations is consecrated. India,
is a party to the International Covenant on Civil and Political,
Rights and hence India is under an obligation to effectively,
guarantee the right to information. Article 19 of the,
Universal Declaration of Human Rights also recognizes right,
to information. Right to information also emanates from the,
fundamental right guaranteed to citizens under Article 19(1),
(a) of the Constitution of India. Constitution of India does not,
explicitly grant a right to information. In Bennet Coleman,
& Co. and others Vs. Union of India and others (1972),
"2 SCC 788, this Court observed that it is indisputable that by",
"“Freedom of Press” meant the right of all citizens to speak,",
Page 44,
45,
publish and express their views and freedom of speech and,
expression includes within its compass the right of all,
citizens to read and be informed. In Union of India Vs.,
Association of Democratic Reforms and another (2002),
"5 SCC 294, this Court held that the right to know about the",
antecedents including criminal past of the candidates,
contesting the election for Parliament and State Assembly is,
a very important and basic facets for survival of democracy,
"and for this purpose, information about the candidates to be",
selected must be disclosed. In State of U.P. Vs. Raj,
"Narain and others (1975) 4 SCC 428, this Court recognized",
that the right to know is the right that flows from the right of,
freedom of speech and expression guaranteed under Article,
19(1)(a) of the Constitution. In People’s Union for Civil,
Liberties (PUCL) and others Vs. Union of India and,
"another (2003) 4 SCC 399, this Court observed that the",
right to information is a facet of freedom of speech and,
expression contained in Article 19(1)(a) of the Constitution of,
India. Right to information thus indisputably is a,
Page 45,
46,
"fundamental right, so held in several judgments of this",
"Court, which calls for no further elucidation.",
"45. The Right to Information Act, 2005 is an Act which",
provides for setting up the practical regime of right to,
information for citizens to secure access to information,
under the control of public authorities in order to promote,
transparency and accountability in the working of every,
public authority. Preamble of the Act also states that the,
democracy requires an informed citizenry and transparency,
of information which are vital to its functioning and also to,
contain corruption and to hold Governments and their,
instrumentalities accountable to the governed. Citizens,
"have, however, the right to secure access to information of",
only those matters which are “under the control of public,
"authorities”, the purpose is to hold “Government and its",
instrumentalities” accountable to the governed.,
"Consequently, though right to get information is a",
fundamental right guaranteed under Article 19(1)(a) of the,
"Constitution, limits are being prescribed under the Act itself,",
Page 46,
47,
which are reasonable restrictions within the meaning of,
Article 19(2) of the Constitution of India.,
46. Right to privacy is also not expressly guaranteed under,
"the Constitution of India. However, the Privacy Bill, 2011 to",
provide for the right to privacy to citizens of India and to,
"regulate the collection, maintenance and dissemination of",
their personal information and for penalization for violation,
"of such rights and matters connected therewith, is pending.",
In several judgments including Kharak Singh Vs. State of,
"U.P. and others AIR 1963 SC 1295, R. Rajagopal alias",
R.R. Gopal and another Vs. State of Tamil Nadu and,
"others (1994) 6 SCC 632, People’s Union for Civil",
Liberties (PUCL) Vs. Union of India and another (1997),
1 SCC 301 and State of Maharashtra Vs. Bharat Shanti,
"Lal Shah and others (2008) 13 SCC 5, this Court has",
recognized the right to privacy as a fundamental right,
emanating from Article 21 of the Constitution of India. Right,
to privacy is also recognized as a basic human right under,
Page 47,
48,
"Article 12 of the Universal Declaration of Human Rights Act,",
"1948, which states as follows:",
“No one shall be subjected to arbitrary,
"interference with his privacy, family, home or",
"correspondence, not to attack upon his honour",
and reputation. Everyone has the right to the,
protection of law against such interference or,
attacks.”,
Article 17 of the International Covenant on Civil and Political,
"Rights Act, 1966, to which India is a party also protects that",
right and states as follows:,
“No one shall be subjected to arbitrary or unlawful,
"interference with his privacy, family, home and",
correspondence nor to unlawful attacks on his,
honour and reputation….”,
This Court in R. Rajagopal (supra) held as follows :-,
“The right to privacy is implicit in the right to life,
and liberty guaranteed to the citizens of this,
country by Article 21. It is a “right to be let,
alone”. A citizen has a right to safeguard the,
"privacy of his own, his family, marriage,",
"procreation, motherhood, child bearing and",
education among other matters.”,
Page 48,
49,
Restrictions and Limitations:,
"47. Right to information and Right to privacy are, therefore,",
"not absolute rights, both the rights, one of which falls under",
Article 19(1)(a) and the other under Article 21 of the,
"Constitution of India, can obviously be regulated, restricted",
and curtailed in the larger public interest. Absolute or,
uncontrolled individual rights do not and cannot exist in any,
modern State. Citizens’ right to get information is statutorily,
"recognized by the RTI Act, but at the same time limitations",
"are also provided in the Act itself, which is discernible from",
"the Preamble and other provisions of the Act. First of all, the",
scope and ambit of the expression “public authority” has,
been restricted by a statutory definition under Section 2(h),
limiting it to the categories mentioned therein which exhaust,
"itself, unless the context otherwise requires. Citizens, as",
"already indicated by us, have a right to get information, but",
can have access only to the information “held” and under,
"the “control of public authorities”, with limitations. If the",
Page 49,
50,
"information is not statutorily accessible by a public authority,",
"as defined in Section 2(h) of the Act, evidently, those",
information will not be under the “control of the public,
"authority”. Resultantly, it will not be possible for the citizens",
to secure access to those information which are not under,
"the control of the public authority. Citizens, in that event,",
"can always claim a right to privacy, the right of a citizen to",
"access information should be respected, so also a citizen’s",
right to privacy.,
48. Public authority also is not legally obliged to give or,
"provide information even if it is held, or under its control, if",
that information falls under clause (j) of Sub-section (1) of,
Section 8. Section 8(1)(j) is of considerable importance so,
"far as this case is concerned, hence given below, for ready",
reference:-,
“8. Exemption from disclosure of,
information – (1) Notwithstanding anything,
"contained in this Act, there shall be no obligation",
to give any citizen –,
(a) to (i) xxx xxx xxx,
Page 50,
51,
(j) information which relates to personal,
information the disclosure of which has no,
"relationship to any public activity or interest, or",
which would cause unwarranted invasion of the,
privacy of the individual unless the Central Public,
Information Officer or the State Public Information,
"Officer or the appellate authority, as the case may",
"be, is satisfied that the larger public interest",
justifies the disclosure of such information:,
Provided that the information which cannot be,
denied to the Parliament or a State Legislature,
shall not be denied to any person.”,
"49. Section 8 begins with a non obstante clause, which",
"gives that Section an overriding effect, in case of conflict,",
"over the other provisions of the Act. Even if, there is any",
"indication to the contrary, still there is no obligation on the",
public authority to give information to any citizen of what,
"has been mentioned in clauses (a) to (j). Public authority,",
"as already indicated, cannot access all the information from",
"a private individual, but only those information which he is",
"legally obliged to pass on to a public authority by law, and",
also only those information to which the public authority can,
have access in accordance with law. Even those,
"information, if personal in nature, can be made available",
only subject to the limitations provided in Section 8(j) of the,
Page 51,
52,
"RTI Act. Right to be left alone, as propounded in Olmstead",
v. The United States reported in 1927 (277) US 438 is the,
most comprehensive of the rights and most valued by,
civilized man.,
50. Recognizing the fact that the right to privacy is a,
"sacrosanct facet of Article 21 of the Constitution, the",
legislation has put a lot of safeguards to protect the rights,
"under Section 8(j), as already indicated. If the information",
sought for is personal and has no relationship with any,
public activity or interest or it will not sub-serve larger public,
"interest, the public authority or the officer concerned is not",
legally obliged to provide those information. Reference may,
be made to a recent judgment of this Court in Girish,
Ramchandra Deshpande v. Central Information,
"Commissioner and others (2013) 1 SCC 212, wherein this",
Court held that since there is no bona fide public interest in,
"seeking information, the disclosure of said information would",
cause unwarranted invasion of privacy of the individual,
"under Section 8(1)(j) of the Act. Further, if the authority",
Page 52,
53,
finds that information sought for can be made available in,
"the larger public interest, then the officer should record his",
"reasons in writing before providing the information, because",
"the person from whom information is sought for, has also a",
right to privacy guaranteed under Article 21 of the,
Constitution.,
"51. We have found, on facts, that the Societies, in these",
"appeals, are not public authorities and, hence, not legally",
obliged to furnish any information sought for by a citizen,
"under the RTI Act. All the same, if there is any dispute on",
facts as to whether a particular Society is a public authority,
"or not, the State Information Commission can examine the",
same and find out whether the Society in question satisfies,
"the test laid in this judgment. Now, the next question is",
whether a citizen can have access to any information of,
these Societies through the Registrar of Cooperative,
"Societies, who is a public authority within the meaning of",
Section 2(h) of the Act.,
Registrar of Cooperative Societies,
Page 53,
54,
52. Registrar of Cooperative Societies functioning under the,
Cooperative Societies Act is a public authority within the,
"meaning of Section 2(h) of the Act. As a public authority,",
Registrar of Co-operative Societies has been conferred with,
lot of statutory powers under the respective Act under which,
he is functioning. He is also duty bound to comply with the,
obligations under the RTI Act and furnish information to a,
citizen under the RTI Act. Information which he is expected,
to provide is the information enumerated in Section 2(f) of,
the RTI Act subject to the limitations provided under Section,
"8 of the Act. Registrar can also, to the extent law permits,",
"gather information from a Society, on which he has",
supervisory or administrative control under the Cooperative,
"Societies Act. Consequently, apart from the information as is",
"available to him, under Section 2(f), he can also gather those",
"information from the Society, to the extent permitted by law.",
Registrar is also not obliged to disclose those information if,
those information fall under Section 8(1)(j) of the Act. No,
"provision has been brought to our knowledge indicating that,",
Page 54,
55,
"under the Cooperative Societies Act, a Registrar can call for",
the details of the bank accounts maintained by the citizens,
or members in a cooperative bank. Only those information,
which a Registrar of Cooperative Societies can have access,
under the Cooperative Societies Act from a Society could be,
said to be the information which is “held” or “under the,
"control of public authority”. Even those information,",
"Registrar, as already indicated, is not legally obliged to",
provide if those information falls under the exempted,
category mentioned in Section 8(j) of the Act. Apart from,
"the Registrar of Co-operative Societies, there may be other",
public authorities who can access information from a Co-,
operative Bank of a private account maintained by a,
"member of Society under law, in the event of which, in a",
"given situation, the society will have to part with that",
information. But the demand should have statutory backing.,
"53. Consequently, an information which has been sought",
"for relates to personal information, the disclosure of which",
has no relationship to any public activity or interest or which,
Page 55,
56,
would cause unwarranted invasion of the privacy of the,
"individual, the Registrar of Cooperative Societies, even if he",
"has got that information, is not bound to furnish the same to",
"an applicant, unless he is satisfied that the larger public",
"interest justifies the disclosure of such information, that too,",
for reasons to be recorded in writing.,
"54. We, therefore, hold that the Cooperative Societies",
registered under the Kerala Co-operative Societies Act will,
not fall within the definition of “public authority” as defined,
under Section 2(h) of the RTI Act and the State Government,
letter dated 5.5.2006 and the circular dated 01.06.2006,
"issued by the Registrar of Co-operative Societies, Kerala, to",
"the extent, made applicable to societies registered under the",
Kerala Co-operative Societies Act would stand quashed in,
"the absence of materials to show that they are owned,",
controlled or substantially financed by the appropriate,
"Government. Appeals are, therefore, allowed as above,",
"however, with no order as to costs.",
Page 56,
57,
………..………………….J.,
(K.S. Radhakrishnan),
……………………………J.,
(A.K. Sikri),
"New Delhi,",
"October 07, 2013",
Page 57,
1,
REPORTABLE,
IN THE SUPREME COURT OF INDIA,
CIVIL APPEALLATE JURISDICTION,
CIVIL APPEAL NO. 9017 OF 2013,
(Arising out of SLP (C) No.24290 of 2012),
Thalappalam Ser. Coop. Bank,
Ltd. and others Appellants,
Versus,
State of Kerala and others,
Respondents,
WITH,
"CIVIL APPEAL NOs. 9020, 9029 & 9023 OF 2013",
"(Arising out of SLP (C) No.24291 of 2012, 13796 and 13797",
of 2013),
J U D G M E N T,
"K.S. Radhakrishnan, J.",
1. Leave granted.,
"2. We are, in these appeals, concerned with the question",
whether a co-operative society registered under the Kerala,
"Co-operative Societies Act, 1969 (for short “the Societies",
Page 1,
2,
Act”) will fall within the definition of “public authority” under,
"Section 2(h) of the Right to Information Act, 2005 (for short",
“the RTI Act”) and be bound by the obligations to provide,
information sought for by a citizen under the RTI Act.,
"3. A Full Bench of the Kerala High Court, in its judgment",
"reported in AIR 2012 Ker 124, answered the question in the",
affirmative and upheld the Circular No.23 of 2006 dated,
"01.06.2006, issued by the Registrar of the Co-operative",
"Societies, Kerala stating that all the co-operative institutions",
"coming under the administrative control of the Registrar, are",
“public authorities” within the meaning of Section 2(h) of the,
RTI Act and obliged to provide information as sought for.,
The question was answered by the Full Bench in view of the,
conflicting views expressed by a Division Bench of the Kerala,
"High Court in Writ Appeal No.1688 of 2009, with an earlier",
judgment of the Division Bench reported in Thalapalam,
Service Co-operative Bank Ltd. v. Union of India AIR,
"2010 Ker 6, wherein the Bench took the view that the",
question as to whether a co-operative society will fall under,
Page 2,
3,
"Section 2(h) of the RTI Act is a question of fact, which will",
depend upon the question whether it is substantially,
"financed, directly or indirectly, by the funds provided by the",
"State Government which, the Court held, has to be decided",
depending upon the facts situation of each case.,
"4. Mr. K. Padmanabhan Nair, learned senior counsel",
appearing for some of the societies submitted that the views,
expressed by the Division Bench in Thalapalam Service,
"Co-operative Bank Ltd. (supra) is the correct view, which",
calls for our approval. Learned senior counsel took us,
through the various provisions of the Societies Act as well as,
of the RTI Act and submitted that the societies are,
autonomous bodies and merely because the officers,
functioning under the Societies Act have got supervisory,
control over the societies will not make the societies public,
authorities within the meaning of Section 2(h) of the RTI Act.,
Learned senior counsel also submitted that these societies,
"are not owned, controlled or substantially financed, directly",
"or indirectly, by the State Government. Learned senior",
Page 3,
4,
counsel also submitted that the societies are not statutory,
bodies and are not performing any public functions and will,
not come within the expression “state” within the meaning,
under Article 12 of the Constitution of India.,
"5. Mr. Ramesh Babu MR, learned counsel appearing for",
"the State, supported the reasoning of the impugned",
judgment and submitted that such a circular was issued by,
the Registrar taking into consideration the larger public,
interest so as to promote transparency and accountability in,
the working of every co-operative society in the State of,
Kerala. Reference was also made to various provisions of,
the Societies Act and submitted that those provisions would,
indicate that the Registrar has got all pervading control over,
"the societies, including audit, enquiry and inspection and the",
power to initiate surcharge proceedings. Power is also,
vested on the Registrar under Section 32 of the Societies Act,
to supersede the management of the society and to appoint,
an administrator. This would indicate that though societies,
"are body corporates, they are under the statutory control of",
Page 4,
5,
the Registrar of Co-operative Societies. Learned counsel,
submitted that in such a situation they fall under the,
definition of “pubic authority” within the meaning of Section,
"2(h) of the RTI Act. Shri Ajay, learned counsel appearing for",
"the State Information Commission, stated that the",
applicability of the RTI Act cannot be excluded in terms of,
the clear provision of the Act and they are to be interpreted,
to achieve the object and purpose of the Act. Learned,
counsel submitted that at any rate having regard to the,
"definition of “information” in Section 2(f) of the Act, the",
access to information in relation to Societies cannot be,
denied to a citizen.,
Facts:,
"6. We may, for the disposal of these appeals, refer to the",
facts pertaining to Mulloor Rural Co-operative Society Ltd. In,
"that case, one Sunil Kumar stated to have filed an",
application dated 8.5.2007 under the RTI Act seeking,
particulars relating to the bank accounts of certain members,
"of the society, which the society did not provide. Sunil",
Page 5,
6,
Kumar then filed a complaint dated 6.8.2007 to the State,
"Information Officer, Kerala who, in turn, addressed a letter",
dated 14.11.2007 to the Society stating that application filed,
"by Sunil Kumar was left unattended. Society, then, vide",
letter dated 24.11.2007 informed the applicant that the,
information sought for is “confidential in nature” and one,
"warranting “commercial confidence”. Further, it was also",
pointed out that the disclosure of the information has no,
relationship to any “public activity” and held by the society,
"in a “fiduciary capacity”. Society was, however, served with",
an order dated 16.1.2008 by the State Information,
"Commission, Kerala, stating that the Society has violated the",
mandatory provisions of Section 7(1) of the RTI Act,
rendering themselves liable to be punished under Section 20,
of the Act. State Information Officer is purported to have,
relied upon a circular No.23/2006 dated 01.06.2006 issued,
"by the Registrar, Co-operative Societies bringing in all",
societies under the administrative control of the Registrar of,
"Co-operative Societies, as “public authorities” under Section",
2(h) of the RTI Act.,
Page 6,
7,
7. Mulloor Co-operative Society then filed Writ Petition,
"No.3351 of 2008 challenging the order dated 16.1.2008,",
which was heard by a learned Single Judge of the High Court,
along with other writ petitions. All the petitions were,
disposed of by a common judgment dated 03.04.2009,
holding that all co-operative societies registered under the,
Societies Act are public authorities for the purpose of the RTI,
Act and are bound to act in conformity with the obligations in,
Chapter 11 of the Act and amenable to the jurisdiction of the,
State Information Commission. The Society then preferred,
Writ Appeal No.1688 of 2009. While that appeal was,
"pending, few other appeals including WA No.1417 of 2009,",
filed against the common judgment of the learned Single,
Judge dated 03.04.2009 came up for consideration before,
another Division Bench of the High Court which set aside the,
"judgment of the learned Single Judge dated 03.04.2009, the",
judgment of which is reported in AIR 2010 Ker 6. The Bench,
held that the obedience to Circular No.23 dated 1.6.2006 is,
optional in the sense that if the Society feels that it satisfies,
Page 7,
8,
"the definition of Section 2(h), it can appoint an Information",
Officer under the RTI Act or else the State Information,
Commissioner will decide when the matter reaches before,
"him, after examining the question whether the Society is",
"substantially financed, directly or indirectly, by the funds",
"provided by the State Government. The Division Bench,",
"therefore, held that the question whether the Society is a",
public authority or not under Section 2(h) is a disputed,
question of fact which has to be resolved by the authorities,
under the RTI Act.,
8. Writ Appeal No.1688 of 2009 later came up before,
"another Division Bench, the Bench expressed some",
reservations about the views expressed by the earlier,
Division Bench in Writ Appeal No.1417 of 2009 and vide its,
"order dated 24.3.2011 referred the matter to a Full Bench, to",
examine the question whether co-operative societies,
registered under the Societies Act are generally covered,
under the definition of Section 2(h) of the RTI Act. The Full,
Bench answered the question in the affirmative giving a,
Page 8,
9,
"liberal construction of the words “public authority”, bearing",
"in mind the “transformation of law” which, according to the",
"Full Bench, is to achieve transparency and accountability",
with regard to affairs of a public body.,
"9. We notice, the issue raised in these appeals is of",
considerable importance and may have impact on similar,
other Societies registered under the various State,
enactments across the country.,
10. The State of Kerala has issued a letter dated 5.5.2006,
"to the Registrar of Co-operative Societies, Kerala with",
"reference to the RTI Act, which led to the issuance of Circular",
"No.23/2006 dated 01.06.2006, which reads as under:",
“G1/40332/05,
"Registrar of Co-operative Societies,",
"Thiruvananthapuram, Dated 01.06.2006",
Circular No.23/2006,
"Sub: Right to Information Act, 2005- Co-operative",
Institutions included in the definition of “Public Authority”,
Ref: Governments Letter No.3159/P.S.1/06,
Dated 05.05.2006,
Page 9,
10,
"According to Right to Information Act, 2005, sub-section",
(1) and (2) of Section 5 of the Act severy public authority,
within 100 days of the enactment of this Act designate as,
many officers as public information officers as may be,
necessary to provide information to persons requesting for,
information under the Act. In this Act Section 2(h) defines,
institutions which come under the definition of public,
authority. As per the reference letter the government,
"informed that, according to Section 2(h) of the Act all",
institutions formed by laws made by state legislature is a,
“public authority” and therefore all co-operative,
institutions coming under the administrative control of,
The Registrar of co-operative societies are also public,
authorities.,
In the above circumstance the following directions are,
issued:,
1. All co-operative institutions coming under the,
administrative control of the Registrar of co-operative,
societies are “public authorities” under the Right to,
"Information Act, 2005 (central law No.22 of 2005). Co-",
operative institutions are bound to give all information,
"to applications under the RTI Act, if not given they will",
be subjected to punishment under the Act. For this all,
co-operative societies should appoint public,
information/assistant public information officers,
immediately and this should be published in the,
government website.,
2. For giving information for applicants government order,
No.8026/05/government administration department act,
Page 10,
11,
and rule can be applicable and 10 rupees can be,
charged as fees for each application. Also as per GAD,
Act and rule and the government Order No.2383/06,
dated 01.04.2006.,
3. Details of Right to Information Act are available in the,
government website (www.kerala.gov.in..... ) or right to,
information gov.in ) other details regarding the Act are,
also available in the government website.,
4. Hereafter application for information from co-operative,
institutions need not be accepted by the information,
officers of this department. But if they get such,
applications it should be given back showing the,
reasons or should be forwarded to the respective co-,
operative institutions with necessary directions and the,
applicant should be informed about this. In this case it,
is directed to follow the time limit strictly.,
5. It is directed that all joint registrars/assistant registrars,
should take immediate steps to bring this to the urgent,
notice of all co-operative institutions. They should,
inform to this office the steps taken within one week.,
The Government Order No.2389/06 dated 01.04.2006 is,
also enclosed.,
Sd/-,
V. Reghunath,
Registrar of co-operative societies (in,
charge)”,
"11. The State Government, it is seen, vide its letter dated",
5.5.2006 has informed the Registrar of Co-operative,
Page 11,
12,
"Societies that, as per Section 2(h) of the Act, all institutions",
formed by laws made by State Legislature is a “public,
"authority” and, therefore, all co-operative institutions",
coming under the administrative control of the Registrar of,
Co-operative Societies are also public authorities.,
12. We are in these appeals concerned only with the co-,
operative societies registered or deemed to be registered,
"under the Co-operative Societies Act, which are not owned,",
controlled or substantially financed by the State or Central,
"Government or formed, established or constituted by law",
made by Parliament or State Legislature.,
Co-operative Societies and Article 12 of the,
Constitution:,
"13. We may first examine, whether the Co-operative",
"Societies, with which we are concerned, will fall within the",
expression “State” within the meaning of Article 12 of the,
"Constitution of India and, hence subject to all constitutional",
limitations as enshrined in Part III of the Constitution. This,
Page 12,
13,
Court in U.P. State Co-operative Land Development,
Bank Limited v. Chandra Bhan Dubey and others,
"(1999) 1 SCC 741, while dealing with the question of the",
maintainability of the writ petition against the U.P. State Co-,
operative Development Bank Limited held the same as an,
instrumentality of the State and an authority mentioned in,
"Article 12 of the Constitution. On facts, the Court noticed",
that the control of the State Government on the Bank is all,
pervasive and that the affairs of the Bank are controlled by,
the State Government though it is functioning as a co-,
"operative society, it is an extended arm of the State and",
thus an instrumentality of the State or authority as,
mentioned under Article 12 of the Constitution. In All India,
Sainik Schools employees’ Association v. Defence,
"Minister-cum-Chairman Board of Governors, Sainik",
"Schools Society, New Delhi and others (1989)",
"Supplement 1 SCC 205, this Court held that the Sainik",
School society is “State” within the meaning of Article 12 of,
the Constitution after having found that the entire funding is,
by the State Government and by the Central Government,
Page 13,
14,
and the overall control vests in the governmental authority,
and the main object of the society is to run schools and,
prepare students for the purpose feeding the National,
Defence Academy.,
14. This Court in Executive Committee of Vaish Degree,
"College, Shamli and Others v. Lakshmi Narain and",
"Others (1976) 2 SCC 58, while dealing with the status of",
the Executive Committee of a Degree College registered,
"under the Co-operative Societies Act, held as follows:",
“10………It seems to us that before an institution,
can be a statutory body it must be created by or,
under the statute and owe its existence to a,
statute. This must be the primary thing which has,
got to be established. Here a distinction must be,
made between an institution which is not created,
by or under a statute but is governed by certain,
statutory provisions for the proper maintenance,
and administration of the institution. There have,
been a number of institutions which though not,
created by or under any statute have adopted,
"certain statutory provisions, but that by itself is",
"not, in our opinion, sufficient to clothe the",
institution with a statutory character……….”,
"15. We can, therefore, draw a clear distinction between a",
"body which is created by a Statute and a body which, after",
Page 14,
15,
"having come into existence, is governed in accordance with",
"the provisions of a Statute. Societies, with which we are",
"concerned, fall under the later category that is governed by",
"the Societies Act and are not statutory bodies, but only body",
corporate within the meaning of Section 9 of the Kerala Co-,
operative Societies Act having perpetual succession and,
"common seal and hence have the power to hold property,",
"enter into contract, institute and defend suites and other",
legal proceedings and to do all things necessary for the,
"purpose, for which it was constituted. Section 27 of the",
Societies Act categorically states that the final authority of a,
society vests in the general body of its members and every,
society is managed by the managing committee constituted,
in terms of the bye-laws as provided under Section 28 of the,
Societies Act. Final authority so far as such types of,
"Societies are concerned, as Statute says, is the general body",
and not the Registrar of Cooperative Societies or State,
Government.,
Page 15,
16,
16. This Court in Federal Bank Ltd. v. Sagar Thomas,
"and Others (2003) 10 SCC 733, held as follows:",
“32.Merely because Reserve Bank of India,
lays the banking policy in the interest of the,
banking system or in the interest of monetary,
stability or sound economic growth having due,
regard to the interests of the depositors etc. as,
provided under Section 5(c)(a) of the Banking,
Regulation Act does not mean that the private,
companies carrying on the business or commercial,
"activity of banking, discharge any public function",
or public duty. These are all regulatory measures,
applicable to those carrying on commercial,
activity in banking and these companies are to act,
according to these provisions failing which certain,
consequences follow as indicated in the Act itself.,
As to the provision regarding acquisition of a,
"banking company by the Government, it may be",
pointed out that any private property can be,
acquired by the Government in public interest. It is,
now a judicially accepted norm that private,
interest has to give way to the public interest. If a,
private property is acquired in public interest it,
does not mean that the party whose property is,
acquired is performing or discharging any function,
or duty of public character though it would be so,
for the acquiring authority”.,
"17. Societies are, of course, subject to the control of the",
"statutory authorities like Registrar, Joint Registrar, the",
"Government, etc. but cannot be said that the State exercises",
any direct or indirect control over the affairs of the society,
Page 16,
17,
which is deep and all pervasive. Supervisory or general,
"regulation under the statute over the co-operative societies,",
which are body corporate does not render activities of the,
body so regulated as subject to such control of the State so,
as to bring it within the meaning of the “State” or,
instrumentality of the State. Above principle has been,
"approved by this Court in S.S. Rana v. Registrar, Co-",
operative Societies and another (2006) 11 SCC 634. In,
that case this Court was dealing with the maintainability of,
the writ petition against the Kangra Central Co-operative,
"Society Bank Limited, a society registered under the",
provisions of the Himachal Pradesh Co-operative Societies,
"Act, 1968. After examining various provisions of the H.P. Co-",
operative Societies Act this Court held as follows:,
“9. It is not in dispute that the Society has not,
been constituted under an Act. Its functions like,
any other cooperative society are mainly,
"regulated in terms of the provisions of the Act,",
except as provided in the bye-laws of the Society.,
The State has no say in the functions of the,
"Society. Membership, acquisition of shares and all",
other matters are governed by the bye-laws,
framed under the Act. The terms and conditions of,
"an officer of the cooperative society, indisputably,",
"are governed by the Rules. Rule 56, to which",
Page 17,
18,
"reference has been made by Mr Vijay Kumar, does",
not contain any provision in terms whereof any,
legal right as such is conferred upon an officer of,
the Society.,
10. It has not been shown before us that the State,
exercises any direct or indirect control over the,
affairs of the Society for deep and pervasive,
control. The State furthermore is not the majority,
shareholder. The State has the power only to,
"nominate one Director. It cannot, thus, be said",
that the State exercises any functional control,
over the affairs of the Society in the sense that the,
majority Directors are nominated by the State. For,
arriving at the conclusion that the State has a,
"deep and pervasive control over the Society,",
several other relevant questions are required to be,
"considered, namely, (1) How was the Society",
created? (2) Whether it enjoys any monopoly,
character? (3) Do the functions of the Society,
partake to statutory functions or public functions?,
and (4) Can it be characterised as public,
authority?,
"11. Respondent 2, the Society does not answer",
any of the aforementioned tests. In the case of a,
"non-statutory society, the control thereover would",
mean that the same satisfies the tests laid down,
by this Court in Ajay Hasia v. Khalid Mujib,
Sehravardi. [See Zoroastrian Coop. Housing,
"Society Ltd. v. Distt. Registrar, Coop. Societies",
(Urban).],
12. It is well settled that general regulations under,
"an Act, like the Companies Act or the Cooperative",
"Societies Act, would not render the activities of a",
company or a society as subject to control of the,
State. Such control in terms of the provisions of,
the Act are meant to ensure proper functioning of,
Page 18,
19,
the society and the State or statutory authorities,
would have nothing to do with its day-to-day,
functions.”,
"18. We have, on facts, found that the Co-operative",
"Societies, with which we are concerned in these appeals, will",
not fall within the expression “State” or “instrumentalities of,
the State” within the meaning of Article 12 of the,
Constitution and hence not subject to all constitutional,
limitations as enshrined in Part III of the Constitution. We,
"may, however, come across situations where a body or",
organization though not a State or instrumentality of the,
"State, may still satisfy the definition of public authority",
"within the meaning of Section 2(h) of the Act, an aspect",
which we may discuss in the later part of this Judgment.,
Constitutional provisions and Co-operative autonomy:,
19. Rights of the citizens to form co-operative societies,
"voluntarily, is now raised to the level of a fundamental right",
and State shall endeavour to promote their autonomous,
"functioning. The Parliament, with a view to enhance public",
faith in the co-operative institutions and to insulate them to,
Page 19,
20,
avoidable political or bureaucratic interference brought in,
"Constitutional (97th Amendment) Act, 2011, which received",
"the assent of the President on 12.01.2012, notified in the",
Gazette of India on 13.01.2012 and came into force on,
15.02.2012.,
20. Constitutional amendment has been effected to,
encourage economic activities of co-operatives which in turn,
help progress of rural India. Societies are expected not only,
to ensure autonomous and democratic functioning of co-,
"operatives, but also accountability of the management to the",
members and other share stake-holders. Article 19 protects,
certain rights regarding freedom of speech. By virtue of,
above amendment under Article 19(1)(c) the words “co-,
operative societies” are added. Article 19(1)(c) reads as,
under:,
“19(1)(c) – All citizens shall have the right to form,
associations or unions or co-operative societies”.,
"Article 19(1)(c), therefore, guarantees the freedom to form",
"an association, unions and co-operative societies. Right to",
Page 20,
21,
"form a co-operative society is, therefore, raised to the level",
"of a fundamental right, guaranteed under the Constitution of",
India. Constitutional 97th Amendment Act also inserted a,
new Article 43B with reads as follows :-,
“the State shall endeavour to promote voluntary,
"formation, autonomous functioning, democratic",
control and professional management of co-,
operative societies”.,
"21. By virtue of the above-mentioned amendment, Part IX-",
B was also inserted containing Articles 243ZH to 243ZT.,
"Cooperative Societies are, however, not treated as units of",
"self-government, like Panchayats and Municipalities.",
22. Article 243(ZL) dealing with the supersession and,
suspension of board and interim management states that,
notwithstanding anything contained in any law for the time,
"being in force, no board shall be superseded or kept under",
suspension for a period exceeding six months. It provided,
further that the Board of any such co-operative society shall,
not be superseded or kept under suspension where there is,
no government shareholding or loan or financial assistance,
Page 21,
22,
or any guarantee by the Government. Such a constitutional,
restriction has been placed after recognizing the fact that,
there are co-operative societies with no government share,
holding or loan or financial assistance or any guarantee by,
the government.,
23. Co-operative society is a state subject under Entry 32,
List I Seventh Schedule to the Constitution of India. Most of,
the States in India enacted their own Co-operative Societies,
Act with a view to provide for their orderly development of,
the cooperative sector in the state to achieve the objects of,
"equity, social justice and economic development, as",
"envisaged in the Directive Principles of State Policy,",
enunciated in the Constitution of India. For co-operative,
"societies working in more than one State, The Multi State Co-",
"operative Societies Act, 1984 was enacted by the Parliament",
under Entry 44 List I of the Seventh Schedule of the,
Constitution. Co-operative society is essentially an,
association or an association of persons who have come,
Page 22,
23,
together for a common purpose of economic development or,
for mutual help.,
Right to Information Act,
24. The RTI Act is an Act enacted to provide for citizens to,
"secure, access to information under the control of public",
authorities and to promote transparency and accountability,
in the working of every public authority. The preamble of,
the Act reads as follows:,
“An Act to provide for setting out the,
practical regime of right to information for citizens,
to secure access to information under the control,
"of public authorities, in order to promote",
transparency and accountability in the working of,
"every public authority, the constitution of a",
Central Information Commission and State,
Information Commissions and for matters,
connected therewith or incidental thereto.,
WHEREAS the Constitution of India has,
established democratic Republic;,
AND WHEREAS democracy requires an,
informed citizenry and transparency of information,
which are vital to its functioning and also to,
contain corruption and to hold Governments and,
their instrumentalities accountable to the,
governed;,
Page 23,
24,
AND WHEREAS revelation of information in,
actual practice is likely to conflict with other public,
interests including efficient operations of the,
"Governments, optimum use of limited fiscal",
resources and the preservation of confidentiality of,
sensitive information;,
AND WHEREAS it is necessary to harmonise,
these conflicting interests while preserving the,
paramountcy of the democratic ideal;,
"NOW, THEREFORE, it is expedient to provide",
for furnishing certain information to citizens who,
desire to have it.”,
25. Every public authority is also obliged to maintain all its,
record duly catalogued and indexed in a manner and the,
form which facilitates the right to information under this Act,
and ensure that all records that are appropriate to be,
"computerized are, within a reasonable time and subject to",
"availability of resources, computerized and connected",
through a network all over the country on different systems,
so that access to such record is facilitated. Public authority,
"has also to carry out certain other functions also, as provided",
under the Act.,
26. The expression “public authority” is defined under,
"Section 2(h) of the RTI Act, which reads as follows:",
Page 24,
25,
"“2. Definitions._ In this Act, unless the context",
otherwise requires :,
"(h) ""public authority"" means any authority or",
body or institution of self-government,
established or constituted—,
(a) by or under the Constitution;,
(b) by any other law made by Parliament;,
(c) by any other law made by State,
Legislature;,
(d) by notification issued or order made by,
"the appropriate Government, and",
includes any—,
"(i) body owned, controlled or",
substantially financed;,
(ii) non-Government organisation,
"substantially financed, directly or",
indirectly by funds provided by the,
appropriate Government”,
"27. Legislature, in its wisdom, while defining the expression",
"“public authority” under Section 2(h), intended to embrace",
"only those categories, which are specifically included, unless",
the context of the Act otherwise requires. Section 2(h) has,
used the expressions ‘means’ and includes’. When a word is,
"defined to ‘mean’ something, the definition is prima facie",
restrictive and where the word is defined to ‘include’ some,
Page 25,
26,
"other thing, the definition is prima facie extensive. But when",
"both the expressions “means” and “includes” are used, the",
categories mentioned there would exhaust themselves.,
Meanings of the expressions ‘means’ and ‘includes’ have,
been explained by this Court in Delhi Development,
Authority v. Bhola Nath Sharma (Dead) by LRs and,
"others (2011) 2 SCC 54, (in paras 25 to 28). When such",
"expressions are used, they may afford an exhaustive",
"explanation of the meaning which for the purpose of the Act,",
must invariably be attached to those words and expressions.,
28. Section 2(h) exhausts the categories mentioned,
therein. The former part of 2(h) deals with:,
(1) an authority or body or institution of self-government,
"established by or under the Constitution,",
(2) an authority or body or institution of self-,
government established or constituted by any other,
"law made by the Parliament,",
(3) an authority or body or institution of self-government,
established or constituted by any other law made by,
"the State legislature, and",
Page 26,
27,
(4) an authority or body or institution of self-government,
established or constituted by notification issued or,
order made by the appropriate government.,
"29. Societies, with which we are concerned, admittedly, do",
"not fall in the above mentioned categories, because none of",
"them is either a body or institution of self-government,",
"established or constituted under the Constitution, by law",
"made by the Parliament, by law made by the State",
Legislature or by way of a notification issued or made by the,
appropriate government. Let us now examine whether they,
"fall in the later part of Section 2(h) of the Act, which",
embraces within its fold:,
"(5) a body owned, controlled or substantially financed,",
directly or indirectly by funds provided by the,
"appropriate government,",
(6) non-governmental organizations substantially financed,
directly or indirectly by funds provided by the,
appropriate government.,
30 The expression ‘Appropriate Government’ has also,
"been defined under Section 2(a) of the RTI Act, which reads",
as follows :,
Page 27,
28,
“2(a). “appropriate Government” means in,
relation to a public authority which is,
"established, constituted, owned, controlled",
or substantially financed by funds provided,
directly or indirectly-,
(i) by the Central Government or the,
"Union territory administration, the",
Central Government;,
"(ii) by the State Government, the State",
Government.”,
"31. The RTI Act, therefore, deals with bodies which are",
"owned, controlled or substantially financed, directly or",
"indirectly, by funds provided by the appropriate government",
and also non-government organizations substantially,
"financed, directly or indirectly, by funds provided by the",
"appropriate government, in the event of which they may fall",
within the definition of Section 2(h)(d)(i) or (ii) respectively.,
"As already pointed out, a body, institution or an organization,",
which is neither a State within the meaning of Article 12 of,
"the Constitution or instrumentalities, may still answer the",
definition of public authority under Section 2(h)d (i) or (ii).,
(a) Body owned by the appropriate government – A,
body owned by the appropriate government clearly falls,
"under Section 2(h)(d)(i) of the Act. A body owned, means to",
Page 28,
29,
have a good legal title to it having the ultimate control over,
"the affairs of that body, ownership takes in its fold control,",
finance etc. Further discussion of this concept is,
"unnecessary because, admittedly, the societies in question",
are not owned by the appropriate government.,
(b) Body Controlled by the Appropriate Government,
A body which is controlled by the appropriate,
government can fall under the definition of public authority,
under Section 2h(d)(i). Let us examine the meaning of the,
expression “controlled” in the context of RTI Act and not in,
the context of the expression “controlled” judicially,
interpreted while examining the scope of the expression,
“State” under Article 12 of the Constitution or in the context,
of maintainability of a writ against a body or authority under,
Article 226 of the Constitution of India. The word,
"“control” or “controlled” has not been defined in the RTI Act,",
"and hence, we have to understand the scope of the",
expression ‘controlled’ in the context of the words which,
exist prior and subsequent i.e. “body owned” and,
Page 29,
30,
“substantially financed” respectively. The meaning of the,
word “control” has come up for consideration in several,
cases before this Court in different contexts. In State of,
"West Bengal and another v. Nripendra Nath Bagchi,",
AIR 1966 SC 447 while interpreting the scope of Article 235,
"of the Constitution of India, which confers control by the",
"High Court over District Courts, this Court held that the word",
“control” includes the power to take disciplinary action and,
all other incidental or consequential steps to effectuate this,
end and made the following observations :,
"“The word ‘control’, as we have seen, was used for",
the first time in the Constitution and it is,
accompanied by the word ‘vest’ which is a strong,
word. It shows that the High Court is made the,
sole custodian of the control over the judiciary.,
"Control, therefore, is not merely the power to",
arrange the day to day working of the court but,
contemplates disciplinary jurisdiction over the,
"presiding Judge.... In our judgment, the control",
which is vested in the High Court is a complete,
control subject only to the power of the Governor,
in the matter of appointment (including dismissal,
and removal) and posting and promotion of,
District Judges. Within the exercise of the control,
"vested in the High Court, the High Court can hold",
"enquiries, impose punishments other than",
"dismissal or removal, ...”",
Page 30,
31,
32. The above position has been reiterated by this Court in,
Chief Justice of Andhra Pradesh and others v. L.V.A.,
Dixitulu and others (1979) 2 SCC 34. In Corporation of,
"the City of Nagpur Civil Lines, Nagpur and another v.",
"Ramchandra and others (1981) 2 SCC 714, while",
interpreting the provisions of Section 59(3) of the City of,
"Nagpur Corporation Act, 1948, this Court held as follows :",
“4. It is thus now settled by this Court that the,
term “control” is of a very wide connotation and,
amplitude and includes a large variety of powers,
which are incidental or consequential to achieve,
the powers-vested in the authority,
concerned…….”,
33. The word “control” is also sometimes used synonyms,
"with superintendence, management or authority to direct,",
restrict or regulate by a superior authority in exercise of its,
supervisory power. This Court in The Shamrao Vithal Co-,
operative Bank Ltd. v. Kasargode Pandhuranga,
"Mallya (1972) 4 SCC 600, held that the word “control” does",
not comprehend within itself the adjudication of a claim,
made by a co-operative society against its members. The,
Page 31,
32,
meaning of the word “control” has also been considered by,
this Court in State of Mysore v. Allum Karibasappa &,
"Ors. (1974) 2 SCC 498, while interpreting Section 54 of the",
"Mysore Cooperative Societies Act, 1959 and Court held that",
"the word “control” suggests check, restraint or influence and",
intended to regulate and hold in check and restraint from,
action. The expression “control” again came up for,
consideration before this Court in Madan Mohan,
"Choudhary v. State of Bihar & Ors. (1999) 3 SCC 396, in",
the context of Article 235 of the Constitution and the Court,
held that the expression “control” includes disciplinary,
"control, transfer, promotion, confirmation, including transfer",
of a District Judge or recall of a District Judge posted on ex-,
cadre post or on deputation or on administrative post etc. so,
also premature and compulsory retirement. Reference may,
also be made to few other judgments of this Court reported,
in Gauhati High Court and another v. Kuladhar Phukan,
"and another (2002) 4 SCC 524, State of Haryana v.",
"Inder Prakash Anand HCS and others (1976) 2 SCC 977,",
High Court of Judicature for Rajasthan v. Ramesh,
Page 32,
33,
"Chand Paliwal and Another (1998) 3 SCC 72, Kanhaiya",
"Lal Omar v. R.K. Trivedi and others (1985) 4 SCC 628,",
TMA Pai Foundation and others v. State of Karnataka,
"(2002) 8 SCC 481, Ram Singh and others v. Union",
"Territory, Chandigarh and others (2004) 1 SCC 126, etc.",
34. We are of the opinion that when we test the meaning of,
expression “controlled” which figures in between the words,
"“body owned” and “substantially financed”, the control by",
the appropriate government must be a control of a,
substantial nature. The mere ‘supervision’ or ‘regulation’ as,
such by a statute or otherwise of a body would not make,
that body a “public authority” within the meaning of Section,
2(h)(d)(i) of the RTI Act. In other words just like a body,
owned or body substantially financed by the appropriate,
"government, the control of the body by the appropriate",
government would also be substantial and not merely,
supervisory or regulatory. Powers exercised by the Registrar,
of Cooperative Societies and others under the Cooperative,
"Societies Act are only regulatory or supervisory in nature,",
Page 33,
34,
which will not amount to dominating or interfering with the,
management or affairs of the society so as to be controlled.,
Management and control are statutorily conferred on the,
Management Committee or the Board of Directors of the,
Society by the respective Cooperative Societies Act and not,
on the authorities under the Co-operative Societies Act.,
"35. We are, therefore, of the view that the word",
“controlled” used in Section 2(h)(d)(i) of the Act has to be,
understood in the context in which it has been used vis-a-vis,
a body owned or substantially financed by the appropriate,
"government, that is the control of the body is of such a",
degree which amounts to substantial control over the,
management and affairs of the body.,
SUBSTANTIALLY FINANCED,
36. The words “substantially financed” have been used in,
"Sections 2(h)(d)(i) & (ii), while defining the expression public",
Page 34,
35,
"authority as well as in Section 2(a) of the Act, while defining",
the expression “appropriate Government”. A body can be,
"substantially financed, directly or indirectly by funds",
provided by the appropriate Government. The expression,
"“substantially financed”, as such, has not been defined",
under the Act. “Substantial” means “in a substantial,
manner so as to be substantial”. In Palser v. Grimling,
"(1948) 1 All ER 1, 11 (HL), while interpreting the provisions",
of Section 10(1) of the Rent and Mortgage Interest,
"Restrictions Act, 1923, the House of Lords held that",
“substantial” is not the same as “not unsubstantial” i.e. just,
enough to avoid the de minimis principle. The word,
"“substantial” literally means solid, massive etc. Legislature",
has used the expression “substantially financed” in Sections,
2(h)(d)(i) and (ii) indicating that the degree of financing must,
"be actual, existing, positive and real to a substantial extent,",
"not moderate, ordinary, tolerable etc.",
37. We often use the expressions “questions of law” and,
“substantial questions of law” and explain that any question,
Page 35,
36,
of law affecting the right of parties would not by itself be a,
substantial question of law. In Black's Law Dictionary,
"(6th Edn.), the word 'substantial' is defined as 'of real worth",
and importance; of considerable value; valuable. Belonging,
to substance; actually existing; real: not seeming or,
imaginary; not illusive; solid; true; veritable. Something,
worthwhile as distinguished from something without value or,
merely nominal. Synonymous with material.' The word,
'substantially' has been defined to mean 'essentially; without,
material qualification; in the main; in substance; materially.',
"In the Shorter Oxford English Dictionary (5th Edn.), the word",
'substantial' means 'of ample or considerable amount of size;,
"sizeable, fairly large; having solid worth or value, of real",
"significance; sold; weighty; important, worthwhile; of an act,",
"measure etc. having force or effect, effective, thorough.' The",
word 'substantially' has been defined to mean 'in substance;,
"as a substantial thing or being; essentially, intrinsically.'",
Therefore the word 'substantial' is not synonymous with,
'dominant' or 'majority'. It is closer to 'material' or,
'important' or 'of considerable value.' 'Substantially' is closer,
Page 36,
37,
to 'essentially'. Both words can signify varying degrees,
depending on the context.,
"38. Merely providing subsidiaries, grants, exemptions,",
"privileges etc., as such, cannot be said to be providing",
"funding to a substantial extent, unless the record shows that",
the funding was so substantial to the body which practically,
"runs by such funding and but for such funding, it would",
struggle to exist. The State may also float many schemes,
generally for the betterment and welfare of the cooperative,
"sector like deposit guarantee scheme, scheme of assistance",
"from NABARD etc., but those facilities or assistance cannot",
be termed as “substantially financed” by the State,
Government to bring the body within the fold of “public,
"authority” under Section 2(h)(d)(i) of the Act. But, there are",
"instances, where private educational institutions getting",
ninety five per cent grant-in-aid from the appropriate,
"government, may answer the definition of public authority",
under Section 2(h)(d)(i).,
Page 37,
38,
NON-GOVERNMENT ORGANISATIONS:,
"39. The term “Non-Government Organizations” (NGO), as",
"such, is not defined under the Act. But, over a period of",
"time, the expression has got its own meaning and, it has to",
"be seen in that context, when used in the Act. Government",
"used to finance substantially, several non-government",
"organizations, which carry on various social and welfare",
"activities, since those organizations sometimes carry on",
"functions which are otherwise governmental. Now, the",
"question, whether an NGO has been substantially financed or",
"not by the appropriate Government, may be a question of",
"fact, to be examined by the authorities concerned under the",
RTI Act. Such organization can be substantially financed,
either directly or indirectly by funds provided by the,
appropriate Government. Government may not have any,
"statutory control over the NGOs, as such, still it can be",
established that a particular NGO has been substantially,
financed directly or indirectly by the funds provided by the,
"appropriate Government, in such an event, that organization",
Page 38,
39,
will fall within the scope of Section 2(h)(d)(ii) of the RTI Act.,
"Consequently, even private organizations which are, though",
not owned or controlled but substantially financed by the,
appropriate Government will also fall within the definition of,
“public authority” under Section 2(h)(d)(ii) of the Act.,
BURDEN TO SHOW:,
"40. The burden to show that a body is owned, controlled or",
substantially financed or that a non-government,
organization is substantially financed directly or indirectly by,
the funds provided by the appropriate Government is on the,
applicant who seeks information or the appropriate,
Government and can be examined by the State Information,
Commission or the Central Information Commission as the,
"case may be, when the question comes up for consideration.",
"A body or NGO is also free to establish that it is not owned,",
controlled or substantially financed directly or indirectly by,
the appropriate Government.,
Page 39,
40,
41. Powers have been conferred on the Central Information,
Commissioner or the State Information Commissioner under,
Section 18 of the Act to inquire into any complaint received,
from any person and the reason for the refusal to access to,
"any information requested from a body owned, controlled or",
"substantially financed, or a non-government organization",
substantially financed directly or indirectly by the funds,
provided by the appropriate Government. Section 19 of the,
Act provides for an appeal against the decision of the Central,
Information Officer or the State Information Officer to such,
officer who is senior in rank to the Central Information,
"Officer or the State Information Officer, as the case may be,",
"in each public authority. Therefore, there is inbuilt",
mechanism in the Act itself to examine whether a body is,
"owned, controlled or substantially financed or an NGO is",
"substantially financed, directly or indirectly, by funds",
provided by the appropriate authority.,
42. Legislative intention is clear and is discernible from,
"Section 2(h) that intends to include various categories,",
Page 40,
41,
discussed earlier. It is trite law that the primarily language,
employed is the determinative factor of the legislative,
intention and the intention of the legislature must be found,
in the words used by the legislature itself. In Magor and,
St. Mellons Rural District Council v. New Port,
Corporation (1951) 2 All ER 839(HL) stated that the courts,
are warned that they are not entitled to usurp the legislative,
function under the guise of interpretation. This Court in,
D.A. Venkatachalam and others v. Dy. Transport,
"Commissioner and others (1977) 2 SCC 273, Union of",
India v. Elphinstone Spinning and Weaving Co. Ltd.,
"and others (2001) 4 SCC 139, District Mining Officer",
and others v. Tata Iron & Steel Co. and another (2001),
"7 SCC 358, Padma Sundara Rao (Dead) and others v.",
"State of Tamil Nadu and others (2002) 3 SCC 533,",
Maulvi Hussain Haji Abraham Umarji v. State of,
Gujarat and another (2004) 6 SCC 672 held that the court,
must avoid the danger of an apriori determination of the,
meaning of a provision based on their own preconceived,
notions of ideological structure or scheme into which the,
Page 41,
42,
provisions to be interpreted is somehow fitted. It is trite law,
"that words of a statute are clear, plain and unambiguous i.e.",
"they are reasonably susceptible to only one meaning, the",
courts are bound to give effect to that meaning irrespective,
"of the consequences, meaning thereby when the language is",
"clear and unambiguous and admits of only one meaning, no",
"question of construction of a statute arises, for the statute",
speaks for itself. This Court in Kanai Lal Sur v.,
Paramnidhi Sadhukhan AIR 1957 SC 907 held that “if the,
words used are capable of one construction only then it,
would not be open to courts to adopt any other hypothetical,
construction on the ground that such construction is more,
consistent with the alleged object and policy of the Act.”,
43. We are of the view that the High Court has given a,
complete go-bye to the above-mentioned statutory,
principles and gone at a tangent by mis-interpreting the,
meaning and content of Section 2(h) of the RTI Act. Court,
has given a liberal construction to expression “public,
"authority” under Section 2(h) of the Act, bearing in mind the",
Page 42,
43,
“transformation of law” and its “ultimate object” i.e. to,
"achieve “transparency and accountability”, which according",
to the court could alone advance the objective of the Act.,
"Further, the High Court has also opined that RTI Act will",
certainly help as a protection against the mismanagement of,
the society by the managing committee and the society’s,
liabilities and that vigilant members of the public body by,
"obtaining information through the RTI Act, will be able to",
"detect and prevent mismanagement in time. In our view,",
the categories mentioned in Section 2(h) of the Act exhaust,
"themselves, hence, there is no question of adopting a liberal",
construction to the expression “public authority” to bring in,
"other categories into its fold, which do not satisfy the tests",
"we have laid down. Court cannot, when language is clear",
"and unambiguous, adopt such a construction which,",
"according to the Court, would only advance the objective of",
the Act. We are also aware of the opening part of the,
definition clause which states “unless the context otherwise,
requires”. No materials have been made available to show,
"that the cooperative societies, with which we are concerned,",
Page 43,
44,
"in the context of the Act, would fall within the definition of",
Section 2(h) of the Act.,
Right to Information and the Right to Privacy,
44. People’s right to have access to an official information,
finds place in Resolution 59(1) of the UN General Assembly,
held in 1946. It states that freedom of information is a,
fundamental human right and the touchstone to all the,
freedoms to which the United Nations is consecrated. India,
is a party to the International Covenant on Civil and Political,
Rights and hence India is under an obligation to effectively,
guarantee the right to information. Article 19 of the,
Universal Declaration of Human Rights also recognizes right,
to information. Right to information also emanates from the,
fundamental right guaranteed to citizens under Article 19(1),
(a) of the Constitution of India. Constitution of India does not,
explicitly grant a right to information. In Bennet Coleman,
& Co. and others Vs. Union of India and others (1972),
"2 SCC 788, this Court observed that it is indisputable that by",
"“Freedom of Press” meant the right of all citizens to speak,",
Page 44,
45,
publish and express their views and freedom of speech and,
expression includes within its compass the right of all,
citizens to read and be informed. In Union of India Vs.,
Association of Democratic Reforms and another (2002),
"5 SCC 294, this Court held that the right to know about the",
antecedents including criminal past of the candidates,
contesting the election for Parliament and State Assembly is,
a very important and basic facets for survival of democracy,
"and for this purpose, information about the candidates to be",
selected must be disclosed. In State of U.P. Vs. Raj,
"Narain and others (1975) 4 SCC 428, this Court recognized",
that the right to know is the right that flows from the right of,
freedom of speech and expression guaranteed under Article,
19(1)(a) of the Constitution. In People’s Union for Civil,
Liberties (PUCL) and others Vs. Union of India and,
"another (2003) 4 SCC 399, this Court observed that the",
right to information is a facet of freedom of speech and,
expression contained in Article 19(1)(a) of the Constitution of,
India. Right to information thus indisputably is a,
Page 45,
46,
"fundamental right, so held in several judgments of this",
"Court, which calls for no further elucidation.",
"45. The Right to Information Act, 2005 is an Act which",
provides for setting up the practical regime of right to,
information for citizens to secure access to information,
under the control of public authorities in order to promote,
transparency and accountability in the working of every,
public authority. Preamble of the Act also states that the,
democracy requires an informed citizenry and transparency,
of information which are vital to its functioning and also to,
contain corruption and to hold Governments and their,
instrumentalities accountable to the governed. Citizens,
"have, however, the right to secure access to information of",
only those matters which are “under the control of public,
"authorities”, the purpose is to hold “Government and its",
instrumentalities” accountable to the governed.,
"Consequently, though right to get information is a",
fundamental right guaranteed under Article 19(1)(a) of the,
"Constitution, limits are being prescribed under the Act itself,",
Page 46,
47,
which are reasonable restrictions within the meaning of,
Article 19(2) of the Constitution of India.,
46. Right to privacy is also not expressly guaranteed under,
"the Constitution of India. However, the Privacy Bill, 2011 to",
provide for the right to privacy to citizens of India and to,
"regulate the collection, maintenance and dissemination of",
their personal information and for penalization for violation,
"of such rights and matters connected therewith, is pending.",
In several judgments including Kharak Singh Vs. State of,
"U.P. and others AIR 1963 SC 1295, R. Rajagopal alias",
R.R. Gopal and another Vs. State of Tamil Nadu and,
"others (1994) 6 SCC 632, People’s Union for Civil",
Liberties (PUCL) Vs. Union of India and another (1997),
1 SCC 301 and State of Maharashtra Vs. Bharat Shanti,
"Lal Shah and others (2008) 13 SCC 5, this Court has",
recognized the right to privacy as a fundamental right,
emanating from Article 21 of the Constitution of India. Right,
to privacy is also recognized as a basic human right under,
Page 47,
48,
"Article 12 of the Universal Declaration of Human Rights Act,",
"1948, which states as follows:",
“No one shall be subjected to arbitrary,
"interference with his privacy, family, home or",
"correspondence, not to attack upon his honour",
and reputation. Everyone has the right to the,
protection of law against such interference or,
attacks.”,
Article 17 of the International Covenant on Civil and Political,
"Rights Act, 1966, to which India is a party also protects that",
right and states as follows:,
“No one shall be subjected to arbitrary or unlawful,
"interference with his privacy, family, home and",
correspondence nor to unlawful attacks on his,
honour and reputation….”,
This Court in R. Rajagopal (supra) held as follows :-,
“The right to privacy is implicit in the right to life,
and liberty guaranteed to the citizens of this,
country by Article 21. It is a “right to be let,
alone”. A citizen has a right to safeguard the,
"privacy of his own, his family, marriage,",
"procreation, motherhood, child bearing and",
education among other matters.”,
Page 48,
49,
Restrictions and Limitations:,
"47. Right to information and Right to privacy are, therefore,",
"not absolute rights, both the rights, one of which falls under",
Article 19(1)(a) and the other under Article 21 of the,
"Constitution of India, can obviously be regulated, restricted",
and curtailed in the larger public interest. Absolute or,
uncontrolled individual rights do not and cannot exist in any,
modern State. Citizens’ right to get information is statutorily,
"recognized by the RTI Act, but at the same time limitations",
"are also provided in the Act itself, which is discernible from",
"the Preamble and other provisions of the Act. First of all, the",
scope and ambit of the expression “public authority” has,
been restricted by a statutory definition under Section 2(h),
limiting it to the categories mentioned therein which exhaust,
"itself, unless the context otherwise requires. Citizens, as",
"already indicated by us, have a right to get information, but",
can have access only to the information “held” and under,
"the “control of public authorities”, with limitations. If the",
Page 49,
50,
"information is not statutorily accessible by a public authority,",
"as defined in Section 2(h) of the Act, evidently, those",
information will not be under the “control of the public,
"authority”. Resultantly, it will not be possible for the citizens",
to secure access to those information which are not under,
"the control of the public authority. Citizens, in that event,",
"can always claim a right to privacy, the right of a citizen to",
"access information should be respected, so also a citizen’s",
right to privacy.,
48. Public authority also is not legally obliged to give or,
"provide information even if it is held, or under its control, if",
that information falls under clause (j) of Sub-section (1) of,
Section 8. Section 8(1)(j) is of considerable importance so,
"far as this case is concerned, hence given below, for ready",
reference:-,
“8. Exemption from disclosure of,
information – (1) Notwithstanding anything,
"contained in this Act, there shall be no obligation",
to give any citizen –,
(a) to (i) xxx xxx xxx,
Page 50,
51,
(j) information which relates to personal,
information the disclosure of which has no,
"relationship to any public activity or interest, or",
which would cause unwarranted invasion of the,
privacy of the individual unless the Central Public,
Information Officer or the State Public Information,
"Officer or the appellate authority, as the case may",
"be, is satisfied that the larger public interest",
justifies the disclosure of such information:,
Provided that the information which cannot be,
denied to the Parliament or a State Legislature,
shall not be denied to any person.”,
"49. Section 8 begins with a non obstante clause, which",
"gives that Section an overriding effect, in case of conflict,",
"over the other provisions of the Act. Even if, there is any",
"indication to the contrary, still there is no obligation on the",
public authority to give information to any citizen of what,
"has been mentioned in clauses (a) to (j). Public authority,",
"as already indicated, cannot access all the information from",
"a private individual, but only those information which he is",
"legally obliged to pass on to a public authority by law, and",
also only those information to which the public authority can,
have access in accordance with law. Even those,
"information, if personal in nature, can be made available",
only subject to the limitations provided in Section 8(j) of the,
Page 51,
52,
"RTI Act. Right to be left alone, as propounded in Olmstead",
v. The United States reported in 1927 (277) US 438 is the,
most comprehensive of the rights and most valued by,
civilized man.,
50. Recognizing the fact that the right to privacy is a,
"sacrosanct facet of Article 21 of the Constitution, the",
legislation has put a lot of safeguards to protect the rights,
"under Section 8(j), as already indicated. If the information",
sought for is personal and has no relationship with any,
public activity or interest or it will not sub-serve larger public,
"interest, the public authority or the officer concerned is not",
legally obliged to provide those information. Reference may,
be made to a recent judgment of this Court in Girish,
Ramchandra Deshpande v. Central Information,
"Commissioner and others (2013) 1 SCC 212, wherein this",
Court held that since there is no bona fide public interest in,
"seeking information, the disclosure of said information would",
cause unwarranted invasion of privacy of the individual,
"under Section 8(1)(j) of the Act. Further, if the authority",
Page 52,
53,
finds that information sought for can be made available in,
"the larger public interest, then the officer should record his",
"reasons in writing before providing the information, because",
"the person from whom information is sought for, has also a",
right to privacy guaranteed under Article 21 of the,
Constitution.,
"51. We have found, on facts, that the Societies, in these",
"appeals, are not public authorities and, hence, not legally",
obliged to furnish any information sought for by a citizen,
"under the RTI Act. All the same, if there is any dispute on",
facts as to whether a particular Society is a public authority,
"or not, the State Information Commission can examine the",
same and find out whether the Society in question satisfies,
"the test laid in this judgment. Now, the next question is",
whether a citizen can have access to any information of,
these Societies through the Registrar of Cooperative,
"Societies, who is a public authority within the meaning of",
Section 2(h) of the Act.,
Registrar of Cooperative Societies,
Page 53,
54,
52. Registrar of Cooperative Societies functioning under the,
Cooperative Societies Act is a public authority within the,
"meaning of Section 2(h) of the Act. As a public authority,",
Registrar of Co-operative Societies has been conferred with,
lot of statutory powers under the respective Act under which,
he is functioning. He is also duty bound to comply with the,
obligations under the RTI Act and furnish information to a,
citizen under the RTI Act. Information which he is expected,
to provide is the information enumerated in Section 2(f) of,
the RTI Act subject to the limitations provided under Section,
"8 of the Act. Registrar can also, to the extent law permits,",
"gather information from a Society, on which he has",
supervisory or administrative control under the Cooperative,
"Societies Act. Consequently, apart from the information as is",
"available to him, under Section 2(f), he can also gather those",
"information from the Society, to the extent permitted by law.",
Registrar is also not obliged to disclose those information if,
those information fall under Section 8(1)(j) of the Act. No,
"provision has been brought to our knowledge indicating that,",
Page 54,
55,
"under the Cooperative Societies Act, a Registrar can call for",
the details of the bank accounts maintained by the citizens,
or members in a cooperative bank. Only those information,
which a Registrar of Cooperative Societies can have access,
under the Cooperative Societies Act from a Society could be,
said to be the information which is “held” or “under the,
"control of public authority”. Even those information,",
"Registrar, as already indicated, is not legally obliged to",
provide if those information falls under the exempted,
category mentioned in Section 8(j) of the Act. Apart from,
"the Registrar of Co-operative Societies, there may be other",
public authorities who can access information from a Co-,
operative Bank of a private account maintained by a,
"member of Society under law, in the event of which, in a",
"given situation, the society will have to part with that",
information. But the demand should have statutory backing.,
"53. Consequently, an information which has been sought",
"for relates to personal information, the disclosure of which",
has no relationship to any public activity or interest or which,
Page 55,
56,
would cause unwarranted invasion of the privacy of the,
"individual, the Registrar of Cooperative Societies, even if he",
"has got that information, is not bound to furnish the same to",
"an applicant, unless he is satisfied that the larger public",
"interest justifies the disclosure of such information, that too,",
for reasons to be recorded in writing.,
"54. We, therefore, hold that the Cooperative Societies",
registered under the Kerala Co-operative Societies Act will,
not fall within the definition of “public authority” as defined,
under Section 2(h) of the RTI Act and the State Government,
letter dated 5.5.2006 and the circular dated 01.06.2006,
"issued by the Registrar of Co-operative Societies, Kerala, to",
"the extent, made applicable to societies registered under the",
Kerala Co-operative Societies Act would stand quashed in,
"the absence of materials to show that they are owned,",
controlled or substantially financed by the appropriate,
"Government. Appeals are, therefore, allowed as above,",
"however, with no order as to costs.",
Page 56,
57,
………..………………….J.,
(K.S. Radhakrishnan),
……………………………J.,
(A.K. Sikri),
"New Delhi,",
"October 07, 2013",
Page 57,
\224Ú REPORTABLE,
IN THE SUPREME COURT OF INDIA,
CIVIL ORIGINAL JURISDICTION,
TRANSFERRED CASE (CIVIL) NO. 91 OF 2015,
(Arising out of Transfer Petition (Civil) No. 707 of 2012),
Reserve Bank of India ........Petitioner(s),
versus,
Jayantilal N. Mistry .....Respondent(s),
With,
TRANSFERRED CASE (CIVIL) NO. 92 OF 2015,
(Arising out of Transfer Petition (Civil) No. 708 of 2012),
I.C.I.C.I Bank Limited ........ Petitioner(s),
versus,
S.S. Vohra and others .........Respondent(s),
TRANSFERRED CASE (CIVIL) NO. 93 OF 2015,
(Arising out of Transfer Petition (Civil) No. 711 of 2012),
National Bank for Agriculture,
and Rural Development .........Petitioner(s),
versus,
Kishan Lal Mittal .........Respondent(s),
TRANSFERRED CASE (CIVIL) NO. 94 OF 2015,
(Arising out of Transfer Petition (Civil) No. 712 of 2012),
Reserve Bank of India ..........Petitioner(s),
versus,
P.P. Kapoor ..........Respondent(s),
Signature Not Verified,
Digitally signed by,
Sanjay Kumar,
Date: 2015.12.16,
13:23:34 IST,
Reason:,
1,
TRANSFERRED CASE (CIVIL) NO. 95 OF 2015,
(Arising out of Transfer Petition (Civil) No. 713 of 2012),
Reserve Bank of India ..........Petitioner(s),
versus,
Subhas Chandra Agrawal ..........Respondent(s),
TRANSFERRED CASE (CIVIL) NO. 96 OF 2015,
(Arising out of Transfer Petition (Civil) No. 715 of 2012),
Reserve Bank of India ..........Petitioner(s),
versus,
Raja M. Shanmugam ..........Respondent(s),
TRANSFERRED CASE (CIVIL) NO. 97 OF 2015,
(Arising out of Transfer Petition (Civil) No. 716 of 2012),
National Bank for Agriculture,
and Rural Development ..........Petitioner(s),
versus,
Sanjay Sitaram Kurhade ..........Respondent(s),
TRANSFERRED CASE (CIVIL) NO. 98 OF 2015,
(Arising out of Transfer Petition (Civil) No. 717 of 2012),
Reserve Bank of India ..........Petitioner(s),
versus,
K.P. Muralidharan Nair ...........Respondent(s),
TRANSFERRED CASE (CIVIL) NO. 99 OF 2015,
(Arising out of Transfer Petition (Civil) No. 718 of 2012),
Reserve Bank of India ..........Petitioner(s),
versus,
Ashwini Dixit ...........Respondent(s),
2,
TRANSFERRED CASE (CIVIL) NO. 100 OF 2015,
(Arising out of Transfer Petition (Civil) No. 709 of 2012),
Reserve Bank of India .........Petitioner(s),
versus,
A.Venugopal and another .........Respondent(s),
TRANSFERRED CASE (CIVIL) NO. 101 OF 2015,
(Arising out of Transfer Petition (Civil) No. 714 of 2012),
Reserve Bank of India .........Petitioner(s),
versus,
Dr. Mohan K. Patil and others .........Respondent(s),
JUDGMENT,
"M.Y. EQBAL, J.",
The main issue that arises for our consideration in these,
transferred cases is as to whether all the information sought,
"for under the Right to Information Act, 2005 can be denied by",
the Reserve Bank of India and other Banks to the public at,
"large on the ground of economic interest, commercial",
"confidence, fiduciary relationship with other Bank on the one",
hand and the public interest on the other. If the answer to,
"above question is in negative, then upto what extent the",
information can be provided under the 2005 Act.,
3,
2. It has been contended by the RBI that it carries out,
inspections of banks and financial institutions on regular,
basis and the inspection reports prepared by it contain a wide,
range of information that is collected in a fiduciary capacity.,
The facts in brief of the Transfer Case No.91 of 2015 are that,
"during May-June, 2010 the statutory inspection of Makarpura",
Industrial Estate Cooperative Bank Ltd. was conducted by RBI,
"under the Banking Regulation Act, 1949. Thereafter, in",
"October 2010, the Respondent sought following information",
"from the CPIO of RBI under the Act of 2005, reply to which is",
tabulated hereunder:,
Sr. No. Information sought Reply,
1. Procedure Rules and RBI is conducting inspections,
Regulations of Inspection under Section 35 of the B.R. Act,
being carried out on 1949 (AACS) at prescribed,
Co-operative Banks intervals.,
2. Last RBI investigation and The Information sought is,
audit report carried out by maintained by the bank in a,
Shri Santosh Kumar during fiduciary capacity and was,
"23rd April, 2010 to 6th May, obtained by Reserve Bank during",
2010 sent to Registrar of the the course of inspection of the,
Cooperative of the Gujarat bank and hence cannot be given to,
"State, Gandhinagar on the outsiders. Moreover, disclosure",
Makarpura Industrial Estate of such information may harm the,
Co-op Bank Ltd Reg. No.2808 interest of the bank & banking,
system. Such information is also,
exempt from disclosure under,
"Section 8(1) (a) & (e) of the RTI Act,",
4,
2005.,
3. Last 20 years inspection Same as at (2) above,
(carried out with name of,
inspector) report on above,
bank and action taken report.,
4. (i) Reports on all co-operative (i) Same as at (2) above,
banks gone on liquidation,
(ii) This information is not,
(ii) action taken against all available with the,
Directors and Managers for Department,
recovery of public funds and,
powers utilized by RBI and,
analysis and procedure,
adopted.,
5. Name of remaining No specific information has,
co-operative banks under been sought,
your observations against,
irregularities and action,
taken reports,
6. Period required to take No specific information has,
action and implementations been sought,
"3. On 30.3.2011, the First Appellate Authority disposed of",
the appeal of the respondent agreeing with the reply given by,
"CPIO in query No.2, 3 & first part of 4, relying on the decision",
of the Full Bench of CIC passed in the case of Ravin,
Ranchochodlal Patel and another vs. Reserve Bank of India.,
"Thereafter, in the second appeal preferred by the aggrieved",
"respondent, the Central Information Commission by the",
"impugned order dated 01.11.2011, directed RBI to provide",
5,
information as per records to the Respondent in relation to,
queries Nos.2 to 6 before 30.11.2011. Aggrieved by the,
"decision of the Central Information Commission (CIC),",
petitioner RBI moved the Delhi High Court by way of a Writ,
Petition inter alia praying for quashing of the aforesaid order of,
"the CIC. The High Court, while issuing notice, stayed the",
operation of the aforesaid order.,
"4. Similarly, in Transfer Case No. 92 of 2015, the",
Respondent sought following information from the CPIO of RBI,
"under the Act of 2005, reply to which is tabulated hereunder:",
Sr. Information sought Reply,
No.,
1. The Hon’ble FM made a In the absence of the specific,
"written statement on the Floor details, we are not able to provide",
of the House which inter alia any information.,
must have been made after,
verifying the records from RBI,
and the Bank must have the,
copy of the facts as reported,
by FM. Please supply copy of,
the note sent to FM,
2. The Hon’ble FM made a We do not have this information.,
statement that some of the,
"banks like SBI, ICICI Bank",
"Ltd, Bank of Baroda, Dena",
"Bank, HSBC Bank etc. were",
issued letter of displeasure for,
violating FEMA guidelines for,
opening of accounts where as,
some other banks were even,
6,
fined Rupees one crore for,
such violations. Please give,
me the names of the banks,
with details of violations,
committed by them.,
3. ‘Advisory Note’ issued to ICICI An Advisory Letter had been issued,
"Bank for account opened by to the bank in December, 2007 for",
some fraudsters at its Patna the bank’s Patna branch having,
Branch Information sought failed to (a) comply with the RBI,
"about ""exact nature of guidelines on customer",
"irregularities committed by the identification, opening/operating",
"bank under ""FEMA"". Also give customer accounts, (b) the bank",
list of other illegalities not having followed the normal,
committed by IBL and other banker’s prudence while opening,
details of offences committed an account in question.,
by IBL through various,
branches in India and abroad As regards the list of supervisory,
"along with action taken by the action taken by us, it may be",
Regulator including the names stated that the query is too general,
"and designations of his and not specific. Further, we may",
"officials branch name, type of state that Supervisory actions",
offence committed etc. The taken were based on the scrutiny,
exact nature of offences conducted under Section 35 of the,
committed by Patna Branch of Banking Regulation (BR) Act. The,
the bank and other branches information in the scrutiny report,
of the bank and names of his is held in fiduciary capacity and,
"officials involved, type of the disclosure of which can affect",
offence committed by them the economic interest of the,
and punishment awarded by country and also affect the,
"concerned authority, names commercial confidence of the",
and designation of the bank. And such information is,
"designated authority, who also exempt from disclosure under",
investigated the above case Section 8(1)(a)(d) & (e) of the RTI,
"and his findings and Act (extracts enclosed). We,",
"punishment awarded."" therefore, are unable to accede to",
your request.,
"4. Exact nature of irregularities In this regard, self explicit print",
committed by ICICI Bank in out taken from the website of,
Hong Kong Securities and Futures,
"Commission, Hong Kong is",
enclosed.,
5. ICICI Bank’s Moscow Branch We do not have the information.,
involved in money laundering,
act.,
6. Imposition of fine on ICICI We do not have any information to,
7,
Bank under Section 13 of the furnish in this regard.,
PMLA for loss of documents in,
floods .,
7. Copy of the Warning or As regards your request for,
‘Advisory Note’ issued twice copies/details of advisory letters to,
issued to the bank in the last,
"ICICI Bank, we may state that",
two years and reasonssuch information is exempt from,
recorded therein. disclosure under Section 8(1)(a)(d),
and (e) of the RTI Act. The,
Name and designation of the scrutiny of records of the ICICI,
authority who conducted this Bank is conducted by our,
check and his decision to Department of Banking,
issue an advisory note only Supervision (DBS). The Chief,
instead of penalties to be General Manager-in charge of the,
"imposed under the Act. DBS, Centre Office Reserve Bank",
of India is Shri S. Karuppasamy.,
"5. In this matter, it has been alleged by the petitioner RBI",
that the respondent is aggrieved on account of his application,
form for three-in-one account with the Bank and ICICI,
"Securities Limited (ISEC) lost in the floods in July, 2005 and",
"because of non-submission of required documents, the",
"Trading account with ISEC was suspended, for which",
"respondent approached the District Consumer Forum, which",
rejected the respondent’s allegations of tempering of records,
and dismissed the complaint of the respondent. His appeal,
was also dismissed by the State Commission. Respondent,
then moved an application under the Act of 2005 pertaining to,
8,
the suspension of operation of his said trading account. As,
the consumer complaint as well as the abovementioned,
"application did not yield any result for the respondent, he",
"made an application under the Act before the CPIO, SEBI,",
"appeal to which went up to the CIC, the Division Bench of",
which disposed of his appeal upholding the decision of the,
"CPIO and the Appellate Authority of SEBI. Thereafter, in",
"August 2009, respondent once again made the present",
application under the Act seeking aforesaid information.,
"Being aggrieved by the order of the appellate authority,",
"respondent moved second appeal before the CIC, who by the",
impugned order directed the CPIO of RBI to furnish,
information pertaining to Advisory Notes as requested by the,
"respondent within 15 working days. Hence, RBI approached",
Bombay High Court by way of writ petition.,
"6. In Transfer Case No. 93 of 2015, the Respondent sought",
following information from the CPIO of National Bank for,
"Agriculture and Rural Development under the Act of 2005,",
reply to which is tabulated hereunder:-,
9,
Sl. Information Sought Reply,
No.,
1. Copies of inspection reports of Furnishing of information is,
Apex Co-operative Banks of exempt under Section 8(1)(a) of the,
various States/Mumbai DCCB RTI Act.,
from 2005 till date,
2. Copies of all correspondences Different Departments in NABARD,
with Maharashtra State deal with various issues related to,
Govt./RBI/any other agency of MSCB. The query is general in,
State/Central Co-operative Bank nature. Applicant may please be,
"from January, 2010 till date. specific in query/information",
sought.,
3. Provide confirmed/draft minutes Furnishing of information is,
of meetings of Governing exempt under Sec. 8(1)(d) of the,
Board/Board of RTI Act.,
Directors/Committee of Directors,
"of NABARD from April, 2007 till",
date,
4. Provide information on Compliance available on the,
compliance of Section 4 of RTI website of NABARD i.e.,
"Act, 2005 by NABARD www.nabard.org",
5. Information may be provided on a -,
CD,
7. The First Appellate Authority concurred with the CPIO,
and held that inspection report cannot be supplied in terms of,
Section 8(1)(a) of the RTI Act. The Respondent filed Second,
"Appeal before the Central Information Commission, which was",
allowed. The RBI filed writ petition before the High Court,
challenging the order of the CIC dated 14.11.2011 on identical,
10,
issue and the High Court stayed the operation of the order of,
the CIC.,
"8. In Transfer Case No. 94 of 2015, the Respondent sought",
following information from the CPIO of RBI under the Act of,
"2005, reply to which is tabulated hereunder:",
Sl. Information Sought Reply,
No.,
1. As mentioned at 2(a) what is Pursuant to the then Finance,
RBI doing about uploading the Minister’s Budget Speech made in,
"entire list of Bank defaulters Parliament on 28th February, 1994,",
on the bank’s website? When in order to alert the banks and FIs,
will it be done? Why is it not and put them on guard against the,
done? defaulters to other lending,
institutions. RBI has put in place,
scheme to collect details about,
borrowers of banks and FIs with,
outstanding aggregating Rs. 1 crore,
and above which are classified as,
‘Doubtful’ or ‘Loss or where suits,
"are filed, as on 31st March and 30th",
September each year. In February,
"1999, Reserve Bank of India had",
also introduced a scheme for,
collection and dissemination of,
information on cases of willful,
default of borrowers with,
outstanding balance of Rs. 25 lakh,
"and above. At present, RBI",
disseminates list of above said non,
suit filed ‘doubtful’ and ‘loss’,
borrowed accounts of Rs.1 crore,
and above on half-yearly basis (i.e.,
as on March 31 and September 30),
to banks and FIs. for their,
confidential use. The list of,
non-suit filed accounts of willful,
defaulters of Rs. 25 lakh and above,
is also disseminated on quarterly,
11,
basis to banks and FIs for their,
confidential use. Section 45 E of,
the Reserve Bank of India Act 1934,
prohibits the Reserve Bank from,
disclosing ‘credit information’,
except in the manner provided,
therein.,
"(iii) However, Banks and FIs",
"were advised on October 1, 2002 to",
furnish information in respect of,
suit-filed accounts between Rs. 1,
lakh and Rs. 1 crore from the,
"period ended March, 2002 in a",
phased manner to CIBIL only.,
CIBIL is placing the list of,
defaulters (suit filed accounts) of,
Rs. 1 crore and above and list of,
willful defaulters (suit filed,
accounts) of Rs. 25 lakh and above,
"as on March 31, 2003 and onwards",
on its website (www.cibil.com),
9. The Central Information Commission heard the parties,
through video conferencing. The CIC directed the CPIO of the,
petitioner to provide information as per the records to the,
Respondent in relation to query Nos. 2(b) and 2(c) before,
10.12.2011. The Commission has also directed the Governor,
RBI to display this information on its website before,
"31.12.2011, in fulfillment of its obligations under Section 4(1)",
"(b) (xvii) of the Right to Information Act, 2005 and to update it",
each year.,
12,
"10. In Transfer Case No.95 of 2015, following information",
was sought and reply to it is tabulated hereunder:,
Sl. Information Sought Reply,
No.,
1. Complete and detailed information As the violations of which,
including related the banks were issued,
documents/correspondence/file Show Cause Notices and,
noting etc of RBI on imposing fines on subsequently imposed,
some banks for violating rules like also penalties and based on the,
referred in enclosed news clipping findings of the Annual,
Financial Inspection (AFI) of,
"2. Complete list of banks which were the banks, and the",
issued show cause notices before fine information is received by,
"was imposed as also referred in us in a fiduciary capacity,",
enclosed news clipping mentioning the disclosure of such,
also default for which show cause information would,
notice was issued to each of such prejudicially affect the,
banks economic interests of the,
State and harm the bank’s,
competitive position. The,
SCNs/findings/reports/,
associated,
correspondences/orders are,
therefore exempt from,
disclosure in terms of the,
provisions of Section 8(1)(a),
"(d) and (e) of the RTI Act,",
2005.,
2. Complete list of banks which were -do-,
issued show cause notices before fine,
was imposed as also referred in,
enclosed news clippings mentioning,
also default for which show cause,
notice was issued to each of such,
banks.,
3. List of banks out of those in query (2) Do,
above where fine was not imposed,
giving details like if their reply was,
satisfactory etc.,
4. List of banks which were ultimately The names of the 19 banks,
found guilty and fines mentioning also and details of penalty,
amount of fine on each of the bank imposed on them are,
13,
and criterion to decide fine on each of furnished in Annex 1.,
the bank Regarding the criterion for,
"deciding the fine, the",
penalties have been,
imposed on these banks for,
contravention of various,
directions and instructions,
such as failure to carry out,
proper due diligence on,
user appropriateness and,
"suitability of products,",
selling derivative products,
to users not having proper,
"risk Management policies,",
not verifying the,
underlying /adequacy of,
underlying and eligible,
limits under past,
"performance route, issued",
by RBI in respect of,
derivative transactions.,
5. Is fine imposed /action taken on some No other bank was,
other banks also other than as penalized other than those,
"mentioned in enclosed news clipping mentioned in the Annex, in",
the context of press release,
No.2010-2011/1555 of,
"April 26, 2011",
"6. If yes please provide details Not Applicable, in view of",
the information provided in,
query No.5,
7. Any other information The query is not specific.,
8. File notings on movement of this RTI Copy of the note is,
petition and on every aspect of this enclosed.,
RTI Petition,
"11. In the Second Appeal, the CIC heard the respondent via",
telephone and the petitioner through video conferencing. As,
14,
"directed by CIC, the petitioner filed written submission. The",
CIC directed the CPIO of the Petitioner to provide complete,
information in relation to queries 1 2 and 3 of the original,
application of the Respondent before 15.12.2011.,
"12. In Transfer Case No. 96 of 2015, the Respondent sought",
following information from the CPIO of RBI under the Act of,
"2005, reply to which is tabulated hereunder:-",
Sl. Information Sought Reply,
No.,
1. Before the Orissa High Court RBI The Information sought by you is,
has filed an affidavit stating that exempted under Section 8(1)(a) & (e),
"the total mark to market losses of RTI Act, which state as under;",
on account of currency,
derivatives is to the tune of more 8(1) notwithstanding anything,
"than Rs. 32,000 crores Please contained in this Act, there shall be",
give bank wise breakup of the no obligation to give any citizen,
MTM Losses,
(a) information disclosure of,
which would prejudicially affect,
the sovereignty and integrity of,
India the security strategic,
scientific or economic interests of,
"the state, relation with foreign",
State or lead to incitement of an,
offence.,
(e) Information available to a,
person in his fiduciary,
relationship unless the competent,
authority is satisfied that larger,
public interest warrants the,
disclosure of such information.,
2. What is the latest figure available Please refer to our response to 1,
with RBI of the amount of losses above.,
suffered by Indian Business,
15,
houses? Please furnish the latest,
figures bank wise and customer,
wise.,
3. Whether the issue of derivative We have no information in this,
losses to Indian exporters was matter.,
discussed in any of the meetings,
of Governor/Deputy Governor or,
senior official of the Reserve,
Bank of India? If so please,
furnish the minutes of the,
meeting where the said issue was,
discussed,
4. Any other Action Taken Reports We have no information in this,
by RBI in this regard. matter.,
13. The CIC allowed the second appeal and directed the CPIO,
FED of the Petitioner to provide complete information in,
"queries 1, 2, 9 and 10 of the original application of the",
"Respondent before 05.01.2012. The CPIO, FED complied with",
"the order of the CIC in so far queries 2, 9 and 10 are",
concerned. The RBI filed writ petition for quashing the order of,
CIC so far as it directs to provide complete information as per,
record on query No.1.,
"14. In Transfer Case No. 97 of 2015, the Respondent sought",
following information from the CPIO of National Bank for,
16,
"Agriculture and Rural Development under the Act of 2005,",
reply to which is tabulated hereunder:-,
Sl. Information Sought Reply,
No.,
1. The report made by NABARD regarding 86 Please refer to your,
N.P.A. Accounts for Rs. 3806.95 crore of application dated 19,
"Maharashtra State Co-operative Bank Ltd. (if April, 2011 seeking",
any information of my application is not information under the,
"available in your Office/Department/ RTI Act, 2005 which",
"Division/Branch, transfer this application to was received by us on",
"the concerned Office/Department/ 06th May, 2011. In",
"Division/Branch and convey me accordingly this connection, we",
as per the provision of Section 6 (3) of Right advise that the,
"to Information Act, 2005. questions put forth by",
you relate to the,
observations made in,
the Inspection Report,
of NABARD pertaining,
to MSCB which are,
confidential in nature.,
Since furnishing the,
information would,
impede the process of,
investigation or,
apprehension or,
prosecution of,
"offenders, disclosure",
of the same is,
exempted under,
Section 8(1)(h) of the,
Act.,
"15. In Transfer Case No. 98 of 2015, the Respondent sought",
following information from the CPIO of RBI under the Act of,
"2005, reply to which is tabulated hereunder:-",
17,
Sl. Information Sought Reply,
No.,
1. What contraventions and violations were The bank was penalized,
made by SCB in respect of RBI instructions along with 18 other,
on derivatives for which RBI has imposed banks for contravention,
penalty of INR 10 lakhs on SCB in exercise of various instructions,
of its powers vested under Section 47(1)(b) issued by the Reserve,
"of Banking Regulation Act, 1949 and as Bank of India in respect",
"stated in the RBI press release dated April of derivatives, such as,",
"26, 2011 issued by Department of failure to carry out due",
Communications RBI diligence in regard to,
"suitability of products,",
selling derivative,
products to users not,
having risk,
management policies,
and not verifying the,
underlying/adequacy of,
underlying and eligible,
limits under past,
performance route. The,
information is also,
available on our,
website under press,
releases.,
2. Please provide us the copies/details of all Complaints are received,
"the complaints filed with RBI against SCB, by Reserve Bank of",
accusing SCB of mis-selling derivative India and as they,
"products, failure to carry out due diligence constitute the third",
"in regard to suitability of products, not party information, the",
verifying the underlying/adequacy of information requested,
underlying and eligible limits under past by you cannot be,
performance and various other disclosed in terms of,
non-compliance of RBI instruction on Section 8(1)(d) of the,
"derivatives. RTI Act, 2005.",
"Also, please provide the above information",
in the following format,
. Date of the complaint,
Name of the complaint,
Subject matter of the complaint,
Brief description of the facts and,
accusations made by the complaint.,
18,
Any other information available with RBI,
with respect to violation/contraventions by,
SCB of RBI instructions on derivatives.,
3. Please provide us the copies of all the The action has been,
written replies/correspondences made by taken against the bank,
SCB with RBI and the recordings of all the based on the findings of,
oral submissions made by SCB to defend the Annual Financial,
and explain the violations/contraventions Inspection (AFI) of the,
made by SCB bank which is,
conducted under the,
provisions of Sec.35 of,
"the BR Act, 1949. The",
findings of the,
inspection are,
confidential in nature,
intended specifically for,
the supervised entities,
and for corrective,
action by them. The,
information is received,
by us in fiduciary,
capacity disclosure of,
which may prejudicially,
affect the economic,
interest of the state.,
As such the,
information cannot be,
disclosed in terms of,
Section 8(1) (a) and (e),
"of the RTI Act, 2005",
4. Please provide us the details/copies of the -do-,
"findings recordings, enquiry reports,",
directive orders file notings and/or any,
information on the investigations conducted,
by RBI against SCB in respect of,
non-compliance by SCB thereby,
establishing violations by SCBV in respect,
of non compliances of RBI instructions on,
derivatives.,
Please also provide the above information,
in the following format.,
. Brief violations/contraventions made by,
SCB,
. In brief SCB replies/defense/explanation,
19,
against each violations/contraventions,
made by it under the show cause notice.,
. RBI investigations/notes/on the SCB,
Replies/defense/explanations for each of,
the violation/contravention made by SCB.,
. RBI remarks/findings with regard to the,
violations/contraventions made by SCB.,
"16. In Transfer Case No. 99 of 2015, the Respondent sought",
following information from the CPIO of RBI under the Act of,
"2005, reply to which is tabulated hereunder:-",
Sl. Information Sought Reply,
No.,
"1. That, what action has the department 1. Enquiry was",
taken against scams/financial carried out against,
irregularities of United Mercantile scams/financial,
Cooperative Bank Ltd as mentioned in the irregularities of United,
enclosed published news. Provide day to Mercantile Cooperative,
day progress report of the action taken. Bank Ltd. as mentioned,
in the enclosed,
published news.,
2. Note/explanation,
has been called for from,
the bank vide our letter,
"dated 8th July, 2011",
regarding errors,
mentioned in enquiry,
report.,
3. The other,
information asked here,
is based on the,
conclusions of,
Inspection Report. We,
would like to state that,
conclusions found,
20,
during inspections are,
confidential and the,
reports are finalized on,
the basis of information,
received from banks. We,
received the information,
from banks in a,
confident capacity.,
"Moreover, disclosure of",
such information may,
cause damage to the,
banking system and,
financial interests of the,
state. Disclosure of,
such type of information,
is exempted under,
Section 8(1)(a) and (e) of,
"RTI Act, 2005.",
2. That permission for opening how many United Mercantile,
extension counters was obtained by United Cooperative Bank Ltd.,
"Mercantile Cooperative Bank Ltd from RBI. was permitted to open 5,",
Provide details of expenditure incurred for extension counters.,
constructing the extension counters. Had,
the bank followed tender system for these The information,
"constructions, if yes, provide details of regarding expenditure",
concerned tenders. incurred on,
construction of these,
extension counters and,
tenders are not available,
with Reserve Bank of,
India.,
"17. In Transfer Case No. 100 of 2015, the Respondent sought",
following information from the CPIO of RBI under the Act of,
"2005, reply to which is tabulated hereunder:-",
21,
Sl. Information Sought Reply,
No.,
1. Under which Grade The George Town The classification of,
"Co-operative Bank Ltd., Chennai, has been banks into various",
categorised as on 31.12.2006? grades are done on the,
basis of inspection,
findings which is based,
on information/,
documents obtained in,
a fiduciary capacity and,
cannot be disclosed to,
outsiders. It is also,
exempted under Section,
8(1)(e) of right to,
"Information Act, 2005.",
"18. The Appellate Authority observed that the CPIO, UBD has",
replied that the classification of banks into various grades is,
done on the basis of findings recorded in inspection which are,
based on information/documents obtained in a fiduciary,
"capacity and cannot be disclosed to outsiders. The CPIO, UBD",
has stated that the same is exempted under Section 8(1)(e) of,
RTI Act. Apart from the fact that information sought by the,
"appellant is sensitive and cannot be disclosed, it could also",
harm the competitive position of the co-operative bank.,
"Therefore, exemption from disclosure of the Information is",
available under Section 8(1)(d) of the RTI Act.,
22,
"19. In Transfer Case No. 101 of 2015, with regard to",
"Deendayal Nagri Shakari Bank Ltd, District Beed, the",
Respondent sought following information from the CPIO of RBI,
"under the Act of 2005, reply to which is tabulated hereunder:-",
Sl. Information Sought Reply,
No.,
1. Copies of complaints received by RBI Disclosure of,
"against illegal working of the said bank, information regarding",
including violations of the Standing complaints received,
Orders of RBI as well as the provisions from third parties,
"under Section 295 of the Companies Act, would harm the",
1956. competitive position of a,
third party. Further,
such information is,
maintained in a,
fiduciary capacity and,
is exempted from,
disclosure under,
Sections 8(1)(d) and (e),
of the RTI Act.,
2. Action initiated by RBI against the said (a) A penalty of Rs. 1,
"bank, including all correspondence lakh was imposed on",
between RBI and the said bank officials. Deendayal Nagri,
Sahakari Bank Ltd. for,
violation of directives on,
loans to directors/their,
relatives/concerns in,
which they are,
interested. The bank,
paid the penalty on,
08.10.2010.,
(b) As regards,
correspondence,
"between RBI and the,",
"co-operative bank, it is",
advised that such,
information is,
maintained by RBI in,
fiduciary capacity and,
23,
hence cannot be given,
to outsiders. Moreover,
disclosure of such,
information may harm,
the interest of the bank,
and banking system.,
Such information is,
exempt from disclosure,
under Section 8(1)(a),
and (e) of the RTI Act.,
"3. Finding of the enquiry made by RBI, Such information is",
actions proposed and taken against the maintained by the bank,
"bank and its officials-official notings, in a fiduciary capacity",
"decisions, and final orders passed and and is obtained by RBI",
issued. during the course of,
inspection of the bank,
and hence cannot be,
given to outsiders. The,
disclosure of such,
information would,
harm the competitive,
position of a third,
party. Such,
"information is,",
"therefore, exempted",
from disclosure under,
Section 8(1)(d) and (e),
of the RTI Act.,
As regards action taken,
"against the bank, are",
reply at S. No.2 (a),
above.,
4. Confidential letters received by RBI from See reply at S. NO.2 (a),
the Executive Director of Vaishnavi above.,
Hatcheries Pvt. Ltd. complaining about,
the illegal working and pressure policies of,
the bank and its chairman for misusing,
the authority of digital signature for,
sanction of the backdated resignations of,
the chairman of the bank and few other,
directors of the companies details of,
action taken by RBI on that.,
24,
20. The First Appellate Authority observed that the CPIO had,
furnished the information available on queries 2 and 4.,
Further information sought in queries 1 and 3 was exempted,
under Section 8(1)(a)(d) and (e) of the RTI Act.,
"21. Various transfer petitions were, therefore, filed seeking",
transfer of the writ petitions pending before different High,
"Courts. On 30.5.2015, while allowing the transfer petitions",
filed by Reserve Bank of India seeking transfer of various writ,
"petitions filed by it in the High Courts of Delhi and Bombay,",
this Court passed the following orders:,
"""Notice is served upon the substantial number of",
respondents. Learned counsel for the respondents,
"have no objection if Writ Petition Nos. 8400 of 2011,",
"8605 of 2011, 8693 of 2011, 8583 of 2011, 32 of 2012,",
"685 of 2012, 263 of 2012 and 1976 of 2012 pending in",
the High Court of Delhi at New Delhi and Writ Petition,
"(L) Nos. 2556 of 2011, 2798 of 2011 and 4897 of 2011",
pending in the High Court of Bombay are transferred,
"to this Court and be heard together. In the meanwhile,",
the steps may be taken to serve upon the unserved,
respondents.,
"Accordingly, the transfer petitions are allowed and the",
above mentioned writ petitions are withdrawn to this,
Court. The High Court of Delhi and the High Court of,
Bombay are directed to remit the entire record of the,
"said writ petitions to this Court within four weeks.""",
25,
"22. Mr. T.R. Andhyarujina, learned senior counsel appearing",
"for the petitioner-Reserve Bank of India, assailed the",
impugned orders passed by the Central Information,
Commissioner as illegal and without jurisdiction. Learned,
Counsel referred various provisions of The Reserve Bank of,
"India Act, 1934; The Banking Regulation Act, 1949 and The",
"Credit Information Companies (Regulation) Act, 2005 and",
made the following submissions:-,
I) The Reserve Bank of India being the statutory,
authority has been constituted under the Reserve Bank of,
"India Act, 1934 for the purpose of regulating and",
controlling the money supply in the country. It also acts as,
statutory banker with the Government of India and State,
"Governments and manages their public debts. In addition,",
it regulates and supervises Commercial Banks and,
Cooperative Banks in the country. The RBI exercises,
"control over the volume of credit, the rate of interest",
chargeable on loan and advances and deposits in order to,
ensure the economic stability. The RBI is also vested with,
"the powers to determine ""Banking Policy"" in the interest of",
"banking system, monetary stability and sound economic",
growth.,
The RBI in exercise of powers of powers conferred under,
"Section 35 of the Banking Regulation Act, 1949 conducts",
inspection of the banks in the country.,
II) The RBI in its capacity as the regulator and,
supervisor of the banking system of the country access to,
various information collected and kept by the banks. The,
inspecting team and the officers carry out inspections of,
different banks and much of the information accessed by,
the inspecting officers of RBI would be confidential.,
"Referring Section 28 of the Banking Regulation Act, it was",
submitted that the RBI in the public interest may publish,
26,
"the information obtained by it, in a consolidated form but",
not otherwise.,
III) The role of RBI is to safeguard the economic and,
financial stability of the country and it has large contingent,
of expert advisors relating to matters deciding the economy,
of the entire country and nobody can doubt the bona fide of,
"the bank. In this connection, learned counsel referred the",
decision of this Court in the case of Peerless General,
Finance and Investment Co. Limited and Another Vs.,
"Reserve Bank of India, 1992 Vol. 2 SCC 343.",
IV) Referring the decision in the case of B.,
Suryanarayana Vs. N. 1453 The Kolluru Parvathi,
"Co-Op. Bank Ltd., 1986 AIR (AP) 244, learned counsel",
submitted that the Court will be highly chary to enter into,
and interfere with the decision of Reserve Bank of India.,
Learned Counsel also referred to the decision in the case of,
Peerless General Finance and Investment Co. Limited,
"and Another Vs. Reserve Bank of India, 1992 Vol. 2 SCC",
343 and contended that Courts are not to interfere with the,
economic policy which is a function of the experts.,
V) That the RBI is vested with the responsibility of,
regulation and supervision of the banking system. As part,
"of its supervisory role, RBI supervises and monitors the",
banks under its jurisdiction through on-site inspection,
conducted on annual basis under the statutory powers,
derived by it under section 35 of the Banking Regulation,
"Act 1949, off-site returns on key financial parameters and",
engaging banks in dialogue through periodical meetings.,
RBI may take supervisory actions where warranted for,
violations of its guidelines/directives. The supervisory,
"actions would depend on the seriousness of the offence,",
systemic implications and may range from imposition of,
"penalty, to issue of strictures or letters of warning. While",
RBI recognizes and promotes enhanced transparency in,
"banks disclosures to the public, as transparency",
"strengthens market discipline, a bank may not be able to",
disclose all data that may be relevant to assess its risk,
"profile, due to the inherent need to preserve confidentially",
"in relation to its customers. In this light, while mandatory",
disclosures include certain prudential parameters such as,
"capital adequacy, level of Non Performing Assets etc., the",
supervisors themselves may not disclose all or some,
"information obtained on-site or off-site. In some countries,",
"wherever there are supervisory concerns, ""prompt corrective",
"action"" programmes are normally put in place, which may",
or may not be publicly disclosed. Circumspection in,
disclosures by the supervisors arises from the potential,
"market reaction that such disclosure might trigger, which",
27,
"may not be desirable. Thus, in any policy of transparency,",
there is a need to build processes which ensure that the,
benefits of supervisory disclosure are appropriately weighed,
"against the risk to stakeholders, such as depositors.",
"VI) As per the RBI policy, the reports of the annual",
"financial inspection, scrutiny of all banks/ financial",
institutions are confidential document cannot be disclosed.,
"As a matter of fact, the annual financial inspection/",
scrutiny report reflect the supervisor’s critical assessment,
of banks and financial institutions and their functions.,
Disclosure of these scrutiny and information would create,
misunderstanding/ misinterpretation in the minds of the,
"public. That apart, this may prove significantly counter",
productive. Learned counsel submitted that the disclosure,
of information sought for by the applicant would not serve,
the public interest as it will give adverse impact in public,
confidence on the bank. This has serious implication for,
financial stability which rests on public confidence. This,
will also adversely affect the economic interest of the State,
and would not serve the larger public interest.,
23. The specific stand of petitioner Reserve Bank of India is,
that the information sought for is exempted under Section 8(1),
"(a), (d) and (e) of the Right to Information Act, 2005. As the",
"regulator and supervisor of the banking system, the RBI has",
discretion in the disclosure of such information in public,
interest.,
"24. Mr. Andhyarujina, learned senior counsel, referred",
various decisions to the High Court and submitted that the,
disclosure of information would prejudicially affect the,
"economic interest of the State. Further, if the information",
28,
sought for is sensitive from the point of adverse market,
reaction leading to systematic crisis for financial stability.,
25. Learned senior counsel put heavy reliance on the Full,
Bench decision of the Central Information Commissioner and,
"submitted that while passing the impugned order, the Central",
Information Commissioner completely overlooked the Full,
Bench decision and ignored the same. According to the,
"learned counsel, the Bench, which passed the impugned",
"order, is bound to follow the Full Bench decision. The",
Commission also erred in holding that the Full Bench decision,
is per incuriam as the Full Bench has not considered the,
statutory provisions of Section 8 (2) of the Right to Information,
"Act, 2005.",
26. Learned senior counsel also submitted that the,
Commission erred in holding that even if the information,
"sought for is exempted under Section 8(1) (a), (d) or (e) of the",
"Right to Information Act, Section 8(2) of the RTI Act would",
mandate the disclosure of the information.,
29,
27. Learned senior counsel further submitted that the basic,
"question of law is whether the Right to Information Act, 2005",
overrides various provisions of special statutes which confer,
confidentiality in the information obtained by the RBI.; If the,
"Respondents are right in their contention, these statutory",
"provisions of confidentiality in the Banking Regulation Act,",
"1949, the Reserve Bank of India Act, 1934 and the Credit",
"Information Companies (Regulation) Act, 2005 would be",
"repealed or overruled by the Right to Information Act, 2005.",
"28. Under the Banking Regulation Act, 1949, the Reserve",
Bank of India has a right to obtain information from the banks,
under Section 27. These information can only be in its,
discretion published in such consolidated form as RBI deems,
fit. Likewise under Section 34A production of documents of,
confidential nature cannot be compelled. Under sub-section,
"(5) of Section 35, the Reserve Bank of India may carry out",
inspection of any bank but its report can only be disclosed if,
the Central Government orders the publishing of the report of,
the Reserve Bank of India when it appears necessary.,
30,
"29. Under Section 45E of the Reserve Bank of India Act,",
"1934, disclosure of any information relating to credit",
information submitted by banking company is confidential,
and under Section 45E(3) notwithstanding anything contained,
"in any law no court, tribunal or authority can compel the",
Reserve Bank of India to give information relating to credit,
information etc.,
30. Under Section 17(4) of the Credit Information Companies,
"(Regulation) Act, 2005, credit information received by the",
credit information company cannot be disclosed to any person.,
"Under Section 20, the credit information company has to",
adopt privacy principles and under Section 22 there cannot be,
unauthorized access to credit information.,
31. It was further contended that the Credit Information,
"Companies Act, 2005 was brought into force after the Right to",
"Information act, 2005 w.e.f. 14.12.2006. It is significant to",
"note that Section 28 of Banking Regulation Act, 1949 was",
amended by the Credit Information Companies (Regulation),
"Act, 2005. This is a clear indication that the Right to",
31,
"Information Act, 2005 cannot override credit information",
sought by any person in contradiction to the statutory,
provisions for confidentiality.,
32. This is in addition to other statutory provisions of privacy,
"in Section 44 of State Bank of India Act, 1955, Section 52,",
"State Bank of India (Subsidiary Banks) Act, 1959, Section 13",
of the Banking Companies (Acquisition & Transfer of,
"Undertakings) Act, 1970.",
"33. The Right to Information Act, 2005 is a general provision",
which cannot override specific provisions relating to,
confidentiality in earlier legislation in accordance with the,
principle that where there are general words in a later statute,
it cannot be held that the earlier statutes are repealed altered,
or discarded.,
34. Learned counsel submitted that Section 22 of the Right,
"to Information Act, 2005 cannot have the effect of nullifying",
and repealing earlier statutes in relation to confidentiality.,
This has been well settled by this Court in,
32,
a) Raghunath vs. state of Karnataka 1992(1) SCC,
335 at p.348 pages 112 and 114,
"b) ICICI Bank vs. SIDCO Leather etc., 2006(10)",
"SCC 452 at p. 466, paras 36 & 37",
"c) Central Bank vs. Kerala, 2009 (4) SCC 94 at p.",
132-133 para 104,
"d) AG Varadharajalu vs. Tamil Nadu, 1998 (4)",
SCC 231 at p. 236 para 16.,
"Hence, the Right to Information Act, 2005 cannot override the",
provisions for confidentiality conferred on the RBI by the,
earlier statutes referred to above.,
"35. The Preamble of the RTI Act, 2005 itself recognizes the",
fact that since the revealing of certain information is likely to,
"conflict with other public interests like ""the preservation of",
"confidentiality of sensitive information"", there is a need to",
harmonise these conflicting interests. It is submitted that,
certain exemptions were carved out in the RTI Act to,
harmonise these conflicting interests. This Court in Central,
Board of Secondary Education and Anr. vs. Aditya,
"Bandopadhyay and Ors, (2011)8 SCC 497, has observed as",
under:-,
33,
"""When trying to ensure that the right to information",
does not conflict with several other public interests (which,
"includes efficient operations of the Governments,",
"preservation of confidentiality of sensitive information,",
"optimum use of limited fiscal resources, etc.), it is difficult",
to visualise and enumerate all types of information which,
require to be exempted from disclosure in public interest.,
The legislature has however made an attempt to do so. The,
enumeration of exemptions is more exhaustive than the,
"enumeration of exemptions attempted in the earlier Act,",
"that is, Section 8 of the Freedom to Information Act, 2002.",
The courts and Information Commissions enforcing the,
provisions of the RTI Act have to adopt a purposive,
"construction, involving a reasonable and balanced",
"approach which harmonises the two objects of the Act,",
while interpreting Section 8 and the other provisions of the,
"Act.""",
36. Apart from the legal position that the Right to,
"Information Act, 2005 does not override statutory provisions",
"of confidentiality in other Act, it is submitted that in any case",
"Section 8(1)(a) of the Right to Information Act, 2005 states",
that there is no obligation to give any information which,
pre-judiciously affects the economic interests of the States.,
Disclosure of such vital information relating to banking would,
pre-judiciously affect the economic interests of the State. This,
was clearly stated by the Full Bench of the Central Information,
Commission by its Order in the case of Ravin Ranchchodlal,
Patel (supra). Despite this emphatic ruling individual,
Commissioners of the Information have disregarded it by,
34,
holding that the decision of the Full Bench was per incurium,
and directed disclosure of information.,
"37. Other exceptions in Section 8, viz 8(1)(a)(d), 8(1)(e) would",
"also apply to disclosure by the RBI and banks. In sum,",
learned senior counsel submitted that the RBI cannot be,
directed to disclose information relating to banking under the,
"Right to Information Act, 2005.",
"38. Mr. Prashant Bhushan, learned counsel appearing for",
"the respondents in Transfer Case Nos.94 & 95 of 2015, began",
his arguments by referring the Preamble of the Constitution,
and submitted that through the Constitution it is the people,
"who have created legislatures, executives and the judiciary to",
exercise such duties and functions as laid down in the,
constitution itself.,
39. The right to information regarding the functioning of,
public institutions is a fundamental right as enshrined in,
Article 19 of the Constitution of India. This Hon’ble Court has,
declared in a plethora of cases that the most important value,
35,
for the functioning of a healthy and well informed democracy,
is transparency. Mr. Bhushan referred Constitution Bench,
judgment of this Court in the case of State of U.P. vs. Raj,
"Narain, AIR 1975 SC 865, and submitted that it is a",
"Government’s responsibility like ours, where all the agents of",
"the public must be responsible for their conduct, there can be",
but few secrets. The people of this country have a right to,
"know every public act, everything that is done in a public way,",
"by their functionaries. The right to know, which is derived",
"from the concept of freedom of speech, though not absolute, is",
"a factor which should make one wary, when secrecy is claimed",
"for transactions which can, at any rate, have no repercussion",
"on public security. To cover with veil of secrecy, the common",
routine business is not in the interest of public.,
40. In the case of S.P. Gupta v. President of India and,
"Ors., AIR 1982 SC 149, a seven Judge Bench of this Court",
made the following observations regarding the right to,
information:-,
"""There is also in every democracy a certain amount of",
"public suspicion and distrust of Government, varying of",
"course from time to time according to its performance,",
36,
which prompts people to insist upon maximum exposure of,
its functioning. It is axiomatic that every action of the,
Government must be actuated by public interest but even,
"so we find cases, though not many, where Governmental",
action is taken not for public good but for personal gain or,
other extraneous considerations. Sometimes Governmental,
action is influenced by political and other motivations and,
"pressures and at times, there are also instances of misuse",
"or abuse of authority on the part of the executive. Now, if",
secrecy were to be observed in the functioning of,
Government and the processes of Government were to be,
"kept hidden from public scrutiny, it would tend to promote",
"and encourage oppression, corruption and misuse or abuse",
"of authority, for it would all be shrouded in the veil of",
secrecy without any public accountability. But if there is an,
open Government with means of information available to,
"the public, there would be greater exposure of the",
functioning of Government and it would help to assure the,
people a better and more efficient administration. There can,
be little doubt that exposure to public gaze and scrutiny is,
one of the surest means of achieving a clean and healthy,
administration. It has been truly said that an open,
Government is clean Government and a powerful safeguard,
against political and administrative aberration and,
"inefficiency.""",
41. In the case of the Union of India vs. Association for,
"Democratic Reforms, AIR 2002 SC 2112, while declaring that",
it is part of the fundamental right of citizens under Article,
19(1)(a) to know the assets and liabilities of candidates,
"contesting election to the Parliament or the State Legislatures,",
a three Judge Bench of this Court held unequivocally that:-,
"""The right to get information in a democracy is recognized all",
throughout and is a natural right flowing from the concept of,
"democracy (Para 56)."" Thereafter, legislation was passed",
37,
"amending the Representation of People Act, 1951 that",
candidates need not provide such information. This Court in,
"the case of PUCL vs. Union of India, (2003) 4 SCC 399,",
"struck down that legislation by stating: ""It should be properly",
understood that the fundamental rights enshrined in the,
"Constitution such as, right to equality and freedoms have no",
"fixed contents. From time to time, this Court has filled in the",
skeleton with soul and blood and made it vibrant. Since the,
"last more than 50 years, this Court has interpreted Articles",
"14, 19 and 21 and given meaning and colour so that the",
"nation can have a truly republic democratic society.""",
"42. The RTI Act, 2005, as noted in its very preamble, does",
not create any new right but only provides machinery to,
effectuate the fundamental right to information. The,
institution of the CIC and the SICs are part of that machinery.,
"The preamble also inter-alia states ""... democracy requires an",
informed citizenry and transparency of information which are,
vital to its functioning and also to contain corruption and to,
38,
hold Governments and their instrumentalities accountable to,
"the governed.""",
43. The submission of the RBI that exceptions be carved out,
of the RTI Act regime in order to accommodate provisions of,
RBI Act and Banking Regulation Act is clearly misconceived.,
"RTI Act, 2005 contains a clear provision (Section 22) by virtue",
of which it overrides all other Acts including Official Secrets,
"Act. Thus, notwithstanding anything to the contrary",
contained in any other law like RBI Act or Banking Regulation,
"Act, the RTI Act, 2005 shall prevail insofar as transparency",
"and access to information is concerned. Moreover, the RTI Act",
"2005, being a later law, specifically brought in to usher",
transparency and to transform the way official business is,
"conducted, would have to override all earlier practices and",
laws in order to achieve its objective. The only exceptions to,
access to information are contained in RTI Act itself in,
Section 8.,
39,
"44. In T.C.No.94 of 2015, the RTI applicant Mr. P.P. Kapoor",
had asked about the details of the loans taken by the,
"industrialists that have not been repaid, and he had asked",
about the names of the top defaulters who have not repaid,
their loans to public sector banks. The RBI resisted the,
disclosure of the information claiming exemption under,
Section 8(1) (a) and 8(1)(e) of the RTI Act on the ground that,
"disclosure would affect the economic interest of the country,",
and that the information has been received by the RBI from,
the banks in fiduciary capacity. The CIC found these,
arguments made by RBI to be totally misconceived in facts and,
"in law, and held that the disclosure would be in public",
interest.,
"45. In T.C.No.95 of 2015, the RTI applicant therein Mr.",
Subhash Chandra Agrawal had asked about the details of the,
show cause notices and fines imposed by the RBI on various,
banks. The RBI resisted the disclosure of the information,
"claiming exemption under Section 8(1)(a),(d) and 8(1) (e) of the",
RTI Act on the ground that disclosure would affect the,
40,
"economic interest of the country, the competitive position of",
the banks and that the information has been received by RBI,
"in fiduciary capacity. The CIC, herein also, found these",
arguments made by RBI to be totally misconceived in facts and,
in law and held that the disclosure would be in public interest.,
46. In reply to the submission of the petitioner about,
"fiduciary relationship, learned counsel submitted that the",
scope of Section 8(1)(e) of the RTI Act has been decided by this,
Court in Central Board of Secondary Education vs. Aditya,
"Bandopadhyay, (2011) 8 SCC 497, wherein, while rejecting",
the argument that CBSE acts in a fiduciary capacity to the,
"students, it was held that:",
"""...In a philosophical and very wide sense, examining bodies",
"can be said to act in a fiduciary capacity, with reference to",
"students who participate in an examination, as a",
Government does while governing its citizens or as the,
present generation does with reference to the future,
generation while preserving the environment. But the word,
‘information available to a person in his fiduciary,
relationship’ are used in Section 8(1) (e) of the RTI Act in its,
"normal and well recognized sense, that is to refer to persons",
"who act in a fiduciary capacity, with reference to specific",
beneficiary or beneficiaries who are to be expected to be,
"protected or benefited by the action of the fiduciary.""",
41,
47. We have extensively heard all the counsels appearing for,
the petitioner Banks and respondents and examined the law,
and the facts.,
"48. While introducing the Right to Information Bill, 2004 a",
serious debate and discussion took place. The then Prime,
Minister while addressing the House informed that the RTI Bill,
is to provide for setting out practical regime of right to,
"information for people, to secure access to information under",
the control of public authorities in order to promote,
transparency and accountability in the working of every public,
authority. The new legislation would radically alter the ethos,
and culture of secrecy through ready sharing of information by,
the State and its agencies with the people. An era of,
transparency and accountability in governance is on the anvil.,
"Information, and more appropriately access to information",
would empower and enable people not only to make informed,
choices but also participate effectively in decision making,
processes. Tracing the origin of the idea of the then Prime,
"Minister who had stated, ""Modern societies are information",
42,
societies. Citizens tend to get interested in all fields of life and,
"demand information that is as comprehensive, accurate and",
"fair as possible."" In the Bill, reference has also been made to",
the decision of the Supreme Court to the effect that Right to,
Information has been held as inherent in Article 19 of our,
"Constitution, thereby, elevating it to a fundamental right of the",
"citizen. The Bill, which sought to create an effective",
"mechanism for easy exercise of this Right, was held to have",
"been properly titled as ""Right to Information Act"". The Bill",
further states that a citizen has to merely make a request to,
the concerned Public Information Officer specifying the,
particulars of the information sought by him. He is not,
"required to give any reason for seeking information, or any",
other personal details except those necessary for contacting,
"him. Further, the Bill states:-",
"""The categories of information exempted from",
disclosure are a bare minimum and are contained in,
clause 8 of the Bill. Even these exemptions are not,
absolute and access can be allowed to them in public,
interest if disclosure of the information outweighs,
the harm to the public authorities. Such disclosure,
has been permitted even if it is in conflict with the,
"provisions of the Official Secrets Act, 1923.",
"Moreover, barring two categories that relate to",
information disclosure - which may affect,
43,
"sovereignty and integrity of India etc., or information",
relating to Cabinet papers etc.-all other categories of,
exempted information would be disclosed after,
twenty years.,
There is another aspect about which information is,
to be made public. We had a lengthy discussion and,
it is correctly provided in the amendment under,
clause 8 of the Bill. The following information shall,
be exempted from disclosure which would,
prejudicially affect the sovereignty and integrity of,
India; which has been expressly forbidden; which,
may result in a breach of privileges of Parliament or,
the Legislature; and also information pertaining to,
defence matters. They are listed in clause 8 (a) to (g).,
There are exceptions to this clause. Where it is,
considered necessary that the information will be,
"divulged in the interest of the State, that will be",
done. There must be transparency in public life.,
There must be transparency in administration and,
people must have a right to know what has actually,
transpired in the secretariat of the State as well as,
the Union Ministry. A citizen will have a right,
because it will be safe to prevent corruption. Many,
things are done behind the curtain. Many shoddy,
deals take place in the secretariats of the Central,
and State Governments and the information will,
always be kept hidden. Such practice should not be,
allowed in a democratic country like ours. Ours is a,
republic. The citizenry should have a right to know,
what transpired in the secretariat. Even Cabinet,
"papers, after a decision has been taken, must be",
divulged as per the provisions of this amendment. It,
"cannot be hidden from the knowledge of others.""",
"49. Addressing the House, it was pointed out by the then",
"Prime Minister that in our country, Government expenditure",
both at the Central and at the level of the States and local,
"bodies, account for nearly 33% of our Gross National Product.",
"At the same time, the socio-economic imperatives require our",
44,
Government to intervene extensively in economic and social,
"affairs. Therefore, the efficiency and effectiveness of the",
"government processes are critical variables, which will",
determine how our Government functions and to what extent,
it is able to discharge the responsibilities entrusted. It was,
pointed out that there are widespread complaints in our,
"country about wastefulness of expenditure, about corruption,",
and matter which have relations with the functioning of the,
"Government. Therefore, it was very important to explore new",
effective mechanism to ensure that the Government will,
purposefully and effectively discharge the responsibilities,
entrusted to it.,
50. Finally the Right to Information Act was passed by the,
"Parliament called ""The Right to Information Act, 2005"". The",
Preamble states:-,
"""An Act to provide for setting out the practical",
regime of right to information for citizens to secure,
access to information under the control of public,
"authorities, in order to promote transparency and",
accountability in the working of every public,
"authority, the constitution of a Central Information",
Commission and State Information Commissions and,
for matters connected therewith or incidental,
thereto.,
45,
WHEREAS the Constitution of India has,
established democratic Republic;,
AND WHEREAS democracy requires an,
informed citizenry and transparency of information,
which are vital to its functioning and also to contain,
corruption and to hold Governments and their,
instrumentalities accountable to the governed;,
AND WHEREAS revelation of information in,
actual practice is likely to conflict with other public,
interests including efficient operations of the,
"Governments, optimum use of limited fiscal",
resources and the preservation of confidentiality of,
sensitive information;,
AND WHEREAS it is necessary to harmonise,
these conflicting interest while preserving the,
paramountcy of the democratic ideal;,
"NOW, THEREFORE, it is expedient to provide",
for furnishing certain information to citizens who,
"desire to have it.""",
51. Section 2 of the Act defines various authorities and the,
words. Section 2(j) defines right to information as under :-,
"""2(j) ""right to information"" means the right to",
information accessible under this Act which is held,
by or under the control of any public authority and,
includes the right to-,
"(i) inspection of work, documents, records;",
"(ii) taking notes, extracts, or certified",
copies of documents or records;,
(iii) taking certified samples of material;,
(iv) obtaining information in the form of,
"diskettes, floppies, tapes, video",
cassettes or in any other electronic,
mode or through printouts where such,
information is stored in a computer or,
"in any other device;""",
46,
52. Section 3 provides that all citizens shall have the right to,
information subject to the provisions of this Act. Section 4,
makes it obligatory on all public authorities to maintain,
records in the manner provided therein. According to Section,
"6, a person who desires to obtain any information under the",
Act shall make a request in writing or through electronic,
means in English or Hindi in the official language of the area,
in which the application is being made to the competent,
authority specifying the particulars of information sought by,
him or her. Sub-section (ii) of Section 6 provides that the,
applicant making request for information shall not be required,
to give any reason for requesting the information or any other,
personal details except those that may be necessary for,
contacting him. Section 7 lays down the procedure for,
disposal of the request so made by the person under Section 6,
"of the Act. Section 8, however, provides certain exemption",
from disclosure of information. For better appreciation,
Section 8 is quoted hereinbelow:-,
47,
"""8. Exemption from disclosure of information.--",
"(1) Notwithstanding anything contained in this Act,",
"there shall be no obligation to give any citizen,--",
"(a) information, disclosure of which would prejudicially",
"affect the sovereignty and integrity of India, the",
"security, strategic, scientific or economic interests of",
"the State, relation with foreign State or lead to",
incitement of an offence;,
(b) information which has been expressly forbidden to,
be published by any court of law or tribunal or the,
disclosure of which may constitute contempt of court;,
"(c) information, the disclosure of which would cause a",
breach of privilege of Parliament or the State,
Legislature;,
"(d) information including commercial confidence, trade",
"secrets or intellectual property, the disclosure of which",
"would harm the competitive position of a third party,",
unless the competent authority is satisfied that larger,
public interest warrants the disclosure of such,
information;,
(e) information available to a person in his fiduciary,
"relationship, unless the competent authority is",
satisfied that the larger public interest warrants the,
disclosure of such information;,
(f) information received in confidence from foreign,
government;,
"(g) information, the disclosure of which would",
endanger the life or physical safety of any person or,
identify the source of information or assistance given,
in confidence for law enforcement or security,
purposes;,
(h) information which would impede the process of,
investigation or apprehension or prosecution of,
offenders;,
(i) cabinet papers including records of deliberations of,
"the Council of Ministers, Secretaries and other officers:",
"Provided that the decisions of Council of Ministers, the",
"reasons thereof, and the material on the basis of which",
the decisions were taken shall be made public after the,
"decision has been taken, and the matter is complete,",
or over: Provided further that those matters which,
come under the exemptions specified in this section,
shall not be disclosed;,
(j) information which relates to personal information,
the disclosure of which has not relationship to any,
48,
"public activity or interest, or which would cause",
unwarranted invasion of the privacy of the individual,
unless the Central Public Information Officer or the,
State Public Information Officer or the appellate,
"authority, as the case may be, is satisfied that the",
larger public interest justifies the disclosure of such,
"information: Provided that the information, which",
cannot be denied to the Parliament or a State,
Legislature shall not be denied to any person.,
(2) Notwithstanding anything in the Official Secrets,
"Act, 1923 (19 of 1923) nor any of the exemptions",
"permissible in accordance with sub-section (1), a",
"public authority may allow access to information, if",
public interest in disclosure outweighs the harm to the,
protected interests.,
"(3) Subject to the provisions of clauses (a), (c) and (i) of",
"sub-section (1), any information relating to any",
"occurrence, event or matter which has taken place,",
occurred or happened twenty years before the date on,
which any request is made under section 6 shall be,
provided to any person making a request under that,
section: Provided that where any question arises as to,
the date from which the said period of twenty years,
"has to be computed, the decision of the Central",
"Government shall be final, subject to the usual",
"appeals provided for in this Act.""",
53. The information sought for by the respondents from the,
petitioner-Bank have been denied mainly on the ground that,
such information is exempted from disclosure under Section,
8(1)(a)(d) and (e) of the RTI Act.,
54. Learned counsel appearing for the petitioner-Bank,
mainly relied upon Section 8(1)(e) of the RTI Act taking the,
49,
stand that the Reserve Bank of India having fiduciary,
relationship with the other banks and that there is no reason,
to disclose such information as no larger public interest,
"warrants such disclosure. The primary question therefore, is,",
whether the Reserve Bank of India has rightly refused to,
disclose information on the ground of its fiduciary relationship,
with the banks.,
"55. The Advanced Law Lexicon, 3rd Edition, 2005, defines",
"fiduciary relationship as ""a relationship in which one person is",
under a duty to act for the benefit of the other on the matters,
within the scope of the fiduciary relationship. Fiduciary,
relationship usually arise in one of the four situations (1),
when one person places trust in the faithful integrity of,
"another, who as a result gains superiority or influence over the",
"first, (2) when one person assumes control and responsibility",
"over another, (3) when one person has a duty to act or give",
advice to another on matters falling within the scope of the,
"relationship, or (4) when there is specific relationship that has",
50,
"traditionally be recognized as involving fiduciary duties, as",
"with a lawyer and a client, or a stockbroker and a customer.""",
56. The scope of the fiduciary relationship consists of the,
following rules:,
"""(i) No Conflict rule- A fiduciary must not place",
himself in a position where his own interests conflicts,
with that of his customer or the beneficiary. There,
"must be ""real sensible possibility of conflict.",
(ii) No profit rule- a fiduciary must not profit from,
"his position at the expense of his customer, the",
beneficiary;,
(iii) Undivided loyalty rule- a fiduciary owes,
"undivided loyalty to the beneficiary, not to place",
himself in a position where his duty towards one,
person conflicts with a duty that he owes to another,
customer. A consequence of this duty is that a,
fiduciary must make available to a customer all the,
information that is relevant to the customer’s affairs,
(iv) Duty of confidentiality- a fiduciary must only,
use information obtained in confidence and must not,
"use it for his own advantage, or for the benefit of",
"another person.""",
57. The term fiduciary relationship has been well discussed,
by this Court in the case of Central Board of Secondary,
Education and Anr. vs. Aditya Bandopadhyay and Ors.,
"(supra). In the said decision, their Lordships referred various",
authorities to ascertain the meaning of the term fiduciary,
relationship and observed thus:-,
51,
"""20.1) Black’s Law Dictionary (7th Edition, Page 640)",
defines ‘fiduciary relationship’ thus:,
"""A relationship in which one person is under a duty to",
act for the benefit of the other on matters within the,
scope of the relationship. Fiduciary relationships -,
"such as trustee-beneficiary, guardian-ward,",
"agent-principal, and attorney-client - require the",
highest duty of care. Fiduciary relationships usually,
arise in one of four situations : (1) when one person,
"places trust in the faithful integrity of another, who as",
"a result gains superiority or influence over the first, (2)",
when one person assumes control and responsibility,
"over another, (3) when one person has a duty to act for",
or give advice to another on matters falling within the,
"scope of the relationship, or (4) when there is a specific",
relationship that has traditionally been recognized as,
"involving fiduciary duties, as with a lawyer and a client",
"or a stockbroker and a customer.""",
20.2) The American Restatements (Trusts and Agency),
define ‘fiduciary’ as one whose intention is to act for,
the benefit of another as to matters relevant to the,
relation between them. The Corpus Juris Secundum,
(Vol. 36A page 381) attempts to define fiduciary thus :,
"""A general definition of the word which is sufficiently",
comprehensive to embrace all cases cannot well be,
"given. The term is derived from the civil, or Roman, law.",
"It connotes the idea of trust or confidence,",
"contemplates good faith, rather than legal obligation, as",
"the basis of the transaction, refers to the integrity, the",
"fidelity, of the party trusted, rather than his credit or",
"ability, and has been held to apply to all persons who",
"occupy a position of peculiar confidence toward others,",
and to include those informal relations which exist,
"whenever one party trusts and relies on another, as",
well as technical fiduciary relations.,
"The word ‘fiduciary,’ as a noun, means one who holds a",
"thing in trust for another, a trustee, a person holding",
"the character of a trustee, or a character analogous to",
"that of a trustee, with respect to the trust and",
confidence involved in it and the scrupulous good faith,
"and candor which it requires; a person having the duty,",
"created by his undertaking, to act primarily for",
52,
another’s benefit in matters connected with such,
"undertaking. Also more specifically, in a statute, a",
"guardian, trustee, executor, administrator, receiver,",
"conservator, or any person acting in any fiduciary",
"capacity for any person, trust, or estate. Some",
"examples of what, in particular connections, the term",
has been held to include and not to include are set out,
"in the note.""",
"20.3) Words and Phrases, Permanent Edition (Vol. 16A,",
Page 41) defines ‘fiducial relation’ thus :,
"""There is a technical distinction between a ‘fiducial",
relation’ which is more correctly applicable to legal,
"relationships between parties, such as guardian and",
"ward, administrator and heirs, and other similar",
"relationships, and ‘confidential relation’ which includes",
"the legal relationships, and also every other",
relationship wherein confidence is rightly reposed and,
is exercised.,
"Generally, the term ‘fiduciary’ applies to any person",
who occupies a position of peculiar confidence towards,
another. It refers to integrity and fidelity. It,
"contemplates fair dealing and good faith, rather than",
"legal obligation, as the basis of the transaction. The",
term includes those informal relations which exist,
"whenever one party trusts and relies upon another, as",
"well as technical fiduciary relations.""",
20.4) In Bristol and West Building Society vs. Mothew,
[1998 Ch. 1] the term fiduciary was defined thus :,
"""A fiduciary is someone who has undertaken to act for",
and on behalf of another in a particular matter in,
circumstances which give rise to a relationship of trust,
and confidence. The distinguishing obligation of a,
fiduciary is the obligation of loyalty..... A fiduciary must,
act in good faith; he must not make a profit out of his,
trust; he must not place himself in a position where his,
duty and his interest may conflict; he may not act for,
his own benefit or the benefit of a third person without,
"the informed consent of his principal.""",
53,
20.5) In Wolf vs. Superior Court [2003 (107) California,
"Appeals, 4th 25] the California Court of Appeals defined",
fiduciary relationship as under :,
"""any relationship existing between the parties to the",
transaction where one of the parties is duty bound to,
act with utmost good faith for the benefit of the other,
party. Such a relationship ordinarily arises where,
confidence is reposed by one person in the integrity of,
"another, and in such a relation the party in whom the",
"confidence is reposed, if he voluntarily accepts or",
"assumes to accept the confidence, can take no",
advantage from his acts relating to the interests of the,
other party without the latter’s knowledge and,
"consent.""",
21. The term ‘fiduciary’ refers to a person having a duty,
"to act for the benefit of another, showing good faith and",
"condour, where such other person reposes trust and",
special confidence in the person owing or discharging,
the duty. The term ‘fiduciary relationship’ is used to,
describe a situation or transaction where one person,
(beneficiary) places complete confidence in another,
"person (fiduciary) in regard to his affairs, business or",
transaction/s. The term also refers to a person who,
holds a thing in trust for another (beneficiary). The,
fiduciary is expected to act in confidence and for the,
"benefit and advantage of the beneficiary, and use good",
faith and fairness in dealing with the beneficiary or the,
things belonging to the beneficiary. If the beneficiary,
"has entrusted anything to the fiduciary, to hold the",
thing in trust or to execute certain acts in regard to or,
"with reference to the entrusted thing, the fiduciary has",
to act in confidence and expected not to disclose the,
thing or information to any third party. There are also,
certain relationships where both the parties have to act,
in a fiduciary capacity treating the other as the,
beneficiary. Examples of these are : a partner vis-‘-vis,
another partner and an employer vis-‘-vis employee.,
An employee who comes into possession of business or,
trade secrets or confidential information relating to the,
"employer in the course of his employment, is expected",
to act as a fiduciary and cannot disclose it to others.,
"Similarly, if on the request of the employer or official",
"superior or the head of a department, an employee",
54,
"furnishes his personal details and information, to be",
"retained in confidence, the employer, the official",
superior or departmental head is expected to hold such,
"personal information in confidence as a fiduciary, to be",
made use of or disclosed only if the employee’s conduct,
"or acts are found to be prejudicial to the employer.""",
"58. In the instant case, the RBI does not place itself in a",
"fiduciary relationship with the Financial institutions (though,",
"in word it puts itself to be in that position) because, the",
"reports of the inspections, statements of the bank, information",
related to the business obtained by the RBI are not under the,
pretext of confidence or trust. In this case neither the RBI nor,
the Banks act in the interest of each other. By attaching an,
"additional ""fiduciary"" label to the statutory duty, the",
Regulatory authorities have intentionally or unintentionally,
created an in terrorem effect.,
59. RBI is a statutory body set up by the RBI Act as India’s,
Central Bank. It is a statutory regulatory authority to oversee,
the functioning of the banks and the country’s banking sector.,
"Under Section 35A of the Banking Regulation Act, RBI has",
been given powers to issue any direction to the banks in,
55,
"public interest, in the interest of banking policy and to secure",
proper management of a banking company. It has several,
other far-reaching statutory powers.,
60. RBI is supposed to uphold public interest and not the,
interest of individual banks. RBI is clearly not in any fiduciary,
relationship with any bank. RBI has no legal duty to,
maximize the benefit of any public sector or private sector,
"bank, and thus there is no relationship of ‘trust’ between",
them. RBI has a statutory duty to uphold the interest of the,
"public at large, the depositors, the country’s economy and the",
"banking sector. Thus, RBI ought to act with transparency and",
not hide information that might embarrass individual banks.,
It is duty bound to comply with the provisions of the RTI Act,
and disclose the information sought by the respondents,
herein.,
61. The baseless and unsubstantiated argument of the RBI,
that the disclosure would hurt the economic interest of the,
"country is totally misconceived. In the impugned order, the",
CIC has given several reasons to state why the disclosure of,
56,
the information sought by the respondents would hugely serve,
"public interest, and non-disclosure would be significantly",
detrimental to public interest and not in the economic interest,
"of India. RBI’s argument that if people, who are sovereign, are",
made aware of the irregularities being committed by the banks,
"then the country’s economic security would be endangered, is",
not only absurd but is equally misconceived and baseless.,
62. The exemption contained in Section 8(1)(e) applies to,
exceptional cases and only with regard to certain pieces of,
"information, for which disclosure is unwarranted or",
undesirable. If information is available with a regulatory,
"agency not in fiduciary relationship, there is no reason to",
"withhold the disclosure of the same. However, where",
information is required by mandate of law to be provided to an,
"authority, it cannot be said that such information is being",
"provided in a fiduciary relationship. As in the instant case,",
the Financial institutions have an obligation to provide all the,
information to the RBI and such an information shared under,
an obligation/ duty cannot be considered to come under the,
57,
purview of being shared in fiduciary relationship. One of the,
"main characteristic of a Fiduciary relationship is ""Trust and",
"Confidence"". Something that RBI and the Banks lack between",
them.,
"63. In the present case, we have to weigh between the public",
interest and fiduciary relationship (which is being shared,
"between the RBI and the Banks). Since, RTI Act is enacted to",
"empower the common people, the test to determine limits of",
Section 8 of RTI Act is whether giving information to the,
general public would be detrimental to the economic interests,
of the country? To what extent the public should be allowed to,
get information?,
"64. In the context of above questions, it had long since come",
to our attention that the Public Information Officers (PIO),
under the guise of one of the exceptions given under Section 8,
"of RTI Act, have evaded the general public from getting their",
hands on the rightful information that they are entitled to.,
58,
65. And in this case the RBI and the Banks have sidestepped,
the General public’s demand to give the requisite information,
"on the pretext of ""Fiduciary relationship"" and ""Economic",
"Interest"". This attitude of the RBI will only attract more",
suspicion and disbelief in them. RBI as a regulatory authority,
should work to make the Banks accountable to their actions.,
"66. Furthermore, the RTI Act under Section 2(f) clearly",
"provides that the inspection reports, documents etc. fall under",
"the purview of ""Information"" which is obtained by the public",
"authority (RBI) from a private body. Section 2(f), reads thus:",
"""information"" means any material in any form,",
"including records, documents, memos, e-mails,",
"opinions, advices, press releases, circulars,",
"orders, logbooks, contracts, reports, papers,",
"samples, models, data material held in any",
electronic form and information relating to any,
private body which can be accessed by a public,
authority under any other law for the time being,
in force;,
67. From reading of the above section it can be inferred that,
the Legislature’s intent was to make available to the general,
public such information which had been obtained by the,
public authorities from the private body. Had it been the case,
59,
where only information related to public authorities was to be,
"provided, the Legislature would not have included the word",
"""private body"". As in this case, the RBI is liable to provide",
information regarding inspection report and other documents,
to the general public.,
68. Even if we were to consider that RBI and the Financial,
"Institutions shared a ""Fiduciary Relationship"", Section 2(f)",
would still make the information shared between them to be,
accessible by the public. The facts reveal that Banks are trying,
"to cover up their underhand actions, they are even more liable",
to be subjected to public scrutiny.,
69. We have surmised that many Financial Institutions have,
resorted to such acts which are neither clean nor transparent.,
The RBI in association with them has been trying to cover up,
their acts from public scrutiny. It is the responsibility of the,
RBI to take rigid action against those Banks which have been,
practicing disreputable business practices.,
60,
70. From the past we have also come across financial,
institutions which have tried to defraud the public. These acts,
are neither in the best interests of the Country nor in the,
"interests of citizens. To our surprise, the RBI as a Watch Dog",
should have been more dedicated towards disclosing,
information to the general public under the Right to,
Information Act.,
"71. We also understand that the RBI cannot be put in a fix,",
"by making it accountable to every action taken by it. However,",
in the instant case the RBI is accountable and as such it has,
to provide information to the information seekers under,
"Section 10(1) of the RTI Act, which reads as under:",
"""Section 10(1) Severability --Where a request",
for access to information is rejected on the,
ground that it is in relation to information which,
"is exempt from disclosure, then,",
"notwithstanding anything contained in this Act,",
access may be provided to that part of the record,
which does not contain any information which is,
exempt from disclosure under this Act and,
which can reasonably be severed from any part,
"that contains exempt information.""",
72. It was also contended by learned senior counsel for the,
RBI that disclosure of information sought for will also go,
61,
against the economic interest of the nation. The submission,
is wholly misconceived.,
73. Economic interest of a nation in most common parlance,
are the goals which a nation wants to attain to fulfil its,
"national objectives. It is the part of our national interest,",
meaning thereby national interest can’t be seen with the,
spectacles(glasses) devoid of economic interest.,
74. It includes in its ambit a wide range of economic,
transactions or economic activities necessary and beneficial to,
"attain the goals of a nation, which definitely includes as an",
objective economic empowerment of its citizens. It has been,
recognized and understood without any doubt now that one of,
the tool to attain this goal is to make information available to,
people. Because an informed citizen has the capacity to,
reasoned action and also to evaluate the actions of the,
"legislature and executives, which is very important in a",
participative democracy and this will serve the nation’s,
interest better which as stated above also includes its,
62,
economic interests. Recognizing the significance of this tool it,
has not only been made one of the fundamental rights under,
Article 19 of the Constitution but also a Central Act has been,
brought into effect on 12th October 2005 as the Right to,
"Information Act, 2005.",
75. The ideal of ‘Government by the people’ makes it,
necessary that people have access to information on matters of,
public concern. The free flow of information about affairs of,
Government paves way for debate in public policy and fosters,
accountability in Government. It creates a condition for ‘open,
governance’ which is a foundation of democracy.,
76. But neither the Fundamental Rights nor the Right to,
Information have been provided in absolute terms. The,
fundamental rights guaranteed under Article 19 Clause 1(a),
are restricted under Article 19 clause 2 on the grounds of,
"national and societal interest. Similarly Section 8, clause 1 of",
"Right to Information Act, 2005, contains the exemption",
provisions where right to information can be denied to public,
"in the name of national security and sovereignty, national",
63,
"economic interests, relations with foreign states etc. Thus, not",
all the information that the Government generates will or shall,
be given out to the public. It is true that gone are the days of,
closed doors policy making and they are not acceptable also,
but it is equally true that there are some information which if,
"published or released publicly, they might actually cause more",
harm than good to our national interest... if not domestically it,
can make the national interests vulnerable internationally and,
it is more so possible with the dividing line between national,
and international boundaries getting blurred in this age of,
rapid advancement of science and technology and global,
economy. It has to be understood that rights can be enjoyed,
without any inhibition only when they are nurtured within,
protective boundaries. Any excessive use of these rights which,
may lead to tampering these boundaries will not further the,
national interest. And when it comes to national economic,
"interest, disclosure of information about currency or exchange",
"rates, interest rates, taxes, the regulation or supervision of",
"banking, insurance and other financial institutions, proposals",
64,
for expenditure or borrowing and foreign investment could in,
"some cases harm the national economy, particularly if",
"released prematurely. However, lower level economic and",
"financial information, like contracts and departmental budgets",
should not be withheld under this exemption. This makes it,
necessary to think when or at what stage an information is to,
"be provided i.e., the appropriate time of providing the",
information which will depend on nature of information sought,
for and the consequences it will lead to after coming in public,
domain.,
"77. In one of the case, the respondent S.S. Vohra sought",
certain information in relation to the Patna Branch of ICICI,
Bank and advisory issued to the Hong Kong Branch of ICICI,
Bank. The contention of the respondent was that the Finance,
Minister had made a written statement on the floor of the,
"House on 24.07.2009 that some banks like SBI, ICICI, Bank of",
"Baroda, Dena Bank etc., were violating FEMA Guidelines for",
opening of accounts and categorically mentioned that the,
Patna Branch of ICICI Bank Ltd. had opened some fictitious,
65,
accounts which were opened by fraudsters and hence an,
advisory note was issued to the concerned branch on,
December 2007 for its irregularities. The Finance Minister,
even mentioned that in the year 2008 the ICICI Bank Ltd. was,
also warned for alleged irregular dealings in securities in Hong,
"Kong. Hence, the respondent sought such advisory note as",
issued by the RBI to ICICI Bank. The Central Information,
Commissioner in the impugned order considered the RBI,
Master Circular dated 01.07.2009 to all the commercial banks,
giving various directions and finally held as under :-,
"""It has been contended by the Counsel on behalf of",
the ICICI Bank Limited that an advisory note is prepared,
"after reliance on documents such as Inspection Reports,",
"Scrutiny reports etc. and hence, will contain the contents of",
those documents too which are otherwise exempt from,
disclosure. We have already expressed our view in express,
terms that whether or not an Advisory Note shall be,
disclosed under the RTI Act will have to be determined on,
"case by case basis. In some other case, for example, there",
may be a situation where some contents of the Advisory,
Note may have to be severed to such an extent that details,
of Inspection Reports etc. can be separated from the Note,
and then be provided to the RTI Applicant. Section 10 of,
the RTI Act leaves it open to decide each case on its merits,
after having satisfied ourselves whether an Advisory Note,
needs to be provided as it is or whether some of its contents,
may be severed since they may be exempted per se under,
"the RTI Act. However, we find no reason, whatsoever, to",
apply Section 10 of the RTI Act in order to severe the,
contents of the Advisory Note issued by the RBI to the ICICI,
Bank Limited as the matter has already been placed on the,
floor of the Lok Sabha by the Hon’ble Finance Minister.,
66,
This is a matter of concern since it involves the,
violation of policy Guidelines initiated by the RBI and,
affects the public at large. Transparency cannot be brought,
overnight in any system and one can hope to witness,
accountability in a system only when its end users are,
"well-educated, well-informed and well-aware. If the",
customers of commercial banks will remain oblivious to the,
violations of RBI Guidelines and standards which such,
"banks regularly commit, then eventually the whole financial",
system of the country would be at a monumental loss. This,
can only be prevented by suo motu disclosure of such,
information as the penalty orders are already in public,
"domain.""",
"78. Similarly, in another case the respondent Jayantilal N.",
"Mistry sought information from the CPIO, RBI in respect of a",
Cooperative Bank viz. Saraspur Nagrik Sahkari Bank Limited,
"related to inspection report, which was denied by the CPIO on",
the ground that the information contained therein were,
received by RBI in a fiduciary capacity and are exempt under,
Section 8(1)(e) of RTI Act. The CIC directed the petitioner to,
furnish that information since the RBI expressed their,
willingness to disclose a summary of substantive part of the,
inspection report to the respondent. While disposing of the,
appeal the CIC observed:-,
"""Before parting with this appeal, we would like to",
record our observations that in a rapidly unfolding,
"economics scenario, there are public institutions, both",
"in the banking and non-banking sector, whose",
activities have not served public interest. On the,
67,
"contrary, some such institutions may have attempted",
to defraud the public of their moneys kept with such,
institutions in trust. RBI being the Central Bank is,
one of the instrumentalities available to the public,
which as a regulator can inspect such institutions and,
initiate remedial measures where necessary. It is,
"important that the general public, particularly, the",
share holders and the depositors of such institutions,
are kept aware of RBI’s appraisal of the functioning of,
such institutions and taken into confidence about the,
remedial actions initiated in specific cases. This will,
serve the public interest. The RBI would therefore be,
well advised to be proactive in disclosing information,
to the public in general and the information seekers,
"under the RTI Act, in particular. The provisions of",
Section 10(1) of the RTI Act can therefore be,
judiciously used when necessary to adhere to this,
"objective.""",
"79. In another case, where the respondent P.P. Kapoor",
sought information inter alia about the details of default in,
"loans taken from public sector banks by industrialists, out of",
"the list of defaulters, top 100 defaulters, names of the",
"businessmen, firm name, principal amount, interest amount,",
date of default and date of availing the loan etc. The said,
information was denied by the CPIO mainly on the basis that,
it was held in fiduciary capacity and was exempt from,
"disclosure of such information. Allowing the appeal, the CIC",
directed for the disclosure of such information. The CIC in the,
impugned order has rightly observed as under:-,
68,
"""I wish government and its instrumentalities",
would remember that all information held by,
"them is owned by citizens, who are sovereign.",
"Further, it is often seen that banks and financial",
institutions continue to provide loans to,
industrialists despite their default in repayment,
"of an earlier loan."" This Court in UP Financial",
"Corporation vs. Gem Cap India Pvt. Ltd., AIR",
1993 SC 1435 has noted that :,
"""Promoting industrialization at the cost of",
public funds does not serve the public,
"interest, it merely amounts to transferring",
public money to private account’. Such,
practices have led citizens to believe that,
defaulters can get away and play fraud on,
public funds. There is no doubt that,
information regarding top industrialists,
who have defaulted in repayment of loans,
must be brought to citizens’ knowledge;,
there is certainly a larger public interest,
that could be served on ....disclosure of,
"the same. In fact, information about",
industrialists who are loan defaulters of,
the country may put pressure on such,
persons to pay their dues. This would,
have the impact of alerting Citizens about,
those who are defaulting in payments and,
could also have some impact in shaming,
them.,
RBI had by its Circular DBOD No.,
"BC/CIS/47/20.16.002/94 dated April 23, 1994",
directed all banks to send a report on their,
"defaulters, which it would share with all banks",
"and financial institutions, with the following",
objectives:,
1) To alert banks and financial institutions (FIs),
and to put them on guard against borrowers,
who have defaulted in their dues to lending,
institutions;,
2) To make public the names of the borrowers,
who have defaulted and against whom suits,
"have been filed by banks/ FIs.""",
69,
"80. At this juncture, we may refer the decision of this Court",
"in Mardia Chemicals Limited vs. Union of India, (2004) 4",
"SCC 311, wherein this court while considering the validity of",
SARFAESI Act and recovery of non-performing assets by,
"banks and financial institutions in India, held :-",
""".............it may be observed that though the",
transaction may have a character of a private,
contract yet the question of great importance behind,
such transactions as a whole having far reaching,
effect on the economy of the country cannot be,
"ignored, purely restricting it to individual",
transactions more particularly when financing is,
through banks and financial institutions utilizing the,
"money of the people in general namely, the",
depositors in the banks and public money at the,
"disposal of the financial institutions. Therefore,",
wherever public interest to such a large extent is,
involved and it may become necessary to achieve an,
"object which serves the public purposes, individual",
rights may have to give way. Public interest has,
always been considered to be above the private,
"interest. Interest of an individual may, to some",
"extent, be affected but it cannot have the potential of",
taking over the public interest having an impact in,
"the socio- economic drive of the country...........""",
81. In rest of the cases the CIC has considered elaborately,
the information sought for and passed orders which in our,
"opinion do not suffer from any error of law, irrationality or",
arbitrariness.,
70,
"82. We have, therefore, given our anxious consideration to",
the matter and came to the conclusion that the Central,
Information Commissioner has passed the impugned orders,
"giving valid reasons and the said orders, therefore, need no",
interference by this Court.,
83. There is no merit in all these cases and hence they are,
dismissed.,
..................................J.,
(M.Y. Eqbal),
..................................J.,
(C. Nagappan ),
New Delhi,
"December 16, 2015",
71,
ITEM NO.1A COURT NO.9 SECTION XVIA,
(For Judgment),
S U P R E M E C O U R T O F I N D I A,
RECORD OF PROCEEDINGS,
Transfer Case (Civil) No.91/2015 @ T.P.(C) No.707/2012,
RESERVE BANK OF INDIA Petitioner(s),
VERSUS,
JAYANTILAL N. MISTRY Respondent(s),
WITH T.C.(C) No.92/2015 @ T.P.(C) No.708/2012,
T.C.(C) No. 93/2015 @ T.P.(C) No.711/2012,
T.C.(C) No. 94/2015 @ T.P.(C) No.712/2012,
T.C.(C) No. 95/2015 @ T.P.(C) No.713/2012,
T.C.(C) No. 96/2015 @ T.P.(C) No.715/2012,
T.C.(C) No. 97/2015 @ T.P.(C) No.716/2012,
T.C.(C) No. 98/2015 @ T.P.(C) No.717/2012,
T.C.(C) No. 99/2015 @ T.P.(C) No.718/2012,
T.C.(C) No. 100/2015 @ T.P.(C) No.709/2012,
T.C.(C) No. 101/2015 @ T.P.(C) No.714/2012,
Date : 16/12/2015 These Cases were called on for,
pronouncement of Judgment today.,
"For Petitioner(s) Mr. T. R. Andhyarujina, Sr. Adv.",
"Mr. Kuldeep S. Parihar, Adv.",
"Mr. H. S. Parihar,Adv.",
"Mr. Soumik Gitosal, Adv.",
"Mr. Siddharth Sijoria, Adv.",
"Mr. P. Narasimhan,Adv.",
"Mr. Bharat Sangal,Adv.",
"For Respondent(s) Dr. Lalit Bhasin, Adv.",
"Ms. Nina Gupta, Adv.",
"Mr. Mudit Sharma,Adv.",
72,
"Mr. Prashant Bhushan,Adv.",
"Mr. H. S. Parihar,Adv.",
"Ms. Jyoti Mendiratta,Adv.",
"Mr. K.R. Anand, Adv.",
"Mr. Vivek Gupta,Adv.",
"Ms. Manisha T. Karia,Adv.",
"Ms. Srishti Rani, Adv.",
"Mr. Rakesh K. Sharma,Adv.",
"Mr. Amol B. Karande, Adv.",
Hon’ble Mr. Justice M. Y. Eqbal pronounced the,
reportable Judgment of the Bench comprising of His Lordship,
and Hon’ble Mr. Justice C. Nagappan.,
These transferred Cases are dismissed in terms of the,
signed reportable judgment.,
(Sanjay Kumar-II) (Indu Pokhriyal),
Court Master Court Master,
(Signed Order is placed on the file),
73,
1,
Reportable,
IN THE SUPREME COURT OF INDIA,
CIVIL APPELLATE JURISDICTION,
CIVIL APPEAL NO. 7571 OF 2011,
[Arising out of SLP (C) No.2040/2011],
The Institute of Chartered Accountants of India … Appellant,
Vs.,
Shaunak H.Satya & Ors. … Respondents,
J U D G M E N T,
"R.V.RAVEENDRAN,J.",
Leave granted.,
2. The appellant Institute of Chartered Accountants of India (for short,
‘ICAI’) is a body corporate established under section 3 of the Chartered,
"Accountants Act, 1949. One of the functions of the appellant council is to",
conduct the examination of candidates for enrolment as Chartered,
Accountants. The first respondent appeared in the Chartered Accountants’,
"final examination conducted by ICAI in November, 2007. The results were",
declared in January 2008. The first respondent who was not successful in the,
examination applied for verification of marks. The appellant carried out the,
verification in accordance with the provisions of the Chartered Accountants,
2,
"Regulations, 1988 and found that there was no discrepancy in evaluation of",
answerscripts. The appellant informed the first respondent accordingly.,
3. On 18.1.2008 the appellant submitted an application seeking the,
"following information under 13 heads, under the Right to Information Act,",
2005 (‘RTI Act’ for short) :,
“1) Educational qualification of the examiners & Moderators with subject,
wise classifications. (you may not give me the names of the examiners &,
moderators).,
2) Procedure established for evaluation of exam papers.,
"3) Instructions issued to the examiners, and moderators oral as well as",
written if any.,
4) Procedure established for selection of examiners & moderators.,
5) Model answers if any given to the examiners & moderators if any.,
6) Remuneration paid to the examiners & moderators.,
7) Number of students appearing for exams at all levels in the last 2 years,
(i.e. PE1/PE2/PCC/CPE/Final with break up),
8) Number of students that passed at the 1st attempt from the above.,
9) From the number of students that failed in the last 2 years (i.e.,
"PE1/PE2/PCC/CPE/Final with break up) from the above, how many",
students opted for verification of marks as per regulation 38.,
10) Procedure adopted at the time of verification of marks as above.,
11) Number of students whose marks were positively changed out of those,
students that opted for verification of marks.,
12) Educational qualifications of the persons performing the verification,
of marks under Regulation 38 & remuneration paid to them.,
13) Number of times that the council has revised the marks of any,
"candidate, or any class of candidates, in accordance with regulation",
3,
"39(2) of the Chartered Accountants Regulations, 1988, the criteria",
"used for such discretion, the quantum of such revision, the quantum",
"of such revision, the authority that decides such discretion, and the",
number of students along with the quantum of revision affected by,
"such revision in the last 5 exams, held at all levels (i.e.",
PE1/PE2/PCC/CPE/Final with break up).”,
(emphasis supplied),
4. The appellant by its reply dated 22.2.2008 gave the following,
responses/information in response to the 13 queries :,
"“1. Professionals, academicians and officials with relevant academic and",
practical experience and exposure in relevant and related fields.,
2&3. Evaluation of answer books is carried out in terms of the,
guidance including instructions provided by Head Examiners,
"appointed for each subject(s). Subsequently, a review thereof is",
undertaken for the purpose of moderators.,
"4. In terms of (1) above, a list of examiners is maintained under",
"Regulation 42 of the Chartered Accountants Regulations, 1988. Based on",
"the performance of the examiners, moderators are appointed from amongst",
the examiners.,
5. Solutions are given in confidence of examiners for the purpose of,
evaluation. Services of moderators are utilized in our context for,
paper setting.,
"6. Rs.50/- per answer book is paid to the examiner while Rs.10,000/- is",
paid to the moderator for each paper.,
7. The number of students who appeared in the last two years is as follow:,
Month & Number of students Appeared,
Year,
PE-I PE-II PCC CPE* FINAL,
"Nov.,2005 16228 47522 Not held Not held 28367",
"May,2006 32215 49505 Not held Not held 26254",
"Nov.,2006 16089 49220 Not held 27629 24704",
"May,2007 6194 56624 51 42910 23490",
*CPE is read as Common Proficiency Test (CPT).,
4,
"8. Since such a data is not compiled, it is regretted that the number of",
students who passed Final Examination at the 1st attempt cannot be made,
available.,
9. The number of students who applied for the verification of answer,
books is as follows:-,
Month & Number of students who applied for verification from,
Year among the failed candidates*,
PE-I PE-II PCC CPE FINAL,
"Nov.,2005 598 4150 Not held Not held 4432",
"May,2006 1607 4581 Not held Not held 4070",
"Nov.,2006 576 4894 Not held 205 3352",
"May,2007 204 5813 07 431 3310",
* This figure may contain some pass candidates also.,
10. Each request for verification is processed in accordance with,
"Regulation 39(4) of the Chartered Accountants Regulation, 1988",
through well laid down scientific and meticulous procedure and a,
comprehensive checking is done before arriving at any conclusion.,
The process of verification starts after declaration of result and each,
request is processed on first come first served basis. The verification of,
"the answer books, as requested, is done by two independent persons",
"separately and then, reviewed by an Officer of the Institute and upon",
"his satisfaction, the letter informing the outcome of the verification",
exercise is issued after the comprehensive check has been,
satisfactorily completed.,
11. The number of students who were declared passed consequent to,
the verification of answer books is as given below:-,
Month & Number of students who applied for verification from,
Year among the failed candidates*,
PE-I PE-II PCC CPE FINAL,
"Nov.,2005 14 40 Not held Not held 37",
"May,2006 24 86 Not held Not held 30",
"Nov.,2006 07 61 Not held 02 35",
"May,2007 03 56 Nil Nil 27",
* This figure may contain some pass candidates also.,
12. Independent persons such as retired Govt. teachers/Officers are,
assigned the task of verification of answer books work. A token,
5,
honorarium of Rs.6/- per candidate besides lump sum daily conveyance,
allowance is paid.,
13.The Examination Committee in terms of Regulation 39(2) has the,
authority to revise the marks based on the findings of the Head,
Examiners and incidental information in the knowledge of the,
"Examination Committee, in its best wisdom. Since the details",
sought are highly confidential in nature and there is no larger,
"public interest warrants disclosure, the same is denied under",
"Section 8(1)(e) of the Right to Information Act, 2005.”",
(emphasis supplied),
"5. Not being satisfied with the same, the respondent filed an appeal",
"before the appellate authority. The appellate authority dismissed the appeal,",
"by order dated 10.4.2008, concurring with the order of the Chief Public",
Information Officer of the appellant. The first respondent thereafter filed a,
second appeal before the Central Information Commission (for short ‘CIC’),
in regard to queries (1) to (5) and (7) to (13). CIC by order dated 23.12.2008,
"rejected the appeal in regard to queries 3, 5 and 13 (as also Query 2) while",
directing the disclosure of information in regard to the other questions. We,
extract below the reasoning given by the CIC to refuse disclosure in regard,
"to queries 3,5 and 13.",
“Re: Query No.3.,
Decision:,
This request of the Appellant cannot be without seriously and perhaps,
irretrievably compromising the entire examination process. An instruction,
"issued by a public authority – in this case, examination conducting",
authority – to its examiners is strictly confidential. There is an implied,
contract between the examiners and the examination conducting public,
6,
authority. It would be inappropriate to disclose this information. This item,
"of information too, like the previous one, attracts section 8(1)(d) being the",
intellectual property of the public authority having being developed,
through careful empirical and intellectual study and analysis over the,
"years. I, therefore, hold that this item of query attracts exemption under",
section 8(1)(e) as well as section 8(1)(d) of the RTI Act.,
Re : Query No.5.,
Decision:,
Respondents have explained that what they provide to the examiners is,
“solutions” and not “model answers” as assumed by the appellant. For the,
"aid of the students and examinees, “suggested answers” to the questions in",
an exam are brought out and sold in the market.,
It would be wholly inappropriate to provide to the students the solutions,
given to the questions only for the exclusive use of the examiners and,
moderators. Given the confidentiality of interaction between the public,
"authority holding the examinations and the examiners, the “solutions”",
qualifies to be items barred by section 8(1)(e) of the RTI Act. This item of,
information also attracts section 8(1)(d) being the exclusive intellectual,
property of the public authority. Respondents have rightly advised the,
appellant to secure the “suggested answers” to the questions from the open,
"market, where these are available for sale.",
Re : Query No.13.,
Decision:,
I find no infirmity in the reply furnished to the appellant. It is a categorical,
statement and must be accepted as such. Appellant seems to have certain,
presumptions and assumptions about what these replies should be.,
Respondents are not obliged to cater to that. It is therefore held that there,
shall be no further disclosure of information as regards this item of,
query.”,
6. Feeling aggrieved by the rejection of information sought under items,
"3, 5 and 13, the first respondent approached the Bombay High Court by",
filing a writ petition. The High Court allowed the said petition by order,
7,
dated 30.11.2010 and directed the appellant to supply the information in,
"regard to queries 3, 5 and 13, on the following reasoning :",
“According to the Central Information Commission the solutions which,
have been supplied by the Board to the examiners are given in confidence,
"and therefore, they are entitled to protection under Section 8(1)(e) of the",
RTI Act. Section 8(1)(e) does not protect confidential information and the,
claim of intellectual property has not made by the respondent No.2,
anywhere. In the reply it is suggested that the suggested answers are,
"published and sold in open market by the Board. Therefore, there can be",
no confidentiality about suggested answers. It is no where explained what,
is the difference between the suggested answers and the solutions. In our,
"opinion, the orders of both Authorities in this respect also suffer from non-",
application of mind and therefore they are liable to be set aside. We find,
that the right given under the Right to Information Act has been dealt with,
by the Authorities under that Act in most casual manner without properly,
"applying their minds to the material on record. In our opinion, therefore,",
"information sought against queries Nos.3,5 and 13 could not have been",
denied by the Authorities to the petitioner. The principal defence of the,
respondent No.2 is that the information is confidential. Till the result of,
"the examination is declared, the information sought by the petitioner has to",
"be treated as confidential, but once the result is declared, in our opinion,",
that information cannot be treated as confidential. We were not shown,
anything which would even indicate that it is necessary to keep the,
information in relation to the examination which is over and the result is,
also declared as confidential.”,
7. The said order of the High Court is challenged in this appeal by,
special leave. The appellant submitted that it conducts the following,
examinations: (i) the common proficiency test; (ii) professional education,
examination-II (till May 2010); (iii) professional competence examination;,
(iv) integrated professional competence examination; (v) final examination;,
and (vi) post qualification course examinations. A person is enrolled as a,
"Chartered Accountant only after passing the common proficiency test,",
8,
professional educational examination-II/professional competence,
examination and final examination. The number of candidates who applied,
"for various examinations conducted by ICAI were 2.03 lakhs in 2006, 4.16",
lakhs in 2007; 3.97 lakh candidates in 2008 and 4.20 lakhs candidates in,
2009. ICAI conducts the examinations in about 343 centres spread over 147,
cities throughout the country and abroad. The appellant claims to follow the,
following elaborate system with established procedures in connection with,
"its examinations, taking utmost care with regard to valuation of answer",
sheets and preparation of results and also in carrying out verification in case,
a student applies for the same in accordance with the following Regulations:,
“Chartered Accountants with a standing of minimum of 5-7 years in the,
profession or teachers with a minimum experience of 5-7 years in,
university education system are empanelled as examiners of the Institute.,
The eligibility criteria to be empanelled as examiner for the examinations,
"held in November, 2010 was that a chartered accountant with a minimum",
"of 3 years’ standing, if in practice, or with a minimum of 10 yeas standing,",
if in service and University lecturers with a minimum of 5 years’ teaching,
experience at graduate/post graduate level in the relevant subjects with,
examiner ship experience of 5 years. The said criteria is continued to be,
followed. The bio-data of such persons who wish to be empanelled are,
scrutinized by the Director of Studies of the Institute in the first instance.,
"Thereafter, Examination Committee considers each such application and",
"takes a decision thereon. The examiners, based on their performance and",
"experience with the system of the ICAI, are invited to take up other",
"assignments of preparation of question paper, suggested solution, marking",
"scheme, etc. and also appointed as Head Examiners to supervise the",
evaluation carried out by the different examiners in a particular subject,
from time to time.,
A question paper and its solution are finalized by different experts in the,
"concerned subject at 3 stages. In addition, the solution is also vetted by",
Director of Studies of the Institute after the examination is held and before,
the evaluation of the answer sheets are carried out by examiners. All,
9,
possible alternate solutions to a particular question as intimated by,
different examiners in a subject are also included in the solution. Each,
examiner in a particular subject is issued detailed instructions on marking,
scheme by the Head Examiners and general guidelines for evaluation,
"issued by the ICAI. In addition, performance of each examiner, to",
ascertain whether the said examiner has complied with the instructions,
"issued as also the general guidelines of the Institute, is assessed by the",
Head Examiner at two stages before the declaration of result. The said,
process has been evolved based on the experience gained in the last 60,
years of conducting examinations and to ensure all possible uniformity in,
evaluation of answer sheets carried out by numerous examiners in a,
particular subject and to provide justice to the candidates.,
The examination process/procedure/systems of the ICAI are well in place,
and have been evolved over several decades out of experience gained. The,
said process/procedure/systems have adequate checks to ensure fair results,
and also ensure that due justice is done to each candidate and no candidate,
ever suffers on any count.”,
8. The appellant contends that the information sought as per queries (3),
"and (5) - that is, instructions and model answers, if any, issued to the",
examiners and moderators by ICAI cannot be disclosed as they are exempted,
from disclosure under clauses (d) and (e) of sub-section (1) of Section 8 of,
RTI Act. It is submitted that the request for information is also liable to be,
rejected under section 9 of the Act. They also contended that in regard to,
"query No.(13), whatever information available had been furnished, apart",
from generally invoking section 8(1)(e) to claim exemption.,
"9. On the said contentions, the following questions arise for our",
consideration:,
10,
(i) Whether the instructions and solutions to questions (if any) given by,
"ICAI to examiners and moderators, are intellectual property of the ICAI,",
disclosure of which would harm the competitive position of third parties and,
therefore exempted under section 8(1)(d) of the RTI Act?,
(ii) Whether providing access to the information sought (that is,
instructions and solutions to questions issued by ICAI to examiners and,
moderators) would involve an infringement of the copyright and therefore,
the request for information is liable to be rejected under section 9 of the RTI,
Act?,
(iii) Whether the instructions and solutions to questions are information,
made available to examiners and moderators in their fiduciary capacity and,
therefore exempted under section 8(1)(e) of the RTI Act?,
(iv) Whether the High Court was justified in directing the appellant to,
furnish to the first respondent five items of information sought (in query,
"No.13) relating to Regulation 39(2) of Chartered Accountants Regulations,",
1988?,
Re: Question (i),
10. The term ‘intellectual property’ refers to a category of intangible,
rights protecting commercially valuable products of human intellect,
"comprising primarily trade mark, copyright and patent right, as also trade",
"secret rights, publicity rights, moral rights and rights against unfair",
11,
"competition (vide Black’s Law Dictionary, 7th Edition, page 813). Question",
"papers, instructions regarding evaluation and solutions to questions (or",
model answers) which are furnished to examiners and moderators in,
"connection with evaluation of answer scripts, are literary works which are",
products of human intellect and therefore subject to a copyright. The paper,
"setters and authors thereof (other than employees of ICAI), who are the first",
owners thereof are required to assign their copyright in regard to the,
question papers/solutions in favour of ICAI. We extract below the relevant,
standard communication sent by ICAI in that behalf:,
“The Council is anxious to prevent the unauthorized circulation of,
Question Papers set for the Chartered Accountants Examinations as well,
"as the solutions thereto. With that object in view, the Council proposes to",
reserve all copy-rights in the question papers as well as solutions. In order,
"to enable the Council to retain the copy-rights, it has been suggested that it",
would be advisable to obtain a specific assignment of any copy-rights or,
rights of publication that you may be deemed to possess in the questions,
set by you for the Chartered Accountants Examinations and the solutions,
thereto in favour of the Council. I have no doubt that you will appreciate,
that this is merely a formality to obviate any misconception likely to arise,
later on.”,
"In response to it, the paper setters/authors give declarations of assignment,",
assigning their copyrights in the question papers and solutions prepared by,
"them, in favour of ICAI. Insofar as instructions prepared by the employees",
"of ICAI, the copyright vests in ICAI. Consequently, the question papers,",
solutions to questions and instructions are the intellectual properties of ICAI.,
12,
"The appellant contended that if the question papers, instructions or solutions",
"to questions/model answers are disclosed before the examination is held, it",
would harm the competitive position of all other candidates who participate,
in the examination and therefore the exemption under section 8(1)(d) is,
squarely attracted.,
11. The first respondent does not dispute that the appellant is entitled to,
"claim a copyright in regard to the question papers, solutions/model answers,",
instructions relating to evaluation and therefore the said material constitute,
intellectual property of the appellant. But he contends that the exemption,
under section 8(1)(d) will not be available if the information is merely an,
intellectual property. The exemption under section 8(1)(d) is available only,
"in regard to such intellectual property, the disclosure of which would harm",
the competitive position of any third party. It was submitted that the,
appellant has not been able to demonstrate that the disclosure of the said,
intellectual property (instructions and solutions/model answers) would harm,
the competitive position of any third party.,
12. Information can be sought under the RTI Act at different stages or,
different points of time. What is exempted from disclosure at one point of,
"time may cease to be exempted at a later point of time, depending upon the",
13,
"nature of exemption. For example, any information which is exempted from",
"disclosure under section 8, is liable to be disclosed if the application is made",
in regard to the occurrence or event which took place or occurred or,
"happened twenty years prior to the date of the request, vide section 8(3) of",
"the RTI Act. In other words, information which was exempted from",
"disclosure, if an application is made within twenty years of the occurrence,",
"may not be exempted if the application is made after twenty years. Similarly,",
"if information relating to the intellectual property, that is the question",
"papers, solutions/model answers and instructions, in regard to any particular",
examination conducted by the appellant cannot be disclosed before the,
"examination is held, as it would harm the competitive position of",
innumerable third parties who are taking the said examination. Therefore it,
is obvious that the appellant examining body is not liable to give to any,
"citizen any information relating to question papers, solutions/model",
answers and instructions relating to a particular examination before the date,
of such examination. But the position will be different once the examination,
"is held. Disclosure of the question papers, model answers and instructions in",
"regard to any particular examination, would not harm the competitive",
position of any third party once the examination is held. In fact the question,
papers are disclosed to everyone at the time of examination. The appellant,
14,
voluntarily publishes the “suggested answers” in regard to the question,
"papers in the form of a book for sale every year, after the examination.",
Therefore section 8(1)(d) of the RTI Act does not bar or prohibit the,
"disclosure of question papers, model answers (solutions to questions) and",
instructions if any given to the examiners and moderators after the,
"examination and after the evaluation of answerscripts is completed, as at that",
stage they will not harm the competitive position of any third party. We,
therefore reject the contention of the appellant that if an information is,
"exempt at any given point of time, it continues to be exempt for all time to",
come.,
Re : Question (ii),
13. Section 9 of the RTI Act provides that a Central or State Public,
Information Officer may reject a request for information where providing,
access to such information would involve an infringement of copyright,
subsisting in a person other than the State. The word ‘State’ used in section,
"9 of RTI Act refers to the Central or State Government, Parliament or",
"Legislature of a State, or any local or other authorities as described under",
Article 12 of the Constitution. The reason for using the word ‘State’ and not,
‘public authority’ in section 9 of RTI Act is apparently because the,
15,
definition of ‘public authority’ in the Act is wider than the definition of,
"‘State’ in Article 12, and includes even non-government organizations",
financed directly or indirectly by funds provided by the appropriate,
government. Be that as it may. An application for information would be,
"rejected under section 9 of RTI Act, only if information sought involves an",
infringement of copyright subsisting in a person other than the State. ICAI,
"being a statutory body created by the Chartered Accountants Act, 1948 is",
‘State’. The information sought is a material in which ICAI claims a,
copyright. It is not the case of ICAI that anyone else has a copyright in such,
"material. In fact it has specifically pleaded that even if the question papers,",
"solutions/model answers, or other instructions are prepared by any third",
"party for ICAI, the copyright therein is assigned in favour of ICAI.",
"Providing access to information in respect of which ICAI holds a copyright,",
does not involve infringement of a copyright subsisting in a person other,
than the State. Therefore ICAI is not entitled to claim protection against,
disclosure under section 9 of the RTI Act.,
14. There is yet another reason why section 9 of RTI Act will be,
inapplicable. The words ‘infringement of copyright’ have a specific,
"connotation. Section 51 of the Copyright Act, 1957 provides when a",
16,
copyright in a work shall be deemed to be infringed. Section 52 of the Act,
enumerates the acts which are not infringement of a copyright. A combined,
reading of sections 51 and 52(1)(a) of Copyright Act shows that furnishing,
"of information by an examining body, in response to a query under the RTI",
Act may not be termed as an infringement of copyright. Be that as it may.,
Re : Question (iii),
15. We will now consider the third contention of ICAI that the,
information sought being an information available to a person in his,
"fiduciary relationship, is exempted under section 8(1)(e) of the RTI Act.",
This Court in Central Board of Secondary Education & Anr. v. Aditya,
Bandopadhyay & Ors. [2011 (8) SCALE 645] considered the meaning of the,
words information available to a person in his fiduciary capacity and,
observed thus:,
“But the words ‘information available to a person in his fiduciary,
relationship’ are used in section 8(1)(e) of RTI Act in its normal and well,
"recognized sense, that is to refer to persons who act in a fiduciary",
"capacity, with reference to a specific beneficiary or beneficiaries who are",
to be expected to be protected or benefited by the actions of the fiduciary –,
"a trustee with reference to the beneficiary of the trust, a guardian with",
"reference to a minor/physically/infirm/mentally challenged, a parent with",
"reference to a child, a lawyer or a chartered accountant with reference to a",
"client, a doctor or nurse with reference to a patient, an agent with",
"reference to a principal, a partner with reference to another partner, a",
"director of a company with reference to a share-holder, an executor with",
"reference to a legatee, a receiver with reference to the parties to a lis, an",
employer with reference to the confidential information relating to the,
17,
"employee, and an employee with reference to business",
dealings/transaction of the employer.”,
16. The instructions and ‘solutions to questions’ issued to the examiners,
"and moderators in connection with evaluation of answer scripts, as noticed",
"above, is the intellectual property of ICAI. These are made available by",
ICAI to the examiners and moderators to enable them to evaluate the answer,
"scripts correctly and effectively, in a proper manner, to achieve uniformity",
"and consistency in evaluation, as a large number of evaluators and",
moderators are engaged by ICAI in connection with the evaluation. The,
instructions and solutions to questions are given by the ICAI to the,
examiners and moderators to be held in confidence. The examiners and,
moderators are required to maintain absolute secrecy and cannot disclose the,
"answer scripts, the evaluation of answer scripts, the instructions of ICAI and",
"the solutions to questions made available by ICAI, to anyone. The examiners",
and moderators are in the position of agents and ICAI is in the position of,
principal in regard to such information which ICAI gives to the examiners,
"and moderators to achieve uniformity, consistency and exactness of",
evaluation of the answer scripts. When anything is given and taken in trust,
"or in confidence, requiring or expecting secrecy and confidentiality to be",
18,
"maintained in that behalf, it is held by the recipient in a fiduciary",
relationship.,
17. It should be noted that section 8(1)(e) uses the words “information,
available to a person in his fiduciary relationship. Significantly section,
8(1)(e) does not use the words “information available to a public authority,
in its fiduciary relationship”. The use of the words “person” shows that the,
holder of the information in a fiduciary relationship need not only be a,
‘public authority’ as the word ‘person’ is of much wider import than the,
word ‘public authority’. Therefore the exemption under section 8(1)(e) is,
available not only in regard to information that is held by a public authority,
"(in this case the examining body) in a fiduciary capacity, but also to any",
information that is given or made available by a public authority to anyone,
"else for being held in a fiduciary relationship. In other words, anything given",
and taken in confidence expecting confidentiality to be maintained will be,
information available to a person in fiduciary relationship. As a,
"consequence, it has to be held that the instructions and solutions to questions",
"communicated by the examining body to the examiners, head-examiners and",
"moderators, are information available to such persons in their fiduciary",
relationship and therefore exempted from disclosure under section 8(1)(d) of,
RTI Act.,
19,
"18. The information to which RTI Act applies falls into two categories,",
"namely, (i) information which promotes transparency and accountability in",
"the working of every public authority, disclosure of which helps in",
"containing or discouraging corruption, enumerated in clauses (b) and (c) of",
section 4(1) of RTI Act; and (ii) other information held by public authorities,
not falling under section 4(1)(b) and (c) of RTI Act. In regard to information,
"falling under the first category, the public authorities owe a duty to",
disseminate the information widely suo moto to the public so as to make it,
easily accessible to the public. In regard to information enumerated or,
"required to be enumerated under section 4(1)(b) and (c) of RTI Act,",
"necessarily and naturally, the competent authorities under the RTI Act, will",
have to act in a pro-active manner so as to ensure accountability and ensure,
that the fight against corruption goes on relentlessly. But in regard to other,
"information which do not fall under Section 4(1)(b) and (c) of the Act, there",
is a need to proceed with circumspection as it is necessary to find out,
whether they are exempted from disclosure. One of the objects of democracy,
is to bring about transparency of information to contain corruption and bring,
about accountability. But achieving this object does not mean that other,
equally important public interests including efficient functioning of the,
"governments and public authorities, optimum use of limited fiscal resources,",
20,
"preservation of confidentiality of sensitive information, etc. are to be ignored",
or sacrificed. The object of RTI Act is to harmonize the conflicting public,
"interests, that is, ensuring transparency to bring in accountability and",
"containing corruption on the one hand, and at the same time ensure that the",
"revelation of information, in actual practice, does not harm or adversely",
affect other public interests which include efficient functioning of the,
"governments, optimum use of limited fiscal resources and preservation of",
"confidentiality of sensitive information, on the other hand. While sections 3",
"and 4 seek to achieve the first objective, sections 8, 9, 10 and 11 seek to",
achieve the second objective. Therefore when section 8 exempts certain,
"information from being disclosed, it should not be considered to be a fetter",
"on the right to information, but as an equally important provision protecting",
other public interests essential for the fulfilment and preservation of,
democratic ideals. Therefore in dealing with information not falling under,
"section 4(1)(b) and (c), the competent authorities under the RTI Act will not",
read the exemptions in section 8 in a restrictive manner but in a practical,
manner so that the other public interests are preserved and the RTI Act,
attains a fine balance between its goal of attaining transparency of,
information and safeguarding the other public interests.,
21,
19. Among the ten categories of information which are exempted from,
"disclosure under section 8 of RTI Act, six categories which are described in",
"clauses (a), (b), (c), (f), (g) and (h) carry absolute exemption. Information",
"enumerated in clauses (d), (e) and (j) on the other hand get only conditional",
"exemption, that is the exemption is subject to the overriding power of the",
"competent authority under the RTI Act in larger public interest, to direct",
disclosure of such information. The information referred to in clause (i),
"relates to an exemption for a specific period, with an obligation to make the",
said information public after such period. The information relating to,
intellectual property and the information available to persons in their,
"fiduciary relationship, referred to in clauses (d) and (e) of section 8(1) do not",
"enjoy absolute exemption. Though exempted, if the competent authority",
under the Act is satisfied that larger public interest warrants disclosure of,
"such information, such information will have to be disclosed. It is needless",
to say that the competent authority will have to record reasons for holding,
that an exempted information should be disclosed in larger public interest.,
20. In this case the Chief Information Commissioner rightly held that the,
information sought under queries (3) and (5) were exempted under section,
8(1)(e) and that there was no larger public interest requiring denial of the,
statutory exemption regarding such information. The High Court fell into an,
22,
error in holding that the information sought under queries (3) and (5) was,
not exempted.,
Re : Question (iv),
21. Query (13) of the first respondent required the appellant to disclose,
the following information: (i) The number of times ICAI had revised the,
marks of any candidate or any class of candidates under Regulation 39(2);,
(ii) the criteria used for exercising such discretion for revising the marks;,
(iii) the quantum of such revisions; (iv) the authority who decides the,
exercise of discretion to make such revision; and (v) the number of students,
(with particulars of quantum of revision) affected by such revision held in,
the last five examinations at all levels.,
"22. Regulation 39(2) of the Chartered Accountants Regulations, 1988",
"provides that the council may in its discretion, revise the marks obtained by",
all candidates or a section of candidates in a particular paper or papers or in,
"the aggregate, in such manner as may be necessary for maintaining its",
standards of pass percentage provided in the Regulations. Regulation 39(2),
"thus provides for what is known as ‘moderation’, which is a necessary",
concomitant of evaluation process of answer scripts where a large number of,
examiners are engaged to evaluate a large number of answer scripts. This,
23,
Court explained the standard process of moderation in Sanjay Singh v. U.P.,
Public Service Commission - 2007 (3) SCC 720 thus:,
"“When a large number of candidates appear for an examination, it is",
necessary to have uniformity and consistency in valuation of the answer-,
scripts. Where the number of candidates taking the examination are,
limited and only one examiner (preferably the paper-setter himself),
"evaluates the answer-scripts, it is to be assumed that there will be",
uniformity in the valuation. But where a large number of candidates take,
"the examination, it will not be possible to get all the answer-scripts",
"evaluated by the same examiner. It, therefore, becomes necessary to",
distribute the answer-scripts among several examiners for valuation with,
the paper-setter (or other senior person) acting as the Head Examiner.,
When more than one examiner evaluate the answer-scripts relating to a,
"subject, the subjectivity of the respective examiner will creep into the",
marks awarded by him to the answer- scripts allotted to him for valuation.,
Each examiner will apply his own yardstick to assess the answer-scripts.,
"Inevitably therefore, even when experienced examiners receive equal",
"batches of answer scripts, there is difference in average marks and the",
"range of marks awarded, thereby affecting the merit of individual",
"candidates. This apart, there is 'Hawk- Dove' effect. Some examiners are",
liberal in valuation and tend to award more marks. Some examiners are,
strict and tend to give less marks. Some may be moderate and balanced in,
"awarding marks. Even among those who are liberal or those who are strict,",
there may be variance in the degree of strictness or liberality. This means,
"that if the same answer-script is given to different examiners, there is all",
likelihood of different marks being assigned. If a very well written,
answer-script goes to a strict examiner and a mediocre answer-script goes,
"to a liberal examiner, the mediocre answer-script may be awarded more",
"marks than the excellent answer-script. In other words, there is 'reduced",
valuation' by a strict examiner and 'enhanced valuation' by a liberal,
examiner. This is known as 'examiner variability' or 'Hawk-Dove effect'.,
"Therefore, there is a need to evolve a procedure to ensure uniformity inter",
se the Examiners so that the effect of 'examiner subjectivity' or 'examiner,
variability' is minimised. The procedure adopted to reduce examiner,
subjectivity or variability is known as moderation. The classic method of,
moderation is as follows:,
xxx xxx xxx,
"(ii) To achieve uniformity in valuation, where more than one examiner is",
"involved, a meeting of the Head Examiner with all the examiners is held",
"soon after the examination. They discuss thoroughly the question paper,",
the possible answers and the weightage to be given to various aspects of,
24,
the answers. They also carry out a sample valuation in the light of their,
discussions. The sample valuation of scripts by each of them is reviewed,
by the Head Examiner and variations in assigning marks are further,
"discussed. After such discussions, a consensus is arrived at in regard to the",
"norms of valuation to be adopted. On that basis, the examiners are",
"required to complete the valuation of answer scripts. But this by itself,",
does not bring about uniformity of assessment inter se the examiners. In,
"spite of the norms agreed, many examiners tend to deviate from the",
"expected or agreed norms, as their caution is overtaken by their propensity",
for strictness or liberality or eroticism or carelessness during the course of,
"valuation. Therefore, certain further corrective steps become necessary.",
"(iii) After the valuation is completed by the examiners, the Head Examiner",
conducts a random sample survey of the corrected answer scripts to verify,
whether the norms evolved in the meetings of examiner have actually been,
followed by the examiners………..,
(iv) After ascertaining or assessing the standards adopted by each,
"examiner, the Head Examiner may confirm the award of marks without",
"any change if the examiner has followed the agreed norms, or suggest",
"upward or downward moderation, the quantum of moderation varying",
according to the degree of liberality or strictness in marking. In regard to,
"the top level answer books revalued by the Head Examiner, his award of",
marks is accepted as final. As regards the other answer books below the,
"top level, to achieve maximum measure of uniformity inter se the",
"examiners, the awards are moderated as per the recommendations made by",
the Head Examiner.,
(v) If in the opinion of the Head Examiner there has been erratic or,
"careless marking by any examiner, for which it is not feasible to have any",
"standard moderation, the answer scripts valued by such examiner are",
revalued either by the Head Examiner or any other Examiner who is found,
to have followed the agreed norms.,
(vi) Where the number of candidates is very large and the examiners are,
"numerous, it may be difficult for one Head Examiner to assess the work of",
"all the Examiners. In such a situation, one more level of Examiners is",
"introduced. For every ten or twenty examiners, there will be a Head",
Examiner who checks the random samples as above. The work of the,
"Head Examiners, in turn, is checked by a Chief Examiner to ensure proper",
results.,
The above procedure of 'moderation' would bring in considerable,
uniformity and consistency. It should be noted that absolute uniformity or,
consistency in valuation is impossible to achieve where there are several,
examiners and the effort is only to achieve maximum uniformity.”,
25,
"Each examining body will have its own standards of ‘moderation’, drawn up",
with reference to its own experiences and the nature and scope of the,
examinations conducted by it. ICAI shall have to disclose the said standards,
"of moderation followed by it, if it has drawn up the same, in response to part",
(ii) of first respondent’s query (13).,
"23. In its communication dated 22.2.2008, ICAI informed the first",
"respondent that under Regulation 39(2), its Examining Committee had the",
authority to revise the marks based on the findings of the Head Examiners,
and any incidental information in its knowledge. This answers part (iv) of,
query (13) as to the authority which decides the exercise of the discretion to,
make the revision under Regulation 39(2).,
"24. In regard to parts (i), (iii) and (v) of query (13), ICAI submits that",
such data is not maintained. Reliance is placed upon the following,
observations of this Court in Aditya Bandopadhyay:,
“The RTI Act provides access to all information that is available and,
existing. This is clear from a combined reading of section 3 and the,
definitions of ‘information’ and ‘right to information’ under clauses (f),
and (j) of section 2 of the Act. If a public authority has any information in,
"the form of data or analysed data, or abstracts, or statistics, an applicant",
"may access such information, subject to the exemptions in section 8 of the",
Act. But where the information sought is not a part of the record of a,
"public authority, and where such information is not required to be",
maintained under any law or the rules or regulations of the public,
"authority, the Act does not cast an obligation upon the public authority, to",
26,
collect or collate such non-available information and then furnish it to an,
applicant.”,
"As the information sought under parts (i), (iii) and (v) of query (13) are not",
maintained and is not available in the form of data with the appellant in its,
"records, ICAI is not bound to furnish the same.",
General submissions of ICAI,
25. The learned counsel of ICAI submitted that there are several hundred,
examining bodies in the country. With the aspirations of young citizens to,
secure seats in institutions of higher learning or to qualify for certain,
"professions or to secure jobs, more and more persons participate in more and",
more examinations. It is quite common for an examining body to conduct,
examinations for lakhs of candidates that too more than once per year.,
"Conducting examinations involving preparing the question papers,",
"conducting the examinations at various centres all over the country, getting",
"the answer scripts evaluated and declaring results, is an immense task for",
"examining bodies, to be completed within fixed time schedules. If the",
examining bodies are required to frequently furnish various kinds of,
"information as sought in this case to several applicants, it will add an",
enormous work load and their existing staff will not be able to cope up with,
27,
the additional work involved in furnishing information under the RTI Act. It,
was submitted by ICAI that it conducts several examinations every year,
"where more than four lakhs candidates participate; that out of them, about",
"15-16% are successful, which means that more than three and half lakhs of",
candidates are unsuccessful; that if even one percent at those unsuccessful,
candidates feel dissatisfied with the results and seek all types of unrelated,
"information, the working of ICAI will come to a standstill. It was submitted",
"that for every meaningful user of RTI Act, there are several abusers who will",
attempt to disrupt the functioning of the examining bodies by seeking huge,
quantity of information. ICAI submits that the application by the first,
"respondent is a classic case of improper use of the Act, where a candidate",
who has failed in an examination and who does not even choose to take the,
subsequent examination has been engaging ICAI in a prolonged litigation by,
seeking a bundle of information none of which is relevant to decide whether,
"his answer script was properly evaluated, nor have any bearing on",
accountability or reducing corruption. ICAI submits that there should be an,
effective control and screening of applications for information by the,
competent authorities under the Act. We do not agree that first respondent,
had indulged in improper use of RTI Act. His application is intended to,
bring about transparency and accountability in the functioning of ICAI. How,
28,
far he is entitled to the information is a different issue. Examining bodies,
like ICAI should change their old mindsets and tune them to the new regime,
of disclosure of maximum information. Public authorities should realize that,
"in an era of transparency, previous practices of unwarranted secrecy have no",
longer a place. Accountability and prevention of corruption is possible only,
through transparency. Attaining transparency no doubt would involve,
additional work with reference to maintaining records and furnishing,
information. Parliament has enacted the RTI Act providing access to,
"information, after great debate and deliberations by the Civil Society and the",
"Parliament. In its wisdom, the Parliament has chosen to exempt only certain",
categories of information from disclosure and certain organizations from the,
"applicability of the Act. As the examining bodies have not been exempted,",
and as the examination processes of examining bodies have not been,
"exempted, the examining bodies will have to gear themselves to comply",
with the provisions of the RTI Act. Additional workload is not a defence. If,
"there are practical insurmountable difficulties, it is open to the examining",
bodies to bring them to the notice of the government for consideration so,
that any changes to the Act can be deliberated upon. Be that as it may.,
26. We however agree that it is necessary to make a distinction in regard,
"to information intended to bring transparency, to improve accountability and",
29,
"to reduce corruption, falling under section 4(1)(b) and (c) and other",
information which may not have a bearing on accountability or reducing,
corruption. The competent authorities under the RTI Act will have to,
"maintain a proper balance so that while achieving transparency, the demand",
for information does not reach unmanageable proportions affecting other,
"public interests, which include efficient operation of public authorities and",
"government, preservation of confidentiality of sensitive information and",
optimum use of limited fiscal resources.,
"27. In view of the above, this appeal is allowed in part and the order of the",
"High Court is set aside and the order of the CIC is restored, subject to one",
"modification in regard to query (13): ICAI to disclose to the first respondent,",
"the standard criteria, if any, relating to moderation, employed by it, for the",
purpose of making revisions under Regulation 39(2).,
.………………………J.,
(R V Raveendran),
New Delhi; ……………………….J.,
"September 2, 2011. (A K Patnaik)",
\224Ú REPORTABLE,
IN THE SUPREME COURT OF INDIA,
CIVIL ORIGINAL JURISDICTION,
TRANSFERRED CASE (CIVIL) NO. 91 OF 2015,
(Arising out of Transfer Petition (Civil) No. 707 of 2012),
Reserve Bank of India ........Petitioner(s),
versus,
Jayantilal N. Mistry .....Respondent(s),
With,
TRANSFERRED CASE (CIVIL) NO. 92 OF 2015,
(Arising out of Transfer Petition (Civil) No. 708 of 2012),
I.C.I.C.I Bank Limited ........ Petitioner(s),
versus,
S.S. Vohra and others .........Respondent(s),
TRANSFERRED CASE (CIVIL) NO. 93 OF 2015,
(Arising out of Transfer Petition (Civil) No. 711 of 2012),
National Bank for Agriculture,
and Rural Development .........Petitioner(s),
versus,
Kishan Lal Mittal .........Respondent(s),
TRANSFERRED CASE (CIVIL) NO. 94 OF 2015,
(Arising out of Transfer Petition (Civil) No. 712 of 2012),
Reserve Bank of India ..........Petitioner(s),
versus,
P.P. Kapoor ..........Respondent(s),
Signature Not Verified,
Digitally signed by,
Sanjay Kumar,
Date: 2015.12.16,
13:23:34 IST,
Reason:,
1,
TRANSFERRED CASE (CIVIL) NO. 95 OF 2015,
(Arising out of Transfer Petition (Civil) No. 713 of 2012),
Reserve Bank of India ..........Petitioner(s),
versus,
Subhas Chandra Agrawal ..........Respondent(s),
TRANSFERRED CASE (CIVIL) NO. 96 OF 2015,
(Arising out of Transfer Petition (Civil) No. 715 of 2012),
Reserve Bank of India ..........Petitioner(s),
versus,
Raja M. Shanmugam ..........Respondent(s),
TRANSFERRED CASE (CIVIL) NO. 97 OF 2015,
(Arising out of Transfer Petition (Civil) No. 716 of 2012),
National Bank for Agriculture,
and Rural Development ..........Petitioner(s),
versus,
Sanjay Sitaram Kurhade ..........Respondent(s),
TRANSFERRED CASE (CIVIL) NO. 98 OF 2015,
(Arising out of Transfer Petition (Civil) No. 717 of 2012),
Reserve Bank of India ..........Petitioner(s),
versus,
K.P. Muralidharan Nair ...........Respondent(s),
TRANSFERRED CASE (CIVIL) NO. 99 OF 2015,
(Arising out of Transfer Petition (Civil) No. 718 of 2012),
Reserve Bank of India ..........Petitioner(s),
versus,
Ashwini Dixit ...........Respondent(s),
2,
TRANSFERRED CASE (CIVIL) NO. 100 OF 2015,
(Arising out of Transfer Petition (Civil) No. 709 of 2012),
Reserve Bank of India .........Petitioner(s),
versus,
A.Venugopal and another .........Respondent(s),
TRANSFERRED CASE (CIVIL) NO. 101 OF 2015,
(Arising out of Transfer Petition (Civil) No. 714 of 2012),
Reserve Bank of India .........Petitioner(s),
versus,
Dr. Mohan K. Patil and others .........Respondent(s),
JUDGMENT,
"M.Y. EQBAL, J.",
The main issue that arises for our consideration in these,
transferred cases is as to whether all the information sought,
"for under the Right to Information Act, 2005 can be denied by",
the Reserve Bank of India and other Banks to the public at,
"large on the ground of economic interest, commercial",
"confidence, fiduciary relationship with other Bank on the one",
hand and the public interest on the other. If the answer to,
"above question is in negative, then upto what extent the",
information can be provided under the 2005 Act.,
3,
2. It has been contended by the RBI that it carries out,
inspections of banks and financial institutions on regular,
basis and the inspection reports prepared by it contain a wide,
range of information that is collected in a fiduciary capacity.,
The facts in brief of the Transfer Case No.91 of 2015 are that,
"during May-June, 2010 the statutory inspection of Makarpura",
Industrial Estate Cooperative Bank Ltd. was conducted by RBI,
"under the Banking Regulation Act, 1949. Thereafter, in",
"October 2010, the Respondent sought following information",
"from the CPIO of RBI under the Act of 2005, reply to which is",
tabulated hereunder:,
Sr. No. Information sought Reply,
1. Procedure Rules and RBI is conducting inspections,
Regulations of Inspection under Section 35 of the B.R. Act,
being carried out on 1949 (AACS) at prescribed,
Co-operative Banks intervals.,
2. Last RBI investigation and The Information sought is,
audit report carried out by maintained by the bank in a,
Shri Santosh Kumar during fiduciary capacity and was,
"23rd April, 2010 to 6th May, obtained by Reserve Bank during",
2010 sent to Registrar of the the course of inspection of the,
Cooperative of the Gujarat bank and hence cannot be given to,
"State, Gandhinagar on the outsiders. Moreover, disclosure",
Makarpura Industrial Estate of such information may harm the,
Co-op Bank Ltd Reg. No.2808 interest of the bank & banking,
system. Such information is also,
exempt from disclosure under,
"Section 8(1) (a) & (e) of the RTI Act,",
4,
2005.,
3. Last 20 years inspection Same as at (2) above,
(carried out with name of,
inspector) report on above,
bank and action taken report.,
4. (i) Reports on all co-operative (i) Same as at (2) above,
banks gone on liquidation,
(ii) This information is not,
(ii) action taken against all available with the,
Directors and Managers for Department,
recovery of public funds and,
powers utilized by RBI and,
analysis and procedure,
adopted.,
5. Name of remaining No specific information has,
co-operative banks under been sought,
your observations against,
irregularities and action,
taken reports,
6. Period required to take No specific information has,
action and implementations been sought,
"3. On 30.3.2011, the First Appellate Authority disposed of",
the appeal of the respondent agreeing with the reply given by,
"CPIO in query No.2, 3 & first part of 4, relying on the decision",
of the Full Bench of CIC passed in the case of Ravin,
Ranchochodlal Patel and another vs. Reserve Bank of India.,
"Thereafter, in the second appeal preferred by the aggrieved",
"respondent, the Central Information Commission by the",
"impugned order dated 01.11.2011, directed RBI to provide",
5,
information as per records to the Respondent in relation to,
queries Nos.2 to 6 before 30.11.2011. Aggrieved by the,
"decision of the Central Information Commission (CIC),",
petitioner RBI moved the Delhi High Court by way of a Writ,
Petition inter alia praying for quashing of the aforesaid order of,
"the CIC. The High Court, while issuing notice, stayed the",
operation of the aforesaid order.,
"4. Similarly, in Transfer Case No. 92 of 2015, the",
Respondent sought following information from the CPIO of RBI,
"under the Act of 2005, reply to which is tabulated hereunder:",
Sr. Information sought Reply,
No.,
1. The Hon’ble FM made a In the absence of the specific,
"written statement on the Floor details, we are not able to provide",
of the House which inter alia any information.,
must have been made after,
verifying the records from RBI,
and the Bank must have the,
copy of the facts as reported,
by FM. Please supply copy of,
the note sent to FM,
2. The Hon’ble FM made a We do not have this information.,
statement that some of the,
"banks like SBI, ICICI Bank",
"Ltd, Bank of Baroda, Dena",
"Bank, HSBC Bank etc. were",
issued letter of displeasure for,
violating FEMA guidelines for,
opening of accounts where as,
some other banks were even,
6,
fined Rupees one crore for,
such violations. Please give,
me the names of the banks,
with details of violations,
committed by them.,
3. ‘Advisory Note’ issued to ICICI An Advisory Letter had been issued,
"Bank for account opened by to the bank in December, 2007 for",
some fraudsters at its Patna the bank’s Patna branch having,
Branch Information sought failed to (a) comply with the RBI,
"about ""exact nature of guidelines on customer",
"irregularities committed by the identification, opening/operating",
"bank under ""FEMA"". Also give customer accounts, (b) the bank",
list of other illegalities not having followed the normal,
committed by IBL and other banker’s prudence while opening,
details of offences committed an account in question.,
by IBL through various,
branches in India and abroad As regards the list of supervisory,
"along with action taken by the action taken by us, it may be",
Regulator including the names stated that the query is too general,
"and designations of his and not specific. Further, we may",
"officials branch name, type of state that Supervisory actions",
offence committed etc. The taken were based on the scrutiny,
exact nature of offences conducted under Section 35 of the,
committed by Patna Branch of Banking Regulation (BR) Act. The,
the bank and other branches information in the scrutiny report,
of the bank and names of his is held in fiduciary capacity and,
"officials involved, type of the disclosure of which can affect",
offence committed by them the economic interest of the,
and punishment awarded by country and also affect the,
"concerned authority, names commercial confidence of the",
and designation of the bank. And such information is,
"designated authority, who also exempt from disclosure under",
investigated the above case Section 8(1)(a)(d) & (e) of the RTI,
"and his findings and Act (extracts enclosed). We,",
"punishment awarded."" therefore, are unable to accede to",
your request.,
"4. Exact nature of irregularities In this regard, self explicit print",
committed by ICICI Bank in out taken from the website of,
Hong Kong Securities and Futures,
"Commission, Hong Kong is",
enclosed.,
5. ICICI Bank’s Moscow Branch We do not have the information.,
involved in money laundering,
act.,
6. Imposition of fine on ICICI We do not have any information to,
7,
Bank under Section 13 of the furnish in this regard.,
PMLA for loss of documents in,
floods .,
7. Copy of the Warning or As regards your request for,
‘Advisory Note’ issued twice copies/details of advisory letters to,
issued to the bank in the last,
"ICICI Bank, we may state that",
two years and reasonssuch information is exempt from,
recorded therein. disclosure under Section 8(1)(a)(d),
and (e) of the RTI Act. The,
Name and designation of the scrutiny of records of the ICICI,
authority who conducted this Bank is conducted by our,
check and his decision to Department of Banking,
issue an advisory note only Supervision (DBS). The Chief,
instead of penalties to be General Manager-in charge of the,
"imposed under the Act. DBS, Centre Office Reserve Bank",
of India is Shri S. Karuppasamy.,
"5. In this matter, it has been alleged by the petitioner RBI",
that the respondent is aggrieved on account of his application,
form for three-in-one account with the Bank and ICICI,
"Securities Limited (ISEC) lost in the floods in July, 2005 and",
"because of non-submission of required documents, the",
"Trading account with ISEC was suspended, for which",
"respondent approached the District Consumer Forum, which",
rejected the respondent’s allegations of tempering of records,
and dismissed the complaint of the respondent. His appeal,
was also dismissed by the State Commission. Respondent,
then moved an application under the Act of 2005 pertaining to,
8,
the suspension of operation of his said trading account. As,
the consumer complaint as well as the abovementioned,
"application did not yield any result for the respondent, he",
"made an application under the Act before the CPIO, SEBI,",
"appeal to which went up to the CIC, the Division Bench of",
which disposed of his appeal upholding the decision of the,
"CPIO and the Appellate Authority of SEBI. Thereafter, in",
"August 2009, respondent once again made the present",
application under the Act seeking aforesaid information.,
"Being aggrieved by the order of the appellate authority,",
"respondent moved second appeal before the CIC, who by the",
impugned order directed the CPIO of RBI to furnish,
information pertaining to Advisory Notes as requested by the,
"respondent within 15 working days. Hence, RBI approached",
Bombay High Court by way of writ petition.,
"6. In Transfer Case No. 93 of 2015, the Respondent sought",
following information from the CPIO of National Bank for,
"Agriculture and Rural Development under the Act of 2005,",
reply to which is tabulated hereunder:-,
9,
Sl. Information Sought Reply,
No.,
1. Copies of inspection reports of Furnishing of information is,
Apex Co-operative Banks of exempt under Section 8(1)(a) of the,
various States/Mumbai DCCB RTI Act.,
from 2005 till date,
2. Copies of all correspondences Different Departments in NABARD,
with Maharashtra State deal with various issues related to,
Govt./RBI/any other agency of MSCB. The query is general in,
State/Central Co-operative Bank nature. Applicant may please be,
"from January, 2010 till date. specific in query/information",
sought.,
3. Provide confirmed/draft minutes Furnishing of information is,
of meetings of Governing exempt under Sec. 8(1)(d) of the,
Board/Board of RTI Act.,
Directors/Committee of Directors,
"of NABARD from April, 2007 till",
date,
4. Provide information on Compliance available on the,
compliance of Section 4 of RTI website of NABARD i.e.,
"Act, 2005 by NABARD www.nabard.org",
5. Information may be provided on a -,
CD,
7. The First Appellate Authority concurred with the CPIO,
and held that inspection report cannot be supplied in terms of,
Section 8(1)(a) of the RTI Act. The Respondent filed Second,
"Appeal before the Central Information Commission, which was",
allowed. The RBI filed writ petition before the High Court,
challenging the order of the CIC dated 14.11.2011 on identical,
10,
issue and the High Court stayed the operation of the order of,
the CIC.,
"8. In Transfer Case No. 94 of 2015, the Respondent sought",
following information from the CPIO of RBI under the Act of,
"2005, reply to which is tabulated hereunder:",
Sl. Information Sought Reply,
No.,
1. As mentioned at 2(a) what is Pursuant to the then Finance,
RBI doing about uploading the Minister’s Budget Speech made in,
"entire list of Bank defaulters Parliament on 28th February, 1994,",
on the bank’s website? When in order to alert the banks and FIs,
will it be done? Why is it not and put them on guard against the,
done? defaulters to other lending,
institutions. RBI has put in place,
scheme to collect details about,
borrowers of banks and FIs with,
outstanding aggregating Rs. 1 crore,
and above which are classified as,
‘Doubtful’ or ‘Loss or where suits,
"are filed, as on 31st March and 30th",
September each year. In February,
"1999, Reserve Bank of India had",
also introduced a scheme for,
collection and dissemination of,
information on cases of willful,
default of borrowers with,
outstanding balance of Rs. 25 lakh,
"and above. At present, RBI",
disseminates list of above said non,
suit filed ‘doubtful’ and ‘loss’,
borrowed accounts of Rs.1 crore,
and above on half-yearly basis (i.e.,
as on March 31 and September 30),
to banks and FIs. for their,
confidential use. The list of,
non-suit filed accounts of willful,
defaulters of Rs. 25 lakh and above,
is also disseminated on quarterly,
11,
basis to banks and FIs for their,
confidential use. Section 45 E of,
the Reserve Bank of India Act 1934,
prohibits the Reserve Bank from,
disclosing ‘credit information’,
except in the manner provided,
therein.,
"(iii) However, Banks and FIs",
"were advised on October 1, 2002 to",
furnish information in respect of,
suit-filed accounts between Rs. 1,
lakh and Rs. 1 crore from the,
"period ended March, 2002 in a",
phased manner to CIBIL only.,
CIBIL is placing the list of,
defaulters (suit filed accounts) of,
Rs. 1 crore and above and list of,
willful defaulters (suit filed,
accounts) of Rs. 25 lakh and above,
"as on March 31, 2003 and onwards",
on its website (www.cibil.com),
9. The Central Information Commission heard the parties,
through video conferencing. The CIC directed the CPIO of the,
petitioner to provide information as per the records to the,
Respondent in relation to query Nos. 2(b) and 2(c) before,
10.12.2011. The Commission has also directed the Governor,
RBI to display this information on its website before,
"31.12.2011, in fulfillment of its obligations under Section 4(1)",
"(b) (xvii) of the Right to Information Act, 2005 and to update it",
each year.,
12,
"10. In Transfer Case No.95 of 2015, following information",
was sought and reply to it is tabulated hereunder:,
Sl. Information Sought Reply,
No.,
1. Complete and detailed information As the violations of which,
including related the banks were issued,
documents/correspondence/file Show Cause Notices and,
noting etc of RBI on imposing fines on subsequently imposed,
some banks for violating rules like also penalties and based on the,
referred in enclosed news clipping findings of the Annual,
Financial Inspection (AFI) of,
"2. Complete list of banks which were the banks, and the",
issued show cause notices before fine information is received by,
"was imposed as also referred in us in a fiduciary capacity,",
enclosed news clipping mentioning the disclosure of such,
also default for which show cause information would,
notice was issued to each of such prejudicially affect the,
banks economic interests of the,
State and harm the bank’s,
competitive position. The,
SCNs/findings/reports/,
associated,
correspondences/orders are,
therefore exempt from,
disclosure in terms of the,
provisions of Section 8(1)(a),
"(d) and (e) of the RTI Act,",
2005.,
2. Complete list of banks which were -do-,
issued show cause notices before fine,
was imposed as also referred in,
enclosed news clippings mentioning,
also default for which show cause,
notice was issued to each of such,
banks.,
3. List of banks out of those in query (2) Do,
above where fine was not imposed,
giving details like if their reply was,
satisfactory etc.,
4. List of banks which were ultimately The names of the 19 banks,
found guilty and fines mentioning also and details of penalty,
amount of fine on each of the bank imposed on them are,
13,
and criterion to decide fine on each of furnished in Annex 1.,
the bank Regarding the criterion for,
"deciding the fine, the",
penalties have been,
imposed on these banks for,
contravention of various,
directions and instructions,
such as failure to carry out,
proper due diligence on,
user appropriateness and,
"suitability of products,",
selling derivative products,
to users not having proper,
"risk Management policies,",
not verifying the,
underlying /adequacy of,
underlying and eligible,
limits under past,
"performance route, issued",
by RBI in respect of,
derivative transactions.,
5. Is fine imposed /action taken on some No other bank was,
other banks also other than as penalized other than those,
"mentioned in enclosed news clipping mentioned in the Annex, in",
the context of press release,
No.2010-2011/1555 of,
"April 26, 2011",
"6. If yes please provide details Not Applicable, in view of",
the information provided in,
query No.5,
7. Any other information The query is not specific.,
8. File notings on movement of this RTI Copy of the note is,
petition and on every aspect of this enclosed.,
RTI Petition,
"11. In the Second Appeal, the CIC heard the respondent via",
telephone and the petitioner through video conferencing. As,
14,
"directed by CIC, the petitioner filed written submission. The",
CIC directed the CPIO of the Petitioner to provide complete,
information in relation to queries 1 2 and 3 of the original,
application of the Respondent before 15.12.2011.,
"12. In Transfer Case No. 96 of 2015, the Respondent sought",
following information from the CPIO of RBI under the Act of,
"2005, reply to which is tabulated hereunder:-",
Sl. Information Sought Reply,
No.,
1. Before the Orissa High Court RBI The Information sought by you is,
has filed an affidavit stating that exempted under Section 8(1)(a) & (e),
"the total mark to market losses of RTI Act, which state as under;",
on account of currency,
derivatives is to the tune of more 8(1) notwithstanding anything,
"than Rs. 32,000 crores Please contained in this Act, there shall be",
give bank wise breakup of the no obligation to give any citizen,
MTM Losses,
(a) information disclosure of,
which would prejudicially affect,
the sovereignty and integrity of,
India the security strategic,
scientific or economic interests of,
"the state, relation with foreign",
State or lead to incitement of an,
offence.,
(e) Information available to a,
person in his fiduciary,
relationship unless the competent,
authority is satisfied that larger,
public interest warrants the,
disclosure of such information.,
2. What is the latest figure available Please refer to our response to 1,
with RBI of the amount of losses above.,
suffered by Indian Business,
15,
houses? Please furnish the latest,
figures bank wise and customer,
wise.,
3. Whether the issue of derivative We have no information in this,
losses to Indian exporters was matter.,
discussed in any of the meetings,
of Governor/Deputy Governor or,
senior official of the Reserve,
Bank of India? If so please,
furnish the minutes of the,
meeting where the said issue was,
discussed,
4. Any other Action Taken Reports We have no information in this,
by RBI in this regard. matter.,
13. The CIC allowed the second appeal and directed the CPIO,
FED of the Petitioner to provide complete information in,
"queries 1, 2, 9 and 10 of the original application of the",
"Respondent before 05.01.2012. The CPIO, FED complied with",
"the order of the CIC in so far queries 2, 9 and 10 are",
concerned. The RBI filed writ petition for quashing the order of,
CIC so far as it directs to provide complete information as per,
record on query No.1.,
"14. In Transfer Case No. 97 of 2015, the Respondent sought",
following information from the CPIO of National Bank for,
16,
"Agriculture and Rural Development under the Act of 2005,",
reply to which is tabulated hereunder:-,
Sl. Information Sought Reply,
No.,
1. The report made by NABARD regarding 86 Please refer to your,
N.P.A. Accounts for Rs. 3806.95 crore of application dated 19,
"Maharashtra State Co-operative Bank Ltd. (if April, 2011 seeking",
any information of my application is not information under the,
"available in your Office/Department/ RTI Act, 2005 which",
"Division/Branch, transfer this application to was received by us on",
"the concerned Office/Department/ 06th May, 2011. In",
"Division/Branch and convey me accordingly this connection, we",
as per the provision of Section 6 (3) of Right advise that the,
"to Information Act, 2005. questions put forth by",
you relate to the,
observations made in,
the Inspection Report,
of NABARD pertaining,
to MSCB which are,
confidential in nature.,
Since furnishing the,
information would,
impede the process of,
investigation or,
apprehension or,
prosecution of,
"offenders, disclosure",
of the same is,
exempted under,
Section 8(1)(h) of the,
Act.,
"15. In Transfer Case No. 98 of 2015, the Respondent sought",
following information from the CPIO of RBI under the Act of,
"2005, reply to which is tabulated hereunder:-",
17,
Sl. Information Sought Reply,
No.,
1. What contraventions and violations were The bank was penalized,
made by SCB in respect of RBI instructions along with 18 other,
on derivatives for which RBI has imposed banks for contravention,
penalty of INR 10 lakhs on SCB in exercise of various instructions,
of its powers vested under Section 47(1)(b) issued by the Reserve,
"of Banking Regulation Act, 1949 and as Bank of India in respect",
"stated in the RBI press release dated April of derivatives, such as,",
"26, 2011 issued by Department of failure to carry out due",
Communications RBI diligence in regard to,
"suitability of products,",
selling derivative,
products to users not,
having risk,
management policies,
and not verifying the,
underlying/adequacy of,
underlying and eligible,
limits under past,
performance route. The,
information is also,
available on our,
website under press,
releases.,
2. Please provide us the copies/details of all Complaints are received,
"the complaints filed with RBI against SCB, by Reserve Bank of",
accusing SCB of mis-selling derivative India and as they,
"products, failure to carry out due diligence constitute the third",
"in regard to suitability of products, not party information, the",
verifying the underlying/adequacy of information requested,
underlying and eligible limits under past by you cannot be,
performance and various other disclosed in terms of,
non-compliance of RBI instruction on Section 8(1)(d) of the,
"derivatives. RTI Act, 2005.",
"Also, please provide the above information",
in the following format,
. Date of the complaint,
Name of the complaint,
Subject matter of the complaint,
Brief description of the facts and,
accusations made by the complaint.,
18,
Any other information available with RBI,
with respect to violation/contraventions by,
SCB of RBI instructions on derivatives.,
3. Please provide us the copies of all the The action has been,
written replies/correspondences made by taken against the bank,
SCB with RBI and the recordings of all the based on the findings of,
oral submissions made by SCB to defend the Annual Financial,
and explain the violations/contraventions Inspection (AFI) of the,
made by SCB bank which is,
conducted under the,
provisions of Sec.35 of,
"the BR Act, 1949. The",
findings of the,
inspection are,
confidential in nature,
intended specifically for,
the supervised entities,
and for corrective,
action by them. The,
information is received,
by us in fiduciary,
capacity disclosure of,
which may prejudicially,
affect the economic,
interest of the state.,
As such the,
information cannot be,
disclosed in terms of,
Section 8(1) (a) and (e),
"of the RTI Act, 2005",
4. Please provide us the details/copies of the -do-,
"findings recordings, enquiry reports,",
directive orders file notings and/or any,
information on the investigations conducted,
by RBI against SCB in respect of,
non-compliance by SCB thereby,
establishing violations by SCBV in respect,
of non compliances of RBI instructions on,
derivatives.,
Please also provide the above information,
in the following format.,
. Brief violations/contraventions made by,
SCB,
. In brief SCB replies/defense/explanation,
19,
against each violations/contraventions,
made by it under the show cause notice.,
. RBI investigations/notes/on the SCB,
Replies/defense/explanations for each of,
the violation/contravention made by SCB.,
. RBI remarks/findings with regard to the,
violations/contraventions made by SCB.,
"16. In Transfer Case No. 99 of 2015, the Respondent sought",
following information from the CPIO of RBI under the Act of,
"2005, reply to which is tabulated hereunder:-",
Sl. Information Sought Reply,
No.,
"1. That, what action has the department 1. Enquiry was",
taken against scams/financial carried out against,
irregularities of United Mercantile scams/financial,
Cooperative Bank Ltd as mentioned in the irregularities of United,
enclosed published news. Provide day to Mercantile Cooperative,
day progress report of the action taken. Bank Ltd. as mentioned,
in the enclosed,
published news.,
2. Note/explanation,
has been called for from,
the bank vide our letter,
"dated 8th July, 2011",
regarding errors,
mentioned in enquiry,
report.,
3. The other,
information asked here,
is based on the,
conclusions of,
Inspection Report. We,
would like to state that,
conclusions found,
20,
during inspections are,
confidential and the,
reports are finalized on,
the basis of information,
received from banks. We,
received the information,
from banks in a,
confident capacity.,
"Moreover, disclosure of",
such information may,
cause damage to the,
banking system and,
financial interests of the,
state. Disclosure of,
such type of information,
is exempted under,
Section 8(1)(a) and (e) of,
"RTI Act, 2005.",
2. That permission for opening how many United Mercantile,
extension counters was obtained by United Cooperative Bank Ltd.,
"Mercantile Cooperative Bank Ltd from RBI. was permitted to open 5,",
Provide details of expenditure incurred for extension counters.,
constructing the extension counters. Had,
the bank followed tender system for these The information,
"constructions, if yes, provide details of regarding expenditure",
concerned tenders. incurred on,
construction of these,
extension counters and,
tenders are not available,
with Reserve Bank of,
India.,
"17. In Transfer Case No. 100 of 2015, the Respondent sought",
following information from the CPIO of RBI under the Act of,
"2005, reply to which is tabulated hereunder:-",
21,
Sl. Information Sought Reply,
No.,
1. Under which Grade The George Town The classification of,
"Co-operative Bank Ltd., Chennai, has been banks into various",
categorised as on 31.12.2006? grades are done on the,
basis of inspection,
findings which is based,
on information/,
documents obtained in,
a fiduciary capacity and,
cannot be disclosed to,
outsiders. It is also,
exempted under Section,
8(1)(e) of right to,
"Information Act, 2005.",
"18. The Appellate Authority observed that the CPIO, UBD has",
replied that the classification of banks into various grades is,
done on the basis of findings recorded in inspection which are,
based on information/documents obtained in a fiduciary,
"capacity and cannot be disclosed to outsiders. The CPIO, UBD",
has stated that the same is exempted under Section 8(1)(e) of,
RTI Act. Apart from the fact that information sought by the,
"appellant is sensitive and cannot be disclosed, it could also",
harm the competitive position of the co-operative bank.,
"Therefore, exemption from disclosure of the Information is",
available under Section 8(1)(d) of the RTI Act.,
22,
"19. In Transfer Case No. 101 of 2015, with regard to",
"Deendayal Nagri Shakari Bank Ltd, District Beed, the",
Respondent sought following information from the CPIO of RBI,
"under the Act of 2005, reply to which is tabulated hereunder:-",
Sl. Information Sought Reply,
No.,
1. Copies of complaints received by RBI Disclosure of,
"against illegal working of the said bank, information regarding",
including violations of the Standing complaints received,
Orders of RBI as well as the provisions from third parties,
"under Section 295 of the Companies Act, would harm the",
1956. competitive position of a,
third party. Further,
such information is,
maintained in a,
fiduciary capacity and,
is exempted from,
disclosure under,
Sections 8(1)(d) and (e),
of the RTI Act.,
2. Action initiated by RBI against the said (a) A penalty of Rs. 1,
"bank, including all correspondence lakh was imposed on",
between RBI and the said bank officials. Deendayal Nagri,
Sahakari Bank Ltd. for,
violation of directives on,
loans to directors/their,
relatives/concerns in,
which they are,
interested. The bank,
paid the penalty on,
08.10.2010.,
(b) As regards,
correspondence,
"between RBI and the,",
"co-operative bank, it is",
advised that such,
information is,
maintained by RBI in,
fiduciary capacity and,
23,
hence cannot be given,
to outsiders. Moreover,
disclosure of such,
information may harm,
the interest of the bank,
and banking system.,
Such information is,
exempt from disclosure,
under Section 8(1)(a),
and (e) of the RTI Act.,
"3. Finding of the enquiry made by RBI, Such information is",
actions proposed and taken against the maintained by the bank,
"bank and its officials-official notings, in a fiduciary capacity",
"decisions, and final orders passed and and is obtained by RBI",
issued. during the course of,
inspection of the bank,
and hence cannot be,
given to outsiders. The,
disclosure of such,
information would,
harm the competitive,
position of a third,
party. Such,
"information is,",
"therefore, exempted",
from disclosure under,
Section 8(1)(d) and (e),
of the RTI Act.,
As regards action taken,
"against the bank, are",
reply at S. No.2 (a),
above.,
4. Confidential letters received by RBI from See reply at S. NO.2 (a),
the Executive Director of Vaishnavi above.,
Hatcheries Pvt. Ltd. complaining about,
the illegal working and pressure policies of,
the bank and its chairman for misusing,
the authority of digital signature for,
sanction of the backdated resignations of,
the chairman of the bank and few other,
directors of the companies details of,
action taken by RBI on that.,
24,
20. The First Appellate Authority observed that the CPIO had,
furnished the information available on queries 2 and 4.,
Further information sought in queries 1 and 3 was exempted,
under Section 8(1)(a)(d) and (e) of the RTI Act.,
"21. Various transfer petitions were, therefore, filed seeking",
transfer of the writ petitions pending before different High,
"Courts. On 30.5.2015, while allowing the transfer petitions",
filed by Reserve Bank of India seeking transfer of various writ,
"petitions filed by it in the High Courts of Delhi and Bombay,",
this Court passed the following orders:,
"""Notice is served upon the substantial number of",
respondents. Learned counsel for the respondents,
"have no objection if Writ Petition Nos. 8400 of 2011,",
"8605 of 2011, 8693 of 2011, 8583 of 2011, 32 of 2012,",
"685 of 2012, 263 of 2012 and 1976 of 2012 pending in",
the High Court of Delhi at New Delhi and Writ Petition,
"(L) Nos. 2556 of 2011, 2798 of 2011 and 4897 of 2011",
pending in the High Court of Bombay are transferred,
"to this Court and be heard together. In the meanwhile,",
the steps may be taken to serve upon the unserved,
respondents.,
"Accordingly, the transfer petitions are allowed and the",
above mentioned writ petitions are withdrawn to this,
Court. The High Court of Delhi and the High Court of,
Bombay are directed to remit the entire record of the,
"said writ petitions to this Court within four weeks.""",
25,
"22. Mr. T.R. Andhyarujina, learned senior counsel appearing",
"for the petitioner-Reserve Bank of India, assailed the",
impugned orders passed by the Central Information,
Commissioner as illegal and without jurisdiction. Learned,
Counsel referred various provisions of The Reserve Bank of,
"India Act, 1934; The Banking Regulation Act, 1949 and The",
"Credit Information Companies (Regulation) Act, 2005 and",
made the following submissions:-,
I) The Reserve Bank of India being the statutory,
authority has been constituted under the Reserve Bank of,
"India Act, 1934 for the purpose of regulating and",
controlling the money supply in the country. It also acts as,
statutory banker with the Government of India and State,
"Governments and manages their public debts. In addition,",
it regulates and supervises Commercial Banks and,
Cooperative Banks in the country. The RBI exercises,
"control over the volume of credit, the rate of interest",
chargeable on loan and advances and deposits in order to,
ensure the economic stability. The RBI is also vested with,
"the powers to determine ""Banking Policy"" in the interest of",
"banking system, monetary stability and sound economic",
growth.,
The RBI in exercise of powers of powers conferred under,
"Section 35 of the Banking Regulation Act, 1949 conducts",
inspection of the banks in the country.,
II) The RBI in its capacity as the regulator and,
supervisor of the banking system of the country access to,
various information collected and kept by the banks. The,
inspecting team and the officers carry out inspections of,
different banks and much of the information accessed by,
the inspecting officers of RBI would be confidential.,
"Referring Section 28 of the Banking Regulation Act, it was",
submitted that the RBI in the public interest may publish,
26,
"the information obtained by it, in a consolidated form but",
not otherwise.,
III) The role of RBI is to safeguard the economic and,
financial stability of the country and it has large contingent,
of expert advisors relating to matters deciding the economy,
of the entire country and nobody can doubt the bona fide of,
"the bank. In this connection, learned counsel referred the",
decision of this Court in the case of Peerless General,
Finance and Investment Co. Limited and Another Vs.,
"Reserve Bank of India, 1992 Vol. 2 SCC 343.",
IV) Referring the decision in the case of B.,
Suryanarayana Vs. N. 1453 The Kolluru Parvathi,
"Co-Op. Bank Ltd., 1986 AIR (AP) 244, learned counsel",
submitted that the Court will be highly chary to enter into,
and interfere with the decision of Reserve Bank of India.,
Learned Counsel also referred to the decision in the case of,
Peerless General Finance and Investment Co. Limited,
"and Another Vs. Reserve Bank of India, 1992 Vol. 2 SCC",
343 and contended that Courts are not to interfere with the,
economic policy which is a function of the experts.,
V) That the RBI is vested with the responsibility of,
regulation and supervision of the banking system. As part,
"of its supervisory role, RBI supervises and monitors the",
banks under its jurisdiction through on-site inspection,
conducted on annual basis under the statutory powers,
derived by it under section 35 of the Banking Regulation,
"Act 1949, off-site returns on key financial parameters and",
engaging banks in dialogue through periodical meetings.,
RBI may take supervisory actions where warranted for,
violations of its guidelines/directives. The supervisory,
"actions would depend on the seriousness of the offence,",
systemic implications and may range from imposition of,
"penalty, to issue of strictures or letters of warning. While",
RBI recognizes and promotes enhanced transparency in,
"banks disclosures to the public, as transparency",
"strengthens market discipline, a bank may not be able to",
disclose all data that may be relevant to assess its risk,
"profile, due to the inherent need to preserve confidentially",
"in relation to its customers. In this light, while mandatory",
disclosures include certain prudential parameters such as,
"capital adequacy, level of Non Performing Assets etc., the",
supervisors themselves may not disclose all or some,
"information obtained on-site or off-site. In some countries,",
"wherever there are supervisory concerns, ""prompt corrective",
"action"" programmes are normally put in place, which may",
or may not be publicly disclosed. Circumspection in,
disclosures by the supervisors arises from the potential,
"market reaction that such disclosure might trigger, which",
27,
"may not be desirable. Thus, in any policy of transparency,",
there is a need to build processes which ensure that the,
benefits of supervisory disclosure are appropriately weighed,
"against the risk to stakeholders, such as depositors.",
"VI) As per the RBI policy, the reports of the annual",
"financial inspection, scrutiny of all banks/ financial",
institutions are confidential document cannot be disclosed.,
"As a matter of fact, the annual financial inspection/",
scrutiny report reflect the supervisor’s critical assessment,
of banks and financial institutions and their functions.,
Disclosure of these scrutiny and information would create,
misunderstanding/ misinterpretation in the minds of the,
"public. That apart, this may prove significantly counter",
productive. Learned counsel submitted that the disclosure,
of information sought for by the applicant would not serve,
the public interest as it will give adverse impact in public,
confidence on the bank. This has serious implication for,
financial stability which rests on public confidence. This,
will also adversely affect the economic interest of the State,
and would not serve the larger public interest.,
23. The specific stand of petitioner Reserve Bank of India is,
that the information sought for is exempted under Section 8(1),
"(a), (d) and (e) of the Right to Information Act, 2005. As the",
"regulator and supervisor of the banking system, the RBI has",
discretion in the disclosure of such information in public,
interest.,
"24. Mr. Andhyarujina, learned senior counsel, referred",
various decisions to the High Court and submitted that the,
disclosure of information would prejudicially affect the,
"economic interest of the State. Further, if the information",
28,
sought for is sensitive from the point of adverse market,
reaction leading to systematic crisis for financial stability.,
25. Learned senior counsel put heavy reliance on the Full,
Bench decision of the Central Information Commissioner and,
"submitted that while passing the impugned order, the Central",
Information Commissioner completely overlooked the Full,
Bench decision and ignored the same. According to the,
"learned counsel, the Bench, which passed the impugned",
"order, is bound to follow the Full Bench decision. The",
Commission also erred in holding that the Full Bench decision,
is per incuriam as the Full Bench has not considered the,
statutory provisions of Section 8 (2) of the Right to Information,
"Act, 2005.",
26. Learned senior counsel also submitted that the,
Commission erred in holding that even if the information,
"sought for is exempted under Section 8(1) (a), (d) or (e) of the",
"Right to Information Act, Section 8(2) of the RTI Act would",
mandate the disclosure of the information.,
29,
27. Learned senior counsel further submitted that the basic,
"question of law is whether the Right to Information Act, 2005",
overrides various provisions of special statutes which confer,
confidentiality in the information obtained by the RBI.; If the,
"Respondents are right in their contention, these statutory",
"provisions of confidentiality in the Banking Regulation Act,",
"1949, the Reserve Bank of India Act, 1934 and the Credit",
"Information Companies (Regulation) Act, 2005 would be",
"repealed or overruled by the Right to Information Act, 2005.",
"28. Under the Banking Regulation Act, 1949, the Reserve",
Bank of India has a right to obtain information from the banks,
under Section 27. These information can only be in its,
discretion published in such consolidated form as RBI deems,
fit. Likewise under Section 34A production of documents of,
confidential nature cannot be compelled. Under sub-section,
"(5) of Section 35, the Reserve Bank of India may carry out",
inspection of any bank but its report can only be disclosed if,
the Central Government orders the publishing of the report of,
the Reserve Bank of India when it appears necessary.,
30,
"29. Under Section 45E of the Reserve Bank of India Act,",
"1934, disclosure of any information relating to credit",
information submitted by banking company is confidential,
and under Section 45E(3) notwithstanding anything contained,
"in any law no court, tribunal or authority can compel the",
Reserve Bank of India to give information relating to credit,
information etc.,
30. Under Section 17(4) of the Credit Information Companies,
"(Regulation) Act, 2005, credit information received by the",
credit information company cannot be disclosed to any person.,
"Under Section 20, the credit information company has to",
adopt privacy principles and under Section 22 there cannot be,
unauthorized access to credit information.,
31. It was further contended that the Credit Information,
"Companies Act, 2005 was brought into force after the Right to",
"Information act, 2005 w.e.f. 14.12.2006. It is significant to",
"note that Section 28 of Banking Regulation Act, 1949 was",
amended by the Credit Information Companies (Regulation),
"Act, 2005. This is a clear indication that the Right to",
31,
"Information Act, 2005 cannot override credit information",
sought by any person in contradiction to the statutory,
provisions for confidentiality.,
32. This is in addition to other statutory provisions of privacy,
"in Section 44 of State Bank of India Act, 1955, Section 52,",
"State Bank of India (Subsidiary Banks) Act, 1959, Section 13",
of the Banking Companies (Acquisition & Transfer of,
"Undertakings) Act, 1970.",
"33. The Right to Information Act, 2005 is a general provision",
which cannot override specific provisions relating to,
confidentiality in earlier legislation in accordance with the,
principle that where there are general words in a later statute,
it cannot be held that the earlier statutes are repealed altered,
or discarded.,
34. Learned counsel submitted that Section 22 of the Right,
"to Information Act, 2005 cannot have the effect of nullifying",
and repealing earlier statutes in relation to confidentiality.,
This has been well settled by this Court in,
32,
a) Raghunath vs. state of Karnataka 1992(1) SCC,
335 at p.348 pages 112 and 114,
"b) ICICI Bank vs. SIDCO Leather etc., 2006(10)",
"SCC 452 at p. 466, paras 36 & 37",
"c) Central Bank vs. Kerala, 2009 (4) SCC 94 at p.",
132-133 para 104,
"d) AG Varadharajalu vs. Tamil Nadu, 1998 (4)",
SCC 231 at p. 236 para 16.,
"Hence, the Right to Information Act, 2005 cannot override the",
provisions for confidentiality conferred on the RBI by the,
earlier statutes referred to above.,
"35. The Preamble of the RTI Act, 2005 itself recognizes the",
fact that since the revealing of certain information is likely to,
"conflict with other public interests like ""the preservation of",
"confidentiality of sensitive information"", there is a need to",
harmonise these conflicting interests. It is submitted that,
certain exemptions were carved out in the RTI Act to,
harmonise these conflicting interests. This Court in Central,
Board of Secondary Education and Anr. vs. Aditya,
"Bandopadhyay and Ors, (2011)8 SCC 497, has observed as",
under:-,
33,
"""When trying to ensure that the right to information",
does not conflict with several other public interests (which,
"includes efficient operations of the Governments,",
"preservation of confidentiality of sensitive information,",
"optimum use of limited fiscal resources, etc.), it is difficult",
to visualise and enumerate all types of information which,
require to be exempted from disclosure in public interest.,
The legislature has however made an attempt to do so. The,
enumeration of exemptions is more exhaustive than the,
"enumeration of exemptions attempted in the earlier Act,",
"that is, Section 8 of the Freedom to Information Act, 2002.",
The courts and Information Commissions enforcing the,
provisions of the RTI Act have to adopt a purposive,
"construction, involving a reasonable and balanced",
"approach which harmonises the two objects of the Act,",
while interpreting Section 8 and the other provisions of the,
"Act.""",
36. Apart from the legal position that the Right to,
"Information Act, 2005 does not override statutory provisions",
"of confidentiality in other Act, it is submitted that in any case",
"Section 8(1)(a) of the Right to Information Act, 2005 states",
that there is no obligation to give any information which,
pre-judiciously affects the economic interests of the States.,
Disclosure of such vital information relating to banking would,
pre-judiciously affect the economic interests of the State. This,
was clearly stated by the Full Bench of the Central Information,
Commission by its Order in the case of Ravin Ranchchodlal,
Patel (supra). Despite this emphatic ruling individual,
Commissioners of the Information have disregarded it by,
34,
holding that the decision of the Full Bench was per incurium,
and directed disclosure of information.,
"37. Other exceptions in Section 8, viz 8(1)(a)(d), 8(1)(e) would",
"also apply to disclosure by the RBI and banks. In sum,",
learned senior counsel submitted that the RBI cannot be,
directed to disclose information relating to banking under the,
"Right to Information Act, 2005.",
"38. Mr. Prashant Bhushan, learned counsel appearing for",
"the respondents in Transfer Case Nos.94 & 95 of 2015, began",
his arguments by referring the Preamble of the Constitution,
and submitted that through the Constitution it is the people,
"who have created legislatures, executives and the judiciary to",
exercise such duties and functions as laid down in the,
constitution itself.,
39. The right to information regarding the functioning of,
public institutions is a fundamental right as enshrined in,
Article 19 of the Constitution of India. This Hon’ble Court has,
declared in a plethora of cases that the most important value,
35,
for the functioning of a healthy and well informed democracy,
is transparency. Mr. Bhushan referred Constitution Bench,
judgment of this Court in the case of State of U.P. vs. Raj,
"Narain, AIR 1975 SC 865, and submitted that it is a",
"Government’s responsibility like ours, where all the agents of",
"the public must be responsible for their conduct, there can be",
but few secrets. The people of this country have a right to,
"know every public act, everything that is done in a public way,",
"by their functionaries. The right to know, which is derived",
"from the concept of freedom of speech, though not absolute, is",
"a factor which should make one wary, when secrecy is claimed",
"for transactions which can, at any rate, have no repercussion",
"on public security. To cover with veil of secrecy, the common",
routine business is not in the interest of public.,
40. In the case of S.P. Gupta v. President of India and,
"Ors., AIR 1982 SC 149, a seven Judge Bench of this Court",
made the following observations regarding the right to,
information:-,
"""There is also in every democracy a certain amount of",
"public suspicion and distrust of Government, varying of",
"course from time to time according to its performance,",
36,
which prompts people to insist upon maximum exposure of,
its functioning. It is axiomatic that every action of the,
Government must be actuated by public interest but even,
"so we find cases, though not many, where Governmental",
action is taken not for public good but for personal gain or,
other extraneous considerations. Sometimes Governmental,
action is influenced by political and other motivations and,
"pressures and at times, there are also instances of misuse",
"or abuse of authority on the part of the executive. Now, if",
secrecy were to be observed in the functioning of,
Government and the processes of Government were to be,
"kept hidden from public scrutiny, it would tend to promote",
"and encourage oppression, corruption and misuse or abuse",
"of authority, for it would all be shrouded in the veil of",
secrecy without any public accountability. But if there is an,
open Government with means of information available to,
"the public, there would be greater exposure of the",
functioning of Government and it would help to assure the,
people a better and more efficient administration. There can,
be little doubt that exposure to public gaze and scrutiny is,
one of the surest means of achieving a clean and healthy,
administration. It has been truly said that an open,
Government is clean Government and a powerful safeguard,
against political and administrative aberration and,
"inefficiency.""",
41. In the case of the Union of India vs. Association for,
"Democratic Reforms, AIR 2002 SC 2112, while declaring that",
it is part of the fundamental right of citizens under Article,
19(1)(a) to know the assets and liabilities of candidates,
"contesting election to the Parliament or the State Legislatures,",
a three Judge Bench of this Court held unequivocally that:-,
"""The right to get information in a democracy is recognized all",
throughout and is a natural right flowing from the concept of,
"democracy (Para 56)."" Thereafter, legislation was passed",
37,
"amending the Representation of People Act, 1951 that",
candidates need not provide such information. This Court in,
"the case of PUCL vs. Union of India, (2003) 4 SCC 399,",
"struck down that legislation by stating: ""It should be properly",
understood that the fundamental rights enshrined in the,
"Constitution such as, right to equality and freedoms have no",
"fixed contents. From time to time, this Court has filled in the",
skeleton with soul and blood and made it vibrant. Since the,
"last more than 50 years, this Court has interpreted Articles",
"14, 19 and 21 and given meaning and colour so that the",
"nation can have a truly republic democratic society.""",
"42. The RTI Act, 2005, as noted in its very preamble, does",
not create any new right but only provides machinery to,
effectuate the fundamental right to information. The,
institution of the CIC and the SICs are part of that machinery.,
"The preamble also inter-alia states ""... democracy requires an",
informed citizenry and transparency of information which are,
vital to its functioning and also to contain corruption and to,
38,
hold Governments and their instrumentalities accountable to,
"the governed.""",
43. The submission of the RBI that exceptions be carved out,
of the RTI Act regime in order to accommodate provisions of,
RBI Act and Banking Regulation Act is clearly misconceived.,
"RTI Act, 2005 contains a clear provision (Section 22) by virtue",
of which it overrides all other Acts including Official Secrets,
"Act. Thus, notwithstanding anything to the contrary",
contained in any other law like RBI Act or Banking Regulation,
"Act, the RTI Act, 2005 shall prevail insofar as transparency",
"and access to information is concerned. Moreover, the RTI Act",
"2005, being a later law, specifically brought in to usher",
transparency and to transform the way official business is,
"conducted, would have to override all earlier practices and",
laws in order to achieve its objective. The only exceptions to,
access to information are contained in RTI Act itself in,
Section 8.,
39,
"44. In T.C.No.94 of 2015, the RTI applicant Mr. P.P. Kapoor",
had asked about the details of the loans taken by the,
"industrialists that have not been repaid, and he had asked",
about the names of the top defaulters who have not repaid,
their loans to public sector banks. The RBI resisted the,
disclosure of the information claiming exemption under,
Section 8(1) (a) and 8(1)(e) of the RTI Act on the ground that,
"disclosure would affect the economic interest of the country,",
and that the information has been received by the RBI from,
the banks in fiduciary capacity. The CIC found these,
arguments made by RBI to be totally misconceived in facts and,
"in law, and held that the disclosure would be in public",
interest.,
"45. In T.C.No.95 of 2015, the RTI applicant therein Mr.",
Subhash Chandra Agrawal had asked about the details of the,
show cause notices and fines imposed by the RBI on various,
banks. The RBI resisted the disclosure of the information,
"claiming exemption under Section 8(1)(a),(d) and 8(1) (e) of the",
RTI Act on the ground that disclosure would affect the,
40,
"economic interest of the country, the competitive position of",
the banks and that the information has been received by RBI,
"in fiduciary capacity. The CIC, herein also, found these",
arguments made by RBI to be totally misconceived in facts and,
in law and held that the disclosure would be in public interest.,
46. In reply to the submission of the petitioner about,
"fiduciary relationship, learned counsel submitted that the",
scope of Section 8(1)(e) of the RTI Act has been decided by this,
Court in Central Board of Secondary Education vs. Aditya,
"Bandopadhyay, (2011) 8 SCC 497, wherein, while rejecting",
the argument that CBSE acts in a fiduciary capacity to the,
"students, it was held that:",
"""...In a philosophical and very wide sense, examining bodies",
"can be said to act in a fiduciary capacity, with reference to",
"students who participate in an examination, as a",
Government does while governing its citizens or as the,
present generation does with reference to the future,
generation while preserving the environment. But the word,
‘information available to a person in his fiduciary,
relationship’ are used in Section 8(1) (e) of the RTI Act in its,
"normal and well recognized sense, that is to refer to persons",
"who act in a fiduciary capacity, with reference to specific",
beneficiary or beneficiaries who are to be expected to be,
"protected or benefited by the action of the fiduciary.""",
41,
47. We have extensively heard all the counsels appearing for,
the petitioner Banks and respondents and examined the law,
and the facts.,
"48. While introducing the Right to Information Bill, 2004 a",
serious debate and discussion took place. The then Prime,
Minister while addressing the House informed that the RTI Bill,
is to provide for setting out practical regime of right to,
"information for people, to secure access to information under",
the control of public authorities in order to promote,
transparency and accountability in the working of every public,
authority. The new legislation would radically alter the ethos,
and culture of secrecy through ready sharing of information by,
the State and its agencies with the people. An era of,
transparency and accountability in governance is on the anvil.,
"Information, and more appropriately access to information",
would empower and enable people not only to make informed,
choices but also participate effectively in decision making,
processes. Tracing the origin of the idea of the then Prime,
"Minister who had stated, ""Modern societies are information",
42,
societies. Citizens tend to get interested in all fields of life and,
"demand information that is as comprehensive, accurate and",
"fair as possible."" In the Bill, reference has also been made to",
the decision of the Supreme Court to the effect that Right to,
Information has been held as inherent in Article 19 of our,
"Constitution, thereby, elevating it to a fundamental right of the",
"citizen. The Bill, which sought to create an effective",
"mechanism for easy exercise of this Right, was held to have",
"been properly titled as ""Right to Information Act"". The Bill",
further states that a citizen has to merely make a request to,
the concerned Public Information Officer specifying the,
particulars of the information sought by him. He is not,
"required to give any reason for seeking information, or any",
other personal details except those necessary for contacting,
"him. Further, the Bill states:-",
"""The categories of information exempted from",
disclosure are a bare minimum and are contained in,
clause 8 of the Bill. Even these exemptions are not,
absolute and access can be allowed to them in public,
interest if disclosure of the information outweighs,
the harm to the public authorities. Such disclosure,
has been permitted even if it is in conflict with the,
"provisions of the Official Secrets Act, 1923.",
"Moreover, barring two categories that relate to",
information disclosure - which may affect,
43,
"sovereignty and integrity of India etc., or information",
relating to Cabinet papers etc.-all other categories of,
exempted information would be disclosed after,
twenty years.,
There is another aspect about which information is,
to be made public. We had a lengthy discussion and,
it is correctly provided in the amendment under,
clause 8 of the Bill. The following information shall,
be exempted from disclosure which would,
prejudicially affect the sovereignty and integrity of,
India; which has been expressly forbidden; which,
may result in a breach of privileges of Parliament or,
the Legislature; and also information pertaining to,
defence matters. They are listed in clause 8 (a) to (g).,
There are exceptions to this clause. Where it is,
considered necessary that the information will be,
"divulged in the interest of the State, that will be",
done. There must be transparency in public life.,
There must be transparency in administration and,
people must have a right to know what has actually,
transpired in the secretariat of the State as well as,
the Union Ministry. A citizen will have a right,
because it will be safe to prevent corruption. Many,
things are done behind the curtain. Many shoddy,
deals take place in the secretariats of the Central,
and State Governments and the information will,
always be kept hidden. Such practice should not be,
allowed in a democratic country like ours. Ours is a,
republic. The citizenry should have a right to know,
what transpired in the secretariat. Even Cabinet,
"papers, after a decision has been taken, must be",
divulged as per the provisions of this amendment. It,
"cannot be hidden from the knowledge of others.""",
"49. Addressing the House, it was pointed out by the then",
"Prime Minister that in our country, Government expenditure",
both at the Central and at the level of the States and local,
"bodies, account for nearly 33% of our Gross National Product.",
"At the same time, the socio-economic imperatives require our",
44,
Government to intervene extensively in economic and social,
"affairs. Therefore, the efficiency and effectiveness of the",
"government processes are critical variables, which will",
determine how our Government functions and to what extent,
it is able to discharge the responsibilities entrusted. It was,
pointed out that there are widespread complaints in our,
"country about wastefulness of expenditure, about corruption,",
and matter which have relations with the functioning of the,
"Government. Therefore, it was very important to explore new",
effective mechanism to ensure that the Government will,
purposefully and effectively discharge the responsibilities,
entrusted to it.,
50. Finally the Right to Information Act was passed by the,
"Parliament called ""The Right to Information Act, 2005"". The",
Preamble states:-,
"""An Act to provide for setting out the practical",
regime of right to information for citizens to secure,
access to information under the control of public,
"authorities, in order to promote transparency and",
accountability in the working of every public,
"authority, the constitution of a Central Information",
Commission and State Information Commissions and,
for matters connected therewith or incidental,
thereto.,
45,
WHEREAS the Constitution of India has,
established democratic Republic;,
AND WHEREAS democracy requires an,
informed citizenry and transparency of information,
which are vital to its functioning and also to contain,
corruption and to hold Governments and their,
instrumentalities accountable to the governed;,
AND WHEREAS revelation of information in,
actual practice is likely to conflict with other public,
interests including efficient operations of the,
"Governments, optimum use of limited fiscal",
resources and the preservation of confidentiality of,
sensitive information;,
AND WHEREAS it is necessary to harmonise,
these conflicting interest while preserving the,
paramountcy of the democratic ideal;,
"NOW, THEREFORE, it is expedient to provide",
for furnishing certain information to citizens who,
"desire to have it.""",
51. Section 2 of the Act defines various authorities and the,
words. Section 2(j) defines right to information as under :-,
"""2(j) ""right to information"" means the right to",
information accessible under this Act which is held,
by or under the control of any public authority and,
includes the right to-,
"(i) inspection of work, documents, records;",
"(ii) taking notes, extracts, or certified",
copies of documents or records;,
(iii) taking certified samples of material;,
(iv) obtaining information in the form of,
"diskettes, floppies, tapes, video",
cassettes or in any other electronic,
mode or through printouts where such,
information is stored in a computer or,
"in any other device;""",
46,
52. Section 3 provides that all citizens shall have the right to,
information subject to the provisions of this Act. Section 4,
makes it obligatory on all public authorities to maintain,
records in the manner provided therein. According to Section,
"6, a person who desires to obtain any information under the",
Act shall make a request in writing or through electronic,
means in English or Hindi in the official language of the area,
in which the application is being made to the competent,
authority specifying the particulars of information sought by,
him or her. Sub-section (ii) of Section 6 provides that the,
applicant making request for information shall not be required,
to give any reason for requesting the information or any other,
personal details except those that may be necessary for,
contacting him. Section 7 lays down the procedure for,
disposal of the request so made by the person under Section 6,
"of the Act. Section 8, however, provides certain exemption",
from disclosure of information. For better appreciation,
Section 8 is quoted hereinbelow:-,
47,
"""8. Exemption from disclosure of information.--",
"(1) Notwithstanding anything contained in this Act,",
"there shall be no obligation to give any citizen,--",
"(a) information, disclosure of which would prejudicially",
"affect the sovereignty and integrity of India, the",
"security, strategic, scientific or economic interests of",
"the State, relation with foreign State or lead to",
incitement of an offence;,
(b) information which has been expressly forbidden to,
be published by any court of law or tribunal or the,
disclosure of which may constitute contempt of court;,
"(c) information, the disclosure of which would cause a",
breach of privilege of Parliament or the State,
Legislature;,
"(d) information including commercial confidence, trade",
"secrets or intellectual property, the disclosure of which",
"would harm the competitive position of a third party,",
unless the competent authority is satisfied that larger,
public interest warrants the disclosure of such,
information;,
(e) information available to a person in his fiduciary,
"relationship, unless the competent authority is",
satisfied that the larger public interest warrants the,
disclosure of such information;,
(f) information received in confidence from foreign,
government;,
"(g) information, the disclosure of which would",
endanger the life or physical safety of any person or,
identify the source of information or assistance given,
in confidence for law enforcement or security,
purposes;,
(h) information which would impede the process of,
investigation or apprehension or prosecution of,
offenders;,
(i) cabinet papers including records of deliberations of,
"the Council of Ministers, Secretaries and other officers:",
"Provided that the decisions of Council of Ministers, the",
"reasons thereof, and the material on the basis of which",
the decisions were taken shall be made public after the,
"decision has been taken, and the matter is complete,",
or over: Provided further that those matters which,
come under the exemptions specified in this section,
shall not be disclosed;,
(j) information which relates to personal information,
the disclosure of which has not relationship to any,
48,
"public activity or interest, or which would cause",
unwarranted invasion of the privacy of the individual,
unless the Central Public Information Officer or the,
State Public Information Officer or the appellate,
"authority, as the case may be, is satisfied that the",
larger public interest justifies the disclosure of such,
"information: Provided that the information, which",
cannot be denied to the Parliament or a State,
Legislature shall not be denied to any person.,
(2) Notwithstanding anything in the Official Secrets,
"Act, 1923 (19 of 1923) nor any of the exemptions",
"permissible in accordance with sub-section (1), a",
"public authority may allow access to information, if",
public interest in disclosure outweighs the harm to the,
protected interests.,
"(3) Subject to the provisions of clauses (a), (c) and (i) of",
"sub-section (1), any information relating to any",
"occurrence, event or matter which has taken place,",
occurred or happened twenty years before the date on,
which any request is made under section 6 shall be,
provided to any person making a request under that,
section: Provided that where any question arises as to,
the date from which the said period of twenty years,
"has to be computed, the decision of the Central",
"Government shall be final, subject to the usual",
"appeals provided for in this Act.""",
53. The information sought for by the respondents from the,
petitioner-Bank have been denied mainly on the ground that,
such information is exempted from disclosure under Section,
8(1)(a)(d) and (e) of the RTI Act.,
54. Learned counsel appearing for the petitioner-Bank,
mainly relied upon Section 8(1)(e) of the RTI Act taking the,
49,
stand that the Reserve Bank of India having fiduciary,
relationship with the other banks and that there is no reason,
to disclose such information as no larger public interest,
"warrants such disclosure. The primary question therefore, is,",
whether the Reserve Bank of India has rightly refused to,
disclose information on the ground of its fiduciary relationship,
with the banks.,
"55. The Advanced Law Lexicon, 3rd Edition, 2005, defines",
"fiduciary relationship as ""a relationship in which one person is",
under a duty to act for the benefit of the other on the matters,
within the scope of the fiduciary relationship. Fiduciary,
relationship usually arise in one of the four situations (1),
when one person places trust in the faithful integrity of,
"another, who as a result gains superiority or influence over the",
"first, (2) when one person assumes control and responsibility",
"over another, (3) when one person has a duty to act or give",
advice to another on matters falling within the scope of the,
"relationship, or (4) when there is specific relationship that has",
50,
"traditionally be recognized as involving fiduciary duties, as",
"with a lawyer and a client, or a stockbroker and a customer.""",
56. The scope of the fiduciary relationship consists of the,
following rules:,
"""(i) No Conflict rule- A fiduciary must not place",
himself in a position where his own interests conflicts,
with that of his customer or the beneficiary. There,
"must be ""real sensible possibility of conflict.",
(ii) No profit rule- a fiduciary must not profit from,
"his position at the expense of his customer, the",
beneficiary;,
(iii) Undivided loyalty rule- a fiduciary owes,
"undivided loyalty to the beneficiary, not to place",
himself in a position where his duty towards one,
person conflicts with a duty that he owes to another,
customer. A consequence of this duty is that a,
fiduciary must make available to a customer all the,
information that is relevant to the customer’s affairs,
(iv) Duty of confidentiality- a fiduciary must only,
use information obtained in confidence and must not,
"use it for his own advantage, or for the benefit of",
"another person.""",
57. The term fiduciary relationship has been well discussed,
by this Court in the case of Central Board of Secondary,
Education and Anr. vs. Aditya Bandopadhyay and Ors.,
"(supra). In the said decision, their Lordships referred various",
authorities to ascertain the meaning of the term fiduciary,
relationship and observed thus:-,
51,
"""20.1) Black’s Law Dictionary (7th Edition, Page 640)",
defines ‘fiduciary relationship’ thus:,
"""A relationship in which one person is under a duty to",
act for the benefit of the other on matters within the,
scope of the relationship. Fiduciary relationships -,
"such as trustee-beneficiary, guardian-ward,",
"agent-principal, and attorney-client - require the",
highest duty of care. Fiduciary relationships usually,
arise in one of four situations : (1) when one person,
"places trust in the faithful integrity of another, who as",
"a result gains superiority or influence over the first, (2)",
when one person assumes control and responsibility,
"over another, (3) when one person has a duty to act for",
or give advice to another on matters falling within the,
"scope of the relationship, or (4) when there is a specific",
relationship that has traditionally been recognized as,
"involving fiduciary duties, as with a lawyer and a client",
"or a stockbroker and a customer.""",
20.2) The American Restatements (Trusts and Agency),
define ‘fiduciary’ as one whose intention is to act for,
the benefit of another as to matters relevant to the,
relation between them. The Corpus Juris Secundum,
(Vol. 36A page 381) attempts to define fiduciary thus :,
"""A general definition of the word which is sufficiently",
comprehensive to embrace all cases cannot well be,
"given. The term is derived from the civil, or Roman, law.",
"It connotes the idea of trust or confidence,",
"contemplates good faith, rather than legal obligation, as",
"the basis of the transaction, refers to the integrity, the",
"fidelity, of the party trusted, rather than his credit or",
"ability, and has been held to apply to all persons who",
"occupy a position of peculiar confidence toward others,",
and to include those informal relations which exist,
"whenever one party trusts and relies on another, as",
well as technical fiduciary relations.,
"The word ‘fiduciary,’ as a noun, means one who holds a",
"thing in trust for another, a trustee, a person holding",
"the character of a trustee, or a character analogous to",
"that of a trustee, with respect to the trust and",
confidence involved in it and the scrupulous good faith,
"and candor which it requires; a person having the duty,",
"created by his undertaking, to act primarily for",
52,
another’s benefit in matters connected with such,
"undertaking. Also more specifically, in a statute, a",
"guardian, trustee, executor, administrator, receiver,",
"conservator, or any person acting in any fiduciary",
"capacity for any person, trust, or estate. Some",
"examples of what, in particular connections, the term",
has been held to include and not to include are set out,
"in the note.""",
"20.3) Words and Phrases, Permanent Edition (Vol. 16A,",
Page 41) defines ‘fiducial relation’ thus :,
"""There is a technical distinction between a ‘fiducial",
relation’ which is more correctly applicable to legal,
"relationships between parties, such as guardian and",
"ward, administrator and heirs, and other similar",
"relationships, and ‘confidential relation’ which includes",
"the legal relationships, and also every other",
relationship wherein confidence is rightly reposed and,
is exercised.,
"Generally, the term ‘fiduciary’ applies to any person",
who occupies a position of peculiar confidence towards,
another. It refers to integrity and fidelity. It,
"contemplates fair dealing and good faith, rather than",
"legal obligation, as the basis of the transaction. The",
term includes those informal relations which exist,
"whenever one party trusts and relies upon another, as",
"well as technical fiduciary relations.""",
20.4) In Bristol and West Building Society vs. Mothew,
[1998 Ch. 1] the term fiduciary was defined thus :,
"""A fiduciary is someone who has undertaken to act for",
and on behalf of another in a particular matter in,
circumstances which give rise to a relationship of trust,
and confidence. The distinguishing obligation of a,
fiduciary is the obligation of loyalty..... A fiduciary must,
act in good faith; he must not make a profit out of his,
trust; he must not place himself in a position where his,
duty and his interest may conflict; he may not act for,
his own benefit or the benefit of a third person without,
"the informed consent of his principal.""",
53,
20.5) In Wolf vs. Superior Court [2003 (107) California,
"Appeals, 4th 25] the California Court of Appeals defined",
fiduciary relationship as under :,
"""any relationship existing between the parties to the",
transaction where one of the parties is duty bound to,
act with utmost good faith for the benefit of the other,
party. Such a relationship ordinarily arises where,
confidence is reposed by one person in the integrity of,
"another, and in such a relation the party in whom the",
"confidence is reposed, if he voluntarily accepts or",
"assumes to accept the confidence, can take no",
advantage from his acts relating to the interests of the,
other party without the latter’s knowledge and,
"consent.""",
21. The term ‘fiduciary’ refers to a person having a duty,
"to act for the benefit of another, showing good faith and",
"condour, where such other person reposes trust and",
special confidence in the person owing or discharging,
the duty. The term ‘fiduciary relationship’ is used to,
describe a situation or transaction where one person,
(beneficiary) places complete confidence in another,
"person (fiduciary) in regard to his affairs, business or",
transaction/s. The term also refers to a person who,
holds a thing in trust for another (beneficiary). The,
fiduciary is expected to act in confidence and for the,
"benefit and advantage of the beneficiary, and use good",
faith and fairness in dealing with the beneficiary or the,
things belonging to the beneficiary. If the beneficiary,
"has entrusted anything to the fiduciary, to hold the",
thing in trust or to execute certain acts in regard to or,
"with reference to the entrusted thing, the fiduciary has",
to act in confidence and expected not to disclose the,
thing or information to any third party. There are also,
certain relationships where both the parties have to act,
in a fiduciary capacity treating the other as the,
beneficiary. Examples of these are : a partner vis-‘-vis,
another partner and an employer vis-‘-vis employee.,
An employee who comes into possession of business or,
trade secrets or confidential information relating to the,
"employer in the course of his employment, is expected",
to act as a fiduciary and cannot disclose it to others.,
"Similarly, if on the request of the employer or official",
"superior or the head of a department, an employee",
54,
"furnishes his personal details and information, to be",
"retained in confidence, the employer, the official",
superior or departmental head is expected to hold such,
"personal information in confidence as a fiduciary, to be",
made use of or disclosed only if the employee’s conduct,
"or acts are found to be prejudicial to the employer.""",
"58. In the instant case, the RBI does not place itself in a",
"fiduciary relationship with the Financial institutions (though,",
"in word it puts itself to be in that position) because, the",
"reports of the inspections, statements of the bank, information",
related to the business obtained by the RBI are not under the,
pretext of confidence or trust. In this case neither the RBI nor,
the Banks act in the interest of each other. By attaching an,
"additional ""fiduciary"" label to the statutory duty, the",
Regulatory authorities have intentionally or unintentionally,
created an in terrorem effect.,
59. RBI is a statutory body set up by the RBI Act as India’s,
Central Bank. It is a statutory regulatory authority to oversee,
the functioning of the banks and the country’s banking sector.,
"Under Section 35A of the Banking Regulation Act, RBI has",
been given powers to issue any direction to the banks in,
55,
"public interest, in the interest of banking policy and to secure",
proper management of a banking company. It has several,
other far-reaching statutory powers.,
60. RBI is supposed to uphold public interest and not the,
interest of individual banks. RBI is clearly not in any fiduciary,
relationship with any bank. RBI has no legal duty to,
maximize the benefit of any public sector or private sector,
"bank, and thus there is no relationship of ‘trust’ between",
them. RBI has a statutory duty to uphold the interest of the,
"public at large, the depositors, the country’s economy and the",
"banking sector. Thus, RBI ought to act with transparency and",
not hide information that might embarrass individual banks.,
It is duty bound to comply with the provisions of the RTI Act,
and disclose the information sought by the respondents,
herein.,
61. The baseless and unsubstantiated argument of the RBI,
that the disclosure would hurt the economic interest of the,
"country is totally misconceived. In the impugned order, the",
CIC has given several reasons to state why the disclosure of,
56,
the information sought by the respondents would hugely serve,
"public interest, and non-disclosure would be significantly",
detrimental to public interest and not in the economic interest,
"of India. RBI’s argument that if people, who are sovereign, are",
made aware of the irregularities being committed by the banks,
"then the country’s economic security would be endangered, is",
not only absurd but is equally misconceived and baseless.,
62. The exemption contained in Section 8(1)(e) applies to,
exceptional cases and only with regard to certain pieces of,
"information, for which disclosure is unwarranted or",
undesirable. If information is available with a regulatory,
"agency not in fiduciary relationship, there is no reason to",
"withhold the disclosure of the same. However, where",
information is required by mandate of law to be provided to an,
"authority, it cannot be said that such information is being",
"provided in a fiduciary relationship. As in the instant case,",
the Financial institutions have an obligation to provide all the,
information to the RBI and such an information shared under,
an obligation/ duty cannot be considered to come under the,
57,
purview of being shared in fiduciary relationship. One of the,
"main characteristic of a Fiduciary relationship is ""Trust and",
"Confidence"". Something that RBI and the Banks lack between",
them.,
"63. In the present case, we have to weigh between the public",
interest and fiduciary relationship (which is being shared,
"between the RBI and the Banks). Since, RTI Act is enacted to",
"empower the common people, the test to determine limits of",
Section 8 of RTI Act is whether giving information to the,
general public would be detrimental to the economic interests,
of the country? To what extent the public should be allowed to,
get information?,
"64. In the context of above questions, it had long since come",
to our attention that the Public Information Officers (PIO),
under the guise of one of the exceptions given under Section 8,
"of RTI Act, have evaded the general public from getting their",
hands on the rightful information that they are entitled to.,
58,
65. And in this case the RBI and the Banks have sidestepped,
the General public’s demand to give the requisite information,
"on the pretext of ""Fiduciary relationship"" and ""Economic",
"Interest"". This attitude of the RBI will only attract more",
suspicion and disbelief in them. RBI as a regulatory authority,
should work to make the Banks accountable to their actions.,
"66. Furthermore, the RTI Act under Section 2(f) clearly",
"provides that the inspection reports, documents etc. fall under",
"the purview of ""Information"" which is obtained by the public",
"authority (RBI) from a private body. Section 2(f), reads thus:",
"""information"" means any material in any form,",
"including records, documents, memos, e-mails,",
"opinions, advices, press releases, circulars,",
"orders, logbooks, contracts, reports, papers,",
"samples, models, data material held in any",
electronic form and information relating to any,
private body which can be accessed by a public,
authority under any other law for the time being,
in force;,
67. From reading of the above section it can be inferred that,
the Legislature’s intent was to make available to the general,
public such information which had been obtained by the,
public authorities from the private body. Had it been the case,
59,
where only information related to public authorities was to be,
"provided, the Legislature would not have included the word",
"""private body"". As in this case, the RBI is liable to provide",
information regarding inspection report and other documents,
to the general public.,
68. Even if we were to consider that RBI and the Financial,
"Institutions shared a ""Fiduciary Relationship"", Section 2(f)",
would still make the information shared between them to be,
accessible by the public. The facts reveal that Banks are trying,
"to cover up their underhand actions, they are even more liable",
to be subjected to public scrutiny.,
69. We have surmised that many Financial Institutions have,
resorted to such acts which are neither clean nor transparent.,
The RBI in association with them has been trying to cover up,
their acts from public scrutiny. It is the responsibility of the,
RBI to take rigid action against those Banks which have been,
practicing disreputable business practices.,
60,
70. From the past we have also come across financial,
institutions which have tried to defraud the public. These acts,
are neither in the best interests of the Country nor in the,
"interests of citizens. To our surprise, the RBI as a Watch Dog",
should have been more dedicated towards disclosing,
information to the general public under the Right to,
Information Act.,
"71. We also understand that the RBI cannot be put in a fix,",
"by making it accountable to every action taken by it. However,",
in the instant case the RBI is accountable and as such it has,
to provide information to the information seekers under,
"Section 10(1) of the RTI Act, which reads as under:",
"""Section 10(1) Severability --Where a request",
for access to information is rejected on the,
ground that it is in relation to information which,
"is exempt from disclosure, then,",
"notwithstanding anything contained in this Act,",
access may be provided to that part of the record,
which does not contain any information which is,
exempt from disclosure under this Act and,
which can reasonably be severed from any part,
"that contains exempt information.""",
72. It was also contended by learned senior counsel for the,
RBI that disclosure of information sought for will also go,
61,
against the economic interest of the nation. The submission,
is wholly misconceived.,
73. Economic interest of a nation in most common parlance,
are the goals which a nation wants to attain to fulfil its,
"national objectives. It is the part of our national interest,",
meaning thereby national interest can’t be seen with the,
spectacles(glasses) devoid of economic interest.,
74. It includes in its ambit a wide range of economic,
transactions or economic activities necessary and beneficial to,
"attain the goals of a nation, which definitely includes as an",
objective economic empowerment of its citizens. It has been,
recognized and understood without any doubt now that one of,
the tool to attain this goal is to make information available to,
people. Because an informed citizen has the capacity to,
reasoned action and also to evaluate the actions of the,
"legislature and executives, which is very important in a",
participative democracy and this will serve the nation’s,
interest better which as stated above also includes its,
62,
economic interests. Recognizing the significance of this tool it,
has not only been made one of the fundamental rights under,
Article 19 of the Constitution but also a Central Act has been,
brought into effect on 12th October 2005 as the Right to,
"Information Act, 2005.",
75. The ideal of ‘Government by the people’ makes it,
necessary that people have access to information on matters of,
public concern. The free flow of information about affairs of,
Government paves way for debate in public policy and fosters,
accountability in Government. It creates a condition for ‘open,
governance’ which is a foundation of democracy.,
76. But neither the Fundamental Rights nor the Right to,
Information have been provided in absolute terms. The,
fundamental rights guaranteed under Article 19 Clause 1(a),
are restricted under Article 19 clause 2 on the grounds of,
"national and societal interest. Similarly Section 8, clause 1 of",
"Right to Information Act, 2005, contains the exemption",
provisions where right to information can be denied to public,
"in the name of national security and sovereignty, national",
63,
"economic interests, relations with foreign states etc. Thus, not",
all the information that the Government generates will or shall,
be given out to the public. It is true that gone are the days of,
closed doors policy making and they are not acceptable also,
but it is equally true that there are some information which if,
"published or released publicly, they might actually cause more",
harm than good to our national interest... if not domestically it,
can make the national interests vulnerable internationally and,
it is more so possible with the dividing line between national,
and international boundaries getting blurred in this age of,
rapid advancement of science and technology and global,
economy. It has to be understood that rights can be enjoyed,
without any inhibition only when they are nurtured within,
protective boundaries. Any excessive use of these rights which,
may lead to tampering these boundaries will not further the,
national interest. And when it comes to national economic,
"interest, disclosure of information about currency or exchange",
"rates, interest rates, taxes, the regulation or supervision of",
"banking, insurance and other financial institutions, proposals",
64,
for expenditure or borrowing and foreign investment could in,
"some cases harm the national economy, particularly if",
"released prematurely. However, lower level economic and",
"financial information, like contracts and departmental budgets",
should not be withheld under this exemption. This makes it,
necessary to think when or at what stage an information is to,
"be provided i.e., the appropriate time of providing the",
information which will depend on nature of information sought,
for and the consequences it will lead to after coming in public,
domain.,
"77. In one of the case, the respondent S.S. Vohra sought",
certain information in relation to the Patna Branch of ICICI,
Bank and advisory issued to the Hong Kong Branch of ICICI,
Bank. The contention of the respondent was that the Finance,
Minister had made a written statement on the floor of the,
"House on 24.07.2009 that some banks like SBI, ICICI, Bank of",
"Baroda, Dena Bank etc., were violating FEMA Guidelines for",
opening of accounts and categorically mentioned that the,
Patna Branch of ICICI Bank Ltd. had opened some fictitious,
65,
accounts which were opened by fraudsters and hence an,
advisory note was issued to the concerned branch on,
December 2007 for its irregularities. The Finance Minister,
even mentioned that in the year 2008 the ICICI Bank Ltd. was,
also warned for alleged irregular dealings in securities in Hong,
"Kong. Hence, the respondent sought such advisory note as",
issued by the RBI to ICICI Bank. The Central Information,
Commissioner in the impugned order considered the RBI,
Master Circular dated 01.07.2009 to all the commercial banks,
giving various directions and finally held as under :-,
"""It has been contended by the Counsel on behalf of",
the ICICI Bank Limited that an advisory note is prepared,
"after reliance on documents such as Inspection Reports,",
"Scrutiny reports etc. and hence, will contain the contents of",
those documents too which are otherwise exempt from,
disclosure. We have already expressed our view in express,
terms that whether or not an Advisory Note shall be,
disclosed under the RTI Act will have to be determined on,
"case by case basis. In some other case, for example, there",
may be a situation where some contents of the Advisory,
Note may have to be severed to such an extent that details,
of Inspection Reports etc. can be separated from the Note,
and then be provided to the RTI Applicant. Section 10 of,
the RTI Act leaves it open to decide each case on its merits,
after having satisfied ourselves whether an Advisory Note,
needs to be provided as it is or whether some of its contents,
may be severed since they may be exempted per se under,
"the RTI Act. However, we find no reason, whatsoever, to",
apply Section 10 of the RTI Act in order to severe the,
contents of the Advisory Note issued by the RBI to the ICICI,
Bank Limited as the matter has already been placed on the,
floor of the Lok Sabha by the Hon’ble Finance Minister.,
66,
This is a matter of concern since it involves the,
violation of policy Guidelines initiated by the RBI and,
affects the public at large. Transparency cannot be brought,
overnight in any system and one can hope to witness,
accountability in a system only when its end users are,
"well-educated, well-informed and well-aware. If the",
customers of commercial banks will remain oblivious to the,
violations of RBI Guidelines and standards which such,
"banks regularly commit, then eventually the whole financial",
system of the country would be at a monumental loss. This,
can only be prevented by suo motu disclosure of such,
information as the penalty orders are already in public,
"domain.""",
"78. Similarly, in another case the respondent Jayantilal N.",
"Mistry sought information from the CPIO, RBI in respect of a",
Cooperative Bank viz. Saraspur Nagrik Sahkari Bank Limited,
"related to inspection report, which was denied by the CPIO on",
the ground that the information contained therein were,
received by RBI in a fiduciary capacity and are exempt under,
Section 8(1)(e) of RTI Act. The CIC directed the petitioner to,
furnish that information since the RBI expressed their,
willingness to disclose a summary of substantive part of the,
inspection report to the respondent. While disposing of the,
appeal the CIC observed:-,
"""Before parting with this appeal, we would like to",
record our observations that in a rapidly unfolding,
"economics scenario, there are public institutions, both",
"in the banking and non-banking sector, whose",
activities have not served public interest. On the,
67,
"contrary, some such institutions may have attempted",
to defraud the public of their moneys kept with such,
institutions in trust. RBI being the Central Bank is,
one of the instrumentalities available to the public,
which as a regulator can inspect such institutions and,
initiate remedial measures where necessary. It is,
"important that the general public, particularly, the",
share holders and the depositors of such institutions,
are kept aware of RBI’s appraisal of the functioning of,
such institutions and taken into confidence about the,
remedial actions initiated in specific cases. This will,
serve the public interest. The RBI would therefore be,
well advised to be proactive in disclosing information,
to the public in general and the information seekers,
"under the RTI Act, in particular. The provisions of",
Section 10(1) of the RTI Act can therefore be,
judiciously used when necessary to adhere to this,
"objective.""",
"79. In another case, where the respondent P.P. Kapoor",
sought information inter alia about the details of default in,
"loans taken from public sector banks by industrialists, out of",
"the list of defaulters, top 100 defaulters, names of the",
"businessmen, firm name, principal amount, interest amount,",
date of default and date of availing the loan etc. The said,
information was denied by the CPIO mainly on the basis that,
it was held in fiduciary capacity and was exempt from,
"disclosure of such information. Allowing the appeal, the CIC",
directed for the disclosure of such information. The CIC in the,
impugned order has rightly observed as under:-,
68,
"""I wish government and its instrumentalities",
would remember that all information held by,
"them is owned by citizens, who are sovereign.",
"Further, it is often seen that banks and financial",
institutions continue to provide loans to,
industrialists despite their default in repayment,
"of an earlier loan."" This Court in UP Financial",
"Corporation vs. Gem Cap India Pvt. Ltd., AIR",
1993 SC 1435 has noted that :,
"""Promoting industrialization at the cost of",
public funds does not serve the public,
"interest, it merely amounts to transferring",
public money to private account’. Such,
practices have led citizens to believe that,
defaulters can get away and play fraud on,
public funds. There is no doubt that,
information regarding top industrialists,
who have defaulted in repayment of loans,
must be brought to citizens’ knowledge;,
there is certainly a larger public interest,
that could be served on ....disclosure of,
"the same. In fact, information about",
industrialists who are loan defaulters of,
the country may put pressure on such,
persons to pay their dues. This would,
have the impact of alerting Citizens about,
those who are defaulting in payments and,
could also have some impact in shaming,
them.,
RBI had by its Circular DBOD No.,
"BC/CIS/47/20.16.002/94 dated April 23, 1994",
directed all banks to send a report on their,
"defaulters, which it would share with all banks",
"and financial institutions, with the following",
objectives:,
1) To alert banks and financial institutions (FIs),
and to put them on guard against borrowers,
who have defaulted in their dues to lending,
institutions;,
2) To make public the names of the borrowers,
who have defaulted and against whom suits,
"have been filed by banks/ FIs.""",
69,
"80. At this juncture, we may refer the decision of this Court",
"in Mardia Chemicals Limited vs. Union of India, (2004) 4",
"SCC 311, wherein this court while considering the validity of",
SARFAESI Act and recovery of non-performing assets by,
"banks and financial institutions in India, held :-",
""".............it may be observed that though the",
transaction may have a character of a private,
contract yet the question of great importance behind,
such transactions as a whole having far reaching,
effect on the economy of the country cannot be,
"ignored, purely restricting it to individual",
transactions more particularly when financing is,
through banks and financial institutions utilizing the,
"money of the people in general namely, the",
depositors in the banks and public money at the,
"disposal of the financial institutions. Therefore,",
wherever public interest to such a large extent is,
involved and it may become necessary to achieve an,
"object which serves the public purposes, individual",
rights may have to give way. Public interest has,
always been considered to be above the private,
"interest. Interest of an individual may, to some",
"extent, be affected but it cannot have the potential of",
taking over the public interest having an impact in,
"the socio- economic drive of the country...........""",
81. In rest of the cases the CIC has considered elaborately,
the information sought for and passed orders which in our,
"opinion do not suffer from any error of law, irrationality or",
arbitrariness.,
70,
"82. We have, therefore, given our anxious consideration to",
the matter and came to the conclusion that the Central,
Information Commissioner has passed the impugned orders,
"giving valid reasons and the said orders, therefore, need no",
interference by this Court.,
83. There is no merit in all these cases and hence they are,
dismissed.,
..................................J.,
(M.Y. Eqbal),
..................................J.,
(C. Nagappan ),
New Delhi,
"December 16, 2015",
71,
ITEM NO.1A COURT NO.9 SECTION XVIA,
(For Judgment),
S U P R E M E C O U R T O F I N D I A,
RECORD OF PROCEEDINGS,
Transfer Case (Civil) No.91/2015 @ T.P.(C) No.707/2012,
RESERVE BANK OF INDIA Petitioner(s),
VERSUS,
JAYANTILAL N. MISTRY Respondent(s),
WITH T.C.(C) No.92/2015 @ T.P.(C) No.708/2012,
T.C.(C) No. 93/2015 @ T.P.(C) No.711/2012,
T.C.(C) No. 94/2015 @ T.P.(C) No.712/2012,
T.C.(C) No. 95/2015 @ T.P.(C) No.713/2012,
T.C.(C) No. 96/2015 @ T.P.(C) No.715/2012,
T.C.(C) No. 97/2015 @ T.P.(C) No.716/2012,
T.C.(C) No. 98/2015 @ T.P.(C) No.717/2012,
T.C.(C) No. 99/2015 @ T.P.(C) No.718/2012,
T.C.(C) No. 100/2015 @ T.P.(C) No.709/2012,
T.C.(C) No. 101/2015 @ T.P.(C) No.714/2012,
Date : 16/12/2015 These Cases were called on for,
pronouncement of Judgment today.,
"For Petitioner(s) Mr. T. R. Andhyarujina, Sr. Adv.",
"Mr. Kuldeep S. Parihar, Adv.",
"Mr. H. S. Parihar,Adv.",
"Mr. Soumik Gitosal, Adv.",
"Mr. Siddharth Sijoria, Adv.",
"Mr. P. Narasimhan,Adv.",
"Mr. Bharat Sangal,Adv.",
"For Respondent(s) Dr. Lalit Bhasin, Adv.",
"Ms. Nina Gupta, Adv.",
"Mr. Mudit Sharma,Adv.",
72,
"Mr. Prashant Bhushan,Adv.",
"Mr. H. S. Parihar,Adv.",
"Ms. Jyoti Mendiratta,Adv.",
"Mr. K.R. Anand, Adv.",
"Mr. Vivek Gupta,Adv.",
"Ms. Manisha T. Karia,Adv.",
"Ms. Srishti Rani, Adv.",
"Mr. Rakesh K. Sharma,Adv.",
"Mr. Amol B. Karande, Adv.",
Hon’ble Mr. Justice M. Y. Eqbal pronounced the,
reportable Judgment of the Bench comprising of His Lordship,
and Hon’ble Mr. Justice C. Nagappan.,
These transferred Cases are dismissed in terms of the,
signed reportable judgment.,
(Sanjay Kumar-II) (Indu Pokhriyal),
Court Master Court Master,
(Signed Order is placed on the file),
73,
Reportable,
IN THE SUPREME COURT OF INDIA,
CIVIL APPELALTE JURISDICTION,
CIVIL APPEAL NO.6454 OF 2011,
[Arising out of SLP [C] No.7526/2009],
Central Board of Secondary Education & Anr. … Appellants,
Vs.,
Aditya Bandopadhyay & Ors. … Respondents,
With,
CA No. 6456 of 2011 (@ SLP (C) No.9755 of 2009),
CA Nos.6457-6458 of 2011 (@ SLP (C) Nos.11162-11163 of 2009),
CA No.6461 of 2011 (@ SLP (C) No.11670 of 2009),
CA Nos.6462 of 2011 (@ SLP (C) No.13673 of 2009),
CA Nos.6464 of 2011 (@ SLP (C) No.17409 of 2009),
CA Nos. 6459 of 2011 (@ SLP (C) No.9776 of 2010),
CA Nos.6465-6468 of 2011 (@ SLP (C) Nos.30858-30861 of 2009),
J U D G M E N T,
"R.V.RAVEENDRAN, J.",
"Leave granted. For convenience, we will refer to the facts of the first",
case.,
"2. The first respondent appeared for the Secondary School Examination,",
2008 conducted by the Central Board of Secondary Education (for short,
2,
‘CBSE’ or the ‘appellant’). When he got the mark sheet he was disappointed,
with his marks. He thought that he had done well in the examination but his,
answer-books were not properly valued and that improper valuation had,
resulted in low marks. Therefore he made an application for inspection and,
re-evaluation of his answer-books. CBSE rejected the said request by letter,
dated 12.7.2008. The reasons for rejection were:,
(i) The information sought was exempted under Section 8(1)(e) of RTI,
Act since CBSE shared fiduciary relationship with its evaluators and,
maintain confidentiality of both manner and method of evaluation.,
(ii) The Examination Bye-laws of the Board provided that no candidate,
shall claim or is entitled to re-evaluation of his answers or disclosure,
or inspection of answer book(s) or other documents.,
(iii) The larger public interest does not warrant the disclosure of such,
information sought.,
"(iv) The Central Information Commission, by its order dated 23.4.2007 in",
appeal no. ICPB/A-3/CIC/2006 dated 10.2.2006 had ruled out such,
disclosure.”,
3. Feeling aggrieved the first respondent filed W.P. No.18189(W)/2008,
before the Calcutta High Court and sought the following reliefs : (a) for a,
declaration that the action of CBSE in excluding the provision of re-,
"evaluation of answer-sheets, in regard to the examinations held by it was",
"illegal, unreasonable and violative of the provisions of the Constitution of",
3,
India; (b) for a direction to CBSE to appoint an independent examiner for re-,
evaluating his answer-books and issue a fresh marks card on the basis of re-,
evaluation; (c) for a direction to CBSE to produce his answer-books in,
regard to the 2008 Secondary School Examination so that they could be,
properly reviewed and fresh marks card can be issued with re-evaluation,
marks; (d) for quashing the communication of CBSE dated 12.7.2008 and,
for a direction to produce the answer-books into court for inspection by the,
first respondent. The respondent contended that section 8(1)(e) of Right to,
"Information Act, 2005 (‘RTI Act’ for short) relied upon by CBSE was not",
applicable and relied upon the provisions of the RTI Act to claim inspection.,
"4. CBSE resisted the petition. It contended that as per its Bye-laws, re-",
evaluation and inspection of answer-books were impermissible and what,
was permissible was only verification of marks. They relied upon the CBSE,
"Examination Bye-law No.61, relevant portions of which are extracted",
below:,
“61. Verification of marks obtained by a Candidate in a subject,
(i) A candidate who has appeared at an examination conducted by the,
Board may apply to the concerned Regional Officer of the Board for,
verification of marks in any particular subject. The verification will be,
restricted to checking whether all the answer's have been evaluated and,
that there has been no mistake in the totalling of marks for each question,
in that subject and that the marks have been transferred correctly on the,
title page of the answer book and to the award list and whether the,
4,
supplementary answer book(s) attached with the answer book mentioned,
by the candidate are intact. No revaluation of the answer book or,
supplementary answer book(s) shall be done.,
(ii) Such an application must be made by the candidate within 21 days,
from the date of the declaration of result for Main Examination and 15,
days for Compartment Examination.,
(iii) All such applications must be accompanied by payment of fee as,
prescribed by the Board from time to time.,
"(iv) No candidate shall claim, or be entitled to, revaluation of his/her",
answers or disclosure or inspection of the answer book(s) or other,
documents.,
xxxx,
(vi) In no case the verification of marks shall be done in the presence of,
"the candidate or anyone else on his/her behalf, nor will the answer books",
be shown to him/her or his/her representative.,
(vii) Verification of marks obtained by a candidate will be done by the,
officials appointed by or with the approval of the Chairman.,
"(viii) The marks, on verification will be revised upward or downward, as",
per the actual marks obtained by the candidate in his/her answer book.,
xxxx,
62. Maintenance of Answer Books,
The answer books shall be maintained for a period of three months and,
shall thereafter be disposed of in the manner as decided by the Chairman,
from time to time.”,
(emphasis supplied),
CBSE submitted that 12 to 13 lakhs candidates from about 9000 affiliated,
schools across the country appear in class X and class XII examinations,
conducted by it and this generates as many as 60 to 65 lakhs of answer-,
"books; that as per Examination Bye-law No.62, it maintains the answer",
5,
books only for a period of three months after which they are disposed of. It,
was submitted that if candidates were to be permitted to seek re-evaluation,
"of answer books or inspection thereof, it will create confusion and chaos,",
subjecting its elaborate system of examinations to delay and disarray. It was,
"stated that apart from class X and class XII examinations, CBSE also",
conducts several other examinations (including the All India Pre-Medical,
"Test, All India Engineering Entrance Examination and Jawahar Navodaya",
Vidyalaya’s Selection Test). If CBSE was required to re-evaluate the,
answer-books or grant inspection of answer-books or grant certified copies,
"thereof, it would interfere with its effective and efficient functioning, and",
will also require huge additional staff and infrastructure. It was submitted,
that the entire examination system and evaluation by CBSE is done in a,
scientific and systemic manner designed to ensure and safeguard the high,
academic standards and at each level utmost care was taken to achieve the,
"object of excellence, keeping in view the interests of the students. CBSE",
referred to the following elaborate procedure for evaluation adopted by it :,
“The examination papers are set by the teachers with at least 20 years of,
teaching experience and proven integrity. Paper setters are normally,
appointed from amongst academicians recommended by then Committee,
of courses of the Board. Every paper setter is asked to set more than one,
set of question papers which are moderated by a team of moderators who,
are appointed from the academicians of the University or from amongst,
the Senior Principals. The function of the moderation team is to ensure,
correctness and consistency of different sets of question papers with the,
curriculum and to assess the difficulty level to cater to the students of,
6,
different schools in different categories. After assessing the papers from,
"every point of view, the team of moderators gives a declaration whether",
"the whole syllabus is covered by a set of question papers, whether the",
distribution of difficulty level of all the sets is parallel and various other,
aspects to ensure uniform standard. The Board also issues detailed,
instructions for the guidance of the moderators in order to ensure uniform,
criteria for assessment.,
The evaluation system on the whole is well organized and fool-proof. All,
the candidates are examined through question papers set by the same,
paper setters. Their answer books are marked with fictitious roll numbers,
so as to conceal their identity. The work of allotment of fictitious roll,
number is carried out by a team working under a Chief Secrecy Officer,
having full autonomy. The Chief Secrecy Officer and his team of,
assistants are academicians drawn from the Universities and other,
autonomous educational bodies not connected with the Board. The Chief,
Secrecy Officer himself is usually a person of the rank of a University,
professor. No official of the Board at the Central or Regional level is,
associated with him in performance of the task assigned to him. The codes,
of fictitious roll numbers and their sequences are generated by the Chief,
Secrecy Officer himself on the basis of mathematical formula which,
randomize the real roll numbers and are known only to him and his team.,
This ensures complete secrecy about the identification of the answer book,
"so much so, that even the Chairman, of the Board and the Controller of",
Examination of the Board do not have any information regarding the,
fictitious roll numbers granted by the Chief Secrecy Officer and their real,
counterpart numbers.,
"At the evaluation stage, the Board ensures complete fairness and",
uniformity by providing a marking scheme which is uniformity applicable,
to all the examiners in order to eliminate the chances of subjectivity.,
These marking schemes are jointly prepared at the Headquarters of the,
Board in Delhi by the Subject Experts of all the regions. The main purpose,
of the marking scheme is to maintain uniformity in the evaluation of the,
answer books.,
The evaluation of the answer books in all major subjects including,
"mathematics, science subjects is done in centralized “on the spot”",
evaluation centers where the examiners get answer book in interrupted,
"serial orders. Also, the answer books are jumbled together as a result of",
"which the examiners, say in Bangalore may be marking the answer book",
"of a candidate who had his examination in Pondicherry, Goa, Andaman",
"and Nicobar islands, Kerala, Andhra Pradesh, Tamil Nadu or Karnataka",
itself but he has no way of knowing exactly which answer book he is,
examining. The answer books having been marked with fictitious roll,
numbers give no clue to any examiner about the state or territory it,
7,
belongs to. It cannot give any clue about the candidate’s school or centre,
of examination. The examiner cannot have any inclination to do any,
favour to a candidate because he is unable to decodify his roll number or,
"to know as to which school, place or state or territory he belongs to.",
The examiners check all the questions in the papers thoroughly under the,
supervision of head examiner and award marks to the sub parts,
individually not collectively. They take full precautions and due attention,
is given while assessing an answer book to do justice to the candidate. Re-,
evaluation is administratively impossible to be allowed in a Board where,
lakhs of students take examination in multiple subjects.,
There are strict instructions to the additional head examiners not to allow,
any shoddy work in evaluation and not to issue more than 20-25 answer,
books for evaluation to an examiner on a single day. The examiners are,
practicing teachers who guard the interest of the candidates. There is no,
ground to believe that they do unjust marking and deny the candidates,
their due. It is true that in some cases totaling errors have been detected at,
the stage of scrutiny or verification of marks. In order to minimize such,
"errors and to further strengthen and to improve its system, from 1993",
checking of totals and other aspects of the answers has been trebled in,
order to detect and eliminate all lurking errors.,
The results of all the candidates are reviewed by the Results Committee,
functioning at the Head Quarters. The Regional Officers are not the,
number of this Committee. This Committee reviews the results of all the,
regions and in case it decides to standardize the results in view of the,
"results shown by the regions over the previous years, it adopts a uniform",
policy for the candidates of all the regions. No special policy is adopted,
"for any region, unless there are some special reasons. This practice of",
awarding standardized marks in order to moderate the overall results is a,
practice common to most of the Boards of Secondary Education. The,
exact number of marks awarded for the purpose of standardization in,
different subjects varies from year to year. The system is extremely,
impersonalized and has no room for collusion infringement. It is in a word,
a scientific system.”,
CBSE submitted that the procedure evolved and adopted by it ensures,
fairness and accuracy in evaluation of answer-books and made the entire,
process as foolproof as possible and therefore denial of re-evaluation or,
8,
inspection or grant of copies cannot be considered to be denial of fair play or,
unreasonable restriction on the rights of the students.,
5. A Division Bench of the High Court heard and disposed of the said,
writ petition along with the connected writ petitions (relied by West Bengal,
Board of Secondary Education and others) by a common judgment dated,
5.2.2009. The High Court held that the evaluated answer-books of an,
examinee writing a public examination conducted by statutory bodies like,
"CBSE or any University or Board of Secondary Education, being a",
"‘document, manuscript record, and opinion’ fell within the definition of",
“information” as defined in section 2(f) of the RTI Act. It held that the,
provisions of the RTI Act should be interpreted in a manner which would,
lead towards dissemination of information rather than withholding the same;,
"and in view of the right to information, the examining bodies were bound to",
provide inspection of evaluated answer books to the examinees.,
Consequently it directed CBSE to grant inspection of the answer books to,
the examinees who sought information. The High Court however rejected,
"the prayer made by the examinees for re-evaluation of the answer-books, as",
that was not a relief that was available under RTI Act. RTI Act only,
"provided a right to access information, but not for any consequential reliefs.",
9,
"Feeling aggrieved by the direction to grant inspection, CBSE has filed this",
appeal by special leave.,
6. Before us the CBSE contended that the High Court erred in (i),
"directing CBSE to permit inspection of the evaluated answer books, as that",
"would amount to requiring CBSE to disobey its Examination Bye-law 61(4),",
which provided that no candidate shall claim or be entitled to re-evaluation,
of answer books or disclosure/inspection of answer books; (ii) holding that,
"Bye-law 61(4) was not binding upon the examinees, in view of the",
"overriding effect of the provisions of the RTI Act, even though the validity",
of that bye-law had not been challenged; (iii) not following the decisions of,
this court in Maharashtra State Board of Secondary Education vs. Paritosh,
"B. Sheth [1984 (4) SCC 27], Parmod Kumar Srivastava vs. Chairman, Bihar",
"PAC [2004 (6) SCC 714], Board of Secondary Education vs. Pavan Ranjan",
"P [2004 (13) SCC 383], Board of Secondary Education vs. S [2007 (1) SCC",
"603] and Secretary, West Bengal Council of Higher Secondary Education",
vs. I Dass [2007 (8) SCC 242]; and (iv) holding that the examinee had a,
right to inspect his answer book under section 3 of the RTI Act and the,
examining bodies like CBSE were not exempted from disclosure of,
information under section 8(1)(e) of the RTI Act. The appellants contended,
"that they were holding the “information” (in this case, the evaluated answer",
10,
books) in a fiduciary relationship and therefore exempted under section,
8(1)(e) of the RTI Act.,
7. The examinees and the Central Information Commission contended,
that the object of the RTI Act is to ensure maximum disclosure of,
information and minimum exemptions from disclosure; that an examining,
"body does not hold the evaluated answer books, in any fiduciary relationship",
either with the student or the examiner; and that the information sought by,
"any examinee by way of inspection of his answer books, will not fall under",
any of the exempted categories of information enumerated in section 8 of the,
RTI Act. It was submitted that an examining body being a public authority,
"holding the ‘information’, that is, the evaluated answer-books, and the",
inspection of answer-books sought by the examinee being exercise of ‘right,
"to information’ as defined under the Act, the examinee as a citizen has the",
right to inspect the answer-books and take certified copies thereof. It was,
"also submitted that having regard to section 22 of the RTI Act, the",
provisions of the said Act will have effect notwithstanding anything,
"inconsistent in any law and will prevail over any rule, regulation or bye law",
of the examining body barring or prohibiting inspection of answer books.,
11,
"8. On the contentions urged, the following questions arise for our",
consideration :,
(i) Whether an examinee’s right to information under the RTI Act,
includes a right to inspect his evaluated answer books in a public,
examination or taking certified copies thereof?,
(ii) Whether the decisions of this court in Maharashtra State Board of,
Secondary Education [1984 (4) SCC 27] and other cases referred to,
"above, in any way affect or interfere with the right of an examinee",
seeking inspection of his answer books or seeking certified copies,
thereof?,
(iii) Whether an examining body holds the evaluated answer books “in a,
fiduciary relationship” and consequently has no obligation to give,
inspection of the evaluated answer books under section 8 (1)(e) of,
RTI Act?,
(iv) If the examinee is entitled to inspection of the evaluated answer books,
"or seek certified copies thereof, whether such right is subject to any",
"limitations, conditions or safeguards?",
Relevant Legal Provisions,
"9. To consider these questions, it is necessary to refer to the statement of",
"objects and reasons, the preamble and the relevant provisions of the RTI",
12,
"Act. RTI Act was enacted in order to ensure smoother, greater and more",
effective access to information and provide an effective framework for,
effectuating the right of information recognized under article 19 of the,
Constitution. The preamble to the Act declares the object sought to be,
achieved by the RTI Act thus:,
“An Act to provide for setting out the practical regime of right to,
information for citizens to secure access to information under the control,
"of public authorities, in order to promote transparency and accountability",
"in the working of every public authority, the constitution of a Central",
Information Commission and State Information Commissions and for,
matters connected therewith or incidental thereto.,
Whereas the Constitution of India has established democratic Republic;,
And whereas democracy requires an informed citizenry and transparency,
of information which are vital to its functioning and also to contain,
corruption and to hold Governments and their instrumentalities,
accountable to the governed;,
And whereas revelation of information in actual practice is likely to,
conflict with other public interests including efficient operations of the,
"Governments, optimum use of limited fiscal resources and the",
preservation of confidentiality of sensitive information;,
And whereas it is necessary to harmonise these conflicting interests while,
preserving the paramountcy of the democratic ideal.”,
Chapter II of the Act containing sections 3 to 11 deals with right to,
information and obligations of public authorities. Section 3 provides for,
"right to information and reads thus: “Subject to the provisions of this Act,",
all citizens shall have the right to information.” This section makes it clear,
13,
"that the RTI Act gives a right to a citizen to only access information, but not",
seek any consequential relief based on such information. Section 4 deals,
with obligations of public authorities to maintain the records in the manner,
provided and publish and disseminate the information in the manner,
provided. Section 6 deals with requests for obtaining information. It,
provides that applicant making a request for information shall not be,
required to give any reason for requesting the information or any personal,
details except those that may be necessary for contacting him. Section 8,
deals with exemption from disclosure of information and is extracted in its,
entirety:,
“8. Exemption from disclosure of information -- (1) Notwithstanding,
"anything contained in this Act, there shall be no obligation to give any",
"citizen,-",
"(a) information, disclosure of which would",
"prejudicially affect the sovereignty and integrity of India, the security,",
"strategic, scientific or economic interests of the State, relation with foreign",
State or lead to incitement of an offence;,
(b) information which has been expressly forbidden to,
be published by any court of law or tribunal or the disclosure of which,
may constitute contempt of court;,
"(c) information, the disclosure of which would cause a",
breach of privilege of Parliament or the State Legislature;,
"(d) information including commercial confidence, trade",
"secrets or intellectual property, the disclosure of which would harm the",
"competitive position of a third party, unless the competent authority is",
satisfied that larger public interest warrants the disclosure of such,
information;,
14,
(e) information available to a person in his fiduciary,
"relationship, unless the competent authority is satisfied that the larger",
public interest warrants the disclosure of such information;,
(f) information received in confidence from foreign,
Government;,
"(g) information, the disclosure of which would",
endanger the life or physical safety of any person or identify the source of,
information or assistance given in confidence for law enforcement or,
security purposes;,
(h) information which would impede the process of,
investigation or apprehension or prosecution of offenders;,
(i) cabinet papers including records of deliberations of,
"the Council of Ministers, Secretaries and other officers:",
"Provided that the decisions of Council of Ministers, the reasons thereof,",
and the material on the basis of which the decisions were taken shall be,
"made public after the decision has been taken, and the matter is complete,",
or over:,
Provided further that those matters which come under the exemptions,
specified in this section shall not be disclosed;,
(j) information which relates to personal information,
the disclosure of which has no relationship to any public activity or,
"interest, or which would cause unwarranted invasion of the privacy of the",
individual unless the Central Public Information Officer or the State,
"Public Information Officer or the appellate authority, as the case may be,",
is satisfied that the larger public interest justifies the disclosure of such,
information:,
Provided that the information which cannot be denied to the Parliament or,
a State Legislature shall not be denied to any person.,
(2) Notwithstanding anything in the Official Secrets,
"Act, 1923 (19 of 1923) nor any of the exemptions permissible in",
"accordance with sub-section (1), a public authority may allow access to",
"information, if public interest in disclosure outweighs the harm to the",
protected interests.,
"(3) Subject to the provisions of clauses (a), (c) and (i)",
"of sub-section (1), any information relating to any occurrence, event or",
"matter which has taken place, occurred or happened twenty years before",
15,
the date on which any request is made under secton 6 shall be provided to,
any person making a request under that section:,
Provided that where any question arises as to the date from which the said,
"period of twenty years has to be computed, the decision of the Central",
"Government shall be final, subject to the usual appeals provided for in this",
Act.”,
(emphasis supplied),
"Section 9 provides that without prejudice to the provisions of section 8, a",
request for information may be rejected if such a request for providing,
access would involve an infringement of copyright. Section 10 deals with,
severability of exempted information and sub-section (1) thereof is extracted,
below:,
“(1) Where a request for access to information is rejected on the ground,
"that it is in relation to information which is exempt from disclosure, then,",
"notwithstanding anything contained in this Act, access may be provided to",
that part of the record which does not contain any information which is,
exempt from disclosure under this Act and which can reasonably be,
severed from any part that contains exempt information.”,
Section 11 deals with third party information and sub-section (1) thereof is,
extracted below:,
“(1) Where a Central Public Information Officer or a State Public,
"Information Officer, as the case may be, intends to disclose any",
"information or record, or part thereof on a request made under this Act,",
which relates to or has been supplied by a third party and has been treated,
"as confidential by that third party, the Central Public Information Officer",
"or State Public Information Officer, as the case may be, shall, within five",
"days from the receipt of the request, give a written notice to such third",
party of the request and of the fact that the Central Public Information,
"Officer or State Public Information Officer, as the case may be, intends to",
16,
"disclose the information or record, or part thereof, and invite the third",
"party to make a submission in writing or orally, regarding whether the",
"information should be disclosed, and such submission of the third party",
shall be kept in view while taking a decision about disclosure of,
information:,
Provided that except in the case of trade or commercial secrets protected,
"by law, disclosure may be allowed if the public interest in disclosure",
outweighs in importance any possible harm or injury to the interests of,
such third party.”,
"The definitions of information, public authority, record and right to",
"information in clauses (f), (h), (i) and (j) of section 2 of the RTI Act are",
extracted below:,
"“(f) ""information"" means any material in any form, including records,",
"documents, memos, e-mails, opinions, advices, press releases, circulars,",
"orders, logbooks, contracts, reports, papers, samples, models, data material",
held in any electronic form and information relating to any private body,
which can be accessed by a public authority under any other law for the,
time being in force;,
"(h) ""public authority"" means any authority or body or institution of self-",
government established or constituted-,
(a) by or under the Constitution;,
(b) by any other law made by Parliament;,
(c) by any other law made by State Legislature;,
"(d) by notification issued or order made by the appropriate Government,",
and includes any-,
"(i) body owned, controlled or substantially financed;",
"(ii) non-Government organisation substantially financed,",
directly or indirectly by funds provided by the appropriate Government;,
17,
"(i) ""record"" includes-",
"(a) any document, manuscript and file;",
"(b) any microfilm, microfiche and facsimile copy of a document;",
(c) any reproduction of image or images embodied in such microfilm,
(whether enlarged or not); and,
(d) any other material produced by a computer or any other device;,
"(j) ""right to information"" means the right to information accessible under",
this Act which is held by or under the control of any public authority and,
includes the right to-,
"(i) inspection of work, documents, records;",
"(ii) taking notes, extracts or certified copies of documents or records;",
(iii) taking certified samples of material;,
"(iv) obtaining information in the form of diskettes, floppies, tapes,",
video cassettes or in any other electronic mode or through printouts,
where such information is stored in a computer or in any other,
device;,
Section 22 provides for the Act to have overriding effect and is extracted,
below:,
“The provisions of this Act shall have effect notwithstanding anything,
"inconsistent therewith contained in the Official Secrets Act, 1923 (19 of",
"1923), and any other law for the time being in force or in any instrument",
having effect by virtue of any law other than this Act.”,
10. It will also be useful to refer to a few decisions of this Court which,
considered the importance and scope of the right to information. In State of,
"Uttar Pradesh v. Raj Narain - (1975) 4 SCC 428, this Court observed:",
18,
"“In a government of responsibility like ours, where all the agents of the",
"public must be responsible for their conduct, there can but few secrets.",
"The people of this country have a right to know every public act,",
"everything, that is done in a public way, by their public functionaries.",
They are entitled to know the particulars of every public transaction in all,
"its bearing. The right to know, which is derived from the concept of",
"freedom of speech, though not absolute, is a factor which should make one",
"wary, when secrecy is claimed for transactions which can, at any rate,",
have no repercussion on public security.”,
(emphasis supplied),
"In Dinesh Trivedi v. Union of India – (1997) 4 SCC 306, this Court held:",
"“In modern constitutional democracies, it is axiomatic that citizens have a",
"right to know about the affairs of the Government which, having been",
"elected by them, seeks to formulate sound policies of governance aimed at",
"their welfare. However, like all other rights, even this right has recognised",
"limitations; it is, by no means, absolute. ………………Implicit in this",
assertion is the proposition that in transaction which have serious,
"repercussions on public security, secrecy can legitimately be claimed",
because it would then be in the public interest that such matters are not,
publicly disclosed or disseminated.,
To ensure the continued participation of the people in the democratic,
"process, they must be kept informed of the vital decisions taken by the",
"Government and the basis thereof. Democracy, therefore, expects",
openness and openness is a concomitant of a free society. Sunlight is the,
best disinfectant. But it is equally important to be alive to the dangers that,
lie ahead. It is important to realise that undue popular pressure brought to,
bear on decision-makers is Government can have frightening side-effects.,
If every action taken by the political or executive functionary is,
transformed into a public controversy and made subject to an enquiry to,
"soothe popular sentiments, it will undoubtedly have a chilling effect on the",
independence of the decision-maker who may find it safer not to take any,
decision. It will paralyse the entire system and bring it to a grinding halt.,
So we have two conflicting situations almost enigmatic and we think the,
answer is to maintain a fine balance which would serve public interest.”,
"In People’s Union for Civil Liberties v. Union of India - (2004) 2 SCC 476,",
this Court held that right of information is a facet of the freedom of “speech,
19,
and expression” as contained in Article 19(1)(a) of the Constitution of India,
and such a right is subject to any reasonable restriction in the interest of the,
security of the state and subject to exemptions and exceptions.,
Re : Question (i),
11. The definition of ‘information’ in section 2(f) of the RTI Act refers to,
"any material in any form which includes records, documents, opinions,",
papers among several other enumerated items. The term ‘record’ is defined,
"in section 2(i) of the said Act as including any document, manuscript or file",
among others. When a candidate participates in an examination and writes,
his answers in an answer-book and submits it to the examining body for,
"evaluation and declaration of the result, the answer-book is a document or",
record. When the answer-book is evaluated by an examiner appointed by the,
"examining body, the evaluated answer-book becomes a record containing",
the ‘opinion’ of the examiner. Therefore the evaluated answer-book is also,
an ‘information’ under the RTI Act.,
12. Section 3 of RTI Act provides that subject to the provisions of this,
Act all citizens shall have the right to information. The term ‘right to,
information’ is defined in section 2(j) as the right to information accessible,
20,
under the Act which is held by or under the control of any public authority.,
"Having regard to section 3, the citizens have the right to access to all",
information held by or under the control of any public authority except those,
excluded or exempted under the Act. The object of the Act is to empower,
the citizens to fight against corruption and hold the Government and their,
"instrumentalities accountable to the citizens, by providing them access to",
information regarding functioning of every public authority. Certain,
safeguards have been built into the Act so that the revelation of information,
will not conflict with other public interests which include efficient operation,
"of the governments, optimum use of limited fiscal resources and",
preservation of confidential and sensitive information. The RTI Act provides,
access to information held by or under the control of public authorities and,
not in regard to information held by any private person. The Act provides,
the following exclusions by way of exemptions and exceptions (under,
"sections 8, 9 and 24) in regard to information held by public authorities:",
(i) Exclusion of the Act in entirety under section 24 to intelligence and,
security organizations specified in the Second Schedule even though,
"they may be “public authorities”, (except in regard to information",
with reference to allegations of corruption and human rights,
violations).,
21,
(ii) Exemption of the several categories of information enumerated in,
section 8(1) of the Act which no public authority is under an,
"obligation to give to any citizen, notwithstanding anything contained",
"in the Act [however, in regard to the information exempted under",
"clauses (d) and (e), the competent authority, and in regard to the",
"information excluded under clause (j), Central Public Information",
"Officer/State Public Information Officer/the Appellate Authority, may",
"direct disclosure of information, if larger public interest warrants or",
justifies the disclosure].,
(iii) If any request for providing access to information involves an,
"infringement of a copyright subsisting in a person other than the State,",
the Central/State Public Information Officer may reject the request,
under section 9 of RTI Act.,
"Having regard to the scheme of the RTI Act, the right of the citizens to",
"access any information held or under the control of any public authority,",
should be read in harmony with the exclusions/exemptions in the Act.,
"13. The examining bodies (Universities, Examination Boards, CBSC etc.)",
are neither security nor intelligence organisations and therefore the,
exemption under section 24 will not apply to them. The disclosure of,
information with reference to answer-books does not also involve,
infringement of any copyright and therefore section 9 will not apply.,
22,
"Resultantly, unless the examining bodies are able to demonstrate that the",
evaluated answer-books fall under any of the categories of exempted,
"‘information’ enumerated in clauses (a) to (j) of sub-section (1) section 8,",
they will be bound to provide access to the information and any applicant,
"can either inspect the document/record, take notes, extracts or obtain",
certified copies thereof.,
14. The examining bodies contend that the evaluated answer-books are,
"exempted from disclosure under section 8(1)(e) of the RTI Act, as they are",
‘information’ held in its fiduciary relationship. They fairly conceded that,
evaluated answer-books will not fall under any other exemptions in sub-,
section (1) of section 8. Every examinee will have the right to access his,
"evaluated answer-books, by either inspecting them or take certified copies",
"thereof, unless the evaluated answer-books are found to be exempted under",
section 8(1)(e) of the RTI Act.,
Re : Question (ii),
"15. In Maharashtra State Board, this Court was considering whether",
denial of re-evaluation of answer-books or denial of disclosure by way of,
"inspection of answer books, to an examinee, under Rule 104(1) and (3) of",
23,
"the Maharashtra Secondary and Higher Secondary Board Rules, 1977 was",
violative of principles of natural justice and violative of Articles 14 and 19,
of the Constitution of India. Rule 104(1) provided that no re-evaluation of,
the answer books shall be done and on an application of any candidate,
verification will be restricted to checking whether all the answers have been,
examined and that there is no mistake in the totalling of marks for each,
question in that subject and transferring marks correctly on the first cover,
page of the answer book. Rule 104(3) provided that no candidate shall claim,
or be entitled to re-evaluation of his answer-books or inspection of answer-,
books as they were treated as confidential. This Court while upholding the,
validity of Rule 104(3) held as under :,
“…. the “process of evaluation of answer papers or of subsequent,
verification of marks” under Clause (3) of Regulation 104 does not attract,
the principles of natural justice since no decision making process which,
brings about adverse civil consequences to the examinees in involved. The,
principles of natural justice cannot be extended beyond reasonable and,
rational limits and cannot be carried to such absurd lengths as to make it,
necessary that candidates who have taken a public examination should be,
allowed to participate in the process of evaluation of their performances or,
to verify the correctness of the evaluation made by the examiners by,
themselves conducting an inspection of the answer-books and determining,
whether there has been a proper and fair valuation of the answers by the,
"examiners.""",
So long as the body entrusted with the task of framing the rules or,
"regulations acts within the scope of the authority conferred on it, in the",
sense that the rules or regulations made by it have a rational nexus with,
"the object and purpose of the statute, the court should not concern itself",
with the wisdom or efficaciousness of such rules or regulations…. The,
Legislature and its delegate are the sole repositories of the power to decide,
what policy should be pursued in relation to matters covered by the Act …,
24,
and there is no scope for interference by the Court unless the particular,
provision impugned before it can be said to suffer from any legal,
"infirmity, in the sense of its being wholly beyond the scope of the",
regulation making power or its being inconsistent with any of the,
provisions of the parent enactment or in violation of any of the limitations,
imposed by the Constitution.,
"It was perfectly within the competence of the Board, rather it was its plain",
"duty, to apply its mind and decide as a matter of policy relating to the",
conduct of the examination as to whether disclosure and inspection of the,
"answer books should be allowed to the candidates, whether and to what",
extent verification of the result should be permitted after the results have,
already been announced and whether any right to claim revaluation of the,
answer books should be recognised or provided for. All these are,
undoubtedly matters which have an intimate nexus with the objects and,
"purposes of the enactment and are, therefore, with in the ambit of the",
general power to make regulations….”,
This Court held that Regulation 104(3) cannot be held to be unreasonable,
"merely because in certain stray instances, errors or irregularities had gone",
unnoticed even after verification of the concerned answer books according,
to the existing procedure and it was only after further scrutiny made either,
on orders of the court or in the wake of contentions raised in the petitions,
"filed before a court, that such errors or irregularities were ultimately",
discovered. This court reiterated the view that “the test of reasonableness is,
not applied in vacuum but in the context of life’s realities” and concluded,
"that realistically and practically, providing all the candidates inspection of",
their answer books or re-evaluation of the answer books in the presence of,
the candidates would not be feasible. Dealing with the contention that every,
25,
student is entitled to fair play in examination and receive marks matching his,
"performance, this court held :",
“What constitutes fair play depends upon the facts and circumstances,
relating to each particular given situation. If it is found that every possible,
precaution has been taken and all necessary safeguards provided to ensure,
that the answer books inclusive of supplements are kept in safe custody so,
as to eliminate the danger of their being tampered with and that the,
evaluation is done by the examiners applying uniform standards with,
checks and crosschecks at different stages and that measures for detection,
"of malpractice, etc. have also been effectively adopted, in such cases it",
"will not be correct on the part of the Courts to strike down, the provision",
prohibiting revaluation on the ground that it violates the rules of fair play.,
It appears that the procedure evolved by the Board for ensuring fairness,
and accuracy in evaluation of the answer books has made the system as,
fool proof as can be possible and is entirely satisfactory. The Board is a,
very responsible body. The candidates have taken the examination with,
full awareness of the provisions contained in the Regulations and in the,
declaration made in the form of application for admission to the,
examination they have solemnly stated that they fully agree to abide by the,
"regulations issued by the Board. In the circumstances, when we find that",
"all safeguards against errors and malpractices have been provided for,",
there cannot be said to be any denial of fair play to the examinees by,
reason of the prohibition against asking for revaluation…. “,
This Court concluded that if inspection and verification in the presence of,
"the candidates, or revaluation, have to be allowed as of right, it may lead to",
"gross and indefinite uncertainty, particularly in regard to the relative ranking",
"etc. of the candidate, besides leading to utter confusion on account of the",
enormity of the labour and time involved in the process. This court,
concluded :,
26,
“… the Court should be extremely reluctant to substitute its own views as,
"to what is wise, prudent and proper in relation to academic matters in",
preference to those formulated by professional men possessing technical,
expertise and rich experience of actual day-to-day working of educational,
institutions and the departments controlling them. It will be wholly wrong,
for the court to make a pedantic and purely idealistic approach to the,
"problems of this nature, isolated from the actual realities and grass root",
problems involved in the working of the system and unmindful of the,
consequences which would emanate if a purely idealistic view as opposed,
to a pragmatic one were to be propounded.”,
16. The above principles laid down in Maharashtra State Board have,
"been followed and reiterated in several decisions of this Court, some of",
which are referred to in para (6) above. But the principles laid down in,
decisions such as Maharashtra State Board depend upon the provisions of,
the rules and regulations of the examining body. If the rules and regulations,
"of the examining body provide for re-evaluation, inspection or disclosure of",
"the answer-books, then none of the principles in Maharashtra State Board or",
"other decisions following it, will apply or be relevant. There has been a",
gradual change in trend with several examining bodies permitting inspection,
and disclosure of the answer-books.,
17. It is thus now well settled that a provision barring inspection or,
disclosure of the answer-books or re-evaluation of the answer-books and,
restricting the remedy of the candidates only to re-totalling is valid and,
"binding on the examinee. In the case of CBSE, the provisions barring re-",
27,
"evaluation and inspection contained in Bye-law No.61, are akin to Rule 104",
considered in Maharashtra State Board. As a consequence if an examination,
is governed only by the rules and regulations of the examining body which,
"bar inspection, disclosure or re-evaluation, the examinee will be entitled",
only for re-totalling by checking whether all the answers have been,
evaluated and further checking whether there is no mistake in totaling of,
marks for each question and marks have been transferred correctly to the,
"title (abstract) page. The position may however be different, if there is a",
"superior statutory right entitling the examinee, as a citizen to seek access to",
"the answer books, as information.",
"18. In these cases, the High Court has rightly denied the prayer for re-",
evaluation of answer-books sought by the candidates in view of the bar,
contained in the rules and regulations of the examining bodies. It is also not,
a relief available under the RTI Act. Therefore the question whether re-,
"evaluation should be permitted or not, does not arise for our consideration.",
What arises for consideration is the question whether the examinee is,
entitled to inspect his evaluated answer-books or take certified copies,
"thereof. This right is claimed by the students, not with reference to the rules",
"or bye-laws of examining bodies, but under the RTI Act which enables them",
28,
and entitles them to have access to the answer-books as ‘information’ and,
inspect them and take certified copies thereof. Section 22 of RTI Act,
"provides that the provisions of the said Act will have effect, notwithstanding",
anything inconsistent therewith contained in any other law for the time being,
in force. Therefore the provisions of the RTI Act will prevail over the,
provisions of the bye-laws/rules of the examining bodies in regard to,
"examinations. As a result, unless the examining body is able to demonstrate",
that the answer-books fall under the exempted category of information,
"described in clause (e) of section 8(1) of RTI Act, the examining body will",
be bound to provide access to an examinee to inspect and take copies of his,
"evaluated answer-books, even if such inspection or taking copies is barred",
under the rules/bye-laws of the examining body governing the examinations.,
"Therefore, the decision of this Court in Maharashtra State Board (supra)",
"and the subsequent decisions following the same, will not affect or interfere",
with the right of the examinee seeking inspection of answer-books or taking,
certified copies thereof.,
Re : Question (iii),
19. Section 8(1) enumerates the categories of information which are,
exempted from disclosure under the provisions of the RTI Act. The,
29,
examining bodies rely upon clause (e) of section 8(1) which provides that,
"there shall be no obligation on any public authority to give any citizen,",
information available to it in its fiduciary relationship. This exemption is,
subject to the condition that if the competent authority (as defined in section,
2(e) of RTI Act) is satisfied that the larger public interest warrants the,
"disclosure of such information, the information will have to be disclosed.",
Therefore the question is whether the examining body holds the evaluated,
answer-books in its fiduciary relationship.,
20. The term ‘fiduciary’ and ‘fiduciary relationship’ refer to different,
"capacities and relationship, involving a common duty or obligation.",
"20.1) Black’s Law Dictionary (7th Edition, Page 640) defines ‘fiduciary",
relationship’ thus:,
“A relationship in which one person is under a duty to act for the benefit,
of the other on matters within the scope of the relationship. Fiduciary,
"relationships – such as trustee-beneficiary, guardian-ward, agent-principal,",
and attorney-client – require the highest duty of care. Fiduciary,
relationships usually arise in one of four situations : (1) when one person,
"places trust in the faithful integrity of another, who as a result gains",
"superiority or influence over the first, (2) when one person assumes",
"control and responsibility over another, (3) when one person has a duty to",
act for or give advice to another on matters falling within the scope of the,
"relationship, or (4) when there is a specific relationship that has",
"traditionally been recognized as involving fiduciary duties, as with a",
lawyer and a client or a stockbroker and a customer.”,
30,
20.2) The American Restatements (Trusts and Agency) define ‘fiduciary’ as,
one whose intention is to act for the benefit of another as to matters relevant,
to the relation between them. The Corpus Juris Secundum (Vol. 36A page,
381) attempts to define fiduciary thus :,
“A general definition of the word which is sufficiently comprehensive to,
"embrace all cases cannot well be given. The term is derived from the civil,",
"or Roman, law. It connotes the idea of trust or confidence, contemplates",
"good faith, rather than legal obligation, as the basis of the transaction,",
"refers to the integrity, the fidelity, of the party trusted, rather than his",
"credit or ability, and has been held to apply to all persons who occupy a",
"position of peculiar confidence toward others, and to include those",
informal relations which exist whenever one party trusts and relies on,
"another, as well as technical fiduciary relations.",
"The word ‘fiduciary,’ as a noun, means one who holds a thing in trust for",
"another, a trustee, a person holding the character of a trustee, or a",
"character analogous to that of a trustee, with respect to the trust and",
confidence involved in it and the scrupulous good faith and candor which,
"it requires; a person having the duty, created by his undertaking, to act",
primarily for another’s benefit in matters connected with such,
"undertaking. Also more specifically, in a statute, a guardian, trustee,",
"executor, administrator, receiver, conservator, or any person acting in any",
"fiduciary capacity for any person, trust, or estate. Some examples of what,",
"in particular connections, the term has been held to include and not to",
include are set out in the note.”,
"20.3) Words and Phrases, Permanent Edition (Vol. 16A, Page 41) defines",
‘fiducial relation’ thus :,
“There is a technical distinction between a ‘fiducial relation’ which is,
"more correctly applicable to legal relationships between parties, such as",
"guardian and ward, administrator and heirs, and other similar",
"relationships, and ‘confidential relation’ which includes the legal",
"relationships, and also every other relationship wherein confidence is",
rightly reposed and is exercised.,
"Generally, the term ‘fiduciary’ applies to any person who occupies a",
position of peculiar confidence towards another. It refers to integrity and,
31,
"fidelity. It contemplates fair dealing and good faith, rather than legal",
"obligation, as the basis of the transaction. The term includes those",
informal relations which exist whenever one party trusts and relies upon,
"another, as well as technical fiduciary relations.”",
20.4) In Bristol and West Building Society vs. Mothew [1998 Ch. 1] the term,
fiduciary was defined thus :,
“A fiduciary is someone who has undertaken to act for and on behalf of,
another in a particular matter in circumstances which give rise to a,
relationship of trust and confidence. The distinguishing obligation of a,
fiduciary is the obligation of loyalty….. A fiduciary must act in good faith;,
he must not make a profit out of his trust; he must not place himself in a,
position where his duty and his interest may conflict; he may not act for,
his own benefit or the benefit of a third person without the informed,
consent of his principal.”,
"20.5) In Wolf vs. Superior Court [2003 (107) California Appeals, 4th 25] the",
California Court of Appeals defined fiduciary relationship as under :,
“any relationship existing between the parties to the transaction where one,
of the parties is duty bound to act with utmost good faith for the benefit of,
the other party. Such a relationship ordinarily arises where confidence is,
"reposed by one person in the integrity of another, and in such a relation the",
"party in whom the confidence is reposed, if he voluntarily accepts or",
"assumes to accept the confidence, can take no advantage from his acts",
relating to the interests of the other party without the latter’s knowledge,
and consent.”,
21. The term ‘fiduciary’ refers to a person having a duty to act for the,
"benefit of another, showing good faith and condour, where such other person",
reposes trust and special confidence in the person owing or discharging the,
duty. The term ‘fiduciary relationship’ is used to describe a situation or,
32,
transaction where one person (beneficiary) places complete confidence in,
"another person (fiduciary) in regard to his affairs, business or transaction/s.",
The term also refers to a person who holds a thing in trust for another,
(beneficiary). The fiduciary is expected to act in confidence and for the,
"benefit and advantage of the beneficiary, and use good faith and fairness in",
dealing with the beneficiary or the things belonging to the beneficiary. If the,
"beneficiary has entrusted anything to the fiduciary, to hold the thing in trust",
"or to execute certain acts in regard to or with reference to the entrusted thing,",
the fiduciary has to act in confidence and expected not to disclose the thing,
or information to any third party. There are also certain relationships where,
both the parties have to act in a fiduciary capacity treating the other as the,
beneficiary. Examples of these are : a partner vis-à-vis another partner and,
an employer vis-à-vis employee. An employee who comes into possession,
of business or trade secrets or confidential information relating to the,
"employer in the course of his employment, is expected to act as a fiduciary",
"and cannot disclose it to others. Similarly, if on the request of the employer",
"or official superior or the head of a department, an employee furnishes his",
"personal details and information, to be retained in confidence, the employer,",
the official superior or departmental head is expected to hold such personal,
"information in confidence as a fiduciary, to be made use of or disclosed only",
33,
if the employee’s conduct or acts are found to be prejudicial to the employer.,
"22. In a philosophical and very wide sense, examining bodies can be said",
"to act in a fiduciary capacity, with reference to students who participate in an",
"examination, as a government does while governing its citizens or as the",
present generation does with reference to the future generation while,
preserving the environment. But the words ‘information available to a,
person in his fiduciary relationship’ are used in section 8(1)(e) of RTI Act in,
"its normal and well recognized sense, that is to refer to persons who act in a",
"fiduciary capacity, with reference to a specific beneficiary or beneficiaries",
who are to be expected to be protected or benefited by the actions of the,
"fiduciary – a trustee with reference to the beneficiary of the trust, a guardian",
"with reference to a minor/physically/infirm/mentally challenged, a parent",
"with reference to a child, a lawyer or a chartered accountant with reference",
"to a client, a doctor or nurse with reference to a patient, an agent with",
"reference to a principal, a partner with reference to another partner, a",
"director of a company with reference to a share-holder, an executor with",
"reference to a legatee, a receiver with reference to the parties to a lis, an",
employer with reference to the confidential information relating to the,
"employee, and an employee with reference to business dealings/transaction",
of the employer. We do not find that kind of fiduciary relationship between,
34,
"the examining body and the examinee, with reference to the evaluated",
"answer-books, that come into the custody of the examining body.",
23. The duty of examining bodies is to subject the candidates who have,
completed a course of study or a period of training in accordance with its,
"curricula, to a process of verification/examination/testing of their",
"knowledge, ability or skill, or to ascertain whether they can be said to have",
successfully completed or passed the course of study or training. Other,
specialized Examining Bodies may simply subject candidates to a process of,
"verification by an examination, to find out whether such person is suitable",
"for a particular post, job or assignment. An examining body, if it is a public",
"authority entrusted with public functions, is required to act fairly,",
"reasonably, uniformly and consistently for public good and in public",
interest. This Court has explained the role of an examining body in regard to,
the process of holding examination in the context of examining whether it,
"amounts to ‘service’ to a consumer, in Bihar School Examination Board vs.",
"Suresh Prasad Sinha – (2009) 8 SCC 483, in the following manner:",
"“The process of holding examinations, evaluating answer scripts,",
declaring results and issuing certificates are different stages of a single,
statutory non-commercial function. It is not possible to divide this,
function as partly statutory and partly administrative. When the,
Examination Board conducts an examination in discharge of its statutory,
"function, it does not offer its ""services"" to any candidate. Nor does a",
35,
"student who participates in the examination conducted by the Board, hires",
or avails of any service from the Board for a consideration. On the other,
"hand, a candidate who participates in the examination conducted by the",
"Board, is a person who has undergone a course of study and who requests",
the Board to test him as to whether he has imbibed sufficient knowledge to,
be fit to be declared as having successfully completed the said course of,
"education; and if so, determine his position or rank or competence vis-a-",
vis other examinees. The process is not therefore availment of a service by,
"a student, but participation in a general examination conducted by the",
Board to ascertain whether he is eligible and fit to be considered as having,
successfully completed the secondary education course. The examination,
fee paid by the student is not the consideration for availment of any,
"service, but the charge paid for the privilege of participation in the",
examination.……… The fact that in the course of conduct of the,
"examination, or evaluation of answer-scripts, or furnishing of mark-books",
"or certificates, there may be some negligence, omission or deficiency,",
"does not convert the Board into a service-provider for a consideration, nor",
convert the examinee into a consumer ………”,
It cannot therefore be said that the examining body is in a fiduciary,
relationship either with reference to the examinee who participates in the,
examination and whose answer-books are evaluated by the examining body.,
24. We may next consider whether an examining body would be entitled,
"to claim exemption under section 8(1)(e) of the RTI Act, even assuming that",
it is in a fiduciary relationship with the examinee. That section provides that,
"notwithstanding anything contained in the Act, there shall be no obligation",
to give any citizen information available to a person in his fiduciary,
"relationship. This would only mean that even if the relationship is fiduciary,",
the exemption would operate in regard to giving access to the information,
36,
"held in fiduciary relationship, to third parties. There is no question of the",
"fiduciary withholding information relating to the beneficiary, from the",
beneficiary himself. One of the duties of the fiduciary is to make thorough,
disclosure of all relevant facts of all transactions between them to the,
"beneficiary, in a fiduciary relationship. By that logic, the examining body, if",
"it is in a fiduciary relationship with an examinee, will be liable to make a full",
disclosure of the evaluated answer-books to the examinee and at the same,
"time, owe a duty to the examinee not to disclose the answer-books to anyone",
"else. If A entrusts a document or an article to B to be processed, on",
"completion of processing, B is not expected to give the document or article",
to anyone else but is bound to give the same to A who entrusted the,
"document or article to B for processing. Therefore, if a relationship of",
fiduciary and beneficiary is assumed between the examining body and the,
"examinee with reference to the answer-book, section 8(1)(e) would operate",
as an exemption to prevent access to any third party and will not operate as a,
"bar for the very person who wrote the answer-book, seeking inspection or",
disclosure of it.,
25. An evaluated answer book of an examinee is a combination of two,
different ‘informations’. The first is the answers written by the examinee and,
37,
second is the marks/assessment by the examiner. When an examinee seeks,
inspection of his evaluated answer-books or seeks a certified copy of the,
"evaluated answer-book, the information sought by him is not really the",
"answers he has written in the answer-books (which he already knows), nor",
the total marks assigned for the answers (which has been declared). What he,
"really seeks is the information relating to the break-up of marks, that is, the",
specific marks assigned to each of his answers. When an examinee seeks,
"‘information’ by inspection/certified copies of his answer-books, he knows",
the contents thereof being the author thereof. When an examinee is,
"permitted to examine an answer-book or obtain a certified copy, the",
examining body is not really giving him some information which is held by,
"it in trust or confidence, but is only giving him an opportunity to read what",
he had written at the time of examination or to have a copy of his answers.,
"Therefore, in furnishing the copy of an answer-book, there is no question of",
"breach of confidentiality, privacy, secrecy or trust. The real issue therefore is",
not in regard to the answer-book but in regard to the marks awarded on,
evaluation of the answer-book. Even here the total marks given to the,
examinee in regard to his answer-book are already declared and known to,
the examinee. What the examinee actually wants to know is the break-up of,
"marks given to him, that is how many marks were given by the examiner to",
38,
each of his answers so that he can assess how is performance has been,
evaluated and whether the evaluation is proper as per his hopes and,
"expectations. Therefore, the test for finding out whether the information is",
"exempted or not, is not in regard to the answer book but in regard to the",
evaluation by the examiner.,
26. This takes us to the crucial issue of evaluation by the examiner. The,
examining body engages or employs hundreds of examiners to do the,
evaluation of thousands of answer books. The question is whether the,
information relating to the ‘evaluation’ (that is assigning of marks) is held,
by the examining body in a fiduciary relationship. The examining bodies,
contend that even if fiduciary relationship does not exist with reference to,
"the examinee, it exists with reference to the examiner who evaluates the",
answer-books. On a careful examination we find that this contention has no,
merit. The examining body entrusts the answer-books to an examiner for,
evaluation and pays the examiner for his expert service. The work of,
evaluation and marking the answer-book is an assignment given by the,
examining body to the examiner which he discharges for a consideration.,
"Sometimes, an examiner may assess answer-books, in the course of his",
"employment, as a part of his duties without any specific or special",
39,
remuneration. In other words the examining body is the ‘principal’ and the,
"examiner is the agent entrusted with the work, that is, evaluation of answer-",
"books. Therefore, the examining body is not in the position of a fiduciary",
"with reference to the examiner. On the other hand, when an answer-book is",
"entrusted to the examiner for the purpose of evaluation, for the period the",
answer-book is in his custody and to the extent of the discharge of his,
"functions relating to evaluation, the examiner is in the position of a fiduciary",
with reference to the examining body and he is barred from disclosing the,
contents of the answer-book or the result of evaluation of the answer-book to,
anyone other than the examining body. Once the examiner has evaluated the,
"answer books, he ceases to have any interest in the evaluation done by him.",
"He does not have any copy-right or proprietary right, or confidentiality right",
in regard to the evaluation. Therefore it cannot be said that the examining,
"body holds the evaluated answer books in a fiduciary relationship, qua the",
examiner.,
"27. We, therefore, hold that an examining body does not hold the",
evaluated answer-books in a fiduciary relationship. Not being information,
"available to an examining body in its fiduciary relationship, the exemption",
under section 8(1)(e) is not available to the examining bodies with reference,
to evaluated answer-books. As no other exemption under section 8 is,
40,
"available in respect of evaluated answer books, the examining bodies will",
have to permit inspection sought by the examinees.,
Re : Question (iv),
28. When an examining body engages the services of an examiner to,
"evaluate the answer-books, the examining body expects the examiner not to",
disclose the information regarding evaluation to anyone other than the,
examining body. Similarly the examiner also expects that his name and,
particulars would not be disclosed to the candidates whose answer-books are,
"evaluated by him. In the event of such information being made known, a",
disgruntled examinee who is not satisfied with the evaluation of the answer,
"books, may act to the prejudice of the examiner by attempting to endanger",
"his physical safety. Further, any apprehension on the part of the examiner",
"that there may be danger to his physical safety, if his identity becomes",
"known to the examinees, may come in the way of effective discharge of his",
"duties. The above applies not only to the examiner, but also to the",
"scrutiniser, co-ordinator, and head-examiner who deal with the answer book.",
The answer book usually contains not only the signature and code number of,
"the examiner, but also the signatures and code number of the scrutiniser/co-",
ordinator/head examiner. The information as to the names or particulars of,
the examiners/co-ordinators/scrutinisers/head examiners are therefore,
41,
"exempted from disclosure under section 8(1)(g) of RTI Act, on the ground",
"that if such information is disclosed, it may endanger their physical safety.",
"Therefore, if the examinees are to be given access to evaluated answer-",
"books either by permitting inspection or by granting certified copies, such",
access will have to be given only to that part of the answer-book which does,
not contain any information or signature of the examiners/co-,
"ordinators/scrutinisers/head examiners, exempted from disclosure under",
section 8(1)(g) of RTI Act. Those portions of the answer-books which,
contain information regarding the examiners/co-ordinators/scrutinisers/head,
examiners or which may disclose their identity with reference to signature or,
"initials, shall have to be removed, covered, or otherwise severed from the",
"non-exempted part of the answer-books, under section 10 of RTI Act.",
29. The right to access information does not extend beyond the period,
during which the examining body is expected to retain the answer-books. In,
"the case of CBSE, the answer-books are required to be maintained for a",
period of three months and thereafter they are liable to be disposed,
of/destroyed. Some other examining bodies are required to keep the answer-,
books for a period of six months. The fact that right to information is,
available in regard to answer-books does not mean that answer-books will,
have to be maintained for any longer period than required under the rules,
42,
and regulations of the public authority. The obligation under the RTI Act is,
to make available or give access to existing information or information,
which is expected to be preserved or maintained. If the rules and regulations,
governing the functioning of the respective public authority require,
"preservation of the information for only a limited period, the applicant for",
information will be entitled to such information only if he seeks the,
"information when it is available with the public authority. For example, with",
"reference to answer-books, if an examinee makes an application to CBSE for",
inspection or grant of certified copies beyond three months (or six months or,
such other period prescribed for preservation of the records in regard to,
"other examining bodies) from the date of declaration of results, the",
application could be rejected on the ground that such information is not,
available. The power of the Information Commission under section 19(8) of,
the RTI Act to require a public authority to take any such steps as may be,
"necessary to secure compliance with the provision of the Act, does not",
"include a power to direct the public authority to preserve the information, for",
any period larger than what is provided under the rules and regulations of the,
public authority.,
"30. On behalf of the respondents/examinees, it was contended that having",
"regard to sub-section (3) of section 8 of RTI Act, there is an implied duty on",
43,
the part of every public authority to maintain the information for a minimum,
period of twenty years and make it available whenever an application was,
made in that behalf. This contention is based on a complete misreading and,
misunderstanding of section 8(3). The said sub-section nowhere provides,
that records or information have to be maintained for a period of twenty,
years. The period for which any particular records or information has to be,
maintained would depend upon the relevant statutory rule or regulation of,
the public authority relating to the preservation of records. Section 8(3),
"provides that information relating to any occurrence, event or matters which",
has taken place and occurred or happened twenty years before the date on,
"which any request is made under section 6, shall be provided to any person",
making a request. This means that where any information required to be,
maintained and preserved for a period beyond twenty years under the rules,
"of the public authority, is exempted from disclosure under any of the",
"provisions of section 8(1) of RTI Act, then, notwithstanding such",
"exemption, access to such information shall have to be provided by",
"disclosure thereof, after a period of twenty years except where they relate to",
"information falling under clauses (a), (c) and (i) of section 8(1). In other",
"words, section 8(3) provides that any protection against disclosure that may",
"be available, under clauses (b), (d) to (h) and (j) of section 8(1) will cease to",
44,
be available after twenty years in regard to records which are required to be,
preserved for more than twenty years. Where any record or information is,
required to be destroyed under the rules and regulations of a public authority,
"prior to twenty years, section 8(3) will not prevent destruction in accordance",
with the Rules. Section 8(3) of RTI Act is not therefore a provision requiring,
"all ‘information’ to be preserved and maintained for twenty years or more,",
nor does it override any rules or regulations governing the period for which,
"the record, document or information is required to be preserved by any",
public authority.,
31. The effect of the provisions and scheme of the RTI Act is to divide,
‘information’ into the three categories. They are :,
(i) Information which promotes transparency and accountability in,
"the working of every public authority, disclosure of which may",
also help in containing or discouraging corruption (enumerated in,
clauses (b) and (c) of section 4(1) of RTI Act).,
(ii) Other information held by public authority (that is all information,
other than those falling under clauses (b) and (c) of section 4(1) of,
RTI Act).,
(iii) Information which is not held by or under the control of any,
public authority and which cannot be accessed by a public,
authority under any law for the time being in force.,
Information under the third category does not fall within the scope of RTI,
"Act. Section 3 of RTI Act gives every citizen, the right to ‘information’ held",
45,
"by or under the control of a public authority, which falls either under the first",
or second category. In regard to the information falling under the first,
"category, there is also a special responsibility upon public authorities to suo",
moto publish and disseminate such information so that they will be easily,
and readily accessible to the public without any need to access them by,
having recourse to section 6 of RTI Act. There is no such obligation to,
publish and disseminate the other information which falls under the second,
category.,
"32. The information falling under the first category, enumerated in",
sections 4(1)(b) & (c) of RTI Act are extracted below :,
“4. Obligations of public authorities.-(1) Every public authority shall--,
(a) xxxxxx,
(b) publish within one,
"hundred and twenty days from the enactment of this Act,--",
"(i) the particulars of its organisation, functions and duties;",
(ii) the powers and duties of its officers and employees;,
(iii) the procedure followed in the decision making,
"process, including channels of supervision and",
accountability;,
(iv) the norms set by it for the discharge of its functions;,
"(v) the rules, regulations, instructions, manuals and records,",
held by it or under its control or used by its employees for,
discharging its functions;,
(vi) a statement of the categories of documents that are held,
by it or under its control;,
46,
(vii) the particulars of any arrangement that exists for,
"consultation with, or representation by, the members of the",
public in relation to the formulation of its policy or,
implementation thereof;,
"(viii) a statement of the boards, councils, committees and",
other bodies consisting of two or more persons constituted,
"as its part or for the purpose of its advice, and as to whether",
"meetings of those boards, councils, committees and other",
"bodies are open to the public, or the minutes of such",
meetings are accessible for public;,
(ix) a directory of its officers and employees;,
(x) the monthly remuneration received by each of its,
"officers and employees, including the system of",
compensation as provided in its regulations;,
"(xi) the budget allocated to each of its agency, indicating",
"the particulars of all plans, proposed expenditures and",
reports on disbursements made;,
"(xii) the manner of execution of subsidy programmes,",
including the amounts allocated and the details of,
beneficiaries of such programmes;,
"(xiii) particulars of recipients of concessions, permits or",
authorisations granted by it;,
"(xiv) details in respect of the information, available to or",
"held by it, reduced in an electronic form;",
(xv) the particulars of facilities available to citizens for,
"obtaining information, including the working hours of a",
"library or reading room, if maintained for public use;",
"(xvi) the names, designations and other particulars of the",
Public Information Officers;,
(xvii) such other information as may be prescribed; and,
thereafter update these publications every year;,
(c) publish all relevant facts,
while formulating important policies or announcing the decisions,
which affect public;,
(emphasis supplied),
47,
"Sub-sections (2), (3) and (4) of section 4 relating to dissemination of",
information enumerated in sections 4(1)(b) & (c) are extracted below:,
“(2) It shall be a constant endeavour of every public,
authority to take steps in accordance with the requirements of clause (b) of,
sub-section (1) to provide as much information suo motu to the public,
"at regular intervals through various means of communications,",
"including internet, so that the public have minimum resort to the use",
of this Act to obtain information.,
"(3) For the purposes of sub-section (1), every",
information shall be disseminated widely and in such form and,
manner which is easily accessible to the public.,
(4) All materials shall be disseminated taking into,
"consideration the cost effectiveness, local language and the most effective",
method of communication in that local area and the information should be,
"easily accessible, to the extent possible in electronic format with the",
"Central Public Information Officer or State Public Information Officer, as",
"the case may be, available free or at such cost of the medium or the print",
cost price as may be prescribed.,
"Explanation.--For the purposes of sub-sections (3) and (4), ""disseminated""",
means making known or communicated the information to the public,
"through notice boards, newspapers, public announcements, media",
"broadcasts, the internet or any other means, including inspection of offices",
of any public authority.”,
(emphasis supplied),
33. Some High Courts have held that section 8 of RTI Act is in the nature,
of an exception to section 3 which empowers the citizens with the right to,
"information, which is a derivative from the freedom of speech; and that",
"therefore section 8 should be construed strictly, literally and narrowly. This",
may not be the correct approach. The Act seeks to bring about a balance,
"between two conflicting interests, as harmony between them is essential for",
preserving democracy. One is to bring about transparency and accountability,
by providing access to information under the control of public authorities.,
48,
"The other is to ensure that the revelation of information, in actual practice,",
does not conflict with other public interests which include efficient operation,
"of the governments, optimum use of limited fiscal resources and",
preservation of confidentiality of sensitive information. The preamble to the,
Act specifically states that the object of the Act is to harmonise these two,
conflicting interests. While sections 3 and 4 seek to achieve the first,
"objective, sections 8, 9, 10 and 11 seek to achieve the second objective.",
"Therefore when section 8 exempts certain information from being disclosed,",
"it should not be considered to be a fetter on the right to information, but as",
an equally important provision protecting other public interests essential for,
the fulfilment and preservation of democratic ideals.,
34. When trying to ensure that the right to information does not conflict,
with several other public interests (which includes efficient operations of the,
"governments, preservation of confidentiality of sensitive information,",
"optimum use of limited fiscal resources, etc.), it is difficult to visualise and",
enumerate all types of information which require to be exempted from,
disclosure in public interest. The legislature has however made an attempt to,
do so. The enumeration of exemptions is more exhaustive than the,
enumeration of exemptions attempted in the earlier Act that is section 8 of,
"Freedom to Information Act, 2002. The Courts and Information",
49,
Commissions enforcing the provisions of RTI Act have to adopt a purposive,
"construction, involving a reasonable and balanced approach which",
"harmonises the two objects of the Act, while interpreting section 8 and the",
other provisions of the Act.,
"35. At this juncture, it is necessary to clear some misconceptions about",
the RTI Act. The RTI Act provides access to all information that is,
available and existing. This is clear from a combined reading of section 3,
and the definitions of ‘information’ and ‘right to information’ under clauses,
(f) and (j) of section 2 of the Act. If a public authority has any information in,
"the form of data or analysed data, or abstracts, or statistics, an applicant may",
"access such information, subject to the exemptions in section 8 of the Act.",
But where the information sought is not a part of the record of a public,
"authority, and where such information is not required to be maintained under",
"any law or the rules or regulations of the public authority, the Act does not",
"cast an obligation upon the public authority, to collect or collate such non-",
available information and then furnish it to an applicant. A public authority,
is also not required to furnish information which require drawing of,
inferences and/or making of assumptions. It is also not required to provide,
"‘advice’ or ‘opinion’ to an applicant, nor required to obtain and furnish any",
‘opinion’ or ‘advice’ to an applicant. The reference to ‘opinion’ or ‘advice’,
50,
"in the definition of ‘information’ in section 2(f) of the Act, only refers to",
such material available in the records of the public authority. Many public,
"authorities have, as a public relation exercise, provide advice, guidance and",
opinion to the citizens. But that is purely voluntary and should not be,
confused with any obligation under the RTI Act.,
36. Section 19(8) of RTI Act has entrusted the Central/State Information,
"Commissions, with the power to require any public authority to take any",
such steps as may be necessary to secure the compliance with the provisions,
"of the Act. Apart from the generality of the said power, clause (a) of section",
"19(8) refers to six specific powers, to implement the provision of the Act.",
Sub-clause (i) empowers a Commission to require the public authority to,
provide access to information if so requested in a particular ‘form’ (that is,
"either as a document, micro film, compact disc, pendrive, etc.). This is to",
secure compliance with section 7(9) of the Act. Sub-clause (ii) empowers a,
Commission to require the public authority to appoint a Central Public,
Information Officer or State Public Information Officer. This is to secure,
compliance with section 5 of the Act. Sub-clause (iii) empowers the,
Commission to require a public authority to publish certain information or,
categories of information. This is to secure compliance with section 4(1) and,
(2) of RTI Act. Sub-clause (iv) empowers a Commission to require a public,
51,
authority to make necessary changes to its practices relating to the,
"maintenance, management and destruction of the records. This is to secure",
compliance with clause (a) of section 4(1) of the Act. Sub-clause (v),
empowers a Commission to require the public authority to increase the,
training for its officials on the right to information. This is to secure,
"compliance with sections 5, 6 and 7 of the Act. Sub-clause (vi) empowers a",
Commission to require the public authority to provide annual reports in,
regard to the compliance with clause (b) of section 4(1). This is to ensure,
compliance with the provisions of clause (b) of section 4(1) of the Act. The,
power under section 19(8) of the Act however does not extend to requiring a,
public authority to take any steps which are not required or contemplated to,
secure compliance with the provisions of the Act or to issue directions,
beyond the provisions of the Act. The power under section 19(8) of the Act,
is intended to be used by the Commissions to ensure compliance with the,
"Act, in particular ensure that every public authority maintains its records",
duly catalogued and indexed in the manner and in the form which facilitates,
"the right to information and ensure that the records are computerized, as",
required under clause (a) of section 4(1) of the Act; and to ensure that the,
information enumerated in clauses (b) and (c) of sections 4(1) of the Act are,
"published and disseminated, and are periodically updated as provided in sub-",
52,
sections (3) and (4) of section 4 of the Act. If the ‘information’ enumerated,
in clause (b) of section 4(1) of the Act are effectively disseminated (by,
"publications in print and on websites and other effective means), apart from",
"providing transparency and accountability, citizens will be able to access",
relevant information and avoid unnecessary applications for information,
under the Act.,
37. The right to information is a cherished right. Information and right to,
information are intended to be formidable tools in the hands of responsible,
citizens to fight corruption and to bring in transparency and accountability.,
The provisions of RTI Act should be enforced strictly and all efforts should,
be made to bring to light the necessary information under clause (b) of,
section 4(1) of the Act which relates to securing transparency and,
accountability in the working of public authorities and in discouraging,
"corruption. But in regard to other information,(that is information other than",
"those enumerated in section 4(1)(b) and (c) of the Act), equal importance",
and emphasis are given to other public interests (like confidentiality of,
"sensitive information, fidelity and fiduciary relationships, efficient operation",
"of governments, etc.). Indiscriminate and impractical demands or directions",
under RTI Act for disclosure of all and sundry information (unrelated to,
transparency and accountability in the functioning of public authorities and,
53,
eradication of corruption) would be counter-productive as it will adversely,
affect the efficiency of the administration and result in the executive getting,
bogged down with the non-productive work of collecting and furnishing,
"information. The Act should not be allowed to be misused or abused, to",
"become a tool to obstruct the national development and integration, or to",
"destroy the peace, tranquility and harmony among its citizens. Nor should it",
be converted into a tool of oppression or intimidation of honest officials,
striving to do their duty. The nation does not want a scenario where 75% of,
the staff of public authorities spends 75% of their time in collecting and,
furnishing information to applicants instead of discharging their regular,
duties. The threat of penalties under the RTI Act and the pressure of the,
authorities under the RTI Act should not lead to employees of a public,
"authorities prioritising ‘information furnishing’, at the cost of their normal",
and regular duties.,
Conclusion,
"38. In view of the foregoing, the order of the High Court directing the",
examining bodies to permit examinees to have inspection of their answer,
"books is affirmed, subject to the clarifications regarding the scope of the RTI",
54,
Act and the safeguards and conditions subject to which ‘information’ should,
be furnished. The appeals are disposed of accordingly.,
……………………….J,
[R. V. Raveendran],
……………………….J,
[A. K. Patnaik],
New Delhi;,
"August 9, 2011.",
|½,
IN THE SUPREME COURT OF INDIA,
CIVIL APPELLATE JURISDICTION,
CIVIL APPEAL NO. 6362 OF 2013,
(Arising out of SLP(C) No.16870/2012),
Union Public Service Commission ...Appellant,
versus,
Gourhari Kamila ...Respondent,
WITH,
CIVIL APPEAL NO. 6363 OF 2013,
(Arising out of SLP(C) No.16871/2012),
CIVIL APPEAL NO. 6364 OF 2013,
(Arising out of SLP(C) No.16872/2012),
CIVIL APPEAL NO. 6365 OF 2013,
(Arising out of SLP(C) No.16873/2012),
O R D E R,
Leave granted.,
These appeals are directed against judgment dated 12.12.2011 of the,
Division Bench of the Delhi High Court whereby the letters patent appeals,
"filed by appellant - Union Public Service Commission (for short, ’the",
Commission’) questioning the correctness of the orders passed by the,
learned Single Judge were dismissed and the directions given by the Chief,
Information Commissioner (CIC) to the Commission to provide information to,
the respondents about the candidates who had competed with them in the,
selection was upheld.,
For the sake of convenience we may notice the facts from the appeal,
arising out of SLP(C) No.16870/2012.,
"In response to advertisement No.13 issued by the Commission, the",
respondent applied for recruitment as Deputy Director (Ballistics) in,
"Central Forensic Science Laboratory, Ballistic Division under the",
"Directorate of Forensic Science, Ministry of Home Affairs. After the",
"selection process was completed, the respondent submitted application dated",
"17.3.2010 under the Right to Information Act, 2005 (for short, ’the Act’)",
for supply of following information/documents:,
"""1. What are the criteria for the short listing of the candidates?",
2. How many candidates have been called for the interview?,
3. Kindly provide the names of all the short listed candidates called,
for interview held on 16.3.2010.,
4. How many years of experience in the relevant field (Analytical,
methods and research in the field of Ballistics) mentioned in the,
advertisement have been considered for the short listing of the,
candidates for the interview held for the date on 16.3.2010?,
5. Kindly provide the certified xerox copies of experience,
certificates of all the candidates called for the interview on,
16.3.2010 who have claimed the experience in the relevant field as per,
records available in the UPSC and as mentioned by the candidates at,
Sl.No.10(B) of Part-I of their application who are called for the,
interview held on 16.3.2010.,
6. Kindly provide the certified xerox copies of M.Sc. and B.Sc. degree,
certificates of all the candidates as per records available in the,
UPSC who are called for the interview held on 16.3.2010.,
7. Kindly provide the certified xerox copies of UGC guidelines and the,
Govt. of India Gazette notification regarding whether the Degree in,
M.Sc. Applied Mathematics and the Degree in M.Sc. Mathematics are,
equivalent or not as per available records in the UPSC.,
8. Kindly provide the certified xerox copies of UGC guidelines and the,
Govt. of India Gazette notification regarding whether the Degree in,
M.Sc. Applied Physics and the Degree in M.Sc. Physics are equivalent,
"or not as per available records in the UPSC.""",
Deputy Secretary and Central Public Information Officer (CPIO) of the,
"Commission send reply dated 16.4.2010, the relevant portions of which are",
reproduced below:,
"""Point 1 to 4: As the case is subjudice in Central",
"Administrative Tribunal (Principal Bench),",
"Hyderabad, hence the information cannot be",
provided.,
Point 5 & 6: Photocopy of experience certificate and M.Sc. and,
B.Sc. degree certificates of called candidates,
cannot be given as the candidates have given their,
personal details to the Commission is a fiduciary,
relationship with expectation that this information,
"will not be disclosed to others. Hence, disclosures",
of personal information of candidates held in a,
fiduciary capacity is exempted from disclosures,
"under Section 8(l)(e) of the RTI Act, 2005. Further",
disclosures of these details to another candidate,
is not likely to serve any public interest of,
activity and hence is exempted under Section,
8(1)(j) of the said Act.,
"Point 7 & 8: For copy of UGC Guidelines and Gazette notification,",
"you may contact University Grant Commission,",
"directly, as UGC is a distinct public authority.""",
The respondent challenged the aforesaid communication by filing an,
"appeal under Section 19(1) of the Act, which was partly allowed by the",
Appellate Authority and a direction was given to the Commission to provide,
information sought by the respondent under point Nos. 1 to 3 of the,
application.,
"The order of the Appellate Authority did not satisfy the respondent,",
who filed further appeal under Section 19(3) of the Act. The CIC allowed,
the appeal and directed the Commission to supply the remaining information,
and the documents.,
The Commission challenged the order of the CIC in Writ Petition Civil,
"No. 3365/2011, which was summarily dismissed by the learned Single Judge of",
the High Court by making a cryptic observation that he is not inclined to,
interfere with the order of the CIC because the information asked for,
"cannot be treated as exempted under Section 8(1)(e), (g) or (j) of the Act.",
The letters patent appeal filed by the Commission was dismissed by the,
Division Bench of the High Court.,
"Ms. Binu Tamta, learned counsel for the Commission, relied upon the",
judgment in Central Board of Secondary Education and another v. Aditya,
Bandopadhyay and others (2011) 8 SCC 497 and argued that the CIC committed,
serious error by ordering supply of information and the documents relating,
to other candidates in violation of Section 8 of the Act which postulates,
exemption from disclosure of information made available to the Commission.,
She emphasised that relationship between the Commission and the candidates,
who applied for selection against the advertised post is based on trust and,
the Commission cannot be compelled to disclose the information and,
documents produced by the candidates more so because no public interest is,
involved in such disclosure. Ms. Tamta submitted that if view taken by the,
"High Court is treated as correct, then it will become impossible for the",
Commission to function because lakhs of candidates submit their,
applications for different posts advertised by the Commission. She placed,
before the Court 62nd Annual Report of the Commission for the year 2011-12,
to substantiate her statement.,
We have considered the argument of the learned counsel and,
scrutinized the record. In furtherance of the liberty given by the Court on,
"01.03.2013, Ms. Neera Sharma, Under Secretary of the Commission filed",
"affidavit dated 18.3.2013, paragraphs 2 and 3 of which read as under:",
"""2. That this Hon’ble Court vide order dated 1.3.2013 was pleased to",
grant three weeks’ time to the petitioner to produce a statement,
containing the details of various examinations and the number of,
candidates who applied and/or appeared in the written examination,
and/or interviewed. In response thereto it is submitted that during,
the year 2011-12 the Commission conducted following examinations:,
For Civil Services/Posts,
"a. Civil Services (Preliminary) Examination, 2011 (CSP)",
"b. Civil Services (Main) Examination, 2011 (CSM)",
"c. Indian Forest Service Examination, 2011 (IFo.S)",
"d. Engineering Services Examination, 2011 (ESE)",
"e. Indian Economic Service/Indian Statistical Service Examination,",
2011 (IES/ISS),
"f. Geologists’ Examination, 2011 (GEOL)",
"g. Special Class Railways Apprentices’ Examination, 2011 (SCRA)",
"h. Special Class Railways Apprentices’ Examination, 2011 (SCRA)",
"i. Central Police Forces (Assistant Commandants) Examination, 2011",
(CPF),
j. Central Industrial Security Force (Assistant Commandants) Limited,
"Departmental Competitive Examination, 2010 & 2011 (CISF).",
For Defence Services,
a. Two examinations for National Defence Academy and naval Academy,
(NDA & NA) - National Defence Academy and Naval Academy,
"Examination (I), 2011 and National Defence Academy and Naval",
"Academy Examination (II), 2011.",
b. Two examinations for Combined Defence Services (CDS) - Combined,
"Defence Services Examination (II), 2011 and Combined Defence",
"Services Examination (I), 2012.",
3. That in case of recruitment by examination during the year 2011-,
2012 the number of applications received by Union Public Service,
"Commission (UPSC) was 21,02,131 and the number of candidate who",
"appeared in the examination was 9,59,269. The number of candidates",
interviewed in 2011-2012 was 9938. 6863 candidates were recommended,
"for appointment during the said period.""",
Chapter 3 of the Annual Report of the Commission shows that during,
"the years 2009-10, 2010-11 and 2011-12 lakhs of applications were received",
for various examinations conducted by the Commission. The particulars of,
these examinations and the figures of the applications are given below:,
|Exam |2009-10 |2010-11 |2011-12 |,
|Civil | | | |,
|l. CS(P) |409110 |547698 |499120 |,
|2. CS(M) |11894 |12271 |11837 |,
|3. IFoS |43262 |59530 |67168 |,
|4. ESE |139751 |157649 |191869 |,
|5. IES/ISS |6989 |7525 |9799 |,
|6. SOLCE |- |2321 |- |,
|7. CMS | 33420 | 33875 |- |,
|8. GEOL |4919 |5262 |6037 |,
|9. CPF |111261 |135268 |162393 |,
"|10. CISF, LDCE |659 |- |729 |",
|11. SCRA |135539 |165038 | 197759 |,
| | | |190165 |,
|Total Civil |896804 |1126437 |1336876 |,
|Defence | | | |,
|l. NDA & NA (I) |277290 |374497 |317489 |,
|2. NDA & NA(II) |150514 |193264 |211082 |,
|3. CDS(II) |89604 |99017 |100043 |,
|4. CDS (I) | 86575 | 99815 |136641 |,
|Total Defence |603983 |766593 |765255 |,
|Grand Total |1500787 |1893030 |2102131 |,
"In Aditya Bandopadhyay’s case, this Court considered the question",
"whether examining bodies, like, CBSE are entitled to seek exemption under",
"Section 8(1)(e) of the Act. After analysing the provisions of the Act, the",
Court observed:,
"""There are also certain relationships where both the parties have to",
act in a fiduciary capacity treating the other as the beneficiary.,
Examples of these are: a partner vis-‘-vis another partner and an,
employer vis-‘-vis employee. An employee who comes into possession of,
business or trade secrets or confidential information relating to the,
"employer in the course of his employment, is expected to act as a",
"fiduciary and cannot disclose it to others. Similarly, if on the",
request of the employer or official superior or the head of a,
"department, an employee furnishes his personal details and",
"information, to be retained in confidence, the employer, the official",
superior or departmental head is expected to hold such personal,
"information in confidence as a fiduciary, to be made use of or",
disclosed only if the employee’s conduct or acts are found to be,
prejudicial to the employer.,
"In a philosophical and very wide sense, examining bodies can be said",
"to act in a fiduciary capacity, with reference to the students who",
"participate in an examination, as a Government does while governing",
its citizens or as the present generation does with reference to the,
future generation while preserving the environment. But the words,
"""information available to a person in his fiduciary relationship"" are",
used in Section 8(1)(e) of the RTI Act in its normal and well-,
"recognised sense, that is, to refer to persons who act in a fiduciary",
"capacity, with reference to a specific beneficiary or beneficiaries",
who are to be expected to be protected or benefited by the actions of,
the fiduciary-a trustee with reference to the beneficiary of the,
"trust, a guardian with reference to a minor/physically infirm/mentally",
"challenged, a parent with reference to a child, a lawyer or a",
"chartered accountant with reference to a client, a doctor or nurse",
"with reference to a patient, an agent with reference to a principal, a",
"partner with reference to another partner, a Director of a company",
"with reference to a shareholder, an executor with reference to a",
"legatee, a Receiver with reference to the parties to a lis, an",
employer with reference to the confidential information relating to,
"the employee, and an employee with reference to business",
dealings/transaction of the employer. We do not find that kind of,
"fiduciary relationship between the examining body and the examinee,",
"with reference to the evaluated answer books, that come into the",
custody of the examining body.,
This Court has explained the role of an examining body in regard to,
the process of holding examination in the context of examining whether,
"it amounts to ""service"" to a consumer, in Bihar School Examination",
Board v. Suresh Prasad Sinha (2009) 8 SCC 483 in the following,
manner:,
"""11. ... The process of holding examinations, evaluating answer",
"scripts, declaring results and issuing certificates are",
different stages of a single statutory non-commercial function.,
It is not possible to divide this function as partly statutory,
and partly administrative.,
12. When the Examination Board conducts an examination in,
"discharge of its statutory function, it does not offer its",
’services’ to any candidate. Nor does a student who participates,
"in the examination conducted by the Board, hire or avail of any",
"service from the Board for a consideration. On the other hand, a",
candidate who participates in the examination conducted by the,
"Board, is a person who has undergone a course of study and who",
requests the Board to test him as to whether he has imbibed,
sufficient knowledge to be fit to be declared as having,
"successfully completed the said course of education; and if so,",
determine his position or rank or competence vis-‘-vis other,
"examinees. The process is not, therefore, availment of a service",
"by a student, but participation in a general examination",
conducted by the Board to ascertain whether he is eligible and,
fit to be considered as having successfully completed the,
secondary education course. The examination fee paid by the,
"student is not the consideration for availment of any service,",
but the charge paid for the privilege of participation in the,
examination.,
13. ... The fact that in the course of conduct of the,
"examination, or evaluation of answer scripts, or furnishing of",
"marksheets or certificates, there may be some negligence,",
"omission or deficiency, does not convert the Board into a",
"service provider for a consideration, nor convert the examinee",
"into a consumer....""",
It cannot therefore be said that the examining body is in a fiduciary,
relationship either with reference to the examinee who participates in,
the examination and whose answer books are evaluated by the examining,
body.,
We may next consider whether an examining body would be entitled to,
"claim exemption under Section 8(1)(e) of the RTI Act, even assuming",
that it is in a fiduciary relationship with the examinee. That section,
"provides that notwithstanding anything contained in the Act, there",
shall be no obligation to give any citizen information available to a,
person in his fiduciary relationship. This would only mean that even,
"if the relationship is fiduciary, the exemption would operate in",
regard to giving access to the information held in fiduciary,
"relationship, to third parties. There is no question of the fiduciary",
"withholding information relating to the beneficiary, from the",
beneficiary himself.,
One of the duties of the fiduciary is to make thorough disclosure of,
all the relevant facts of all transactions between them to the,
"beneficiary, in a fiduciary relationship. By that logic, the examining",
"body, if it is in a fiduciary relationship with an examinee, will be",
liable to make a full disclosure of the evaluated answer books to the,
"examinee and at the same time, owe a duty to the examinee not to",
disclose the answer books to anyone else. If A entrusts a document or,
"an article to B to be processed, on completion of processing, B is not",
expected to give the document or article to anyone else but is bound,
to give the same to A who entrusted the document or article to B for,
"processing. Therefore, if a relationship of fiduciary and beneficiary",
is assumed between the examining body and the examinee with reference,
"to the answer book, Section 8(1)(e) would operate as an exemption to",
prevent access to any third party and will not operate as a bar for,
"the very person who wrote the answer book, seeking inspection or",
"disclosure of it.""",
(emphasis supplied),
"By applying the ratio of the aforesaid judgment, we hold that the CIC",
committed a serious illegality by directing the Commission to disclose the,
information sought by the respondent at point Nos. 4 and 5 and the High,
Court committed an error by approving his order.,
We may add that neither the CIC nor the High Court came to the,
conclusion that disclosure of the information relating to other candidates,
"was necessary in larger public interest. Therefore, the present case is not",
covered by the exception carved out in Section 8(1)(e) of the Act.,
"Before concluding, we may observe that in the appeal arising out of",
"SLP (C) No.16871/2012, respondent Naresh Kumar was a candidate for the post",
of Senior Scientific Officer (Biology) in Forensic Science Laboratory. He,
asked information about other three candidates who had competed with him,
and the nature of interviews. The appeal filed by him under Section 19(3),
was allowed by the CIC without assigning reasons. The writ petition filed,
by the Commission was dismissed by the learned Single Judge by recording a,
cryptic order and the letters patent appeal was dismissed by the Division,
"Bench. In the appeal arising out of SLP (C) No.16872/2012, respondent",
Udaya Kumara was a candidate for the post of Deputy Government counsel in,
"the Department of Legal Affairs, Ministry of Law and Justice. He sought",
information regarding all other candidates and orders similar to those,
passed in the other two cases were passed in his case as well. In the,
"appeal arising out of SLP (C) No.16873/2012, respondent N. Sugathan",
(retired Biologist) sough information on various issues including the,
candidates recommended for appointment on the posts of Senior Instructor,
(Fishery Biology) and Senior Instructor (Craft and Gear) in the Central,
"Institute of Fisheries, Nautical and Engineering Training. In his case",
"also, similar orders were passed by the CIC, the learned Single Judge and",
"the Division Bench of the High Court. Therefore, what we have observed qua",
the case of Gourhari Kamila would equally apply to the remaining three,
cases.,
"In the result, the appeals are allowed, the impugned judgment and the",
orders passed by the learned Single Judge and the CIC are set aside.,
.......................J.,
[G.S. SINGHVI],
.......................J.,
[V. GOPALA GOWDA],
NEW DELHI;,
"AUGUST 06, 2013.",
ITEM NO.26 COURT NO.2 SECTION XIV,
S U P R E M E C O U R T O F I N D I A,
RECORD OF PROCEEDINGS,
Petition(s) for Special Leave to Appeal (Civil) No(s).16870/2012,
(From the judgement and order dated 12/12/2011 in LPA No.803/2011 of The,
HIGH COURT OF DELHI AT N. DELHI),
U.P.S.C. Petitioner(s),
VERSUS,
GOURHARI KAMILA Respondent(s),
(With prayer for interim relief and office report ),
WITH,
SLP(C) NO. 16871 of 2012,
(With prayer for interim relief and office report),
SLP(C) NO. 16872 of 2012,
(With appln(s) for permission to file reply to the rejoinder and with,
prayer for interim relief and office report),
SLP(C) NO. 16873 of 2012,
(With prayer for interim relief and office report),
(for final disposal),
Date: 06/08/2013 These Petitions were called on for hearing,
today.,
CORAM :,
HON’BLE MR. JUSTICE G.S. SINGHVI,
HON’BLE MR. JUSTICE V. GOPALA GOWDA,
"For Petitioner(s) Ms. Binu Tamta,Adv.",
For Respondent(s) None,
UPON hearing counsel the Court made the following,
O R D E R,
Leave granted.,
The appeals are allowed in terms of the signed order.,
|(Parveen Kr.Chawla) | |(Usha Sharma) |,
|Court Master | |Court Master |,
| | | |,
[signed order is placed on the file],
-----------------------,
10,
\224Ú REPORTABLE,
IN THE SUPREME COURT OF INDIA,
CIVIL ORIGINAL JURISDICTION,
TRANSFERRED CASE (CIVIL) NO. 91 OF 2015,
(Arising out of Transfer Petition (Civil) No. 707 of 2012),
Reserve Bank of India ........Petitioner(s),
versus,
Jayantilal N. Mistry .....Respondent(s),
With,
TRANSFERRED CASE (CIVIL) NO. 92 OF 2015,
(Arising out of Transfer Petition (Civil) No. 708 of 2012),
I.C.I.C.I Bank Limited ........ Petitioner(s),
versus,
S.S. Vohra and others .........Respondent(s),
TRANSFERRED CASE (CIVIL) NO. 93 OF 2015,
(Arising out of Transfer Petition (Civil) No. 711 of 2012),
National Bank for Agriculture,
and Rural Development .........Petitioner(s),
versus,
Kishan Lal Mittal .........Respondent(s),
TRANSFERRED CASE (CIVIL) NO. 94 OF 2015,
(Arising out of Transfer Petition (Civil) No. 712 of 2012),
Reserve Bank of India ..........Petitioner(s),
versus,
P.P. Kapoor ..........Respondent(s),
Signature Not Verified,
Digitally signed by,
Sanjay Kumar,
Date: 2015.12.16,
13:23:34 IST,
Reason:,
1,
TRANSFERRED CASE (CIVIL) NO. 95 OF 2015,
(Arising out of Transfer Petition (Civil) No. 713 of 2012),
Reserve Bank of India ..........Petitioner(s),
versus,
Subhas Chandra Agrawal ..........Respondent(s),
TRANSFERRED CASE (CIVIL) NO. 96 OF 2015,
(Arising out of Transfer Petition (Civil) No. 715 of 2012),
Reserve Bank of India ..........Petitioner(s),
versus,
Raja M. Shanmugam ..........Respondent(s),
TRANSFERRED CASE (CIVIL) NO. 97 OF 2015,
(Arising out of Transfer Petition (Civil) No. 716 of 2012),
National Bank for Agriculture,
and Rural Development ..........Petitioner(s),
versus,
Sanjay Sitaram Kurhade ..........Respondent(s),
TRANSFERRED CASE (CIVIL) NO. 98 OF 2015,
(Arising out of Transfer Petition (Civil) No. 717 of 2012),
Reserve Bank of India ..........Petitioner(s),
versus,
K.P. Muralidharan Nair ...........Respondent(s),
TRANSFERRED CASE (CIVIL) NO. 99 OF 2015,
(Arising out of Transfer Petition (Civil) No. 718 of 2012),
Reserve Bank of India ..........Petitioner(s),
versus,
Ashwini Dixit ...........Respondent(s),
2,
TRANSFERRED CASE (CIVIL) NO. 100 OF 2015,
(Arising out of Transfer Petition (Civil) No. 709 of 2012),
Reserve Bank of India .........Petitioner(s),
versus,
A.Venugopal and another .........Respondent(s),
TRANSFERRED CASE (CIVIL) NO. 101 OF 2015,
(Arising out of Transfer Petition (Civil) No. 714 of 2012),
Reserve Bank of India .........Petitioner(s),
versus,
Dr. Mohan K. Patil and others .........Respondent(s),
JUDGMENT,
"M.Y. EQBAL, J.",
The main issue that arises for our consideration in these,
transferred cases is as to whether all the information sought,
"for under the Right to Information Act, 2005 can be denied by",
the Reserve Bank of India and other Banks to the public at,
"large on the ground of economic interest, commercial",
"confidence, fiduciary relationship with other Bank on the one",
hand and the public interest on the other. If the answer to,
"above question is in negative, then upto what extent the",
information can be provided under the 2005 Act.,
3,
2. It has been contended by the RBI that it carries out,
inspections of banks and financial institutions on regular,
basis and the inspection reports prepared by it contain a wide,
range of information that is collected in a fiduciary capacity.,
The facts in brief of the Transfer Case No.91 of 2015 are that,
"during May-June, 2010 the statutory inspection of Makarpura",
Industrial Estate Cooperative Bank Ltd. was conducted by RBI,
"under the Banking Regulation Act, 1949. Thereafter, in",
"October 2010, the Respondent sought following information",
"from the CPIO of RBI under the Act of 2005, reply to which is",
tabulated hereunder:,
Sr. No. Information sought Reply,
1. Procedure Rules and RBI is conducting inspections,
Regulations of Inspection under Section 35 of the B.R. Act,
being carried out on 1949 (AACS) at prescribed,
Co-operative Banks intervals.,
2. Last RBI investigation and The Information sought is,
audit report carried out by maintained by the bank in a,
Shri Santosh Kumar during fiduciary capacity and was,
"23rd April, 2010 to 6th May, obtained by Reserve Bank during",
2010 sent to Registrar of the the course of inspection of the,
Cooperative of the Gujarat bank and hence cannot be given to,
"State, Gandhinagar on the outsiders. Moreover, disclosure",
Makarpura Industrial Estate of such information may harm the,
Co-op Bank Ltd Reg. No.2808 interest of the bank & banking,
system. Such information is also,
exempt from disclosure under,
"Section 8(1) (a) & (e) of the RTI Act,",
4,
2005.,
3. Last 20 years inspection Same as at (2) above,
(carried out with name of,
inspector) report on above,
bank and action taken report.,
4. (i) Reports on all co-operative (i) Same as at (2) above,
banks gone on liquidation,
(ii) This information is not,
(ii) action taken against all available with the,
Directors and Managers for Department,
recovery of public funds and,
powers utilized by RBI and,
analysis and procedure,
adopted.,
5. Name of remaining No specific information has,
co-operative banks under been sought,
your observations against,
irregularities and action,
taken reports,
6. Period required to take No specific information has,
action and implementations been sought,
"3. On 30.3.2011, the First Appellate Authority disposed of",
the appeal of the respondent agreeing with the reply given by,
"CPIO in query No.2, 3 & first part of 4, relying on the decision",
of the Full Bench of CIC passed in the case of Ravin,
Ranchochodlal Patel and another vs. Reserve Bank of India.,
"Thereafter, in the second appeal preferred by the aggrieved",
"respondent, the Central Information Commission by the",
"impugned order dated 01.11.2011, directed RBI to provide",
5,
information as per records to the Respondent in relation to,
queries Nos.2 to 6 before 30.11.2011. Aggrieved by the,
"decision of the Central Information Commission (CIC),",
petitioner RBI moved the Delhi High Court by way of a Writ,
Petition inter alia praying for quashing of the aforesaid order of,
"the CIC. The High Court, while issuing notice, stayed the",
operation of the aforesaid order.,
"4. Similarly, in Transfer Case No. 92 of 2015, the",
Respondent sought following information from the CPIO of RBI,
"under the Act of 2005, reply to which is tabulated hereunder:",
Sr. Information sought Reply,
No.,
1. The Hon’ble FM made a In the absence of the specific,
"written statement on the Floor details, we are not able to provide",
of the House which inter alia any information.,
must have been made after,
verifying the records from RBI,
and the Bank must have the,
copy of the facts as reported,
by FM. Please supply copy of,
the note sent to FM,
2. The Hon’ble FM made a We do not have this information.,
statement that some of the,
"banks like SBI, ICICI Bank",
"Ltd, Bank of Baroda, Dena",
"Bank, HSBC Bank etc. were",
issued letter of displeasure for,
violating FEMA guidelines for,
opening of accounts where as,
some other banks were even,
6,
fined Rupees one crore for,
such violations. Please give,
me the names of the banks,
with details of violations,
committed by them.,
3. ‘Advisory Note’ issued to ICICI An Advisory Letter had been issued,
"Bank for account opened by to the bank in December, 2007 for",
some fraudsters at its Patna the bank’s Patna branch having,
Branch Information sought failed to (a) comply with the RBI,
"about ""exact nature of guidelines on customer",
"irregularities committed by the identification, opening/operating",
"bank under ""FEMA"". Also give customer accounts, (b) the bank",
list of other illegalities not having followed the normal,
committed by IBL and other banker’s prudence while opening,
details of offences committed an account in question.,
by IBL through various,
branches in India and abroad As regards the list of supervisory,
"along with action taken by the action taken by us, it may be",
Regulator including the names stated that the query is too general,
"and designations of his and not specific. Further, we may",
"officials branch name, type of state that Supervisory actions",
offence committed etc. The taken were based on the scrutiny,
exact nature of offences conducted under Section 35 of the,
committed by Patna Branch of Banking Regulation (BR) Act. The,
the bank and other branches information in the scrutiny report,
of the bank and names of his is held in fiduciary capacity and,
"officials involved, type of the disclosure of which can affect",
offence committed by them the economic interest of the,
and punishment awarded by country and also affect the,
"concerned authority, names commercial confidence of the",
and designation of the bank. And such information is,
"designated authority, who also exempt from disclosure under",
investigated the above case Section 8(1)(a)(d) & (e) of the RTI,
"and his findings and Act (extracts enclosed). We,",
"punishment awarded."" therefore, are unable to accede to",
your request.,
"4. Exact nature of irregularities In this regard, self explicit print",
committed by ICICI Bank in out taken from the website of,
Hong Kong Securities and Futures,
"Commission, Hong Kong is",
enclosed.,
5. ICICI Bank’s Moscow Branch We do not have the information.,
involved in money laundering,
act.,
6. Imposition of fine on ICICI We do not have any information to,
7,
Bank under Section 13 of the furnish in this regard.,
PMLA for loss of documents in,
floods .,
7. Copy of the Warning or As regards your request for,
‘Advisory Note’ issued twice copies/details of advisory letters to,
issued to the bank in the last,
"ICICI Bank, we may state that",
two years and reasonssuch information is exempt from,
recorded therein. disclosure under Section 8(1)(a)(d),
and (e) of the RTI Act. The,
Name and designation of the scrutiny of records of the ICICI,
authority who conducted this Bank is conducted by our,
check and his decision to Department of Banking,
issue an advisory note only Supervision (DBS). The Chief,
instead of penalties to be General Manager-in charge of the,
"imposed under the Act. DBS, Centre Office Reserve Bank",
of India is Shri S. Karuppasamy.,
"5. In this matter, it has been alleged by the petitioner RBI",
that the respondent is aggrieved on account of his application,
form for three-in-one account with the Bank and ICICI,
"Securities Limited (ISEC) lost in the floods in July, 2005 and",
"because of non-submission of required documents, the",
"Trading account with ISEC was suspended, for which",
"respondent approached the District Consumer Forum, which",
rejected the respondent’s allegations of tempering of records,
and dismissed the complaint of the respondent. His appeal,
was also dismissed by the State Commission. Respondent,
then moved an application under the Act of 2005 pertaining to,
8,
the suspension of operation of his said trading account. As,
the consumer complaint as well as the abovementioned,
"application did not yield any result for the respondent, he",
"made an application under the Act before the CPIO, SEBI,",
"appeal to which went up to the CIC, the Division Bench of",
which disposed of his appeal upholding the decision of the,
"CPIO and the Appellate Authority of SEBI. Thereafter, in",
"August 2009, respondent once again made the present",
application under the Act seeking aforesaid information.,
"Being aggrieved by the order of the appellate authority,",
"respondent moved second appeal before the CIC, who by the",
impugned order directed the CPIO of RBI to furnish,
information pertaining to Advisory Notes as requested by the,
"respondent within 15 working days. Hence, RBI approached",
Bombay High Court by way of writ petition.,
"6. In Transfer Case No. 93 of 2015, the Respondent sought",
following information from the CPIO of National Bank for,
"Agriculture and Rural Development under the Act of 2005,",
reply to which is tabulated hereunder:-,
9,
Sl. Information Sought Reply,
No.,
1. Copies of inspection reports of Furnishing of information is,
Apex Co-operative Banks of exempt under Section 8(1)(a) of the,
various States/Mumbai DCCB RTI Act.,
from 2005 till date,
2. Copies of all correspondences Different Departments in NABARD,
with Maharashtra State deal with various issues related to,
Govt./RBI/any other agency of MSCB. The query is general in,
State/Central Co-operative Bank nature. Applicant may please be,
"from January, 2010 till date. specific in query/information",
sought.,
3. Provide confirmed/draft minutes Furnishing of information is,
of meetings of Governing exempt under Sec. 8(1)(d) of the,
Board/Board of RTI Act.,
Directors/Committee of Directors,
"of NABARD from April, 2007 till",
date,
4. Provide information on Compliance available on the,
compliance of Section 4 of RTI website of NABARD i.e.,
"Act, 2005 by NABARD www.nabard.org",
5. Information may be provided on a -,
CD,
7. The First Appellate Authority concurred with the CPIO,
and held that inspection report cannot be supplied in terms of,
Section 8(1)(a) of the RTI Act. The Respondent filed Second,
"Appeal before the Central Information Commission, which was",
allowed. The RBI filed writ petition before the High Court,
challenging the order of the CIC dated 14.11.2011 on identical,
10,
issue and the High Court stayed the operation of the order of,
the CIC.,
"8. In Transfer Case No. 94 of 2015, the Respondent sought",
following information from the CPIO of RBI under the Act of,
"2005, reply to which is tabulated hereunder:",
Sl. Information Sought Reply,
No.,
1. As mentioned at 2(a) what is Pursuant to the then Finance,
RBI doing about uploading the Minister’s Budget Speech made in,
"entire list of Bank defaulters Parliament on 28th February, 1994,",
on the bank’s website? When in order to alert the banks and FIs,
will it be done? Why is it not and put them on guard against the,
done? defaulters to other lending,
institutions. RBI has put in place,
scheme to collect details about,
borrowers of banks and FIs with,
outstanding aggregating Rs. 1 crore,
and above which are classified as,
‘Doubtful’ or ‘Loss or where suits,
"are filed, as on 31st March and 30th",
September each year. In February,
"1999, Reserve Bank of India had",
also introduced a scheme for,
collection and dissemination of,
information on cases of willful,
default of borrowers with,
outstanding balance of Rs. 25 lakh,
"and above. At present, RBI",
disseminates list of above said non,
suit filed ‘doubtful’ and ‘loss’,
borrowed accounts of Rs.1 crore,
and above on half-yearly basis (i.e.,
as on March 31 and September 30),
to banks and FIs. for their,
confidential use. The list of,
non-suit filed accounts of willful,
defaulters of Rs. 25 lakh and above,
is also disseminated on quarterly,
11,
basis to banks and FIs for their,
confidential use. Section 45 E of,
the Reserve Bank of India Act 1934,
prohibits the Reserve Bank from,
disclosing ‘credit information’,
except in the manner provided,
therein.,
"(iii) However, Banks and FIs",
"were advised on October 1, 2002 to",
furnish information in respect of,
suit-filed accounts between Rs. 1,
lakh and Rs. 1 crore from the,
"period ended March, 2002 in a",
phased manner to CIBIL only.,
CIBIL is placing the list of,
defaulters (suit filed accounts) of,
Rs. 1 crore and above and list of,
willful defaulters (suit filed,
accounts) of Rs. 25 lakh and above,
"as on March 31, 2003 and onwards",
on its website (www.cibil.com),
9. The Central Information Commission heard the parties,
through video conferencing. The CIC directed the CPIO of the,
petitioner to provide information as per the records to the,
Respondent in relation to query Nos. 2(b) and 2(c) before,
10.12.2011. The Commission has also directed the Governor,
RBI to display this information on its website before,
"31.12.2011, in fulfillment of its obligations under Section 4(1)",
"(b) (xvii) of the Right to Information Act, 2005 and to update it",
each year.,
12,
"10. In Transfer Case No.95 of 2015, following information",
was sought and reply to it is tabulated hereunder:,
Sl. Information Sought Reply,
No.,
1. Complete and detailed information As the violations of which,
including related the banks were issued,
documents/correspondence/file Show Cause Notices and,
noting etc of RBI on imposing fines on subsequently imposed,
some banks for violating rules like also penalties and based on the,
referred in enclosed news clipping findings of the Annual,
Financial Inspection (AFI) of,
"2. Complete list of banks which were the banks, and the",
issued show cause notices before fine information is received by,
"was imposed as also referred in us in a fiduciary capacity,",
enclosed news clipping mentioning the disclosure of such,
also default for which show cause information would,
notice was issued to each of such prejudicially affect the,
banks economic interests of the,
State and harm the bank’s,
competitive position. The,
SCNs/findings/reports/,
associated,
correspondences/orders are,
therefore exempt from,
disclosure in terms of the,
provisions of Section 8(1)(a),
"(d) and (e) of the RTI Act,",
2005.,
2. Complete list of banks which were -do-,
issued show cause notices before fine,
was imposed as also referred in,
enclosed news clippings mentioning,
also default for which show cause,
notice was issued to each of such,
banks.,
3. List of banks out of those in query (2) Do,
above where fine was not imposed,
giving details like if their reply was,
satisfactory etc.,
4. List of banks which were ultimately The names of the 19 banks,
found guilty and fines mentioning also and details of penalty,
amount of fine on each of the bank imposed on them are,
13,
and criterion to decide fine on each of furnished in Annex 1.,
the bank Regarding the criterion for,
"deciding the fine, the",
penalties have been,
imposed on these banks for,
contravention of various,
directions and instructions,
such as failure to carry out,
proper due diligence on,
user appropriateness and,
"suitability of products,",
selling derivative products,
to users not having proper,
"risk Management policies,",
not verifying the,
underlying /adequacy of,
underlying and eligible,
limits under past,
"performance route, issued",
by RBI in respect of,
derivative transactions.,
5. Is fine imposed /action taken on some No other bank was,
other banks also other than as penalized other than those,
"mentioned in enclosed news clipping mentioned in the Annex, in",
the context of press release,
No.2010-2011/1555 of,
"April 26, 2011",
"6. If yes please provide details Not Applicable, in view of",
the information provided in,
query No.5,
7. Any other information The query is not specific.,
8. File notings on movement of this RTI Copy of the note is,
petition and on every aspect of this enclosed.,
RTI Petition,
"11. In the Second Appeal, the CIC heard the respondent via",
telephone and the petitioner through video conferencing. As,
14,
"directed by CIC, the petitioner filed written submission. The",
CIC directed the CPIO of the Petitioner to provide complete,
information in relation to queries 1 2 and 3 of the original,
application of the Respondent before 15.12.2011.,
"12. In Transfer Case No. 96 of 2015, the Respondent sought",
following information from the CPIO of RBI under the Act of,
"2005, reply to which is tabulated hereunder:-",
Sl. Information Sought Reply,
No.,
1. Before the Orissa High Court RBI The Information sought by you is,
has filed an affidavit stating that exempted under Section 8(1)(a) & (e),
"the total mark to market losses of RTI Act, which state as under;",
on account of currency,
derivatives is to the tune of more 8(1) notwithstanding anything,
"than Rs. 32,000 crores Please contained in this Act, there shall be",
give bank wise breakup of the no obligation to give any citizen,
MTM Losses,
(a) information disclosure of,
which would prejudicially affect,
the sovereignty and integrity of,
India the security strategic,
scientific or economic interests of,
"the state, relation with foreign",
State or lead to incitement of an,
offence.,
(e) Information available to a,
person in his fiduciary,
relationship unless the competent,
authority is satisfied that larger,
public interest warrants the,
disclosure of such information.,
2. What is the latest figure available Please refer to our response to 1,
with RBI of the amount of losses above.,
suffered by Indian Business,
15,
houses? Please furnish the latest,
figures bank wise and customer,
wise.,
3. Whether the issue of derivative We have no information in this,
losses to Indian exporters was matter.,
discussed in any of the meetings,
of Governor/Deputy Governor or,
senior official of the Reserve,
Bank of India? If so please,
furnish the minutes of the,
meeting where the said issue was,
discussed,
4. Any other Action Taken Reports We have no information in this,
by RBI in this regard. matter.,
13. The CIC allowed the second appeal and directed the CPIO,
FED of the Petitioner to provide complete information in,
"queries 1, 2, 9 and 10 of the original application of the",
"Respondent before 05.01.2012. The CPIO, FED complied with",
"the order of the CIC in so far queries 2, 9 and 10 are",
concerned. The RBI filed writ petition for quashing the order of,
CIC so far as it directs to provide complete information as per,
record on query No.1.,
"14. In Transfer Case No. 97 of 2015, the Respondent sought",
following information from the CPIO of National Bank for,
16,
"Agriculture and Rural Development under the Act of 2005,",
reply to which is tabulated hereunder:-,
Sl. Information Sought Reply,
No.,
1. The report made by NABARD regarding 86 Please refer to your,
N.P.A. Accounts for Rs. 3806.95 crore of application dated 19,
"Maharashtra State Co-operative Bank Ltd. (if April, 2011 seeking",
any information of my application is not information under the,
"available in your Office/Department/ RTI Act, 2005 which",
"Division/Branch, transfer this application to was received by us on",
"the concerned Office/Department/ 06th May, 2011. In",
"Division/Branch and convey me accordingly this connection, we",
as per the provision of Section 6 (3) of Right advise that the,
"to Information Act, 2005. questions put forth by",
you relate to the,
observations made in,
the Inspection Report,
of NABARD pertaining,
to MSCB which are,
confidential in nature.,
Since furnishing the,
information would,
impede the process of,
investigation or,
apprehension or,
prosecution of,
"offenders, disclosure",
of the same is,
exempted under,
Section 8(1)(h) of the,
Act.,
"15. In Transfer Case No. 98 of 2015, the Respondent sought",
following information from the CPIO of RBI under the Act of,
"2005, reply to which is tabulated hereunder:-",
17,
Sl. Information Sought Reply,
No.,
1. What contraventions and violations were The bank was penalized,
made by SCB in respect of RBI instructions along with 18 other,
on derivatives for which RBI has imposed banks for contravention,
penalty of INR 10 lakhs on SCB in exercise of various instructions,
of its powers vested under Section 47(1)(b) issued by the Reserve,
"of Banking Regulation Act, 1949 and as Bank of India in respect",
"stated in the RBI press release dated April of derivatives, such as,",
"26, 2011 issued by Department of failure to carry out due",
Communications RBI diligence in regard to,
"suitability of products,",
selling derivative,
products to users not,
having risk,
management policies,
and not verifying the,
underlying/adequacy of,
underlying and eligible,
limits under past,
performance route. The,
information is also,
available on our,
website under press,
releases.,
2. Please provide us the copies/details of all Complaints are received,
"the complaints filed with RBI against SCB, by Reserve Bank of",
accusing SCB of mis-selling derivative India and as they,
"products, failure to carry out due diligence constitute the third",
"in regard to suitability of products, not party information, the",
verifying the underlying/adequacy of information requested,
underlying and eligible limits under past by you cannot be,
performance and various other disclosed in terms of,
non-compliance of RBI instruction on Section 8(1)(d) of the,
"derivatives. RTI Act, 2005.",
"Also, please provide the above information",
in the following format,
. Date of the complaint,
Name of the complaint,
Subject matter of the complaint,
Brief description of the facts and,
accusations made by the complaint.,
18,
Any other information available with RBI,
with respect to violation/contraventions by,
SCB of RBI instructions on derivatives.,
3. Please provide us the copies of all the The action has been,
written replies/correspondences made by taken against the bank,
SCB with RBI and the recordings of all the based on the findings of,
oral submissions made by SCB to defend the Annual Financial,
and explain the violations/contraventions Inspection (AFI) of the,
made by SCB bank which is,
conducted under the,
provisions of Sec.35 of,
"the BR Act, 1949. The",
findings of the,
inspection are,
confidential in nature,
intended specifically for,
the supervised entities,
and for corrective,
action by them. The,
information is received,
by us in fiduciary,
capacity disclosure of,
which may prejudicially,
affect the economic,
interest of the state.,
As such the,
information cannot be,
disclosed in terms of,
Section 8(1) (a) and (e),
"of the RTI Act, 2005",
4. Please provide us the details/copies of the -do-,
"findings recordings, enquiry reports,",
directive orders file notings and/or any,
information on the investigations conducted,
by RBI against SCB in respect of,
non-compliance by SCB thereby,
establishing violations by SCBV in respect,
of non compliances of RBI instructions on,
derivatives.,
Please also provide the above information,
in the following format.,
. Brief violations/contraventions made by,
SCB,
. In brief SCB replies/defense/explanation,
19,
against each violations/contraventions,
made by it under the show cause notice.,
. RBI investigations/notes/on the SCB,
Replies/defense/explanations for each of,
the violation/contravention made by SCB.,
. RBI remarks/findings with regard to the,
violations/contraventions made by SCB.,
"16. In Transfer Case No. 99 of 2015, the Respondent sought",
following information from the CPIO of RBI under the Act of,
"2005, reply to which is tabulated hereunder:-",
Sl. Information Sought Reply,
No.,
"1. That, what action has the department 1. Enquiry was",
taken against scams/financial carried out against,
irregularities of United Mercantile scams/financial,
Cooperative Bank Ltd as mentioned in the irregularities of United,
enclosed published news. Provide day to Mercantile Cooperative,
day progress report of the action taken. Bank Ltd. as mentioned,
in the enclosed,
published news.,
2. Note/explanation,
has been called for from,
the bank vide our letter,
"dated 8th July, 2011",
regarding errors,
mentioned in enquiry,
report.,
3. The other,
information asked here,
is based on the,
conclusions of,
Inspection Report. We,
would like to state that,
conclusions found,
20,
during inspections are,
confidential and the,
reports are finalized on,
the basis of information,
received from banks. We,
received the information,
from banks in a,
confident capacity.,
"Moreover, disclosure of",
such information may,
cause damage to the,
banking system and,
financial interests of the,
state. Disclosure of,
such type of information,
is exempted under,
Section 8(1)(a) and (e) of,
"RTI Act, 2005.",
2. That permission for opening how many United Mercantile,
extension counters was obtained by United Cooperative Bank Ltd.,
"Mercantile Cooperative Bank Ltd from RBI. was permitted to open 5,",
Provide details of expenditure incurred for extension counters.,
constructing the extension counters. Had,
the bank followed tender system for these The information,
"constructions, if yes, provide details of regarding expenditure",
concerned tenders. incurred on,
construction of these,
extension counters and,
tenders are not available,
with Reserve Bank of,
India.,
"17. In Transfer Case No. 100 of 2015, the Respondent sought",
following information from the CPIO of RBI under the Act of,
"2005, reply to which is tabulated hereunder:-",
21,
Sl. Information Sought Reply,
No.,
1. Under which Grade The George Town The classification of,
"Co-operative Bank Ltd., Chennai, has been banks into various",
categorised as on 31.12.2006? grades are done on the,
basis of inspection,
findings which is based,
on information/,
documents obtained in,
a fiduciary capacity and,
cannot be disclosed to,
outsiders. It is also,
exempted under Section,
8(1)(e) of right to,
"Information Act, 2005.",
"18. The Appellate Authority observed that the CPIO, UBD has",
replied that the classification of banks into various grades is,
done on the basis of findings recorded in inspection which are,
based on information/documents obtained in a fiduciary,
"capacity and cannot be disclosed to outsiders. The CPIO, UBD",
has stated that the same is exempted under Section 8(1)(e) of,
RTI Act. Apart from the fact that information sought by the,
"appellant is sensitive and cannot be disclosed, it could also",
harm the competitive position of the co-operative bank.,
"Therefore, exemption from disclosure of the Information is",
available under Section 8(1)(d) of the RTI Act.,
22,
"19. In Transfer Case No. 101 of 2015, with regard to",
"Deendayal Nagri Shakari Bank Ltd, District Beed, the",
Respondent sought following information from the CPIO of RBI,
"under the Act of 2005, reply to which is tabulated hereunder:-",
Sl. Information Sought Reply,
No.,
1. Copies of complaints received by RBI Disclosure of,
"against illegal working of the said bank, information regarding",
including violations of the Standing complaints received,
Orders of RBI as well as the provisions from third parties,
"under Section 295 of the Companies Act, would harm the",
1956. competitive position of a,
third party. Further,
such information is,
maintained in a,
fiduciary capacity and,
is exempted from,
disclosure under,
Sections 8(1)(d) and (e),
of the RTI Act.,
2. Action initiated by RBI against the said (a) A penalty of Rs. 1,
"bank, including all correspondence lakh was imposed on",
between RBI and the said bank officials. Deendayal Nagri,
Sahakari Bank Ltd. for,
violation of directives on,
loans to directors/their,
relatives/concerns in,
which they are,
interested. The bank,
paid the penalty on,
08.10.2010.,
(b) As regards,
correspondence,
"between RBI and the,",
"co-operative bank, it is",
advised that such,
information is,
maintained by RBI in,
fiduciary capacity and,
23,
hence cannot be given,
to outsiders. Moreover,
disclosure of such,
information may harm,
the interest of the bank,
and banking system.,
Such information is,
exempt from disclosure,
under Section 8(1)(a),
and (e) of the RTI Act.,
"3. Finding of the enquiry made by RBI, Such information is",
actions proposed and taken against the maintained by the bank,
"bank and its officials-official notings, in a fiduciary capacity",
"decisions, and final orders passed and and is obtained by RBI",
issued. during the course of,
inspection of the bank,
and hence cannot be,
given to outsiders. The,
disclosure of such,
information would,
harm the competitive,
position of a third,
party. Such,
"information is,",
"therefore, exempted",
from disclosure under,
Section 8(1)(d) and (e),
of the RTI Act.,
As regards action taken,
"against the bank, are",
reply at S. No.2 (a),
above.,
4. Confidential letters received by RBI from See reply at S. NO.2 (a),
the Executive Director of Vaishnavi above.,
Hatcheries Pvt. Ltd. complaining about,
the illegal working and pressure policies of,
the bank and its chairman for misusing,
the authority of digital signature for,
sanction of the backdated resignations of,
the chairman of the bank and few other,
directors of the companies details of,
action taken by RBI on that.,
24,
20. The First Appellate Authority observed that the CPIO had,
furnished the information available on queries 2 and 4.,
Further information sought in queries 1 and 3 was exempted,
under Section 8(1)(a)(d) and (e) of the RTI Act.,
"21. Various transfer petitions were, therefore, filed seeking",
transfer of the writ petitions pending before different High,
"Courts. On 30.5.2015, while allowing the transfer petitions",
filed by Reserve Bank of India seeking transfer of various writ,
"petitions filed by it in the High Courts of Delhi and Bombay,",
this Court passed the following orders:,
"""Notice is served upon the substantial number of",
respondents. Learned counsel for the respondents,
"have no objection if Writ Petition Nos. 8400 of 2011,",
"8605 of 2011, 8693 of 2011, 8583 of 2011, 32 of 2012,",
"685 of 2012, 263 of 2012 and 1976 of 2012 pending in",
the High Court of Delhi at New Delhi and Writ Petition,
"(L) Nos. 2556 of 2011, 2798 of 2011 and 4897 of 2011",
pending in the High Court of Bombay are transferred,
"to this Court and be heard together. In the meanwhile,",
the steps may be taken to serve upon the unserved,
respondents.,
"Accordingly, the transfer petitions are allowed and the",
above mentioned writ petitions are withdrawn to this,
Court. The High Court of Delhi and the High Court of,
Bombay are directed to remit the entire record of the,
"said writ petitions to this Court within four weeks.""",
25,
"22. Mr. T.R. Andhyarujina, learned senior counsel appearing",
"for the petitioner-Reserve Bank of India, assailed the",
impugned orders passed by the Central Information,
Commissioner as illegal and without jurisdiction. Learned,
Counsel referred various provisions of The Reserve Bank of,
"India Act, 1934; The Banking Regulation Act, 1949 and The",
"Credit Information Companies (Regulation) Act, 2005 and",
made the following submissions:-,
I) The Reserve Bank of India being the statutory,
authority has been constituted under the Reserve Bank of,
"India Act, 1934 for the purpose of regulating and",
controlling the money supply in the country. It also acts as,
statutory banker with the Government of India and State,
"Governments and manages their public debts. In addition,",
it regulates and supervises Commercial Banks and,
Cooperative Banks in the country. The RBI exercises,
"control over the volume of credit, the rate of interest",
chargeable on loan and advances and deposits in order to,
ensure the economic stability. The RBI is also vested with,
"the powers to determine ""Banking Policy"" in the interest of",
"banking system, monetary stability and sound economic",
growth.,
The RBI in exercise of powers of powers conferred under,
"Section 35 of the Banking Regulation Act, 1949 conducts",
inspection of the banks in the country.,
II) The RBI in its capacity as the regulator and,
supervisor of the banking system of the country access to,
various information collected and kept by the banks. The,
inspecting team and the officers carry out inspections of,
different banks and much of the information accessed by,
the inspecting officers of RBI would be confidential.,
"Referring Section 28 of the Banking Regulation Act, it was",
submitted that the RBI in the public interest may publish,
26,
"the information obtained by it, in a consolidated form but",
not otherwise.,
III) The role of RBI is to safeguard the economic and,
financial stability of the country and it has large contingent,
of expert advisors relating to matters deciding the economy,
of the entire country and nobody can doubt the bona fide of,
"the bank. In this connection, learned counsel referred the",
decision of this Court in the case of Peerless General,
Finance and Investment Co. Limited and Another Vs.,
"Reserve Bank of India, 1992 Vol. 2 SCC 343.",
IV) Referring the decision in the case of B.,
Suryanarayana Vs. N. 1453 The Kolluru Parvathi,
"Co-Op. Bank Ltd., 1986 AIR (AP) 244, learned counsel",
submitted that the Court will be highly chary to enter into,
and interfere with the decision of Reserve Bank of India.,
Learned Counsel also referred to the decision in the case of,
Peerless General Finance and Investment Co. Limited,
"and Another Vs. Reserve Bank of India, 1992 Vol. 2 SCC",
343 and contended that Courts are not to interfere with the,
economic policy which is a function of the experts.,
V) That the RBI is vested with the responsibility of,
regulation and supervision of the banking system. As part,
"of its supervisory role, RBI supervises and monitors the",
banks under its jurisdiction through on-site inspection,
conducted on annual basis under the statutory powers,
derived by it under section 35 of the Banking Regulation,
"Act 1949, off-site returns on key financial parameters and",
engaging banks in dialogue through periodical meetings.,
RBI may take supervisory actions where warranted for,
violations of its guidelines/directives. The supervisory,
"actions would depend on the seriousness of the offence,",
systemic implications and may range from imposition of,
"penalty, to issue of strictures or letters of warning. While",
RBI recognizes and promotes enhanced transparency in,
"banks disclosures to the public, as transparency",
"strengthens market discipline, a bank may not be able to",
disclose all data that may be relevant to assess its risk,
"profile, due to the inherent need to preserve confidentially",
"in relation to its customers. In this light, while mandatory",
disclosures include certain prudential parameters such as,
"capital adequacy, level of Non Performing Assets etc., the",
supervisors themselves may not disclose all or some,
"information obtained on-site or off-site. In some countries,",
"wherever there are supervisory concerns, ""prompt corrective",
"action"" programmes are normally put in place, which may",
or may not be publicly disclosed. Circumspection in,
disclosures by the supervisors arises from the potential,
"market reaction that such disclosure might trigger, which",
27,
"may not be desirable. Thus, in any policy of transparency,",
there is a need to build processes which ensure that the,
benefits of supervisory disclosure are appropriately weighed,
"against the risk to stakeholders, such as depositors.",
"VI) As per the RBI policy, the reports of the annual",
"financial inspection, scrutiny of all banks/ financial",
institutions are confidential document cannot be disclosed.,
"As a matter of fact, the annual financial inspection/",
scrutiny report reflect the supervisor’s critical assessment,
of banks and financial institutions and their functions.,
Disclosure of these scrutiny and information would create,
misunderstanding/ misinterpretation in the minds of the,
"public. That apart, this may prove significantly counter",
productive. Learned counsel submitted that the disclosure,
of information sought for by the applicant would not serve,
the public interest as it will give adverse impact in public,
confidence on the bank. This has serious implication for,
financial stability which rests on public confidence. This,
will also adversely affect the economic interest of the State,
and would not serve the larger public interest.,
23. The specific stand of petitioner Reserve Bank of India is,
that the information sought for is exempted under Section 8(1),
"(a), (d) and (e) of the Right to Information Act, 2005. As the",
"regulator and supervisor of the banking system, the RBI has",
discretion in the disclosure of such information in public,
interest.,
"24. Mr. Andhyarujina, learned senior counsel, referred",
various decisions to the High Court and submitted that the,
disclosure of information would prejudicially affect the,
"economic interest of the State. Further, if the information",
28,
sought for is sensitive from the point of adverse market,
reaction leading to systematic crisis for financial stability.,
25. Learned senior counsel put heavy reliance on the Full,
Bench decision of the Central Information Commissioner and,
"submitted that while passing the impugned order, the Central",
Information Commissioner completely overlooked the Full,
Bench decision and ignored the same. According to the,
"learned counsel, the Bench, which passed the impugned",
"order, is bound to follow the Full Bench decision. The",
Commission also erred in holding that the Full Bench decision,
is per incuriam as the Full Bench has not considered the,
statutory provisions of Section 8 (2) of the Right to Information,
"Act, 2005.",
26. Learned senior counsel also submitted that the,
Commission erred in holding that even if the information,
"sought for is exempted under Section 8(1) (a), (d) or (e) of the",
"Right to Information Act, Section 8(2) of the RTI Act would",
mandate the disclosure of the information.,
29,
27. Learned senior counsel further submitted that the basic,
"question of law is whether the Right to Information Act, 2005",
overrides various provisions of special statutes which confer,
confidentiality in the information obtained by the RBI.; If the,
"Respondents are right in their contention, these statutory",
"provisions of confidentiality in the Banking Regulation Act,",
"1949, the Reserve Bank of India Act, 1934 and the Credit",
"Information Companies (Regulation) Act, 2005 would be",
"repealed or overruled by the Right to Information Act, 2005.",
"28. Under the Banking Regulation Act, 1949, the Reserve",
Bank of India has a right to obtain information from the banks,
under Section 27. These information can only be in its,
discretion published in such consolidated form as RBI deems,
fit. Likewise under Section 34A production of documents of,
confidential nature cannot be compelled. Under sub-section,
"(5) of Section 35, the Reserve Bank of India may carry out",
inspection of any bank but its report can only be disclosed if,
the Central Government orders the publishing of the report of,
the Reserve Bank of India when it appears necessary.,
30,
"29. Under Section 45E of the Reserve Bank of India Act,",
"1934, disclosure of any information relating to credit",
information submitted by banking company is confidential,
and under Section 45E(3) notwithstanding anything contained,
"in any law no court, tribunal or authority can compel the",
Reserve Bank of India to give information relating to credit,
information etc.,
30. Under Section 17(4) of the Credit Information Companies,
"(Regulation) Act, 2005, credit information received by the",
credit information company cannot be disclosed to any person.,
"Under Section 20, the credit information company has to",
adopt privacy principles and under Section 22 there cannot be,
unauthorized access to credit information.,
31. It was further contended that the Credit Information,
"Companies Act, 2005 was brought into force after the Right to",
"Information act, 2005 w.e.f. 14.12.2006. It is significant to",
"note that Section 28 of Banking Regulation Act, 1949 was",
amended by the Credit Information Companies (Regulation),
"Act, 2005. This is a clear indication that the Right to",
31,
"Information Act, 2005 cannot override credit information",
sought by any person in contradiction to the statutory,
provisions for confidentiality.,
32. This is in addition to other statutory provisions of privacy,
"in Section 44 of State Bank of India Act, 1955, Section 52,",
"State Bank of India (Subsidiary Banks) Act, 1959, Section 13",
of the Banking Companies (Acquisition & Transfer of,
"Undertakings) Act, 1970.",
"33. The Right to Information Act, 2005 is a general provision",
which cannot override specific provisions relating to,
confidentiality in earlier legislation in accordance with the,
principle that where there are general words in a later statute,
it cannot be held that the earlier statutes are repealed altered,
or discarded.,
34. Learned counsel submitted that Section 22 of the Right,
"to Information Act, 2005 cannot have the effect of nullifying",
and repealing earlier statutes in relation to confidentiality.,
This has been well settled by this Court in,
32,
a) Raghunath vs. state of Karnataka 1992(1) SCC,
335 at p.348 pages 112 and 114,
"b) ICICI Bank vs. SIDCO Leather etc., 2006(10)",
"SCC 452 at p. 466, paras 36 & 37",
"c) Central Bank vs. Kerala, 2009 (4) SCC 94 at p.",
132-133 para 104,
"d) AG Varadharajalu vs. Tamil Nadu, 1998 (4)",
SCC 231 at p. 236 para 16.,
"Hence, the Right to Information Act, 2005 cannot override the",
provisions for confidentiality conferred on the RBI by the,
earlier statutes referred to above.,
"35. The Preamble of the RTI Act, 2005 itself recognizes the",
fact that since the revealing of certain information is likely to,
"conflict with other public interests like ""the preservation of",
"confidentiality of sensitive information"", there is a need to",
harmonise these conflicting interests. It is submitted that,
certain exemptions were carved out in the RTI Act to,
harmonise these conflicting interests. This Court in Central,
Board of Secondary Education and Anr. vs. Aditya,
"Bandopadhyay and Ors, (2011)8 SCC 497, has observed as",
under:-,
33,
"""When trying to ensure that the right to information",
does not conflict with several other public interests (which,
"includes efficient operations of the Governments,",
"preservation of confidentiality of sensitive information,",
"optimum use of limited fiscal resources, etc.), it is difficult",
to visualise and enumerate all types of information which,
require to be exempted from disclosure in public interest.,
The legislature has however made an attempt to do so. The,
enumeration of exemptions is more exhaustive than the,
"enumeration of exemptions attempted in the earlier Act,",
"that is, Section 8 of the Freedom to Information Act, 2002.",
The courts and Information Commissions enforcing the,
provisions of the RTI Act have to adopt a purposive,
"construction, involving a reasonable and balanced",
"approach which harmonises the two objects of the Act,",
while interpreting Section 8 and the other provisions of the,
"Act.""",
36. Apart from the legal position that the Right to,
"Information Act, 2005 does not override statutory provisions",
"of confidentiality in other Act, it is submitted that in any case",
"Section 8(1)(a) of the Right to Information Act, 2005 states",
that there is no obligation to give any information which,
pre-judiciously affects the economic interests of the States.,
Disclosure of such vital information relating to banking would,
pre-judiciously affect the economic interests of the State. This,
was clearly stated by the Full Bench of the Central Information,
Commission by its Order in the case of Ravin Ranchchodlal,
Patel (supra). Despite this emphatic ruling individual,
Commissioners of the Information have disregarded it by,
34,
holding that the decision of the Full Bench was per incurium,
and directed disclosure of information.,
"37. Other exceptions in Section 8, viz 8(1)(a)(d), 8(1)(e) would",
"also apply to disclosure by the RBI and banks. In sum,",
learned senior counsel submitted that the RBI cannot be,
directed to disclose information relating to banking under the,
"Right to Information Act, 2005.",
"38. Mr. Prashant Bhushan, learned counsel appearing for",
"the respondents in Transfer Case Nos.94 & 95 of 2015, began",
his arguments by referring the Preamble of the Constitution,
and submitted that through the Constitution it is the people,
"who have created legislatures, executives and the judiciary to",
exercise such duties and functions as laid down in the,
constitution itself.,
39. The right to information regarding the functioning of,
public institutions is a fundamental right as enshrined in,
Article 19 of the Constitution of India. This Hon’ble Court has,
declared in a plethora of cases that the most important value,
35,
for the functioning of a healthy and well informed democracy,
is transparency. Mr. Bhushan referred Constitution Bench,
judgment of this Court in the case of State of U.P. vs. Raj,
"Narain, AIR 1975 SC 865, and submitted that it is a",
"Government’s responsibility like ours, where all the agents of",
"the public must be responsible for their conduct, there can be",
but few secrets. The people of this country have a right to,
"know every public act, everything that is done in a public way,",
"by their functionaries. The right to know, which is derived",
"from the concept of freedom of speech, though not absolute, is",
"a factor which should make one wary, when secrecy is claimed",
"for transactions which can, at any rate, have no repercussion",
"on public security. To cover with veil of secrecy, the common",
routine business is not in the interest of public.,
40. In the case of S.P. Gupta v. President of India and,
"Ors., AIR 1982 SC 149, a seven Judge Bench of this Court",
made the following observations regarding the right to,
information:-,
"""There is also in every democracy a certain amount of",
"public suspicion and distrust of Government, varying of",
"course from time to time according to its performance,",
36,
which prompts people to insist upon maximum exposure of,
its functioning. It is axiomatic that every action of the,
Government must be actuated by public interest but even,
"so we find cases, though not many, where Governmental",
action is taken not for public good but for personal gain or,
other extraneous considerations. Sometimes Governmental,
action is influenced by political and other motivations and,
"pressures and at times, there are also instances of misuse",
"or abuse of authority on the part of the executive. Now, if",
secrecy were to be observed in the functioning of,
Government and the processes of Government were to be,
"kept hidden from public scrutiny, it would tend to promote",
"and encourage oppression, corruption and misuse or abuse",
"of authority, for it would all be shrouded in the veil of",
secrecy without any public accountability. But if there is an,
open Government with means of information available to,
"the public, there would be greater exposure of the",
functioning of Government and it would help to assure the,
people a better and more efficient administration. There can,
be little doubt that exposure to public gaze and scrutiny is,
one of the surest means of achieving a clean and healthy,
administration. It has been truly said that an open,
Government is clean Government and a powerful safeguard,
against political and administrative aberration and,
"inefficiency.""",
41. In the case of the Union of India vs. Association for,
"Democratic Reforms, AIR 2002 SC 2112, while declaring that",
it is part of the fundamental right of citizens under Article,
19(1)(a) to know the assets and liabilities of candidates,
"contesting election to the Parliament or the State Legislatures,",
a three Judge Bench of this Court held unequivocally that:-,
"""The right to get information in a democracy is recognized all",
throughout and is a natural right flowing from the concept of,
"democracy (Para 56)."" Thereafter, legislation was passed",
37,
"amending the Representation of People Act, 1951 that",
candidates need not provide such information. This Court in,
"the case of PUCL vs. Union of India, (2003) 4 SCC 399,",
"struck down that legislation by stating: ""It should be properly",
understood that the fundamental rights enshrined in the,
"Constitution such as, right to equality and freedoms have no",
"fixed contents. From time to time, this Court has filled in the",
skeleton with soul and blood and made it vibrant. Since the,
"last more than 50 years, this Court has interpreted Articles",
"14, 19 and 21 and given meaning and colour so that the",
"nation can have a truly republic democratic society.""",
"42. The RTI Act, 2005, as noted in its very preamble, does",
not create any new right but only provides machinery to,
effectuate the fundamental right to information. The,
institution of the CIC and the SICs are part of that machinery.,
"The preamble also inter-alia states ""... democracy requires an",
informed citizenry and transparency of information which are,
vital to its functioning and also to contain corruption and to,
38,
hold Governments and their instrumentalities accountable to,
"the governed.""",
43. The submission of the RBI that exceptions be carved out,
of the RTI Act regime in order to accommodate provisions of,
RBI Act and Banking Regulation Act is clearly misconceived.,
"RTI Act, 2005 contains a clear provision (Section 22) by virtue",
of which it overrides all other Acts including Official Secrets,
"Act. Thus, notwithstanding anything to the contrary",
contained in any other law like RBI Act or Banking Regulation,
"Act, the RTI Act, 2005 shall prevail insofar as transparency",
"and access to information is concerned. Moreover, the RTI Act",
"2005, being a later law, specifically brought in to usher",
transparency and to transform the way official business is,
"conducted, would have to override all earlier practices and",
laws in order to achieve its objective. The only exceptions to,
access to information are contained in RTI Act itself in,
Section 8.,
39,
"44. In T.C.No.94 of 2015, the RTI applicant Mr. P.P. Kapoor",
had asked about the details of the loans taken by the,
"industrialists that have not been repaid, and he had asked",
about the names of the top defaulters who have not repaid,
their loans to public sector banks. The RBI resisted the,
disclosure of the information claiming exemption under,
Section 8(1) (a) and 8(1)(e) of the RTI Act on the ground that,
"disclosure would affect the economic interest of the country,",
and that the information has been received by the RBI from,
the banks in fiduciary capacity. The CIC found these,
arguments made by RBI to be totally misconceived in facts and,
"in law, and held that the disclosure would be in public",
interest.,
"45. In T.C.No.95 of 2015, the RTI applicant therein Mr.",
Subhash Chandra Agrawal had asked about the details of the,
show cause notices and fines imposed by the RBI on various,
banks. The RBI resisted the disclosure of the information,
"claiming exemption under Section 8(1)(a),(d) and 8(1) (e) of the",
RTI Act on the ground that disclosure would affect the,
40,
"economic interest of the country, the competitive position of",
the banks and that the information has been received by RBI,
"in fiduciary capacity. The CIC, herein also, found these",
arguments made by RBI to be totally misconceived in facts and,
in law and held that the disclosure would be in public interest.,
46. In reply to the submission of the petitioner about,
"fiduciary relationship, learned counsel submitted that the",
scope of Section 8(1)(e) of the RTI Act has been decided by this,
Court in Central Board of Secondary Education vs. Aditya,
"Bandopadhyay, (2011) 8 SCC 497, wherein, while rejecting",
the argument that CBSE acts in a fiduciary capacity to the,
"students, it was held that:",
"""...In a philosophical and very wide sense, examining bodies",
"can be said to act in a fiduciary capacity, with reference to",
"students who participate in an examination, as a",
Government does while governing its citizens or as the,
present generation does with reference to the future,
generation while preserving the environment. But the word,
‘information available to a person in his fiduciary,
relationship’ are used in Section 8(1) (e) of the RTI Act in its,
"normal and well recognized sense, that is to refer to persons",
"who act in a fiduciary capacity, with reference to specific",
beneficiary or beneficiaries who are to be expected to be,
"protected or benefited by the action of the fiduciary.""",
41,
47. We have extensively heard all the counsels appearing for,
the petitioner Banks and respondents and examined the law,
and the facts.,
"48. While introducing the Right to Information Bill, 2004 a",
serious debate and discussion took place. The then Prime,
Minister while addressing the House informed that the RTI Bill,
is to provide for setting out practical regime of right to,
"information for people, to secure access to information under",
the control of public authorities in order to promote,
transparency and accountability in the working of every public,
authority. The new legislation would radically alter the ethos,
and culture of secrecy through ready sharing of information by,
the State and its agencies with the people. An era of,
transparency and accountability in governance is on the anvil.,
"Information, and more appropriately access to information",
would empower and enable people not only to make informed,
choices but also participate effectively in decision making,
processes. Tracing the origin of the idea of the then Prime,
"Minister who had stated, ""Modern societies are information",
42,
societies. Citizens tend to get interested in all fields of life and,
"demand information that is as comprehensive, accurate and",
"fair as possible."" In the Bill, reference has also been made to",
the decision of the Supreme Court to the effect that Right to,
Information has been held as inherent in Article 19 of our,
"Constitution, thereby, elevating it to a fundamental right of the",
"citizen. The Bill, which sought to create an effective",
"mechanism for easy exercise of this Right, was held to have",
"been properly titled as ""Right to Information Act"". The Bill",
further states that a citizen has to merely make a request to,
the concerned Public Information Officer specifying the,
particulars of the information sought by him. He is not,
"required to give any reason for seeking information, or any",
other personal details except those necessary for contacting,
"him. Further, the Bill states:-",
"""The categories of information exempted from",
disclosure are a bare minimum and are contained in,
clause 8 of the Bill. Even these exemptions are not,
absolute and access can be allowed to them in public,
interest if disclosure of the information outweighs,
the harm to the public authorities. Such disclosure,
has been permitted even if it is in conflict with the,
"provisions of the Official Secrets Act, 1923.",
"Moreover, barring two categories that relate to",
information disclosure - which may affect,
43,
"sovereignty and integrity of India etc., or information",
relating to Cabinet papers etc.-all other categories of,
exempted information would be disclosed after,
twenty years.,
There is another aspect about which information is,
to be made public. We had a lengthy discussion and,
it is correctly provided in the amendment under,
clause 8 of the Bill. The following information shall,
be exempted from disclosure which would,
prejudicially affect the sovereignty and integrity of,
India; which has been expressly forbidden; which,
may result in a breach of privileges of Parliament or,
the Legislature; and also information pertaining to,
defence matters. They are listed in clause 8 (a) to (g).,
There are exceptions to this clause. Where it is,
considered necessary that the information will be,
"divulged in the interest of the State, that will be",
done. There must be transparency in public life.,
There must be transparency in administration and,
people must have a right to know what has actually,
transpired in the secretariat of the State as well as,
the Union Ministry. A citizen will have a right,
because it will be safe to prevent corruption. Many,
things are done behind the curtain. Many shoddy,
deals take place in the secretariats of the Central,
and State Governments and the information will,
always be kept hidden. Such practice should not be,
allowed in a democratic country like ours. Ours is a,
republic. The citizenry should have a right to know,
what transpired in the secretariat. Even Cabinet,
"papers, after a decision has been taken, must be",
divulged as per the provisions of this amendment. It,
"cannot be hidden from the knowledge of others.""",
"49. Addressing the House, it was pointed out by the then",
"Prime Minister that in our country, Government expenditure",
both at the Central and at the level of the States and local,
"bodies, account for nearly 33% of our Gross National Product.",
"At the same time, the socio-economic imperatives require our",
44,
Government to intervene extensively in economic and social,
"affairs. Therefore, the efficiency and effectiveness of the",
"government processes are critical variables, which will",
determine how our Government functions and to what extent,
it is able to discharge the responsibilities entrusted. It was,
pointed out that there are widespread complaints in our,
"country about wastefulness of expenditure, about corruption,",
and matter which have relations with the functioning of the,
"Government. Therefore, it was very important to explore new",
effective mechanism to ensure that the Government will,
purposefully and effectively discharge the responsibilities,
entrusted to it.,
50. Finally the Right to Information Act was passed by the,
"Parliament called ""The Right to Information Act, 2005"". The",
Preamble states:-,
"""An Act to provide for setting out the practical",
regime of right to information for citizens to secure,
access to information under the control of public,
"authorities, in order to promote transparency and",
accountability in the working of every public,
"authority, the constitution of a Central Information",
Commission and State Information Commissions and,
for matters connected therewith or incidental,
thereto.,
45,
WHEREAS the Constitution of India has,
established democratic Republic;,
AND WHEREAS democracy requires an,
informed citizenry and transparency of information,
which are vital to its functioning and also to contain,
corruption and to hold Governments and their,
instrumentalities accountable to the governed;,
AND WHEREAS revelation of information in,
actual practice is likely to conflict with other public,
interests including efficient operations of the,
"Governments, optimum use of limited fiscal",
resources and the preservation of confidentiality of,
sensitive information;,
AND WHEREAS it is necessary to harmonise,
these conflicting interest while preserving the,
paramountcy of the democratic ideal;,
"NOW, THEREFORE, it is expedient to provide",
for furnishing certain information to citizens who,
"desire to have it.""",
51. Section 2 of the Act defines various authorities and the,
words. Section 2(j) defines right to information as under :-,
"""2(j) ""right to information"" means the right to",
information accessible under this Act which is held,
by or under the control of any public authority and,
includes the right to-,
"(i) inspection of work, documents, records;",
"(ii) taking notes, extracts, or certified",
copies of documents or records;,
(iii) taking certified samples of material;,
(iv) obtaining information in the form of,
"diskettes, floppies, tapes, video",
cassettes or in any other electronic,
mode or through printouts where such,
information is stored in a computer or,
"in any other device;""",
46,
52. Section 3 provides that all citizens shall have the right to,
information subject to the provisions of this Act. Section 4,
makes it obligatory on all public authorities to maintain,
records in the manner provided therein. According to Section,
"6, a person who desires to obtain any information under the",
Act shall make a request in writing or through electronic,
means in English or Hindi in the official language of the area,
in which the application is being made to the competent,
authority specifying the particulars of information sought by,
him or her. Sub-section (ii) of Section 6 provides that the,
applicant making request for information shall not be required,
to give any reason for requesting the information or any other,
personal details except those that may be necessary for,
contacting him. Section 7 lays down the procedure for,
disposal of the request so made by the person under Section 6,
"of the Act. Section 8, however, provides certain exemption",
from disclosure of information. For better appreciation,
Section 8 is quoted hereinbelow:-,
47,
"""8. Exemption from disclosure of information.--",
"(1) Notwithstanding anything contained in this Act,",
"there shall be no obligation to give any citizen,--",
"(a) information, disclosure of which would prejudicially",
"affect the sovereignty and integrity of India, the",
"security, strategic, scientific or economic interests of",
"the State, relation with foreign State or lead to",
incitement of an offence;,
(b) information which has been expressly forbidden to,
be published by any court of law or tribunal or the,
disclosure of which may constitute contempt of court;,
"(c) information, the disclosure of which would cause a",
breach of privilege of Parliament or the State,
Legislature;,
"(d) information including commercial confidence, trade",
"secrets or intellectual property, the disclosure of which",
"would harm the competitive position of a third party,",
unless the competent authority is satisfied that larger,
public interest warrants the disclosure of such,
information;,
(e) information available to a person in his fiduciary,
"relationship, unless the competent authority is",
satisfied that the larger public interest warrants the,
disclosure of such information;,
(f) information received in confidence from foreign,
government;,
"(g) information, the disclosure of which would",
endanger the life or physical safety of any person or,
identify the source of information or assistance given,
in confidence for law enforcement or security,
purposes;,
(h) information which would impede the process of,
investigation or apprehension or prosecution of,
offenders;,
(i) cabinet papers including records of deliberations of,
"the Council of Ministers, Secretaries and other officers:",
"Provided that the decisions of Council of Ministers, the",
"reasons thereof, and the material on the basis of which",
the decisions were taken shall be made public after the,
"decision has been taken, and the matter is complete,",
or over: Provided further that those matters which,
come under the exemptions specified in this section,
shall not be disclosed;,
(j) information which relates to personal information,
the disclosure of which has not relationship to any,
48,
"public activity or interest, or which would cause",
unwarranted invasion of the privacy of the individual,
unless the Central Public Information Officer or the,
State Public Information Officer or the appellate,
"authority, as the case may be, is satisfied that the",
larger public interest justifies the disclosure of such,
"information: Provided that the information, which",
cannot be denied to the Parliament or a State,
Legislature shall not be denied to any person.,
(2) Notwithstanding anything in the Official Secrets,
"Act, 1923 (19 of 1923) nor any of the exemptions",
"permissible in accordance with sub-section (1), a",
"public authority may allow access to information, if",
public interest in disclosure outweighs the harm to the,
protected interests.,
"(3) Subject to the provisions of clauses (a), (c) and (i) of",
"sub-section (1), any information relating to any",
"occurrence, event or matter which has taken place,",
occurred or happened twenty years before the date on,
which any request is made under section 6 shall be,
provided to any person making a request under that,
section: Provided that where any question arises as to,
the date from which the said period of twenty years,
"has to be computed, the decision of the Central",
"Government shall be final, subject to the usual",
"appeals provided for in this Act.""",
53. The information sought for by the respondents from the,
petitioner-Bank have been denied mainly on the ground that,
such information is exempted from disclosure under Section,
8(1)(a)(d) and (e) of the RTI Act.,
54. Learned counsel appearing for the petitioner-Bank,
mainly relied upon Section 8(1)(e) of the RTI Act taking the,
49,
stand that the Reserve Bank of India having fiduciary,
relationship with the other banks and that there is no reason,
to disclose such information as no larger public interest,
"warrants such disclosure. The primary question therefore, is,",
whether the Reserve Bank of India has rightly refused to,
disclose information on the ground of its fiduciary relationship,
with the banks.,
"55. The Advanced Law Lexicon, 3rd Edition, 2005, defines",
"fiduciary relationship as ""a relationship in which one person is",
under a duty to act for the benefit of the other on the matters,
within the scope of the fiduciary relationship. Fiduciary,
relationship usually arise in one of the four situations (1),
when one person places trust in the faithful integrity of,
"another, who as a result gains superiority or influence over the",
"first, (2) when one person assumes control and responsibility",
"over another, (3) when one person has a duty to act or give",
advice to another on matters falling within the scope of the,
"relationship, or (4) when there is specific relationship that has",
50,
"traditionally be recognized as involving fiduciary duties, as",
"with a lawyer and a client, or a stockbroker and a customer.""",
56. The scope of the fiduciary relationship consists of the,
following rules:,
"""(i) No Conflict rule- A fiduciary must not place",
himself in a position where his own interests conflicts,
with that of his customer or the beneficiary. There,
"must be ""real sensible possibility of conflict.",
(ii) No profit rule- a fiduciary must not profit from,
"his position at the expense of his customer, the",
beneficiary;,
(iii) Undivided loyalty rule- a fiduciary owes,
"undivided loyalty to the beneficiary, not to place",
himself in a position where his duty towards one,
person conflicts with a duty that he owes to another,
customer. A consequence of this duty is that a,
fiduciary must make available to a customer all the,
information that is relevant to the customer’s affairs,
(iv) Duty of confidentiality- a fiduciary must only,
use information obtained in confidence and must not,
"use it for his own advantage, or for the benefit of",
"another person.""",
57. The term fiduciary relationship has been well discussed,
by this Court in the case of Central Board of Secondary,
Education and Anr. vs. Aditya Bandopadhyay and Ors.,
"(supra). In the said decision, their Lordships referred various",
authorities to ascertain the meaning of the term fiduciary,
relationship and observed thus:-,
51,
"""20.1) Black’s Law Dictionary (7th Edition, Page 640)",
defines ‘fiduciary relationship’ thus:,
"""A relationship in which one person is under a duty to",
act for the benefit of the other on matters within the,
scope of the relationship. Fiduciary relationships -,
"such as trustee-beneficiary, guardian-ward,",
"agent-principal, and attorney-client - require the",
highest duty of care. Fiduciary relationships usually,
arise in one of four situations : (1) when one person,
"places trust in the faithful integrity of another, who as",
"a result gains superiority or influence over the first, (2)",
when one person assumes control and responsibility,
"over another, (3) when one person has a duty to act for",
or give advice to another on matters falling within the,
"scope of the relationship, or (4) when there is a specific",
relationship that has traditionally been recognized as,
"involving fiduciary duties, as with a lawyer and a client",
"or a stockbroker and a customer.""",
20.2) The American Restatements (Trusts and Agency),
define ‘fiduciary’ as one whose intention is to act for,
the benefit of another as to matters relevant to the,
relation between them. The Corpus Juris Secundum,
(Vol. 36A page 381) attempts to define fiduciary thus :,
"""A general definition of the word which is sufficiently",
comprehensive to embrace all cases cannot well be,
"given. The term is derived from the civil, or Roman, law.",
"It connotes the idea of trust or confidence,",
"contemplates good faith, rather than legal obligation, as",
"the basis of the transaction, refers to the integrity, the",
"fidelity, of the party trusted, rather than his credit or",
"ability, and has been held to apply to all persons who",
"occupy a position of peculiar confidence toward others,",
and to include those informal relations which exist,
"whenever one party trusts and relies on another, as",
well as technical fiduciary relations.,
"The word ‘fiduciary,’ as a noun, means one who holds a",
"thing in trust for another, a trustee, a person holding",
"the character of a trustee, or a character analogous to",
"that of a trustee, with respect to the trust and",
confidence involved in it and the scrupulous good faith,
"and candor which it requires; a person having the duty,",
"created by his undertaking, to act primarily for",
52,
another’s benefit in matters connected with such,
"undertaking. Also more specifically, in a statute, a",
"guardian, trustee, executor, administrator, receiver,",
"conservator, or any person acting in any fiduciary",
"capacity for any person, trust, or estate. Some",
"examples of what, in particular connections, the term",
has been held to include and not to include are set out,
"in the note.""",
"20.3) Words and Phrases, Permanent Edition (Vol. 16A,",
Page 41) defines ‘fiducial relation’ thus :,
"""There is a technical distinction between a ‘fiducial",
relation’ which is more correctly applicable to legal,
"relationships between parties, such as guardian and",
"ward, administrator and heirs, and other similar",
"relationships, and ‘confidential relation’ which includes",
"the legal relationships, and also every other",
relationship wherein confidence is rightly reposed and,
is exercised.,
"Generally, the term ‘fiduciary’ applies to any person",
who occupies a position of peculiar confidence towards,
another. It refers to integrity and fidelity. It,
"contemplates fair dealing and good faith, rather than",
"legal obligation, as the basis of the transaction. The",
term includes those informal relations which exist,
"whenever one party trusts and relies upon another, as",
"well as technical fiduciary relations.""",
20.4) In Bristol and West Building Society vs. Mothew,
[1998 Ch. 1] the term fiduciary was defined thus :,
"""A fiduciary is someone who has undertaken to act for",
and on behalf of another in a particular matter in,
circumstances which give rise to a relationship of trust,
and confidence. The distinguishing obligation of a,
fiduciary is the obligation of loyalty..... A fiduciary must,
act in good faith; he must not make a profit out of his,
trust; he must not place himself in a position where his,
duty and his interest may conflict; he may not act for,
his own benefit or the benefit of a third person without,
"the informed consent of his principal.""",
53,
20.5) In Wolf vs. Superior Court [2003 (107) California,
"Appeals, 4th 25] the California Court of Appeals defined",
fiduciary relationship as under :,
"""any relationship existing between the parties to the",
transaction where one of the parties is duty bound to,
act with utmost good faith for the benefit of the other,
party. Such a relationship ordinarily arises where,
confidence is reposed by one person in the integrity of,
"another, and in such a relation the party in whom the",
"confidence is reposed, if he voluntarily accepts or",
"assumes to accept the confidence, can take no",
advantage from his acts relating to the interests of the,
other party without the latter’s knowledge and,
"consent.""",
21. The term ‘fiduciary’ refers to a person having a duty,
"to act for the benefit of another, showing good faith and",
"condour, where such other person reposes trust and",
special confidence in the person owing or discharging,
the duty. The term ‘fiduciary relationship’ is used to,
describe a situation or transaction where one person,
(beneficiary) places complete confidence in another,
"person (fiduciary) in regard to his affairs, business or",
transaction/s. The term also refers to a person who,
holds a thing in trust for another (beneficiary). The,
fiduciary is expected to act in confidence and for the,
"benefit and advantage of the beneficiary, and use good",
faith and fairness in dealing with the beneficiary or the,
things belonging to the beneficiary. If the beneficiary,
"has entrusted anything to the fiduciary, to hold the",
thing in trust or to execute certain acts in regard to or,
"with reference to the entrusted thing, the fiduciary has",
to act in confidence and expected not to disclose the,
thing or information to any third party. There are also,
certain relationships where both the parties have to act,
in a fiduciary capacity treating the other as the,
beneficiary. Examples of these are : a partner vis-‘-vis,
another partner and an employer vis-‘-vis employee.,
An employee who comes into possession of business or,
trade secrets or confidential information relating to the,
"employer in the course of his employment, is expected",
to act as a fiduciary and cannot disclose it to others.,
"Similarly, if on the request of the employer or official",
"superior or the head of a department, an employee",
54,
"furnishes his personal details and information, to be",
"retained in confidence, the employer, the official",
superior or departmental head is expected to hold such,
"personal information in confidence as a fiduciary, to be",
made use of or disclosed only if the employee’s conduct,
"or acts are found to be prejudicial to the employer.""",
"58. In the instant case, the RBI does not place itself in a",
"fiduciary relationship with the Financial institutions (though,",
"in word it puts itself to be in that position) because, the",
"reports of the inspections, statements of the bank, information",
related to the business obtained by the RBI are not under the,
pretext of confidence or trust. In this case neither the RBI nor,
the Banks act in the interest of each other. By attaching an,
"additional ""fiduciary"" label to the statutory duty, the",
Regulatory authorities have intentionally or unintentionally,
created an in terrorem effect.,
59. RBI is a statutory body set up by the RBI Act as India’s,
Central Bank. It is a statutory regulatory authority to oversee,
the functioning of the banks and the country’s banking sector.,
"Under Section 35A of the Banking Regulation Act, RBI has",
been given powers to issue any direction to the banks in,
55,
"public interest, in the interest of banking policy and to secure",
proper management of a banking company. It has several,
other far-reaching statutory powers.,
60. RBI is supposed to uphold public interest and not the,
interest of individual banks. RBI is clearly not in any fiduciary,
relationship with any bank. RBI has no legal duty to,
maximize the benefit of any public sector or private sector,
"bank, and thus there is no relationship of ‘trust’ between",
them. RBI has a statutory duty to uphold the interest of the,
"public at large, the depositors, the country’s economy and the",
"banking sector. Thus, RBI ought to act with transparency and",
not hide information that might embarrass individual banks.,
It is duty bound to comply with the provisions of the RTI Act,
and disclose the information sought by the respondents,
herein.,
61. The baseless and unsubstantiated argument of the RBI,
that the disclosure would hurt the economic interest of the,
"country is totally misconceived. In the impugned order, the",
CIC has given several reasons to state why the disclosure of,
56,
the information sought by the respondents would hugely serve,
"public interest, and non-disclosure would be significantly",
detrimental to public interest and not in the economic interest,
"of India. RBI’s argument that if people, who are sovereign, are",
made aware of the irregularities being committed by the banks,
"then the country’s economic security would be endangered, is",
not only absurd but is equally misconceived and baseless.,
62. The exemption contained in Section 8(1)(e) applies to,
exceptional cases and only with regard to certain pieces of,
"information, for which disclosure is unwarranted or",
undesirable. If information is available with a regulatory,
"agency not in fiduciary relationship, there is no reason to",
"withhold the disclosure of the same. However, where",
information is required by mandate of law to be provided to an,
"authority, it cannot be said that such information is being",
"provided in a fiduciary relationship. As in the instant case,",
the Financial institutions have an obligation to provide all the,
information to the RBI and such an information shared under,
an obligation/ duty cannot be considered to come under the,
57,
purview of being shared in fiduciary relationship. One of the,
"main characteristic of a Fiduciary relationship is ""Trust and",
"Confidence"". Something that RBI and the Banks lack between",
them.,
"63. In the present case, we have to weigh between the public",
interest and fiduciary relationship (which is being shared,
"between the RBI and the Banks). Since, RTI Act is enacted to",
"empower the common people, the test to determine limits of",
Section 8 of RTI Act is whether giving information to the,
general public would be detrimental to the economic interests,
of the country? To what extent the public should be allowed to,
get information?,
"64. In the context of above questions, it had long since come",
to our attention that the Public Information Officers (PIO),
under the guise of one of the exceptions given under Section 8,
"of RTI Act, have evaded the general public from getting their",
hands on the rightful information that they are entitled to.,
58,
65. And in this case the RBI and the Banks have sidestepped,
the General public’s demand to give the requisite information,
"on the pretext of ""Fiduciary relationship"" and ""Economic",
"Interest"". This attitude of the RBI will only attract more",
suspicion and disbelief in them. RBI as a regulatory authority,
should work to make the Banks accountable to their actions.,
"66. Furthermore, the RTI Act under Section 2(f) clearly",
"provides that the inspection reports, documents etc. fall under",
"the purview of ""Information"" which is obtained by the public",
"authority (RBI) from a private body. Section 2(f), reads thus:",
"""information"" means any material in any form,",
"including records, documents, memos, e-mails,",
"opinions, advices, press releases, circulars,",
"orders, logbooks, contracts, reports, papers,",
"samples, models, data material held in any",
electronic form and information relating to any,
private body which can be accessed by a public,
authority under any other law for the time being,
in force;,
67. From reading of the above section it can be inferred that,
the Legislature’s intent was to make available to the general,
public such information which had been obtained by the,
public authorities from the private body. Had it been the case,
59,
where only information related to public authorities was to be,
"provided, the Legislature would not have included the word",
"""private body"". As in this case, the RBI is liable to provide",
information regarding inspection report and other documents,
to the general public.,
68. Even if we were to consider that RBI and the Financial,
"Institutions shared a ""Fiduciary Relationship"", Section 2(f)",
would still make the information shared between them to be,
accessible by the public. The facts reveal that Banks are trying,
"to cover up their underhand actions, they are even more liable",
to be subjected to public scrutiny.,
69. We have surmised that many Financial Institutions have,
resorted to such acts which are neither clean nor transparent.,
The RBI in association with them has been trying to cover up,
their acts from public scrutiny. It is the responsibility of the,
RBI to take rigid action against those Banks which have been,
practicing disreputable business practices.,
60,
70. From the past we have also come across financial,
institutions which have tried to defraud the public. These acts,
are neither in the best interests of the Country nor in the,
"interests of citizens. To our surprise, the RBI as a Watch Dog",
should have been more dedicated towards disclosing,
information to the general public under the Right to,
Information Act.,
"71. We also understand that the RBI cannot be put in a fix,",
"by making it accountable to every action taken by it. However,",
in the instant case the RBI is accountable and as such it has,
to provide information to the information seekers under,
"Section 10(1) of the RTI Act, which reads as under:",
"""Section 10(1) Severability --Where a request",
for access to information is rejected on the,
ground that it is in relation to information which,
"is exempt from disclosure, then,",
"notwithstanding anything contained in this Act,",
access may be provided to that part of the record,
which does not contain any information which is,
exempt from disclosure under this Act and,
which can reasonably be severed from any part,
"that contains exempt information.""",
72. It was also contended by learned senior counsel for the,
RBI that disclosure of information sought for will also go,
61,
against the economic interest of the nation. The submission,
is wholly misconceived.,
73. Economic interest of a nation in most common parlance,
are the goals which a nation wants to attain to fulfil its,
"national objectives. It is the part of our national interest,",
meaning thereby national interest can’t be seen with the,
spectacles(glasses) devoid of economic interest.,
74. It includes in its ambit a wide range of economic,
transactions or economic activities necessary and beneficial to,
"attain the goals of a nation, which definitely includes as an",
objective economic empowerment of its citizens. It has been,
recognized and understood without any doubt now that one of,
the tool to attain this goal is to make information available to,
people. Because an informed citizen has the capacity to,
reasoned action and also to evaluate the actions of the,
"legislature and executives, which is very important in a",
participative democracy and this will serve the nation’s,
interest better which as stated above also includes its,
62,
economic interests. Recognizing the significance of this tool it,
has not only been made one of the fundamental rights under,
Article 19 of the Constitution but also a Central Act has been,
brought into effect on 12th October 2005 as the Right to,
"Information Act, 2005.",
75. The ideal of ‘Government by the people’ makes it,
necessary that people have access to information on matters of,
public concern. The free flow of information about affairs of,
Government paves way for debate in public policy and fosters,
accountability in Government. It creates a condition for ‘open,
governance’ which is a foundation of democracy.,
76. But neither the Fundamental Rights nor the Right to,
Information have been provided in absolute terms. The,
fundamental rights guaranteed under Article 19 Clause 1(a),
are restricted under Article 19 clause 2 on the grounds of,
"national and societal interest. Similarly Section 8, clause 1 of",
"Right to Information Act, 2005, contains the exemption",
provisions where right to information can be denied to public,
"in the name of national security and sovereignty, national",
63,
"economic interests, relations with foreign states etc. Thus, not",
all the information that the Government generates will or shall,
be given out to the public. It is true that gone are the days of,
closed doors policy making and they are not acceptable also,
but it is equally true that there are some information which if,
"published or released publicly, they might actually cause more",
harm than good to our national interest... if not domestically it,
can make the national interests vulnerable internationally and,
it is more so possible with the dividing line between national,
and international boundaries getting blurred in this age of,
rapid advancement of science and technology and global,
economy. It has to be understood that rights can be enjoyed,
without any inhibition only when they are nurtured within,
protective boundaries. Any excessive use of these rights which,
may lead to tampering these boundaries will not further the,
national interest. And when it comes to national economic,
"interest, disclosure of information about currency or exchange",
"rates, interest rates, taxes, the regulation or supervision of",
"banking, insurance and other financial institutions, proposals",
64,
for expenditure or borrowing and foreign investment could in,
"some cases harm the national economy, particularly if",
"released prematurely. However, lower level economic and",
"financial information, like contracts and departmental budgets",
should not be withheld under this exemption. This makes it,
necessary to think when or at what stage an information is to,
"be provided i.e., the appropriate time of providing the",
information which will depend on nature of information sought,
for and the consequences it will lead to after coming in public,
domain.,
"77. In one of the case, the respondent S.S. Vohra sought",
certain information in relation to the Patna Branch of ICICI,
Bank and advisory issued to the Hong Kong Branch of ICICI,
Bank. The contention of the respondent was that the Finance,
Minister had made a written statement on the floor of the,
"House on 24.07.2009 that some banks like SBI, ICICI, Bank of",
"Baroda, Dena Bank etc., were violating FEMA Guidelines for",
opening of accounts and categorically mentioned that the,
Patna Branch of ICICI Bank Ltd. had opened some fictitious,
65,
accounts which were opened by fraudsters and hence an,
advisory note was issued to the concerned branch on,
December 2007 for its irregularities. The Finance Minister,
even mentioned that in the year 2008 the ICICI Bank Ltd. was,
also warned for alleged irregular dealings in securities in Hong,
"Kong. Hence, the respondent sought such advisory note as",
issued by the RBI to ICICI Bank. The Central Information,
Commissioner in the impugned order considered the RBI,
Master Circular dated 01.07.2009 to all the commercial banks,
giving various directions and finally held as under :-,
"""It has been contended by the Counsel on behalf of",
the ICICI Bank Limited that an advisory note is prepared,
"after reliance on documents such as Inspection Reports,",
"Scrutiny reports etc. and hence, will contain the contents of",
those documents too which are otherwise exempt from,
disclosure. We have already expressed our view in express,
terms that whether or not an Advisory Note shall be,
disclosed under the RTI Act will have to be determined on,
"case by case basis. In some other case, for example, there",
may be a situation where some contents of the Advisory,
Note may have to be severed to such an extent that details,
of Inspection Reports etc. can be separated from the Note,
and then be provided to the RTI Applicant. Section 10 of,
the RTI Act leaves it open to decide each case on its merits,
after having satisfied ourselves whether an Advisory Note,
needs to be provided as it is or whether some of its contents,
may be severed since they may be exempted per se under,
"the RTI Act. However, we find no reason, whatsoever, to",
apply Section 10 of the RTI Act in order to severe the,
contents of the Advisory Note issued by the RBI to the ICICI,
Bank Limited as the matter has already been placed on the,
floor of the Lok Sabha by the Hon’ble Finance Minister.,
66,
This is a matter of concern since it involves the,
violation of policy Guidelines initiated by the RBI and,
affects the public at large. Transparency cannot be brought,
overnight in any system and one can hope to witness,
accountability in a system only when its end users are,
"well-educated, well-informed and well-aware. If the",
customers of commercial banks will remain oblivious to the,
violations of RBI Guidelines and standards which such,
"banks regularly commit, then eventually the whole financial",
system of the country would be at a monumental loss. This,
can only be prevented by suo motu disclosure of such,
information as the penalty orders are already in public,
"domain.""",
"78. Similarly, in another case the respondent Jayantilal N.",
"Mistry sought information from the CPIO, RBI in respect of a",
Cooperative Bank viz. Saraspur Nagrik Sahkari Bank Limited,
"related to inspection report, which was denied by the CPIO on",
the ground that the information contained therein were,
received by RBI in a fiduciary capacity and are exempt under,
Section 8(1)(e) of RTI Act. The CIC directed the petitioner to,
furnish that information since the RBI expressed their,
willingness to disclose a summary of substantive part of the,
inspection report to the respondent. While disposing of the,
appeal the CIC observed:-,
"""Before parting with this appeal, we would like to",
record our observations that in a rapidly unfolding,
"economics scenario, there are public institutions, both",
"in the banking and non-banking sector, whose",
activities have not served public interest. On the,
67,
"contrary, some such institutions may have attempted",
to defraud the public of their moneys kept with such,
institutions in trust. RBI being the Central Bank is,
one of the instrumentalities available to the public,
which as a regulator can inspect such institutions and,
initiate remedial measures where necessary. It is,
"important that the general public, particularly, the",
share holders and the depositors of such institutions,
are kept aware of RBI’s appraisal of the functioning of,
such institutions and taken into confidence about the,
remedial actions initiated in specific cases. This will,
serve the public interest. The RBI would therefore be,
well advised to be proactive in disclosing information,
to the public in general and the information seekers,
"under the RTI Act, in particular. The provisions of",
Section 10(1) of the RTI Act can therefore be,
judiciously used when necessary to adhere to this,
"objective.""",
"79. In another case, where the respondent P.P. Kapoor",
sought information inter alia about the details of default in,
"loans taken from public sector banks by industrialists, out of",
"the list of defaulters, top 100 defaulters, names of the",
"businessmen, firm name, principal amount, interest amount,",
date of default and date of availing the loan etc. The said,
information was denied by the CPIO mainly on the basis that,
it was held in fiduciary capacity and was exempt from,
"disclosure of such information. Allowing the appeal, the CIC",
directed for the disclosure of such information. The CIC in the,
impugned order has rightly observed as under:-,
68,
"""I wish government and its instrumentalities",
would remember that all information held by,
"them is owned by citizens, who are sovereign.",
"Further, it is often seen that banks and financial",
institutions continue to provide loans to,
industrialists despite their default in repayment,
"of an earlier loan."" This Court in UP Financial",
"Corporation vs. Gem Cap India Pvt. Ltd., AIR",
1993 SC 1435 has noted that :,
"""Promoting industrialization at the cost of",
public funds does not serve the public,
"interest, it merely amounts to transferring",
public money to private account’. Such,
practices have led citizens to believe that,
defaulters can get away and play fraud on,
public funds. There is no doubt that,
information regarding top industrialists,
who have defaulted in repayment of loans,
must be brought to citizens’ knowledge;,
there is certainly a larger public interest,
that could be served on ....disclosure of,
"the same. In fact, information about",
industrialists who are loan defaulters of,
the country may put pressure on such,
persons to pay their dues. This would,
have the impact of alerting Citizens about,
those who are defaulting in payments and,
could also have some impact in shaming,
them.,
RBI had by its Circular DBOD No.,
"BC/CIS/47/20.16.002/94 dated April 23, 1994",
directed all banks to send a report on their,
"defaulters, which it would share with all banks",
"and financial institutions, with the following",
objectives:,
1) To alert banks and financial institutions (FIs),
and to put them on guard against borrowers,
who have defaulted in their dues to lending,
institutions;,
2) To make public the names of the borrowers,
who have defaulted and against whom suits,
"have been filed by banks/ FIs.""",
69,
"80. At this juncture, we may refer the decision of this Court",
"in Mardia Chemicals Limited vs. Union of India, (2004) 4",
"SCC 311, wherein this court while considering the validity of",
SARFAESI Act and recovery of non-performing assets by,
"banks and financial institutions in India, held :-",
""".............it may be observed that though the",
transaction may have a character of a private,
contract yet the question of great importance behind,
such transactions as a whole having far reaching,
effect on the economy of the country cannot be,
"ignored, purely restricting it to individual",
transactions more particularly when financing is,
through banks and financial institutions utilizing the,
"money of the people in general namely, the",
depositors in the banks and public money at the,
"disposal of the financial institutions. Therefore,",
wherever public interest to such a large extent is,
involved and it may become necessary to achieve an,
"object which serves the public purposes, individual",
rights may have to give way. Public interest has,
always been considered to be above the private,
"interest. Interest of an individual may, to some",
"extent, be affected but it cannot have the potential of",
taking over the public interest having an impact in,
"the socio- economic drive of the country...........""",
81. In rest of the cases the CIC has considered elaborately,
the information sought for and passed orders which in our,
"opinion do not suffer from any error of law, irrationality or",
arbitrariness.,
70,
"82. We have, therefore, given our anxious consideration to",
the matter and came to the conclusion that the Central,
Information Commissioner has passed the impugned orders,
"giving valid reasons and the said orders, therefore, need no",
interference by this Court.,
83. There is no merit in all these cases and hence they are,
dismissed.,
..................................J.,
(M.Y. Eqbal),
..................................J.,
(C. Nagappan ),
New Delhi,
"December 16, 2015",
71,
ITEM NO.1A COURT NO.9 SECTION XVIA,
(For Judgment),
S U P R E M E C O U R T O F I N D I A,
RECORD OF PROCEEDINGS,
Transfer Case (Civil) No.91/2015 @ T.P.(C) No.707/2012,
RESERVE BANK OF INDIA Petitioner(s),
VERSUS,
JAYANTILAL N. MISTRY Respondent(s),
WITH T.C.(C) No.92/2015 @ T.P.(C) No.708/2012,
T.C.(C) No. 93/2015 @ T.P.(C) No.711/2012,
T.C.(C) No. 94/2015 @ T.P.(C) No.712/2012,
T.C.(C) No. 95/2015 @ T.P.(C) No.713/2012,
T.C.(C) No. 96/2015 @ T.P.(C) No.715/2012,
T.C.(C) No. 97/2015 @ T.P.(C) No.716/2012,
T.C.(C) No. 98/2015 @ T.P.(C) No.717/2012,
T.C.(C) No. 99/2015 @ T.P.(C) No.718/2012,
T.C.(C) No. 100/2015 @ T.P.(C) No.709/2012,
T.C.(C) No. 101/2015 @ T.P.(C) No.714/2012,
Date : 16/12/2015 These Cases were called on for,
pronouncement of Judgment today.,
"For Petitioner(s) Mr. T. R. Andhyarujina, Sr. Adv.",
"Mr. Kuldeep S. Parihar, Adv.",
"Mr. H. S. Parihar,Adv.",
"Mr. Soumik Gitosal, Adv.",
"Mr. Siddharth Sijoria, Adv.",
"Mr. P. Narasimhan,Adv.",
"Mr. Bharat Sangal,Adv.",
"For Respondent(s) Dr. Lalit Bhasin, Adv.",
"Ms. Nina Gupta, Adv.",
"Mr. Mudit Sharma,Adv.",
72,
"Mr. Prashant Bhushan,Adv.",
"Mr. H. S. Parihar,Adv.",
"Ms. Jyoti Mendiratta,Adv.",
"Mr. K.R. Anand, Adv.",
"Mr. Vivek Gupta,Adv.",
"Ms. Manisha T. Karia,Adv.",
"Ms. Srishti Rani, Adv.",
"Mr. Rakesh K. Sharma,Adv.",
"Mr. Amol B. Karande, Adv.",
Hon’ble Mr. Justice M. Y. Eqbal pronounced the,
reportable Judgment of the Bench comprising of His Lordship,
and Hon’ble Mr. Justice C. Nagappan.,
These transferred Cases are dismissed in terms of the,
signed reportable judgment.,
(Sanjay Kumar-II) (Indu Pokhriyal),
Court Master Court Master,
(Signed Order is placed on the file),
73,
Reportable,
IN THE SUPREME COURT OF INDIA,
CIVIL APPELALTE JURISDICTION,
CIVIL APPEAL NO.6454 OF 2011,
[Arising out of SLP [C] No.7526/2009],
Central Board of Secondary Education & Anr. … Appellants,
Vs.,
Aditya Bandopadhyay & Ors. … Respondents,
With,
CA No. 6456 of 2011 (@ SLP (C) No.9755 of 2009),
CA Nos.6457-6458 of 2011 (@ SLP (C) Nos.11162-11163 of 2009),
CA No.6461 of 2011 (@ SLP (C) No.11670 of 2009),
CA Nos.6462 of 2011 (@ SLP (C) No.13673 of 2009),
CA Nos.6464 of 2011 (@ SLP (C) No.17409 of 2009),
CA Nos. 6459 of 2011 (@ SLP (C) No.9776 of 2010),
CA Nos.6465-6468 of 2011 (@ SLP (C) Nos.30858-30861 of 2009),
J U D G M E N T,
"R.V.RAVEENDRAN, J.",
"Leave granted. For convenience, we will refer to the facts of the first",
case.,
"2. The first respondent appeared for the Secondary School Examination,",
2008 conducted by the Central Board of Secondary Education (for short,
2,
‘CBSE’ or the ‘appellant’). When he got the mark sheet he was disappointed,
with his marks. He thought that he had done well in the examination but his,
answer-books were not properly valued and that improper valuation had,
resulted in low marks. Therefore he made an application for inspection and,
re-evaluation of his answer-books. CBSE rejected the said request by letter,
dated 12.7.2008. The reasons for rejection were:,
(i) The information sought was exempted under Section 8(1)(e) of RTI,
Act since CBSE shared fiduciary relationship with its evaluators and,
maintain confidentiality of both manner and method of evaluation.,
(ii) The Examination Bye-laws of the Board provided that no candidate,
shall claim or is entitled to re-evaluation of his answers or disclosure,
or inspection of answer book(s) or other documents.,
(iii) The larger public interest does not warrant the disclosure of such,
information sought.,
"(iv) The Central Information Commission, by its order dated 23.4.2007 in",
appeal no. ICPB/A-3/CIC/2006 dated 10.2.2006 had ruled out such,
disclosure.”,
3. Feeling aggrieved the first respondent filed W.P. No.18189(W)/2008,
before the Calcutta High Court and sought the following reliefs : (a) for a,
declaration that the action of CBSE in excluding the provision of re-,
"evaluation of answer-sheets, in regard to the examinations held by it was",
"illegal, unreasonable and violative of the provisions of the Constitution of",
3,
India; (b) for a direction to CBSE to appoint an independent examiner for re-,
evaluating his answer-books and issue a fresh marks card on the basis of re-,
evaluation; (c) for a direction to CBSE to produce his answer-books in,
regard to the 2008 Secondary School Examination so that they could be,
properly reviewed and fresh marks card can be issued with re-evaluation,
marks; (d) for quashing the communication of CBSE dated 12.7.2008 and,
for a direction to produce the answer-books into court for inspection by the,
first respondent. The respondent contended that section 8(1)(e) of Right to,
"Information Act, 2005 (‘RTI Act’ for short) relied upon by CBSE was not",
applicable and relied upon the provisions of the RTI Act to claim inspection.,
"4. CBSE resisted the petition. It contended that as per its Bye-laws, re-",
evaluation and inspection of answer-books were impermissible and what,
was permissible was only verification of marks. They relied upon the CBSE,
"Examination Bye-law No.61, relevant portions of which are extracted",
below:,
“61. Verification of marks obtained by a Candidate in a subject,
(i) A candidate who has appeared at an examination conducted by the,
Board may apply to the concerned Regional Officer of the Board for,
verification of marks in any particular subject. The verification will be,
restricted to checking whether all the answer's have been evaluated and,
that there has been no mistake in the totalling of marks for each question,
in that subject and that the marks have been transferred correctly on the,
title page of the answer book and to the award list and whether the,
4,
supplementary answer book(s) attached with the answer book mentioned,
by the candidate are intact. No revaluation of the answer book or,
supplementary answer book(s) shall be done.,
(ii) Such an application must be made by the candidate within 21 days,
from the date of the declaration of result for Main Examination and 15,
days for Compartment Examination.,
(iii) All such applications must be accompanied by payment of fee as,
prescribed by the Board from time to time.,
"(iv) No candidate shall claim, or be entitled to, revaluation of his/her",
answers or disclosure or inspection of the answer book(s) or other,
documents.,
xxxx,
(vi) In no case the verification of marks shall be done in the presence of,
"the candidate or anyone else on his/her behalf, nor will the answer books",
be shown to him/her or his/her representative.,
(vii) Verification of marks obtained by a candidate will be done by the,
officials appointed by or with the approval of the Chairman.,
"(viii) The marks, on verification will be revised upward or downward, as",
per the actual marks obtained by the candidate in his/her answer book.,
xxxx,
62. Maintenance of Answer Books,
The answer books shall be maintained for a period of three months and,
shall thereafter be disposed of in the manner as decided by the Chairman,
from time to time.”,
(emphasis supplied),
CBSE submitted that 12 to 13 lakhs candidates from about 9000 affiliated,
schools across the country appear in class X and class XII examinations,
conducted by it and this generates as many as 60 to 65 lakhs of answer-,
"books; that as per Examination Bye-law No.62, it maintains the answer",
5,
books only for a period of three months after which they are disposed of. It,
was submitted that if candidates were to be permitted to seek re-evaluation,
"of answer books or inspection thereof, it will create confusion and chaos,",
subjecting its elaborate system of examinations to delay and disarray. It was,
"stated that apart from class X and class XII examinations, CBSE also",
conducts several other examinations (including the All India Pre-Medical,
"Test, All India Engineering Entrance Examination and Jawahar Navodaya",
Vidyalaya’s Selection Test). If CBSE was required to re-evaluate the,
answer-books or grant inspection of answer-books or grant certified copies,
"thereof, it would interfere with its effective and efficient functioning, and",
will also require huge additional staff and infrastructure. It was submitted,
that the entire examination system and evaluation by CBSE is done in a,
scientific and systemic manner designed to ensure and safeguard the high,
academic standards and at each level utmost care was taken to achieve the,
"object of excellence, keeping in view the interests of the students. CBSE",
referred to the following elaborate procedure for evaluation adopted by it :,
“The examination papers are set by the teachers with at least 20 years of,
teaching experience and proven integrity. Paper setters are normally,
appointed from amongst academicians recommended by then Committee,
of courses of the Board. Every paper setter is asked to set more than one,
set of question papers which are moderated by a team of moderators who,
are appointed from the academicians of the University or from amongst,
the Senior Principals. The function of the moderation team is to ensure,
correctness and consistency of different sets of question papers with the,
curriculum and to assess the difficulty level to cater to the students of,
6,
different schools in different categories. After assessing the papers from,
"every point of view, the team of moderators gives a declaration whether",
"the whole syllabus is covered by a set of question papers, whether the",
distribution of difficulty level of all the sets is parallel and various other,
aspects to ensure uniform standard. The Board also issues detailed,
instructions for the guidance of the moderators in order to ensure uniform,
criteria for assessment.,
The evaluation system on the whole is well organized and fool-proof. All,
the candidates are examined through question papers set by the same,
paper setters. Their answer books are marked with fictitious roll numbers,
so as to conceal their identity. The work of allotment of fictitious roll,
number is carried out by a team working under a Chief Secrecy Officer,
having full autonomy. The Chief Secrecy Officer and his team of,
assistants are academicians drawn from the Universities and other,
autonomous educational bodies not connected with the Board. The Chief,
Secrecy Officer himself is usually a person of the rank of a University,
professor. No official of the Board at the Central or Regional level is,
associated with him in performance of the task assigned to him. The codes,
of fictitious roll numbers and their sequences are generated by the Chief,
Secrecy Officer himself on the basis of mathematical formula which,
randomize the real roll numbers and are known only to him and his team.,
This ensures complete secrecy about the identification of the answer book,
"so much so, that even the Chairman, of the Board and the Controller of",
Examination of the Board do not have any information regarding the,
fictitious roll numbers granted by the Chief Secrecy Officer and their real,
counterpart numbers.,
"At the evaluation stage, the Board ensures complete fairness and",
uniformity by providing a marking scheme which is uniformity applicable,
to all the examiners in order to eliminate the chances of subjectivity.,
These marking schemes are jointly prepared at the Headquarters of the,
Board in Delhi by the Subject Experts of all the regions. The main purpose,
of the marking scheme is to maintain uniformity in the evaluation of the,
answer books.,
The evaluation of the answer books in all major subjects including,
"mathematics, science subjects is done in centralized “on the spot”",
evaluation centers where the examiners get answer book in interrupted,
"serial orders. Also, the answer books are jumbled together as a result of",
"which the examiners, say in Bangalore may be marking the answer book",
"of a candidate who had his examination in Pondicherry, Goa, Andaman",
"and Nicobar islands, Kerala, Andhra Pradesh, Tamil Nadu or Karnataka",
itself but he has no way of knowing exactly which answer book he is,
examining. The answer books having been marked with fictitious roll,
numbers give no clue to any examiner about the state or territory it,
7,
belongs to. It cannot give any clue about the candidate’s school or centre,
of examination. The examiner cannot have any inclination to do any,
favour to a candidate because he is unable to decodify his roll number or,
"to know as to which school, place or state or territory he belongs to.",
The examiners check all the questions in the papers thoroughly under the,
supervision of head examiner and award marks to the sub parts,
individually not collectively. They take full precautions and due attention,
is given while assessing an answer book to do justice to the candidate. Re-,
evaluation is administratively impossible to be allowed in a Board where,
lakhs of students take examination in multiple subjects.,
There are strict instructions to the additional head examiners not to allow,
any shoddy work in evaluation and not to issue more than 20-25 answer,
books for evaluation to an examiner on a single day. The examiners are,
practicing teachers who guard the interest of the candidates. There is no,
ground to believe that they do unjust marking and deny the candidates,
their due. It is true that in some cases totaling errors have been detected at,
the stage of scrutiny or verification of marks. In order to minimize such,
"errors and to further strengthen and to improve its system, from 1993",
checking of totals and other aspects of the answers has been trebled in,
order to detect and eliminate all lurking errors.,
The results of all the candidates are reviewed by the Results Committee,
functioning at the Head Quarters. The Regional Officers are not the,
number of this Committee. This Committee reviews the results of all the,
regions and in case it decides to standardize the results in view of the,
"results shown by the regions over the previous years, it adopts a uniform",
policy for the candidates of all the regions. No special policy is adopted,
"for any region, unless there are some special reasons. This practice of",
awarding standardized marks in order to moderate the overall results is a,
practice common to most of the Boards of Secondary Education. The,
exact number of marks awarded for the purpose of standardization in,
different subjects varies from year to year. The system is extremely,
impersonalized and has no room for collusion infringement. It is in a word,
a scientific system.”,
CBSE submitted that the procedure evolved and adopted by it ensures,
fairness and accuracy in evaluation of answer-books and made the entire,
process as foolproof as possible and therefore denial of re-evaluation or,
8,
inspection or grant of copies cannot be considered to be denial of fair play or,
unreasonable restriction on the rights of the students.,
5. A Division Bench of the High Court heard and disposed of the said,
writ petition along with the connected writ petitions (relied by West Bengal,
Board of Secondary Education and others) by a common judgment dated,
5.2.2009. The High Court held that the evaluated answer-books of an,
examinee writing a public examination conducted by statutory bodies like,
"CBSE or any University or Board of Secondary Education, being a",
"‘document, manuscript record, and opinion’ fell within the definition of",
“information” as defined in section 2(f) of the RTI Act. It held that the,
provisions of the RTI Act should be interpreted in a manner which would,
lead towards dissemination of information rather than withholding the same;,
"and in view of the right to information, the examining bodies were bound to",
provide inspection of evaluated answer books to the examinees.,
Consequently it directed CBSE to grant inspection of the answer books to,
the examinees who sought information. The High Court however rejected,
"the prayer made by the examinees for re-evaluation of the answer-books, as",
that was not a relief that was available under RTI Act. RTI Act only,
"provided a right to access information, but not for any consequential reliefs.",
9,
"Feeling aggrieved by the direction to grant inspection, CBSE has filed this",
appeal by special leave.,
6. Before us the CBSE contended that the High Court erred in (i),
"directing CBSE to permit inspection of the evaluated answer books, as that",
"would amount to requiring CBSE to disobey its Examination Bye-law 61(4),",
which provided that no candidate shall claim or be entitled to re-evaluation,
of answer books or disclosure/inspection of answer books; (ii) holding that,
"Bye-law 61(4) was not binding upon the examinees, in view of the",
"overriding effect of the provisions of the RTI Act, even though the validity",
of that bye-law had not been challenged; (iii) not following the decisions of,
this court in Maharashtra State Board of Secondary Education vs. Paritosh,
"B. Sheth [1984 (4) SCC 27], Parmod Kumar Srivastava vs. Chairman, Bihar",
"PAC [2004 (6) SCC 714], Board of Secondary Education vs. Pavan Ranjan",
"P [2004 (13) SCC 383], Board of Secondary Education vs. S [2007 (1) SCC",
"603] and Secretary, West Bengal Council of Higher Secondary Education",
vs. I Dass [2007 (8) SCC 242]; and (iv) holding that the examinee had a,
right to inspect his answer book under section 3 of the RTI Act and the,
examining bodies like CBSE were not exempted from disclosure of,
information under section 8(1)(e) of the RTI Act. The appellants contended,
"that they were holding the “information” (in this case, the evaluated answer",
10,
books) in a fiduciary relationship and therefore exempted under section,
8(1)(e) of the RTI Act.,
7. The examinees and the Central Information Commission contended,
that the object of the RTI Act is to ensure maximum disclosure of,
information and minimum exemptions from disclosure; that an examining,
"body does not hold the evaluated answer books, in any fiduciary relationship",
either with the student or the examiner; and that the information sought by,
"any examinee by way of inspection of his answer books, will not fall under",
any of the exempted categories of information enumerated in section 8 of the,
RTI Act. It was submitted that an examining body being a public authority,
"holding the ‘information’, that is, the evaluated answer-books, and the",
inspection of answer-books sought by the examinee being exercise of ‘right,
"to information’ as defined under the Act, the examinee as a citizen has the",
right to inspect the answer-books and take certified copies thereof. It was,
"also submitted that having regard to section 22 of the RTI Act, the",
provisions of the said Act will have effect notwithstanding anything,
"inconsistent in any law and will prevail over any rule, regulation or bye law",
of the examining body barring or prohibiting inspection of answer books.,
11,
"8. On the contentions urged, the following questions arise for our",
consideration :,
(i) Whether an examinee’s right to information under the RTI Act,
includes a right to inspect his evaluated answer books in a public,
examination or taking certified copies thereof?,
(ii) Whether the decisions of this court in Maharashtra State Board of,
Secondary Education [1984 (4) SCC 27] and other cases referred to,
"above, in any way affect or interfere with the right of an examinee",
seeking inspection of his answer books or seeking certified copies,
thereof?,
(iii) Whether an examining body holds the evaluated answer books “in a,
fiduciary relationship” and consequently has no obligation to give,
inspection of the evaluated answer books under section 8 (1)(e) of,
RTI Act?,
(iv) If the examinee is entitled to inspection of the evaluated answer books,
"or seek certified copies thereof, whether such right is subject to any",
"limitations, conditions or safeguards?",
Relevant Legal Provisions,
"9. To consider these questions, it is necessary to refer to the statement of",
"objects and reasons, the preamble and the relevant provisions of the RTI",
12,
"Act. RTI Act was enacted in order to ensure smoother, greater and more",
effective access to information and provide an effective framework for,
effectuating the right of information recognized under article 19 of the,
Constitution. The preamble to the Act declares the object sought to be,
achieved by the RTI Act thus:,
“An Act to provide for setting out the practical regime of right to,
information for citizens to secure access to information under the control,
"of public authorities, in order to promote transparency and accountability",
"in the working of every public authority, the constitution of a Central",
Information Commission and State Information Commissions and for,
matters connected therewith or incidental thereto.,
Whereas the Constitution of India has established democratic Republic;,
And whereas democracy requires an informed citizenry and transparency,
of information which are vital to its functioning and also to contain,
corruption and to hold Governments and their instrumentalities,
accountable to the governed;,
And whereas revelation of information in actual practice is likely to,
conflict with other public interests including efficient operations of the,
"Governments, optimum use of limited fiscal resources and the",
preservation of confidentiality of sensitive information;,
And whereas it is necessary to harmonise these conflicting interests while,
preserving the paramountcy of the democratic ideal.”,
Chapter II of the Act containing sections 3 to 11 deals with right to,
information and obligations of public authorities. Section 3 provides for,
"right to information and reads thus: “Subject to the provisions of this Act,",
all citizens shall have the right to information.” This section makes it clear,
13,
"that the RTI Act gives a right to a citizen to only access information, but not",
seek any consequential relief based on such information. Section 4 deals,
with obligations of public authorities to maintain the records in the manner,
provided and publish and disseminate the information in the manner,
provided. Section 6 deals with requests for obtaining information. It,
provides that applicant making a request for information shall not be,
required to give any reason for requesting the information or any personal,
details except those that may be necessary for contacting him. Section 8,
deals with exemption from disclosure of information and is extracted in its,
entirety:,
“8. Exemption from disclosure of information -- (1) Notwithstanding,
"anything contained in this Act, there shall be no obligation to give any",
"citizen,-",
"(a) information, disclosure of which would",
"prejudicially affect the sovereignty and integrity of India, the security,",
"strategic, scientific or economic interests of the State, relation with foreign",
State or lead to incitement of an offence;,
(b) information which has been expressly forbidden to,
be published by any court of law or tribunal or the disclosure of which,
may constitute contempt of court;,
"(c) information, the disclosure of which would cause a",
breach of privilege of Parliament or the State Legislature;,
"(d) information including commercial confidence, trade",
"secrets or intellectual property, the disclosure of which would harm the",
"competitive position of a third party, unless the competent authority is",
satisfied that larger public interest warrants the disclosure of such,
information;,
14,
(e) information available to a person in his fiduciary,
"relationship, unless the competent authority is satisfied that the larger",
public interest warrants the disclosure of such information;,
(f) information received in confidence from foreign,
Government;,
"(g) information, the disclosure of which would",
endanger the life or physical safety of any person or identify the source of,
information or assistance given in confidence for law enforcement or,
security purposes;,
(h) information which would impede the process of,
investigation or apprehension or prosecution of offenders;,
(i) cabinet papers including records of deliberations of,
"the Council of Ministers, Secretaries and other officers:",
"Provided that the decisions of Council of Ministers, the reasons thereof,",
and the material on the basis of which the decisions were taken shall be,
"made public after the decision has been taken, and the matter is complete,",
or over:,
Provided further that those matters which come under the exemptions,
specified in this section shall not be disclosed;,
(j) information which relates to personal information,
the disclosure of which has no relationship to any public activity or,
"interest, or which would cause unwarranted invasion of the privacy of the",
individual unless the Central Public Information Officer or the State,
"Public Information Officer or the appellate authority, as the case may be,",
is satisfied that the larger public interest justifies the disclosure of such,
information:,
Provided that the information which cannot be denied to the Parliament or,
a State Legislature shall not be denied to any person.,
(2) Notwithstanding anything in the Official Secrets,
"Act, 1923 (19 of 1923) nor any of the exemptions permissible in",
"accordance with sub-section (1), a public authority may allow access to",
"information, if public interest in disclosure outweighs the harm to the",
protected interests.,
"(3) Subject to the provisions of clauses (a), (c) and (i)",
"of sub-section (1), any information relating to any occurrence, event or",
"matter which has taken place, occurred or happened twenty years before",
15,
the date on which any request is made under secton 6 shall be provided to,
any person making a request under that section:,
Provided that where any question arises as to the date from which the said,
"period of twenty years has to be computed, the decision of the Central",
"Government shall be final, subject to the usual appeals provided for in this",
Act.”,
(emphasis supplied),
"Section 9 provides that without prejudice to the provisions of section 8, a",
request for information may be rejected if such a request for providing,
access would involve an infringement of copyright. Section 10 deals with,
severability of exempted information and sub-section (1) thereof is extracted,
below:,
“(1) Where a request for access to information is rejected on the ground,
"that it is in relation to information which is exempt from disclosure, then,",
"notwithstanding anything contained in this Act, access may be provided to",
that part of the record which does not contain any information which is,
exempt from disclosure under this Act and which can reasonably be,
severed from any part that contains exempt information.”,
Section 11 deals with third party information and sub-section (1) thereof is,
extracted below:,
“(1) Where a Central Public Information Officer or a State Public,
"Information Officer, as the case may be, intends to disclose any",
"information or record, or part thereof on a request made under this Act,",
which relates to or has been supplied by a third party and has been treated,
"as confidential by that third party, the Central Public Information Officer",
"or State Public Information Officer, as the case may be, shall, within five",
"days from the receipt of the request, give a written notice to such third",
party of the request and of the fact that the Central Public Information,
"Officer or State Public Information Officer, as the case may be, intends to",
16,
"disclose the information or record, or part thereof, and invite the third",
"party to make a submission in writing or orally, regarding whether the",
"information should be disclosed, and such submission of the third party",
shall be kept in view while taking a decision about disclosure of,
information:,
Provided that except in the case of trade or commercial secrets protected,
"by law, disclosure may be allowed if the public interest in disclosure",
outweighs in importance any possible harm or injury to the interests of,
such third party.”,
"The definitions of information, public authority, record and right to",
"information in clauses (f), (h), (i) and (j) of section 2 of the RTI Act are",
extracted below:,
"“(f) ""information"" means any material in any form, including records,",
"documents, memos, e-mails, opinions, advices, press releases, circulars,",
"orders, logbooks, contracts, reports, papers, samples, models, data material",
held in any electronic form and information relating to any private body,
which can be accessed by a public authority under any other law for the,
time being in force;,
"(h) ""public authority"" means any authority or body or institution of self-",
government established or constituted-,
(a) by or under the Constitution;,
(b) by any other law made by Parliament;,
(c) by any other law made by State Legislature;,
"(d) by notification issued or order made by the appropriate Government,",
and includes any-,
"(i) body owned, controlled or substantially financed;",
"(ii) non-Government organisation substantially financed,",
directly or indirectly by funds provided by the appropriate Government;,
17,
"(i) ""record"" includes-",
"(a) any document, manuscript and file;",
"(b) any microfilm, microfiche and facsimile copy of a document;",
(c) any reproduction of image or images embodied in such microfilm,
(whether enlarged or not); and,
(d) any other material produced by a computer or any other device;,
"(j) ""right to information"" means the right to information accessible under",
this Act which is held by or under the control of any public authority and,
includes the right to-,
"(i) inspection of work, documents, records;",
"(ii) taking notes, extracts or certified copies of documents or records;",
(iii) taking certified samples of material;,
"(iv) obtaining information in the form of diskettes, floppies, tapes,",
video cassettes or in any other electronic mode or through printouts,
where such information is stored in a computer or in any other,
device;,
Section 22 provides for the Act to have overriding effect and is extracted,
below:,
“The provisions of this Act shall have effect notwithstanding anything,
"inconsistent therewith contained in the Official Secrets Act, 1923 (19 of",
"1923), and any other law for the time being in force or in any instrument",
having effect by virtue of any law other than this Act.”,
10. It will also be useful to refer to a few decisions of this Court which,
considered the importance and scope of the right to information. In State of,
"Uttar Pradesh v. Raj Narain - (1975) 4 SCC 428, this Court observed:",
18,
"“In a government of responsibility like ours, where all the agents of the",
"public must be responsible for their conduct, there can but few secrets.",
"The people of this country have a right to know every public act,",
"everything, that is done in a public way, by their public functionaries.",
They are entitled to know the particulars of every public transaction in all,
"its bearing. The right to know, which is derived from the concept of",
"freedom of speech, though not absolute, is a factor which should make one",
"wary, when secrecy is claimed for transactions which can, at any rate,",
have no repercussion on public security.”,
(emphasis supplied),
"In Dinesh Trivedi v. Union of India – (1997) 4 SCC 306, this Court held:",
"“In modern constitutional democracies, it is axiomatic that citizens have a",
"right to know about the affairs of the Government which, having been",
"elected by them, seeks to formulate sound policies of governance aimed at",
"their welfare. However, like all other rights, even this right has recognised",
"limitations; it is, by no means, absolute. ………………Implicit in this",
assertion is the proposition that in transaction which have serious,
"repercussions on public security, secrecy can legitimately be claimed",
because it would then be in the public interest that such matters are not,
publicly disclosed or disseminated.,
To ensure the continued participation of the people in the democratic,
"process, they must be kept informed of the vital decisions taken by the",
"Government and the basis thereof. Democracy, therefore, expects",
openness and openness is a concomitant of a free society. Sunlight is the,
best disinfectant. But it is equally important to be alive to the dangers that,
lie ahead. It is important to realise that undue popular pressure brought to,
bear on decision-makers is Government can have frightening side-effects.,
If every action taken by the political or executive functionary is,
transformed into a public controversy and made subject to an enquiry to,
"soothe popular sentiments, it will undoubtedly have a chilling effect on the",
independence of the decision-maker who may find it safer not to take any,
decision. It will paralyse the entire system and bring it to a grinding halt.,
So we have two conflicting situations almost enigmatic and we think the,
answer is to maintain a fine balance which would serve public interest.”,
"In People’s Union for Civil Liberties v. Union of India - (2004) 2 SCC 476,",
this Court held that right of information is a facet of the freedom of “speech,
19,
and expression” as contained in Article 19(1)(a) of the Constitution of India,
and such a right is subject to any reasonable restriction in the interest of the,
security of the state and subject to exemptions and exceptions.,
Re : Question (i),
11. The definition of ‘information’ in section 2(f) of the RTI Act refers to,
"any material in any form which includes records, documents, opinions,",
papers among several other enumerated items. The term ‘record’ is defined,
"in section 2(i) of the said Act as including any document, manuscript or file",
among others. When a candidate participates in an examination and writes,
his answers in an answer-book and submits it to the examining body for,
"evaluation and declaration of the result, the answer-book is a document or",
record. When the answer-book is evaluated by an examiner appointed by the,
"examining body, the evaluated answer-book becomes a record containing",
the ‘opinion’ of the examiner. Therefore the evaluated answer-book is also,
an ‘information’ under the RTI Act.,
12. Section 3 of RTI Act provides that subject to the provisions of this,
Act all citizens shall have the right to information. The term ‘right to,
information’ is defined in section 2(j) as the right to information accessible,
20,
under the Act which is held by or under the control of any public authority.,
"Having regard to section 3, the citizens have the right to access to all",
information held by or under the control of any public authority except those,
excluded or exempted under the Act. The object of the Act is to empower,
the citizens to fight against corruption and hold the Government and their,
"instrumentalities accountable to the citizens, by providing them access to",
information regarding functioning of every public authority. Certain,
safeguards have been built into the Act so that the revelation of information,
will not conflict with other public interests which include efficient operation,
"of the governments, optimum use of limited fiscal resources and",
preservation of confidential and sensitive information. The RTI Act provides,
access to information held by or under the control of public authorities and,
not in regard to information held by any private person. The Act provides,
the following exclusions by way of exemptions and exceptions (under,
"sections 8, 9 and 24) in regard to information held by public authorities:",
(i) Exclusion of the Act in entirety under section 24 to intelligence and,
security organizations specified in the Second Schedule even though,
"they may be “public authorities”, (except in regard to information",
with reference to allegations of corruption and human rights,
violations).,
21,
(ii) Exemption of the several categories of information enumerated in,
section 8(1) of the Act which no public authority is under an,
"obligation to give to any citizen, notwithstanding anything contained",
"in the Act [however, in regard to the information exempted under",
"clauses (d) and (e), the competent authority, and in regard to the",
"information excluded under clause (j), Central Public Information",
"Officer/State Public Information Officer/the Appellate Authority, may",
"direct disclosure of information, if larger public interest warrants or",
justifies the disclosure].,
(iii) If any request for providing access to information involves an,
"infringement of a copyright subsisting in a person other than the State,",
the Central/State Public Information Officer may reject the request,
under section 9 of RTI Act.,
"Having regard to the scheme of the RTI Act, the right of the citizens to",
"access any information held or under the control of any public authority,",
should be read in harmony with the exclusions/exemptions in the Act.,
"13. The examining bodies (Universities, Examination Boards, CBSC etc.)",
are neither security nor intelligence organisations and therefore the,
exemption under section 24 will not apply to them. The disclosure of,
information with reference to answer-books does not also involve,
infringement of any copyright and therefore section 9 will not apply.,
22,
"Resultantly, unless the examining bodies are able to demonstrate that the",
evaluated answer-books fall under any of the categories of exempted,
"‘information’ enumerated in clauses (a) to (j) of sub-section (1) section 8,",
they will be bound to provide access to the information and any applicant,
"can either inspect the document/record, take notes, extracts or obtain",
certified copies thereof.,
14. The examining bodies contend that the evaluated answer-books are,
"exempted from disclosure under section 8(1)(e) of the RTI Act, as they are",
‘information’ held in its fiduciary relationship. They fairly conceded that,
evaluated answer-books will not fall under any other exemptions in sub-,
section (1) of section 8. Every examinee will have the right to access his,
"evaluated answer-books, by either inspecting them or take certified copies",
"thereof, unless the evaluated answer-books are found to be exempted under",
section 8(1)(e) of the RTI Act.,
Re : Question (ii),
"15. In Maharashtra State Board, this Court was considering whether",
denial of re-evaluation of answer-books or denial of disclosure by way of,
"inspection of answer books, to an examinee, under Rule 104(1) and (3) of",
23,
"the Maharashtra Secondary and Higher Secondary Board Rules, 1977 was",
violative of principles of natural justice and violative of Articles 14 and 19,
of the Constitution of India. Rule 104(1) provided that no re-evaluation of,
the answer books shall be done and on an application of any candidate,
verification will be restricted to checking whether all the answers have been,
examined and that there is no mistake in the totalling of marks for each,
question in that subject and transferring marks correctly on the first cover,
page of the answer book. Rule 104(3) provided that no candidate shall claim,
or be entitled to re-evaluation of his answer-books or inspection of answer-,
books as they were treated as confidential. This Court while upholding the,
validity of Rule 104(3) held as under :,
“…. the “process of evaluation of answer papers or of subsequent,
verification of marks” under Clause (3) of Regulation 104 does not attract,
the principles of natural justice since no decision making process which,
brings about adverse civil consequences to the examinees in involved. The,
principles of natural justice cannot be extended beyond reasonable and,
rational limits and cannot be carried to such absurd lengths as to make it,
necessary that candidates who have taken a public examination should be,
allowed to participate in the process of evaluation of their performances or,
to verify the correctness of the evaluation made by the examiners by,
themselves conducting an inspection of the answer-books and determining,
whether there has been a proper and fair valuation of the answers by the,
"examiners.""",
So long as the body entrusted with the task of framing the rules or,
"regulations acts within the scope of the authority conferred on it, in the",
sense that the rules or regulations made by it have a rational nexus with,
"the object and purpose of the statute, the court should not concern itself",
with the wisdom or efficaciousness of such rules or regulations…. The,
Legislature and its delegate are the sole repositories of the power to decide,
what policy should be pursued in relation to matters covered by the Act …,
24,
and there is no scope for interference by the Court unless the particular,
provision impugned before it can be said to suffer from any legal,
"infirmity, in the sense of its being wholly beyond the scope of the",
regulation making power or its being inconsistent with any of the,
provisions of the parent enactment or in violation of any of the limitations,
imposed by the Constitution.,
"It was perfectly within the competence of the Board, rather it was its plain",
"duty, to apply its mind and decide as a matter of policy relating to the",
conduct of the examination as to whether disclosure and inspection of the,
"answer books should be allowed to the candidates, whether and to what",
extent verification of the result should be permitted after the results have,
already been announced and whether any right to claim revaluation of the,
answer books should be recognised or provided for. All these are,
undoubtedly matters which have an intimate nexus with the objects and,
"purposes of the enactment and are, therefore, with in the ambit of the",
general power to make regulations….”,
This Court held that Regulation 104(3) cannot be held to be unreasonable,
"merely because in certain stray instances, errors or irregularities had gone",
unnoticed even after verification of the concerned answer books according,
to the existing procedure and it was only after further scrutiny made either,
on orders of the court or in the wake of contentions raised in the petitions,
"filed before a court, that such errors or irregularities were ultimately",
discovered. This court reiterated the view that “the test of reasonableness is,
not applied in vacuum but in the context of life’s realities” and concluded,
"that realistically and practically, providing all the candidates inspection of",
their answer books or re-evaluation of the answer books in the presence of,
the candidates would not be feasible. Dealing with the contention that every,
25,
student is entitled to fair play in examination and receive marks matching his,
"performance, this court held :",
“What constitutes fair play depends upon the facts and circumstances,
relating to each particular given situation. If it is found that every possible,
precaution has been taken and all necessary safeguards provided to ensure,
that the answer books inclusive of supplements are kept in safe custody so,
as to eliminate the danger of their being tampered with and that the,
evaluation is done by the examiners applying uniform standards with,
checks and crosschecks at different stages and that measures for detection,
"of malpractice, etc. have also been effectively adopted, in such cases it",
"will not be correct on the part of the Courts to strike down, the provision",
prohibiting revaluation on the ground that it violates the rules of fair play.,
It appears that the procedure evolved by the Board for ensuring fairness,
and accuracy in evaluation of the answer books has made the system as,
fool proof as can be possible and is entirely satisfactory. The Board is a,
very responsible body. The candidates have taken the examination with,
full awareness of the provisions contained in the Regulations and in the,
declaration made in the form of application for admission to the,
examination they have solemnly stated that they fully agree to abide by the,
"regulations issued by the Board. In the circumstances, when we find that",
"all safeguards against errors and malpractices have been provided for,",
there cannot be said to be any denial of fair play to the examinees by,
reason of the prohibition against asking for revaluation…. “,
This Court concluded that if inspection and verification in the presence of,
"the candidates, or revaluation, have to be allowed as of right, it may lead to",
"gross and indefinite uncertainty, particularly in regard to the relative ranking",
"etc. of the candidate, besides leading to utter confusion on account of the",
enormity of the labour and time involved in the process. This court,
concluded :,
26,
“… the Court should be extremely reluctant to substitute its own views as,
"to what is wise, prudent and proper in relation to academic matters in",
preference to those formulated by professional men possessing technical,
expertise and rich experience of actual day-to-day working of educational,
institutions and the departments controlling them. It will be wholly wrong,
for the court to make a pedantic and purely idealistic approach to the,
"problems of this nature, isolated from the actual realities and grass root",
problems involved in the working of the system and unmindful of the,
consequences which would emanate if a purely idealistic view as opposed,
to a pragmatic one were to be propounded.”,
16. The above principles laid down in Maharashtra State Board have,
"been followed and reiterated in several decisions of this Court, some of",
which are referred to in para (6) above. But the principles laid down in,
decisions such as Maharashtra State Board depend upon the provisions of,
the rules and regulations of the examining body. If the rules and regulations,
"of the examining body provide for re-evaluation, inspection or disclosure of",
"the answer-books, then none of the principles in Maharashtra State Board or",
"other decisions following it, will apply or be relevant. There has been a",
gradual change in trend with several examining bodies permitting inspection,
and disclosure of the answer-books.,
17. It is thus now well settled that a provision barring inspection or,
disclosure of the answer-books or re-evaluation of the answer-books and,
restricting the remedy of the candidates only to re-totalling is valid and,
"binding on the examinee. In the case of CBSE, the provisions barring re-",
27,
"evaluation and inspection contained in Bye-law No.61, are akin to Rule 104",
considered in Maharashtra State Board. As a consequence if an examination,
is governed only by the rules and regulations of the examining body which,
"bar inspection, disclosure or re-evaluation, the examinee will be entitled",
only for re-totalling by checking whether all the answers have been,
evaluated and further checking whether there is no mistake in totaling of,
marks for each question and marks have been transferred correctly to the,
"title (abstract) page. The position may however be different, if there is a",
"superior statutory right entitling the examinee, as a citizen to seek access to",
"the answer books, as information.",
"18. In these cases, the High Court has rightly denied the prayer for re-",
evaluation of answer-books sought by the candidates in view of the bar,
contained in the rules and regulations of the examining bodies. It is also not,
a relief available under the RTI Act. Therefore the question whether re-,
"evaluation should be permitted or not, does not arise for our consideration.",
What arises for consideration is the question whether the examinee is,
entitled to inspect his evaluated answer-books or take certified copies,
"thereof. This right is claimed by the students, not with reference to the rules",
"or bye-laws of examining bodies, but under the RTI Act which enables them",
28,
and entitles them to have access to the answer-books as ‘information’ and,
inspect them and take certified copies thereof. Section 22 of RTI Act,
"provides that the provisions of the said Act will have effect, notwithstanding",
anything inconsistent therewith contained in any other law for the time being,
in force. Therefore the provisions of the RTI Act will prevail over the,
provisions of the bye-laws/rules of the examining bodies in regard to,
"examinations. As a result, unless the examining body is able to demonstrate",
that the answer-books fall under the exempted category of information,
"described in clause (e) of section 8(1) of RTI Act, the examining body will",
be bound to provide access to an examinee to inspect and take copies of his,
"evaluated answer-books, even if such inspection or taking copies is barred",
under the rules/bye-laws of the examining body governing the examinations.,
"Therefore, the decision of this Court in Maharashtra State Board (supra)",
"and the subsequent decisions following the same, will not affect or interfere",
with the right of the examinee seeking inspection of answer-books or taking,
certified copies thereof.,
Re : Question (iii),
19. Section 8(1) enumerates the categories of information which are,
exempted from disclosure under the provisions of the RTI Act. The,
29,
examining bodies rely upon clause (e) of section 8(1) which provides that,
"there shall be no obligation on any public authority to give any citizen,",
information available to it in its fiduciary relationship. This exemption is,
subject to the condition that if the competent authority (as defined in section,
2(e) of RTI Act) is satisfied that the larger public interest warrants the,
"disclosure of such information, the information will have to be disclosed.",
Therefore the question is whether the examining body holds the evaluated,
answer-books in its fiduciary relationship.,
20. The term ‘fiduciary’ and ‘fiduciary relationship’ refer to different,
"capacities and relationship, involving a common duty or obligation.",
"20.1) Black’s Law Dictionary (7th Edition, Page 640) defines ‘fiduciary",
relationship’ thus:,
“A relationship in which one person is under a duty to act for the benefit,
of the other on matters within the scope of the relationship. Fiduciary,
"relationships – such as trustee-beneficiary, guardian-ward, agent-principal,",
and attorney-client – require the highest duty of care. Fiduciary,
relationships usually arise in one of four situations : (1) when one person,
"places trust in the faithful integrity of another, who as a result gains",
"superiority or influence over the first, (2) when one person assumes",
"control and responsibility over another, (3) when one person has a duty to",
act for or give advice to another on matters falling within the scope of the,
"relationship, or (4) when there is a specific relationship that has",
"traditionally been recognized as involving fiduciary duties, as with a",
lawyer and a client or a stockbroker and a customer.”,
30,
20.2) The American Restatements (Trusts and Agency) define ‘fiduciary’ as,
one whose intention is to act for the benefit of another as to matters relevant,
to the relation between them. The Corpus Juris Secundum (Vol. 36A page,
381) attempts to define fiduciary thus :,
“A general definition of the word which is sufficiently comprehensive to,
"embrace all cases cannot well be given. The term is derived from the civil,",
"or Roman, law. It connotes the idea of trust or confidence, contemplates",
"good faith, rather than legal obligation, as the basis of the transaction,",
"refers to the integrity, the fidelity, of the party trusted, rather than his",
"credit or ability, and has been held to apply to all persons who occupy a",
"position of peculiar confidence toward others, and to include those",
informal relations which exist whenever one party trusts and relies on,
"another, as well as technical fiduciary relations.",
"The word ‘fiduciary,’ as a noun, means one who holds a thing in trust for",
"another, a trustee, a person holding the character of a trustee, or a",
"character analogous to that of a trustee, with respect to the trust and",
confidence involved in it and the scrupulous good faith and candor which,
"it requires; a person having the duty, created by his undertaking, to act",
primarily for another’s benefit in matters connected with such,
"undertaking. Also more specifically, in a statute, a guardian, trustee,",
"executor, administrator, receiver, conservator, or any person acting in any",
"fiduciary capacity for any person, trust, or estate. Some examples of what,",
"in particular connections, the term has been held to include and not to",
include are set out in the note.”,
"20.3) Words and Phrases, Permanent Edition (Vol. 16A, Page 41) defines",
‘fiducial relation’ thus :,
“There is a technical distinction between a ‘fiducial relation’ which is,
"more correctly applicable to legal relationships between parties, such as",
"guardian and ward, administrator and heirs, and other similar",
"relationships, and ‘confidential relation’ which includes the legal",
"relationships, and also every other relationship wherein confidence is",
rightly reposed and is exercised.,
"Generally, the term ‘fiduciary’ applies to any person who occupies a",
position of peculiar confidence towards another. It refers to integrity and,
31,
"fidelity. It contemplates fair dealing and good faith, rather than legal",
"obligation, as the basis of the transaction. The term includes those",
informal relations which exist whenever one party trusts and relies upon,
"another, as well as technical fiduciary relations.”",
20.4) In Bristol and West Building Society vs. Mothew [1998 Ch. 1] the term,
fiduciary was defined thus :,
“A fiduciary is someone who has undertaken to act for and on behalf of,
another in a particular matter in circumstances which give rise to a,
relationship of trust and confidence. The distinguishing obligation of a,
fiduciary is the obligation of loyalty….. A fiduciary must act in good faith;,
he must not make a profit out of his trust; he must not place himself in a,
position where his duty and his interest may conflict; he may not act for,
his own benefit or the benefit of a third person without the informed,
consent of his principal.”,
"20.5) In Wolf vs. Superior Court [2003 (107) California Appeals, 4th 25] the",
California Court of Appeals defined fiduciary relationship as under :,
“any relationship existing between the parties to the transaction where one,
of the parties is duty bound to act with utmost good faith for the benefit of,
the other party. Such a relationship ordinarily arises where confidence is,
"reposed by one person in the integrity of another, and in such a relation the",
"party in whom the confidence is reposed, if he voluntarily accepts or",
"assumes to accept the confidence, can take no advantage from his acts",
relating to the interests of the other party without the latter’s knowledge,
and consent.”,
21. The term ‘fiduciary’ refers to a person having a duty to act for the,
"benefit of another, showing good faith and condour, where such other person",
reposes trust and special confidence in the person owing or discharging the,
duty. The term ‘fiduciary relationship’ is used to describe a situation or,
32,
transaction where one person (beneficiary) places complete confidence in,
"another person (fiduciary) in regard to his affairs, business or transaction/s.",
The term also refers to a person who holds a thing in trust for another,
(beneficiary). The fiduciary is expected to act in confidence and for the,
"benefit and advantage of the beneficiary, and use good faith and fairness in",
dealing with the beneficiary or the things belonging to the beneficiary. If the,
"beneficiary has entrusted anything to the fiduciary, to hold the thing in trust",
"or to execute certain acts in regard to or with reference to the entrusted thing,",
the fiduciary has to act in confidence and expected not to disclose the thing,
or information to any third party. There are also certain relationships where,
both the parties have to act in a fiduciary capacity treating the other as the,
beneficiary. Examples of these are : a partner vis-à-vis another partner and,
an employer vis-à-vis employee. An employee who comes into possession,
of business or trade secrets or confidential information relating to the,
"employer in the course of his employment, is expected to act as a fiduciary",
"and cannot disclose it to others. Similarly, if on the request of the employer",
"or official superior or the head of a department, an employee furnishes his",
"personal details and information, to be retained in confidence, the employer,",
the official superior or departmental head is expected to hold such personal,
"information in confidence as a fiduciary, to be made use of or disclosed only",
33,
if the employee’s conduct or acts are found to be prejudicial to the employer.,
"22. In a philosophical and very wide sense, examining bodies can be said",
"to act in a fiduciary capacity, with reference to students who participate in an",
"examination, as a government does while governing its citizens or as the",
present generation does with reference to the future generation while,
preserving the environment. But the words ‘information available to a,
person in his fiduciary relationship’ are used in section 8(1)(e) of RTI Act in,
"its normal and well recognized sense, that is to refer to persons who act in a",
"fiduciary capacity, with reference to a specific beneficiary or beneficiaries",
who are to be expected to be protected or benefited by the actions of the,
"fiduciary – a trustee with reference to the beneficiary of the trust, a guardian",
"with reference to a minor/physically/infirm/mentally challenged, a parent",
"with reference to a child, a lawyer or a chartered accountant with reference",
"to a client, a doctor or nurse with reference to a patient, an agent with",
"reference to a principal, a partner with reference to another partner, a",
"director of a company with reference to a share-holder, an executor with",
"reference to a legatee, a receiver with reference to the parties to a lis, an",
employer with reference to the confidential information relating to the,
"employee, and an employee with reference to business dealings/transaction",
of the employer. We do not find that kind of fiduciary relationship between,
34,
"the examining body and the examinee, with reference to the evaluated",
"answer-books, that come into the custody of the examining body.",
23. The duty of examining bodies is to subject the candidates who have,
completed a course of study or a period of training in accordance with its,
"curricula, to a process of verification/examination/testing of their",
"knowledge, ability or skill, or to ascertain whether they can be said to have",
successfully completed or passed the course of study or training. Other,
specialized Examining Bodies may simply subject candidates to a process of,
"verification by an examination, to find out whether such person is suitable",
"for a particular post, job or assignment. An examining body, if it is a public",
"authority entrusted with public functions, is required to act fairly,",
"reasonably, uniformly and consistently for public good and in public",
interest. This Court has explained the role of an examining body in regard to,
the process of holding examination in the context of examining whether it,
"amounts to ‘service’ to a consumer, in Bihar School Examination Board vs.",
"Suresh Prasad Sinha – (2009) 8 SCC 483, in the following manner:",
"“The process of holding examinations, evaluating answer scripts,",
declaring results and issuing certificates are different stages of a single,
statutory non-commercial function. It is not possible to divide this,
function as partly statutory and partly administrative. When the,
Examination Board conducts an examination in discharge of its statutory,
"function, it does not offer its ""services"" to any candidate. Nor does a",
35,
"student who participates in the examination conducted by the Board, hires",
or avails of any service from the Board for a consideration. On the other,
"hand, a candidate who participates in the examination conducted by the",
"Board, is a person who has undergone a course of study and who requests",
the Board to test him as to whether he has imbibed sufficient knowledge to,
be fit to be declared as having successfully completed the said course of,
"education; and if so, determine his position or rank or competence vis-a-",
vis other examinees. The process is not therefore availment of a service by,
"a student, but participation in a general examination conducted by the",
Board to ascertain whether he is eligible and fit to be considered as having,
successfully completed the secondary education course. The examination,
fee paid by the student is not the consideration for availment of any,
"service, but the charge paid for the privilege of participation in the",
examination.……… The fact that in the course of conduct of the,
"examination, or evaluation of answer-scripts, or furnishing of mark-books",
"or certificates, there may be some negligence, omission or deficiency,",
"does not convert the Board into a service-provider for a consideration, nor",
convert the examinee into a consumer ………”,
It cannot therefore be said that the examining body is in a fiduciary,
relationship either with reference to the examinee who participates in the,
examination and whose answer-books are evaluated by the examining body.,
24. We may next consider whether an examining body would be entitled,
"to claim exemption under section 8(1)(e) of the RTI Act, even assuming that",
it is in a fiduciary relationship with the examinee. That section provides that,
"notwithstanding anything contained in the Act, there shall be no obligation",
to give any citizen information available to a person in his fiduciary,
"relationship. This would only mean that even if the relationship is fiduciary,",
the exemption would operate in regard to giving access to the information,
36,
"held in fiduciary relationship, to third parties. There is no question of the",
"fiduciary withholding information relating to the beneficiary, from the",
beneficiary himself. One of the duties of the fiduciary is to make thorough,
disclosure of all relevant facts of all transactions between them to the,
"beneficiary, in a fiduciary relationship. By that logic, the examining body, if",
"it is in a fiduciary relationship with an examinee, will be liable to make a full",
disclosure of the evaluated answer-books to the examinee and at the same,
"time, owe a duty to the examinee not to disclose the answer-books to anyone",
"else. If A entrusts a document or an article to B to be processed, on",
"completion of processing, B is not expected to give the document or article",
to anyone else but is bound to give the same to A who entrusted the,
"document or article to B for processing. Therefore, if a relationship of",
fiduciary and beneficiary is assumed between the examining body and the,
"examinee with reference to the answer-book, section 8(1)(e) would operate",
as an exemption to prevent access to any third party and will not operate as a,
"bar for the very person who wrote the answer-book, seeking inspection or",
disclosure of it.,
25. An evaluated answer book of an examinee is a combination of two,
different ‘informations’. The first is the answers written by the examinee and,
37,
second is the marks/assessment by the examiner. When an examinee seeks,
inspection of his evaluated answer-books or seeks a certified copy of the,
"evaluated answer-book, the information sought by him is not really the",
"answers he has written in the answer-books (which he already knows), nor",
the total marks assigned for the answers (which has been declared). What he,
"really seeks is the information relating to the break-up of marks, that is, the",
specific marks assigned to each of his answers. When an examinee seeks,
"‘information’ by inspection/certified copies of his answer-books, he knows",
the contents thereof being the author thereof. When an examinee is,
"permitted to examine an answer-book or obtain a certified copy, the",
examining body is not really giving him some information which is held by,
"it in trust or confidence, but is only giving him an opportunity to read what",
he had written at the time of examination or to have a copy of his answers.,
"Therefore, in furnishing the copy of an answer-book, there is no question of",
"breach of confidentiality, privacy, secrecy or trust. The real issue therefore is",
not in regard to the answer-book but in regard to the marks awarded on,
evaluation of the answer-book. Even here the total marks given to the,
examinee in regard to his answer-book are already declared and known to,
the examinee. What the examinee actually wants to know is the break-up of,
"marks given to him, that is how many marks were given by the examiner to",
38,
each of his answers so that he can assess how is performance has been,
evaluated and whether the evaluation is proper as per his hopes and,
"expectations. Therefore, the test for finding out whether the information is",
"exempted or not, is not in regard to the answer book but in regard to the",
evaluation by the examiner.,
26. This takes us to the crucial issue of evaluation by the examiner. The,
examining body engages or employs hundreds of examiners to do the,
evaluation of thousands of answer books. The question is whether the,
information relating to the ‘evaluation’ (that is assigning of marks) is held,
by the examining body in a fiduciary relationship. The examining bodies,
contend that even if fiduciary relationship does not exist with reference to,
"the examinee, it exists with reference to the examiner who evaluates the",
answer-books. On a careful examination we find that this contention has no,
merit. The examining body entrusts the answer-books to an examiner for,
evaluation and pays the examiner for his expert service. The work of,
evaluation and marking the answer-book is an assignment given by the,
examining body to the examiner which he discharges for a consideration.,
"Sometimes, an examiner may assess answer-books, in the course of his",
"employment, as a part of his duties without any specific or special",
39,
remuneration. In other words the examining body is the ‘principal’ and the,
"examiner is the agent entrusted with the work, that is, evaluation of answer-",
"books. Therefore, the examining body is not in the position of a fiduciary",
"with reference to the examiner. On the other hand, when an answer-book is",
"entrusted to the examiner for the purpose of evaluation, for the period the",
answer-book is in his custody and to the extent of the discharge of his,
"functions relating to evaluation, the examiner is in the position of a fiduciary",
with reference to the examining body and he is barred from disclosing the,
contents of the answer-book or the result of evaluation of the answer-book to,
anyone other than the examining body. Once the examiner has evaluated the,
"answer books, he ceases to have any interest in the evaluation done by him.",
"He does not have any copy-right or proprietary right, or confidentiality right",
in regard to the evaluation. Therefore it cannot be said that the examining,
"body holds the evaluated answer books in a fiduciary relationship, qua the",
examiner.,
"27. We, therefore, hold that an examining body does not hold the",
evaluated answer-books in a fiduciary relationship. Not being information,
"available to an examining body in its fiduciary relationship, the exemption",
under section 8(1)(e) is not available to the examining bodies with reference,
to evaluated answer-books. As no other exemption under section 8 is,
40,
"available in respect of evaluated answer books, the examining bodies will",
have to permit inspection sought by the examinees.,
Re : Question (iv),
28. When an examining body engages the services of an examiner to,
"evaluate the answer-books, the examining body expects the examiner not to",
disclose the information regarding evaluation to anyone other than the,
examining body. Similarly the examiner also expects that his name and,
particulars would not be disclosed to the candidates whose answer-books are,
"evaluated by him. In the event of such information being made known, a",
disgruntled examinee who is not satisfied with the evaluation of the answer,
"books, may act to the prejudice of the examiner by attempting to endanger",
"his physical safety. Further, any apprehension on the part of the examiner",
"that there may be danger to his physical safety, if his identity becomes",
"known to the examinees, may come in the way of effective discharge of his",
"duties. The above applies not only to the examiner, but also to the",
"scrutiniser, co-ordinator, and head-examiner who deal with the answer book.",
The answer book usually contains not only the signature and code number of,
"the examiner, but also the signatures and code number of the scrutiniser/co-",
ordinator/head examiner. The information as to the names or particulars of,
the examiners/co-ordinators/scrutinisers/head examiners are therefore,
41,
"exempted from disclosure under section 8(1)(g) of RTI Act, on the ground",
"that if such information is disclosed, it may endanger their physical safety.",
"Therefore, if the examinees are to be given access to evaluated answer-",
"books either by permitting inspection or by granting certified copies, such",
access will have to be given only to that part of the answer-book which does,
not contain any information or signature of the examiners/co-,
"ordinators/scrutinisers/head examiners, exempted from disclosure under",
section 8(1)(g) of RTI Act. Those portions of the answer-books which,
contain information regarding the examiners/co-ordinators/scrutinisers/head,
examiners or which may disclose their identity with reference to signature or,
"initials, shall have to be removed, covered, or otherwise severed from the",
"non-exempted part of the answer-books, under section 10 of RTI Act.",
29. The right to access information does not extend beyond the period,
during which the examining body is expected to retain the answer-books. In,
"the case of CBSE, the answer-books are required to be maintained for a",
period of three months and thereafter they are liable to be disposed,
of/destroyed. Some other examining bodies are required to keep the answer-,
books for a period of six months. The fact that right to information is,
available in regard to answer-books does not mean that answer-books will,
have to be maintained for any longer period than required under the rules,
42,
and regulations of the public authority. The obligation under the RTI Act is,
to make available or give access to existing information or information,
which is expected to be preserved or maintained. If the rules and regulations,
governing the functioning of the respective public authority require,
"preservation of the information for only a limited period, the applicant for",
information will be entitled to such information only if he seeks the,
"information when it is available with the public authority. For example, with",
"reference to answer-books, if an examinee makes an application to CBSE for",
inspection or grant of certified copies beyond three months (or six months or,
such other period prescribed for preservation of the records in regard to,
"other examining bodies) from the date of declaration of results, the",
application could be rejected on the ground that such information is not,
available. The power of the Information Commission under section 19(8) of,
the RTI Act to require a public authority to take any such steps as may be,
"necessary to secure compliance with the provision of the Act, does not",
"include a power to direct the public authority to preserve the information, for",
any period larger than what is provided under the rules and regulations of the,
public authority.,
"30. On behalf of the respondents/examinees, it was contended that having",
"regard to sub-section (3) of section 8 of RTI Act, there is an implied duty on",
43,
the part of every public authority to maintain the information for a minimum,
period of twenty years and make it available whenever an application was,
made in that behalf. This contention is based on a complete misreading and,
misunderstanding of section 8(3). The said sub-section nowhere provides,
that records or information have to be maintained for a period of twenty,
years. The period for which any particular records or information has to be,
maintained would depend upon the relevant statutory rule or regulation of,
the public authority relating to the preservation of records. Section 8(3),
"provides that information relating to any occurrence, event or matters which",
has taken place and occurred or happened twenty years before the date on,
"which any request is made under section 6, shall be provided to any person",
making a request. This means that where any information required to be,
maintained and preserved for a period beyond twenty years under the rules,
"of the public authority, is exempted from disclosure under any of the",
"provisions of section 8(1) of RTI Act, then, notwithstanding such",
"exemption, access to such information shall have to be provided by",
"disclosure thereof, after a period of twenty years except where they relate to",
"information falling under clauses (a), (c) and (i) of section 8(1). In other",
"words, section 8(3) provides that any protection against disclosure that may",
"be available, under clauses (b), (d) to (h) and (j) of section 8(1) will cease to",
44,
be available after twenty years in regard to records which are required to be,
preserved for more than twenty years. Where any record or information is,
required to be destroyed under the rules and regulations of a public authority,
"prior to twenty years, section 8(3) will not prevent destruction in accordance",
with the Rules. Section 8(3) of RTI Act is not therefore a provision requiring,
"all ‘information’ to be preserved and maintained for twenty years or more,",
nor does it override any rules or regulations governing the period for which,
"the record, document or information is required to be preserved by any",
public authority.,
31. The effect of the provisions and scheme of the RTI Act is to divide,
‘information’ into the three categories. They are :,
(i) Information which promotes transparency and accountability in,
"the working of every public authority, disclosure of which may",
also help in containing or discouraging corruption (enumerated in,
clauses (b) and (c) of section 4(1) of RTI Act).,
(ii) Other information held by public authority (that is all information,
other than those falling under clauses (b) and (c) of section 4(1) of,
RTI Act).,
(iii) Information which is not held by or under the control of any,
public authority and which cannot be accessed by a public,
authority under any law for the time being in force.,
Information under the third category does not fall within the scope of RTI,
"Act. Section 3 of RTI Act gives every citizen, the right to ‘information’ held",
45,
"by or under the control of a public authority, which falls either under the first",
or second category. In regard to the information falling under the first,
"category, there is also a special responsibility upon public authorities to suo",
moto publish and disseminate such information so that they will be easily,
and readily accessible to the public without any need to access them by,
having recourse to section 6 of RTI Act. There is no such obligation to,
publish and disseminate the other information which falls under the second,
category.,
"32. The information falling under the first category, enumerated in",
sections 4(1)(b) & (c) of RTI Act are extracted below :,
“4. Obligations of public authorities.-(1) Every public authority shall--,
(a) xxxxxx,
(b) publish within one,
"hundred and twenty days from the enactment of this Act,--",
"(i) the particulars of its organisation, functions and duties;",
(ii) the powers and duties of its officers and employees;,
(iii) the procedure followed in the decision making,
"process, including channels of supervision and",
accountability;,
(iv) the norms set by it for the discharge of its functions;,
"(v) the rules, regulations, instructions, manuals and records,",
held by it or under its control or used by its employees for,
discharging its functions;,
(vi) a statement of the categories of documents that are held,
by it or under its control;,
46,
(vii) the particulars of any arrangement that exists for,
"consultation with, or representation by, the members of the",
public in relation to the formulation of its policy or,
implementation thereof;,
"(viii) a statement of the boards, councils, committees and",
other bodies consisting of two or more persons constituted,
"as its part or for the purpose of its advice, and as to whether",
"meetings of those boards, councils, committees and other",
"bodies are open to the public, or the minutes of such",
meetings are accessible for public;,
(ix) a directory of its officers and employees;,
(x) the monthly remuneration received by each of its,
"officers and employees, including the system of",
compensation as provided in its regulations;,
"(xi) the budget allocated to each of its agency, indicating",
"the particulars of all plans, proposed expenditures and",
reports on disbursements made;,
"(xii) the manner of execution of subsidy programmes,",
including the amounts allocated and the details of,
beneficiaries of such programmes;,
"(xiii) particulars of recipients of concessions, permits or",
authorisations granted by it;,
"(xiv) details in respect of the information, available to or",
"held by it, reduced in an electronic form;",
(xv) the particulars of facilities available to citizens for,
"obtaining information, including the working hours of a",
"library or reading room, if maintained for public use;",
"(xvi) the names, designations and other particulars of the",
Public Information Officers;,
(xvii) such other information as may be prescribed; and,
thereafter update these publications every year;,
(c) publish all relevant facts,
while formulating important policies or announcing the decisions,
which affect public;,
(emphasis supplied),
47,
"Sub-sections (2), (3) and (4) of section 4 relating to dissemination of",
information enumerated in sections 4(1)(b) & (c) are extracted below:,
“(2) It shall be a constant endeavour of every public,
authority to take steps in accordance with the requirements of clause (b) of,
sub-section (1) to provide as much information suo motu to the public,
"at regular intervals through various means of communications,",
"including internet, so that the public have minimum resort to the use",
of this Act to obtain information.,
"(3) For the purposes of sub-section (1), every",
information shall be disseminated widely and in such form and,
manner which is easily accessible to the public.,
(4) All materials shall be disseminated taking into,
"consideration the cost effectiveness, local language and the most effective",
method of communication in that local area and the information should be,
"easily accessible, to the extent possible in electronic format with the",
"Central Public Information Officer or State Public Information Officer, as",
"the case may be, available free or at such cost of the medium or the print",
cost price as may be prescribed.,
"Explanation.--For the purposes of sub-sections (3) and (4), ""disseminated""",
means making known or communicated the information to the public,
"through notice boards, newspapers, public announcements, media",
"broadcasts, the internet or any other means, including inspection of offices",
of any public authority.”,
(emphasis supplied),
33. Some High Courts have held that section 8 of RTI Act is in the nature,
of an exception to section 3 which empowers the citizens with the right to,
"information, which is a derivative from the freedom of speech; and that",
"therefore section 8 should be construed strictly, literally and narrowly. This",
may not be the correct approach. The Act seeks to bring about a balance,
"between two conflicting interests, as harmony between them is essential for",
preserving democracy. One is to bring about transparency and accountability,
by providing access to information under the control of public authorities.,
48,
"The other is to ensure that the revelation of information, in actual practice,",
does not conflict with other public interests which include efficient operation,
"of the governments, optimum use of limited fiscal resources and",
preservation of confidentiality of sensitive information. The preamble to the,
Act specifically states that the object of the Act is to harmonise these two,
conflicting interests. While sections 3 and 4 seek to achieve the first,
"objective, sections 8, 9, 10 and 11 seek to achieve the second objective.",
"Therefore when section 8 exempts certain information from being disclosed,",
"it should not be considered to be a fetter on the right to information, but as",
an equally important provision protecting other public interests essential for,
the fulfilment and preservation of democratic ideals.,
34. When trying to ensure that the right to information does not conflict,
with several other public interests (which includes efficient operations of the,
"governments, preservation of confidentiality of sensitive information,",
"optimum use of limited fiscal resources, etc.), it is difficult to visualise and",
enumerate all types of information which require to be exempted from,
disclosure in public interest. The legislature has however made an attempt to,
do so. The enumeration of exemptions is more exhaustive than the,
enumeration of exemptions attempted in the earlier Act that is section 8 of,
"Freedom to Information Act, 2002. The Courts and Information",
49,
Commissions enforcing the provisions of RTI Act have to adopt a purposive,
"construction, involving a reasonable and balanced approach which",
"harmonises the two objects of the Act, while interpreting section 8 and the",
other provisions of the Act.,
"35. At this juncture, it is necessary to clear some misconceptions about",
the RTI Act. The RTI Act provides access to all information that is,
available and existing. This is clear from a combined reading of section 3,
and the definitions of ‘information’ and ‘right to information’ under clauses,
(f) and (j) of section 2 of the Act. If a public authority has any information in,
"the form of data or analysed data, or abstracts, or statistics, an applicant may",
"access such information, subject to the exemptions in section 8 of the Act.",
But where the information sought is not a part of the record of a public,
"authority, and where such information is not required to be maintained under",
"any law or the rules or regulations of the public authority, the Act does not",
"cast an obligation upon the public authority, to collect or collate such non-",
available information and then furnish it to an applicant. A public authority,
is also not required to furnish information which require drawing of,
inferences and/or making of assumptions. It is also not required to provide,
"‘advice’ or ‘opinion’ to an applicant, nor required to obtain and furnish any",
‘opinion’ or ‘advice’ to an applicant. The reference to ‘opinion’ or ‘advice’,
50,
"in the definition of ‘information’ in section 2(f) of the Act, only refers to",
such material available in the records of the public authority. Many public,
"authorities have, as a public relation exercise, provide advice, guidance and",
opinion to the citizens. But that is purely voluntary and should not be,
confused with any obligation under the RTI Act.,
36. Section 19(8) of RTI Act has entrusted the Central/State Information,
"Commissions, with the power to require any public authority to take any",
such steps as may be necessary to secure the compliance with the provisions,
"of the Act. Apart from the generality of the said power, clause (a) of section",
"19(8) refers to six specific powers, to implement the provision of the Act.",
Sub-clause (i) empowers a Commission to require the public authority to,
provide access to information if so requested in a particular ‘form’ (that is,
"either as a document, micro film, compact disc, pendrive, etc.). This is to",
secure compliance with section 7(9) of the Act. Sub-clause (ii) empowers a,
Commission to require the public authority to appoint a Central Public,
Information Officer or State Public Information Officer. This is to secure,
compliance with section 5 of the Act. Sub-clause (iii) empowers the,
Commission to require a public authority to publish certain information or,
categories of information. This is to secure compliance with section 4(1) and,
(2) of RTI Act. Sub-clause (iv) empowers a Commission to require a public,
51,
authority to make necessary changes to its practices relating to the,
"maintenance, management and destruction of the records. This is to secure",
compliance with clause (a) of section 4(1) of the Act. Sub-clause (v),
empowers a Commission to require the public authority to increase the,
training for its officials on the right to information. This is to secure,
"compliance with sections 5, 6 and 7 of the Act. Sub-clause (vi) empowers a",
Commission to require the public authority to provide annual reports in,
regard to the compliance with clause (b) of section 4(1). This is to ensure,
compliance with the provisions of clause (b) of section 4(1) of the Act. The,
power under section 19(8) of the Act however does not extend to requiring a,
public authority to take any steps which are not required or contemplated to,
secure compliance with the provisions of the Act or to issue directions,
beyond the provisions of the Act. The power under section 19(8) of the Act,
is intended to be used by the Commissions to ensure compliance with the,
"Act, in particular ensure that every public authority maintains its records",
duly catalogued and indexed in the manner and in the form which facilitates,
"the right to information and ensure that the records are computerized, as",
required under clause (a) of section 4(1) of the Act; and to ensure that the,
information enumerated in clauses (b) and (c) of sections 4(1) of the Act are,
"published and disseminated, and are periodically updated as provided in sub-",
52,
sections (3) and (4) of section 4 of the Act. If the ‘information’ enumerated,
in clause (b) of section 4(1) of the Act are effectively disseminated (by,
"publications in print and on websites and other effective means), apart from",
"providing transparency and accountability, citizens will be able to access",
relevant information and avoid unnecessary applications for information,
under the Act.,
37. The right to information is a cherished right. Information and right to,
information are intended to be formidable tools in the hands of responsible,
citizens to fight corruption and to bring in transparency and accountability.,
The provisions of RTI Act should be enforced strictly and all efforts should,
be made to bring to light the necessary information under clause (b) of,
section 4(1) of the Act which relates to securing transparency and,
accountability in the working of public authorities and in discouraging,
"corruption. But in regard to other information,(that is information other than",
"those enumerated in section 4(1)(b) and (c) of the Act), equal importance",
and emphasis are given to other public interests (like confidentiality of,
"sensitive information, fidelity and fiduciary relationships, efficient operation",
"of governments, etc.). Indiscriminate and impractical demands or directions",
under RTI Act for disclosure of all and sundry information (unrelated to,
transparency and accountability in the functioning of public authorities and,
53,
eradication of corruption) would be counter-productive as it will adversely,
affect the efficiency of the administration and result in the executive getting,
bogged down with the non-productive work of collecting and furnishing,
"information. The Act should not be allowed to be misused or abused, to",
"become a tool to obstruct the national development and integration, or to",
"destroy the peace, tranquility and harmony among its citizens. Nor should it",
be converted into a tool of oppression or intimidation of honest officials,
striving to do their duty. The nation does not want a scenario where 75% of,
the staff of public authorities spends 75% of their time in collecting and,
furnishing information to applicants instead of discharging their regular,
duties. The threat of penalties under the RTI Act and the pressure of the,
authorities under the RTI Act should not lead to employees of a public,
"authorities prioritising ‘information furnishing’, at the cost of their normal",
and regular duties.,
Conclusion,
"38. In view of the foregoing, the order of the High Court directing the",
examining bodies to permit examinees to have inspection of their answer,
"books is affirmed, subject to the clarifications regarding the scope of the RTI",
54,
Act and the safeguards and conditions subject to which ‘information’ should,
be furnished. The appeals are disposed of accordingly.,
……………………….J,
[R. V. Raveendran],
……………………….J,
[A. K. Patnaik],
New Delhi;,
"August 9, 2011.",
REPORTABLE,
IN THE SUPREME COURT OF INDIA,
CIVIL APPELLATE JURISDICTION,
CIVIL APPEAL NO. 9052 OF 2012,
(Arising out of SLP (C) No.20217 of 2011),
Bihar Public Service Commission ...,
Appellant,
Versus,
Saiyed Hussain Abbas Rizwi & Anr. ...,
Respondents,
J U D G M E N T,
"Swatanter Kumar, J.",
1. Leave granted.,
"2. The Bihar Public Service Commission (for short, ‘the",
Commission) published advertisement No.6 of 2000 dated 10th,
"May, 2000 in the local papers of the State of Bihar declaring its",
intention to fill up the posts of ‘State Examiner of Questioned,
"Documents’, in Police Laboratory in Crime Investigation",
"Department, Government of Bihar, Patna. The advertisement,",
Page 1,
"inter alia, stated that written examination would be held if",
adequate number of applications were received. As very,
"limited number of applications were received, the Commission,",
"in terms of the advertisement, decided against the holding of",
written examination. It exercised the option to select the,
candidates for appointment to the said post on the basis of viva,
voce test alone. The Commission completed the process of,
selection and recommended the panel of selected candidates,
to the State of Bihar.,
"3. One Saiyed Hussain Abbas Rizwi, respondent No.1 herein,",
"claiming to be a public spirited citizen, filed an application",
before the Commission (appellant herein) under the Right to,
"Information Act, 2005 (for short “the Act”) on 16th December,",
2008 seeking information in relation to eight queries. These,
queries concerned the interview which was held on 30th,
"September, 2002 and 1st October, 2002 by the Commission",
"with regard to the above advertisement. These queries, inter",
"alia, related to providing the names, designation and addresses",
"of the subject experts present in the Interview Board, names",
"and addresses of the candidates who appeared, the interview",
statement with certified photocopies of the marks of all the,
2,
Page 2,
"candidates, criteria for selection of the candidates, tabulated",
statement containing average marks allotted to the candidates,
from matriculation to M.Sc. during the selection process with,
the signatures of the members/officers and certified copy of the,
merit list. This application remained pending with the Public,
Information Officer of the Commission for a considerable time,
that led to filing of an appeal by respondent No.1 before the,
State Information Commission. When the appeal came up for,
"hearing, the State Information Commission vide its order dated",
"30th April, 2009 had directed the Public Information Officer-cum-",
Officer on Special Duty of the Commission that the information,
sought for be made available and the case was fixed for 27th,
"August, 2009 when the following order was passed :",
“The applicant is present. A letter dated,
12.08.2009 of the Public Information,
"Officer, Bihar Public Service Commission,",
Patna has been received whereby the,
required paragraph-wise information which,
"could be supplied, has been given to the",
applicant. Since the information which,
could be supplied has been given to the,
"applicant, the proceedings of the case are",
closed.”,
"4. At this stage, we may also notice that the Commission,",
"vide its letter dated 12th August, 2009, had furnished the",
3,
Page 3,
information nearly to all the queries of respondent No.1. It also,
stated that no written test had been conducted and that the,
"name, designation and addresses of the members of the",
Interview Board could not be furnished as they were not,
required to be supplied in accordance with the provisions of,
Section 8(1)(g) of the Act.,
5. Aggrieved from the said order of the Information,
"Commission dated 27th August, 2009, respondent No.1",
challenged the same by filing a writ before the High Court of,
Judicature at Patna. The matter came up for hearing before a,
"learned Judge of that Court, who, vide judgment dated 27th",
"November, 2009 made the following observations and",
dismissed the writ petition :,
“If information with regard to them is,
"disclosed, the secrecy and the authenticity",
of the process itself may be jeopardized,
apart from that information would be an,
unwarranted invasion into privacy of the,
individual. Restricting giving this,
information has a larger public purpose,
behind it. It is to maintain purity of the,
"process of selection. Thus, in view of",
"specific provision in Section 8(1)(j), in my",
"view, the information could not be",
demanded as matter of right. The,
designated authority in that organization,
also did not consider it right to divulge the,
4,
Page 4,
"information in larger public interest, as",
provided in the said provision.”,
"6. Feeling aggrieved, respondent No.1 challenged the",
judgment of the learned Single Judge before the Division Bench,
of that Court by filing a letters patent appeal being LPA No.102,
"of 2010. The Division Bench, amongst others, noticed the",
following contentions :,
(i) that third party interest was involved in providing the,
"information asked for and, therefore, could properly be",
denied in terms of Section 2(n) read with Sections 8(1)(j),
and 11 of the Act.,
(ii) that respondent No.1 (the applicant) was a mere,
busybody and not a candidate himself and was attempting,
to meddle with the affairs of the Commission needlessly.,
7. The Division Bench took the view that the provisions of,
Section 8(1)(j) were not attracted in the facts of the case in,
hand inasmuch as this provision had application in respect of,
law enforcement agency and for security purposes. Since no,
such consideration arose with respect to the affairs of the,
"Commission and its function was in public domain, reliance on",
5,
Page 5,
the said provision for denying the information sought for was,
"not tenable in law. Thus, the Court in its order dated 20th",
"January, 2011 accepted the appeal, set aside the order of the",
learned Single Judge and directed the Commission to,
communicate the information sought for to respondent No.1.,
The Court directed the Commission to provide the names of the,
"members of the Interview Board, while denying the disclosure",
of and providing photocopies of the papers containing the,
signatures and addresses of the members of the Interview,
Board.,
8. The Commission challenging the legality and correctness,
of the said judgment has filed the present appeal by way of,
special leave.,
9. The question that arises for consideration in the present,
case is as to whether the Commission was duty bound to,
disclose the names of the members of the Interview Board to,
"any person including the examinee. Further, when the",
Commission could take up the plea of exemption from,
disclosure of information as contemplated under Section 8 of,
the Act in this regard.,
6,
Page 6,
"10. Firstly, we must examine the purpose and scheme of this",
"Act. For this purpose, suffice would it be to refer to the",
judgment of this Court in the case of Namit Sharma v. Union of,
"India [2012 (8) SCALE 593], wherein this Court has held as",
under :,
“27. In terms of the Statement of Objects,
"and Reasons of the Act of 2002, it was",
stated that this law was enacted in order to,
make the government more transparent,
and accountable to the public. It was felt,
"that in the present democratic framework,",
free flow of information for citizens and,
non-Government institutions suffers from,
several bottlenecks including the existing,
"legal framework, lack of infrastructure at",
the grass root level and an attitude of,
secrecy within the Civil Services as a result,
of the old framework of rules. The Act was,
to deal with all such aspects. The purpose,
and object was to make the government,
more transparent and accountable to the,
public and to provide freedom to every,
citizen to secure access to information,
"under the control of public authorities,",
"consistent with public interest, in order to",
"promote openness, transparency and",
accountability in administration and in,
relation to matters connected therewith or,
incidental thereto.”,
11. The scheme of the Act contemplates for setting out the,
practical regime of right to information for citizens to secure,
"access to information under the control of public authorities, in",
7,
Page 7,
order to promote transparency and accountability in the,
working of every public authority. It was aimed at providing,
free access to information with the object of making,
governance more transparent and accountable. Another right,
of a citizen protected under the Constitution is the right to,
privacy. This right is enshrined within the spirit of Article 21 of,
"the Constitution. Thus, the right to information has to be",
balanced with the right to privacy within the framework of law.,
12. Where Section 3 of the Act grants right to citizens to have,
"access to information, there Section 4 places an obligation upon",
the public authorities to maintain records and provide the,
prescribed information. Once an application seeking,
"information is made, the same has to be dealt with as per",
Sections 6 and 7 of the Act. The request for information is to be,
disposed of within the time postulated under the provisions of,
Section 7 of the Act. Section 8 is one of the most important,
provisions of the Act as it is an exception to the general rule of,
obligation to furnish information. It gives the category of cases,
where the public authority is exempted from providing the,
"information. To such exemptions, there are inbuilt exceptions",
"under some of the provisions, where despite exemption, the",
8,
Page 8,
Commission may call upon the authority to furnish the,
information in the larger public interest. This shows the wide,
scope of these provisions as intended by the framers of law. In,
"such cases, the Information Commission has to apply its mind",
whether it is a case of exemption within the provisions of the,
said section.,
13. Right to information is a basic and celebrated,
fundamental/basic right but is not uncontrolled. It has its,
"limitations. The right is subject to a dual check. Firstly, this",
right is subject to the restrictions inbuilt within the Act and,
secondly the constitutional limitations emerging from Article 21,
"of the Constitution. Thus, wherever in response to an",
"application for disclosure of information, the public authority",
"takes shelter under the provisions relating to exemption, non-",
"applicability or infringement of Article 21 of the Constitution,",
the State Information Commission has to apply its mind and,
form an opinion objectively if the exemption claimed for was,
sustainable on facts of the case.,
"14. Now, we have to examine whether the Commission is a",
public authority within the meaning of the Act. The expression,
‘public authority’ has been given an exhaustive definition under,
9,
Page 9,
section 2(h) of the Act as the Legislature has used the word,
"‘means’ which is an expression of wide connotation. Thus,",
‘public authority’ is defined as any authority or body or,
"institution of the Government, established or constituted by the",
Government which falls in any of the stated categories under,
"Section 2(h) of the Act. In terms of Section 2(h)(a), a body or",
an institution which is established or constituted by or under,
the Constitution would be a public authority. Public Service,
Commission is established under Article 315 of the Constitution,
of India and as such there cannot be any escape from the,
conclusion that the Commission shall be a public authority,
within the scope of this section.,
15. Section 2(f) again is exhaustive in nature. The Legislature,
has given meaning to the expression ‘information’ and has,
stated that it shall mean any material in any form including,
"papers, samples, data material held in electronic form, etc.",
Right to information under Section 2(j) means the ‘right to,
information’ accessible under this Act which is held by or under,
the control of any public authority and includes the right to,
"inspection of work, documents, records, taking notes, extracts,",
"taking certified sample of materials, obtaining information in",
10,
Page 10,
"the form of diskettes, floppies and video cassettes, etc. The",
right sought to be exercised and information asked for should,
fall within the scope of ‘information’ and ‘right to information’,
as defined under the Act.,
"16. Thus, what has to be seen is whether the information",
sought for in exercise of right to information is one that is,
permissible within the framework of law as prescribed under the,
Act. If the information called for falls in any of the categories,
specified under Section 8 or relates to the organizations to,
which the Act itself does not apply in terms of section 24 of the,
"Act, the public authority can take such stand before the",
commission and decline to furnish such information. Another,
aspect of exercise of this right is that where the information,
"asked for relates to third party information, the Commission is",
required to follow the procedure prescribed under Section 11 of,
the Act.,
"17. Before the High Court, reliance had been placed upon",
"Section 8(1)(j) and Section 11 of the Act. On facts, the",
controversy in the present case falls within a very narrow,
compass. Most of the details asked for by the applicant have,
already been furnished. The dispute between the parties,
11,
Page 11,
"related only to the first query of the applicant, that is, with",
regard to disclosure of the names and addresses of the,
members of the Interview Board.,
"18. On behalf of the Commission, reliance was placed upon",
Section 8(1)(j) and Section 11 of the Act to contend that,
disclosure of the names would endanger the life of the,
members of the interview board and such disclosure would also,
cause unwarranted invasion of the privacy of the interviewers.,
"Further, it was contended that this information related to third",
party interest. The expression ‘third party’ has been defined in,
Section 2(n) of the Act to mean a person other than the citizen,
making a request for information and includes a public,
"authority. For these reasons, they were entitled to the",
exemption contemplated under Section 8(1)(j) and were not,
liable to disclose the required information. It is also contended,
on behalf of the Commission that the Commission was entitled,
to exemption under Sections 8(1)(e) and 8(1)(g) read together.,
"19. On the contrary, the submission on behalf of the applicant",
was that it is an information which the applicant is entitled to,
receive. The Commission was not entitled to any exemption,
12,
Page 12,
"under any of the provisions of Section 8, and therefore, was",
obliged to disclose the said information to the applicant.,
"20. In the present case, we are not concerned with the",
correctness or otherwise of the method adopted for selection of,
"the candidates. Thus, the fact that no written examination was",
held and the selections were made purely on the basis of viva,
"voce, one of the options given in the advertisement itself, does",
not arise for our consideration. We have to deal only with the,
plea as to whether the information asked for by the applicant,
should be directed to be disclosed by the Commission or,
whether the Commission is entitled to the exemption under the,
stated provisions of Section 8 of the Act.,
21. Section 8 opens with the non obstante language and is an,
exception to the furnishing of information as is required under,
the relevant provisions of the Act. During the course of the,
"hearing, it was not pressed before us that the Commission is",
entitled to the exemption in terms of Section 8(1)(j) of the Act.,
"In view of this, we do not propose to discuss this issue any",
further nor would we deal with the correctness or otherwise of,
the impugned judgment of the High Court in that behalf.,
13,
Page 13,
22. Section 8(1)(e) provides an exemption from furnishing of,
"information, if the information available to a person is in his",
fiduciary relationship unless the competent authority is,
satisfied that larger public interest warrants the disclosure of,
"such information. In terms of Section 8(1)(g), the public",
authority is not obliged to furnish any such information the,
disclosure of which would endanger the life or physical safety of,
any person or identify the source of information or assistance,
given in confidence for law enforcement and security purposes.,
If the concerned public authority holds the information in,
"fiduciary relationship, then the obligation to furnish information",
is obliterated. But if the competent authority is still satisfied,
"that in the larger public interest, despite such objection, the",
"information should be furnished, it may so direct the public",
authority. The term ‘fiduciary’ refers to a person having a duty,
"to act for the benefit of another, showing good faith and",
"condour, where such other person reposes trust and special",
confidence in the person owing or discharging the duty. The,
term ‘fiduciary relationship’ is used to describe a situation or,
transaction where one person places complete confidence in,
"another person in regard to his affairs, business or transactions.",
14,
Page 14,
This aspect has been discussed in some detail in the judgment,
of this Court in the case of Central Board of Secondary,
"Education (supra). Section 8(1)(e), therefore, carves out a",
protection in favour of a person who possesses information in,
his fiduciary relationship. This protection can be negated by,
the competent authority where larger public interest warrants,
"the disclosure of such information, in which case, the authority",
is expected to record reasons for its satisfaction. Another very,
significant provision of the Act is 8(1)(j). In terms of this,
"provision, information which relates to personal information,",
the disclosure of which has no relationship to any public activity,
or interest or which would cause unwarranted invasion of the,
privacy of the individual would fall within the exempted,
"category, unless the authority concerned is satisfied that larger",
"public interest justifies the disclosure of such information. It is,",
"therefore, to be understood clearly that it is a statutory",
exemption which must operate as a rule and only in,
"exceptional cases would disclosure be permitted, that too, for",
reasons to be recorded demonstrating satisfaction to the test of,
larger public interest. It will not be in consonance with the,
"spirit of these provisions, if in a mechanical manner, directions",
15,
Page 15,
are passed by the appropriate authority to disclose information,
which may be protected in terms of the above provisions. All,
information which has come to the notice of or on record of a,
person holding fiduciary relationship with another and but for,
"such capacity, such information would not have been provided",
"to that authority, would normally need to be protected and",
would not be open to disclosure keeping the higher standards,
of integrity and confidentiality of such relationship. Such,
exemption would be available to such authority or department.,
23. The expression ‘public interest’ has to be understood in its,
true connotation so as to give complete meaning to the,
relevant provisions of the Act. The expression ‘public interest’,
must be viewed in its strict sense with all its exceptions so as to,
justify denial of a statutory exemption in terms of the Act. In its,
"common parlance, the expression ‘public interest’, like ‘public",
"purpose’, is not capable of any precise definition . It does not",
"have a rigid meaning, is elastic and takes its colour from the",
"statute in which it occurs, the concept varying with time and",
state of society and its needs. [State of Bihar v. Kameshwar,
Singh (AIR 1952 SC 252)]. It also means the general welfare of,
the public that warrants recommendation and protection;,
16,
Page 16,
something in which the public as a whole has a stake [Black’s,
Law Dictionary (Eighth Edition)].,
24. The satisfaction has to be arrived at by the authorities,
objectively and the consequences of such disclosure have to be,
weighed with regard to circumstances of a given case. The,
decision has to be based on objective satisfaction recorded for,
ensuring that larger public interest outweighs unwarranted,
invasion of privacy or other factors stated in the provision.,
"Certain matters, particularly in relation to appointment, are",
required to be dealt with great confidentiality. The information,
may come to knowledge of the authority as a result of,
disclosure by others who give that information in confidence,
"and with complete faith, integrity and fidelity. Secrecy of such",
"information shall be maintained, thus, bringing it within the",
"ambit of fiduciary capacity. Similarly, there may be cases",
where the disclosure has no relationship to any public activity,
or interest or it may even cause unwarranted invasion of,
privacy of the individual. All these protections have to be given,
their due implementation as they spring from statutory,
exemptions. It is not a decision simpliciter between private,
interest and public interest. It is a matter where a,
17,
Page 17,
constitutional protection is available to a person with regard to,
"the right to privacy. Thus, the public interest has to be",
construed while keeping in mind the balance factor between,
right to privacy and right to information with the purpose,
sought to be achieved and the purpose that would be served in,
"the larger public interest, particularly when both these rights",
emerge from the constitutional values under the Constitution of,
India.,
"25. First of all, the Court has to decide whether in the facts of",
"the present case, the Commission holds any fiduciary",
relationship with the examinee or the interviewers. Discussion,
on this question need not detain us any further as it stands fully,
answered by a judgment of this Court in the case of Central,
Board of Secondary Education & Anr. v. Aditya Bandopadhyay,
& Ors. [(2011) 8 SCC 497] wherein the Court held as under :,
“40. There are also certain relationships,
where both the parties have to act in a,
fiduciary capacity treating the other as the,
beneficiary. Examples of these are: a,
partner vis-à-vis another partner and an,
employer vis-à-vis employee. An employee,
who comes into possession of business or,
trade secrets or confidential information,
relating to the employer in the course of his,
"employment, is expected to act as a",
fiduciary and cannot disclose it to others.,
18,
Page 18,
"Similarly, if on the request of the employer",
or official superior or the head of a,
"department, an employee furnishes his",
"personal details and information, to be",
"retained in confidence, the employer, the",
official superior or departmental head is,
expected to hold such personal information,
"in confidence as a fiduciary, to be made",
use of or disclosed only if the employee’s,
conduct or acts are found to be prejudicial,
to the employer.,
"41. In a philosophical and very wide sense,",
examining bodies can be said to act in a,
"fiduciary capacity, with reference to the",
"students who participate in an examination,",
as a Government does while governing its,
citizens or as the present generation does,
with reference to the future generation,
while preserving the environment. But the,
words “information available to a person in,
his fiduciary relationship” are used in,
Section 8(1)(e) of the RTI Act in its normal,
"and well-recognised sense, that is, to refer",
"to persons who act in a fiduciary capacity,",
with reference to a specific beneficiary or,
beneficiaries who are to be expected to be,
protected or benefited by the actions of the,
fiduciary—a trustee with reference to the,
"beneficiary of the trust, a guardian with",
reference to a minor/physically infirm/,
"mentally challenged, a parent with",
"reference to a child, a lawyer or a chartered",
"accountant with reference to a client, a",
"doctor or nurse with reference to a patient,",
"an agent with reference to a principal, a",
"partner with reference to another partner, a",
Director of a company with reference to a,
"shareholder, an executor with reference to",
"a legatee, a Receiver with reference to the",
"parties to a lis, an employer with reference",
to the confidential information relating to,
"the employee, and an employee with",
19,
Page 19,
reference to business dealings/transaction,
of the employer. We do not find that kind of,
fiduciary relationship between the,
"examining body and the examinee, with",
"reference to the evaluated answer books,",
that come into the custody of the,
examining body.,
42. The duty of examining bodies is to,
subject the candidates who have completed,
a course of study or a period of training in,
"accordance with its curricula, to a process",
of verification/examination/testing of their,
"knowledge, ability or skill, or to ascertain",
whether they can be said to have,
successfully completed or passed the,
course of study or training. Other,
specialised examining bodies may simply,
subject the candidates to a process of,
"verification by an examination, to find out",
whether such person is suitable for a,
"particular post, job or assignment. An",
"examining body, if it is a public authority",
"entrusted with public functions, is required",
"to act fairly, reasonably, uniformly and",
consistently for public good and in public,
interest.,
43. This Court has explained the role of an,
examining body in regard to the process of,
holding examination in the context of,
examining whether it amounts to “service”,
"to a consumer, in Bihar School Examination",
Board v. Suresh Prasad Sinha in the,
"following manner: (SCC p. 487, paras 11-",
13),
“11. … The process of holding,
"examinations, evaluating answer",
"scripts, declaring results and issuing",
certificates are different stages of a,
single statutory non-commercial,
function. It is not possible to divide,
20,
Page 20,
this function as partly statutory and,
partly administrative.,
12. When the Examination Board,
conducts an examination in discharge,
"of its statutory function, it does not",
offer its ‘services’ to any candidate.,
Nor does a student who participates in,
the examination conducted by the,
"Board, hire or avail of any service from",
the Board for a consideration. On the,
"other hand, a candidate who",
participates in the examination,
"conducted by the Board, is a person",
who has undergone a course of study,
and who requests the Board to test,
him as to whether he has imbibed,
sufficient knowledge to be fit to be,
declared as having successfully,
completed the said course of,
"education; and if so, determine his",
position or rank or competence vis-à-,
vis other examinees. The process is,
"not, therefore, availment of a service",
"by a student, but participation in a",
general examination conducted by the,
Board to ascertain whether he is,
eligible and fit to be considered as,
having successfully completed the,
secondary education course. The,
examination fee paid by the student is,
not the consideration for availment of,
"any service, but the charge paid for",
the privilege of participation in the,
examination.,
13. … The fact that in the course,
"of conduct of the examination, or",
"evaluation of answer scripts, or",
furnishing of marksheets or,
"certificates, there may be some",
"negligence, omission or deficiency,",
does not convert the Board into a,
21,
Page 21,
"service provider for a consideration,",
nor convert the examinee into a,
consumer….”,
It cannot therefore be said that the,
examining body is in a fiduciary,
relationship either with reference to the,
examinee who participates in the,
examination and whose answer books are,
evaluated by the examining body.,
XXX XXX XXX,
49. The examining body entrusts the,
answer books to an examiner for evaluation,
and pays the examiner for his expert,
service. The work of evaluation and,
marking the answer book is an assignment,
given by the examining body to the,
examiner which he discharges for a,
"consideration. Sometimes, an examiner",
"may assess answer books, in the course of",
"his employment, as a part of his duties",
without any specific or special,
"remuneration. In other words, the",
examining body is the “principal” and the,
examiner is the “agent” entrusted with the,
"work, that is, the evaluation of answer",
"books. Therefore, the examining body is not",
in the position of a fiduciary with reference,
to the examiner.”,
(emphasis supplied),
"26. We, with respect, would follow the above reasoning of the",
"Bench and, thus, would have no hesitation in holding that in the",
"present case, the examining body (the Commission), is in no",
fiduciary relationship with the examinee (interviewers) or the,
candidate interviewed. Once the fiduciary relationship is not,
22,
Page 22,
"established, the obvious consequence is that the Commission",
cannot claim exemption as contemplated under Section 8(1)(e),
of the Act. The question of directing disclosure for a larger,
"public interest, therefore, would not arise at all.",
"27. In CBSE case (supra), this Court had clearly stated the",
view that an examiner who examines the answer sheets holds,
the relationship of principal and agent with the examining body.,
"Applying the same principle, it has to be held that the",
interviewers hold the position of an ‘agent’ vis-a-vis the,
examining body which is the ‘principal’. This relationship per se,
is not relatable to any of the exemption clauses but there are,
"some clauses of exemption, the foundation of which is not a",
particular relationship like fiduciary relationship. Clause 8(1)(g),
can come into play with any kind of relationship. It requires,
that where the disclosure of information would endanger the life,
or physical safety of any person or identify the source of,
information or assistance given in confidence for law,
"enforcement or security purposes, the information need not be",
provided. The High Court has rejected the application of,
Section 8(1)(g) on the ground that it applies only with regard to,
law enforcement or security purposes and does not have,
23,
Page 23,
general application. This reasoning of the High Court is,
contrary to the very language of Section 8(1)(g). Section 8(1),
(g) has various clauses in itself.,
"28. Now, let us examine the provisions of Section 8(1)(g) with",
greater emphasis on the expressions that are relevant to the,
present case. This section concerns with the cases where no,
obligation is cast upon the public authority to furnish,
"information, the disclosure of which would endanger (a) the life",
"(b) physical safety of any person. The legislature, in its wisdom,",
has used two distinct expressions. They cannot be read or,
construed as being synonymous. Every expression used by the,
"Legislature must be given its intended meaning and, in fact, a",
purposeful interpretation. The expression ‘life’ has to be,
construed liberally. ‘Physical safety’ is a restricted term while,
life is a term of wide connotation. ‘Life’ includes reputation of,
an individual as well as the right to live with freedom. The,
expression ‘ life’ also appears in Article 21 of the Constitution,
and has been provided a wide meaning so as to inter alia,
"include within its ambit the right to live with dignity, right to",
"shelter, right to basic needs and even the right to reputation.",
"The expression life under section 8(1(g) the Act, thus, has to be",
24,
Page 24,
understood in somewhat similar dimensions. The term,
‘endanger’ or ‘endangerment’ means the act or an instance of,
putting someone or something in danger; exposure to peril or,
such situation which would hurt the concept of life as,
understood in its wider sense [refer Black’s Law Dictionary,
"(Eighth Edition)]. Of course, physical safety would mean the",
likelihood of assault to physical existence of a person. If in the,
opinion of the concerned authority there is danger to life or,
"possibility of danger to physical safety, the State Information",
Commission would be entitled to bring such case within the,
exemption of Section 8(1)(g) of the Act. The disclosure of,
information which would endanger the life or physical safety of,
any person is one category and identification of the source of,
information or assistance given in confidence for law,
enforcement or security purposes is another category. The,
expression ‘for law enforcement or security purposes’ is to be,
read ejusdem generis only to the expression ‘assistance given,
in confidence’ and not to any other clause of the section. On,
"the plain reading of Section 8(1)(g), it becomes clear that the",
said clause is complete in itself. It cannot be said to have any,
reference to the expression ‘assistance given in confidence for,
25,
Page 25,
law enforcement or security purposes’. Neither the language of,
the Section nor the object of the Section requires such,
interpretation. It would not further the cause of this section.,
Section 8 attempts to provide exemptions and once the,
language of the Section is unambiguous and squarely deals,
"with every situation, there is no occasion for the Court to",
frustrate the very object of the Section. It will amount to,
misconstruing the provisions of the Act. The High Court though,
"has referred to Section 8(1)(j) but has, in fact, dealt with the",
"language of Section 8(1)(g). The reasoning of the High Court,",
"therefore, is neither clear in reference to provision of the",
Section nor in terms of the language thereof.,
"29. Now, the ancillary question that arises is as to the",
consequences that the interviewers or the members of the,
interview board would be exposed to in the event their names,
and addresses or individual marks given by them are directed,
"to be disclosed. Firstly, the members of the Board are likely to",
be exposed to danger to their lives or physical safety.,
"Secondly, it will hamper effective performance and discharge of",
their duties as examiners. This is the information available with,
the examining body in confidence with the interviewers.,
26,
Page 26,
Declaration of collective marks to the candidate is one thing,
"and that, in fact, has been permitted by the authorities as well",
as the High Court. We see no error of jurisdiction or reasoning,
in this regard. But direction to furnish the names and,
addresses of the interviewers would certainly be opposed to the,
very spirit of Section 8(1)(g) of the Act. CBSE case (supra) has,
"given sufficient reasoning in this regard and at this stage, we",
may refer to paragraphs 52 and 53 of the said judgment which,
read as under :,
“52. When an examining body engages the,
services of an examiner to evaluate the,
"answer books, the examining body expects",
the examiner not to disclose the,
information regarding evaluation to anyone,
other than the examining body. Similarly,
the examiner also expects that his name,
and particulars would not be disclosed to,
the candidates whose answer books are,
evaluated by him. In the event of such,
"information being made known, a",
disgruntled examinee who is not satisfied,
"with the evaluation of the answer books,",
may act to the prejudice of the examiner by,
attempting to endanger his physical safety.,
"Further, any apprehension on the part of",
the examiner that there may be danger to,
"his physical safety, if his identity becomes",
"known to the examinees, may come in the",
way of effective discharge of his duties. The,
"above applies not only to the examiner, but",
"also to the scrutiniser, co-ordinator and",
27,
Page 27,
head examiner who deal with the answer,
book.,
53. The answer book usually contains not,
only the signature and code number of the,
"examiner, but also the signatures and code",
number of the scrutiniser/co-ordinator/head,
examiner. The information as to the names,
or particulars of the examiners/co-,
ordinators/scrutinisers/head examiners are,
therefore exempted from disclosure under,
"Section 8(1)(g) of the RTI Act, on the",
"ground that if such information is disclosed,",
it may endanger their physical safety.,
"Therefore, if the examinees are to be given",
access to evaluated answer books either by,
permitting inspection or by granting,
"certified copies, such access will have to be",
given only to that part of the answer book,
which does not contain any information or,
signature of the examiners/co-,
"ordinators/scrutinisers/head examiners,",
exempted from disclosure under Section,
8(1)(g) of the RTI Act. Those portions of the,
answer books which contain information,
regarding the examiners/co-,
ordinators/scrutinisers/head examiners or,
which may disclose their identity with,
"reference to signature or initials, shall have",
"to be removed, covered, or otherwise",
severed from the non-exempted part of the,
"answer books, under Section 10 of the RTI",
Act.”,
30. The above reasoning of the Bench squarely applies to the,
present case as well. The disclosure of names and addresses of,
the members of the Interview Board would ex facie endanger,
their lives or physical safety. The possibility of a failed,
28,
Page 28,
candidate attempting to take revenge from such persons,
"cannot be ruled out. On the one hand, it is likely to expose the",
"members of the Interview Board to harm and, on the other,",
such disclosure would serve no fruitful much less any public,
"purpose. Furthermore, the view of the High Court in the",
judgment under appeal that element of bias can be traced and,
would be crystallized only if the names and addresses of the,
examiners/interviewers are furnished is without any substance.,
The element of bias can hardly be co-related with the disclosure,
of the names and addresses of the interviewers. Bias is not a,
ground which can be considered for or against a party making,
an application to which exemption under Section 8 is pleaded,
as a defence. We are unable to accept this reasoning of the,
High Court. Suffice it to note that the reasoning of the High,
Court is not in conformity with the principles stated by this,
Court in the CBSE case (supra). The transparency that is,
expected to be maintained in such process would not take,
within its ambit the disclosure of the information called for,
under query No.1 of the application. Transparency in such,
cases is relatable to the process where selection is based on,
collective wisdom and collective marking. Marks are required,
29,
Page 29,
to be disclosed but disclosure of individual names would hardly,
hold relevancy either to the concept of transparency or for,
proper exercise of the right to information within the limitation,
of the Act.,
"31. For the reasons afore-stated, we accept the present",
"appeal, set aside the judgment of the High Court and hold that",
the Commission is not bound to disclose the information asked,
for by the applicant under Query No.1 of the application.,
………...….………….......................J.,
(Swatanter Kumar),
…..…………...................................J.,
(Sudhansu Jyoti,
Mukhopadhaya),
"New Delhi,",
"December 13, 2012",
30,
Page 30,
1,
REPORTABLE,
IN THE SUPREME COURT OF INDIA,
CIVIL APPELLATE JURISDICTION,
Specia l Leave Petition (Civil) No. 27734 of 2012,
(@ CC 14781/2012),
Girish Ramchandra Deshpande .. Petitioner,
Versus,
Cen. Information Commr. & Ors. .. Respondents,
O R D E R,
1. Delay condoned.,
"2. We are, in this case, concerned with the question whether",
the Central Information Commissioner (for short ‘the CIC’) acting,
"under the Right to Information Act, 2005 (for short ‘the RTI Act’)",
Page 1,
2,
was right in denying information regarding the third respondent’s,
personal matters pertaining to his service career and also denying,
"the details of his assets and liabilities, movable and immovable",
properties on the ground that the information sought for was,
qualified to be personal information as defined in clause (j) of,
Section 8(1) of the RTI Act.,
3. The petitioner herein had submitted an application on,
27.8.2008 before the Regional Provident Fund Commissioner,
"(Ministry of Labour, Government of India) calling for various",
"details relating to third respondent, who was employed as an",
"Enforcement Officer in Sub-Regional Office, Akola, now working in",
the State of Madhya Pradesh. As many as 15 queries were made,
"to which the Regional Provident Fund Commissioner, Nagpur gave",
the following reply on 15.9.2008:,
”As to Point No.1: Copy of appointment order of Shri,
"A.B. Lute, is in 3 pages. You have",
sought the details of salary in,
"respect of Shri A.B. Lute, which",
Page 2,
3,
relates to personal information the,
disclosures of which has no,
relationship to any public activity,
"or interest, it would cause",
unwarranted invasion of the,
privacy of individual hence denied,
as per the RTI provision under,
Section 8(1)(j) of the Act.,
As to Point No.2: Copy of order of granting,
Enforcement Officer Promotion to,
"Shri A.B. Lute, is in 3 Number.",
Details of salary to the post along,
with statutory and other,
deductions of Mr. Lute is denied to,
provide as per RTI provisions,
under Section 8(1)(j) for the,
reasons mentioned above.,
As to Point NO.3: All the transfer orders of Shri A.B.,
"Lute, are in 13 Numbers. Salary",
details is rejected as per the,
provision under Section 8(1)(j) for,
the reason mentioned above.,
"As to Point No.4: The copies of memo, show cause",
"notice, censure issued to Mr. Lute,",
are not being provided on the,
ground that it would cause,
unwarranted invasion of the,
privacy of the individual and has no,
relationship to any public activity,
or interest. Please see RTI,
provision under Section 8(1)(j).,
Page 3,
4,
As to Point No.5: Copy of EPF (Staff & Conditions),
Rules 1962 is in 60 pages.,
As to Point No.6: Copy of return of assets and,
liabilities in respect of Mr. Lute,
cannot be provided as per the,
provision of RTI Act under Section,
8(1)(j) as per the reason explained,
above at point No.1.,
As to Point No.7: Details of investment and other,
related details are rejected as per,
the provision of RTI Act under,
Section 8(1)(j) as per the reason,
explained above at point No.1.,
As to Point No.8: Copy of report of item wise and,
value wise details of gifts accepted,
"by Mr. Lute, is rejected as per the",
provisions of RTI Act under Section,
8(1)(j) as per the reason explained,
above at point No.1.,
"As to Point No.9: Copy of details of movable,",
"immovable properties of Mr. Lute,",
the request to provide the same is,
rejected as per the RTI Provisions,
under Section 8(1)(j).,
As to Point No.10: Mr. Lute is not claiming for TA/DA,
for attending the criminal case,
"pending at JMFC, Akola.",
As to Point No.11: Copy of Notification is in 2,
numbers.,
Page 4,
5,
As to Point No.12: Copy of certified true copy of,
charge sheet issued to Mr. Lute –,
The matter pertains with head,
"Office, Mumbai. Your application is",
"being forwarded to Head Office,",
Mumbai as per Section 6(3) of the,
"RTI Act, 2005.",
As to Point No.13: Certified True copy of complete,
enquiry proceedings initiated,
against Mr. Lute – It would cause,
unwarranted invasion of privacy of,
individuals and has no relationship,
to any public activity or interest.,
Please see RTI provisions under,
Section 8(1)(j).,
As to Point No.14: It would cause unwarranted,
invasion of privacy of individuals,
and has no relationship to any,
"public activity or interest, hence",
denied to provide.,
As to Point No.15: Certified true copy of second show,
cause notice – It would cause,
unwarranted invasion of privacy of,
individuals and has no relationship,
"to any public activity or interest,",
hence denied to provide.”,
Page 5,
6,
"4. Aggrieved by the said order, the petitioner approached the",
"CIC. The CIC passed the order on 18.6.2009, the operative",
portion of the order reads as under:,
“The question for consideration is whether the aforesaid,
information sought by the Appellant can be treated as,
‘personal information’ as defined in clause (j) of Section,
8(1) of the RTI Act. It may be pertinent to mention,
that this issue came up before the Full Bench of the,
Commission in Appeal No.CIC/AT/A/2008/000628,
(Milap Choraria v. Central Board of Direct Taxes),
and the Commission vide its decision dated 15.6.2009,
held that “the Income Tax return have been rightly,
held to be personal information exempted from,
disclosure under clause (j) of Section 8(1) of the RTI,
"Act by the CPIO and the Appellate Authority, and the",
appellant herein has not been able to establish that a,
larger public interest would be served by disclosure of,
this information. This logic would hold good as far as,
the ITRs of Shri Lute are concerned. I would like to,
further observe that the information which has been,
denied to the appellant essentially falls in two parts –,
(i) relating to the personal matters pertaining to his,
"services career; and (ii) Shri Lute’s assets & liabilities,",
movable and immovable properties and other financial,
aspects. I have no hesitation in holding that this,
information also qualifies to be the ‘personal,
information’ as defined in clause (j) of Section 8(1) of,
the RTI Act and the appellant has not been able to,
convince the Commission that disclosure thereof is in,
larger public interest.”,
Page 6,
7,
"5. The CIC, after holding so directed the second respondent to",
"disclose the information at paragraphs 1, 2, 3 (only posting",
"details), 5, 10, 11, 12,13 (only copies of the posting orders) to",
the appellant within a period of four weeks from the date of the,
"order. Further, it was held that the information sought for with",
regard to the other queries did not qualify for disclosure.,
"6. Aggrieved by the said order, the petitioner filed a writ",
petition No.4221 of 2009 which came up for hearing before a,
learned Single Judge and the court dismissed the same vide order,
dated 16.2.2010. The matter was taken up by way of Letters,
Patent Appeal No.358 of 2011 before the Division Bench and the,
same was dismissed vide order dated 21.12.2011. Against the,
said order this special leave petition has been filed.,
"7. Shri A.P. Wachasunder, learned counsel appearing for the",
petitioner submitted that the documents sought for vide Sl.,
"Nos.1, 2 and 3 were pertaining to appointment and promotion",
Page 7,
8,
and Sl. No.4 and 12 to 15 were related to disciplinary action and,
documents at Sl. Nos.6 to 9 pertained to assets and liabilities and,
gifts received by the third respondent and the disclosure of those,
"details, according to the learned counsel, would not cause",
unwarranted invasion of privacy.,
8. Learned counsel also submitted that the privacy appended,
to Section 8(1)(j) of the RTI Act widens the scope of documents,
warranting disclosure and if those provisions are properly,
"interpreted, it could not be said that documents pertaining to",
employment of a person holding the post of enforcement officer,
could be treated as documents having no relationship to any,
public activity or interest.,
9. Learned counsel also pointed out that in view of Section 6(2),
"of the RTI Act, the applicant making request for information is not",
obliged to give any reason for the requisition and the CIC was not,
justified in dismissing his appeal.,
Page 8,
9,
10. This Court in Central Board of Secondary Education and,
another v. Aditya Bandopadhyay and others (2011) 8 SCC,
497 while dealing with the right of examinees to inspect,
evaluated answer books in connection with the examination,
conducted by the CBSE Board had an occasion to consider in,
detail the aims and object of the RTI Act as well as the reasons,
"for the introduction of the exemption clause in the RTI Act,",
"hence, it is unnecessary, for the purpose of this case to further",
examine the meaning and contents of Section 8 as a whole.,
"11. We are, however, in this case primarily concerned with the",
"scope and interpretation to clauses (e), (g) and (j) of Section",
8(1) of the RTI Act which are extracted herein below:,
“8. Exemption from disclosure of information.- (1),
"Notwithstanding anything contained in this Act, there",
"shall be no obligation to give any citizen,-",
(e) information available to a person in his fiduciary,
"relationship, unless the competent authority is satisfied",
that the larger public interest warrants the disclosure,
of such information;,
Page 9,
10,
"(g) information, the disclosure of which would",
endanger the life or physical safety of any person or,
identify the source of information or assistance given in,
confidence for law enforcement or security purposes;,
(j) information which relates to personal information,
the disclosure of which has no relationship to any public,
"activity or interest, or which would cause unwarranted",
invasion of the privacy of the individual unless the,
Central Public Information Officer or the State Public,
"Information Officer or the appellate authority, as the",
"case may be, is satisfied that the larger public interest",
justifies the disclosure of such information.”,
"12. The petitioner herein sought for copies of all memos, show",
cause notices and censure/punishment awarded to the third,
respondent from his employer and also details viz. movable and,
"immovable properties and also the details of his investments,",
lending and borrowing from Banks and other financial institutions.,
"Further, he has also sought for the details of gifts stated to have",
"accepted by the third respondent, his family members and friends",
and relatives at the marriage of his son. The information mostly,
sought for finds a place in the income tax returns of the third,
respondent. The question that has come up for consideration is,
Page 10,
11,
whether the above-mentioned information sought for qualifies to,
be “personal information” as defined in clause (j) of Section 8(1),
of the RTI Act.,
13. We are in agreement with the CIC and the courts below that,
the details called for by the petitioner i.e. copies of all memos,
"issued to the third respondent, show cause notices and orders of",
censure/punishment etc. are qualified to be personal information,
as defined in clause (j) of Section 8(1) of the RTI Act. The,
performance of an employee/officer in an organization is primarily,
a matter between the employee and the employer and normally,
those aspects are governed by the service rules which fall under,
"the expression “personal information”, the disclosure of which has",
no relationship to any public activity or public interest. On the,
"other hand, the disclosure of which would cause unwarranted",
"invasion of privacy of that individual. Of course, in a given case,",
if the Central Public Information Officer or the State Public,
Information Officer of the Appellate Authority is satisfied that the,
Page 11,
12,
"larger public interest justifies the disclosure of such information,",
appropriate orders could be passed but the petitioner cannot,
claim those details as a matter of right.,
14. The details disclosed by a person in his income tax returns,
are “personal information” which stand exempted from disclosure,
"under clause (j) of Section 8(1) of the RTI Act, unless involves a",
larger public interest and the Central Public Information Officer or,
the State Public Information Officer or the Appellate Authority is,
satisfied that the larger public interest justifies the disclosure of,
such information.,
15. The petitioner in the instant case has not made a bona fide,
"public interest in seeking information, the disclosure of such",
information would cause unwarranted invasion of privacy of the,
individual under Section 8(1)(j) of the RTI Act.,
"16. We are, therefore, of the view that the petitioner has not",
succeeded in establishing that the information sought for is for,
Page 12,
13,
"the larger public interest. That being the fact, we are not inclined",
"to entertain this special leave petition. Hence, the same is",
dismissed.,
……………….……………………..J.,
(K. S. RADHAKRISHNAN),
………………………………….…..J.,
(DIPAK MISRA),
New Delhi,
"October 3, 2012",
Page 13,
REPORTABLE,
IN THE SUPREME COURT OF INDIA,
CIVIL APPELLATE JURISDICTION,
CIVIL APPEAL NO. 9052 OF 2012,
(Arising out of SLP (C) No.20217 of 2011),
Bihar Public Service Commission ...,
Appellant,
Versus,
Saiyed Hussain Abbas Rizwi & Anr. ...,
Respondents,
J U D G M E N T,
"Swatanter Kumar, J.",
1. Leave granted.,
"2. The Bihar Public Service Commission (for short, ‘the",
Commission) published advertisement No.6 of 2000 dated 10th,
"May, 2000 in the local papers of the State of Bihar declaring its",
intention to fill up the posts of ‘State Examiner of Questioned,
"Documents’, in Police Laboratory in Crime Investigation",
"Department, Government of Bihar, Patna. The advertisement,",
Page 1,
"inter alia, stated that written examination would be held if",
adequate number of applications were received. As very,
"limited number of applications were received, the Commission,",
"in terms of the advertisement, decided against the holding of",
written examination. It exercised the option to select the,
candidates for appointment to the said post on the basis of viva,
voce test alone. The Commission completed the process of,
selection and recommended the panel of selected candidates,
to the State of Bihar.,
"3. One Saiyed Hussain Abbas Rizwi, respondent No.1 herein,",
"claiming to be a public spirited citizen, filed an application",
before the Commission (appellant herein) under the Right to,
"Information Act, 2005 (for short “the Act”) on 16th December,",
2008 seeking information in relation to eight queries. These,
queries concerned the interview which was held on 30th,
"September, 2002 and 1st October, 2002 by the Commission",
"with regard to the above advertisement. These queries, inter",
"alia, related to providing the names, designation and addresses",
"of the subject experts present in the Interview Board, names",
"and addresses of the candidates who appeared, the interview",
statement with certified photocopies of the marks of all the,
2,
Page 2,
"candidates, criteria for selection of the candidates, tabulated",
statement containing average marks allotted to the candidates,
from matriculation to M.Sc. during the selection process with,
the signatures of the members/officers and certified copy of the,
merit list. This application remained pending with the Public,
Information Officer of the Commission for a considerable time,
that led to filing of an appeal by respondent No.1 before the,
State Information Commission. When the appeal came up for,
"hearing, the State Information Commission vide its order dated",
"30th April, 2009 had directed the Public Information Officer-cum-",
Officer on Special Duty of the Commission that the information,
sought for be made available and the case was fixed for 27th,
"August, 2009 when the following order was passed :",
“The applicant is present. A letter dated,
12.08.2009 of the Public Information,
"Officer, Bihar Public Service Commission,",
Patna has been received whereby the,
required paragraph-wise information which,
"could be supplied, has been given to the",
applicant. Since the information which,
could be supplied has been given to the,
"applicant, the proceedings of the case are",
closed.”,
"4. At this stage, we may also notice that the Commission,",
"vide its letter dated 12th August, 2009, had furnished the",
3,
Page 3,
information nearly to all the queries of respondent No.1. It also,
stated that no written test had been conducted and that the,
"name, designation and addresses of the members of the",
Interview Board could not be furnished as they were not,
required to be supplied in accordance with the provisions of,
Section 8(1)(g) of the Act.,
5. Aggrieved from the said order of the Information,
"Commission dated 27th August, 2009, respondent No.1",
challenged the same by filing a writ before the High Court of,
Judicature at Patna. The matter came up for hearing before a,
"learned Judge of that Court, who, vide judgment dated 27th",
"November, 2009 made the following observations and",
dismissed the writ petition :,
“If information with regard to them is,
"disclosed, the secrecy and the authenticity",
of the process itself may be jeopardized,
apart from that information would be an,
unwarranted invasion into privacy of the,
individual. Restricting giving this,
information has a larger public purpose,
behind it. It is to maintain purity of the,
"process of selection. Thus, in view of",
"specific provision in Section 8(1)(j), in my",
"view, the information could not be",
demanded as matter of right. The,
designated authority in that organization,
also did not consider it right to divulge the,
4,
Page 4,
"information in larger public interest, as",
provided in the said provision.”,
"6. Feeling aggrieved, respondent No.1 challenged the",
judgment of the learned Single Judge before the Division Bench,
of that Court by filing a letters patent appeal being LPA No.102,
"of 2010. The Division Bench, amongst others, noticed the",
following contentions :,
(i) that third party interest was involved in providing the,
"information asked for and, therefore, could properly be",
denied in terms of Section 2(n) read with Sections 8(1)(j),
and 11 of the Act.,
(ii) that respondent No.1 (the applicant) was a mere,
busybody and not a candidate himself and was attempting,
to meddle with the affairs of the Commission needlessly.,
7. The Division Bench took the view that the provisions of,
Section 8(1)(j) were not attracted in the facts of the case in,
hand inasmuch as this provision had application in respect of,
law enforcement agency and for security purposes. Since no,
such consideration arose with respect to the affairs of the,
"Commission and its function was in public domain, reliance on",
5,
Page 5,
the said provision for denying the information sought for was,
"not tenable in law. Thus, the Court in its order dated 20th",
"January, 2011 accepted the appeal, set aside the order of the",
learned Single Judge and directed the Commission to,
communicate the information sought for to respondent No.1.,
The Court directed the Commission to provide the names of the,
"members of the Interview Board, while denying the disclosure",
of and providing photocopies of the papers containing the,
signatures and addresses of the members of the Interview,
Board.,
8. The Commission challenging the legality and correctness,
of the said judgment has filed the present appeal by way of,
special leave.,
9. The question that arises for consideration in the present,
case is as to whether the Commission was duty bound to,
disclose the names of the members of the Interview Board to,
"any person including the examinee. Further, when the",
Commission could take up the plea of exemption from,
disclosure of information as contemplated under Section 8 of,
the Act in this regard.,
6,
Page 6,
"10. Firstly, we must examine the purpose and scheme of this",
"Act. For this purpose, suffice would it be to refer to the",
judgment of this Court in the case of Namit Sharma v. Union of,
"India [2012 (8) SCALE 593], wherein this Court has held as",
under :,
“27. In terms of the Statement of Objects,
"and Reasons of the Act of 2002, it was",
stated that this law was enacted in order to,
make the government more transparent,
and accountable to the public. It was felt,
"that in the present democratic framework,",
free flow of information for citizens and,
non-Government institutions suffers from,
several bottlenecks including the existing,
"legal framework, lack of infrastructure at",
the grass root level and an attitude of,
secrecy within the Civil Services as a result,
of the old framework of rules. The Act was,
to deal with all such aspects. The purpose,
and object was to make the government,
more transparent and accountable to the,
public and to provide freedom to every,
citizen to secure access to information,
"under the control of public authorities,",
"consistent with public interest, in order to",
"promote openness, transparency and",
accountability in administration and in,
relation to matters connected therewith or,
incidental thereto.”,
11. The scheme of the Act contemplates for setting out the,
practical regime of right to information for citizens to secure,
"access to information under the control of public authorities, in",
7,
Page 7,
order to promote transparency and accountability in the,
working of every public authority. It was aimed at providing,
free access to information with the object of making,
governance more transparent and accountable. Another right,
of a citizen protected under the Constitution is the right to,
privacy. This right is enshrined within the spirit of Article 21 of,
"the Constitution. Thus, the right to information has to be",
balanced with the right to privacy within the framework of law.,
12. Where Section 3 of the Act grants right to citizens to have,
"access to information, there Section 4 places an obligation upon",
the public authorities to maintain records and provide the,
prescribed information. Once an application seeking,
"information is made, the same has to be dealt with as per",
Sections 6 and 7 of the Act. The request for information is to be,
disposed of within the time postulated under the provisions of,
Section 7 of the Act. Section 8 is one of the most important,
provisions of the Act as it is an exception to the general rule of,
obligation to furnish information. It gives the category of cases,
where the public authority is exempted from providing the,
"information. To such exemptions, there are inbuilt exceptions",
"under some of the provisions, where despite exemption, the",
8,
Page 8,
Commission may call upon the authority to furnish the,
information in the larger public interest. This shows the wide,
scope of these provisions as intended by the framers of law. In,
"such cases, the Information Commission has to apply its mind",
whether it is a case of exemption within the provisions of the,
said section.,
13. Right to information is a basic and celebrated,
fundamental/basic right but is not uncontrolled. It has its,
"limitations. The right is subject to a dual check. Firstly, this",
right is subject to the restrictions inbuilt within the Act and,
secondly the constitutional limitations emerging from Article 21,
"of the Constitution. Thus, wherever in response to an",
"application for disclosure of information, the public authority",
"takes shelter under the provisions relating to exemption, non-",
"applicability or infringement of Article 21 of the Constitution,",
the State Information Commission has to apply its mind and,
form an opinion objectively if the exemption claimed for was,
sustainable on facts of the case.,
"14. Now, we have to examine whether the Commission is a",
public authority within the meaning of the Act. The expression,
‘public authority’ has been given an exhaustive definition under,
9,
Page 9,
section 2(h) of the Act as the Legislature has used the word,
"‘means’ which is an expression of wide connotation. Thus,",
‘public authority’ is defined as any authority or body or,
"institution of the Government, established or constituted by the",
Government which falls in any of the stated categories under,
"Section 2(h) of the Act. In terms of Section 2(h)(a), a body or",
an institution which is established or constituted by or under,
the Constitution would be a public authority. Public Service,
Commission is established under Article 315 of the Constitution,
of India and as such there cannot be any escape from the,
conclusion that the Commission shall be a public authority,
within the scope of this section.,
15. Section 2(f) again is exhaustive in nature. The Legislature,
has given meaning to the expression ‘information’ and has,
stated that it shall mean any material in any form including,
"papers, samples, data material held in electronic form, etc.",
Right to information under Section 2(j) means the ‘right to,
information’ accessible under this Act which is held by or under,
the control of any public authority and includes the right to,
"inspection of work, documents, records, taking notes, extracts,",
"taking certified sample of materials, obtaining information in",
10,
Page 10,
"the form of diskettes, floppies and video cassettes, etc. The",
right sought to be exercised and information asked for should,
fall within the scope of ‘information’ and ‘right to information’,
as defined under the Act.,
"16. Thus, what has to be seen is whether the information",
sought for in exercise of right to information is one that is,
permissible within the framework of law as prescribed under the,
Act. If the information called for falls in any of the categories,
specified under Section 8 or relates to the organizations to,
which the Act itself does not apply in terms of section 24 of the,
"Act, the public authority can take such stand before the",
commission and decline to furnish such information. Another,
aspect of exercise of this right is that where the information,
"asked for relates to third party information, the Commission is",
required to follow the procedure prescribed under Section 11 of,
the Act.,
"17. Before the High Court, reliance had been placed upon",
"Section 8(1)(j) and Section 11 of the Act. On facts, the",
controversy in the present case falls within a very narrow,
compass. Most of the details asked for by the applicant have,
already been furnished. The dispute between the parties,
11,
Page 11,
"related only to the first query of the applicant, that is, with",
regard to disclosure of the names and addresses of the,
members of the Interview Board.,
"18. On behalf of the Commission, reliance was placed upon",
Section 8(1)(j) and Section 11 of the Act to contend that,
disclosure of the names would endanger the life of the,
members of the interview board and such disclosure would also,
cause unwarranted invasion of the privacy of the interviewers.,
"Further, it was contended that this information related to third",
party interest. The expression ‘third party’ has been defined in,
Section 2(n) of the Act to mean a person other than the citizen,
making a request for information and includes a public,
"authority. For these reasons, they were entitled to the",
exemption contemplated under Section 8(1)(j) and were not,
liable to disclose the required information. It is also contended,
on behalf of the Commission that the Commission was entitled,
to exemption under Sections 8(1)(e) and 8(1)(g) read together.,
"19. On the contrary, the submission on behalf of the applicant",
was that it is an information which the applicant is entitled to,
receive. The Commission was not entitled to any exemption,
12,
Page 12,
"under any of the provisions of Section 8, and therefore, was",
obliged to disclose the said information to the applicant.,
"20. In the present case, we are not concerned with the",
correctness or otherwise of the method adopted for selection of,
"the candidates. Thus, the fact that no written examination was",
held and the selections were made purely on the basis of viva,
"voce, one of the options given in the advertisement itself, does",
not arise for our consideration. We have to deal only with the,
plea as to whether the information asked for by the applicant,
should be directed to be disclosed by the Commission or,
whether the Commission is entitled to the exemption under the,
stated provisions of Section 8 of the Act.,
21. Section 8 opens with the non obstante language and is an,
exception to the furnishing of information as is required under,
the relevant provisions of the Act. During the course of the,
"hearing, it was not pressed before us that the Commission is",
entitled to the exemption in terms of Section 8(1)(j) of the Act.,
"In view of this, we do not propose to discuss this issue any",
further nor would we deal with the correctness or otherwise of,
the impugned judgment of the High Court in that behalf.,
13,
Page 13,
22. Section 8(1)(e) provides an exemption from furnishing of,
"information, if the information available to a person is in his",
fiduciary relationship unless the competent authority is,
satisfied that larger public interest warrants the disclosure of,
"such information. In terms of Section 8(1)(g), the public",
authority is not obliged to furnish any such information the,
disclosure of which would endanger the life or physical safety of,
any person or identify the source of information or assistance,
given in confidence for law enforcement and security purposes.,
If the concerned public authority holds the information in,
"fiduciary relationship, then the obligation to furnish information",
is obliterated. But if the competent authority is still satisfied,
"that in the larger public interest, despite such objection, the",
"information should be furnished, it may so direct the public",
authority. The term ‘fiduciary’ refers to a person having a duty,
"to act for the benefit of another, showing good faith and",
"condour, where such other person reposes trust and special",
confidence in the person owing or discharging the duty. The,
term ‘fiduciary relationship’ is used to describe a situation or,
transaction where one person places complete confidence in,
"another person in regard to his affairs, business or transactions.",
14,
Page 14,
This aspect has been discussed in some detail in the judgment,
of this Court in the case of Central Board of Secondary,
"Education (supra). Section 8(1)(e), therefore, carves out a",
protection in favour of a person who possesses information in,
his fiduciary relationship. This protection can be negated by,
the competent authority where larger public interest warrants,
"the disclosure of such information, in which case, the authority",
is expected to record reasons for its satisfaction. Another very,
significant provision of the Act is 8(1)(j). In terms of this,
"provision, information which relates to personal information,",
the disclosure of which has no relationship to any public activity,
or interest or which would cause unwarranted invasion of the,
privacy of the individual would fall within the exempted,
"category, unless the authority concerned is satisfied that larger",
"public interest justifies the disclosure of such information. It is,",
"therefore, to be understood clearly that it is a statutory",
exemption which must operate as a rule and only in,
"exceptional cases would disclosure be permitted, that too, for",
reasons to be recorded demonstrating satisfaction to the test of,
larger public interest. It will not be in consonance with the,
"spirit of these provisions, if in a mechanical manner, directions",
15,
Page 15,
are passed by the appropriate authority to disclose information,
which may be protected in terms of the above provisions. All,
information which has come to the notice of or on record of a,
person holding fiduciary relationship with another and but for,
"such capacity, such information would not have been provided",
"to that authority, would normally need to be protected and",
would not be open to disclosure keeping the higher standards,
of integrity and confidentiality of such relationship. Such,
exemption would be available to such authority or department.,
23. The expression ‘public interest’ has to be understood in its,
true connotation so as to give complete meaning to the,
relevant provisions of the Act. The expression ‘public interest’,
must be viewed in its strict sense with all its exceptions so as to,
justify denial of a statutory exemption in terms of the Act. In its,
"common parlance, the expression ‘public interest’, like ‘public",
"purpose’, is not capable of any precise definition . It does not",
"have a rigid meaning, is elastic and takes its colour from the",
"statute in which it occurs, the concept varying with time and",
state of society and its needs. [State of Bihar v. Kameshwar,
Singh (AIR 1952 SC 252)]. It also means the general welfare of,
the public that warrants recommendation and protection;,
16,
Page 16,
something in which the public as a whole has a stake [Black’s,
Law Dictionary (Eighth Edition)].,
24. The satisfaction has to be arrived at by the authorities,
objectively and the consequences of such disclosure have to be,
weighed with regard to circumstances of a given case. The,
decision has to be based on objective satisfaction recorded for,
ensuring that larger public interest outweighs unwarranted,
invasion of privacy or other factors stated in the provision.,
"Certain matters, particularly in relation to appointment, are",
required to be dealt with great confidentiality. The information,
may come to knowledge of the authority as a result of,
disclosure by others who give that information in confidence,
"and with complete faith, integrity and fidelity. Secrecy of such",
"information shall be maintained, thus, bringing it within the",
"ambit of fiduciary capacity. Similarly, there may be cases",
where the disclosure has no relationship to any public activity,
or interest or it may even cause unwarranted invasion of,
privacy of the individual. All these protections have to be given,
their due implementation as they spring from statutory,
exemptions. It is not a decision simpliciter between private,
interest and public interest. It is a matter where a,
17,
Page 17,
constitutional protection is available to a person with regard to,
"the right to privacy. Thus, the public interest has to be",
construed while keeping in mind the balance factor between,
right to privacy and right to information with the purpose,
sought to be achieved and the purpose that would be served in,
"the larger public interest, particularly when both these rights",
emerge from the constitutional values under the Constitution of,
India.,
"25. First of all, the Court has to decide whether in the facts of",
"the present case, the Commission holds any fiduciary",
relationship with the examinee or the interviewers. Discussion,
on this question need not detain us any further as it stands fully,
answered by a judgment of this Court in the case of Central,
Board of Secondary Education & Anr. v. Aditya Bandopadhyay,
& Ors. [(2011) 8 SCC 497] wherein the Court held as under :,
“40. There are also certain relationships,
where both the parties have to act in a,
fiduciary capacity treating the other as the,
beneficiary. Examples of these are: a,
partner vis-à-vis another partner and an,
employer vis-à-vis employee. An employee,
who comes into possession of business or,
trade secrets or confidential information,
relating to the employer in the course of his,
"employment, is expected to act as a",
fiduciary and cannot disclose it to others.,
18,
Page 18,
"Similarly, if on the request of the employer",
or official superior or the head of a,
"department, an employee furnishes his",
"personal details and information, to be",
"retained in confidence, the employer, the",
official superior or departmental head is,
expected to hold such personal information,
"in confidence as a fiduciary, to be made",
use of or disclosed only if the employee’s,
conduct or acts are found to be prejudicial,
to the employer.,
"41. In a philosophical and very wide sense,",
examining bodies can be said to act in a,
"fiduciary capacity, with reference to the",
"students who participate in an examination,",
as a Government does while governing its,
citizens or as the present generation does,
with reference to the future generation,
while preserving the environment. But the,
words “information available to a person in,
his fiduciary relationship” are used in,
Section 8(1)(e) of the RTI Act in its normal,
"and well-recognised sense, that is, to refer",
"to persons who act in a fiduciary capacity,",
with reference to a specific beneficiary or,
beneficiaries who are to be expected to be,
protected or benefited by the actions of the,
fiduciary—a trustee with reference to the,
"beneficiary of the trust, a guardian with",
reference to a minor/physically infirm/,
"mentally challenged, a parent with",
"reference to a child, a lawyer or a chartered",
"accountant with reference to a client, a",
"doctor or nurse with reference to a patient,",
"an agent with reference to a principal, a",
"partner with reference to another partner, a",
Director of a company with reference to a,
"shareholder, an executor with reference to",
"a legatee, a Receiver with reference to the",
"parties to a lis, an employer with reference",
to the confidential information relating to,
"the employee, and an employee with",
19,
Page 19,
reference to business dealings/transaction,
of the employer. We do not find that kind of,
fiduciary relationship between the,
"examining body and the examinee, with",
"reference to the evaluated answer books,",
that come into the custody of the,
examining body.,
42. The duty of examining bodies is to,
subject the candidates who have completed,
a course of study or a period of training in,
"accordance with its curricula, to a process",
of verification/examination/testing of their,
"knowledge, ability or skill, or to ascertain",
whether they can be said to have,
successfully completed or passed the,
course of study or training. Other,
specialised examining bodies may simply,
subject the candidates to a process of,
"verification by an examination, to find out",
whether such person is suitable for a,
"particular post, job or assignment. An",
"examining body, if it is a public authority",
"entrusted with public functions, is required",
"to act fairly, reasonably, uniformly and",
consistently for public good and in public,
interest.,
43. This Court has explained the role of an,
examining body in regard to the process of,
holding examination in the context of,
examining whether it amounts to “service”,
"to a consumer, in Bihar School Examination",
Board v. Suresh Prasad Sinha in the,
"following manner: (SCC p. 487, paras 11-",
13),
“11. … The process of holding,
"examinations, evaluating answer",
"scripts, declaring results and issuing",
certificates are different stages of a,
single statutory non-commercial,
function. It is not possible to divide,
20,
Page 20,
this function as partly statutory and,
partly administrative.,
12. When the Examination Board,
conducts an examination in discharge,
"of its statutory function, it does not",
offer its ‘services’ to any candidate.,
Nor does a student who participates in,
the examination conducted by the,
"Board, hire or avail of any service from",
the Board for a consideration. On the,
"other hand, a candidate who",
participates in the examination,
"conducted by the Board, is a person",
who has undergone a course of study,
and who requests the Board to test,
him as to whether he has imbibed,
sufficient knowledge to be fit to be,
declared as having successfully,
completed the said course of,
"education; and if so, determine his",
position or rank or competence vis-à-,
vis other examinees. The process is,
"not, therefore, availment of a service",
"by a student, but participation in a",
general examination conducted by the,
Board to ascertain whether he is,
eligible and fit to be considered as,
having successfully completed the,
secondary education course. The,
examination fee paid by the student is,
not the consideration for availment of,
"any service, but the charge paid for",
the privilege of participation in the,
examination.,
13. … The fact that in the course,
"of conduct of the examination, or",
"evaluation of answer scripts, or",
furnishing of marksheets or,
"certificates, there may be some",
"negligence, omission or deficiency,",
does not convert the Board into a,
21,
Page 21,
"service provider for a consideration,",
nor convert the examinee into a,
consumer….”,
It cannot therefore be said that the,
examining body is in a fiduciary,
relationship either with reference to the,
examinee who participates in the,
examination and whose answer books are,
evaluated by the examining body.,
XXX XXX XXX,
49. The examining body entrusts the,
answer books to an examiner for evaluation,
and pays the examiner for his expert,
service. The work of evaluation and,
marking the answer book is an assignment,
given by the examining body to the,
examiner which he discharges for a,
"consideration. Sometimes, an examiner",
"may assess answer books, in the course of",
"his employment, as a part of his duties",
without any specific or special,
"remuneration. In other words, the",
examining body is the “principal” and the,
examiner is the “agent” entrusted with the,
"work, that is, the evaluation of answer",
"books. Therefore, the examining body is not",
in the position of a fiduciary with reference,
to the examiner.”,
(emphasis supplied),
"26. We, with respect, would follow the above reasoning of the",
"Bench and, thus, would have no hesitation in holding that in the",
"present case, the examining body (the Commission), is in no",
fiduciary relationship with the examinee (interviewers) or the,
candidate interviewed. Once the fiduciary relationship is not,
22,
Page 22,
"established, the obvious consequence is that the Commission",
cannot claim exemption as contemplated under Section 8(1)(e),
of the Act. The question of directing disclosure for a larger,
"public interest, therefore, would not arise at all.",
"27. In CBSE case (supra), this Court had clearly stated the",
view that an examiner who examines the answer sheets holds,
the relationship of principal and agent with the examining body.,
"Applying the same principle, it has to be held that the",
interviewers hold the position of an ‘agent’ vis-a-vis the,
examining body which is the ‘principal’. This relationship per se,
is not relatable to any of the exemption clauses but there are,
"some clauses of exemption, the foundation of which is not a",
particular relationship like fiduciary relationship. Clause 8(1)(g),
can come into play with any kind of relationship. It requires,
that where the disclosure of information would endanger the life,
or physical safety of any person or identify the source of,
information or assistance given in confidence for law,
"enforcement or security purposes, the information need not be",
provided. The High Court has rejected the application of,
Section 8(1)(g) on the ground that it applies only with regard to,
law enforcement or security purposes and does not have,
23,
Page 23,
general application. This reasoning of the High Court is,
contrary to the very language of Section 8(1)(g). Section 8(1),
(g) has various clauses in itself.,
"28. Now, let us examine the provisions of Section 8(1)(g) with",
greater emphasis on the expressions that are relevant to the,
present case. This section concerns with the cases where no,
obligation is cast upon the public authority to furnish,
"information, the disclosure of which would endanger (a) the life",
"(b) physical safety of any person. The legislature, in its wisdom,",
has used two distinct expressions. They cannot be read or,
construed as being synonymous. Every expression used by the,
"Legislature must be given its intended meaning and, in fact, a",
purposeful interpretation. The expression ‘life’ has to be,
construed liberally. ‘Physical safety’ is a restricted term while,
life is a term of wide connotation. ‘Life’ includes reputation of,
an individual as well as the right to live with freedom. The,
expression ‘ life’ also appears in Article 21 of the Constitution,
and has been provided a wide meaning so as to inter alia,
"include within its ambit the right to live with dignity, right to",
"shelter, right to basic needs and even the right to reputation.",
"The expression life under section 8(1(g) the Act, thus, has to be",
24,
Page 24,
understood in somewhat similar dimensions. The term,
‘endanger’ or ‘endangerment’ means the act or an instance of,
putting someone or something in danger; exposure to peril or,
such situation which would hurt the concept of life as,
understood in its wider sense [refer Black’s Law Dictionary,
"(Eighth Edition)]. Of course, physical safety would mean the",
likelihood of assault to physical existence of a person. If in the,
opinion of the concerned authority there is danger to life or,
"possibility of danger to physical safety, the State Information",
Commission would be entitled to bring such case within the,
exemption of Section 8(1)(g) of the Act. The disclosure of,
information which would endanger the life or physical safety of,
any person is one category and identification of the source of,
information or assistance given in confidence for law,
enforcement or security purposes is another category. The,
expression ‘for law enforcement or security purposes’ is to be,
read ejusdem generis only to the expression ‘assistance given,
in confidence’ and not to any other clause of the section. On,
"the plain reading of Section 8(1)(g), it becomes clear that the",
said clause is complete in itself. It cannot be said to have any,
reference to the expression ‘assistance given in confidence for,
25,
Page 25,
law enforcement or security purposes’. Neither the language of,
the Section nor the object of the Section requires such,
interpretation. It would not further the cause of this section.,
Section 8 attempts to provide exemptions and once the,
language of the Section is unambiguous and squarely deals,
"with every situation, there is no occasion for the Court to",
frustrate the very object of the Section. It will amount to,
misconstruing the provisions of the Act. The High Court though,
"has referred to Section 8(1)(j) but has, in fact, dealt with the",
"language of Section 8(1)(g). The reasoning of the High Court,",
"therefore, is neither clear in reference to provision of the",
Section nor in terms of the language thereof.,
"29. Now, the ancillary question that arises is as to the",
consequences that the interviewers or the members of the,
interview board would be exposed to in the event their names,
and addresses or individual marks given by them are directed,
"to be disclosed. Firstly, the members of the Board are likely to",
be exposed to danger to their lives or physical safety.,
"Secondly, it will hamper effective performance and discharge of",
their duties as examiners. This is the information available with,
the examining body in confidence with the interviewers.,
26,
Page 26,
Declaration of collective marks to the candidate is one thing,
"and that, in fact, has been permitted by the authorities as well",
as the High Court. We see no error of jurisdiction or reasoning,
in this regard. But direction to furnish the names and,
addresses of the interviewers would certainly be opposed to the,
very spirit of Section 8(1)(g) of the Act. CBSE case (supra) has,
"given sufficient reasoning in this regard and at this stage, we",
may refer to paragraphs 52 and 53 of the said judgment which,
read as under :,
“52. When an examining body engages the,
services of an examiner to evaluate the,
"answer books, the examining body expects",
the examiner not to disclose the,
information regarding evaluation to anyone,
other than the examining body. Similarly,
the examiner also expects that his name,
and particulars would not be disclosed to,
the candidates whose answer books are,
evaluated by him. In the event of such,
"information being made known, a",
disgruntled examinee who is not satisfied,
"with the evaluation of the answer books,",
may act to the prejudice of the examiner by,
attempting to endanger his physical safety.,
"Further, any apprehension on the part of",
the examiner that there may be danger to,
"his physical safety, if his identity becomes",
"known to the examinees, may come in the",
way of effective discharge of his duties. The,
"above applies not only to the examiner, but",
"also to the scrutiniser, co-ordinator and",
27,
Page 27,
head examiner who deal with the answer,
book.,
53. The answer book usually contains not,
only the signature and code number of the,
"examiner, but also the signatures and code",
number of the scrutiniser/co-ordinator/head,
examiner. The information as to the names,
or particulars of the examiners/co-,
ordinators/scrutinisers/head examiners are,
therefore exempted from disclosure under,
"Section 8(1)(g) of the RTI Act, on the",
"ground that if such information is disclosed,",
it may endanger their physical safety.,
"Therefore, if the examinees are to be given",
access to evaluated answer books either by,
permitting inspection or by granting,
"certified copies, such access will have to be",
given only to that part of the answer book,
which does not contain any information or,
signature of the examiners/co-,
"ordinators/scrutinisers/head examiners,",
exempted from disclosure under Section,
8(1)(g) of the RTI Act. Those portions of the,
answer books which contain information,
regarding the examiners/co-,
ordinators/scrutinisers/head examiners or,
which may disclose their identity with,
"reference to signature or initials, shall have",
"to be removed, covered, or otherwise",
severed from the non-exempted part of the,
"answer books, under Section 10 of the RTI",
Act.”,
30. The above reasoning of the Bench squarely applies to the,
present case as well. The disclosure of names and addresses of,
the members of the Interview Board would ex facie endanger,
their lives or physical safety. The possibility of a failed,
28,
Page 28,
candidate attempting to take revenge from such persons,
"cannot be ruled out. On the one hand, it is likely to expose the",
"members of the Interview Board to harm and, on the other,",
such disclosure would serve no fruitful much less any public,
"purpose. Furthermore, the view of the High Court in the",
judgment under appeal that element of bias can be traced and,
would be crystallized only if the names and addresses of the,
examiners/interviewers are furnished is without any substance.,
The element of bias can hardly be co-related with the disclosure,
of the names and addresses of the interviewers. Bias is not a,
ground which can be considered for or against a party making,
an application to which exemption under Section 8 is pleaded,
as a defence. We are unable to accept this reasoning of the,
High Court. Suffice it to note that the reasoning of the High,
Court is not in conformity with the principles stated by this,
Court in the CBSE case (supra). The transparency that is,
expected to be maintained in such process would not take,
within its ambit the disclosure of the information called for,
under query No.1 of the application. Transparency in such,
cases is relatable to the process where selection is based on,
collective wisdom and collective marking. Marks are required,
29,
Page 29,
to be disclosed but disclosure of individual names would hardly,
hold relevancy either to the concept of transparency or for,
proper exercise of the right to information within the limitation,
of the Act.,
"31. For the reasons afore-stated, we accept the present",
"appeal, set aside the judgment of the High Court and hold that",
the Commission is not bound to disclose the information asked,
for by the applicant under Query No.1 of the application.,
………...….………….......................J.,
(Swatanter Kumar),
…..…………...................................J.,
(Sudhansu Jyoti,
Mukhopadhaya),
"New Delhi,",
"December 13, 2012",
30,
Page 30,
REPORTABLE,
IN THE SUPREME COURT OF INDIA,
CIVIL APPELLATE JURISDICTION,
CIVIL APPEAL NO. OF 2013,
(arising out of SLP(C)No.22609 of 2012),
R.K. JAIN …. APPELLANT,
VERSUS,
UNION OF INDIA & ANR. ` ….RESPONDENTS,
J UD G M E N T,
"SUDHANSU JYOTI MUKHOPADHAYA, J.",
Leave granted.,
"2. In this appeal, the appellant challenges the final",
"judgment and order dated 20th April, 2012 passed by the",
Delhi High Court in L.P.A. No. 22/2012. In the said,
"order, the Division Bench dismissed the appeal against",
the order of the learned Single Judge dated 8th,
"December, 2011, wherein the Single Judge held that “the",
information sought by the appellant herein is the third,
party information wherein third party may plead a,
privacy defence and the proper question would be as to,
whether divulging of such an information is in the,
"public interest or not.” Thus, the matter has been",
remitted back to Chief Information Commissioner to,
1,
Page 1,
consider the issue after following the procedure under,
Section 11 of the Right to Information Act.,
3. The factual matrix of the case is as follows:,
The appellant filed an application to Central,
Public Information Officer (hereinafter referred to as,
the ‘CPIO’) under Section 6 of the Right to Information,
"Act, 2005 (hereinafter referred to as the ‘RTI Act’) on",
"7th October, 2009 seeking the copies of all note sheets",
and correspondence pages of file relating to one Ms.,
"Jyoti Balasundram, Member/CESTAT. The Under Secretary,",
who is the CPIO denied the information by impugned,
"letter dated 15th October, 2009 on the ground that the",
information sought attracts Clause 8(1)(j) of the RTI,
"Act, which reads as follows:­",
“R­20011­68/2009 – ADIC – CESTAT,
Government of India,
Ministry of Finance,
Department of Revenue,
"New Delhi, the 15.10.09",
To,
Shri R.K. Jain,
"1512­B, Bhishm Pitamah Marg,",
"Wazir Nagar,",
New Delhi – 110003,
Subject: Application under RTI Act.,
"Sir,",
Your RTI application No.RTI/09/2406 dated,
7.10.2009 seeks information from File No.27­,
2,
Page 2,
3/2002 Ad­1­C. The file contains analysis of,
Annual Confidential Report of Smt. Jyoti,
Balasundaram only which attracts clause 8 (1),
(j) of RTI Act. Therefore the information,
sought is denied.,
"Yours faithfully,",
(Victor James),
Under Secretary to the Govt. of India”,
"4. On an appeal under Section 19 of the RTI Act, the",
Director (Headquarters) and Appellate Authority by its,
"order dated 18th December, 2009 disallowed the same",
citing same ground as cited by the CPIO; the relevant,
portion of which reads as follows:,
“2. I have gone through the RTI application,
"dated 07.10.2009, wherein the Appellant had",
requested the following information;,
(A)Copies of all note sheets and,
correspondence pages of File No.,
27/3/2002 – Ad. IC relating to Ms. Jyoti,
Balasundaram.,
"(B)Inspection of all records, documents,",
files and note sheets of File,
No.27/3/2002 – Ad. IC.,
(C)Copies of records pointed out during /,
after inspection.,
3. I have gone through the reply dated,
"15.10.2009 of the Under Secretary, Ad. IC­",
CESTAT given to the Appellant stating that as,
the file contained analysis of the Annual,
"Confidential Report of Ms. Jyoti Balasundaram,",
furnishing of information is exempted under,
Section 9 (1) (j) of the R.T.I. Act.,
5. The provision of Section 8 (1) (j) of the,
"RTI Act, 2005 under which the information has",
been denied by the CPIO is reproduced,
hereunder:,
3,
Page 3,
“Information which relates to personal,
information the disclosure of which has no,
relationship to any public activity or,
"interest, or which would cause unwarranted",
invasion of the privacy of the individual,
unless the Central Public Information Officer,
or the State Public Information Officer or the,
"appellate authority, as the case may be, is",
satisfied that the larger public interest,
justifies the disclosure of such information……”,
6. File No.27/3/2002­ Ad.1C deals with follow­,
up action on the ACR for the year 2000­2001,
"in respect of Ms. Jyoti Balasundaram,",
"Member (Judicial), CEGAT” (now CESTAT).",
The matter discussed therein is personal,
and I am not inclined to accept the view of,
the Appellant the since Ms. Jyoti,
Balasundaram is holding the post of Member,
"(Judicial), CESTAT, larger public interest",
"is involved, which therefore, ousts the",
exemption provided under Section 8 (1) (j).,
"Moreover, Ms. Jyoti Balasundaram is still",
serving in the CESTAT and the ACR for the,
year 2000­2001 is still live and relevant,
insofar as her service is concerned.,
"Therefore, it may not be proper to rush up",
to the conclusion that the matter is over,
"and therefore, the information could have",
been given by the CPIO under Section 8(1),
(i). The file contains only 2 pages of,
the notes and 5 pages of the,
"correspondence, in which the ACR of the",
officer and the matter connected thereto,
"have been discussed, which is exempt from",
disclosure under the aforesaid Section.,
"The file contains no other information,",
which can be segregated and provided to the,
Appellant.,
"7. In view of the above, the appeal is",
disallowed.”,
"5. Thereafter, the appellant preferred a second",
appeal before the Central Information Commission under,
Section 19 (3) of the RTI Act which was also rejected,
"on 22nd April, 2010 with the following observations:­",
4,
Page 4,
“4. Appellant’s plea is that since the,
matter dealt in the above­mentioned file,
related to the integrity of a public,
"servant, the disclosure of the requested",
information should be authorized in public,
interest.,
5. It is not in doubt that the file,
referred to by the appellant related,
to the Annual Confidential Record of a,
"third­party, Ms. Jyoti Balasundaram",
and was specific to substantiation by,
the Reporting Officer of the comments,
made in her ACRs about the third –,
"party’s integrity. Therefore,",
appellant’s plea that the matter was,
about a public servant’s integrity,
per­se is not valid. The ACR examines,
all aspects of the performance and the,
personality of a public servant –,
integrity being one of them. An,
examination of the aspect of integrity,
"as part of the CR cannot, therefore,",
be equated with the vigilance enquiry,
against a public servant. Appellant,
was in error in equating the two.,
6. It has been the consistent position of,
this Commission that ACR grades can,
and should be disclosed to the person,
to whom the ACRs related and not to,
the third – parties except under,
exceptional circumstances.,
Commission’s decision in P.K. Sarvin,
Vs. Directorate General of Works,
(CPWD); Appeal No.,
CIC/WB/A/2007/00422; Date of Decision;,
19.02.2009 followed a Supreme Court,
order in Dev Dutt Vs. UOI (Civil,
Appeal No. 7631/2002).,
7. An examination on file of the comments,
made by the reporting and the,
reviewing officers in the ACRs of a,
"public servant, stands on the same",
footing as the ACRs itself. It,
"cannot, therefore, be authorized to be",
"disclosed to a third­party. In fact,",
even disclosure of such files to the,
5,
Page 5,
public servant to whom the ACRs may,
relate is itself open to debate.,
"8. In view of the above, I am not in a",
position to authorize disclosure of,
the information.”,
"6. On being aggrieved by the above order, the",
appellant filed a writ petition bearing W.P(C) No. 6756,
of 2010 before the Delhi High Court which was rejected,
by the learned Single Judge vide judgment dated 8th,
"December, 2011 relying on a judgment of Delhi High",
Court in Arvind Kejriwal vs. Central Public,
Information Officer reported in AIR 2010 Delhi 216.,
The learned Single Judge while observing that except in,
"cases involving overriding public interest, the ACR",
record of an officer cannot be disclosed to any person,
"other than the officer himself/herself, remanded the",
matter to the Central Information Commission (CIC for,
"short) for considering the issue whether, in the larger",
"public interest, the information sought by the",
appellant could be disclosed. It was observed that if,
the CIC comes to a conclusion that larger public,
interest justifies the disclosure of the information,
"sought by the appellant, the CIC would follow the",
procedure prescribed under Section 11 of Act.,
"7. On an appeal to the above order, by the impugned",
"judgment dated 20th April, 2012 the Division Bench of",
6,
Page 6,
Delhi High Court in LPA No.22 of 2012 dismissed the,
same. The Division Bench held that the judgment of the,
Delhi High Court Coordinate Bench in Arvind Kejriwal,
case (supra) binds the Court on all fours to the said,
case also.,
The Division Bench further held that the procedure,
under Section 11 (1) is mandatory and has to be,
followed which includes giving of notice to the,
concerned officer whose ACR was sought for. If that,
"officer, pleads private defence such defence has to be",
examined while deciding the issue as to whether the,
private defence is to prevail or there is an element of,
overriding public interest which would outweigh the,
private defence.,
"8. Mr. Prashant Bhushan, learned counsel for the",
appellant submitted that the appellant wanted,
"information in a separate file other than the ACR file,",
"namely, the “follow up action” which was taken by the",
Ministry of Finance about the remarks against,
‘integrity’ in the ACR of the Member. According to,
"him, it was different from asking the copy of the ACR",
"itself. However, we find that the learned Single Judge",
at the time of hearing ordered for production of the,
original records and after perusing the same came to,
7,
Page 7,
the conclusion that the information sought for was not,
different or distinguished from ACR. The learned,
Single Judge held that the said file contains,
correspondence in relation to the remarks recorded by,
the President of the CESTAT in relation to Ms. Jyoti,
"Balasundaram, a Member and also contains the reasons",
why the said remarks have eventually been dropped.,
"Therefore, recordings made in the said file constitute",
an integral part of the ACR record of the officer in,
question.,
Mr. Bhushan then submitted that ACR of a public,
servant has a relationship with public activity as he,
"discharges public duties and, therefore, the matter is",
of a public interest; asking for such information does,
not amount to any unwarranted invasion in the privacy,
of public servant. Referring to this Court’s decision,
"in the case of State of U.P. vs. Raj Narain, AIR 1975",
"SC 865, it was submitted that when such information can",
"be supplied to the Parliament, the information relating",
to the ACR cannot be treated as personal document or,
private document.,
9. It was also contended that with respect to this,
issue there are conflicting decisions of Division Bench,
of Kerala High Court in Centre for Earth Sciences,
8,
Page 8,
Studies vs. Anson Sebastian reported in 2010 ( 2) KLT,
233 and the Division Bench of Delhi High Court in,
Arvind Kejriwal vs. Central Public Information Officer,
reported in AIR 2010 Delhi 216.,
"10. Shri A. S. Chandiok, learned Additional Solicitor",
"General appearing for the respondents, in reply",
contended that the information relating to ACR relates,
to the personal information and may cause unwarranted,
"invasion of privacy of the individual, therefore,",
according to him the information sought for by the,
appellant relating to analysis of ACR of Ms. Jyoti,
Balasundaram is exempted under Section 8(1)(j) of the,
RTI Act and hence the same cannot be furnished to the,
appellant. He relied upon decision of this Court in,
Girish Ramchandra Deshpande vs. Central Information,
"Commissioner and others, reported in (2013) 1 SCC 212.",
"11. We have heard the learned counsel for the parties,",
"perused the records, the judgements as referred above",
and the relevant provisions of the Right to Information,
"Act, 2005.",
12. Section 8 deals with exemption from disclosure of,
"information. Under clause (j) of Section 8(1), there",
shall be no obligation to give any citizen information,
which relates to personal information the disclosure of,
9,
Page 9,
which has no relationship to any public activity or,
"interest, or which would cause unwarranted invasion of",
the privacy of the individual unless the Central Public,
Information Officer or the State Public Information,
Officer or the appellate authority is satisfied that,
the larger public interest justifies the disclosure of,
such information. The said clause reads as follows:­,
“Section 8 ­ Exemption from disclosure of,
information.­ (1) Notwithstanding anything,
"contained in this Act, there shall be no",
"obligation to give any citizen,­­",
xxx xxx xxx,
xxx xxx xxx,
(j) information which relates to personal,
information the disclosure of which has no,
"relationship to any public activity or interest,",
or which would cause unwarranted invasion of the,
privacy of the individual unless the Central,
Public Information Officer or the State Public,
"Information Officer or the appellate authority,",
"as the case may be, is satisfied that the larger",
public interest justifies the disclosure of such,
information:,
Provided that the information which cannot be,
denied to the Parliament or a State Legislature,
shall not be denied to any person.”,
13. On the other hand Section 11 deals with third,
party information and the circumstances when such,
information can be disclosed and the manner in which,
"it is to be disclosed, if so decided by the Competent",
"Authority. Under Section 11(1), if the information",
relates to or has been supplied by a third party and,
10,
Page 10,
"has been treated as confidential by the third party,",
and if the Central Public Information Officer or a,
State Public Information Officer intends to disclose,
any such information or record on a request made under,
"the Act, in such case after written notice to the third",
"party of the request, the Officer may disclose the",
"information, if the third party agrees to such request",
or if the public interest in disclosure outweighs in,
importance any possible harm or injury to the interests,
of such third party. Section 11(1) is quoted,
hereunder:,
“Section 11 ­ Third party information.­ (1),
Where a Central Public Information Officer or a,
"State Public Information Officer, as the case",
"may be, intends to disclose any information or",
"record, or part thereof on a request made under",
"this Act, which relates to or has been supplied",
by a third party and has been treated as,
"confidential by that third party, the Central",
Public Information Officer or State Public,
"Information Officer, as the case may be, shall,",
within five days from the receipt of the,
"request, give a written notice to such third",
party of the request and of the fact that the,
Central Public Information Officer or State,
"Public Information Officer, as the case may be,",
"intends to disclose the information or record,",
"or part thereof, and invite the third party to",
"make a submission in writing or orally,",
regarding whether the information should be,
"disclosed, and such submission of the third",
party shall be kept in view while taking a,
decision about disclosure of information:,
Provided that except in the case of trade or,
"commercial secrets protected by law, disclosure",
may be allowed if the public interest in,
disclosure outweighs in importance any possible,
11,
Page 11,
harm or injury to the interests of such third,
party.”,
14. In Centre for Earth Sciences Studies vs. Anson,
Sebastian reported in 2010(2) KLT 233 the Kerala High,
Court considered the question whether the information,
sought relates to personal information of other,
"employees, the disclosure of which is prohibited",
under Section 8(1) (j) of the RTI Act. In that case,
the Kerala High Court noticed that the information,
sought for by the first respondent pertains to copies,
of documents furnished in a domestic enquiry against,
one of the employees of the appellant­organization.,
Particulars of confidential reports maintained in,
respect of co­employees in the above said case (all,
of whom were Scientists) were sought from the,
appellant­organisation. The Division Bench of Kerala,
High Court after noticing the relevant provisions of,
RTI Act held that documents produced in a domestic,
enquiry cannot be treated as documents relating to,
"personal information of a person, disclosure of which",
will cause unwarranted invasion of privacy of such,
person. The Court further held that the confidential,
reports of the employees maintained by the employer,
cannot be treated as records pertaining to personal,
12,
Page 12,
information of an employee and publication of the,
same is not prohibited under Section 8(1) (j) of the,
RTI Act.,
15. The Delhi High Court in Arvind Kejriwal vs.,
Central Public Information Officer reported in AIR,
2010 Delhi 216 considered Section 11 of the RTI Act.,
The Court held that once the information seeker is,
"provided information relating to a third party, it is",
no longer in the private domain. Such information,
seeker can then disclose in turn such information to,
"the whole World. Therefore, for providing the",
information the procedure outlined under Section,
11(1) cannot be dispensed with. The following was,
the observation made by the Delhi High Court in,
Arvind Kejriwal (supra):,
"“22. Turning to the case on hand, the documents",
of which copies are sought are in the personal,
files of officers working at the levels of,
"Deputy Secretary, Joint Secretary, Director,",
Additional Secretary and Secretary in the,
Government of India. Appointments to these posts,
are made on a comparative assessment of the,
relative merits of various officers by a,
departmental promotion committee or a selection,
"committee, as the case may be. The evaluation of",
the past performance of these officers is,
contained in the ACRs. On the basis of the,
comparative assessment a grading is given. Such,
information cannot but be viewed as personal to,
such officers. Vis­à­vis a person who is not an,
employee of the Government of India and is,
seeking such information as a member of the,
"public, such information has to be viewed as",
13,
Page 13,
Constituting 'third party information'. This can,
be contrasted with a situation where a,
government employee is seeking information,
"concerning his own grading, ACR etc. That",
obviously does not involve 'third party',
information.,
"23. What is, however, important to note is that",
it is not as if such information is totally,
exempt from disclosure. When an application is,
"made seeking such information, notice would be",
issued by the CIC or the CPIOs or the State,
"Commission, as the case may be, to such 'third",
"party' and after hearing such third party, a",
decision will be taken by the CIC or the CPIOs,
or the State Commission whether or not to order,
disclosure of such information. The third party,
may plead a 'privacy' defence. But such defence,
"may, for good reasons, be overruled. In other",
"words, after following the procedure outlined in",
"Section 11(1) of the RTI Act, the CIC may still",
decide that information should be disclosed in,
public interest overruling any objection that,
the third party may have to the disclosure of,
such information.,
"24. Given the above procedure, it is not",
possible to agree with the submission of Mr.,
Bhushan that the word 'or' occurring in Section,
"11(1) in the phrase information ""which relates",
"to or has been supplied by a third party"" should",
"be read as 'and'. Clearly, information relating",
to a third party would also be third party,
information within the meaning of Section 11(1),
of the RTI Act. Information provided by such,
third party would of course also be third party,
information. These two distinct categories of,
third party information have been recognized,
under Section 11(1) of the Act. It is not,
possible for this Court in the circumstances to,
read the word 'or' as 'and'. The mere fact that,
"inspection of such files was permitted, without",
following the mandatory procedure under Section,
"11(1) does not mean that, at the stage of",
"furnishing copies of the documents inspected,",
"the said procedure can be waived. In fact, the",
procedure should have been followed even prior,
"to permitting inspection, but now the clock",
cannot be put back as far as that is concerned.,
14,
Page 14,
25. The logic of the Section 11(1) RTI Act is,
plain. Once the information seeker is provided,
"information relating to a third party, it is no",
longer in the private domain. Such information,
seeker can then disclose in turn such,
information to the whole world. There may be an,
officer who may not want the whole world to know,
why he or she was overlooked for promotion. The,
defence of privacy in such a case cannot be,
lightly brushed aside saying that since the,
officer is a public servant he or she cannot,
possibly fight shy of such disclosure. There may,
be yet another situation where the officer may,
have no qualms about such disclosure. And there,
may be a third category where the credentials of,
the officer appointed may be thought of as being,
in public interest to be disclosed. The,
importance of the post held may also be a factor,
that might weigh with the information officer.,
This exercise of weighing the competing,
interests can possibly be undertaken only after,
hearing all interested parties. Therefore the,
procedure under Section 11(1) RTI Act.,
"26. This Court, therefore, holds that the CIC",
was not justified in overruling the objection of,
the UOI on the basis of Section 11(1) of the,
RTI Act and directing the UOI and the DoPT to,
provide copies of the documents as sought by Mr.,
Kejriwal. Whatever may have been the past,
practice when disclosure was ordered of,
information contained in the files relating to,
appointment of officers and which information,
"included their ACRs, grading, vigilance",
"clearance etc., the mandatory procedure outlined",
under Section 11(1) cannot be dispensed with.,
The short question framed by this Court in the,
first paragraph of this judgment was answered in,
the affirmative by the CIC. This Court reverses,
the CIC's impugned order and answers it in the,
negative.,
27. The impugned order dated 12th June 2008 of,
the CIC and the consequential order dated 19th,
November 2008 of the CIC are hereby set aside.,
The appeals by Mr. Kejriwal will be restored to,
the file of the CIC for compliance with the,
procedure outlined under Section 11(1) RTI Act,
limited to the information Mr. Kejriwal now,
seeks.”,
15,
Page 15,
16. Recently similar issue fell for consideration,
before this Court in Girish Ramchandra Deshpande v.,
Central Information Commissioner and others reported in,
(2013) 1 SCC 212. That was a case in which Central,
Information Commissioner denied the information,
pertaining to the service career of the third party to,
the said case and also denied the details relating to,
"assets, liabilities, moveable and immovable properties",
of the third party on the ground that the information,
sought for was qualified to be personal information as,
defined in clause (j) of Section 8(1) of the RTI Act.,
In that case this Court also considered the question,
"whether the orders of censure/punishment, etc. are",
personal information and the performance of an,
"employee/officer in an organization, commonly known as",
Annual Confidential Report can be disclosed or not.,
This Court after hearing the parties and noticing the,
provisions of RTI Act held:,
“11. The petitioner herein sought for copies of,
"all memos, show­cause notices and",
censure/punishment awarded to the third,
respondent from his employer and also details,
viz. movable and immovable properties and also,
"the details of his investments, lending and",
borrowing from banks and other financial,
"institutions. Further, he has also sought for",
the details of gifts stated to have been,
"accepted by the third respondent, his family",
members and friends and relatives at the,
marriage of his son. The information mostly,
sought for finds a place in the income tax,
returns of the third respondent. The question,
16,
Page 16,
that has come up for consideration is: whether,
the abovementioned information sought for,
qualifies to be “personal information” as,
defined in clause (j) of Section 8(1) of the RTI,
Act.,
12. We are in agreement with the CIC and the,
courts below that the details called for by the,
petitioner i.e. copies of all memos issued to,
"the third respondent, show­cause notices and",
"orders of censure/punishment, etc. are qualified",
to be personal information as defined in clause,
(j) of Section 8(1) of the RTI Act. The,
performance of an employee/officer in an,
organisation is primarily a matter between the,
employee and the employer and normally those,
aspects are governed by the service rules which,
fall under the expression “personal,
"information”, the disclosure of which has no",
relationship to any public activity or public,
"interest. On the other hand, the disclosure of",
which would cause unwarranted invasion of,
"privacy of that individual. Of course, in a",
"given case, if the Central Public Information",
Officer or the State Public Information Officer,
or the appellate authority is satisfied that the,
larger public interest justifies the disclosure,
"of such information, appropriate orders could be",
passed but the petitioner cannot claim those,
details as a matter of right.,
13. The details disclosed by a person in his,
income tax returns are “personal information”,
which stand exempted from disclosure under,
"clause (j) of Section 8(1) of the RTI Act,",
unless involves a larger public interest and the,
Central Public Information Officer or the State,
Public Information Officer or the appellate,
authority is satisfied that the larger public,
interest justifies the disclosure of such,
information.,
14. The petitioner in the instant case has not,
made a bona fide public interest in seeking,
"information, the disclosure of such information",
would cause unwarranted invasion of privacy of,
the individual under Section 8(1)(j) of the RTI,
Act.,
"15. We are, therefore, of the view that the",
petitioner has not succeeded in establishing,
that the information sought for is for the,
"larger public interest. That being the fact, we",
are not inclined to entertain this special leave,
"petition. Hence, the same is dismissed.”",
17,
Page 17,
17. In view of the discussion made above and the,
decision in this Court in Girish Ramchandra,
"Deshpande(supra), as the appellant sought for",
inspection of documents relating to the ACR of the,
"Member, CESTAT, inter alia, relating to adverse",
entries in the ACR and the ‘follow up action’ taken,
"therein on the question of integrity, we find no reason",
to interfere with the impugned judgment passed by the,
Division Bench whereby the order passed by the learned,
"Single Judge was affirmed. In absence of any merit,",
the appeal is dismissed but there shall be no order as,
to costs.,
………..………………………………………..J.,
(G.S. SINGHVI),
………………………………………………….J.,
(SUDHANSU JYOTI,
MUKHOPADHAYA),
"NEW DELHI,",
"APRIL 16, 2013.",
18,
Page 18,
1,
REPORTABLE,
IN THE SUPREME COURT OF INDIA,
CIVIL APPEALLATE JURISDICTION,
CIVIL APPEAL NO. 9017 OF 2013,
(Arising out of SLP (C) No.24290 of 2012),
Thalappalam Ser. Coop. Bank,
Ltd. and others Appellants,
Versus,
State of Kerala and others,
Respondents,
WITH,
"CIVIL APPEAL NOs. 9020, 9029 & 9023 OF 2013",
"(Arising out of SLP (C) No.24291 of 2012, 13796 and 13797",
of 2013),
J U D G M E N T,
"K.S. Radhakrishnan, J.",
1. Leave granted.,
"2. We are, in these appeals, concerned with the question",
whether a co-operative society registered under the Kerala,
"Co-operative Societies Act, 1969 (for short “the Societies",
Page 1,
2,
Act”) will fall within the definition of “public authority” under,
"Section 2(h) of the Right to Information Act, 2005 (for short",
“the RTI Act”) and be bound by the obligations to provide,
information sought for by a citizen under the RTI Act.,
"3. A Full Bench of the Kerala High Court, in its judgment",
"reported in AIR 2012 Ker 124, answered the question in the",
affirmative and upheld the Circular No.23 of 2006 dated,
"01.06.2006, issued by the Registrar of the Co-operative",
"Societies, Kerala stating that all the co-operative institutions",
"coming under the administrative control of the Registrar, are",
“public authorities” within the meaning of Section 2(h) of the,
RTI Act and obliged to provide information as sought for.,
The question was answered by the Full Bench in view of the,
conflicting views expressed by a Division Bench of the Kerala,
"High Court in Writ Appeal No.1688 of 2009, with an earlier",
judgment of the Division Bench reported in Thalapalam,
Service Co-operative Bank Ltd. v. Union of India AIR,
"2010 Ker 6, wherein the Bench took the view that the",
question as to whether a co-operative society will fall under,
Page 2,
3,
"Section 2(h) of the RTI Act is a question of fact, which will",
depend upon the question whether it is substantially,
"financed, directly or indirectly, by the funds provided by the",
"State Government which, the Court held, has to be decided",
depending upon the facts situation of each case.,
"4. Mr. K. Padmanabhan Nair, learned senior counsel",
appearing for some of the societies submitted that the views,
expressed by the Division Bench in Thalapalam Service,
"Co-operative Bank Ltd. (supra) is the correct view, which",
calls for our approval. Learned senior counsel took us,
through the various provisions of the Societies Act as well as,
of the RTI Act and submitted that the societies are,
autonomous bodies and merely because the officers,
functioning under the Societies Act have got supervisory,
control over the societies will not make the societies public,
authorities within the meaning of Section 2(h) of the RTI Act.,
Learned senior counsel also submitted that these societies,
"are not owned, controlled or substantially financed, directly",
"or indirectly, by the State Government. Learned senior",
Page 3,
4,
counsel also submitted that the societies are not statutory,
bodies and are not performing any public functions and will,
not come within the expression “state” within the meaning,
under Article 12 of the Constitution of India.,
"5. Mr. Ramesh Babu MR, learned counsel appearing for",
"the State, supported the reasoning of the impugned",
judgment and submitted that such a circular was issued by,
the Registrar taking into consideration the larger public,
interest so as to promote transparency and accountability in,
the working of every co-operative society in the State of,
Kerala. Reference was also made to various provisions of,
the Societies Act and submitted that those provisions would,
indicate that the Registrar has got all pervading control over,
"the societies, including audit, enquiry and inspection and the",
power to initiate surcharge proceedings. Power is also,
vested on the Registrar under Section 32 of the Societies Act,
to supersede the management of the society and to appoint,
an administrator. This would indicate that though societies,
"are body corporates, they are under the statutory control of",
Page 4,
5,
the Registrar of Co-operative Societies. Learned counsel,
submitted that in such a situation they fall under the,
definition of “pubic authority” within the meaning of Section,
"2(h) of the RTI Act. Shri Ajay, learned counsel appearing for",
"the State Information Commission, stated that the",
applicability of the RTI Act cannot be excluded in terms of,
the clear provision of the Act and they are to be interpreted,
to achieve the object and purpose of the Act. Learned,
counsel submitted that at any rate having regard to the,
"definition of “information” in Section 2(f) of the Act, the",
access to information in relation to Societies cannot be,
denied to a citizen.,
Facts:,
"6. We may, for the disposal of these appeals, refer to the",
facts pertaining to Mulloor Rural Co-operative Society Ltd. In,
"that case, one Sunil Kumar stated to have filed an",
application dated 8.5.2007 under the RTI Act seeking,
particulars relating to the bank accounts of certain members,
"of the society, which the society did not provide. Sunil",
Page 5,
6,
Kumar then filed a complaint dated 6.8.2007 to the State,
"Information Officer, Kerala who, in turn, addressed a letter",
dated 14.11.2007 to the Society stating that application filed,
"by Sunil Kumar was left unattended. Society, then, vide",
letter dated 24.11.2007 informed the applicant that the,
information sought for is “confidential in nature” and one,
"warranting “commercial confidence”. Further, it was also",
pointed out that the disclosure of the information has no,
relationship to any “public activity” and held by the society,
"in a “fiduciary capacity”. Society was, however, served with",
an order dated 16.1.2008 by the State Information,
"Commission, Kerala, stating that the Society has violated the",
mandatory provisions of Section 7(1) of the RTI Act,
rendering themselves liable to be punished under Section 20,
of the Act. State Information Officer is purported to have,
relied upon a circular No.23/2006 dated 01.06.2006 issued,
"by the Registrar, Co-operative Societies bringing in all",
societies under the administrative control of the Registrar of,
"Co-operative Societies, as “public authorities” under Section",
2(h) of the RTI Act.,
Page 6,
7,
7. Mulloor Co-operative Society then filed Writ Petition,
"No.3351 of 2008 challenging the order dated 16.1.2008,",
which was heard by a learned Single Judge of the High Court,
along with other writ petitions. All the petitions were,
disposed of by a common judgment dated 03.04.2009,
holding that all co-operative societies registered under the,
Societies Act are public authorities for the purpose of the RTI,
Act and are bound to act in conformity with the obligations in,
Chapter 11 of the Act and amenable to the jurisdiction of the,
State Information Commission. The Society then preferred,
Writ Appeal No.1688 of 2009. While that appeal was,
"pending, few other appeals including WA No.1417 of 2009,",
filed against the common judgment of the learned Single,
Judge dated 03.04.2009 came up for consideration before,
another Division Bench of the High Court which set aside the,
"judgment of the learned Single Judge dated 03.04.2009, the",
judgment of which is reported in AIR 2010 Ker 6. The Bench,
held that the obedience to Circular No.23 dated 1.6.2006 is,
optional in the sense that if the Society feels that it satisfies,
Page 7,
8,
"the definition of Section 2(h), it can appoint an Information",
Officer under the RTI Act or else the State Information,
Commissioner will decide when the matter reaches before,
"him, after examining the question whether the Society is",
"substantially financed, directly or indirectly, by the funds",
"provided by the State Government. The Division Bench,",
"therefore, held that the question whether the Society is a",
public authority or not under Section 2(h) is a disputed,
question of fact which has to be resolved by the authorities,
under the RTI Act.,
8. Writ Appeal No.1688 of 2009 later came up before,
"another Division Bench, the Bench expressed some",
reservations about the views expressed by the earlier,
Division Bench in Writ Appeal No.1417 of 2009 and vide its,
"order dated 24.3.2011 referred the matter to a Full Bench, to",
examine the question whether co-operative societies,
registered under the Societies Act are generally covered,
under the definition of Section 2(h) of the RTI Act. The Full,
Bench answered the question in the affirmative giving a,
Page 8,
9,
"liberal construction of the words “public authority”, bearing",
"in mind the “transformation of law” which, according to the",
"Full Bench, is to achieve transparency and accountability",
with regard to affairs of a public body.,
"9. We notice, the issue raised in these appeals is of",
considerable importance and may have impact on similar,
other Societies registered under the various State,
enactments across the country.,
10. The State of Kerala has issued a letter dated 5.5.2006,
"to the Registrar of Co-operative Societies, Kerala with",
"reference to the RTI Act, which led to the issuance of Circular",
"No.23/2006 dated 01.06.2006, which reads as under:",
“G1/40332/05,
"Registrar of Co-operative Societies,",
"Thiruvananthapuram, Dated 01.06.2006",
Circular No.23/2006,
"Sub: Right to Information Act, 2005- Co-operative",
Institutions included in the definition of “Public Authority”,
Ref: Governments Letter No.3159/P.S.1/06,
Dated 05.05.2006,
Page 9,
10,
"According to Right to Information Act, 2005, sub-section",
(1) and (2) of Section 5 of the Act severy public authority,
within 100 days of the enactment of this Act designate as,
many officers as public information officers as may be,
necessary to provide information to persons requesting for,
information under the Act. In this Act Section 2(h) defines,
institutions which come under the definition of public,
authority. As per the reference letter the government,
"informed that, according to Section 2(h) of the Act all",
institutions formed by laws made by state legislature is a,
“public authority” and therefore all co-operative,
institutions coming under the administrative control of,
The Registrar of co-operative societies are also public,
authorities.,
In the above circumstance the following directions are,
issued:,
1. All co-operative institutions coming under the,
administrative control of the Registrar of co-operative,
societies are “public authorities” under the Right to,
"Information Act, 2005 (central law No.22 of 2005). Co-",
operative institutions are bound to give all information,
"to applications under the RTI Act, if not given they will",
be subjected to punishment under the Act. For this all,
co-operative societies should appoint public,
information/assistant public information officers,
immediately and this should be published in the,
government website.,
2. For giving information for applicants government order,
No.8026/05/government administration department act,
Page 10,
11,
and rule can be applicable and 10 rupees can be,
charged as fees for each application. Also as per GAD,
Act and rule and the government Order No.2383/06,
dated 01.04.2006.,
3. Details of Right to Information Act are available in the,
government website (www.kerala.gov.in..... ) or right to,
information gov.in ) other details regarding the Act are,
also available in the government website.,
4. Hereafter application for information from co-operative,
institutions need not be accepted by the information,
officers of this department. But if they get such,
applications it should be given back showing the,
reasons or should be forwarded to the respective co-,
operative institutions with necessary directions and the,
applicant should be informed about this. In this case it,
is directed to follow the time limit strictly.,
5. It is directed that all joint registrars/assistant registrars,
should take immediate steps to bring this to the urgent,
notice of all co-operative institutions. They should,
inform to this office the steps taken within one week.,
The Government Order No.2389/06 dated 01.04.2006 is,
also enclosed.,
Sd/-,
V. Reghunath,
Registrar of co-operative societies (in,
charge)”,
"11. The State Government, it is seen, vide its letter dated",
5.5.2006 has informed the Registrar of Co-operative,
Page 11,
12,
"Societies that, as per Section 2(h) of the Act, all institutions",
formed by laws made by State Legislature is a “public,
"authority” and, therefore, all co-operative institutions",
coming under the administrative control of the Registrar of,
Co-operative Societies are also public authorities.,
12. We are in these appeals concerned only with the co-,
operative societies registered or deemed to be registered,
"under the Co-operative Societies Act, which are not owned,",
controlled or substantially financed by the State or Central,
"Government or formed, established or constituted by law",
made by Parliament or State Legislature.,
Co-operative Societies and Article 12 of the,
Constitution:,
"13. We may first examine, whether the Co-operative",
"Societies, with which we are concerned, will fall within the",
expression “State” within the meaning of Article 12 of the,
"Constitution of India and, hence subject to all constitutional",
limitations as enshrined in Part III of the Constitution. This,
Page 12,
13,
Court in U.P. State Co-operative Land Development,
Bank Limited v. Chandra Bhan Dubey and others,
"(1999) 1 SCC 741, while dealing with the question of the",
maintainability of the writ petition against the U.P. State Co-,
operative Development Bank Limited held the same as an,
instrumentality of the State and an authority mentioned in,
"Article 12 of the Constitution. On facts, the Court noticed",
that the control of the State Government on the Bank is all,
pervasive and that the affairs of the Bank are controlled by,
the State Government though it is functioning as a co-,
"operative society, it is an extended arm of the State and",
thus an instrumentality of the State or authority as,
mentioned under Article 12 of the Constitution. In All India,
Sainik Schools employees’ Association v. Defence,
"Minister-cum-Chairman Board of Governors, Sainik",
"Schools Society, New Delhi and others (1989)",
"Supplement 1 SCC 205, this Court held that the Sainik",
School society is “State” within the meaning of Article 12 of,
the Constitution after having found that the entire funding is,
by the State Government and by the Central Government,
Page 13,
14,
and the overall control vests in the governmental authority,
and the main object of the society is to run schools and,
prepare students for the purpose feeding the National,
Defence Academy.,
14. This Court in Executive Committee of Vaish Degree,
"College, Shamli and Others v. Lakshmi Narain and",
"Others (1976) 2 SCC 58, while dealing with the status of",
the Executive Committee of a Degree College registered,
"under the Co-operative Societies Act, held as follows:",
“10………It seems to us that before an institution,
can be a statutory body it must be created by or,
under the statute and owe its existence to a,
statute. This must be the primary thing which has,
got to be established. Here a distinction must be,
made between an institution which is not created,
by or under a statute but is governed by certain,
statutory provisions for the proper maintenance,
and administration of the institution. There have,
been a number of institutions which though not,
created by or under any statute have adopted,
"certain statutory provisions, but that by itself is",
"not, in our opinion, sufficient to clothe the",
institution with a statutory character……….”,
"15. We can, therefore, draw a clear distinction between a",
"body which is created by a Statute and a body which, after",
Page 14,
15,
"having come into existence, is governed in accordance with",
"the provisions of a Statute. Societies, with which we are",
"concerned, fall under the later category that is governed by",
"the Societies Act and are not statutory bodies, but only body",
corporate within the meaning of Section 9 of the Kerala Co-,
operative Societies Act having perpetual succession and,
"common seal and hence have the power to hold property,",
"enter into contract, institute and defend suites and other",
legal proceedings and to do all things necessary for the,
"purpose, for which it was constituted. Section 27 of the",
Societies Act categorically states that the final authority of a,
society vests in the general body of its members and every,
society is managed by the managing committee constituted,
in terms of the bye-laws as provided under Section 28 of the,
Societies Act. Final authority so far as such types of,
"Societies are concerned, as Statute says, is the general body",
and not the Registrar of Cooperative Societies or State,
Government.,
Page 15,
16,
16. This Court in Federal Bank Ltd. v. Sagar Thomas,
"and Others (2003) 10 SCC 733, held as follows:",
“32.Merely because Reserve Bank of India,
lays the banking policy in the interest of the,
banking system or in the interest of monetary,
stability or sound economic growth having due,
regard to the interests of the depositors etc. as,
provided under Section 5(c)(a) of the Banking,
Regulation Act does not mean that the private,
companies carrying on the business or commercial,
"activity of banking, discharge any public function",
or public duty. These are all regulatory measures,
applicable to those carrying on commercial,
activity in banking and these companies are to act,
according to these provisions failing which certain,
consequences follow as indicated in the Act itself.,
As to the provision regarding acquisition of a,
"banking company by the Government, it may be",
pointed out that any private property can be,
acquired by the Government in public interest. It is,
now a judicially accepted norm that private,
interest has to give way to the public interest. If a,
private property is acquired in public interest it,
does not mean that the party whose property is,
acquired is performing or discharging any function,
or duty of public character though it would be so,
for the acquiring authority”.,
"17. Societies are, of course, subject to the control of the",
"statutory authorities like Registrar, Joint Registrar, the",
"Government, etc. but cannot be said that the State exercises",
any direct or indirect control over the affairs of the society,
Page 16,
17,
which is deep and all pervasive. Supervisory or general,
"regulation under the statute over the co-operative societies,",
which are body corporate does not render activities of the,
body so regulated as subject to such control of the State so,
as to bring it within the meaning of the “State” or,
instrumentality of the State. Above principle has been,
"approved by this Court in S.S. Rana v. Registrar, Co-",
operative Societies and another (2006) 11 SCC 634. In,
that case this Court was dealing with the maintainability of,
the writ petition against the Kangra Central Co-operative,
"Society Bank Limited, a society registered under the",
provisions of the Himachal Pradesh Co-operative Societies,
"Act, 1968. After examining various provisions of the H.P. Co-",
operative Societies Act this Court held as follows:,
“9. It is not in dispute that the Society has not,
been constituted under an Act. Its functions like,
any other cooperative society are mainly,
"regulated in terms of the provisions of the Act,",
except as provided in the bye-laws of the Society.,
The State has no say in the functions of the,
"Society. Membership, acquisition of shares and all",
other matters are governed by the bye-laws,
framed under the Act. The terms and conditions of,
"an officer of the cooperative society, indisputably,",
"are governed by the Rules. Rule 56, to which",
Page 17,
18,
"reference has been made by Mr Vijay Kumar, does",
not contain any provision in terms whereof any,
legal right as such is conferred upon an officer of,
the Society.,
10. It has not been shown before us that the State,
exercises any direct or indirect control over the,
affairs of the Society for deep and pervasive,
control. The State furthermore is not the majority,
shareholder. The State has the power only to,
"nominate one Director. It cannot, thus, be said",
that the State exercises any functional control,
over the affairs of the Society in the sense that the,
majority Directors are nominated by the State. For,
arriving at the conclusion that the State has a,
"deep and pervasive control over the Society,",
several other relevant questions are required to be,
"considered, namely, (1) How was the Society",
created? (2) Whether it enjoys any monopoly,
character? (3) Do the functions of the Society,
partake to statutory functions or public functions?,
and (4) Can it be characterised as public,
authority?,
"11. Respondent 2, the Society does not answer",
any of the aforementioned tests. In the case of a,
"non-statutory society, the control thereover would",
mean that the same satisfies the tests laid down,
by this Court in Ajay Hasia v. Khalid Mujib,
Sehravardi. [See Zoroastrian Coop. Housing,
"Society Ltd. v. Distt. Registrar, Coop. Societies",
(Urban).],
12. It is well settled that general regulations under,
"an Act, like the Companies Act or the Cooperative",
"Societies Act, would not render the activities of a",
company or a society as subject to control of the,
State. Such control in terms of the provisions of,
the Act are meant to ensure proper functioning of,
Page 18,
19,
the society and the State or statutory authorities,
would have nothing to do with its day-to-day,
functions.”,
"18. We have, on facts, found that the Co-operative",
"Societies, with which we are concerned in these appeals, will",
not fall within the expression “State” or “instrumentalities of,
the State” within the meaning of Article 12 of the,
Constitution and hence not subject to all constitutional,
limitations as enshrined in Part III of the Constitution. We,
"may, however, come across situations where a body or",
organization though not a State or instrumentality of the,
"State, may still satisfy the definition of public authority",
"within the meaning of Section 2(h) of the Act, an aspect",
which we may discuss in the later part of this Judgment.,
Constitutional provisions and Co-operative autonomy:,
19. Rights of the citizens to form co-operative societies,
"voluntarily, is now raised to the level of a fundamental right",
and State shall endeavour to promote their autonomous,
"functioning. The Parliament, with a view to enhance public",
faith in the co-operative institutions and to insulate them to,
Page 19,
20,
avoidable political or bureaucratic interference brought in,
"Constitutional (97th Amendment) Act, 2011, which received",
"the assent of the President on 12.01.2012, notified in the",
Gazette of India on 13.01.2012 and came into force on,
15.02.2012.,
20. Constitutional amendment has been effected to,
encourage economic activities of co-operatives which in turn,
help progress of rural India. Societies are expected not only,
to ensure autonomous and democratic functioning of co-,
"operatives, but also accountability of the management to the",
members and other share stake-holders. Article 19 protects,
certain rights regarding freedom of speech. By virtue of,
above amendment under Article 19(1)(c) the words “co-,
operative societies” are added. Article 19(1)(c) reads as,
under:,
“19(1)(c) – All citizens shall have the right to form,
associations or unions or co-operative societies”.,
"Article 19(1)(c), therefore, guarantees the freedom to form",
"an association, unions and co-operative societies. Right to",
Page 20,
21,
"form a co-operative society is, therefore, raised to the level",
"of a fundamental right, guaranteed under the Constitution of",
India. Constitutional 97th Amendment Act also inserted a,
new Article 43B with reads as follows :-,
“the State shall endeavour to promote voluntary,
"formation, autonomous functioning, democratic",
control and professional management of co-,
operative societies”.,
"21. By virtue of the above-mentioned amendment, Part IX-",
B was also inserted containing Articles 243ZH to 243ZT.,
"Cooperative Societies are, however, not treated as units of",
"self-government, like Panchayats and Municipalities.",
22. Article 243(ZL) dealing with the supersession and,
suspension of board and interim management states that,
notwithstanding anything contained in any law for the time,
"being in force, no board shall be superseded or kept under",
suspension for a period exceeding six months. It provided,
further that the Board of any such co-operative society shall,
not be superseded or kept under suspension where there is,
no government shareholding or loan or financial assistance,
Page 21,
22,
or any guarantee by the Government. Such a constitutional,
restriction has been placed after recognizing the fact that,
there are co-operative societies with no government share,
holding or loan or financial assistance or any guarantee by,
the government.,
23. Co-operative society is a state subject under Entry 32,
List I Seventh Schedule to the Constitution of India. Most of,
the States in India enacted their own Co-operative Societies,
Act with a view to provide for their orderly development of,
the cooperative sector in the state to achieve the objects of,
"equity, social justice and economic development, as",
"envisaged in the Directive Principles of State Policy,",
enunciated in the Constitution of India. For co-operative,
"societies working in more than one State, The Multi State Co-",
"operative Societies Act, 1984 was enacted by the Parliament",
under Entry 44 List I of the Seventh Schedule of the,
Constitution. Co-operative society is essentially an,
association or an association of persons who have come,
Page 22,
23,
together for a common purpose of economic development or,
for mutual help.,
Right to Information Act,
24. The RTI Act is an Act enacted to provide for citizens to,
"secure, access to information under the control of public",
authorities and to promote transparency and accountability,
in the working of every public authority. The preamble of,
the Act reads as follows:,
“An Act to provide for setting out the,
practical regime of right to information for citizens,
to secure access to information under the control,
"of public authorities, in order to promote",
transparency and accountability in the working of,
"every public authority, the constitution of a",
Central Information Commission and State,
Information Commissions and for matters,
connected therewith or incidental thereto.,
WHEREAS the Constitution of India has,
established democratic Republic;,
AND WHEREAS democracy requires an,
informed citizenry and transparency of information,
which are vital to its functioning and also to,
contain corruption and to hold Governments and,
their instrumentalities accountable to the,
governed;,
Page 23,
24,
AND WHEREAS revelation of information in,
actual practice is likely to conflict with other public,
interests including efficient operations of the,
"Governments, optimum use of limited fiscal",
resources and the preservation of confidentiality of,
sensitive information;,
AND WHEREAS it is necessary to harmonise,
these conflicting interests while preserving the,
paramountcy of the democratic ideal;,
"NOW, THEREFORE, it is expedient to provide",
for furnishing certain information to citizens who,
desire to have it.”,
25. Every public authority is also obliged to maintain all its,
record duly catalogued and indexed in a manner and the,
form which facilitates the right to information under this Act,
and ensure that all records that are appropriate to be,
"computerized are, within a reasonable time and subject to",
"availability of resources, computerized and connected",
through a network all over the country on different systems,
so that access to such record is facilitated. Public authority,
"has also to carry out certain other functions also, as provided",
under the Act.,
26. The expression “public authority” is defined under,
"Section 2(h) of the RTI Act, which reads as follows:",
Page 24,
25,
"“2. Definitions._ In this Act, unless the context",
otherwise requires :,
"(h) ""public authority"" means any authority or",
body or institution of self-government,
established or constituted—,
(a) by or under the Constitution;,
(b) by any other law made by Parliament;,
(c) by any other law made by State,
Legislature;,
(d) by notification issued or order made by,
"the appropriate Government, and",
includes any—,
"(i) body owned, controlled or",
substantially financed;,
(ii) non-Government organisation,
"substantially financed, directly or",
indirectly by funds provided by the,
appropriate Government”,
"27. Legislature, in its wisdom, while defining the expression",
"“public authority” under Section 2(h), intended to embrace",
"only those categories, which are specifically included, unless",
the context of the Act otherwise requires. Section 2(h) has,
used the expressions ‘means’ and includes’. When a word is,
"defined to ‘mean’ something, the definition is prima facie",
restrictive and where the word is defined to ‘include’ some,
Page 25,
26,
"other thing, the definition is prima facie extensive. But when",
"both the expressions “means” and “includes” are used, the",
categories mentioned there would exhaust themselves.,
Meanings of the expressions ‘means’ and ‘includes’ have,
been explained by this Court in Delhi Development,
Authority v. Bhola Nath Sharma (Dead) by LRs and,
"others (2011) 2 SCC 54, (in paras 25 to 28). When such",
"expressions are used, they may afford an exhaustive",
"explanation of the meaning which for the purpose of the Act,",
must invariably be attached to those words and expressions.,
28. Section 2(h) exhausts the categories mentioned,
therein. The former part of 2(h) deals with:,
(1) an authority or body or institution of self-government,
"established by or under the Constitution,",
(2) an authority or body or institution of self-,
government established or constituted by any other,
"law made by the Parliament,",
(3) an authority or body or institution of self-government,
established or constituted by any other law made by,
"the State legislature, and",
Page 26,
27,
(4) an authority or body or institution of self-government,
established or constituted by notification issued or,
order made by the appropriate government.,
"29. Societies, with which we are concerned, admittedly, do",
"not fall in the above mentioned categories, because none of",
"them is either a body or institution of self-government,",
"established or constituted under the Constitution, by law",
"made by the Parliament, by law made by the State",
Legislature or by way of a notification issued or made by the,
appropriate government. Let us now examine whether they,
"fall in the later part of Section 2(h) of the Act, which",
embraces within its fold:,
"(5) a body owned, controlled or substantially financed,",
directly or indirectly by funds provided by the,
"appropriate government,",
(6) non-governmental organizations substantially financed,
directly or indirectly by funds provided by the,
appropriate government.,
30 The expression ‘Appropriate Government’ has also,
"been defined under Section 2(a) of the RTI Act, which reads",
as follows :,
Page 27,
28,
“2(a). “appropriate Government” means in,
relation to a public authority which is,
"established, constituted, owned, controlled",
or substantially financed by funds provided,
directly or indirectly-,
(i) by the Central Government or the,
"Union territory administration, the",
Central Government;,
"(ii) by the State Government, the State",
Government.”,
"31. The RTI Act, therefore, deals with bodies which are",
"owned, controlled or substantially financed, directly or",
"indirectly, by funds provided by the appropriate government",
and also non-government organizations substantially,
"financed, directly or indirectly, by funds provided by the",
"appropriate government, in the event of which they may fall",
within the definition of Section 2(h)(d)(i) or (ii) respectively.,
"As already pointed out, a body, institution or an organization,",
which is neither a State within the meaning of Article 12 of,
"the Constitution or instrumentalities, may still answer the",
definition of public authority under Section 2(h)d (i) or (ii).,
(a) Body owned by the appropriate government – A,
body owned by the appropriate government clearly falls,
"under Section 2(h)(d)(i) of the Act. A body owned, means to",
Page 28,
29,
have a good legal title to it having the ultimate control over,
"the affairs of that body, ownership takes in its fold control,",
finance etc. Further discussion of this concept is,
"unnecessary because, admittedly, the societies in question",
are not owned by the appropriate government.,
(b) Body Controlled by the Appropriate Government,
A body which is controlled by the appropriate,
government can fall under the definition of public authority,
under Section 2h(d)(i). Let us examine the meaning of the,
expression “controlled” in the context of RTI Act and not in,
the context of the expression “controlled” judicially,
interpreted while examining the scope of the expression,
“State” under Article 12 of the Constitution or in the context,
of maintainability of a writ against a body or authority under,
Article 226 of the Constitution of India. The word,
"“control” or “controlled” has not been defined in the RTI Act,",
"and hence, we have to understand the scope of the",
expression ‘controlled’ in the context of the words which,
exist prior and subsequent i.e. “body owned” and,
Page 29,
30,
“substantially financed” respectively. The meaning of the,
word “control” has come up for consideration in several,
cases before this Court in different contexts. In State of,
"West Bengal and another v. Nripendra Nath Bagchi,",
AIR 1966 SC 447 while interpreting the scope of Article 235,
"of the Constitution of India, which confers control by the",
"High Court over District Courts, this Court held that the word",
“control” includes the power to take disciplinary action and,
all other incidental or consequential steps to effectuate this,
end and made the following observations :,
"“The word ‘control’, as we have seen, was used for",
the first time in the Constitution and it is,
accompanied by the word ‘vest’ which is a strong,
word. It shows that the High Court is made the,
sole custodian of the control over the judiciary.,
"Control, therefore, is not merely the power to",
arrange the day to day working of the court but,
contemplates disciplinary jurisdiction over the,
"presiding Judge.... In our judgment, the control",
which is vested in the High Court is a complete,
control subject only to the power of the Governor,
in the matter of appointment (including dismissal,
and removal) and posting and promotion of,
District Judges. Within the exercise of the control,
"vested in the High Court, the High Court can hold",
"enquiries, impose punishments other than",
"dismissal or removal, ...”",
Page 30,
31,
32. The above position has been reiterated by this Court in,
Chief Justice of Andhra Pradesh and others v. L.V.A.,
Dixitulu and others (1979) 2 SCC 34. In Corporation of,
"the City of Nagpur Civil Lines, Nagpur and another v.",
"Ramchandra and others (1981) 2 SCC 714, while",
interpreting the provisions of Section 59(3) of the City of,
"Nagpur Corporation Act, 1948, this Court held as follows :",
“4. It is thus now settled by this Court that the,
term “control” is of a very wide connotation and,
amplitude and includes a large variety of powers,
which are incidental or consequential to achieve,
the powers-vested in the authority,
concerned…….”,
33. The word “control” is also sometimes used synonyms,
"with superintendence, management or authority to direct,",
restrict or regulate by a superior authority in exercise of its,
supervisory power. This Court in The Shamrao Vithal Co-,
operative Bank Ltd. v. Kasargode Pandhuranga,
"Mallya (1972) 4 SCC 600, held that the word “control” does",
not comprehend within itself the adjudication of a claim,
made by a co-operative society against its members. The,
Page 31,
32,
meaning of the word “control” has also been considered by,
this Court in State of Mysore v. Allum Karibasappa &,
"Ors. (1974) 2 SCC 498, while interpreting Section 54 of the",
"Mysore Cooperative Societies Act, 1959 and Court held that",
"the word “control” suggests check, restraint or influence and",
intended to regulate and hold in check and restraint from,
action. The expression “control” again came up for,
consideration before this Court in Madan Mohan,
"Choudhary v. State of Bihar & Ors. (1999) 3 SCC 396, in",
the context of Article 235 of the Constitution and the Court,
held that the expression “control” includes disciplinary,
"control, transfer, promotion, confirmation, including transfer",
of a District Judge or recall of a District Judge posted on ex-,
cadre post or on deputation or on administrative post etc. so,
also premature and compulsory retirement. Reference may,
also be made to few other judgments of this Court reported,
in Gauhati High Court and another v. Kuladhar Phukan,
"and another (2002) 4 SCC 524, State of Haryana v.",
"Inder Prakash Anand HCS and others (1976) 2 SCC 977,",
High Court of Judicature for Rajasthan v. Ramesh,
Page 32,
33,
"Chand Paliwal and Another (1998) 3 SCC 72, Kanhaiya",
"Lal Omar v. R.K. Trivedi and others (1985) 4 SCC 628,",
TMA Pai Foundation and others v. State of Karnataka,
"(2002) 8 SCC 481, Ram Singh and others v. Union",
"Territory, Chandigarh and others (2004) 1 SCC 126, etc.",
34. We are of the opinion that when we test the meaning of,
expression “controlled” which figures in between the words,
"“body owned” and “substantially financed”, the control by",
the appropriate government must be a control of a,
substantial nature. The mere ‘supervision’ or ‘regulation’ as,
such by a statute or otherwise of a body would not make,
that body a “public authority” within the meaning of Section,
2(h)(d)(i) of the RTI Act. In other words just like a body,
owned or body substantially financed by the appropriate,
"government, the control of the body by the appropriate",
government would also be substantial and not merely,
supervisory or regulatory. Powers exercised by the Registrar,
of Cooperative Societies and others under the Cooperative,
"Societies Act are only regulatory or supervisory in nature,",
Page 33,
34,
which will not amount to dominating or interfering with the,
management or affairs of the society so as to be controlled.,
Management and control are statutorily conferred on the,
Management Committee or the Board of Directors of the,
Society by the respective Cooperative Societies Act and not,
on the authorities under the Co-operative Societies Act.,
"35. We are, therefore, of the view that the word",
“controlled” used in Section 2(h)(d)(i) of the Act has to be,
understood in the context in which it has been used vis-a-vis,
a body owned or substantially financed by the appropriate,
"government, that is the control of the body is of such a",
degree which amounts to substantial control over the,
management and affairs of the body.,
SUBSTANTIALLY FINANCED,
36. The words “substantially financed” have been used in,
"Sections 2(h)(d)(i) & (ii), while defining the expression public",
Page 34,
35,
"authority as well as in Section 2(a) of the Act, while defining",
the expression “appropriate Government”. A body can be,
"substantially financed, directly or indirectly by funds",
provided by the appropriate Government. The expression,
"“substantially financed”, as such, has not been defined",
under the Act. “Substantial” means “in a substantial,
manner so as to be substantial”. In Palser v. Grimling,
"(1948) 1 All ER 1, 11 (HL), while interpreting the provisions",
of Section 10(1) of the Rent and Mortgage Interest,
"Restrictions Act, 1923, the House of Lords held that",
“substantial” is not the same as “not unsubstantial” i.e. just,
enough to avoid the de minimis principle. The word,
"“substantial” literally means solid, massive etc. Legislature",
has used the expression “substantially financed” in Sections,
2(h)(d)(i) and (ii) indicating that the degree of financing must,
"be actual, existing, positive and real to a substantial extent,",
"not moderate, ordinary, tolerable etc.",
37. We often use the expressions “questions of law” and,
“substantial questions of law” and explain that any question,
Page 35,
36,
of law affecting the right of parties would not by itself be a,
substantial question of law. In Black's Law Dictionary,
"(6th Edn.), the word 'substantial' is defined as 'of real worth",
and importance; of considerable value; valuable. Belonging,
to substance; actually existing; real: not seeming or,
imaginary; not illusive; solid; true; veritable. Something,
worthwhile as distinguished from something without value or,
merely nominal. Synonymous with material.' The word,
'substantially' has been defined to mean 'essentially; without,
material qualification; in the main; in substance; materially.',
"In the Shorter Oxford English Dictionary (5th Edn.), the word",
'substantial' means 'of ample or considerable amount of size;,
"sizeable, fairly large; having solid worth or value, of real",
"significance; sold; weighty; important, worthwhile; of an act,",
"measure etc. having force or effect, effective, thorough.' The",
word 'substantially' has been defined to mean 'in substance;,
"as a substantial thing or being; essentially, intrinsically.'",
Therefore the word 'substantial' is not synonymous with,
'dominant' or 'majority'. It is closer to 'material' or,
'important' or 'of considerable value.' 'Substantially' is closer,
Page 36,
37,
to 'essentially'. Both words can signify varying degrees,
depending on the context.,
"38. Merely providing subsidiaries, grants, exemptions,",
"privileges etc., as such, cannot be said to be providing",
"funding to a substantial extent, unless the record shows that",
the funding was so substantial to the body which practically,
"runs by such funding and but for such funding, it would",
struggle to exist. The State may also float many schemes,
generally for the betterment and welfare of the cooperative,
"sector like deposit guarantee scheme, scheme of assistance",
"from NABARD etc., but those facilities or assistance cannot",
be termed as “substantially financed” by the State,
Government to bring the body within the fold of “public,
"authority” under Section 2(h)(d)(i) of the Act. But, there are",
"instances, where private educational institutions getting",
ninety five per cent grant-in-aid from the appropriate,
"government, may answer the definition of public authority",
under Section 2(h)(d)(i).,
Page 37,
38,
NON-GOVERNMENT ORGANISATIONS:,
"39. The term “Non-Government Organizations” (NGO), as",
"such, is not defined under the Act. But, over a period of",
"time, the expression has got its own meaning and, it has to",
"be seen in that context, when used in the Act. Government",
"used to finance substantially, several non-government",
"organizations, which carry on various social and welfare",
"activities, since those organizations sometimes carry on",
"functions which are otherwise governmental. Now, the",
"question, whether an NGO has been substantially financed or",
"not by the appropriate Government, may be a question of",
"fact, to be examined by the authorities concerned under the",
RTI Act. Such organization can be substantially financed,
either directly or indirectly by funds provided by the,
appropriate Government. Government may not have any,
"statutory control over the NGOs, as such, still it can be",
established that a particular NGO has been substantially,
financed directly or indirectly by the funds provided by the,
"appropriate Government, in such an event, that organization",
Page 38,
39,
will fall within the scope of Section 2(h)(d)(ii) of the RTI Act.,
"Consequently, even private organizations which are, though",
not owned or controlled but substantially financed by the,
appropriate Government will also fall within the definition of,
“public authority” under Section 2(h)(d)(ii) of the Act.,
BURDEN TO SHOW:,
"40. The burden to show that a body is owned, controlled or",
substantially financed or that a non-government,
organization is substantially financed directly or indirectly by,
the funds provided by the appropriate Government is on the,
applicant who seeks information or the appropriate,
Government and can be examined by the State Information,
Commission or the Central Information Commission as the,
"case may be, when the question comes up for consideration.",
"A body or NGO is also free to establish that it is not owned,",
controlled or substantially financed directly or indirectly by,
the appropriate Government.,
Page 39,
40,
41. Powers have been conferred on the Central Information,
Commissioner or the State Information Commissioner under,
Section 18 of the Act to inquire into any complaint received,
from any person and the reason for the refusal to access to,
"any information requested from a body owned, controlled or",
"substantially financed, or a non-government organization",
substantially financed directly or indirectly by the funds,
provided by the appropriate Government. Section 19 of the,
Act provides for an appeal against the decision of the Central,
Information Officer or the State Information Officer to such,
officer who is senior in rank to the Central Information,
"Officer or the State Information Officer, as the case may be,",
"in each public authority. Therefore, there is inbuilt",
mechanism in the Act itself to examine whether a body is,
"owned, controlled or substantially financed or an NGO is",
"substantially financed, directly or indirectly, by funds",
provided by the appropriate authority.,
42. Legislative intention is clear and is discernible from,
"Section 2(h) that intends to include various categories,",
Page 40,
41,
discussed earlier. It is trite law that the primarily language,
employed is the determinative factor of the legislative,
intention and the intention of the legislature must be found,
in the words used by the legislature itself. In Magor and,
St. Mellons Rural District Council v. New Port,
Corporation (1951) 2 All ER 839(HL) stated that the courts,
are warned that they are not entitled to usurp the legislative,
function under the guise of interpretation. This Court in,
D.A. Venkatachalam and others v. Dy. Transport,
"Commissioner and others (1977) 2 SCC 273, Union of",
India v. Elphinstone Spinning and Weaving Co. Ltd.,
"and others (2001) 4 SCC 139, District Mining Officer",
and others v. Tata Iron & Steel Co. and another (2001),
"7 SCC 358, Padma Sundara Rao (Dead) and others v.",
"State of Tamil Nadu and others (2002) 3 SCC 533,",
Maulvi Hussain Haji Abraham Umarji v. State of,
Gujarat and another (2004) 6 SCC 672 held that the court,
must avoid the danger of an apriori determination of the,
meaning of a provision based on their own preconceived,
notions of ideological structure or scheme into which the,
Page 41,
42,
provisions to be interpreted is somehow fitted. It is trite law,
"that words of a statute are clear, plain and unambiguous i.e.",
"they are reasonably susceptible to only one meaning, the",
courts are bound to give effect to that meaning irrespective,
"of the consequences, meaning thereby when the language is",
"clear and unambiguous and admits of only one meaning, no",
"question of construction of a statute arises, for the statute",
speaks for itself. This Court in Kanai Lal Sur v.,
Paramnidhi Sadhukhan AIR 1957 SC 907 held that “if the,
words used are capable of one construction only then it,
would not be open to courts to adopt any other hypothetical,
construction on the ground that such construction is more,
consistent with the alleged object and policy of the Act.”,
43. We are of the view that the High Court has given a,
complete go-bye to the above-mentioned statutory,
principles and gone at a tangent by mis-interpreting the,
meaning and content of Section 2(h) of the RTI Act. Court,
has given a liberal construction to expression “public,
"authority” under Section 2(h) of the Act, bearing in mind the",
Page 42,
43,
“transformation of law” and its “ultimate object” i.e. to,
"achieve “transparency and accountability”, which according",
to the court could alone advance the objective of the Act.,
"Further, the High Court has also opined that RTI Act will",
certainly help as a protection against the mismanagement of,
the society by the managing committee and the society’s,
liabilities and that vigilant members of the public body by,
"obtaining information through the RTI Act, will be able to",
"detect and prevent mismanagement in time. In our view,",
the categories mentioned in Section 2(h) of the Act exhaust,
"themselves, hence, there is no question of adopting a liberal",
construction to the expression “public authority” to bring in,
"other categories into its fold, which do not satisfy the tests",
"we have laid down. Court cannot, when language is clear",
"and unambiguous, adopt such a construction which,",
"according to the Court, would only advance the objective of",
the Act. We are also aware of the opening part of the,
definition clause which states “unless the context otherwise,
requires”. No materials have been made available to show,
"that the cooperative societies, with which we are concerned,",
Page 43,
44,
"in the context of the Act, would fall within the definition of",
Section 2(h) of the Act.,
Right to Information and the Right to Privacy,
44. People’s right to have access to an official information,
finds place in Resolution 59(1) of the UN General Assembly,
held in 1946. It states that freedom of information is a,
fundamental human right and the touchstone to all the,
freedoms to which the United Nations is consecrated. India,
is a party to the International Covenant on Civil and Political,
Rights and hence India is under an obligation to effectively,
guarantee the right to information. Article 19 of the,
Universal Declaration of Human Rights also recognizes right,
to information. Right to information also emanates from the,
fundamental right guaranteed to citizens under Article 19(1),
(a) of the Constitution of India. Constitution of India does not,
explicitly grant a right to information. In Bennet Coleman,
& Co. and others Vs. Union of India and others (1972),
"2 SCC 788, this Court observed that it is indisputable that by",
"“Freedom of Press” meant the right of all citizens to speak,",
Page 44,
45,
publish and express their views and freedom of speech and,
expression includes within its compass the right of all,
citizens to read and be informed. In Union of India Vs.,
Association of Democratic Reforms and another (2002),
"5 SCC 294, this Court held that the right to know about the",
antecedents including criminal past of the candidates,
contesting the election for Parliament and State Assembly is,
a very important and basic facets for survival of democracy,
"and for this purpose, information about the candidates to be",
selected must be disclosed. In State of U.P. Vs. Raj,
"Narain and others (1975) 4 SCC 428, this Court recognized",
that the right to know is the right that flows from the right of,
freedom of speech and expression guaranteed under Article,
19(1)(a) of the Constitution. In People’s Union for Civil,
Liberties (PUCL) and others Vs. Union of India and,
"another (2003) 4 SCC 399, this Court observed that the",
right to information is a facet of freedom of speech and,
expression contained in Article 19(1)(a) of the Constitution of,
India. Right to information thus indisputably is a,
Page 45,
46,
"fundamental right, so held in several judgments of this",
"Court, which calls for no further elucidation.",
"45. The Right to Information Act, 2005 is an Act which",
provides for setting up the practical regime of right to,
information for citizens to secure access to information,
under the control of public authorities in order to promote,
transparency and accountability in the working of every,
public authority. Preamble of the Act also states that the,
democracy requires an informed citizenry and transparency,
of information which are vital to its functioning and also to,
contain corruption and to hold Governments and their,
instrumentalities accountable to the governed. Citizens,
"have, however, the right to secure access to information of",
only those matters which are “under the control of public,
"authorities”, the purpose is to hold “Government and its",
instrumentalities” accountable to the governed.,
"Consequently, though right to get information is a",
fundamental right guaranteed under Article 19(1)(a) of the,
"Constitution, limits are being prescribed under the Act itself,",
Page 46,
47,
which are reasonable restrictions within the meaning of,
Article 19(2) of the Constitution of India.,
46. Right to privacy is also not expressly guaranteed under,
"the Constitution of India. However, the Privacy Bill, 2011 to",
provide for the right to privacy to citizens of India and to,
"regulate the collection, maintenance and dissemination of",
their personal information and for penalization for violation,
"of such rights and matters connected therewith, is pending.",
In several judgments including Kharak Singh Vs. State of,
"U.P. and others AIR 1963 SC 1295, R. Rajagopal alias",
R.R. Gopal and another Vs. State of Tamil Nadu and,
"others (1994) 6 SCC 632, People’s Union for Civil",
Liberties (PUCL) Vs. Union of India and another (1997),
1 SCC 301 and State of Maharashtra Vs. Bharat Shanti,
"Lal Shah and others (2008) 13 SCC 5, this Court has",
recognized the right to privacy as a fundamental right,
emanating from Article 21 of the Constitution of India. Right,
to privacy is also recognized as a basic human right under,
Page 47,
48,
"Article 12 of the Universal Declaration of Human Rights Act,",
"1948, which states as follows:",
“No one shall be subjected to arbitrary,
"interference with his privacy, family, home or",
"correspondence, not to attack upon his honour",
and reputation. Everyone has the right to the,
protection of law against such interference or,
attacks.”,
Article 17 of the International Covenant on Civil and Political,
"Rights Act, 1966, to which India is a party also protects that",
right and states as follows:,
“No one shall be subjected to arbitrary or unlawful,
"interference with his privacy, family, home and",
correspondence nor to unlawful attacks on his,
honour and reputation….”,
This Court in R. Rajagopal (supra) held as follows :-,
“The right to privacy is implicit in the right to life,
and liberty guaranteed to the citizens of this,
country by Article 21. It is a “right to be let,
alone”. A citizen has a right to safeguard the,
"privacy of his own, his family, marriage,",
"procreation, motherhood, child bearing and",
education among other matters.”,
Page 48,
49,
Restrictions and Limitations:,
"47. Right to information and Right to privacy are, therefore,",
"not absolute rights, both the rights, one of which falls under",
Article 19(1)(a) and the other under Article 21 of the,
"Constitution of India, can obviously be regulated, restricted",
and curtailed in the larger public interest. Absolute or,
uncontrolled individual rights do not and cannot exist in any,
modern State. Citizens’ right to get information is statutorily,
"recognized by the RTI Act, but at the same time limitations",
"are also provided in the Act itself, which is discernible from",
"the Preamble and other provisions of the Act. First of all, the",
scope and ambit of the expression “public authority” has,
been restricted by a statutory definition under Section 2(h),
limiting it to the categories mentioned therein which exhaust,
"itself, unless the context otherwise requires. Citizens, as",
"already indicated by us, have a right to get information, but",
can have access only to the information “held” and under,
"the “control of public authorities”, with limitations. If the",
Page 49,
50,
"information is not statutorily accessible by a public authority,",
"as defined in Section 2(h) of the Act, evidently, those",
information will not be under the “control of the public,
"authority”. Resultantly, it will not be possible for the citizens",
to secure access to those information which are not under,
"the control of the public authority. Citizens, in that event,",
"can always claim a right to privacy, the right of a citizen to",
"access information should be respected, so also a citizen’s",
right to privacy.,
48. Public authority also is not legally obliged to give or,
"provide information even if it is held, or under its control, if",
that information falls under clause (j) of Sub-section (1) of,
Section 8. Section 8(1)(j) is of considerable importance so,
"far as this case is concerned, hence given below, for ready",
reference:-,
“8. Exemption from disclosure of,
information – (1) Notwithstanding anything,
"contained in this Act, there shall be no obligation",
to give any citizen –,
(a) to (i) xxx xxx xxx,
Page 50,
51,
(j) information which relates to personal,
information the disclosure of which has no,
"relationship to any public activity or interest, or",
which would cause unwarranted invasion of the,
privacy of the individual unless the Central Public,
Information Officer or the State Public Information,
"Officer or the appellate authority, as the case may",
"be, is satisfied that the larger public interest",
justifies the disclosure of such information:,
Provided that the information which cannot be,
denied to the Parliament or a State Legislature,
shall not be denied to any person.”,
"49. Section 8 begins with a non obstante clause, which",
"gives that Section an overriding effect, in case of conflict,",
"over the other provisions of the Act. Even if, there is any",
"indication to the contrary, still there is no obligation on the",
public authority to give information to any citizen of what,
"has been mentioned in clauses (a) to (j). Public authority,",
"as already indicated, cannot access all the information from",
"a private individual, but only those information which he is",
"legally obliged to pass on to a public authority by law, and",
also only those information to which the public authority can,
have access in accordance with law. Even those,
"information, if personal in nature, can be made available",
only subject to the limitations provided in Section 8(j) of the,
Page 51,
52,
"RTI Act. Right to be left alone, as propounded in Olmstead",
v. The United States reported in 1927 (277) US 438 is the,
most comprehensive of the rights and most valued by,
civilized man.,
50. Recognizing the fact that the right to privacy is a,
"sacrosanct facet of Article 21 of the Constitution, the",
legislation has put a lot of safeguards to protect the rights,
"under Section 8(j), as already indicated. If the information",
sought for is personal and has no relationship with any,
public activity or interest or it will not sub-serve larger public,
"interest, the public authority or the officer concerned is not",
legally obliged to provide those information. Reference may,
be made to a recent judgment of this Court in Girish,
Ramchandra Deshpande v. Central Information,
"Commissioner and others (2013) 1 SCC 212, wherein this",
Court held that since there is no bona fide public interest in,
"seeking information, the disclosure of said information would",
cause unwarranted invasion of privacy of the individual,
"under Section 8(1)(j) of the Act. Further, if the authority",
Page 52,
53,
finds that information sought for can be made available in,
"the larger public interest, then the officer should record his",
"reasons in writing before providing the information, because",
"the person from whom information is sought for, has also a",
right to privacy guaranteed under Article 21 of the,
Constitution.,
"51. We have found, on facts, that the Societies, in these",
"appeals, are not public authorities and, hence, not legally",
obliged to furnish any information sought for by a citizen,
"under the RTI Act. All the same, if there is any dispute on",
facts as to whether a particular Society is a public authority,
"or not, the State Information Commission can examine the",
same and find out whether the Society in question satisfies,
"the test laid in this judgment. Now, the next question is",
whether a citizen can have access to any information of,
these Societies through the Registrar of Cooperative,
"Societies, who is a public authority within the meaning of",
Section 2(h) of the Act.,
Registrar of Cooperative Societies,
Page 53,
54,
52. Registrar of Cooperative Societies functioning under the,
Cooperative Societies Act is a public authority within the,
"meaning of Section 2(h) of the Act. As a public authority,",
Registrar of Co-operative Societies has been conferred with,
lot of statutory powers under the respective Act under which,
he is functioning. He is also duty bound to comply with the,
obligations under the RTI Act and furnish information to a,
citizen under the RTI Act. Information which he is expected,
to provide is the information enumerated in Section 2(f) of,
the RTI Act subject to the limitations provided under Section,
"8 of the Act. Registrar can also, to the extent law permits,",
"gather information from a Society, on which he has",
supervisory or administrative control under the Cooperative,
"Societies Act. Consequently, apart from the information as is",
"available to him, under Section 2(f), he can also gather those",
"information from the Society, to the extent permitted by law.",
Registrar is also not obliged to disclose those information if,
those information fall under Section 8(1)(j) of the Act. No,
"provision has been brought to our knowledge indicating that,",
Page 54,
55,
"under the Cooperative Societies Act, a Registrar can call for",
the details of the bank accounts maintained by the citizens,
or members in a cooperative bank. Only those information,
which a Registrar of Cooperative Societies can have access,
under the Cooperative Societies Act from a Society could be,
said to be the information which is “held” or “under the,
"control of public authority”. Even those information,",
"Registrar, as already indicated, is not legally obliged to",
provide if those information falls under the exempted,
category mentioned in Section 8(j) of the Act. Apart from,
"the Registrar of Co-operative Societies, there may be other",
public authorities who can access information from a Co-,
operative Bank of a private account maintained by a,
"member of Society under law, in the event of which, in a",
"given situation, the society will have to part with that",
information. But the demand should have statutory backing.,
"53. Consequently, an information which has been sought",
"for relates to personal information, the disclosure of which",
has no relationship to any public activity or interest or which,
Page 55,
56,
would cause unwarranted invasion of the privacy of the,
"individual, the Registrar of Cooperative Societies, even if he",
"has got that information, is not bound to furnish the same to",
"an applicant, unless he is satisfied that the larger public",
"interest justifies the disclosure of such information, that too,",
for reasons to be recorded in writing.,
"54. We, therefore, hold that the Cooperative Societies",
registered under the Kerala Co-operative Societies Act will,
not fall within the definition of “public authority” as defined,
under Section 2(h) of the RTI Act and the State Government,
letter dated 5.5.2006 and the circular dated 01.06.2006,
"issued by the Registrar of Co-operative Societies, Kerala, to",
"the extent, made applicable to societies registered under the",
Kerala Co-operative Societies Act would stand quashed in,
"the absence of materials to show that they are owned,",
controlled or substantially financed by the appropriate,
"Government. Appeals are, therefore, allowed as above,",
"however, with no order as to costs.",
Page 56,
57,
………..………………….J.,
(K.S. Radhakrishnan),
……………………………J.,
(A.K. Sikri),
"New Delhi,",
"October 07, 2013",
Page 57,
REPORTABLE,
IN THE SUPREME COURT OF INDIA,
CIVIL APPELLATE JURISDICTION,
CIVIL APPEAL No.22 OF 2009,
Canara Bank Rep. by,
its Deputy Gen. Manager ….Appellant(s),
VERSUS,
C.S. Shyam & Anr. …Respondent(s),
J U D G M E N T,
"Abhay Manohar Sapre, J.",
1) This appeal is filed against the final judgment,
and order dated 20.09.2007 passed by the High,
Court of Kerala at Ernakulam in Writ Appeal No.,
2100 of 2007 whereby the High Court disposed of,
the writ appeal filed by the appellant herein and,
upheld the judgment passed by the Single Judge,
dismissing the writ petition filed by the appellant,
1,
herein challenging the order of the Central,
Information Commission holding that the appellant,
must provide the information sought by respondent,
"No.1 herein under the Right to Information Act,",
2005 (hereinafter referred to as “the Act”).,
2) Few relevant facts need mention to appreciate,
the controversy involved in appeal.,
3) The appellant herein is a nationalized Bank. It,
has a branch in District Malappuram in the State of,
"Kerala. Respondent No. 1, at the relevant time, was",
working in the said Branch as a clerical staff.,
"4) On 01.08.2006, respondent No.1 submitted an",
application to the Public Information Officer of the,
appellant-Bank under Section 6 of the Act and,
sought information regarding transfer and posting,
of the entire clerical staff from 01.01.2002 to,
31.07.2006 in all the branches of the,
appellant-Bank.,
2,
5) The information was sought on 15 parameters,
with regard to various aspects of transfers of clerical,
staff and staff of the Bank with regard to individual,
employees. This information was in relation to the,
personal details of individual employee such as the,
"date of his/her joining, designation, details of",
"promotion earned, date of his/her joining to the",
"Branch where he/she is posted, the authorities who",
issued the transfer orders etc. etc.,
"6) On 29.08.2006, the Public Information Officer",
of the Bank expressed his inability to furnish the,
"details sought by respondent No. 1 as, in his view,",
"firstly, the information sought was protected from",
being disclosed under Section 8(1)(j) of the Act and,
"secondly, it had no nexus with any public interest",
or activity.,
"7) Respondent No.1, felt aggrieved, filed appeal",
before the Chief Public Information Officer. By,
3,
"order dated 30.09.2006, the Chief Public",
Information Officer agreeing with the view taken by,
the Public Information Officer dismissed the appeal,
and affirmed the order of the Public Information,
Officer.,
"8) Felt aggrieved, respondent No.1 carried the",
matter in further appeal before the Central,
Information Commission. By order dated,
"26.02.2007, the appeal was allowed and accordingly",
directions were issued to the Bank to furnish the,
information sought by respondent No.1 in his,
application.,
"9) Against the said order, the appellant-Bank",
filed writ petition before the High Court. The Single,
Judge of the High Court dismissed the writ petition,
filed by the appellant-Bank. Challenging the said,
"order, the appellant-Bank filed writ appeal before",
the High Court.,
4,
"10) By impugned order, the Division Bench of the",
High Court dismissed the appellant's writ appeal,
and affirmed the order of the Central Information,
"Commission, which has given rise to filing of this",
appeal.,
11) Having heard the learned counsel for the,
"appellant and on perusal of the record of the case,",
"we are inclined to allow the appeal, set aside the",
impugned order and dismiss the application,
submitted by the 1st respondent under Section 6 of,
the Act.,
"12) In our considered opinion, the issue involved",
herein remains no more res integra and stands,
settled by two decisions of this Court in Girish,
Ramchandra Deshpande vs. Central Information,
"Commissioner & Ors., (2013) 1 SCC 212 and R.K.",
"Jain vs. Union of India & Anr., (2013) 14 SCC 794,",
5,
it may not be necessary to re-examine any legal,
issue urged in this appeal.,
13) In Girish Ramchandra Deshpande's case,
"(supra), the petitioner therein (Girish) had sought",
some personal information of one employee working,
in Sub Regional Office (provident fund) Akola. All,
"the authorities, exercising their respective powers",
"under the Act, declined the prayer for furnishing the",
information sought by the petitioner. The High,
Court in writ petition filed by the petitioner upheld,
"the orders. Aggrieved by all the order, he filed",
special leave to appeal in this Court. Their,
Lordships dismissed the appeal and upholding the,
orders passed by the High Court held as under:-,
“12. We are in agreement with the CIC and,
the courts below that the details called for by,
the petitioner i.e. copies of all memos issued,
"to the third respondent, show-cause notices",
"and orders of censure/punishment, etc. are",
qualified to be personal information as,
defined in clause (j) of Section 8(1) of the RTI,
Act. The performance of an employee/officer,
in an organisation is primarily a matter,
6,
between the employee and the employer and,
normally those aspects are governed by the,
service rules which fall under the expression,
"“personal information”, the disclosure of",
which has no relationship to any public,
"activity or public interest. On the other hand,",
the disclosure of which would cause,
unwarranted invasion of privacy of that,
"individual. Of course, in a given case, if the",
Central Public Information Officer or the,
State Public Information Officer or the,
appellate authority is satisfied that the larger,
public interest justifies the disclosure of such,
"information, appropriate orders could be",
passed but the petitioner cannot claim those,
details as a matter of right.,
13. The details disclosed by a person in his,
income tax returns are “personal,
information” which stand exempted from,
disclosure under clause (j) of Section 8(1) of,
"the RTI Act, unless involves a larger public",
interest and the Central Public Information,
Officer or the State Public Information,
Officer or the appellate authority is satisfied,
that the larger public interest justifies the,
disclosure of such information.”,
"14) In our considered opinion, the aforementioned",
principle of law applies to the facts of this case on,
"all force. It is for the reasons that, firstly, the",
information sought by respondent No.1 of individual,
employees working in the Bank was personal in,
"nature; secondly, it was exempted from being",
7,
"disclosed under Section 8(j) of the Act and lastly,",
neither respondent No.1 disclosed any public,
interest much less larger public interest involved in,
seeking such information of the individual employee,
and nor any finding was recorded by the Central,
Information Commission and the High Court as to,
the involvement of any larger public interest in,
supplying such information to respondent No.1.,
"15) It is for these reasons, we are of the considered",
view that the application made by respondent No.1,
under Section 6 of the Act was wholly misconceived,
"and was, therefore, rightly rejected by the Public",
Information Officer and Chief Public Information,
Officer whereas wrongly allowed by the Central,
Information Commission and the High Court.,
"16) In this view of the matter, we allow the appeal,",
set aside the order of the High Court and Central,
Information Commission and restore the orders,
8,
passed by the Public Information Officer and the,
"Chief Public Information Officer. As a result, the",
application submitted by respondent No.1 to the,
appellant-Bank dated 01.08.2006 (Annexure-P-1),
stands rejected.,
………...................................J.,
[R.K. AGRAWAL],
…...……..................................J.,
[ABHAY MANOHAR SAPRE],
New Delhi;,
"August 31, 2017",
9,
Reportable,
IN THE SUPREME COURT OF INDIA,
CIVIL APPELALTE JURISDICTION,
CIVIL APPEAL NO.6454 OF 2011,
[Arising out of SLP [C] No.7526/2009],
Central Board of Secondary Education & Anr. … Appellants,
Vs.,
Aditya Bandopadhyay & Ors. … Respondents,
With,
CA No. 6456 of 2011 (@ SLP (C) No.9755 of 2009),
CA Nos.6457-6458 of 2011 (@ SLP (C) Nos.11162-11163 of 2009),
CA No.6461 of 2011 (@ SLP (C) No.11670 of 2009),
CA Nos.6462 of 2011 (@ SLP (C) No.13673 of 2009),
CA Nos.6464 of 2011 (@ SLP (C) No.17409 of 2009),
CA Nos. 6459 of 2011 (@ SLP (C) No.9776 of 2010),
CA Nos.6465-6468 of 2011 (@ SLP (C) Nos.30858-30861 of 2009),
J U D G M E N T,
"R.V.RAVEENDRAN, J.",
"Leave granted. For convenience, we will refer to the facts of the first",
case.,
"2. The first respondent appeared for the Secondary School Examination,",
2008 conducted by the Central Board of Secondary Education (for short,
2,
‘CBSE’ or the ‘appellant’). When he got the mark sheet he was disappointed,
with his marks. He thought that he had done well in the examination but his,
answer-books were not properly valued and that improper valuation had,
resulted in low marks. Therefore he made an application for inspection and,
re-evaluation of his answer-books. CBSE rejected the said request by letter,
dated 12.7.2008. The reasons for rejection were:,
(i) The information sought was exempted under Section 8(1)(e) of RTI,
Act since CBSE shared fiduciary relationship with its evaluators and,
maintain confidentiality of both manner and method of evaluation.,
(ii) The Examination Bye-laws of the Board provided that no candidate,
shall claim or is entitled to re-evaluation of his answers or disclosure,
or inspection of answer book(s) or other documents.,
(iii) The larger public interest does not warrant the disclosure of such,
information sought.,
"(iv) The Central Information Commission, by its order dated 23.4.2007 in",
appeal no. ICPB/A-3/CIC/2006 dated 10.2.2006 had ruled out such,
disclosure.”,
3. Feeling aggrieved the first respondent filed W.P. No.18189(W)/2008,
before the Calcutta High Court and sought the following reliefs : (a) for a,
declaration that the action of CBSE in excluding the provision of re-,
"evaluation of answer-sheets, in regard to the examinations held by it was",
"illegal, unreasonable and violative of the provisions of the Constitution of",
3,
India; (b) for a direction to CBSE to appoint an independent examiner for re-,
evaluating his answer-books and issue a fresh marks card on the basis of re-,
evaluation; (c) for a direction to CBSE to produce his answer-books in,
regard to the 2008 Secondary School Examination so that they could be,
properly reviewed and fresh marks card can be issued with re-evaluation,
marks; (d) for quashing the communication of CBSE dated 12.7.2008 and,
for a direction to produce the answer-books into court for inspection by the,
first respondent. The respondent contended that section 8(1)(e) of Right to,
"Information Act, 2005 (‘RTI Act’ for short) relied upon by CBSE was not",
applicable and relied upon the provisions of the RTI Act to claim inspection.,
"4. CBSE resisted the petition. It contended that as per its Bye-laws, re-",
evaluation and inspection of answer-books were impermissible and what,
was permissible was only verification of marks. They relied upon the CBSE,
"Examination Bye-law No.61, relevant portions of which are extracted",
below:,
“61. Verification of marks obtained by a Candidate in a subject,
(i) A candidate who has appeared at an examination conducted by the,
Board may apply to the concerned Regional Officer of the Board for,
verification of marks in any particular subject. The verification will be,
restricted to checking whether all the answer's have been evaluated and,
that there has been no mistake in the totalling of marks for each question,
in that subject and that the marks have been transferred correctly on the,
title page of the answer book and to the award list and whether the,
4,
supplementary answer book(s) attached with the answer book mentioned,
by the candidate are intact. No revaluation of the answer book or,
supplementary answer book(s) shall be done.,
(ii) Such an application must be made by the candidate within 21 days,
from the date of the declaration of result for Main Examination and 15,
days for Compartment Examination.,
(iii) All such applications must be accompanied by payment of fee as,
prescribed by the Board from time to time.,
"(iv) No candidate shall claim, or be entitled to, revaluation of his/her",
answers or disclosure or inspection of the answer book(s) or other,
documents.,
xxxx,
(vi) In no case the verification of marks shall be done in the presence of,
"the candidate or anyone else on his/her behalf, nor will the answer books",
be shown to him/her or his/her representative.,
(vii) Verification of marks obtained by a candidate will be done by the,
officials appointed by or with the approval of the Chairman.,
"(viii) The marks, on verification will be revised upward or downward, as",
per the actual marks obtained by the candidate in his/her answer book.,
xxxx,
62. Maintenance of Answer Books,
The answer books shall be maintained for a period of three months and,
shall thereafter be disposed of in the manner as decided by the Chairman,
from time to time.”,
(emphasis supplied),
CBSE submitted that 12 to 13 lakhs candidates from about 9000 affiliated,
schools across the country appear in class X and class XII examinations,
conducted by it and this generates as many as 60 to 65 lakhs of answer-,
"books; that as per Examination Bye-law No.62, it maintains the answer",
5,
books only for a period of three months after which they are disposed of. It,
was submitted that if candidates were to be permitted to seek re-evaluation,
"of answer books or inspection thereof, it will create confusion and chaos,",
subjecting its elaborate system of examinations to delay and disarray. It was,
"stated that apart from class X and class XII examinations, CBSE also",
conducts several other examinations (including the All India Pre-Medical,
"Test, All India Engineering Entrance Examination and Jawahar Navodaya",
Vidyalaya’s Selection Test). If CBSE was required to re-evaluate the,
answer-books or grant inspection of answer-books or grant certified copies,
"thereof, it would interfere with its effective and efficient functioning, and",
will also require huge additional staff and infrastructure. It was submitted,
that the entire examination system and evaluation by CBSE is done in a,
scientific and systemic manner designed to ensure and safeguard the high,
academic standards and at each level utmost care was taken to achieve the,
"object of excellence, keeping in view the interests of the students. CBSE",
referred to the following elaborate procedure for evaluation adopted by it :,
“The examination papers are set by the teachers with at least 20 years of,
teaching experience and proven integrity. Paper setters are normally,
appointed from amongst academicians recommended by then Committee,
of courses of the Board. Every paper setter is asked to set more than one,
set of question papers which are moderated by a team of moderators who,
are appointed from the academicians of the University or from amongst,
the Senior Principals. The function of the moderation team is to ensure,
correctness and consistency of different sets of question papers with the,
curriculum and to assess the difficulty level to cater to the students of,
6,
different schools in different categories. After assessing the papers from,
"every point of view, the team of moderators gives a declaration whether",
"the whole syllabus is covered by a set of question papers, whether the",
distribution of difficulty level of all the sets is parallel and various other,
aspects to ensure uniform standard. The Board also issues detailed,
instructions for the guidance of the moderators in order to ensure uniform,
criteria for assessment.,
The evaluation system on the whole is well organized and fool-proof. All,
the candidates are examined through question papers set by the same,
paper setters. Their answer books are marked with fictitious roll numbers,
so as to conceal their identity. The work of allotment of fictitious roll,
number is carried out by a team working under a Chief Secrecy Officer,
having full autonomy. The Chief Secrecy Officer and his team of,
assistants are academicians drawn from the Universities and other,
autonomous educational bodies not connected with the Board. The Chief,
Secrecy Officer himself is usually a person of the rank of a University,
professor. No official of the Board at the Central or Regional level is,
associated with him in performance of the task assigned to him. The codes,
of fictitious roll numbers and their sequences are generated by the Chief,
Secrecy Officer himself on the basis of mathematical formula which,
randomize the real roll numbers and are known only to him and his team.,
This ensures complete secrecy about the identification of the answer book,
"so much so, that even the Chairman, of the Board and the Controller of",
Examination of the Board do not have any information regarding the,
fictitious roll numbers granted by the Chief Secrecy Officer and their real,
counterpart numbers.,
"At the evaluation stage, the Board ensures complete fairness and",
uniformity by providing a marking scheme which is uniformity applicable,
to all the examiners in order to eliminate the chances of subjectivity.,
These marking schemes are jointly prepared at the Headquarters of the,
Board in Delhi by the Subject Experts of all the regions. The main purpose,
of the marking scheme is to maintain uniformity in the evaluation of the,
answer books.,
The evaluation of the answer books in all major subjects including,
"mathematics, science subjects is done in centralized “on the spot”",
evaluation centers where the examiners get answer book in interrupted,
"serial orders. Also, the answer books are jumbled together as a result of",
"which the examiners, say in Bangalore may be marking the answer book",
"of a candidate who had his examination in Pondicherry, Goa, Andaman",
"and Nicobar islands, Kerala, Andhra Pradesh, Tamil Nadu or Karnataka",
itself but he has no way of knowing exactly which answer book he is,
examining. The answer books having been marked with fictitious roll,
numbers give no clue to any examiner about the state or territory it,
7,
belongs to. It cannot give any clue about the candidate’s school or centre,
of examination. The examiner cannot have any inclination to do any,
favour to a candidate because he is unable to decodify his roll number or,
"to know as to which school, place or state or territory he belongs to.",
The examiners check all the questions in the papers thoroughly under the,
supervision of head examiner and award marks to the sub parts,
individually not collectively. They take full precautions and due attention,
is given while assessing an answer book to do justice to the candidate. Re-,
evaluation is administratively impossible to be allowed in a Board where,
lakhs of students take examination in multiple subjects.,
There are strict instructions to the additional head examiners not to allow,
any shoddy work in evaluation and not to issue more than 20-25 answer,
books for evaluation to an examiner on a single day. The examiners are,
practicing teachers who guard the interest of the candidates. There is no,
ground to believe that they do unjust marking and deny the candidates,
their due. It is true that in some cases totaling errors have been detected at,
the stage of scrutiny or verification of marks. In order to minimize such,
"errors and to further strengthen and to improve its system, from 1993",
checking of totals and other aspects of the answers has been trebled in,
order to detect and eliminate all lurking errors.,
The results of all the candidates are reviewed by the Results Committee,
functioning at the Head Quarters. The Regional Officers are not the,
number of this Committee. This Committee reviews the results of all the,
regions and in case it decides to standardize the results in view of the,
"results shown by the regions over the previous years, it adopts a uniform",
policy for the candidates of all the regions. No special policy is adopted,
"for any region, unless there are some special reasons. This practice of",
awarding standardized marks in order to moderate the overall results is a,
practice common to most of the Boards of Secondary Education. The,
exact number of marks awarded for the purpose of standardization in,
different subjects varies from year to year. The system is extremely,
impersonalized and has no room for collusion infringement. It is in a word,
a scientific system.”,
CBSE submitted that the procedure evolved and adopted by it ensures,
fairness and accuracy in evaluation of answer-books and made the entire,
process as foolproof as possible and therefore denial of re-evaluation or,
8,
inspection or grant of copies cannot be considered to be denial of fair play or,
unreasonable restriction on the rights of the students.,
5. A Division Bench of the High Court heard and disposed of the said,
writ petition along with the connected writ petitions (relied by West Bengal,
Board of Secondary Education and others) by a common judgment dated,
5.2.2009. The High Court held that the evaluated answer-books of an,
examinee writing a public examination conducted by statutory bodies like,
"CBSE or any University or Board of Secondary Education, being a",
"‘document, manuscript record, and opinion’ fell within the definition of",
“information” as defined in section 2(f) of the RTI Act. It held that the,
provisions of the RTI Act should be interpreted in a manner which would,
lead towards dissemination of information rather than withholding the same;,
"and in view of the right to information, the examining bodies were bound to",
provide inspection of evaluated answer books to the examinees.,
Consequently it directed CBSE to grant inspection of the answer books to,
the examinees who sought information. The High Court however rejected,
"the prayer made by the examinees for re-evaluation of the answer-books, as",
that was not a relief that was available under RTI Act. RTI Act only,
"provided a right to access information, but not for any consequential reliefs.",
9,
"Feeling aggrieved by the direction to grant inspection, CBSE has filed this",
appeal by special leave.,
6. Before us the CBSE contended that the High Court erred in (i),
"directing CBSE to permit inspection of the evaluated answer books, as that",
"would amount to requiring CBSE to disobey its Examination Bye-law 61(4),",
which provided that no candidate shall claim or be entitled to re-evaluation,
of answer books or disclosure/inspection of answer books; (ii) holding that,
"Bye-law 61(4) was not binding upon the examinees, in view of the",
"overriding effect of the provisions of the RTI Act, even though the validity",
of that bye-law had not been challenged; (iii) not following the decisions of,
this court in Maharashtra State Board of Secondary Education vs. Paritosh,
"B. Sheth [1984 (4) SCC 27], Parmod Kumar Srivastava vs. Chairman, Bihar",
"PAC [2004 (6) SCC 714], Board of Secondary Education vs. Pavan Ranjan",
"P [2004 (13) SCC 383], Board of Secondary Education vs. S [2007 (1) SCC",
"603] and Secretary, West Bengal Council of Higher Secondary Education",
vs. I Dass [2007 (8) SCC 242]; and (iv) holding that the examinee had a,
right to inspect his answer book under section 3 of the RTI Act and the,
examining bodies like CBSE were not exempted from disclosure of,
information under section 8(1)(e) of the RTI Act. The appellants contended,
"that they were holding the “information” (in this case, the evaluated answer",
10,
books) in a fiduciary relationship and therefore exempted under section,
8(1)(e) of the RTI Act.,
7. The examinees and the Central Information Commission contended,
that the object of the RTI Act is to ensure maximum disclosure of,
information and minimum exemptions from disclosure; that an examining,
"body does not hold the evaluated answer books, in any fiduciary relationship",
either with the student or the examiner; and that the information sought by,
"any examinee by way of inspection of his answer books, will not fall under",
any of the exempted categories of information enumerated in section 8 of the,
RTI Act. It was submitted that an examining body being a public authority,
"holding the ‘information’, that is, the evaluated answer-books, and the",
inspection of answer-books sought by the examinee being exercise of ‘right,
"to information’ as defined under the Act, the examinee as a citizen has the",
right to inspect the answer-books and take certified copies thereof. It was,
"also submitted that having regard to section 22 of the RTI Act, the",
provisions of the said Act will have effect notwithstanding anything,
"inconsistent in any law and will prevail over any rule, regulation or bye law",
of the examining body barring or prohibiting inspection of answer books.,
11,
"8. On the contentions urged, the following questions arise for our",
consideration :,
(i) Whether an examinee’s right to information under the RTI Act,
includes a right to inspect his evaluated answer books in a public,
examination or taking certified copies thereof?,
(ii) Whether the decisions of this court in Maharashtra State Board of,
Secondary Education [1984 (4) SCC 27] and other cases referred to,
"above, in any way affect or interfere with the right of an examinee",
seeking inspection of his answer books or seeking certified copies,
thereof?,
(iii) Whether an examining body holds the evaluated answer books “in a,
fiduciary relationship” and consequently has no obligation to give,
inspection of the evaluated answer books under section 8 (1)(e) of,
RTI Act?,
(iv) If the examinee is entitled to inspection of the evaluated answer books,
"or seek certified copies thereof, whether such right is subject to any",
"limitations, conditions or safeguards?",
Relevant Legal Provisions,
"9. To consider these questions, it is necessary to refer to the statement of",
"objects and reasons, the preamble and the relevant provisions of the RTI",
12,
"Act. RTI Act was enacted in order to ensure smoother, greater and more",
effective access to information and provide an effective framework for,
effectuating the right of information recognized under article 19 of the,
Constitution. The preamble to the Act declares the object sought to be,
achieved by the RTI Act thus:,
“An Act to provide for setting out the practical regime of right to,
information for citizens to secure access to information under the control,
"of public authorities, in order to promote transparency and accountability",
"in the working of every public authority, the constitution of a Central",
Information Commission and State Information Commissions and for,
matters connected therewith or incidental thereto.,
Whereas the Constitution of India has established democratic Republic;,
And whereas democracy requires an informed citizenry and transparency,
of information which are vital to its functioning and also to contain,
corruption and to hold Governments and their instrumentalities,
accountable to the governed;,
And whereas revelation of information in actual practice is likely to,
conflict with other public interests including efficient operations of the,
"Governments, optimum use of limited fiscal resources and the",
preservation of confidentiality of sensitive information;,
And whereas it is necessary to harmonise these conflicting interests while,
preserving the paramountcy of the democratic ideal.”,
Chapter II of the Act containing sections 3 to 11 deals with right to,
information and obligations of public authorities. Section 3 provides for,
"right to information and reads thus: “Subject to the provisions of this Act,",
all citizens shall have the right to information.” This section makes it clear,
13,
"that the RTI Act gives a right to a citizen to only access information, but not",
seek any consequential relief based on such information. Section 4 deals,
with obligations of public authorities to maintain the records in the manner,
provided and publish and disseminate the information in the manner,
provided. Section 6 deals with requests for obtaining information. It,
provides that applicant making a request for information shall not be,
required to give any reason for requesting the information or any personal,
details except those that may be necessary for contacting him. Section 8,
deals with exemption from disclosure of information and is extracted in its,
entirety:,
“8. Exemption from disclosure of information -- (1) Notwithstanding,
"anything contained in this Act, there shall be no obligation to give any",
"citizen,-",
"(a) information, disclosure of which would",
"prejudicially affect the sovereignty and integrity of India, the security,",
"strategic, scientific or economic interests of the State, relation with foreign",
State or lead to incitement of an offence;,
(b) information which has been expressly forbidden to,
be published by any court of law or tribunal or the disclosure of which,
may constitute contempt of court;,
"(c) information, the disclosure of which would cause a",
breach of privilege of Parliament or the State Legislature;,
"(d) information including commercial confidence, trade",
"secrets or intellectual property, the disclosure of which would harm the",
"competitive position of a third party, unless the competent authority is",
satisfied that larger public interest warrants the disclosure of such,
information;,
14,
(e) information available to a person in his fiduciary,
"relationship, unless the competent authority is satisfied that the larger",
public interest warrants the disclosure of such information;,
(f) information received in confidence from foreign,
Government;,
"(g) information, the disclosure of which would",
endanger the life or physical safety of any person or identify the source of,
information or assistance given in confidence for law enforcement or,
security purposes;,
(h) information which would impede the process of,
investigation or apprehension or prosecution of offenders;,
(i) cabinet papers including records of deliberations of,
"the Council of Ministers, Secretaries and other officers:",
"Provided that the decisions of Council of Ministers, the reasons thereof,",
and the material on the basis of which the decisions were taken shall be,
"made public after the decision has been taken, and the matter is complete,",
or over:,
Provided further that those matters which come under the exemptions,
specified in this section shall not be disclosed;,
(j) information which relates to personal information,
the disclosure of which has no relationship to any public activity or,
"interest, or which would cause unwarranted invasion of the privacy of the",
individual unless the Central Public Information Officer or the State,
"Public Information Officer or the appellate authority, as the case may be,",
is satisfied that the larger public interest justifies the disclosure of such,
information:,
Provided that the information which cannot be denied to the Parliament or,
a State Legislature shall not be denied to any person.,
(2) Notwithstanding anything in the Official Secrets,
"Act, 1923 (19 of 1923) nor any of the exemptions permissible in",
"accordance with sub-section (1), a public authority may allow access to",
"information, if public interest in disclosure outweighs the harm to the",
protected interests.,
"(3) Subject to the provisions of clauses (a), (c) and (i)",
"of sub-section (1), any information relating to any occurrence, event or",
"matter which has taken place, occurred or happened twenty years before",
15,
the date on which any request is made under secton 6 shall be provided to,
any person making a request under that section:,
Provided that where any question arises as to the date from which the said,
"period of twenty years has to be computed, the decision of the Central",
"Government shall be final, subject to the usual appeals provided for in this",
Act.”,
(emphasis supplied),
"Section 9 provides that without prejudice to the provisions of section 8, a",
request for information may be rejected if such a request for providing,
access would involve an infringement of copyright. Section 10 deals with,
severability of exempted information and sub-section (1) thereof is extracted,
below:,
“(1) Where a request for access to information is rejected on the ground,
"that it is in relation to information which is exempt from disclosure, then,",
"notwithstanding anything contained in this Act, access may be provided to",
that part of the record which does not contain any information which is,
exempt from disclosure under this Act and which can reasonably be,
severed from any part that contains exempt information.”,
Section 11 deals with third party information and sub-section (1) thereof is,
extracted below:,
“(1) Where a Central Public Information Officer or a State Public,
"Information Officer, as the case may be, intends to disclose any",
"information or record, or part thereof on a request made under this Act,",
which relates to or has been supplied by a third party and has been treated,
"as confidential by that third party, the Central Public Information Officer",
"or State Public Information Officer, as the case may be, shall, within five",
"days from the receipt of the request, give a written notice to such third",
party of the request and of the fact that the Central Public Information,
"Officer or State Public Information Officer, as the case may be, intends to",
16,
"disclose the information or record, or part thereof, and invite the third",
"party to make a submission in writing or orally, regarding whether the",
"information should be disclosed, and such submission of the third party",
shall be kept in view while taking a decision about disclosure of,
information:,
Provided that except in the case of trade or commercial secrets protected,
"by law, disclosure may be allowed if the public interest in disclosure",
outweighs in importance any possible harm or injury to the interests of,
such third party.”,
"The definitions of information, public authority, record and right to",
"information in clauses (f), (h), (i) and (j) of section 2 of the RTI Act are",
extracted below:,
"“(f) ""information"" means any material in any form, including records,",
"documents, memos, e-mails, opinions, advices, press releases, circulars,",
"orders, logbooks, contracts, reports, papers, samples, models, data material",
held in any electronic form and information relating to any private body,
which can be accessed by a public authority under any other law for the,
time being in force;,
"(h) ""public authority"" means any authority or body or institution of self-",
government established or constituted-,
(a) by or under the Constitution;,
(b) by any other law made by Parliament;,
(c) by any other law made by State Legislature;,
"(d) by notification issued or order made by the appropriate Government,",
and includes any-,
"(i) body owned, controlled or substantially financed;",
"(ii) non-Government organisation substantially financed,",
directly or indirectly by funds provided by the appropriate Government;,
17,
"(i) ""record"" includes-",
"(a) any document, manuscript and file;",
"(b) any microfilm, microfiche and facsimile copy of a document;",
(c) any reproduction of image or images embodied in such microfilm,
(whether enlarged or not); and,
(d) any other material produced by a computer or any other device;,
"(j) ""right to information"" means the right to information accessible under",
this Act which is held by or under the control of any public authority and,
includes the right to-,
"(i) inspection of work, documents, records;",
"(ii) taking notes, extracts or certified copies of documents or records;",
(iii) taking certified samples of material;,
"(iv) obtaining information in the form of diskettes, floppies, tapes,",
video cassettes or in any other electronic mode or through printouts,
where such information is stored in a computer or in any other,
device;,
Section 22 provides for the Act to have overriding effect and is extracted,
below:,
“The provisions of this Act shall have effect notwithstanding anything,
"inconsistent therewith contained in the Official Secrets Act, 1923 (19 of",
"1923), and any other law for the time being in force or in any instrument",
having effect by virtue of any law other than this Act.”,
10. It will also be useful to refer to a few decisions of this Court which,
considered the importance and scope of the right to information. In State of,
"Uttar Pradesh v. Raj Narain - (1975) 4 SCC 428, this Court observed:",
18,
"“In a government of responsibility like ours, where all the agents of the",
"public must be responsible for their conduct, there can but few secrets.",
"The people of this country have a right to know every public act,",
"everything, that is done in a public way, by their public functionaries.",
They are entitled to know the particulars of every public transaction in all,
"its bearing. The right to know, which is derived from the concept of",
"freedom of speech, though not absolute, is a factor which should make one",
"wary, when secrecy is claimed for transactions which can, at any rate,",
have no repercussion on public security.”,
(emphasis supplied),
"In Dinesh Trivedi v. Union of India – (1997) 4 SCC 306, this Court held:",
"“In modern constitutional democracies, it is axiomatic that citizens have a",
"right to know about the affairs of the Government which, having been",
"elected by them, seeks to formulate sound policies of governance aimed at",
"their welfare. However, like all other rights, even this right has recognised",
"limitations; it is, by no means, absolute. ………………Implicit in this",
assertion is the proposition that in transaction which have serious,
"repercussions on public security, secrecy can legitimately be claimed",
because it would then be in the public interest that such matters are not,
publicly disclosed or disseminated.,
To ensure the continued participation of the people in the democratic,
"process, they must be kept informed of the vital decisions taken by the",
"Government and the basis thereof. Democracy, therefore, expects",
openness and openness is a concomitant of a free society. Sunlight is the,
best disinfectant. But it is equally important to be alive to the dangers that,
lie ahead. It is important to realise that undue popular pressure brought to,
bear on decision-makers is Government can have frightening side-effects.,
If every action taken by the political or executive functionary is,
transformed into a public controversy and made subject to an enquiry to,
"soothe popular sentiments, it will undoubtedly have a chilling effect on the",
independence of the decision-maker who may find it safer not to take any,
decision. It will paralyse the entire system and bring it to a grinding halt.,
So we have two conflicting situations almost enigmatic and we think the,
answer is to maintain a fine balance which would serve public interest.”,
"In People’s Union for Civil Liberties v. Union of India - (2004) 2 SCC 476,",
this Court held that right of information is a facet of the freedom of “speech,
19,
and expression” as contained in Article 19(1)(a) of the Constitution of India,
and such a right is subject to any reasonable restriction in the interest of the,
security of the state and subject to exemptions and exceptions.,
Re : Question (i),
11. The definition of ‘information’ in section 2(f) of the RTI Act refers to,
"any material in any form which includes records, documents, opinions,",
papers among several other enumerated items. The term ‘record’ is defined,
"in section 2(i) of the said Act as including any document, manuscript or file",
among others. When a candidate participates in an examination and writes,
his answers in an answer-book and submits it to the examining body for,
"evaluation and declaration of the result, the answer-book is a document or",
record. When the answer-book is evaluated by an examiner appointed by the,
"examining body, the evaluated answer-book becomes a record containing",
the ‘opinion’ of the examiner. Therefore the evaluated answer-book is also,
an ‘information’ under the RTI Act.,
12. Section 3 of RTI Act provides that subject to the provisions of this,
Act all citizens shall have the right to information. The term ‘right to,
information’ is defined in section 2(j) as the right to information accessible,
20,
under the Act which is held by or under the control of any public authority.,
"Having regard to section 3, the citizens have the right to access to all",
information held by or under the control of any public authority except those,
excluded or exempted under the Act. The object of the Act is to empower,
the citizens to fight against corruption and hold the Government and their,
"instrumentalities accountable to the citizens, by providing them access to",
information regarding functioning of every public authority. Certain,
safeguards have been built into the Act so that the revelation of information,
will not conflict with other public interests which include efficient operation,
"of the governments, optimum use of limited fiscal resources and",
preservation of confidential and sensitive information. The RTI Act provides,
access to information held by or under the control of public authorities and,
not in regard to information held by any private person. The Act provides,
the following exclusions by way of exemptions and exceptions (under,
"sections 8, 9 and 24) in regard to information held by public authorities:",
(i) Exclusion of the Act in entirety under section 24 to intelligence and,
security organizations specified in the Second Schedule even though,
"they may be “public authorities”, (except in regard to information",
with reference to allegations of corruption and human rights,
violations).,
21,
(ii) Exemption of the several categories of information enumerated in,
section 8(1) of the Act which no public authority is under an,
"obligation to give to any citizen, notwithstanding anything contained",
"in the Act [however, in regard to the information exempted under",
"clauses (d) and (e), the competent authority, and in regard to the",
"information excluded under clause (j), Central Public Information",
"Officer/State Public Information Officer/the Appellate Authority, may",
"direct disclosure of information, if larger public interest warrants or",
justifies the disclosure].,
(iii) If any request for providing access to information involves an,
"infringement of a copyright subsisting in a person other than the State,",
the Central/State Public Information Officer may reject the request,
under section 9 of RTI Act.,
"Having regard to the scheme of the RTI Act, the right of the citizens to",
"access any information held or under the control of any public authority,",
should be read in harmony with the exclusions/exemptions in the Act.,
"13. The examining bodies (Universities, Examination Boards, CBSC etc.)",
are neither security nor intelligence organisations and therefore the,
exemption under section 24 will not apply to them. The disclosure of,
information with reference to answer-books does not also involve,
infringement of any copyright and therefore section 9 will not apply.,
22,
"Resultantly, unless the examining bodies are able to demonstrate that the",
evaluated answer-books fall under any of the categories of exempted,
"‘information’ enumerated in clauses (a) to (j) of sub-section (1) section 8,",
they will be bound to provide access to the information and any applicant,
"can either inspect the document/record, take notes, extracts or obtain",
certified copies thereof.,
14. The examining bodies contend that the evaluated answer-books are,
"exempted from disclosure under section 8(1)(e) of the RTI Act, as they are",
‘information’ held in its fiduciary relationship. They fairly conceded that,
evaluated answer-books will not fall under any other exemptions in sub-,
section (1) of section 8. Every examinee will have the right to access his,
"evaluated answer-books, by either inspecting them or take certified copies",
"thereof, unless the evaluated answer-books are found to be exempted under",
section 8(1)(e) of the RTI Act.,
Re : Question (ii),
"15. In Maharashtra State Board, this Court was considering whether",
denial of re-evaluation of answer-books or denial of disclosure by way of,
"inspection of answer books, to an examinee, under Rule 104(1) and (3) of",
23,
"the Maharashtra Secondary and Higher Secondary Board Rules, 1977 was",
violative of principles of natural justice and violative of Articles 14 and 19,
of the Constitution of India. Rule 104(1) provided that no re-evaluation of,
the answer books shall be done and on an application of any candidate,
verification will be restricted to checking whether all the answers have been,
examined and that there is no mistake in the totalling of marks for each,
question in that subject and transferring marks correctly on the first cover,
page of the answer book. Rule 104(3) provided that no candidate shall claim,
or be entitled to re-evaluation of his answer-books or inspection of answer-,
books as they were treated as confidential. This Court while upholding the,
validity of Rule 104(3) held as under :,
“…. the “process of evaluation of answer papers or of subsequent,
verification of marks” under Clause (3) of Regulation 104 does not attract,
the principles of natural justice since no decision making process which,
brings about adverse civil consequences to the examinees in involved. The,
principles of natural justice cannot be extended beyond reasonable and,
rational limits and cannot be carried to such absurd lengths as to make it,
necessary that candidates who have taken a public examination should be,
allowed to participate in the process of evaluation of their performances or,
to verify the correctness of the evaluation made by the examiners by,
themselves conducting an inspection of the answer-books and determining,
whether there has been a proper and fair valuation of the answers by the,
"examiners.""",
So long as the body entrusted with the task of framing the rules or,
"regulations acts within the scope of the authority conferred on it, in the",
sense that the rules or regulations made by it have a rational nexus with,
"the object and purpose of the statute, the court should not concern itself",
with the wisdom or efficaciousness of such rules or regulations…. The,
Legislature and its delegate are the sole repositories of the power to decide,
what policy should be pursued in relation to matters covered by the Act …,
24,
and there is no scope for interference by the Court unless the particular,
provision impugned before it can be said to suffer from any legal,
"infirmity, in the sense of its being wholly beyond the scope of the",
regulation making power or its being inconsistent with any of the,
provisions of the parent enactment or in violation of any of the limitations,
imposed by the Constitution.,
"It was perfectly within the competence of the Board, rather it was its plain",
"duty, to apply its mind and decide as a matter of policy relating to the",
conduct of the examination as to whether disclosure and inspection of the,
"answer books should be allowed to the candidates, whether and to what",
extent verification of the result should be permitted after the results have,
already been announced and whether any right to claim revaluation of the,
answer books should be recognised or provided for. All these are,
undoubtedly matters which have an intimate nexus with the objects and,
"purposes of the enactment and are, therefore, with in the ambit of the",
general power to make regulations….”,
This Court held that Regulation 104(3) cannot be held to be unreasonable,
"merely because in certain stray instances, errors or irregularities had gone",
unnoticed even after verification of the concerned answer books according,
to the existing procedure and it was only after further scrutiny made either,
on orders of the court or in the wake of contentions raised in the petitions,
"filed before a court, that such errors or irregularities were ultimately",
discovered. This court reiterated the view that “the test of reasonableness is,
not applied in vacuum but in the context of life’s realities” and concluded,
"that realistically and practically, providing all the candidates inspection of",
their answer books or re-evaluation of the answer books in the presence of,
the candidates would not be feasible. Dealing with the contention that every,
25,
student is entitled to fair play in examination and receive marks matching his,
"performance, this court held :",
“What constitutes fair play depends upon the facts and circumstances,
relating to each particular given situation. If it is found that every possible,
precaution has been taken and all necessary safeguards provided to ensure,
that the answer books inclusive of supplements are kept in safe custody so,
as to eliminate the danger of their being tampered with and that the,
evaluation is done by the examiners applying uniform standards with,
checks and crosschecks at different stages and that measures for detection,
"of malpractice, etc. have also been effectively adopted, in such cases it",
"will not be correct on the part of the Courts to strike down, the provision",
prohibiting revaluation on the ground that it violates the rules of fair play.,
It appears that the procedure evolved by the Board for ensuring fairness,
and accuracy in evaluation of the answer books has made the system as,
fool proof as can be possible and is entirely satisfactory. The Board is a,
very responsible body. The candidates have taken the examination with,
full awareness of the provisions contained in the Regulations and in the,
declaration made in the form of application for admission to the,
examination they have solemnly stated that they fully agree to abide by the,
"regulations issued by the Board. In the circumstances, when we find that",
"all safeguards against errors and malpractices have been provided for,",
there cannot be said to be any denial of fair play to the examinees by,
reason of the prohibition against asking for revaluation…. “,
This Court concluded that if inspection and verification in the presence of,
"the candidates, or revaluation, have to be allowed as of right, it may lead to",
"gross and indefinite uncertainty, particularly in regard to the relative ranking",
"etc. of the candidate, besides leading to utter confusion on account of the",
enormity of the labour and time involved in the process. This court,
concluded :,
26,
“… the Court should be extremely reluctant to substitute its own views as,
"to what is wise, prudent and proper in relation to academic matters in",
preference to those formulated by professional men possessing technical,
expertise and rich experience of actual day-to-day working of educational,
institutions and the departments controlling them. It will be wholly wrong,
for the court to make a pedantic and purely idealistic approach to the,
"problems of this nature, isolated from the actual realities and grass root",
problems involved in the working of the system and unmindful of the,
consequences which would emanate if a purely idealistic view as opposed,
to a pragmatic one were to be propounded.”,
16. The above principles laid down in Maharashtra State Board have,
"been followed and reiterated in several decisions of this Court, some of",
which are referred to in para (6) above. But the principles laid down in,
decisions such as Maharashtra State Board depend upon the provisions of,
the rules and regulations of the examining body. If the rules and regulations,
"of the examining body provide for re-evaluation, inspection or disclosure of",
"the answer-books, then none of the principles in Maharashtra State Board or",
"other decisions following it, will apply or be relevant. There has been a",
gradual change in trend with several examining bodies permitting inspection,
and disclosure of the answer-books.,
17. It is thus now well settled that a provision barring inspection or,
disclosure of the answer-books or re-evaluation of the answer-books and,
restricting the remedy of the candidates only to re-totalling is valid and,
"binding on the examinee. In the case of CBSE, the provisions barring re-",
27,
"evaluation and inspection contained in Bye-law No.61, are akin to Rule 104",
considered in Maharashtra State Board. As a consequence if an examination,
is governed only by the rules and regulations of the examining body which,
"bar inspection, disclosure or re-evaluation, the examinee will be entitled",
only for re-totalling by checking whether all the answers have been,
evaluated and further checking whether there is no mistake in totaling of,
marks for each question and marks have been transferred correctly to the,
"title (abstract) page. The position may however be different, if there is a",
"superior statutory right entitling the examinee, as a citizen to seek access to",
"the answer books, as information.",
"18. In these cases, the High Court has rightly denied the prayer for re-",
evaluation of answer-books sought by the candidates in view of the bar,
contained in the rules and regulations of the examining bodies. It is also not,
a relief available under the RTI Act. Therefore the question whether re-,
"evaluation should be permitted or not, does not arise for our consideration.",
What arises for consideration is the question whether the examinee is,
entitled to inspect his evaluated answer-books or take certified copies,
"thereof. This right is claimed by the students, not with reference to the rules",
"or bye-laws of examining bodies, but under the RTI Act which enables them",
28,
and entitles them to have access to the answer-books as ‘information’ and,
inspect them and take certified copies thereof. Section 22 of RTI Act,
"provides that the provisions of the said Act will have effect, notwithstanding",
anything inconsistent therewith contained in any other law for the time being,
in force. Therefore the provisions of the RTI Act will prevail over the,
provisions of the bye-laws/rules of the examining bodies in regard to,
"examinations. As a result, unless the examining body is able to demonstrate",
that the answer-books fall under the exempted category of information,
"described in clause (e) of section 8(1) of RTI Act, the examining body will",
be bound to provide access to an examinee to inspect and take copies of his,
"evaluated answer-books, even if such inspection or taking copies is barred",
under the rules/bye-laws of the examining body governing the examinations.,
"Therefore, the decision of this Court in Maharashtra State Board (supra)",
"and the subsequent decisions following the same, will not affect or interfere",
with the right of the examinee seeking inspection of answer-books or taking,
certified copies thereof.,
Re : Question (iii),
19. Section 8(1) enumerates the categories of information which are,
exempted from disclosure under the provisions of the RTI Act. The,
29,
examining bodies rely upon clause (e) of section 8(1) which provides that,
"there shall be no obligation on any public authority to give any citizen,",
information available to it in its fiduciary relationship. This exemption is,
subject to the condition that if the competent authority (as defined in section,
2(e) of RTI Act) is satisfied that the larger public interest warrants the,
"disclosure of such information, the information will have to be disclosed.",
Therefore the question is whether the examining body holds the evaluated,
answer-books in its fiduciary relationship.,
20. The term ‘fiduciary’ and ‘fiduciary relationship’ refer to different,
"capacities and relationship, involving a common duty or obligation.",
"20.1) Black’s Law Dictionary (7th Edition, Page 640) defines ‘fiduciary",
relationship’ thus:,
“A relationship in which one person is under a duty to act for the benefit,
of the other on matters within the scope of the relationship. Fiduciary,
"relationships – such as trustee-beneficiary, guardian-ward, agent-principal,",
and attorney-client – require the highest duty of care. Fiduciary,
relationships usually arise in one of four situations : (1) when one person,
"places trust in the faithful integrity of another, who as a result gains",
"superiority or influence over the first, (2) when one person assumes",
"control and responsibility over another, (3) when one person has a duty to",
act for or give advice to another on matters falling within the scope of the,
"relationship, or (4) when there is a specific relationship that has",
"traditionally been recognized as involving fiduciary duties, as with a",
lawyer and a client or a stockbroker and a customer.”,
30,
20.2) The American Restatements (Trusts and Agency) define ‘fiduciary’ as,
one whose intention is to act for the benefit of another as to matters relevant,
to the relation between them. The Corpus Juris Secundum (Vol. 36A page,
381) attempts to define fiduciary thus :,
“A general definition of the word which is sufficiently comprehensive to,
"embrace all cases cannot well be given. The term is derived from the civil,",
"or Roman, law. It connotes the idea of trust or confidence, contemplates",
"good faith, rather than legal obligation, as the basis of the transaction,",
"refers to the integrity, the fidelity, of the party trusted, rather than his",
"credit or ability, and has been held to apply to all persons who occupy a",
"position of peculiar confidence toward others, and to include those",
informal relations which exist whenever one party trusts and relies on,
"another, as well as technical fiduciary relations.",
"The word ‘fiduciary,’ as a noun, means one who holds a thing in trust for",
"another, a trustee, a person holding the character of a trustee, or a",
"character analogous to that of a trustee, with respect to the trust and",
confidence involved in it and the scrupulous good faith and candor which,
"it requires; a person having the duty, created by his undertaking, to act",
primarily for another’s benefit in matters connected with such,
"undertaking. Also more specifically, in a statute, a guardian, trustee,",
"executor, administrator, receiver, conservator, or any person acting in any",
"fiduciary capacity for any person, trust, or estate. Some examples of what,",
"in particular connections, the term has been held to include and not to",
include are set out in the note.”,
"20.3) Words and Phrases, Permanent Edition (Vol. 16A, Page 41) defines",
‘fiducial relation’ thus :,
“There is a technical distinction between a ‘fiducial relation’ which is,
"more correctly applicable to legal relationships between parties, such as",
"guardian and ward, administrator and heirs, and other similar",
"relationships, and ‘confidential relation’ which includes the legal",
"relationships, and also every other relationship wherein confidence is",
rightly reposed and is exercised.,
"Generally, the term ‘fiduciary’ applies to any person who occupies a",
position of peculiar confidence towards another. It refers to integrity and,
31,
"fidelity. It contemplates fair dealing and good faith, rather than legal",
"obligation, as the basis of the transaction. The term includes those",
informal relations which exist whenever one party trusts and relies upon,
"another, as well as technical fiduciary relations.”",
20.4) In Bristol and West Building Society vs. Mothew [1998 Ch. 1] the term,
fiduciary was defined thus :,
“A fiduciary is someone who has undertaken to act for and on behalf of,
another in a particular matter in circumstances which give rise to a,
relationship of trust and confidence. The distinguishing obligation of a,
fiduciary is the obligation of loyalty….. A fiduciary must act in good faith;,
he must not make a profit out of his trust; he must not place himself in a,
position where his duty and his interest may conflict; he may not act for,
his own benefit or the benefit of a third person without the informed,
consent of his principal.”,
"20.5) In Wolf vs. Superior Court [2003 (107) California Appeals, 4th 25] the",
California Court of Appeals defined fiduciary relationship as under :,
“any relationship existing between the parties to the transaction where one,
of the parties is duty bound to act with utmost good faith for the benefit of,
the other party. Such a relationship ordinarily arises where confidence is,
"reposed by one person in the integrity of another, and in such a relation the",
"party in whom the confidence is reposed, if he voluntarily accepts or",
"assumes to accept the confidence, can take no advantage from his acts",
relating to the interests of the other party without the latter’s knowledge,
and consent.”,
21. The term ‘fiduciary’ refers to a person having a duty to act for the,
"benefit of another, showing good faith and condour, where such other person",
reposes trust and special confidence in the person owing or discharging the,
duty. The term ‘fiduciary relationship’ is used to describe a situation or,
32,
transaction where one person (beneficiary) places complete confidence in,
"another person (fiduciary) in regard to his affairs, business or transaction/s.",
The term also refers to a person who holds a thing in trust for another,
(beneficiary). The fiduciary is expected to act in confidence and for the,
"benefit and advantage of the beneficiary, and use good faith and fairness in",
dealing with the beneficiary or the things belonging to the beneficiary. If the,
"beneficiary has entrusted anything to the fiduciary, to hold the thing in trust",
"or to execute certain acts in regard to or with reference to the entrusted thing,",
the fiduciary has to act in confidence and expected not to disclose the thing,
or information to any third party. There are also certain relationships where,
both the parties have to act in a fiduciary capacity treating the other as the,
beneficiary. Examples of these are : a partner vis-à-vis another partner and,
an employer vis-à-vis employee. An employee who comes into possession,
of business or trade secrets or confidential information relating to the,
"employer in the course of his employment, is expected to act as a fiduciary",
"and cannot disclose it to others. Similarly, if on the request of the employer",
"or official superior or the head of a department, an employee furnishes his",
"personal details and information, to be retained in confidence, the employer,",
the official superior or departmental head is expected to hold such personal,
"information in confidence as a fiduciary, to be made use of or disclosed only",
33,
if the employee’s conduct or acts are found to be prejudicial to the employer.,
"22. In a philosophical and very wide sense, examining bodies can be said",
"to act in a fiduciary capacity, with reference to students who participate in an",
"examination, as a government does while governing its citizens or as the",
present generation does with reference to the future generation while,
preserving the environment. But the words ‘information available to a,
person in his fiduciary relationship’ are used in section 8(1)(e) of RTI Act in,
"its normal and well recognized sense, that is to refer to persons who act in a",
"fiduciary capacity, with reference to a specific beneficiary or beneficiaries",
who are to be expected to be protected or benefited by the actions of the,
"fiduciary – a trustee with reference to the beneficiary of the trust, a guardian",
"with reference to a minor/physically/infirm/mentally challenged, a parent",
"with reference to a child, a lawyer or a chartered accountant with reference",
"to a client, a doctor or nurse with reference to a patient, an agent with",
"reference to a principal, a partner with reference to another partner, a",
"director of a company with reference to a share-holder, an executor with",
"reference to a legatee, a receiver with reference to the parties to a lis, an",
employer with reference to the confidential information relating to the,
"employee, and an employee with reference to business dealings/transaction",
of the employer. We do not find that kind of fiduciary relationship between,
34,
"the examining body and the examinee, with reference to the evaluated",
"answer-books, that come into the custody of the examining body.",
23. The duty of examining bodies is to subject the candidates who have,
completed a course of study or a period of training in accordance with its,
"curricula, to a process of verification/examination/testing of their",
"knowledge, ability or skill, or to ascertain whether they can be said to have",
successfully completed or passed the course of study or training. Other,
specialized Examining Bodies may simply subject candidates to a process of,
"verification by an examination, to find out whether such person is suitable",
"for a particular post, job or assignment. An examining body, if it is a public",
"authority entrusted with public functions, is required to act fairly,",
"reasonably, uniformly and consistently for public good and in public",
interest. This Court has explained the role of an examining body in regard to,
the process of holding examination in the context of examining whether it,
"amounts to ‘service’ to a consumer, in Bihar School Examination Board vs.",
"Suresh Prasad Sinha – (2009) 8 SCC 483, in the following manner:",
"“The process of holding examinations, evaluating answer scripts,",
declaring results and issuing certificates are different stages of a single,
statutory non-commercial function. It is not possible to divide this,
function as partly statutory and partly administrative. When the,
Examination Board conducts an examination in discharge of its statutory,
"function, it does not offer its ""services"" to any candidate. Nor does a",
35,
"student who participates in the examination conducted by the Board, hires",
or avails of any service from the Board for a consideration. On the other,
"hand, a candidate who participates in the examination conducted by the",
"Board, is a person who has undergone a course of study and who requests",
the Board to test him as to whether he has imbibed sufficient knowledge to,
be fit to be declared as having successfully completed the said course of,
"education; and if so, determine his position or rank or competence vis-a-",
vis other examinees. The process is not therefore availment of a service by,
"a student, but participation in a general examination conducted by the",
Board to ascertain whether he is eligible and fit to be considered as having,
successfully completed the secondary education course. The examination,
fee paid by the student is not the consideration for availment of any,
"service, but the charge paid for the privilege of participation in the",
examination.……… The fact that in the course of conduct of the,
"examination, or evaluation of answer-scripts, or furnishing of mark-books",
"or certificates, there may be some negligence, omission or deficiency,",
"does not convert the Board into a service-provider for a consideration, nor",
convert the examinee into a consumer ………”,
It cannot therefore be said that the examining body is in a fiduciary,
relationship either with reference to the examinee who participates in the,
examination and whose answer-books are evaluated by the examining body.,
24. We may next consider whether an examining body would be entitled,
"to claim exemption under section 8(1)(e) of the RTI Act, even assuming that",
it is in a fiduciary relationship with the examinee. That section provides that,
"notwithstanding anything contained in the Act, there shall be no obligation",
to give any citizen information available to a person in his fiduciary,
"relationship. This would only mean that even if the relationship is fiduciary,",
the exemption would operate in regard to giving access to the information,
36,
"held in fiduciary relationship, to third parties. There is no question of the",
"fiduciary withholding information relating to the beneficiary, from the",
beneficiary himself. One of the duties of the fiduciary is to make thorough,
disclosure of all relevant facts of all transactions between them to the,
"beneficiary, in a fiduciary relationship. By that logic, the examining body, if",
"it is in a fiduciary relationship with an examinee, will be liable to make a full",
disclosure of the evaluated answer-books to the examinee and at the same,
"time, owe a duty to the examinee not to disclose the answer-books to anyone",
"else. If A entrusts a document or an article to B to be processed, on",
"completion of processing, B is not expected to give the document or article",
to anyone else but is bound to give the same to A who entrusted the,
"document or article to B for processing. Therefore, if a relationship of",
fiduciary and beneficiary is assumed between the examining body and the,
"examinee with reference to the answer-book, section 8(1)(e) would operate",
as an exemption to prevent access to any third party and will not operate as a,
"bar for the very person who wrote the answer-book, seeking inspection or",
disclosure of it.,
25. An evaluated answer book of an examinee is a combination of two,
different ‘informations’. The first is the answers written by the examinee and,
37,
second is the marks/assessment by the examiner. When an examinee seeks,
inspection of his evaluated answer-books or seeks a certified copy of the,
"evaluated answer-book, the information sought by him is not really the",
"answers he has written in the answer-books (which he already knows), nor",
the total marks assigned for the answers (which has been declared). What he,
"really seeks is the information relating to the break-up of marks, that is, the",
specific marks assigned to each of his answers. When an examinee seeks,
"‘information’ by inspection/certified copies of his answer-books, he knows",
the contents thereof being the author thereof. When an examinee is,
"permitted to examine an answer-book or obtain a certified copy, the",
examining body is not really giving him some information which is held by,
"it in trust or confidence, but is only giving him an opportunity to read what",
he had written at the time of examination or to have a copy of his answers.,
"Therefore, in furnishing the copy of an answer-book, there is no question of",
"breach of confidentiality, privacy, secrecy or trust. The real issue therefore is",
not in regard to the answer-book but in regard to the marks awarded on,
evaluation of the answer-book. Even here the total marks given to the,
examinee in regard to his answer-book are already declared and known to,
the examinee. What the examinee actually wants to know is the break-up of,
"marks given to him, that is how many marks were given by the examiner to",
38,
each of his answers so that he can assess how is performance has been,
evaluated and whether the evaluation is proper as per his hopes and,
"expectations. Therefore, the test for finding out whether the information is",
"exempted or not, is not in regard to the answer book but in regard to the",
evaluation by the examiner.,
26. This takes us to the crucial issue of evaluation by the examiner. The,
examining body engages or employs hundreds of examiners to do the,
evaluation of thousands of answer books. The question is whether the,
information relating to the ‘evaluation’ (that is assigning of marks) is held,
by the examining body in a fiduciary relationship. The examining bodies,
contend that even if fiduciary relationship does not exist with reference to,
"the examinee, it exists with reference to the examiner who evaluates the",
answer-books. On a careful examination we find that this contention has no,
merit. The examining body entrusts the answer-books to an examiner for,
evaluation and pays the examiner for his expert service. The work of,
evaluation and marking the answer-book is an assignment given by the,
examining body to the examiner which he discharges for a consideration.,
"Sometimes, an examiner may assess answer-books, in the course of his",
"employment, as a part of his duties without any specific or special",
39,
remuneration. In other words the examining body is the ‘principal’ and the,
"examiner is the agent entrusted with the work, that is, evaluation of answer-",
"books. Therefore, the examining body is not in the position of a fiduciary",
"with reference to the examiner. On the other hand, when an answer-book is",
"entrusted to the examiner for the purpose of evaluation, for the period the",
answer-book is in his custody and to the extent of the discharge of his,
"functions relating to evaluation, the examiner is in the position of a fiduciary",
with reference to the examining body and he is barred from disclosing the,
contents of the answer-book or the result of evaluation of the answer-book to,
anyone other than the examining body. Once the examiner has evaluated the,
"answer books, he ceases to have any interest in the evaluation done by him.",
"He does not have any copy-right or proprietary right, or confidentiality right",
in regard to the evaluation. Therefore it cannot be said that the examining,
"body holds the evaluated answer books in a fiduciary relationship, qua the",
examiner.,
"27. We, therefore, hold that an examining body does not hold the",
evaluated answer-books in a fiduciary relationship. Not being information,
"available to an examining body in its fiduciary relationship, the exemption",
under section 8(1)(e) is not available to the examining bodies with reference,
to evaluated answer-books. As no other exemption under section 8 is,
40,
"available in respect of evaluated answer books, the examining bodies will",
have to permit inspection sought by the examinees.,
Re : Question (iv),
28. When an examining body engages the services of an examiner to,
"evaluate the answer-books, the examining body expects the examiner not to",
disclose the information regarding evaluation to anyone other than the,
examining body. Similarly the examiner also expects that his name and,
particulars would not be disclosed to the candidates whose answer-books are,
"evaluated by him. In the event of such information being made known, a",
disgruntled examinee who is not satisfied with the evaluation of the answer,
"books, may act to the prejudice of the examiner by attempting to endanger",
"his physical safety. Further, any apprehension on the part of the examiner",
"that there may be danger to his physical safety, if his identity becomes",
"known to the examinees, may come in the way of effective discharge of his",
"duties. The above applies not only to the examiner, but also to the",
"scrutiniser, co-ordinator, and head-examiner who deal with the answer book.",
The answer book usually contains not only the signature and code number of,
"the examiner, but also the signatures and code number of the scrutiniser/co-",
ordinator/head examiner. The information as to the names or particulars of,
the examiners/co-ordinators/scrutinisers/head examiners are therefore,
41,
"exempted from disclosure under section 8(1)(g) of RTI Act, on the ground",
"that if such information is disclosed, it may endanger their physical safety.",
"Therefore, if the examinees are to be given access to evaluated answer-",
"books either by permitting inspection or by granting certified copies, such",
access will have to be given only to that part of the answer-book which does,
not contain any information or signature of the examiners/co-,
"ordinators/scrutinisers/head examiners, exempted from disclosure under",
section 8(1)(g) of RTI Act. Those portions of the answer-books which,
contain information regarding the examiners/co-ordinators/scrutinisers/head,
examiners or which may disclose their identity with reference to signature or,
"initials, shall have to be removed, covered, or otherwise severed from the",
"non-exempted part of the answer-books, under section 10 of RTI Act.",
29. The right to access information does not extend beyond the period,
during which the examining body is expected to retain the answer-books. In,
"the case of CBSE, the answer-books are required to be maintained for a",
period of three months and thereafter they are liable to be disposed,
of/destroyed. Some other examining bodies are required to keep the answer-,
books for a period of six months. The fact that right to information is,
available in regard to answer-books does not mean that answer-books will,
have to be maintained for any longer period than required under the rules,
42,
and regulations of the public authority. The obligation under the RTI Act is,
to make available or give access to existing information or information,
which is expected to be preserved or maintained. If the rules and regulations,
governing the functioning of the respective public authority require,
"preservation of the information for only a limited period, the applicant for",
information will be entitled to such information only if he seeks the,
"information when it is available with the public authority. For example, with",
"reference to answer-books, if an examinee makes an application to CBSE for",
inspection or grant of certified copies beyond three months (or six months or,
such other period prescribed for preservation of the records in regard to,
"other examining bodies) from the date of declaration of results, the",
application could be rejected on the ground that such information is not,
available. The power of the Information Commission under section 19(8) of,
the RTI Act to require a public authority to take any such steps as may be,
"necessary to secure compliance with the provision of the Act, does not",
"include a power to direct the public authority to preserve the information, for",
any period larger than what is provided under the rules and regulations of the,
public authority.,
"30. On behalf of the respondents/examinees, it was contended that having",
"regard to sub-section (3) of section 8 of RTI Act, there is an implied duty on",
43,
the part of every public authority to maintain the information for a minimum,
period of twenty years and make it available whenever an application was,
made in that behalf. This contention is based on a complete misreading and,
misunderstanding of section 8(3). The said sub-section nowhere provides,
that records or information have to be maintained for a period of twenty,
years. The period for which any particular records or information has to be,
maintained would depend upon the relevant statutory rule or regulation of,
the public authority relating to the preservation of records. Section 8(3),
"provides that information relating to any occurrence, event or matters which",
has taken place and occurred or happened twenty years before the date on,
"which any request is made under section 6, shall be provided to any person",
making a request. This means that where any information required to be,
maintained and preserved for a period beyond twenty years under the rules,
"of the public authority, is exempted from disclosure under any of the",
"provisions of section 8(1) of RTI Act, then, notwithstanding such",
"exemption, access to such information shall have to be provided by",
"disclosure thereof, after a period of twenty years except where they relate to",
"information falling under clauses (a), (c) and (i) of section 8(1). In other",
"words, section 8(3) provides that any protection against disclosure that may",
"be available, under clauses (b), (d) to (h) and (j) of section 8(1) will cease to",
44,
be available after twenty years in regard to records which are required to be,
preserved for more than twenty years. Where any record or information is,
required to be destroyed under the rules and regulations of a public authority,
"prior to twenty years, section 8(3) will not prevent destruction in accordance",
with the Rules. Section 8(3) of RTI Act is not therefore a provision requiring,
"all ‘information’ to be preserved and maintained for twenty years or more,",
nor does it override any rules or regulations governing the period for which,
"the record, document or information is required to be preserved by any",
public authority.,
31. The effect of the provisions and scheme of the RTI Act is to divide,
‘information’ into the three categories. They are :,
(i) Information which promotes transparency and accountability in,
"the working of every public authority, disclosure of which may",
also help in containing or discouraging corruption (enumerated in,
clauses (b) and (c) of section 4(1) of RTI Act).,
(ii) Other information held by public authority (that is all information,
other than those falling under clauses (b) and (c) of section 4(1) of,
RTI Act).,
(iii) Information which is not held by or under the control of any,
public authority and which cannot be accessed by a public,
authority under any law for the time being in force.,
Information under the third category does not fall within the scope of RTI,
"Act. Section 3 of RTI Act gives every citizen, the right to ‘information’ held",
45,
"by or under the control of a public authority, which falls either under the first",
or second category. In regard to the information falling under the first,
"category, there is also a special responsibility upon public authorities to suo",
moto publish and disseminate such information so that they will be easily,
and readily accessible to the public without any need to access them by,
having recourse to section 6 of RTI Act. There is no such obligation to,
publish and disseminate the other information which falls under the second,
category.,
"32. The information falling under the first category, enumerated in",
sections 4(1)(b) & (c) of RTI Act are extracted below :,
“4. Obligations of public authorities.-(1) Every public authority shall--,
(a) xxxxxx,
(b) publish within one,
"hundred and twenty days from the enactment of this Act,--",
"(i) the particulars of its organisation, functions and duties;",
(ii) the powers and duties of its officers and employees;,
(iii) the procedure followed in the decision making,
"process, including channels of supervision and",
accountability;,
(iv) the norms set by it for the discharge of its functions;,
"(v) the rules, regulations, instructions, manuals and records,",
held by it or under its control or used by its employees for,
discharging its functions;,
(vi) a statement of the categories of documents that are held,
by it or under its control;,
46,
(vii) the particulars of any arrangement that exists for,
"consultation with, or representation by, the members of the",
public in relation to the formulation of its policy or,
implementation thereof;,
"(viii) a statement of the boards, councils, committees and",
other bodies consisting of two or more persons constituted,
"as its part or for the purpose of its advice, and as to whether",
"meetings of those boards, councils, committees and other",
"bodies are open to the public, or the minutes of such",
meetings are accessible for public;,
(ix) a directory of its officers and employees;,
(x) the monthly remuneration received by each of its,
"officers and employees, including the system of",
compensation as provided in its regulations;,
"(xi) the budget allocated to each of its agency, indicating",
"the particulars of all plans, proposed expenditures and",
reports on disbursements made;,
"(xii) the manner of execution of subsidy programmes,",
including the amounts allocated and the details of,
beneficiaries of such programmes;,
"(xiii) particulars of recipients of concessions, permits or",
authorisations granted by it;,
"(xiv) details in respect of the information, available to or",
"held by it, reduced in an electronic form;",
(xv) the particulars of facilities available to citizens for,
"obtaining information, including the working hours of a",
"library or reading room, if maintained for public use;",
"(xvi) the names, designations and other particulars of the",
Public Information Officers;,
(xvii) such other information as may be prescribed; and,
thereafter update these publications every year;,
(c) publish all relevant facts,
while formulating important policies or announcing the decisions,
which affect public;,
(emphasis supplied),
47,
"Sub-sections (2), (3) and (4) of section 4 relating to dissemination of",
information enumerated in sections 4(1)(b) & (c) are extracted below:,
“(2) It shall be a constant endeavour of every public,
authority to take steps in accordance with the requirements of clause (b) of,
sub-section (1) to provide as much information suo motu to the public,
"at regular intervals through various means of communications,",
"including internet, so that the public have minimum resort to the use",
of this Act to obtain information.,
"(3) For the purposes of sub-section (1), every",
information shall be disseminated widely and in such form and,
manner which is easily accessible to the public.,
(4) All materials shall be disseminated taking into,
"consideration the cost effectiveness, local language and the most effective",
method of communication in that local area and the information should be,
"easily accessible, to the extent possible in electronic format with the",
"Central Public Information Officer or State Public Information Officer, as",
"the case may be, available free or at such cost of the medium or the print",
cost price as may be prescribed.,
"Explanation.--For the purposes of sub-sections (3) and (4), ""disseminated""",
means making known or communicated the information to the public,
"through notice boards, newspapers, public announcements, media",
"broadcasts, the internet or any other means, including inspection of offices",
of any public authority.”,
(emphasis supplied),
33. Some High Courts have held that section 8 of RTI Act is in the nature,
of an exception to section 3 which empowers the citizens with the right to,
"information, which is a derivative from the freedom of speech; and that",
"therefore section 8 should be construed strictly, literally and narrowly. This",
may not be the correct approach. The Act seeks to bring about a balance,
"between two conflicting interests, as harmony between them is essential for",
preserving democracy. One is to bring about transparency and accountability,
by providing access to information under the control of public authorities.,
48,
"The other is to ensure that the revelation of information, in actual practice,",
does not conflict with other public interests which include efficient operation,
"of the governments, optimum use of limited fiscal resources and",
preservation of confidentiality of sensitive information. The preamble to the,
Act specifically states that the object of the Act is to harmonise these two,
conflicting interests. While sections 3 and 4 seek to achieve the first,
"objective, sections 8, 9, 10 and 11 seek to achieve the second objective.",
"Therefore when section 8 exempts certain information from being disclosed,",
"it should not be considered to be a fetter on the right to information, but as",
an equally important provision protecting other public interests essential for,
the fulfilment and preservation of democratic ideals.,
34. When trying to ensure that the right to information does not conflict,
with several other public interests (which includes efficient operations of the,
"governments, preservation of confidentiality of sensitive information,",
"optimum use of limited fiscal resources, etc.), it is difficult to visualise and",
enumerate all types of information which require to be exempted from,
disclosure in public interest. The legislature has however made an attempt to,
do so. The enumeration of exemptions is more exhaustive than the,
enumeration of exemptions attempted in the earlier Act that is section 8 of,
"Freedom to Information Act, 2002. The Courts and Information",
49,
Commissions enforcing the provisions of RTI Act have to adopt a purposive,
"construction, involving a reasonable and balanced approach which",
"harmonises the two objects of the Act, while interpreting section 8 and the",
other provisions of the Act.,
"35. At this juncture, it is necessary to clear some misconceptions about",
the RTI Act. The RTI Act provides access to all information that is,
available and existing. This is clear from a combined reading of section 3,
and the definitions of ‘information’ and ‘right to information’ under clauses,
(f) and (j) of section 2 of the Act. If a public authority has any information in,
"the form of data or analysed data, or abstracts, or statistics, an applicant may",
"access such information, subject to the exemptions in section 8 of the Act.",
But where the information sought is not a part of the record of a public,
"authority, and where such information is not required to be maintained under",
"any law or the rules or regulations of the public authority, the Act does not",
"cast an obligation upon the public authority, to collect or collate such non-",
available information and then furnish it to an applicant. A public authority,
is also not required to furnish information which require drawing of,
inferences and/or making of assumptions. It is also not required to provide,
"‘advice’ or ‘opinion’ to an applicant, nor required to obtain and furnish any",
‘opinion’ or ‘advice’ to an applicant. The reference to ‘opinion’ or ‘advice’,
50,
"in the definition of ‘information’ in section 2(f) of the Act, only refers to",
such material available in the records of the public authority. Many public,
"authorities have, as a public relation exercise, provide advice, guidance and",
opinion to the citizens. But that is purely voluntary and should not be,
confused with any obligation under the RTI Act.,
36. Section 19(8) of RTI Act has entrusted the Central/State Information,
"Commissions, with the power to require any public authority to take any",
such steps as may be necessary to secure the compliance with the provisions,
"of the Act. Apart from the generality of the said power, clause (a) of section",
"19(8) refers to six specific powers, to implement the provision of the Act.",
Sub-clause (i) empowers a Commission to require the public authority to,
provide access to information if so requested in a particular ‘form’ (that is,
"either as a document, micro film, compact disc, pendrive, etc.). This is to",
secure compliance with section 7(9) of the Act. Sub-clause (ii) empowers a,
Commission to require the public authority to appoint a Central Public,
Information Officer or State Public Information Officer. This is to secure,
compliance with section 5 of the Act. Sub-clause (iii) empowers the,
Commission to require a public authority to publish certain information or,
categories of information. This is to secure compliance with section 4(1) and,
(2) of RTI Act. Sub-clause (iv) empowers a Commission to require a public,
51,
authority to make necessary changes to its practices relating to the,
"maintenance, management and destruction of the records. This is to secure",
compliance with clause (a) of section 4(1) of the Act. Sub-clause (v),
empowers a Commission to require the public authority to increase the,
training for its officials on the right to information. This is to secure,
"compliance with sections 5, 6 and 7 of the Act. Sub-clause (vi) empowers a",
Commission to require the public authority to provide annual reports in,
regard to the compliance with clause (b) of section 4(1). This is to ensure,
compliance with the provisions of clause (b) of section 4(1) of the Act. The,
power under section 19(8) of the Act however does not extend to requiring a,
public authority to take any steps which are not required or contemplated to,
secure compliance with the provisions of the Act or to issue directions,
beyond the provisions of the Act. The power under section 19(8) of the Act,
is intended to be used by the Commissions to ensure compliance with the,
"Act, in particular ensure that every public authority maintains its records",
duly catalogued and indexed in the manner and in the form which facilitates,
"the right to information and ensure that the records are computerized, as",
required under clause (a) of section 4(1) of the Act; and to ensure that the,
information enumerated in clauses (b) and (c) of sections 4(1) of the Act are,
"published and disseminated, and are periodically updated as provided in sub-",
52,
sections (3) and (4) of section 4 of the Act. If the ‘information’ enumerated,
in clause (b) of section 4(1) of the Act are effectively disseminated (by,
"publications in print and on websites and other effective means), apart from",
"providing transparency and accountability, citizens will be able to access",
relevant information and avoid unnecessary applications for information,
under the Act.,
37. The right to information is a cherished right. Information and right to,
information are intended to be formidable tools in the hands of responsible,
citizens to fight corruption and to bring in transparency and accountability.,
The provisions of RTI Act should be enforced strictly and all efforts should,
be made to bring to light the necessary information under clause (b) of,
section 4(1) of the Act which relates to securing transparency and,
accountability in the working of public authorities and in discouraging,
"corruption. But in regard to other information,(that is information other than",
"those enumerated in section 4(1)(b) and (c) of the Act), equal importance",
and emphasis are given to other public interests (like confidentiality of,
"sensitive information, fidelity and fiduciary relationships, efficient operation",
"of governments, etc.). Indiscriminate and impractical demands or directions",
under RTI Act for disclosure of all and sundry information (unrelated to,
transparency and accountability in the functioning of public authorities and,
53,
eradication of corruption) would be counter-productive as it will adversely,
affect the efficiency of the administration and result in the executive getting,
bogged down with the non-productive work of collecting and furnishing,
"information. The Act should not be allowed to be misused or abused, to",
"become a tool to obstruct the national development and integration, or to",
"destroy the peace, tranquility and harmony among its citizens. Nor should it",
be converted into a tool of oppression or intimidation of honest officials,
striving to do their duty. The nation does not want a scenario where 75% of,
the staff of public authorities spends 75% of their time in collecting and,
furnishing information to applicants instead of discharging their regular,
duties. The threat of penalties under the RTI Act and the pressure of the,
authorities under the RTI Act should not lead to employees of a public,
"authorities prioritising ‘information furnishing’, at the cost of their normal",
and regular duties.,
Conclusion,
"38. In view of the foregoing, the order of the High Court directing the",
examining bodies to permit examinees to have inspection of their answer,
"books is affirmed, subject to the clarifications regarding the scope of the RTI",
54,
Act and the safeguards and conditions subject to which ‘information’ should,
be furnished. The appeals are disposed of accordingly.,
……………………….J,
[R. V. Raveendran],
……………………….J,
[A. K. Patnaik],
New Delhi;,
"August 9, 2011.",
REPORTABLE,
IN THE SUPREME COURT OF INDIA,
CIVIL APPELLATE JURISDICTION,
CIVIL APPEAL NO. OF 2013,
(arising out of SLP(C)No.22609 of 2012),
R.K. JAIN …. APPELLANT,
VERSUS,
UNION OF INDIA & ANR. ` ….RESPONDENTS,
J UD G M E N T,
"SUDHANSU JYOTI MUKHOPADHAYA, J.",
Leave granted.,
"2. In this appeal, the appellant challenges the final",
"judgment and order dated 20th April, 2012 passed by the",
Delhi High Court in L.P.A. No. 22/2012. In the said,
"order, the Division Bench dismissed the appeal against",
the order of the learned Single Judge dated 8th,
"December, 2011, wherein the Single Judge held that “the",
information sought by the appellant herein is the third,
party information wherein third party may plead a,
privacy defence and the proper question would be as to,
whether divulging of such an information is in the,
"public interest or not.” Thus, the matter has been",
remitted back to Chief Information Commissioner to,
1,
Page 1,
consider the issue after following the procedure under,
Section 11 of the Right to Information Act.,
3. The factual matrix of the case is as follows:,
The appellant filed an application to Central,
Public Information Officer (hereinafter referred to as,
the ‘CPIO’) under Section 6 of the Right to Information,
"Act, 2005 (hereinafter referred to as the ‘RTI Act’) on",
"7th October, 2009 seeking the copies of all note sheets",
and correspondence pages of file relating to one Ms.,
"Jyoti Balasundram, Member/CESTAT. The Under Secretary,",
who is the CPIO denied the information by impugned,
"letter dated 15th October, 2009 on the ground that the",
information sought attracts Clause 8(1)(j) of the RTI,
"Act, which reads as follows:­",
“R­20011­68/2009 – ADIC – CESTAT,
Government of India,
Ministry of Finance,
Department of Revenue,
"New Delhi, the 15.10.09",
To,
Shri R.K. Jain,
"1512­B, Bhishm Pitamah Marg,",
"Wazir Nagar,",
New Delhi – 110003,
Subject: Application under RTI Act.,
"Sir,",
Your RTI application No.RTI/09/2406 dated,
7.10.2009 seeks information from File No.27­,
2,
Page 2,
3/2002 Ad­1­C. The file contains analysis of,
Annual Confidential Report of Smt. Jyoti,
Balasundaram only which attracts clause 8 (1),
(j) of RTI Act. Therefore the information,
sought is denied.,
"Yours faithfully,",
(Victor James),
Under Secretary to the Govt. of India”,
"4. On an appeal under Section 19 of the RTI Act, the",
Director (Headquarters) and Appellate Authority by its,
"order dated 18th December, 2009 disallowed the same",
citing same ground as cited by the CPIO; the relevant,
portion of which reads as follows:,
“2. I have gone through the RTI application,
"dated 07.10.2009, wherein the Appellant had",
requested the following information;,
(A)Copies of all note sheets and,
correspondence pages of File No.,
27/3/2002 – Ad. IC relating to Ms. Jyoti,
Balasundaram.,
"(B)Inspection of all records, documents,",
files and note sheets of File,
No.27/3/2002 – Ad. IC.,
(C)Copies of records pointed out during /,
after inspection.,
3. I have gone through the reply dated,
"15.10.2009 of the Under Secretary, Ad. IC­",
CESTAT given to the Appellant stating that as,
the file contained analysis of the Annual,
"Confidential Report of Ms. Jyoti Balasundaram,",
furnishing of information is exempted under,
Section 9 (1) (j) of the R.T.I. Act.,
5. The provision of Section 8 (1) (j) of the,
"RTI Act, 2005 under which the information has",
been denied by the CPIO is reproduced,
hereunder:,
3,
Page 3,
“Information which relates to personal,
information the disclosure of which has no,
relationship to any public activity or,
"interest, or which would cause unwarranted",
invasion of the privacy of the individual,
unless the Central Public Information Officer,
or the State Public Information Officer or the,
"appellate authority, as the case may be, is",
satisfied that the larger public interest,
justifies the disclosure of such information……”,
6. File No.27/3/2002­ Ad.1C deals with follow­,
up action on the ACR for the year 2000­2001,
"in respect of Ms. Jyoti Balasundaram,",
"Member (Judicial), CEGAT” (now CESTAT).",
The matter discussed therein is personal,
and I am not inclined to accept the view of,
the Appellant the since Ms. Jyoti,
Balasundaram is holding the post of Member,
"(Judicial), CESTAT, larger public interest",
"is involved, which therefore, ousts the",
exemption provided under Section 8 (1) (j).,
"Moreover, Ms. Jyoti Balasundaram is still",
serving in the CESTAT and the ACR for the,
year 2000­2001 is still live and relevant,
insofar as her service is concerned.,
"Therefore, it may not be proper to rush up",
to the conclusion that the matter is over,
"and therefore, the information could have",
been given by the CPIO under Section 8(1),
(i). The file contains only 2 pages of,
the notes and 5 pages of the,
"correspondence, in which the ACR of the",
officer and the matter connected thereto,
"have been discussed, which is exempt from",
disclosure under the aforesaid Section.,
"The file contains no other information,",
which can be segregated and provided to the,
Appellant.,
"7. In view of the above, the appeal is",
disallowed.”,
"5. Thereafter, the appellant preferred a second",
appeal before the Central Information Commission under,
Section 19 (3) of the RTI Act which was also rejected,
"on 22nd April, 2010 with the following observations:­",
4,
Page 4,
“4. Appellant’s plea is that since the,
matter dealt in the above­mentioned file,
related to the integrity of a public,
"servant, the disclosure of the requested",
information should be authorized in public,
interest.,
5. It is not in doubt that the file,
referred to by the appellant related,
to the Annual Confidential Record of a,
"third­party, Ms. Jyoti Balasundaram",
and was specific to substantiation by,
the Reporting Officer of the comments,
made in her ACRs about the third –,
"party’s integrity. Therefore,",
appellant’s plea that the matter was,
about a public servant’s integrity,
per­se is not valid. The ACR examines,
all aspects of the performance and the,
personality of a public servant –,
integrity being one of them. An,
examination of the aspect of integrity,
"as part of the CR cannot, therefore,",
be equated with the vigilance enquiry,
against a public servant. Appellant,
was in error in equating the two.,
6. It has been the consistent position of,
this Commission that ACR grades can,
and should be disclosed to the person,
to whom the ACRs related and not to,
the third – parties except under,
exceptional circumstances.,
Commission’s decision in P.K. Sarvin,
Vs. Directorate General of Works,
(CPWD); Appeal No.,
CIC/WB/A/2007/00422; Date of Decision;,
19.02.2009 followed a Supreme Court,
order in Dev Dutt Vs. UOI (Civil,
Appeal No. 7631/2002).,
7. An examination on file of the comments,
made by the reporting and the,
reviewing officers in the ACRs of a,
"public servant, stands on the same",
footing as the ACRs itself. It,
"cannot, therefore, be authorized to be",
"disclosed to a third­party. In fact,",
even disclosure of such files to the,
5,
Page 5,
public servant to whom the ACRs may,
relate is itself open to debate.,
"8. In view of the above, I am not in a",
position to authorize disclosure of,
the information.”,
"6. On being aggrieved by the above order, the",
appellant filed a writ petition bearing W.P(C) No. 6756,
of 2010 before the Delhi High Court which was rejected,
by the learned Single Judge vide judgment dated 8th,
"December, 2011 relying on a judgment of Delhi High",
Court in Arvind Kejriwal vs. Central Public,
Information Officer reported in AIR 2010 Delhi 216.,
The learned Single Judge while observing that except in,
"cases involving overriding public interest, the ACR",
record of an officer cannot be disclosed to any person,
"other than the officer himself/herself, remanded the",
matter to the Central Information Commission (CIC for,
"short) for considering the issue whether, in the larger",
"public interest, the information sought by the",
appellant could be disclosed. It was observed that if,
the CIC comes to a conclusion that larger public,
interest justifies the disclosure of the information,
"sought by the appellant, the CIC would follow the",
procedure prescribed under Section 11 of Act.,
"7. On an appeal to the above order, by the impugned",
"judgment dated 20th April, 2012 the Division Bench of",
6,
Page 6,
Delhi High Court in LPA No.22 of 2012 dismissed the,
same. The Division Bench held that the judgment of the,
Delhi High Court Coordinate Bench in Arvind Kejriwal,
case (supra) binds the Court on all fours to the said,
case also.,
The Division Bench further held that the procedure,
under Section 11 (1) is mandatory and has to be,
followed which includes giving of notice to the,
concerned officer whose ACR was sought for. If that,
"officer, pleads private defence such defence has to be",
examined while deciding the issue as to whether the,
private defence is to prevail or there is an element of,
overriding public interest which would outweigh the,
private defence.,
"8. Mr. Prashant Bhushan, learned counsel for the",
appellant submitted that the appellant wanted,
"information in a separate file other than the ACR file,",
"namely, the “follow up action” which was taken by the",
Ministry of Finance about the remarks against,
‘integrity’ in the ACR of the Member. According to,
"him, it was different from asking the copy of the ACR",
"itself. However, we find that the learned Single Judge",
at the time of hearing ordered for production of the,
original records and after perusing the same came to,
7,
Page 7,
the conclusion that the information sought for was not,
different or distinguished from ACR. The learned,
Single Judge held that the said file contains,
correspondence in relation to the remarks recorded by,
the President of the CESTAT in relation to Ms. Jyoti,
"Balasundaram, a Member and also contains the reasons",
why the said remarks have eventually been dropped.,
"Therefore, recordings made in the said file constitute",
an integral part of the ACR record of the officer in,
question.,
Mr. Bhushan then submitted that ACR of a public,
servant has a relationship with public activity as he,
"discharges public duties and, therefore, the matter is",
of a public interest; asking for such information does,
not amount to any unwarranted invasion in the privacy,
of public servant. Referring to this Court’s decision,
"in the case of State of U.P. vs. Raj Narain, AIR 1975",
"SC 865, it was submitted that when such information can",
"be supplied to the Parliament, the information relating",
to the ACR cannot be treated as personal document or,
private document.,
9. It was also contended that with respect to this,
issue there are conflicting decisions of Division Bench,
of Kerala High Court in Centre for Earth Sciences,
8,
Page 8,
Studies vs. Anson Sebastian reported in 2010 ( 2) KLT,
233 and the Division Bench of Delhi High Court in,
Arvind Kejriwal vs. Central Public Information Officer,
reported in AIR 2010 Delhi 216.,
"10. Shri A. S. Chandiok, learned Additional Solicitor",
"General appearing for the respondents, in reply",
contended that the information relating to ACR relates,
to the personal information and may cause unwarranted,
"invasion of privacy of the individual, therefore,",
according to him the information sought for by the,
appellant relating to analysis of ACR of Ms. Jyoti,
Balasundaram is exempted under Section 8(1)(j) of the,
RTI Act and hence the same cannot be furnished to the,
appellant. He relied upon decision of this Court in,
Girish Ramchandra Deshpande vs. Central Information,
"Commissioner and others, reported in (2013) 1 SCC 212.",
"11. We have heard the learned counsel for the parties,",
"perused the records, the judgements as referred above",
and the relevant provisions of the Right to Information,
"Act, 2005.",
12. Section 8 deals with exemption from disclosure of,
"information. Under clause (j) of Section 8(1), there",
shall be no obligation to give any citizen information,
which relates to personal information the disclosure of,
9,
Page 9,
which has no relationship to any public activity or,
"interest, or which would cause unwarranted invasion of",
the privacy of the individual unless the Central Public,
Information Officer or the State Public Information,
Officer or the appellate authority is satisfied that,
the larger public interest justifies the disclosure of,
such information. The said clause reads as follows:­,
“Section 8 ­ Exemption from disclosure of,
information.­ (1) Notwithstanding anything,
"contained in this Act, there shall be no",
"obligation to give any citizen,­­",
xxx xxx xxx,
xxx xxx xxx,
(j) information which relates to personal,
information the disclosure of which has no,
"relationship to any public activity or interest,",
or which would cause unwarranted invasion of the,
privacy of the individual unless the Central,
Public Information Officer or the State Public,
"Information Officer or the appellate authority,",
"as the case may be, is satisfied that the larger",
public interest justifies the disclosure of such,
information:,
Provided that the information which cannot be,
denied to the Parliament or a State Legislature,
shall not be denied to any person.”,
13. On the other hand Section 11 deals with third,
party information and the circumstances when such,
information can be disclosed and the manner in which,
"it is to be disclosed, if so decided by the Competent",
"Authority. Under Section 11(1), if the information",
relates to or has been supplied by a third party and,
10,
Page 10,
"has been treated as confidential by the third party,",
and if the Central Public Information Officer or a,
State Public Information Officer intends to disclose,
any such information or record on a request made under,
"the Act, in such case after written notice to the third",
"party of the request, the Officer may disclose the",
"information, if the third party agrees to such request",
or if the public interest in disclosure outweighs in,
importance any possible harm or injury to the interests,
of such third party. Section 11(1) is quoted,
hereunder:,
“Section 11 ­ Third party information.­ (1),
Where a Central Public Information Officer or a,
"State Public Information Officer, as the case",
"may be, intends to disclose any information or",
"record, or part thereof on a request made under",
"this Act, which relates to or has been supplied",
by a third party and has been treated as,
"confidential by that third party, the Central",
Public Information Officer or State Public,
"Information Officer, as the case may be, shall,",
within five days from the receipt of the,
"request, give a written notice to such third",
party of the request and of the fact that the,
Central Public Information Officer or State,
"Public Information Officer, as the case may be,",
"intends to disclose the information or record,",
"or part thereof, and invite the third party to",
"make a submission in writing or orally,",
regarding whether the information should be,
"disclosed, and such submission of the third",
party shall be kept in view while taking a,
decision about disclosure of information:,
Provided that except in the case of trade or,
"commercial secrets protected by law, disclosure",
may be allowed if the public interest in,
disclosure outweighs in importance any possible,
11,
Page 11,
harm or injury to the interests of such third,
party.”,
14. In Centre for Earth Sciences Studies vs. Anson,
Sebastian reported in 2010(2) KLT 233 the Kerala High,
Court considered the question whether the information,
sought relates to personal information of other,
"employees, the disclosure of which is prohibited",
under Section 8(1) (j) of the RTI Act. In that case,
the Kerala High Court noticed that the information,
sought for by the first respondent pertains to copies,
of documents furnished in a domestic enquiry against,
one of the employees of the appellant­organization.,
Particulars of confidential reports maintained in,
respect of co­employees in the above said case (all,
of whom were Scientists) were sought from the,
appellant­organisation. The Division Bench of Kerala,
High Court after noticing the relevant provisions of,
RTI Act held that documents produced in a domestic,
enquiry cannot be treated as documents relating to,
"personal information of a person, disclosure of which",
will cause unwarranted invasion of privacy of such,
person. The Court further held that the confidential,
reports of the employees maintained by the employer,
cannot be treated as records pertaining to personal,
12,
Page 12,
information of an employee and publication of the,
same is not prohibited under Section 8(1) (j) of the,
RTI Act.,
15. The Delhi High Court in Arvind Kejriwal vs.,
Central Public Information Officer reported in AIR,
2010 Delhi 216 considered Section 11 of the RTI Act.,
The Court held that once the information seeker is,
"provided information relating to a third party, it is",
no longer in the private domain. Such information,
seeker can then disclose in turn such information to,
"the whole World. Therefore, for providing the",
information the procedure outlined under Section,
11(1) cannot be dispensed with. The following was,
the observation made by the Delhi High Court in,
Arvind Kejriwal (supra):,
"“22. Turning to the case on hand, the documents",
of which copies are sought are in the personal,
files of officers working at the levels of,
"Deputy Secretary, Joint Secretary, Director,",
Additional Secretary and Secretary in the,
Government of India. Appointments to these posts,
are made on a comparative assessment of the,
relative merits of various officers by a,
departmental promotion committee or a selection,
"committee, as the case may be. The evaluation of",
the past performance of these officers is,
contained in the ACRs. On the basis of the,
comparative assessment a grading is given. Such,
information cannot but be viewed as personal to,
such officers. Vis­à­vis a person who is not an,
employee of the Government of India and is,
seeking such information as a member of the,
"public, such information has to be viewed as",
13,
Page 13,
Constituting 'third party information'. This can,
be contrasted with a situation where a,
government employee is seeking information,
"concerning his own grading, ACR etc. That",
obviously does not involve 'third party',
information.,
"23. What is, however, important to note is that",
it is not as if such information is totally,
exempt from disclosure. When an application is,
"made seeking such information, notice would be",
issued by the CIC or the CPIOs or the State,
"Commission, as the case may be, to such 'third",
"party' and after hearing such third party, a",
decision will be taken by the CIC or the CPIOs,
or the State Commission whether or not to order,
disclosure of such information. The third party,
may plead a 'privacy' defence. But such defence,
"may, for good reasons, be overruled. In other",
"words, after following the procedure outlined in",
"Section 11(1) of the RTI Act, the CIC may still",
decide that information should be disclosed in,
public interest overruling any objection that,
the third party may have to the disclosure of,
such information.,
"24. Given the above procedure, it is not",
possible to agree with the submission of Mr.,
Bhushan that the word 'or' occurring in Section,
"11(1) in the phrase information ""which relates",
"to or has been supplied by a third party"" should",
"be read as 'and'. Clearly, information relating",
to a third party would also be third party,
information within the meaning of Section 11(1),
of the RTI Act. Information provided by such,
third party would of course also be third party,
information. These two distinct categories of,
third party information have been recognized,
under Section 11(1) of the Act. It is not,
possible for this Court in the circumstances to,
read the word 'or' as 'and'. The mere fact that,
"inspection of such files was permitted, without",
following the mandatory procedure under Section,
"11(1) does not mean that, at the stage of",
"furnishing copies of the documents inspected,",
"the said procedure can be waived. In fact, the",
procedure should have been followed even prior,
"to permitting inspection, but now the clock",
cannot be put back as far as that is concerned.,
14,
Page 14,
25. The logic of the Section 11(1) RTI Act is,
plain. Once the information seeker is provided,
"information relating to a third party, it is no",
longer in the private domain. Such information,
seeker can then disclose in turn such,
information to the whole world. There may be an,
officer who may not want the whole world to know,
why he or she was overlooked for promotion. The,
defence of privacy in such a case cannot be,
lightly brushed aside saying that since the,
officer is a public servant he or she cannot,
possibly fight shy of such disclosure. There may,
be yet another situation where the officer may,
have no qualms about such disclosure. And there,
may be a third category where the credentials of,
the officer appointed may be thought of as being,
in public interest to be disclosed. The,
importance of the post held may also be a factor,
that might weigh with the information officer.,
This exercise of weighing the competing,
interests can possibly be undertaken only after,
hearing all interested parties. Therefore the,
procedure under Section 11(1) RTI Act.,
"26. This Court, therefore, holds that the CIC",
was not justified in overruling the objection of,
the UOI on the basis of Section 11(1) of the,
RTI Act and directing the UOI and the DoPT to,
provide copies of the documents as sought by Mr.,
Kejriwal. Whatever may have been the past,
practice when disclosure was ordered of,
information contained in the files relating to,
appointment of officers and which information,
"included their ACRs, grading, vigilance",
"clearance etc., the mandatory procedure outlined",
under Section 11(1) cannot be dispensed with.,
The short question framed by this Court in the,
first paragraph of this judgment was answered in,
the affirmative by the CIC. This Court reverses,
the CIC's impugned order and answers it in the,
negative.,
27. The impugned order dated 12th June 2008 of,
the CIC and the consequential order dated 19th,
November 2008 of the CIC are hereby set aside.,
The appeals by Mr. Kejriwal will be restored to,
the file of the CIC for compliance with the,
procedure outlined under Section 11(1) RTI Act,
limited to the information Mr. Kejriwal now,
seeks.”,
15,
Page 15,
16. Recently similar issue fell for consideration,
before this Court in Girish Ramchandra Deshpande v.,
Central Information Commissioner and others reported in,
(2013) 1 SCC 212. That was a case in which Central,
Information Commissioner denied the information,
pertaining to the service career of the third party to,
the said case and also denied the details relating to,
"assets, liabilities, moveable and immovable properties",
of the third party on the ground that the information,
sought for was qualified to be personal information as,
defined in clause (j) of Section 8(1) of the RTI Act.,
In that case this Court also considered the question,
"whether the orders of censure/punishment, etc. are",
personal information and the performance of an,
"employee/officer in an organization, commonly known as",
Annual Confidential Report can be disclosed or not.,
This Court after hearing the parties and noticing the,
provisions of RTI Act held:,
“11. The petitioner herein sought for copies of,
"all memos, show­cause notices and",
censure/punishment awarded to the third,
respondent from his employer and also details,
viz. movable and immovable properties and also,
"the details of his investments, lending and",
borrowing from banks and other financial,
"institutions. Further, he has also sought for",
the details of gifts stated to have been,
"accepted by the third respondent, his family",
members and friends and relatives at the,
marriage of his son. The information mostly,
sought for finds a place in the income tax,
returns of the third respondent. The question,
16,
Page 16,
that has come up for consideration is: whether,
the abovementioned information sought for,
qualifies to be “personal information” as,
defined in clause (j) of Section 8(1) of the RTI,
Act.,
12. We are in agreement with the CIC and the,
courts below that the details called for by the,
petitioner i.e. copies of all memos issued to,
"the third respondent, show­cause notices and",
"orders of censure/punishment, etc. are qualified",
to be personal information as defined in clause,
(j) of Section 8(1) of the RTI Act. The,
performance of an employee/officer in an,
organisation is primarily a matter between the,
employee and the employer and normally those,
aspects are governed by the service rules which,
fall under the expression “personal,
"information”, the disclosure of which has no",
relationship to any public activity or public,
"interest. On the other hand, the disclosure of",
which would cause unwarranted invasion of,
"privacy of that individual. Of course, in a",
"given case, if the Central Public Information",
Officer or the State Public Information Officer,
or the appellate authority is satisfied that the,
larger public interest justifies the disclosure,
"of such information, appropriate orders could be",
passed but the petitioner cannot claim those,
details as a matter of right.,
13. The details disclosed by a person in his,
income tax returns are “personal information”,
which stand exempted from disclosure under,
"clause (j) of Section 8(1) of the RTI Act,",
unless involves a larger public interest and the,
Central Public Information Officer or the State,
Public Information Officer or the appellate,
authority is satisfied that the larger public,
interest justifies the disclosure of such,
information.,
14. The petitioner in the instant case has not,
made a bona fide public interest in seeking,
"information, the disclosure of such information",
would cause unwarranted invasion of privacy of,
the individual under Section 8(1)(j) of the RTI,
Act.,
"15. We are, therefore, of the view that the",
petitioner has not succeeded in establishing,
that the information sought for is for the,
"larger public interest. That being the fact, we",
are not inclined to entertain this special leave,
"petition. Hence, the same is dismissed.”",
17,
Page 17,
17. In view of the discussion made above and the,
decision in this Court in Girish Ramchandra,
"Deshpande(supra), as the appellant sought for",
inspection of documents relating to the ACR of the,
"Member, CESTAT, inter alia, relating to adverse",
entries in the ACR and the ‘follow up action’ taken,
"therein on the question of integrity, we find no reason",
to interfere with the impugned judgment passed by the,
Division Bench whereby the order passed by the learned,
"Single Judge was affirmed. In absence of any merit,",
the appeal is dismissed but there shall be no order as,
to costs.,
………..………………………………………..J.,
(G.S. SINGHVI),
………………………………………………….J.,
(SUDHANSU JYOTI,
MUKHOPADHAYA),
"NEW DELHI,",
"APRIL 16, 2013.",
18,
Page 18,
* IN THE HIGH COURT OF DELHI AT NEW DELHI,
"Date of decision: 13th July, 2012",
+ LPA No.229/2011,
% UNION PUBLIC SERVICE COMMISSION ....Appellant,
Through: Mr. Naresh Kaushik & Ms. Aditi,
"Gupta, Advs.",
Versus,
ANGESH KUMAR & ORS. ..... Respondents,
"Through: Mr. Rajesh Kumar Tiwari,",
Respondent No.2 in person.,
"Mr. B.V. Niren, Adv. for R-13.",
AND,
+ W.P.(C) NO.3316/2011,
% DURGESH KUMAR TRIPATHI & ORS. ....Petitioners,
"Through: Mr. Devendra Sharma, petitioner",
No.3 in person.,
Versus,
UNION PUBLIC SERVICE COMMISSION & ANR... Respondents,
Through: Mr. Naresh Kaushik & Ms. Aditi,
"Gupta, Advs.",
"Mr. Mohit Jolly, Adv. for R-2.",
CORAM :-,
HON’BLE THE ACTING CHIEF JUSTICE,
HON’BLE MR. JUSTICE RAJIV SAHAI ENDLAW,
LPA No.229/2011 & WP(C) No.3316/2011 Page 1 of 13,
"RAJIV SAHAI ENDLAW, J.",
1. LPA No.229/2011 impugns the order dated 04.02.2011of the learned,
Single Judge in Review Petition No.51/2011 preferred by the respondents,
seeking review of the order dated 13.01.2011 disposing of W.P.(C),
No.218/2011 preferred by the respondents.,
2. The twelve respondents in LPA No.229/2011 had appeared in the,
Civil Services Preliminary Examination held on 23.05.2010 by the appellant,
Union Public Service Commission (UPSC) and were unsuccessful therein.,
"They sought certain information under the Right to Information Act, 2005",
and which information was denied to them by the Public Information,
"Officer of the appellant UPSC. Aggrieved therefrom, they filed W.P.(C)",
No.6931/2010 which was dismissed vide order dated 08.10.2010 on account,
of pendency then of SLP No.23250/2008 preferred by the appellant UPSC,
before the Supreme Court against the judgment dated 03.09.2008 of a,
Division Bench of this Court in LPA No.313/2007 titled UPSC Vs. Shiv,
Shambhu entailing the same question. The respondents thereafter filed SLP,
No.32443/2010 to the Supreme Court. The Supreme Court vide order dated,
"18.11.2010 dismissed SLP No.23250/2008 of the UPSC, for the reason of",
the change effected by the UPSC in the pattern of examination with effect,
LPA No.229/2011 & WP(C) No.3316/2011 Page 2 of 13,
from the year 2011. Thereafter the Supreme Court vide order dated,
03.12.2010 disposed of the SLPNo.32443/2010 preferred by the respondents,
observing that since SLP No.23250/2008 against the judgment dated,
03.09.2008 of the Division Bench of this Court had been dismissed though,
"as infructuous, the case of the respondents herein will also be governed by",
the said judgment dated 03.09.2008.,
3. The respondents on the basis of said order dated 03.12.2010 of the,
Supreme Court again sought the information from the appellant UPSC and,
"upon not meeting with any success, filed W.P.(C) No.218/2011, from which",
"this appeal arises, seeking a direction to the appellant UPSC to disclose the",
following information:,
(i) details of marks (raw and scaled marks) obtained by the,
selected candidates in their respective optional subjects of the,
"Civil Services Preliminary Examination, 2010;",
(ii) details of the marks (raw and scaled) obtained by the,
respondents themselves in the said examination;,
(iii) the cut off marks of each optional subject in the said,
examination.,
LPA No.229/2011 & WP(C) No.3316/2011 Page 3 of 13,
4. The aforesaid writ petition was disposed of vide order dated,
"13.01.2011 observing, finding and holding as under:",
(i) that in view of the respondents having earlier applied under the,
RTI Act for the information and having thereafter preferred a,
"writ petition in this Court and SLP in the Supreme Court, the",
respondents were not required to again follow the procedure,
under the RTI Act;,
"(ii) that the law having been settled by the Supreme Court, there",
was no need to relegate the respondents to the process under,
the RTI Act;,
(iii) On the plea of the counsel for the appellant UPSC that raw,
marks were not available and thus could not be disclosed and,
that model answers were available only for some of the,
"questions, it was observed that whatsoever was not available",
with the UPSC need not be disclosed;,
(iv) no prejudice would be caused to anyone by disclosure of the,
result of the candidates who had qualified;,
LPA No.229/2011 & WP(C) No.3316/2011 Page 4 of 13,
(v) that the model answers as available with the UPSC were also,
"liable to disclosure, in accordance with the various dictas on",
the subject.,
The appellant UPSC was accordingly directed to make the disclosure.,
5. The respondents filed an application for review of the aforesaid order,
primarily challenging the statement of the counsel for the appellant UPSC,
that raw marks and the model answers for all the questions were not,
available. It was their contention that the appellant UPSC as per its rules,
was required to maintain the same for the prescribed period and which,
period had not expired.,
6. The learned Single Judge vide impugned order dated 04.02.2011 on,
"the said review application observed, found & held:",
(i) that the marks as appearing on the answer sheets are raw,
marks;,
(ii) that the answers sheets are required to be preserved for one,
year and thus the raw marks ought to be available with the,
UPSC;,
(iii) the contention of the appellant UPSC that raw marks did not,
subsist upon being scaled and thus could not be disclosed was,
LPA No.229/2011 & WP(C) No.3316/2011 Page 5 of 13,
rejected. It was held that the raw marks have to be necessarily,
available;,
(iv) that since all the questions in the examination were of objective,
"type, there could be no possibility of the model answers of any",
of them being not available;,
UPSC was accordingly directed to disclose the raw marks as well as,
the model answers of the questions in the examination.,
7. Notice of this appeal was issued and the operation of the order dated,
04.02.2011 of the learned Single Judge stayed.,
"8. W.P.(C) No.3316/2011 is filed, also seeking a direction to the UPSC",
to disclose the same information as subject matter of LPA No.229/2011,
relating to the same examination and qua the nine petitioners therein. While,
"the said petition was pending before the learned Single Judge, it was pointed",
out that the controversy therein was the same as in LPA No.229/2011.,
Accordingly the said writ petition was transferred to this Bench and the,
counsel for the petitioners in the writ petition has raised the same arguments,
as the counsel for the respondents in the LPA.,
"9. As would be apparent from the above, the respondents prior to filing",
the writ petition from which this appeal arises had filed a writ petition for,
LPA No.229/2011 & WP(C) No.3316/2011 Page 6 of 13,
the same relief but which writ petition was dismissed owing to the question,
entailed therein pending consideration before the Supreme Court in SLP,
No.23250/2008 preferred by the appellant; the respondents also had then,
preferred SLP No.32443/2010 and which SLP as aforesaid was disposed of,
with a direction that the respondents would be entitled to the same relief as,
given by the Division Bench of this Court vide judgment dated 03.09.2008,
in LPA No.313/2007. It thus becomes necessary to first examine the said,
LPA No.313/2007. The same was preferred against the judgment dated,
17.04.2007 of the Single Judge in W.P.(C) No.17583/2006. In the said writ,
"petition also, the same disclosure as in the present proceedings was sought",
"from the UPSC, though pertaining to the Civil Services (Preliminary)",
"Examination, 2006 and UPSC had contested the demand for such disclosure",
on the same grounds as being urged herein.,
"10. It is the case of UPSC, that the Civil Services Examination comprises",
"of two parts, i.e. the Preliminary Examination and the Main Examination",
which is followed by interview; that the Preliminary Examination is in the,
nature of a screening test to select twelve to thirteen times the number of,
vacancies in the order of merit; that the Preliminary Examination comprises,
LPA No.229/2011 & WP(C) No.3316/2011 Page 7 of 13,
"of two papers, one of General Studies which is compulsory and an optional",
paper from out of 23 subjects offered; that since different examinees opt for,
"different optional paper, UPSC has developed a methodology to make the",
"marks obtained in each subject comparable; through this methodology,",
scaling of marks is done so that the marks obtained in different subjects are,
comparable with each other; scientific formula is used for such scaling of,
marks; said scientific formula has been further changed and modified by the,
"experience, to suit the needs and requirement of UPSC; that insofar as the",
"marks of compulsory subject are concerned, no scaling is applied; that prior",
"to the examination, no cut offs can be presumed and the cut offs that are",
implemented are only post examination; the marks in the Preliminary,
Examination are not counted in the Main Examination.,
11. It is further the plea of UPSC that revealing the cut off marks and the,
keys to the question papers would enable unscrupulous persons to engineer,
and arrive at the scaling system which is kept secret by the UPSC; that if the,
"scaling system adopted by the UPSC is disclosed, then the entire system",
would be undermined and defeat the selection.,
LPA No.229/2011 & WP(C) No.3316/2011 Page 8 of 13,
12. The learned Single Judge in judgment dated 17.04.2007 in W.P.(C),
"No.17583/2006 found, observed and held, that the UPSC in a counter",
affidavit filed in the Supreme Court had already disclosed the scaling,
method adopted by it and thus the said scaling method could no longer be,
said to be secret or confidential; that there was no merit in the contention of,
UPSC that disclosure of cut off marks would undermine the selection,
process; that the disclosure of cut off marks of one year would not effect the,
examination of a subsequent year which is independent; that the data of one,
"year has no bearing on the following years. Accordingly, holding that the",
scaling method already stood disclosed and there was no bar to the,
"disclosure of the cut off marks and the model answers, direction for",
disclosure thereof was issued.,
"13. UPSC, as aforesaid preferred LPA No.313/2007 against the aforesaid",
judgment and which was dismissed on 03.09.2008. The SLP,
No.23250/2008 preferred by the UPSC to the Supreme Court has also been,
dismissed though as infructuous but without setting aside the judgments,
dated 17.04.2007 and 03.09.2008 (supra) of the Single Judge and the,
"Division Bench of this Court. Rather, when SLP No.32443/2010 preferred",
LPA No.229/2011 & WP(C) No.3316/2011 Page 9 of 13,
"by the respondents came up before the Supreme Court, the same was",
disposed of with a direction that the respondents shall be entitled to the,
relief as given by the High Court in the said judgments.,
"14. In the aforesaid factual scenario, we are unable to find any scope for",
further adjudication inasmuch as the Supreme Court has already directed the,
information as aforesaid to be supplied to the respondents. Once it is held,
"that the UPSC is bound to supply the said information, W.P.(C)",
No.3316/2011 will also have to be allowed inasmuch as the same,
information is sought therein. Though undoubtedly the petitioners in,
W.P.(C) No.3316/2011 ought to have first followed the procedure,
prescribed under the RTI Act but the petition having been entertained and,
having remained pending in this Court and this Court being required to,
"adjudicate the controversy in any case in LPA No.229/2011, need is not felt",
to at this stage relegate the petitioners to following the procedure under the,
RTI Act.,
15. The counsel for the UPSC before us has also urged that raw marks are,
an intermediary stage and ought not to be treated as information and only,
after scaling / actualization can the marks scored be computed and UPSC is,
not liable to disclose such intermediary marks. It is also argued that the,
LPA No.229/2011 & WP(C) No.3316/2011 Page 10 of 13,
counter affidavit in the Supreme Court on the basis whereof it has been held,
"that the method of scaling already stands disclosed, does not in fact disclose",
the same and the scaling system is thus not in public domain.,
"16. We are afraid, the latter of the aforesaid argument cannot be",
entertained at least before this Court. The Single Judge in judgment dated,
17.04.2007 (supra) held that the method of scaling stood disclosed in the,
counter affidavit in the Supreme Court and we do not find any argument to,
have been raised by UPSC before the Division Bench that the method of,
scaling had not been so disclosed. There is no discussion whatsoever in the,
"judgment dated 03.09.2008 of the Division Bench in this regard. Again, if it",
was the case of UPSC that the method of scaling had not been disclosed and,
"this Court had wrongly presumed the same to have been disclosed, the",
UPSC ought not to have got its SLP dismissed as infructuous and ought to,
have got the said matter adjudicated by the Supreme Court. On the,
"contrary, the Supreme Court by dismissal of the SLP of the UPSC and by",
order dated 03.12.2010 in the SLP of the respondents has expressly directed,
the disclosure of the method of scaling. After the matter has been dealt with,
"by the Supreme Court, through speaking order, it is not for this Court to re-",
examine the same.,
LPA No.229/2011 & WP(C) No.3316/2011 Page 11 of 13,
17. We are even otherwise of the view that there could be no secrecy or,
confidentiality about the method of scaling / actualization adopted by an,
examiner. The very objective of the RTI Act is transparency and,
accountability. The counsel for the UPSC has been unable to show as to,
how the disclosure of the scaling / actualization method prejudices the,
examination or affects it competitiveness. The Supreme Court in,
U.P.P.S.C. Vs. Subhash Chandra Dixit AIR (2004) SC 163 approved of the,
"practice of scaling / actualization, though in the subsequent decision in",
"Sanjay Singh Vs. U.P.P.S.C. AIR (2007) SC 950, certain reservations were",
"expressed with respect thereto. Be that as it may, though the non-disclosure",
of the method devised for scaling / actualization till declaration of the result,
"may be justified, it cannot be said to be justified after the result is declared.",
The Supreme Court in The Institute of Chartered Accountants of India Vs.,
Shaunak H. Satya (2011) 8 SCC 781 has held that the answer scripts and,
the answer keys are liable to disclosure after the result of the examination,
has been declared. If it were to be held that there is any secrecy /,
"confidentiality about the raw marks and the method of scaling, the",
possibility of errors therein or the same being manipulated cannot be ruled,
out. An examinee is entitled to satisfy himself / herself as to the fairness,
LPA No.229/2011 & WP(C) No.3316/2011 Page 12 of 13,
and transparency of the examination and the selection procedure and to,
"maintain such fairness and transparency disclosure of raw marks, cut off",
marks and the scaling method adopted is a must.,
18. We therefore do not find any merit in LPA No.229/2011and dismiss,
"the same. Axiomatically, W.P.(C) No.3316/2011 is allowed and the UPSC",
is directed to within eight weeks hereof disclose the information sought,
therein.,
19. Though UPSC has indulged in re-litigation but giving benefit of,
doubt to UPSC that the resistance to disclosure is an after effect of the pre-,
"RTI era, we refrain from imposing any costs on UPSC.",
"RAJIV SAHAI ENDLAW, J",
ACTING CHIEF JUSTICE,
"JULY 13 , 2012",
‘gsr ’,
LPA No.229/2011 & WP(C) No.3316/2011 Page 13 of 13,
REPORTABLE,
IN THE SUPREME COURT OF INDIA,
CIVIL APPELLATE JURISDICTION,
CIVIL APPEAL NO. 9095 OF 2012,
(Arising out of SLP(C) No.7529 of 2009),
Manohar s/o Manikrao Anchule ... Appellant,
Versus,
State of Maharashtra & Anr. ...,
Respondents,
J U D G M E N T,
"Swatanter Kumar, J.",
1. Leave granted.,
2. The present appeal is directed against the judgment dated,
"18th December, 2008 of the High Court of Bombay at Aurangabad",
vide which the High Court declined to interfere with the order,
"dated 26th February, 2008 passed by the State Information",
"Commissioner under the provisions of the Right to Information Act,",
2005 (for short ‘the Act’).,
1,
Page 1,
3. We may notice the facts in brief giving rise to the present,
"appeal. One Shri Ram Narayan, respondent No.2, a political",
"person belonging to the Nationalist Congress Party, Nanded filed",
"an application on 3rd January, 2007, before the appellant who was",
a nominated authority under Section 5 of the Act and was,
responsible for providing the information sought by the applicants.,
This application was moved under Section 6(1) of the Act.,
"4. In the application, the said respondent No.2 sought the",
following information:,
“a. The persons those who are,
appointed/selected through a reservation,
"category, their names, when they have",
appointed on the said post.,
b. When they have joined the said post.,
c. The report of the Caste Verification,
Committee of the persons those who,
are/were selected from the reserved,
category.,
d. The persons whose caste certificate,
is/was forwarded for the verification to the,
caste verification committee after due,
date. Whether any action is taken against,
"those persons? If any action is taken, then",
the detail information should be given,
within 30 days.”,
2,
Page 2,
"5. The appellant, at the relevant time, was working as",
Superintendent in the State Excise Department and was,
"designated as the Public Information Officer. Thus, he was",
discharging the functions required under the provisions of the Act.,
"After receiving the application from Respondent No.2, the",
appellant forwarded the application to the concerned Department,
"for collecting the information. Vide letter dated 19th January, 2007,",
the appellant had informed respondent No.2 that action on his,
application has been taken and the information asked for has,
been called from the concerned department and as and when the,
"information is received, the application could be answered",
accordingly. As respondent No.2 did not receive the information in,
"furtherance to his application dated 3rd January, 2007, he filed an",
"appeal within the prescribed period before the Collector, Nanded",
"on 1st March, 2007, under Section 19(1) of the Act. In the appeal,",
respondent No.2 sought the information for which he had,
submitted the application. This appeal was forwarded to the office,
of the appellant along with the application given by respondent,
No.2. No hearing was conducted by the office of the Collector at,
"Nanded. Vide letter dated 11th April, 2007, the then",
3,
Page 3,
"Superintendent, State Excise, Nanded, also designated as Public",
"Information Officer, further wrote to respondent No.2 that since he",
"had not mentioned the period for which the information is sought,",
it was not possible to supply the information and requested him to,
furnish the period for which such information was required. The,
"letter dated 11th April, 2007 reads as under :",
“... you have not mentioned the period of the,
"information which is sought by you. Therefore, it",
is not possible to supply the information.,
"Therefore, you should mention the period of",
information in your application so that it will be,
convenient to supply the information.”,
6. As already noticed there was no hearing before the Collector,
and the appeal before the Collector had not been decided. It is,
the case of the appellant that the communication from the,
"Collector's office dated 4th March, 2007 had not been received in",
the office of the appellant. Despite issuance of the letter dated,
"11th April, 2007, no information was received from respondent",
"No.2 and, thus, the information could not be furnished by the",
"appellant. On 4th April, 2007, the appellant was transferred from",
Nanded to Akola District and thus was not responsible for,
performance of the functions of the post that he was earlier,
4,
Page 4,
holding at Nanded and so also the functions of Designated Public,
Information Officer.,
"7. Respondent No.2, without awaiting the decision of the First",
"Appellate Authority (the Collector), filed an appeal before the",
State Information Commission at Aurangabad regarding non-,
providing of the information asked for. The said appeal came up,
for hearing before the Commission at Aurangabad who directed,
issuance of the notice to the office of the State Excise at Nanded.,
The Nanded office informed the appellant of the notice and that,
"the hearing was kept for 26th February, 2008 before the State",
Information Commission at Aurangabad. This was informed to the,
"appellant vide letter dated 12th February, 2008. On 25th February,",
"2008, the applicant forwarded an application through fax to the",
office of the State Information Commissioner bringing to their,
notice that for official reasons he was unable to appear before the,
Commissioner on that date and requested for grant of extension,
of time for that purpose. Relevant part of the letter dated 25th,
February 2008 reads as under:,
"“...hearing is fixed before the Hon'ble Minister,",
State Excise M.S.Mumbai in respect of licence of,
5,
Page 5,
CL-3 of Shivani Tq. and Dist. Akola. For that,
"purpose it is necessary for the Superintendent,",
"State Excise, Akola for the said hearing.",
"Therefore, it is not possible for him to remain",
present for hearing on 26.2.2008 before the,
"Hon'ble Commissioner, State Information",
"Commission, Aurangabad. Therefore, it is",
requested that next date be given for the said,
hearing.”,
"8. The State Information Commission, without considering the",
application and even the request made by the Officer who was,
present before the State Information Commission at the time of,
"hearing, allowed the appeal vide its order dated 26th February,",
"2008, directing the Commissioner for State Excise to initiate",
action against the appellant as per the Service Rules and that the,
action should be taken within two months and the same would be,
reported within one month thereafter to the State Information,
Commission. It will be useful to reproduce the relevant part of the,
"order dated 26th February, 2008, passed by the State Information",
Commissioner:,
“The applicant has prefer First appeal before,
"the Collector on 1.3.2007, the said application",
was received to the State Excise Office on,
4.3.2007 and on 11.4.2007 it was informed to,
"the applicant, that he has not mentioned the",
specific period regarding the information. The,
6,
Page 6,
"Public Information Officer, ought to have been",
informed to the applicant after receiving his first,
application regarding the specific period of,
"information but, here the public information",
"officer has not consider positively, the",
application of the applicant and not taken any,
decision. On the application given by the,
"applicant, the public information officer ought to",
have been informed to the applicant on or,
"before 28.1.2007 and as per the said Act, 2005",
there is delay 73 days for informing the,
"applicant and this shows that, the Public",
Information Officer has not perform his duty,
which is casted upon him and he is negligent it,
reveals after going through the documents by,
"the State Commission. Therefore, it is order",
"that, while considering above said matter, the",
"concerned Public Information Officer, has made",
delay of 73 days for informing to the applicant,
and therefore he has shown the negligence,
"while performing his duty. Therefore, it is",
ordered to the Commissioner of State Excise,
Maharashtra State to take appropriate action as,
per the Service Rules and Regulation against,
the concerned Public Information Officer within,
"the two months from this order and thereafter,",
the compliance report will be submitted within,
one month in the office of State Commission. As,
the applicant has not mentioned the specific,
period for information in his original application,
"and therefore, the Public Information Officer",
was unable to supply him information. There is,
no order to the Public Information Officer to give,
information to the applicant as per his,
application. It is necessary for all the applicant,
those who want the information under the said,
"Act, he should fill up the form properly and it is",
"confirmed that, whether he has given detail",
information while submitting the application as,
7,
Page 7,
per the proforma and this would be confirm,
"while making the application, otherwise the",
Public Information Officer will not in position to,
give expected information to the applicant. At,
"the time of filing the application, it is necessary",
"for the applicant, to fill-up the form properly and",
it was the prime duty of the applicant.,
"As per the above mentioned, the second appeal",
filed by the applicant is hereby decided as,
follows:,
O R D E R,
1. The appeal is decided.,
2. As the concern Public Information Officer,
has shown his negligence while performing,
"his duty, therefore, the Commissioner of",
"State Excise, State of Maharashtra has to",
take appropriate action as per the service,
rules within two months from the date of,
"order and thereafter, within one month",
they should submit their compliance report,
to the State Commission.”,
9. The legality and correctness of the above order was,
challenged by the appellant before the High Court by filing the,
writ petition under Article 226 of the Constitution of India. The,
appellant had taken various grounds challenging the correctness,
"of this order. However, the High Court, vide its order dated 18th",
"December, 2008, dismissed the writ petition observing that the",
appellant ought to have passed the appropriate orders in the,
8,
Page 8,
matter rather than keeping respondent No.2 waiting. It also,
noticed the contention that the application was so general and,
vague in nature that the information sought for could not be,
"provided. However, it did not accept the same.",
10. It is contended on behalf of the appellant that the order of,
"the State Information Commission, as affirmed by the High Court,",
is in violation of the principles of natural justice and is contrary to,
the very basic provisions of Section 20 of the Act. The order does,
not satisfy any of the ingredients spelt out in the provisions of,
Section 20(2) of the Act. The State Information Commission did,
"not decide the appeal, it only directed action to be taken against",
the appellant though the appeal as recorded in the order had,
"been decided. It can, therefore, be inferred that there is apparent",
non-application of mind.,
11. The impugned orders do not take the basic facts of the case,
into consideration that after a short duration the appellant was,
transferred from the post in question and had acted upon the,
"application seeking information within the prescribed time. Thus,",
9,
Page 9,
"no default, much less a negligence, was attributable to the",
appellant.,
"12. Despite service, nobody appeared on behalf of the State",
Information Commission. The State filed no counter affidavit.,
13. Since the primary controversy in the case revolves around,
"the interpretation of the provisions of Section 20 of the Act, it will",
be necessary for us to refer to the provisions of Section 20 of the,
Act at this stage itself. Section 20 reads as under:,
“Section 20: Penalties:-(1) Where the Central,
Information Commission or the State,
"Information Commission, as the case may be, at",
the time of deciding any complaint or appeal is,
of the opinion that the Central Public,
Information Officer or the State Public,
"Information Officer, as the case may be, has,",
"without any reasonable cause, refused to",
receive an application for information or has not,
furnished information within the time specified,
under sub-section (1) of section 7 or malafidely,
denied the request for information or knowingly,
"given incorrect, incomplete or misleading",
information or destroyed information which was,
the subject of the request or obstructed in any,
"manner in furnishing the information, it shall",
impose a penalty of two hundred and fifty,
rupees each day till application is received or,
"information is furnished, so however, the total",
amount of such penalty shall not exceed,
twenty-five thousand rupees:,
10,
Page 10,
Provided that the Central Public Information,
"Officer or the State Public Information Officer,",
"as the case may be, shall be given a reasonable",
opportunity of being heard before any penalty is,
imposed on him:,
Provided further that the burden of proving that,
he acted reasonably and diligently shall be on,
the Central Public Information Officer or the,
"State Public Information Officer, as the case",
may be.,
(2) Where the Central Information Commission,
"or the State Information Commission, as the",
"case may be, at the time of deciding any",
complaint or appeal is of the opinion that the,
Central Public Information Officer or the State,
"Public Information Officer, as the case may be,",
has without any reasonable cause and,
"persistently, failed to receive an application for",
information or has not furnished information,
within the time specified under sub-section (1),
of Section 7 or malafidely denied the request for,
"information or knowingly given incorrect,",
incomplete or misleading information or,
destroyed information which was the subject of,
"the request or obstructed in any manner in,",
"furnishing the information, it shall recommend",
for disciplinary action against the Central Public,
Information Officer or the State Public,
"Information Officer, as the case may be, under",
the service rules applicable to him.”,
14. State Information Commissions exercise very wide and,
certainly quasi judicial powers. In fact their functioning is akin to,
the judicial system rather than the executive decision making,
process.,
11,
Page 11,
15. It is a settled principle of law and does not require us to,
discuss this principle with any elaboration that adherence to the,
principles of natural justice is mandatory for such Tribunal or,
bodies discharging such functions.,
16. The State Information Commission has been vested with,
wide powers including imposition of penalty or taking of,
disciplinary action against the employees. Exercise of such power,
is bound to adversely affect or bring civil consequences to the,
"delinquent. Thus, the provisions relating to penalty or to penal",
consequences have to be construed strictly. It will not be open to,
the Court to give them such liberal construction that it would be,
beyond the specific language of the statute or would be in,
violation to the principles of natural justice.,
17. The State Information Commission is performing adjudicatory,
functions where two parties raise their respective issues to which,
the State Information Commission is expected to apply its mind,
and pass an order directing disclosure of the information asked for,
"or declining the same. Either way, it affects the rights of the",
parties who have raised rival contentions before the Commission.,
12,
Page 12,
"If there were no rival contentions, the matter would rest at the",
level of the designated Public Information Officer or immediately,
thereafter. It comes to the State Information Commission only at,
the appellate stage when rights and contentions require,
adjudication. The adjudicatory process essentially has to be in,
"consonance with the principles of natural justice, including the",
"doctrine of audi alteram partem. Hearing the parties, application",
of mind and recording of reasoned decision are the basic elements,
of natural justice. It is not expected of the Commission to breach,
"any of these principles, particularly when its orders are open to",
"judicial review. Much less to Tribunals or such Commissions, the",
Courts have even made compliance to the principle of rule of,
natural justice obligatory in the class of administrative matters as,
well. In the case of A.K. Kraipak & Ors. v. Union of India & Ors.,
"[(1969) 2 SCC 262], the Court held as under :",
“17. … It is not necessary to examine those,
decisions as there is a great deal of fresh,
thinking on the subject. The horizon of natural,
justice is constantly expanding…,
The aim of the rules of natural justice is to,
secure justice or to put it negatively to prevent,
miscarriage of justice. These rules can operate,
13,
Page 13,
only in areas not covered by any law validly,
made. In other words they do not supplant the,
law of the land but supplement it…. The,
concept of natural justice has undergone a,
great deal of change in recent years. In the past,
it was thought that it included just two rules,
namely: (1) no one shall be a judge in his own,
case (Nemo debet esse judex propria causa),
and (2) no decision shall be given against a,
party without affording him a reasonable,
hearing (audi alteram partem). Very soon,
thereafter a third rule was envisaged and that is,
that quasi-judicial enquiries must be held in,
"good faith, without bias and not arbitrarily or",
unreasonably. But in the course of years many,
more subsidiary rules came to be added to the,
rules of natural justice. Till very recently it was,
the opinion of the courts that unless the,
authority concerned was required by the law,
under which it functioned to act judicially there,
was no room for the application of the rules of,
natural justice. The validity of that limitation is,
now questioned. If the purpose of the rules of,
natural justice is to prevent miscarriage of,
justice one fails to see why those rules should,
be made inapplicable to administrative,
enquiries. Often times it is not easy to draw the,
line that demarcates administrative enquiries,
from quasi-judicial enquiries. Enquiries which,
were considered administrative at one time are,
now being considered as quasi-judicial in,
character. Arriving at a just decision is the aim,
of both quasi-judicial enquiries as well as,
administrative enquiries. An unjust decision in,
an administrative enquiry may have more far,
reaching effect than a decision in a quasi-,
judicial enquiry. As observed by this Court in,
Suresh Koshy George v. University of Kerala the,
rules of natural justice are not embodied rules.,
14,
Page 14,
What particular rule of natural justice should,
apply to a given case must depend to a great,
extent on the facts and circumstances of that,
"case, the framework of the law under which the",
enquiry is held and the constitution of the,
Tribunal or body of persons appointed for that,
purpose. Whenever a complaint is made before,
a court that some principle of natural justice,
had been contravened the court has to decide,
whether the observance of that rule was,
necessary for a just decision on the facts of that,
case.,
18. In the case of Kranti Associates (P) Ltd. & Ors. v. Masood,
"Ahmed Khan & Ors. [(2010) 9 SCC 496], the Court dealt with the",
question of demarcation between the administrative orders and,
quasi-judicial orders and the requirement of adherence to natural,
justice. The Court held as under :,
"“47. Summarising the above discussion, this",
Court holds:,
(a) In India the judicial trend has always been,
"to record reasons, even in administrative",
"decisions, if such decisions affect anyone",
prejudicially.,
(b) A quasi-judicial authority must record,
reasons in support of its conclusions.,
(c) Insistence on recording of reasons is,
meant to serve the wider principle of,
justice that justice must not only be done it,
must also appear to be done as well.,
15,
Page 15,
(d) Recording of reasons also operates as a,
valid restraint on any possible arbitrary,
exercise of judicial and quasi-judicial or,
even administrative power.,
(e) Reasons reassure that discretion has been,
exercised by the decision-maker on,
relevant grounds and by disregarding,
extraneous considerations.,
(f) Reasons have virtually become as,
indispensable a component of a decision-,
making process as observing principles of,
"natural justice by judicial, quasi-judicial",
and even by administrative bodies.,
(g) Reasons facilitate the process of judicial,
review by superior courts.,
(h) The ongoing judicial trend in all countries,
committed to rule of law and constitutional,
governance is in favour of reasoned,
decisions based on relevant facts. This is,
virtually the lifeblood of judicial decision-,
making justifying the principle that reason,
is the soul of justice.,
(i) Judicial or even quasi-judicial opinions,
these days can be as different as the,
judges and authorities who deliver them.,
All these decisions serve one common,
purpose which is to demonstrate by reason,
that the relevant factors have been,
objectively considered. This is important,
for sustaining the litigants' faith in the,
justice delivery system.,
(j) Insistence on reason is a requirement for,
both judicial accountability and,
transparency.,
16,
Page 16,
(k) If a judge or a quasi-judicial authority is not,
candid enough about his/her decision-,
making process then it is impossible to,
know whether the person deciding is,
faithful to the doctrine of precedent or to,
principles of incrementalism.,
(l) Reasons in support of decisions must be,
"cogent, clear and succinct. A pretence of",
reasons or “rubber-stamp reasons” is not,
to be equated with a valid decision-making,
process.,
(m) It cannot be doubted that transparency is,
the sine qua non of restraint on abuse of,
judicial powers. Transparency in decision-,
making not only makes the judges and,
decision-makers less prone to errors but,
also makes them subject to broader,
scrutiny. (See David Shapiro in Defence of,
Judicial Candor.),
(n) Since the requirement to record reasons,
emanates from the broad doctrine of,
"fairness in decision-making, the said",
requirement is now virtually a component,
of human rights and was considered part,
of Strasbourg Jurisprudence. See Ruiz,
"Torija v. Spain EHRR, at 562 para 29 and",
"Anya v. University of Oxford, wherein the",
Court referred to Article 6 of the European,
Convention of Human Rights which,
"requires,",
“adequate and intelligent reasons must be,
given for judicial decisions”.,
(o) In all common law jurisdictions judgments,
play a vital role in setting up precedents,
"for the future. Therefore, for development",
17,
Page 17,
"of law, requirement of giving reasons for",
the decision is of the essence and is,
virtually a part of ‘due process’.”,
19. The Court has also taken the view that even if cancellation of,
the poll were an administrative act that per se does not repel the,
application of the principles of natural justice. The Court further,
said that classification of functions as judicial or administrative is a,
"stultifying shibboleth discarded in India as in England. Today, in",
"our jurisprudence, the advances made by the natural justice far",
exceed old frontiers and if judicial creativity blights penumbral,
"areas, it is also for improving the quality of Government in",
injecting fair play into its wheels. Reference in this regard can be,
made to Mohinder Singh Gill v. Chief Election Commissioner,
[(1978) 1 SCC 405].,
20. Referring to the requirement of adherence to principles of,
"natural justice in adjudicatory process, this Court in the case of",
"Namit Sharma v. Union of India [2012 (8) SCALE 593], held as",
under:,
“97. It is not only appropriate but is a solemn,
"duty of every adjudicatory body, including the",
"tribunals, to state the reasons in support of its",
18,
Page 18,
decisions. Reasoning is the soul of a judgment,
and embodies one of the three pillars on which,
the very foundation of natural justice,
jurisprudence rests. It is informative to the,
"claimant of the basis for rejection of his claim,",
as well as provides the grounds for challenging,
the order before the higher,
"authority/constitutional court. The reasons,",
"therefore, enable the authorities, before whom",
"an order is challenged, to test the veracity and",
correctness of the impugned order. In the,
"present times, since the fine line of distinction",
between the functioning of the administrative,
and quasi-judicial bodies is gradually becoming,
"faint, even the administrative bodies are",
required to pass reasoned orders. In this,
"regard, reference can be made to the",
judgments of this Court in the cases of Siemens,
Engineering & Manufacturing Co. of India Ltd. v.,
Union of India & Anr. [(1976) 2 SCC 981]; and,
"Assistant Commissioner, Commrcial Tax",
"Department Works Contract and Leasing, Kota",
v. Shukla & Brothers [(2010) 4 SCC 785].”,
21. We may notice that proviso to Section 20(1) specifically,
contemplates that before imposing the penalty contemplated,
"under Section 20(1), the Commission shall give a reasonable",
"opportunity of being heard to the concerned officer. However,",
there is no such specific provision in relation to the matters,
covered under Section 20(2). Section 20(2) empowers the Central,
"or the State Information Commission, as the case may be, at the",
19,
Page 19,
time of deciding a complaint or appeal for the reasons stated in,
"that section, to recommend for disciplinary action to be taken",
against the Central Public Information Officer or the State Public,
"Information Officer, as the case may be, under the relevant",
service rules. Power to recommend disciplinary action is a power,
exercise of which may impose penal consequences. When such a,
"recommendation is received, the disciplinary authority would",
conduct the disciplinary proceedings in accordance with law and,
subject to satisfaction of the requirements of law. It is a,
‘recommendation’ and not a ‘mandate’ to conduct an enquiry.,
‘Recommendation’ must be seen in contradistinction to ‘direction’,
or ‘mandate’. But recommendation itself vests the delinquent,
Public Information Officer or State Public Information Officer with,
consequences which are of serious nature and can ultimately,
produce prejudicial results including misconduct within the,
relevant service rules and invite minor and/or major penalty.,
"22. Thus, the principles of natural justice have to be read into the",
provisions of Section 20(2). It is a settled canon of civil,
jurisprudence including service jurisprudence that no person be,
20,
Page 20,
condemned unheard. Directing disciplinary action is an order in,
the form of recommendation which has far reaching civil,
consequences. It will not be permissible to take the view that,
compliance with principles of natural justice is not a condition,
precedent to passing of a recommendation under Section 20(2).,
"In the case of Udit Narain Singh Malpharia v. Additional Member,",
"Board of Revenue, Bihar [AIR 1963 SC 786], the Court stressed",
upon compliance with the principles of natural justice in judicial or,
quasi-judicial proceedings. Absence of such specific requirement,
"would invalidate the order. The Court, reiterating the principles",
stated in the English Law in the case of King v. Electricity,
"Commissioner, held as under :",
“The following classic test laid down by Lord,
"Justice Atkin, as he then was, in King v.",
Electricity Commissioners and followed by this,
Court in more than one decision clearly brings,
out the meaning of the concept of judicial act:,
“Wherever anybody of persons having,
legal authority to determine questions,
"affecting the rights of subjects, and having",
"the duty to act judicially, act in excess of",
their legal authority they are subject to the,
controlling jurisdiction of the King's Bench,
Division exercised in these writs.”,
21,
Page 21,
Lord Justice Slesser in King v. London County,
Council dissected the concept of judicial act laid,
"down by Atkin, L.J., into the following heads in",
his judgment: “Wherever any body of persons,
(1) having legal authority (2) to determine,
questions affecting rights of subjects and (3),
having the duty to act judicially (4) act in excess,
of their legal authority — a writ of certiorari may,
issue.” It will be seen from the ingredients of,
judicial act that there must be a duty to act,
"judicially. A tribunal, therefore, exercising a",
judicial or quasi-judicial act cannot decide,
against the rights of a party without giving him,
a hearing or an opportunity to represent his,
case in the manner known to law. If the,
provisions of a particular statute or rules made,
"thereunder do not provide for it, principles of",
natural justice demand it. Any such order made,
without hearing the affected parties would be,
void. As a writ of certiorari will be granted to,
remove the record of proceedings of an inferior,
tribunal or authority exercising judicial or quasi-,
"judicial acts, ex hypothhesi it follows that the",
High Court in exercising its jurisdiction shall also,
act judicially in disposing of the proceedings,
before it.”,
"23. Thus, the principle is clear and settled that right of hearing,",
"even if not provided under a specific statute, the principles of",
"natural justice shall so demand, unless by specific law, it is",
excluded. It is more so when exercise of authority is likely to vest,
the person with consequences of civil nature.,
22,
Page 22,
"24. In light of the above principles, now we will examine whether",
there is any violation of principles of natural justice in the present,
case.,
"25. Vide letter dated 12th February, 2008, the appellant was",
"informed by the Excise Department, Nanded, when he was posted",
"at Akola that hearing was fixed for 25th February, 2008. He",
"submitted a request for adjournment which, admittedly, was",
received and placed before the office of the State Information,
"Commission. In addition thereto, another officer of the",
"Department had appeared, intimated the State Information",
"Commission and requested for adjournment, which was declined.",
It was not that the appellant had been avoiding appearance,
before the State Information Commission. It was the first date of,
"hearing and in the letter dated 25th February, 2008, he had given",
a reasonable cause for his absence before the Commission on 25th,
"February, 2008. However, on 26th February, 2008, the impugned",
order was passed. The appellant was entitled to a hearing before,
an order could be passed against him under the provisions of,
Section 20(2) of the Act. He was granted no such hearing. The,
23,
Page 23,
State Information Commission not only recommended but,
directed initiation of departmental proceedings against the,
appellant and even asked for the compliance report. If such a,
"harsh order was to be passed against the appellant, the least that",
was expected of the Commission was to grant him a,
hearing/reasonable opportunity to put forward his case. We are of,
the considered view that the State Information Commission should,
have granted an adjournment and heard the appellant before,
passing an order Section under 20(2) of the Act. On that ground,
"itself, the impugned order is liable to be set aside. It may be",
usefully noticed at this stage that the appellant had a genuine,
case to explain before the State Information Commission and to,
establish that his case did not call for any action within the,
"provisions of Section 20(2). Now, we would deal with the other",
contention on behalf of the appellant that the order itself does not,
"satisfy the requirements of Section 20(2) and, thus, is",
"unsustainable in law. For this purpose, it is necessary for the",
Court to analyse the requirement and scope of Section 20(2) of,
the Act. Section 20(2) empowers a Central Information,
Commission or the State Information Commission :,
24,
Page 24,
(a) at the time of deciding any complaint or appeal;,
(b) if it is of the opinion that the Central Public Information,
"Officer or the State Public Information Officer, as the case",
"may be, has without any reasonable cause and persistently,",
failed to receive an application for information or has not,
furnished information within the time specified under sub-,
section (1) of Section 7 (i.e. 30 days);,
(c) malafidely denied the request for information or intentionally,
"given incorrect, incomplete or misleading information; or",
(d) destroyed information which was the subject of the request,
or obstructed in any manner in furnishing the information;,
(e) then it shall recommend for disciplinary action against the,
stated persons under the relevant servicerules.,
"26. From the above dissected language of the provision, it is",
clear that first of all an opinion has to be formed by the,
Commission. This opinion is to be formed at the time of deciding,
any complaint or appeal after hearing the person concerned. The,
opinion formed has to have basis or reasons and must be relatable,
25,
Page 25,
to any of the defaults of the provision. It is a penal provision as it,
vests the delinquent with civil consequences of initiation of and/or,
even punishment in disciplinary proceedings. The grounds stated,
in the Section are exhaustive and it is not for the Commission to,
add other grounds which are not specifically stated in the,
language of Section 20(2). The section deals with two different,
"proceedings. Firstly, the appeal or complaint filed before the",
"Commission is to be decided and, secondly, if the Commission",
"forms such opinion, as contemplated under the provisions, then it",
can recommend that disciplinary proceedings be taken against,
the said delinquent Central Public Information Officer or State,
Public Information Officer. The purpose of the legislation in,
requiring both these proceedings to be taken together is obvious,
not only from the language of the section but even by applying,
the mischief rule wherein the provision is examined from the very,
purpose for which the provision has been enacted. While deciding,
"the complaint or the appeal, if the Commission finds that the",
"appeal is without merit or the complaint is without substance, the",
information need not be furnished for reasons to be recorded. If,
"such be the decision, the question of recommending disciplinary",
26,
Page 26,
"action under Section 20(2) may not arise. Still, there may be",
another situation that upon perusing the records of the appeal or,
"the complaint, the Commission may be of the opinion that none of",
"the defaults contemplated under Section 20(2) is satisfied and,",
"therefore, no action is called for. To put it simply, the Central or",
the State Commission have no jurisdiction to add to the,
exhaustive grounds of default mentioned in the provisions of,
Section 20(2). The case of default must strictly fall within the,
specified grounds of the provisions of Section 20(2). This provision,
has to be construed and applied strictly. Its ambit cannot be,
permitted to be enlarged at the whims of the Commission.,
"27. Now, let us examine if any one or more of the stated grounds",
under Section 20(2) were satisfied in the present case which,
would justify the recommendation by the Commission of taking,
disciplinary action against the appellant. The appellant had,
received the application from respondent No.2 requiring the,
"information sought for on 3rd January, 2007. He had, much within",
"the period of 30 days (specified under Section 7), sent the",
application to the concerned department requiring them to furnish,
27,
Page 27,
the requisite information. The information had not been received.,
"May be after the expiry of the prescribed period, another letter",
was written by the department to respondent No.2 to state the,
period for which the information was asked for. This letter was,
"written on 11th April, 2007. To this letter, respondent No.2 did not",
"respond at all. In fact, he made no further query to the office of",
the designated Public Information Officer as to the fate of his,
application and instead preferred an appeal before the Collector,
and thereafter appeal before the State Information Commission.,
"In the meanwhile, the appellant had been transferred in the",
"Excise Department from Nanded to Akola. At this stage, we may",
recapitulate the relevant dates. The application was filed on 3rd,
"January, 2007, upon which the appellant had acted and vide his",
"letter dated 19th January, 2007 had forwarded the application for",
requisite information to the concerned department. The appeal,
was filed by respondent no.2 under Section 19(1) of the Act before,
"the Collector, Nanded on 1st March, 2007. On 4th March, 2007, the",
appeal was forwarded to the office of the Excise Department. On,
"4th April, 2007, the appellant had been transferred from Nanded to",
"Akola. On 11th April, 2007, other officer from the Department had",
28,
Page 28,
asked respondent no.2 to specify the period for which the,
information was required. If the appellant was given an,
"opportunity and had appeared before the Commission, he might",
have been able to explain that there was reasonable cause and he,
had taken all reasonable steps within his power to comply with the,
provisions. The Commission is expected to formulate an opinion,
that must specifically record the finding as to which part of,
"Section 20(2) the case falls in. For instance, in relation to failure",
to receive an application for information or failure to furnish the,
"information within the period specified in Section 7(1), it should",
also record the opinion if such default was persistent and without,
reasonable cause.,
"28. It appears that the facts have not been correctly noticed and,",
"in any case, not in their entirety by the State Information",
Commission. It had formed an opinion that the appellant was,
negligent and had not performed the duty cast upon him. The,
Commission noticed that there was 73 days delay in informing the,
"applicant and, thus, there was negligence while performing duties.",
If one examines the provisions of Section 20(2) in their entirety,
29,
Page 29,
then it becomes obvious that every default on the part of the,
concerned officer may not result in issuance of a recommendation,
for disciplinary action. The case must fall in any of the specified,
defaults and reasoned finding has to be recorded by the,
Commission while making such recommendations. ‘Negligence’,
per se is not a ground on which proceedings under Section 20(2),
of the Act can be invoked. The Commission must return a finding,
"that such negligence, delay or default is persistent and without",
"reasonable cause. In our considered view, the Commission, in the",
"present case, has erred in not recording such definite finding. The",
"appellant herein had not failed to receive any application, had not",
failed to act within the period of 30 days (as he had written a,
"letter calling for information), had not malafidely denied the",
"request for information, had not furnished any incorrect or",
"misleading information, had not destroyed any information and",
had not obstructed the furnishing of the information. On the,
"contrary, he had taken steps to facilitate the providing of",
information by writing the stated letters. May be the letter dated,
"11th April, 2007 was not written within the period of 30 days",
requiring respondent No.2 to furnish details of the period for which,
30,
Page 30,
such information was required but the fact remained that such,
letter was written and respondent No.2 did not even bother to,
respond to the said enquiry. He just kept on filing appeal after,
"appeal. After April 4, 2007, the date when the appellant was",
"transferred to Akola, he was not responsible for the acts of",
omissions and/or commission of the office at Nanded.,
29. Another aspect of this case which needs to be examined by,
the Court is that the appeal itself has not been decided though it,
has so been recorded in the impugned order. The entire,
impugned order does not direct furnishing of the information,
asked for by respondent No.1. It does not say whether such,
information was required to be furnished or not or whether in the,
"facts of the case, it was required of respondent No.2 to respond to",
"the letter dated 11th April, 2007 written by the Department to him.",
All these matters were requiring decision of the Commission,
before it could recommend the disciplinary action against the,
"appellant, particularly, in the facts of the present case.",
30. All the attributable defaults of a Central or State Public,
Information Officer have to be without any reasonable cause and,
31,
Page 31,
"persistently. In other words, besides finding that any of the stated",
"defaults have been committed by such officer, the Commission",
has to further record its opinion that such default in relation to,
receiving of an application or not furnishing the information within,
the specified time was committed persistently and without a,
reasonable cause. Use of such language by the Legislature clearly,
shows that the expression ‘shall’ appearing before ‘recommend’,
has to be read and construed as ‘may’. There could be cases,
where there is reasonable cause shown and the officer is able to,
demonstrate that there was no persistent default on his part,
either in receiving the application or furnishing the requested,
"information. In such circumstances, the law does not require",
recommendation for disciplinary proceedings to be made. It is not,
the legislative mandate that irrespective of the facts and,
"circumstances of a given case, whether reasonable cause is",
"shown or not, the Commission must recommend disciplinary",
action merely because the application was not responded to,
within 30 days. Every case has to be examined on its own facts.,
We would hasten to add here that wherever reasonable cause is,
not shown to the satisfaction of the Commission and the,
32,
Page 32,
Commission is of the opinion that there is default in terms of the,
Section it must send the recommendation for disciplinary action in,
accordance with law to the concerned authority. In such,
"circumstances, it will have no choice but to send recommendatory",
report. The burden of forming an opinion in accordance with the,
provisions of Section 20(2) and principles of natural justice lies,
upon the Commission.,
31. We are of the considered opinion that the appellant had,
"shown that the default, if any on his part, was not without",
reasonable cause or result of a persistent default on his part. On,
"the contrary, he had taken steps within his power and authority to",
provide information to respondent No.2. It was for the department,
concerned to react and provide the information asked for. In the,
"present case, some default itself is attributable to respondent",
No.2 who did not even care to respond to the letter of the,
"department dated 11th April, 2007. The cumulative effect of the",
above discussion is that we are unable to sustain the order passed,
"by the State Information Commission dated 26th February, 2008",
and the judgment of the High Court under appeal. Both the,
33,
Page 33,
judgments are e set aside and the appeal is allowed. We further,
"direct that the disciplinary action, if any, initiated by the",
department against the appellant shall be withdrawn forthwith.,
"32. Further, we direct the State Information Commission to",
decide the appeal filed by respondent No.2 before it on merits and,
in accordance with law. It will also be open to the Commission to,
hear the appellant and pass any orders as contemplated under,
"Section 20(2), in furtherance to the notice issued to the appellant.",
"However, in the facts and circumstances of the case, there shall",
be no orders as to costs.,
"…………………………….,J.",
[Swatanter Kumar],
"…………………………….,J.",
[Madan B. Lokur],
New Delhi;,
"December 13, 2012",
34,
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